EXHIBIT 10.26
SECOND AMENDED AND RESTATED
AGREEMENT FOR PLAN OF ARRANGEMENT
BY AND AMONG
BIOMARIN PHARMACEUTICAL INC.
A DELAWARE CORPORATION
BIOMARIN DELIVERY CANADA INC.
A CORPORATION EXISTING UNDER THE LAWS OF CANADA
AND
SYNAPSE TECHNOLOGIES INC.
A CORPORATION EXISTING UNDER THE LAWS OF CANADA
DATED: FEBRUARY 4, 2002
Execution Version
SECOND AMENDED AND RESTATED
AGREEMENT FOR PLAN OF ARRANGEMENT
This SECOND AMENDED AND RESTATED AGREEMENT FOR PLAN OF ARRANGEMENT (this
"Agreement"), dated as of February 4, 2002, is entered into by and among
BioMarin Pharmaceutical Inc., a Delaware corporation ("BioMarin"), BioMarin
Delivery Canada Inc., a corporation existing under the laws of Canada ("Newco")
and Synapse Technologies Inc., a corporation existing under the laws of Canada
(the "Company").
RECITALS
A. Newco is a wholly-owned Subsidiary of BioMarin Holdings (Nova Scotia)
Company, an unlimited liability company existing under the Companies Act (Nova
Scotia) and an indirectly owned Subsidiary of BioMarin ("BioMarin Nova Scotia").
B. Upon the terms and subject to the conditions of this Agreement and in
accordance with the Canada Business Corporations Act (the "CBCA"), BioMarin,
Newco and the Company intend to enter into a business combination transaction by
way of the Arrangement whereby immediately following the Effective Time, each
outstanding Company Common Share and Company Preferred Share that is not held by
a holder who has exercised its Dissenters' Rights and is ultimately entitled to
be paid the fair value of its shares shall be exchanged for BioMarin Common
Shares as set forth herein and one (1) Exchangeable Share.
C. The Board of Directors: (i) has commissioned an opinion from Capital
West Partners that the Arrangement is fair to the shareholders of the Company
from a financial point of view; (ii) has determined that the Arrangement is in
the best interests of the Company and its shareholders; (iii) has unanimously
approved this Agreement, the Arrangement and the other transactions contemplated
by this Agreement; and (iv) has determined to recommend that the shareholders of
the Company adopt and approve the Arrangement.
D. The parties intend, by executing this Agreement, to adopt a plan of
reorganization which shall qualify, in certain respects, for an election
pursuant to Section 85(1) of the Income Tax Act (Canada).
E. BioMarin, the Company and BioMarin Pharmaceutical Delivery Nova
Scotia Company, an unlimited liability company under the laws of Nova Scotia
("Delivery"), previously entered into that certain Agreement for Plan of
Arrangement dated December 21, 2001 (the "Original Agreement"), which was
subsequently amended and restated by such parties by that certain Amended and
Restated Agreement for Plan of Arrangement dated January 14, 2002 (the "First
Amendment Agreement").
F. Pursuant to that certain letter agreement dated as of the date
hereof, by and among BioMarin, Delivery, Newco and the Company, Delivery was
released as a party to the First Amendment Agreement and the Company Ancillary
Agreement, and BioMarin Delivery Canada
Execution Version
Inc. was substituted as "Newco" under the First Amendment Agreement and the
Company Ancillary Agreement.
G. BioMarin, Newco and the Company hereby desire to amend and restate in
its entirety the First Amendment Agreement upon the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the respective covenants and
promises contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used herein, the terms below shall have the
following meanings. Any of such terms, unless the context otherwise requires,
may be used in the singular or plural, depending upon the reference. All
accounting terms defined in this Article I and those accounting terms used in
this Agreement and not defined in this Article I shall, except as otherwise
provided for herein, be construed in accordance with Canadian GAAP. References
herein to an "Article," an "Annex," a "Section," a "Schedule" or an "Exhibit"
are, unless otherwise specified herein, references to an Article of, an Annex
attached to, a Section of, or a Schedule or an Exhibit attached to, this
Agreement or the Company Ancillary Agreement, respectively. All references to
currency herein, unless otherwise indicated, shall be deemed to be in Canadian
dollars, and any required conversions of U.S. dollars or Canadian dollars shall
be made at an agreed upon exchange rate of 0.6397 U.S. Dollars to one (1)
Canadian dollar.
"Action" shall mean any action, claim, suit, litigation,
proceeding, labor dispute, arbitral action, governmental audit, governmental
inquiry (including any request for information), criminal prosecution,
investigation or unfair labor practice charge or complaint.
"Affiliate" shall mean, as to any one Person, another Person
which directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with such Person.
"Arrangement" shall mean an arrangement under Section 192 of the
CBCA on the terms and subject to the conditions set out in this Agreement and
the Plan of Arrangement, subject to any amendments or variations thereto made in
accordance with the provisions of this Agreement or made at the direction of the
Court in the Final Order.
"Arrangement Resolution" means the special resolution of the
holders of shares of each class of the Company's Stock to be substantially in
the form and content of Exhibit A annexed hereto.
"Articles of Arrangement" means the Articles of Arrangement of
the Company in respect of the Arrangement that are required by the CBCA to be
sent to the Director after the Final Order is made.
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"Assets" shall mean the assets and property owned or used by the
Company.
"Balance Sheet" shall mean the audited balance sheet of the
Company as of September 30, 2001 included in the Financial Statements.
"Balance Sheet Date" shall mean September 30, 2001.
"BioMarin Common Shares" shall mean shares of BioMarin's Common
Stock, par value U.S.$0.001 per share.
"Board of Directors" shall mean the board of directors of the
Company.
"Books and Records" shall mean (i) all records and lists
pertaining to the Company, or to customers, suppliers or personnel of the
Company, (ii) all product, business and marketing plans of the Company and (iii)
all books, ledgers, files, reports, plans, drawings and operating records of
every kind maintained by the Company.
"Canadian GAAP" shall mean Canadian generally accepted accounting
principles, consistently applied.
"Canadian Securities Legislation" shall mean the statutory
securities laws in each province of Canada in which shareholders of the Company
reside, together with the regulations promulgated thereunder, together with the
rules, policies, orders and requirements of the securities regulatory
authorities in each such province.
"CBCA" means the Canada Business Corporations Act as now in
effect and as may be amended from time to time prior to the Effective Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
and the rules and regulations thereunder.
"Commissions" shall mean the securities commissions which
administer Canadian Securities Legislation.
"Company Ancillary Agreement" shall mean that certain amended and
restated ancillary agreement which is incorporated herein by reference
containing certain exhibits regarding closing deliveries to be made by the
parties in order to consummate the Transactions, certain schedules attached
thereto as referenced herein and specific additions and exceptions to the
representations and warranties made by the Company in Article IV of this
Agreement, by and among BioMarin, Newco and the Company as of the date of this
Agreement.
"Company Common Shares" shall mean the common shares of the
Company as currently constituted.
"Company Intellectual Property" shall mean any and all
Intellectual Property used in, necessary to the conduct of or being developed by
or for the Company's business.
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"Company Preferred Shares" shall mean the preferred shares,
Series 1 of the Company as currently constituted.
"Company Shareholders" shall mean the holders of all of the
Company Common Shares and Company Preferred Shares.
"Company Shareholders Meeting" shall mean the special meeting of
Company Shareholders, including any adjournment thereof, to be called and held
in accordance with the Interim Order to consider the Arrangement.
"Company Stock Option Plan" means the Company's 1998 stock option
plan, including all amendments thereto.
"Company Stock Options" shall mean all stock options granted by
the Company under the Company Stock Option Plan which are outstanding and vested
at the Effective Time.
"Company Technology" shall have the meaning set forth in the
Exchangeable Shares Terms.
"Company Warrants" means all outstanding warrants to purchase
Company Common Shares.
"Contract" shall mean any oral or written agreement, contract,
note, loan, evidence of indebtedness, guaranty, purchase order, letter of
credit, indenture, security or pledge agreement, franchise agreement, capital or
operating Lease, undertaking, covenant not to compete, employment agreement,
license, instrument, obligation or commitment, to which the Company is a party
or otherwise bound.
"Court" shall mean the Supreme Court of British Columbia.
"Court Order" shall mean any judgment, decision, consent decree,
injunction, ruling or order of any Governmental Authority that is binding on any
Person or its property under applicable law.
"Damages" shall mean all costs, losses, Taxes, Liabilities,
damages, lawsuits, demands, and expenses (whether or not arising out of
third-party claims), including, without limitation, interest, fines, penalties,
costs of mitigation, losses in connection with any Environmental Law (including,
without limitation, any clean-up or remedial action), losses in connection with
any Health Law, other losses resulting from any shutdown or curtailment of
operations, attorneys' fees and all amounts paid in investigation, defense or
settlement of any of the foregoing.
"Default" shall mean (i) a breach of or default under any
Contract, (ii) the occurrence of an event that with the passage of time or the
giving of notice or both would constitute a breach of or default under any
Contract, or (iii) the occurrence of an event that with or without the passage
of time or the giving of notice or both would give rise to a right of
termination or acceleration under any Contract.
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"Director" shall mean the director appointed pursuant to the
CBCA.
"Effective Date" shall mean the date shown on the certificate of
arrangement to be issued by the Director under the CBCA giving effect to the
Arrangement.
"Effective Time" has the meaning ascribed thereto in the Plan of
Arrangement.
"Encumbrance" shall mean any claim, lien, pledge, option, charge,
easement, restriction, security interest, deed of trust, mortgage, right-of-way,
encroachment, building or use restriction, conditional sales agreement,
encumbrance or other right of third parties, whether voluntarily incurred or
arising by operation of law, and includes, without limitation, any agreement to
give any of the foregoing in the future.
"Environmental Law" shall mean any applicable Regulation which
regulates or relates to the protection or clean-up of the environment, the use,
treatment, storage, transportation, generation, manufacture, processing,
distribution, handling or disposal of, or emission, discharge or other release
or threatened release of, Hazardous Substances, the preservation or protection
of waterways, groundwater, drinking water, air, wildlife, plants or other
natural resources, or the health and safety of persons or property, including,
without limitation, protection of the health and safety of employees.
"Exchangeable Shares" shall mean the Class A preferred shares of
Newco without nominal or par value in the capital of Newco with the rights and
preferences set forth on Exhibit B hereto (the "Exchangeable Shares Terms").
"Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Exchange Ratio" means the quotient obtained by dividing (i) the
amount, as converted to U.S. dollars, by which the aggregate stated capital of
the Company of $15,914,752 (as such stated capital may be increased by the
aggregate cash exercise prices actually received by the Company after the date
of this Agreement and prior to the Effective Time from the exercise of any
Company Stock Options outstanding as of the date of this Agreement pursuant to
and in accordance with the terms of the Company Stock Option Plan and the
related option agreements) exceeds the Preferred Return Amount, divided by the
total number of issued and outstanding Company Common Shares and Company
Preferred Shares at the Effective Time, by (ii) U.S.$11.50 rounded to the
nearest seven decimal places.
"Fair Market Value" shall mean the average of the closing prices
of one (1) BioMarin Common Share on Nasdaq over the twenty (20) business day
period concluding on the date for which the "Fair Market Value" is being
determined. The term "business day" as used in the immediately preceding
sentence means business days on which Nasdaq is open for trading.
"Final Order" shall mean the final order of the Court approving
the Arrangement as such order may be amended at any time prior to the Effective
Date or, if appealed, then, unless such appeal is withdrawn or denied, as
affirmed.
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"Financial Statements" shall mean the audited balance sheets of
the Company as of September 30, 2001, 2000 and 1999 and the related audited
statements of loss and deficit and cash flows for the fiscal years ended
September 30, 2001, 2000 and 1999.
"Governmental Authority" shall mean any local, state, federal or
foreign (i) court, (ii) government or (iii) governmental department, commission,
instrumentality, administrative body, board, agency or authority, including any
taxing authority.
"Hazardous Substance" shall mean any pollutant, contaminant,
chemical, waste and any toxic, infectious, carcinogenic, reactive, corrosive,
ignitable or flammable chemical or chemical compound or hazardous substance,
material or waste, whether solid, liquid or gas, including, without limitation,
any quantity of asbestos in any form, urea formaldehyde, PCB's, radon gas, crude
oil or any fraction thereof, all forms of natural gas, petroleum products or
by-products or derivatives, radioactive substance or material, pesticide waste
waters, sludge, slag and any other substance, material or waste that is subject
to regulation, control or remediation under any Environmental Law.
"Health Laws" shall mean any applicable Regulations which
regulate or relate to health and human safety.
"HSR Act" shall mean the United States ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
thereunder.
"Insurance Policies" shall mean the insurance policies of the
Company, including but not limited to its policies or binders of fire,
liability, property, title, worker's compensation, product liability and other
forms of insurance.
"Intellectual Property" shall mean any or all of the following
and all rights in, arising out of, or associated therewith: (i) all United
States, Canadian and other patents (including utility models, supplementary
protection certificates and applications therefor) and all reissues, divisions,
renewals, extensions, provisionals, continuations and continuations-in-part
thereof, and equivalent or similar rights anywhere in the world in inventions
and discoveries ("Patents"); (ii) all inventions (whether patentable or not),
improvements, trade secrets, proprietary information, know-how, technology,
technical data and customer lists, and all documentation embodying or evidencing
any of the foregoing ("Trade Secrets"); (iii) all copyrights, copyright
registrations and applications therefor and all other rights corresponding
thereto throughout the world ("Copyrights"); (iv) all mask works, mask work
registrations and applications therefor, and any equivalent or similar rights in
semiconductor masks, layouts, architectures or topology ("Maskworks"); (v) all
industrial designs and any registrations and applications therefor throughout
the world; (vi) all trade names, logos, common law trademarks and service marks,
trademark and service ▇▇▇▇ registrations and applications therefor and all
goodwill associated therewith throughout the world ("Trademarks"); (vii) all
rights in databases and data collections throughout the world; (viii) all
Software; and (ix) any similar, corresponding or equivalent rights to any of the
foregoing anywhere in the world.
"Interim Order" means the interim order of the Court in respect
of the Arrangement, as contemplated by Section 2.1.
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"Knowledge" of any party to this Agreement with respect to any
fact or other matter shall mean either that (i) such individual is actually
aware of such fact or other matter or (ii) a prudent individual could be
expected to discover or otherwise become aware of such fact or other matter in
the course of conducting a reasonably comprehensive investigation concerning the
existence of such fact or other matter.
"Leases" shall mean any lease with respect to personal or real
property to which the Company is a party.
"Liabilities" shall mean any direct or indirect liability,
indebtedness, obligation, commitment, expense, claim, deficiency, guaranty or
endorsement of or by any Person of any type, whether accrued, absolute,
contingent, matured, unmatured or other.
"Management Information Circular" shall mean the notice of the
Company Shareholders Meeting, the accompanying management information circular
and form of proxy to be sent to holders of Company Common Shares and Company
Preferred Shares in connection with the Company Shareholders Meeting, including
all appendices thereto.
"Material Adverse Effect" or "Material Adverse Change" shall
mean, (i) with respect to the Company, any change, effect, event or occurrence
that has, or is reasonably likely to have, individually or in the aggregate with
other changes, effects, events or occurrences, a material adverse impact on the
business, financial position, assets, results of operations or prospects of the
Company, and (ii) with respect to BioMarin, any change, effect, event or
occurrence that has, or is reasonably likely to have, individually or in the
aggregate with other changes, effects, events or occurrences, a material adverse
impact on the business, financial position, assets, results of operations or
prospects of BioMarin and its Subsidiaries, taken together as a whole; provided,
however, that a Material Adverse Effect or Material Adverse Change with respect
to either the Company or BioMarin shall not include any change or effect
resulting from significant downward movement in the U.S. or Canadian financial
markets.
"New BioMarin Product" shall have the meaning set forth in the
Exchangeable Shares Terms.
"Ordinary Course" shall mean with respect to any party hereto,
the ordinary course of the business conducted by that party consistent with the
past practice of that party.
"Organizational Documents" shall mean the Company's Articles,
By-laws, shareholder agreements, agreements providing for rights of first
refusal, preemptive rights or options with respect to the purchase of stock,
other securities or assets, and all other documents and contracts, and all
amendments and supplements to any of the foregoing, relating to the
organization, ownership, management or structure of the Company.
"Permits" shall mean all certificates of need, licenses, permits,
franchises, approvals, authorizations, consents or orders of, or filings with,
any Governmental Authority necessary for the conduct of, or relating to the
Company.
7 Execution Version
"Permitted Encumbrances" shall mean liens for any Taxes not yet
due and payable as to which adequate reserves have been established in the Books
and Records, including, without limitation, on the Balance Sheet.
"Person" shall mean any natural person, corporation, business
trust, association, company, partnership, limited liability company, joint
venture, Governmental Authority and any other entity.
"Plan of Arrangement" shall mean the plan of arrangement
substantially in the form and content of Exhibit C annexed hereto and any
amendments or variations thereto made in accordance with the provisions of this
Agreement or made at the direction of the Court in the Final Order and which are
acceptable to BioMarin and the Company.
"Preferred Exchange Ratio" means the quotient obtained by
dividing (i) the Preferred Return Amount, as converted to U.S. dollars, divided
by the total number of issued and outstanding Company Preferred Shares at the
Effective Time by (ii) U.S.$11.50, rounded to the nearest seven decimal places.
"Preferred Return Amount" shall mean $10,021,328, which amount is
four (4) times the aggregate stated capital of the Company Preferred Shares at
the date of this Agreement.
"Regulations" shall mean any laws, statutes, ordinances,
regulations, rules, notice requirements, court decisions, agency guidelines, and
orders of any Governmental Authority.
"Representative" shall mean any officer, director, principal,
attorney, agent, employee, consultant or other representative.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Securities Exemption Orders" shall mean orders of the
Commissions exempting the trades contemplated by the Plan of Arrangement from
the registration and prospectus requirements of applicable Canadian Securities
Legislation, including but not limited to the distribution of Exchangeable
Shares and BioMarin Common Shares as the case may be, the distribution of any
securities upon the conversion or exchange of such securities in accordance with
their terms (including in connection with the exchange of the Company Stock
Options and Company Warrants), or the resale by holders of any securities
distributed to them pursuant to the Arrangement or upon the conversion or
exercise of any security issued to them pursuant to the Plan of Arrangement,
including but not limited to the resale of BioMarin Common Shares.
"Significant Business Associate" shall mean any Person (other
than the Company or any employee of the Company) with which the Company has
consummated or entered into any Contract providing for, or with respect to which
the Company has performed, any transaction or series of similar transactions
involving since January 1, 2001 Liabilities of at least $50,000 to the Company
or any such transaction or series of transactions currently proposed or
anticipated involving at least such amount.
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"Software" shall mean computer software, programs and databases
in any form, including Internet web sites, web content and links, Uniform
Resource Locators, domain names, source code, object code, operating systems and
specifications, data, databases, database management code, utilities, graphical
user interfaces, menus, images, icons, forms, methods of processing, software
engines, platforms and data formats, all versions, updates, corrections,
enhancements and modifications thereof and all related documentation, developer
notes, comments and annotations.
"Stock" of any Person shall mean capital stock, membership or
economic interests or participations or other equivalents of or interests in
(however designated) equity of such Person, securities exchangeable for or
convertible into any of the foregoing and options, warrants, preemptive rights,
rights of first refusal and all other rights to acquire any of the foregoing.
"Subsidiary" shall mean, with respect to any non-natural Person,
any other non-natural Person in which such non-natural Person then owns directly
or indirectly Stock possessing 50% or more of the total combined voting power of
all classes of Stock of such other non-natural Person.
"Tax" shall mean any tax, levy, impost, fee, assessment or other
government charge, including, without limitation, income, estimated income,
business, occupation, franchise, property, payroll, personal property, sales,
transfer, use, employment, commercial rent, occupancy, franchise or withholding
taxes, and any premium, including, without limitation, interest, penalties and
additions, in connection therewith.
"Tax Return" shall mean any return (including any information
return), report, statement, schedule, notice, form, or other document or
information filed with or submitted to, or required to be filed with or
submitted to, any Governmental Authority in connection with the determination,
assessment, collection, or payment of any Tax or in connection with the
administration, implementation, or enforcement of or compliance with any
Regulation relating to any Tax.
"Technology and Know-How" shall mean all Trade Secrets,
engineering information, specifications, designs, drawings, processes and
quality control data, computer hardware, management information systems,
Software and any other intangible property and applications for the same used or
held for use by the Company.
"Transactions" shall mean the transactions contemplated by this
Agreement.
"U.S. GAAP" shall mean United States generally accepted
accounting principles, consistently applied.
1.2 Other Defined Terms. The following terms shall have the meanings
defined for such terms in the Sections set forth below:
Term Section
Agreement Preamble
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Term Section
Ancillary Agreements 8.7
BioMarin Preamble
BioMarin Nova Scotia Recital A
BioMarin Option 2.11(a)
BioMarin Option Plan 2.11(a)
BioMarin SEC Documents 5.4
BioMarin Warrant 2.11(b)
CBCA Recital B
Certificates 2.7(a)
Claim 9.2(d)
Claim Notice 9.2(d)
Closing 3.1(a)
Company Preamble
Company Option Plans 4.2
Company Stock Options 4.2
Confidential Information 10.13
Delivery Preamble
Dispute 10.5(a)
Dispute Notice 10.5(a)
Dissenters' Rights 2.5(a)
Dissenting Shares 2.5(a)
Employee Plans 4.20
Escrow 2.7(d)
Escrow Agreement 2.7(d)
Escrowed Shares 2.7(d)
First Amendment Agreement Preamble
General Release 8.6
Material Breach 10.1(a)(iii)
New Company Products 6.6
Original Agreement Preamble
Other Filings 6.7(a)
Proposed Acquisition Transaction 6.2(a)
Report 6.4(b)
Required Company Shareholder Vote 2.2(b)
Shareholders' Representative 2.7(d)(ii)
Shareholders' Representative Agreement 2.7(d)(ii)
Suspension Period 2.6(b)(ii)
Termination Date 10.1(a)
Warrant Holder 2.11(b)
Warrant Shares 2.11(b)
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ARTICLE II
THE ARRANGEMENT
2.1 Implementation Steps by the Company. The Company covenants in
favor of BioMarin and Newco that the Company shall:
(a) as soon as reasonably practicable, apply in a manner
acceptable to BioMarin under Section 192 of the CBCA for the Interim Order, and
thereafter proceed with and diligently pursue the obtaining of the Interim
Order;
(b) convene and hold the Company Shareholders Meeting for the
purpose of considering the Arrangement Resolution (and for any other proper
purpose as may be set out in the notice for such meeting);
(c) subject to obtaining such shareholder approval as is required
by the CBCA and the Interim Order, diligently pursue the application to the
Court for the Final Order; and
(d) subject to obtaining the Final Order and the satisfaction or
waiver of the other conditions herein contained in favor of the Company, file
with the Director Articles of Arrangement and such other documents as may be
required in connection therewith under the CBCA to give effect to the
Arrangement.
2.2 Interim Order. The notice of motion for the application referred
to in Section 2.1(a) shall request that the Interim Order provide:
(a) for the class or classes of Persons to whom notice is to be
provided in respect of the Arrangement and the Company Shareholders Meeting and
for the manner in which such notice is to be provided;
(b) that the requisite shareholder approval for the Arrangement
Resolution shall be 66 2/3% of the votes cast on the Arrangement Resolution by
holders of Company Common Shares and Company Preferred Shares, in each case
voting separately as a class and present in Person or by proxy at the Company
Shareholders Meeting (the "Required Company Shareholder Vote");
(c) that, in all other respects, the terms, restrictions and
conditions of the by-laws and articles of the Company, including quorum
requirements and all other matters, shall apply in respect of the Company
Shareholders Meeting; and
(d) for the grant of the Dissenters' Rights.
2.3 Effect of the Arrangement. At the Effective Time, the effect of
the Arrangement shall be as provided in this Agreement and the Plan of
Arrangement and the applicable provisions of the CBCA.
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2.4 Effect on Capital Stock. Subject to the terms and conditions of
this Agreement, at the Effective Time, by virtue of the Arrangement, the
following shall occur:
(a) Exchange of Company Common Shares and Company Preferred
Shares. A part of each Company Preferred Share issued and outstanding
immediately prior to the Effective Time, other than any Dissenting Shares (as
defined in and to the extent provided in Section 2.5), will be automatically
exchanged (subject to Section 2.4(d)) for the right to receive the product of
(X) one (1) BioMarin Common Share multiplied by (Y) the Preferred Exchange
Ratio. Each Company Common Share and a part of each Company Preferred Share
issued and outstanding immediately prior to the Effective Time, other than any
Dissenting Shares (as defined in and to the extent provided in Section 2.5) will
be automatically exchanged (subject to Section 2.4(d)) for (i) the right to
receive the product of (X) one (1) BioMarin Common Share multiplied by (Y) the
Exchange Ratio and (ii) one Exchangeable Share. After giving effect to the two
foregoing sentences, each Company Common Share and each Company Preferred Share
shall have been exchanged in full. Section 2.4 of the Company Ancillary
Agreement sets forth the number of BioMarin Common Shares issuable pursuant to
this Agreement to each Company Shareholder based upon the Exchange Ratio and the
Preferred Exchange Ratio; provided, however, in the event that the Exchange
Ratio is recalculated as a result in any increase in the stated capital of the
Company by the aggregate cash exercise prices actually received by the Company
after the date of the this Agreement and prior to the Effective Time from the
exercise of any Company Stock Options outstanding as of the date of this
Agreement pursuant to and in accordance with the terms of the Company Stock
Option Plan and the related option agreements, then the parties acknowledge and
agree that Section 2.4 of the Company Ancillary Agreement shall be
correspondingly updated.
(b) Stock Options. At the Effective Time, options to purchase
Company Common Shares then outstanding and vested under any Company Option Plan
shall be assumed or replaced by BioMarin in accordance with Section 2.11 hereof.
(c) Warrants. At the Effective Time, the Company Warrants then
outstanding shall be replaced by BioMarin in accordance with Section 2.11
hereof.
(d) Fractional Shares. No fraction of a share of an Exchangeable
Share or a BioMarin Common Share will be issued by virtue of the Arrangement. In
lieu of any fractional BioMarin Common Share, each holder of Company Common
Shares or Company Preferred Shares who would otherwise be entitled to a fraction
of a share of a BioMarin Common Share (after aggregating all fractional shares
of BioMarin Common Shares that otherwise would be received by such holder)
shall, upon surrender of such holder's Certificates(s) (as defined in Section
2.6) receive from Newco an amount of cash (rounded to the nearest whole cent),
without interest, equal to the product of such fraction, multiplied by
U.S.$11.50.
2.5 Dissenting Shares.
(a) Notwithstanding any provision of this Agreement to the
contrary, the shares of any holder of Company Common Shares or Company Preferred
Shares who has demanded and perfected appraisal and dissent rights ("Dissenters'
Rights") in respect of such Company Common Shares or Company Preferred Shares in
accordance with the Interim Order
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or the CBCA and who, as of the Effective Time, has not effectively withdrawn or
lost such appraisal and dissent rights ("Dissenting Shares"), shall not be
converted into or represent a right to receive Exchangeable Shares or BioMarin
Common Shares pursuant to Section 2.4, but the holder thereof shall only be
entitled to such rights as are granted by the Interim Order or the CBCA, as the
case may be.
(b) Notwithstanding the provisions of subsection (a), if any
holder of Company Common Shares or Company Preferred Shares who demands
appraisal of such shares under the CBCA shall effectively withdraw (or otherwise
by law not be entitled to) the right to appraisal, then, as of the Effective
Time, such holder's shares shall automatically be converted into and represent
only the right to receive Exchangeable Shares and BioMarin Common Shares, as the
case may be, without interest thereon, upon surrender of the certificate
representing such shares.
(c) The Company shall give BioMarin (i) prompt notice of any
written demands for appraisal of any Company Common Shares or Company Preferred
Shares, withdrawals of such demands, and any other instruments served pursuant
to the CBCA and received by the Company which relate to any such demand for
appraisal and (ii) the opportunity to participate in all negotiations and
proceedings which take place prior to the Effective Time with respect to demands
for appraisal and dissent under the CBCA. The Company shall not, except with the
prior written consent of BioMarin, voluntarily make any payment with respect to
any demands for appraisal of Company Common Shares or Company Preferred Shares
or offer to settle or settle any such demands.
2.6 Securities Compliance; Registration.
(a) Securities Compliance. BioMarin shall use commercially
reasonable efforts to obtain any and all orders required from the Commissions in
the provinces of British Columbia and Ontario to permit the issuance and first
resale of (a) BioMarin Common Shares and Exchangeable Shares issued pursuant to
the Arrangement, (b) the BioMarin Common Shares, if any, to be issued upon
exchange of the Exchangeable Shares from time to time, and (c) the BioMarin
Common Shares to be issued from time to time upon exercise of the BioMarin
Options and BioMarin Warrants, in each case without qualification with or
approval of or the filing of any prospectus or similar document or the taking of
any other proceeding in connection therewith.
(b) Registration.
(i) In the event that Newco or BioMarin Nova Scotia
determines to deliver its Redemption Price or Redemption Call Purchase Price (as
such terms are defined in the Exchangeable Shares Terms) by issuing BioMarin
Common Shares to the Company Shareholders pursuant Section 5.3 of the
Exchangeable Shares Terms, such issuance shall occur pursuant to an exemption
from registration or pursuant to an effective registration statement under the
Securities Act. If such shares are issued pursuant to an exemption from
registration under the Securities Act, then within fifteen (15) days after the
Redemption Date (as defined in the Exchangeable Shares Terms), BioMarin shall
prepare and file a registration statement on Form S-3 under the Securities Act,
covering the resale of such BioMarin Common Shares and
13 Execution Version
shall use its commercially reasonable efforts to cause such registration
statement to become effective as expeditiously as possible and to remain
effective until the earliest to occur of (i) the date the BioMarin Common Shares
covered thereby have been sold, (ii) the date by which all BioMarin Common
Shares covered thereby may be sold under Rule 144 without restriction as to
volume, or (iii) the date which is the twenty-fourth month anniversary of such
Redemption Date.
(ii) Following the effectiveness of a registration statement
filed pursuant to this section, BioMarin may, at any time, suspend the
effectiveness of such registration for up to sixty (60) days, as appropriate (a
"Suspension Period"), by giving notice to the Company Shareholders, if BioMarin
shall have determined that BioMarin may be required to disclose any material
corporate development which disclosure may have a material adverse effect on
BioMarin or any of its Subsidiaries.
(iii) When BioMarin files a registration statement with
respect to BioMarin Common Shares under the Securities Act pursuant to Section
2.6(b), BioMarin will, at its expense, as expeditiously as possible:
(1) In accordance with the Securities Act and the rules
and regulations of the SEC, prepare and file in accordance with Section 2.6(b),
with the SEC a registration statement with respect to such BioMarin Common
Shares and use its commercially reasonable efforts to cause such registration
statement to become and remain effective for the period described in Section
2.6(b)(i), and prepare and file with the SEC such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective for such period;
(2) Furnish to the Persons participating in such
registration such reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus and such other documents as such
Persons may reasonably request in order to facilitate the public offering of
such BioMarin Common Shares;
(3) Notify such Persons participating in the
registration, promptly after it shall receive notice thereof, of the date and
time when such registration statement and each post-effective amendment thereto
has become effective or a supplement to any prospectus forming a part of such
registration statement has been filed;
(4) Notify such Persons participating in the
registration promptly of any request by the SEC for the amending or
supplementing of such registration statement or prospectus or for additional
information;
(5) Prepare and promptly file with the SEC, and
promptly notify such Persons participating in the registration of the filing of,
such amendments or supplements to such registration statement or prospectus as
may be necessary to correct any statements or omissions if, at the time when a
prospectus relating to such securities is required to be delivered under the
Securities Act, any event has occurred as the result of which any such
prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading; and
14 Execution Version
(6) Advise such Persons participating in the
registration, promptly after it shall receive notice or obtain Knowledge
thereof, of the issuance of any stop order by the SEC suspending the
effectiveness of such registration statement or the initiation or threatening of
any proceeding for that purpose and promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued.
(iv) With respect to any registration effected pursuant to
this section, all fees, costs and expenses of and incidental to such
registration shall be borne by BioMarin; provided, however, that, the Persons
participating in the registration shall bear their own legal fees and all
underwriting discounts and commissions.
2.7 Surrender of Certificates.
(a) Exchange Procedures. Promptly after the Effective Time, each
holder of record (as of the Effective Time) of a certificate or certificates
(the "Certificates"), which immediately prior to the Effective Time represented
outstanding Company Common Shares or Company Preferred Shares, shall be required
to send to Newco (i) a duly completed and validly executed letter of transmittal
in substantially the same form attached hereto as Exhibit D, together with the
Certificates and any Company Warrants held by such holder, and (ii) instructions
for use in effecting the surrender of the Certificates in exchange for
certificates representing BioMarin Common Shares, Exchangeable Shares and cash
in lieu of any fractional shares pursuant to Section 2.4(d), as appropriate.
Upon surrender of Certificates to Newco or to such other agent or agents as may
be appointed by BioMarin, together with such letter of transmittal, duly
completed and validly executed in accordance with the instructions thereto, the
holders of such Certificates shall be entitled to receive in exchange therefor,
subject to the escrow provisions set forth in Section 2.7(d) below, certificates
representing the number of whole shares of Exchangeable Shares and BioMarin
Common Shares, as appropriate, into which their Company Common Shares or Company
Preferred Shares were exchanged at the Effective Time, together with payment in
lieu of fractional shares which such holders have the right to receive pursuant
to Section 2.4(d), and the Certificates so surrendered shall forthwith be
cancelled. Until so surrendered, outstanding Certificates will be deemed from
and after the Effective Time, for all corporate purposes, subject to Section
2.4(d), to evidence only the ownership of the number of full Exchangeable Shares
or BioMarin Common Shares into which such Company Common Shares or Company
Preferred Shares are entitled to be exchanged and the right to receive an amount
in cash in lieu of the issuance of any fractional shares in accordance with
Section 2.4(d).
(b) Required Withholding. Newco shall be entitled to deduct and
withhold from any consideration payable or otherwise deliverable pursuant to
this Agreement to any holder or former holder of Company Common Shares or
Company Preferred Shares such amounts as may be required (as advised by tax
counsel for BioMarin) to be deducted or withheld therefrom under the Code, the
Income Tax Act (Canada) or under any provision of United States or Canadian
federal, state, provincial, regional, local or foreign tax law or under any
other applicable legal requirement. To the extent such amounts are so deducted
or withheld, such amounts shall be treated for all purposes under this Agreement
as having been paid to the Person to whom such amounts would otherwise have been
paid.
15 Execution Version
(c) No Liability. Notwithstanding anything to the contrary in
this Section 2.6, neither BioMarin, the Company, BioMarin Nova Scotia nor Newco
nor any party hereto shall be liable to a holder of BioMarin Common Shares or
Exchangeable Shares, Company Common Shares or Company Preferred Shares for any
amount properly paid to a public official pursuant to any applicable abandoned
property, escheat or similar law.
(d) Escrow.
(i) On or prior to the Effective Time, Newco, BioMarin, the
Shareholders' Representative (as defined below) and U.S. Bank Trust National
Association, as escrow agent, shall execute an escrow agreement (the "Escrow
Agreement") in the form of Exhibit E attached hereto with respect to all the
BioMarin Common Shares and Exchangeable Shares to be issued to the Company
Shareholders in exchange for Company Common Shares and Company Preferred Shares
as of the Effective Date (the "Escrowed Shares"). Certificates representing the
Escrowed Shares shall be issued in the names of the Company Shareholders in
accordance with Section 2.4(a) and Section 2.7(a) above and shall be delivered
by Newco into an escrow (the "Escrow") pursuant to the terms of the Escrow
Agreement.
(ii) Ventures West Management VI Ltd. (the "Shareholders'
Representative") will be appointed pursuant to that certain Shareholders'
Representative Agreement to be entered into by and among the Majority
Shareholders (as such term is defined in the Escrow Agreement) prior to the
Effective Time (the "Shareholders' Representative Agreement") to serve as agent
and representative of each Majority Shareholder (as such term is defined in the
Escrow Agreement), for and on behalf of such Majority Shareholder. Such
Shareholders' Representative shall be empowered by the Shareholders'
Representative Agreement to perform its obligations and responsibilities under
the Escrow Agreement. If the Shareholders' Representative or its agent shall
notify BioMarin of such Shareholders' Representative's intent to resign as the
Shareholders' Representative, the Shareholders' Representative shall appoint a
successor Shareholders' Representative within thirty (30) days, which successor
shall be acceptable to BioMarin in its reasonable discretion.
(iii) A decision, act, consent or instruction of the
Shareholders' Representative shall constitute a decision of all of the Majority
Shareholders with respect to the Escrow Agreement and this Agreement, and shall
be final, binding and conclusive upon each Majority Shareholder. BioMarin, Newco
and the Company may rely upon any decision, act, consent or instruction of the
Shareholders' Representative as being the decision, act, consent or instruction
of each and all of the Majority Shareholders. BioMarin, Newco and the Company
are relieved from any liability to any Person for any acts done by any or all of
them in accordance with or pursuant to such decision, act, consent or
instruction.
2.8 No Further Ownership Rights in Company Common Shares or Company
Preferred Shares . All Exchangeable Shares and BioMarin Common Shares issued in
accordance with the terms hereof (including any cash paid in respect thereof
pursuant to Section 2.4(d)) shall be deemed to have been issued in full
satisfaction of all rights pertaining to such Company Common Shares and Company
Preferred Shares, and, following the Effective Time, there shall be no further
registration of transfers on the records of the Company of Company Common Shares
or Company Preferred Shares which were outstanding immediately
16 Execution Version
prior to the Effective Time. If, after the Effective Time, Certificates are
presented to the Company for any reason, they shall be cancelled and exchanged
as provided in this Article II, subject to the Plan of Arrangement.
2.9 Lost, Stolen or Destroyed Certificates. In the event that any
Certificates shall have been lost, stolen or destroyed, the Company shall issue
in exchange for such lost, stolen or destroyed Certificates, upon the making of
an affidavit of that fact by the holder thereof, certificates representing the
Exchangeable Shares or BioMarin Common Shares into which the Company Common
Shares or Company Preferred Shares represented by such Certificates were
exchanged pursuant to Section 2.4, and cash for fractional shares, if any, as
may be required pursuant to Section 2.4(d); provided, however, that Newco may,
in its discretion and as a condition precedent to the issuance of such
certificates representing Exchangeable Shares or BioMarin Common Shares and
cash, require the owner of such lost, stolen or destroyed Certificates to
deliver a bond in such sum as it may reasonably direct as indemnity against any
claim that may be made against Newco with respect to the Certificates alleged to
have been lost, stolen or destroyed.
2.10 Tax Consequences. It is intended by the parties hereto that the
Arrangement shall, for United States income tax purposes, constitute a taxable
disposition of Company Common Shares and Company Preferred Shares by Company
Shareholders subject to United States income tax and shall, for Canadian income
tax purposes, qualify, within prescribed limits, for an election pursuant to
Section 85 of the Income Tax Act (Canada)
2.11 Company Stock Options and Company Warrants.
(a) Company Stock Options. BioMarin and the Company shall provide
that on the Effective Date each Company Stock Option shall be exchanged for an
option to purchase BioMarin Common Shares as provided in Section 2.11 of the
Company Ancillary Agreement (a "BioMarin Option") and pursuant to BioMarin's
1997 Stock Plan, as amended on December 22, 1998 (the "BioMarin Option Plan"),
as shares issuable upon exercise of options granted under such BioMarin Option
Plan were registered on a registration statement on Form S-8 under the
Securities Act. All stock options granted by the Company which have not vested
at the Effective Time will be cancelled automatically at the Effective Time
without the need for any action by the Company or any other party. From and
after the Closing, there shall be no Company Stock Options outstanding.
(b) Company Warrants. BioMarin and the Company shall provide that
on the Effective Date each outstanding Company Warrant shall be exchanged for a
warrant to purchase BioMarin Common Shares (such shares, "Warrant Shares") as
provided in Section 2.11 of the Company Ancillary Agreement in the form attached
as Exhibit F to the Company Ancillary Agreement (a "BioMarin Warrant"). BioMarin
shall notify each holder (a "Warrant Holder") of a BioMarin Warrant or Warrant
Shares, in writing at least ten (10) days prior to filing any registration
statement pursuant to Section 2.6(b) above, and will afford each Warrant Holder
an opportunity to include in such registration statement all or any part of the
Warrant Shares then held by such Warrant Holder. Such right shall be exercisable
by each Warrant Holder, if at all, by the delivery of written notice by such
Warrant Holder to BioMarin within five (5) days after receipt of the
above-described notice from BioMarin, informing BioMarin of the number of
17 Execution Version
Warrant Shares such Warrant Holder wishes to include in such registration
statement. If a Warrant Holder does not deliver such notice within such five (5)
day period, such Warrant Holder shall not have any right to include any of its
Warrant Shares in such registration statement thereafter filed by BioMarin. All
expenses (other than each Warrant Holder's legal fees and expenses and all
underwriting discounts and commissions) related to such registration of a
Warrant Holder's Warrant Shares shall be paid by BioMarin.
(c) Further Assurances. The Company and BioMarin shall take all
action that may be necessary (under the option agreements and otherwise) to
effectuate the provisions of this Section 2.11. As soon as practicable after the
Closing, BioMarin shall deliver to holders of Company Stock Options and Company
Warrants appropriate notices setting forth such holders' rights pursuant to the
BioMarin Option Plan, if applicable, and the agreements evidencing the grants of
such BioMarin Options and BioMarin Warrants.
2.12 Transfer Taxes and Fees. The Company shall be responsible for all
documentary and transfer taxes and all sales or use taxes imposed by reason of
the transfer of Company Common Shares and Company Preferred Shares (but
specifically excluding any tax based on or measured with respect to income or
gain) and any deficiency, interest or penalty asserted with respect thereto. The
Company shall pay the fees and costs of recording or filing all applicable
conveyancing instruments for such transfer.
ARTICLE III
CLOSING
3.1 Closing.
(a) In General. The consummation of the Arrangement (other than
obtaining the Final Order and the filing with the Director of the Articles of
Arrangement) shall occur at the closing contemplated herein (the "Closing")
which shall be held at 9:00 a.m. local time on such date mutually agreed upon by
the parties hereto, which date shall not be before the satisfaction or waiver of
all of the conditions specified in Articles VII and VIII hereof and not later
than the Termination Date, at the offices of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇.
(b) Form of Instruments. To the extent that a form of any
document to be delivered hereunder is not attached as an exhibit hereto, such
documents shall be in form and substance, and shall be executed and delivered in
a manner reasonably satisfactory to BioMarin.
(c) Deliveries. The Company will, at the Closing, deliver to
BioMarin the documents required by Article VIII.
(d) Consents. To the extent not already delivered on or before
the date hereof, the Company shall deliver to BioMarin at the Closing all
Permits and any other third party consents contemplated or described herein or
in the Company Ancillary Agreement.
18 Execution Version
(e) Resignations. The Company shall deliver to BioMarin at the
Closing written resignations, effective as of the Effective Date, of each
director and officer of the Company.
(f) Plan of Arrangement. Each party hereto shall comply with the
terms of the Plan of Arrangement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to BioMarin and Newco as
follows:
4.1 Organization of the Company; Organizational Documents.
(a) The Company is duly organized, validly existing and in good
standing under the laws of Canada, with full power and authority to own and
lease its properties and assets and to conduct its business as currently
conducted and as proposed to be conducted. The Company is duly qualified to do
business and is in good standing in each jurisdiction where the character of its
properties owned or leased or the nature of its activities make such
qualification necessary. The Company has not conducted business in any
jurisdiction other than British Columbia, Canada.
(b) Section 4.1(b) of the Company Ancillary Agreement contains a
true, correct and compete list of all of the Organizational Documents of the
Company. Copies of all of the Organizational Documents of the Company have
heretofore been delivered or made available to BioMarin, and as so delivered or
made available are accurate and complete.
4.2 Capitalization. The authorized capital Stock, the total issued
and outstanding Stock, the name of each shareholder and the number of shares
held by each shareholder of the Company is set forth in Section 4.2 of the
Company Ancillary Agreement. All of the issued and outstanding Stock of the
Company is duly authorized, validly issued, fully paid, nonassessable and free
of all preemptive or similar rights. One Million Eight Hundred Thirty-Eight
Thousand Three Hundred Eighty-Four (1,838,384) shares of the Company's Stock
have been reserved for issuance and issuable upon or otherwise deliverable in
connection with the exercise of outstanding options and warrants granted by the
Company to purchase shares of the Company's Stock. Section 4.2 of the Company
Ancillary Agreement contains a complete and correct list of: (a) all of the
Company's stock option plans; (b) all holders of options to acquire shares of
the Company's Stock, including such person's name, the number of options
(vested, unvested and total) held by such person, the stock option plan pursuant
to which the option was granted, the remaining term for vesting of such options
and the exercise price for each such option; and (c) all holders of warrants to
acquire shares of the Company's Stock, including such person's name, the number
of shares of the Company's Stock subject to each such warrant and the exercise
price for each such warrant. Except as set forth in Section 4.2 of the Company
Ancillary Agreement, there are no existing options, warrants, right, calls or
commitments of any character relating to the Company's Stock. There are no
outstanding securities or other instruments convertible into or exchangeable for
the Company's Stock and there are no commitments to issue any such securities or
instruments. No Person has any right of first refusal, preemptive right,
subscription
19 Execution Version
right or similar right with respect to any Stock of the Company. There are no
stock plans, stock appreciation rights, phantom stock rights or any rights of a
similar nature that would require any Person to pay cash or issue any securities
as a result of or in connection with the Transactions or otherwise give any
Person any right to or in respect of any security of BioMarin. All of the
outstanding shares of the Company's Stock were issued in compliance with all
applicable Regulations, including, without limitation, all applicable securities
laws.
4.3 Subsidiaries. The Company does not own or control any Stock of
any Person. The Company is not a participant in, or member or equity or debt
holder of, any joint venture, partnership or similar arrangement.
4.4 Authorization. The Company has all requisite power and authority,
and has taken all corporate action necessary, to execute and deliver this
Agreement, the Ancillary Agreements and to perform its obligations hereunder and
under any other agreement contemplated hereby and, subject to obtaining the
Required Company Shareholder Vote and the approval of the Court to the
Arrangement, to consummate the Transactions. The execution and delivery of this
Agreement and the Ancillary Agreements by the Company and, subject to obtaining
the Required Company Shareholder Vote and the approval of the Court to the
Arrangement, the consummation by the Company of the Transactions have been duly
approved by all corporate action of the Company. No other corporate proceedings
on the part of the Company is necessary to authorize its execution, delivery and
performance of this Agreement and the Ancillary Agreements and the consummation
of the Transactions (other than all proceedings related to the approval of the
Arrangement by the Required Company Shareholder Vote and Court approval of the
Arrangement). This Agreement and the Ancillary Agreements have been duly
executed and delivered by the Company and each of this Agreement and each
Ancillary Agreement is the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except that such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or affecting the
rights of creditors generally, and that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought.
4.5 Absence of Certain Changes or Events. Since the Balance Sheet
Date, except as set forth in Section 4.5 of the Company Ancillary Agreement,
there has not been any:
(a) Material Adverse Change;
(b) change in accounting methods, principles or practices
affecting in any material respect the Company;
(c) damage, destruction or loss (whether or not covered by
insurance) materially and adversely affecting the Company;
(d) cancellation of any indebtedness or waiver or release of any
right or claim of the Company in excess of $10,000 in the aggregate;
20 Execution Version
(e) declaration, setting aside, or payment of dividends or
distributions by the Company, or any redemption, purchase or other acquisition
of any securities of the Company;
(f) increase in the rate of compensation payable or to become
payable to any Representative of the Company (other than compensation increases
for non-officer employees of the Company made in the Ordinary Course) including,
without limitation, the making of any loan (except travel advances, if any, made
in reasonable amounts and in the Ordinary Course) to, or the payment, grant or
accrual of any bonus, incentive compensation, service award or other similar
benefit to, any such Person, or the addition to, modification of, or
contribution to any Plan or other arrangement to which the Company is a party or
otherwise is bound;
(g) Material Adverse Change in employee relations which has or is
reasonably likely to have a Material Adverse Effect;
(h) amendment (except in the Ordinary Course), cancellation or
termination of any material Contract, transaction or Permit relating to the
Company or to which the Company is a party, or entry by the Company into any
Contract or transaction which is not in the Ordinary Course, including, without
limitation, any employment or consulting agreements;
(i) mortgage, pledge or other material Encumbrance of any of the
Assets, other than Permitted Encumbrances;
(j) sale, assignment or transfer of any of the Assets;
(k) incurrence of indebtedness by the Company for borrowed money
or commitment to borrow money entered into by the Company or loans made or
agreed to be made by the Company or indebtedness guaranteed by the Company;
(l) incurrence by the Company of any Liabilities (except
Liabilities incurred in the Ordinary Course not in excess of an aggregate of
$10,000);
(m) payment, discharge or satisfaction of any Liabilities of the
Company other than the payment, discharge or satisfaction in the Ordinary
Course;
(n) capital expenditure by the Company in excess of $10,000 in
the aggregate, or the incurring of any obligation by Company to make any capital
expenditure in excess of $10,000;
(o) failure to pay or satisfy when due or other default in
respect of any material Liability of the Company;
(p) disposition of any Company Intellectual Property which is
material to the Company; or
(q) agreement by the Company to do any of the things described in
the preceding clauses (a) through (p) other than as expressly provided for
herein.
21 Execution Version
4.6 Encumbrances. To the Knowledge of the Company, each Company
Shareholder owns all of its Company Common Shares and Company Preferred Shares,
free and clear of all Encumbrances; provided, however, that the Company has made
no inquiry of any Company Shareholder other the Majority Shareholders (as such
term is defined in the Escrow Agreement) with respect to this representation.
Upon consummation of the Transactions, BioMarin shall be the owner, beneficially
and of record, of all the Company's Common Shares and Company Preferred Shares,
free and clear of all Encumbrances.
4.7 Condition of the Assets. All tangible Assets of the Company are
in good operating condition and repair and are usable in the Ordinary Course and
conform to all applicable Regulations (including Environmental Laws and Health
Laws) relating to their construction, use and operation, except where the
failure to so conform would not have a Material Adverse Effect.
4.8 Contracts and Commitments.
(a) Contracts. Section 4.8 of the Company Ancillary Agreement
sets forth a complete and accurate list of all Contracts of the following
categories:
(i) Contracts not made in the Ordinary Course;
(ii) Employment contracts and severance agreements;
(iii) Labor or union contracts;
(iv) Distribution, franchise, license, technical assistance,
sales, commission, consulting, or other Contracts that individually (A) since
January 1, 2001 have involved revenues or Liabilities in excess of $20,000, (B)
are known by the Company to involve future estimated annual revenues in excess
of $20,000, (C) involve future annual expenditures or Liabilities, actual or
potential, estimated to be in excess of $20,000, (D) terminate or expire at any
time after the first anniversary of the Effective Date, or (E) are otherwise
material to the Company;
(v) Promissory notes, loans, indentures, evidences of
indebtedness, letters of credit, guarantees, or other instruments relating to an
obligation to pay money, whether the Company is the borrower, lender, guarantor
or grantor thereunder;
(vi) Contracts containing covenants limiting the freedom of
the Company or any shareholder, officer, director, partner or employee of the
Company to engage in any line of business, to perform or render to any Person
any service or to compete with any Person;
(vii) Any Contract with any Governmental Authority;
(viii) Leases of real property;
22 Execution Version
(ix) Leases of personal property not cancelable (without
Liability) within thirty (30) calendar days or which have aggregate annual lease
payments in excess of $20,000;
(x) Contracts entered into in settlement of any Action or
threatened Action;
(xi) Contracts involving rights of first refusal, first
offer, first negotiation, first look or similar rights that the Company has
granted to third parties;
(xii) Contracts not cancelable (without Liability) on less
than thirty (30) days notice by the Company.
The Company has delivered or made available to BioMarin true,
correct and complete copies of all of the written Contracts listed in Section
4.8 of the Company Ancillary Agreement, including all amendments and supplements
thereto, and has provided to BioMarin true, correct and complete summaries of
all of the oral Contracts described above, including all amendments and
supplements thereto.
(b) All of the Contracts are valid, binding and enforceable upon
the Company and, to the Knowledge of the Company, each other party thereto in
accordance with their terms (except that such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights of creditors generally,
and that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceedings therefore may be brought), except as
could not reasonably be anticipated, individually or in the aggregate, to have a
Material Adverse Effect. The Company has fulfilled, or taken all action
necessary to enable it to fulfill when due, all of its obligations under such
Contracts, except where a failure to do so (either in any individual Contract or
in the aggregate) could not reasonably be anticipated to have a Material Adverse
Effect. The Company is not, and, to the Knowledge of the Company, no other party
is, in Default with respect to any such Contract, which Default would be
reasonably likely to have a Material Adverse Effect, either individually or in
the aggregate, and no notice of any claim of material Default has been given to
the Company.
4.9 Permits; Consents and Approvals.
(a) Section 4.9 of the Company Ancillary Agreement sets forth a
complete list of all Permits material to the Company. The Company has, and at
all times has had, all Permits required under any Regulation (including
Environmental Laws and Health Laws) in connection with the operations of the
Company except where the failure to have any such Permit would not have a
Material Adverse Effect. The Company is not in Default, nor has it received any
notice of any claim of Default, with respect to any such Permit. Except as set
forth in Section 4.9 of the Company Ancillary Agreement, no such Permit which is
material to the Company will be adversely affected by the completion of the
Transactions. No present or former shareholder or Representative of the Company
or any Affiliates thereof, or any other Person, owns or has any
23 Execution Version
proprietary, financial or other interest (direct or indirect) in any Permit
which the Company owns, possesses or uses.
(b) No notice to, declaration, filing or registration with, or
Permit or consent from, any Governmental Authority, or any other Person, is
required to be made or obtained by the Company in connection with the execution,
delivery or performance of this Agreement and the consummation of the
Transactions.
4.10 No Conflict or Violation. Neither the execution, delivery or
performance of this Agreement nor the consummation of the Transactions, nor
compliance by the Company with any of the provisions hereof, will (a) violate or
conflict with any provision of any Organizational Document of the Company, (b)
violate, conflict with, or result in or constitute a Default under, or result in
the termination of, or accelerate the performance required by, or result in a
right of termination or acceleration or the loss of a material benefit under, or
result in the incurrence of any Liability under, or result in the creation of
any Encumbrance (other than a Permitted Encumbrance) upon any of the Assets
under any of the terms, conditions or provisions of any Contract or material
Permit (i) to which the Company is a party or (ii) by which any of the Assets
are bound or affected; unless in each case such violation, conflict, Default,
termination, acceleration, Liability, or Encumbrance would not, when taken
individually, or together with other violations, conflicts, Defaults,
terminations, accelerations, Liabilities, or Encumbrances in the aggregate,
reasonably be expected to have a Material Adverse Effect, (c) violate any
Regulation or Court Order, or (d) impose any Encumbrance (other than a Permitted
Encumbrance) on any of the Assets.
4.11 Financial Statements. True and complete copies of the Financial
Statements are attached to the Company Ancillary Agreement under Section 4.11
thereto. The Financial Statements (a) are derived from the books and records of
the Company, (b) fairly present the financial position of the Company as
described therein as of the respective dates thereof and the results of
operations, changes in shareholders' equity and cash flows of the Company for
the periods covered thereby and (c) are true and correct in all material
respects. The Financial Statements were prepared in accordance with Canadian
GAAP.
4.12 Books and Records. The minute books of the Company, true and
complete copies of which have been delivered to BioMarin, are complete and
correct in all material respects.
4.13 Litigation. There is no Action pending or, to the Knowledge of
the Company, threatened against, related to or affecting the Company (including
with respect to Environmental Laws and Health Laws) or that seek to delay, limit
or enjoin the Transactions. The Company is not subject to any Court Order and is
not in Default with respect to any Court Order that relates to the Company, and
there are no unsatisfied judgments against the Company. There are no Court
Orders or agreements with, or liens by, any Governmental Authority or
quasi-governmental entity relating to any Environmental Law or Health Law which
regulate, obligate, bind or in any way affect the Company.
4.14 Labor Matters. The Company is not a party to any labor agreement
with respect to any of its employees. The Company has not experienced any
attempt by organized labor or its
24 Execution Version
representatives to make it conform to demands of organized labor relating to its
employees or to enter into a binding agreement with organized labor that would
cover its employees. There is no labor strike or labor disturbance pending or,
to the Company's Knowledge, threatened against the Company by any of its
employees, nor is any grievance currently being asserted. The Company has not
experienced a work stoppage or other labor difficulty by its employees or former
employees. The Company is not engaging nor has engaged in any conduct that could
reasonably be anticipated to be deemed an unfair labor practice. Set forth in
Section 4.14 of the Company Ancillary Agreement are the names and current annual
base salary rates of all present employees of the Company, their bonus
compensation for the year ending December 31, 2000 and bonus compensation paid,
expected to be payable or otherwise accrued with respect to the year ending
December 31, 2001.
4.15 Liabilities. Except as set forth in Section 4.15 of the Company
Ancillary Agreement, the Company does not have any Liabilities, except (a)
Liabilities which are set forth or reserved for on the Balance Sheet, which have
not been paid or discharged since the Balance Sheet Date and (b) Liabilities not
exceeding $5,000 individually or $10,000 in the aggregate incurred since the
Balance Sheet Date in the Ordinary Course.
4.16 Compliance with Law. The Company has not violated and is in
compliance with all applicable Regulations and Court Orders relating to the
Company, unless such violations or failures to be in compliance would not,
individually or in the aggregate, have a Material Adverse Effect. The Company
has not received any notice or otherwise been advised that it is not in
compliance with any such Regulations or Court Orders. The Company has no reason
to anticipate that any existing circumstances are likely to result in violations
of any of the foregoing, unless, individually and in the aggregate, such
violations would not have a Material Adverse Effect.
4.17 No Brokers. Except as set forth in Section 4.17 of the Company
Ancillary Agreement, neither the Company nor any of its respective
Representatives, partners or Affiliates has employed or made any agreement with
any broker, finder or similar agent or any other Person which will result in the
obligation of the Company or BioMarin or any of their respective Affiliates to
pay any finder's fee, brokerage fees or commission or similar payment in
connection with the Transactions.
4.18 No Other Agreement to Sell the Shares or Assets. Neither the
Company nor, to the Knowledge of the Company, any of its officers, directors,
Affiliates, or shareholders have any commitment or legal obligation, absolute or
contingent, to any other Person other than BioMarin to sell, assign, transfer or
effect a sale of any of the Shares or the Assets or any portion thereof, to
effect any merger, consolidation, liquidation, dissolution or other
reorganization, or to enter into any agreement or cause the entering into of an
agreement with respect to any of the foregoing.
4.19 Intellectual Property.
(a) The Company owns, licenses or has other valid rights, title
and interest, free and clear of all Encumbrances, to use the Company
Intellectual Property and the Technology and Know-How, without infringing upon
or otherwise acting adversely to the right
25 Execution Version
or claimed right of any third party, except where the failure to so own, license
or have such rights would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. Section 4.19(a) of the Company
Ancillary Agreement sets forth all domestic and foreign Patents, Copyrights,
Maskworks, Trademarks, and licenses with respect to the foregoing, included in
the Company Intellectual Property. All of the Company Intellectual Property and
Technology and Know-How are valid and enforceable rights of the Company and will
not cease to be valid and in full force and effect by reason of the execution
and delivery of this Agreement or the consummation of the Transactions.
(b) Section 4.19(a) of the Company Ancillary Agreement identifies
the owner or licensor of all Company Intellectual Property. The Company is not
obligated or under any liability whatsoever to make any payments by way of
royalties, fees or otherwise to any owner or licensee of, or other claimant to,
any Company Intellectual Property. Upon consummation of the Transactions,
Purchaser will be entitled to continue to use all of the Company Intellectual
Property without the payment of any fees, licenses or other payments to any
Person except as set forth in Section 4.19(a) of the Company Ancillary
Agreement.
(c) To the Company's Knowledge, (i) except with respect to the
rights of any licensor under agreements listed on Section 4.19(a) of the Company
Ancillary Agreement or as set forth on paragraph 16 of Section 4.19(a) of the
Company Ancillary Agreement, no other Person has any right to the Company
Intellectual Property or the Technology and Know-How and (ii) the Company has
not, and the Company has not received any notice from any Person within the past
three (3) years claiming that it has, infringed, misappropriated, violated or
otherwise operated adversely to any Intellectual Property of any Person,
violated any export control law or regulation, violated the rights of any Person
(including rights to privacy or publicity), or conducted unfair competition or
trade practices under any applicable laws.
(d) To the Company's Knowledge, no Person is infringing or
misappropriating any rights with respect to the Company Intellectual Property or
engaging in other conduct that may diminish or undermine the Company
Intellectual Property, such as the disclosure of any of the Confidential
Information.
(e) The Company has taken all reasonable steps to protect its
rights in the Technology and Know-How. Without limiting the foregoing, (i) the
Company has, and enforces, a policy requiring each of its executive officers and
research and development personnel to execute non-competition, confidentiality
and non-solicitation agreements, and all such individuals have executed such an
agreement, and (ii) each of the Company's employees and other Persons who,
either alone or in concert with others, developed, invented, discovered,
derived, programmed or designed any of the Technology and Know-How, or who has
Knowledge of or access to information about any of the Technology and Know-How,
has entered into a written agreement with the Company providing that such
Technology and Know-How and other information are proprietary to the Company and
are not to be divulged or misused and transferring to the Company, without any
further consideration being given therefor, all of such employee's or other
Person's right, title and interest in and to such Technology and Know-How and to
all Company Intellectual Property with respect to such Technology and Know-How.
26 Execution Version
(f) Except as set forth in Section 4.19(f) of the Company
Ancillary Agreement, the Company has not sold, transferred, assigned, licensed
or subjected to any Encumbrance, any Company Intellectual Property or Technology
and Know-How, or any interest therein.
4.20 Employee Benefit Plans. All benefit and compensation plans,
contracts, policies or arrangements (other than government-sponsored employee
benefit arrangements) covering current or former employees of the Company and
current or former directors of the Company, and deferred compensation, stock
option, stock purchase, stock appreciation rights, stock based, incentive and
bonus plans (the "Employee Plans") are listed on Section 4.20 of the Company
Ancillary Agreement. All of the Employee Plans are in compliance with, and have
been administered and operated in accordance with, the terms of such Employee
Plans and applicable Regulations, except for any failure to so comply, operate
or administer the Employee Plans that could not reasonably be expected to have a
Material Adverse Effect. With respect to each Employee Plan, a complete and
correct copy of the most recent plan document or agreement, all related trust
and funding documents, and all amendments thereto; the most recent summary plan
description, and all related summaries of material modifications; and all
actuarial and financial reports for the last three plan years, where applicable,
have been provided or made available to BioMarin. No audit, claim, action or
litigation has been made, commenced or, to the Knowledge of the Company,
threatened with respect to any Employee Plan. The Company does not have any
obligations for retiree health and life benefits under any Employee Plan. The
Company may amend or terminate any such retiree plan at any time without
incurring any liability thereunder. There has been no amendment to, announcement
by the Company relating to, or change in employee participation or coverage
under, any Employee Plan which would increase materially the expense of
maintaining such plan above the level of the expense incurred therefor for the
most recent fiscal year. Neither the execution of this Agreement, shareholder
approval of this Agreement nor the consummation of the Transactions will (a)
entitle any employee of the Company to severance pay or any increase in
severance pay upon any termination of employment after the date hereof, (b)
accelerate the time of payment or vesting or trigger any payment or funding
(through a grantor trust or otherwise) of compensation or benefits under,
increase the amount payable or trigger any other obligation pursuant to, any of
the Employee Plans, (c) limit or restrict the right of the Company or, after the
consummation of the Transactions, Newco or BioMarin to merge, amend or terminate
any of the Employee Plans, or (d) cause the Company or, after the consummation
of the Transactions, Newco or BioMarin to record additional compensation expense
with respect to any outstanding stock option or other equity-based award.
4.21 Transactions with Affiliates. Except as set forth in Section 4.21
of the Company Ancillary Agreement, no shareholder, member, manager, officer,
director or employee of the Company nor any member of any such Person's
immediate family or any Person controlled by such Person or in which such Person
has a substantial beneficial interest, is presently, or within the prior two
years has been, a party to any transaction with the Company (other than for
services as officers, directors, employees or consultants of the Company),
including, without limitation, any contract, agreement or other arrangement (a)
providing for the furnishing of services by, (b) providing for the rental of
real or personal property from, or (c) otherwise requiring payments to, any such
Person or corporation, partnership, trust or other entity in which any such
Person has an interest as a shareholder, officer, director, trustee or partner.
27 Execution Version
4.22 Tax Matters.
(a) The Company has filed or caused to be filed all Tax Returns
that are or were required to be filed by or with respect to it pursuant to
applicable Regulations. All Tax Returns filed by the Company are true, correct,
and complete. The Tax Returns of the Company subject to such Taxes have not been
audited by any Governmental Authority, and the Company has not received notice
from any Governmental Authority of any pending examination or any proposed
deficiency, addition, assessment, demand for payment or adjustment relating to
or affecting the Company or its Assets and it has no reason to believe that any
Governmental Authority may assess (or threaten to assess) any Taxes for any
period ending on or prior to the Effective Date. Section 4.22 of the Company
Ancillary Agreement sets forth a true and complete copy of each Tax Return of
the Company with respect to the past three taxable years.
(b) The Company has (i) duly and timely paid, or made provision
for the payment of, all Taxes that have or may have become due pursuant to its
Tax Returns or otherwise, or pursuant to any assessment received by the Company
and (ii) withheld from each payment made to its past or present employees,
officers, directors and independent contractors, creditors, shareholders, other
third parties all Taxes and other material deductions required to be withheld
and have, within the time required by Regulation, paid such amounts to the
proper Governmental Authority.
(c) The charges, accruals, and reserves with respect to Taxes on
the books and records of the Company are adequate (determined in accordance with
Canadian GAAP) and are at least equal to the Company's liability for Taxes.
There exists no proposed tax assessment against the Company. All Taxes that the
Company is or was required by any Regulations to withhold or collect have been
duly withheld or collected and, to the extent required, have been paid to the
proper Governmental Authority or other Person.
4.23 Insurance. Section 4.23 of the Company Ancillary Agreement
contains a complete and accurate list of all Insurance Policies (showing as to
each policy or binder the carrier, policy number, coverage limits, expiration
dates, annual premiums, a general description of the type of coverage provided,
and the loss experience history of the Company by line of coverage) held or
maintained by the Company. Each Insurance Policy is in full force and effect,
insures the Company in the amounts described therein against the risks described
therein and provides coverage as is required by applicable Regulation and by any
and all Contracts. There is no Default under any such Insurance Policy nor has
there been any failure to give notice or present any claim under any Insurance
Policy in a due and timely fashion. There are no outstanding unpaid premiums
except in the Ordinary Course, and no notice of cancellation or nonrenewal of
any such Insurance Policy has been received by the Company. There are no
outstanding performance bonds covering or issued for the benefit of the Company.
No insurer has advised the Company that it intends to reduce coverage, increase
premiums or fail to renew any existing Insurance Policy.
4.24 Employees. The Company has no reason to believe ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ will not continue to serve in his current capacity following the
consummation of the Transactions.
28 Execution Version
4.25 Payments. The Company has not, directly or indirectly, paid,
delivered, offered or agreed to deliver any fee, commission or other sum of
money or item of property, however characterized, to any finder, agent, client,
customer, supplier, government official or other party, in Canada, the United
States or any other country, which was, at the time made or given, illegal under
any federal, state, provincial or local laws of Canada, the United States
(including, without limitation, the U.S. Foreign Corrupt Practices' Act) or any
other country having jurisdiction.
4.26 Business Relationships. The Company has not received any written
communication from any Significant Business Associate of any intention to
terminate or materially reduce such Significant Business Associate's
relationship with the Company or any other communication to such effect. To the
Company's Knowledge, no Significant Business Associate intends to terminate such
relationship, whether as a result of the Transactions or otherwise.
4.27 Compliance With Environmental and Health Laws. The Company is and
at all times has been in compliance with all Environmental Laws. The Company is
and at all times has been in compliance with all Health Laws.
4.28 Disclosure. No representation or warranty of the Company in this
Agreement and no information contained in the Company Ancillary Agreement, any
Ancillary Agreement or any other agreement executed by the Company in connection
with the Transactions contains any untrue statement of a material fact or omits
to state a material fact required to make the statements herein or therein not
misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BIOMARIN AND NEWCO
BioMarin and Newco hereby jointly and severally represent and warrant to
the Company as follows:
5.1 Organization. Each of BioMarin and Newco is a corporation duly
organized, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation with full power and authority to own
and lease its properties and assets and to conduct its business as currently
conducted and as proposed to be conducted. BioMarin is duly qualified to do
business and is in good standing in each jurisdiction where the character of its
properties owned or leased or the nature of its activities make such
qualification necessary.
5.2 No Conflict or Violation. Neither the execution, delivery or
performance of this Agreement nor the consummation of the Transactions, nor
compliance by BioMarin or Newco with any of the provisions hereof, will (a)
violate or conflict with any provision of the Certificate of Incorporation or
Bylaws of BioMarin or Newco, (b) violate, conflict with, or result in or
constitute a Default under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration
under, or result in the creation of any Encumbrance upon any of BioMarin's
assets under, any of the terms, conditions or provisions of any contract,
indebtedness, note, bond, indenture, security or pledge agreement, commitment,
license, lease, franchise, permit, agreement, authorization, concession, or
other instrument or obligation to which BioMarin or Newco is a party, (c)
violate any Regulation or Court Order,
29 Execution Version
except, in the case of clause (b) above, for such violations, Defaults,
terminations or accelerations which, in the aggregate, would not have a Material
Adverse Effect on the ability of BioMarin to consummate the Transactions.
5.3 Consents and Approvals.
(a) Each of BioMarin and Newco has all requisite power and
authority, and has taken all corporate action necessary, to execute and deliver
this Agreement, the Ancillary Agreements and to perform its obligations
hereunder and under any other agreement contemplated hereby and, subject to the
approval of the Court to the Arrangement, to consummate the Transactions. No
vote of the shareholders of BioMarin or Newco is required in connection with the
Arrangement. The execution and delivery of this Agreement and the Ancillary
Agreements by BioMarin and Newco and, subject to the Approval of the Court to
the Arrangement, the consummation by BioMarin and Newco of the Transactions have
been duly approved by all corporate action of BioMarin and Newco. No other
corporate proceedings on the part of BioMarin and Newco is necessary to
authorize its execution, delivery and performance of this Agreement and the
Ancillary Agreements and the consummation of the Transactions (other than Court
approval of the Arrangement). This Agreement and the Ancillary Agreements have
been duly executed and delivered by BioMarin and Newco and each of this
Agreement and each Ancillary Agreement is a legal, valid and binding obligation
of BioMarin and Newco, enforceable against each of BioMarin and Newco in
accordance with its respective terms, except that such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights of creditors
generally, and that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceedings therefor may be brought.
(b) Other than in connection with or in compliance with the
provisions of the HSR Act, if required, and the Securities Act, and other than
as described in this Agreement, no notice to, declaration, filing or
registration with, or authorization, consent or approval of, or permit from, any
domestic or foreign governmental or regulatory body or authority, or any other
Person, is required to be made or obtained by BioMarin or Newco in connection
with the execution, delivery and performance of this Agreement and the
consummation of the Transactions.
5.4 SEC Filings. As of their respective filing dates, each form,
statement, annual, quarterly and other report, registration statement (including
exhibits and amendments) and definitive proxy statement filed by BioMarin with
the SEC since January 1, 2000 (the "BioMarin SEC Documents"), which are all the
documents (other than preliminary material) that BioMarin was required to file
with the SEC since such date, complied in all material respects with the
requirements of the Exchange Act. As of their respective filing dates, none of
the BioMarin SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances in which they
were made, not misleading. Since the filing of the most recent Quarterly Report
on Form 10-Q included in the BioMarin SEC Documents, neither of BioMarin's
Certificate of Incorporation nor Bylaws have been amended or modified. The
consolidated balance sheets and the related consolidated statements of
operations, stockholders'
30 Execution Version
equity (deficit) and cash flows (including the related notes thereto) of
BioMarin included in the BioMarin SEC Documents were prepared in accordance with
the books and records of BioMarin and U.S. GAAP and present fairly the financial
position of BioMarin as of their respective dates, and the results of its
operations and its cash flows for the periods presented therein (subject, in the
case of the interim financial statements, to normal year-end adjustments).
5.5 Absence of Certain Changes or Events. Since the date of the
filing of its most recent Quarterly Report on Form 10-Q included in the BioMarin
SEC Documents, there has not been any (a) Material Adverse Change or change in
accounting methods, principles or practices affecting in any material respect
BioMarin, (b) declaration, setting aside, or payment of dividends or
distributions by BioMarin, or (c) redemption, purchase or other acquisition of
any securities of BioMarin, other than in connection with the BioMarin Option
Plan.
5.6 Suspension and Trading. The BioMarin Common Shares are currently
quoted on Nasdaq. No order ceasing or suspending trading in securities of
BioMarin is outstanding and no proceedings for this purpose have been instituted
or, to the Knowledge of BioMarin, are pending or threatened.
5.7 No Brokers. Except for BioMarin's engagement of Leerink, Swann,
Garrity, Sollami, ▇▇▇▇▇ & ▇▇▇▇, Inc. for the rendering of a fairness opinion to
it regarding the Transactions, neither BioMarin nor any of its officers,
directors, employees or Affiliates has employed or made any agreement with any
broker, finder or similar agent or any Person which will result in the
obligation of BioMarin or the Company or any of their respective Affiliates to
pay any finder's fee, brokerage fees or commission or similar payment in
connection with the Transactions.
5.8 Securities. At the Closing, the issuance of BioMarin Common
Shares and Exchangeable Shares to be issued at such Closing in accordance
herewith will have been duly authorized, and, upon their issuance in accordance
with the terms of this Agreement and assuming the truth of the representations
and warranties of the Company set forth in Article IV, such BioMarin Common
Shares and Exchangeable Shares will be validly issued, fully paid and
non-assessable, and will not be subject to any preemptive or similar right.
5.9 Securities Exemption. The offer and sale of the BioMarin Common
Shares and the Exchangeable Shares upon their issuance at the Effective Time in
accordance with the terms of this Agreement and the Plan will be exempt from
registration under the Securities Act pursuant to Section 3(a)(10) of the
Securities Act.
5.10 Transferability. The BioMarin Common Shares and the Exchangeable
Shares upon their issuance at the Effective Time in accordance with the terms of
this Agreement and the Plan will not be restricted securities within the meaning
of Rule 144 of the Securities Act, will not bear a restrictive legend and will
be fully transferable under U.S. federal securities laws by the holders thereof
(subject to Rule 145(d) under the Securities Act).
5.11 Disclosure. No representation or warranty of BioMarin or Newco in
this Agreement and no information contained in the Company Ancillary Agreement,
any Ancillary Agreement or any other agreement executed by BioMarin or Newco in
connection with the
31 Execution Version
Transactions contains any untrue statement of a material fact or omits to state
a material fact required to make the statements herein or therein not
misleading.
ARTICLE VI
COVENANTS
The Company and BioMarin each covenant with the other as follows:
6.1 Further Assurances. Upon the terms and subject to the conditions
contained herein, the parties agree, both before and after the Closing, to (a)
use commercially reasonable efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable to
consummate and make effective the Transactions, (b) execute any documents,
instruments or conveyances of any kind which may be reasonably necessary or
advisable to carry out any of the Transactions, and (c) cooperate with each
other in connection with the foregoing. Without limiting the foregoing, the
parties agree to cooperate with each other and use their respective commercially
reasonable efforts to (w) obtain all necessary waivers, consents and approvals
from other parties to consummate the Transactions; (x) obtain all necessary
Permits as are required to be obtained under any Regulations, (y) give all
notices to, and make all registrations and filings with, third parties,
including, without limitation, submissions of information requested by
Governmental Authorities, and (z) fulfill all conditions to the consummation of
the Transactions. Each party will commence all action required under this
Section 6.1 by a date which is early enough to allow the Transactions to be
consummated as soon as practicable prior to the Termination Date.
6.2 No Solicitation.
(a) From the date hereof through the Closing or the earlier
termination of this Agreement, the Company shall not, and shall cause its
shareholders or Representatives (including, without limitation, investment
bankers, attorneys and accountants), not to, directly or indirectly, enter into,
solicit, initiate or continue any discussions or negotiations with, or encourage
or respond to any inquiries or proposals by, or participate in any negotiations
with, or provide any information to, or otherwise cooperate in any other way
with any Person or group, other than BioMarin and their Representatives,
concerning any sale of all or a portion of the Assets or any shares of the
Company's Stock, including, without limitation, any merger, consolidation,
liquidation, dissolution or similar transaction (each such transaction being
referred to herein as a "Proposed Acquisition Transaction"). The Company and its
Affiliates shall not, directly or indirectly, through any Representative or
otherwise, solicit, initiate or encourage the submission of any proposal or
offer from any Person (including, without limitation, a "person" as defined in
Section 13(d)(3) of the Exchange Act) or entity relating to any Proposed
Acquisition Transaction or participate in any negotiations regarding, or furnish
to any other Person any information with respect to the Company or the Assets
for the purposes of, or otherwise cooperate in any way with, or assist or
participate in, facilitate or encourage, any effort or attempt by any other
Person to seek or effect a Proposed Acquisition Transaction. The Company agrees
not to release any third party from, or waive any provision of, any
confidentiality agreement to which the Company is a party.
32 Execution Version
(b) The Company will immediately notify BioMarin if any
discussions or negotiations are sought to be initiated, any inquiry or proposal
is made, or any information is requested with respect to any Proposed
Acquisition Transaction and notify BioMarin of the terms of (and provide
BioMarin with a copy of) any proposal which it may receive in respect of any
such Proposed Acquisition Transaction, including, without limitation, the
identity of the prospective purchaser or soliciting party.
6.3 Notification of Certain Matters. From the date hereof through the
Closing, (a) the Company shall give prompt notice to BioMarin of (i) the
occurrence, or failure to occur, of any event which occurrence or failure would
be likely to cause any representation or warranty made by the Company contained
in this Agreement, the Company Ancillary Agreement or in any exhibit or Schedule
hereto or thereto to be untrue or inaccurate and (ii) any failure of the Company
or any of its Affiliates, or of any of its shareholders or Representatives, to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by it under this Agreement or any exhibit or Schedule hereto and
(b) BioMarin shall give prompt notice to the Company of (i) the occurrence, or
failure to occur, of any event which occurrence or failure would be likely to
cause any representation or warranty of BioMarin or Newco contained in this
Agreement or in any exhibit or Schedule hereto to be untrue or inaccurate and
(ii) any failure of BioMarin or Newco to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it under this
Agreement or any exhibit or Schedule hereto; provided, however, that such
disclosure under this Section 6.3 shall not be deemed to cure any breach of a
representation, warranty, covenant or agreement or to satisfy any condition. The
Company shall promptly notify BioMarin of any Default, the threat or
commencement of any Action, or any development that occurs before the Closing
that could reasonably be anticipated in any way to materially and adversely
affect the Company or materially and adversely affect the Company's ability to
consummate the Transactions.
6.4 Access.
(a) Prior to the Effective Date. Between the date hereof and the
Effective Date, the Company will give to BioMarin and its Representatives full
access to the Company's facilities, employees and all the properties, documents,
contracts, personnel files and other records of the Company and shall furnish
BioMarin with copies of such documents and with such information with respect to
the Company as BioMarin may from time to time reasonably request. The Company
will disclose to BioMarin and make available to it and its Representatives all
books, contracts, accounts, personnel records, letters of intent, papers,
records, communications with regulatory authorities and other documents
reasonably relating to the Company. All such access shall be granted during
normal business hours.
(b) After the Effective Date. Subject to the terms and conditions
contained in this Section, for each of the first four (4) calendar quarters
ending after the Effective Date and for each semi-annual period thereafter,
BioMarin will prepare a report (a "Report") summarizing activities related to
the development of the Company Technology during the quarter or semi-annual
period, as applicable, then ended. BioMarin shall deliver to the Shareholder
Designee (as defined below) each Report within thirty (30) days after the end of
the period to which it relates. The Shareholder Designee shall initially be Mr.
Yad ▇▇▇▇▇▇ and should such person cease to act as the Shareholder Designee for
any reason, or no reason, a replacement shall be chosen by
33 Execution Version
mutual agreement of BioMarin and the Majority Shareholders (as such term is
defined in the Escrow Agreement). Subject to the terms and conditions contained
in this Section, the Shareholder Designee shall have the right at its expense to
meet in person with a representative of BioMarin at BioMarin's principal offices
not more than twice during the year following the Effective Date and not more
than once per year thereafter to discuss the most recently delivered Report.
BioMarin's obligations under this Section shall continue only until the earlier
of (x) the Automatic Redemption Date (as defined in the Exchangeable Shares
Terms), and (y) the date by which Newco or BioMarin Nova Scotia has paid in the
aggregate Redemption Price(s) or Redemption Call Price(s) (as defined in the
Exchangeable Shares Terms ) for the Exchangeable Shares of eight million dollars
($8,000,000). Notwithstanding the foregoing, the Company acknowledges and agrees
that: (i) the management of the Company and employment of its capital, resources
and personnel, including the Company Technology, shall be solely within the
business judgment and discretion of BioMarin, any of its management designees
and the officers and directors of the Company, (ii) BioMarin has no obligation
to consider the views of the Shareholder Designee with respect to any and all
matters affecting the Company and its business, finances and affairs, including
the Company Technology, and (iii) BioMarin shall have no liability or obligation
to the Shareholder Designee or any Company Shareholder with respect to the
business judgment, management, and discretion exercised by BioMarin, its
management designees or the officers and directors of the Company regarding the
Company's business, its assets, liabilities, employees or resources or the use,
development or deployment thereof, including, but not limited to, the
development of the Company Technology.
6.5 Conduct of Business. From the date hereof through the Closing,
the Company shall operate in the Ordinary Course, and the Company will not take
any action inconsistent with this Agreement or with the consummation of the
Transactions. Without limiting the generality of the foregoing, the Company will
not do any of the following without the prior written consent of BioMarin, which
may be withheld by BioMarin in its sole and absolute discretion:
(a) change or amend its Organizational Documents;
(b) enter into, extend, materially modify, terminate or renew any
Contract or Lease, except in the Ordinary Course;
(c) sell, assign, transfer, convey, lease, mortgage, pledge or
otherwise dispose of or encumber any of the Assets, or any interests therein,
except in the Ordinary Course;
(d) except in the Ordinary Course, incur any Liability;
(e) (i) take any action with respect to the grant of any bonus,
severance or termination pay (otherwise than in the Ordinary Course) or with
respect to any increase of benefits payable under its severance or termination
pay policies or agreements in effect on the date hereof or increase in any
manner the compensation or fringe benefits of any employee (other than as may be
required pursuant to the terms of an existing Contract, which requirement and
terms are described in the Company Ancillary Agreement) or pay any benefit not
required by any existing employee plan or policy;
(ii) make any change in its management structure;
34 Execution Version
(iii) adopt, enter into or amend any employee plan, agreement
(including, without limitation, any employment agreement), trust, fund or other
arrangement for the benefit or welfare of any employee, except for any such
amendment as may be required to comply with applicable Regulations; or
(iv) fail to maintain all employee plans in accordance with
applicable Regulations in all material respects;
(f) acquire by merger or consolidation with, or merge or
consolidate with, or purchase substantially all of the assets of, or otherwise
acquire any assets or business of any corporation, partnership, association or
other business organization or division thereof;
(g) declare, set aside, make or pay any dividend or other
distribution to, or make any other payment for any reason to the shareholders of
the Company or any Affiliate of any of such shareholders;
(h) willingly allow or permit to be done, any act by which any of
the Insurance Policies may be suspended, impaired or canceled;
(i) (i) fail to pay its accounts payable and any debts owed or
obligations due, or pay or discharge when due any Liabilities, in the Ordinary
Course other than accounts payable or debts that are the subject of good faith
disputes and for which appropriate reserves are established in the Financial
Statements; or
(ii) fail to use its reasonable commercial efforts to collect
its accounts receivable in the Ordinary Course;
(j) enter into (other than in the Ordinary Course and as would
not have a Material Adverse Effect), renew, modify or revise any agreement or
transaction with, or forgive any indebtedness of the Company or any of its
Affiliates;
(k) fail to maintain the Assets in substantially their current
state of repair, excepting normal wear and tear;
(l) make any loans or advances to any Person, except for advances
to any employee for reasonable business expenses incurred in the Ordinary
Course;
(m) make any income tax election or settlement or compromise with
tax authorities;
(n) fail to comply in all material respects with all Regulations
applicable to it;
(o) intentionally do any other act for the purpose of causing any
representation or warranty of the Company in this Agreement to be or become
untrue in any material respect (or in any respect if such representation or
warranty is qualified as to materiality);
35 Execution Version
(p) fail to use its reasonable efforts, consistent with past or
reasonable commercial practices, to (i) retain its employees and (ii) maintain
the Company so that such employees will remain available to BioMarin on and
after the Effective Date, (iii) maintain existing relationships with suppliers,
customers and others having business dealings with it and (iv) otherwise to
preserve the goodwill of the Company so that such relationships and goodwill
will be preserved on and after the Effective Date;
(q) make any payment of any kind whatsoever to or on behalf of
any shareholder, beneficiary, member or partner of the Company or any Affiliate
of the Company, whether in payment of an account payable or debt owed or
obligation due or Liability to any such Person or otherwise;
(r) license any of its Intellectual Property, including the
Company Technology, to any Person; or
(s) enter into any agreement, or otherwise become obligated, to
do any action prohibited hereunder.
6.6 New Company Products. BioMarin and the Company have developed a
business plan to allocate funding to products of the Company that use the
Company Technology but that are not New BioMarin Products (such products, "New
Company Products"), based on a reasonable determination of what resources are
necessary (using standards commonly used in the pharmaceutical industry) in
order to demonstrate certain levels of proof of principle, sufficient to
generate interest from third parties for such New Company Products.
Notwithstanding the foregoing, BioMarin shall not be bound by such business plan
and shall have the sole authority and right to make and direct investment
decisions of the Company, including, without limitation, any decision related to
the Company Technology. Notwithstanding the foregoing, the Company acknowledges
and agrees that: (i) the management of the Company and employment of its
capital, resources and personnel, including the Company Technology, shall be
solely within the business judgment and discretion of BioMarin, any of its
management designees and the officers and directors of the Company, (ii)
BioMarin shall not be bound by, and in its sole and absolute discretion may
deviate from, such Business Plan, and (iii) BioMarin shall have no liability or
obligation to any Company Shareholder with respect to the business judgment,
management, and discretion exercised by BioMarin, its management designees or
the officers and directors of the Company regarding the Company's business, its
assets, liabilities, employees or resources or the use, development or
deployment thereof, including, but not limited to, the development of the
Company Technology.
6.7 Management Information Circular; Board Recommendations; Other
Filings.
(a) As promptly as practicable after the execution of this
Agreement, the Company will prepare the Management Information Circular.
BioMarin shall provide promptly to the Company such information concerning its
business and financial and other affairs as, in the reasonable judgment of
BioMarin or its counsel, may be required or appropriate for inclusion in the
Management Information Circular, or in any amendments or supplements thereto,
and shall cause its counsel and auditors to cooperate with the other's counsel
and auditors in the preparation of the Management Information Circular. The
Company will afford BioMarin an
36 Execution Version
opportunity to review the Management Information Circular and all materials to
be submitted to the Court, and shall make all such changes as are reasonably
requested. The Company will respond to any comments of the Court with the
acceptance of BioMarin and will use its commercially reasonable efforts to have
the Interim Order issued as promptly as practicable after such filing. The
Company will cause the Management Information Circular to be mailed to its
shareholders at the earliest practicable time after the Interim Order has been
granted by the Court. As promptly as practicable after the date of this
Agreement, the Company and BioMarin will prepare and file any other filings
required to be filed by it pursuant to the requirements of the CBCA, the Interim
Order, and applicable Regulations relating to the Arrangement and the
Transactions (the "Other Filings"). Each of the Company and BioMarin will notify
the other promptly upon the receipt of any comments from the Court or its staff
or any other government officials and of any request by the Court or its staff
or any other government officials for amendments or supplements to the
Management Information Circular or any Other Filing or for additional
information and will supply the other with copies of all correspondence between
such party or any of its Representatives, on the one hand, and the Court or its
staff or any other government officials, on the other hand, with respect to the
Management Information Circular, the Arrangement or any Other Filing. Each of
the Company and BioMarin will cause all documents that it is responsible for
filing with the Court or other regulatory authorities under this Section 6.7(a)
to comply in all material respects with all applicable Regulations. Whenever any
event occurs which is required to be set forth in an amendment or supplement to
the Management Information Circular or any Other Filing, the Company or
BioMarin, as the case may be, will promptly inform the other of such occurrence
and cooperate in filing with the Court or its staff or any other government
officials, and/or mailing to shareholders of the Company, such amendment or
supplement.
(b) Each of the Company and BioMarin shall ensure that the
information supplied by it in writing for inclusion in the Management
Information Circular does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements contained therein not misleading in light of the circumstances in
which they are made.
(c) The Management Information Circular will include the
recommendation of the Board of Directors that the shareholders of the Company
vote in favor of approval of the Arrangement.
(d) As soon as practicable after the execution of this Agreement,
BioMarin shall prepare, with the co-operation of the Company, applications and
will file such applications with the Commissions in the Provinces of British
Columbia and Ontario and exercise its commercially reasonable efforts to cause
such Commissions to grant the Securities Exemption Orders. BioMarin and the
Company shall each use commercially reasonable efforts to cause such
applications to comply with the requirements of Canadian Securities Legislation.
Each of BioMarin and the Company agrees to provide promptly to the other such
information concerning its business and financial and other affairs as, in the
reasonable judgment of the providing party or its counsel, may be required or
appropriate for inclusion in such applications, or in any amendments or
supplements thereto, and to cause its counsel and auditors to co-operate with
the other's counsel and auditors in the preparation of such application. The
Company will promptly advise BioMarin, and BioMarin will promptly advise the
Company, in writing, if at any time
37 Execution Version
prior to the Effective Time either the Company or BioMarin shall obtain
Knowledge of any facts that might make it necessary or appropriate to amend or
supplement the applications in order to make the statements contained or
incorporated by reference therein not misleading or to comply with Canadian
Securities Legislation.
6.8 Meeting of the Company Shareholders.
(a) Promptly after the date hereof, the Company will take all
action pursuant to the requirements of the CBCA, the Interim Order, applicable
Regulations and the Organizational Documents to convene the Company Shareholders
Meeting to be held as promptly as practicable, and in any event the Company will
use its reasonable commercial efforts to convene such meeting not later than
February 28, 2002 for the purpose of voting upon the Arrangement. The Company
shall ensure that the Company Shareholders Meeting is called, noticed, convened,
held and conducted, and that all proxies solicited in connection with the
Company Shareholders Meeting are solicited, in compliance with all applicable
Regulations (including the Interim Order and the Organizational Documents). The
Company will use its commercially reasonable efforts to solicit from its
shareholders proxies in favor of the approval of the Arrangement.
Notwithstanding anything to the contrary contained in this Agreement, the
Company may adjourn or postpone the Company Shareholders Meeting to the extent
necessary to ensure that any necessary supplement or amendment to the Management
Information Circular is provided to the Company's shareholders in advance of a
vote on the Arrangement or, if as of the time for which the Company Shareholders
Meeting is originally scheduled (as set forth in the Management Information
Circular) there are insufficient Company Common Shares or Company Preferred
Shares represented (either in Person or by proxy) to constitute a quorum
necessary to conduct the business of the Company Shareholders Meeting.
(b) The Board of Directors shall recommend that the Company's
shareholders vote in favor of and adopt and approve the Arrangement at the
Company Shareholders Meeting. The Management Information Circular shall include
a statement to the effect that the Board of Directors has recommended
(unanimously, if such is the case) that the Company's shareholders vote in favor
of and adopt and approve the Arrangement at the Company Shareholders Meeting.
Neither the Board of Directors nor any committee thereof shall withdraw, amend
or modify, or propose or resolve to withdraw, amend or modify in a manner
adverse to BioMarin, the recommendation of the Board of Directors that the
Company's shareholders vote in favor of and adopt and approve the Arrangement.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS of the company
The obligations of the Company to consummate the Transactions are
subject to the satisfaction, on or prior to the Effective Date, of each of the
following conditions, any of which may be waived by the Company:
7.1 Representations, Warranties and Covenants. The representations
and warranties of BioMarin set forth in this Agreement shall be true and correct
as of the date of this Agreement and as of the Effective Date as though made on
and as of the Effective Date, except
38 Execution Version
to the extent that such representations and warranties expressly relate to an
earlier date (in which case such representations and warranties shall be true
and correct on and as of such earlier date). BioMarin shall have performed all
agreements and covenants required hereby to be performed by it prior to or on
the Effective Date.
7.2 Permits, Consents and Regulatory Compliance. The Permits,
consents, approvals and waivers from Governmental Authorities and other parties
necessary to the consummation of the Transactions described in the Company
Ancillary Agreement shall have been obtained. The applicable waiting period,
including any extension thereof, under the HSR Act shall have expired, if so
required.
7.3 No Actions or Court Orders. No Action by any Governmental
Authority or other Person shall have been instituted or, to the extent the
Company reasonably concludes that there is a basis therefor, threatened which
questions the validity or legality of the Transactions and which could
reasonably be expected to have a Material Adverse Effect. There shall not be any
Regulation or Court Order that makes the Transactions illegal or otherwise
prohibited.
7.4 Opinions of Counsel.
(a) United States Counsel. BioMarin shall have delivered to the
Company an opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to
BioMarin, dated as of the Effective Date, in form and substance as set forth in
Exhibit C-1 to the Company Ancillary Agreement.
(b) Canadian Counsel. BioMarin shall have delivered to the
Company an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel to
BioMarin, dated as of the Effective Date, in form and substance as set forth in
Exhibit C-2 to the Company Ancillary Agreement.
7.5 Certificates. BioMarin shall furnish the Company with such
certificates of its officers and others to evidence compliance with the
conditions set forth in Section 7.1 as may be reasonably requested by the
Company.
7.6 Corporate Documents. The Company shall have received from
BioMarin resolutions adopted by the board of directors of BioMarin approving
this Agreement and the Transactions, certified by BioMarin's corporate
secretary.
7.7 Shareholder Approval. The Arrangement shall have been duly
approved by the Required Company Shareholder Vote, and in accordance with any
additional conditions which may be imposed by the Interim Order and which are
satisfactory to the Company, acting reasonably.
7.8 Securities Exemption Orders. BioMarin and the Company shall have
received all necessary Securities Exemption Orders.
7.9 Court Orders. The Interim Order and the Final Order shall each
have been obtained on terms satisfactory to the Company, acting reasonably, and
shall not have been set aside or modified in a manner unacceptable to the
Company on appeal or otherwise.
39 Execution Version
7.10 Support Agreement. BioMarin shall deliver an executed Support
Agreement in the form attached to this Agreement as Exhibit F.
7.11 No Material Change. No act, event or condition shall have
occurred after the date hereof which has had or could reasonably be expected to
have a Material Adverse Change with respect to BioMarin.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF BIOMARIN AND NEWCO
The obligations of BioMarin and Newco to consummate the Transactions are
subject to the satisfaction, on or prior to the Effective Date, of each of the
following conditions, any of which conditions may be waived by BioMarin;
provided, however, that the occurrence of the Closing will not be deemed a
waiver of the breach of any representation or warranty of the Company hereunder:
8.1 Representations, Warranties and Covenants. The representations
and warranties of the Company set forth in this Agreement and the Company
Ancillary Agreement shall be true and correct as of the date of this Agreement
and as of the Effective Date as though made on and as of the Effective Date,
except to the extent that such representations and warranties expressly relate
to an earlier date (in which case such representations and warranties shall be
true and correct on and as of such earlier date). The Company shall have
performed all agreements and covenants required hereby to be performed by it
prior to or on the Effective Date.
8.2 Permits, Consents and Regulatory Compliance. All Permits,
consents, approvals and waivers from Governmental Authorities and other parties
necessary to the consummation of the Transactions shall have been obtained. The
applicable waiting period, including any extension thereof, under the HSR Act
shall have expired, if so required.
8.3 No Actions or Court Orders. No Action by any Governmental
Authority or other Person shall have been instituted or, to the extent BioMarin
reasonably concludes there is a basis therefor, threatened which questions the
validity or legality of the Transactions and which could reasonably be expected
to have a Material Adverse Effect. There shall not be any Regulation or Court
Order that makes the Transactions illegal or otherwise prohibited.
8.4 Opinion of Counsel. The Company shall have delivered to BioMarin
an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, special counsel to the Company, dated as of the
Effective Date, in form and substance reasonably satisfactory to BioMarin, with
respect to the matters set forth in Exhibit D to the Company Ancillary
Agreement.
8.5 Certificates. The Company shall furnish BioMarin with such
certificates of its officers and others to evidence compliance with the
conditions set forth in Section 8.1 as may be reasonably requested by BioMarin.
8.6 Release of All Claims. Each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Z. ▇▇▇
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Company a
general release of all
40 Execution Version
claims against the Company in the form attached as Exhibit E to the Company
Ancillary Agreement (the "General Release").
8.7 Ancillary Agreements. The following agreements ("Ancillary
Agreements") will be delivered, or will have been delivered, as follows:
(a) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall have delivered an executed
employment agreement with the Company in a form acceptable to BioMarin in its
sole discretion.
(b) The Company, the Shareholders' Representative and the
Majority Shareholders shall deliver the Escrow Agreement.
(c) The Shareholders' Representative shall deliver the
Shareholders' Representative Agreement duly executed by it and the Majority
Shareholders (as defined in the Escrow Agreement).
8.8 Shareholders Approval. The Arrangement shall have been duly
approved by Required Company Shareholder Vote, and in accordance with any
additional conditions which may be imposed by the Interim Order and which are
satisfactory to BioMarin, acting reasonably.
8.9 Corporate Documents. BioMarin shall have received from the
Company resolutions adopted by the Board of Directors approving this Agreement
and the Transactions, certified by the Company's corporate secretary.
8.10 Court Orders. The Interim Order and the Final Order shall each
have been obtained on terms satisfactory to BioMarin, acting reasonably, and
shall not have been set aside or modified in a manner unacceptable to BioMarin
on appeal or otherwise.
8.11 Securities Exemption Orders. BioMarin and the Company shall have
received all necessary Securities Exemption Orders.
8.12 No Material Change. No act, event or condition shall have
occurred after the date hereof which has had or could reasonably be expected to
have a Material Adverse Change with respect the Company.
8.13 Return of Deposit. BioMarin shall have received from the Company
a repayment of its good faith deposit of $100,000 paid pursuant to the
Memorandum of Understanding by and between the Company and BioMarin dated
September 6, 2001.
8.14 Termination of Certain Agreements. The following agreements shall
have been terminated pursuant to an agreement reasonably acceptable to BioMarin:
(a) that certain Amended and Restated Shareholders' Agreement, as amended dated
as of January 19, 2000, by and among the Company, 442668 B.C. Ltd., ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, MDS Ventures Pacific Inc. (in its capacity as General Partner of
British Columbia Life Sciences Limited Partnership and on behalf of Royal Bank
Ventures Inc.), Neuroscience Partners Limited Partnership, Canadian Medical
Discoveries Fund Inc., Ventures West VI Limited Partnership, Bank of Montreal
Capital Corporation, Working Opportunity Fund (EVCC) Ltd., Business Development
Bank of Canada, Royal Bank Ventures Inc., and Futurefund Capital (VCC)
Corporation; (b) Consulting,
41 Execution Version
Non-Competition and Confidentiality Agreement dated as of June 22, 2001, by and
among Synapse Technologies Inc., Hanbury Management Ltd., and Z. ▇▇▇ ▇▇▇▇▇▇▇▇▇,
as amended by that certain letter agreement dated December 17, 2001; (c)
Indemnity Agreement dated as of June 22, 2001, by and between Working
Opportunity Fund (EVCC) Ltd., ▇▇▇ ▇▇▇▇▇▇▇▇▇ and Synapse Technologies Inc.; (d)
Letter Agreement dated as of January 18, 2001, by and among Research Capital
Corporation, TD Securities Inc. and Synapse Technologies Inc., as amended by
Amendment to Letter Agreement of January 18, 2001, dated as of July 16, 2001, by
and between Research Capital Corporation and Synapse Technologies Inc.; and (e)
Letter Agreement dated as of September 6, 2001, by and between Research Capital
Corporation and Synapse Technologies Inc.
8.15 Dissenters. Holders of: (i) no more than one percent (1%) in the
aggregate of the issued and outstanding Company Common Shares; and (ii) no more
than one percent (1%) in the aggregate of the Company Preferred Shares shall
have exercised (and not withdrawn such exercise) Dissenters' Rights in respect
of the Arrangement.
ARTICLE IX
SURVIVAL; INDEMNIFICATION
9.1 Survival of Representations. The representations and warranties
of the parties hereto contained in this Agreement, the Company Ancillary
Agreement or in any writing executed by a party hereto and delivered at the
Closing pursuant to this Agreement shall survive the execution and delivery of
this Agreement until the third anniversary of the Closing; provided, however,
that the representations of the Company set forth in Sections 4.2, 4.4, 4.6,
4.19, 4.20, 4.22, 4.27 and 4.28 shall survive indefinitely. Notwithstanding the
foregoing, any obligation in respect of a claim for indemnity as a result of a
breach of any representation or warranty of any party that is asserted in
writing with reasonable specificity as to the nature and, if then determinable,
amount of the claim prior to the third anniversary shall survive past such date.
9.2 Indemnification.
(a) By the Company. The Company shall indemnify, save and hold
harmless BioMarin, its Affiliates and Subsidiaries, and each of their respective
Representatives, from and against any and all Damages, incurred in connection
with, arising out of, resulting from or incident to (i) any breach of any
representation or warranty or the inaccuracy of any representation, made by the
Company in or pursuant to this Agreement or the Company Ancillary Agreement, or
(ii) any breach of any covenant or agreement made by the Company in or pursuant
to this Agreement or the Company Ancillary Agreement.
The term "Damages" as used in this Section is not limited to
matters asserted by third parties against the Company or BioMarin, but includes
Damages incurred or sustained by any of them in the absence of third party
claims.
(b) By BioMarin. BioMarin shall indemnify and save and hold
harmless the Company and its respective Representatives from and against any and
all Damages incurred in connection with, arising out of, resulting from or
incident to (i) any breach of any representation or warranty or the inaccuracy
of any representation, made by BioMarin or Newco in or pursuant
42 Execution Version
to this Agreement or (ii) any breach of any covenant or agreement made by
BioMarin or Newco in or pursuant to this Agreement.
(c) Cooperation. The indemnified party shall cooperate in all
reasonable respects with the indemnifying party and such attorneys in the
investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom; provided, however, that the indemnified party may, at its own
cost, participate in the investigation, trial and defense of such lawsuit or
action and any appeal arising therefrom. The parties shall cooperate with each
other in any notifications to insurers.
(d) Defense of Claims. If a claim for Damages (a "Claim") is to
be made by a party entitled to indemnification hereunder against the
indemnifying party or parties, the party claiming such indemnification shall
give written notice (a "Claim Notice") to the indemnifying party as soon as
practicable after the party entitled to indemnification becomes aware of any
fact, condition or event which may give rise to Damages for which
indemnification may be sought under this Section 9.2. The failure of any
indemnified party to give timely notice hereunder shall not affect rights to
indemnification hereunder, except to the extent that the indemnifying party
demonstrates actual damage caused by such failure. After such notice, the
indemnifying party shall be entitled, if it so elects at its own cost, risk and
expense, (i) to take control of the defense and investigation of such lawsuit or
action, (ii) to employ and engage attorneys of its own choice to handle and
defend the same unless the named parties to such action or proceeding include
both the indemnifying party and the indemnified party and the indemnified party
has been advised in writing by counsel that there may be one or more legal
defenses available to such indemnified party that are different from or
additional to those available to the indemnifying party, in which event the
indemnified party shall be entitled, at the indemnifying party's cost, risk and
expense, to separate counsel of its own choosing, and (iii) to compromise or
settle such claim, which compromise or settlement shall be made only with the
written consent of the indemnified party or parties, such consent not to be
unreasonably withheld; provided, however, if the remediation or resolution of
any such Claim will occur on or at any property or is reasonably expected to
have a Material Adverse Effect on the operations of the Company and the
indemnified parties are one or more of BioMarin and the Company or their
respective Affiliates, Subsidiaries or Representatives in their capacities as
such, then, notwithstanding the foregoing, the indemnified party shall be
entitled to control such remediation or resolution, including, without
limitation, to take control of the defense and investigation of such lawsuit or
action, to employ and engage attorneys of its own choice to handle and defend
the same, at the indemnifying parties' cost, risk and expense, and to compromise
or settle such Claim. If the indemnifying party fails to assume the defense of
such claim within fifteen (15) calendar days after receipt of the Claim Notice,
the indemnified party against which such claim has been asserted will, upon
delivering notice to such effect to the indemnifying party, have the right to
undertake at the indemnifying party's or parties' cost and expense, the defense,
compromise or settlement of such claim on behalf of and for the account and risk
of the indemnifying party; provided, however, that such Claim shall not be
compromised or settled without the written consent of the indemnifying party,
which consent shall not be unreasonably withheld. In the event the indemnified
party assumes the defense of the claim, the indemnified party will keep the
indemnifying party or parties reasonably informed of the progress of any such
defense, compromise or settlement. The indemnifying party or parties shall be
liable for any settlement of any action effected pursuant to and in accordance
with this Section 9.2 and for any final judgment (subject to any right of
appeal), and the
43 Execution Version
indemnifying party or parties agree to indemnify and hold harmless the
indemnified party from and against any Damages by reason of such settlement or
judgment.
ARTICLE X
MISCELLANEOUS
10.1 Termination.
(a) Termination. This Agreement may be terminated at any time
prior to the Closing:
(i) By mutual written consent of the Company and BioMarin;
(ii) By BioMarin or the Company if the Closing shall not have
occurred on or before the "Termination Date" (as defined below); provided,
however, that this provision shall not be available to a party if any other
party has the right (or upon lapse of the ten (10) day period referred to in the
following clause (iii) or clause (iv) would have the right) to terminate this
Agreement under clause (iii) or clause (iv) of this Section 10.1(a);
(iii) By the Company in the event of a material breach by
BioMarin or Newco of any representation, warranty, covenant or other agreement
contained in this Agreement which (A) would give rise to the failure of a
condition set forth in this Agreement and (B) cannot be or has not been cured
within ten (10) days after the giving of written notice to BioMarin of such
breach (a "Material Breach") provided that the Company is not then in material
breach of any representation, warranty, covenant or other agreement contained in
this Agreement; provided, however, that a breach of the covenants set forth in
Section 10.13 (Confidentiality) shall not be subject to the ten (10) day cure
period;
(iv) By BioMarin in the event of a material breach by the
Company of any representation, warranty, covenant or other agreement contained
in this Agreement which (A) would give rise to the failure of a condition set
forth in this Agreement and (B) cannot be or has not been cured within ten (10)
days after the giving of written notice to the breaching party of such breach (a
"Material Breach") provided that BioMarin is not then in material breach of any
representation, warranty, covenant or other agreement contained in this
Agreement; provided, however, that a breach of the covenants set forth in
Section 6.2 (Non-Solicitation) and Section 10.13 (Confidentiality) shall not be
subject to the ten (10) day cure period; or
(v) By either BioMarin or the Company if any court of
competent jurisdiction or other Governmental Authority shall have issued an
order, decree or ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the Transactions and such order, decree,
ruling or other action shall have become final and nonappealable.
The term "Termination Date" shall mean April 15, 2002.
44 Execution Version
(b) In the Event of Termination. In the event of termination of
this Agreement:
(i) Each party will deliver all documents, work papers and
other material of any other parties relating to the Transactions, whether so
obtained before or after the execution hereof, to the party furnishing the same;
and
(ii) All further obligations of the parties under this
Agreement will terminate, except that the obligations in Section 10.9 (Expenses)
and Section 10.13 (Confidentiality) will survive; provided, however, that if
this Agreement is terminated by a party because of a Material Breach by the
other party or because one or more of the conditions to the terminating party's
obligations under this Agreement is not satisfied as a result of the other
party's failure to comply with its obligations under this Agreement, the
terminating party's right to pursue all legal remedies will survive such
termination unimpaired.
(c) Other Remedies. Each party's right of termination under this
Section 10.1(c) is in addition to any other rights it may have under this
Agreement or otherwise, and the exercise of a right of termination will not be
an election of remedies.
10.2 Equitable Remedies. In addition to legal remedies, in recognition
of the fact that remedies at law would be inadequate, which the parties hereby
acknowledge, the parties hereto shall be entitled to equitable remedies for
breaches or defaults hereunder, including, without limitation, specific
performance and injunction, and no provision of this Agreement shall limit or
restrict the availability of specific performance or injunctive or other
equitable relief.
10.3 Assignment; Successors and Assigns; Third Party Beneficiaries.
Neither this Agreement nor any of the rights or obligations hereunder may be
assigned by any party without the prior written consent of the other parties.
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns, and no other Person shall have any right, benefit or obligation under
this Agreement as a third party beneficiary or otherwise.
10.4 Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally delivered;
when transmitted if transmitted by telecopy, electronic or digital transmission
method (upon confirmation of delivery); the business day after it is sent, if
sent for next day delivery to a domestic address by recognized overnight
delivery service (e.g., Federal Express); and upon receipt, if sent by certified
or registered mail, return receipt requested. In each case, notice shall be sent
to:
45 Execution Version
If to the Company, addressed to:
Synapse Technologies Inc.
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to BioMarin or Newco:
BioMarin Pharmaceutical Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Chairman and Chief Executive Officer
with copies to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Suite 2100
Scotia Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
10.5 Dispute Resolution.
(a) Each Party (as such term is defined herein) hereto hereby
agrees that it shall attempt to settle any claim, controversy or dispute among
the Parties hereto arising out of or relating to this Agreement or the
Transactions (a "Dispute") by negotiating in good faith. If
46 Execution Version
either Party has a Dispute, it shall deliver a written notice (a "Dispute
Notice") of such Dispute to the other Party. If the Parties are unable by
negotiating in good faith to resolve the Dispute within thirty (30) days of the
delivery of such a Dispute Notice, then such Dispute shall be finally settled by
arbitration in accordance with the terms hereof, except for any Dispute arising
from or in connection with any third party claim or proceeding contemplated
under Section 9.2(d). Such arbitration may be initiated by either Party serving
upon the other Party notice (i) stating that the notifying Party desires to have
such controversy reviewed by a board of three arbitrators, and (ii) naming one
person whom such Party chooses to act as one of the three arbitrators. Within
fifteen (15) days after receipt of such a notice, the other Party shall
designate one person to act as arbitrator and shall notify the Party requesting
arbitration of such designation and the name of the person so designated. If the
Party upon whom a request for arbitration is served shall fail to designate its
arbitrator within fifteen (15) days after receipt of such a notice, then the
arbitrator designated by the Party requesting arbitration shall act as the sole
arbitrator to resolve the controversy at hand. For purposes of this Section
10.5, the term "Party" shall be deemed to mean BioMarin and Newco, on the one
hand, and the Company, on the other.
(b) If both Parties have designated an arbitrator, the two
arbitrators designated as aforesaid shall promptly select a third arbitrator. If
the two arbitrators chosen by the Parties hereto are not able to agree on such
third arbitrator within thirty (30) days after the second arbitrator is
designated, unless such time is extended by the Parties, then either arbitrator,
on five (5) days' notice to the other, shall apply to the American Arbitration
Association to designate and appoint such third arbitrator.
(c) The Parties agree that all arbitrators chosen pursuant to
Sections 10.5(a) and 10.5(b) above shall not in any manner be related to or
affiliated with any Party.
(d) Except as otherwise set forth herein, the arbitral
proceedings shall be conducted in the English language and in accordance with
and subject to the Commercial Arbitration Rules of the American Arbitration
Association in effect from time to time. The arbitration proceedings shall be
conducted in the County of Marin, California.
(e) The decision in writing of the arbitrators so selected or
appointed shall be final and conclusive upon the Parties. The costs and expenses
of arbitration, including the compensation and expenses of the arbitrator(s),
shall be borne by the Parties as the arbitrator(s) may determine. Either Party
may apply to any court which has jurisdiction for an order confirming an
arbitration award hereunder.
(f) In proceeding with arbitration provided for herein, and in
making determinations thereunder, the arbitrator(s) shall not extend, modify or
suspend any of the terms of this Agreement, the Company Ancillary Agreement or
any Ancillary Agreement. A notice of or request or demand for arbitration will
not operate to stay, postpone or rescind the effectiveness of any termination of
this Agreement, the Company Ancillary Agreement or any Ancillary Agreement in
accordance herewith or therewith.
47 Execution Version
(g) The Parties agree that service of process in any proceeding
arising out of or relating to this Agreement or the performance hereof may be
made by personally serving an authorized recipient of such Party at the
addresses set forth in Section 10.4 above.
(h) Notwithstanding anything to the contrary in this Section
10.5, the provisions set forth in this Section 10.5 shall not apply if the
Closing occurs.
10.6 Choice of Law. This Agreement shall be construed, interpreted and
the rights of the parties determined in accordance with the laws of the State of
California (without reference to the choice of law provisions of California
law), except to the extent relating to matters of corporate governance of the
Company which shall be construed and interpreted in accordance with the CBCA
(without reference to the choice of law provisions of the CBCA, if any). Each of
the parties hereto hereby irrevocably and unconditionally consents to submit to
the exclusive jurisdiction of the courts of the State of California and of the
United States of America in each case located in the County of Marin for any
litigation arising out of or relating to this Agreement or the Transactions (and
agrees not to commence any litigation relating thereto except in such courts),
and further agrees that service of any process, summons, notice or document by
U.S. (or Canadian ) registered mail to its respective address set forth in
Section 10.4 shall be effective service of process for any litigation brought
against it in any such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any litigation
arising out of this Agreement or the Transactions in the courts of the State of
California or of the United States of America in each case located in the County
of Marin and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such litigation brought in any
such court has been brought in an inconvenient forum. Each of the parties hereto
hereby waives, to the fullest extent permitted by applicable law, any right it
may have to a trial by jury in respect of any action, suit or proceeding arising
out of or relating to this Agreement. Each party hereto certifies that it has
been induced to enter into this Agreement or instrument by, among other things,
the mutual waivers and certifications set forth above in this Section 10.6.
10.7 Entire Agreement, Amendments and Waivers. This Agreement amends
and restates in its entirety the First Amendment Agreement and shall be
effective as of the date hereof. This Agreement, which amends and restates in
its entirety the First Amendment Agreement, together with all schedules and
exhibits hereto, including the Company Ancillary Agreement and all agreements
entered into contemporaneously herewith or in furtherance of the Transactions
constitute the entire agreement among the parties pertaining to the subject
matter hereof and supersede all prior agreements, understandings, negotiations
and discussions, whether oral or written, of the parties, including, without
limitation, that certain Memorandum of Understanding entered into by and between
BioMarin and the Company on September 6, 2001. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto. No amendment, supplement, modification or waiver of this Agreement shall
be binding unless executed in writing by the party to be bound thereby. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
48 Execution Version
10.8 Multiple Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.9 Expenses. Each party to this Agreement shall bear its own costs
and expenses incurred in connection with the negotiation, execution and
performance of this Agreement and the consummation of the transactions
contemplated hereby. BioMarin acknowledges that upon the Closing, it shall be
responsible for payment of those bonus and success fees set forth in Section
4.17 of the Company Ancillary Agreement.
10.10 Invalidity. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
10.11 Titles; Gender. The titles, captions or headings of the Articles
and Sections herein, and the use of the word "its" in lieu of "his" or "hers",
are for convenience of reference only and are not intended to be a part of or to
affect or restrict the meanings or interpretation of this Agreement.
10.12 Public Statements and Press Releases. The parties hereto covenant
and agree that, except as provided for hereinbelow and as specifically provided
in Section 6.7 with respect to the Management Information Circular, the Other
Filings and in response to any comments from the Court and any request by the
Court for amendments or supplements thereto or for any additional information
with respect thereto, each will not from and after the date hereof until the
Effective Date make, issue or release any public announcement, press release,
statement or acknowledgment of the existence of, or reveal publicly the terms,
conditions and status of, the Transactions, without the prior written consent of
the other party as to the content and time of release of and the media in which
such statements or announcement is to be made, except in the case of
announcements, statements, acknowledgments or revelations (a) which either party
is required by law to make, issue or release or (b) which are in or in
connection with any filing made by BioMarin with the SEC, Nasdaq or the Swiss
Stock Exchange.
10.13 Confidential Information. Except as expressly set forth in
Section 10.12 with respect to information regarding the terms, conditions and
status of the Transactions, each Party (as defined below) shall keep
confidential all proprietary information (the "Confidential Information")
obtained from the other Party or its Representatives in connection with the
other Party, this Agreement and the Transactions and that all such Confidential
Information obtained by it from the other Party or any of its Representatives
shall be used solely for the purpose of evaluating the Transactions and for no
other purpose. The term "Confidential Information" shall not include any
information which: (a) is or becomes generally available to the public other
than as a result of a disclosure by the receiving Party or its Representatives;
(b) becomes known to the receiving Party or its Representatives on a
non-confidential basis from a source (other than the disclosing Party) which is
not known to the receiving Party to be bound to the disclosing Party by a legal,
contractual or fiduciary obligation; (c) was known to the receiving Party or its
Representatives on or prior to the date hereof; or (d) was independently
discovered or developed
49 Execution Version
by the receiving Party without reference to any of the Confidential Information.
If this Agreement is terminated without consummation of the Transactions, each
Party shall return to the other Party all Confidential Information in its
possession regarding the other Party and all copies and extracts thereof or with
the consent of the other Party shall destroy all such Confidential Information
and copies and extracts and shall deliver to the other Party evidence of
destruction of such Confidential Information and copies and extracts as such
other Party may reasonably request. For purposes of this Section 10.13, the term
"Party" shall be deemed to mean BioMarin and Newco, on the one hand, and the
Company, on the other. Notwithstanding the foregoing, from and after the
Effective Time, BioMarin shall have no obligation pursuant to this Section 10.13
with respect to the Confidential Information of the Company.
10.14 Cumulative Remedies. All rights and remedies hereunder of either
party hereto are cumulative of each other and of every other right, recovery or
remedy such party may otherwise have at law or in equity, and the exercise of
one or more rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
50 Execution Version
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on their respective behalf, by their respective officers thereunto
duly authorized, all as of the day and year first above written.
BIOMARIN PHARMACEUTICAL INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President, Research and
Development
BIOMARIN DELIVERY CANADA INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
SYNAPSE TECHNOLOGIES INC.
By: /s/ Z. ▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: Z. ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
51 Execution Version
EXHIBIT INDEX
Exhibit A Arrangement Resolution
Exhibit B Exchangeable Shares Terms
Exhibit C Plan of Arrangement
Exhibit D Form of Letter of Transmittal
Exhibit E Escrow Agreement
Exhibit F Support Agreement
Execution Version
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...............................................................2
1.1 Defined Terms................................................................2
1.2 Other Defined Terms..........................................................9
ARTICLE II THE ARRANGEMENT..........................................................11
2.1 Implementation Steps by the Company.........................................11
2.2 Interim Order...............................................................11
2.3 Effect of the Arrangement...................................................11
2.4 Effect on Capital Stock.....................................................12
2.5 Dissenting Shares...........................................................12
2.6 Securities Compliance; Registration.........................................13
2.7 Surrender of Certificates...................................................15
2.8 No Further Ownership Rights in Company Common Shares or Company
Preferred Shares ...........................................................16
2.9 Lost, Stolen or Destroyed Certificates......................................17
2.10 Tax Consequences............................................................17
2.11 Company Stock Options and Company Warrants..................................17
2.12 Transfer Taxes and Fees.....................................................18
ARTICLE III CLOSING..................................................................18
3.1 Closing.....................................................................18
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................19
4.1 Organization of the Company; Organizational Documents.......................19
4.2 Capitalization..............................................................19
4.3 Subsidiaries................................................................20
4.4 Authorization...............................................................20
4.5 Absence of Certain Changes or Events........................................20
4.6 Encumbrances................................................................22
4.7 Condition of the Assets.....................................................22
4.8 Contracts and Commitments...................................................22
4.9 Permits; Consents and Approvals.............................................23
4.10 No Conflict or Violation....................................................24
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TABLE OF CONTENTS
(continued)
Page
4.11 Financial Statements........................................................24
4.12 Books and Records...........................................................24
4.13 Litigation..................................................................24
4.14 Labor Matters...............................................................24
4.15 Liabilities.................................................................25
4.16 Compliance with Law.........................................................25
4.17 No Brokers..................................................................25
4.18 No Other Agreement to Sell the Shares or Assets.............................25
4.19 Intellectual Property.......................................................25
4.20 Employee Benefit Plans......................................................27
4.21 Transactions with Affiliates................................................27
4.22 Tax Matters.................................................................28
4.23 Insurance...................................................................28
4.24 Employees...................................................................28
4.25 Payments....................................................................29
4.26 Business Relationships......................................................29
4.27 Compliance With Environmental and Health Laws...............................29
4.28 Disclosure..................................................................29
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BIOMARIN AND NEWCO.....................29
5.1 Organization................................................................29
5.2 No Conflict or Violation....................................................29
5.3 Consents and Approvals......................................................30
5.4 SEC Filings.................................................................30
5.5 Absence of Certain Changes or Events........................................31
5.6 Suspension and Trading......................................................31
5.7 No Brokers..................................................................31
5.8 Securities..................................................................31
5.9 Securities Exemption........................................................31
5.10 Transferability.............................................................31
5.11 Disclosure..................................................................31
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VI COVENANTS................................................................32
6.1 Further Assurances..........................................................32
6.2 No Solicitation.............................................................32
6.3 Notification of Certain Matters.............................................33
6.4 Access......................................................................33
6.5 Conduct of Business.........................................................34
6.6 New Company Products........................................................36
6.7 Management Information Circular; Board Recommendations; Other Filings.......36
6.8 Meeting of the Company Shareholders.........................................38
ARTICLE VII CONDITIONS TO THE OBLIGATIONS of the company.............................38
7.1 Representations, Warranties and Covenants...................................38
7.2 Permits, Consents and Regulatory Compliance.................................39
7.3 No Actions or Court Orders..................................................39
7.4 Opinions of Counsel.........................................................39
7.5 Certificates................................................................39
7.6 Corporate Documents.........................................................39
7.7 Shareholder Approval........................................................39
7.8 Securities Exemption Orders.................................................39
7.9 Court Orders................................................................39
7.10 Support Agreement...........................................................40
7.11 No Material Change..........................................................40
ARTICLE VIII CONDITIONS TO OBLIGATIONS OF BIOMARIN AND NEWCO..........................40
8.1 Representations, Warranties and Covenants...................................40
8.2 Permits, Consents and Regulatory Compliance.................................40
8.3 No Actions or Court Orders..................................................40
8.4 Opinion of Counsel..........................................................40
8.5 Certificates................................................................40
8.6 Release of All Claims.......................................................40
8.7 Ancillary Agreements........................................................41
8.8 Shareholders Approval.......................................................41
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TABLE OF CONTENTS
(continued)
Page
8.9 Corporate Documents.........................................................41
8.10 Court Orders................................................................41
8.11 Securities Exemption Orders.................................................41
8.12 No Material Change..........................................................41
8.13 Return of Deposit...........................................................41
8.14 Termination of Certain Agreements...........................................41
8.15 Dissenters..................................................................42
ARTICLE IX SURVIVAL; INDEMNIFICATION................................................42
9.1 Survival of Representations.................................................42
9.2 Indemnification.............................................................42
ARTICLE X MISCELLANEOUS............................................................44
10.1 Termination.................................................................44
10.2 Equitable Remedies..........................................................45
10.3 Assignment; Successors and Assigns; Third Party Beneficiaries...............45
10.4 Notices.....................................................................45
10.5 Dispute Resolution..........................................................46
10.6 Choice of Law...............................................................48
10.7 Entire Agreement, Amendments and Waivers....................................48
10.8 Multiple Counterparts.......................................................49
10.9 Expenses....................................................................49
10.10 Invalidity..................................................................49
10.11 Titles; Gender..............................................................49
10.12 Public Statements and Press Releases........................................49
10.13 Confidential Information....................................................49
10.14 Cumulative Remedies.........................................................50
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