SHAREHOLDER SUPPORT AGREEMENT
EXHIBIT 2
THIS
AGREEMENT is made as of the 26th day of September, 2006.
BETWEEN:
THE
PERSONS NAMED ON SCHEDULE 4.1(B) HERETO,
(each
such person a “Shareholder”
and
collectively, the “Shareholders”)
AND:
Millennium
Pharmaceuticals, Inc., a corporation existing under the laws of the State of
Delaware
(the
“Offeror”)
A.
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The
Shareholders are the registered and the beneficial owners of and/or
control the disposition of shares in the capital of AnorMED Inc.
(the
“Company”),
as more particularly described herein;
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B.
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The
Shareholders understand that the Offeror and the Company are, concurrently
with the execution and delivery of this Agreement, executing and
delivering the Support Agreement providing for the
Offer;
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C.
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This
Agreement sets out the terms and conditions of the several agreement
of
each of the Shareholders (i) to tender its Shares or cause the same
to be tendered to the Offer and (ii) to abide by the other
restrictions and covenants set forth herein; and
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D.
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Each
of the Shareholders acknowledges that (i) the Offeror would not enter
into
the Support Agreement but for the execution and delivery of this
Agreement
by the Shareholders, (ii) it is a condition of the Offeror’s
obligation under the Support Agreement to make the Offer that the
Shareholders enter into this Agreement with the Offeror, and (iii) in
entering into this Agreement, each of the Shareholders acknowledge
that it
is not and should not be considered to be acting jointly and in concert
with the Offeror in making the
Offer.
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1
NOW THEREFORE this Agreement witnesses that, in consideration of the premises and the covenants and agreements herein contained, the parties hereto agree as follows:
ARTICLE
1
INTERPRETATION
1.1
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Definitions | |
In
this Agreement:
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(a) |
“affiliate”
has the meaning assigned to such term under the Securities
Act
(British Columbia);
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(b) |
“Shareholder’s
Shares”
means, in respect of a Shareholder, (i) all Shares beneficially owned
by
such Shareholder, or over which such Shareholder exercises control
or
direction, on the date hereof and (ii) any Shares that become beneficially
owned by such Shareholder, or over which such Shareholder acquires
control
or direction, after the date hereof; and
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(c) |
“Support
Agreement”
means the support agreement dated the date hereof between the Offeror
and
the Company, a true copy of which has been delivered to the Shareholder
simultaneously with this Agreement being entered into.
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1.2
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Definitions in Support Agreement | |
All
terms used in this Agreement that are not defined in Section 1.1
or
elsewhere herein and that are defined in the Support Agreement shall
have
the respective meanings ascribed to them in the Support
Agreement.
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1.3
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Schedules | |
The
following Schedule attached hereto constitutes an integral part of
this
Agreement:
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Schedule 4.1(b) — Shareholders and Ownership of Shares |
ARTICLE
2
COVENANTS
OF THE OFFEROR
2.1
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Offeror
to Make Offer
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The
Offeror agrees with each Shareholder that it shall comply with the terms of
the
Support Agreement and, without limiting the generality of the foregoing, the
Offeror shall make or cause to be made the Offer for US$12.00 per Share having
the terms and conditions thereto set forth in the Support Agreement and as
required by the provisions of the Support Agreement. In the event that another
entity affiliated with the Offeror makes the Offer in accordance with the terms
and conditions of the Support Agreement, the Offeror shall cause such other
entity to become a party to this Agreement, upon which such other entity shall
become entitled to exercise all of the rights of the Offeror and subject to
all
of the obligations of the Offeror under this Agreement but the Offeror shall
continue to be jointly and severally liable for all such
obligations.
2
2.2
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Changes
to Offer
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The
Offeror shall not, without the prior written consent of each Shareholder, amend
the Support Agreement or the Offer to: (i) vary or waive the Minimum
Condition; (ii) decrease the consideration per Share; (iii) change the
form of consideration payable under the Offer (other than to add additional
consideration, whether in the form of cash or securities of the Parent or
otherwise); (iv) decrease the number of Shares in respect of which the
Offer is made; (v) impose additional conditions to the Offer; (vi) otherwise
vary the Offer (or any terms or conditions thereof) in a manner which is adverse
to the Shareholder; or (vii) extend the period of time for mailing the Offer
,
except as contemplated in section 2.1(c) of the Support Agreement.
ARTICLE
3
COVENANTS
OF THE SHAREHOLDER
3.1
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General
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Each
Shareholder hereby covenants and irrevocably agrees, on a several basis, in
favour of the Offeror that, from the date hereof until the earlier of the
termination of this Agreement in accordance with Article 5, except as permitted
by this Agreement, such Shareholder shall:
(a)
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not,
and shall cause its general partners and their respective directors,
officers, employees, financial advisors, counsel, agents, trustees,
partners or other representatives not to, directly or
indirectly,
(i) solicit, initiate or encourage any Alternative
Transaction (ii) participate in any discussions or negotiations with
any Person (other than the Offeror and its Subsidiaries and their
respective directors, officers, employees, agents, financial advisors,
counsel or other representatives) in respect of any Alternative
Transaction
(other than to refer such Persons to the provisions of this Agreement
and
the Support Agreement), (iii) provide any confidential information
relating to the Company or its Subsidiaries to any Person in connection
with any Alternative Transaction or
(iv) otherwise cooperate in any way with any effort or attempt by any
other person to do or seek to do any of the foregoing, provided,
however,
that nothing contained in this section or the other provisions of
this
agreement shall prevent such Shareholder or a nominee or representative
of
such Shareholder, if a director of the Company, from taking any actions
solely in his or her capacity as a member of the Board of Directors
in
respect of an unsolicited bona
fide
Alternative Transaction under the terms and conditions set out in
the
Support Agreement;
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(b)
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immediately
cease and cause to be terminated all existing discussions and
negotiations, if any, with any third party or any agent or representative
of any third party conducted before the date of this Agreement with
respect to any Alternative Transaction and request the return or
destruction of all confidential written information provided in connection
therewith;
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3
(c)
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not
release any third party from any confidentiality or standstill agreement
in respect of the Company that it is party to;
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(d)
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promptly
notify the Offeror of any Alternative Transaction, any bona
fide
inquiry, proposal, discussions or negotiation with respect to any
Alternative Transaction of which such Shareholder or any of its directors,
officers, employees, representatives, agents, trustees or partners
becomes
aware (and of which the Company or any of its directors, officers,
employees, representatives or agents is not aware), except to the
extent
that the Shareholder has been advised by its legal counsel that to
do so
would cause a breach of its fiduciary duties to the Company or any
of its
Subsidiaries; such notice will include, to the extent known to such
Shareholder, the material terms and conditions of such Alternative
Transaction, inquiry, proposal, discussion or negotiation. Such notice
to
the Offeror shall be made forthwith orally and in writing and shall
indicate, to the extent known to such Shareholder, such details of
the
proposal, inquiry or contact as the Offeror may reasonably request,
including the identity of the Person making such proposal, inquiry
or
contact and the terms and conditions of such Alternative Transaction,
inquiry, proposal, discussion or negotiation;
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(e)
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not
option, sell, transfer, pledge, encumber, grant a security interest
in,
hypothecate or otherwise convey any of the Shareholder’s Shares (or any
right or interest therein (legal or equitable)), to any Person or
group or
agree to do any of the foregoing;
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(f)
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not
grant or agree to grant any proxy, power of attorney or other right
to
vote the Shareholder’s Shares, or enter into any voting agreement, voting
trust, vote pooling or other agreement with respect to the right
to vote,
call meetings of shareholders or give consents or approval of any
kind
with respect to any of the Shareholder’s Shares;
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(g)
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not
vote or cause to be voted any of the Shareholder’s Shares in respect of
any proposed action by the Company or its shareholders or affiliates
or
any other Person in a manner which would reasonably be regarded as
likely
to prevent or delay the successful completion of the
Offer;
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(h)
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not
do indirectly that which it may not do directly in respect of the
restrictions on its rights with respect to the Shareholder’s Shares
pursuant to this Section 3.1; and
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(i)
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upon
the Offeror taking up and paying for the Shares tendered by the
Shareholder and acquiring Shares representing at least a majority
of the
then outstanding Shares, upon the written request of the Offeror,
the
Shareholder will or will cause any nominee or representative of the
Shareholder who acts as a director of the Company or any of its
Subsidiaries to resign in an orderly manner and to assist with the
appointment of such person or persons identified by the Offeror as
a
substitute director of the Company.
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4
3.2
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Deposit
of the Shareholder’s Shares under the
Offer
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Each
Shareholder hereby agrees with the Offeror that it will, as soon as practicable
and in any event on or before the fifteenth Business Day following the making
of
the Offer, cause all of its Shareholder’s Shares to be validly tendered in
acceptance of the Offer together with the letter of transmittal or, if
applicable, notice of guaranteed delivery, and any other documents required
in
accordance with the Offer, and will not withdraw its Shareholder’s Shares from
the Offer except as expressly otherwise permitted under this
Agreement.
3.3
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Co-operation/Substitute
Transaction
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If
the
Offeror concludes after the date of this Agreement that it is necessary or
desirable to proceed with a form of transaction other than the Offer (including,
without limitation, a plan of arrangement or amalgamation) whereby the Offeror
and/or its affiliates would effectively acquire all the Shares on economic
and
other terms and conditions (including, without limitation, tax treatment) having
consequences to each Shareholder that are no less favourable than those
contemplated by this Agreement, as determined by such Shareholder, acting
reasonably (any such transaction is referred to as a “Substitute
Transaction”),
each
Shareholder agrees to support the completion of the Substitute Transaction
in
the same manner as the Offer, including by voting its Shareholder’s Shares in
favour of the Substitute Transaction.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES
4.1
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Representations
and Warranties of the
Shareholder
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Each
Shareholder hereby represents and warrants to and covenants with the Offeror,
on
a several basis, as follows, and acknowledges that the Offeror is relying upon
such representations, warranties and covenants in entering into this
Agreement:
(a)
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Incorporation
and Authorization.
Such Shareholder has all necessary power, authority, capacity and
right to
enter into this Agreement and to carry out each of its obligations
under
this Agreement. This Agreement has been duly executed and delivered
by
such Shareholder and constitutes a legal, valid and binding obligation
of
such Shareholder enforceable against it in accordance with its terms,
subject to bankruptcy and insolvency and other laws affecting the
enforcement of creditors’ rights generally and subject to the
qualification that equitable remedies may only be granted in the
discretion of a court of competent jurisdiction.
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(b)
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Ownership
of Shares and Other Securities.
Such Shareholder is, and will be immediately prior to the Effective
Date,
the sole registered and beneficial owner of its Shareholder’s Shares shown
opposite its name as being beneficially owned in Schedule 4.1(b),
with good and marketable title thereto, free and clear of all
Encumbrances, and has full legal right, power and authority to enter
into
this Agreement, to deposit, or to cause the deposit of, its Shareholder’s
Shares under the Offer and to sell, or to cause the sale of, its
Shareholder’s Shares to the Offeror pursuant to the Offer; upon take-up of
and payment for its Shareholder’s Shares, such Shareholder will have
conveyed to the Offeror good and marketable title to its beneficially
owned Shareholder’s Shares, free and clear of any Encumbrances (excluding
any Encumbrances that have been granted by or that may be claimed
in
respect of the Offeror).
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5
(c)
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No
Conflicts.
None of the execution and delivery of this Agreement by such Shareholder,
the consummation by such Shareholder of the transactions contemplated
hereby nor compliance by such Shareholder with any of the provisions
hereof will violate, conflict with, or result in a breach of any
provision
of, require any consent, approval or notice under, or constitute
a default
(or an event which, with notice or lapse of time or both, would constitute
a default) or result in a right of termination or acceleration under,
any
of the terms, conditions or provisions of: (i) the certificate of
incorporation, certificate of limited partnership, Articles or by-laws
or
other constating documents of such Shareholder; or (ii) any material
Contract to which such Shareholder is a party; or (iii) violate any
judgment, ruling, order, writ, injunction, award, decree, statute,
ordinance, rule or regulation applicable to such
Shareholder.
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(d)
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No
Agreements.
No Person has any agreement or option, or any right or privilege
(whether
by law, pre-emptive or contractual) capable of becoming an agreement
or
option, for the purchase, acquisition or transfer of any of its
Shareholder’s Shares, or any interest therein or right thereto, except
pursuant to this Agreement.
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(e)
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Voting.
None of its Shareholder’s Shares is subject to any proxy, power of
attorney, voting agreement, voting trust, vote pooling or other agreement
with respect to the right to vote, call meetings of shareholders
or give
consents or approvals of any kind.
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(f)
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Consents.
No consent, waiver, approval, authorization, exemption, registration,
licence or declaration of or by, or filing with, or notification
to any
Government Authority which has not been made or obtained is required
to be
made or obtained by such Shareholder in connection with (i) the execution
and delivery by such Shareholder of this Agreement or the performance
of
its obligations hereunder, or (ii) the consummation of any transactions
by
such Shareholder provided for herein, except for, in either case,
the
filing of reports under applicable securities
legislation.
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(g)
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Legal
Proceedings.
There are no legal proceedings in progress or pending before any
Government Authority or threatened against such Shareholder or any
of its
affiliates that would adversely affect in any manner the ability
of such
Shareholder to enter into this Agreement and to perform its obligations
hereunder or the title of such Shareholder to any of its beneficially
owned Shareholder’s Shares and there is no judgment, decree or order
against such Shareholder that would adversely affect in any manner
the
ability of such Shareholder to enter into this Agreement and to perform
its obligations hereunder or the title of such Shareholder to any
of its
beneficially owned Shareholder’s Shares.
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(h)
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Agreements
with Company.
Except as disclosed in the Company Reports or as previously disclosed
in
writing to the Offeror, such Shareholder is not a party to any Contract
with the Company or any of its Subsidiaries.
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(i)
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Claims.
Except as disclosed in the Company Reports or as previously disclosed
in
writing to the Offeror, such Shareholder has no Claims against the
Company
or any of its Subsidiaries as of the date hereof and will not have
any
Claims against the Company or any of its Subsidiaries by reason of
entering into this Agreement.
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6
The
representations and warranties of each Shareholder set forth in this Section
4.1
shall survive the completion of the purchase by the Offeror of its Shareholder’s
Shares and despite such completion, shall continue in full force and effect
for
the benefit of the Offeror.
4.2
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Representations
and Warranties of the
Offeror
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The
Offeror hereby represents and warrants to each Shareholder each of the
representations and warranties of the Offeror contained in the Support
Agreement, which are incorporated herein by reference, and that:
(a)
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Incorporation.
The Offeror is a corporation duly incorporated and is validly existing
as
a corporation in good standing under the laws of the State of
Delaware.
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(b)
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Power
and Authority.
The Offeror has the requisite corporate power and authority to enter
into
this Agreement and to carry out its obligations hereunder. This Agreement
has been duly executed and delivered by the Offeror and constitutes
the
legal, valid and binding obligation of the Offeror enforceable against
it
in accordance with its terms, subject to bankruptcy and insolvency
and
other laws affecting the enforcement of creditors’ rights generally and
subject to the qualification that equitable remedies may only be
granted
in the discretion of a court of competent jurisdiction.
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(c)
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No
Conflicts.
None of the execution and delivery of this Agreement by the Offeror,
the
consummation by the Offeror of the transactions contemplated hereby
nor
compliance by the Offeror with any of the provisions hereof will
violate,
conflict with, or result in a breach of any provision of, require
any
consent, approval or notice under, or constitute a default (or an
event
which, with notice or lapse of time or both, would constitute a default)
or result in a right of termination or acceleration under, any of
the
terms, conditions or provisions of: (i) the certificate of incorporation
or by-laws of the Offeror; or (ii) any material Contract to which
the
Offeror or any of its Subsidiaries is a party; or (iii) subject to
compliance with applicable Laws as provided in the Support Agreement,
violate any judgment, ruling, order, writ, injunction, award, decree,
statute, ordinance, rule or regulation applicable to the Offeror
or any of
its Subsidiaries.
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(d)
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Consents.
No consent, waiver, approval, authorization, exemption, registration,
licence or declaration of or by, or filing with, or notification
to any
Government Authority which has not been made or obtained is required
to be
made or obtained by the Offeror in connection with (i) the execution
and delivery by the Offeror of this Agreement or the performance
of its
obligations hereunder, or (ii) the consummation of any transactions
by the Offeror provided for herein, except as provided in the Support
Agreement.
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(e)
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Legal
Proceedings.
There are no legal proceedings in progress or pending before any
Government Authority or threatened against the Offeror or any of
its
affiliates that would adversely affect in any manner the ability
of the
Offeror to enter into this Agreement and to perform its obligations
hereunder and there is no judgment, decree or order against the Offeror
that would adversely affect in any manner the ability of the Offeror
to
enter into this Agreement and to perform its obligations
hereunder.
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7
The
representations and warranties of the Offeror set forth in this Section 4.2
shall survive the completion of the purchase by the Offeror of the Shareholder’s
Shares of each Shareholder and despite such completion, shall continue in full
force and effect for the benefit of each Shareholder.
ARTICLE
5
TERMINATION
5.1
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Termination
by the Offeror
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The
Offeror, when not in default in the performance of its material obligations
under this Agreement or the Support Agreement, may, without prejudice to any
of
its rights hereunder and in its sole discretion, terminate this Agreement (in
respect of a Shareholder) by written notice to such Shareholder if:
(a)
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any
of the representations and warranties of such Shareholder under this
Agreement shall not be true and correct in all material
respects;
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(b)
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such
Shareholder shall not have complied with its material covenants to
the
Offeror contained in this Agreement;
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(c)
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the
Offeror shall not be required to make the Offer under the terms and
conditions of the Support Agreement;
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(d)
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any
condition to completion of the Offer, as set out in Schedule 2.1(a)
to the Support Agreement, is not satisfied or waived prior to the
Expiry
Date; or
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(e)
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the
Support Agreement has been terminated in accordance with its
terms.
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8
5.2
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Termination
by the Shareholder
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Each
Shareholder, when not in material default in the performance of its obligations
under this Agreement, may, without prejudice to any of its rights hereunder
and
in its sole discretion, terminate this Agreement by written notice to the
Offeror if:
(a)
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any
of the representations and warranties of the Offeror under this Agreement
shall not be true and correct in all material respects;
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(b)
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the
Offeror shall not have complied with its material covenants to such
Shareholder contained herein;
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(c)
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the
terms of the Offer do not conform with the provisions of the Support
Agreement;
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(d)
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the
Take-up Date has not occurred within 120 days of the Latest Mailing
Time;
provided, however, that if the Offeror's take-up and payment for
Shares
deposited under the Offer is delayed by (i) an injunction or order
made by
a court or regulatory authority of competent jurisdiction, or (ii)
the
Offeror not having obtained any regulatory waiver, consent or approval
which is necessary to permit the Offeror to take up and pay for Shares
deposited under the Offer, then, provided that such injunction or
order is
being contested or appealed or such regulatory waiver, consent or
approval
is being actively sought, as applicable, this Agreement shall not
be
terminated by such Shareholder pursuant to this Section 5.2(d) until
the
earlier of (a) 180 days after the Offer is commenced and (B) the
tenth
Business Day following the date on which such injunction or order
ceases
to be in effect or such waiver, consent or approval is obtained,
as
applicable;
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(e)
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the
Offeror has not mailed the Offer within the time period provided
for in
section 2.1(c) of the Support Agreement;
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(f)
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the
Support Agreement has been terminated in accordance with its terms;
or
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(g)
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a
bona
fide
written proposal for an Alternative Transaction is made available
to all
holders of Shares on identical terms which, if consummated in accordance
with its terms, would result in a transaction more favourable to
such
Shareholder from a financial point of view than the Offer, as determined
by such Shareholder, acting reasonably (a "Superior
Proposal"),
and the Offeror does not increase the consideration under the Offer
to
consideration at least equivalent to the consideration under the
Superior
Proposal on or prior to the earlier to occur of (i) the third Business
Day
after the Shareholders or the Company, whichever is first, have advised
the Offeror that they or it, as applicable, consider such Alternative
Transaction to be a Superior Proposal, and (ii) the last day on which
such
Shareholder can prudently withdraw the Shares it has deposited under
the
Offer in order to tender, deposit or otherwise deliver such Shares
to the
Person making the Superior
Proposal.
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5.3
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Agreement
to Terminate
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This
Agreement, in respect of a Shareholder, may be terminated by a written
instrument executed by the Offeror and such Shareholder.
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5.4
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Effect
of Termination
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If
this
Agreement is terminated in accordance with this Article 5, subject to Section
5.5, the provisions of this Agreement will become null and void and of no
further force and effect and no party shall have liability to any other party,
except in respect of a breach of this Agreement which occurred prior to such
termination, and the Offeror shall no longer be required to make or pursue
the
Offer and, if the Offer has been made, the Shareholder in respect of which
this
Agreement is terminated shall be entitled to withdraw its Shareholder’s Shares
from the Offer.
5.5
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Automatic
Termination
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Subject
to the survival of representations and warranties as contemplated in Sections
4.1 and 4.2, this Agreement shall terminate automatically in respect of a
Shareholder immediately following the completion of the purchase by the Offeror
of the Shareholder’s Shares of such Shareholder.
ARTICLE
6
GENERAL
6.1
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Further
Assurances
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Each
of the Shareholders and the Offeror will, from time to time, promptly
execute and deliver all such further documents and instruments and
do all
such acts and things as the other party may reasonably require to
effectively carry out or better evidence or perfect the full intent
and
meaning of this Agreement.
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6.2
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Survival
of Representations and Warranties
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No
investigations made by or on behalf of the Offeror or any of its
authorized agents at any time shall have the effect of waiving,
diminishing the scope of or otherwise affecting any representation,
warranty or covenant made by any Shareholder herein or pursuant
hereto.
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6.3
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Disclosure
|
Except
as expressly contemplated herein or as required by applicable Laws
or by
any Government Authority or Securities Authority, no party shall
make any
public announcement or statement with respect to this Agreement or
the
transactions contemplated herein without the approval of the other
parties, which approval shall not be unreasonably withheld or delayed.
Each Shareholder acknowledges that the Offeror and the Company are
required by Law to disclose the nature and substance of this Agreement
in
the Bid Circular and Directors’ Circular and a copy may be filed with
applicable Securities Authorities. The parties agree to consult with
each
other prior to issuing any public announcement or statement with
respect
to this Agreement or the transactions contemplated
herein.
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10
6.4
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Singular,
Plural, etc.
|
In
this Agreement, words importing the singular number include the plural
and
vice versa and words importing gender include the masculine, feminine
and
neuter genders. Unless the context otherwise requires, any reference
to a
“party” herein is a reference to a party hereto. Any references to
“including” or “includes” means “including (or includes) without
limitation”.
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6.5
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Deemed
Currency
|
Unless
otherwise expressly stated, all references to dollars, “$” or currency
herein shall be deemed to be references to U.S.
currency.
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6.6
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Headings,
etc.
|
The
division of this Agreement into Articles, Sections and Schedules,
the
provision of a table of contents hereto and the insertion of the
recitals
and headings are for convenience of reference only and shall not
affect
the construction or interpretation of this Agreement and, unless
otherwise
stated, all references in this Agreement or in the Schedules hereto
to
Articles, Sections and Schedules refer to Articles, Sections and
Schedules
of and to this Agreement or of the Schedules in which such reference
is
made, as applicable.
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6.7
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Date
for any Action
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In
the event that any date on which any action is required to be taken
hereunder by any of the parties is not a Business Day, such action
shall
be required to be taken on the next succeeding day which is a Business
Day.
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6.8
|
Governing
Law
|
This
Agreement shall be governed by and interpreted in accordance with
the laws
of the Province of British Columbia and the laws of Canada applicable
therein.
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6.9
|
Attornment
|
The
parties hereby irrevocably and unconditionally consent to and submit
to
the non-exclusive jurisdiction of the courts of the Province of British
Columbia for any actions, suits or proceedings arising out of or
relating
to this Agreement or the matters contemplated hereby and further
agree
that service of any process, summons, notice or document by single
registered mail to the addresses of the parties set forth in this
Agreement shall be effective service of process for any action, suit
or
proceeding brought against either party in such court. The parties
hereby
irrevocably and unconditionally waive any objection to the laying
of venue
of any action, suit or proceeding arising out of this Agreement or
the
matters contemplated hereby in the courts of the Province of British
Columbia and hereby further irrevocably and unconditionally waive
and
agree not to plead or claim in any such court that any such action,
suit
or proceeding so brought has been brought in an inconvenient
forum.
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11
6.10
|
Entire
Agreement
|
This
Agreement, including the schedules hereto and the provisions of the
Support Agreement incorporated herein by reference, constitutes the
entire
agreement and understanding between and among the parties hereto
with
respect to the subject matter hereof and supersedes any prior agreement or
understanding with respect thereto.
|
|
6.11
|
Amendments
|
This
Agreement may not be modified, amended, altered or supplemented,
except by
written agreement executed by all of the parties
hereto.
|
|
6.12
|
Notices
|
Any
notice, consent, waiver, direction or other communication required
or
permitted to be given under this Agreement by a party shall be in
writing
and shall be given by delivery, or by facsimile transmission or by
delivery addressed to the party to which the notice is to be given
at its
address for service herein. Any notice, consent, waiver, direction
or
other communication aforesaid shall, if delivered, be deemed to have
been
given and received on the date on which it was delivered to the address
provided herein (if a Business Day, if not, then the next succeeding
Business Day) and if sent by facsimile transmission be deemed to
have been
given and received at the time of receipt (if a Business Day, if
not, then
the next succeeding Business Day) unless actually received after
4:00 p.m.
(Vancouver time) at the point of delivery in which case it shall
be deemed
to have been given and received on the next Business
Day.
|
The
address for service for each of the parties hereto shall be as
follows:
(a)
|
if
to the Shareholders:
|
|
|
Xxxxx
Brothers Investments
|
|
000
Xxxxxxx Xxxxx, 00xx Xxxxx
|
||
Xxx
Xxxx, XX 00000
|
||
Attention:
|
Xxxxx
Xxxxx
|
|
Fax
No.:
|
000.000.0000
|
|
with a copy for information purposes but not as notice to: | ||
Xxxxxxxx & Xxxxxxxx LLP | ||
000
Xxxxx Xxxxxx
|
||
Xxx
Xxxx, XX 00000-0000
|
||
Attention:
|
Xxxxxxx
Xxxx
|
|
Fax
No.:
|
000.000.0000
|
|
and
to:
|
||
Davies
Xxxx Xxxxxxxx & Xxxxxxxx LLP
|
||
0
Xxxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
|
||
Xxxxxxx,
XX X0X 0X0
|
||
Attention:
|
Xxxx
Xxxxxx and Xxxxx Xxxx
|
|
Fax
No.:
|
000.000.0000
|
12
(b)
|
if
to the Offeror:
|
|
Millennium
Pharmaceuticals, Inc.
|
||
00
Xxxxxxxxx Xxxxxx
|
||
Xxxxxxxxx,
XX 00000
|
||
Attention:
|
General
Counsel
|
|
Fax
No.:
|
000.000.0000
|
|
with
a copy for information purposes but not as notice to:
|
||
XxXxxxxx
Xxxxxxxx XXX
|
||
Xxxxx
0000, Xxxxxxx Xxxxxx
|
||
000
Xxxxxxxx Xxxxxx
|
||
Xxxxxxxxx,
XX X0X 0X0
|
||
Attention:
|
Xxx
XxXxxxxxxx
|
|
Fax
No.:
|
000.000.0000
|
|
and
to:
|
||
|
Xxxxxx
Xxxx
|
|
000
Xxxxx Xxxxxx
|
||
Xxxxxx,
XX 00000
|
||
Attention:
|
Xxxxxxx
XxXxxxxx
|
|
Fax
No.:
|
000.000.0000
|
13
6.13
|
Specific
Performance and other Equitable Rights
|
It
is recognized and acknowledged that a breach by any party of any
material
obligations contained in this Agreement will cause the other party
to
sustain injury for which it would not have an adequate remedy at
law for
money damages. Accordingly, in the event of any such breach, any
aggrieved
party shall be entitled to the remedy of specific performance of
such
obligations and interlocutory, 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.
|
|
6.14
|
Assignment
|
Except
as expressly permitted by the terms hereof, neither this Agreement
nor any
of the rights, interests or obligations hereunder shall be assigned
by any
of the Shareholders without the prior express written consent of
the
Offeror and by the Offeror without the prior express written consent
of
the Shareholders. Notwithstanding the foregoing provisions of this
Section 6.14, the Offeror may assign all or any part of its rights or
obligations under this Agreement to a direct or indirect wholly-owned
Subsidiary of the Offeror, to a corporation which directly or indirectly
wholly-owns the Offeror, or to a direct or indirect wholly-owned
Subsidiary of such a corporation, provided that any such assignment
will
have no adverse tax or other effects to each Shareholder under the
Offer,
and provided further that if such assignment takes place, the Offeror
shall continue to be liable to the Shareholders for any default in
performance by the assignee.
|
|
6.15
|
Expenses
|
Each
of the parties shall pay its respective legal, financial advisory
and
accounting costs and expenses incurred in connection with the preparation,
execution and delivery of this Agreement and all documents and instruments
executed or prepared pursuant hereto and any other costs and expenses
whatsoever and howsoever incurred.
|
|
6.16
|
Severability
|
Whenever
possible, each provision of this Agreement shall be interpreted in
such
manner as to be effective and valid under applicable Law. Any provision
of
this Agreement that is invalid or unenforceable in any jurisdiction
shall
be ineffective only to the extent of such invalidity or unenforceability
without invalidating or rendering unenforceable the remaining provisions
hereof, and any such invalidity or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any
other
jurisdiction.
|
|
6.17
|
Counterpart
Execution
|
This
Agreement may be executed in any number of counterparts, each of
which
shall be deemed to be an original but all of which together shall
constitute one and the same agreement effective as of the date
hereof.
|
|
6.18
|
Several
Obligations of Shareholders
|
The obligations
of the Shareholders hereunder are several on the part of each Shareholder, and are not joint and several
among the Shareholders.
|
14
MILLENNIUM
PHARMACEUTICALS, INC.,
|
||
|
|
|
By: | ||
Name:
|
||
Title |
XXXXX
BIOTECH FUND I, L.P.
|
||
By: | Xxxxx/Tisch Capital, L.P., | |
its general partner |
By: |
XXXXX
BIOTECH FUND (GP), LLC,
|
|
its general partner |
By: | ||
Name: Xxxxx Xxxxx, Ph.D |
||
Title: Managing Member |
15
14159, L.P. | ||
By: | 14159 Capital, L.P., | |
its general partner |
By: | 14159 Capital (GP), LLC, | |
its general partner |
By: | ||
Name:
Xxxxx Xxxxx, Ph.D
|
||
Title: Managing
Member
|
XXXXX
BROTHERS LIFE SCIENCES, L.P.
|
||
By: | Xxxxx Brothers Life Sciences Capital, L.P. | |
its
general partner
|
By: | Xxxxx Brothers Life Sciences Capital, (GP) LLC, | |
its
general partner
|
By: | ||
Name:
Xxxxx Xxxxx, Ph.D
|
||
Title: Managing
Member
|
XXXXX/TISCH
INVESTMENTS, L.P.
|
||
By: | Xxxxx/Xxxxx Capital, L.P., | |
its
general partner
|
By: | Xxxxx/Tisch Capital, (GP), LLC, | |
its
general partner
|
By: | ||
Name:
Xxxxx Xxxxx, Ph.D
|
||
Title: Managing
Member
|
16
XXXXX
BROS. INVESTMENTS, L.P.
|
||
By: | Xxxxx Bros. Capital, L.P., | |
its
general partner
|
By: | Xxxxx Bros. Capital (GP), LLC, | |
its
general partner
|
By: | ||
Name:
Xxxxx Xxxxx, Ph.D
|
||
Title: Managing
Member
|
XXXXX
BROS. INVESTMENTS II, L.P.
|
||
By: | Xxxxx Bros. Capital, L.P., | |
its
general partner
|
By: | Xxxxx Bros. Capital (GP), LLC, | |
its
general partner
|
By: | ||
Name:
Xxxxx Xxxxx, Ph.D
|
||
Title: Managing
Member
|
17
Schedule
4.1(b) - Shareholders and Ownership of Shares
Registered
and Beneficial Owner
|
|
|
Xxxxx
Bros. Investments, L.P.
|
330,058
|
|
Xxxxx
Bros. Investments II, L.P.
|
351,749
|
|
Xxxxx
Biotech Fund I, L.P.
|
3,604,620
|
|
14159,
L.P.
|
83,137
|
|
Xxxxx/Xxxxx
Investments, L.P.
|
28,177
|
|
Xxxxx
Brothers Life Sciences, L.P.
|
5,013,859
|
|
TOTAL
|
9,411,500
|
18