STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated November 17, 1999, between Xxxxxx
International Inc., a Delaware corporation ("Acquisition"), and BioChem Pharma
Inc. (the "Seller").
WHEREAS, the Seller owns 11,179,114 Common Shares (the "NAV Common
Stock"), of North America Vaccine, Inc., a corporation organized under the laws
of Canada ("NAV"); and
WHEREAS, NAV, Acquisition and Neptune Acquisition Corp. have entered
into a Share Exchange Agreement (the "Share Exchange Agreement"), dated the date
hereof, providing for acquisition to acquire all the outstanding capital stock
of NAV (the "Merger"); and
WHEREAS, Seller wishes to sell to Acquisition 714,286 shares of NAV
Common Stock, and Acquisition wishes to purchase such shares from the Seller on
the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereto agree as
follows:
1. Purchase and Sale of the Shares and the Options.
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1.1. PURCHASE AND SALE OF THE SHARES AND THE OPTIONS. Subject
to the terms and conditions of this Agreement, at the Closing provided for in
Section 1.2, the Seller will sell, and Acquisition will purchase, 714,286 shares
of NAV Common Stock (the "Shares").
1.2. PURCHASE PRICE. The purchase price for the Shares shall
be U.S. $7.00 per share.
1.3. CLOSING. The closing of the purchase and sale of the
Shares (the "Closing") will take place at the offices of Xxxxxxx, Phleger &
Xxxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M. New York time on
such date as shall be mutually agreed to by the parties hereto, but in any case
on or prior to November 29, 1999. At the Closing, the Seller will deliver to
Acquisition, against payment of the purchase price therefor as provided below,
good and valid title to the Shares free and clear of any liens, charges,
encumbrances, security interests, options or rights or claims of others with
respect thereto, by (a) delivering to Acquisition certificates for the Shares,
duly endorsed in blank or accompanied by the appropriate instruments of
assignment duly executed in blank, and (b) having all requisite stock transfer
stamps attached. At the Closing, Acquisition shall pay the aggregate purchase
price for the Shares to be sold by the Seller by either delivery of a check in
New York Clearing House funds payable to the order of such Seller, or by wire
transfer of immediately available funds to an account designated by the Seller
at least three business days prior to the Closing.
2. REPRESENTATIONS OF THE SELLER. The Seller hereby represents and
warrants to Acquisition as follows:
2.1. AUTHORITY. The Seller has full power and authority to
enter into this Agreement and to carry out the terms hereof. This Agreement has
been duly executed and delivered by the Seller and constitutes the legal, valid
and binding obligation of such Seller, enforceable against the Seller in
accordance with its terms.
2.2. TITLE TO THE SHARES AND OPTIONS. The Seller owns
11,179,114 shares of NAV Common Stock, and at the time of Acquisition purchases
the Shares, Acquisition will acquire good and unencumbered title thereto, free
and clear of any lien, pledge, charge, security interest, encumbrance, title
retention agreement, adverse claim or option.
2.3. NO CONFLICT, ETC. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and the
performance by the Seller of this Agreement in accordance with its terms does
not and will not violate, conflict with, result in the breach of any term or
provision of, or constitute a default under, any agreement or instrument to
which the Seller is a party or by which the Seller is bound or any statute,
order, judgment, rule or regulation applicable to the Seller. The Seller is not
subject to any contractual restrictions relating to the disposition of the
Shares held by the Seller, and no consent, approval, authorization, order,
filing, registration or qualification of or with any court, governmental
authority or third person is required to be obtained by the Seller in connection
with the execution and delivery of this Agreement by the Seller or the sale of
such Shares as contemplated hereby.
3. REPRESENTATIONS AND WARRANTIES OF ACQUISITION. Acquisition
represents and warrants to the Seller as follows:
3.1. CORPORATE ORGANIZATION AND STANDING OF ACQUISITION.
Acquisition is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware.
3.2. AUTHORITY FOR AGREEMENT. Acquisition has the corporate
power and authority to execute and deliver this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
other transactions contemplated hereby have been duly authorized by
Acquisition's Board of Directors and this Agreement constitutes the valid and
legally binding obligation of Acquisition enforceable in accordance with its
terms.
3.3. NO CONFLICT, ETC. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and the
performance by Acquisition of this Agreement in accordance with its terms will
not violate, conflict with, result in the breach of any term or provision of, or
constitute a default under, any agreement or instrument to which Acquisition is
a party or by which Acquisition is bound or any statute, order, judgment, rule
or regulation applicable to Acquisition. No consent, approval, authorization,
order, filing, registration or qualification of or with any court, governmental
authority or third person is required to be obtained by Acquisition in
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connection with the execution and delivery of this Agreement by Acquisition and
the purchase of the Shares as contemplated hereby.
3.4. ACQUISITION OF SHARES. Acquisition is acquiring the
Shares purchased hereunder or acquired pursuant hereto solely for its own
account with the present intention of holding such securities for purposes of
investment, and that it has no intention of selling the Shares in a public
distribution in violation of the federal securities laws or any applicable state
securities laws. Each certificate or instrument representing the Shares shall be
imprinted with a legend in substantially the following form:
"THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD OR
OFFERED FOR SALE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
3.5. EVALUATION OF INVESTMENT. Acquisition is sophisticated in
financial matters and is able to evaluate the risks and benefits of the purchase
of the Shares. Acquisition has determined that the purchase of the Shares is
suitable for Acquisition based upon its financial situation and needs, as well
as its other securities holdings.
3.6. RECEIPT OF INFORMATION. Acquisition has had the
opportunity to ask questions and receive answers concerning the terms and
conditions of the sale of the Shares and has had full access to such other
information concerning NAV and its subsidiaries and affiliates as it has
requested in order to evaluate the merits and risks inherent in purchasing the
Shares.
3.7. BROKER FEES. There are no claims for brokerage
commissions, finders' fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement binding upon Acquisition. Acquisition shall pay, and hold Seller
harmless against, any liability, loss or expense (including, without limitation,
reasonable attorneys' fees and out-of-pocket expenses) arising in connection
with any such claim.
3.8. CONDITIONS TO OBLIGATIONS OF ACQUISITION. The obligation
of Acquisition to purchase the Shares is subject to the fulfillment, at or prior
to the Closing, of the following conditions:
(a) NAV and Acquisition shall have entered into the
Merger Agreement;
(b) The representations and warranties of the Seller
shall have been true and correct in all material respects when made and as of
the Closing.
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4. CONDITIONS TO OBLIGATIONS OF THE SELLER. The obligation of the
Seller to sell the Shares is subject to the fulfillment, at or prior to the
Closing of the following conditions:
(a) NAV and Acquisition shall have entered into the
Merger Agreement;
(b) The representatives and the warranties of Acquisition
shall have been true and correct in all material respects when made and as of
the Closing.
5. MISCELLANEOUS.
5.1. AMENDMENT; GOVERNING LAW. This Agreement may only be
amended by a writing signed by each of the parties. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without giving effect to applicable principles of conflict of laws. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, and all of which shall constitute one and the same instrument.
5.2. ASSIGNMENT. This Agreement may not be assigned by any
party hereto without the written consent of the other parties hereto.
5.3. EXPENSES. Each party hereto shall bear its own expenses
in connection with the execution and delivery of this Agreement.
5.4. NOTICES. All notices, waivers and other communications
hereunder or with respect hereto shall be in writing and shall be deemed to have
been duly given if signed by the respective persons giving them:
(a) If to Acquisition:
Xxxxxx International Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
with a copy to
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Esq.
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(b) If to Seller:
BioChem Pharma Inc.
000 Xxxxxx-Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxx
XXXXXX X0X 0X0
Notices given in accordance with this Section 6.4 shall be deemed to
have been given on the date delivered.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
XXXXXX INTERNATIONAL INC.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxxx
Title: President, Xxxxxx Immuno
Division
BIOCHEM PHARMA INC.
By: /s/ Xxxxxxxxx Xxxxxxx
-----------------------
Name: Xx. Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer
BIOCHEM PHARMA INC.
By: /s/ Xxxxxxx-X. Xxxxxxx
----------------------
Name: Xxxxxxx-X. Xxxxxxx
Title: Vice-President Legal Affairs
and General Counsel
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