ASSET PURCHASE AGREEMENT BETWEEN ALTAREX CORP. AND ALTAREX MEDICAL CORP.
E-400
BETWEEN
ALTAREX
CORP.
AND
ALTAREX
MEDICAL CORP.
TABLE
OF CONTENTS
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SECTION
1 - DEFINITIONS AND INTERPRETATION
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2
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Definitions
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2
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Interpretation
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4
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Schedules
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6
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SECTION
2 PURCHASE AND SALE OF PURCHASED ASSETS
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7
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SECTION
3 PURCHASE PRICE
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8
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SECTION
4 SUBSEQUENT TRANSFERS, CONSENTS AND APPROVALS
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9
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SECTION
5 ASSUMED LIABILITIES
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11
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SECTION
6 REPRESENTATIONS AND WARRANTIES OF THE VENDOR
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11
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SECTION
7 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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11
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SECTION
8 COVENANTS
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12
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SECTION
9 SURVIVAL OF COVENANTS, REPRESENTATIONS AND
WARRANTIES
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13
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SECTION
10 TRANSFER OF POSSESSION
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13
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SECTION
11 SHAREHOLDER MATTERS
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14
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SECTION
12 - GENERAL
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14
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Headings
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14
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Severability
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14
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Enforcement
of Remedies
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14
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Non-Waiver
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15
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Written
Waiver
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15
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Further
Assurances
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15
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Notices
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15
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Alteration
of this Agreement
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16
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Governing
Law
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16
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Time
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17
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Entire
Agreement
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17
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Assignment
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17
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Binding
Nature and Enurement
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17
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Execution
in Counterpart
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18
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This
Agreement
made as of the 31st
day of
December 2003.
BETWEEN:
ALTAREX
CORP.,
(the
“Vendor”)
OF
THE
FIRST PART
and
ALTAREX
MEDICAL CORP.,
(the
“Purchaser”)
OF
THE
SECOND PART
WHEREAS:
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A.
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the
Vendor is engaged in research, development and commercialization
of
various cancer treatments and other
biotechnology;
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B.
|
Nova
Bancorp Investments Ltd. and the Vendor entered into a letter of
intent
dated and accepted December 1, 2003, which contemplated the Vendor
undertaking an arrangement pursuant to Section 193 of the Business
Corporations Act (Alberta)
(the “Arrangement”);
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C.
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the
Arrangement contemplates in part that the Vendor will sell or have
sold
all of its assets and property to the Purchaser;
and
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D.
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the
Vendor desires to sell to Purchaser, and Purchaser desires to purchase
from Vendor, certain of Vendor’s assets and
property.
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WITNESSETH
that in
consideration of the foregoing premises and the mutual promises and covenants
herein contained and the payment of the sum of One ($1.00) Dollar now exchanged
by and between each of the parties hereto and for other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged),
the
parties hereto covenant and agree, each with the other, as follows:
SECTION
1
DEFINITIONS
AND INTERPRETATION
Definitions
1.1 In
this
agreement, including the Schedules annexed hereto, the following words or
expressions shall have the following meanings, namely:
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1.1.1
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“Act”
means the Business
Corporations Act
(Alberta) as in effect on the date
hereof;
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1.1.2
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“Affiliate”
has the meaning given to that term in the
Act;
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1.1.3
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“AltaRex
International” means AltaRex International GmbH a wholly owned subsidiary
of the Vendor incorporated under the laws of Kanton Basel-Stadt,
Switzerland;
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1.1.4
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“AltaRex
US” means AltaRex US, Corp. a wholly owned subsidiary of the Vendor
incorporated under the laws of Delaware with an office in Waltham,
Massachusetts;
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1.1.5
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“Arrangement”
means the statutory plan of arrangement pursuant to Section 193 of
the Act
among NBC, the Vendor and the Purchaser which is to be ordered in
accordance with the Letter of Intent between the Vendor and NBC dated
and
accepted December 1, 2003;
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1.1.6
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“Arrangement
Closing” means the date on which Articles of Arrangement are filed with
the Alberta Corporate Registry in respect of the Vendor and the
Arrangement or such other date when the Arrangement becomes
effective;
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1.1.7
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“Associate”
has the meaning given to that term in the
Act;
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1.1.8
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“Assumed
Contracts” means all Contracts to which the Vendor is a party including
but not limited to those described in Schedule
“1”;
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1.1.9
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“Assumed
Liabilities” means all of the Vendor’s liabilities and obligations
contingent or otherwise and whether arising, accruing or existing
prior
to, on or after the date of this Agreement, with the exception of
the
Retained Liabilities;
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1.1.10
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“Business”
means the business of research, development and commercialization
of
various cancer treatments and other biotechnology which is currently
being
carried on by the Vendor;
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2
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1.1.11
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“Business
Day” means any day other than a Saturday, Sunday or a statutory holiday
in
Alberta;
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1.1.12
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“Closing
Date” means 31st
day of December 2003, or such other date as may be agreed to by the
Vendor
and the Purchaser;
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1.1.13
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“Effective
Time” means 12:01 am. (Mountain Standard Time) on the Closing
Date;
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1.1.14
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“Contract”
means any agreement, indenture, contract, lease, deed of trust, license,
option, instrument or other commitment, whether written or oral including
but not limited to those described in Schedule
“1”;
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1.1.15
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“Employee
Plans” means each retirement, pension, bonus, stock purchase, profit
sharing, stock option, deferred compensation, severance or termination
pay, insurance, medical, hospital, dental, vision care, drug, sick
leave,
disability, salary continuation, legal benefits, unemployment benefits,
vacation, incentive or other compensation plan or arrangement or
other
employee benefit that is maintained, or otherwise contributed to
or
required to be contributed to, by the Vendor relating to the Business
or
the Purchased Assets for the benefit of the
Employees;
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1.1.16
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“Employees”
means all individuals who are full-time, part-time or casual employees
or
individuals engaged on contract to provide employment services or
sales or
other agents or representatives of the Vendor employed or engaged
in the
Business as at the Closing Date;
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1.1.17
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“Excluded
Assets” means all those assets described in Schedule
“2”;
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1.1.18
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“Goodwill”
means the goodwill of the Business including the right of the Purchaser,
as and from the Closing Date, to represent itself as carrying on
the
Business in continuation of and in succession to the Vendor and the
right
to use any words indicating that the said business is so carried
on;
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1.1.19
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“GST
Legislation” has the meaning set out in subsection
3.4;
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1.1.20
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“Income
Tax Act” means the Income
Tax Act
(Canada) R.S.C. 1985, c. 1, as in effect on the date
hereof;
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1.1.21
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“Indemnity
Agreement” means the agreement to be entered into between the Vendor and
the Purchaser pursuant to the Letter of Intent whereby the Purchaser
shall
provide a full indemnity to the Vendor for all liabilities related
to the
Business;
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3
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1.1.22
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“Intellectual
Property” means all trade or brand names, business names, trade xxxx
registrations and applications, service marks, service xxxx registrations
and applications, logos and other proprietary designs, copyrights,
copyright registrations and applications, patents, patent registrations
and applications and other patent rights (including any patents issued
on
such applications or rights), trade secrets, proprietary manufacturing
information and know-how, equipment and parts lists and descriptions,
instruction manuals, inventions, inventors’ notes, research data,
unpatented blue prints, drawings and designs, formulae, processes,
technology and other intellectual property, together with all rights
of
every kind and nature whatsoever under licenses, registered user
agreements, technology transfer agreements and other agreements or
instruments relating to any of the foregoing and all other intangible
assets including telephone numbers, facsimile numbers, websites,
domain
names and software including but not limited to those described in
Schedule “4”;
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1.1.23
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“Inventory”
means the inventory of materials and supplies owned by the Vendor
for use
in the conduct of the Business wheresoever
situate;
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1.1.24
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“Letter
of Intent” means the letter of intent between NBC and the Vendor dated and
accepted December 1, 2003;
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1.1.25
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“Losses”
means, in respect to any matter, all claims, demands, proceedings,
losses
damages, liabilities, deficiencies, costs and expenses (including
all
legal and other professional fees and disbursements on a solicitor
and
client basis), interest, penalties and amounts paid in settlement
arising
directly or indirectly as a consequence of such
matter;
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1.1.26
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“NBC”
means Nova Bancorp Investments
Ltd.;
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1.1.27
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“Purchase
Price” has the meaning set out in section 3
below;
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1.1.28
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“Purchased
Assets” means all of the property and assets beneficially owned by the
Vendor at the Effective Time whether real or personal, tangible or
intangible of every kind and description and wheresoever situated
but does
not include any of the Excluded
Assets;
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1.1.29
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“Purchaser”
means AltaRex Medical Corp., the party of the second
part;
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1.1.30
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“Retained
Liabilities” means all those liabilities described in Schedule “7”;
and
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1.1.31
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“Vendor”
means AltaRex Corp., the party of the first
part.
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4
Interpretation
1.2 In
this
Agreement and in any amendments thereto, except as otherwise expressly provided,
or unless the context otherwise requires,
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1.2.1
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“this
Agreement” means this Agreement (and any schedules hereto) as it may from
time to time be supplemented or amended by one or more agreements
entered
into pursuant to the applicable provisions
hereof;
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1.2.2
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this
Agreement is divided into numbered sections and the subdivisions
of each
such section are called, in descending order, “subsections”, “paragraphs”,
“subparagraphs”, “clauses”, and “sub-clauses”, and all references in this
Agreement to particular subdivisions are to the designated subdivisions
of
this Agreement;
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1.2.3
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the
words “herein” and “hereunder” and words of similar import refer to this
Agreement as a whole and not to any particular section or other
subdivision;
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1.2.4
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the
headings and subheadings inserted in this Agreement are designed
for
convenience only and do not form a part of this Agreement nor are
they
intended to interpret, define, or limit the scope, extent, or intent
of
this Agreement or any provision
hereof;
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1.2.5
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the
word “person” means and includes any individual, corporation, partnership,
firm, joint venture, syndicate, association, trust, government,
governmental agency or board or commission or authority, and other
forms
of entity or organization;
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1.2.6
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any
reference to a person shall include and shall be deemed to be a reference
to that person’s successor;
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1.2.7
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representations,
warranties, covenants or obligations, when of more than one person,
shall
be deemed to be given by each such person on a joint and several
basis;
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1.2.8
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the
words “ordinary course” or “normal course” when used in relation to the
conduct by the Vendor of the Business, means any transaction which
constitutes an ordinary day-to-day business activity of the Vendor
conducted in a commercially reasonable and businesslike manner, having
no
unusual or special features, and being such as a corporation or other
entity of similar nature and size and engaged in a similar business
might
reasonably be expected to carry out from time to
time;
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1.2.9
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words
and phrases like “including”, “specifically” and “particularly” when
following any general statement, term or matter, shall not be construed
to
limit such general statement, term or matter to the specific items
or
matters set forth immediately following such word or to similar items
or
matters, whether or not non-limiting language (such as “without
limitation” or “but not limited to” or words of similar import) is used
with reference thereto but rather shall be deemed to refer to all
other
items or matters that could reasonably fall within the broadest possible
scope of such general statement, term or
matter;
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5
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1.2.10
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all
accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with generally accepted accounting
principles;
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1.2.11
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all
references to currency herein are deemed to mean Canadian
currency;
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1.2.12
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any
reference to a statute shall include and shall be deemed to be a
reference
to such statute and to the regulations made pursuant thereto, with
all
amendments made thereto and in force from time to time, and to any
statute
or regulation that may be passed which has the effect of supplementing
or
superseding the statute so referred to or the regulations made pursuant
thereto;
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1.2.13
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any
reference to an entity shall include and be deemed to be a reference
to an
entity that is a successor to such
entity;
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1.2.14
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any
reference to “approval”, “authorization” or “consent” of any person,
including any party or parties hereto, means the written approval,
written
authorization or written consent of such person;
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1.2.15
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persons
shall be deemed not to be dealing “at arm’s length” with one another if
they would not be dealing at arm’s length with one another for the
purposes of the Income Tax Act in effect at the date of this Agreement;
and
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1.2.16
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words
importing the masculine gender include the feminine or neuter gender
and
words in the singular include the plural, and vice versa and words
importing individuals shall include firms and corporations, and vice
versa.
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Schedules
1.3 The
following schedules are attached hereto, incorporated herein by reference and
shall be deemed to form a part hereof:
| 1.3.1 |
Schedule
“1”-
Material
Contracts
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6
| 1.3.2 |
Schedule
“2”-
Excluded
Assets
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| 1.3.3 |
Schedule
“3”-
Licenses
and Permits
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| 1.3.4 |
Schedule
“4”-
Intellectual
Property
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| 1.3.5 |
Schedule
“5”-
Legal
and Regulatory Proceedings
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| 1.3.6 |
Schedule
“6”-
Employee
Matters
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| 1.3.7 |
Schedule
“7”-
Retained
Liabilities
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| 1.3.8 |
Schedule
“8”-
Allocation
of the Purchase Price
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SECTION
2
PURCHASE
AND SALE OF PURCHASED ASSETS
2.1 Upon
and
subject to the provisions of this Agreement, the Vendor agrees to sell, assign
and transfer to the Purchaser and the Purchaser agrees to purchase and take
by
way of assignment from the Vendor, effective as at the Effective Time, all
of
the Purchased Assets including, without limitation, the following:
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2.1.1
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any
shares and indebtedness of AltaRex US, including, without limitation,
the
approximately $1.7 Million (Canadian funds) inter-company account
owed by
AltaRex US to the Vendor;
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2.1.2
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any
and all rights whatsoever including proceeds from the liquidation
of
AltaRex International;
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2.1.3
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all
accounts receivable;
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2.1.4
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all
prepaid expenses;
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2.1.5
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all
inventory, machinery, tools, equipment, furniture, furnishings, fixtures,
parts, and all other miscellaneous tangible
items;
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2.1.6
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all
computer hardware and software, including all rights under licenses
and
other agreements or instruments relating
thereto;
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2.1.7
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all
rights under leases of personal property, orders or contracts for
the
provision of goods or services (whether as buyer or seller), distribution
and agency agreements, employment, non-compete and other contracts
including but not limited to those set forth on Schedule
“1”;
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2.1.8
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all
Intellectual Property;
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7
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2.1.9
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all
books and records (other than those required by law to be retained
by the
Vendor, copies of which will be made available to the Purchaser),
including those that relate to any of the Purchased Assets, sales
history,
production records, vendor/supplier history, customer information
and
records and any records pertaining to warranty claims, customer returns
and how those matters have been
resolved;
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2.1.10
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all
benefits under all insurance policies in respect of claims based
on
occurrences on or prior to the Closing
Date;
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2.1.11
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the
full benefit of all warranties and warranty rights (express or implied)
against manufacturers or sellers;
and
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2.1.12
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all
Goodwill together with the exclusive right for the Purchaser to represent
itself as carrying on the Business in continuation of and in succession
to
the Vendor and the right to use any words indicating that the said
business is so carried on including the Vendors’ rights to use the name
“AltaRex” or any variation thereof as part of the name or style under
which the Business is carried on by the
Purchaser.
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SECTION
3
PURCHASE
PRICE
Purchase
Price
3.1 The
Purchase Price payable by the Purchaser to the Vendor for the Purchased Assets
shall be the sum of $17,000,000.00 or such other amount as the Vendor and
Purchaser may jointly determine as being the fair market value of the Purchased
Assets at the Effective Time.
3.2 The
Purchase Price for the Purchased Assets shall become due on the Closing Date
and
shall be satisfied by:
|
3.2.1
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The
assumption by the Purchaser at the Effective Time of all the Assumed
Liabilities, and
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3.2.2
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to
the extent that the Purchase Price exceeds the value of the Assumed
Liabilities the balance of the Purchase Price shall be satisfied
by the
Purchaser issuing to the Vendor on the Closing Date 40,000,000 common
shares in the capital of the
Purchaser.
|
8
Allocation
of Purchase Price
3.3 The
allocation of the Purchase Price among the Purchased Assets shall be as set
out
in Schedule “8”.
Subsection
85(1) Election
3.4 The
Vendor and Purchaser acknowledge and agree that the purchase and sale of the
Purchased Assets that constitute “eligible property”, as defined in subsection
85(1.1) of the Income Tax Act, will be carried out in accordance with subsection
85(1) of the Income Tax Act and hereby agree and confirm that they will jointly
elect pursuant to subsection 85(1) of the Income Tax Act in the prescribed
form
and within the time requirement in subsection 85(6) of the Income Tax Act so
that the Vendor’s aggregate proceeds of disposition and the Purchaser’s
aggregate cost of such eligible property shall by the sum of
$17,000,000.00.
Goods
and Services Tax Election
3.5 The
Vendor hereby represents and warrants to the Purchaser that the Vendor is
registered for purposes of Part IX of the Excise
Tax Act,
R.S.C.
1985, c. E-15 (Canada) (the “GST Legislation”).
3.6 The
Vendor and the Purchaser will jointly execute in prescribed form, and the
Purchaser will file within the required time, an election under s. 167(1) of
the
Excise
Tax Act
(Canada)
that no tax be payable pursuant to the GST Legislation with respect to the
purchase and sale of the Purchased Assets hereunder.
3.7 The
Purchaser will be liable to the Vendor for and will indemnify the Vendor against
any tax, interest or penalties assessed against the Vendor as a result of a
determination that the election pursuant to s. 167(1) of the Excise
Tax Act
(Canada)
was not available:
|
3.7.1
|
because
of the Purchaser’s failure to file the requisite election in a timely
fashion; or
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3.7.2
|
for
any other reason whatsoever other than the inaccuracy of any of the
representations and warranties made by the Vendor pursuant to
subsection 3.4.
|
SECTION
4
SUBSEQUENT
TRANSFERS, CONSENTS AND APPROVALS
4.1 The
Vendor shall use commercially reasonable efforts to deliver to the Purchaser
promptly after the date of this Agreement all consents, approvals, assurances,
instruments, deeds, conveyances, assignments or any other documents as
reasonably requested by the Purchaser that are necessary to permit the Vendor
to
validly and effectually convey the Purchased Assets (including registering
all
assignments related to the Intellectual Property and assignment of the Contracts
to the Purchaser) to the Purchaser or to operate the Business, which have not
been obtained as of the date of this Agreement and the Purchaser shall
co-operate with the Vendor for such purposes. If, because such consents,
approvals, assurances, instruments, deeds, conveyances, or assignments have
not
been delivered or for any other reason, the Vendor shall continue to hold any
interest in any of the Purchased Assets after the date of this
Agreement:
9
|
4.1.1
|
the
Vendor shall co-operate with the Purchaser in any reasonable arrangements
designed to provide the benefits of such Purchased Assets to the
Purchaser
including holding any such Purchased Assets in trust for the Purchaser
or
acting as agent for the Purchaser or provide those benefits in any
reasonable manner determined by the
Purchaser;
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4.1.2
|
the
Vendor shall perform all of its obligations under any applicable
contracts
and shall enforce any rights of the Vendor arising from such Purchased
Assets; and
|
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4.1.3
|
The
Vendor shall take all such actions and do, or cause to be done, all
such
things at the request of the Purchaser as shall reasonably be necessary
in
order that the value of such Purchased Assets shall be preserved
and shall
enure to the benefit of the Purchaser, including without restriction,
executing and delivering all necessary assignments and taking such
further
actions as may be required to assign the Intellectual Property and
Contracts.
|
4.2 As
of the
Effective Time the Purchaser shall:
|
4.2.1
|
be
entitled to all of the benefits accruing to the Vendor under the
provisions contained in each of the Assumed
Contracts,
|
|
4.2.2
|
be
bound by all of the obligations imposed on the Vendor under such
provisions, and
|
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4.2.3
|
be
entitled to possession of all the Purchased Assets and any premise
occupied by the Vendor as lessee.
|
4.3 The
Vendor shall execute and deliver to the Purchaser a formal assignment of the
interest of the Vendor in such of the Assumed Contracts as may be designated
by
the Purchaser, acting reasonably.
10
SECTION
5
ASSUMED
LIABILITIES
5.1 On
the
terms and subject to the conditions herein contained, as at the Effective Time
the Purchaser will assume, be liable for, and indemnify the Vendor from and
against, all obligations, commitments and liabilities of and claims against
the
Vendor (whether absolute, accrued or contingent) relating to the Assumed
Liabilities.
SECTION
6
REPRESENTATIONS
AND WARRANTIES
OF
THE VENDOR
6.1 The
Vendor represents and warrants to and covenants and agrees with the Purchaser
as
follows:
|
6.1.1
|
the
Vendor is, a corporation with limited liability duly and properly
incorporated and organized under the laws of Alberta and is a valid
and
subsisting corporation in good standing under such
laws;
|
|
6.1.2
|
the
Vendor is duly qualified and licensed to carry on the
Business;
|
|
6.1.3
|
this
Agreement and each further agreement contemplated by this Agreement
when
executed and delivered by the Vendor and when duly and properly executed
and delivered by each other party thereto will be a valid and binding
Agreement enforceable against the Vendor in accordance with its
terms;
|
|
6.1.4
|
the
Vendor has the requisite power, capacity and authority to enter into
this
Agreement and each further agreement contemplated by this Agreement;
and
|
|
6.1.5
|
the
Vendor is resident in Canada within the meaning of the Income Tax
Act.
|
SECTION
7
REPRESENTATIONS
AND WARRANTIES
OF
THE PURCHASER
7.1 The
Purchaser hereby represents and warrants to the Vendor as follows:
|
7.1.1
|
the
Purchaser is, a corporation with limited liability duly and properly
incorporated and organized under the laws of Alberta and is a valid
and
subsisting corporation in good standing under such
laws;
|
11
|
7.1.2
|
this
Agreement and each further agreement contemplated by this Agreement
when
executed and delivered by the Purchaser and when duly and properly
executed and delivered by each other party thereto will be a valid
and
binding agreement enforceable against the Purchaser in accordance
with its
terms; and
|
|
7.1.3
|
the
Purchaser has the requisite power, capacity and authority to enter
into
this Agreement and each further Agreement contemplated by this
agreement.
|
SECTION
8
COVENANTS
Delivery
of Books and Records
8.1 At
the
Closing Time, there shall be delivered to the Purchaser by the Vendor all the
books and records described in paragraph 2.1.9. The Purchaser agrees that it
will preserve such books and records so delivered to it for a period of three
(3) years from the Closing Date, or for such longer period as is required by
any
applicable law (including any applicable requirements under GST Legislation
or
the Income Tax Act), and will permit the Vendor or its authorized
representatives reasonable access thereto in connection with the affairs of
the
Vendor relating to its matters, but the Purchaser shall not be responsible
or
liable to the Vendor for or as a result of any accidental loss or destruction
of
or damage to any such books or records.
Change
of Name
8.2 The
Vendor agrees that within 60 days from the Arrangement Closing it shall change
its name and the names of any of its Associates or Affiliates that include
the
words “AltaRex” to a name that does not include the words “AltaRex” or any part
thereof or any similar words. The Vendor agrees that from and after the
Arrangement Closing neither the Vendor nor any of its Associates or Affiliates
will use the name “AltaRex” or any part thereof or any similar words in its
business.
Delivery
of Conveyancing Documents
8.3 The
Vendor shall deliver to the Purchaser all necessary deeds, conveyances, bills
of
sale, assurances, transfers, assignments and any other documentation necessary
or reasonably required to transfer the Purchased Assets to the Purchaser with
a
good and marketable title.
12
Employee
Matters
8.4 The
Purchaser shall offer employment to each Employee of the Vendor such offer
to
contain the same terms of employment as those in effect as between the Vendor
and such Employee.
8.5 Without
in any way limiting Section 5 hereto, the Purchaser will assume any liability
for accrued benefits under any of the Employee Plans. The Purchaser agrees
that
it will continue the existing Employee Plans or establish replacement plans
(the
“Replacement Plans”) for the Employees in respect of their employment by the
Purchaser from and after the Closing Date. For the purpose of determining the
eligibility of the Employees for membership or benefits under the Employee
Plans
and under the Replacement Plans:
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8.5.1
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their
period of employment shall include employment with both the Vendor
and the
Purchaser and shall be deemed not to have been interrupted at the
Closing
Time; and
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8.5.2
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their
period of membership shall include membership in both the Employee
Plans
and the Replacement Plans and shall be deemed not to have been interrupted
at the Effective Time;
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The
Employees shall begin to accrue benefits under the Replacement Plans, if any,
as
of the Effective Time in respect of their employment by the
Purchaser.
SECTION
9
SURVIVAL
OF COVENANTS, REPRESENTATIONS
AND WARRANTIES
9.1 To
the
extent they are not fully performed at the Effective Time, the covenants,
representations and warranties contained in this Agreement, and in all
certificates and documents delivered pursuant to or contemplated by this
Agreement, shall survive the closing of the purchase of the Purchased Assets
provided for herein for the applicable limitation period notwithstanding such
closing nor any investigation made by or on behalf of the party entitled to
the
benefit thereof.
SECTION
10
TRANSFER
OF POSSESSION
10.1 Subject
to compliance with the terms and conditions hereof, the transfer of possession
of the Purchased Assets shall be deemed to take effect as at the opening of
business on the Closing Date. The Purchaser covenants that, until the
Arrangement has been approved by the shareholders and the Court of Queen’s Bench
of Alberta in the manner indicated in Section 11, the Purchaser shall not sell,
lease or exchange any of the Purchased Assets, except in the ordinary course
of
business and shall continue to carry on the same Business.
13
SECTION
11
SHAREHOLDER
MATTERS
11.1 In
the
event that:
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11.1.1
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the
shareholders of the Vendor do not ratify the sale of the Purchased
Assets
to the Purchaser by their approving, pursuant to a special resolution,
the
Arrangement under Section 193 of the Act;
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11.1.2
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shareholder(s)
of the Vendor validly exercise rights of dissent in respect of more
than
2.0% of the common shares of the Vendor issued and outstanding at
the
record date for the shareholder meeting wherein the shareholders
of the
Vendor are asked to approve this Agreement;
or
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11.1.3
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the
Court of Queen’s Bench of Alberta does not issue a final order approving
the Arrangement;
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then,
the
Vendor and the Purchaser shall take such steps as may be required for the
Purchased Assets to be reconveyed to the Vendor and the Assumed Liabilities
to
be reassumed by the Vendor so that the parties hereto are, to the extent
possible, returned to the positions they would have been in had the transactions
contemplated by this Agreement not occurred.
SECTION
12 -
GENERAL
Headings
12.1 The
headings to the sections of this Agreement and the Table of Contents are
inserted for convenience of reference only and shall not affect the construction
or interpretation of this agreement.
Severability
12.2 Any
term,
condition or provision of this Agreement which is deemed to be, void, prohibited
or unenforceable shall be severable herefrom, be ineffective to the extent
of
such avoidance, prohibition or unenforceability without in any way invalidating
the remaining terms, conditions and provisions hereof.
Enforcement
of Remedies
12.3 If
at any
time any party shall be in default of any of its covenants or agreements
contained in or arising out of this Agreement, any remedy which may be available
to any other party by virtue of any provision contained in this Agreement and
as
a consequence of such default shall be in addition to and not by way of
substitution for any statutory or common law remedy which may also be available
and all such remedies may be enforced either successively or
concurrently.
14
Non-Waiver
12.4 Neither
the granting of any time or other indulgence to any party hereto nor the failure
of any party to insist upon the strict performance of any covenant, term, or
condition of this Agreement or to enforce its rights hereunder shall be
construed as a waiver of its rights or remedies hereunder and the same shall
continue in full force and effect.
Written
Waiver
12.5 Except
as
otherwise provided herein, only a written waiver by a party hereto of any breach
(whether actual or anticipated) of any of the terms, conditions, representations
and warranties contained herein, shall be effective or binding on that party.
Any waiver so given shall extend only to the particular breach so waived, and
shall not limit or affect any rights for any other or future breach
Further
Assurances
12.6 Each
party hereto will promptly and duly execute and deliver to each remaining party
such further documents and assurances and take such further action as such
remaining party may from time to time reasonably request in order to more
effectively carry out the intent
and purpose of this Agreement and to establish and protect the rights and
remedies created or intended to be created hereby.
Notices
12.7 Any
notice or acceptance required or permitted to be given under the terms of this
Agreement shall be sufficiently given to the party to whom it is addressed
if
delivered the party (or if such party is a corporation, to an officer of that
corporation), or, if forwarded by registered mail, return receipt requested,
or,
if sent by facsimile transmission as follows:
to
the
Vendor at:
1123
Dentistry/Pharmacy Bldg.
University
of Alberta
Xxxxxxxx,
XX X0X 0X0
Attention:
Xxxxx
Xxxxxx
Fax
No.
000.000.0000
15
and
to
the Purchaser at:
1123
Dentistry/Pharmacy Bldg.
University
of Alberta
Xxxxxxxx,
XX X0X 0X0
Attention:
Xxxxx
Xxxxxx
Fax
No.
000.000.0000
with
a
copy to:
Xxxxxx
XxXxxx llp
Barristers
& Solicitors
0000
Xxxxxxxx Xxxxx, 00000 - 000 Xxxxxx
Xxxxxxxx,
XX X0X 0X0
Attention:
Xxxxx X.
Xxxxx
Fax
No.
000.000.0000
or
to
such other address or facsimile number as a party may furnish in writing to
the
remaining parties from time to time. Any notice personally delivered before
4:30
p.m. local time at the place of delivery on a Business Day at the place of
delivery shall be deemed to have been received and given on the day of delivery
and any notice personally delivered after 4:30 p.m. local time at the place
of
delivery shall be deemed to have been received and given on the next following
Business Day. Any notice mailed as aforesaid shall be deemed to have been
received and given 6 clear days after the day it is mailed, unless there is
a
postal strike or other disruption affecting mail delivery, in which event the
notice shall be deemed to have been received and given when it is actually
received. Any notice transmitted by facsimile before 4:30 p.m. local time on
a
Business Day at the place to which it is sent shall be deemed to have been
received and given on the day of transmission and any notice transmitted by
facsimile after 4:30 local time at the place to which it is sent shall be deemed
to have been received and given on the
next
following Business Day.
Alteration
of this Agreement
12.8 No
change
or modification to this Agreement shall be valid unless it shall be in writing
and signed by all parties hereto.
Governing
Law
12.9 This
Agreement shall be subject to and be interpreted, construed and enforced in
accordance with the laws in effect in the Province of Alberta excluding any
conflicts of law, rule or principle which might refer such construction to
the
laws of another jurisdiction. Each party hereto accepts and hereby irrevocably
and unconditionally consents to submit to the jurisdiction of the courts of
the
Province of Alberta and all courts of appeal therefrom for any actions, suits
and proceedings occurring out of or relating to this Agreement and the
transactions contemplated thereby (and agrees not to commence any action, suit
or proceeding relating thereto except in such courts) other than those matters
agreed to arbitrated hereunder. Each of the Parties hereto hereby irrevocably
and unconditionally waive any objection to the venue of any actions, suits,
or
proceedings arising out of this Agreement or the transactions contemplated
thereby being in the courts of the Province of Alberta and further irrevocably
and unconditionally waive and agree not to plead or claim in any such court
that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
16
Time
12.10 Time
shall be of the essence in this Agreement.
Entire
Agreement
12.11 This
agreement, including the Schedules hereto annexed and any other written
agreements contemplated hereby and delivered including but not limited to the
Indemnity Agreement, constitutes the entire Agreement between the parties hereto
and there are no oral statements, representations, warranties, undertakings
or
agreements, written or oral, express or implied, between the parties hereto
except as herein set forth.
Assignment
12.12 None
of
the parties hereto may assign this Agreement or any of its rights or obligations
hereunder without the prior written consent of each remaining party, such
consent which shall not be unreasonably withheld and provided further that
in
the event of any such assignment, the assignor shall continue to be liable
in
respect of all of its covenants and obligations hereunder and the remaining
parties hereto may require, as a condition of their consent, that the assignee
covenant in writing directly with them to observe, perform and comply with
the
assignor’s covenants and obligations hereunder.
Binding
Nature and Enurement
12.13 This
Agreement and everything herein contained shall enure to the benefit of and
shall be binding upon the parties hereto together with their respective personal
representatives, successors and permitted assigns but shall not be assignable
by
either the Vendor or the Purchaser without the prior written consent of the
other of them.
17
Execution
in Counterpart
12.14 This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one and the same
instrument. It shall not be necessary that any single counterpart hereof be
executed by all parties to this Agreement long as at least one counterpart
is
executed by each such party. For the purposes of this Agreement any person
who
has acknowledged in writing that he has signed a counterpart of this Agreement
shall be conclusively deemed to have executed the same.
Delivery
by Facsimile
12.15 This
Agreement and any other agreement, document or instrument required or permitted
hereby shall be deemed to be validly executed and delivered by a party when
a
copy thereof has been executed by that party and transmitted by facsimile to
each of the remaining parties. A party delivering this Agreement or any such
other agreement, document or instrument by facsimile as aforesaid covenants
to
promptly deliver to each of the remaining parties an originally executed copy
of
thereof by ordinary mail or by courier.
IN
WITNESS WHEREOF the parties hereto have executed this Agreement on the day
and
year first above written.
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ALTAREX
CORP.
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per
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(signed)
“Xxx Xxxxxx”
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per
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ALTAREX
MEDICAL
CORP
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per
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(signed)
“Xxx Xxxxxx”
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per
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18
