SHARE PURCHASE AGREEMENT November 28, 2007
November
28, 2007
|
ARTICLE
1 INTERPRETATION
|
2
|
|
|
1.1
|
DEFINITIONS
|
2
|
|
1.2
|
RULES
OF INTERPRETATION
|
6
|
|
IN
THIS AGREEMENT:
|
6
|
|
|
1.3
|
ENTIRE
AGREEMENT
|
7
|
|
1.4
|
TERMINATION
|
7
|
|
ARTICLE
2 PURCHASE AND SALE OF SHARES
|
7
|
|
|
2.1
|
PURCHASE
AND SALE OF SHARES
|
7
|
|
2.2
|
PAYMENT
OF PURCHASE PRICE
|
7
|
|
2.3
|
ESCROW
|
7
|
|
ARTICLE
3 REPRESENTATIONS AND WARRANTIES
|
8
|
|
|
3.1
|
REPRESENTATIONS
AND WARRANTIES OF THE SELLERS
|
8
|
|
3.1.1
|
ORGANIZATION
AND QUALIFICATION OF THE CORPORATION
|
8
|
|
3.1.2
|
ORGANIZATION
AND QUALIFICATION OF THE SELLERS
|
8
|
|
3.1.3
|
SUBSIDIARIES
|
8
|
|
3.1.4
|
CAPITALIZATION
AND TITLE
|
8
|
|
3.1.5
|
AUTHORIZATION
OF THE CORPORATION
|
9
|
|
3.1.6
|
AUTHORIZATION
OF THE SELLERS
|
9
|
|
3.1.7
|
FINANCIAL
STATEMENTS
|
9
|
|
3.1.8
|
LIABILITIES
|
10
|
|
3.1.9
|
AGREEMENTS
AND ACTIONS
|
10
|
|
3.1.10
|
OBLIGATIONS
TO RELATED PARTIES
|
10
|
|
3.1.11
|
CHANGES
|
10
|
|
3.1.12
|
TITLE
TO PROPERTIES AND ASSETS; LIENS, ETC.
|
11
|
|
3.1.13
|
INTELLECTUAL
PROPERTY
|
11
|
|
3.1.14
|
COMPLIANCE
WITH OTHER INSTRUMENTS- CORPORATION.
|
12
|
|
3.1.15
|
COMPLIANCE
WITH OTHER INSTRUMENTS-SELLERS.
|
12
|
|
3.1.16
|
LITIGATION
|
12
|
|
3.1.17
|
TAX
RETURNS AND PAYMENTS
|
13
|
|
3.1.18
|
EMPLOYEES
|
13
|
|
3.1.19
|
OBLIGATIONS
OF KEY EMPLOYEES
|
13
|
|
3.1.20
|
REGISTRATION
RIGHTS AND VOTING RIGHTS
|
13
|
|
3.1.21
|
COMPLIANCE
WITH LAWS; PERMITS
|
13
|
|
3.1.22
|
FULL
DISCLOSURE
|
14
|
|
3.1.23
|
INSURANCE
|
14
|
|
3.1.24
|
SECURITIES
LEGISLATION
|
14
|
|
3.1.25
|
SECTION
6.2 OF THE SHARE PURCHASE AGREEMENT
|
14
|
|
3.1.26
|
ACKNOWLEDGEMENT
OF EXCHANGE AGREEMENT
|
14
|
|
3.2
|
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
|
14
|
|
3.2.1
|
ORGANIZATION
AND QUALIFICATION
|
14
|
|
3.2.2
|
SUBSIDIARIES
|
15
|
|
3.2.3
|
CAPITALIZATION
OF THE BUYER
|
15
|
|
3.2.4
|
CAPITALIZATION
OF THE HOLDCO
|
15
|
|
3.3
|
NON-WAIVER/SCHEDULE
OF EXCEPTIONS
|
15
|
|
3.3.1
|
NON-WAIVER
|
15
|
|
3.3.2
|
SCHEDULE
OF EXCEPTIONS
|
15
|
|
3.4
|
TAX
COVENANTS
|
15
|
|
3.5
|
SURVIVAL
OF REPRESENTATIONS AND WARRANTIES
|
16
|
|
3.6
|
KNOWLEDGE
OF THE SELLERS
|
16
|
|
ARTICLE
4 NON-SOLICITATION AND NON-COMPETE
|
17
|
|
|
4.1
|
NON
- COMPETITION
|
17
|
|
4.2
|
NON
-SOLICITATION OF EMPLOYEES OR CONSULTANT.
|
17
|
|
4.3
|
NON-SOLICITATION
OF CLIENTS.
|
17
|
|
4.4
|
RESTRICTIONS
REASONABLE
|
17
|
|
4.5
|
INJUNCTIVE
RELIEF
|
18
|
|
ARTICLE
5 INDEMNIFICATION
|
18
|
|
|
5.1
|
INDEMNIFICATION
BY THE SELLERS
|
18
|
|
5.2
|
INDEMNIFICATION
BY THE BUYER
|
19
|
|
5.3
|
DEFENCE
OF CLAIMS
|
19
|
|
ARTICLE
6
|
20
|
|
|
6.1
|
CLOSING
DELIVERIES OF THE SELLER
|
20
|
|
6.2
|
CLOSING
DELIVERIES OF THE BUYER
|
21
|
|
6.3
|
PAYMENT
OF SHAREHOLDER AND RELATED PARTY LOANS
|
22
|
|
6.4
|
CLOSING
PAYMENTS
|
22
|
|
ARTICLE
7 GENERAL
|
22
|
|
|
7.1
|
EXPENSES
|
22
|
|
7.2
|
ENUREMENT
|
22
|
|
7.3
|
NOTICES
TO PARTIES
|
22
|
|
7.4
|
AMENDMENT
|
25
|
|
7.5
|
ASSIGNMENT
|
25
|
|
7.6
|
FURTHER
ASSURANCES
|
25
|
|
7.7
|
PUBLIC
ANNOUNCEMENTS
|
25
|
|
7.8
|
REMEDIES
CUMULATIVE
|
25
|
|
7.9
|
LIMITATION
OF LIABILITY
|
25
|
|
7.10
|
EXECUTION
AND DELIVERY
|
26
|
THIS
AGREEMENT made as of the 28th
day of
November,
2007,
BETWEEN:
Ophthalmic
Technologies Inc.
a
corporation incorporated under the laws of Ontario
(
the
"Corporation")
-
and
-
OTI
Holdings Limited
a
corporation incorporated under the laws of Ontario
(the
"Buyer" or “Newco”)
-
and
-
1161983
Ontario Limited,
a
corporation incorporated under the laws of Ontario
("1161983")
-
and
-
▇▇▇▇▇
Corporation Limited,
a
corporation incorporated under the laws of Ontario
("▇▇▇▇▇")
-
and
-
Triple
Net Properties Limited
a
corporation incorporated under the laws of Ontario
(“3Net”)
-
and
-
▇▇▇▇▇▇▇
▇▇▇▇▇
("▇▇▇▇▇")
-
and
-
▇▇▇▇▇▇▇
▇▇▇▇▇
("▇▇▇▇▇")
-
and
-
▇▇▇▇▇
▇▇▇▇▇
("▇▇▇▇▇")
-
and
-
▇▇▇▇▇▇
▇▇▇▇▇, in trust for ▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇
("▇▇▇▇▇▇")
-
and -
▇▇▇▇▇▇
▇▇▇▇▇
RECITALS:
|
1.
|
On
April 11, 2007, Exegenics Inc. entered into a share purchase agreement
with the Corporation (the "Share Purchase Agreement") pursuant to
which it
was granted an option to purchase shares of the Corporation from
1161983,
Grall, Weitz, ▇▇▇▇▇, and ▇▇▇▇▇▇ and pursuant to which the Corporation
undertook to dedicate its best efforts to procure options from the
other
shareholders of the Corporation who had not already granted such
options.
|
|
2.
|
Opko
Health, Inc. (“Opko”), a Delaware Corporation is the successor to
Exegenics Inc.
|
|
3.
|
On
November 9, 2007, Opko incorporated a wholly owned subsidiary, Ophthalmic
Technologies Holdings Limited (“Holdco”).
|
|
4.
|
On
November 9, 2007, Holdco incorporated a wholly owned subsidiary,
Newco for
the purpose of implementing the exercise of the Option.
|
|
5.
|
1161983,
▇▇▇▇▇, 3Net, Weitz, Weiss, ▇▇▇▇▇ and ▇▇▇▇▇▇ (collectively, the "Sellers"
and each a "Seller"), are, as of the date hereof, the legal and beneficial
owner of all of the issued and outstanding shares of the Corporation,
other than the shares of the Corporation held by Opko Inc. in accordance
with the Capitalization Table attached as Schedule "A" hereto.
|
|
6.
|
The
Buyer wishes to purchase all, but not less than all, of the issued
and
outstanding shares of the Corporation held by the Sellers and each
Seller
wishes to sell all, but not less than all, of the issued and outstanding
shares of the Corporation such Seller holds.
|
|
7.
|
Opko,
the Buyer and the Seller are parties to that certain Exchange and
Support
Agreement of even date (the “Exchange
Agreement”).
|
IN
CONSIDERATION
of the
premises and the mutual agreements in this Agreement, and of other consideration
(the receipt and sufficiency of which are acknowledged by each of the Parties),
the Parties agree as follows:
ARTICLE
1
INTERPRETATION
|
1.1
|
Definitions
|
In
this
Agreement,
“Affiliate”
means,
with respect to any Person, (i) any other Person directly or indirectly
controlling, controlled by, or under common control with such Person, (ii)
any
Person owning or controlling ten percent or more of the outstanding voting
interests of such Person, (iii) any officer, director, or general partner of
such Person, (iv) any family member of such Person or any trust, family limited
partnership or other similar entity controlled by such Person or his or her
family members, or (v) any Person who is an officer, director, general partner,
trustee, or holder of ten percent or more of the voting interests of any Person
described in clauses (i) through (iv). For purposes of this definition, the
terms “controlling”,
“controlled
by,”
or
“under
common control with”
shall
mean the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise;
-2-
“Agreement”
means
this agreement, including all schedules, and all amendments or restatements
as
permitted, and references to “Article”,
“Section”
or
“Schedule”
mean
the specified Article, Section or Schedule of this Agreement;
"Articles"
means
the articles of incorporation of the Corporation dated April 16, 1993, and
as
may be amended or restated from time to time;
"Business"
means
the business of providing ophthalmic ultrasound and optical coherence tomography
(OCT) equipment for ophthalmology;
“Business
Day”
means
any day except a Saturday, Sunday or any day on which banks are generally not
open for business in either of the Cities of Toronto, Ontario and New York,
New
York;
“Canadian
Dollar Equivalent”
means,
in respect of an amount expressed in a currency other than Canadian dollars
(the
“Foreign
Currency Amount”)
at any
date, the product obtained by multiplying:
(A)
the
Foreign Currency Amount; by
(B)
the
noon spot exchange rate on such date for such foreign currency expressed in
Canadian dollars as reported by the Bank of Canada or, if such spot exchange
rate is not available, such exchange rate on such date for such foreign currency
expressed in Canadian dollars as may be deemed by the Board of Directors in
good
faith to be appropriate for such purpose.
"Claim"
means
any demand, action, suit, proceeding, claim, assessment, judgment or settlement
or compromise relating thereto which may give rise to a right to
indemnification;
"Closing"
means
the completion of the sale to, and purchase by, the Buyer of the Shares on
the
date hereof and the completion of all other transactions contemplated by this
Agreement which are to occur contemporaneously with the purchase and sale of
the
Shares;
"Closing
Document"
means
any document delivered at or subsequent to the Closing as provided in or
pursuant to, this Agreement;
"Competitive
Business"
means
the business of any Person that is similar to or competes with the
Business;
-3-
"Corporation"
means
Ophthalmic Technologies Inc.;
“▇▇▇▇▇
Escrow Shares”
means
10,323.94 Exchangeable Shares;
"Employment
Contracts"
means
employment agreements with the Key Employees to be delivered as a condition
precedent to Closing;
"Escrow
Shares" has
the
meaning set out in Section 2.3;
“Exchangeable
Shares”
means
the exchangeable shares in the capital of the Buyer;
“Financial
Statements”
means
the financial statements set out in Section 3.1.7
hereto;
“Financial
Statement Date”
means
April 30, 2007;
"including"
means
"including
without limitation''
and the
term "including"
shall
not be construed to limit any general statement which it follows to the specific
or similar items or matters immediately following it;
“Law”
means
any federal, state, provincial, municipal, local or foreign statute, law,
by-law, ordinance, regulation, rule, code, order or rule of or duty under common
law, including any statute, law, by-law, ordinance, regulation, rule, code,
order or rule of or duty under common law in Canada, the United States, any
province or territory of Canada or any state or territory of the United
States.
"Loss"
and
"Losses"
have
the meaning set out in ARTICLE
5;
"ordinary
course"
when
used in relation to the conduct of the Business means any transaction which
constitutes an ordinary day-to-day business activity of the Corporation
conducted in a commercially reasonable and businesslike manner consistent with
the Corporation's past practices;
"Parties"
means
the Buyer and the Sellers, collectively, and "Party" means any one of
them;
“Person”
means
any individual, sole proprietorship, partnership, firm, entity, unincorporated
association, unincorporated syndicate, unincorporated organization, trust,
body
corporate, government, government regulatory authority, governmental department,
agency, commission, board, tribunal, dispute settlement panel or body, bureau
or
court, and where the context requires, any of the above when they are acting
as
trustee, executor, administrator or other legal representative;
"Purchase
Price"
shall
be equal to the number of Exchangeable Shares granted to all of the Sellers
pursuant to Section 2.2
multiplied by US$3.55;
"Representative"
means
each director, officer, employee, agent, solicitor, accountant, professional
advisor and other representative of an Indemnified Party;
-4-
"Restricted
Period"
means
the later of the last day of:
(i)
the
period commencing on the Closing and ending 3 years after the Closing; and
(ii)
(a)
if
▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇ ceases to be an employee of the Corporation at any time
during the first three years following the Closing, the period commencing on
the
date ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇, as the case may be, ceases to be an employee of
the
Corporation and ending 2 years after such date; and
(b) if
▇▇▇▇▇
or ▇▇▇▇▇▇ ▇▇▇▇▇ ceases to be an employee of the Corporation at any time after
the first three years following the date of Closing, the period commencing
on
the date ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇, as the case may be, ceases to be an employee
of
the Corporation and ending 6 months after such date, provided that the
restricted period may be extended by the Corporation for a further 18 months
in
accordance with the terms of the non-competition agreement dated as of the
date
hereof, between ▇▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇, as the case may be and the
Corporation.
“Schedule
of Exceptions”
means
the schedule so named and attached to this Agreement.
"Tax"
and
"Taxes"
mean,
with respect to any Person:
|
(a)
|
all
income taxes (including any tax on or based upon net income, gross
income,
income as specially defined, earnings, profits or selected items
of
income) and all capital taxes, gross receipts taxes, environmental
taxes,
sales taxes, use taxes, ad valorem taxes, value added taxes, transfer
taxes, franchise taxes, licence taxes, withholding taxes, payroll
taxes,
employment taxes, Canada Pension Plan premiums, excise, severance,
social
security premiums, workers' compensation premiums, employment insurance
or
compensation premiums, stamp taxes, occupation taxes, premium taxes,
property taxes, windfall profits taxes, alternative or add-on minimum
taxes, goods and services tax, customs duties or other taxes, fees,
imposts, assessments or charges of any kind whatsoever, together
with any
interest and any penalties or additional amounts imposed by any taxing
authority (domestic or foreign) on such Person, and any interest,
penalties, additional taxes and additions to tax imposed with respect
to
the foregoing; and
|
|
(b)
|
any
liability for the payment of any amount of the type described in
the
immediately preceding subsection (a) of another
Person.
|
-5-
|
1.2
|
Rules
of Interpretation
|
In
this
Agreement:
|
(a)
|
Consent
-
Whenever a provision of this Agreement requires an approval or consent
and
such approval or consent is not delivered within the applicable time
limit, then, unless otherwise specified, the Party whose consent
or
approval is required will be conclusively deemed to have withheld
its
approval or consent.
|
|
(b)
|
Currency
-
Unless otherwise specified, all references to money amounts are to
the
lawful currency of the United States of
America.
|
|
(c)
|
|
(d)
|
Headings
-
Headings of Articles and Sections are inserted for convenience of
reference only and do not affect the construction or interpretation
of
this Agreement.
|
|
(e)
|
Number
and Gender
-
Unless the context otherwise requires, words importing the singular
include the plural and vice versa and words importing gender include
all
genders.
|
|
(f)
|
Severability
-
If, in any jurisdiction, any provision of this Agreement or its
application to any party or circumstance is restricted, prohibited
or
unenforceable, such provision will, as to such jurisdiction, be
ineffective only to the extent of such restriction, prohibition or
unenforceability without invalidating the remaining provisions of
this
Agreement and without affecting the validity or enforceability of
such
provision in any other jurisdiction or without affecting its application
to other Parties or circumstances.
|
|
(g)
|
Statutory
references
-
A reference to a statute includes all regulations made pursuant to
such
statute and, unless otherwise specified, the provisions of any statute
or
regulation that amends, supplements or supersedes any such statute
or any
such regulation.
|
|
(h)
|
Time
-
Time is of the essence in the performance of the Parties’ respective
obligations.
|
|
(i)
|
Time
Periods
-
Unless otherwise specified, time periods within or following which
any
payment is to be made or act is to be done are calculated by excluding
the
day on which the period commences and including the day on which
the
period ends and by extending the period to the next Business Day
if the
last day of the period is not a Business
Day.
|
-6-
|
1.3
|
Entire
Agreement
|
This
Agreement together with the Share Purchase Agreement, the Exchangeable Share
Provisions, the Exchange and Support Agreement and the documents delivered
pursuant to such agreements constitutes the entire agreement between the Parties
and sets out all the covenants, promises, warranties, representations,
conditions, understandings and agreements between the Parties pertaining to
the
subject matter of this Agreement and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written. There
are
no covenants, promises, warranties, representations, conditions, understandings
or other agreements, oral or written, express, implied or collateral between
the
Parties in connection with the subject matter of this Agreement except as
specifically set forth in this Agreement and the Exchangeable Share
Provisions.
|
1.4
|
Termination
|
Section
6
of the Share Purchase Agreement is hereby terminated and is of not further
force
or effect.
ARTICLE
2
PURCHASE
AND SALE OF SHARES
|
2.1
|
Purchase
and Sale of Shares
|
The
Buyer
agrees to purchase the Shares for the Purchase Price and Sellers agrees to
sell
and transfer the Shares to the Buyer for the Purchase Price.
|
2.2
|
Payment
of Purchase Price
|
The
Purchase Price shall be paid to each Seller by issuing to such Seller on the
date hereof such number of Exchangeable Shares as is equal to the number of
shares of the Corporation owned by such Seller multiplied by
20,730.80 On
the
date hereof, the
Buyer, the Seller and Opko shall deliver an Exchange and Support Agreement
with
respect to such Exchangeable Shares.
|
2.3
|
Escrow
|
As
security for the obligations of the Sellers, under ARTICLE
5,
on the
date hereof, each Seller shall direct that 15% of the Exchangeable Shares issued
to such Seller in satisfaction of the Purchase Price shall be deposited with
Fraser, Milner, Casgrain LLP as escrow agent (the "Escrow
Agent"),
who
shall hold such shares (collectively, the "Escrow
Shares")
pursuant to the terms of an agreement substantially in the form attached hereto
as Schedule 2.3
hereto
(the "Escrow
Agreement").
-7-
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
|
3.1
|
Representations
and Warranties of the
Sellers
|
Other
than with respect to ▇▇▇▇▇ ▇▇▇▇▇ whose representations shall be deemed to be
several and separate and not joint and several, Sections 3.1.2
(Organization and Qualification of the Sellers), 3.1.4(b)
(Title),
3.1.6
(Authorization of the Sellers), and 3.1.15
(Compliance with other instruments-Sellers) which representations shall be
deemed to be several and separate and not joint and several, the Sellers jointly
and severally, represent and warrant to the Buyer as set out in the following
Subsections of this Section and acknowledge that the Buyer is relying upon
such
representations and warranties in entering into this Agreement.
|
3.1.1
|
Organization
and Qualification of the
Corporation
|
The
Corporation is duly organized and validly existing under the laws of Ontario,
Canada. The Corporation has all requisite corporate power and authority to
own
and operate its properties and assets, to issue shares, and to carry out the
provisions of this Agreement and to carry on its business as presently
conducted.
|
3.1.2
|
Organization
and Qualification of the
Sellers
|
Each
Seller that is a Corporation is a duly organized and validly existing under
the
laws of Ontario, Canada. Each Seller that is a Corporation has all requisite
corporate power and authority to own and operate its properties and assets,
to
issue shares, and to carry out the provisions of this Agreement and to carry
on
its business as presently conducted.
|
3.1.3
|
Subsidiaries
|
Save
and
except as disclosed in the Schedule of Exceptions, the Corporation does not
own
or control any equity, security or other interest of any other corporation,
limited partnership or other business entity.
|
3.1.4
|
Capitalization
and Title
|
|
(a)
|
The
authorized share capital of the Corporation consists of an unlimited
number of shares of Common Stock with no par value ("Common
Stock"),
of which 200.42 shares are issued and outstanding in accordance with
the
Capitalization Table set out in Schedule "A" hereto (the “Capitalization
Table”).
All such Shares have been issued as fully paid and non-assessable.
|
|
(b)
|
Each
Seller is the registered and beneficial owner of the Common Stock
set out
opposite such Sellers name on the Capitalization Table (collectively,
the
“Purchased
Shares”)
and has good and marketable title thereto. On Closing, the Buyer
will
acquire good and marketable title to the Purchased Shares. There
are no
restrictions on transfer of the Purchased Shares other than pursuant
to
the Articles of the Corporation.
|
-8-
|
(c)
|
Except
for the option to ▇▇▇▇▇▇ ▇▇▇▇▇, as disclosed in the Financial Statements,
there are no outstanding options, warrants, rights (including conversion
or pre-emptive rights and rights of first refusal), proxy or shareholder
agreements, or agreements of any kind for the purchase or acquisition
of
any of the securities of the
Corporation.
|
|
(d)
|
All
issued and outstanding shares of the Corporation's Common Stock (i)
have
been duly authorized and validly issued and are fully paid and
non-assessable, (ii) were issued in compliance with all applicable
Canadian laws concerning the issuance of such securities and (iii)
are
free and clear of any liens or encumbrances, provided, however, that
such
shares may be subject to restrictions on transfer under U.S., Canadian
or
any applicable state or provincial securities laws as set forth herein,
or
as otherwise required by such laws of the time the transfer is
proposed.
|
|
3.1.5
|
Authorization
of the Corporation
|
The
Corporation has the full power and authority to execute, enter into and perform
its obligations under this Agreement. In the case of the Corporation this
Agreement has been duly authorized by all of the necessary corporate actions.
This Agreement constitutes valid and legally binding obligations of the
Corporation enforceable against it in accordance with its terms, all except
as
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and other laws of general application affecting
enforcement of creditors' rights generally, and as limited by laws relating
to
the availability of specific performance, injunctive relief or other equitable
remedies.
|
3.1.6
|
Authorization
of the Sellers
|
Each
Seller has the full power and authority to execute, enter into and perform
its
obligations under this Agreement. In the case of each Seller who is a
Corporation, this Agreement has been duly authorized by all of the necessary
corporate actions. This Agreement constitutes valid and legally binding
obligations of each Seller, enforceable against such Seller in accordance with
its terms, all except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and other laws of general
application affecting enforcement of creditors' rights generally, and as limited
by laws relating to the availability of specific performance, injunctive relief
or other equitable remedies.
|
3.1.7
|
Financial
Statements
|
Except
as
set forth in the Schedule of Exceptions, the Audited financial statement of
the
Corporation for the period ended April 30, 2006 and April 30, 2007 and the
unaudited financial statements for the period ended June 30, 2007, copies of
which have been delivered to the Buyer and are attached hereto as Schedule
3.1.7, together with the notes thereto, are complete and correct in all material
respect, have been prepared in accordance with generally accepted accounting
principles in the United States, applied on a consistent basis throughout the
periods indicated and fairly present the financial condition and results of
operations of the Corporation as of the respective dates thereof and for the
respective periods indicated therein.
-9-
|
3.1.8
|
Liabilities
|
Except
as
set forth in Schedule of Exceptions and the Financial Statements, the
Corporation has no debts and, to the best of its knowledge, knows of no
contingent debts, not disclosed in the financial statements, except current
debts incurred in the ordinary course if business which have not been, either
in
any individual case or in the aggregate, materially adverse.
|
3.1.9
|
Agreements
and Actions
|
Except
as
set forth in the Schedule of Exceptions, (i) there are no judgments, orders,
writs or decrees to which the Corporation is a party or to its knowledge by
which it is bound (ii) there are no agreements, instruments, contracts or
proposed transactions, which may involve (a) obligations (contingent or
otherwise) of, or payments to, the Corporation in excess of $15,000, or (b)
the
transfer or license of any patent, copyright, trade secret or other proprietary
right to or from the Corporation (other than licenses arising from the purchase
of "off the shelf" or other standard products).
|
3.1.10
|
Obligations
to Related Parties
|
Except
as
set forth in the Schedule of Exceptions or the Financial Statements, there
are
no obligations of the Corporation to officers, directors, shareholders, or
employees of the Corporation other than (a) for payment of salary for services
rendered and (b) reimbursement for reasonable expenses incurred on behalf of
the
Corporation. No officer, director or shareholder, or any member of their
immediate families, is, directly or indirectly, interested in any material
contract with the Corporation (other than such contracts as relate to any such
person's ownership of shares or other securities of the Corporation). The
Corporation is not a guarantor or indemnitor of any indebtedness of any other
person or corporation.
|
3.1.11
|
Changes
|
Except
as
set forth in Schedule of Exceptions, since the Financial Statement Date, there
has not been to the Corporation's knowledge:
|
(a)
|
any
change in assets, liabilities or operations of the Corporation from
that
reflected in the Financial Statements, other than changes in the
ordinary
course of business, none of which individually or in the aggregate
has had
a material adverse effect on such assets, liabilities or operations
of the
Corporation.
|
|
(b)
|
any
change, except in the ordinary course of business, in the contingent
obligations of the Corporation by way of guaranty, endorsement, indemnity,
warranty or otherwise;
|
-10-
|
(c)
|
any
damage, destruction or loss whether or not covered by insurance,
materially and adversely affecting the properties, business or prospects
or financial condition of the
Corporation;
|
|
(d)
|
any
waiver by the Corporation of a valuable right or of a material debt
owed
to it;
|
|
(e)
|
any
direct or indirect loans by the Corporation to any shareholder, employee,
officer or director of the
Corporation;
|
|
(f)
|
any
material change in any compensation arrangement or agreement with
any
employee, officer, director or
shareholder;
|
|
(g)
|
any
declaration or payment of any dividend or other distribution of the
assets
of the Corporation;
|
|
(h)
|
any
debt, obligation or liability incurred, assumed or guaranteed by
the
Corporation, except those for immaterial amounts and for other liabilities
incurred in the ordinary course of
business;
|
|
(i)
|
any
sale, assignment or transfer of any patent, trademarks, copyrights,
trade
secret or other intangible assets;
or
|
|
(j)
|
any
change in any material agreement to which the Corporation is a party
or by
which it is bound.
|
|
3.1.12
|
Title
to Properties and Assets; Liens, Etc.
|
Except
as
disclosed in the Schedule of Exceptions, the Corporation has good and marketable
title to its properties and assets, including the properties and assets
reflected in the Financial Statements, and good title to its leasehold estates,
in each case subject to no mortgage, pledge, lien, lease, encumbrance or charge
(a “Lien”),
other
than (a) those resulting from taxes which have not yet become delinquent, (b)
minor liens and encumbrances which do not materially detract from the value
of
the property subject thereto or materially impair the operations of the
Corporation, and (c) those that have otherwise arisen in the ordinary course
of
business. Except as disclosed in the Schedule of Exceptions, the Corporation
is
in compliance with all material terms of each agreement to which it is a party
or is otherwise bound.
|
3.1.13
|
Intellectual
Property
|
|
(a)
|
To
the best of the knowledge of the Corporation and the actual knowledge
of
the Sellers, the Corporation owns or possesses sufficient legal rights
to
all patents, trademarks, service marks, trade names, copyrights,
trade
secrets, licenses, information and other proprietary rights and processes
necessary for its business as now conducted, without any known
infringement of the rights of others. Except
as disclosed in the Schedule of Exceptions, there are no outstanding
options, licenses or agreements of any kind with any third parties
relating to the foregoing proprietary rights, nor is the Corporation
bound
by or a party to any options, licenses or agreements of any kind
with
respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information and other proprietary
rights and processes of any other person or entity other than such
licenses or agreements arising from the purchase of “off the shelf” or
standard products.
|
-11-
|
(b)
|
Except
with respect to the Zeiss letters, which have been disclosed to the
Buyer,
the Corporation has not received any communications alleging that,
by
conducting its business as presently proposed, the Corporation has
violated or would violate any of the patents, trademarks, service
marks,
trade names, copyrights or trade secrets or other proprietary rights
of
any other person or entity, nor is the Corporation aware of any basis
therefor.
|
|
(c)
|
None
of the key employees of the Corporation (as named in Section 3.1.19
hereto) is obligated under any contract (including licenses, covenants
or
commitments of any nature) or other agreement, or subject to any
judgment,
decree or order of any court or administrative agency, that would
interfere with their duties to the Corporation or that would conflict
with
the Corporation’s business as presently proposed to be conducted.
|
|
3.1.14
|
Compliance
with Other Instruments- Corporation.
|
Except
as
disclosed in the Schedule of Exceptions, the Corporation is not in violation
or
default of any term of its current Articles, or of any provision of any
mortgage, indenture, contract, agreement or instrument to which it is a party
or
by which it is bound, or of any judgment, decree, order, writ. The execution,
delivery, performance of, and compliance with this Agreement, and the sale
of
the Shares pursuant hereto, will not, with or without the passage of time or
giving of notice, result in any violation, or be in conflict with or constitute
a default under any such term, or result in the creation of any mortgage,
pledge, lien, encumbrance or charge upon any of the properties or assets of
the
license, authorization or approval applicable to the Corporation, its business
or operations or any of its assets or properties.
|
3.1.15
|
Compliance
with Other Instruments-Sellers.
|
Each
Seller that is a corporation is not in violation or default of any term of
its
current Articles. Each Seller is not in violation of any provision of any
mortgage, indenture, contract, agreement or instrument to which it/he is a
party
or by which it is bound, or of any judgment, decree, order, writ.
|
3.1.16
|
Litigation
|
Except
as
set forth in the Schedule of Exceptions, there is no action, suit, proceeding
or
investigation pending or, to the Corporation’s knowledge, currently threatened
against the Corporation that questions the validity of this Agreement, or the
right of the Corporation to enter into any of such agreements, or to consummate
the transactions contemplated hereby or thereby, or which would reasonably
be
expected to result, either individually or in the aggregate, in any material
adverse change in the assets, conditions, affairs or prospects of the
Corporation, financially or otherwise, or any change in the current equity
ownership of the Corporation, nor is the Corporation aware that there is any
basis for any of the foregoing.
-12-
|
3.1.17
|
Tax
Returns and Payments
|
Subject
to such facts and qualifications as are set forth in the Schedule of Exceptions,
the Corporation has filed all Tax returns required to be filed by it. All Taxes
shown to be due and payable on such returns, any assessments imposed, and to
the
Corporation’s knowledge all other Taxes due and payable by the Corporation on or
before the Closing, have been paid or will be paid on or prior to the time
they
are due. The Corporation has no knowledge of any liability of any Tax to be
imposed upon its properties or assets as of the date of this Agreement that
is
not adequately provided for.
|
3.1.18
|
Employees
|
The
Corporation has no collective bargaining agreements with any of its
employees.
|
3.1.19
|
Obligations
of Key Employees
|
Each
Key
Employee of the Corporation is currently devoting substantially all of his
or
her business time to the conduct of the business of the Corporation. The
Corporation is not aware that any Key Employee of the Corporation is planning
to
work less than full time at the Corporation in the future. No Key Employee
is
currently working or, to the Corporation’s knowledge, plans to work for a
competitive enterprise, whether or not such key employee is or will be
compensated by such enterprise. The Corporation’s Key Employees have executed
with the Corporation employment agreements that include a non-competition and
confidentiality provisions, copies of which have been provided to the Buyer.
For
the purpose of this Section, the term “Key Employee” shall refer to ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ is also involved in a
property management company that manages amongst other, family controlled real
estate. ▇▇▇▇▇▇ ▇▇▇▇▇ is not involved in the day to day management of the
property management company.
|
3.1.20
|
Registration
Rights and Voting Rights
|
The
Corporation has not agreed to grant any registration rights, including piggyback
rights, to any person or entity.
|
3.1.21
|
Compliance
with Laws; Permits
|
Except
as
disclosed in the Schedule of Exceptions, the Corporation and the Sellers are
not
aware of any violation by the Corporation of any applicable statute, rule,
regulation, order or restriction of any domestic or foreign government or any
instrumentality or agency thereof in respect of the conduct of its business
or
the ownership of its properties which violation would materially and adversely
affect the business, assets, liabilities, financial condition, operations or
prospects of the Corporation. No governmental orders, permissions, consents,
approvals or authorizations are required to be obtained and no registrations
or
declarations are required to be filed in connection with the execution and
delivery of this Agreement, except such as has been duly and validly obtained
or
filed, or with respect to any filings that must be made, or tax to be paid,
after the Closing, as will be filed in a timely manner. The Corporation has
all
franchises, permits, licenses and any similar authority necessary for the
conduct of its business as now being conducted by it, the lack of which could
materially and adversely affect the business, properties or financial condition
of the Corporation and believes it can obtain, without undue burden or expense,
any similar authority for the conduct of its business as planned to be
conducted.
-13-
|
3.1.22
|
Full
Disclosure
|
To
the
Seller’s knowledge, neither this Agreement, the exhibits and schedules hereto
nor any other document delivered by the Corporation and the Sellers to the
Buyer
or their attorneys or agents in connection herewith or therewith or with the
transactions contemplated hereby or thereby, contain any untrue statement of
a
material fact nor, to the best of the Seller’s knowledge, omit to state a
material fact necessary in order to make the statements contained herein or
therein not misleading.
|
3.1.23
|
Insurance
|
The
Corporation’s policies of insurance, as listed on the Schedule of Exceptions,
have been fully disclosed to the Buyer.
|
3.1.24
|
Securities
Legislation
|
The
Corporation is a private company within the meaning of the Securities Act
(Ontario) and the sale of the Shares by each Seller to the Buyer will be made
in
compliance with the Securities Act (Ontario).
|
3.1.25
|
Section
6.2 of the Share Purchase
Agreement
|
Except
as
disclosed in the Schedule of Exceptions, between
the date of the Share Purchase Agreement and the date hereof, the Corporation
has complied with all of the conditions and restrictions set out in Section
6.2
of the Share Purchase Agreement.
|
3.1.26
|
Acknowledgement
of Exchange Agreement
|
For
purposes of their decision to enter into this Share Purchase Agreement, the
Sellers acknowledge and agree that they are aware of and understand the
provisions in Section 6.3 of the Exchange Agreement relative to the Opko Common
Shares issuable in exchange for the Exchangeable Shares. Capitalized terms
in
this Section 3.1.26
unless
otherwise defined herein have the meanings ascribed to them in the Exchange
Agreement.
|
3.2
|
Representations
and Warranties of the
Buyer
|
The
Buyer
represents and warrants to the Seller as set out in the following Subsections
of
this Section and acknowledges that the Seller is relying upon such
representations and warranties in entering into this Agreement.
|
3.2.1
|
Organization
and Qualification
|
Each
of
the Buyer and Holdco are duly organized and validly existing under the laws
of
Ontario, Canada. Each of the Buyer and Holdco have all requisite corporate
power
and authority to own and operate their properties and assets, and to carry
out
the provisions of this Agreement and to carry on its business as presently
conducted. The Buyer has all the requisite corporate power and authority to
issue the Exchangeable Shares
-14-
|
3.2.2
|
Subsidiaries
|
The
Buyer
does not own or control any equity, security or other interest of any other
corporation, limited partnership or other business entity.
|
3.2.3
|
Capitalization
of the Buyer
|
The
authorized capital of the Buyer consists solely of an unlimited number of common
shares and an unlimited number of Exchangeable Shares, of which 1 common share
is issued and outstanding. All of the outstanding common shares of the Buyer
are
owned by Holdco, have been validly issued and are fully paid and non-assessable.
The Exchangeable Shares, when issued, will be validly issued as fully paid
and
non-assessable. The issuance of the Exchangeable Shares by the Buyer to each
Seller will be made in compliance with all applicable securities
legislation.
|
3.2.4
|
Capitalization
of the Holdco
|
The
authorized capital of the Holdco consists solely of an unlimited number of
common shares, of which 1 common share is issued and outstanding. All of the
outstanding common shares of Holdco are owned by Opko, have been validly issued
and are fully paid and non-assessable.
|
3.3
|
Non-waiver/Schedule
of Exceptions
|
|
3.3.1
|
Non-Waiver
|
No
investigations made by or on behalf of the Buyer at any time shall waive,
diminish the scope of or otherwise affect any representation or warranty made
by
any Seller or the Corporation in this Agreement or in any Closing Document.
No
waiver by the Buyer of any condition, in whole or in part, shall operate as
a
waiver of any other condition.
|
3.3.2
|
Schedule
of Exceptions
|
Items
set
forth by the Sellers in the Schedule of Exceptions will be considered
disclosures applicable for
the
purposes of all representations
and warranties of the Sellers given
in
Section 3.1
to which
its relevance is readily apparent.
|
3.4
|
Tax
Covenants
|
At
the
option of each Seller, such Seller and the Buyer agree to file a joint election
pursuant to subsection 85(1) of the Income Tax Act (Canada)(the “Tax
Act”)
in the
prescribed form and within the prescribed time whereby the elected amount
provided for therein shall be such amount as is determined by such Seller in
accordance with the limits established under the Tax Act. The Buyer and the
Seller agree to jointly make and file elections under the corresponding
provisions of any applicable provincial income tax legislation. Each Seller
shall be responsible to prepare and file all such elections. The sole obligation
of the Buyer shall be to provide any information reasonably requested by the
Sellers to complete the election forms and to execute and return to the Sellers
any properly completed election form within 10 Business Days of receipt of
such
form from the Sellers. The Buyer shall have no liability for any Taxes of the
Seller arising from the sale of the Shares to the Buyer arising as a result
of
the refusal by the Canada Revenue Agency (or any applicable provincial tax
authority) to accept any such election.
-15-
|
3.5
|
Survival
of Representations and Warranties
|
The
representations and warranties contained in this Agreement and in any agreement,
certificate, affidavit, statutory declaration or other document delivered or
given pursuant to this Agreement shall survive the Closing and, notwithstanding
the Closing or any investigation made by or on behalf of the parties hereto
with
respect thereto, shall continue in full force and effect provided, however,
that
no claim in respect thereof shall be valid unless it is made within the
following time periods:
|
(a)
|
in
the case of a claim in respect of the representations and warranties
set
forth in 3.1.1
(Organization and qualification of the Corporation), 3.1.2
(Organization and qualification of the Seller), 3.1.4
(Capitalization and title), 3.1.5
(Authorization of the Corporation), 3.1.6
(Authorization of the Seller), 3.2.1
(Organization and Qualification of the Buyer and Holdco), 3.2.3
(Capitalization of the Buyer) and 3.2.4
(Capitalization of Holdco) there shall be no time limit within which
such
a claim may be made;
|
|
(b)
|
in
the case of a claim in respect of a representation or warranty relating
to
a tax matter, within a period commencing on the date hereof and ending
on
the date on which the last applicable limitation period under any
applicable tax legislation expires with respect to any taxation year
which
is relevant in determining any liability under this Agreement with
respect
to tax matters; and
|
|
(c)
|
in
the case of a claim in respect of any other representation or warranty
within a period of two years from the date
hereof.
|
|
3.6
|
Knowledge
of the Sellers
|
Where
any
representation or warranty contained in this Agreement is expressly qualified
by
reference to the "knowledge" of the Sellers, it shall be deemed to refer to
the
knowledge of each of the Seller and the Corporation, after having made
reasonable inquiry.
-16-
ARTICLE
4
NON-SOLICITATION
AND NON-COMPETE
|
4.1
|
Non
- Competition
|
Each
of
▇▇▇▇▇ and ▇▇▇▇▇▇ covenants and agrees that during the Restricted Period, he
will
not, either individually or in partnership or jointly or in conjunction with
any
Person as employee, principal, agent, shareholder (other than as a holder of
not
more than five percent (5%) of the total stock of a publicly-traded company)
or
in any other manner whatsoever carry on, be engaged with, or lend his name
to
any Competitive Business in Canada or, the United States.
|
4.2
|
Non
-Solicitation of Employees or
Consultant.
|
Each
of
▇▇▇▇▇ and ▇▇▇▇▇▇ further covenants and agrees that during the Restricted Period,
he shall not directly or indirectly, either individually or in partnership
or
jointly or in conjunction with any Person, enter into any agreement with or
solicit the employment or services of employees of or consultants to the
Corporation, including employees and consultants who were employed with or
retained by the Corporation on the Closing.
|
4.3
|
Non-Solicitation
of Clients.
|
Each
of
▇▇▇▇▇ and ▇▇▇▇▇▇ further covenants and agrees that during the Restricted Period,
he shall not directly or indirectly, either individually or in partnership
or
jointly or in conjunction with any Person, contact or solicit the business
(of
the type included within the meaning of Competitive Business) of clients of
the
Corporation; any Person who was a client of the Corporation in the two-year
period immediately prior to the Closing Date.
|
4.4
|
Restrictions
Reasonable
|
Each
of
▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ agrees that all of the restrictions in this Agreement
are
reasonable and enforceable, and that the Buyer would not have entered into
this
Agreement unless he provided the covenants in this Agreement. Each of ▇▇▇▇▇
and
▇▇▇▇▇▇ further acknowledges and agrees that:
|
(a)
|
the
goodwill associated with the business, clients and assets of the
Corporation as of the Closing is an integral component of the value
of the
Corporation to the Buyer;
|
|
(b)
|
the
covenants set forth herein are necessary to preserve the value of
the
Business for the Buyer following the Closing of the transaction;
and
|
|
(c)
|
the
limitations of time, geography and scope of the Business agreed to
in this
Agreement are reasonable because, among other
things;
|
|
(a)
|
each
of ▇▇▇▇▇ and ▇▇▇▇▇▇ received significant consideration for his shares
in
the Corporation under the Share Purchase Agreement, and each Seller
acknowledges that it would be unfair for him, after having received
this
consideration, to directly or indirectly complete against the Corporation
during the Restricted Period;
|
-17-
|
(b)
|
the
Corporation is engaged in a highly competitive industry;
and
|
|
(c)
|
each
of ▇▇▇▇▇ and ▇▇▇▇▇▇ has unique and important relationships with the
clients of the Corporation and significant business reputation on
the
industry.
|
|
4.5
|
Injunctive
Relief
|
Each
of
▇▇▇▇▇ and ▇▇▇▇▇▇ recognizes that his covenants in this Agreement are critical
to
the ongoing success of the Business that the buyer is acquiring from the
Corporation. As such, each of ▇▇▇▇▇ and ▇▇▇▇▇▇ agrees that in the event of
an
actual or threatened breach by him of any of the terms of this Agreement, the
Buyer will suffer irreparable harm, and shall be entitled to an interim and/or
permanent injunction against ▇▇▇▇▇ and/or ▇▇▇▇▇▇, as the case may be,
restraining such actual or threatened breach. The Buyer shall also be entitled
to pursue damages and any and all other remedies available to it at law or
in
equity.
ARTICLE
5
INDEMNIFICATION
|
5.1
|
Indemnification
by the Sellers
|
Other
than with respect to ▇▇▇▇▇ ▇▇▇▇▇ whose indemnification shall be deemed to be
several and separate not joint and several, Sections 3.1.2
(Organization and Qualification of the Sellers), 3.1.4(b)
(Title),
3.1.6
(Authorization of the Sellers), and 3.1.15
(Compliance with other instruments-Sellers) which indemnification shall be
deemed to be several and separate and not joint and several, and, subject to
the
limitations set out in Sections 3.5
and
7.9,
each
Seller shall, jointly and severally, indemnify, defend and save harmless the
Buyer and each of its Representatives from and against any and all Losses
suffered or incurred by them, as a result of:
|
(a)
|
any
misrepresentation or breach of warranty made or given by any of them
in
this Agreement or in any document delivered pursuant to this Agreement
or
any Closing Document ;
|
|
(b)
|
save
and except with respect to covenants of ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ pursuant
to
ARTICLE
4
and pursuant to the Employment Agreements and the Confidentiality
and
Proprietary Information Agreements and the Non-Competition and
Non-Solicitation Agreements attached thereto (which covenants and
Employment Agreements, Confidentiality and Proprietary Information
Agreements and Non-Competition and Non-Solicitation Agreements shall
be
severally indemnified by ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ alone, and by no
other
Seller), any failure by any of them to observe or perform any covenant
or
obligation contained in this Agreement, any Closing Document or in
any
document delivered pursuant to any of them, to be observed or performed
by
it; or
|
-18-
|
(c)
|
any
Taxes required to be paid by the Corporation relating to any period
ending
on or before the date hereof.
|
|
5.2
|
Indemnification
by the Buyer
|
Subject
to the limitations set out in Section 3.5,
the
Buyer shall indemnify, defend and save harmless each of the Sellers and each
of
the Sellers’ Representatives from and against any and all Losses suffered or
incurred by them, as a result of:
|
(a)
|
any
misrepresentation or breach of any warranty made or given by the
Buyer in
this Agreement;
|
|
(b)
|
any
misrepresentation or breach of warranty made or given by the Buyer
in any
Closing Document or in any document delivered pursuant to this Agreement
or any Closing Document; or
|
|
(c)
|
any
failure by the Buyer to observe or perform any covenant or obligation
contained in this Agreement, any Closing Document or in any document
delivered pursuant to any or them, to be observed or performed by
it.
|
|
5.3
|
Defence
of Claims
|
|
(a)
|
A
party hereto (the “Indemnified
Party”)
who seeks indemnification hereunder from another party (the “Indemnifying
Party”)
shall notify the Indemnifying Party in writing as soon as is possible
after being informed that facts exist which may result in a claim
and in
respect of which a right of indemnification given pursuant to this
Article
5 may apply. The failure of any Indemnified Party to give timely
notice
hereunder shall not affect rights to indemnification hereunder, except
and
only to the extent that, the Indemnifying Party demonstrates actual
material damage caused by such
failure.
|
|
(b)
|
In
the case of a claim originating from a Person other than the Indemnified
Party (a “Third
Party Claim”),
the Indemnifying Party shall have the right to elect, by written
notice
delivered to the Indemnified Party within thirty (30) days of receipt
by
the Indemnifying Party of the notice from the Indemnified Party in
respect
of the Third Party Claim, at the sole expense, cost and risk of the
Indemnifying Party to participate in or assume control of the defence
of
the Third Party Claim and
to pursue such defence in good faith by appropriate actions or proceedings
promptly taken or instituted and diligently pursued, including, without
limitation, to employ and engage attorneys of its own choice reasonably
acceptable to the Indemnified Party to defend, compromise or settle
such
claim, provided that
the Indemnifying Party shall pay all reasonable out-of-pocket expenses
incurred by the Indemnified Party as a result of such participation
or
assumption, provided,
further,
that any
compromise or settlement shall be made only with the written consent
of
the Indemnified Party, such consent not to be unreasonably
withheld.
|
-19-
|
(c)
|
If
the Indemnifying Party elects to assume control of the Third Party
Claim,
the Indemnifying Party shall keep the Indemnified Party reasonably
informed of the progress of any defence, compromise or settlement
and the
Indemnified Party shall cooperate with the Indemnifying Party and
its
counsel and shall have the right to participate in the defence, compromise
or settlement of such Third Party Claim at its own expense and, in
so
doing, the Indemnified Party shall have the right to retain counsel
to act
on its behalf, provided
that
the fees and disbursements of such counsel shall be paid by the
Indemnified Party.
|
|
(d)
|
If
the Indemnifying Party does not elect to assume control of the Third
Party
Claim, or if having so elected
to
assume control, it thereafter fails to proceed with the defence or
settlement of such Third Party Claim in good faith and with reasonable
diligence, then the Indemnified Party shall be entitled to assume
control
of the Third Party Claim at the Indemnifying Party’s sole expense, cost
and risk. An Indemnified Party agreeing to assume control of a claim
shall
use commercially reasonable efforts to deal with the claim reasonably
diligently and in a manner consistent with the manner in which the
Indemnified Party would have acted if there had been no indemnity.
In such
case, the Indemnifying Party shall be kept reasonably informed of
the
progress of any defence, compromise or settlement (and shall be entitled
to participate in at its expense, but not assume control of, such
action).
|
|
(e)
|
The
Indemnifying Party or the Indemnified Party who does not have control
of
the Third Party Claim shall cooperate with the other of them in the
defence thereof (at the cost and expense of the Indemnifying Party),
such
cooperation to include the provision of records and information within
its
control that are relevant to the Third Party Claim and making available
its employees and servants (and those of its affiliates) as are
appropriate and reasonably necessary and relevant to the Third Party
Claim.
|
ARTICLE
6
CLOSING
DELIVERIES
|
6.1
|
Closing
Deliveries of the Seller
|
At
Closing, in addition to any other documents to be provided or delivered by
the
Sellers to the Buyer at such time pursuant to this Agreement, each Seller will
execute and/or deliver (or cause to be executed and/or delivered) to the Buyer
the following:
|
(a)
|
the
Exchange and Support Agreement;
|
-20-
|
(b)
|
a
release from each of the Sellers and the directors and officers of
the
Corporation of all claims such Sellers, officers and directors had
now
have or shall ever have against the Corporation in a form satisfactory
to
the Buyer other than with respect to the subject matter
hereof;
|
|
(c)
|
the
Escrow Agreement;
|
|
(d)
|
a
resignation of all officers and directors of the
Corporation;
|
|
(e)
|
Employment
Agreements between the Corporation and ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇;
|
|
(f)
|
Option
Agreements between Opko Health, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇;
|
|
(g)
|
share
certificates representing the Purchased Shares duly endorsed in blank
for
transfer;
|
|
(h)
|
a
resolution of the Board of Directors of the Corporation authorising
the
transfer of the Purchased Shares;
|
|
(i)
|
an
opinion of the Counsel to the Seller and the Corporation in form
and
substance satisfactory to the Buyer acting reasonably;
|
|
(j)
|
evidence
in form and substance satisfactory to the Buyer, acting reasonably,
that
the shares of the Corporation held by ▇▇▇▇-▇▇▇▇ Chaduc have been
cancelled
and the shares of the Corporation held by Nidek Co., Ltd. have been
purchased by <>;
and
|
|
(k)
|
such
other documents as may be reasonably required by the
Buyer.
|
|
6.2
|
Closing
Deliveries of the Buyer
|
At
Closing, in addition to any other documents to be provided or delivered by
the
Buyer to the Seller at such time pursuant to this Agreement, the Buyer will
execute and/or deliver (or cause to be executed and/or delivered) to the Buyer
the following:
|
(a)
|
the
Exchange and Support Agreement;
|
|
(b)
|
Employment
Agreements between the Corporation and ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇;
|
|
(c)
|
the
Escrow Agreement;
|
|
(d)
|
Exchangeable
Share certificates in the amount of the Purchase Price payable to
each
Seller in the name of such Seller;
|
-21-
|
(e)
|
a
resolution of the Board of Directors of Newco authorising the issuance
of
the Exchangeable Shares in payment of the Purchase
Price;
|
|
(f)
|
Option
Agreements between Opko Health, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇;
|
|
(g)
|
an
opinion of the U.S. Counsel to Opko in form and substance satisfactory
to
the Sellers acting reasonably; and
|
|
(h)
|
such
other documents as may be reasonably required by the
Buyer.
|
|
6.3
|
Payment
of Shareholder and Related Party
Loans
|
It
shall
be a condition precedent of this Agreement that all loans made by the
Corporation, by any shareholder of the Corporation or by any related party
as
set out in the Schedule of Exceptions shall be repaid in full, including
principal and interest, prior to completion of the transaction contemplated
hereby.
|
6.4
|
Closing
Payments
|
Immediately
prior to Closing, the shareholder loans disclosed in Section 3.1.10
shall
have been repaid.
ARTICLE
7
GENERAL
|
7.1
|
Expenses
|
The
Parties agree that OTI shall pay all reasonable costs for representation by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP of OTI and the Sellers and for independent legal advice
for
▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇-▇▇▇▇ Chaduc, if he becomes a party to this Agreement.
|
7.2
|
Enurement
|
This
Agreement enures to the benefit of and is binding upon the Parties and their
respective successors (including any successor by reason of merger or
amalgamation of any Party) and permitted assigns.
|
7.3
|
Notices
to Parties
|
Any
notice, certificate, consent, determination or other communication required
or
permitted to be given or made under this Agreement shall be in writing and
shall
be effectively given and made if (i) delivered personally, (ii) sent by prepaid
courier service or mail, or (iii) sent prepaid by fax or other similar means
of
electronic communication, in each case to the applicable address set out
below:
-22-
|
(a)
|
if
to the Corporation:
|
Ophthalmic
Technologies Inc.
37
Kodiak
Crescent
▇▇▇▇
▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇
Fax:
with
a
copy to:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇
Fax:
▇▇▇.▇▇▇.▇▇▇▇
|
(b)
|
if
to Newco:
|
c/o
Opko
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇.
▇▇▇▇▇
Fax:
with
a
copy to:
Fraser
▇▇▇▇▇▇ Casgrain
First
Canadian Place
▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇.▇.
▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
|
(c)
|
and
if to the Sellers:
|
|
(d)
|
1161983
Ontario Limited
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention:
Fax:
-23-
▇▇▇▇▇
Corporation Limited
Attention:
Fax:
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
Fax:
▇▇▇▇▇
▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
Fax:
▇▇▇▇▇▇
▇▇▇▇▇
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Triple
Net Propertied Limited
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Fax:
|
(e)
|
Any
such communication so given or made shall be deemed to have been
given or
made and to have been received on the day of delivery if delivered,
or on
the day of faxing or sending by other means of recorded electronic
communication, provided that such day in either event is a Business
Day
and the communication is so delivered, faxed or sent before 4:30
p.m. on
such day. Otherwise, such communication shall be deemed to have been
given
and made and to have been received on the next following Business
Day. Any
such communication sent by mail shall be deemed to have been given
and
made and to have been received on the fifth Business Day following
the
mailing thereof; provided however that no such communication shall
be
mailed during any actual or apprehended disruption of postal services.
Any
such communication given or made in any other manner shall be deemed
to
have been given or made and to have been received only upon actual
receipt.
|
-24-
|
(f)
|
Any
Party may from time to time change its address under this Section
by
notice to the other Party given in the manner provided by this
Section.
|
|
7.4
|
Amendment
|
No
consent or approval by any Party will be binding unless delivered in writing
to
the other Parties hereto.
|
7.5
|
Assignment
|
No
party
may assign any rights or obligations under this Agreement.
|
7.6
|
Further
Assurances
|
The
Parties will, with reasonable diligence, do all such things and provide all
such
reasonable assurances as may be required to consummate the transactions
contemplated by this Agreement, and each party will provide such further
documents or instruments required by any other Party as may be reasonably
necessary or desirable to effect the purpose of this Agreement and carry out
its
provisions.
|
7.7
|
Public
Announcements
|
Except
to
the extent required by Applicable Law, each Party agrees that no disclosure
or
public announcement regarding this Agreement or the transactions contemplated
hereby shall be made by either Party without the prior written consent of the
other Party.
|
7.8
|
Remedies
Cumulative
|
The
rights and remedies of the Parties under this Agreement are cumulative and
in
addition to and not in substitution for any rights or remedies provided by
law.
Any single or partial exercise by any Party hereto of any right or remedy for
default or breach of any term, covenant or condition of this Agreement does
not
waive, alter, affect or prejudice any other right or remedy to which such Party
may be lawfully entitled for the same default or breach.
|
7.9
|
Limitation
of Liability
|
Other
than with respect to ▇▇▇▇▇ ▇▇▇▇▇ whose liability is set out below, Sections
3.1.2
(Organization and Qualification of the Sellers), 3.1.4(b)
(Title),
3.1.6
(Authorization of the Sellers), and 3.1.15
(Compliance with other instruments-Sellers), fraud and wilful misconduct, for
which there shall be no limitation on liability, the aggregate liability of
the
Sellers shall not exceed the value of the Escrow Shares and recourse with
respect thereto shall be limited to the Escrow Shares.
-25-
Other
than with respect Sections 3.1.2
(Organization and Qualification of the Sellers), 3.1.4(b)
(Title),
3.1.6
(Authorization of the Sellers), and 3.1.15
(Compliance with other instruments-Sellers), fraud and wilful misconduct, for
which there shall be no limitation on liability, the aggregate liability of
the
▇▇▇▇▇ ▇▇▇▇▇ shall not exceed the value of the ▇▇▇▇▇ Escrow Shares and recourse
with respect thereto shall be limited to the ▇▇▇▇▇ Escrow Shares.
|
7.10
|
Execution
and Delivery
|
This
Agreement may be executed by the Parties in counterparts and may be executed
and
delivered by fax, and all such counterparts and faxes together constitute one
agreement.
TO
WITNESS
their
agreement, the parties have duly executed this Agreement as of the date first
set forth above.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-26-
|
Ophthalmic
Technologies Inc.
|
|||
|
By:
|
c/s
|
||
|
OTI
Holdings Limited
|
|||
|
By:
|
c/s
|
||
|
1161983
Ontario Limited
|
|||
|
By:
|
c/s
|
||
|
▇▇▇▇▇
Corporation Limited
|
c/s
|
||
|
By:
|
|||
|
Triple
Net Properties Limited
|
c/s
|
||
|
By:
|
|||
-27-
|
Witness
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
Witness
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
Witness
|
▇▇▇▇▇
▇▇▇▇▇
|
|
|
Witness
|
▇▇▇▇▇▇
▇▇▇▇▇, as
trustee for and on behalf of ▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
Witness
|
▇▇▇▇▇▇
▇▇▇▇▇
|
-28-