-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PI9gTotV5HMc0+WX9l2MIZ7aAGm2hEvZruqY8rKSx1AXa9fw9vr/cZ1vaZ8/dbvx I4jx6hkiqpHJsnjSbmmH+A== 0000950123-99-006867.txt : 19990729 0000950123-99-006867.hdr.sgml : 19990729 ACCESSION NUMBER: 0000950123-99-006867 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19990728 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NORTH AMERICAN VACCINE INC CENTRAL INDEX KEY: 0000856573 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 980121241 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-49421 FILM NUMBER: 99671318 BUSINESS ADDRESS: STREET 1: 10150 OLD COLUMBIA ROAD CITY: COLUMBIA STATE: MD ZIP: 21046 BUSINESS PHONE: 4103097100 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BIOCHEM PHARMA INC CENTRAL INDEX KEY: 0000867202 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 000000000 STATE OF INCORPORATION: E6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 275 ARMAND-FRAPPIER BLVD CITY: LAVAL QUEBEC STATE: E6 BUSINESS PHONE: 5146811744 MAIL ADDRESS: STREET 1: 275 ARMAND FRAPPIER BLVD CITY: LAVAL QUEBEC STATE: E6 SC 13D/A 1 AMENDMENT #8 TO SCHEDULE 13D 1 Page 1 of 7 Pages UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 8)* North American Vaccine, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, No Par Value - -------------------------------------------------------------------------------- (Title of Class of Securities) 657-201-109 - -------------------------------------------------------------------------------- (CUSIP Number) Charles-A. Tessier, Vice-President, Legal Affairs and General Counsel BioChem Pharma Inc., 275 Armand Frappier Boulevard, Laval, Quebec H7V 4A7 Canada - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 21, 1999 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box / /. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 SCHEDULE 13D CUSIP NO. 657-201-109 Page 2 of 7 pages - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON BIOCHEM PHARMA INC. - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) / / - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Laval, Quebec, Canada - ------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES 15,040,704 BENEFICIALLY ---------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH REPORTING PERSON ---------------------------------------------------------------- WITH 9 SOLE DISPOSITIVE POWER 15,040,704 ---------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,040,704 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / n/a - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 41.6% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! 3 Page 3 of 7 Pages Item 1. Security and Issuer. This Amendment relates to the common stock, no par value (the "Common Stock") of North American Vaccine, Inc. (the "Company"), 12103 Indian Creek Court, Beltsville, Maryland, U.S.A. 20705. Item 2. Identity and Background. This Amendment is being filed by BioChem Pharma Inc. ("BioChem"). BioChem is a publicly-owned Canadian pharmaceutical company incorporated under the laws of Canada. BioChem has specialized since 1986 in the research, development, manufacture and sale of products for the diagnosis, treatment and prevention of human diseases. The principal executive offices of BioChem are at 275 Armand-Frappier Boulevard, Laval, Quebec, H7V 4A7 and its telephone number is (450) 681-1744. A list of BioChem's Directors and Executive Officers is included as Exhibit 5 to this Amendment. Neither BioChem, nor, to the best of BioChem's knowledge, any of BioChem's Directors or Executive officers has during the last five years, or at any time prior thereto: (a) been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors); or (b) been party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in its having been or being subject to a judgement, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. On July 1, 1999, BioChem executed an Agreement (the "Agreement"), whereby BioChem agreed to provide an unsecured guaranty (the "Guaranty") for a line of credit (the "Line of Credit") that the Company was seeking to secure from Royal Bank of Canada. In consideration of BioChem's agreement to provide the Guaranty, the Company has agreed to grant BioChem warrants (each a "Warrant" and collectively, the "Warrants") to purchase up to 750,000 shares of the Company's Common Stock (the "Warrant Shares") at an exercise price of $5.14 per share, subject to adjustment. The Company will issue the Warrants to BioChem as follows: for each U.S. $1 million (or fraction thereof) of principal amount drawn by the Company under the Line of Credit, the Company shall issue to BioChem a Warrant to purchase 125,000 shares of the Company's Common Stock. Each Warrant will be exercisable immediately upon issuance by the Company. As of the date hereof, the Company has issued 250,000 Warrants to BioChem. BioChem expects to use its working capital to fund the purchase of any Warrant Shares upon grant and exercise of any Warrants. 4 Page 4 of 7 Pages Item 4. Purpose of Transaction BioChem intends to maintain its interests in the securities of the Company (including the Notes (as defined below)) as an investment. BioChem may acquire additional shares of Common Stock or other securities of the Company (subject to availability of such securities at prices deemed favorable) in the open market, in privately negotiated transactions, by tender offer or otherwise. Alternatively, BioChem reserves the right to dispose of some or all of its shares of the Company's Common Stock (including any obtained upon conversion of the Notes or exercise of the Options (as defined below) or Warrants) in the open market or in privately negotiated transactions or otherwise depending upon the courses of action that BioChem or the Company pursues, market conditions and other factors. Although the foregoing represents the range of activities presently contemplated by BioChem with respect to the shares of the Company's Common Stock, it should be noted that possible activities of BioChem are subject to change at any time. Except as otherwise stated herein, BioChem has no present plans or proposals which relate to or would result in any actions described in subparagraphs (a) through (j) of Schedule 13D. Item 5. Interest in Securities of the Issuer. (a) BioChem owns 11,179,114 shares of the Company's Common Stock, 1,000,000 shares of the Company's Class A Preferred Stock, options to purchase 57,812 shares of the Company's Common Stock (the "Options"), $9,000,000 principal amount of the Company's 4.5% convertible secured notes due 2003 (the "Notes") which are convertible into the Company's Common Stock. Assuming grant and exercise of all the Warrants BioChem would beneficially own an aggregate amount of 15,040,704 of the Company's Common Stock representing 41.6% of the Company's Common Stock. (b) The amount disclosed includes 1,000,000 shares of the Company's Class A Preferred Stock which are convertible into 2,000,000 shares of the Company's Common Stock, 57,812 shares of the Company's Common Stock which may be purchased upon the exercise of stock options currently exercisable, 1,053,778 shares of the Company's Common Stock into which the Notes are currently convertible and 750,000 of the Warrant Shares. BioChem disclaims beneficial ownership of 500,000 of the Warrant Shares until the relevant Warrants are granted and become exercisable. 5 Page 5 of 7 Pages (c) BioChem has sole and exclusive voting and dispositive power with respect to all shares of the Company's Common Stock and Class A Preferred Stock. Item 6. Contracts, Arrangements, Understandings or Relationships With respect to Securities of the Issuer. No change from the Schedule 13D as originally filed and subsequently amended except as set forth below. The Company has agreed to include the Warrant Shares in the definition of "Registrable Securities" as that term is defined in Schedule 4 to the Share Purchase Agreement by and between the Company and BioChem dated January 17, 1990, as amended (the "Share Purchase Agreement"). Therefore, the Warrant Shares shall be subject to all terms and conditions of BioChem's registration rights as specified in Section One of Schedule 4 to the Share Purchase Agreement. The description of the agreements contained herein is not intended to be complete and is qualified in its entirety by reference to such agreements which are attached hereto as Exhibits 1 through 4 and incorporated herein by reference. Item 7. Material to be Filed as Exhibits. 1. Agreement, dated July 1, 1999, by and between the Company and BioChem, regarding the provision of the Guaranty and the granting of the Warrants. 2. Form of Guaranty, in favor of Royal Bank of Canada regarding the Line of Credit. 3. Form of Warrant (Contained in Exhibit 1). 4.a Share Purchase Agreement dated January 17, 1990 by and between the Company and BioChem. 4.b Amendment to Share Purchase Agreement dated as of January 8, 1998 between the Company and BioChem. 5. List of BioChem's Directors and Executive Officers 6 Page 6 of 7 Pages Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. BIOCHEM PHARMA INC. By: /s/ Charles-A. Tessier ----------------------------- Charles-A. Tessier Vice-President, Legal Affairs and General Counsel Dated: July 27, 1999 7 Page 7 of 7 Pages EXHIBIT INDEX 1. Agreement, dated July 1, 1999, by and between the Company and BioChem, regarding the provision of the Guaranty and the granting of the Warrants. 2. Form of Guaranty, in favor of Royal Bank of Canada regarding the Line of Credit. 3. Form of Warrant (Contained in Exhibit 1). 4.a Share Purchase Agreement dated January 17, 1990 by and between the Company and BioChem. 4.b Amendment to Share Purchase Agreement dated as of January 8, 1998 between the Company and BioChem. 5. List of BioChem's Directors and Executive Officers. EX-99.1 2 AGREEMENT DATED 07-01-99 1 July 1, 1999 BioChem Pharma Inc. 275 Armand Frappier Blvd Laval, Quebec H7V 4A7 Canada Re: Guaranty of $6 Million (US) Line of Credit Gentlemen: As you know, North American Vaccine, Inc. ["NVX"] is presently seeking a line of credit [the "Line of Credit"] from Royal Bank of Canada in the principal amount of Six Million Dollars (US) [$6,000,000 (US)] [the "Principal Amount"]. The bank has indicated its intention to provide the Line of Credit in the Principal Amount to NVX in accordance with the term sheet a copy of which attached hereto provided that it receives an unsecured guaranty [the "Guaranty"] from BioChem Pharma Inc. ["BioChem"] in favor of, and in a form acceptable to, the bank supporting all amounts drawn down under the Line of Credit. This letter is to confirm the agreement between NVX and BioChem under which BioChem will provide the Guaranty of up to the Principal Amount to support the Line of Credit proposed to be extended to NVX by Royal Bank of Canada, or any other mutually acceptable lending institution ["Lender"]. 1. PROVISION OF GUARANTY 1 2 a. Subject to approval by its board of directors, which shall be obtained on or before July 9, 1999, BioChem hereby agrees to provide the Guaranty in favor of, and in a form acceptable to, the Lender up to the Principal Amount. The Guaranty shall be furnished to the Lender in consideration of the Lender's commitment to extend a Line of Credit to NVX in the Principal Amount. BioChem shall execute and deliver such documents and agreements as may be required by the Lender to implement the Guaranty in favor of the Lender within five (5) business days of receiving the request of the Lender. BioChem shall not be required to provide the Guaranty if the Lender does not provide the Line of Credit to NVX. b. BioChem agrees that the Guaranty shall remain in effect for a period of not less than twenty-four (24) continuous months ["Guaranty Period"] to support the Line of Credit and/or any successor line of credit or other credit facility obtained by or for NVX; provided, however, at no time shall the Guaranty exceed the Principal Amount and provided further that no successor line of credit or other credit facility contain terms and condition that are less favorable to NVX than those contained in the Line of Credit collateralized by the Guaranty and provided further that no successor line of credit or other credit facility that will be collateralized by the Guaranty shall be entered into by NVX without BioChem's express written consent that will not be unreasonably withheld, conditioned or delayed. 2 BioChem Pharma Inc. July 1, 1999 Page 2 of 8 c. BioChem agrees to provide NVX with all reasonable cooperation and assistance in obtaining a successor or replacement line of credit, loan or credit facility for NVX if the Line of Credit expires unrenewed or unextended before the expiration of the Guaranty Period, including without limitation executive and delivery of all documents requested by Lender; provided, however that such cooperation shall not be more onerous to BioChem than that required of it in the initial issuance of the Guaranty and provided further that the amount of the successor or replacement line of credit that will be collateralized by the Guaranty shall not exceed the Principal Amount. d. As a condition to BioChem's obligation to issue the Guaranty, NVX agrees to give BioChem at least two (2) business days notice of its intention to draw any borrowings under the Line of Credit. In addition, NVX understands, and the relevant documents and agreements shall reflect to the greatest extent possible, that BioChem's guarantee obligation under the Guaranty shall be one of collection and that the Lender shall be required to exercise all commercially reasonable remedies, short of litigation to final judgment, to satisfy NVX's obligations under the Line of Credit prior to requiring payments by BioChem pursuant to the Guaranty. 2. ISSUANCE OF WARRANT In consideration of BioChem providing the Guaranty to the Lender as contemplated by Article 1 above, NVX agrees that it shall issue to BioChem one or more Stock Purchase Warrant(s) (individually referred to herein as the "Warrant" and collectively referred to herein as the "Warrants") in form and content substantially the same as that attached hereto and incorporated herein by this reference on the following terms and conditions: a. The exercise price of the Warrants shall be the average of the closing prices of the common stock of NVX on the American Stock Exchange over a period of five trading days commencing on June 28, 1999 and ending July 2, 1999. b. If the Line of Credit is drawn down by NVX for the full amount of the Principal Amount, BioChem shall be entitled to one or more Warrant(s) to purchase a total of Seven Hundred Fifty Thousand (750,000) shares of common stock of NVX. Accordingly, a Warrant shall be issued ratably as NVX draws down on the Line of Credit as follows: for each One Million Dollars (US) [$1,000,000 (US)] (or fraction thereof) of principal amount drawn down by NVX under the Line of Credit, NVX shall issue to BioChem a Warrant to acquire One Hundred Twenty Five Thousand (125,000) shares of common stock of NVX. c. Each Warrant shall have a term of two (2) years from the date of issuance and shall be non-negotiable and non-transferable except under the terms and conditions set forth therein. d. The shares of common stock of NVX issuable upon exercise of each Warrant [the "Warrant Shares"] shall be fully reserved for issuance at all times during which the Warrant is issued and outstanding and, at the time of delivery if such Warrant is duly and properly exercised, shall be validly issued and outstanding, fully paid and non-assessable. 3 BioChem Pharma Inc. July 1, 1999 Page 3 of 8 3. TRANSFER RESTRICTIONS AND REPRESENTATIONS In connection with the issuance of the Warrants and the Warrant Shares [collectively the "Securities"], BioChem hereby acknowledges that the Securities will be issued to it pursuant to an exemption from the registration provisions of the Securities Act of 1933, as amended, and other applicable securities laws [collectively the "Securities Acts"]. BioChem specifically acknowledges and agrees that: a. the purchase of the Securities involves a high degree of risk in that an investment in the Company is highly speculative and BioChem may suffer a loss of its entire investment; b. the transferability of the Securities will be limited as set forth below and thus it may not be able to liquidate all or any portion of the investment; c. it is able, either alone or with an investor representative, to evaluate the merits and risks of this investment and that it recognizes the highly speculative nature of this investment; d. it has had access to all information regarding NVX that it has requested or desired to know, that all documents which could be reasonably provided have been made available for its inspection and review and that it has been afforded the opportunity to ask question of and receive answers from duly authorized officers or other representatives of the NVX concerning this transaction and any additional information that it has requested; e. the Securities are being acquired for its own account, for investment purposes only and not with a view to distribution or resale to others and that the exemption from the registration requirements of the Securities Act being claimed by NVX for this transaction is dependent, in part, on BioChem's investment intent; f. it understands there is no public market for the Warrants and none is likely to develop; g. it is an "accredited investor" within the meaning of Section 2(15) and/or Rule 501 under the Securities Act; h. it understands that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Acts, that the Securities will not be registered under the Securities Acts and that it may not resell, pledge or otherwise transfer any such Securities except in accordance with the terms and restrictions contained in the Warrants and in a transaction exempt from the registration requirements of the Securities Acts. 4 BioChem Pharma Inc. July 1, 1999 Page 4 of 8 i. it consents to the placement of a legend on the Securities stating that they have not been registered under the Securities Acts and setting forth or referring to the restrictions on transferability and sale thereof. 4. OTHER REPRESENTATIONS AND WARRANTIES a. BioChem represents and warrants as follows: i BioChem is a corporation duly organized and existing under the laws of Canada and has the corporate power to conduct the business that it conducts and proposes to conduct; ii Upon approval of this agreement by the Board of Directors of BioChem, the execution, delivery and performance of this agreement by BioChem will be duly approved by all necessary corporate action, and all other corporate authorities, approvals and actions required to authorize BioChem to issue the Guaranty and to receive the Warrants and purchase the Warrant Shares will have been duly taken and approved; iii The consummation of the transactions contemplated by this agreement will not violate or constitute a default under BioChem's organizational documents or any material agreements to which BioChem is a party or by which its properties are bound or constitute a violation of any material order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign; iv. It has not retained a placement or selling agent, broker or dealer to represent it in the acquisition of the Warrants or the Warrant Shares and no person has any claim or right to any commission or other remuneration as a result of contract or agreement with BioChem in connection with the execution or consummation of the transactions contemplated by this agreement. b. NVX represents and warrants as follows: i NVX is a corporation duly organized and existing under the laws of Canada and has the corporate power to conduct the business that it conducts and proposes to conduct; ii The execution, delivery and performance of this agreement by NVX has been duly approved by the Board of Directors of NVX and all other corporate actions required to authorize and effect the issuance of the Warrants and sale of the Warrant Shares have been duly taken and approved; iii The Warrant Shares have been duly and validly authorized and when issued and paid for in accordance with the terms and conditions of the Warrants will be validly issued, fully paid and non-assessable shares of common stock of NVX; 5 BioChem Pharma Inc. July 1, 1999 Page 5 of 8 iv. NVX is not in violation or default under, nor will the execution and delivery of this agreement, the issuance of the Warrants or the Warrant Shares and the incurrence of the obligations herein and therein set forth and the consummation of the transaction contemplated hereby and thereby, result in a violation of, or constitute a default under, NVX's certificate of incorporation or by-laws; v. The consummation of the transactions contemplated by this agreement will not violate or constitute a default under any material agreements to which NVX is a party or by which its properties are bound or constitute a violation of any material order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign. vi. no consent, approval or filing with any governmental authority or other party is required by NVX for the consummation of the transactions contemplated by this agreement including in connection with the issuance of the Warrants and the Warrant Shares other than the required and applicable notices and filings to be made with the U.S. Securities & Exchange Commission, notices, filings and approvals requited by state and provincial securities regulatory authorities, and notices and listing agreements with the American Stock Exchange. 5. REGISTRATION RIGHTS NVX and BioChem agree that the Warrant Shares shall be included in the definition of "Registrable Securities" as that term is defined in Schedule 4 to the Share Purchase Agreement between the parties dated January 17, 1990, as amended, ("Share Purchase Agreement") and that as such, the Warrant Shares shall be subject to all terms and conditions of BioChem's registration rights as specified in Section One of Schedule 4 to the Share Purchase Agreement. As a consequence of this Section 5, the definition of "Registrable Securities" as set forth in Schedule 4, Section 1.1 to the Share Purchase Agreement is hereby modified to add new Subsections (iii) and (iv) at the end thereof to read in its entirety as follows: "Registrable Securities" shall mean (i) the Common Shares, (ii) any NAVA common shares issued pursuant to the Options or issued or issuable in respect of the Common Shares, upon any stock split, stock dividend, recapitalization, or similar event, so long as the Common Shares and any NAVA common shares issued in respect of the Common Shares are owned by BioChem, (iii) any NAVA common shares issued pursuant to the exercise of one or more Warrant(s) ("Warrant Shares"), which Warrant or Warrants are granted to BioChem pursuant to the terms of that certain letter agreement dated July 1, 1999 between NAVA and BioChem and (iv) any NAVA common shares issued or issuable in respect of the Warrant Shares, upon any stock split, stock dividend, recapitalization, or similar event, so long as the Warrant Shares and any NAVA common shares issued in respect of the Warrant Shares are owned by BioChem. 6. OTHER MATTERS a. No modification, amendment, deletion, addition or other change in this 6 BioChem Pharma Inc. July 1, 1999 Page 6 of 8 agreement or any provision hereof, or waiver of any right or remedy herein provided, shall be effective for any purpose unless specifically set forth in a writing signed by the Party to be bound thereby. No waiver of any right in respect of an occurrence or event on one occasion shall be deemed a waiver of such right or remedy in respect of such occurrence or event on any other occasion. b. Any notice required to be given hereunder shall be in English language, in writing and shall be deemed to have been duly given and received upon transmission when telecopied with verification of receipt or upon delivery if sent by Federal Express, DHL or other internationally recognized overnight or express courier. Addresses for the delivery of notices shall be as follows: For BioChem: BioChem Pharma Inc., 275 Armand Frappier Boulevard, Laval, Quebec H7V 4A7, Canada; Attn: Chief Financial Officer ; Telecopy: 1-450-978-7755. For NVX: North American Vaccine, Inc.; 10150 Old Columbia Road; Columbia, MD 21046 USA; Attn: Vice President Finance; Telecopy: (410) 309-4077 c. Notwithstanding the place where this agreement may be executed by any of the parties hereto, the parties expressly agree that all the terms and provision hereof shall be construed in accordance with and governed by the laws of the State of New York (regardless of the laws that might be applicable under principles of conflicts of law), including without limitation as to all matters of validity, construction, effect and performance. d. This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. e. This agreement shall be binding on and inure to the benefit of the parties hereto and to their respective successors and permitted assigns. This agreement may not be assigned by operation of law, by "change of control" of NVX or otherwise, without the express written consent of BioChem. For purposes of this agreement, the term "change of control" shall include either of the following events: (i) any "Person" and/or "Group" (as such terms are used in Section 13(d) of the Securities Exchange Act of 1934, as amended, (the "Exchange Act")] other than BioChem or its affiliates, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act] directly or indirectly of more than thirty percent (30%) of NVX's total outstanding voting securities, provided however the acquisition of beneficial ownership by such Person or Group of more than thirty percent (30%) of NVX's total outstanding voting securities, which acquisition was accomplished in whole or in part by virtue of a purchase or a series of related purchases of securities, rights, or instruments from BioChem and/or its affiliates, shall not be considered a change of control; or (b) NVX consolidates or merges with or into any Person, or conveys, transfers, leases or otherwise disposes of all or substantially all of its assets to any Person, or any Person consolidates with or 7 BioChem Pharma Inc. July 1, 1999 Page 7 of 8 merges into NVX, in any such event pursuant to a transaction in which the outstanding voting securities of NVX is converted into or exchanged for cash, securities or other properties. In the event of a "change of control" of NVX, BioChem shall have the right to cancel this agreement and the Guaranty. The cancellation of this agreement and the Guaranty in connection with a change of control of NVX shall in no way modify the terms and conditions of the Warrant(s) that might have been issued by NVX to BioChem hereunder. f. This agreement sets forth the entire understanding of the parties as to the subject matter hereof and merges and supercedes all prior discussions, agreements and understandings of any and very nature among them. g. Each party agrees to take or cause to be taken such further actions, to execute, deliver and file or cause to be executed, delivered and filed such further documents and instruments, and to obtain such consents as may be necessary or as may be reasonably requested in order fully to effectuate the purposes, terms and conditions of this agreement. h. This agreement is written and executed in the English language. It is understood that, for purposes of obtaining the regulatory approval of the agreement by appropriate governmental authorities, that the text of this agreement, if necessary, may be translated into appropriate language(s). In the event of a difference in the meaning between the translated text and the English text, the English text shall govern. Il est de la volonte expresse des parties que cette convention et touts les documents s'y rattachant soient rediges et signes en anglais. * * * * Please acknowledge your acceptance and agreement with the terms of this agreement by signing and returning the enclosed copy of this letter. Sincerely, North American Vaccine, Inc. By: /s/ Daniel J. Abdun-Nabi ---------------------------- Name: Daniel J. Abdun-Nabi Title: Senior Vice President Legal Affairs & General Counsel ACCEPTED AND AGREED this 1st day of July, 1999 8 BioChem Pharma Inc. July 1, 1999 Page 8 of 8 BioChem Pharma Inc By: /s/ Francois Legault -------------------------------- Name: Francois Legault Title: Executive Vice President DVT Corporate By: /s/ Charles-A. Tessier -------------------------------- Name: Charles-A. Tessier Title: Vice President Legal Affairs & General Counsel 9 THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR PROVINCE OF CANADA AND SUCH SECURITIES MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM NORTH AMERICAN VACCINE, INC. Warrant for the Purchase of Common Shares No. W-1 _____________ Shares FOR VALUE RECEIVED, NORTH AMERICAN VACCINE, INC. (the "Company"), a Canadian corporation, hereby certifies that BioChem Pharma Inc. or its permitted assigns (the "Holder") is entitled to purchase from the Company, at any time or from time to time after the date set forth on the signature page, but prior to 5:00 p.m. on ___________, 200_, _________________ (_______) fully paid and non-assessable common shares, no par value, of the Company for an aggregate purchase price of $____________ (computed on the basis of $____ per share). (Hereinafter, (i) said common shares, together with any other equity securities which may be issued by the Company in substitution therefor, are referred to as the "Common Shares", (ii) the Common Shares purchasable hereunder are referred to as the "Warrant Shares", (iii) the aggregate purchase price payable hereunder for the Warrant Shares is referred to as the "Aggregate Warrant Price", (iv) the price payable hereunder for each of the Warrant Shares, as adjusted in the manner set forth in Section 3, is referred to as the "Per Share Warrant Price" and (v) this Warrant and all warrants hereafter issued in exchange or substitution for this Warrant are referred to as the "Warrants") The Aggregate Warrant Price is not subject to adjustment. The Per Share Warrant Price and the number of Warrant Shares are subject to adjustment as hereinafter provided. 1. Exercise of Warrant. This Warrant may be exercised, in whole at any time or in part from time to time (such partial exercises to be in amounts of not less than 1,000 Warrant Shares), on and after the date set forth on the signature page, but prior to 5:00 p.m. on _____, 200_, by the Holder of this Warrant by the surrender of this Warrant (with the subscription form at the end hereof duly executed) at the principal office of the Company in Columbia, MD together with proper payment of the Aggregate Warrant Price applicable on such date, or the proportionate part thereof if this Warrant is exercised in part. Payment for Warrant Shares shall be made by (i) check payable to the order of the Company, (ii) wire transfer to an account designated by and in the name of the Company, (iii) by delivery to the Company of debt securities for which it is the issuer and bound to make payment in the stated principal amount, where the principal amount on such debt security 1 10 delivered to the Company for retirement is equal to the Aggregate Warrant Price; or (iv) by any combination of the methods set forth in (i) through (iii), above. If this Warrant is exercised in part, this Warrant must be exercised for a number of whole Warrant Shares, and the Holder is entitled to receive a new Warrant covering the number of Warrant Shares in respect of which this Warrant has not been exercised and setting forth the proportionate part of the Aggregate Warrant Price applicable to such Warrant Shares. Upon such surrender of this Warrant, the Company will issue a certificate or certificates in the name of the Holder for the largest number of whole Warrant Shares to which the Holder shall be entitled and, if this Warrant is exercised in whole, in lieu of any fractional Warrant Share to which the Holder shall be entitled, cash equal to the fair value of such fractional share (determined in such reasonable manner as the Board of Directors of the Company shall determine). 2. Reservation of Warrant Shares. The Company agrees that, prior to the expiration of this Warrant, the Company will at all times have authorized and reserve, and will keep available, solely for issuance or delivery upon the exercise of this Warrant, the Warrant Shares free and clear of all restrictions on sale or transfer (except as may arise under applicable securities laws) and free and clear of all preemptive rights. 3. Protection Against Dilution. (a) If, at any time or from time to time after the date of this Warrant, the Company shall (i) issue to the holders of the Common Shares any Common Shares by way of a stock dividend; (ii) subdivide its outstanding Common Shares into a greater number of shares; (iii) combine its outstanding number of Common Shares into a smaller number (i.e., a reverse stock split); or (iv) issue by reclassification of its Common Shares any shares of capital stock of the Company then, and in each such case, the Per Share Warrant Price in effect immediately prior to the date of such action shall be adjusted, or further adjusted, to a price (to the nearest cent) determined by dividing (x) an amount equal to the number of Common Shares outstanding immediately prior to such issuance multiplied by the Per Share Warrant Price in effect immediately prior to such issuance by (y) the total number of Common Shares outstanding immediately after such issuance. Upon each adjustment in the Per Share Warrant Price resulting from a stock split or stock dividend, the number of Warrant Shares shall be adjusted by dividing the Aggregate Warrant Price by the Per Share Warrant Price in effect immediately after such adjustment. Notice of each such adjustment and each such readjustment shall be forthwith mailed to the Holder. (b) If the Company shall be consolidated with or merged into another corporation, or shall sell all or substantially all of its assets as part of a reorganization to which the Company is a party within the meaning of the Internal Revenue Code of 1986, as presently in effect, or shall issue a security convertible into its Common Shares as a dividend on its Common Shares, each Warrant Share shall be replaced for the purposes hereof by the securities or properties issuable or distributed in respect of one Common Share upon such consolidation, merger, sale, reclassification or reorganization, and adequate provisions to that effect shall be made at the time thereof. Notice of 2 11 such consolidation, merger, sale, reclassification or reorganization, and of said provisions so proposed to be made, shall be mailed to the Holder not less than 15 days prior to such event. (c) If the Board of Directors of the Company shall declare any dividend or other distribution in cash with respect to the Common Shares, other than out of surplus, the Company shall mail notice thereof to the Holder not less than 15 days prior to the record date fixed for determining shareholders entitled to participate in such dividend or other distribution. (d) If , during the term of this Warrant, the Company shall issue or sell its Common Shares for a consideration per share less than the Per Share Warrant Price immediately prior to the time of such issue or sale, then forthwith upon such issue or sale, the Per Share Warrant Price in effect immediately prior to such issue or sale shall be reduced to the lower of the prices (calculated to the nearest cent) determined as follows: (1) by dividing (A) an amount equal to the sum of (i) the number of shares of Common Stock outstanding immediately prior to such issue or sale multiplied by the then-existing Per Share Warrant Price, and (ii) the consideration, if any, received by the Company upon such issue or sale, by (B) the total number of Common Shares outstanding immediately after such issue or sale; and (2) by multiplying the Per Share Warrant Price in effect immediately prior to the time of such issue or sale by a fraction, the numerator of which shall be (A) the sum of (i) the number of Common Shares outstanding immediately prior to such issue or sale multiplied by the market price immediately prior to such issue or sale; and (ii) the consideration received by the Company upon such sale, divided by (B) the total number of Common Shares outstanding immediately after such issue or sale, and the denominator of which shall be the market price immediately prior to such issue or sale. 4. Fully Paid Shares; Taxes. The Company agrees that the Common Shares represented by each and every certificate for Warrant Shares delivered on the exercise of this Warrant shall, at the time of such delivery, be validly issued and outstanding, fully paid and non-assessable. The Company further covenants and agrees that it will pay, when due and payable, any and all Federal and state stamp, original issue or similar taxes which may be payable in respect of the issue of any Warrant Share or certificate therefor. 3 12 5. Transferability. This Warrant and the Warrant Shares shall not be sold, transferred, assigned or hypothecated by the Holder except (i) pursuant to an effective registration statement under the Securities Act of 1933, as amended, and qualification for sale under all other applicable state and provincial securities rules and regulations [collectively the "Securities Acts"]; or (ii) in full compliance with all requirements necessary to establish an exemption from the registration requirements of the Securities Acts. In order to properly establish compliance with (ii), above, the Company shall be entitled to request and receive in advance of authorizing any sale, transfer, assignment or hypothecation of this Warrant or any of the Warrant Shares: (x) appropriate transferor and tranferee representation letters supporting a claimed exemption from registration requirements of the Securities Acts; (y) an opinion of counsel for the holder of the Warrant and/or Warrant Shares reasonably satisfactory to the Company that the proposed transfer from the holder of the Warrant and/or Warrant Shares to the transferee is exempt from the registration requirements of the Securities Act; and (z) such other documentation, representations and filings as may be reasonably required by counsel in order to issue the foregoing opinion. The Company may treat the registered holder of this Warrant as it appears on the Company's books at any time as the Holder for all purposes. 6. Loss, etc. of Warrant. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, and upon reimbursement of the Company's reasonable incidental expenses, the Company shall execute and deliver to the Holder a new Warrant of like date, tenor and denomination. 7. Warrant Holder Not Shareholder. Except as otherwise provided herein, this Warrant does not confer upon the Holder any right to vote or to consent or to receive notice as a shareholder of the Company, as such, in respect of any matters whatsoever, or any other rights or liabilities as a shareholder, prior to the exercise hereof. 8. Communication. No notice or other communication under this Warrant shall be effective unless, but any notice or other communication shall be effective and shall be deemed to have been given if, the same is in writing and is mailed by first-class mail, postage prepaid, addressed to: (a) the Company at North American Vaccine, Inc., 10150 Old Columbia Road, Columbia, MD 21046 Attention: Vice President-Finance, or such other address as the Company has designated in writing to the Holder, or (b) the Holder at BioChem Pharma Inc., 275 Armand Frappier Boulevard, Laval, H7V 4A7 Quebec, Canada Attention: Executive Vice President-Investments & Subsidiaries, or such other address as the Holder has designated in writing to the Company. 4 13 9. Headings. The headings of this Warrant have been inserted as a matter of convenience and shall not affect the construction hereof. 10. Applicable Law. This Warrant shall be governed by and construed in accordance with the laws of the State of New York. 5 14 IN WITNESS WHEREOF, NORTH AMERICAN VACCINE, INC. has caused this Warrant to be signed by its Chief Executive Officer and President and its corporate seal to be hereunto affixed and attested by its Secretary this ____ day of July 1999. ATTEST: NORTH AMERICAN VACCINE, INC. _____________________________ By: ____________________________________ [Corporate Seal] Randal Chase Chief Executive Officer & President 6 EX-99.2 3 GUARANTY 1 [RECYCLE LOGO] Form 813 (8-95) SURETYSHIP AND SUBORDINATION OF CLAIMS TO: ROYAL BANK OF CANADA SURETYSHIP (a) OBLIGATIONS GUARANTEED The undersigned and each of them (if more than one) (the "Guarantor", and collectively the "Guarantors"), guarantees payment on demand to Royal Bank of Canada (the "Bank") of all debts and obligations, present or future, direct or indirect, conditional or unconditional, matured or not, which VACCINS NORD--AMERICAINS INC. / NORTH AMERICAN VACCINE, INC. - ------------------------------------------------------------------------------ - ------------------------------------------------------------------------------ (the "Client") may owe to the Bank at any time whatsoever, whether such debts and obligations -- result from agreements or transactions -- between the Bank and the Client, or -- between the Client and a third party but through which the Bank may become the Client's creditor, -- or arise in any other manner, in the country in which this suretyship is given or elsewhere, whether the Client is bound alone or with others, as principal debtor or as guarantor. Such debts and obligations of the Client are hereinafter referred to as the "Obligations". (b) AMOUNT OF THE SURETYSHIP The Guarantor's liability, or if several Guarantors their total liability, under this suretyship shall be limited to an amount of SIX MILLION US DOLLARS ------------------------------- (US $6,000,000.00) dollars plus interest from the date the Bank makes a demand - ------------------ for payment from a Guarantor at the US Base Rate* plus 2.65% percent per annum ------------ both before and after judgment. "US Base Rate" means the annual rate of interest announced from time to time by the Bank as a reference rate in effect for determining the interest rates applicable to US dollar commercial loans made in Canada. *Insert the rate over Prime, or, in the case of a fixed rate, delete the words "the Bank's Prime Rate plus" and insert the applicable rate. SUBORDINATION OF CLAIMS Each Guarantor subordinates its claims, present and future, against the Client to the Obligations, so as to enable the Bank in all circumstances to be fully paid the Obligations in priority over such claims. Any payment received by a Guarantor with respect to such claims shall be received on behalf of the Bank and shall be remitted to the Bank immediately. Such remittance shall not constitute a full or partial discharge of the liability of any Guarantor hereunder. This subordination is independent of the suretyship hereunder and shall remain in effect notwithstanding the termination of the suretyship with respect to one or more Guarantors. -1- 2 GENERAL PROVISIONS 1. SOLIDARY LIABILITY 1.1 BETWEEN THE CLIENT AND THE GUARANTORS The Obligations of the Client and the undertakings of each Guarantor hereunder toward the Bank shall be solidary. 1.2 BETWEEN THE GUARANTORS If there is more than one Guarantor, their undertaking hereunder shall be solidary. 2. RIGHTS OF THE BANK 2.1 TRANSACTIONS WITH THE CLIENT AND WITH THIRD PARTIES The Bank may grant to the Client or to third parties, including to another Guarantor who is a signatory to this or another suretyship, delays for performance, renewals, prorogations, extensions of time, releases and discharges; the Bank may accept from them security, including other suretyships; it may surrender to them all or part of such security, including that currently existing; it may abstain from taking security or from realizing thereon; it may cease or abstain from granting them credit, loans or advances; it may make compromises and deal with them and surrender any security; the whole as the Bank may deem appropriate, without having to obtain consent from any Guarantor and without diminishing or modifying its liability under this agreement. Loss of any security held by the Bank from the Client or from third parties, whether it results from an act or an omission by the Bank or otherwise, shall not diminish nor modify the liability of any Guarantor under this agreement. 2.2 IMPUTATION OF MONIES RECEIVED The Bank may apply any payment it receives and any product of realization on security it holds to the portion of the Obligations it deems appropriate, including the portion which is not guaranteed by this suretyship; it may also, at its discretion, change such application; the whole without diminishing the liability of any Guarantor under this agreement. 3. CONTINUOUS SURETYSHIP This suretyship is continuous. It shall subsist notwithstanding the total or partial discharge of the Obligations from time to time. It secures the ultimate balance owing to the Bank by the Client. 4. RENUNCIATION TO BENEFIT OF DISCUSSION Each Guarantor renounces to the benefit of discussion; thus, the Bank shall not be obliged to exercise its remedies against the Client or against the Client's property before seeking performance of the Obligations of a Guarantor hereunder. 5. RENUNCIATION TO BENEFIT OF DIVISION Each Guarantor renounces to the benefit of division; thus, the Bank will not be obliged to divide its action nor to reduce it to the amount of the share of each Guarantor when exercising its rights pursuant to this suretyship. 6. TERMINATION OF THE SURETYSHIP 6.1 REVOCATION Each Guarantor may, by written notice to the manager of the branch or agency of the Bank which has received this suretyship agreement, terminate its liability under this suretyship with respect to future Obligations, but not with respect to the Obligations existing on the date of receipt of such notice, even if such Obligations are not exigible at such time; furthermore, notwithstanding the receipt of such notice, the Bank has the right to comply with the demands of the Client based on express or tacit agreements entered into prior to the receipt of such notice and any Obligation resulting therefrom shall be covered by this suretyship. 6.2 DEATH The death of a Guarantor shall terminate this suretyship and the liability of the Guarantor's succession for future Obligations, but shall not terminate it with respect to the Obligations existing on the date on which the death occurred, even if such Obligations are not exigible at such time; furthermore, notwithstanding the death, the Bank has the right to comply with the demands of the Client based on express or tacit agreements entered into prior to the occurrence of the death, and any Obligation resulting therefrom shall be covered by this suretyship. 6.3 EFFECT ON OTHER GUARANTORS In the event this suretyship is terminated with respect to one or several Guarantors, for a reason stated hereinabove or otherwise, it shall remain in effect for the remaining Guarantors. 7. NON-DISCHARGING EVENTS 7.1 GENERAL This suretyship and this subordination agreement shall remain in effect notwithstanding: - the change of name of the Client, - the merger of the Client with another legal person, - if the Client is a partnership, a change in its composition, business or purpose, - if the Client is a legal person, a change in its purpose, capital structure, charter or business The term "Client" shall then be deemed to include, for the purposes of this agreement, such new name, the legal person resulting from such merger, or such partnership or legal person so modified. 7.2 SURETYSHIP ATTACHED TO THE PERFORMANCE OF DUTIES If this suretyship is attached to the performance of special duties of any Guarantor, termination of such duties shall not have the effect of terminating this suretyship. 7.3 INCAPACITY OF THE CLIENT The Obligations are guaranteed by this suretyship notwithstanding any incapacity or inability of the Client or of its directors, partners or agents, or the absence of juridical personality of the Client, or the fact that legal action cannot be brought against the Client, or any irregularity or defect in the formation of the Obligations, whether or not the Bank is aware of it. 8. POSTPONEMENT OF SUBROGATION Each Guarantor agrees to refrain from exercising its right of subrogation until the Bank receives full payment of the Obligations. 9. INDEPENDENCE OF THE SURETYSHIP This suretyship is in addition to all other suretyships and undertakings given or made by whomsoever to the Bank with regard to the Client. However, it is in substitution for any suretyship surrendered by the Bank in consideration of establishing this suretyship. 10. STATEMENTS OF ACCOUNT Any statement prepared by the Bank shall be accepted by the Guarantors as conclusive evidence of the amount owing by the Client to the Bank on the date of such statement. 11. EFFECTIVE DATE This agreement is binding upon all its signatories, even if one or more intended signatories did not execute it. The possession by the Bank of this agreement constitutes conclusive evidence that the latter was not delivered on the understanding that it would only come into effect after certain prior or subsequent conditions were met unless, at the time the Bank takes delivery of it, each of the signatories obtains from the manager of the branch or agency of the Bank taking delivery of this agreement a letter establishing the conditions pursuant to which it was delivered and, if applicable, those which must be complied with prior to the agreement taking effect. 12. DEMAND FOR PAYMENT A demand for payment shall be deemed to have been made to any Guarantor when a stamped envelope containing such demand and addressed to such Guarantor is mailed to the latter's last address known to the Bank. In the event that a Guarantor dies, a demand for payment mailed as aforesaid and addressed to any one of the heirs, executors, liquidators, administrators or legal representatives of such Guarantor at the last address of the deceased Guarantor known to the Bank, shall be deemed to have been made to all of them. When it deems it necessary for the protection of its interests, the Bank may avail itself of its rights resulting from this suretyship without being required to make a prior demand for payment. 13. PLACE OF PAYMENT All payments hereunder shall be made to the Bank, at one of its branches or agencies. -3- 3 14. ENTIRE AGREEMENT 7. NON-DISCHARGING EVENTS 7.1 GENERAL This suretyship and this subordination agreement shall remain in effect notwithstanding: - the change of name of the Client, - the merger of the Client with another legal person, - if the Client is a partnership, a change in its composition, business or purpose, - if the Client is a legal person, a change in its purpose, capital structure, charter or business. The term "Client" shall then be deemed to include, for the purposes of this agreement, such new name, the legal person resulting from such merger, or such partnership or legal person so modified. 7.2 SURETYSHIP ATTACHED TO THE PERFORMANCE OF DUTIES If this suretyship is attached to the performance of special duties of any Guarantor, termination of such duties shall not have the effect of terminating this suretyship. 7.3 INCAPACITY OF THE CLIENT The Obligations are guaranteed by this suretyship notwithstanding any incapacity or inability of the Client or of its directors, partners or agents, or the absence of juridical personality of the Client, or the fact that legal action cannot be brought against the Client, or any irregularity or defect in the formation of the Obligations, whether or not the Bank is aware of it. 8. POSTPONEMENT OF SUBROGATION Each Guarantor agrees to refrain from exercising its right of subrogation until the Bank receives full payment of the Obligations. 9. INDEPENDENCE OF THE SURETYSHIP This suretyship is in addition to all other suretyships and undertakings given or made by whomsoever to the Bank with regard to the Client. However, it is in substitution for any suretyship surrendered by the Bank in consideration of establishing this suretyship. 10. STATEMENTS OF ACCOUNT Any statement prepared by the Bank shall be accepted by the Guarantors as conclusive evidence of the amount owing by the Client to the Bank on the date of such statement. 11. EFFECTIVE DATE This agreement is binding upon all its signatories, even if one or more intended signatories did not execute it. The possession by the Bank of this agreement constitutes conclusive evidence that the latter was not delivered on the understanding that it would only come into effect after certain prior or subsequent conditions were met unless, at the time the Bank takes delivery of it, each of the signatories obtains from the manager of the branch or agency of the Bank taking delivery of this agreement a letter establishing the conditions pursuant to which it was delivered and, if applicable, those which must be complied with prior to the agreement taking effect. 12. DEMAND FOR PAYMENT A demand for payment shall be deemed to have been made to any Guarantor when a stamped envelope containing such demand and addressed to such Guarantor is mailed to the latter's last address known to the Bank. In the event that a Guarantor dies, a demand for payment mailed as aforesaid and addressed to any one of the heirs, executors, liquidators, administrators or local representatives of such Guarantor at the last address of the deceased Guarantor known to the Bank, shall be deemed to have been made to all of them. When it deems it necessary for the protection of its interests, the Bank may avail itself of its rights resulting from this suretyship without being required to make a prior demand for payment. 13. PLACE OF PAYMENT All payments hereunder shall be made to the Bank, at one of its branches or agencies. -3- EX-99.4.A 4 SHARE PURCHASE AGREEMENT 1 Exhibit 4.A SHARE PURCHASE AGREEMENT entered into in the Province of Quebec this 17th day of January, 1990. BY AND BETWEEN: NORTH AMERICAN VACCINE, INC., a corporation duly existing under the Canada Business Corporations Act, having its head office in the Montreal Urban Community, Quebec (hereinafter referred to as "NAVA") PARTY OF THE FIRST PART AND: IAF BIOCHEM INTERNATIONAL INC., a corporation duly existing under Part 1A of the Quebec Companies Act, having its head office in the City of Laval, Quebec (hereinafter referred to as "BioChem") PARTY OF THE SECOND PART
WHEREAS NAVA has been duly constituted and has a valid existence under the provisions of the Canada Business Corporations Act and will directly or through its subsidiaries, engage in the research, development, manufacturing and marketing of human immuno-biological products; WHEREAS the offering of approximately 9,034,412 common shares of NAVA will be registered under the provisions of the United States Securities Act of 1933; WHEREAS approximately 13,735,399 common shares of NAVA will be approved for listing on the American Stock Exchange ("AMEX"); 2 -2- WHEREAS BioChem is desirous of subscribing for approximately four million five hundred and seventeen thousand two hundred and six (4,517,206) common shares (the "Common Shares") and one million (1,000,000) Series A preferred shares (the "Preferred Shares") in the share capital of NAVA, issuable from the treasury of NAVA, (hereinafter collectively referred to as the "Shares"), and certain options, warrants or other rights to acquire additional shares of NAVA (the "Options"), the whole on the terms and conditions hereinafter set out; WHEREAS the consideration for the issuance of the Shares and the Options is i) the sum of five million dollars in lawful currency of the United States (U.S. $5,000,000) payable by wire transfer of immediately available U.S. funds by BioChem to NAVA on the Closing Date, ii) the issuance by BioChem on the Closing Date of four hundred ninety eight thousand nine hundred eighty four (498,984) common shares of Biochem and iii) the transfer by BioChem to NAVA of certain technology and other interests, pursuant to the Technology Transfer Agreement, (i), ii) and iii) are hereinafter referred to as the "Purchase Price"), the whole on the terms and conditions hereinafter set out; WHEREAS NAVA is desirous of issuing the Shares and Options to BioChem in the numbers and for the Purchase Price as aforesaid, the whole subject to the terms and conditions hereinafter set forth: NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: SECTION ONE INTERPRETATION 1.1 Definitions: - Unless the subject matter or context otherwise requires: (a) "American Vaccine" means American Vaccine Corporation, a corporation incorporated under the laws of Delaware. (b) "AMVAX" means Amvax, Inc., a wholly-owned subsidiary of American Vaccine incorporated under the laws of Delaware. (c) "Agreement" means this Agreement and any instrument supplemental or ancillary hereto; 3 -3- and the expressions "recital", "Article", "section", "subsection", "paragraph" and "subparagraph" followed by a number or letter or combination thereof mean and refer to the specified recital, Article, section, subsection, paragraph or subparagraph of this Agreement. (d) "American Vaccine Financial Statements" means the audited financial statements of American Vaccine on a consolidated basis as of and for the period ended December 31, 1988. (e) "American Vaccine Unaudited Financial Statements" means the unaudited financial statements of American Vaccine on a consolidated basis as of and for the period ended June 30, 1989. (f) "Assignment and Amendment Agreement" means the agreement made as of January 9, 1990 among CPDL, BioChem and NAVA pursuant to which the CPDL Agreements are assigned to NAVA. (g) "BioChem Common Shares" means the four hundred and ninety eight thousand nine hundred eighty four (498,984) common shares of BioChem to be issued to NAVA as part of the Purchase Price. (h) "BioChem Financial Statements" means the audited financial statements of BioChem as of and for the period ended January 31, 1989. (i) "BioChem Unaudited Financial Statements" means the unaudited financial statements of BioChem as of and for the period ended July 31, 1989. (j) "Closing" means the completion of all procedures and the delivery of all documents and opinions required to consummate the transactions contemplated herein and the payment of the Purchase Price; and "Closing Date" means the date specified in section 3.1 on which the Closing shall occur. (k) "Common Shares" means the approximately 4,517,206 common shares, no par value, of the share capital of NAVA to be issued to BioChem. 4 -4- (l) "CPDL" means Canadian Patents and Development Limited. (m) "CPDL Agreements" means the agreements entered into between BioChem and the Canadian Patents Development Limited dated July 27, 1987 and June 27, 1988 respectively. (n) "The Frost Group" means Frost-Nevada Limited Partnership, IVAX Corporation and Dr. Phillip Frost. (o) "IAF Vaccines" means the corporation to be formed in the event that the IAF Vaccines Transaction is completed and of which BioChem will hold all of the voting equity. (p) "IAF Vaccines Transaction" means the proposed acquisition of the vaccine division of Institut Armand-Frappier by IAF Vaccines pursuant to the terms of the memorandum of agreement entered into between Institut Armand-Frappier and BioChem dated December 21, 1989. (q) "NAVA Merger Sub" means NAVA Acquiring Corp., a wholly-owned subsidiary of NAVA incorporated under the laws of Delaware. (r) "NTIS" means the National Technical Information Service, a primary operating unit of the United States Department of Commerce. (s) "NTIS Agreement" means the License Agreement entered into between Selcore Laboratories, Inc. (the predecessor of American Vaccine) and NTIS on March 25, 1988. (t) "Options" means such options and warrants of NAVA as will permit BioChem to maintain its 50% fully diluted ownership as of the Closing Date of the issued and outstanding Common Shares of NAVA after giving effect to the transactions contemplated by this Agreement, the terms of which are described in Schedule 1 hereto. (u) "Preferred Shares" means the one million (1,000,000) Series A Preferred Shares, no par value, of the share capital of NAVA to be issued to BioChem on the Closing Date. 5 -5- (v) "Pertussis Technology" means the inventions commonly known as methods of preparing toxoid and fermentation level cultivation of Bordetella pertussis and all technical knowledge and techniques relating generally to the inventions and which inventions, technical knowledge and techniques are the subject of the NTIS Agreement and the Sekura Agreement. (w) "Purchase Price" means i) the sum of five million dollars in lawful currency of the United States (US $5,000,000) payable by wire transfer of immediately available U.S. funds by BioChem to NAVA on the Closing Date, ii) the BioChem Common Shares and iii) certain technology and other interests to be transferred on the Closing Date by BioChem to NAVA pursuant to the Technology Transfer Agreement. (x) "Registration Statement" means the preliminary registration statement on Form S-4 as filed with the Securities and Exchange Commission by NAVA on October 17, 1989 and all exhibits and amendments thereto, including without limitation, the Annual Report of American Vaccine on Form 10-K for the year ended December 31, 1988 and the Quarterly Reports on Form 10-Q of American Vaccine for the quarters ended March 31, 1989 and June 30, 1989. (y) "Reorganization" means the merger of NAVA Merger Sub with and into American Vaccine as described in the Registration Statement. (z) "Sekura Agreement" means the Amended and Restated Pertussis Vaccine Patent License Agreement entered into between Selcore Laboratories, Inc. (the predecessor of American Vaccine) and Ronald D. Sekura on October 13, 1987. (aa) "Shareholders' Agreement" means the agreement dated January 17, 1990 among BioChem and The Frost Group in substantially the form of Schedule 2 hereto. (ab) "Shares" means the Common Shares and Preferred Shares. (ac) "Technology Transfer Agreement" means the agreement dated January 17, 1990 between BioChem and NAVA and substantially in the form of Schedule 3 hereto. 6 -6- 1.2 Schedules: The following Schedules attached or referred to in this Agreement are an integral part of this Agreement: Schedule 1 - Terms of the Options Schedule 2 - Form of Shareholders' Agreement Schedule 3 - Form of Technology Transfer Agreement Schedule 4 - Registration Rights 1.3 Extended Meanings: - Words importing the singular number include the plural and vice versa and words importing the masculine gender include the feminine and neuter genders. 1.4 Interpretation Not Affected by Headings: - The division of this Agreement into sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. 1.5 Applicable Law: - This Agreement shall be deemed to have been made in the Province of Quebec and shall be interpreted in accordance with and be governed by the laws of Quebec and the laws of Canada applicable therein. 1.6 Funds: - All dollar amounts referred to in this Agreement are in lawful money of the United States, unless otherwise stated. 1.7 Paramountcy: - If any provision of this Agreement conflicts with the incorporating documents or any by-law of NAVA, American Vaccine or AMVAX, the provisions of this Agreement shall prevail to the extent permitted by law. 1.8 Severability: - In the event that any provision or provisions of this Agreement is or are illegal under the laws of the Province of Quebec, then such provision or provisions shall be deemed not to have been written into this Agreement and the remaining terms and provisions thereof shall subsist and remain enforceable. Upon the determination that any such provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby are fulfilled to the extent possible. 7 -7- 1.9 Business Day: - In the event that any action to be taken hereunder falls on a Saturday, Sunday or any legal holiday ("non-business day") either in Canada or the United States, then such action shall be taken on the next succeeding day other than a non-business day. SECTION TWO SUBSCRIPTION 2.1 Subscription for Shares: Subject to the terms and conditions hereof, BioChem agrees to purchase, on the Closing Date, approximately four million five hundred seventeen thousand two hundred six (4,517,206) Common Shares of NAVA, one million (1,000,000) Series A Preferred Shares of NAVA and Options to acquire approximately one million one hundred ninety two thousand seven hundred ninety nine (1,192,799) Common Shares of NAVA for an aggregate consideration equal to the Purchase Price. 2.2 Exercise of Options: (a) Schedule 1 hereto sets forth certain information concerning the options and warrants of NAVA (the "NAVA Options") granted to the holders specified in Schedule 1. NAVA shall have the right, by action of the Board of Directors, at any time and from time to time, to change any of the terms of the NAVA Options set forth in Schedule 1. Any reference in this Agreement to "the terms set forth in Schedule 1" shall refer to the terms of the NAVA Options as they may be changed from time to time by action of the NAVA Board of Directors. (b) BioChem may exercise its Options in accordance with the terms set forth in Schedule 1 with respect to the corresponding NAVA Options only if and to the extent that any holder thereof exercises its NAVA Options and for the same number of NAVA common shares for which such Options are exercised. The Options shall lapse and be of no further legal effect as, when and to the extent that the corresponding NAVA Options lapse and become without legal effect. (c) Within five (5) business days following the exercise of any NAVA Options, NAVA shall furnish BioChem with a written notice of such exercise specifying (i) the number of common shares of NAVA 8 -8- issued upon the exercise of such NAVA Options, (ii) the purchase price paid to NAVA for such common shares, (iii) the expiry date of such NAVA Options and (iv) such other information concerning such exercise of NAVA Options as NAVA shall deem appropriate. BioChem shall have the right to exercise such number of Options as shall result in the issuance to BioChem of the same number of common shares as were issued to the holder or holders of the NAVA Options exercised as described above by paying in cash the purchase price of the common shares by the later of 90 days from receipt of such notice or the expiry date of such NAVA Options. 2.3 Allocation: The parties agree to allocate the amount of the Purchase Price as follows: (i) as to the Options the sum of U.S. $3,382,062; (ii) as to the Preferred Shares: (a) the sum of U.S. $1,617,938, and (b) 463,206.2 of the BioChem Common Shares; (iii) as to the Common Shares: (a) 35,777.8 of the BioChem Common Shares, and (b) the interests to be transferred by BioChem to NAVA pursuant to Section 2 of the Technology Transfer Agreement. The parties shall jointly elect under the provisions of the Income Tax Act (Canada) and the Quebec Taxation Act that BioChem's proceeds of disposition of the intangible consideration and NAVA's cost of the intangible consideration shall be an amount equal to the adjusted cost base of the intangible consideration to BioChem. The parties further agree to jointly make the necessary elections and to execute and file the prescribed election forms and any other documents required pursuant to section 85 of the Income Tax Act (Canada) and the corresponding sections of the Taxation Act (Quebec) and any regulations under such Acts. SECTION THREE CLOSING 3.1 Closing Date: The Closing of the purchase by BioChem of the Shares and Options shall take place at the offices of Stikeman, Elliott at 1155 Rene-Levesque Blvd., West, Suite 3900, Montreal, Quebec on February 27, 1990 at 10:00 a.m. or such other date, time or place as the parties hereto may mutually agree but in no event 9 -9- prior to the filing of a Certificate of Merger with the Office of the Secretary of State of the State of Delaware with respect to the consummation of the Reorganization. 3.2 Conditions of Closing in favour of BioChem: The obligation of BioChem to purchase the Shares and the Options as contemplated under Section 2 hereof and to perform its other obligations hereunder is subject to (i) the simultaneous completion of the Reorganization, and (ii) the fulfillment of the following conditions precedent being satisfied on or prior to the Closing Date, it being understood that the said conditions are for the exclusive benefit of BioChem and may be waived in writing, in whole or in part, by BioChem at any time prior to the Closing Date: (a) the common shares of NAVA shall be listed or approved for listing on AMEX; (b) the representations and warranties contained in Section 4.1 hereof shall be true, correct and complete in all material respects on and as of the date made and on the Closing Date and on the Closing Date NAVA shall deliver a certificate confirming the foregoing in form and substance satisfactory to BioChem; (c) the Shareholders' Agreement shall have been executed and delivered by all parties thereto; (d) except as disclosed in the Registration Statement i) no action, suit or proceeding against NAVA, American Vaccine or AMVAX shall have been instituted or threatened before or by any U.S., Canadian or other court or tribunal or governmental agency or other regulatory or administrative agency or commission or other third party, and no legislation, rule or regulation shall have been proposed, implemented or enacted which action, suit, proceeding or legislation, rule or regulation seeks to restrain or prohibit or otherwise challenge the legality or validity of the transactions contemplated hereby or of the Reorganization and ii) no material adverse change in (or any condition or event which would have a material adverse effect on) the business, assets, capitalization or financial condition of American Vaccine on a consolidated basis since June 30, 1989 shall have occurred; 10 -10- (e) all orders, exemptions and rulings from applicable regulatory authorities where such are required to be obtained shall have been received; (f) counsel to BioChem shall have delivered to BioChem an opinion confirming that the transactions contemplated hereby do not result in any material adverse Canadian income tax consequences for BioChem; (g) all proceedings shall have been taken by NAVA and American Vaccine in accordance with applicable law as are required to complete the transactions contemplated hereby including completion of the Reorganization; (h) the Board of Directors of American Vaccine and NAVA, as the case may be, shall have approved the purchase by BioChem of the Shares and the options and the shareholders of American Vaccine shall have approved the Reorganization and American Vaccine and NAVA, as the case may be, shall have provided BioChem with certified copies of resolutions duly adopted by its Board of Directors in connection with the foregoing; (i) BioChem shall have received legal opinions in form and substance satisfactory to it from Stikeman, Elliott and from Shaw, Pittman, Potts & Trowbridge; (j) NAVA shall have delivered to BioChem one or more certificates, duly registered in the name of BioChem, representing the Common Shares and Preferred Shares purchased by it, and such agreements and instruments as shall be necessary to issue or vest title to the Options in BioChem; (k) all documents shall have been executed in a manner that is satisfactory in form and substance to BioChem; (l) BioChem shall have obtained all consents, amendments and modifications to any agreements or other documents which are required in order to consummate, validly and enforceably, the transactions contemplated herein. 11 -11- 3.3 Conditions of Closing in favour of NAVA: The obligation of NAVA to sell the Shares and the Options as contemplated under Section 2 hereof and to perform its other obligations hereunder is subject to the following conditions precedent being satisfied on or prior to the Closing Date, it being understood that the said conditions are for the exclusive benefit of NAVA and may be waived in whole or in part by NAVA at any time prior to the Closing Date: (a) the representations and warranties contained in Section 4.2 hereof shall be true, correct and complete in all material respects on and as of the date made and on the Closing Date and on the Closing Date BioChem shall deliver a certificate confirming the foregoing in form and substance satisfactory to NAVA and counsel to NAVA; (b) (i) no action, suit or proceeding against NAVA, BioChem, American Vaccine or AMVAX shall have been instituted or threatened before or by any U.S., Canadian or other court or tribunal or governmental agency or other regulatory or administrative agency or commission or other third party, and no legislation, rule or regulation shall have been proposed, implemented or enacted which action, suit, proceeding or legislation, rule or regulation seeks to restrain or prohibit or otherwise challenge the legality or validity of the transactions contemplated hereby and (ii) no material adverse change in (or any condition or event which would have a material adverse effect on) the business, assets, capitalization or financial condition of BioChem since July 31, 1989 shall have occurred (except any change resulting from the IAF Vaccines Transaction or the financing thereof or the acquisition of voting rights by the holders of the BioChem Preferred Shares in accordance with the terms currently attached to such shares, it being understood, in this latter case, that the occurrence of any change that gives rise to the acquisition of such voting rights is not an excepted material adverse change for the purposes hereof); (c) all orders, exemptions and rulings from applicable regulatory authorities where such are required to be obtained shall have been received; 12 -12- (d) Shaw, Pittman, Potts & Trowbridge shall have delivered to American Vaccine an opinion confirming that the transactions contemplated hereby (including the Reorganization) will not result in any material adverse income tax consequences for American Vaccine; (e) all proceedings shall have been taken by BioChem in accordance with applicable law as are required to complete the transactions contemplated hereby; (f) the Board of Directors of BioChem shall have approved the transactions contemplated hereby and BioChem shall have furnished NAVA with certified copies of resolutions duly adopted by its Board of Directors in connection with the foregoing; (g) NAVA shall have received a legal opinion in form and substance satisfactory to it from Stikeman, Elliott; (h) Bear, Stearns & Co., Inc. ("Bear Stearns") shall have delivered to the Board of Directors of American Vaccine an opinion as to the fairness of the purchase by BioChem of the Shares and the Options and of the Reorganization to the American Vaccine Stockholders from a financial point of view; (i) BioChem shall have executed and delivered the Technology Transfer Agreement and the Assignment and Amendment Agreement; (j) BioChem shall have paid the cash portion of the Purchase Price, shall have delivered to NAVA one or more share certificates duly registered in the name of NAVA representing the Biochem Common Shares and shall have transferred certain technology and other interests to NAVA pursuant to the Technology Transfer Agreement; (k) the Shareholders' Agreement shall have been executed and delivered by all parties thereto; (l) all documents shall have been executed in a manner that is satisfactory in form and substance to NAVA; (m) American Vaccine and AMVAX shall have obtained all consents, amendments and modifications to any 13 -13- agreements or other documents which are required in order to consummate, validly and enforceably, the transactions contemplated herein; SECTION FOUR REPRESENTATIONS AND WARRANTIES 4.1 Representations and Warranties of NAVA: NAVA represents and warrants, for itself and American Vaccine and AMVAX, to BioChem as follows: (a) that NAVA, American Vaccine and AMVAX are validly existing corporations in good standing under the laws of their jurisdictions of incorporation and that each has all necessary corporate power to execute and deliver the Agreement and all related agreements contemplated hereby and to complete the transactions contemplated hereby; (b) that the authorization, execution, delivery or performance by NAVA of the Agreement is not in conflict with and does not or will not result in a breach or after notice or lapse of time or both will not result in a breach of any of the terms or provisions of NAVA's articles or by-laws or of the material contracts, agreements or undertakings to which it is a party or to which it may be subject, as the case may be; (c) the authorized share capital of NAVA consists of an unlimited number of common shares and an unlimited number of preferred shares issuable in series of which approximately 9,034,412 common shares and 2,000,000 Series A preferred shares will, on the Closing Date, have been duly authorized for issuance and sale and when issued and delivered by NAVA pursuant to this Agreement and the Agreement and Plan of Merger among NAVA, NAVA Merger Sub and American Vaccine dated as of October 25, 1989 (the "Merger Agreement") against payment of the consideration set out in the Agreement and the Merger Agreement, will be validly issued and fully paid and non-assessable; (d) the authorized share capital of American Vaccine consists of ten million (10,000,000) shares of common stock, $.01 par value per share, and two million (2,000,000) shares of preferred stock 14 -14- $.01 par value per share, issuable in series, and all of the issued and outstanding capital stock of American Vaccine is legally issued and outstanding as fully paid and non-assessable; (e) the authorized share capital of AMVAX consists of 1,000,000 shares of common stock s.01 par value per share and 250,000 shares of preferred stock $30.00 par value per share, and all of the issued and outstanding capital stock of AMVAX is legally issued and outstanding as fully paid and nonassessable; (f) that as of the Closing Date, NAVA will own beneficially all of the issued and outstanding shares of American Vaccine which in turn as of the Closing Date will own all of the issued and outstanding shares of AMVAX, and that each of NAVA, American Vaccine and AMVAX is duly licensed, qualified to do business and in good standing in all jurisdictions in which they carry on their business except where failure to do so does not have a material adverse effect on each such corporation respectively; (g) that American Vaccine has no subsidiary, affiliated corporation or controlling interest in any partnership, joint venture or similar entity except for AMVAX; (h) that AMVAX has no subsidiary, affiliate corporation or controlling interest in any partnership, joint venture or similar entity; (i) the American Vaccine Financial Statements present fairly in all material respects the financial position of American Vaccine on a consolidated basis as of December 31, 1988 and the results of operations and cash flow for the nine months then ended, in conformity with U.S. generally accepted accounting principles; (j) the American Vaccine Unaudited Financial Statements present fairly in all material respects the financial position of American Vaccine on a consolidated basis as of June 30, 1989 and the results of operations and cash flow for the six months then ended, in conformity with U.S. generally accepted accounting principles; 15 -15- (k) except as disclosed in the Registration Statement, since June 30, 1989, there has been no material adverse change to the assets, liabilities, or financial position of American Vaccine on a consolidated basis other than changes arising in the ordinary course of business; (l) that there are no outstanding agreements, options, commitments, rights or privileges, preemptive or contractual, giving any person the right to purchase or otherwise acquire any securities of NAVA, American Vaccine and AMVAX, except for the outstanding Series A Preferred Stock of American Vaccine and stock options and warrants of American Vaccine as set forth in Schedule 1 hereto and except as otherwise disclosed in the Agreement; (m) that as of the Closing Date, (i) NAVA and American Vaccine will have made all necessary filings with all governmental and regulatory authorities, securities commissions and exchanges required to effect the transactions contemplated hereby, (ii) NAVA, American Vaccine and AMVAX will have duly filed all tax returns that are required to have been filed in applicable jurisdictions, (iii) each such return is complete, accurate and in compliance with applicable law and regulations in all material respects, and (iv) each of NAVA, American Vaccine and AMVAX will have paid or provided for all such taxes of any nature whatsoever, with any related penalties, interest and liabilities, that are or would be shown on such tax returns as due and payable on or before the Closing Date, other than such taxes as are being contested in good faith; (n) that no order suspending or prohibiting the sale or the trading of shares or of any securities of NAVA, American Vaccine and AMVAX has been issued by any court, securities commission or regulatory authority and no proceedings for such purpose are pending or, to NAVA's knowledge, threatened; (o) except as disclosed in the Registration Statement and except for claims which have been provided for or reserved against in the most recent balance sheet of the applicable corporation furnished to BioChem, or except as disclosed and 16 -16- accepted by the other party in the Agreement, there are no asserted claims or unasserted claims of which NAVA, American Vaccine or AMVAX is aware, as it pertains to each corporation, against such corporation or any litigation, action, suit or other claim by or before any court, tribunal, governmental agency or authority, securities commission or regulatory body that is material to the business, affairs, property or assets of NAVA or American Vaccine on a consolidated basis, as the case may be including, without limitation, claims for breach of warranty or product liability, claims challenging the ownership or use by any such corporation of any material asset and claims asserting the invalidity of this Agreement or seeking to prevent any of the transactions contemplated hereby; (p) except as disclosed in the Registration Statement, to the best of NAVA's knowledge after reasonable investigation, i) the Pertussis Technology, including all intellectual property rights therein, the use thereof, and the marketing and distribution of products produced through such use, do not infringe upon any patent, copyright, trade secret or other proprietary right held by any third party; (ii) no proceedings have been instituted, are pending or threatened which challenge the rights granted to American Vaccine under the NTIS Agreement and the Sekura Agreement or the validity of NTIS's and/or Ronald D. Sekura's intellectual property rights in the Pertussis Technology and (iii) none of the patents, copyrights, or other proprietary rights of NTIS and Ronald D. Sekura in the Pertussis Technology are being infringed upon by others, and none of such rights are subject to any outstanding order or judgment; (q) the NTIS Agreement and the Sekura Agreement constitute valid and binding contracts enforceable according to their terms; (r) except as disclosed in the Registration Statement, there are no pending, or to the best of NAVA's knowledge, after reasonable investigation, threatened disputes or controversies with the manufacturers, suppliers, customers, consultants and others having business 17 -17- relations with NAVA, American Vaccine or AMVAX and each such corporation has taken all reasonable security measures to protect the secrecy, confidentiality and value of its respective proprietary and confidential technology and know-how and, to the best of NAVA's knowledge after reasonable investigation, such technology and know-how is not in the public domain, nor has it been used, divulged, or appropriated for the benefit of any person other than such corporations; (s) AMVAX has entered into a valid and enforceable agreement with the National Institute of Child Health and Human Development ("NICHD") which provides for payments of up to U.S. $3,500,000 payable for work performed during the period from March 6, 1989 to March 5, 1990 of which AMVAX has, as of June 30, 1989 received U.S. $362,704; (t) the Registration Statement does not contain any untrue statement of a material fact or omit any material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of the circumstances under which they were made; provided however, that NAVA makes no representation or warranty with respect to the information contained in or omitted from the Registration Statement regarding BioChem or the Institut Armand-Frappier; (u) the representations and warranties contained in this Section 4.1 shall be true in all material respects on and as of the Closing Date with the same force and effect as though such representations and warranties had been made on and as of the Closing Date and shall survive any investigations by or on behalf of BioChem and shall survive the Closing. 4.2 Representations and Warranties of BioChem: BioChem represents and warrants to NAVA as follows: (a) that it is a corporation validly incorporated and organized and is validly subsisting and in good standing under the laws of its jurisdiction of incorporation and that it has all necessary corporate power to execute and deliver the Agreement and all related agreements contemplated hereby and to complete the transactions contemplated hereby; 18 -18- (b) that none of the authorization, execution, delivery or performance by BioChem of the Agreement is in conflict with and none of them does or will result in a breach of or does or will create a state of facts which after notice or lapse of time or both will result in a breach of any of the terms or provisions of its articles or by-laws or of the material contracts, agreements or undertakings to which BioChem may be a party or may be subject, as the case may be; (c) the authorized capital of BioChem consists of an unlimited number of common shares and ten million (10,000,000) preferred shares having a paid up capital of one hundred thousand dollars ($100,000) of which seven million three hundred two thousand one hundred sixty five (7,302,165) common shares and ten million (10,000,000) preferred shares are legally issued and outstanding as fully paid and non-assessable and that on the Closing Date the BioChem Common Shares will have been duly authorized for issuance and sale to NAVA and will be legally issued and outstanding as fully paid and nonassessable; (d) that there are no outstanding agreements, options, commitments, rights or privileges, preemptive or contractual, giving any person the right to purchase or otherwise acquire any securities of BioChem except for stock options and warrants of BioChem for an aggregate number of 1,646,451 common shares of BioChem and except as otherwise disclosed in the Agreement; (e) the BioChem Financial Statements have been prepared in accordance with Canadian generally accepted accounting principles applied on a consistent basis and fairly present the assets, liabilities and shareholders' equity of BioChem as well as its financial position for the period ended on such a day; (f) the BioChem Unaudited Financial Statements have been prepared in accordance with Canadian generally accepted accounting principles applied on a consistent basis and fairly present the assets, liabilities and shareholders' equity of BioChem as well as its financial position for the period ended on such a day; 19 -19- (g) since July 31, 1989, there has been no material adverse change to the assets, liabilities, or financial position of BioChem other than changes arising in the ordinary course of business; (h) that as of the Closing Date, (i) BioChem will have made all necessary filings with all governmental and regulatory authorities, securities commissions and exchanges required to effect the transactions contemplated hereby, (ii) BioChem will have duly filed all tax returns that are required to have been filed in applicable jurisdictions, (iii) each such return is complete, accurate and in compliance with applicable law and regulations in all material respects, and (iv) BioChem will have paid or provided for all such taxes of any nature whatsoever, with any related penalties, interest and liabilities, that are or would be shown on such tax returns as due and payable on or before the Closing Date, other than such taxes as are being contested in good faith; (i) that no order suspending the sale or the trading of shares or of any securities of BioChem has been issued by any court, securities commission or regulatory authority and no proceedings for such purpose are pending or, to BioChem's knowledge, threatened; (j) except as disclosed in the Registration Statement, or except for claims which have been provided for or reserved against in the most recent balance sheet of BioChem furnished to NAVA, or except as disclosed and accepted by the other party in the Agreement, there are no asserted claims or unasserted claims of which BioChem is aware or any litigation, action, suit or other claim by or before any court, tribunal, governmental agency or authority, securities commission or regulatory body that is material to the business, affairs, property or assets of BioChem; (k) that the CPDL Agreements, the Technology Transfer Agreement and the Assignment and Amendment Agreement constitute valid and binding contracts enforceable according to their terms; 20 -20- (l) that the Registration Statement with respect to the information provided by or pertaining to BioChem or the Institut Armand-Frappier, or to BioChem's knowledge, with respect to NAVA, does not contain an untrue statement of any material fact or omit any material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of the circumstances under which they were made; (m) the representations and warranties set out at Section 8 (a) of the Technology Transfer Agreement are true and correct; (n) no consent, approval or other action of any third party is required to be obtained by BioChem, or to BioChem's knowledge, by NAVA in connection with the transactions contemplated in this Agreement except the consent of CPDL to the Assignment and Amendment Agreement and the requisite approvals of securities regulatory authorities and stock exchanges, each of which shall be obtained by BioChem prior to the Closing; (o) the representations and warranties contained in this Section 4.2 shall be true in all material respects on and as of the Closing Date with the same force and effect as though such representations and warranties had been made on and as of the Closing Date and shall survive any investigations by or on behalf of NAVA and shall survive the Closing. SECTION FIVE COVENANTS 5.1 Covenants: NAVA (for itself and for American Vaccine and AMVAX) on one part and BioChem, on the other part, each covenant and agree during the period commencing on the date hereof and continuing until the Closing Date, except as required in order to consummate the transactions contemplated hereby and except as required by law: (a) to carry on their respective business in, and only in, the ordinary course in substantially the same manner as heretofore conducted and, to the 21 -21- extent consistent with such business to use all reasonable efforts to preserve intact their present business organizations and keep available the services of their present officers and employees and others having business dealings with them to the end that their respective goodwill and business shall be maintained; (b) not to declare any dividends on or make other distributions in respect of their outstanding shares and not to amend their respective Articles or By-laws; (c) not to issue, authorize or propose the issuance of, or purchase or propose the purchase of, any shares of their respective capital stock of any class or securities convertible into, or rights, warrants or options to acquire, any such shares or other convertible securities (other than such as are currently outstanding or contemplated by either corporation pursuant to written agreements, stock option plans, warrants, letters of intent, private placements or other commitments and which have been disclosed to the other party hereto in the Agreement); (d) not to acquire, or agree to acquire, by amalgamating, merging or consolidating with, purchasing substantially all of the assets of or otherwise, any business or any corporation, partnership, association or other business organization or division thereof, which acquisition would be material to the business or financial condition of the affected corporation (except in the case of BioChem, the IAF Vaccines Transaction); (e) not to sell, lease or otherwise dispose of any of their assets that are material, individually or in the aggregate, to their respective business or financial condition (except that American Vaccine may enter into a lease or purchase arrangement with respect to a manufacturing facility located in Beltsville, Maryland, upon terms and conditions subject to the approval of BioChem, such approval not to be unreasonably withheld); (f) in the case of NAVA not to guarantee the payment of indebtedness or incur indebtedness for money borrowed except in the ordinary course of business or issue or sell any debt securities; 22 -22- (g) to cooperate fully with each other in making available and providing access to all books, records, documents, management personnel and their independent auditors. SECTION SIX SURVIVAL 6.1 Survival of Representations, Warranties, Covenants and Undertakings: The representations, warranties, covenants and undertakings of BioChem and NAVA contained in this Agreement shall survive the Closing; provided, however, that except as otherwise provided in Section Seven, the representations and warranties contained in Section Four shall terminate on the second anniversary of the Closing Date. Except as otherwise provided herein, no claim shall be made for the breach of any representation or warranty contained in Section Four or under any certificate delivered with respect thereto under this Agreement after the date on which such representations and warranties terminate as set forth in this Section Six. SECTION SEVEN INDEMNIFICATION 7.1 Indemnification by BioChem: BioChem agrees to indemnify and hold harmless NAVA, American Vaccine and AMVAX and their affiliates, successors and assigns from and against any and all (a) claims, demands, liabilities, losses, costs or damages (collectively, "Loss") and (b) reasonable attorneys', legal assistants' and accountants' fees and expenses (collectively, "Expense") incurred by NAVA, American Vaccine and AMVAX and their affiliates, successors and assigns in connection with or arising from (i) any breach by BioChem of any of its covenants in this Agreement or in any agreement or instrument contemplated hereby or thereby; (ii) any failure of BioChem to perform any of its obligations in this Agreement or any agreement or instrument contemplated hereby or thereby; or (iii) any breach of any representation of any warranty or the inaccuracy of any representation of BioChem contained or referred to in this Agreement or any certificate referred to 23 -23- herein delivered by or on behalf of BioChem pursuant hereto or thereto. The indemnification provided for in this Section 7.1 shall terminate two (2) years after the Closing Date (and no claims shall be made by NAVA, American Vaccine and AMVAX or their affiliates, successors or assigns under this Section 7.1 thereafter), except that the indemnification by BioChem shall continue as to (a) the covenant of BioChem set forth in Section 8.9, as to which no time limitation shall apply; (b) the representation and warranty set forth in Section 4.2(h), which shall expire no earlier than the date of expiration of the applicable period stipulated in the applicable statute of limitations with respect to liability for any such taxes, penalties, interest or liabilities; and (c) any Loss or Expense of which NAVA, American Vaccine and AMVAX or their affiliates, successors or assigns has notified BioChem in accordance with the requirements of Section 7.3 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 7.1, as to which the obligation of BioChem shall continue until the liability of BioChem shall have been determined pursuant to this Section Seven, and BioChem shall have reimbursed NAVA, American Vaccine and AMVAX and their affiliates, successors or assigns for the full amount of such Loss and Expense in accordance with this Section Seven. 7.2 Indemnification by NAVA: NAVA agrees to indemnify and hold harmless BioChem and its affiliates, successors and assigns from and against any and all Loss and Expense incurred by BioChem and its affiliates, successors and assigns in connection with or arising from (a) any breach by NAVA of any of its covenants or agreements in this Agreement or any agreement or instrument contemplated hereby or thereby; (b) any failure by NAVA to perform any of its obligations under this Agreement or any agreement or instrument contemplated hereby or thereby; or (c) any breach of any warranty or the inaccuracy of any representation of NAVA contained or referred to in this Agreement or in any certificate referred to herein delivered by or on behalf of NAVA pursuant hereto or thereto. The indemnification provided for in this Section 7.2 shall terminate two (2) years after the Closing Date (and no claims shall be made by BioChem or its affiliates, successors or assigns under this Section 7.2 thereafter), except that the indemnification by NAVA shall continue as to i) the covenant of NAVA set forth 24 -24- in Section 8.9 as to which no time limitation shall apply; ii) the representation and warranty set forth in Section 4.1(m) which shall expire no earlier than the date of the expiration of the applicable period stipulated in the applicable statute of limitations with respect to liability for any such taxes, penalties, interest and liabilities; and iii) any Loss or Expense of which BioChem or its affiliates, successors or assigns has notified NAVA in accordance with the requirements of Section 7.3 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 7.2, as to which the obligation of NAVA shall continue until the liability of NAVA shall have been determined pursuant to this Section Seven, and NAVA shall have reimbursed BioChem and its affiliates, successors and assigns for the full amount of such Loss and Expense in accordance with this Section Seven. 7.3 Notice of Claims: If NAVA or BioChem believes that any of the persons indemnified under this Section Seven has suffered or incurred any Loss or Expense, NAVA or BioChem shall so notify the other promptly in writing describing such Loss or Expense, the amount thereof, if known, and the method of computation of such Loss or Expense, all with reasonable particularity and containing a reference to the provisions of this Agreement or any other agreement or any certificate delivered pursuant hereto or thereto in respect of which such Loss or Expense shall have occurred. If any action at law or suit in equity is instituted by or against a third party with respect to which any of the indemnified persons intends to claim any liability or expense as Loss or Expense under this Section Seven, any such indemnified person shall promptly notify the indemnifying party of such action or suit. 7.4 Third Party Claim: (a) Subject to paragraph (b) of this Section 7.4, the persons indemnified under this Section Seven shall have the right to conduct and control through counsel of their choosing, any third party claim, action or suit, and the persons indemnified may compromise or settle the same; provided that any of the indemnified persons shall give the indemnifying party advance notice of any proposed compromise or settlement and the indemnifying party shall have the right to 25 -25- approve or reject such proposed compromise or settlement. The indemnified person shall permit the indemnifying party to participate in the defense of any such action or suit through counsel chosen by it; provided that the fees and expenses of such counsel shall be borne by the indemnifying party. Subject to paragraph (b) of this Section 7.4, any compromise or settlement with respect to a claim for money damages effected after the indemnifying party by notice or settlement shall discharge the indemnifying party from liability with respect to the subject matter thereof, and no amount in respect thereof shall be claimed as Loss or Expense under this Section Seven. (b) If the remedy sought in any action or suit referred to in paragraph (a) of this Section 7.4 is solely money damages and will have no continuing effect on the business of any indemnified person, the indemnifying party shall have 15 business days after receipt of the notice referred to in the last sentence of Section 7.3 to notify the indemnified persons that it elects to conduct and control such action or suit. If the indemnifying party does not give the foregoing notice, the indemnified persons shall have the right to defend, contest, settle or compromise such action or suit in the exercise of their exclusive discretion, and the indemnifying party shall, upon request from any of the indemnified persons, promptly pay to such indemnified persons in accordance with the other terms of this Section Seven the amount of any Loss and all related Expenses resulting from such third-party claim. If the indemnifying party gives the foregoing notice, the indemnifying party shall have the right to undertake, conduct and control, through counsel of its own choosing and at the sole expense of the indemnifying party, the conduct and settlement of such action or suit, and the indemnified persons shall cooperate with the indemnifying party in connection therewith; provided that (i) the indemnifying party shall not thereby permit to exist any lien, encumbrance or other adverse charge upon any asset of any indemnified person; (ii) the indemnifying party shall permit the indemnified persons to participate in such conduct or settlement through counsel chosen by 26 -26- the indemnified persons, but the fees and expenses of such counsel shall be borne by the indemnified persons except as provided in clause (iii) below; and (iii) the indemnifying party shall agree promptly to reimburse to the extent required under this Section Seven the indemnified persons for the full amount of any Loss resulting from such action or suit and all related Expenses incurred by the indemnified persons, except fees and expenses of counsel for the indemnified persons incurred after the assumption of the conduct and control of such action or suit by the indemnifying party. So long as the indemnifying party is contesting any such action or suit in good faith, the indemnified persons shall not pay or settle any such action or suit. Notwithstanding the foregoing, the indemnified persons shall have the right to pay or settle any such action or suit; provided that in such event the indemnified persons shall waive any right to indemnity therefore by the indemnifying party, and no amount in respect thereof shall be claimed as Loss or Expense under this Section Seven. SECTION EIGHT MISCELLANEOUS 8.1 Registration Rights: The parties agree that they shall have the respective registration rights in connection with the subsequent offering of the BioChem Common Shares and the Common Shares as set forth in Schedule 4 hereto which Schedule is made a part of this Agreement and is incorporated herein by reference. 8.2 NAVA not to vote its BioChem Common Shares: NAVA covenants and agrees with BioChem that, for so long as it holds BioChem Common Shares, neither it nor any other person shall exercise the voting rights conferred by any of the BioChem Common Shares, unless and until: i) NAVA shall have sold or otherwise transferred any of the BioChem Common Shares to a person which is not a shareholder of NAVA and is not related to NAVA or to a NAVA shareholder, in which event, only those BioChem Common Shares that have been 27 -27- so sold or transferred shall confer voting rights; ii) a secured creditor which is not a shareholder of NAVA and is not related to NAVA or to a NAVA shareholder shall, pursuant to a bona fide loan, guarantee or other instrument of indebtedness, have become the owner by foreclosure of any BioChem Common Shares, in which event, only those BioChem Common Shares in respect of which ownership was so acquired shall confer voting rights; or iii) BioChem shall have issued and sold common shares from treasury to a person other than NAVA, a shareholder of NAVA or a person related to NAVA or to a NAVA shareholder pursuant to a private placement or public offering, including an issuance and sale to directors and officers of BioChem (excluding however, the issuance and sale of shares pursuant to employee or executive share purchase or stock option plans), but only to the extent of the number of BioChem Common Shares as is equal to the number of common shares so issued and sold by BioChem, provided that any sale, transfer or disposition in foreclosure pursuant to any agreement, plan or loan in existence as of the Closing Date shall not be taken into account for purposes of clauses (i), (ii) and (iii) of this Section 8.2. 8.3 Voting in favour of adoption of NAVA Share Option Plan: BioChem agrees to exercise the voting rights conferred by the Shares in favour of the adoption of the NAVA Share Option Plan to be adopted pursuant to the Agreement and Plan of Merger dated as of October 25, 1989, by and among NAVA, NAVA Merger Sub and American Vaccine. 8.4 Termination or Amendment: This Agreement may be terminated at any time prior to the filing and effectiveness of the Certificate of Merger with the Secretary of State of Delaware in accordance with the applicable provisions of the Delaware General Corporation Law (i) by mutual consent of the Boards of Directors of NAVA and BioChem, (ii) by either NAVA or BioChem if the share purchase has not been consummated by March 31, 1990 (unless such party's breach caused the delay), or (iii) by either NAVA or BioChem if the 28 -28- other party is in breach of its obligations under this Agreement. In addition, this Agreement may be amended, modified or supplemented by mutual agreement in writing of the Boards of Directors of NAVA and BioChem at any time prior to the effective time referred to hereinabove. In the event that this Agreement shall be terminated pursuant to this Section 8.4, all further obligations of the parties hereto (other than Section 8.9) shall be terminated without further liability of either party to the other, provided that nothing herein shall relieve any party from its liability for its willful breach of this Agreement. 8.5 Notices: Any notice required or permitted to be given hereunder shall be given by facsimile transmission, by registered mail or by personal delivery (including delivery by courier) to the party for whom it is intended, addressed as follows: TO NAVA: c/o American Vaccine 1052 West Street, Laurel, MD 20707 U.S.A. Fax #: 301-470-4219 Attention: President with a copy to: American Vaccine 1052 West Street, Laurel, MD 20707 U.S.A. Fax #: 301-470-4219 Attention: President with a copy to: Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W. Washington, D.C. 20037 Fax #: 202-663-8007 Attention: L. Duane Cheek
29 -29- TO BIOCHEM: IAF BioChem International Inc. 10900 Hamon Street Montreal Quebec H3M 3A2 Fax #: 514-335-9919 Attention: President
Any notice, if delivered, shall be deemed to have been given or made on the date on which it was transmitted by facsimile or delivered in person or if mailed, shall be deemed to have been given on the third business day following the day on which it was mailed. 8.6 Further documents: The parties hereto undertake to do, sign, execute and deliver such other things, deeds of documents required to give full effect to the Agreement and the transactions contemplated hereby. 8.7 Binding effect: This Agreement may not be assigned by either party hereto without the prior written consent of the other party hereto and shall enure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. 8.8 Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. 8.9 Confidential Nature of Information: Each party agrees that it will treat in confidence all documents, materials and other information ("Confidential Information") which it shall have obtained regarding the other party (including all information regarding American Vaccine and AMVAX) during the course of the negotiations leading to the consummation of the transactions contemplated hereby and the preparation of this Agreement and other related documents, and, in 30 -30- the event the transactions contemplated hereby shall not be consummated, each party will return to the other party all copies of Confidential Information which have been furnished in connection therewith and neither party shall retain duplicates or copies of such Confidential Information nor use such Confidential Information for any business advantage. The obligation of each party to treat such documents, materials and other information in confidence shall not apply to any information which (i) such party can demonstrate was already lawfully in its possession prior to the disclosure thereof by the other party, (ii) is known to the public and did not become so known through any violation of a legal obligation, (iii) became known to the public through no fault of such party or (iv) is later lawfully acquired by such party from other sources. 8.10 Letter Agreement: The Agreement supersedes the letter agreement entered into between BioChem and American Vaccine dated as of July 28, 1989 as amended. IN WITNESS WHEREOF the parties hereto have duly executed this agreement on the date first hereinabove mentioned. NORTH AMERICAN VACCINE INC. Per:/s/ Sharon Mates ----------------------------- Name and Title Sharon Mates, Ph.D. President IAF BIOCHE NTERNATIONAL INC. Per:/s/ --------------------------- Name and Title 31 INTERVENTION For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, American Vaccine and AMVAX, jointly and severally with NAVA (American Vaccine and AMVAX hereby waiving the benefit of division and discussion) hereby i) make all representations and warranties made by NAVA in Section 4.1 of the Share Purchase Agreement entered into between BioChem and NAVA dated January 17, 1990 (the "Share Purchase Agreement") (the "NAVA Representations and Warranties"), only to the extent such representations and warranties concern American Vaccine or AMVAX, provided that where the NAVA Representations and Warranties are made to the knowledge of NAVA, the representations and warranties made by American Vaccine or AMVAX as the case may be, are made to their respective knowledge and ii) agree to be jointly and severally bound with NAVA by the covenants, undertakings and obligations of NAVA set out at Sections 3.2, 5.1, 6.1 and 7.2 of the Share Purchase Agreement. DATED this 17th day of January, 1990. AMERICAN VACCINE CORPORATION Per:/s/ --------------------------------- Name and Title: President Per:/s/ --------------------------------- Name and Title Sr. V.P. AMVAX, INC. Per:/s/ --------------------------------- Name and Title: President Per:/s/ --------------------------------- Name and Title: President 32 Schedule 1 to the Share Purchase Agreement entered into on January 17, 1990 between North American Vaccine, Inc. and IAF BioChem International Inc.
Name of Number Exercise Vesting Expiry (1) Payment to Holder of shares Price Date Date Exercise ------- --------- -------- ------- ---------- ----------- Neil Flanzreich 5,000 $6.75 / / / / $33,750.00 Phillip Frost 30,000 $7.75 4/4/89 4/4/94 $232,500.00 Phillip Frost 30,000 $7.75 4/4/90 4/4/94 $232,500.00 Phillip Frost 40,000 $7.75 4/4/91 4/4/94 $310,000.00 Lance Gordon 107,546 $1.06 9/15/89 5/16/92 $113,998.76 Lance Gordon 25,000 $6.75 9/15/89 1/ /94 $168,750.00 Lance Gordon 25,000 $6.75 9/15/90 1/ /94 $168,750.00 Lance Gordon 25,000 $6.75 9/15/91 1/ /94 $168,750.00 Lance Gordon 25,000 $6.75 9/15/92 1/ /94 $168,750.00 Michael Healy 15,000 $7.25 / / / / $10,875.00 Lawrence Hineline 2,500 $7.25 5/17/90 5/17/94 $18,125.00 Lawrence Hineline 2,500 $7.25 5/17/91 5/17/94 $18,125.00 Lawrence Hineline 2,500 $7.25 5/17/92 5/17/94 $18,125.00 Lawrence Hineline 2,500 $7.25 5/17/93 5/17/94 $18,125.00 Carl Hochman 10,000 $2.00 11/13/86 11/13/91 $20,000.00 Lyle Kasprick 30,000 $7.75 4/4/89 4/4/94 $232,500.00 Lyle Kasprick 30,000 $7.75 4/4/90 4/4/94 $232,500.00 Lyle Kasprick 40,000 $7.75 4/4/91 4/4/94 $310,000.00
- ------------------------- (1) If such Expiry Date for any NAVA Options is accelerated pursuant to the terms of the applicable Option Agreement, the Expiry Date for the corresponding BioChem Options shall be the later of the date 30 days following the accelerated Expiry Date or the date 30 days following receipt by BioChem of written notice pursuant to Section 2.2(c) of the Share Purchase Agreement. 33 - 2 - Cormac Lannon 5,000 $7.25 (2) 2/14/94 $36,250.00 Cormac Lannon 5,000 $7.25 (3) 2/14/94 $36,250.00 [UNREADABLE] Maan 5,000 $7.25 __/__/__ __/__/__ $36,250.00 Lee Wenlii Lin 5,500 $7.25 2/14/89 2/14/94 $39,875.00 Wenlii Lin 5,500 $7.25 2/14/90 2/14/94 $39,875.00 Wenlii Lin 5,500 $7.25 2/14/91 2/14/94 $39,875.00 Wenlii Lin 5,500 $7.25 2/14/92 2/14/94 $39,875.00 Wenlii Lin 5,500 $7.25 2/14/93 2/14/94 $39,875.00 George Marshall 15,000 $7.25 __/__/__ __/__/__ $108,750.00 Sharon Mates 30,000 $7.75 4/4/89 4/4/94 $232,500.00 Sharon Mates 30,000 $7.75 4/4/90 4/4/94 $232,500.00 Sharon Mates 40,000 $7.75 4/4/91 4/4/94 $310,000.00 Richard Pfenniger 5,000 $7.75 4/4/89 4/4/94 $38,750.00 Richard Pfenniger 5,000 $7.75 4/4/90 4/4/94 $38,750.00 Richard Pfenniger 5,000 $7.75 4/4/91 4/4/94 $38,750.00 Jacques Rubin 25,000 $7.25 5/17/90 5/17/94 $181,250.00 Jacques Rubin 25,000 $7.25 5/17/91 5/17/94 $181,250.00 Jacques Rubin 25,000 $7.25 5/17/92 5/17/94 $181,250.00 Jacques Rubin 25,000 $7.25 5/17/93 5/17/94 $181,250.00 Barbara Sampson 1,250 $7.75 10/21/89 4/4/94 $9,687.50 Barbara Sampson 1,250 $7.75 3/5/90 4/4/94 $9,687.50
- ----------- (2) The date of completion of American Vaccine's Beltsville plant. (3) The date on which American Vaccine's Beltsville plant commences operation. 34 - 3 - Barbara Sampson 1,250 $7.75 7/3/90 (4) 4/4/94 $ 9,687.50 Barbara Sampson 1,250 $7.75 10/31/90(4) 4/4/94 $ 9,687.50 Barbara Sampson 1,250 $7.75 2/28/91(4) 4/4/94 $ 9,687.50 Barbara Sampson 1,250 $7.75 6/28/91(4) 4/4/94 $ 9,687.50 Barbara Sampson 1,250 $7.75 10/26/91(4) 4/4/94 $ 9,687.50 Barbara Sampson 1,250 $7.75 2/23/92(4) 4/4/94 $ 9,687.50 Ronald Sekura 54,565 $0.004 9/15/89 5/16/92 $ 618.26 Ronald Sekura 25,000 $6.75 9/15/89 1/__/94 $168,750.00 Ronald Sekura 25,000 $6.75 9/15/90 1/__/94 $168,750.00 Ronald Sekura 25,000 $6.75 9/15/91 1/__/94 $168,750.00 Ronald Sekura 25,000 $6.75 9/15/92 1/__/94 $168,750.00 Ronald Sekura 12,500 $6.75 __/__/__ __/__/__ $ 84,375.00 Ronald Sekura 12,500 $6.75 __/__/__ __/__/__ $ 84,375.00 Victor Siegel 3,500 $2.75 8/22/86 8/22/91 $ 9,625.00 Jeffrey Spragens 30,000 $8.25 4/4/89 4/4/94 $247,500.00 Jeffrey Spragens 30,000 $8.25 4/4/90 4/4/94 $247,500.00 Jeffrey Spragens 40,000 $8.25 4/4/91 4/4/94 $330,000.00 Yan-Ling Zhang 5,000 $7.75 4/4/89 4/4/94 $ 38,750.00 Yan-Ling Zhang 5,000 $7.75 4/4/90 4/4/94 $ 38,750.00 Yan-Ling Zhang 5,000 $7.75 4/4/91 4/4/94 $ 38,750.00
WARRANTS Name of Number of Exercise Vesting Expiry Payment to Warrant Holder Shares Price Date Date Exercise - -------------- --------- -------- ------- ------ ---------- B.N. Wolf & Co. 64,688 $4.80 7/31/86 7/31/90 $310,502.40
- -------------- (4) Vesting is also conditioned upon the exercise by the National Institute of health of its option to review its contract with American Vaccine for the provision of bulk pertussis toxoid for each such 120-day period. 35 SCHEDULE 2 SHAREHOLDERS' AGREEMENT (See Exhibit 9.1 to the Registration Statement) 36 SCHEDULE 3 TECHNOLOGY TRANSFER AGREEMENT See Exhibit 2.4 to the Registration Statement) 37 SCHEDULE 4 REGISTRATION RIGHTS SECTION ONE BIOCHEM REGISTRATION RIGHTS 1.1. Certain Definitions. As used in this Section 1 to Schedule 4 of the Share Purchase Agreement entered into between North American Vaccine, Inc. and IAF BioChem International Inc. on January 17, 1990, (the "Share Purchase Agreement") the following terms shall have the following respective meanings, and all other defined terms shall have the meanings ascribed thereto in the Share Purchase Agreement. "Registrable Securities" shall mean (i) the Common Shares and (ii) any NAVA common shares issued pursuant to the Options or issued or issuable in respect of the Common Shares, upon any stock split, stock dividend, recapitalization, or similar event, so long as the Common Shares and any NAVA common shares issued in respect of the Common Shares are owned by BioChem. The terms "register," "registered" and "registration" refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement. "Registration Expenses" shall mean all expenses incurred by NAVA in complying with Sections 1.2 and 1.3 hereof, including, without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for NAVA, blue sky fees 38 -2- and expenses (including those of counsel for the underwriters(s)), marketing expenses and the expense of any special audits incident to or required by any such registration (but excluding the compensation of regular employees of NAVA which shall be paid by NAVA). "SEC" shall mean the Securities and Exchange Commission or any other Federal agency at the time administering the Securities Act. "Selling Expenses" shall mean all underwriting discounts, selling commissions and stock transfer taxes applicable to the securities registered by BioChem and all fees and disbursements of counsel for BioChem. "Securities Act" shall mean the Securities Act of 1933. 1.2. Requested Registration. (a) Request for Registration. BioChem shall have a one time right pursuant to this Section 1.2 to request NAVA to register the offering of up to all but not less than 25% of BioChem's Registrable Securities owned by BioChem as of the Closing Date. In case NAVA shall receive from BioChem a written request pursuant to Section 1.2(b) hereof that NAVA effect any registration, qualification or compliance with respect to the Registrable Securities, NAVA will, as soon as practicable, use its best efforts to effect such registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental 39 -3- requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all Registrable Securities owned by BioChem; provided, however, that NAVA shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 1.2: (i) in any particular jurisdiction in which NAVA would be required to execute a general consent to service of process in effecting such registration, qualification or compliance unless NAVA is already subject to service in such jurisdiction and except as may be required by the Securities Act; (ii) prior to the first anniversary of the Closing Date; (iii) during the period starting with the date 50 days prior to NAVA's estimated date of filing of, and ending on the date 90 days immediately following the effective date of any registration statement pertaining to securities of NAVA (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided that NAVA is actively employing in good faith all reasonable efforts to cause such registration statement to become effective and that NAVA's estimate of the date of filing of such registration statement is made in good faith; (iv) after NAVA has effected one such registration pursuant to this subparagraph 1.2(a) and such registration has been declared or ordered effective; 40 -4- (v) if NAVA shall furnish to BioChem a certificate signed by the President of NAVA stating that in the good fath judgment of the Board of Directors it would be seriously detrimental to NAVA or its shareholders for a registration statement to be filed in the near future, in which case NAVA's obligation to use its best efforts to register, qualify or comply under this Section 1.2 shall be deferred not more than once for a period not to exceed 90 days; or (vi) after the fifth anniversary of the Closing Date; Subject to the foregoing clauses (i) through (vi), NAVA shall file a registration statement covering an offering of the Registrable Securities so requested to be registered as soon as practicable after receipt of the request of BioChem. (b) Notice. The right of BioChem to registration pursuant to Section 1.2 shall be conditioned upon NAVA's receipt of written notice from BioChem which shall include a description of BioChem's proposed plan of distribution of its Registrable Securities and the underwriting arrangements, if any. In the context of such registration with a view to a non-exempt offering, NAVA shall have the right to approve such plan of distribution and underwriting arraigements, which approval will not be unreasonably withheld. Nothing herein shall apply to an offering by way of private placement. 1.3. Piggyback Registration Rights. (a) Notice of Registration. If, at any time or from time to time, NAVA shall determine to register any of its 41 -5- securities, either for its own account or the account of a securityholder or holders (other than BioChem) exercising their respective demand registration rights, other than (i) a registration relating solely to employee benefit plans, or (ii) a registration relating solely to a SEC Rule 145 transaction, NAVA will: (A) promptly give to BioChem written notice thereof; and (B) include in such registration (and any related qualification under blue sky laws or other compliance), and in any underwriting involved therein, all the Registrable Securities specified in a written request or requests, made within 30 days after receipt of such written notice from NAVA by BioChem; provided, however, that NAVA shall have no obligation to include in such registration a number of Registrable Securities equal to less than 25% of the Registrable Securities owned by BioChem as of the Closing Date. (b) Underwriting. If the registration of which NAVA gives notice is for a registered public offering involving an underwriting, NAVA shall so advise BioChem as a part of the written notice given pursuant to Section 1.3(a) above. In such event, the right of BioChem to registration pursuant to Section 1.3(a) shall be conditioned upon BioChem's participation in such underwriting and the inclusion of Registrable Securities in the underwriting to the extent provided herein. BioChem, if it is proposing to distribute its Registrable Securities through such underwriting, shall (together with NAVA) enter into an underwriting agreement in customary form with the managing underwriter selected for 42 -6- such underwriting by NAVA. Notwithstanding any other provision of this Section 1.3, if the managing underwriter determines that marketing factors require a limitation of the number of Registrable Securities to be underwritten, the managing underwriter may limit the Registrable Securities to be included in such registration or completely exclude the Registrable Securities from such registration. NAVA shall so advise BioChem of the number of Registrable Securities that may be included in the registration and underwriting. If BioChem disapproves of the terms of any such underwriting, it may elect to withdraw therefrom, without the loss to BioChem of any rights under this Section 1, by written notice to NAVA and the managing underwriter. Any securities excluded or withdrawn from such underwriting shall be withdrawn from such registration, and shall not be transferred in a public distribution prior to 90 days after the effective date of the registration statement relating thereto. NAVA may include common shares held by shareholders other than BioChem in a registration statement pursuant to Section 1.2 and this Section 1.3 only if, and to the extent, the amount of Registrable Securities includable in such registration would not thereby be diminished. (c) Right to Terminate Registration. NAVA shall have the right to terminate or withdraw any registration initiated by it under this Section 1.3 prior to the effectiveness of such registration whether or not BioChem has elected to include securities in such registration. (d) Termination of Registration Rights. BioChem's registration rights under this Section 1.3 shall terminate on the fifth anniversary of the Closing Date. 43 -7- 1.4. Expenses of Registration. All Registration Expenses and Selling Expenses incurred in connection with a registration pursuant to Section 1.2 shall be borne by BioChem; provided, however, that in the event one or more holders of NAVA common shares exercise any piggyback registration rights with respect to a registration under Section 1.2, BioChem shall have no obligation to pay for that portion of the Registration Expenses incurred as a result of such holder's or holders' exercise of such piggyback registration rights. All Selling Expenses incurred in connection with any registration pursuant to Section 1.3 shall be borne by BioChem and a pro rata share of the Registration Expenses incurred in connection with any registration pursuant to Section 1.3 shall be borne by BioChem on the basis of the number of Registrable Securities so registered divided by the aggregate number of shares registered pursuant to such registration. 1.5. Registration Procedures. In the case of each registration, qualification or compliance effected by NAVA pursuant to this Section 1, NAVA will keep BioChem advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. At the expense of BioChem and/or NAVA as determined pursuant to Section 1.4, NAVA will: (a) prepare and file with the SEC a registration statement with respect to such securities and use its best efforts to cause such registration statement to become and remain effective for at least 120 days, and prepare and file with the SEC such amendments to such registration statement and supplements to the prospectus contained therein as may be necessary to keep such registration statement effective 44 -8- or current, as the case may be, for at least 120 days; provided that no such registration shall constitute a shelf registration under Rule 415 promulgated by the SEC under the Securities Act; (b) enter into a written underwriting agreement in customary form and substance reasonably satisfactory to NAVA, BioChem and the managing underwriter or underwriters of the public offering of such securities, if the offering is to be underwritten in whole or in part; (c) furnish to BioChem if it is participating in such registration and to the underwriters of the securities being registered such reasonable number of copies of the registration statement, preliminary prospectus, final prospectus and such other documents as such underwriters may reasonably request in order to facilitate the public offering of such securities; (d) use its best efforts to register or qualify the securities covered by such registration statement under such state securities or blue sky laws of such jurisdictions as BioChem may reasonably request within ten days prior to the original filing of such registration statement, except that NAVA shall not for any purpose be required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction where it is not so qualified; (e) notify BioChem, promptly after it shall receive notice thereof, of the time when such registration statement has become effective or a supplement to any prospectus forming a part of such registration statement has been filed; 45 -9- (f) notify BioChem promptly of any request by the SEC for the amending or supplementing of such registration statement or prospectus or for additional information; (g) prepare and file with the SEC promptly upon the request of BioChem, any amendments or supplements to such registration statement or prospectus which, in the reasonable opinion of counsel for BioChem, is required under the Securities Act or the rules and regulations thereunder in connection with the distribution of the Registrable Securities by BioChem; (h) prepare and promptly file with the SEC, and promptly notify BioChem of the filing of, such amendment or supplement to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event has occurred as the result of which any such registration statement or prospectus contains an untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, not misleading, in the light of the circumstances in which they were made; (i) in case BioChem or any underwriter for BioChem is required to deliver a prospectus at a time when the prospectus then in effect may no longer be used under the Securities Act, prepare promptly upon request such amendment or amendments to such registration statement and such prospectuses as may be necessary to permit compliance with the requirements of the Securities Act; 46 -10- (j) advise BioChem, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the SEC suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for that purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued; and (k) at the request of BioChem, furnish on the effective date of the registration statement and, if such registration includes an underwritten public offering, at the closing provided for in the underwriting agreement, (i) an opinion, dated each such date, of the counsel representing NAVA for the purposes of such registration, addressed to the underwriters, if any, and to BioChem, covering such matters with respect to the registration statement, the prospectus and each amendment or supplement thereto, proceedings under state and Federal securities laws, other matters relating to NAVA, the securities being registered and the offer and sale of such securities as are customarily the subject of opinions of issuer's counsel provided to underwriters in underwritten public offerings, and (ii) to the extent NAVA's accounting firm is willing to do so, a letter dated each such date, from the independent certified public accountants of NAVA, addressed to the underwriters, if any, and to BioChem, stating that they are independent certified public accountants of NAVA, addressed to the underwriters, if any, and to BioChem, stating that they are independent certified public accountants within the meaning of the Securities Act and that in the opinion of such accountants the financial statements and other financial data of NAVA included in the registration statement or the prospectus or any amendment or supplement thereto comply in all material respects with the applicable accounting 47 -11- requirements of the Securities Act, and additionally covering such other financial matters, including information as to the period ending not more than five business days prior to the date of such letter with respect to the registration statement and prospectus, as the underwriters or BioChem may reasonably request. 1.6. Indemnification. (a) NAVA will indemnify BioChem, each of its officers, directors and partners, and each person controlling BioChem within the meaning of Section 15 of the Securities Act, with respect to which registration, qualification or compliance has been effected pursuant to this Section 1, and each underwriter, if any, and each person who controls any underwriter within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages or liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation by NAVA of any rule or regulation promulgated under the Securities Act applicable to NAVA in connection with any such registration, qualification or compliance, and NAVA will reimburse BioChem, each of its officers, directors and partners, and each person controlling BioChem, each such underwriter and 48 -12- each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, provided that NAVA will no. be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to NAVA by an instrument duly executed by BioChem or any such controlling person or underwriter expressly for use therein. (b) BioChem will indemnify NAVA, each of its directors and officers, each underwriter, if any, of NAVA's securities covered by such a registration statement and each person who controls NAVA or such underwriter within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages or liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and will reimburse NAVA, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any 49 -13- such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to NAVA by an instrument duly executed by BioChem expressly for use therein. (c) Each party entitled to indemnification under this Section 1.6 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 1 unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgement or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. 50 -14- 1.7. Information by BioChem. It shall be a condition precedent to the obligations of NAVA to effect a registration pursuant to this Section 1 that BioChem shall furnish to NAVA such information regarding BioChem, the Registrable Securities held by it and the distribution proposed by BioChem as NAVA may request in writing and as shall be required in connection with any registration qualification or compliance referred to in this Section 1. 1.8. No Transfer of Registration Rights. The rights to cause NAVA to register securities granted to BioChem under Section 1.2 and 1.3 are not assignable in connection with any transfer or assignment of Registrable Securities by BioChem or otherwise. 1.9. Limitation on Injunctions. BioChem shall not have any right to obtain or seek an injunction restraining or otherwise delaying any registration as the result of any controversy that might arise with respect to the interpretation or implementation of the provisions of this Section 1. SECTION TWO NAVA REGISTRATION RIGHTS 2.1. Certain Definitions. As used in this Section 2 to Schedule 4 of the Share Purchase Agreement, the following terms shall have the following respective meanings, and all other defined terms shall have the meaning ascribed thereto in the Share Purchase Agreement. 51 -15- "Commissions" shall mean the securities commissions of the Provinces of Quebec and Ontario. "Securities" shall mean (i) the BioChem Common Shares and (ii) any BioChem common shares issued or issuable in respect of the BioChem Common Shares, upon any stock split, stock dividend, recapitalization, or similar event, so long as the BioChem Common Shares and any BioChem Common Shares issued in respect of the BioChem Common Shares are owned by NAVA. The terms "qualify," and "qualified for distribution" refer to qualification for distribution (including, where appropriate, distribution to the public) of Securities effected by preparing and filing with the Commissions a prospectus in compliance with the Securities Act. "Expenses" shall mean all expenses incurred by BioChem in complying with Sections 2.2 and 2.3 hereof, including, without limitation, all qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for BioChem (including those of counsel for the underwriters(s)), marketing expenses and the expense of any special audits incident to or required by any such qualification for distribution (but excluding the compensation of regular employees of BioChem which shall be paid by BioChem). "Selling Expenses" shall mean all underwriting discounts, selling commissions and share transfer taxes applicable to the securities qualified for distribution by NAVA and all fees and disbursements of counsel for NAVA. 52 -16- "Securities Acts" shall mean the securities acts of the Provinces of Quebec and Ontario. 2.2. Requested Qualification For Distribution. (a) Request for Qualification for Distribution. NAVA shall have a one time right pursuant to this Section 2.2 to request BioChem to qualify for distribution the offering of all, but not a portion of the Securities owned by NAVA at the time of such request. In case BioChem shall receive from NAVA a written request that BioChem effect any qualification for distribution with respect to the Securities, BioChem will, as soon as practicable, use its best efforts to effect such qualification for distribution (including, without limitation, appropriate compliance with the Securities Acts and any other securities regulatory and stock exchange requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all Securities owned by NAVA; provided, however, that BioChem shall not be obligated to take any action to effect any such qualification for distribution pursuant to this Section 2.2: (i) in any particular jurisdiction in which BioChem would be required to execute a general consent to service of process in effecting such qualification for distribution unless BioChem is already subject to service in such jurisdiction and except as may be required by the Securities Act; (ii) prior to the first anniversary of the Closing Date; 53 -17- (iii) during the period starting with the date 60 days prior to BioChem's estimated date of filing of, and ending on the date 90 days immediately following the date of any preliminary prospectus qualifying the distribution of securities of BioChem (other than a distribution of securities under Section 50 of the Securities Act (Quebec) or Sections 71(1)(h) or 71(1)(i) of the Securities Act (Ontario) or with respect to any employee benefit plan); provided that BioChem is actively employing in good faith all reasonable efforts to file its final prospectus and obtain receipts in respect thereof from the Commissions and that BioChem's estimate of the date or filing of the preliminary prospectus is made in good faith; (iv) after BioChem has effected one such qualification pursuant to this subparagraph 2.2(a), and receipts in respect of a final prospectus have been issued under the Securities Acts in connection therewith and the securities offered pursuant to such qualification for distribution have been sold; (v) if BioChem shall furnish to NAVA a certificate signed by the President of BioChem stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to BioChem or its shareholders for a prospectus to be filed in the near future, in which case BioChem's obligation to use its best efforts to qualify under this Section 2.2 shall be deferred, not more than once in any 12-month period, for a period not to exceed 90 days; or (vi) after the fifth anniversary of the Closing Date. 54 -18- Subject to the foregoing clauses (i) through (vi), BioChem shall file a prospectus qualifying a distribution of Securities so requested to be qualified for distribution as soon as practicable, after receipt of the request of NAVA. (b) Notice. The right of NAVA to qualification for distribution pursuant to Section 2.2 shall be conditioned upon BioChem's receipt of written notice from NAVA which shall include a description of NAVA's proposed plan of distribution and its Securities and the underwriting arrangements, if any. (c) Offering of Securities in the United States. If at the time of any offering pursuant to Section 2.2, the common shares of BioChem are registered under the Securities Act of 1933 and in connection with such offering, NAVA desires to offer for sale its Securities in the United States, the parties hereto shall negotiate in good faith, terms and conditions for the registration of such securities in the United States comparable to those set forth in Section 1.2 hereof. 2.3. Piggyback Rights. (a) Notice of Qualification for Distribution. If, at any time or from time to time, BioChem shall determine to qualify for distribution to the public by prospectus any of its common shares, either for its own account or the account of a securityholder or holders (other than NAVA) exercising their respective demand qualification for distribution rights, other than (i) a distribution relating solely to employee benefit plans, or (ii) a distribution that is 55 -19- exempted from the prospectus requirements of the Securities Acts, BioChem will: (A) promptly give to NAVA written notice thereof; and (B) include in such qualification for distribution and in any underwriting involved therein, all the Securities specified in a written request or requests, made within 30 days after receipt of such written notice from BioChem by NAVA; provided, however, that BioChem shall have no obligation to include in such qualification for distribution a number of Securities equal to less than 25% of the Securities owned by NAVA as of the Closing Date. (b) Underwriting. If the qualification for distribution of which BioChem gives notice is for a public offering involving an underwriting, BioChem shall so advise NAVA as a part of the written notice given pursuant to Section 2.3(a) above. In such event, the rights of NAVA pursuant to Section 2.3(a) shall be conditioned upon NAVA's participation in such underwriting and the inclusion of Securities in the underwriting to the extent provided herein. NAVA, if it is proposing to distribute its Securities through such underwriting, shall (together with BioChem) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by BioChem. Notwithstanding any other provision of this Section 2.3, if the managing underwriter determines that marketing factors require a limitation of the number of Securities to be underwritten, the managing underwriter may limit the Securities to be included in such distribution or completely exclude the Securities from such distribution. BioChem shall so advise NAVA of the number of 56 -20- Securities that may be included in the distribution and underwriting. If NAVA disapproves of the terms of any such underwriting, it may elect to withdraw therefrom, without the loss to NAVA of any rights under this Section 2, by written notice to BioChem and the managing underwriter. Any securities excluded or withdrawn from such underwriting shall not be transferred in a public offering prior to 90 days after the date of the final prospectus relating thereto. BioChem may include common shares held by shareholders other than NAVA in a distribution pursuant to Section 2.2 and this Section 2.3 only if, and to the extent, the amount of Securities includable in such distribution would not thereby be diminished. (c) Right to Terminate Distribution BioChem shall have the right to terminate or withdraw from any distribution initiated by it under this Section 2.3 prior to the date of closing of such distribution whether or not NAVA has elected to include Securities in such distribution. (d) Termination of Registration Rights. NAVA's registration rights under this Section 2.3 shall terminate on the fifth anniversary of the Closing Date. 2.4. Expenses All Expenses and Selling Expenses incurred in connection with a distribution pursuant to Section 2.2 shall be borne by NAVA; provided, however, that in the event one or more holders of BioChem common shares exercise any piggyback rights with respect to a qualification for distribution under Section 2.2, NAVA shall have no obligation to pay for that portion of the Expenses incurred as a result of such holder's or holders' exercise of such piggyback rights. All Selling Expenses incurred in 57 -21- connection with any distribution pursuant to Section 2.3 shall be borne by NAVA and a pro rata share of the Expenses incurred in connection with any distribution pursuant to Section 2.3 shall be borne by NAVA on the basis of the number of Securities so qualified for a distribution divided by the aggregate number of shares qualified for distribution pursuant to such qualification for distribution. 2.5. Qualification of Distribution Procedures. In the case of a distribution effected by BioChem pursuant to this Section 2., BioChem will keep NAVA advised in writing as to the initiation of each such distribution and as to the completion thereof. At the expense of NAVA and/or BioChem as determined pursuant to Section 2.4, BioChem will: (a) prepare and file with the Commissions a preliminary prospectus with respect to such securities and use its best efforts to prepare and file with the Commissions a final prospectus; provided that no such prospectus shall constitute a shelf prospectus under Section 24.1 of the Securities Act (Quebec) or Section 52.2 of the Securities Act (Ontario). (b) enter into a written underwriting agreement in customary form and substance reasonably satisfactory to BioChem, NAVA and the managing underwriter or underwriters of the public offering of such securities, if the distribution is to be underwritten in whole or in part; (c) furnish to NAVA if it is participating in such distribution and to the underwriters of the securities being qualified such reasonable number of copies of the preliminary prospectus, final prospectus and such other 58 -22- documents as such underwriters may reasonably request in order to facilitate the public offering of such securities; (e) notify NAVA, promptly after it shall receive notice thereof, of the time when receipts in respect of the preliminary and final prospectuses have been issued by the Commissions. (f) notify NAVA promptly of any request by the Commissions for the amending or supplementing of the preliminary and final prospectuses or for additional information; (g) prepare and file with the Commissions promptly upon the request of NAVA, any amendments or supplements to the preliminary or final prospectuses which, in the reasonable opinion of counsel for NAVA, is required under the Securities Act in connection with the distribution of the Securities by NAVA; (h) prepare and promptly file with the Commissions, and promptly notify NAVA of the filing of, such amendment or supplement to the preliminary or final prospectuses if, since the filing of the preliminary or final prospectus, a change in a "material fact" (as such expression is defined under the Securities Acts) has occurred which is or may be of such a nature as to render such prospectus untrue or misleading or result in a misrepresentation (as defined in the Securities Acts) therein likely to affect the value or the market price of the securities to be distributed or which would result in such prospectus not complying (to the extent such compliance is required) with the Securities Acts. 59 -23- (i) in case NAVA or any underwriter for NAVA is required to deliver a prospectus at a time when the prospectus then in effect may no longer be used under the Securities Acts, prepare promptly upon request such amendment or amendments to such prospectuses as may be necessary to permit compliance with the requirements of the Securities Acts; (j) advise NAVA, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any cease trade order by the Commissions relating to the distribution of the securities or the initiation or threatening of any proceeding for that purpose and promptly use its best efforts to prevent the issuance of any cease trade order or to obtain its withdrawal if such cease trade order should be issued; and (k) at the request of NAVA, furnish on the closing date provided for in the underwriting agreement, (i) an opinion, dated such date, of the counsel representing BioChem for the purposes of such qualification for distribution, addressed to the underwriters, if any, and to NAVA, covering such matters with respect to the prospectus and each amendment or supplement thereto, proceedings under applicable securities laws, other matters relating to BioChem, the securities being qualified for distribution and the offer and sale of such securities as are customarily the subject of opinions of issuer's counsel provided to underwriters in underwritten public offerings, and (ii) to the extent BioChem's accounting firm is willing to do so, a letter dated such date, from the independent auditors of BioChem, addressed to the underwriters, if any, and to NAVA, 60 -24- stating that they are independent auditors and that in the opinion of such auditors, the financial statements and other financial data of BioChem included in the prospectus or any amendment or supplement thereto comply in all material respect with the applicable accounting requirements of the Securities Acts, and additionally covering such other financial matters, including information as to the period ending not more than five business days prior to the date of such letter with respect to the prospectus, as the underwriters or NAVA may reasonably request. 2.6. Indemnification. (a) BioChem will indemnify NAVA, each of its officers and directors and each person controlling NAVA within the meaning of the Securities Acts, with respect to the qualification for distribution effected pursuant to this Section 2, and each underwriter, if any, and each person who controls any underwriter within the meaning of the Securities Acts, against all expenses, claims, losses, damages or liabilities (or actions in respect thereof), which may be incurred or arise by reason of the preliminary or the final prospectus containing any misrepresentation (as defined in the Securities Acts) or containing any information or statement that is untrue with respect to a material fact (as defined in the Securities Acts) or by reasons of the omission to state therein any fact required to be stated therein or necessary to make the statements therein not misleading in the circumstances they were made, or any violation by BioChem under the Securities Acts in connection with any such qualification for distribution, and BioChem will reimburse NAVA, each of its officers and directors and each person controlling NAVA, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably 61 -25- incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, provided that BioChem will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to BioChem by an instrument duly executed by NAVA or any such controlling person or underwriter expressly for use therein. (b) NAVA will indemnify BioChem, each of its directors and officers, each underwriter, if any, of BioChem's securities covered by such a qualification for distribution and each person who controls BioChem or such underwriter within the meaning of the Securities Acts, against all expenses, claims, losses, damages or liabilities (or actions in respect thereof), which may be incurred or arise by reason of the preliminary or the final prospectus containing any misrepresentation (as defined in the Securities Acts) or containing any information or statement that is untrue with respect to a material fact (as defined in the Securities Acts) or by reason of the omission to state therein any fact required to be stated therein or necessary to make the statements therein not misleading in the circumstances they were made and will reimburse BioChem, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, in each case to the extent, but only the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such prospectus, 62 -26- offering circular or other document in reliance upon and in conformity with written information furnished to BioChem by an instrument duly executed by NAVA expressly for use therein. (c) Each party entitled to indemnification under this Section 2.6 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 2 unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such claim or litigation. 2.7. Information by NAVA. It shall be a condition precedent to the obligations of BioChem to effect a qualification for distribution pursuant to this Section 2 63 -27- that NAVA shall furnish to BioChem such information regarding NAVA, the Securities and the distribution proposed by NAVA as BioChem may request in writing and as shall be required in connection with any qualificatior for distribution referred to in this Section 2. 2.8. No Transfer of Rights. The rights to cause BioChem to qualify for distribution securities granted to NAVA under Sections 2.2 and 2.3 are not assignable in connection with any transfer or assignment of Securities by NAVA o: otherwise. 2.9. Limitation on Injunctions. NAVA shall not have any right to obtain or seek an injunction restraining or otherwise delaying any distribution as the result of any controversy that might arise with respect to the interpretation or implementation of the provisions of this Section 2. EX-99.4.B 5 AMENDMENT TO SHARE PURCHASE AGREEMENT 1 EXHIBIT 4.B AMENDMENT TO SHARE PURCHASE AGREEMENT THIS AMENDMENT TO SHARE PURCHASE AGREEMENT (this "Amendment"), dated as of January 8, 1998 is entered into by and between North American Vaccine, Inc., a Canadian corporation, ("NAVA") and BioChem Pharma Inc., (successor to IAF BioChem International Inc.) a corporation organized under the laws of Canada ("BioChem"). RECITALS WHEREAS, NAVA and BioChem entered into a Share Purchase Agreement on January 17, 1990 (the "Share Purchase Agreement "); and WHEREAS, pursuant to Section 8.1 of the Share Purchase Agreement, NAVA granted to BioChem certain registration rights with respect to common shares, no par value, of NAVA ("Common Shares"), which registration rights were set forth in Schedule 4 to the Share Purchase Agreement; and WHEREAS, the parties entered into that certain Amendment to Share Purchase Agreement (the "First Amendment") dated June 20, 1994, whereby Schedule 4 to the Share Purchase Agreement was amended to, among other things, amend the demand registration right held by BioChem for its NAVA Common Shares; and WHEREAS, BioChem's one remaining demand registration right is scheduled to expire on January 17, 1998; and WHEREAS, the parties desire to extend the term of BioChem's one remaining demand registration right for its NAVA Common Shares for an additional three(3) years; and WHEREAS, the parties desire to set forth their agreements and understanding with respect to these matters. NOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: I. MODIFICATION AND AMENDMENT 1.1 Section 1.2(a)(vi) of Schedule 4 to the Share Purchase Agreement shall be and hereby is revised in its entirety to read as follows: "(vi) after January 17, 2001." II. MISCELLANEOUS 2 2.1 Except as set forth in this Amendment, all provisions of the Share Purchase Agreement, as amended by the First Amendment, shall remain in full force and effect without modification or amendment. Unless otherwise defined in this Amendment, all capitalized terms used herein shall be as defined in the Share Purchase Agreement, as amended. 2.2 This Amendment may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 2.3 This Amendment shall be deemed to have been made in the Province of Quebec and shall be interpreted in accordance with and governed by the laws of Quebec and the laws of Canada applicable therein. The parties hereto have requested that this Amendment and all agreements and documents related thereto be drafted in the English language. Les parties aux presentes ont exige que la presente convention et tout document accessoire soient redige en anglais seulement. 2.4 If any provision of this Amendment is held contrary to any federal, provincial, state or local law, the invalidity of such provision shall not affect any other provision of this Amendment, and the remaining provisions hereof shall continue in full force and effect and unmodified thereby. Any restriction or obligation contained herein which cannot be enforced to its full extent shall be enforced to the maximum extent permitted by law. IN WITNESS WHEREOF, the parties have caused this Amendment to Share Purchase Agreement to be executed by their duly authorized officers as of the day and year first above written. NORTH AMERICAN VACCINE, INC. By: /s/Daniel J. Abdun-Nabi ----------------------- Name: Daniel J. Abdun-Nabi -------------------- Title: Sr. Vice President-Legal Affairs -------------------------------- BIOCHEM PHARMA INC. By: /s/ Francois Legault -------------------- Name: Francois Legault ---------------- Title: Ex. V.P. Investments and Subsidiaries ------------------------------------- /s/ Charles A. Tessier Charles A. Tessier V.P. Legal & Sec. EX-99.5 6 LIST OF BIOCHEMS DIRECTORS 1 EXHIBIT 5 TO SCHEDULE 13-D AMENDMENT - NORTH AMERICAN VACCINE, INC. DIRECTORS AND OFFICERS OF BIOCHEM PHARMA INC.
BUSINESS OR PRINCIPAL RESIDENTIAL OCCUPATION OR NAME ADDRESS EMPLOYMENT COMPANY CITIZENSHIP =============================================================================================== Frederick J. 275 Armand- Chief Financial BioChem Pharma Canadian Andrew Frappier Officer Inc. Boulevard Laval, Quebec H7V 4A7 - ----------------------------------------------------------------------------------------------- Francesco Bellini, 275 Armand- Chief Executive BioChem Pharma Canadian Ph.D. Frappier Officer Inc. Boulevard Laval, Quebec H7V 4A7 - ----------------------------------------------------------------------------------------------- Bernard Canavan, 10700 Beach Road Retired Executive N/A American M.D. Suite 2 North Jupiter Island, Florida 33469 - ----------------------------------------------------------------------------------------------- Gervais Dionne, 275 Armand- Executive Vice BioChem Pharma Canadian Ph.D. Frappier President, Inc. Boulevard Research and Laval, Quebec Development H7V 4A7 - ----------------------------------------------------------------------------------------------- Jean-Louis 800 Rene- Chairman of the Bombardier Inc. Canadian Fontaine Levesque Board Boulevard West Vice President, 29th Floor Corporate Affairs Montreal, Quebec H3B 1Y8 - ----------------------------------------------------------------------------------------------- Jean-Francois 222 Berkeley General Partner Atlas Venture French Formela, M.D. Avenue Boston, Massachusetts 02116 - ----------------------------------------------------------------------------------------------- The Honorable 1155 Rene- Partner Stikeman, Elliott Canadian James A. Grant, Levesque P.C., Q.C. Boulevard West Montreal, Quebec H3B 3V2 - ----------------------------------------------------------------------------------------------- Roderick L. Henry 1800 McGill President Henrod Canadian College Avenue Investments Inc. Suite 2400 Montreal, Quebec H3A 3J6 - ----------------------------------------------------------------------------------------------- Jacques R. 275 Armand- President and BioChem Pharma Canadian Lapointe Frappier Chief Operating Inc. Boulevard Officer Laval, Quebec H7V 4A7 - -----------------------------------------------------------------------------------------------
2 2 Exhibit 5 Schedule 13D Amendment - North American Vaccine, Inc.
BUSINESS OR PRINCIPAL RESIDENTIAL OCCUPATION OR NAME ADDRESS EMPLOYMENT COMPANY CITIZENSHIP =============================================================================================== Francois Legault 275 Armand- Executive Vice BioChem Pharma Canadian Frappier President, Inc. Boulevard Investments and Laval, Quebec Subsidiaries H7V 4A7 - ----------------------------------------------------------------------------------------------- Guy Lord 275 Armand- Senior Vice BioChem Pharma Canadian Frappier President, Inc. Boulevard Corporate Affairs Laval, Quebec and Secretary H7V 4A7 - ----------------------------------------------------------------------------------------------- Michel Perron 2080 Rene- Chairman of the Somiper Inc. Canadian Levesque Board and Chief Boulevard West Executive Officer Montreal, Quebec H3H 1R6 - ----------------------------------------------------------------------------------------------- J. Robert S. Simcoe Hall -- President University of Canadian Prichard, Ph.D. Room 206 Toronto 27 King's College Circle Toronto, Ontario M5S 1A1 - ----------------------------------------------------------------------------------------------- Guy Savard 1250 Rene- Vice Chairman Merrill Lynch Canadian Levesque and Chairman Canada Inc. Boulevard West Quebec Operations Suite 3100 Montreal, Quebec H3B 4W8 - ----------------------------------------------------------------------------------------------- Charles A. Tessier 275 Armand- Vice President, BioChem Pharma Canadian Frappier Legal Affairs and Inc. Boulevard General Counsel Laval, Quebec H7V 4A7 - ----------------------------------------------------------------------------------------------- Gerard Veilleux 751, Square President Power Canadian Victoria Communications Montreal, Quebec Inc. H2Y 2J3 - -----------------------------------------------------------------------------------------------
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