SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 3)
BIOCHEM PHARMA INC.
(Name of Issuer)
Common Shares, Without Par Value
(Title of Class of Securities)
09058T 10 8
(CUSIP Number)
Stephen Cowden
Glaxo Wellcome plc
Glaxo Wellcome House, Berkeley Avenue,
Greenford, Middlesex Ub6 0NN, England
011-44-171-408-8706
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
with copies to:
Rhett Brandon
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017-3954
212-455-2000
June 11, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box /_/.
<PAGE>
Note: Schedules filed in paper format shall include a
signed original and five copies of the schedule, including all
exhibits. See Rule 13d-7(b) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
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<PAGE>
SCHEDULE 13D
CUSIP No. 09058T 10 8 Page 3 of 41 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Glaxo Wellcome plc
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /_/
(b) /_/
Joint Filing
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) /_/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
England
7 SOLE VOTING POWER
NUMBER OF
SHARES 13,316,908 Shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH Not applicable
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 13,316,908 Shares
10 SHARED DISPOSITIVE POWER
Not applicable
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,316,908 Shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /_/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.22%
14 TYPE OF REPORTING PERSON*
HC, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
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<PAGE>
SCHEDULE 13D
CUSIP No. 09058T 10 8 Page 4 of 41 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Glaxo Group Limited
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /_/
(b) /_/
Joint Filing
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) /_/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
England
7 SOLE VOTING POWER
NUMBER OF
SHARES 13,316,908 Shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH Not applicable
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 13,316,908 Shares
10 SHARED DISPOSITIVE POWER
Not applicable
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,316,908 Shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/_/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.22%
14 TYPE OF REPORTING PERSON*
HC, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
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<PAGE>
SCHEDULE 13D
CUSIP No. 09058T 10 8 Page 5 of 41 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Glaxo Wellcome International BV
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /_/
(b) /_/
Joint Filing
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) /_/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
The Netherlands
7 SOLE VOTING POWER
NUMBER OF
SHARES 13,316,908 Shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH Not applicable
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 13,316,908 Shares
10 SHARED DISPOSITIVE POWER
Not applicable
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,316,908 Shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/_/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.22%
14 TYPE OF REPORTING PERSON*
HC, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
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<PAGE>
SCHEDULE 13D
CUSIP No. 09058T 10 8 Page 6 of 41 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Glaxo Wellcome Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /_/
(b) /_/
Joint Filing
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) /_/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ontario, Canada
7 SOLE VOTING POWER
NUMBER OF
SHARES 13,316,908 Shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH Not applicable
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 13,316,908 Shares
10 SHARED DISPOSITIVE POWER
Not applicable
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,316,908 Shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/_/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.22%
14 TYPE OF REPORTING PERSON*
CO
* SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
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<PAGE>
This statement on Schedule 13D relates to the common shares,
without par value (the "Common Stock") of BioChem Pharma, Inc., an Ontario
corporation ("BioChem"). This statement on Schedule 13D constitutes
Amendment No. 3 to the Schedule 13D, as amended and supplemented (the
"Schedule 13D"), originally filed with the Commission by Glaxo Wellcome Inc.
(formerly known as "Glaxo Canada Inc.," an Ontario corporation, on August 5,
1991, and it amends and supplements the Schedule 13D to include the
information set forth herein. Capitalized terms not defined herein have the
meanings given to such terms in the prior statement on Amendment No. 2 to
Schedule 13D jointly filed with the Commission on May 21, 1999 by (i) Glaxo
Wellcome Inc., (ii) Glaxo Wellcome International BV, (iii) Glaxo Group
Limited and (iv) Glaxo Wellcome plc (each, a "Glaxo Reporting Person").
Information contained herein with respect to each Glaxo
Reporting Person is given solely by such Glaxo Reporting Person and no Glaxo
Reporting Person has the responsibility for the accuracy or completeness of
information supplied by another Glaxo Reporting Person. The agreement among
the Glaxo Reporting Persons relating to the joint filing of this Schedule 13D
is attached as Exhibit 1 hereto.
The information set forth in the Exhibits attached hereto is
hereby expressly incorporated herein by reference and the response to each
item of this statement is qualified in its entirety by the provisions of such
Exhibits.
Item 4. Purpose of Transaction
The information contained in Item 4 of the Schedule 13D is
hereby amended and supplemented by the following information.
On June 11, 1999, Glaxo Wellcome Inc. and BioChem entered
into a Share Purchase Agreement whereby Glaxo Wellcome Inc. agreed to sell
8,000,000 shares of BioChem Common Stock it currently owns (the "Vendor
Shares") to BioChem at a price of US$20 per share. This sale is made for
investment purposes and is subject to certain conditions which include, among
others, the approval of the Canadian regulatory authorities and the majority
approval of BioChem shareholders, excluding Glaxo Wellcome Inc. BioChem will
pay US$80 million in cash to Glaxo Wellcome Inc. at closing and issue a
promissory note for US$80 million to Glaxo Wellcome Inc. payable in January
2001 for the remaining balance. The closing is currently scheduled for July
19, 1999 or such other date not later than July 30, 1999 (the "Closing
Date").
Pursuant to the Share Purchase Agreement, Glaxo Wellcome
Inc. has also agreed not to purchase or dispose of additional shares of
BioChem Common Stock before the earliest of (1) December 31, 2000, (2) a
Change of Control Event (as defined in the Share Purchase Agreement) and (3)
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<PAGE>
the date on which BioChem issues additional shares of BioChem Common Stock
with the result that more than 125,000,000 shares of BioChem Common Stock are
issued and outstanding. However, this covenant will have no further effect
if the Vendor Shares are not sold in accordance with the Share Purchase
Agreement by the Closing Date.
As of May 3, 1999, based upon information set forth in the
1999 Management Proxy Circular of BioChem, there were 108,992,890 shares of
Common Stock of BioChem outstanding. However, on June 11, 1999, BioChem
announced that all of the Vendor Shares will be cancelled upon repurchase
from Glaxo Wellcome Inc. Consequently, as a result of this transaction,
Glaxo Wellcome plc, Glaxo Group Limited and Glaxo Wellcome International BV
may be deemed to be indirect beneficial owners of 5,316,908 shares of Common
Stock of BioChem held directly by Glaxo Wellcome Inc, which shares represent
approximately 5.3% of the outstanding shares of Common Stock of BioChem. This
Common Stock ownership percentage is based on the assumption that there will
be 100,992,908 shares of Common Stock of Biochem outstanding after this
transaction.
ITEM 5. Interest in Securities of the Issuer.
The information contained in Item 5 of the Schedule 13D is
hereby amended and supplemented by the information set forth above in Item 4,
which is hereby incorporated by reference herein.
ITEM 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
The information contained in Item 6 of the Schedule 13D is
hereby amended and supplemented by the information set forth above in Item 4,
which is hereby incorporated by reference herein.
ITEM 7. Material to be Filed as Exhibits.
Exhibit 1 -- Joint Filing Agreement among Glaxo Wellcome plc, Glaxo Group
Limited, Glaxo Wellcome International BV and Glaxo Wellcome
Inc.
Exhibit 2 -- Share Purchase Agreement, dated as of June 11, 1999, between
Glaxo Wellcome Inc. and BioChem Pharma Inc.
Exhibit 3 -- Press Release issued by Glaxo Wellcome plc, dated June 11,
1999.
Exhibit 4 -- Press Release issued by BioChem Pharma Inc., dated June 11,
1999.
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<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Date: June 18, 1999
GLAXO WELLCOME PLC
By: /s/ Stephen John Cowden
----------------------------------
Name: Stephen John Cowden
Title: Company Secretary
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<PAGE>
EXHIBIT 1 TO SCHEDULE 13D
JOINT FILING AGREEMENT
Each of the undersigned hereby agrees and consents that the Schedule
13D is, and any amendments thereto will be, filed by Glaxo Wellcome plc on
behalf of each of them and authorizes Glaxo Wellcome plc to make such
filings. The Schedule 13D is, and any amendments thereto will be, filed
jointly on behalf of each of them pursuant to Sections 13(d) and 13(g) of the
U.S. Securities Exchange Act of 1934, as amended, and the rules promulgated
thereunder. Each of these persons is not responsible for the completeness or
accuracy of the information concerning the other persons making this filing
and any future filings unless such person knows or has reason to believe that
such information is inaccurate. This agreement may be signed in
counterparts.
GLAXO WELLCOME PLC GLAXO GROUP LIMITED
By: /s/ Stephen John Cowden By: /s/ Stephen John Cowden
--------------------------------- ---------------------------------
Name: Stephen John Cowden Name: Stephen John Cowden
Title: Company Secretary Title: Company Secretary
GLAXO WELLCOME INTERNATIONAL BV GLAXO WELLCOME INC.
By: /s/ Onno Rethmeier By: /s/ Karin Huber-Levy
--------------------------------- ---------------------------------
Name: Onno Rethmeier Name: Karin Huber-Levy
Title: Director Title: Corporate Secretary
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<PAGE>
EXHIBIT 2 TO SCHEDULE 13D
SHARE PURCHASE AGREEMENT
BETWEEN
BIOCHEM PHARMA INC.
AND
GLAXO WELLCOME INC.
MADE AS OF
JUNE 11, 1999
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<PAGE>
TABLE OF CONTENTS
SHARE PURCHASE AGREEMENT
ARTICLE 1 - INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . 13
1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . 13
1.02 Headings . . . . . . . . . . . . . . . . . . . . . . . . . 15
1.03 Extended Meanings . . . . . . . . . . . . . . . . . . . . 16
1.04 Schedules . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 2 - PURCHASE AND SALE . . . . . . . . . . . . . . . . . . . . . . . 16
2.01 Purchase and Sale and Purchase Price . . . . . . . . . . . 16
2.02 Closing . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 17
3.01 Vendor's Representations and Warranties . . . . . . . . . 17
3.02 Purchaser's Representations and Warranties . . . . . . . . 18
ARTICLE 4 - COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.01 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.02 Covenants of the Vendor . . . . . . . . . . . . . . . . . 19
4.03 Covenants of the Purchaser . . . . . . . . . . . . . . . . 19
ARTICLE 5 - CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.01 Conditions for the Benefit of the Purchaser . . . . . . . 20
5.02 Conditions for the Benefit of the Vendor . . . . . . . . . 21
ARTICLE 6 - GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.01 Further Assurances . . . . . . . . . . . . . . . . . . . . 23
6.02 Time of the Essence . . . . . . . . . . . . . . . . . . . 23
6.03 Commissions . . . . . . . . . . . . . . . . . . . . . . . 23
6.04 Fees and Expenses . . . . . . . . . . . . . . . . . . . . 23
6.05 Public Announcements . . . . . . . . . . . . . . . . . . 23
6.06 Benefit of the Agreement . . . . . . . . . . . . . . . . . 23
6.07 Entire Agreement . . . . . . . . . . . . . . . . . . . . . 24
6.08 Amendments and Waiver . . . . . . . . . . . . . . . . . . 24
6.09 Assignments . . . . . . . . . . . . . . . . . . . . . . . 24
6.10 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . 25
6.12 Attornment . . . . . . . . . . . . . . . . . . . . . . . 25
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<PAGE>
SHARE PURCHASE AGREEMENT
THIS AGREEMENT made as of June 11, 1999;
B E T W E E N:
GLAXO WELLCOME INC., a corporation
amalgamated and continued under the
laws of the province of Ontario
(hereinafter referred to as the
"Vendor"),
OF THE FIRST PART,
- and -
BIOCHEM PHARMA INC., a corporation
incorporated under the laws of
Canada (hereinafter referred to as
the "Purchaser"),
OF THE SECOND PART.
WHEREAS the Vendor is the beneficial and registered owner of
13,316,908 common shares of the Purchaser;
AND WHEREAS the Vendor desires to sell and the Purchaser
desires to purchase the Shares upon and subject to the terms and conditions
hereinafter set forth;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration
of the premises and the covenants and agreements herein contained the parties
hereto agree as follows:
ARTICLE 1 - INTERPRETATION
1.01 Definitions
In this Agreement, unless something in the subject matter or
context is inconsistent therewith:
(a) "Acceleration Event" means any event whereby (i) the
Purchaser ceases or publicly declares its intent to cease to
carry on business on a going concern (ii) the Purchaser
becomes an insolvent person within the meaning of the
Bankruptcy and Insolvency Act (Canada) or commits or
threatens to commit any act of bankruptcy, (iii) there is
commenced any proceeding or the taking of any step by or
against the Purchaser for the dissolution, liquidation or
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<PAGE>
winding-up of the Purchaser or for any relief under the laws
of any jurisdiction relating to bankruptcy, insolvency,
reorganization, arrangement, compromise or winding-up, or
for the appointment of one or more of a trustee, receiver,
receiver and manager, custodian, liquidator or any other
person with similar powers with respect to the Purchaser, in
each case unless contested in good faith by the Purchaser
within 3 business days, or (iv) all or part of any material
indebtedness for borrowed money of or guaranteed by the
Purchaser is accelerated and becomes due and payable prior
to the date on which the same would otherwise be due and
payable and such acceleration is not contested by the
Purchaser in good faith within 3 business days, or (v) the
Purchaser makes a communication to the Vendor pursuant to
Subsection 4.03(4).
(b) "Acceleration Protection" means the right of the Vendor to
require immediate repayment of the Note in advance of its
maturity date on the happening of an Acceleration Event;
(c) "Agreement" means this agreement and all amendments made
hereto by written agreement between the Vendor and the
Purchaser;
(d) "Business Day" means a day other than a Saturday, Sunday or
statutory holiday in Quebec or Ontario;
(e) "Change of Control Event" means the acquisition of more than
30% of the outstanding common shares of the Purchaser by any
person other than the Vendor or any group of persons acting
jointly or in concert or any merger, amalgamation,
reorganization, recapitalization, acquisition of all or
substantially all of the assets of the Purchaser or the
acquisition of a substantial part of the treasury shares of
the Purchaser or any similar transaction which results in
any person other than the Vendor or group of persons not
including the Vendor acting jointly or in concert holding
more than 30% of the outstanding voting securities of the
Purchaser, any successor thereto or any successor to the
business of the Purchaser or any substantial part thereof,
and includes the making of a take-over bid which upon
completion would constitute a Change of Control Event as
described above, except that if the Vendor tenders any of
the common shares of the Purchaser held by the Vendor into
such a bid and the bid expires without any common shares of
the Purchaser having been acquired thereunder, then from the
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<PAGE>
time of the expiry of the bid the covenant in Subsection
4.02(1) shall revive;
(f) "Closing Date" means July 19, 1999 or such other date not
later than July 30, 1999 agreed to in writing between the
Vendor and the Purchaser;
(g) "Note" means a promissory note of the Purchaser in the
principal amount of US$80,000,000 due on the first to occur
of (i) January 19, 2001 and (ii) the occurrence of an
Acceleration Event, substantially in the form of Schedule A,
which promissory note bears interest at an annual compound
rate of 5%, is payable at any time with accrued interest and
has the benefit of the Set-off Protection and the
Acceleration Protection;
(h) "Purchase Price" has the meaning set out in Subsection
2.01(1);
(i) "Set-Off Protection" means the Vendor's entitlement as more
particularly described in the Acknowledgment and Direction
to withhold, retain and apply toward payment of the Note up
to 50% of any royalty payment due to be paid by the Vendor
or certain affiliates thereof to the Purchaser or certain
affiliates thereof after the maturity of the Note or after
the occurrence of an Acceleration Event against any amount,
including interest, then payable under the Note until the
amount is paid in full;
(j) "Shares" means 8,000,000 common shares of the Purchaser; and
(k) "Time of Closing" means 3:00 p.m. (Toronto Time) on the
Closing Date.
1.02 Headings
The division of this Agreement into Articles and Sections
and the insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation of this Agreement. The terms
"this Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof
and include any agreement supplemental hereto. Unless something in the
subject matter or context is inconsistent therewith, references herein to
Articles and Sections are to Articles and Sections of this Agreement.
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<PAGE>
1.03 Extended Meanings
In this Agreement words importing the singular number only
shall include the plural and vice versa, words importing the masculine gender
shall include the feminine and neuter genders and vice versa and words
importing persons shall include individuals, partnerships, associations,
trusts, unincorporated organizations and corporations.
1.04 Schedules
The following Schedule is annexed hereto and incorporated by
reference and deemed to be part hereof:
Schedule A - Form of Note; and
Schedule B - Acknowledgment and Direction.
ARTICLE 2 - PURCHASE AND SALE
2.01 Purchase and Sale and Purchase Price
(1) The Vendor shall sell the Shares to the Purchaser and the
Purchaser shall purchase the Shares from the Vendor for US$20 each for an
aggregate purchase price (hereinafter referred to as the "Purchase Price") of
US$160,000,000 upon and subject to the terms and conditions hereof.
(2) The Purchase Price shall be paid and satisfied:
(a) as to US$80,000,000 in immediately available funds by wire
transfer to an account designated by the Vendor or, at the
option of the Vendor, by bank draft payable at par in
Toronto to or to the order of the Vendor; and
(b) as to the balance of the Purchase Price by the Note,
both to be delivered by the Purchaser to the Vendor at the Time of Closing
against delivery to the Purchaser of a share certificate or certificates
evidencing the Shares duly endorsed for transfer to the Purchaser.
2.02 Closing
The sale and purchase of the Shares shall be completed at
the Time of Closing at the offices of McCarthy Tetrault, Suite 4800, Toronto
Dominion Bank Tower, Toronto-Dominion Centre, Toronto, Ontario.
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<PAGE>
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
3.01 Vendor's Representations and Warranties
The Vendor represents and warrants to the Purchaser that:
(a) the Vendor is a corporation duly incorporated, organized and
subsisting under the laws of the province of Ontario;
(b) 13,316,908 of the issued and outstanding common shares of
the Purchaser are beneficially owned by and registered in
the name of the Vendor;
(c) the Vendor is the beneficial and registered owner of the
Shares free and clear of all liens, charges, encumbrances
and any other rights of others;
(d) the Vendor has good and sufficient power, authority and
right to enter into and deliver this Agreement and to
transfer the legal and beneficial title and ownership of the
Shares to the Purchaser free and clear of all liens,
charges, encumbrances and any other rights of others;
(e) there is no contract, option or any other right of another
binding upon or which at any time in the future may become
binding upon the Vendor to sell, transfer, assign, pledge,
charge, mortgage or in any other way dispose of or encumber
any of the Shares other than pursuant to the provisions of
this Agreement;
(f) the Vendor is a resident of Ontario, the address of the
Vendor as shown on the share register of the Purchaser is in
Ontario;
(g) the Vendor is a resident of Canada for purposes of the
Income Tax Act (Canada); and
(h) the senior management of the Vendor is not aware of any
publicly undisclosed material fact concerning the drugs 3TC
and lamivudine which would, if disclosed, reasonably be
expected to have a significant effect on the market price or
value of the Purchaser's common shares.
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<PAGE>
3.02 Purchaser's Representations and Warranties
The Purchaser represents and warrants to the Vendor that:
(a) the Purchaser is a corporation duly incorporated, organized
and subsisting under the laws of Canada;
(b) the Purchaser has good and sufficient power, authority and
right to enter into and deliver this Agreement and, subject
to satisfaction of the conditions hereof, to complete the
transactions to be completed by the Purchaser contemplated
hereby;
(c) the Purchaser is a Canadian within the meaning of the
Investment Canada Act (Canada);
(d) the Purchaser has outstanding 108,992,890 common shares;
(e) the Purchaser has in place or is confident of obtaining
lines of credit, if needed, which are available and
sufficient to fund payment of the Purchase Price by the
Purchaser including the portion due under the Note;
(f) the senior management of the Purchaser is not aware of any
publicly undisclosed material fact in relation to the
Purchaser's business and affairs which would, if disclosed,
reasonably be expected to have a significant effect on the
market price or value of the Purchaser's common shares; and
(g) the Purchaser has not granted to any third party any
security interest in nor has the Purchaser assigned to any
third party any of the benefits to which the Purchaser is
entitled, in whole or in part, in respect of the royalty
payments referred to in Subsection 1.01(i).
ARTICLE 4 - COVENANTS
4.01 Taxes
The Purchaser does not assume and shall not be liable for
any taxes under the Income Tax Act (Canada) or any other taxes whatsoever
which may be or become payable by the Vendor including, without limiting the
generality of the foregoing, any taxes resulting from or arising as a
consequence of the sale by the Vendor to the Purchaser of the Shares herein
contemplated, and the Vendor shall indemnify and save harmless the Purchaser
from and against all such taxes. For purposes of Subsection 191(4) of the
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Income Tax Act (Canada), the specified amount in respect of each Share shall
be CAN$28.50.
4.02 Covenants of the Vendor
(1) The Vendor shall not purchase or dispose of common shares of
the Purchaser, other than the sale of the Shares hereunder, prior to the
first to occur of:
(a) December 31, 2000;
(b) a Change of Control Event; and
(c) the date on which the Purchaser issues additional common
shares with the result that more than 125 million common
shares of the Purchaser are issued and outstanding,
but this covenant shall be of no further effect if the Shares have not been
sold in accordance with the terms of this Agreement by the Closing Date.
(2) The Vendor shall ensure that the representations and
warranties of the Vendor set forth in Subsections 3.01(a) to (h) are true and
correct at the Time of Closing and that the conditions of closing for the
benefit of the Purchaser set forth in Section 5.01 over which the Vendor has
reasonable control have been performed or complied with by the Time of
Closing.
(3) Provided that, in the case of claims and demands made by
third parties, the Purchaser has given prompt notice to the Vendor of any
such claims and demands made upon it, the Vendor shall indemnify and save
harmless the Purchaser from and against all losses, damages or expenses
directly or indirectly suffered by the Purchaser resulting from any breach of
any covenant of the Vendor contained in this Agreement or from any inaccuracy
or misrepresentation in any representation or warranty set forth in Section
3.01.
(4) The covenants of the Vendor set forth in this Section 4.02
shall survive the completion of the sale and purchase of the Shares herein
provided for and, notwithstanding such completion, shall continue in full
force and effect for the benefit of the Purchaser in accordance with the
terms thereof.
4.03 Covenants of the Purchaser
(1) The Purchaser shall ensure that the representations and
warranties of the Purchaser set forth in Subsections 3.02(a) to (g) are true
and correct at the Time of Closing and that the conditions of closing for the
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benefit of the Vendor set forth in Section 5.02 over which the Purchaser has
reasonable control have been performed or complied with by the Time of
Closing.
(2) Provided that, in the case of claims and demands made by
third parties, the Vendor has given prompt notice to the Purchaser of any
such claims and demands made upon it, the Purchaser shall indemnify and save
harmless the Vendor from and against all losses, damages or expenses directly
or indirectly suffered by the Vendor resulting from any breach of any
covenant of the Purchaser contained in this Agreement or from any inaccuracy
or misrepresentation in any representation or warranty set forth in Section
3.02.
(3) The covenants of the Purchaser set forth in this Section
4.03 shall survive the completion of the sale and purchase of the Shares
herein provided for and, notwithstanding such completion, shall continue in
full force and effect for the benefit of the Vendor in accordance with the
terms thereof.
(4) The Purchaser shall promptly advise the Vendor upon the
Purchaser having reasonable grounds for believing that it will be unable to
pay the Note when due.
ARTICLE 5 - CONDITIONS
5.01 Conditions for the Benefit of the Purchaser
(1) The purchase by the Purchaser of the Shares is subject to
the following conditions which are for the exclusive benefit of the Purchaser
to be performed or complied with at or prior to the Time of Closing:
(a) the representations and warranties of the Vendor set forth
in Section 3.01 shall be true and correct at the Time of
Closing with the same force and effect as if made at and as
of such time;
(b) the Vendor shall have performed or complied with all of the
terms, covenants and conditions of this Agreement to be
performed or complied with by the Vendor at or prior to the
Time of Closing;
(c) the Purchaser shall have been furnished with such
certificates, affidavits or statutory declarations of the
Vendor or of officers of the Vendor as the Purchaser or the
Purchaser's counsel may reasonably think necessary in order
to establish that the terms, covenants and conditions
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contained in this Agreement to have been performed or
complied with by the Vendor at or prior to the Time of
Closing have been performed and complied with and that the
representations and warranties of the Vendor herein given
are true and correct at the Time of Closing;
(d) all necessary steps, proceedings and regulatory
notifications and approvals shall have been taken, given or
received to permit the Shares to be duly and regularly
transferred to the Purchaser, including the granting of
exemption orders from applicable securities law requirements
on terms acceptable to the Vendor's and the Purchaser's
respective counsel acting reasonably and all conditions
required under the exemption orders shall have been
satisfied in full;
(e) concurrently with the execution of this Agreement, the
Vendor shall have procured from Glaxo Wellcome plc and
delivered a letter to the Purchaser confirming Section
3.01(h) in respect of its own senior management and shall
have delivered to the Purchaser a letter dated as of the
Closing Date to the same effect as referred to in Section
3.01; and
(f) the shareholders of the Purchaser, excluding the Vendor,
shall have approved the purchase of the Shares as
contemplated hereby, by the affirmative vote of at least 50%
of the shares voted at a Special Meeting of Shareholders or
such higher or different approval margin as may be required
by securities regulators or law.
(2) In case any term or covenant of the Vendor or condition to
be performed or complied with for the benefit of the Purchaser at or prior to
the Time of Closing shall not have been performed or complied with at or
prior to the Time of Closing, the Purchaser may, without limiting any other
right that the Purchaser may have, rescind this Agreement or waive compliance
with any such term, covenant or condition in whole or in part on such terms
as may be agreed upon without prejudice to any of its rights of rescission in
the event of non-performance of any other term, covenant or condition in
whole or in part.
5.02 Conditions for the Benefit of the Vendor
(1) The sale by the Vendor of the Shares is subject to the
following conditions which are for the exclusive benefit of the Vendor to be
performed or complied with at or prior to the Time of Closing:
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(a) the representations and warranties of the Purchaser set
forth in Section 3.02 shall be true and correct at the Time
of Closing with the same force and effect as if made at and
as of such time;
(b) the Purchaser shall have performed or complied with all of
the terms, covenants and conditions of this Agreement to be
performed or complied with by the Purchaser at or prior to
the Time of Closing;
(c) the Vendor shall have been furnished with such certificates,
affidavits or statutory declarations of the Purchaser or of
officers of the Purchaser as the Vendor or the Vendor's
counsel may reasonably think necessary in order to establish
that the terms, covenants and conditions contained in this
Agreement to have been performed or complied with by the
Purchaser at or prior to the Time of Closing have been
performed and complied with and that the representations and
warranties of the Purchaser herein given are true and
correct at the Time of Closing; and
(d) all necessary steps, proceedings and regulatory
notifications and approvals shall have been taken given or
received to permit the Shares to be duly and regularly
transferred to the Purchaser including the granting of
exemption orders from applicable securities law requirements
on terms acceptable to the Vendor's and the Purchaser's
respective counsel acting reasonably and all conditions
required under the exemption orders shall have been
satisfied in full.
(2) In case any term or covenant of the Purchaser or condition
to be performed or complied with for the benefit of the Vendor at or prior to
the Time of Closing shall not have been performed or complied with at or
prior to the Time of Closing, the Vendor may, without limiting any other
right that the Vendor may have, rescind this agreement or waive compliance
with any such term, covenant or condition in whole or in part on such terms
as may be agreed upon without prejudice to any of its rights of rescission in
the event of non-performance of any other term, covenant or condition in
whole or in part.
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ARTICLE 6 - GENERAL
6.01 Further Assurances
Each of the Vendor and the Purchaser shall from time to time
execute and deliver all such further documents and instruments and do all
acts and things as the other party may, either before or after the Closing
Date, reasonably require to effectively carry out or better evidence or
perfect the full intent and meaning of this Agreement.
6.02 Time of the Essence
Time shall be of the essence of this Agreement.
6.03 Commissions
Each of the parties hereto shall indemnify and save harmless
the other party from and against any claims whatsoever for any commission or
other remuneration payable or alleged to be payable to any person based on
the engagement or alleged engagement by that party of any finder, agent or
other person in connection with the transaction contemplated hereunder.
6.04 Fees and Expenses
Each of the parties hereto shall pay their respective legal
and accounting costs and expenses incurred in connection with the
preparation, execution and delivery of this Agreement and all documents and
instruments executed pursuant hereto and any other costs and expenses
whatsoever and howsoever incurred.
6.05 Public Announcements
No public announcement or press release concerning the sale
and purchase of the Shares shall be made by the Vendor or the Purchaser prior
to obtaining final regulatory approval, or provisional regulatory approval on
a basis satisfactory to the Vendor acting reasonably, and thereafter no such
public announcement or press release shall be made without the joint approval
of the Vendor and the Purchaser as to the content thereof.
6.06 Benefit of the Agreement
This Agreement shall enure to the benefit of and be binding
upon the respective heirs, executors, administrators, successors and
permitted assigns of the parties hereto.
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6.07 Entire Agreement
This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and cancels and
supersedes any prior understandings and agreements between the parties hereto
with respect thereto. There are no representations, warranties, terms,
conditions, undertakings or collateral agreements, express, implied or
statutory, between the parties other than as expressly set forth or referred
to in this Agreement or will form part of the Closing arrangements.
6.08 Amendments and Waiver
No modification of or amendment to this Agreement shall be
valid or binding unless set forth in writing and duly executed by both of the
parties hereto and no waiver of any breach of any term or provision of this
Agreement shall be effective or binding unless made in writing and signed by
the party purporting to give the same and, unless otherwise provided, shall
be limited to the specific breach waived.
6.09 Assignments
This Agreement may not be assigned by the either party
hereto without the prior written consent of the other party.
6.10 Notices
Any demand, notice or other communication to be given in
connection with this Agreement shall be given in writing and shall be given
by personal delivery or by electronic means of communication addressed to the
recipient as follows:
To the Vendor:
Glaxo Wellcome Inc.
7333 Mississauga Road North
Mississauga, Ontario
L5N 6L4
Attention: Paul Lucas
Facsimile: 905-819-3097
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To the Purchaser:
BioChem Pharma Inc.
275 Boul-Armand-Frappier
Laval, Quebec
Canada
H7V 4A7
Attention: Dr. Francesco Bellini
Facsimile: 450-978-7899
or to such other address, individual or electronic communication number as
may be designated by notice given by either party to the other. Any demand,
notice or other communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual delivery thereof
and, if given by electronic communication, on the day of transmittal thereof
if given during the normal business hours of the recipient and on the
Business Day during which such normal business hours next occur if not given
during such hours on any day.
6.11 Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
6.12 Attornment
For the purpose of all legal proceedings this Agreement
shall be deemed to have been performed in the Province of Ontario and the
courts of the Province of Ontario shall have jurisdiction to entertain any
action arising under this Agreement. The Vendor and the Purchaser each hereby
attorns to the jurisdiction of the courts of the Province of Ontario.
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IN WITNESS WHEREOF the parties have executed this Agreement.
GLAXO WELLCOME INC.
By: /s/ Karin Huber-Levy
--------------------------------------
BIOCHEM PHARMA INC.
By: /s/Dr. Francesco Bellini
-------------------------------------
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SCHEDULE A
PROMISSORY NOTE
Amount: US$80,000,000 Laval, Quebec
FOR VALUE RECEIVED, the undersigned, BIOCHEM PHARMA INC., a corporation
incorporated under the laws of Canada (the "Corporation"), hereby promises to
pay to or to the order of Glaxo Wellcome Inc. ("Glaxo") on January , 2001 by
wire transfer to an account to be designated in writing by Glaxo, or by such
other means as may be designated by Glaxo from time to time, the sum of
EIGHTY MILLION DOLLARS (US $80,000,000) in lawful money of the United States
of America in immediately available funds, with interest thereon calculated
and payable in the same currency at a rate of five percent (5%) per annum,
compounded annually from the date hereof, as well after as before maturity
(whether at scheduled maturity, by acceleration or otherwise) and both before
and after default and judgment. Interest shall be calculated using the
nominal, and not the effective, rate method of calculation on the basis of a
calendar year, until payment thereof.
Terms used and not otherwise defined in this Promissory Note are used
herein with the meanings ascribed thereto in a share purchase agreement dated
June 11, 1999 between the Corporation and Glaxo as the same may be amended,
modified or restated from time to time in accordance with the terms thereof
("Share Purchase Agreement").
Upon the occurrence of an Acceleration Event the principal of, and
interest on, this Promissory Note shall forthwith become due and payable by
the Corporation without presentment, protest, notice of dishonour or any
other notice whatsoever, all of which are hereby expressly waived by the
Corporation.
The indebtedness evidenced hereby may be prepaid in whole or in part,
together with interest accrued thereon to the date of prepayment, at any time
and from time to time, without penalty upon five (5) Business Days' prior
written notice to Glaxo. Any such prepayments shall be credited first to any
accrued and unpaid interest and then to the outstanding principal balance
hereof.
The Corporation acknowledges and agrees that Glaxo shall have the
benefit of the Acknowledgment and Direction dated July , 1999 in connection
with the indebtedness of the Corporation evidenced by the Promissory Note.
Time is of the essence in this Note. All payments hereunder will be
made without days of grace. No failure to accelerate the indebtedness
evidenced hereby, acceptance of past-due instalment or other indulgences
granted from time to time, shall be construed as a novation of this Note or
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as a waiver of such right of acceleration or of the right of Glaxo to insist
upon strict compliance with the terms of this Note or to prevent the exercise
of such right of acceleration or any other right granted hereunder or by
applicable laws. No extension of the time for payment of the indebtedness
evidenced hereby shall operate to release, discharge, modify, change or
affect the original liability of the Corporation hereunder or that of any
other person now or hereafter liable for payment of the indebtedness
evidenced hereby, in whole or in part, unless the Lender agrees otherwise in
writing.
The Corporation shall pay all principal and interest without set-off or
counterclaim and without deduction or withholding for or on account of any
present or future taxes, levies, duties, imposts or other charges of any
kind.
The Corporation agrees to pay all costs and expenses (including all
reasonable legal costs on a solicitor and client basis and disbursements)
paid or incurred by the Lender in the interpretation of this Note, in
collecting all amounts payable hereunder after the same shall become due and
payable or in exercising any rights under any security granted in connection
with this Note. All such costs and expenses shall be paid forthwith upon
demand by the Lender.
All notices and other communications required or permitted to be given
under this Promissory Note shall be given in accordance with the Share
Purchase Agreement.
This Note will be governed by and construed in accordance with the laws
of the Province of Ontario and the federal laws of Canada applicable therein.
DATED as of July , 1999.
BIOCHEM PHARMA INC.
Per:
------------------------------
Dr. Francesco Bellini
Chief Executive Officer
I have authority to bind the Corporation.
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SCHEDULE B
ACKNOWLEDGMENT AND DIRECTION
THIS ACKNOWLEDGMENT AND DIRECTION made as of July , 1999, among GLAXO
WELLCOME INC., a corporation amalgamated and continued under the laws of the
Province of Ontario (hereafter referred to as the "Vendor"), BIOCHEM PHARMA
INC., a corporation incorporated under the laws of Canada (hereafter referred
to as the "Purchaser"), TANAUD INTERNATIONAL B.V., a corporation incorporated
under the laws of the Netherlands ("TIB"), TANAUD IRELAND INC., a corporation
formed under the laws of Ireland ("TII"), TANAUD HOLDINGS (BARBADOS) LIMITED,
a corporation incorporated under the laws of Barbados ("THB"), GLAXO WELLCOME
INC., a corporation incorporated under the laws of the State of North
Carolina ("GWUS"), GLAXO GROUP LIMITED, a company incorporated under the laws
of England ("Group") and the other affiliates of the Vendor from time to time
parties hereto as licensees (Group, the Vendor and each such affiliate each a
"Licensee" and, together the "Licensees") and the other affiliates of the
Purchaser from time to time parties hereto.
WHEREAS the Vendor and the Purchaser are parties to a share purchase
agreement made as of June 11, 1999, as the same may be amended, modified or
restated from time to time in accordance with the terms thereof ("Share
Purchase Agreement");
AND WHEREAS the Purchaser is obligated to the Vendor in the principal
amount of US$80,000,000 together with interest thereon as evidenced by a
promissory note of the Purchaser dated July , 1999 ("Promissory Note");
AND WHEREAS the parties hereto have entered into a revised and restated
master license agreement made November 20, 1995, as such license agreement
may be amended, modified or restated from time to time in accordance with the
terms thereof (the "License Agreement") which obligates certain of the
Licensees to make royalty payments to TIB and TII from time to time as more
particularly set out in the License Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
ARTICLE 1 - INTERPRETATION
1.01 Definitions
(a) In this Agreement, unless something in the subject matter or
content is inconsistent therewith, the terms used and not
otherwise defined in this Agreement are used with the
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respective meanings ascribed thereto in the Share Purchase
Agreement.
(b) "Obligations" means the principal of, interest on, and all
other amounts payable under the Promissory Note.
1.02 Headings
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and shall not
affect the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof
and include any agreement supplemental hereto. Unless something in the
subject matter or context is inconsistent therewith, references herein to
Articles and Sections are to Articles and Sections of this Agreement.
1.03 Extended Meanings
In this Agreement words importing the singular number only shall include
the plural and vice versa, words importing the masculine gender shall include
the feminine and neuter genders and vice versa and words importing persons
shall include individuals, partnerships, associations, trusts, unincorporated
organizations and corporations.
1.04 Schedule
The following Schedule is annexed hereto and incorporated by reference and
deemed to be part hereto.
Schedule A - License Agreements
ARTICLE 2 - OPERATIVE PROVISIONS
2.01 Assignment of Royalties
Notwithstanding any term or provision of any License Agreement to the
contrary, each License Agreement is hereby amended to require each Licensee
to pay to the Vendor, and each Licensee is hereby irrevocably authorized and
directed by the Purchaser, TIB, TII and the affiliates of the Purchaser from
time to time parties hereto to pay to the Vendor, 50% of all royalty payments
due to be paid by the relevant Licensee to the Purchaser, TIB, TII or such
affiliates under each License Agreement after the maturity of the Promissory
Note or after the occurrence of an Acceleration Event, in each case until the
Vendor shall have received in aggregate an amount equal to the unpaid
Obligations and this Agreement shall be good and sufficient authority for
each Licensee so doing. Concurrently with receipt of each amount paid to it
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pursuant to this Section 2.01, the Vendor shall give written notice to the
Purchaser of such receipt and of the amount of the unpaid Obligations after
such receipt. Each payment made by a Licensee pursuant to this Section shall
satisfy and discharge the obligation of such Licensee under each License
Agreement in a corresponding amount. Each Licensee acknowledges receipt of
notice of this Agreement.
2.02 Amendment of License Agreements
(a) If for any reason Section 2.01 is not effective to cause the
Vendor to receive payments from Licensees in an amount equal
to the unpaid Obligations, each License Agreement is hereby
amended to reduce the royalty that, but for this Section
would have been payable by each Licensee under such License
Agreement, by 50% after the maturity of the Promissory Note
or after the occurrence of an Acceleration Event, in each
case until the aggregate amount of such reduced royalties
equals the unpaid Obligations.
(b) Each license agreement between the Purchaser, the Vendor
and/or their respective affiliates entered into after the
date hereof, shall be subject to this Section and shall
become a "License Agreement" for the purposes of this
Agreement.
2.03 Discharge Pro Tanto
Each payment received by the Vendor from a Licensee pursuant to Section
2.01 and/or each amount which a royalty payment is reduced by reason of
Section 2.02 shall reduce the unpaid Obligations pro tanto.
2.04 Amendment to Schedule A
Schedule A to this Agreement shall be amended automatically to add
thereto each license agreement entered into between the Vendor, the Purchaser
and/or their respective affiliates after the date hereof. Each Licensee and
each affiliate of the Purchaser party to each such license agreement shall be
deemed to be a party to this Agreement forthwith upon the execution and
delivery of such license agreement. Despite the foregoing,
(a) the Vendor may from time to time send to the Purchaser an
amended Schedule A setting out the Licensees, the names of
the affiliates of the Purchaser party thereto and the
particulars of such license agreements as at the date of
such Schedule. Such Schedule A shall replace the preceding
Schedule A to this Agreement and shall be deemed to be
accurate, absent manifest error; and
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(b) each Licensee and each affiliate of the Purchaser identified
in such new Schedule A may signify its adherence to this
Agreement by executing and delivering a counterpart of this
Agreement.
ARTICLE 3 - REPRESENTATIONS, WARRANTIES AND COVENANTS
3.01 Representations, Warranties and Covenants
The Purchaser represents, warrants to and covenants with the Vendor
that:
(a) it, or its affiliates parties hereto, are the legal and
equitable owner of all right, title and interest under each
License Agreement free and clear of all liens, charges,
security interests, encumbrances and any other rights of
others;
(b) neither it, nor any of its affiliates parties hereto, has
sold, transferred or assigned any of its right, title or
interest under any License Agreement (including without
limitation, the right to receive royalties thereunder), to
any person;
(c) it, and its affiliates parties hereto, have good and
sufficient power, authority and right to enter into and
deliver this Agreement;
(d) this Agreement has been duly executed and delivered by the
Purchaser and its affiliates parties hereto and constitutes
a legal, valid and binding obligation of the Purchaser and
such affiliates enforceable against the Purchaser and such
affiliates in accordance with its terms except to the extent
that enforcement may be restricted by any applicable
bankruptcy, insolvency, moratorium, reorganization,
winding-up or other similar laws affecting the enforcement
of creditors' rights generally and the fact that equitable
remedies, such as injunctive relief and specific
performance, are in the discretion of the court;
(e) the execution and delivery of this Agreement and the
performance by the Purchaser and its affiliates parties
hereto of their obligations hereunder (i) does not violate
or result in the breach of, and with the giving of notice,
lapse of time or other condition will not result in the
breach of, any agreement to which the Purchaser or any such
affiliate is a party or by which the Purchaser or any such
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affiliate is bound and (ii) does not, and will not, result
in the imposition of any lien, charge, security interest,
encumbrance or any other rights of others on the
undertaking, property or assets of the Purchaser or any such
affiliate or any part thereof;
(f) for the purposes of perfection of the interest of the Vendor
constituted by this Agreement, the domicile, chief executive
office and principal place of business of the Purchaser, TIB
and TLLC are (i) 275 Boul-Armand-Frappier, Laval, Quebec,
H7V 4A7, (ii) Fred. Roeskestraat 123, First Floor, 1076 EE
Amsterdam, The Netherlands and (iii) Shannon Airport House,
Shannon, Co. Clare, Ireland, respectively; and
(g) neither the Purchaser, TIB nor TII will change its name,
domicile, chief executive office or principal place of
business without 15 Business Days' prior written notice to
the Vendor.
ARTICLE 4 - GENERAL
4.01 Further Assurances
The Purchaser shall from time to time execute and deliver all such
further documents, financing statements and instruments and do all acts and
things as the Vendor may reasonably require to effectively carry out or
better evidence or perfect the full interest and meaning of this Agreement.
4.02 Perfection of Interest of Vendor
The Purchaser, TIB and TII acknowledge that the Vendor may from time to
time make such filings and registrations as it may deem necessary or
desirable to perfect its interests constituted by this Agreement. The
Purchaser, TIB and TII acknowledge receipt of an executed copy of this
Agreement.
4.03 Time of the Essence
Time shall be of the essence of this Agreement.
4.04 Benefit of this Agreement
This Agreement shall enure to the benefit of and be binding upon the
successors and assigns of the parties thereto.
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4.05 Amendment and Waiver
Except as provided in Section 2.04 hereof, no modification of or an
amendment to this Agreement shall be valid or binding unless set forth in
writing and duly executed by the parties hereto and no waiver of any breach
of any term or provision of this Agreement shall be effective or binding
unless made in writing and signed by the party purporting to give the same
and, unless otherwise provided, shall be limited to the specific breach
waived.
4.06 Notices
Any demand, notice or other communication to be given in connection with
this Agreement shall be given in accordance with Section 6.10 of the Share
Purchase Agreement.
4.07 Counterparts and Facsimile
This Agreement may be executed in any number of counterparts, each of
which when executed and delivered shall be deemed to be an original, and such
counterparts together shall constitute one and the same agreement. For the
purposes of this Section, the delivery of a facsimile copy of an executed
counterpart of this Agreement shall be deemed to be valid execution and
delivery of this Agreement, but the party delivering a facsimile copy shall
deliver an original copy of this Agreement as soon as possible after
delivering the facsimile copy.
4.08 Governing Law
This Agreement shall be governed by and constituted in accordance with
the laws of the Province of Ontario and the laws of Canada applicable
therein.
4.09 Attornment
For the purpose of all legal proceedings this Agreement shall be deemed
to have been performed in the Province of Ontario and the courts of the
Province of Ontario shall have jurisdiction to entertain any action arising
under this Agreement. Each of the parties hereto attorns to the jurisdiction
of the courts of the Province of Ontario.
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IN WITNESS WHEREOF the parties have executed this Agreement.
BIOCHEM PHARMA INC.
By: (c/s)
------------------------------
Name:
Title:
GLAXO WELLCOME INC. (Canada)
By: (c/s)
------------------------------
Name:
Title:
TANAUD INTERNATIONAL B.V.
By: (c/s)
------------------------------
Name:
Title:
TANAUD IRELAND INC.
By: (c/s)
------------------------------
Name:
Title:
TANAUD HOLDINGS (BARBADOS) LIMITED
By: (c/s)
------------------------------
Name:
Title:
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GLAXO WELLCOME INC. (U.S.)
By: (c/s)
------------------------------
Name:
Title:
GLAXO GROUP LIMITED
By: (c/s)
------------------------------
Name:
Title:
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SCHEDULE A
LICENSE AGREEMENT
As at July , 1999
1. Revised and Restated Master Licence Agreement made November 20, 1995
between Group, the Vendor, GWUS, the Purchaser, THB, TIB, TII, as the
same may be amended, modified or restated from time to time in
accordance with its terms.
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EXHIBIT 3 TO SCHEDULE 13D
SOURCE: Glaxo Wellcome plc
DATE: 11 June, 1999
SUBJECT: News -- Glaxo Wellcome Share Purchase Agreement with BioChem Pharma
Inc.
Glaxo Wellcome plc announces an agreement in principle with BioChem
Pharma Inc., whereby BioChem Pharma will buy back 8 million of its
own shares from Glaxo Wellcome's Canadian subsidiary, Glaxo Wellcome
Inc., at a price of US$20 per share. Payment for these shares will
be made in two stages, US$80 million on completion and the remaining
US$80 million in 18 months time. These shares will be cancelled by
BioChem Pharma. As a result of this transaction Glaxo Wellcome's
holding in BioChem Pharma will decrease from 12.2. per cent to 5.3
per cent of its reduced outstanding share capital. Glaxo Wellcome
has also agreed not to dispose of its remaining holding before 31
December 2000. Completion of the transaction is conditional on the
approval of the Canadian regulatory authorities and BioChem Pharma's
shareholders, and is expected to take place in the second half of
1999.
Commenting on the transaction, Glaxo Wellcome's Finance Director,
John Coombe, said:-
"This sale reflects Glaxo Wellcome's philosophy towards the
investments it has acquired in companies as a consequence of entering
into research or licensing collaborations with them. Our practice is
to realise these investments over time and reinvest the proceeds in
our core business. This divestment represents a logical step in a
successful relationship, while still enabling Glaxo Wellcome to
benefit from holding a significant financial interest in BioChem
Pharma as it matures into an integrated biopharmaceutical company."
Dr Francesco Bellini, Chief Executive Officer of BioChem Pharma Inc.
commented:-
"We are very pleased that this share buy back has been agreed.
Everyone benefits - BioChem has greater independence to pursue its
business strategy, Glaxo Wellcome sees a return on its long-held
investment and the orderly buy back not only removes a perceived
share overhang, but is accretive to future BioChem earnings per
share."
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<PAGE>
Glaxo Wellcome's collaboration with BioChem Pharma covers the HIV
treatments Epivir and Combivir, which together had sales in 1998 of
over (Pound Sterling)600 million, as well as Zeffix (lamivudine) for
the treatment of Hepatitis B, which has recently been launched in its
first markets. The success to date of these products, and their
future potential, reflects the benefits of the collaboration between
BioChem Pharma and Glaxo Wellcome, which commenced in 1990.
Glaxo Wellcome is a research-based company committed to fighting
disease by bringing innovative medicines and services to patients
throughout the world and to healthcare providers who serve them.
Epivir, Combivir and Zeffix are trademarks of the Glaxo Wellcome
group of companies.
S J Cowden
Secretary
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<PAGE>
EXHIBIT 4 TO SCHEDULE 13D
SOURCE: BioChem Pharma Inc.
DATE: June 11, 1999
SUBJECT: News -- For Immediate Release
BioChem Pharma Announces Agreement in Principle to Purchase 8 Million
BioChem Common Shares from Glaxo Wellcome Inc.
Laval, Quebec, Canada -- BioChem Pharma Inc. (NASDAQ: BCHE; Montreal
Exchange and The Toronto Stock Exchange: BCHE) announced today that
it has reached an agreement in principle with Glaxo Wellcome Inc.
whereby BioChem will purchase for cancellation 8 million BioChem
common shares held by Glaxo Wellcome at a price of U.S.$20 per share.
The agreement is subject to regulatory approval and a majority
approval of BioChem shareholders, excluding Glaxo Wellcome, a related
party to the transaction. The mailing of an information circular
explaining the transaction is expected to start the week of 14 June
1999 and a special meeting of shareholders will be convened on or
about 19 July 1999.
Payment for these shares will be made in two stages, U.S.$80 million
on completion and the remaining U.S.$80 million in 18 months time.
These shares will be cancelled. As a result of this transaction,
Glaxo Wellcome's holding in BioChem Pharma will decrease from 12.2
per cent to 5.3 per cent of the Company's reduced outstanding share
capital.
This transaction does not change the Company's publicly held share
float. Glaxo Wellcome has agreed not to dispose of its remaining
holding before 31 December 2000.
Dr. Francesco Bellini, Chief Executive Officer, BioChem Pharma Inc.
said, "We are very pleased that this share buy-back has been agreed.
Everyone benefits -- BioChem has greater independence to pursue its
business strategy, Glaxo Wellcome sees a return on its long-held
investment and the orderly buy-back not only removes a perceived
share overhang, but is accretive to future BioChem earnings per
share."
"This sale reflects Glaxo Wellcome's philosophy towards the
investments it has acquired in companies as a consequence of entering
into research or licensing collaborations with them. Our practice is
to realise these investments over time and reinvest the proceeds in
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<PAGE>
our core business. This divestment represents a logical step in a
successful relationship, while still enabling Glaxo Wellcome to
benefit from holding a significant financial interest in BioChem
Pharma as it matures into an integrated biopharmaceutical company,"
commented John Coombe, Glaxo Wellcome's Finance Director.
BioChem Pharma is an international biopharmaceutical company
dedicated to the research, development and commercialization of
innovative products for the prevention and treatment of human
diseases with a focus in the anti-infective and anticancer areas. The
Company lists its common shares on the Montreal Exchange and The
Toronto Stock Exchange (BCH) and on the NASDAQ National Market
(BCHE).
This press release contains forward-looking statements, which reflect
the Corporation's current expectation regarding future events. The
forward-looking statements involve risks and uncertainties. Actual
events could differ materially from those projected herein and depend
on a number of factors. Investors should consult the Corporation's
ongoing quarterly filings, annual reports and 40-F filings for
additional information on risks and uncertainties relating to these
forward-looking statements. The reader is cautioned not to rely on
these forward-looking statements. The Corporation disclaims any
obligation to update these forward-looking statements.
FOR ADDITIONAL INFORMATION:
Christine Lennon (investors) (450) 978-7771
Michele Roy (media) (450) 978-7938
Corporate Communications
BioChem Pharma Inc.
E-mail: [email protected]
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