November 17, 1999
Xxxxxx International, Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Ladies and Gentlemen:
I have been advised that as of the date of this letter agreement I may be
deemed to be an "affiliate" of North American Vaccine, Inc., a corporation
existing under the federal laws of Canada (the "Company"), as such term is
defined for purposes of paragraphs (c) and (d) of Rule 145 of the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"). Pursuant to the terms of the Share Exchange Agreement, dated
as of November 17, 1999 (the "Share Exchange Agreement"), by and among Xxxxxx
International, Inc., a Delaware corporation ("Baxter"), Neptune Acquisition
Corp., an unlimited liability company existing under the laws of the Province of
Nova Scotia ("Acquireco"), and the Company, Acquireco will acquire all of the
issued and outstanding capital stock of the Company pursuant to the Plan of
Arrangement set forth in the Share Exchange Agreement (the "Arrangement").
Pursuant to the Arrangement all of the shares of capital stock of the
Company owned by the undersigned will be converted into the right to receive a
certain number of shares of Common Stock, par value $1.00 per share, of Baxter
("Baxter Shares") and cash, pursuant to the terms of the Share Exchange
Agreement.
I represent, warrant and covenant to Baxter that, with respect to all
Baxter Shares received as a result of the Arrangement:
(a) I shall not make any sale, transfer or other disposition of the
Baxter Shares in violation of the Securities Act or the Rules and
Regulations.
(b) I have carefully read this letter and the Share Exchange
Agreement and have had an opportunity to discuss the requirements of
such documents and any other applicable limitations upon my ability
to sell, transfer or otherwise dispose of Baxter Shares with my
counsel or counsel for the Company.
(c) I have been advised that the issuance of Baxter Shares to me
pursuant to the Arrangement has been registered with the Commission
under the Securities Act. However, I have also been advised that,
since at the time the Arrangement Resolution (as defined in the
Share Exchange Agreement) was submitted for a vote of the
shareholders of the Company, I may be deemed to have been an
affiliate of the Company and the distribution by me of the Baxter
Shares has not been registered under the Securities Act, therefore I
may not sell, transfer or otherwise dispose of Baxter Shares issued
to me in the Arrangement unless (i) such sale, transfer or other
disposition has been registered under the Securities Act or is made
in conformity with Rule 145 under the Securities Act, or (ii) in the
opinion of counsel reasonably acceptable to Baxter or pursuant to a
"no action" letter obtained by the undersigned from the staff of the
Commission, such sale, transfer or other disposition is otherwise
exempt from registration under the Securities Act.
(d) I understand that, except as provided for under the Share Exchange
Agreement, Baxter is under no obligation to register under the
Securities Act the sale, transfer or other disposition of Baxter
Shares by me or on my behalf or to take any other action necessary
in order to make compliance with an exemption from such registration
available.
(e) I understand that Baxter will give stop transfer instructions to
Baxter transfer agents with respect to the Baxter Shares received by
me pursuant to the terms of the Share Exchange Agreement and that
the certificates for such Baxter Shares issued to me, or any
substitutions therefor, will bear a legend substantially to the
following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 UNDER THE SECURITIES ACT OF 1933
APPLIES. THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE
TRANSFERRED IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED."
(f) I also understand that unless the transfer by me of Xxxxxx Xxxxxx
received pursuant to the terms of the Share Exchange Agreement
has been registered under the Securities Act or is a sale made
in conformity with the provisions of Rule 145, Baxter reserves
the right to place a legend substantially to the following effect on
the certificates issued to any transferee:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED FROM A
PERSON WHO RECEIVED SUCH SECURITIES IN A TRANSACTION TO WHICH RULE
145 UNDER THE SECURITIES ACT OF 1933 APPLIES. THE SECURITIES MAY NOT
BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR IN ACCORDANCE WITH AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933."
2
It is understood and agreed that the legends set forth in paragraphs (e)
and (f) above shall be removed by delivery of substitute certificates without
such legend if such legend is not required for purposes of the Securities Act.
It is understood and agreed that such legends and the stop orders referred to
above will be removed if (i) a sale is effected in compliance with the
provisions of Rule 145(d)(1), (ii) one year shall have elapsed from the date the
undersigned acquired the Baxter Shares received in the Arrangement and the
provisions of Rule 145(d)(2) are then available to the undersigned, (iii) two
years shall have elapsed from the date the undersigned acquired the Baxter
Shares received in the Arrangement and the provisions of Rule 145(d)(3) are then
available to the undersigned or (iv) Baxter has received either an opinion of
counsel, which opinion and counsel shall be reasonably satisfactory to Baxter or
a "no action" letter obtained by the undersigned from the staff of the
Commission, to the effect that the restrictions imposed by Rule 145 under the
Securities Act no longer apply to the undersigned.
Execution of this letter should not be considered an admission on my part
that I am an "affiliate" of the Company as described in the first paragraph of
this letter.
Baxter agrees that, for a period of at least three years after the
effective date of the Arrangement, it will make publicly available the
information required by, and in the manner specified by, Rule 144(c), or any
successor rule thereto, under the Securities Act.
This letter may be executed in several counterparts, each of which shall
be an original, but all of which together shall constitute one and the same
agreement.
Sincerely,
BioChem Pharma Inc.
By: /s/ Xxxxxxxxx Xxxxxxx And by: /s/ Xxxxxxx-X. Xxxxxxx
-------------------------- ------------------------
Name: Xx. Xxxxxxxxx Xxxxxxx Name: Xxxxxxx-X. Xxxxxxx
Title: Chief Executive Officer Title: Vice-President, Legal Affairs
and General Counsel
Accepted this 17th day of November, 1999:
XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President, Xxxxxx Xxxxxx
Division
3
November 17, 1999
Xxxxxx International, Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Ladies and Gentlemen:
I have been advised that as of the date of this letter agreement I may be
deemed to be an "affiliate" of North American Vaccine, Inc., a corporation
existing under the federal laws of Canada (the "Company"), as such term is
defined for purposes of paragraphs (c) and (d) of Rule 145 of the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"). Pursuant to the terms of the Share Exchange Agreement, dated
as of November 17, 1999 (the "Share Exchange Agreement"), by and among Xxxxxx
International, Inc., a Delaware corporation ("Baxter"), Neptune Acquisition
Corp., an unlimited liability company existing under the laws of the Province of
Nova Scotia ("Acquireco"), and the Company, Acquireco will acquire all of the
issued and outstanding capital stock of the Company pursuant to the Plan of
Arrangement set forth in the Share Exchange Agreement (the "Arrangement").
Pursuant to the Arrangement all of the shares of capital stock of the
Company owned by the undersigned will be converted into the right to receive a
certain number of shares of Common Stock, par value $1.00 per share, of Baxter
("Baxter Shares") and cash, pursuant to the terms of the Share Exchange
Agreement.
I represent, warrant and covenant to Baxter that, with respect to all
Baxter Shares received as a result of the Arrangement:
(a) I shall not make any sale, transfer or other disposition of the
Baxter Shares in violation of the Securities Act or the Rules and
Regulations.
(b) I have carefully read this letter and the Share Exchange Agreement
and have had an opportunity to discuss the requirements of such
documents and any other applicable limitations upon my ability
to sell, transfer or otherwise dispose of Baxter Shares with my
counsel or counsel for the Company.
(c) I have been advised that the issuance of Baxter Shares to me
pursuant to the Arrangement has been registered with the Commission
under the Securities Act. However, I have also been advised that,
since at the time the Arrangement Resolution (as defined in the
Share Exchange Agreement) was submitted for a vote of the
shareholders of the Company, I may be deemed to have been an
affiliate of the Company and the distribution by me of the Baxter
Shares has not been registered under the Securities Act, therefore I
may not sell, transfer or otherwise dispose of Baxter Shares issued
to me in the Arrangement unless (i) such sale, transfer or other
disposition has been registered under the Securities Act or is made
in conformity with Rule 145 under the Securities Act, or (ii) in the
opinion of counsel reasonably acceptable to Baxter or pursuant to a
"no action" letter obtained by the undersigned from the staff of the
Commission, such sale, transfer or other disposition is otherwise
exempt from registration under the Securities Act.
(d) I understand that, except as provided for under the Share Exchange
Agreement, Baxter is under no obligation to register under the
Securities Act the sale, transfer or other disposition of Baxter
Shares by me or on my behalf or to take any other action necessary
in order to make compliance with an exemption from such registration
available.
(e) I understand that Baxter will give stop transfer instructions to
Baxter transfer agents with respect to the Baxter Shares received by
me pursuant to the terms of the Share Exchange Agreement and that
the certificates for such Baxter Shares issued to me, or any
substitutions therefor, will bear a legend substantially to the
following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 UNDER THE SECURITIES ACT OF 1933
APPLIES. THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE
TRANSFERRED IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED."
(f) I also understand that unless the transfer by me of Xxxxxx Xxxxxx
received pursuant to the terms of the Share Exchange Agreement
has been registered under the Securities Act or is a sale made
in conformity with the provisions of Rule 145, Baxter reserves
the right to place a legend substantially to the following effect on
the certificates issued to any transferee:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED FROM A
PERSON WHO RECEIVED SUCH SECURITIES IN A TRANSACTION TO WHICH RULE
145 UNDER THE SECURITIES ACT OF 1933 APPLIES. THE SECURITIES MAY NOT
BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR IN ACCORDANCE WITH AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933."
2
It is understood and agreed that the legends set forth in paragraphs (e)
and (f) above shall be removed by delivery of substitute certificates without
such legend if such legend is not required for purposes of the Securities Act.
It is understood and agreed that such legends and the stop orders referred to
above will be removed if (i) a sale is effected in compliance with the
provisions of Rule 145(d)(1), (ii) one year shall have elapsed from the date the
undersigned acquired the Baxter Shares received in the Arrangement and the
provisions of Rule 145(d)(2) are then available to the undersigned, (iii) two
years shall have elapsed from the date the undersigned acquired the Baxter
Shares received in the Arrangement and the provisions of Rule 145(d)(3) are then
available to the undersigned or (iv) Baxter has received either an opinion of
counsel, which opinion and counsel shall be reasonably satisfactory to Baxter or
a "no action" letter obtained by the undersigned from the staff of the
Commission, to the effect that the restrictions imposed by Rule 145 under the
Securities Act no longer apply to the undersigned.
Execution of this letter should not be considered an admission on my part
that I am an "affiliate" of the Company as described in the first paragraph of
this letter.
Baxter agrees that, for a period of at least three years after the
effective date of the Arrangement, it will make publicly available the
information required by, and in the manner specified by, Rule 144(c), or any
successor rule thereto, under the Securities Act.
This letter may be executed in several counterparts, each of which shall
be an original, but all of which together shall constitute one and the same
agreement.
Sincerely,
/s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx, M.D.
Accepted this 17th day of November, 1999:
XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President, Xxxxxx Immuno
Division
3
November 17, 1999
Xxxxxx International, Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Ladies and Gentlemen:
I have been advised that as of the date of this letter agreement I may be
deemed to be an "affiliate" of North American Vaccine, Inc., a corporation
existing under the federal laws of Canada (the "Company"), as such term is
defined for purposes of paragraphs (c) and (d) of Rule 145 of the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"). Pursuant to the terms of the Share Exchange Agreement, dated
as of November 17, 1999 (the "Share Exchange Agreement"), by and among Xxxxxx
International, Inc., a Delaware corporation ("Baxter"), Neptune Acquisition
Corp., an unlimited liability company existing under the laws of the Province of
Nova Scotia ("Acquireco"), and the Company, Acquireco will acquire all of the
issued and outstanding capital stock of the Company pursuant to the Plan of
Arrangement set forth in the Share Exchange Agreement (the "Arrangement").
Pursuant to the Arrangement all of the shares of capital stock of the
Company owned by the undersigned will be converted into the right to receive a
certain number of shares of Common Stock, par value $1.00 per share, of Baxter
("Baxter Shares") and cash, pursuant to the terms of the Share Exchange
Agreement.
I represent, warrant and covenant to Baxter that, with respect to all
Baxter Shares received as a result of the Arrangement:
(a) I shall not make any sale, transfer or other disposition of the
Baxter Shares in violation of the Securities Act or the Rules and
Regulations.
(b) I have carefully read this letter and the Share Exchange Agreement
and have had an opportunity to discuss the requirements of such
documents and any other applicable limitations upon my ability
to sell, transfer or otherwise dispose of Baxter Shares with my
counsel or counsel for the Company.
(c) I have been advised that the issuance of Baxter Shares to me
pursuant to the Arrangement has been registered with the Commission
under the Securities Act. However, I have also been advised that,
since at the time the Arrangement Resolution (as defined in the
Share Exchange Agreement) was submitted for a vote of the
shareholders of the Company, I may be deemed to have been an
affiliate of the Company and the distribution by me of the Baxter
Shares has not been registered under the Securities Act, therefore I
may not sell, transfer or otherwise dispose of Baxter Shares issued
to me in the Arrangement unless (i) such sale, transfer or other
disposition has been registered under the Securities Act or is made
in conformity with Rule 145 under the Securities Act, or (ii) in the
opinion of counsel reasonably acceptable to Baxter or pursuant to a
"no action" letter obtained by the undersigned from the staff of the
Commission, such sale, transfer or other disposition is otherwise
exempt from registration under the Securities Act.
(d) I understand that, except as provided for under the Share Exchange
Agreement, Baxter is under no obligation to register under the
Securities Act the sale, transfer or other disposition of Baxter
Shares by me or on my behalf or to take any other action necessary
in order to make compliance with an exemption from such registration
available.
(e) I understand that Baxter will give stop transfer instructions to
Baxter transfer agents with respect to the Baxter Shares received by
me pursuant to the terms of the Share Exchange Agreement and that
the certificates for such Baxter Shares issued to me, or any
substitutions therefor, will bear a legend substantially to the
following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 UNDER THE SECURITIES ACT OF 1933
APPLIES. THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE
TRANSFERRED IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED."
(f) I also understand that unless the transfer by me of Xxxxxx Xxxxxx
received pursuant to the terms of the Share Exchange Agreement
has been registered under the Securities Act or is a sale
made in conformity with the provisions of Rule 145, Baxter reserves
the right to place a legend substantially to the following effect on
the certificates issued to any transferee:
2
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED FROM A
PERSON WHO RECEIVED SUCH SECURITIES IN A TRANSACTION TO WHICH RULE
145 UNDER THE SECURITIES ACT OF 1933 APPLIES. THE SECURITIES MAY NOT
BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR IN ACCORDANCE WITH AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933."
It is understood and agreed that the legends set forth in paragraphs (e)
and (f) above shall be removed by delivery of substitute certificates without
such legend if such legend is not required for purposes of the Securities Act.
It is understood and agreed that such legends and the stop orders referred to
above will be removed if (i) a sale is effected in compliance with the
provisions of Rule 145(d)(1), (ii) one year shall have elapsed from the date the
undersigned acquired the Baxter Shares received in the Arrangement and the
provisions of Rule 145(d)(2) are then available to the undersigned, (iii) two
years shall have elapsed from the date the undersigned acquired the Baxter
Shares received in the Arrangement and the provisions of Rule 145(d)(3) are then
available to the undersigned or (iv) Baxter has received either an opinion of
counsel, which opinion and counsel shall be reasonably satisfactory to Baxter or
a "no action" letter obtained by the undersigned from the staff of the
Commission, to the effect that the restrictions imposed by Rule 145 under the
Securities Act no longer apply to the undersigned.
Execution of this letter should not be considered an admission on my part
that I am an "affiliate" of the Company as described in the first paragraph of
this letter.
Baxter agrees that, for a period of at least three years after the
effective date of the Arrangement, it will make publicly available the
information required by, and in the manner specified by, Rule 144(c), or any
successor rule thereto, under the Securities Act.
This letter may be executed in several counterparts, each of which shall
be an original, but all of which together shall constitute one and the same
agreement.
Sincerely,
FROST-NEVADA, LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: XXXXX XXXXXXXXX
--------------------------------
Title: PRESIDENT OF FROST NEVADA
CORPORATION, GENERAL PARTNER OF
FROST-NEVADA LIMITED PARTNERSHIP
--------------------------------
Accepted this 17th day of November, 1999:
XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President, Xxxxxx Immuno
Division
3
