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EXHIBIT 2(b)
AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
Amendment ("Amendment") to Agreement and Plan of Reorganization
entered into as of November 8, 1995 by and among Sector Associates, Ltd., a
Delaware corporation ("Acquiror"), Viragen (Scotland) Limited, a Scottish
private limited company ("Acquiree") and Viragen, Inc., a Delaware corporation
("Stockholder").
W I T N E S S E T H:
WHEREAS, Acquiror, Acquiree and Stockholder entered into an Agreement
and Plan of Reorganization, dated September 20, 1995, as modified by that
letter of agreement dated October 2, 1995 ("Agreement and Plan of
Reorganization");
WHEREAS, Acquiror, Acquiree and Stockholder deem it to be in their
respective best interests to amend the Agreement and Plan of Reorganization in
order to complete arrangements for the closing of the transaction identified
within the Agreement and Plan of Reorganization; and
WHEREAS, upon the terms and conditions set forth herein, Acquiror,
Acquiree and Stockholder have agreed to the following amendments to the
Agreement and Plan of Reorganization.
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NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter contained, the parties hereto agree as follows:
1. Closing Date. The Closing Date of the Agreement and Plan of
Reorganization shall occur five (5) days following the filing by Acquiror of
its Annual Report on Form 10-KSB for the year ended June 30, 1995 and its
Quarterly Report on Form 10-QSB for the quarterly period ended September 30,
1995; provided, however, that the Closing Date shall occur no later than 30
days from the date hereof unless the parties mutually agree otherwise. The
parties agree that the extension of the Closing Date to accommodate the filing
of the aforementioned periodic reports are not intended to extend the period
for the undertaking of due diligence by Acquiree and Stockholder, and that such
period for completion of due diligence shall expire as of the date hereof,
notwithstanding Section 9.5 of the Agreement and Plan of Reorganization.
Acquiror represents and warrants that it is unaware of any material changes to
be included in the aforementioned periodic reports to be filed not otherwise
previously disclosed in the periodic reports filed by Acquiror or information
delivered in writing to Acquiree and Stockholder pursuant to the Agreement and
Plan of Reorganization.
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2. Interim Loan. Pending the closing contemplated by Paragraph
1 above, Acquiror agrees to make an interim loan to Acquiree of $500,000
pursuant to a Secured Promissory Note attached hereto as Exhibit A and Pledge
and Escrow Agreement attached hereto as Exhibit B. In the event the
aforementioned closing under the Agreement and Plan of Reorganization is not
undertaken as provided in Paragraph 1 above, the Secured Promissory Note shall
be due and payable on May 8, 1996. At such time as the contemplated closing
takes place, the Secured Promissory Note shall be deemed satisfied, and the
principal amount thereof and related interest shall be contributed to and shall
become part of the capital of the Acquiror to be on hand net of liabilities as
referred to in Section 8.4 of the Agreement and Plan of Reorganization.
3. Additional Contribution. Not later than 30 days from the date
hereof, there shall be contributed to the capital of Acquiror the sum of
$300,000 through a private placement to be undertaken on behalf of Acquiror of
the equivalent of 1,790,490 shares of common stock of Acquiror.
4. Determination of Net Worth. For purposes of determining cash
assets on hand net of liabilities of $800,000 as provided in Section 8.4 of the
Agreement and Plan of Reorganization and consisting of the sum of $500,000 to
be delivered simultaneously
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with the execution hereof as provided in Paragraph 2 above and the additional
$300,000 to be delivered as provided in Paragraph 3 above, such $800,000 of
assets on hand shall be net of those liabilities (existing, accrued or
contingent) as of the Closing Date, as well as those expenses associated with
(i) completing a private placement required to raise the balance of the
$800,000 and (ii) the preparation and filing of the Form 10-KSB for the fiscal
year ended June 30, 1995 and the Form 10-QSB for the quarterly period ended
September 30, 1995. It is understood, however, that information concerning the
Acquiree and the Stockholder provided to the Acquiror to be included in such
periodic reports shall be prepared at the costs of the Acquiree, and the costs
associated with filing of the Form 8-K Current Report subsequent to the closing
and reflecting (i) the completion of the acquisition of Acquiree and (ii) the
anticipated change in accountants will be borne by the Acquiree.
5. Capitalization. Upon the 30th day immediately following the
Closing Date and the issuance of the additional shares of Common Stock as
provided in Paragraph 3 above, Acquiror shall have an outstanding
capitalization that consists of no more than approximately 5,037,617 shares of
its common stock, inclusive of the shares issued in order to comply with
Section 8.4 and exclusive
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of the shares issued to the Stockholder on the Closing Date and any shares
issued other than in connection with Paragraph 8.4 of the Agreement and Plan of
Reorganization. The parties hereto do adopt the terms of correspondence dated
October 2, 1995 as though the same were set forth within this Amendment.
6. Composition of Board of Directors Immediately following the
Closing Date. On or prior to the Closing Date, all members except one member
of the present board of directors of Acquiror shall have tendered their
resignation in favor of a new member of the board of directors, with such
remaining member being a designee of the Stockholder. The new board of
directors shall remain in effect until the earlier of 30 days following the
Closing Date or the date of delivery of the balance of the funds necessary to
satisfy the requirements of Section 8.4 of the Agreement and Plan of
Reorganization.
7. Conversion of Acquiror Shares. The Acquiror Shares will
permit the Stockholder to convert into 78,400,000 shares of common stock of the
Acquiror, each share of Class B Convertible Preferred Stock to be convertible
into 39.2 shares of common stock of the Acquiror such that the Stockholder
shall hold no less than 94% of the capital stock and interest of the Acquiror.
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8. Investment Banking Arrangements. Pursuant to an Investment
Banking Agreement, FAC Enterprises, Inc. shall receive from the Stockholder
71,429 shares of the Acquiror Shares ("FAC Shares") upon delivery of the
balance of the funds necessary to satisfy the requirements of Section 8.4.
Until that time, the FAC Shares shall remain held by the Stockholder as
collateral for performance of delivery of the balance of the funds required
pursuant to Section 8.4 and this Amendment. In the event requirements of
Section 8.4 are not satisfied within 30 days of the Closing Date, the right to
the FAC Shares by FAC Enterprises, Inc. shall be forfeited. Furthermore, to the
extent that the outstanding capitalization of Acquiror exceeds 5,037,617 Shares
of common stock, exclusive of the shares held by Stockholder and those shares
not issued in connection with completing the funding requirements of Section 1
of this Amendment, at the end of the 30 days immediately following the Closing
Date, such excess amount shall be deducted from the FAC Shares in its common
stock equivalent (39.2 shares of common stock equal to one share of Class B
Convertible Preferred Stock.) The previous Investment Banking Agreement between
Stockholder and Rozel International Holdings Limited ("Rozel") has been
terminated and a release therefrom shall be provided by Rozel on or prior to
the Closing Date.
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9. Supersedes. Each of Acquiror, Acquiree and Stockholder agree
that this Amendment shall be read in conjunction with the Agreement and Plan of
Reorganization and all the terms and provisions contained herein, shall
supersede those terms and provisions of the Agreement and Plan of
Reorganization which are not currently stated or are contrary to those terms
and provisions of the Agreement and Plan of Reorganization.
10. Full Force and Effect. This Amendment only affects those
terms and provisions of the Agreement and Plan of Reorganization that are not
currently stated or are contrary to this Amendment, and the balance of the
Agreement and Plan of Reorganization shall remain in full force and effect.
11. Binding Agreement. This Amendment shall be binding upon the
parties hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns. The parties hereto shall
not assign their respective rights nor delegate their respective obligations
hereunder to any other party without the prior written consent of all other
parties hereto.
12. Counterparts. This Amendment may be executed simultaneously
in two or more counterparts, each of which shall be
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deemed an original, but all of which together shall constitute one and the same
instrument.
13. Facsimile Signature. This Amendment may be executed and
accepted by facsimile signature and such signature shall be in the same force
and effect as an original signature.
14. Governing Law. This Amendment shall be governed by the laws
of the State of Florida.
IN WITNESS WHEREOF, intending to be legally bound hereby the parties
hereto have caused this Amendment to be executed by their duly authorized
officers on the date first appearing above.
Attest: SECTOR ASSOCIATES, LTD.
/s/ Xxxxx Xxxxx By: /s/ Xxxxxx Xxxxx
-------------------------- -----------------------
Attest: VIRAGEN (SCOTLAND) LIMITED
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------- -----------------------
Managing Director
Attest: VIRAGEN, INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxx
--------------------------- ------------------------
AGREED AND ACKNOWLEDGED:
Attest: FAC ENTERPRISES, INC.
By:
-------------------------- -------------------------
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EXHIBIT A
SECURED PROMISSORY NOTE
November 8, 1995 $500,000.00
FOR VALUE RECEIVED, the undersigned, VIRAGEN (SCOTLAND) LIMITED
("Maker"), a Scottish private limited company, hereby promises to pay to the
order of SECTOR ASSOCIATES, LTD. ("Payee"), a Delaware corporation, the
principal sum of Five Hundred Thousand Dollar ($500,000.00) with interest on
the unpaid principal amount at the rate of 4% per annum and on any overdue
payment of principal or interest at the rate of 1% per month (12% per annum),
and with the principal balance and all accrued interest being due and payable
on May 7, 1996, all as hereinafter provided. This Note shall be subject to the
terms and conditions of an Agreement and Plan of Reorganization dated as of
September 20, 1995, as Amended, between Maker, Payee and Viragen, Inc. (the
"Agreement and Plan of Reorganization"), particularly as it relates to the
satisfaction of this Note upon the Closing of the Agreement and Plan or
Reorganization.
1. Payments of Interest and Principal.
(a) Interest. Maker shall pay interest to Payee on the
unpaid outstanding principal balance owed to Payee hereunder at the rate of
four percent (4%) per annum to be paid at the time of payment of the principal
as herein provided.
(b) Principal. Maker shall have no duty or obligation to
pay any portion of the outstanding principal owed hereunder, except as
hereinafter provided, until May 7, 1996. On May 7, 1996, all accrued interest
and outstanding principal shall be due and payable, and shall be paid, to
Payee.
(c) Payments. All payments made hereunder shall be
applied as made first to the payment of interest then due, and the balance of
said payment shall be applied to the payment of the principal sum.
2. Place of Payment. So long as Payee shall hold this Note, all
payments of principal and interest shall be made at the address of Maker as
specified herein upon presentment of this Note.
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3. Prepayment. From and after the date hereof, Maker shall have
the option to prepay any portion or all of the remaining principal balance of
this Note without penalty or premium. All optional prepayments of principal
made pursuant to this Note shall be accompanied by the payment of all accrued
interest on such principal through the date of payment.
4. Security Interest.
(a) Security Interest. As collateral security for the
payment of this Note, Maker hereby pledges, transfers, assigns, sets over and
grants to Payee a first priority security interest in the Collateral (as
hereinafter defined) wherever located.
(b) Continuation of Security Interest. The security
interest granted in this Agreement shall continue in full force and effect
until the payment in full of this Note.
(c) Collateral. The term "Collateral" shall inventory,
shares of capital stock and refer to 3.77 shares of Common Stock of Maker,
including all replacements, modifications, alterations, additions,
substitutions and replacements therefore and all proceeds and products of the
foregoing now owned or hereafter acquired by Maker. The Collateral shall be
provided as security pursuant to a Pledge and Escrow Agreement entered into
simultaneously herewith.
(d) Further Assurance. Maker shall take such steps and
execute and deliver such financing statements and other documents relating to
the creation, validity or perfection of the security interests provided for
herein.
(e) Representations and Warranties. Maker hereby
represents and warrants that Maker has due authorization to issue the
Collateral free and clear of any and all liens, encumbrances or other security
interests whatsoever.
(f) Covenants of Maker. Until payment in full of the
Note, Maker hereby covenants and agrees as follows:
(i) Observe Covenants, etc. Maker shall observe,
perform and comply with the covenants, terms and conditions of this
Note.
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(ii) Payment of Proceeds. After the occurrence of
an "Event of Default," as hereinafter defined, and for so long as such
default is continuing, Maker shall forthwith upon receipt of any
proceeds of Collateral, pay such proceeds over for the benefit of
Payee, and such proceeds shall thereupon be used to the full extent
necessary to satisfy Maker's obligations to Payee.
(iii) Other Liens. Maker shall not incur, create
or permit to exist any mortgage, assignment, pledge, hypothecation,
security interest, lien or other encumbrance on any of the Collateral.
(g) Default. The occurrence of any of the following
shall constitute an event of default ("Event of Default"):
(i) Failure to Pay. Maker fails to pay, when
due, any of the obligations provided for in this Note at their due
date or under any other note or obligations of Maker to the Payee.
(ii) Denominated Events. The occurrence of any
event expressly denominated as an Event of Default in this Note.
(iii) Failure to Perform. Maker fails to perform
or observe any material covenant, term or condition of this Note, or
any other note or obligation issued or owing in respect to Payee and
to be performed or observed by Maker, and such failure continues
unremedied for a period of ten (10) days after written or facsimile
notice from Payee to Maker of such failure.
(iv) Petition By or Against Maker. There is filed
by or against Maker any petition or complaint with respect to its own
financial condition under any state or federal bankruptcy law or any
amendment thereto (including without limitation a petition or
reorganization, arrangement or extension of debts) or under any other
similar or insolvency laws providing for the relief of debtors; or
(v) Appointment of Receiver. A receiver,
trustee, conservator or liquidator is appointed for Maker, or for all
or a substantial part of its assets; or Maker shall be
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adjudicated bankrupt or in need of any relief provided to debtors by
any court.
(h) Remedies.
(i) Acceleration, Proceed Against Collateral.
Upon the occurrence of an Event of Default and for so long as such
default is continuing:
(1) The total amount of (i) of this Note
and all other sums owing to Payee which are (A) then due and
unpaid or (B) thereafter to become due and payable; and (ii)
interest on the foregoing sums, at the rate of one percent
(1%) per month from said occurrence until paid in full (the
"Default Amount") shall, at the option of Payee, become
immediately due and payable without notice or demand;
(2) The proceeds of the Collateral shall
be applied. First, to the payment of all reasonable fees and
expenses incurred by Payee as a result of such Event of
Default, including without limitation any legal fees and
expenses incurred in connection therewith; Second to pay the
Default Amount to the extent not previously paid by Maker; and
Third to pay any excess remaining thereafter to Maker;
(3) In lieu of any such sale, Payee may
retain the Collateral in full satisfaction of Maker's
obligations under this Note; and
(4) Payee may exercise any of the other
remedies provided under applicable laws.
(ii) Cumulative Remedies; Waivers. No remedy
referred to herein is intended to be exclusive, but each shall be
cumulative and in addition to any other remedy referred to above or
otherwise available to Payee at law or in equity. No express or
implied waiver by Payee of any default or Event of Default hereunder
shall in any way be, or be construed to be, a waiver of any future or
subsequent default or Event of Default. The failure or delay of Payee
in exercising any rights granted it hereunder under any occurrence of
any of the contingencies set forth herein shall not constitute a
waiver of any such right upon the continuation or recurrence of any
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such contingencies or similar contingencies, and any single or partial
exercise of any particular right by Payee shall not exhaust the same
or constitute a waiver of any other right provided herein.
(iii) Costs and Expenses. Maker shall be liable
for all costs, charges and expenses incurred by Payee by reason of the
occurrence of any Event of Default or the exercise of Payee's remedies
with respect thereto.
(iv) No Marshalling. Payee shall be under no
obligation to proceed against any or all of the collateral before
proceeding directly against Maker. Payee shall be under no obligation
whatsoever to proceed first against any of the collateral before
proceeding against any other of the Collateral. It is expressly
understood and agreed that all of the collateral stands as equal
security for all obligations described above, and that Payee shall
have the right to proceed against any or all of the collateral in any
order, or simultaneously, as in its sole discretion it shall
determine. It is further understood and agreed that Payee shall have
the right, as it, in its sole discretion, shall determine, to retain,
sell or dispose of any or all of the Collateral in any order or
simultaneously.
(v) Other Remedies. The remedies granted to
Payee herein upon an Event of Default are not restrictive of any and
all other rights and remedies of Payee provided for by this Agreement,
any of the relevant documents and applicable law.
5. Contribution to Capital Upon Closing of Agreement and Plan of
Reorganization.
Upon closing of the Agreement and Plan of Reorganization, the
principal amount of this Note together with related interest shall be deemed
contributed to the capital of Sector Associates, Ltd., the payee of this Note,
and this Note shall be deemed satisfied at that time.
Miscellaneous
(a) Waivers. No waiver of any term or condition of this
Note shall be construed to be a waiver of any succeeding breach of the same
term or condition. No failure or delay of Payee
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to exercise any power hereunder, or it insists upon strict compliance by Maker
of any obligations hereunder, and no custom or other practice at variance with
the terms hereof shall constitute a waiver of the right of Payee to demand
exact compliance with such terms.
(b) Invalid Terms. In the event any provision contained
in this Note shall, for any reason, be held invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect any other provision of this Note, and this Note shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein.
(c) Successors. This Note shall be binding upon Maker,
its legal representatives, successors and assigns, and insure to the benefit of
Payee, its legal representatives, successors and assigns.
(d) Controlling Law. This Note shall be read, construed
and governed in all respects in accordance with the laws of the State of
Delaware.
(e) Amendments. This Note may be amended only by an
instrument in writing executed by the party against which enforcement of the
amendment is sought.
(f) Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be
sufficiently given if addressed to the Maker at 0000 X. 00xx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000, and to the Payee at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxx,
Xxxxxxxxxxxx 00000, posted in the U.S. Mail by certified or registered mail,
return receipt requested or by overnight mail, including appropriate receipts.
Any party may change said address by giving the other party hereto notice of
such change of address. Notice given as hereinabove prescribed shall be deemed
given on the date of its deposit in the U.S. Mail or with the overnight
delivery service.
(g) Headings. All section and subsection headings
herein, wherever they appear, are for convenience only and shall not affect the
construction of any terms herein.
IN WITNESS WHEREOF, the undersigned has caused this Note to be
executed by its duly authorized officer and its seal affixed hereto, as of the
day and year first above written.
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VIRAGEN (SCOTLAND) LIMITED
By: /s/Xxxxxx X. Xxxxxx
-------------------
Managing Director
ATTEST:
----------------------------
Secretary
Guaranty
In consideration of the acceptance by Payee of the above Note and for
other good and valuable consideration, the undersigned hereby unconditionally
guarantees to Payee the payment of the Note together with all reasonable
attorneys' fees, costs and expenses of collection incurred by Payee. The
guarantee of payment of such interest on the Note shall not exceed the maximum
amount prescribed by law. The undersigned guarantor consents that at any time,
and without notice to the undersigned, payment of any sums due on the Note may
be extended, or the Note may be renewed, in whole or in part, without affecting
the liability of the undersigned. The undersigned hereby waives notice of
acceptance, presentment, demand for payment, protest or notice of dishonor or
non-payment of the Note.
VIRAGEN, INC.
By:/s/Xxxxxx Xxxxx
---------------
President
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EXHIBIT B
PLEDGE AND ESCROW AGREEMENT
THIS PLEDGE AND ESCROW AGREEMENT made and entered into as of this 8th
day of November, 1995, by and between VIRAGEN (SCOTLAND), LIMITED ("Viragen
(Scotland)"), VIRAGEN, INC. ("Viragen") (Viragen (Scotland) and Viragen being
collectively referred to as "Pledgor"), SECTOR ASSOCIATES, LTD. (referred to as
"Pledgee"), and ATLAS, XXXXXXXX, TROP & BORKSON, P.A. (hereinafter referred to
as "Escrow Agent").
W I T N E S S E T H:
WHEREAS, Viragen (Scotland) has heretofore executed a Promissory Note
(the "Note") in favor of Pledgee and Viragen has guaranteed the Note, a copy of
which is attached hereto as Exhibit "A;"
WHEREAS, to secure the payment of said Note, Pledgor has agreed to
grant to Pledgee a security interest in 3.77 shares of the Common Stock of the
Pledgor (the "Pledged Shares");
WHEREAS, the Pledgor and the Pledgee have requested the Escrow Agent
to act as escrow agent for the Pledged Shares in accordance with the terms of
this Agreement;
NOW, THEREFORE, in consideration of the premises, covenants and
agreements hereinafter set forth, the parties mutually agree as follows:
1. SECURITY INTEREST. Pledgor hereby grants to Pledgee a first
lien security interest, superior to all other liens and encumbrances, in and to
the Pledged Shares. Copies of Stock Powers representing such Pledged Shares,
endorsed in blank, and copies of the Certificates representing such Pledged
Shares, are attached as Exhibit "B." The Pledged Shares and Stock Powers shall
be held by Escrow Agent as collateral for the indebtedness owed by the Company
to Pledgee pursuant to the Note.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Pledgor hereby
represents, warrants and covenants that, except for the security interest
granted hereunder, the Pledged Shares are free and clear of all liens, charges,
encumbrances and security interest of every kind and nature, and that Pledgor
will make no assignment, pledge, mortgage, hypothecation or transfer of the
Pledged Shares;
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that Pledgor has good right and legal authority to pledge the Pledged Shares in
the manner hereby done or contemplated and will defend Pledgor's title to such
Pledged Shares against the claim of all person whomsoever; that the pledge of
the Pledged Shares is effective to vest in Pledgee the rights of the Pledgee in
such Pledged Shares set forth herein; and that the Pledged Shares have been
duly and validly authorized and issued and are fully paid and non-assessable.
3. ADJUSTMENTS. In the event that, during the term of this
Agreement, any stock dividend shall be declared on or with respect to any of
the Pledged Shares, or there is a reclassification, readjustment, merger,
consolidation, stock split or any other change is made in the capital structure
of the Pledgor, all new, substituted and additional shares or other securities
issued by reason of such a change shall be delivered and held by Escrow Agent
under the terms of this Agreement in the same manner as the Pledged Shares.
4. ESCROW. Pledgor shall deposit with Escrow Agent the Pledged
Shares, along with the aforesaid Stock Powers (all of which items shall
hereinafter be referred to as the "Pledged Documents," including all stock
assignments), to be held in escrow for future delivery as follows:
(a) Escrow Agent shall deliver the Pledged Documents to
Pledgee within ten (10) days after receiving an affidavit signed by
Pledgee stating that:
(i) Pledgor is in default under the Note and all
periods of time within which to cure such default have
expired;
(ii) Pledgee is accelerating the entire unpaid
balance due under the Note; and
(iii) Pledgee demands delivery of the Pledged
Documents.
Pledgee shall simultaneously furnish Pledgor with a copy of
said affidavit. Upon such delivery of the Pledged Documents, Escrow Agent's
duties hereunder shall terminate.
(b) In the event Escrow Agent has not delivered the
Pledged Documents pursuant to subparagraph (a) above, then
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Escrow Agent shall deliver the Pledged Documents to Pledgor within ten
(10) days after receipt of the original of the Note marked "satisfied
in full," accompanied by instructions from Pledgee indicating that
said Note has been satisfied in full and the Pledged Documents shall
be delivered to Pledgor at the address specified therein. Upon such
delivery of the Pledged Documents, Escrow Agent's duties hereunder
shall terminate. Pledgee agrees to deliver the Note to Pledgor marked
"satisfied in full," immediately upon satisfaction thereof.
5. DISPUTE. It is specifically understood and agreed that should
any dispute arise between the parties hereto concerning this Agreement or its
construction, or for any other reason, the Escrow Agent in its sole discretion,
shall have the right to deposit the Pledged Documents held by it pursuant to
this Escrow Agreement and Escrow Agent, with the Clerk of the Circuit Court of
Broward County, Florida, and notify all parties concerned, and whereupon, all
liability hereunder on the part of the Escrow Agent shall fully cease except to
the extent of accounting for the Pledged Documents and any other documents that
may have been delivered to it.
6. INTERPLEADER. In the event the Escrow Agent places the
Pledged Documents that have actually been delivered to Escrow Agent in the
registry of the Circuit Court in and for Broward County, Florida, and files an
action of interpleader naming Pledgor and Pledgee, and other necessary parties,
Escrow Agent shall be released and relieved from any and all further
obligations and liabilities hereunder or in connection herewith. Pledgor and
Pledgee hereby , jointly and severally, indemnify and hold Escrow Agent
harmless from any damages or losses arising hereunder or in connection
herewith, including, but not limited to, all costs and expenses incurred by
Escrow Agent in connection with the filing of such action and reasonable
attorneys' fees and costs for Escrow Agent's attorney(s) through and including
all appeals.
7. NATURE OF ESCROW AGENT'S DUTIES. It is agreed that the duties
of Escrow Agent are only such as are herein specifically provided and are
purely ministerial in nature. Hence, Escrow Agent shall not be held liable for
any matter or thing except for Escrow Agent's gross negligence or willful
misconduct. Pledgor and Pledgee shall at all times hereafter, jointly and
severally, indemnify Escrow Agent and hold Escrow Agent harmless from any claim
asserted against it and from any damages, costs, expenses, liability and/or
losses sustained by Escrow Agent (except for Escrow Agent's gross negligence or
willful misconduct), including,
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but not limited to, reasonable attorneys' fees and costs for Escrow Agent's
attorneys(s) through and including all appeals and whether or not litigation is
instituted. The obligations and duties of the Escrow Agent are confined to
those specifically enumerated in this Agreement. The Escrow Agent shall not be
subject to nor be under any obligation to ascertain or construe the terms and
conditions of any obligation to ascertain or construe the terms and conditions
of any instrument whether or not now or hereafter deposited with or delivered
to the Escrow Agent be obliged to inquire as to the form, execution and
sufficiency or validity or any instruments, or to inquire as to the identity,
authority or rights of any person executing or delivering the same.
8. RETENTION OF LEGAL COUNSEL. It is agreed that Escrow Agent
shall have full discretion as to whom it may retain as legal counsel to protect
its interests (including retaining itself as a law firm) and same shall not
affect or in any way prejudice or limit Escrow Agent's entitlement to
reasonable attorneys' fees for the services of such attorneys as set forth in
this Escrow Agreement.
9. VENUE. It is recognized that this Escrow Agreement shall be
deemed to have been entered into by the parties hereto in Broward County,
Florida, and that the property which is the subject of this Escrow Agreement is
located in Broward County, Florida. Therefore, it is agreed that venue with
respect to any matter arising herefrom shall only lie in Broward County,
Florida, except to the extent, and only to the extent, that this provision with
respect to venue is deemed in contravention of any applicable law.
10. AMBIGUITY; CONFLICTING INSTRUCTIONS. In the event the Escrow
Agent shall be uncertain as to its duties or rights hereunder or shall receive
instructions, claims or demands from any of the parties hereto or from third
persons with respect to the Pledged Documents held hereunder, which in its sole
opinion, care in conflict with any provision of this Agreement, it shall be
entitled to refrain from taking any action until it shall be directed otherwise
in writing by all the parties hereto and said third persons, if any, or by a
final order or judgment of a court of competent jurisdiction.
11. NOTICES. Notices and deliveries under this Agreement shall be
given or made by certified mail, return receipt requested, as follows:
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PLEDGOR:
VIRAGEN (SCOTLAND), LIMITED
VIRAGEN, INC.
0000 X. 00xx Xxxxxx
Xxxxxxx, XX 00000
PLEDGEE:
SECTOR ASSOCIATES LTD.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
ESCROW AGENT:
ATLAS, XXXXXXXX, TROP & BORKSON, P.A.
000 X. Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
or such other address as any of the above-mentioned parties shall have
designated in writing to the other parties.
12. TERMINATION. All parties agree that the services of the
Escrow Agent may be terminated by the Escrow Agent or by the joinder of both
Pledgee and Pledgor upon ten (10) days written notice to the other. In the
event of such termination, the Pledgee and Pledgor shall mutually agree to a
Successor Escrow Agent. Failing such mutual agreement, application shall be
made to the appropriate court of Broward County, Florida, for the appointment
of a Successor Escrow Agent. Upon such appointment, ATLAS, XXXXXXXX, TROP &
BORKSON, P.A. shall deliver all escrow documents to such successor for
continuation of the escrow in accordance with the terms of this Agreement.
13. MISCELLANEOUS.
(a) Benefit of Agreement. This Agreement shall be
binding upon the parties hereto and their successors and assigns.
(b) Modification. The Escrow Agent shall not be bound by
any modification, cancellation or rescission of this Agreement unless in
writing and signed by the parties hereto. In no event, however, shall any
modification of this Agreement, which shall affect the rights or duties of the
Escrow Agent, be binding upon Escrow Agent unless it shall have given its prior
written consent.
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(c) Attorneys' Fees. In the event Pledgor or Pledgee
shall seek to enforce this Agreement, whether or not through litigation, the
prevailing party shall be entitled to receive reasonable attorneys' fees and
all costs incurred in connection with such enforcement, including fees and
costs of appeal.
(d) Further Cooperation. From and after the date of this
Agreement, each of the parties hereto agrees to execute whatever additional
documentation or instruments as are necessary to carry out the intent and
purposes of this Agreement.
(e) Waiver. No indulgences extended by any party hereto
or any other party shall be construed as a waiver of any breach on the part of
such other party, nor shall any waiver of one breach be construed as a wavier
of any rights or remedies with respect to any subsequent breach.
(f) Construction. It is the intention of the parties
that the laws of the State of Florida shall govern the validity of this
Agreement, the construction of its terms, and the interpretation of the rights
and duties of the parties. The parties agree and acknowledge that each party
has reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting parties shall not be employed in the interpretation of this Agreement
or any amendment or exhibits thereto.
(g) Truth of Recitals. The recitals and statements
contained on page 1 of this Agreement are true and correct and are hereby
incorporated into this Agreement.
(h) Entire Agreement. This Agreement sets forth the
entire agreement and understanding of the parties on the subject matter hereof
and supersedes all prior agreements and understandings relating thereto.
(i) Severability. The invalidity or unenforceability of
any particular provision of this Agreement shall not affect the other
provisions hereof and this Agreement shall be construed in all respects as if
such invalid or unenforceable provision was omitted.
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(j) Headings. The headings used in this Agreement are
used for reference purposes only and are not to be deemed controlling with
respect to the contents thereof.
(k) Counterparts. This Agreement may be executed in any
number of counterparts, and each such counterpart shall for all purposes be
deemed to be an original.
(l) Incorporation by Reference. The Exhibits referred to
in this Agreement are hereby incorporated into this Agreement by reference.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
PLEDGOR:
VIRAGEN (SCOTLAND), LIMITED
By: /s/Xxxxxx X. Xxxxxx
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Managing Director
VIRAGEN, INC.
By: /s/Xxxxxx Xxxxx, President
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Managing Director
PLEDGEE:
SECTOR ASSOCIATES, LTD.
By: /s/Xxxxxx Xxxxx
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ESCROW AGENT:
ATLAS,XXXXXXXX,TROP & BORKSON, P.A.
By:
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