EXHIBIT 4.7
SHARE PURCHASE AGREEMENT
BETWEEN
DRAXIS HEALTH INC.
AND
SGF SANTE INC.
MADE AS OF
APRIL 22, 2004
TABLE OF CONTENTS
SHARE PURCHASE AGREEMENT
ARTICLE 1 - INTERPRETATION.....................................................1
1.01 Definitions........................................................1
1.02 Headings...........................................................2
1.03 Extended Meanings..................................................2
1.04 Currency...........................................................2
ARTICLE 2 - PURCHASE AND SALE..................................................2
2.01 Purchase and Sale and Purchase Price...............................2
2.02 Closing............................................................2
2.03 Purchase Price Adjustment..........................................3
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES.....................................4
3.01 Vendor's Representations and Warranties............................4
3.02 Survival of Vendor's Representations, Warranties and Covenants.....5
3.03 Purchaser's Representations and Warranties.........................5
3.04 Survival of Purchaser's Representations, Warranties and Covenants..5
ARTICLE 4 - COVENANTS..........................................................6
4.01 Taxes..............................................................6
4.02 Covenants of the Vendor............................................6
4.03 Covenants of the Purchaser.........................................6
ARTICLE 5 - ARBITRATION........................................................7
5.01 Choice of Arbitration..............................................7
5.02 Notice to Arbitrate................................................7
5.03 Choice of an Arbitrator............................................7
5.04 Hearing and Award..................................................7
5.05 Procedure and Evidence.............................................7
5.06 Replacement of the Arbitrator......................................8
5.07 Suppletive Provisions..............................................8
ARTICLE 6 - GENERAL............................................................8
6.01 Further Assurances.................................................8
6.02 Time of the Essence................................................8
6.03 Commissions........................................................8
6.04 Legal Fees.........................................................8
6.05 Public Announcements...............................................9
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6.06 Benefit of the Agreement...........................................9
6.07 Entire Agreement...................................................9
6.08 Amendments and Waiver..............................................9
6.09 Assignment.........................................................9
6.10 Notices............................................................9
6.11 Governing Law.....................................................10
6.12 Attornment........................................................11
6.13 Language..........................................................11
SHARE PURCHASE AGREEMENT
THIS AGREEMENT made as of April 22, 2004;
B E T W E E N:
Draxis Health Inc., a corporation incorporated under the laws of
Canada
(hereinafter referred to as the "Purchaser")
- and -
SGF Sante Inc., a corporation incorporated under the laws of
Quebec
(hereinafter referred to as the "Vendor")
WHEREAS the Vendor is the beneficial and registered owner of the
Shares, being 7,670,827 issued and outstanding common shares of the Corporation;
AND WHEREAS the Vendor desires to sell and the Purchaser desires to
purchase the Shares upon and subject to the terms and conditions hereinafter set
forth;
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
1.01 DEFINITIONS
In this Agreement, unless something in the subject matter or context
is inconsistent therewith:
(a) "Agreement" means this agreement and all amendments made hereto by
written agreement between the Vendor and the Purchaser;
(b) "Business Day" means a day other than a Saturday, Sunday or statutory
holiday in Ontario or
Quebec;
(c) "Closing Date" means April 22, 2004 or such other date as may be
agreed to in writing between the Vendor and the Purchaser;
(d) "Corporation" means Draxis Pharma Inc.;
(e) "Purchase Price" has the meaning set out in Section 2.01(1);
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(f) "Shares" means 7,670,827 common shares of the Corporation; and
(g) "Time of Closing" means 2:00 P.M. on the Closing Date.
1.02 HEADINGS
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof and
include any agreement supplemental hereto. Unless something in the subject
matter or context is inconsistent therewith, references herein to Articles and
Sections are to Articles and Sections of this Agreement.
1.03 EXTENDED MEANINGS
In this Agreement words importing the singular number only shall
include the plural and VICE VERSA, words importing the masculine gender shall
include the feminine and neuter genders and VICE VERSA and words importing
persons shall include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations.
1.04 CURRENCY
All references to currency herein are to lawful money of Canada.
ARTICLE 2 - PURCHASE AND SALE
2.01 PURCHASE AND SALE AND PURCHASE PRICE
(1) The Vendor shall sell the Shares to the Purchaser and the Purchaser
shall purchase the Shares from the Vendor for a total purchase price of
$13,000,000 (hereinafter referred to as the "Purchase Price"), subject to the
adjustments provided for in paragraph 2.03 and upon and subject to the other
terms and conditions hereof.
(2) The Purchase Price shall be paid and satisfied by certified cheque or
wire transfer payable in Montreal,
Quebec to or to the order of the Vendor and
delivered by the Purchaser, or pursuant to its direction, to the Vendor at the
Time of Closing against delivery to the Purchaser of a share certificate or
certificates evidencing the Shares duly endorsed for transfer to the Purchaser.
2.02 CLOSING
The sale and purchase of the Shares shall be completed at the Time of
Closing at the offices of XxXxxxxx Xxxxxxxx LLP, 0000 Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxx, X0X 0X0.
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2.03 PURCHASE PRICE ADJUSTMENT
(1) The Purchase Price shall be subject to adjustments as provided in
paragraphs 2.03(4) and 2.03(5) if a Liquidity Event of DHI or a
Liquidity Event of DPI (as defined in paragraphs 2.03(2) and 2.03(3))
occurs within a period of 12 months from the Closing Date.
(2) For the purposes of this Agreement, a "Liquidity Event of DHI" shall
mean any transaction or series of transactions pursuant to which a
change of control of the Purchaser occurs (as the term "control" is
defined in the CANADA BUSINESS CORPORATIONS ACT), whether consensual
or otherwise. Such Liquidity Event of DHI shall result in a Purchase
Price adjustment if, at the date where the change of control occurs
(the "Liquidity Date"), the net value of the assets of the
Corporation's business, based on the values attributed to those assets
as of the Liquidity Date (the "Net Value"), exceeds the "Base Value"
which, for the purposes herein, shall be the greater of (i)
$39,815,000, (ii) the highest Net Value determined pursuant to any
previous Liquidity Event of DHI, or (iii) the highest net value of the
assets of the Corporation's business based on the transaction price of
any Liquidity Event of DPI. For greater certainty, the Net Value shall
be the calculated market value of the assets of the Corporation's
business, less its liabilities, based on the Financial Statements (as
defined below). Notwithstanding the foregoing, any transaction made
for internal corporate or tax reorganization purposes shall not be
deemed a Liquidity Event of DHI.
(3) For the purposes of this Agreement, a "Liquidity Event of DPI" shall
mean any liquidation, dissolution or winding up of the Corporation and
any transaction or series of transactions (such as a sale,
amalgamation, consolidation or merger into another entity), which
would result in a change of control of the Corporation (as the term
"control" is defined in the CANADA BUSINESS CORPORATIONS ACT) or a
sale of all or substantially all of its assets. Notwithstanding the
foregoing, any transaction made for internal corporate or tax
reorganization purposes shall not be deemed a Liquidity Event of DPI.
(4) The Purchaser shall provide the Vendor, in a timely fashion but in any
event no later than 50 days from the Liquidity Event of DHI, with a
copy of (i) the audited consolidated financial statements of the
acquiror as of the Liquidity Date (the "Financial Statements")
prepared in accordance with statutory requirements, (ii) the
allocation of the purchase price paid by the acquiror (pursuant to the
Liquidity Event of DHI) to the net value of the assets of the
Corporation's business as well as the documentation, as provided to
the auditors of the acquiror, which supports such allocation, and
(iii) a letter from the auditors of the acquiror that complies with
applicable professional standards, specifically addressed to the
Vendor, confirming the allocation of the purchase price to the assets
of the Corporation's business and confirming the Net Value allocated
to such assets, based on the values attributed to those assets in the
Financial Statements. Within 15 Business Days following the delivery
of such documents to the Vendor, the Vendor shall
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confirm in writing to the Purchaser whether it accepts or not the
determination of the Net Value by the auditors of the acquiror,
failing which the Vendor shall be deemed to have accepted such
determination. The Purchaser shall pay the Vendor, within 5 Business
Days following the acceptance or deemed acceptance by the Vendor of
the determination of the Net Value, an amount equal to 32.65% of the
amount by which the Net Value exceeds the Base Value. Should the
Vendor disagree with the determination of the Net Value, the final
determination of the Net Value shall be submitted to arbitration in
accordance with Article 5.
(5) The Purchaser shall pay the Vendor, within 15 Business Days after the
occurrence of a Liquidity Event of DPI, an amount equal to that which
would have been received by the Vendor in connection with the
Liquidity Event of DPI, had it sold all the Shares in connection with
the Liquidity Event of DPI instead of pursuant to this Agreement, and
which exceeds the sum of (i) the Purchase Price and (ii) any other
amount received by the Vendor from the Purchaser in connection with
any Liquidity Event of DHI or other Liquidity Event of DPI, assuming
in the case of a sale of all or substantially all of the Corporation's
assets that the Corporation would be liquidated immediately after the
occurrence of the Liquidity Event of DPI.
ARTICLE 3- REPRESENTATIONS AND WARRANTIES
3.01 VENDOR'S REPRESENTATIONS AND WARRANTIES
The Vendor represents and warrants to the Purchaser that:
(a) the Vendor is a corporation duly incorporated, organized and
subsisting under the laws of the Province of
Quebec;
(b) the Vendor is the beneficial and registered owner of the Shares free
and clear of all liens, charges, encumbrances and any other rights of
others;
(c) the Vendor has good and sufficient power, authority and right to enter
into and deliver this Agreement and to transfer the legal and
beneficial title and ownership of the Shares to the Purchaser free and
clear of all liens, charges, hypothecs, encumbrances and any other
rights of others;
(d) there is no contract, option or any other right of another binding
upon or which at any time in the future may become binding upon the
Vendor to sell, transfer, assign, pledge, charge, hypothecate,
mortgage or in any other way dispose of or encumber any of the Shares
other than pursuant to the provisions of this Agreement;
(e) neither the entering into nor the delivery of this Agreement nor the
completion of the transactions contemplated hereby by the Vendor will
result in the violation of:
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(i) any of the provisions of the constating documents or by-laws of
the Vendor;
(ii) any agreement or other instrument to which the Vendor is a
party or by which the Vendor is bound, or
(iii) any applicable law, rule or regulation;
(f) the Vendor is not a non-resident person within the meaning of section
116 of the INCOME TAX ACT (Canada).
3.02 SURVIVAL OF VENDOR'S REPRESENTATIONS, WARRANTIES AND COVENANTS
(1) The representations and warranties of the Vendor set forth in Section
3.01 shall survive the completion of the sale and purchase of the Shares herein
provided for and, notwithstanding such completion, shall continue in full force
and effect for the benefit of the Purchaser for a period of two years from the
Closing Date.
(2) The covenants of the Vendor set forth in this Agreement shall survive
the completion of the sale and purchase of the Shares herein provided for and,
notwithstanding such completion, shall continue in full force and effect for the
benefit of the Purchaser in accordance with the terms thereof.
3.03 PURCHASER'S REPRESENTATIONS AND WARRANTIES
The Purchaser represents and warrants to the Vendor that:
(a) the Purchaser is a corporation duly incorporated, organized and
subsisting under the laws of Canada;
(b) the Purchaser has good and sufficient power, authority and right to
enter into and deliver this Agreement and to complete the transactions
to be completed by the Purchaser contemplated hereby; and
(c) the Purchaser is a Canadian within the meaning of the INVESTMENT
CANADA ACT (Canada).
3.04 SURVIVAL OF PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
(1) The representations and warranties of the Purchaser set forth in
Section 3.03 shall survive the completion of the sale and purchase of the Shares
herein provided for and, notwithstanding such completion, shall continue in full
force and effect for the benefit of the Vendor for a period of two years from
the Closing Date.
(2) The covenants of the Purchaser set forth in this Agreement shall
survive the completion of the sale and purchase of the Shares herein provided
for and, notwithstanding such
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completion, shall continue in full force and effect for the benefit of the
Vendor in accordance with the terms thereof.
ARTICLE 4 - COVENANTS
4.01 TAXES
The Purchaser does not assume and shall not be liable for any taxes
under the INCOME TAX ACT (Canada) or any other taxes whatsoever which may be or
become payable by the Vendor including, without limiting the generality of the
foregoing, any taxes resulting from or arising as a consequence of the sale by
the Vendor to the Purchaser of the Shares herein contemplated, and the Vendor
shall indemnify and save harmless the Purchaser from and against all such taxes.
4.02 COVENANTS OF THE VENDOR
The Vendor shall indemnify and save harmless the Purchaser from and
against all losses, damages or expenses (except for any indirect, incidental,
special and consequential damages or losses, including losses of profit)
suffered by the Purchaser resulting from any breach of any covenant of the
Vendor contained in this Agreement or from any inaccuracy or misrepresentation
in any representation or warranty set forth in Section 3.01.
4.03 COVENANTS OF THE PURCHASER
(1) The Purchaser shall indemnify and save harmless the Vendor from and
against all losses, damages or expenses (except for any indirect, incidental,
special and consequential damages or losses, including losses of profit)
suffered by the Vendor resulting from any breach of any covenant of the
Purchaser contained in this Agreement or from any inaccuracy or
misrepresentation in any representation or warranty set forth in Section 3.03.
(2) The Purchaser shall, for a period of 24 months following the Closing
Date, maintain in the Province of
Quebec:
(a) its current activities at its Kirkland facilities, subject to such
changes in its activities as are necessary or incidental to the
operation of its business in the province of
Quebec in a manner
consistent with past practice; and
(b) the Corporation's headquarters and principal place of business.
(3) The Purchaser shall provide the Vendor with a copy of the audited
consolidated financial statements of the Corporation, for the year ended
December 31, 2003, duly approved by the board of directors of the Corporation,
no later than on May 31, 2004. The Purchaser agrees to pay the Vendor a penalty
of $1,000 for each day of delay beyond May 31, 2004, until it complies with the
requirement of this paragraph 4.03(3).
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ARTICLE 5 - ARBITRATION
5.01 CHOICE OF ARBITRATION
Any claim arising in respect of this Agreement which is challenged,
any controversy or dispute regarding the execution of this Agreement, including
its annulment, as well as any dispute with regard to the interpretation or
application of this Agreement must be submitted to arbitration to the exclusion
of the courts, the whole in accordance with the procedure hereinafter
established.
5.02 NOTICE TO ARBITRATE
Any party to this Agreement wishing to submit a claim, conflict,
dispute or disagreement (collectively a "Dispute") to arbitration must forward
to the other party to the Dispute a written notice (hereinafter referred to as
"Notice to Arbitrate"), containing a reasonably detailed description of the
Dispute.
5.03 CHOICE OF AN ARBITRATOR
The Dispute shall be submitted to one arbitrator appointed by the
parties. If the parties are unable to agree upon the appointment of the
arbitrator, then upon application of any party, an arbitrator shall be appointed
by a Justice of the Superior Court of the Province of
Quebec.
5.04 HEARING AND AWARD
The hearing shall be held in Montreal. The parties will use their best
efforts to ensure that the arbitration hearing is conducted no later than 30
days after the arbitrator is selected. The award of the arbitrator must be
rendered in writing and the arbitrator shall use its best efforts to render his
award within 90 days following the hearing. Any such award (including with
respect to the payment of fees and disbursements related to the arbitration)
which is rendered shall be final, binding and without appeal, and shall become
executory as a judgement against the parties upon homologation.
5.05 PROCEDURE AND EVIDENCE
Notice shall be given by the arbitrator, in writing, of the time and
place of any hearings except where such hearings are adjourned by the arbitrator
in the presence of the parties hereto. In the conduct of the hearing and
particularly in the taking of testimony or other evidence in the course thereof,
the arbitrator shall be bound by the rules of law applying to the competence,
relevance and materiality of witnesses and testimony in the courts of the
Province of
Quebec and the rules of procedure set out in the CODE OF CIVIL
PROCEDURE OF
QUEBEC. The arbitrator shall have full power and authority to
permit, before or during any hearing, any amendment to the arbitration
submission requested by the party so submitting as well as any cross-demand by
the other party.
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5.06 REPLACEMENT OF THE ARBITRATOR
If the arbitrator for any reason refuses or is unable to continue his
functions as arbitrator, then a replacement arbitrator will either be appointed
by the parties within five Business Days of being notified of the arbitrator's
inability or refusal to continue or, failing such appointment, by a Justice of
the Superior Court of the Province of
Quebec on the application of any party.
5.07 SUPPLETIVE PROVISIONS
The parties to these presents agree that the provisions presently in
effect of the CODE OF CIVIL PROCEDURE OF QUEBEC shall receive suppletive
application to any arbitration proceeding undertaken or held by virtue of this
Agreement. In the event of a contradiction between the provisions of this
Article 5 and the provisions of the aforementioned sections of the CODE OF CIVIL
PROCEDURE OF QUEBEC, the provisions of this Article 5 shall have precedence.
ARTICLE 6- GENERAL
6.01 FURTHER ASSURANCES
Each of the Vendor and the Purchaser shall from time to time execute
and deliver all such further documents and instruments and do all acts and
things as the other party may, either before or after the Closing Date,
reasonably require to effectively carry out or better evidence or perfect the
full intent and meaning of this Agreement.
6.02 TIME OF THE ESSENCE
Time shall be of the essence of this Agreement.
6.03 COMMISSIONS
The parties hereto shall indemnify and save harmless each other from
and against any claims whatsoever for any commission or other remuneration
payable or alleged to be payable to any person in respect of the sale and
purchase of the Shares, for such person who purports to act or has acted for the
indemnifying party in connection with the sale of the Shares. For the purpose
herein, the parties acknowledge that Xxxxxxxxxx Securities Inc. has acted for
the Purchaser.
6.04 LEGAL FEES
Each of the parties hereto shall pay their respective legal and
accounting costs and expenses incurred in connection with the preparation,
execution and delivery of this Agreement and all documents and instruments
executed pursuant hereto and any other costs and expenses whatsoever and
howsoever incurred. The Purchaser shall pay the costs incurred to translate this
Agreement in French.
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6.05 PUBLIC ANNOUNCEMENTS
No public announcement or press release concerning the sale and
purchase of the Shares shall be made by the Vendor or the Purchaser without the
prior consent and joint approval of the Vendor and the Purchaser.
6.06 BENEFIT OF THE AGREEMENT
This Agreement shall enure to the benefit of and be binding upon the
respective heirs, executors, administrators, successors and permitted assigns of
the parties hereto.
6.07 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and cancels and supersedes any
prior understandings and agreements between the parties hereto with respect
thereto, including the Offer dated March 9, 2004 from the Purchaser to the
Vendor, the Counter-Offer dated March 29, 2004 from the Vendor to the Purchaser
and the Final Offer dated March 31, 2004 presented by the Vendor and accepted by
the Purchaser. There are no representations, warranties, terms, conditions,
undertakings or collateral agreements, express, implied or statutory, between
the parties other than as expressly set forth in this Agreement.
6.08 AMENDMENTS AND WAIVER
No modification of or amendment to this Agreement shall be valid or
binding unless set forth in writing and duly executed by both of the parties
hereto and no waiver of any breach of any term or provision of this Agreement
shall be effective or binding unless made in writing and signed by the party
purporting to give the same and, unless otherwise provided, shall be limited to
the specific breach waived.
6.09 ASSIGNMENT
Neither party shall assign this Agreement without the prior written
consent of the other party, which consent shall not be unreasonably withheld.
6.10 NOTICES
Any demand, notice or other communication to be given in connection
with this Agreement shall be given in writing and shall be given by personal
delivery, by registered mail or by electronic means of communication addressed
to the recipient as follows:
To the Vendor:
SGF Sante Inc.
000, xx xx Xxxxxxxxxxx Xx. Xxxx
Xxxxx 0000
Xxxxxxxx, Quebec
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H3B 4L8
Fax No.: (000) 000-0000
ATTENTION: President
To the Purchaser:
Draxis Health Inc.
0000, Xxxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
Fax No.: (000) 000-0000
ATTENTION: President and Chief Executive Officer
With a copy to:
Draxis Health Inc.
00000, Xxxxx-Xxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Fax No.: (000) 000-0000
ATTENTION: General Counsel and Secretary
or to such other address, individual or electronic communication number as may
be designated by notice given by either party to the other. Any demand, notice
or other communication given by personal delivery shall be conclusively deemed
to have been given on the day of actual delivery thereof and, if given by
registered mail, on the third Business Day following the deposit thereof in the
mail and, if given by electronic communication, on the day of transmittal
thereof if given during the normal business hours of the recipient and on the
Business Day during which such normal business hours next occur if not given
during such hours on any day. If the party giving any demand, notice or other
communication knows or ought reasonably to know of any difficulties with the
postal system which might affect the delivery of mail, any such demand, notice
or other communication shall not be mailed but shall be given by personal
delivery or by electronic communication.
6.11 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Quebec and the laws of Canada applicable therein.
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6.12 ATTORNMENT
For the purpose of all legal proceedings this Agreement shall be
deemed to have been performed in the Province of Quebec and the courts of the
Province of Quebec shall have jurisdiction to entertain any action arising under
this Agreement. The Vendor and the Purchaser each hereby attorns to the
jurisdiction of the courts of the Province of Quebec.
6.13 LANGUAGE
The parties have requested that this Agreement and all related
documentation be written in English. LES PARTIES ONT EXIGE QUE LA PRESENTE
CONVENTION AINSI QUE LA DOCUMENTATION QUI Y EST RELIEE SOIT REDIGEE EN ANGLAIS.
The parties acknowledge that this Agreement shall be translated in French and
signed within 30 days of the date of its execution, at which time the executed
French version thereof shall prevail in the event of any inconsistency or
conflict as between the terms of the two versions of this Agreement.
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IN WITNESS WHEREOF the parties have executed this Agreement.
DRAXIS HEALTH INC.
Per: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Per: /s/ Xxxx Xxxxxxx
-----------------------------
SGF SANTE INC.
Per: /s/ Xxxxx Xxx
-----------------------------
Per: /s/ Xxxx Xxxxxx
-----------------------------
