EXHIBIT 4.7(C)
THE CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST IN ACCORDANCE WITH RULE 24B-2 OF THE SECURITIES AND EXCHANGE ACT OF
1934, AS AMENDED. REDACTED PORTIONS OF THIS EXHIBIT ARE MARKED BY AN ***.
SHARE PURCHASE AGREEMENT
(FOR THE PURCHASE OF SHARES FROM MMV FINANCIAL INC.)
THIS AGREEMENT is made as of the 18th day of November, 2005,
BETWEEN:
MMV FINANCIAL INC., a corporation incorporated under the laws of
Canada
(the "VENDOR")
- and -
VERNALIS PLC, a corporation incorporated under the laws of
England and Wales, with company number 2304992
("VERNALIS")
- and -
VERNALIS (CANADA) INC., a corporation incorporated under the laws
of New Brunswick
(the "PURCHASER")
RECITALS:
A. Certain holders of warrants, conversion rights and options to acquire Class
A Preference Shares, Class D Preference Shares and common shares (the
"PRINCIPAL SHAREHOLDERS") in the capital of Cita Neuropharmaceuticals Inc.
(the "CORPORATION"), the Purchaser, Vernalis and the Corporation have
entered into a share purchase agreement (the "PRINCIPAL PURCHASE
AGREEMENT") dated the date hereof whereby the Principal Shareholders have
agreed to sell to the Purchaser all of their shares in the capital of the
Corporation, including those issuable upon exercise of warrants, conversion
rights, options and other rights to acquire shares in the capital of the
Corporation, or to exchange certain options and other rights to acquire
shares in the capital of the Corporation (both the shares and options
being, collectively, the "PRINCIPAL SHAREHOLDERS' SECURITIES").
B. The Vendor wishes to sell all of its Class A Preference shares in the
capital of the Corporation issuable upon exercise of warrants (the
"PURCHASED SHARES") and the Purchaser wishes to purchase such shares, on
and subject to the terms and conditions of this Agreement.
C. The Vendor wishes to appoint VenGrowth to act as its representative with
respect to certain matters with respect to this Agreement and related
documents.
D. The Purchaser is also entering into separate agreements with other holders
of shares in the capital of the Corporation and holders of warrants,
conversion rights, options or rights to acquire shares in the capital of
the Corporation to acquire all such shares and/or rights.
NOW THEREFORE in consideration of the mutual covenants and agreements
contained in this Agreement and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereto
agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Agreement,
1.1.1 "AFFILIATE" has the meaning attributed to such term under the
Business Corporations Act (Ontario);
1.1.2 "AGREED PAIN PROJECT BUDGET" means the budget for the Pain Project
agreed between the Corporation and the Purchaser;
1.1.3 "AGREED XXXXXXXXX'X PROJECT BUDGET" means the budget for the
Xxxxxxxxx'x Project agreed between the Corporation and the Purchaser;
1.1.4 "AGREEMENT" means this agreement and all schedules attached to this
agreement, in each case as they may be amended or supplemented from time to
time, and the expressions "HEREOF", "HEREIN", "HERETO", "HEREUNDER",
"HEREBY" and similar expressions refer to this agreement; and unless
otherwise indicated, references to Articles and sections are to Articles
and sections in this agreement;
1.1.5 "ALZHEIMER'S PROJECT" means the Business which relates to CNP1061 for
the indication of Alzheimer's disease;
1.1.6 "API INVENTORY AMOUNT" means the aggregate purchase price of
specified inventory acquired in respect of the Pain Project and the
Xxxxxxxxx'x Project, as set out in the Principal Purchase Agreement;
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1.1.7 "BUSINESS" means the business of the Corporation of researching,
developing and testing drug candidates related to the Pain Project, the
Xxxxxxxxx'x Project and the Alzheimer's Project;
1.1.8 "BUSINESS DAY" means any day, other than Saturday, Sunday or any
statutory holiday in the Province of Ontario or London, England;
1.1.9 "CANADIAN DOLLARS", "CDN. DOLLARS" or "CDN.$" means lawful currency
of Canada;
1.1.10 "CHARGE" means any security interest, lien, charge, pledge,
encumbrance, mortgage, adverse claim or title retention agreement of any
nature or kind;
1.1.11 "CLASS 2 PREFERRED SHARES" means the Class 2 non-voting,
retractable, redeemable, preferred shares, in registered form, of the
Purchaser, having the share provisions set out in Schedule C and subject to
the prior redemption right of the Class 1 non-voting, retractable,
redeemable, preferred shares, in registered form, of the Purchaser, with a
stated redemption price of U.S.$1.00 per share and with an aggregate
Redemption Price as set out in the Final Proceeds Schedule, plus the
aggregate Redemption Price of any additional Class 2 Preferred Shares
issued in accordance with section 2.7.2 and to other Persons in respect of
Net Cash, and subject to further reduction and set-off in accordance with
section 2.4.7 and the share provisions attached to the Purchaser Shares;
1.1.12 "CLASS 3 PREFERRED SHARES" means the Class 3 non-voting,
retractable, redeemable, preferred shares, in registered form, of the
Purchaser, having the share provisions set out in Schedule C and subject to
the prior redemption right of the Class 1 non-voting, retractable,
redeemable, preferred shares, in registered form, of the Purchaser and the
Class 2 Preferred Shares, with a stated redemption price of U.S.$1.00 per
share and with an aggregate Redemption Price as set out in the Final
Proceeds Schedule, plus the aggregate Redemption Price of any additional
Class 3 Preferred Shares issued in accordance with section 2.7.1 and to
other Persons in respect of Net Cash, and subject to further reduction and
set-off in accordance with section 2.4.7 and the share provisions attached
to the Purchaser Shares;
1.1.13 "CLASS 4 PREFERRED SHARES" means the Class 4 non-voting,
retractable, redeemable, preferred shares, in registered form, of the
Purchaser, having the share provisions set out in Schedule C and subject to
the prior redemption right of the Class 1 non-voting, retractable,
redeemable, preferred shares, in registered form, of the Purchaser and the
Class 2 Preferred Shares, with a stated redemption price of U.S.$1.00 per
share;
1.1.14 "CLOSING" means the completion of the sale and purchase of the
Purchased Shares pursuant to this Agreement at the Time of Closing;
1.1.15 "CLOSING DATE" means such date for completion of the purchase of the
Principal Shareholders' Securities pursuant to the Principal Purchase
Agreement as determined pursuant to the Principal Purchase Agreement;
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1.1.16 "CONVERSION RATE" means, in relation to the conversion of one
Currency to another on a particular day, the rate of exchange quoted by the
Bank of Canada as its spot rate of exchange for the conversion of the one
Currency to the other at approximately noon (Toronto time) on such day;
1.1.17 "CREST" means the relevant system, as defined in the UK
Uncertificated Securities Regulations 1995 (SI 1995 No. 93/3272), as
amended (in respect of which CRESTCo Limited is operator);
1.1.18 "CURRENCY" means Canadian Dollars, Pounds Sterling or United States
Dollars;
1.1.19 "ESTIMATED SIGNING BALANCE SHEET" means the consolidated balance
sheet of the Corporation and the Subsidiaries as at the date of this
Agreement, and the calculation of Vernalis Liabilities, prepared pursuant
to the Principal Purchase Agreement;
1.1.20 "FDA" means the Food and Drug Administration of the United States of
America;
1.1.21 "FINAL CLOSING BALANCE SHEET" means the consolidated balance sheet
of the Corporation and the Subsidiaries, as at the Closing Date, and the
calculation of the Net Cash as at the Closing Date, prepared pursuant to
the Principal Purchase Agreement;
1.1.22 "FINAL PROCEEDS SCHEDULE" means the schedule setting out, as at the
Closing Date, the allocation of the Initial Consideration, MMV Non-Vendor
Placing Shares, Purchaser Shares, each class of shares in the capital of
the Purchaser, options to acquire such shares, Redemption Amounts based on
the occurrence of Milestones and the other amounts set forth therein (prior
to reduction and set-off in accordance with section 2.4.7 and excluding the
allocation of the Redemption Amounts in respect of any additional Class 2
Preferred Shares, Class 3 Preferred Shares and Class 4 Preferred Shares,
issued pursuant to section 2.7 or to other Persons in respect of Net Cash),
a pro forma of which is set out in Schedule A (the "PRO FORMA PROCEEDS
SCHEDULE"), such schedule in final form to be agreed between Vernalis and
the Corporation pursuant to the Principal Purchase Agreement;
1.1.23 "FINAL SIGNING BALANCE SHEET" means the consolidated balance sheet
of the Corporation and the Subsidiaries as at the date of this Agreement,
and the calculation of Vernalis Liabilities, prepared pursuant to the
Principal Purchase Agreement;
1.1.24 "FROVATRIPTAN ANNOUNCEMENT" means the announcement by Vernalis of
the results of the pivotal efficacy study for its Frovatriptan MRM
prophylaxis development programme;
1.1.25 "INITIAL CONSIDERATION" means, subject to the provisions of this
Agreement, the allotment and issue of the MMV Non-Vendor Placing Shares to
the Vendor as set out in the Final Proceeds Schedule;
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1.1.26 "INTERIM EXPENDITURE" means such portion of the Interim Funding
Amount advanced by the Purchaser or Vernalis to the Corporation where the
proposed use of such funds indicated by the Corporation pursuant to the
Principal Purchase Agreement was to fund Permitted Costs;
1.1.27 "INTERIM FUNDING AMOUNT" means the aggregate amount advanced by the
Purchaser or Vernalis to the Corporation pursuant to the Principal Purchase
Agreement to fund the Corporation's operations;
1.1.28 "MILESTONE", in respect of the Purchaser Shares, has the meaning
attributed to such term in section 2.4.2;
1.1.29 "MILESTONE CONSIDERATION" means the issue of Purchaser Shares to the
Vendor as set out in the Final Proceeds Schedule and in accordance with
section 2.4.1;
1.1.30 "MILESTONE SHARE PRICE" means, in respect of any Vernalis Shares to
be issued on a Redemption Date, the average of the closing middle market
prices of a Vernalis Share as shown in the Daily Official List of the
London Stock Exchange plc on the 30 trading days up to and including the
trading day (the "FINAL TRADING DAY") immediately prior to the occurrence
of the relevant Milestone and converted to the relevant Currency at the
Conversion Rate on the Final Trading Day;
1.1.31 "MILESTONE SHARES" means, in respect of any Redemption Amount, such
number of Vernalis Shares, if any, to be allotted and issued to satisfy
such Redemption Amount in accordance with section 2.4.5;
1.1.32 "MMV LOAN" means the loan made by the Vendor to the Corporation
pursuant to the credit agreement between the Corporation and the Vendor
dated February 25, 2005 which, as at the date hereof, is in the principal
amount of U.S.$2,053,401 (subject to further repayment of principal after
the date hereof);
1.1.33 "MMV NON-VENDOR PLACING SHARES" means Vernalis Shares to be allotted
and issued to the Vendor in accordance with section 2.3.1 in the number set
out in the Final Proceeds Schedule;
1.1.34 "NET CASH" means an amount equal to:
(i) the aggregate amount of cash, receivables, and deposits (but not
prepaid expenses) of the Corporation and the Subsidiaries as at
the Closing Date plus the API Inventory Amount,
less
(ii) the aggregate amount of all liabilities, including any
liabilities arising in connection with the entering into of this
Agreement, the completion of the transactions contemplated
hereby, any withholding tax remittances, interest and penalties
remaining unpaid in respect of payments to Chiesi Farmaceutici
S.p.A. pursuant to the Chiesi Licence Agreements (as defined in
the Principal Purchase Agreement) (other than U.S.$ *** to be
withheld in connection with its right to acquire Class C
Preference shares
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in the capital of the Corporation), of the Corporation and the
Subsidiaries as at the Closing Date,
plus
(iii) the Vernalis Liabilities less such portion of the Interim
Funding Amount advanced by the Purchaser or Vernalis to the
Corporation where the proposed use of such funds indicated by the
Corporation pursuant to the Principal Purchase Agreement was to
fund Vernalis Liabilities,
to be set out in the Final Closing Balance Sheet and calculated in the
manner provided in Schedule 1.1.34;
1.1.35 "PAIN PROJECT" means the Business which relates to CNP3381 for the
indication of diabetic neuropathic pain;
1.1.36 "XXXXXXXXX'X PROJECT" means the Business which relates to CNP1512
for the indication of Xxxxxxxxx'x disease;
1.1.37 "PERMITTED COSTS" means any expenditure or commitment incurred or
committed to by the Corporation and the Subsidiaries in accordance with the
Agreed Pain Project Budget or the Agreed Xxxxxxxxx'x Project Budget, or to
pay salaries of employees of the Corporation and overhead costs at the same
level as at the date of this Agreement, and approved pursuant to the
Principal Purchase Agreement;
1.1.38 "PERSON" means any individual, partnership, limited partnership,
joint venture, syndicate, sole proprietorship, company or corporation with
or without share capital, unincorporated association, trust, trustee,
executor, administrator or other legal personal representative, regulatory
body or agency, government or governmental agency, authority or entity
however designated or constituted;
1.1.39 "POUNDS STERLING" or "L" means lawful currency of the United
Kingdom;
1.1.40 "PRIME RATE" means the annual rate of interest which the Royal Bank
of Canada establishes at its principal office in Toronto as the reference
rate of interest to determine interest rates it will charge at such time
for demand loans in Canadian dollars made to its customers in Canada and
which it refers to as its "prime rate of interest";
1.1.41 "PRO FORMA PROCEEDS SCHEDULE" has the meaning attributed to such
term in section 1.1.22;
1.1.42 "PURCHASE PRICE" has the meaning attributed to such term in section
2.2;
1.1.43 "PURCHASER SHAREHOLDERS AGREEMENT" means the unanimous shareholders
agreement to be entered into pursuant to the Business Corporations Act (New
Brunswick) among all of the shareholders of the Purchaser, the Purchaser
and Vernalis, substantially in the form attached as Schedule B;
1.1.44 "PURCHASER SHARES" means, collectively, the Class 2 Preferred Shares
to be issued to the Vendor and to the Principal Shareholders and the Class
3 Preferred
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Shares to be issued to the Vendor, the Principal Shareholders and other
holders of the common shares and rights to acquire common shares in the
capital of the Corporation, all with share rights, privileges, restrictions
and conditions set out in the share provisions substantially in the form
attached as Schedule C;
1.1.45 "REDEMPTION AMOUNT" means, in respect of any Redemption Date, the
aggregate Redemption Price payable in cash and/or Vernalis Shares owing to
the Vendor by the Purchaser upon the retraction or redemption of its
Purchaser Shares in accordance with the share provisions to the Purchaser
Shares, or by Vernalis (or its designee or assignee) upon exercise of its
call right in accordance with section 2.4.4, and, subject in either case,
to reduction or set-off of the Vendor's entitlement thereto in accordance
with section 2.4.7 and the share provisions attached to the Purchaser
Shares;
1.1.46 "REDEMPTION DATE" means (i) in respect of any Milestone, the 45th
day after the occurrence of that Milestone, or such other date as may be
agreed between the Purchaser and the Vendor' Representative, and (ii) the
Special Redemption Date;
1.1.47 "REDEMPTION PRICE" means the stated redemption price of each
Purchaser Share in respect of a Redemption Date of U.S.$ *** each;
1.1.48 "REPORT" means the customary final report produced for filing with
the FDA;
1.1.49 "SPECIAL REDEMPTION DATE" has the meaning attributed to such term in
section 2.7;
1.1.50 "SUBSIDIARIES" means 2037137 Ontario Inc. and 2060347 Ontario Inc.,
each incorporated under the laws of the Province of Ontario and each a
wholly-owned subsidiary of the Corporation;
1.1.51 "TIME OF CLOSING" means such time for completion of the purchase of
the Principal Shareholders' Securities pursuant to the Principal Purchase
Agreement on the Closing Date;
1.1.52 "UNITED STATES DOLLARS", "U.S. DOLLARS" or "U.S.$" means lawful
currency of the United States of America;
1.1.53 "VENDORS' REPRESENTATIVE" has the meaning attributed to such term in
section 2.5;
1.1.54 "VENDORS' REPRESENTATIVE AGREEMENT" has the meaning attributed to
such term in section 2.5;
1.1.55 "VERNALIS LIABILITIES" means the aggregate liabilities as at the
date of this Agreement incurred or committed to by the Corporation and the
Subsidiaries in respect of the Pain Project and the Xxxxxxxxx'x Project
which are not outstanding for more than 60 days past their invoice date and
appended to the Estimated Signing
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Balance Sheet, subject to adjustment in accordance with the Final Signing
Balance Sheet; and
1.1.56 "VERNALIS SHARES" means the ordinary shares of L0.05 each in the
capital of Vernalis, adjusted for any stock split or consolidation effected
after the date of this Agreement.
1.2 HEADINGS
The inclusion of headings in this Agreement is for convenience of
reference only and shall not affect the construction or interpretation hereof.
1.3 GENDER AND NUMBER
In this Agreement, unless the context otherwise requires, words
importing the singular include the plural and vice versa, words importing gender
include all genders or the neuter, and words importing the neuter include all
genders.
1.4 CURRENCY CONVERSION AND INDEMNITY
If, in connection with any action or proceeding brought in connection
with this Agreement or any judgment or order obtained as a result thereof, it
becomes necessary to convert any amount due hereunder in one Currency (the
"OTHER CURRENCY") into Canadian Dollars, then the conversion shall be made at
the Conversion Rate on the first Business Day prior to the day on which payment
is received.
If the conversion is not able to be made in the manner contemplated by
the preceding paragraph in the jurisdiction in which the action or proceeding is
brought, then the conversion shall be made at the Conversion Rate on the date
fixed by the court for such conversion.
If the Conversion Rate on the date of payment is different from the
Conversion Rate on such first Business Day or on the date fixed for conversion
by the court, as the case may be, the party liable to make the payment (the
"PAYOR") shall pay such additional amount (if any) in Canadian Dollars as may be
necessary to ensure that the amount paid on such payment date is the aggregate
amount in Canadian Dollars which, when converted at the Conversion Rate on the
date of payment, is the amount due in the Other Currency, together with all
costs, charges and expenses of conversion. Any additional amount owing by the
payor to the party or parties entitled to payment thereof pursuant to the
provisions of this section 1.4 shall be due as a separate debt and shall give
rise to a separate cause of action and shall not be affected by or merge into
any judgment obtained for any other amounts due under or in respect of this
Agreement.
1.5 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
pertaining to the purchase of the common shares in the capital of the
Corporation. This Agreement supersedes all prior arrangements and
understandings, whether written or oral, relating to such subject
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matter in any way. 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. No reliance is placed on any warranty, representation,
opinion, advice or assertion of fact made either prior to, contemporaneous with,
or after entering into this Agreement, or any amendment or supplement thereto,
by any party to this Agreement or its directors, officers, employees or agents,
to any other party to this Agreement or its directors, officers, employees or
agents, except to the extent that the same has been reduced to writing and
included as a term of this Agreement, and none of the parties to this Agreement
has been induced to enter into this Agreement or any amendment or supplement by
reason of any such warranty, representation, opinion, advice or assertion of
fact. Accordingly, there shall be no liability, either in tort or in contract,
assessed in relation to any such warranty, representation, opinion, advice or
assertion of fact, except to the extent contemplated above. To the extent that
there is any inconsistency between the share provisions attached to the
Purchaser Shares and the terms of this Agreement, the terms of this Agreement
shall prevail.
1.6 WAIVER, AMENDMENT
Except as expressly provided in this Agreement, no amendment or waiver
of this Agreement shall be binding unless executed in writing by the party to be
bound thereby. No waiver of any provision of this Agreement shall constitute a
waiver of any other provision nor shall any waiver of any provision of this
Agreement constitute a continuing waiver unless otherwise expressly provided.
1.7 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.
1.8 ATTORNMENT
The Vendor, Vernalis, and the Purchaser (collectively, the "ATTORNING
PARTIES" and, individually, an "ATTORNING PARTY") each agrees that any suit,
action or proceeding arising out of or relating to this Agreement against an
attorning party or any of an attorning party's assets may be brought in any
court in the Province of Ontario, and the attorning parties hereby irrevocably
and unconditionally attorn and submit to the jurisdiction of such courts. The
attorning parties irrevocably waive and agree not to raise any objection any of
them might now or hereafter have to the bringing of any such suit, action or
proceeding in any such court including, without limitation, any objection that
the place where such court is located is an inconvenient forum or that there is
any other suit, action or proceeding in any other place relating in whole or in
part to the same subject matter. Each attorning party agrees that any judgment
or order against that attorning party in any such suit, action or proceeding
brought in such a court shall be conclusive and binding upon that attorning
party and consents to any such judgment or order being recognized and enforced
in the courts of its jurisdiction of incorporation.
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ARTICLE 2
PURCHASE AND SALE
2.1 AGREEMENT TO PURCHASE AND SELL
Simultaneously with the completion of the purchase or exchange from
the Principal Shareholders of the Principal Shareholders' Securities pursuant to
the Principal Purchase Agreement and subject to the terms of this Agreement, at
the Time of Closing the Vendor shall sell and the Purchaser shall purchase all
of the Purchased Shares for Initial Consideration and Milestone Consideration as
set forth opposite the Vendor's name in the Final Proceeds Schedule. The
Purchaser shall not be obligated to purchase or exchange any of the Purchased
Securities in accordance with this Agreement unless the purchase or exchange of
all of the Principal Shareholders' Securities is completed simultaneously in
accordance with the Principal Purchase Agreement.
2.2 PURCHASE PRICE
The aggregate purchase price (the "PURCHASE PRICE") to be paid by the
Purchaser to the Vendor for the Purchased Shares shall be equal to the aggregate
of the Initial Consideration and the Milestone Consideration, subject to
adjustment on the Special Redemption Date in accordance with section 2.7.1.
2.3 SATISFACTION OF THE INITIAL CONSIDERATION
2.3.1 The Initial Consideration shall be satisfied at the Time of Closing
by the allotment and issue of the MMV Non-Vendor Placing Shares, credited
as paid in full, and delivered by Vernalis to the Vendor (or its nominee)
as set out in the Final Proceeds Schedule in uncertificated form to an
account in CREST designated by the Vendor.
2.3.2 The Purchaser shall cause Vernalis to deliver the MMV Non-Vendor
Placing Shares to the Vendor in accordance with section 2.3.1.
2.4 SATISFACTION OF MILESTONE CONSIDERATION
2.4.1 The Milestone Consideration shall be satisfied at the Time of Closing
by the issue of such number of Purchaser Shares as is set out opposite the
Vendor's name in the Final Proceeds Schedule, credited as paid in full, and
delivered by the Purchaser to the Vendor in certificated form. The
Purchaser Shares shall be redeemed by the Purchaser (and delivered by the
Vendor to the Purchaser for redemption) on each Redemption Date for the
applicable Redemption Amount in accordance with the share provisions
attached to the Purchaser Shares and the provisions of this Agreement or,
if Vernalis exercises its call right in accordance with section 2.4.4,
purchased by Vernalis (and delivered by the Vendor to Vernalis for
purchase) on such Redemption Date for the applicable Redemption Amount in
accordance with the share provisions attached to the Purchaser Shares and
the provisions of this Agreement. Each of the Vendor, the Purchaser and
Vernalis agrees to be bound by the share provisions attached to the
Purchaser Shares, subject to the terms of this Agreement.
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2.4.2 The occurrence of each of the following events (each a "MILESTONE")
shall give rise to a retraction, redemption or call right in respect of the
Purchased Shares up to the amounts specified below (each a "MILESTONE
PAYMENT"), in accordance with the share provisions attached to the
Purchaser Shares and the provisions of this Agreement, and Vernalis shall
notify the Vendors' Representative of the occurrence of each Milestone
within 10 Business Days of its occurrence and shall indicate the Redemption
Date with respect to such Milestone:
2.4.2.1 in respect of the Pain Project:
2.4.2.1.1 U.S.$ 5,833,334, upon the completion of a report by
Vernalis or its affiliates to be produced in a timely manner
following completion of a clinical study which generates data
sufficient to support the requirements of 21 CFR 312.21(b)
sufficient to justify Vernalis progressing with a Phase IIb or a
Phase III study programme, as the case may be;
2.4.2.1.2 U.S.$ 5,833,333, upon the completion of a Report by
Vernalis or its affiliates to be provided in a timely manner
following completion of a clinical study which generates data
sufficient to support the requirements of 21 CFR 312.21(c) for a
submission for regulatory approval to the FDA to market and sell
in the USA a product comprising CNP3381 for the treatment of
diabetic neuropathic pain; and
2.4.2.1.3 U.S.$ 5,833,333, upon the issuance by the FDA of a
written notification to Vernalis or its affiliates pursuant to 21
CFR 314.105(a) that the FDA approves CNP3381 for the treatment of
diabetic neuropathic pain, Alzheimer's disease, post-operative
pain or mixed pain related to palliative care. For greater
certainty, if CNP3381 is developed for more than one of the
above-noted indications, only the first FDA approval for one of
the indications noted above shall be a Milestone. If the
Milestone referred to in section 2.4.2.1.2 has not occurred prior
to the FDA approval contemplated by this section 2.4.2.1.3, that
Milestone shall be deemed to occur concurrently with the
occurrence of the Milestone contemplated in this section
2.4.2.1.3; and
2.4.2.2 in respect of the Xxxxxxxxx'x Project:
2.4.2.2.1 U.S.$ 5,833,334, upon the enrollment by Vernalis or its
affiliates of the first patient into a Phase III study for the
purpose of generating data to support the requirements of 21 CFR
312.21(b);
2.4.2.2.2 U.S.$ 5,833,333, upon the completion of a Report by
Vernalis or its affiliates to be produced in a timely manner
following completion of a trial which generates data sufficient
to support the requirements of 21 CFR 312.21(c) for a submission
for regulatory approval to the FDA to market and sell in the USA
a product comprising CNP1512 for the treatment of Xxxxxxxxx'x
disease; and
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2.4.2.2.3 U.S.$ 5,833,333, upon the issuance by the FDA of a
written notification to Vernalis or its affiliates pursuant to 21
CFR 314.105(a) that the FDA approves CNP1512 for the treatment of
Xxxxxxxxx'x disease,
provided that the Milestone Payment in respect of each of the first two
Milestones to occur shall be reduced by an amount equal to one-half of the
amount of the Interim Expenditure.
2.4.3 Subject to section 2.4.4, the Redemption Amount in respect of a
Redemption Date shall be satisfied by the allotment and issue of Vernalis
Shares or, at the option of the Purchaser, by payment in cash or by a
combination of cash and Vernalis Shares (such combination of cash and
Vernalis Shares to be at the discretion of the Purchaser) on that
Redemption Date. Notwithstanding the foregoing, the Redemption Amount in
respect of the Special Redemption Date, if applicable, may only be
satisfied in cash.
2.4.4 Vernalis (or its designee or assignee) may, at its option, elect, by
notice to the Vendors' Representative at any time (i) on or before the
Special Redemption Date and (ii) after the occurrence of a Milestone and on
or before the relevant Redemption Date, to purchase, on the relevant
Redemption Date, such Purchaser Shares which may be redeemed on such
Redemption Date for the applicable Redemption Amount, notwithstanding that
the Vendor or the Purchaser has exercised its retraction or redemption
right, respectively, pursuant to the share provisions attached to the
Purchaser Shares. If Vernalis exercises its call right in accordance with
this section 2.4.4 and the shares attached to the Purchaser Shares in
respect of a Redemption Date, the Redemption Amount payable on that
Redemption Date shall be satisfied by the allotment and issue of Vernalis
Shares or, at the option of Vernalis, by payment in cash or by a
combination of cash and Vernalis Shares (such combination of cash and
Vernalis Shares to be at the discretion of Vernalis) on that Redemption
Date and in accordance with the share provisions attached to the Purchaser
Shares. Upon exercise by Vernalis of its call right in accordance with this
section 2.4.4, the retraction and redemption right of the Vendor or the
Purchaser pursuant to the share provisions attached to the Purchaser Shares
in respect of the Redemption Date shall be cancelled. Notwithstanding the
foregoing, the Redemption Amount in respect of the Special Redemption Date,
if applicable, may only be satisfied in cash.
2.4.5 To the extent the Purchaser or Vernalis, as applicable, elects not to
satisfy any Redemption Amount in cash, Vernalis shall allot and issue
Vernalis Shares, credited as paid in full, and deliver on the relevant
Redemption Date to the Vendor (or its nominee), in uncertificated form to
an account in CREST designated by the Vendor, such number of Vernalis
Shares as at the Milestone Share Price shall be equal to the Vendor's
entitlement to a Redemption Amount divided by the Milestone Share Price
(rounded up to the nearest whole share), subject to any further reduction
as provided in section 2.4.7.
2.4.6 Any Redemption Amount to be satisfied in cash, subject to any further
reduction as provided in section 2.4.7, shall be paid on the relevant
Redemption Date to the Vendors' Representative, on behalf of the Vendor,
and the Vendors'
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Representative shall pay such Redemption Amount to the Vendor in accordance
with its entitlement on the Redemption Date and neither the Purchaser nor
Vernalis, as applicable, shall have any responsibility for such
distribution. The Vendors' Representative may, not less than five Business
Days prior to the relevant Redemption Date, direct the Purchaser or
Vernalis, as applicable, to pay to the Vendor directly any amounts
contemplated by this section 2.4.6.
2.4.7 The Vendor's entitlement to a Redemption Amount on a Redemption Date
may be further reduced and set-off by the Purchaser or Vernalis by and
against the amount of any claim against the Vendor in respect of any loss,
damages or deficiencies suffered by the Purchaser or Vernalis as a result
of any breach by the Vendor of a representation or covenant contained in
this Agreement, being either the approximate and reasonable estimate of the
likely amount of any such claim as determined by the Purchaser or Vernalis,
as applicable, or, if such claim has been settled or finally determined,
the amount of such claim, to the extent not satisfied in full on the fifth
Business Day preceding the Redemption Date (using the Milestone Share Price
as the value of the Milestone Shares when calculating the number of
Milestone Shares to be reduced).
2.4.8 In the event the Vendor's entitlement to a Redemption Amount is
reduced by the amount of an estimated claim (the "ESTIMATED CLAIM") as
provided in section 2.4.7, upon such claim becoming settled or finally
determined (the "DETERMINED CLAIM"), the Purchaser or Vernalis, as
applicable, shall, if and to the extent the amount of the Determined Claim
for which the Vendor is responsible is less than the Estimated Claim for
which the Vendor is responsible, satisfy the difference (up to the amount
of the reduction made pursuant to section 2.4.7) in cash or Vernalis Shares
or a combination of the two (depending upon and proportionately to whether
the relevant Redemption Amount was satisfied in cash or Vernalis Shares or
a combination of the two) and the provisions of this section 2.4 shall
apply mutatis mutandis, with the Milestone Share Price, when calculating
the number of Vernalis Shares to be issued pursuant to this section 2.4.8,
being that used in respect of the relevant Redemption Date.
2.4.9 Notwithstanding that the Purchaser or Vernalis, as applicable, elects
to pay a Redemption Amount, in whole or in part, in Vernalis Shares, the
Purchaser or Vernalis, as applicable, may elect to pay to any Vendor who is
located or resident in a jurisdiction on the Redemption Date, or date for
payment pursuant to section 2.4.8, where the issuance of such shares would
be in contravention of applicable securities laws (with no obligation to
qualify or register the shares or rely upon an exemption from such
requirement), its entitlement to a Redemption Amount in cash only.
2.4.10 In the event that the Vendor is a non-resident of Canada under the
Income Tax Act (Canada) on any Redemption Date, or date for payment
pursuant to section 2.4.8, it shall deliver to the Purchaser or Vernalis,
as applicable, a certificate issued pursuant to section 116 of the Income
Tax Act (Canada) on account of that Vendor's entitlement to a Redemption
Amount on such Redemption Date, or date for payment pursuant to section
2.4.8. Notwithstanding the foregoing, neither the Purchaser nor
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Vernalis, as applicable, shall be required to issue any Purchaser Shares or
Vernalis Shares to the Vendor until the delivery of such certificate, as
applicable. The Purchaser or Vernalis, as applicable, shall be entitled to
deduct or withhold from any Redemption Amount payable to a Vendor any
amount required to be deducted or withheld under applicable law.
2.4.11 Vernalis (or its designee or assignee) may, at its option, elect by
notice to the Vendors' Representative at any time after the earlier of (i)
the tenth anniversary of the Time of Closing or (ii) the Redemption Date in
respect of the last Milestone to occur, provided that any Redemption Amount
owing in respect of such Redemption Date has been satisfied in full, to
purchase, on the date specified in such notice, all of the outstanding
Purchaser Shares for a purchase price of U.S.$ *** per share, payable in
cash to the Vendors' Representative on behalf of the Vendor.
2.5 APPOINTMENT OF VENDORS' REPRESENTATIVE
The Vendor hereby appoints The VenGrowth Advanced Life Sciences Fund
Inc. to act as its representative (the "VENDORS' REPRESENTATIVE") to carry out
such duties and responsibilities and to exercise such rights and powers on its
behalf as are provided in this Agreement and in related documents in accordance
with an agreement (the "VENDORS' REPRESENTATIVE AGREEMENT") to be entered into
among the Vendors' Representative, the Vendor, and certain other Persons to
become shareholders or optionholders of the Purchaser.
In the event of any disagreement between the Vendor and/or the
Vendors' Representative resulting in adverse claims or demands with respect to
the amounts delivered under this Agreement to the Vendors' Representative on
behalf of the Vendor, the Vendors' Representative shall be entitled, at its
option, to refuse to comply with any claims or demands on it with respect
thereto so long as such disagreement shall continue, and in so refusing, the
Vendors' Representative may elect to make no delivery of such amounts. In doing
so, the Vendors' Representative shall not be or become liable in any way to the
Vendor, Vernalis or the Purchaser for its failure or refusal to comply with such
claims or demands.
The Vendors' Representative may resign from such position at any time
by written notice to the parties to the Vendors' Representative Agreement, the
Purchaser and Vernalis provided that the Vendors' Representative shall have
appointed a successor to the Vendors' Representative satisfactory to the
Purchaser, acting reasonably, which appointment will be binding on the parties
to the Vendors' Representative Agreement, and provided that such successor shall
have consented to act in such capacity.
2.6 DELIVERY OF SHARE CERTIFICATES
At the Time of Closing, the Vendor shall deliver to the Purchaser
share certificates representing the Purchased Shares duly endorsed in blank for
transfer or accompanied by duly signed powers of attorney for transfer in blank.
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2.7 NET CASH PAYMENT
On the 15th Business Day after the final determination of the Final
Closing Balance Sheet in accordance with the Principal Purchase Agreement:
2.7.1 if the Net Cash as set out in the Final Closing Balance Sheet is a
positive number, the Purchaser shall issue to the Vendor on such date (the
"SPECIAL REDEMPTION DATE") such number of Class 3 Preferred Shares (rounded
upwards to the nearest whole share) with an aggregate Redemption Price
equal to the amount of such Net Cash, converted to U.S. Dollars at the
Conversion Rate as at the Closing Date, multiplied by a fraction, (i) the
numerator of which is the number of Class 3 Preferred Shares owned by the
Vendor on the Special Redemption Date and (ii) the denominator of which is
the aggregate of the number of all Class 3 Preferred Shares outstanding on
the Special Redemption Date and the number of all Class 4 Preferred Shares
issuable upon exercise of all options outstanding on the Special Redemption
Date. Such Class 3 Preferred Shares issuable to the Vendor shall be
credited as paid in full, and delivered by the Purchaser to the Vendors'
Representative, on behalf of the Vendor, in certificated form; and
2.7.2 if the Net Cash as set out in the Final Closing Balance Sheet is a
negative number, the Vendor shall be deemed to subscribe on the Special
Redemption Date at U.S. $ *** per share for such number of Class 2
Preferred Shares (rounded upwards to the nearest whole share) with an
aggregate Redemption Price equal to the amount of such Net Cash (expressed
as a positive number), together with interest calculated thereon at the
Prime Rate from and including the date of Closing to but excluding the date
of payment, converted to U.S. Dollars at the Conversion Rate as at the
Closing Date, multiplied by a fraction, (i) the numerator of which is the
aggregate Redemption Price of Class 2 Preferred Shares owned by the Vendor
on the Special Redemption Date, and (ii) the denominator of which is the
aggregate Redemption Price of all Class 2 Preferred Shares outstanding on
the Special Redemption Date, and the aggregate subscription price shall be
paid by the Vendors' Representative, on behalf of the Vendor, to the
Purchaser. Subject to payment in full of the aggregate subscription price
by the Vendors' Representative, such Class 2 Preferred Shares, issuable to
the Vendor, shall be credited as paid in full, and delivered by the
Purchaser to the Vendors' Representative, on behalf of the Vendor, in
certificated form. The Vendor shall reimburse the Vendors' Representative
for such amount.
2.8 FINAL PROCEEDS SCHEDULE
The Final Proceeds Schedule shall be based on the Pro Forma Proceeds
Schedule and calculated in accordance with, and in a manner consistent with, the
spreadsheet contained within the CD-Rom delivered by the Corporation to Vernalis
on the date of this Agreement, updated to reflect the final resolution as at the
Closing Date of the variable factors noted in the Pro Forma Proceeds Schedule
(other than those variables to be reflected in the Final Closing Balance Sheet).
The Final Proceeds Schedule as agreed between Vernalis and the Corporation shall
be binding upon the parties to this Agreement, and neither the Purchaser nor
Vernalis shall have any responsibility or liability for any dispute or claim
arising as to the allocation, in
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accordance with the Final Proceeds Schedule, of Purchaser Shares, each class of
shares in the capital of the Purchaser, options to acquire such shares,
Redemption Amounts and the other amounts set forth therein. The Vendors
acknowledge and agree that the Pro Forma Proceeds Schedule and the Final
Proceeds Schedule are intended only to set out the allocation of Purchaser
Shares, each class of shares in the capital of the Purchaser, options to acquire
such shares, Redemption Amounts and the other amounts set forth therein (prior
to reduction and set-off in accordance with section 2.4.7 and excluding the
issue of any additional Class 2 Preferred Shares, Class 3 Preferred Shares and
any Class 4 Preferred Shares pursuant to section 2.7 or to other Persons in
respect of Net Cash) and, subject to section 2.7, nothing in this section 2.8
shall oblige the Purchaser or Vernalis to pay, issue or allot (or procure the
payment, issue or allotment of) additional consideration to the Vendors. In the
event that additional Class 2 Preferred Shares, Class 3 Preferred Shares or
Class 4 Preferred Shares are issued in accordance with section 2.7 or to other
Persons in respect of Net Cash, the Final Proceeds Schedule shall be updated by
the Purchaser and the Vendors' Representative accordingly.
2.9 RESALE RESTRICTIONS ON MMV NON-VENDOR PLACING SHARES
The MMV Non-Vendor Placing Shares allotted and issued to the Vendor
shall be entitled to be sold in accordance with applicable securities law
requirements, provided however in order to ensure the maintenance of an orderly
market in Vernalis Shares after the Time of Closing, the Vendor issued and
allotted in excess of 500,000 MMV Non-Vendor Placing Shares covenants not to
dispose of those shares on or before the Frovatriptan Announcement except:
2.9.1 with the prior approval of Vernalis (such approval not to be
unreasonably withheld) and provided that such sale takes place through
Vernalis' designated brokers in London and that such brokers are able to
sell such shares on commercially reasonable terms and in accordance with
applicable regulatory requirements;
2.9.2 a sale of less than *** MMV Non-Vendor Placing Shares in any given
five day trading period by the Vendor;
2.9.3 a disposal pursuant to a court order or in acceptance of an offer by
Vernalis to buy back its own shares; or
2.9.4 to accept a general offer made for all of the outstanding Vernalis
Shares (other than Vernalis Shares held by the offeror and/or Persons
acting in concert with the offeror), or to execute an irrevocable
commitment to accept such a general offer, or a disposal or agreement to
dispose of shares to a Person who has made or announced his intention to
make, or has a bona fide intention to make, such an offer.
In the event that the Frovatriptan Announcement does not occur on or
before June 30, 2006, the Vendor shall be free to sell MMV Non-Vendor Placing
Shares without reference to the restrictions set forth in this section 2.9.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 VENDORS' REPRESENTATIONS AND WARRANTIES
The Vendor hereby represents and warrants to each of the Purchaser and
Vernalis as follows and the Vendor acknowledges that each of the Purchaser and
Vernalis is relying upon the following representations and warranties in
connection with the purchase of the Purchased Shares (and such representations
and warranties shall be deemed to be repeated on at the Time of Closing and, in
the case of the representation and warranty contained in section 3.1.11, unless
the Purchaser and Vernalis have been otherwise notified in writing at least 10
Business Days prior thereto, on each Redemption Date or date of payment under
section 2.4.8):
3.1.1 INCORPORATION. It is duly incorporated and validly existing under the
laws of its jurisdiction of incorporation.
3.1.2 CAPACITY AND DUE AUTHORIZATION. It has the corporate power and
capacity to enter into, and to perform its obligations under, this
Agreement.
3.1.3 ENFORCEABILITY. This Agreement has been duly authorized, executed and
delivered by it and is its valid and binding obligation, enforceable
against it in accordance with its terms, subject to the usual exceptions as
to bankruptcy and the availability of equitable remedies.
3.1.4 TITLE TO, AND RIGHT TO, SELL PURCHASED SHARES. It is the sole
registered and beneficial owner of the Purchased Shares with good and
marketable title thereto, free of all Charges. There are no agreements or
restrictions which in any way limit or restrict the transfer to the
Purchaser of its Purchased Shares nor are there any shareholders
agreements, pooling agreements, voting trusts or other agreements or
understandings with respect to the voting of its Purchased Shares or any of
them. At the Time of Closing, it will have full legal right, power and
authority to sell the Purchased Shares to the Purchaser free of all
Charges.
3.1.5 AMOUNTS OWING BY THE CORPORATION. At the Time of Closing, upon
exercise of all options, warrants, conversion rights to acquire shares or
securities of the Corporation, there shall be no amounts owing to the
Vendor by the Corporation, subject to prepayment of the MMV Loan in
accordance with section 4.2.1.
3.1.6 NO CONTRAVENTION. None of the entering into of this Agreement nor the
performance by it of any of its obligations under this Agreement will
contravene, breach or result in any default under its articles, by-laws,
constating documents or other organizational documents, if applicable, or
under any mortgage, lease, agreement, other legally binding instrument,
licence, permit, statute, regulation, order, judgment, decree or law to
which it is a party or by which it may be bound.
3.1.7 CONSENTS AND APPROVALS. No authorization, consent or approval of, or
filing with or notice to, any governmental agency, regulatory body, court
or other Person is
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required in connection with the execution, delivery or performance by it of
this Agreement or the sale by it of any of the Purchased Shares hereunder.
3.1.8 COMPLIANCE WITH CONFIDENTIALITY OBLIGATIONS. It has complied with all
applicable confidentiality or proprietary obligations in favour of the
Corporation and has not, directly of indirectly, used for its own purposes
or disclosed to any Person any confidential or proprietary information of
the Corporation or the Subsidiaries, including know-how and data, technical
or non-technical, relating to the Business.
3.1.9 PRINCIPAL PURCHASE AGREEMENT. It acknowledges that it is aware of the
terms of the Principal Purchase Agreement and that, if requested, it
received a copy of the Principal Purchase Agreement.
3.1.10 TAX RESIDENCY. It is not a non-resident of Canada under the Income
Tax Act (Canada).
3.1.11 U.S. SECURITIES LAWS. It is not located or resident in the United
States of America for securities laws purposes.
3.2 PURCHASER'S AND VERNALIS' REPRESENTATIONS AND WARRANTIES
The Purchaser and Vernalis each jointly and severally represents and
warrants to the Vendor as follows and acknowledges that the Vendor is relying
upon the following representations and warranties in connection with its sale of
the Purchased Shares (and such representations and warranties shall be deemed to
be repeated at the Time of Closing):
3.2.1 INCORPORATION. The Purchaser is duly incorporated and validly
existing under the laws of New Brunswick. Vernalis is duly incorporated and
validly existing under the laws of England and Wales.
3.2.2 CORPORATE POWER AND DUE AUTHORIZATION. The Purchaser and Vernalis
each have the corporate power and capacity to enter into, and to perform
its obligations under, this Agreement, subject to shareholder and
regulatory approvals and requirements and filings in connection with the
issue of securities of the Purchaser and Vernalis as contemplated herein.
This Agreement has been duly authorized by the board of directors of each
of the Purchaser and Vernalis. This Agreement has been duly executed and
delivered by the Purchaser and Vernalis.
3.2.3 ENFORCEABILITY. This Agreement is a valid and binding obligation of
each of the Purchaser and Vernalis, enforceable in accordance with its
terms, subject to the usual exceptions as to bankruptcy and the
availability of equitable remedies.
3.2.4 NO CONTRAVENTION. None of the entering into of this Agreement nor the
performance by the Purchaser nor Vernalis of any of its obligations under
this Agreement will contravene, breach or result in any default under its
articles, by-laws, constating documents or other organizational documents
or under any mortgage, lease, agreement, other legally binding instrument,
licence, permit, statute, regulation, order, judgment, decree or law to
which it is a party or by which it may be bound.
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3.2.5 CONSENTS AND APPROVALS. No authorization, consent or approval of, or
filing with or notice to, any governmental agency, regulatory body, court
or other Person is required in connection with the execution, delivery or
performance by the Purchaser nor Vernalis of this Agreement nor the
performance by it of any of its obligations, subject to shareholder and
regulatory approvals and requirements and filings in connection with the
issue of securities of the Purchaser and Vernalis as contemplated herein.
3.2.6 ISSUE OF PURCHASER SHARES AND VERNALIS SHARES. At the time of issue
of the Purchaser Shares or Vernalis Shares in accordance with the share
provisions attached to the Purchaser Shares and the provisions of this
Agreement, such Purchaser Shares and Vernalis Shares, as the case may be,
shall be validly issued and fully paid.
ARTICLE 4
COVENANTS
4.1 VENDOR'S COVENANTS
The Vendor covenants in favour of the Purchaser and Vernalis as
follows:
4.1.1 EXERCISE OF RIGHTS. To exercise, prior to the Time of Closing, all
warrants, conversion rights, options and other rights to acquire, directly
or indirectly, Corporation Shares prior to the Time of Closing.
4.1.2 RELEASE OF CHARGES. To release, upon prepayment of the MMV Loan in
accordance with section 4.2.1, the Corporation from all Charges against the
property, assets or undertaking of the Corporation granted in favour of the
Vendor and to authorize the Corporation and the Purchaser, jointly and
severally, to discharge all such Charges forthwith thereafter. The Vendor
hereby waives notice of prepayment of the MMV Loan in accordance with
section 4.2.1 and covenants and agrees to execute such further assurances,
discharges or releases as may be necessary to discharge all Charges against
the property, assets or undertaking of the Corporation.
4.1.3 PURCHASER SHAREHOLDERS AGREEMENT. To enter into, at the Time of
Closing, the Purchaser Shareholders Agreement and hereby authorizes the
Vendors' Representative to execute the Purchaser Shareholders Agreement on
its behalf.
4.1.4 VENDORS' REPRESENTATIVE AGREEMENT. To enter into, at the Time of
Closing, the Vendors' Representative Agreement.
4.1.5 WITHDRAWAL RIGHT. To not exercise, or attempt to exercise, any right
or entitlement which may be applicable to, or enforceable by, it under
section 87(Q) of the Financial Services and Markets Act 2000 (United
Kingdom) (as amended). The Vendor acknowledges that the issue of Vernalis
Shares to it under this Agreement will be by way of a bilateral contract
and as such section 87(Q) will not entitle it to withdraw in the event that
Vernalis publishes a supplementary prospectus. The Vendor covenants in
favour of Vernalis that, in the event it is so entitled to withdraw,
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by signing this Agreement, it is confirming its acceptance of the offer of
Vernalis Shares contained in this Agreement on the same terms immediately
after such withdrawal.
4.2 PURCHASER'S COVENANTS
The Purchaser covenants in favour of the Vendor as follows:
4.2.1 PREPAYMENT OF THE MMV LOAN. To prepay at the Time of Closing, the MMV
Loan (together with interest accrued thereon to but excluding the date of
Closing) and the Make-Whole Payment (as defined therein) calculated to but
excluding the Closing Date.
ARTICLE 5
GENERAL MATTERS
5.1 CONFIDENTIALITY
5.1.1 The Vendor shall not directly or indirectly use for its own purposes
or disclose to any other Person any confidential or proprietary
information, including know-how and data, technical or non-technical,
relating to the business of Vernalis which becomes known to the Vendor or
its accountants, legal advisers or representatives as a result of Vernalis
making the same available in connection with the transaction contemplated
hereby.
5.1.2 The Vendor shall not directly or indirectly use for its own purposes
or disclose to any Person any confidential or proprietary information of
the Corporation or the Subsidiaries, including know-how and data, technical
or non-technical, relating to the Business.
5.2 PUBLIC NOTICES
No press release or other public announcement concerning the
transaction contemplated by this Agreement shall be made by the Vendor without
the prior written consent of Vernalis.
5.3 EXPENSES
Each of the Vendor, the Purchaser and Vernalis shall be responsible
for the expenses (including fees and expenses of legal advisers, accountants and
other professional advisers) incurred by it in connection with the negotiation
and settlement of this Agreement and the completion of the transactions
contemplated hereby.
5.4 TERMINATION
This Agreement shall terminate and the obligations and covenants of
the parties hereunder, other than those set out in sections 5.1, 5.2 and 5.3,
shall terminate upon the
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termination of the Principal Purchase Agreement but shall not terminate prior
thereto in any circumstances.
5.5 ASSIGNMENT
Except as provided in this section, no party may assign its rights or
benefits under this Agreement, nor may a Vendor transfer its Purchaser Shares
except to Vernalis or an affiliate of Vernalis. The Purchaser or Vernalis may,
at any time after the Time of Closing and from time to time, assign its rights
and benefits under this Agreement, in whole or in part, to any affiliate or to
any Person who acquires all or substantially all of the assets or shares of the
Corporation.
5.6 NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by prepaid mail, by facsimile
or other means of electronic communication or by hand-delivery as hereinafter
provided. Any such notice or other communication, if mailed by prepaid mail at
any time other than during a general discontinuance of postal service due to
strike, lockout or otherwise, shall be deemed to have been received on the
seventh Business Day after the post-marked date thereof, or if sent by facsimile
or other means of electronic communication, shall be deemed to have been
received on the Business Day following the sending, or if delivered by hand
shall be deemed to have been received at the time it is delivered to the
applicable address noted below either to the individual designated below or to
an individual at such address having apparent authority to accept deliveries on
behalf of the addressee. Notice of change of address shall also be governed by
this section 5.6. In the event of a general discontinuance of postal service due
to strike, lock-out or otherwise, notices or other communications shall be
delivered by hand or sent by facsimile or other means of electronic
communication and shall be deemed to have been received in accordance with this
section 5.6. Notices and other communications shall be addressed as follows:
(a) if to the Vendor:
MMV Financial Inc.
00 Xxxxxxxxxx Xxxxxx Xxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx Xxxxxx, Senior Vice-President
Telecopier number: (000) 000-0000
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with a copy to the Vendor's counsel at:
Xxxx & Berlis LLP
Xxxxx 0000, XXX Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx Xxxxx
Telecopier number: 000-000-0000
and with a copy to the Vendors' Representative at:
The VenGrowth Advanced Life Sciences Fund Inc.
000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xx. Xxx Xxxxxxxxx/Xxxx Xxxxx
Telecopier number: 000-000-0000
(b) if to the Purchaser or Vernalis:
Vernalis plc
Xxxxxxx Xxxxx
000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx
RG 41 5UA
Attention: Xxxx Xxxxxx
Telecopier number: + 44 118 989 9300
with a copy to the Purchaser's counsel at:
Xxxxx XXX
Xxxxx 0000, 00 Xxxxxxxxxx Xxxxxx West
Box 270, TD Centre
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxxx X. Xxxxxx-Xxxxxx
Telecopier number: (000) 000-0000
and to:
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Xxxxx & Xxxxx LLP
Xxx Xxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxx Xxxxxxx
Telecopier number: + 44 20 7330 9999
The failure to send or deliver a copy of a notice to the Purchaser's
Counsel or the Vendor's Counsel, as the case may be, shall not invalidate any
notice given under this section 5.6.
5.7 TIME OF ESSENCE
Time is of the essence of this Agreement.
5.8 FURTHER ASSURANCES
Each of the parties shall promptly do, make, execute, deliver, or
cause to be done, made, executed or delivered, all such further acts, documents
and things as the other party hereto may reasonably require from time to time
for the purpose of giving effect to this Agreement and shall use reasonable
efforts and take all such steps as may be reasonably within its power to
implement to their full extent the provisions of this Agreement.
5.9 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.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement.
MMV FINANCIAL INC.
by:
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Name:
----------------------------------
Title:
---------------------------------
by:
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Name:
----------------------------------
Title:
---------------------------------
VERNALIS PLC
by:
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Name:
----------------------------------
Title:
---------------------------------
VERNALIS (CANADA) INC.
by:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
The undersigned hereby agrees to act as the Vendors' Representative
and to carry out such duties and responsibilities on behalf of the Vendor as
provided in this Agreement.
THE VENGROWTH ADVANCED LIFE SCIENCES
FUND INC., as Vendors'
Representative
by:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
by:
------------------------------------
Name:
----------------------------------
Title:
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Signature Page for MMV Purchase Agreement
