ARTICLE
1 -
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INTERPRETATION
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1
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1.01 |
Definitions
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1
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1.02
|
Headings
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2
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1.03
|
Extended
Meanings
|
2
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1.04
|
Statutory
References
|
3
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1.05
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Accounting
Principles
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3
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1.06
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Currency
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3
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1.07
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Schedules
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3
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ARTICLE
2 -
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SALE
AND PURCHASE
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3
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2.01
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Assets
to be Sold and Purchased
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3
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2.02
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Purchase
Price
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3
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2.03
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Payment
of Purchase Price
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3
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ARTICLE
3 -
|
REPRESENTATIONS
AND WARRANTIES
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4
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3.01
|
Vendor’s
Representations and Warranties
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4
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3.02
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Purchaser’s
Representations and Warranties
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5
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3.03
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Survival
of Representations, Warranties and Covenants
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5
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ARTICLE
4 -
|
COVENANTS
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6
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4.01
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Covenants
of the Vendor
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6
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4.02
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Covenants
of the Purchaser
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6
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4.03
|
Section
85(1) Election
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6
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4.04
|
Cooperation
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6
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4.05
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Cooperation
on Tax Matters
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7
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ARTICLE
5 -
|
CONDITIONS
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7
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5.01
|
Conditions
for the Benefit of the Purchaser
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7
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5.02
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Conditions
for the Benefit of the Vendor
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8
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ARTICLE
6 -
|
CLOSING
ARRANGEMENTS
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9
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6.01
|
Closing
|
9
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6.02
|
Examination
of Records and Assets
|
9
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ARTICLE
7 -
|
GENERAL
|
9
|
7.01
|
Further
Assurances
|
9
|
7.02
|
Time
of the Essence
|
10
|
7.03
|
Benefit
of the Agreement
|
10
|
7.04
|
Entire
Agreement
|
10
|
7.05
|
Amendments
and Waivers
|
10
|
7.06
|
Notices
|
10
|
7.07
|
Governing
Law
|
11
|
7.08
|
Counterparts
|
12
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7.09
|
Facsimiles
|
12
|
1.01
|
Definitions
|
|
(i)
|
any
applicable domestic or foreign law including any statute, subordinate
legislation or treaty, and
|
|
(ii)
|
any
applicable guideline, directive, rule, standard, requirement, policy,
order, judgment, injunction, award or decree of a Governmental
Authority
having the force of law.
|
1.02
|
Headings
|
1.03
|
Extended
Meanings
|
1.04
|
Statutory
References
|
1.05
|
Accounting
Principles
|
1.06
|
Currency
|
1.07
|
Schedules
|
2.01
|
Assets
to be Sold and
Purchased
|
2.02
|
Purchase
Price
|
2.03
|
Payment
of Purchase Price
|
3.01
|
Vendor’s
Representations and
Warranties
|
|
(a)
|
The
Vendor is a corporation duly incorporated, organized and subsisting
under
the laws of Canada with the corporate power to own its assets and
to carry
on its business.
|
|
(b)
|
The
Vendor has the power, authority and right to enter into and deliver
this
Agreement and to complete the transactions contemplated to be completed
by
the Vendor hereunder.
|
|
(c)
|
This
Agreement constitutes a valid and legally binding obligation of
the
Vendor, enforceable against the Vendor in accordance with its terms
subject to applicable bankruptcy, insolvency, reorganization and
other
laws of general application limiting the enforcement of creditors’ rights
generally and to the fact that specific performance is an equitable
remedy
available only in the discretion of the
court.
|
|
(d)
|
Neither
the entering into nor the delivery of this Agreement nor the completion
of
the transactions contemplated hereby by the Vendor will result
in the
violation of:
|
|
(i)
|
any
of the provisions of the constating documents or by-laws of the
Vendor;
|
|
(ii)
|
any
agreement or other instrument to which the Vendor is a party or
by which
the Vendor is bound; or
|
|
(iii)
|
any
Applicable Law.
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(e)
|
The
Vendor is registered under Part IX of the Excise Tax Act (Canada)
with registration number 13175 3915
RT0001.
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(f)
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The
Vendor is not a non-resident person within the meaning of section
116 of
the Tax Act.
|
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(g)
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The
Vendor has duly elected in prescribed form and jointly with the
Purchaser
to have the rules contained in subsection 156(2) of Part IX of
the
Excise Tax Act (Canada) apply to the purchase and sale of the
Purchased Assets contemplated hereunder, which election remains
valid and
in effect.
|
3.02
|
Purchaser’s
Representations and
Warranties
|
|
(a)
|
The
Purchaser is a corporation duly incorporated, organized and subsisting
under the laws of Canada with the corporate power to own its assets
and to
carry on its business.
|
|
(b)
|
The
Purchaser has the power, authority and right to enter into and
deliver
this Agreement and to complete the transactions contemplated to
be
completed by the Purchaser
hereunder.
|
|
(c)
|
This
Agreement constitutes a valid and legally binding obligation of
the
Purchaser, enforceable against the Purchaser in accordance with
its terms
subject to applicable bankruptcy, insolvency, reorganization and
other
laws of general application limiting the enforcement of creditors’ rights
generally and to the fact that specific performance is an equitable
remedy
available only in the discretion of the
court.
|
|
(d)
|
Neither
the entering into nor the delivery of this Agreement nor the completion
of
the transactions contemplated hereby by the Purchaser will result
in a
violation of:
|
|
(i)
|
any
of the provisions of the constating documents or by-laws of the
Purchaser;
|
|
(ii)
|
any
agreement or other instrument to which the Purchaser is a party
or by
which the Purchaser is bound; or
|
|
(iii)
|
any
Applicable Law.
|
|
(e)
|
The
Purchaser is registered under Part IX of the Excise Tax Act
(Canada) with registration number 88289 4165
RT0001.
|
|
(f)
|
The
Purchaser has duly elected in prescribed form and jointly with
the Vendor
to have the rules contained in subsection 156(2) of Part IX of
the
Excise Tax Act (Canada) apply to the purchase and sale of the
Purchased Assets contemplated hereunder, which election remains
valid and
in effect.
|
3.03
|
Survival
of Representations, Warranties and
Covenants
|
(1)
|
The
respective representations and warranties of the Vendor and the
Purchaser
contained in this Agreement shall survive the completion of the
sale and
purchase of the Purchased
|
|
Assets
herein provided for and, notwithstanding such completion, will
continue in
full force and effect for a period of two years from the Closing
Date.
|
(2)
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The
respective covenants of the Vendor and the Purchaser contained
in this
Agreement shall survive the completion of the sale and purchase
of the
Purchased Assets herein provided for and, notwithstanding such
completion,
shall continue in full force and effect for the benefit of the
Vendor or
the Purchaser, as applicable, in accordance with the terms
thereof.
|
4.01
|
Covenants
of the Vendor
|
(1)
|
The
Vendor, immediately after the Closing Date at the Purchaser’s expense and
written direction, will file all necessary notices with all relevant
Governmental Authorities evidencing the sale of the Purchased Assets
to
the Purchaser.
|
4.02
|
Covenants
of the Purchaser
|
(1)
|
The
Purchaser will be liable for and will pay, or will cause to be
paid, all
transfer, value added, ad-valorem, excise, sales, use,
consumption, goods or services, harmonized sales, retail sales,
social
services, or other similar taxes or duties (collectively,
“Transfer Taxes”) payable under any Applicable Law on or
with respect to the sale and purchase of the Purchased Assets under
this
Agreement. The Purchaser will prepare and file any affidavits
or returns required in connection with the foregoing at its own
cost and
expense. To the extent that any Transfer Taxes are required to
be paid by or are imposed upon the Vendor, the Purchaser will reimburse,
or will cause to be reimbursed, to the Vendor such taxes within
five
Business Days of payment of such taxes by the Vendor. All
amounts payable by the Purchaser to the Vendor hereunder do not
include
Transfer Taxes.
|
4.03
|
Section
85(1) Election
|
4.04
|
Cooperation
|
4.05
|
Cooperation
on Tax
Matters
|
5.01
|
Conditions
for the Benefit of the
Purchaser
|
(1)
|
The
sale by the Vendor and the purchase by the Purchaser of the Purchased
Assets is subject to the following conditions, which are for the
exclusive
benefit of the Purchaser and which are to be performed or complied
with at
or prior to the Time of Closing:
|
|
(a)
|
the
representations and warranties of the Vendor set forth in Section
3.01
will be true and correct at the Time of Closing with the same force
and
effect as if made at and as of such
time;
|
|
(b)
|
the
Vendor will have performed or complied with all of the terms, covenants
and conditions of this Agreement to be performed or complied with
by the
Vendor at or prior to the Time of
Closing;
|
|
(c)
|
the
Purchaser will be furnished with such certificates or other instruments
(including instruments of conveyance with respect to the Purchased
Assets)
of the Vendor or of officers of the Vendor as the Purchaser or
the
Purchaser’s counsel may reasonably think necessary in order to establish
that the terms, covenants and conditions contained in this Agreement
to
have been performed or complied with by the Vendor at or prior
to the Time
of Closing have been performed or complied with and that the
representations and warranties of the Vendor herein given are true
and
correct at the Time of Closing;
|
|
(d)
|
there
will have been obtained from all appropriate Governmental Authorities
such
approvals or consents as are required to permit the change of ownership
of
the Purchased Assets contemplated
hereby;
|
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(e)
|
no
action or proceeding in Canada will be pending or threatened by
any
person, or Governmental Authority to enjoin, restrict or prohibit
the sale
and purchase of the Purchased Assets contemplated hereby;
and
|
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(f)
|
all
necessary steps and proceedings will have been taken to permit
the
Purchased Assets to be duly and regularly transferred to and registered
in
the name of the Purchaser.
|
(2)
|
In
case any term or covenant of the Vendor or condition to be performed
or
complied with for the benefit of the Purchaser at or prior to the
Time of
Closing has not been performed or complied with at or prior to
the Time of
Closing, the Purchaser, without limiting any other right that the
Purchaser has, may at its sole option
either:
|
|
(a)
|
rescind
this Agreement by notice to the Vendor, and in such event the Purchaser
will be released from all obligations hereunder;
or
|
|
(b)
|
waive
compliance with any such term, covenant or condition in whole or
in part
on such terms as may be agreed upon without prejudice to any of
its rights
of rescission in the event of non-performance of any other term,
covenant
or condition in whole or in part;
|
5.02
|
Conditions
for the Benefit of the
Vendor
|
(1)
|
The
sale by the Vendor and the purchase by the Purchaser of the Purchased
Assets is subject to the following conditions, which are for the
exclusive
benefit of the Vendor and which are to be performed or complied
with at or
prior to the Time of Closing:
|
|
(a)
|
the
representations and warranties of the Purchaser set forth in Section
3.02
will be true and correct at the Time of Closing with the same force
and
effect as if made at and as of such
time;
|
|
(b)
|
the
Purchaser will have performed or complied with all of the terms,
covenants
and conditions of this Agreement to be performed or complied with
by the
Purchaser at or prior to the Time of Closing;
and
|
|
(c)
|
the
Vendor will be furnished with such certificates or other instruments
of
the Purchaser or of officers of the Purchaser as the Vendor or
the
Vendor’s counsel may reasonably think necessary in order to establish
that
the terms, covenants and conditions contained in this Agreement
to have
been performed or complied with by the Purchaser at or prior to
the Time
of Closing have been performed or complied with and that the
representations and warranties of the Purchaser herein given are
true and
correct at the Time of Closing.
|
(2)
|
In
case any term or covenant of the Purchaser or condition to be performed
or
complied with for the benefit of the Vendor at or prior to the
Time of
Closing has not been performed or complied with at or prior to
the Time of
Closing, the Vendor, without limiting any other right that the
Vendor has,
may at its sole option either:
|
|
(a)
|
rescind
this Agreement by notice to the Purchaser, and in such event the
Vendor
will be released from all obligations hereunder;
or
|
|
(b)
|
waive
compliance with any such term, covenant or condition in whole or
in part
on such terms as may be agreed upon without prejudice to any of
its rights
of rescission in the event of non-performance of any other term,
covenant
or condition in whole or in part;
|
6.01
|
Closing
|
6.02
|
Examination
of Records and Assets
|
7.01
|
Further
Assurances
|
7.02
|
Time
of the Essence
|
7.03
|
Benefit
of the Agreement
|
7.04
|
Entire
Agreement
|
7.05
|
Amendments
and Waivers
|
7.06
|
Notices
|
7.07
|
Governing
Law
|
7.08
|
Counterparts
|
7.09
|
Facsimiles
|
GENESENSE
TECHNOLOGIES INC.
|
|||
Per:
|
“Aiping
Young”
|
||
Per:
|
|||
4325231
CANADA INC.
|
|||
Per:
|
“Aiping
Young”
|
||
Per:
|
“Graham
Strachan”
|
||
|
•
|
the
Virulizin patent assets listed in Exhibit A attached hereto;
and
|
|
•
|
the
Small Molecule patent assets listed in Exhibit B attached
hereto.
|