UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 9)
ANORMED, INC.
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(Name of Issuer)
Common Stock, no par value per share
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(Title of Class of Securities)
035910108
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(CUSIP Number)
Leo Kirby
667 Madison Avenue, 17th Floor
New York, NY 10021
(212) 521-2418
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
October 17, 2006
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(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 that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box. [ ]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*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 (the "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).
SCHEDULE 13D
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CUSIP No. 035910108 Page 2 of 6 Pages
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1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Julian C. Baker
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X]
(b) [ ]
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3 SEC USE ONLY
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SOURCE OF FUNDS (See Instructions)
4
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
---------------------------- -------- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF -------- --------------------------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 9,411,500
EACH -------- --------------------------------------------------------------------------------
REPORTING SOLE DISPOSITIVE POWER
PERSON 9
WITH 0
-------- --------------------------------------------------------------------------------
SHARED DISPOSITIVE POWER
10
9,411,500
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,411,500
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
22.3%
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TYPE OF REPORTING PERSON (See Instructions)
14
IN
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SCHEDULE 13D
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CUSIP No. 035910108 Page 3 of 6 Pages
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1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Felix J. Baker
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [X]
(b) [ ]
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3 SEC USE ONLY
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SOURCE OF FUNDS (See Instructions)
4
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
---------------------------- -------- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
25,000
NUMBER OF -------- --------------------------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 9,411,500
EACH -------- --------------------------------------------------------------------------------
REPORTING SOLE DISPOSITIVE POWER
PERSON 9
WITH 25,000
-------- --------------------------------------------------------------------------------
SHARED DISPOSITIVE POWER
10
9,411,500
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,436,500
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
22.4%
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TYPE OF REPORTING PERSON (See Instructions)
14
IN
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This Amendment No. 9 to Schedule 13D is being filed by Julian C. Baker
and Felix J. Baker (the "Reporting Persons") to supplement the statement on
Schedule 13D previously filed by them, as heretofore amended and supplemented,
with respect to the common stock, no par value (the "Common Stock"), of AnorMED,
Inc. (the "Company"). Except as supplemented hereby, that statement remains in
full force and effect.
Item 4. Purpose of Transaction.
On October 17, 2006, the Company announced that it entered into a
support agreement with Genzyme Corporation ("Genzyme") under which Genzyme will
acquire all of the Common Stock of the Company in a cash tender offer at $13.50
per share. In connection therewith, the investment funds advised by the
Reporting Persons that own Common Stock entered into a Shareholder Support
Agreement with Genzyme, a copy of which is filed as Exhibit 2 hereto. The
investment funds agreed in the Shareholder Support Agreement that they would
tender the Common Stock owned by them to Genzyme within 5 days after Genzyme
mails its notice of variation and would not withdraw the shares tendered except
as otherwise permitted by such Agreement. The Shareholder Support Agreement is
subject to termination in certain circumstances by either party, including in
the event that a third party makes a bona fide written proposal for a
transaction that the investment funds determine to be a superior proposal (as
defined in the Shareholder Support Agreement). Accordingly, there can be no
assurance that the Genzyme tender offer will be successful. The Shareholder
Support Agreement with Millennium Pharmaceuticals, Inc. ("Millennium"), which
required the investment funds to tender their Common Stock to Millennium's offer
to acquire all of the outstanding Common Stock of the Company at $12.00 per
share, was terminated after Millennium failed to exercise its right to match the
offer by Genzyme.
Pending the outcome of the foregoing, the entities named in Item 5 are
continuing to hold the shares of Common Stock solely for investment. The
Reporting Persons will continue to review from time to time the investment
positions of these entities and may, depending on market and other conditions,
take any action that they consider to be in their best interests.
Item 7. Material To Be Filed as Exhibits.
Exhibit 1 Agreement regarding the joint filing of this statement.
Exhibit 2 Shareholder Support Agreement dated October 17, 2006 between
certain shareholders advised by the Reporting Persons, Genzyme
Corporation and Dematal Corp.
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.
October 20, 2006
By: /s/ Julian C. Baker
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Julian C. Baker
By: /s/ Felix J. Baker
------------------------------
Felix J. Baker
EXHIBIT 1
AGREEMENT
In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934,
as amended, the undersigned hereby agree that this Statement on Schedule 13D
relating to the Common Stock, no par value, of Anormed Inc. is being filed with
the Securities and Exchange Commission on behalf of each of them.
October 20, 2006
By: /s/ Julian C. Baker
------------------------------
Julian C. Baker
By: /s/ Felix J. Baker
------------------------------
Felix J. Baker
EXHIBIT 2
SHAREHOLDER SUPPORT AGREEMENT
THIS AGREEMENT is made as of the 17th day of October, 2006.
BETWEEN:
THE PERSONS NAMED ON SCHEDULE 4.1(B) HERETO,
(each such person a "Shareholder" and collectively, the
"Shareholders")
AND:
Genzyme Corporation, a corporation existing under the laws of
the Commonwealth of Massachusetts (the "Parent")
AND:
Dematal Corp., a Nova Scotia unlimited company (the "Offeror")
WHEREAS:
A. The Shareholders are the registered and the beneficial owners of
and/or control the disposition of shares in the capital of AnorMED
Inc. (the "Company"), as more particularly described herein;
B. The Shareholders understand that the Parent, the Offeror and the
Company are, concurrently with the execution and delivery of this
Agreement, executing and delivering the Support Agreement providing
for the Offer;
C. This Agreement sets out the terms and conditions of the several
agreement of each of the Shareholders (i) to tender its Shares or
cause the same to be tendered to the Offer and (ii) to abide by the
other restrictions and covenants set forth herein; and
D. Each of the Shareholders acknowledges that (i) the Parent and the
Offeror would not enter into the Support Agreement but for the
execution and delivery of this Agreement by the Shareholders, (ii)
it is a condition of the Offeror's obligation under the Support
Agreement to amend its Original Offer and make the Offer that the
Shareholders enter into this Agreement with the Parent and the
Offeror, and (iii) in entering into this Agreement, each of the
Shareholders acknowledge that it is not and should not be considered
to be acting jointly and in concert with the Parent and the Offeror
in making the Offer.
NOW THEREFORE this Agreement witnesses that, in consideration of the premises
and the covenants and agreements herein contained, the parties hereto agree as
follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this Agreement:
(a) "affiliate" has the meaning assigned to such term under the
Securities Act (British Columbia);
(b) "Alternative Transaction" shall have the meaning set forth in the
Support Agreement, and for the avoidance of doubt, shall include any
amendments or supplements to the tender offer commenced by
Millennium Pharmaceuticals, Inc. on October 5, 2006, to purchase all
outstanding common shares of the Company.
(c) "Shareholder's Shares" means, in respect of a Shareholder, (i) all
Shares beneficially owned by such Shareholder, or over which such
Shareholder exercises control or direction, on the date hereof,
including any Shares owned by such Shareholder that have been
deposited and not withdrawn to a tender offer by a third party and
(ii) any Shares that become beneficially owned by such Shareholder,
or over which such Shareholder acquires control or direction, after
the date hereof; and
(d) "Support Agreement" means the support agreement dated the date
hereof between the Parent, the Offeror and the Company, a true copy
of which has been delivered to the Shareholders simultaneously with
this Agreement being entered into.
1.2 Definitions in Support Agreement
All terms used in this Agreement that are not defined in Section 1.1
or elsewhere herein and that are defined in the Support Agreement shall have the
respective meanings ascribed to them in the Support Agreement.
1.3 Schedules
The following Schedule attached hereto constitutes an integral part
of this Agreement:
Schedule 4.1(b) -- Shareholders and Ownership of Shares
ARTICLE 2
COVENANTS OF THE OFFEROR
2.1 Offeror to Make Offer
The Offeror agrees with each Shareholder that it shall comply with the
terms of the Support Agreement and, without limiting the generality of the
foregoing, the Offeror shall amend its Original Offer to make or cause to be
made the Offer for US$13.50 per Share having the terms and conditions thereto
set forth in the Support Agreement and as required by the provisions of the
Support Agreement. In the event that another entity affiliated with the Offeror
makes the Offer in accordance with the terms and conditions of the Support
Agreement, the Offeror shall cause such other entity to become a party to this
Agreement, upon which such other entity shall become entitled to exercise all of
the rights of the Offeror and subject to all of the obligations of the Offeror
under this Agreement but the Offeror shall continue to be jointly and severally
liable for all such obligations.
2.2 Changes to Offer
The Offeror shall not, without the prior written consent of each
Shareholder, amend the Support Agreement or the Offer to: (i) vary or waive the
Minimum Condition; (ii) decrease the
consideration per Share; (iii) change the form of consideration payable under
the Offer (other than to add additional consideration, whether in the form of
cash or securities of the Parent or otherwise); (iv) decrease the number of
Shares in respect of which the Offer is made; (v) impose additional conditions
to the Offer; (vi) otherwise vary the Offer (or any terms or conditions thereof)
in a manner which is adverse to such Shareholder; or (vii) extend the period of
time for mailing the Notice of Variation, except as contemplated in section
2.1(c) of the Support Agreement.
ARTICLE 3
COVENANTS OF THE SHAREHOLDER
3.1 General
Each Shareholder hereby covenants and irrevocably agrees, on a
several basis, in favour of the Offeror that, from the date hereof until the
earlier of the termination of this Agreement in accordance with Article 5,
except as permitted by this Agreement, such Shareholder shall:
(a) not, and shall cause its general partners and their respective
directors, officers, employees, financial advisors, counsel, agents,
trustees, partners or other representatives not to, directly or
indirectly, (i) solicit, initiate or encourage any Alternative
Transaction (ii) participate in any discussions or negotiations with
any Person (other than the Offeror and its Subsidiaries and their
respective directors, officers, employees, agents, financial
advisors, counsel or other representatives) in respect of any
Alternative Transaction (other than to refer such Persons to the
provisions of this Agreement and the Support Agreement), (iii)
provide any confidential information relating to the Company or its
Subsidiaries to any Person in connection with any Alternative
Transaction or (iv) otherwise cooperate in any way with any effort
or attempt by any other person to do or seek to do any of the
foregoing, provided, however, that nothing contained in this section
or the other provisions of this agreement shall prevent such
Shareholder or a nominee or representative of such Shareholder, if a
director of the Company, from taking any actions solely in his or
her capacity as a member of the Board of Directors in respect of an
unsolicited bona fide Alternative Transaction under the terms and
conditions set out in the Support Agreement;
(b) immediately cease and cause to be terminated all existing
discussions and negotiations, if any, with any third party or any
agent or representative of any third party conducted before the date
of this Agreement with respect to any Alternative Transaction and
request the return or destruction of all confidential written
information provided in connection therewith;
(c) not release any third party from any confidentiality or standstill
agreement in respect of the Company that it is party to;
(d) promptly notify the Offeror of any Alternative Transaction, any bona
fide inquiry, proposal, discussions or negotiation with respect to
any Alternative Transaction of which such Shareholder or any of its
directors, officers, employees, representatives, agents, trustees or
partners becomes aware (and of which the Company or any of its
directors, officers, employees, representatives or agents is not
aware), except to the extent that such Shareholder has been advised
by its legal counsel that to do so would cause a breach of
its fiduciary duties to the Company or any of its Subsidiaries; such
notice will include, to the extent known to such Shareholder, the
material terms and conditions of such Alternative Transaction,
inquiry, proposal, discussion or negotiation. Such notice to the
Offeror shall be made forthwith orally and in writing and shall
indicate, to the extent known to such Shareholder, such details of
the proposal, inquiry or contact as the Offeror may reasonably
request, including the identity of the Person making such proposal,
inquiry or contact and the terms and conditions of such Alternative
Transaction, inquiry, proposal, discussion or negotiation;
(e) not option, sell, transfer, pledge, encumber, grant a security
interest in, hypothecate or otherwise convey any of its
Shareholder's Shares (or any right or interest therein (legal or
equitable)), to any Person or group or agree to do any of the
foregoing;
(f) not grant or agree to grant any proxy, power of attorney or other
right to vote its Shareholder's Shares, or enter into any voting
agreement, voting trust, vote pooling or other agreement with
respect to the right to vote, call meetings of shareholders or give
consents or approval of any kind with respect to any of its
Shareholder's Shares;
(g) not vote or cause to be voted any of its Shareholder's Shares in
respect of any proposed action by the Company or its shareholders or
affiliates or any other Person in a manner which would reasonably be
regarded as likely to prevent or delay the successful completion of
the Offer;
(h) not do indirectly that which it may not do directly in respect of
the restrictions on its rights with respect to its Shareholder's
Shares pursuant to this Section 3.1; and
(i) upon the Offeror taking up and paying for the Shares tendered by
such Shareholder and acquiring Shares representing at least a
majority of the then outstanding Shares, upon the written request of
the Offeror, such Shareholder will or will cause any nominee or
representative of such Shareholder who acts as a director of the
Company or any of its Subsidiaries to resign in an orderly manner
and to assist with the appointment of such person or persons
identified by the Offeror as a substitute director of the Company.
3.2 Deposit of the Shareholder's Shares under the Offer
Each Shareholder hereby agrees with the Offeror that it will, as
soon as practicable and in any event on or before the fifth calendar day
following the mailing of the Notice of Variation, cause all of its Shareholder's
Shares to be validly tendered in acceptance of the Offer together with the
letter of transmittal or, if applicable, notice of guaranteed delivery, and any
other documents required in accordance with the Offer, and will not withdraw its
Shareholder's Shares from the Offer except as expressly otherwise permitted
under this Agreement.
3.3 Co-operation/Substitute Transaction
If the Offeror concludes after the date of this Agreement that it is
necessary or desirable to proceed with a form of transaction other than the
Offer (including, without limitation, a plan of arrangement or amalgamation)
whereby the Offeror and/or its affiliates would effectively acquire all the
Shares on economic and other terms and conditions (including, without
limitation, tax treatment) having consequences to each Shareholder that are no
less favourable than those contemplated by this Agreement, as determined by such
Shareholder, acting reasonably (any such transaction is referred to as a
"Substitute Transaction"), each Shareholder agrees to support the completion of
the Substitute Transaction in the same manner as the Offer, including by voting
its Shareholder's Shares in favour of the Substitute Transaction.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Shareholder
Each Shareholder hereby represents and warrants to and covenants
with the Offeror, on a several basis, as follows, and acknowledges that the
Offeror is relying upon such representations, warranties and covenants in
entering into this Agreement:
(a) Incorporation and Authorization. Such Shareholder has all necessary
power, authority, capacity and right to enter into this Agreement
and to carry out each of its obligations under this Agreement. This
Agreement has been duly executed and delivered by such Shareholder
and constitutes a legal, valid and binding obligation of such
Shareholder enforceable against it in accordance with its terms,
subject to bankruptcy and insolvency and other laws affecting the
enforcement of creditors' rights generally and subject to the
qualification that equitable remedies may only be granted in the
discretion of a court of competent jurisdiction.
(b) Ownership of Shares and Other Securities. Such Shareholder is, and
will be immediately prior to the date hereof, the sole registered
and beneficial owner of its Shareholder's Shares shown opposite its
name as being beneficially owned in Schedule 4.1(b), with good and
marketable title thereto, free and clear of all Encumbrances, and
has full legal right, power and authority to enter into this
Agreement, to deposit, or to cause the deposit of, its Shareholder's
Shares under the Offer and to sell, or to cause the sale of, its
Shareholder's Shares to the Offeror pursuant to the Offer; upon
take-up of and payment for its Shareholder's Shares, such
Shareholder will have conveyed to the Offeror good and marketable
title to its beneficially owned Shareholder's Shares, free and clear
of any Encumbrances (excluding any Encumbrances that have been
granted by or that may be claimed in respect of the Offeror).
(c) No Conflicts. None of the execution and delivery of this Agreement
by such Shareholder, the consummation by such Shareholder of the
transactions contemplated hereby nor compliance by such Shareholder
with any of the provisions hereof will violate, conflict with, or
result in a breach of any provision of, require any consent,
approval or notice under, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a
default) or result in a right of termination or acceleration under,
any of the terms, conditions or provisions of: (i) the certificate
of incorporation, certificate of limited partnership, Articles or
by-laws or other constating documents of such Shareholder; or (ii)
any material Contract to which such Shareholder is a party; or (iii)
violate any judgment, ruling, order, writ, injunction, award,
decree, statute, ordinance, rule or regulation applicable to such
Shareholder.
(d) No Agreements. No Person has any agreement or option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or
transfer of any of its Shareholder's Shares, or any interest therein
or right thereto, except pursuant to this Agreement.
(e) Voting. None of its Shareholder's Shares is subject to any proxy,
power of attorney, voting agreement, voting trust, vote pooling or
other agreement with respect to the right to vote, call meetings of
shareholders or give consents or approvals of any kind.
(f) Consents. No consent, waiver, approval, authorization, exemption,
registration, licence or declaration of or by, or filing with, or
notification to any Government Authority which has not been made or
obtained is required to be made or obtained by such Shareholder in
connection with (i) the execution and delivery by such Shareholder
of this Agreement or the performance of its obligations hereunder,
or (ii) the consummation of any transactions by such Shareholder
provided for herein, except for, in either case, the filing of
reports under applicable securities legislation.
(g) Legal Proceedings. There are no legal proceedings in progress or
pending before any Government Authority or threatened against such
Shareholder or any of its affiliates that would adversely affect in
any manner the ability of such Shareholder to enter into this
Agreement and to perform its obligations hereunder or the title of
such Shareholder to any of its beneficially owned Shareholder's
Shares and there is no judgment, decree or order against such
Shareholder that would adversely affect in any manner the ability of
such Shareholder to enter into this Agreement and to perform its
obligations hereunder or the title of such Shareholder to any of its
beneficially owned Shareholder's Shares.
(h) Agreements with Company. Except as disclosed in the Company Reports
or as previously disclosed in writing to the Offeror, such
Shareholder is not a party to any Contract with the Company or any
of its Subsidiaries.
(i) Claims. Except as disclosed in the Company Reports or as previously
disclosed in writing to the Offeror, such Shareholder has no Claims
against the Company or any of its Subsidiaries as of the date hereof
and will not have any Claims against the Company or any of its
Subsidiaries by reason of entering into this Agreement.
The representations and warranties of each Shareholder set forth in
this Section 4.1 shall survive the completion of the purchase by the Offeror of
its Shareholder's Shares and despite such completion, shall continue in full
force and effect for the benefit of the Offeror.
4.2 Representations and Warranties of the Parent and the Offeror
The Parent and the Offeror hereby jointly and severally represent
and warrant to each Shareholder each of the representations and warranties of
the Parent and the Offeror contained in the Support Agreement, which are
incorporated herein by reference, and that:
(a) Incorporation. The Parent is a corporation duly incorporated and is
validly existing as a corporation in good standing under the laws of
the Commonwealth of Massachusetts. The Offeror is an unlimited
company duly incorporated and is validly existing as an unlimited
company in good standing under the laws of the Province of Nova
Scotia. Each of the Parent and the Offeror has the requisite
corporate power and authority to own the assets it currently owns
and to carry on its business as it is now being conducted.
(b) Power and Authority. Each of the Parent and the Offeror has the
requisite corporate power and authority to enter into this Agreement
and to carry out its obligations hereunder. This Agreement has been
duly executed and delivered by each of the Parent and the Offeror
and constitutes the legal, valid and binding obligation of each of
the Parent and the Offeror enforceable against each in accordance
with its terms, subject to bankruptcy and insolvency and other laws
affecting the enforcement of creditors' rights generally and subject
to the qualification that equitable remedies may only be granted in
the discretion of a court of competent jurisdiction.
(c) No Conflicts. None of the execution and delivery of this Agreement
by the Parent or the Offeror, the consummation by the Offeror of the
transactions contemplated hereby nor compliance by them with any of
the provisions hereof will violate, conflict with, or result in a
breach of any provision of, require any consent, approval or notice
under, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) or result in a
right of termination or acceleration under, any of the terms,
conditions or provisions of: (i) the certificate of incorporation or
by-laws of the Parent or the Offeror or their equivalent
organization or constitutional documents; or (ii) any material
Contract to which the Offeror, the Parent or any of the Parent's
Subsidiaries is a party; or (iii) subject to compliance with
applicable Laws as provided in the Support Agreement, violate any
judgment, ruling, order, writ, injunction, award, decree, statute,
ordinance, rule or regulation applicable to the Offeror, the Parent
or any of the Parent's Subsidiaries.
(d) Consents. No consent, waiver, approval, authorization, exemption,
registration, licence or declaration of or by, or filing with, or
notification to any Government Authority which has not been made or
obtained is required to be made or obtained by the Parent or the
Offeror in connection with (i) the execution and delivery by the
Parent or the Offeror of this Agreement or the performance by it of
its obligations hereunder, or (ii) the consummation of any
transactions by the Parent or the Offeror provided for herein,
except as provided in the Support Agreement.
(e) Legal Proceedings. There are no legal proceedings in progress or
pending before any Government Authority or threatened against the
Offeror or any of its affiliates that would adversely affect in any
manner the ability of the Parent or the Offeror to enter into this
Agreement and to perform its obligations hereunder and there is no
judgment, decree or order against the Parent or the Offeror that
would adversely affect in any manner the ability of the Parent or
the Offeror to enter into this Agreement and to perform its
obligations hereunder.
The representations and warranties of the Parent and the Offeror set
forth in this Section 4.2 shall survive the completion of the purchase by the
Offeror of the Shareholder's Shares of each Shareholder and despite such
completion, shall continue in full force and effect for the benefit of each
Shareholder.
ARTICLE 5
TERMINATION
5.1 Termination by the Parent and the Offeror
The Parent and the Offeror, when not in default in the performance
of their material obligations under this Agreement or the Support Agreement,
may, without prejudice to any of their rights hereunder and in their sole
discretion, terminate this Agreement (in respect of a Shareholder) by written
notice to such Shareholder if:
(a) any of the representations and warranties of such Shareholder under
this Agreement shall not be true and correct in all material
respects;
(b) such Shareholder shall not have complied with its material covenants
to the Parent and the Offeror contained in this Agreement;
(c) the Offeror shall not be required to make the Offer under the terms
and conditions of the Support Agreement;
(d) any condition to completion of the Offer, as set out in Schedule A
to the Support Agreement, is not satisfied or waived prior to the
Expiry Time; or
(e) the Support Agreement has been terminated in accordance with its
terms.
5.2 Termination by the Shareholder
Each Shareholder, when not in material default in the performance of
its obligations under this Agreement, may, without prejudice to any of its
rights hereunder and in its sole discretion, terminate this Agreement by written
notice to the Offeror if:
(a) any of the representations and warranties of the Parent or the
Offeror under this Agreement shall not be true and correct in all
material respects;
(b) either the Parent or the Offeror shall not have complied with its
material covenants to such Shareholder contained herein;
(c) the terms of the Offer do not conform with the provisions of the
Support Agreement;
(d) the Take-up Date has not occurred by December 22, 2006;
(e) the Offeror has not mailed the Notice of Variation within the time
period provided for in section 2.1 of the Support Agreement;
(f) the Support Agreement has been terminated in accordance with its
terms; or
(g) a bona fide written proposal is made for an Alternative Transaction
that is available to all holders of Shares on identical terms which,
if consummated in accordance with its terms, would result in a
transaction more favourable to such Shareholder from a financial
point of view than the Offer, as determined by such Shareholder,
acting reasonably (a "Superior Proposal"), and the Offeror does not
increase the consideration under the Offer to consideration at least
equivalent to the consideration under the Superior Proposal on or
prior to the earlier to occur of (i) the third Business Day after
the Shareholders or the Company, whichever is first, have advised
the Offeror that they or it, as applicable, consider such
Alternative Transaction to be a Superior Proposal, and (ii) the last
day on which such Shareholder can prudently withdraw the Shares it
has deposited under the Offer in order to tender, deposit or
otherwise deliver such Shares to the Person making the Superior
Proposal.
5.3 Agreement to Terminate
This Agreement, in respect of a Shareholder, may be terminated by a
written instrument executed by the Parent, the Offeror and such Shareholder.
5.4 Effect of Termination
If this Agreement is terminated in accordance with this Article 5,
subject to Section 5.5, the provisions of this Agreement will become null and
void and of no further force and effect and no party shall have liability to any
other party, except in respect of a breach of this Agreement which occurred
prior to such termination, and the Offeror shall no longer be required to make
or pursue the Offer and, if the Offer has been made, the Shareholder in respect
of which this Agreement is terminated shall be entitled to withdraw its
Shareholder's Shares from the Offer.
5.5 Automatic Termination
Subject to the survival of representations and warranties as
contemplated in Sections 4.1 and 4.2, this Agreement shall terminate
automatically in respect of a Shareholder immediately following the completion
of the purchase by the Offeror of the Shareholder's Shares of such Shareholder.
ARTICLE 6
GENERAL
6.1 Further Assurances
Each of the Shareholders, the Parent and the Offeror will, from time
to time, promptly execute and deliver all such further documents and instruments
and do all such acts and things as the other party may reasonably require to
effectively carry out or better evidence or perfect the full intent and meaning
of this Agreement.
6.2 Survival of Representations and Warranties
No investigations made by or on behalf of the Parent or the Offeror
or any of its authorized agents at any time shall have the effect of waiving,
diminishing the scope of or otherwise affecting any representation, warranty or
covenant made by any Shareholder herein or pursuant hereto.
6.3 Disclosure
Except as expressly contemplated herein or as required by applicable
Laws or by any Government Authority or Securities Authority, no party shall make
any public announcement or statement with respect to this Agreement or the
transactions contemplated herein without the approval of the other parties,
which approval shall not be unreasonably withheld or delayed. Each Shareholder
acknowledges that the Offeror and the Company are required by Law to disclose
the nature and substance of this Agreement in the Bid Circular and Directors'
Circular and a copy may be filed with applicable Securities Authorities. The
parties agree to consult with each other prior to issuing any public
announcement or statement with respect to this Agreement or the transactions
contemplated herein.
6.4 Singular, Plural, etc.
In this Agreement, words importing the singular number include the
plural and vice versa and words importing gender include the masculine, feminine
and neuter genders. Unless the context otherwise requires, any reference to a
"party" herein is a reference to a party hereto. Any references to "including"
or "includes" means "including (or includes) without limitation".
6.5 Deemed Currency
Unless otherwise expressly stated, all references to dollars, "$" or
currency herein shall be deemed to be references to U.S. currency.
6.6 Headings, etc.
The division of this Agreement into Articles, Sections and
Schedules, the provision of a table of contents hereto and the insertion of the
recitals and headings are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement and, unless otherwise
stated, all references in this Agreement or in the Schedules hereto to Articles,
Sections and Schedules refer to Articles, Sections and Schedules of and to this
Agreement or of the Schedules in which such reference is made, as applicable.
6.7 Date for any Action
In the event that any date on which any action is required to be
taken hereunder by any of the parties is not a Business Day, such action shall
be required to be taken on the next succeeding day which is a Business Day.
6.8 Governing Law
This Agreement shall be governed by and interpreted in accordance
with the laws of the Province of British Columbia and the laws of Canada
applicable therein.
6.9 Attornment
The parties hereby irrevocably and unconditionally consent to and
submit to the non-exclusive jurisdiction of the courts of the Province of
British Columbia for any actions, suits or proceedings arising out of or
relating to this Agreement or the matters contemplated hereby and further agree
that service of any process, summons, notice or document by single registered
mail to the addresses of the parties set forth in this Agreement shall be
effective service of process for any action, suit or proceeding brought against
either party in such court. The parties hereby irrevocably and unconditionally
waive any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement or the matters contemplated hereby in the courts
of the Province of British Columbia and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding so brought has been brought in an inconvenient
forum.
6.10 Entire Agreement
This Agreement, including the schedules hereto and the provisions of
the Support Agreement incorporated herein by reference, constitutes the entire
agreement and understanding between and among the parties hereto with respect to
the subject matter hereof and supersedes any prior agreement or understanding
with respect thereto.
6.11 Amendments
This Agreement may not be modified, amended, altered or
supplemented, except by written agreement executed by all of the parties hereto.
6.12 Notices
Any notice, consent, waiver, direction or other communication
required or permitted to be given under this Agreement by a party shall be in
writing and shall be given by delivery, or by facsimile transmission or by
delivery addressed to the party to which the notice is to be given at its
address for service herein. Any notice, consent, waiver, direction or other
communication
aforesaid shall, if delivered, be deemed to have been given and received on the
date on which it was delivered to the address provided herein (if a Business
Day, if not, then the next succeeding Business Day) and if sent by facsimile
transmission be deemed to have been given and received at the time of receipt
(if a Business Day, if not, then the next succeeding Business Day) unless
actually received after 4:00 p.m. (Vancouver time) at the point of delivery in
which case it shall be deemed to have been given and received on the next
Business Day. The address for service for each of the parties hereto shall be as
follows:
(a) if to the Shareholders:
Baker Brothers Investments
667 Madison Avene, 17th Floor
New York, NY 10021
Attention: Felix Baker
Fax No.: 212.521.2245
with a copy for information purposes but not as notice to:
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004-2498
Attention: Richard Howe
Fax No.: 212.558.3588
and to:
Davies Ward Phillips & Vineberg LLP
1 First Canadian Place, 44th Floor
Toronto, ON M5X 1B1
Attention: Berl Nadler and Peter Hong
Fax No.: 416.863.0871
(b) if to the Offeror or the Parent:
Genzyme Corporation
500 Kendall Street
Cambridge, MA 02142
Attention: Chief Legal Officer and Executive Vice President, Legal
and Corporate Development
Fax No.: 617.768.9594
with a copy for information purposes but not as notice to:
Ropes & Gray LLP
One International Place
Boston, MA 02110
Attention: Paul M. Kinsella
Fax No.: 617.951.7050
and to:
Osler, Hoskin & Harcourt LLP
Box 50, 1 First Canadian Place
Toronto, Ontario M5X 1B8
Attention: Clay Horner
Fax No.: 416.862.6666
6.13 Specific Performance and other Equitable Rights
It is recognized and acknowledged that a breach by any party of any
material obligations contained in this Agreement will cause the other party to
sustain injury for which it would not have an adequate remedy at law for money
damages. Accordingly, in the event of any such breach, any aggrieved party shall
be entitled to the remedy of specific performance of such obligations and
interlocutory, preliminary and permanent injunctive and other equitable relief
in addition to any other remedy to which it may be entitled, at law or in
equity.
6.14 Assignment
Except as expressly permitted by the terms hereof, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the Shareholders without the prior express written consent of
the Parent and the Offeror and by the Parent or the Offeror without the prior
express written consent of the Shareholders. Notwithstanding the foregoing
provisions of this Section 6.14, the Offeror may assign all or any part of its
rights or obligations under this Agreement to a direct or indirect wholly-owned
Subsidiary of the Offeror, to a corporation which directly or indirectly
wholly-owns the Offeror, or to a direct or indirect wholly-owned Subsidiary of
such a corporation, provided that any such assignment will have no adverse tax
or other effects to each Shareholder under the Offer, and provided further that
if such assignment takes place, the Offeror shall continue to be liable to the
Shareholders for any default in performance by the assignee.
6.15 Expenses
Each of the parties shall pay its respective legal, financial
advisory and accounting costs and expenses incurred in connection with the
preparation, execution and delivery of this Agreement and all documents and
instruments executed or prepared pursuant hereto and any other costs and
expenses whatsoever and howsoever incurred.
6.16 Severability
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable Law.
Any provision of this Agreement that is invalid or unenforceable in any
jurisdiction shall be ineffective only to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
provisions hereof, and any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
6.17 Counterpart Execution
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same agreement effective as of the date hereof.
6.18 Several Obligations of Shareholders
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same agreement effective as of the date hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first written above.
GENZYME CORPORATION
By:
-------------------------------------------------
Name: Peter Wirth
Title: Chief Legal Officer & Executive Vice
President, Legal & Corporate Development
DEMATAL CORP.
By:
-------------------------------------------------
Name: Peter Wirth
Title: Secretary & Director
BAKER BIOTECH FUND I, L.P.
By: Baker Biotech Capital, L.P., its general partner
By: Baker Biotech Capital (GP), LLC, its general partner
By:
-------------------------------------------------
Name: Felix Baker, Ph.D
Title: Managing Member
14159, L.P.
By: 14159 Capital, L.P., its general partner
By: 14159 Capital (GP), LLC, its general partner
By:
-------------------------------------------------
Name: Felix Baker, Ph.D
Title: Managing Member
BAKER BROTHERS LIFE SCIENCES, L.P.
By: Baker Brothers Life Sciences Capital, L.P., its
general partner
By: Baker Brothers Life Sciences Capital, (GP) LLC, its
general partner
By:
-------------------------------------------------
Name: Felix Baker, Ph.D
Title: Managing Member
BAKER/TISCH INVESTMENTS, L.P.
By: Baker/Tisch Capital, L.P., its general partner
By: Baker/Tisch Capital, (GP), LLC, its general partner
By:
-------------------------------------------------
Name: Felix Baker, Ph.D
Title: Managing Member
BAKER BROS. INVESTMENTS, L.P.
By: Baker Bros. Capital, L.P., its general partner
By: Baker Bros. Capital (GP), LLC, its general partner
By:
-------------------------------------------------
Name: Felix Baker, Ph.D
Title: Managing Member
BAKER BROS. INVESTMENTS II, L.P.
By: Baker Bros. Capital, L.P., its general partner
By: Baker Bros. Capital (GP), LLC, its general partner
By:
-------------------------------------------------
Name: Felix Baker, Ph.D
Title: Managing Member
Schedule 4.1(b) -- Shareholders and Ownership of Shares
Registered and Beneficial Owner Number and Class of Shares
Baker Bros. Investments, L.P. 330,058
Baker Bros. Investments II, L.P. 351,749
Baker Biotech Fund I, L.P. 3,604,520
14159, L.P. 83,137
Baker/Tisch Investments, L.P. 28,177
Baker Brothers Life Sciences, L.P. 5,013,859
TOTAL 9,411,500