Exhibit 2.3
CLOSING AGREEMENT
In reference to the Share Purchase Agreement and the Convertible Promissory Note
Loans Purchase Agreement (hereinafter jointly the "Purchase Agreements"), made
and entered into on 25 September 2002 in Helsinki, Finland,
A The Finnish National Fund for Research and Development Sitra ("Suomen
itsenaisyyden juhlarahasto Sitra" in Finnish), a legal entity incorporated
and existing under the laws of Finland with Business Identity Code
0202132-3, having its registered domicile in Helsinki, Xxxxxxxxxxxx 0,
00000 Xxxxxxxx. Xxxxxxx;
B Savon Teknia Oy, a corporation organized and existing under the laws of
Finland with Business Identity Code 0732765-5, having its registered
domicile in Kuopio, Xxxxxxxxxxxxx 0, 00000 Xxxxxx, Xxxxxxx and
C Savon Kasvurahasto I Ky, a limited partnership organized and existing under
the laws of Finland with Business Identity Code 1447848-6, having its
registered domicile in Kuopio, Xxxxxxxxxxxxx 0, 00000 Xxxxxx, Xxxxxxx
(A, B and C are hereinafter jointly called as the "Sellers". The Sellers and the
Purchaser are hereinafter jointly called as the Parties and individually as the
"Party")
hereby confirm, that the shares (the "Shares") of Nanobac Oy (the "Company") and
the Convertible Promissory Note Loans, as stated in the Purchase Agreements,
will be passed from the Sellers to Nanobac Pharmaceuticals Inc (the "Purchaser")
under the following provisions:
1. The Purchaser hereby declares that it is well acquainted with the Company and
its operations. The Purchaser is fully aware of the financial condition of the
Company as well as the issues related to its legal affairs and commercial
position as of the date of signing of this Agreement. The Purchaser has had full
powers and sufficient possibilities to examine the company either by himself or
with any of his expert advisers prior to the execution of this Agreement and the
Purchaser has received copies of the annual accounts of the company for the
financial year 2002.
2. The Purchaser is aware of and fully and unconditionally accepts that
(i) The extraordinary shareholders' meeting (the "Meeting") of the Company
shall be held on 6 November 2003 or on such later date when the fourth and
final instalment of the purchase price has been paid to the Sellers' bank
account in accordance with the Purchase Agreements;
(ii) The Meeting shall unanimously pass a resolution whereby all of the present
members of the board of directors ("Board Members") of the Company have
been discharged from liability for their administration until the date of
their resignation;
(iii) The Board Members shall resign from the board of directors of the Company
and they will submit necessary information relating to the change of
memberships to the Trade Register (meaning the register held by the
National Board for Patents and Registrations in Finland) immediately after
the Meeting has been held.
The Purchaser further undertakes that:
(iv) It shall be responsible for ensuring that those Board Members who have
resigned or been replaced in connection with this Agreement will be fully
and unconditionally discharged from liability for their administration, as
provided by the Finnish Companies Act, until the date of their resignation
or replacement, for such part of their administration that such discharge
from liability has to be confirmed at the next annual general meeting of
the Company, not to be held later than 30 June 2004; provided, however,
that the auditors of the Company in their reports for the relevant period
do not recommend against such discharge.
3. The Sellers' commitment to Close the transaction (i.e. to transfer the full
and unrestricted ownership of and title to the Shares to the Purchaser) shall be
subject to the Sellers receiving the fourth and final instalment of the purchase
price, as according to the Purchase Agreements.
4. Each Party shall take all necessary actions, and assist the other Party in
all actions necessary on their behalf, in order to effect the transactions
contemplated under this Agreement in accordance with all applicable laws.
5. If any provision of this Agreement or the Purchase Agreements is held to be
unenforceable, voidable, void or in conflict with any laws, then other
provisions of this Agreement or the Purchase Agreements shall continue to be in
full force and effect, provided that such remaining provisions still reflect the
original intent of the Parties hereto. If any provision of this Agreement or the
Purchase Agreements is held to be unenforceable, voidable, void or in conflict
with any laws, the Parties shall use all reasonable endeavours to replace that
provision with a new, lawful provision closest to the substance of the original
provision.
6. This Agreement shall inure to the benefit of and be binding upon each of the
Parties and their respective successors and assigns, but neither the rights nor
the duties of any Party may be voluntarily assigned, in whole or in part, by a
Party without the prior written consent of the other Parties. After the Sellers
have received the fourth instalment as stated above, this Agreement shall
replace such provisions in the Purchase Agreements that are in conflict with the
provisions of this Agreement, if any.
7. This Agreement and the Purchase Agreements shall be governed by the laws of
Finland.
8. Any dispute, controversy or claim arising out of or in connection with this
or the breach, termination or invalidity thereof shall be settled in arbitration
by a three (3) arbitrators in accordance with rules of the Central Chamber of
Commerce in Finland. The language of the proceedings shall be English.
This Agreement has been signed in four (4) identical counterparts, one for each
Party.
Helsinki, 5 November, 2003.
FINNISH NATIONAL FUND FOR RESEARCH AND DEVELOPMENT SITRA
/s/ Xxxxx Xxxxxxxx
----------------------
Xxxxx Xxxxxxxx
by proxy
SAVON TEKNIA OY
/s/ Xxxxx Xxxxxxxxxxx
-------------------------
Xxxxx Xxxxxxxxxxx
by proxy
SAVON KASVURAHASTO I KY
/s/ Xxxxx Xxxxxxxxxxx
-------------------------
Xxxxx Xxxxxxxxxxx
by proxy
Nanobac Pharmaceuticals, Inc.
/s/ X. X. Xxxxxxx III.
-----------------------
X. X. Xxxxxxx III.
