FORM OF SUPPORT AGREEMENT
Exhibit
3
FORM
OF SUPPORT AGREEMENT
October
17, 2007
TO: GALENICA
CANADA LTD.
Dear
Sirs:
The
undersigned shareholder of Aspreva Pharmaceuticals Corporation (the “Aspreva
Shareholder”) understands that Galenica Canada Ltd. (“Galenica”) proposes to
enter into an agreement (the “Combination Agreement”) with Aspreva
Pharmaceuticals Corporation (“Aspreva”) pursuant to which Galenica will acquire
all of the outstanding Common Shares in the capital of Aspreva (the “Aspreva
Common Shares”), and all of the outstanding options to purchase Aspreva Common
Shares (“Aspreva Options”) will be terminated and cancelled in exchange for a
cash payment, under the plan of arrangement (the “Arrangement”), a draft of
which is attached as Schedule D to the Combination
Agreement. Pursuant to the Arrangement, holders of Aspreva Common
Shares will receive, in exchange for Aspreva Common Shares, cash consideration
per Aspreva Common Share in the amount set forth in the Combination Agreement
and holders of Aspreva Options will receive a cash payment in exchange for
their
Aspreva Options on the terms set out therein.
This
Agreement sets out the terms and conditions of the agreement of the Aspreva
Shareholder to take certain actions and to do certain things, including to
vote
or cause to be voted the Aspreva Common Shares and Aspreva Options, if any,
owned by the Aspreva Shareholder, and the Aspreva Common Shares over which
the
Aspreva Shareholder has control or direction, in favour of the Arrangement
Resolution approving the Arrangement.
All
capitalized terms used but not defined in this Agreement have the meaning
given
to such terms in the Combination Agreement.
The
Aspreva Shareholder acknowledges that Galenica would not enter into the
Combination Agreement but for the execution and delivery of this Agreement
by
the Aspreva Shareholders.
As
used herein, the term “Securities” means any securities of Aspreva that may be
voted at the Aspreva Meeting (as hereinafter defined) including any Aspreva
Options or securities that result from any reclassification, conversion,
consolidation, subdivision or exchange of, or distribution or dividend on,
the
Aspreva Common Shares.
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1.
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Aspreva
Shareholders Commitment in Favour of the
Arrangement
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1.1
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Non-Solicitation. Subject
to the provisions of section 1.7, and provided that Galenica has
entered
into and complied in all material respects with its obligations
under the
Combination Agreement, the Aspreva Shareholder covenants and agrees
in
favour of Galenica that the Aspreva Shareholder shall not, directly
or
indirectly, take any action to solicit, initiate or encourage any
Acquisition Proposal.
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1.2
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Voting
and Proxy. Subject to the provisions of section 1.7, and
provided that Galenica has entered into and complied in all material
respects with its obligations under the Combination Agreement,
the Aspreva
Shareholder covenants and agrees in favour of Galenica to vote,
or cause
to be voted, all Securities held by the Aspreva Shareholder (including
all
Securities owned including at the date hereof, whether held directly,
or
indirectly, or beneficially, and including all Securities acquired
by the
Approved Shareholder, directly or indirectly, or beneficially,
at any time
prior to the Aspreva Meeting (as defined below) and including all
other Securities over which the Aspreva Shareholder has control
or direction) (the “Subject Securities”) except for Subject Securities
transferred by the Aspreva Shareholder pursuant to section 1.6
(A) in
favour of (i) the Arrangement Resolution; and (ii) any Alternative
Transaction (as defined below) at any extraordinary meeting or
meetings
(or adjournment or adjournments thereof) of holders of Securities
to be
held to consider the Arrangement or such Alternative Transaction
(the
“Aspreva Meeting”) and (B) against any Acquisition Proposal that shall be
submitted for the vote or consent of the holders of Securities,
including,
in each case, in connection with any separate vote of any sub-group
of
holders of Securities that may be required to be taken and of which
sub-group the Aspreva Shareholder forms a part. In furtherance
of the Aspreva Shareholder’s voting agreement in this section, the Aspreva
Shareholder hereby revokes any and all previous proxies with respect
to
any of the Subject Securities and grants to Galenica and such individuals
or corporations as Galenica may designate an irrevocable proxy
to vote all
of the Subject Securities in accordance with this section
1.2.
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1.3
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Change
in Nature of Transaction. Subject to the provisions of
section 1.7, the Aspreva Shareholder covenants and agrees in favour
of
Galenica that if Galenica and Aspreva mutually agree that it is
necessary
or desirable to proceed with another form of transaction whereby
Galenica
or any of its affiliates would effectively acquire 100% of the
Securities
on economic terms and other terms and conditions (including, without
limitation, any tax consequences to the Aspreva Shareholder) which,
in
relation to Aspreva and the Aspreva Shareholder, are no less favourable
from a financial point of view and otherwise substantially equivalent
to
or better than those contemplated by the Combination Agreement
(an
“Alternative Transaction”), the Aspreva Shareholder will support the
completion of such Alternative Transaction in the manner described
in
section 1.4.
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1.4
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Meeting
of Holders of Securities of Aspreva. Subject to the
provisions of section 1.7, (a) if an Alternative Transaction involves
a
meeting or meetings of holders of Securities of Aspreva, the Aspreva
Shareholder covenants and agrees in favour of Galenica to vote
in favour
of any matters necessary or ancillary to the completion of the
transactions contemplated by the Alternative Transaction in the
same
manner, mutatis mutandis, as that referred to in section 1.2, and
(b) if an Alternative Transaction includes the making of an offer
by
Galenica or any of its affiliates to acquire the outstanding Securities,
the Aspreva Shareholder covenants and agrees in favour of Galenica
to
deposit or cause to be deposited the Subject Securities to such
offer.
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1.5
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Change
of References. In the event Galenica and Aspreva mutually
agree to proceed with any Alternative Transaction, the references
in
section 2.1 of this Agreement
to “Arrangement” shall be deemed to refer to such Alternative Transaction
and the representations, warranties and covenants in section 2.1 of this Agreement shall
be and
shall be deemed to have been made in the context of the Alternative
Transaction and all references to the “Effective Date” herein shall also
refer to the date of closing of the transactions contemplated by
the
Alternative Transaction.
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1.6
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Transfer
of Shares. Subject to the provisions of section
1.7:
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(a)
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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
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(b)
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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.
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1.7
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Limits
to Obligations of Aspreva Shareholder. For greater
certainty, the obligations of the Aspreva Shareholder pursuant
to this
Agreement shall terminate at the time which is the earliest
of:
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(a)
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the
Effective Time; or
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(b)
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the
time at which the Combination Agreement is terminated in accordance
with
its terms.
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1.8
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Exception. If
the Aspreva Shareholder is a director or officer of Aspreva, nothing
contained in this Agreement will prevent the Aspreva Shareholder
from
acting in his or her capacity as a director or officer of Aspreva
in
accordance with the exercise of his or her fiduciary duties or
other legal
obligation to act in the best interests of Aspreva. The
foregoing shall not release any Aspreva Shareholder from acting
in
accordance with this Agreement in his or her capacity as a shareholder
of
Aspreva.
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1.9
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Exception. Notwithstanding
any other provisions hereof, the Aspreva Shareholder shall not
be obliged, and the holder of any proxy granted on behalf of the
Aspreva
Shareholder shall not be entitled, to vote the Subject Securities
in the
manner provided herein if at the time of such vote there shall
be in force
any order or decree of a Governmental Authority restraining or
enjoining
the Aspreva Shareholder or the holder of any proxy granted on behalf
of
the Aspreva Shareholder from voting the Subject Securities; provided
that,
such order or decree is not the result of any breach of representation,
warranty, covenant or agreement of the Aspreva Shareholder in this
Agreement, and provided further that the Aspreva Shareholder has
notified
Galenica of such order or decree, to the extent it is aware of
same.
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2.
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General
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2.1
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Representations,
Warranties and Covenants. By executing this Agreement, the
Aspreva Shareholder represents, warrants and covenants to and with
Galenica that:
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(a)
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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;
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(b)
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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;
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(c)
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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;
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(d)
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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;
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(e)
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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
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(f)
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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.
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The
representations, warranties and covenants of the Aspreva Shareholder set
forth
in this section 2.1 will be true and correct on the date the Aspreva
Meeting is held and on the Effective Date and shall survive the completion
of
the Arrangement and, notwithstanding such completion, will continue in full
force and effect for one year after the Effective Date for the benefit of
Galenica.
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2.2
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Representations
and Warranties of Galenica. By executing this Agreement,
Galenica represents, warrants and covenants to and with the Aspreva
Shareholder that:
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(a)
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Galenica
is duly incorporated and organized and is validly existing under
the laws
of its jurisdiction of
incorporation;
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(b)
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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;
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(c)
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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
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(d)
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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.
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2.3
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Time
of the Essence. Time shall be of the essence of this
Agreement.
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2.4
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Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia and
the
federal laws of Canada applicable therein and each of the parties
attorns
to the non-exclusive jurisdiction of the Province of British Columbia
for
all purposes hereof.
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2.5
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Specific
Performance and Other Equitable Rights. The Aspreva
Shareholder recognizes and acknowledges that a breach by it of
any of its
covenants or agreements contained in this Agreement will cause
Galenica to
sustain injury for which Galenica would not have an adequate remedy
at law
for money damages. Therefore, the Aspreva Shareholder agrees
that in the event of such breach, Galenica shall be entitled to
the remedy
of specific performance of such covenant or agreement and to preliminary
and permanent injunctive and other equitable relief, in addition
to any
other remedy to which it may be entitled, at law or in equity,
and the
parties further agree to waive any requirement for the securing
or posting
of any bond in connection with the obtaining of any such injunctive
or
other equitable relief.
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2.6
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Counterparts.
This Agreement may be executed and delivered (including by facsimile
transmission) in counterparts, each of which shall be deemed to
be an original and all of which shall constitute one and the same
agreement. Signatures of the parties hereto (or their authorized
signatories, as applicable) transmitted by facsimile or
electronic transmission will be deemed to be their original signatures
for
all purposes and may be used in lieu of an originally signed Agreement
for
all purposes.
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2.7
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Further
Assurances. The Aspreva Shareholder, on the one hand, and Galenica, on
the other hand, will from time to time execute and deliver all
such
further documents and instruments and do all such acts and things
as the
other party may, either before or after the Effective Date, reasonably
require to effectively carry out or better evidence or perfect
the full
intent and meaning of this
Agreement.
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2.8
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Severability.
If any term, condition or provision in this Agreement is determined
to be
void or unenforceable in whole or in part, such term, condition
or
provision shall be severable from all other terms, conditions and
provisions hereof and shall not affect or impair the validity of
any other
term, condition or provisions
hereof.
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If
the terms and conditions of this letter are acceptable to you, please indicate
your acceptance by dating and signing the same as noted above.
Yours
very truly,
___________________________
«First_Name»
____________________________ October
___, 2007
(Signature) (Date)
The
undersigned agrees with and accepts the terms of this letter
Agreement.
GALENICA
CANADA LTD.
By: ___________________________
(Signature)
Its: ___________________________
(Title)
SCHEDULE
A
No.
of Aspreva Common Shares beneficially owned, directly or indirectly, by the
Aspreva Shareholder
«Shares_Beneficially_Held»
No.
of Aspreva Common Shares over which control or direction is exercised by
the
Aspreva Shareholder
«Common_Shares»
No.
of Aspreva Options held by the Aspreva Shareholder
«Options»
