THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR PROVINCE OF CANADA AND SUCH SECURITIES MAY NOT
BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM
NORTH AMERICAN VACCINE, INC.
WARRANT FOR THE PURCHASE OF COMMON SHARES
No. W-1 250,000 Shares
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FOR VALUE RECEIVED, NORTH AMERICAN VACCINE, INC. (the "Company"), a
Canadian corporation, hereby certifies that BioChem Pharma Inc. or its permitted
assigns (the "Holder") is entitled to purchase from the Company, at any time or
from time to time after the date set forth on the signature page, but prior to
5:00 p.m. on July 21, 2001, two hundred fifty thousand (250,000) fully paid and
non-assessable common shares, no par value, of the Company for an aggregate
purchase price of One Million Two Hundred Eighty-Four Thousand Three Hundred
Seventy-Five U.S. Dollars (US$1,284,375) (computed on the basis of US$5.1375 per
share). (Hereinafter, (i) said common shares, together with any other equity
securities which may be issued by the Company in substitution therefor, are
referred to as the "Common Shares":, (ii) the Common Shares purchasable
hereunder are referred to as the "Warrant Shares", (iii) the aggregate purchase
price payable hereunder for the Warrant Shares is referred to as the "Aggregate
Warrant Price", (iv) the price payable hereunder for each of the Warrant Shares,
as adjusted in the manner set forth in Section 3, is referred to as the "Per
Share Warrant Price" and (v) this Warrant and all warrants hereafter issued in
exchange or substitution for this Warrant are referred to as the "Warrants") The
Aggregate Warrant Price is not subject to adjustment. The Per Share Warrant
Price and the number of Warrant Shares are subject to adjustment as hereinafter
provided.
1. EXERCISE OF WARRANT. This Warrant may be exercised, in whole at any
time or in part from time to time (such partial exercises to be in amounts of
not less than 1,000 Warrant Shares), on and after the date set forth on the
signature page, but prior to 5:00 p.m. on July 21, 2001, by the Holder of this
Warrant by the surrender of this Warrant (with the subscription form at the end
hereof duly executed) at the principal office of the Company in Columbia, MD
together with proper payment of the Aggregate Warrant Price applicable on such
date, or the proportionate part thereof if this Warrant is exercised in part.
Payment for Warrant Shares shall be made by (i) check payable to the order of
the Company, (ii) wire transfer to an account designated by and in the name of
the Company, (iii) by delivery to the Company of debt securities for which it is
the issuer and bound to make payment in the stated principal amount, where the
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principal amount on such debt security delivered to the Company for retirement
is equal to the Aggregate Warrant Price; or (iv) by any combination of the
methods set forth in (i) through (iii), above. If this Warrant is exercised in
part, this Warrant must be exercised for a number of whole Warrant Shares, and
the Holder is entitled to receive a new Warrant covering the number of Warrant
Shares in respect of which this Warrant has not been exercised and setting forth
the proportionate part of the Aggregate Warrant Price applicable to such Warrant
Shares. Upon such surrender of this Warrant, the Company will issue a
certificate or certificates in the name of the Holder for the largest number of
whole Warrant Shares to which the Holder shall be entitled and, if this Warrant
is exercised in whole, in lieu of any fractional Warrant Share to which the
Holder shall be entitled, cash equal to the fair value of such fractional share
(determined in such reasonable manner as the Board of Directors of the Company
shall determine).
2. RESERVATION OF WARRANT SHARES. The Company agrees that, prior to the
expiration of this Warrant, the Company will at all times have authorized and
reserve, and will keep available, solely for issuance or delivery upon the
exercise of this Warrant, the Warrant Shares free and clear of all restrictions
on sale or transfer (except as may arise under applicable securities laws) and
free and clear of all preemptive rights.
3. PROTECTION AGAINST DILUTION. (a) If, at any time or from time to time
after the date of this Warrant, the Company shall (i) issue to the holders of
the Common Shares any Common Shares by way of a stock dividend; (ii) subdivide
its outstanding Common Shares into a greater number of shares; (iii) combine its
outstanding number of Common Shares into a smaller number (i.e., a reverse stock
split); or (iv) issue by reclassification of its Common Shares any shares of
capital stock of the Company then, and in each such case, the Per Share Warrant
Price in effect immediately prior to the date of such action shall be adjusted,
or further adjusted, to a price (to the nearest cent) determined by dividing (x)
an amount equal to the number of Common Shares outstanding immediately prior to
such issuance multiplied by the Per Share Warrant Price in effect immediately
prior to such issuance by (y) the total number of Common Shares outstanding
immediately after such issuance. Upon each adjustment in the Per Share Warrant
Price resulting from a stock split or stock dividend, the number of Warrant
Shares shall be adjusted by dividing the Aggregate Warrant Price by the Per
Share Warrant Price in effect immediately after such adjustment. Notice of each
such adjustment and each such readjustment shall be forthwith mailed to the
Holder.
(b) If the Company shall be consolidated with or merged into another
corporation, or shall sell all or substantially all of its assets as part of a
reorganization to which the Company is a party within the meaning of the
Internal Revenue Code of 1986, as presently in effect, or shall issue a security
convertible into its Common Shares as a dividend on its Common Shares, each
Warrant Share shall be replaced for the purposes hereof by the securities or
properties issuable or distributed in respect of one Common Share upon such
consolidation, merger, sale, reclassification or reorganization, and adequate
provisions to that effect shall be made at the time thereof. Notice of such
consolidation, merger, sale, reclassification or reorganization, and of said
provisions so proposed to be made, shall be mailed to the Holder not less than
15 days prior to such event.
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(c) If the Board of Directors of the Company shall declare any
dividend or other distribution in cash with respect to the Common Shares, other
than out of surplus, the Company shall mail notice thereof to the Holder not
less than 15 days prior to the record date fixed for determining shareholders
entitled to participate in such dividend or other distribution.
(d) If, during the term of this Warrant, the Company shall issue or
sell its Common Shares for a consideration per share less than the Per Share
Warrant Price immediately prior to the time of such issue or sale, then
forthwith upon such issue or sale, the Per Share Warrant Price in effect
immediately prior to such issue or sale shall be reduced to the lower of the
prices (calculated to the nearest cent) determined as follows:
(1) by dividing (A) an amount equal to the sum of (i) the number
of shares of Common Stock outstanding immediately prior to such issue or sale
multiplied by the then-existing Per Share Warrant Price, and (ii) the
consideration, if any, received by the Company upon such issue or sale, by (B)
the total number of Common Shares outstanding immediately after such issue or
sale; and
(2) by multiplying the Per Share Warrant Price in effect
immediately prior to the time of such issue or sale by a fraction, the numerator
of which shall be (A) the sum of (i) the number of Common Shares outstanding
immediately prior to such issue or sale multiplied by the market price
immediately prior to such issue or sale; and (ii) the consideration received by
the Company upon such sale, divided by (B) the total number of Common Shares
outstanding immediately after such issue or sale, and the denominator of which
shall be the market price immediately prior to such issue or sale.
4. FULLY PAID SHARES; TAXES. The Company agrees that the Common Shares
represented by each and every certificate for Warrant Shares delivered on the
exercise of this Warrant shall, at the time of such delivery, be validly issued
and outstanding, fully paid and non-assessable. The Company further covenants
and agrees that it will pay, when due and payable, any and all Federal and state
stamp, original issue or similar taxes which may be payable in respect of the
issue of any Warrant Share or certificate therefor.
5. TRANSFERABILITY. This Warrant and the Warrant Shares shall not be
sold, transferred, assigned or hypothecated by the Holder except (i) pursuant to
an effective registration statement under the Securities Act of 1933, as
amended, and qualification for sale under all other applicable state and
provincial securities rules and regulations [collectively the "Securities
Acts"]; or (ii) in full compliance with all requirements necessary to establish
an exemption from the registration requirements of the Securities Acts. In order
to properly establish compliance with (ii), above, the Company shall be entitled
to request and receive in advance of authorizing any sale, transfer, assignment
or hypothecation of this Warrant or any of the Warrant Shares: (x) appropriate
transferor and transferee representation letters supporting a claimed exemption
from registration requirements of the Securities Acts; (y) an opinion of counsel
for the holder of the Warrant and/or Warrant Shares reasonably satisfactory to
the Company that the proposed transfer from the holder of the Warrant and/or
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Warrant Shares to the transferee is exempt from the registration requirements of
the Securities Act; and (z) such other documentation, representations and
filings as may be reasonably required by counsel in order to issue the foregoing
opinion. The Company may treat the registered holder of this Warrant as it
appears on the Company's books at any time as the Holder for all purposes.
6. LOSS, ETC. OF WARRANT. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed,
and upon surrender and cancellation of this Warrant, if mutilated, and upon
reimbursement of the Company's reasonable incidental expenses, the Company shall
execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
7. WARRANT HOLDER NOT SHAREHOLDER. Except as otherwise provided herein,
this Warrant does not confer upon the Holder any right to vote or to consent or
to receive notice as a shareholder of the Company, as such, in respect of any
matters whatsoever, or any other rights or liabilities as a shareholder, prior
to the exercise hereof.
8. COMMUNICATION. No notice or other communication under this Warrant
shall be effective unless, but any notice or other communication shall be
effective and shall be deemed to have been given if, the same is in writing and
is mailed by first-class mail, postage prepaid, addressed to:
(a) the Company at North American Vaccine, Inc., 00000 Xxx Xxxxxxxx
Xxxx, Xxxxxxxx, XX 00000 Attention: Vice President-Finance, or such other
address as the Company has designated in writing to the Holder, or
(b) the Holder at BioChem Pharma Inc., 000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxx, X0X 0X0 Xxxxxx, Xxxxxx Attention: Executive Vice
President-Investments & Subsidiaries, or such other address as the Holder has
designated in writing to the Company.
9. HEADINGS. The headings of this Warrant have been inserted as a matter
of convenience and shall not affect the construction hereof.
10. APPLICABLE LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, NORTH AMERICAN VACCINE, INC. has caused this Warrant
to be signed by its Chief Executive Officer and President and its corporate seal
to be hereunto affixed and attested by its Secretary this 21st day of July 1999.
ATTEST: NORTH AMERICAN VACCINE, INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxx
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Xxxxxxx X. Xxxxxx Xxxxxx Xxxxx
Assistant Secretary Chief Executive Officer & President
[Corporate Seal]
