ARTICLE 1 - INTERPRETATION
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1.01 |
Definitions
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1.02 |
Headings
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1.03 |
Extended Meanings
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1.04 |
Statutory References
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1.05 |
Accounting Principles
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1.06 |
Currency
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1.07 |
Exhibits
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ARTICLE 2 - SALE AND PURCHASE
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2.01 |
Assets to be Sold and Purchased
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2.02 |
Purchase Price
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2.03 |
Payment of Purchase Price
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2.04 |
Closing
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2.05 |
Bulk Sales Act
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ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
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3.01 |
Vendor's Representations and Warranties
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3.02 |
Purchaser's Representations and Warranties
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7 | |||||
3.03 |
Survival of Representations and Warranties of the Vendor
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3.04 |
Survival of Representations and Warranties of the Purchaser
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8 | |||||
3.05 |
Tax Matters
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3.06 |
Cooperation on Tax Matters
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ARTICLE 4 - CONSENT
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4.01 |
Consent of the Purchaser
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ARTICLE 5 - INDEMNIFICATION
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5.01 |
Definitions
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5.02 |
Indemnification by the Vendor
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5.03 |
Monetary Limit on Indemnity of Vendor
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5.04 |
Indemnification by the Purchaser
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5.05 |
Payments
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5.06 |
Rights in Addition
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ARTICLE 6 - GENERAL
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6.01 |
Non-Reliance on Representations and Warranties
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6.02 |
Further Assurances
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6.03 |
Time of the Essence
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6.04 |
Benefit of the Agreement
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6.05 |
Entire Agreement
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6.06 |
Amendments and Waivers
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6.07 |
Notices
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6.08 |
Governing Law
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6.09 |
Counterparts
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6.10 |
Facsimiles
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6.11 |
No Third Party Beneficiaries
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1.01
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Definitions
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(i)
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any applicable domestic or foreign law including any statute, subordinate legislation or treaty, and
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(ii)
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any applicable guideline, directive, rule, standard, requirement, policy, order, judgment, injunction, award or decree of a governmental authority having the force of law.
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1.02
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Headings
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1.03
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Extended Meanings
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1.04
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Statutory References
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1.05
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Accounting Principles
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1.06
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Currency
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1.07
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Exhibits
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2.01
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Assets to be Sold and Purchased
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2.02
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Purchase Price
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(a)
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The purchase price payable to the Vendor for the Purchased Assets (such amount being hereinafter referred to as the "Purchase Price") will be (REDACTED).
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(b)
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Upon completion of the transaction contemplated in this Agreement, the Purchased Assets (with the exception of electronic material which shall be delivered at the Time of Closing by the Vendor to the Purchaser) shall remain on-site at Vendor in a clearly marked area labelled "Property of Erin Mills Biotech Inc.," and will be subject to the form of storage agreement in Exhibit B. The Purchaser shall have access to this area during regular business hours of the Vendor on any Business Day, and shall be entitled to remove the Purchased Assets at anytime it may desire. In the event the Purchaser wishes to move the Purchased Assets, the Purchaser shall be solely responsible for the cost associated therewith.
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2.03
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Payment of Purchase Price
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2.04
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Closing
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2.05
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Bulk Sales Act
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3.01
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Vendor's Representations and Warranties
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(a)
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The Vendor is a corporation duly incorporated and organized pursuant to the laws of Canada and is a validly subsisting corporation in good standing under the laws of Canada with full corporate capacity, power and authority, subject to subparagraph 3.01(1) below , (i) to own, license and utilize the Purchased Assets; (ii) to execute and deliver this Agreement, (iii) to sell, assign, transfer, convey and deliver the Purchased Assets to the Purchaser as herein contemplated, and (v) to otherwise observe, perform, satisfy and carry out its obligations hereunder.
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(b)
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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.
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(c)
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The execution and performance of this Agreement by the Vendor and the execution and delivery of all other agreements, documents and instruments to be executed and delivered by the Vendor pursuant hereto or in connection with the completion of the transaction contemplated herein have been duly authorized and approved by all necessary and appropriate action of the board of directors and of the shareholders of the Vendor and by any other necessary action on the part of the Vendor to comply with Applicable Law;
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(d)
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To the best of its knowledge, the Vendor is the owner of, and has good, valid and marketable title to, the Purchased Assets free and clear of all Charges of any Person of every nature, kind and description whatsoever, except for Charges arising by operation of law for which the Purchaser has not received written notice and except for security interests therein granted to and in favour of the Purchaser and Zor Pharmaceuticals, LLC ("Zor"), including without limitation, rights of any Person (other than the Purchaser hereunder) to acquire any ownership interest in or right to possess or use any of the Purchased Assets and the Vendor has the exclusive right, the power and the authority to sell, assign, transfer, convey and deliver good and marketable title to the Purchased Assets to the Purchaser as herein contemplated.
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(e)
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There are no claims, no suits, actions or any other proceedings of any nature, kind or description whatsoever (including arbitration proceedings), or investigations (whether or not purportedly on behalf of the Vendor) pending or, to the best of the knowledge, information and belief of the Vendor, threatened, at law or in equity, or before or by any federal, provincial, municipal or other governmental department, commission, bureau, agency or instrumentality, domestic or foreign, which involves the Purchased Assets including, without limitation, any which would restrain or otherwise prevent, in any manner, the Vendor from effectually and legally transferring good and marketable title to the Purchased Assets to the Purchaser hereunder, or which would cause a lien to attach to such property or assets or to divest title to such property or assets from the Vendor hereunder, and the Vendor is not aware of any existing ground on which any such claim, suit, action, proceeding or investigation might be commenced with any reasonable likelihood of success. The Vendor is not aware of any outstanding and unsatisfied judgments, decrees or other judicial order binding upon or enforceable against the Vendor which may affect the Purchased Assets or the performance of this Agreement.
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(f)
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All trade-mark registrations, trade-mark applications, patents and patent applications relating to the Purchased Assets have been registered in, filed in or issued by the Canadian Intellectual Property Office, or by the corresponding offices of other jurisdictions as identified on Exhibit I attached hereto and have been maintained and renewed in accordance with all provisions of Applicable Law and administrative regulations as administered by the relevant intellectual property office in Canada and each such jurisdiction, except for minor violations of Applicable Law which do not adversely affect the validity or enforceability of any of the Purchased Assets.
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(g)
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The Vendor has taken all reasonable steps in accordance with sound business practice to establish and/or preserve its ownership of trade-mark, patent, trade secret and other proprietary rights in respect to the Purchased Assets.
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(h)
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The Vendor has required all professional and technical employees, and other individuals having access to valuable non-public information of the Vendor used or employed in connection with the Purchased Assets, to execute agreements under which such individuals are required to convey to the Vendor the ownership of all inventions and developments conceived and created by them in the course of their employment or contractual relations with the Vendor.
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(i)
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The Vendor has no knowledge of any infringement by others of any of its intellectual property rights in the patents defined in Exhibit I.
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(j)
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To the knowledge of the Vendor, neither the Purchased Assets nor the activities carried on by the Vendor in connection therewith infringe upon any proprietary rights, including copyrights, patents, trade-marks, trade secrets and industrial designs, of any other Person.
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(k)
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To the knowledge of the Vendor, the Vendor is not making unauthorized use of any confidential information or trade secret of any Person, including any former employee or contractor of the Vendor.
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(l)
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The Vendor has not licensed all or any portion of the Purchased Assets to any Person other than to Zor pursuant to the exclusive license agreement made as of April 8, 2008 between the Vendor and Zor, as amended.
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(m)
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This Agreement has been duly and validly executed and delivered by the Vendor and constitutes, and the documents and instruments to be delivered by the Vendor pursuant hereto at the Time of Closing when executed and delivered will constitute valid and legally binding obligations of the Vendor, enforceable against the Vendor in accordance with their respective 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.
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(n)
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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:
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(i)
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any of the provisions of the constating documents or by-laws of the Vendor;
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(ii)
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any agreement or other instrument to which the Vendor is a party or by which the Vendor is bound; or
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(iii)
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any Applicable Law.
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(o)
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The Vendor is registered under Part IX of the Excise Tax Act (Canada) with registration number 83796 5961 RT0001.
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(p)
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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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3.02
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Purchaser's Representations and Warranties
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(a)
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The Purchaser is a corporation duly incorporated and organized pursuant to the laws of Ontario and is a validly subsisting corporation in good standing under the laws of Ontario with full corporate capacity, power and authority (i) to own its assets, (ii) to execute and deliver this Agreement, and (iii) to otherwise observe, perform, satisfy and carry out its obligations hereunder.
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(b)
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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 Vendor hereunder.
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(c)
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The execution and performance of this Agreement by the Purchaser and the execution and delivery of all other agreements, documents and instruments to be executed and delivered by the Purchaser pursuant hereto or in connection with the completion of the transaction contemplated herein have been duly authorized and approved by all necessary and appropriate action of the board of directors and of the shareholders of the Purchaser and by any other necessary action on the part of the Purchaser to comply with Applicable Law.
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(d)
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This Agreement has been duly and validly executed and delivered by the Purchaser and constitutes, and the documents and instruments to be delivered by the Purchaser pursuant hereto at the Time of Closing when executed and delivered will constitute valid and legally binding obligations of the Purchaser, enforceable against the Purchaser in accordance with their respective 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.
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(e)
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Neither the entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Purchaser will result in the violation of:
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(i)
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any of the provisions of the constating documents or by-laws of the
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Purchaser;
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(ii)
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any agreement or other instrument to which the Purchaser is a party or by which the Purchaser is bound; or
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(iii)
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any Applicable Law.
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(f)
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The Purchaser is registered under Part IX of the Excise Tax Act (Canada) with registration number 13777 7470 RT0001.
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3.03
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Survival of Representations and Warranties of the Vendor
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3.04
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Survival of Representations and Warranties of the Purchaser
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3.05
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Tax Matters
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3.06
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Cooperation on Tax Matters
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4.01
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Consent of the Purchaser
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5.01
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Definitions
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(a)
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"Claim" means any demand, action, suit, proceeding, claim, assessment, judgement or settlement or compromise relating thereto which may give rise to a right to indemnification under Sections 5.02 or 5.04;
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(b)
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"Indemnifier" means any party obligated to provide indemnification under this Agreement;
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(c)
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"Indemnified party" means any Person entitled to indemnification under this Agreement; and
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(d)
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"Loss" means any and all loss, liability, damage, cost, expense, charge, fine, penalty or assessment, resulting from or arising out of any Claim, including the costs and expenses of any action, suit, proceeding, demand, assessment, judgement, settlement or compromise relating thereto and all interest, punitive damages, fines and penalties and reasonable legal fees and expenses incurred in connection therewith, including loss of profits and consequential damages.
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5.02
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Indemnification by the Vendor
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(a)
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any misrepresentation or breach of warranty made or given by the Vendor in this Agreement or in any document delivered pursuant to this Agreement; or
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(b)
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any failure by the Vendor to observe or perform any obligation contained in this Agreement or in any document delivered pursuant to this Agreement to be observed or performed by the Vendor.
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5.03
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Monetary Limit on Indemnity of Vendor
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5.04
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Indemnification by the Purchaser
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(a)
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any misrepresentation or breach of any warranty made or given by the Purchaser in this Agreement or in any document delivered pursuant to this Agreement; or
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(b)
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any failure by the Purchaser to observe or perform any obligation contained in this Agreement, in any document delivered pursuant to this Agreement or in any document delivered pursuant to any of them to be observed or performed by it.
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5.05
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Payments
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5.06
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Rights in Addition
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6.01
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Non-Reliance on Representations and Warranties
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6.02
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Further Assurances
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6.03
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Time of the Essence
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6.04
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Benefit of the Agreement
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6.05
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Entire Agreement
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6.06
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Amendments and Waivers
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6.07
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Notices
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6.08
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Governing Law
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6.09
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Counterparts
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6.10
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Facsimiles
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6.11
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No Third Party Beneficiaries
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LORUS THERAPEUTICS INC.
Per:______________________________________
Name: Aiping Young
Title: President and Chief Executive Officer
I have authority to bind the corporation
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ERIN MILLS BIOTECH INC.
Per:_______________________________________
Name: Gerry C. Quinn
Title: Authorized Signing Officer
I have authority to bind the corporation
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●
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the Virulizin patent assets listed in Exhibit I attached hereto
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●
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the Virulizin trade marks listed in Exhibit I attached hereto
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●
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all copyright, trade dress, industrial and other designs and know-how relating to Virulizin
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1.
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Definitions: All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Purchase Agreement.
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2.
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Storage of Purchased Assets: The Purchased Assets retained by Lorus shall be stored at Lorus's premises, currently located at 2 Meridian Road, Toronto, ON, M9W 4Z7 and in no other building or place. Subject to Section 3 hereof, in the event that the Purchased Assets are moved or otherwise relocated to any other location without the prior written consent of (or at the written direction of) EMBI, such movement or relocation shall be deemed a violation of this agreement and Lorus shall be liable for any loss or damage to the Purchased Assets, whether or not the same results from the negligence of Lorus, its employees, agents or anyone for whom any of them is in law responsible.
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3.
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Removal at Request of Lorus: Lorus may provide 60 days written notice to TEMIC pursuant to Section 6.07 of the Purchase Agreement, to remove the Purchased Assets at the sole expense of EMBI. In the event that the Purchased Assets are not so removed within the said 60 day time period, Lorus shall have no further liability to EMBI with respect to the Purchased Assets and this Agreement shall immediately terminate.
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4.
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Access to Purchased Assets: EMBI and each of its designated representatives shall have access to the secure storage area in which the Purchased Assets are kept during regular business hours of Lorus on any Business Day, and shall be entitled to remove the Purchased Assets at anytime it may so desire. In the event EMBI elects to move all or any portion of the Purchased Assets, EMBI shall be solely responsible for any and all costs and expenses associated therewith.
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5.
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Standard of Care: Lorus agrees to use all such measures and take all such reasonable steps as are required in order to preserve and protect the Purchased Assets as if it were the absolute owner thereof; provided that in the event any portion of the Purchased Assets are lost or damaged through theft, fire, vandalism, act of public enemies or act of God, Lorus shall not be liable to EMBI for such loss or damage except in the event that any such theft, fire or vandalism results from or is the result of the negligence or wilful misconduct of Lorus, its employees, agents or anyone for whom any of them is in law responsible.
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6.
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Governing Law: This agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
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7.
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Enurement: The provisions hereof shall enure to the benefit of and shall be binding upon the parties and their respective successors and assigns.
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8.
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Counterparts: This Agreement may be executed in any number of counterparts provided each party executes a counterpart and all of these counterparts taken together shall for all purposes constitute one agreement, binding on the parties notwithstanding that all parties are not signatory to the same counterpart. Counterparts may be executed either in original or faxed form and the parties adopt any signatures received by a receiving fax machine as original signatures of the parties; provided, however, that any party providing its signature in such manner shall promptly forward to the other party an original of the signed copy of this Agreement which was so faxed.
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