OF ASPREVA PHARMACEUTICALS CORPORATION
TO BE HELD ON DECEMBER 17, 2007
MANAGEMENT INFORMATION CIRCULAR
• | US$26.00 in cash for each common share of Aspreva that you hold; and | |
• | an amount in cash equal to the excess, if any, with respect to each common share underlying each option of Aspreva that you hold, of US$26.00 over the exercise price per common share of such option. |
J. William Freytag | Noel Hall | |
Chairman of the Board of Directors | President and Member of the Board of Directors | |
and Chief Executive Officer |
1. | to consider and, if deemed advisable, to pass the following resolutions (together, the “Arrangement Resolutions”): |
(a) | a special resolution of Shareholders, passed by at least two-thirds of the votes cast by Shareholders present in person or by proxy at the Meeting, voting together as a class (with each Shareholder entitled to one vote for each Common Share held); and | ||
(b) | a separate resolution of Shareholders and Optionholders, passed by at least two-thirds of the votes cast by Shareholders and Optionholders present in person or by proxy at the Meeting, voting together as a class (with each Shareholder entitled to one vote for each Common Share held and each Optionholder entitled to one vote for each Common Share such holder would have received on a valid exercise of such holder’s Options, without reference to any vesting provisions or exercise price); |
to approve an arrangement (the “Arrangement”) under the provisions of Division 5 of Part 9 of theBusiness Corporations Act(British Columbia) involving Aspreva, the Securityholders and Galenica Canada Ltd., a wholly-owned subsidiary of Galenica AG, all as more particularly described in the accompanying management information circular of Aspreva (the “Circular”); | ||
2. | to consider and, if deemed advisable, to pass by a simple majority of votes cast by Shareholders present in person or by proxy at the Meeting, a resolution (the “Rights Plan Waiver Resolution”) of Shareholders approving an amendment to the Aspreva shareholder rights plan agreement dated as of February 4, 2005 between Aspreva and Computershare Investor Services Inc., as more particularly described in the Circular; and | |
3. | to transact such further business as may properly come before the Meeting or any adjournment(s) or postponement(s) thereof. |
Aspreva Pharmaceuticals Corporation
Chairman of the Board of Directors and
Chief Executive Officer
1 | ||||
1 | ||||
1 | ||||
2 | ||||
4 | ||||
10 | ||||
20 | ||||
20 | ||||
24 | ||||
24 | ||||
26 | ||||
29 | ||||
29 | ||||
30 | ||||
30 | ||||
33 | ||||
37 | ||||
38 | ||||
38 | ||||
39 | ||||
41 | ||||
41 | ||||
42 | ||||
44 | ||||
45 | ||||
47 | ||||
48 | ||||
49 | ||||
50 | ||||
50 | ||||
51 | ||||
51 | ||||
53 | ||||
53 | ||||
53 | ||||
53 | ||||
55 | ||||
56 | ||||
56 | ||||
58 | ||||
58 | ||||
58 | ||||
59 | ||||
59 | ||||
59 | ||||
59 | ||||
59 | ||||
63 | ||||
65 | ||||
65 | ||||
66 | ||||
66 | ||||
67 | ||||
73 | ||||
74 | ||||
75 | ||||
A-1 | ||||
B-1 | ||||
C-1 | ||||
D-1 | ||||
E-1 | ||||
F-1 | ||||
G-1 | ||||
H-1 | ||||
I-1 |
- 1 -
- 2 -
- 3 -
Q: | Why did I receive this Circular? | |
A: | Aspreva has sent this Notice of Special Meeting and Circular, together with the applicable form of proxy and applicable letter of transmittal, because Aspreva’s Board of Directors is soliciting your proxy to vote at a special meeting of Shareholders and Optionholders held to consider and vote on the Arrangement, which will result, if all conditions are satisfied or waived, in the acquisition by Galenica, through Acquisitionco, of all of the outstanding Common Shares of Aspreva. This Circular contains information about the matters to be voted on at the Meeting and important information about Aspreva. As many of the Securityholders are expected to be unable to attend the Meeting in person, proxies are solicited by mail to give each Securityholder an opportunity to vote on all matters that will properly come before the Meeting. | |
Aspreva intends to mail this Circular and the applicable form of proxy and applicable letter of transmittal on or about November 21, 2007 to all of Aspreva’s Shareholders and Optionholders entitled to vote at the Meeting. | ||
Q: | What is the date, time and place of the Meeting? | |
A: | The Meeting will be in the Arbutus Room at the Four Seasons Hotel, 791 West Georgia Street, Vancouver, British Columbia, on December 17, 2007, at 10:00 a.m. (Vancouver time). | |
Q: | What am I voting on at the Meeting? | |
A: | You are being asked to consider and vote on the Arrangement Resolutions approving the Arrangement. In addition, Shareholders are also being asked to consider and vote on the Rights Plan Waiver Resolution, which amends Aspreva’s Rights Plan as required to complete the Arrangement. | |
Q: | What will I receive under the Arrangement? | |
A: | If the Arrangement is completed, you will receive: |
• | US$26.00 in cash for each Common Share that you hold; and | ||
• | an amount in cash equal to the excess, if any, with respect to each Common Share underlying each Option that you hold, of US$26.00 over the exercise price per Common Share of such Option. |
Payments will be made net of applicable tax withholdings, including, if you are an Optionholder who is an Eligible Employee, payroll taxes to the extent that the Option Benefit is included in your taxable income for the purposes of the Tax Act. | ||
Q: | Am I entitled to receive notice of the Meeting and to attend the Meeting? | |
A: | Yes, if you held Common Shares or Options, or any combination thereof, as of 5:00 p.m. (Vancouver time) on November 9, 2007, which is the record date for determining Securityholders entitled to receive notice of the Meeting. All such Securityholders are entitled to receive notice of, attend and be heard at the Meeting. | |
Q: | Am I entitled to vote at the Meeting? | |
A: | Yes, if you held Common Shares or Options, or any combination thereof, as of 5:00 p.m. (Vancouver time) on November 9, 2007, which is the record date for determining Securityholders entitled to vote at the Meeting. | |
Q: | How does Aspreva’s Board of Directors recommend that I vote? | |
A: | The Board of Directors has determined, after taking into consideration the recommendation of its Strategic Planning Committee, the respective Opinions of its financial advisors and all other matters deemed relevant, that the Arrangement and Rights Plan Waiver are in the best interest of Aspreva and are fair to Shareholders. The Board of Directors recommends that Shareholders vote FOR the Arrangement Resolutions and FOR the Rights Plan Waiver Resolution. See “The Arrangement - Recommendation of the Board of Directors” and “The Arrangement – Rights Plan Waiver Resolution”. |
- 4 -
Q: | How do the directors and executive officers of Aspreva intend to vote? | |
A: | The directors and executive officers of Aspreva have indicated that they intend to vote their Securities, as applicable, in favour of the Arrangement Resolutions and the Rights Plan Waiver Resolution. The directors and certain of the executive officers of Aspreva have entered into Support Agreements with Acquisitionco pursuant to which, among other things, they agreed to vote Securities owned by them or over which they exercise control in favour of the Arrangement Resolutions. | |
Q: | What vote is required to approve the resolutions at the Meeting? | |
A: | The Arrangement Resolutions must be passed by: |
• | at least two-thirds of the votes cast by Shareholders present in person or by proxy at the Meeting, voting together as a class (with each Shareholder entitled to one vote for each Common Share held); and | ||
• | at least two-thirds of the votes cast by Shareholders and Optionholders, present in person or by proxy at the Meeting, voting together as a class (with each Shareholder entitled to one vote for each Common Share held and each Optionholder entitled to one vote for each Common Share such holder would have received on a valid exercise of such holder’s Options, without reference to any vesting provisions or exercise price). |
The Rights Plan Waiver Resolution must also be approved by a simple majority of the votes cast by Shareholders present in person or by proxy at the Meeting. | ||
Q: | How can I vote my Common Shares or Options? |
A: | If you are a Registered Shareholder or Optionholder, you may vote by proxy or in person at the Meeting. Whether or not you plan to attend the Meeting, you are urged to vote by proxy to ensure your vote is counted. You may still attend the Meeting and vote if you have already voted by proxy. |
• | To vote in person at the Meeting, please come to the Meeting and you will receive an attendance card when you arrive. | ||
• | To vote using the form of proxy, please complete, sign, date and return the appropriate form of proxy (the yellow form of proxy in the case of Registered Shareholders and the green form of proxy in the case of Optionholders) in accordance with the instructions on the proxy. |
A: | If on November 9, 2007, your Common Shares were held in an account with an Intermediary, such as a brokerage firm, bank, dealer or other similar organization, then you are a Non-registered Shareholder and your Common Shares are held in “street name”. The Intermediary holding your account, or a clearing agency (such as CDS Clearing and Depository Services Inc. in Canada or Cede & Co. in the United States) of which the Intermediary is a participant, is considered the Registered Shareholder for purposes of voting at the Meeting. Aspreva has two kinds of Non-registered Shareholders — those who have given permission to their Intermediary to disclose their ownership information to us, otherwise referred to as “non-objecting beneficial owners”, and those who have objected to their Intermediary’s disclosure of this information, otherwise referred |
- 5 -
to as “objecting beneficial owners”. As allowed under Canadian provincial securities laws, Aspreva has obtained a list of its non-objecting beneficial owners from Intermediaries and has used that list to distribute proxy-related materials directly to non-objecting beneficial owners. |
• | To vote using the voting information form, simply complete and return the voting information form in accordance with its instructions. | ||
• | To vote in person at the Meeting, you must instruct Computershare if you are a non-objecting beneficial owner, or your Intermediary if you are an objecting beneficial owner, to appoint you as proxyholder. |
Q: | How will proxies be exercised? | |
A: | The proxyholder will vote according to instructions in the proxy on any ballot which may be called for and for which a choice has been specified. Unless otherwise indicated by you on the proxy, or if your instructions are not clear, your Securities will be voted FOR the Arrangement Resolutions and (if you are a Shareholder) FOR the Rights Plan Waiver Resolution. | |
The proxy also confers upon the proxyholder discretionary authority to vote all Securities represented by the proxy with respect to amendments or variations to matters identified in the Notice of Special Meeting, and any other matter that properly comes before the Meeting. As of November 15, 2007, the Board of Directors knows of no such amendment, variation or other matter that is to be presented for action at the Meeting. However, if any other matters which are not now known to the Board of Directors should properly come before the Meeting, the proxies will be voted, or withheld, by the proxyholder in his or her discretion. | ||
Q: | What is the quorum for the Meeting? | |
A: | To transact business at the Meeting, a quorum of Shareholders must be present at the commencement of the Meeting, either in person or by proxy. Under Aspreva’s articles, the quorum for the transaction of business at the Meeting is two persons who are, or who represent by proxy, Shareholders who, in the aggregate, hold at least 20% of the Common Shares. If within one-half hour from the time set for the Meeting a quorum is not present, the Meeting will stand adjourned to the same day in the next week at the same time and place. If at such adjourned meeting a quorum is not present within one-half hour from the time set, the person or persons present and being, or representing by proxy, one or more Shareholders entitled to attend and vote at the Meeting will constitute a quorum. Aspreva has received a waiver of Rule 4350(f) from NASDAQ which would otherwise require a quorum of holders of not less than 331/3% of the Common Shares. |
- 6 -
Q: | What does it mean if I receive more than one set of proxy materials? | |
A: | This means that you own Common Shares that are registered under different names. For example, you may own some Common Shares directly as a Registered Shareholder and other Common Shares as a beneficial shareholder through an Intermediary, or you may own Common Shares through more than one such organization. In these situations, you will receive multiple sets of proxy materials. Additionally, you may have received more than one set of proxy materials because you hold both Common Shares and Options. | |
It is necessary for you to complete and return all proxies and/or voting instruction forms in order to vote all of the Common Shares and Options you own. | ||
Q: | Can I revoke my proxy? | |
A: | You may revoke your proxyby submitting a proxy bearing a later date, duly completed, signed and dated in the manner set forth above and delivered to the registered office of Aspreva at c/o Farris, Vaughan, Wills & Murphy LLP, Barristers and Solicitors, 25th Floor, 700 West Georgia Street, Vancouver, British Columbia, V7Y 1B3 (Attention of R. Hector MacKay-Dunn, Q.C.) no later than 5:00 p.m. (Vancouver time) on December 14, 2007 or, in the case of any adjournment or postponement of the Meeting, no later than 5:00 p.m. (Vancouver time) on the day that is one business day before the date of the reconvened Meeting. |
Q: | When will the Arrangement be implemented? | |
A: | The Arrangement will be implemented if and when all of the conditions to closing have been satisfied or waived. The closing is currently expected to occur in early January 2008. Because the Arrangement is subject to a number of conditions, some of which are beyond the control of Aspreva, Acquisitionco and Galenica, the exact timing of implementation of the Arrangement cannot be determined. If the Arrangement is not completed by the Termination Date of February 29, 2008, the Combination Agreement may be terminated in certain circumstances without completion of the Arrangement, unless the parties to the Combination Agreement agree to extend the Termination Date. | |
Q: | In addition to the approval of Securityholders, are there any other approvals required for the Arrangement? | |
A: | Yes, the Arrangement requires the approval of the Court and is subject to customary closing conditions. The Arrangement is also subject to review and approval by the Minister responsible for theInvestment Canada Act. See “Principal Legal Matters- Regulatory Matters – Investment Canada Act”. | |
Q: | When can I expect to receive Consideration for my Common Shares or Options? | |
A: | As soon as practicable after the completion of the Arrangement and the receipt by the Depositary from a Registered Shareholder or Optionholder of a properly completed applicable letter of transmittal and all other required documents, the Depositary will pay the applicable portion of the Consideration payable to such Registered Shareholder or Optionholder net of applicable tax withholdings, including in the case of an Optionholder who is an Eligible Employee, payroll taxes to the extent that the Option Benefit is included in the Optionholder’s taxable income for the purposes of the Tax Act. If you are a Non-registered Shareholder, your broker or other nominee generally surrenders your Common Shares in exchange for your portion of the |
- 7 -
Consideration following completion of the Arrangement. See “The Arrangement – Arrangement Mechanics – Delivery of Consideration”. | ||
Q: | Will the Common Shares continue to be listed on the TSX and NASDAQ after the completion of the Arrangement? | |
A: | No. If the Arrangement is completed, all of the Common Shares will be owned by Acquisitionco and will be delisted from the TSX and NASDAQ soon after the Effective Date of the Arrangement. | |
Q: | What are the tax consequences of the Arrangement to me? | |
A: | Your receipt of your portion of the Consideration under the Arrangement in exchange for your Common Shares or Options will be a taxable transaction. For further information on certain tax consequences of the Arrangement for Securityholders, see “Certain Tax Considerations for Securityholders”. Your tax consequences will depend on your particular situation. You should consult your own tax advisor for a full understanding of the applicable federal, provincial, state, local, foreign and other tax consequences to you resulting from the Arrangement. | |
Q: | Should I send my certificates representing my Securities now? | |
A: | You are not required to send your certificates representing your Securities to cast your vote at the Meeting. However, you are encouraged to complete, sign, date and return the applicable letters of transmittal (the yellow form in the case of Registered Shareholders and the green form in the case of Optionholders) so that, if the proposed Arrangement is approved, payment for your Securities can be sent to you as soon as possible following the completion of the Arrangement. |
Q: | What if ownership of Securities has been transferred after November 9, 2007? | |
A: | Only persons holding Common Shares or Options, or any combination thereof, as of 5:00 p.m. (Vancouver time) on November 9, 2007, are entitled to receive notice of and vote at the Meeting. However, all Securityholders who own Securities as at the Effective Time will participate in the Arrangement. | |
Q: | Am I entitled to dissent? | |
A: | Pursuant to the Plan of Arrangement and the Interim Order, only Registered Shareholders may exercise Dissent Rights. Registered Shareholders who properly exercise their Dissent Rights will be entitled to be paid the fair value of their Common Shares. This amount may be the same as, more than or less than the US$26.00 in cash per Common Share offered under the Arrangement. If you wish to dissent, written notice must be received by Aspreva at c/o Farris, Vaughan, Wills & Murphy LLP, Barristers and Solicitors, 25th Floor West Georgia Street, Vancouver British Columbia, V7Y 1B3 (Attention of R. Hector MacKay-Dunn, Q.C.) no later than 10:00 a.m. (Vancouver time) on December 13, 2007 or, in the case of any adjournment or postponement of the Meeting, no later than 10:00 a.m. (Vancouver time) on the day that is two business days before the date of the reconvened Meeting, in the manner described under the heading “Dissenting Shareholders’ Rights”. It is important that you comply strictly with this requirement, otherwise your Dissent Rights may not be recognized. You must also comply strictly with the other requirements of the Dissent Procedures. Non-registered |
- 8 -
Shareholders must arrange for their Intermediary to dissent on their behalf. Dissent Rights are not available to Optionholders. | ||
Q: | Who is soliciting my proxy? | |
A: | Your proxy is being solicited by management of Aspreva.This Circular, together with the applicable form of proxy and letter of transmittal, is furnished in connection with that solicitation. It is expected that the solicitation will be made primarily by mail, but proxies may also be solicited personally or by telephone, email or other communication by directors, officers and employees of Aspreva without special compensation. | |
Q: | Has Aspreva retained an agency to solicit proxies? | |
A: | Aspreva has retained The Altman Group Inc. as information agent and proxy solicitation agent with respect to the Arrangement, for which it will be paid a base fee of US$10,000, plus out of pocket expenses (estimated to be between US$2,500 - US$3,500). |
Q: | Who pays the cost of this proxy solicitation? | |
A: | Aspreva will pay the cost of soliciting proxies, including the fees payable to Altman and fees for the printing, handling and mailing of the proxy materials. Copies of these materials will be given to brokerage firms, banks, dealers or other similar organizations that hold Common Shares for Aspreva’s Non-registered Shareholders. Aspreva will reimburse these brokerage firms, banks, dealers or other similar organizations for their reasonable out of pocket expenses in forwarding proxy materials to Aspreva’s Non-registered Shareholders. | |
Q: | How can I find out the results of the voting at the Meeting? | |
A: | Preliminary voting results will be announced at the Meeting. Final voting results will be announced by Aspreva in a press release and filed with the Canadian provincial securities regulatory authorities on SEDAR atwww.sedar.com. | |
Q: | Who can I contact if I have questions? | |
A: | Securityholders who have additional questions about the Arrangement or voting, should contact Altman toll-free at 1-866-822-1245 if you are calling from the United States or Canada, or collect at 1-201-806-7300 if you are in Europe or Asia. Additionally, you may contact Asprevainfo@altmangroup.com. Securityholders who have questions about deciding how to vote should contact their professional advisors. |
- 9 -
1. | all of the Common Shares will be transferred by the Shareholders to Acquisitionco for US$26.00 in cash per Common Share; and | |
2. | all of the Options will be transferred by Optionholders to Aspreva in exchange for a cash amount equal to the excess, if any, with respect to each Common Share underlying such Options, of US$26.00 over the exercise price per Common Share of such Options. |
1. | the price to be paid for each Common Share under the Arrangement represents a premium of approximately 16% over the closing price of the Common Shares on October 16, 2007, the last trading day for the Common Shares on the TSX and NASDAQ prior to the announcement of the Combination Agreement, and |
- 10 -
a premium of approximately 24% from the 30-day average closing price of the Common Shares on the TSX and NASDAQ on October 16, 2007; | ||
2. | the financial aspects of the Arrangement, including the facts that the consideration to be received by the Shareholders is to be paid in cash, the obligations of Galenica and Acquisitionco under the Combination Agreement are not subject to a financing condition and the financing commitment letter that Galenica obtained from RBS contemplated the execution of the Facility Agreement that would provide Galenica with sufficient resources to finance the transactions contemplated under the Combination Agreement; | |
3. | the Strategic Planning Committee, with the assistance of management and its financial advisors, did not identify another buyer willing to pay an equivalent or more attractive price; | |
4. | the Strategic Planning Committee, comprised entirely of independent directors, unanimously recommended that the Board of Directors approve the Combination Agreement and the Arrangement and the transactions contemplated thereby; | |
5. | no other alternatives were reasonably likely to present superior opportunities for Aspreva, or reasonably likely to create greater value for Shareholders in comparison to the Arrangement; | |
6. | the Arrangement provides Shareholders with the opportunity to realize value for the entire business of Aspreva; | |
7. | risks associated with the erosion of the Company’s royalty stream from CellCept®; | |
8. | risks associated with the strategic alternatives available to the Company as a consequence of the Company being unable, to date, to enter into collaborations, other than the Company’s collaboration with Roche in respect of CellCept®, to develop new indications for drugs and drug candidates; | |
9. | Securityholders holding or exercising control over approximately 30% of the outstanding Common Shares and approximately 38% of the outstanding Options (as of October 17, 2007, the date on which the Company entered into the Combination Agreement) have entered into the Support Agreements with Acquisitionco pursuant to which, among other things, they agreed to vote such Securities in favour of the Arrangement Resolutions, and that the Support Agreements will terminate if the Combination Agreement is terminated, including if the Combination Agreement is terminated by the Company to enter into a definitive written agreement with respect to a Superior Proposal; | |
10. | the two separate Opinions received by the Strategic Planning Committee and the Board of Directors from Lazard and Lehman Brothers to the effect that, as of the date of their respective Opinions and based on and subject to the assumptions, limitations and qualifications set forth therein, the Purchase Price to be paid to the Shareholders in the Arrangement is fair to such Shareholders from a financial point of view (see “The Arrangement – Opinions of Aspreva’s Financial Advisors”); and | |
11. | the terms and conditions of the Combination Agreement, which were extensively negotiated at arm’s-length, including: |
(a) | the reasonableness of the representations, warranties and covenants of the parties, the reasonableness of the restrictions on the conduct of the Company’s business until completion of the Arrangement and the conditions to the respective obligations of the parties; | ||
(b) | the level of “deal certainty” offered by the Combination Agreement, including the assessment by management of the Company as to the commitment and ability of Galenica to close the transactions contemplated by the Arrangement and the likelihood of completing the Arrangement, considering the totality of the terms of the Combination Agreement, including the absence of significant closing conditions other than approval by Securityholders of the Arrangement Resolutions, approval of the Court, Appropriate Regulatory Approvals and other customary closing conditions; |
- 11 -
(c) | the flexibility available to the Company, upon compliance with the conditions of the Combination Agreement, to furnish information and to conduct negotiations with other third parties making an unsolicited proposal to purchase all of the Common Shares or substantially all of the assets of the Company, to change its recommendation to Shareholders in certain circumstances and to terminate the Combination Agreement to enter into a Superior Proposal (subject to payment of the Termination Fee); | ||
(d) | the fact that the Arrangement Resolutions must, subject to the approval of the Court, be approved by not less than two-thirds of the votes cast by Shareholders voting as a separate class, and by two-thirds of the votes cast by Shareholders and Optionholders voting together as a separate class, and the fact that, if a higher offer is made to Securityholders prior to the Meeting, Securityholders are free to support such a higher offer and vote against the Arrangement Resolutions; | ||
(e) | the fact that the Arrangement must be approved by the Court, which will consider, among other things, the fairness of the Arrangement to Securityholders; and | ||
(f) | the right that will be provided to Shareholders to dissent in respect of the Arrangement and to apply to the Court to have the Court determine the fair value of their Common Shares. |
1. | the risks to Aspreva if the Arrangement is not completed, including the costs incurred in pursuing the Arrangement, the diverting of significant management attention away from the conduct of Aspreva’s business, the uncertainty that might result in potential strategic partners delaying or deferring decisions concerning Aspreva, and the uncertainty that current and prospective Aspreva employees may experience concerning their future roles with Aspreva following successful completion of the Arrangement, which may adversely affect Aspreva’s ability to attract or retain key management and other personnel; | |
2. | the conditions contained in the Combination Agreement regarding Acquisitionco’s obligation to complete the Arrangement; | |
3. | the conditions contained in Galenica’s financing with RBS which limit Galenica’s ability to draw on that financing and thereby fund the Arrangement (Galenica’s obligations under the Combination Agreement are not conditioned on Galenica obtaining such financing); | |
4. | the fact that the Arrangement will be a taxable transaction for most Securityholders; | |
5. | the limitations contained in the Combination Agreement on the ability of Aspreva to solicit further expressions of interest from third parties, as well as the fact that if the Combination Agreement is terminated under certain circumstances, Aspreva must pay a Termination Fee in the amount of US$23 million to Acquisitionco; and | |
6. | the fact that following the Arrangement, Aspreva will no longer exist as a public company and Securityholders will forgo any future increase in value that might result from future growth and the potential achievement of Aspreva’s long-term plans. |
- 12 -
1. | at least two-thirds of the votes cast by Shareholders present in person or by proxy at the Meeting, voting together as a class (with each Shareholder entitled to one vote for each Common Share held); and | |
2. | at least two-thirds of the votes cast by Shareholders and Optionholders, present in person or by proxy at the Meeting, voting together as a class (with each Shareholder entitled to one vote for each Common Share held and each Optionholder entitled to one vote for each Common Share such holder would have received on a valid exercise of such holder’s Options, without reference to any vesting provisions or exercise price). |
• | all Options granted and outstanding immediately prior to the Effective Time will be transferred by the Optionholders to Aspreva in exchange for a cash payment equal to the excess, if any, of (i) the product of the number of Common Shares underlying the particular Option and US$26.00 over (ii) the aggregate exercise price payable under such Option by such holder to acquire the Common Shares underlying such Option (or if the exercise price of such Option under the terms of such Option is expressed in Canadian currency, the U.S. dollar equivalent of such exercise price determined by using the U.S. dollar/Canadian dollar daily noon rate as published by the Bank of Canada on the Business Day prior to the Effective Date), payable to each Optionholder in respect of the Option transferred by such Optionholder; | ||
• | all Common Shares outstanding immediately prior to the Effective Time, other than Common Shares held by a Dissenting Shareholder, will be and be deemed to be transferred by the Shareholders to Acquisitionco for US$26.00 in cash per Common Share; and | ||
• | all Common Shares outstanding immediately prior to the Effective Time held by a Dissenting Shareholder will be and be deemed to be transferred by the Dissenting Shareholder to Acquisitionco for the right to be paid fair value for such Common Shares, |
- 13 -
- 14 -
• | the Arrangement Resolutions having been approved by the Securityholders at the Meeting in accordance with the Interim Order and applicable Laws; | ||
• | the Interim Order and the Final Order each having been obtained and not having been set aside or modified in a manner that would have a Material Adverse Effect on the Company or a material adverse effect on Galenica; | ||
• | the absence of any applicable Laws that make the Arrangement illegal or that otherwise restrain, enjoin or otherwise prohibit consummation of the Arrangement except where the violation of such Laws would not have a Material Adverse Effect on the Company or a material adverse effect on Galenica; and | ||
• | all Appropriate Regulatory Approvals having been obtained and being in full force and effect, or in the case of waiting or suspensory periods, expired or been terminated, except where the failure to obtain such Appropriate Regulatory Approvals is attributable to Galenica’s or Acquisitionco’s failure to comply or consent to any condition that does not constitute a Materially Burdensome Condition. |
• | the Company having complied in all material respects with its covenants in the Combination Agreement required to be complied with on or before the Effective Date; | ||
• | the representations and warranties of the Company in the Combination Agreement being true and correct as of the Effective Date as if made on and as of such date (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties being true and correct as of that date) except (i) as affected by transactions, changes, conditions, events or circumstances contemplated or permitted by the Combination Agreement or (ii) for breaches of representations and warranties which in the aggregate do not have a Material Adverse Effect on the Company, provided however that for the purposes of determining the truth and correctness of any such representations and warranties, all qualifications using the term Material Adverse Effect and “in all material respects” (or similar phrases) will be disregarded; | ||
• | since the date of the Combination Agreement, there has not occurred any event that has resulted in a Material Adverse Effect on the Company; | ||
• | Acquisitionco receiving a certificate of the Company signed by a senior officer of the Company and dated the Effective Date certifying that the applicable conditions have been satisfied which certificate will cease to have any force and effect after the Effective Time; and | ||
• | the Shareholders having approved the Rights Plan Waiver Resolution and the Rights Plan Amending Agreement having been executed and delivered. |
- 15 -
• | each of Galenica and Acquisitionco having complied in all material respects with its covenants in the Combination Agreement required to be complied with by Galenica or Acquisitionco on or before the Effective Date; | ||
• | the representations and warranties of each of Galenica and Acquisitionco in the Combination Agreement being true and correct as of the Effective Date as if made on and as of such date (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties being true and correct as of that date) except (i) as affected by transactions, changes, conditions, events or circumstances contemplated or permitted by the Combination Agreement or (ii) for breaches of representations and warranties which in the aggregate do not have a material adverse effect on the ability of Galenica or Acquisitionco to consummate the transactions contemplated by the Combination Agreement, provided however that for the purposes of determining the truth and correctness of any such representations and warranties, all qualifications using the terms “material adverse effect” and “in all material respects” (or similar phrases) will be disregarded; | ||
• | the Company having received a certificate of Galenica and Acquisitionco, signed by a senior officer of Galenica and Acquisitionco and dated the Effective Date, certifying that the applicable conditions have been satisfied, which certificate will cease to have any force and effect after the Effective Time; and | ||
• | Acquisitionco having deposited with the Depositary sufficient funds to complete the transactions contemplated by the Plan of Arrangement and the Depositary having confirmed to the Company the receipt of such funds. |
- 16 -
- 17 -
- 18 -
- 19 -
- 20 -
- 21 -
- 22 -
- 23 -
1. | the price to be paid for each Common Share under the Arrangement represents a premium of approximately 16% over the closing price of the Common Shares on October 16, 2007, the last trading day for the Common Shares on the TSX and NASDAQ prior to the announcement of the Combination Agreement, and a premium of approximately 24% from the 30-day average closing price of the Common Shares on the TSX and NASDAQ on October 16, 2007; | |
2. | the financial aspects of the Arrangement, including the facts that the consideration to be received by the Shareholders is to be paid in cash, the obligations of Galenica and Acquisitionco under the Combination Agreement are not subject to a financing condition and the financing commitment letter that Galenica obtained from RBS contemplated the execution of the Facility Agreement that would provide Galenica with sufficient resources to finance the transactions contemplated under the Combination Agreement; | |
3. | throughout the course of the Strategic Planning Committee’s review process of the Company’s strategic alternatives, the Strategic Planning Committee, with the assistance of management and its financial and legal advisors, did not identify another buyer willing to pay an equivalent or more attractive price than the consideration to be paid under the Arrangement; | |
4. | the Strategic Planning Committee, comprised entirely of independent directors, unanimously recommended that the Board of Directors approve the Combination Agreement and the Arrangement and the transactions contemplated thereby; | |
5. | the evaluation by the Board of Directors of other possible strategic alternatives to maximize shareholder value, and the perceived risks to Aspreva (many of which are beyond Aspreva’s control) associated with such alternatives and the timing and uncertainty of successfully accomplishing any of such alternatives, and the conclusion of the Board of Directors that none of these alternatives were reasonably likely to present superior opportunities for the Company, or reasonably likely to create greater value for Shareholders in comparison to the Arrangement; | |
6. | the Arrangement provides Shareholders with the opportunity to realize value for the entire business of Aspreva. Selling the business in separate parts to multiple purchasers would likely take significantly longer, require significantly greater management commitment (possibly adversely affecting the ongoing operations of Aspreva), provide no assurance of a successful outcome or of the price to be obtained, and require significant tax, legal and regulatory issues to be resolved; | |
7. | the risks associated with substantially all of the Company’s revenue for the foreseeable future being derived from royalties based on the sales of CellCept®. The United States patent covering CellCept® expires in May 2009. Counterparts of this patent expire in most European countries in late 2010, but in some |
- 24 -
instances (for example, Spain, Portugal, Greece and Romania) such patents expire as early as December 2007. The Company expects that following expiration of composition of matter patents, competitors may manufacture and sell generic versions of CellCept®, at a lower price, which will erode the Company’s royalty stream from CellCept®; | ||
8. | the risks associated with the Company being unable to enter into collaborations to develop new indications for drugs and drug candidates. In order to grow the Company’s business, the Company could continue to seek strategic collaborations; however, to date, the Company has only been able to enter into a collaboration agreement with Roche in respect of CellCept®. The Board of Directors was of the view that risks associated with strategic alternatives to pursuing collaborations, such as acquisitions, were high and would erode shareholder value; | |
9. | Securityholders holding or exercising control over approximately 30% of the outstanding Common Shares and approximately 38% of the outstanding Options (as of October 17, 2007, the date on which the Company entered into the Combination Agreement) have entered into the Support Agreements with Acquisitionco pursuant to which, among other things, they agreed to vote such Securities in favour of the Arrangement Resolutions, and that the Support Agreements will terminate if the Combination Agreement is terminated, including if the Combination Agreement is terminated by the Company to enter into a definitive written agreement with respect to a Superior Proposal; | |
10. | the two separate Opinions received by the Strategic Planning Committee and the Board of Directors from Lazard and Lehman Brothers to the effect that, as of the date of their respective Opinions and based on and subject to the assumptions, limitations and qualifications set forth therein, the Purchase Price to be paid to the Shareholders in the Arrangement is fair to such Shareholders from a financial point of view (see “The Arrangement – Opinions of Aspreva’s Financial Advisors”); and | |
11. | the terms and conditions of the Combination Agreement, which were extensively negotiated at arms’-length, including: |
(a) | the reasonableness of the representations, warranties and covenants of the parties, the reasonableness of the restrictions on the conduct of the Company’s business until completion of the Arrangement and the conditions to the respective obligations of the parties; | ||
(b) | the level of “deal certainty” offered by the Combination Agreement, including the assessment by management of the Company as to the commitment and ability of Galenica to close the transactions contemplated by the Arrangement and the likelihood of completing the Arrangement, considering the totality of the terms of the Combination Agreement, including the absence of significant closing conditions other than approval by Securityholders of the Arrangement Resolutions, the approval of the Court, Appropriate Regulatory Approvals and other customary closing conditions; | ||
(c) | the flexibility available to the Company, upon compliance with the conditions of the Combination Agreement, to furnish information and to conduct negotiations with other third parties making an unsolicited proposal to purchase all of the Common Shares or substantially all of the assets of the Company, to change its recommendation to Shareholders in certain circumstances and to terminate the Combination Agreement to enter into a Superior Proposal (subject to payment of the Termination Fee); | ||
(d) | the fact that the Arrangement Resolutions must, subject to the approval of the Court, be approved by not less than two-thirds of the votes cast by Shareholders voting as a separate class, and by two-thirds of the votes cast by Shareholders and Optionholders voting together as a separate class, and the fact that, if a higher offer is made to Securityholders prior to the Meeting, Securityholders are free to support such a higher offer and vote against the Arrangement Resolutions; | ||
(e) | the fact that the Arrangement must be approved by the Court, which will consider, among other things, the fairness of the Arrangement to Securityholders; and |
- 25 -
(f) | the right that will be provided to Shareholders to dissent in respect of the Arrangement and to apply to the Court to have the Court determine the fair value of their Common Shares. |
1. | the risks to Aspreva if the Arrangement is not completed, including the costs incurred in pursuing the Arrangement, the diverting of significant management attention away from the conduct of Aspreva’s business, the uncertainty that might result in potential strategic partners delaying or deferring decisions concerning Aspreva, and the uncertainty that current and prospective Aspreva employees may experience concerning their future roles with Aspreva following successful completion of the Arrangement, which may adversely affect Aspreva’s ability to attract or retain key management and other personnel; | |
2. | the conditions contained in the Combination Agreement regarding Acquisitionco’s obligation to complete the Arrangement; | |
3. | the conditions contained in Galenica’s financing with RBS which limit Galenica’s ability to draw on that financing and thereby fund the Arrangement (Galenica’s obligations under the Combination Agreement are not conditioned on Galenica obtaining such financing); | |
4. | the fact that the Arrangement will be a taxable transaction for most Securityholders and, as a result, taxes will generally be required to be paid by such Securityholders on any gains that result from receipt of the consideration in the Arrangement; | |
5. | the limitations contained in the Combination Agreement on the ability of Aspreva to solicit further expressions of interest from third parties, as well as the fact that if the Combination Agreement is terminated under certain circumstances, Aspreva must pay a Termination Fee in the amount of US$23 million to Acquisitionco; and | |
6. | the fact that following the Arrangement, Aspreva will no longer exist as a public company and Securityholders will forgo any future increase in value that might result from future growth and the potential achievement of Aspreva’s long-term plans. |
- 26 -
- 27 -
- 28 -
1. | at least two-thirds of the votes cast by Shareholders present in person or by proxy at the Meeting, voting together as a class (with each Shareholder entitled to one vote for each Common Share held); and | |
2. | at least two-thirds of the votes cast by Shareholders and Optionholders present in person or by proxy at the Meeting, voting together as a class (with each Shareholder entitled to one vote for each Common Share held and each Optionholder entitled to one vote for each Common Share such holder would have received on a valid exercise of such holder’s Options, without reference to any vesting provisions or exercise price). |
• | facilitate the maximization of shareholder value if a specified percentage of the Common Shares is acquired by any person; | ||
• | protect Aspreva and its Shareholders from abusive acquisition tactics which may not be in the Shareholders’ best interest; and | ||
• | provide a framework in which appropriate take-over bids can be put before Shareholders in a manner that allows Shareholders to make an informed decision with respect to such take-over bids. |
- 29 -
• | ten business days after a public announcement by the Company or by an acquiring person that the person has become an acquiring person; or | ||
• | ten business days after a person commences or announces an intention to commence a take-over bid that, if successful, would result in the person becoming an acquiring person. |
- 30 -
1. | all Options granted and outstanding immediately prior to the Effective Time will be transferred by the Optionholders thereof to Aspreva in exchange for a cash payment equal to the excess, if any, of (i) the product of the number of Common Shares underlying the particular Option and US$26.00 over (ii) the aggregate exercise price payable under such Option by such holder to acquire the Common Shares underlying such Option (or if the exercise price of such Option under the terms of such Option is expressed in Canadian currency, the U.S. dollar equivalent of such exercise price determined by using the U.S. dollar/Canadian dollar daily noon rate as published by the Bank of Canada on the Business Day prior to the Effective Date), payable to each Optionholder in respect of the Option transferred by such Optionholder; | |
2. | with respect to each Option, the Optionholder will cease to be the holder of Options held by such Optionholder, will cease to have any rights as a holder in respect of such Option or under the Stock Option Plan, and such Optionholder’s name will be removed from the registers of Options with respect to such Option as the holder thereof; | |
3. | the Stock Option Plan will be cancelled; | |
4. | immediately after steps 1, 2 and 3 listed above, all Common Shares outstanding immediately prior to the Effective Time (including Dissenting Common Shares and any Common Shares issued pursuant to the exercise of any Option duly exercised prior to the Effective Time in accordance with the provisions of the Stock Option Plan and the option agreement evidencing any such Option), will be and be deemed to be transferred by the Shareholders to Acquisitionco (free and clear of any Liens) in exchange for a cash payment equal to (i) US$26.00 for each Common Share less the amount of any dividend or distribution paid in respect of each Common Share from October 17, 2007 to the Effective Time, other than for Dissenting Common Shares, (ii) the fair value for each Dissenting Common Share held by a Dissenting Shareholder and (iii) in respect of any Shareholder who exercises Dissent Rights and who is ultimately not entitled to be paid fair value for the Common Shares in respect of which they have exercised Dissent Rights, the price in part (i) above for each such Common Share; and | |
5. | with respect to each Common Share: |
(a) | the holder of such Common Share will cease to be the holder of such Common Share; | ||
(b) | the holder’s name will be removed from the central securities register for Common Shares with respect to such Common Share; and | ||
(c) | legal and beneficial title to such Common Share will vest in Acquisitionco, and Acquisitionco will be and be deemed to be the transferee and legal and beneficial owner of all Common Shares (free and clear of any Liens) and will be entered in the central securities register for the Common Shares as the sole holder thereof, and the former holder and beneficial owner of such Common Share will cease to have any rights as a shareholder in respect of such Common Share. |
- 31 -
- 32 -
- 33 -
Options that are | ||||||||||||||||||||||||
Expected to Vest as a | ||||||||||||||||||||||||
Options that have Vested | Result of the | |||||||||||||||||||||||
and are Exercisable(1) | Arrangement(2) | Total | ||||||||||||||||||||||
Common | Payment | Common | Payment | Common | Payment | |||||||||||||||||||
Name | Shares | (US$) | Shares | (US$) | Shares | (US$) | ||||||||||||||||||
J. William Freytag | Nil | Nil | Nil | Nil | Nil | Nil | ||||||||||||||||||
Chairman & Chief Executive Officer | ||||||||||||||||||||||||
Noel Hall | 40,521 | 213,306 | 34,479 | 51,515 | 75,000 | 264,821 | ||||||||||||||||||
Co-founder President & Director | ||||||||||||||||||||||||
Bruce Cousins | 60,578 | 608,133 | 61,597 | 225,345 | 122,175 | 833,478 | ||||||||||||||||||
Executive Vice President & Chief Financial Officer | ||||||||||||||||||||||||
Usman Azam | Nil | Nil | 225,000 | 449,813 | 225,000 | 449,813 | ||||||||||||||||||
Executive Vice President & Chief Medical Officer | ||||||||||||||||||||||||
Charles Goulburn | 53,117 | 867,544 | 71,054 | 953,074 | 124,171 | 1,820,618 | ||||||||||||||||||
Executive Vice President, Global Pharmaceuticals Operations | ||||||||||||||||||||||||
Paul Brennan | Nil | Nil | 100,000 | 109,367 | 100,000 | 109,367 | ||||||||||||||||||
Senior Vice President, Business Development | ||||||||||||||||||||||||
Darcy O’Grady | 14,444 | Nil | 50,556 | Nil | 65,000 | Nil | ||||||||||||||||||
Vice President, Global Human Resources | ||||||||||||||||||||||||
Kirk Calhoun | 54,353 | 822,739 | Nil | Nil | 54,353 | 822,739 | ||||||||||||||||||
Director | ||||||||||||||||||||||||
Richard Glickman(3) | 51,722 | Nil | 4,695 | Nil | 56,417 | Nil | ||||||||||||||||||
Director | ||||||||||||||||||||||||
Julia Levy | 31,883 | 369,478 | Nil | Nil | 31,883 | 369,478 | ||||||||||||||||||
Director | ||||||||||||||||||||||||
R. Hector Mackay-Dunn, Q.C. | 24,166 | 111,034 | Nil | Nil | 24,166 | 111,034 | ||||||||||||||||||
Director | ||||||||||||||||||||||||
George Milne | 54,353 | 822,739 | Nil | Nil | 54,353 | 822,739 | ||||||||||||||||||
Director | ||||||||||||||||||||||||
Arnold Oronsky | 21,666 | 91,439 | Nil | Nil | 21,666 | 91,439 | ||||||||||||||||||
Director | ||||||||||||||||||||||||
William Hunter | 21,250 | Nil | 8,750 | Nil | 30,000 | Nil | ||||||||||||||||||
Director | ||||||||||||||||||||||||
Ronald Hunt | 21,666 | 91,439 | Nil | Nil | 21,666 | 91,439 | ||||||||||||||||||
Director | ||||||||||||||||||||||||
TOTAL | 449,719 | 3,997,851 | 556,131 | 1,789,114 | 1,005,850 | 5,786,965 |
(1) | As at November 9, 2007. | |
(2) | Includes Options that are expected to vest in accordance with their terms after November 9, 2007 and prior to the Effective Time. | |
(3) | Mr. Glickman has agreed to exercise all of his vested Options that have an exercise price of less than US$26.00 on or before the day prior to the Effective Date. Thus, the payment excludes approximately US$255,454 that Mr. Glickman would have otherwise been entitled to receive in settlement of his Options that had vested as at November 9, 2007, and a further US$17,451 that Mr. Glickman would have otherwise been entitled to receive in settlement of a further 4,695 Options that are expected to vest in accordance with their terms after November 9, 2007 and prior to the completion of the Arrangement. Mr. Glickman has agreed to surrender to Aspreva for cancellation, effective as of the day prior to the Effective Date, for no consideration, all unvested Options that are then held by Mr. Glickman and which remain unvested in accordance with their terms as of such date. |
- 34 -
Name | Title | Bonus Amount | ||||
J. William Freytag | Chairman & Chief Executive Officer | C$ | 314,000 | (1) | ||
Noel Hall | Co-Founder & President | C$ | 424,750 | |||
Bruce Cousins | Executive Vice President & Chief | |||||
Financial Officer | C$ | 432,000 | ||||
Usman Azam | Executive Vice President & Chief | |||||
Medical Officer | C$ | 350,000 | ||||
Charles Goulburn | Executive Vice President, Global | |||||
Pharmaceuticals Operations | US$ | 290,000 | ||||
Paul Brennan | Senior Vice President, Business | |||||
Development | C$ | 265,000 | ||||
Darcy O’Grady | Vice President, Global Human | |||||
Resources | C$ | 230,000 |
(1) | Bonus amount stipulated in Dr. Freytag’s employment agreement. |
- 35 -
Name | Salary | Benefits | ||||||
J. William Freytag | C$ | 658,500 | C$ | 987,750 | ||||
Noel Hall | C$ | 424,750 | C$ | 424,750 | ||||
Bruce Cousins | C$ | 360,000 | C$ | 360,000 | ||||
Usman Azam | US$ | 350,000 | US$ | 350,000 | ||||
Charles Goulburn | US$ | 290,000 | US$ | 290,000 | ||||
Paul Brennan | C$ | 265,000 | C$ | 265,000 | ||||
Darcy O’Grady | C$ | 230,000 | C$ | 230,000 |
- 36 -
- 37 -
• | certain constating documents and consents; | ||
• | a legal opinion of Galenica’s counsel; | ||
• | certified copies of the Combination Agreement, press release announcing the execution of the Combination Agreement, Interim Order, Circular, Notice of Special Meeting, Final Order and an undertaking of Galenica to deposit the Consideration with the Depositary; | ||
• | a certificate of Galenica confirming that all regulatory and competition authorizations necessary in connection with the Arrangement have been obtained and that, to the best of Galenica’s knowledge and belief (having made due and careful enquiry), (i) as of October 17, 2007, there are no claims, actions or legal proceedings pending or threatened against Aspreva or any of its Subsidiaries before any governmental entity, which would be material to Aspreva, and (ii) neither Aspreva nor any of its Subsidiaries, nor their respective assets and properties, is subject to any outstanding judgment, order, writ, injunction or decree that has had or would have a Material Adverse Effect on Aspreva; and | ||
• | evidence that the majority of key management were employed by Aspreva on the date of the press release announcing the execution of the Combination Agreement. |
- 38 -
• | the Arrangement Resolutions having been approved by the Securityholders at the Meeting in accordance with the Interim Order and applicable Laws; | ||
• | the Interim Order and the Final Order each having been obtained and not having been set aside or modified in a manner that would have a Material Adverse Effect on the Company or a material adverse effect on Galenica; | ||
• | no provision of any applicable Laws will be in effect, and no judgment, injunction, order or decree will have been entered since the date of the Combination Agreement and will be in effect, that makes the Arrangement illegal or otherwise restrains, enjoins or otherwise prohibits the consummation of the Arrangement, except where the violation of such Law, judgment, injunction, order or decree that would occur if the Arrangement were consummated would not have a Material Adverse Effect on the Company or a material adverse effect on Galenica; and | ||
• | each Appropriate Regulatory Approval having been obtained (or concluded, or in the case of waiting or suspensory periods, expired or been terminated) and being in full force and effect (and not being subject to any stop-order or proceeding seeking a stop-order or revocation) except where the failure to obtain such Appropriate Regulatory Approval results from or is attributable to Galenica’s or Acquisitionco’s failure to comply or consent to the compliance with any condition that does not constitute a Materially Burdensome Condition. For purposes of the Combination Agreement, except as otherwise agreed to by the parties, a condition will be deemed to be a “Materially Burdensome Condition” if (i) such condition is imposed by the Minister under the Investment Canada Act as a prerequisite to the granting of the Investment Canada Act Approval and (ii) compliance with such condition would impose significant material burdens on the Company or Galenica. |
- 39 -
• | the Company having complied in all material respects with its covenants in the Combination Agreement required to be complied with by the Company on or before the Effective Date; | ||
• | the representations and warranties of the Company in the Combination Agreement being true and correct as of the Effective Date as if made on and as of such date (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties being true and correct as of that date) except (i) as affected by transactions, changes, conditions, events or circumstances contemplated or permitted by the Combination Agreement or (ii) for breaches of representations and warranties which in the aggregate do not have a Material Adverse Effect on the Company, provided however that for the purposes of determining the truth and correctness of any such representations and warranties, all qualifications using the term Material Adverse Effect and “in all material respects” (or similar phrase) will be disregarded; | ||
• | since the date of the Combination Agreement, there has not occurred any event that has resulted in a Material Adverse Effect on the Company; | ||
• | Acquisitionco receiving a certificate of the Company signed by a senior officer of the Company and dated the Effective Date certifying that the applicable conditions have been satisfied, which certificate will cease to have any force and effect after the Effective Time; and | ||
• | the Shareholders having approved the Rights Plan Waiver Resolution and the Rights Plan Amending Agreement having been executed and delivered. |
• | each of Galenica and Acquisitionco having complied in all material respects with its covenants in the Combination Agreement required to be complied with by Galenica or Acquisitionco on or before the Effective Date; | ||
• | the representations and warranties of each of Galenica and Acquisitionco in the Combination Agreement being true and correct as of the Effective Date as if made on and as of such date (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties being true and correct as of that date) except (i) as affected by transactions, changes, conditions, events or circumstances contemplated or permitted by the Combination Agreement or (ii) for breaches of representations and warranties which in the aggregate do not have a material adverse effect on the ability of Galenica or Acquisitionco to consummate the transactions contemplated by the Combination Agreement; provided, however, that for the purposes of determining the truth and correctness of any such representations and warranties, all qualifications using the terms “material adverse effect” and “in all material respects” (or similar phrase) will be disregarded; | ||
• | the Company having received a certificate of Galenica and Acquisitionco, signed by a senior officer of Galenica and Acquisitionco and dated the Effective Date, certifying that the applicable conditions have been satisfied, which certificate will cease to have any force and effect after the Effective Time; and | ||
• | Acquisitionco having deposited with the Depositary sufficient funds to complete the transactions contemplated by the Plan of Arrangement and the Depositary having confirmed to the Company the receipt of such funds, which will be held by the Depositary in an escrow or restricted account pursuant to an agreement among Acquisitionco, Acquisitionco’s lenders and the Depositary, in a form satisfactory to the Company, acting reasonably, pursuant to which the Depositary will be irrevocably authorized and instructed to release the funds to the Securityholders, in its capacity as depositary in respect of the Arrangement, upon the Arrangement becoming effective. |
- 40 -
• | changes or developments in international, Canadian, United States or EU political, economic, financial or market conditions, or in the economy, political or market conditions or currency exchange rates in Canada, the United States or the EU; | ||
• | changes or developments resulting from any natural disaster, any act of sabotage or terrorism or any outbreak of hostilities or war, or any escalation of any such natural disaster or acts of sabotage or terrorism or hostilities or war; | ||
• | conditions generally affecting the pharmaceutical or biotechnology sector or companies in that sector (except to the extent such conditions have a disproportionately large adverse effect on the Company and the Subsidiaries by comparison to the adverse effect such conditions have generally on the other companies in that sector, it being understood that, in determining whether there has been or would be a Material Adverse Effect on the Company, such disproportionately large adverse effect may be taken into account only to the limited extent that it exceeds the adverse effect such conditions have generally on the other companies in that sector); | ||
• | conditions generally affecting companies in the United States, Canada or the EU involved in the development or marketing of pharmaceutical products used or useful in the treatment of diseases requiring immuno-suppression (except to the extent such conditions have a disproportionately large adverse effect on the Company and the Subsidiaries by comparison to the adverse effect such conditions have generally on the other companies involved in the development or marketing of such products, it being understood that, in determining whether there has been or would be a Material |
- 41 -
Adverse Effect on the Company, such disproportionately large adverse effect may be taken into account only to the limited extent that it exceeds the adverse effect such conditions have generally on the other companies involved in the development or marketing of such products); | |||
• | the introduction, commercial success, lack of commercial success, side effects or pre-clinical or clinical trial results (including adverse events) of any product or product candidate (of a person other than the Company and the Subsidiaries) similar to or potentially competitive with the Specified Pharmaceutical Product; | ||
• | the payment of any amounts due to, or the provision of any other benefits to, any officers or employees under employment contracts, non-competition agreements, employee benefit plans, severance arrangements or other arrangements in existence as of the date of the Combination Agreement and disclosed in the Disclosure Letter; | ||
• | any breach by Galenica of the Combination Agreement or the Confidentiality Agreement; | ||
• | the announcement of the execution of the Combination Agreement, the pendency of the transactions contemplated hereby, the performance of any obligation hereunder or the completion of any of the transactions contemplated hereby, including any Pre-Acquisition Reorganization (including any litigation or impact on the relationship of the Company or any of the Subsidiaries with employees, customers, suppliers, partners, service providers or creditors); | ||
• | any event, occurrence, development or circumstance disclosed in the Disclosure Letter; | ||
• | the taking of any action, or any failure to act, contemplated or permitted by the Combination Agreement or consented to by Galenica or Acquisitionco; | ||
• | changes in GAAP or applicable Laws or interpretations thereof; | ||
• | failure to meet any published or other revenue or earnings estimates or projections of the Company, or a decline in the market price or volume of trading of the Common Shares on the TSX or Nasdaq (in and of itself),provided, however,that notwithstanding the foregoing, any adverse effect on the business, operations or financial condition of the Company and the Subsidiaries that has resulted in such failure or such decline may be taken into account in determining whether there has been a Material Adverse Effect on the Company; or | ||
• | any request or requirement by any Governmental Entity that any of Galenica, Acquisitionco, the Company or any of the Subsidiaries enter into any agreement or arrangement, or take any action, as a condition or prerequisite to the granting of any of the Appropriate Regulatory Approvals. |
(a) | each of the Company and the Subsidiaries will, for the purpose of endeavouring to maintain the Company’s goodwill and ongoing business, use commercially reasonable efforts to (i) carry on its business in the ordinary course consistent with past practice, (ii) keep available the services of its current officers and employees, and (iii) maintain good relations with customers and suppliers; and | ||
(b) | the Company will not, nor will it permit any of the Subsidiaries to: |
• | split, combine, subdivide or reclassify any of its share capital or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its share capital; | ||
• | issue, reserve, set aside, repurchase, redeem or otherwise acquire any shares of its share capital or any securities or obligations convertible into, exercisable or exchangeable for, or any rights, warrants, calls, subscriptions or options to acquire, shares of its share capital or authorize any of the foregoing; |
- 42 -
• | authorize any of the foregoing, in each case other than pursuant to (i) Options issued prior to the date of the Combination Agreement, (ii) Options issued to new employees of the Company and the Subsidiaries after the date of the Combination Agreement in the ordinary course of business not to exceed Options for 250,000 Common Shares, or (iii) in compliance with the terms of the Combination Agreement; | ||
• | declare, set aside for payment or pay any dividend on or make any other distribution in respect of any Common Shares unless the Consideration payable to each holder of Common Shares will be reduced by the amount of such dividend or distribution paid in respect of those Common Shares; | ||
• | amend its constating documents; | ||
• | sell, pledge, encumber, lease (whether such lease is an operating or capital lease or a sale and lease back of assets) or otherwise dispose of any material assets other than (i) in the ordinary course of business, (ii) pursuant to any Material Contract existing at the date of the Combination Agreement, (iii) as security for borrowings permitted by the terms of the Combination Agreement or (iv) pursuant to plans or proposals disclosed in the Disclosure Letter; | ||
• | incur any material indebtedness for borrowed money other than (i) short-term borrowings incurred in the ordinary course of business not to exceed US$1 million, and (ii) additional borrowings under credit lines existing as of the date of the Combination Agreement incurred in the ordinary course of business and not to exceed US$1 million, or pursuant to any modifications, renewals or replacements of any such credit lines; | ||
• | enter into any material operating lease or create any Liens, other than permitted Liens, on any material property of the Company in connection with any indebtedness for borrowed money (other than any indebtedness permitted pursuant to the terms of the Combination Agreement); | ||
• | terminate, amend or modify the Roche Agreement, except as required by the terms of the Roche Agreement or applicable Laws; | ||
• | materially amend or prematurely terminate any Material Contract except in the ordinary course of business or where failure to amend or terminate a Material Contract would, in the reasonable judgment of the Company, have an adverse impact on the Company or any Subsidiary of the Company; | ||
• | authorize, make or commit to make any capital expenditures (including capital lease obligations) in excess of US$1 million individually or in the aggregate; | ||
• | other than in the ordinary course of business, sell, pledge, encumber, lease (whether such lease is a sale and lease back of assets) or otherwise dispose of any assets; | ||
• | increase in any material manner the compensation of any of its directors, officers or employees or enter into, establish or amend any plan for the benefit of any director or employee of the Company, other than: (i) as required pursuant to applicable Law, the Combination Agreement, the Arrangement or the terms of contracts in effect as of the date of the Combination Agreement; and (ii) increases in salaries, wages and benefits effected in the ordinary course of business; | ||
• | make any material changes to the existing accounting practices, methods, and principles relating to the Company or any of the Subsidiaries, except as required by applicable Laws or GAAP; | ||
• | except as required by applicable Law or in the ordinary course of business, (i) make, change or rescind any material tax election, (ii) take any action, or omit to take any action, in either case inconsistent with past practice, relating to the filing of any tax return or the payment of any tax, (iii) settle any material tax claim or assessment in excess of US$1 million, (iv) surrender any right or claim to a tax refund, or (v) materially amend any of its transfer pricing policies; and | ||
• | the Company will promptly, after the matter in question comes to the knowledge of the senior leadership team of Aspreva, advise Acquisitionco in writing of (i) any event, condition or circumstance that would be reasonably expected to cause any representation or warranty of the Company contained in the Combination Agreement to be materially untrue at the Effective Time (or, in the case of any representation or warranty made as of a specified date, as of such specified |
- 43 -
date), in either case such that the condition would not be satisfied; and (ii) of any material breach by the Company of any covenant contained in the Combination Agreement. |
• | upon approval of the Rights Plan Waiver Resolution and upon receipt of the requisite approval of the TSX, forthwith execute and deliver the Rights Plan Amending Agreement and cause such agreement to be and remain in full force and effect, unamended; | ||
• | use best efforts to satisfy or cause to be satisfied as soon as reasonably practicable all the conditions precedent that are set forth in the Combination Agreement (to the extent the same is within the Company’s control); | ||
• | apply for (including preparing and filing promptly documents and submissions of information required or requested by any Governmental Entity in respect of such application) and use best efforts to obtain as promptly as practicable all Appropriate Regulatory Approvals required to be obtained by the Company or any of the Subsidiaries in order for the Company to consummate the transactions contemplated hereby and, in doing so, keep Acquisitionco fully informed as to the status of the proceedings related to obtaining such Appropriate Regulatory Approvals; | ||
• | except where prohibited by Law, use best efforts to (i) cooperate in all respects with Galenica (including but not limited to, providing Galenica with any information requested by it), in connection with any filing, application or submission with a Governmental Entity in connection with the transactions contemplated by the Combination Agreement and in connection with any investigation or other inquiry by or before a Governmental Entity relating to the transactions contemplated by the Combination Agreement, (ii) promptly notify Galenica of any written communication to that party from any Governmental Entity and permit Galenica to review in advance any proposed communication to any of the foregoing, (iii) consult with Galenica prior to participating in any substantive meeting, telephone call or discussion with any Governmental Entity in respect of any filings, investigation or inquiry concerning the Combination Agreement or the transactions contemplated therein and provide Galenica the opportunity to attend and participate in any such meeting, telephone call or discussion, and (iv) furnish Galenica with copies of all correspondence, filings, and written communications (or a reasonably detailed summary of any oral communications) between the Company and its representatives on the one hand, and any Governmental Entity or members of their respective staffs on the other hand, with respect to the Combination Agreement and the transactions contemplated therein; | ||
• | use best efforts to resolve such objections, if any, as may be asserted by a Governmental Entity or other person with respect to the transactions contemplated by the Combination Agreement; | ||
• | diligently defend all lawsuits or other legal, regulatory or other proceedings to which the Company is a party challenging or affecting the Combination Agreement or the consummation of the transactions contemplated therein; | ||
• | carry out the terms of the Interim Order and the Final Order applicable to the Company and use commercially reasonable efforts to comply promptly with all requirements which applicable Laws may impose on the Company or the Subsidiaries with respect to the transactions contemplated by the Combination Agreement and the Arrangement; | ||
• | use best efforts to have lifted or rescinded any injunction or restraining order or other order relating to the Company which may adversely affect the ability of the parties to consummate the transactions contemplated by the Combination Agreement; | ||
• | effect all necessary registrations, filings and submissions of information required by Governmental Entities from the Company or any of the Subsidiaries in connection with the transactions contemplated by the Combination Agreement; |
- 44 -
• | use best efforts to obtain all waivers, consents and approvals from other parties to loan agreements, leases or other contracts required to be obtained by the Company or a Subsidiary to consummate the transactions contemplated by the Combination Agreement which the failure to obtain would materially and adversely affect the ability of the Company or the Subsidiaries to consummate the transactions contemplated by the Combination Agreement; | ||
• | retain a proxy solicitation firm to actively solicit from Securityholders proxies in favour of the resolutions to be put before the Meeting; and | ||
• | use best efforts to cause the date of the Meeting Date to be not later than December 21, 2007 (the “Meeting Date Deadline”)provided, however, that (A) if the Board of Directors determines in good faith that as a result of circumstances beyond the reasonable control of the Company (including the need to provide appropriate disclosures to Securityholders in advance of the Meeting and including the failure to obtain sufficient proxies to assure approval of the Arrangement Resolutions), the Meeting cannot or should not be held on or prior to the Meeting Date Deadline, the Company may by written notice to Galenica extend the Meeting Date Deadline on one or more successive occasions to a later date established by the Board of Directors and determined by the Board of Directors in good faith to be necessary or appropriate as a result of such circumstances beyond the reasonable control of the Company;provided further, that the Meeting Date Deadline may not be extended pursuant to this clause (A) to a date beyond January 22, 2008, and (B) if in the reasonable judgement of the Company, a breach of the Combination Agreement by Galenica or Acquisitionco results in a delay in the Meeting, the Meeting Date Deadline will automatically be extended by the amount of time the Meeting has been delayed by such breach. |
• | use best efforts to satisfy or cause to be satisfied as soon as reasonably practicable all conditions precedent that are set forth in the Combination Agreement (to the extent the same is within their control); | ||
• | apply for (including providing and filing promptly documents and submissions of information required or requested by any Governmental Authority in respect of such application) and use best efforts to obtain all Appropriate Regulatory Approvals required to be obtained by Galenica or Acquisitionco or any of their affiliates in order for Galenica or Acquisitionco to consummate the transactions contemplated by the Combination Agreement and, in doing so, to keep the Company fully informed as to the status of the proceedings related to obtaining such Appropriate Regulatory Approvals, including providing the Company with copies of all related applications and notifications, in draft form, to provide the Company an opportunity to provide its reasonable comments thereon; | ||
• | except where prohibited by applicable Law, use best efforts to (i) cooperate in all respects with the Company (including providing the Company with any information requested by it, in connection with any filing, application or submission with a Governmental Entity in connection with the transactions contemplated by the Combination Agreement and in connection with any investigation or other inquiry by or before a Governmental Entity relating to any of the transactions contemplated by the Combination Agreement, including any proceeding initiated by a private party), (ii) promptly notify the Company of any written communication to that party from any Governmental Entity and permit the Company to review in advance any proposed communication to any of the foregoing, (iii) consult with the Company prior to participating in any substantive meeting, telephone call or discussion with any Governmental Entity in respect of any filings, investigation or inquiry concerning the Combination Agreement or the transactions contemplated therein and provide the Company the opportunity to attend and participate in any such meeting, telephone call or discussion, and (iv) furnish the Company with copies of all correspondence, filings and written communications (or a reasonably detailed summary of any oral communications) between Galenica or Acquisitionco and their respective |
- 45 -
representatives on the one hand, and any Governmental Entity or members of their respective staffs on the other hand, with respect to the Combination Agreement and the transactions contemplated therein; | |||
• | use best efforts to resolve such objections, if any, as may be asserted by a Governmental Entity or other person with respect to the transactions contemplated by the Combination Agreement; | ||
• | diligently defend all lawsuits or other legal, regulatory or other proceedings to which either Galenica or Acquisitionco is a party challenging or affecting the Combination Agreement or the consummation of the transactions contemplated therein; | ||
• | carry out the terms of the Interim Order and Final Order applicable to Galenica and Acquisitionco and comply promptly with all requirements which applicable Laws may impose on Galenica or Acquisitionco with respect to the transactions contemplated by the Combination Agreement and by the Arrangement; | ||
• | effect all necessary registrations, filings and submissions of information required by Governmental Entities from Galenica or Acquisitionco or their affiliates in connection with the transactions contemplated by the Combination Agreement; | ||
• | use best efforts to obtain all waivers, consents and approvals required to be obtained by Galenica or Acquisitionco or any affiliate of Galenica or Acquisitionco to consummate the transactions contemplated by the Combination Agreement which the failure to obtain would materially and adversely affect the ability of Acquisitionco or Galenica to consummate the transactions contemplated by the Combination Agreement; and | ||
• | pay all requisite filing fees and taxes thereon in relation to any filing or application in respect of any Appropriate Regulatory Approvals. |
• | Acquisitionco and Galenica will, and Galenica will cause Acquisitionco to, use its best efforts to negotiate and enter into the Definitive Financing Agreements with such third parties (it being understood that such Definitive Financing Agreements will contain no funding or financing conditions that are broader or more onerous than the conditions set forth in the Combination Agreement and will otherwise be fully consistent with the Combination Agreement); | ||
• | Acquisitionco and Galenica will, and Galenica will cause Acquisitionco to, use best efforts to satisfy all conditions in such Definitive Financing Agreements; | ||
• | neither Acquisitionco nor Galenica will enter into, or permit the entering into, of any material amendment to any Commitment Letter or Definitive Financing Agreement, nor will Acquisitionco or Galenica waive any material provision thereof or right thereunder, or acquiesce in any action or decision of any other party thereto that is adverse to the interests of Acquisitionco, Galenica, the Company or any of the Securityholders; | ||
• | in the event any portion of the financing referred to in the Definitive Financing Agreements becomes unavailable, Acquisitionco and Galenica have agreed, and Galenica has agreed to cause Acquisitionco to, use its best efforts to arrange to obtain any such portion from alternative sources as promptly as practicable; and |
- 46 -
• | Galenica will agree to guarantee Acquisitionco’s obligations under the financing referred to in the Definitive Financing Agreements and has agreed to use its best efforts to negotiate Definitive Financing Agreements with third parties in connection with such guarantee. |
• | solicit or knowingly encourage the making of an Acquisition Proposal by any person (other than Galenica and Acquisitionco), including by way of furnishing non-public information regarding the Company and its Subsidiaries to such person; | ||
• | participate in any negotiations or discussions with any person (other than Galenica and Acquisitionco) regarding any Acquisition Proposal made by such person; | ||
• | approve or recommend any Acquisition Proposal; | ||
• | enter into any agreement in respect of any Acquisition Proposal with the person making such Acquisition Proposal (other than a confidentiality agreement referred to in the Combination Agreement); or | ||
• | withdraw or modify in a manner adverse to Acquisitionco, or adopt a resolution withdrawing or modifying in a manner adverse to Acquisitionco, the recommendation of the Board of Directors that the Securityholders vote in favour of the Arrangement Resolutions, it being understood and agreed that a failure by the Board of Directors to affirm the approval or recommendation of the Board of Directors of the transactions contemplated in the Combination Agreement within 10 Business Days after an Acquisition Proposal has been publicly announced will be deemed to be an adverse modification;provided, however, that prior to the date the Arrangement Resolutions are approved by the Securityholders as required by the Combination Agreement, nothing contained in the Combination Agreement will prevent (i) the Board of Directors from approving or recommending an Acquisition Proposal or (ii) the Company from entering into an agreement (subject to compliance with certain terms of the Combination Agreement) or engaging in negotiations or discussions with any person who has made a bona fide Acquisition Proposal that was not solicited or knowingly encouraged in breach of the terms of the Combination Agreement, or with any representative of any such person, where the Board of Directors of the Company determines in good faith after consultation with the Company’s financial advisors and outside legal counsel that the Acquisition Proposal constitutes (or would constitute, if consummated in accordance with its terms), or could reasonably be expected to result in, a Superior Proposal. |
- 47 -
• | the Company will not enter into the Proposed Agreement or support in any way the Acquisition Proposal reflected in the Proposed Agreement; | ||
• | the Board of Directors will not withdraw, modify or change its recommendation of the Arrangement on account of the Proposed Agreement; and | ||
• | the Company, Galenica and Acquisitionco will enter into an amendment to the Combination Agreement in the form accompanying the Amended Offer. |
• | a confidentiality agreement entered into prior to the date of the Combination Agreement may be amended by the Company to expressly permit such other party to make an Acquisition Proposal; and |
- 48 -
• | the Company will promptly provide Acquisitionco with, or access to, all non-public information provided by the Company to such other person after receipt of such Acquisition Proposal and not previously provided to Acquisitionco or Galenica and provide Acquisitionco with access to all further non-public information regarding the Company provided to such other person not previously provided to Acquisitionco or Galenica. |
• | by the mutual agreement of the Company and Acquisitionco (without the need for any action on the part of the Securityholders); | ||
• | by Acquisitionco upon written notice to the Company within 10 Business Days if (i) the Board of Directors has failed to recommend or has withdrawn or modified or changed in a manner adverse to Acquisitionco its approval or recommendation of the Arrangement, or (ii) the Board of Directors has approved or recommended a Superior Proposal; | ||
• | by the Company upon written notice to Acquisitionco in order to enter into a definitive written agreement with respect to a Superior Proposal, subject to compliance with the terms of the Combination Agreement and the payment of the Termination Fee required to be paid pursuant to the terms of the Combination Agreement; | ||
• | by either the Company or Acquisitionco, upon written notice by either one to the other: |
(a) | if the Effective Date does not occur on or before February 29, 2008, except that the right to terminate the Combination Agreement under the terms therein will not be available to any party to the Combination Agreement whose failure to fulfil any of its obligations has been a significant cause of, or resulted in, the failure of the Effective Date to occur by such date; | ||
(b) | if the Meeting is held and the Arrangement Resolutions are not passed by the Securityholders in accordance with applicable Laws and the Interim Order or the Rights Plan Waiver Resolution is not passed by the holders of Common Shares in accordance with applicable Laws; or | ||
(c) | if (i) any applicable Laws make the consummation of the Arrangement or the transactions contemplated by the Combination Agreement illegal or otherwise prohibited and such Laws have become final and non-appealable and (ii) the violation of such Laws that would occur if such transactions were consummated would have a Material Adverse Effect on the Company or a material adverse effect on Galenica; |
• | by the Company upon written notice to Acquisitionco if Acquisitionco at any time prior to the Effective Date is in breach of its representations or obligations pursuant to the terms of the Combination Agreement or does not provide the Depositary under the Plan of Arrangement with sufficient funds to complete the transactions contemplated by the terms of the Plan of Arrangement as required pursuant to the terms of the Combination Agreement; | ||
• | by either the Company or Acquisitionco upon written notice by either one to the other, if (i) a final and non-appealable order of a United States or Canadian court having jurisdiction has been entered and remains in effect, that makes consummation of the transactions contemplated by the Combination Agreement illegal or otherwise prohibited, and (ii) the violation of such order that would occur if such transactions were consummated would have a Material Adverse Effect on the Company or a material adverse effect on Galenica; | ||
• | by Acquisitionco upon written notice to the Company, during the period beginning on the Meeting Date Deadline and ending on the earlier of (i) the date immediately prior to the Meeting Date or (ii) the date 10 days after the Meeting Date Deadline, if the Meeting will not have been held by the Meeting Date Deadline (as the Meeting Date Deadline may have been extended pursuant to the terms of the Combination Agreement); and | ||
• | by the Company upon written notice to Acquisitionco, during the period beginning on the Meeting Date Deadline and ending on the earlier of (i) the date immediately prior to the date on which Galenica enters into the Definitive Financing Agreements or (ii) the date 10 days after the Meeting Date |
- 49 -
Deadline, if Galenica has not entered into the Definitive Financing Agreements by the Meeting Date Deadline (as the Meeting Date Deadline may have been extended pursuant to the terms of the Combination Agreement). |
• | Acquisitionco terminates the Combination Agreement pursuant to the terms thereof due to (i) the Board of Directors having failed to recommend or having withdrawn or modified or changed in a manner adverse to Acquisitionco its approval or recommendation of the Arrangement, or (ii) the Board of Directors having approved or recommended a Superior Proposal; or | ||
• | the Company terminates the Combination Agreement pursuant to the terms thereof in order to enter into a definitive written agreement with respect to a Superior Proposal; or | ||
• | either the Company or Acquisitionco terminates the Combination Agreement pursuant to the terms thereof in circumstances where the Meeting is held and the Arrangement Resolutions or the Rights Plan Waiver Resolution have not received the required approval at the Meeting and: |
(a) | abona fideAcquisition Proposal has been publicly announced by any person other than Acquisitionco or Galenica prior to the Meeting and not withdrawn, and | ||
(b) | either (i) a transaction contemplated by an Acquisition Proposal is consummated after such termination of the Combination Agreement and prior to the expiration of 12 months following the date of such termination of the Combination Agreement or (ii) the Company enters into a definitive agreement with respect to a transaction contemplated by an Acquisition Proposal, after such termination of the Combination Agreement and prior to the expiration of 12 months following the date of such termination of the Combination Agreement, and thereafter consummates such transaction;provided, however, that for these purposes, all references to “20%” in the definition of Acquisition Proposal are deemed to refer to “50%”. |
• | effect such reorganization of its business, operations and assets and the integration of other affiliated businesses of the Company or the Subsidiaries as Acquisitionco may request, acting reasonably (each a “Pre-Acquisition Reorganization”); and | ||
• | co-operate with Galenica and its advisors to determine the nature of the Pre-Acquisition Reorganizations that might be undertaken and the manner in which they would most effectively be undertaken. |
- 50 -
- 51 -
- 52 -
- 53 -
- 54 -
- 55 -
- 56 -
(a) | determine the fair value that the Dissenting Common Shares had immediately before the passing of the Arrangement Resolutions, excluding any appreciation or depreciation in anticipation of the Arrangement unless exclusion would be inequitable, or order that such value be established by arbitration or by reference to the registrar, or a referee of the Court; | ||
(b) | join in the application each Dissenting Shareholder who has not agreed with the Company on the amount of the payout value of the Dissenting Common Shares; and | ||
(c) | make consequential orders and give directions as it considers appropriate. |
- 57 -
Price Range | ||||||||
High | Low | Volume | ||||||
Fiscal 2007 | ||||||||
November (to November 14) | C$24.68 | C$23.26 | 157,990 | |||||
October | C$25.20 | C$20.18 | 381,233 | |||||
Third Quarter | C$21.45 | C$16.69 | 449,873 | |||||
Second Quarter | C$26.23 | C$17.56 | 432,212 | |||||
First Quarter | C$26.34 | C$22.11 | 352,885 | |||||
Fiscal 2006 | ||||||||
Fourth Quarter | C$30.18 | C$19.58 | 743,326 | |||||
Third Quarter | C$31.50 | C$22.00 | 698,664 | |||||
Second Quarter | C$38.36 | C$25.95 | 759,978 | |||||
First Quarter | C$34.62 | C$17.66 | 1,169,519 |
- 58 -
Price Range | ||||||||
High | Low | Volume | ||||||
Fiscal 2007 | ||||||||
November (to November 14) | US$25.57 | US$25.37 | 4,736,238 | |||||
October | US$25.84 | US$20.24 | 24,200,363 | |||||
Third Quarter | US$22.20 | US$15.73 | 23,920,274 | |||||
Second Quarter | US$23.38 | US$16.60 | 24,332,736 | |||||
First Quarter | US$22.46 | US$18.71 | 16,045,447 | |||||
Fiscal 2006 | ||||||||
Fourth Quarter | US$26.90 | US$17.29 | 25,580,623 | |||||
Third Quarter | US$28.24 | US$19.72 | 15,925,235 | |||||
Second Quarter | US$34.89 | US$22.50 | 27,549,550 | |||||
First Quarter | US$29.27 | US$15.49 | 23,677,442 |
- 59 -
- 60 -
- 61 -
- 62 -
- 63 -
- 64 -
- 65 -
Victoria, British Columbia | ||
November 15, 2007 | J. William Freytag | |
Chairman of the Board of Directors and | ||
Chief Executive Officer |
- 66 -
- 67 -
- 68 -
- 69 -
- 70 -
- 71 -
- 72 -
- 73 -
- 74 -
- 75 -
ARRANGEMENT RESOLUTIONS
OF ASPREVA PHARMACEUTICALS CORPORATION (the “Company”)
A-1
RIGHTS PLAN WAIVER RESOLUTION
OF ASPREVA PHARMACEUTICALS CORPORATION (the “Company”)
B-1
COMBINATION AGREEMENT
C-1
Page | ||||
ARTICLE 1 INTERPRETATION | C-4 | |||
1.1 Definitions | C-4 | |||
1.2 Interpretation Not Affected by Headings, etc. | C-11 | |||
1.3 Currency | C-11 | |||
1.4 Number and Gender | C-11 | |||
1.5 Disclosure Letter | C-11 | |||
1.6 Date For Any Action | C-12 | |||
1.7 Accounting Principles | C-12 | |||
1.8 Legal, Valid and Binding | C-12 | |||
1.9 Schedules | C-12 | |||
ARTICLE 2 THE ARRANGEMENT | C-12 | |||
2.1 Implementation Steps by the Company | C-12 | |||
2.2 Implementation Steps by Acquisitionco and Parent | C-13 | |||
2.3 Interim Order | C-13 | |||
2.4 Plan of Arrangement | C-14 | |||
2.5 Circular | C-14 | |||
2.6 Preparation of Filings | C-14 | |||
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY | C-15 | |||
3.1 Organization and Standing | C-15 | |||
3.2 Capitalization | C-15 | |||
3.3 Authority and No Conflicts | C-16 | |||
3.4 Consents; Approvals | C-17 | |||
3.5 Reports; Financial Statements | C-17 | |||
3.6 Absence of Certain Changes or Events | C-18 | |||
3.7 Material Contracts | C-18 | |||
3.8 Roche Agreement | C-18 | |||
3.9 Absence of Litigation | C-18 | |||
3.10 Environmental Matters | C-18 | |||
3.11 Tax Matters | C-19 | |||
3.12 Employee Benefits | C-19 | |||
3.13 Employment Matters | C-20 | |||
3.14 Severance and Employment Agreements | C-20 | |||
3.15 Compliance with Laws; Permits | C-20 | |||
3.16 Intellectual Property | C-21 | |||
3.17 Specified Pharmaceutical Product | C-21 | |||
3.18 Opinions of Financial Advisors | C-22 | |||
3.19 Brokerage and Finders’ Fees | C-22 | |||
3.20 Rights Plan | C-22 | |||
3.21 Insurance | C-22 | |||
3.22 Disclaimer of Additional Representations and Warranties | C-22 | |||
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF ACQUISITIONCO AND PARENT | C-23 | |||
4.1 Corporate Organization | C-23 | |||
4.2 Authority and No Conflicts | C-23 | |||
4.3 Consents; Approvals | C-24 |
C-2
Page | ||||
4.4 Parent Approval | C-24 | |||
4.5 Acquisitionco Approval | C-24 | |||
4.6 No Vote Required | C-24 | |||
4.7 Availability of Funding | C-24 | |||
ARTICLE 5 COVENANTS AND AGREEMENTS | C-25 | |||
5.1 Covenants of the Company Regarding the Conduct of Business | C-25 | |||
5.2 Covenants of the Company Regarding the Arrangement | C-27 | |||
5.3 Covenants of Acquisitionco and Parent Regarding the Performance of their Obligations | C-28 | |||
5.4 Access to Information | C-30 | |||
5.5 Indemnification and Insurance | C-31 | |||
5.6 Employee Benefits | C-32 | |||
5.7 Covenants Regarding Non-Solicitation | C-33 | |||
5.8 Notification of Acquisition Proposal | C-34 | |||
5.9 Permitted Activities | C-35 | |||
5.10 Pre-Acquisition Reorganizations | C-35 | |||
5.11 Proxies Received | C-37 | |||
5.12 Cooperation with Financing | C-37 | |||
ARTICLE 6 CONDITIONS | C-37 | |||
6.1 Mutual Conditions | C-37 | |||
6.2 Additional Conditions to the Obligations of Acquisitionco and Parent | C-38 | |||
6.3 Additional Conditions to the Obligations of the Company | C-38 | |||
6.4 Satisfaction of Conditions | C-39 | |||
ARTICLE 7 AMENDMENT AND TERMINATION | C-39 | |||
7.1 Amendment | C-39 | |||
7.2 Termination | C-39 | |||
7.3 Effect of Termination | C-41 | |||
7.4 Notice of Unfulfilled Conditions | C-41 | |||
7.5 Termination Fee | C-41 | |||
7.6 Effect of Termination Fee Payment | C-42 | |||
ARTICLE 8 GENERAL | C-42 | |||
8.1 Investigation | C-42 | |||
8.2 Non-Survival of Representations and Warranties, Covenants and Agreements | C-42 | |||
8.3 Notices | C-42 | |||
8.4 Assignment | C-44 | |||
8.5 Binding Effect | C-44 | |||
8.6 Third Party Rights | C-44 | |||
8.7 Waiver and Modification | C-44 | |||
8.8 No Personal Liability | C-45 | |||
8.9 Further Assurances | C-45 | |||
8.10 Public Announcements | C-45 | |||
8.11 Governing Laws; Consent to Jurisdiction | C-45 | |||
8.12 Remedies and Waivers | C-45 | |||
8.13 Time of Essence | C-46 | |||
8.14 Entire Agreement | C-46 | |||
8.15 Severability | C-46 | |||
8.16 Counterparts | C-46 |
C-3
INTERPRETATION
C-4
C-5
C-6
(a) | changes or developments in international, Canadian, United States or EU political, economic, financial or market conditions, or in the economy, political or market conditions or currency exchange rates in Canada, the United States or the EU; | ||
(b) | changes or developments resulting from any natural disaster, any act of sabotage or terrorism or any outbreak of hostilities or war, or any escalation of any such natural disaster or acts of sabotage or terrorism or hostilities or war; | ||
(c) | conditions generally affecting the pharmaceutical or biotechnology sector or companies in that sector (except to the extent such conditions have a disproportionately large adverse effect on the Company and the Subsidiaries by comparison to the adverse effect such conditions have generally on the other companies in that sector, it being understood that, in determining whether there has been or would be a Material Adverse Effect on the Company, such disproportionately large adverse effect may be taken into account only to the limited extent that it exceeds the adverse effect such conditions have generally on the other companies in that sector); | ||
(d) | conditions generally affecting companies in the U.S., Canada or the EU involved in the development or marketing of pharmaceutical products used or useful in the treatment of diseases requiring immuno-suppression (except to the extent such conditions have a disproportionately large adverse effect on the Company and the Subsidiaries by comparison to the adverse effect such |
C-7
conditions have generally on the other companies involved in the development or marketing of such products, it being understood that, in determining whether there has been or would be a Material Adverse Effect on the Company, such disproportionately large adverse effect may be taken into account only to the limited extent that it exceeds the adverse effect such conditions have generally on the other companies involved in the development or marketing of such products); | |||
(e) | the introduction, commercial success, lack of commercial success, side effects or pre-clinical or clinical trial results (including adverse events) of any product or product candidate (of a person other than the Company and the Subsidiaries) similar to or potentially competitive with the Specified Pharmaceutical Product; | ||
(f) | the payment of any amounts due to, or the provision of any other benefits to, any officers or employees under employment contracts, non-competition agreements, employee benefit plans, severance arrangements or other arrangements in existence as of the date of this Agreement and disclosed in the Disclosure Letter; | ||
(g) | any breach by Parent of this Agreement or the Confidentiality Agreement; | ||
(h) | the announcement of the execution of this Agreement, the pendency of the transactions contemplated hereby, the performance of any obligation hereunder or the completion of any of the transactions contemplated hereby, including any Pre-Acquisition Reorganization (including any litigation or impact on the relationship of the Company or any of the Subsidiaries with employees, customers, suppliers, partners, service providers or creditors); | ||
(i) | any event, occurrence, development or circumstance disclosed in the Disclosure Letter; | ||
(j) | the taking of any action, or any failure to act, contemplated or permitted by this Agreement or consented to by Parent or Acquisitionco; | ||
(k) | changes in GAAP or applicable Laws or interpretations thereof; | ||
(l) | failure to meet any published or other revenue or earnings estimates or projections of the Company, or a decline in the market price or volume of trading of the Common Shares on the TSX or Nasdaq (in and of itself),provided, however,that notwithstanding the foregoing, any adverse effect on the business, operations or financial condition of the Company and the Subsidiaries that has resulted in such failure or such decline may be taken into account in determining whether there has been a Material Adverse Effect on the Company; or | ||
(m) | any request or requirement by any Governmental Entity that any of Parent, Acquisitionco, the Company or any of the Subsidiaries enter into any agreement or arrangement, or take any action, as a condition or prerequisite to the granting of any of the Appropriate Regulatory Approvals. |
C-8
C-9
C-10
C-11
Schedule B — Arrangement Resolution
Schedule C — Rights Plan Waiver Resolution
Schedule D — Form of Plan of Arrangement
Schedule E — Rights Plan Amending Agreement
Schedule F — Form of Support Agreement
THE ARRANGEMENT
and officers of the Company with their fiduciary duties, the Company shall:
(a) | as soon as reasonably practicable after the date of this Agreement, apply under Section 291 of the BCBCA for the Interim Order, and thereafter proceed with and use commercially reasonable efforts to seek the Interim Order; |
C-12
(b) | in accordance with the Interim Order, lawfully convene and use commercially reasonable efforts to hold the Meeting as soon as reasonably practicable thereafter; | ||
(c) | subject to obtaining the approvals as are required by the Interim Order, as soon as reasonably practicable after the Meeting, proceed with and use commercially reasonable efforts to pursue the application to the Court for the Final Order; | ||
(d) | subject to obtaining the Final Order and the satisfaction or waiver (subject to applicable Laws) of the other conditions (excluding conditions that by their terms cannot be satisfied until the Effective Date, but subject to the satisfaction or, when permitted, waiver of those conditions as of the Effective Date) set forth in Article 6, as soon as reasonably practicable thereafter, use commercially reasonable efforts to take all steps and actions, including, if applicable, making all necessary filings with Governmental Entities, to give effect to the Arrangement and carry out the terms of the Plan of Arrangement applicable to it prior to the Termination Date; and | ||
(e) | provide Acquisitionco and its counsel reasonable opportunity to review and comment on drafts of all material to be filed by the Company with the Court in connection with the Arrangement, including the draft Circular and, if applicable, drafts of any supplement or amendment thereto, and provide counsel to Acquisitionco on a timely basis with copies of any notice of appearance and evidence served on the Company or its counsel in respect of the application for the Interim Order and the Final Order or any appeal therefrom and of any notice received by the Company indicating any intention to oppose the granting of the Interim Order or the Final Order or to appeal the Interim Order or the Final Order. |
(a) | for the class of persons to whom notice is to be provided in respect of the Arrangement and the Meeting and for the manner in which such notice is to be provided; | ||
(b) | that, subject to the approval of the Court, the requisite approval of the Arrangement Resolution will be 66 2/3% of the votes cast on the Arrangement Resolution by Securityholders present in person or by proxy at the Meeting with holders of Common Shares and holders of Options voting together (with each holder of Common Shares being entitled to one vote for each Common Share held and each holder of Options being entitled to one vote for each Common Share subject to the Options held by such holder that such holder would be entitled to acquire if such holder exercised all Options held by such holder, without reference to any vesting provisions or exercise price) provided that as part of such approval the Arrangement Resolution is approved by 66 2/3% of the votes cast on the Arrangement Resolution by holders of Common Shares present in person or by proxy at the Meeting; | ||
(c) | for the grant of the Dissent Rights; |
C-13
(d) | for the notice requirements with respect to the presentation of the application to the Court for the Final Order; and | ||
(e) | that in all other respects, the terms, restrictions and conditions of the constating documents of the Company shall apply in respect of the Meeting. |
(a) | Subject to the terms and conditions of this Agreement and in accordance with the Arrangement, each holder of Options, whether vested or unvested, shall be entitled to receive an amount equal to the Option Consideration for each such Option held, net of any applicable withholding and other Taxes. | ||
(b) | Subject to the terms and conditions of this Agreement, and in accordance with the Arrangement, each holder of Common Shares (other than any Dissenting Shares) shall be entitled to receive $26.00 (the “Purchase Price”) for each Common Share held, subject to any adjustment made in accordance with Section 5.1(c). | ||
(c) | From and after the Effective Time, the Plan of Arrangement shall have all of the effects provided by applicable Laws, including the BCBCA and the Company, Acquisitionco and Parent will be bound by the provisions of the Plan of Arrangement as provided therein. Acquisitionco will make, and Parent will cause Acquisitionco to make, arrangements for all payments required to be made by Acquisitionco as contemplated pursuant to the Plan of Arrangement to be made at the time of completion of the transactions contemplated by the Plan of Arrangement. The closing of the transactions contemplated hereby shall take place at the offices of McCarthy Tétrault LLP located at Pacific Centre, Suite 1300, 777 Dunsmuir Street, Vancouver, BC, V7Y 1K2, at the Effective Time (or such other time as may be agreed to by Acquisitionco and the Company). |
(a) | Acquisitionco, Parent and the Company shall cooperate in: |
(i) | the preparation of any application for the orders and any other documents reasonably determined by Acquisitionco and the Company to be necessary to discharge their respective obligations under United States and Canadian federal, provincial, territorial or state securities Laws in connection with the Arrangement and the other transactions contemplated hereby; and | ||
(ii) | the taking of all such action as may be required under the BCBCA in connection with the transactions contemplated by this Agreement and the Arrangement. |
C-14
(b) | Each of Acquisitionco and Parent shall promptly furnish to the Company all information concerning Acquisitionco and Parent and their respective affiliates and securityholders as may be required for the effectuation of the actions described in Section 2.5 and the foregoing provisions of this Section 2.6, and each of them covenants that no information furnished by it in connection with such actions or otherwise in connection with the consummation of the Arrangement and the other transactions contemplated by this Agreement shall contain any misrepresentation. | ||
(c) | Each of Acquisitionco and Parent shall promptly notify the Company if at any time before or after the Effective Time it becomes aware that the Circular contains any misrepresentation or otherwise requires an amendment or supplement to the Circular or any related application and promptly deliver written notice to the Company setting out full particulars thereof. In any such event, Acquisitionco and Parent shall cooperate with the Company in the preparation of any required supplement or amendment to the Circular or such other document, as the case may be. | ||
(d) | The Company shall use commercially reasonable efforts to cause the Circular to comply with all applicable Laws and, without limiting the generality of the foregoing, to ensure that the Circular does not contain any misrepresentation (other than with respect to any information relating to and provided by or on behalf of Parent or Acquisitionco). Without limiting the generality of the foregoing, the Company shall ensure that the Circular complies in all material respects with National Instrument 51-102 “Continuous Disclosure Requirements” and Form 51-102F5 thereunder adopted by the Canadian Securities Administrators. |
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
(a) | Each of the Company and the Subsidiaries has been duly organized or formed and is validly existing and, to the extent such concept is legally recognized, in good standing (or analogous concept) under the Laws of its jurisdiction of incorporation, organization or formation, as the case may be, with full corporate or legal power and authority to conduct its businesses as currently conducted except where the failure of a Subsidiary to conduct its business would not have a Material Adverse Effect on the Company. Each of the Company and the Subsidiaries is duly qualified to do business in each jurisdiction in which the nature of the business conducted by it requires it to so qualify, except where, the failure to be so qualified would not have a Material Adverse Effect on the Company. | ||
(b) | The Company has heretofore made available to Acquisitionco or Acquisitionco’s legal or financial advisor, copies of its constating documents as well as the constating documents of each of the Subsidiaries, in each case as in effect on the date of this Agreement. |
(a) | The authorized share structure of the Company consists of an unlimited number of Common Shares and an unlimited number of Preferred Shares, 12,677,192 of which consist of Preferred Shares, Series A. As of the close of business on September 30, 2007, (i) 35,213,511 Common Shares were issued and outstanding, (ii) no Preferred Shares were issued and outstanding, and (iii) Options permitting the holders thereof to purchase 2,351,977 Common Shares in the aggregate were outstanding under the Stock Option Plan. |
C-15
(b) | All of the outstanding Common Shares have been duly authorized and are validly issued and fully paid and non-assessable. All of the outstanding shares of the Subsidiaries which are held, directly or indirectly, by the Company have been duly authorized and are validly issued, fully paid and non-assessable. | ||
(c) | Except as described in Section 3.2(a) and as contemplated by the Rights Plan, as of the date of this Agreement, there are no outstanding options or other rights issued by the Company or the Subsidiaries to acquire, nor are there outstanding any securities or obligations of any kind of the Company or any of the Subsidiaries which are convertible into or exercisable or exchangeable for, any share capital of the Company or the Subsidiaries. |
(a) | The Company has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder, subject to the approvals of the Securityholders and the Court as provided in this Agreement. The execution and delivery of this Agreement by the Company has been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement, the Rights Plan Waiver Resolution and the Arrangement other than, with respect to the Rights Plan Waiver Resolution, approval of the holders of the Common Shares and, with respect to the completion of the Arrangement, the approval of the Securityholders and the Court and the filing of such corporate documents under the BCBCA as are provided for in this Agreement. | ||
(b) | This Agreement has been duly and validly executed and delivered by the Company and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms. | ||
(c) | The board of directors of the Company at a meeting duly called and held has determined by the unanimous approval of all directors voting (i) that the Plan of Arrangement and the Rights Plan Waiver are fair to the holders of Common Shares and are in the best interests of the Company, (ii) to recommend that the holders of Common Shares vote in favour of the Arrangement Resolution and the Rights Plan Waiver Resolution, and (iii) to extend, effective from the time this Agreement is executed, the “Separation Time” (as defined in the Rights Plan) as it relates to this Agreement to a time which is the earlier of the Effective Time and the date upon which this Agreement is terminated in accordance with the terms of this Agreement. | ||
(d) | Except for violations, conflicts or breaches that would not have a Material Adverse Effect on the Company, neither the execution and delivery of this Agreement by the Company nor the performance by it of its obligations hereunder, shall: |
(i) | conflict with, or violate any provision of, the constating documents of the Company or any of the Subsidiaries; | ||
(ii) | subject to the consents, approvals, orders, authorizations, registrations, declarations or filings referred to in Section 3.4 being obtained or made, as the case may be, violate or breach any Laws applicable to the Company or any of the Subsidiaries; or | ||
(iii) | subject to the consents, approvals, orders, authorizations, registrations, declarations or filings referred to in Section 3.4 being obtained or made, as the case may be, violate or conflict with or constitute a default under a Material Contract (or an event that with the giving of notice, passage of time, or both would constitute such a default). |
C-16
(a) | Since March 3, 2005, the Company and the Subsidiaries have timely filed (i) all forms, reports, schedules, statements and other documents required to be filed under applicable Canadian and United States securities Laws during such periods and (ii) all periodic and current reports required to be filed under the Exchange Act during such periods (the documents referred to in (i) and (ii) are collectively referred to as the “SRA Reports”). As of their respective filing dates or the filing dates of amendments prior to the date of this Agreement, each of the SRA Reports complied in all material respects with applicable Law, including Canadian securities legislation, the U.S. Securities Act of 1933, as amended, the Exchange Act and the Sarbanes-Oxley Act of 2002 (including its rules and regulations, “SOX”), and each of the SRA Reports and certifications attached thereto pursuant to Exchange Act Rule 13a-14(a) and 13a-14(b) as of their respective dates did not contain any material misrepresentation. The Company has not filed any confidential material change report with any Canadian securities regulatory authority or any stock exchange that at the date of this Agreement remains confidential. None of the Subsidiaries of the Company are, or have at any time since March 3, 2005 been, subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act. | ||
(b) | The consolidated financial statements (including, in each case, any related notes thereto) contained in the SRA Reports fairly present, in all material respects, the consolidated financial position and results of operations and cash flows of the Company and the Subsidiaries on a consolidated basis as of the respective dates thereof and for the respective periods covered thereby in accordance with GAAP applied on a consistent basis, except that the unaudited financial statements contained in such SRA Reports may not contain footnotes and are subject to year-end adjustments none of which individually or in the aggregate were, and with respect to SRA reports filed in 2007 are not expected to be, material. | ||
(c) | Since March 3, 2005, (i) neither the Company nor any of the Subsidiaries, nor any director or executive officer of the Company or any of the Subsidiaries has, and, to the knowledge of the Company, no other officer, employee of the Company or any of the Subsidiaries has, received any material complaint, allegation, assertion or claim, in writing (or, to the knowledge of the Company, orally) regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of the Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that the Company or any of the Subsidiaries has engaged in questionable accounting practices, and (ii) no attorney representing the Company or any of the Subsidiaries, whether or not employed by the Company or any of the Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the board of directors of the Company or any committee thereof or to any director or officer of the Company. |
C-17
(d) | Since January 1, 2007, there has been no change by the Company or the Subsidiaries in their accounting policies, methods, practices or principles that is material to the consolidated financial statements of the Company, except as required by GAAP. | ||
(e) | Neither the Company nor any of the Subsidiaries has any liabilities of the type required to be disclosed in the liabilities column of a balance sheet prepared in accordance with GAAP, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the SRA Reports; (ii) liabilities incurred in the ordinary course of business consistent with past practice; and (iii) liabilities that have not had, individually or in the aggregate, a Material Adverse Effect on the Company. |
C-18
(a) | All material Tax Returns required by applicable Laws to be filed with any Governmental Entity by, or on behalf of, the Company or any of the Subsidiaries have been filed when due in accordance with all applicable Laws (taking into account any applicable extensions) and all such material Tax Returns are true and complete in all material respects. The Company and each of the Subsidiaries has (i) paid (or has had paid on its behalf) or has collected, withheld and remitted to the appropriate Governmental Entity all material Taxes due and payable on a timely basis, other than those Taxes being contested in good faith, and (ii) has established (or has had established on its behalf and for its sole benefit and recourse) in accordance with GAAP an adequate accrual for all material Taxes, whether or not due and whether or not shown as being due on any Tax Return, through the end of the last period for which the Company and the Subsidiaries ordinarily record items on their respective books. The Company is a taxable Canadian corporation as defined in the Tax Act. | ||
(b) | (i) Neither the Company nor any Subsidiary has received any written notification that any issue involving an amount of Taxes material to the Company on a consolidated basis has been raised (and is currently pending) by the Canada Revenue Agency, the United States Internal Revenue Service or any other taxing authority, including, without limitation, any sales tax authority (a “Taxing Authority”), in connection with any of the Tax Returns filed or required to be filed by the Company or a Subsidiary, (A) no waivers of statutes of limitations or objections to any assessments or reassessments involving an amount of Taxes material to the Company on a consolidated basis have been given, filed or requested with respect to the Company or any Subsidiary, (B) the Company has not received any reassessments with respect to any liability of the Company or a Subsidiary for Canadian federal and provincial income and capital taxes for any outstanding fiscal periods, (C) to the knowledge of the Company, no claim has ever been made in writing by any Taxing Authority in a jurisdiction where neither the Company nor any of its Subsidiaries files Tax Returns that the Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction, (D) there are no Tax Liens on any assets of the Company or any of its Subsidiaries except for Taxes not yet due and payable, Taxes being contested in good faith, and those which would not result in a Material Adverse Effect on the Company, (E) neither the Company nor any of its Subsidiaries is a party to any Tax sharing or other similar agreement or indemnification agreement of any nature with any other person (other than in the agreements among the Company and any of its Subsidiaries) pursuant to which the Company or any of its Subsidiaries has or could have any material liabilities in respect of Taxes, (F) the Company has not made an election under section 897(i) of the United States Internal Revenue Code of 1986, as amended (the “Code”) to be treated as a domestic corporation for purposes of sections 897, 1445 and 6039C of the Code. | ||
(c) | “Tax” and “Taxes” means, with respect to any person, all income taxes and all capital taxes, gross receipts taxes, environmental taxes, sales taxes, use taxes, value added taxes, transfer taxes, franchise taxes, license taxes, withholding or payroll taxes, stamp taxes, property taxes, windfall profits taxes, alternative or add-on minimum tax, goods and services tax, customs duties and other taxes, together with any interest and any penalties or additions to tax imposed by any taxing authority (domestic or foreign) on such person. |
(a) | Section 3.12(a) of the Disclosure Letter sets forth a list of all material non-government operated employee benefit plans maintained or contributed to by the Company or any of the Subsidiaries as of the date of this Agreement (collectively referred to as “Plans”). | ||
(b) | The Company has made available to the Parent and Acquisitionco accurate summaries of all Plans as amended as of the date of this Agreement. |
C-19
(c) | All of the Plans have been established, registered, qualified, funded, invested and administered in accordance with, and are in good standing under, all applicable Laws and the terms of such Plans. | ||
(d) | No fact or circumstance exists that could, to the knowledge of the Company, adversely affect the tax-preferred or tax exempt status of any Plan. None of the Plans enjoys any special tax status under any Laws, nor have any advance tax rulings been sought for or received on behalf of the Company in respect of the Plans. |
(a) | Neither the Company nor any of the Subsidiaries has agreed to recognize any union or other collective bargaining representative, nor has any union or other collective bargaining representative been certified as the exclusive bargaining representative of any of the Employees. To the knowledge of the Company, as of the date of this Agreement, no union organizational campaign or representation petitions are pending with respect to any of the Employees, and there is no labour strike or labour dispute, slowdown, lockout or stoppage actually pending or threatened against the Company or the Subsidiaries. | ||
(b) | Each of the Employees has at the outset of his or her employment with the Company or a Subsidiary, executed the Company’s or Subsidiary’s form of confidentiality agreement and ownership and assignment of inventions agreement and to the knowledge of the Company, is not in violation thereof. |
(a) | Neither the Company nor any Subsidiary has entered into any written agreement providing for severance or termination payments to any director, officer or employee in connection with the termination of his or her position or employment following a change in control of the Company. The details of all such payment requirements, including the amounts and a description of the circumstances in which they must be paid, are set out in the Disclosure Letter and such amounts do not and will not exceed $5 million in the aggregate. | ||
(b) | As of the date of this Agreement, the Disclosure Letter sets out a complete and accurate list of current full-time Employees, including those who are operating under an arrangement for separation. Such list includes the level, name and title of each such Employee. | ||
(c) | Neither the Company nor any Subsidiary has made any commitment to provide, or any representation in respect of, any general increase in the compensation of any Employees (including any increase in benefits pursuant to the Plans) or any increase in any compensation or bonus payable to any Employee, or to make any loan to, or to engage in any transaction with, any Employee, except in the ordinary course of business and consistent with past practice. | ||
(d) | All accruals for unpaid vacation pay, premiums for unemployment insurance, health premiums, Canadian Pension Plan premiums, accrued wages, salaries and commissions, severance pay and employee benefit plan payments have been reflected in the books and records of the Company. |
(a) | The Company and the Subsidiaries are in compliance with all applicable Laws other than non-compliance which would not have a Material Adverse Effect on the Company. | ||
(b) | Neither the Company nor any of the Subsidiaries or, to the knowledge of the Company, any of its directors, officers, agents or employees acting on behalf of the Company or any of the Subsidiaries has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, or (ii) made any unlawful payment to any government officials or |
C-20
employees or to political parties or campaigns or violated any provision of the United StatesForeign Corrupt Practices Act of 1977, as amended, in each case which would have a Material Adverse Effect on the Company. | |||
(c) | The Company and the Subsidiaries are in possession of all authorizations, licenses, permits, easements, variances, exemptions, consents, certificates, approvals and orders necessary to own, lease and operate their properties and to lawfully carry on their respective businesses as they are now being conducted (collectively, the “Permits”), except where the failure to be in possession of such Permits would not have a Material Adverse Effect on the Company. | ||
(d) | No representation or warranty is made in this Section 3.15 with respect to the Specified Pharmaceutical Product, which is covered by Section 3.17 exclusively. |
(a) | the Company and/or the Subsidiaries own, or have licensed, or have the right to employ, any material trademarks, copyrights and trade secrets necessary to enable the Company to conduct its business substantially in the manner in which its business is currently being conducted (collectively, the “Business Intellectual Property”); | ||
(b) | neither the Company nor any Subsidiary owns any patents, patent applications and provisional patent applications; | ||
(c) | neither the Company nor any Subsidiary has received notice of any claim made against the Company challenging the Company’s rights in or to the Business Intellectual Property; | ||
(d) | to the knowledge of the Company, as of the date of this Agreement, no third party is infringing upon or misappropriating the Business Intellectual Property; and | ||
(e) | as of the date of this Agreement, neither the Company nor any of the Subsidiaries has received notice from a third party that the business as presently conducted by the Company and the Subsidiaries infringes any patents, copyrights, trademarks or other intellectual property rights of a third party. |
(a) | The activities of the Company and the Subsidiaries with respect to the development, preclinical studies and clinical trials for regulatory approval and pre-market medical information communications, in connection with the Specified Pharmaceutical Product, are in material compliance with all applicable material requirements of the Drug Regulatory Laws. | ||
(b) | The preclinical studies and clinical trials conducted by or on behalf of the Company and the Subsidiaries with respect to the Specified Pharmaceutical Product, have been, and are being, conducted in material compliance with the requirements of Good Laboratory Practice, Good Clinical Practice and requirements relating to protection of human subjects contained in Title 21, Parts 50 and 56 of the United States Code of Federal Regulations. | ||
(c) | Since the date of the Roche Agreement the Specified Pharmaceutical Product has not been recalled, suspended or discontinued by Roche, by any of Roche’s subsidiaries or by any licensee, distributor or marketer of the Specified Pharmaceutical Product as a result of any action by the FDA or, to the knowledge of the Company, any action by any other similar Governmental Entity having jurisdiction in the United States, the United Kingdom, Italy, Germany, France or China. |
C-21
(d) | No manufacturing operations of the Specified Pharmaceutical Product have been conducted by the Company. To the knowledge of the Company, the manufacture of the Specified Pharmaceutical Product by or on behalf of Roche has been conducted in material compliance with the FDA’s current Good Manufacturing Practice regulations for drug products and all applicable similar foreign Laws. | ||
(e) | Neither the Company nor any of the Subsidiaries has committed any act, made any statement or failed to make any statement that would provide a valid basis for the FDA to invoke its policy with respect to “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any amendments thereto. Neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company, any officer, key employee of the Company, has been convicted of any crime or engaged in any conduct that has resulted, or would reasonably be expected to result, in debarment under 21 U.S.C. Section 335a or any similar state law or regulation under 42 U.S.C. Section 1320a-7. | ||
(f) | The Company and the Subsidiaries have in their possession copies of all material documentation filed in connection with filings made by the Company and the Subsidiaries in all jurisdictions for approvals to conduct clinical trials. |
C-22
REPRESENTATIONS AND WARRANTIES OF ACQUISITIONCO AND PARENT
(a) | Each of Acquisitionco and Parent has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement by Acquisitionco and Parent has been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of either Acquisitionco or Parent are necessary to authorize this Agreement. | ||
(b) | This Agreement has been duly executed and delivered by each of Acquisitionco and Parent and constitutes a legal, valid and binding obligation of each of Acquisitionco and Parent, enforceable against each of them in accordance with its terms. | ||
(c) | Neither the execution and delivery of this Agreement and all other documents related to the transactions contemplated hereunder by Acquisitionco and Parent nor the performance by each of them of their obligations hereunder and thereunder and the completion of the transactions contemplated hereby, shall: |
(i) | conflict with, or violate any provision of, the constating documents of Acquisitionco or Parent; | ||
(ii) | subject to the consents, approvals, orders, authorizations, registrations, declarations or filings referred to in Section 4.3 being obtained or made, violate or breach any Laws applicable to Acquisitionco or Parent; or | ||
(iii) | subject to the consents, approvals, orders, authorizations, registrations, declarations or filings referred to in Section 4.3 being obtained or made, violate or conflict with or result in the breach of, or constitute a default (or an event that with the giving of notice, the passage of time, or both would constitute a default) under, or entitle any party (with the giving of notice, the passage of time or both) to terminate, accelerate, modify or call any obligations or rights under any agreement or other instrument to which either Acquisitionco or Parent is a party or by which either Acquisitionco or Parent is bound or subject; |
C-23
(a) | to authorize Parent and its subsidiaries (including Acquisitionco) to consummate the transactions contemplated by this Agreement on the terms set forth herein and in the Plan of Arrangement; and | ||
(b) | to authorize Parent to execute and deliver this Agreement. |
(a) | to authorize Acquisitionco and its subsidiaries to consummate the transactions contemplated by this Agreement on the terms set forth herein and in the Plan of Arrangement; and | ||
(b) | to authorize Acquisitionco to execute and deliver this Agreement. |
C-24
COVENANTS AND AGREEMENTS
(a) | each of the Company and the Subsidiaries shall, for the purpose of endeavouring to maintain the Company’s goodwill and ongoing business, use commercially reasonable efforts to (i) carry on its businesses in the ordinary course consistent with past practice, (ii) keep available the services of its current officers and Employees, and (iii) maintain good relations with customers and suppliers; | ||
(b) | the Company shall not, nor shall it permit any of the Subsidiaries to, (i) split, combine, subdivide or reclassify any of its share capital or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its share capital; (ii) issue, reserve, set aside, repurchase, redeem or otherwise acquire any shares of its share capital or any securities or obligations convertible into, exercisable or exchangeable for, or any rights, warrants, calls, subscriptions or options to acquire, shares of its share capital or authorize any of the foregoing; or (iii) authorize any of the foregoing, in each case other than pursuant to (A) Options issued prior to the date of this Agreement, (B) Options issued to new employees of the Company and the Subsidiaries after the date of this Agreement in the ordinary course of business not to exceed Options for 250,000 Common Shares, or (C) in compliance with the terms of this Agreement; | ||
(c) | the Company shall not, nor shall it permit any of the Subsidiaries to, declare, set aside for payment or pay any dividend on or make any other distribution in respect of any Common Shares unless the Consideration payable to each holder of Common Shares shall be reduced by the amount of such dividend or distribution paid in respect of those Common Shares; | ||
(d) | the Company shall not, nor shall it permit any of the Subsidiaries to, amend its constating documents; | ||
(e) | the Company shall not, nor shall it permit any of the Subsidiaries to, sell, pledge, encumber, lease (whether such lease is an operating or capital lease or a sale and lease back of assets) or otherwise dispose of any material assets other than (e) in the ordinary course of business, (f) pursuant to any material Contract existing at the date of this Agreement, (g) as security for borrowings permitted by Section 5.1(i) or (h) pursuant to plans or proposals disclosed in the Disclosure Letter; |
C-25
(f) | the Company shall not, nor shall it permit any of the Subsidiaries to, (i) incur any material indebtedness for borrowed money other than (A) short-term borrowings incurred in the ordinary course of business not to exceed $1 million, and (B) additional borrowings under credit lines existing as of the date of this Agreement incurred in the ordinary course of business and not to exceed $1 million, or pursuant to any modifications, renewals or replacements of any such credit lines, and (j) enter into any material operating lease or create any Liens, other than Permitted Liens, on any material property of the Company in connection with any indebtedness for borrowed money (other than any indebtedness permitted pursuant to this Section 5.1(i)); | ||
(g) | the Company shall not, nor shall it permit any of the Subsidiaries to, (k) terminate, amend or modify the Roche Agreement, except as required by the terms of the Roche Agreement or applicable Laws or (l) materially amend or prematurely terminate any Material Contract except in the ordinary course of business or where failure to amend or terminate a Material Contract would, in the reasonable judgment of the Company, have an adverse impact on the Company or any Subsidiary of the Company; | ||
(h) | the Company shall not, nor shall the Company permit any of the Subsidiaries to authorize, make or commit to make any capital expenditures (including capital lease obligations) in excess of $1 million individually or in the aggregate; | ||
(i) | other than in the ordinary course of business, the Company shall not, nor shall it permit any of its Subsidiaries to sell, pledge, encumber, lease (whether such lease is a sale and lease back of assets) or otherwise dispose of any assets; | ||
(j) | increase in any material manner the compensation of any of its directors, officers or employees or enter into, establish or amend any Plan for the benefit of any director or employee of the Company, other than: (m) as required pursuant to applicable Law, this Agreement, the Arrangement or the terms of contracts in effect as of the date of this Agreement; and (n) increases in salaries, wages and benefits effected in the ordinary course of business; | ||
(k) | the Company shall not, nor shall it permit any of the Subsidiaries to, make any material changes to the existing accounting practices, methods, and principles relating to the Company or any of the Subsidiaries, except as required by applicable Laws or GAAP; | ||
(l) | except as required by applicable Law or in the ordinary course of business, the Company shall not, nor shall it permit any of its Subsidiaries to, (o) make, change or rescind any material tax election, (p) take any action, or omit to take any action, in either case inconsistent with past practice, relating to the filing of any Tax Return or the payment of any Tax, (q) settle any material Tax claim or assessment in excess of $1 million, (r) surrender any right or claim to a Tax refund, or (s) materially amend any of its transfer pricing policies; and | ||
(m) | the Company shall promptly, after the matter in question comes to the attention of an individual to whom the definition of knowledge of the Company applies, advise Acquisitionco in writing: |
(i) | of any event, condition or circumstance that would be reasonably expected to cause any representation or warranty of the Company contained in this Agreement to be materially untrue at the Effective Time (or, in the case of any representation or warranty made as of a specified date, as of such specified date), in either case such that the condition in Section 6.2(b) would not be satisfied; and | ||
(ii) | of any material breach by the Company of any covenant contained in this Agreement. |
C-26
(a) | Subject to the terms and conditions of this Agreement, the Company shall, and where applicable, shall cause the Subsidiaries to, perform all obligations required to be performed by the Company or any of the Subsidiaries under this Agreement, and do all such other acts and things as may be reasonably necessary or desirable in order to consummate and make effective, as promptly as reasonably practicable, the Arrangement contemplated in this Agreement and, without limiting the generality of the foregoing, the Company shall: |
(i) | upon approval of the Rights Plan Waiver Resolution and upon receipt of the requisite approval of the TSX, forthwith execute and deliver the Rights Plan Amending Agreement and cause such agreement to be and remain in full force and effect, unamended; | ||
(ii) | use best efforts to satisfy or cause to be satisfied as soon as reasonably practicable all the conditions precedent that are set forth in Article 6 (to the extent the same is within its control); | ||
(iii) | apply for (including preparing and filing promptly documents and submissions of information required or requested by any Governmental Entity in respect of such application) and use best efforts to obtain as promptly as practicable all Appropriate Regulatory Approvals required to be obtained by the Company or any of the Subsidiaries in order for the Company to consummate the transactions contemplated hereby and, in doing so, keep Acquisitionco fully informed as to the status of the proceedings related to obtaining such Appropriate Regulatory Approvals; | ||
(iv) | except where prohibited by Law, use best efforts to (A) cooperate in all respects with Parent (including but not limited to, providing Parent with any information requested by it), in connection with any filing, application or submission with a Governmental Entity in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Entity relating to the transactions contemplated by this Agreement, (B) promptly notify Parent of any written communication to that party from any Governmental Entity and permit Parent to review in advance any proposed communication to any of the foregoing, (C) consult with Parent prior to participating in any substantive meeting, telephone call or discussion with any Governmental Entity in respect of any filings, investigation or inquiry concerning this Agreement or the transactions contemplated hereby and provide Parent the opportunity to attend and participate in any such meeting, telephone call or discussion, and (D) furnish Parent with copies of all correspondence, filings, and written communications (or a reasonably detailed summary of any oral communications) between the Company and its representatives on the one hand, and any Governmental Entity or members of their respective staffs on the other hand, with respect to this Agreement and the transactions contemplated hereby; | ||
(v) | use best efforts to resolve such objections, if any, as may be asserted by a Governmental Entity or other person with respect to the transactions contemplated by this Agreement; | ||
(vi) | diligently defend all lawsuits or other legal, regulatory or other proceedings to which the Company is a party challenging or affecting this Agreement or the consummation of the transactions contemplated hereby; | ||
(vii) | carry out the terms of the Interim Order and the Final Order applicable to it and use commercially reasonable efforts to comply promptly with all requirements which applicable Laws may impose on the Company or the Subsidiaries with respect to the transactions contemplated hereby and by the Arrangement; |
C-27
(viii) | use best efforts to have lifted or rescinded any injunction or restraining order or other order relating to the Company which may adversely affect the ability of the parties to consummate the transactions contemplated hereby; | ||
(ix) | effect all necessary registrations, filings and submissions of information required by Governmental Entities from the Company or any of the Subsidiaries in connection with the transactions contemplated hereby; | ||
(x) | use best efforts to obtain all waivers, consents and approvals from other parties to loan agreements, leases or other contracts required to be obtained by the Company or a Subsidiary to consummate the transactions contemplated hereby which the failure to obtain would materially and adversely affect the ability of the Company or the Subsidiaries to consummate the transactions contemplated hereby; | ||
(xi) | retain a proxy solicitation firm to actively solicit from Securityholders proxies in favour of the resolutions to be put before the Meeting; and | ||
(xii) | use best efforts to cause the Meeting Date to be not later than December 21, 2007 (the “Meeting Date Deadline”);provided, however, that (A) if the board of directors of the Company determines in good faith that as a result of circumstances beyond the reasonable control of the Company (including the need to provide appropriate disclosures to Securityholders in advance of the Meeting and including the failure to obtain sufficient proxies to assure approval of the Arrangement Resolution), the Meeting cannot or should not be held on or prior to the Meeting Date Deadline, the Company may by written notice to Parent extend the Meeting Date Deadline on one or more successive occasions to a later date established by the board of directors and determined by the board of directors of the Company in good faith to be necessary or appropriate as a result of such circumstances beyond the reasonable control of the Company;provided further, that the Meeting Date Deadline may not be extended pursuant to this clause (A) to a date beyond January 22, 2008, and (B) if in the reasonable judgment of the Company, a breach of this Agreement by Parent or Acquisitionco results in a delay in the Meeting, the Meeting Date Deadline shall automatically be extended by the amount of time the Meeting has been delayed by such breach. |
(b) | The Company shall not waive the application of Section 3.1 of the Rights Plan to an Acquisition Proposal unless the Acquisition Proposal is a Superior Proposal, provided that such waiver cannot be effective if the Arrangement Resolution shall have been approved by the requisite vote of the Securityholders at the Meeting. |
(a) | Subject to the terms and conditions of this Agreement, Acquisitionco and Parent shall perform all obligations required to be performed by them under this Agreement, cooperate with the Company in connection therewith, and do all such other acts and things as may be necessary or desirable in order to consummate and make effective, as promptly as reasonably practicable, the Arrangement contemplated by this Agreement and, without limiting the generality of the foregoing, Acquisitionco and Parent shall: |
(i) | use best efforts to satisfy or cause to be satisfied as soon as reasonably practicable all conditions precedent that are set forth in Article 6 (to the extent the same is within their control); | ||
(ii) | apply for (including providing and filing promptly documents and submissions of information required or requested by any Governmental Authority in respect of such application) and use best efforts to obtain all Appropriate Regulatory Approvals required |
C-28
to be obtained by Parent or Acquisitionco or any of their affiliates in order for Parent or Acquisitionco to consummate the transactions contemplated hereby and, in doing so, to keep the Company fully informed as to the status of the proceedings related to obtaining such Appropriate Regulatory Approvals, including providing the Company with copies of all related applications and notifications, in draft form, to provide the Company an opportunity to provide its reasonable comments thereon; | |||
(iii) | except where prohibited by applicable Law, use best efforts to (A) cooperate in all respects with the Company (including providing the Company with any information requested by it, in connection with any filing, application or submission with a Governmental Entity in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Entity relating to any of the transactions contemplated by this Agreement, including any proceeding initiated by a private party), (B) promptly notify the Company of any written communication to that party from any Governmental Entity and permit the Company to review in advance any proposed communication to any of the foregoing, (C) consult with the Company prior to participating in any substantive meeting, telephone call or discussion with any Governmental Entity in respect of any filings, investigation or inquiry concerning this Agreement or the transactions contemplated hereby and provide the Company the opportunity to attend and participate in any such meeting, telephone call or discussion, and (D) furnish the Company with copies of all correspondence, filings and written communications (or a reasonably detailed summary of any oral communications) between Parent or Acquisitionco and their respective representatives on the one hand, and any Governmental Entity or members of their respective staffs on the other hand, with respect to this Agreement and the transactions contemplated hereby; | ||
(iv) | use best efforts to resolve such objections, if any, as may be asserted by a Governmental Entity or other person with respect to the transactions contemplated by this Agreement; | ||
(v) | diligently defend all lawsuits or other legal, regulatory or other proceedings to which either Parent or Acquisitionco is a party challenging or affecting this Agreement or the consummation of the transactions contemplated hereby; | ||
(vi) | carry out the terms of the Interim Order and Final Order applicable to them and comply promptly with all requirements which applicable Laws may impose on Parent or Acquisitionco with respect to the transactions contemplated hereby and by the Arrangement; | ||
(vii) | effect all necessary registrations, filings and submissions of information required by Governmental Entities from Parent or Acquisitionco or their affiliates in connection with the transactions contemplated hereby; and | ||
(viii) | use best efforts to obtain all waivers, consents and approvals required to be obtained by Parent or Acquisitionco or any affiliate of Parent or Acquisitionco to consummate the transactions contemplated hereby which the failure to obtain would materially and adversely affect the ability of Acquisitionco or Parent to consummate the transactions contemplated hereby. |
(b) | Acquisitionco and Parent shall pay all requisite filing fees and taxes thereon in relation to any filing or application in respect of any Appropriate Regulatory Approvals. | ||
(c) | Parent, as the sole shareholder of Acquisitionco, covenants and agrees to cause Acquisitionco to take all steps, to do and perform all such acts and things, to execute and deliver all such agreements, documents and other instruments, and to pay such amounts, as are necessary or desirable to cause Acquisitionco to comply with all covenants and agreements of Acquisitionco contained herein and, upon the Arrangement becoming effective, under the Plan of Arrangement, |
C-29
in accordance with the terms and conditions hereof and thereof. The agreements, covenants, representations and warranties and other obligations herein (including the representations and warranties in Article 4) which are expressed to be made by Acquisitionco and Parent or by Acquisitionco or Parent are joint and several agreements, covenants, representations and warranties and obligations. | |||
(d) | Acquisitionco and Parent shall, and Parent shall cause Acquisitionco to, make arrangements to borrow or otherwise be in possession of, prior to the Effective Date, all funds required to be provided by Acquisitionco to the Depositary (as defined in the Plan of Arrangement). In connection therewith: |
(i) | Acquisitionco and Parent shall, and Parent shall cause Acquisitionco to, use its best efforts to negotiate and enter into the Definitive Financing Agreements with such third parties (it being understood that such Definitive Financing Agreements shall contain no funding or financing conditions that are broader or more onerous than the conditions set forth in Sections 6.1 and 6.2 and shall otherwise be fully consistent with this Agreement); | ||
(ii) | without limiting the effect of the last two sentences of this Section 5.3, Acquisitionco and Parent shall, and Parent shall cause Acquisitionco to, use best efforts to satisfy all conditions in such Definitive Financing Agreements; | ||
(iii) | neither Acquisitionco nor Parent shall enter into, or permit the entering into, of any material amendment to any Commitment Letter or Definitive Financing Agreement, nor shall Acquisitionco or Parent waive any material provision thereof or right thereunder, or acquiesce in any action or decision of any other party thereto that is adverse to the interests of Acquisitionco, Parent, the Company or any of the Securityholders; | ||
(iv) | in the event any portion of the financing referred to in clause (i) becomes unavailable, Acquisitionco and Parent shall, and Parent shall cause Acquisitionco to, use its best efforts to arrange to obtain any such portion from alternative sources as promptly as practicable; | ||
(v) | Parent will agree to guarantee Acquisitionco’s obligations under the financing referred to in clause (i) and shall use its best efforts to negotiate Definitive Financing Agreements with third parties in connection with such guarantee; and | ||
(vi) | Acquisitionco and Parent shall, prior to October 31, 2007, request in writing in accordance with Section 3.2 of the Mandate Letter that the parties to the Mandate Letter enter into the “Facility Agreement” contemplated thereby not later than October 31, 2007. |
C-30
(a) | Acquisitionco and Parent and the Company agree that all rights to indemnification for acts or omissions occurring prior to or at the Effective Time existing as of the date of this Agreement in favour of the present and former directors and officers of the Company or of any of the Subsidiaries and present and former directors and officers of the Company or of any of the Subsidiaries serving or who have served at the request of the Company or any Subsidiaries as a director, officer, employee, agent or representative of another corporation, partnership, joint venture, trust, employee benefit plan or other entity or enterprise (each such present or former director or officer of the Company or of any Subsidiary being herein referred to as an “Indemnified Party” and such persons collectively being referred to as the “Indemnified Parties”) as provided in its constating documents or in written contracts in effect on the date of this Agreement and required to be set forth in the Disclosure Schedule (including all provisions relating to advances for the funding of costs and expenses in connection with indemnification arrangements) shall survive the completion of the Arrangement and shall continue in full force and effect and without modification until the sixth anniversary of the date of this Agreement, and Parent and Acquisitionco will cause the Company and any successor to the Company, and the Subsidiaries (including any successors thereto), to honour such rights of indemnification and indemnify the Indemnified Parties pursuant thereto, with respect to actions or omissions of the Indemnified Parties occurring at or prior to the Effective Time. | ||
(b) | Provided the Arrangement becomes effective, for a period of not less than six years after the Effective Date the Company will, and Parent and Acquisitionco will cause the Company and any successor to the Company to, continue and maintain in effect policies of directors’ and officers’ liability insurance, without any gaps, lapses or reduction in scope or coverage, for the benefit of the Indemnified Parties in such amounts, and with such deductibles, retained amounts, coverages and exclusions and otherwise on terms and conditions no less advantageous or favourable to the Indemnified Parties than such insurance maintained by the Company immediately prior to the Effective Time and providing protection in respect of claims arising from or related to facts or events which occurred on or prior to the Effective Date, provided that in no event shall the Company be required to spend in one year as premiums for such insurance more than 250% of the annual amount currently paid by the Company. Notwithstanding any other provision of this Agreement, prior to the Effective Time the Company may, in the alternative, at its option, purchase prepaid non-cancellable run-off directors’ and officers’ liability insurance providing coverage (on terms and conditions as or more favourable to the Indemnified Parties) for a period of up to six years from the Effective Date with respect to claims arising from or related to facts or events which occur on or prior to the Effective Date. The cost of purchasing such directors and officers’ liability insurance will not exceed 350% of the total amount paid in annual premiums by the Company for all director and officers’ liability insurance at the last renewal of the directors and officers’ liability insurance that occurred before the Effective Date. | ||
(c) | In the event the Company or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such |
C-31
consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in such case, proper provision shall be made so that such successors and assigns of the Company or, at Acquisitionco’s option, Acquisitionco, shall assume the obligations set forth in this Section 5.5. | |||
(d) | Acquisitionco will ensure that the constating documents of the Company and any successor to the Company and the constating documents of the Subsidiaries (or any successor to any such subsidiary), will contain provisions with respect to indemnification now set forth in the constating documents of the Company and the subsidiaries of the Company (or equivalent provisions), as the case may be, such that all rights to indemnification existing in favour of the Indemnified Parties as provided in the constating documents of the Company and of the subsidiaries of the Company, or equivalent provisions, will survive and continue in full force and effect and without modification, with respect to actions or omissions of the Indemnified Parties occurring prior to the Effective Time in accordance with the terms of such constating documents, or equivalent provisions, as at the Effective Time. |
(a) | Parent and Acquisitionco covenant and agree, and after the Effective Time they will cause the Company and any successor to the Company, to honour, perform or cause to be performed, and comply with the terms of all existing employment, retention, deferred compensation, incentive, termination, severance and change of control agreements and arrangements of the Company and all arrangements for the benefit of the officers or Employees of the Company party thereto, and will make available to the Company or any successor to the Company any financing required in order to make payment of amounts payable under any employment retention, deferred compensation, incentive, termination, severance and change of control agreements and arrangements. Parent and Acquisitionco also covenant and agree, and after the Effective Time Parent and Acquisitionco will cause the Company and any successor to the Company, for a period of not less than two years after the Effective Date, to deal with any Continuing Employees whose employment may be terminated after the Effective Date, in a fair and equitable manner consistent with applicable Laws and the existing termination policies of the Company and the Subsidiaries as of the date of this Agreement. | ||
(b) | Parent and Acquisitionco covenant and agree, and after the Effective Time Parent and Acquisitionco will cause the Company and any successor to the Company (including any successor company) to honour and comply with all obligations of the Company under the Plans, as the same may be amended or modified as permitted hereunder (it being acknowledged by Parent and Acquisitionco that the Arrangement shall constitute a “Change in Control” under the agreements set out in Section 3.4 of the Disclosure Letter), and that following the Arrangement becoming effective, in circumstances specified in the Plans (for example a director of the Company ceasing to be a director, or a key executive of the Company ceasing to be an Employee of the Company or a Subsidiary) the Company will be required to pay amounts calculated under these Plans and, to the extent necessary, following the Effective Time, Acquisitionco and Parent shall make available to the Company or any successor to the Company (including any successor company) any financing required in order to make payment of amounts payable under these Plans. | ||
(c) | From and after the Effective Time, Parent and Acquisitionco shall cause the Company to permit all Continuing Employees to participate in the benefit plans, programs, and arrangements of Parent or its subsidiaries (the “Parent Plans”) to the same extent as similarly situated employees of Parent or its subsidiaries. Continuing Employees shall be given credit under the Parent Plans for all years of service with the Company prior to the Effective Time for purposes of eligibility, vesting in respect of matching contributions under Parent Plans and the determination of rate of vacation accrual. | ||
(d) | From and after the Effective Time, Acquisitionco shall use commercially reasonable efforts to (i) cause any pre-existing conditions or limitations and eligibility waiting periods under any Parent |
C-32
Plan that is a group health plan to be waived with respect to the Continuing Employees and their eligible dependents to the same extent waived under comparable employee plans as of the date of this Agreement, and (ii) under the Parent Plans give each of the Continuing Employees and their eligible dependents credit for the plan year in which the Effective Time occurs toward applicable deductibles and annual out of pocket limits for expenses incurred prior to the Effective Time for which payment has been made to the same extent credited under comparable employee plans. | |||
(e) | Parent and Acquisitionco covenant and agree, and after the Effective Time they will cause the Company and any successor to the Company, to establish a retention plan for the benefit of Continuing Employees (the “Retention Plan”) pursuant to which the Company will make aggregate payments to Continuing Employees of not less than $4 million over the 24 month period after the Effective Date. Parent and Acquisitionco will make available to the Company or any successor to the Company any financing required in order to make payment of amounts payable pursuant to the Retention Plan. The amounts payable under the Retention Plan will be in addition to any other amounts otherwise payable to Continuing Employees, including pursuant to any existing retention plans. |
(a) | The Company shall, and shall direct and cause its Representatives and the Subsidiaries and their Representatives to immediately cease and cause to be terminated any existing solicitation of or negotiations with any person (other than Parent and Acquisitionco and their respective Representatives) that may be ongoing as of the date of this Agreement with respect to an Acquisition Proposal, whether or not initiated by the Company. The Company shall immediately eliminate access to all data rooms, electronic or otherwise, in connection with the possible sale of the Company or its assets or the assets of any Subsidiary. The Company shall request, and exercise its rights to require, the return or destruction of all confidential information of the Company and the Subsidiaries that was provided to third parties by the Company after May 1, 2007 in connection with the possible sale of the Company. | ||
(b) | The Company agrees that, except as contemplated in Section 5.8(b) or with the consent in writing of Parent or Acquisitionco, prior to the date the Arrangement Resolution is approved by the Securityholders as required by this Agreement, the Company will not, and will not authorize or permit its Representatives, the Subsidiaries and the Subsidiaries’ Representatives to: (i) solicit or knowingly encourage the making of an Acquisition Proposal by any person (other than Parent and Acquisitionco), including by way of furnishing non-public information regarding the Company and its Subsidiaries to such person, (ii) participate in any negotiations or discussions with any person (other than Parent and Acquisitionco) regarding any Acquisition Proposal made by such person, (iii) approve or recommend any Acquisition Proposal, (iv) enter into any agreement in respect of any Acquisition Proposal with the person making such Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.8(b) or (v) withdraw or modify in a manner adverse to Acquisitionco, or adopt a resolution withdrawing or modifying in a manner adverse to Acquisitionco, the recommendation of the board of directors of the Company that the Securityholders vote in favour of the Arrangement Resolution it being understood and agreed that a failure by the board of directors to affirm the approval or recommendation of the board of directors of the Company of the transactions contemplated hereby within ten Business Days after an Acquisition Proposal has been publicly announced will be deemed to be an adverse modification;provided, however, that prior to the date the Arrangement Resolution is approved by the Securityholders as required by this Agreement, nothing contained in this Agreement shall prevent (A) the board of directors of the Company from approving or recommending an Acquisition Proposal or (B) the Company from entering into an agreement (subject to compliance with Sections 5.7(c) and 7.2(c)) or engaging in negotiations or discussions with any person who has made a bona fide Acquisition Proposal that was not solicited or knowingly encouraged in breach of this Section 5.7(b), or with any Representative of any such person, where the board of directors of the Company determines in good faith after consultation with the Company’s financial advisors and outside legal counsel that the Acquisition Proposal constitutes (or would constitute, if |
C-33
consummated in accordance with its terms), or could reasonably be expected to result in, a Superior Proposal. | |||
(c) | Notwithstanding the provisions of Section 5.7(b) above or any other provision of this Agreement, the Company may accept, approve, recommend or enter into any agreement with any person providing for or to facilitate any Acquisition Proposal (a “Proposed Agreement”) if (i) such Acquisition Proposal constitutes (or would constitute, if consummated in accordance with its terms) a Superior Proposal, and (ii) the Company provides Acquisitionco with a copy of such Proposed Agreement not less than five Business Days prior to its proposed execution by the Company. During such five Business Day period, the Company acknowledges and agrees that Acquisitionco shall have the opportunity, but not the obligation, to deliver to the Company a binding offer to amend the terms of this Agreement (an “Amended Offer”) and the Company shall negotiate in good faith with Acquisitionco during such five Business Day period with respect to any Amended Offer. Any such Amended Offer must be accompanied by a form of amendment to this Agreement duly executed on behalf of Parent and Acquisitionco, and with evidence satisfactory to the Company acting reasonably that the Parent and Acquisitionco have made adequate arrangements to ensure that required funds will be available to the Parent for the consummation of the transaction reflected in the Amended Offer. The board of directors of the Company shall review any Amended Offer submitted by Acquisitionco within such five Business Day period. If the board of directors of the Company determines in light of the Amended Offer that the Proposed Agreement no longer constitutes a Superior Proposal when compared to the Amended Offer: |
(i) | the Company shall not enter into the Proposed Agreement or support in any way the Acquisition Proposal reflected in the Proposed Agreement; | ||
(ii) | the Company’s board of directors shall not withdraw, modify or change its recommendation of the Arrangement on account of the Proposed Agreement; and | ||
(iii) | the Company, Parent and Acquisitionco shall enter into an amendment to this Agreement in the form accompanying the Amended Offer. |
(d) | The Company shall ensure that its Representatives are aware of the provisions of this Section 5.7, and the Company shall be responsible for any breach of this Section 5.7 by such Representatives. |
(a) | The Company will promptly (and in any event within two Business Days) notify Acquisitionco first orally and then in writing of any proposal or offer constituting an Acquisition Proposal, or any request for non-public information that would reasonably be expected to lead to an Acquisition Proposal, of which any of its officers or directors become aware, received by the Company after the date of this Agreement. Such written notice will include a copy of any written |
C-34
Acquisition Proposal (and any amendment thereof) which has been received by the Company or, if no written Acquisition Proposal has been received, a description of the material terms and conditions of such Acquisition Proposal, the identity of the person making such Acquisition Proposal and such other material details of such Acquisition Proposal as Acquisitionco may reasonably request. The Company shall promptly advise Acquisitionco of any material change to the status or terms of such Acquisition Proposal. | |||
(b) | If (i) the board of directors of the Company determines in good faith after consultation with the Company’s financial advisors and outside legal counsel, that an Acquisition Proposal constitutes (or would constitute, if consummated in accordance with its terms), or could reasonably be expected to result in, a Superior Proposal, and (ii) such Acquisition Proposal does not by its terms contemplate a due diligence investigation lasting more than five Business Days to be undertaken by the person making such Acquisition Proposal, then, and only in such case, the Company may, subject to the execution of a confidentiality agreement by the person who made such Acquisition Proposal containing confidentiality restrictions, taken as a whole, not materially less favourable to the Company than the confidentiality restrictions in the Confidentiality Agreement (or in reliance on a confidentiality agreement that was entered into prior to the date of this Agreement), provide such person or any Representative, affiliate, lender or other actual or prospective financing source of such person with, or access to, non-public information regarding the Company and the Subsidiaries, provided that: |
(iii) | a confidentiality agreement entered into prior to the date of this Agreement may be amended by the Company to expressly permit such other party to make an Acquisition Proposal; and | ||
(iv) | the Company will promptly provide Acquisitionco with, or access to, all non-public information provided by the Company to such other person after receipt of such Acquisition Proposal and not previously provided to Acquisitionco or Parent and provide Acquisitionco with access to all further non-public information regarding the Company provided to such other person not previously provided to Acquisitionco or Parent. |
(a) | The Company agrees that, upon request by Acquisitionco, the Company shall, and shall cause the Subsidiaries to, in each case, at the expense of Acquisitionco, use its commercially reasonable efforts to: |
(i) | effect such reorganization of its business, operations and assets and the integration of other affiliated businesses of the Company or the Subsidiaries as Acquisitionco may request, acting reasonably (each a “Pre-Acquisition Reorganization”); and |
C-35
(ii) | cooperate with Parent and its advisors to determine the nature of the Pre-Acquisition Reorganizations that might be undertaken and the manner in which they would most effectively be undertaken. |
(b) | Parent and Acquisitionco acknowledge and agree, and shall ensure, that the Pre-Acquisition Reorganization shall (i) not impede, delay or prevent consummation of the Arrangement (including by giving rise to litigation by third parties), (ii) be such that, in the opinion of the Company, acting reasonably, would not prejudice the Securityholders, (iii) not require the Company to obtain the approval of any holders of Common Shares, (iv) not unreasonably interfere with the business, operations or contracts of the Company or the Subsidiaries, (v) not reasonably be expected to result in any Taxes being imposed on the Company or its Subsidiaries incrementally greater than the Taxes which would be imposed in the absence of such Pre-Closing Reorganization and (vi) not be considered in determining whether a representation, warranty or covenant of the Company hereunder has been breached. Parent and Acquisitionco acknowledge that the Pre-Acquisition Reorganization could require the consent of third parties under applicable contracts. | ||
(c) | Acquisitionco shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization at least ten Business Days prior to the Effective Date. Upon receipt of such notice, Acquisitionco and the Company shall, at the expense of Acquisitionco, work cooperatively and use commercially reasonable efforts to prepare prior to the Effective Time all documentation necessary and do such other acts and things as are necessary to give effect to such Pre-Acquisition Reorganizations. The parties shall seek to have any such Pre-Acquisition Reorganization made effective immediately prior to or contemporaneously with the Effective Time or failing that as of the last moment of the day ending immediately prior to the Effective Date, or such other time as Acquisitionco reasonably requests (but after Acquisitionco shall have waived (subject to applicable Laws) all conditions referred to in Sections 6.1, 6.2 and 6.3 or confirmed that all conditions referred to in Sections 6.1, 6.2 and 6.3 have been satisfied). | ||
(d) | No such Pre-Acquisition Reorganization will be made effective unless (i) Acquisitionco shall have waived (subject to applicable Laws) or confirmed that all conditions referred to in Sections 6.1, 6.2 and 6.3 have been satisfied and the Company is reasonably certain that the Arrangement will become effective; and (ii) such Pre-Acquisition Reorganization can be made effective immediately prior to or contemporaneously with the Effective Time or such Pre-Acquisition Reorganization can be reversed or unwound without adversely affecting the Company, the Subsidiaries, or its Securityholders in the event the Arrangement does not become effective and this Agreement is terminated and (iii) the Company, the Subsidiaries and their respective officers, directors, employees, agents, advisors and representatives shall be indemnified (jointly and severally) by Parent and Acquisitionco from and against any and all liabilities, losses, damages, claims, costs (including Taxes), expenses (including legal fees, professional fees, and disbursements), interest, awards, judgments and penalties suffered or incurred by any of them in connection with, in respect of, or as a result of any Pre-Acquisition Reorganization or (iv) the Company otherwise agrees. | ||
(e) | If the Arrangement is not completed, Acquisitionco will forthwith reimburse the Company for all reasonable fees and expenses (including any professional fees and expenses) incurred by the Company and the Subsidiaries in considering and effecting a Pre-Acquisition Reorganization and shall be responsible for any costs of the Company and the Subsidiaries in reversing or unwinding any Pre-Acquisition Reorganization that was effected at Acquisitionco’s request prior to termination of this Agreement. The obligation of Acquisitionco to reimburse the Company for fees and expenses and be responsible for costs as set out in this Section 5.10 and the indemnity described in clause 5.10(d)(iii) will be in addition to any other obligation hereunder and will survive termination of this Agreement indefinitely. |
C-36
CONDITIONS
(a) | the Arrangement Resolution shall have been approved by the Securityholders at the Meeting in accordance with the Interim Order and applicable Laws; | ||
(b) | the Interim Order and the Final Order shall each have been obtained and shall not have been set aside or modified in a manner that would have a Material Adverse Effect on the Company or a material adverse effect on Parent; | ||
(c) | no provision of any applicable Laws shall be in effect, and no judgment, injunction, order or decree shall have been entered since the date of this Agreement and shall be in effect, that makes the Arrangement illegal or otherwise restrains, enjoins or otherwise prohibits the consummation of the Arrangement, except where the violation of such Law, judgment, injunction, order or decree that would occur if the Arrangement were consummated would not have a Material Adverse Effect on the Company or a material adverse effect on Parent; and | ||
(d) | each Appropriate Regulatory Approval shall have been obtained (or concluded or, in the case of waiting or suspensory periods, expired or been terminated) and be in full force and effect (and shall not be subject to any stop-order or proceeding seeking a stop-order or revocation) except where the failure to obtain such Appropriate Regulatory Approval results from or is attributable to Parent’s or Acquisitionco’s failure to comply or consent to the compliance with any condition that does not constitute a Materially Burdensome Condition. For purposes of this Agreement, except as otherwise agreed to by the parties, a condition shall be deemed to be a “Materially Burdensome Condition” if (i) such condition is imposed by the Minister under the Investment Canada Act as a prerequisite to the granting of the Investment Canada Act Approval and (ii) compliance with such condition would impose significant material burdens on the Company or Parent. |
C-37
(a) | the Company shall have complied in all material respects with its covenants in this Agreement required to be complied with by the Company on or before the Effective Date; | ||
(b) | the representations and warranties of the Company in Article 3 shall be true and correct as of the Effective Date as if made on and as of such date (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties shall have been true and correct as of that date) except (i) as affected by transactions, changes, conditions, events or circumstances contemplated or permitted by this Agreement or (ii) for breaches of representations and warranties which in the aggregate do not have a Material Adverse Effect on the Company, provided however that for the purposes of determining the truth and correctness of any such representations and warranties, all qualifications using the term Material Adverse Effect and “in all material respects” (or any similar phrase) shall be disregarded; | ||
(c) | since the date of this Agreement, there has not occurred any event that has resulted in a Material Adverse Effect on the Company; | ||
(d) | Acquisitionco will have received a certificate of the Company signed by a senior officer of the Company and dated the Effective Date certifying that the conditions set out in Sections 6.2(a) and 6.2(b) have been satisfied which certificate will cease to have any force and effect after the Effective Time; and | ||
(e) | the holders of the Common Shares shall have approved the Rights Plan Waiver Resolution and the Rights Plan Amending Agreement shall have been executed and delivered. |
(a) | each of Parent and Acquisitionco shall have complied in all material respects with its covenants in this Agreement required to be complied with by Parent or Acquisitionco on or before the Effective Date; | ||
(b) | the representations and warranties of Parent and Acquisitionco in Article 4 shall be true and correct as of the Effective Date as if made on and as of such date (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties shall have been true and correct as of that date) except (i) as affected by transactions, changes, conditions, events or circumstances contemplated or permitted by this Agreement or (ii) for breaches of representations and warranties which in the aggregate do not have a material adverse effect on the ability of Parent or Acquisitionco to consummate the transactions contemplated by this Agreement; provided, however, that for purposes of determining the truth and correctness of any of such representations and warranties, all qualifications using the terms “material adverse effect” and “in all material respects” (or any similar phrase) shall be disregarded; | ||
(c) | the Company shall have received a certificate of Parent and Acquisitionco, signed by a senior officer of Parent and Acquisitionco and dated the Effective Date, certifying that the conditions set |
C-38
out in Sections 6.3(a) and 6.3(b) have been satisfied, which certificate will cease to have any force and effect after the Effective Time; and | |||
(d) | Acquisitionco shall have deposited with the Depositary (as defined in the Plan of Arrangement) sufficient funds to complete the transactions contemplated by Section 3.1 of the Plan of Arrangement and the Depositary shall have confirmed to the Company the receipt of such funds, which will be held by the Depositary in an escrow or restricted account pursuant to an agreement among Acquisitionco, Acquisitionco’s lenders and the Depositary, in a form satisfactory to the Company, acting reasonably, pursuant to which the Depositary will be irrevocably authorized and instructed to release the funds to the Securityholders, in its capacity as depositary in respect of the Arrangement, upon the Arrangement becoming effective. |
AMENDMENT AND TERMINATION
(a) | change the time for performance of any of the obligations or acts of the parties, including an extension of the Termination Date; | ||
(b) | waive any inaccuracies or modify any representation or warranty contained herein or in any document delivered pursuant hereto; | ||
(c) | waive compliance with or modify any of the covenants herein contained and waive or modify performance of any of the obligations of the parties; and | ||
(d) | waive compliance with or modify any conditions precedent herein contained; |
(a) | by the mutual agreement of the Company and Acquisitionco (without the need for any action on the part of the Securityholders); |
C-39
(b) | by Acquisitionco upon written notice to the Company within 10 Business Days if (i) the board of directors of the Company shall have failed to recommend or has withdrawn or modified or changed in a manner adverse to Acquisitionco its approval or recommendation of the Arrangement, or (ii) the board of directors of the Company shall have approved or recommended a Superior Proposal; | ||
(c) | by the Company upon written notice to Acquisitionco in order to enter into a definitive written agreement with respect to a Superior Proposal, subject to compliance with Section 5.8 and the payment of the Termination Fee required to be paid pursuant to Section 7.5; | ||
(d) | by either the Company or Acquisitionco, upon written notice by either one to the other: |
(i) | if the Effective Date does not occur on or before the Termination Date, except that the right to terminate this Agreement under this Section 7.2(d)(i) shall not be available to any party to this Agreement whose failure to fulfil any of its obligations has been a significant cause of, or resulted in, the failure of the Effective Date to occur by such date; | ||
(ii) | if the Meeting is held and the Arrangement Resolution is not passed by the Securityholders in accordance with applicable Laws and the Interim Order or the Rights Plan Waiver Resolution is not passed by the holders of Common Shares in accordance with applicable Laws; or | ||
(iii) | if (A) any applicable Laws make the consummation of the Arrangement or the transactions contemplated by this Agreement illegal or otherwise prohibited and such Laws have become final and non-appealable and (B) the violation of such Laws that would occur if such transactions were consummated would have a Material Adverse Effect on the Company or a material adverse effect on Parent; |
(e) | by the Company upon written notice to Acquisitionco if Acquisitionco at any time prior to the Effective Date is in breach of its representations or obligations pursuant to Section 4.7 or does not provide the Depositary under the Plan of Arrangement with sufficient funds to complete the transactions contemplated by Section 3.1 of the Plan of Arrangement as required pursuant to Section 4.7; | ||
(f) | by either the Company or Acquisitionco upon written notice by either one to the other, if (i) a final and non-appealable order of a United States or Canadian court having jurisdiction has been entered and remains in effect, that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited, and (ii) the violation of such order that would occur if such transactions were consummated would have a Material Adverse Effect on the Company or a material adverse effect on Parent; | ||
(g) | by Acquisitionco upon written notice to the Company, during the period beginning on the Meeting Date Deadline and ending on the earlier of (i) the date immediately prior to the Meeting Date or (ii) the date 10 days after the Meeting Date Deadline, if the Meeting shall not have been held by the Meeting Date Deadline (as the Meeting Date Deadline may have been extended pursuant to Section 5.2(a)(xii)); and | ||
(h) | by the Company upon written notice to Acquisitionco, during the period beginning on the Meeting Date Deadline and ending on the earlier of (i) the date immediately prior to the date on which Parent enters into the Definitive Financing Documents or (ii) the date 10 days after the Meeting Date Deadline, if Parent shall not have entered into the Definitive Financing Documents by the Meeting Date Deadline (as the Meeting Date Deadline may have been extended pursuant to Section 5.2(a)(xii)). |
C-40
(a) | Acquisitionco shall terminate this Agreement pursuant to Section 7.2(b); or | ||
(b) | the Company shall terminate this Agreement pursuant to Section 7.2(c); or | ||
(c) | either the Company or Acquisitionco shall terminate this Agreement pursuant to Section 7.2(d)(ii) in circumstances where the Arrangement Resolution or the Rights Plan Waiver Resolution have not received the required approval at the Meeting and: (i) abona fideAcquisition Proposal has been publicly announced by any person other than Acquisitionco or Parent prior to the Meeting and not withdrawn, and (ii) either (x) a transaction contemplated by an Acquisition Proposal is consummated after such termination of this Agreement and prior to the expiration of 12 months following the date of such termination of this Agreement or (y) the Company enters into a definitive agreement with respect to a transaction contemplated by an Acquisition Proposal, after such termination of this Agreement and prior to the expiration of 12 months following the date of such termination of this Agreement, and thereafter consummates such transaction;provided, however, that for purposes of this Section 7.5(c), all references to “20%” in the definition of Acquisition Proposal shall be deemed to refer to “50%”; |
C-41
GENERAL
#1203 — 4464 Markham Street
Victoria, British Columbia V8X 7X8
Attention: Chief Executive Officer
C-42
Suite 1300, Pacific Centre
777 Dunsmuir Street
Vancouver, BC V7Y 1K2
Attention: Joseph A. Garcia
Suite 2500
700 West Georgia Street
Vancouver, BC V7Y 1B3
Attention: Hector Mackay-Dunn
Untermattweg 8
Postfach
CH-3001
Bern, Switzerland
Untermattweg 8
Postfach
CH-3001
Bern, Switzerland
Suite 2600, 595 Burrard Street
P.O. Box 49314
Vancouver, B.C. V7X 1L3
C-43
C-44
(a) | No director or officer or employee of Acquisitionco or Parent or any of their respective subsidiaries shall have any personal liability whatsoever to the Company under this Agreement, or any other document delivered in connection with the Arrangement on behalf of Acquisitionco or Parent. | ||
(b) | No director or officer or employee of the Company or any of the Subsidiaries shall have any personal liability whatsoever to Acquisitionco or Parent under this Agreement, or any other document delivered in connection with the Arrangement on behalf of the Company. |
(a) | Except as expressly provided herein, the rights, powers and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers and remedies (express or implied) provided by common law, statute, custom or otherwise. | ||
(b) | The parties acknowledge and agree that an award of money damages would be inadequate for any breach of this Agreement by any party or its representatives and any such breach would cause the non-breaching party irreparable harm. Accordingly, the parties hereto agree that, in the event of any breach or threatened breach of this Agreement by one of the parties, the parties will also be |
C-45
entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at Law or equity to each of the parties. |
C-46
GALENICA AG | ||||||
By: | (Signed) Phillippe Weigerstorfer | |||||
Title: | Head Corporate Development | |||||
GALENICA CANADA LTD. | ||||||
By: | (Signed) Phillippe Weigerstorfer | |||||
Title: | Director | |||||
ASPREVA PHARMACEUTICALS CORPORATION | ||||||
By: | (Signed) J. William Freytag | |||||
Title: | Chairman |
C-47
(i) | Investment Canada Act Approval |
(ii) | Consent of the TSX of the Rights Plan Amending Agreement |
C-48
OF ASPREVA PHARMACEUTICALS CORPORATION (the “Company”)
C-49
OF ASPREVA PHARMACEUTICALS CORPORATION (the “Company”)
C-50
C-51
SHAREHOLDER RIGHTS AGREEMENT
(a) | subsection (v) is created as follows: | ||
“(v) Acquisitionco or Parent, if such Person becomes the Beneficial Owner of 20% or more of the outstanding Voting Shares of the Corporation pursuant to the combination agreement dated October 17, 2007 among Parent, Acquisitionco and the Corporation, as such agreement may be amended from time to time and any transactions contemplated thereby, including the plan of arrangement contemplated thereby;” | |||
(b) | subsection (iii) is hereby amended by deleting the word “or” from the end of the subsection; and | ||
(c) | subsection (iv) is hereby amended by adding the word “or” at the end of the subsection. |
C-52
C-53
ASPREVA PHARMACEUTICALS CORPORATION | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
COMPUTERSHARE INVESTOR SERVICES INC. | ||||||
By: | ||||||
Name: | ||||||
Title: |
C-54
C-55
(a) | the Aspreva Shareholder covenants and agrees in favour of Galenica that, during the term of this Agreement, it will not, directly or indirectly sell, transfer or assign or agree to sell, transfer or assign or grant to any person any right or option to buy any of the Subject Securities or the voting rights attached thereto, without the prior written consent of Galenica, provided that such consent to transfer shall not be necessary if the transfer is to an affiliate of the Aspreva Shareholder where such affiliate executes an agreement on substantially the same terms as this Agreement, agreeing to be bound by the provisions of this Agreement, and | ||
(b) | without limiting the generality of the foregoing, the Aspreva Shareholder agrees not to tender or otherwise deposit the Subject Securities to any tender offer or take-over bid made by any person other than Galenica. |
(a) | the Effective Time; or | ||
(b) | the time at which the Combination Agreement is terminated in accordance with its terms. |
C-56
(a) | the class and number of the Securities beneficially owned by the Aspreva Shareholder at the date hereof, whether directly or indirectly, and all Securities over which the Aspreva Shareholder has control or direction as of the date hereof, are as specified in Schedule A to this Agreement; | ||
(b) | the Aspreva Shareholder has and will have the right to vote the Subject Securities at the Aspreva Meeting and the Subject Securities set forth on Schedule A constitute all of the Securities owned beneficially and of record by the Aspreva Shareholder and any of his, her, or its affiliates and all of the Securities over which the Aspreva Shareholder and any of his or her affiliates has control or direction; | ||
(c) | if the Aspreva Shareholder is a corporation, the Aspreva Shareholder is duly incorporated and organized and is validly existing under the laws of its jurisdiction of incorporation; | ||
(d) | the Aspreva Shareholders has the power and capacity to enter into, and to perform its obligations under, this Agreement, and the execution and delivery of this Agreement has been duly authorized by all necessary action on the part of each of the Aspreva Shareholder; | ||
(e) | assuming the due authorization, execution and delivery of this Agreement by Galenica, this Agreement constitutes a valid and binding obligation of the Aspreva Shareholder enforceable against the Aspreva Shareholder in accordance with its terms, subject to the usual exceptions as to bankruptcy, insolvency and similar laws of general application and the availability of equitable remedies; and | ||
(f) | neither the entering into of this Agreement nor the performance by the Aspreva Shareholder of his, her, or its obligations under this Agreement will contravene, breach or result in any default under any agreement, arrangement, understanding or other legally binding commitments to which the Aspreva Shareholder is a party or by which the Aspreva Shareholder may be bound or, if the Aspreva Shareholder is a corporation, under its articles, by-laws, constating documents or other organizational documents. |
(a) | Galenica is duly incorporated and organized and is validly existing under the laws of its jurisdiction of incorporation; | ||
(b) | Galenica has the power and capacity to enter into, and to perform its obligations under, this Agreement, and the execution and delivery of this Agreement has been duly authorized by all necessary action on the part of Galenica; |
C-57
(c) | assuming the due authorization, execution and delivery of this Agreement by the Aspreva Shareholder, this Agreement constitutes a valid and binding obligation of Galenica, enforceable against Galenica in accordance with its terms, subject to the usual exceptions as to bankruptcy, insolvency and similar laws of general application and the availability of equitable remedies; and | ||
(d) | neither the entering into of this Agreement nor the performance by Galenica of its obligations under this Agreement will contravene, breach or result in any default under any agreement, arrangement, understanding or other legally binding commitments to which Galenica is a party or by which Galenica may be bound or under its articles, by-laws, constating documents or other organizational documents. |
October ___, 2007 (Date) |
C-58
GALENICA CANADA LTD. | ||||
By: | ||||
(Signature) | ||||
Its: | ||||
(Title) |
C-59
C-60
PLAN OF ARRANGEMENT
OF THEBUSINESS CORPORATIONS ACT(BRITISH COLUMBIA)
INTERPRETATION
(a) | “Acquisitionco” means Galenica Canada Ltd., a Canadian corporation; | ||
(b) | “Arrangement” means an arrangement under the provisions of Division 5 of Part 9 of the BCBCA, on the terms and conditions set forth in this Plan of Arrangement and any amendment, variation or supplement thereto made (i) in accordance with Section 7.1 of the Combination Agreement, (ii) in accordance with Article 6, or (iii) at the direction of the Court in the Final Order; | ||
(c) | “Arrangement Resolution” means the resolution of the Securityholders approving the Arrangement in accordance with Section 289 of the BCBCA; | ||
(d) | “BCBCA” means theBusiness Corporations Act(British Columbia) S.B.C. 2002, c.57 including all regulations made thereunder, as amended; | ||
(e) | “Business Day” means any day on which commercial banks are generally open for business in Bern, Switzerland, London, England, and Vancouver, British Columbia other than a Saturday, Sunday or a day observed as a holiday in Bern, Switzerland, London, England under the laws of Switzerland or England or in Vancouver under the laws of the Province of British Columbia or federal laws of Canada; | ||
(f) | “Combination Agreement” means the agreement made as of October 17, 2007 among Parent, Acquisitionco and the Company, as the same may be supplemented or amended from time to time; | ||
(g) | “Common Shares” means the issued and outstanding common shares in the capital of the Company, from time to time, including the associated rights under the Rights Plan; | ||
(h) | “Common Shareholders” means the Holders of Common Shares; | ||
(i) | “Company” means Aspreva Pharmaceuticals Corporation, a corporation existing under the laws of the Province of British Columbia; | ||
(j) | “Court” means the Supreme Court of British Columbia; | ||
(k) | “Depositary” means such institution as Acquisitionco may determine prior to the mailing of the Letter of Transmittal by notice in writing to the Company; | ||
(l) | “Dissent Rights” means the rights of dissent in respect of the Arrangement described in Section 4.1; | ||
(m) | “Dissenting Shares” means the Common Shares held by Dissenting Shareholders; | ||
(n) | “Dissenting Shareholders” means Common Shareholders who have duly and validly exercised their Dissent Rights in strict compliance with the Dissent Rights and such Dissent Rights have not terminated; | ||
(o) | “Effective Date” means the later of: (a) the date upon which all of the conditions to the completion of the Arrangement as set out in Article 6 of the Combination Agreement have been satisfied or waived in accordance with the Combination Agreement and all documents agreed to be delivered thereunder have been delivered to the satisfaction of the parties thereto, acting |
D-1
reasonably, or (b) January 3, 2008, or such other date as the parties to the Combination Agreement may agree; | |||
(p) | “Effective Time” means the time on the Effective Date as specified in writing by the Company in a notice delivered to the other parties to the Combination Agreement; | ||
(q) | “Final Order” means the order of the Court approving the Arrangement under Section 291 of the BCBCA as such order may be affirmed, amended or modified by the Court at any time prior to the Effective Date or, if appealed, then, unless such appeal is withdrawn, abandoned or denied, as affirmed or as amended on appeal; | ||
(r) | “Holder”, when used with reference to (a) Common Shares, means the holder of such shares shown from time to time in the central securities register maintained by or on behalf of the Company in respect of the Common Shares, and (b) Options, means the holder of such Option shown from time to time in the central securities register maintained by or on behalf of the Company in respect of the Options; | ||
(s) | “Interim Order” means the interim order of the Court providing for, among other things, the calling and holding of the Meeting, as such order may be amended, modified, supplemented or varied by the Court; | ||
(t) | “Letter of Transmittal” means the letter of transmittal to be delivered by the Company to the Securityholders providing for the delivery of the Common Shares and Options, as applicable, to the Depositary; | ||
(u) | “Liens” means any mortgage, hypothec, prior claim, lien, pledge, assignment for security, security interest, lease, option, right or third parties or other charge or encumbrance, including the lien of retained title of a conditional vendor, and any easement, servitude, right-of-way or other encumbrance on title to real or immovable property or personal or movable property; | ||
(v) | “Meeting” means the special meeting of the Securityholders, including any adjournment, adjournments, postponement or postponements thereof, to be called and held in accordance with the Interim Order to consider the Arrangement Resolution and the Rights Plan Waiver Resolution; | ||
(w) | “Notice of Dissent” means a notice of dissent duly and validly given by a Holder exercising Dissent Rights as contemplated in the Interim Order and as described in Article 4; | ||
(x) | “Option Consideration” means a cash amount equal to the excess, if any, of (i) the product of the number of Common Shares underlying the particular Option and the Purchase Price over (ii) the aggregate exercise price payable under such Option by the holder to acquire the Common Shares underlying such Option (or if the exercise price of such Option under the terms of such Option is expressed in Canadian currency, the U.S. dollar equivalent of such exercise price determined by using the U.S. Dollar/Canadian Dollar Daily Noon Rate as published by the Bank of Canada on the Business Day prior to the Effective Date); | ||
(y) | “Optionholder” means a Holder of Options; | ||
(z) | “Options” means the options to acquire common shares in the capital of the Company granted under the Stock Option Plan; | ||
(aa) | “Parent” means Galenica AG, a company organized under the laws of Switzerland; | ||
(bb) | “Plan of Arrangement”, “hereof”, “herein”, “hereunder” and similar expressions means this plan of arrangement, including any appendices hereto, and any amendments, variations or supplements hereto made from time to time in accordance with the terms hereof, the Combination Agreement or made at the direction of the Court in the Final Order; | ||
(cc) | “Purchase Price” means $26.00 for each Common Share less the amount of any dividend or distribution paid in respect of each Common Share from the date hereof to the Effective Time; | ||
(dd) | “Rights Plan” means the shareholder rights plan of the Company established pursuant to the Shareholder Rights Plan Agreement dated as of February 4, 2005 between the Company and Computershare Investor Services Inc., as rights agent; |
D-2
(ee) | “Rights Plan Resolution” means the ordinary resolution of the Holders of Common Shares attached to the Combination Agreement as Schedule C; | ||
(ff) | “Securityholders” at any time means, collectively, the Common Shareholders and Optionholders at such time; | ||
(gg) | “Stock Option Plan” means the Aspreva 2002 Incentive Stock Option Plan of the Company; and | ||
(hh) | “Tax Act” means theIncome Tax Act(Canada). |
EFFECT OF THE ARRANGEMENT
ARRANGEMENT
(a) | At the Effective Time: |
(i) | all of the Options granted and outstanding immediately prior to the Effective Time will be transferred by the holders thereof to the Company in exchange for a cash payment equal to the Option Consideration, payable to each Optionholder in respect of each Option transferred by such Optionholder; | ||
(ii) | with respect to each Option, the holder thereof will cease to be the holder of such Option, will cease to have any rights as a holder in respect of such Option or under the Stock Option Plan, and such holder’s name will be removed from the registers of Options with respect to such Options; |
D-3
(iii) | the Stock Option Plan will be cancelled; |
(b) | Immediately after the steps in Section 3.1(a) occur: |
(i) | all Common Shares outstanding immediately prior to the Effective Time (including Dissenting Shares and any Common Shares issued pursuant to the exercise of any Option duly exercised prior to the Effective Time in accordance with the provisions of the Stock Option Plan and the option agreement evidencing any such Option), will be and be deemed to be transferred by the Common Shareholders to Acquisitionco (free and clear of any Liens) in exchange for a cash payment equal to (A) the Purchase Price for each Common Share other than Dissenting Shares, (B) the fair value as set out in Section 4.1(a) for each Dissenting Share to which Section 4.1(a) applies, and (C) in respect of any Common Shareholder who exercises Dissent Rights and who is ultimately not entitled to be paid fair value for the Common Shares in respect of which they have exercised Dissent Rights, the Purchase Price for each such Common Share; and | ||
(ii) | with respect to each Common Share: |
(A) | the holder thereof will cease to be the holder of such Common Share; | ||
(B) | the holder’s name will be removed from the central securities register with respect to such Common Shares; and | ||
(C) | legal and beneficial title to such Common Share will vest in Acquisitionco and Acquisitionco will be and be deemed to be the transferee and legal and beneficial owner of all Common Shares (free and clear of any Liens) and will be entered in the central securities register as the sole holder thereof and the former holder and beneficial owner of such Common Share will cease to have any rights as a shareholder in respect of such Common Share. |
DISSENT RIGHTS
(a) | are ultimately determined to be entitled to be paid fair value for the Common Shares in respect of which they have exercised Dissent Rights will be deemed to have irrevocably transferred such Common Shares to Acquisitionco pursuant to Section 3.1(b)(i)(B) in consideration of such fair value; or | ||
(b) | are ultimately not entitled, for any reason, to be paid fair value for the Common Shares in respect of which they have exercised Dissent Rights will be deemed to have participated in the Arrangement on the same basis as a Common Shareholder that has not exercised Dissent Rights, as at and from the time specified in Section 3.1(b) for the consideration set forth in Section 3.1(b)(i)(C); |
D-4
CERTIFICATES AND PAYMENTS
(a) | At or before the Effective Time, Acquisitionco will deposit, and Parent will cause Acquisitionco to deposit, with the Depositary in escrow for the benefit of the Common Shareholders, cash in the aggregate amount equal to the payments contemplated by Section 3.1(b)(i) (calculated without reference to whether any Common Shareholders have exercised or may exercise Dissent Rights). As soon as practicable following the later of the Effective Date and the surrender to the Depositary for cancellation of a certificate which immediately prior to the Effective Time represented outstanding Common Shares that were exchanged under the Arrangement, together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the Common Shareholder of such surrendered certificate will be entitled to receive in exchange therefor, the cash which such Common Shareholder has the right to receive under the Arrangement for such Common Shares, less any amounts withheld pursuant to Section 5.4 and any certificate so surrendered will forthwith be cancelled. The cash deposited with the Depositary will be held in an interest-bearing account and any interest earned on such funds will be for the account of Acquisitionco. | ||
(b) | At or before the Effective Time, Acquisitionco will deposit with the Depositary in escrow for the benefit of the Optionholders, cash in the aggregate amount equal to the payments contemplated by Section 3.1(a). As soon as practicable following the later of the Effective Date and the delivery to the Depositary by or on behalf of a former holder of any Option of a duly completed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the former holder of such Option, as reflected on the registers maintained by or on behalf of the Company in respect of Options will be entitled to receive the cash payment which such former holder is entitled to receive pursuant to Section 3.1(a) less any amounts withheld pursuant to Section 5.4. | ||
(c) | Until surrendered as contemplated by this Section 5.1, each certificate which immediately prior to the Effective Time represented Common Shares will be deemed after the time described in Section 3.1(b)(i) to represent only the right to receive upon such surrender a cash payment in lieu of such certificate as contemplated in this Section 5.1, less any amounts withheld pursuant to Section 5.4. | ||
(d) | Subject to Section 5.3, the Company, Acquisitionco and Parent will cause the Depositary, (i) in the case of a former holder of Common Shares, as soon as practicable following the time the former holder becomes entitled to a cash payment in accordance with Section 5.1(a), and (ii) in the case of a former holder of Options, as soon as practicable following the time the former option holder becomes entitled to a net cash payment in accordance with Section 5.1(b), to: |
(A) | forward or cause to be forwarded by first class mail (postage paid) to such former holder at the address specified in the Letter of Transmittal; or | ||
(B) | if requested by such former holder in the Letter of Transmittal, make available at the offices of the Depositary specified in the Letter of Transmittal for pick-up by such former holder; or | ||
(C) | if the Letter of Transmittal neither specifies an address nor contains a request as described in Sections 5.1(d)(B) and 5.1(d)(A), forward or cause to be forwarded by first class mail (postage paid) to such former holder at the address of such former holder as shown on registers of Options or the central securities register maintained by or on behalf of the Company in respect of Common shares, or the registers of Options maintained by or on behalf of the Company in respect of the Options, as applicable, immediately prior to the Effective Time: |
D-5
a cheque representing the net cash payment, if any, payable to such former holder in accordance with the provisions hereof. |
(e) | No former holder of Common Shares that were acquired by Acquisitionco pursuant to Section 3.1(b)(i) will be entitled to receive any consideration with respect to such Common Shares, other than the net cash payment, if any, which they are entitled to receive in accordance with Section 3.1(b)(i) and, for greater certainty, no such former holder will be entitled to receive any interest, dividends, premium or other payment in connection therewith. |
D-6
AMENDMENTS
(a) | The Company reserves the right to amend, modify or supplement this Plan of Arrangement at any time and from time to time prior to the Effective Date, provided that each such amendment, modification or supplement must be (i) set out in writing, (ii) approved by Acquisitionco, (iii) filed with the Court and, if made following the Meeting, approved by the Court and (iv) communicated to Securityholders in the manner required by the Court (if so required). | ||
(b) | Any amendment, modification or supplement to this Plan of Arrangement may be proposed by the Company at any time prior to the Meeting (provided that Acquisitionco has consented thereto) with or without any other prior notice or communication, and if so proposed and accepted by the persons voting at the Meeting (other than as may be required under the Interim Order), will become part of this Plan of Arrangement for all purposes. | ||
(c) | Any amendment, modification or supplement to this Plan of Arrangement that is approved or directed by the Court following the Meeting will be effective only if (i) it is consented to by each of the Company, Parent and Acquisitionco and (ii) if required by the Court or applicable law, it is consented to by Securityholders voting in the manner directed by the Court. | ||
(d) | Any amendment, modification or supplement to this Plan of Arrangement may be made following the Effective Date unilaterally by Acquisitionco provided that it concerns a matter which, in the reasonable opinion of Acquisitionco, is of an administrative nature required to better give effect to the implementation of this Plan of Arrangement and is not adverse to the financial or economic interests of any former Securityholder. |
FURTHER ASSURANCES
D-7
OPINION – LAZARD
Aspreva Pharmaceuticals Corporation
#1203 – 4464 Markham Street
Victoria, British Columbia V8X 7X8
(i) | Reviewed the financial terms and conditions of the latest draft of the Agreement dated October 16, 2007; | ||
(ii) | Analyzed certain publicly available historical business and financial information relating to the Company; | ||
(iii) | Reviewed various financial forecasts and other data provided to us by the management of the Company relating to its business under alternative scenarios relating to the erosion of royalties for the Company’s principal product after the relevant patents expire (which we refer to as the “generic erosion scenarios”); | ||
(iv) | Held discussions with members of the senior management of the Company with respect to the business and prospects of the Company; | ||
(v) | Reviewed the financial terms of certain purchase transactions involving the sale of royalties for marketed products which we believe to be generally comparable to the products sold by the Company; | ||
(vi) | Reviewed the historical stock prices and trading volumes of the Company Common Shares; and | ||
(vii) | Conducted such other financial studies, analyses and investigations as we deemed appropriate. |
E-1
Very truly yours, LAZARD FRERES & CO. LLC | ||||
By | (signed) David Low | |||
David Low | ||||
Managing Director |
E-2
OPINION – LEHMAN BROTHERS
Aspreva Pharmaceuticals Corporation
#1203 – 4464 Markham Street
Victoria, BC
Canada
V8Z 7X8
F-1
F-2
INTERIM ORDER
S077684 – No. | ||
Vancouver Registry |
OF THE BUSINESS CORPORATIONS ACT, S.B.C. 2002, C. 57, AS AMENDED
WITH ASPREVA PHARMACEUTICALS CORPORATION
AND ITS SECURITYHOLDERS
) | THE HONOURABLE | ) | Thursday, the 15th day of | |||||||||
BEFORE | ) | Mr. Justice | ) | NOVEMBER, 2007. | ||||||||
) | Preston | ) |
G-1
1. | Unless otherwise defined, terms beginning with capital letters shall have the respective meanings set out in the Notice of Special Meeting and Management Information Circular (collectively, the “Circular”) attached as Exhibit B to the Affidavit of John Parkinson #1, sworn on November 14, 2007 and filed in this proceeding and the Petition filed herein; | |
2. | The Company be and is hereby authorised and directed to call, hold and conduct a special meeting (the “Meeting”) of the holders of the common shares (the “Common Shares”) in the capital of the Company (the “Shareholders”) and the holders of options (the “Options”) granted by the Company (the “Optionholders” and together with the Shareholders, the “Securityholders”) at 10:00 a.m. on December 17, 2007 at the Four Seasons Hotel, 791 West Georgia Street, Vancouver, British Columbia to consider and, if thought fit, to pass, the special resolutions (the “Arrangement Resolutions”) with or without variation and substantially in the form set out in Appendix A to the Circular to approve the arrangement (the “Arrangement”) substantially in the form set forth in the plan of arrangement set out in Appendix D to the Circular (the “Plan of Arrangement”); | |
3. | At the Meeting, the Company may also transact such other business as is contemplated by the Circular or as may properly come before the Meeting; |
G-2
4. | The Meeting shall be called, held and conducted in accordance with the Company’s Notice of Articles and Articles (including any quorum requirements), the Notice of Meeting contained in the Circular, the provisions of this Interim Order, the BCA, any further Order of this Court and, to the extent of any inconsistency or discrepancy between this Interim Order and the Articles of the Company, this Interim Order shall govern; | |
5. | The Company, if it deems advisable, is specifically authorized to adjourn or postpone the Meeting on one or more occasions, without the necessity of first convening the Meeting or first obtaining any vote of the Securityholders respecting the adjournment or postponement and without the need for approval of the Court. Notice of any such adjournments or postponements shall be given by such method as the Company may determine is appropriate in the circumstances, including by press release, newspaper advertisement or mail; | |
6. | The Record Date (as defined in paragraph 7 below) shall not change in respect of adjournments or postponements of the Meeting; |
G-3
7. | Good and sufficient notice of the Meeting for all purposes will be given by the Company by mailing, by prepaid, ordinary mail, at least 21 days prior to the date of the Meeting (excluding the date of mailing and excluding the date of the Meeting), the following materials: |
a) | the Circular; | ||
b) | a letter of transmittal for each class of Securityholder; and | ||
c) | a form of proxy for each class of Securityholder; |
(collectively referred to as the “Meeting Materials”), in substantially the forms attached as Exhibit B, Exhibit C, and Exhibit D respectively to the Affidavit of John Parkinson #1, sworn on November 14, 2007 and filed in this proceeding with such amendments or additional documents as counsel may advise are necessary or desirable (provided that such amendments or additional documents are not inconsistent with this Interim Order), to (i) the Shareholders at their registered addresses as they may appear on the central securities register of the Company as at 5:00 p.m. (Vancouver time) on November9,2007 (the “Record Date”); and (ii) the Optionholders at their registered addresses as they |
G-4
may appear on the central securities register of the Company as at 5:00 p.m. (Vancouver time) on the Record Date; |
8. | The accidental omission or delay in giving notice of the Meeting to, or the non-receipt of such notice by, one or more of the Security holders as specified in the previous paragraph shall not invalidate any resolution passed or proceedings taken at the Meeting; |
9. | The Company is, subject to the terms of the Combination Agreement, authorized to make such amendments, revisions or supplements to the Meeting Materials after mailing as the Company may determine, and the Company may distribute and communicate such amendments, revisions or supplements by press release, newspaper advertisement or mail, as the Company may determine; |
10. | The Company is authorized, at its expense, to solicit proxies directly and through its officers, directors and employees, and through such agents or representatives as it may retain for that purpose, and by mail, telephone or such other form of personal or electronic communication as it may determine. |
G-5
11. | All proxies to be submitted in connection with the Meeting must be received by the Company’s transfer agent at the following address no later than 10:00 a.m. (Vancouver time) on December 13, 2007; Cornputershare Investor Services Inc., Attention Proxy Department, 100 University Avenue, 9th Floor, Toronto Ontario, M5J 2Y1, or, in the case of an adjournment or postponement of the Meeting, no later than 10:00 a.m. (Vancouver time) on the day that is two Business Days before the date of the reconvened Meeting ; |
12. | The Chair of the Meeting may. in his or her discretion, waive the time limit for the deposit of a proxy by a Securityholder; |
13. | The Arrangement Resolutions will be passed if they receive the following level of approval from the following classes of the Securityholders: |
(a) | 66 2/3% of the votes cast by the Shareholders present in person or by proxy at the Meeting voting as a class (with each Shareholder entitled to cast one vote for each Common Share held); and | ||
(b) | 66 2/3% of the votes cast by Shareholders and Optionholders present in person or by proxy at the Meeting, voting together as a class (with each Shareholder entitled |
G-6
to one vote for each Common Share held and each Optionholder entitled to one vote for each Common Share such holder would have received on a valid exercise of such holder’s Options without reference to any vesting provisions or exercise price); |
14. | The record date for purposes of determining Securityholders entitled to vote at the Meeting is 5:00 p.m. (Vancouver time) on the Record Date; | |
15. | The only persons entitled to attend the Meeting shall be: |
(a) | the Securiryholders as of 5:00 p.m. (Vancouver time) on the Record Date, or their respective proxyholders or representatives; | ||
(b) | the Company’s directors, officers, auditors and legal counsel; and | ||
(c) | any other person who receives the permission of the Chair of the Meeting; |
16. | The Company’s Board of Directors, without further notice to or approval of the Securityholders, is authorised to (i) amend the Plan of Arrangement to the extent permitted by the Combination Agreement; and (ii) not proceed with the Arrangement at any time prior to the Effective Date (as defined in the Plan of Arrangement); |
G-7
17. | The registered Shareholders each have rights of dissent with respect to the Plan of Arrangement and as provided by sections 242-247 of the BCA, as modified by Article 4 of the Plan of Arrangement as the same may be modified by the Interim Order and the Final Order, provided that notwithstanding the BCA: |
(a) | any registered Shareholder who intends to exercise their right to dissent must deliver written notice of his/her dissent (“Notice of Dissent”) to the Company to be received no later than 10:00 a.m. (Vancouver time) on December 13, 2007 or, in the case of any adjournment or postponement of the Meeting, no later than 10:00 a.m. (Vancouver time) on the day that is two business days before the date of the reconvened Meeting; and | ||
(b) | any and all Notices of Dissent must be delivered to the Company at the following address: c/o Farris, Vaughan, Wills & Murphy LLP, Barristers and Solicitors, 25thFloor, 700 West Georgia Street, Vancouver, British Columbia, V7Y 1B3 (Attention: R. Hector MacKay-Dunn); |
G-8
18. | Meeting Materials to be sent as specified in Paragraph 7 of this Interim Order will include a copy of this Interim Order and the notice of hearing for the final order (the “Final Order”) (the “Notice of Hearing”) approving the Arrangement contemplated by the Plan of Arrangement, and service of the Meeting Materials shall be deemed to be effective on the fifth day following the date on which the Meeting Materials are mailed to the Securityholders, whether those Securityholders reside within the jurisdiction of British Columbia or within another jurisdiction, and the Company shall not be required to serve copies of the Petition herein or any Affidavit filed in support except upon written request to the solicitors for the Company at their address for delivery set out in the Notice of Hearing; |
19. | Mailing as specified in Paragraphs 7 and 18 of this Interim Order shall constitute good and sufficient service of this proceeding, this Interim Order and the application for the Final Order approving the Arrangement contemplated by the Plan of Arrangement upon all persons who are entitled to receive such notice and no other form of service need be made; |
G-9
20. | The hearing for the Final Order be set for 9:45 a.m. on December 18, 2007 at the Courthouse at 800 Smithe Street, Vancouver, British Columbia or as soon thereafter as the hearing of the Final Order can be heard or at such other date and time as this Court may direct; |
21. | Any Securityholder has the right to appear (either in person or by their solicitor) and make submissions at the hearing of the application for the Final Order, provided that such Securityholder shall file an Appearance in the form prescribed by theRules of Courtof the Supreme Court of British Columbia with this Court and deliver a copy of the filed Appearance together with a copy of all materials upon which the Securityholder intends to rely at the hearing for the Final Order to the solicitors for the Company at their address for delivery set out in the Petition on or before 4:00 p.m. (Vancouver time) on December 11, 2007 or as the Court may otherwise direct; |
22. | That only those Securityholders who have filed and delivered an Appearance in accordance with this Interim Order need be provided with notice of further materials filed in this proceeding, or if it is adjourned, notice of the hearing for the Final Order; and |
G-10
23. | That the Petitioner and its directors and officers shall, and hereby do, have liberty to apply to vary this Interim Order or for such further order or orders as may be appropriate. |
BY THE COURT | ||||
/s/“Signed” | ||||
APPROVED AS TO FORM: | ||||
/s/ R J McDonell |
G-11
Vancouver Registry
COURT OF BRITISH COLUMBIA
OF THEBUSINESS CORPORATIONS ACT, S.B.C. 2002, C. 57, AS AMENDED
WITH ASPREVA PHARMACEUTICALS CORPORATION
AND ITS SECURITYHOLDERS
RJM/jss | File no.: 23095-72 |
Barristers & Solicitors
2500 – 700 West Georgia Street
Vancouver, B.C. V7Y 1B3
G-12
NOTICE OF HEARING
Vancouver Registry
OF THEBUSINESS CORPORATIONS ACT, S.B.C. 2002, C. 57, AS AMENDED
WITH ASPREVA PHARMACEUTICALS CORPORATION
AND ITS SECURITYHOLDERS
November 15, 2007 | (signed) Robert J. McDonell |
H-1
Vancouver Registry
COURT OF BRITISH COLUMBIA
OF THEBUSINESS CORPORATIONS ACT, S.B.C. 2002, C. 57, AS AMENDED
WITH ASPREVA PHARMACEUTICALS CORPORATION
AND ITS SECURITYHOLDERS
NOTICE OF HEARING
RJM/RMM | File no.: 23095-72 |
Barristers & Solicitors
2500 – 700 West Georgia Street
Vancouver, B.C. V7Y 1B3
H-2
(a) | in the case of a dissent in respect of a resolution, the fair value that the notice shares had immediately before the passing of the resolution, | ||
(b) | in the case of a dissent in respect of an arrangement approved by a court order made under section 291 (2) (c) that permits dissent, the fair value that the notice shares had immediately before the passing of the resolution adopting the arrangement, or | ||
(c) | in the case of a dissent in respect of a matter approved or authorized by any other court order that permits dissent, the fair value that the notice shares had at the time specified by the court order, excluding any appreciation or depreciation in anticipation of the corporate action approved or authorized by the resolution or court order unless exclusion would be inequitable. |
(2) | This Division applies to any right of dissent exercisable by a shareholder except to the extent that |
(a) | the court orders otherwise, or | ||
(b) | in the case of a right of dissent authorized by a resolution referred to in section 238 (1) (g), the court orders otherwise or the resolution provides otherwise. |
(a) | under section 260, in respect of a resolution to alter the articles to alter restrictions on the powers of the company or on the business it is permitted to carry on; | ||
(b) | under section 272, in respect of a resolution to adopt an amalgamation agreement; | ||
(c) | under section 287, in respect of a resolution to approve an amalgamation under Division 4 of Part 9; | ||
(d) | in respect of a resolution to approve an arrangement, the terms of which arrangement permit dissent; | ||
(e) | under section 301 (5), in respect of a resolution to authorize or ratify the sale, lease or other disposition of all or substantially all of the company’s undertaking; | ||
(f) | under section 309, in respect of a resolution to authorize the continuation of the company into a jurisdiction other than British Columbia; | ||
(g) | in respect of any other resolution, if dissent is authorized by the resolution; | ||
(h) | in respect of any court order that permits dissent. |
(a) | prepare a separate notice of dissent under section 242 for |
I-1
(i) | the shareholder, if the shareholder is dissenting on the shareholder’s own behalf, and | ||
(ii) | each other person who beneficially owns shares registered in the shareholder’s name and on whose behalf the shareholder is dissenting, |
(b) | identify in each notice of dissent, in accordance with section 242 (4), the person on whose behalf dissent is being exercised in that notice of dissent, and | ||
(c) | dissent with respect to all of the shares, registered in the shareholder’s name, of which the person identified under paragraph (b) of this subsection is the beneficial owner. |
(3) | Without limiting subsection (2), a person who wishes to have dissent exercised with respect to shares of which the person is the beneficial owner must |
(a) | dissent with respect to all of the shares, if any, of which the person is both the registered owner and the beneficial owner, and | ||
(b) | cause each shareholder who is a registered owner of any other shares of which the person is the beneficial owner to dissent with respect to all of those shares. |
(2) | A shareholder wishing to waive a right of dissent with respect to a particular corporate action must |
(a) | provide to the company a separate waiver for |
(i) | the shareholder, if the shareholder is providing a waiver on the shareholder’s own behalf, and | ||
(ii) | each other person who beneficially owns shares registered in the shareholder’s name and on whose behalf the shareholder is providing a waiver, and |
(b) | identify in each waiver the person on whose behalf the waiver is made. |
(a) | the shareholder in respect of the shares of which the shareholder is both the registered owner and the beneficial owner, and | ||
(b) | any other shareholders, who are registered owners of shares beneficially owned by the first mentioned shareholder, in respect of the shares that are beneficially owned by the first mentioned shareholder. |
(a) | a copy of the proposed resolution, and | ||
(b) | a notice of the meeting that specifies the date of the meeting, and contains a statement advising of the right to send a notice of dissent. |
I-2
(a) | a copy of the proposed resolution, and | ||
(b) | a statement advising of the right to send a notice of dissent. |
(a) | a copy of the resolution, | ||
(b) | a statement advising of the right to send a notice of dissent, and | ||
(c) | if the resolution has passed, notification of that fact and the date on which it was passed. |
(a) | a copy of the entered order, and | ||
(b) | a statement advising of the right to send a notice of dissent. |
(a) | if the company has complied with section 240 (1) or (2), send written notice of dissent to the company at least 2 days before the date on which the resolution is to be passed or can be passed, as the case may be, | ||
(b) | if the company has complied with section 240 (3), send written notice of dissent to the company not more than 14 days after receiving the records referred to in that section, or | ||
(c) | if the company has not complied with section 240 (1), (2) or (3), send written notice of dissent to the company not more than 14 days after the later of |
(i) | the date on which the shareholder learns that the resolution was passed, and | ||
(ii) | the date on which the shareholder learns that the shareholder is entitled to dissent. |
(a) | on or before the date specified by the resolution or in the statement referred to in section 240 (2) (b) or (3) (b) as the last date by which notice of dissent must be sent, or | ||
(b) | if the resolution or statement does not specify a date, in accordance with subsection (1) of this section. |
(3) | A shareholder intending to dissent under section 238 (1) (h) in respect of a court order that permits dissent must send written notice of dissent to the company |
I-3
(a) | within the number of days, specified by the court order, after the shareholder receives the records referred to in section 241, or | ||
(b) | if the court order does not specify the number of days referred to in paragraph (a) of this subsection, within 14 days after the shareholder receives the records referred to in section 241. |
(a) | if the notice shares constitute all of the shares of which the shareholder is both the registered owner and beneficial owner and the shareholder owns no other shares of the company as beneficial owner, a statement to that effect; | ||
(b) | if the notice shares constitute all of the shares of which the shareholder is both the registered owner and beneficial owner but the shareholder owns other shares of the company as beneficial owner, a statement to that effect and |
(i) | the names of the registered owners of those other shares, | ||
(ii) | the number, and the class and series, if applicable, of those other shares that are held by each of those registered owners, and | ||
(iii) | a statement that notices of dissent are being, or have been, sent in respect of all of those other shares; |
(c) | if dissent is being exercised by the shareholder on behalf of a beneficial owner who is not the dissenting shareholder, a statement to that effect and |
(i) | the name and address of the beneficial owner, and | ||
(ii) | a statement that the shareholder is dissenting in relation to all of the shares beneficially owned by the beneficial owner that are registered in the shareholder’s name. |
(a) | if the company intends to act on the authority of the resolution or court order in respect of which the notice of dissent was sent, send a notice to the dissenter promptly after the later of |
(i) | the date on which the company forms the intention to proceed, and | ||
(ii) | the date on which the notice of dissent was received, or |
(b) | if the company has acted on the authority of that resolution or court order, promptly send a notice to the dissenter. |
(a) | be dated not earlier than the date on which the notice is sent, | ||
(b) | state that the company intends to act, or has acted, as the case may be, on the authority of the resolution or court order, and | ||
(c) | advise the dissenter of the manner in which dissent is to be completed under section 244. |
(a) | a written statement that the dissenter requires the company to purchase all of the notice shares, |
I-4
(b) | the certificates, if any, representing the notice shares, and | ||
(c) | if section 242 (4) (c) applies, a written statement that complies with subsection (2) of this section. |
(a) | be signed by the beneficial owner on whose behalf dissent is being exercised, and | ||
(b) | set out whether or not the beneficial owner is the beneficial owner of other shares of the company and, if so, set out |
(i) | the names of the registered owners of those other shares, | ||
(ii) | the number, and the class and series, if applicable, of those other shares that are held by each of those registered owners, and | ||
(iii) | that dissent is being exercised in respect of all of those other shares. |
(a) | the dissenter is deemed to have sold to the company the notice shares, and | ||
(b) | the company is deemed to have purchased those shares, and must comply with section 245, whether or not it is authorized to do so by, and despite any restriction in, its memorandum or articles. |
(a) | promptly pay that amount to the dissenter, or | ||
(b) | if subsection (5) of this section applies, promptly send a notice to the dissenter that the company is unable lawfully to pay dissenters for their shares. |
(a) | determine the payout value of the notice shares of those dissenters who have not entered into an agreement with the company under subsection (1), or order that the payout value of those notice shares be established by arbitration or by reference to the registrar, or a referee, of the court, | ||
(b) | join in the application each dissenter, other than a dissenter who has entered into an agreement with the company under subsection (1), who has complied with section 244 (1), and | ||
(c) | make consequential orders and give directions it considers appropriate. |
(4) | Promptly after a determination of the payout value for notice shares has been made under subsection (2) (a) of this section, the company must |
I-5
(a) | pay to each dissenter who has complied with section 244 (1) in relation to those notice shares, other than a dissenter who has entered into an agreement with the company under subsection (1) of this section, the payout value applicable to that dissenter’s notice shares, or | ||
(b) | if subsection (5) applies, promptly send a notice to the dissenter that the company is unable lawfully to pay dissenters for their shares. |
(a) | the dissenter may, within 30 days after receipt, withdraw the dissenter’s notice of dissent, in which case the company is deemed to consent to the withdrawal and this Division, other than section 247, ceases to apply to the dissenter with respect to the notice shares, or | ||
(b) | if the dissenter does not withdraw the notice of dissent in accordance with paragraph (a) of this subsection, the dissenter retains a status as a claimant against the company, to be paid as soon as the company is lawfully able to do so or, in a liquidation, to be ranked subordinate to the rights of creditors of the company but in priority to its shareholders. |
(a) | the company is insolvent, or | ||
(b) | the payment would render the company insolvent. |
(a) | the corporate action approved or authorized, or to be approved or authorized, by the resolution or court order in respect of which the notice of dissent was sent is abandoned; | ||
(b) | the resolution in respect of which the notice of dissent was sent does not pass; | ||
(c) | the resolution in respect of which the notice of dissent was sent is revoked before the corporate action approved or authorized by that resolution is taken; | ||
(d) | the notice of dissent was sent in respect of a resolution adopting an amalgamation agreement and the amalgamation is abandoned or, by the terms of the agreement, will not proceed; | ||
(e) | the arrangement in respect of which the notice of dissent was sent is abandoned or by its terms will not proceed; | ||
(f) | a court permanently enjoins or sets aside the corporate action approved or authorized by the resolution or court order in respect of which the notice of dissent was sent; | ||
(g) | with respect to the notice shares, the dissenter consents to, or votes in favour of, the resolution in respect of which the notice of dissent was sent; | ||
(h) | the notice of dissent is withdrawn with the written consent of the company; | ||
(i) | the court determines that the dissenter is not entitled to dissent under this Division or that the dissenter is not entitled to dissent with respect to the notice shares under this Division. |
(a) | the company must return to the dissenter each of the applicable share certificates, if any, sent under section 244 (1) (b) or, if those share certificates are unavailable, replacements for those share certificates, |
I-6
(b) | the dissenter regains any ability lost under section 244 (6) to vote, or exercise or assert any rights of a shareholder, in respect of the notice shares, and | ||
(c) | the dissenter must return any money that the company paid to the dissenter in respect of the notice shares under, or in purported compliance with, this Division. |
I-7
The Altman Group Inc.
at the telephone numbers and location set out below:
1200 Wall Street West, 3rd Floor
Lyndhurst, NJ 07071
to accompany certificates for
common shares of
TO: | ASPREVA PHARMACEUTICALS CORPORATION | |
AND TO: | GALENICA CANADA LTD. | |
AND TO: | COMPUTERSHARE INVESTOR SERVICES INC. |
Number of Common | Certificate | |||||||||||
Name of Registered Shareholder | Shares Deposited | Number(s) | ||||||||||
* | The total number of Common Shares evidenced by all certificates delivered will be deemed to have been deposited. See Instruction 6. |
2
3
BLOCK C.
SEE INSTRUCTIONS BELOW.
BLOCK A | BLOCK B | |||||||||
PAYMENT INSTRUCTIONS | DELIVERY INSTRUCTIONS | |||||||||
ISSUE CHEQUE IN THE NAME OF: | SEND CHEQUE (Unless Block “C” is checked) | |||||||||
(please print) | TO: | |||||||||
(Name) | (Name) | |||||||||
(Street Address and Number) | (Street Address and Number) | |||||||||
(City and Province or State) | (City and Province or State) | |||||||||
(Country and Postal (Zip) Code) | (Country and Postal (Zip) Code) | |||||||||
(Telephone — Business Hours) | ||||||||||
(Social Insurance or Taxpayer Identification Number) | ||||||||||
BLOCK C PICK-UP INSTRUCTIONS | BLOCK D TO BE COMPLETED BY ALL SHAREHOLDERS BY SELECTING ONE BOX BELOW. | |||||||||
o | HOLD CHEQUE FOR PICK-UP AT THE OFFICE OF THE DEPOSITARY AT 100 UNIVERSITY AVENUE, 9™ FLOOR, TORONTO, ONTARIO, CANADA | Indicate whether you are a resident of Canada for Canadian tax purposes: | ||||||||
o | The owner signing below represents that it is a resident of Canada for Canadian tax purposes. | |||||||||
OR | ||||||||||
o | The owner signing below represents that it is not a resident of Canada for Canadian tax purposes. | |||||||||
DELIVERY INSTRUCTIONS
o | Mail certificate(s) to (please fill in address for mailing): |
o | Hold certificate(s) for pick-up at the office of the Depositary listed in Box C |
4
TO BE COMPLETED BY ALL SHAREHOLDERS BY SELECTING ONE BOX BELOW.
o | The owner signing below represents that it is not a U.S. Shareholder and is not acting on behalf of a U.S. Shareholder; |
o | The owner signing below represents that it is a U.S. Shareholder or is acting on behalf of a U.S. Shareholder. |
TO BE COMPLETED BY ALL SHAREHOLDERS
Signature guaranteed by | ||||
(if required under Instruction 3) | Date: , 200___ | |||
Authorized Signature of Guarantor | Signature of Shareholder or Authorized Representative - - See Instruction 4 | |||
Name of Guarantor (please print or type) | Name of Shareholder (please print or type) | |||
Address of Guarantor (please print or type) | Taxpayer Identification, Social Insurance or Social Security Number of Shareholder (please print or type) | |||
Name of Authorized Representative, if applicable (please print or type) | ||||
E-mail Address of Guarantor (please print or type) | Daytime telephone number of Shareholder or Authorized Representative | |||
Daytime facsimile number of Shareholder or Authorized Representative | ||||
E-mail Address of Shareholder or Authorized Representative |
5
TO BE COMPLETED BY U.S. SHAREHOLDERS (See “Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9” below) SUBSTITUTE Form W-9 Department of thePlease fill out your name and address below: Name:Treasury Internal Revenue Service Payer’s Request for Taxpayer Identification Number (TIN) |
Address (Number and street): |
City. State and Zip Code: |
Part 1 — PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND CERTIFY BY SIGNING AND DATING BELOW |
Social Security Number OR |
Employer Identification Number |
Part 2 — Awaiting TIN ExemptCERTIFICATION— UNDER PENALTIES OF PERJURY, I CERTIFY THAT: (1) The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and (2) I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (the “IRS”) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and (3) I am a U.S. citizen or other U.S. person (including a U.S. resident alien).CERTIFICATION INSTRUCTIONS— You must cross out item (2) above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. If you are exempt from backup withholding, check the “Exempt” box in Part 2. SIGNATURE DATE |
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 28 PERCENT OF ANY PAYMENT MADE TO YOU PURSUANT TO THE ARRANGEMENT. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. U.S. SHAREHOLDERS MUST COMPLETE THE FOLLOWING CERTIFICATE IF THEY CHECKED THE “AWAITING TIN” BOX IN PART 2 OF SUBSTITUTE FORM W-9. CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me and either (i) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (ii) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number to the payer by the time of payment, 28% of all reportable payments made to me will be withheld until I provide a number and that, if I do not provide my taxpayer identification number within 60 days, such retained amounts shall be remitted to the IRS as backup withholding. Signature Date |
6
1. | Use of the Letter of Transmittal | |
(a) | In order to permit the timely receipt of the cash proceeds payable in connection with the Arrangement, it is recommended that this Letter of Transmittal (or an originally signed facsimile copy thereof) together with accompanying certificate(s) representing the Deposited Shares be received by the Depositary at the office specified below before 5:00 p.m. (Toronto time) on December 14, 2007 or, in the case of any adjournment or postponement of the Meeting, no later than 5:00 p.m. (Vancouver time) on the business day before the reconvened Meeting. Do not send the certificates or the Letter of Transmittal to Aspreva or Galenica. | |
(b) | The method used to deliver this Letter of Transmittal and any accompanying certificates representing Deposited Shares is at the option and risk of the Shareholder, and delivery will be deemed effective only when such documents are actually received by the Depositary. Aspreva recommends that the necessary documentation be hand delivered to the Depositary at the office specified below, and a receipt obtained; otherwise the use of registered mail with return receipt requested, properly insured, is recommended. Shareholders whose Common Shares are registered in the name of a broker, investment dealer, bank, trust company or other nominee should contact that nominee for assistance in depositing those Common Shares. | |
2. | Signatures | |
This Letter of Transmittal must be completed, dated and signed by the holder of Common Shares or by such holder’s duly authorized representative (in accordance with Instruction 4). |
(a) | If this Letter of Transmittal is signed by the registered owner(s) of the accompanying certificate(s), such signature(s) on this Letter of Transmittal must correspond with the name(s) as registered or as written on the face of such certificate(s) without any change whatsoever, and the certificate(s) need not be endorsed. If such deposited certificate(s) are owned of record by two or more joint owners, all such owners must sign the Letter of Transmittal. | ||
(b) | If this Letter of Transmittal is signed by a person other than the registered owner(s) of the accompanying certificate(s), or if a cheque is to be issued to a person other than the registered owner(s): |
(i) | such deposited certificate(s) must be endorsed or be accompanied by appropriate share transfer power(s) of attorney duly and properly completed by the registered owner(s); and | ||
(ii) | the signature(s) on such endorsement or share transfer power(s) of attorney must correspond exactly to the name(s) of the registered owner(s) as registered or as appearing on the certificate(s) and must be guaranteed as noted in Instruction 3 below. |
(c) | If any of the Deposited Shares are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of Common Shares. |
7
3. | Guarantee of Signatures | |
No signature guarantee is required on this Letter of Transmittal if this Letter of Transmittal is signed by the registered owner(s) of the Deposited Shares. If this Letter of Transmittal is signed by a person other than the registered owner(s) of the Deposited Shares or if the payment is to be made in a name other than the registered owner(s), such signature must be guaranteed by an Eligible Institution (defined below), or in some other manner satisfactory to the Depositary (except that no guarantee is required if the signature is that of an Eligible Institution). | ||
An “Eligible Institution” means a Canadian Schedule I chartered bank, a major trust company in Canada, a member of the Securities Transfer Agent Medallion Program (STAMP), a member of the Stock Exchanges Medallion Program (SEMP) or a member of the New York Stock Exchange Inc. Medallion Signature Program (MSP). Members of these programs are usually members of a recognized stock exchange in Canada or the United States, members of the Investment Dealers Association of Canada, members of the National Association of Securities Dealers or banks and trust companies in the United States. | ||
4. | Fiduciaries, Representatives and Authorizations | |
Where this Letter of Transmittal or any share transfer power(s) of attorney is executed by a person as an executor, administrator, trustee or guardian, or on behalf of a corporation, partnership or association, or is executed by any other person acting in a representative or fiduciary capacity, such person should so indicate when signing and this Letter of Transmittal must be accompanied by satisfactory evidence of their proof of appointment and authority to act. Any of Aspreva, Galenica or the Depositary, at their discretion, may require additional evidence of appointment or authority or additional documentation. | ||
5. | Payment and Delivery Instructions | |
In all cases, either Block B or Block C should be completed and Block E entitled “Delivery Instructions” should be completed. If those blocks are not completed, the cheque for the Deposited Shares or the certificate(s) in respect of the Deposited Shares (if the Arrangement is not completed) will be mailed to the depositing Shareholder at the address of the Shareholders as it appears on the central securities register of Aspreva. | ||
6. | Miscellaneous |
(a) | If the space on this Letter of Transmittal is insufficient to list all certificates for Deposited Shares, additional certificate numbers and number of Deposited Shares may be included on a separate signed list affixed to this Letter of Transmittal. | ||
(b) | If Deposited Shares are registered in different forms (e.g. “John Doe” and “J. Doe”), a separate Letter of Transmittal should be signed for each different registration. | ||
(c) | No alternative, conditional or contingent deposits of Deposited Shares will be accepted. | ||
(d) | Additional copies of the Circular and the Letter of Transmittal may be obtained from the Depositary or at the office specified below. The Circular and the Letter of Transmittal are also available at the website maintained by The Canadian Depository for Securities Limitedwww.sedar.com. | ||
(e) | It is strongly recommended that prior to completing this Letter of Transmittal, the undersigned read the accompanying Circular and discuss any questions with a tax advisor. |
8
(f) | Aspreva and Galenica reserve the right, if either so elects in its absolute discretion, to instruct the Depositary to waive any defect or irregularity contained in the Letter of Transmittal received by it. | ||
(g) | This Letter of Transmittal will be construed in accordance with and governed by the laws of the Province of British Columbia and the laws of Canada applicable therein. |
7. | Lost Certificates | |
If a certificate representing the Common Shares has been lost, stolen or destroyed, this Letter of Transmittal should be completed as fully as possible and forwarded together with an affidavit by the person claiming such certificate to be lost, stolen or destroyed, to the Depositary. The Depositary will respond with the replacement requirements in order for you to receive your entitlement, which may include a requirement to provide a bond satisfactory to Aspreva and Galenica in such sum as Galenica may direct or otherwise indemnify Aspreva or Galenica in a manner satisfactory to Aspreva or Galenica against any claim that may be made against Aspreva and Galenica with respect to the certificate alleged to have been lost, stolen or destroyed. | ||
8. | Return of Certificates | |
If the Arrangement does not proceed for any reason, any certificate(s) for Deposited Shares received by the Depositary will be returned by you forthwith in accordance with your delivery instructions in Block E. If such Block is not completed, the certificate(s) in respect of the Deposited Shares (if the Arrangement is not completed) will be mailed to the Shareholder at the address of the Shareholder as it appears on the central securities register of Aspreva. | ||
9. | Privacy Notice | |
Computershare is committed to protecting your personal information. In the course of providing services to you and our corporate clients, we receive non-public personal information about you — from transactions we perform for you, forms you send us, other communications we have with you or your representatives, etc. This information could include your name, address, social insurance number, securities holdings and other financial information. We use this to administer your account, to better serve your and our clients’ needs and for other lawful purposes relating to our services. We have prepared aPrivacy Codeto tell you more about our information practices and how your privacy is protected. It is available at our website, computershare.com, or by writing us at 100 University Avenue, Toronto, Ontario, M5J 2Y1. Computershare will use the information you are providing on this form in order to process your request and will treat your signature(s) on this form as your consent to the above. | ||
10. | Backup Withholding and Information Reporting | |
Under U.S. federal income tax law, a Shareholder that exchanges Common Shares for cash pursuant to the Arrangement may be subject to backup withholding tax (currently imposed at a rate of 28%) on the cash received. Backup withholding tax is not an additional tax. A Shareholder subject to the backup withholding tax rules will be allowed a credit of the amount withheld against such Shareholder’s U.S. federal income tax liability and, if backup withholding tax results in an overpayment of U.S. federal income tax, such Shareholder may be entitled to a refund, provided that the requisite information is correctly furnished to the Internal Revenue Service in a timely manner. | ||
U.S. Shareholders | ||
To prevent backup withholding tax with respect to payments made to a U.S. Shareholder pursuant to the Arrangement, the U.S. Shareholder is required to timely notify the Depositary of the U.S. Shareholder’s |
9
taxpayer identification number (“TIN”) by completing the enclosed Substitute Form W-9, certifying that the TIN provided on that form is correct (or that such U.S. Shareholder is awaiting receipt of a TIN), and that (i) the U.S. Shareholder has not been notified by the Internal Revenue Service that the U.S. Shareholder is subject to backup withholding as a result of a failure to report all interest or dividends, or (ii) after being so notified, the Internal Revenue Service has notified the U.S. Shareholder that the U.S. Shareholder is no longer subject to backup withholding. | ||
If the Depositary is not timely provided with the correct TIN, such U.S. Shareholder may be subject to a $50 penalty imposed by the Internal Revenue Service and payments that are made to such U.S. Shareholder pursuant to the Arrangement may be subject to backup withholding. Each U.S. Shareholder is required to give the Depositary the TIN(e.g.,social security number or employer identification number) of the registered holder of the Common Shares. If the Common Shares are registered in more than one name or are not registered in the name of the actual owner, consult the enclosed “Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9” for additional guidance on which TIN to report. A U.S. Shareholder who does not have a TIN may write “Applied For” in Part 1 of the Substitute Form W-9 if such U.S. Shareholder has applied for a TIN or intends to apply for a TIN in the near future. If the U.S. Shareholder writes “Applied For” in Part 1 of the Substitute Form W-9, (i) the U.S. Shareholder must also complete the “Certificate of Awaiting Taxpayer Identification Number” in order to avoid backup withholding on payments made pursuant to the Arrangement and (ii) payments made will be subject to backup withholding unless the U.S. Shareholder has furnished the Depositary with his or her TIN by the time payment is made. A U.S. Shareholder who writes “Applied For” in Part 1 of the Substitute Form W-9 in lieu of furnishing a TIN should furnish the Depositary with the U.S. Shareholder’s TIN as soon as it is received. | ||
Certain U.S. Shareholders (including, among others, all corporations) are not subject to the backup withholding requirements described in this Instruction 10. To avoid possible erroneous backup withholding, a U.S. Shareholder that is exempt from backup withholding should complete the Substitute Form W-9 by providing its correct TIN, signing and dating the form, and checking the “Exempt” box in Part 2 of the form. | ||
Non-U.S. Shareholders | ||
A Shareholder who is not a U.S. person for U.S. federal income tax purposes should submit to the Depositary the appropriate Internal Revenue Service Form W-8. Generally, a foreign individual or a foreign corporation that is not a pass-through entity for U.S. federal income tax purposes and is not engaged in a trade or business within the U.S. would provide a Form W-8BEN. A foreign entity that is a pass-through entity for U.S. federal income tax purposes and is not engaged in a trade or business within the U.S. would generally provide a Form W-8BEN and/or a Form W-8IMY (which may require additional Forms W-8BEN for each of its beneficial owners), depending on its particular circumstances. A foreign individual or a foreign entity that is engaged in a trade or business within the U.S. may be required to provide a Form W-8ECI. Such Internal Revenue Service Forms W-8 will be provided to you by the Depositary upon request. | ||
All Shareholders are urged to consult their own tax advisors to determine whether they are exempt from these backup withholding and information reporting requirements and to determine which form should be used to avoid backup withholding. |
10
NUMBER ON SUBSTITUTE FORM W-9
Give the NAME and | ||||||
SOCIAL SECURITY or | Give the NAME and | |||||
EMPLOYER | EMPLOYER | |||||
IDENTIFICATION | IDENTIFICATION | |||||
For this type of account: | number of — | For this type of account: | number of — | |||
1. Individual | The individual | 6. A valid trust, estate, or pension trust | The legal entity4 | |||
2. Two or more individuals (joint account) | The actual owner of the account or, if combined funds, the first individual on the account1 | 7. Corporate or LLC electing corporate status on Form 8832 | The corporation | |||
3. Custodian account of a minor(Uniform Gift to Minors Act) | The minor2 | 8. Association, club, religious, charitable, educational, or other tax- exempt organization | The organization | |||
4. a. The usual revocable savings trust (grantor is also trustee) | The grantor- trustee1 | 9. Partnership or multi- member LLC | The partnership | |||
b. So-called trust account that is not a legal or valid trust under state law | The actual owner1 | 10. A broker or registered nominee | The broker or nominee | |||
5. Sole proprietorship or disregarded entity | The owner3 | 11. Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments | The public entity |
(1) | List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person’s number must be furnished. | |
(2) | Circle the minor’s name and furnish the minor’s SSN. | |
(3) | Show the name of the owner. Use either SSN or EIN. | |
(4) | List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the taxpayer identification number of the personal representative or trustee unless the legal entity itself is not designated in the account title.) |
11
NUMBER ON SUBSTITUTE FORM W-9 (PAGE 2)
(1) | An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2). | ||
(2) | The United States or any of its agencies or instrumentalities. | ||
(3) | A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities. | ||
(4) | A foreign government or any of its political subdivisions, agencies, or instrumentalities. | ||
(5) | An international organization or any of its agencies or instrumentalities. |
(6) | A corporation. | ||
(7) | A foreign central bank of issue. | ||
(8) | A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States. | ||
(9) | A futures commission merchant registered with the Commodity Futures Trading Commission. | ||
(10) | A real estate investment trust. | ||
(11) | An entity registered at all times during the tax year under the Investment Company Act of 1940. | ||
(12) | A common trust fund operated by a bank under section 584(a). | ||
(13) | A financial institution. | ||
(14) | A middleman known in the investment community as a nominee or custodian. | ||
(15) | A trust exempt from tax under section 664 or described in section 4947. |
12
13
14
15
31 Adelaide St E
Toronto, Ontario
M5C 3H2
Canada
100 University Avenue
Toronto, Ontario
M5J 2Y1
Canada
Phone: 514-982-7555
E-mail: corporateactions@computershare.com
16
of
TO: | ASPREVA PHARMACEUTICALS CORPORATION | |
AND TO: | GALENICA CANADA LTD. | |
AND TO: | COMPUTERSHARE INVESTOR SERVICES INC. |
Number of Common | |||||||||||
Name of | Shares Underlying the | ||||||||||
Optionholder | Date of Grant | Options | Exercise Price | ||||||||
2
3
SEE INSTRUCTIONS BELOW.
BLOCK A | BLOCK B | ||||||||||
PAYMENT INSTRUCTIONS | DELIVERY INSTRUCTIONS | ||||||||||
ISSUE CHEQUE IN THE NAME OF: (please print) | SEND CHEQUE (Unless Block “C” is checked) TO: | ||||||||||
(Name) | (Name) | ||||||||||
(Street Address and Number) | (Street Address and Number) | ||||||||||
(City and Province or State) | (City and Province or State) | ||||||||||
(Country and Postal (Zip) Code) | (Country and Postal (Zip) Code) | ||||||||||
(Telephone — Business Hours) | |||||||||||
(Social Insurance or Taxpayer Identification Number) | |||||||||||
BLOCK C | BLOCK D | ||||||||||
PICK-UP INSTRUCTIONS | TO BE COMPLETED BY ALL | ||||||||||
OPTIONHOLDERS BY SELECTING ONE | |||||||||||
o HOLD CHEQUE FOR PICK-UP AT THE OFFICE OF THE DEPOSITARY AT 100 UNIVERSITY AVENUE, 9™ FLOOR, | BOX BELOW. Indicate whether you are a resident of Canada for Canadian tax purposes: | ||||||||||
TORONTO, ONTARIO, CANADA | o The owner signing below represents that it is a resident of Canada for Canadian tax purposes. | ||||||||||
OR | |||||||||||
o The owner signing below represents that it is not a resident of Canada for Canadian tax purposes. | |||||||||||
4
TO BE COMPLETED BY ALL OPTIONHOLDERS BY SELECTING ONE BOX BELOW.
o | The owner signing below represents that it is not a U.S. Optionholder and is not acting on behalf of a U.S. Optionholder; |
o | The owner signing below represents that it is a U.S. Optionholder or is acting on behalf of a U.S. Optionholder. |
OPTIONHOLDER SIGNATURE
5
1. | Use of the Letter of Transmittal |
(a) | In order to permit the timely receipt of the cash proceeds payable in connection with the Arrangement, it is recommended that this Letter of Transmittal (or an originally signed facsimile copy thereof) must be received by the Depositary at the office specified below before 5:00 p.m. (Toronto time) on December 14, 2007 or, in the case of any adjournment or postponement of the Meeting, no later than 5:00 p.m. (Vancouver time) on the business day before the reconvened Meeting. Do not send the Letter of Transmittal to Aspreva or Galenica. | ||
(b) | The method used to deliver this Letter of Transmittal is at the option and risk of the Optionholder, and delivery will be deemed effective only when such documents are actually received by the Depositary. Aspreva recommends that the necessary documentation be hand delivered to the Depositary at the office specified below, and a receipt obtained; otherwise the use of registered mail with return receipt requested, properly insured, is recommended. |
2. | Signatures | |
This Letter of Transmittal must be completed, dated and signed by the holder of Options or by such holder’s duly authorized representative (in accordance with Instruction 3). | ||
3. | Fiduciaries, Representatives and Authorizations | |
Where this Letter of Transmittal or any share transfer power(s) of attorney is executed by a person as an executor, administrator, trustee or guardian, or on behalf of a corporation, partnership or association, or is executed by any other person acting in a representative or fiduciary capacity, such person should so indicate when signing and this Letter of Transmittal must be accompanied by satisfactory evidence of their proof of appointment and authority to act. Any of Aspreva, Galenica or the Depositary, at their discretion, may require additional evidence of appointment or authority or additional documentation. | ||
4. | Payment and Delivery Instructions | |
In all cases, either Block B or Block C should be completed. If those blocks are not completed, the cheque for the Options will be mailed to the depositing Optionholder at the address of the Optionholder as it appears on the securities register of Aspreva. | ||
5. | Miscellaneous |
(a) | If the space on this Letter of Transmittal is insufficient to list all Options granted, additional number of Options may be included on a separate signed list affixed to this Letter of Transmittal. | ||
(b) | Additional copies of the Circular and the Letter of Transmittal may be obtained from the Depositary or at the office specified below. The Circular and the Letter of Transmittal are also available at the website maintained by The Canadian Depository for Securities Limitedwww.sedar.com. |
6
(c) | It is strongly recommended that prior to completing this Letter of Transmittal, the undersigned read the accompanying Circular and discuss any questions with a tax advisor. | ||
(d) | Aspreva and Galenica reserve the right, if either so elects in its absolute discretion, to instruct the Depositary to waive any defect or irregularity contained in the Letter of Transmittal received by it. | ||
(e) | This Letter of Transmittal will be construed in accordance with and governed by the laws of the Province of British Columbia and the laws of Canada applicable therein. |
6. | Privacy Notice | |
Computershare is committed to protecting your personal information. In the course of providing services to you and our corporate clients, we receive non-public personal information about you -from transactions we perform for you, forms you send us, other communications we have with you or your representatives, etc. This information could include your name, address, social insurance number, securities holdings and other financial information. We use this to administer your account, to better serve your and our clients’ needs and for other lawful purposes relating to our services. We have prepared aPrivacy Codeto tell you more about our information practices and how your privacy is protected. It is available at our website, computershare.com, or by writing us at 100 University Avenue, Toronto, Ontario, M5J 2Y1. Computershare will use the information you are providing on this form in order to process your request and will treat your signature(s) on this form as your consent to the above. |
7
31 Adelaide St E
Toronto, Ontario
M5C 3H2
Canada
100 University Avenue
Toronto, Ontario
M5J 2Y1
Canada
Phone: 514-982-7555
E-mail: corporateactions@computershare.com
8