Exhibit 10.12(a) - Acquisition Agreement - BioProgess (UK)
An AGREEMENT dated this 19th day of November, 1997. BETWEEN:
(1) BIOPROGRESS TECHNOLOGY INTERNATIONAL, INC., (the Company), a company
registered in Nevada, United States of America, having offices situate at 0000
Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000. (2) THE JADE PARTNERSHIP
INTERNATIONAL, INC., (JPI) a company registered in Delaware and having offices
situate at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000. (3) XXXXX XXXX
XXXXXXXXX (BJM) an individual residing at 0 Xxxxxxx Xxxx, Xxxxxx, Xxxxx., XX0
0XX, Xxxxxxx. (4) XXXXXXX XXXXX XXXXX (MDB) an individual residing at 00 Xxx
Xxxxxx, Xxxxxxxx, Xxxxxxx XX00 0XX Xxxxxxx. (5) XXXXX XXXXXXX XXXXXXX XXXXXXX
(JTCL) an individual residing at 00X Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxx 0X0
0XX, Xxxxxxx. (6) XXXXXX XXXXXXX XXXXX (EZN) an individual residing at 0 Xxxxx
Xxxxx, Xxxxxxxxx, Xxxxx., Xxxxxxx. (7) XXX XXXXXXXXX (JM) an individual residing
at 0 Xxxxxxx Xxxx, Xxxxxx, Xxxxx., XX0 0XX, Xxxxxxx.
WHEREAS: (A) The Company wishes to purchase for valuable consideration an option
(the Option as hereinafter defined) to acquire all shares beneficially owned by
the other parties hereto in BioProgress Technology Limited (BTL), a company
registered in England, and upon the terms and conditions set forth herein. (B)
Each of JPI, BJM, MDB, JTCL, EZN and JM wish to grant to the Company an option
to acquire all shares beneficially owned respectively by them in BTL. BJM, MDB,
JTCL and EZN are the only Directors of BTL and individually and collectively
they wish to give the Company their irrevocable undertaking to recommend to all
shareholders in BTL the offer (the Offer as hereinafter defined) to be submitted
by the Company at the time it exercises the Option granted hereunder. JPI owns a
beneficial interest in the controlling number of shares of BTL and JPI wishes to
grant BTI an option to acquire such interest.
1. OPERATIVE PROVISIONS In this Agreement, the following terms shall have the
following meanings unless the context otherwise requires: Effective Date - The
date hereof. Completion - Exercise of the Option by the Company and exchange,
delivery and registration of the Consideration Shares and exchange, delivery and
registration of the BTL Shares. Option - An option to purchase one share of
common stock in BTL by way of a share exchange for one and one-half shares of
common stock in the Company Exercise Date - 30 June, 1998. Offer - An offer
submitted in writing by the Company to all registered shareholders in BTL at the
time said offer is made and which offers to purchase by way of a share exchange
all shares of common stock beneficially owned by said shareholders on the same
terms and conditions as the Option. Consideration Shares - Ordinary shares of
common stock in the Company which shall be delivered to the Vendors in exchange
for shares of common stock in BTL pursuant to the Offer. BTL Shares - Those
shares of BTL owned by the Vendors or in which they have a beneficial interest.
Agreement - This Agreement. Vendors - Collectively, JPI, BJM, MDB, DB, JTCL, EZN
and JM. Authorised Vendor - JPI.
1.2 Number and Gender Terms: In construing this Agreement, feminine or neuter
pronouns shall be substituted for those masculine in form and vice versa in any
place where the context so requires, and plural terms shall be substituted for
singular and singular for plural in any place where the context so requires.
2. GRANT OF OPTION
2.1 The Vendors do individually and collectively hereby grant to the Company the
Option to purchase the BTL Shares.
3. CONSIDERATION
3.1 Consideration for this Agreement shall be the mutual undertakings hereby
given and received, the sufficiency of which is hereby acknowledged by the
Parties.
4. AUTHORISED VENDOR
4.1 The Vendors hereby nominate and authorise JPI to act as their Authorised
Vendor in all matters relating to the subject matter of this Agreement, and to
execute, sign and deliver all documents as may be required and to perform all
acts and to do all things deemed necessary by JPI in order to properly and
effectively deliver the obligations of the Vendors hereunder, and the Vendors do
hereby irrevocably appoint and constitute JPI as the Vendors' true and lawful
attorney with full power (in the name of the Vendors or otherwise) to execute
the documents referred to earlier in this clause for the purpose of securing and
putting into effect the intent of this Agreement such authority and appointment
shall take effect as an irrevocable appointment pursuant to the Powers of
Xxxxxxxx Xxx 0000 Section 4.
4.2 The Vendors do hereby collectively and individually covenant with and
undertake with JPI to indemnify JPI and to hold JPI free from any and all claims
and liabilities, whether actual or contingent, and no matter how arising related
to JPI's appointment as Authorised Vendor.
5. EXERCISE OF OPTION
5.1 The Company may, at any time on or before close of business on the Exercise
Date, exercise the Option in the following manner:
5.1.1 by notice in writing to the Vendors; and,
5.1.2 by delivery of the Consideration Shares in accordance with Schedule 1;
and,
5.1.3 by registering the Consideration Shares in the names of the Vendors; and,
5.1.4 by contemporaneously delivering the Offer to all registered and beneficial
owners of BTL's common stock as shall be registered at the time the Offer is
made.
5.2 Upon satisfaction of the provisions of sub-clause 5.1, and subject to the
provisions of Clause 6, the Vendors shall deliver to the Company the BTL Shares,
along with a signed stock transfer form in respect of the full amount of shares
held by them.
5.3 Upon satisfaction of the provisions of sub-clause 5.1, BJM, MDB, JTCL and EN
shall deliver to all registered shareholders of common stock in BTL, save for
the Vendors, a letter prepared on behalf of the board of directors of BTL
unanimously recommending acceptance of the Offer.
6. CONDITIONS PRECEDENT OF THE VENDORS
6.1 Completion shall be subject to the following conditions precedent:
6.1.1 The Company shall deliver to the Vendors a copy of its latest audited
financial statements and management accounts in respect of any whole calendar
month following completion of its audited financial statements, and following a
review thereof, the Vendors shall have the right, at their sole discretion, to
terminate this Agreement without liability or recourse if the Vendors determine
such audited financial statements or management accounts to be unsatisfactory
for any reason; and,
6.1.2 during the term of this Agreement the Company shall at all times have
available under the absolute control of its directors such number of authorised
shares of its common stock as shall be required to effect Completion; and,
6.1.3 the Company shall not have created or allowed to persist any class of
stock other than common shares; and,
6.1.4 save for the provisions of sub-clause 6.1.5, the maximum number of shares
of common stock in the Company which shall be issued and outstanding immediately
prior to Completion shall be FIVE MILLION (5,000,000), and at Completion the
Company shall not have entered into any agreement with any third party which
would conflict with the provisions of this sub-clause had such agreement been
exercised or made effective; and,
6.1.5 the Company shall have completed or shall be in a position to complete at
Completion the sale of such number of shares of its common stock at a price not
less than FIVE DOLLARS ($5) per share so as to generate the sum of FOUR MILLION
DOLLARS ($4,000,000) net of all costs, expenses, commissions and fees paid or
incurred relative thereto.
6.2 The Vendors may, at their sole discretion, waive, amend, vary or otherwise
agree to change any or all of the conditions precedent set forth in this Clause
6.
7 CONDITIONS PRECEDENT OF THE COMPANY
7.1 Completion shall be subject to the following conditions precedent:
7.1.1 BTL shall deliver to the Company a copy of its latest audited financial
statements and management accounts in respect of any whole calendar month
following completion of its audited financial statements, and following a review
thereof, the Company shall have the right, at its sole discretion, to terminate
this Agreement without liability or recourse if it determines such audited
financial statements or management accounts to be unsatisfactory for any reason;
and,
7.1.2 BTL shall not have created or allowed to persist any class of stock other
than common shares; and,
7.1.3 the maximum number of shares of common stock in BTL which shall be issued
and outstanding at Completion shall be TEN MILLION ONE HUNDRED THOUSAND
(10,100,000), and at Completion BTL shall not have entered into any agreement
with any third party which would conflict with the provisions of this sub-clause
had such agreement been exercised or made effective.
7.2 BTL may, at its sole discretion, waive, amend, vary or otherwise agree to
change any or all of the conditions precedent set forth in this Clause 7.
8. TERM AND TERMINATION
8.1 This Agreement shall be in effect from the Effective Date through close of
business on the Exercise Date.
8.2 In the event that for any or no reason the Company fails to exercise the
Option in accordance with the provisions of this Agreement, in full and on time,
time being of the essence, then this Agreement shall forthwith lapse and shall
cease to be of any effect without liability of any party to any other party
hereto.
9. GENERAL
9.1 This Agreement shall be binding upon and enure to the benefit of the parties
hereto and their respective legal successors but shall not otherwise be
assignable by any party without the written consent of the other party, such
consent not to be unreasonably withheld.
9.2 No variation or amendment of this Agreement shall bind any party unless made
in writing and agreed to in writing by duly authorised representatives of the
parties.
9.3 Wherever possible, each provision of this Agreement shall be interpreted in
such a manner as to be effective and valid under applicable law, but if any
provision hereof shall be prohibited or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or remaining provisions of
this Agreement.
9.4 The headings in this Agreement are for convenience only and are not intended
to have any legal effect.
9.5 A failure by any party hereto to exercise or enforce any rights conferred
upon it by this Agreement shall not be deemed to be a waiver of any such rights
or operate so as to bar the exercise or enforcement thereof at any subsequent
time or times.
9.6 This Agreement contains the whole agreement between the parties and
supersedes any and all prior written or oral agreement(s) between them in
relation to its subject matter.
9.7 This Agreement may be executed in seven (7) counterparts, each of which
shall be deemed an original, but which together shall be deemed to constitute
one (1) and the same agreement.
9.8 Time shall be of the essence throughout this Agreement.
10. NOTICES
10.1 Any and all notices required or permitted hereunder shall be in writing and
sent to the intended recipient at its address set forth herein, either by
registered or certified mail, return receipt requested, postage prepaid,
facsimile transmission (and any such notice shall be confirmed promptly
thereafter by personal delivery or mailing in accordance with the other
provisions of this Clause, but such confirmation delivery shall not affect the
date on which such notice shall have been given), overnight delivery service, or
personal delivery. Each such notice shall be effective (i) if given by mail, as
of three (3) business days after such notice or communication is deposited in
the United States Mail, (ii) if given by facsimile communication, as of the date
on which such notice is transmitted to the facsimile number herein specified
below, (iii) if sent for overnight delivery via Federal Express or other
reputable national overnight delivery service, one (1) business day after such
notice or delivery is entrusted to such service, with recipient signature
required, or (iv) if personally delivered, when delivered at the address of the
intended recipient. Any party may change the address or facsimile number to
which notices or other communications hereunder are to be delivered or sent by
giving the other party notice in the manner set forth herein. Any notice
required to be made within a stated period of time shall be considered timely
mailed if deposited before midnight of the last day of the stated period.
(a) If to the Vendors: The Jade Partnership International, Inc., 0000 Xxxxxxxxx
Xxxxx, Xxxxxxx, XX 00000; Facsimile: (x00) 000 000 0000; and (b) If to the
Company: Xxxx Xxxxxx, 0000 X. Xxxx Xxxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000,
Facsimile: (x00) 000 000 0000
16. GOVERNING LAW
16.1 This Agreement shall be governed by and construed in accordance with the
laws of England and Wales and the parties do hereby submit themselves
exclusively to this jurisdiction.
AS WITNESS the hands of the parties the day and year first written above.
Signed:______________________________
Duly authorised for and on behalf of
BIOPROGRESS TECHNOLOGY, INC.
Signed:______________________________
Duly authorised for and on behalf of
THE JADE PARTNERSHIP INTERNATIONAL, INC.
Signed:______________________________
XXXXX XXXX XXXXXXXXX
Signed:______________________________
XXXXXXX XXXXX XXXXX
Signed:______________________________
XXXXX XXXXXXX XXXXXXX XXXXXXX
Signed:______________________________
XXXXXX XXXXXXX XXXXX
Signed:______________________________
XXX XXXXXXXXX
Exhibit 10.12(b) - Amendment to Acquisition Agreement - BioProgess (UK)
An AGREEMENT dated this 30th day of June 1998, between:
BIOPROGRESS TECHNOLOGY INTERNATIONAL, INC., (BTI), a corporation registered in
the State of Nevada, having offices at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000; and,
THE JADE PARTNERSHIP INTERNATIONAL, INC., (JPI), a corporation registered in the
State of Delaware, having offices at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000.
WHEREAS:
BTI, JPI et al, are parties to a Share Purchase Option Agreement (the Agreement)
dated 31st October, 1997.
Pursuant to Clause 4 of the Agreement, JPI has the power of attorney to act on
and to deal with all matters relative to or arising from the Agreement on behalf
of the other parties, excluding BTI. Pursuant to Clause 6 and to Clause 7 of the
Agreement, BTI and JPI wish to agree to waive, vary and amend certain provisions
of the Agreement.
IT IS HEREBY AGREED AS FOLLOWS:
Definitions in this Agreement shall have the same meanings as Definitions in the
Agreement.
In consideration of the mutual obligations, undertakings and other benefits
hereby delivered and received, the sufficiency of which is acknowledged by the
parties hereto, then:
1. Pursuant to subclause 7.1.3 of the Agreement, BTI agrees to amend the maximum
number of shares of common stock in BTL which shall be issued and outstanding at
Completion from TEN MILLION ONE HUNDRED THOUSAND (10,100,000), to SIXTEEN
MILLION (16,000,000).
2. Pursuant to Subclause 6.1.5 of the Agreement, JPI agrees to waive the
condition precedent under which the Company shall have completed or shall be in
a position to complete at Completion the sale of such number of shares of its
common stock at a price not less than FIVE DOLLARS ($5) per share so as to
generate the sum of FOUR MILLION DOLLARS ($4,000,000) net of all costs,
expenses, commissions and fees paid or incurred relative thereto.
3. In consideration of JPI having agreed to the waiver pursuant to Clause 2
hereof, BTI undertakes at Completion to purchase debt incurred by BTL, whether
actual or contingent, to a maximum of ONE MILLION DOLLARS ($1,000,000), and
shall pay for such debt by the issue of ordinary shares of its common stock at a
value equal to the closing inside bid price the day on which the purchase of
said debt is made.
4. BTI and JPI both agree to change the Effective Date from 30th June, 1998 to
31st March 1999.
5. All other terms and conditions of the Agreement shall, mutatis mutandis,
remain in full force and effect.
6. This Agreement shall be governed by and construed in accordance with the laws
of England and Wales and the parties do hereby submit themselves exclusively to
this jurisdiction.
AS WITNESS the hands of the parties the day and year first written above.
Signed:______________________________
Xxxxx X. Xxxxxxxxx, C. E. O.
Duly authorised for and on behalf of
BIOPROGRESS TECHNOLOGY, INC.
Signed:______________________________
Xxxxx X. X. Xxxxxxx, Director and C. F. O.
Duly authorised for and on behalf of
THE JADE PARTNERSHIP INTERNATIONAL, INC.
