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Exhibit 99.1
PURCHASE AND SALE AGREEMENT
This Agreement made and entered into this 5th day of December, 2000.
BETWEEN:
BIOLABS, INC., a public company duly incorporated under
the laws of the State of New York, having an office at
#1A, 3033 King George Highway, Surrey, British Columbia,
V4P 1B8 ("BIOLABS")
OF THE FIRST PART
AND:
DYNAMED, INC., a privately-held company duly incorporated
under the laws of the State of Washington, having an
office at 113 Second Street, Suite 102, Wanatchee,
Washington, 98801 ("DYNAMED")
OF THE SECOND PART
AND:
ANTONY DYAKOWSKI, of 4474 West 3rd Avenue, Vancouver,
British Columbia, V6R 1N1 ("DYAKOWSKI")
AND:
ELIO GUGLIELMI, of 2929 West 24th Avenue, Vancouver,
British Columbia, V6C 1R7 ("GUGLIELMI")
AND:
KEVIN O'FARRELL, of PH3 950 Bidwell Street, Vancouver,
British Columbia, V6G 2J9 ("O'FARRELL")
AND:
ROBERTA SOON, of PH3 950 Bidwell Street, Vancouver,
British Columbia, V6G 2J9 ("SOON")
OF THE THIRD PART
WHEREAS:
A. BioLabs desires to issue to DynaMed and to the BC Shareholders certain
shares of common stock in BioLabs;
B. DynaMed and the BC Shareholders (as hereafter defined) desire to
transfer to BioLabs all of the shares of stock owned by each of them
in BIOTHERAPIES, INC., a Michigan corporation (hereinafter referred to
as "BIOTHERAPIES");
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C. BioLabs desires to transfer to DynaMed certain shares of stock and
warrants in ID CERTIFY, INC., a Washington corporation ("ID CERTIFY");
D. DynaMed desires to transfer to BioLabs all of DynaMed's interest in
BIOMED TECHNOLOGIES, LLC, a Washington limited liability company
(hereinafter "BIOMED"), including that certain agreement dated
September 15, 1998 by and between BioTherapies, DynaMed and Dr. Paul
R. Ervin, Jr., individually (hereinafter "THE SEPTEMBER 15, 1998
AGREEMENT"), a copy of which is attached hereto and marked as Appendix
"A", plus certain other valuable consideration;
E. Following the completion of all transactions contemplated by this
Agreement (in a separate and distinct transaction that is in no
respect associated in any manner whatsoever with this Agreement) it is
BioLabs' intention to promptly enter into good faith discussions with
all persons with interests in BioMed, with the objective of obtaining
an agreement with said interested persons, to dissolve BioMed in the
foreseeable future; and
F. The parties mutually desire to reduce the terms of their agreement to
writing.
NOW, THEREFORE, THIS AGREEMENT WITNESSES that, in consideration of the premises
and the covenants and agreements herein contained, and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
ARTICLE 1: INTERPRETATION
1.1 Definitions. In this agreement, unless otherwise provided:
(a) "AGREEMENT" means this Purchase and Sale Agreement, as amended or
replaced from time to time;
(b) "BC SHAREHOLDERS" means:
(i) Dyakowski;
(ii) Guglielmi; and
(iii) O'Farrell and Soon, jointly;
(c) "CLOSING" means the concurrent closing of the purchase, sale and
delivery of the Purchased Securities and the execution and
delivery of the Transaction Documents, on the Closing Date;
(d) "CLOSING DATE" means the date set forth on the first page of this
Agreement or such other date as agreed in writing among the
parties;
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(e) "COMMON SHARES" means shares of any class of common shares in the
share capital of BioTherapies or BioLabs or ID Certify, as
appropriate;
(f) "CONTRACT" means any agreement, indenture, contract, lease, deed
of trust, license, strategic or collaborative research
arrangements, option, instrument or other commitment or
obligation, whether written or oral;
(g) "PERSON" means any individual, partnership, unincorporated
association, joint venture, syndicate, sole proprietorship,
company or corporation with or without share capital, trust,
trustee, executor, administrator, or other legal personal
representatives, regulatory body or agency, government or
governmental agency, authority or entity, however designated or
constituted;
(h) "PURCHASED SECURITIES" means the BioTherapies Stock, the BioLabs
Stock, the BioMed Interest, the ID Certify Stock and the ID
Certify Warrant;
(i) "TAX" or "TAXES" means all federal, provincial, state, municipal,
foreign and other taxes (including, without limitation, income
taxes, sales taxes, excise taxes, value added taxes, capital
taxes, property taxes, and production, severance and similar
taxes and assessments) and includes all penalties, interest and
fines with respect thereto;
(j) "TIME OF CLOSING" has the meaning set out in Section 3.1; and
(k) "TRANSACTION DOCUMENTS" means:
(i) this Agreement;
(ii) all consents and waivers required pursuant to this
transaction;
(iii) the Assignment, in the form attached hereto and marked as
APPENDIX "B";
(iv) the Receipt, in the form attached hereto and marked as
APPENDIX "C"; and
(v) the Release, in the form attached hereto and marked as
APPENDIX "D".
1.2 GENERAL INTERPRETATION. Any words defined elsewhere in the
Agreement shall have the particular meaning ascribed thereto. Words
(including defined terms) using or importing the singular number include the
plural and VICE VERSA and words importing one gender only shall include all
genders. The division of this Agreement into Articles and Sections and the
insertion of headings are for the convenience of reference only and shall not
affect the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof
and include any agreement supplemental hereto. Unless something in the
subject matter
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or context is inconsistent therewith, references herein to Articles, Sections
and Appendices are to Articles, Sections and Appendices of or to this Agreement.
ARTICLE 2: TRANSFER AND ISSUANCE OF PURCHASED SECURITIES
2.1 Subject to and in reliance upon the representations, warranties,
covenants, terms and conditions in this Agreement, on the Closing Date:
(a) One Hundred Thousand (100,000) Common Shares of BioTherapies
stock (the "BIOTHERAPIES STOCK") shall be transferred to BioLabs
as set out below:
(i) DynaMed will transfer Ninety Thousand, Nine Hundred and
Eighteen (90,918) Common Shares of BioTherapies Stock to
BioLabs;
(ii) Dyakowski will transfer Six Thousand Three Hundred and
Twenty Two (6,322) Common Shares of BioTherapies Stock to
BioLabs;
(iii) Guglielmi will transfer Seven Hundred and Sixty (760)
Common Shares of BioTherapies Stock to BioLabs; and
(iv) O'Farrell and Soon, jointly, will transfer Two Thousand
(2,000) Common Shares of BioTherapies Stock to BioLabs;
(b) One Million and One Hundred Thousand (1,100,000) Common Shares of
BioLabs stock (the "BIOLABS STOCK") shall be allotted from
treasury and issued by BioLabs as set out below:
(i) Nine Hundred Sixty Three Thousand and Fifty One
(963,051) Common Shares of BioLabs Stock will be issued
to DynaMed as consideration, together with the items
described in Sections 2.1(d) and 2.1(e), for the
BioTherapies Stock referred to in Section 2.1(a)(i) and
the BioMed Interest (as hereafter defined);
(ii) Ninety Five Thousand Three Hundred and Thirty Three
(95,333) Common Shares of BioLabs Stock will be issued
to Dyakowski in exchange for the BioTherapies Stock
referred to in Section 2.1(a)(ii);
(iii) Eleven Thousand Four Hundred and Fifty-Eight (11,458)
Common Shares of BioLabs Stock will be issued to Guglielmi
in exchange for the BioTherapies Stock referred to in
Section 2.1(a)(iii); and
(iv) Thirty Thousand One Hundred and Fifty Eight (30,158) Common
Shares of BioLabs Stock will be issued to O'Farrell and
Soon, jointly in exchange for the BioTherapies Stock
referred to in Section 2.1(a)(iv);
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(c) DynaMed shall transfer, convey, assign and set-over to BioLabs
all of DynaMed's rights, title and 50% interest in BioMed,
including, without limitation, DynaMed's interest in The
September 15, 1998 Agreement, and DynaMed's 50% interest in any
and all assets of BioMed, including any real property or any
intellectual property (collectively, the "BIOMED INTEREST");
(d) BioLabs shall transfer to DynaMed Eight Hundred Thousand
(800,000) shares of Preferred Class "C" stock in ID Certify (the
"ID CERTIFY STOCK") and a warrant to purchase One Hundred Sixty
Thousand (160,000) shares of Common Shares of ID Certify (the "ID
CERTIFY WARRANT"); and
(e) BioLabs agrees to pay and has paid to DynaMed, in advance of the
Closing Date, USD$50,000 cash, receipt of which amount is hereby
acknowledged by DynaMed.
2.2 CONCURRENT CLOSINGS. The purchase and sale of all Purchased
Securities (the "TRANSACTION") will be closed concurrently at the same time and
place on the Closing Date as the execution and closing of the Transaction
Documents and no part of the purchase and sale of the Purchased Securities will
be considered closed until all parts of that Transaction are closed.
ARTICLE 3: CLOSING
3.1 PLACE OF CLOSING. The Closing of the Transaction referred to in this
Agreement shall take place at 10:00 a.m. (Pacific Standard Time) (the "CLOSING
TIME") on the Closing Date at the office of McCarthy Tetrault, solicitors to
BioLabs, at Suite 1300, 777 Dunsmuir Street, Vancouver, British Columbia,
Canada, V7Y 1K2.
3.2 DOCUMENTS TO BE DELIVERED BY DYNAMED AND THE BC SHAREHOLDERS UPON
CLOSING: At the Closing, DynaMed and the BC Shareholders shall deliver or cause
to be delivered to BioLabs:
(a) Share certificates representing the BioTherapies Stock, duly and
validly registered in the name of DynaMed and the BC
Shareholders, accompanied by signed stock powers of transfer with
signatures appropriately guaranteed;
(b) Any other documents necessary to validly and legally transfer the
BioTherapies Stock to BioLabs and to permit BioLabs to arrange
for registration of the BioTherapies Stock in the name of
BioLabs;
(c) Certificate of Formation of BioMed, and any and all other
constating documents of BioMed that may be in existence;
(d) The duly-executed Transaction Documents;
(e) Any other documents necessary to validly and legally transfer the
BioMed Interest from DynaMed to BioLabs;
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(f) Legal opinion from counsel to DynaMed in a form satisfactory to
BioLabs; and
(g) Such other documentation as BioLabs or its counsel may reasonably
request.
3.3 DOCUMENTS TO BE DELIVERED BY BIOLABS UPON CLOSING. At the Closing,
BioLabs shall deliver or cause to be delivered:
(a) Share certificates representing the BioLabs Stock, duly and
validly registered in the name of DynaMed or the BC Shareholders
(as applicable);
(b) Certificates representing the ID Certify Stock and the ID Certify
Warrant duly and validly registered in the name of BioLabs,
accompanied by signed stock powers of transfer with signatures
appropriately guaranteed; and
(c) Any other documents necessary to validly and legally transfer the
ID Certify Stock and ID Certify Warrant to DynaMed and to permit
DynaMed to arrange for registration of the ID Certify Stock and
the ID Certify Warrant in the name of DynaMed.
3.4 EXPENSES OF CLOSING.
(a) BIOLABS' EXPENSES. BioLabs shall pay its respective legal and
accounting costs and expenses incurred in connection with the
drafting, negotiation and closing of the Transaction, and any
other costs and expenses whatsoever and howsoever incurred by
BioLabs, including any applicable excise taxes and all of
BioLabs' attorney's fees and costs. BioLabs shall also be
responsible for any income tax obligation incurred by BioLabs as
a result of the Transaction.
(b) DYNAMED'S EXPENSES. DynaMed shall pay its respective legal and
accounting costs and expenses incurred in connection with the
drafting, negotiation and closing of the Transaction, and any
other costs and expenses whatsoever and howsoever incurred by
DynaMed, including any applicable excise taxes and all of
DynaMed's attorney's fees and costs. DynaMed shall also be
responsible for any income tax obligation incurred by DynaMed as
a result of the Transaction.
(c) BC SHAREHOLDERS' EXPENSES. Each of the BC Shareholder's
respectively, shall pay such BC Shareholders respective legal and
accounting costs and expenses incurred in connection with the
drafting, negotiation and closing of the Transaction, and any
other costs and expenses whatsoever and howsoever incurred by
them, including any applicable excise taxes and all of such BC
Shareholder's attorney's fees and costs. Each of the BC
Shareholders, respectively, shall also be responsible for any
income tax obligation incurred by such BC Shareholder as a result
of the Transaction.
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ARTICLE 4: DYNAMED'S REPRESENTATIONS AND WARRANTIES
4.1 DynaMed warrants and represents to BioLabs the following:
(a) DynaMed is a corporation duly organized and validly existing and
in good standing under the laws of Washington State in the United
States of America ("USA") with the corporate power to own its
assets and to carry on its business and has made all necessary
filings under all applicable corporate, securities, and taxation
laws or any other laws to which DynaMed is subject;
(b) BioMed is a Washington Limited Liability Company duly organized
and validly existing and in good standing under the laws of
Washington State in the USA with the power to own its assets and
to carry on its business and has made all necessary filings under
all applicable company, securities, and taxation laws or any
other laws to which BioMed is subject;
(c) Neither the entering into nor the delivery of this Agreement nor
the completion of the transactions contemplated hereby by DynaMed
will result in the violation of any of the provisions of the
constating documents of DynaMed or of BioMed, or any agreement or
other instrument to which DynaMed or BioMed is a party or by
which DynaMed is bound which will not be terminated as of the
Closing Date, or any applicable law, rule or regulation;
(d) DynaMed is the legal and registered and beneficial owner of and
has good and marketable title to all of the shares, interests,
assets and rights which are being transferred by DynaMed pursuant
to this Agreement, specifically including all shares, interests,
assets and rights relating to the BioMed Interest and relating to
the BioTherapies Stock described in Section 2.1(a)(i);
(e) All shares, interests, assets and rights being transferred by
DynaMed to BioLabs pursuant to this Agreement are transferred
free and clear of any claims, liens, charges or other
encumbrances whatsoever, except as specifically and otherwise set
forth herein;
(f) DynaMed has complied with all laws, rules and regulations of any
state, federal or local government, and is in good standing in
each jurisdiction where DynaMed or the location of its assets
require such qualification;
(g) To the best of the knowledge of DynaMed, BioMed has complied with
all laws, rules and regulations of any state, federal or local
government, and is in good standing where BioMed or the location
of its assets require such qualification;
(h) To the best of the knowledge of DynaMed, the representations and
warranties provided by BioTherapies in APPENDIX "E" are true and
complete in all respects; and
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(i) To the best of the knowledge of DynaMed, with the sole exception
of the dispute detailed in the December 22, 1999 Notice of Intent
to Arbitrate that was served upon BioTherapies by DynaMed (a
complete copy of which is attached hereto as EXHIBIT "A" to
APPENDIX "D"), there is no controversy, claim, action, suit or
proceeding at law or in equity by or before any governmental
agency, arbitrator, or arbitration board now pending, or
threatened against or affecting BioTherapies or BioMed or any of
BioTherapies' or BioMed's properties or assets and DynaMed is not
aware of any ground on which such action, suit or proceeding
might be commenced with any reasonable likelihood of success;
(j) There is no Contract, option, or any other right of another
binding upon or which at any time in the future may become
binding upon DynaMed to sell, transfer, assign, pledge, charge,
mortgage or in any other way dispose of or encumber any of the
BioMed Interest, or the BioTherapies Stock, other than pursuant
to the provisions of this Agreement;
(k) The BioTherapies Stock described in Section 2.1(a)(i) of this
Agreement represents all of the shares, warrants, options or
other securities of BioTherapies held by DynaMed;
(l) The BioMed Interest represents all of the interest held by
DynaMed in BioMed;
(m) DynaMed has validly obtained from all relevant parties all
permits, consents, authorizations, approvals and other legal
documents necessary to legally and validly assign and transfer to
BioLabs, any and all of the BioTherapies Stock described in
Section 2.1(a)(i) and the BioMed Interest, specifically including
any and all of DynaMed's interest in The September 15, 1998
Agreement;
(n) The BioTherapies Stock described in Section 2.1(a)(i) and the
BioMed Interest, in all respects, have each been offered, sold
and delivered by DynaMed to BioLabs in compliance with all
applicable federal, state and provincial securities laws in the
USA and Canada;
(o) Upon completion of the Closing, BioLabs will have full right to
become the legal and registered owner of and will have good and
marketable title to the BioTherapies Stock and the BioMed
Interest free and clear of all pre-emptive rights, mortgages,
liens, charges, security interests, adverse claims, pledges and
demands whatsoever arising by reason of the acts or omissions of
DynaMed or its shareholders, other than the restrictions on
transfer imposed by applicable USA or Canadian securities laws;
(p) Neither the sale nor transfer of the BioTherapies Stock and the
BioMed Interest will:
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(i) contravene, conflict with or result in a violation or breach
of, or result in a default under, any provision of any
Contract to which DynaMed is a party or by which it or its
property is bound; nor
(ii) give any Person the right to:
A. declare a default or exercise any remedy under any
Contract to which DynaMed is a party;
B. accelerate the maturity or performance of any Contract,
or any provision in any contract, to which DynaMed is a
party; or
C. cancel, terminate or modify any Contract to which
DynaMed is party;
(q) All action on the part of DynaMed and its directors and
shareholders necessary for the execution, delivery and
performance of the Agreement, and the transfer and delivery to
BioLabs of the BioTherapies Stock and the BioMed Interest has
been taken;
(r) There is no requirement for DynaMed to make any filing with, give
any notice to or to obtain any license, permit, certificate,
registration, authorization, consent or approval of, any USA or
Canadian governmental or regulatory authority as a condition to
the lawful consummation of any of the transactions contemplated
by this Agreement;
(s) Every owner of an equity interest in DynaMed is an "accredited
investor", as that term is defined in Rule 501 promulgated under
the U.S. Securities Act of 1933, as amended; and
(t) DynaMed is not acquiring the BioLabs Stock referred to in Section
2.1(b)(i) as part of a transaction or series of transactions
involving further purchases and sales in the course of or
incidental to a distribution of such shares in the province of
British Columbia and, to the extent that DynaMed is contemplating
reselling or transferring any such shares, it will not resell or
transfer any such shares in British Columbia or to a Person in
British Columbia and no act, advertisement, solicitation, conduct
or negotiation directly or indirectly in furtherance of any such
resale or transfer will occur in British Columbia;
(u) DynaMed acknowledges that (i) securities to be issued or
transferred to it pursuant to this Agreement have not been
qualified by a prospectus filed under the securities laws of any
jurisdiction or qualified for distribution or registered or the
subject of registration under the Securities Act of 1933, as
amended, of the USA, USA federal securities laws or the laws of
any Canadian province or USA state or other jurisdiction
(collectively, the "SECURITIES LAWS"); (ii) absent exemptions
from the registration and prospectus requirements under the
Securities Laws, the issuance or transfer of securities to be
transferred pursuant to this Agreement
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would be subject to the prospectus and registration requirements
of such laws; (iii) BioLabs is and will be issuing and
transferring such securities in reliance upon exemptions from the
registration and prospectus requirements of such Securities Laws;
and (iv) reliance by BioLabs is based upon DynaMed's
representations and warranties contained in this Agreement;
(v) DynaMed understands that no securities commission or other
federal or state or provincial agency or other regulatory
authority (within or outside of Canada or the USA) has made any
finding or determination regarding the fairness of the offer,
sale or issuance of the securities described herein, has made any
recommendation or endorsement of the offer and sale of the
securities described herein or has reviewed or passed in any way
upon this Agreement or passed upon the merits of the securities
described herein;
(w) DynaMed acknowledges that (i) the securities to be acquired by it
pursuant to this Agreement will be subject to resale restrictions
under applicable Securities Laws, including statutory hold
periods, which, in respect of the hold period imposed pursuant to
the applicable Securities Laws of the Province of British
Columbia, may never expire, and DynaMed agrees to comply with
such restrictions; (ii) DynaMed has been independently advised by
its own legal advisors with respect to the restrictions which are
applicable with respect to trading in the securities and the fact
that it will not be able to trade in such securities except in
accordance with certain limited exemptions under applicable
Securities Laws, and understands such restrictions and
acknowledges that it is solely responsible (and BioLabs is not in
any manner responsible) for complying with all such Securities
Laws and such resale restrictions and that BioLabs makes no
representation or warranty regarding such resale restrictions or
whether any exemption may be available under such applicable
securities laws to permit DynaMed to resell or transfer and
securities so acquired and is under no obligation to register or
qualify the securities under any Securities Laws and that DynaMed
has no right to require such registration or qualification; and
(x) DynaMed acknowledges that the certificates representing the
BioLabs Stock referred to in Section 2.1(b) may bear such legends
as counsel for BioLabs may advise are necessary or desirable
pursuant to applicable Securities Laws, including legends
substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN
ACQUIRED BY THE HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED,
HYPOTHECATED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
AS MAY BE AUTHORIZED UNDER THE SECURITIES ACT OF 1933, AND THE
RULES AND REGULATIONS PROMULGATED THEREUNDER.
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ARTICLE 5: THE BC SHAREHOLDERS' REPRESENTATIONS AND WARRANTIES
5.1 Each of the BC Shareholders warrants and represents to BioLabs the
following:
(a) Neither the entering into nor the delivery of this Agreement nor
the completion of the transactions contemplated hereby by such BC
Shareholder will result in the violation of any agreement or
other instrument to which such BC Shareholder is a party or by
which such BC Shareholder is bound which will not be terminated
as of the Closing Date, or any applicable law, rule or
regulation;
(b) Such BC Shareholder is the legal and registered and beneficial
owner of and has good and marketable title to all of the shares,
interests, assets and rights which are being transferred by such
BC Shareholder pursuant to this Agreement, specifically including
all shares, interests, assets and rights relating to the
BioTherapies Stock described in Section 2.1(a);
(c) All shares, interests, assets and rights being transferred by
such BC Shareholder to BioLabs pursuant to this Agreement are
transferred free and clear of any claims, liens, charges or other
encumbrances whatsoever, except as specifically and otherwise set
forth herein;
(d) To the best of the knowledge of such BC Shareholder with the sole
exception of the dispute detailed in the December 22, 1999 Notice
of Intent to Arbitrate that was served upon BioTherapies by
DynaMed (a complete copy of which is attached hereto as EXHIBIT
"A" to Appendix "D"), there is no controversy, claim, action,
suit or proceeding at law or in equity by or before any
governmental agency, arbitrator, or arbitration board now
pending, or threatened against or affecting BioTherapies, or any
of the properties or assets of BioTherapies, and such BC
Shareholder is not aware of any ground on which such action, suit
or proceeding might be commenced with any reasonable likelihood
of success;
(e) There is no Contract, option, or any other right of another
binding upon or which at any time in the future may become
binding upon such BC Shareholder to sell, transfer, assign,
pledge, charge, mortgage or in any other way dispose of or
encumber any of the BioTherapies Stock described in Section
2.1(a)(ii), 2.1(a)(iii) or 2.1(a)(iv) to be transferred by such
BC Shareholder pursuant to this Agreement other than pursuant to
the provisions of this Agreement;
(f) The BioTherapies Stock described in Section 2.1(a)(ii),
2.1(a)(iii) or 2.1(a)(iv) to be transferred by such BC
Shareholder pursuant to this Agreement, in all respects, has been
offered, sold, transferred and delivered by such BC Shareholder
to BioLabs in compliance with all applicable federal, state and
provincial securities laws in the USA and Canada;
(g) Upon completion of the Closing, BioLabs will be the legal and
registered owner of and will have good and marketable title to
the BioTherapies Stock free and
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clear of all pre-emptive rights, mortgages, liens, charges,
security interests, adverse claims, pledges and demands
whatsoever arising by reason of the acts or omissions of such BC
Shareholder other than the restrictions on transfer imposed by
applicable USA or Canadian securities laws;
(h) Neither the sale nor transfer of the BioTherapies Stock described
in Section 2.1(a)(ii), 2.1(a)(iii) or 2.1(a)(iv) to be
transferred by such BC Shareholder pursuant to this Agreement
will:
(i) contravene, conflict with or result in a violation or breach
of, or result in a default under, any provision of any
Contract to which such BC Shareholder is a party or by which
such BC Shareholder is bound; nor
(ii) give any Person the right to:
A. declare a default or exercise any remedy under any
contract to which such BC Shareholder is a party;
B. accelerate the maturity or performance of any Contract,
or any provision in any contract, to which such BC
Shareholder is a party; or
C. cancel, terminate or modify any Contract to which such
BC Shareholder is a party;
(i) There is no requirement for such BC Shareholder to make any
filing with, give any notice to or to obtain any license, permit,
certificate, registration, authorization, consent or approval of,
any USA or Canadian governmental or regulatory authority as a
condition to the lawful consummation of any of the transactions
contemplated by this Agreement;
(j) Such BC Shareholder is not acquiring the BioLabs Stock referred
to in Section 2.1(b)(ii), 2.1(b)(iii) or 2.1(b)(iv), as
applicable, as part of a transaction or series of transactions
involving further purchases and sales in the course of or
incidental to a distribution of such shares in the province of
British Columbia;
(k) Such BC Shareholder acknowledges that (i) BioLabs Stock to be
issued to such BC Shareholder pursuant to this Agreement has not
been qualified by a prospectus filed under the securities laws of
any jurisdiction or qualified for distribution or registered or
the subject of registration under the Securities Act of 1933, as
amended, of the USA, USA federal securities laws or the laws of
any Canadian province or USA state or other jurisdiction; (ii)
absent exemptions from the registration and prospectus
requirements under the Securities Laws, the issuance or transfer
of securities to be transferred pursuant to this Agreement would
be subject to the prospectus and registration requirements of
such laws; (iii) BioLabs is and will be issuing such securities
in reliance upon exemptions from the registration and prospectus
requirements of such Securities Laws; and (iv)
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reliance by BioLabs is based upon the BC Shareholders'
representations and warranties contained in this Agreement;
(l) Such BC Shareholder understands that no securities commission or
other federal or state or provincial agency or other regulatory
authority (within or outside of Canada or the USA) has made any
finding or determination regarding the fairness of the offer,
sale or issuance of the securities described herein, has made any
recommendation or endorsement of the offer and sale of the
securities described herein or has reviewed or passed in any way
upon this Agreement or passed upon the merits of the securities
described herein;
(m) Such BC Shareholder acknowledges that (i) the BioLabs Stock to be
acquired by such BC Shareholder will be subject to resale
restrictions under applicable Securities Laws including statutory
hold periods, which in respect of the hold period imposed
pursuant to the applicable Securities Laws of the Province of
British Columbia, may never expire, and such BC Shareholder
agrees to comply with such restrictions, (ii) such BC Shareholder
has been independently advised by his or her own legal advisors
with respect to the restrictions which are applicable with
respect to trading in the securities and the fact that the BC
Shareholder will not be able to trade in such securities except
in accordance with certain limited exemptions under applicable
Securities Laws and understands such restrictions and
acknowledges that such BC Shareholder is solely responsible (and
BioLabs is not in any manner responsible) for complying with all
such Securities Laws and such resale restrictions and that
BioLabs makes no representation or warranty regarding such resale
restrictions or whether any exemption may be available under such
applicable Securities Laws to permit such BC Shareholder to
resell or transfer any BioLabs Stock so acquired and is under no
obligation to register or qualify the securities under any
Securities Laws and that such BC Shareholder has no right to
require such registration or qualification;
(n) Such BC Shareholder acknowledges that the certificates
representing the BioLabs Stock referred to in Section 2.1(b) may
bear such legends as counsel for BioLabs may advise are necessary
or desirable pursuant to applicable Securities Laws, including
legends substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN
ACQUIRED BY THE HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED,
HYPOTHECATED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
AS MAY BE AUTHORIZED UNDER THE SECURITIES ACT OF 1933, AND THE
RULES AND REGULATIONS PROMULGATED THEREUNDER.
(o) Such BC Shareholder is a person who is ordinarily resident in
British Columbia and, in respect of the BioTherapies Stock held
by such BC Shareholder, such BioTherapies Stock is registered in
the name of such BC Shareholder on the
Purchase & Sale Agreement 13
<PAGE>
books of BioTherapies and the last address of such BC Shareholder
as shown on the books of BioTherapies is in British Columbia; and
(p) Such BC Shareholder is an "ACCREDITED INVESTOR" as that term is
defined in Rule 501 promulgated under the U.S. Securities Act of
1933, as amended.
ARTICLE 6: BIOLABS' REPRESENTATIONS AND WARRANTIES
6.1 BioLabs warrants and represents to DynaMed and the BC Shareholders the
following:
(a) BioLabs is a corporation duly organized and validly existing and
in good standing under the laws of New York State in the USA with
the corporate power to own its assets and to carry on its
business and has made all necessary filings under all applicable
corporate, securities, and taxation laws or any other laws to
which BioLabs is subject;
(b) Neither the entering into nor the delivery of this Agreement nor
the completion of the transactions contemplated hereby by BioLabs
will result in the violation of any of the provisions of the
constating documents of BioLabs, or any agreement or other
instrument to which BioLabs is a party or by which BioLabs is
bound which will not be terminated as of the Closing Date, or any
applicable law, rule or regulation;
(c) BioLabs is the legal and registered and beneficial owner of and
has good and marketable title to all of the shares, assets and
rights which are being transferred by BioLabs pursuant to this
Agreement, specifically, the ID Certify Stock and the ID Certify
Warrant, free and clear of any claims, liens, charges or other
encumbrances whatsoever, except as specifically and otherwise set
forth herein;
(d) BioLabs has complied with all laws, rules and regulations of any
state, federal or local government, and is in good standing in
each jurisdiction where BioLabs or the location of its assets
requires such qualification;
(e) There is no Contract, option, or any other right of another
binding upon or which at any time in the future may become
binding upon BioLabs to sell, transfer, assign, pledge, charge,
mortgage or in any other way dispose of or encumber any of the
BioLabs Stock or the ID Certify Stock or the ID Certify Warrant,
other than pursuant to the provisions of this Agreement;
(f) The BioLabs Stock, the ID Certify Stock and the ID Certify
Warrant, in all respects, have each been offered, issued, sold
and delivered by BioLabs to DynaMed or the BC Shareholders (as
applicable) in compliance with all applicable federal, state and
provincial securities laws in the USA and Canada;
(g) Upon completion of the Closing, DynaMed and the BC Shareholders
(as applicable) will be the legal and registered owner of the
BioLabs Stock and have
Purchase & Sale Agreement 14
<PAGE>
full right to become the legal and registered owner of the ID
Certify Stock and the ID Certify Warrant and will have good and
marketable title to the BioLabs Stock, the ID Certify Stock and
the ID Certify Warrant free and clear of all pre-emptive rights,
mortgages, liens, charges, security interests, adverse claims,
pledges and demands whatsoever arising by reason of the acts or
omissions of BioLabs, other than the restrictions on transfer
imposed by applicable USA or Canadian securities laws;
(h) Neither the sale nor issuance of the BioLabs Stock, nor the sale
and transfer of the ID Certify Stock and the ID Certify Warrant
will:
(i) contravene, conflict with or result in a violation or breach
of, or result in a default under, any provision of any
Contract to which BioLabs is a party or by which it or its
property is bound; nor
(ii) give any Person the right to:
A. declare a default or exercise any remedy under any
Contract to which BioLabs is a party;
B. accelerate the maturity or performance of any Contract,
or any provision in any Contract, to which BioLabs is a
party; or
C. cancel, terminate or modify any Contract to which
BioLabs is party;
(i) All action on the part of BioLabs and its directors and
shareholders necessary for the allotment, issuance and delivery
of the BioLabs Stock, and the transfer and delivery of the ID
Certify Stock and the ID Certify Warrant to DynaMed has been
taken, except for actions which are not required to be taken
until after the Closing Date; and
(j) There is no requirement for BioLabs to make any filing with, give
any notice to or to obtain any license, permit, certificate,
registration, authorization, consent or approval of, any USA or
Canadian governmental or regulatory authority as a condition to
the lawful consummation of the transactions contemplated by this
Agreement other than those already obtained by BioLabs or which
are not required until after the Closing Date.
ARTICLE 7: SURVIVAL OF REPRESENTATIONS AND WARRANTIES
7.1 The representations and warranties set forth in this Agreement shall
survive the completion of the Closing and transfer of all shares and interests
herein provided and, notwithstanding such completion, shall continue in full
force and effect in accordance with the terms thereof for a period of three (3)
years from the Closing Date.
Purchase & Sale Agreement 15
<PAGE>
ARTICLE 8: LEGAL AND TAX IMPLICATIONS
8.1 Each party shall be responsible for reviewing the legal, accounting
and tax implications with professional advisors of their choice regarding the
impact this transaction will have on them. BioLabs does not assume and shall not
be liable for any Taxes whatsoever which may be or become payable by DynaMed or
any of the BC Shareholders with respect to the income, business, properties and
activities of DynaMed or BioMed or the BC Shareholders up to and including the
Closing Date, including, without limitation, any Taxes resulting from or arising
as a consequence of the transfer to BioLabs of the BioTherapies Stock or the
BioMed Interest. DynaMed and the BC Shareholders do not assume and shall not be
liable for any Taxes whatsoever which may be or become payable by BioLabs with
respect to the income, business, properties and activities of BioLabs up to and
including the Closing Date, including, without limitation, any Taxes resulting
from or arising as a consequence of the issuance of the BioLabs Stock to DynaMed
or the BC Shareholders or the transfer of the ID Certify Stock or ID Certify
Warrants to DynaMed. Each party specifically stipulates they have been
represented in the negotiations for and in preparation of this Agreement by
counsel of their own choosing. The parties have read this Agreement and have had
it fully explained to them.
8.2 For the purposes of the representations and warranties contained in
Article 4, whenever the expression "TO THE BEST OF THE KNOWLEDGE" is used, it
means to the best of the knowledge of the applicable party after making due
inquiry concerning the factual matter in question.
ARTICLE 9: INDEMNIFICATION
9.1 Each party (the "INDEMNIFYING PARTY") shall indemnify, defend and hold
harmless each of the other parties, its subsidiaries, officers, directors,
employees, consultants, attorneys, insurers, affiliates, and controlling persons
(collectively, the "INDEMNIFIED PARTIES") from and against any and all loss,
damage, expense (including, without limitation, court costs, interest,
penalties, reasonable legal fees and expenses), suit, action, claim, liability
or obligation (collectively, "LOSSES") related to, caused by or arising from the
Indemnifying Party's misrepresentation, breach of warranty or failure to fulfill
any covenant or agreement contained in this Agreement or any agreement ancillary
hereto.
ARTICLE 10: GOVERNING LAW AND VENUE
10.1 This Agreement shall be construed in accordance with and governed by
the laws of the Province of British Columbia and the laws of Canada in force
therein without regard for conflict of law rules. All parties agree that by
executing this Agreement they have attorned to the jurisdiction of the Supreme
Court of British Columbia, and that subject to Article 11, the British Columbia
Supreme Court shall have exclusive jurisdiction over this Agreement.
Purchase & Sale Agreement 16
<PAGE>
ARTICLE 11: ARBITRATION
11.1 In the event of any dispute arising between the parties concerning
this Agreement, its enforceability or the interpretation thereof (the
"DISAGREEMENT"):
(a) the parties shall refer the Disagreement for resolution by the
individual parties and, in the case of BioLabs and DynaMed, their
respective Chief Executive Officers, or their nominees;
(b) if the Disagreement is not resolved pursuant to Section 11.1(a)
within thirty (30) days (or such longer period as may be agreed
upon between the parties), a mediator shall be appointed by the
parties who shall assist the parties in resolving the
Disagreement;
(c) if the Disagreement is not resolved under Section 11.1(b) within
thirty (30) days (or such longer period as may be agreed upon
between the parties), upon giving written notice to arbitrate to
the other parties, which written notice shall identify and
describe the nature of the Disagreement, any party may refer the
Disagreement to be finally settled by a single arbitrator;
(d) the arbitrator shall immediately proceed to hear and determine
the Disagreement. The parties agree that it is important that all
Disagreements be resolved promptly and the parties therefore
agree that the arbitration shall be required to be conducted
expeditiously and that the final disposition shall be
accomplished within two (2) weeks. The parties shall ensure that
the arbitrator, upon accepting the nomination, shall agree that
the arbitrator has time available for the timely handling of the
arbitration in order to achieve final disposition within two (2)
weeks;
(e) the decision of the arbitrator shall be rendered in writing,
without reasons and shall be promptly served upon all parties and
the decision of the arbitrator shall be binding upon the parties;
(f) in the event of the death, resignation, incapacity, neglect or
refusal to act of the arbitrator, and if the neglect or refusal
continues for a period of five (5) days after notice in writing
of such has been given by any party, another arbitrator shall be
nominated to replace the arbitrator;
(g) the costs of the arbitration shall be in the discretion of the
arbitrator, and shall be borne by each party in accordance with
the decision of the arbitrator; and
(h) except as to matters otherwise provided herein, the arbitration
shall be conducted in accordance with the COMMERCIAL ARBITRATION
ACT of British Columbia or any successor legislation then in
force and the place of arbitration shall be Vancouver, British
Columbia.
Purchase & Sale Agreement 17
<PAGE>
11.2 Notwithstanding Section 11.1, this Article shall not prevent a party
hereto from applying to a court of competent jurisdiction for interim protection
such as, by way of example, an interim injunction.
ARTICLE 12: GENERAL PROVISIONS
12.1 BENEFIT OF THE AGREEMENT. This Agreement shall be binding upon,
enure to the benefit of, and be enforceable by and against the respective
heirs, executors, administrators, successors and permitted assigns of the
parties hereto.
12.2 FURTHER ASSURANCES. Each of the parties hereto shall from time to
time execute and deliver all such further documents and instruments and do all
acts and things as the other party may, either before or after the date of
execution of this Agreement, reasonably require to effectively carry out or
better evidence or perfect the full intent and meaning of this Agreement.
12.3 NOTICES. All notices, demands, consents, approvals or other
communications hereunder shall be in writing and shall be deemed to have been
given when the same are: (i) sent by certified or registered mail, postage
prepaid or (ii) delivered personally, in each case, to the parties at their
respective addresses as set forth below or to such other individual or at such
other addresses as such parties may designate by notice to the other parties to
this Agreement.
If to DynaMed: 113 Second St., Suite 102
Wenatchee, WA
98801
Attention: Roland E. "Sandy" Wheeler
If to BioLabs: Suite 1A, 3033 King George Highway
Surrey, BC
V4P 1B8
Attention: Mr. Greg McCartney, CEO
If to Dyakowski: 4474 West 3rd Avenue
Vancouver, BC
V6R 1N1
Attention: Antony Dyakowski
If to Guglielmi: 2929 West 24th Avenue
Vancouver, BC
V6C 1R7
Attention: Elio Guglielmi
Purchase & Sale Agreement 18
<PAGE>
If to O'Farrell
and Soon: PH 3 950 Bidwell Street
Vancouver, BC
V6G 2J9
Attention: Kevin O'Farrell and Roberta Soon
12.4 INDEPENDENT LEGAL ADVICE. Each party to this Agreement acknowledges
and agrees that said party has had the opportunity to consult legal counsel in
regard to this Agreement, that said party is fully aware of its legal effect,
that McCarthy Tetrault has acted as counsel only to BioLabs and that Davis,
Arneil Law Firm, LLP has acted only for DynaMed, and that neither of the
aforementioned legal firms are protecting the rights and interests of any other
party to this Agreement.
12.5 ASSIGNMENT. None of the parties to this Agreement may assign any of
their rights or delegate any of the obligations specified in this Agreement
without the prior written consent of the other parties hereto.
12.6 ENTIRE AGREEMENT. The Appendices to this Agreement, together with the
terms and conditions within this Agreement constitute the entire and whole
agreement between the parties hereto relating to the subject matter hereof, and
supercedes any prior understandings and agreements between the parties hereto
with respect thereto. The Appendices will be binding upon the parties hereto
except to the extent that they may conflict with the terms and conditions
contained within this Agreement itself, in which case the terms and conditions
of this Agreement will govern. There are no representations, warranties, terms,
conditions, undertakings or collateral agreements, express, implied or
statutory, between the parties other than as expressly set forth in this
Agreement.
12.7 AMENDMENT. This Agreement may not be modified or amended except by a
written instrument signed by each of the parties.
12.8 WAIVER. No failure on the part of any party hereto to exercise, and
no delay in exercising, any right, power, or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power, or
remedy hereunder preclude any further exercise thereof or the exercise of any
other right, power or remedy.
12.9 SEVERABILITY. In the event that any of the provisions or portions of
any provision of this Agreement is/are held to be unenforceable or invalid by
any court of competent jurisdiction, the remaining portion(s) of any such
provision and the remaining provisions shall remain in effect.
12.10 CONSTRUCTION. The parties acknowledge that each party and their
counsel have had the opportunity to review and negotiate the terms and
conditions of this Agreement, and that the normal rule of construction to the
effect that any ambiguities are to be construed against the drafting party shall
not be employed in the interpretation of this Agreement or any Appendices or
amendments hereto.
12.11 OBLIGATIONS OF O'FARRELL AND SOON. The warranties, representations
and covenants of O'Farrell and Soon in this Agreement are joint and several.
Purchase & Sale Agreement 19
<PAGE>
12.12 COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed
in several counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument. All of the counterpart
signature pages shall be read as though one, and they shall have the same force
and effect as though all of the signors had signed a single signature page.
Facsimile signatures are binding on the party providing the facsimile signature.
IN WITNESS WHEREOF, duly-authorized signatories of all parties hereto have each
caused this agreement to be executed as of the Closing Date.
DYNAMED, INC., a Washington corporation,
By /s/ ROLAND E. WHEELER
-------------------------
_________________________, its President
BIOLABS, INC., a New York corporation,
By /s/ E. GREG MCCARTNEY
-------------------------
_________________________, its Board Chair
Purchase & Sale Agreement 20
<PAGE>
SIGNED, SEALED AND DELIVERED by )
ANTONY DYAKOWSKI, in the presence of: )
)
)
)
/s/ Antony Dyakowski )
----------------------------------------- )
Signature )
)
_________________________________________ )
Print Name )
)
)
_________________________________________ )
Title )
SIGNED, SEALED AND DELIVERED by )
ELIO GUGLIELMI, in the presence of: )
)
)
/s/ Elio Guglielmi )
----------------------------------------- )
Signature )
)
_________________________________________ )
Print Name )
)
)
_________________________________________ )
Title )
SIGNED, SEALED AND DELIVERED by )
KEVIN O'FARRELL, in the presence of: )
)
)
)
)
/s/ Kevin O'Farrell )
----------------------------------------- )
Signature )
)
_________________________________________ )
Print Name )
)
)
_________________________________________ )
Title )
Purchase & Sale Agreement 21
<PAGE>
SIGNED, SEALED AND DELIVERED by )
ROBERTA SOON, in the presence of: )
)
)
)
)
/s/ Roberta Soon )
----------------------------------------- )
Signature )
)
_________________________________________ )
Print Name )
)
)
_________________________________________ )
Title )
Purchase & Sale Agreement 22
