ASSET PURCHASE AGREEMENT
THIS AGREEMENT effective as of October
12, 2007.
BETWEEN:
OXON LIFE SCIENCE LIMITED. , a company
incorporated pursuant to the laws of Nevis, BritishWest Indies and
having an address at Donegan, Zetlands, Nevis, St Kitts &
Nevis, West Indies
(the “ Seller ”)
AND:
INFRABLUE (US) INC., a company
incorporated pursuant to the laws of the State of Nevada and having
a business address at Suite 3.19, 130 Shaftesbury Avenue, London,
England W1D 5EV
(the “ Buyer ”)
AND:
NEXTGEN BIOSCIENCE INC., a company
incorporated pursuant to the laws of the State of Nevada and having
a business address at Suite 3.19, 130 Shaftesbury Avenue, London,
England W1D 5EV
(“ Holdco ”)
WHEREAS:
A.
The Seller is the owner of certain assets and undertakings
relating to the development of therapies for the treatment of
certain types of cancer;
B. The
Buyer and Holdco desire to purchase from the Seller and the Seller
desires to sell and assign to the Buyer and Holdco certain
intellectual property assets of the Seller in exchange for shares
of the Buyer on the terms and subject to the conditions of this
Agreement; and
C.
In contemplation of the execution of this Agreement, the Seller has
filed patent applications relating to the intellectual property
assets contemplated hereby with the European Patent Office in the
name of Holdco.
NOW THEREFORE , in consideration of the
mutual promises of the parties hereto, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually agreed by and between the parties
hereto as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
Definitions
1.1
In this Agreement, including the recitals and schedules, the
following words and phrases have the following meanings:
(a)
“ Affiliate ” in respect of a Person, means any
other Person that, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common
control with, such first Person where “control” means,
with respect to the relationship between or among two or more
Persons, the possession, directly or indirectly or as trustee,
personal representative or executor, of the power to direct or
cause the direction of the affairs or management of a Person,
whether through the ownership of voting securities, as trustee,
personal representative or executor, by contract, credit
arrangement or otherwise, including, without limitation, the
ownership, directly or indirectly, of securities having the power
to elect a majority of the board of directors or similar body
governing the affairs of such Person;
(b)
“ Assets ” means all property and assets set
forth in Schedule A hereto, which property and assets include,
without limitation, the Contracts, the Intellectual Property and
the Permits and Licenses;
(c)
“ Business Day ” means any day other than a
Saturday, Sunday or public holiday in London, England;
(d)
“ Closing ” means the completion of the purchase
and sale of the Assets on the terms and subject to the conditions
contained in this Agreement by the Buyer and the Seller
respectively;
(e)
“ Closing Date ” means the 12 th day
of November, 2007, or such other day as agreed to in writing
between the Parties on which the Closing is to occur;
(f)
“ Consents and Approvals ” means all necessary
consents and approvals required to be obtained in connection with
the execution and delivery by the Seller of this Agreement and the
consummation of the transactions described herein, as listed in the
Disclosure Schedule;
(g)
“Contracts” means all agreements and contracts
to which the Seller is party that relate to the ownership or use of
the Assets by the Seller, including without limitation those
contracts and agreements set forth in Schedule A;
(h)
“ Disclosure Schedule ” means the disclosure
schedule attached as Schedule B hereto. The Disclosure Schedule
will be arranged in sections corresponding to the numbered and
lettered sections contained in this Agreement and the disclosure in
any section qualifies other sections in this Agreement only to the
extent that such disclosure specifically references the fact that
it also qualifies or applies to such other specified sections;
(i)
“ Encumbrance ” means any lien, claim, charge,
pledge, hypothecation, security interest, mortgage, title retention
agreement, option, assignment, license or other encumbrance or
adverse claim of any nature or kind whatsoever;
(j)
“ Exchange Act ” means the United States
Securities Exchange Act of 1934, as amended;
(k)
“ Intellectual Property ” means all rights in
and to patents and patent applications, registered or unregistered
trademarks, service marks, and trademark or service mark
registrations and applications, trade names, logos, designs,
Internet domain names, slogans and general intangibles of like
nature, together with all goodwill relating to the foregoing,
copyrights, copyright registrations, renewals and applications,
Software, licenses, agreements and all other proprietary rights,
which relate to the Assets;
(l)
“Name Change” means the name change of the Buyer
to “NextGen Bioscience Inc.”;
(m)
“ Party ” means each party to this Agreement
individually and “ Parties ” mean each Party
collectively;
(n)
“Permits and Licenses” means all rights of the
Seller with respect to permits, approvals, orders, authorizations,
consents, licenses, certificates and all pending applications
therefor, which have been issued or granted to, or are owned or
used by, the Seller in connection with the ownership or use of the
Assets;
(o)
“Person” is to be broadly interpreted and
includes an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust,
a joint venture, an unincorporated organization or association, or
a Governmental Entity;
(p)
“Purchase Price” means the Shares of the Buyer
to be issued to the Seller at Closing in consideration for the
purchase of the Assets;
(q)
“ Purchaser’s Solicitors ” means Lang
Michener LLP;
(r)
“Schedule 14F-1 Information Statement” means an
information statement to prepared by the Buyer in accordance with
Rule 14f(1) of the Exchange Act in connection with the change in
the majority of the Buyer’s board of directors contemplated
by this Agreement;
(s)
“ SEC ” means the United States Securities and
Exchange Commission; (t) “ Securities Act ”
means the United States Securities Act of 1933, as amended; (u)
“Shares” means 3,500,000 shares of the
Buyer’s Common Stock;
(v)
“Stock Split” a forward split of the
Buyer’s outstanding common stock on a four new shares for one
old shares basis, which forward split will include a corresponding
increase to the authorized capital of the Buyer, each in accordance
with Section 78.207 of Chapter 78 of the Nevada Revised
Statutes.
Schedules
1.2
The following schedules are attached to, form part of, and are
hereby incorporated by reference into this Agreement:
Schedule A –
Description of Assets
Schedule B –
Disclosure Schedule
Schedule C –
Assignment of Intellectual Property
ARTICLE 2
SALE AND TRANSFER OF ASSETS; CLOSING
2.1
Sale of Assets. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations, warranties,
covenants and agreements contained herein, at the Closing, the
Seller shall sell, convey, assign and transfer the Assets to the
Buyer and Holdco, and the Buyer and Holdco shall purchase the
Assets from the Seller.
2.2
Consideration. In consideration of the sale, transfer and
assignment to the Buyer of the Assets, at the Closing, the Buyer
shall issue and deliver to the Seller the Shares, which Shares
shall be subject to any increase or decrease in the Buyer’s
share capital prior to Closing as a result of any subdivision or
consolidation of the Buyer’s share capital, including
pursuant to the Stock Split.
2.3
The Closing. The Closing shall take place on the Closing
Date at the offices of the Buyer or such other place as the parties
may agree in writing.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE
SELLER
To induce the Buyer to execute, deliver and
perform this Agreement, and in acknowledgement of the Buyer’s
reliance on the following representations and warranties (in
addition to any other representations and warranties included in
this Agreement), the Seller represents and warrants to the Buyer as
follows as of the date hereof and as of the Closing Date:
3.1
Organization. The Seller is a corporation duly organized,
validly existing and in good standing under the applicable laws of
Nevis, West Indies with the power and authority to conduct its
business as it is now being conducted and to own its assets.
3.2
Power and Authority. The Seller has the power and authority
to execute, deliver, and carry out its obligations under the
Agreement and any other agreements and instruments to be executed
and delivered by it in connection with the transactions
contemplated hereby, and the Seller has taken all necessary action
to authorize the execution and delivery of this Agreement and such
other agreements and instruments and the consummation of the
transactions contemplated hereby, including but not limited to the
receipt of all necessary regulatory approvals. This Agreement is,
and the other agreements and instruments to be executed and
delivered by the Seller in connection with the transactions
contemplated hereby, when such other agreements and instruments are
executed and delivered, shall be the valid and legally binding
obligations of the Seller enforceable against the Seller in
accordance with their respective terms.
3.3
Title to Assets. The Seller is the owner of all of the
Assets free and clear of any and all Encumbrances. Without limiting
the generality of the foregoing, neither the Seller’s
Affiliates, consultants or clients, nor any employees of the
Seller, own or possess any of the Assets (including, without
limitation, any Intellectual Property) or any legal or beneficial
interest in the Assets.
3.4
No Rights to Purchase Assets. There is no agreement,
contract, option, commitment or other right in favour of, or held
by, any person for the purchase of the Assets or any interest
therein from the Seller.
3.5
No Conflict. Neither the execution and delivery of this
Agreement and the other agreements and instruments to be executed
and delivered in connection with the transactions contemplated
hereby, nor the consummation of the transactions contemplated
hereby, will violate or conflict with:
(a) any
law, regulation, ordinance, governmental restriction, order,
judgment or decree applicable to the Seller;
(b) any
provision of any charter, bylaw or other governing or
organizational instrument of the Seller; or
(c) any
mortgage, indenture, license, instrument, trust, contract,
agreement, or other commitment or arrangement to which the Seller
is a party or by which the Seller is bound.
3.6
Litigation. There are no actions, suits, claims,
applications, complaints or investigations, directive, or notice of
defect or non-compliance in any court or before any arbitrator or
before or by any regulatory body, board, tribunal, administrative
licensing or regulatory agency, body or office, or governmental
department or governmental or non-governmental body issued or
pending or, to the Seller’s knowledge, threatened by or
against the Seller, or related to its business, the Assets or
affecting the business or the operations of the business or the
transactions contemplated by this Agreement and to the
Seller’s knowledge there is not factual or legal basis which
could give rise to any such actions, suit, proceeding, claim,
application, complaint, investigation, directive or notice of
defect or non-compliance.
3.7
Material Contracts . With respect to Contracts the Seller
warrants and represents that there are no Contracts in
existence.
3.8
Required Consents. No permit, approval, authorization,
consent, permission, or waiver to or from any person, or notice,
filing, or recording to or with, any person is necessary for:
(a) the
execution and delivery by the Seller of this Agreement and the
other agreements and instruments to be executed and delivered by
the Seller in connection with the transactions contemplated hereby,
or the consummation by the Seller of the transactions contemplated
hereby; or
(b) the
transfer to and ownership and use of the Assets by the Buyer.
3.9
Intellectual Property.
(a) The
Seller owns or has the valid right to use all of its Intellectual
Property.
(b) The
Intellectual Property owned or used by the Seller is free and clear
of all liens, charges, Encumbrances or other restrictions on
transfer. The Seller is registered with all applicable governmental
agencies as the sole owner of record for each application and
registration listed on Schedule A. The Seller is the registered
owner of such Internet domain names listed on Schedule A and where
applicable has a currently valid registration of such domain
names.
(c) The
Seller owns no trademarks or software related to the Assets in any
form. The patent registrations listed in Schedule A are valid and
subsisting, in full force and effect, and have not been cancelled,
expired, or abandoned. There is no pending or threatened
opposition, interference or cancellation proceeding before any
court or registration authority in any
jurisdiction against
such registrations or against any of the Intellectual Property
licensed to the Seller pursuant to the License Agreements (as
defined in the next paragraph).
(d)
Schedule A attached hereto sets forth a complete and accurate list
of all agreements pertaining to the use of, or granting any right
to use or practice any rights under, the Intellectual Property,
whether the Seller is the licensee, licensor or user thereunder and
whether written, oral, express or implied, and any written
settlements or consents relating to any Intellectual Property and
covenants not to sue (collectively, the “License
Agreements”), indicating for each the title, the parties,
date executed, and the Intellectual Property covered thereby.
Except as set forth in Schedule B, there are no settlements,
consents, judgments, or orders or other agreements which restrict
any of the Seller’s rights to use any of the Intellectual
Property or permit third parties to use any Intellectual Property
which would otherwise infringe any of the Seller’s
Intellectual Property.
(e) To
the best of the Seller’s knowledge, no third party is
misappropriating, infringing, diluting, or violating any of the
Intellectual Property owned by, assigned or licensed to the Seller,
and no such claims are pending against a third party by the
Seller.
3.10
Investor Representations. The Seller acknowledges and agrees
that the Shares will be offered and sold to the Seller without
being registered under the Securities Act and will be issued to the
Seller in accordance with Rule 903 of Regulation S of the
Securities Act in an “ offshore transaction ”
within the meaning of Regulation S based on the representations and
warranties of the Seller in this Agreement. As such, the Seller
further acknowledges and agrees that all Shares will, upon
issuance, be “ restricted securities ” within
the meaning of the Securities Act.
3.11
Agreement Regarding Resale. The Seller agrees to resell the
Shares only in accordance with the provisions of Regulation S of
the Securities Act, pursuant to registration under the Securities
Act, or pursuant to an available exemption from registration
pursuant to the Securities Act, and otherwise in accordance with
all applicable state securities laws and the laws of any other
jurisdiction. The Seller agrees that the Buyer may require the
opinion of legal counsel reasonably acceptable to the Buyer in the
event of any offer, sale, pledge or transfer of any of the Shares
by the Seller pursuant to an exemption from registration under the
Securities Act.
3.12
Prohibition Against Hedging Transactions. The Seller agrees
not to engage in hedging transactions with regard to the Shares
unless in compliance with the Securities Act.
3.13
Right of Company to Refuse Transfer. The Seller agrees that
the Buyer will refuse to register any transfer of the Shares not
made in accordance with the provisions of Regulation S of the
Securities Act, pursuant to registration under the Securities Act,
pursuant to an available exemption from registration, or otherwise
pursuant to this Agreement.
3.14
No Obligation to Register. The Seller acknowledges that the
Buyer has not agreed and has no obligation to register the resale
of the Shares under the Securities Act.
3.15
Share Certificates. The Seller acknowledges and agrees that
any and all certificates representing the Shares will be endorsed
with the following legend pursuant to Regulation S of the
Securities Act or such similar legend as deemed advisable by legal
counsel for the Buyer to ensure compliance with Regulation S of the
Securities Act and to reflect the status of the Shares as
restricted securities:
“THE SECURITIES REPRESENTED HEREBY HAVE
NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES
ACT”) OR UNDER THE STATE SECURITIES LAWS OF ANY OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES
FOR THE BENEFIT OF THE CORPORATION THAT SUCH SECURITIES MAY BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION,
(B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF
REGULATIONS UNDER THE U.S. SECURITIES ACT, (C) WITHIN THE UNITED
STATES IN ACCORDANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE
U.S. SECURITIES ACT PROVIDED BY RULES 144 OR 144A THEREUNDER, IF
AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES
LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION
UNDER THE U.S. SECURITIES ACT OR APPLICABLE STATE SECURITIES LAWS,
AND, IN THE CASE OF (C) OR (D) THE SELLER HAS FURNISHED TO THE
CORPORATION AN OPINION TO SUCH EFFECT FROM COUNSEL, OF RECOGNIZED
STANDING REASONABLY SATISFACTORY TO THE CORPORATION PRIOR TO SUCH
OFFER, SALE OR TRANSFER.”
3.16
Issuance of Shares. The Seller further represents and
warrants to the Buyer as follows, and acknowledges that the Buyer
is relying upon such covenants, representations and warranties in
connection with the issue of the Shares to the Seller:
(a) the
Seller is not a “ U.S. Person ” as defined in
Regulation S of the Securities Act and is not acquiring the Shares
for the account or benefit of a U.S. Person;
(b) the
Seller was not in the United States at the time the offer to
purchase the Shares was received or this Agreement was
executed;
(c) The
Seller has not purchased the Shares as a result of any form of
general solicitation or general advertising, including
advertisements, articles, notices or other communications published
in any newspaper, magazine or similar media or broadcast over
radio, television or other form of telecommunications, or any
seminar or meeting whose attendees have been invited by general
solicitation or general advertising;
(d) the
Seller has such knowledge, sophistication and experience in
business and financial matters such that it is capable of
evaluating the merits and risks of the investment in the Shares.
The Seller has evaluated the merits and risks of an investment in
the Shares. The Seller can bear the economic risk of this
investment, and is able to afford a complete loss of this
investment;
(e) the
Seller acknowledges that the Buyer is in the early stages of
development of its business and the Buyer’s success is
subject to a number of significant risks, including the risk that
the Buyer will not be able to finance its plan of operations. The
Seller further acknowledges that (i) the Buyer has limited cash and
working capital, (ii) the Buyer will have to raise additional
capital in order to finance its plan of operations which capital
may be raised by the issue of additional shares of its common stock
which will result in dilution to the Seller, and (iii) the Buyer
has no arrangements for any financing in place and there is no
assurance that any financing will be completed;
(f) the
Shares will be acquired by the Seller for investment for the
Seller's own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and that
the Seller has no present intention of selling, granting any
participation in, or otherwise distributing the same in the United
States or to any U.S. Person. The Seller does not have any
contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any
third person, with respect to any of the Shares;
(g) the
Seller has been afforded access to information about the Buyer and
the Buyer’s financial condition, results of operations,
business, properties, management and prospects sufficient for it to
evaluate an investment in the Shares. The Seller further represents
that it has had an opportunity to ask questions and receive answers
from representatives of the Buyer regarding the terms and
conditions of the offerings completed by the Buyer and the
business, properties, prospects and financial condition of the
Buyer, each as is necessary to evaluate the merits and risks of
investing in the Shares. The Seller believes it has received all
the information it considers necessary or appropriate for deciding
whether to purchase the Shares. The Seller has had full opportunity
to discuss this information with the Seller’s legal and
financial advisers prior to execution of this Agreement;
(h) the
Seller acknowledges that the Buyer will rely on these
representations in completing the issuance of the Shares to the
Seller;
(i) the
Seller acknowledges that the offering of the Shares by the Buyer
has not been reviewed by the United States Securities and Exchange
Commission or any state securities regulatory authority;
(j)
this Agreement has been duly authorized, validly executed and
delivered by the Seller; and
(k) the
Seller has satisfied itself as to the full observance of the laws
of its jurisdiction in connection with the purchase of the Shares
and the execution of this Agreement, including (i) the legal
requirements within its jurisdiction of incorporation or residence
of the Seller for the purchase of the Shares; (ii) any local or
foreign exchange restrictions applicable to such purchase; (iii)
any governmental or other consents that may need to be obtained;
(iv) the income tax and other tax consequences, if any, that may be
relevant to an investment in the Shares; and (v) any restrictions
on transfer applicable to any disposition of the Shares imposed by
the jurisdiction in which the Seller is incorporated or
resident.
3.17
Disclosure. No representation, warranty, or statement made
by the Seller in this Agreement or in any document or certificate
furnished or to be furnished to the Buyer pursuant to this
Agreement contains or will contain any untrue statement or omits or
will omit to state any fact necessary to make the statements
contained herein or therein not misleading. The Seller has
disclosed to the Buyer all facts known or reasonably available to
the Seller that are material to the use of the Assets.
3.18
Truth at Closing. All of the representations, warranties and
agreements made by the Seller contained in this Agreement shall be
true and correct and in full force and effect as of the date hereof
and as of the Closing Date.
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