EXHIBIT 99.3
AMALGAMATION AGREEMENT
THIS AMALGAMATION AGREEMENT is made as of the 2nd day of May, 2005.
AMONG:
YM BIOSCIENCES INC.
("YM")
AND:
2069044 ONTARIO LIMITED
("Subco")
AND:
DELEX THERAPEUTICS INC.
("Delex")
WHEREAS:
A. Pursuant to a merger agreement between YM, Subco, Delex and certain
shareholders of Delex dated Xxxxx 0, 0000, Xxxxx and Subco have agreed to
amalgamate pursuant to the Business Corporations Act (Ontario) upon the terms
and conditions hereinafter set forth;
B. The authorized capital of Delex consists of an unlimited number of Delex
Common Shares, an unlimited number of Class A Shares, an unlimited number of
Class B Shares and an unlimited number of Special Shares, of which 1,215,000
Delex Common Shares, 900,000 Class A Shares, 3,287,135 Class B Shares and
3,068,676 Special Shares were issued and outstanding as at the date hereof;
C. The authorized capital of Subco consists of an unlimited number of Subco
Common Shares of which one Subco Common Share was issued and outstanding as at
the date hereof; and
D. YM owns beneficially and of record the outstanding Subco Common Share.
NOW THEREFORE in consideration of the mutual covenants and agreements contained
herein and other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged) the parties agree as follows:
1. Interpretation
In this Agreement, the following terms shall have the following meanings:
(a) "Agreement" means this amalgamation agreement, and the expressions
"hereof", "herein", "hereto", "hereunder", "hereby" and similar
expressions refer to this Agreement;
(b) "Amalco" means the corporation continuing from the Amalgamation of
the Amalgamating Corporations;
(c) "Amalco Common Shares" means the common shares in the capital of
Amalco;
(d) "Amalgamating Corporations" means Delex and Subco;
(e) "Amalgamation" means the amalgamation of the Amalgamating
Corporations as contemplated in this Agreement;
(f) "Business Day" means any day on which commercial banks are open for
business in Toronto, Ontario other than a Saturday, a Sunday or a
day observed as a holiday in Toronto, Ontario under the laws of the
Province of Ontario or the federal laws of Canada;
(g) "Certificate of Amalgamation" means the Certificate of Amalgamation
to be issued by the Director under the OBCA giving effect to the
Amalgamation;
(h) "Class A Shares" means the Class A preference shares in the capital
of Delex;
(i) "Class B Shares" means the Class B preference shares in the capital
of Delex;
(j) "Delex Common Shares" means the common shares in the capital of
Delex;
(k) "Delex Shares" means, collectively, the Delex Common Shares, the
Class A Shares, the Class B Shares and the Special Shares;
(l) "Delex Securityholder" means a holder of Delex Shares;
(m) "Director" means the director appointed under section 278 of the
OBCA;
(n) "Dissenting Shareholder" means a registered Delex Securityholder
who, in connection with the special resolution of the Delex
Securityholders approving and adopting the Amalgamation and this
Agreement, has sent to Delex a written objection and a demand for
payment within the time limits and in the manner prescribed by
subsections 185(5) and 185(7) of the OBCA, respectively, with
respect to his or her Delex Shares;
(o) "Effective Date" means the date shown on the Certificate of
Amalgamation;
(p) "Effective Time" means 12:01 a.m. (Toronto time) on the Effective
Date;
(q) "Governmental Entity" means any (a) multinational, federal,
provincial, state, regional, municipal, local or other government,
governmental or public department, regulatory body, commission,
arbitral body, board, bureau, agency, court or tribunal, domestic or
foreign, (b) any subdivision, arbitral body, commission, board,
bureau, agency or authority of any of the foregoing, (c) any
quasi-governmental or private body exercising any regulatory,
expropriation or taxing authority under or for the account of any of
the foregoing, or (d) any self-regulatory organization;
(r) "Laws" means all laws, statutes, codes, regulations, statutory
rules, orders, ordinances, decrees, decisions, written policies or
guidelines, by-laws, judicial or arbitral or administrative or
ministerial or departmental or regulatory judgments, orders,
decisions, rulings or awards including general principals of common
and civil law, and terms and conditions of any grant of approval,
permission, authority or licence of any Governmental Entity or
self-regulatory authority, including the Toronto Stock Exchange, and
the term "applicable" with respect to any such Laws and in the
context that refers to one or more Persons, means that such Laws
apply to such Person or Persons or its or their business,
undertakings, property or securities and emanate from any
Governmental Entity or self-regulatory authority having jurisdiction
over the Person or Persons or its or their business, undertakings,
property or securities;
(s) "Merger Agreement" means the merger agreement referred to in Recital
"A" as the same may be amended from time to time;
(t) "OBCA" means the Business Corporations Act (Ontario), as amended;
(u) "Person" includes any individual, firm, partnership, joint venture,
venture capital fund, limited liability company, unlimited liability
company, association, trust, trustee, executor, administrator, legal
personal representative, estate, group, body corporate, corporation,
unincorporated association or organization, Governmental Entity,
syndicated or other entity, whether or not having legal status;
(v) "Special Shares" means the special preference shares in the capital
of Delex;
(w) "Subco Common Shares" means the common shares in the capital of
Subco; and
(x) "YM Common Shares" means the common shares in the capital of YM.
Words and phrases used but not defined in this Agreement and defined in the OBCA
shall have the same meaning in this Agreement as in the OBCA unless the context
or subject matter otherwise requires.
2. Number and Gender
In this Agreement, unless the context otherwise requires, words used herein
importing the singular include the plural and vice versa, words importing gender
will include all genders.
3. Interpretation Not Affected by Headings
The headings contained in this Agreement are for reference purposes only and
will not affect in any way the meaning or interpretation of this Agreement.
References to sections and Articles refer to sections and articles of this
Agreement unless otherwise stated.
4. Date of Any Action
If the date on which any action is required to be taken hereunder is not a
Business Day in the place where the action is required to be taken, that action
will be required to be taken on the next succeeding day which is a Business Day
in that place.
5. Time
All times expressed herein are local time (Toronto, Ontario) unless otherwise
stipulated herein or therein.
6. Currency
Unless otherwise stated, all references in this Agreement to sums of money are
expressed in lawful money of Canada.
7. Statutory References
Any reference in this Agreement to a statute includes all regulations made
thereunder, all amendments to that statute or regulations in force from time to
time, and any statute or regulation that supplements or supersedes that statute
or regulations.
8. Agreement to Amalgamate
The Amalgamating Corporations do hereby agree to amalgamate pursuant to the
provisions of Section 174 of the OBCA as of the Effective Time and to continue
as one corporation on the terms and conditions set out in this Agreement.
9. Effect of Amalgamation
As at and from the Effective Time:
(a) the Amalgamating Corporations shall be amalgamated and continue as
one corporation under the terms and conditions prescribed in this
Agreement;
(b) Amalco shall possess all the property, rights, privileges and
franchises and be subject to all liabilities, including civil,
criminal and quasi-criminal, and all contracts, disabilities and
debts of each of the Amalgamating Corporations;
(c) a conviction against, or ruling, order or judgment in favour or
against an Amalgamating Corporation may be enforced by or against
Amalco;
(d) the Articles of Amalgamation shall be deemed to be the articles of
incorporation of Amalco and, except for the purposes of subsection
117(1) of the OBCA, the Certificate shall be deemed to be the
certificate of incorporation of Amalco; and
(e) Amalco shall be deemed to be the party plaintiff or the party
defendant, as the case may be, in any civil action commenced by or
against an Amalgamating Corporation before the Amalgamation has
become effective.
10. Name
The name of Amalco shall be Delex Therapeutics Inc.
11. Registered Office
The registered office of Amalco shall be in the City of Mississauga, in the
Province of Ontario.
12. Authorized Capital
Amalco is authorized to issue an unlimited number of Amalco Common Shares. The
rights, privileges, restrictions and conditions attaching to the Amalco Common
Shares are as follows:
(a) Dividends and Distributions: Subject to applicable law, the holders
of the Amalco Common Shares are entitled to receive equally, share
for share: (i) all dividends declared by the directors, (ii) all
property of Amalco that is ever distributed to any of its
shareholders (including without limitation on any final
distribution) and (iii) any remaining property of Amalco on
liquidation, dissolution or winding-up; and
(b) Votes: The holders of the Amalco Common Shares are entitled to
receive notice of and to attend all meetings of shareholders of
Amalco, except meetings at which only holders of another specified
class or series of shares are entitled to vote, and are entitled to
one vote for each Amalco Common Share held on all votes taken at
such meetings.
13. Restrictions on Issue, Transfer or Ownership of Shares
No security holder of Amalco shall be entitled to transfer registered or
beneficial ownership of any security or securities of Amalco without either:
(a) the consent of the holders of more than fifty percent of the Amalco
Common Shares for the time being outstanding expressed by a
resolution passed by the votes of the holders of more than fifty
percent of the Amalco Common Shares for the time being outstanding
at a meeting of the holders of the Amalco Common Shares or by a
resolution in writing signed by all the holders of the Amalco Common
Shares for the time being outstanding or by an instrument or
instruments in writing signed by the holders of more than fifty per
cent of the Amalco Common Shares for the time being outstanding; or
(b) the consent of the directors of Amalco expressed by a resolution
passed by the votes of a majority of the directors of Amalco at a
meeting of the board of directors of Amalco or by a resolution in
writing signed by all the directors of Amalco or by an instrument or
instruments in writing signed by a majority of the directors of
Amalco.
14. Special Provisions
(a) The directors of Amalco may, without authorization of the shareholders of
Amalco:
(i) borrow money upon the credit of Amalco;
(ii) issue, reissue, sell or pledge debt obligations of Amalco;
(iii) give a guarantee on behalf of Amalco to secure performance of an
obligation of any person; and
(iv) mortgage, hypothecate, pledge or otherwise create a security
interest in all or any property of Amalco, owned or subsequently
acquired, to secure any obligation of Amalco.
The directors may by resolution delegate any or all of the powers referred
to in this clause to a director, a committee of directors or an officer of
Amalco.
(b) The number of the shareholders of Amalco, exclusive of persons who are in
its employment and exclusive of persons who, having been formerly in the
employment of Amalco, were, while in that employment, and have continued after
termination of that employment to be, shareholders of Amalco, is limited to not
more than fifty, two or more persons who are the joint registered owners of one
or more shares being counted as one shareholder.
(c) Any invitation to the public to subscribe for securities of Amalco is
prohibited.
15. Business
There shall be no restrictions on the business which Amalco is authorized to
carry on or on the powers which Amalco may exercise.
16. Number of Directors
The board of directors of Amalco shall, until otherwise changed in accordance
with the OBCA, consist of a minimum number of one and a maximum number of ten
directors. The number of directors shall initially be one and the directors of
Amalco shall be empowered to determine from time to time the number of directors
of Amalco within the said minimum and maximum numbers provided for in the
articles of Amalco, as the same may be amended from time to time.
17. Initial Directors
The first director of Amalco shall be the person whose name and municipality of
residence appears below:
--------------------------------------------------------------------------------
Name Municipality of Residence Resident Canadian
--------------------------------------------------------------------------------
Xxxxx Xxxxx Toronto, Ontario Yes
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Such director shall hold office until the first annual meeting of shareholders
of Amalco or until his successor(s) is (or are) elected or appointed.
18. Officers
The officers of Amalco shall, until changed by the director of Amalco, be as
follows:
---------------------------------------- --------------------------------------
Name Office
---------------------------------------- --------------------------------------
Xxxxx Xxxxx President and Secretary
---------------------------------------- --------------------------------------
19. Auditors
The auditors of Amalco, until the first annual meeting of the shareholders of
Amalco, shall be KPMG LLP, Chartered Accountants until resignation or removal in
accordance with the provisions of the OBCA.
20. Issuance of Amalco Shares and YM Shares upon Amalgamation
On the Effective Date:
(a) each holder of Delex Shares (subject to the consequences of
applicable Laws in respect of each Dissenting Shareholder who is
ultimately entitled to be paid the fair value of his, her or its
Delex Shares) shall receive in exchange for each Delex Share held,
that number of YM Common Shares as is set out in the Merger
Agreement, provided that no fractional YM Common Shares shall be
issued and all such fractional interests of a holder of Delex Shares
shall be rounded down to the nearest whole share without any cash
payment in respect thereof;
(b) all Delex Shares outstanding immediately prior to the Amalgamation
will be cancelled;
(c) each Subco Common Share outstanding immediately prior to the
Amalgamation shall be converted into one Amalco Common Share; and
(d) Dissenting Shareholders will be entitled to be paid in cash the fair
value for their Delex Shares in accordance with the OBCA.
21. Cancellation of Unissued Shares of Delex
The authorized capital of Delex, specifically, the Delex Common Shares, the
Class A Shares, the Class B Shares and the Special Shares, shall be cancelled.
22. By-Laws
The by-laws of Amalco, until repealed, amended or altered, shall, to the extent
not inconsistent with this Agreement, be the by-laws of Subco.
23. Lost Certificates
In the event any certificate which immediately prior to the Effective Time
represented one or more outstanding Delex Shares that were exchanged pursuant to
section 20(a) of this Agreement shall have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the Delex Securityholder claiming
such certificate to be lost, stolen or destroyed, YM will issue to such Delex
Securityholder in exchange for such lost, stolen or destroyed certificate, any
YM Shares issuable upon the exchange of the Delex Shares represented by such
certificate. When authorizing such issuance in exchange for any lost, stolen or
destroyed certificate, the Delex Securityholder to whom YM Shares are to be
issued shall, as a condition precedent to the issuance thereof, indemnify Amalco
and YM in a manner satisfactory to Amalco and YM, acting reasonably, against any
claim that may be made against YM or Amalco with respect to the certificate
alleged to have been lost, stolen or destroyed.
24. Termination
Without prejudice to any other rights or recourse of the parties hereto and
notwithstanding any other provision hereof, this Agreement shall automatically,
without notice, terminate immediately and be of no further force or effect, upon
the termination of the Merger Agreement.
25. Dissent Rights
(a) A Dissenting Shareholder who duly exercises his, her or its rights
of dissent under section 185 of the OBCA and who is ultimately
determined to be entitled to be paid fair value for his, her or its
Delex Shares, shall be deemed to have transferred such Delex Shares
immediately prior to the Effective Time, without any further act or
formality and free and clear of all liens, claims and encumbrances,
to Amalco, in consideration for a payment of cash from Amalco equal
to such fair value.
(b) A Dissenting Shareholder who duly exercises his, her or its rights
of dissent under section 185 of the OBCA and who is ultimately
determined not to be entitled, for any reason, to be paid fair value
for his, her or its Delex Shares, or who fails to perfect or
effectively withdraws such Delex Securityholder's claim under
section 185 of the OBCA, or who forfeits such Delex Securityholder's
right to make a claim under section 185 of the OBCA, or whose rights
as a Delex Securityholder are otherwise reinstated and the
Amalgamation is completed, shall be deemed to have participated in
the Amalgamation, as of the Effective Time, on the same basis as a
non-dissenting Delex Securityholder, but in no case shall YM,
Amalco, or any other Person be required to recognize any Dissenting
Shareholder as a Delex Securityholder after the Effective Time and
the names of each Dissenting Shareholder shall be deleted from the
register of Delex Securityholders at the Effective Time.
26. Filing of Documents
Provided that this Agreement has not otherwise been terminated, the Articles of
Amalgamation will be filed on the closing date contemplated in the Merger
Agreement promptly after the conditions specified in the Merger Agreement have
been satisfied or waived, together with any and all documents required by the
OBCA and the regulations thereunder.
27. Modifications of this Agreement
Subject to any requirements imposed by law or by a court of competent
jurisdiction, this Agreement may be amended, modified or superseded, and any of
the terms or conditions hereof may be waived, but only by written instrument
executed by Delex and Subco. No waiver of any nature, in any one or more
instances, shall be deemed or construed as a further continued waiver of any
condition or breach of any other term in this Agreement.
28. 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 and any action
or proceeding arising out of or relating to this Agreement may be initiated by
the parties in any court of competent jurisdiction in Canada.
29. Entire Agreement
This Agreement and the Merger Agreement constitute the entire agreement between
the parties pertaining to the subject matter of this Agreement. There are no
warranties, conditions or representations (including any that may be implied by
statute) and there are no agreements in connection with such subject matter
except as specifically set forth or referred to in this Agreement or the Merger
Agreement.
30. Counterparts
This Agreement may be signed in counterparts and each such counterpart shall
constitute an original document and such counterparts, taken together, shall
constitute one and the same instrument.
[signature page to follow]
IN WITNESS WHEREOF the parties have executed this Agreement as of the day
and year first above written.
YM BIOSCIENCES INC.
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Authorized Signatory
2069044 ONTARIO LIMITED
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Authorized Signatory
DELEX THERAPEUTICS INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Authorized Signatory
