ASSET SALE AGREEMENT
Dated: 26 February 2002
BETWEEN
BIOA PTY LIMITED
AND
BIOTECHNOLOGY
AUSTRALIA PTY LIMITED
AND
ACCESS PHARMACEUTICALS AUSTRALIA PTY LIMITED
AND
ACCESS PHARMACEUTICALS, INC.
AND
HUMAN THERAPEUTICS LIMITED
DIBBS XXXXXX GOSLING
Lawyers
Xxxxx 0 000 Xxxx Xxxxxx
XXXXXX XXX 0000
DX 000 Xxxxxx
Tel:x00 0 0000 0000
Fax:x00 0 0000 0000
Ref: GRC/JPR/3061160
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
2. SALE OF ASSETS 6
3. PURCHASE CONSIDERATION 6
4. CONDUCT PENDING COMPLETION 7
5. TITLE AND POSSESSION 8
6. COMPLETION 8
7. EMPLOYEES 9
8. POST COMPLETION 10
9. VENDORS' WARRANTIES 12
10. MUTUAL REPRESENTATIONS AND XXXXXXXXXX 00
00. LIMITATION OF LIABILITY 14
12. NO MERGER 16
13. NOTICES 16
14. COSTS 18
15. ENTIRE AGREEMENT 18
16. NO WAIVER 18
17. GOVERNING LAW AND JURISDICTION 18
18. COUNTERPARTS 18
19. GST 19
20. WITHHOLDING TAX 19
21. GUARANTEE 19
22. ASSIGNMENT 22
SCHEDULE 1 PLANT AND EQUIPMENT
SCHEDULE 2 INTELLECTUAL PROPERTY
SCHEDULE 3 EMPLOYEES
SCHEDULE 4 WARRANTIES
SCHEDULE 5 SCHEDULE OF EXCEPTIONS
SCHEDULE 6 ASSIGNMENT DEED
SCHEDULE 7 FORM OF WARRANT
ASSET SALE AGREEMENT
THIS AGREEMENT dated 26 February 2002
BETWEEN BIOA PTY LIMITED (formerly known as BIOTECH
AUSTRALIA PTY LIMITED) ABN 52 003 804 984 ("BA") and
BIOTECHNOLOGY AUSTRALIA PTY LIMITED (to be known as
BlOB PTY LIMITED) ABN 32 001 521 866
("Biotech") each of 00 Xxxxxx Xxxxxx, Xxxxxxxxx, XXX 0000
AND ACCESS PHARMACEUTICALS AUSTRALIA PTY
LIMITED ACN 099 593 898 of 00 Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxx,
XXX 0000 (the "Purchaser")
AND ACCESS PHARMACEUTICALS, INC. of 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, XXXXX, 00000-0000, Xxxxxx Xxxxxx of
America ("AccessUSA")
AND HUMAN THERAPEUTICS LIMITED ABN 36 008 540 556 of
00 Xxxxxx Xxxxxx, Xxxxxxxxx, XXX 0000 ("HTLA")
RECITALS
A. The Vendors are the legal and beneficial owners of the Assets.
B. The Vendors have agreed to sell and the Purchaser has agreed to
purchase the Assets on the terms and conditions contained in this
agreement.
C. AccessUSA has agreed to guarantee the performance by the
Purchaser of the Guaranteed Obligations under this agreement.
D. HTLA has agreed to guarantee the performance by the Vendors of
the Vendors' Obligations under this agreement.
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this agreement, including the recitals, unless contrary to or
inconsistent with the context:
"Assignment Deed" means the deed of assignment and consent between
Biotech, BA, the Purchaser, AccessUSA and GroPep a copy of which
is attached as schedule 6.
"Accrued Entitlements" means accrued but unpaid annual leave, sick
leave and long service leave entitlements of the Employees as at
Completion.
"Assets" means:
(a) the Plant and Equipment; and
(b) the Intellectual Property,
but no other assets or property of the Vendors.
"AMEX" means the American Stock Exchange.
"Authorised Officer" means a director or secretary of a Party or any
person appointed by a Party whose title or office includes the word
"manager", "executive" or "vice president" or a person performing the
functions of any of them and who has the power and authority to act on
behalf of such Party.
"Average Selling Price" means the volume weighted average selling
price for the shares of AccessUSA sold on market on AMEX during
the 20 Business Days immediately prior to Completion.
"Business" means the business currently undertaken by BA and Biotech
of research and development of drug delivery technology including the
VB12 Platform Technology, folate targeting technology and nano-
particle networks with a view to commercialisation.
"Business Day" means a day on which AccessUSA's shares were able
to be traded on AMEX, excluding Saturdays and Sundays.
[*] means [*] of [*].
"[*] Agreement" means the Material Transfer Agreement between
[*] and BA dated 29 March 2001, which terminated as of 15
February 2002.
"[*] Payments" means any payments from [*] to the
Purchaser or AccessUSA for a licence in relation to the subject matter
of the [*] Agreement which total [*].
"Claim" means any, claim, action, proceeding, notice, litigation,
investigation, judgment or demand made whether based in contract,
tort, statute or otherwise.
"Completion" means completion of the sale and purchase of the Assets
contemplated in this agreement that will occur on the Completion Date.
"Completion Date" means 27 February 2002 or such other date the
Parties may agree in writing.
"Completion Steps" means those actions or events specified in clause
6.4.
"Confidentiality Agreement" means the confidentiality agreement
between the Vendors and AccessUSA dated 18 July 2001.
"Employee" means each of the people whose names are set out in
schedule 3.
"Employee Entitlements" means the Accrued Entitlements together with
all salary, wages, annual leave, sick leave, long service leave,
employer superannuation contributions and any other benefits or
entitlements due to or accrued by Employees after Completion.
"Employee Payment" means the payment for salary, wages and
employer superannuation contributions due to or for the Employees up
to and including the date of Completion.
* Confidential Portions have been omitted and are on file separately
with the Commission.
"Encumbrance" means:
(a) a mortgage, pledge, lien, charge, claim, covenant, assignment by
way of security, hypothecation, secured interest, title retention
arrangement, preferential right, trust arrangement, (including without
limitation, any set-off or "flawed-asset" arrangement having the same
or equivalent commercial effect as a grant of security); or
(b) other interest including any right of any person to purchase,
occupy or use any of the Assets whether under an option, agreement to
purchase, licence, lease, hire-purchase, pre-emptive right or right of
first refusal or otherwise.
"Escrow Period" means the period from completion until the date 1
year after Completion during which the Vendors may not sell, transfer,
assign or part with the benefit of the Shares.
"GroPep" means GroPep Limited ACN 008 176 289.
"GST Act" means the "A New Tax System (Goods and Services Tax)
Xxx 0000 (Cth)".
"Guaranteed Obligations" means all express obligations to be observed
or performed by or on behalf of the Purchaser under this agreement.
"Intellectual Property" means:
(a) the VB12 Patents; and
(b) all proprietary rights, confidential information and know how in
respect of the rights referred to in paragraph (a), including all
copyrights, designs, production records, technical information,
laboratory notebooks, manufacturing know-how, trade secrets, mask
works, methods, processes and any licences, other agreements and
applications with respect to the forgoing.
"Liabilities" means all liabilities (whether actual, contingent or
prospective), losses (whether consequential, incidental or economic),
lost profits, damages, outgoings, costs and expenses of whatever
description including reasonable attorneys' fees and costs relating
thereto or relating to the defence of a Claim.
"Licence Agreement" means the licence agreement between GroPep
and the Purchaser dated on or about the date of Completion in relation
to part of the Property.
"Plant and Equipment" means the plant and equipment listed in
schedule 1.
"Property" means the whole of the land contained in certificates of title
folio identifiers 1/217498 and 3/217498 and known as 00 Xxxxxx
Xxxxxx, Xxxxxxxxx, XXX 0000.
"Purchase Consideration" is defined in clause 3.
"Records" means those records, files and correspondence belonging to
or used by the Vendors which relate directly or indirectly to the Assets.
"Related Body Corporate" has the meaning given to that term by the
Corporations Xxx 0000.
"Schedule of Exceptions" means the schedule of exceptions to the
Warranties set out in Schedule 5.
"SEC" means the Securities and Exchange Commission of the United
States of America.
"Shares" means the number of shares of common stock in AccessUSA
determined by dividing US$750,000 by the Average Selling Price.
"[*]" means [*].
"[*] Agreement" means a licence agreement
between the Purchaser, or Related Body Corporate of the Purchaser or
AccessUSA and [*] (or a Related Body Corporate
of [*]) relating to applications of the VB12
Platform Technology in relation to [*] (but not including
in relation to undertaking development research to determine if
[*] will enter into such an agreement).
"Vendors" means BA and Biotech.
"VB12 Patents" means the granted and pending patents, the patent
applications, enhancements and improvements in respect of the VB12
Platform Technology set out in schedule 2.
"VB12 Platform Technology" means the use of vitamin B12 and folate:
(a) to target anti-cancer agents to tumours;
(b) to facilitate the uptake of orally administered drug or biologically
active substances into the blood stream;
(c) to enhance the targeting of other therapeutic agents;
(d) in any manner relating to the subject matter of the VB12 Patents;
and
(e) in any manner directly or indirectly relating to paragraphs (a) - (d)
above.
"Vendors' Obligations" means all express obligations to be observed or
performed by or on behalf of the Vendors under this agreement.
"Warranties" means the representations and warranties of the Vendors
set out in schedule 4.
"Warrants" means 25,000 warrants to purchase shares of common stock
of AccessUSA each with an exercise price of US$5.00 and each
exercisable at any time between the date which is 1 year after
Completion and the date which is 3 years after Completion,
substantially in the form of schedule 7.
1.2 Interpretation
In this agreement, including the recitals, unless contrary to or
inconsistent with the context:
(a) words importing:
(i) the singular include the plural and vice versa; and
(ii) a gender includes every other gender;
* Confidential Portions have been omitted and are on file separetly
with the Commission.
(b) a reference to a party or person includes a reference to that party
or person, its successors, substitutes (including, but not limited to, a
party or person taking by novation), executors, administrators and
assigns;
(c) a reference to any thing or matter is a reference to the whole and
any part of it;
(d) the word "person" includes a corporation and vice versa; an
expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other body
corporate and any governmental agency;
(e) a reference to a group of persons or parties is a reference to any
two or more of them jointly and to each of them individually;
(f) a covenant, representation or warranty in favour of two or more
persons is for the benefit of them jointly and severally;
(g) a covenant, representation or warranty on the part of two or more
persons binds them jointly and severally;
(h) a reference to this agreement or other document includes any
variation, novation or replacement of or supplement to any of them
from time to time;
(i) where any clause contains sub-clauses, paragraphs or sub-
paragraphs, each sub-clause, paragraph and sub-paragraph however
called will be read and construed separately and independently of any
other;
(j) a reference to a document includes without any limitation any deed
or agreement in writing, certificate, notice or other instruction of any
kind;
(k) a reference to A$ means the lawful currency of Australia;
(1) a reference to US$ means the lawful currency of the United States
of America;
(m) a reference to STGL means the lawful currency of the United
Kingdom;
(n) "writing" and related expressions includes all means of
reproducing words in a tangible and permanently visible form;
(o) headings are inserted only for guidance and do not affect the
interpretation of this agreement;
(p) a reference to any statute, regulation, proclamation, ordinance or
by-law includes all statutes, regulations, proclamations, ordinances or
by-laws amending, consolidating or replacing them and a reference to a
statute includes all regulations, proclamations, ordinances and by-laws
made or issued under that statute;
(q) a reference to a body other than a party to this agreement:
(i) which ceases to exist; or
(ii) the powers or functions of which are transferred to another body,
is a reference to the body which replaces it or which substantially
succeeds to its powers or functions;
(r) no rule of construction applies to the disadvantage of a party
because that party was responsible for the preparation of this
agreement; and
(s) all references to accounting and financial terms have the meaning
commonly given to them in accordance with the accounting principles
generally accepted in Australia (in the case of Australian matters or
references) or the United States (in the case of United States matters or
references).
2. SALE OF ASSETS
The Vendors as beneficial owners agree to sell and assign the Assets to
the Purchaser free from any Encumbrance and the Purchaser agrees to
purchase and acquire the Assets free from any Encumbrance, as at and
with effect from Completion for the Purchase Consideration.
3. PURCHASE CONSIDERATION
3.1 Purchase Consideration
The Purchase Consideration is the total of all payments required to be
made by the Purchaser to the Vendor pursuant to this clause 3.
3.2 Payment Obligations
(a) At Completion, the Purchaser must pay US$500,000 by cash or
bank cheque or electronic funds transfer to the Vendors or as they
direct in writing.
(b) At Completion, or as soon as practicable after Completion, the
Purchaser must procure the issue of the Shares to the Vendors or as
they direct in writing.
(c) At Completion, or on a date after Completion specified in writing
by the Vendors, the Purchaser must procure the issue of the Warrants
to the Vendors or as they direct in writing.
(d) Within 3 Business Days of entering into the [*]
Agreement, the Purchaser must pay US$100,000 by cash
or bank cheque of electronic funds transfer to the Vendors or as they
direct in writing.
(e) Within 3 Business Days of the Purchaser or AccessUSA or any
Related Body Corporate of the Purchaser or AccessUSA receiving the
[*] Payments, the Purchaser must pay US$250,000 by cash or
bank cheque or electronic funds transfer to the Vendors or as they
direct in writing.
(f) On the date which is 1 year after Completion, the Purchaser must
pay US$175,000 by cash or bank cheque or electronic funds transfer to
the Vendors or as they direct in writing.
(g) On the date which is 2 years after Completion, the Purchaser must
pay US$175,000 by cash or bank cheque or electronic funds transfer to
the Vendors or as they direct in writing.
* Confidential Portions have been omitted and are on file separetly
with the Commission.
(h) On the date which is 3 years after Completion, the Purchaser must
pay US$175,000 by cash or bank cheque or electronic funds transfer to
the Vendors or as they direct in writing.
4. CONDUCT PENDING COMPLETION
4.1 Vendors' Conduct
Until Completion, the Vendors must not, without the prior consent of
the Purchaser:
(a) create any Encumbrance over any part of the Assets (other than a
charge over the Intellectual Property in favour of GroPep, which, if
granted, will be discharged on Completion);
(b) sell or license any Assets;
(c) increase the compensation payable to any Employee, or increase
any bonus, insurance, pension or other benefit plan, payment or
arrangement made to or with any Employee; or
(d) do any act or omit to do any act, or permit any act or omission to
act, which will cause a material breach of any contract, commitment or
obligation related to the Assets or the Business.
Until the earlier of Completion or March 31, 2002, the Vendors must
not, without the prior consent of the Purchaser, negotiate for, solicit, or
enter into any agreement with respect to the sale of the capital stock of
the Vendors or any substantial portion of the Assets or any merger or
other business combination of the Vendors, to or with any person other
than the Purchaser and AccessUSA; provided, however, that the
Vendors may negotiate with and enter into an agreement with GroPep
regarding the proposed transactions among those parties as previously
disclosed to the Purchaser and AccessUSA.
4.2 Vendors' Obligations
Until Completion, the Vendors must:
(a) comply with all laws, regulations and orders applicable with
respect to the Business and the Assets or as may be required for the
valid and effective transfer of the Assets;
(b) maintain with financially sound and reputable insurance
companies, funds or underwriters adequate insurance of the kinds,
covering such risks and in such amounts and with such deductibles and
exclusions as are consistent with prudent business practice with respect
to the Business and the Assets;
(c) promptly advise the Purchaser and AccessUSA in writing of any
material adverse change in the condition of any of the Assets or the
Business; and
(d) use their best endeavours to discharge or remove any current
Encumbrance on any of the Assets.
4.3 Vendors' Assistance
Subject to any confidentiality obligations owed by the Vendors or its
Related Bodies Corporate, the Vendors must, until Completion, comply
with all reasonable requests to:
(a) supply to the Purchaser or its representative any information in its
possession or control relevant to the Assets or the Employees; and
(b) assist the Purchaser to gain knowledge of or concerning the
Employees or the operation of the Assets.
4.4 Confidentiality
Any and all information disclosed by any of the parties to this
agreement to any of the other parties to this agreement as a result of
the negotiations leading to the execution of this agreement, or in
furtherance thereof, which information was not already publicly known
to such receiving party, shall remain confidential to each such party and
its respective employees and agents. Each of the parties to this
agreement agrees not to further divulge or disclose or use for its benefit
or purposes any such information at any time in the future unless such
information has otherwise entered the public domain.
5. TITLE AND POSSESSION
5.1 Title
Title to the Assets will pass to the Purchaser at Completion free of any
Encumbrance.
5.2 Possession
Possession of the Assets and risk related to the Assets will be given and
taken at Completion.
6. COMPLETION
6.1 Time for Completion
Completion is to take place beginning at 11.00 a.m. (Sydney time) on
the Completion Date at the Sydney offices of Dibbs Xxxxxx Gosling,
solicitors for the Vendors.
6.2 Completion Steps
Completion will occur when each of the Completion Steps have been
completed to the satisfaction of the parties. Each of the Completion
Steps is interdependent. No Completion Step will be effective unless
each other Completion Step is completed and Completion takes place.
6.3 Reasonable Endeavours
Each party will use all reasonable endeavours prior to Completion to
ensure that all relevant parties will be in a state of preparedness to
complete the Completion Steps on the Completion Date.
6.4 Obligations at Completion
At Completion the following events must occur in sequential order and
the parties agree to take all such steps and do all such things as are
necessary on their respective parts to ensure that:
(a) the Vendors deliver to the Purchaser:
(i) possession and control of the Assets including duly executed
transfers required to vest any of the Assets in the Purchaser;
(ii) certificates or other evidence of title to the Assets;
(iii) any required consents to the transfer of the Assets or VB12
Patents;
(iv) the Records, except that the Vendor may keep copies of any
Records required to be maintained pursuant to any statutory or
regulatory requirement; and
(v) any other document that will be reasonably necessary to give full
effect to the agreement and the assignment of the Assets to the
Purchaser;
(b) the Purchaser:
(i) pays to the Vendors (or as they direct in writing) the portion of the
Purchase Consideration in accordance with clause 3.2(a);
(ii) procures the issue of the Shares to the Vendors (or as the they
direct in writing) in accordance with clause 3.2(b);
(iii) procures the issue of the Warrants to the Vendors (or as they
direct in writing) in accordance with clause 3.2(c);
(iv) delivers to the Vendors a duly executed counterpart of the
Assignment Deed;
(v) delivers to the Vendors written notice addressed to Dibbs Xxxxxx
Gosling from AccessUSA or Xxxxxxx Xxxx LLP, counsel to
AccessUSA, that Completion has occurred and that funds held by Dibbs
Xxxxxx Gosling on behalf of AccessUSA may be paid to, or as directed
by, the Vendors as the Purchase Consideration payable at Completion;
and
(c) the parties and GroPep will exchange and date fully executed
counterpart copies of the Assignment Deed and the Licence Agreement;
(d) all other obligations to be performed by them on Completion
under any other clause of this agreement are performed;
(e) any act or other document or thing reasonably necessary to give
full effect to this agreement and the sale and assignment of the Assets
by the Vendor is done or executed as the case may be.
7. EMPLOYEES
7.1 Offer
As soon as practicable after the date of this agreement but before
Completion, the Purchaser must offer employment in writing to the
Employees which will (unless otherwise agreed by the Parties):
(a) commence as from close of business on Completion;
(b) involve the same duties as are undertaken by each Employee prior
to Completion;
(c) be on terms no less favourable to those on which each Employee
is employed by the Vendors prior to Completion; and
(d) set out the Purchaser's undertaking to treat any period of service
with the Vendors as service with the Purchaser.
7.2 Vendors' Obligations
The Vendors shall use reasonable endeavours to encourage the
Employees to accept the offers of employment made in accordance with
clause 7.1.
7.3 Employee Payment
On or before the fifth Business Day after Completion, the Vendors
must pay the Employee Payment to or for the Employees and the
Vendors must indemnify and keep indemnified the Purchaser and
AccessUSA against any claim against the Purchaser or AccessUSA in
respect of the Employee Payment and any other matters relating to any
of the Employees occurring prior to Completion.
7.4 Purchaser Indemnity
The Purchaser will from Completion treat the Employees and deal with
their Accrued Entitlements as if the Accrued Entitlements had been
accrued by the relevant Employee while in the employment of the
Purchaser. The Purchaser must indemnify and keep indemnified the
Vendors against each Claim against the Vendors in respect of the
Employee Entitlements.
7.5 Superannuation
The parties agree to use their best endeavours to preserve all
entitlements, if any, of the Employees under the superannuation funds
managed by Biotech Australia Defined Benefits Plan Pty Limited ACN
000 000 000 and Biotech Australia Accumulated Plan Pty Limited ACN
065 188 258, as applicable and the parties agree to use their reasonable
endeavours to ensure that the superannuation entitlements of all
Employees shall be rolled over into superannuation funds selected or
offered by the Purchaser and nominated by each Employee.
7.6 Xxxxxx Xxxxxxx
Notwithstanding anything to the contrary in this agreement, and
notwithstanding Completion occurring, the Purchaser must leave the
offer of employment it has made to Xxxxxx Xxxxxxx open for acceptance
until 3.00 pm 5 March 2002.
8. POST COMPLETION
8.1 Post Completion Accessibility
After Completion, the Purchaser must give the Vendors or any
professional adviser to the Vendors who has the Vendors' written
authority (and who has executed a confidentiality agreement which
imposes obligations of confidentiality similar to those imposed on the
Vendors pursuant to the Confidentiality Agreement), access during
normal business hours, to examine
and, if desired, copy at the Vendors' expense the Records to the extent
specifically requested and to the extent necessary for the Vendors to
comply with applicable law and to prepare tax or other returns required
of them by law.
8.2 Further Assurances
The Parties undertake to use commercially reasonable endeavours to do
all acts and execute all documents necessary or desirable to give effect
to the transactions contemplated by this agreement, including without
limitation the effective and valid issue of the Shares and Warrants.
8.3 Intellectual Property
(a) The Vendors must take all steps and do all things as are necessary
to deliver to the Purchaser certificates of registration and duly executed
assignments of the Patents (in registrable form if required to record a
change of ownership).
(b) If required by the Purchaser, the Vendors will take all reasonable
steps to procure the reinstatement of the registration in respect of any
VB12 Patent in which such registration may have lapsed.
(c) Any costs incurred by the Vendors in complying with clause
8.3(b) must be reimbursed on demand by the Purchaser and the
Purchaser must indemnify and keep indemnified the Vendors against all
costs incurred in relation to any steps taken under clause 8.3(b).
8.4 Lodgement of Registration Statements
(a) After Completion, the Purchaser must lodge (or procure the
lodgement of) a Registration Statement on Form S-3 with the SEC by
30 June 2002 to register the resale of the Shares and the Purchaser
must take all reasonable steps to ensure the Shares are registered and
tradeable on AMEX under the Registration Statement at the end of the
Escrow Period.
(b) After Completion, the Purchaser must lodge (or procure the
lodgement of) a Registration Statement on Form S-3 with the SEC by
30 June 2002 to register the Shares resulting from the exercise of the
Warrants and the Purchaser must take all reasonable steps to ensure the
Shares resulting from the exercise of the Warrants are registered and
tradeable on AMEX under the Registration Statement at the end of the
Escrow Period.
8.5 [*] Agreement
(a) The Purchaser must use its reasonable endeavours to enter into the
[*] Agreement as soon as practicable.
(b) The Vendors must provide such reasonable assistance to the
Purchaser (at the Purchasers cost) for the purpose of clause 8.5(a) as
reasonably requested by the Purchaser.
(c) The Purchaser must keep the Vendors reasonably informed of its
endeavours to enter into the [*] Agreement and
provide the Vendors with an information reasonably requested by the
Vendors in relation to the progress of entry
* Confidential Portions have been omitted and are on file separetly
with the Commission
into the [*] Agreement and assistance necessary
for the Vendors to determine if the [*] Agreement
has been entered.
8.6 [*] Payments
The Purchaser must provide the Vendors with any information
reasonably requested by the Vendors in relation to the [*]
Payments including any information necessary to determine if the
[*] Payments have been made.
9. VENDORS' WARRANTIES
9.1 Vendor's Warranties
Subject to clause 9.2 and clause 11, the Vendors represent and warrant
to the Purchaser and AccessUSA that each of the Warranties are true
and correct as at the date of this agreement and will be true and correct
at Completion.
9.2 Exceptions
The Warranties are given subject to and are qualified by those matters:
(a) recorded in this agreement;
(b) specifically set forth in the Schedule of Exceptions.
and the Purchaser may not claim that any fact or matter causes any of
the Warranties to be untrue or misleading or causes them to be
breached if the fact or matter is recorded in this agreement, disclosed
in the Schedule of Exceptions.
9.3 Indemnity
Subject to clause 11, the Vendors must indemnify the Purchaser:
(a) from all Liabilities which the Purchaser suffers or incurs directly
or indirectly arising by reason of or in connection with:
(i) any of the Warranties being untrue or inaccurate in any respect;
(ii) any other covenant or representation of the Vendors in this
agreement being untrue or inaccurate in any material respect; or
(iii) any failure by a Vendor to fulfil its obligations under this
agreement; and
(b) from all Claims made by a third party in relation to:
(i) a matter which constitutes, or in circumstances that constitute, a
breach of or inaccuracy in any of the Warranties or any other covenant
or representation of the Vendors in this agreement;
(ii) any failure by a Vendor to fulfil its obligations under this
agreement;
* Confidential Portions have been omitted and are on file separetly with
the Commission.
(iii) any and all claims, liabilities and obligations arising out of the
use or operation of the Assets or the Business on or prior to
Completion including but not limited to:
(A) any Liabilities for the clean up or removal of or for death or
injury to person or property (to the extent not covered by insurance) as
a result of the release, emission or discharge of any hazardous
substance, hazardous waste, toxic pollutants or other chemical by-
products relating to or affecting the Assets, the Premises (as such term
is defined in the Licence Agreement), which Liability arises out of any
matter that occurred or existed on or before Completion; or
(B) any Liabilities for death or injury to person or property to the
extent not covered by insurance as a result of any actual or alleged
defect in any product sold or manufactured by the Vendors on or prior
to Completion;
(iv) any claim or liability arising under the bulk sales laws of any
jurisdiction in connection with transactions contemplated by this
agreement;
(v) any Liabilities with respect to any Employee in connection with
his or her employment or termination of employment on or prior to
Completion by the Vendors (including but not limited to those Claims
referred to in clause 7.3 but excluding any claims referred to in clause
7.4); and
(vi) all actions, suits, proceedings, demands, assessments, judgments,
costs and expenses incidental to any of the foregoing including without
limitation reasonable attorney's fees and expenses.
9.4 Inducement of Purchaser
The Vendors acknowledge that:
(a) they have made and given the Warranties to induce the Purchaser
to enter into this agreement; and
(b) the Purchaser has entered into this agreement in full reliance on
the Warranties.
9.5 Application of Warranties
Each of the Warranties:
(a) remains in full force after Completion; and
(b) is separate and independent and not limited or restricted by any
other Warranty or provision of this agreement.
10. MUTUAL REPRESENTATIONS AND WARRANTIES
Each party represents and warrants to the other parties that each of the
following statements insofar as they are applicable to that party is true
and correct and will be true and correct at Completion:
(a) (status) it has been duly incorporated or created as the case may
be and is validly existing under the laws of the place of its
incorporation or creation;
(b) (power) subject to obtaining any shareholder approval required, it
has the power to enter into and perform its obligations under this
agreement, to carry out the transactions contemplated by this agreement
and to carry on its business as now conducted or contemplated;
(c) (corporate authorisations) it has taken all necessary action to
authorise the entry into and performance of this agreement and to carry
out the transactions contemplated by this agreement;
(d) (documents binding) this agreement creates valid and binding
obligations enforceable in accordance with their terms, subject to any
necessary stamping and registration; and
(e) (transactions permitted) the execution and performance by it of
this agreement and each transaction contemplated under this agreement
did not and will not violate in any respect a provision of:
(i) a law or treaty or a judgment, ruling, order or decree of a
government or governmental authority or agency binding on it;
(ii) its memorandum or articles of association, constitution or other
constituent documents; or
(iii) any other document or agreement which is binding on it or its
assets.
11. LIMITATION OF LIABILITY
11.1 Exclusions
The Purchaser agrees with the Vendors that:
(a) the only representations and warranties on which the Purchaser
and AccessUSA have relied in entering into this agreement are those set
out in this agreement in schedule 4;
(b) to the extent permitted by law, all other warranties,
representations and undertakings (whether express or implied and
whether oral or in writing) made or given by the Vendors or their
respective employees, agents or representatives are expressly excluded;
and
(c) the only person entitled to make a Claim for breach of Warranty
under this agreement is the Purchaser and then only strictly in
accordance with and subject to the provisions of this agreement.
11.2 Indemnity limitations
Despite any other provision of this agreement, the Vendors have no
Liability to the extent that:
(a) any amount the subject of a Claim is unconditionally and
irrevocably recovered by the Purchaser under an insurance policy;
(b) the Claim has arisen as a result of an act or omission of the
Purchaser after Completion (except to the extent that the act or
omission arose as a result of a request of the Vendors).
11.3 Limits on Claims
The Purchaser may not make a Claim against the Vendors for a breach
of any Warranty or under the indemnities in clause 9.3:
(a) unless notice (containing particulars sufficient to identify the
nature and alleged base of the Claim to the extent known to the
Purchaser) of the Claim is given by the Purchaser to the Vendors on or
before 31 December 2004; and
(b) until the aggregate of all Claims for breach of Warranties under
this agreement exceeds A$50,000, in which case the Purchaser can
claim in respect of the full amount and not just in respect of the extent
to which the Claim or Claims exceed A$50,000.
11.4 Maximum aggregate liability for Claims
The maximum Liability of the Vendors (excluding legal costs and
expenses incurred in defending a Claim from a third party) as a result
of Claims for breach of Warranties or under the indemnities in clause
9.3 is limited to the Purchase Consideration.
11.5 Notice of potential Claim
As soon as is reasonably possible after a party first becomes aware of
anything which is or may be reasonably likely to give rise to a Claim
under this clause 11:
(a) it must notify the other parties in writing of that fact, together
with all available details; and
(b) it must, as and when requested by other parties, provide to those
other parties any information and details which those other Parties
reasonably require.
Failure to give such notice shall not relieve the parties to be notified of
their respective obligations (under clause 9 and this clause 11) except to
the extent, if at all, that such parties were actually materially harmed
by the delay or failure to receive such notice.
11.6 Rights of the Vendors
In respect of any act, matter or thing, notified by the Purchaser under
clause 11.3(a) or by any Party under clause 11.5, the Purchaser will:
(a) conduct any legal or other proceedings or any negotiations in
consultation with the Vendors; and
(b) act reasonably in the conduct of those proceedings and/or
negotiations.
11.7 Notification of credit by Purchaser
If any payment in respect of a Claim under the Warranties is made to
the Purchaser by or on behalf of the Vendors and after payment is
made the Purchaser receives any benefit or credit by reason of the
matters to which the Claim relates, then the Purchaser:
(a) must immediately notify the Vendors of the benefit or credit; and
(b) pay to the Vendors an amount equal to that paid to the Purchaser
by or on behalf of the Vendors or (if less) the amount of the benefit or
credit received by the Purchaser.
12. NO MERGER
The provisions of this agreement capable of having effect after
Completion do not merge on Completion and continue to have full
effect.
13. NOTICES
13.1 Any notice to be given to one party by the other tinder this
agreement:
(a) must be in legible writing and in English addressed as follows:
(i) If to the Vendors:
Address: P0 Box 283
RYDALMERE BC XXX 0000
Attention: Xxxxx Xxxxxxxxx
Facsimile: + 61 2 9898 1119
with a copy to:
Address: Xxxxx 0, Xxxxx Xxxxx
000 Xxxx Xxxxxx
XXXXXX XXX 0000
Attention: Xxxx Xxxx
Facsimile: + 61 2 8233 9555
(ii) If to the Purchaser:
Address: 00 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Attention: Dr Xxxx Xxxxxxx Xxxxx
Facsimile: TBA
with a copy to:
Address: 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
XXXXXX 00000-0000
XXXXXX XXXXXX OF AMERICA
Attention: Xxxxx X Xxxx
Facsimile: x0 000 000 0000
(iii) If to AccessUSA:
Address: 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
XXXXXX 00000-0000
XXXXXX XXXXXX OF AMERICA
Attention: Xxxxx X Xxxx
Facsimile: x0 000 000 0000
with a copy to: Xxxxxxx Xxxx LLP
Address: 000 Xxxxxxx Xxxxxx, Xxxxxx XX 00000
Attention: Xxxx X. Xxxxxxxxx III, Esq
Facsimile: + 1 617 951 8736
(iv) If to HTLA:
Address: X0 Xxx 000
XXXXXXXXX XX XXX 0000
Attention: Xxxxx Xxxxxxxxx
Facsimile: + 61 2 9898 1119
with a copy to:
Address: Xxxxx 0, Xxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx XXX 0000
Attention: Xxxx Xxxx
Facsimile: + 61 2 8233 9555
(b) must be delivered to the recipient in person or by overnight
international courier (in the case of AccessUSA) hand delivery, by
prepaid ordinary post or by facsimile;
(c) must be signed by a duly Authorised Officer or under the common
seal of the sender;
13.2 A notice is regarded as being given by the sender and received
by the recipient:
(a) if by delivery in person, when delivered to the recipient, but if
delivery or receipt is not on a Business Day or occurs after 5.00 pm on
a Business Day it will be deemed to have been duly given or made at
9.00 am on the next Business Day;
(b) if by post, three Business Days from and including the date of
postage, or seven Business Days from and including the date of postage
if posted to or from a place outside Australia after shipment by a
reputable international courier; or
(c) in the case of a facsimile or e-mail, on production of a
transmission report by the machine from which the facsimile or e-mail
were sent which indicates the facsimile or e-mail was sent in its entirety
to the facsimile number or e-mail address of the recipient.
13.3 A notice may be relied upon by the recipient and the recipient is
not liable to the other party for any consequences of that reliance if the
recipient reasonably believes the notice to be genuine, correct and
authorised by the sender.
13.4 If a notice is received by facsimile on a day which is not a
Business Day or after 5.00 pm on a Business Day, that notice is
regarded as received at 9.00 am on the following Business Day.
14. COSTS
14.1 Each party must bear its own costs in relation to the preparation
and execution of this agreement.
14.2 The Purchaser must pay all stamp duty on this agreement and on
any instrument or other document executed to give effect to any
provisions of this agreement.
15. ENTIRE AGREEMENT
This agreement and the Confidentiality Agreement contain the entire
understanding of the parties as to its subject matter and any and all
previous understandings or agreements on that subject matter cease to
have any effect from the date of this agreement.
16. NO WAIVER
16.1 The failure of a party to exercise or delay in exercising a right,
power or remedy under this agreement does not prevent its exercise.
16.2 A provision of or right under this agreement may not be waived
except by a waiver in writing signed by the party granting the waiver,
and will be effective only to the extent specifically set out in that
waiver.
17. GOVERNING LAW AND JURISDICTION
17.1 This agreement is governed by the law of New South Wales.
17.2 Each party irrevocably and unconditionally submits to the non-
exclusive jurisdiction of the courts of New South Wales.
18. COUNTERPARTS
This agreement may be executed in any number of counterparts and all
those counterparts taken together are regarded as one instrument.
19. GST
19.1 Interpretation
In this clause 19 the expressions "Input Tax Credit", "Supply", "Tax
Invoice", "Recipient" and "Taxable Supply" have the meaningsgiven to
those expressions in the GST Act.
19.2 Amounts exclusive of GST
With the exception of any amount payable under this clause 19, unless
otherwise expressly stated, all amounts stated to be payable in this
agreement are exclusive of GST.
19.3 Additional amount for GST
(a) If GST is imposed on any Supply made under or in accordance
with this agreement, the Recipient of the Taxable Supply must pay to
the Supplier an additional amount equal to the GST payable on or for
the Taxable Supply. Payment of the additional amount will be made at
the same time as payment for the Taxable Supply is required to be
made in accordance with this agreement, subject to the provision of a
Tax Invoice.
(b) If this agreement requires a party to pay for, reimburse or
contribute to any expense, loss, indemnity or outgoing ("Reimbursable
Expense") suffered or incurred by another party, the amount required
to be paid, reimbursed or contributed by the first party will be the sum
of:
(i) the amount of the Reimbursable Expense net of Input Tax Credits
(if any) to which the other party is entitled in respect of the
Reimbursable Expense; and
(ii) if the other party's recovery from the first Party is a Taxable
Supply, any GST payable in respect of that Supply.
20. WITHHOLDING TAX
20.1 Amounts exclusive of withholding tax
With the exception of any amount payable under this clause 20, unless
otherwise expressly stated, all amounts stated to be payable in this
agreement are exclusive of any withholding tax or any like impost
(whether imposed in the United States of America or any other
jurisdiction).
20.2 Additional Amount
If withholding tax, or any like impost, is imposed in any payment made
under or in accordance with this agreement, the Purchaser must pay
directly (if applicable) or must reimburse the Vendors for any amount
paid in respect of that withholding tax or like impost.
21. GUARANTEED OBLIGATIONS
21.1 Guarantee
AccessUSA irrevocably and unconditionally guarantees to the Vendors
the performance and observance of all the Guaranteed Obligations. If
the Purchaser fails to perform and observe the Guaranteed Obligations,
AccessUSA agrees to perform the Guaranteed Obligations on demand at
any time and from time to time or as directed by the Vendors in
writing.
21.2 Indemnity
(a) As a separate, primary and severable liability, AccessUSA
irrevocably and unconditionally indemnifies the Vendors, and agrees to
keep the Vendors indemnified, against any loss or damage suffered or
incurred by the Vendors arising out of:
(i) any failure by the Purchaser to observe or perform the Guaranteed
Obligations whether contingent, actual or prospective; or
(ii) any Guaranteed Obligation being ineffective for any reason
whatsoever (whether or not AccessUSA or the Purchaser knew or ought
to have known of that reason), including but not limited to:
A) any legal limitation, disability or incapacity of the Purchaser or
any lack or improper exercise of a power or authority in relation to the
Purchaser;
(B) the Purchaser making an arrangement, assignment or composition
for the benefit of its creditors or an order made or resolution effectively
passed for the winding up of the Purchaser or the Purchaser going into
liquidation or a receiver, receiver and manager, administrator or
provisional liquidator being appointed to the Purchaser; or
(C) any Guaranteed Obligation being or becoming illegal, invalid,
void, voidable or unenforceable but not through the passage of time.
(b) Each indemnity in this guarantee and indemnity is a continuing
obligation until 27 February 2005. It is not necessary for the Vendors
to enforce the Guarantee Obligations against the Purchaser or otherwise
to incur expense, loss, damage or make payment before enforcing a
right of indemnity conferred by this guarantee and indemnity.
21.3 Continuing Security
This guarantee and indemnity is a continuing security despite any
settlement of account, intervening payment, express or implied
verification or any other matter or thing whatever, until a final
discharge of this guarantee and indemnity has been given to
AccessUSA or until 27 February 2005.
21.4 Acknowledgment by AccessUSA
AccessUSA confirms that:
(a) it has relied exclusively on its own knowledge and enquiries of the
Purchaser's transactions with the Vendors; and
(b) it has not entered this guarantee and indemnity in reliance on, or
as a result of any statement (other than the provisions of this
agreement, including the Warranties) or conduct of any kind of or on
behalf of the Vendors.
21.5 Enforcement
AccessUSA agrees that the Vendors may enforce this clause 21
following a demand on the Purchaser in relation to the Guaranteed
Obligations.
21.6 Consideration
AccessUSA warrants and represents to the Vendors that it is the
holding company of the Purchaser and that it receives a benefit from
giving the guarantee and indemnity provided in this clause 21.
AccessUSA acknowledges entering into this agreement for valuable
consideration.
22. VENDORS' OBLIGATIONS
22.1 Guarantee
HTLA irrevocably and unconditionally guarantees to the Purchaser the
performance and observance of all the Vendors' Obligations. If the
Vendors fail to perform and observe the Vendors Obligations, HTLA
agrees to perform the Vendors Obligations on demand at any time and
from time to time or as directed by the Purchaser in writing.
22.2 Indemnity
(a) As a separate, primary and severable liability, HTLA irrevocably
and unconditionally indemnifies the Purchaser, and agrees to keep the
Purchaser indemnified, against any loss or damage suffered or incurred
by the Purchaser arising out of:
(i) any failure by the Vendors to observe or perform the Vendors'
Obligations whether contingent, actual or prospective; or
(ii) any Vendors' Obligation being ineffective for any reason
whatsoever (whether or not HTLA or the Vendors knew or ought to
have known of that reason), including but not limited to:
(A) any legal limitation, disability or incapacity of the Vendors or any
lack or improper exercise of a power or authority in relation to the
Vendors;
(B) the Vendors making an arrangement, assignment or composition
for the benefit of its creditors or an order made or resolution effectively
passed for the winding up of a Vendor or a Vendor going into
liquidation or a receiver, receiver and manager, administrator or
provisional liquidator being appointed to a Vendor; or
(C) any Vendors' Obligation being or becoming illegal, invalid, void,
voidable or unenforceable but not through the passage of time.
(b) Each indemnity in this guarantee and indemnity is a continuing
obligation until December 2004. It is not necessary for the Purchaser to
enforce the Vendors
Obligations against the Vendors or otherwise to incur expense, loss,
damage or make payment before enforcing a right of indemnity
conferred by this guarantee and indemnity.
22.3 Continuing Security
This guarantee and indemnity may not be assigned by HTLA without
the prior written consent of the Purchaser and AccessUSA and is a
continuing security despite any settlement of account, intervening
payment, express or implied verification or any other matter or thing
whatever, until a final discharge of this guarantee and indemnity has
been given to HTLA or until 31 December 2004.
22.4 Acknowledgment by HTLA
HTLA confirms that:
(a) it has relied exclusively on its own knowledge and enquiries of the
Vendors' transactions with the Purchaser; and
(b) it has not entered this guarantee and indemnity in reliance on, or
as a result of any statement (other than the provisions of this
agreement) or conduct of any kind of or on behalf of the Purchaser.
22.5 Enforcement
HTLA agrees that the Purchaser may enforce this clause 22 following a
demand on the Vendors in relation to the Vendors' Obligations.
22.6 Consideration
HTLA warrants and represents to the Purchaser that it is the parent
company of the Vendors and that it receives a benefit from giving the
guarantee and indemnity provided in this clause 22. HTLA
acknowledges entering into this agreement for valuable consideration.
22.7 Notification by HTLA
Until a final discharge of this guarantee and indemnity has been given
to HTLA or until 30 June 2005, HTLA shall promptly notify the
Purchaser of any:
(a) change or impending change in the capital structure or ownership
of HTLA; or
(b) decrease or impending decrease in the book value of HTLA below
AU$4,000,000.
22.8 Limitation
Notwithstanding any other provision of this clause 22, the obligations
and liabilities of HTLA under this clause 22 are subject to the
qualifications and limitations set out in clauses 9.2 and 11.
23. ASSIGNMENT
23.1 The Vendors may assign in whole or in part (pursuant to the
terms of the Assignment Deed or otherwise) the benefits
of this agreement to GroPep but otherwise may not assign the benefits
or obligations of this agreement to any third party without the prior
written consent of the Purchaser.
23.2 The Purchaser and AccessUSA irrevocably authorise the
Vendors to:
(a) keep the counterpart of the Assignment Deed;
(b) complete the transaction contemplated by the Assignment Deed
after Completion (if necessary); and
(c) complete the blanks in the Assignment Deed.
EXECUTED as an agreement
SIGNED for and on behalf of BIOA )
PTY LIMITED ABN 52 003 804 984 )
in accordance with section 127 of the )
Corporation Act: )
)
/s/ C.H. Bregenhoj ) /s/ Xxxxxxx Xxxx
----------------------- -------------------------------
Signature of Director ) Signature of Director/Secretary
C.H. Bregenhoj ) Xxxxxxx Xxxx
----------------------- -------------------------------
Name of Director ) Signature of Director/Secretary
SIGNED for and on behalf of )
BIOTECHNOLOGY AUSTRALIA )
PTY LIMITED ABN 32 001 521 866 in )
accordance with section 127 of the )
Corporation Act: )
)
/s/ C.H. Bregenhoj ) /s/ Xxxxxxx Xxxx
----------------------- -------------------------------
Signature of Director ) Signature of Director/Secretary
C.H. Bregenhoj ) Xxxxxxx Xxxx
----------------------- -------------------------------
Name of Director ) Signature of Director/Secretary
SIGNED for and on behalf of HUMAN )
THERAPEUTICS LIMITED ABN 36 )
008 540 556 in accordance with section )
127 of the Corporations Act: )
)
/s/ C.H. Bregenhoj ) /s/ Xxxxxxx Xxxx
------------------------- -------------------------------
Signature of Director ) Signature of Director/Secretary
C.H. Bregenhoj ) Xxxxxxx Xxxx
------------------------- -------------------------------
Name of Director ) Signature of Director/Secretary
SIGNED for an don behalf of ACCESS )
PHARMACEUTICALS AUSTRALIA )
PTY LIMITED CAN 099 593 898 in )
accordance with section 127 of the )
Corporation Act: )
)
/s/ Xxxxx X. Xxxx )
-------------------------- -------------------------------
Signature of Director ) Signature of Director/Secretary
Xxxxx X. Xxxx )
-------------------------- -------------------------------
Name of Director ) Name of Director/Secretary
SIGNED for and on behalf of ACCESS )
PHARMACEUTICALS, INC. )
)
/s/ Xxxxx X. Xxxx ) /s/ Xxxxxxx X. Xxxxxxxx
-------------------------- ------------------------------
Signature of Officer ) Signature of Officer
Xxxxx X. Xxxx ) Xxxxxxx X. Xxxxxxxx
-------------------------- ------------------------------
Name of Officer (print) ) Name of Officer (print)
President and CEO ) Asst. Secretary
Office held (print) ) Office held (print)
