EXHIBIT 2.1
THIS SHARE EXCHANGE AGREEMENT made as of the 15th day of September,
1998.
B E T W E E N:
GLYKO BIOMEDICAL LTD.,
a corporation incorporated under the laws of Canada,
(hereinafter called the "Vendor")
OF THE FIRST PART;
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BIOMARIN PHARMACEUTICAL INC.,
a corporation incorporated under the laws of the State of
Delaware,
(hereinafter called the "Purchaser")
OF THE SECOND PART.
WHEREAS the Vendor is the sole stockholder of Glyko, Inc., a Delaware
corporation, and desires to sell and to cause to be sold, and the Purchaser
desires to purchase from the Vendor all of the issued and outstanding shares of
capital stock of Glyko, Inc., upon the terms and conditions set forth in this
Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSETH in consideration of the mutual
covenants and agreements herein contained, and other good and valuable
consideration, Vendor and Purchaser represent, warrant, covenant and agree as
follows:
1. INTERPRETATION
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1.1 Defined Terms. Where used herein or in any amendments hereto, the
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following terms shall have the following meanings:
"AGREEMENT" means this Share Exchange Agreement, all Schedules attached
hereto and all amendments made hereto or thereto by written agreement
signed by each of Vendor and Purchaser;
"BIOMARIN SHARES" means 2,259,039 shares of Purchaser's Common Stock to be
issued in the name of Vendor as partial payment of the Purchase Price
pursuant to Section 2.2 hereof;
"BUSINESS DAY" means any day, which is not a Saturday, Sunday or a
statutory holiday in the Province of Ontario or the State of California;
"CLOSING" means the consummation of the Transaction as herein contemplated;
"CLOSING DATE" means October 7, 1998, or such other date as may be mutually
agreed upon by the parties hereto in writing for the closing of the
transactions contemplated by this Agreement;
"EFFECTIVE DATE" means September 15, 1998;
"EMPLOYEE OPTIONS" means the options to purchase a total of 585,969 shares
of Common Stock of the Vendor which are held by certain employees of Glyko,
Inc., which options shall be assumed by Purchaser and converted into
options to purchase 255,540 shares of Common Stock of Purchaser as
enumerated in Schedule "A" attached hereto;
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"ENCUMBRANCES" means any and all claims, liens, security interests,
mortgages, pledges, pre-emptive rights, charges, options, equity interests,
encumbrances, proxies, voting agreements, voting trusts or other interests
of any nature or kind whatsoever, howsoever created;
"GLYKO SHARES" means 3,882 shares of Common Stock and 2,000 shares of
Preferred Stock of Glyko, Inc., representing all of the issued and
outstanding capital stock of Glyko, Inc. as of the Closing Date;
"INTELLECTUAL PROPERTY" means all patents, patent applications and other
patent rights, trade secrets, copyrights and other proprietary rights as
listed on Schedule "B" hereto;
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"PERSON" includes an individual, partnership, association, unincorporated
organization, trust, corporation and a natural person acting in such
person's individual capacity or in such person's capacity as trustee,
executor, administrator, agent or other legal representative;
"PURCHASE PRICE" has the meaning attributed thereto in Section 2.2 hereof;
"TECHNOLOGY" means all know-how, processes, formulae, concepts, ideas,
data, technical and non-technical data and information, testing results,
descriptions, technologies, procedures, articles of manufacture,
compositions of matter (including pharmaceutical, chemical, biological,
genetic and biochemical compositions), designs, inventions, discoveries,
documents and works of authorship, whether or not patentable or patented,
now owned or licensed by Glyko, Inc.;
"TIME OF CLOSING" means 10:00 a.m. (San Francisco time) on the Closing
Date; and
"TRANSACTION" means the sale by the Vendor and the purchase by the
Purchaser of the Glyko Shares as contemplated herein.
1.2 Currency. Unless otherwise expressly provided, all dollar amounts referred
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to in this Agreement are in U.S. funds.
1.3 Gender and Number. Except where the context otherwise indicates, words
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importing the singular number only shall include the plural, and vice versa, and
words
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importing the masculine gender shall include the feminine and neutral genders,
and vice versa.
1.4 Division and Headings. The division of this Agreement into Articles and
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sections and the insertion of headings are for the convenience of reference only
and shall not affect the construction or interpretation of this Agreement . The
terms "this Agreement", "hereof", "hereunder", "hereto", "herein" and similar
expressions refer to this Agreement and not to any particular Article, section
or other portion of this Agreement and include any amendment 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.
1.5 To the knowledge of. The term "to the knowledge of" the appropriate party
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as used herein means to the knowledge of the current officers of the appropriate
party without any special inquiry or investigation whatsoever.
2. AGREEMENT TO EXCHANGE
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2.1 Transfer. Subject to the terms and conditions hereof, on the Closing Date
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at the Time of Closing, the Vendor shall deliver to the Purchaser certificates
representing the Glyko Shares together with such executed documentation as is
necessary and appropriate to effect the transfer of ownership of the Glyko
Shares from Vendor to Purchaser in exchange for good and valuable consideration
enumerated in Section 2.2 below.
2.2 Payment of Purchase Price. The purchase price for the Glyko Shares shall
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be equal to the sum of $14,500,500 (the "Purchase Price"). The Purchase Price
shall be paid and satisfied by Purchaser as follows: (i) the assumption by the
Purchaser of responsibility for the Employee Options as discussed in Section 2.3
below and as set forth on Schedule A attached hereto, having an aggregate value
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as enumerated therein, (ii) the delivery to the Vendor of a certificate
representing the BioMarin Shares issued in the name of Vendor, such BioMarin
Shares valued at $6.00 per share and (iii) a cash payment of $500.
2.3 Assumption of Stock Options. At the Effective Date, certain Employee
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Options outstanding under the Vendor's Share Option Plan - 1994 (the "Option
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Plan"), or otherwise, shall be assumed by Purchaser as follows:
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(i) At the Effective Date, certain Employee Options listed on Schedule A
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attached hereto, whether vested or unvested, shall be, in connection with the
Transaction, assumed by Purchaser. Each Employee Option so assumed by Purchaser
under this Agreement shall continue to have, and be subject to, the same terms
and conditions set forth in the Option Plan, except that: (A) each Employee
Option shall be exercisable for that number of whole shares of Common Stock of
Purchaser equal to the product of the number of shares of Common Stock of Vendor
that were issuable upon exercise of such Employee Option immediately prior to
the Effective Date multiplied by the Conversion Ratio, as defined in
subparagraph (ii) below, rounded down to the nearest whole number of shares of
Common Stock of Purchaser and (B) the per share exercise price for the shares of
Common Stock of Purchaser issuable upon exercise of such assumed Employee Option
shall be equal to the quotient determined by dividing the exercise price per
share of Common Stock of Vendor at which such Employee Option was exercisable
immediately prior to the Effective Date by the Conversion Ratio, rounded up to
the nearest whole cent; and
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(ii) For the purposes of this Section 2.3, the Conversion Ratio shall be
equal to the quotient of the fair market value of a share of Common Stock of
Vendor (converted to U.S. dollars), $2.61659, divided by the current fair market
value of a share of Common Stock of Purchaser, $6.00, which quotient is equal to
.436098.
It is the intention of the parties that the Employee Options assumed by
Purchaser qualify following the Effective Date as incentive stock options as
defined in Section 422 of the Code to the extent that the Employee Options
qualified as incentive stock options immediately prior to the Effective Date.
Promptly following the Effective Date, Purchaser will issue to each holder
of an outstanding Employee Option a document evidencing the foregoing assumption
of such Employee Option by Purchaser.
2.4 Closing. The Closing shall occur at the Time of Closing on the Closing
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Date at the offices of the Vendor, or at such other place or other time and date
as the Purchaser and the Vendor may agree.
Any document or instrument to be delivered by either party hereto at the
Closing shall be tabled at the Closing at the place of closing referred to above
by the party which is to deliver such document or instrument and any document or
instrument so tabled by a party hereto shall:
(a) be deemed to have been delivered by such party for the purposes of
this Agreement;
(b) be held in escrow by counsel for such party to be dealt with in
accordance with subparagraphs (c) and (d) below;
(c) be delivered to the party to which it is to be delivered pursuant to
the terms hereof, if all documents or instruments which are to be
delivered at the Closing are tabled in accordance with this section at
the Closing; and
(d) be delivered to, or in accordance with the directions of, the party
which tabled it, if subparagraph (c) does not apply.
3. REPRESENTATIONS AND WARRANTIES OF THE VENDOR
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Except as set forth in the disclosure schedule attached hereto as Schedule
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"C," the Vendor hereby represents and warrants to the Purchaser as follows as of
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the date hereof and acknowledges and confirms that the Purchaser is relying upon
such representations and warranties in connection with the transactions
contemplated hereby:
(a) Attached hereto as Schedule "D" are Glyko, Inc.'s unaudited balance
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sheet as of June 30, 1998 and the related unaudited statements of
income and cash flow for the six (6) month period ended June 30, 1998
(collectively, the "Financials"). The Financials are correct in all
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material respects and have been prepared in accordance with United
States generally accepted accounting principles ("GAAP") consistently
applied on a basis consistent throughout the periods indicated and
consistent with each other (except that the Financials do not contain
footnotes and other
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presentation items that may be required by GAAP). The Financials
present fairly the financial condition, operating results and cash
flows of Glyko, Inc. as of the dates and during the periods indicated
therein, subject to normal year-end adjustments, which normal year-end
adjustments have not been material in amount or significance in any
individual case or in the aggregate in prior years. Glyko, Inc.'s
unaudited balance sheet as of June 30, 1998, is referred to
hereinafter as the "Current Balance Sheet."
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(b) Glyko, Inc. has no liability, indebtedness, obligation, expense,
claim, deficiency, guaranty or endorsement of any type, whether
accrued, absolute, contingent, matured, unmatured or other (whether or
not required to be reflected in financial statements in accordance
with GAAP), which individually or in the aggregate (i) has not been
reflected in the Current Balance Sheet, or (ii) has not arisen in the
ordinary course of business consistent with past practices since June
30, 1998, in either case which amounts do not exceed $50,000 in the
aggregate.
(c) Since June 30, 1998, there has not been, occurred or arisen any:
(i) transaction by Glyko, Inc. except in the ordinary course of
business as conducted on that date and consistent with past
practices;
(ii) amendments or changes to the Certificate of Incorporation or
Bylaws of Glyko, Inc.;
(iii) capital expenditure or commitment by Glyko, Inc. exceeding
$25,000 individually or $50,000 in the aggregate;
(iv) destruction of, damage to or loss of any material assets,
material business or material customer of Glyko, Inc. (whether
or not covered by insurance);
(v) claim of wrongful discharge or other unlawful labor practice or
action;
(vi) change in accounting methods or practices (including any change
in depreciation or amortization policies or rates) by Glyko,
Inc. other than required by GAAP;
(vii) revaluation by Glyko, Inc. of any of its assets which, in the
aggregate, changed such value by an amount exceeding $5,000,
either individually or in the aggregate;
(viii) declaration, setting aside or payment of a dividend or other
distribution (whether in cash, stock or property) in respect of
any capital stock of Glyko, Inc., or any split, combination or
reclassification in respect of any shares of capital stock of
Glyko, Inc., or any issuance or authorization of any issuance
of any other securities in respect of, in lieu of or in
substitution for shares of capital stock of Glyko, Inc., or any
direct or indirect repurchase, redemption, or other acquisition
by Glyko, Inc. of any shares of capital stock of Glyko, Inc.
(or options, warrants or other rights convertible into,
exercisable or exchangeable therefor), except in
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accordance with the agreements evidencing option grants by
Glyko, Inc.;
(ix) except in the ordinary course of its business as conducted on
June 30, 1998, increase in the salary or other compensation
payable or to become payable by Glyko, Inc. to any of its
officers, directors, employees or advisors, or the declaration,
payment or commitment or obligation of any kind for the
payment, by Glyko, Inc., of a bonus or other additional salary
or compensation to any such person;
(x) agreement, contract, covenant, instrument, lease, license or
commitment to which Glyko, Inc. is a party or by which it or
any of its assets (including but not limited to the
Intellectual Property and intangible assets) are bound or any
termination, extension, amendment or modification the terms of
any agreement, contract, covenant, instrument, lease, license
or commitment to which Glyko, Inc. is a party or by which it or
any of its assets are bound;
(xi) sale, lease, license or other disposition of any of the
material assets or properties of Glyko, Inc. or any creation of
any security interest in such assets or properties;
(xii) loan by Glyko, Inc. to any person or entity, incurring by
Glyko, Inc. of any indebtedness, guaranteeing by Glyko, Inc. of
any indebtedness, issuance or sale of any debt securities of
Glyko, Inc. or guaranteeing of any debt securities of others,
except for advances to employees for travel and business
expenses in the ordinary course of business consistent with
past practices;
(xiii) waiver or release of any right or claim of Glyko, Inc.,
including any write-off or other compromise of any account
receivable of Glyko, Inc. which, in the aggregate, had a value
of at least $5,000;
(xiv) written notice received by Vendor or Glyko, Inc. of the
commencement or threat of any lawsuit, proceeding or other
investigation against Glyko, Inc. or its affairs, or, to the
knowledge of Vendor, the commencement, notice or threat of any
lawsuit or proceeding or other investigation against Glyko,
Inc. or its affairs;
(xv) written notice received by Vendor or Glyko, Inc. of any claim
or potential claim of ownership by any person other than Glyko,
Inc. of the Intellectual Property or of infringement by Glyko,
Inc. of any other person's intellectual property or, to the
knowledge of Vendor, notice of such in any other form other
than written documentation;
(xvi) issuance or sale, or contract to issue or sell, by Glyko, Inc.
of any shares of capital stock of Glyko, Inc. or securities
convertible into, or exercisable or exchangeable for, shares of
capital stock of Glyko, Inc., or any securities, warrants,
options or rights to purchase any of the foregoing;
(xvii) (i) sale or license of any of the Intellectual Property or
entering into of any agreement with respect to the Intellectual
Property with any person or entity or with respect to the
intellectual property of any person or entity, or (ii) purchase
or license of any of the Intellectual Property or entering into
of any agreement with respect to the intellectual property of
any
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person or entity, or (iii) change in pricing or royalties set
or charged by Glyko, Inc. to its customers or licensees or in
pricing or royalties set or charged by persons who have
licensed any of the Intellectual Property to Glyko, Inc.;
(xviii)any event or condition of any character that has had or is
reasonably likely to have a material adverse effect on Glyko,
Inc.; or
(xix) agreement by Glyko, Inc. or any officer or employees thereof to
do any of the things described in the preceding clauses (i)
through (xviii)
(d) Neither the execution and delivery of this Agreement by the Vendor nor
the consummation of the transactions herein contemplated will conflict
with or result in:
(i) a violation, contravention or breach by the Vendor or Glyko,
Inc. of any of the terms, conditions or provisions of any
agreement or instrument to which the Vendor or Glyko, Inc. is a
party, or by which the Vendor or Glyko, Inc. is bound or
constitute a default by the Vendor or Glyko, Inc. thereunder,
or under any statute, regulation, judgment, decree or law by
which the Vendor or Glyko, Inc. is subject or bound, or result
in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the Glyko
Shares or any of the Intellectual Property; or
(ii) a violation by the Vendor or Glyko, Inc. of any law or
regulation or any applicable order of any court, arbitrator or
governmental authority having jurisdiction over the Vendor or
Glyko, Inc. , or require the Vendor or Glyko, Inc., prior to
the Closing or as a condition precedent thereof, to make any
governmental or regulatory filings, obtain any consent,
authorization, approval, clearance or other action by any
Person, or await the expiration of any applicable waiting
period.
(e) The Glyko Shares are duly and validly created, authorized and issued
and are fully paid and non-assessable.
(f) No Person has any agreement or option or any right or privilege
(whether pre-emptive or contractual) which is or is capable of
becoming an agreement or option for the purchase from the Vendor of
any of the Glyko Shares or any of the Intellectual Property.
(g) Glyko, Inc. is not a party to nor is it bound by:
(i) any written employment or consulting agreement, contract or
commitment with an employee or individual consultant or
salesperson or consulting or sales agreement, contract or
commitment with a firm or other organization, or employee
benefit plan, option plan or option agreement;
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(ii) any agreement or plan, including, without limitation, any stock
option plan, stock appreciation rights plan or stock purchase
plan, any of the benefits of which will be increased, or the
vesting of benefits of which will be accelerated, by the
occurrence of any of the transactions contemplated by this
Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated
by this Agreement (for the purposes of this Section 3(g)(ii),
such agreement or plan shall include any agreement or plan of
Vendor being assumed by Purchaser pursuant to Section 2.2(i)
hereof);
(iii) any fidelity or surety bond or completion bond;
(iv) any lease of real or personal property having a value in excess
of $25,000 individually or $50,000 in the aggregate;
(v) any agreement, contract or commitment containing any covenant
limiting the freedom of Glyko, Inc. to engage in any line of
business or to compete with any person,
(vi) any agreement, contract or commitment relating to capital
expenditures and involving future payments in excess of $25,000
individually or $50,000 in the aggregate;
(vii) any agreement, contract or commitment relating to the
disposition or acquisition of assets or any interest in any
business enterprise outside the ordinary course of Glyko,
Inc.'s business;
(viii) any mortgages, indentures, loans or credit agreements, security
agreements or other agreements or instruments relating to the
borrowing of money or extension of credit;
(ix) any purchase order or contract for the purchase of materials
involving in excess of $25,000 individually or $50,000 in the
aggregate;
(x) any construction contracts in excess of $10,000 individually or
$20,000 in the aggregate;
(xi) any dealer, distribution, joint marketing or development
agreement;
(xii) any sales representative, original equipment manufacturer,
value added remarketer, reseller or independent vendor or other
agreement for use or distribution of Glyko, Inc.'s products,
technology or services; or
(xiii) any other agreement, contract or commitment that involves
$25,000 individually or $50,000 in the aggregate or more and is
not cancelable without penalty within thirty (30) days.
(h) Glyko, Inc. is in compliance with and has not breached, violated or
defaulted under, or received notice that it has breached, violated or
defaulted under, any of the terms or conditions of any material
agreement, contract, covenant, instrument, lease, license or
commitment to which
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Glyko, Inc. is a party or by which it is bound (collectively a
"Contract"), nor is Glyko, Inc. aware of any event that would
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constitute such a breach, violation or default with the lapse of time,
giving of notice or both. Each Contract is in full force and effect
and Glyko, Inc. is not subject to any default thereunder, nor to the
knowledge of Glyko, Inc. is any party obligated to Glyko, Inc.
pursuant to any such Contract subject to any default thereunder.
Following the Closing Date, Glyko, Inc. will be permitted to exercise
all of Glyko, Inc.'s rights under the Contracts without the payment of
any additional amounts or consideration other than ongoing fees,
royalties or payments which Glyko, Inc. would otherwise be required to
pay had the transactions contemplated by this Agreement not occurred.
(i) The Vendor has all necessary power, authority and capacity to enter
into this Agreement and all other agreements and instruments to be
executed by it as contemplated by this Agreement and to carry out its
obligations under this Agreement and such other agreements and
instruments. The execution and delivery of this Agreement and such
other agreements and instruments and the consummation of the
transactions contemplated hereby and such other agreements and
instruments have been duly authorized by all necessary corporate
action on the part of the Vendor.
(j) This Agreement constitutes a valid and binding obligation of the
Vendor enforceable against the Vendor in accordance with its terms
subject, however, to limitations with respect to enforcement imposed
by law in connection with bankruptcy, insolvency, reorganization or
other laws affecting creditors' rights generally and to the extent
that equitable remedies such as specific performance and injunctions
are only available in the discretion of the court from which they are
sought.
(k) The Vendor is the record and beneficial owner of the Glyko Shares and
has good and marketable title thereto free and clear of any
Encumbrances. The Vendor has the exclusive right and full power to
transfer the Glyko Shares to the Purchaser as herein contemplated free
and clear of any Encumbrances.
(l) Intellectual Property:
(i) Glyko, Inc. owns all right, title and interest in and to the
Intellectual Property with good and marketable title thereto,
free and clear of all Encumbrances;
(ii) Glyko, Inc. is entitled to make use of or otherwise exploit the
Intellectual Property (including without limitation the right
to derivatives and improvements thereto) without payment of any
royalty or other amounts;
(iii) Glyko, Inc. is under no obligation to obtain any approval or
consent for use of or other exploitation (including without
limitation enforcement, assignment, license, sublicense or
other transfer) of the Intellectual Property; (iv) no charge,
complaint action, suit, proceeding, hearing, investigation,
claim or demand is pending or threatened which challenges the
legality, validity, enforceability, use or ownership by Glyko,
Inc. of any of the Intellectual Property;
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(iv) no charge, complaint action, suit, proceeding, hearing,
investigation, claim or demand is pending or threatened which
challenges the legality, validity, enforceability, use or
ownership by Glyko, Inc. of any of the Intellectual Property;
(v) the Intellectual Property represents all intellectual property
rights (including without limitation patents, patent
applications, trademarks, trademark applications, service
marks, service xxxx applications, trade names, copyrights,
manufacturing process, trade secrets) which are reasonably
necessary or material to the conduct of Glyko, Inc.'s business
as presently conducted;
(vi) neither the Intellectual Property , the Technology nor the use
or exploitation thereof would infringe any patent, copyright,
trade secret or other proprietary right owned or controlled by
Vendor and no basis for such claim exists and neither Vendor
nor Glyko, Inc. has received notice, written or otherwise, of
such a claim of infringement by any third party;
(vii) the Intellectual Property is not subject to any outstanding
judgment, order decree, stipulation, injunction or charge nor
the subject matter or any charge, complaint, action, suit,
proceeding of any Federal, state, local or foreign jurisdiction
or before any arbitrator;
(viii) Glyko, Inc. has not given or otherwise communicated to any
entity any notice, charge, claim or assertion of any present,
impending or threatened infringement by such other entity of
any of the Intellectual Property;
(ix) Glyko, Inc. has taken all steps that are reasonably required to
protect Glyko, Inc.'s rights in confidential information and
trade secrets of Glyko, Inc. or provided by any other entity to
Glyko, Inc. Without limiting the foregoing, Glyko, Inc. has,
and enforces, a policy requiring each employee, consultant and
contractor to execute proprietary information, confidentiality
and assignment agreements in Glyko, Inc.'s standard forms, and
all current and former employees, consultants and contractors
of Glyko, Inc. have executed such an agreement. A copy of such
agreement has been provided to counsel for Purchaser; and
(x) the Intellectual Property has not been licensed to or licensed
from any third party or the Vendor.
(m) To the knowledge of the Vendor, there is not pending, threatened or
contemplated, any suit, action, legal proceeding, litigation or
governmental investigation of any sort relating to Glyko, Inc., the
Glyko Shares, the Intellectual Property or the Transaction, nor is
there any present state of facts or circumstances which can be
reasonably anticipated to be a basis for any such suit, action, legal
proceeding, litigation or governmental investigation nor is there
presently outstanding against Glyko, Inc., any judgment, decree,
injunction, rule or order of any court, governmental department,
commission, agency, instrumentality, or arbitrator, to which the
Vendor or Glyko, Inc. is a party or to which the property of the
Vendor or Glyko, Inc. is subject that would result individually or in
the aggregate in
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any material adverse change in the operation, business, condition,
income or future prospects of the Vendor or Glyko, Inc.
(n) No order ceasing or suspending trading in securities of Glyko, Inc. or
prohibiting the sale of securities by Glyko, Inc. has been issued and
no proceedings for this purpose have been instituted, or are pending,
or, to the knowledge of the Vendor, are contemplated or threatened.
(o) Glyko, Inc. has not, directly or indirectly, declared or paid any
dividend or declared or made any other distribution on any of its
shares or securities or, directly or indirectly, redeemed, purchased
or otherwise acquired any of its shares or securities or agreed to do
any of the foregoing.
(p) The Vendor has not entered into any agreement that would entitle any
person to any valid claim against the Purchaser for a broker's
commission, finder's fee, or any like payment in respect of the sale
of the Glyko Shares or the purchase of the BioMarin Shares or any
other matters contemplated by this Agreement.
(q) Glyko, Inc. has not received any notices of violation with respect to,
any foreign, federal, state or local statute, law or regulation,
including without limitation environmental laws and regulations and,
to the knowledge of Vendor, Glyko, Inc. has complied with and is not
in violation of any of the foregoing.
(r) None of the foregoing representations and warranties knowingly
contains any untrue statement of material fact or knowingly omits to
state any material fact necessary to make any such representation or
warranty not misleading to a prospective purchaser of the Glyko Shares
seeking full information as to the Glyko Shares and the Intellectual
Property.
(s) Vendor has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the
purchase of the BioMarin Shares pursuant to this Agreement and of
protecting the Vendor's interests in connection herewith. Vendor has
the ability to bear the economic risk of the investment, including
complete loss of the investment.
(t) Vendor is acquiring the BioMarin Shares for investment for its own
account, not as a nominee or agent, and not with a view to, or for
resale in connection with, any distribution thereof, and Vendor has no
present intention of selling, granting any participation in, or
otherwise distributing the same. Vendor understands that the BioMarin
Shares have not been registered under the Securities Act of 1933, as
amended (the "Securities Act") but have been issued pursuant to a
specific exemption from the registration provisions of the Securities
Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of Vendor's representations as
expressed herein.
(u) Vendor understands that the BioMarin Shares are characterized as
"restricted securities" under U.S. federal securities laws inasmuch as
they are being acquired from Purchaser in a transaction not involving
a public offering and that under such laws and applicable regulations
the BioMarin Shares may be resold without registration under the
Securities Act only in
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certain limited circumstances. Vendor acknowledges that the BioMarin
Shares must be held indefinitely unless subsequently registered under
the Securities Act or an exemption from such registration is
available. Vendor is aware of the provisions of Rule 144 promulgated
under the Securities Act which permits limited resale of shares
purchased in a private placement subject to the satisfaction of
certain conditions.
(v) Vendor understands that the BioMarin Shares may be subject to a lock-
up period of up to 180 days following the effective date a
Registration Statement filed under the Securities Act, pursuant to
Section 7 of the Amended and Restated Registration Rights Agreement
attached hereto as Schedule "E".
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(w) Vendor understands that no public market now exists for the Common
Stock of Purchaser or for any other securities issued by Purchaser and
that there is no assurance that a public market will ever exist for
the BioMarin Shares.
(x) Without in any way limiting the representations set forth above,
Vendor further agrees not to make any offer or sale of all or any
portion of the BioMarin Shares within the United States or to a U.S.
resident unless and until;
(i) There is then in effect a Registration Statement under the
Securities Act covering such proposed offer or sale and such
offer or sale is made in accordance with such Registration
Statement; or
(ii) Vendor shall have notified Purchaser of the proposed offer or
sale and shall have furnished Purchaser with a detailed
statement of the circumstances surrounding the proposed
disposition, and if reasonably requested by the Purchaser,
Vendor shall have furnished Purchaser with an opinion of
counsel, reasonably satisfactory to Purchaser, that such offer
or sale is exempt from the registration requirements under the
Securities Act.
(y) The certificate representing the BioMarin Shares, and any securities
issued in respect thereof or exchange therefor shall bear legends
substantially in the following forms (in addition to any legend
required under applicable state securities laws):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF. SUCH SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE CORPORATION
RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING
THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT. COPIES OF THE
AGREEMENTS COVERING THE PURCHASE OF THESE SECURITIES AND RESTRICTING
THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY
-12-
OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
CORPORATION.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCKUP
PERIOD OF 180 DAYS FOLLOWING THE EFFECTIVE DATE OF A REGISTRATION
STATEMENT OF THE COMPANY FILED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE ISSUER AND THE
ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED
AT THE PRINCIPAL OFFICE OF THE CORPORATION. SUCH LOCKUP PERIOD IS
BINDING ON TRANSFEREES OF THESE SECURITIES."
(z) Vendor presently does and will as of the Closing Date qualify as an
"accredited investor" within the meaning of Rule 501(a) promulgated
under the Securities Act and meets the relevant criteria indicated on
its completed and signed copy of the Accredited Investor Questionnaire
attached hereto as Schedule "F".
------------
(aa) Immediately following the Closing, Vendor will not own any material
asset other than 10,917,091 shares of Common Stock of Purchaser. For
avoidance of any doubt, immediately following the Closing Vendor will
not own any right, title or other interest in or to any intellectual
property rights (including without limitation domestic and foreign
patents, patent applications, trademarks (other than "Glyko BioMedical
Limited"), trade xxxx applications, trade names (other than "Glyko
BioMedical Limited"), copyrights or trade secrets).
(bb) All inter-company debt and equity accounts between Vendor and Glyko,
Inc., have been settled on or before the Closing Date.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
-----------------------------------------------
Except as set forth in the disclosure schedule attached hereto as Schedule
--------
G, the Purchaser hereby represents and warrants to the Vendor as follows as of
-
the date hereof and acknowledges and confirms that the Vendor is relying upon
such representations and warranties in connection with the transactions
contemplated hereby:
(a) Attached hereto as Schedule "H" are Purchaser's unaudited balance
-----------
sheet as of June 30, 1998 and the related unaudited statements of
income and cash flow for the six (6) month period ended June 30, 1998
(collectively, the "Financials"). The Financials are correct in all
----------
material respects and have been prepared in accordance with United
States generally accepted accounting principles ("GAAP") consistently
applied on a basis consistent throughout the periods indicated and
consistent with each other (except that the Financials do not contain
footnotes and other presentation items that may be required by GAAP).
The Financials present fairly the financial condition, operating
results and cash flows of Purchaser as of the dates and during the
periods indicated therein, subject to normal year-end adjustments,
which normal year-end adjustments have not been material in amount or
significance in any individual case or in the aggregate in prior
years. Purchaser's unaudited
-13-
balance sheet as of June 30, 1998, is referred to hereinafter as the
"Current Balance Sheet."
---------------------
(b) Glyko, Inc. has no liability, indebtedness, obligation, expense,
claim, deficiency, guaranty or endorsement of any type, whether
accrued, absolute, contingent, matured, unmatured or other (whether or
not required to be reflected in financial statements in accordance
with GAAP), which individually or in the aggregate (i) has not been
reflected in the Current Balance Sheet, or (ii) has not arisen in the
ordinary course of business consistent with past practices since June
30, 1998, in either case which amounts do not exceed $50,000 in the
aggregate.
(c) Since June 30, 1998, there has not been, occurred or arisen any:
(i) transaction by Purchaser except in the ordinary course of
business as conducted on that date and consistent with past
practices;
(ii) amendments or changes to the Certificate of Incorporation or
Bylaws of Purchaser;
(iii) capital expenditure or commitment by Purchaser exceeding
$25,000 individually or $50,000 in the aggregate;
(iv) destruction of, damage to or loss of any material assets,
material business or material customer of Purchaser (whether or
not covered by insurance);
(v) claim of wrongful discharge or other unlawful labor practice or
action;
(vi) change in accounting methods or practices (including any change
in depreciation or amortization policies or rates) by Purchaser
other than required by GAAP;
(vii) revaluation by Purchaser of any of its assets which, in the
aggregate, changed such value by at least $5,000;
(viii) declaration, setting aside or payment of a dividend or other
distribution (whether in cash, stock or property) in respect of
any capital stock of Purchaser, or any split, combination or
reclassification in respect of any shares of capital stock of
Purchaser, or any issuance or authorization of any issuance of
any other securities in respect of, in lieu of or in
substitution for shares of capital stock of Purchaser, or any
direct or indirect repurchase, redemption, or other acquisition
by Purchaser of any shares of capital stock of Purchaser (or
options, warrants or other rights convertible into, exercisable
or exchangeable therefor), except in accordance with the
agreements evidencing option grants by Purchaser;
(ix) except in the ordinary course of its business as conducted on
June 30, 1998, increase in the salary or other compensation
payable or to become payable by Purchaser to any of its
officers, directors, employees or advisors, or the declaration,
payment or commitment
-14-
or obligation of any kind for the payment, by Purchaser, of a
bonus or other additional salary or compensation to any such
person;
(x) agreement, contract, covenant, instrument, lease, license or
commitment to which Purchaser is a party or by which it or any
of its assets (including but not limited to the intellectual
property of Purchaser and intangible assets) are bound or any
termination, extension, amendment or modification the terms of
any agreement, contract, covenant, instrument, lease, license
or commitment to which Purchaser is a party or by which it or
any of its assets are bound;
(xi) sale, lease, license or other disposition of any of the
material assets or properties of Purchaser or any creation of
any security interest in such assets or properties;
(xii) loan by Purchaser to any person or entity, incurring by
Purchaser of any indebtedness, guaranteeing by Purchaser of any
indebtedness, issuance or sale of any debt securities of
Purchaser or guaranteeing of any debt securities of others,
except for advances to employees for travel and business
expenses in the ordinary course of business consistent with
past practices;
(xiii) waiver or release of any right or claim of Purchaser, including
any write-off or other compromise of any account receivable of
Purchaser which, in the aggregate, had a value of a least
$5,000;
(xiv) written notice of the commencement or threat of any lawsuit,
proceeding or other investigation against Purchaser or its
affairs, or, to the knowledge of Purchaser, the commencement,
notice or threat of any lawsuit or proceeding or other
investigation against Purchaser or its affairs;
(xv) written notice of any claim or potential claim of ownership by
any person other than Purchaser of the intellectual property of
Purchaser or of infringement by Purchaser of any other person's
intellectual property or, to the knowledge of Purchaser, notice
of such in any other form other than written documentation;
(xvi) issuance or sale, or contract to issue or sell, by Purchaser of
any shares of capital stock of Purchaser or securities
convertible into, or exercisable or exchangeable for, shares of
capital stock of Purchaser, or any securities, warrants,
options or rights to purchase any of the foregoing;
(xvii) (i) sale or license of any of the intellectual property of
Purchaser or entering into of any agreement with respect to the
intellectual property of Purchaser with any person or entity or
with respect to the intellectual property of any person or
entity, or (ii) purchase or license of any of the intellectual
property of Purchaser or entering into of any agreement with
respect to the intellectual property of any person or entity,
or (iii) change in pricing or
-15-
royalties set or charged by Purchaser to its customers or
licensees or in pricing or royalties set or charged by persons
who have licensed any of the intellectual property of Purchaser
to Purchaser;
(xviii)any event or condition of any character that has had or is
reasonably likely to have a material adverse effect on
Purchaser; or
(xix) agreement by Purchaser or any officer or employees thereof to
do any of the things described in the preceding clauses (i)
through (xviii).
(d) Purchaser is not a party to nor is it bound by:
(i) any written employment or consulting agreement, contract or
commitment with an employee or individual consultant or
salesperson or consulting or sales agreement, contract or
commitment with a firm or other organization, or employee
benefit plan, option plan or option agreement;
(ii) any agreement or plan, including, without limitation, any stock
option plan, stock appreciation rights plan or stock purchase
plan, any of the benefits of which will be increased, or the
vesting of benefits of which will be accelerated, by the
occurrence of any of the transactions contemplated by this
Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated
by this Agreement;
(iii) any fidelity or surety bond or completion bond;
(iv) any lease of real or personal property having a value in excess
of $25,000 individually or $50,000 in the aggregate;
(v) any agreement, contract or commitment containing any covenant
limiting the freedom of Purchaser to engage in any line of
business or to compete with any person,
(vi) any agreement, contract or commitment relating to capital
expenditures and involving future payments in excess of $25,000
individually or $50,000 in the aggregate;
(vii) any agreement, contract or commitment relating to the
disposition or acquisition of assets or any interest in any
business enterprise outside the ordinary course of Purchaser's
business;
(viii) any mortgages, indentures, loans or credit agreements, security
agreements or other agreements or instruments relating to the
borrowing of money or extension of credit;
(ix) any purchase order or contract for the purchase of materials
involving in excess of $25,000 individually or $50,000 in the
aggregate;
(x) any construction contracts in excess of $10,000 individually or
$20,000 in the aggregate;
-16-
(xi) any dealer, distribution, joint marketing or development
agreement;
(xii) any sales representative, original equipment manufacturer,
value added remarketer, reseller or independent vendor or other
agreement for use or distribution of Purchaser's products,
technology or services; or
(xiii) any other agreement, contract or commitment that involves
$25,000 individually or $50,000 in the aggregate or more and is
not cancelable without penalty within thirty (30) days.
(e) Purchaser is in compliance with and has not breached, violated or
defaulted under, or received notice that it has breached, violated or
defaulted under, any of the terms or conditions of any material
agreement, contract, covenant, instrument, lease, license or
commitment to which Purchaser is a party or by which it is bound
(collectively a "Purchaser Contract"), nor is Purchaser aware of any
------------------
event that would constitute such a breach, violation or default with
the lapse of time, giving of notice or both. Each Purchaser Contract
is in full force and effect and Purchaser is not subject to any
default thereunder, nor to the knowledge of Purchaser is any party
obligated to Purchaser pursuant to any such Purchaser Contract subject
to any default thereunder. Following the Closing Date, Purchaser will
be permitted to exercise all of Purchaser's rights under the Purchaser
Contracts without the payment of any additional amounts or
consideration other than ongoing fees, royalties or payments which
Purchaser would otherwise be required to pay had the transactions
contemplated by this Agreement not occurred.
(f) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on behalf of the Purchaser and this
Agreement has been duly executed and delivered by the Purchaser and is
a valid and binding obligation of the Purchaser.
(g) At the Time of Closing the BioMarin Shares will be duly and validly
created, authorized and issued as fully paid and non-assessable
shares, and the shares of Common Stock of Purchaser issuable upon
exercise of the options set forth on Schedule A shall, upon exercise
----------
in accordance with their terms, be duly and validly created,
authorized and issued as fully paid and non-assessable shares.
(h) Neither the execution and delivery of this Agreement by the Purchaser
nor the consummation of the transactions contemplated hereby will
conflict with or result in or create a state of facts which after
notice or lapse of time or delay or both, will conflict with or result
in:
(i) a violation, contravention or breach by the Purchaser of any of
the terms, conditions or provisions of the Restated Certificate
of Incorporation, Bylaws or resolutions of the Purchaser or of
any agreement or instrument to which the Purchaser is a party
or by which it is bound or constitute a default of the
Purchaser thereunder, or of any statute, regulation, judgment,
decree or law by which the Purchaser or the assets of the
Purchaser are subject
-17-
or bound, or result in the creation or imposition of any
Encumbrance upon any of the BioMarin Shares; or
(ii) a violation by the Purchaser of any law or regulation or any
applicable order of any court, arbitrator or governmental
authority having jurisdiction over the Purchaser, or require
the Purchaser, prior to the Closing or as a condition precedent
thereof, to make any governmental or regulatory filings, obtain
any consent, authorization, approval, clearance or other action
by any Person or await the expiration of any applicable waiting
period.
(i) The authorized capital stock of the Purchaser consists of 30, 000,000
shares of Common Stock. Immediately prior to the Closing, 23,916,483
shares of Common Stock are issued and outstanding, all of which have
been duly authorized and validly issued, are fully paid and
nonassessable. Warrants to purchase 801,500 shares of Common Stock are
currently outstanding. Immediately prior to the Closing, the Board of
Directors has approved the grant of options to purchase a total of
2,304,120 shares of Common Stock to outside consultants, directors and
employees. There are no other options, warrants, conversion
privileges, pre-emptive rights (other than the pre-emptive rights
agreement between Glyko Biomedical Ltd. and the Purchaser dated June
27, 1997, the pre-emptive rights agreement between BB BioVentures L.P.
and the Purchaser dated December 30, 1997, and the pre-emptive rights
agreement between Genzyme Corporation and the Purchaser dated
September 4, 1998) presently outstanding to purchase or otherwise
acquire any capital stock or other securities of the Company;
(j) To the knowledge of the Purchaser, there is not pending, threatened or
contemplated, any suit, action, legal proceeding, litigation or
governmental investigation of any sort relating to the Purchaser or
the BioMarin Shares, nor is there any present state of facts or
circumstances which can be reasonably anticipated to be a basis for
any such suit, action, legal proceeding, litigation or governmental
investigation nor is there presently outstanding against the
Purchaser, any judgment, decree, injunction, rule or order of any
court, governmental department, commission, agency, instrumentality,
or arbitrator, to which the Purchaser is a party or to which the
property of the Purchaser is subject that would result individually or
in the aggregate in any material adverse change in the operation,
business, condition, income or future prospects of the Purchaser.
(k) No order ceasing or suspending trading in securities of the Purchaser
or prohibiting the sale of securities by the Purchaser has been issued
and no proceedings for this purpose have been instituted, or are
pending, or, to the knowledge of the Purchaser, are contemplated or
threatened.
(l) Neither the Restated Certificate of Incorporation or Bylaws of the
Purchaser nor any agreement, mortgage, note, debenture, indenture or
other instrument or document to which the Purchaser is a party,
contain any restriction upon or impediment to the declaration or
payment of dividends by the directors of the Purchaser or the payment
of dividends by the Purchaser to the holders of the BioMarin Shares.
-18-
(m) Upon execution of the Amended and Restated Registration Rights
Agreement, attached hereto as Schedule "E," Vendor shall have
-----------
registration rights with regard to the BioMarin Shares, as enumerated
therein.
(n) The Purchaser has not entered into any agreement that would entitle
any person to any valid claim against the Vendor for a broker's
commission, finder's fee, or any like payment in respect of the
purchase of the Glyko Shares or the sale of the BioMarin Shares or any
other matters contemplated by this Agreement.
(o) Purchaser has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the
purchase of the Glyko Shares pursuant to this Agreement and of
protecting the Purchaser's interests in connection herewith. Purchaser
has the ability to bear the economic risk of the investment, including
complete loss of the investment.
(p) Purchaser is acquiring the Glyko Shares for investment for its own
account, not as a nominee or agent, and not with a view to, or for
resale in connection with, any distribution thereof, and Purchaser has
no present intention of selling, granting any participation in, or
otherwise distributing the same. Purchaser understands that the Glyko
Shares have not been registered under the Securities Act of 1933, as
amended (the "Securities Act") but have been issued pursuant to a
specific exemption from the registration provisions of the Securities
Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of Purchaser 's representations
as expressed herein.
(q) Purchaser understands that the Glyko Shares are characterized as
"restricted securities" under U.S. federal securities laws and that
under such laws and applicable regulations the Glyko Shares may be
resold without registration under the Securities Act only in certain
limited circumstances. Purchaser acknowledges that the Glyko Shares
must be held indefinitely unless subsequently registered under the
Securities Act or an exemption from such registration is available.
Purchaser is aware of the provisions of Rule 144 promulgated under the
Securities Act which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions.
(r) Purchaser understands that no public market now exists for the Common
Stock of Glyko, Inc. or for any other securities issued by Glyko, Inc.
and that there is no assurance that a public market will ever exist
for the Glyko Shares.
(s) Without in any way limiting the representations set forth above,
Purchaser further agrees not to make any offer or sale of all or any
portion of the Glyko Shares within the United States or to a U.S.
resident unless and until;
(i) There is then in effect a Registration Statement under the
Securities Act covering such proposed offer or sale and such
offer or sale is made in accordance with such Registration
Statement; or
-19-
(ii) Purchaser shall have notified Glyko, Inc. of the proposed offer
or sale and shall have furnished Glyko, Inc. with a detailed
statement of the circumstances surrounding the proposed
disposition, and if reasonably requested by the Glyko, Inc.,
Purchaser shall have furnished Glyko, Inc. with an opinion of
counsel, reasonably satisfactory to Glyko, Inc., that such
offer or sale is exempt from the registration requirements
under the Securities Act.
(t) Purchaser presently does and will as of the Closing Date qualify as an
"accredited investor" within the meaning of Rule 501(a) promulgated
under the Securities Act and meets the relevant criteria indicated on
its completed and signed copy of the Accredited Investor Questionnaire
attached hereto as Schedule "F".
------------
(u) None of the foregoing representations and warranties knowingly
contains any untrue statement of material fact or knowingly omits to
state any material fact necessary to make any such representation or
warranty not misleading to a prospective purchaser of the BioMarin
Shares seeking full information as to the BioMarin Shares.
5. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
-----------------------------------------------
All obligations of the Purchaser under this Agreement, including but not
limited to those to purchase the Glyko Shares, to assume the Employee Options
and to sell to Vendor the BioMarin Shares, are subject to the fulfillment prior
to or at the Closing of each of the following conditions:
(a) Purchaser shall have received from Vendor a certificate, dated as of
the Closing Date, signed by the President of Vendor, stating that the
representations and warranties made by the Vendor in or under this
Agreement are true in all material respects on and as of the date of
the Closing and that, on or prior to the Closing, Vendor has complied
with all covenants and agreements herein agreed to be performed or
caused to be performed by it on or prior to the Closing Date.
(b) On or before the Closing Date there shall have been obtained from all
appropriate Federal, provincial, state, municipal, foreign or other
governmental or administrative bodies all such approvals and consents,
if any, in form and terms satisfactory to the Purchaser, as may be
required in order to permit the change of ownership of the Glyko
Shares.
(c) On or before the Closing Date the Vendor and Glyko, Inc. shall have
settled all inter-company debt and equity accounts.
(d) Purchaser shall have received from Vendor a copy of this Agreement
duly executed on behalf of Vendor with all schedules attached thereto
completed to the mutual satisfaction of Purchaser and Vendor.
(e) Purchaser shall have received from Vendor an executed copy of the
Amended and Restated Registration Rights Agreement attached hereto as
Schedule "E."
-------------
-20-
(f) Purchaser shall have received from counsel to Vendor an executed legal
opinion in a form reasonably satisfactory to Purchaser.
(g) Vendor shall have delivered, subject to the provisions of Section 2.4
hereof, the Glyko Shares together with such executed documentation as
is necessary and appropriate to the effect the transfer of ownership
of the Glyko Shares from Vendor to Purchaser.
In case any of the foregoing conditions cannot be fulfilled on or before
the Closing Date to the satisfaction of the Purchaser, the Purchaser may rescind
this Agreement by notice to the Vendor and in such event each of the Purchaser
and the Vendor shall be released from all obligations hereunder; provided,
however, that any such conditions may be waived in whole or in part by the
Purchaser without prejudice to its rights of rescission in the event of the non-
fulfillment of any other condition or conditions, and that the closing of the
Transaction as contemplated by this Agreement shall be deemed to be a waiver of
any unfulfilled conditions.
6. CONDITIONS PRECEDENT TO THE VENDOR'S OBLIGATIONS
------------------------------------------------
All obligations of the Vendor under this Agreement, including but not
limited to those to sell the Glyko Shares to Purchaser and to purchase the
BioMarin Shares, are subject to the fulfillment prior to or at the Closing of
each of the following conditions:
(a) Vendor shall have received from Purchaser a certificate dated as of
the Closing Date, signed by the Chief Executive Officer of Purchaser,
stating that the representations and warranties of the Purchaser under
this Agreement are true in all material respects on and as of the date
of such Closing and that, on or prior to the Closing, the Purchaser
has complied with all covenants and agreements herein agreed to be
performed or caused to be performed by it on or prior to the Closing
Date.
(b) No action shall have been taken by any court or governmental body
prohibiting or making illegal the execution and delivery of this
Agreement, or any transaction contemplated by this Agreement. No
action, suit or proceeding shall have been instituted and be
continuing by any Person to restrain, modify or prevent the
consummation of the transactions contemplated by this Agreement, or to
seek damages against the Purchaser in connection with such
Transaction, or that has been or is reasonably likely to have a
material adverse affect on the ability of any party hereto to fully
consummate the transactions contemplated by this Agreement.
(c) The Purchaser shall have delivered to Vendor, subject to the
provisions of Section 2.4 hereof, releases of the Employee Options
executed by the subject optionees, in form reasonably satisfactory to
the Vendor.
(d) Purchaser shall have delivered, subject to the provisions of Section
2.4 hereof, a certificate representing the BioMarin Shares registered
in the name of the Vendor bearing restrictive legends as provided for
in Section 3(z).
(e) On or before the Closing Date the Vendor and Glyko, Inc. shall have
settled all inter-company debt and equity accounts.
-21-
(f) Vendor shall have received from counsel to Purchaser an executed legal
opinion in a form reasonably satisfactory to Vendor.
(g) Vendor shall have received from Purchaser a copy of this Agreement
duly executed on behalf of Purchaser with all schedules attached
thereto completed to the mutual satisfaction of Purchaser and Vendor.
(h) Vendor shall have received from Purchaser $500 in cash pursuant to
Section 2.2 hereof.
(i) Vendor shall have received from Purchaser an executed copy of the
Amended and Restated Registration Rights Agreement attached hereto as
Schedule "E."
-------------
In case any of the foregoing conditions cannot be fulfilled on or before
the Closing Date to the satisfaction of the Vendor, the Vendor may rescind this
Agreement by notice to Purchaser and in such event each of the Vendor and the
Purchaser shall be released from all obligations hereunder; provided, however,
that any such conditions may be waived in whole or in part by the Vendor without
prejudice to its rights or rescission in the event of the non-fulfillment of any
other condition or conditions and that the Closing shall be deemed to be a
waiver of any unfulfilled conditions.
7. NATURE OF REPRESENTATIONS AND WARRANTIES
----------------------------------------
(a) Regardless of any investigation at any time made by or on behalf of
any party hereto or of any information any party may have in respect
thereof, all representations and warranties made hereunder shall
survive the Closing for a period of 24 months following the Closing
Date.
(b) This Agreement, and the documents specifically referred to herein or
executed and delivered concurrently herewith or at the Closing
constitute the entire agreement, understanding, representations and
warranties of the parties hereto and supersede any prior agreement,
understanding, representation, warranty or documents relating to the
subject matter of this Agreement.
8. NOTICES
-------
All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given, if delivered in person,
telegraphed, or mailed by certified registered mail, postage prepaid:
-22-
(a) If to the Vendor, addressed as follows:
Glyko Biomedical Limited
00 Xxxxxxxx Xxxxx
Xxxxxx, Xx.
00000
Attention: Xx. Xxxx Xxxxx
Telecopy No.: 000-000-0000
With a copy to:
Xxxxxxx Xxxxx & Xxxxxxxxx
Suite 0000
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx X. Xxxxx
Telecopy No.: 000-000-0000
(b) If to the Purchaser, addressed as follows:
BioMarin Pharmaceutical Inc.
00 Xxxxxxxx Xxxxx
Xxxxxx, Xx.
00000
Attention: Xxxxx X. Xxxxxxx, Xx.
Telecopy No.: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX
00000-0000
Attention: Xxxxx Xxxxxx
Telecopy No.: 000-000-0000
or to such other address as the party to be notified shall have furnished to the
other party in writing. Any notice given in accordance with the foregoing shall
be deemed to have been given when delivered in person or on the next business
day following the date on which it shall have been telegraphed or mailed.
9. AMENDMENTS
----------
This Agreement may be amended or modified only by a written instrument
executed by the parties affected thereby, or by their respective successors and
permitted assigns.
-23-
10. GENERAL
-------
(a) This Agreement:
(i) shall be construed and enforced in accordance with the laws of
the Province of Ontario; and
(ii) shall enure to the benefit of and be binding upon the Purchaser
and the Vendor and their respective executors, administrators,
legal representatives, successors and permitted assigns,
nothing in this Agreement, express or implied, being intended
to confer upon any other person any rights or remedies
hereunder.
(b) Time shall be of the essence hereof.
(c) Each of the parties hereto covenants and agrees that at any time and
from time to time after the Closing Date such party will, upon the
request of the other party, do, execute, acknowledge and deliver all
such further acts, documents and assurances as may be reasonably
required for the better carrying out of the terms of this Agreement
and to consummate the transactions contemplated hereby.
(d) This Agreement may be executed in one or more counterparts, each of
which so executed shall constitute an original and all of which
together shall constitute one and the same agreement.
(e) 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 in connection with the
completion of the transactions contemplated hereby.
(f) The parties hereto agree to file in a timely manner all forms required
to be filed after the Closing Date by applicable law and by the
regulations and policies of all applicable securities regulatory
authorities in connection with the transactions contemplated hereby.
(g) Neither this Agreement nor any right or obligation hereunder shall be
assignable by any party hereto without the prior written consent of
the other parties hereto, which consent may be arbitrarily withheld.
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IN WITNESS WHEREOF the parties hereto have duly executed this
Agreement as of the day and date first above written.
GLYKO BIOMEDICAL LTD.
By: /s/ Xxxx X. Xxxxx
-----------------
Xx. Xxxx X. Xxxxx,
President
BIOMARIN PHARMACEUTICAL INC.
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------
Xxxxx X. Xxxxxxx, Xx.,
Chief Executive Officer
[SIGNATURE PAGE TO AGREEMENT REGARDING SALE OF CAPITAL STOCK OF GLYKO, INC.]
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