SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13E-3
RULE 13e-3 TRANSACTION STATEMENT
UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934
HEMOSOL INC.
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(Name of the Issuer)
HEMOSOL INC.
MDS INC.
MDS LABORATORY SERVICES INC.
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(Names of Persons Filing Statement)
COMMON SHARES
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(Title of Class of Securities)
42369K102
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(CUSIP Number of Class of Securities)
LEE D. HARTWELL PETER E. BRENT BRADLEY G. LEGGE
HEMOSOL INC. MDS INC. MDS LABORATORY SERVICES INC.
2585 MEADOWPINE BOULEVARD 100 INTERNATIONAL BOULEVARD 100 INTERNATIONAL BOULEVARD
MISSISSAUGA, ONTARIO TORONTO, ONTARIO TORONTO, ONTARIO
CANADA L5N 8H9 CANADA M9W 6J6 CANADA M9W 6J6
905-286-6200 416-675-6777 416-675-6777
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(Name, Address and Telephone Numbers of Person Authorized to
Receive Notices and Communications on Behalf of the Persons Filing Statement)
Copy of communications to:
JEFFREY NADLER, ESQ. CHRISTOPHER W. MORGAN, ESQ.
WEIL, GOTSHAL & MANGES LLP SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
767 FIFTH AVENUE 222 BAY STREET, SUITE 1750
NEW YORK, NEW YORK 10153 TORONTO, ONTARIO
212-310-8000 CANADA M5K 1J5
416-777-4700
This Statement is filed in connection with:
a./_/ The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities
Exchange Act of 1934.
b./_/ The filing of a registration statement under the Securities Act of
1933.
c./_/ A tender offer.
d./X/ None of the above.
Check the following box if the soliciting material or information statement
referred to in checking box (a) are preliminary copies: / /
Check the following box if the filing is a final amendment reporting the results
of the transaction: /__/
CALCULATION OF FILING FEE
================================================================================
Transaction Valuation* Amount of Filing Fee**
- --------------------------------------------------------------------------------
$3,478,219.04 $696.00
================================================================================
* Estimated solely for purposes of computing the filing fee. The transaction
valuation was based on the product of (i) the 7% equity interest in Hemosol
being acquired by MDS pursuant to the Arrangement described herein (equal to
3,930,191 shares based on 56,145,582 Hemosol common shares outstanding as of
March 10, 2004, and (ii) $0.885, the average of the high and low prices reported
for Hemosol common shares on the Nasdaq National Market on March 17, 2004.
** The amount of the filing fee, calculated in accordance with Rule 0-11(b) of
the Securities Exchange Act of 1934, equals 1/50 of 1% of the transaction
valuation.
/_/ Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: Form or Registration No.:
Filing Party: Date Filed:
This Rule 13e-3 Transaction Statement on Schedule 13E-3 (the
"Transaction Statement") filed pursuant to Section 13(e) of the Securities
Exchange Act of 1934, as amended, relates to a proposed arrangement involving
Hemosol Inc. ("Hemosol"), its securityholders and MDS Inc. ("MDS"), upon the
terms and conditions provided for in the Arrangement Agreement, attached hereto
as Exhibit (d)(i). This Transaction Statement is being filed by Hemosol Inc.,
the subject company, and MDS Inc. and MDS Laboratory Services Inc., affiliates
of the subject company. Any capitalized terms used in this Transaction Statement
that are not defined in this Transaction Statement shall be as defined in the
Notice of Annual and Special Meeting and Management Information Circular of
Hemosol Inc. (excluding the Auditors' Consent set forth on page 124 thereto, the
"Management Information Circular"), attached hereto as Exhibit (a)(3)(i).
Hemosol will submit to its shareholders for approval at the
Annual and Special Meeting (the "Meeting") to be held on April 20, 2004 a
resolution (the "Arrangement Resolution") approving the Arrangement. In order
for the Arrangement to be implemented, the Arrangement Resolution must be passed
by:
- at least two-thirds of all the votes cast by Securityholders
voting together as a single class, in person or by proxy, at the
Meeting; and
- a majority of all the votes cast by Minority Shareholders voting,
in person or by proxy, at the Meeting.
If the Arrangement is approved, on the Effective Date:
- Shareholders will receive one New Hemosol Share and one Labco
Class A Share for each Hemosol Share that they held immediately
prior to the Effective Time, and the Hemosol Shares will cease to
exist;
- each Hemosol Convertible Security will become a New Hemosol
Convertible Security with terms identical to the relevant Hemosol
Convertible Security, other than a reduction of the exercise price
by $0.04; and
- each Hemosol Option will be cancelled and replaced with a New
Hemosol Option having vesting and exercise terms identical to
those of the cancelled Hemosol Option and an exercise price equal
to the exercise price of such cancelled Hemosol Option less $0.04,
except that holders of Hemosol Options that so consent will only
receive New Hemosol Options in respect of cancelled Hemosol
Options that are Specified Hemosol Options and will not receive
any New Hemosol Options in respect of cancelled Hemosol Options
that are not Specified Hemosol Options.
In addition, the New Hemosol Shares will be deemed to be
registered under Section 12(g) of the U.S. Exchange Act pursuant to Rule
12g-3(a) of the U.S. Exchange Act.
The terms of the Arrangement are summarized in the Management
Information Circular under "Summary Term Sheet", "Summary - Effects of the
Arrangement", "Summary - The Arrangement" and "The Arrangement".
The Management Information Circular setting out the terms of
the Arrangement will be sent to shareholders of Hemosol pursuant to the Business
Corporations Act (Ontario) and the securities acts of all the provinces of
Canada.
The information contained in the Management Information
Circular, including all Schedules and Annexes thereto (but excluding the
Auditors' Consent set forth on page 124 thereto), is expressly incorporated
herein by reference, and responses to each items herein are qualified in their
entirety by reference to the information contained in the Management Information
Circular and the Schedules and Annexes thereto.
The information contained or incorporated by reference in this
Transaction Statement concerning MDS and MDS Subco, their respective directors,
officers and affiliates or the Labs Business is based solely upon information
provided to Hemosol by MDS or upon publicly available information. With respect
to this information,
the Hemosol Board has relied exclusively upon MDS, without independent
verification by Hemosol. With respect to any statements made in this Transaction
Statement by either MDS or MDS Subco which relate to Hemosol, its directors,
officers and affiliates (other than MDS and MDS Subco and their directors and
officers), MDS and MDS Subco have relied exclusively upon Hemosol, without
independent verification.
SPECIAL FACTORS
THE INFORMATION CONTAINED IN ITEMS 7, 8 AND 9
HEREOF CONSTITUTES SPECIAL FACTORS, AND
SPECIAL CONSIDERATION SHOULD BE GIVEN THERETO.
3
ITEM 1. SUMMARY TERM SHEET.
Regulation M-A
Item 1001
The information set forth in the Management Information
Circular under "Summary Term Sheet" is incorporated herein by
reference. The Management Information Circular has been filed
as Exhibit (a)(3)(i) to this Schedule 13E-3.
ITEM 2. SUBJECT COMPANY INFORMATION.
Regulation M-A
Item 1002
(a) The information set forth in the Management Information
Circular in the second paragraph under "Hemosol Prior to the
Arrangement" is incorporated herein by reference.
(b) The securities which are the subject of the Rule 13e-3
transaction are the Hemosol Shares. The information set forth
in the Management Information Circular under "General Proxy
Matters - Voting Securities and Principal Holders Thereof" is
incorporated herein by reference.
(c) The information set forth in the Management Information
Circular under "Hemosol Prior to the Arrangement - Price Range
and Trading Volume of Hemosol Shares" is incorporated herein
by reference.
(d) The information set forth in the Management Information
Circular under "Hemosol Prior to the Arrangement - Dividend
Policy" and "Labco After the Arrangement - Description of
Share Capital" is incorporated herein by reference.
(e) The information set forth in the Management Information
Circular under "Hemosol Prior to the Arrangement - Previous
Distributions" is incorporated herein by reference.
(f) Not applicable.
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ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
Regulation M-A
Item 1003
(a)-(c) This Schedule 13e-3 is being filed by Hemosol, MDS Inc. and
MDS Subco. Hemosol is the subject company for purposes of
Schedule 13e-3. The information set forth in the Management
Information Circular in the second paragraph under "Hemosol
Prior to the Arrangement", "The Labs Partnership After the
Arrangement", the third paragraph under "Special Factors -
Background to the Arrangement", the second paragraph under
Special Factors - Reasons Why MDS and MDS Subco Consider the
Arrangement to be Fair to Non-MDS Securityholders" and in
Annexes K and L is incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION.
Regulation M-A
Item 1004
(a) The information set forth in the Management Information
Circular under "The Arrangement", "New Hemosol After the
Arrangement - Share Capital", "Labco After the Arrangement -
Share Capital" and "Income Tax Considerations" is incorporated
herein by reference.
(a)(2)(i) The information set forth in the Management Information
Circular under "Summary - Effects of the Arrangement",
"Summary - The Arrangement" and "Summary - Pre- and
Post-Arrangement Organizational Structure" is incorporated
herein by reference.
(a)(2)(ii) The information set forth in the Management Information
Circular under "Summary - Effects of the Arrangement" and "The
Arrangement - Transaction Steps Under the Plan of Arrangement"
is incorporated herein by reference.
(a)(2)(iii) The information set forth in the Management Information
Circular under "Summary - Background and Reasons for the
Arrangement", "Special Factors - Purpose of the Arrangement",
"Special Factors - Background to the Arrangement" and "Special
Factors - Reasons for the Arrangement" is incorporated herein
by reference.
(a)(2)(iv) The information set forth in the Management Information
Circular under "Summary Term Sheet - Securityholder Approval",
"Summary - Securityholder Approvals for the Arrangement" and
"The Arrangement - Securityholder Approvals" is incorporated
herein by reference.
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(a)(2)(v) The information set forth in the Management Information
Circular under "The Arrangement - Transaction Steps Under the
Plan of Arrangement", "The Arrangement - Treatment of Hemosol
Convertible Securities in Connection with the Arrangement",
"The Arrangement - Treatment of Hemosol Options in Connection
with the Arrangement", "Labco After the Arrangement -
Description of Share Capital" and "Regulatory Matters -
Securities Law Matters" is incorporated herein by reference.
(a)(2)(vi) The information set forth in the Management Information
Circular under "The Arrangement - Accounting Treatment of the
Arrangement" is incorporated herein by reference.
(a)(2)(vii) The information set forth in the Management Information
Circular under "Income Tax Considerations" is incorporated
herein by reference.
(c) The information set forth in the Management Information
Circular under "The Arrangement - Transaction Steps Under the
Plan of Arrangement", "The Arrangement - Treatment of Hemosol
Convertible Securities in Connection with the Arrangement",
"The Arrangement - Treatment of Hemosol Options in Connection
with the Arrangement", "Labco After the Arrangement - Share
Capital" and "Regulatory Matters - Securities Law Matters" is
incorporated herein by reference.
(d) The information set forth in the Management Information
Circular under "Summary Term Sheet - No Dissent Rights" and
"The Arrangement - Court Approval" is incorporated herein by
reference.
(e) No provision has been made by Hemosol, MDS or MDS Subco in
connection with the Arrangement to grant unaffiliated
Securityholders of Hemosol access to the corporate files of
Hemosol, MDS or MDS Subco or to obtain counsel or appraisal
services at the expense of Hemosol, MDS or MDS Subco.
(f) The information set forth in the Management Information
Circular under "The Arrangement - Toronto Stock Exchange and
NASDAQ Listings" is incorporated herein by reference.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
Regulation M-A
Item 1005
(a) The information set forth in the Management Information
Circular under "Hemosol Prior to the Arrangement - Credit
Facility" and "Hemosol Prior to the Arrangement - Clinical
Trial Support Services" is incorporated
6
herein by reference.
(b)and(c) The information set forth in the Management Information
Circular under "The Arrangement - Interests of Certain Persons
in the Arrangement", "Hemosol Prior to the Arrangement -
Significant Corporate Transactions", "Special Factors -
Background to the Arrangement", "Special Factors -
Alternatives Considered", "Special Factors - Reasons for the
Arrangement", "Special Factors - Recommendation of the
Independent Committee" and "Special Factors - Recommendation
of the Hemosol Board" is incorporated herein by reference.
(e) The information set forth in the Management Information
Circular under "The Arrangement", "Hemosol Prior to the
Arrangement - Strategic Alliance with ProMetic", "Hemosol
Prior to the Arrangement - Credit Facility" and "Hemosol Prior
to the Arrangement - Special Warrant Offering" is incorporated
herein by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
Regulation M-A
Item 1006
(b) The information set forth in the Management Information
Circular under "The Arrangement - Transaction Steps Under the
Plan of Arrangement" is incorporated herein by reference.
(c)(1)-(8) The information set forth in the Management Information
Circular under "New Hemosol After The Arrangement", "The
Arrangement - Toronto Stock Exchange and NASDAQ Listings",
"The Arrangement - Distribution of Share Certificates", "Labco
After the Arrangement", "The Blood Products Partnership After
the Arrangement" and "The Labs Partnership After the
Arrangement" is incorporated herein by reference.
ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS.
Regulation M-A
Item 1013
(a) The information set forth in the Management Information
Circular under "Special Factors - Purpose of the Arrangement"
and "Special Factors - Background to the Arrangement" is
incorporated herein by reference.
(b) The information set forth in the Management Information
Circular under "Special Factors - Alternatives Considered" is
incorporated herein by
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reference.
(c) The information set forth in the Management Information
Circular under "Special Factors - Reasons for the Arrangement"
is incorporated herein by reference.
(d) The information set forth in the Management Information
Circular under "Special Factors - Effects of the Arrangement",
"The Arrangement - Transaction Steps Under the Plan of
Arrangement", "The Arrangement - Post Arrangement
Organizational Structure", "The Arrangement - Treatment of
Hemosol Convertible Securities in Connection with the
Arrangement", "The Arrangement - Treatment of Hemosol Options
in Connection with the Arrangement", "The Arrangement -
Distribution of Share Certificates", "New Hemosol After the
Arrangement", "Labco After the Arrangement", "The Blood
Products Partnership After the Arrangement", "The Labs
Partnership After the Arrangement" and "Income Tax
Considerations" is incorporated herein by reference.
ITEM 8. FAIRNESS OF THE TRANSACTION.
Regulation M-A
Item 1014
(a) The information set forth in the Management Information
Circular under "Special Factors - Recommendation of the
Independent Committee", "Special Factors - Recommendation of
the Hemosol Board" and "Special Factors - Reasons Why MDS and
MDS Subco Consider the Arrangement to be Fair to Non-MDS
Securityholders" is incorporated herein by reference.
(b) The information set forth in the Management Information
Circular under "Special Factors - Recommendation of the
Independent Committee", "Special Factors - Recommendation of
the Hemosol Board" and "Special Factors - Reasons Why MDS and
MDS Subco Consider the Arrangement to be Fair to Non-MDS
Securityholders" is incorporated herein by reference.
(c) The information set forth in the Management Information
Circular under "Summary Term Sheet - Securityholder Approval",
"Summary - Securityholder Approvals for the Arrangement", "The
Arrangement - Securityholder Approvals" and "Regulatory
Matters - OSC Rule 61-501 and AMF Policy Q-27 - Minority
Approval" is incorporated herein by reference.
(d) The majority of directors who are not employees of Hemosol did
not retain an unaffiliated representative to act solely on
behalf of unaffiliated security
8
holders for purposes of negotiating the terms of the Rule
13e-3 transaction and/or preparing a report concerning the
fairness of the transaction. However, the Board of Directors
of Hemosol did form an Independent Committee for the purposes
set forth in the Management Information Circular under
"Special Factors - Background to the Arrangement", which is
incorporated herein by reference.
(e) The information set forth in the Management Information
Circular under "Special Factors - Recommendation of the
Hemosol Board" is incorporated herein by reference.
(f) Hemosol has not received any firm offer from any unaffiliated
person during the past two years for any merger or
consolidation of Hemosol, the sale or other transfer of all or
any substantial part of the assets of Hemosol, or any purchase
of Hemosol's securities that would enable the purchaser to
exercise control of Hemosol. This disclosure is set forth in
the Management Information Circular under "Special Factors -
Recommendation of the Independent Committee", which is
incorporated herein by reference.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS.
Regulation M-A
Item 1015
(a) The information set forth in the Management Information
Circular under "Special Factors - KPMG Fairness Opinion",
"Special Factors - Management Projections" and "Special
Factors - Draft Report of PricewaterhouseCoopers LLP" is
incorporated herein by reference.
(b) The information set forth in the Management Information
Circular under "Special Factors - Background to the
Arrangement", "Special Factors - KPMG Fairness Opinion" and
"Special Factors - Draft Report of PricewaterhouseCoopers LLP"
is incorporated herein by reference.
(c)(1) The KPMG Fairness Opinion is attached as Annex E to the
Management Information Circular and is attached as Exhibit
(c)(i) hereto. The KPMG Fairness Opinion will be made
available for inspection and copying at the principal
executive offices of Hemosol during its regular business hours
by any interested equity holder of Hemosol or representative
who has been so designated in writing.
(c)(2) The PwC Draft Report is attached as Exhibit (c)(iii) hereto.
The PwC Draft Report will be made available for inspection and
copying at the principal executive offices of MDS during its
regular business hours by any interested equity holder of
Hemosol or representative who has been so
9
designated in writing.
ITEM 10. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
Regulation M-A
Item 1007
(a) The information set forth in the Management Information
Circular under "The Arrangement - Source of Funds" is
incorporated herein by reference.
(b) Not applicable.
(c) The information set forth in the Management Information
Circular under "The Arrangement - Expenses of the Arrangement"
is incorporated herein by reference.
(d) The information set forth in the Management Information
Circular under "The Arrangement - Source of Funds" is
incorporated herein by reference.
ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
Regulation M-A
Item 1008
(a) The information set forth in the Management Information
Circular under "Hemosol Prior to the Arrangement - Ownership
of Securities" and "General Proxy Matters - Voting Securities
and Principal Holders Thereof" is incorporated herein by
reference.
(b) The information set forth in the Management Information
Circular under "Hemosol Prior to the Arrangement - Securities
Transactions" is incorporated herein by reference.
ITEM 12. THE SOLICITATION OR RECOMMENDATION.
Regulation M-A
Item 1012
(d) The information set forth in the Management Information
Circular under "The Arrangement - Agreement of MDS to Vote in
Favour of the Arrangement" and "The Arrangement - Interests of
Certain Persons in the Arrangement" is incorporated herein by
reference.
10
(e) The information set forth in the Management Information
Circular under "Special Factors - Recommendation of the
Hemosol Board", "Special Factors - Reasons Why MDS and MDS
Subco Consider the Arrangement to be Fair to Non-MDS
Securityholders" and "The Arrangement - Interests of Certain
Persons in the Arrangement" is incorporated herein by
reference.
ITEM 13. FINANCIAL STATEMENTS.
Regulation M-A
Item 1010
The Management Information Circular contains the summarized
financial information required by Item 1010(c) of Regulation
M-A instead of the financial information required by Item
1010(a) and (b). Financial information required by Item
1010(a) and (b) of Regulation M-A is disclosed or incorporated
by reference herein.
(a)(1) See Exhibit (a)(5)(i) hereto.
(a)(2)-(3) Not applicable.
(a)(4) The information set forth in the Management Information
Circular under "Annex G - Summary Historical Financial
Information for Hemosol" is incorporated herein by reference.
(b)(1)-(3) The information set forth in the Management Information
Circular under "Annex I - Pro Forma Financial Statements for
New Hemosol" and "Annex J - Pro Forma Financial Statements for
Labco" is incorporated herein by reference.
(c)(1)-(3) The information set forth in the Management Information
Circular under "Annex G - Summary Historical Financial
Information for Hemosol" is incorporated herein my reference.
(c)(4) Not Applicable.
(c)(5) The information set forth in the Management Information
Circular under "Annex G - Summary Historical Financial
Information for Hemosol" is incorporated herein my reference.
(c)(6) The information set forth in the Management Information
Circular under "Annex I - Pro Forma Financial Statements for
New Hemosol" and "Annex J - Pro Forma Financial Statements for
Labco" is incorporated herein by reference.
11
ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
Regulation M-A
Item 1009
(a) The information set forth in the Management Information
Circular under "General Proxy Matters - Solicitation of
Proxies" is incorporated herein by reference.
(b) Not applicable.
ITEM 15. ADDITIONAL INFORMATION.
Regulation M-A
Item 1011
(b) The Management Information Circular contains other information
that may be of interest to Hemosol's shareholders.
ITEM 16. EXHIBITS.
Regulation M-A
Item 1016
(a)(2)(a) Press Release of Hemosol, dated February 12, 2004
(a)(2)(b) Press Release of MDS, dated February 12, 2004
(a)(3)(i) Notice of Annual and Special Meeting and Management
Information Circular of Hemosol Inc., dated March 10, 2004*
(a)(3)(ii) Form of Proxy for Shareholders
(a)(3)(iii) Form of Proxy for Eligible Convertible Securityholders
(a)(5)(i) Audited consolidated balance sheets of Hemosol as at December
31, 2003 and 2002 and the accompanying audited consolidated
statements of loss, deficit and cash flows for each of the
years in the three-year period ended December 31, 2003,
including the notes thereto and the report of the auditors
thereon
(a)(5)(ii) Annual Information Form of Hemosol, dated May 27, 2003
(a)(5)(iii) Balance Sheet of New Hemosol and the report of the auditors
thereon(incorporated herein by reference to Annex H of the
Notice of Annual and
12
Special Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(a)(5)(iv) Pro Forma Financial Statements for New Hemosol (incorporated
herein by reference to Annex I of the Notice of Annual and
Special Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(a)(5)(v) Pro Forma Financial Statements for Labco (incorporated herein
by reference to Annex J of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(b) Not applicable.
(c)(i) Fairness Opinion by KPMG to the Independent Committee of the
Board of Directors of Hemosol Inc., dated February 11, 2004
(incorporated herein by reference to Annex E of the Notice of
Annual and Special Meeting and Management Information Circular
(Exhibit (a)(3)(i))
(c)(ii) Draft Materials for KPMG financial presentation to the Hemosol
Board
(c)(iii) PwC Draft Report
(d)(i) Arrangement Agreement, dated as of February 11, 2004, between
Hemosol and MDS (incorporated herein by reference to Annex D
of the Notice of Annual and Special Meeting and Management
Information Circular (Exhibit (a)(3)(i))
(d)(ii) Blood Products Contribution Agreement**
(d)(iii) Blood Products Partnership Agreement (incorporated herein by
reference to Exhibit 5 to Annex D of the Notice of Annual and
Special Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(d)(iv) Blood Products Security Agreements**
(d)(v) BPP Guarantee**
(d)(vi) Escrow Agreement**
(d)(vii) Amended and Restated Stock Option Plan of Hemosol, dated
December 7, 2000
(d)(viii) Hemosol Stock Option Plan Amendment
(d)(ix) Warrant Indenture, dated November 28, 2003, between Hemosol
and Computershare
(d)(x) Labco Indemnity Agreement (incorporated herein by reference to
Exhibit 12 to Annex D of the Notice of Annual and Special
Meeting and
13
Management Information Circular (Exhibit (a)(3)(i))
(d)(xi) Labs Contribution Agreement**
(d)(xii) Labs Management Agreement (incorporated herein by reference to
Exhibit 8 to Annex D of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(d)(xiii) Labs Partnership Agreement (incorporated herein by reference
to Exhibit 7 to Annex D of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(d)(xiv) Letter of Understanding between MDS and Hemosol, accepted and
agreed to by Hemosol on October 31, 2003, as amended
(d)(xv) MDS Guarantee
(d)(xvi) MDS Indemnity Agreement (incorporated herein by reference to
Exhibit 13 to Annex D of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(d)(xvii) Memorandum of Understanding between MDS and Hemosol, dated
October 22, 2002, as amended on December 23, 2003.
(d)(xviii) New Hemosol MOU**
(d)(xix) New Hemosol Stock Option Plan (incorporated herein by
reference to Annex F of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(d)(xx) Warrant Certificate, dated November 22, 2002, relating to the
Tranche A Warrants
(d)(xxi) Partnership Interest Transfer Agreement**
(d)(xxii) Consent of Ernst & Young LLP
(f) Not applicable
(g) Not applicable
- ------------------
* The Auditors' Consent set forth on page 124 of this exhibit shall not
be deemed to be filed as part of this exhibit. In lieu of such consent, Ernst &
Young LLP has provided the consent set forth as Exhibit (d)(xxii) hereto.
** To be filed by amendment.
14
SIGNATURE
After due inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
Dated: March 19, 2004
HEMOSOL INC.
By: /s/ LEE D. HARTWELL
------------------------------------
Name: Lee D. Hartwell
Title: President, Chief Executive
Officer and Chief Financial
Officer
MDS INC.
By: /s/ JOHN ROGERS
------------------------------------
Name: John Rogers
Title: President and Chief Executive
Officer
MDS LABORATORY SERVICES INC.
By: /s/ BRADLEY G. LEGGE
----------------------------
Name: Bradley G. Legge
Title: Director
EXHIBIT INDEX
EXHIBIT DESCRIPTION
------- -----------
(a)(2)(a) Press Release of Hemosol, dated February 12, 2004
(a)(2)(b) Press Release of MDS, dated February 12, 2004
(a)(3)(i) Notice of Annual and Special Meeting and Management
Information Circular of Hemosol Inc., dated March 10, 2004*
(a)(3)(ii) Form of Proxy for Shareholders
(a)(3)(iii) Form of Proxy for Eligible Convertible Securityholders
(a)(5)(i) Audited consolidated balance sheets of Hemosol as at December
31, 2003 and 2002 and the accompanying audited consolidated
statements of loss, deficit and cash flows for each of the
years in the three-year period ended December 31, 2003,
including the notes thereto and the report of the auditors
thereon
(a)(5)(ii) Annual Information Form of Hemosol, dated May 27, 2003
(a)(5)(iii) Balance Sheet of New Hemosol and the report of the auditors
thereon (incorporated herein by reference to Annex H of the
Notice of Annual and Special Meeting and Management
Information Circular (Exhibit (a)(3)(i))
(a)(5)(iv) Pro Forma Financial Statements for New Hemosol (incorporated
herein by reference to Annex I of the Notice of Annual and
Special Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(a)(5)(v) Pro Forma Financial Statements for Labco (incorporated herein
by reference to Annex J of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(b) Not applicable.
(c)(i) Fairness Opinion by KPMG to the Independent Committee of the
Board of Directors of Hemosol Inc., dated February 11, 2004
(incorporated herein by reference to Annex E of the Notice of
Annual and Special Meeting and Management Information Circular
(Exhibit (a)(3)(i))
(c)(ii) Draft Materials for KPMG financial presentation to the Hemosol
Board
(c)(iii) PwC Draft Report
(d)(i) Arrangement Agreement, dated as of February 11, 2004, between
Hemosol and MDS (incorporated herein by reference to Annex D
of the Notice of Annual and Special Meeting and Management
Information Circular (Exhibit (a)(3)(i))
(d)(ii) Blood Products Contribution Agreement**
(d)(iii) Blood Products Partnership Agreement (incorporated herein by
reference to Exhibit 5 to Annex D of the Notice of Annual and
Special Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(d)(iv) Blood Products Security Agreements**
(d)(v) BPP Guarantee**
(d)(vi) Escrow Agreement**
(d)(vii) Amended and Restated Stock Option Plan of Hemosol, dated
December 7, 2000
(d)(viii) Hemosol Stock Option Plan Amendment
(d)(ix) Warrant Indenture, dated November 28, 2003, between Hemosol
and Computershare
(d)(x) Labco Indemnity Agreement (incorporated herein by reference to
Exhibit 12 to Annex D of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(d)(xi) Labs Contribution Agreement**
(d)(xii) Labs Management Agreement (incorporated herein by reference to
Exhibit 8 to Annex D of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(d)(xiii) Labs Partnership Agreement (incorporated herein by reference
to Exhibit 7 to Annex D of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(d)(xiv) Letter of Understanding between MDS and Hemosol, accepted and
agreed to by Hemosol on October 31, 2003, as amended
(d)(xv) MDS Guarantee
(d)(xvi) MDS Indemnity Agreement (incorporated herein by reference to
Exhibit 13 to Annex D of the Notice of Annual and Special
Meeting and Management
17
Information Circular (Exhibit (a)(3)(i))
(d)(xvii) Memorandum of Understanding between MDS and Hemosol, dated
October 22, 2002, as amended on December 23, 2003.
(d)(xviii) New Hemosol MOU**
(d)(xix) New Hemosol Stock Option Plan (incorporated herein by
reference to Annex F of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit
(a)(3)(i))
(d)(xx) Warrant Certificate, dated November 22, 2002, relating to the
Tranche A Warrants
(d)(xxi) Partnership Interest Transfer Agreement**
(d)(xxii) Consent of Ernst & Young LLP
(f) Not applicable
(g) Not applicable
------------------
* The Auditors' Consent set forth on page 124 of this exhibit shall not be
deemed to be filed as part of this exhibit. In lieu of such consent, Ernst
& Young LLP has provided the consent set forth as Exhibit (d)(xxii) hereto.
** To be filed by amendment.
18