BIGMAR 10-K
BIOFERMENT
CANCELLATION AGREEMENT
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entered into between
BIGMAR, INC., a Delaware corporation having its place of business at 0000
Xxxxxxxxxx Xxxxxx #00, Xxxxxxxx, Xxxx 00000 XXX, hereafter "BIGMAR",
duly represented by Xx. Xxxx Xxxxxxxxxx, president of BIGMAR
and
CERBIOS-PHARMA SA, a Swiss corporation having its place of business at via Pian
Xxxxxxxx 0, 0000 Xxxxxxxx, Xxxxxxxxxxx, hereafter "CERBIOS", duly represented by
Xx. Xxxxxxxx Xxxxxxx, in accordance with the Resolution of the board of
directors of Cerbios executed on March 25, 1997, hereto enclosed in original as
EXHIBIT A
* * *
2
RECITALS
Whereas
a) on December 14, 1995 Bigmar and the Bioferment division of Cerbios have
entered into the Exclusive distribution and supply agreement relating to the
following products coming from the following technologies:
Liposomes:-products: Cyclosporin
Virosomes:-product: under development
-product: Microencapsulation;
b) the parties never fulfilled or implemented the Exclusive distribution and
supply agreement of December 14, 1995;
c) the parties deem that it is in their own best interest to close their
commercial relationships relating to the above mentioned agreement of
December 14, 1995,
all this aforementioned,
the parties agree as follows:
1. The parties agree to cancel and cancel the Exclusive distribution and supply
agreement of December 14, 1995.
2. With the execution of the present Cancellation agreement the parties are
lifted from any and all obligations connected with the Exclusive distribution
and supply agreement of December 14, 1995, except from those relating to the
confidentiality clause (clause 10), which shall continue to have effect.
3
3. The present agreement shall take effect and enter into force as soon as
Bigmar will have delivered two originals of the corresponding "Unanimous
written consent of the board of directors of Bigmar, Inc.", in the form
attached hereto as EXHIBIT B to the notary public Xx. Xxxxxx Moggi, who is
herewith instructed by the parties to receive such resolution and deliver one
original of this resolution to Cerbios.
Bigmar undertakes to deliver this resolution to the notary public within the
10th of April 1997.
In case of failure to provide the "Unanimous written consent of the board of
directors of Bigmar, Inc." within the 10th of April 1997, the present
agreement will not come into force and will be considered null and void.
4. This agreement shall be governed by and construed in accordance with the
substantive laws of the State of Ohio, USA, without regard to Ohio's choice
of law rules.
5. Any disputes or differences between the parties arising out of, or in
connection with this agreement shall be resolved in New York by a sole
arbitrator, in accordance with the rules and regulations of the International
Chamber of Commerce of Paris.
4
In witness whereof, both parties have caused this agreement to be signed in six
originals, two for each party and two for the notary public, by their respective
duly authorised officers or representatives on the date indicated below.
Lugano, 27th of March 1997
BIGMAR, INC. CERBIOS-PHARMA SA
By: By:
Name: Xxxx Xxxxxxxxxx Name: Xxxxxxxx Xxxxxxx
Title: President Title: Officer
/s/ XXXX XXXXXXXXXX /s/ XXXXXXXX XXXXXXX
EXHIBIT A-BIOFERMENT
VERBALE
DEL XXXXXXXXX DI AMMINISTRAZIONE
DELLA
CERBIOS-PHARMA SA, BARBENGO
La riunione del xxxxxxxxx e xxxxxx Barbengo, negli uffici della Cerbios-Pharma
SA, che dopo discussione ha adottato le seguenti risoluzioni;
1. e approvata la sottoscrizione della convenzione con Bigmar, Inc., Columbus,
Ohio, relativa alla risoluzione del contratto "Exclusive distribution and
supply agreement" stipulato il 14 dicembre 1995 tra la divisone Bioferment
della Cerbios-Pharma e la Bigmar, Inc.;
2. e conferito xxxxxxx xx xxxxxx Xxxxxxxx Xxxxxxx per la firma della convenzione
con la Bigmar, Inc.
Lugano, 25 marzo 1997
/s/ Xxxxxxx Xxxxxx /s/ Xxx Xxxxx Van Troostenburg
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ING. XXXXXXX XXXXXX XXX XXXXX VAN TROOSTENBURG
/s/ Pierangelo Ghirlanda
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PIERANGELO GHIRLANDA
MINUTES
OF THE BOARD OF DIRECTORS
OF
CERBIOS-PHARMA INC., BARBENGO
The meeting of the Board of Directors was held in Barbengo, at the offices of
Cerbios-Pharma Inc., and after discussion adopted the following resolutions:
1. The subscription to the convention with Bigmar, Inc., Columbus, Ohio was
approved according to the resolution of the "Exclusive distribution and supply
agreement" contract drafted 14 December 1995 between the Bioferment division of
Cerbios Pharma and Bigmar Inc.
2. Xx. Xxxxxxxx Xxxxxxx was given power-of-attorney for the convention with
Bigmar, Inc.
Lugano, 25 March 1997
(signature) (signature)
Engineer Xxxxxxx Xxxxxx Xxx Xxxxx Van Troostenburg
(signature)
Pierangelo Ghirlanda
EXHIBIT B 10.41
10.43
10.44
UNANIMOUS WRITTEN CONSENT
OF
THE BOARD OF DIRECTORS
OF
BIGMAR, INC.
The undersigned, being all of the Directors of BIGMAR, INC., a corporation
organised and existing under the laws of the State of Delaware (the "Company"),
do hereby consent, pursuant to Section 141(f) of the Delaware General
Corporation Law and Section 15 of the Restated Bylaws of the Company, to the
adoption without a meeting of the following resolutions and that this action be
taken without a meeting pursuant to said Section 141(f) of the Delaware General
Corporation Law and Section 141(f) of the Delaware General Corporation Law and
Section 15 of the Restated Bylaws of the Company;
Whereas, Xx. Xxxx Xxxxxxxxxx has disclosed to the Board of Directors his
interests and willingness in the cancellation of the Distribution and License
Agreements (defined below);
Whereas, a majority of the disinterested directors of the Company has determined
that the cancellation of the (i) Exclusive Distribution and Supply Agreement,
dated November 14, 1995, between the Company and the SAPEC Division of Cerbios
Pharma SA ("Sapec"), (ii) License and Supply Agreement, dated November 14, 1995,
between the Company and Bioferment, a division of Cerbios Pharma SA
("Bioferment") and (iii) Exclusive Distribution and Supply Agreement, dated
December 14, 1995, between the Company and Bioferment (collectively, the
"Distribution and License Agreements"), is desirable and in the best interests
of the Company; and
Whereas, the Cancellation Agreements have already been signed on March 27, 1997
by Cerbios-Pharma SA and by Xx. Xxxx Xxxxxxxxxx, in his capacity of president of
Bigmar, Inc., on behalf of Bigmar, Inc., a copy of which is attached hereto as
EXHIBIT A, B AND C; and
Whereas, Xx. Xxxx Xxxxxxxxxx has given to the Board of Directors an original of
each of the above three Cancellation Agreements, which correspond in full to the
Exhibits A, B and C; and
Whereas, a majority of the disinterested directors of the Company has determined
that the above Cancellation Agreements, which effect the cancellation of each of
the Distribution and License Agreements are desirable and in the best interests
of the Company.
NOW, THEREFORE, BE IT RESOLVED, that the Cancellation Agreements be, and hereby
are, approved, authorized, ratified and adopted in all respects; and be it
FURTHER RESOLVED, that the execution and delivery of the Cancellation Agreements
by the President Xx. Xxxx Xxxxxxxxxx is the enforceable and binding act and
obligation of the Company, without the signature or attestation of any other
officer of the Company or the affixing of any corporate seal; and be it
FURTHER RESOLVED, that any and all actions heretofore or hereafter taken within
the terms of the foregoing resolutions be, and hereby are, affirmed, approved
and ratified as the act and deed of the Company.
This Unanimous Written Consent may be executed in multiple counterparts, each of
which shall constitute an original and all of which shall constitute a single
document.
IN WITNESS WHEREOF, the undersigned have executed this Unanimous Written Consent
on , 1997 and directed that it be filed with the minutes of
proceedings of the Board of Directors.
/s/ XXXX X. XXXXXXXXXX
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