SHAREHOLDERS AGREEMENT
Memorandum of Agreement made and entered into at the city of Montreal, Province
of Quebec, on the 20th day of June, 1996 (hereinafter referred to as the
"Agreement").
AMONG: SOCIETE EN COMMANDITE FONDS D'INVESTISSEMENT EN BIOTECHNOLOGIE
BIOCAPITAL, a limited partnership formed under the laws of the Province
of Quebec, herein acting and represented by its general partner, Gestion
et investissement en biotechnologie Biocapital Inc. (hereinafter
referred to as "Biocapital I")
Party of the First Part
AND: SOCIETE EN COMMANDITE FONDS D'INVESTISSEMENT EN BIOTECHNOLOGIE
BIOCAPITAL II, a limited partnership formed under the laws of the
Province of Quebec, herein acting and represented by its general
partner, Gestion Biocapital II Inc. (hereinafter referred to as
"Biocapital II")
Party of the Second Part
AND: MULTIPEDE HOLDINGS INC., a body politic duly incorporated under the laws
of Canada (hereinafter referred to as "Multipede")
Party of the Third Part
AND: FONDS DE SOLIDARITE DES TRAVAILLEURS DU QUEBEC (F.T.Q.), a body politic
duly incorporated under the Loi constituant le Fonds de solidarite des
travailleurs du Quebec (F.T.Q.) (hereinafter referred to as the "Fonds")
Party of the Fourth Part
AND: INDUSTRIES DEVMA INC., a body politic duly incorporated under the laws
of Quebec (hereinafter referred to as "Devma")
Party of the Fifth Part
(Biocapital I, Biocapital II, Multipede, Fonds and Devma are hereinafter
collectively referred to as the "Shareholders" and individually as a
"Shareholder")
AND XXXXX XXXXXX, residing in the city of Sarasota, Florida, U.S.A.
Party of the Sixth Part
AND: XXXX XXXXXX, residing in the city of Sarasota, Florida, U.S.A.
Party of the Seventh Part
Whereas the stated capital of Haemacure Corporation (the "Corporation") consists
of an unlimited number of common shares and an unlimited number of preferred
shares (hereinafter referred to collectively as the "Shares" and individually as
a "Share");
Whereas the Corporation intends to make an initial public offering on or before
July 31, 1996;
Whereas Biocapital I, Biocapital II, Multipede, Capital Pharma Inc.,
Pharmascience Inc., Haemacure Biothech and Company, Limited Partnership Xx. 0,
Xxxxxxx Xxxxxxxxxx xx Xxxxx Xxxxxxxx, Fonds, Devma and the Corporation entered
into a unanimous Shareholders' Agreement on July 27, 1994;
Whereas the Parties to the unanimous Shareholders' Agreement have agreed,
pursuant to an agreement dated April 24, 1996, to terminate the unanimous
Shareholders' Agreement of July 27, 1994 upon the date of closing of the initial
public offering of the Corporation, provided that closing occurs on or before
July 31, 1996;
Whereas pursuant to said agreement dated April 24, 1996, the parties hereto
agreed to enter into a Shareholders' Agreement to take effect upon termination
of the unanimous Shareholders' Agreement dated July 27, 1994 and provided
closing of the initial public offering of the Corporation occurs on or before
July 31, 1996;
Whereas Xxxx Xxxxxx and Xxxxx Xxxxxx collectively control (as this term is
defined in the Canada Business Corporations Act) Multipede;
Now therefore, in consideration of the mutual covenants, agreements,
representations and warranties herein set forth and provided for, the parties do
hereby agree as follows:
1. Representation on the Board of Directors of the Corporation
1.1. Subject to Section 1.2 below, the Shareholders covenant and agree to
vote their respective Shares so that upon the filing of the Prospectus
(as defined in Section 4.1 below), Devma shall be entitled to appoint
two (2) representatives on the Board of Directors of the Corporation
and of each subsidiary thereof (hereinafter referred to
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collectively as the "Board") and Biocapital I and Biocapital II
together, Fonds and Multipede shall each be entitled to appoint one
(1) such representative;
1.2. Notwithstanding Section 1.1 and subject to Section 1.3 below, as soon
as a Shareholder disposes of or acquires Shares from the date hereof,
then such Shareholder or, if such Shareholder is Fonds, Biocapital I
or Biocapital II, then Biocapital Group (as defined below) 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
Corporation.
1.3. For the purposes of Section 1.2 above only, Fonds, Biocapital I and
Biocapital II (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 Corporation; for greater certainty, 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 Corporation.
2. Exercise of the Right to Vote
2.1. Each of the Shareholders covenants and agrees to vote its Shares at
all times and to cause its nominee or nominees to the Board to act at
all times, in order to give full effect to the provisions of this
Agreement, the whole subject to the fiduciary duties of the directors
of the Corporation to act at all times in the best interest of the
Corporation.
3. Right of First Refusal
3.1. Sale of a Block of Shares. In the event that a Shareholder
(hereinafter referred to as the "Selling Shareholder") wishes to sell
a Block of Shares (as defined in Section 3.3 below) or receives a bona
fide arms-length offer (hereinafter referred to as the "Third Party
Offer") from a third party (hereinafter referred to as the "Third
Party") to purchase a Block of Shares for a consideration expressed
and payable in cash or by certified cheque at closing and if Selling
Shareholder wishes to accept the Third Party Offer, the following
provisions shall apply:
(i) such Shareholder shall forward a notice in writing (hereinafter
referred to as the "Notice") to all of the other Shareholders
(hereinafter referred to as the "Remaining Shareholders")
stating the number of Shares it wishes to sell and the minimum
price per share below which it is not interested to sell its
Block of Shares or, as the case may be, that it has received a
Third Party Offer which it wishes to accept and indicating the
number of Shares to be sold by the Selling Shareholder, the
price per share at which such Selling Shareholder intends to
sell to the Third Party, any reasonable information on the
Third Party which the Remaining Shareholders or any one of them
may request as well as a copy of the Third Party Offer (the
Shares to be sold by the Selling Shareholder either on the
stock market or pursuant to a Third
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Party Offer are hereinafter referred to collectively as the
"Offered Shares" and individually as an "Offered Share");
(ii) in the case of a sale of Shares on a stock exchange, each of
the Remaining Shareholders shall have twenty-four (24) hours
(excluding the hours forming part of a Saturday or a
non-juridical day within the meaning of the Code of Civil
Procedure of Quebec) from the date of receiving the Notice
within which to forward, in good faith, a notice in writing
(hereinafter referred to as the "Notice of Interest") to the
Selling Shareholder indicating that such Remaining Shareholder
is interested to purchase all, and not less than all, of the
Offered Shares of the Selling Shareholder for an amount equal
to the closing price of the common shares of the Corporation on
the Montreal Exchange ("ME") on the last day of the Time-limit
(as defined below) (the "Quoted Price") but subject to Section
3.1(ix) below; the forwarding of the Notice of Interest by a
Remaining Shareholder shall not impose upon it the obligation
to purchase the Offered Shares; each of the Remaining
Shareholders that has forwarded a Notice of Interest as per the
provisions of this paragraph (ii) shall have ten (10) days
(hereinafter referred to as the "Time-limit") from the date of
receiving the Notice within which to forward a notice in
writing (hereinafter referred to as the "Acceptance Notice") to
the Selling Shareholder indicating that:
(a) such Remaining Shareholder confirms that it shall purchase
all, and not less than all, of the Offered Shares of the
Selling Shareholder for an amount equal to the Quoted
Price but subject to Section 3.1(ix) below (hereinafter
referred to as the "First Option"); or
(b) such Remaining Shareholder does not wish to exercise the
First Option and the Selling Shareholder may, as far as
such Remaining Shareholder is concerned, proceed with the
sale of the Offered Shares (hereinafter referred to as the
"Second Option");
(iii) in the case of a Third Party Offer or in the case of a sale of
Shares other than on a stock exchange, each of the Remaining
Shareholders shall have ten (10) days from the date of
receiving the Notice within which to forward a notice in
writing (hereinafter referred to as the "Third Party Acceptance
Notice") to the Selling Shareholder indicating that:
(a) such Remaining Shareholder wishes to purchase all, and not
less than all, of the Offered Shares that it shall
purchase all, and not less than all, of the Offered Shares
of the Selling Shareholder for an amount equal to the
purchase price for such Offered Shares set forth in the
Third Party Offer or in the Notice, as the case may be
(hereinafter referred to as the "Third Party First
Option"); or
(b) such Remaining Shareholder does not wish to exercise the
Third Party First Option and the Selling Shareholder may,
as far as such
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Remaining Shareholder is concerned, proceed with the sale
of the Offered Shares (hereinafter referred to as the
"Third Party Second Option");
(iv) in the event that the Selling Shareholder does not receive from
a Remaining Shareholder the Notice of Interest, within the
twenty-four (24) hour delay mentioned in paragraph (ii) above
or, as the case may be, the Acceptance Notice or the Third
Party Acceptance Notice within the Time-limit, such Remaining
Shareholder shall be deemed to have elected the Second Option
or the Third Party Second Option, as the case may be;
(v) in the event that more than one (1) of the Remaining
Shareholders has elected the First Option or the Third Party
First Option, as the case may be, such Remaining Shareholders
shall be deemed to have elected to purchase all, and not less
than all, of the Offered Shares of the Selling Shareholder, (i)
pro rata to their respective holdings of common shares,
excluding the common shares held by the Selling Shareholder,
the shareholders of the Corporation not party to this Agreement
and the Remaining Shareholders having exercised the Second
Option, or the Third Party Second Option, as the case may be,
at the time of receipt of the Notice by such Remaining
Shareholders or (ii) as such Remaining Shareholders may
otherwise agree in writing amongst themselves; in the event
that only one (1) of the Remaining Shareholders has elected the
First Option, or the Third Party First Option, as the case may
be, such Remaining Shareholder shall be deemed to have elected
to purchase all, and not less than all, of the Offered Shares
of the Selling Shareholder;
(vi) the closing of the purchase and sale of the Offered Shares of
the Selling Shareholder, in accordance with the terms of this
Section 3.1 shall occur, notwithstanding anything to the
contrary in the Third Party Offer, two (2) days following the
expiry of the Time-limit at which time the purchase price
thereof shall be paid in full by cash or certified cheque and
ownership of the said common shares shall be transferred to the
purchaser(s) thereof, free and clear of all liens, charges or
encumbrances of any kind or nature whatsoever;
(vii) the Third Party Offer shall include a provision to the effect
that the Third Party shall execute at the time of closing of
its acquisition of the Offered Shares of the Selling
Shareholders, such documents, agreements and instruments as may
be necessary in the opinion of counsel to other Remaining
Shareholders, acting reasonably, to bind such Third Party to
the terms and conditions of this Agreement, it being understood
that such Third Party shall also benefit from the rights
conferred upon the Selling Shareholder hereunder;
(viii) the closing of the purchase and sale of the Offered Shares to
the Third Party shall occur within fifteen (15) days following
the expiry of the Time-limit, failing which the provisions of
this Section 3.1 shall apply de novo;
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(ix) in the case of a sale on a stock exchange, it is understood and
agreed that if the Quoted Price is lower than the minimum price
indicated in the Notice, the Selling Shareholder shall not be
obligated to sell any of the shares forming part of the Block
of Shares; it is also understood and agreed that if the Quoted
Price is greater by more than ten percent (10%) than the
closing price of the common shares of the Corporation on the ME
on the day the Notice is received by the Remaining
Shareholders, then any Remaining Shareholder having exercised
the First Option shall not be obligated to purchase the shares
which would otherwise have been attributed to it pursuant to
paragraph 3.1(v), provided it so notifies the Selling
Shareholder in writing on the day following the day on which
the Time-limit expires. Upon receiving any such notice, the
Selling Shareholder shall be entitled to sell on the ME or
another stock exchange all of such shares which otherwise would
have been purchased by the Remaining Shareholder at a price
which shall not be lower than the minimum price indicated in
the Notice, it being understood, for greater certainty, that
any purchaser of said shares shall not be bound by the
provisions of this Agreement;
(x) notwithstanding anything to the contrary in this Section 3.1,
it is understood and agreed that Multipede shall not, in the
case of a sale of Shares by it on a stock exchange, be bound by
the provisions of this Section 3.1 nor shall it benefit from
the right of first refusal in the case of a sale of Shares by a
Shareholder on a stock exchange.
3.2. Sale of less than a Block of Shares. The provisions of Section 3.1 shall
not apply in the event that a Selling Shareholder wishes to sell a number
of common shares in the capital stock of the Corporation which is less than
a Block of Shares.
3.3. Block of Shares. For the purposes of this Agreement, the expression "Block
of Shares" shall mean for each Shareholder, a number of Shares equal to
fifteen percent (15%) or more of the total number of Shares in the capital
stock of the Corporation held by such Shareholder on the date hereof as set
forth in Schedule "A" hereof (the "Aggregate Number of Shares") or, as the
case may be, shall mean the number of Shares representing less than 15% of
the Aggregate Number of Shares, if prior to the sale of such Shares the
Shareholder had sold or would sell in the course of such sale, either to a
Third Party or on a stock exchange, and either in one or more transactions,
a number of Shares totaling 15% of the Aggregate Number of Shares less one.
Each Shareholder covenants and agrees to notify in writing all the other
Shareholders of a sale of Shares (including the number of Shares sold)
which does not constitute a sale of a Block of Shares hereunder no later
than two (2) days following such sale.
4. Special Holding Requirement
4.1. Notwithstanding anything to the contrary herein, until the Corporation
receives the authorization from the competent regulatory authorities
of the United States of America to market Hemaseel(TM) HMN and another
product requiring technology
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developed by the Corporation in the field of fibrin sealant, Xxxx
Xxxxxx and Xxxxx Xxxxxx agree to hold, whether directly or indirectly,
a total of not less than 85% of the number of issued and outstanding
common shares of the stated capital of the Corporation held by them,
directly or indirectly, at the date of the receipt from the Quebec
Securities Commission for the final prospectus filed by the
Corporation (hereinafter referred to as the "Prospectus").
5. Respect of the Quebec Securities Commission Requirements
5.1. Multipede undertakes not to ask for the release of the Shares it holds
and which are escrowed pursuant to an escrow agreement dated June 13,
1996 between Devma, Multipede, Fonds, Biocapital I, Biocapital II,
Trust General du Canada and the Corporation except as specifically
provided for in section 5 of said escrow agreement.
6. Head Office Restrictions
6.1. The Shareholders agree to vote their respective Shares so that the
registered office of the Corporation and its decisional center be
maintained in the Province of Quebec for a period of at least five (5)
years from the date of the Prospectus. It is understood and agreed
that the foregoing shall not be construed as preventing the board of
directors of the Corporation from delegating decisional powers as and
when it sees fit.
7. Restrictions on the Vote
7.1. The common shares of the stated capital of the Corporation held by
Multipede shall be voted according to the instructions of Xxxx Xxxxxx.
8. Mediation and Arbitration
8.1. The parties hereto shall attempt to resolve any and all disputes
hereunder by mediation. The neutral third party mediator, as well as
the rules governing the mediation shall be agreed upon by the parties
hereto.
8.2. If the dispute cannot be resolved as per the provisions of Section 8.1
within thirty (30) days of the date of nomination of the mediator, or
at any rate within forty five (45) days of the date of the notice of
mediation sent by a party hereto, then the dispute shall be settled by
final and binding arbitration, by a single arbitrator, and the parties
hereby confirm that this provision constitutes an arbitration
agreement under article 2638 of the Civil Code of Quebec. Save as
expressly provided herein, such arbitration shall be governed by the
provisions of the Code of Civil Procedure of Quebec.
The arbitrator shall be the person appointed by the parties, by mutual
agreement, or if the parties shall fail to agree on the choice of the
arbitrator, a judge of the Superior Court, District of Montreal, shall
appoint such arbitrator upon the motion
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of one of the parties, and the decision of such judge shall be final
and without appeal.
The parties shall use their best efforts to have any such dispute
settled as expeditiously as possible. The cost of the arbitration
shall be shared by the disputing parties in the manner determined by
the arbitrator. During any arbitration, the parties shall continue to
perform their respective covenants and agreements in accordance with
the provisions hereof.
9. Notice
9.1. Any notice or other document required or permitted to be given
hereunder to any of the parties shall be in writing and telecopied, or
delivered personally to the parties at their respective addresses set
forth hereunder, namely:
If to Biocapital I and/or Biocapital II:
Gestion et Investissement en Biotechnologie Biocapital Inc.
0000 Xxxxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxxx, Xxxxxx
X0X 0X0
Attention: The President
Telecopier Number: 687-9283
If to Multipede:
Multipede Holdings Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxx
X0X 0X0
Attention: The President
Telecopier Number: 630-7756
If to the Fonds
Fonds de Solidarite des Travailleurs du Quebec (F.T.Q.)
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Legal Services
Telecopier Number: 383-2500
with a copy to the 0000 Xxxxx Xxxxxx
First Vice-President, Investments Xxxxxxxx, Xxxxxx
X0X 0X0
Telecopier Number: 383-2505
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If to Devma:
600 de la Gauchetiere Street West
Suite 1700
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: The Secretary
Telecopier Number: 395-8055
with a copy to Mme Xxxxx Xxxxxx 600 de la Gauchetiere Street West
Suite 1700
Xxxxxxxx, Xxxxxx
X0X 0X0
Telecopier Number: 395-8055
If to Paquin and/or Xxxxxx:
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
X.X.X.
Telecopier number: (000) 000-0000
with a copy to Xxxxxxxxx Xxxxxxx: 000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Me Xxx Xxxxxxxxxx
Telecopier Number: 288-7389
or at such other address as the party to whom such notice is to be given
may have designated by notice so given to the other parties.
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.
10. Sectional Headings
10.1. Sectional headings in this Agreement are intended for purposes of
reference solely and do not form part hereof.
11. Final Agreement
11.1. This Agreement expresses the final agreement between the parties
hereto with respect to all matters herein and replaces and supersedes
in all respects the unanimous Shareholders' Agreement entered into on
July 27, 1994. For greater certainty, all parties hereto hereby
renounce to all of their rights pursuant to
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the unanimous Shareholders' Agreement of July 27, 1994 and declare
same to be null, void and of no further effect.
12. Gender
12.1. In this Agreement, words importing the singular number only shall
include the plural and vice versa, words importing gender shall
include the masculine, feminine and neuter genders and words
importing persons shall include firms and corporations.
13. Governing Law
13.1. This Agreement shall be governed by and construed in accordance with
the laws of the Province of Quebec.
14. Preamble
14.1. The preamble to this Agreement shall form part hereof as though
recited herein at length.
15. Successors
15.1. This Agreement shall enure to the benefit of and be binding upon the
respective parties and intervenants hereto and their respective
heirs, executors, administrators, successors and/or permitted
assigns.
16. No Partnership or Agency
16.1. The relationship of the parties to each other shall be that of
shareholders in the Corporation and the parties do not intend to be
nor shall they be deemed to be or be treated as a general
partnership, limited partnership, joint venture or association, nor
shall any of them for any purpose be or be deemed or treated in any
way whatsoever to be, liable or responsible hereunder as partners.
For greater certainty, no party hereto is or is intended to be, or
shall be deemed to be or treated as the partner, agent or legal
representative of any other party hereto, whether for the purpose of
this Agreement or otherwise, and no party shall have any authority or
power to act for or to undertake any obligation or responsibility or
incur any liability on behalf of any other party or otherwise, except
as may be specifically provided in this Agreement.
17. Severability
17.1. Nothing contained in this Agreement shall be construed as requiring
the commission of any act contrary to law. Whenever there is any
conflict between any provisions of this Agreement and any present or
future statute, law, ordinance or regulation, the latter shall
prevail, but, in such event the provisions of this Agreement thus
affected shall be curtailed and limited only to the extent necessary
to bring it within the requirements of the law. In the event that any
part, article, paragraph or section
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of this Agreement shall be held to be indefinite, invalid or
otherwise unenforceable, the entire Agreement shall not fail on
account thereof, and the balance of this Agreement shall continue in
full force and effect. If any tribunal or court or appropriate
jurisdiction deems any provision hereof unreasonable, said tribunal
or court may declare a reasonable modification hereof, and this
Agreement shall be valid and enforceable, and the parties hereto
agree to be bound and perform the same, as thus modified.
18. Language of Agreement
18.1. The parties acknowledge that they have agreed that the present
Agreement, as well as all documents, notices and legal proceedings
entered into, given or instituted pursuant hereto or relating
directly or indirectly hereto may be drawn up in English.
19. Coming into Force
19.1. This Agreement shall come into force on the date of the termination
of the unanimous Shareholders' Agreement of July 27, 1994, provided
that closing of the initial public offering of the Corporation occurs
on or before July 31, 1996.
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20. Term of this Agreement
This Agreement shall terminate on the earlier of (i) June 14, 2001; or (ii)
the date on which the Shareholders collectively hold, directly or
indirectly 10% or less of the total number of issued and outstanding
Shares.
SOCIETE EN COMMANDITE FONDS D'INVESTISSEMENT
EN BIOTECHNOLOGIE BIOCAPITAL, herein acting
and represented by its general partner,
Gestion et investissement en biotechnologie
Biocapital Inc.
Per: /s/
----------------------------------------
SOCIETE EN COMMANDITE FONDS D'INVESTISSEMENT
EN BIOTECHNOLOGIE BIOCAPITAL II, herein
acting and represented by its general
partner, Gestion Biocapital II Inc.
Per: /s/
----------------------------------------
Multipede Holdings Inc.
Per: /s/
----------------------------------------
00
XXXXX XX XXXXXXXXXX XXX XXXXXXXXXXXX XX
XXXXXX (F.T.Q.)
Per: /s/
----------------------------------------
INDUSTRIES DEVMA INC.
Per: /s/
----------------------------------------
Per: /s/
----------------------------------------
/s/ Xxxxx Xxxxxx
--------------------------------------------
Xxxxx Xxxxxx
/s/ Xxxx Xxxxxx
--------------------------------------------
Xxxx Xxxxxx
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