CombinatoRx,
Incorporated as
Vendor
Biomedical
Sciences Investment Fund Pte Ltd as
Purchaser
CombinatoRx
(Singapore) Pte. Ltd. as
Company
SHARE PURCHASE
AGREEMENT
relating to the
sale and purchase
of all the
issued ordinary shares in the capital of
CombinatoRx
(Singapore) Pte. Ltd.
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TABLE OF
CONTENTS
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Contents
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Page
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1.
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INTERPRETATION
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2
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2.
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SALE AND
PURCHASE OF SALE SHARES
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6
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3.
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COMPLETION
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6
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4.
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TERMINATION OF
SINGAPORE TERMINATING AGREEMENTS / AMENDING
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AND RESTATING
THE NOTE CONDITIONS
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8
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5.
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RESTRICTIONS ON
THE VENDOR
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8
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6.
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WARRANTIES
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11
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7.
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ENTIRE
AGREEMENT
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13
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8.
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INDULGENCE,
WAIVER, ETC
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13
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9.
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CONTINUING
EFFECT OF AGREEMENT
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13
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10.
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VARIATION
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13
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11.
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REMEDIES
CUMULATIVE
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13
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12.
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THIRD PARTY
RIGHTS
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14
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13.
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SUCCESSORS AND
ASSIGNS
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14
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14.
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FURTHER
ASSURANCE
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14
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15.
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ANNOUNCEMENTS
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14
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16.
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COSTS
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14
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17.
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SEVERABILITY OF
PROVISIONS
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14
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18.
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NOTICES
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15
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19.
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CONFIDENTIALITY
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15
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20.
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GOVERNING LAW
AND DISPUTE RESOLUTION
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16
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21.
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COUNTERPARTS
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17
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SCHEDULE
1
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18
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SCHEDULE
2
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19
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SCHEDULE
3
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20
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i
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SCHEDULE
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4
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21
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SCHEDULE
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5
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22
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SCHEDULE
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6
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23
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SCHEDULE
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7
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24
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SCHEDULE
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8
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25
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This
Agreement is made on 2
June 2009 between:
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(1)
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COMBINATORX,
INCORPORATED (the “
Vendor ”), a company incorporated in the state of
Delaware, United States of America with its registered office at
245 First Street, Cambridge, Massachusetts, 02142, USA;
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(2)
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BIOMEDICAL
SCIENCES INVESTMENT FUND PTE LTD (the “
Purchaser ”), a company incorporated in Singapore with
its registered office at 250 North Bridge Road, #20-02 Raffles City
Tower Singapore 179101; and
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(3)
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COMBINATORX
(SINGAPORE) PTE. LTD. (the “
Company ”), a company incorporated in Singapore with
its registered office at 11 Biopolis Way #08-05/06 Helios Singapore
138667.
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(A)
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The Company is
a private company incorporated in Singapore under the Companies
Act, Chapter 50. The Company has at the date of this Agreement an
issued share capital of US$2,502,602.041 divided into 2,602,041
Ordinary Shares (as defined below) and 2,500,000 Preference Shares
(as defined below). Further particulars of the Company are set out
in Schedule 1.
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(B)
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The Parties had
entered into various agreements, details of which are set out
below:
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(i)
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a subscription
and shareholders agreement dated 19 August 2005 entered into
between the Parties (the “ Subscription and Shareholders
Agreement ”);
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(ii)
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a swap-up
agreement dated 30 August 2005 entered into between the Parties
(the “ Swap-up Agreement ”);
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(iii)
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a services
agreement dated 19 August 2005 entered into between the Vendor and
the Company (the “ Services Agreement
”);
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(iv)
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a debenture
dated 30 August 2005 entered into between the Company and the
Purchaser (the “ Debenture ”);
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(v)
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a share charge
agreement dated 30 August 2005 entered into between the
Shareholders (the “ Share Charge Agreement
”);
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(vi)
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a registration
rights agreement dated 30 August 2005 entered into between the
Shareholders (the “ Registration Rights Agreement
”);
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(vii)
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a preferred
stock rights agreement dated 30 August 2005 entered into between
inter alia the Shareholders (the “ Preferred Stock
Rights Agreement ”); and
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(viii)
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a parent
subscription agreement dated 18 August 2005 entered into between
the Company and the Vendor (the “ Parent Subscription
Agreement ”).
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(C)
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The Vendor had
also issued to the Purchaser the Warrant (as defined below) on 19
August 2005.
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- 1
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(D)
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The Vendor has
agreed to sell to the Purchaser, and the Purchaser has agreed to
purchase from the Vendor, the Sale Shares (as defined below) on the
terms and subject to the conditions contained in this
Agreement.
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(E)
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Further to the
sale of the Sale Shares from the Vendor to the Purchaser pursuant
to this Agreement, the Parties have agreed to:
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(i)
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terminate their
respective Singapore Terminating Agreements;
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(ii)
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replace the
Note Conditions (as defined below) in its entirety with the New
Note Conditions (as defined below); and
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(iii)
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enter
into:
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(a)
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the
Intellectual Property Assignment Agreement (as defined below);
and
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(b)
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the Transition
Services Agreement (as defined below),
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on and subject
to the terms and conditions herein contained; and
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(iv)
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terminate their
respective US Terminating Agreements, on and subject to the terms
and conditions contained in the Termination Agreement (as defined
below).
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(F)
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The Parties
further acknowledge that it is intended for the following documents
to continue to remain in existence from the Completion
Date:
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(i)
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the Debenture
(which shall be supplemented with the Supplemental Debenture (as
defined below) on the Completion Date);
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(ii)
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the Notes (as
defined below);
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(iii)
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the Note
Certificates (as defined below);
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(iv)
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the Note
Conditions (which shall be replaced in its entirety with the New
Note Conditions on the Completion Date); and
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(v)
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the
Warrant,
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(collectively,
the “ Existing Agreements ”).
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It is
agreed as follows
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1.
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INTERPRETATION
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1.1
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Definitions
:
In this Agreement, unless there is something in the subject or
context inconsistent therewith, the following expressions bear the
following meanings, namely: “ Articles of Association
” means the articles of association for the time being of the
Company;
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“
Audited Accounts ” means the audited accounts of the
Company for the financial period ended on 31 December
2007;
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“
Board of Directors ” means the board of Directors for
the time being of the Company;
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“
Business Day ” means a day (other than a Saturday,
Sunday or public holiday) on which commercial banks are open for
business in Singapore;
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- 2
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“
Company Intellectual Property ” means:
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(i)
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all works of
authorship, data, marks, names, logos or other indicia of origin,
inventions, ideas, processes, methodologies, trade secrets,
know-how and other intellectual property now or hereafter existing,
which are made, created, developed or acquired by the Company;
and
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(ii)
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the Patent
Applications;
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“
Completion ” means completion of the sale and purchase
of the Sale Shares pursuant to Clause 3;
“
Completion Date ” means 2 June 2009 (or such later
Business Day as the Parties may agree in writing);
“
Directors ” means the Directors for the time being of
the Company and “ Director ” means any of
them;
“
Encumbrances ” means any claim, charge, mortgage,
security, lien, option, equity, power of sale, hypothecation or
other third party rights, retention of title, right of pre-emption,
right of first refusal or security interest of any kind, including
but not limited to the Share Charge;
“
GST ” means goods and services tax chargeable under
the GST Act;
“ GST
Act ” means the Goods and Services Tax Act, Chapter 117A
of Singapore;
“
Intellectual Property Assignment Agreement ” means the
intellectual property assignment agreement to be entered into
between the Company and the Vendor, in the form set out in Schedule
2;
“
Losses ” means all losses, liabilities, costs
(including, without limitation, legal costs), charges, expenses,
actions, proceedings, claims and demands;
“
Management Accounts ” means the unaudited management
accounts relating to the Company for the period commencing 1
January 2008 to the Management Accounts Date;
“
Management Accounts Date ” means 31 March
2009;
“ New
Articles of Association ” means the new set of articles
of association to be adopted by the Company in the form set out in
Appendix A;
“ New
Note Conditions ” means the new set of terms and
conditions of the Notes (as from time to time amended, modified or
supplemented) as set out in Appendix B to replace the Note
Conditions in its entirety on the Completion Date and any reference
to a specified New Note Condition shall be construed
accordingly;
- 3
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“ Note
Certificates ” means certificates issued by the Company
certifying that the Purchaser is the holder of the principal amount
of each of the Notes;
“ Note
Conditions ” means the existing terms and conditions of
the Notes as set out in Schedule 5;
“
Notes ” shall mean collectively, the Series 1 Notes,
the Series 2 Notes, the Series 3 Notes, the Series 4 Notes and the
Series 5 Notes;
“
Ordinary Shares ” means the ordinary shares in the
capital of the Company;
“
Patent Applications ” means the U.S. Patent
Applications listed in Schedule 8, any invention claimed therein,
any other patent application directed to any such invention, and
all Letters Patent of the United States that may be granted thereon
and patents and any special protection certificates that issue on
the U.S. Patent Applications listed in Schedule 8, and all
reissues, continuations, continuations-in-part, divisions,
revisions, reexaminations, and extensions thereof; and all rights
to claim priority on the basis of such applications, and all
applications for Letters Patent that have been or may be filed for
any such invention in any foreign country and all Letters Patent
that may be granted on any such invention in any foreign country,
and all extensions, renewals, and reissues thereof, constituting
all patent rights made or developed pursuant to the Services
Agreement that have, pursuant to the provisions thereof, previously
been assigned by the Vendor to the Company;
“
Parties ” means the parties to this Agreement and
“ Party ” means any one of them;
“
Preference Shares ” means the Series A redeemable
convertible cumulative preference shares in the capital of the
Company, having the rights, privileges, preferences and
restrictions set forth in the Articles of Association;
“
Property ” means the leasehold property at 11 Biopolis
Way Helios #08-05/06 Singapore 138667;
“ Sale
Shares ” means 2,602,041 Ordinary Shares to be purchased
by the Purchaser from the Vendor pursuant to this Agreement, being
all the Ordinary Shares in the capital of the Company;
“
Series 1 Notes ” means the US$5,500,000 in aggregate
principle amount of 5% notes due 2009, issued by the Company to the
Purchaser on 30 August 2005;
“
Series 2 Notes ” means the US$3,500,000 in aggregate
principle amount of 5% notes due 2009, issued by the Company to the
Purchaser on 8 June 2006;
“
Series 3 Notes ” means the US$3,500,000 in aggregate
principle amount of 5% notes due 2009, issued by the Company to the
Purchaser on 30 May 2007;
“
Series 4 Notes ” means the US$2,500,000 in aggregate
principle amount of 5% notes due 2009, issued by the Company to the
Purchaser on 4 August 2008;
“
Series 5 Notes ” means the US$2,500,000 in aggregate
principle amount of 5% notes due 2009, issued by the Company to the
Purchaser on 4 August 2008;
- 4
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“
Share Charge ” means the first fixed charge given by
the Vendor over the Sale Shares in favour of the Purchaser pursuant
to the Share Charge Agreement;
“
Shareholders ” means the Purchaser and the
Vendor;
“
Singapore Dollars ” and the sign “ S$
” mean the lawful currency of the Republic of
Singapore;
“
Singapore Terminating Agreements ” means the
Subscription and Shareholders Agreement, the Parent Subscription
Agreement and the Share Charge Agreement;
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“
Stamp Duty Documents ” means:
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(i)
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a letter in the
form prescribed by the Stamp Duty Branch of the Inland Revenue
Authority of Singapore and signed by a director or the secretary of
the Company incorporating a working sheet computing the net asset
value per Sale Share; and/or
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(ii)
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such other
documents as may be prescribed from time to time by the Stamp Duty
Branch of the Inland Revenue Authority of Singapore for the purpose
of assessing the stamp duty payable on a transfer of
shares;
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“
Supplemental Debenture ” means the supplemental
debenture to be entered into between the Company and the Purchaser,
in the form set out in Schedule 7, on the Completion
Date;
“
Taxation ” includes all forms of taxation and
statutory, governmental, state, provincial, local governmental or
municipal impositions, duties, contributions and levies, including
GST and any other form of value-added tax, in each case whether of
Singapore or elsewhere in the world whenever imposed and whether
chargeable directly or primarily against or attributable directly
or primarily to the relevant company or any other person and all
penalties, charges, costs and interest relating thereto;
“
Termination Agreement ” means the termination
agreement to be entered into between the Company, the Vendor and
the Purchaser, in the form set out in Schedule 3, on the Completion
Date to terminate the US Terminating Agreements;
“
Transition Services Agreement ” means the transition
services agreement to be entered into between the Company and the
Vendor, in the form set out in Schedule 4;
“
United State Dollars ” and the sign “
US$” mean the lawful currency of the United States of
America;
“ US
Terminating Agreements ” means the Registration Rights
Agreement, the Swap-Up Agreement and the Services
Agreement;
“
Warrant ” means the Common Stock Purchase Warrant
dated 19 August 2005 issued by the Vendor to the Purchaser on 19
August 2005, such warrant which may be exercised by the holder
thereof to subscribe for 25,000 common stock of the Vendor, in the
form as set out in Schedule 6; and
“
Warranties ” means the representations, warranties and
undertakings on the part of the Vendor contained in this
Agreement.
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1.2
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Miscellaneous
:
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1.2.1
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Except where
the context otherwise requires, words denoting the singular shall
include the plural and vice versa ; words denoting any
gender shall include all genders; words denoting persons shall
include firms and corporations and vice versa .
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1.2.2
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References to
this Agreement include any Recitals and Schedules to it and
references to Clauses, Schedules and Appendices are to the clauses
of, and schedules and appendices to, this Agreement. References to
paragraphs are to paragraphs of the Schedules.
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1.2.3
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Headings are
for convenience only and shall not affect the interpretation of
this Agreement.
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2.
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SALE AND
PURCHASE OF SALE SHARES
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2.1
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Sale and
Purchase of Sale Shares : Subject to
the terms and conditions of this Agreement, the Vendor shall sell,
as legal and beneficial owner, and the Purchaser relying on the
Warranties and other undertakings contained in this Agreement shall
purchase, the Sale Shares, free from all Encumbrances and together
with all rights and advantages now and hereafter attaching thereto
as at Completion.
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2.2
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Waiver of
Moratorium : The Parties
hereby consent to the proposed sale by the Vendor of the Sale
Shares to the Purchaser pursuant to the terms herein,
notwithstanding that the sale of the Sale Shares shall take place
prior to the fourth anniversary of the Initial Closing Date (as
defined in the Subscription and Shareholders Agreement).
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2.3
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Waiver of Share
Buyback : The Company
hereby waives any and all rights of its share buy-back over the
Sale Shares conferred by the Subscription and Shareholders
Agreement and the Articles of Association, for the purposes of the
sale by the Vendor to the Purchaser of the Sale Shares as
contemplated by this Agreement.
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2.4
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Consideration
:
The consideration for the purchase of the Sale Shares to be sold by
the Vendor shall be the sum of US$1.00 payable by the Purchaser to
the Vendor on Completion in accordance with Clause 3.3.
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3.
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COMPLETION
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3.1
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Date and
Place : Subject as
hereinafter provided, Completion shall take place at the registered
office of the Company (or at such other place as the Parties may
agree in writing) on the Completion Date.
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3.2
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Obligations of
the Vendor : On
Completion, the Vendor or the Company shall deliver or make
available to the Purchaser:
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3.2.1
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a duly executed
transfer of the Sale Shares in favour of the Purchaser, accompanied
by:
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(i)
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the share
certificate(s) in respect of the Sale Shares; and
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(ii)
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the Stamp Duty
Documents;
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- 6
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3.2.2
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the written
resignations of each of the directors of the Company and the
alternate directors of the Company except Choo Heng Tong and Ralf
Marius Altmeyer from his office as a director and an alternate
director (as the case may be) to take effect on the Completion
Date, with acknowledgements signed by each of them in a form
satisfactory to the Purchaser to the effect that they have no claim
against the Company for loss of office or otherwise;
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3.2.3
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(for the
Purchaser itself and as agent for the Company) the certificates of
incorporation, corporate seals (if any), cheque books, statutory
and other books of the Company (duly written
up-to-date);
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3.2.4
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all the
financial and accounting books and records of the Company and (for
the Purchaser itself and as agent for the Company) all
documentation relating to the Property;
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3.2.5
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bank statements
of all bank accounts of the Company as at the Completion
Date;
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3.2.6
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copies of
resolutions, duly certified as true copies by a Director, of the
Board of Directors and the Shareholders, under which the Board of
Directors and the Shareholders respectively have (in terms approved
by the Purchaser prior to the Completion Date):
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(i)
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approved the
entry into by the Company of this Agreement, the Termination
Agreement, the Transition Services Agreement, the Intellectual
Property Assignment Agreement, the Supplemental Debenture and the
issue of the New Note Conditions to replace the Note Conditions in
its entirety;
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(ii)
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approved the
registration of the share transfer referred to in Clause 3.2.1,
subject only to it being stamped;
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(iii)
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accepted the
resignations referred to in Clause 3.2.2 and approving the
appointment of Yeo Su Ling as Director of the Company;
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(iv)
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(if so required
by the Purchaser) revoked all existing authorities to bankers in
respect of the operation of the bank accounts of the Company and
giving authority in favour of such persons as the Purchaser may
nominate to operate such accounts;
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(v)
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approved the
adoption of the New Articles of Association, in substitution for
and to the exclusion of the Articles of Association on the
Completion Date; and
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(vi)
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approved the
change of name of the Company to ExCRX Singapore Pte. Ltd. on the
Completion Date.
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3.2.7
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copies of
resolutions, duly certified as tr
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