EXHIBIT 2
STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT, dated November 17, 1999, between Xxxxxx
International Inc., a Delaware corporation ("Acquisition"), and BioChem Pharma
Inc. (the "Seller").
WHEREAS, the Seller owns 11,179,114 Common Shares (the "NAV Common
Stock"), of North America Vaccine, Inc., a corporation organized under the laws
of Canada ("NAV"); and
WHEREAS, NAV, Acquisition and Neptune Acquisition Corp. have entered
into a Share Exchange Agreement (the "Share Exchange Agreement"), dated the date
hereof, providing for acquisition to acquire all the outstanding capital stock
of NAV (the "Merger"); and
WHEREAS, Seller wishes to sell to Acquisition 714,286 shares of NAV
Common Stock, and Acquisition wishes to purchase such shares from the Seller on
the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereto agree as
follows:
1. Purchase and Sale of the Shares and the Options.
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1.1. Purchase and Sale of the Shares and the Options. Subject to
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the terms and conditions of this Agreement, at the Closing provided for in
Section 1.2, the Seller will sell, and Acquisition will purchase, 714,286 shares
of NAV Common Stock (the "Shares").
1.2. Purchase Price. The purchase price for the Shares shall be
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U.S. $7.00 per share.
1.3. Closing. The closing of the purchase and sale of the Shares
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(the "Closing") will take place at the offices of Xxxxxxx, Phleger & Xxxxxxxx
LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M. New York time on such date
as shall be mutually agreed to by the parties hereto, but in any case on or
prior to November 29, 1999. At the Closing, the Seller will deliver to
Acquisition, against payment of the purchase price therefor as provided below,
good and valid title to the Shares free and clear of any liens, charges,
encumbrances, security interests, options or rights or claims of others with
respect thereto, by (a) delivering to Acquisition certificates for the Shares,
duly endorsed in blank or accompanied by the appropriate instruments of
assignment duly executed in blank, and (b) having all requisite stock transfer
stamps attached. At the Closing, Acquisition shall pay the aggregate purchase
price for the Shares to be sold by the Seller by either delivery of a check in
New York Clearing House funds payable to the order of such Seller, or by wire
transfer of immediately available funds to an account designated by the Seller
at least three business days prior to the Closing.
2. Representations of the Seller. The Seller hereby represents and
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warrants to Acquisition as follows:
2.1. Authority. The Seller has full power and authority to enter
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into this Agreement and to carry out the terms hereof. This Agreement has been
duly executed and delivered by the Seller and constitutes the legal, valid and
binding obligation of such Seller, enforceable against the Seller in accordance
with its terms.
2.2. Title to the Shares and Options. The Seller owns 11,179,114
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shares of NAV Common Stock, and at the time of Acquisition purchases the Shares,
Acquisition will acquire good and unencumbered title thereto, free and clear of
any lien, pledge, charge, security interest, encumbrance, title retention
agreement, adverse claim or option.
2.3. No Conflict, etc. The execution and delivery of this
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Agreement, the consummation of the transactions contemplated hereby and the
performance by the Seller of this Agreement in accordance with its terms does
not and will not violate, conflict with, result in the breach of any term or
provision of, or constitute a default under, any agreement or instrument to
which the Seller is a party or by which the Seller is bound or any statute,
order, judgment, rule or regulation applicable to the Seller. The Seller is not
subject to any contractual restrictions relating to the disposition of the
Shares held by the Seller, and no consent, approval, authorization, order,
filing, registration or qualification of or with any court, governmental
authority or third person is required to be obtained by the Seller in connection
with the execution and delivery of this Agreement by the Seller or the sale of
such Shares as contemplated hereby.
3. Representations and Warranties of Acquisition. Acquisition
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represents and warrants to the Seller as follows:
3.1. Corporate Organization and Standing of Acquisition.
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Acquisition is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware.
3.2. Authority for Agreement. Acquisition has the corporate power
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and authority to execute and deliver this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
other transactions contemplated hereby have been duly authorized by
Acquisition's Board of Directors and this Agreement constitutes the valid and
legally binding obligation of Acquisition enforceable in accordance with its
terms.
3.3. No Conflict, etc. The execution and delivery of this
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Agreement, the consummation of the transactions contemplated hereby and the
performance by Acquisition of this Agreement in accordance with its terms will
not violate, conflict with, result in the breach of any term or provision of, or
constitute a default under, any agreement or instrument to which Acquisition is
a party or by which Acquisition is bound or any statute, order, judgment, rule
or regulation applicable to Acquisition. No consent, approval, authorization,
order, filing, registration or qualification of or with any court, governmental
authority or third person is required to be obtained by Acquisition in
connection with the execution and delivery of this Agreement by Acquisition and
the purchase of the Shares as contemplated hereby.
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3.4. Acquisition of Shares. Acquisition is acquiring the Shares
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purchased hereunder or acquired pursuant hereto solely for its own account with
the present intention of holding such securities for purposes of investment, and
that it has no intention of selling the Shares in a public distribution in
violation of the federal securities laws or any applicable state securities
laws. Each certificate or instrument representing the Shares shall be imprinted
with a legend in substantially the following form:
"THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR
SALE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AS TO
THE SECURITIES UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
3.5. Evaluation of Investment. Acquisition is sophisticated in
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financial matters and is able to evaluate the risks and benefits of the purchase
of the Shares. Acquisition has determined that the purchase of the Shares is
suitable for Acquisition based upon its financial situation and needs, as well
as its other securities holdings.
3.6. Receipt of Information. Acquisition has had the opportunity
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to ask questions and receive answers concerning the terms and conditions of the
sale of the Shares and has had full access to such other information concerning
NAV and its subsidiaries and affiliates as it has requested in order to evaluate
the merits and risks inherent in purchasing the Shares.
3.7. Broker Fees. There are no claims for brokerage commissions,
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finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement binding
upon Acquisition. Acquisition shall pay, and hold Seller harmless against, any
liability, loss or expense (including, without limitation, reasonable attorneys'
fees and out-of-pocket expenses) arising in connection with any such claim.
3.8. Conditions to Obligations of Acquisition. The obligation of
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Acquisition to purchase the Shares is subject to the fulfillment, at or prior to
the Closing, of the following conditions:
(a) NAV and Acquisition shall have entered into the Merger
Agreement;
(b) The representations and warranties of the Seller shall
have been true and correct in all material respects when made and as of the
Closing.
4. Conditions to Obligations of the Seller. The obligation of the
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Seller to sell the Shares is subject to the fulfillment, at or prior to the
Closing of the following conditions:
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(a) NAV and Acquisition shall have entered into the Merger
Agreement;
(b) The representatives and the warranties of Acquisition
shall have been true and correct in all material respects when made and as of
the Closing.
5. Miscellaneous.
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5.1. Amendment; Governing Law. This Agreement may only be amended
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by a writing signed by each of the parties. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
giving effect to applicable principles of conflict of laws. This Agreement may
be executed in several counterparts, each of which shall be deemed an original,
and all of which shall constitute one and the same instrument.
5.2. Assignment. This Agreement may not be assigned by any party
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hereto without the written consent of the other parties hereto.
5.3. Expenses. Each party hereto shall bear its own expenses in
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connection with the execution and delivery of this Agreement.
5.4. Notices. All notices, waivers and other communications
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hereunder or with respect hereto shall be in writing and shall be deemed to have
been duly given if signed by the respective persons giving them:
(a) If to Acquisition:
Xxxxxx International Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
with a copy to
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Esq.
(b) If to Seller, at such address as Seller shall designate.
Notices given in accordance with this Section 6.4 shall be deemed
to have been given on the date delivered.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
XXXXXX INTERNATIONAL INC.
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Designee
BIOCHEM PHARMA INC.
By: /s/ Xxxxxxxxx Xxxxxxx
Name: Xx. Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer
BIOCHEM PHARMA INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: V.P. Legal Affairs & General Counsel
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