![]() NORDION INC.
(Translation of registrant's name into English)
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447 March Road
Ottawa, Ontario Canada K2K 1X8
(Address of principal executive offices)
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NORDION INC. | ||
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Date: August 28, 2013 | By: | /s/ Grant Gardiner |
Grant Gardiner |
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Title: Senior Vice President, General Counsel & Corporate Secretary |
No.
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Document
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1.
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NORDION INC. - Material Agreement
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1.
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Upon execution of this Comprehensive Settlement Agreement, AECL shall pay to Nordion CDN $15,000,000.00, plus HST.
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2.
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The Parties shall execute and deliver a Full and Final Mutual Release in the form attached as Schedule “A”.
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3.
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The Parties shall execute a consent, in the form attached as Schedule “B”, to an order dismissing the IPFA Action without costs.
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4.
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The Parties shall enter into an agreement amending and restating the ILTSA relating to the supply and purchase of, among other things, certain isotopes, and potential technical assistance and other services in the form attached as Schedule “C” (the “Amended and Restated ILTSA”).
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5.
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The Parties shall enter into an agreement relating to the supply and purchase of, among other things, certain waste disposal services in the form attached as Schedule “D” (the “Waste Management Services Agreement”).
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6.
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The Parties shall jointly advise the arbitral tribunal in the ILTSA Arbitration that all claims for costs of the ILTSA Arbitration have been fully and finally resolved and released. Despite Section 6 of Appendix “E” of the ILTSA, “Rules of Procedure for Arbitration,” as modified by the Amending Arbitration Agreement dated March 23, 2009, and the Agreement Amending the Arbitration Rules dated April 24, 2009, any outstanding and future arbitrators’ fees and expenses and costs of the hearing rooms in each case arising from or in connection with the ILTSA Arbitration shall be shared equally by the Parties, and the arbitrators shall not make any award of costs.
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7.
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The terms of this Comprehensive Settlement Agreement, including the Full and Final Release attached hereto, shall survive execution by the Parties, the dismissal of the IPFA Action, termination of the ILTSA Arbitration, and the execution and delivery by the Parties of the Amended and Restated ILTSA and the Waste Management Services Agreement.
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8.
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The Parties agree to keep the terms and conditions of this Comprehensive Settlement Agreement and the Full and Final Mutual Release, as well as the facts underlying it, confidential, to be disclosed only:
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(a)
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as required by law or by any governmental or regulatory authority, including without limitation as required by applicable securities laws; and,
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(b)
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to their accountants, auditors, financiers or other professional advisors on a confidential basis as necessary for the purposes of receiving advice.
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9.
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AECL represents and warrants as of the Effective Date of this Comprehensive Settlement Agreement, and acknowledges that Nordion is relying thereon, as follows:
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(a)
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Organization. AECL is a corporation duly organized and validly existing under the laws of Canada.
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(b)
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Authorization. AECL has full corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to carry out the transactions contemplated hereby. The execution, delivery, and performance by AECL of the Agreement have been duly authorized.
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(c)
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Enforceability. This Agreement constitutes a valid and binding obligation of AECL, enforceable against AECL in accordance with its terms subject to the following qualifications:
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(i)
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equitable remedies are discretionary and, in particular, may not be available where damages are considered an adequate remedy;
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(ii)
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pursuant to the Crown Liability and Proceedings Act (Canada), specific performance and injunctive relief may not be granted against AECL (although in lieu thereof, a court may make an order declaratory of the rights of the parties); and
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(iii)
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enforcement may be limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction and other similar laws generally affecting the enforceability of creditors’ rights.
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(d)
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No Breach of and Compliance with Applicable Laws. The execution, delivery and performance of this Agreement by AECL does not violate any Applicable Law (as defined in the Amended and Restated ILTSA) and does not breach any agreement, license, covenant, duty, court order, judgment, or decree to which AECL is a Party or by which it is bound. AECL will perform its obligations under this Agreement in a manner that complies with all Applicable Laws.
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(e)
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Conflicting Agreements. AECL is free of any contractual obligation that would prevent it from entering into this Agreement or prevent or hinder it in any way from fulfilling its obligations under this Agreement.
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(f)
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GST Number. AECL is registered under Subdivision d of Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number 106737125 RT0001.
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10.
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Nordion represents and warrants as of the Effective Date of this Comprehensive Settlement Agreement, and acknowledges that AECL is relying thereon, as follows:
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(a)
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Organization. Nordion is a corporation duly organized and validly existing under the laws of Canada.
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(b)
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Authorization. Nordion has full corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and carry out the transactions contemplated hereby. The execution, delivery and performance by Nordion of the Agreement have been duly authorized.
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(c)
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Enforceability. This Agreement constitutes a valid and binding obligation of Nordion, enforceable against Nordion in accordance with its terms subject to the following qualifications:
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(i)
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specific performance, injunction and other equitable remedies are discretionary and, in particular, may not be available where (except as otherwise provided in this Agreement) damages are considered an adequate remedy; and
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(ii)
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enforcement may be limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction and other similar laws generally affecting the enforceability of creditors’ rights.
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(d)
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No Breach of and Compliance with Applicable Laws. The execution, delivery and performance of this Agreement by Nordion does not violate any Applicable Law (as defined in the Amended and Restated ILTSA) and does not breach any agreement, license, covenant, duty, court order, judgment, or decree to which Nordion is a Party or by which it is bound. Nordion will perform its obligations under the Agreement in a manner that complies with all Applicable Laws.
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(e)
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Conflicting Agreements. Nordion is free of any contractual obligation that would prevent it from entering into this Agreement or prevent or hinder it in any way from fulfilling its obligations under this Agreement.
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(f)
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GST Number. Nordion is registered under Subdivision d of Division V of Part IX of the Excise Tax Act (Canada) and has been assigned GST/HST Number 131962086 RT0001.
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11.
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The representations and warranties made by the Parties in this Comprehensive Settlement Agreement shall survive the execution and delivery hereof and the documents and agreements contemplated hereunder. No investigations made by or on behalf of either Party at any time shall waive, diminish the scope of or otherwise affect any representation or warranty made by the Parties in this Agreement.
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12.
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This Comprehensive Settlement Agreement may be executed in counterparts. Each executed counterpart shall be deemed to be an original. All executed counterparts taken together shall constitute one and the same original agreement.
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13.
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This Comprehensive Settlement Agreement is governed by the laws of the Province of Ontario and shall enure to the benefit of and be binding upon the parties hereto and their respective successors.
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Atomic Energy of Canada Limited
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By:
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signed “Robert S. Walker”
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Name: Robert S. Walker
Title: President & CEO
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By:
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signed “J. Lundy”
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Name: J. Lundy
Title: VP, Chief Legal Officer
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Nordion (Canada) Limited
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By:
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signed “Steve West”
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Name: Steve West
Title: CEO
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By:
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signed “Peter Dans”
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Name: Peter Dans
Title: Chief Financial Officer
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i)
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under the Isotope Production Facilities Agreement (“IPFA”);
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ii)
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under the Interim and Long Term Supply Agreement (“ILTSA”) up to the date hereof;
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iii)
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that were raised in or could have been raised in Action No. CV-08-00358384-0000 in the Superior Court of Justice (commenced at Toronto), including without limitation, any matters which could have been raised by way of counterclaim; and/or
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iv)
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that were raised or could have been raised in the arbitration under the ILTSA in which an arbitral award was issued dated September 7, 2012, including without limitation, any Claim for costs of the arbitration,
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Dated: August 19, 2013
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Atomic Energy of Canada Limited
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By:
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Name:
Title:
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By:
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Name:
Title:
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Dated: August 19, 2013
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Nordion (Canada) Limited
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By:
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Name:
Title:
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By:
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Name:
Title:
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Torys LLP
Per:
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John B. Laskin
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Lawyers for the Plaintiff
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Heenan Blaikie LLP
Per:
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Ahab Abdel-Aziz / Ian Godfrey
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Lawyers for the Defendant
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……….……, THE ………
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DAY OF ………….., 2013
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Court File No. CV-08-00358384-0000
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NORDION (CANADA) INC.
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v.
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ATOMIC ENERGY OF CANADA LIMITED
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Plaintiff
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Defendant
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ONTARIO
SUPERIOR COURT OF JUSTICE
Proceeding commenced at TORONTO
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ORDER
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Torys LLP
79 Wellington St. W., Suite 3000
Box 270, TD Centre
Toronto, ON M5K 1N2
John B. Laskin (LSUC #: 19381B)
Tel: 416.865.7317 / Fax: 416.865.7380
James Gotowiec (LSUC #: 60107E)
Tel: 416.865.7981 / Fax: 416.865.7380
Lawyers for the Plaintiff
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Court File No. CV-08-00358384-0000
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NORDION (CANADA) INC.
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v.
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ATOMIC ENERGY OF CANADA LIMITED
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Plaintiff
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Defendant
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ONTARIO
SUPERIOR COURT OF JUSTICE
Proceeding commenced at TORONTO
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CONSENT
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Torys LLP
79 Wellington St. W., Suite 3000
Box 270, TD Centre
Toronto, ON M5K 1N2
John B. Laskin (LSUC #: 19381B)
Tel: 416.865.7317 / Fax: 416.865.7380
James Gotowiec (LSUC #: 60107E)
Tel: 416.865.7981 / Fax: 416.865.7380
Lawyers for the Plaintiff
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