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EXHIBIT 99.1
GLAXO WELLCOME INC.
as Vendor
and
BIOCHEM PHARMA INC.
as Purchaser
SHARE PURCHASE AGREEMENT
relating to
CLINICHEM DEVELOPMENT INC.
JULY 27, 2000
STIKEMAN ELLIOTT
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TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1
PURCHASE AND SALE AND OPTION
Section 1.1 Purchase and Sale. 1
Section 1.2 Purchase Price. 1
Section 1.3 Closing. 2
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Section 2.1 Vendor's Representations and Warranties. 2
Section 2.2 Purchaser's Representations and Warranties. 2
ARTICLE 3
COVENANTS
Section 3.1 Taxes. 3
Section 3.2 Covenants of the Vendor. 3
Section 3.3 Covenants of the Purchaser. 3
ARTICLE 4
SURVIVAL
Section 4.1 Survival. 4
ARTICLE 5
CONDITIONS OF CLOSING
Section 5.1 Conditions for the Benefit of the Purchaser. 4
Section 5.2 Conditions for the Benefit of the Vendor. 5
ARTICLE 6
MISCELLANEOUS
Section 6.1 Notices. 6
Section 6.2 Time of the Essence. 7
Section 6.3 Announcements. 7
Section 6.4 Third Party Beneficiaries. 7
Section 6.5 Expenses. 8
Section 6.6 Amendments. 8
Section 6.7 Waiver. 8
Section 6.8 Entire Agreement. 8
Section 6.9 Further Assurances. 8
Section 6.10 Successors and Assigns. 8
Section 6.11 Severability. 9
Section 6.12 Governing Law. 9
Section 6.13 Counterparts. 9
</TABLE>
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SHARE PURCHASE AGREEMENT
Share Purchase Agreement dated July 27, 2000, between Glaxo Wellcome
Inc. (the "VENDOR") and BioChem Pharma Inc. (the "PURCHASER").
RECITALS:
(a) The Vendor is the registered and beneficial owner of 396,274
issued and outstanding Class A common shares (the "PURCHASED
SHARES") in the capital of CliniChem Development Inc.
("CLINICHEM"); and
(b) the Vendor wishes to sell and the Purchaser wishes to purchase
all the Purchased Shares upon and subject to the terms and
conditions of this Agreement.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the parties agree
as follows:
ARTICLE 1
PURCHASE AND SALE AND OPTION
SECTION 1.1 PURCHASE AND SALE.
Subject to the terms and conditions of the Agreement, the Vendor agrees
to sell, assign and transfer to the Purchaser and the Purchaser agrees to
purchase from the Vendor on the Closing Date, the Purchased Shares.
SECTION 1.2 PURCHASE PRICE.
The purchase price (the "PURCHASE PRICE") payable by the Purchaser to
the Vendor for the Purchased Shares shall be US$3,816,119. The Purchase Price
shall be paid and satisfied in immediately available funds by wire transfers to
the following account, to be delivered by the Purchaser to the Vendor on the
Closing Date (as defined below) against delivery to the Purchaser of a share
certificate or certificates evidencing the Purchased Shares duly registered in
the name of the Purchaser or a nominee to be designated by the Purchaser by
09:00 a.m. (Toronto time) on the day before the Closing Date:
Bank of America NT & SA
One World Trade Center - 10th Floor
New York City, New York 10048-1191
ABA No 026009593
For account of Canadian Imperial Bank of Commerce, Main Branch,
Toronto, Canada, A/C No 6550-8-26157
For account of Glaxo Wellcome Inc., A/C No 02-95418, Transit No 00002
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SECTION 1.3 CLOSING.
The completion of the transaction of purchase and sale contemplated by
this Agreement (the "CLOSING") shall take place at the offices of Stikeman
Elliott, Suite 5300, Commerce Court West, Toronto, Ontario, at 10:00 a.m.
(Toronto time) on July 28, 2000 or another date during the month of July (in no
event after July 31, 2000) to be agreed upon in writing by the parties (the
"CLOSING DATE").
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 VENDOR'S REPRESENTATIONS AND WARRANTIES.
The Vendor represents and warrants as follows to the Purchaser at the
date hereof and at the Closing Date and acknowledges that the Purchaser is
relying upon such covenants, representations and warranties in connection with
the purchase by the Purchaser of the Purchased Shares:
(a) INCORPORATION AND AUTHORITY. The Vendor is a corporation
incorporated, organised and existing under the laws of the
Province of Ontario and has the corporate power to own and
operate its property, carry on its business and enter into and
perform its obligations under this Agreement;
(b) PURCHASED SHARES. The Purchased Shares are owned by the Vendor
as the registered and beneficial owner, free and clear of all
liens, charges, encumbrances and any other rights of others;
(c) EXECUTION AND BINDING OBLIGATION. This Agreement has been duly
executed and delivered by the Vendor and constitutes a legal,
valid and binding obligation of the Vendor enforceable against
it in accordance with its terms;
(d) NO OTHER AGREEMENTS TO PURCHASE. Except for the Purchaser's
rights under this Agreement and as holder of the issued and
outstanding Class B common shares of CliniChem, no Person has
any written or oral agreement, option or warrant or any right
or privilege (whether by law, pre-emptive or contractual)
capable of becoming such for the purchase or acquisition from
the Vendor of any of the Purchased Shares; and
(e) RESIDENCE. The Vendor is a resident of Canada for the purposes
of the Income Tax Act (Canada).
SECTION 2.2 PURCHASER'S REPRESENTATIONS AND WARRANTIES.
The Purchaser hereby represents and warrants to the Vendor at the date
hereof and at the Closing Date and acknowledges that the Vendor are relying on
such covenants, representations and warranties in connection with the purchase
by the Purchaser of the Purchased Shares:
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(a) INCORPORATION AND AUTHORITY. The Purchaser is a corporation
incorporated, organised and existing under the laws of Canada
and has the corporate power to own and operate its property,
carry on its business and enter into and perform its
obligation under this Agreement;
(b) EXECUTION AND BINDING OBLIGATION. This Agreement has been duly
executed and delivered by the Purchaser and constitutes a
legal, valid and binding obligation of the Purchaser
enforceable against it in accordance with its terms;
(c) MATERIAL DISCLOSURE. The senior management of the Purchaser is
not aware of any material non-public information concerning
CliniChem, its business, affairs or securities, except for
information concerning this transaction; and
(d) STATUS OF PURCHASER. The Purchaser is acquiring the Purchased
Shares for investment for its own account, not as a nominee or
agent, and not with a view to the sale or distribution of all
or any part thereof absent the registration or qualification
of such Purchased Shares or pursuant to a valid exemption from
such registration or qualification requirements, and the
Purchaser has no present intention of selling, granting
participation in, or otherwise distributing the same.
ARTICLE 3
COVENANTS
SECTION 3.1 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 Purchased Shares, and the Vendor shall
indemnify and save harmless the Purchaser from and against all such taxes.
SECTION 3.2 COVENANTS OF THE VENDOR.
The Vendor shall ensure that the representations and warranties of the
Vendor set forth in Section 2.1 are true and correct as of the Closing Date and
that the conditions of closing for the benefit of the Purchaser set forth in
Section 5.1 over which the Vendor has reasonable control have been performed or
complied with on or before the Closing Date.
SECTION 3.3 COVENANTS OF THE PURCHASER.
The Purchaser shall ensure that the representations and warranties of
the Purchaser set forth in Section 2.2 are true and correct as of the Closing
Date and that the conditions of closing for the benefit of the Vendor set forth
in Section 5.2 over which the Purchaser has reasonable control have been
performed or complied with on or before the Closing Date.
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ARTICLE 4
SURVIVAL
SECTION 4.1 SURVIVAL.
The respective covenants, representations and warranties of the Vendor
and Purchaser contained in this Agreement and in any certificates or documents
delivered pursuant to or in connection with the transactions herein provided for
shall survive the closing of the purchase and sale of the Purchased Shares
herein provided for and, notwithstanding such Closing, and regardless of any
investigation by or on behalf of the Purchaser or the Vendor respectively with
respect thereto, shall continue in full force and effect for the benefit of the
Purchaser and the Vendor, respectively.
ARTICLE 5
CONDITIONS OF CLOSING
SECTION 5.1 CONDITIONS FOR THE BENEFIT OF THE PURCHASER.
(1) The purchase and sale of the Purchased Shares is subject to the
following conditions to be fulfilled or performed, on or before the
Closing Date, which conditions are for the exclusive benefit of the
Purchaser and may be waived, in whole or in part, by the Purchaser in
its sole discretion:
(a) The covenants, representations and warranties of the Vendor as
set forth in Section 2.1 shall be true and correct as of the
Closing Date with the same force and effect as if such
covenants, representations and warranties had been made on and
as of such date;
(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 on or prior to the
Closing Date;
(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 contained
in this Agreement to have been performed or complied with by
the Vendor on or prior to the Closing Date have been performed
and complied with and that the representations and warranties
of the Vendor herein given are true and correct as at the
Closing Date;
(d) All necessary steps, proceedings and regulatory notifications
and approvals shall have been taken, given or received to
permit the Purchased 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 and the Purchaser, acting
reasonably, and all
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conditions required under the exemption orders shall have been
satisfied in full;
(e) There shall not have occurred any catastrophe of national or
international effect, or any event which seriously adversely
affects, or will seriously adversely affect, the financial
markets in Canada, the United States or Europe; and
(f) The Vendor shall deliver or cause to be delivered to the
Purchaser share certificates representing the Purchased Shares
duly registered in the name of the Purchaser or a nominee to
be designated by the Purchaser by 09:00 a.m. (Toronto time) on
the day before the Closing Date.
(2) In case any term or covenant of the Vendor or condition to be performed
or complied with for the benefit of the Purchaser on or prior to the
Closing Date shall not have been performed or complied with on or prior
to the Closing Date, 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.
SECTION 5.2 CONDITIONS FOR THE BENEFIT OF THE VENDOR.
(1) The purchase and sale of the Purchased Shares is subject to the
following conditions to be fulfilled or performed, on or before the
Closing Date which conditions are for the exclusive benefit of the
Vendor and may be waived, in whole or in part, by the Vendor in its
sole discretion:
(a) The covenants, representations and warranties of the
Purchaser, as set forth in Section 2.2, shall be true and
correct as of the Closing Date with the same force and effect
as if such covenants, representations and warranties had been
made on and as of such date;
(b) The Purchaser shall have performed or complied with all of the
terms, covenants an conditions of this Agreement to be
performed or complied with by the Purchaser on or prior to the
Closing Date;
(c) The Vendor shall have been furnished with such certificates,
affidavits or statutory declaration of the Purchaser or of
officers of the Purchaser as the Vendor or 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 on or
prior to the Closing Date have been performed and complied
with and that the representations and warranties of the
Purchaser herein given are true and correct on the Closing
Date; and
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(d) All necessary steps, proceedings and regulatory notifications
and approvals shall have been taken given or received to
permit the Purchased 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 and the Purchaser, 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 on or prior to
the Closing Date shall not have been performed or complied with on or
prior to the Closing Date, 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.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 NOTICES.
Any notice, direction or other communication given under this Agreement
shall be in writing and given by delivering it personally or by courier or by
sending it by facsimile or other similar form of recorded communication
addressed:
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(a) to the Purchaser at:
275 Boul. Armand-Frappier
Laval, Quebec
H7V 4A7
Attention: Fred Andrew, Chief Financial Officer
Telephone: 450 978 7705
Facsimile: 450 978 7739
(b) to the Vendor at:
7333 Mississauga Road North
Mississauga, Ontario
L5N 6L4
Attention: Paul Lucas
Facsimile: 905 819 3097
Any such communication shall be deemed to have been validly and effectively
given (i) if personally delivered or delivered by courier, on the date of such
delivery if such date is a business day and such delivery was made prior to 4:00
p.m. (Toronto time) and otherwise on the next business day, or (ii) if
transmitted by facsimile or similar means of recorded communication on the
business day following the date of transmission. Any party may change its
address for service from time to time by notice given in accordance with the
foregoing and any subsequent notice shall be sent to such party at its changed
address.
SECTION 6.2 TIME OF THE ESSENCE.
Time shall be of the essence of this Agreement.
SECTION 6.3 ANNOUNCEMENTS.
Any press release or public statement or announcement (a "PUBLIC
STATEMENT") with respect to the transaction contemplated in this Agreement shall
be made only with the prior written consent and joint approval of the Vendor and
the Purchaser unless such Public Statement is required by law or by any stock
exchange or market, in which case the party required to make the Public
Statement shall use its best efforts to obtain the approval of the other party
as to the form, nature and extent of the disclosure.
SECTION 6.4 THIRD PARTY BENEFICIARIES.
The Vendor and the Purchaser intend that this Agreement shall not
benefit or create any right or cause of action in, or on behalf of, any person
other than the parties to this Agreement, and no person, other than the parties
to this Agreement shall be entitled to rely on the provisions of this Agreement
in any action, suit, proceeding, hearing or other forum.
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SECTION 6.5 EXPENSES.
All costs and expenses (including the fees and disbursements of legal
counsel, investment advisers and accountants) incurred by the Vendor in
connection with this Agreement and the transactions contemplated therein shall
be paid by the Vendor. All costs and expenses (including the fees and
disbursements of legal counsel, investment advisers and accountants) incurred by
the Purchaser in connection with this Agreement and the transactions
contemplated therein shall be paid by the Vendor pursuant to and in accordance
with the terms and conditions of a letter of agreement entered into by and
between the Vendor and the Purchaser on June 29, 2000.
SECTION 6.6 AMENDMENTS.
Subject to Section 6.7(1), this Agreement may only be amended,
supplemented or otherwise modified by written agreement signed by the Vendor and
the Purchaser.
SECTION 6.7 WAIVER.
(1) No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar);
nor shall such waiver be binding unless executed in writing by the
party to be bound by the waiver.
(2) No failure on the part of the Vendor or the Purchaser to exercise, and
no delay in exercising, any right under this Agreement shall operate as
a waiver of such right; nor shall any single or partial exercise of any
such right preclude any other or further exercise of such right or the
exercise of any other right.
SECTION 6.8 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties with respect thereto. There are no representations, warranties,
covenants, conditions or other agreements, express or implied, collateral,
statutory or otherwise, between the parties in connection with the subject
matter of this Agreement except as specifically set forth herein and therein,
and neither the Vendor nor the Purchaser has relied on nor is relying on any
other information, discussion or understanding in entering into and completing
the transactions contemplated in this Agreement.
SECTION 6.9 FURTHER ASSURANCES.
The parties shall from time to time execute and deliver all such
further documents and instruments and do all acts and things as either may
reasonably require to effectively carry out or better evidence the full intent
and meaning of this Agreement.
SECTION 6.10 SUCCESSORS AND ASSIGNS.
(1) This Agreement shall become effective when executed by the Vendor and
the Purchaser and after that time shall be binding upon and enure to
the benefit of the Vendor, the Purchaser and their respective
successors and permitted assigns.
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(2) This Agreement or any of the rights or obligations under this Agreement
may only be assigned by either party with the consent of the other
party, not to be unreasonably withheld or delayed.
SECTION 6.11 SEVERABILITY.
If any provision of this Agreement shall be determined by an arbitrator
or any court of competent jurisdiction to be illegal, invalid or unenforceable,
that provision shall be severed from this Agreement and the remaining provisions
shall continue in full force and effect.
SECTION 6.12 GOVERNING LAW.
This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein. The parties hereby attorn to the jurisdiction of the
courts of the Province of Ontario.
SECTION 6.13 COUNTERPARTS.
This Agreement may be executed in any number of counterparts (including
counterparts by facsimile) and all such counterparts taken together shall be
deemed to constitute one and the same instrument.
Les parties a la presente reconnaissent avoir exige qu'elle soit
redigee en anglais et s'en declarent satisfaits.
IN WITNESS WHEREOF the parties have executed this Share Purchase
Agreement.
GLAXO WELLCOME INC.
By: /S/ Patrick McGrade
---------------------------------
Assistant Corporate Secretary
BIOCHEM PHARMA INC.
By: /S/ Fred Andrew
---------------------------------
Chief Financial Officer
By: /S/ Francois Legault
---------------------------------
Executive Vice President,
Corporate Development and
Investments
