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EXHIBIT 10.35
THIS DEED is made the 12th day of September 2001.
BETWEEN
TIBOTEC-VIRCO N.V. whose registered address is at Intercity Business Park, Gen.
De Wittelen L11B , 2800 Mechelen, Belgium (hereinafter referred to as "TVNV");
and
VIRCO UK LIMITED (No. 03348588) whose registered address is at Cartwright and
Company, 106 High Street, Stevenege, Hertfordshire SGI 3DW England (hereinafter
referred to as Virco); and
VISIBLE GENETICS UK LTD (No. 04076100) whose registered address is at 20-22
Bedford Row, London, WCIR 4JS (hereinafter referred to as "VG UK"); and
VISIBLE GENETICS INC., whose registered address is at 700 Bay Street, Suite 1000
Toronto Canada M5G 1Z6 (hereinafter referred to as "VGI")
WHEREAS
A. Virco wishes to sell certain Assets set out in Schedule A and VG UK wishes
to acquire the said Assets from Virco. Virco shall retain certain other
assets ("Excluded Assets") set out in Schedule B.
B. VG UK wishes to acquire certain Expensed Items as set out in Schedule C and
Virco wishes to sell such Expensed Items to VG UK.
C. VG UK wishes to assume certain specific liabilities of Virco in relation to
the Lease limited to those that relate to the period following the
assignment of the Lease and that Virco will indemnify VG UK in respect of
the liabilities to be acquired by VG UK that relate to the period prior to
the assignment of the Lease.
D. The Parties intend that the employees of Virco shall transfer to VG UK on
the Completion Date in accordance with the Transfer of Undertakings for the
Protection of Employment Regulations 1981 (as amended) (the TUPE
Regulations), and subject to the terms and conditions set out in this deed,
and that Virco may from time to time call upon the services of such
employees to assist it in audit or regulatory matters.
E. The Parties accept that the transaction described herein represents
transfer of employees and assets between the companies who are in
competition with each other in the same market and that the employees will
be involved in research and development of products that may compete with
Virco's and TVNV's current or future product portfolio.
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IT IS AGREED AS FOLLOWS: -
1. DEFINITIONS
1.1 In this deed including the Schedules, the following words and
expressions have the following meanings:
"Assets" means the assets set out in Schedule
A.
"Completion Date" means the date on which Virco
shall sell certain assets, grant a
license to occupy to VG UK, and the
employees of Virco shall transfer to
VG UK.
"Excluded Assets" means the assets set out in Schedule
B which shall remain the property of
Virco and may be dealt with in any
manner Virco sees fit upon the
proviso that the Excluded Assets are
removed from the Lease Premises
prior to the Completion Date.
"Expensed Items" means the items which have been
expensed during the current fiscal
year as set out in Schedule C.
"Landlord" means the Master Fellows and
Scholars of the Holy and Undivided
Trinity within the Town and
University of Cambridge of King
Henry the Eighth's Foundation,
landlord under the Lease.
"Lease" means the lease dated 19th January
1999 by the Master Fellows and
Scholars of the Holy and Undivided
Trinity within the Town and
University of Cambridge of King
Henry the Eighth's Foundation to
Virco, as lessee, and TVNV, as
surety, of Trinity College Cambridge
of Unit 184, Phase 3 Cambridge
Science Park, Milton Road, Cambridge
England CB4 0GA with associated
rights and obligations, including
but not limited to the bank
guarantee to Trinity College.
"Premises" has the meaning attributed to that
term under the Lease.
1.2 The clause and paragraph headings are for ease of reference
only and are not to be taken into account in the
interpretation of the provisions to which they refer.
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1.3 Unless the context otherwise requires, references:
1.3.1 to numbered clauses and Schedules are references to
the relevant clause in, or Schedule to, this deed;
and
1.3.2 to a numbered paragraph in a Schedule are references
to the relevant paragraph in that Schedule.
1.4 Words denoting the singular include the plural meaning and
vice versa.
1.5 Words importing one gender include both genders.
2. DEED FOR SALE AND PURCHASE, LICENSE TO OCCUPY AND FOR ASSIGNMENT OF LEASE
2.1 Subject to the terms and conditions of this deed Virco shall:-
2.1.1 on the Completion Date sell to VG UK with full title
guarantee and VG UK shall purchase the Assets and
Expensed Items owned by Virco as set out in Schedules
A and C hereto; but excluding the Excluded Assets.
2.1.2 on or after the 5th October 2001 with full title
guarantee assign, and VG UK shall assume obligations
under, the Lease, including any goodwill attaching to
the Premises from Virco's business to VG UK, as of
the date of assignment, to hold the Premises to VG UK
for all the residue now unexpired of the term of
years granted by the Lease subject to payment of the
rent reserved by and the performance and observance
of the covenants on the part of the lessee and the
conditions contained in the Lease.
2.1.3 Upon the Completion Date grant a license to VG UK to
occupy the Premises upon the terms set out in
sub-clauses 2.4 to 2.7.
2.2 VG UK liability for the assignment of the Lease shall commence
upon the date of assignment, and Virco and TVNV shall
otherwise indemnify VG UK in respect of any liabilities
acquired under the Lease to the extent that they relate to the
period prior to date of assignment. Copies of the Lease have
been supplied to VG UK, which shall be deemed to purchase with
full knowledge of its contents and shall raise no requisition,
enquiry or objection in relation to it.
2.3 VG UK agrees to pay to Virco any and all advance payments made
by Virco in relation to the Lease which apply to the period
after the date of assignment in cases where such payments are
repaid by the Landlord to VG UK. VG UK hereby agrees that such
monies shall be payable on demand.
2.4 VG UK shall be entitled to occupy the Premises at its entire
risk from the date hereof until the date of completion of the
assignment of the Premises between
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Virco and VG UK ("the Assignment") (or earlier as provided
herein) but as licensee only and subject to VG UK being liable
to pay all outgoings in respect of the Premises from the date
hereof and subject to VG UK paying the license fee referred to
in clause 3.1.3 below.
2.5 VG UK shall be bound by the same exceptions and reservations
and shall observe and perform the covenants and obligations
contained in the Lease as if the Assignment had been completed
and shall indemnify Virco against any expense cost loss or
liability incurred or suffered by Virco due to any failure by
VG UK to observe and perform the obligations on the part of
the tenant contained in this clause 2 or as a result of VG UK
ceasing to exist or being subject to an insolvency or similar
event.
2.6 If this deed becomes null and void (or if Virco's landlord for
the time being under the Lease fails to grant consent to the
Assignment in the form of a deed by 31 December 2001) VG UK
shall cease to occupy the Premises and shall remove from the
Premises VG UK's chattels and shall leave the Premises in good
repair and condition making good any damage caused to the
Premises in the removal of the chattels and any damage caused
thereto during the subsistence of the License to occupy as a
result of VG UK's acts or omissions.
2.7 The parties agree to use their best endeavours to ensure that
the License to Assign is duly executed and delivered by the
Landlord on or about October 5, 2001. Upon reasonable written
request by VGI after October 5, 2001, Virco shall make
application to a court with jurisdiction for a declaration
that the Landlord is unreasonably delaying or withholding
consent to assignment of Lease. All reasonable costs
associated with such application shall be borne equally by VG
UK and Virco.
3. PURCHASE CONSIDERATION
3.1 The consideration for the sale of the Assets and Expensed
Items, the license to occupy and the assignment of the Lease
shall be the following: -
3.1.1 in relation to the Assets set out in Schedule A -
their net book value from the fixed asset register of
Virco as at 31 August 2001 stg (pound)553,117.38;
3.1.2 all items not classified as Assets or Excluded
Assets, as per Schedules A and B, shall be acquired
by VG UK for a total consideration of stg
(pound)15,487.50. This includes but is not limited To
all Expensed Items listed in Schedule C.
3.1.3 VG UK shall pay to Virco (or to Virco's landlord as
Virco shall direct) a sum equal to the rent reserved
from time to time under the Lease and all outgoings
in respect of the Premises by way of license fee
which shall be payable at the times and in the manner
specified in the Lease
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3.1.4 in relation to the assignment of the Lease (pound)1
and a covenant on the part of VG UK, upon the
CompletIon Date to pay the rent reserved by the Lease
and to observe and perform the covenants on the part
of the lessee and the conditions contained in the
Lease.
3.2 The consideration shall be paid in sterling cash by VG UK to
Virco upon the Completion Date of the purchase in accordance
with Clause 4 below.
3.3 The consideration set out above is exclusive of any applicable
value added tax, which VG UK may be additionally liable to pay
Virco.
3.4 Nothing in this deed shall pass to VG UK, or shall be
construed as acceptance by VG UK of any liability, debt or
other obligation of Virco, other than as expressly set out in
this deed.
4. THE COMPLETION DATE
4.1 The parties hereby agree to use their best endeavours to
ensure that the Completion Date will occur by the 12th
September 2001.
4.2 Upon the Completion Date, Virco shall deliver or procure
delivery to VG UK of:
a. Physical possession of all the Assets and Expensed
Items capable of passing by delivery with the intent
that title in such Assets and Expensed Items shall
pass by and upon such delivery;
b. Duly executed assignment of the Lease and other
documents in the agreed form necessary to assign the
Lease to VG UK;
c. All personnel files for the Transferred Employees,
including all National Insurance PAYE records fully
completed in respect of the Transferred Employees
showing that all payments are up to date, and all
records required to be kept under the Working Time
Regulations 1998; and
d. Vacant possession of the Premises.
4.3 Against compliance by Virco and TVNV of their obligations
hereunder, upon the Completion Date, VG UK shall pay to Virco
in respect of the purchase consideration set out in Clause 3
above and except as described herein, Virco shall have no
further obligations in relation to the Assets, and Expensed
Items and Lease. Such payment shall be made by wire transfer
to the account of Virco UK Ltd, Account No. 50706965, Sort
Code 20-17-35, at Barclays Bank PLC, Chesterton Road,
Cambridge England.
5. EMPLOYEES
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5.1 The parties acknowledge and agree that the sale and purchase
pursuant to this deed will constitute a relevant transfer of
the employees listed on Schedule E (the "Transferred
Employees") for the purposes of the TUPE Regulations and that
it will not operate so as to terminate any of the contracts of
employment of the Transferred Employees and such contracts
shall be transferred to VG UK pursuant to the TUPE Regulations
with effect from the Completion Date and that from the
Completion Date Virco will no longer have any liability with
respect to the Transferred Employees, except as provided in
Clause 5.2 and 5.3.
5.2 Virco and TVNV agree to fully to indemnify and keep
indemnified VG UK against all losses, damages, costs, actions,
awards, penalties, fines, proceedings, claims, demands,
liabilities (including without limitation any liability to
tax), and expenses (including without limitation, legal and
other professional fees and expenses) which VG UK may suffer,
sustain, incur, pay or be put to by reason or on account of or
arising from:
(1) any claim or other legal recourse by all or any of
the Transferred Employees in respect of any fact or
matter concerning or arising from employment with
Virco prior to the Completion Date:
(2) termination of any agents or contractors contract
with Virco
(3) any act or omission done or omitted to be done by
Virco in relation to the Transferred Employees or any
other employee of Virco which by virtue of the TUPE
Regulations is deemed to be an act or omission of VG
UK;
(4) without prejudice to sub-Clause (3) above, any claim
or demand or other legal recourse against VG UK by
any other person or agent or employee or contractor
of Virco who claims (whether correctly or not) that
VG UK has inherited liability from Virco in respect
of them by this deed; and
(5) the employment or termination of employment of any
employee of Virco (other than the Transferred
Employees) whose employment is transferred to VG UK
by the TUPE Regulations.
5.3 The parties agree that Brendan Larder and Sharon Kemp are
Transferred Employees for all purposes of this deed. Virco
agrees to waive the obligations of Brendan Larder and Sharon
Kemp under sub-clause 2.2 (the six-month notice period),
sub-clause 10.4, and the entirety of clause 12
(post-termination obligations) of the employment contracts
between Virco and each of Sharon Kemp and Brendan Larder.
5.4 The Parties acknowledge that the Transferred Employees shall
be free of all restrictions to work for VG UK subject to the
following:
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5.4.1 VG UK agrees that the obligations of each of the
Transferred Employees towards Virco with respect to
Virco's confidential information shall remain valid
and in force for a period that is the lesser of five
years or as described in their original contract, and
that each such employee shall be prohibited in using
Virco's confidential information and confidential
materials for such period. The parties agree that the
provisions set out in clause 9 and subclauses 10.1,
10.2 and 10.3 of each of Brendan Larder's and Sharon
Kemp's Employment Contract and the provisions of
paragraphs 12, 13, 14 and 16 in the Virco Terms and
Conditions of Service of all other Transferred
Employees, which are reproduced in Schedule D,
continue to apply to each Transferred Employee for a
period of no greater than five years.
5.4.2 prior to the execution of this deed Brendan Larder
and Sharon Kemp shall execute a Letter attached as
Schedule F and each Transferred Employee shall
execute a Letter of Assurance confirming that they
will continue to abide by the terms of their contract
of employment with Virco UK Limited with respect to
Virco's confidential information and confidential
material, that these terms will survive the transfer
of their contract of employment to VG UK and that
they will not use the confidential materials for the
benefit of VG UK or its holding company.
For the avoidance of doubt the parties hereby agree that
notwithstanding anything to the contrary in their employment
contract with Virco the skills, knowledge and work experience
acquired by the Transferred Employees during their period of
employment with Virco shall not fall under the scope of this
clause 5.
5.4.3 prior to execution of this deed, VG UK shall provide
a Letter of Assurance that it has not received and
does not have in its possession any:
i. reagents, biologicals (including but not
limited to all human tissue and blood
samples), biochemicals, laboratory notebooks
and electronic information; and
ii. hard copy or electronic format of
experimental and production protocols, R & D
project descriptions, software development
projects including neural network
development, algorithms on mutational
patterns of HIV, HCV, HBV and other reports
belonging to Virco. Such Letter of Assurance
is attached as Schedule G.
5.4.4 from the Completion Date, Virco shall have, subject
to Clause 5.2 and all reasonable legal and regulatory
requirements, no further obligations to the
Transferred Employees.
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5.4.5 VG UK hereby agrees that Virco may from time to time
call upon the services of Morgan Hart and Gemma Young
to assist it in audit or regulatory matters. Such
assistance shall be limited in the case of Morgan
Hart to a maximum period of twelve days, which need
not be consecutive, commencing on the Completion Date
and ending on March 30, 2002. Such assistance shall
be limited in the case of Gemma Young to a maximum
period of three days, which need not be consecutive,
commencing at the Completion Date, and ending three
(3) months after the Completion Date. All costs and
expenses incurred by the employees, as a result of
such assistance given to Virco pursuant to the terms
of this Clause 5.5.5 shall be borne by Virco. For the
avoidance of doubt Virco shall pay Morgan Hart's
salary for the time period which he assists Virco.
For the avoidance of doubt VG UK further agrees that
Brendan Larder may present Virco data at the ICAAC
conference in September 2001.
5.5 All salaries, business expenses, contractual bonuses and other
emoluments, including holiday pay, tax and national insurance
payments and contribution to retirement benefit schemes
relating to the Transferred Employees shall be borne by Virco
up to the Completion Date and all necessary apportionments
shall be made.
6. SALE OF THE PARTIES HIV GENOTYPING ASSAY
In consideration of the mutual covenants and promises set out in this deed the
parties hereby agree as follows:
6.1 VG UK will not offer clinical service laboratory activities in
Europe using the Virco HIV genotyping assay for a period of
three (3) years from the date of this deed.
6.2 VG UK may offer clinical service laboratory activities based
on its HIV genotyping assay as currently available or future
developments on it.
7. REPRESENTATIONS, WARRANTIES AND LIABILITIES
7.1 All information contained in this deed and all other
information relating to the Assets, Expensed Items, license to
occupy, Lease or Transferred Employees given by Virco or its
representatives to VG UK or its representatives are true,
accurate and complete in every respect and there is no fact or
matter relating to the Assets, Expensed Items, license to
occupy, Lease or Transferred Employees which is known or ought
on reasonable enquiry to be known to Virco which has not been
disclosed or which renders any such matters or information
untrue, incomplete or
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misleading or the disclosure of which is material to be known
by a purchaser of the Assets, Expensed Items, Lease or
Transferred Employees.
7.2 The Parties to this deed have full power and authority and
have taken all necessary corporate action to enable each
effectively to enter into and perform this deed and all deeds
entered into, or to be entered into, pursuant to the terms of
this deed, and such deeds when executed, will constitute
valid, binding and enforceable obligations on each in
accordance with their respective terms and, save with respect
to the consent of the Landlord in connection with the license
to occupy and the assignment of the Lease, each does not
require the consent, approval or authority of any other person
to enter into or perform its obligations under this deed and
each party's entry into and performance of this deed will not
constitute any breach of or default under any obligation
binding upon it, and it is not engaged in or threatened under
any litigation or arbitration proceedings which might have an
effect upon its capacity or ability to perform its obligations
under this deed.
7.3 TITLE TO THE ASSETS AND EXPENSED ITEMS
7.3.1 Virco warrants the condition of the Assets and
Expensed Items on an "as is where is" basis and,
except as provided herein, does not warrant as to the
condition, fitness for purpose or any other warranty
implied under the Sale of Goods Act 1979 or the Sale
and Supply of Goods Act 1994 in respect of the Assets
or Expensed Items.
7.3.2 Virco has or will have at Completion Date good and
marketable title to and has in its possession and
under its control, all of the Assets and Expensed
Items which are sold free from any charge, lien,
encumbrance, equity, deed of hire or hire purchase or
for payment on deferred terms, bill of sale or any
obligation to pay any outstanding sums in respect of
them and no person other than Virco has or claims any
rights in relation to the Assets or Expensed Items or
any of them and the Assets or Expensed Items are not
subject to or potentially subject to any floating
charge or guarantee given by Virco or by any person
or company connected with Virco.
7.3.3 All documents which in any way affect the right,
title or interest of Virco in or to any of the Assets
and which attract stamp duty have been duly stamped
within the requisite period for stamping.
7.4 TRANSFERRED EMPLOYEES
7.4.1 No person is employed or engaged by Virco at the
Premises (whether under a contract of service or
contract for services) other than the Transferred
Employees and the Transferred Employees are all
employed directly by Virco.
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7.4.2 Virco has disclosed copies of all service contracts
and contracts for services and full particulars of
the current terms of employment or engagement of all
Transferred Employees and all of such particulars are
true and accurate and complete in all respects.
7.4.3 In respect of each of the Transferred Employees,
Virco has performed all obligations and duties
required to be performed by it (and has settled all
outstanding claims and debts), whether arising under
contract, statute, at common law or in equity;
7.4.4 Except as described in this deed with respect to the
Schedule D employees, Virco has not offered any
contract of employment or contract for services to
any person (except to any of the Transferred
Employees).
7.4.5 Virco has not offered or agreed for any future
variation in any contract of employment in respect of
the Transferred Employees or any other person
employed by Virco in respect of whom liability is
deemed by the TUPE Regulations to pass to VG UK.
7.4.6 Virco has paid, or will make timely payment, to the
Inland Revenue and any other appropriate authority
all taxes, National Insurance contributions and other
levies due in respect of the Transferred Employees in
respect of their employment by Virco up to the
Completion Date.
7.4.7 There are no enquiries or investigations existing,
pending or threatened into Virco by the Equal
Opportunities Commission or the Commission for Racial
Equality or other similar authorities.
7.4.8 With the exception of Brendan Larder no Transferred
Employee has given or received notice terminating his
employment or engagement in connection with Virco.
There is no person previously employed by Virco who
now has or may in the future have a right to return
to work (whether for reasons connected with maternity
leave or absence by reason of illness or incapacity
or otherwise) or a right to be reinstated or
re-engaged by Virco or to any other compensation.
7.4.9 There are not in existence and Virco has not proposed
or is not proposing to introduce any bonus, profit
sharing scheme, share option scheme, share incentive
scheme or any other scheme or arrangement under which
the Transferred Employees or any of them are or is or
would be entitled to participate in the profits of
the Assets, Expensed Items, Lease or Employees.
7.4.10 There are no amounts outstanding or promised to any
of the Transferred Employees and no liability has
been incurred by Virco which remains undischarged for
breach of any contract of service or
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for services or for redundancy payments (including
protective awards) or for compensation under any
employment legislation or regulations or for wrongful
dismissal, unfair dismissal, equal pay, sex, race or
disability discrimination or otherwise and no order
has been made at any time for the reinstatement or
re-engagement of any of the Employees or any person
formerly employed or engaged.
7.4.11 Virco has complied with the Working Time Regulations
1998 in respect of the Transferred Employees and any
other person who provides services whom Virco has
regarded as its employee under such Regulations.
7.4.12 Virco is not engaged or involved in any dispute,
claim or legal proceedings (whether arising under
contract, common law, statute or in equity) with any
of the Transferred Employees nor with any other
person employed by Virco in respect of whom liability
is deemed to pass to VG UK by virtue of the TUPE
Regulations, and so far as Virco is aware there is no
likelihood of any such dispute, claim or proceedings
arising at any time.
7.4.13 There are no acts or omissions by Virco in relation
to any of the Transferred Employees, which could give
rise to a successful claim against Virco or VG UK.
7.4.14 Virco has not recognised any trade union, works/staff
councils or association of trade unions or any other
organisation of employees in respect of the
Transferred Employees or any of them. There is no
collective deed or other deed or arrangement (whether
in writing, or by custom and practice) with any trade
union, staff association, staff works council or
other organisation of employees in relation to Virco
and Virco is not involved or likely to be involved in
any industrial or trade dispute or negotiation with
any trade union or other employee organisation.
7.5 Neither Virco nor any person for whose acts or omissions it
may be vicariously liable is engaged in or subject to any
civil, criminal or arbitration proceedings in relation to the
Assets, Expensed Items, license to occupy, Lease or
Transferred Employees or any of them and there are no such
proceedings pending or threatened by or against Virco or
against any such person and there are no facts or
circumstances likely to give rise to any such proceedings and
there are no judgements outstanding against Virco which affect
or might affect any of the Assets, Expensed Items, license to
occupy, Lease or Transferred Employees.
7.6 Virco warrants that at the Completion Date it has removed its
confidential and proprietary information, its Excluded Assets,
and those Schedule A assets which are denoted as remaining
with Virco, from the Premises.
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7.7 Virco warrants that to the best of its knowledge at date of
assignment there are no encumbrances nor knows of any
impediments which may effect the validity of the Lease or the
assignment of the same nor of any amendment to the Lease. For
the avoidance of doubt Virco and TVNV represents and warrants
that to the best of their knowledge, there is no legal
impediment to the Landlord granting the License to Assign the
Lease Premises on the date of Assignment.
7.8 Except in respect of death or personal injury caused by
Virco's negligence, neither TVNV nor Virco shall be liable to
VG UK by reason of any representation (unless fraudulent or
negligent) or any implied warranties, condition or other term,
or any duty at common law, for any direct, special or
consequential loss or damage (whether loss of profit or
otherwise) costs, expenses or other claims for compensation
whatsoever (whether caused by the negligence of Virco, its
employees or agents or otherwise), arising out of the sale or
their use or resale by VG UK and the entire liability of Virco
under or in connection with the sale of the Assets and
Expensed Items shall not exceed the price of the said Assets
and Expensed Items, paid by VG UK to Virco.
7.9 VG UK shall indemnify Virco against all claims, demands,
proceedings damages, costs and expenses raising out of or
incidental to its breach, non-observance or non-performance of
the covenants and conditions contained in the license to
occupy.
7.10 VG UK shall indemnify Virco against all claims, demands,
proceedings damages, costs and expenses raising out of or
incidental to its breach, non-observance or non-performance of
the covenants and conditions contained in the Lease after the
Completion Date and Virco shall indemnify VG UK against all
claims, demands, proceedings damages, costs and expenses
raising out of or incidental to its breach, non-observance or
non performance of the covenants and conditions contained in
the Lease to the extent that they relate to the period prior
to the date of assignment if:
8. RESCISSION
Without prejudice to its other rights and remedies either party may
rescind this deed forthwith by notice in writing to the other prior to
the Completion Date if:
8.1.1 any or all of the applicable regulatory and parent
shareholder/director approvals are not received; or
8.1.2 there is any material misrepresentation of a material fact or
fraud in entering into this deed; or
8.1.3 there is any material change in the ownership or control of
either party which is unacceptable to the other for any
reason; or
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8.1.4 one of the parties makes any voluntary arrangement with its
creditors or becomes subject to an administration order; or
8.1.5 one of the parties becomes insolvent or compounds with its
creditors or convenes a meeting to consider a resolution that
it be placed in liquidation (other than a solvent liquidation
for the purposes of amalgamation or reconstruction) or suffers
a petition to be presented that it be placed in liquidation or
has an administrative receiver, receiver or manager appointed
in respect of all or any of its assets or is adjudication
bankrupt, makes an assignment for the benefit of, or any
composition with, its creditors or takes advantage of any
insolvency act (or in each case the equivalent in any
jurisdiction); or
8.1.6 one of the parties commits any remediable breach of any of the
terms or conditions of this deed including a failure to pay
pursuant to Clause 3 and fails to remedy the breach within 21
(twenty one) days; or
8.1.7 the Lease is not assigned.
9. PARENTAL GUARANTEES
9.1 VGI hereby irrevocably and unconditionally guarantees to Virco
the due and punctual performance of each obligation of VG UK
to pay monies under this deed and also guarantees VG UK
performance of all other obligations hereunder and VGI hereby
agrees that if VG UK shall make any default in observing and
performing the said obligations in every such case VGI will
pay and make good to TVNV on demand all loses, damages and
expenses sustained by Virco in respect of all such matters VGI
shall not be discharged from or released from its obligations
under this clause 9.1 by any arrangement made between VG UK
and VGI and/or any third party.
9.2 TVNV hereby irrevocably and unconditionally guarantees to VG
UK the due and punctual performance of each obligation of
Virco to pay monies under this deed and also guarantees Virco
performance of all other obligations hereunder and TVNV hereby
agrees that if Virco shall make any default in observing and
performing the said obligations in every such case TVNV will
pay and make good to VG UK on demand all loses, damages and
expenses sustained by VG UK in respect of all such matters
Virco shall not be discharged from or released from its
obligations under this clause 9.2 by any arrangement made
between TVNV and Virco and/or any third party.
10. ANNOUNCEMENTS
No announcement of any kind shall be made in respect of the subject matter
of this deed except as specifically agreed between Virco and VG UK. Any
announcement by either party shall in any event be issued only after prior
consultation with the other
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and the parties shall make best efforts to agree upon the text of the
announcement within five (5) working days of the request. The provisions of
this clause 10 shall not apply to disclosures or announcements that are
made pursuant to law or regulation.
11. COSTS
All expenses incurred by or on behalf of the parties, including all fees of
agents, solicitors, accountants, employed by either of the parties in
connection with the negotiation, preparation and execution of this deed
shall be borne solely by the party which incurred them.
12. NOTICES
Any notice or other communication given pursuant to or made under or in
connection with the matters contemplated by this deed shall be in writing
and shall be delivered by courier, sent by registered post or sent by
facsimile to the address or facsimile number of the recipient set out below
or as specified by the recipient from time to time. Notices sent by e-mail
or facsimile shall not be valid to themselves and must be confirmed in hard
copy form by courier or by registered post.
Notices to Virco or to TVNV to:
C/O Tibotec-Virco N.V
Intercity Business Park,
Gen. De Wittelan L11B 4,
2800 Mechelen,
Belgium Attention: Paul Stoffels
Notices to VGI or VG UK:
C/O Visible Genetics Inc.
700 Bay Street, Suite 1000
Toronto, Ontario
Canada M5G 1Z6 Attention: General Counsel
Any notice given pursuant to this clause shall be deemed to have been
received: (a) if delivered by courier, at the time of delivery; or (b) if
sent by post; where posted in the country of the addressee, on the second
working day following the day of posting; and where posted in any other
country, on the fifth working day following the day of posting.
13. ENTIRE DEED AND SCHEDULES
13.1 This deed and the Schedules constitute the entire deed and
understanding between the parties with respect to all matters
which are referred to.
13.2 The Schedules form part of this deed.
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13.3 This deed binds each party's successors and assigns.
14. INVALIDITY
If any term or provision in this deed shall in whole or in part be held to
any extent to be illegal or unenforceable under any enactment or rule of
law, that term or provision or part shall to that extent be deemed not to
form part of this deed and the enforceability of the remainder of this deed
shall not be affected.
15. PROPER LAW
The construction, validity and performance of this deed shall be governed
by the laws of England.
16. RIGHTS OF THIRD PARTIES
A person who is not a party to this deed may not enforce any of its terms
under the Contracts (Rights of Third Parties) Act 1999. Notwithstanding any
term of this deed, the consent of any third party is not required for any
variation (including any release or compromise of any liability under) or
termination of this deed.
17. COUNTERPARTS
This deed may be executed in any number of counterparts and by facsimile and by
the parties on separate counterparts, each of which when so executed shall be an
original of this deed, and all of which shall together constitute one and the
same instrument. Complete sets of counterparts shall be lodged with each party.
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EXECUTED BY THE PARTIES AS A DEED
Common Seal of TIBOTEC-VIRCO N.V.
was hereunto
affixed in the presence of :
Director:____________________________
Director/Secretary:__________________
Date: _______________________________
Common Seal of VIRCO UK LTD.
was hereunto
affixed in the presence of:
Director_____________________________
Director/Secretary:__________________
Date: _______________________________
Common Seal of VISIBLE GENETICS UK LTD
was hereunto
affixed in the presence of:
Director_____________________________
Director/Secretary:__________________
Date: _______________________________
Common Seal of VISIBLE GENETICS INC.
was hereunto
affixed in the presence of:
Director_____________________________
Director/Secretary:__________________
Date: _______________________________
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