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EXHIBIT 1
STOCK PURCHASE AGREEMENT
June 22, 2000
AXCAN PHARMA INC.
597 Laurier Boulevard
Mont-Saint-Hilaire, Quebec
J3H 6C4
RE: Purchase of the No Par Value Common Stock of Axcan Pharma Inc.,
a Canadian corporation
---------------------------------------------------------------
Ladies and Gentlemen:
In connection with the undersigned's purchase, subject to the terms and
conditions set forth herein, of 2,500,000 shares ("Shares") of the no par value
common stock ("Common Stock") of Axcan Pharma Inc., a Canadian corporation
("Axcan"), at a price of $6.00 (U.S.) per share for an aggregate purchase price
of $15,000,000 (U.S.) ("Purchase Price"), Perseus-Soros BioPharmaceutical Fund
LP ("Purchaser") acknowledges and agrees to the following:
1. Purchaser is a non-resident of Canada.
2. Purchaser's purchase shall be effective only if the Purchaser (1)
receives a copy of the final Prospectus relating to the sale of the
Shares of Common Stock included in Form F-10 filed with the Securities
and Exchange Commission and (2) confirms in writing its desire to
purchase the Shares and initiates payment as set forth below. The
consummation of the transactions contemplated hereby shall also be
conditioned upon (1) the parties hereto obtaining any and all consents,
permits and waivers necessary or appropriate for consummation of the
transactions contemplated by this agreement and (2) an aggregate
investment in Axcan of $25,000,000 (U.S.) by Investor (Guernsey) AB and
Special Situations L.P.
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3. For a period of 90 days from the date of Purchaser's receipt of the
final Prospectus, Purchaser will not knowingly transfer any of the
shares to a person who is a resident of Canada, it being understood and
acknowledged that this limitation shall not prevent Purchaser from
selling any shares in an unsolicited transaction on the NASDAQ stock
market through a U.S. broker-dealer or otherwise pursuant to U.S.
Securities laws.
4. Payment for the Shares will be initiated upon receipt of the final
Prospectus (but only if Purchaser confirms its desire to purchase after
receipt of the final Prospectus), and this agreement of purchase shall
be effective only upon initiation of payment to pay the Purchase Price
to Axcan via wire transfer to the transfer agent for Axcan to the
following account:
-2-
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The Bank of Nova Scotia
New York Agency
One Liberty Plaza
New York, New York 10006
ABA#: 026002532
Credit Account #: 07436-31
Account Name: American Securities Transfer & Trust, Inc.
Disbursement Account
5. By its acceptance and agreement of this letter, Axcan hereby represents
and warrants to Purchaser that:
a. Each of the Prospectus (which, for this purpose, shall include
both the Preliminary Prospectus dated June 1, 2000 and the final
Prospectus when filed) and the Registration Statement on Form
F-10 referred to in paragraph 2 above and the documents filed or
to be filed pursuant to the Securities Exchange Act of 1934 and
incorporated by reference in the Prospectus did not, do not or
will not, as the case may be, contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and
b. Axcan shall notify Purchaser when the Registration Statement on
Form F-10 has become effective under the Securities Act of 1933
and as of such time, no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no
proceedings for that purpose shall be pending before or, to
Axcan's knowledge, contemplated by the Securities and Exchange
Commission.
Axcan acknowledges that Purchaser is relying upon the foregoing representations
in purchasing the Shares, and Axcan agrees to indemnify Purchaser from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter that could give rise to
any such losses, claims, damages, liabilities or judgments) caused by or
resulting from a breach of any such representation.
Purchaser acknowledges that the foregoing representations and indemnification
rights are personal to the Purchaser and may not be transferred by Purchaser,
whether or not
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the Shares are transferred. Purchaser further agrees and acknowledges that the
above representations and warranties shall survive only for a period commencing
on the date hereof and expiring on the date of filing of Axcan's Form 20-F for
the fiscal year ended September 30, 2000 with the Securities and Exchange
Commission.
6. Purchaser represents and warrants to Axcan that it is purchasing the
Shares for its own account (and not as a market intermediary) in the
ordinary course of its business, and that Purchaser has no arrangements
for redistribution of the Shares.
7. It is understood that Axcan's above transfer agent is not to remit
funds received from the Purchaser until a stock certificate for the
Shares has been issued and delivered in accordance with the delivery
instructions set forth below. Axcan undertakes to cause stock
certificates to be so issued and delivered within two business days of
receipt by its above transfer agent of the Purchase Price. It is
further understood that the stock certificate, when delivered, will not
contain any restrictive or other legends and that the transfer agent
will not be given any "stop transfer" orders with respect to the
Shares.
8. Axcan agrees to cooperate with Purchaser and provide any information
necessary or desirable for Purchaser to file relevant U.S. federal
income tax returns and make any appropriate tax elections, including a
"qualified electing fund" ("QEF") election under the Internal Revenue
Code of 1986, as amended.
9. Any amendment of this agreement must be in writing. This agreement may
be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one
and the same agreement. The parties hereto confirm that any facsimile
copy of another party's executed counterpart of this letter agreement
(or the signature page thereof) shall be deemed to be an executed
original thereof. This agreement, together with the Prospectus (which,
for this purpose, shall include both the Preliminary Prospectus dated
June 1, 2000 and the final Prospectus when filed) and the Registration
Statement on Form F-10, intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein. This letter agreement supersedes all
prior agreements and understandings between the parties with respect to
such subject matter. This agreement shall be governed by and construed
in accordance with the laws of New York, without regard to the
principles of conflicts of law of any jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have executed the STOCK PURCHASE
AGREEMENT as of the date set forth above.
PERSEUS-SOROS BIOPHARMACEUTICAL FUND, L.P.
By: /s/ Dennis Purcell
------------------
Name: Dennis Purcell
------------------
Title: Managing Director
------------------
AXCAN PHARMA INC.
By: /s/ David W. Mims (June 27, 2000)
---------------------------------
Name: David W. Mims
------------------
Title: Vice President, Chief Operating Officer
---------------------------------------
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REGISTRATION AND DELIVERY INSTRUCTIONS:
Register stock in the following name:
PERSEUS-SOROS BIOPHARMACEUTICAL FUND, L.P.
Address: 16271 Street NW.
Suite 610
Washington, D.C. 20006
Attention: Rodd Macklin
Deliver stock certificates to:
PERSEUS-SOROS BIOPHARMACEUTICAL FUND, L.P.
Address: 16271 Street NW.
Suite 610
Washington, D.C. 20006
Attention: Rodd Macklin
If no instructions are provided, stock certificates will be registered in the
name of the Purchaser and delivered at the address indicated above.
Accepted this 27th day of June, 2000.
AXCAN PHARMA INC.
By: /s/ David W. Mims (June 27, 2000)
---------------------------------
Name: David W. Mims
Title: Vice President, Chief Operating Officer
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