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. 5)
BIOCHEM PHARMA INC.
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(Name of Issuer)
Common Shares, Without Par Value
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(Title of Class of Securities)
09058T108
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(CUSIP Number)
Stephen Cowden
Glaxo Wellcome plc
Glaxo Wellcome House, Berkeley Avenue,
Greenford, Middlesex UB6 0NN, England
011-44-20-7408-8706
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
with copies to:
Walter A. Looney
Simpson Thacher & Bartlett
99 Bishopsgate
London EC2M 3YH, England
011-44-20-7422-4000
July 5, 2000
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(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
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filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box |_|.
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).
Page 2 of 14 pages
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SCHEDULE 13D
CUSIP No. 09058T108 Page 3 of 14 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 2,816,908 Shares
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY Not applicable
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 2,816,908 Shares
WITH
10 SHARED DISPOSITIVE POWER
Not applicable
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,816,908 Shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.8 %
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
Page 3 of 14 pages
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SCHEDULE 13D
CUSIP No. 09058T108 Page 4 of 14 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wellcome 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 2,816,908 Shares
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY Not applicable
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 2,816,908 Shares
WITH
10 SHARED DISPOSITIVE POWER
Not applicable
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,816,908 Shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.8 %
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
Page 4 of 14 pages
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SCHEDULE 13D
CUSIP No. 09058T108 Page 5 of 14 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Glaxo Wellcome Holdings 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 2,816,908 Shares
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY Not applicable
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 2,816,908 Shares
WITH
10 SHARED DISPOSITIVE POWER
Not applicable
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,816,908 Shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.8 %
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
Page 5 of 14 pages
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SCHEDULE 13D
CUSIP No. 09058T108 Page 6 of 14 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 2,816,908 Shares
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY Not applicable
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 2,816,908 Shares
WITH
10 SHARED DISPOSITIVE POWER
Not applicable
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,816,908 Shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.8 %
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
Page 6 of 14 pages
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SCHEDULE 13D
CUSIP No. 09058T108 Page 7 of 14 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 2,816,908 Shares
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY Not applicable
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 2,816,908 Shares
WITH
10 SHARED DISPOSITIVE POWER
Not applicable
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,816,908 Shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.8 %
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
Page 7 of 14 pages
<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. 5 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. 3 to
Schedule 13D ("Amendment No. 3") jointly filed with the Commission on June
18, 1999 by (i) Glaxo Wellcome Inc., (ii) Glaxo Wellcome International BV,
(iii) Glaxo Group Limited and (iv) Glaxo Wellcome plc.
This is being filed jointly by (i) Glaxo Wellcome plc (the
"Parent"), (ii) Wellcome Limited, (iii) Glaxo Wellcome Holdings Limited, (iv)
Glaxo Wellcome International BV and (v) Glaxo Wellcome Inc. The foregoing
persons shall collectively be referred to herein as the "Glaxo Reporting
Persons."
As of the date of this filing, the Parent is the ultimate parent
holding company with respect to all of the other Glaxo Reporting Persons.
The Parent directly owns 100% of Wellcome Limited. Wellcome Limited owns
83.3% of Glaxo Wellcome Holdings Limited, which in turn owns 100% of Glaxo
Wellcome International BV. Glaxo Wellcome International BV owns 100% of
Glaxo Wellcome Inc.
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 to Amendment No. 3.
The information set forth in the Exhibits referred to herein 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.
Pursuant to the Share Purchase Agreement, dated as of June 29, 2000
(the "Share Purchase Agreement"), between Glaxo Wellcome Inc. and Power
Broadcasting Inc., an Ontario corporation ("Power"), Glaxo Wellcome Inc. sold
Page 8 of 14 pages
<PAGE>
2,500,000 shares of BioChem Common Stock to Power for an aggregate US$51.1
million in cash. The transaction was completed on July 5, 2000. This sale
by Glaxo Wellcome Inc. was made for investment purposes. The Share Purchase
Agreement is attached as Exhibit 2 hereto.
As of December 31, 1999, based upon information set forth in the
1999 Annual Report of BioChem, there were 101,992,908 shares of BioChem
Common Stock outstanding. Consequently, as a result of this transaction,
Glaxo Wellcome plc, Wellcome Limited, Glaxo Wellcome Holdings Limited and
Glaxo Wellcome International BV may be deemed to be indirect beneficial
owners of 2,816,908 shares of BioChem Common Stock held directly by Glaxo
Wellcome Inc., which shares represent approximately 2.8% of the outstanding
shares of BioChem Common Stock.
This Schedule 13D is being filed to report the effect of the Share
Purchase Agreement and the fact that the Glaxo Reporting Persons now own less
than five percent of BioChem Common Stock and, accordingly, will hereafter
have no further obligation to report with respect to the Issuer.
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, Wellcome
Limited, Glaxo Wellcome Holdings Limited, Glaxo Wellcome
International BV and Glaxo Wellcome Inc.
Exhibit 2 -- Share Purchase Agreement, dated as of June 29, 2000, between
Glaxo Wellcome Inc. and Power Broadcasting Inc.
Page 9 of 14 pages
<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: July 28, 2000
GLAXO WELLCOME PLC
By: /s/ Simon M. Bicknell
----------------------------------
Name: Simon M. Bicknell
Title: Assistant Company Secretary
Page 10 of 14 pages
<PAGE>
INDEX TO EXHIBITS
Exhibit 1 -- Joint Filing Agreement among Glaxo Wellcome plc, Wellcome
Limited, Glaxo Wellcome Holdings Limited, Glaxo Wellcome
International BV and Glaxo Wellcome Inc.
Exhibit 2 -- Share Purchase Agreement, dated as of June 29, 1999, between
Glaxo Wellcome Inc. and Power Broadcasting Inc.
Page 11 of 14 pages
<PAGE>
EXHIBIT 1 TO SCHEDULE 13D
JOINT FILING AGREEMENT
Each of the undersigned hereby agrees and consents that the
Schedule 13D filed herewith by Glaxo Wellcome plc ("Glaxo Wellcome") is filed
on behalf of each of them pursuant to the authorization of each of them to
Glaxo Wellcome to make such filing and that such Schedule 13D is 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 the persons is not responsible for the
completeness or accuracy of the information concerning the other persons
making this filing unless such person knows or has reason to believe that
such information is inaccurate. This agreement may be signed in
counterparts.
Dated: July 28, 2000
GLAXO WELLCOME PLC
By: /s/ Simon M. Bicknell
----------------------------------
Name: Simon M. Bicknell
Title: Assistant Company Secretary
WELLCOME LIMITED
By: /s/ Simon M. Bicknell
----------------------------------
Name: Simon M. Bicknell
Title: Assistant Secretary
Page 12 of 14 pages
<PAGE>
GLAXO WELLCOME HOLDINGS LIMITED
By: /s/ Victoria Llewellyn
----------------------------------
Name: Victoria Llewellyn
Title: Assistant Company Secretary
GLAXO WELLCOME INTERNATIONAL BV
By: /s/ S.K. Roosjen
----------------------------------
Name: S.K. Roosjen
Title: Director
GLAXO WELLCOME INC.
By: /s/Patrick M. McGrade
----------------------------------
Name: Patrick M. McGrade
Title: Assistant Corporate Secretary
Page 13 of 14 pages
<PAGE>
EXHIBIT 2 TO SCHEDULE 13D
GLAXO WELLCOME INC.
as Vendor
and
POWER BROADCASTING INC.
as Purchaser
SHARE PURCHASE AGREEMENT
June 29, 2000
<PAGE>
TABLE OF CONTENTS
ARTICLE 1 PURCHASE AND SALE . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.1 Purchase and Sale . . . . . . . . . . . . . . . . 3
Section 1.2 Purchase Price . . . . . . . . . . . . . . . . . . 3
ARTICLE 2 DELIVERY . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.1 Delivery . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . 4
Section 3.1 Vendor's Representations and Warranties . . . . . 4
Section 3.2 Purchaser's Representations and Warranties . . . . 5
ARTICLE 4 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 4.1 Taxes . . . . . . . . . . . . . . . . . . . . . . 6
Section 4.2 Covenants of the Vendor . . . . . . . . . . . . . 6
Section 4.3 Covenants of the Purchaser . . . . . . . . . . . . 6
ARTICLE 5 SURVIVAL . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5.1 Survival . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 6 CONDITIONS OF DELIVERY . . . . . . . . . . . . . . . . . . . 7
Section 6.1 Conditions for the Benefit of the Purchaser . . . 7
Section 6.2 Conditions for the Benefit of the Vendor . . . . . 8
ARTICLE 7 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 7.1 Notices . . . . . . . . . . . . . . . . . . . . . 9
Section 7.2 Time of the Essence . . . . . . . . . . . . . . . 9
Section 7.3 Announcements . . . . . . . . . . . . . . . . . 10
Section 7.4 Third Party Beneficiaries . . . . . . . . . . . 10
Section 7.5 Expenses . . . . . . . . . . . . . . . . . . . . 10
Section 7.6 Amendments . . . . . . . . . . . . . . . . . . . 10
Section 7.7 Waiver . . . . . . . . . . . . . . . . . . . . . 10
Section 7.8 Entire Agreement . . . . . . . . . . . . . . . . 11
Section 7.9 Further Assurances . . . . . . . . . . . . . . . 11
Section 7.10 Successors and Assigns . . . . . . . . . . . . . 11
Section 7.11 Severability . . . . . . . . . . . . . . . . . . 11
Section 7.12 Governing Law . . . . . . . . . . . . . . . . . 11
Section 7.13 Counterparts . . . . . . . . . . . . . . . . . . 12
i
<PAGE>
SHARE PURCHASE AGREEMENT
Share Purchase Agreement dated June 29, 2000, between Glaxo
Wellcome Inc. (the "Vendor") and Power Broadcasting Inc. (the
"Purchaser").
RECITALS:
(a) The Vendor is the registered and beneficial owner of 5,316,908
issued and outstanding common shares (the "Owned Shares") in
the capital of BioChem Pharma Inc. (the "Company");
(b) The Vendor wishes to sell and the Purchaser wishes to purchase
2,500,000 of the Owned 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
Section 1.1 Purchase and Sale.
Subject to the terms and conditions of this Agreement, the Vendor
hereby sells, assigns and transfers to the Purchaser and the Purchaser
hereby purchases from the Vendor 2,500,000 of the Owned Shares (the
"Purchased Shares").
Section 1.2 Purchase Price.
The purchase price payable by the Purchaser to the Vendor for the
Purchased Shares shall be U.S.$ 20.44 for each Purchased Share for an
aggregate purchase price of U.S.$ 51,100,000.00 (the "Purchase Price").
The Purchase Price shall be paid on the Delivery Date in immediately
available funds by wire transfer to the following account:
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.
Account No 02-95418
Transit No 00002
1
<PAGE>
against delivery to the Purchaser of a share certificate evidencing the
Purchased Shares duly registered in the name of the Purchaser or a
nominee to be designated by Purchaser by 9h00 (Montreal time) on June 30,
2000.
ARTICLE 2
DELIVERY
Section 2.1 Delivery.
The delivery of the certificate evidencing the Purchased Shares
referred to in shall be made in escrow for release upon confirmation of
receipt of the Purchase Price from the Vendor to Goodman Phillips &
Vineberg, Suite 2600, 1501 McGill College Avenue, Montreal, Quebec, at
10:00 a.m. (Montreal time) on the 5th day of July, 2000, or at such other
time and place as may be agreed upon in writing by the parties (the
"Delivery Date").
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Vendor's Representations and Warranties.
The Vendor represents and warrants as follows to the Purchaser at
the date hereof and as at the Delivery 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, organized 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) Status of Vendor. The Vendor is not a person who, by virtue
of its status under any applicable laws, is restricted or
prohibited from trading in securities of the Company;
(c) 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 and the Purchased Shares have been held by the Vendor
for more than twelve (12) months;
(d) Securities Matters. The sale of the Purchased Shares is not
from a holding of a person or company or combination of
persons or companies referred to in clause (c) of the
definition of "distribution" in subsection 1 (1) of the
Securities Act (Ontario) and is not by an "affiliate" of the
Company as defined in Rule 144 under the United States
Securities Act of 1933;
(e) Execution and Binding Obligation. This Agreement has been
duly executed and delivered by the Vendor and constitutes a
2
<PAGE>
legal, valid and binding obligation of the Vendor enforceable
against it in accordance with its terms;
(f) No Other Agreements to Purchase. Except for the Purchaser's
rights under this Agreement, 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;
(g) Residence. The Vendor is a resident of Canada for the
purposes of the Income Tax Act (Canada);
(h) Material Disclosure. 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 common shares of BioChem Pharma
Inc.; and
(i) Non-Public Information. In addition to the foregoing, the
Vendor hereby confirms that it and Glaxo Wellcome plc or its
successor are not aware of any material non-public information
concerning BioChem Pharma Inc. or its business, affairs or
securities, other than the transactions contemplated herein.
Section 3.2 Purchaser's Representations and Warranties.
The Purchaser hereby represents and warrants to the Vendor at the
date hereof and as at the Delivery Date and acknowledges that the Vendor
is relying on such covenants, representations and warranties in
connection with the purchase by the Purchaser of the Purchased Shares:
(a) Incorporation and Authority. The Purchaser is a corporation
incorporated, organized 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
obligations 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; and
(c) Status of Purchaser. The Purchaser is a wholly-owned
subsidiary of Power Corporation of Canada whose shares are
listed on the Toronto Stock Exchange.
3
<PAGE>
ARTICLE 4
COVENANTS
Section 4.1 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 4.2 Covenants of the Vendor.
The Vendor shall ensure that the representations and warranties of
the Vendor set forth in are true and correct and shall be so as of the
Delivery Date and that the conditions of delivery for the benefit of the
Purchaser set forth in over which the Vendor has reasonable control have
been performed or complied with on the Delivery Date.
Section 4.3 Covenants of the Purchaser.
The Purchaser shall ensure that the representations and warranties
of the Purchaser set forth in are true and correct and shall be so as of
the Delivery Date and that the conditions of delivery for the benefit of
the Vendor set forth in over which the Purchaser has reasonable control
have been performed or complied with on the Delivery Date.
ARTICLE 5
SURVIVAL
Section 5.1 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 delivery of the Purchased Shares
herein provided for and, notwithstanding such delivery, and regardless of
any investigation by or on behalf of the Purchaser or Vendor respectively
with respect thereto, shall continue in full force and effect for the
benefit of the Purchaser and Vendor.
ARTICLE 6
CONDITIONS OF DELIVERY
Section 6.1 Conditions for the Benefit of the Purchaser.
(1) The payment by the Purchaser of the Purchase Price for the
Purchased Shares is subject to the following conditions to be
fulfilled or performed on the Delivery 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 shall be true and correct as of
the Delivery Date with the same force and effect as if
such covenants, representations and warranties had been
made on and as of such date;
4
<PAGE>
(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 Delivery
Date;
(c) The Purchaser shall be furnished with
(i) a certificate of the President and CEO of the Vendor
as to compliance by the Vendor with and ; and
(ii) a legal opinion of counsel to the Vendor dated June
29th, 2000 as to the accuracy of Sections 3.1 (a),
(b), and (e) and that no regulatory approvals,
consents or notifications were required to permit
the Purchased Shares to be duly and validly
transferred to the Purchaser;
(d) The Vendor shall deliver or cause to be delivered to the
Purchaser a share certificate representing the Purchased
Shares duly registered in the name of the Purchaser or
its nominee; and
(e) Glaxo Wellcome plc or its successor shall deliver to the
Purchaser a letter dated as of the date hereof to the
same effect as referred to in in respect of its own
senior management.
(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 Delivery Date shall not have been performed or
complied with on or prior to the Delivery 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 6.2 Conditions for the Benefit of the Vendor.
(1) The delivery of the certificate evidencing the Purchased Shares by
the Vendor is subject to the following conditions to be fulfilled
or performed on the Delivery 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 shall be true and correct as of
the Delivery 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 and conditions of this Agreement to be
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performed or complied with by the Purchaser on the Delivery
Date;
(c) The Vendor shall have been furnished with an opinion of
counsel to the Purchaser as to the matters referred to in and
(b);
(d) No regulatory approvals, consents or notifications were
required to permit the Purchased Shares to be duly and validly
purchased by the Purchaser.
(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 Delivery Date shall not have been performed or
complied with on or prior to the Delivery 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 7
MISCELLANEOUS
Section 7.1 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:
(a) to the Purchaser at:
751 Victoria Square
Montreal, Quebec
H2Y 2J3
Attention: Peter Kruyt, President
Telephone: (514) 286-7411
Facsimile: (514) 286-7464
(b) to the Vendor at:
7333 Mississauga Road North
Mississauga, Ontario
L5N 6L4
Attention: Paul Lucas
Facsimile: 905-819-3097
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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. (Montreal 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 7.2 Time of the Essence.
Time shall be of the essence of this Agreement.
Section 7.3 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 and, if so requested by the other party, to obtain
confidential treatment for such disclosure.
Section 7.4 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.
Section 7.5 Expenses.
Except as otherwise expressly provided in this Agreement, all costs
and expenses (including the fees and disbursements of legal counsel,
investment advisers and accountants) incurred in connection with this
Agreement and the transactions contemplated therein shall be paid by the
party incurring such expenses.
Section 7.6 Amendments.
Subject to, this Agreement may only be amended, supplemented or
otherwise modified by written agreement signed by the Vendor and the
Purchaser.
Section 7.7 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
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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 7.8 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 7.9 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 7.10 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.
(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 7.11 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 7.12 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
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of Canada applicable therein. The parties hereby attorn to the
jurisdiction of the courts of the Province of Ontario.
Section 7.13 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: Paul N. Lucas
______________________________________
Authorized Signing Officer
By: Patrick M. McGrade
______________________________________
Authorized Signing Officer
POWER BROADCASTING INC.
Peter Kruyt
By:_______________________________________
Authorized Signing Officer
Yvon Chouinard
By:_______________________________________
Authorized Signing Officer
9
