HAEMACURE CORPORATION
SECOND SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (the "Agreement") is made and entered into as
of the 31st day of July, 1998, by and among SOCIETE EN COMMANDITE FONDS
D'INVESTISSEMENT EN BIOTECHOLOGIE BIOCAPITAL, a limited partnership formed under
the laws of the Province of Quebec, Canada ("Biocapital I"), SOCIETE EN
COMMANDITE FONDS D'INVESTISSEMENT EN BIOTECHOLOGIE BIOCAPITAL II, a limited
partnership formed under the laws of the Province of Quebec, Canada ("Biocapital
II"), MULTIPEDE HOLDINGS INC., a corporation incorporated under the laws of
Canada ("Multipede"), FONDS DE SOLIDARITE DES TRAVAILLEURS DU QUEBEC (F.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 I, Biocapital II, 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 "Shareholders Agreement");
WHEREAS, pursuant to the terms of a Subscription Agreement between ZLB and
Company (the "Subscription Agreement"), ZLB will subscribe for and purchase a
substantial number of Shares from Company; and
WHEREAS, in light of the significant proposed investment in Company by ZLB
pursuant to the Subscription Agreement and for purposes of manufacturing
Company's Hemaseel HMN product and the parties desire to provide for stability
in the members of the Board of Directors of Company (the "Board"), the parties
hereto believe it is in their mutual best interests to make modifications to the
terms of Shareholders Agreement and to enter into an agreement on certain other
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, the parties
to this Agreement hereby mutually covenant and agree as follows:
1) Shareholders Agreement. The Significant Shareholders hereby agree that
Section 1 of the Shareholders Agreement shall be deleted in its entirety. No
other provision of this Agreement shall be deemed to supersede or change any of
the obligations, agreements, provisions or covenants of the parties to the
Shareholders Agreement.
2) Representation on the Board:
a) Number. The Shareholders shall vote their respective Shares to
maintain the number of directors of Company at nine (9).
b) Voting of Shares. Subject to all of the provisions of Section 2
listed below, the Shareholders shall vote their respective Shares so that
each Shareholder or, if such Shareholder is Fonds, Biocapital I or
Biocapital II, then Biocapital Group (as defined in Section 2.(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 Company
c) Biocapital Group. For the purposes of Section 2.(b) 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 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 Company.
d) ZLB. Notwithstanding Section 2.(b) and for so long as ZLB is the
manufacturer of Hemaseel HMN, the Shareholders shall vote their Respective
Shares so that ZLB shall be entitled to appoint one (1) representative on
the Board.
e) Removal. Notwithstanding Section 2.(b), until the earlier of an
initial public offering of the common shares of Company in the United
States or eighteen (18) months from the effective date of this Agreement
pursuant to Section 5 (the "Restricted Period"), each of the Shareholders
for itself agrees that it (i) shall not vote its share to remove any
director from office who was elected to such office at the 1998 Annual
General Meeting of Shareholders of Company (the "New Directors"), (ii)
shall vote in favor of this slate at the 1999 Annual General Meeting of
Shareholders of Company, and (iii) shall not vote its share to remove the
Chief Executive Officer of Company as of the date hereof, but shall vote
its shares for the appointment of a nominee of a Shareholder whose
representative has ceased to hold office.
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f) 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.
g) Applicable Law. The validity, construction, enforcement and effect
of this Agreement shall be governed by the laws of the Province of Quebec
and the laws of Canada applicable therein
h) Effective Date. This Agreement shall become effective upon the
execution of the Subscription Agreement by ZLB and Company and the issue of
the share provided therein;
i) 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.
j) Complete Agreement. Except with respect to the Shareholders
Agreement, to which ZLB hereby subscribes and which shall remain in full
force and effect except as provided in Section 1 of this Agreement, and
except with respect to the Subscription Agreement, this Agreement
supersedes all prior agreements or understandings between the parties or
any of them respecting the Shares.
k) 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.
l) 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.
m) 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.
n) Headings. The headings for the Sections of this Agreement are
inserted for convenience only and shall not constitute a part thereof.
o) 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SOCIETE EN COMMANDITE FONDS D'INVESTISSEMENT
EN BIOTECHOLOGIE BIOCAPITAL
By:
-----------------------------------------
SOCIETE EN COMMANDITE FONDS D'INVESTISSEMENT
EN BIOTECHOLOGIE BIOCAPITAL II
By: /s/
-----------------------------------------
MULTIPEDE HOLDINGS INC.
By: /s/
-----------------------------------------
FONDS DE SOLIDARITE DES TRAVAILLEURS DU
QUEBEC (F.T.Q.)
By: /s/
-----------------------------------------
INDUSTRIES DEVMA INC.
By: /s/
-----------------------------------------
ZLB CENTRAL LABORATORY BLOOD TRANSFUSION
SERVICE SRC
By: /s/
-----------------------------------------
Chairman of the Board of Trustees
By: /s/
-----------------------------------------
Executive Vice President
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HAEMACURE CORPORATION
AMENDMENT TO THE SECOND SHAREHOLDERS AGREEMENT
THIS AMENDMENT (the "Amendment") TO THE SECOND SHAREHOLDERS AGREEMENT is
made and entered into as of the 26th day of October, 1998, by and among
INVESTISSEMENT BIOCAPITAL SOCIETE EN COMMANDITE, 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.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 Multipede, Fonds, Devma, Societe en commandite Fonds
d'investissement en biotechnologie Biocapital ("Biocapital I"), Societe en
commandite Fonds d'investissement en biotechnologie Biocapital II ("Biocapital
II") and ZLB entered into a Second Shareholders Agreement dated July 31, 1998;
WHEREAS The Toronto Stock Exchange has required a minor modification to the
Second Shareholders Agreement in order to comply with its policies;
WHEREAS Biocapital I and Biocapital II have combined to form Biocapital;
AMENDMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties to this Amendment hereby mutually covenant and agree as follows:
1. Clause 2(e)(ii) of the Second Shareholders Agreement shall be amended
to read as follows:
"(ii) shall (other than the ZLB) vote in favour of this slate at
the 1999 Annual General Meeting of Shareholders of the Company, and,
as regards the ZLB only, shall not vote against this slate at the 1999
Annual General Meeting of Shareholders of the Company".
2. In all other respects, the Second Shareholders Agreement remains in
full force and effect, unamended.
3. Subject to the foregoing, the Second Shareholders Agreement is hereby
ratified and confirmed by Biocapital, as if it had signed the said Second
Shareholders Agreement.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
INVESTISSEMENT BIOCAPITAL SOCIETE EN
COMMANDITE, by its general partner Gestion
Biocapital Inc.
By: /s/
-----------------------------------------
MULTIPEDE HOLDINGS INC.
By: /s/
-----------------------------------------
FONDS DE SOLIDARITE DES TRAVAILLEURS DU
QUEBEC (F.T.Q.)
By: /s/
-----------------------------------------
INDUSTRIES DEVMA INC.
By: /s/
-----------------------------------------
ZLB CENTRAL LABORATORY BLOOD TRANSFUSION
SERVICE SRC
By: /s/
-----------------------------------------
Chairman of the Board of Trustees
By: /s/
-----------------------------------------
Executive Vice President
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