Exhibit 2.5
SHARE PURCHASE AGREEMENT
AMONG
PHOENIX INTERNATIONAL LIFE SCIENCES INC.
AND
DR. ANDRE VON FROREICH
AND
DR. ANDREAS WICKI
AND
CLINSERVE A.G.
-------------------------
DATED AS OF NOVEMBER 5, 1998
-------------------------
SHARE PURCHASE AGREEMENT dated as of November 5, 1998
AMONG: PHOENIX INTERNATIONAL LIFE SCIENCES INC., a
corporation incorporated under the Canada
Business Corporations Act, having its head
office at 2350, Cohen Street, Saint-Laurent,
Quebec, Canada, H4R 2N6, herein acting and
represented by John Hooper, its duly
authorized representative;
(hereinafter "Phoenix")
AND:
DR. ANDRE VON FROREICH, residing at
Forsthohe 33, 21149 Hamburg, Germany;
(hereinafter "Froreich")
AND: DR. ANDREAS WICKI, residing at Hohestrasse
39, 8702 Zollikon, Switzerland;
(hereinafter "Wicki")
(Froreich and Wicki are hereinafter
collectively referred to as the "Vendors")
AND:
CLINSERVE A.G., a Swiss corporation with
capital of SFr600,000, registered in the
Commercial Register of the Canton of
Fribourg under number EHRA-Id. 341 555 and
having its head office at rue St. Pierre 18,
1700 Fribourg, Switzerland, herein acting
and represented by Dr. Andreas Wicki, its
duly authorized representative;
(hereinafter "Clinserve")
WHEREAS, the Vendors hold, directly or indirectly, as more fully set
out in Schedule A, all of the outstanding shares and voting rights of Clinserve;
WHEREAS, Clinserve Clinical Trials Services GmbH ("Clinserve GmbH"), a
German corporation, with capital of DM50,000, registered in the Commercial
Register of Amtsgericht Hamburg under number 61 348 and having its head office
at Grossmooreogen 25, 21079 Hamburg, Germany, is a subsidiary of Clinserve, held
as to 100% by Clinserve. The capital structure of Clinserve GmbH is set forth in
Schedule B;
WHEREAS the Vendors have agreed to sell all of the outstanding shares
of Clinserve to Phoenix in consideration for the issuance to the Vendors of
common shares of Phoenix;
NOW, THEREFORE, the parties hereto agree as follows:
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1. INTERPRETATION AND DEFINITIONS
Except as the context otherwise explicitly requires, (a) the
capitalized term "Section" refers to sections of this Agreement; (b) the
capitalized terms "Schedules" and "Exhibit" refer to schedules and exhibits to
this Agreement; (c) references to a particular Section include all subsections
thereof; (d) the word "including" shall be construed as "including without
limitation"; (e) accounting terms not otherwise defined herein have the meaning
provided under GAAP (as defined below); (f) references to a particular law,
statute or regulation include all rules and regulations thereunder and any
successor, law, statute, regulation or rules, in each case as from time to time
in effect; (g) references to a particular Person include such Person's
successors and assigns to the extent not prohibited by this Agreement; (h)
references to dollars or $ in this Agreement are to Canadian dollars. In this
Agreement, unless the context otherwise requires, the following terms shall have
the respective meanings assigned to them:
1.1 "AFFILIATE" means, with respect to any Person, any Person
which, directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under
common control with such Person. For the purposes of this
Agreement, "Affiliate" also means an affiliate as such term
is defined by the SEC.
1.2 "ARTICLES" means the original or restated articles of
incorporation, articles of amendment, articles of
amalgamation, articles of continuance, articles of
reorganization and articles of arrangement, including
amendments thereto, as in effect from time to time, of
Clinserve.
1.3 "CLINSERVE AFFILIATE" means any of Froreich and Wicki.
1.4 "COMPENSATION" as applied to any Person means the aggregate of
all salaries, compensation, remuneration or bonuses of any
character, retirement or pension benefits of any kind, or
other payments of any kind whatsoever (other than health and
medical benefits made available to employees generally and
advances and reimbursements of business expenses) made
directly or indirectly by Clinserve, the Subsidiary or other
specified Persons to such Person and affiliates of such
Person.
1.5 "COMPLETION DATE" means the date of this Agreement, i.e.
November 5, 1998.
1.6 "Consolidated", when used with reference to any term, means
that term as applied to the accounts of Clinserve or other
indicated Person and each of its respective subsidiaries,
consolidated or combined in accordance with GAAP after
eliminating all inter-company operations and with appropriate
deductions for minority interests in subsidiaries.
1.7 "CONTRACTUAL OBLIGATION" means, with respect to any Person,
any contracts, agreements, deeds, hypothecs, mortgages,
indentures, leases, licenses, other instruments, commitments,
undertakings, arrangements or understandings, written or oral,
or other documents or instruments, including any provisions of
its articles of incorporation or other constituting documents
or by-laws and any document or instrument evidencing
Indebtedness, to which any such Person is a party or otherwise
subject to or bound by or to which any property or asset of
any such Person is subject.
1.8 "DISTRIBUTION" means (a) the declaration or payment of any
dividend on or in respect of the shares of any class or series
of shares of Clinserve, the Subsidiary or other specified
Person, other than dividends payable solely in common shares
of the share capital of the payor; (b) the purchase,
redemption or other retirement of any shares of any class of
Clinserve, the Subsidiary
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or other specified Person directly, or indirectly through a
Subsidiary or otherwise; or (c) any other distribution on or
in respect of any shares of any class or series of shares of
Clinserve, the Subsidiary or other specified Person.
1.9 "ESCROW AGENT" means Montreal Trust Company.
1.10 "ESCROW AGREEMENT" means the escrow agreement entered between
the parties hereto and the Escrow Agent a copy of which is
attached hereto as Schedule 1.10.
1.11 "ESCROWED SECURITIES" means the Phoenix Shares escrowed
pursuant to Section 2.4 together with all Proceeds (as defined
in the Escrow Agreement).
1.12 "ESCROWED SHARE PRICE" means the amount obtained by adding the
opening and closing prices of the common shares of Phoenix on
each of the Montreal Exchange and The Toronto Stock Exchange
for the ten trading days preceding the date of execution of
the present Agreement, divided by 40.
1.13 "ENVIRONMENTAL LAWS" means all Legal Requirements (including
consent decrees, administrative orders and contractual
obligations) relating to public health and safety, workers
health and safety and pollution or protection of the
environment.
1.14 "GAAP" means generally accepted accounting principles, as in
effect from time to time, consistently applied.
1.15 "GUARANTEE" means (a) any guarantee of the payment or
performance of, or any contingent obligation in respect of,
any indebtedness or other obligation of any other Person, (b)
any other arrangement whereby credit or financial assistance
is extended to one obligor on the basis of any promise or
undertaking of another Person (i) to pay the Indebtedness of
such obligor, (ii) to purchase any obligation owed by such
obligor, or (iii) to maintain the capital, working capital,
solvency or general financial condition of such obligor,
whether or not such arrangement is disclosed in the balance
sheet of such other Person or is referred to in a footnote
thereto or appears in a "keep well" agreement, "comfort
letter" or "take or pay" agreement, and (c) any liability of
Clinserve or the Subsidiary as general partner of a
partnership or as a venturer in a joint venture in respect of
Indebtedness or other obligations of such partnership or
venture; provided, however, that in no event shall Guarantees
include product warranties given or the endorsement of
negotiable instruments for deposit or collection in the
ordinary course of business.
1.16 "INDEBTEDNESS" means (a) all indebtedness, obligations and
liabilities for borrowed money and similar monetary
obligations evidenced by bonds, notes debentures, evidences of
indebtedness, capitalized lease obligations, deferred purchase
price of property (other than ordinary trade payables) or
otherwise, whether direct or indirect; and (b) all
indebtedness, obligations and liabilities secured by any Liens
existing on property owned or acquired, whether or not the
liability secured thereby shall have been assumed.
1.17 "LEGAL REQUIREMENT" means any national, provincial, regional,
municipal, local or foreign law, statute, standard, ordinance,
code, order, rule, regulation, resolution, promulgation,
by-law, policy, guideline, directive, standard and any other
provision having the force or effect of law or any final
order, judgment or decree of any court, arbitrator, tribunal
or governmental authority,
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or any license, franchise, permit, certificate, authorization,
registration or similar right granted under any of the
foregoing.
1.18 "LIEN" means (a) any hypothec, priority, mortgage, pledge,
lien, charge, security interest or other similar encumbrance
upon any property or assets of any character, or upon the
income or profits therefrom, whether arising by agreement or
under law, or otherwise (b) any conditional sale or other
title retention agreement or arrangement (including a
capitalized lease); (c) any sale, assignment, pledge or other
transfer for security of any accounts, general intangibles, or
chattel paper, with or without recourse, or (d) any
transaction (regardless of form) which is intended to create
any charge or encumbrance on property to secure the payment or
performance of an obligation.
1.19 "MANAGEMENT" means each of Froreich and Wicki.
1.20 "MATERIAL ADVERSE EFFECT" means any (a) material adverse
effect whatsoever upon the validity, performance or
enforceability of this Agreement, (b) material adverse effect
upon the business, assets, financial condition, income or
prospects of Clinserve and the Subsidiary on a Consolidated
basis, or (c) material adverse effect upon the ability of the
Vendors to perform their obligations under this Agreement.
1.21 "PERMITTED LIEN" means those Liens indicated on Schedule 1.21.
1.22 "PERSON" means an individual, partnership, corporation,
company, association, trust, joint venture, unincorporated
organization, business trust, limited liability company and
any governmental or administrative department or agency or
political subdivision.
1.23 "PHOENIX AFFILIATES" means John Hooper, Stephane Huguet,
Heather Baker, Judy Zilber, Jean-Yves Caloz, Diane Bouchard,
Carmen Discenza, Lucien Steru, Dominique Steru, Susan
Thornton, Greg Holmes, Claude E. Forget, Bertran Spilker,
Robert Raich, David Goldman, Suzanne Peeters, George
Engelberg, Wicki and Cornelius P. McCarthy III.
1.24 "SEC" means the United States Securities and Exchange
Commission.
1.25 "SECURITIES ACT" means the United States Securities Act of
1933, as amended, and all rules and regulations promulgated
thereunder.
1.26 "SHARES" means the 6,000 bearer shares with a nominal value of
SFr100 each of Clinserve being all of the issued and
outstanding shares of Clinserve.
1.27 "SUBSIDIARY" means Clinserve Clinical Trial Services GmbH.
2. SALE AND PURCHASE OF SHARES
2.1 AGREEMENT TO PURCHASE AND SELL SHARES
Upon the terms and subject to the conditions hereof and in
reliance on the representations and warranties of Phoenix set forth in
Section 4, Froreich and Wicki hereby sell to Phoenix and, upon the
terms and subject to the conditions hereof and in reliance on the
representations and warranties of the
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Vendors set forth in Section 3, Phoenix hereby purchases from Froreich
and Wicki, the Shares, as set forth below:
VENDOR NUMBER OF SHARES
------ ----------------
Froreich 4,800
Wicki 1,200
TOTAL 6,000
2.2 PRICE OF SHARES
The purchase price of the Shares is payable by the issuance by
Phoenix to Froreich and Wicki of an aggregate of 316,805 common shares
of Phoenix. The aggregate purchase price for the Shares is to be
allocated among Froreich and Wicki as follows:
VENDOR NUMBER OF COMMON SHARES OF PHOENIX
------ ----------------------------------
Froreich 253,444
Wicki 63,361
TOTAL 316,805
(The common shares of Phoenix issued to the Vendors pursuant to this
Section 2.2 are hereinafter collectively referred to as the "Phoenix
Shares".)
2.3 DELIVERY OF SHARES AND PAYMENT OF PURCHASE PRICE
2.3.1 Phoenix hereby acknowledges receipt from each of
Froreich and Wicki of certificates representing the
Shares duly endorsed in blank for transfer by
Froreich and Wicki.
2.3.2 Froreich and Wicki hereby acknowledge receipt from
Phoenix of certificates registered in the names of
Froreich and Wicki representing 90% of the purchase
price for the Shares.
2.4 ISSUANCE INTO ESCROW
Notwithstanding any provision of this Agreement, upon delivery
of the Phoenix Shares pursuant to Section 2.3, 10% of the aggregate
number of the Phoenix Shares shall be delivered immediately to the
Escrow Agent, on a pro rata basis among the Vendors, to be held and
released by the Escrow Agent pursuant to the terms of this Agreement
and the Escrow Agreement. All such Phoenix Shares shall be issued in
the name of the Escrow Agent, as escrow agent under the Escrow
Agreement. The Vendors hereby acknowledge receipt of such 10% of the
purchase price of the Shares on their behalf by the Escrow Agent.
3. REPRESENTATIONS AND WARRANTIES OF VENDORS
In order to induce Phoenix to enter into this Agreement and to purchase
the Shares hereunder, the Vendors hereby make the following representations and
warranties to Phoenix. The Vendors' liability for the following representations
and warranties shall be joint, and not solidary i.e. pro rata to the number of
Phoenix Shares received by each Vendor according to Section 2.2, except in the
event of fraud with respect thereto.
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3.1 SHARES
The Vendors own the Shares free and clear of all Liens and
there are no rights or other obstacles of any nature whatsoever to the
sale of the Shares to Phoenix.
3.2 ORGANIZATION
3.2.1 DUE INCORPORATION, ETC. Each of Clinserve and the
Subsidiary is duly incorporated or organized and
validly exists under the laws of its jurisdiction of
incorporation, and is in good standing under the laws
applicable to it and has all necessary corporate
capacity and power to own and lease its property and
assets and to carry on the businesses now conducted
or presently proposed to be conducted by it.
3.2.2 SUBSIDIARIES. Clinserve does not own or control,
directly or indirectly, or have an interest in, any
other corporation, partnership, association or
business entity other than the Subsidiary.
3.2.3 MANAGEMENT. The Management of Clinserve and the
Subsidiary is exclusively comprised of the Persons
referred to in Section 1.19.
3.2.4 AUTHORIZATIONS AND APPROVALS. All authorizations,
approvals, licences, permits, certificates,
registrations, consents, exemptions or declarations
required in order for each of Clinserve and the
Subsidiary to own or lease their property and assets
and to carry on their business in all jurisdictions
in which such property and assets are located or such
business is carried on have been duly obtained or
effected and are in full force and effect except for
authorizations, approvals, licences, permits,
certificates, registrations, consents, exemptions or
declarations, the absence of which, individually or
in the aggregate, does not and shall not result in a
Material Adverse Effect.
In particular:
(a) except for permits, certificates, licences,
registrations and other authorizations, the
absence of which, individually or in the
aggregate, does not and shall not result in
a Material Adverse Effect, each of Clinserve
and the Subsidiary hold all permits,
certificates, licenses, registrations and
other authorizations required under
applicable Environmental Laws for their
operations (the "Environmental Permits");
each such Environmental Permit is valid and
in force and the operations of Clinserve and
the Subsidiary are in compliance with the
conditions set out in such Environmental
Permits and their is no ground for
revocation, expiry or annulment of any such
Environmental Permits;
(b) except for permits, certificates, licences,
registrations and other authorizations, the
absence of which, individually or in the
aggregate, does not and shall not result in
a Material Adverse Effect, each of Clinserve
and the Subsidiary hold all permits,
certificates, licenses, registrations and
other authorizations required under
applicable Legal Requirement for clinical
research for the pharmaceutical industry and
pharmaceutical research (the "Research
Permits"); each such Research Permit is
valid and in force, the operations of
Clinserve and the Subsidiary are in
compliance with the conditions set out in
such Research
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Permits and there is no ground for
revocation, expiry or annulment of any such
Research Permits.
3.2.5 CORPORATE RECORDS. The Corporate records of Clinserve
and the Subsidiary are complete and up to date.
3.2.6 OFFICERS AND DIRECTORS. The officers and directors of
Clinserve and the Subsidiary have been properly
elected or appointed in accordance with applicable
laws and the relevant articles of incorporation or
other constituting documents.
3.2.7 CORPORATE ACTION. All necessary corporate action has
been taken by Clinserve, to authorize the execution
of this Agreement and the consummation of the
transactions contemplated hereby. The Board of
directors of Clinserve has agreed to register Phoenix
in the share ledger of Clinserve as the owner of the
Shares. The Vendors and Clinserve have fulfilled any
and all of their obligations under the preemptive
rights relating to the sale of the Shares.
3.3 CAPITALIZATION
3.3.1 SHARE CAPITAL OF CLINSERVE. The outstanding share
capital of Clinserve is exhaustively set forth in
Schedule A, all of which has been validly issued and
is fully paid and non-assessable and, subject to no
Lien, adverse claim or restriction on transfer,
except restrictions on transfer under this Agreement.
3.3.2 OPTIONS, ETC. Other than as set forth in Schedule A
and Schedule 3.3.5, Clinserve does not have
outstanding (a) any rights (either preemptive or
otherwise) or options to subscribe for or purchase,
or any warrants or other agreements providing for or
requiring the issuance of, any shares or any
securities convertible into or exchangeable for its
shares, (b) any obligation to redeem, purchase or
otherwise acquire or retire any of its shares, any
securities convertible into or exchangeable for its
shares or any rights, options or warrants with
respect thereto, (c) any rights to require Clinserve
to qualify for distribution for securities laws
purposes, or (d) any restrictions on voting.
3.3.3 CAPITAL STOCK OF THE SUBSIDIARY. The issued and
outstanding shares of the Subsidiary are as set forth
in Schedules B. The issued and outstanding shares of
the Subsidiary are validly issued, and paid and
non-assessable and subject to no Lien, adverse claim
or restriction on transfer, other than as set forth
in Schedule 3.3.3 and the shares of the Subsidiary
were purchased by Clinserve from Wicki and Froreich
on May 26, 1998 at their fair market value.
3.3.4 SUBSIDIARY OPTIONS, ETC. Other than as set forth in
Schedule 3.3.4, the Subsidiary does not have
outstanding (a) any rights (either preemptive or
otherwise) or options to subscribe for or purchase,
or any warrants or other agreements providing for or
requiring the issuance of, any shares or any
securities convertible into or exchangeable for its
shares, (b) any obligation to redeem, purchase or
otherwise acquire or retire any of its shares, any
securities convertible into or exchangeable for its
shares or any rights, options or warrants with
respect thereto, (c) any rights to require the
Subsidiary to qualify for distribution for securities
laws purposes, or (d) any restrictions on voting.
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3.3.5 NO COMMITMENTS AFFECTING SHARES, ETC. Other than as
set forth in Schedule 3.3.5, neither Clinserve nor
the Subsidiary is a party to or bound by any
agreement, commitment or understanding, whether
verbal or written, affecting its shares or the
participating or voting rights attached thereto.
3.4 REPORTS, FINANCIAL STATEMENTS AND OTHER DOCUMENTS
Phoenix has been provided with complete and correct copies of
audited financial statements of Clinserve for the years ended August
31, 1995, 1996 and 1997 and unaudited financial statements for the year
ended August 31, 1998 and consolidated financial statements of
Clinserve for the year ended August 31, 1998, and with complete and
correct copies of financial statements of the Subsidiary sealed by a
German auditor according to the German law on limited liability
companies for the years ended December 31, 1996 and 1997, copies of
which are attached hereto as Schedule 3.4A.
The financial statements of Clinserve and the Subsidiary
referred to above have been prepared in accordance with Swiss GAAP and
German GAAP, as applicable, and all such financial statements fairly
present the financial condition of Clinserve and the Subsidiary at the
dates thereof and the results of their operations for the periods
covered thereby. Other than as set forth in Schedule 3.5, neither
Clinserve nor the Subsidiary has material liabilities, contingent or
otherwise, which are not referred to in the financial statements.
The audited financial statements for the years ended August
31, 1995, 1996 and 1997, copies of which are attached hereto as
Schedule 3.4A have been properly approved by the annual general
meetings of shareholders of the relevant entities in due form without
reservation.
For purposes of financial presentation, Clinserve and the
Subsidiary recognize net revenue from their contracts on a percentage
of completion basis as work is performed. The percentage of completion,
and consequently the revenue to be recorded, of each individual
contract is determined through detailed analysis and discussion between
all appropriate operational and financial department management.
Although Clinserve and the Subsidiary do not require collateral for
unpaid balances, credit losses have consistently been within
Management's expectations. Certain contracts contain provisions for
price adjustment for cost overruns. Such adjusted amounts are included
in service revenue when realization is assured and the amounts can be
reasonably determined. In the period in which it is determined that a
loss will result from the performance of a contract, the entire amount
of the estimated ultimate loss is charged against income.
Since September 1, 1998, the business of Clinserve and the
Subsidiary has been operated in the customary fashion and no revenues
that would have been earned by Clinserve or the Subsidiary have been
earned by any Person who is an Affiliate of any of the Vendors.
Notwithstanding anything else in this Agreement, including,
without limitation, the provisions of this Section 3.4, the Vendors
make no representation or warranty of any kind whatsoever with respect
to future business, financial performance or future profitability of
Clinserve.
3.5 OFF BALANCE SHEET OBLIGATIONS
Schedule 3.5 contains a complete list of the off-balance sheet
obligations of Clinserve and the Subsidiary, including all guarantees
and obligations to the benefit of the Vendors, members of their
families or third parties.
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3.6 CHANGES IN CONDITION
Since September 1, 1998:
3.6.1 MATERIAL ADVERSE EFFECT. No event having a Material
Adverse Effect has occurred.
3.6.2 EXTRAORDINARY TRANSACTIONS, ETC. Other than as set
forth in Schedule 3.4A, neither Clinserve nor the
Subsidiary has (a) made any Distribution, (b) other
than as set forth in Schedule 3.6.2, made any payment
(other than Compensation of its directors, officers
and employees in amounts in effect prior to September
1, 1998 or for bonuses accrued in accordance with
normal practice prior to September 1, 1998) to any of
the Vendors, (c) other than as set forth in Schedule
3.6.2, increased the Compensation, including bonuses,
payable or to be payable to any of its directors,
officers or employees by more than 5%, or (d) entered
into any Contractual Obligation, or entered into or
performed any other transaction, not in the ordinary
and usual course of business and consistent with past
practice.
3.6.3 INVENTORY AND WORK-IN-PROGRESS. The value of
inventory and work-in-progress reflected in the
financial statements of Clinserve and the Subsidiary
has been established in accordance with Swiss and
German GAAP, respectively, and there has been no
material change in the period subsequent to August
31, 1998, other than in the ordinary and usual
courses of business.
3.6.4 REVENUES. The business of Clinserve and the
Subsidiary has been operated in the customary fashion
and no revenues that would have been earned by
Clinserve or the Subsidiary have been earned by any
Person which is an Affiliate of any of the Vendors.
3.7 CONTRACTUAL OBLIGATIONS, ETC.
3.7.1 CERTAIN CONTRACTS. Schedule 3.7.1 contains, together
with a reference to the subparagraph pursuant to
which each item is being disclosed, a correct and
complete list of all Contractual Obligations of
Clinserve and the Subsidiary of the types described
below:
(a) All collective bargaining agreements; all
employment agreements, all profit sharing,
profit participation, deferred compensation,
bonus, stock option, stock purchase,
pension, retainer, consulting, retirement,
welfare or incentive plans or agreements;
and all plans, agreements or practices which
constitute Compensation or "fringe benefits"
to any of the employees of Clinserve or the
Subsidiary, including vacation programs,
sick leave programs, group medical
insurance, group life insurance, disability
insurance and related benefits.
(b) All Contractual Obligations under which
Clinserve or the Subsidiary are restricted
from carrying on any business, venture or
other activities anywhere in the world.
(c) All Contractual Obligations (including
options) to sell, lease (as lessor),
exchange or otherwise dispose of or transfer
any of the properties or assets of Clinserve
or the Subsidiary except in the ordinary
course of business.
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(d) All Contractual Obligations pursuant to
which Clinserve or the Subsidiary guarantees
or otherwise assumes any liability of or
gives financial assistance to any Person, or
pursuant to which any Person guarantees or
otherwise assumes any liability of Clinserve
or the Subsidiary.
(e) All Contractual Obligations constituting
license agreements, service agreements,
consulting agreements or other similar
arrangements, the termination of which,
individually or in the aggregate, would
result in a Material Adverse Effect.
(f) All Contractual Obligations under which
Clinserve or the Subsidiary leases immovable
property or is obligated to lease or
purchase immovable property or incur capital
expenditures in excess of SFr50,000
annually.
(g) All Contractual Obligations of Clinserve or
the Subsidiary relating to the borrowing of
money or to the creation of a Lien, other
than a Permitted Lien, on any property or
asset of Clinserve, or the Subsidiary.
(h) All Contractual Obligations of Clinserve or
the Subsidiary requiring a notice exceeding
6 (six) months for termination.
3.7.2 NATURE OF CONTRACTS. All of the Contractual
Obligations of Clinserve and the Subsidiary at the
Completion Date are enforceable against Clinserve and
the Subsidiary, the other parties thereto, in
accordance with their terms; except for Contractual
Obligations the failure of which to be so enforceable
does not and shall not, individually or in the
aggregate, result in a Material Adverse Effect.
Except for breaches, defaults and liabilities which
do not and shall not individually or in the aggregate
result in a Material Adverse Effect, neither
Clinserve nor the Subsidiary is now in default, and
no event has occurred which with notice or lapse of
time or both would constitute a default under, nor
are there any liabilities arising from any breach or
default by any of them or event which with notice or
lapse of time or both would constitute a default by
any of them prior to the Completion Date of, any
provision of any such Contractual Obligation.
3.7.3 ARTICLES. Neither Clinserve nor the Subsidiary is in
violation of, or in default under, any provision of
its articles or constituting documents and Phoenix
has been provided with complete and correct copies of
such articles or constituting documents.
3.7.4 INSURANCE. Each of Clinserve and the Subsidiary
carries insurance policies with independent third
party insurers which, with respect to their amounts
and types of coverage, are adequate to insure against
risks to which each of Clinserve and the Subsidiary
and their respective property and assets are normally
exposed in the operation of their respective
businesses, including without limitation professional
liability. All policies, the absence of which,
individually or in the aggregate, would result in a
Material Adverse Effect, are in full force and effect
and free from any right of termination on the part of
the applicable insurance carriers. There are no
outstanding unpaid premiums except in the ordinary
course of business, and neither Clinserve nor any
Subsidiary has received any notice of cancellation or
non-renewal of any such policy. Neither Clinserve nor
any Subsidiary is aware of any risks, situations,
occurrences or other matters which have been
disclosed, or should have been disclosed, to
insurance carriers or brokers in connection with any
application for such insurance as a result of which
an insurance carrier would have a right to cancel the
corresponding
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insurance policy or deny coverage with respect to any
rights under any such policies. There exists no event
of default or event, occurrence, condition or act
(including the transactions contemplated by this
Agreement) which, with the giving of notice, the
lapse of time or the happening of any further event
or condition, would become a default or occasion a
material premium increase under any such policy or
give rise to, and neither Clinserve nor any
Subsidiary has any anticipation of, any termination
or cancellation thereof or material premium increase
therefor.
3.7.5 INSURANCE CLAIM. Each of the Vendors declares that
after thorough internal investigation, there is no
known fact, situation or circumstance involving
Clinserve or the Subsidiary or their directors or
officers, which would reasonably be expected to
result in any future claim being made against the
Company or the Subsidiary.
3.7.6 DISPUTE. Neither Clinserve nor the Subsidiary has
received any notice from any supplier, vendor,
contractor, customer or client with which Clinserve
or such Subsidiary has conducted business during the
one-year period ending on the date of this Agreement
confirming such Person's intention to reduce the
volume under, terminate or otherwise alter any
Contractual Obligation with Clinserve or any
Subsidiary, the effect of which, individually or in
the aggregate, would result in a Material Adverse
Effect.
3.8 OPERATIONS IN CONFORMITY WITH LAW, ETC.
The operations of Clinserve and the Subsidiary as now
conducted, and their properties, assets, equipments, buildings,
immoveables and leased or occupied properties, are not, and have not
been, in violation of, nor is Clinserve or the Subsidiary in default
and no event has occurred which with notice or lapse of time or both
would constitute a default under, any applicable Legal Requirements
including, in particular, any applicable Environmental Laws or Legal
Requirements regarding clinical research and experimentation on animals
[or humans], except for such violations and defaults as do not and
shall not, in the aggregate, have a Material Adverse Effect. Neither
Clinserve nor the Subsidiary has received notice of any such violation
or default and neither the Vendors nor the Management have knowledge of
any basis on which the operations of Clinserve or the Subsidiary, when
conducted as currently proposed to be conducted after the Completion
Date, would be held so as to violate or to give rise to any such
violation or default. Clinserve and the Subsidiary have all franchises,
licenses, permits, certificates, authorizations, registrations or other
authority presently necessary for the conduct of their business as now
conducted, except for franchises, licences, permits, certificates,
authorizations, registrations or other authority, the absence of which,
individually or in the aggregate, does not and shall not result in a
Material Adverse Effect. Based on the facts presently known to the
Vendors and Management, all future expenditures on the part of
Clinserve and the Subsidiary required to meet the provisions of any
presently existing applicable Legal Requirements (including Legal
Requirements relating to employment practices or to occupational or
health standards or to environmental considerations) shall not, in the
aggregate, have a Material Adverse Effect. Clinserve and the Subsidiary
have complied and are in compliance with applicable competition
regulations and have never infringed fair competition in the markets
where they operate, either with or towards third companies or between
themselves. Clinserve and the Subsidiary do not hold separately or
together a dominant position on the markets involved and their market
share and net aggregate turnover do not meet the European, Swiss or
German thresholds which authorizes European or domestic competition
authorities to control the operation and impede the completion of the
transaction contemplated hereby.
3.9 INTELLECTUAL PROPERTY
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Schedule 3.9 contains a list of all the trade-marks, trade
names and patents used by any of Clinserve or the Subsidiary
(collectively "Used Intellectual Property"). The entity indicated in
said Schedule as owner of Used Intellectual Property is the registered
and beneficial owner of such Used Intellectual Property or the
registration thereof, if applicable, (except as set forth in Schedule
3.9), with good and marketable title, unencumbered (except for
Permitted Liens), and with full right to sell, assign or otherwise
transfer or license to others and subject to no pending challenge,
refutation, expiry or termination other than as set forth in Schedule
3.9. To the Vendors' and Management's knowledge, other than as set
forth in Schedule 3.9, none of Clinserve or the Subsidiary uses any
intellectual property not owned by it, other than software purchased
"off the shelf", all of which each entity using said property has the
right to use (collectively "Licenced Intellectual Property"). (Used
Intellectual Property and Licensed Intellectual Property are sometimes
hereinafter referred to collectively as "Intellectual Property"). None
of Clinserve or the Subsidiary is required to pay royalties, fees or
other consideration to any other person with respect to the use of any
of the Intellectual Property or in connection with the conduct of its
business or otherwise. To the Vendors' and Management's knowledge, none
of Clinserve or the Subsidiary has infringed the intellectual or
industrial property rights of any other person, nor has any of them
used any intellectual or industrial property (including, without
limitation, trade-marks, trade names, patents, models, designs and
copyrights) which it does not own or have the right to use other than
as set forth in Schedule 3.9. There are no outstanding claims asserted
against any of Clinserve or the Subsidiary alleging the infringement or
the misappropriation by any of them of any intellectual or industrial
property. None of Clinserve or the Subsidiary has granted any licences
or sub-licences to third parties with respect to any of the
Intellectual Property other than as set forth in Schedule 3.9 and
neither the Vendors nor Management has any knowledge of any
infringement or misappropriation by any other Person of any of the
Intellectual Property. Neither the execution nor delivery of this
Agreement will constitute a breach of or a default under any agreement
relating to the Intellectual Property.
3.10 ENVIRONMENTAL MATTERS
3.10.1 Clinserve and the Subsidiary, their employees,
agents, shareholders, directors and officers (acting
in their capacity of employees, agents, shareholders,
directors or officers of Clinserve or of the
Subsidiary) have never been declared guilty of
committing an offence for a violation of
Environmental Laws and have never been fined for such
an offence or have otherwise settled such a
prosecution in connection with the activities of
Clinserve and the Subsidiary;
3.10.2 There are no contaminants, waste or pollutants of any
kind whatsoever in, on or under the equipment,
buildings, immoveables or properties owned, leased or
occupied by Clinserve or the Subsidiary and caused by
Clinserve, the Subsidiary or their employees, agents,
shareholders, directors or officers (acting in their
capacity of employees, agents, shareholders,
directors or officers of Clinserve or the
Subsidiary), the presence of which constitutes a
violation of applicable Environmental Laws and the
presence of which, individually or in the aggregate,
constitutes a Material Adverse Effect;
3.10.3 Neither Clinserve nor the Subsidiary has received any
written notice or request for information in the
context of any national, supra-national, provincial,
regional, local or municipal environmental
investigation or inspection;
3.10.4 There are no PCBs, asbestos or urea formaldehyde
insolation in, on or under the equipment, buildings,
immoveables or properties owned, leased or occupied
by Clinserve or the Subsidiary;
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3.10.5 There is no action, suit or proceeding pending in
relation to environmental matters against Clinserve
or the Subsidiary, its employees, agents,
shareholders, directors and officers (acting in their
capacity of employees, agents, shareholders,
directors or officers of Clinserve or of the
Subsidiary), or involving Clinserve or the Subsidiary
or its assets, before any judicial body, tribunal,
commission, agency or other governmental entity, and
to the Vendors' knowledge and to the knowledge of
Management, there is no threat of, or event or fact
based on which, such action, suit or proceeding may
be instituted;
3.10.6 To the knowledge of Management and the Vendors,
Clinserve and the Subsidiary are in compliance with
all applicable Environmental Laws.
3.11 LABOUR AND EMPLOYMENT MATTERS
3.11.1 Without limiting the generality of Section 3.8, each
of Clinserve and the Subsidiary has complied with all
applicable laws relating to the employment of labour,
including provisions thereof relating to wages, hours
and collective bargaining rights.
3.11.2 There is no collective agreement by which Clinserve
or the Subsidiary is bound which relates to the
employees of Clinserve or the Subsidiary. To the
knowledge of the Vendors and to the knowledge of
Management, there are no threatened or pending
attempts to organize or establish any labour union or
employee association in connection with the business
of Clinserve or the Subsidiary. To the knowledge of
the Vendors and to the knowledge of Management, there
is no pending or threatened labour dispute,
grievance, strike, or work stoppage materially
affecting the business of any of Clinserve or the
Subsidiary. Neither Clinserve nor the Subsidiary is a
party to any other written employment agreement,
contract, arrangement, management contract or service
contract affecting employees other than as set forth
in Schedule 3.7.1, nor are any such contracts,
agreements, arrangements, management contracts or
service contracts being currently negotiated or
proposed other than in the ordinary course of
business.
3.11.3 There exist no retirement plans, profit sharing,
option or incentive plans, or other employee benefit
plans for employees of Clinserve or the Subsidiary
other than as set forth in Schedule 3.7.1 for which
adequate arrangements have been made since September
1, 1998 to set aside the requisite amounts in the
prescribed fashion, and neither Clinserve nor the
Subsidiary has promised or intends to implement other
such plans.
3.11.4 Neither Clinserve nor the Subsidiary has any employee
who cannot be dismissed without further liability
upon such notice period not exceeding what it is
required by the applicable Legal Requirement.
3.11.5 Each of Clinserve's or any of the Subsidiary's
employees who is practising as a physician, nurse or
pharmacist is identified in Schedule 3.11.5, and each
such employee is duly licensed and in good standing
to practice as a physician, nurse or pharmacist, as
the case may be, in each jurisdiction in which such
employee renders services for or on behalf of
Clinserve or any Subsidiary. None of the employees
listed on Schedule 3.11.5 is or has been subject to
any claim in connection with his or her practice as
physician, nurse or pharmacist while employed by
Clinserve or the Subsidiary, as the case may be, and
no fact or occurrence is known to the Management to
exist which is likely to give rise to the revocation
of any such licence.
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3.11.6 None of Clinserve's or any of the Subsidiary's
employees has signed non-compete covenants in favour
of Clinserve or the Subsidiary.
3.12 TAXES
Other than as set forth in Schedule 3.12, all tax returns
required to be filed by Clinserve and the Subsidiary in any
jurisdiction have been filed and all taxes, assessments, levies and
other governmental charges upon Clinserve and the Subsidiary or upon
any of their properties or income, including any tax in respect of
value added, have been paid if and when due unless such payment is
being contested in good faith and by appropriate proceedings and
adequate reserves with respect thereto determined in accordance with
applicable policies have been established by Clinserve and the
Subsidiary. There is no tax revision threatened in writing against
Clinserve and the Subsidiary and there is no basis for such assessment.
3.13 WITHHOLDINGS
Each of Clinserve and the Subsidiary has withheld from each
payment made to any of its shareholders, officers, directors,
non-resident creditors and employees the amount of all taxes and other
deductions required to be withheld and has remitted all such amounts to
the appropriate authorities within the prescribed times, and has
otherwise fulfilled all requirements of all Legal Requirements
governing such deductions and withholdings. Each of Clinserve and the
Subsidiary has remitted to the proper authorities all employer
contributions due and payable under all social security, occupational
health and safety and pension plans.
3.14 GOOD TITLE
Other than as set forth in Schedule 3.14 each of Clinserve and
the Subsidiary has good and marketable title to all assets in the
balance sheets as per August 31, 1998 free and clear of Liens and other
adverse claims.
3.15 LITIGATION
Other than as set forth in Schedule 3.15, no litigation or
proceeding before, or investigation by, any foreign, national,
supra-national or municipal, judicial, tax or customs tribunal or board
or other governmental or administrative agency or any arbitrator, is
pending or threatened (or does any basis exist therefor), against
Clinserve or the Subsidiary or, to the Vendors' knowledge or to the
knowledge of Management, any director or officer of Clinserve or the
Subsidiary, which individually or in the aggregate could result in a
Material Adverse Effect, or which seeks rescission of, seeks to enjoin
the consummation of, or which questions the validity of, this Agreement
or any of the transactions contemplated hereby. Neither Clinserve nor
the Subsidiary has been charged, nor to the Vendors' knowledge or to
the knowledge of Management, is it threatened to be charged, with
infringement of any trademark, trade name, service mark, copyright,
patent, patent right or other proprietary right of any Person.
3.16 PRESS COVERAGE
Neither Clinserve nor the Subsidiary has been the object of
any demonstrations, press campaigns or other attacks due to the nature
of its activities.
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3.17 VIOLATION OF OTHER INSTRUMENTS
Neither the execution and delivery of this Agreement by the
Vendors, the consummation of any of the transactions contemplated
hereby or in Schedule 3.17, shall (a) constitute a breach of or a
default or an event which with notice or lapse of time or both would
constitute a default under any Contractual Obligation of Clinserve or
the Subsidiary, (b) result in acceleration in the time for performance
of any obligation of Clinserve or the Subsidiary under any such
Contractual Obligation, (c) result in the creation of any Lien upon any
property or asset of Clinserve or the Subsidiary, (d) require any
consent, waiver or amendment to any such Contractual Obligation that
has not been obtained and remains in full force and effect, (e) give
rise to any severance payment, right of termination, securities
purchase or redemption right or other right under any such Contractual
Obligation, or (f) violate or give rise to a default or an event which
with notice or lapse of time or both could constitute a default under
any Legal Requirements, except for events or conditions described in
clauses (a) through (f) above which shall not, individually or in the
aggregate, have any Material Adverse Effect or (g) result in any state
of facts which could have a Material Adverse Effect.
3.18 APPROVALS, CONSENTS, ETC.
Other than as set forth in Schedule 3.18, no approval,
consent, authorization or other order of, and no declaration, filing,
registration, qualification or recording with, any governmental
authority or any other Person is required to be made by or on behalf of
the Vendors, Clinserve or the Subsidiary in connection with the
execution, delivery or performance of this Agreement or any of the
transactions contemplated hereby.
3.19 INVESTMENT OR DIVESTITURE
Schedule 3.19 contains a complete list of all investments and
divestitures in process which are not mentioned in the financial
statements of Clinserve and the Subsidiary (balance sheet, statement of
earnings and schedules) for the period ended August 31, 1998.
3.20 FULL DISCLOSURE
Disclosure made by the Vendors in respect of one of the
representations contained in this Section 3 is considered being made in
respect of all other representations. There is no fact that the
Vendors, to the best of their knowledge, have not disclosed to Phoenix
which could have a Material Adverse Effect on the properties, business,
prospects or condition (financial or otherwise) of Clinserve or the
Subsidiary. Neither the reports, financial statements and other
documents referred to in Section 3.4, nor any certificate, statement or
document delivered by the Vendors to Phoenix in connection with this
Agreement contains any untrue statement of a fact or omits to state any
fact necessary to keep the statements contained herein or therein from
being misleading in a manner that would constitute a Material Adverse
Effect.
4. REPRESENTATIONS AND WARRANTIES OF PHOENIX
Phoenix represents and warrants to the Vendors that:
4.1 DUE INCORPORATION, ETC.
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Phoenix is duly incorporated, validly exists and is in good
standing under the Canada Business Corporations Act and has all
necessary corporate capacity and power to own and lease its property
and assets and to carry on the business now conducted by it.
4.2 SHARE CAPITAL OF PHOENIX
The authorized share capital of Phoenix is composed of an
unlimited number of common shares and an unlimited number of preferred
shares issuable in series of which, as at November 4, 1998, there were
24,857,059 common shares issued and outstanding.
4.3 OPTIONS
Other than the options to acquire common shares of Phoenix
granted pursuant to Phoenix's Key Employee Share Option Plan, shares to
be issued to Dorn Cook under an earn-out formula which has been
disclosed to the Vendors, an approximate number of 2,405,000 common
shares of Phoenix to be issued in payment of the purchase prices for
certain proposed acquisitions, Phoenix does not have any rights or
options to subscribe for, or any warrants or other agreements providing
for or requiring the issuance of common shares or preferred shares.
4.4 DUE AUTHORIZATION
All necessary corporate action has been taken by Phoenix to
authorize the execution of this Agreement and the consummation of the
transactions contemplated hereby, including the issuance of the Phoenix
Shares as fully paid and non-assessable in consideration for the
purchase of the Shares.
4.5 CONFORMITY WITH APPLICABLE SECURITIES LAWS
All documents have been filed, all requisite proceedings have
been taken and all approvals, exemptions, consents, orders and
authorizations required under applicable securities laws have been
obtained in order to validly and lawfully issue and deliver the Phoenix
Shares issued hereunder. The execution of this Agreement and the
issuance of the Phoenix Shares by Phoenix to the Vendors will be exempt
from the prospectus and registration requirements of the applicable
Canadian securities legislation.
4.6 STOCK EXCHANGE APPROVALS
The listing of the Phoenix Shares on The Montreal Exchange and
the Toronto Stock Exchange has been approved by such exchanges, subject
to Phoenix fulfilling all of the standard requirements of such
exchanges.
4.7 REPORTING ISSUER
Phoenix is a reporting issuer under the laws of the provinces
of Ontario and Quebec and is not in default of any requirements of the
securities legislation of such provinces.
4.8 PHOENIX SHARES
The Phoenix Shares will at the time of issuance be duly
authorized, validly issued, fully paid and non-assessable.
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4.9 HOLD PERIOD
The Phoenix Shares are not subject to any statutory hold
period or any resale restrictions under the SECURITIES ACT (Quebec).
4.10 PUBLIC INFORMATION
No material change (as defined in the Securities Act (Quebec))
has occurred in the affairs of Phoenix which had not been generally
disclosed to the public, nor has Phoenix any knowledge of any other
material adverse information in regard to the current and prospective
operations of Phoenix which have not been generally disclosed to the
public.
4.11 UNDERTAKING
Phoenix undertakes to refer to Clinserve all clinical
laboratory tests derived from Phoenix's European Phase II-IV studies,
to the extent allowed by Phoenix's clients.
5. POOLING OF INTERESTS
5.1 ACCOUNTING TREATMENT
Phoenix, Clinserve and the Vendors intend and desire for the
transactions contemplated by this Agreement to qualify for "pooling of
interests" treatment for US GAAP purposes in accordance with Accounting
Principles Board Opinion No. 16.
5.2 POOLING LETTERS
On or prior to the Completion Date, Clinserve shall cause to
be executed and delivered to Ernst & Young, auditors to Phoenix, and to
Phoenix a letter or letters, dated the Completion Date, from
Clinserve's shareholders in form and substance reasonably satisfactory
to Phoenix and its auditors relating to "pooling of interests"
accounting (the "Clinserve Pooling Letter"). On or prior to the
Completion Date, Phoenix shall deliver to Ernst & Young, auditors to
Phoenix, a letter or letters, dated the Completion Date, from Phoenix's
management in form and substance reasonably satisfactory to its
auditors relating to "pooling of interests" accounting.
5.3 PLACEMENT AND STOCK TRANSFER RESTRICTIONS AND RELATED MATTERS
Each party to this Agreement agrees that from and after the
date of this Agreement, such party shall not knowingly take any action,
or knowingly fail to take any action, which action or failure is
reasonably likely to disqualify the transactions contemplated by this
Agreement from pooling of interests accounting treatment by Phoenix,
and that such party shall take all reasonable actions necessary to
cause the transactions contemplated by this Agreement to qualify as a
pooling of interest, if such characterization shall be jeopardized by
action taken by such party. Without limiting the foregoing, each Vendor
who is a Pooling Affiliate of Clinserve agrees that such Vendor shall
not sell, transfer, pledge, or otherwise dispose of such Vendor's
interests in or reduce such Vendor's risk relative to any of the
Phoenix Shares until Phoenix shall have published financial results
(including combined sales and net income) covering at least thirty (30)
days of combined operations of Phoenix and Clinserve after the
Completion Date. No later than April 30, 1999, Phoenix shall prepare
and publish such financial results for the first full month of
operations following the Completion Date. Each of the Vendors and
Clinserve acknowledge and agree with Phoenix that none of the Vendors
or Clinserve
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is a party to any agreement or arrangement among themselves or with
third parties regarding the transactions contemplated by this Agreement
or the subject matter hereof.
Prior to the Completion Date, Phoenix shall deliver to
Clinserve a list of names and addresses of those persons who are or may
be, in Phoenix's reasonable judgement, Affiliates of Phoenix within the
meaning of Rule 145 of the rules and regulations promulgated under the
Securities Act or applicable SEC accounting releases with respect to
pooling of interests accounting treatment (each such persons, a
"Pooling Affiliate"). Phoenix also shall provide Clinserve with such
information and documents as Clinserve shall reasonably request for
purposes of reviewing such list. Prior to the Completion Date, Phoenix
shall deliver to Clinserve an affiliate letter, in form and substance
reasonably satisfactory to Clinserve, executed by each of the Pooling
Affiliates identified in the foregoing list.
Prior to the Completion Date, Clinserve shall deliver to
Phoenix an affiliate letter, in form and substance reasonably
satisfactory to Phoenix, executed by each of the Pooling Affiliate of
Clinserve. Clinserve represents to Phoenix that Froreich and Wicki are
the only Pooling Affiliates of Clinserve.
6. EMPLOYMENT AGREEMENT AND COOPERATION AGREEMENT
6.1 EMPLOYMENT AGREEMENT WITH CEMAL KUYAS
Cemal Kuyas and Clinserve GmbH shall execute an employment
agreement satisfactory in form and content to Phoenix and Clinserve.
7. SURVIVAL OF REPRESENTATIONS; INDEMNITY
7.1 SURVIVAL OF REPRESENTATIONS
The respective representations and warranties of the Vendors
contained in this Agreement or in any schedule attached hereto shall
survive the consummation of the transactions contemplated hereby and
shall remain in full force and effect notwithstanding any investigation
or examination of, or knowledge with respect to, the subject matter
thereof by or on behalf of Phoenix until the earlier of November 5,
1999 or the date of completion of the audit of the combined financial
statements of Phoenix and Clinserve (the period ending on such date
being referred to herein as the "Representations Period"), except that
such representations and warranties shall survive indefinitely in the
event of fraud with respect thereto. No claim for indemnification
pursuant to Section 7.2.1 below may be brought after the expiration of
the Representations Period, except for claims made in good faith in
writing prior to such expiration and setting forth in reasonable detail
the claim, regardless of whether any action or demand has been
commenced against Phoenix (it being understood without limitation, that
any and all Losses (as defined below) arising after the expiration of
the Representations Period shall be recoverable upon notice properly
given prior to the expiration of the Representations Period in
accordance with this Section 7.1). The representations and warranties
of Phoenix contained in this Agreement or in any schedule attached
hereto shall terminate upon and not survive the Completion Date, except
in the event of fraud by Phoenix with respect thereto, in which case
they shall survive indefinitely.
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7.2 INDEMNIFICATION
7.2.1 From and after the Completion Date, Phoenix and its
Affiliates (including Clinserve and the Subsidiary)
and all of their respective officers, directors,
employees, agents and shareholders (each, an
"Indemnitee") shall be defended, indemnified and held
harmless by the Vendors pursuant to this Agreement
and the Escrow Agreement to the full extent permitted
by law, from and against any and all losses, claims,
actions, damages, liabilities, costs and expenses
(including attorneys' fees and expenses)
(collectively, "Losses") relating to or arising from
or in connection with (i) any misrepresentation or
any non-fulfilment of any representation, warranty,
covenant, obligation or agreement by any Vendor
contained in or made pursuant to this Agreement or
any other document, agreement, officer's certificate
or other certificate delivered to Phoenix in
connection with this Agreement, and (ii) the
enforcement by Phoenix of its rights pursuant to this
Section 7.2, or any litigation, proceeding or
investigation relating to any of the foregoing. The
indemnification obligations of the Vendors pursuant
hereto shall be joint and not solidary, i.e. prorata
to the number of Phoenix Shares received by each
Vendor in accordance with Section 2.2.
7.2.2 Notwithstanding the foregoing provisions of this
Section 7.2, but except with respect to any Losses
resulting from or arising out of fraud or other
intentional or knowing misconduct or
misrepresentation, (i) the maximum aggregate recourse
by the Indemnitees pursuant to Section 7.2.1 above
shall not exceed the aggregate value (calculated by
adding together the opening and closing prices of the
common shares of Phoenix on each of the Toronto Stock
Exchange and The Montreal Exchange for each of the
ten trading days preceding the Completion Date, and
dividing this sum by 40) of the Escrowed Securities
(the "Indemnity Cap"), and (ii) the sole recourse of
any Indemnitee in respect of Losses (but not in
respect of fraud or other intentional or knowing
misconduct or misrepresentation) shall be from, out
of, and to the extent of the Escrowed Securities. Any
indemnification shall be payable by the return of
Escrowed Securities to Phoenix in accordance with the
provisions of the Escrow Agreement. In particular,
the number of Escrowed Shares to be remitted to
Phoenix in payment of any indemnification obligation
shall be calculated on the basis of the average price
of the Escrowed Shares obtained by adding together
the opening and closing prices of the common shares
of Phoenix on each of the Toronto Stock Exchange and
The Montreal Exchange for each of the ten trading
days preceding the Completion Date, and dividing this
sum by 40. All dividends or other distributions
received by a Vendor in respect of common shares of
Phoenix which are remitted to Phoenix in satisfaction
of an indemnification obligation under this Section
7, shall also be repaid to Phoenix at the time of
payment of indemnification.
7.2.3 Notwithstanding any other provision of this
Agreement, as of and after the Completion Date,
Clinserve shall not have any liability under this
Agreement, and no Vendor shall threaten or bring any
claim or action whatsoever against Clinserve for
contribution to any amounts payable under this
Section 7.2 by such Vendor.
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8. NOTICES
Any demand, notice or other communication to be given in connection
with this Agreement shall be given in writing and shall be given by personal
delivery, by registered mail or by electronic means of communication addressed
to the recipient as follows:
8.1 To Phoenix:
Phoenix International Life Sciences Inc.
2350, Cohen Street
Saint-Laurent, Quebec
H4R 2N6 Canada
Telecopier No.: (514) 333-7306
ATTENTION: JEAN-YVES CALOZ
8.2 To Froreich:
Dr. Andre von Froreich
Forsthohe 33
21149 Hamburg, Germany
8.3 To Wicki:
Dr. Andreas Wicki
Hohestrasse 39
8702 Zollikon, Switzerland
8.4 To Clinserve:
Clinserve A.G.
Rue St. Pierre 18
1700 Fribourg, Switzerland
ATTENTION: DR. VON FROREICH
9. MODIFICATION
All modifications or amendments of any provision of this Agreement
shall be effective only if the same shall be in writing and then shall be
effective only in the specific instance and for the purpose for which given.
10. WAIVER
No failure to exercise, and no delay in exercising, on the part of a
party hereto, any right hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right. No waiver of any provision of this
Agreement shall beeffective unless in writing. No notice or demand given in any
case shall constitute a waiver of the right to take other action in the same,
similar or other instances without such notice or demand.
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11. CONFIDENTIALITY
The parties agree to treat this Agreement as confidential and not to
disclose its contents to third parties other than their advisers, except to the
extent necessary to enforce performance of obligations hereunder, or as is
required to comply with applicable laws or regulations, including regulations of
any stock exchange on which the securities of Phoenix are listed following
consultations with Froreich and Wicki.
12. FURTHER ASSURANCES
The parties shall, with all reasonable diligence, do all such things
and provide all such reasonable assurances as may be required to consummate the
transactions contemplated hereby, and each party shall provide such further
documents or instruments required by another party as may be reasonably
necessary or desirable to give effect to the purpose of this Agreement and to
carry out its provisions.
13. GOVERNING LAWS
This Agreement shall be governed by the laws of the Province of Quebec
and the laws of Canada applicable therein.
14. ARBITRATION
All disputes arising out of or in connection with the present Agreement
shall be finally settled under the Rules of Arbitration of the International
Chamber of Commerce by one or more arbitrators appointed in accordance with the
said Rules.
The place of arbitration shall be Montreal.
The language of the arbitration shall be English.
15. GENERAL
The invalidity or unenforceability of any term or provision hereof
shall not affect the validity or enforceability of any other term or provision
hereof. The headings in this Agreement are for convenience of reference only and
shall not alter or otherwise affect the meaning hereof. This Agreement and the
other documents and instruments referred to herein constitute the entire
understanding of the parties hereto with respect to the subject matter hereof
and thereof and supersede all present and prior agreements, whether written or
oral. No investigation made by or on behalf of a party hereto shall mitigate,
diminish or affect the representations and warranties made herein by the
Vendors. This Agreement may be executed in any number of counterparts which
together shall constitute one instrument and shall be governed by and construed
in accordance with the laws of the Province of Quebec and the laws of Canada
applicable therein, and shall bind and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns. The parties hereto have expressly
required that this Agreement and all documents and notices related hereto be
drafted in English. LES PARTIES AUX PRESENTES ONT EXPRESSEMENT EXIGE QUE LE
PRESENT CONTRAT ET TOUS LES DOCUMENTS ET AVIS Y AFFERENTS SOIENT REDIGES EN
ANGLAIS.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be duly
executed as of the Completion Date.
-22-
PHOENIX INTERNATIONAL LIFE SCIENCES INC.
By: /s/ John W. Hooper
-------------------------------------
John Hooper, Ph.D.
Title: Chairman and Chief Executive Officer
/s/ Andre Von Froreich
-------------------------------------
DR. ANDRE VON FROREICH
/s/ Andreas Wicki
-------------------------------------
DR. ANDREAS WICKI
CLINSERVE A.G.
By: /s/ Andreas Wicki
-------------------------------------
Andreas Wicki
Title: Chairman of the board of directors
LIST OF SCHEDULES
Schedule A Outstanding shares and voting rights of Clinserve
Schedule B The capital structure of Clinserve
Schedule C The capital structure of Clinserve GmbH
Schedule 1.10 Escrow Agreement
Schedule 1.21 Permitted Lien
Schedule 3.3.3 Capital Stock of the Subsidiary
Schedule 3.3.4 Subsidiary Options
Schedule 3.3.5 Commitments affecting shares or voting rights of Clinserve
or the Subsidiary
Schedule 3.4A Financial Statements
Schedule 3.5 Material liabilities, contingent or otherwise of Clinserve
or the Subsidiary
Schedule 3.6.2 Extraordinary Transactions after August 31, 1998
Schedule 3.7.1 Contractual Obligations
Schedule 3.9 Intellectual Property
Schedule 3.11.5 Physicians, nurses or pharmacists employed by Clinserve and
the Subsidiary
Schedule 3.12 Taxes
Schedule 3.14 Title to assets
Schedule 3.15 Litigation
Schedule 3.17 Violation of Other Instruments
Schedule 3.18 Approvals, Consents, etc.
Schedule 3.19 Investment or Divestiture
Schedule 1.10
ESCROW AGREEMENT dated as of November 5, 1998.
AMONG: PHOENIX INTERNATIONAL LIFE SCIENCES INC., a
corporation incorporated under the Canada
Business Corporations Act, having its head
office at 2350, Cohen Street, Saint-Laurent,
Quebec, Canada, H4R 2N6, herein acting and
represented by John Hooper, Ph.D., its duly
authorized representative;
(hereinafter "Phoenix")
AND: DR. ANDRE VON FROREICH, residing at
Forsthohe 33, 21149 Hamburg, Germany;
(hereinafter "Froreich")
AND: DR. ANDREAS WICKI, residing at Hohestrasse
39, 8702 Zollikon, Switzerland;
(hereinafter "Wicki")
AND: MONTREAL TRUST COMPANY, 1800 McGill College
Avenue, Montreal, Quebec, H3A 3K9, as escrow
agent, herein represented by its duly
authorized representatives Rose Marie Labbe
and Guy L'Esperance;
(hereinafter the "Escrow Agent")
WHEREAS Phoenix and the Vendors are parties to a share purchase
agreement dated November 5, 1998 (the "Purchase Agreement");
WHEREAS the Purchase Agreement provides that certain shares of Phoenix
issued to the Vendors pursuant thereto are to be held in escrow for the purposes
described therein;
NOW THEREFORE the parties hereby agree as follows:
1. INTERPRETATION AND DEFINITIONS
1.1 Whenever used in this Agreement:
1.1.1 "AFFILIATE" means any of Froreich and Wicki and
"Affiliates" means more than one of them;
-2-
1.1.2 "CLAIM" means any claim by Phoenix against and the
Vendors under Section 7.2 of the Purchase Agreement;
1.1.3 "DISTRIBUTIONS" has the meaning ascribed thereto in
Section 2.3 hereof;
1.1.4 "ESCROWED SHARES" has the meaning ascribed thereto in
Section 2.1 hereof;
1.1.5 "ESCROWED SHARE PRICE" means the amount obtained by
adding the opening and closing prices of the common
shares of Phoenix on each of the Montreal Exchange
and The Toronto Stock Exchange for the ten trading
days preceding the date of execution of the Purchase
Agreement, divided by 40;
1.1.6 "NOTICE OF CLAIM" means a written notice of any Claim
given by Phoenix setting forth the details of each
Claim referred to therein including the amount
thereof, if known to Phoenix, or Phoenix's reasonable
estimate thereof, as well as the provisions of the
Purchase Agreement upon which such Claim is based;
1.1.7 "OBJECTION" means, in respect of any Claim, any
objection raised in the Response by any of the
Vendors to such Claim;
1.1.8 "PROCEEDS" has the meaning ascribed thereto in
Section 3.1 hereof;
1.1.9 "PURCHASE AGREEMENT" has the meaning ascribed thereto
in the preamble to this Agreement;
1.1.10 "RELEASED SHARES" has the meaning ascribed thereto in
Section 3.3.1.1 hereof;
1.1.11 "RESPONSE" means, in respect of any Claim, the joint
written response of the representatives of the
Vendors duly appointed in the manner set forth in
Section 3.3 hereof indicating whether they accept or
dispute such Claim;
1.1.12 "VENDORS" means Froreich and Wicki.
1.2 Each capitalized term used in this Agreement but not defined
herein as the meaning ascribed thereto in the Purchase
Agreement.
1.3 In the event of (i) any subdivision, consolidation or
reclassification of the class of shares comprising the
Escrowed Shares or (ii) any reorganization of the share
capital of Phoenix affecting the Escrowed Shares or (iii) the
amalgamation of Phoenix with any other company, the number of
Escrowed Shares and Escrowed Share Price shall be adjusted, if
required, so that none of the parties hereto shall be in a
position less favorable to it than as provided in this
Agreement as a result of any of the foregoing actions.
1.4 For all purposes of this Agreement, the amount of any Claim in
a currency other than Canadian dollars shall be converted to
Canadian dollars at the exchange rate between Canadian and
such currency shall be the "Spot Rate" of the alternate
currency on the business day preceding the day as of which the
conversion from one currency to the other is to be effected,
as reported in the Financial Post of Canada on that day.
-3-
1.5 In any calculation hereunder of the applicable number of
Escrowed Shares results in fractional shares, the result
shall be rounded up or down, as the case may be, to the
nearest whole number and, if such result represents exactly
one-half of a whole number, then such fraction shall be
rounded up to the next whole number.
2. ESTABLISHMENT OF ESCROW
2.1 Phoenix hereby delivers in escrow to the Escrow Agent
certificates representing an aggregate of 31,680 common shares
of Phoenix registered in the name of the Escrow Agent, as
escrow agent (the "Escrowed Shares"). The Vendors' interests
in the Escrowed Shares are as set forth below:
VENDOR ESCROWED SHARES
------ ---------------
Froreich 6,336
Wicki 25,344
2.2 The Escrow Agent hereby accepts delivery and acknowledges
receipt of the Escrowed Shares and agrees to act as escrow
agent and to hold, safeguard and release the Escrowed Shares
in accordance with the provisions of this Agreement. The
Escrowed Shares shall not be assigned, hypothecated,
alienated, released from escrow, transferred within escrow or
dealt with in any manner whatsoever except as provided in this
Agreement.
2.3 Notwithstanding the registration of the Escrowed Shares in the
name of the Escrow Agent, the Vendors shall, subject to the
provisions hereof, remain the owners thereof in the proportion
contemplated by Section 2.1 hereof and be entitled to the
exercise of all voting rights related thereto and to receive
all dividends, income and other distributions in respect
thereof (collectively, "Distributions"). In the event that any
Escrowed Shares are remitted to Phoenix for cancellation
pursuant to the provisions of Section 3 hereof, the Vendors
shall repay to Phoenix any Distributions received in respect
of such Escrowed Shares.
3. INSTRUCTIONS TO ESCROW AGENT
3.1 At any time after receipt by the Escrow Agent of written
notice by Phoenix of the release, in the format prescribed by
the SEC, of at least 30 days of post-combination financial
results of Phoenix and Clinserve AG, and provided that the
Escrowed Shares are not then subject to any restrictions on
transfer imposed by any Regulatory Authority, an Affiliate may
instruct the Escrow Agent to sell all or part of their portion
of the Escrowed Shares. Upon receipt of such written
instruction, the Escrow Agent shall sell such Escrowed Shares
on the open market and shall retain the proceeds of sale, less
any expenses incurred in realizing such sale (the "Proceeds")
as escrowed property for such Affiliate. The Escrow Agent
shall invest such Proceeds according to the written
instructions of such Affiliate for the duration of the escrow.
The Escrow Agent shall keep complete records of any such sales
of Escrowed Shares.
-4-
3.2 Whenever Phoenix has a Claim it shall promptly give a Notice
of Claim in respect thereof to the Vendors and the Escrow
Agent. Upon receipt of a Notice of Claim, the Escrow Agent
shall immediately reserve for distribution in accordance with
the provisions of Section 3.3 hereof (but shall not release
from escrow except in accordance with the provisions hereof)
that number of the Escrowed Shares which is equal in value to
the amount provided for in the Notice of Claim, calculated on
the basis of the Escrowed Share Price for such Claim.
3.3 Within 15 days of receipt of a Notice of Claim, the Vendors
(or any of them) shall give to Phoenix and the Escrow Agent a
response (the "Response") with respect to each Claim set forth
therein. If:
3.3.1 the Response indicates that the Vendors accept a
Claim set forth in the Notice of Claim, or if the
Escrow Agent does not receive a Response with respect
to a Claim within said 15 day period, the Vendors
shall be deemed to have irrevocably consented to each
Claim so accepted or in respect of which no Response
is so received, as made, and the Escrow Agent shall
forthwith give written notice thereof to Phoenix:
3.3.1.1 setting forth the total amount of all Claims
which have been consented to and the number
of shares from the Escrowed Shares to be
released from escrow for the benefit of
Phoenix (the "Released Shares"), being that
number of the Escrowed Shares which is equal
in value to the amount of the admitted
Claims set forth in such Notice of Claim,
calculated on the basis of the Escrowed
Share Price for such Claim; and
3.3.1.2 surrender for cancellation to Phoenix the
share certificate(s) in its possession
representing the Released Shares, duly
endorsed for transfer, and the Escrow Agent
shall retain in its possession the other
share certificate(s) representing the
balance of the Escrowed Shares, if any, to
be held by it in escrow and dealt with in
accordance with the terms hereof; or
3.3.2 the Response indicates that the Vendors (or any of
them) dispute a Claim set forth in the Notice of
Claim (whether or nor arbitration proceedings have
been instituted), the Escrow Agent shall retain in
its possession and continue to hold in escrow that
number of the Escrowed Shares which is equal in value
to the amount provided for in the disputed Claims,
calculated on the basis of the Escrowed Share Price
for such Claim:
3.3.2.1 until the Escrow Agent receives a joint
written notice from Phoenix and the Vendors
directing the Escrow Agent as to the manner
in which such Escrowed Shares and the share
certificate(s) representing same are to be
dealt with, in which case the Escrow Agent
shall deal with same in accordance with such
joint written instructions; or
3.3.2.2 in the absence of such a joint written
notice within 10 business days of the Escrow
Agent's receipt of the Response, the Escrow
Agent shall deal with such Escrowed Shares
and the share certificate(s) representing
same in accordance with a final arbitration
order in respect of such
-5-
disputed Claim(s) pursuant to the
arbitration contemplated by Section 12
hereof. Any arbitration order shall be
accompanied by a legal opinion by counsel
for the presenting party satisfactory to the
Escrow Agent to the effect that the said
order is final and non-appealable.
3.4 If, at the time of receipt by the Escrow Agent of any Notice
of Claim as provided for in Section 3.2 hereof, the Escrowed
Shares remaining in escrow for the account of any Vendor
calculated on the basis of the Escrowed Share Price is
insufficient to meet such Vendor's pro rata portion of the
number of Released Shares to be remitted to Phoenix, the
balance of such Vendor's pro rata portion of the admitted
Claims shall be satisfied by payment in cash from the Proceeds
of those Escrowed Shares sold by the Escrow Agent at the
direction of such Vendor pursuant to Section 3.1 hereof.
3.5 On the earlier of (i) November 5, 1999, or (ii) the date at
which the Escrow Agent receives a notice from Phoenix
confirming that the audit of the combined financial statements
of Phoenix and Clinserve AG has been completed, the Escrow
Agent will deliver the Escrowed Shares and all Distributions
and Proceeds to the Vendors, pro rata to their respective
interests in the Escrowed Shares, Distributions and Proceeds,
if any.
4. VOTING RIGHTS
4.1 The Escrow Agent shall provide to each of the Vendors a proxy
entitling such Vendor to vote those of the Escrowed Shares
which are owned by it, forthwith upon the Escrow Agent's
receipt thereof in its capacity as registered shareholder of
Phoenix, in order to allow each Vendor to vote its Escrowed
Shares in the same manner as if it were the registered owner
thereof.
5. RIGHTS AND OBLIGATIONS OF THE ESCROW AGENT
5.1 The Escrow Agent is not a party to, and is not bound by, any
provisions which may be evidenced by, or arise out of, any
agreement other than as therein set forth under the express
provisions of this Agreement.
5.2 The Escrow Agent acts hereunder as a depositary only and is
not responsible or liable in any manner whatever for the
sufficiency, correctness, genuineness or validity of any
instrument deposited with it, or for the form of execution of
such instrument or for the identity or authority or right of
any person or party executing or depositing it.
5.3 The Escrow Agent shall not be under any duty to give the
Escrowed Shares, Distributions and Proceeds, if any, held by
it hereunder any greater degree of care than it gives its own
similar property and shall not be required to invest any funds
held hereunder except as directed in this Agreement.
Uninvested funds held hereunder shall not earn or accrue
interest.
5.4 The Escrow Agent shall not be liable, except for its own gross
negligence or willful misconduct and, except with respect to
claims based upon such gross negligence or willful misconduct
that are successfully asserted against the Escrow Agent, the
other parties hereto shall solidarily indemnify and hold
harmless the Escrow Agent (and any successor Escrow Agent)
from and against any and all losses, liabilities, claims,
actions, damages and
-6-
expenses, including reasonable attorney's fees and
disbursements, arising out of and in connection with this
Agreement. Without limiting the foregoing, the Escrow Agent
shall in no event be liable in connection with its investment
or reinvestment of any cash held by it hereunder in good
faith, in accordance with the terms hereof.
5.5 The Escrow Agent shall be entitled to rely upon any order,
judgment, certification, demand, notice, instrument or other
writing delivered to it hereunder without being required to
determine the authenticity or the correctness of any fact
stated therein or the propriety or validity of the service
thereof. The Escrow Agent may act in reliance upon any
instrument or signature believed by it to be genuine and may
assume that the person purporting to give receipt or advice or
make any statement or execute any document in connection with
the provisions hereof has been duly authorized to do so. The
Escrow Agent may conclusively presume that the undersigned
representative of any party hereto which is an entity other
than a natural person has full power and authority to instruct
the Escrow Agent on behalf of that party unless written notice
to the contrary is delivered to the Escrow Agent.
5.6 The Escrow Agent may act pursuant to the advice of counsel
with respect to any matter relating to this Agreement and
shall not be liable for any action taken or omitted by it in
good faith in accordance with such advice.
5.7 The Escrow Agent makes no representation as to the validity,
value, genuineness or the collectability of any security or
other document or instrument held by or delivered to it.
5.8 The Escrow Agent shall not be called upon to advise any party
as to the wisdom in selling or retaining or taking or
refraining from any action with respect to any securities or
other property deposited hereunder.
5.9 The Escrow Agent (and any successor Escrow Agent) may at any
time resign as such by delivering the Escrowed Shares,
Distributions and Proceeds, if any, to any successor Escrow
Agent jointly designated by the other parties hereto in
writing, or to any court of competent jurisdiction, whereupon
Escrow Agent shall be discharged of and from any and all
further obligations arising in connection with this Agreement.
The resignation of Escrow Agent will take effect on the
earlier of (a) the appointment of a successor (including a
court of competent jurisdiction) or (b) the day which is 30
days after the date of delivery of its written notice of
resignation to the other parties hereto. If at that time
Escrow Agent has not received a designation of a successor
Escrow Agent, Escrow Agent's sole responsibility after that
time shall be to retain and safeguard the Escrowed Shares and
Proceeds, if any, until receipt of a designation of successor
Escrow Agent or a joint written disposition instruction by the
other parties hereto or a final non-appealable order of a
court of competent jurisdiction.
5.10 Phoenix and the Vendors shall pay Escrow Agent compensation
(as payment in full) for the services to be rendered by Escrow
Agent hereunder in the amount of $1,500 at the time of
execution of this Agreement and agree to reimburse Escrow
Agent for all reasonable expenses, disbursements and advances
incurred or made by Escrow Agent in performance of its duties
hereunder (including reasonable fees, expenses and
disbursements of its counsel).
-7-
6. LIMITED RESPONSIBILITY
This Agreement expressly sets forth all the duties of Escrow Agent with
respect to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this Agreement against the Escrow Agent.
The Escrow Agent shall not be bound by the provisions of any agreement
among the other parties hereto except this Agreement. No trust is
created by this Agreement and the Escrow Agent does not act in any
capacity as a trustee. In the event of any disagreement between any of
the parties to this Agreement, or between them or either of them and
any other person, resulting in demands or adverse claims being made in
connection with or for any asset involved herein or affected hereby,
the Escrow Agent shall be entitled, at its discretion, to refuse to
comply with any demands or claims on it, as long as such disagreement
shall continue, and in so refusing the Escrow Agent may make no
delivery or other disposition of any asset involved herein or affected
hereby, and in so doing the Escrow Agent shall not be or become liable
in any way or to any person or party for its failure or refusal to
comply with such conflicting demands or adverse claims, and it shall be
entitled to continue so to refrain from acting and so to refuse to act
until the right of person or party shall have been finally settled as
provided in Section 12 hereof, or all differences shall have been
adjusted by agreement and the Escrow Agent shall have been notified
thereof in writing signed by all persons and parties interested.
7. NOTICES
All notices, consents, waivers and other communications under this
Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt) provided that
a copy is mailed by registered mail, return receipt requested, or (c)
when received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case the
appropriate addresses and telecopier numbers set forth below (or to
such other addresses and telecopier numbers as a party may designate by
notice to the other parties):
7.1 To Phoenix:
Phoenix International Life Sciences Inc.
2350, Cohen Street
Saint-Laurent, Quebec
H4R 2N6 Canada
Telecopier No.: (514) 333-7306
ATTENTION: JEAN-YVES CALOZ
7.2 To the Vendors:
TO FROREICH:
Dr. Andre von Froreich
Forsthohe 33
21149 Hamburg, Germany
-8-
TO WICKI:
Dr. Andreas Wicki
Hohestrasse 39
8702 Zollikon, Switzerland
7.3 To the Escrow Agent:
Montreal Trust Company
1800 McGill College Avenue
Montreal (Quebec)
H3A 3K9
Telecopier No.: (514) 982-7677
8. GOVERNING LAW
This Agreement shall be governed by the laws of the Province of Quebec
and the laws of Canada applicable therein.
9. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original and all of which, when taken
together, will be deemed to constitute one and the same.
10. SECTION HEADINGS
The headings of sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation.
11. WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by any party in
exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of
such right, power or privilege, and no single or partial exercise of
any such right, power, or privilege will preclude any other or further
exercise of such right, power, or privilege or the exercise of any
other right, power, or privilege. To the maximum extent permitted by
applicable law, (a) no claim or right arising out of this Agreement or
the documents referred to in this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other parties; (b) no waiver that
may be given by a party will be applicable except in the specific
instance for which it is given; and (c) no notice to or demand on one
party will be deemed to be a waiver of any obligation of such party or
of the right of the party giving such notice or demand to take further
action without notice or demand as provided in this Agreement or the
documents referred to in this Agreement.
-9-
12. ARBITRATION
All disputes arising out of or in connection with the present Agreement
shall be finally settled under the Rules of Arbitration of the
International Chamber of Commerce by one or more arbitrators appointed
in accordance with the said Rules. The place of arbitration shall be
Montreal. The language of the arbitration shall be English.
13. CONFIDENTIALITY
The parties agree to treat this Agreement as confidential and not to
disclose its contents to third parties other than their advisers,
except to the extent necessary to enforce performance of obligations
hereunder, or as is required to comply with applicable laws or
regulations, including regulations of any stock exchange on which the
securities of Phoenix are listed.
14. FURTHER ASSURANCES
The parties shall, with all reasonable diligence, do all such things
and provide all such reasonable assurances as may be required to
consummate the transactions contemplated hereby, and each party shall
provide such further documents or instruments required by another party
as may be reasonably necessary or desirable to give effect to the
purpose of this Agreement and to carry out its provisions.
15. GENERAL
The invalidity or unenforceability of any term or provision hereof
shall not affect the validity or enforceability of any other term or
provision hereof. This Agreement and the other documents and
instruments referred to herein constitute the entire understanding of
the parties hereto with respect to the subject matter hereof and
thereof and supersede all present and prior agreements, whether written
or oral. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators,
personal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
PHOENIX INTERNATIONAL LIFE SCIENCES INC.
By: /s/ John W. Hooper
-------------------------------------
John Hooper, Ph.D.
Title: Chairman and Chief Executive Officer
/s/ Andre Von Froreich
-------------------------------------
DR. ANDRE VON FROREICH
-10-
/s/ Andreas Wicki
-------------------------------------
DR. ANDREAS WICKI
MONTREAL TRUST COMPANY
By: /s/ Rose Marie Labbe
-------------------------------
ROSE MARIE LABBE
Title: Trust Officer
By: /s/ Guy L'Esperance
-------------------------------
GUY L'ESPERANCE
Title: Manager, Client Servicing