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EXHIBIT 5
SYNSORB BIOTECH INC.
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the "Agreement") is made as of January
28, 1998 (the "Effective Date"), by and between SYNSORB BIOTECH INC., an
Alberta corporation (the "Company") and BIOTECH TARGET S.A., a Panama
corporation (the "Purchaser").
SECTION I PURCHASE AND SALE OF SHARES
Subject to the terms and conditions of this Agreement, the Company
agrees to issue and sell to the Purchaser and the Purchaser agrees to purchase
from the Company one million (1,000,000) common shares (the "Shares"), for a
purchase price of EIGHT MILLION SIX HUNDRED THOUSAND ($8,600,000) DOLLARS.
SECTION II CLOSING DATE; DELIVERY
2.1 CLOSING DATE. The closing of the purchase and sale
of the Shares hereunder (the "Closing") shall be held at the offices of Xxxxx &
XxXxxxxx, 000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx at 10:00 a.m., on
February 12, 1998 or at such other time and place upon which the Company and
Purchaser shall agree. The date of the Closing is hereinafter referred to as
the "Closing Date".
2.2 DELIVERY. At the Closing, the Company will deliver
to Purchaser one certificate representing the Shares to be purchased by the
Purchaser, registered in the Purchaser's name. Such delivery shall be made
against payment of the purchase price therefor by wire transfer to the
Company's bank account.
SECTION III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser as of the Closing
Date as follows:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
province of Alberta and has full power and authority to own and operate its
properties and assets and to carry on its business as presently conducted and as
proposed to be conducted. The Company is qualified to do business in each
jurisdiction in which the ownership of its property or the conduct of its
business requires such qualification.
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3.2 LISTING AND REPORTING ISSUER STATUS. The common shares of the
Company are listed and posted for trading on The Toronto Stock Exchange (the
"TSE") and the Company is not in breach of any TSE requirements applicable to it
or necessary for it to remain so listed. The Company is and has been a
reporting issuer or the equivalent in the provinces of British Columbia, Alberta
and Ontario, and is not and has not been in default of any of the requirements
of the provincial securities laws, rules, regulations, policies, rulings or
orders applicable to it since January 28, 1997.
3.3 CORPORATE POWER; AUTHORIZATION. The Company has all
requisite corporate power to, and has taken all requisite corporate action to,
execute and deliver this Agreement, to sell and issue the Shares and to carry
out and perform all of its obligations under this Agreement, and this Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms, except: (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
the enforcement of creditors' rights generally; and (ii) as limited by
equitable principles generally. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby by the
Company will (i) conflict with or violate any provision of the Articles of
Incorporation or By-Laws of the Company; (ii) conflict with or violate any law,
rule, regulation, ordinance, order, writ, injunction, judgment or decree
applicable to the Company or its business, which violation would have a
material adverse effect on the Company; or (iii) conflict with or result in any
breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination or cancellation of, or accelerate the performance required by or
maturity of, or result in the creation of any security interest, lien, charge
or encumbrance on any of the Company's assets pursuant to any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, permit,
license, franchise, lease, contract, or other instrument or obligation to which
the Company is a party, which breach, default, termination, cancellation,
acceleration, security interest, lien, charge or encumbrance would have a
material adverse effect on the Company.
3.4 ISSUANCE AND DELIVERY OF SHARES. The Shares, when
issued and paid for in compliance with the provisions of this Agreement, will
be validly issued, fully paid and nonassessable. The issuance and delivery of
the Shares is not subject to preemptive, co-sale, right of first refusal or any
other similar rights of the shareholders of the Company or any liens or
encumbrances, provided however, that the Shares may be subject to restrictions
on transfer under provincial securities laws as set forth herein or as
otherwise required by such laws at the time a transfer is proposed.
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3.5 FULL DISCLOSURE. The Company has furnished to the
Purchaser the following documents filed with or to be filed with the Ontario
Securities Commission (collectively, the "OSC Documents") and the Company
warrants that the information contained in such documents, as of their
respective dates, did not contain any untrue statement of a material fact, and
did not omit to state any material fact necessary to make any statement, in
light of the circumstances under which such statement was made, not misleading:
(a) The Information Circular for the Annual and Special
Meeting of Shareholders held on May 15, 1997;
(b) The Company's Interim Reports for the quarters ended
September 30, 1997, June 30, 1997 and March 31, 1997;
and
(c) The Company's Annual Reports for the years ended
December 31, 1996 and December 31, 1995.
3.6 LITIGATION. Except as set forth in the OSC
Documents, there is no pending or, to the Company's knowledge, threatened
action, suit or other proceeding before any court, governmental body or
authority, stock exchange, or arbitrator to which the Company is a party or to
which its property or assets are subject and to the Company's knowledge, no
basis exists for any (i) material legal proceeding by or against the Company or
(ii) governmental proceeding or investigation of the Company.
3.7 GOVERNMENTAL CONSENTS. No consent, approval, order
or authorization of, or registration, qualification, designation, declaration
or filing with, any federal, provincial or local governmental authority on the
part of the Company is required in connection with the consummation of the
transactions contemplated by this Agreement except for (a) compliance with the
Securities Act (Ontario) R.S.O. 1990 c. S. 5 (the "Securities Act") and the
Securities Act (Alberta) R.S.A. 1981, c. S-6.1, as amended from time to time,
(the "Securities Act (Alberta)"); (b) compliance with the requirements of the
TSE; and (c) compliance with the requirements of the ABCA. Business
Corporations Act (Alberta) R.S.A. 1981 c. B-15, as amended from time to time,
(the "ABCA").
3.8 NO MATERIAL ADVERSE CHANGE. Since September 30, 1997
there have not been any changes in the assets, liabilities, financial condition
or operations of the Company from that reflected in the OSC Documents except
changes in the ordinary course of business which have not been, either
individually or in the aggregate, materially adverse.
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3.9 CAPITALIZATION. As of January 26, 1998 the Company
had 18,978,020 common shares outstanding and 0 preferred shares outstanding.
As of January 26, 1998, there were 1,691,646 options to purchase 1,691,646
common shares and 0 warrants to purchase common shares outstanding.
3.10 NO SUBSIDIARIES. The Company does not have any
subsidiary bodies corporate (as such term is defined in subsection 2(4) of the
ABCA.
3.11 NO VIOLATIONS. The Company is not in violation of
its charter, bylaws or other organizational document, or of any law,
administrative regulation, ordinance, order, judgment or decree of any court or
governmental agency, arbitration panel or authority applicable to the Company,
except for violations which, individually or in the aggregate, would not have a
material adverse effect on the Company. The Company is not in default in any
material respect in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness in
any indenture, mortgage, deed of trust, or any other agreement or instrument to
which the Company is a party or by which the Company is bound or by which the
properties of the Company are bound or affected, except for violations which,
individually or in the aggregate, would not have a material adverse effect on
the Company, and there exists no condition which, with the passage of time or
otherwise, would constitute a material default under any such document or
instrument or result in the imposition of any material penalty or the
acceleration of any material indebtedness.
3.12 GOVERNMENTAL PERMITS, ETC. The Company has all
necessary franchises, licenses, permits, certificates and other authorizations
from any foreign, federal, provincial or local government or governmental
agency, department, or body that are currently necessary for the operation of
the business of the Company as currently conducted and as described in reports
required to be filed by the Company under the Securities Act and the absence of
which would have a material adverse effect on the Company.
3.13 FINANCIAL STATEMENTS. The financial statements of
the Company and the related notes contained in the OSC Documents present
fairly, subject to normal year end adjustments in the case of the quarterly
statements, the financial position of the Company as of the dates indicated,
and the results of its operations and cash flows for the periods therein
specified and the assets and liabilities of the Company have not changed
materially since September 30, 1997 except for changes in the ordinary course
of business. Such financial statements (including the related notes) have been
prepared in accordance with Canadian generally accepted accounting principles
applied on a consistent basis throughout the periods therein specified.
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3.14 OPERATION OF THE BUSINESS. The Company owns and
retains all such assets and contractual rights necessary for it to operate its
business as described in the OSC Documents, except where the failure to own or
retain such assets or contractual rights would not have a material adverse
effect upon the operations of the Company.
3.15 ENVIRONMENTAL MATTERS. The Company is in compliance
with all applicable local, provincial and federal safety and environmental laws
and regulations in all material respects.
3.16 INTELLECTUAL PROPERTY. The Company owns or possesses
sufficient rights to use all material patents, patent rights, industrial
designs (design patents), trademarks, service marks, copyrights, licenses,
inventions, trade secrets, know-how ("Intellectual Property") described or
referred to in the OSC Documents, as owned or used by it or that are necessary
for the conduct of its business as now conducted or as described in the OSC
Documents. Except as described in the OSC Documents, the Company has not
entered into or become party to any material development, license or other
agreement pursuant to which it has secured the right or obligation to use, or
granted others the right or obligation to use any Intellectual Property or any
other intellectual property right. All technical information developed by or
belonging to the Company which has not been patented has been kept confidential
by the Company except for disclosure to third parties subject to
confidentiality restrictions.
3.17 RELIANCE. The Company acknowledges that the Purchaser has
reviewed and relied upon the OSC Documents in making its decision to purchase
the Shares.
SECTION IV REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Company, effective
as of the Closing Date, as follows:
4.1 AUTHORIZATION. The Purchaser represents and warrants
to the Company that: (i) the Purchaser has all requisite legal and corporate or
other power and capacity and has taken all requisite corporate or other action
to execute and deliver this Agreement, to purchase the Shares and to carry out
and perform all of its obligations under this Agreement; and (ii) this
Agreement constitutes the legal, valid and binding obligation of the Purchaser,
enforceable in accordance with its terms, except (a) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or affecting the enforcement of creditors' rights generally and (b) as limited
by equitable principles generally.
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4.2 RESIDENCE. The Purchaser is not a resident of Canada.
4.3 INVESTMENT KNOWLEDGE. The Purchaser has had access
to and has acquired information about the Company sufficient to answer the
Purchaser's question with respect of the business and affairs of the Company,
the Shares and the transactions contemplated hereby.
4.4 INVESTMENT INTENT. The Purchaser is purchasing the
Shares for its own account as principal, for investment purposes only, and not
with a view to, or for, resale or distribution to, or for the benefit of, any
other person. Purchaser understands that the Shares are being issued to it in
reliance on exemptions from the prospectus requirements of the Securities Act
and the Securities Act (Alberta). If required by applicable securities
legislation, policy or order or by any securities commission, stock exchange or
other regulatory authority, the Purchaser will, at the reasonable expense of
the Company, execute, deliver, file and otherwise assist the Company in filing
such reports, undertakings and other documents with respect to the issuance of
the Shares as may be required, and without restricting the foregoing, the
Purchaser will complete or cause to be completed the Undertaking to the TSE
attached hereto as Exhibit A for use in connection with fulfilment of the TSE
requirements for the transaction contemplated by this Agreement, and will
deliver such undertaking to the Company on or prior to the date of Closing.
4.5 NO LEGAL, TAX OR INVESTMENT ADVICE. The Purchaser
understands that nothing in this Agreement or any other materials presented in
connection with the purchase and sale of the Shares constitutes legal, tax or
investment advice and that independent legal counsel has reviewed these
documents and materials on the Purchaser's behalf. The Purchaser has consulted
such legal, tax and investment advisors as it, in its sole discretion, has
deemed necessary or appropriate in connection with its purchase of the Shares.
4.6 EXEMPTION REQUIREMENTS. The Purchaser has been
independently advised as to the applicable hold period and restrictions with
respect to trading imposed in respect of the Shares by securities legislation
in the jurisdiction in which it resides.
4.7 OFFERING MEMORANDUM. The Purchaser has not received,
nor has it requested, any offering memorandum describing the business and
affairs of the Company which has been prepared for delivery to, and review by,
prospective purchasers in order to assist them in making an investment decision
in respect of the Shares, and it has not become aware of any advertisement in
printed media of general and regular paid circulation or on radio or television
with respect to the distribution of the Shares.
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4.8 INFORMATION RELIED UPON. Except as otherwise provided herein,
the Purchaser has relied upon certain publicly available information
relating to the Company and not upon any verbal or written representation as to
fact or otherwise made by or on behalf of the Company and agrees that the
Company and its representatives assume no responsibility or liability of any
nature whatsoever for the accuracy, adequacy or completeness of publicly
available information not prepared by the Company.
4.9 PURPOSE OF INCORPORATION. The Purchaser was not incorporated or
created solely to permit the purchase of the Shares without the need for the
filing of a prospectus, or if it is a corporation incorporated or created for
such purpose, each shareholder of Purchaser is an individual who has contributed
at least $150,000 to Purchaser for the purpose of investment by the Purchaser in
the Shares.
SECTION V COVENANTS OF THE COMPANY
5.1 If requested by the Purchaser in writing, the Company
shall forthwith after the date of Closing use its best efforts to create a
vacancy on the board of its directors and to cause a nominee of the Purchaser
to be appointed to the board of its directors to serve until the next annual
meeting of the shareholders of the Company. If requested by the Purchaser in
writing prior to March 1, 1998, the Company shall use its best efforts to cause
a nominee of the Purchaser to be nominated as a director of the Company for
election at its next annual meeting of shareholders. The Company will put
forth the said nominee of the Purchaser for election to its board of directors
as aforesaid and will use its best efforts to cause to be solicited proxies for
its annual meeting of shareholders in favour of the election of such
individual. In both of the above cases, the suggested nominee of the Purchaser
must be acceptable to the Company, acting reasonably. The obligations of the
Company pursuant to this paragraph 5.1 shall terminate and be of no further
force or effect after the first annual meeting of its shareholders following
the date of this Agreement.
5.2 RIGHT OF FIRST REFUSAL
(a) The Company hereby grants to the Purchaser the right
of first refusal to purchase the Purchaser's Pro Rata Share of
New Securities which the Company may sell or issue between the
Closing Date and one year after the Closing Date. "New
Securities" means any common shares of the Company, whether now
authorized or not, and any rights, options or warrants to
purchase any common shares of the Company which are sold or
issued pursuant to a public offering or private placement other
than those options issued to employees, directors and
consultants. "Pro Rata Share" is the ratio of the number of
common shares owned by the Purchaser in relation to all of the
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issued and outstanding common shares, immediately prior to the
issuance of New Securities, assuming full conversion of any
convertible or exchangeable shares and the exercise of any right,
option or warrant for common shares, other than those options
issued to employees, directors or consultants.
(b) In the event that the Company proposes to issue or sell New
Securities, it shall give the Purchaser written notice
of the proposal describing the proposed New Securities and the
terms (including the range of proposed pricing) upon which the
Company proposes to sell or issue the New Securities and the
proposed buyers, if known (the "New Securities Notice").
(c) The Purchaser shall have twenty four (24) hours after the New
Securities Notice has been received to conditionally agree in
writing to purchase such New Securities upon the terms specified
in the New Securities Notice (the "Conditional Acceptance"). The
Conditional Acceptance shall state the quantity of New Securities
to be purchased, which in any event may not exceed the
Purchaser's Pro Rata Share.
(d) Upon final agreement as to pricing of the New Securities, the
Company shall, as soon as practicable, notify the Purchaser in
writing of same and of the deadline for notification of the
private placement to applicable stock exchanges ("Final Price
Notice"). The Purchaser shall have, upon receipt of the Final
Price Notice, 18 hours to provide the Company with an
unconditional acceptance of the offer to purchase the New
Securities.
SECTION VI CONDITIONS TO CLOSING OF PURCHASER
Purchaser's obligation to purchase the Shares at the Closing is, at
the option of Purchaser, subject to the fulfilment or waiver as of the Closing
Date of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations
and warranties made by the Company in Section 3 hereof shall be true and
correct in all material respects when made, and shall be true and correct in
all material respects on the Closing Date with the same force and effect as if
they had been made on and as of said date.
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6.2 LEGAL OPINION. The Company shall have delivered a legal opinion
from Xxxxxxx Xxxxx Verchere, counsel to the Company, in substantially the form
attached hereto as Exhibit B with respect to the sale of the Shares by the
Company hereunder.
6.3 OFFICER'S CERTIFICATE. The Company shall deliver to
Purchaser a certificate dated as of the Closing Date, signed by the Chief
Executive Officer of the Company, stating that the representations and
warranties set forth in Section 3 are true as of, and all of the closing
conditions set forth in this Section 6 have been satisfied on the Closing Date.
6.4 TSE APPROVAL. The Company shall deliver at Closing
evidence of TSE approval of the transactions contemplated by this Agreement.
The Company shall obtain all necessary approvals of the TSE for the listing on
the TSE of the Shares to be issued pursuant to this Agreement.
6.5 COVENANTS. All covenants, agreements and conditions
contained in this Agreement to be performed by the Company on or prior to the
Closing Date shall have been performed or complied with in all material
respects.
SECTION VII CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to sell and issue the Shares is, at the
option of the Company, subject to the fulfilment or waiver of the following
conditions:
7.1 REPRESENTATIONS AND WARRANTIES. The representations
made by Purchaser in Section 4 hereof shall be true and correct in all material
respects when made, and shall be true and correct in all material respects on
the Closing Date with the same force and effect as if they had been made on and
as of such date.
7.2 COVENANTS. All covenants, agreements and conditions
contained in this Agreement to be performed by Purchaser on or prior to the
Closing Date shall have been performed or complied with in all material
respects.
SECTION VIII INDEMNIFICATION
8.1 MUTUAL INDEMNIFICATIONS FOR BREACHES OF WARRANTY, ETC.
(a) The Company hereby covenants and agrees with the Purchaser, and
the Purchaser hereby covenants and agrees with the Company (the
Party or Parties so covenanting and agreeing to indemnify another
Party being hereinafter in this Section referred to
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as the "Indemnifying Party" and the Party so to be indemnified
being hereinafter called the "Indemnified Party") to indemnify
and save harmless the Indemnified Party, effective as and from
the Closing Date from and against any claims, demands, actions,
causes of action, damage, loss, (including from a reduction in
the price of the Shares), costs, liability or expense
(hereinafter in this Section 8 called "Claims") which may be made
or brought against the Indemnified Party and/or which it may
suffer or incur as a result of, in respect of, or arising out of
any non-fulfilment of any covenant or agreement on the part of
the indemnifying Party under this Agreement or any incorrectness
in or breach of any representation or warranty of the
Indemnifying Party contained herein or in any certificate or
other document furnished by the Indemnifying Party pursuant
hereto. The foregoing obligation of indemnification in respect
of such Claims shall be subject to the requirements that the
Indemnifying Party shall, in respect of any Claims made by any
third party, be afforded an opportunity at its sole expense to
resist, defend and compromise the same, provided that the
Indemnified Party shall provide the Indemnifying Party with
notice of any claims, forthwith upon its receipt of same.
(b) Promptly after receipt by any indemnified person of a
notice of a claim or the commencement of any action in respect
of which indemnity is to be sought against an indemnifying person
pursuant to this Section 8.1, such indemnified person shall
notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought
against an indemnified person and the indemnifying person shall
have been notified thereof, the indemnifying person shall be
entitled to participate therein, and, to the extent that it shall
wish, to assume and undertake the defense thereof, with counsel
reasonably satisfactory to the indemnified person. After notice
from the indemnifying person to such indemnified person of the
indemnifying person's election to assume and undertake the
defense thereof, indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred
by such indemnified person in connection with the defense
thereof; provided, however, that if there exists or shall exist a
conflict of interest that would make it inappropriate in the
reasonable judgment of the indemnified person for the same
counsel to represent both the indemnified person and such
indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person.
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8.2 EXPIRY OF LIABILITY. The representations, warranties, agreements
and covenants set forth herein and the obligations of the parties hereto shall
survive the date of the Agreement and the Closing and shall continue in full
force and effect until the fifth business day following the first anniversary of
the Closing Date except for:
(a) those relating to title to the Shares which shall survive
without limit;
(b) those relating to environmental matters referred to in Section
3.15 which shall survive without limit; and
(c) those relating to Claims, notice of which has been provided by
the Indemnified Party to the Indemnifying Party prior to the
fifth business day following the first anniversary of the
Closing Date.
SECTION IX RESTRICTIONS ON TRANSFERABILITY OF SHARES:
COMPLIANCE WITH SECURITIES ACT
9.1 RESTRICTIONS ON TRANSFERABILITY. The Shares may not be
transferred or sold other than either:
(a) unless the Shares have been held for at least one year from the
date of Closing and the Shares are listed and posted for
trading on the TSE; or
(b) with the approval of the TSE:
(i) pursuant to a prospectus qualified in the applicable
Canadian jurisdictions; or
(ii) upon receipt by the Company of an opinion of counsel
reasonably acceptable to it stating that such sale or
transfer is exempt from the registration and prospectus
requirements of applicable provincial securities
legislation.
9.2 RESTRICTIVE LEGEND. Each certificate representing Shares shall
bear substantially the following legends:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED BY WAY OF
EXEMPTION FROM PROSPECTUS AND REGISTRATION REQUIREMENTS UNDER
APPLICABLE PROVINCIAL SECURITIES
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LEGISLATION. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES
ONLY, AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION HEREOF. THESE SHARES MAY NOT BE SOLD OR TRANSFERRED:
(1) UNLESS THE SHARES HAVE BEEN HELD FOR AT LEAST ONE YEAR FROM
[DATE] AND THE SHARES ARE LISTED AND POSTED ON THE TORONTO
STOCK EXCHANGE; OR
(2) WITH THE APPROVAL OF THE TORONTO STOCK EXCHANGE:
(i) BY WAY OF PROSPECTUS QUALIFIED IN THE APPLICABLE
CANADIAN JURISDICTIONS; OR
(ii) THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER
IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
REQUIREMENTS OF APPLICABLE PROVINCIAL SECURITIES
LEGISLATION
Upon the request of Purchaser, the Company shall remove the
foregoing legend from the certificates evidencing the Shares and issue to
Purchaser new certificates free of any transfer legend if with such request,
and at the request of the Company, the Company shall have received an opinion
of counsel satisfactory to the Company, to the effect that the proposed
transfers by Purchaser of such Shares may be made in compliance with applicable
provincial securities law and TSE requirements.
SECTION X MISCELLANEOUS
10.1 WAIVERS AND AMENDMENTS. The terms of this Agreement
may be waived or amended with the written consent of the Company and Purchaser.
10.2 GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties hereto shall be
governed by, the laws of the Province of Ontario, excluding any conflict of
laws, rule or principle which might refer such construction to the laws of
another jurisdiction. Each of the parties hereto hereby irrevocably attorns to
the exclusive jurisdiction of the courts of the Province of Ontario.
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10.3 CURRENCY. All statements of or reference to dollar
amounts in this Agreement, unless otherwise specifically indicated, shall mean
lawful money of Canada.
10.4 SUCCESSORS AND ASSIGNS. The provisions hereof shall
inure to the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties to this Agreement. This Agreement
shall not be assigned by either party without the prior written consent of the
other party, such consent not to be unreasonably withheld.
10.5 ENTIRE AGREEMENT. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects thereof.
10.6 NOTICES, ETC. All notices and other communications
required or permitted under this Agreement shall be effective upon receipt and
shall be in writing and may be delivered in person, by telecopy, overnight
delivery service or registered or certified mail, addressed to the Company or
Purchaser, as the case may be, at their respective addresses set forth below:
If to the Company:
SYNSORB Biotech Inc.
000, 0000 Xxxxxxxxxx Xxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attn: Xxxxxxx X. Xxxx
Vice President, Finance and
Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 (please telephone first)
with a copy to:
Xxxxxxx Xxxxx Verchere
4500, 000 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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and:
Xxxxx & Gates, PLLC
Two Union Square
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx
00000-0000
Attn: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Purchaser:
Biotech Target S.A.
Swiss Bank Tower
Panama 1
Republic of Panama
With copies to:
Bellevue Asset Management XX
Xxxxxxxxxxx 0
XX-0000 Xxx
XXXXXXXXXXX
Attn: Dr. Xxxxxx Xxxx
Telephone: 000-00-00-000-0000
Facsimile: 011-41-41-724-5958
and:
Xxxxx & XxXxxxxx
BCE Place
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attn: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices and other communications shall be effective upon
the earlier of actual receipt thereof by the person to whom notice is directed
or (i) in the case of notices and communications sent by personal delivery or
telecopy, one business day after such notice or communication arrives at the
applicable address or was successfully sent to the applicable telecopy
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number, (ii) in the case of notices and communications sent by overnight
delivery service, at noon (local time) on the second business day following the
day such notice or communication was sent, and (iii) in the case of notices and
communications sent by registered mail, seven days after such notice or
communication shall have been deposited in the mail. Any notice delivered to a
party hereunder shall be sent simultaneously, by the same means, to such
party's counsel as set forth above.
10.7 SEVERABILITY OF THIS AGREEMENT. If any provision of
this Agreement shall be judicially determined to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
10.8 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
10.9 FURTHER ASSURANCES. Each party to this Agreement
shall do and perform or cause to be done and performed all such further acts
and things and shall execute and deliver all such other agreements,
certificates, instruments and documents as the other party hereto may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
The foregoing Agreement is hereby executed as of the date
first above written.
BIOTECH TARGET S.A.
Per: /s/ DR. XXXXXX XXXX
----------------------------
Dr. Xxxxxx Xxxx
Authorized Signatory
Per: /s/ X.X. XXXX
----------------------------
Authorized Signatory
X.X. Xxxx
SYNSORB BIOTECH INC.
Per: /s/ XXXX XXXXXXXX
--------------------------
Xxxx Xxxxxxxx
Chairman & CEO
Per: /s/ XXXX XXXX
--------------------------
Xxxx Xxxx
Vice President Finance &
Chief Financial Officer
16
EXHIBIT A
THE TORONTO STOCK EXCHANGE
PRIVATE PLACEMENT QUESTIONNAIRE AND UNDERTAKING
TO BE COMPLETED BY EACH PROPOSED PRIVATE PLACEMENT PURCHASER OF LISTED
SECURITIES OR SECURITIES WHICH ARE CONVERTIBLE INTO LISTED SECURITIES
QUESTIONNAIRE
1. DESCRIPTION OF TRANSACTION
(a) NAME OF ISSUER OF THE SECURITIES
Synsorb Biorech Inc.
(b) NUMBER AND CLASS OF SECURITIES TO BE PURCHASED
Common Shares
1,000,000
(c) PURCHASE PRICE
CAD 8,60/Share
2. DETAILS OF PURCHASER
(a) NAME OF PURCHASER
Biotech Target S.A.
(b) ADDRESS
Swiss Bank Tower
Panama 1
Republic of Panama
(c) NAMES AND ADDRESSES OF PERSONS HAVING A GREATER THAN 10%
BENEFICIAL INTEREST IN THE PURCHASER.
None
17
3. RELATIONSHIP TO ISSUER
(a) IS THE PURCHASER (OR ANY PERSON NAMED IN RESPONSE TO 2(c)
ABOVE) AN INSIDER OF THE ISSUER FOR THE PURPOSES OF THE
ONTARIO SECURITIES ACT (BEFORE GIVING EFFECT TO THIS PRIVATE
PLACEMENT)? IF SO, STATE THE CAPACITY IN WHICH THE PURCHASER
(OR PERSON NAMED IN RESPONSE TO 2(c)) QUALIFIES AS AN INSIDER.
NO
(b) IF THE ANSWER TO (a) IS "NO", ARE THE PURCHASER AND THE ISSUER
CONTROLLED BY THE SAME PERSON OR COMPANY? IF SO, GIVE
DETAILS.
NO
4. DEALINGS OF PURCHASER IN SECURITIES OF THE ISSUER
GIVE DETAILS OF ALL TRADING BY THE PURCHASER, AS PRINCIPAL, IN THE
SECURITIES OF THE ISSUER (OTHER THAN DEBT SECURITIES WHICH ARE NOT
CONVERTIBLE INTO EQUITY SECURITIES), DIRECTLY OR INDIRECTLY, WITHIN
THE 60 DAYS PRECEDING THE DATE HEREOF.
Trade Date # of Shares Price per Share
----- ---- ----------- ---------------
Bought 24-Jan-98 900,000 8.25
Bought 24-Jan-98 79,510 8.57
18
UNDERTAKING
TO: The Toronto Stock Exchange
The undersigned has subscribed for and agreed to purchase, as
principal, the securities described in Item 1 of this Private Placement
Questionnaire and Undertaking.
The undersigned undertakes not to sell or otherwise dispose of any of
the said securities so purchased or any securities derived therefrom for the
lesser of:
1. a period of six months from the date of the closing of the
transactions herein or for such period as is prescribed by applicable
securities legislation, whichever is longer, without a prior consent
of The Toronto Stock Exchange and any other regulatory body having
jurisdiction.
DATED AT ZUG BIOTCH TARGET S.A.
------------------ --------------------------------------
(Name of Purchaser - Please Print)
this 5th day of February.
/s/ X.X. XXXX/X. XXXX
--------------------------------------
(Authorized Signature)
Authorized Signatory/Authorized Signatory
--------------------------------------
(Official Capacity - Please Print)
X.X. XXXX / A. HOVE
--------------------------------------
(Please print here name of individual
whose signature appears above, if
different from name of purchaser
printed above)
