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MU´s Contract No.: 105-2022-Bur
______________________________
INVESTMENT AGREEMENT
______________________________
regarding
CasInvent Pharma, a.s.
DATED 22 July 2022
by and between
CasInvent Pharma, a.s.
and
Masarykova univerzita
and
i&i Prague, s.r.o.
and
XXXXXX
and
XXXXXX
and
XXXXXX
and
XXXXXX
and
XXXXXX
and
XXXXXX
and
XXXXXX
and
XXXXXX
and
XXXXXX
1. Definitions and Interpretation 5
2. INVESTMENT 11
3. Completion 12
4. POST-completion OBLIGATIONS 13
5. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS 14
6. LIMITATION OF LIABILITY 16
7. Confidentiality 16
8. Term 17
9. Coming into force and effect 18
10. GENERAL PROVISIONS 18
11. Conflict with articles of association and other documents 19
12. Governing law and jurisdiction 19
13. Notices 20
14. COSTS AND EXPENSES 21
15. final provisions 21
Schedule 1 Ownership Structure 23
Schedule 2 RepresentationS and Warranties 24
Schedule 3 AMENDMENT TO THE FRAMEWORK AGREEMENT 32
Schedule 4 amendment to the licence agreement 33
Schedule 5 articles of association 34
Schedule 6 contribution agreement 35
Schedule 7 data room index 36
Schedule 8 subscription agreement 37
Schedule 9 status of patent proceedings of the mu patents 38
Schedule 10 ACCOUNTS 39
investment AGREEMENT SIGNATORIES 40
THIS INVESTMENT AGREEMENT (the “Agreement”) is entered into on 22 July 2022
BY AND BETWEEN:
CasInvent Pharma, a.s., a joint-stock company incorporated and existing under the laws of the Czech Republic, whose registered office is at Komenského náměstí 220/2, 602 00 Brno, Czech Republic, identification number 096 84 221, registered in the Commercial Register maintained by the Regional Court in Brno, File No. B 8460 (“CasInvent” or the “Company”);
and
Masarykova univerzita, a public university established by law and not registered in the Commercial Register, whose registered office is at Žerotínovo nám. 617/9, 601 77 Brno, Czech Republic, identification number 002 16 224 (“Masarykova univerzita” or “Founder 1”);
and
i&i Prague, s.r.o., a limited liability company incorporated and existing under the laws of the Czech Republic, whose registered office is at Flemingovo náměstí 542/2, Dejvice, 160 00 Prague 6, Czech Republic, identification number 060 58 485, registered in the Commercial Register maintained by the Municipal Court in Prague, File No. C 275316 (“i&i Prague” or “Founder 2”);
(Founder 1 and Founder 2 jointly referred to as the “Founders” and each of the Founders individually as an “Founder”)
and
XXXXXX, (“XXXXXX” or “Inventor 1””);
and
XXXXXX (“XXXXXX” or “Inventor 2”);
and
XXXXXX (“XXXXXX” or “Inventor 3”);
(Inventor 1, Inventor 2 and Inventor 3 jointly referred to as the “Inventors” and each of the Inventors individually as the “Inventor”);
and
XXXXXX (“XXXXXX” or “Consultant 1”);
and
XXXXXX (“XXXXXX” or “Consultant 2”);
(Consultant 1 and Consultant 2 jointly referred to as the “Consultants” or each of the Managers individually as the “Consultant”)
and
XXXXXX (“XXXXXX” or “Manager 1”);
and
XXXXXX (“XXXXXX” or “Manager 2”)
(Manager 1 and Manager 2 jointly referred to as the “Managers” or each of the Managers individually as the “Manager”)
and
XXXXXX (“XXXXXX” or “Investor 1”);
and
XXXXXX (“XXXXXX” or “Investor 2”)
(Investor 1 and Investor 2 jointly referred to as the “Investors” or each Investor individually as an the “Investor”);
(Founders, Inventors and Consultants jointly referred to as the “Current Shareholders” and each of the Current Shareholders individually as the “Current Shareholder”; the Current Shareholders, Managers and Investors jointly referred to as the “Shareholders” and each of the Shareholders individually as the “Shareholder”; the Shareholders and the Company jointly referred to as the “Parties” and each of them individually as a “Party”).
PREAMBLE
WHEREAS
The Company is a joint-stock company organized and existing under the laws of the Czech Republic and operates its business especially in the area of developing new therapeutic options, particularly for the treatment of types of leukemia, lymphomas and solid tumours based on the use of proprietary highly selective inhibitors of enzymes belonging to the Casein Kinase 1 (CK1) family (the “Product”).
On the Signing Date prior to Completion, the Company has a registered capital of CZK 4,000,000, which consists of fully paid-up contributions of the Current Shareholders to the Company’s registered capital, a specification of which is provided, together with specification of the shares of the Current Shareholders, in the chart contained in Schedule 1.
The Investors are prepared to provide investment to the Company as follows:
(i) Investor 1 is prepared to invest up to EUR XXXXXX into the Company and become a new shareholder of the Company under the terms and conditions set out in this Agreement; and
(ii) Investor 2 is prepared to invest up to EUR XXXXXX into the Company and become a new shareholder of the Company under the terms and conditions set out in this Agreement
(the “Investment”).
The Parties agreed to enter into this Agreement for the purpose of setting forth the terms and conditions under which (i) the Investors will acquire the shares in the Company and (ii) provide the Investment into the Company.
On the Signing Date, the Parties will enter into a Shareholders’ Agreement setting forth (i) the rules of corporate governance and management of the Company and the internal processes of the Company and (ii) the rights and obligations of the Shareholders as shareholders in the Company towards each other as well as towards the Company (the “Shareholders’ Agreement”).
This Agreement is the “Investment Agreement” as defined in the Shareholders’ Agreement.
NOW, THEREFORE, the Parties mutually agree, as follows:
1. Definitions and Interpretation
1.1 In this Agreement:
ACR means Act no. 340/2015 Coll., Act on Special Conditions for the Effectiveness of Certain Contracts, the Disclosure of These Contracts and the Register of Contracts (Act on the Register of Contracts).
Amendment to the Framework Agreement means an amendment to the Framework Agreement in the wording agreed by the Parties which is attached hereto as Schedule 3;
Amendment to the Licence Agreement means an amendment to the Licence Agreement in the wording agreed by the Parties which is attached hereto as Schedule 4;
Arbitration Court has the meaning given in Clause 12.2;
Articles of Association means the articles of association (in Czech: “stanovy”) of the Company;
BCA means Act No. 90/2012 Coll., the Business Corporations Act, as amended;
Business means any business activities that the Company performs in respect of the Product;
Business Day means a day except for Saturday, Sunday or legal holiday in the Czech Republic, on which banking institutions are closed;
Claim means any claim originating from a breach of the warranties given in Clause 5;
Company’s Bank Account means the Company’s CZK bank account No. 567910208/0300 (ČSOB), BIC: CEKOCZPP, IBAN: CZ04 0300 0000 0003 0311 7062 and EUR bank account No. 303117062/0300 (ČSOB), BIC: CEKOCZPP, IBAN: CZ04 0300 0000 0003 0311 7062, or other bank account(s) the details of which shall be notified by the Company to the Shareholders in writing from time to time;
Completion means execution of the steps required for consummation of the transaction contemplated by this Agreement which shall take place on the Signing Date immediately after signing of this Agreement;
Contribution Agreement means an agreement on provision of the voluntary contribution outside the Company’s registered capital, the form of which is attached hereto as Schedule 6;
Control means the possession of the power to direct or cause the direction of the management and policies of a company (or substantially all the management and policies of such), whether through the majority of the voting rights, through the right to appoint the majority of members of the statutory or supervisory bodies of the legal person, by contract or otherwise;
Current Shareholders means the Founders, Consultants and the Inventors;
Current Shareholders’ Agreement means the shareholders agreement concluded on 12 July 2021 by the Current Shareholders;
Custodian means XXXXXX;
Data Room means the documents included in the virtual data room hosted at casinvent.sharepoint.com from 5 May 2022 until 21 July 2022 as listed in the Data Room Index made available by the Company to the Investors prior to the Signing Date;
Data Room Index means the documents listed in Schedule 7;
Disclosed Information means all written information and documents Fairly Disclosed to the Investors in the Data Room;
Dispute has the meaning given in Clause 12.2;
EFSI has the meaning given in Clause 10.3;
Encumbrance means any mortgage, pledge, lien, encumbrance, charge, or other interest in the nature of a security interest, or any option, right of first refusal, pre-emption right, or other third party interest or encumbrance of any kind, whether contingent or absolute;
Excluded Activities has the meaning given in Clause 7 of Schedule 2;
Fairly Disclosed means with respect to any action or transaction or other matter, disclosed in a context and such detail (and in any event not by reference only) to allow the Investors to identify and assess the nature and scope of such action, transaction or matter and in such a way that would enable identifying that such matter or fact constitutes a breach of any of the representations, warranties and undertakings given to the Investors under this Agreement; in addition in relation to the Disclosed Information, disclosed in such a way that documents and information are fully legible with no deletions and can be identified without material error, supplied complete with all relevant appendices and schedules needed for identification of the relevant issue;
Framework Agreement means the Framework Agreement (in Czech: “Rámcová smlouva”) of 25 May 2021 concluded between Masarykova univerzita and the Company, based on which Masarykova univerzita provides its services to the Company related to pre-clinical development of casein kinase 1 inhibitors, as specified in partial agreements;
Investment has the meaning given in Recital (C);
Intellectual Property Rights means any or all of the following and all statutory and/or common law rights throughout the world in, arising out of, and associated therewith: (i) all patents, patent applications, patent disclosures and other patent rights, (ii) all rights in trade secrets, proprietary and/or confidential information, know-how and technology, including all rights in inventions (whether patentable or not) that provide advantages over competitors who do not know or use the inventions, (iii) all copyrights, copyright registrations and copyright applications, “moral” rights (to the extent assignable under applicable law), “droits d'auteur” and mask work rights, (iv) all trademarks, service marks, trade dress, logos, trade names, and corporate names, and all registrations and applications thereof, (v) all sui generis database rights and other rights in databases and data collections, (vi) all rights in domain names, web addresses and sites and all applications and registrations for domain names, and (vii) any other proprietary rights relating to technology, including all similar, corresponding or equivalent rights to any of the foregoing, including the Licensed IPR;
Lead Organization shall mean organisations and standard setting bodies, including the EU, the United Nations, the International Monetary Fund, the Financial Stability Board, the FATF, the OECD, the Global Forum, G20, Inclusive Framework on BEPS and any successor organisation, as the case may be.
Licence Agreement means the licence agreement concluded between Masarykova univerzita and the Company on 10 December 2020 which relates to the Licensed IPR and to research, development or distribution of any products resulting from CK1 Research (i.e. research or development of casein kinase 1);
Licensed IPR means intellectual property rights that are licensed by Masarykova univerzita to the Company by the Licence Agreement (i.e. MU Patents, MU Background and Improvements, as defined in the Licence Agreement);
Milestones means jointly:
XXXXXX;
New Shares means jointly New Shares 1 and New Shares 2;
New Shares 1 has the meaning given in Clause 3.2(e)(i)(D)i;
New Shares 2 has the meaning given in Clause 3.2(e)(i)(D)ii;
Non-Compliant Jurisdiction shall mean any jurisdiction classified by one or more Lead Organizations for not having made sufficient progress towards satisfactory implementation of EU and/or internationally agreed standards in connection with AML-CFT and/or tax good governance standards, as applicable and includes jurisdictions:
(a) classified by one or more Lead Organizations as “non-compliant”, “partially compliant”, “non-cooperative” or equivalent in connection with the above mentioned international and/or EU standards;
(b) classified by one or more Lead Organizations as presenting ongoing and substantial AML-CFT risks, having repeatedly failed to address and/or remedy (as the case may be) identified strategic deficiencies in its AML-CFT framework and for which call for action on members of the classifying Lead Organization applies; or
(c) listed as non-cooperative jurisdiction for tax purposes by the EU Council Conclusions (Annex I of EU Council Conclusions).
Product has the meaning defined in Recital (A);
Prohibited Situation shall mean in relation to the Company:
(a) being in any of the following situations:
(i) being bankrupt, being subject to insolvency, being wound up, having its affairs administered by a liquidator or by the courts, in this context is in an arrangement with creditors, is having its business activities suspended or a standstill (or equivalent) agreement has been signed with creditors and validated by the competent court when required by the applicable or is in any analogous situation arising from a similar procedure provided for in national legislation or regulations; or
(ii) being subject to a decision on exclusion contained in the early detection and exclusion system database established under Commission Regulation 1302/2008 of 17 December 2008, set up and operated by the European Commission;
and
during the last five (5) years, having been in any of the following situations:
(i) having entered into an arrangement with creditors, in the context of being bankrupt or wound-up or having its affairs administered by a liquidator or by the courts;
(ii) having been the subject of a final judgement or final administrative decision for being in breach of its obligations relating to the payment of taxes or social security contributions in accordance with the applicable law and where such obligations remain unpaid unless a binding arrangement has been established for payment thereof;
(iii) having (or persons having powers of representation, decision-making or control over the relevant entity having) been convicted by a final judgement or a final administrative decision for grave professional misconduct, where such conduct denotes wrongful intent or gross negligence which would affect its ability to perform its obligations under this Agreement or any other legal documents relating to the investment of XXXXXXX, and which is for one of the following reasons:
i. misrepresenting information required for the verification of the absence of grounds for exclusion or the fulfilment of selection criteria or in the performance of a contract or an agreement;
ii. entering into agreements with other persons aimed at distorting competition;
iii. attempting to unduly influence the decision-making process of the contracting authority during the relevant award procedure[footnoteRef:2] (as this term is defined in article 2 the Financial Regulation); [2: Award procedure means a procurement procedure, a grant award procedure, a contest for prizes, or a procedure for the selection of experts or persons or entities implementing the budget pursuant to point (c) of the first subparagraph of Article 62(1) of the Financial Regulation.
]
vi. attempting to obtain confidential information that may confer upon it undue advantages in the relevant award procedure (as this term is defined in article 2 of the Financial Regulation);
v. it (or persons having powers of representation, decision-making or control over the relevant entity) has been the subject of a final judgement for:
a. fraud;
b. corruption;
c. participation in a criminal organisation;
d. money laundering or terrorist financing;
e. terrorist offences or offences linked to terrorist activities, or inciting, aiding, abetting or attempting to commit such offences;
f. child labour and other forms of trafficking in human beings;
provided that, with respect to the Company, the early detection and exclusion system referred to in litera (a) (ii) above shall refer only to the published list of economic operators excluded or subject to financial penalty, contained in the early detection and exclusion system database set up and operated by the Commission (the EDES database available at the official website of the EU).
Registered Capital Contribution 1 has the meaning given in Clause 2.1(a)(i);
Registered Capital Contribution 2 has the meaning given in Clause 2.1(b)(i);
Related Documentation means any related documentation to be entered into among the relevant Parties in accordance with the terms set out in this Agreement, and, as of the date of this Agreement includes the following documents: (i) the Shareholders’ Agreement, (ii) the Articles of Association, and (iii) the respective implementing (corporate) documents envisaged in this Agreement;
Sanctions shall mean any restrictive measures adopted by the European Union pursuant to Article 215 of the Treaty on the Functioning of the European Union.
Sanctioned Persons shall mean any person who is a designated target of Sanctions or is otherwise a subject of Sanctions (including, without limitation, as a result of being (i) wholly or majority owned or otherwise controlled directly or indirectly by any person or entity which is a designated target of Sanctions, or (ii) organized under the laws of, or a citizen or resident of, any country that is subject to general or country-wide Sanctions). For the purpose of this definition, a “person” includes any person, firm, company, corporation, government, state or agency of a state or any association, group, organization (including, without limitation, terrorist organization), trust or partnership (whether or not having separate legal personality) or two or more of the foregoing, or any other entity or body of any description.
Shareholders’ Agreement has the meaning given in Recital (E);
Signing Date has the meaning given in Clause 8.1;
Subscription Agreement means an agreement on the subscription of new shares, the form of which is attached hereto as Schedule 8;
Voluntary Contributions means jointly Voluntary Contribution 1 and Voluntary Contribution 2;
Voluntary Contribution 1 has the meaning given in Clause 2.1(a)(ii);
Voluntary Contribution 2 has the meaning given in Clause 2.1(b)(ii);
Warrantor means a Party giving a representation or warranty under this Agreement.
1.2 In addition to the defined terms specified in Clause 1.1:
(a) if a defined term is used elsewhere in this Agreement, that term shall have the meaning in this Agreement that has been assigned to it in the relevant paragraph of its definition, unless the definition of this defined term implies that its meaning shall apply only to the clause in question or only to some clauses; and
(b) if a capitalised term is used elsewhere in this Agreement and that term is not defined in any provision of this Agreement, that term shall have the meaning assigned to it in the Shareholders’ Agreement, unless expressly provided otherwise in this Agreement.
1.3 The headings and structure of this Agreement do not affect its interpretation.
1.4 Reference to any natural or legal person shall include also reference to its legal successor.
1.5 In this Agreement, unless a contrary intention appears from the context, a reference to a clause, paragraph or schedule is a reference to a clause, sub-clause, paragraph or schedule to this Agreement. Schedules shall form an integral part of this Agreement.
1.6 Any reference, explicit or implied, to a law, code, regulation or other generally binding enactment used in this Agreement (for the purposes of this clause, the enactment) includes references to:
(a) this enactment including all its subsequent changes, amendments, supplements or use under or in connection with any other enactment (before, on or after the date of this Agreement);
(b) any enactment that has been replaced by this enactment (with or without modification); and
(c) any bylaws issued (before, on or after the date of this Agreement) pursuant to this enactment, including all its subsequent changes, amendments, supplements or use described in paragraph (a) above or under any other enactment described in paragraph (b) above.
1.7 In this Agreement, unless a contrary intention appears from the context:
(a) any words denoting persons shall include natural persons, legal persons and unincorporated associations of persons;
(b) words importing only the singular shall include the plural, and vice versa; and
(c) thousands shall be separated by comma (“,”) (for example: ten thousand euros and forty-five cents shall be expressed as “EUR 10,000.45”).
1.8 Unless this Agreement expressly stipulates otherwise, in the event that any amount in one currency is to be converted into another currency to enable a Party to duly perform its obligations under this Agreement, the Parties agree to use an exchange rate announced by the Czech National Bank as at the first Business Day of the calendar month in which such conversion occurs or the rate applied by the bank when paying the relevant amount from the paying party's account to the account of the party receiving the payment.
2. INVESTMENT
2.1 The Investors hereby undertake to provide the Company with the Investment in the total amount of up to EUR XXXXXX in several tranches depending on the particular milestones and under the following conditions:
(a) Investor 1 undertakes to provide an investment in the amount of up to EUR XXXXXX as follows:
(i) partially through an increase of the Company’s registered capital in which case at Completion, Investor 1 will assume an obligation to a new monetary contribution into the registered capital of the Company in the amount of CZK XXXXXX (“Registered Capital Contribution 1”); and
(ii) partially through a voluntary contribution outside the Company’s registered capital in which case at Completion, Investor 1 will assume an obligation to a voluntary contribution into the other equity funds of the Company in the amount of EUR XXXXXX minus the EUR amount paid under Clause 2.1(a)(i) (as calculated pursuant to Clause 1.8) (“Voluntary Contribution 1”) on the basis of execution of the Contribution Agreement;
(b) Investor 2 undertakes to provide an investment in the amount of up to EUR XXXXXX as follows:
(i) partially through an increase of the Company’s registered capital in which case at Completion, Investor 2 will assume an obligation to a new monetary contribution into the registered capital of the Company in the amount of CZK XXXXXX (“Registered Capital Contribution 2” and jointly with Registered Capital Contribution 1 referred to as the “Registered Capital Contributions” or each Registered Capital Contribution individually as a “Registered Capital Contribution”) on the basis of the Agreement on Contribution; and
(ii) partially through a voluntary contribution outside the Company’s registered capital in which case at Completion, Investor 2 will assume an obligation to a voluntary contribution into the other equity funds of the Company in the amount of EUR XXXXXX minus the EUR amount paid under Clause 2.1(b)(i) (as calculated pursuant to Clause 1.8) (“Voluntary Contribution 2”) on the basis of execution of the Contribution Agreement.
(Voluntary Contribution 1 and Voluntary Contribution 2 jointly referred to as the “Voluntary Contributions” or each individually as a “Voluntary Contribution”).
3. Completion
3.1 Completion shall take place on the Signing Date immediately after execution of this Agreement. At Completion, the actions set out in Clause 3.2 shall be taken, in such order as required by law for the validity and effectiveness of the transaction contemplated by this Agreement.
3.2 The following actions shall be taken on the date of the Completion:
The Current Shareholders terminate the Current Shareholders’ Agreement;
Masarykova Univerzita and CasInvent provide a copy of the duly executed Amendment to the Licence Agreement to the Investors;
Masarykova Univerzita and CasInvent provide a copy of the duly executed Amendment to the Framework Agreement to the Investors;
(a) XXXXXX
(b) The General Meeting of the Company with the votes of all Current Shareholders adopts the following resolutions: XXXXXX
(c) Investor 1 and the Company execute the Subscription Agreement on the subscription of New Shares 1;
(d) Investor 2 and the Company execute the Subscription Agreement on the subscription of New Shares 2;
(e) Investor 1 and the Company execute the Contribution Agreement on the provision of Voluntary Contribution 1;
(f) Investor 2 and the Company execute the Contribution Agreement on the provision of Voluntary Contribution 2.
3.3 After Completion and effectiveness of the Registered Capital increase, the ownership structure of the Company shall correspond to the information specified in the chart attached in Schedule 1.
4. POST-completion OBLIGATIONS
4.1 Investor 1 is obliged to pay the issue price for New Shares 1 (consisting in the payment of Registered Capital Contribution 1) by a wire transfer to the Company’s Bank Account within 10 Business Days following Completion.
4.2 Investor 2 is obliged to pay the issue price for New Shares 2 (consisting in the payment of Registered Capital Contribution 2) by a wire transfer to the Company’s Bank Account within 10 Business Days following Completion.
4.3 The Company will within 10 Business Days following the payment of the Registered Capital Contributions, i.e. crediting of the respective amounts to the Company’s Bank Account:
provide to both the Investors a confirmation on the payment of the issue price for the New Shares (consisting in the payment of the Registered Capital Contributions);
carry out the registration of the changes in the Company in the Commercial Register (mainly, the increase of the registered capital and changes in the Company’s board members);
issue and handover to Investor 1 New Shares 1; and
issue and handover to Investor 2 New Shares 2.
4.4 The Investors are obliged to pay the Voluntary Contributions by a wire transfer to the Company’s Bank Account in the following instalments depending on achievement (completion) of the particular milestones by the Company, in each case within 10 Business Days of the relevant conditions being met:
XXXXXXXX
4.5 The Company is obliged to fulfil all the Milestones no later than by XXXXXX. The Company is obliged to notify all members of the Supervisory Board of completion of the Milestones within the deadline stipulated in the first sentence and attach the documents proving this fact to the notification. The Supervisory Board will be authorised and responsible for assessing whether or not the Milestones have been met. The Supervisory Board shall confirm or deny completion of the Milestones within 15 (fifteen) days as of the presentation of relevant documents by the Company and send its decision to the Investors and the Company. In case that the Milestones are not fulfilled by XXXXXX at the latest and such fact is not remedied within 2 (two) months of the expiry of that period, the Investors may (each individually) withdraw (in Czech: “odstoupit”) from this Agreement and relevant Contribution Agreement. In such case the Investors are not obliged to provide any further Voluntary Contributions to the Company.
4.6 XXXXXX as members of the Board of Directors will ensure that the Company complies with the above obligations, including granting consent to the provision of the Contributions on behalf of the Board of Directors, and the Investors are obliged to provide to the Company all necessary cooperation.
5. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
5.1 Each Party represents and warrants to the other Parties that:
XXXXXXXXXXX
5.2 Each Party as a separate debtor declares to the other Parties that each of the representations and warranties given in Clause 5.1 were on the date of this Agreement true, accurate and not misleading as far as their content is concerned, and all the other Parties can rely on these representations and warranties. Each Party, in its own name as a separate debtor, undertakes to compensate the other Parties as separate creditors, for any damage and costs incurred by those Parties as a result or in connection with the fact that any representation and warranty given in Clause 5.1 proves to be untrue, inaccurate or misleading regarding that Party and irrespective of the fact that the Party which caused such damage or costs or the occurrence of such damage or cost was due to the negligence of the Party.
5.3 Each Investor hereby individually represents and warrants to the Company that:
XXXXXXXXXXXXXXXXXX
5.4 The Company represents to the Investors that each of the representations and warranties given in Schedule 2 were as of the day of this Agreement, and as deemed repeated on the Completion, true, accurate and not misleading as far as their content is concerned, and the Investors can rely on these representations and warranties. The aggregate liability of the Company under this Clause 5 is limited to the aggregate amount of the Investment plus a lumpsum of EUR XXXXXX per Investor to cover broken deal expenses.
5.5 The Current Shareholders represent and warrant to the Investors that to their best knowledge they are not aware that any of the representations and warranties given by the Company in Schedule 2 are not true or accurate or are misleading and the Investors can rely on these representations and warranties of the Company. The Current Shareholders who were aware at Effective Date of such misleading, inaccurate or untrue representation of the Company, shall be liable to the Investors for any damage and costs incurred by the Investors as a result of the fact that the Current Shareholders were aware of the fact that any of the representations and warranties given by the Company in Schedule 2 are not true or accurate or are misleading.
5.6 XXXXXXXX
5.7 The Company undertakes to inform the Investors on any changes to the Representation and Warranties which are contained in Schedule 2.
6. LIMITATION OF LIABILITY
6.1 Limitations in this Clause 6 shall not apply to the Claims that are the result of dishonesty, fraud, intentional concealment or intentional misrepresentation by a Party or a third person on behalf of a Party.
6.2 The aggregate liability of the warrantor in respect of all and any Claims brought by the entitled Party or Parties shall be limited to an amount equal to the aggregate amount of the Investment and this limit excludes any remedy expenses incurred by the claiming Party or a third party on behalf of the claiming Party in connection with the Claim.
6.3 Any Claim must be notified to the Warrantor within 4 months following the day on which the claiming Party acquired sufficient knowledge of a breach of a warranty resulting in such Claim. Should the Claim not be notified within such 4-month period, it shall cease to exist.
6.4 A Warrantor shall be liable only for the Claims the total value of which exceeds EUR XXXXXX; in such case, the Party shall be liable for the whole amount and not only for the amount exceeding EUR XXXXXX.
6.5 A Warrantor shall not be liable for any Claim if the alleged breach which is the subject of the Claim is capable of remedy and is remedied to the reasonable satisfaction of the Party to which the representation and/or warranty is addressed within 30 days upon being notified of such Claim.
7. Confidentiality
7.1 The Parties shall make no announcements concerning this Agreement and shall keep confidential all information (including any client’s data) provided to them by or on behalf of any Party in connection with this Agreement and the Business. Each Party shall also ensure that the obligation under the preceding sentence be complied with by their affiliates and other related parties, advisors or other persons that are interconnected with the relevant Party.
7.2 Nothing in this Clause prevents any announcement being made or any confidential information being disclosed (or being retained and not returned or destroyed) by any of the Parties as follows:
(a) general information regarding the entering into of this Agreement without publishing any commercial terms specified in this Agreement; or
(b) with the written approval of the other Parties, which in case of any announcement shall not be unreasonably withheld or delayed; or
(c) to the extent required by applicable law, any court of competent jurisdiction or any competent regulatory body, but if a person is so required to make any announcement or to disclose any confidential information, the relevant Party shall promptly notify the other Parties, where practicable and lawful to do so, before the announcement is made or disclosure occurs (as the case may be) and shall co-operate with the other Parties regarding the timing and content of such announcement or disclosure (as the case may be) or any action which the Parties may reasonably elect to take to challenge the validity of such requirement; or
(d) to the extent that the information is in or comes into public domain otherwise than as a result of a breach of any undertaking or the duty of confidentiality by any of the Parties or their affiliates and other related parties under this Agreement;
(e) to its affiliates and other related parties, professional advisers, auditors, bankers, directors, officers or employees on a need-to-know basis but, before any disclosure to any such person, the Parties shall procure that such person is made aware of the terms of this Clause and shall use its best endeavours to procure that such person adheres to those terms as if such person were bound by the relevant provisions of this Clause; or
(f) in the case of future investments in the Company, to new investors to the extent that is customary in similar cases, provided that (i) such a new investor is familiar with the fact that this information is confidential and (ii) he/she enters into a market standard confidentiality agreement.
8. Term
8.1 This Agreement shall become valid end effective among the Parties on the day of its signing by all the Parties (the “Signing Date”).
8.2 If the Company breaches any of its obligations under Clause 4.3, due to fault that is attributable to the Company and/or the Shareholders other than the Investors and such breach is not remedied within 30 Business Days, the Investors shall be entitled to rescind (in Czech: “odstoupit”) this Agreement and the Shareholders’ Agreement by delivering a written rescission notice to the relevant Parties. In such a case the Company and other (not rescinding) Parties are obliged to perform all the steps and factual and legal actions required by applicable law resulting in return of the relevant part of the Investment, which was paid to the Company, to the Investors, including (but not limited to) a decrease of the Company’s registered capital and refund of the respective amount of the Investment corresponding to the issue price of the New Shares. The Company shall pay a lumpsum fee of EUR XXXXXX to the Investors to cover broken deal expenses. The fee includes all reasonable costs and expenses reasonably incurred by the Investors in connection with investigating the affairs of the Company. The Investors shall agree on the distribution of the fee between them.
8.3 If any of the Investor breaches any of its obligations under Clause 4.4 due to fault that is attributable to such Investor and such breach is not remedied within 30 Business Days, the Company and Current Shareholders shall be entitled to jointly rescind (in Czech: “odstoupit”) this Agreement and the Shareholders’ Agreement against the breaching Investor by delivering a written rescission notice to the breaching Investor. In such a case the Company and other (not rescinding) Parties are obliged to perform all the steps and factual and legal actions required by applicable law resulting in return of the New Shares from relevant Investor to the Company, including (but not limited to) a decrease of the Company’s registered capital and refund of the respective amount of the Costs borne by the Company under this Agreement and refund of the respective amount of the Investment corresponding to the issue price of the New Shares to the relevant Investor toward which the rescission was addressed. The breaching Investor shall further pay a lumpsum fee of EUR XXXXXX to the Company to cover broken deal expenses. The fee includes all reasonable costs and expenses reasonably incurred by the Company in connection with investigating the affairs of the Company.
8.4 If the Company is not capable to meet the obligation set out in Clause 4 (other than due to a fault attributable to the Company or the Current Shareholders), the Parties agree to provide the Company with full assistance and cooperation to complete the obligations set out in Clause 4 and/or to adopt such remedy solution that would allow the Parties to achieve the purpose of this Agreement (e.g. transformation of the Company to a joint stock company).
9. Coming into force and effect
9.1 The Agreement comes into force on the day of its execution by all Parties and it comes into effect on the day of publication in the Register of Contracts under the ARC.
9.2 In connection with the application of ARC, the Parties agree as follows:
With the exception specified below, the Agreement does not contain any trade secrets of the with the exception specified below Parties or any information excluded from the disclosure duty (with the exception specified below) and is fit to be published in the Register of Contracts under ARC and the Parties agree with such a disclosure.
The exception consists in: (i) the amount and conditions of the Investment, Completion conditions, Investors’ identification and Schedule 1 and (ii) the personal data of the Parties (or representatives of the Parties) in the form of names and contact information of the persons specified at the head hereof, which will be obliterated;
In accordance with section 5 ARC Masarykova unverzita will send the administrator of the Register of Contracts an electronic image of the text contents hereof and any appendixes hereto in an open and machine readable format and metadata required by ARC, namely into the relevant data box of the Czech Republic - the Ministry of the Interior, assigned for the disclosure of records in the Register of Contracts via an electronic form available at the portal of the public administration. Prior to sending the final text to the administrator, Masarykova univerzita shall require prior approval of the Investors with the final text including appendixes to be published;
Masarykova unverzita will fulfil the obligations specified in paragraph 9.2(c) immediately after the date of the execution hereof, in each case no later than within 2 (two) Business days.
10. GENERAL PROVISIONS
10.1 The Parties agree that they shall procure the convening of all meetings, the giving of all waivers and consents and the passing of all resolutions and shall otherwise exercise all powers and rights available to them in order to give effect to the provisions of this Agreement.
10.2 Nothing in this Agreement shall be deemed to neither constitute a partnership between any of the Parties nor constitute any Party the agent of any other Party for any purpose.
10.3 The Parties hereby acknowledges that XXXXXXX investment is supported by InnovFin Equity, with the financial backing of the European Union under Horizon 2020 Financial Instruments and the European Fund for Strategic Investments (“EFSI”) set up under the Investment Plan for Europe. The purpose of EFSI is to help support financing and implementing productive investments in the European Union and to ensure increased access to financing.
11. Conflict with articles of association and other documents
11.1 The Parties agree, as between themselves, that if any provisions of the Articles of Association and any rules of procedure for the management (e.g. the Company’s internal policies, management agreements or employment contracts with the management) and other arrangements between the Parties, at any time conflict with any provisions of this Agreement or the Shareholders' Agreement, the provisions of this Agreement or the Shareholders' Agreement shall, to the extent permitted by applicable law, prevail (and in the case of a mutual conflict between the affected provisions of this Agreement and the Shareholders' Agreement, Clause 11.2 below shall apply) and the Parties shall (i) exercise all voting and other rights and powers available to them to give effect to the provisions of this Agreement or the Shareholders' Agreement (ii) (if necessary) to procure the amendment of the Articles of Association to the extent necessary to permit the Company and its affairs to be regulated as provided in this Agreement or the Shareholders' Agreement.
11.2 Without prejudice to Clause 11.1, the provisions of this Agreement and the Shareholders' Agreement shall, to the extent permitted by applicable law, prevail over the provisions of the Articles of Association.
11.3 In the case of any conflict between the provisions of this Agreement and the provisions of the Shareholders' Agreement, the provisions of the Shareholders' Agreement shall prevail.
11.4 The rights and obligations as set out under this Agreement shall also apply in case of a change of the corporate form of the Company (the “Transformation”). In such a case, the Parties undertake to resolve on the adoption of such amended articles of association and/or articles of association of the Company which shall as closely as possible correspond to the provisions of this Agreement, the Shareholders' Agreement and the Articles of Association. Further, the Parties undertake to use reasonable endeavours to realize all of the amendments to this Agreement and the Shareholders' Agreement required by such Transformation in a manner corresponding as closely as possible to its current provisions.
12. Governing law and jurisdiction
12.1 This Agreement shall be governed by the laws of the Czech Republic. The Parties agree that the application of any provision of Czech law that is not of a mandatory nature is expressly excluded to the extent that it could alter the meaning or purpose of any provision of this Agreement.
12.2 The Parties agree to use their best efforts to settle any dispute arisen under or in connection with this Agreement and/or the Related Documentation (the “Dispute”) amicably. If the Parties fail to resolve a Dispute amicably, the Dispute, including the issues of validity, interpretation, settlement or termination of the rights stemming from this Agreement or the Related Documentation, shall be referred to the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (the “Arbitration Court”) having the subject-matter jurisdiction. In such a case the Parties agreed that the Dispute, including the issues of validity, interpretation, settlement or termination of the rights stemming from this Agreement or the Related Documentation, shall be finally settled under the Rules of Arbitration of the Arbitration Court (Vienna Rules) by three arbitrators appointed in accordance with said Rules.
12.3 Notwithstanding the provisions of Clause 12.2, each Party may at any time seek interim measures including injunctive relief in relation to the provisions of this Agreement or a Party’s performance of it from any court of competent jurisdiction.
13. Notices
13.1 All notices and other communications provided for herein shall be made in and delivered to the intended recipients at the address, fax number or e-mail address specified in Clause 13.2 below or at such other address as shall be designated by each Party in a written notice given to the other Party.
13.2 The addresses of the Parties for the purpose of Clause 13.2 are as follows:
(a) CasInvent Pharma, a.s.
Address: Komenského nám. 220/2, Brno, 602 00
Attention of: XXXXXX
E-mail: XXXXXX
(b) Masarykova univerzita
Address: Žerotínovo nám. 617/9, 601 77 Brno
Attention of: XXXXXX
E-mail: XXXXXX
(c) i&i Prague, s.r.o.
Address: Flemingovo nám. 542/2, 166 10, Praha 6
Attention of: XXXXXX
E-mail: XXXXXX
XXXXXXX
14. COSTS AND EXPENSES
14.1 Each Party shall bear its own costs incurred in relation to the negotiation, preparation, execution, performance and implementation of this Agreement and each document referred to in it and other agreements forming part of the transaction provided that the Company shall bear all external costs of the legal counsel and the notary in connection with the preparation and execution of this Agreement and each document referred to in it and other agreements forming part of the transaction.
15. final provisions
15.1 If any of the provisions of this Agreement is or becomes invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired. The Parties shall nevertheless negotiate in good faith in order to agree the terms of a mutually satisfactory provision, achieving as nearly as possible the same commercial effect, to be substituted for the provision so found to be void or unenforceable.
15.2 This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any Party may enter into this Agreement by executing a counterpart.
15.3 This Agreement shall supersede any prior expressions of intent or memoranda with respect to Completion. A written consent of the Parties shall be required for any amendment hereof.
15.4 The rights and obligations by a Party under this Agreement must not be transferred or assigned without written agreement by the other Parties, except as for legal succession.
15.5 Unless this Agreement explicitly provides otherwise:
(a) this Agreement is binding on the Parties’ legal successors; and
(b) the Parties’ legal successors are fully entitled to all rights, claims and all other benefits from other Parties or otherwise under this Agreement.
15.6 Following Schedules attached to this Agreement form an integral part of this Agreement and are incorporated herein by reference:
Schedule 1: Ownership Structure
Schedule 2: Representations and Warranties
Schedule 3: Amendment to the Framework Agreement
Schedule 4: Amendment to the License Agreement
Schedule 5: Articles of Association
Schedule 6: Contribution Agreement
Schedule 7: Data Room Index
Schedule 8: Subscription Agreement
Schedule 9: Status of the patent proceedings of the MU Patents
Schedule 10: Accounts
AS EVIDENCE OF THE ABOVE this Agreement has been signed by the Parties (or their duly authorised signatories) on the date which first appears on page one.
[SIGNATURE PAGE FOLLOWS AFTER SCHEDULES]
Ownership Structure
RepresentationS and Warranties
AMENDMENT TO THE FRAMEWORK AGREEMENT
amendment to the licence agreement
articles of association
contribution agreement
data room index
subscription agreement
status of patent proceedings of the mu patents
ACCOUNTS
investment AGREEMENT SIGNATORIES
CasInvent Pharma, a.s.
Masarykova univerzita
Place: Brno
Place: Brno
Date: 22 July 2022
Date: 22 July 2022
_______________________________________
_______________________________________
Name: Vojtěch Helikar
Title: Member of the Board of Directors
Name: XXXXXX
Title: on the basis of the power of attorney
_______________________________________
Name: Alexander Scheer
Title: Member of the Board of Directors
XXXXXX
XXXXXX
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