UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THE
SECURITIES SHALL NOT TRADE THE SECURITIES BEFORE MARCH 23, 2002.
WARRANT
TO PURCHASE COMMON SHARES
OF
HEMOSOL INC.
THIS IS TO CERTIFY THAT for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), Hemosol Inc. (the "Corporation"),
a corporation incorporated under the laws of Ontario, hereby grants to MDS Inc.
("MDS") the right at any time and from time to time during the periods set forth
in Section 2.1 hereof to purchase from the Corporation up to six million
(6,000,000) Common Shares in the capital of the Corporation (subject to
adjustment as provided in Article 3 hereof), in whole or in part, at a price per
share equal to the Exercise Price (subject to adjustment as provided in Article
3 hereof), upon the terms and conditions and pursuant to the provisions
hereinafter provided.
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
Where used herein or in any amendments hereto, the following terms shall have
the following meanings, respectively:
"BUSINESS DAY" means any day other than (i) a Saturday or Sunday; or (ii) any
other day on which banking institutions are authorized or required by law,
executive order or governmental decree to be closed in Toronto.
"CAPITAL REORGANIZATION" has the meaning attributed to such term in Section
3.1(d);
"CERTIFICATE OF THE CORPORATION" means an instrument signed in the name of the
Corporation and without personal liability by any two of the Chairman, the
President, the Chief Financial Officer, any Vice President, the Treasurer or the
Secretary of the Corporation certifying the matters specified therein;
"CLOSE OF BUSINESS" means 5 p.m. (Toronto time);
"COMMON SHARES" means the common shares in the capital of the Corporation, as
such shares exist at the Close of Business on the date of execution and delivery
of this Warrant; provided that, in the event of a subdivision, redivision,
reduction, combination or consolidation thereof, or such successive
subdivisions, redivisions, reductions, combinations or consolidations, then,
subject to adjustments, if any, having been made in accordance with Section 3.1,
"Common Shares" shall thereafter mean the shares resulting from such
subdivision, redivision, reduction, combination or consolidation;
"CORPORATION" means Hemosol Inc. and its successors from time to time;
"CURRENT MARKET PRICE PER COMMON SHARE" has the meaning attributed to such term
in Section 3.2(e);
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"DIRECTOR" means a director of the Corporation for the time being and
"Directors" means the board of directors of the Corporation or, whenever duly
empowered, a committee of the board of directors of the Corporation, and
reference to action by the Directors means action by the directors as a board or
action by such a committee of the board as a committee;
"DIVIDENDS PAID IN THE ORDINARY COURSE" means dividends paid on the Common
Shares in any financial year of the Corporation, whether in (1) cash; (2) shares
of the Corporation; (3) rights, options or warrants to purchase any shares,
property or other assets of the Corporation (but excluding rights, options or
warrants referred to in Section 3.1(a)(i) or (ii)); or (4) property or other
assets of the Corporation. For the purposes of the foregoing, where any dividend
is paid, otherwise than in cash, any securities, property or other assets so
distributed by way of dividend shall be valued at the fair market value of such
securities, property or other assets, as the case may be, as determined by the
Directors, which determination shall be conclusive;
"EXERCISE PRICE" means $1.00 per Common Share as adjusted from time to time
pursuant to Article 3 of this Warrant;
"EXPIRY DATE" means the last date on which this Warrant can be exercised for
Common Shares as provided in Section 2.1;
"HOLDER" means MDS;
"LOAN" means the Cdn$20 million non-revolving credit facility provided to the
Corporation by The Bank of Nova Scotia pursuant to a commitment letter dated
October 25, 2002, and guaranteed by MDS;
"LOAN REPAYMENT DATE" means the day on which the Loan has been repaid in full by
either the Corporation or MDS.
"RIGHTS OFFERING" and "RIGHTS PERIOD" have the meanings attributed to such terms
in Section 3.1(b);
"SHARE REORGANIZATION" has the meaning attributed to such term in Section
3.1(a);
"SPECIAL DISTRIBUTION" has the meaning attributed to such term in Section
3.1(d);
"TIME OF EXPIRY" has the meaning attributed to such term in Section 2.1;
"TSX" means the Toronto Stock Exchange;
"UNDERLYING SECURITIES" means the Common Shares issuable upon the exercise of
the Warrants; and
"WARRANT" means this Warrant and includes any new warrant or warrants issued
pursuant to Sections 3.1 or 3.2.
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1.2 EXTENDED MEANINGS
Unless elsewhere herein otherwise expressly provided or unless the context
otherwise requires, words importing the singular include the plural and vice
versa and words importing the masculine gender include the feminine and neuter
genders.
1.3 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The division of this Warrant into Articles and Sections and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this Warrant. The terms "this Warrant",
"hereof", "herein", "hereunder" and similar expressions refer to this Warrant
and not to any particular Article, Section or other portion hereof and include
any agreement or instrument supplementary or ancillary hereto.
1.4 TIME
Time shall be of the essence of this Warrant.
1.5 DAY NOT A BUSINESS DAY
In the event that any day on or before which any action is required to be taken
hereunder is not a Business Day, then such action shall be required to be taken
on or before the requisite time on the next succeeding day that is a Business
Day.
1.6 APPLICABLE LAW
This Warrant shall be governed by and be construed in accordance with the laws
of the Province of Ontario and the federal laws of Canada applicable therein,
and each of the holder and the Corporation hereby irrevocably and
unconditionally attorns to the non-exclusive jurisdiction of the courts of the
Province of Ontario.
ARTICLE 2
EXERCISE OF WARRANT
2.1 EXERCISE PERIOD
As to 5,000,000 Common Shares, this Warrant may be exercised
at any time or from time to time on a Business Day from the date hereof to and
including the day prior to the later of:
(a) November 22, 2005; and
(b) if the Loan Repayment Date occurs after February 22, 2004, the
earlier of (i) the first anniversary of the Loan Repayment
Date, and (ii) November 22, 2007.
In the event the Loan Repayment Date occurs after February 22,
2004, this Warrant may be exercised as to the number of additional Common Shares
shown in the column below entitled "Number of Shares" at any time or from time
to time on a Business Day during
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the period commencing on the corresponding date shown in the column entitled
"Start Date" below to and including the corresponding date shown in the column
entitled "End Date" below:
NUMBER OF SHARES START DATE END DATE
- ---------------- ----------------- -----------------
333,333 February 22, 2004 February 22, 2007
333,333 March 22, 2004 March 22, 2007
333,334 April 22, 2004 April 22, 2007
Notwithstanding the foregoing, the holder shall not be
entitled to exercise this Warrant in respect of the number of Common Shares
shown under the heading "Number of Shares" where the corresponding date shown
under the heading "Start Date" is on or after the Loan Repayment Date.
Subject to the limitations above, this Warrant may be
exercised for all or any part of the whole number of Common Shares purchasable
upon its exercise; provided, however, that this Warrant shall be void and all
rights represented hereby shall cease unless exercised before the Close of
Business on the Expiry Date (such time and date being referred to as the "Time
of Expiry").
2.2 MANNER OF EXERCISE
To exercise this Warrant, in whole or in part, the holder shall deliver to the
Corporation at the address specified in Section 6.5 before the Close of Business
on the applicable last day for exercise as set out in Section 2.1 (i) a written
notice in substantially the form of Exhibit A hereto of such holder's election
to exercise this Warrant, which notice shall specify the number of whole Common
Shares to be purchased, (ii) a certified cheque or cheques or bank draft payable
to the order of the Corporation in an amount equal in the aggregate to the
product of the Exercise Price multiplied by the number of Common Shares as to
which this Warrant is exercised, and (iii) this Warrant. Upon receipt thereof,
the Corporation shall, as promptly as practicable, and in any event within ten
Business Days thereafter, execute or cause to be executed, and deliver to such
holder, a certificate or certificates representing the aggregate number of
Common Shares issuable upon such exercise. The share certificate or certificates
so delivered shall be in such denominations as may be specified in such notice
and shall be registered in the name of such holder or such other name as shall
be designated in such notice. This Warrant shall be deemed to have been
exercised and such certificate or certificates shall be deemed to have been
issued, and such holder or any other person so designated to be named therein
shall be deemed to have become a holder of record of such Common Shares for all
purposes, as of the Close of Business on the date such notice, together with
such cheque or cheques, and this Warrant, are received by the Corporation as
aforesaid. If this Warrant shall have been exercised and/or surrendered in part,
the Corporation shall, at the time of delivery of the certificate or
certificates representing the Common Shares issuable upon such exercise, deliver
to the holder hereof a new Warrant evidencing the rights of such holder to
purchase the unpurchased Common Shares called for by this Warrant, which new
Warrant shall in all other respects be identical with this Warrant, or, at the
request of such holder, appropriate notation may be made on this Warrant and the
same returned to such holder.
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ARTICLE 3
ADJUSTMENTS
3.1 ADJUSTMENT OF EXERCISE PRICE
The Exercise Price and the number of Common Shares which may
be subscribed for upon exercise of the Warrant shall be subject to adjustment
from time to time upon the occurrence of any of the events and in the manner
provided as follows:
(a) If and whenever at any time prior to the Time of Expiry, the
Corporation shall:
(i) declare a dividend or make a distribution on its
Common Shares payable in Common Shares (or securities
exchangeable for or convertible into Common Shares),
other than a dividend (other than a stock dividend)
paid in the ordinary course; or
(ii) subdivide or change its outstanding Common Shares
into a greater number of Common Shares; or
(iii) reduce, combine or consolidate its outstanding Common
Shares into a lesser number,
(any of such events in these clauses 3.1(a)(i), (ii) and (iii)
being called a "Share Reorganization"), then effective
immediately after the record date or effective date, as the
case may be, at which the holders of Common Shares are
determined for the purposes of the Share Reorganization the
Exercise Price shall be adjusted to a price determined by
multiplying the applicable Exercise Price in effect on such
effective date or record date by a fraction, the numerator of
which shall be the number of Common Shares outstanding on such
effective date or record date before giving effect to such
Share Reorganization and the denominator of which shall be the
number of Common Shares outstanding immediately after giving
effect to such Share Reorganization (including, in the case
where securities exchangeable for or convertible into Common
Shares are distributed, the number of additional Common Shares
that would have been outstanding had such securities been
exchanged for or converted into Common Shares immediately
after giving effect to such Share Reorganization).
(b) If and whenever at any time prior to the Time of Expiry the
Corporation shall fix a record date for the issuing of rights,
options or warrants to all or substantially all of the holders
of the Common Shares entitling them for a period expiring not
more than 45 days after such record date (the "Rights Period")
to subscribe for or purchase Common Shares (or securities
convertible into or exchangeable for Common Shares) at a price
per share (or having a conversion or exchange price per share)
which is less than 95% of the Current Market Price per Common
Share (as hereinafter defined) on the record date for such
issue (any of such events being called a "Rights Offering"),
then effective immediately after the end of the Rights Period
the Exercise Price shall be adjusted to a price determined by
multiplying
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the applicable Exercise Price in effect at the end of the
Rights Period by a fraction the numerator of which shall be
the sum of:
(i) the number of Common Shares outstanding as of the
record date for the Rights Offering; and
(ii) a number determined by dividing (A) either the
product of (i) the number of Common Shares issued
during the Rights Period upon exercise of the rights,
warrants or options under the Rights Offering and
(ii) the price at which such Common Shares are
issued, or, as the case may be, the product of (iii)
the number of Common Shares for or into which the
convertible or exchangeable securities issued during
the Rights Period upon exercise of the rights,
warrants or options under the Rights Offering are
exchangeable or convertible and (iv) the exchange or
conversion price of the convertible or exchangeable
securities so issued, by (B) the Current Market Price
per Common Share as of the record date for the Rights
Offering, and
the denominator of which shall be the number of Common Shares
outstanding (including the number of Common Shares actually
issued or subscribed for during the Rights Period upon
exercise of the rights, warrants or options under the Rights
Offering) or which would be outstanding upon the conversion or
exchange of all convertible or exchangeable securities issued
during the Rights Period upon exercise of the rights, warrants
or options under the Rights Offering, as applicable, in each
case after giving effect to the Rights Offering.
Common Shares owned by or held (otherwise than as security)
for the account of the Corporation or any subsidiary of the
Corporation shall be deemed not to be outstanding for the
purpose of any such computation. In order to give effect to
the provisions of Section 3.1(e) in the circumstances
described below, any holder who shall have exercised his right
to purchase Common Shares during the period beginning
immediately after the record date for a Rights Offering and
ending on the last day of the Rights Period therefor, in
addition to the Common Shares to which he is otherwise
entitled upon such exercise, shall be entitled to that number
of additional Common Shares equal to the result obtained when
the difference, if any, between the Exercise Price in effect
immediately prior to the end of such Rights Offering and the
Exercise Price, as adjusted for such Rights Offering pursuant
to this Section 3.1(b), is multiplied by the number of Common
Shares purchased upon exercise of the Warrant held by such
holder during such period, and the resulting product is
divided by the Exercise Price, as adjusted for such Rights
Offering pursuant to this Section 3.1(b). Such additional
Common Shares shall be deemed to have been issued to the
holder immediately following the end of the Rights Period and
a certificate for such additional Common Shares shall be
delivered to such holder within 10 Business Days following the
end of the Rights Period.
(c) If and whenever at any time prior to the Time of Expiry the
Corporation shall fix a record date for the payment, issue or
distribution to all or substantially all of the
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holders of the Common Shares of (i) a dividend, (ii) cash or
assets (including evidences of the Corporation's
indebtedness), or (iii) rights or other securities (including
without limitation, securities convertible into or
exchangeable for Common Shares), and such payment, issue or
distribution does not constitute a dividend (other than a
stock dividend) paid in the ordinary course, a Share
Reorganization or a Rights Offering (any of such non-excluded
events being herein called a "Special Distribution"), the
Exercise Price shall be adjusted effective immediately after
such record date to a price determined by multiplying the
applicable Exercise Price in effect on such record date by a
fraction:
(i) the numerator of which shall be:
(A) the product of the number of Common Shares
outstanding on such record date and the
Current Market Price per Common Share on
such record date; less
(B) the fair market value, as determined by
action of the Directors (whose determination
shall be conclusive), to the holders of the
Common Shares of such dividend, cash,
assets, rights or securities so paid, issued
or distributed less the fair market value,
as determined by action of the Directors
(whose determination shall be conclusive),
of the consideration, if any, received
therefor by the Corporation, and
(ii) the denominator of which shall be the number of
Common Shares outstanding on such record date
multiplied by the Current Market Price per Common
Share on such record date.
Any Common Shares owned by or held (otherwise than as
security) for the account of the Corporation or any subsidiary
of the Corporation shall be deemed not to be outstanding for
the purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed. To the
extent that such payment, issuance or distribution is not so
made, the Exercise Price shall be readjusted effective
immediately to the Exercise Price which would then be in
effect based upon such payment, issuance or distribution
actually made.
(d) If and whenever at any time prior to the Time of Expiry there
shall be a reorganization, reclassification or other change of
Common Shares outstanding at such time or change of the Common
Shares into other shares or into other securities (other than
a Share Reorganization), or a consolidation, amalgamation,
arrangement or merger of the Corporation with or into any
other corporation or other entity (other than a consolidation,
amalgamation, arrangement or merger which does not result in
any reclassification of the outstanding Common Shares or a
change of the Common Shares into other shares), or a transfer
of the undertaking or assets of the Corporation as an entirety
or substantially as an entirety to another corporation or
entity in which the holders of Common Shares are entitled to
receive shares, other securities or property, including cash,
(any of
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such events being herein called a "Capital Reorganization"),
the holder upon the exercise of the right to subscribe for and
purchase Common Shares pursuant to the exercise of this
Warrant after the effective date of such Capital
Reorganization shall be entitled to receive, and shall accept
for the same aggregate consideration in lieu of the number of
Common Shares to which such holder was theretofore entitled
upon such exercise, the aggregate number of shares, other
securities or other property, including cash, which such
holder would have received as a result of such Capital
Reorganization had such holder exercised his right to acquire
Underlying Securities immediately prior to the effective date
or record date, as the case may be, of the Capital
Reorganization and had such holder been the holder of such
Underlying Securities on such effective date or record date,
as the case may be, subject to adjustment thereafter in
accordance with provisions the same, as nearly as may be
possible, as those contained in Sections 3.1(b) and 3.1(c)
hereof. If determined appropriate by the Directors, acting
reasonably, appropriate adjustments shall be made as a result
of any such Capital Reorganization in the application of the
provisions set forth in this Section 3.1, with respect to the
rights and interests thereafter of the holder of this Warrant
to the end that the provisions set forth in this Section 3.1
shall thereafter correspondingly be made applicable as nearly
as may reasonably be in relation to any shares, other
securities or other property, including cash, thereafter
deliverable upon the exercise of the Warrant. Any such
adjustment shall be made by and set forth in an agreement
supplemental hereto approved by action by the Directors,
acting reasonably, and shall for all purposes be conclusively
deemed to be an appropriate adjustment.
(e) If and whenever at any time prior to the Time of Expiry there
shall occur a Share Reorganization, a Rights Offering or a
Special Distribution and any such event results in an
adjustment to the Exercise Price pursuant to the provisions of
this Section 3.1, the number of Common Shares purchaseable (at
the adjusted Exercise Price) shall be adjusted
contemporaneously with the adjustment of the Exercise Price by
multiplying the number of Common Shares theretofore
purchaseable on the exercise thereof by a fraction, the
numerator of which shall be the applicable Exercise Price in
effect immediately prior to such adjustment and the
denominator of which shall be the applicable Exercise Price
resulting from such adjustment.
(f) In case the Corporation after the date of issue of this
Warrant shall take any action affecting the Common Shares,
other than action described in this Section 3.1, which in the
opinion of the Directors, acting reasonably, would materially
adversely affect the rights of the holder, the Exercise Price
or the number of Common Shares purchaseable upon exercise
shall be adjusted in such manner, if any, and at such time, by
action by the Directors, acting reasonably, as they may
determine to be equitable in the circumstances, but subject in
all cases to the prior approval of the TSX and any other
necessary regulatory approval.
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3.2 RULES REGARDING CALCULATION OF ADJUSTMENT OF EXERCISE PRICE
For the purposes of Section 3.1 hereof, any adjustment shall
be made successively whenever an event referred to therein shall occur, subject
to the following provisions:
(a) all calculations shall be made to the nearest 1/100th of a
Common Share;
(b) no adjustment to an Exercise Price shall be required unless
such adjustment would result in a change of at least 1% in the
prevailing Exercise Price and no adjustment in the number of
Common Shares purchasable upon exercise of this Warrant will
be required to be made unless the cumulative effect of such
adjustment or adjustments would change the number of Common
Shares purchasable upon the exercise of this Warrant by at
least one one-hundredth of a Common Share and, for greater
clarity, any adjustment which, except for the qualification of
this clause, would otherwise have been required to be made
shall be carried forward and taken into account in any
subsequent adjustment; provided, however, that in no event
shall the Corporation be obligated to issue fractional Common
Shares or fractional interests in Common Shares upon exercise
of this Warrant or pay any amount in cash in lieu of issuing
fractional Common Shares;
(c) if a dispute shall at any time arise with respect to
adjustments to the Exercise Price or the number of Common
Shares purchaseable pursuant to the exercise rights
represented by this Warrant, such disputes shall be
conclusively determined by the Corporation's auditors or, if
they are unable or unwilling to act, by such other firm of
independent chartered accountants as may be selected by action
by the Directors and any such determination shall be
conclusive evidence of the correctness of any adjustments
made;
(d) if the Corporation shall set a record date to determine the
holders of its Common Shares for the purpose of entitling them
to receive any dividend or distribution or any subscription or
purchase rights, options or warrants and shall thereafter and
before the distribution to such shareholders of any such
dividend, distribution or subscription or purchase rights
legally abandon its plan to pay or deliver such dividend,
distribution or subscription or purchase rights, then no
adjustment in the Exercise Price or the number of Common
Shares purchaseable upon exercise of the Warrant shall be
required by reason of the setting of such record date; and
(e) "Current Market Price per Common Share", at any date, means
the weighted average price per Common Share at which the
Common Shares have traded on the TSX (or, if the Common Shares
are not so listed, then on the stock exchange on which the
Common Shares are listed on which the greatest volume of
Common Shares were traded during the period referenced below
or, if the Common Shares are not so listed on any stock
exchange, then on the over-the-counter market on which the
Common Shares are traded as selected by action of the
Directors acting reasonably for such purpose), during the 20
most recent trading days ending on the fifth trading day
before such date on which there has
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occurred at least one trade of at least one board lot of
Common Shares prior to such date, such weighted average price
to be determined by dividing the aggregate sale price of all
Common Shares sold in board lots on such exchange or market,
as the case may be, during the said 20 trading days, by the
number of Common Shares so sold.
3.3 PROCEEDINGS PRIOR TO ANY ACTION REQUIRING ADJUSTMENT
As a condition precedent to the taking of any action which would require an
adjustment pursuant to Section 3.1, the Corporation shall take any action that
may, in the opinion of counsel, be necessary in order that the Corporation may
validly and legally issue as fully paid and non-assessable all the Underlying
Securities that the holder is entitled to receive on the full exercise thereof
in accordance with the provisions hereof.
3.4 NOTICES
Upon each adjustment or re-adjustment of the Exercise Price or in the nature of
the Common Shares, securities or other property receivable upon the exercise of
this Warrant, the Corporation promptly shall prepare and mail, by first class
mail, postage prepaid, to the registered holder of this Warrant a certificate
setting forth such adjustment or re-adjustment and stating the facts upon which
such adjustment or re-adjustment is based, including a statement of the kind and
amount of shares, securities or other property thereafter to be received upon
the exercise of this Warrant.
ARTICLE 4
COVENANTS OF THE CORPORATION
4.1 COVENANTS OF THE CORPORATION
The Corporation hereby covenants with the holder of this Warrant that so long as
this Warrant shall remain outstanding and may be exercised:
(a) all Common Shares that may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be
validly issued and fully paid and non-assessable;
(b) during the period within which the rights represented by this
Warrant may be exercised, the Corporation will at all times
have authorized and reserved for issuance a sufficient number
of its Common Shares to provide for the exercise of the rights
represented by this Warrant;
(c) the Corporation will maintain in full force and effect its
existence;
(d) the Corporation shall use its reasonable best efforts to
maintain in good standing the listing of the Common Shares on
the TSX, or such other stock exchange upon which the Common
Shares may be listed; and
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(e) the Corporation will keep its transfer register open during
normal business hours in the City of Toronto.
4.2 MERGERS, SUCCESSORS
Nothing in this Warrant shall prevent any consolidation, reorganization,
arrangement, amalgamation or merger of the Corporation with or into any other
body corporate or person; provided, however, that the body corporate or person
formed by such consolidation or amalgamation or into which such merger shall
have been made shall succeed to and be substituted for the Corporation hereunder
with the same effect as if it had been a party hereto. Such changes may be made
to the Warrant as the Directors of the Corporation determine may be appropriate
in view of any such consolidation, reorganization, arrangement, amalgamation or
merger.
ARTICLE 5
ACKNOWLEDGEMENT OF MDS
5.1 ACKNOWLEDGEMENT OF MDS
The holder hereby acknowledges that this Warrant and the Common Shares issued
pursuant hereto are and will be subject to resale restrictions under applicable
securities laws, rules and regulations and policies.
ARTICLE 6
GENERAL PROVISIONS
6.1 EXCHANGES
(a) This Warrant may be exchanged for another warrant or warrants
entitling the holder thereof to purchase in the aggregate the
same number of Common Shares as are purchasable under the
Warrant so exchanged upon the same terms as under the Warrant
so exchanged.
(b) This Warrant may be exchanged only at the offices of the
Corporation or at any other place that is designated by the
Corporation. Any Warrant tendered for exchange shall be
surrendered to the Corporation and be cancelled.
6.2 CANCELLATION
A holder may at any time tender this Warrant to the Corporation for cancellation
and the Corporation shall cancel this Warrant and make the appropriate notations
on its registers.
6.3 REGISTRATION OF HOLDERS OF WARRANT AND TRANSFERS
(a) The Corporation shall cause to be kept at its offices or at
such other places as may be designated by the Corporation from
time to time registers in which the holder or holders of this
Warrant shall be registered. The name and address of each
holder so registered and the particulars of the Warrant held
by him shall be
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entered into the register in which the Warrant is registered.
No transfer of this Warrant shall be valid unless made on the
register.
(b) The Corporation shall not be charged with notice of or be
bound to see to the execution of any trusts, whether express,
implied or constructive in respect of this Warrant and may
transfer the same on the direction of the registered holder
thereof, whether named as trustee or otherwise, as though that
person were the beneficial holder thereof.
(c) The holder may transfer all or part of the Warrant provided
the holder or its administrators or other legal
representatives comply with such reasonable requirements as
the Corporation may prescribe, including compliance with all
applicable securities legislation. The transferee of all or
part of the Warrant shall, after (i) a form of transfer
acceptable to the Corporation, such as the form in Exhibit B
hereto, duly completed, and (ii) the certificate representing
the Warrant, are deposited with the Corporation, and upon
compliance with all other reasonable requirements of the
Corporation or law, be entitled to have its name entered on
the register as the holder of such part or all of the Warrant
so transferred free from all equities or rights of set-off or
counterclaim between the Corporation and the transferor or any
other previous holder of such Warrant (or part thereof), save
in respect of equities which the Corporation is required to
take notice by statute or by order of a court of competent
jurisdiction.
6.4 LOSS OR MUTILATION
Upon receipt by the Corporation of evidence reasonably satisfactory to it of the
ownership of and the loss, theft, destruction or mutilation of this Warrant and
(in case of loss, theft or destruction) of indemnity reasonably satisfactory to
it, and in case of mutilation, upon surrender and cancellation hereof, the
Corporation will execute and deliver in lieu hereof a new Warrant of like tenor.
6.5 COMMUNICATIONS
All communications provided for hereunder shall be delivered, addressed (a) if
to the Corporation, at: 2585 Meadowpine Blvd., Mississauga, Ontario L5N 8H9;
Attention: Lee Hartwell, Vice President, Corporate Development and Chief
Financial Officer and Secretary, or (b) if to MDS, at 100 International
Boulevard, Etobicoke, Ontario M9W 6J6, Attention: General Counsel. Any address
may be changed from time to time and shall be the most recent address furnished
in writing, if by the holder of the Warrant, to the Corporation, or, if by the
Corporation, to the holder of the Warrant. Except as otherwise provided herein,
any communication shall be deemed to have been given when delivered.
6.6 LIMITATION OF LIABILITY, ETC.
No provision of this Warrant, in the absence of affirmative action by the holder
hereof to purchase Common Shares or other securities, and no mere enumeration in
this Warrant of the rights or privileges of the holder hereof, shall give rise
to any liability of such holder for the Exercise Price or as a shareholder of
the Corporation, whether such liability is asserted by the
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Corporation or by creditors of the Corporation. No holder hereof shall have any
rights as a shareholder of the Corporation until such holder exercises this
Warrant in accordance with the provisions hereof.
6.7 CURRENCY OF PAYMENT
Any amounts payable hereunder shall be paid in lawful money of Canada.
6.8 BINDING EFFECT
All covenants and agreements of the Corporation contained herein shall be
binding upon the Corporation and its successors, and shall enure to the benefit
of the holder, its successors and assigns.
6.9 SEVERABILITY
If any provision hereof shall be held to be void, illegal or unenforceable, to
the extent permitted by law, such provision shall be deemed severable from the
remaining provisions hereof which shall remain in full force and effect.
6.10 MODIFICATIONS
No amendment, modification, consent or waiver by the holder shall be effective
unless made in writing and signed by the holder hereof.
IN WITNESS WHEREOF, the Corporation and the holder have duly caused this Warrant
to be executed as of November 22, 2002.
HEMOSOL INC.
By: /s/ LEE HARTWELL
----------------------------
MDS INC.
By: /s/ PETER BRENT
----------------------------
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY ONLY BE SOLD OR OTHERWISE
TRANSFERRED BY THE HOLDER IN ACCORDANCE WITH, OR PURSUANT TO AN EXEMPTION FROM,
ALL APPLICABLE PROVISIONS OF SUCH STATUTE.
EXHIBIT A TO WARRANT
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
The undersigned registered holder of this Warrant irrevocably exercises this
Warrant for and purchases ________ Common Shares in the capital of Hemosol Inc.
purchasable with this Warrant, and herewith makes payment therefor (by certified
cheque or bank draft) in the amount of $ __________ , all at the price and on
the terms and conditions specified in this Warrant, and requests that
certificates for the Common Shares hereby purchased (and any securities or other
property issuable upon such exercise) be issued in the name of and delivered to
_____________________________________________________________ whose address is
_______________________________________________________________________________,
and, if such Common Shares shall not include all of the Common Shares issuable
as provided in this Warrant, that a new Warrant of like tenor and date for the
balance of the Common Shares issuable under this Warrant be delivered to the
undersigned.
Dated:
______________________________________
(Signature of Registered Owner)
______________________________________
(Street Address)
______________________________________
(City)(Province)(Postal Code)
EXHIBIT B TO WARRANT
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto (name) __________________________ (the "Transferee"), of
(residential address) _______________________________________________ the
attached Warrant of Hemosol Inc. (the "Corporation") registered in the name of
the undersigned on the records of the Corporation represented by the within
certificate and irrevocably appoints ___________________________ as the attorney
of the undersigned to transfer the said securities on the books of the
Corporation with full power of substitution. If the undersigned is a U.S. Person
(as defined in Regulation S under the U.S. Securities Act of 1933, as amended, a
"U.S. PERSON"), the undersigned represents that the transferee is not a U.S.
Person.
DATED the _______ day of __________________, _________.
______________________ __________________________________________
Signature Guaranteed Signature of Warrantholder, to be the same
as appears on the face of this Warrant
Certificate)