EX-10.1





Exhibit 10.1


’’’’’’’


SHARE PURCHASE AGREEMENT


Dated as of March 5, 2009


relating to


the Shares of Bestewil Holding B.V.


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Table Of Contents




	 	 	 	 	 
	1 Sale and Purchase
	 	 	 6	 
	 
	 	 	 	 
	1.1 Shares
	 	 	6	 
	1.2 Consideration
	 	 	6	 
	1.3 Payment of Cash Consideration
	 	 	10	 
	 
	 	 	 	 
	2 Conditions precedent and Closing Events
	 	 	10	 
	 
	 	 	 	 
	2.1 Conditions Precedent to Closing
	 	 	10	 
	2.2 Closing Events
	 	 	13	 
	 
	 	 	 	 
	3 Representations and Warranties of the Seller
	 	 	20	 
	 
	 	 	 	 
	3.1 Due Organization
	 	 	20	 
	3.2 Articles of Incorporation and Bylaws; Records
	 	 	21	 
	3.3 Capitalization, Etc.
	 	 	21	 
	3.4 Financial Statements
	 	 	22	 
	3.5 Absence of Changes
	 	 	23	 
	3.6 Title to Assets
	 	 	25	 
	3.7 Receivables
	 	 	25	 
	3.8 Leasehold
	 	 	25	 
	3.9 Intellectual Property
	 	 	25	 
	3.10 Contracts
	 	 	28	 
	3.11 Liabilities
	 	 	30	 
	3.12 Compliance with legal requirements
	 	 	31	 
	3.13 Tax Matters
	 	 	31	 
	3.14 Employee and Labor Matters
	 	 	33	 
	3.15 Insurance
	 	 	34	 
	3.16 Related Party Transactions
	 	 	35	 
	3.17 Legal Proceedings; Orders
	 	 	35	 
	3.18 Authority; Binding Nature of Agreement
	 	 	36	 
	3.19 Insolvency
	 	 	36	 
	3.20 Social Security Contributions and Pension Plans
	 	 	36	 
	3.21 No Broker; No Transaction Expenses
	 	 	37	 
	3.22 Capacity of the Seller, Title to Shares, No Conflict
	 	 	37	 
	3.23 Full Disclosure
	 	 	39	 
	 
	 	 	 	 
	4 Representations and Warranties of the Purchaser
	 	 	39	 
	 
	 	 	 	 
	4.1 Incorporation and Authority
	 	 	39	 
	 
	 	 	 	 
	5 Covenants of the Parties
	 	 	40	 
	 
	 	 	 	 
	5.1 Conduct between the Effective Date and the Closing Date
	 	 	40	 
	5.2 Restriction of Announcement
	 	 	42	 
	5.3 Access to Information Prior to the Closing Date
	 	 	42	 
	5.4 Co-operation
	 	 	43	 
	5.5 Confidentiality
	 	 	43	 






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	5.6 Non-competition
	 	 	44	 
	5.7 Non-solicitation
	 	 	44	 
	5.8 Reciprocal assistance in relation with mandatory filings and reporting
	 	 	45	 
	 
	 	 	 	 
	6 Indemnification
	 	 	45	 
	 
	 	 	 	 
	6.1 Indemnification by the Seller
	 	 	45	 
	6.2 Tax and Social Security Indemnity by Seller
	 	 	48	 
	6.3 Claim Notice
	 	 	48	 
	6.4 Setoff
	 	 	49	 
	6.5 Third Party Claims
	 	 	50	 
	6.6 Knowledge of Purchaser
	 	 	50	 
	6.7 No recourse
	 	 	51	 
	 
	 	 	 	 
	7 Termination
	 	 	51	 
	 
	 	 	 	 
	7.1 Right to Terminate
	 	 	51	 
	7.2 Termination Procedures
	 	 	52	 
	7.3 Effect of Termination
	 	 	53	 
	 
	 	 	 	 
	8 Miscellaneous
	 	 	53	 
	 
	 	 	 	 
	8.1 Entire Agreement
	 	 	53	 
	8.2 Amendment
	 	 	53	 
	8.3 Costs and Expenses
	 	 	53	 
	8.4 Assignment
	 	 	54	 
	8.5 Notices
	 	 	54	 
	8.6 Severability
	 	 	56	 
	8.7 Governing Law
	 	 	56	 
	8.8 Jurisdiction
	 	 	57	 
	8.9 Counterparts
	 	 	57	 






Table of schedules




	 	 	 
	Schedule 2.1.1i
	 	Draft Antonius Stegmann employment agreement
	 
	Schedule 2.1.1j
	 	Draft Jan Wilschut consulting agreement
	 
	Schedule 2.1.1k
	 	Draft research agreement regarding the services of Tjarko Meijerhof
	 
	Schedule 2.2.1a
	 	Draft confirmation by a US Counsel
	 
	Schedule 2.2.1a bis
	 	Draft confirmation by a Swiss Counsel
	 
	Schedule 2.2.1b
	 	Draft confirmation by an Australian Counsel
	 
	Schedule 2.2.1c
	 	Payment instructions to the Notary
	 
	Schedule 2.2.1d
	 	Draft of shareholders resolution
approving the possible transfer of voting rights under the notarial deed of pledge
	 
	Schedule 2.2.1d bis
	 	Draft shareholder resolution approving an amendment of the articles of association of the Company
	 
	Schedule 2.2.1d ter
	 	Draft notarial deed amending the articles of association of the Company






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	Schedule 2.2.1d quarter
	 	Draft statement regarding the
resignations of directors
	 
	Schedule 2.2.1f
	 	Draft confirmation by Loyens & Loeff that the former pledge has not vested
	 
	Schedule 2.2.1h
	 	Draft release from the Previous Sellers
	 
	Schedule 2.2.1i
	 	Draft deed of transfer of Shares
	 
	Schedule 2.2.1j
	 	Draft Loan Note
	 
	Schedule 2.2.1k
	 	Draft Deed of pledge
	 
	Schedule 2.2.1k
	 	Draft share option agreement
	 
	Schedule 2.2.1m
	 	Draft License agreement between the Seller and Bestewil/V.B.
	 
	Schedule 2.2.1n
	 	Draft deed of assignment of rights to be executed by the Seller
	 
	Schedule 2.2.1o
	 	Draft deed of assignment of rights to be executed by the Antonius Stegmann
	 
	Schedule 2.2.1p
	 	Draft deed of assignment to the Purchaser of the Loan Repayment Claim
	 
	Schedule 3
	 	Disclosure Letter, including the following schedules:
	 
	 
	 	Schedule 3.4.1 Bestewil Holding B.V. addititional Financial statements
	 
	 
	 	Schedule 3.9.1       Intellectual property rights owned by the Company
	 
	 
	 	Schedule 3.9.2       Intellectual property rights licensed to the Company
	 
	 
	 	Schedule 3.10.1      Material contracts
	 
	 
	 	Schedule 3.14.1      Employees
	 
	 
	 	Schedule 3.14.2      Employees benefits
	 
	 
	 	Schedule 3.15.1      Insurance policies





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Effective as of the 5th day of March, 2009 (the “Effective Date”) the following




SHARE PURCHASE AGREEMENT




has been entered into by and among:





	 	1.	 	Norwood Immunology Limited ABN 91 095 271 186, of P.O. Box 211, Patterson Lakes,
Victoria 3197, Australia





(hereinafter the “Seller”)




and





	 	2.	 	Mymetics Corporation, a company organized under the laws of the State of Delaware with
a registered address at 230 Park Avenue, New York, NY 10169, and a place of business
located at 14, rue de la Colombière, 1260 Nyon, Switzerland





(hereinafter the “Purchaser”)



The Seller and the Purchaser will be referred to hereinafter collectively as the “Parties”
and individually as a “Party”.




WHEREAS





	 	A.	 	Bestewil Holding B.V. (the “Company”) is a Dutch company with limited
liability, limited by shares (“Besloten Vennootschap”) organized under the laws of the
Netherlands and founded on April 15, 2004.
	 
	 	B.	 	The issued and outstanding capital of the Company amounts to EUR 18’870 divided in
18’870 registered ordinary shares (the “Shares”) with par value of EUR 1.- (one).
	 
	 	C.	 	The Seller is the registered owner of all the Shares.




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	 	D.	 	The Seller has lent to the Company the amount which on 31.12.2008 amounted to €
324,903.77 and which on the Closing Date will be this amount plus any further amounts lent
by the Seller to the Company (such amounts not to exceed €100,000) less any repayments
made by the Company to the Seller, together with interest thereon calculated monthly based
on a rate of 8% per annum calculated on a 360 day year (the “Loan”) and therefore
had a claim for repayment of the Loan toward the Company (the “Loan Repayment
Claim”).
	 
	 	E.	 	The Company holds the totality of the issued share capital of Virosome Biologicals
B.V., a company incorporated under the laws of the Netherlands (hereinafter
“V.B.”).




NOW THEREFORE, THE PARTIES have agreed as follows:





	1	 	Sale and Purchase
	 
	1.1	 	Shares.




On the terms and subject to the conditions set forth in this agreement (the “Agreement”),
the Seller hereby undertakes and agrees to sell and transfer to the Purchaser, with all rights and
obligations pertaining thereto, the Shares and the Loan Repayment Claim, and the Purchaser
undertakes to purchase from the Seller the Shares and the Loan Repayment Claim.





	1.2	 	Consideration




In consideration for the Shares and the Loan Repayment Claim, the Purchaser shall:





	 	1.2.1	 	pay to the Seller on the Closing Date (as defined below) EUR 5’000’000 (five million
euro) in cash (the “Cash Consideration”).
	 
	 	1.2.2	 	issue to the Seller on the Closing Date a convertible and redeemable loan note in the
format attached hereto as Schedule 1.2.2 (the “Loan Note”) with a face
value of EUR 2’500’000 (two million five hundred thousand) and subject to the following
terms and conditions:






	 	a.	 	the Loan Note shall mature 36 months after the Closing Date;




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	 	b.	 	the Purchaser shall have the right to redeem the Loan Note at any time
before it matures, subject to first giving the Seller 20 days notice to convert the
Loan Note in accordance with the provisions of 1.2.2(d) below;
	 
	 	c.	 	the Loan Note shall carry an interest of 5% per annum with interest
accruing and compounding annually on the basis of a year of 360 days. Accrued
interest shall be paid at maturity or on the date of conversion of the principal
into Purchaser’s common shares;
	 
	 	d.	 	the outstanding principal of the Loan Note shall be convertible at any
time into Purchaser’s common shares in whole or in part at the Seller’s option by
giving to the Purchaser a written notice of at least 10 Business Days,
“Business Days” being defined as Monday through Friday, except those days
which are official holidays in the canton of Geneva, Switzerland. The conversion
price shall be the lower of (i) USD 0.80 (eighty cents) or (ii) the issue price of
the shares that the Purchaser
intends to issue after the Closing Date for the
purpose of raising the necessary funds to repay the bridge loan granted to the
Purchaser to pay the Cash Consideration (the “Conversion Price”); for the
purpose of the conversion under this paragraph, the Parties agree that the USD/EUR
exchange rate shall be USD 1 equals EUR 0.7805;
	 
	 	e.	 	any shares acquired by the Seller following the conversion of the Loan
Note shall be subject to the Trading Restrictions (as defined below);
	 
	 	f.	 	the Purchaser shall secure its obligations under the Loan Note towards
the Seller by pledging to the Seller one third (1/3) of the Shares;
	 
	 	g.	 	such other terms which are customary for a convertible and redeemable
loan note;






	 	1.2.3	 	issue to the Seller on the Closing Date a number of options equal to the result
obtained by dividing USD 9’609’225 by the Conversion Price. Each of such share option shall
give the Seller the right to subscribe for a cash consideration equal to the Conversion
Price one common share of the Purchaser or, if shares are issued in the share capital of





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	 	 	 	Purchaser with more favorable financial rights or preferences attached to them in the
context of the fundraising referred to in Section 1.2.2.(d) of Agreement (“Preferred
Shares”), at the election of Seller one Preferred Share (the “Share Option”).
Each Share Option shall be exercisable for a period of three years from the Closing Date.
Any share of the Purchaser acquired following the exercise of any Share Option shall be
subject to the Trading Restrictions.
	 
	 	1.2.4	 	pay, or shall cause one of its affiliated companies to pay, to the Seller
EUR 3’000’000 (three million) in cash provided (1) Solvay Pharmaceuticals B.V., or any
other third party has commenced on or before April 1, 2013 a Phase 3 clinical trial in its
experimental intranasal influenza vaccine pursuant to the license agreement between Solvay
Pharmaceuticals B.V. and V.B. dated August 18, 2003 (the “Solvay License”), and (2)
the net present value of all income streams derived from such Solvay License (at a discount
rate of 15%) (the “Solvay NPV”), is at least EUR 6’000’000 (six millions Euros).
Should the Solvay NPV be less than EUR 6’000’000, then the amount payable to the Sellers
will be reduced from EUR 3’000’000 to an amount equivalent to 50% of the Solvay NPV. This
amount will be payable to the Seller within 60 Business Days following the presentation of
documentary evidence satisfactory to the Purchaser that such Phase 3 clinical trial has
commenced before the date set forth in the preceding sentence. In the event of a dispute
whether or not the Phase 3 clinical trial referred to above has started or in connection
with the calculation of the Solvay NPV, the Seller and the Purchaser shall submit the
matter to one expert in the field to be appointed by the Seller and Purchaser jointly which
expert shall render a binding decision on the Seller and Purchaser within 60 days after the
matter has been submitted to him/her.
	 
	 	1.2.5	 	pay, or shall cause one of its affiliated companies to pay, to the Seller EUR
2’800’000 (two million eight hundred thousand) in cash provided (1) MedImmune LLC (or
another third party) has entered on or before April 1, 2011 into a license agreement to
access the intellectual property and know how of the Company and/or V.B. relating to either
(i) the virosome method of manufacture “DCPC” and/or (ii) adjuvanted virosomes (the “VB
IP”) in the field of Respiratory Syncytial Virus (the “RSV License”), and (2)
the net present value of all income streams derived from such RSV License (at a
discount rate




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	 	 	 	of 15%), net of royalty obligations to the Seller is at least EUR 5’600’000 (five million
six hundred thousand Euros) (the “RSV NPV”). Should the RSV NPV be less than EUR
5’600’000, then the amount payable to the Sellers will be reduced from EUR 2’800’000 to an
amount equivalent to 50% of the RSV NPV. This amount will be payable to the Seller within
60 Business Days following the calculation of the RSV NPV pursuant to such a license
agreement executed before the date set forth in the preceding sentence. In the event of a
dispute in connection with the calculation of the RSV NPV, the Seller and the Purchaser
shall submit the matter to one expert in the field to be appointed by the Seller and
Purchaser jointly which expert shall render a binding decision on the Seller and Purchaser
within 60 days after the matter has been submitted to him/her.
	 
	 	1.2.6	 	pay, or shall cause one of its affiliated companies to pay, in cash to the Seller 50
(fifty) percent of the Net royalties received by the Purchaser (or its affiliates or
assignees) pursuant to any third party RSV License. For the purpose of this Agreement
“Net” shall mean, in connection with royalties, the amounts invoiced by the
Purchaser (or its affiliates or assignees) to an unaffiliated third party pursuant to a
third party RSV License or HSV License, less the following:






	 	a.	 	Any costs that are exclusively related to securing, maintaining and
enforcing the intellectual property protection specific to each such license
(rather than the Company IP in general) such as patenting and litigation expenses,
costs incurred in the licensing of the intellectual property and other costs
directly related to and necessary in relation with the royalties;
	 
	 	b.	 	Any irrecoverable tax which may be levied, except income taxes;
	 
	 	c.	 	If applicable, any irrecoverable discount or rebate, reimbursement,
allowance and credit.






	 	1.2.7	 	pay, or shall cause one of its affiliated companies to pay, in cash to the Seller 25
(twenty-five) percent of any Net amounts received by the Purchaser or its affiliates or
assignees (up-front payments, milestones and royalties, but excluding payments received by
the Purchaser/the Company/V.B. to reimburse the actual costs incurred on behalf of





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	 	 	 	or under instruction from a third party licensee) pursuant to any license with a third
party allowing that party to access the VB IP in the field of Herpes Simplex Virus (an
“HSV Licence”).
	 
	 	1.2.8	 	The Purchaser shall procure that the obligations set forth under Sections 1.2.4 to
1.2.7 become part of the RSV License (with respect to Sections 1.2.5 and 1.2.6),
respectively the HSV License (with respect to Section 1.2.7) so that in the event where
such licenses are sold or assigned these royalties obligations towards the Purchaser
continue to bind the parties to these licenses. If Seller notifies its desire thereto to
Purchaser, Purchaser shall also procure that the obligations set forth under Section 1.2.4.
become part of the Solvay License.
	 
	 	1.2.9	 	The shares received by the Seller under Sections 1.2.2d and/or 1.2.3 shall be subject
to Rule 144, including a lock-up or stand-still for a period of 6 (six)
months, which
period shall be computed after the date on which the shares are acquired (the “Trading
Restrictions”).






	1.3	 	Payment of Cash Consideration.






	 	1.3.1	 	The Cash Consideration shall be paid by the Purchaser to the third party account of
the Notary (as defined below) pursuant to the payment instructions and the Notary shall,
subsequently, distribute the Cash Consideration in accordance with the instruction letter
by Seller, Berrink Holding B.V., Toon Stegmann Beheer B.V., and Jan Wilschut Beheer B.V.
attached hereto as Schedule 2.2.1c.






	2	 	Conditions precedent and Closing Events 






	2.1	 	Conditions Precedent to Closing.






	 	2.1.1	 	The obligations of the Purchaser to consummate the transactions contemplated by this
Agreement shall be subject to the following conditions precedent having been satisfied




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	 	 	 	or,
to the extent legally permissible, waived by the Purchaser in writing on or prior to the
Closing Date:






	 	a.	 	all representations and warranties of the Seller shall have been true
and correct as of the Effective Date in all material respects, and shall be true
and accurate as of the Closing Date in all material respects;
	 
	 	b.	 	between the Effective Date and the Closing Date, no material adverse
change to the business, financial condition, assets, liabilities, operations,
financial performance or prospects of the Company shall have occurred, and no event
shall have occurred and no condition or circumstance shall exist that reasonably
could be expected to give rise to any such material adverse change to the business,
financial condition, assets, liabilities, operations, financial performance or
prospects of the Company, regardless of whether such a change becomes known to the
Purchaser subsequent to the date of this Agreement;
	 
	 	c.	 	Berrink Holding B.V., Toon Stegmann Beheer B.V. and Jan Wilschut Beheer
B.V. shall have released the Shares from the right of pledge granted to them by the
Seller under the share purchase agreement dated October 26, 2006;
	 
	 	d.	 	the Seller and the Company shall have performed and complied in all
respects with all agreements, covenants and conditions required by this Agreement
to be performed, complied with or satisfied by the Seller or the Company prior to
or on the Closing Date;
	 
	 	e.	 	the Company shall have no outstanding interest-bearing indebtedness for
borrowed money on the Closing Date from parties other than its shareholders (the
Loan);
	 
	 	f.	 	there shall not be any injunction, judgment, order, decree, ruling, or
charge in effect preventing consummation of or modifying in any material respects
any of the transactions contemplated by this Agreement;
	 
	 	g.	 	neither the consummation nor the performance of any of the transactions
contemplated by this Agreement will, directly or indirectly (with or without notice




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	 	 	 	or lapse of time), contravene or conflict with or result in a violation of any
applicable legal requirement or order;
	 
	 	h.	 	since the date of this Agreement and to the Closing Date, there shall
not have been commenced or threatened any proceeding relating to the Company, V.B.,
the Seller, Antonius Stegmann, Jan Wilschut, or Tjarko Meijerhof (a) involving any
material challenge to, or seeking material damages or other material relief in
connection with, any of the transactions contemplated by this Agreement, (b) that
may have the effect of preventing, delaying, making illegal or otherwise
interfering with any of the transactions contemplated by this Agreement, (c)
seeking to prohibit or limit in any material respect the Purchaser’s ability to
hold, transfer, vote, receive dividends or otherwise exercise ownership rights with
respect to the stock of the Company, (d) that could materially and adversely affect
the right of the Purchaser or the Company to own the assets or operate the business
of the Company (e) seeking to compel the Purchaser or the Company to dispose of or
hold separate any shares of stock of the Company or any material assets as a result
of any of the transactions contemplated by this Agreement;
	 
	 	i.	 	V.B. shall have executed with Antonius Stegmann, the Chief Scientific
Officer of V.B, an employment agreement as of the Closing Date in the form set
forth in Schedule 2.1.1i;
	 
	 	j.	 	V.B. shall have executed with Jan Wilschut a consulting agreement as of
the Closing Date substantially in the form set forth in Schedule 2.1.1j;
	 
	 	k.	 	the Seller shall have used reasonable endeavors to ensure that V.B.
shall have executed with University Medical Centre Groningen a research agreement
covering the provision of services of Tjarko Meijerhof (a laboratory technician in
the employ of University Medical Centre Groningen) as of the Closing Date
substantially in the form set forth in Schedule 2.1.1k;
	 
	 	l.	 	the review of the five (5) SOPs attached to the Disclosure letter
(Schedule 3) shall have been reasonably satisfactory to the Purchaser;







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	 	2.1.2	 	The obligations of the Seller to consummate the transactions contemplated by this
Agreement shall be subject to the following conditions precedent having been satisfied or,
to the extent legally permissible, waived by the Seller in writing on or prior to the
Closing Date:






	 	a.	 	The shareholders of the Seller have validly approved the transactions
contemplated in this Agreement;
	 
	 	b.	 	all representations and warranties of the Purchaser shall have been
true and correct as of the date of this Agreement in all material respects, and
shall be true and accurate as of the Closing Date in all material respects;
	 
	 	c.	 	there shall not be any injunction, judgment, order, decree, ruling, or
charge in effect preventing consummation of or modifying in any material respects
any of the transactions contemplated by this Agreement.






	 	2.1.3	 	As used herein, the term “Conditions Precedent” means the conditions to the
obligations of the respective Parties to consummate the transactions contemplated by this
Agreement as set forth in Sections 2.1.1 and 2.1.2.
	 
	 	2.1.4	 	The Parties undertake to use their best endeavors and to render to each other all
reasonably necessary support and cooperation to ensure that the Conditions Precedent are
fulfilled as soon as possible after the Effective Date. Each of the Parties shall have the
right to waive the occurrence of any or all of the Conditions Precedent that represent
conditions to the obligations of such Party to consummate the transactions contemplated by
this Agreement.






	2.2	 	Closing Events.






	 	2.2.1	 	Subject to the terms and conditions of this Agreement, the sale and purchase of the
Shares shall be consummated in the form of the transfer of the Shares (the
“Closing”) on




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	 	 	 	April 1, 2009, provided that all Conditions Precedent have been
satisfied or waived on that date, or on such other date as the Parties may agree (the
“Closing Date”). On the Closing Date, the following events (the “Closing
Events”), in addition to any other
events described herein or contemplated hereby which are to take place at the Closing,
shall take place at the offices of one of the civil law notaries of De Brauw Blackstone
N.V., or his substitute (the “Notary”):






	 	a.	 	delivery by the Purchaser of (a) a copy of a resolution of the board of
directors of the Purchaser authorizing the transactions contemplated in this
Agreement, (b) a confirmation by a US Counsel in the form of Schedule
2.2.1a and (c) a confirmation by a Swiss Counsel in the form of Schedule
2.2.1a bis;
	 
	 	b.	 	delivery by the Seller of (a) a copy of a resolution of the board of
directors of the Seller, (b) a copy of a resolution of the shareholders of the
Seller, authorizing the transactions contemplated in this Agreement and a
confirmation by an Australian Counsel in the form of Schedule 2.2.1b;
	 
	 	c.	 	after payment by Purchaser of the Cash Consideration to the Notary’s
designated ING bank account number 69.32.13.876 (BIC: INGBNL2A; IBAN: NL83 INGB
0693 2138 76)  or any other designated account of which the details are provided by
the Notary to the Purchaser ultimately five (5) Business Days prior to the Closing
Date (kwaliteitsrekening), three (3) Business Days before the Closing Date, and
with value as per the Closing Date, the Notary shall hold the Cash Consideration
for and on behalf of the Purchaser until such time as the deed of transfer shall
have been executed after which the Notary shall hold the Cash Consideration for and
on behalf of the Seller. On the Business Day after the Closing the Notary shall pay
EUR 4,713,470.51 to the Seller and, at the request of the Seller, EUR 128,938.27
to Berrink Holding B.V., EUR 128,938.27 to Toon Stegmann Beheer B.V., and EUR
28,625.95 to Jan Wilschut Beheer B.V (collectively the “Previous Sellers”
and individually, each a “Previous Seller”), cumulatively EUR
286,502.49, in each case on the accounts and with providing the codes and otherwise
in accordance with the written instructions to the Notary by




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	 	 	 	the Seller and each of
the Previous Sellers, substantially in the form of Schedule 2.2.1c. The
reason for the payment of the cumulative amount of EUR 286,502.49 to the Previous
Sellers is that the Seller purchased the Shares from the Previous
Sellers and has existing loan note obligations to the Previous Sellers, and that
the Seller in relation to such purchase agreed not to approve or cooperate with a
transfer of the Shares without prior written consent of the Previous Sellers, and
that the Previous Sellers shall only give such consent if the amount of EUR
286,502.49 is paid to the Previous Sellers (to discharge such loan note obligations
together with interest thereon) directly by the Notary after Closing;
	 
	 	d.	 	delivery of written resignations of directors and/or auditors of the
Company and/or B.V., as directed by the Purchaser at least five Business Days prior
to the Closing Date, including a statement of the resigning directors and/or
auditors that they have no claims against the Company (in the form set forth in
Schedule 2.2.1d quater) and resolutions appointing new directors and/or
auditors designated by the Purchaser effective as of the Closing as well as a
shareholders resolution approving the possible transfer of voting rights under the
notarial deed of pledge referred to in Section 2.2.1k (in the form set forth in
Schedule 2.2.1d) and a shareholder resolution approving an amendment of the
articles of association of the Company (in the form set forth in Schedule
2.2.1d bis) and subsequent to the delivery of that last resolution: the
execution of a notarial deed effecting that amendment, in the form set forth in
Schedule 2.2.1d ter;
	 
	 	e.	 	delivery of confirmation statements regarding the authorization of
non-Dutch parties to enter into the notarial deeds of transfer and pledge referred
to in Section 2.2.1i and Section 2.2.1k respectively and regarding the legal title
for the transfer and pledges under these notarial deeds, as well as, if parties do
not physically attend the execution of the notarial deeds, powers of attorney from
such parties;
	 
	 	f.	 	delivery of confirmation by Loyens & Loeff, civil notaries in
Amsterdam, that no pledge has vested as per the Closing Date in favor of Berrink
Holding B.V., Toon




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	 	 	 	Stegmann Beheer B.V and Jan Wilschut Beheer B.V under the share
purchase agreement dated October 26, 2006 in the form set forth in Schedule
2.2.1f;
	 
	 	g.	 	delivery of written instructions to the Notary, substantially in the
form of Schedule 2.2.1c.
	 
	 	h.	 	delivery of a written release of the Previous Sellers from any claim
whatsoever which they may have against any party under the share purchase
agreement dated October 26, 2006, and from any right to monies outstanding and any
interest whatsoever in the Shares which they may under such agreement and
renouncing any pledge rights under this agreement in the form set forth in
Schedule 2.2.1h, provided, however, that this release does not affect the
rights the Previous Sellers have that are associated to the shares they hold in
the Seller (obtained as partly consideration under the October 26, 2006 share
purchase agreement) such as dividend rights;
	 
	 	i.	 	execution by the Seller and the Purchaser before the Notary of a
notarial deed transferring the Shares to the Purchaser in the form set forth in
Schedule 2.2.1i;
	 
	 	j.	 	execution by the Purchaser and the Seller of the Loan Note including a
share pledge relating to one third of the Shares in the form set forth in
Schedule 2.2.1j;
	 
	 	k.	 	execution by the Purchaser and the Seller of the notarial deed of
pledge relating to one third of the Shares in the form set forth in Schedule
2.2.1k;
	 
	 	l.	 	execution by the Purchaser and the Seller of a share option agreement
relating to the Shares Options contemplated in Section 1.2.3 in the format set
forth in Schedule 2.2.1l;
	 
	 	m.	 	execution by the Company and the Seller of a license agreement whereby
the Seller is granted




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	 	 	 	license on the Company Patents under the following key terms
(the “License”):






	 	1.	 	the “License Grant” shall be for an Exclusive, worldwide
license on the Company Patents to execute Programs and to make, use, put on
the market,
sell, offer, offer to sell, import, keep in stock, hire out and/or to deliver
Products for use in the Field and during the Term;
	 
	 	2.	 	“Exclusive” shall mean that the Company shall not be
entitled to grant licenses in the Field to unrelated third parties but shall
be free to use the Company IP itself, including in the Field as the case may
be, and to license it to its affiliates or business partners as may be
necessary to carry out its research or business activities;
	 
	 	3.	 	the Seller shall have the right to sub-license with the
prior written consent of the Company, which consent shall not be unreasonably
withheld; in the event of sub-license, the sub-licensee shall be bound by all
obligations of the Seller under the License agreement;
	 
	 	4.	 	the “Company Patents” shall mean the patent families
accruing from WO 2004071492 (“Virosome like particles”), and EP 0762870B1
(“Virosome-mediated delivery of therapeutic agents”), as well as Improvement
Patents;
	 
	 	5.	 	“Improvement Patent” means issued
patents, including
without limitation utility models and certificates of invention; worldwide-,
national- and/or regional patent applications; and re-issues,
re-examinations, supplementary protection certificates, extensions, term
restorations, continuations, continuations-in-parts, divisionals, renewals,
or additions to any patents or patent applications, and any and all patents
and patent applications claiming priority thereto, that include know-how
rights that are developed by the Seller using the technology described in the
patent or an improvement patent;





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	 	6.	 	the “Programs” shall mean the Seller’s research and/or
development programs that employ the Product as described or claimed in the
the Company Patents and that employ methods and/or technology as described or
claimed in the Company Patents, to perform research and/or to perform


	 
	 	 	 	pre-clinical and clinical trials and/or to make, to use, to put on the market,
to sell, to offer, to import, to stock, to hire out or to deliver Products for
the Field;


	 
	 	7.	 	the “Product” shall mean a virosome or virosome containing
composition used for the delivery of proteins into cells;


	 
	 	8.	 	the “Field” shall mean the use of virosomes for the
delivery of proteins to cells, ex vivo and in vitro, however, explicitly
excluding the use of virosomes as prophylactic or therapeutic vaccines or in
other compositions that elicit, modify or affect an immune response in a
patient or animal, and also specifically excluding direct application of the
virosomes to the body of patients or animals;


	 
	 	9.	 	the “Term” shall mean the period starting on the Closing
Date and ending with the expiration or nullification of the last patent of
the Company Patents, unless the License is terminated earlier as provided for
under the license agreement, namely in case of insolvency of bankruptcy of
one of the parties to the License agreement or in case of default of the
Seller under the License agreement (the fact that the Seller or any of its
registered affiliates has not entered into a clinical trial for a Product in
the Field within five (5) years after the Effective Date shall constitute
such a breach);


	 
	 	10.	 	the consideration for the License Grant shall be payment by
the Seller to Company and/or V.B of (i) any costs incurred by the Company
and/or V.B for any work undertaken or out of pocket costs incurred at the
request of the Seller directly in relation to the operation of such License
agreement and (ii) a 25% share of any Net (as defined in Section 1.2.6 of
this Agreement)






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	 	 	 	income received by the Seller from third parties (to include
up-front payments, milestones and royalties, but excluding payments received
by the Seller or its affiliates to reimburse the actual costs incurred on
behalf of or under instruction from a third party sub licensee);


	 
	 	11.	 	the Company shall own the full right and title to any
improvement patents, and may use the information provided by the Seller under
the License agreement at its discretion to (i) include in newly filed patent
applications and in the course of examination/prosecution of the Company
Patents, as well as in any possible lawsuits related to the Company, or to
(ii) amend and/or annotate its know-how for delivery to licensees other than
the Seller, which licensees do have or are negotiating, a license under the
Company Patents, which know-how shall only be disclosed under conditions of
confidentiality at least as restrictive as those contained herein;


	 
	 	12.	 	the Company shall maintain the Company Patents at its
discretion and is free to decide to abandon part or all thereof, the Seller
having a first right to obtain the Company Patents rights at a commercial
price.








	 	n.	 	delivery of deed signed by the Seller, transferring to Bestewil any
intellectual property rights, existing upon the Closing Date or coming into
existence thereafter and relating to inventions developed prior to the Closing Date
which may remain with the Seller or any legal entity controlled by it and relating
to the business of V.B. and/or the Company, except for the license rights provided
for under Section 2.2.1m, in the form of the assignment deed attached thereto as
Schedule 2.2.1n;
	 
	 	o.	 	 delivery of deed signed by Antonius Stegmann, transferring to Bestewil
any intellectual property rights, existing upon the Closing Date or coming into
existence thereafter and relating to inventions developed prior to the Closing Date
which may remain with him or any legal entity controlled by him and relating to the
business of V.B and/or the Company, in particular all rights relating to the patent
EP 0762870 B1 (virosome mediated delivery of therapeutic agents) relating






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	 	 	 	to the business of V.B and/or the Company, in the form of the assignment deed
attached thereto as Schedule 2.2.1o;
	 
	 	p.	 	delivery of deed signed by the Seller, assigning to the Purchaser the
Loan Repayment Claim, in the form of the assignment deed attached thereto as
Schedule 2.2.1p;






	 	2.2.2	 	Each of the Parties shall have the right to waive the occurrence of any or all of the
Closing Events that represent conditions to the obligation of such Party to consummate the
transactions contemplated by this Agreement at any time.






	3	 	Representations and Warranties of the Seller
	 
	 	 	The Seller, with full knowledge that the Purchaser has relied thereon to decide to purchase
the Shares, hereby makes the representations and warranties set forth in this Section 3 to
the Purchaser (subject to the Disclosure Letter, attached hereto as Schedule 3, and
the Schedules attached to the Disclosure Letter) as per the Effective Date and, if
applicable, as per the Closing Date. Except where specifically noted, each representation and
warranty with respect to the Company shall also be deemed be an identical representation of
warranty with respect to any subsidiary of the Company. For the representation and warranties
which are qualified by the Best Knowledge of the Seller, Best Knowledge shall mean both (a)
the actual knowledge of the management and the board of directors of the Seller and the
Company, and (b) such information as should have been known, after reasonable inquiry, of the
management and the board of directors of the Seller and the Company, in either case as of the
Effective Date or the Closing Date (as the context shall require).






	3.1	 	Due Organization






	 	3.1.1	 	The Company is a corporation duly organized, validly existing and in good standing
under the laws of the Netherlands and has all necessary power and authority: (i) to conduct
its business in the manner in which its business is currently being conducted, (ii)





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	 	 	 	to own and use its assets in the manner in which its assets are currently owned and used,
and (iii) to perform its obligations under any contract to which it is a party.






	3.2	 	Articles of Incorporation and Bylaws; Records.






	 	3.2.1	 	There has not been any violation of any of the provisions of the Company’s articles of
incorporation or bylaws, and the Company has not taken any action that is inconsistent in
any material respect with any resolution adopted by the Company’s shareholders or the
Company’s board of directors. The books of account, share register, minutes of board and
shareholder meetings and actions and other records of the Company are accurate, up-to-date
and complete in all material respects, and have been maintained in accordance with prudent
business practices






	3.3	 	Capitalization, Etc.






	 	3.3.1	 	Bestewil Holding BV is a Dutch company limited by shares which is registered with the
Commercial Register of Den Haag, with an authorized share capital of EUR 90 000 Euro,
divided into 90 000 shares with a nominal; value of € 1 (one Euro) of which 18.870
ordinary shares are issued and outstanding. All of the outstanding Shares have been duly
authorized and validly issued, and are fully paid up in compliance with the laws of the
Netherlands.
	 
	 	3.3.2	 	Virosome Biologicals BV is a Dutch company limited by shares which is registered with
the Commercial Register of Den Haag, with an authorized share capital of EUR 90 000 Euro,
divided into 90 000 shares with a nominal; value of € 1 (one Euro), of which 18.000
ordinary shares are issued and outstanding,
divided in 16,200 ordinary shares of series
A and 1,800 ordinary shares of series B. All of the outstanding Shares have been duly
authorized and validly issued, and are fully paid up in compliance with the laws of the
Netherlands.
	 
	 	3.3.3	 	There is no (i) outstanding subscription, option, call, warrant or right (whether or
not currently exercisable) to acquire any shares of the capital stock or other securities
of the Company; (ii) outstanding security, instrument or obligation that is or may become




-21-









 






	 	 	 	convertible into or exchangeable for any shares of the capital stock or other securities
of the Company; (iii) contract under which the Company is or may become obligated to sell
or otherwise issue any shares of its capital stock or any other securities; or (iv) to the
Best Knowledge of the Seller, condition or circumstance that may give rise to or provide a
basis for the assertion of a claim by any person to the effect that such person is
entitled to acquire or receive any shares of capital stock or other securities of the
Company.






	 	3.3.4	 	The Company has never repurchased, redeemed or otherwise reacquired any shares of
capital stock or other securities of the Company.






	3.4	 	Financial Statements.






	 	3.4.1	 	The Company has delivered to the Purchaser the following financial statements and
notes (collectively, the “Company Financial Statements”):






	 	a.	 	The consolidated unaudited balance sheets of the Company as of June 30,
2008, and the related income statements, statements of shareholders’ equity and
statements of cash flows of the Company and V.B. for the periods then ended, the
notes thereto, prepared by the independent accountants Berveling Accountants &
Adviseurs B.V. ;
	 
	 	b.	 	the management accounts of the Company and of V.B. as of December 31,
2008, comprising balance sheet (the “Interim Balance Sheets”), and the
related income statements of the Company and of V.B. for the six months then
ended; and
	 
	 	c.	 	the Bestewil Holding B.V. Consolidated accounts for the six months to
December 31, 2008 and the Consolidated Report Bestewil Holding 2007 (Schedule
3.4.1).






	 	3.4.2	 	The Company Financial Statements and that of V.B. are accurate and complete in all
material respects and present fairly the financial position of the Company and of V.B. as
of the respective dates thereof and the results of operations and cash flows of the Company
and of V.B. for the periods covered thereby. The Company Financial Statements and that of
V.B. have been prepared in accordance with Dutch Accounting Standards applied on a
consistent basis throughout the periods covered.




-22-









 












	3.5	 	Absence of Changes.






	 	3.5.1	 	Since December 31, 2008:






	 	a.	 	there has not been any material adverse change in the Company’s
business, condition, assets, liabilities, operations, financial performance or
prospects;
	 
	 	b.	 	there has not been any material loss, damage or destruction to, or any
material interruption in the use of, any of the Company’s assets (whether or not
covered by insurance);
	 
	 	c.	 	the Company has not declared, accrued, set aside or paid any dividend
or made any other distribution in respect of any shares of capital stock, and has
not repurchased, redeemed or otherwise reacquired any shares of capital stock or
other securities;
	 
	 	d.	 	the Company has not sold, issued or authorized the issuance of (i) any
capital stock or other security, (ii) any option or right to acquire any capital
stock or any other security, or (iii) any instrument convertible into or
exchangeable for any capital stock or other security;
	 
	 	e.	 	there has been no amendment to the Company’s articles of association,
and the Company has not effected or been a party to any acquisition,
recapitalization, reclassification of shares, stock split, reverse stock split or
similar transaction;
	 
	 	f.	 	the Company has not formed any subsidiary or acquired any equity
interest or other interest in any other entity;
	 
	 	g.	 	the Company has not made any capital expenditure which, when added to
all other capital expenditures made on behalf of the Company since December 31,
2008, exceeds € 10,000;
	 
	 	h.	 	the Company has not (i) acquired, leased or licensed any right or other
asset from any other person, (ii) sold or otherwise disposed of, or leased or
licensed, any right or other asset to any other Person, or (iii) waived or
relinquished any right, except










-23-









 












	 	 	 	for immaterial rights or other immaterial assets acquired, leased, licensed or
disposed of in the ordinary course of business and consistent with the Company’s past
practices;
	 
	 	i.	 	the Company has not written off as uncollectible, or established any
extraordinary reserve with respect to, any account receivable or other
indebtedness;
	 
	 	j.	 	the Company has not made any pledge of any of its assets or otherwise
permitted any of its assets to become subject to any encumbrance;
	 
	 	k.	 	the Company has not (i) lent money to any person (other than in the
ordinary course of business), or (ii) incurred or guaranteed any indebtedness for
borrowed money;
	 
	 	l.	 	the Company has not (i) established or adopted any Employee Benefit
Plan, (ii) paid any bonus or made any profit-sharing or similar payment to, or
increased the amount of the wages, salary, commissions, fringe benefits or other
compensation or remuneration payable to, any of its directors, officers or
employees, or (iii) hired any new managers or officers, (iv) dismissed any managers
or officers;
	 
	 	m.	 	the Company has not changed any of its methods of accounting or
accounting practices in any respect;
	 
	 	n.	 	the Company has not commenced or settled any legal proceeding;
	 
	 	o.	 	the Company has not received any notice or other communication
regarding any actual or possible violation or breach of, or default under, any
Company Contract;
	 
	 	p.	 	the Company has not entered into any material transaction or taken any
other material action outside the ordinary course of business or inconsistent with
its past practices; and





-24-








 






	 	q.	 	the Company has not agreed or committed to take any of the actions
referred to in clauses “(c)” through “(p)” above.






	3.6	 	Title to Assets.






	 	3.6.1	 	The Company and VB own, and have good, valid and marketable title to, all assets
purported to be owned by them, including (i) all assets reflected in the Interim Balance
Sheets, (ii) all other assets reflected in the Company’s books and records as being owned
by the Company and (iii) all other assets not reflected in aforementioned documents, in
particular all the Company IP mentioned in this Agreement. All of said assets are owned by
the Company free and clear of any liens or other encumbrances.






	3.7	 	Receivables.






	 	3.7.1	 	All existing accounts receivable of the Company (including those accounts receivable
reflected on the Interim Balance Sheet that have not yet been collected and those accounts
receivable that have arisen since December 31, 2008, and have not yet been collected) (i)
represent valid obligations of customers of the Company arising from bona fide transactions
entered into in the ordinary course of business, (ii) are current and will be collected in
full when due, without any counterclaim or set off..






	3.8	 	Leasehold.






	 	3.8.1	 	The Company does not own any real property or any interest in real property, except
for the leasehold created under the real property lease identified in Schedule
3.8.1.






	3.9	 	Intellectual Property.






	 	3.9.1	 	Schedule 3.9.1 sets forth a complete and correct list of all intellectual
property rights owned by the Company, including but not limited to patents, know-how, trade
secrets and material Standard Operating Procedures (the “Company IP”).




-25-









 












	 	3.9.2	 	Schedule 3.9.2 sets forth a complete and correct list of all contracts
pursuant to which any intellectual property rights are licensed to or by the Company (other
than license agreements for standard, “off-the-shelf” third-party software).
	 
	 	3.9.3	 	The Company exclusively owns all right, title, and interest to and in the Company IP
free and clear of any encumbrances of any nature. Without limiting the generality of the
foregoing:






	 	a.	 	All documents and instruments necessary to register the rights of the
Company in the Company IP have been validly executed, delivered, and filed in a
timely manner with the appropriate governmental body.
	 
	 	b.	 	Each current or former employee or contractor of the Company who is or
was involved in the creation or development of any Company IP has signed a valid,
enforceable agreement containing an assignment of intellectual property rights to
the Company and confidentiality provisions protecting the Company IP. No current
or former stockholder, officer, director, or employee of the Company has any claim,
right (whether or not currently exercisable), or interest to or in any Company IP.
No employee of the Company is (i) bound by or otherwise subject to any contract
restricting him or her from performing his or her duties for the Company or (ii) in
breach of any contract with any former employer or other person concerning
intellectual property rights or confidentiality.
	 
	 	c.	 	Except as disclosed under Section 7, letter c, of Schedule 3,
no funding, facilities, or personnel of any governmental body or any college,
university or other educational institution were used, directly or indirectly, to
develop or create, in whole or in part, any Company IP. In all situations
identified under Section 7, letter c, of Schedule 3 all rights to the
intellectual property or related to the intellectual property have been assigned to
the Company.
	 
	 	d.	 	The Company has taken all reasonable steps to maintain the
confidentiality of and otherwise protect and enforce their rights in all
proprietary information held by the Company, or purported to be held by the
Company, as a trade secret.




-26-









 






	 	e.	 	The Company owns or otherwise has, and after the consummation of the
transactions contemplated by this Agreement, it and/or the Purchaser will have on
the closing date, all intellectual property rights needed to conduct the Company’s
business in the form as executed until the closing date.






	 	3.9.4	 	As of the Closing Date, all granted Company IP is valid, subsisting, and enforceable.
Without limiting the generality of the foregoing.






	 	a.	 	No trademark (whether registered or unregistered) or trade name owned,
used, or applied for by the Company conflicts or interferes with any trademark
(whether registered or unregistered) or trade name owned, used, or applied for by
any other person.
	 
	 	b.	 	The Company IP that is registered is and at all times has been in
compliance with all material legal requirements, and all filings, payments, and
other actions required to be made or taken to maintain such Company IP in full
force and effect have been made by the applicable deadline. No application for a
patent, patent design or trademark registration filed by or on behalf of the
Company or its Subsidiaries has been abandoned or allowed to lapse.
	 
	 	c.	 	No interference, opposition, reissue, reexamination, or other
proceeding of any nature is or has been pending or threatened, in which the scope,
validity, or enforceability of any Company IP is being, has been, or could
reasonably be expected to be contested or challenged. There is no basis for a claim
that any Company IP is invalid or unenforceable although no representation is given
regarding whether the patents applications filed by the Company will ultimately be
issued, or will not be issued in a modified form.






	 	3.9.5	 	No person has infringed, misappropriated, or otherwise violated, or is currently
infringing, misappropriating, or otherwise violating, any Company IP.
	 
	 	3.9.6	 	No infringement claim or proceeding, misappropriation claim or proceeding or similar
claim or proceeding is pending and to the Best Knowledge of the Seller and the




-27-









 












	 	 	 	Company, no such infringement, misappropriation or similar claim or proceeding being
threatened against the Company or against any other person that may be entitled to be
indemnified, defended, held harmless or reimbursed by the Company with respect to such
claim or proceeding.






	 	3.9.7	 	The Company has never been notified that it infringes or may infringe on the
intellectual property rights of any other person and the inventions covered by the Company
IP Rights are free or clear of prior third party rights.
	 
	 	3.9.8	 	The agreement dated February 17, 2003, with Solvay Pharmaceuticals B.V. and the
agreement dated October 5, 2005, with the National Cancer Institute are no longer in force
and no intellectual property has ever resulted therefrom.






	3.10	 	Contracts.






	 	3.10.1	 	Schedule 3.10.1 identifies the following contracts which are in existence on the
date hereof (including contracts which are no longer operative but continue to have legal
effect):






	 	a.	 	each contract relating to the acquisition, transfer, use, development,
sharing or license of any technology or any intellectual property right, except for
contracts entered into with customers in the ordinary course of business, save for
standard non disclosure agreements;
	 
	 	b.	 	each contract imposing any restriction on the Company’s right or
ability (A) to compete with any other Person, (B) to acquire any product or other
asset or any services from any other person, to sell any product or other asset to
or perform any services for any other person or to transact business or deal in any
other manner with any other person, or (C) develop or distribute any technology;
	 
	 	c.	 	each contract creating or involving any agency relationship,
distribution arrangement or franchise relationship;
	 
	 	d.	 	each contract relating to the creation of any encumbrance with respect
to any asset of the Company;




-28-









 






	 	e.	 	each contract involving or incorporating any guaranty, any pledge, any
performance or completion bond, any indemnity or any surety arrangement;
	 
	 	f.	 	each contract creating or relating to any partnership or joint venture
or any sharing of revenues, profits, losses, costs or liabilities;
	 
	 	g.	 	each contract relating to the purchase or sale of any product or other
asset by or to, or the performance of any services by or for, any related party
(such as shareholders of the Company, directors, officers);
	 
	 	h.	 	any contract that was entered into outside the ordinary course of
business or was inconsistent with the Company’s past practices;
	 
	 	i.	 	any other material contract that has a term of more than 60 days and
that may not be terminated by the Company (without penalty) within 60 days after
the delivery of a termination notice by the Company;
	 
	 	j.	 	any other contract that contemplates or involves (A) the payment or
delivery of cash or other consideration in an amount or having a value in excess of
EUR 10’000.- in the aggregate, or (B) the performance of services having a value in
excess of EUR 10’000.- in the aggregate.
	 
	 	k.	 	each real property lease and each equipment lease.
	 
	 	l.	 	each loan agreement with any person.






Contracts in the respective categories described in clauses “(a)” through “(l)” above are
referred to in this Agreement as “Material Contracts”.




	 	3.10.2	 	Each Material Contract is valid and in full force and effect, and, to the Best Knowledge
of the Company and the Seller, is enforceable by the Company in accordance with its terms,
subject to (i) laws of general application relating to bankruptcy, insolvency and the
relief of debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.




-29-









 












	 	3.10.3	 	The seller represents and warrants that:






	 	a.	 	the Company has not violated or breached, or committed any default
under, any contract, and, to the Best Knowledge of the Seller, no counterparty has
violated or breached, or committed any default under, any contract with the
Company;
	 
	 	b.	 	to the Best Knowledge of the Seller, no event has occurred, and no
circumstance or condition exists, that (with or without notice or lapse of time)
will, or could reasonably be expected to, (i) result in a violation or breach of
any of the provisions of any Company contract, (ii) give any person the right to
declare a default or exercise any remedy under any Company contract, or (iii) give
any person the right to accelerate the maturity or performance of any Company
contract, or (iv) give any Person the right to cancel, terminate or modify any
Company contract; and
	 
	 	c.	 	the Company has not waived any of its material rights under any
Material Contract.






	 	3.10.4	 	The Company will not owe any termination, severance or cancellation fees or penalties as
a result of termination or expiration of any Material Contract in accordance with its
terms.
	 
	 	3.10.5	 	Bestewil and/or V.B. have not entered into any collaboration agreement with third parties
prior to the Seller becoming the owner of Bestewil and, consequently, all IP relating to
the Company’s or to V.B.’s business activity arising as result of collaboration agreements
remains with V.B. or the Company.
	 
	 	3.10.6	 	The funding received by V.B. in the amount of EUR 100’000.- in the context of the Ti
Pharma project does not expose it to any risk that the European Commission might order the
Dutch government to reclaim the funds provided.






	3.11	 	Liabilities.






	 	3.11.1	 	The Company has no material accrued, contingent or other liabilities of any nature,
either matured or unmatured, except for: (a) liabilities identified as such in the
“liabilities” identified in the Company Interim Balance Sheets; (b) accounts payable or






-30-











 





	 	 	 	accruals that have been incurred by the Company since December 31, 2008, in the ordinary
course of business and consistent with the Company’s past practices.






3.12 Compliance with legal requirements.





	 	3.12.1	 	The Company is, and has at all times been, in compliance with all applicable legal
requirements, except where the failure to comply with such legal requirements has not had
and will not have a material adverse effect on the Company. The Company has not received
any notice or other communication from any governmental body regarding any actual or
possible violation of, or failure to comply with, any legal requirement. The Company has
obtained all official permits and authorizations required to conduct its activities, in
particular all authorizations required to conduct laboratory studies with potentially
infectious biological materials.





3.13 Tax Matters.





	 	3.13.1	 	All tax returns required to be filed by or on behalf of the Company have been (and as of
the Closing Date will have been) properly prepared and duly and timely filed with the
appropriate taxing authorities in all jurisdictions in which such tax returns are required
to be filed, and all such tax returns were (and as of the Closing Date will be) true,
correct and complete in all material respects; (ii) all taxes due and payable by or on
behalf of the Company have been timely paid in full; (iii) full reserves and accruals have
been provided in the books of the Company for all actual and contingent liabilities for
taxes, including but not limited to taxes to be paid on constructive dividends paid by the
Company to the Seller or third parties and for any taxes to be paid by the Company or its
Subsidiaries due to any reassessments for tax periods before the Closing Date; (iv) the
Company has not executed or filed with any taxing authority any agreement, waiver or other
document or arrangement extending or having the effect of extending the period for
assessment or collection of taxes (including, but not limited to, any applicable statute of
limitations), and no power of attorney with respect to any tax matter is currently in
force.




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	 	3.13.2	 	The Company has complied with all applicable legal requirements relating to the payment
and withholding of taxes and has duly and timely withheld from employee salaries, wages and
other compensation and has paid over to the appropriate taxing authorities all amounts
required to be so withheld and paid over for all periods under all applicable legal
requirements.
	 
	 	3.13.3	 	All deficiencies asserted or assessments made as a result of any examinations by any
taxing authority of the tax returns of or covering or including the Company have been fully
and timely paid, and there are no other audits or investigations by any taxing authority in
progress, nor has the Company received any notice from any taxing authority that it intends
to conduct such an audit or investigation.
	 
	 	3.13.4	 	The Company has not (i) agreed to or is not required to make any adjustments to its
taxable income by reason of a change in accounting method initiated by the Company or has
received any written notice that a taxing authority has proposed any such adjustment or
change in accounting method, or has any application pending with any taxing authority
requesting permission for any changes in accounting methods, (ii) executed or entered into
a closing agreement with any taxing authority concerning the payment of taxes or the
treatment of a particular item for tax purposes, or (iii) requested any extension of time
within which to file any tax return, which tax return has since not been filed by the
extended due date.
	 
	 	3.13.5	 	The Company is not a party to any tax sharing or similar agreement or arrangement
(whether or not written) pursuant to which it will have any obligation to make any payments
after the Closing.
	 
	 	3.13.6	 	The Company is not subject to any ruling by any taxing authority.
	 
	 	3.13.7	 	There are no liens as a result of any unpaid taxes upon any of the assets of the Company.
	 
	 	3.13.8	 	The Company has not distributed or caused to be distributed any hidden dividend, nor
distributed or granted any other benefit to the Seller or any other person which could lead
to the imposition of any withholding taxes on dividends or constructive dividends.




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3.14 Employee and Labor Matters.





	 	3.14.1	 	Schedule 3.14.1 accurately sets forth, with respect to each employee of the
Company (including any employee on layoff status):






	 	a.	 	the name of such employee and the date as of which such employee was
originally hired by the Company;
	 
	 	b.	 	all compensation and benefit owed to such employee including any future
increase thereof pursuant to any law, written or oral agreement; and
	 
	 	c.	 	any signature authority held by such employee.






	 	3.14.2	 	Schedule 3.14.2 accurately identifies each former employee of the Company who is
receiving or is scheduled to receive (or whose spouse or other dependent is receiving or is
scheduled to receive) any benefits from the Company or from any Company pension plan
relating to such former employee’s employment with the Company. Attached to Schedule
3.14.2 is an executed copy of the pension agreement relating to Antonius Stegmann.
	 
	 	3.14.3	 	To the Best Knowledge of the Seller no employee of the Company is a party to or is bound
by any confidentiality agreement, non-competition agreement or other contract (with any
person) that may have an adverse effect on: (i) the performance by such employee of any of
his duties or responsibilities as an employee of the Company; or (ii) the Company’s
business or operations.
	 
	 	3.14.4	 	The Company is not a party to or bound by, and the Company has never been a party to or
bound by, any union contract, collective bargaining agreement or similar contract.
	 
	 	3.14.5	 	The Company is not engaged, and the Company has never been engaged, in any unfair labor
practice of any nature in violation of any legal requirement.
	 
	 	3.14.6	 	None of the current or former independent contractors of the Company could be
reclassified as an employee.




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	 	3.14.7	 	The Company (i) is, and at all times has been, in substantial compliance with all
applicable legal requirements respecting employment, employment practices, terms and
conditions of employment and wages and hours, in each case, with respect to Company
employees; (ii) has withheld and reported all amounts required by applicable legal
requirements or by contract to be withheld and reported with respect to wages, salaries and
other payments to Company employees; (iii) is not liable for any arrears of wages, or any
taxes or any penalty for failure to comply with the legal requirements applicable of the
foregoing; and (iv) is not liable for any payment with respect to unemployment compensation
benefits, pension funds, social security premia or other benefits or obligations for
Company employees.
	 
	 	3.14.8	 	The Company has no employees and no obligation toward any party in connection with
current or past employment relationships.
	 
	 	3.14.9	 	As of the Closing Date, all obligations of V.B toward its employees and consultants,
especially the remuneration obligations and, as the case may be, social security
obligations, of V.B. toward Antonius Stegmann, Jan Wilschut, and Tjarko Meijerhof shall
have been executed.





3.15 Insurance.





	 	3.15.1	 	Schedule 3.15.1 identifies all insurance policies maintained by, at the expense
of or for the benefit of the Company and identifies any material claims made thereunder.
Since December 31, 2006, the Company has not received any notice or other communication
regarding any actual or possible (a) cancellation or invalidation of any insurance policy,
(b) refusal of any coverage or rejection of any claim under any insurance policy, or (c)
material adjustment in the amount of the premiums payable with respect to any insurance
policy.
	 
	 	3.15.2	 	All premiums due in relation to the insurance policies set out in Schedule 3.15.1
have been fully paid and such insurance policies are in full force and effect.




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3.16 Related Party Transactions.





	 	3.16.1	 	(a) no Related Party has, and no Related Party has at any time since December 31, 2006,
had, any direct or indirect interest in any material asset used in or otherwise relating to
the business of the Company; (b) no Related Party is, or has at any time since December 31,
2006, been, indebted to the Company; (c) since December 31, 2006, no Related Party has
entered into, or has had any direct or indirect financial interest in, any Material
Contract, transaction or business dealing involving the Company; (d) no Related Party is
competing, or has at any time since December 31, 2006, competed, directly or indirectly,
with the Company; and (e) no Related Party has any claim or right against the Company.
	 
	 	3.16.2	 	For purposes of this Section 3.16, each of the following shall be deemed to be a “Related
Party”: (i) the Seller; and (ii) each individual who is, or who has at any time since
December 31, 2006, been, an officer or board member of the Company; (iii) each member of
the immediate family of each of the individuals referred to in clauses “(ii)” above; and
(iv) any trust or other entity (other than the Company) in which any one of the individuals
referred to in clauses “(i)”, “(ii)” and “(iii)” above holds (or in which more than one of
such individuals collectively hold), beneficially or otherwise, a material voting,
proprietary or equity interest.





3.17 Legal Proceedings; Orders.





	 	3.17.1	 	There is no pending legal proceeding, and (to the Best Knowledge of the Seller) nobody
has threatened to commence any legal proceeding: (i) that involves the Company and/or V.B.
or any of the assets owned or used by the Company and/or V.B. or any person whose liability
the Company and/or V.B. has or may have retained or assumed, either contractually or by
operation of law; or (ii) that challenges, or that may have the effect of preventing,
delaying, making illegal or otherwise interfering with any of the other transactions
contemplated by this Agreement. To the Best Knowledge of the Seller, no event has occurred,
and no claim, dispute or other condition or circumstance exists, that




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	 	 	 	will, or that could
reasonably be expected to, give rise to or serve as a basis for the commencement of any
such legal proceeding.





3.18 Authority; Binding Nature of Agreement.





	 	3.18.1	 	The Seller has the absolute and unrestricted right, power and authority to enter into and
to perform its obligations under this Agreement; and the execution, delivery and
performance by the Seller of this Agreement have been duly authorized by all necessary
action on the part of the Seller and its board of directors, subject to shareholder
approval. This Agreement constitutes the legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of debtors, and (ii)
rules of law governing specific performance, injunctive relief and other equitable
remedies.





3.19 Insolvency.





	 	3.19.1	 	The Company is not or is not threatened to be, or has in the last five (5) years not been
or has not been threatened to be, in a state of insolvency, or cessation of payment, nor
has been or is subject to any bankruptcy, receivership or moratorium proceedings.
	 
	 	3.19.2	 	No order has been notified and no resolution has been passed for the winding up of the
Company or for a provisional liquidator to be appointed in respect of the Company and no
petition has been presented and no meeting has been convened for the purpose of winding up
the Company.
	 
	 	3.19.3	 	There are no reasons that any of the events described in this Section shall occur based
on facts having occurred prior to the Effective Date and the Closing Date respectively.





3.20 Social Security Contributions and Pension Plans.





	 	3.20.1	 	Any and all returns and reports related to social security contributions that are
required to be filed with respect to the Company have been timely and correctly filed.
	 
	 	3.20.2	 	The Company has paid in full any and all social security contributions and required
contributions to Company pension plans as and when due and no funding deficiency or




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	 	 	 	arrearage exists with respect to any Company pension plan which results or may result in
any liability of the Company. No social security authority is now asserting any deficiency
or claim for additional social security contributions (or penalties or interest in
connection therewith). The Company has no obligation in the field of pension except those
towards Antonius Stegmann, which obligations have been timely and fully complied with by
the Company.
	 
	 	3.20.3	 	There are no facts or circumstances existing or having arisen prior to the Effective Date
and the Closing Date which have or may lead to a reassessment by any social security
authority of social security contributions to be made by the Company relating to any period
prior to the Closing Date.
	 
	 	3.20.4	 	The Company is meeting all its obligations under the pension plans and has paid or
provisioned all contributions and other material amounts required as stipulated by the
regulations of the Company pension plans, and no such amounts are in arrears.
	 
	 	3.20.5	 	The records of the Company pension plan have been properly and accurately maintained, and
there are no actions, suits or claims outstanding, pending or threatened in relation to the
Company pension plan nor any circumstances which might give rise to any such claims.





3.21 No Broker; No Transaction Expenses.





	 	3.21.1	 	The Company does not have any obligation or liability to pay any fees or commissions to
any broker or finder in respect of the transactions contemplated in this Agreement. The
Company has not and shall not incur, or otherwise become obligated of, any fees,
commissions or other expenses in connection with the execution, delivery or performance of
this Agreement.





3.22 Capacity of the Seller, Title to Shares, No Conflict.





	 	3.22.1	 	The Seller has the right, full power, legal capacity and authority to sell, transfer and
deliver to the Purchaser complete title to the totality of the Shares of the Company and to
perform all other obligations and undertakings under this Agreement and all




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	 	 	 	agreements and
documents to which the Seller is a party that are required to be executed pursuant to this
Agreement.
	 
	 	3.22.2	 	This Agreement has been duly executed and delivered by the Seller. This Agreement when
executed by the Seller will constitute a valid, legal and binding obligation of the Seller,
enforceable in accordance with its terms.
	 
	 	3.22.3	 	No consent, approval, permit, order or authorization from, or registration, declaration
or filing with, any governmental authority or any other person, governmental or otherwise,
is necessary or required to be made or obtained by the Seller to lawfully execute and
deliver, enter into, and to perform its obligations under, this Agreement save for
shareholders approval.
	 
	 	3.22.4	 	The Seller is the legal and beneficial owner of and has good and marketable title to the
totality of the Shares of the Company, free and clear of any encumbrance, options,
warrants, purchase rights, contracts, commitments, claims, and demands and holds no other
capital stock of the Company, directly or indirectly. Other than this Agreement, there are
no options, warrants, preemptive rights, purchase rights, calls, subscriptions, convertible
securities, obligations or other rights, agreements or commitments that obligate the Seller
to transfer or sell any Shares. The Seller is not a party to any voting trust, proxy, or
other agreement or understanding with respect to the voting of any capital stock of the
Company.
	 
	 	3.22.5	 	There is no action, suit, arbitration, mediation, proceeding, written asserted claim
against the Company or to which the Company is a party or, to the Best Knowledge of the
Seller, investigation relating to or arising from the Seller’s ownership of the Shares
pending against the Seller before any court, governmental authority or arbitrator, nor, to
the Best Knowledge of the Seller, has any such action, suit arbitration, mediation,
proceeding, claim or investigation been threatened. There is no judgment, decree,
injunction, rule or order of any court, governmental authority or arbitrator relating to or
arising from the Seller’s ownership of Shares outstanding against the Seller. To the Best
Knowledge of the Seller, there is no basis for any person to assert a claim against the
Seller based upon: (i) the Seller’s entering into this Agreement any of the transactions






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	 	 	 	contemplated by this Agreement; (ii) any claim that the Seller has agreed to sell or dispose of
all or any portion of its Shares to any party other than Purchaser, whether by way of
merger, consolidation, sale or securities or otherwise; (iii) any rights under any
agreement among the Company and the Seller; or (iv) a claim of ownership of, or options,
warrants or other rights to acquire ownership of, any shares of the capital stock of the
Company held by the Seller, including any option, warrant or preemptive rights.
	 
	 	3.22.6	 	The execution of this Agreement by the Seller does not violate (where applicable) any
provisions of the articles of incorporation or by-laws of the Seller or any shareholders’
agreements or any similar agreement to which the Seller is a party.





3.23 Full Disclosure.





	 	3.23.1	 	This Agreement does not, and the Closing Certificate will not, (i) contain any
representation, warranty or information that is false or misleading with respect to any
material fact, or (ii) omit to state any material fact or necessary in order to make the
representations, warranties and information contained and to be contained herein and
therein (in the light of the circumstances under which such representations, warranties and
information were or will be made or provided) not false or misleading.





4 Representations and Warranties of the Purchaser




4.1 Incorporation and Authority.





	 	4.1.1	 	The Purchaser is duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the full corporate power and authority to enter into, to
carry out its obligations and to consummate the transactions contemplated, under this
Agreement. This Agreement, upon execution by the Purchaser, will constitute the legal,
valid and binding obligations of the Purchaser, enforceable against the Purchaser in
accordance with its terms and conditions.
	 
	 	4.1.2	 	The execution and delivery by the Purchaser of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary




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	 	 	 	corporate action by the Purchaser and do not require approval of the shareholders of
Purchaser. Upon execution and delivery by the Purchaser this Agreement will constitute the
legal, valid and binding obligations of the Purchaser, enforceable in accordance with
their terms.
	 
	 	4.1.3	 	The Purchaser has, and/or will have available to it as of the Closing Date, all funds
necessary to consummate the transactions contemplated by this Agreement.





5 Covenants of the Parties




5.1 Conduct between the Effective Date and the Closing Date.





	 	5.1.1	 	For the period between the Effective Date and the Closing Date (the “Pre-Closing
Period”), the Company shall (and the Seller shall cause the Company to) conduct the
business of the Company in the ordinary and usual course of business, consistent with the
practice in the past 12 months prior to the Effective Date, and shall not (and the Seller
shall not cause or permit the Company to) conduct extraordinary business transactions,
without the prior written approval of the Purchaser not to be unreasonably withheld.
Without limiting the generality of the foregoing, except as expressly contemplated by this
Agreement, during the Pre-Closing Period the Company shall (and the Seller shall cause the
Company to) (i) preserve intact in all material respects the current business organization
of the Company, (ii) keep available the services of its current officers, (iii) maintain
good relations and goodwill with all suppliers, customers, landlords, creditors, licensors,
licensees, employees, independent contractors and other person having business
relationships with them relating, and (iv) promptly repair, restore or replace any assets
that are destroyed or damaged. Without limiting the generality of the foregoing, during the
Pre-Closing Period, the Company shall not (and the Seller shall not cause or permit the
Company to):






	 	a.	 	make any changes to the financial condition, assets, liabilities, or operations of
the Company, other than changes in the ordinary course of business;





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	 	b.	 	make any changes that could reasonably be expected to have a material adverse
effect on the Company;
	 
	 	c.	 	permit any of its material assets to be subjected to any encumbrance of any kind,
except for those arising by operation of law;
	 
	 	d.	 	make any investment in fixed assets or commitment therefore or entered into any
material contract, agreement or commitment in fixed assets in excess of the 2008 /2009
budget;
	 
	 	e.	 	grant any increase in wages, salaries, bonus or other remuneration paid or payable
by the Company to any of their managers, employees or directors, nor make any other
material changes in the terms of employment of any employee, manager or director of the
Company other than in accordance with existing agreements;
	 
	 	f.	 	hire or terminate any director or manager of the Company;
	 
	 	g.	 	amend, other than in the ordinary course of business, or terminate any Material
Contract;
	 
	 	h.	 	enter into new Material Contracts, other than in the ordinary course of business
and on terms and conditions consistent with the Company or the Subsidiaries’ past
business practice;
	 
	 	i.	 	except for non-exclusive licenses for the Company’s products made in the ordinary
course of business and on terms and conditions consistent with the Company’s past
business practice, sell, transfer, lease or otherwise dispose of the Company IP Right or
any other material asset;
	 
	 	j.	 	make any material change in the collection, payment or credit practices of the
Company or in the accounting practices, procedures or methods of the Company or its
Subsidiaries;
	 
	 	k.	 	settle any material tax dispute or issue;
	 
	 	l.	 	waive any debts, claims or rights;





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	 	m.	 	make any declaration or setting aside or payment of any dividend or any other
distribution of profit;
	 
	 	n.	 	do anything that could interfere with the consummation of the transactions
contemplated by this Agreement;
	 
	 	o. 	 	 issue any stock options, shares of capital stock or any other right to purchase or
receive capital stock of the Company; or
	 
	 	p.	 	agree, whether or not in writing, to do any of the foregoing.






	 	5.1.2	 	The Seller and the Company shall notify the Purchaser of any employee departure or any
material event that occurs between the Effective Date and the Closing Date.





5.2 Restriction of Announcement.



	 	5.2.1	 	Each of the Parties undertakes that prior to the Closing Date it will not make any
announcement in connection with this Agreement unless required by applicable mandatory law
or regulations unless the other Party hereto has given its respective consent to such
announcement, including the form of such announcement, which consent may not be
unreasonably withheld. If and to the extent any announcement or disclosure of information
regarding the subject matter of this Agreement is to be made under applicable mandatory
laws, in particular any applicable stock exchange rules, the Party being concerned shall
not disclose any such information without prior consultation with the other Party.





5.3 Access to Information Prior to the Closing Date.





	 	5.3.1	 	During the Pre-Closing Period, upon reasonable notice, the Company and the Seller
shall, and shall cause the Company’s managers, employees or directors and accountants to
provide to the representatives of the Purchaser such additional financial and operating
data and other information regarding the assets, properties, good will and business of the
Company as requested by the Purchaser. Without limiting the foregoing, the Company will
permit (and will cause each of its Subsidiaries to permit) representatives of the





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	 	 	 	Purchaser to have full access at all reasonable times, and in a manner so as not to
unreasonably interfere with the normal business operations of the Company, to all
premises, properties, personnel, books, records (including tax records), contracts, and
documents of or pertaining to each of the Company, as well as the IP dockets/files of the
Company and/or V.B., at their premises or their intellectual property counsels’ offices.





5.4 Co-operation.





	 	5.4.1	 	Upon and after the Closing Date, the Seller, the Company and the Purchaser shall each
use their best endeavors to execute and deliver or procure to be done, executed and
delivered all such further acts, deeds, documents, instruments of conveyance, assignment
and transfer and actions (including meetings with the management of the Company or the
Subsidiaries) as may be reasonably necessary to implement the terms of this Agreement and
to put control of the Company in the hands of the Purchaser





5.5 Confidentiality.





	 	5.5.1	 	Unless explicitly agreed otherwise in this Agreement, the Parties shall keep the
content of this Agreement and all information received in connection with investigations
and negotiations for this Agreement strictly confidential, and undertake to impose the same
confidentiality obligations on their affiliates and the Company, and on the directors,
officers, employees and advisors of the Parties. However, the provisions of this Section
shall not apply to the relevant Party in relation to any information:






	 	a.	 	that is or becomes publicly available other than as a result of a
breach of this Section 5.5; or
	 
	 	b.	 	that becomes available to that Party on a non-confidential basis from a
source that is not prohibited from disclosing such information by a legal,
contractual or fiduciary obligation (it being understood that all information
regarding the Company is held by the Seller on a confidential basis); or
	 
	 	c.	 	that has to be disclosed by that Party based on applicable law or an
order of a court, government or stock exchange authority or is disclosed to such
court or authority in




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	 	 	 	circumstances where such disclosure reasonably aims to prevent material damage; or
	 
	 	d.	 	with respect to which that Party is able to demonstrate that such
information was developed or acquired by it or any of its affiliates independently
from the Company and the information obtained in connection with the transactions
contemplated under this Agreement; or
	 
	 	e.	 	that relates exclusively to that Party or its business operations and
that does not constitute a business secret for the Company and/or its business.





5.6 Non-competition.





	 	5.6.1	 	During the period commencing on the Closing Date and ending on the 3rd
(third) anniversary of the Closing Date, the Seller shall not — and shall cause its
affiliates, for so long as they qualify as affiliates, not to — directly or indirectly
carry on researching or developing vaccines based upon the use of virosomes (the
“Relevant Business”).





5.7 Non-solicitation.





	 	5.7.1	 	During the period commencing on the Effective Date and ending on the 5th
(fifth) anniversary of the Closing Date, the Seller shall not — and shall cause its
affiliates, for so long as they qualify as affiliates, not to — directly or indirectly
approach or solicit any customer, client, sales agent or supplier of the Company or attempt
to entice any customer, client, sales agent or supplier away from the Company, in each
case, in respect of the Relevant Business.






	 	5.7.2	 	During the period commencing on the Effective Date and ending on the 5th
(fifth) anniversary of the Closing Date, the Seller shall not — and shall cause its
affiliates, for so long as they qualify as affiliates, not to — directly or indirectly (i)
solicit for employment or any similar arrangement or hire any director, executive officer
or employee of the Company or (ii) hire any person for, or assist any other person in,
soliciting any employee of the Company.






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	5.8	 	Reciprocal assistance in relation with mandatory filings and reporting.






	 	5.8.1	 	Each Party shall give to the other Party the reasonably required access to the
information and documents in its possession (and those in the possession of its contractors
such as Berveling Accountants & Adviseurs B.V., as far as it is possible) and necessary for
that other Party to be able to make the mandatory filings and reporting, namely in the
accounting and regulatory fields. The external auditors of the Parties shall be entitled to
exchange the information and documents required for the purpose of this Section.






	6	 	Indemnification
	 
	6.1	 	Indemnification by the Seller.






	 	6.1.1	 	All of the representations and warranties of the Company and the Seller contained in
this Agreement shall survive the Closing hereunder and continue in full force and effect
until 18 (eighteen) months after the Closing Date, except for representation and warranties
set forth in Section 3.13 or Sections 3.20.1 through 3.20.3 where they shall continue in
full force and effect until six months after the expiry of the applicable statute of
limitations (the “Expiration Date”); provided, however, that if a Claim Notice (as
defined below) relating to any representation or warranty is given to the Seller on or
prior to 18 (eighteen) months after the Closing Date (or for the representations and
warranties set forth in Sections 3.13 and 3.20.1 through 3.20.3, six months after the
expiry of the applicable statute of limitations), then, notwithstanding anything to the
contrary contained in this Section 6, such representation or warranty shall not so expire,
but rather shall remain in full force and effect until such time as each and every claim
that is based directly or indirectly upon, or that relates directly or indirectly to, any
breach or alleged breach of such representation or warranty has been fully and finally
resolved, either by means of a written settlement agreement executed on behalf of the
Seller and the Purchaser or by means of a final, non-appealable judgment issued by a court
of competent jurisdiction. All of the representations and warranties of the Purchaser




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	 	 	 	contained in this Agreement shall expire at the Expiration Date, and shall thereafter be
of no further force or effect.
	 
	 	6.1.2	 	Subject to Section 6.1.4, the Seller shall hold harmless and indemnify the Purchaser
from and against, and shall compensate and reimburse the Purchaser for, any losses that are
directly or indirectly suffered or incurred by the Purchaser or to which it otherwise
becomes subject at any time (regardless of whether or not such losses relate to any
third-party claim) and that arise directly or indirectly from or as a direct or indirect
result of, or are directly or indirectly connected with:






	 	a.	 	any breach of any of the representations or warranties made by the
Seller in this Agreement both as of the date of this Agreement and as of the
Closing Date as if made on and as of the Closing Date;
	 
	 	b.	 	any breach of any of the covenants or obligations of the Company or the
Seller contained in this Agreement; or
	 
	 	c.	 	any Proceeding relating directly or indirectly to any breach, alleged
breach, liability or matter of the type referred to in the preceding clauses of
this Section 6.1.2 (including any proceeding commenced by the Purchaser for the
purpose of enforcing any of its rights under this Section 6).






	 	6.1.3	 	The Seller’s liability under this Section 6.1 shall apply only to the losses which in
the aggregate exceed EUR 100,000 (one hundred thousand Euro’s), composed of losses which
individually exceed EUR 10,000 (ten thousand Euro’s) (the “Threshold”). If the
losses are greater than the Threshold, the Seller will be obligated to indemnify the
Purchaser from and against all such losses, from the first Euro. All and any losses will be
taken into account to compute the Threshold, irrespective of the amount of each individual
losses.
	 
	 	6.1.4	 	The aggregate Seller’s liability under this Agreement shall not exceed EUR 5,000,000
(five million) Euros) (the “Cap”). In cases of fraud, gross negligence, or willful
misconduct or intentional breaches of this Agreement, the aggregate Seller’s liability for
any breach of this Agreement or other matter for which indemnification is provided for




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	 	 	 	hereunder shall be capped at the total consideration paid by the Purchaser to the Seller
pursuant to this Agreement.
	 
	 	6.1.5	 	Neither the Threshold nor the Cap shall be applicable to the Seller’s liability under
Sections 3.3, 3.22.1 and 3.22.4. Seller’s indemnification obligation of these Sections
shall be capped at the amount actually paid by Purchaser to Seller pursuant to this
Agreement.
	 
	 	6.1.6	 	Any claim of the Purchaser for indemnification hereunder shall be subject to reduction
to the extent that (i) an amount in respect of the claim is actually recovered under an
insurance policy covering the relevant risk in force on or prior to the Closing Date
(provided that the amount of such reduction shall be subject to offset for any increases in
any insurance premiums or other costs incurred by the Company or the Purchaser on account
of the making of a claim under any such insurance policy), (ii) the losses covered by such
claim shall have been caused solely by acts or omissions of the Purchaser after the Closing
(except where the Seller approved such acts or omissions in writing) and shall not have
arisen directly or indirectly from or as a direct or indirect result of, and shall not be
directly or indirectly connected with, any of the matters set forth in Section 6.1.2, or
(iii) there has been recorded in the Interim Balance Sheet, by way of a specific provision
clearly identified in the Interim Balance Sheet, a particular item of exceptional
depreciation that is directly and solely attributable to the subject matter of the claim
(and excluding in any event normal depreciation of tangible and intangible assets), such
reduction not to exceed the amount of such exceptional depreciation.
	 
	 	6.1.7	 	All claims of the Purchaser under or in connection with Section 6 shall be time-barred
and shall lapse on the Expiration Date; provided, however, that claims which have
been duly notified in writing to the Seller with reasonable specificity on or prior the
Expiration Date shall not be time-barred or otherwise lapse.





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	6.2	 	Tax and Social Security Indemnity by Seller.






	 	6.2.1	 	After the Closing Date, the Seller will be responsible for and will indemnify Euro for
Euro and hold harmless Purchaser for and against any and all liabilities, costs and
expenses resulting from, arising out of, or relating to the requalification of Jan
Wilschut’s advisors agreement and/or Tjarko Meijerhof’s outsourcing agreement into an
employment agreement resulting in taxes, social security or labour law liabilities for the
Company.
	 
	 	6.2.2	 	After the Closing Date, the Seller will be responsible for and will indemnify Euro for
Euro and hold harmless the Purchaser for and against any and all liabilities, costs and
expenses resulting from, arising out of, or relating to taxes or social security
contributions of the Company or the Subsidiaries relating back to periods prior to the
Closing Date, to the extent that specific and appropriate provisions relating to Taxes or
Social Security Contributions to which the claim of the Purchaser relates have not been
accounted for in the Financial Statements or Interim Balance Sheets or have not been
incurred in the normal course of V.B’s business after the date of the Interim Balance
Sheets, solely in respect of the employment of Antonius Stegmann, Ellen Goud and Janine
Grashorn for periods from the date of the Interim Balance Sheets to the Closing Date.
	 
	 	6.2.3	 	The Threshold and Cap shall not be applicable to the indemnification obligation of the
Seller under Section 6.2.1 and 6.2.2.






	6.3	 	Claim Notice.






	 	6.3.1	 	As used herein, the term “Claim” shall mean a claim for indemnification of the
Purchaser under this Section 6. Subject to the terms of this Agreement, the Purchaser shall
give written notice of a Claim (a “Notice of Claim”) to the Seller if the Purchaser
wishes to make a claim for indemnification under this Section 6. The Purchaser shall use
reasonable efforts to deliver each Notice of Claim to the Seller within thirty (30) days
after the Purchaser formally determines to make the Claim to which such Notice of Claim
relates.





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	 	6.3.2	 	Each Notice of Claim by the Purchaser given pursuant to Section 6.3.1 shall contain
the following information: (i) that the Purchaser has directly or indirectly incurred or
sustained or, in good faith, believes it shall have to directly or indirectly incur or
sustain losses in an aggregate stated amount arising from such Claim (which amount may be
the amount of damages claimed by a third party in an action brought against the Purchaser
based on alleged facts, which if true, would give rise to liability for losses
indemnifiable under this Section 6); and (ii) a brief description, in reasonable detail (to
the extent reasonably available to the Purchaser), of the facts, circumstances or events
giving rise to the alleged losses based on the Purchaser’s good faith belief thereof.
	 
	 	6.3.3	 	The Purchaser may submit a Notice of Claim at any time during the period commencing
with the Closing Date and ending on the Expiration Date. Notwithstanding anything
contained herein to the contrary, any Claims for losses specified in any Notice of Claim
delivered to the Seller prior to the Expiration Date shall remain outstanding until such
Claims for Losses have been resolved or satisfied, notwithstanding the passage of the
Expiration Date. .
	 
	 	6.3.4	 	If the Seller gives the Purchaser written notice contesting all or any portion of a
Notice of Claim (a “Contested Claim”) or has not replied to the Notice of Claim
within 30 days after receipt of the Notice of Claim (which absence of reply shall be viewed
as a Contested Claim) then such Contested Claim shall be resolved by either (i) a written
settlement agreement executed by the Purchaser and the Seller or (ii) in the absence of
such a written settlement agreement within thirty (30) days following receipt by the
Purchaser of the written notice from the Seller, by a legal proceeding with respect to such
Contested Claim in accordance with Section 8.8.






	6.4	 	Setoff.






	 	6.4.1	 	The Purchaser shall have the right to withhold and deduct any sum that may be owed to
it under this Section 6 from any amount that it would otherwise have to pay to the Seller.
The withholding and deduction of any such sum shall operate for all purposes as a complete
discharge (to the extent of such sum) of the obligation to pay the amount from




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	 	 	 	which such sum was withheld and deducted until final settlement is reached or a final
judgment is rendered by a court of competent jurisdiction under Section 8.8.






	6.5	 	Third Party Claims.






	 	6.5.1	 	In the event of the assertion or commencement by any person of any claim or proceeding
with respect to which the Seller may become obligated to indemnify, hold harmless,
compensate or reimburse the Purchaser pursuant to this Section 6, the Seller shall have the
right, at its election, to assume the defense of such claim or Proceeding. In such event:
(1) all reasonable expenses relating to the defense of such claim or proceeding (whether or
not incurred by the Purchaser or Seller) shall be borne and paid exclusively by the Seller;
(2) the Purchaser shall make available to the Seller any documents and materials in the
possession or control of Purchaser that may be necessary to the defense of such claim or
proceeding; and (3) Seller shall have the right to settle, adjust or compromise such claim
or proceeding with the consent of the Purchaser; provided, however, that the Purchaser
shall not unreasonably withhold or delay such consent.






	6.6	 	Knowledge of Purchaser.






	 	6.6.1	 	The Seller’s liability for indemnification under this Section 6 shall not be affected
by any readily available public information nor by any investigation conducted, or any
knowledge acquired (or capable of being acquired) by the Purchaser at any time, including
between the Effective Date and the Closing Date, with respect to the Company and/or V.B.,
notably with respect to the accuracy or inaccuracy of, or compliance with, any
representation, warranty, agreement, covenant or undertaking of the Purchaser, except for
the clear and unambiguous disclosures made in the Schedules. Article 200 para. 1 of the
Swiss Code of Obligations (CO) shall not apply.
	 
	 	6.6.2	 	The Purchaser declares that on the signing date of this Agreement and on the Closing
Date it does not intend to claim against the Seller on the ground of any breach of the
Representations and Warranties of the Seller of which it would be aware on the signing date
of this Agreement and Closing Date.




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	6.7	 	No recourse






	 	6.7.1.	 	Seller acknowledges that, pursuant to that certain share purchase agreement of 26 October
2006 by which Seller acquired the Shares (“Previous SPA”), Seller still has certain rights in
relation to warranties granted to Seller by Berrink Holding B.V., Toon Stegmann Beheer B.V.
and Jan Wilschut Beheer B.V. Seller covenants towards Purchaser that in the event that any
fact or event occurs that could give rise to a claim by Seller under the Previous SPA, Seller
shall only claim such losses from Berrink Holding B.V., Toon Stegmann Beheer B.V. and Jan
Wilschut Beheer B.V. and shall not in any event take recourse on the Company and/or VB.






	7	 	Termination
	 
	7.1	 	Right to Terminate






	 	7.1.1	 	The Parties may terminate this Agreement as provided below:






	 	a.	 	the Purchaser and the Seller may terminate this Agreement by mutual
written consent at any time prior to the Closing;
	 
	 	b.	 	either the Purchaser or the Seller may terminate this Agreement at any
time prior to the Closing if the transactions contemplated by this Agreement shall
not have been consummated by [April 15, 2009] (the “Termination Date”);
provided, however, that a party shall not be permitted to terminate this Agreement
pursuant to this Section 7.1.1 if the failure to consummate such transactions by
the Termination Date is attributable to a failure on the part of such party to
perform any covenant in this Agreement required to be performed by such party at or
prior to the Closing Date or other breach of any provision of this Agreement by
such party;
	 
	 	c.	 	either the Purchaser or the Seller may terminate this Agreement at any
time prior to the Closing if a court of competent jurisdiction or other
governmental body shall have issued a final and non-appealable order, decree or
ruling, or shall have taken




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	 	 	 	any other action, having the effect of permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement;
	 
	 	d.	 	the Purchaser may terminate this Agreement at any time prior to the
Closing if (i) any of the Seller’s representations and warranties contained in this
Agreement shall be inaccurate in any material respect as of the date of this
Agreement, or shall have become inaccurate in any material respect as of a date
subsequent to the date of this Agreement such that the condition set forth in
Section 2.1.1a would not be satisfied, or (ii) any of the Seller’s covenants
contained in this Agreement shall have been breached such that the condition set
forth in Section 2.1.1d would not be satisfied; and
	 
	 	e.	 	the Seller may terminate this Agreement at any time prior to the
Closing if any of the representations and warranties of the Purchaser contained in
this Agreement shall be inaccurate as of the date of this Agreement, or shall have
become inaccurate as of a date subsequent to the date of this Agreement, such that
the condition set forth in Section 2.1.2a would not be satisfied.
	 
	 	f.	 	In the event of breach of the terms and conditions of this Agreement,
the exclusive remedy of the Parties, in addition to the remedies provided for under
this Agreement, shall be damages under Section 97 and following of the Swiss Code
of Obligations, to the exclusion of the rescission or nullification of this
Agreement which shall only be possible as provided for under Section 28 (fraud —
“dol”) of the Swiss Code of Obligations.






	7.2	 	Termination Procedures






	 	7.2.1	 	If the Purchaser wishes to terminate this Agreement pursuant to Section 7.1.1b,
Section 7.1.1c or Section 7.1.1d, the Purchaser shall deliver to the Seller a written
notice stating that it is terminating this Agreement and setting forth a brief description
of the basis on which it is terminating this Agreement. If the Seller wishes to terminate
this Agreement pursuant to Section 7.1.1b., Section 7.1.1c. or Section 7.1.1e, the Seller
shall deliver to






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	 	 	 	the Purchaser a written notice stating that the Seller is terminating this Agreement and
setting forth a brief description of the basis on which it is terminating this Agreement.






	7.3	 	Effect of Termination.






	 	7.3.1	 	If any Party terminates this Agreement pursuant to Section 7.1.1, all rights and
obligations of the Parties hereunder shall terminate without any liability of any Party to
the other Party (except for any liability of any Party then in breach).






	8	 	Miscellaneous
	 
	8.1	 	Entire Agreement.






	 	8.1.1	 	This Agreement, including the schedules and any other documents referred to herein,
constitutes the entire agreement and understanding among the Parties with respect to the
subject matter hereof, and shall supersede all prior oral and written agreements,
understandings or undertakings of the Parties. This Agreement, including the schedules and
any other documents referred to herein, shall be binding on all successors and assignees of
the Parties. All references to this Agreement shall be deemed to include the schedules.






	8.2	 	Amendment.






	 	8.2.1	 	This Agreement may not be amended or modified except by a document in writing, duly
executed by the Parties hereto.






	8.3	 	Costs and Expenses.






	 	8.3.1	 	All expenses, costs, fees and charges incurred in connection with the hiring of
third-party advisers in connection with the transactions contemplated under this Agreement,
including without limitation, legal services, shall be borne by the Party commissioning the
respective costs, fees and charges. Without limiting the above statement, in no event




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	 	 	 	shall the Company bear any expenses, costs, fees or charges of such third-party advisers in
connection with the transactions contemplated hereby.






	8.4	 	Assignment.






	 	8.4.1	 	Neither Party shall be entitled to assign any rights or claims under this Agreement
without the written consent of the other Party, provided that the Purchaser shall have the
right, without Seller’s prior consent, to assign all or part of its rights and obligations
under this Agreement to one of its affiliates, it being understood that in any such case,
Purchaser shall remain jointly and severally liable for the full, due and proper discharge
of all obligations incumbent upon Purchaser under this Agreement.






	8.5	 	Notices.






	 	8.5.1	 	All notices and other communications hereunder shall be made in writing and shall be
delivered or sent by registered mail, facsimile, or courier to the addresses below or to
such other addresses which may be specified by any Party to the other Party in the future
in writing. Notices given by courier or fax shall be deemed to have been given upon
receipt or confirmation of facsimile transmission. Notices given by registered mail shall
be deemed to have been given on the day of delivery of the mail, or in the absence of or in
the case of refusal of the mail by the addressee, on the seventh day following unsuccessful
delivery of the mail by the post office (délai de garde).





	 	 	 
	If to the Seller:

	 	Norwood Immunology Limited
	 

	 	PO Box 211
	 

	 	Patterson Lakes, Victoria 3197
	 

	 	Australia
	 

	 	Attn. Peter Hansen, Chair
	 
	 	 
	 

	 	Facsimile (UK): +44 8707517116
	 

	 	Attn. Richard Williams, CEO
	 
	 	 
	with copies to:

	 	SteinhauserVandenBrinkHeeziusRijsdijk Advocaten
	 

	 	World Trade Center






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	 	Strawinskylaan 1347
	 

	 	1077 XX Amsterdam
	 

	 	The Netherlands
	 
	 	 
	 

	 	Facsimile: + 31 20 718 3801






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	If to the Purchaser:

	 	Mymetics Corporation
	 

	 	 14 rue de la Colombière
	 

	 	 1260 Nyon
	 

	 	Switzerland
	 

	 	Attn. Christian Rochet, President and CEO
	 
	 	 
	 

	 	Facsimile: +41 22 363 16 11
	 
	 	 
	with copies to:

	 	Lenz & Staehelin
	 

	 	Route de Chêne 30
	 

	 	 1208 Geneva
	 

	 	Switzerland
	 

	 	Attn. Jérome Jotterand
	 
	 
	 	Facsimile: +41 58 450 70 01







	8.6	 	Severability.






	 	8.6.1	 	Should any provision of this Agreement be unenforceable or invalid, such provision
shall be ineffective only to the extent of such non-enforceability or invalidity and be
replaced by such valid and enforceable provision which bona fides parties would consider to
match as closely as possible the invalid or unenforceable provision, attaining the same or
a similar economic effect. The remaining provisions of this Agreement shall under all
circumstances continue to be binding and in full force and effect.






	8.7	 	Governing Law.






	 	8.7.1	 	This Agreement shall be governed by and construed in accordance with the internal laws
(ignoring principles of conflicts of laws) of Switzerland.





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	8.8	 	Jurisdiction.






	 	8.8.1	 	Any dispute, controversy or claim arising out of or in relation to this contract,
including the validity, invalidity, breach or termination thereof, shall be settled by the
ordinary courts of Geneva, subject to an appeal to the Swiss Federal Supreme Court.






	8.9	 	Counterparts.






	 	8.9.1	 	This Agreement is executed in multiple counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same instrument.





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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date
first set forth above.



The Seller :



/s/ Carine van den Brink


 


Carine van den Brink, signing on the authority of the attached
Power of Attorney executed by Norwood Immunology Limited



The Purchaser :



/s/ Christian Rochet

 



Christian Rochet, President and CEO, signing on the authority of
the attached resolution of the Board of Directors of Mymetics
Corporation





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