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EXHIBIT 10.17
DUNDAS & XXXXXX
XXXXXXXX LEGAL
XXXXX XXXX AND OTHERS
VIRAGEN (EUROPE) LIMITED
AND
VIRAGEN INC.
AGREEMENT FOR THE ACQUISITION OF BIONATIVE AB
DATED 28th SEPTEMBER 2001
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TABLE OF CONTENTS
CLAUSE
1 Definitions and interpretation 1
2 Sale and purchase of shares 7
3 Consideration 7
4 Deferred Consideration 8
5 Spin Off 10
6 Completion 10
7 Completion rights and obligations 11
8 Warranties 12
9 Compensation and Limitation of Vendors' Liability 15
10 Restrictive covenants 18
11 Confidentiality 18
12 Pensions 19
13 Tax covenant 19
14 Announcements 19
15 Further assurance 20
16 Time not of the essence 20
17 Notices 20
18 Assignment 22
19 Costs 22
20 Entire agreement 22
21 Variation 22
22 Survival of provisions 23
23 Invalidity 23
24 Waivers 23
25 Counterparts 23
26 Governing law 24
27 Service of process 24
SCHEDULES
1 Vendors' Names, Addresses and Shareholdings
2 The Company
3 The Subsidiaries
4 Completion Documents
5 Warranties
6 Intellectual Property Rights and Software
7 Employees
8 Tax Covenant
9 Properties
10 Purchaser's Warranties
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THIS AGREEMENT is made on 28 September 2001
AMONG:
(1) THE PERSONS whose names and addresses are set out in Schedule 1
(collectively the "VENDORS" and individually a "VENDOR").
(2) VIRAGEN (EUROPE) LIMITED, a company incorporated in the State of
Delaware (Internal Revenue Service Employer Identification Number
00-0000000) (the "PURCHASER").
(3) VIRAGEN INC, a company incorporated in the State of Delaware (Internal
Revenue Service Employer Identification Number 00-0000000) ("VRA").
RECITALS:
(A) BIONATIVE AB is a private limited company organised and existing under
the laws of Sweden (registered number 556253-7877) and having its
registered office at (Box 7979) Xxxxxxxxxxx 00, 000 00 Xxxx, Xxxxxx
(the "COMPANY") details of which are set out in Schedule 2.
(B) The Vendors are the legal and beneficial owners of, with full right to
transfer the legal and beneficial title to, the whole of the issued
share capital of the Company in the numbers shown opposite their
respective names in column 2 of Schedule 1.
(C) The Vendors have agreed to sell and the Purchaser has agreed to
purchase the whole of the issued share capital of the Company on the
terms and subject to the conditions of this Agreement.
THE PARTIES AGREE as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, the following
words and phrases have the meanings stated:
ACCOUNTS the audited balance sheet of the Company as
at, and the audited profit and loss account
and income statement of the Company for the
financial period ended on, the Accounts
Date, together with the notes to, and the
auditors' report on, those accounts, the
directors' report and all other documents or
statements annexed to or incorporated in
those accounts
ACCOUNTS DATE 31 December 2000
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ALFANATIVE AlfaNative(TM), the natural human
interferon-alpha which is obtained from the
leukocyte fraction of human blood following
induction with Sendai virus by the Company
and used for treatment of patients with
various indications including hairy cell
leukaemia and chronic myelogenous leukaemia
AMEX(R) the American Stock Exchange, a trading name
of The American Stock Exchange LLC
BUSINESS DAY 9am to 5pm on any day (other than a
Saturday or Sunday) on which clearing banks
are open for the transaction of normal
banking business in the USA and Sweden
COMPLETION completion of the sale and purchase of the
Shares in accordance with Clause 6
COMPLETION DATE the date of this Agreement
CONFIDENTIAL INFORMATION all information of a confidential nature
which is used in or in connection with a
Group Company's business, or which otherwise
relates to its business, customers or
financial or other affairs, including,
without limitation, information relating to:
(a) the manufacturing, sale or
marketing of products including
AlfaNative or services including,
without limitation, customer names
and lists and other details of
customers, financial information,
sales targets, sales statistics,
market share statistics, prices,
costs, market research reports and
surveys, and advertising or other
promotional materials; or
(b) future projects, business
development or planning, commercial
relationships and negotiations
CONSIDERATION the consideration due for the Shares set out
in Clause 3 and Clause 4
CONSIDERATION SHARES the ordinary shares in the capital of the
Purchaser to be allotted and issued to the
Vendors as Consideration pursuant to Clauses
3 and 4
DEFERRED CONSIDERATION PAYMENT the period from the Completion Date up to
PERIOD and including the last date on which
Deferred Consideration Shares are allotted
pursuant to this Agreement
DEFERRED CONSIDERATION SHARES all or any of the First Deferred
Consideration Shares, Second Deferred
Consideration Shares, Third Deferred
Consideration Shares and Fourth Deferred
Consideration Shares
DISCLOSURE LETTER the disclosure letter (together with all the
documents attached to it) in the agreed form
from the Vendors to the Purchaser signed and
delivered immediately prior to Completion
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EMPLOYEES directors, deputy directors, managing
directors and other officers of and certain
senior employees of each Group Company which
notwithstanding the foregoing generality
includes those persons detailed in section A
of Schedule 7
ENCUMBRANCE any encumbrance or security interest
whatsoever including (without limitation)
any charge, mortgage, floating charge,
pledge, hypothecation, assignment in
security, lien, right of pre-emption,
option, right to acquire, conversion right,
third party right, interest and claim, right
of set-off, right of counterclaim, title
retention, conditional sale arrangement and
any other preferential right, agreement or
arrangement having similar effect
EU the European Union and member states of the
European Union as the case may be
EVENT the meaning given in the Tax Covenant
GROUP the Company and the Subsidiaries
GROUP COMPANY the Company or either of the Subsidiaries
INTELLECTUAL PROPERTY RIGHTS includes any patent, xxxxx patent,
copyright, database rights, registered
design or other design right, utility model,
trade xxxx (whether registered or not and
including any rights in get up or trade
dress), brand name, service xxxx, trade
name, business name (whether registered or
not), internet domain name, and any other
rights in respect of any other intellectual
property, whether registerable or not and
wherever existing in the world and including
all renewals, extensions and revivals and
all rights to apply for any of the foregoing
rights
KNOW HOW all information and techniques existing in
any media, and, whether or not in the public
domain, which are used or required to be
used by the Company and its Subsidiaries in
or in connection with its business including
(without limitation) information relating to
clinical aspects in the use, administration
or treatment, but not limited to, the
manufacture of human leukocyte interferon,
the operation of any process; the
manufacture, design or development of any
products; production techniques; the
provision of any service; the selection and
purchase of any component, part or raw
materials; the construction, repair or
maintenance of any product, plant or
equipment; quality control; testing;
certification and research and development
LEASE the lease under which the Company or a
Subsidiary holds its interest in each of the
Leasehold Properties as shown in Schedule 9
and any documents supplemental to such lease
whether or not expressed to be so
LEASEHOLD PROPERTIES those properties occupied by the Company or
a Subsidiary on leasehold as set out in
Schedule 9
LICENCE any licence, consent, permit, certificate,
exemption, permission or other approval,
filing of notification or
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return, report and assessment, registration
or authorisation required for, or in
connection with, any part of the business of
the Company or a Subsidiary (including,
without prejudice to the foregoing
generality, any medical approval relative to
any product and any authorisation from the
Medical Products Agency in Sweden) or their
ownership, use, possession or occupation of
any asset or the Properties
MANAGEMENT ACCOUNTS the unaudited balance sheet of each Group
Company and the unaudited consolidated
balance sheet of the Group as at, and the
unaudited profit and loss account of each
Group Company and the unaudited consolidated
profit and loss account of the Group for the
financial period ended on, the Management
Accounts Date, the notes to, and all other
documents or statements annexed to or
incorporated in, those accounts, translated
into the English language
MANAGEMENT ACCOUNTS DATE 30 June 2001
THE MANAGEMENT Xx Xxxxx, Magareta Xxxxxxx, Xxx Xxxxxxxx,
Xxx Xxxxxxxxx and Per Xxxxxxxxxx
MARKET VALUE the closing price of the Purchaser's
common stock as reported on the NASD OTC
bulletin board at the close of business on
the relevant day
MUTUAL RECOGNITION PROCEDURES the procedures by which the marketing of
AlfaNative throughout the EU may be
approved.
NASD National Association of Security Dealers
Inc.
NASDAQ The Nasdaq Stock Market Inc.
OWNED INTELLECTUAL PROPERTY all Intellectual Property Rights owned by
RIGHTS the Company and its Subsidiaries and used in
or in connection with the business of the
Company and its Subsidiaries including
(without limitation) those listed in
sections A (Patents) and B (Trademarks) of
Schedule 6 (Intellectual Property Rights and
Software)
PENSION SCHEME the Company's general employee pension
scheme administered by the Swedish Insurance
Company SPP and Xxxxx Xxxx'x individual
pension scheme, details of which are
attached to the Disclosure Letter
PRODUCTION FACILITY the new production facility owned by the
Company in Umea, Sweden, which is to be
erected and equipped to produce AlfaNative
and related components as necessary
PROPERTIES the properties referred to in Schedule 9and
reference to a Property includes a reference
to each of the individual properties whether
real (in accordance with Swedish law) or
leasehold
PURCHASER'S DISCLOSURE LETTER the disclosure letter (together with all the
documents attached to it) in the agreed form
from the Purchaser to the Vendors qualifying
the Purchaser's Warranties and signed and
delivered immediately prior to Completion
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PURCHASER'S SOLICITORS Dundas & Xxxxxx, X.X. of 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, X0 0XX
PURCHASER'S WARRANTIES the representations, warranties and
undertakings contained in Schedule 100
RESTRICTIVE COVENANT a restrictive covenant in the agreed form
granted by each of the Vendors to the
Purchaser
SCIENCE ADVISORY BOARD a board of scientific experts to be
appointed by the board of directors of the
Purchaser to advise that board on, inter
alia, all scientific, clinical, production
and regulatory matters
SEK Swedish Krona, the legal tender of Sweden
SHARES the 20,000 ordinary shares of SEK 100_ each
in the capital of the Company comprising the
whole of the issued share capital of the
Company
SPIN-OFF the allotment and issue of stock in the
Purchaser to the stockholders of VRA
pursuant to Clause 5
SUBSIDIARIES the subsidiaries and subsidiary undertaking
of the Company details of which are set out
in Schedule 3 and references to a SUBSIDIARY
include a reference to each of the
individual subsidiaries and subsidiary
undertakings
TAX any and all national, departmental and local
taxes and duties (including, but not limited
to, corporation tax, value added tax,
business tax, registration tax, land tax and
customs duties) and all social and
parafiscal charges
TAX COVENANT the tax covenant contained in Schedule 8
TAX LIABILITY the meaning given in the Tax Covenant
TAXATION AUTHORITY the meaning given in the Tax Covenant
USA the United States of America
USD$ US Dollars, the legal tender of USA
VAT sales or value added tax
VENDORS' SOLICITORS Xxxxxxxxxx Xxxxxxxxx Advokatbyra AB, Box
1711, XX-000 00 Xxxxxxxxx, Xxxxxx
WARRANTIES the representations, warranties and
undertakings contained in Schedule 5 and
references to a WARRANTY are to be construed
accordingly.
1.2 In this Agreement, unless the context otherwise requires:
1.2.1 references to any document being in the "AGREED FORM" mean
that document in the form agreed and, for the purposes of
identification only, signed or initialled by or on behalf of
the Vendors and the Purchaser;
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1.2.2 references to any statute or statutory provision include a
reference to:
(a) subordinate legislation made from time to time
pursuant to that statute or statutory provision
(whether before or after the date of this Agreement);
and
(b) that statute or statutory provision as amended,
extended, consolidated and/or re-enacted from time to
time (whether before or after the date of this
Agreement);
1.2.3 words denoting one gender include all other genders and words
denoting the singular include the plural and vice versa;
1.2.4 references to a person include individuals, bodies corporate,
unincorporated associations, partnerships, joint ventures, and
government departments or agencies, and references to any of
the same include the others;
1.2.5 references to a company include any company or other body
corporate, wherever incorporated or established;
1.2.6 subject to Clause 18 (Assignment), references to the parties
include their respective successors and permitted assignees or
transferees: and
1.2.7 a person is deemed to be connected with another if that person
is so connected within the meaning of section 839 of the Taxes
Act.
1.3 References to Clauses or Schedules are to clauses of, or schedules to,
this Agreement.
1.4 The Schedules forms an integral part of this Agreement and references
to this Agreement include the Schedules to this Agreement.
1.5 The headings to the Clauses are for convenience only and do not affect
the construction or interpretation of this Agreement.
1.6 Any statement which refers to the knowledge, information, belief or
awareness of the Vendors or any similar expression is deemed to include
an additional statement that it has been made after due and careful
consideration. and after having made full enquiry of all persons having
knowledge of the relevant matters, and the knowledge, information,
belief and awareness of the Vendors is deemed to include the knowledge,
information, belief and awareness of such persons.
1.7 The ejusdem generis rule of construction does not apply to this
Agreement and accordingly the meaning of general words is not to be
restricted by any particular examples preceding or following those
general words.
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1.8 A person who is not a party to this Agreement is not entitled to
enforce any of its terms under the Contracts (Rights of Third Parties)
Xxx 0000 except where this Agreement expressly provides that such a
person is entitled to enforce any of its terms under that Act.
1.9 References to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or
any legal concept or thing shall in respect of any jurisdiction other
than England, including for the avoidance of doubt Sweden, be deemed to
include what most nearly approximates in that jurisdiction to the
English legal term.
2 SALE AND PURCHASE OF SHARES
2.1 Each Vendor agrees to sell with full title guarantee the number of
Shares shown opposite his name in column 2 of Schedule 1 and the
Purchaser agrees to purchase the Shares and each right attaching to the
Shares at or after the date of this Agreement, including the right to
receive all dividend, if any, distributed after Completion, in
particular all dividends, if any, relating to the financial year as of
Completion, free of all Encumbrances.
2.2 Sections 6(1) and 6(2) of the Law of Property (Miscellaneous
Provisions) Xxx 0000 do not apply to this Agreement.
2.3 The Purchaser shall not be obliged to complete the purchase of any of
the Shares unless the purchase of all the Shares is completed
simultaneously.
2.4 Each Vendor irrevocably waives and undertakes to procure the waiver of
all rights of pre-emption and all other restrictions whatsoever on
transfer over or in respect of the Shares or any of them to which he,
she or any other person may be entitled under the articles of
association of the Company or otherwise.
3 CONSIDERATION
3.1 The initial consideration for the purchase of the Shares by the
Purchaser shall be the allotment and issue, credited as fully paid of
such number of ordinary shares as at the Completion Date equate to 5%
of the issued share capital of the Purchaser (on a fully diluted basis
at the Completion Date which, for the avoidance of doubt, shall be
inclusive of the maximum number of Consideration Shares which may be
allotted pursuant to this Agreement) being 2,933,190 shares. Such
consideration the ("Initial Consideration Shares") shall be issued by
the Purchaser to the Vendors at Completion in the manner set out in
Clause 6.7 (Completion).
3.2 The Consideration, and the Deferred Consideration if any, to be issued
pursuant to Clause 4, shall be apportioned and divided rateably between
the Vendors (or their beneficiaries) in the proportions shown opposite
their respective names in column 3 of Schedule 1.
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4 DEFERRED CONSIDERATION
4.1 At Completion or within 30 Business Days, whichever is the earlier
event, of the Purchaser receiving evidence to its satisfaction that the
Medical Products Agency in Sweden has issued a re-registration
certificate ("the Re-registration Certificate") in respect of
AlfaNative, the Purchaser will allot and issue to the Vendors (or their
beneficiaries), credited as fully paid, such number of ordinary shares
in the capital of the Purchaser which cumulatively equate to 10% of the
issued share capital of the Purchaser on a fully diluted basis at the
Completion Date (which for the avoidance of doubt shall be inclusive of
the maximum number of Consideration Shares which may be allotted
pursuant to this Agreement) being 5,866,380 shares (such shares
hereinafter referred to as the "First Deferred Consideration Shares").
4.2 At Completion or within 30 Business Days, wherever is the earlier
event, of the Purchaser receiving evidence to its satisfaction that the
Re-registration Certificate includes indications of a second line
treatment for any disease, the Purchaser will allot and issue to the
Vendors (or their beneficiaries), credited as fully paid, such number
of ordinary shares in the capital of the Purchaser which cumulatively
equate to 5% of the issued share capital of the Purchaser, on a fully
diluted basis, at the Completion Date (which for the avoidance of doubt
shall be inclusive of the maximum number of Consideration Shares which
may be allotted pursuant to this Agreement ) being 2,933,190 shares
(such shares hereinafter referred to as "Second Deferred Consideration
Shares").
4.3 At Completion, or within 30 Business Days, whichever is the earlier
event of the Purchaser receiving notification to its satisfaction, that
the Mutual Recognition Procedures application has received the approval
of the requisite national and EU regulatory authority for the use, sale
and marketing of AlphaNative in certain countries which must include
Germany, the Purchaser will allot and issue to the Vendors (or their
beneficiaries), credited as fully paid, such number of ordinary shares
in the capital of the Purchaser as cumulatively equate to 15% of the
issued share capital of the Purchaser on a fully diluted basis, at the
Completion Date (which for the avoidance of doubt shall be inclusive of
the maximum number of Consideration Shares which may be allotted
pursuant to this Agreement ) being 8,799,570 shares (such shares
hereinafter referred to as the "Third Deferred Consideration Shares").
4.4 At Completion, or within 30 Business Days of the earlier of the
Purchaser receiving notification to its satisfaction, that:
4.4.1 AlphaNative has been approved by the relevant and requisite
regulatory bodies in the EU for the treatment of melanoma; or
4.4.2 AlphaNative has been approved by relevant and requisite
regulatory bodies of for sale and use in the USA;
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The Purchaser shall allot and issue, credited as fully paid, to the
Vendors (or their beneficiaries) such number of shares as cumulatively
equate to 5% of the issued share capital of the Purchaser on a fully
diluted basis, as at the Completion Date (which for the avoidance of
doubt shall be inclusive of the maximum number of Consideration Shares
which may be allotted pursuant to this Agreement) being 2,933,190
shares (such shares hereinafter referred to as the "Fourth Deferred
Consideration Shares").
4.5 For the avoidance of doubt, the aggregate total of the Initial
Consideration Shares and the Deferred Consideration Shares shall in no
circumstances exceed 40% of the issued share capital of the Purchaser
on a fully diluted basis at the Completion Date being a maximum of
23,465,520 shares.
4.6 The shares of the Purchaser to be issued to the Vendors have been or
will have been duly authorised by all necessary corporate and
shareholder actions and, when so issued in accordance with the terms of
this Agreement, will be validly issued, fully paid and non-assessable.
4.7 The shares of the Purchaser to be issued to the Vendors have not been
registered under the U.S. Securities Act of 1933 and may not be resold
in the USA unless these shares have been registered under that Act or
an exemption from registration is available. The Vendors represent and
warrant that they are acquiring these shares of the Purchaser for their
own account, for investment and not with a view to the sale or
distribution of these shares in the USA unless registered or exempt.
Each certificate evidencing the shares of the Purchaser to be issued to
the Vendors will have an appropriate legend included on the certificate
with this restriction.
4.8 Subject to any regulatory constraints and the Purchaser's right to
withhold registration of any of the Consideration Shares in
circumstances where a warranty claim has arisen in terms of this
Agreement, the Purchaser shall procure that, at the cost and expense of
the Purchaser, all necessary measures are taken to ensure that the
Consideration Shares may be resold by the Vendors. Such measures
include, inter alia, registration of the shares under the U.S.
Securities Act of 1933 which the Purchaser shall file within 90
Business Days of the date of their allotment and issue to the Vendors.
4.9 The obligation of the Purchaser to allot and issue to the Vendors (or
their beneficiaries) any Deferred Consideration Shares shall terminate
on the tenth anniversary of the Completion Date and be of no further
force or effect.
4.10 The obligation of the Purchaser to allot and issue to any Vendor (or
his or its beneficiary) any Deferred Consideration Shares shall
terminate and be of no further force or effect in the event of any
breach of any of the terms of the Restrictive Covenant granted by that
Vendor, subject to the terms of that Restrictive Covenant.
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5 SPIN OFF
5.1 It is the firm intention of VRA's board of directors to declare a
distribution or Spin-Off of all of the Purchaser's shares held by VRA
on a pro-rata basis to its shareholders of record and others who may be
entitled to such distribution ("STOCKHOLDERS OF RECORD").
5.2 VRA's board of directors intends to declare the Spin-Off at the earlier
of:-
5.2.1 the date VRA's board considers the Purchaser, including the
Company, financially capable of maintaining its own operations
through revenues or independent equity transactions; and
5.2.2 when the Purchaser's common stock meets the minimum listing
criteria of either the Amex(R) or NASDAQ as the VRA board may
determine.
5.3 During the period commencing on the Completion Date through to the
effective date of the Spin-Off, VRA undertakes to continue to fund
operations of the Purchaser, including those of the Company.
5.4 Subsequent to VRA's board of directors declaring the Spin-Off, VRA
shall file with the NASD an application notice of the spin-off and
issue a press release containing the basic details of the Spin-Off. VRA
shall thereafter obtain all necessary permissions and consents of the
regulatory authorities and its stockholders to the transactions
envisioned by this Agreement. Upon receipt of the requisite approvals
and completion of the filings with the relevant regulatory bodies, VRA
shall distribute to its Stockholders of Record as of the record date
for the Spin-Off, the stock held by it in the Purchaser.
6 COMPLETION
6.1 Completion shall take place at the offices of the Vendors' Solicitors
on the Completion Date or such other later date as may be agreed in
writing, when all of the business referred to in Clauses 6.2 to 6.7
shall take place.
6.2 At Completion the Vendors shall deliver or make available to the
Purchaser each of the items set out in Schedule 4 (Completion
Documents).
6.3 At Completion the Vendors shall procure that a board meeting of the
Company is held (at which the chairman of such meeting signs the board
minutes of that meeting in the agreed form) at which the directors:
6.3.1 approve for registration the transfers of the Shares to the
Purchaser and the entry of the transferee in the register of
shareholders of the Company;
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6.3.2 revoke all existing mandates for the operation of the bank
accounts of the Company and issue new mandates giving
authority to those persons nominated by the Purchaser;
6.3.3 convene an extraordinary general meeting of the Company
pursuant to Clause 6.5.2;
6.4 As from Completion, the Vendors undertake to enter into and issue to
the Purchaser or its nominee all necessary powers of attorney in the
agreed form and such other documents requested by the Purchaser to
represent the Company and each of its Subsidiaries until the new board
of directors has been registered.
6.5 At Completion:-
6.5.1 the Vendors shall procure that a board meeting of each
Subsidiary is held at which the directors revoke all existing
mandates for the operation of the Subsidiary's bank accounts
and issue new mandates giving authority to those persons
nominated by the Purchaser and at which the chairman of such
meeting signs the board minutes of that meeting in the agreed
form; and
6.5.2 the Purchaser will convene an extraordinary shareholders'
meeting of each Group Company at which a new board of
directors of each Group Company will be appointed by the
Purchaser.
6.6 The Purchaser shall procure that any retiring board members and
deputies as well as the managing directors of each of the Group
Companies shall be discharged from liability at the respective ordinary
general shareholders' meeting following Completion, provided that the
statutory auditor(s) of the respective Group Company shall so
recommend.
6.7 Upon completion of the matters referred to in Clauses 6.2 to 6.5
(inclusive) the Purchaser shall:
6.7.1 deliver to the Vendors' Solicitors a copy, certified to be a
true copy by a director or secretary of the Purchaser, of a
resolution of the Purchaser's board of directors (or an
authorised committee of that board) authorising the execution
and completion of this Agreement; and
6.7.2 allot and issue to the Vendors, the requisite Consideration
Shares.
7 COMPLETION RIGHTS AND OBLIGATIONS
7.1 The Purchaser undertakes and agrees that following Completion:
7.1.1 it shall provide adequate sums to design, build and equip a
new Production Facility, subject to the Purchaser having the
sole right to prior approve all designs and costs and
providing that the Purchaser shall be under no obligation to
contribute more than the lesser of between USD$2,500,000 and
USD$3,000,000 (being the current estimate
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of the costs of the works) and the amount certified by a
quantity surveyor employed by the Purchaser to provide a
definitive estimate of the costs involved, it being the firm
intention of the Purchaser to commence construction of such
Production Facility within 6 calendar months of Completion.
7.1.2 it shall procure the Company changes its name to "ViraNative"
or such other name not incorporating the name "BioNative" as
may be available;
7.1.3 it shall continue, subject to modification, and so far as
commercially viable or desirable, existing agreements between
the Group and members of the group of companies of which VRA
is the holding company;
7.1.4 it shall abide by and comply with the terms of the agreement
between the Company, Xxxx Xxxxxx and Immunsystem AB in respect
of the Company's shareholding in ImmunoNative AB.
7.2 As from the Completion Date, the Vendors shall cumulatively be entitled
to appoint:
7.2.1 two directors to become members of the board of directors of
the Purchaser; and
7.2.2 two members to the Purchaser's Science Advisory Board
7.2.3 As from the Completion Date, the Vendors shall exercise their
respective best efforts to procure that members of Management
shall enter into service agreements with the Company in a form
approved by the Purchaser.
8 WARRANTIES
8.1 The Vendors severally represent, warrant and undertake to and covenant
with the Purchaser that at the Completion Date:-
8.1.1 each Vendor is the sole legal and beneficial owner of the
number of Shares shown opposite his or her name in column 2 of
Schedule 1 and has the full power, right and authority to
enter into and perform this Agreement and to transfer with
full title guarantee the legal and beneficial ownership of
such number of Shares to the Purchaser on the terms of this
Agreement without the consent of any third party;
8.1.2 the Shares constitute the whole of the allotted and issued
share capital of the Company and are fully paid or credited as
fully paid;
8.1.3 there is no Encumbrance on, over or relating to any of the
Shares and, other than this Agreement, there is no agreement
or arrangement to give or create any such Encumbrance and no
person has or has claimed the right to an Encumbrance on, over
or relating to any of the Shares or otherwise has or has
claimed the right to call for the
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allotment, issue or transfer of any shares, debentures or
other securities in the capital of the Company or any
Subsidiary whether exercisable now or in the future and
whether or not contingent;
8.1.4 the information contained in the Schedules is true and
accurate and not misleading and the Subsidiaries are the only
subsidiaries of the Company;
8.1.5 save as fully, fairly and specifically disclosed in the
Disclosure Letter, the contents of this Agreement (and in
particular (without limitation) each Warranty and provision of
this Clause 8.1) and the Disclosure Letter are true, complete
and accurate in all material respects and not misleading in
any respect at the date of this Agreement,
and except in respect of any matter or thing expressly done or omitted
to be done prior to Completion at the written request or with the prior
written consent of the Purchaser that each Warranty and the provisions
of this Clause, will be true, complete and accurate in all respects and
not misleading in any respect at Completion by reference to the facts
and circumstances then existing and, for such purposes, references to
the "date of this Agreement" shall be construed as references to the
"Completion Date".
8.2 Each Vendor acknowledges that the Purchaser is entering into this
Agreement in reliance upon the Warranties and the provisions of Clause
8.1 and may treat them as conditions of the Agreement. Each Vendor
further acknowledges he has also given the Warranties and provisions of
Clause 8.1 as representations with the intention of inducing the
Purchaser to enter into this Agreement and that the Purchaser has been
induced to enter into this Agreement on the basis of and in full
reliance upon them.
8.3 Save as fully, fairly and specifically disclosed in the Disclosure
Letter or as provided in Clause 9.6, no information of which the
Purchaser has actual, constructive or imputed knowledge shall prejudice
any claim that the Purchaser may make, or the amount of damages that
the Purchaser may recover, for breach of any of the Warranties or of
Clause 8.1.
8.4 Each of the Warranties and each of the provisions of Clause 8.1 shall
be construed as a separate and independent representation, warranty and
undertaking such that the Purchaser shall have a separate claim and
right of action for every breach of each such representation, warranty
and undertaking.
8.5 Save as is necessary to give effect to the express terms of this
Agreement, the Vendors shall not, and shall procure that in so far as
they are able, no Group Company shall do, allow or procure before
Completion anything which is, or might constitute, or result in, a
breach of any of the Warranties or provisions of Clause 8.1 as given on
exchange and immediately prior to Completion.
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8.6 None of the information supplied by or on behalf of a Group Company,
its agents or advisers or an Employee to one or more of the Vendors or
to his or their agents or advisers in connection with the Warranties,
Clause 8.1, the Disclosure Letter and/or the business and affairs of a
Group Company constitutes a representation, warranty or undertaking as
to its accuracy by a Group Company or an Employee to any of the
Vendors, and each Vendor waives each and every claim against each Group
Company and/or each Employee which he might otherwise have in respect
of such information.
8.7 Each Vendor undertakes to notify the Purchaser before and after
Completion immediately of any event, circumstance or thing which arises
or comes to his knowledge which is or may be inconsistent with any of
the Warranties or the provisions of Clause 8.1 or the Disclosure
Letter, or which is or may constitute a breach of any of the Warranties
or the provisions of Clause 8.1, or which may give rise to a claim
under the Tax Covenant, or which may be material to be known by a
purchaser for value of the Shares.
8.8 Without prejudice to the Purchaser's rights or remedies to claim
damages pursuant to this Agreement including, without prejudice to the
foregoing generality, in the event of any alleged fraud, gross
negligence or fraudulent misrepresentation, if the Purchaser proceeds
to Completion and there is a breach of any of the Warranties or
provisions of Clause 8.1 or if any of the Warranties or provisions of
Clause 8.1 is untrue, incomplete or inaccurate or misleading, and:
8.8.1 the value of any asset (including one warranted to exist but
not in fact existing) of a Group Company is less or becomes
less than the value would have been had the breach not
occurred or had the Warranty or provision been true, complete
or accurate or not misleading; or
8.8.2 the Purchaser or a Group Company incurs or becomes subject to
a liability or an increase in any liability which it would not
have incurred or been subject to had the breach not occurred
or had the Warranty or provision been true, complete or
accurate or not misleading; or
8.8.3 the profits of a Group Company are less, or its losses are
greater, than would have been the case had the breach not
occurred or had the Warranty or provision been true, complete
or accurate or not misleading,
then the Purchaser shall be relieved of its obligations in terms of
this Agreement to allot and issue the Consideration Share and shall be
entitled to withhold registration of any unregistered Consideration
Shares with the US Securities and Exchange Commission until such time
as any claim for breach of any Warranty or indemnity in terms of this
Agreement has been satisfied in full and the Vendors shall compensate
the Purchase (for itself and as trustee for each Group Company and each
other member of the Purchaser's group) in accordance with this
Agreement on demand by an amount equal to (as the Purchaser elects):
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8.8.4 the reduction in value of the asset or the liability or
increased liability incurred by the Group Company (as the case
may be); or
8.8.5 the reduction in the value of the Shares thereby caused; or
8.8.6 the amount by which the Group Company's profits are less or
its losses are greater (as the case may be).
8.9 Each Vendor shall be entitled to satisfy its obligations in respect of
a breach of warranty to the Purchaser in whole or in part by
transferring to the Purchaser or VRA (as the Purchaser may direct) the
allotted but unsold Consideration Shares received by it.
8.10 The Purchaser represents, warrants and undertakes that save as
disclosed in the Purchaser's Disclosure Letter the Purchaser's
Warranties are at the date of this Agreement and at the Completion Date
true, complete and accurate in all material respects.
9 COMPENSATION AND LIMITATION OF VENDORS' LIABILITY
9.1 This Clause 9 shall operate to limit the liability of the Vendors in
respect of any claim by the Purchaser for any misrepresentation or
breach of the Vendors' representations and warranties, but excluding
those warranties in respect of Tax contained in paragraph 20 of
Schedule 5, and notwithstanding any other provision of this Agreement,
shall not operate to limit or exclude any breach as a result of fraud,
gross negligence or fraudulent misrepresentation on the part of all or
any of the Vendors. The Purchaser's sole remedy in the event of any
misrepresentation or breach of warranty shall be as provided in this
Agreement. The representations and warranties are given to the
Purchaser and VRA only.
9.2 For the avoidance of doubt, notwithstanding any other provision in this
Agreement to the contrary (other than (a) any liability for alleged
fraud, gross negligence or fraudulent misrepresentation or (b) any
liability pursuant to the Tax Warranties and the Tax Covenant), no
individual Vendor shall be obligated to compensate the Purchaser for
losses resulting from any misrepresentation or breach of any warranty
made by the Vendors under this Agreement in an amount greater than the
cumulative total of the value of that Vendor's holding of Consideration
Shares (valued in terms of Clause 9.2.2) plus the net proceeds of sale
(subject to any subsequent tax credit available) received by the Vendor
in respect of any Consideration Shares issued to that Vendor under this
Agreement and which have been sold or transferred and the relevant
date. With respect to each individual Vendor (other than Skanditek
Industriforvaltning AB and Syngenta Seeds AB), compensation shall be
calculated after deduction of any tax liability incurred by that Vendor
as a direct result of that Vendor satisfying his obligations in respect
of a breach of warranty to the Purchaser pursuant to Clause 8.9,
provided that:-
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9.2.2 the total value of that Vendor's holding of Consideration Shares shall
be calculated on the basis of a Market Value being the average Market
Value in the 4 weeks immediately preceding the date of the Purchaser's
claim;
9.2.3 that Vendor has exercised his best efforts to minimise his tax
liability (including, without prejudice to the foregoing generality, by
utilising any losses or reliefs available to that Vendor); and
9.2.4 that Vendor has exhibited to the Purchaser's satisfaction evidence of
that Vendor's tax liability as aforesaid.
9.3 For the avoidance of any doubts, it is explicitly agreed that with the
exception of any liability of the Vendors under the Tax Warranties and
the Tax Covenant each party shall bear any liability for any tax that
may directly or indirectly be levied on it in connection with the
transaction contemplated by this Agreement.
9.4 The Purchaser shall not be entitled to bring any claim against the
Vendors for any misrepresentation or breach of any warranties under
this Agreement (with the exception of any claim under the Tax Covenant)
unless a notice in writing of any such claim has been given by the
Purchaser to each Vendor as soon as reasonably practicable but in no
event later than 45 days after the date when the Purchaser becomes
aware of any circumstance giving rise to a claim. The written notice
shall be accompanied by reasonable particulars thereof specifying the
nature of the misrepresentation or breach giving rise to the claim and,
so far as practicable, the amount claimed in respect thereof.
9.5 The Vendors undertake to notify the Purchaser in writing as soon as
practicable in respect of any matter which may give rise to a breach of
warranty hereunder.
9.6 The Purchaser's right to claim for misrepresentation or breach of
warranties (with the exception of those related to Tax) shall be made
prior to the expiry of the 24 month period immediately following the
Completion Date and in relation to warranties in respect of Tax shall
be made prior to the expiry of the (84) month period immediately
following the Completion Date, on which dates the Vendors liability
hereunder shall expire. For the avoidance of doubt, a claim which has
been notified to the Vendors whether contingent or otherwise shall
remain valid and enforceable notwithstanding expiry of the foregoing
time periods
The Purchaser shall not be entitled to make claims for
misrepresentation or breach of warranties if the Purchaser or its
advisers prior to or on the date of this Agreement had knowledge of the
misrepresentations or breach.
9.7 Upon the Purchaser becoming aware of any third party claim, action or
demand or matter likely to give rise to any of these in respect of the
warranties under this Agreement for which the
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Vendors may be liable, the Purchaser shall, or shall procure that the
relevant Group Companies shall:
9.7.1 as soon as reasonably practicable give written notice thereof
to each of the Vendors;
9.7.2 meet with the Vendors and attempt to agree a course of action,
it being agreed by all parties that this shall however be
determined at the sole discretion of the Purchaser and in the
event of any disagreement the decision of the Purchaser shall
prevail.
9.8 The Purchaser shall not be entitled to recover more than once in
respect of any individual breach of the warranties under this
Agreement.
9.9 The Vendors shall be reimbursed by the Purchaser in respect of any sums
paid to the Purchaser in respect of any successful claim against them
for a misrepresentation or breach of warranty under this Agreement, but
only to the extent and for the amount that the individual claim has
been or is made good or is otherwise compensated whether by insurance
or otherwise.
9.10 In addition to what is otherwise expressed in this Agreement, no claim
for any misrepresentation or breach of any warranty under this
Agreement shall be brought by the Purchaser against the Vendors:
(i) if and to the extent that any such claim occurs as a result of any
legislation not in force at the date hereof, or which takes effect
retrospectively, or occurs as a result of any increase in the rate of
tax in force at the date hereof or any change in the practice of the
relevant tax authorities;
(ii) if and to the extent that any such claim occurs as a result of any act,
omission or transaction carried out at the request of or with the
express written consent of the Purchaser before the Completion Date but
excluding any act, omission or transaction undertaken to mitigate loss,
remedy or prevent any matter which may or did give rise to any
liability on the part of the Group or a misrepresentation or breach of
warranty; and
(iii) if and to the extent that any such claim would not have arisen but for
an act, omission or transaction carried out by the Purchaser, or
persons deriving title from the Purchaser or the Group Companies after
the Completion Date but excluding any act, omission or transaction
undertaken to mitigate loss, remedy or prevent any matter which may or
did give rise to any liability on the part of the Group or any
misrepresentation or breach of warranty.
9.11 No matter shall be the subject of a claim for any misrepresentation or
breach of warranties under this Agreement to the extent that allowance,
provision or reserve (whether of a specific or of a general nature) has
specifically been made for such matter, in the Accounts or Management
Accounts.
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9.12 Irrespective of what is stated elsewhere in this Agreement, any actual
or potential liability of the Vendors arising from this Agreement shall
be apportioned according to received Consideration and shall thus not
be joint and several.
10 RESTRICTIVE COVENANTS
To protect the Purchaser's investment in the Company and the Company's
Intellectual Property Rights and the goodwill attached to the business
of the Company each Vendor shall execute and deliver to the Purchaser
at Completion a Restrictive Covenant.
11 CONFIDENTIALITY
11.1 Subject to Clause 11.3 and Clause 14 (Announcements), each of the
Vendors and the Purchaser shall treat as strictly confidential all
information received or obtained as a result of entering into or
performing this Agreement which relates to:
11.1.1 the negotiations relating to this Agreement or any document
referred to in this Agreement; or
11.1.2 the provisions or subject matter of this Agreement or any
document referred to in this Agreement; or
11.1.3 in the case of the Vendors, the Purchaser or any member of the
Purchaser's group, and in the case of the Purchaser, each of
the Vendors and the business carried on by all or any of them.
11.2 Subject to Clause 11.3 and Clause 14 (Announcements), the Vendors shall
before and after Completion:
11.2.1 not make use of nor disclose to any person any Know How;
11.2.2 not make use of nor disclose to any person any Confidential
Information;
11.2.3 take all reasonable steps to prevent the use and/or disclosure
of Know How and Confidential Information.
11.3 Any of the Vendors or the Purchaser may disclose information which
would otherwise be confidential if and to the extent:
11.3.1 required by the law of any relevant jurisdiction or for the
purposes of any judicial proceedings; or
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11.3.2 required by any recognised investment exchange or by any
regulatory or governmental body, including but not limited to
the US Securities and Exchange Commission, to which either
party is subject or submits; or
11.3.3 the information is disclosed on a strictly confidential basis
to that party's professional advisers, auditors or bankers for
the purpose of advising that party in connection with this
Agreement provided that such disclosure is subject to the
terms set out in Clauses 11.2.1, 11.2.2 and 11.2.3; or
11.3.4 the information is disclosed to that party's directors,
officers or employees or members of that party's group or to
an Employee whose function requires that such information is
disclosed to him provided that in each case such disclosure is
subject to the terms set out in Clauses 11.2.1, 11.2.2 and
11.2.3; or
11.3.5 the information has come into the public domain otherwise than
through a fault of that party; or
11.3.6 the other party has given prior written consent to the
disclosure; or
11.3.7 required to enable that party to enforce its rights or
remedies under this Agreement,
provided that any such information disclosed pursuant to Clauses 11.3.1
and 11.3.2 shall be disclosed only after consultation (where
practicable) with the other party.
12 PENSIONS
Clause 19 of the Warranties apply in relation to Pensions.
13 TAX COVENANT
The Warranties and the provisions of Schedule 8 (Tax Covenant) apply in
relation to Tax.
14 ANNOUNCEMENTS
14.1 Subject to Clause 14.2, neither the Vendors nor the Purchaser shall
make or issue at any time (whether before or after Completion) any
announcement, circular or other publicity relating to any matter
referred to in this Agreement without the other party's prior written
approval to the form and content of such announcement, such approval
not to be unreasonably withheld or delayed.
14.2 Clause 14.1 does not apply to any announcement, circular or other
publicity:
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14.2.1 required to be made by VRA or the Purchaser by the law of any
relevant jurisdiction or by the rules or regulations of any
recognised investment exchange or of any regulatory or
governmental body including, but not limited to the US
Securities and Exchange Commission, to which either party is
subject or submits; or
14.2.2 which is in the agreed terms made or sent by or on behalf of
the Purchaser after Completion advising employees, customers,
suppliers or agents of each Group Company of the change in
control of the Group.
15 FURTHER ASSURANCE
15.1 At all times (whether before or after Completion) each Vendor shall (at
his or her own cost and expense) do or procure to be done all
reasonable acts and things and/or execute or procure the execution of
all documents reasonably required of him by the Purchaser which are
necessary to vest in the Purchaser or its nominee(s) the Shares and to
give the Purchaser the full benefit of the provisions of this
Agreement.
15.2 At all times (whether before or after Completion) the Purchaser shall
(at its own cost and expense) do or procure to be done all reasonable
acts and things and/or execute or procure the execution of all
documents reasonably required of it by the Vendors which are necessary
to vest in the Vendors or their nominee(s) the Consideration Shares and
to give the Vendors the full benefit of the provisions of this
Agreement.
15.3 At all times (whether before or after Completion) each Vendor shall (at
his or her own cost and expense) provide or procure to be provided to
the Purchaser and its representatives, agents and advisers all such
information relating to the business, assets, liabilities, affairs and
records of the Company and its Subsidiaries as he or she may have in
his or her possession or under his or her control as the Purchaser or
its representatives, agents or advisers may from time to time
reasonably require and, for this purpose, shall give the Purchaser and
its representatives, agents and advisers full access to, and permit
them to copy, all such information.
16 TIME NOT OF THE ESSENCE
Time is not of the essence of this Agreement but following failure by
any party to comply with any provision of this Agreement time may be
made of the essence by any other party giving to the party in default
two Business Day's notice to that effect.
17 NOTICES
17.1 Any notice or other communication (a "NOTICE") given under, or in
connection with, this Agreement shall be in writing, signed by a person
duly authorised by the sending party and shall be addressed to the
party to which the notice is to be sent, as set out below:
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17.1.1 for notices to a Vendor, to the address given for that Vendor
in Schedule 1 or at such other address or facsimile number as
he or she may from time to time have notified to the other
parties in accordance with this Clause; and
17.1.2 for notices to the Purchaser shall be sent to both the
Purchaser and the Purchaser's Solicitors at the undernoted
addresses
Viragen (Europe) Limited
Address: FAO: Xxxxxx X. Xxxxxx
Viragen (Europe) Limited
000 XX 00xx Xxxxxx-
Xxxxx 000 Xxxxxxxxxx
XX00000
XXX
Facsimile No: 001 954 233 1416
Dundas & Xxxxxx
Address: FAO: Xxxx X. Xxxxxxxxx
Dundas & Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx
X0 0XX
Xxxxxx Xxxxxxx
Facsimile No: x00 000 000 0000
17.2 Notices may be delivered personally or sent by first class pre-paid
recorded delivery or registered if sent in the UK to another address in
the UK post (or by air mail if to or from an address outside the United
Kingdom) or by facsimile to the party to be served at its address set
out in this Agreement or at such other address or facsimile number
notified from time to time by that party by written notice to the other
parties.
17.3 In the absence of evidence of earlier receipt, and subject to Clause
17.5, a notice shall be deemed to have been served:
17.3.1 if delivered personally, when left at the address of the
relevant party;
17.3.2 if sent by first class post, two Business Days after posting
it or, if sent by air mail, five Business Days after posting
it; and
17.3.3 if sent by facsimile, upon receipt of a confirmation of full
transmission slip (subject to such notice also being posted on
the same day in the manner specified in Clause 17.1).
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17.4 Any notice given to two or more of the Vendors shall be deemed to be
given to each of the Vendors.
17.5 If a notice or communication is given or deemed to have been given on a
non-Business Day it shall be deemed to have been served on the next
Business Day.
18 ASSIGNMENT
18.1 None of the Vendors shall assign or transfer, or purport to assign or
transfer, any of their rights or obligations arising under this
Agreement without the prior written consent of the other Vendors and of
the Purchaser (such consent not to be unreasonably withheld or
delayed).
18.2 Subject to Clause 18.3, the Purchaser shall not assign or transfer, or
purport to assign or transfer, any of its rights or obligations arising
under this Agreement without the prior written consent of the Vendors
(such consent not to be unreasonably withheld or delayed).
18.3 The Purchaser may at any time assign or transfer all or any part of its
rights arising under this Agreement to any other company which is for
the time being a member of the same group of companies as the Purchaser
on terms that if any such assignee ceases to be a member of that group
then such rights shall be assigned or transferred to the Purchaser or a
continuing member of the Purchaser's group, the Purchaser shall procure
that any such assignee shall comply with all obligations of the
Purchaser in terms of this Agreement.
19 COSTS
The Vendors and the Purchaser shall each pay their own costs, charges
and expenses in relation to the negotiation, preparation, execution and
implementation of this Agreement.
20 ENTIRE AGREEMENT
This Agreement (together with the documents referred to in it or
executed at Completion) and the Confidentiality Agreement between the
parties constitute the entire agreement and understanding between the
parties with respect to its subject matter and replace and supersede
all prior oral and written agreements, understandings, representations
and correspondence regarding such subject matter.
21 VARIATION
No variation of this Agreement or any of the documents in the agreed
form shall be effective unless made in writing and signed by or on
behalf of each of the Vendors and the Purchaser.
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22 SURVIVAL OF PROVISIONS
Notwithstanding Completion, the provisions of this Agreement (and in
particular, without limitation, Clause 11 (Confidentiality) the
Warranties and the Tax Covenant) shall, to the extent that they remain
to be performed or are capable of subsisting, remain in full force and
effect and shall be binding on, and enforceable by, each of the Vendors
and the Purchaser or their respective successors.
23 INVALIDITY
23.1 If a provision of this Agreement is held to be illegal, invalid or
unenforceable such provision shall, to that extent, be shall be
modified in order to render it legal, valid and enforceable and, if
that is not possible, such provision shall to that extent be deemed not
to form part of this Agreement and the legality, validity and
enforceability of the remainder of this Agreement shall not be
affected.
23.2 If a liability of one or some but not all of the Vendors is or becomes
illegal, invalid or unenforceable in any respect that shall not affect
the liabilities of the other Vendors under or pursuant to this
Agreement.
24 WAIVERS
24.1 No failure to exercise, and no delay in exercising, any right or remedy
in connection with this Agreement shall operate as a waiver of that
right or remedy. No single or partial exercise of any right or remedy
under this Agreement shall preclude any other or further exercise of
that right or remedy or the exercise of any other right or remedy. A
waiver of any breach of this Agreement shall not be deemed to be a
waiver of any subsequent breach.
24.2 Notwithstanding any rule of law or equity to the contrary, a release,
waiver or compromise or other arrangement or indulgence which the
Purchaser agrees to or effects in relation to one of the Vendors under
or in connection with this Agreement shall not affect the Purchaser's
rights or remedies as regards any of the other Vendors.
25 COUNTERPARTS
This Agreement may be entered into in any number of counterparts and by
the each of the Vendors and the Purchaser on separate counterparts, but
shall not be effective until each such party has executed and delivered
at least one counterpart. Each counterpart, when executed and
delivered, shall constitute an original, but all the counterparts shall
together constitute one and the same instrument.
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26 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law, although the parties acknowledge that (a) in relation to
certain Warranties (but only insofar as expressly stipulated in
Schedule 5) that the Vendors are warranting compliance with Swedish law
(b) the Warranty limitations set out in Clause 9 are subject to Swedish
law and (c) notwithstanding any provisions to the contrary in this
Agreement the transfer of Shares must be valid under Swedish law.
27 SERVICE OF PROCESS
Any legal action arising out of, or in connection with, this Agreement
may be commenced against any of the Vendors or the Purchaser by
proceedings being served on such Vendor or the Purchaser (as
appropriate) by being delivered in accordance with Clause 17 (Notices).
Nothing in this Clause affects the right to serve process in any manner
permitted by law.
EXECUTED by or on behalf of the parties on the date which first appears in this
Agreement.
SIGNED by XXXXX XXXX in the presence of:
Signature of Witness:
--------------------------- --------------------------
Full name:
--------------------------------------
Address:
----------------------------------------
------------------------------------------------
SIGNED by XX XXXXX
in the presence of:
Signature of Witness:
--------------------------- --------------------------
Full name:
--------------------------------------
Address:
----------------------------------------
------------------------------------------------
SIGNED by XXXXXX XXXXXXX
in the presence of:
Signature of Witness:
--------------------------- --------------------------
Full name:
--------------------------------------
Address:
----------------------------------------
------------------------------------------------
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SIGNED by ORJAN STRANNEGARD
in the presence of:
Signature of Witness:
--------------------------- --------------------------
Full name:
--------------------------------------
Address:
----------------------------------------
------------------------------------------------
SIGNED by XXXX XXXXXX
in the presence of:
Signature of Witness:
--------------------------- --------------------------
Full name:
--------------------------------------
Address:
----------------------------------------
------------------------------------------------
SUBSCRIBED for and on behalf of SKANDITEK INDUSTRIFORVALTNING AB
by
in the presence of:
Signature of Witness:
--------------------------- --------------------------
Full name:
--------------------------------------
Address:
----------------------------------------
------------------------------------------------
SUBSCRIBED for and on behalf of SYNGENTA SEEDS AB
by
in the presence of:
Signature of Witness:
--------------------------- --------------------------
Full name:
--------------------------------------
Address:
----------------------------------------
------------------------------------------------
SIGNED by XXXX XXXXXXXX
in the presence of:
Signature of Witness:
--------------------------- --------------------------
Full name:
--------------------------------------
Address:
----------------------------------------
------------------------------------------------
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EXECUTED for and on behalf of VIRAGEN (EUROPE) LIMITED
by Xxxxxx X. Xxxxxx, Secretary in the presence of:
Signature of Witness:
--------------------------- --------------------------
Full name:
--------------------------------------
Address:
----------------------------------------
------------------------------------------------
EXECUTED for and on behalf of VIRAGEN INC
by Xxxxxx X. Xxxxxx, Executive Vice President,
Secretary/Director in the presence of:
Signature of Witness:
--------------------------- --------------------------
Full name:
--------------------------------------
Address:
----------------------------------------
------------------------------------------------
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SCHEDULE 1 This is the Schedule referred to in
THE VENDORS the Share Purchase Agreement between
Xxxxx Xxxx and Others, Viragen
(Europe) Limited and Viragen Inc.
(1) (2) (3)
VENDORS' NAMES AND ADDRESSES NUMBER OF SHARES PROPORTION OF CONSIDERATION
Xxxxx Xxxx, 450401-7155, 6446 32.23
Gimoplan 5A, 902 42 Umea
Xx Xxxxx, 431225-4933, 1890 9.45
Xxxxxxxxxxxx 00X, 000 00 Xxxx
Xxxxxx Xxxxxxx, 310524 - 2675, 1575 7.875
Xxxxxxxxxxxxx 00, 000 00 Xxxxxxxxxx
Orjan Strannegard, 360419-5036, 1401 7.005
Xxxxxxxxxxxx 0, 000 00 Xxxxxxxx
Xxxx Xxxxxx, 290317-9014, 1575 7.875
Xxxxxxxx 0, 000 00 Xxxxxxxxxx
Xxxxxxxxx Xxxxxxxxxxxxxxxxxxx XX, 0000 16.85
556235-4141
Xxxxxxxxxxxxxxxxxxx 00,
000 00 Xxxxxxxxx
Syngenta Seeds AB, 556113-6481, 1760 8.8
Xxx 000, 000 00 Xxxxxxxxxx
Xxxx Xxxxxxxx, 421205-8715, 1983 9.915
Xxxxxxxxxxxx 00, 000 00 Xxxx
------ -----
20,000 100%
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SCHEDULE 2
THE COMPANY
1 Registered number: 556253-7877
2 Date and place of registration: 19.12.1984:
3 Previous company names: Aktiebolaget Grundstenen 22467 (date of
registration 19.12.1984)
4 Registered Office: (Box 7979) Xxxxxxxxxxx 00, 000 00 Xxxx, Xxxxxx
5 Authorised share capital: 2,000,000 SEK
6 Issued share capital: 20,000 SEK
7 Shareholders' names and holdings: as detailed in Schedule 1
8 Directors' names and addresses:
450401-7155 Hakan Xxxxxx Xxxx, Gimoplan 5A, 902 42 Umea
431225-4933 Bo Xxxxxx Xxxxx, Bofinksvagen 16A, 902 51 Umea
421705-8715 Xxxx Xxxx Xxxxx Xxxxxxxx, Nytorgsgatan 14, 903
30 Umea
350202-2753 Per-Xxxx Xxxxx, Xxxxxxx, (0) Xxxxxxxxxxxxxx
00, 000 00, Xxxxxxxxxxx
310524-2675 Xxxxxx Xxxx Xxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00,
000 00 Sodertalje
360419-5036 Orjan Xxxx Xxxxxxxxxxx, Xxxxxxxxxxxx 0, 000 00
Xxxxxxxx
290317-9014 Xxxx Xxxx Xxxxxx, Xxxxxxxx 0, 000 00 Xxxxxxxxxx
640725-0197 Johan Patrik Tigerschiold, Xxxxxxxxxxx 0, 000
00 Xxxxxxxxx
Managing Director
431225-4933 Bo Xxxxxx Xxxxx, Bofinksvagen 16A, 902 51 Umea
9 Registered financial year: 1st January to 31st December
10 Auditors: Xxxxx Xxxxxxx Xxxxx, Kronbodsvagen 4, 903 63 Umea
(480202-6635)
11 Deputy Auditors: Xxxxxxx Xxxxxxx Xxxxxxxx
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12 Bank account details: Nordea/Nordbanken AB, Xxx 00, X-000 00, Xxxx,
Xxxxxx A/C No. 30407701206 and 39687732121/(DEM)
13 Loan facilities:
Loan facilities /Loans to the Company/
---------------------------------------------------------------------------------------
AMOUNT PAYMENTS
LENDER NAME CONTRACT SEK INTEREST (AMOUNT AND
AND ADDRESS DATE/TERM MILLION RATE (%) DUE DATE)
---------------------------------------------------------------------------------------
Credit facility 1997-12-16 8,4 0,5% on Interest payments
(account number - 1997-12-31 the total quarterly
3040 77 01206) from with amount and
NORDBANKEN Umea prolongation 5,95% on
of 12 months the amount
withdrawn
---------------------------------------------------------------------------------------
Contingent credit 1995-05-08 3 of which Xxxxxx 90 + Amortization
facility (number and which 5% with payment of SEK
950053) from 1997-11-21 SEK adjustments 150,000 quarterly
NORRLANDSFONDEN. 1,252 was quarterly together with
Box 56 withdrawn interest payment.
971 03 Lulea during The loan shall be
for the financing of a 1997. No amortized during
development program. amount was 5 years from and
withdrawn including 1999.
during
1998, 1999 Amortization was
nor 2000. made during 2000 at
SEK 300,000.
---------------------------------------------------------------------------------------
Contingent credit 1999-06-16 At most Xxxxxx 90 + Amortization payment
facility (number SEK 4,5 of 7% with of SEK 225,000
990039) from which 90% adjustments quarterly from
Xxxxxxxxxxxxxxx Xxx 00 or SEK quarterly 2003-03-31 and
971 03 Lulea 4,05 have interest payment
only for clinical been quarterly from
trial of Interferon withdrawn. 1999-09-30
AlfaNative
29
32
----------------------------------------------------------------------------------------
Credit facility 1999-06-29 - 6,5 Flexible in Payments are drawn
(number 3040 85 80968) 1999-09-30 accordance automatically from
from Nordbanken AB with with the account with
(publ) in connection prolongation interest Nordbanken.
with the acquisition of 3 months rates of SEK 260,000 fall due
of the production Nordbanken, after one year. SEK
facility. which was 4% 5,200,000 remain
on June 29, after 5 years. The
1999. duration of the loan
is 25 years.
----------------------------------------------------------------------------------------
Contingent loan The loan
facility (number amounts to
000029) from SEK 5 of
Norrlandsfonden, which
though only for the nothing
purpose of clinical has been
trial of IgY (the used.
development of peroral
medical products).
----------------------------------------------------------------------------------------
Royalty Agreement The agreement
(number 88/098) with terminates
Norrlandsfonden 2005-12-31 at
the latest.
----------------------------------------------------------------------------------------
14 Charges:-
OUTSTANDING REGISTERED FLOATING CHARGES
-----------------------------------------------------------------------------
AMOUNT IN
DATE OF ISSUE SEK BEARER
-----------------------------------------------------------------------------
1985-08-07 400,000 Nordbanken, Umea
-----------------------------------------------------------------------------
1992-01-09 2,000,000 Nordbanken, Umea
-----------------------------------------------------------------------------
1992-01-09 2,000,000 Nordbanken, Umea
-----------------------------------------------------------------------------
1992-01-09 300,000 Nordbanken, Umea
-----------------------------------------------------------------------------
1992-01-09 2,000,000 Nordbanken, Umea
-----------------------------------------------------------------------------
1992-01-09 1,200,000 Nordbanken, Umea
-----------------------------------------------------------------------------
1992-01-09 650,000 Nordbanken, Umea
-----------------------------------------------------------------------------
1992-01-09 273,000 Nordbanken, Umea
-----------------------------------------------------------------------------
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1992-01-09 3,000,000 Nordbanken, Umea
-----------------------------------------------------------------------------
1992-01-09 450,000 Nordbanken, Umea
-----------------------------------------------------------------------------
TOTAL 12,273,000
-----------------------------------------------------------------------------
MORTGAGES IN REAL PROPERTY
The following mortgages has been issued in relation to Umea Formen 12:
------------------------------------------------------------------------------------------
DATE OF ISSUE AMOUNT IN SEK BEARER
------------------------------------------------------------------------------------------
1996-07-04 5,000,000 Nordbanken, Umea, Data mortgage deed
------------------------------------------------------------------------------------------
1996-07-04 4,000,000 Nordbanken, Umea, Data mortgage deed
------------------------------------------------------------------------------------------
1996-07-04 1,000,000 No bearer registered.
------------------------------------------------------------------------------------------
TOTAL 10,000,000
------------------------------------------------------------------------------------------
31
34
SCHEDULE 3
SUBSIDIARIES
ALFANATIVE AB
1 Registered number: 556505-1561
2 Date and place of incorporation: January 10, 1995
3 Previous company names: AB Skogsblomman 122
4 Principal trading business: Developing and marketing Interferon Alfanative
5 Authorised share capital: SEK 400,000
6 Issued share capital: SEK 100,000
7 Shareholders' names and holdings: BioNative AB, 100%
8 Issued loan capital: -
9 Directors' names and addresses: Xx Xxxxx, Xxxxxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxxxxxxx
10 Secretary's name and address:
11 Accounting reference date: Calendar Year
12 Auditors: Ernst & Young AB
13 Tax district and reference number: Sweden: County: 25, Community: 80
14 VAT registration number: SE 556505156101
15 Bank account details: Nordea 3040 17 01395
16 Loan facilities: -
17 Charges: -
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35
GALLUS AB
1 Registered number: 556442-6442
2 Date and place of incorporation: January 31, 1992
3 Previous company names: -
4 Principal trading business: Developing and producing drug related products
5 Authorised share capital: SEK 200,000
6 Issued share capital: SEK 100,000
7 Shareholders' names and holdings: BioNative AB, 100%
8 Issued loan capital: -
9 Directors' names and addresses: Xxxxx Xxxx, Xx Xxxxx, Xxxx Xxxxxxxx
10 Secretary's name and address:
11 Accounting reference date: Calendar Year
12 Auditors: Ernst & Young AB
13 Tax district and reference number: Sweden: County: 25, Community: 80
14 VAT registration number: SE 556442644201
15 Bank account details: Nordea 3040 18 10658
16 Loan facilities: -
17 Charges: -
33
36
SCHEDULE 4
COMPLETION DOCUMENTS (CLAUSE 6.2)
1 Duly executed transfers of the Shares in favour of the Purchaser
together with the relevant share certificates.
2 The statutory books of each Group Company duly written up to date as at
immediately prior to Completion, their certificates of incorporation
and certificates of incorporation on change of name (if any), the
shareholders register and all statutory and non-statutory registers and
minute books of the Group companies.
3 All financial and accounting books and documents of record of each
Group Company.
4 Bank statements dated not earlier than 2 Business Days before
Completion for all bank accounts of each Group Company together with
cash book balances of each Group Company as at Completion and
reconciliation statements reconciling such balances with the bank
statements.
5 A letter from each relevant bank in a form satisfactory to the
Purchaser evidencing the release and discharge of each guarantee and
charge of each Group Company to such bank.
6 A letter from each relevant bank and security in a form satisfactory to
the Purchaser confirming that none of the Encumbrances created in its
favour by any Group Company has crystallised and that none will
crystallise and be enforceable as a result of Completion.
7 A duly executed deed of acknowledgement in the agreed form that all
inter-group indebtedness which may be owing to any of the Vendors by
any Group Company has been discharged or, to the extent not discharged,
waived.
8 A duly executed deed of release releasing each Group Company from all
obligations and liabilities (whether actual or contingent) undertaken
by a Group Company to any of the Vendors or to a third party on behalf
of any of the Vendors.
9 All documents of title relating to investments owned by each Group
Company.
10 All documents of title relating to the Owned Intellectual Property
Rights.
11 Originals of such of the contracts, agreements and licences to which a
Group Company is a party as the Purchaser may require.
12 All deeds and documents of title relating to the Properties and up to
date rate and service charge receipts, insurance policies and premium
receipts, notices and other documents in respect of the Properties.
13 Written or other evidence satisfactory to the Purchaser of the matters
contained or referred to in paragraph 21 (Property) of Schedule 5
(Warranties) as the Purchaser may require.
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37
14 All Environmental Documentation (as defined in the environmental
Warranties in paragraph 22 in Schedule 5 (Warranties)).
15 The share register of the Company.
16 The share certificates relating to each and every share held by any
Group Company in any company, including any other Group Company.
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38
SCHEDULE 5
WARRANTIES (CLAUSE 8)
1 CORPORATE MATTERS
1.1 Each Group Company is a limited company incorporated under Swedish law
and has been in continuous existence since incorporation.
1.2 There has been due compliance with the all legal requirements in
connection with the formation of each Group Company and the conduct of
its business and with the allotment and issue of shares, debentures and
other securities and the payment of distributions and no notice or
allegation has been received that any of the foregoing is incorrect or
should be rectified.
SHARE AND LOAN CAPITAL
1.3 No Group Company has ever reduced its share capital or redeemed, repaid
or purchased any of its share capital or agreed to do so.
1.4 No Group Company has any outstanding loan capital and there is no
agreement, arrangement or option under which any person may now or at
any time call for the creation, allotment, issue, sale or transfer of
any loan or share capital of a Group Company or require any loan or
share capital of a Group Company to be put under option.
SUBSIDIARIES
1.5 The Company is the sole legal and beneficial owner of the whole of the
allotted and issued share capital of each Subsidiary (being a body
corporate) and each such share is fully paid or credited as fully paid.
1.6 The Company is the legal and beneficial owner of each Subsidiary (being
a subsidiary undertaking) to the extent set out in Schedule 3
(Subsidiaries).
1.7 Save as set out in Schedule 3 (Subsidiaries) the Company is not, and
has never been the legal or beneficial owner of any interest in any
person and has not agreed to acquire any such interest.
1.8 The Company has never been a subsidiary undertaking of any person.
BRANCH
1.9 No Group Company has any branch, agency, place of business or permanent
establishment outside Sweden or uses or has on its business stationery,
books, vehicles or advertisements, or otherwise conduct its business
under, any name other than its corporate name.
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39
1.10 No Group Company carries on business in partnership with any other
person or has agreed to acquire an interest in, or to become a member
of, any other person, joint venture, consortium, technical assistance
agreement, trade association or society, European Economic Interest
Group or other profit or income sharing agreement or arrangement.
AUTHORITY TO BIND
1.11 No person other than the directors of a Group Company acting as a board
of directors of that Group Company is authorised to act as agent for
that Group Company or to bind that Group Company.
1.12 No Group Company has given any person any power of attorney or any
other authority (express, implied or ostensible) which remains
effective to enter into any commitment on its behalf (other than to
Employees to enter into routine trading contracts in the usual course
of their duties).
1.13 No Group Company controls or takes part (nor have any of them agreed to
do so) in the management of any other person.
1.14 No Group Company has any liability as a former officer, director or
member of any person nor are there any circumstances in which such
liability could arise.
2 CAPACITY
2.1 This Agreement (and the other documents to be executed in accordance
with it) constitute, or will when executed constitute, binding
obligations of the Vendors in accordance with their terms.
2.2 Each Vendor and each Group Company has the requisite power, right and
authority to enter into and perform the obligations to be assumed or
performed by it in accordance with this Agreement and the other
documents to be executed in accordance with it.
2.3 Neither the execution nor the delivery nor the performance of this
Agreement (or any document to be executed in accordance with it) will,
so far as the Vendors are aware, result in:
2.3.1 a breach of any provision of the memorandum or articles of
association of any Group Company; or
2.3.2 a breach of, or constitute a default under, or require the
consent of a person under, any agreement or arrangement to
which any Vendor or any Group Company is bound; or
2.3.3 any party to an agreement or arrangement with a Group Company
being relieved of any of its obligations or entitled to
terminate any such agreement or arrangement; or
37
40
2.3.4 any customer or supplier ceasing to deal, or substantially
reducing the level of his dealings, with any Group Company or
terminating or reducing any present or future benefit or
privilege enjoyed by any Group Company; or
2.3.5 a breach of the terms of any Licence, judgement, order or
declaration of, or undertaking to, any court or governmental
agency or regulatory body by which any Vendor or any Group
Company is bound; or
2.3.6 any Licence being revoked, cancelled, suspended, varied or not
renewed or a Group Company losing the benefit of any asset,
grant, subsidy, right or benefit which it enjoys at the date
of this Agreement; or
2.3.7 the creation or imposition of an Encumbrance on, over or
relating to any of the Shares or any of the assets or
undertaking of a Group Company.
2.4 No person is entitled to receive from any Group Company any finders
fee, brokerage or commission in connection with this Agreement (or any
document to be executed in accordance with it).
3 INFORMATION AND DOCUMENTS
3.1 The information set out in this Agreement and/or disclosed in the
Disclosure Letter and all information supplied by or on behalf of the
Vendors or any Group Company to the Purchaser, its representatives,
agents or advisers before or during negotiations leading to this
Agreement is true, complete and accurate and not misleading and all
information which might reasonably affect a decision to purchase the
Shares on the terms contained in this Agreement has been disclosed to
the Purchaser in writing.
3.2 True, complete and accurate copies of all reports prepared in relation
to each Group Company's business, financial affairs, markets or assets
are attached to the Disclosure Letter.
MEMORANDUM AND ARTICLES OF ASSOCIATION
3.3 The copies of the constitution documents including the memorandum and
articles of association of each Group Company attached to the
Disclosure Letter are true, complete and accurate and have embodied in
or annexed to them copies of all resolutions and agreements which,
together with the memorandum and articles of association, fully set out
all the rights and restrictions attaching to each class of share in the
capital of each Group Company.
STATUTORY BOOKS
3.4 So far as the Vendors are aware, the statutory books of each Group
Company have been properly written up to date and contain a true,
complete and accurate record of all the matters
38
41
which should be contained in those books and registers, and no notice
or allegation that any of them is untrue, incomplete or inaccurate, or
should be rectified, has been received.
FILING
3.5 So far as the Vendors are aware, all returns, resolutions, forms,
particulars and other documents required to be filed with or delivered
to any other governmental agency or regulatory body by or on behalf of
each Group Company have been properly prepared and filed or delivered
within the requisite time limits.
POSSESSION AND STORAGE OF RECORDS AND DOCUMENTS
3.6 So far as the Vendors are aware, an executed copy of all agreements to
which each Group Company is a party and all documents of title relating
to each of the assets owned or used by each Group Company are in the
possession of or under the control of that Group Company. All such copy
agreements and documents are whole, legible, validly executed and (if
appropriate) duly stamped with the correct amount of stamp duty or
other required Tax.
4 ACCOUNTS
GENERAL
4.1 The Accounts have been prepared on a proper basis in accordance with
all applicable laws and with Swedish general accepted accounting
principals.
4.2 The Accounts have been prepared on bases consistent with the same bases
applied in the audited statutory accounts submitted for the preceding
three financial years.
4.3 The Accounts show a true and fair view of the state of affairs of each
Group Company and of the Group as a whole as at, and of the profits and
losses of each Group Company and of the Group as a whole for the
financial period ended on, the Accounts Date.
4.4 No Group Company is, or has during the five year period ended on the
Accounts Date been a party to any agreement, arrangement or transaction
pursuant to which the Group Company is or was entitled to receive a
financial advantage, or is or was obliged to incur or bear any costs,
liabilities (contingent or otherwise), risks or other expenditure of
any nature (including, without limitation, any "off balance sheet"
financing arrangements) which is not fully reflected in the Accounts or
has not been fully reflected in the Group Company's accounts for any
relevant period.
CONTENT OF ACCOUNTS
4.5 The Accounts include:
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42
4.5.1 all fixed assets valued at cost less depreciation since the
date of acquisition and, where necessary, provision for
impairment;
4.5.2 all stock (including raw materials and work in progress)
valued at the lower of cost and net realisable value and the
Accounts do not attribute any value to any obsolete, redundant
or excess stock or to any non-recoverable work in progress;
4.5.3 all slow moving stock and damaged stock at an appropriate
written down value;
4.5.4 all investments valued at cost less, where necessary,
provision for impairment;
4.5.5 all debtors, prepayments and other current assets valued at
the lower of cost and net realisable value after making full
and proper provision for all bad debts and doubtful debts and
all other amounts considered to be irrecoverable;
4.5.6 all liabilities and all capital and financial commitments of
each Group Company (whether actual, deferred, contingent,
quantified, disputed or otherwise and whether of an occasional
or seasonal nature) for which it is, or may become, liable up
to and including the Accounts Date, and the Accounts make full
and proper provision for, or in the case of contingent
liabilities and capital and financial commitments, full
disclosure of, all such liabilities and commitments;
4.5.7 all Tax which has been or may be assessed on each Group
Company or for which it is, or may become, liable up to and
including the Accounts Date (whether actual, deferred,
contingent, quantified, disputed or otherwise) and the
Accounts make full and proper provision for, or in the case of
contingent liability to Tax, full disclosure of, all Tax; and
4.5.8 in the notes full details of any other assets, liabilities and
contingent liabilities included in the Accounts.
DEPRECIATION
4.6 The bases and rates of depreciation and amortisation used in the
Accounts are the same as those used in the audited accounts of each
Group Company and the Group for the preceding three financial years and
are sufficient to ensure that each fixed asset of each Group Company
will be written down to nil by the end of its useful life.
TREND OF PROFITS
4.7 The results shown by the Accounts and by the profit and loss accounts
of each Group Company and the consolidated audited profit and loss
account of the Group for each of the preceding three financial years
have not been affected (except as disclosed in those accounts) by any
extraordinary, exceptional or non-recurring item, or by any transaction
of an unusual nature or
40
43
entered into otherwise than on normal commercial terms, or by any other
factor rendering the profit or loss for all or part of any period
covered by those accounts unusually high or low.
ACCOUNTING RECORDS
4.8 All proper and necessary books of account, ledgers, registers and
records have been fully, properly and accurately kept and completed by
each Group Company and accurately record and reflect (in accordance
with all applicable laws) all the assets and liabilities (actual and
contingent) of each Group Company and all transactions to which it has
been a party and each Group Company has operated adequate systems of
internal financial control in relation to its book keeping.
4.9 All of the books of account, ledgers, registers, records, data,
systems, controls and other information of each Group Company
(recorded, stored, maintained operated or held in whatever form or by
whatever means) (and including all means of access to all such
information) are owned exclusively by, and are in the possession of or
under the direct control of that Group Company.
5 SINCE THE ACCOUNTS DATE
5.1 Since the Accounts Date:
5.1.1 each Group Company has carried on its business in the ordinary
and usual course and in the same manner (as to nature, scope
and method) as in the past so as to maintain it as a going
concern;
5.1.2 there has been no adverse change in the financial or trading
position or prospects of a Group Company or the Group;
5.1.3 there has been no reduction in the monthly turnover (in terms
of volume or value) or gross or net profit margins of each
Group Company's and the Group's business (or any material part
of that business) as compared with such rates of turnover and
profitability for the corresponding months in the financial
year ended on the Accounts Date;
5.1.4 there has been no material change in the assets or liabilities
(including contingent liabilities) shown in the Accounts and
there has been no reduction in the value of the net assets of
any Group Company applying the same bases of valuation as used
in the Accounts;
5.1.5 there has been no reduction in the realisable value of any of
the assets nor any increase in the amount of any liability of
any Group Company, in either case which was included in the
Accounts and is still held or outstanding, as the case may be,
at the date of this Agreement;
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44
5.1.6 there has been no material change in the level of the stock
(including raw materials and work in progress) of any Group
Company and the current level of stock is adequate for each
Group Company's present requirements;
5.1.7 no items of stock included in the Accounts have been disposed
of for less than their value as stated in the Accounts or now
have a net realisable value of less than their value as stated
in the Accounts;
5.1.8 no Group Company has other than in the ordinary and usual
course of its business and for full value:
(a) acquired or disposed of, or agreed to acquire or
dispose of, any business or asset; or
(b) incurred or assumed, or agreed to incur or assume,
any liability (actual or contingent) or expense;
5.1.9 no Group Company has made or agreed to make any payment or
entered into or agreed to enter into any agreement,
arrangement or transaction otherwise than in the ordinary and
usual course of trading and for full value;
5.1.10 no Group Company has incurred, or agreed to incur, any
service, management, consultancy or similar charges;
5.1.11 no Group Company has entered into, or agreed to enter into,
any commitments involving capital expenditure exceeding
USD$50,000 in aggregate;
5.1.12 no debt or other receivable of a Group Company has been
written off, provided against (in whole or in part),
subordinated, discounted, factored or sold (or in any such
case, agreed so to be), and there is no indication that any
debt or other receivable now owing to a Group Company is bad
or doubtful;
5.1.13 all book debts shown in the Accounts have been realised for an
aggregate sum being not less than that shown in the Accounts
and no provision or reserve included in the Accounts has
proved to any extent to be inadequate and there are no matters
or circumstances which indicate that such provision or reserve
may prove to be inadequate;
5.1.14 no Group Company has borrowed or lent, or agreed to borrow or
lend, any money and no share or loan capital has been, or
agreed to be, created, allotted, issued, redeemed, purchased
or repaid by any Group Company;
5.1.15 no Group Company's business has been adversely affected by the
loss of, or change in terms of business with, (whether before
or after the Accounts Date) any contract or
42
45
customer or supplier or by any other factor not affecting
similar businesses and the Vendors are not aware of any
matters or circumstances which will or may have an adverse
effect on a Group Company's business;
5.1.16 no Group Company has declared, made or paid a dividend or
distribution except as provided in the Accounts;
5.1.17 no Group Company has reduced, cancelled, repaid or
re-organised any of its share capital, share premium or
capital redemption reserve; and
5.1.18 neither the members of any Group Company, nor any class of
them, has passed any resolution in addition to those taken at
the general shareholders' meeting held in respect of each
Group Company.
MANAGEMENT ACCOUNTS
5.2 The Management Accounts have been prepared using the same accounting
policies, practices and principles as those applied in, and on a basis
consistent with, the Accounts and all management accounts for each
Group Company for the preceding 24 months.
5.3 The Management Accounts give a true and fair view of the state of each
Group Company's affairs and of the results as at the Management
Accounts Date and:
5.3.1 fully disclose and make proper provision for all bad debts and
doubtful debts;
5.3.2 make full provision for all actual liabilities;
5.3.3 fully disclose and make proper provision for or note (in
accordance with generally accepted accounting practice and
principles) all contingent liabilities; and
5.3.4 are not affected by any unusual or non-recurring items
(including, without limitation, any exceptional items).
REGISTERED FINANCIAL YEAR
5.4 The registered financial year of the Company and the Subsidiaries is as
set out in Schedules 2 and 3 and has never been any other dates.
6 FINANCIAL COMMITMENTS AND BORROWINGS
BANK ACCOUNTS
6.1 Full details of all bank accounts maintained or used by each Group
Company, together with copies of all bank mandates, are set out in the
Disclosure Letter.
43
46
BANK CERTIFICATE
6.2 A statement certified by the Group's bankers of the credit or debit
balances of each Group Company's bank and deposit accounts as at a date
not more than two Business Days before the date of this Agreement has
been supplied to the Purchaser and the Group has no other bank or
deposit accounts not included in such statement. Since the date of such
statement no payment out of any account has been made, except for
routine payments in the ordinary and usual course of business, and the
balances are not substantially different from those shown in the
statement.
INDEBTEDNESS
6.3 Except as disclosed in the Accounts or the Disclosure no Group Company
has outstanding or has agreed to create or incur loan capital,
borrowing or indebtedness in the nature of borrowing including (without
limitation) a bank overdraft and an acceptance credit.
6.4 The total amount of loan capital, borrowing or indebtedness in the
nature of borrowing of each Group Company does not exceed:
6.4.1 its financial facilities; or
6.4.2 any borrowing limit imposed upon it by its bankers or other
lenders; or
6.4.3 any limitation on its borrowing or other powers contained in
its articles of association or any debenture or other document
binding upon it,
and the Disclosure Letter contains true, complete and accurate details
of all loan, overdraft and other financial facilities of each Group
Company.
6.5 Neither the Vendors nor any Group Company has done or omitted to do
anything which may prejudice or affect any of the Group Company's loan,
overdraft and other financial facilities.
REPAYMENT OF BORROWINGS
6.6 All of the Group's borrowings may be repaid (without any premium or
penalty) by the Group at any time on no more than 30 days' notice.
6.7 So far as the Vendors are aware, no event has occurred or been alleged
which has resulted or could result in any present or future borrowing
or indebtedness in the nature of borrowing of any Group Company
becoming due, or capable of being declared due and payable, prior to
its date of maturity and no event has occurred which is (or would be
with the giving of notice and/or the passing of time or otherwise) an
event upon which the Company's financial facilities have or could
become immediately repayable.
6.8 So far as the Vendors are aware, no event has occurred or been alleged
which will or could result in an Encumbrance being created or
constituted in connection with any borrowing,
44
47
indebtedness in the nature of borrowing, guarantee, indemnity,
suretyship or other similar commitment of any Group Company or becoming
enforceable (or would become enforceable with the giving of notice
and/or the passing of time or otherwise).
GUARANTEES
6.9 No Group Company is a party to or liable (including, without
limitation, contingently) under any guarantee, indemnity, bond or other
similar commitment and there is not outstanding any such guarantee,
indemnity, bond or other similar commitment given by or for the benefit
of any Group Company.
ENCUMBRANCES
6.10 No Group Company has created, or agreed to create, any Encumbrance over
all or any of its property, assets, undertaking, goodwill, reserves or
share capital nor has any person made any claim to be entitled to any
such Encumbrance.
GRANTS
6.11 Full particulars are contained in the Disclosure Letter of all
investment, allowances, subsidies, loans, grants and financial aid of
any kind applied for or received or receivable by each Group Company
from any supranational, national or local authority or government
agency and nothing has been done or agreed, or omitted to be done, as a
result of which any such investment, allowance, subsidy, loan, grant or
financial aid is or may be liable (in whole or in part) to be refused,
refunded, forfeited or clawed back.
7 ASSETS
OWNERSHIP
7.1 Save for trading stock disposed of, debtors settled and pre-payments
utilised, all in the ordinary and usual course of business, the assets
included in the Accounts, or acquired or created by a Group Company
since the Accounts Date, and all other assets (including, without
limitation, plant, machinery, vehicles and equipment) used each Group
Company (subject to paragraph 7.3) continue to exist and are legally
and beneficially owned by the Group Company free from any Encumbrance,
are in Sweden and in the possession of or under the exclusive control
of the Group Company and, where subject to a requirement for a Licence,
are duly licensed or registered in the sole name of the Group Company.
7.2 Each Group Company is able to prove title to all the assets owned by
it.
7.3 Full particulars of all agreements for lease, rent, hire, hire
purchase, credit sale or conditional sale to which a Group Company is a
party or under which it may be liable are disclosed in, and copies of
all such agreements are attached to, the Disclosure Letter.
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7.4 No Group Company has purchased, or agreed to purchase, any stock,
goods, materials or other assets on terms that title in it does not
pass until full payment is made or all indebtedness discharged or any
other condition is met.
7.5 No Group Company has received any sum, property or benefit, the payment
or transfer of which is liable to be avoided, or which is liable to be
recovered from it under any rule of law and does not hold any sum,
property or right on behalf of a third party.
7.6 The assets owned or leased by each Group Company comprise all the
assets necessary or desirable for the continuation of the business of
each Group Company as carried on before Completion.
7.7 The asset register kept by each Group Company, a copy of which is
attached to the Disclosure Letter, sets out a true, complete and
accurate record of all the plant, machinery, vehicles and equipment
owned, held or used by it.
CONDITION
7.8 The plant, machinery, vehicles, equipment and other assets owned, held
or used by each Group Company are in good repair and condition,
regularly maintained, fully serviceable and suitable for the purposes
for which they are used and are not dangerous, inefficient, obsolete or
surplus to requirements and will not be in need of renewal, replacement
or addition during a period of six months after Completion.
STOCKS, RAW MATERIALS AND CONSUMABLES, WORK IN PROGRESS, FINISHED GOODS
AND GOODS FOR RE-SALE
7.9 The stocks of finished goods and goods for re-sale of each Group
Company are of good and marketable quality, undamaged and saleable in
the ordinary course of its business in accordance with its current
price list, without rebate or allowance to a purchaser.
7.10 The stocks comprising raw materials, consumables, work in progress,
packaging and promotional material, finished goods and goods for
re-sale held or ordered by each Group Company are at a level
appropriate for each Group Company's current and anticipated level of
business and are not slow moving, out of date, out of demand or
fashion, obsolete or redundant.
PRODUCT LIABILITY
7.11 No Group Company has manufactured, sold, supplied or provided any goods
or services (and there are no goods in stock or in the course of design
or production) which do not (or will not) comply with all applicable
laws, regulations or standards or which are (or will be) dangerous,
injurious, defective or likely to cause harm, loss or damage.
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7.12 No Group Company has given any guarantee or warranty or made any
representation in respect of any goods or services manufactured, sold,
supplied or provided (or contracted to be manufactured, sold, supplied
or provided) by it save for any warranty or representation implied by
law.
7.13 No Group Company has received notice of any claim alleging any defect
in, or unsatisfactory quality of, or lack of fitness for purpose of,
any goods manufactured, sold, supplied or provided (or in the course of
design or production) by the Group Company and there are no
circumstances which could give rise to any such claim.
All goods manufactured, sold, supplied or provided (and all stocks of
such goods) have been labelled and/or packed (and accompanied by
instructions, if applicable) in compliance with all applicable laws,
regulations and standards and do not infringe the Intellectual Property
Rights of any person.
DEBTS
7.14 None of the debts which are shown in the Accounts, or which have arisen
since the Accounts Date, has been outstanding for more than 60 days
from its due date for payment or has been released such that the debtor
has paid, or will pay, less than the full amount of his debt, and all
debts have realised, or will in the normal course of collection,
realise their full value as set out in the Accounts or in the books of
the Group Company (subject to any provision made in the Accounts for
bad and doubtful debts) within 60 days of their due date for payment.
7.15 No single debtor, taken together with any connected person to that
debtor, owes any Group Company an aggregate amount which is greater
than 10 per cent. of the total value of all debts owing to such Group
Company or the Group.
7.16 No Group Company has subordinated, discounted, factored or sold (or in
any such case agreed to do so) any of its debts.
8 INSURANCE
8.1 Each Group Company is, and has at all material times been, fully
covered by valid insurance against all risks normally insured against
having regard to the type of business carried on and the assets and
Properties owned or used by it, including (without limitation) adequate
insurance:
8.1.1 for the full replacement or reinstatement value of such
business, assets and Properties;
8.1.2 against liability to third parties and the public (including
product liability and environmental liability); and
8.1.3 against loss of profits for a period of not less than six
months
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and a list of all insurances of each Group Company is contained in, and
copies of all such policies of insurance of each Group Company are
attached to, the Disclosure Letter (the "POLICIES").
8.2 All of the Policies are valid and enforceable and all premiums due have
been duly and punctually paid and so far as the Vendors are aware
nothing has been done, or omitted to be done, which makes or might make
any of the insurance policies void or voidable.
8.3 the Group has no interest in, and is not a beneficiary under, and does
not pay and is not liable to pay any part of the premiums on, any
policy of life assurance.
8.4 In the case of those Properties held on lease, tenancy agreement or
licence and where a Group Company is responsible for maintaining
insurance the policy conforms in all respects with the requirements of
the lease, tenancy or licence.
8.5 None of the Policies is subject to any unusual restrictions or bonuses
or the payment of any premium in excess of the normal rate and no Group
Company has done, or omitted to do, anything which will or may result
in an increase in the premium payable for any Policy or whereby the
renewal of any Policy will or may be affected.
8.6 No claim is outstanding, and during the 12 month period ending on the
date of this Agreement no claims have been made, under any of the
Policies and, as at the date of this Agreement, there are no
circumstances or matters which will or might give rise to such a claim.
9 CONTRACTS AND COMMITMENTS
MATERIAL CONTRACTS
9.1 No Group Company is nor has been during the three year period ending on
the date of this Agreement a party to, or liable in respect of, and
none of the assets owned or used by a Group Company are affected by,
any agreement, arrangement or obligation which:
9.1.1 is of an onerous or unusual nature or is likely to be
unprofitable; or
9.1.2 was made otherwise than in the ordinary and usual course of
the business of the Company as carried on at the date of this
Agreement; or
9.1.3 involves discounts, overriders, rebates, allowances and other
special terms or similar arrangements offered or granted by or
to a Group Company to or by its customers or suppliers; or
9.1.4 constitutes or might constitute a transaction at an undervalue
or preference or involves, or might involve, an unauthorised
reduction of capital; or
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9.1.5 involves obligations or liabilities which by reason of their
nature or magnitude ought reasonably to be disclosed to the
Purchaser;
9.1.6 is not terminable by a Group Company on 60 days notice or less
without payment of compensation or which is unlikely to be
fully performed within three months from the date of this
Agreement; or
9.1.7 involves a capital commitment or annual expenditure in excess
of USD$10,000; or
9.1.8 is a distribution, supply, agency, franchising, management,
selling, marketing, purchasing, manufacturing, licensing,
collaboration or other similar agreement or arrangement; or
9.1.9 involves an obligation to buy or sell foreign exchange and no
Group Company has any outstanding commitments in foreign
exchange which are not covered by a hedging agreement; or
9.1.10 in any way restricts the freedom of a Group Company to carry
on business in any part of the world in such manner as it
thinks fit; or
9.1.11 may be terminated or varied by another party as a result of a
change in the control, management or shareholders of any Group
Company; or
9.1.12 is an offer, tender, proposal, bid, estimate or the like given
or made by a Group Company which is outstanding and capable of
giving rise to a contract by the unilateral act of a third
party or otherwise; or
9.1.13 was or ought to have been tendered in accordance with EU
procurement laws (and relevant national implementing
legislation).
STATUS OF CONTRACTS
9.2 Each contract of a material nature to which each Group Company is a
party is in full force and effect and has been duly complied with and
so far as the Vendors are aware nothing has occurred whereby any of
them is or could be subject to early termination.
9.3 So far as the Vendors are aware neither a Group Company nor any party
with whom a Group Company has entered into an agreement or arrangement
of a material nature has defaulted under the agreement or arrangement
9.4 No party with whom a Group Company has entered into an agreement or
arrangement of a material nature has given notice of its intention to
terminate, or has sought to repudiate or disclaim, any such agreement
or arrangement
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9.5 No Group Company has sold or disposed of any assets or agreed to
provide any services in circumstances such that it is, or may be, still
subject to any liability (whether contingent or otherwise) under any
representation, warranty, undertaking or indemnity given or agreed to
be given on or in connection with such sale or disposal or the
provision of such services.
ASSIGNABILITY
9.6 All of the contracts of each Group Company of a material nature except
those between a Group Company and the Employees are freely assignable
by the Group Company without the consent of any third party.
CUSTOMERS AND SUPPLIERS
9.7 During the 24 month period ending on the date of this Agreement not
more than five per cent. of any description of goods or services
supplied to or by a Group Company was supplied by or to any one person
or group of connected persons.
9.8 During the 24 month period ending on the date of this Agreement there
has been no material change in the basis or terms on which any person
is prepared to trade with or supply a Group Company (other than normal
price and quota changes) and no such change is likely.
9.9 No substantial customer or supplier of a Group Company has ceased, or
so far as the Vendors are aware indicated an intention to cease,
trading with or supplying a Group Company or has reduced, or indicated
an intention to reduce, substantially its level of trade with or
supplies to a Group Company and no such changes are likely.
10 CONNECTED PERSONS
10.1 So far as the Vendors are aware, there is not, and has not been during
the six year period ending on the date of this Agreement, any agreement
or arrangement (whether legally enforceable or not) to which a Group
Company is or was a party and:
10.1.1 in which any Vendor or any other Group Company or any director
(present or former) of any other Group Company or any person
connected with any of them is or was directly or indirectly
interested; or 10.1.2 which is or was not of an entirely arm's
length nature; or
10.1.3 which involved the acquisition of any asset or the benefit of
any right for a consideration otherwise than for full market
value at the date of such acquisition.
10.2 Neither the Vendors nor any person connected with any of them is
directly or indirectly interested in any person (other than a Group
Company) or any intellectual property which is or is likely to be or
become competitive with the business of a Group Company (save as the
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beneficial owner of any class of securities of any company listed on a
recognised investment exchange and in respect of which such Vendor or
such connected person is beneficially interested in less than three per
cent. of all the issued securities of that class).
10.3 There are no debts outstanding or contingent liabilities or any other
unfulfilled obligations (present or future, actual or contingent) owing
by or to a Group Company to or by the Vendors or any shareholder or
director (present or former) of a Group Company or any connected person
of any of them.
11 LICENCES
11.1 So far as the Vendors are aware, each Group Company has all Licences
required for or in connection with carrying on its business in the
place and in the manner in which such business is now carried on by
such Group Company, and particulars of all the Licences are disclosed
in, and copies of all the Licences are attached to, the Disclosure
Letter.
11.2 So far as the Vendors are aware, each Licence is valid, enforceable and
unconditional (or subject only to a condition which has been fulfilled
and under which no further action is required) and no expenditure or
work is or will be required to comply with, maintain or obtain a
Licence.
11.3 So far as the Vendors are aware, each Group Company has at all times
carried on its business in compliance with the terms and conditions of
each Licence and there are no facts or circumstances which indicate
that any Licence will or may be revoked, cancelled, suspended or not
renewed. No Licence is personal to any of the Vendors.
12 LITIGATION AND INVESTIGATION
12.1 N Group Company and no Employee or person for whose acts or defaults
the Company may be vicariously liable is involved, or has during the
two year period ending on the date of this Agreement been involved, in
any civil, criminal, administrative, arbitration, regulatory,
competition or antitrust or other proceedings, claims, investigations,
inquiries, actions (including disciplinary) or prosecutions in any
jurisdiction (each a "PROCEEDING").
12.2 So far as the Vendors are aware, no Proceedings are pending or
threatened by or against a Group Company or any Employee or any person
for whose acts or defaults a Group Company may be vicariously liable,
or in respect of which a Group Company is or may be liable to indemnify
or compensate any person or pay a penalty or a fine, and to the best of
the Vendors' knowledge, information and belief, no matters or
circumstances exist which might give rise to the same.
12.3 There is no outstanding judgement, order, decree, injunction, arbitral
award or decision of a court, tribunal, arbitrator, governmental agency
or other regulatory body in any jurisdiction against a Group Company or
any person for whose acts or defaults a Group Company may be
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vicariously liable and no Group Company has given any undertaking to
any court, tribunal, arbitrator, governmental agency, regulatory body
or other third party arising out of or in connection with any
Proceeding.
12.4 There is no claim outstanding between a Group Company and any of the
Vendors or any director (present or former) of a Group Company or any
person connected with any of them and to the best of the Vendors'
knowledge, information and belief, no matters or circumstances exist
which could give rise to any such claim.
13 INSOLVENCY
13.1 In relation to each Group Company:
13.1.1 no resolution has been proposed or passed (and no meeting has
been convened and no written resolution has been circulated
with a view to passing any resolution) for winding up or
administration or for the presentation of a petition for
winding up or an administration order or for a compromise or
composition or arrangement with creditors or any class of
them;
13.1.2 no petition has been presented nor has an order been made for
winding up or an administration order or interim order nor has
any application been made or order made for the appointment of
a provisional liquidator;
13.1.3 so far as the Vendors are aware, no application or order has
been made for the appointment of a receiver or an
administrative receiver or a manager or a trustee or other
similar officer;
13.1.4 no receiver, administrative receiver or manager has been
appointed a Group Company or any of its property or assets or
income or undertaking and no request for any such appointment
has been made;
13.1.5 no Encumbrance has been enforced and no floating charge has
crystallised, on or over, any of its property or assets or
income or undertaking and no event has occurred or will occur
by virtue of the execution and performance of this Agreement
and the documents referred to in it which would cause, or
entitle any person to cause, any of these things to happen;
13.1.6 no statutory demand has been served on a Group Company;
13.1.7 no procedure has been commenced by any competent person with a
view to the dissolution of the Company;
13.1.8 it has not stopped paying its debts as they fall due, is not
insolvent and is not unable to pay its debts;
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13.1.9 no attachment, sequestration, distress, execution, or other
process has been used, levied or put in force against any of
its property, assets (including leased assets and assets on
hire purchase), rights, income or undertaking;
13.1.10 there is no unfulfilled or unsatisfied judgement or decree or
order of any court or tribunal, or award of any arbitrator,
outstanding against it;
13.1.11 so far as the Vendors are aware, no meeting of its creditors
or any class of them has been held or summoned and no proposal
has been made for a moratorium, composition or arrangement in
relation to any of its debts, or for a voluntary arrangement;
and
13.1.12 so far as the Vendors are aware, no event analogous to any of
the foregoing has occurred in any jurisdiction.
13.2 So far as the Vendors are aware, no matters or circumstances exist
which might give rise to any of the events referred to in paragraph
13.1
13.3 In relation to each Vendor:
13.3.1 no petition has been presented nor has an order been made for
his or her bankruptcy or for the appointment of a receiver
over any of his or her property or assets or income or
undertaking, including his or her Shares, and no request for
any such appointment has been made;
13.3.2 no Encumbrance has been enforced and no floating charge has
crystallised, on or over, any of his or her property or assets
or income or undertaking, including his or her Shares no
attachment, sequestration, distress, execution or other
process or has been used, levied or put in force against any
of his or her property, assets (including leased assets and
assets on hire purchase), rights, income or undertaking,
including his or her Shares;
13.3.3 there is no unfulfilled or unsatisfied judgement or decree or
order of any court or tribunal, or award of any arbitrator,
outstanding against him or her; and
13.3.4 no event analogous to any of the foregoing has occurred in any
jurisdiction.
14 COMPETITION
14.1 No Group Company is party to an agreement, concerted practice or
arrangement and no Group Company is carrying on any practice which in
whole or in part contravenes or is invalidated by any competition,
antitrust, fair trading or similar legislation in the Sweden, the EU,
the European Economic Area or in any other jurisdiction in which it
carries on business or in respect of which any filing, registration or
notification is required or is advisable pursuant to such legislation
(whether or not the same has in fact been made).
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14.2 No Group Company has given an undertaking or written assurance (legally
binding or not) or received a communication or request for information
or been the subject of an on-site investigation relating to any aspect
of its business nor is it affected by any order, decision or regulation
made under or pursuant to any Antitrust Statute.
For the purposes of Warranty 14.2 "Antitrust Statute" means Articles 81
and 82 of the EC Treaty, Articles 53 and 54 of the Agreement on the
European Economic Area or any other competition, antitrust or fair
trading statute or legal instrument in Sweden or any other jurisdiction
in which any Group Company carries on business.
14.3 No Group Company has ever received, nor is a Group Company proposing to
receive, any aid (as that term is understood for the purposes of
Articles 87 to 89 of the EC Treaty ) from a Member State of the EU.
15 INTELLECTUAL PROPERTY, CONFIDENTIAL INFORMATION AND KNOW HOW
15.1 Full particulars of all of the Owned Intellectual Property Rights are
listed in sections A and B of Schedule 6. All of such particulars are
true, complete and accurate in all respects.
15.2 Full particulars of all of the registrations of any Owned Intellectual
Property Rights and any applications for registration of any Owned
Intellectual Property Rights are listed in sections A and B of Schedule
6.
15.3 Full particulars of all of the unregistered Owned Intellectual Property
Rights, Confidential Information and Know How which are material for
conducting the business of a Group Company or which comprise a
significant asset of a Group Company are detailed in Schedule 6.
15.4 All rights in respect of any Intellectual Property Rights, other than
those listed in sections A and B of Schedule 6, which are exercised in
or in connection with the business of the Company are granted to a
Group Company under the contracts listed in section C of Schedule 6.
The particulars of all the are true, accurate and complete in all
respects.
15.5 So far as the Vendors are aware, all rights in respect of any
Confidential Information or Know How which have been granted to a Group
Company, ("Confidentiality Licences Received"), are disclosed in the
Disclosure Letter and the particulars of all such Confidentiality
Licences are true, accurate and complete in all respects.
15.6 Each of the licenses received in respect of Operational Software ("IP
Licences Received") and Confidentiality Licences Received is valid and
enforceable in accordance with its terms. No Group Company is nor has
at any time been in breach of any of the IP Licences Received or
Confidentiality Licences Received and no such breach has been alleged.
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RENEWALS
15.7 All renewal fees and other fees payable in relation to all the
registered Owned Intellectual Property Rights and applications for the
registration of any Owned Intellectual Property Rights have been paid
duly.
VALIDITY, TITLE ETC.
15.8 Each of the Owned Intellectual Property Rights:
15.8.1 is valid, subsisting and enforceable and nothing has been done
or omitted which may provide grounds for a claim that it may
cease to subsist, be valid and enforceable;
15.8.2 is used exclusively by a Group Company; and
15.8.3 is not, and, so far as the Vendors are aware, will not be, the
subject of a claim, challenge or opposition from any person
including (without limitation) an Employee as to title,
ownership, validity, enforceability, compensation or
otherwise.
THIRD PARTIES
15.9 So far as the Vendors are aware, no person (whether a Group Company or
any other person) has granted or is obliged to grant a charge, licence,
assignment or other right in respect of any of the Owned Intellectual
Property Rights to any other person.
15.10 So far as the Vendors are aware no Group Company has:
15.10.1 disclosed nor is obliged to disclose to any other person any
of the Confidential Information or Know How nor allowed nor is
obliged to allow the use of any of the Confidential
Information or Know How by any other person; or
15.10.2 granted nor is obliged to grant any charge, licence,
assignment or other right in respect of any of the
Confidential Information or Know How.
15.11 No Group Company has granted any licences in respect of Owned
Intellectual Property or granted entered into any confidentiality
agreement.
15.12 So far as the Vendors re aware the carrying on of the business of each
Group Company on or before the date of this Agreement by each Group
Company:
15.12.1 is not at the date of this Agreement, nor was at any previous
time, subject to the licence, consent or permission of, or
payment to, another person relating to Intellectual Property
Rights or rights of confidence;
15.12.2 does not at the date of this Agreement, nor did at any time
infringe the Intellectual Property Rights, rights of
confidence or the moral rights of another person; and
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15.12.3 has not and will not give rise to a claim against the Group
Company.
15.13 So far as the Vendors are aware no Group Company is nor has at any time
infringed any Intellectual Property Rights of any other person or been
in breach of any rights of any other person relating to any
confidential information or know how.
15.14 current production protocols of the Company generate a yield of 9-10
MIU per buffy coat with purity greater or equal to 95%.
15.15 To the best of the knowledge of the Vendors, none of the production
excipients, including xxxxx xxxxx, represent a TSE, prion contamination
or exposure risk.
15.16 The Company has treated in excess of 600 patients in clinical trials
for a variety of indications with its AlphaNative details of which are
set out in the Disclosure Letter.
DISPUTES
15.17 So far as the Vendors are aware, there is and has been no civil,
criminal, arbitration, administrative or other proceeding or dispute in
any jurisdiction ("DISPUTE") concerning any of the Owned Intellectual
Property Rights, Operational Software, Confidentiality Licences
Received, Confidential Information or Know How. No such Dispute is
pending or threatened. To the best of the Vendors' knowledge,
information and belief, no matters or circumstances exist and there
have been no omissions which will or might give rise to such a Dispute.
16 INFORMATION TECHNOLOGY
16.1 In this paragraph 16, unless the context otherwise requires, the
following words have the meanings stated:
COMPUTER SOFTWARE includes, without limitation, any object
code, source code and any other code such as
procedure language or job control language
COMPUTER SYSTEM all systems comprising hardware, Operational
Software and telecommunications equipment
used in or in connection with the business
of any Group Company
OPERATIONAL SOFTWARE the Computer Software used in or in
connection with the business of any Group
Company, whether or not the Intellectual
Property Rights in the software are owned by
any Group Company, and listed in section C
of Schedule 6.
TITLE OR LICENCE TO OPERATE
16.2 a Group Company owns the rights in or has valid licences to use the
Computer System for the carrying on of the business of the Group
Companies in the manner carried on at the date of this Agreement.
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16.3 Particulars of all of the Operational Software listed in section C of
Schedule 6. All of such particulars are so far as the Vendors are aware
true, complete and accurate in all respects.
16.4 Particulars of all of the Operational Software together with
particulars of all of the licence agreements relating to the Licensed
Operational Software in respect of which a Group Company is licensed to
use are listed in section C of Schedule 6.
16.5 So far as the Vendors are aware no right (including, without
limitation, any Intellectual Property Right or any right in respect of
any confidential information) anywhere in the world of any person is,
has been or will be infringed by use of the Operational Software.
COMPUTER SYSTEM PERFORMANCE
16.6 During the 12 months prior to the date of this Agreement, no part of
the Computer System has failed whether by reason of bugs, equipment
breakdown or for any other reason such as to cause a material adverse
effect upon the business of any Group Company taken as a whole.
16.7 Where any software has been developed by persons other than employees
of a Group Company and is used by a Group Company in the course of its
business (either as part of its Computer System or as a Software
Product or a part thereof), the Group Company has obtained written
assignments of all Intellectual Property Rights in such software, or
licences to use such software, from such person(s), and no third
parties have any claims against a Group Company in respect of a Group
Company's use of such software.
16.8 There have been no claims by any third party that the use by a Group
Company of any element of the Computer System infringes any
Intellectual Property Right or violates any other legal right of any
third party, nor are the Vendors aware as at the date of this Agreement
of any fact or matter which might give rise to such a claim.
16.9 There are no payments due to third parties under leases, licences,
service agreements or other agreements relating to the Computer System
which are due and have not been paid, nor are the Vendors aware of any
fact or matter which could result in the lawful termination by any
third party lessor, licensor, service provider or other third party of
any such leases, licences, service agreements or other agreements.
17 The Disclosure Letter contains an accurate and comprehensive list of
software relating to the Computer System in relation to which a Group
Company is entitled to access source code under third party escrow
agreements. Vendors are not aware of any claim or dispute in existence
as at the date of this Agreement relating (without limitation) to the
ownership, performance, operation or maintenance of any element of the
Computer System.
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18 EMPLOYEES
GENERAL
18.1 The Management have indicated that they intend to remain in their
respective employment capacities for a period of at least 2 years
following Completion.
18.2 The Employees set out in section A of Schedule 7 and the Disclosure
Letter are all the directors or officers of the Group Companies
(whether or not employed by a Group Company) and employees engaged by
each Group Company. There is no person who has accepted an offer of
employment made by any Group Company but whose employment has not yet
started. No person other than the Employees will be or become entitled
to be employed by any Group Company or the Purchaser either as a
consequence of the matters contemplated by this Agreement or otherwise.
18.3 Each Group Company has maintained adequate and suitable records
regarding the service of its employees.
TERMS AND CONDITIONS
18.4 Full disclosure in writing of the terms and conditions of employment of
all Employees (including, without limitation, all salary or wages,
incentives, policies, bonuses, expenses, profit sharing arrangements
and other benefits payable whatsoever) and their job location has been
supplied to the Purchaser and the particulars of their employment set
out in section B of Schedule 7 and the Disclosure Letter are true,
complete and accurate.
18.5 There have been no changes to the remuneration or benefits of any kind
payable or due to any Employee and no changes have been proposed since
the Accounts Date or are due to be considered. All current and pending
negotiations with the Employees or any of them concerning such terms of
employment have been disclosed in full in the Disclosure Letter.
18.6 There have been no changes in the terms of service of any Employee as
set out in the Disclosure Letter and no changes have been proposed
since the Accounts Date or are due to be considered. All current and
pending negotiations with the Employees or any of them concerning such
terms of employment have been disclosed in full in the Disclosure
Letter.
18.7 All contracts of employment with Employees and all consultancy
arrangements to which the Company is party (including any contract for
services with any individual) can be terminated by six months' notice
or less without giving rise to a claim for damages or compensation
(other than a statutory redundancy payment or statutory compensation
for unfair dismissal).
18.8 So far as the Vendors are aware, no Group Company has made any
representations or statements concerning the Employees in relation to
this Agreement or its consequences.
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DISPUTES
18.9 No Group Company nor any of the Employees or any employee
representative is involved in any industrial or trade dispute or has
been involved in such a dispute within the 12 months' period ending
with the date of this Agreement and there are no facts known to the
Vendors which might suggest that there may be any such dispute.
18.10 No Group Company is involved in any disputes involving any of the
Employees and so far as the Vendors are aware there are no
circumstances which may result in any dispute involving any of the
Employees.
TRADE UNIONS AND COLLECTIVE AGREEMENTS
18.11 No Group Company has received an application for recognition nor
recognised any trade union nor entered into any kind of negotiation or
collective agreement or arrangement and no trade union has a level of
membership or support among the Employees likely to entitle that trade
union to recognition (of any kind) by a Group Company.
18.12 No Group Company has any agreement or arrangement with a special
negotiating body, staff association or any other employee.
LEGISLATION AND REGULATIONS AFFECTING EMPLOYEES
18.13 So far as the Vendors are aware, each Group Company has complied with
all collective agreements for the time being affecting its relations
with, or the conditions of service of, its employees and all relevant
orders and awards made under all legislation affecting the conditions
of service of its employees. So far as the Vendors are aware, all
appropriate notices have been issued under all statutes, regulations
and codes of conduct in respect of relations between a company and its
employees or any recognised trade union.
18.14 So far as the Vendors are aware, each Group Company has complied in all
material respects with all laws and codes of conduct and practice,
collective agreements and customs and practices including (without
limitation) applicable under Swedish Law or European Law all applicable
European Community Directives applicable to employers and/or employees.
There are no facts known to the Vendors which might suggest that there
may be any claim against any Group under any of those statutes, the EC
Treaty or any applicable European Community Directive.
18.15 No orders or recommendations have been made by the Equal Opportunities
Commission, any employment tribunal regulatory body, governmental
agency or similar body or any court under any legislation in respect of
employment which directly or indirectly involve a Group Company, nor
have any investigations under which legislation been carried out nor
are there any facts known to the Vendors which might suggest that there
may be any complaints or proceedings pending against a Group Company
under any of such statutes.
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18.16 Each Group Company has complied with all of its obligations under the
Working Time Directive in respect of the Employees. Each Group Company
has disclosed all workforce or collective agreements and any individual
agreements relating to any aspect of the Working Time Directive.
REDUNDANCY
18.17 In the 12 months' period ending with the date of this Agreement, no
Group Company has given notice of any redundancies to the relevant
governing body nor failed to comply with any relevant obligation under
statute.
18.18 The particulars of redundancy policies and formula set out in the
Disclosure Letter are true, complete and accurate.
OUTSTANDING AMOUNTS
18.19 So far as the Vendors are aware, no amounts due to, or in respect of,
any of the Employees (including applicable taxation and other
parafiscal charges deducted at source including pension contributions)
are in arrears or unpaid.
18.20 So far as the Vendors are aware none of the Employees has any accrued
rights to holiday pay or pay in lieu of holidays which have not been
provided for in full in the Accounts.
LEAVING THE COMPANY
18.21 None of the directors, officers or senior employees of any Group
Company has ceased to be employed by that Group Company (other than
through death or retirement at normal retirement age) during the 12
months' period ending with the date of this Agreement.
18.22 None of the directors, officers or senior employees of any Group
Company has given or received notice terminating his office and/or
employment and no director, officer or employee will be entitled to
treat his office and/or employment as terminated as a result of the
provisions of this Agreement.
COMMISSIONS, LIABILITIES ETC.
18.23 There are no agreements, arrangements or schemes in operation by or in
relation to a Group Company under which any of the Employees is
entitled to shares or a commission or remuneration of any kind
calculated by reference in whole or in part to turnover, profits or
sales of any Group Company or the Group as a whole.
18.24 No Group Company has in existence nor is proposing to introduce any
share incentive scheme, share option scheme or profit sharing scheme
for all or any of its directors, officers or employees.
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18.25 No present, future or contingent liability has been incurred by any
Group Company for breach of any employment contract, statutory right,
consultancy agreement or contract for services or for redundancy
payments, payments in compensation for (or in connection with)
unlawful, wrongful or unfair dismissal or for the actual or proposed
termination, suspension or a variation of the terms, of any employment,
office, consultancy or contract for services in respect of any present
or former director, officer or employee of any Group Company and no
sums in respect of any such liability have been paid since the Accounts
Date.
18.26 No gratuitous payment has been made to any Employee by any Group
Company in connection with the sale of the Shares. Except in respect of
normal accruals of remuneration or emoluments of employment, no sum is
payable to, or for the benefit of, any Employee and there is no legal
or moral obligation or ex-gratia arrangement or practice to pay
pensions, gratuities, superannuation or allowances or any other benefit
or sum.
LOANS TO EMPLOYEES
18.27 The Vendors have not made any loan or advance to any Employee or any
future or former director, officer or employee which is outstanding.
TRANSFERS OF UNDERTAKINGS
18.28 No Group Company has within the 12 months' period ending with the date
of this Agreement been party to any relevant transfer as defined in the
Swedish Employment Protection Act of 1982 nor has any Group Company
failed to comply with any duty to inform and consult any appropriate
representative under such regulations.
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19 PENSIONS
19.1 Other than certain collective pension plans generally adopted by
industry in Sweden and the Pension Scheme (the "Pension Schemes"),
there is no arrangement to which the Company or any Group Company
contributes or may become liable to contribute under which benefits of
any kind are payable to or in respect of any employee, former employee,
director or former director (the "Relevant Employees") on retirement,
on death, or in the event of disability or sickness or in other similar
circumstances,
19.2 So far as the Vendors are aware, all contributions to the Pension
Schemes which have fallen due for payment prior to the date hereof have
been made in accordance with the terms of the schemes and those which
fall due for payment before the Completion Date will have been paid by
that date.
19.3 Neither the Company nor any Group Company is making or will make before
Completion any ex gratia payments or promises to any of the Relevant
Employees.
20 TAXATION
20.1 The provisions for taxes and the provisions for social and parafiscal
charges (including, but not limited to, social security contributions,
and contributions to complementary welfare and pension schemes) which
appear in the Accounts are sufficient for the payment of all taxes,
social and parafiscal charges due or accrued at the Accounts Date
(regardless of the date of the event which is the origin of the taxes,
social or parafiscal charges and regardless of the date on which
payment thereof is due). So far as the Vendors are aware, the Company
and each Group Company have correctly filed all national, departmental
and local tax and social declarations at the required time and have
kept copies of the originals filed. All State, departmental and local
taxes, and duties (including, but not limited to, corporation tax,
value added tax, business tax, registration tax, land tax and customs
duties) and all social and parafiscal charges owed by any Group Company
or payable at the date hereof have been paid within the legal time
limits;
20.2 The Company and each Group Company have withheld all tax and/or social
or parafiscal charges to be withheld by them in respect of wages,
license fees, interest or any other sum payable by them;
neither the Company nor any Group Company will be the subject of any
additional assessment of taxes, fines or other punitive charges
resulting from incorrect tax or social declarations filed before
Completion;
20.4 as the VAT risk cannot be assessed, it is agreed between the Parties
that any Claim for indemnification in this respect, on grounds arising
out of non-payment of VAT and/or on the
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basis of a tax authority claim relating to VAT, shall be valid, shall
entitle the Purchasers to indemnification and shall be borne by the
Vendors severally.
21 PROPERTY
TITLE
21.1 The Properties shown in Schedule 9 comprise all of the premises and
land owned or occupied by, or used in connection with the businesses
of, the Group Companies or in respect of which the Group Companies have
an estate, interest, right or title.
21.2 The information set out in Schedule 9 of the Properties and their
tenure is true and accurate in all respects.
21.3 Each Group Company named in section A of Schedule 9 as owner of the
Properties is the legal owner of and beneficially entitled to the whole
of the proceeds of sale of, and has a good and marketable title to, the
Properties.
21.4 The real property Umea Formen 12 is registered at the Swedish Land
Registry and the Company is registered with absolute title. The
pre-registration deeds and documents relating to the real property do
not contain any covenants, easements or matters not referred to on the
registered title which are still enforceable. The pre-registration
deeds and documents relating to the real property do not contain any
title conditions, wayleaves or other rights in favour of third parties
or matters not referred to on the registered title which are still
enforceable.
21.5 Each Group Company has where so required in its possession and control
or unconditionally held to its order all the properly constituted and
stamped original documents of title and other documents and papers
relating to the Properties.
21.6 There are no Encumbrances affecting the Properties or the proceeds of
sale thereof and there is no outstanding monetary claim or liability,
contingent or otherwise, in respect of the Properties.
21.7 None of the Properties is subject to any adverse or unduly onerous
estate, right, interest, covenant, condition, restriction, obligation,
stipulation, easement, option or other right or informal arrangement in
favour of any third party and there is no agreement or commitment to
give or create any of the foregoing and where any of the Properties is
subject to any such arrangement or commitment no breach has occurred of
any of the terms of such agreement or commitment. So far as the Vendors
are aware, all conditions, restrictions and other obligations contained
in the whole of the title deeds of or otherwise affecting or incumbent
upon the Properties have been fully complied with.
21.8 The Properties drain into public sewers and are served by water,
electricity and gas utilities and such utilities are either connected
directly to the mains without passing through land in the
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occupation or ownership of a third party or, if such conducting media
pass through land in the occupation or ownership of a third party, then
the facilities, easements and rights necessary for the enjoyment and
present use of the Properties are enjoyed on terms which do not entitle
any person to terminate or curtail the same
21.9 There are no outstanding actions, disputes, claims or demands between a
Group Company and any third party affecting the Properties or any
neighbouring property.
21.10 Save for fixtures and fittings belonging to any tenant of the
Properties all fixtures and fittings at the Properties are a Group
Company's own absolute property and are free from Encumbrances.
21.11 The Properties are not subject to the payment of any outgoings other
than the uniform business rate or water rates (and, if leasehold, rent,
insurance and service charge reserved by the relevant lease) and all
such payments have been made to date.
21.12 No development at, or use of, the Properties has been or is being
undertaken in breach of the planning and building legislation or other
such legislation in the country in which such Properties are situated
or any regulations, bye-laws, orders, consents or permissions made or
given thereunder and the actual use of the Properties as set out in
Schedule 9 is the permitted use as of right or under the relevant
planning legislation.
21.13 The planning consents, permissions and licences issued by any local
authority or other body responsible for issuing such consents for
development and use authorise all present or intended uses at the
Properties and are either unconditional or are subject only to
conditions which are neither unusual nor temporary and which have been
satisfied or fully observed and performed, and such consents have not
been issued on a temporary or personal basis and are not subject to an
existing challenge as to validity. No application for planning
permission is currently awaiting decision (whether on appeal or
otherwise).
21.14 There is no resolution, proposal or order, whether formally adopted or
not, for the compulsory acquisition by any local or other authority of
the whole or any part of the Properties or any right of way or other
burden serving the Properties nor are there any circumstances which are
likely to lead to any such resolutions orders or proposals being made.
21.15 The Group Companies have discharged all development charges, monetary
claims and liabilities under the relevant planning or other legislation
and no such liability contingent or otherwise is outstanding.
21.16 There is no outstanding notice or order (statutory or otherwise)
relating to the Properties or any business carried on at, or the use
of, the Properties. There are no planning, development or road
proposals within the vicinity of the Properties which might affect the
Properties or the access to, or the business carried on at, the
Properties. There are no circumstances likely to lead to any such
notices, orders or proposals being issued or made.
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21.17 None of the buildings, structures or erections on the Properties is a
protected building of architectural, archaeological or historic
interest, nor are any of the Properties a protected site or
conservation area, situated adjacent to or near any protected site or
area designated as an area of conservation or subject to a tree
preservation order. The Properties are not situated in an area
designated for clearance, redevelopment or improvement or any other
similar purpose.
STATE AND CONDITION OF PROPERTIES
21.18 All laws relating to the protection of the Properties against fire and
all other statutory requirements, regulations and bye-laws relating to
the Properties have been fully complied with and there are no
subsisting breaches of any provisions or conditions contained in or
attaching to any certificates issued pursuant to such laws. The
Properties have adequate fire protection systems installed which are in
good working order.
21.19 The buildings and other structures on the Properties are in good and
substantial repair and entirely fit for the purposes for which they are
presently used.
21.20 None of the following has in the past affected or might in the future
affect the Properties nor are the Properties situated in an area or
subject to circumstances which may render any of them subject to:
21.20.1 structural or other defects in the Properties or the building
of which the Properties are part or in any conducting media
serving the Properties; or
21.20.2 flooding or subsidence; or
21.20.3 mining activities; or
21.20.4 rising damp, wet or dry rot or any infestations.
21.21 The Properties have not been constructed nor have alterations been made
using high alumina cement or concrete, asbestos products, wood wool
slabs, calcium silicate bricks or tiles, calcium chloride or any other
substances which are regarded as inadequate or unsuitable for building
purposes or deleterious or any other materials the use of which could
be in violation of existing legislation in the relevant jurisdiction in
which the Properties are situated.
21.22 The Properties are not the subject of any outstanding breaches of any
building control regulations, and no alterations, additions or
demolition work has taken place on or at the Properties within the last
four years which has changed the character of the Properties or the
processes carried on at, or the uses of, the Properties.
LEASEHOLD PROPERTIES
21.23 Where the interest of a Group Company in any of the Properties is
leasehold:
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21.23.1 the title of the landlord and all superior landlords has been
investigated and found to be satisfactory and abstracts of all
superior titles have been placed with the title deeds to the
Properties and all consents necessary for the grant of or
under the Lease were duly obtained and copies of such consents
are with the documents of title and the receipt for the
payment of rent which fell due immediately prior to the date
of this Agreement is unqualified;
21.23.2 there is no subsisting breach, nor any non-observance of any
covenant, condition or agreement contained in the Lease or any
superior lease or any document supplemental thereto on the
part of either the relevant landlord or the Group Company and
there are no circumstances likely to give rise to the same. No
landlord has refused to accept rent or made any complaint or
objection and the Lease is still valid and in full force and
effect;
21.23.3 there are no restrictions in the Lease which prevent the
Properties being used for the present or currently intended
use;
21.23.4 the Lease is not expressed to be subject to any rights of
re-entry on any ground other than non-payment of rent or
breach of covenant by the tenant;
21.23.5 no alterations have been made to the Properties at the expense
of the Group Company without all necessary consents and
approvals and all such alterations to the Properties are to be
disregarded on rent reviews save where carried out pursuant to
an obligation to the landlord and do not have to be reinstated
at the expiry of the term;
21.23.6 there is no prohibition in the Lease or any agreement between
the landlord and tenant or any statutory provision under the
laws of the relevant jurisdiction which prevent or restrict
the ability of the tenant to renew the Lease upon the expiry
of the term;
21.23.7 all steps in rent reviews have been duly taken and no rent
reviews are or should be currently under negotiation or the
subject of a reference to an expert or arbitrator or courts in
the relevant jurisdiction in which any of the Properties is
situated;
21.23.8 the Lease does not contain any unusual or objectionable
covenants or agreements having regard to the use to which the
Properties are currently put;
21.23.9 the landlord is entitled to elect that supplies under the
Lease should be standard rated for VAT purposes and has done
so;
21.23.10 no collateral assurances, undertakings or concessions have
been made by any party to the Lease; and
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21.23.11 the deeds and documents relating to the Leasehold Properties
and listed in section B of Schedule 9 comprise the entire
agreement between the relevant Group Company and the landlord
thereof and no variations formal or informal of such agreement
exist.
PROPERTIES SUBJECT TO LEASES AND LICENCES
21.24 Not any of the Properties is or has been the subject of any lease or
licence for the benefit of any person.
22 ENVIRONMENTAL
22.1 In this Agreement, unless the context otherwise requires, the following
words have the meanings stated:
COMPETENT AUTHORITY all or any competent authority from time to time
exercising a regulatory role under, or for the
purposes of, any Environmental Law, including
(without limitation) all courts, tribunals and other
judicial or quasi-judicial bodies,
ENVIRONMENT the natural and man-made environment and all or any
of the following media namely air, water and land,
including air within buildings and air within other
natural or man-made structures above or below ground
and any living organisms or ecological systems
supported by any one or more of such media
ENVIRONMENTAL AUDITS all audits, surveys, assessments or other
professional reports or investigations in respect of,
or affecting, any of the Properties or the business
of any Group Company, together with copies of the
terms and conditions of engagement of the relevant
auditors and written confirmation, up to a date as
near as practicable to Completion, of the existence
and material details of the professional indemnity
insurance of such auditors
ENVIRONMENTAL CONDITION (a) the presence of any Regulated Substance on,
in, under or adjacent to any of the
Properties or in any Controlled Waters which
are on, in, under, adjacent to, or in the
vicinity of, any of the Properties or which
are otherwise liable to be affected by the
emanation from any of the Properties of any
Regulated Substance; and/or
(b) the escape, release or migration of any
Regulated Substance from any of the
Properties; and/or
(c) any other breach of Environmental Law
affecting any of the Properties or the
business of the any Group Company
ENVIRONMENTAL DOCUMENTATION all Environmental Audits, all Environmental Licences,
all Waste Documentation and copies of all material
correspondence and other communications between any
Group Company and any Competent Authority and
generally any documents affecting the position of any
Group Company under any Environmental Law
ENVIRONMENTAL LAW all laws, regulations, directives, statutes,
subordinate legislation, rules of common law and
generally all international, EU,
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national and local laws and all judgements, orders,
instructions, decisions, guidance awards, codes of
practice and other lawful statements of any Competent
Authority applying from time to time in respect of
the Environment
ENVIRONMENTAL LICENCE any Licence required by Environmental Law
ENVIRONMENTAL LOSSES any Losses (other than Post-Completion Losses) to the
extent that such Losses arise out of or are
attributable to:
(a) any Environmental Condition; and/or
(b) the necessity for, or the imposition by any
Competent Authority of, any Remedial Action
in respect of, or in any way pertaining to,
or having an effect upon, the business of
any Group Company or any of the Properties
LOSSES (a) any and all losses, damages, liabilities,
claims, costs and expenses, including
(without limitation) any legal obligation or
requirement to effect Remedial Action;
and/or
(b) any requirement to effect Remedial Action
properly recommended by any duly qualified
environmental consultant for the purposes of
mitigating any potential such losses,
damages, liabilities, claims, costs or
expenses; and/or
(c) all attendant legal, geo-technical,
environmental and other professional costs
incurred in connection with any of the
foregoing
POST-COMPLETION LOSSES Losses to the extent that they are attributable to an
Environmental Condition resulting directly from works
or operations of a Group Company subsequent to
Completion and provided also that such Losses (a) do
not arise from, or are not attributable to, an
Environmental Condition already existing on or before
Completion; or (b) are not attributable to any
circumstances unconnected with any works or
operations carried out by a Group Company after
Completion
REGULATED SUBSTANCE any substance, material, liquid or other matter of
whatsoever nature which is prescribed, controlled or
in any way regulated by any Environmental Law or
which is hazardous or potentially hazardous to the
health of human beings or detrimental or potentially
detrimental to the Environment or to the soundness of
repair and condition of buildings
REMEDIAL ACTION any action, works or operations required at any time
to be carried out by or on behalf of a Group Company
in order to remove, remedy, prevent, clean-up, xxxxx,
contain, eradicate or mitigate the effects of any
Environmental Condition, including (without
prejudice) any such action, works or operations
agreed or determined to be carried out pursuant to
any negotiations entered into with any Competent
Authority by the Company or the Purchaser with a view
to mitigating any potential
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Environmental Losses
WASTE the meaning given from time to time under the
relevant Environmental Law pursuant to which any
issue as to waste arises or might arise in the
context of the business of any Group Company or any
of the Properties
WASTE DOCUMENTATION all documentation required to evidence the continuing
compliance by each Group Company with any relevant
part of Environmental Law dealing with Waste:
ENVIRONMENTAL LICENCES
22.2 So far as the Vendors are aware, all Environmental Licences have been
obtained by each Group Company, are valid and subsisting and in the
name of the Group Company and all conditions attaching to all
Environmental Licences are now being complied with and, to the best of
the Vendors' knowledge, information and belief, have at all material
times been complied with.
22.3 Certified copies or originals of all Environmental Licences have been
provided to the Purchaser on or before Completion, copies of which are
attached to the Disclosure Letter.
ENVIRONMENTAL LIABILITIES
22.4 Each Group Company and its business are not, nor have they been, nor to
the best of the Vendors' knowledge, information and belief, are they
likely to become the subject of, or have cause to be involved in, or
continue to be involved in any litigation, proceedings, disputes,
claims, enforcement of statutory or common law obligations or other
liabilities arising in Environmental Law or out of any Environmental
Licence.
22.5 Neither the Vendors nor any Group Company have received any notice or
other communication from which it appears that any Group Company or its
business may be (or alleged to be) in breach of, or to have incurred or
be likely to incur liability under, Environmental Law or arising out of
any Environmental Licence. No notice or other communication has been
received by the Vendors or by any Group Company from any Competent
Authority concerning any Environmental Condition or actual or potential
Environmental Losses affecting any of the Properties, or any Group
Company or its business, or requiring any Remedial Action to be
undertaken in respect of any of the Properties Each Group Company has
at all times procured, and continues to procure, full compliance of all
Environmental Law affecting the production, keeping, treatment,
consignment and disposal of, and other dealings in, all Waste produced,
kept, treated, consigned, disposed of or otherwise handled in
connection with the business of such Group Company.
22.6 All Waste Documentation has been provided to the Purchaser on or before
Completion, copies of which are attached to the Disclosure Letter.
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ENVIRONMENTAL INFORMATION
22.7 So far as the Vendors are aware, each Group Company has at all times
supplied to each relevant Competent Authority such information in
relation to the business of such Group Company as was at the relevant
time required under Environmental Law to be supplied.
22.8 All Environmental Audits have been provided to the Purchaser on or
before Completion, copies of which are attached to the Disclosure
Letter.
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SCHEDULE 6
INTELLECTUAL PROPERTY RIGHTS AND SOFTWARE
SECTION A: PATENT REGISTRATIONS APPLICATIONS AND PENDING REGISTRATIONS
AND APPLICATIONS
SECTION B: TRADEMARKS
SECTION C: OPERATIONAL SOFTWARE
SECTION A PATENTS
SUMMARY PATENTS
"INTERFERON PURIFICATION PROCESS"
Checked with PRV1
Designated states Valid until Status application number
------------------------------------------------------------------------------------------------------------
Sweden 2009-06-20 Approved 1993-03-25 8902230-5
European patent application
including: 2010-06-06 Approved 1995-02-22
Austria
Belgium
Denmark
France
Germany
Great Britain
Italy
Luxembourg
Netherlands
Switzerland & Liechtenstein
Spain
USA 2010-06-06 Approved 1995-02-21
Canada 2010-06-06 Pending
Japan 2010-06-06 Pending
Finland 2010-06-06 Approved 1997-05-12
Xxxxxx 0000-00-00 Xxxxxxxx 0000-00-00
Xxxx Xxxx 2010-06-06 Approved 1999-04-23
--------------
(1) Swedish Patent- and Registration Authority.
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"MODIFICATION OF INTERFERON-ALPHA PRODUCTION"
Additive in process that increases yield
Checked with PRV
Designated states Valid until Status application number
------------------------------------------------------------------------------------------------------------------------------------
Sweden 9804583-4 2018-12-29 Approved 9804583-4
PCT application including: 2019-12-22 Pending
All states that can be applied
"NEW MEDIUM"
Simplified medium that increases stability and decreases cost
Checked with PRV
Designated states Valid until Status application number
------------------------------------------------------------------------------------------------------------
Sweden 2018-03-30 Pending 9801090-3
European patent application
including: 2019-03-23 Pending
Austria
Belgium
Denmark
France
Germany
Great Britain
Italy
Luxembourg
Netherlands
Switzerland & Liechtenstein
Spain
Sweden
Portugal
Ireland
Greece
Finland
Monaco
USA 2019-03-23 Pending
Hungary 2019-03-23 Pending
"NEW PROCESS FOR CONTINUOUS PURIFICATION AND CONCENTRATION OF LEUCOCYTES"
Increases productivity in the process
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Checked with PRV
Designated states Valid until Status application number
------------------------------------------------------------------------------------------------------------
Sweden 2018-03-26 Pending 9801029-1
European patent application
including: 2019-03-23 Pending
Austria
Belgium
Denmark
France
Germany
Great Britain
Italy
Luxembourg
Netherlands
Switzerland & Liechtenstein
Spain
Sweden
Portugal
Ireland
Greece
Finland
Monaco
USA 2019-03-23 Pending
Hungary 2019-03-23 Pending
"PROCESS AND ARRANGEMENT FOR CONTINUOUS PURIFICATION AND CONCENTRATION OF
LEUCOCYTES"
Checked with PRV
Designated states Valid until Status application number
------------------------------------------------------------------------------------------------------------
Sweden 2008-12-05 Approved 9804388-0
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SECTION B
SUMMARY TRADEMARKS
* = International trademark Application, WIPO
THE SITUATION 2000-12-12 FOR THE TRADEMARKS:
BIONATIVE(R) PLUS FIGURE
Applied countries,
class 1, 5, 9, 10, Checked with PRV
16 & 41 Status Valid Registration number
---------------------------------------------------------------------------------------------------------------
Sweden Registered 1989-03-23 1989-03-23 - 2009-03-23 213 356
Applied countries, class 1, 5 & 10
Indonesia Registered 1997-07-11 1996-01-31 - 2006-01-31, class 5
Registered 1997-07-08 1996-02-01 - 2006-02-01, class 10
Registered 1997-08-15 1996-01-31 - 2006-01-31, class 1
EU Registered 1999-08-13 1997-05-05 - 2007-05-05
ALFANATIVE(R)
Applied countries, Status Valid Checked with PRV
class 5 Registration number
---------------------------------------------------------------------------------------------------------------
Sweden Registered 1992-06-05 1992-06-05 - 2002-06-05 235 779
Germany Registered 1990-10-29 1990-10-29 - 2000-10-29
Italy Registered 1992-12-09 1992-12-09 - 1997-12-09
France Not applied(2)
Spain Registered 1996-05-03 1996-05-03 - 2001-05-03
Indonesia Registered 1997-08-15 1997-08-15 - 2005-06-01
India Applied 1995-10-16
Philippines Registered
Malaysia Registered 1999-09-15(3) 1999-09-15 - 2003-01-06
Israel Registered 1998-07-06 1998-07-06 - 2003-10-14
Island Registered 1997-06-23 1997-06-23 - 2007-06-23
Finland Registered 1998-03-31
Norway Registered 1997-11-27 1997-06-23 - 2007-11-27
----------
(2) Because of similarity to ALPHANATE(R)
(3) ALPHANATE(R) registration.
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Myanmar Registered 1998-08-26 1998-08-26 - forever
Singapore Applied 1998-06-24(4)
Thailand Registered 1998-07-17(5) 0000-00-00 - 0000-00-00
Xxxx Xxxx Registered 1998-06-25
Egypt Registered
Mexico Registered 1999-01-28 0000-00-00 - 0000-00-00
Xxxxx Xxxxxxxx Registered 1999-01-13(6) 1999-01-13 - 2009-01-13 * 705 984
China Registered 1999-01-13(7) 1999-01-13 - 2009-01-13 * 705 984
Hungary Registered 1999-01-13(8) 1999-01-13 - 2009-01-13 * 705 984
Poland Registered 1999-01-13(9) 1999-01-13 - 2009-01-13 * 705 984
Russian Federation Registered 1999-01-13(10) 1999-01-13 - 2009-01-13
Slovakia Registered 1999-01-13(11) 1999-01-13 - 2009-01-13 * 705 000
Xxxxxxxx Registered 1999-01-13(12) 1999-01-13 - 2009-01-13
Switzerland Registered 1999-01-13(13) 1999-01-13 - 2009-01-13 * 705 984
Yugoslavia Registered 1999-01-13(14) 1999-01-13 - 2009-01-13 * 705 000
Xxxxxx Xxxxxxx Applied (ALPHANATE(R)registered) * 705 984
Portugal Applied * 705 000
Xxxxxxx Applied * 705 984
Netherlands Applied
Luxembourg Applied * 705 000
Xxxxxxx Xxxxxxx 0000-00-00
Xxxxx Xxxxx Registered
Austria Applied * 705 984
Denmark Applied * 705 984
Estonia Applied * 705 984
Lithuania Applied * 705 984
Monaco Applied * 705 984
------------
(4) ALPHANATE(R) registered.
(5) ALPHANATE(R) applied and Target is going to make an objection.
(6) 18 months objection period.
(7) See footnote 6
(8) See footnote 6
(9) See footnote 6
(10) See footnote 6
(11) See footnote 6
(12) See footnote 6
(13) See footnote 6
(14) See footnote 6
75
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ALFANATIVE- THE NATURAL CHOICE(TM)
Applied countries, Status Valid Checked with PRV
class 5 Registration number
------------------------------------------------------------------------------------------------------------
Sweden Registered 1999-05-07 1999-05-07 - 2009-05-07 341 790
DISCLAIMER: No property rights to the words THE NATURAL CHOICE
China Registered 1998-09-16(15) 1998-09-16 - 2008-09-16 * 000 000
Xxxxx Xxxxxxxx Registered 1998-09-16(16) 1998-09-16 - 2008-09-16 * 699 523
Hungary Registered 1998-09-16(17) 1998-09-16 - 2008-09-16 * 699 523
Poland Registered 1998-09-16(18) 1998-09-16 - 2008-09-16 * 699 523
Russian Federation Registered 1998-09-16(19) 1998-09-16 - 2008-09-16 * 699 000
Xxxxxxxx Registered 1998-09-16(20) 1998-09-16 - 2008-09-16 * 699 000
Xxxxxxxx Registered 1998-09-16(21) 1998-09-16 - 2008-09-16 * 000 000
Xxxxxxxxxxx Registered 1998-09-16(22) 1998-09-16 - 2008-09-16 * 699 523
Yugoslavia Registered 1998-09-16(23) 1998-09-16 - 2008-09-16 * 699 523
ALFANATIVE- THE PURE CHOICE(TM)
Applied countries, Checked with PRV
class 5 Status Valid Registration number
------------------------------------------------------------------------------------------------------------
Sweden Registered 2000-11-24 2000-11-24 - 2010-11-24 342 479
DISCLAIMER: No property rights to the words THE PUR CHOICE
China Registered 1998-09-16(24) 1998-09-16 - 2008-09-16 * 000 000
Xxxxx Xxxxxxxx Registered 1998-09-16(25) 1998-09-16 - 2008-09-16 * 699 522
Hungary Registered 1998-09-16(26) 1998-09-16 - 2008-09-16 * 699 522
Poland Registered 1998-09-16(27) 1998-09-16 - 2008-09-16 * 699 522
Russian Federation Registered 1998-09-16(28) 1998-09-16 - 2008-09-16 * 699 000
Xxxxxxxx Registered 1998-09-16(29) 1998-09-16 - 2008-09-16 * 699 522
-------------
(15) See footnote 6
(16) See footnote 6
(17) See footnote 6
(18) See footnote 6
(19) See footnote 6
(20) See footnote 6
(21) See footnote 6
(22) See footnote 6
(23) See footnote 6
(24) See footnote 6
(25) See footnote 6
(26) See footnote 6
(27) See footnote 6
(28) See footnote 6
(29) See footnote 6
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Slovenia Registered 1998-09-16(30) 1998-09-16 - 2008-09-16 * 000 000
Xxxxxxxxxxx Registered 1998-09-16(31) 1998-09-16 - 2008-09-16 * 699 522
Yugoslavia Registered 1998-09-16(32) 1998-09-16 - 2008-09-16 * 699 522
NATIVE(TM)
Applied countries, Checked with PRV
class 5 Status Valid Registration number
------------------------------------------------------------------------------------------------------------
Sweden Applied 1999-04-22 993 112
IMMUNATIVE(TM)
Applied countries, Checked with PRV
class 5 Status Valid Registration number
------------------------------------------------------------------------------------------------------------
Sweden Applied 2000-04-12 00-3047
China Registered 2000-10-13 2000-10-13 - 2010-10-13 *
Spain Registered 2000-10-13 2000-10-13 - 2010-10-13 *
USA Applied 2000-10-12
OTONORMAL(TM)
Applied countries, Checked with PRV
class 5 Status Valid Registration number
------------------------------------------------------------------------------------------------------------
Sweden Registered 2000-10-27 2000-10-27 - 2010-10-27 341 790
-------------
(30) See footnote 6
(31) See footnote 6
(32) See footnote 6
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SECTION C
OPERATIONAL SOFTWARE
DATA PROGRAM FINANCIAL DEPARTMENT
Operating system: Windows 98
Financial and accounting system: Navision Financial Systems
- Accounting
- Sales
- Purchase
- Stock
- Fixed assets
Wage program: AGDA PS
Time reporting: WinTid connected to BRANA time clock.
Connected through modem to: Nordbanken Axess
Postgirot's Girolink for
suppliers' payments.
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SCHEDULE 7
EMPLOYEES
SECTION A
LIST OF EMPLOYEES AND THEIR RESPECTIVE MONTHLY SALARY
MONTHLY GROSS
SALARY, SEK
XXXXXXXXXXXXXX
XXXX, XXXXX 00 000,00 50% Sick-listed 50%
XXXXX, XX 55 000,00
NORMARK, MAUD 15 250,00
XXXXXXXXXX, PER 18 000,00 50%
ANDERSSON, HELENA 18 000,00
XXXXXXX, XXX-SOFIE 18 500,00 Study leave since 1996
------------------------------------------------------------------------------------------------
142 250,00
PRODUCTION
XXXXXXXXX, XXXXX 8 900,00 50% Sick-listed 50%
XXXXXXXXX, XXXXX 16 150,00
JAREKRANS, MATS 31 500,00
XXXXXXXX, XXX 26 880,00
XXXXXXXX, XXXXXX 17 450,00
BARRLUND, XXXX 16 400,00
DANIELSSON, SIGNAR 16 900,00
XXXXXXXX, XXXXXX 15 500,00
XXXXXXXXXX, XXXX 21 000,00
XXXXXXX, XXXXXXX 16 500,00 Salary from 2001
ASTROM, XXXX-XXXX 16 050,00
XXXXXX, KEDIGA 14 280,00
XXXXXXXXX, XXX 36 000,00 Salary from 2001
XXXXXX, XXXX 16 000,00
----------
269 510,00
QUALITY
XXXXXXX, XXXXXXXXX 45 000,00 Salary from 2001
XXXXXXXXXX, XXX 14 128,00 80% Parental leave past-time
AFVANDER, ASA 14 900,00
XXXXXXXX, XXXXXX 22 000,00
XXXXXX, XXXXXXXX 18 600,00
KNUTS, NAUDOT ANNA 14 560,00 80% Parental leave past-time
XXXXXXX, XXXXXXXXX 17 300,00
----------
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146 488,00
R & D
XXXXXXXX, XXX 37 000,00 Salary from 2001
RESOLUT, KATRIN 20 500,00
XXXXXXXX, XXXX 28 900,00
XXXXX, XXXXXX 18 000,00
XXXXXX, XXXXX 22 400,00
XXXXXXXXX, XXXX 17 000,00
XXXXXXXX, XXXXXX 20 770,00
XXXXXXXX, XXXXXX 23 000,00
----------
187 570,00
SPECIALISTS (NOT EMPLOYED)
STRANNEGARD, ORJAN 10 000,00
XXXXXXXX, XXXXX 11 000,00
PERSSON, PER-XXXX 10 000,00
XXXXXXXX, XXXX 10 000,00
---------
41 000,00
TOTAL 768 318,00
SECTION B
TERMS AND CONDITIONS FOR EMPLOYMENT
------------------------------------------------------------------------------------------------------------------
SUBJECT TERMS AND CONDITIONS GENERAL COMMENTS
------------------------------------------------------------------------------------------------------------------
Working Time Normal Working Time 40 hours per week According to the Swedish Working Time Act
of 1982, the maximum normal working time
is 40 hours per week.
------------------------------------------------------------------------------------------------------------------
Overtime work Overtime work will be remunerated by
- money,
- paid time off,
- higher salary or
- extended vacation with three or five
vacation days.
------------------------------------------------------------------------------------------------------------------
Paid Vacation 30 days According to the Swedish Holidays Act of
1977, the minimum general holiday
entitlement is 25 days' holiday in each
12-month period.
------------------------------------------------------------------------------------------------------------------
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--------------------------------------------------------------------------------------------------------------------
Sick Pay No sick pay the first day of sickness UNDER THE SWEDISH SICK PAY ACT OF 1991,
THE EMPLOYER HAS TO PAY 80% OF THE
80% of ordinary salary and benefits day 2 - 14 EMPLOYEE'S SALARY AND BENEFITS DURING THE
in the sickness period FIRST 14 DAYS OF A SICK LEAVE, SAVE FOR A
ONE DAY QUALIFICATION PERIOD.
If the sickness period exceeds 14 days,
The employee is entitled approximately 90% sickness allowance is payable under
of the ordinary salary and benefits from day the National Social Insurance System.
12 in the sickness period (Target pays the In principle, sickness allowance equals
amount above 80%) 80% of the employee's salary and
benefits
--------------------------------------------------------------------------------------------------------------------
For employees having entered into an employment
Termination from contract prior to January 1, 1997, the notice Termination of employment is vigorously
employer period is based only on the age reached when regulated in the Swedish Employment
notice of dismissal is given and basically as Protection Act. The employer may validly
follows: dismiss an employee with notice only if
- under 25 years - 1 month there is "just cause" for the dismissal.
- 25 years - 2 months The Employment Protection Act
- 30 years - 3 months distinguishes between two categories of
- 35 years - 4 months "just cause" for dismissal with notice;
- 40 years - 5 months dismissal for reasons relating to the
- 45 years - 6 months employee personally and dismissal for
An employee having entered into an employment redundancy. As to dismissal for personal
agreement subsequent to December 31, 1997, has reasons the employee enjoys considerable
a notice period in relation to his total period protection. The employer has a
of employment with the employer as follows: far-reaching duty to allow the employee to
- less than 2 years - 1 month remedy any improprieties.
- 2 but less than 4 years - 2 months
- 4 but less than 6 years - 3 months
- 6 but less than 8 years - 4 months
- 8 but less than 10 years - 5 months
more than 10 years - 6 months
--------------------------------------------------------------------------------------------------------------------
Termination from 1 - 3 months depending on when the
from Employee employment contract was entered into.
--------------------------------------------------------------------------------------------------------------------
81
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SCHEDULE 8
TAX COVENANT (CLAUSE13)
In this Schedule, unless the context otherwise requires the following words have
the meanings stated:
DEMAND includes any liability to make a payment of Taxation and any
notice, demand, assessment, letter or other document issued or
any claim made or action taken by or on behalf of any Taxation
Authority from which it appears that the Company or the
Purchaser has incurred or may have incurred a Tax Liability
and any other matter indicating that the Vendors may be or
become liable for any payment in respect of which the Vendors
may be liable under this Schedule
EVENT includes (without limitation) any transaction, circumstance,
arrangement, act, event, failure or omission of any kind or
change of circumstances whether or not the Company is a party
and includes (without limitation) the death of any person and
the earning, accrual, arising or receipt of any income,
profits or gains of any description for any Tax purposes and
from any source, distribution, failure to distribute, any
change in residence for any reason for the purposes of any
Taxation and any change in accounting reference date
RELIEF includes any relief, loss, allowance, exemption, credit, set
off or deduction or other relief of a similar nature in
respect of Tax or taken into account in computing income,
profit or gains for the purposes of any Tax and any right to
repayment of Tax
TAX includes any and all forms of taxes, duties, contributions,
imposts, levies and charges and all deductions or withholdings
in respect of the same, whether of Sweden, the USA, the United
Kingdom or elsewhere in the world, and any payment which the
Company may be or become bound to make to any person in
respect of Tax and any fine, penalty or interest relating to
any of the above or to any failure to make any return or
supply any information in each case regardless of whether such
Tax is directly or primarily chargeable against or
attributable to the Company or any other person, firm or
company and whether or not there is a right of recovery
against another person
TAXATION AUTHORITY includes any revenue, customs, fiscal, governmental,
statutory, state, provincial, local government or
municipal authority, body or person whether of Sweden
or elsewhere in the world competent to impose,
administer or collect Tax
TAX LIABILITY includes:
(a) a liability to make an actual or increased payment of or in
respect of Tax, in which case the Tax Liability is the amount
of the payment or increased payment;
(b) the set off of any Relief to which paragraph (c) below applies
or any Relief arising in respect of any period since the
Accounts Date or any Event or Events occurring after the
Accounts Date in each case against profits or against a
liability to make a payment of or in respect of Tax in respect
of which the Vendors would otherwise have been liable under
this Schedule, in which case the Tax Liability shall be the
amount of Tax which would have been payable but for such set
off;
(c) the disallowance, loss, restriction, withdrawal,
non-availability or failure to obtain any Relief in respect of
any period arising or by reason of any Event occurring on or
before Completion, in which case the Tax
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85
Liability shall be the amount of Tax which would have
been saved (ignoring the availability of any other
Relief and assuming sufficient income, profits and
gains) but for such disallowance, loss, restriction
or failure to obtain, at the rate of Tax current at
the date of such disallowance, loss, restriction or
failure to obtain
(d) any amount, not otherwise falling within (a) to (c),
payable by the Company in respect of Tax pursuant to
an indemnity, covenant, guarantee, mortgage, charge
or other instrument or by operation of law or
otherwise.
1.2 References to income, profits or gains earned, accrued, arising or
received shall include:
1.2.1 any other measure by reference to which Tax is computed; and
1.2.2 income profits or gains treated as or deemed to be earned,
arising, accrued or received.
1.3 References to an Event occurring on or before a particular date or in
respect of a particular period shall include an Event which is deemed
to have occurred on or before or in respect of that period.
1.4 References to an Event shall include the combined result of two or more
Events, the first of which or some part of which occurred on or before
Completion
1.5 Any stamp duty or analogous Taxation payable on documents of conveyance
or transfer which is chargeable on any document or, in the case of a
document which is outside the United Kingdom, Sweden or the USA, any
stamp duty which would be chargeable on the instrument if it were
brought into the United Kingdom, Sweden or the USA in any case, which
is necessary to establish the title of the Company to any asset or in
the enforcement or production of which the Company is interested, and
any interest, fine or penalty relating to such stamp duty will be
deemed to be a Tax Liability of the Company which arose at the date of
execution of the instrument.
1.6 Unless the context otherwise requires the expression the "COMPANY"
includes each of the Subsidiaries so that this Schedule shall apply to
Subsidiary as if it were the Company.
2 COVENANT
2.1 The Vendors covenant with the Purchaser to pay to the Purchaser an
amount equal to the amount of:
2.1.1 any Tax Liability of the Company which arises by reason of, by
reference to or in consequence of:
(a) any Event which occurred on or before Completion
whether or not such Tax Liability has been discharged
on or before Completion; or
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86
(b) any underpayment of an instalment of tax due to be
paid;
2.1.2 any liability of the Company to repay in whole or in part any
payment received for the surrender of any form of group relief
or for the surrender of any advance tax, any tax refund or any
payment which the Company fails to obtain for the surrender of
group relief or for the surrender of advance corporation tax
or for the surrender of any tax refund which was taken into
account as an asset in the Accounts;
2.1.3 any Tax Liability of the Company whenever arising:
(a) which arises in consequence of the failure of any
person to discharge a Tax Liability within a
specified period or otherwise where such Tax
Liability arises as a result of any Event which
occurred on or before Completion; or
(b) which would not have arisen but for any act, omission
or change in circumstances of any company (other than
the Company) which was at any time before Completion
a member of the same group of companies as the
Company for any Tax purpose;
2.1.4 any Tax Liability of the Company assessed or assessable on any
company and remaining unpaid where the company in question is
or was under the control of any person who has at any time
prior to Completion had control of the Company;
2.1.5 any depletion in, or reduction in value of, the assets or
increase in the liabilities of the Purchaser or the Company as
a result of any inheritance tax or any analogous tax payable
on the death of or by the estate of a deceased individual,
which:
(a) is at Completion a charge on any of the Shares or
assets or shares of the Company or gives rise to a
power to sell, mortgage or charge any of the Shares
or assets or shares of the Company; or
(b) after Completion becomes a charge on or gives rise to
a power to sell, mortgage or charge any of the Shares
or assets or shares of the Company, being a liability
in respect of inheritance tax payable as a result of
the death of any person (whenever occurring) within
seven years after a transfer of value or a deemed
transfer of value where such transfer of value or
deemed transfer of value occurred on or before
Completion; or
(c) arises as a result of a transfer of value occurring
on or before Completion (whether or not in
conjunction with the death of any person whenever
occurring) made by or to the Company;
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87
2.1.6 any Tax Liability of the Company in respect of any supply for
the purposes of VAT whenever made by any company which was a
member of the same group of companies as the Company at any
time on or before Completion;
2.1.7 any Taxation Liability affecting the Company in respect of or
arising in connection with any Event completed after
Completion pursuant to a legally binding obligation or
arrangement (conditional or otherwise) incurred or entered
into on or before Completion; and
2.1.8 any costs or expenses (including the costs and expenses of
taking or defending any action under this Schedule) incurred
or payable by the Company or the Purchaser in connection with
any Demand or any matter for which a claim is made under this
Schedule (such costs and expenses to include reasonable
compensation for time spent in connection with such matters by
employees and officers of the Purchaser and the Company).
2.2 For the avoidance of doubt any payment made by the Purchaser or the
Company to discharge or remove any charge or power to sell, mortgage or
charge shall give rise to a depletion in the assets of the Purchaser or
the Company and notwithstanding any provision in this Schedule the
Purchaser or the Company may disregard any right to pay tax in
instalments in discharging or removing a charge or power.
2.3 Any payments made pursuant to paragraph 2.1 shall as far as possible be
treated as an adjustment to the Consideration paid by the Purchaser for
the Shares under the terms of this Agreement.
3 EXCLUSIONS
The covenant to pay given in paragraph 2 shall not cover any Tax
Liability:
3.1 to the extent that specific and adequate provision or reserve in
respect of such Tax (other than for deferred Tax) is made in the
Accounts; or
3.2 to the extent that it arises or is increased as a result of any
increase in rates of Tax or any change in applicable law or regulatory
requirements or published practice of any Taxation Authority made after
Completion with retrospective effect; or
3.3 to the extent that it is attributable to any voluntary act or omission
of the Purchaser or the Company outside the ordinary course of business
after Completion which the Purchaser knew would give rise to a Tax
Liability and which could have been avoided, unless such act:
3.3.1 was carried out pursuant to a legally binding obligation
entered into on or before Completion; or
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88
3.3.2 is the disclosure of any information, matter or relevant to
any Taxation Authority; or
3.3.3 was carried out with the agreement or at the request of the
Vendors; or
3.3.4 is the presentation for stamp duty purposes of any document;
or
3.4 To the extent that it arises in the ordinary course of business of the
Company as carried on at Completion after the Accounts Date and before
Completion and, for the purposes of this paragraph 3.4, the following
shall not be regarded as resulting from the ordinary course of business
of the Company:
3.4.1 the acquisition, disposal or supply or deemed acquisition,
disposal or supply of any assets, goods, services or business
facilities of any kind (including the lending of money and
letting, hiring or licensing of any tangible or intangible
property) for a consideration deemed for Tax purposes to be
different to that actually received, to the extent of the
difference only;
3.4.2 any Event which may result in the Company becoming liable to
pay or bear Tax chargeable directly or primarily against or
attributable directly or primarily to another person;
3.4.3 the failure to deduct and/or account for Tax;
3.4.4 the making of any distribution or deemed distribution
including the paying of any dividend;
3.4.5 the acquisition of or the disposal of any capital asset;
3.4.6 a company ceasing to be a member of a group for any Tax
purposes; and
3.4.7 incurring any penalty, interest, surcharge or fine in
connection with Tax.
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SCHEDULE 9
THE PROPERTIES
BRIEF DETAILS OF PROPERTIES
-------------------------------------------------------------------------------------------------------------------
Type of Property Address Parties to lease Dates of Lease and initial
rental
-------------------------------------------------------------------------------------------------------------------
Leasehold 851,5 m2 warehouse at the Company and 17 March 1992
Tvistevagen 00, Xxxx, Xxxxxxx Xxxxxxxxxx XX
Sweden SEK 1,008,800
-------------------------------------------------------------------------------------------------------------------
Leasehold 958 m2 warehouse at the Company and 17 March 1992
Tvistevagen 00, Xxxx, Xxxxxxx Xxxxxxxxxx XX
Sweden SEK 1,148,425
-------------------------------------------------------------------------------------------------------------------
Leasehold 305 m2 warehouse at the Company and 17 March 1994
Tvistevagen 00, Xxxx, Xxxxxxx Xxxxxxxxxx XX
Sweden SEK 360,000
-------------------------------------------------------------------------------------------------------------------
Real Umea Formen 12
-------------------------------------------------------------------------------------------------------------------
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SCHEDULE 10
PURCHASER'S WARRANTIES (CLAUSE 8.10)
1 The Purchaser is a limited company duly organised and incorporated in
the State of Delaware, USA and has been in continuous existence since
incorporation.
2 There has been due compliance with the all legal requirements in
connection with the formation of the Purchaser and the conduct of its
business and with the allotment and issue of shares, debentures and
other securities and the payment of distributions and no notice or
allegation has been received that any of the foregoing is incorrect or
should be rectified.
3 The Purchaser is listed on Amex(R) and has complied in all material
terms with the listing requisite listing and filing requirements of
Amex(R) and the Securities and Exchange Commission in the USA.
4 The Purchaser has the requisite powers and authorities to enter into
and perform its obligations under this Agreement.
5 This Agreement constitutes valid and binding obligations of the
Purchaser in accordance with its terms.
6 The execution and delivery of, and the performance by the Purchaser of
its obligations under, this Agreement will not:
6.1 result in a breach of any provision of the Purchaser's constitution; or
6.2 result in a breach of, or constitute a default under, any material
agreement or material arrangement to which the Purchaser is a party or
by which it is bound; or
6.3 result in a breach of any order, judgement or decree of any court or
governmental agency to which the Purchaser is a party or by which it is
bound; or
6.4 save in respect of the Spin Off, require the Purchaser to obtain any
consent or approval of, or give any notice to or make any registration
with, any governmental or other authority which has not been obtained
or made at the date of this Agreement on an unconditional and
irrevocable basis (save for any legal or regulatory entitlement to
revoke the same other than for misrepresentation or misstatement by or
on behalf of the Purchaser).
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91
7 The Purchaser has and will have at Completion immediately available on
an unconditional basis (subject only to Completion) the resources
necessary to satisfy the Consideration and meet its obligations under
this Agreement.
8 All information supplied by any member of the Purchaser's Group or any
of their respective advisers to the Vendors was, when given and
remains, true, complete and accurate in all material respects.
9 The creation, allotment and issue of the Deferred Consideration Shares
to the Vendors and their listing on a recognised stock exchange shall
comply with all requisite laws and regulations of the USA in relation
to the allotment and issue of securities and the Company has or will
have power to create, allot and issue the Deferred Consideration Shares
and other than as set out in this Agreement, to enter into and perform
this Agreement without any further sanction or consent by the members
of the Purchaser or any class of them.
10 The allotment and issue of the Deferred Consideration Shares to the
Vendor will not exceed or infringe any restrictions or the terms of any
contract, obligation or commitment to bind or binding on the Purchaser
or result in the imposition or variation of any rights or obligations
of the Purchaser.
11 The audited balance sheet of the Purchaser and the audited consolidated
profit and loss account of the Purchaser to March 31, 2001 (the
"accounts"):
11.1 have been prepared on a proper basis in accordance with all applicable
laws and with US generally accepted accounting principles; and
11.2 show a true and fair view of the state of affairs at the end of, and of
the profits and losses of the Purchaser for, the financial period
covered by the accounts.
12 Since the date of the accounts the Purchaser has carried on its
business in the ordinary and usual course and in the same manner (as to
nature, scope and method) as in the past so as to maintain it as a
going concern.
13 The Purchaser will use all reasonable endeavours and will cause the
Company to recover all debts owing to it on the Completion Date;
14 Except in circumstances where there is a dispute as to the amount due
and payable, the Purchaser pays its material creditors within the
requisite time periods for payment.
15 The Purchaser is, and has at all material times been, fully covered by
valid insurance against all risks normally insured against having
regard to the type of business carried on and the assets and properties
owned or used by it.
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92
16 So far as the Purchaser is aware, the Purchaser is not has been during
the year ending on the date of this Agreement been in breach of any
material contract, agreement, arrangement or obligation to which it is
a party and each such material contract, agreement, arrangement or
obligation is in full force and effect.
17 So far as the Purchaser is aware, the Purchaser has all licences,
consents and permits required for the carrying on its business in the
place and in the manner in which such business is now carried on.
18 Neither the Purchaser nor any employee or person for whose acts or
defaults the Company may be vicariously liable is involved, in any
civil, criminal, administrative, arbitration, regulatory, competition
or antitrust or other proceedings, claims, investigations, inquiries,
actions (including disciplinary) or prosecutions in any jurisdiction of
a material nature (each a "PROCEEDING").
19 The Purchaser has not received any notification that any Proceedings
are to be commenced.
20 The Purchaser is able to pay its debts as they fall due and is not in
administration, receivership, liquidation or bankruptcy nor have any
proceedings been commenced for its winding up, nor has any matter or
event analogous to any of the foregoing occurred in the USA or any
other jurisdiction.
90
