Exhibit E
SHAREHOLDERS AGREEMENT
BY AND AMONG
POWER TECHNOLOGY INVESTMENT CORPORATION,
FMRC FAMILY TRUST,
PICCHIO PHARMACEUTICALS INC.
AND
XX. XXXXXXXXX XXXXXXX
(INTERVENANT)
DATED DECEMBER 17, 2001
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS AND INTERPRETATION.......................................3
1.1 Definitions....................................................3
ARTICLE 2 TERM OF AGREEMENT....................................................7
2.1 Term...........................................................7
2.2 Old Shareholders Agreement.....................................8
ARTICLE 3 IMPLEMENTATION OF AGREEMENT..........................................8
3.1 Shareholder Covenants..........................................8
3.2 Conflict.......................................................8
3.3 Covenants by the Corporation...................................8
3.4 One Party......................................................8
ARTICLE 4 ADDITIONAL SUBSCRIPTION..............................................9
4.1 Additional Subscription........................................9
4.2 Promissory Note................................................9
ARTICLE 5 INVESTMENT PROCESS...................................................9
5.1 Sourcing of Opportunities......................................9
5.2 Assessment and Evaluation.....................................10
5.3 Board Submission..............................................10
5.4 Scientific Development Process................................11
ARTICLE 6 SALE AND ISSUANCE OF SHARES.........................................11
6.1 Sale and Issue Restrictions...................................11
6.2 Right of First Opportunity....................................12
6.3 Tag-Along Right...............................................13
6.4 Drag Along Right..............................................14
6.5 Rights of Purchaser...........................................15
6.6 Transfer to an Affiliate......................................15
6.7 Pre-emptive Rights............................................15
6.8 Indebtedness of Shareholder to Corporation....................17
ARTICLE 7 BOARD OF DIRECTORS, MANAGEMENT AND ORGANIZATION.....................18
7.1 Board of Directors............................................18
7.2 Terms of Office...............................................18
7.3 Powers and Duties of Directors................................18
7.4 Casting Vote..................................................18
7.5 Exercise of Authority.........................................19
7.6 Extraordinary Matters.........................................19
7.7 Recourse against Shareholders.................................21
7.8 Meetings of Shareholders......................................21
7.9 Committees....................................................22
7.10 Management....................................................22
7.11 Insurance.....................................................23
7.12 Initial Public Offering.......................................24
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ARTICLE 8 FINANCIAL AND ACCOUNTING PRACTICES..................................25
8.1 Maintain Books................................................25
8.2 Fiscal Year End...............................................25
8.3 Additional Reporting..........................................25
ARTICLE 9 RIGHT OF FIRST BUSINESS OPPORTUNITY AND NON-COMPETITION.............27
9.1 Right of First Business Opportunity...........................27
9.2 Non-Competition - Shareholders................................27
9.3 Non-Competition - Xx. Xxxxxxxxx Xxxxxxx.......................28
9.4 Application to Family Members of Xx. Xxxxxxxxx Xxxxxxx........28
9.5 Limitation....................................................28
9.6 Injunction....................................................29
ARTICLE 10 REPRESENTATIONS, WARRANTIES, COVENANTS AND SHAREHOLDER RELATIONS...29
10.1 General.......................................................29
10.2 The Corporation...............................................29
10.3 Covenants of FMRC.............................................30
10.4 Relations among Shareholders..................................30
ARTICLE 11 CONFIDENTIALITY....................................................30
11.1 Confidentiality...............................................30
11.2 Survival......................................................31
ARTICLE 12 MEDIATION AND ARBITRATION..........................................31
12.1 Dispute Resolution Procedures.................................31
12.2 First Level...................................................31
12.3 Mediation.....................................................31
12.4 Arbitration...................................................32
12.5 No Winding-Up.................................................32
ARTICLE 13 GENERAL MATTERS....................................................33
13.1 No Agency or Partnership......................................33
13.2 Notice........................................................33
13.3 Endorsement of Share Certificates.............................34
13.4 Employee Stock Ownership Plan.................................34
13.5 Quantity and Gender...........................................34
13.6 Table of Contents and Section Headings........................34
13.7 Generally Accepted Accounting Principles......................34
13.8 Statutes......................................................35
13.9 Severability..................................................35
13.10 Currency......................................................35
13.11 Entire Agreement..............................................35
13.12 Governing Law.................................................35
13.13 Expiry of Delay...............................................35
13.14 Recitals......................................................35
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13.15 Including.....................................................36
13.16 Binding Contract..............................................36
13.17 Reclassification of Shares....................................36
13.18 Assignment....................................................36
13.19 Further Assurances............................................36
13.20 Counterparts..................................................37
13.21 Consents and Waivers..........................................37
13.22 Amendment.....................................................37
13.23 Language of Agreement.........................................37
SHAREHOLDERS AGREEMENT made as of the 17th day of December 2001.
BY AND AMONG: POWER TECHNOLOGY INVESTMENT CORPORATION, a
corporation duly constituted under the laws of
Canada, having its head office at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting
and represented by _______________, duly
authorized as he so declares;
(hereinafter referred to as "PTIC")
AND: XXXX XXXXXX ES QUALITE, TRUSTEE OF THE FMRC FAMILY
TRUST, a trust duly constituted in accordance with
the laws of the Province of Alberta, having its
registered office at 0000, 000-0xx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx, X0X 0X0;
(hereinafter referred to as "FMRC")
(PTIC and FMRC are hereinafter referred to as the
"SHAREHOLDERS")
AND: PICCHIO PHARMACEUTICALS INC., duly constituted
under the laws of Canada, having its principal
place of business at 000 Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting and
represented by ____________________, duly
authorized as he so declares;
(hereinafter referred to as the "CORPORATION"; the
Shareholders and the Corporation sometimes
collectively referred to as the "PARTIES", or
individually as a "PARTY")
WHEREAS PTIC, FMRC, Virtual Pharmaceuticals Inc. and Xx. Xxxxxxxxx Xxxxxxx
(Intervenant) executed a shareholders agreement made as of the 13th day of
November 2001, which agreement was only to take effect as of the date that PTIC
and FMRC jointly agreed, in writing, that certain conditions had been fulfilled
to their mutual satisfaction (the "OLD SHAREHOLDERS AGREEMENT");
WHEREAS PTIC and FMRC have agreed to terminate the Old Shareholders Agreement
and replace same with this Agreement;
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WHEREAS the Shareholders intend that the Corporation function as an investment
vehicle to identify and acquire companies in the biotechnology, pharmaceutical
and health science fields worldwide, with an initial emphasis on companies that
are involved in research, development, production and/or marketing of products
in the cancer and diabetes type II fields. The Corporation shall, as its
mission, use a novel approach to become a full-fledged international
pharmaceutical company in five (5) to ten (10) years. It shall have an
experienced and proven management team which shall identify and then in-license
or acquire controlling interests in complimentary biotechnology projects, which
projects will be managed in-house while the labour related to the development of
such projects will be outsourced in order to minimize costs and increase
efficiency. Any phase II and phase III clinical trials of any underlying
technology will be financed through a public offering while (a) future
commercialization of any projects will be sustained through distribution or
alliance agreements with multinational partners and (b) the Corporation will
attempt to maintain direct or indirect control of the underlying technology;
WHEREAS the Shareholders recognize the importance of the expertise of Xx.
Xxxxxxxxx Xxxxxxx in formulating the innovative organizational structure and
business mission of the Corporation and the key role he will be called upon to
play in directing the strategic development of the Corporation;
WHEREAS the Shareholders also recognize that the monitoring and control of the
Corporation's scientific development on the one hand and the identification,
assessment and evaluation and the execution of the Corporation's investments in
the Business on the other hand will require a dynamic and transparent process to
which Xx. Xxxxxxxxx Xxxxxxx will ensure that management is committed under
distinct and customized procedures in each case;
WHEREAS the authorized capital of the Corporation shall consist solely of an
unlimited number of subordinate voting shares, an unlimited number of multiple
voting shares and an unlimited number of non-voting redeemable, non-cumulative
preferred shares;
WHEREAS the issued and outstanding shares in the share capital of the
Corporation are beneficially and of record as follows:
--------------------------------------------------------------------------------
NUMBER OF NUMBER OF
SUBORDINATE VOTING SHARES MULTIPLE VOTING SHARES
NAME OF (AND AGGREGATE (AND AGGREGATE
SHAREHOLDER SUBSCRIPTION PRICE TO BE SUBSCRIPTION PRICE TO BE
PAID THEREFORE) PAID THEREFORE)
--------------------------------------------------------------------------------
PTIC 2,000,000 3,000,000
($2,000,000) ($3,000,000)
--------------------------------------------------------------------------------
FMRC 2,000,000 3,000,000
($2,000,000) ($3,000,000)
--------------------------------------------------------------------------------
WHEREAS the Shareholders wish to enter into this Shareholders Agreement in order
to establish their respective rights and obligations with respect to the issued
and unissued shares in
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the share capital of the Corporation, the management and conduct of the business
of the Corporation and various other matters hereinafter set forth; and
WHEREAS Xx. Xxxxxxxxx Xxxxxxx is intervening hereto to covenant to be bound by
the specific obligations, undertakings and agreements incumbent upon him
personally as herein set forth;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective
covenants and agreements hereinafter contained and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the Parties hereto), the Parties hereto covenant and agree with each
other as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions
The Parties hereto agree that, within the context of this Agreement, the
schedules hereto and all documents ancillary thereto, the words and
expressions set forth hereinafter has the meaning attributed thereto in
this Article 1, unless otherwise indicated or unless the context is
incompatible therewith:
"ACT" means the Canada Business Corporations Act, as amended from time to
time;
"AFFILIATE" means, with respect to any Person, any other Person which,
directly or indirectly, is Controlled by such first Person, and, with
respect to any individual, any member of the immediate family of such
individual or any other Person over whom or over whose activities or
conduct, in any manner and whether by contract, agreement, understanding
or otherwise, that individual exercises control and direction;
"AGREEMENT" means this Shareholders Agreement, as amended, modified,
replaced, restated or supplemented from time to time;
"ARM'S LENGTH" means "arm's length" for the purposes of the Income Tax
Act (Canada), as amended from time to time;
"ARTICLES" means the articles of incorporation of the Corporation, as
amended or restated from time to time;
"ASSOCIATE" has the meaning ascribed thereto in the Act;
"BUDGET" has the meaning ascribed thereto in Section 8.3.5 hereof;
"BUSINESS" means the business of the Corporation, its Subsidiaries or any
Investee Entity now and heretofore or hereafter conducted or in the
process of being conducted by the Corporation, Subsidiary or Investee
Entity up to the date of termination of this Agreement, including,
without limitation, (a) the business of, directly or indirectly,
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developing, producing and marketing pharmaceutical products and (b)
acting as an investment vehicle to identify and acquire companies in the
biotechnology, pharmaceutical and health science fields worldwide, with
an initial emphasis on companies that are involved in research,
development, production and/or marketing of products in the cancer and
diabetes type II field;
"BUSINESS DAY" means any day, other than a Saturday, Sunday or a day
which is a legal holiday in Montreal, Quebec;
"BUSINESS PLAN" has the meaning ascribed thereto in Section 7.6.3 hereof;
"BY-LAWS" means the by-laws of the Corporation, as amended or restated
from time to time;
"CONTROL" means (i) in relation to a Person that is a corporation, the
ownership, directly or indirectly, of voting securities of such Person
carrying more than fifty percent (50%) of the voting rights attaching to
all voting securities of such Person and which are sufficient, if
exercised, to elect a majority of its board of directors; and (ii) in
relation to a Person that is a partnership, limited partnership, business
trust or other similar entity, the ownership, directly or indirectly, of
voting securities of such Person carrying more than fifty percent (50%)
of the voting rights attaching to all voting securities of the Person or
the ownership of other interests entitling the holder to exercise control
and direction over the activities of such Person; "CONTROLS" and
"CONTROLLED" shall have similar meanings;
"CORPORATION" has the meaning ascribed thereto in the recitals hereof;
"DEMAND IPO" has the meaning ascribed thereto in Section 7.12.2 hereof;
"DIRECTORS", "BOARD OF DIRECTORS" and "BOARD" means the individuals who
are, from time to time, duly elected or appointed as directors of the
Corporation;
"DISPUTE" has the meaning ascribed thereto in Section 12.1.2 hereof;
"DRAG ALONG SHAREHOLDER" has the meaning ascribed thereto in Section
6.4.1 hereof;
"EMPLOYMENT AGREEMENT" has the meaning ascribed thereto in Section 6.7.3
hereof;
"ENTITY" has the meaning ascribed thereto in Section 7.10.4 hereof;
"ESOP" has the meaning ascribed thereto in Section 13.4 hereof;
"EXCESS CASH FLOW" means, for the Corporation, with respect to any
quarter, and without duplication, (i) cash, (ii) cash equivalents, (iii)
any undrawn but available line of credit plus (iv) any working capital
excluding cash and cash equivalents if such working capital is a
liability in accordance with GAAP (for greater certainty, if the working
capital excluding cash and cash equivalents is an asset in accordance
with GAAP then no amount shall be added to "Excess Cash Flow" for the
purposes hereof) less: (a) any
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proceeds realized from share issuances of the Corporation or any
Subsidiary that are designated by the investor(s) or by the Board of
Directors for investment, operating or capital expenses, as shall be
conclusively determined by the Board; (b) any other funds designated by
the Board for investment, operating or capital expenses pursuant to any
Budget or the Business Plan; (c) any amount required to pay any
contingent bonus as a result of any redemption/retraction of the
Preferred Shares which are to be redeemed/retracted out of the Excess
Cash Flow in that quarter; and (d) normal and prudent reserves for
contingencies as determined by the Board, the whole calculated in
accordance with GAAP on a consolidated basis;
"EXECUTIVE COMMITTEE" has the meaning ascribed thereto in Section 7.9.1
hereof;
"FMRC" has the meaning ascribed thereto in the recitals hereof;
"FREE AND CLEAR" means free and clear of any pledge, mortgage, lien,
hypothec, encumbrance, debt or right of a third party;
"GAAP" means, at any time, generally accepted accounting principles
approved by the Canadian Institute of Chartered Accountants, or any
successor institute, applied on a consistent basis;
"GLOBAL OFFER" has the meaning ascribed thereto in Section 6.4.2;
"INFORMATION" has the meaning ascribed thereto in Section 11.1 hereof;
"INITIAL PERIOD" has the meaning ascribed thereto in Section 6.1.1
hereof;
"INITIATOR" has the meaning ascribed thereto in Section 6.2 hereof;
"INTEREST" means any investment in the shares of any class in the capital
stock of a Person, any investment in the ownership interests, however
designated, into which an unincorporated Person is divided, any secured
or unsecured creditor position (including, without limitation, any
subordinated or convertible creditor position) vis-a-vis a Person; any
business relationship with a Person outside the ordinary course of
day-to-day operating trade relationships with that Person, whether as
partner, supplier or purchaser of goods or services (including, without
limitation, management or administration services), licensor, licensee or
otherwise, or the provision of funds to a Person in any manner in support
of the research and development or other activities of such Person in
connection with the Business; the whole whether directly or indirectly;
"INTERNAL OFFER" has the meaning ascribed thereto in Section 6.2.2
hereof;
"INVESTEE ENTITY" means any direct or indirect Subsidiary of the
Corporation, any Person in which the Corporation has, directly or
indirectly, invested in the course of the Business and any Person in the
business activities or undertaking of which the Corporation or a
Subsidiary has acquired, in the course of the Business, any other
Interest;
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"MULTIPLE VOTING SHARES" means the multiple (10X) voting shares in the
share capital of the Corporation;
"NON-COMPETE TERMINATION" means termination of the Employment Agreement
(a) pursuant to the expiry of the Initial Term (as defined in the
Employment Agreement) or any subsequent renewal period, (b) by the
Corporation for Just Cause (as defined in the Employment Agreement) or
(c) by Xx. Xxxxxxxxx Xxxxxxx without Good Reason (as defined in the
Employment Agreement);
"NON-COMPETITION PERIOD" means the period commencing on the date hereof
and ending upon termination of this Agreement in accordance with the
terms hereof;
"NOTICE" has the meaning ascribed thereto in Section 13.2 hereof;
"OFFEREE" has the meaning ascribed thereto in Section 6.4.1 hereof;
"OLD SHAREHOLDERS AGREEMENT" has the meaning ascribed thereto in the
recitals hereof;
"OPPORTUNITY" has the meaning ascribed thereto in Section 9.1.1 hereof;
"PARTIES" has the meaning ascribed thereto in the recitals hereof;
"PARTY" has the meaning ascribed thereto in the recitals hereof;
"PERMITTED TRANSFEREE" has the meaning ascribed thereto in Section 6.6
hereof;
"PERSON" means an individual, a corporation, limited partnership, general
partnership, joint stock company or association, joint venture,
association, company, trust, bank, trust company, land trust, investment
trust, society or other entity, organization and syndicate whether
incorporated or not, a trustee, executor, or other legal personal
representative, and any government or agency thereof;
"PREFERRED SHARES" means the CDN$1,000 non-voting redeemable,
retractable, non-cumulative preferred shares in the share capital of the
Corporation;
"PRESENTING SHAREHOLDER" has the meaning ascribed thereto in Section
9.1.1 hereof;
"PTIC" has the meaning ascribed thereto in the recitals hereof;
"RECIPIENT" has the meaning ascribed thereto in Section 6.2.1 hereof;
"RESTRICTED AREA" means the United States, Canada and any other country
in which the Corporation, Subsidiary or any other Investee Entity
conducts, has conducted, or has declared, at its board or management
level or otherwise, its intention to conduct, at the relevant time, any
business or undertaking falling within the scope of activities
contemplated in the definition of "Business" in the recitals hereof or
which business or
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undertaking is contemplated in a current budget of the Corporation,
Subsidiary or any other Investee Entity;
"SELLING SHAREHOLDER" has the meaning ascribed thereto in Section 7.12.1
hereof;
"SHAREHOLDERS" has the meaning ascribed thereto in the recitals hereof;
"SHARES" means the Subordinate Voting Shares, the Multiple Voting Shares
and the Preferred Shares, as well as any other shares in the share
capital of the Corporation that are authorized pursuant to the terms
hereof;
"SUBORDINATE VOTING SHARES" means the subordinate voting shares in the
share capital of the Corporation;
"SUBSIDIARY" means a corporation, partnership, business trust or other
similar entity Controlled, directly or indirectly, by the Corporation;
"TAG-ALONG RIGHT" has the meaning ascribed thereto in Section 6.3 hereof;
"TECHNOLOGY" has the meaning ascribed thereto in Section 7.10.5 hereof;
"TRANSFER" of a Share includes any sale, exchange, transfer, assignment,
gift, granting of an option, mortgage, pledge, encumbrance, charge,
hypothecation, alienation, disposition or other transaction, whether
voluntary, involuntary or by operation of law, by which the legal or
beneficial ownership of, or any security interest or other right, title
or interest in, such Share passes from one Person to another or to the
same Person in a different capacity, whether or not for value, and any
change of Control of the legal or beneficial owner of the Share or of any
Person that Controls, directly or indirectly, in any manner whatsoever,
such legal or beneficial owner of the Share.
ARTICLE 2
TERM OF AGREEMENT
2.1 Term
This Agreement shall terminate on the earlier of:
2.1.1 subject to Section 7.6.20 hereof, and upon its replacement with an
amended and restated shareholders agreement, immediately prior to
or concurrently with the closing of an initial public offering of
any class of shares of the Corporation;
2.1.2 the date this Agreement is terminated by written agreement of FMRC
and PTIC; and
2.1.3 the bankruptcy, receivership, liquidation or dissolution of the
Corporation or any other similar proceeding or action.
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2.2 Old Shareholders Agreement
The Old Shareholders Agreement is hereby terminated and of no further
force and effect.
ARTICLE 3
IMPLEMENTATION OF AGREEMENT
3.1 Shareholder Covenants
Each of the Shareholders covenants and agrees that, subject to any
applicable law and regulation, it shall vote or cause to be voted the
Shares held by it to accomplish and give effect to the terms and
conditions of this Agreement and that it shall otherwise act in
accordance with the provisions and intent of this Agreement.
3.2 Conflict
Subject to the provisions of the Act, in the event of any conflict
between the provisions of this Agreement and the Articles or By-Laws,
each of the Shareholders agrees to vote the Shares held by it so as to
give effect to the provisions of this Agreement.
3.3 Covenants by the Corporation
The Corporation consents to the terms of this Agreement and hereby
covenants with each of the other Parties hereto that it will at all times
during the term of this Agreement be governed by the terms and provisions
hereof in carrying on its Business and affairs, and each of the
Shareholders shall vote or cause to be voted its respective Shares to
cause the Corporation to fulfil its foregoing covenants.
3.4 One Party
For all purposes under this Agreement, each Shareholder and its Permitted
Transferees shall be considered as one Party enjoying all the rights and
assuming all of the obligations pursuant to the terms of this Agreement.
In a situation where a Shareholder has one or more Permitted Transferees,
the Shareholder in question, so long as it remains a Shareholder, shall
be deemed, for all legal purposes, to have an irrevocable power of
attorney from its Permitted Transferees with respect to all matters
arising out of this Agreement. Any decision by such Shareholder shall be
binding upon its Permitted Transferees. The liability of such Shareholder
and its Permitted Transferees shall be solidary. In the event that the
Shareholder in question ceases to be a Shareholder and more than one of
its Permitted Transferees remain Shareholders, then the Permitted
Transferee with the greatest number of Shares shall become the agent and
attorney of the other Permitted Transferees.
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ARTICLE 4
ADDITIONAL SUBSCRIPTION
4.1 Additional Subscription
In order to meet the anticipated financial needs of the Corporation in
accordance with the principles set forth in the recitals hereof, each of
PTIC and FMRC hereby agree to subscribe for the following number and
class of Shares for the following aggregate subscription price at the
following dates:
NUMBER OF NUMBER OF
NAME OF SUBORDINATE VOTING SHARES MULTIPLE VOTING SHARES
SHAREHOLDER (AND AGGREGATE (AND AGGREGATE DATE OF
SUBSCRIPTION PRICE TO BE SUBSCRIPTION PRICE TO BE SUBSCRIPTION
PAID THEREFORE) PAID THEREFORE)
------------------------------------------------------------------------------------
PTIC 4,000,000 6,000,000 March 28, 2002
($4,000,000) ($6,000,000)
------------------------------------------------------------------------------------
FMRC 4,000,000 6,000,000 March 28, 2002
($4,000,000) ($6,000,000)
------------------------------------------------------------------------------------
PTIC 4,000,000 6,000,000 June 28, 2002
($4,000,000) ($6,000,000)
------------------------------------------------------------------------------------
FMRC 4,000,000 6,000,000 June 28, 2002
($4,000,000) ($6,000,000)
------------------------------------------------------------------------------------
4.2 Promissory Note
Concurrently herewith, each of PTIC and FMRC shall execute promissory
notes evidencing their obligation to make such subscriptions at the times
and in the amounts indicated at Section 4.1 hereof in favour of the
Corporation.
ARTICLE 5
INVESTMENT PROCESS
5.1 Sourcing of Opportunities
The Shareholders agree that, in keeping with the provisions of Section
9.1, Opportunities are to be sourced from and identified by both of them
and Xx. Xxxxxxxxx Xxxxxxx, it being understood that by reason of his
expertise and experience and the broad base of his contacts in and
knowledge of the fields identified in the first recital hereof, Xx.
Xxxxxxxxx Xxxxxxx will be the principal source of Opportunities.
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5.2 Assessment and Evaluation
5.2.1 When an Opportunity is identified pursuant to Section 9.1, it will
undergo preliminary assessment and evaluation by the Chairman of
the Corporation and its management.
5.2.2 If the results of the preliminary assessment and evaluation are,
in the opinion of the Chairman and management, positive, the
Chairman will meet with the representatives involved in the
Opportunity and will invite PTIC's management and/or nominees on
the Board to accompany him to such meetings, although it is
recognized that in most cases, PTIC will be relying on the
Chairman and management of the Corporation to perform this second
stage.
5.2.3 If the results of the second stage assessment and evaluation are
positive, the Chairman and management will perform or commission a
detailed preliminary due diligence review of the Opportunity at
the scientific, intellectual property, financial and market
positioning levels including, without limitation and if relevant
given the circumstances, an analysis of the competitive
environment, existing and potential distribution channels for the
target product or process, the steps and timing required to obtain
any FDA/Health Canada or other relevant approvals of any product
or process involved, the total projected funding requirements of
the Opportunity and sources thereof with investment by the
Corporation or third parties and details of the Interest
(including the method by which such Interest will be controlled)
that the Corporation or any Subsidiary shall take in the
Opportunity.
5.3 Board Submission
5.3.1 If the Chairman and management believe following the due diligence
analysis referred to in Section 5.2.3 that the Opportunity should
be pursued, it will be submitted to the Board in accordance with
Section 9.1.1, accompanied as therein contemplated by all
necessary relevant data and information.
5.3.2 The Shareholders recognize that depending on the technology
involved, the nature of the Opportunity and actual or potential
competing bids, the entire assessment and evaluation process,
including due diligence, Board submission and the decision as to
whether or not the Corporation should invest in the Opportunity,
may have to be compressed and completed within a very short time
frame and that accordingly, a high degree of flexibility in the
process may be advisable in the particular circumstances of a
given Opportunity at the same time while respecting the necessity
of thorough review and reporting at the management and Board
levels in the interests of the Corporation.
5.3.3 Beginning with the first submission to the Board, management shall
create a template for future submissions in respect of
Opportunities in order to permit the Board to evaluate subsequent
Opportunities on a consistent basis.
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5.4 Scientific Development Process
5.4.1 On the making of any investment in technology by the Corporation
or any Subsidiary or the taking an Interest in any Investee
Entity, the Corporation shall determine the initial benchmarks and
direction that the scientific development process aims to achieve
during the development of such technology. At least during the
Initial Period, the scientific development monitoring and control
process of the Corporation, the Subsidiaries and the Investee
Entities shall focus on scientific progress towards
pre-established objectives rather than the achievement of specific
financial goals or capital expenditures.
5.4.2 The Chairman shall report to the Board on a quarterly basis, the
scientific development of the projects of the Corporation,
Subsidiaries and any Investee Entities. Notwithstanding the
foregoing, should there be any material developments in the
scientific development process of the projects of the Corporation,
Subsidiaries or any Investee Entity within any quarter, the
Chairman shall promptly communicate such developments to the Board
in writing.
5.4.3 All reports in respect of scientific development shall include
updates on the progress in respect of pre-clinical or clinical
trial projects (phase I, II or III), various research milestones
previously identified, potential payments, royalties or equity
participation upon achievement of any milestone or otherwise.
ARTICLE 6
SALE AND ISSUANCE OF SHARES
6.1 Sale and Issue Restrictions
6.1.1 Except as otherwise set forth in this Agreement, for a period
beginning on the date hereof and expiring three (3) years
thereafter (the "INITIAL PERIOD"), neither of the Shareholders may
Transfer any of their Shares, without first obtaining the written
consent of the other Shareholder, which may be arbitrarily
withheld. Notwithstanding the foregoing, in circumstances of
extreme economic or financial hardship which justify a sale, FMRC
may sell up to twenty percent (20%) of the Shares that it holds at
such time but subject to, inter alia, Sections 6.2 and 6.3 (on a
pro rata basis with the sale of Shares by FMRC) hereof and
provided that any transferee other than PTIC shall be considered a
Permitted Transferee of FMRC for the purposes hereof.
6.1.2 No proposed dealing with any Shares (including the issuance
thereof) in violation of this Agreement shall be valid, and the
Corporation shall not record the issue or the Transfer of any
Shares in violation of this Agreement in the records of the
Corporation nor shall any voting rights attached to such Shares be
exercised, nor shall any dividends be paid on such Shares during
the period of such violation. Such disqualification shall be in
addition to and not in lieu of any other remedies to enforce the
provisions of this Agreement.
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6.1.3 Notwithstanding anything else herein contained, every Transfer of
all or a portion of the Shares held by a Shareholder, in addition
to the requirements of the Articles, shall first be subject to the
approval of the Board and be further subject to the condition that
the proposed transferee, if not already bound by this Agreement,
shall first enter into, execute and deliver such documents and
instruments necessary or desirable to evidence such agreement of
such transferee to be bound hereby.
6.2 Right of First Opportunity
At any time following the Initial Period, if a Shareholder (the
"INITIATOR") desires to sell all of its Shares to a third party, it shall
first submit to the other Shareholder (the "RECIPIENT") an internal offer
(the "INTERNAL OFFER") to sell all of the Initiator's Shares, which shall
set forth the terms and conditions of such sale (including the price per
Share) in strict compliance with the terms hereof:
6.2.1 The Recipient shall be entitled by notice in writing to the
Initiator within thirty (30) days from the date of receipt of a
copy of the Internal Offer, to:
(i) acquire the Shares from the Initiator in accordance with
the terms and conditions of the Internal Offer;
(ii) exercise its tag-along right pursuant to Section 6.3
hereof, in which case the Initiator and the Recipient may
sell their Shares to a third party in accordance with this
Section 6.2 and with Section 6.3 hereof; or
(iii) decline the Internal Offer, in which case the Initiator may
sell its Shares on the terms and conditions of (or at a
price per Share that is higher than that specified in) the
Internal Offer to any third party (save and except that the
third party shall enjoy reasonable rights of due diligence)
within one hundred and twenty (120) days of receipt or
deemed receipt of a written notice that the Recipient has
declined the Initial Offer, failing which each of the
provisions of this Section 6.2 shall again apply to any
proposed sale of Shares.
In the event that the Recipient fails to notify the Initiator within the
aforesaid thirty (30) days delay, it shall be deemed to have elected to
decline the Internal Offer and to have elected not to exercise its
tag-along right pursuant to Section 6.3.
6.2.2 An Internal Offer shall not be valid for purposes of this Section
6.2 unless:
(i) it is irrevocable and the consideration for the purchase of
the Shares shall be exclusively cash;
(ii) all Shares sold must be Free and Clear;
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(iii) the purchaser of the Shares shall assume all of the rights
and obligations in respect of the Corporation, the
Subsidiaries and under this Agreement, of the
Shareholder(s) who is (are) selling its (their) Shares and
shall also ensure that any guaranties or other security
granted by such Shareholders is (are) released upon
closing;
(iv) it requires that the purchaser of the Shares obtain on or
prior to closing all requisite statutory and regulatory
approvals in respect of its acquisition of the Shares to be
sold;
(v) provide for a closing date no later than one hundred and
eighty (180) days from the date that the Internal Offer is
received by the Recipient;
(vi) it shall not provide for the provision of management,
consulting or other fees, a payment for any non-competition
covenant, the payment of salary which is reasonably
attributable to the purchase price as opposed to the fair
consideration for future services to be rendered by the
Shareholder(s) or any of its (their) Associates, or any
other Person with whom the Shareholder does not deal at
Arm's Length, but shall include the purchase of any
indebtedness owed by the Corporation to each of the
Shareholders who are selling their Shares; and
(vii) it shall provide that the liability under the purchase
agreement of each of the Shareholders who are selling their
Shares including, without limitation, liability for breach
of representation or warranty or for a claim under an
indemnity shall not be solidary and shall not, under any
circumstances, exceed the lesser of its pro rata proportion
of any claim and the purchase price payable to such
Shareholder.
6.3 Tag-Along Right
Upon receipt of an Internal Offer, the Recipient shall have the right to
elect (the "TAG-ALONG RIGHT"), by notice in writing to the Initiator
within thirty (30) days from the date of receipt of a copy of the
Internal Offer, as a condition precedent to any sale of Shares by the
Initiator to any third party, to require the third party to purchase all
(subject to Section 6.1.1) of the Recipient's Shares for a price per
Share which is the same as that which is equal to or higher than that
which is stipulated in the Internal Offer, and otherwise upon the same
terms and conditions as contained in the Internal Offer. Should the
Recipient not have notified the Initiator of its intention to exercise
its right to require the third party to purchase all of its Shares,
within the thirty (30)-day delay mentioned hereinabove, it shall
irrevocably be deemed to have elected not to exercise such right. In the
event that the Recipient exercises the Tag-Along Right and the
transaction does not close as a result of a fault of the Initiator or
Recipient (including, without limitation, the Initiator or Recipient
deciding not to sell its Shares after indicating that it would do so),
the Initiator or Recipient, as the case may be, shall indemnify the other
Shareholder in
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respect of any damage or prejudice suffered by such Shareholder as a
result of the transaction not concluding.
6.4 Drag Along Right
6.4.1 At any time following the Initial Period, if either of the
Shareholders (for the purposes of this Section 6.4, an "OFFEREE")
receives a "GLOBAL OFFER" (as hereinafter defined) for all the
Shares held by both the Shareholders, which the Offeree wishes to
accept, the Offeree shall forthwith provide a copy of the Global
Offer to the other Shareholder and if such Global Offer is
accepted by the other Shareholder, then the Offeree shall have the
right to require the other Shareholder (herein called the "DRAG
ALONG SHAREHOLDER"), on twenty (20) days notice in writing to the
Drag Along Shareholder, to sell all of the Shares held by it to
the third party pursuant to the terms of the Global Offer for a
price per Share which is the same as that which is to be received
by the Offeree, and otherwise upon the same terms and conditions
as contained in the Global Offer. The Corporation is hereby
irrevocably appointed the agent and attorney of the Drag Along
Shareholder for the purposes of effecting registration of the
third party as a shareholder in completing the sale of the Shares
of the Drag Along Shareholder to the third party in accordance
with this Section 6.4. In the event that the transaction does not
close as a result of a fault of any of the Drag Along Shareholder
or the Offeree, as the case may be, (provided that the Global
Offer is accepted), the Drag Along Shareholder or the Offeree, as
the case may be, who has committed a fault shall indemnify the
Offeree or the Drag Along Shareholder, as the case may be, who has
not committed a fault, in respect of any damage or prejudice
suffered by it as a result of the transaction not concluding.
6.4.2 For purposes hereof, "GLOBAL OFFER" shall mean an offer for all of
the Shares made by a third party dealing at Arm's Length with the
Shareholders and the Corporation, which shall not be valid for
purposes of this Section 6.4, unless:
(i) it is irrevocable and the consideration for the purchase of
the Shares shall be exclusively cash;
(ii) all Shares sold must be Free and Clear;
(iii) the purchaser of the Shares shall assume all of the rights
and obligations in respect of the Corporation, the
Subsidiaries and under this Agreement of the Shareholders
and shall also ensure that any guarantees or other security
granted by the Shareholders are released upon closing;
(iv) it requires that the purchaser of the Shares obtain on or
prior to closing all requisite statutory and regulatory
approvals in respect of its acquisition of all of the
Shares;
(v) it shall not provide for the provision of management,
consulting or other fees, the payment for any
non-competition covenant, or the payment of
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salary which is reasonably attributable to the purchase
price as opposed to the fair consideration for future
services to be rendered by the Shareholders or any of their
Associates, or any other Person with whom the Offeree does
not deal at Arm's Length, but shall include the purchase of
any indebtedness owed by the Corporation to the
Shareholders who are selling their Shares; and
(vi) it shall provide that the Shares of the Drag Along
Shareholder shall be sold on an "As Is" basis except for a
representation and warranty of the Drag Along Shareholder
that its Shares are Free and Clear.
6.5 Rights of Purchaser
Any purchaser of all of the Shares held by either Shareholder in
accordance with the provisions of this Agreement shall be entitled to all
of the rights and benefits accruing to such Shareholder hereunder and
shall be subject to all obligations binding upon such Shareholder in
respect thereof.
6.6 Transfer to an Affiliate
Notwithstanding anything to the contrary herein, the Shareholders may
Transfer or otherwise dispose of all of their Shares to a Person which,
(i) in the case of PTIC is an Affiliate of PTIC and, (ii) in the case of
FMRC is a wholly-owned subsidiary of FMRC, another trust for the benefit
of Xx. Xxxxxxxxx Xxxxxxx and the members of his immediate family (being
his wife and children of the first degree (through blood or adoption)), a
wholly-owned subsidiary of such other trust, a company wholly owned by
Xx. Xxxxxxxxx Xxxxxxx, or the wife or children of the first degree
(through blood or adoption) of Xx. Xxxxxxxxx Xxxxxxx (in each case a
"PERMITTED TRANSFEREE"), provided, in all cases, that (a) as a condition
precedent to such Transfer, and without releasing the transferor
hereunder, the transferee shall agree in writing to be bound by the terms
and conditions of this Agreement as if it were an additional original
party thereto and (b) such transferee remains at all times a Permitted
Transferee of such Shareholder, failing which the Shares Transferred must
be forthwith re-transferred to the original Shareholder or its Permitted
Transferee.
6.7 Pre-emptive Rights
6.7.1 If the Corporation requires additional capital by way of equity,
the Corporation shall provide written notice to the Shareholders
specifying the terms and conditions of the proposed equity issue
including the amount of financing to be raised, the type of
security to be issued, the price per security to be issued and the
target completion date. Each Shareholder shall have an irrevocable
right, exercisable by written notice given to the Corporation
within fifteen (15) days after the giving of above notice by the
Corporation, to participate in the equity financing on a pro rata
basis based on the number of Shares held by such Shareholder on
the terms and conditions set forth by the Corporation and
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indicating how many additional securities each Shareholder will
purchase if the other Shareholder does not elect to exercise the
right of first refusal herein granted. In the event that a
Shareholder elects to subscribe for its pro rata proportion of the
proposed equity issue and the other Shareholder declines to so
subscribe, the Shareholder electing to so subscribe shall have the
further right and option to subscribe for all or part of the
remaining equity on the same terms and conditions as set forth by
the Corporation. If there remains equity which no Shareholder has
elected to subscribe for, the Corporation may elect to proceed
with the equity financing less the amount subscribed for under
this Section 6.7.1 or decline to proceed and to pursue its equity
capital requirements through other sources on terms and conditions
no more favourable than the terms and conditions specified to the
Shareholders. Nothing contained in this Section 6.7.1 nor Section
6.7.2 shall affect the requirement that the Board provide approval
to the proposed equity financing in accordance with Section 7.6.
6.7.2 Notwithstanding Section 6.7.1 hereof, no Shareholder shall have
any rights under Section 6.7.1 in respect of:
(i) the issue of any options or Shares of the Corporation
pursuant to any ESOP;
(ii) any Shares issued pursuant to Sections 4.1 and/or 6.7.5
hereof; and
(iii) any Preferred Shares issued to PTIC up to an aggregate
redemption/ retraction value of ten million dollars
($10,000,000).
6.7.3 PTIC agrees and covenants that as additional monies are required,
from time to time but no later than four (4) years from the date
hereof, to fund the operating expenses of the Corporation, in
conformity with the provisions of this Agreement, the Business
Plan and the Budgets, and provided that no other Party to this
Agreement, including Xx. Xxxxxxxxx Xxxxxxx, shall then be in
material and uncured breach hereof or default hereunder, PTIC
shall, pursuant to the then current Budget and Business Plan,
invest from time to time as called for by the Board of Directors
and within thirty (30) days of such call, up to but not exceeding,
ten million dollars ($10,000,000) in the aggregate, by way of
subscription for Preferred Shares; the Shareholders and the
Corporation hereby agreeing, covenanting and undertaking that,
subject to solvency tests pursuant to the Act and any covenants
made to lenders to the Corporation, as many Preferred Shares as
possible shall be redeemed by the Corporation at the end of any
quarter from the Excess Cash Flow at the full redemption price
thereof plus all declared and unpaid dividends thereon, the whole
subject to the Act and Section 7.11.3 and notwithstanding Section
7.6.19, provided that the Preferred Shares shall be so redeemed
out of such funds pro rata with the payment of any contingent
bonus, which shall be payable pursuant to the Employment Agreement
by and between the Corporation and Xx. Xxxxxxxxx Xxxxxxx (the
"EMPLOYMENT AGREEMENT"). Management shall present a determination
of Excess Cash Flow to the Board on a
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quarterly basis along with the interim financial statements of the
Corporation and the Subsidiaries. At any time, any Shareholder may
request that the auditors of the Corporation certify the Excess
Cash Flow within thirty (30) Business Days of such request. The
Corporation shall cause such auditors' certification to be sent to
the Shareholders forthwith. Any redemption required in respect of
the foregoing, shall be effected within thirty-five (35) Business
Days of a request from PTIC. Should the Corporation fail to redeem
the Preferred Shares in accordance with the foregoing, PTIC shall
have the right to cause the Corporation to repurchase such
Preferred Shares from any Excess Cash Flow at the full redemption
price thereof and the Preferred Shares shall be repurchased on a
pro rata basis with the payment of any contingent bonus which
shall be payable pursuant to the Employment Agreement. In the
event that the Corporation is prohibited by the Act from redeeming
the Preferred Shares in accordance with the foregoing, the
Shareholders hereby agree to reduce the stated capital accounts
maintained for any class of Shares in order for the Corporation to
fulfill its obligation hereunder.
6.7.4 The Preferred Shares hereinabove referred to, once redeemed (even
if during the Initial Period) may not be reissued by the
Corporation and PTIC's remaining obligations under Section 6.7.3
shall be reduced proportionately in the aggregate and as to
successive tranches accordingly.
6.7.5 In addition to the foregoing, the Shareholders have expressed an
agreement in principle to each equally contribute an additional
twelve million five hundred thousand dollars ($12,500,000) to the
Corporation through subscription for Subordinate Voting Shares or
Multiple Voting Shares if the circumstances, in their unanimous
view, justifies such investment.
6.8 Indebtedness of Shareholder to Corporation
Notwithstanding any provision hereof to the contrary, if, on the date of
closing of any sale and purchase of Shares, the selling Shareholder is
indebted to the Corporation in an amount recorded on the books of the
Corporation and verified by the auditors of the Corporation, then unless
otherwise agreed in writing between the Corporation and the selling
Shareholder, each purchasing shareholder shall pay the purchase price
payable therefor by it to the Corporation by tabling and delivering to
the Secretary of the Corporation, at the time of closing of such purchase
and sale, the purchase price for such Shares and the Corporation shall
apply the total purchase price proceeds to the repayment of the
indebtedness of the selling Shareholder to the Corporation. If such
proceeds exceed such indebtedness, the Corporation shall pay the excess
over to the selling Shareholder at the time of closing of such purchase
and sale. In the event that the selling Shareholder sells all of the
Shares owned by it and the indebtedness of the selling Shareholder to the
Corporation exceeds the proceeds of such sale, then the selling
Shareholder shall at the date of closing pay the balance of such
indebtedness to the Corporation to retire such indebtedness.
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ARTICLE 7
BOARD OF DIRECTORS, MANAGEMENT AND ORGANIZATION
7.1 Board of Directors
7.1.1 Each of the Shareholders agrees that the Board shall consist of
eight (8) Directors, namely four (4) nominees of PTIC and four (4)
nominees of FMRC.
7.1.2 The Party entitled under Section 7.1.1 to nominate a Director may
replace any Director nominated by it at any time and from time to
time. Any such Party who wishes to replace a Director may have
such Director replaced at any duly constituted meeting of the
Shareholders or shall forward a written resolution to that effect,
signed by that Shareholder, to the other Shareholder not less than
forty-eight (48) hours before a meeting of Directors at which such
replacement director is expected to attend. Upon receipt of such
written resolution, the other Shareholder shall execute the
resolution and promptly return it to the Party initiating the
same, who, upon receipt thereof, shall forward the signed
resolution to the Corporation for filing in the corporate minute
book. However, the holders of Shares entitled to nominate
directors may waive in writing the right to replace any named
Director under Section 7.1.1.
7.1.3 In the event that any Shareholder sells all of its Shares in
accordance with this Agreement, the nominated Directors of such
Shareholder shall resign and shall provide a release to the
Corporation and the purchaser of such Shares shall be entitled to
the same rights, if any, to nominate Directors as such Shareholder
had.
7.2 Terms of Office
The term of office of a Director shall commence on the date of that
individual's election to the Board and shall terminate at the close of
the next following annual meeting of the Shareholders, provided that his
successor is elected at such meeting, or at any time prior thereto if the
Shareholder nominating a Director replaces such Director in accordance
with Section 7.1.2.
7.3 Powers and Duties of Directors
Subject to the Act and the provisions hereof, the Directors shall manage
or supervise the business and affairs of the Corporation, except as such
authority may be delegated by the Directors from time to time.
7.4 Casting Vote
The Chairman of any meeting of the Board of Directors of the Corporation
shall have no additional or casting ballot.
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7.5 Exercise of Authority
7.5.1 Unless otherwise agreed to in writing by all of the Directors, but
always subject to the Act, a quorum of any meeting of the Board
shall consist of a majority of Directors then in office, provided
in all cases, such majority includes two (2) Directors nominated
by each of FMRC and PTIC.
7.5.2 Unless all of the Directors are present (except where a Director
attends a meeting for the express purpose of objecting to the
transaction of any business on the grounds that the meeting is not
lawfully called) or those absent waive notice, no meeting of
Directors shall be validly convened unless not less than
forty-eight (48) hours' written notice thereof is given in
accordance with the provisions of the By-Laws.
7.5.3 No resolution with respect to any matter may be put to any meeting
of the Board unless the notice of the meeting sets forth such
matter as an item on the agenda for the meeting or unless all of
the Directors either are present and do not object to the matter
being put to the meeting or otherwise waive the provisions of this
Section 7.5.3.
7.5.4 Except as otherwise herein provided, decisions of the Board shall
be effective only if approved by a majority of the votes cast at a
meeting of the Directors or by written resolution signed by all of
the Directors.
7.6 Extraordinary Matters
Notwithstanding any provision to the contrary in the Articles, the
By-Laws or this Agreement other than Section 7.7 hereof, the following
matters shall (in addition to all other matters which by law require
board approval) require the approval of all of the Directors nominated by
PTIC participating at the meeting (or of the sole nominee if only one be
present) and all of the Directors nominated by FMRC participating at the
meeting (or of the sole nominee if only one be present):
7.6.1 the appointment and terms of employment of any individual to the
office of chairman, vice-chairman, chief executive officer, chief
operating officer, chief financial officer and all other senior
officers and executives of the Corporation. For the first year of
operation of the Corporation, Xx. Xxxxxxxxx Xxxxxxx shall be
chairman and of the Corporation and Xx. Xxxxx Xxxxxxxxx shall be
vice-chairman;
7.6.2 any material change in the terms of employment or compensation of
any officer or consultant of the Corporation or any Subsidiary
other than as contemplated in the Budget;
7.6.3 approval of the business plan of the Corporation and any material
modifications thereto (the "BUSINESS PLAN"). It being accepted and
agreed that the Business Plan shall be updated by the Corporation
annually and approved by the Board of
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Directors at least once a year. Should the Business Plan be
changed during the year, such changes must be adopted by the Board
of Directors as hereinabove provided. Schedule 7.6.3 hereof
contains the most recent version of the Business Plan;
7.6.4 approval of the Budget of the Corporation and any Subsidiary and
changes to or deviations from it resulting in a material and
substantial variance;
7.6.5 any material change in the Corporation's Business (other than a
material change beyond the control of the Corporation) or the
taking of any action which may lead to or result in such material
change;
7.6.6 acquisitions, investments, dispositions, reorganizations or other
transactions that (a) involve the Corporation or the Subsidiary in
any way; (b) involve an Interest of the Corporation or any
Subsidiary in an Investee Entity; or (c) deviate from the Business
Plan;
7.6.7 the entering into or amendment of any agreement with any Person
who is not dealing at Arm's Length with the Corporation;
7.6.8 the taking or institution of any proceedings for the winding up,
liquidation, reorganization or dissolution of the Corporation or
any of its Subsidiaries;
7.6.9 the making of an assignment for the benefit of any creditors of
the Corporation or of any of its Subsidiaries;
7.6.10 the amalgamation, consolidation, merger of, or the entering into
of any agreement to amalgamate, consolidate or merge, the
Corporation or any of its Subsidiaries with any Person, or the
continuance or corporate reorganization of any kind of the
Corporation or any of its Subsidiaries;
7.6.11 the sale, lease, exchange or other disposition of all or
substantially all of the assets of the Corporation or any of its
Subsidiaries or any sale, lease, exchange, or other disposition of
any material asset of the Corporation or any of its Subsidiaries
out of the ordinary course of business;
7.6.12 subject to Sections 6.7.3 and 7.11.3 hereof, the establishment or
adoption of a dividend policy, the declaration, payment or setting
aside for payment of any dividend, the distribution of any surplus
or earnings, the return of any capital or any other payment or
distribution of assets of the Corporation to any Shareholder;
7.6.13 the amendment of the Articles or By-Laws;
7.6.14 any change in the number of Directors;
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7.6.15 the borrowing of money on behalf of the Corporation or any
Subsidiary or the approval of the terms of any government
assistance of any kind to the extent such governmental assistance
is not included in the current Budget;
7.6.16 any change to the auditors, lawyers or bankers of the Corporation.
The Shareholders hereby agree that initially the auditors of the
Corporation shall be Deloitte & Touche, Davies Xxxx Xxxxxxxx &
Vineberg LLP shall be legal counsel to the Corporation and the
bankers of the Corporation shall be RBC Financial Group.
7.6.17 the guarantee or indemnification by the Corporation or any of its
Subsidiaries of, or the grant of security by the Corporation or
any of its Subsidiaries for, the debts or obligations of any
Person;
7.6.18 the making of any loans or the granting of any other financial
assistance to any Shareholder or Associate of any Shareholder;
7.6.19 the issuance or allotment of Shares or the granting of any right,
option or privilege to acquire any Shares or the redemption or
repurchase by the Corporation of Shares, other than as
contemplated in this Agreement; and
7.6.20 subject to Section 7.12, any public offering of Shares.
7.7 Recourse against Shareholders
7.7.1 Notwithstanding Section 7.6 hereof, in the event that the
Corporation must exercise any recourse against a Shareholder (or
its Affiliate including, in the case of FMRC, Xx. Xxxxxxxxx
Xxxxxxx) or terminate, amend, modify or enforce an agreement by
and between the Corporation and a Shareholder (or its Affiliate
including, in the case of FMRC, Xx. Xxxxxxxxx Xxxxxxx), such
Shareholder and its nominees on the Board shall not be entitled to
participate in such decision, provided however that in the event
such Shareholder disputes the existence of such recourse or
termination, amendment, modification or enforcement right, then,
such matter shall be considered a "Dispute" for the purposes
hereof and the Corporation shall refrain from any action until
final decision or award is made pursuant to Article 12 hereof.
7.8 Meetings of Shareholders
7.8.1 The quorum for the transaction of business at any meeting of the
Shareholders shall be two (2) or more persons present in person or
by proxy provided that all Shares held by FMRC and PTIC are
represented at the meeting. No meeting shall continue with the
transaction of business in the absence of a quorum.
7.8.2 In the case quorum is not reached at any Shareholders meeting,
that meeting may be adjourned by the Shareholders attending such
meeting to a later date not earlier than three (3) Business Days
after such original meeting date and no later than
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fifteen (15) Business Days after such original meeting date, in
which case the quorum required for such Shareholders meeting shall
be the number of Shares present (in person or by proxy) at such
meeting. A notice of the date, time and place of such meeting must
be sent to all Shareholders at least three (3) Business Days prior
to such meeting by facsimile and overnight courier.
7.8.3 Subject to Section 7.6, all questions before the Shareholders
shall be decided by a majority of sixty percent (60%) of the
Shares of each class. The chairman of the meeting of the
Shareholders shall be decided by a majority of the Shares voting,
and shall have no additional or casting ballot.
7.9 Committees
7.9.1 In the spirit of accomplishing the objectives set forth in the
third and fourth recitals hereof, the Board may establish an
executive committee to which the Board shall, subject to the Act,
delegate certain responsibilities (the "EXECUTIVE COMMITTEE"). The
Shareholders hereby agree that the Executive Committee shall
consist of four (4) members, namely two (2) nominees of PTIC and
two (2) nominees of FMRC. The provisions of Sections 7.2, 7.4 and
7.5 hereof shall apply to the meetings of the Executive Committee,
mutatis mutandis, except that any decisions of the Executive
Committee shall be made by a unanimous decision of all members of
such Executive Committee.
7.9.2 The Board of Directors may establish and provide for other
committees of the Board. All such committees shall have equal
representation as between the Shareholders.
7.10 Management
7.10.1 Subject to the foregoing, the day to day management,
responsibility and supervision of the Business of the Corporation
shall be entrusted to the Chairman of the Corporation. Xx.
Xxxxxxxxx Xxxxxxx, as the Chairman shall, ensure that the
Corporation does not breach any non-competition and
non-solicitation clauses found at paragraphs 12, 13 and 14 of the
agreement attached hereto as Schedule 7.10.1 which may be binding
on him in favour of Shire BioChem Inc. (formerly BioChem Pharma
Inc.).
7.10.2 The Corporation may invest up to twenty percent (20%) of the
proceeds it receives from the Shareholders on account of their
subscription for Subordinate Voting Shares and Multiple Voting
Shares in biotechnology and/or healthcare stocks that are publicly
listed.
7.10.3 Subject to (i) Section 7.6.12 hereof, (ii) normal and prudent
reserves and compliance with solvency tests provided for pursuant
to the Act or any covenants in favour of lenders to the
Corporation, (iii) the redemption/retraction of the Preferred
Shares pursuant to Section 6.7.3; (iv) the payment of any deferred
bonus pursuant to Section 6.7.3 and (v) the provision for
investments pursuant to the
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Business Plan and Budget, the Corporation and the Subsidiary (and
to the extent the Corporation or any Subsidiary is able to do so,
any Investee Entity) shall operate under the principle of maximum
distribution of cash flow to the Shareholders. The Shareholders
hereby agree that following the redemption/retraction of the
Preferred Shares and payment of the bonus which shall be payable
pursuant to the Employment Agreement in accordance with Section
6.7.3 hereof, any Excess Cash Flow shall be available for
distribution to the Shareholders in accordance with the foregoing.
A determination as to the nature and amount of such distribution
to the Shareholders shall be made by the Board of Directors on a
quarterly basis. Should any Directors or Shareholders so request,
the Corporation shall obtain an auditor's certification of the
Excess Cash Flow in respect of any quarter.
7.10.4 The intention of the Shareholders is to operate the Corporation on
two (2) levels. The Shareholders intend that the Corporation will
look to a stand-alone operation capable of supporting an initial
public offering within five (5) years of the date hereof. At the
same time, as technology is developed, or other business
opportunities developed or acquired, they may be spun off into new
vehicles (each being an "ENTITY") which could themselves be
initial public offering candidates in time, or could form the
nucleus of one or more private equity funds in which the
Shareholders (or the Corporation) would be the general and
managing partners alone or in association with others in order to
attract research and development money to bring the subject
technology or business (which may be partly third-party owned) to
maturity and marketability. In all cases, the Shareholders will
share equally in any and all such ventures.
7.10.5 Subject to Section 9.2, all technology (including intellectual as
well as intangible or tangible property, hardware, software,
patents, trademarks, know-how etc. without exception or reserve
(herein "TECHNOLOGY")) developed or identified by either
Shareholder and relating to the Business will be transferred to
the Corporation or the relevant Entity. Any technology developed
by employees of the Corporation or, subject to Section 9.2, any
other relevant Entity will belong to the Corporation and the
Corporation shall ensure that terms of employment of all its
employees and the employees of its Subsidiaries so provide in the
broadest sense, including moral and other unregisterable or
unassignable rights.
7.11 Insurance
7.11.1 Within a reasonable period following the date hereof, the
Corporation shall procure directors and officers liability
insurance in an amount not less than five million dollars
($5,000,000) per occurrence.
7.11.2 Within a reasonable period following the date hereof, the
Corporation shall procure a key man insurance on the life and
capacity of Xx. Xxxxxxxxx Xxxxxxx with a value of not less than
fifty million dollars ($50,000,000) and a term of no less than
five (5) years. Xx. Xxxxxxxxx Xxxxxxx shall provide his full
cooperation in
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respect of the foregoing. The Shareholders hereby agree to (a)
increase the value of such policy (i) upon making any additional
investment in the Corporation pursuant to, inter alia, Section
6.7.5, (ii) should PTIC have invested in the Preferred Shares of
the Corporation pursuant to Section 6.7.3 or (iii) should any
bonus become payable pursuant to the Employment Agreement and; (b)
extend the policy upon its expiration should the Corporation not
have concluded an initial public offering at such time.
7.11.3 The irrevocable loss payee of the key man insurance policy
referred to in Section 7.11.2 above, shall be the Corporation or,
in the alternative if the Shareholders agree, to the Shareholders.
Notwithstanding any provision to the contrary in the Articles, the
By-Laws or this Agreement (other than the preceding sentence),
upon receipt of any proceeds of such key man insurance policy, the
Corporation shall immediately cause dividends to be declared and
paid to the Shareholders in the aggregate amount of such proceeds,
which dividends shall be paid to the Shareholders in proportion to
their investment in the Shares, including in the case of PTIC, its
investment in the Preferred Shares referred to in Section 6.7.3
and in the case of FMRC, any accrued and unpaid bonus.
7.12 Initial Public Offering
7.12.1 Either PTIC or FMRC may, subject to Section 7.6 hereof, request an
initial public offering of the securities of the Corporation at
any time following the Initial Period (such Shareholder being a
"SELLING SHAREHOLDER"). Should the Corporation not have concluded
an initial public offering with five (5) years (such delay may be
extended by the Board for a period of up to six (6) months should
market conditions not warrant an initial public offering) from the
date hereof and, if following such period there remains no other
liquid market for the Shares, either Selling Shareholder may,
subject to applicable securities laws, regulations and policies
and market conditions, notwithstanding Section 7.6 hereof, be
entitled to require the Corporation to conclude an initial public
offering (a "DEMAND IPO") of at least 20 percent (20%) of the
Subordinate Voting Shares, the whole at the sole expense of the
Corporation and with the full cooperation of the non-Selling
Shareholder. Notwithstanding Section 2.1 hereof, any Selling
Shareholder that desires to exercise its option to require a
Demand IPO may, at any time following the initial public offering,
terminate this Agreement by giving thirty (30) days written notice
to the other Shareholder, save for the Right of First Opportunity
and Tag-Along Right pursuant to Sections 6.2 and 6.3 hereof.
7.12.2 In addition to the foregoing, a Selling Shareholder shall, subject
to, in the case of FMRC, the prior redemption of all the Preferred
Shares at the redemption price thereon, be entitled to sell into
the Demand IPO, the whole or any marketable part of its Shares,
the whole at the expense of the Corporation (other than as
required by the relevant securities laws, regulations and
policies) but subject to the advice of the underwriter selected by
the Corporation, such underwriter to act reasonably.
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7.12.3 In the event that a Selling Shareholder has indicated to the other
Shareholder, in writing, its interest to conclude a Demand IPO at
any time following five (5) years from the date hereof and such
Demand IPO has not been concluded within one hundred and twenty
(120) Business Days of the date of such notice, the Selling
Shareholder shall be entitled to, subject to the right of first
refusal provided for pursuant to Section 6.2 hereof but
notwithstanding the Tag-Along Right provided for pursuant to
Section 6.3 hereof, Transfer all of its Shares to a third party.
ARTICLE 8
FINANCIAL AND ACCOUNTING PRACTICES
8.1 Maintain Books
The Corporation shall keep or cause to be kept at its principal office
appropriate books and records with respect to the business of the
Corporation. Any books and records maintained by or on behalf of the
Corporation in the regular course of its business, including, without
limitation, books of account and records of the proceedings of the
Corporation, may be kept on, or be in the form of, computer disks, hard
disks, magnetic tape or any other information storage device, provided
that the books and records so maintained are convertible into clearly
legible written form within a reasonable period of time. The books of the
Corporation shall be maintained for financial purposes, on an accrual
basis in accordance with GAAP, consistently applied. The Shareholders
(and their agents and representatives) shall have access, and may take
copies from all such books and records at all reasonable times during
regular business hours. All such books and records shall be maintained in
the English or French language.
8.2 Fiscal Year End
The first fiscal period of the Corporation shall end on December 31, 2001
and thereafter each fiscal year shall end on December 31. In this
Agreement, reference to a fiscal year of the Corporation shall, where the
context so permits, include reference to the first fiscal period of the
Corporation.
8.3 Additional Reporting
The Corporation shall, at the expense of the Corporation, distribute to
the Shareholders, the following for so long as they continue to hold
Shares:
8.3.1 within ninety (90) days after the end of each fiscal year, the
audited consolidated and non-consolidated financial statements of
the Corporation and the audited financial statements of each
Subsidiary;
8.3.2 within forty-five (45) days after the end of each fiscal year, the
unaudited consolidated and non-consolidated financial statements
of the Corporation and the unaudited financial statements of each
Subsidiary;
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8.3.3 as soon as possible and in any event within thirty (30) days of
the end of each fiscal quarter, the interim consolidated and
non-consolidated financial statements of the Corporation as at the
end of such quarter and the interim financial statements of each
Subsidiary, including a comparison to the then current Budget;
8.3.4 on the last meeting of the Board for each quarter of the fiscal
year, a certificate or a detailed report executed by the Chairman
of the Corporation, stating that (i) vacation pay, wages, source
deductions and taxes required to be remitted by the Corporation
have been so remitted and are in good standing since the date of
the last certificate, and (ii) the property of the Corporation and
the operations of the Corporation's business are in compliance in
all material respects with all laws. Notwithstanding the
foregoing, the Chairman of the Corporation shall report verbally
to the Board as the above-mentioned items at each meeting of the
Board;
8.3.5 as soon as practicable and in any event not later than thirty (30)
days prior to the commencement of each fiscal year, the annual
operating budget, broken down on a monthly basis, of the
Corporation for the forthcoming fiscal year and the annual
operating budget for each Subsidiary which budget shall include:
annual revenue and operating expenses, capital expenditures, any
increase or decrease of (a) the investment of the Corporation in
any Subsidiary or (b) in the Interest of the Corporation or
Subsidiary in any existing Investee Entity, the taking of future
Interests in other Investee Entities, research and development
expense budget relating to scientific development expenses as well
as a forecasted balance sheet and a statement of changes in
financial position, on a consolidated and unconsolidated basis,
and a forecasted statement of Excess Cash Flow, the whole for the
upcoming fiscal year (the "BUDGET");
8.3.6 any notice, letter or other document informing the Corporation or
any Subsidiary of the occurrence of a default or occurrence of an
event of default under or pursuant to any material contract to
which the Corporation or any Subsidiary is party, the effect of
which may or would result in a material adverse change in the
financial position, business operations or assets of the
Corporation or any Subsidiary, together with comments on proposed
solutions of senior management of the Corporation in order to
solve such situation, within two (2) business Days of receipt of
said notice, letter or document;
8.3.7 any notice, letter or document notifying the Corporation of the
violation of or default under, or potential violation of or
default under any law to which the Corporation or any Subsidiary
is or may be subject, the effect of which may or would result in a
material adverse change in the financial position, business
operations or assets of the Corporation or any Subsidiary,
together with comments on proposed solutions of senior management
of the Corporation in order to solve such situation, within two
(2) business Days of receipt of such notice, letter or document;
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8.3.8 such other information respecting the financial position, business
operations and assets of the Corporation or any Subsidiary as may
reasonably be requested from time to time by the Shareholders;
8.3.9 as requested by the Shareholders, access, during normal business
hours, to inspect, examine and copy all books of accounts,
registers, etc., of the Corporation or any Subsidiary.
ARTICLE 9
RIGHT OF FIRST BUSINESS OPPORTUNITY AND NON-COMPETITION
9.1 Right of First Business Opportunity
9.1.1 The Corporation shall be the exclusive vehicle of the Shareholders
and Xx. Xxxxxxxxx Xxxxxxx for investments in the nature of the
Business worldwide. Each Shareholder and Xx. Xxxxxxxxx Xxxxxxx
agrees that during the term of this Agreement, it/he and its/his
Affiliates shall promptly submit any investment, business or
technology opportunity falling within the scope of the Business or
relating thereto which becomes known to it/him (for the purposes
hereof, a "PRESENTING SHAREHOLDER"), which is reasonably available
and which it/he is interested in pursuing, to the other
Shareholders and to the Corporation for consideration by the
Corporation together with all relevant detailed data and
information, including (without limitation) that derived from the
due diligence process referred to in Section 5.2.3, as shall be
necessary to enable the Board of Directors to arrive at an
informed opinion on the matter (an "OPPORTUNITY"). In the event
that the Corporation, after due consideration by the Board of
Directors over a reasonable period of time in the circumstances
(i) determines to invest in a portion (but not all) of any
Opportunity or (ii) declines to pursue to pursue such Opportunity
altogether, and provided the nominees of the Presenting
Shareholder on the Board of Directors have unanimously voted in
favour of the Corporation investing in all of the Opportunity, the
Shareholder (or Xx. Xxxxxxxxx Xxxxxxx) that presented the
Opportunity shall be entitled to pursue such Opportunity (or
remaining portion thereof) either alone or in association with
other parties provided that any investment made pursuant to such
Opportunity is pursued in good faith and substantially in
accordance with the parameters proposed to the Corporation.
9.1.2 The process of identification and submission of Opportunities will
be as set out in Article 5 hereof.
9.2 Non-Competition - Shareholders
Other than as permitted pursuant to Section 9.1.1 hereof, each
Shareholder agrees that it shall not, during the Non-Competition Period,
in the Restricted Area, on its own behalf or on behalf of any Person,
whether directly or indirectly, in any capacity whatsoever including,
without limitation, as an employer, employee, mandator, mandatory,
principal,
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agent, joint venturer, partner, shareholder or other equity holder,
independent contractor, licensor, licensee, franchisor, franchisee,
distributor, consultant, supplier, trustee or through any Person, carry
on or be engaged in or have any financial or other interest in or be
otherwise commercially involved in any endeavour, activity or business in
such countries which is the same as, is substantially similar to or is in
competition with the Business or with the business or undertaking of any
Subsidiary or other Investee Entity or with any business or undertaking
which is contemplated in a current budget or business plan of the
Corporation, any Subsidiary or any other Investee Entity.
9.3 Non-Competition - Xx. Xxxxxxxxx Xxxxxxx
Other than as permitted pursuant to Section 9.1.1 hereof, Xx. Xxxxxxxxx
Xxxxxxx hereby agrees that he shall not, during the period commencing on
the date hereof and ending (a) two (2) years following Non-Compete
Termination in the Restricted Area, and (b) one (1) year following
Non-Compete Termination in respect of all areas of the world other than
the Restricted Area, on his own behalf or on behalf of any Person,
whether directly or indirectly, in any capacity whatsoever including,
without limitation, as an employer, employee, mandator, mandatory,
principal, agent, joint venturer, partner, shareholder or other equity
holder, independent contractor, licensor, licensee, franchisor,
franchisee, distributor, consultant, supplier, trustee or through any
Person, carry on or be engaged in or have any financial or other interest
in or be otherwise commercially involved in any endeavour, activity or
business in such countries which is the same as, is substantially similar
to or is in competition with the Business or with the business or
undertaking of any Subsidiary or other Investee Entity or with any
business or undertaking which is contemplated in a current budget or
business plan of the Corporation, any Subsidiary or any other Investee
Entity.
9.4 Application to Family Members of Xx. Xxxxxxxxx Xxxxxxx
Should any member of the immediate family of Xx. Xxxxxxxxx Xxxxxxx be
employed or otherwise engaged by the Corporation or any Subsidiary in a
senior capacity, Xx. Xxxxxxxxx Xxxxxxx hereby agrees that as a condition
precedent to such employment or engagement, such family member shall
execute an employment agreement which shall contain exclusivity and
non-competition covenants and obligations no less extensive than those
set forth in this Article 9.
9.5 Limitation
The restrictions set forth in this Article 9 shall not extend to or apply
to (a) any of: Power Corporation of Canada, Power Financial Corporation,
Great-West Life Co. Ltd., London Insurance Group Inc., Investors Group
Inc., Mackenzie Financial Corporation or Parjointco N.V. or to any of
their respective Subsidiaries, Affiliates, Associates or investee
companies, present or future (other than PTIC and its Affiliates) all of
which are recognized by the Parties to operate independently and (b)
normal course portfolio investments by each Shareholder and Xx. Xxxxxxxxx
Xxxxxxx in public companies, up to
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but not exceeding five percent (5%) of the total issued and outstanding
shares of all classes of any such company.
9.6 Injunction
Notwithstanding Article 12 hereof, each Shareholder and Xx. Xxxxxxxxx
Xxxxxxx hereby agree that, in the event of any actual or threatened
breach by either Shareholder or Xx. Xxxxxxxxx Xxxxxxx of any of the
covenants or agreements contained in this Article 9, without prejudice to
any and all other rights and recourses of the Corporation, the
Shareholders and/or Xx. Xxxxxxxxx Xxxxxxx, the Corporation, any
Shareholder or Xx. Xxxxxxxxx Xxxxxxx shall have the right to enforce the
terms and provisions thereof by means of compelling specific performance
and/or by means of injunction.
ARTICLE 10
REPRESENTATIONS, WARRANTIES, COVENANTS
AND SHAREHOLDER RELATIONS
10.1 General
Each Shareholder and Xx. Xxxxxxxxx Xxxxxxx (in respect of Section 10.1.1)
hereby represents and warrants to the other Shareholder and to the
Corporation that such Shareholder and Xx. Xxxxxxxxx Xxxxxxx (in respect
of Section 10.1.1):
10.1.1 is not a party to, bound by or subject to any indenture, mortgage,
lease, agreement, instrument, charter or bylaw provision, statute,
regulation, order, judgment, decree or law which would be
violated, contravened or breached by, or under which any default
would occur as a result of the execution and delivery by such
Shareholder or Xx. Xxxxxxxxx Xxxxxxx of this Agreement or the
performance by such Shareholder or Xx. Xxxxxxxxx Xxxxxxx of any of
the terms hereof;
10.1.2 has duly taken all actions necessary for the authorization,
execution, delivery and performance by it of this Agreement and
that this Agreement constitutes the legal, valid and binding
obligation of it, enforceable against it in accordance with its
terms; and
10.1.3 shall own its Shares beneficially and as of record with good and
marketable title thereto, Free and Clear.
10.2 The Corporation
The Corporation hereby represents and warrants to each Shareholder that
the recitals to this Agreement are true and correct as at the date hereof
and that it is not a party to, bound by or subject to any indenture,
mortgage, lease, agreement, instrument, charter or bylaw provision,
statute, regulation, order, judgment, decree or law which would be
violated, contravened or breached by, or under which any default would
occur as a result
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of the execution and delivery by the Corporation of this Agreement or the
performance by the Corporation of any of the terms hereof.
10.3 Covenants of FMRC
FMRC hereby covenants that all of the property held by it shall be for
the benefit of Xx. Xxxxxxxxx Xxxxxxx and the members of his immediate
family (being his wife and children of the first degree (through blood
and adoption)) and no other Persons.
10.4 Relations among Shareholders
In their dealings with each other as shareholders in all matters
contemplated in this Agreement, the Shareholders shall deal with each
other and with the Corporation in the utmost good faith and shall owe to
each other the same duty of loyalty and fair dealing as would partners to
each other if the Corporation were a partnership.
ARTICLE 11
CONFIDENTIALITY
11.1 Confidentiality
Except in furtherance of the Corporation's business, the Parties hereto
agree to treat all information, data, reports and other records
("INFORMATION") relating to the Corporation's business as confidential
and will not disclose such Information to any other person other than
their legal advisors or auditors without the prior written consent of the
other Parties; provided, however, no Party shall be liable for any such
disclosure if such Information:
11.1.1 becomes generally available to the public other than as a result
of a disclosure by a Shareholder or its representatives in
violation of this Agreement or a similar agreement to which the
Corporation is a party and of which the Shareholder is aware;
11.1.2 was available to a Shareholder on a non-confidential basis without
violation of this Agreement prior to its disclosure by the
Corporation or its representatives;
11.1.3 becomes available to a Shareholder on a non-confidential basis
without violation of this Agreement from a source other than the
Corporation or its representatives provided that such source is
not bound by a confidentiality agreement with the Corporation or a
duty of confidentiality to or in respect of the Corporation to the
knowledge of the Shareholder; or
11.1.4 a Shareholder is required by law to disclose, provided that a
Shareholder first notifies the Corporation that it believes it is
required to disclose such Information and it allows the
Corporation a reasonable period of time to contest the disclosure
of such Information.
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11.2 Survival
The terms of this Article 11 shall survive any termination of this
Agreement without limit as to time.
ARTICLE 12
MEDIATION AND ARBITRATION
12.1 Dispute Resolution Procedures
12.1.1 The Parties shall, in good faith, use their reasonable efforts to
cooperate and work together to preserve the intentions and mutual
benefits contemplated by this Agreement, and to ensure the
effective and efficient performance of its terms and conditions.
12.1.2 Any dispute, controversy or claim between the Shareholders
relating to the construction and/or interpretation of this
Agreement (a "DISPUTE") shall be resolved in accordance with the
provisions of this Article 12.
12.2 First Level
All Disputes shall be referred to each of Xx. Xxxxxxxxx Xxxxxxx and the
President of PTIC for review, consideration and resolution. If such
individuals are unable to resolve the Dispute within ten (10) Business
Days after referral of the matter to them, the Parties shall submit the
Dispute for resolution pursuant to Section 12.3.
12.3 Mediation
12.3.1 If any Dispute is not resolved pursuant to Section 12.2, either
Party may, within ten (10) Business Day after completion of the
procedures set forth in Section 12.2, refer such Dispute to
mediation by serving written notice of its intention to mediate
the Dispute to the other Party.
12.3.2 The mediator of such Dispute shall be chosen by the common
agreement of the Shareholders. If the Shareholders cannot agree
within five (5) Business Days following the notice referred to
above, the mediator shall be appointed by a judge of the Superior
Court of Quebec upon application of either Shareholder or such
other person who is designated for that purpose by the
Shareholders.
12.3.3 The mediator shall be an attorney or a retired judge with
reasonable expertise and experience in mediating business and
commercial disputes. The decision of the mediator shall not be
binding on the Parties.
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12.4 Arbitration
12.4.1 If any Dispute is not resolved pursuant to Section 12.3, either
Party may, within fifteen (15) Business Days after the completion
of the procedures set forth in Section 12.3, refer such Dispute to
arbitration by serving written notice of its intention to
arbitrate the Dispute to the other Party.
12.4.2 Arbitration of any Dispute shall be conducted in accordance with
the Code of Civil Procedure (Quebec), except that such arbitration
shall be conducted by a single arbitrator to be mutually agreed to
by the Parties within three (3) Business Days following the date
of the referral of the Dispute to arbitration. The arbitrator
shall have reasonable expertise and experience in arbitrating
business and commercial disputes.
12.4.3 All arbitrations shall take place in Montreal, Quebec.
12.4.4 Any decision of the arbitrator shall be final and binding on the
Parties. The costs and expenses of the arbitration shall be paid
as the arbitrator determines. The Party to whom any amount is owed
as a result of an award of the arbitrator shall be entitled to
payment within ten (10) Business Days of the date of award.
12.4.5 Each of the Parties agrees to cooperate promptly and fully with
the other Party with respect to all aspects of arbitration,
including the appointment of the arbitrator and compliance with
any requests or orders of the arbitrator.
12.4.6 Notwithstanding the foregoing, the arbitrator shall have no power
to decide any matter which requires the consent pursuant to
Section 7.6 hereof nor shall the arbitrator be entitled to change
any permanent right of a Shareholder or Director pursuant to this
Agreement.
12.4.7 During the arbitration proceeding, the business of the Corporation
and any Subsidiaries shall be carried on in the ordinary course.
12.5 No Winding-Up
Within the Initial Period, if a Dispute is not resolvable by arbitration
pursuant to Section 12.4 and the absence of resolution of such Dispute
would otherwise give rise to the liquidation or dissolution of the
Corporation under the just and equitable rule of subsection 10(e) of the
Winding-Up and Restructuring Act (Canada) or any similar or comparable
applicable rule, the Parties agree to postpone any such recourse until
the expiry of the Initial Period. Moreover, the Parties agree to postpone
the recourse to an equivalent order under the oppression remedy provided
for pursuant to Section 241 of the Act during the Initial Period.
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ARTICLE 13
GENERAL MATTERS
13.1 No Agency or Partnership
Nothing contained in this Agreement shall make or constitute any Party
the representative, agent, principal or partner of any other Party and it
is understood that no Party has the capacity to make commitments of any
kind whatsoever or incur obligations or liabilities binding upon any
other Party.
13.2 Notice
Any notice, approval, consent, request or other communication
(hereinafter referred to as a "NOTICE") to be given under or in
connection with this Agreement shall be in writing and shall be given by
personal delivery or by telecopier or other electronic communication
which results in a written or printed Notice being given, addressed or
sent as set out below or to such other address or electronic number or
address as may from time to time be the subject of a Notice:
If to PTIC: 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: President
Fax: (000) 000-0000
If to FMRC: 0000, 000-0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx Xxxxxx
Fax: (000) 000-0000
If to the Corporation: 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Chairman
Fax: (000) 000-0000
Any Notice, if personally delivered, shall be deemed to have been validly
and effectively given and received on the date of such delivery and if
sent by telecopier or other electronic communication with confirmation of
transmission, shall be deemed to have been validly and effectively been
given and received on the Business Day next following the day it was
transmitted.
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13.3 Endorsement of Share Certificates
Any and all certificates representing Shares now or hereafter
beneficially owned by the Shareholders during the term of this Agreement
shall have endorsed thereon, in bold type, a legend in the following
form:
"The securities evidenced by this certificate are
subject to the terms of, and disposition and transfer of
such securities is restricted in accordance with the
provisions of, an agreement dated as of December 17,
2001 made by and among the Corporation, Power Technology
Investment Corporation, Xxxx Xxxxxx es qualite, trustee
of the FMRC Family Trust and Xx. Xxxxxxxxx Xxxxxxx
(Intervenant). A copy of the said agreement, together
with all amendments and supplements thereto, is
available for inspection from the Secretary of the
Corporation on request and without charge at its
registered office."
13.4 Employee Stock Ownership Plan
The Shareholders agree that the Board may establish a satisfactory stock
ownership plan which shall allocate not more than ten percent (10%) of
the outstanding Subordinate Voting Shares in the form of options for key
employees, directors, officers and consultants of the Corporation (the
"ESOP"). No key employee, director, officer or consultant of the
Corporation shall be entitled to receive options to acquire more than
five percent (5%) of the outstanding Subordinate Voting Shares pursuant
to the ESOP. Each Optionee shall agree to execute an option agreement
including a drag along and a right of first opportunity substantially
similar to the terms hereof.
13.5 Quantity and Gender
In this Agreement whenever the singular form is used, the same shall
include the plural as and when required by the context. Words denoting
gender include all other genders, unless a contrary intention is to be
inferred from or required by the subject matter or context.
13.6 Table of Contents and Section Headings
The Table of Contents and the Article and Section headings have been
inserted for convenience only and are not a part of this Agreement.
13.7 Generally Accepted Accounting Principles
All accounting and financial terms used herein, unless specifically
provided to the contrary, shall be interpreted and applied in accordance
with GAAP.
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13.8 Statutes
Any reference in this Agreement to a statute or regulations thereunder
shall be deemed to be a reference to such statute or regulation as
amended, re-enacted or replaced from time to time, and reference to
specific parts, paragraphs or sections thereof shall include all
amendments, re-enactments or replacements' unless the express provisions
hereof otherwise require.
13.9 Severability
Each provision of this Agreement is intended to be severable. If any
provision hereof is illegal or invalid, such provision shall be deemed to
be severed and deleted herefrom and such illegality and invalidity shall
not affect the validity or enforceability of the remainder hereof.
13.10 Currency
Unless otherwise indicated, all references to currency in this Agreement
shall be to Canadian dollars.
13.11 Entire Agreement
This Agreement and the other agreements executed concurrently herewith by
the Shareholders (or Associates, as the case may be) constitute the
entire agreement among the Parties hereto with regard to the subject
matter hereof and supersede all prior agreements, understandings,
representations, warranties, negotiations and discussions, whether oral
or written, among the Parties hereto with respect thereto.
13.12 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Quebec and the federal laws of Canada applicable
therein. Subject to the provisions of Article 12 hereof, the courts of
the Province of Quebec shall have the exclusive jurisdiction to hear all
disputes arising in connection with this Agreement.
13.13 Expiry of Delay
If the expiry of any delay provided for in this Agreement falls on a
non-Business Day, the delay shall be extended to the next following
Business Day.
13.14 Recitals
The recitals hereof shall form an integral part of this Agreement as if
incorporated herein.
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13.15 Including
Including and any other formulation of the verb include means including
or include(s), without limitation.
13.16 Binding Contract
This Agreement binds the parties as well as their heirs, legal
representatives, successors, and permitted assigns. The Transfer of all
of the Shares held by any Shareholder effected in accordance with the
provisions of this Agreement shall automatically result in the transfer
of all of the rights and obligations of the transferor pursuant to the
terms of this Agreement unless otherwise provided herein.
13.17 Reclassification of Shares
The provisions of this Agreement shall apply, mutatis mutandis, to any
shares or securities of any nature into which the Shares may be
converted, exchanged, reclassified, redivided, redesignated, divided or
consolidated, to any shares or securities of any nature that are received
by a Shareholder as a stock dividend or distribution payable in shares,
securities, warrants, rights or options of any nature of the Corporation,
to any shares, securities, warrants, rights or options of any nature of
the Corporation or any successor, continuing company or corporation of
the Corporation that may be received by a Shareholder on a
reorganization, amalgamation, arrangement, consolidation or merger,
statutory or otherwise, and to any shares, securities, warrants, rights
or options hereafter issued or allotted by the Corporation to a
Shareholder, all of which shares, securities, warrants, rights or options
shall be deemed to be Shares for all purposes of this Agreement including
the definition of Shares at Section 1.1 hereof.
13.18 Assignment
Neither this Agreement nor any rights or obligations hereunder are
assignable by the Parties hereto without the prior written consent of the
other Parties hereto, subject to the rights of Shareholders to Transfer
their Shares pursuant to the terms of this Agreement, including, without
limitation, the requirement that the purchaser of such Shares agrees to
be bound hereby.
13.19 Further Assurances
The parties hereto agree to sign such further and other papers, cause
such meetings to be held and resolutions passed, exercise their vote and
influence, do and perform and cause to be done and performed such further
and other acts and things as may be necessary or desirable in order to
give full effect to this Agreement and every part thereof.
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13.20 Counterparts
This Agreement may be simultaneously executed in several counterparts,
each of which when so executed shall be deemed to be an original and such
counterparts together shall constitute one and the same instrument, which
shall be sufficiently evidenced by any such original counterpart.
13.21 Consents and Waivers
No consent or waiver, expressed or implied, by any Party to or of any
breach or default by any other Party in the performance of any
obligations hereunder shall be deemed or construed to be a consent or
waiver to or of any other breach or default in the performance by such
other Party of the same or any other obligation of such Party hereunder.
Failure on the part of any Party to complain of any act or failure to act
of any other Party or to declare any other Party in default, irrespective
of how long such failure continues, shall not constitute a waiver by such
Party of its rights hereunder.
13.22 Amendment
This Agreement may only be amended by written instruments signed by all
Shareholders and the Corporation.
13.23 Language of Agreement.
The parties acknowledge that they have requested that this Agreement and
all documents, notices, correspondence and legal proceedings arising from
this Agreement or relating hereto be drawn up in English. Les parties
reconnaissent qu'elles ont exige que cette convention ainsi que tout
document, avis, correspondance et procedure legale decoulant de cette
convention soient rediges en anglais.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day first above written.
POWER TECHNOLOGY INVESTMENT CORPORATION
Per: /S/ Xxxxx Xxxxx
------------------------------------
/S/ Xxxx Xxxxxx
------------------------------------------
XXXX XXXXXX, ES QUALITE,
TRUSTEE OF FMRC FAMILY TRUST
-38-
PICCHIO PHARMACEUTICALS INC.
Per: /s/ Xxxxx Xxxxx
------------------------------------
INTERVENING FOR THE PURPOSES SET FORTH IN THE LAST RECITAL HEREOF AND TO
GUARANTY, ON A SOLIDARY BASIS, THE OBLIGATIONS OF FMRC PURSUANT TO ARTICLE 4
HEREOF AND HEREBY WAIVES THE BENEFIT OF ANY DIVISION AND DISCUSSION:
/s/ Xxxxxxxxx Xxxxxxx
------------------------------------------
XX. XXXXXXXXX XXXXXXX
SHAREHOLDERS AGREEMENT AMENDING AGREEMENT made as of the 19th day of December
2001.
BY AND AMONG: POWER TECHNOLOGY INVESTMENT CORPORATION, a
corporation duly constituted under the laws of
Canada, having its head office at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting
and represented by _______________, duly
authorized as he so declares;
(hereinafter referred to as "PTIC")
AND: XXXX XXXXXX ES QUALITE, TRUSTEE OF THE FMRC FAMILY
TRUST, a trust duly constituted in accordance with
the laws of the Province of Alberta, having its
registered office at 0000, 000-0xx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx, X0X 0X0;
(hereinafter referred to as "FMRC")
(PTIC and FMRC are hereinafter referred to as the
"SHAREHOLDERS")
AND: PICCHIO PHARMACEUTICALS INC., duly constituted
under the laws of Canada, having its principal
place of business at 000 Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting and
represented by ____________________, duly
authorized as he so declares;
(hereinafter referred to as the "CORPORATION"; the
Shareholders and the Corporation sometimes
collectively referred to as the "PARTIES", or
individually as a "PARTY")
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
shareholders agreement made as of the 17th day of December, 2001 (the "ORIGINAL
AGREEMENT");
WHEREAS the Parties wish to amend the Original Agreement in accordance with the
provisions of this amending agreement (the "AMENDING AGREEMENT");
-2-
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective
covenants and agreements hereinafter contained and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the Parties hereto), the Parties hereto covenant and agree with each
other as follows:
ARTICLE 1
PREAMBLE
1.1 The preamble to this Amending Agreement shall form an integral part
hereof as if herein recited at length.
1.2 All capitalized terms used herein which were defined in the Original
Agreement and not otherwise defined herein shall have the same meaning in
this Amending Agreement as are respectively ascribed to them in the
Original Agreement, unless the context otherwise requires.
ARTICLE 2
AMENDMENT
2.1 At the end of Section 7.10.1 of the Original Agreement, the following
sentence is added:
"No Person other than the Parties may take or claim any benefit
under this clause."
2.2 Section 10.3 of the Original Agreement is hereby deleted and replaced
with the following:
"10.3 Covenant of FMRC
FMRC hereby covenants and agrees, on behalf of those persons who
are beneficiaries under the Trust Indenture of May 21, 1999 by
which the FMRC Family Trust was settled (the "Indenture"), that
the Shares registered to it shall held in trust exclusively for
the benefit Xx. Xxxxxxxxx Xxxxxxx and the members of his immediate
family (being his wife and children of the first degree (through
blood and adoption)) (the "Bellini Beneficiaries"), that no other
Persons, whether or not they are beneficiaries under the
Indenture, shall have any right, either absolute or contingent,
present or future, legal or beneficial, to the Shares or any
interest in the Shares, that, notwithstanding the powers of
trustees under the Indenture, no Shares shall be appointed,
allocated, transferred or delivered to any Persons other than the
Bellini Beneficiaries and that any purported appointment,
allocation, transfer or delivery shall be null and void and of no
effect."
-3-
ARTICLE 3
MISCELLANEOUS
3.1 All of the signatories hereto hereby approve, ratify and confirm the
provisions of this Amending Agreement and hereby agree to be bound by the
Original Agreement as amended by this Amending Agreement.
3.2 This Amending Agreement shall be governed by and construed in accordance
with the laws of the Province of Quebec and the federal laws of Canada
applicable therein. Subject to the provisions of Article 12 of the
Original Agreement, the courts of the Province of Quebec shall have the
exclusive jurisdiction to hear all disputes arising in connection with
this Amending Agreement.
3.3 The parties acknowledge that they have requested that this Amending
Agreement and all documents, notices, correspondence and legal
proceedings arising from this Amending Agreement or relating hereto be
drawn up in English. Les parties reconnaissent qu'elles ont exige que
cette convention d'amendement ainsi que tout document, avis,
correspondance et procedure legale decoulant de cette convention
d'amendement soient rediges en anglais.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day first above written.
POWER TECHNOLOGY INVESTMENT CORPORATION
Per:
----------------------------------
---------------------------------------
XXXX XXXXXX, ES QUALITE,
TRUSTEE OF FMRC FAMILY TRUST
PICCHIO PHARMACEUTICALS INC.
Per:
----------------------------------
INTERVENING HERETO:
---------------------------------------
XX. XXXXXXXXX XXXXXXX
SHAREHOLDERS AGREEMENT AMENDING AGREEMENT made as of the 5th day of March 2002.
BY AND AMONG: POWER TECHNOLOGY INVESTMENT CORPORATION, a
corporation duly constituted under the laws of
Canada, having its head office at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting
and represented by _______________, duly
authorized as he so declares;
(hereinafter referred to as "PTIC")
AND: XXXX XXXXXX ES QUALITE, TRUSTEE OF THE FMRC FAMILY
TRUST, a trust duly constituted in accordance with
the laws of the Province of Alberta, having its
registered office at 0000, 000-0xx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx, X0X 0X0;
(hereinafter referred to as "FMRC")
(PTIC and FMRC are hereinafter referred to as the
"SHAREHOLDERS")
AND: PICCHIO PHARMACEUTICALS INC., duly constituted
under the laws of Canada, having its principal
place of business at 000 Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting and
represented by Xx. Xxxxxxxxx Xxxxxxx, duly
authorized as he so declares;
(hereinafter referred to as the "CORPORATION"; the
Shareholders and the Corporation sometimes
collectively referred to as the "PARTIES", or
individually as a "PARTY")
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
shareholders agreement made as of the 17th day of December, 2001 (the "ORIGINAL
AGREEMENT");
WHEREAS the Parties and Xxxxxxxxx Xxxxxxx (Intervenant) executed a Shareholders
Agreement Amending Agreement made as of the 19th day of December, 2001 (the
"FIRST AMENDMENT");
WHEREAS the Parties wish to further amend the Original Agreement, as amended by
the First Amendment, in accordance with the provisions of this amending
agreement (the "AMENDING AGREEMENT");
-2-
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective
covenants and agreements hereinafter contained and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the Parties hereto), the Parties hereto covenant and agree with each
other as follows:
ARTICLE 1
PREAMBLE
1.1 The preamble to this Amending Agreement shall form an integral part
hereof as if herein recited at length.
1.2 All capitalized terms used herein which were defined in the Original
Agreement and not otherwise defined herein shall have the same meaning in
this Amending Agreement as are respectively ascribed to them in the
Original Agreement, unless the context otherwise requires.
ARTICLE 2
AMENDMENT
2.1 Section 4.1 of the Original Agreement is hereby deleted and replaced with
the following:
NUMBER OF NUMBER OF
NAME OF SUBORDINATE VOTING SHARES MULTIPLE VOTING SHARES
SHAREHOLDER (AND AGGREGATE (AND AGGREGATE DATE OF
SUBSCRIPTION PRICE TO BE SUBSCRIPTION PRICE TO BE SUBSCRIPTION
PAID THEREFORE) PAID THEREFORE)
--------------------------------------------------------------------------------------
PTIC 1,000,000 1,500,000 September 9, 2002
($1,000,000) ($1,500,000)
--------------------------------------------------------------------------------------
FMRC 1,000,000 1,500,000 September 9, 2002
($1,000,000) ($1,500,000)
--------------------------------------------------------------------------------------
PTIC 3,000,000 4,500,000 March 14, 2003
($3,000,000) ($4,500,000)
--------------------------------------------------------------------------------------
FMRC 3,000,000 4,500,000 March 14, 2003
($3,000,000) ($4,500,000)
--------------------------------------------------------------------------------------
PTIC 4,000,000 6,000,000 March 15, 2004
($4,000,000) ($6,000,000)
--------------------------------------------------------------------------------------
FMRC 4,000,000 6,000,000 March 15, 2004
($4,000,000) $6,000,000
--------------------------------------------------------------------------------------
2.2 Each reference to "vice-chairman" in Section 7.6.1 of the Original
Agreement is hereby deleted and replaced with "deputy-chairman".
-3-
ARTICLE 3
MISCELLANEOUS
3.1 All of the signatories hereto hereby approve, ratify and confirm the
provisions of this Amending Agreement and hereby agree to be bound by the
Original Agreement as amended by the First Amendment and this Amending
Agreement.
3.2 This Amending Agreement shall be governed by and construed in accordance
with the laws of the Province of Quebec and the federal laws of Canada
applicable therein. Subject to the provisions of Article 12 of the
Original Agreement, the courts of the Province of Quebec shall have the
exclusive jurisdiction to hear all disputes arising in connection with
this Amending Agreement.
3.3 The parties acknowledge that they have requested that this Amending
Agreement and all documents, notices, correspondence and legal
proceedings arising from this Amending Agreement or relating hereto be
drawn up in English. Les parties reconnaissent qu'elles ont exige que
cette convention d'amendement ainsi que tout document, avis,
correspondance et procedure legale decoulant de cette convention
d'amendement soient rediges en anglais.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day first above written.
POWER TECHNOLOGY INVESTMENT CORPORATION
Per:
---------------------------------
---------------------------------------
XXXX XXXXXX, ES QUALITE,
TRUSTEE OF FMRC FAMILY TRUST
PICCHIO PHARMACEUTICALS INC.
Per:
---------------------------------
INTERVENING HERETO:
--------------------------------
XX. XXXXXXXXX XXXXXXX
SHAREHOLDERS AGREEMENT AMENDING AGREEMENT made as of the 16th day of October
2002.
BY AND AMONG: POWER TECHNOLOGY INVESTMENT CORPORATION, a
corporation duly constituted under the laws of
Canada, having its head office at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting
and represented by _______________, duly
authorized as he so declares;
(hereinafter referred to as "PTIC")
AND: XXXX XXXXXX ES QUALITE, TRUSTEE OF THE FMRC FAMILY
TRUST, a trust duly constituted in accordance with
the laws of the Province of Alberta, having its
registered office at 0000, 000-0xx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx, X0X 0X0;
(hereinafter referred to as "FMRC")
(PTIC and FMRC are hereinafter referred to as the
"SHAREHOLDERS")
AND: PICCHIO PHARMA INC., duly constituted under the
laws of Canada, having its principal place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting and
represented by Xx. Xxxxxxxxx Xxxxxxx, duly
authorized as he so declares;
(hereinafter referred to as the "CORPORATION"; the
Shareholders and the Corporation sometimes
collectively referred to as the "PARTIES", or
individually as a "PARTY")
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
shareholders agreement made as of the 17th day of December, 2001 (the "ORIGINAL
AGREEMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 19th day of December,
2001 (the "FIRST AMENDMENT");
-2-
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 5th day of March, 2002
(the "SECOND AMENDMENT");
WHEREAS the Parties wish to further amend the Original Agreement, as amended by
the First Amendment and the Second Amendment, in accordance with the provisions
of this amending agreement (the "AMENDING AGREEMENT");
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective
covenants and agreements hereinafter contained and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the Parties hereto), the Parties hereto covenant and agree with each
other as follows:
ARTICLE 1
PREAMBLE
1.1 The preamble to this Amending Agreement shall form an integral part
hereof as if herein recited at length.
1.2 All capitalized terms used herein which were defined in the Original
Agreement and not otherwise defined herein shall have the same meaning in
this Amending Agreement as are respectively ascribed to them in the
Original Agreement, unless the context otherwise requires.
ARTICLE 2
AMENDMENT
2.1 Section 4.1 of the Original Agreement is hereby deleted and replaced with
the following:
-3-
NUMBER OF NUMBER OF
NAME OF SUBORDINATE VOTING SHARES MULTIPLE VOTING SHARES
SHAREHOLDER (AND AGGREGATE (AND AGGREGATE DATE OF
SUBSCRIPTION PRICE TO BE SUBSCRIPTION PRICE TO BE SUBSCRIPTION
PAID THEREFORE) PAID THEREFORE)
--------------------------------------------------------------------------------------
PTIC 1,000,000 1,500,000 September 9, 2002
($1,000,000) ($1,500,000)
--------------------------------------------------------------------------------------
FMRC 1,000,000 1,500,000 September 9, 2002
($1,000,000) ($1,500,000)
--------------------------------------------------------------------------------------
PTIC 1,000,000 1,500,000 October 31, 2002
($1,000,000) ($1,500,000)
--------------------------------------------------------------------------------------
FMRC 1,000,000 1,500,000 October 31, 2002
($1,000,000) ($1,500,000)
--------------------------------------------------------------------------------------
PTIC 2,000,000 3,000,000 March 14, 2003
($2,000,000) ($3,000,000)
--------------------------------------------------------------------------------------
FMRC 2,000,000 3,000,000 March 14, 2003
($2,000,000) ($3,000,000)
--------------------------------------------------------------------------------------
PTIC 4,000,000 6,000,000 March 15, 2004
($4,000,000) ($6,000,000)
--------------------------------------------------------------------------------------
FMRC 4,000,000 6,000,000 March 15, 2004
($4,000,000) ($6,000,000)
--------------------------------------------------------------------------------------
ARTICLE 3
MISCELLANEOUS
3.1 All of the signatories hereto hereby approve, ratify and confirm the
provisions of this Amending Agreement and hereby agree to be bound by the
Original Agreement as amended by the First Amendment, the Second
Amendment and this Amending Agreement.
3.2 This Amending Agreement shall be governed by and construed in accordance
with the laws of the Province of Quebec and the federal laws of Canada
applicable therein. Subject to the provisions of Article 12 of the
Original Agreement, the courts of the Province of Quebec shall have the
exclusive jurisdiction to hear all disputes arising in connection with
this Amending Agreement.
3.3 The parties acknowledge that they have requested that this Amending
Agreement and all documents, notices, correspondence and legal
proceedings arising from this Amending Agreement or relating hereto be
drawn up in English. Les parties reconnaissent qu'elles ont exige que
cette convention d'amendement ainsi que tout document, avis,
correspondance et procedure legale decoulant de cette convention
d'amendement soient rediges en anglais.
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day first above written.
POWER TECHNOLOGY INVESTMENT CORPORATION
Per:
-----------------------------------
-----------------------------------------
XXXX XXXXXX, ES QUALITE,
TRUSTEE OF FMRC FAMILY TRUST
PICCHIO PHARMA INC.
Per:
-----------------------------------
INTERVENING HERETO:
---------------------------------
XX. XXXXXXXXX XXXXXXX
SHAREHOLDERS AGREEMENT AMENDING AGREEMENT made as of the 5th day of February,
2003.
BY AND AMONG: POWER TECHNOLOGY INVESTMENT CORPORATION, a
corporation duly constituted under the laws of
Canada, having its head office at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting
and represented by _______________, duly
authorized as he so declares;
(hereinafter referred to as "PTIC")
AND: XXXX XXXXXX ES QUALITE, TRUSTEE OF THE FMRC FAMILY
TRUST, a trust duly constituted in accordance with
the laws of the Province of Alberta, having its
registered office at 0000, 000-0xx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx, X0X 0X0;
(hereinafter referred to as "FMRC")
(PTIC and FMRC are hereinafter referred to as the
"SHAREHOLDERS")
AND: PICCHIO PHARMA INC., duly constituted under the
laws of Canada, having its principal place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting and
represented by Xx. Xxxxxxxxx Xxxxxxx, duly
authorized as he so declares;
(hereinafter referred to as the "CORPORATION"; the
Shareholders and the Corporation sometimes
collectively referred to as the "PARTIES", or
individually as a "PARTY")
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
shareholders agreement made as of the 17th day of December, 2001 (the "ORIGINAL
AGREEMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 19th day of December,
2001 (the "FIRST AMENDMENT");
-2-
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 5th day of March, 2002
(the "SECOND AMENDMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 16th day of October,
2002 (the "THIRD AMENDMENT");
WHEREAS the Parties wish to further amend the Original Agreement, as amended by
the First Amendment, the Second Amendment and the Third Amendment (collectively
the "AMENDING AGREEMENTS"), in accordance with the provisions of this amending
agreement (the "AMENDING AGREEMENT");
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective
covenants and agreements hereinafter contained and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the Parties hereto), the Parties hereto covenant and agree with each
other as follows:
ARTICLE 1
PREAMBLE
1.1 The preamble to this Amending Agreement shall form an integral part
hereof as if herein recited at length.
1.2 All capitalized terms used herein which were defined in the Original
Agreement and not otherwise defined herein shall have the same meaning in
this Amending Agreement as are respectively ascribed to them in the
Original Agreement, unless the context otherwise requires.
ARTICLE 2
AMENDMENT
2.1 As and from February 7, 2003, section 4.1 of the Original Agreement as
amended by the Amending Agreements and this Amending Agreement is hereby
deleted and replaced with the following:
NUMBER OF NUMBER OF
NAME OF SUBORDINATE VOTING SHARES MULTIPLE VOTING SHARES
SHAREHOLDER (AND AGGREGATE (AND AGGREGATE DATE OF
SUBSCRIPTION PRICE TO BE SUBSCRIPTION PRICE TO BE SUBSCRIPTION
PAID THEREFORE) PAID THEREFORE)
-------------------------------------------------------------------------------------
PTIC 360,000 540,000 March 14, 2003
($360,000) ($540,000)
-------------------------------------------------------------------------------------
FMRC 360,000 540,000 March 14, 2003
($360,000) ($540,000)
-------------------------------------------------------------------------------------
-3-
NUMBER OF NUMBER OF
NAME OF SUBORDINATE VOTING SHARES MULTIPLE VOTING SHARES
SHAREHOLDER (AND AGGREGATE (AND AGGREGATE DATE OF
SUBSCRIPTION PRICE TO BE SUBSCRIPTION PRICE TO BE SUBSCRIPTION
PAID THEREFORE) PAID THEREFORE)
-------------------------------------------------------------------------------------
PTIC 4,000,000 6,000,000 March 15, 2004
($4,000,000) ($6,000,000)
-------------------------------------------------------------------------------------
FMRC 4,000,000 6,000,000 March 15, 2004
($4,000,000) ($6,000,000)
-------------------------------------------------------------------------------------
ARTICLE 3
MISCELLANEOUS
3.1 All of the signatories hereto hereby approve, ratify and confirm the
provisions of this Amending Agreement and hereby agree to be bound by the
Original Agreement as amended by the First Amendment, the Second
Amendment, the Third Amendment and this Amending Agreement.
3.2 This Amending Agreement shall be governed by and construed in accordance
with the laws of the Province of Quebec and the federal laws of Canada
applicable therein. Subject to the provisions of Article 12 of the
Original Agreement, the courts of the Province of Quebec shall have the
exclusive jurisdiction to hear all disputes arising in connection with
this Amending Agreement.
3.3 The parties acknowledge that they have requested that this Amending
Agreement and all documents, notices, correspondence and legal
proceedings arising from this Amending Agreement or relating hereto be
drawn up in English. Les parties reconnaissent qu'elles ont exige que
cette convention d'amendement ainsi que tout document, avis,
correspondance et procedure legale decoulant de cette convention
d'amendement soient rediges en anglais.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day first above written.
POWER TECHNOLOGY INVESTMENT CORPORATION
Per:
-----------------------------------
-4-
-----------------------------------------
XXXX XXXXXX, ES QUALITE,
TRUSTEE OF FMRC FAMILY TRUST
PICCHIO PHARMA INC.
Per:
-----------------------------------
INTERVENING HERETO:
------------------------------
XX. XXXXXXXXX XXXXXXX
SHAREHOLDERS AGREEMENT AMENDING AGREEMENT made as of the 22nd day of April,
2003.
BY AND AMONG: POWER TECHNOLOGY INVESTMENT CORPORATION, a
corporation duly constituted under the laws of
Canada, having its head office at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting
and represented by _______________, duly
authorized as he so declares;
(hereinafter referred to as "PTIC")
AND: XXXX XXXXXX ES QUALITE, TRUSTEE OF THE FMRC FAMILY
TRUST, a trust duly constituted in accordance with
the laws of the Province of Alberta, having its
registered office at 0000, 000-0xx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx, X0X 0X0;
(hereinafter referred to as "FMRC")
(PTIC and FMRC are hereinafter referred to as the
"SHAREHOLDERS")
AND: PICCHIO PHARMA INC., duly constituted under the
laws of Canada, having its principal place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting and
represented by Xx. Xxxxxxxxx Xxxxxxx, duly
authorized as he so declares;
(hereinafter referred to as the "CORPORATION"; the
Shareholders and the Corporation sometimes
collectively referred to as the "PARTIES", or
individually as a "PARTY")
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
shareholders agreement made as of the 17th day of December, 2001 (the "ORIGINAL
AGREEMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 19th day of December,
2001 (the "FIRST AMENDMENT");
-2-
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 5th day of March, 2002
(the "SECOND AMENDMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 16th day of October,
2002 (the "THIRD AMENDMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 5th day of February,
2003 (the "FOURTH AMENDMENT");
WHEREAS the Parties wish to further amend the Original Agreement, as amended by
the First Amendment, the Second Amendment, the Third Amendment and the Fourth
Amendment (collectively the "AMENDING AGREEMENTS"), in accordance with the
provisions of this amending agreement (the "AMENDING AGREEMENT");
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective
covenants and agreements hereinafter contained and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the Parties hereto), the Parties hereto covenant and agree with each
other as follows:
ARTICLE 1
PREAMBLE
1.1 The preamble to this Amending Agreement shall form an integral part
hereof as if herein recited at length.
1.2 All capitalized terms used herein which were defined in the Original
Agreement and not otherwise defined herein shall have the same meaning in
this Amending Agreement as are respectively ascribed to them in the
Original Agreement, unless the context otherwise requires.
ARTICLE 2
AMENDMENT
2.1 As and from April 22, 2003, section 4.1 of the Original Agreement as
amended by the Amending Agreements and this Amending Agreement is hereby
deleted and replaced with the following:
-3-
NUMBER OF NUMBER OF
NAME OF SUBORDINATE VOTING SHARES MULTIPLE VOTING SHARES
SHAREHOLDER (AND AGGREGATE (AND AGGREGATE DATE OF
SUBSCRIPTION PRICE TO BE SUBSCRIPTION PRICE TO BE SUBSCRIPTION
PAID THEREFORE) PAID THEREFORE)
------------------------------------------------------------------------------------
PTIC 40,000 60,000 April 22, 2003
($40,000) ($60,000)
------------------------------------------------------------------------------------
FMRC 40,000 60,000 April 22, 2003
($40,000) ($60,000)
------------------------------------------------------------------------------------
PTIC 3,960,000 5,940,000 March 15, 2004
($3,960,000) ($5,940,000)
------------------------------------------------------------------------------------
FMRC 3,960,000 5,940,000 March 15, 2004
($3,960,000) ($5,940,000)
------------------------------------------------------------------------------------
ARTICLE 3
MISCELLANEOUS
3.1 All of the signatories hereto hereby approve, ratify and confirm the
provisions of this Amending Agreement and hereby agree to be bound by the
Original Agreement as amended by the First Amendment, the Second
Amendment, the Third Amendment and this Amending Agreement.
3.2 This Amending Agreement shall be governed by and construed in accordance
with the laws of the Province of Quebec and the federal laws of Canada
applicable therein. Subject to the provisions of Article 12 of the
Original Agreement, the courts of the Province of Quebec shall have the
exclusive jurisdiction to hear all disputes arising in connection with
this Amending Agreement.
3.3 The parties acknowledge that they have requested that this Amending
Agreement and all documents, notices, correspondence and legal
proceedings arising from this Amending Agreement or relating hereto be
drawn up in English. Les parties reconnaissent qu'elles ont exige que
cette convention d'amendement ainsi que tout document, avis,
correspondance et procedure legale decoulant de cette convention
d'amendement soient rediges en anglais.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day first above written.
POWER TECHNOLOGY INVESTMENT CORPORATION
Per:
----------------------------------
-4-
----------------------------------------
XXXX XXXXXX, ES QUALITE,
TRUSTEE OF FMRC FAMILY TRUST
PICCHIO PHARMA INC.
Per:
----------------------------------
INTERVENING HERETO:
-------------------------------
XX. XXXXXXXXX XXXXXXX
SHAREHOLDERS AGREEMENT AMENDING AGREEMENT made as of the 3rd day of July, 2003.
BY AND AMONG: POWER TECHNOLOGY INVESTMENT CORPORATION, a
corporation duly constituted under the laws of
Canada, having its head office at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting
and represented by _______________, duly
authorized as he so declares;
(hereinafter referred to as "PTIC")
AND: XXXX XXXXXX ES QUALITE, TRUSTEE OF THE FMRC FAMILY
TRUST, a trust duly constituted in accordance with
the laws of the Province of Alberta, having its
registered office at 0000, 000-0xx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx, X0X 0X0;
(hereinafter referred to as "FMRC")
(PTIC and FMRC are hereinafter referred to as the
"SHAREHOLDERS")
AND: PICCHIO PHARMA INC., duly constituted under the
laws of Canada, having its principal place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting and
represented by Xx. Xxxxxxxxx Xxxxxxx, duly
authorized as he so declares;
(hereinafter referred to as the "CORPORATION"; the
Shareholders and the Corporation sometimes
collectively referred to as the "PARTIES", or
individually as a "PARTY")
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
shareholders agreement made as of the 17th day of December, 2001 (the "ORIGINAL
AGREEMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 19th day of December,
2001 (the "FIRST AMENDMENT");
-2-
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 5th day of March, 2002
(the "SECOND AMENDMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 16th day of October,
2002 (the "THIRD AMENDMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 5th day of February,
2003 (the "FOURTH AMENDMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 22nd day of April, 2003
(the "FIFTH AMENDMENT");
WHEREAS the Parties wish to further amend the Original Agreement, as amended by
the First Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment and the Fifth Amendment (collectively the "AMENDING AGREEMENTS"), in
accordance with the provisions of this amending agreement (the "AMENDING
AGREEMENT");
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective
covenants and agreements hereinafter contained and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the Parties hereto), the Parties hereto covenant and agree with each
other as follows:
ARTICLE 1
PREAMBLE
1.1 The preamble to this Amending Agreement shall form an integral part
hereof as if herein recited at length.
1.2 All capitalized terms used herein which were defined in the Original
Agreement and not otherwise defined herein shall have the same meaning in
this Amending Agreement as are respectively ascribed to them in the
Original Agreement, unless the context otherwise requires.
ARTICLE 2
AMENDMENT
2.1 As and from July 3, 2003, section 4.1 of the Original Agreement as
amended by the Amending Agreements and this Amending Agreement is hereby
deleted and replaced with the following:
-3-
NUMBER OF NUMBER OF
NAME OF SUBORDINATE VOTING SHARES MULTIPLE VOTING SHARES
SHAREHOLDER (AND AGGREGATE (AND AGGREGATE DATE OF
SUBSCRIPTION PRICE TO BE SUBSCRIPTION PRICE TO BE SUBSCRIPTION
PAID THEREFORE) PAID THEREFORE)
------------------------------------------------------------------------------------
PTIC 560,000 840,000 July 3, 2003
($560,000) ($840,000)
------------------------------------------------------------------------------------
FMRC 560,000 840,000 July 3, 2003
($560,000) ($840,000)
------------------------------------------------------------------------------------
PTIC 3,400,000 5,100,000 July 3, 2004
($3,400,000) ($5,100,000)
------------------------------------------------------------------------------------
FMRC 3,400,000 5,100,000 July 3, 2004
($3,400,000) ($5,100,000)
------------------------------------------------------------------------------------
ARTICLE 3
MISCELLANEOUS
3.1 All of the signatories hereto hereby approve, ratify and confirm the
provisions of this Amending Agreement and hereby agree to be bound by the
Original Agreement as amended by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment
and this Amending Agreement.
3.2 This Amending Agreement shall be governed by and construed in accordance
with the laws of the Province of Quebec and the federal laws of Canada
applicable therein. Subject to the provisions of Article 12 of the
Original Agreement, the courts of the Province of Quebec shall have the
exclusive jurisdiction to hear all disputes arising in connection with
this Amending Agreement.
3.3 The parties acknowledge that they have requested that this Amending
Agreement and all documents, notices, correspondence and legal
proceedings arising from this Amending Agreement or relating hereto be
drawn up in English. Les parties reconnaissent qu'elles ont exige que
cette convention d'amendement ainsi que tout document, avis,
correspondance et procedure legale decoulant de cette convention
d'amendement soient rediges en anglais.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day first above written.
POWER TECHNOLOGY INVESTMENT CORPORATION
Per:
----------------------------------
-4-
----------------------------------------
XXXX XXXXXX, ES QUALITE,
TRUSTEE OF FMRC FAMILY TRUST
PICCHIO PHARMA INC.
Per:
----------------------------------
INTERVENING HERETO:
--------------------------------
XX. XXXXXXXXX XXXXXXX
SHAREHOLDERS AGREEMENT AMENDING AGREEMENT made as of the 12th day of August,
2003.
BY AND AMONG: POWER TECHNOLOGY INVESTMENT CORPORATION, a
corporation duly constituted under the laws of
Canada, having its head office at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting
and represented by _______________, duly
authorized as he so declares;
(hereinafter referred to as "PTIC")
AND: XXXX XXXXXX ES QUALITE, TRUSTEE OF THE FMRC FAMILY
TRUST, a trust duly constituted in accordance with
the laws of the Province of Alberta, having its
registered office at 0000, 000-0xx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx, X0X 0X0;
(hereinafter referred to as "FMRC")
(PTIC and FMRC are hereinafter referred to as the
"SHAREHOLDERS")
AND: PICCHIO PHARMA INC., duly constituted under the
laws of Canada, having its principal place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxx, X0X 0X0, herein acting and
represented by Xx. Xxxxxxxxx Xxxxxxx, duly
authorized as he so declares;
(hereinafter referred to as the "CORPORATION"; the
Shareholders and the Corporation sometimes
collectively referred to as the "PARTIES", or
individually as a "PARTY")
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
shareholders agreement made as of the 17th day of December, 2001 (the "ORIGINAL
AGREEMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 19th day of December,
2001 (the "FIRST AMENDMENT");
-2-
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 5th day of March, 2002
(the "SECOND AMENDMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 16th day of October,
2002 (the "THIRD AMENDMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 5th day of February,
2003 (the "FOURTH AMENDMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 22nd day of April, 2003
(the "FIFTH AMENDMENT");
WHEREAS the Parties and Xx. Xxxxxxxxx Xxxxxxx (Intervenant) executed a
Shareholders Agreement Amending Agreement made as of the 3rd day of July, 2003
(the "SIXTH AMENDMENT");
WHEREAS the Parties wish to further amend the Original Agreement, as amended by
the First Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment and the Sixth Amendment (collectively the
"AMENDING AGREEMENTS"), in accordance with the provisions of this amending
agreement (the "AMENDING AGREEMENT");
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective
covenants and agreements hereinafter contained and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the Parties hereto), the Parties hereto covenant and agree with each
other as follows:
ARTICLE 1
PREAMBLE
1.1 The preamble to this Amending Agreement shall form an integral part
hereof as if herein recited at length.
1.2 All capitalized terms used herein which were defined in the Original
Agreement and not otherwise defined herein shall have the same meaning in
this Amending Agreement as are respectively ascribed to them in the
Original Agreement, unless the context otherwise requires.
ARTICLE 2
AMENDMENT
2.1 As and from August 12, 2003, section 4.1 of the Original Agreement as
amended by the Amending Agreements and this Amending Agreement is hereby
deleted and replaced with the following:
-3-
NUMBER OF NUMBER OF
NAME OF SUBORDINATE VOTING SHARES MULTIPLE VOTING SHARES DATE OF
SHAREHOLDER (AND AGGREGATE (AND AGGREGATE SUBSCRIPTION
SUBSCRIPTION PRICE TO BE SUBSCRIPTION PRICE TO BE (ON OR BEFORE)
PAID THEREFORE) PAID THEREFORE)
-------------------------------------------------------------------------------------
PTIC 4,000,000 6,000,000 March 14, 2004
($4,000,000) ($6,000,000)
-------------------------------------------------------------------------------------
FMRC 4,000,000 6,000,000 March 14, 2004
($4,000,000) ($6,000,000)
-------------------------------------------------------------------------------------
For greater certainty, the aggregate obligation of each Shareholder
pursuant to the Original Agreement, as amended by the Amending Agreements
and this Amending Agreement, together with the resolution of the
directors and shareholders dated as of the date hereof and any promissory
notes of the Shareholders dated today is $10,000,000.
ARTICLE 3
MISCELLANEOUS
3.1 All of the signatories hereto hereby approve, ratify and confirm the
provisions of this Amending Agreement and hereby agree to be bound by the
Original Agreement as amended by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth
Amendment, the Sixth Amendment and this Amending Agreement.
3.2 This Amending Agreement shall be governed by and construed in accordance
with the laws of the Province of Quebec and the federal laws of Canada
applicable therein. Subject to the provisions of Article 12 of the
Original Agreement, the courts of the Province of Quebec shall have the
exclusive jurisdiction to hear all disputes arising in connection with
this Amending Agreement.
3.3 The parties acknowledge that they have requested that this Amending
Agreement and all documents, notices, correspondence and legal
proceedings arising from this Amending Agreement or relating hereto be
drawn up in English. Les parties reconnaissent qu'elles ont exige que
cette convention d'amendement ainsi que tout document, avis,
correspondance et procedure legale decoulant de cette convention
d'amendement soient rediges en anglais.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day first above written.
POWER TECHNOLOGY INVESTMENT CORPORATION
Per:
-----------------------------------
-4-
-----------------------------------------
XXXX XXXXXX, ES QUALITE,
TRUSTEE OF FMRC FAMILY TRUST
PICCHIO PHARMA INC.
Per:
-----------------------------------
INTERVENING HERETO:
------------------------------
XX. XXXXXXXXX XXXXXXX