HAEMACURE CORPORATION
THIRD SHAREHOLDERS AGREEMENT
THIS THIRD SHAREHOLDERS AGREEMENT (the "Agreement") is made and entered
into as of the 15th day of June, 1999, by and among INVESTISSEMENTS BIOCAPITAL,
a limited partnership formed under the laws of the Province of Quebec, Canada
("BioCapital"), MULTIPEDE HOLDINGS INC., a corporation incorporated under the
laws of Canada ("Multipede"), FONDS DE SOLIDARITE DES TRAVAILLEURS DU QUEBEC
(F.S.T.Q.), a corporation incorporated under the laws of the Province of Quebec,
Canada ("Fonds"), INDUSTRIES DEVMA INC., a corporation incorporated under the
laws of the Province of Quebec, Canada ("Devma"), and ZLB CENTRAL LABORATORY
BLOOD TRANSFUSION SERVICE SRC, a foundation organized under the laws of
Switzerland ("ZLB").
RECITALS
WHEREAS, BioCapital, Multipede, Fonds and Devma are collectively referred
to herein as the "Significant Shareholders" and individually as a "Significant
Shareholder" and the Significant Shareholders and ZLB are collectively referred
to herein as the "Shareholders" and individually as a "Shareholder";
WHEREAS, the stated capital of Haemacure Corporation, a corporation
incorporated under the laws of Canada (the "Company") consists of an unlimited
number of common shares and an unlimited number of preferred shares
(collectively, the "Shares" and individually, a "Share");
WHEREAS, the Significant Shareholders are parties to a Shareholders
Agreement dated June 20, 1996 (the "First Shareholders Agreement") and the
Shareholders are party to a Second Shareholders Agreement dated July 31, 1998,
as amended October 26, 1998 (the "Second Shareholders Agreement");
WHEREAS, pursuant to the terms of a Subscription Agreement dated July 31,
1998 between ZLB and the Company (the "First Subscription Agreement"), ZLB has
purchased and currently owns 811,605 Shares of the Company;
WHEREAS, pursuant to the terms of a Second Subscription Agreement between
ZLB and the Company (the "Second Subscription Agreement"), ZLB will subscribe
for and purchase an additional number of Shares from the Company;
WHEREAS, pursuant to the terms of a Licensing Agreement between the Company
and ZLB (the "Licensing Agreement"), the Company is granting ZLB a non-exclusive
world-wide license to the Company's patents and technology relating to a fibrin
sealant project known as Hemaseel HMN, the result of which allows both ZLB and
the Company to market this product and its derivatives (the Products"); and
WHEREAS, in light of the investment in the Company by ZLB pursuant to the
First Subscription Agreement and the proposed additional investment in the
Company by ZLB pursuant to the Second Subscription Agreement, and in light of
the change in the relationship between ZLB and the Company resulting from the
Licensing Agreement, and because the parties desire to provide for stability in
the composition of the Board of Directors of Company (the "Board"), the parties
hereto believe it is in their mutual best interests to enter into an agreement
on certain matters on the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth below,
and as an inducement to ZLB to execute the Subscription Agreement and ZLB and
the Company to execute the License Agreement, the parties to this Agreement
hereby mutually covenant and agree as follows:
1. Representation on the Board.
(a) Number. The Shareholders shall vote their respective Shares to
maintain the number of directors of the Company at nine (9).
(b) Voting of Shares. Subject to all of the provisions of Section 1
listed below, the Shareholders shall vote their respective Shares so that
each Shareholder or, if such Shareholder is Fonds or BioCapital, then
BioCapital Group (as defined in Section l.(c)), shall be entitled to
appoint one (1) representative on the Board for each block of 10% held by
it in the issued and outstanding common shares (computed on a fully diluted
basis) of the capital stock of the Company.
(c) BioCapital Group. For the purposes of Section 1.(b) only, Fonds
and BioCapital (collectively, the "BioCapital Group") shall be considered
as one Shareholder and their respective shareholdings shall be combined for
the purpose of computing the percentage of common shares held in the
Company. None of the other Shareholders shall be entitled to combine their
respective shareholdings for the purpose of computing their percentage of
common shares held in the Company.
(d) ZLB. Notwithstanding Section l.(b) and until the earlier of (i)
ZLB's termination of or failure to supply the Products pursuant to the
Licensing Agreement and that certain Supply Agreement of even date herewith
between ZLB and Company, or (ii) the Company completes a secondary offering
of its Shares for greater than USD $10,000,000 (a "Triggering Event")
occurs, the Shareholders shall vote their respective Shares so that ZLB
shall be entitled to appoint three (3) representatives on the Board. Upon
the occurrence of Triggering Event, the Shareholders shall vote their
respective Shares so that ZLB shall be entitled to appoint a ZLB Appointed
Director for each block of 10% held by ZLB of the then-issued and
outstanding common shares (computed on a fully diluted basis) of the
capital stock of the Company, provided that the restrictions of this
Section 1.(b) shall apply.
(e) Multipede. Notwithstanding Section 1.(b) and until the earlier of
the Triggering Event described in Section l.(d)(ii) above occurs, the
Shareholders shall
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vote their respective Shares so that Multipede shall be entitled to appoint
one (1) representative on the Board.
(f) Removal. Notwithstanding Section 1.(b), until the earlier of the
registration of the common shares of the Company on a registered exchange
in the United States or the 2000 Annual General Meeting of Shareholders,
the Shareholders (i) shall not remove any director who was elected pursuant
to this Section 1, and (ii) shall not remove the Chief Executive Officer of
Company as of the date hereof.
2. U.S. Exchange Listing
(a) The Shareholders agree to undertake to consent to or otherwise use
all necessary actions requested of them to seek a listing of the Company's
common shares on a nationally recognized stock exchange or over-the-counter
market in the United States at a commercially advisable time, contemplated
to be within six months following the date of this Agreement.
(b) ZLB agrees not to offer or sell any of the common shares that are
the subject of this Agreement for a period of 6 months after issuance of
the Shares the subject of this Agreement (the "First 6 Months") and further
agrees that for a period of 6 months following the First 6 Months, ZLB
shall not offer or sell its Shares without first offering such shares to
the other Shareholders. If the other Shareholders elect not to purchase
such shares, ZLB will have 30 days to complete the sale on terms no more
favorable than those offered to the other Shareholders, failing which, the
foregoing sale provisions will again apply to any proposed sale. The terms
of any planned sale during the first 12 Months after issuance of the Shares
are first disclosed to the board of directors.
3. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors,
transferees, assigns, heirs, legatees, executors, personal representatives.
4. Applicable Law. The validity, construction, enforcement and effect of
this Agreement shall be governed by the laws of Quebec, Canada.
5. Effective Date. This Agreement shall become effective upon and
conditioned upon the execution of the Second Subscription Agreement by ZLB and
the Company.
6. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7. Complete Agreement. Except with respect to the Shareholders Agreement,
which shall remain in full force and effect except as provided in Section 1 of
the Second Shareholders Agreement, and except with respect to the First
Subscription Agreement and the Second Subscription Agreement, this Agreement
supersedes all prior agreements or understandings (including but not limited to
the Second Shareholder Agreement except as set forth herein) between the parties
or any of them respecting the Shares.
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8. Provisions Severable. If any provision of this Agreement shall be found
to be invalid under the laws of any jurisdiction, such invalid provision shall
be deemed severed from this Agreement, and shall not affect the validity of any
other provision of this Agreement, which shall be interpreted and enforced in a
manner which gives full effect to the intention of the parties as expressed
herein.
9. Amendment or Termination. This Agreement may be amended, modified,
superseded or terminated, and any of the terms may be waived, only by a written
instrument executed by all of the Shareholders or, in the case of a waiver, by
whichever party is waiving compliance.
10. Notice. Every notice or request required or permitted herein to be
given to any of the parties hereto shall be in writing and telecopied or
delivered to the parties at each party s most recent address as reflected in
Company's records. Any such notice delivered by hand or by telecopier shall be
deemed to have been received at the time of confirmed transmission, in the case
of a transmission by telecopier, or at the time of delivery, if delivered by
hand.
11. Headings. The headings for the Sections of this Agreement are inserted
for convenience only and shall not constitute a part thereof.
12. Agreement Drafted by Company's Counsel. The parties hereto acknowledge
that Company's United States counsel, Xxxxx & Xxxxxxx, prepared this Agreement
on behalf of and in the course of their representation of Company and that the
Shareholders considered the advisability of consulting with independent legal
counsel.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVESTISSEMENTS BIOCAPITAL,
Limited Partnership
By: /s/ X. Xxxxxxxxxx
-----------------------------------------
X. Xxxxxxxxxx
Title: President and Chief Executive Officer
MULTIPEDE HOLDINGS INC.
By: /s/ X. Xxxxxx
-----------------------------------------
X. Xxxxxx
Title: President
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XXXXX XX XXXXXXXXXX XXX XXXXXXXXXXXX XX
XXXXXX (F.T.Q.)
By: /s/ Xxxxxxx Xxxxxxxx, ing.Ph.D.
-----------------------------------------
Xxxxxxx Xxxxxxxx, ing.Ph.D.
Title: Vice-president de groupe aux
investissements technologiques
INDUSTRIES DEVMA INC.
By:
-----------------------------------------
Title:
ZLB CENTRAL LABORATORY
BLOOD TRANSFUSION SERVICE SRC
By: /s/ X. Xxxxxxxx
-----------------------------------------
X. Xxxxxxxx
Title: President and Chief Executive Officer
By: /s/ Xx. X. Xxxxxx
-----------------------------------------
Xx. X. Xxxxxx
Title: Chairman of the Board
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