Lorus
Therapeutics Inc.
|
||
Date:
August 30, 2007
|
By: | /s/ “Elizabeth Williams” |
Elizabeth Williams | ||
Director of Finance |
99.1
|
Antisense
Patent Assets Transfer Agreement dated July 10, 2007
|
99.2
|
Genesense
Share Purchase Agreement dated July 10, 2007
|
99.3
|
NuChem
Share Purchase Agreement dated July 10, 2007
|
99.4
|
Prepaid
Expenses and Receivables Transfer Agreement dated July 10,
2007
|
99.5
|
Tangible
Business Assets Transfer Agreement dated July 10, 2007
|
99.6
|
Virulizin
and Small Molecule Patent Assets Transfer Agreement dated July 10,
2007
|
99.7
|
Escrow
Agreement
|
99.8
|
Amended
and Restated General Security Agreement
|
99.9
|
Amended
and Restated Guarantee and Indemnity
|
99.10
|
Indeminification
Agreement
|
ARTICLE
1 -
|
INTERPRETATION
|
1
|
1.01
|
Definitions
|
1
|
1.02
|
Headings
|
2
|
1.03
|
Extended
Meanings
|
2
|
1.04
|
Statutory
References
|
3
|
1.05
|
Accounting
Principles
|
3
|
1.06
|
Currency
|
3
|
1.07
|
Schedules
|
3
|
ARTICLE
2 -
|
SALE
AND PURCHASE
|
3
|
2.01
|
Assets
to be Sold and Purchased
|
3
|
2.02
|
Purchase
Price
|
3
|
2.03
|
Payment
of Purchase Price
|
3
|
2.04
|
Non-Assignable
Contracts and Commitments
|
4
|
ARTICLE
3 -
|
REPRESENTATIONS
AND WARRANTIES
|
4
|
3.01
|
Vendor’s
Representations and Warranties
|
4
|
3.02
|
Purchaser’s
Representations and Warranties
|
5
|
3.03
|
Survival
of Representations, Warranties and Covenants
|
6
|
ARTICLE
4 -
|
COVENANTS
|
6
|
4.01
|
Covenants
of the Vendor
|
6
|
4.02
|
Covenants
of the Purchaser
|
6
|
4.03
|
Cooperation
|
7
|
4.04
|
Cooperation
on Tax Matters
|
7
|
ARTICLE
5 -
|
CONDITIONS
|
7
|
5.01
|
Conditions
for the Benefit of the Purchaser
|
7
|
5.02
|
Conditions
for the Benefit of the Vendor
|
8
|
ARTICLE
6 -
|
CLOSING
ARRANGEMENTS
|
9
|
6.01
|
Closing
|
9
|
6.02
|
Examination
of Records and Assets
|
9
|
ARTICLE
7 -
|
GENERAL
|
10
|
7.01
|
Further
Assurances
|
10
|
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
|
11
|
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
|
Schedule
A
|
-
|
Purchased
Assets; and
|
Schedule
2.03
|
-
|
New
Lorus Note 1.
|
2.01
|
Assets
to be Sold and
Purchased
|
2.02
|
Purchase
Price
|
2.03
|
Payment
of Purchase Price
|
2.04
|
Non-Assignable
Contracts and
Commitments
|
(1)
|
The
Vendor will use commercially reasonable efforts (other than the payment
of
money or assumption of obligations) to obtain any third party consents
or
waivers necessary to permit the assignment to, and assumption by,
the
Purchaser of all of the contracts and other commitments to be assigned
to
and assumed by the Purchaser pursuant to this
Agreement.
|
(2)
|
Nothing
in this Agreement will constitute an agreement to assign or an attempted
assignment of any contract or other commitment for which any requisite
consent or waiver to the assignment thereof has not been
obtained. To the extent permitted by Applicable Law, if any
requisite consent or waiver to the assignment thereof has not been
obtained on or prior to the Time of Closing, the applicable contract
or
other commitment will be held by the Vendor in trust for the benefit
of
the Purchaser and the Purchaser will perform the obligations of the
Vendor
thereunder and be entitled to receive all money becoming due and
payable
under and other benefits derived from the contract or other commitment
immediately after receipt by the
Vendor.
|
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.
|
|
(e)
|
The
Purchased Assets are in good standing and have been duly registered
or
applications to register the same have been filed in all appropriate
offices to preserve the rights therein and of the Vendor
thereto.
|
|
(f)
|
The
Vendor is registered under Part IX of the
Excise Tax Act
(Canada)
with registration number 88289 4165
RT0001.
|
|
(g)
|
The
Vendor is not a non-resident person within the meaning of section
116 of
the Tax Act.
|
|
(h)
|
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 83796 5961
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)
|
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,
will 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
|
Cooperation
|
4.04
|
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;
|
|
(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
|
|
(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;
|
|
(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; and
|
|
(d)
|
the
Purchaser will have delivered to the Vendor the New Lorus Note
1.
|
(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:
|
||||
LORUS
THERAPEUTICS INC.
|
||||
Per:
|
“Aiping
Young”
|
|||
Per:
|
“Graham
Strachan”
|
|||
|
•
|
the
AntiSense patent assets listed in Exhibit A attached hereto;
and
|
|
•
|
the
exclusive license agreement dated June 20, 1997 among The University
of
Manitoba, The Manitoba Cancer Treatment and Research Foundation,
Dr. Jim
A. Wright, Dr. Aiping Young and GeneSense Technologies
Inc.
|
LORUS
THERAPEUTICS INC.
|
||
Per:
|
||
Name:
|
||
Title:
|
ARTICLE
1 -
|
INTERPRETATION
|
1
|
1.01
|
Definitions
|
1
|
1.02
|
Headings
|
2
|
1.03
|
Extended
Meanings
|
3
|
1.04
|
Statutory
References
|
3
|
1.05
|
Accounting
Principles
|
3
|
1.06
|
Currency
|
3
|
1.07
|
Schedules
|
3
|
ARTICLE
2 -
|
PURCHASE
AND SALE
|
3
|
2.01
|
Shares
to be Sold and Purchased
|
3
|
2.02
|
Purchase
Price
|
4
|
2.03
|
Satisfaction
of Purchase Price
|
4
|
2.04
|
Closing
|
4
|
2.05
|
Closing
Adjustment
|
4
|
ARTICLE
3 -
|
REPRESENTATIONS
AND WARRANTIES
|
5
|
3.01
|
Vendor’s
Representations and Warranties
|
5
|
3.02
|
Purchaser’s
Representations and Warranties
|
6
|
3.03
|
Survival
of Representations, Warranties and Covenants
|
6
|
ARTICLE
4 -
|
COVENANTS
|
7
|
4.01
|
Cooperation
|
7
|
4.02
|
Cooperation
on Tax Matters
|
7
|
ARTICLE
5 -
|
CONDITIONS
|
7
|
5.01
|
Conditions
for the Benefit of the Purchaser
|
7
|
5.02
|
Conditions
for the Benefit of the Vendor
|
8
|
ARTICLE
6 -
|
GENERAL
|
9
|
6.01
|
Further
Assurances
|
9
|
6.02
|
Time
of the Essence
|
9
|
6.03
|
Benefit
of the Agreement
|
9
|
6.04
|
Entire
Agreement
|
9
|
6.05
|
Amendments
and Waiver
|
9
|
6.06
|
Notices
|
10
|
6.07
|
Governing
Law
|
11
|
6.08
|
Counterparts
|
11
|
6.09
|
Facsimiles
|
11
|
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
|
Shares
to be Sold and
Purchased
|
2.02
|
Purchase
Price
|
2.03
|
Satisfaction
of Purchase Price
|
|
(a)
|
by
the assumption, fulfillment and performance by the Purchaser, from
and
after the Time of Closing, of the Assumed Liabilities;
and
|
|
(b)
|
by
the issuance by the Purchaser to the Vendor of a demand non-interest
bearing promissory note in the aggregate principal amount
of
[XXX]
(the “
New Lorus Note
2”
), substantially in the form of the promissory note attached
hereto as Schedule A.
|
2.04
|
Closing
|
2.05
|
Closing
Adjustment
|
3.01
|
Vendor’s
Representations and
Warranties
|
|
(a)
|
The
Corporation 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
authorized capital of the Corporation consists of (i) an unlimited
number
of common shares, and (ii) an unlimited number of preferred
shares.
|
|
(c)
|
All
of the issued and outstanding Shares are beneficially owned by
the Vendor
and pledged to TEMIC pursuant to a share pledge agreement dated
October 6,
2004 (the “
Share Pledge
Agreement
”).
|
|
(d)
|
The
Vendor has the power, authority and right to enter into and deliver
this
Agreement and to transfer the legal and beneficial title and ownership
of
the Shares to the Purchaser, subject to all existing Charges, including
the Share Pledge Agreement.
|
|
(e)
|
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.
|
|
(f)
|
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 or
of the Corporation;
|
|
(ii)
|
any
agreement or other instrument to which the Vendor or the Corporation
is a
party or by which the Vendor or the Corporation is bound;
or
|
|
(iii)
|
any
Applicable Law in respect of which the Vendor or the Corporation
must
comply, except to the extent that such violation would not reasonably
be
expected to limit in any material manner the operations of the
Corporation’s business as they are presently
conducted.
|
|
(g)
|
The
Vendor is not a non-resident person within the meaning of section
116 of
the Tax Act.
|
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.
|
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 Shares 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)
|
The
respective covenants of the Vendor and the Purchaser contained
in this
Agreement shall survive the completion of the sale and purchase
of the
Shares 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
|
Cooperation
|
4.02
|
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 Shares
is
subject to the following conditions which are for the exclusive
benefit of
the Purchaser 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 shall 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 shall be furnished with such certificates, affidavits
or
statutory declarations of the Corporation and of the Vendor or
of officers
of the Corporation and 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 or by the Corporation,
as the
case may be, at or prior to the Time of Closing have been performed
and
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 Shares contemplated hereby and to permit the business of the
Corporation to be carried on as now
conducted;
|
|
(e)
|
no
action or proceeding in Canada will be pending or threatened by
any person
to enjoin, restrict or prohibit
|
|
(i)
|
the
sale and purchase of the Shares contemplated hereby;
or
|
|
(ii)
|
the
right of the Corporation to conduct the business of the Corporation;
and
|
|
(f)
|
all
necessary steps and proceedings will have been taken to permit
the Shares
to be duly and regularly transferred to 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 shall not have been performed or complied with at or prior
to the
Time of Closing, the Purchaser may, without limiting any other
right that
the Purchaser may have, at its sole option,
either:
|
|
(a)
|
rescind
this Agreement by notice to the Vendor, and in such event the Purchaser
shall 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 Shares
is
subject to the following conditions which are for the exclusive
benefit of
the Vendor 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
shall 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 shall 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;
|
|
(c)
|
the
Vendor shall be furnished with such certificates, affidavits or
statutory
declarations 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 and complied with and that the representations
and warranties of the Purchaser herein given are true and correct
at the
Time of Closing; and
|
|
(d)
|
the
Purchaser will have delivered to the Vendor an original executed
copy of
Newco Note 2.
|
(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 shall not have been performed or complied with at or prior
to the
Time of Closing, the Vendor may, without limiting any other right
that the
Vendor may have, at its sole option,
either:
|
|
(a)
|
rescind
this Agreement by notice to the Purchaser, and in such event the
Vendor
shall 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
|
Further
Assurances
|
6.02
|
Time
of the Essence
|
6.03
|
Benefit
of the Agreement
|
6.04
|
Entire
Agreement
|
6.05
|
Amendments
and Waiver
|
6.06
|
Notices
|
6.07
|
Governing
Law
|
6.08
|
Counterparts
|
6.09
|
Facsimiles
|
4325231
CANADA INC.
|
|||
Per:
|
“Aiping
Young”
|
||
Per:
|
“Graham
Strachan”
|
||
LORUS
THERAPEUTICS INC.
|
|||
Per:
|
“Aiping
Young”
|
||
Per:
|
“Graham
Strachan”
|
||
LORUS
THERAPEUTICS INC.
|
||
Per:
|
||
Name:
|
||
Title:
|
|
•
|
Liabilities
in the aggregate amount of
[XXX]
relating to
accounts payable, accrued liabilities and transaction costs in
connection
with the arrangement of the Vendor’s business by way of plan of
arrangement under Section 192(3) of the
Canada Business Corporations
Act
.
|
ARTICLE
1 -
|
INTERPRETATION
|
1
|
1.01
|
Definitions
|
1
|
1.02
|
Headings
|
2
|
1.03
|
Extended
Meanings
|
2
|
1.04
|
Statutory
References
|
3
|
1.05
|
Accounting
Principles
|
3
|
1.06
|
Currency
|
3
|
1.07
|
Schedules
|
3
|
ARTICLE
2 -
|
PURCHASE
AND SALE
|
3
|
2.01
|
Shares
to be Sold and Purchased
|
3
|
2.02
|
Purchase
Price
|
3
|
2.03
|
Satisfaction
of Purchase Price
|
3
|
2.04
|
Closing
|
4
|
ARTICLE
3 -
|
REPRESENTATIONS
AND WARRANTIES
|
4
|
3.01
|
Vendor’s
Representations and Warranties
|
4
|
3.02
|
Purchaser’s
Representations and Warranties
|
5
|
3.03
|
Survival
of Representations, Warranties and Covenants
|
6
|
ARTICLE
4 -
|
COVENANTS
|
6
|
4.01
|
Cooperation
|
6
|
4.02
|
Cooperation
on Tax Matters
|
6
|
ARTICLE
5 -
|
CONDITIONS
|
6
|
5.01
|
Conditions
for the Benefit of the Purchaser
|
6
|
5.02
|
Conditions
for the Benefit of the Vendor
|
7
|
ARTICLE
6 -
|
GENERAL
|
8
|
6.01
|
Further
Assurances
|
8
|
6.02
|
Time
of the Essence
|
8
|
6.03
|
Benefit
of the Agreement
|
9
|
6.04
|
Entire
Agreement
|
9
|
6.05
|
Amendments
and Waiver
|
9
|
6.06
|
Notices
|
9
|
6.07
|
Governing
Law
|
10
|
6.08
|
Counterparts
|
10
|
6.09
|
Facsimiles
|
10
|
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
|
Shares
to be Sold and
Purchased
|
2.02
|
Purchase
Price
|
2.03
|
Satisfaction
of Purchase Price
|
2.04
|
Closing
|
3.01
|
Vendor’s
Representations and
Warranties
|
|
(a)
|
The
Corporation is a corporation duly incorporated, organized and subsisting
under the laws of Ontario with the corporate power to own its assets
and
to carry on its business.
|
|
(b)
|
The
authorized capital of the Corporation consists of (i) an unlimited
number
of common shares, and (ii) an unlimited number of preferred
shares.
|
|
(c)
|
All
of the issued and outstanding Shares are beneficially owned by
the Vendor
and pledged to TEMIC pursuant to a share pledge agreement dated
October 6,
2004 (the “
Share Pledge
Agreement
”).
|
|
(d)
|
The
Vendor has the power, authority and right to enter into and deliver
this
Agreement and to transfer the legal and beneficial title and ownership
of
the Shares to the Purchaser, subject to all existing Charges, including
the Share Pledge Agreement.
|
|
(e)
|
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.
|
|
(f)
|
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 or
of the Corporation;
|
|
(ii)
|
any
agreement or other instrument to which the Vendor or the Corporation
is a
party or by which the Vendor or the Corporation is bound;
or
|
|
(iii)
|
any
Applicable Law in respect of which the Vendor or the Corporation
must
comply, except to the extent that such violation would not reasonably
be
expected to limit in any material manner the operations of the
Corporation’s business as they are presently
conducted.
|
|
(g)
|
The
Vendor is not a non-resident person within the meaning of section
116 of
the Tax Act.
|
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.
|
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 Shares 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)
|
The
respective covenants of the Vendor and the Purchaser contained
in this
Agreement shall survive the completion of the sale and purchase
of the
Shares 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
|
Cooperation
|
4.02
|
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 Shares
is
subject to the following conditions which are for the exclusive
benefit of
the Purchaser 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 shall 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 shall be furnished with such certificates, affidavits
or
statutory declarations of the Corporation and of the Vendor or
of officers
of the Corporation and 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 or by the Corporation, as the case may be,
at or prior
to the Time of Closing have been performed and 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 Shares contemplated hereby and to permit the business of the
Corporation to be carried on as now
conducted;
|
|
(e)
|
no
action or proceeding in Canada will be pending or threatened by
any person
to enjoin, restrict or prohibit
|
|
(i)
|
the
sale and purchase of the Shares contemplated hereby;
or
|
|
(ii)
|
the
right of the Corporation to conduct the business of the Corporation;
and
|
|
(f)
|
all
necessary steps and proceedings will have been taken to permit
the Shares
to be duly and regularly transferred to 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 shall not have been performed or complied with at or prior
to the
Time of Closing, the Purchaser may, without limiting any other
right that
the Purchaser may have, at its sole option,
either:
|
|
(a)
|
rescind
this Agreement by notice to the Vendor, and in such event the Purchaser
shall 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 Shares
is
subject to the following conditions which are for the exclusive
benefit of
the Vendor 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
shall 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 shall 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;
|
|
(c)
|
the
Vendor shall be furnished with such certificates, affidavits or
statutory
declarations 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 and complied with
and
that the representations and warranties of the Purchaser herein
given are
true and correct at the Time of Closing;
and
|
|
(d)
|
the
Purchaser will have delivered to the Vendor an original executed
copy of
Newco Note 3.
|
(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 shall not have been performed or complied with at or prior
to the
Time of Closing, the Vendor may, without limiting any other right
that the
Vendor may have, at its sole option,
either:
|
|
(a)
|
rescind
this Agreement by notice to the Purchaser, and in such event the
Vendor
shall 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
|
Further
Assurances
|
6.02
|
Time
of the Essence
|
6.03
|
Benefit
of the Agreement
|
6.04
|
Entire
Agreement
|
6.05
|
Amendments
and Waiver
|
6.06
|
Notices
|
6.07
|
Governing
Law
|
6.08
|
Counterparts
|
6.09
|
Facsimiles
|
4325231
CANADA INC.
|
|||
Per:
|
“Aiping
Young”
|
||
Per:
|
“Graham
Strachan”
|
||
LORUS
THERAPEUTICS INC.
|
|||
Per:
|
“Aiping
Young”
|
||
Per:
|
“Graham
Strachan”
|
||
LORUS
THERAPEUTICS INC.
|
||
Per:
|
||
Name:
|
||
Title:
|
ARTICLE
1 -
|
INTERPRETATION
|
1
|
1.01
|
Definitions
|
1
|
1.02
|
Headings
|
2
|
1.03
|
Extended
Meanings
|
2
|
1.04
|
Statutory
References
|
3
|
1.05
|
Accounting
Principles
|
3
|
1.06
|
Currency
|
3
|
1.07
|
Schedules
|
3
|
ARTICLE
2 -
|
SALE
AND PURCHASE
|
3
|
2.01
|
Assets
to be Sold and Purchased
|
3
|
2.02
|
Purchase
Price
|
3
|
2.03
|
Payment
of Purchase Price
|
4
|
2.04
|
Closing
Adjustment
|
4
|
ARTICLE
3 -
|
REPRESENTATIONS
AND WARRANTIES
|
4
|
3.01
|
Vendor’s
Representations and Warranties
|
4
|
3.02
|
Purchaser’s
Representations and Warranties
|
5
|
3.03
|
Survival
of Representations, Warranties and Covenants
|
6
|
ARTICLE
4 -
|
COVENANTS
|
6
|
4.01
|
Covenants
of the Vendor
|
6
|
4.02
|
Covenants
of the Purchaser
|
6
|
4.03
|
Cooperation
|
7
|
4.04
|
Cooperation
on Tax Matters
|
7
|
ARTICLE
5 -
|
CONDITIONS
|
7
|
5.01
|
Conditions
for the Benefit of the Purchaser
|
7
|
5.02
|
Conditions
for the Benefit of the Vendor
|
8
|
ARTICLE
6 -
|
CLOSING
ARRANGEMENTS
|
9
|
6.01
|
Closing
|
9
|
6.02
|
Examination
of Records and Assets
|
9
|
ARTICLE
7 -
|
GENERAL
|
10
|
7.01
|
Further
Assurances
|
10
|
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
|
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
|
2.04
|
Closing
Adjustment
|
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.
|
|
(e)
|
The
Vendor is registered under Part IX of the
Excise Tax Act
(Canada)
with registration number 13175 3915
RT0001.
|
|
(f)
|
The
Vendor is not a non-resident person within the meaning of section
116 of
the Tax Act.
|
|
(g)
|
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)
|
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,
will 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
|
Cooperation
|
4.04
|
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;
|
|
(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
|
|
(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”
|
|||
|
•
|
[XXX]
in
respect of accounts receivable;
|
|
•
|
[XXX]
in respect of GST input tax
credits;
|
|
•
|
[XXX]
in respect of QST input tax
credits;
|
|
•
|
[XXX]
in respect of accrued interest;
|
|
•
|
[XXX]
in respect of employee advances;
|
|
•
|
[XXX]
in respect of prepaid amounts;
|
|
•
|
[XXX]
in respect of security deposits and
advances;
|
|
•
|
[XXX]
in respect of investment tax credits;
and
|
|
•
|
[XXX]
in respect of deferred financing
costs.
|
ARTICLE
1 -
|
INTERPRETATION
|
2
|
1.01
|
Definitions
|
2
|
1.02
|
Headings
|
4
|
1.03
|
Extended
Meanings
|
4
|
1.04
|
Statutory
References
|
5
|
1.05
|
Accounting
Principles
|
5
|
1.06
|
Currency
|
5
|
1.07
|
Schedules
|
5
|
ARTICLE
2 -
|
SALE
AND PURCHASE
|
5
|
2.01
|
Assets
to be Sold and Purchased
|
5
|
2.02
|
Purchase
Price
|
5
|
2.03
|
Purchase
Price Allocation
|
6
|
2.04
|
Payment
of Purchase Price
|
6
|
2.05
|
Closing
Adjustment
|
6
|
2.06
|
Non-Assignable
Contracts and Commitments
|
6
|
ARTICLE
3 -
|
REPRESENTATIONS
AND WARRANTIES
|
7
|
3.01
|
Vendor’s
Representations and Warranties
|
7
|
3.02
|
Purchaser’s
Representations and Warranties
|
8
|
3.03
|
Survival
of Representations, Warranties and Covenants
|
8
|
ARTICLE
4 -
|
COVENANTS
|
9
|
4.01
|
Covenants
of the Vendor
|
9
|
4.02
|
Covenants
of the Purchaser
|
9
|
4.03
|
Cooperation
|
9
|
4.04
|
Cooperation
on Tax Matters
|
10
|
ARTICLE
5 -
|
CONDITIONS
|
10
|
5.01
|
Conditions
for the Benefit of the Purchaser
|
10
|
5.02
|
Conditions
for the Benefit of the Vendor
|
11
|
ARTICLE
6 -
|
CLOSING
ARRANGEMENTS
|
12
|
6.01
|
Closing
|
12
|
6.02
|
Examination
of Records and Assets
|
12
|
ARTICLE
7 -
|
GENERAL
|
12
|
7.01
|
Further
Assurances
|
12
|
7.02
|
Time
of the Essence
|
12
|
7.03
|
Benefit
of the Agreement
|
13
|
7.04
|
Entire
Agreement
|
13
|
7.05
|
Amendments
and Waivers
|
13
|
7.06
|
Notices
|
13
|
7.07
|
Governing
Law
|
14
|
7.08
|
Counterparts
|
15
|
7.09
|
Facsimiles
|
15
|
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.
|
|
(a)
|
assets
which are being transferred to the Purchaser
under:
|
|
(i)
|
the
Antisense Patent Assets Transfer
Agreement;
|
|
(ii)
|
the
Virulizin and Small Molecule Patent Assets Transfer
Agreement;
|
|
(iii)
|
the
Prepaid Expenses and Receivables Transfer
Agreement;
|
|
(iv)
|
the
GeneSense Share Purchase Agreement;
and
|
|
(v)
|
the
NuChem Share Purchase Agreement;
|
|
(b)
|
the
assets described in Schedule A; and
|
|
(c)
|
any
cash and cash equivalents to remain in Old Lorus as contemplated
in the
Plan of Arrangement.
|
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
|
|
(a)
|
in
respect of the Purchased Assets, other than the Unadjusted Assets,
[XXX]
, subject to adjustment in accordance with Section
2.05; and
|
|
(b)
|
in
respect of each of the Unadjusted Assets, an amount equal to the
Vendor’s
cost thereof,
|
2.03
|
Purchase
Price Allocation
|
2.04
|
Payment
of Purchase Price
|
2.05
|
Closing
Adjustment
|
2.06
|
Non-Assignable
Contracts and
Commitments
|
(1)
|
The
Vendor will use commercially reasonable efforts (other than the
payment of
money or assumption of obligations) to obtain any third party consents
or
waivers necessary to permit the assignment to, and assumption by,
the
Purchaser of all of the contracts and other commitments to be assigned
to
and assumed by the Purchaser pursuant to this
Agreement.
|
(2)
|
Nothing
in this Agreement will constitute an agreement to assign or an
attempted
assignment of any contract or other commitment for which any requisite
consent or waiver to the assignment thereof has not been
obtained. To the extent permitted by Applicable Law, if any
requisite consent or waiver to the assignment thereof has not been
obtained on or prior to the Time of Closing, the applicable contract
or
other commitment will be held by the Vendor in trust for the benefit
of
the Purchaser and the Purchaser will perform the obligations of
the Vendor
thereunder and be entitled to receive all money becoming due and
payable
under and other benefits derived from the contract or other commitment
immediately after receipt by the
Vendor.
|
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.
|
|
(e)
|
The
Vendor is registered under Part IX of the
Excise Tax Act
(Canada)
with registration number 13175 3915
RT0001.
|
|
(f)
|
The
Vendor is not a non-resident person within the meaning of section
116 of
the Tax Act.
|
|
(g)
|
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)
|
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.
|
(2)
|
The
Purchaser shall provide the Vendor with a purchase exemption certificate
for any tangible Purchased Assets that are exempt from Ontario
retail
sales tax.
|
4.03
|
Cooperation
|
4.04
|
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;
|
|
(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
|
|
(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”
|
|||
|
•
|
computer
hardware;
|
|
•
|
computer
software;
|
|
•
|
machinery
and equipment;
|
|
•
|
office
furniture and equipment;
|
|
•
|
office
leaseholds;
|
|
•
|
new
animal facility leasehold;
|
|
•
|
operating
and scientific inventory;
|
|
•
|
Intellectual
Property;
|
|
•
|
customer
lists;
|
|
•
|
Books
and Records;
|
|
•
|
Permits
and Licences;
|
|
•
|
the
Head Office
Lease;
and
|
|
•
|
the
Remaining Contracts.
|
No.
|
Purchased
Asset
|
Amount
of Purchase Price Allocated Thereto
|
1.
|
computer
hardware
|
[XXX]
|
2.
|
computer
software
|
[XXX]
|
3.
|
machinery
and equipment
|
[XXX]
|
4.
|
office
furniture and equipment
|
[XXX]
|
5.
|
office
leaseholds
|
[XXX]
|
6.
|
leasehold
- new animal facility
|
[XXX]
|
7.
|
operating
and scientific inventories
|
[XXX]
|
8.
|
Intellectual
Property, customer lists and Books and Records
|
[XXX]
|
9.
|
Permits
and Licences
|
[XXX]
|
10.
|
the
Head Office Lease
|
[XXX]
|
11.
|
the
Remaining Contracts
|
[XXX]
The
purchase price is satisfied in full by the assumption by the
Purchaser of
all of the Vendor’s obligations and liabilities under the Remaining
Contracts.
|
12.
|
the
Remaining Assets
|
[XXX]
|
ARTICLE
1 -
|
INTERPRETATION
|
1
|
1.01 |
Definitions
|
1
|
1.02
|
Headings
|
2
|
1.03
|
Extended
Meanings
|
2
|
1.04
|
Statutory
References
|
3
|
1.05
|
Accounting
Principles
|
3
|
1.06
|
Currency
|
3
|
1.07
|
Schedules
|
3
|
ARTICLE
2 -
|
SALE
AND PURCHASE
|
3
|
2.01
|
Assets
to be Sold and Purchased
|
3
|
2.02
|
Purchase
Price
|
3
|
2.03
|
Payment
of Purchase Price
|
3
|
ARTICLE
3 -
|
REPRESENTATIONS
AND WARRANTIES
|
4
|
3.01
|
Vendor’s
Representations and Warranties
|
4
|
3.02
|
Purchaser’s
Representations and Warranties
|
5
|
3.03
|
Survival
of Representations, Warranties and Covenants
|
5
|
ARTICLE
4 -
|
COVENANTS
|
6
|
4.01
|
Covenants
of the Vendor
|
6
|
4.02
|
Covenants
of the Purchaser
|
6
|
4.03
|
Section
85(1) Election
|
6
|
4.04
|
Cooperation
|
6
|
4.05
|
Cooperation
on Tax Matters
|
7
|
ARTICLE
5 -
|
CONDITIONS
|
7
|
5.01
|
Conditions
for the Benefit of the Purchaser
|
7
|
5.02
|
Conditions
for the Benefit of the Vendor
|
8
|
ARTICLE
6 -
|
CLOSING
ARRANGEMENTS
|
9
|
6.01
|
Closing
|
9
|
6.02
|
Examination
of Records and Assets
|
9
|
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
|
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.
|
|
(e)
|
The
Vendor is registered under Part IX of the
Excise Tax Act
(Canada)
with registration number 13175 3915
RT0001.
|
|
(f)
|
The
Vendor is not a non-resident person within the meaning of section
116 of
the Tax Act.
|
|
(g)
|
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)
|
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;
|
|
(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
|
|
(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.
|
Name
|
Title
|
Signature
|
||
Michael
De Cotiis
|
President
|
|||
6707157
CANADA INC.
|
||||
By:
|
|
|||
Michael
De Cotiis
President
|
Name
|
Title
|
Signature
|
||
Aiping
Young
|
Chief
Executive Officer
|
|||
LORUS
THERAPEUTICS INC.
|
||
By:
|
||
Name:
Title:
|
Acceptance
Fee
for all services relating to the review of the draft
escrow
agreement and the giving of comments thereon to legal counsel,
attendance
at closing and the receipt of escrowed property, deposit of
the escrowed
property in safekeeping and the set up of the administration
of the
agreement. (Up to 10 hours, thereafter at
$250/hour).
|
$
3,000.00*
|
Annual
Retainer Fee
as escrow agent, for each year or part thereof,
including the holding of the escrowed funds and one investment
transaction
per month.
|
6,500.00*
|
Each
Additional investment purchase/sale
|
65.00
|
Releases:
review of each notice, pursuant to the agreement,
confirming
satisfaction of the conditions for the release of
funds
|
100.00
|
Disbursements, subject to a minimum of $300 |
|
each cheque |
5.00
|
each
EFT, wire transfer or certified cheque
|
100.00
|
Tax reporting, each supplementary form ($340.00 minimum) |
5.00
|
Tax
reporting, each summary
|
150.00
|
Professional
Services:
Fees for additional services, not previously described,
will be charged on the basis of time, effort and responsibility
involved.
|
BY:
|
GENESENSE
TECHNOLOGIES INC.
, a corporation incorporated under the laws of
Canada
(the
“Company”)
|
IN
FAVOUR OF
:
|
THE
ERIN MILLS INVESTMENT CORPORATION
, a corporation incorporated
under the laws of the Province of Ontario
|
(the
“Investor”)
|
|
RECITALS:
|
A.
|
The
Company entered into a general security agreement dated as of October
6,
2004 in favour of the Investor, as amended by the assignment, novation
and
amendment agreement and consent dated as of May 1, 2007 between Lorus
Therapeutics Inc. (“Lorus”), the Company, New Lorus (as defined below) and
the Investor, as amended or supplemented from time to time, (the
“Assignment Agreement”).
|
B.
|
Lorus
entered into a corporate reorganization transaction completed by
way of
plan of arrangement (the “Arrangement”) on July 10, 2007 under the
Canada Business Corporations Act
pursuant to which Lorus
transferred substantially all of its assets, including its antisense
patent assets, to a new corporate entity, 6650309 Canada Inc., which
will
carry on business under the name “Lorus Therapeutics Inc.” (“New
Lorus”).
|
1.1
|
Definitions
|
|
1.1.12.1
|
a
bill, note or cheque within the meaning of the
Bills of Exchange
Act
(Canada) or any other writing that evidences a right to the
payment of Money and is of a type that in the ordinary course of
business
is transferred by delivery with any necessary endorsement or assignment,
or
|
|
1.1.12.2
|
a
letter of credit and an advice of credit if the letter or advice
states
that it must be surrendered upon claiming payment
thereunder,
|
|
1.1.23.1
|
issued
in bearer, order or registered
form,
|
|
1.1.23.2
|
of
a type commonly dealt in upon securities exchanges or markets or
commonly
recognized in any area in which it is issued or dealt in as a medium
for
investment,
|
|
1.1.23.3
|
one
of a class or series or by its terms is divisible into a class or
series
of documents, and
|
|
1.1.23.4
|
evidence
of a share, participation or other interest in property or in an
enterprise or is evidence of an obligation of the
issuer,
|
1.2
|
Headings
|
1.3
|
References
to Articles and Sections
|
1.4
|
Currency
|
1.5
|
Gender,
and Number
|
1.6
|
Invalidity
of Provisions
|
1.7
|
Amendment,
Waiver
|
1.8
|
Governing
Law, Attornment
|
2.1
|
Creation
of Security Interest
|
2.2
|
Exception
for Last Day of Leases
|
2.3
|
Exception
for Contractual Rights
|
2.4
|
Attachment
|
3.1
|
Obligations
Secured
|
4.1
|
Restrictions
on Dealing with Collateral
|
4.2
|
Verification
of Collateral
|
4.3
|
Expenses
|
4.4
|
Further
Assurances
|
5.1
|
Securities
|
6.1
|
Collection
of Debts
|
7.1
|
Appointment
of Receiver
|
|
7.1.2.1
|
to
make payments to Persons having prior rights or Liens on properties
on
which the Company may hold a Lien and to Persons having prior rights
or
Liens on the Collateral; and
|
|
7.1.2.2
|
to
demand, commence, continue or defend proceedings in the name of the
Investor or of the Receiver or in the name of the Company for the
purpose
of protecting, seizing, collecting, realizing or obtaining possession
or
payment of the Collateral and to give effectual receipts and discharges
therefor.
|
7.2
|
Exercise
of Remedies by Investor
|
7.3
|
Possession
of Collateral
|
7.4
|
Remedies
Not Exclusive
|
7.5
|
Company
Liable for Deficiency
|
7.6
|
Exclusion
of Liability of Investor and
Receiver
|
7.7
|
Notice
of Sale
|
8.1
|
Application
of Proceeds
|
|
8.1.5.1
|
was
perfected by possession, the continuance of which was prevented by
the
Investor or the Receiver taking possession of Collateral,
or
|
|
8.1.5.2
|
was,
immediately before the sale, lease or other disposition by the Investor
or
the Receiver, perfected by
registration;
|
8.2
|
Proof
of Interest
|
8.3
|
Payment
Into Court
|
8.4
|
Monies
Actually Received
|
9.1
|
Power
of Attorney
|
9.2
|
Set-Off
|
9.3
|
Dealings
with Others
|
9.4
|
No
Obligation to Advance
|
9.5
|
Perfection
of Security
|
9.6
|
Communication
|
|
(a)
|
if
to the Investor:
|
|
(b)
|
if
to the Company:
|
9.7
|
Successors
and Assigns
|
9.8
|
Copy
Received
|
BY:
|
GENESENSE
TECHNOLOGIES INC.
, a corporation incorporated under the laws of
Canada
|
(the
“Guarantor”)
|
|
IN
FAVOUR OF:
|
THE
ERIN MILLS INVESTMENT CORPORATION
, a corporation incorporated
under the laws of the Province of Ontario
|
(the
“Investor”)
|
|
A.
|
The
Guarantor entered into a guarantee and indemnity dated as of October
6,
2004 in favour of the Investor, as amended by the assignment, novation
and
amendment agreement and consent dated as of May 1, 2007 between
Lorus Therapeutics Inc. (“Lorus”), the Guarantor, New Lorus (as defined
below) and the Investor, as amended or supplemented from time to
time,
(the “Assignment Agreement”).
|
B.
|
Lorus
entered into a corporate reorganization transaction completed by
way of
plan of arrangement (the “Arrangement”) on July 10, 2007 under the
Canada Business Corporations Act
pursuant to which Lorus
transferred substantially all of its assets, including its antisense
patent assets, to a new corporate entity, 6650309 Canada Inc., which
will
carry on business under the name “Lorus Therapeutics Inc.” (“New
Lorus”).
|
C.
|
As
part of the arrangement New Lorus assumed all indebtedness of Lorus
to the
Investor.
|
1.1
|
Definitions
|
|
1.1.11.1
|
any
mortgage, charge, assignment, lien, security interest or other
encumbrance;
|
|
1.1.11.2
|
any
guarantee; and
|
|
1.1.11.3
|
any
other arrangement designed to secure the payment or performance of
any
obligation, liability or
indebtedness,
|
1.2
|
Headings
|
1.3
|
References
to Articles and Sections
|
1.4
|
References
to Agreements and
Enactments
|
1.5
|
Currency
|
1.6
|
Gender
and Number
|
1.7
|
Invalidity
of Provisions
|
1.8
|
No
Conditions Precedent
|
1.9
|
Entire
Agreement
|
1.10
|
Waiver,
Amendment
|
1.11
|
Governing
Law, Attornment
|
2.1
|
Guarantee
|
2.2
|
Indemnity
|
2.3
|
Guarantor
Liable as Principal
|
2.4
|
Continuing
Guarantee and Indemnity
|
2.5
|
Reinstatement
|
3.1
|
Demand
|
3.2
|
Right
to Immediate Payment or
Performance
|
3.3
|
Interest
|
3.4
|
Investor’s
Statement
|
4.1
|
Appropriation
|
4.2
|
Set-Off
by Investor
|
5.1
|
Postponement
of Debts
|
5.2
|
Guarantor
Not to Compete
|
6.1
|
Defects
in Creation of Guaranteed
Obligations
|
6.2
|
Liability
Absolute
|
6.3
|
Dealings
by Investor
|
|
6.3.1.1
|
advance
any funds to the Borrower or make or continue to make any financing
available to the Borrower constituting or relating to Guaranteed
Obligations;
|
|
6.3.1.2
|
permit
any increase or decrease, however significant, of the Guaranteed
Obligations or otherwise supplement, amend, restate or substitute,
in
whole or in part, however significant, the Guaranteed Obligations,
the
Subscription Agreement, the Debentures or any other agreement relating
to
any of the foregoing or, in whole or in part, terminate the availability
of any financing relating to, or demand repayment of any Guaranteed
Obligations;
|
|
6.3.1.3
|
enforce
or take action under or abstain from enforcing or taking action under
the
Subscription Agreement, the Debentures or any other agreement relating
to
any of the foregoing;
|
|
6.3.1.4
|
receive,
give up, subordinate, release or discharge any Security; supplement,
amend, restate, substitute, renew, abstain from renewing, perfect
or
abstain from perfecting or maintaining the perfection of any Security;
enforce, take action under or realize in any manner or abstain from
enforcing, taking action under or realizing any Security; deal with
or
abstain from dealing with all or any part of the undertaking, property
and
assets covered by any Security or allow or abstain from allowing
the
Borrower or other Persons to deal with all or any part of such
undertaking, property and assets;
|
|
6.3.1.5
|
renew
all or any part of the Guaranteed Obligations or grant extensions
of time
or any other indulgences to the Borrower or to any other guarantor
or
other Person liable directly or as surety for all or any part of
the
Guaranteed Obligations;
|
|
6.3.1.6
|
accept
or make any compositions or arrangements with or release, discharge
or
otherwise deal with or abstain from dealing with the Borrower or
any other
guarantor or other Person liable directly or as surety for all or
any part
of the Guaranteed Obligations;
|
|
6.3.1.7
|
in
whole or in part prove or abstain from proving a claim of the Investor
in
any Proceedings of or affecting the Borrower or any other Person;
and
|
|
6.3.1.8
|
agree
with the Borrower, any other guarantor or any other Person to do
anything
described in sections 6.3.1.1 to 6.3.1.7
above;
|
|
6.3.2.1
|
any
negligence of the Investor or its agents whatsoever, including without
limitation any negligence in respect of, or in the course of, any
matter
described in sections 6.3.1.1 to 6.3.1.7 above;
or
|
|
6.3.2.2
|
any
default under, or breach by the Investor or its agents of (i) the
Subscription Agreement, the Debenture, or any other agreement including
without limitation any Security, (ii) any applicable law, or (iii)
any
other obligation or duty binding the Investor or its
agents.
|
6.4
|
Waiver
of Notice
|
6.5
|
Expanded
Interpretation
|
7.1
|
Payment
of Costs and Expenses
|
7.2
|
No
Set-off By Guarantor
|
7.3
|
No
Waiver
|
7.4
|
Additional
Security
|
7.5
|
Assignment
by Investor
|
7.6
|
Communication
|
|
(a)
|
if
to the Investor:
|
|
(b)
|
if
to the Guarantor:
|
7.7
|
Successors
and Assigns
|
7.8
|
Copy
Received
|
GENESENSE
TECHNOLOGIES INC.
|
|||
by: |
“Aiping
Young”
|
||
Name: | |||
Title: | |||
by: |
|
||
Name: | |||
Title: |
1.1
|
Definitions
|
|
1.1.1
|
“
Agreement
”
means this Indemnification
Agreement;
|
|
1.1.2
|
“
Arrangement
”
has the meaning ascribed thereto in the recitals of this
Agreement.
|
|
1.1.3
|
“
Arrangement
Agreement
” means the arrangement agreement dated as of May 1,
2007 between Old Lorus, NuChem, GeneSense, New Lorus, Pinnacle
International Lands, Inc. and 6707157 Canada
Inc.;
|
|
1.1.4
|
“
Assets
”
means, collectively, the assets and the Subsidiary Shares transferred,
directly or indirectly, by Old Lorus to the Lorus Parties, as applicable,
pursuant to the Transfer Transactions (including any assets held
in trust
by Old Lorus for a Lorus Party);
|
|
1.1.5
|
“
Authorized
Authority
” means, in relation to any Claim, any (i) federal,
provincial, municipal or local governmental body (whether administrative,
legislative, executive or otherwise), both domestic and foreign,
(ii) court, agency, authority, commission, instrumentality,
regulatory body or other entity exercising executive, legislative,
judicial, taxing, regulation or administrative powers or functions
of or
pertaining to government, (iii) court, arbitrator, commission or body
exercising judicial, quasi-judicial, administrative or similar functions,
and (iv) other body or entity created under the authority of or
otherwise subject to the jurisdiction of any of the foregoing, including
securities exchanges, in each case having jurisdiction over such
Claim;
|
|
1.1.6
|
“
Business
Day
” means a day other than a Saturday, Sunday or other day when
banks in Toronto, Ontario or Vancouver, British Columbia, are not
generally open for business;
|
|
1.1.7
|
“Canadian
Securities Regulatory Authorities”
has the meaning ascribed to
such term in National Instrument 14-101 - Definitions, of the Canadian
Securities Administrators, as such instrument may be amended or
supplemented from time to time, or any similar instrument, rule or
regulation hereafter adopted by any of the Canadian Securities Regulatory
Authorities having substantially the same effect as such
instrument;
|
|
1.1.8
|
“
Claims
”
means any claim, demand, action, suit, arbitration, mediation, proceeding,
investigation or regulatory inquiry with respect to any given matter
for
which an Indemnified Party is entitled to be indemnified
hereunder;
|
|
1.1.9
|
“
Claim
Notice
” has the meaning ascribed thereto in
Section 4.1.1;
|
|
1.1.10
|
“
Confidential
Information
” has the meaning ascribed thereto in
Section 7.1;
|
|
1.1.11
|
“
Counsel
”
means legal counsel representing a Party hereunder with respect to
any
Claim;
|
|
1.1.12
|
“
Damage
Recoveries
” has the meaning ascribed thereto in
Section 2.2;
|
|
1.1.13
|
“
Demand
”
has the meaning ascribed thereto in
Section 2.3.1;
|
|
1.1.14
|
“
Determination
Date
” means the day upon which a Final Determination
occurs;
|
|
1.1.15
|
“
Effective
Date
” means the date of execution of this
Agreement;
|
|
1.1.16
|
“
Effective
Time
”
means 12:01 a.m. (Toronto time) on the Effective
Date;
|
|
1.1.17
|
“
Final
Determination
” means, with respect to any Claim, the point in
time when such Claim has been finally resolved for all purposes,
which
will be deemed to occur upon the happening of the earlier of the
following
events:
|
|
(i)
|
a
binding Settlement Agreement being reached among all parties to the
Claim
and the filing of all applicable discontinuances and fully executed
releases in form and content acceptable to New Lorus and the Indemnified
Parties, acting reasonably and without undue delay, delivered amongst
such
parties as appropriate, and the satisfaction by or on behalf of New
Lorus
of any obligations it may have pertaining to such agreement or agreements;
and
|
|
(ii)
|
the
final resolution of each of the actions comprising the Claim by the
Authorized Authority, including the completion of any appeal proceedings
relating to a Judgment or the expiry of all applicable appeal periods,
if
any, and the satisfaction by or on behalf of New Lorus of any obligations
it may have pertaining to such
Claim;
|
|
1.1.18
|
“GeneSense”
means GeneSense Technologies Inc., a corporation existing under the
laws
of Canada;
|
|
1.1.19
|
“
Governmental
Authority
” means any federal, provincial, territorial, state,
local or foreign government or any department, agency, board, tribunal
(judicial, quasi-judicial, administrative, quasi-administrative or
arbitral) or authority thereof or other political subdivision thereof
and
any Person exercising executive, legislative, judicial, regulatory
or
administrative
|
|
|
functions
of, or pertaining thereto or the operation thereof, including the
Canadian
Securities Regulatory Authorities (or any successor to any of them),
the
United States Securities and Exchange Commission (or any successor
entity), the Toronto Stock Exchange and the American Stock
Exchange;
|
|
1.1.20
|
“
Indemnified
Parties
” means Old Lorus and each of its directors, officers and
employees in respect of any matter for which an Indemnified Party
is
entitled to be indemnified hereunder and “
Indemnified
Party
” means any one of the Indemnified
Parties;
|
|
1.1.21
|
“
Indemnity
”
means the indemnity given by New Lorus as set forth in this
Agreement;
|
|
1.1.22
|
“
Judgment
”
means an order, decree, assessment or other form of decision of an
Authorized Authority which is in effect and has not been appealed
or, if
appealed, the effect of the order has not been stayed pending the
outcome
of such appeal;
|
|
1.1.23
|
“
Legal
Expenses
” means all reasonable legal fees, disbursements, court
or hearing costs and related expenses, disbursements or costs pertaining
to the assessment or conduct of a Claim, including costs associated
with
preliminary or interlocutory proceedings, hearings, interrogations,
discoveries, trials, appeals, negotiations, settlements and
comprises;
|
|
1.1.24
|
“
Liabilities
”
means, with respect to any Person, any liability, commitment or obligation
of such Person of any kind, character or description, whether known
or
unknown, absolute or contingent, accrued or unaccrued, disputed or
undisputed, liquidated or unliquidated, secured or unsecured, joint
or
several, due or to become due, vested or unvested, and whether or
not the
same is required to be accrued on the financial statements of such
Person;
|
|
1.1.25
|
“
Lorus
Parties
” means, collectively, New Lorus, NuChem and GeneSense and
“
Lorus Party
” means any of
them;
|
|
1.1.26
|
“
Losses
”
means all damages, losses, expenses (including fines and penalties),
third
party costs and Legal Expenses which are suffered, sustained, paid
or
incurred in relation to any Claim or
Liability;
|
|
1.1.27
|
“
Nominee
”
means any nominee which New Lorus appoints to perform the duties
and
responsibilities of New Lorus hereunder, if any such nominee is so
appointed;
|
|
1.1.28
|
“NuChem”
means NuChem Pharmaceuticals Inc., a corporation existing under the
laws
of the Province of Ontario;
|
|
1.1.29
|
“
Parties
”
means, collectively, Old Lorus and New
Lorus;
|
|
1.1.30
|
“
Person
”
includes any individual, firm, partnership, joint venture, limited
liability company, unlimited liability company, association, trust,
trustee, executor, administrator, legal personal representative,
estate,
group, body corporate, corporation, unincorporated association or
organization, Governmental Authority, syndicate or other entity,
whether
or not having legal status;
|
|
1.1.31
|
“
Power
”
has the meaning ascribed thereto in Section
3.1.1;
|
|
1.1.32
|
“
Settlement
Agreement
” means any agreement entered into by a Party which
requires or will require an Indemnified Party (i) to pay any amounts
to,
or for the benefit of, any other party to proceedings relating to
Claims,
or (ii) to otherwise incur Losses;
|
|
1.1.33
|
“
Solvency
Event
” means the occurrence of one or more of the following
events:
|
|
(i)
|
if
a decree or order of a court of competent jurisdiction is entered
adjudging a Lorus Party a bankrupt or insolvent or approving as properly
filed a petition seeking the winding-up of a Lorus Party under the
Companies’ Creditors Arrangement Act
(Canada), the
Bankruptcy
and Insolvency Act
(Canada) or the
Winding Up Act
(Canada)
or any other bankruptcy, insolvency or analogous laws or issuing
sequestration or process of execution against, or against any substantial
part of the assets of a Lorus Party or ordering the winding up or
liquidation of its affairs, and any such decree or order continues
unstayed and in effect for a period of 10 days;
or
|
|
(ii)
|
if
a Lorus Party becomes insolvent, makes any assignment in bankruptcy
or
makes any other assignment for the benefit of creditors, makes any
proposal under the
Bankruptcy and Insolvency Act
(Canada) or
any comparable law, seeks relief under the
Companies’
Creditors Arrangement Act
(Canada), the
Winding Up Act
(Canada) or any other bankruptcy, insolvency or analogous law,
is
adjudged bankrupt, files a petition or proposal to take advantage
of any
act of insolvency, consents to or acquiesces in the appointment of
a
trustee, receiver, receiver and manager, interim receiver, custodian,
sequestrator or other Person with similar powers of itself or of
all or
any substantial portion of its assets, or files a petition or otherwise
commences any proceeding seeking any reorganization, arrangement,
composition or readjustment under any applicable bankruptcy, insolvency,
moratorium, reorganization or other similar law affecting creditors’
rights or consents to, or acquiesces in, the filing of such a
petition;
|
|
1.1.34
|
“Subsidiary
Shares”
means, collectively, all of the shares in the capital of
(a) GeneSense and (b) NuChem transferred, directly or indirectly,
by Old
Lorus to New Lorus pursuant to a Transfer
Transaction;
|
|
1.1.35
|
“
Tax
”
means all federal, provincial, territorial, state, county, municipal,
local or foreign taxes, duties, imposts, levies, assessments, tariffs
and
other charges imposed, assessed or collected by a Governmental Authority,
including any gross income, net income, gross receipts, business,
royalty,
capital, capital gains, goods and services, value added, severance,
stamp,
franchise, occupation, premium, capital stock, sales and use, real
property, land transfer, personal property,
ad valorem
, transfer,
license, profits, windfall profits, environmental, payroll, employment,
employer health, pension plan, excise, severance, stamp, occupation,
or
premium tax, all withholdings on amounts paid to or by the Vendor,
all
employment insurance premiums, Canada, Ontario and any other pension
plan
contributions or premiums; and
|
|
1.1.36
|
“
Transfer
Transactions
” means, collectively, the transactions contemplated
by (a) the asset transfer agreement dated the date hereof between
Old
Lorus and GeneSense in connection with, among other things, certain
assets
of Old Lorus, (b) the asset transfer agreement dated the date hereof
between GeneSense and New Lorus in connection with, among other things,
certain patent assets of GeneSense, (c) the asset transfer agreement
dated
the date hereof between Old Lorus and GeneSense in connection with,
among
other things, the Virulizun patent assets and small molecule technology
of
Old Lorus, (d) the asset transfer agreement dated the date hereof
between
Old Lorus and GeneSense in connection with, among other things, the
prepaid expenses and receivables of Old Lorus, (e) the share purchase
agreement dated the date hereof between Old Lorus and New Lorus with
respect to the shares of GeneSense, and (f) the share purchase agreement
dated the date hereof between Old Lorus and New Lorus with respect
to the
shares of NuChem.
|
1.2
|
Extended
Meanings
|
1.3
|
Interpretation
|
1.4
|
Article
References
|
1.5
|
Date
for any Action
|
1.6
|
Governing
Law
|
2.1
|
Covenant
to Indemnify
|
|
2.1.1
|
each
Lorus Party has acquired the Assets in accordance with the terms
of the
Transfer Transactions, on an “as is, where is” basis and subject to any
and all liens, encumbrances, agreements, commitments, rights of others
and
Liabilities pertaining thereto howsoever and whensoever
arising;
|
|
2.1.2
|
as
of the Effective Time, the Lorus Parties will, on a joint and several
basis, assume and be liable for all Liabilities of Old Lorus for,
and
indemnify, defend and save harmless the Indemnified Parties from
and
against all Losses suffered, sustained, paid or incurred by any of
the
Indemnified Parties, howsoever or by whomsoever caused which arise
out of,
any matter or thing occurring (a) prior to, at or after the Effective
Time
and directly or indirectly
relating to any of the
Assets (including Losses for income, sales, excise and other Taxes
arising
in connection with the transfer of any Asset from Old Lorus, NuChem
or
GeneSense to any Lorus Party) or the conduct of the business of Old
Lorus
or any Lorus Party prior to the Effective Time, (b) prior to, at
or after
the Effective Time as a direct or indirect result of any and all
interests, rights, obligations, indemnities, guarantees (whether
financial
or for performance), Liabilities and agreements of any kind whatsoever
and
whether matured or not, direct or indirect, contingent or absolute,
held
or provided by,
|
|
|
or
by which, Old Lorus or any Lorus Party is or was, prior to the
Effective
Time, bound relating to the Assets, including any guarantees, sureties,
indemnities, letters of credit or any other obligations that are
created,
whether by law or contract or any other way howsoever, and whether
as a
party or as agent, guarantor, surety or indemnitor or otherwise,
provided
that the foregoing will not extend to any guarantees, sureties,
indemnities, letters of credit or other Liabilities of Old Lorus
given, or
relating to events occurring, after the Effective Time, and (c)
prior to
or at the Effective Time and directly or indirectly relating to
any of the
activities of Old Lorus, any Lorus Party, including the activities
of any
director, officer, employee or other representative of Old Lorus,
or the
Arrangement, including any payments, obligations or Liabilities
directly
or indirectly relating to any exercise of the Dissent Rights (as
defined
in the Arrangement Agreement) or similar rights in connection with
the
Arrangement, except:
|
|
(i)
|
in
respect of Tax for any taxation year in any way caused by, arising
directly or indirectly or in any manner whatsoever from any event,
or fact
occurring after the Effective Time, but for greater certainty excluding
any Taxes payable as a result of the
Arrangement;
|
|
(ii)
|
in
respect of Tax where, after the Effective Time, Old Lorus has waived
in
writing any time limitation, statutory or otherwise for any taxation
period ending prior to the Effective Time;
or
|
|
(iii)
|
in
respect of Tax where, after the Effective Time, Old Lorus requests
or
knowingly initiates a review, ruling or opinion of any matter or
takes any
other action that affects the tax position of Old Lorus for any taxation
period ending prior to the Effective
Time;
|
|
2.1.3
|
a
Lorus Party will not be entitled to exercise and each Lorus Party
hereby
waives any rights or remedies such Lorus Party may now or in the
future
have against any of the Indemnified Parties in respect of Liabilities
assumed hereunder, including the right to name any of the Indemnified
Parties as a third party to any action commenced by any third party
against such Lorus Party; and
|
|
2.1.4
|
without
limiting the generality of any agreement referred to in the definition
of
“Transfer Transactions” or any conveyance or other document entered into
in connection therewith, each Lorus Party will see to the timely
performance of all obligations relating to the Assets transferred
to such
Lorus Party which, in the absence of this Agreement, would be the
responsibility of Old Lorus. The Lorus Parties will be liable, on
a joint
and several basis, to Old Lorus for and will, in addition, indemnify
Old
Lorus from and against, all Losses suffered, sustained, paid or incurred
by Old Lorus should a Lorus Party fail in the timely performance
of such
obligations.
|
2.2
|
Costs
and Damages
|
2.3
|
Payments
under Indemnity
|
|
2.3.1
|
Subject
to the terms and conditions hereof and upon any of the Indemnified
Parties
sustaining, paying, incurring or suffering any Loss for which such
Indemnified Parties are entitled to be indemnified hereunder, each
of such
Indemnified Parties may provide a demand for payment to any or all
of
the Lorus Parties (a “
Demand
”), which Demand
will specify such Loss sustained, paid, incurred or suffered or to
be
incurred or suffered by the Indemnified Party and will be accompanied
by
copies of any relevant Judgments, documents, invoices or instruments
(along with reasonable evidence of such payment or the requirement
for
payment substantiating the amount and nature of the Loss incurred
or to be
incurred).
|
|
2.3.2
|
Subject
to the terms and conditions hereof, the Lorus Parties will make the
required payment or relieve the Indemnified Parties of the obligation
to
incur or suffer the relevant Loss within (i) 30 days after receipt of
a Demand, or (ii) within such lesser period as may be required in
connection with a Judgment.
|
2.4
|
Termination
of Power
|
|
2.4.1
|
Subject
to Section 2.4.2, an Indemnified Party may, upon written notice given
to
New Lorus, terminate the Power if (i) any Lorus Party has defaulted
in the
payment of a proper Demand on the basis contemplated in Section 2.3
without full and complete remedy of such default within 30 days of
receipt of written notice of such default, or (ii) Old Lorus shall
have
determined, in its sole discretion, that New Lorus shall not have
conducted the proceedings relating to any Claim in a competent, timely
or
professional manner.
|
|
2.4.2
|
It
will be a condition precedent to the right of the Indemnified Parties
to
elect to terminate the Power under this Section 2.4, that the
Indemnified Parties will have unequivocally undertaken in writing
to
thereafter assume and conduct proceedings relating to any Claim in
a
competent and professional manner.
|
|
|
Notwithstanding
any such termination of the Power, the Indemnity will continue
to apply,
including the obligation to indemnify for all Losses, provided
however:
|
|
(i)
|
New
Lorus will be entitled to access to all written information relating
to
any such Claim on the same basis as the right granted to the Indemnified
Parties pursuant to Section 3.7.1 and will have the right to monitor
and
be informed of (each on a without prejudice basis) all material steps
and
proceedings relating to any Claim on the same basis as the right
granted
to the Indemnified Parties pursuant to Section 3.7.2;
and
|
|
(ii)
|
the
Indemnified Parties may not, without the prior written consent of
New
Lorus, acting reasonably and without delay, settle any Claim or consent
to
entry of a Judgment with respect thereto which imposes any indemnification
obligations upon New Lorus.
|
|
2.4.3
|
In
the event that the Indemnified Parties elect to terminate the Power
other
than pursuant to the terms of this section 2.4, the Indemnified Parties
will not be entitled any longer to indemnification pursuant to the
terms
of this Agreement.
|
2.5
|
Payment
of Interest on Unpaid
Amounts
|
3.1
|
Granting
of Power
|
|
3.1.1
|
On
and subject to the terms and conditions hereof, each of the Indemnified
Parties, hereby irrevocably appoints New Lorus and New Lorus’s Nominee (if
so appointed by New Lorus), as its sole and exclusive attorney and
agent,
such parties to be entitled to act independently or jointly, for
any and
all purposes associated with all Claims with full and absolute power
(herein the “
Power
”) to negotiate, settle, compromise,
litigate or otherwise deal with the same in New Lorus’s absolute and
unfettered discretion through to a Final Determination, which Power
will,
without limiting the generality of the foregoing, include the
following:
|
|
(i)
|
the
right to retain or confirm the retention of
Counsel;
|
|
(ii)
|
subject
to section 3.3.3(i), the right to instruct Counsel from time to time
as
may be necessary or prudent;
|
|
(iii)
|
the
power to settle or compromise a Claim, but only if such settlement
or
compromise (A) includes an unconditional release of such Indemnified
Party
from all Liability on such Claim and (B) does not include a statement
as
to or an admission of fault, culpability or a failure to act by or
on
behalf of any Indemnified Party;
|
|
(iv)
|
subject
to clause (iii) of this Section 3.1.1, the power and authority to
direct
all Authorized Authority proceedings on behalf of the Indemnified
Parties
and make all decisions pertaining
thereto;
|
|
(v)
|
subject
to Section 3.4.2, the power to commence and conduct in the name of
the
Indemnified Parties any counterclaims or claim over against third
Persons
in respect of or related to any Claim and the subject matter thereof;
and
|
|
(vi)
|
to
pay on behalf of the Indemnified Parties, any amounts required to
effect
or assist in ultimately effecting a Final
Determination.
|
|
3.1.2
|
Subject
to Sections 2.4, 3.3 and 3.4, the Power will be irrevocable by the
Indemnified Parties until a Final Determination has occurred, but
may be
exercised by New Lorus or New Lorus’s Nominee through any individuals
designated by New Lorus or New Lorus’s Nominee for that purpose from time
to time, which individuals and New Lorus’s Nominee may, subject to the
provisions hereof, be changed by New Lorus or on its behalf at the
sole
discretion of New Lorus. New Lorus will, within a reasonable time,
notify
the Indemnified Parties in writing as to appointments or changes
in New
Lorus’s Nominee or the designated individuals of New Lorus or New Lorus’s
Nominees, if any, who will be authorized to exercise the Power on
behalf
of New Lorus.
|
3.2
|
Acceptance
of Appointment
|
3.3
|
Conduct
of Claims and Precondition of
Power
|
|
3.3.1
|
New
Lorus will, within 15 days of receiving a Claim Notice, or such shorter
period as may be appropriate in the circumstances to avoid any prejudice
or increased potential for Losses, in respect of any Claim, give
notice in
writing to the applicable Indemnified Party
that:
|
|
(i)
|
New
Lorus has irrevocably and unconditionally confirmed that the entirety
of
such Claim is one for which the Indemnified Party is entitled to
be fully
indemnified under the terms of this
Agreement;
|
|
(ii)
|
New
Lorus is unable, without further inquiry, to determine whether such
Claim
is one for which the Indemnified Party is entitled to be indemnified,
in
whole or in part, under the terms of this
Agreement;
|
|
(iii)
|
the
Claim is one for which the Indemnified Party is not entitled to
indemnification under the terms of this Agreement;
or
|
|
(iv)
|
the
Claim is one for which the Indemnified Party is only entitled to
indemnification, in part, under the terms of this
Agreement.
|
|
3.3.2
|
It
will be a precondition to the continuance and exercise of the Power,
or
any part thereof, in respect of any Claim, that (i) New Lorus will
have
irrevocably and unconditionally confirmed, within such 15 day period,
that
the entirety of such Claim is one for which the Indemnified Party
is
entitled to be fully indemnified under the terms of this Agreement,
and
(ii) a Solvency Event shall not have
occurred.
|
|
3.3.3
|
In
the event that New Lorus gives notice under Section 3.3.1(ii), until
such
time that New Lorus is able to determine whether or not the entirety
of
the Claim is one for which the Indemnified Party is entitled to be
fully
indemnified under the terms of this Agreement, the Indemnified Party
will
be possessed of the power to negotiate, settle, compromise, litigate
or
otherwise deal with such Claim, provided however
that:
|
|
(i)
|
the
Indemnified Party and New Lorus will mutually agree in writing upon
the
retention of Counsel, unless the Indemnified Party has received an
opinion
of counsel to the effect that the interests of the Indemnified Party
and
New Lorus with respect to such Claim are sufficiently adverse to
prohibit
the representation by the same counsel of both parties under applicable
ethical rules, in which event the Indemnified Party will have the
unilateral right to employ separate Counsel and the fees and expenses
of
such Counsel will be included as part of any Losses incurred, sustained
and suffered by such Indemnified
Party;
|
|
(ii)
|
the
Indemnified Party will not, without New Lorus’s prior written consent
(such consent not to be unreasonably withheld or delayed), settle,
compromise, consent to the entry of any Judgment in or otherwise
seek to
terminate such Claim;
|
|
(iii)
|
the
Indemnified Party will provide, on a timely basis, New Lorus with
(A)
access to all information relating to such Claim and the status thereof;
and (B) copies of reports and other correspondence it receives
|
|
|
from
Counsel on the status of such Claim and the results of any settlement
discussions that have occurred or are
scheduled;
|
|
(iv)
|
the
Indemnified Party will consult with New Lorus on strategic decisions
relating to such Claim; and
|
|
(v)
|
should
it wish to do so, New Lorus will be entitled to monitor at its own
expense
the conduct of such Claim with a view to being informed as to all
material
aspects thereof, including the Indemnified Party’s strategy and its
estimates of liability exposure and relevant
timing.
|
|
3.3.4
|
In
the event that New Lorus gives notice, at any time, that a Claim
is one
for which an Indemnified Party is not entitled to indemnification
under
this Agreement, the Indemnified Party will, without prejudice to
any other
rights or remedies of the Indemnified Party in respect of such Claim
or in
respect of a Lorus Party hereunder, have full and absolute power
to
negotiate, settle, compromise, litigate or otherwise deal with the
Claim
in the Indemnified Party’s absolute and unfettered discretion through to a
Final Determination, which powers will include those powers enumerated
in
Section 3.1.1.
|
|
3.3.5
|
In
the event that New Lorus gives notice, at any time, that a Claim
is one
for which an Indemnified Party is entitled, under the terms of this
Agreement, to indemnification, in part, and the Indemnified Party
agrees
that it is only entitled to indemnification in part, the Parties
hereby
agree to use commercially reasonable efforts to, depending upon the
nature
of the Claim, either (i) conduct a joint defence in respect of the
Claim,
or (ii) bifurcate the Claim, in which event New Lorus would exercise
the
Power only in respect of that part of the Claim that is subject to
indemnification.
|
3.4
|
Limitation
on Power
|
|
3.4.1
|
obligate
an Indemnified Party to incur, pay, suffer or sustain any Losses
which it
would not be entitled to recover from New Lorus pursuant to Section
2.1
and only if such amounts would be recoverable in full by the Indemnified
Party from New Lorus, or if such obligation does or may reasonably
be
expected to exceed such amounts, New Lorus will have provided to
the
Indemnified Party reasonable assurances as to payment of such excess
|
|
|
amounts
by documentation in form and substance satisfactory to the Indemnified
Party, acting reasonably, and will have received prior written
consent of
the Indemnified Party, such consent not to be unreasonably withheld
or
delayed, prior to exercising the Power;
or
|
|
3.4.2
|
entitle
or permit New Lorus to commence or conduct in the name of Indemnified
Parties any counter claims or claims pursuant to Section 3.1.1(v),
unless
such claims relate specifically to the subject matter of the Claim,
without the prior written consent of the Indemnified Parties, such
consent
not to be unreasonably withheld or
delayed.
|
3.5
|
Contract
Directly
|
3.6
|
Diligence
|
3.7
|
Access
to Information and Participation by the Indemnified
Parties
|
|
3.7.1
|
The
Indemnified Parties will be entitled to access to all material or
relevant
written information relating to any Claim and the status thereof.
New
Lorus agrees to provide, on a timely basis, the Indemnified Parties,
with
copies of reports it receives from Counsel or New Lorus’s Nominee on the
status of any Claim and the results of, or strategy relating to any
Claim
or any settlement discussions that have occurred or are scheduled.
Notwithstanding the foregoing, if the Indemnified Parties breach,
in any
material respect, the provisions of Section 7, then, without limiting
any other rights or remedies New Lorus may have against the Indemnified
Parties or other Persons breaching such obligations, the rights provided
for in this Section 3.7.1 will be
suspended.
|
|
3.7.2
|
Should
it wish to do so, an Indemnified Party will, in addition to Section
3.7.1,
be entitled to monitor at its own expense the conduct of any Claim
with a
view to being informed as to all material aspects thereof, including
New
Lorus’s strategy and its estimates of New Lorus’s exposure and relevant
timing.
|
|
3.7.3
|
New
Lorus will forthwith notify the Indemnified Party upon becoming aware
of
any Losses which are embodied in or arise as a result of or pursuant
to
any Judgment or Settlement
Agreement.
|
4.1
|
Specific
Obligations
|
|
4.1.1
|
promptly
provide New Lorus with written notice of any outstanding, pending
or
threatened Claim which the Indemnified Parties become aware of (a
“
Claim Notice
”); provided that the failure to promptly
provide such notice will not relieve New Lorus or any obligation
to
indemnify such Indemnified Party, except to the extent such failure
prejudices New Lorus;
|
|
4.1.2
|
in
relation to any identified Claim for which New Lorus is exercising
the
Power pursuant to Section 3.1 and in accordance with the terms of
this
Agreement, take such commercially reasonable action as New Lorus
may
request and take no action that has the effect of prejudicing such
Claim
or New Lorus’s ability to defend such Claim, except where such Indemnified
Party is permitted by the terms hereof to act in a contrary
manner;
|
|
4.1.3
|
comply
in all material respects with the provisions of this Agreement and
with
the reasonable written instructions given by New Lorus, its Nominee,
or
Counsel in relation to any of the Powers granted to New Lorus pursuant
to
Section 3.1. Such written requests will be given to the Indemnified
Parties detailing the requested action. The Indemnified Parties will
in
all cases be afforded a reasonable period in which to comply with
the
request having due regard to the terms here of and to applicable
prescription periods or offers which expire within a specified time
in
respect of which New Lorus has provided the Indemnified Parties with
as
much notice as is reasonably practicable in the circumstances;
and
|
|
4.1.4
|
provide
to New Lorus and its authorized representatives access at all reasonable
times to, and the right to photocopy, the files and records of the
Indemnified Parties pertaining or relating to any Claims, or the
subject
matter thereof.
|
5.1
|
Cooperation
|
|
5.1.1
|
Subject
to Section 3.4.1 and Section 3.1.1(iii), in connection with the
negotiation of any Settlement Agreement and any documents contemplated
|
|
|
thereunder,
the Indemnified Parties will cooperate on a commercially reasonable
basis
with New Lorus and execute and deliver the same in accordance with
the
reasonable requests and requirements of New Lorus with respect
thereto;
provided that, if, in the sole discretion of an Indemnified Party,
a
Settlement Agreement obligates such Indemnified Party to incur
any Losses
for which they are not indemnified, such Indemnified Party will
not be
required to sign the Settlement Agreement and will not, on that
basis, be
in breach of their obligations under this Section
5.1.
|
|
5.1.2
|
The
obligations of the Indemnified Parties under Section 5.1.1 will be
applicable only when New Lorus is exercising the Power in accordance
with
Section 3.1.
|
6.1
|
Representations
and Warranties
|
|
6.1.1
|
it
is duly incorporated and validly subsisting under the laws of its
incorporating jurisdiction and has the corporate power and authority
and
the legal right to enter into this Agreement and fully complete and
perform its obligations hereunder;
|
|
6.1.2
|
this
Agreement has been duly and properly executed and delivered by it
and
constitutes legal, valid and binding obligations of it enforceable
against
it in accordance with its terms;
and
|
|
6.1.3
|
it
has the requisite power, capacity and authority to enter into this
Agreement.
|
7.1
|
Confidentiality
Obligations
|
|
7.1.1
|
the
disclosure of the Confidential Information is required by applicable
law;
|
|
7.1.2
|
the
Confidential information is or becomes publicly available other than
through a breach of the provisions hereof by any Person to whom disclosure
is made in accordance herewith; or
|
|
7.1.3
|
the
written consent of the Parties is given prior to any such use or
disclosure being made.
|
8.1
|
Breach
by Indemnified Party
|
8.2
|
Notices
|
|
8.2.1
|
If
to Old Lorus prior to the Effective
Time:
|
|
8.2.2
|
If
to Old Lorus after the Effective
Time
|
|
8.2.3
|
If
to New Lorus:
|
|
2
Meridian Road
|
|
Toronto,
ON M9W 4Z7
|
8.3
|
Time
of Essence
|
8.4
|
Entire
Agreement
|
8.5
|
Assignment
|
8.6
|
Binding
Effect
|
8.7
|
Further
Assurances
|
8.8
|
Severability
|
8.9
|
Counterpart
Execution
|
4325231
CANADA INC.
|
|||
by:
|
“Aiping
Young”
|
||
Name: | |||
Title: | |||
LORUS
THERAPEUTICS INC.
|
|||
by:
|
“Aiping
Young”
|
||
Name: | |||
Title: | |||
NUCHEM
PHARMACEUTICALS INC.
|
|||
by:
|
“Aiping
Young”
|
||
Name: | |||
Title: | |||
GENESENSE
TECHNOLOGIES INC.
|
|||
by:
|
“Aiping
Young”
|
||
Name: | |||
Title: | |||