As filed with the Securities and Exchange Commission on December 26, 2001
Registration No. 333-72866
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BioMarin Pharmaceutical Inc.
(Exact name of registrant as specified in its charter)
Delaware 68-0397820
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
371 Bel Marin Keys Boulevard, Suite 210
Novato, California 94949
(415) 884-6700
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Raymond W. Anderson
Chief Financial Officer
BioMarin Pharmaceutical Inc.
371 Bel Marin Keys Boulevard, Suite 210
Novato, California 94949
(415) 884-6700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Siobhan McBreen Burke
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California 90071-2371
(213) 683-6000
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434 under the Securities Act, please check the following box. |_|
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
================================================================================
SUBJECT TO COMPLETION DATED DECEMBER 26, 2001
PRELIMINARY PROSPECTUS
BIOMARIN
PHARMACEUTICAL
814,647 Shares of Common Stock
par value $.001
BioMarin Pharmaceutical Inc.
This prospectus relates to an aggregate of 814,647 shares of common stock of
BioMarin Pharmaceutical Inc. that may be offered for sale by three entities who
have acquired such shares in a private transaction. We have registered the
aggregate number of shares under the Securities Act of 1933 on behalf of these
stockholders so that they can sell them in a public offering or other
distribution. We will not receive any of the proceeds from the offer and sale of
the shares.
Our common stock currently trades on the Nasdaq National Market and the Swiss
SWX New Market under the symbol "BMRN."
See "Risk Factors" beginning on page 3 to read about risks that you should
consider before buying shares of our common stock.
Neither the Securities and Exchange Commission nor any other regulatory body has
approved or disapproved these securities or passed upon the adequacy or accuracy
of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is ________ __, 2001
TABLE OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION................................. 19
SUMMARY ............................................................. 1
FORWARD LOOKING STATEMENTS........................................... 3
RISK FACTORS......................................................... 3
USE OF PROCEEDS......................................................15
SELLING STOCKHOLDERS.................................................15
PLAN OF DISTRIBUTION.................................................17
LEGAL MATTERS........................................................19
EXPERTS..............................................................19
"BioMarin" and "Neutralase" are trademarks of BioMarin(TM). All other
trademarks or tradenames referred to in this prospectus are the
property of their respective owners.
As used in this prospectus, the terms "we," "us," "our," the "Company"
and "BioMarin" means BioMarin Pharmaceutical Inc. and its subsidiaries
(unless the context indicates a different meaning), and the term
"common stock" means our common stock, $.001 par value per share
SUMMARY
This prospectus contains forward looking statements which involve risks and
uncertainties. Our actual results could differ materially from those anticipated
in these forward looking statements as a result of certain factors appearing
under "Risk Factors" and elsewhere in this prospectus.
The following summary does not contain all the information that may be important
to you. You should read the entire prospectus, including the financial
statements and other information incorporated by reference in this prospectus,
before making an investment decision.
We develop enzyme therapies to treat serious, life-threatening, chronic genetic
diseases and other diseases and conditions. In September 1998, we established a
joint venture with Genzyme for the worldwide development and commercialization
of our lead drug product, Aldurazyme(TM), for the treatment of
mucopolysaccharidosis I or MPS I, a serious genetic disease. Aldurazyme has
received fast track designation for the treatment of the more severe forms of
MPS I. The U.S. Food and Drug Administration (FDA) has granted Aldurazyme for
the treatment of MPS I an orphan drug designation giving us exclusive rights to
market Aldurazyme to treat MPS I for seven years from the date of FDA approval
if Aldurazyme is the first product to be approved by the FDA for the treatment
of MPS I. In addition, the European Commission has designated Aldurazyme for the
treatment of MPS I as an orphan medical product in the European Community,
giving us similar market exclusivity in Europe for 10 years.
MPS I is a life-threatening genetic disease caused by the lack of a sufficient
quantity of the enzyme (alpha)-L-iduronidase, which affects about 3,400 patients
in developed countries, including approximately 1,000 in the United States and
Canada. Patients with MPS I have multiple debilitating symptoms resulting from
the buildup of carbohydrate residues in all tissues in the body. These symptoms
include delayed physical and mental growth, enlarged livers and spleens,
skeletal and joint deformities, airway obstruction, heart disease, reduced
endurance and pulmonary function, and impaired hearing and vision. Most children
with MPS I will die from complications associated with the disease before
adulthood.
Aldurazyme is a specific form of recombinant human (alpha)-L-iduronidase that
replaces a genetic deficiency of (alpha)-L-iduronidase in MPS I patients. In
April 1999, we completed a twelve-month patient evaluation for the initial
clinical trial of Aldurazyme. This trial treated and evaluated ten patients with
MPS I at six medical centers in the United States. The results of the trial were
presented at the American Society for Human Genetics in October 1999. Based on
data collected during the initial twelve-month evaluation period, Aldurazyme met
the primary endpoints set forth in the investigational new drug application. In
addition, Aldurazyme demonstrated efficacy according to various secondary
endpoints in each of the patients. We continue to collect data from the ongoing
treatment of the surviving original patients (two have died from causes
unrelated to our enzyme replacement therapy). We recently released the data from
the two-year follow-up evaluation, which continued to suggest the efficacy of
Aldurazyme.
In collaboration with Genzyme, we initiated a six-month Phase III clinical trial
of Aldurazyme in December 2000 with the intention to file a Biologics License
Application (BLA) with the FDA, pending the successful outcome of the Phase III
trial. The treatment phase of this trial was completed in August 2001 and, in
accordance with the trial protocol, we released the preliminary results of this
trial in November 2001. Patients were evaluated at defined intervals to assess
progress in meeting two primary endpoints. The preliminary data analysis showed
an increase in pulmonary capacity and demonstrated a positive trend in
endurance, as measured by a six minute walk test. Based on the results of the
trial, we plan to meet with U.S., Canadian, and European regulatory authorities
in early 2002 to discuss applications to market Aldurazyme.
In August 2000, our Galli Drive manufacturing facility and a smaller clinical
manufacturing facility in our Bel Marin Keys Boulevard facility were both
subjected to an extensive inspection by the State of California Food and Drug
Branch and were granted licenses to produce clinical product.
We submitted an Investigational New Drug Application for recombinant human
N-acetylgalactosamine-4-sulfatase also known as arylsulfatase B or rhASB and
received FDA acceptance to begin a Phase I clinical trial in enzyme replacement
therapy for MPS VI, which was initiated on October 11, 2000. We released the
results of this trial in September 2001. The trial met its primary objective of
demonstrating the safety of treatment with rhASB. rhASB was well tolerated by
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all of the patients and there were no drug-related serious adverse events during
the study. Additionally, the trial demonstrated the efficacy of rhASB based on
various secondary endpoints. Based upon the clinical data to date, we expect to
initiate a Phase II of rhASB early in 2002.
MPS VI, also known as Maroteaux-Lamy syndrome, is similar in its clinical
symptoms to MPS I. However, MPS VI does not appear to have the central nervous
system involvement and mental retardation characteristics of the most severe
form of MPS I. We are manufacturing clinical bulk rhASB in our Bel Marin Keys
Boulevard clinical manufacturing facility. rhASB for the treatment of MPS VI has
received fast track and orphan drug designations from the FDA. In addition, the
European Commission has designated rhASB for the treatment of MPS VI as an
orphan medical product in the European Community.
We have successfully conducted preclinical studies of our burn enzyme,
Vibriolysin Topical, for use in burn debridement and grafting in pigs and mice.
In June 2001, we filed a Clinical Trial Exemption application with the Medicines
Control Agency in the United Kingdom for permission to begin a clinical trial
for Vibriolysin Topical. In the fourth quarter of 2001, we began a Phase I
clinical trial of Vibriolysin in the United Kingdom and we expect to begin a
Phase II clinical trial in either the United States or the United Kingdom
following completion of this Phase I trial.
On October 31, 2001 we completed the acquisition of the pharmaceutical assets of
IBEX Technologies Inc. and its subsidiaries. These assets include the
development programs related to IBEX's two lead product candidates,
Neutralase(TM) and Phenylase. Neutralase is an injectable heparinase that
reverses the anti-coagulation effects in blood of heparin. Phenylase is an
orally active enzyme with the potential to treat phenylketonuria (PKU), a
genetic disease affecting approximately 50,000 patients in North America and
Europe. Phenylase is currently in a preclinical development stage.
Neutralase is a carbohydrate-modifying enzyme that cleaves heparin in a manner
similar to the action of Aldurazyme and rhASB on specific glycosaminoglycan
(carbohydrate) structures. There are approximately 550,000 coronary artery
bypass graft procedures and 925,000 angioplasties in the United States in 1998
(as published by the American Heart Association in their 2001 Heart and Stroke
Statistical Update) that could potentially benefit from heparin reversal with
Neutralase. We believe that Neutralase may have several benefits over the only
current commercially available heparin reversal product, protamine, in that
Neutralase has demonstrated a lower occurrence of associated adverse effects in
the clinical trials conducted to date. Also, we believe, based on initial
laboratory testing, that Neutralase, unlike protamine, may be effective in
reversing the anti-coagulant effects of low molecular weight heparins and a new
pentasaccharide drug, currently under development. We expect to initiate a Phase
III clinical trial of Neutralase for use in coronary artery bypass graft surgery
in 2002, followed by a Phase IIB trial for angioplasty.
Our principal executive offices are located at 371 Bel Marin Keys Boulevard,
Suite 210, Novato, CA 94949 and our telephone number is (415) 884-6700.
Information contained in our website, www.biomarinpharm.com, is not part of this
prospectus.
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FORWARD LOOKING STATEMENTS
This prospectus contains forward looking statements. These statements relate to
future events or our future financial performance. We have identified forward
looking statements in this prospectus using words such as "anticipates",
"believes," "could," "estimates," "expects," "intends," "may," "plans,"
"potential," "predicts," "should," or "will" or the negative of such terms or
other comparable terminology. These statements are based on our beliefs as well
as assumptions we made using information currently available to us. Because
these statements reflect our current views concerning future events, these
statements involve risks, uncertainties, and assumptions. These risks,
uncertainties, assumptions and other factors, including the risks outlined under
"Risk Factors," that may cause our or our industry's actual results, levels of
activity, performance or achievements to be materially different from future
results, levels of actual activity, performance or achievements expressed or
implied by such forward looking statements.
Although we believe that the expectations reflected in the forward looking
statements are reasonable, we cannot guarantee future results, levels of
activity, performance or achievements. Moreover, neither we nor any other person
assumes responsibility for the accuracy and completeness of such statements. We
are under no duty to update any of the forward looking statements after the date
of this prospectus to conform such statements to actual results, unless required
by law.
RISK FACTORS
An investment in our common stock involves a high degree of risk. we operate in
a dynamic and rapidly changing industry that involves numerous risks and
uncertainties. before purchasing these securities, you should carefully consider
the following risk factors, as well as other information contained in this
prospectus or incorporated by reference into this prospectus, to evaluate an
investment in the securities offered by this prospectus. the risks and
uncertainties described below are not the only ones we face. other risks and
uncertainties, including those that we do not currently consider material, may
impair our business. if any of the risks discussed below actually occur, our
business, financial condition, operating results or cash flows could be
materially adversely affected. this could cause the trading price of our common
stock to decline, and you may lose all or part of your investment.
If we continue to incur operating losses for a period longer than anticipated,
we may be unable to continue our operations at planned levels and be forced to
reduce or discontinue operations.
We are in an early stage of development and have operated at a net loss since we
were formed. Since we began operations in March 1997, we have been engaged
primarily in research and development. We have no sales revenues from any of our
product candidates. As of September 30, 2001, we had an accumulated deficit of
approximately $113 million. We expect to continue to operate at a net loss for
the foreseeable future. Our future profitability depends on our receiving
regulatory approval of our product candidates and our ability to successfully
manufacture and market any approved drugs, either by ourselves or jointly with
others. The extent of our future losses and the timing of profitability are
highly uncertain. If we fail to become profitable or are unable to sustain
profitability on a continuing basis, then we may be unable to continue our
operations.
If we fail to obtain the capital necessary to fund our operations, we will be
unable to complete our product development programs.
In the future, we may need to raise substantial additional capital to fund
operations. We cannot be certain that any financing will be available when
needed. If we fail to raise additional financing as we need it, we will have to
delay or terminate some or all of our product development programs.
We expect to continue to spend substantial amounts of capital for our operations
for the foreseeable future. The amount of capital we will need depends on many
factors, including:
o the progress, timing and scope of our preclinical studies and
clinical trials;
o the time and cost necessary to obtain regulatory approvals;
-3-
o the time and cost necessary to develop commercial manufacturing
processes, including quality systems and to build or acquire
manufacturing capabilities;
o the time and cost necessary to respond to technological and
market developments; and
o Any changes made or new developments in our existing
collaborative, licensing and other commercial relationships or
any new collaborative, licensing and other commercial
relationships that we may establish.
Moreover, our fixed expenses such as rent, license payments and other
contractual commitments are substantial and will increase in the future. These
fixed expenses will increase because we may enter into:
o additional leases for new facilities and capital equipment;
o additional licenses and collaborative agreements;
o additional contracts for consulting, maintenance and
administrative services; and
o additional contracts for product manufacturing.
We believe that our cash, cash equivalents and short term investment securities
balances at September 30, 2001 will be sufficient to meet our operating and
capital requirements at least through the next 12 months. Additionally, since
September 30, 2001, we have completed a public offering of our common stock,
which raised net proceeds of approximately $90.4 million. We expect that these
proceeds will be sufficient to meet our operating and capital requirements for
at least an additional 12 months. These estimates are based on assumptions
and estimates, which may prove to be wrong. As a result, we may need or choose
to obtain additional financing during that time.
If we fail to obtain regulatory approval to commercially manufacture or sell any
of our future drug products, or if approval is delayed, we will be unable to
generate revenue from the sale of our products.
We must obtain regulatory approval before marketing or selling our drug products
in the U.S. and in foreign jurisdictions. In the United States, we must obtain
FDA approval for each drug that we intend to commercialize. The FDA approval
process is typically lengthy and expensive, and approval is never certain.
Products distributed abroad are also subject to foreign government regulation.
None of our drug products has received regulatory approval to be commercially
marketed and sold. If we fail to obtain regulatory approval, we will be unable
to market and sell our drug products. Because of the risks and uncertainties in
biopharmaceutical development, our drug products could take a significantly
longer time to gain regulatory approval than we expect or may never gain
approval. If regulatory approval is delayed, our management's credibility, the
value of our company and our operating results will be adversely affected.
To obtain regulatory approval to market our products, preclinical studies and
costly and lengthy clinical trials will be required, and the results of the
studies and trials are highly uncertain.
As part of the regulatory approval process, we must conduct, at our own expense,
preclinical studies in the laboratory on animals and clinical trials on humans
for each drug product. We expect the number of preclinical studies and clinical
trials that the regulatory authorities will require will vary depending on the
drug product, the disease or condition the drug is being developed to address
and regulations applicable to the particular drug. We may need to perform
multiple preclinical studies using various doses and formulations before we can
begin clinical trials, which could result in delays in our ability to market any
of our drug products. Furthermore, even if we obtain favorable results in
preclinical studies on animals, the results in humans may be significantly
different.
After we have conducted preclinical studies in animals, we must demonstrate that
our drug products are safe and efficacious for use on the target human patients
in order to receive regulatory approval for commercial sale. Adverse or
inconclusive clinical results would stop us from filing for regulatory approval
of our drug products. Additional factors that can cause delay or termination of
our clinical trials include:
o slow or insufficient patient enrollment;
o slow recruitment of, and completion of necessary institutional
approvals at, clinical sites;
o longer treatment time required to demonstrate efficacy;
-4-
o lack of sufficient supplies of the product candidate;
o adverse medical events or side effects in treated patients;
o lack of effectiveness of the product candidate being tested; and
o regulatory requests for additional clinical trials.
Typically, if a drug product is intended to treat a chronic disease, as is the
case with most of the product candidates we are developing, safety and efficacy
data must be gathered over an extended period of time, which can range from six
months to three years or more.
In April 1999, we completed a twelve month patient evaluation for the initial
clinical trial of our lead drug product, Aldurazyme, for the treatment of MPS I.
Two of the original ten patients enrolled in this trial died in 2000. One of
these patients received 103 weeks of Aldurazyme treatment and the other received
127 weeks of treatment. Based on medical data collected from clinical
investigative sites, neither case directly implicated treatment with Aldurazyme
as the cause of death. If cases of patient complications or death are ultimately
attributed to Aldurazyme, our chances of commercializing this drug would be
seriously compromised.
The fast track designation for our product candidates may not actually lead to a
faster review process.
Although Aldurazyme and rhASB have obtained fast track designations, we cannot
guarantee a faster review process or faster approval compared to the normal FDA
procedures.
We will not be able to sell our products if we fail to comply with manufacturing
regulations.
Before we can begin commercial manufacture of our products, we must obtain
regulatory approval of our manufacturing facility and process. In addition,
manufacture of our drug products must comply with the FDA's current Good
Manufacturing Practices regulations, commonly known as cGMP. The cGMP
regulations govern quality control and documentation policies and procedures.
Our manufacturing facilities are continuously subject to inspection by the FDA,
the State of California and foreign regulatory authorities, before and after
product approval. Our Galli Drive and our Bel Marin Keys Boulevard manufacturing
facilities have been inspected and licensed by the State of California for
clinical pharmaceutical manufacture. We cannot guarantee that these facilities
will pass federal or international regulatory inspection. We cannot guarantee
that we, or any potential third party manufacturer of our drug products, will be
able to comply with cGMP regulations.
We must pass Federal, state and European regulatory inspections, and we must
manufacture three process qualification batches (five process qualification
batches for Europe) to final specifications under cGMP controls for each of our
drug products before the marketing applications can be approved. Although we
have completed process qualification batches for Aldurazyme, these batches may
be rejected by the regulatory authorities, and we may be unable to manufacture
the process qualification batches for our other products or pass the inspections
in a timely manner, if at all.
If we fail to obtain orphan drug exclusivity for some of our products, our
competitors may sell products to treat the same conditions and our revenues will
be reduced.
As part of our business strategy, we intend to develop drugs that may be
eligible for FDA and European Community orphan drug designation. Under the
Orphan Drug Act, the FDA may designate a product as an orphan drug if it is a
drug intended to treat a rare disease or condition, defined as a patient
population of less than 200,000 in the United States. The company that first
obtains FDA approval for a designated orphan drug for a given rare disease
receives marketing exclusivity for use of that drug for the stated condition for
a period of seven years. However, different drugs can be approved for the same
condition. Similar regulations are available in the European Community with a
ten year period of market exclusivity.
Because the extent and scope of patent protection for our drug products is
limited, orphan drug designation is particularly important for our products that
are eligible for orphan drug designation. We plan to rely on the exclusivity
period under the orphan drug designation to maintain a competitive position. If
we do not obtain orphan drug exclusivity for our drug products, which do not
have patent protection, our competitors may then sell the same drug to treat the
same condition.
-5-
Even though we have obtained orphan drug designation for certain of our product
candidates and even if we obtain orphan drug designation for other products we
develop, we cannot guarantee that we will be the first to obtain marketing
approval for any orphan indication or, if we do, that exclusivity would
effectively protect the product from competition. Orphan drug designation
neither shortens the development time or regulatory review time of a drug nor
gives the drug any advantage in the regulatory review or approval process.
Because the target patient populations for some of our products are small, we
must achieve significant market share and obtain high per-patient prices for our
products to achieve profitability.
Two of our lead drug candidates, Aldurazyme and rhASB, target diseases with
small patient populations. As a result, our per-patient prices must be
relatively high in order to recover our development costs and achieve
profitability. Aldurazyme targets patients with MPS I and rhASB targets patients
with MPS VI. We estimate that there are approximately 3,400 patients with MPS I
and 1,100 patients with MPS VI in the developed world. We believe that we will
need to market worldwide to achieve significant market share. In addition, we
are developing other drug candidates to treat conditions, such as other genetic
diseases and serious burn wounds, with small patient populations. We cannot be
certain that we will be able to obtain sufficient market share for our drug
products at a price high enough to justify our product development efforts.
If we fail to obtain an adequate level of reimbursement for our drug products by
third-party payers, there would be no commercially viable markets for our
products.
The course of treatment for patients with MPS I using Aldurazyme and for
patients with MPS VI using rhASB is expected to be expensive. We expect patients
to need treatment throughout their lifetimes. We expect that most families of
patients will not be capable of paying for this treatment themselves. There will
be no commercially viable market for Aldurazyme or rhASB without reimbursement
from third-party payers.
Third-party payers, such as government or private health care insurers,
carefully review and increasingly challenge the prices charged for drugs.
Reimbursement rates from private companies vary depending on the third-party
payer, the insurance plan and other factors. Reimbursement systems in
international markets vary significantly by country and by region, and
reimbursement approvals must be obtained on a country-by-country basis. We
cannot be certain that third-party payers will pay for the costs of our drugs.
Even if we are able to obtain reimbursement from third-party payers, we cannot
be certain that reimbursement rates will be enough to allow us to profit from
sales of our drugs or to justify our product development expenses.
We currently have no expertise obtaining reimbursement. We expect to rely on the
expertise of our joint venture partner Genzyme to obtain reimbursement for the
costs of Aldurazyme. We cannot predict what the reimbursement rates will be. In
addition, we will need to develop our own reimbursement expertise for future
drug candidates unless we enter into collaborations with other companies with
the necessary expertise.
We expect that, in the future, reimbursement will be increasingly restricted
both in the United States and internationally. The escalating cost of health
care has led to increased pressure on the health care industry to reduce costs.
Governmental and private third-party payers have proposed health care reforms
and cost reductions. A number of federal and state proposals to control the cost
of health care, including the cost of drug treatments have been made in the
United States. In some foreign markets, the government controls the pricing
which would affect the profitability of drugs. Current government regulations
and possible future legislation regarding health care may affect our future
revenues from sales of our drugs and may adversely affect our business and
prospects.
If we are unable to protect our proprietary technology, we may not be able to
compete as effectively.
Where appropriate, we seek patent protection for certain aspects of our
technology. Patent protection may not be available for some of the enzymes we
are developing. If we must spend significant time and money protecting our
patents, designing around patents held by others or licensing, for large fees,
patents or other proprietary rights held by others, our business and financial
prospects may be harmed.
-6-
The patent positions of biotechnology products are complex and uncertain. The
scope and extent of patent protection for some of our products are particularly
uncertain because key information on some of the enzymes we are developing has
existed in the public domain for many years. Other parties have published the
structure of the enzymes, the methods for purifying or producing the enzymes or
the methods of treatment. The composition and genetic sequences of animal and/or
human versions of many of our enzymes have been published and are believed to be
in the public domain. The composition and genetic sequences of other MPS enzymes
that we intend to develop as products have also been published. Publication of
this information may prevent us from obtaining composition-of-matter patents,
which are generally believed to offer the strongest patent protection. For
enzymes with no prospect of broad composition-of-matter patents, other forms of
patent protection or orphan drug status may provide us with a competitive
advantage. As a result of these uncertainties, investors should not rely on
patents as a means of protecting our product candidates, including Aldurazyme.
We own or license patents and patent applications to certain of our product
candidates. However, these patents and patent applications do not ensure the
protection of our intellectual property for a number of other reasons, including
the following:
o We do not know whether our patent applications will
result in issued patents. For example, we may not have
developed a method for treating a disease before others
developed similar methods.
o Competitors may interfere with our patent process in
a variety of ways. Competitors may claim that they invented
the claimed invention prior to us. Competitors may also claim
that we are infringing on their patents and therefore cannot
practice our technology as claimed under our patent.
Competitors may also contest our patents by showing the patent
examiner that the invention was not original, was not novel or
was obvious. In litigation, a competitor could claim that our
issued patents are not valid for a number of reasons. If a
court agrees, we would lose that patent. As a company, we have
no meaningful experience with competitors interfering with our
patents or patent applications.
o Enforcing patents is expensive and may absorb
significant time of our management. Management would spend
less time and resources on developing products, which could
increase our research and development expense and delay
product programs.
o Receipt of a patent may not provide much practical
protection. If we receive a patent with a narrow scope, then
it will be easier for competitors to design products that do
not infringe on our patent.
In addition, competitors also seek patent protection for their technology. There
are many patents in our field of technology, and we cannot guarantee that we do
not infringe on those patents or that we will not infringe on patents granted in
the future. If a patent holder believes our product infringes on their patent,
the patent holder may sue us even if we have received patent protection for our
technology. If someone else claims we infringe on their technology, we would
face a number of issues, including the following:
o Defending a lawsuit takes significant time and can be very
expensive.
o If the court decides that our product infringes on
the competitor's patent, we may have to pay substantial
damages for past infringement.
o The court may prohibit us from selling or licensing
the product unless the patent holder licenses the patent to
us. The patent holder is not required to grant us a license.
If a license is available, we may have to pay substantial
royalties or grant crosslicenses to our patents.
o Redesigning our product so it does not infringe may not be
possible or could require substantial funds and time.
It is also unclear whether our trade secrets will provide useful protection.
While we use reasonable efforts to protect our trade secrets, our employees or
consultants may unintentionally or willfully disclose our information to
competitors. Enforcing a claim that someone else illegally obtained and is using
-7-
our trade secrets, like patent litigation, is expensive and time consuming, and
the outcome is unpredictable. In addition, courts outside the United States are
sometimes less willing to protect trade secrets. Our competitors may
independently develop equivalent knowledge, methods and knowhow.
We may also support and collaborate in research conducted by government
organizations or by universities. We cannot guarantee that we will be able to
acquire any exclusive rights to technology or products derived from these
collaborations. If we do not obtain required licenses or rights, we could
encounter delays in product development while we attempt to design around other
patents or even be prohibited from developing, manufacturing or selling products
requiring these licenses. There is also a risk that disputes may arise as to the
rights to technology or products developed in collaboration with other parties.
The United States Patent and Trademark Office recently issued two patents that
relate to (alpha)-L-iduronidase. If we are not able to successfully challenge
these patents, we may be prevented from producing Aldurazyme unless and until we
obtain a license.
The United States Patent and Trademark Office recently issued two patents that
include composition of matter and method of use claims for recombinant
(alpha)-L-iduronidase. Our lead drug product, Aldurazyme, is based on
recombinant (alpha)-L-iduronidase. We believe that these patents are invalid on
a number of grounds. A corresponding patent application was filed in the
European Patent Office claiming composition of matter for recombinant
(alpha)-L-iduronidase, and it was rejected over prior art and withdrawn and
cannot be re-filed. Nonetheless, under U.S. law, issued patents are entitled to
a presumption of validity, and our challenges to the U.S. patents may be
unsuccessful. Even if we are successful, challenging the U.S. patents may be
expensive, require our management to devote significant time to this effort and
may delay commercialization of Aldurazyme in the United States.
The patent holder has granted an exclusive license for products relating to
these patents to one of our competitors. If we are unable to successfully
challenge the patents, we may be unable to produce Aldurazyme in the United
States unless we can obtain a sublicense from the current licensee. The current
licensee is not required to grant us a license and even if a license is
available, we may have to pay substantial license fees, which could adversely
affect our business and operating results.
If our joint venture with Genzyme were terminated, we could be barred from
commercializing Aldurazyme or our ability to commercialize Aldurazyme would be
delayed or diminished.
We are relying on Genzyme to apply the expertise it has developed through the
launch and sale of other enzyme-based products to the marketing of our initial
drug product, Aldurazyme. Because it is our initial product, our operations are
substantially dependent upon the development of Aldurazyme. We have no
experience selling, marketing or obtaining reimbursement for pharmaceutical
products. In addition, without Genzyme we would be required to pursue foreign
regulatory approvals. We have no experience in seeking foreign regulatory
approvals.
We cannot guarantee that Genzyme will devote the resources necessary to
successfully market Aldurazyme. In addition, either party may terminate the
joint venture for specified reasons, including if the other party is in material
breach of the agreement or has experienced a change of control or has declared
bankruptcy and also is in breach of the agreement. Either party may also
terminate the agreement upon one-year prior written notice for any reason.
Furthermore, we may terminate the joint venture if Genzyme fails to fulfill its
contractual obligation to pay us $12.1 million in cash upon the approval of the
BLA for Aldurazyme.
If the joint venture is terminated for breach, the non-breaching party would be
granted, exclusively, all of the rights to Aldurazyme and any related
intellectual property and regulatory approvals and would be obligated to buy out
the breaching party's interest in the joint venture. If we are the breaching
party, we would lose our rights to Aldurazyme and the related intellectual
property and regulatory approvals. If the joint venture is terminated without
cause, the non-terminating party would have the option, exercisable for one
year, to buy out the terminating party's interest in the joint venture and
obtain all rights to Aldurazyme exclusively. In the event of termination of the
buy out option without exercise by the non-terminating party as described above,
all right and title to Aldurazyme is to be sold to the highest bidder, with the
proceeds to be split equally between Genzyme and us.
-8-
If the joint venture is terminated by either party because the other declared
bankruptcy and is also in breach of the agreement, the terminating party would
be obligated to buy out the other and would obtain all rights to Aldurazyme
exclusively. If the joint venture is terminated by a party because the other
party experienced a change of control, the terminating party shall notify the
other party, the offeree, of its intent to buy out the offeree's interest in the
joint venture for a stated amount set by the terminating party at its
discretion. The offeree must then either accept this offer or agree to buy the
terminating party's interest in the joint venture on those same terms. The party
who buys out the other would then have exclusive rights to Aldurazyme.
If we were obligated, or given the option, to buy out Genzyme's interest in the
joint venture, and gain exclusive rights to Aldurazyme, we may not have
sufficient funds to do so and we may not be able to obtain the financing to do
so. If we fail to buy out Genzyme's interest we may be held in breach of the
agreement and may lose any claim to the rights to Aldurazyme and the related
intellectual property and regulatory approvals. We would then effectively be
prohibited from developing and commercializing the product.
Termination of the joint venture in which we retain the rights to Aldurazyme
could cause us significant delays in product launch in the United States,
difficulties in obtaining third-party reimbursement and delays or failure to
obtain foreign regulatory approval, any of which could hurt our business and
results of operations. Since Genzyme funds 50% of the joint venture's operating
expenses, the termination of the joint venture would double our financial burden
and reduce the funds available to us for other product programs.
If we are unable to manufacture our drug products in sufficient quantities and
at acceptable cost, we may be unable to meet demand for our products and lose
potential revenues or have reduced margins.
With the exception of Aldurazyme, we have no experience manufacturing drug
products in volumes that will be necessary to support commercial sales. Our
manufacturing processes may not meet initial expectations as to schedule,
reproducibility, yields, purity, costs, quality, and other measurements of
performance. Improvements in manufacturing processes typically are very
difficult to achieve and are often very expensive. We cannot know with certainty
how long it might take to make improvements if it became necessary to do so. If
we contract for manufacturing services with an unproven process, our contractor
is subject to the same uncertainties, high standards and regulatory controls.
The manufacture of Neutralase involves the fermentation of a bacterial species.
We have never used a bacterial production process for the production of any
clinical or commercial production. IBEX contracted with a third party for the
manufacture of the Neutralase used in prior clinical trials.
The availability of suitable contract manufacturing at scheduled or optimum
times is not certain. The cost of contract manufacturing is greater than
internal manufacturing and therefore our manufacturing processes must be of
higher productivity to yield equivalent margins.
If we are unable to establish and maintain commercial scale manufacturing within
our planned time and cost parameters, sales of our products and our financial
performance will be adversely affected.
Although we have successfully manufactured Aldurazyme at commercial scale within
our cost parameters, we cannot guarantee that we will be able to manufacture any
other drug product successfully with a commercially viable process or at a scale
large enough to support their respective commercial markets or at acceptable
margins.
We may encounter problems with any of the following if we attempt to increase
the scale or size or improve the commercial viability of our manufacturing
processes:
o design, construction and qualification of manufacturing
facilities that meet regulatory requirements;
o production yields;
o purity;
o quality control and assurance systems;
-9-
o shortages of qualified personnel; and
o compliance with regulatory requirements.
We have built-out approximately 67,000 square feet at our Novato facilities for
manufacturing capability for Aldurazyme and rhASB including related quality
control laboratories, materials capabilities, and support areas. We expect to
complete an expansion of the Galli Drive facility in the fourth quarter of 2001
and possibly add additional capabilities in stages over time, which create
additional operational complexity and challenges. We expect that the
manufacturing process of all of our new drug products, including rhASB and
Neutralase, will require significant time and resources before we can begin to
manufacture them (or have them manufactured by third parties) in commercial
quantity at acceptable cost. Even if we can establish the necessary capacity, we
cannot be certain that manufacturing costs will be commercially reasonable,
especially if contract manufacturing is employed or if third-party reimbursement
is substantially lower than expected.
In order to achieve our product cost targets we must develop efficient
manufacturing processes either by:
o improving the product yield from our current cell lines,
colonies of cells which have a common genetic makeup;
o improving the manufacturing processes licensed from others; or
o developing more efficient, lower cost recombinant cell lines and
production processes.
A recombinant cell line is a cell line with foreign DNA inserted that is used to
produce an enzyme or other protein that it would not have otherwise produced.
The development of a stable, high production cell line for any given enzyme is
difficult, expensive and unpredictable and may not result in adequate yields. In
addition, the development of protein purification processes is difficult and may
not produce the high purity required with acceptable yield and costs or may not
result in adequate shelf-lives of the final products. If we are not able to
develop efficient manufacturing processes, the investment in manufacturing
capacity sufficient to satisfy market demand will be much greater and will place
heavy financial demands upon us. If we do not achieve our manufacturing cost
targets, we will have lower margins and reduced profitability in commercial
production and larger losses in manufacturing start-up phases.
If we are unable to increase our marketing and distribution capabilities or to
enter into agreements with third parties to do so, our ability to generate
revenues will be diminished.
If we cannot increase our marketing capabilities either by developing our sales
and marketing organization or by entering into agreements with others, we may be
unable to successfully sell our products. If we are unable to effectively sell
our drug products, our ability to generate revenues will be diminished.
To increase our distribution and marketing for both our drug candidates, we will
have to increase our current sales force and/or enter into third-party marketing
and distribution agreements. We cannot guarantee that we will be able to hire in
a timely manner the qualified sales and marketing personnel we need, if at all.
Nor can we guarantee that we will be able to enter into any marketing or
distribution agreements on acceptable terms, if at all. If we cannot increase
our marketing capabilities as we intend, either by increasing our sales force or
entering into agreements with third parties, sales of our products may be
adversely affected.
Under our joint venture with Genzyme, Genzyme is responsible for marketing and
distributing Aldurazyme. We cannot guarantee that we will be able to establish
sales and distribution capabilities or that the joint venture, any future
collaborators or we will successfully sell any of our drug products.
With our acquisition of Neutralase from IBEX Technologies Inc., we have an
enzyme product that has a significantly larger potential patient population than
Aldurazyme and rhASB and will be marketed and sold to different target audiences
with different therapeutic and financial requirements and needs. As a result, we
will be competing with other pharmaceutical companies with experienced and
well-funded sales and marketing operations targeting these specific physician
and institutional audiences. We may not be able to develop our own sales and
marketing force at all, or of a size that would allow us to compete with these
other companies. If we elect to enter into third-party marketing and
distribution agreements in order to sell into these markets, we may not be able
-10-
to enter into these agreements on acceptable terms, if at all. If we cannot
compete effectively in these specific physician and institutional markets, it
would adversely affect sales of Neutralase.
If we fail to compete successfully, our revenues and operating results will be
adversely affected.
Our competitors may develop, manufacture and market products that are more
effective or less expensive than ours. They may also obtain regulatory approvals
for their products faster than we can obtain them, including those products with
orphan drug designation, or commercialize their products before we do. If our
competitors successfully commercialize a product that treats a given rare
genetic disease before we do, we will effectively be precluded from developing a
product to treat that disease because the patient populations of the rare
genetic diseases are so small. If our competitor gets orphan drug exclusivity,
we could be precluded from marketing our version for seven years in the U.S. and
ten years in the European Union. However, different drugs can be approved for
the same condition. These companies also compete with us to attract qualified
personnel and organizations for acquisitions, joint ventures or other
collaborations. They also compete with us to attract academic research
institutions as partners and to license these institutions' proprietary
technology. If our competitors successfully enter into partnering arrangements
or license agreements with academic research institutions, we will then be
precluded from pursuing those specific opportunities. Since each of these
opportunities is unique, we may not be able to find a substitute. Several
pharmaceutical and biotechnology companies have already established themselves
in the field of enzyme therapeutics, including Genzyme, our joint venture
partner. These companies have already begun many drug development programs, some
of which may target diseases that we are also targeting, and have already
entered into partnering and licensing arrangements with academic research
institutions, reducing the pool of available opportunities.
Universities and public and private research institutions are also competitors.
While these organizations primarily have educational or basic research
objectives, they may develop proprietary technology and acquire patents that we
may need for the development of our drug products. We will attempt to license
this proprietary technology, if available. These licenses may not be available
to us on acceptable terms, if at all. We also directly compete with a number of
these organizations to recruit personnel, especially scientists and technicians.
We believe that established technologies provided by other companies, such as
laboratory and testing services firms, compete with Glyko, Inc.'s products and
services. For example, Glyko's FACERegistered Trademark Imaging System competes
with alternative carbohydrate analytical technologies, including capillary
electrophoresis, high-pressure liquid chromatography, mass spectrometry and
nuclear magnetic resonance spectrometry. These competitive technologies have
established customer bases and are more widely used and accepted by scientific
and technical personnel because they can be used for non-carbohydrate
applications. Companies competing with Glyko may have greater financial,
manufacturing and marketing resources and experience.
If we do not achieve milestones as expected, our stock price may decline.
For planning purposes, we estimate the timing of the accomplishment of various
scientific, clinical, regulatory and other milestones, such as the commencement
or completion of scientific studies and clinical trials and the submission of
regulatory filings. These estimates, some of which are included in this
prospectus, are based on a variety of assumptions. The actual timing of these
milestones can vary dramatically compared to our estimates, in many cases for
reasons beyond our control.
If we fail to manage our growth or fail to recruit and retain personnel, our
product development programs may be delayed.
Our rapid growth has strained our managerial, operational, financial and other
resources. We expect this growth to continue. We have entered into a joint
venture with Genzyme. If we receive FDA approval to market Aldurazyme, the joint
venture will be required to devote additional resources to support the
commercialization of Aldurazyme.
To manage expansion effectively, we need to continue to develop and improve our
research and development capabilities, manufacturing and quality capacities,
sales and marketing capabilities and financial and administrative systems. We
cannot guarantee that our staff, financial resources, systems, procedures or
controls will be adequate to support our operations or that our management will
-11-
be able to manage successfully future market opportunities or our relationships
with customers and other third parties.
Our future growth and success depend on our ability to recruit, retain, manage
and motivate our employees. The loss of key scientific, technical and managerial
personnel may delay or otherwise harm our product development programs. Any harm
to our research and development programs would harm our business and prospects.
Because of the specialized scientific and managerial nature of our business, we
rely heavily on our ability to attract and retain qualified scientific,
technical and managerial personnel. In particular, the loss of Fredric D. Price,
our Chairman and Chief Executive Officer, or Christopher M. Starr, Ph.D., our
Vice President for Research and Development, could be detrimental to us if we
cannot recruit suitable replacements in a timely manner. While Mr. Price and Dr.
Starr are parties to employment agreements with us, we cannot guarantee that
they will remain employed with us in the future. In addition, these agreements
do not restrict their ability to compete with us after their employment is
terminated. The competition for qualified personnel in the biopharmaceutical
field is intense. We cannot be certain that we will continue to attract and
retain qualified personnel necessary for the development of our business.
If we fail to effectively integrate the recently acquired Neutralase and
Phenylase programs into our current operations, the efficient execution of these
product programs could be delayed and our operating and research and development
expenditures could increase beyond anticipated levels.
Our recent acquisition of assets from IBEX Technologies Inc., including the
Neutralase and Phenylase product programs, will need to be integrated with our
current operations. This will include several technical and administrative
challenges, including managing the information transfer, integrating certain of
IBEX's former technical staff into our research and development structure and
managing multiple operations in different countries. If we do not accomplish
this integration effectively, our programs could be delayed and our operating
and research and development expenditures could increase beyond anticipated
levels. Additionally, the integration could require a significant time
commitment from our senior management.
Changes in methods of treatment of disease could reduce demand for our products.
Even if our drug products are approved, doctors must use treatments that require
using those products. If doctors elect a different course of treatment from that
which includes our drug products, this decision would reduce demand for our drug
products.
Examples include the potential use in the future of effective gene therapy for
the treatment of genetic diseases. The use of gene therapy could theoretically
reduce or eliminate the use of enzyme replacement therapy in MPS diseases.
Sometimes, this change in treatment method can be caused by the introduction of
other companies' products or the development of new technologies or surgical
procedures which may not directly compete with ours, but which have the effect
of changing how doctors decide to treat a disease. For example, Neutralase is
being developed for heparin reversal in CABG surgery. It is possible that
alternative non-surgical methods of treating heart disease could be developed.
If so, then the demand for Neutralase would likely decrease.
If product liability lawsuits are successfully brought against us, we may incur
substantial liabilities.
We are exposed to the potential product liability risks inherent in the testing,
manufacturing and marketing of human pharmaceuticals. The BioMarin/Genzyme
LLC maintains product liability insurance for our clinical trials of Aldurazyme.
We have obtained insurance against product liability lawsuits for the clinical
trials for rhASB. We may be subject to claims in connection with our current
clinical trials for Aldurazyme and rhASB for which the joint venture's or our
insurance coverages are not adequate. We cannot be certain that if Aldurazyme
receives FDA approval, the product liability insurance the joint venture will
need to obtain in connection with the commercial sales of Aldurazyme will be
available in meaningful amounts or at a reasonable cost. In addition, we cannot
be certain that we can successfully defend any product liability lawsuit brought
against us. If we are the subject of a successful product liability claim which
exceeds the limits of any insurance coverage we may obtain, we may incur
substantial liabilities which would adversely affect our earnings and financial
condition.
-12-
Our stock price may be volatile, and an investment in our stock could suffer a
decline in value.
Our valuation and stock price since the beginning of trading after our initial
public offering have had no meaningful relationship to current or historical
earnings, asset values, book value or many other criteria based on conventional
measures of stock value. The market price of our common stock will fluctuate due
to factors including:
o progress of Aldurazyme, Neutralase, rhASB and our
other lead drug products through the regulatory process,
especially regulatory actions in the United States related to
Aldurazyme;
o results of clinical trials, announcements of technological
innovations or new products by us or our competitors;
o government regulatory action affecting our drug products or our
competitors' drug products in both the United States and foreign
countries;
o developments or disputes concerning patent or proprietary
rights;
o general market conditions and fluctuations for the emerging
growth and biopharmaceutical market sectors;
o economic conditions in the United States or abroad;
o actual or anticipated fluctuations in our operating results;
o broad market fluctuations in the United States or in Europe,
which may cause the market price of our common stock to
fluctuate; and
o changes in company assessments or financial estimates by
securities analysts
In addition, the value of our common stock may fluctuate because it is listed on
both the Nasdaq National Market and the Swiss Exchange's SWX New Market. Listing
on both exchanges may increase stock price volatility due to:
o trading in different time zones;
o different ability to buy or sell our stock;
o different market conditions in different capital markets; and
o different trading volume.
In the past, following periods of large price declines in the public market
price of a company's securities, securities class action litigation has often
been initiated against that company. Litigation of this type could result in
substantial costs and diversion of management's attention and resources, which
would hurt our business. Any adverse determination in litigation could also
subject us to significant liabilities.
If all or a substantial portion of the shares of our common stock offered for
sale by this prospectus are sold in a short period of time, our stock price may
be adversely affected. Our stock price may also be adversely affected by the
perception that such sales could occur.
The shares of common stock offered for sale by this prospectus represents
approximately 2% of our outstanding common stock. Although we have an agreement
with the selling stockholders that they will not dispose of their shares in a
manner that would unduly prejudice the trading price of our common stock, we
cannot control when the selling stockholders will sell their shares. If all or a
substantial portion of the shares of common stock offered for sale by this
prospectus are sold in a short period of time, the common stock available for
sale may exceed the demand and the stock price may be adversely affected. In
addition, the mere perception that such sales could occur may depress the price
of our common stock.
If our officers, directors and largest stockholder elect to act together, they
may be able to control our management and operations, acting in their best
interests and not necessarily those of other stockholders.
Our directors and officers control approximately 29% of the outstanding shares
-13-
of our common stock. Glyko Biomedical Ltd. owns approximately 22% of the
outstanding shares of our capital stock. The president and chief executive
officer of Glyko Biomedical and a significant shareholder of Glyko Biomedical
serve as two of our directors. As a result, due to their concentration of stock
ownership, directors and officers, if they act together, may be able to control
our management and operations, and may be able to prevail on all matters
requiring a stockholder vote including:
o The election of all directors;
o The amendment of charter documents or the approval of a merger,
sale of assets or other major corporate transactions; and
o The defeat of any non-negotiated takeover attempt that might
otherwise benefit the public stockholders.
Anti-takeover provisions in our charter documents and under Delaware law may
make an acquisition of us, which may be beneficial to our stockholders, more
difficult.
We are incorporated in Delaware. Certain anti-takeover provisions of Delaware
law and our charter documents as currently in effect may make a change in
control of our company more difficult, even if a change in control would be
beneficial to the stockholders. Our anti-takeover provisions include provisions
in the certificate of incorporation providing that stockholders' meetings may
only be called by the board of directors and a provision in the bylaws providing
that the stockholders may not take action by written consent. Additionally, our
board of directors has the authority to issue 1,000,000 shares of preferred
stock and to determine the terms of those shares of stock without any further
action by the stockholders. The rights of holders of our common stock are
subject to the rights of the holders of any preferred stock that may be issued.
The issuance of preferred stock could make it more difficult for a third party
to acquire a majority of our outstanding voting stock. Delaware law also
prohibits corporations from engaging in a business combination with any holders
of 15% or more of their capital stock until the holder has held the stock for
three years unless, among other possibilities, the board of directors approves
the transaction. Our board of directors may use these provisions to prevent
changes in the management and control of our company. Also, under applicable
Delaware law, our board of directors may adopt additional anti-takeover measures
in the future.
-14-
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares offered and
sold for the accounts of the selling stockholders.
The selling stockholders will not pay any of the expenses that are incurred in
connection with the registration of the shares, but they will pay all
commissions, discounts and any other compensation to any securities broker
dealers through whom they sell any of the shares.
SELLING STOCKHOLDERS
The following table sets forth the names of each selling stockholder, the
aggregate number of shares of common stock beneficially owned by each selling
stockholder as of October 31, 2001, and the aggregate number of shares of common
stock that each selling stockholder may offer and sell pursuant to this
prospectus. Because each selling stockholder may offer all or a portion of the
shares of common stock offered by this prospectus at any time and from time to
time after the later of the date hereof or the date that certificates
representing issued shares are delivered, no estimate can be made of the number
of shares that each selling stockholder may retain upon completion of this
offering. However, assuming all of the shares offered by this prospectus are
sold by the selling stockholders then, unless otherwise noted, after completion
of this offering, none of the selling stockholders will own more than one
percent of the shares of common stock outstanding.
On October 31, 2001 we delivered certificates representing 224,750 shares of our
common stock to two of the selling stockholders and in the first week of
December 2001, we delivered certificates representing an additional 589,897
shares of our common stock to a third selling stockholder. The shares constitute
partial consideration for various pharmaceutical assets we acquired from them
and their affiliates. These assets included the Neutralase and Phenylase product
programs described in the "Summary" section of this prospectus. In addition to
the shares of common stock we also paid the selling stockholders an aggregate of
$2.0 million in cash and agreed to make contingent future payments of
approximately $5.9 million and approximately $3.6 million upon the approval of a
New Drug Application by the U.S. Food and Drug Administration for the marketing
of Neutralase and Phenylase respectively. We are registering all of the shares
of common stock offered for sale pursuant to this prospectus as required by the
asset purchase agreements related to the acquisition of these assets.
In the following table, we have calculated shares of common stock beneficially
owned based upon 52,392,341 shares of common stock outstanding on December 12,
2001, together with options, warrants or other convertible securities that are
exercisable, or other rights to acquire common stock, within 60 days of December
12, 2001 for each selling stockholder. Under the rules of the Securities and
Exchange Commission, beneficial ownership includes shares over which the named
stockholder exercises voting and/or investment power. Unless otherwise indicated
in the footnotes below, we believe that the persons and entities named in the
table have sole voting and investment power with respect to all shares
beneficially owned, subject to applicable community property laws. The
information with respect to beneficial ownership of common stock held by each
person is based upon record ownership data provided by our transfer agent,
information as supplied or confirmed by selling stockholders, based upon
statements filed with the Securities and Exchange Commission or based upon our
actual knowledge.
Except for the acquisition described above, within the past three years, none of
the selling stockholders have held any position or office with us or entered
into a material relationship with us.
-15-
Number of Shares
Beneficially Owned Number of Shares
Prior to Offering Offered Hereby
Name
IBEX Pharmaceuticals Inc. (1)................................. 814,647 59,750
IBEX Technologies Corp........................................ 165,000 165,000
IBEX Technologies Delaware Corp............................... 589,897 589,897
(1) IBEX Pharmaceuticals Inc., as the parent corporation of IBEX Technologies
Corp. and IBEX Technologies Delaware Corp., beneficially owns the 165,000 shares
of our common stock held by IBEX Technologies Corp. and the 589,897 shares of
our common stock held by IBEX Technologies Delaware Corp.
-16-
PLAN OF DISTRIBUTION
We are registering the shares of common stock offered for sale by this
prospectus on behalf of the selling stockholders. As used in this section,
"selling stockholders" includes donees, pledgees, distributees, transferees or
other successors-in-interest, including, without limitation, their respective
affiliates, members and limited or general partners, all of which are referred
to as a group below as transferees, or certain counterparties to derivative
transactions with the selling stockholders or transferees. The selling
stockholders will act independently of us in making decisions with respect to
the timing, manner and size of each sale. We will pay all costs, expenses and
fees in connection with the registration of the shares. The selling stockholders
will pay all brokerage commissions, underwriting discounts, commissions,
transfer taxes and other similar selling expenses, if any, associated with the
sale of the shares of common stock by them.
An aggregate of 814,647 shares of common stock was originally issued to and
purchased by the selling stockholders, as partial consideration for certain
assets acquired from the selling stockholders and their affiliates by two of our
subsidiaries. All of these shares of common stock were issued and sold pursuant
to an exemption from the registration requirements of the Securities Act as
provided by Section 4(2) of the Securities Act.
Shares of common stock may be sold by the selling stockholders from time to time
in one or more types of transactions (which may include block transactions) on
the Nasdaq National Market or on any other market on which our common stock may
from time to time be trading, in the over-the-counter market, in privately
negotiated transactions, through put or call options transactions relating to
the shares, through short sales of such shares, or a combination of such methods
of sale, at market prices prevailing at the time of sale, fixed prices, varying
prices determined at the time of sale or at negotiated prices. The selling
stockholders will have the sole discretion not to accept any purchase offer or
make any sale of shares if they deem the purchase price to be unsatisfactory at
any particular time. Such transactions may or may not involve brokers or
dealers. To the best of our knowledge, none of the selling stockholders have
entered into any agreements, understandings or arrangements with any
underwriters or broker-dealers regarding the sale of their securities, nor is
there an underwriter or coordinating broker acting in connection with the
proposed sale of shares of common stock offered by this prospectus; however, the
selling stockholders may enter into agreements, understandings or arrangements
with an underwriter or broker-dealer regarding the sale of their shares in the
future.
The selling stockholders may effect such transactions by selling shares of
common stock directly to purchasers or to or through broker-dealers, which may
act as agents or principals, or other agents. Such broker-dealers or other
agents may receive compensation in the form of discounts, concessions, or
commissions from the selling stockholders and/or the purchasers of shares of
common stock for whom such broker-dealers or other agents may act as agents or
to whom they sell as principal, or both (which compensation as to a particular
broker-dealer or other agent might be in excess of customary commissions).
Market makers and block purchasers purchasing the shares will do so for their
own account and at their own risk. It is possible that a selling stockholder
will attempt to sell shares of common stock in block transactions to market
makers or other purchasers at a price per share which may be below the then
market price. There can be no assurance that all or any part of the shares
offered hereby will be sold by the selling stockholders.
The selling stockholders may enter into hedging transactions with broker-dealers
or other financial institutions with respect to the shares. In connection with
these transactions, broker-dealers or other financial institutions may engage in
short sales of the shares in the course of hedging the positions they assume
with the selling stockholders. The selling stockholders may also sell the shares
short and redeliver the shares to close out the short positions. The selling
stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions that require the delivery to the
broker-dealer or other financial institutions of the shares. The selling
stockholders may also loan or pledge the shares to a financial institution or a
broker-dealer and the financial institution or the broker-dealer may sell the
shares loaned or upon a default the financial institution or the broker-dealer
may effect sales of the pledged shares.
The selling stockholders and any brokers, dealers or agents that participate in
connection with the sale of shares of common stock might be deemed to be
"underwriters" within the meaning of the Securities Act of 1933 (the "Securities
Act"), and any commissions received by such brokers, dealers or agents and any
profit on the resale of the shares sold by them while acting as principals might
-17-
be deemed to be underwriting discounts or commissions under the Securities Act.
We have agreed to indemnify the selling stockholders against certain
liabilities, including liabilities arising under the Securities Act. The selling
stockholders may agree to indemnify any agent, dealer, broker-dealer or
underwriter that participates in transactions involving sales of the shares of
common stock offered pursuant to this prospectus against certain liabilities,
including liabilities arising under the Securities Act.
Because the selling stockholders may be deemed to be "underwriters" within the
meaning of the Securities Act, the selling stockholders will be subject to the
prospectus delivery requirements of the Securities Act and the rules promulgated
thereunder and they may be subject to certain statutory liabilities under the
Securities Act, including, but not limited to, Sections 11, 12 and 17 of the
Securities Act and Rule 10b-5 under the Securities Exchange Act of 1934 (the
"Securities Exchange Act"). In addition, the selling stockholders and any other
person participating in the offering will be subject to applicable provisions of
the Securities Exchange Act and the rules and regulations thereunder, including
Regulation M under the Securities Exchange Act, which may limit the timing of
purchases and sales. These restrictions may affect the marketability of the
common stock and the ability of any person to engage in market-making activities
with respect to the common stock.
Commencing on November 1, 2002, some of the shares of common stock covered by
this prospectus may qualify for resale pursuant to Rule 144 under the Securities
Act and such shares may be sold under Rule 144 rather than under the terms of
this prospectus. In addition, subject to applicable state and foreign laws, the
selling stockholders may sell their common stock outside the United States
pursuant to Rules 903 and 904 of Regulation S under the Securities Act.
To comply with the securities laws of certain jurisdictions, the shares of
common stock offered by this prospectus may need to be offered or sold only
through registered or licensed brokers or dealers. In addition, in certain
jurisdictions, the shares of common stock may not be offered or sold unless they
have been registered or qualified for sale or an exemption is available and
complied with.
If a selling stockholder notifies us that any material arrangement has been
entered into with a broker-dealer for the sale of shares of common stock through
a block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker, dealer or underwriter, we will file a supplement to
this prospectus, if required, pursuant to Rule 424(b) under the Securities Act.
In addition, to the extent required, we will amend or supplement this prospectus
to disclose other material arrangements regarding the plan of distribution.
-18-
LEGAL MATTERS
For the purpose of this offering, Paul, Hastings, Janofsky & Walker LLP, Los
Angeles, California is giving an opinion of the validity of the issuance of the
securities offered in this prospectus.
EXPERTS
The financial statements included in our Annual Report on Form 10-K for the year
ended December 31, 2000, incorporated by reference in this prospectus and
elsewhere in the registration statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their report with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said report
WHERE YOU CAN FIND MORE INFORMATION
We are a reporting company and file annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy these
reports, proxy statements and other information at the SEC's public reference
rooms in Washington, D.C., New York, NY and Chicago, IL. You can request copies
of these documents by writing to the SEC and paying a fee for the copying cost.
Please call the SEC at 1-800-SEC-0330 for more information about the operation
of the public reference rooms. Our SEC filings are also available at the SEC's
Web site at "http://www.sec.gov." In addition, you can read and copy our SEC
filings at the office of the National Association of Securities Dealers, Inc. at
1735 K Street, Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" information that we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. Further, all
filings we make under the Securities Exchange Act of 1934 after the date of the
initial registration statement and prior to effectiveness of the registration
statement shall be deemed to be incorporated by reference into this prospectus.
We incorporate by reference the documents listed below and any future filings we
will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934:
1. Our Annual Report on Form 10-K for the year ended December 31,
2000;
2 Our Definitive Proxy Statement dated April 3, 2001 filed in
connection with our 2001 Annual Meeting of Stockholders;
3. Our Quarterly Reports on Form 10-Q for the quarters ended March
31, 2001, June 30, 2001 and September 30, 2001;
4. Our Current Reports on Form 8-K, as filed on May 18, 2001, June
25, 2001, August 16, 2001, September 6, 2001, September 11,
2001, October 10, 2001, October 26, 2001, two reports filed
on November 2, 2001, one of which was amended and restated
on a Form 8-K/A filed on November 15, 2001, and one report
filed on December 17, 2001; and
5. The description of our common stock set forth in our Form 8A,
filed with the SEC on July 15, 1999.
-19-
We will provide to you at no cost a copy of any and all of the information
incorporated by reference into the registration statement of which this
prospectus is a part. You may make a request for copies of this information in
writing or by telephone. Requests should be directed to:
-20-
BioMarin Pharmaceutical Inc.
Attention: Jeremy Price
371 Bel Marin Keys Boulevard, Suite 210
Novato, CA 94949
(415) 884-6777
Any statement contained in a document incorporated or deemed to be incorporated
by reference in this prospectus shall be deemed modified, superceded or replaced
for purposes of this prospectus to the extent that a statement contained in this
prospectus, or in any subsequently filed document that also is deemed to be
incorporated by reference in this prospectus, modifies, supercedes or replaces
such statement. Any statement so modified, superceded or replaced shall not be
deemed, except as so modified, superceded or replaced, to constitute part of
this prospectus.
-21-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses to be paid by the
registrant in connection with the sale of the common stock being registered:
Securities and Exchange Commission registration fee.. $ 2,206
Legal fees and expenses.............................. $10,000
Accountants' fees and expenses....................... $ 2,000
Miscellaneous........................................ $ 4,000
-------
Total................................................ $18,206
The foregoing items, except for the Securities and Exchange Commission
registration fee, are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to the Amended and Restated Certificate of Incorporation with
the Registrant; the Bylaws of the Registrant; Section 145 of the Delaware
General Corporation Law; which, among other things, and subject to certain
conditions, authorize the Registrant to indemnify, or indemnify by their terms,
as the case may be, the directors and officers of the Registrant against certain
liabilities and expenses incurred by such persons in connection with claims made
by reason of their being such a director or officer. Pursuant to this authority,
the Registrant has entered into an indemnification agreement with each director
and executive officer, whereby the Registrant has agreed to cover the
indemnification obligations.
The Registrant maintains directors' and officers' insurance providing
indemnification against certain liabilities for certain of the Registrant's
directors, officers, affiliates, partners or employees.
The indemnification provisions in the Registrant's Bylaws, and the
indemnification agreements entered into between the Registrant and its directors
and executive officers, may be sufficiently broad to permit indemnification of
the Registrant's officers and directors for liabilities arising under the Act.
Reference is made to the following documents incorporated by reference into this
Registration Statement regarding relevant indemnification provisions described
above and elsewhere herein: (1) the Amended and Restated Certificate of
Incorporation, filed as Exhibit 3.1B to Registrant's Amendment No. 2 to
Registration Statement on Form S-1 filed with the Securities and Exchange
Commission on July 6, 1999; (2) the Registrant's Bylaws filed as Exhibit 3.1 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001,
and (3) the form of Indemnification Agreement entered into by the Registrant
with each of its directors and executive officers filed as Exhibit 10.1 to
Registrant's Registration Statement on Form S-1 filed with the Securities and
Exchange Commission on May 4, 1999, each incorporated by reference into this
Registration Statement.
II-1
ITEM 16. EXHIBITS
Exhibit
Number Description of Document
5.1* Opinion of Paul, Hastings, Janofsky & Walker LLP.
10.1 Canadian Asset Purchase Agreement dated October 9, 2001 by and
among BioMarin Pharmaceutical Inc., BioMarin Pharmaceutical Nova
Scotia Company, IBEX Technologies Inc., IBEX Pharmaceutical
Inc., IBEX Technologies LLC, IBEX Technologies Corp. and
Technologies IBEX R&D Inc.
10.2* United States Asset Purchase Agreement dated October 9, 2001 by
and among BioMarin Pharmaceutical Inc., BioMarin Enzymes Inc.,
IBEX Technologies Inc., IBEX Pharmaceutical Inc., IBEX
Technologies LLC, IBEX Technologies Corp. and Technologies IBEX
R&D Inc.
10.3* Amendment to Canadian Asset Purchase Agreement dated October 31,
2001 by and among BioMarin Pharmaceutical Inc., BioMarin
Pharmaceutical Nova Scotia Company, IBEX Technologies Inc., IBEX
Pharmaceutical Inc., IBEX Technologies LLC, IBEX Technologies
Corp. and Technologies IBEX R&D Inc.
10.4* Amendment to United States Asset Purchase Agreement dated
October 31, 2001 by and among BioMarin Pharmaceutical Inc.,
BioMarin Enzymes Inc., IBEX Technologies Inc., IBEX
Pharmaceutical Inc., IBEX Technologies LLC, IBEX Technologies
Corp. and Technologies IBEX R&D Inc., and IBEX Technologies
Delaware Corp.
23.1 Consent of Paul, Hastings, Janofsky & Walker LLP.
23.2 Consent of Arthur Andersen LLP.
24.1* Power of Attorney.
-------------------------------------------------------------------------
* Filed previously
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act of
1933, may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in Item 15 or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-2
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
pursuant to this registration statement: (i) to include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) to include any material information with respect to the
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant undertakes that: (1) for purpose of determining any
liability under the Securities Act of 1933, the information omitted from the
form of prospectus filed as part of the registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the Registrant pursuant
to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of the registration statement as of the time it was declared effective;
and (2) for the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Novato, State of California, this 24th day of
December, 2001.
BIOMARIN PHARMACEUTICAL INC.
By: *
---------------------------
Fredric D. Price
Chairman, Chief Executive Officer and
Director (Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1
to Registration Statement on Form S-3 has been signed by the following persons
in the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
* Chairman, Chief Executive Officer and Director December 24, 2001
--------------------------- (Principal Executive Officer)
Fredric D. Price
/s/ Raymond W. Anderson Chief Financial Officer, Chief Operating December 24, 2001
--------------------------- Officer, Secretary, and Vice President Finance
Raymond W. Anderson and Administration (Principal Financial and
Accounting Officer)
* Director December 24, 2001
---------------------------
Grant W. Denison, Jr.
* Director December 24, 2001
---------------------------
Phyllis I. Gardner, M.D.
* Director December 24, 2001
---------------------------
Erich Sager
* Director December 24, 2001
---------------------------
Gwynn R. Williams
*By: /s/ Raymond W. Anderson
--------------------------
Raymond W. Anderson as
Attorney-In-Fact
II-4
Exhibit
Number Description of Document
5.1* Opinion of Paul, Hastings, Janofsky & Walker LLP.
10.1 Canadian Asset Purchase Agreement dated October 9, 2001 by and
among BioMarin Pharmaceutical Inc., BioMarin Pharmaceutical Nova
Scotia Company, IBEX Technologies Inc., IBEX Pharmaceutical
Inc., IBEX Technologies LLC, IBEX Technologies Corp. and
Technologies IBEX R&D Inc.
10.2* United States Asset Purchase Agreement dated October 9, 2001 by
and among BioMarin Pharmaceutical Inc., BioMarin Enzymes Inc.,
IBEX Technologies Inc., IBEX Pharmaceutical Inc., IBEX
Technologies LLC, IBEX Technologies Corp. and Technologies IBEX
R&D Inc.
10.3* Amendment to Canadian Asset Purchase Agreement dated October 31,
2001 by and among BioMarin Pharmaceutical Inc., BioMarin
Pharmaceutical Nova Scotia Company, IBEX Technologies Inc., IBEX
Pharmaceutical Inc., IBEX Technologies LLC, IBEX Technologies
Corp. and Technologies IBEX R&D Inc.
10.4* Amendment to United States Asset Purchase Agreement dated
October 31, 2001 by and among BioMarin Pharmaceutical Inc.,
BioMarin Enzymes Inc., IBEX Technologies Inc., IBEX
Pharmaceutical Inc., IBEX Technologies LLC, IBEX Technologies
Corp. and Technologies IBEX R&D Inc., and IBEX Technologies
Delaware Corp.
23.1 Consent of Paul, Hastings, Janofsky & Walker LLP.
23.2 Consent of Arthur Andersen LLP.
24.1* Power of Attorney.
-------------------------------------------------------------------------
* Filed previously
II-5
EXHIBIT 10.1
------------
BIOMARIN PHARMACEUTICAL INC.
- and -
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
- and -
IBEX TECHNOLOGIES INC.
- and -
IBEX PHARMACEUTICALS INC.
- and -
IBEX TECHNOLOGIES LLC
- and -
IBEX TECHNOLOGIES CORP.
- and -
TECHNOLOGIES IBEX R&D INC.
CANADIAN ASSET PURCHASE AGREEMENT
CASSELS BROCK & BLACKWELL LLP
Barristers & Solicitors
Scotia Plaza
Suite 2100
40 King Street West
Toronto, Ontario
M5H 3C2
THIS ASSET PURCHASE AGREEMENT made as of the 9th day of October, 2001.
AMONG:
BIOMARIN PHARMACEUTICAL INC.
a corporation incorporated pursuant to the laws of Delaware
("BioMarin")
OF THE FIRST PART
- and -
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
a corporation incorporated pursuant to the laws of the
Province of Nova Scotia
("BioMarin NS")
OF THE SECOND PART
- and -
IBEX TECHNOLOGIES INC.
a corporation incorporated pursuant to the laws of Canada
("IBEX")
OF THE THIRD PART
- and -
IBEX PHARMACEUTICALS INC.
a corporation incorporated pursuant to the laws of Canada
("IBEX Pharma")
OF THE FOURTH PART
- and -
IBEX TECHNOLOGIES LLC
a limited liability company organized under the laws of
Delaware
("IBEX LLC")
OF THE FIFTH PART
-1-
- and -
IBEX TECHNOLOGIES CORP.
a corporation incorporated pursuant to the laws of Delaware
("IBEX Corp.")
OF THE SIXTH PART
- and -
TECHNOLOGIES IBEX R&D INC.
a corporation incorporated pursuant to the laws of the
Province of Quebec
("IBEX R&D")
OF THE SEVENTH PART
WHEREAS IBEX, IBEX Pharma and IBEX R&D (collectively, the "Vendors") are in the
business of the research and development of enzymes for diagnostic and
therapeutic use in a variety of tissue repair and cardiovascular and genetic
diseases and the Vendors wish to sell and BioMarin NS wishes to purchase certain
Canadian assets pertaining to the operation of the therapeutic portion of such
business in Canada in connection with the IBEX Pharma Products (as hereinafter
defined) and BioMarin NS wishes to assume only certain liabilities in connection
therewith, all on and subject to the terms and conditions hereinafter set forth
and the parties hereto are therefore desirous of entering into this Agreement;
AND WHEREAS BioMarin joins in this Agreement to make certain representations and
warranties as well as covenants, including without limitation, with respect to
the BioMarin Canadian Transaction Shares (as hereinafter defined);
AND WHEREAS contemporaneous herewith the parties hereto (exclusive of BioMarin
NS) together with BioMarin US (as defined below) are executing and delivering
the U.S. Purchase Agreement (as hereinafter defined);
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants, agreements and premises herein contained and for other good and
valuable consideration (the receipt and sufficiency whereof being hereby
acknowledged by each party), the Parties do hereby covenant and agree as
follows:
-2-
1. DEFINITIONS AND SCHEDULES
1.1 Definitions. In this Agreement:
"Acquisition Proposal" means any proposal (other than a proposal made
with respect to the Canadian Transaction) regarding: (i) any merger,
consolidation, share exchange, business combination or other similar
transaction or series of related transactions involving the members of
the IBEX Group or any of their Affiliates which would or could defeat
the purchase by BioMarin NS or BioMarin US, as the case may be, of all
of the IBEX Pharma Canadian Assets and/or the Worldwide Assets (as
defined in the U.S. Purchase Agreement) and/or all of the IBEX Pharma
Canadian Business and/or all of the Worldwide Business (as defined in
the U.S. Purchase Agreement) and/or the hiring of all of the
Therapeutic Asset Employees; (ii) any sale, lease, license, exchange,
transfer or other disposition of any of the IBEX Pharma Canadian
Assets, the Worldwide Assets and/or any of the Therapeutic Asset
Employees and/or any portion of the IBEX Pharma Canadian Business
and/or the IBEX Group Worldwide Business; or (iii) any other
substantially similar transaction or series of related transactions
that would or could hinder the consummation of the Canadian
Transaction, the Worldwide Transaction or otherwise defeat the purposes
of this Agreement or the U.S. Purchase Agreement.
"Action" has the meaning ascribed thereto in section 10.1.
"Actual Knowledge" means such knowledge as the current officers of the
members of the IBEX Group would have after diligent inquiry of the
current officers and employees of the members of the IBEX Group of the
matter in question.
"Affiliate" of a Person means any Person that directly or indirectly
controls, is controlled by or is under control with the indicated
Person.
"Agreement", "this Agreement", "hereto" and "herein" means this
Agreement and all schedules attached hereto, as may be amended from
time to time.
"Best Knowledge" means such knowledge as the Party would have after
diligent inquiry of the matter in question.
"BioMarin" means BioMarin Pharmaceutical Inc., a Delaware corporation.
"BioMarin Canadian Transaction Shares" means the number of shares of
common stock of BioMarin equal to: (i) the Canadian Purchase Price
divided by: (ii) the product of (A) the BioMarin Share Current Market
Price and (B) the average value in Canadian dollars of one US dollar
calculated at the average rate of exchange between Canadian dollars and
US dollars (as reported in International Financial Statistics,
published by the International Monetary Fund) for the 20 trading days
ending on the trading day prior to the date of this Agreement.
-3-
"BioMarin Financial Statements" has the meaning ascribed thereto in
section 6.1(k).
"BioMarin Group" means collectively, BioMarin and BioMarin NS.
"BioMarin NS" means BioMarin Pharmaceutical Nova Scotia Company, a Nova
Scotia unlimited liability company.
"BioMarin Options" has the meaning ascribed thereto in section 11.1(d).
"BioMarin Share Current Market Price" means the daily volume weighted
average price (based on a trading day from 9:30 a.m. to 4:00 p.m.,
Eastern Time) of the shares of common stock of BioMarin on the Nasdaq
National Market for the 20 trading days ending on the trading day prior
to the date of this Agreement (as reported by Bloomberg Financial LP
using the AQR function).
"BioMarin US" means BioMarin Enzymes Inc., a Delaware corporation.
"BioMarin Year End" has the meaning ascribed thereto in section 6.1(k).
"Bulk Sales Carve-Out" means any non-compliance by members of the IBEX
Group with Article 1767 ss of the Civil Code of the Province of Quebec
in connection with: (i) that certain intercorporate transfer effected
by agreement dated September 1, 1999, between IBEX and IBEX Pharma; and
(ii) the Canadian Transaction.
"Business Day" means a day other than a Saturday or a Sunday or any
other day which is a statutory holiday in the Province of Quebec or in
the State of California.
"Canadian Assigned Rights" has the meaning ascribed thereto in section
12.1(m).
"Canadian Assigned Rights Consents" has the meaning ascribed thereto in
section 12.1(m).
"Canadian Purchase Price" has the meaning ascribed thereto in section
3.1.
"Canadian Transaction" means the transaction contemplated by this
Agreement.
"Capital Reorganization" has the meaning ascribed thereto in section
14.5.
"Claims" has the meaning ascribed thereto in the definition of
Environmental Claims.
-4-
"Closing" means the consummation of the Canadian Transaction as herein
contemplated.
"Closing Date" means October 31, 2001 or such earlier or later date
which is five (5) Business Days following the satisfaction of all
conditions to closing set forth in sections 11.1 and 12.1 or as may
otherwise be agreed to in writing by the Parties and in no event shall
be later than December 31, 2001.
"Closing Documents" means any document or undertaking delivered in
relation to the Closing as provided in this Agreement.
"Commission" means the United States Securities and Exchange
Commission.
"Confidential Information" has the meaning ascribed thereto in section
15.1.
"Contract" means any order, agreement, engagement, indenture, contract,
bond, debenture, security agreement, lease, deed of trust, license,
option, instrument or other legally binding commitment, whether written
or oral.
"Control" means the ability to grant assignments, licenses or
sub-licenses without violating the terms of any agreement or other
arrangement with, or the rights of, any other Person.
"Employee Plan" means all pension, retirement, disability, medical,
dental or other health insurance plans, life insurance or other death
benefit plans, any stock option, bonus or other incentive plans,
vacation benefit plans, severance plans or other employee benefit plans
or arrangements to which IBEX is a party in connection with any
Therapeutic Asset Employee or by which IBEX is bound in connection with
any Therapeutic Asset Employee. "Employee Plan" does not include any
government-sponsored employee benefit arrangements.
"Encumbrances" means any and all claims, liens, security interests,
hypothecs, rights, prior claims, mortgages, pledges, pre-emptive
rights, charges, options, equity interests, encumbrances, proxies,
voting agreements, voting trusts, leases, tenancies, easements,
reserves, conditional sale contracts, ownership or title retention
agreements, or other interests of any nature or kind whatsoever,
howsoever created.
"Environment" means surface waters, groundwaters, soil, subsurface
strata and ambient air.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, stop orders,
investigations, injunctions, restrictions, control orders, liens,
notices of noncompliance or violation, investigations, proceedings,
consent orders or consent agreements (collectively, the "Claims"),
relating in any way to Environmental Laws or Environmental Permits
including without limitation: (i) any and all Claims by Governmental
-5-
Authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to applicable Environmental Laws; and
(ii) any and all Claims by any Person seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting from Hazardous Materials or arising from alleged injury or
threat of injury to health, safety or the environment.
"Environmental Condition" means a condition relating to or arising or
resulting from a failure to comply with any Environmental Laws or
Environmental Permits or a Release of a Hazardous Material into the
Environment.
"Environmental Laws" means any Law, now or hereafter in effect and as
amended and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to the Environment, health, safety or Hazardous
Materials.
"Environmental Permits" means all permits, approvals, identification
numbers, licenses and other authorizations required under applicable
Environmental Laws.
"ETA" means the Excise Tax Act (Canada).
"Exchange Act" means the United States Exchange Act of 1934, as
amended.
"Excluded Liabilities" means all liabilities of the Vendors that are
not IBEX Pharma Canadian Assumed Liabilities and for greater certainty
and without limitation, IBEX Pharma Canadian Assumed Liabilities do not
include any liabilities of either IBEX R&D or IBEX or liabilities that
relate to the IBEX Pharma Canadian Excluded Assets or the Retained
Employees.
"Filter Technology" means the assets set forth on Schedule 2.1.
"Governmental Authority" means any Canadian federal, provincial,
municipal or local or any other foreign government, governmental,
regulatory or administrative authority, agency or commission or any
court, tribunal or judicial or arbitral body, board, bureau or
instrumentality.
"Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Hazardous Materials" means: (i) petroleum and petroleum products,
radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other
equipment that contain polychlorinated biphenyls and radon gas; (ii)
any other chemicals, materials or substances defined as or included in
the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous wastes", "restricted
hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants" or words of similar import, under any
applicable Environmental Law; and (iii) any other chemical, material or
substance exposure to which is regulated by any Governmental Authority.
-6-
"IBEX" means IBEX Technologies Inc., a Canadian corporation.
"IBEX Corp" means IBEX Technologies Corp., a Delaware corporation.
"IBEX Financial Statements" has the meaning ascribed thereto in section
5.1(p).
"IBEX Group" means collectively, IBEX, IBEX Pharma, IBEX LLC, IBEX
Corp. and IBEX R&D.
"IBEX LLC" means IBEX Technologies LLC, a Delaware limited liability
company.
"IBEX Pharma" means IBEX Pharmaceuticals Inc., a Canadian corporation.
"IBEX Pharma Canadian Assets" means the Canadian assets of the Vendors
set forth at Schedules 2.1(a), 2.1(b), 2.1(c), 2.1(d) and 2.1(e) used
in connection with or related to the IBEX Pharma Canadian Business
including without limitation, the IBEX Pharma Canadian Fixed Assets,
the IBEX Pharma Canadian Inventory and the IBEX Pharma Canadian
Intellectual Property.
"IBEX Pharma Canadian Assumed Liabilities" has the meaning ascribed
thereto in section 2.2.
"IBEX Pharma Canadian Business" means the therapeutic portion
(excluding the diagnostic portion retained by the IBEX Group and the
diagnostic, reagent and limited therapeutic use portions licensed to
the IBEX Group under the agreement set forth in Schedule 11.1(h)) of
the research, development, manufacture, use, sale, production,
technology and marketing in Canada of the IBEX Pharma Products.
"IBEX Pharma Canadian Excluded Assets" has the meaning ascribed thereto
in section 2.6.
"IBEX Pharma Canadian Fixed Assets" means all of the machinery,
equipment, moveable property and other assets located in Canada and
described in section 2.1(b), save and except for the Filter Technology.
"IBEX Pharma Canadian Intellectual Property" means all Intellectual
Property owned or Controlled by the Vendors relating to or being used
in connection with the IBEX Pharma Canadian Business including, without
limitation, those identified in Schedule 2.1(c), but excluding the IBEX
Pharma Canadian Excluded Assets.
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"IBEX Pharma Canadian Inventory" means all inventories of and
pertaining to the IBEX Pharma Canadian Business, including without
limitation, clinical supply materials, packaging materials, raw,
semi-finished and finished products, work in progress, raw materials,
all other materials and supplies on hand to be used or consumed in the
production of products, work in progress, items purchased for resale
and inventories in transit from suppliers if paid for or owned by any
of the Vendors and all inventories of general stores and supplies (if
any), likewise if paid for or owned by any of the Vendors, including
without limitation, those described in Schedule 2.1(d), but excluding
the IBEX Pharma Canadian Excluded Assets.
"IBEX Pharma Products" means: (i) Heparinase I in respect of its use in
a biopharmaceutical human therapeutic business (i.e. Neutralase); (ii)
Heparinase II; (iii) Heparinase III (i.e. Extravase); (iv)
Chondroitinase AC (IBT9401) and Chondroitinase B; (v) Oralase
Technology (including Phenylase); and (vi) Flavobacterium Production
Technology with respect to Heparinase I, II and III.
"IBEX R&D" means Technologies IBEX R&D Inc., a Quebec company.
"IBEX Year End" has the meaning ascribed thereto in section 5.1(p).
"Indemnified Party" has the meaning ascribed thereto in section 10.3.
"Indemnitor" has the meaning ascribed thereto in section 10.3.
"Intellectual Property" means any or all of the following and all
rights in, arising out of, or associated therewith: (i) all Canadian
patents (including utility models, supplementary protection
certificates and applications therefor) and all reissues, divisions,
renewals, extensions, provisionals, continuations and
continuations-in-part thereof and equivalent or similar rights in
Canada in inventions and discoveries; (ii) all inventions (whether
patentable or not), improvements, trade secrets, proprietary
information, know-how, technology, technical data research notes,
computer system architecture and customer lists and all documentation
embodying or evidencing any of the foregoing; (iii) all copyrights,
copyright registrations and applications therefor and all other rights
corresponding thereto in Canada; (iv) all mask works, mask work
registrations and applications therefor and any equivalent or similar
rights in semiconductor masks, layouts, architectures or topology; (v)
all industrial designs and any registrations and applications therefor
in Canada; (vi) all trade names, logos, common law trademarks and
service marks, trademark and service mark registrations and
applications therefor and all goodwill associated therewith in Canada;
(vii) all rights in databases and data collections in Canada; (viii)
all rights in Software, data, databases, web content and Internet sites
in Canada; (ix) all rights in domain names, domain name registrations
and applications therefor in Canada; and (x) any similar, corresponding
or equivalent rights to any of the foregoing in Canada.
"Law" means any Canadian federal, provincial, municipal, local or any
foreign statute, law, ordinance, regulation, rule, code, order,
requirement or rule of law (including without limitation, common law).
-8-
"Liabilities" means any and all debts, liabilities and obligations,
whether accrued or fixed, absolute or contingent, matured or unmatured
or determined or determinable, including without limitation, those
arising under any Law (including without limitation, any Environmental
Law), action or Governmental Order and those arising under any
contract, agreement, arrangement, commitment or undertaking.
"Losses" means any and all claims, demands, debts, suits, actions,
obligations, proceedings, losses, damages, liabilities, deficiencies,
costs and expenses (including without limitation, all reasonable legal
and other professional fees and disbursements, interest, penalties and
amounts paid in settlement).
"Material Adverse Effect" means a material adverse effect on the
business, assets, liabilities, condition (financial or otherwise),
operations or prospects of the Party in question.
"Minimum Threshold" has the meaning ascribed thereto in section 10.6.
"Parties" means collectively, the parties to this Agreement.
"Permits and Licenses" has the meaning ascribed thereto in section
5.1(r).
"Person" means any individual, partnership, company, corporation, firm,
unincorporated association, joint venture or trust however designated
or constituted or wheresoever organized and any Governmental Authority.
"Quebec Securities Commission Approvals" has the meaning set forth in
section 12.1(k).
"Release" means disposing, discharging, injecting, spilling, leaking,
leaching, dumping, emitting, escaping, emptying, seeping, placing and
the like into or upon any land, water or air or otherwise entering into
the Environment.
"Representatives" has the meaning ascribed thereto in section 9.2.
"Retained Employees" has the meaning ascribed thereto in section 2.3.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Software" means computer software and programs in any form, including
source code, object code, operating systems and specifications,
database management code, utilities, graphical user interfaces, menus,
images, icons, forms, methods of processing, software engines,
platforms and data formats, all versions, updates, corrections,
enhancements and modifications thereof and all related documentation,
developer notes, comments and annotations.
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"Successor Company" has the meaning ascribed thereto in section 14.5.
"Suspension Period" has the meaning ascribed thereto in section 7.1(b).
"Tax Act" means The Income Tax Act (Canada).
"Taxes" means all taxes and any liability, whether disputed or not,
imposed by Canada or any province or municipality thereof or by any
other country or foreign government or any subdivision or agency
thereof.
"Time of Closing" means 2:00 p.m. (Toronto time) on the Closing Date or
if the Canadian Transaction is not completed at such time, then such
other time on the Closing Date on which the Canadian Transaction is
completed.
"Therapeutic Asset Employees" has the meaning ascribed thereto in
section 2.5.
"Therapeutic Assets" means the assets currently used or owned or
Controlled by the members of the IBEX Group in the conduct of their
biopharmaceutical human therapeutic business.
"Third Party Claim" has the meaning ascribed thereto in section 10.3.
"Underlying Securities" means the shares of common stock of BioMarin
issuable on exercise of the BioMarin Options.
"U.S. Purchase Agreement" means that certain agreement dated as of even
date among BioMarin, BioMarin US and the members of the IBEX Group, a
copy of which is attached as Schedule 1.1.
"Vendors" has the meaning ascribed thereto in the preambles to this
Agreement.
All capitalized terms used but not otherwise defined in this Agreement
shall have their respective meanings set forth in the U.S. Purchase
Agreement.
1.2 Act. Any reference in this Agreement to any act, by-law, rule or
regulation or to a provision thereof shall be deemed to include a reference to
any act, by-law, rule, regulation or provision enacted in substitution or
amendment thereof.
1.3 Toronto Time. Except where otherwise expressly provided in this Agreement
any reference to time shall be deemed to be a reference to Toronto time.
1.4 Gender and Extended Meanings. In this Agreement words and personal
pronouns relating thereto shall be read and construed as the number and gender
of the party or parties referred to in each case require and the verb shall be
construed as agreeing with the required word and pronoun. For greater certainty
and without limitation, in this Agreement the word "shall" has the same meaning
as the word "will".
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1.5 Canadian Dollars and Payment. All dollar amounts referred to in this
Agreement are in Canadian funds, unless otherwise expressly specified.
1.6 Section Headings. The division of this Agreement into sections is for the
convenience of reference only and shall not effect the interpretation or
construction of this Agreement.
1.7 Business Day. If the date for the taking of any action under this
Agreement falls on a day which is not a Business Day, then such action shall be
taken on the next following Business Day.
1.8 Ordinary Course. For the purposes of this Agreement, a transaction or
activity shall be considered to be in the ordinary course of the IBEX Pharma
Canadian Business if it constitutes an ordinary business activity of the Vendors
relating to the IBEX Pharma Canadian Business conducted in a commercially
reasonable and business-like manner consistent with past practices of the
Vendors in respect of the IBEX Pharma Canadian Business.
2. AGREEMENT TO PURCHASE AND SELL
2.1 IBEX Pharma Canadian Assets. Based on the covenants, representations
and warranties set forth herein and subject to the conditions herein, the
Vendors hereby agree to sell, transfer, assign, convey and set over to BioMarin
NS and BioMarin NS hereby agrees to purchase from the Vendors on the Closing
Date, free and clear of any and all Encumbrances subject to rights of creditors
pursuant to the Bulk Sales Carve-Out with good and marketable title thereto, all
of the following with the exception of the Filter Technology:
(a) IBEX Pharma Canadian Fixed Assets. The fixed assets
owned or used by any of the Vendors in the operation of the
IBEX Pharma Canadian Business, as itemized at Schedule 2.1(a),
on an "as is - where is" basis without warranty, except as to
title.
(b) Contracts, Permits and Licenses. The Contracts to which
any of the Vendors is a party or otherwise a beneficiary and the
Permits and Licenses obtained by any of Vendors, in each case,
in connection with the IBEX Pharma Canadian Business, as
itemized at Schedule 2.1(b).
(c) IBEX Pharma Canadian Inventory. The IBEX Pharma Canadian
Inventory, as itemized at Schedule 2.1(c).
(d) IBEX Pharma Canadian Intellectual Property. The IBEX Pharma
Canadian Intellectual Property, as itemized at Schedule 2.1(d).
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(e) All Pre-Clinical and Clinical Trial Data. All pre-clinical and
clinical trial data relating to the IBEX Pharma Products and the
Therapeutic Assets located in Canada.
2.2 IBEX Pharma Canadian Assumed Liabilities. From and after the Closing
Date, BioMarin NS shall assume and perform in due course only those liabilities
of the Vendors in connection with the IBEX Pharma Canadian Business listed on
Schedule 2.2 (the "IBEX Pharma Canadian Assumed Liabilities"). Notwithstanding
anything to the contrary contained in this Agreement, BioMarin NS shall not
assume or have any responsibility for any of the Excluded Liabilities. As and by
way of a post-closing covenant, the members of the BioMarin Group shall
solidarily indemnify and save harmless the Vendors from all Losses which may be
incurred by the Vendors in respect of the IBEX Pharma Canadian Assumed
Liabilities, arising from and after the Closing Date and the members of the IBEX
Group shall solidarily indemnify and save harmless the members of the BioMarin
Group from all Losses which may be incurred by the BioMarin Group in respect of
the Excluded Liabilities.
2.3 Offer of Employment. On Closing, BioMarin NS shall offer new employment to
all those current employees of the IBEX Group employed in connection with the
IBEX Pharma Canadian Business and the IBEX Group Worldwide Business (as defined
in the U.S. Purchase Agreement) set forth on Schedule 5.1(t) in connection with
the IBEX Pharma Products (the "Therapeutic Asset Employees"), on terms and
conditions (including the condition that should any current IBEX Group employee
(other than those employees who enter into employment agreements with BioMarin
or BioMarin NS) be terminated by BioMarin NS prior to one year following the
closing of the Canadian Transaction, BioMarin shall pay severance in accordance
with IBEX's severance practices which existed on December 31, 2000, as set forth
at Schedule 2.3, provided that no severance shall be payable except as required
under applicable law in the event that such terminated employee is employed by
any member of the IBEX Group on or before the date which is one year following
Closing) which are at least financially equivalent to those upon which the
Therapeutic Asset Employees are currently employed by IBEX Pharma. Prior to
Closing, the IBEX Group shall pay all compensation and benefits of the
Therapeutic Asset Employees to and including the Closing Date, including without
limitation, in respect of severance and holiday pay and all benefits, if any.
IBEX Pharma shall make all applicable deductions and remittances as required by
Law in respect of the Therapeutic Asset Employees.
As and by way of a post-closing covenant, the members of the IBEX Group shall
solidarily indemnify and save harmless the members of the BioMarin Group from
any Losses that may be incurred by BioMarin as a result of the failure of IBEX
to comply with the provisions of this section 2.3. The members of the IBEX Group
shall be solidarily liable for any worker's compensation Claims and increases in
premiums payable by BioMarin NS with respect to the Therapeutic Asset Employees
based on facts, circumstances and conditions occurring on or prior to the
Closing Date regardless of the date on which the Claims were filed and the
members of the IBEX Group shall solidarily indemnify and save harmless the
members of the BioMarin Group from and against any Losses resulting from,
arising out of, or relating to all such Claims and increases in premiums. The
members of the BioMarin Group shall not be liable for any severance or other
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payments payable to any employees of the IBEX Group that are not Therapeutic
Asset Employees and the members of the IBEX Group shall solidarily indemnify and
save harmless the members of the BioMarin Group from and against any and all
Losses resulting from, arising out of or relating to such employees who are not
Therapeutic Asset Employees (the "Retained Employees").
2.4 Excluded Assets. For greater certainty and without limitation, the
assets of IBEX Pharma that are not being sold in connection with the IBEX Pharma
Canadian Business, are itemized or described at Schedule 2.4 and constitute the
"IBEX Pharma Canadian Excluded Assets", which do not form a part of the IBEX
Pharma Canadian Assets.
3. CANADIAN PURCHASE PRICE FOR CANADIAN ASSETS AND TAXES
3.1 Canadian Purchase Price. The purchase price for the IBEX Pharma
Canadian Assets which includes, for purposes of this section, the Filter
Technology (the "Canadian Purchase Price") shall be an amount equal to
CDN$1,138,898 plus the value of the IBEX Pharma Canadian Assumed Liabilities.
3.2 Payment of Canadian Purchase Price. The Canadian Purchase Price shall
be paid on the Closing Date by: (i) the assumption by BioMarin NS of the IBEX
Pharma Canadian Assumed Liabilities; and (ii) the delivery by BioMarin to the
Vendors in accordance with Schedule 3.2 of certificates representing the
BioMarin Canadian Transaction Shares.
3.3 Allocation of Canadian Purchase Price. The Canadian Purchase Price
shall be allocated among the IBEX Pharma Canadian Assets as set out in Schedule
3.3 and the Parties shall co-operate in the filing of elections under any
applicable taxation statutes as may be necessary or desirable to give effect to
such allocation.
3.4 Goods and Services Tax. On Closing, the Vendors and BioMarin NS shall
jointly elect under subsection 167(1) of the ETA and the equivalent provisions
of the Sales Tax Act (Quebec) that no goods and services tax or Quebec sales tax
shall be payable in connection with the Canadian Transaction. BioMarin NS and
the Vendors shall make such elections in the prescribed forms and BioMarin NS
shall file the forms with requisite regulatory authorities within the time
prescribed by the ETA and Quebec sales tax legislation.
3.5 Retail Sales Tax. Within 30 days of Closing, BioMarin NS shall pay to all
relevant federal, provincial and municipal authorities, any exigible sales tax
on the IBEX Pharma Canadian Assets.
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4. CLOSING
4.1 Closing. Closing shall occur at the Time of Closing at the offices of
Cassels Brock & Blackwell LLP, Scotia Plaza, Suite 2100, 40 King Street West,
Toronto, Ontario or at such other place or other time and date as the Parties
may agree. Any cheque, document, share certificate, instrument or thing which is
to be delivered by any Party at the Closing shall be tabled at the Closing at
the place of closing referred to above by the Party that is to deliver such
cheque, document, instrument or thing and any cheque, document, share
certificate, instrument or thing so tabled by a Party shall:
(a) be deemed to have been delivered by such Party for the purposes
of this Agreement;
(b) be held in escrow by counsel for such Party to be dealt with in
accordance with paragraphs (c) and (d);
(c) be delivered to the Party to which it is to be delivered
pursuant to the terms hereof, if all cheques, documents, share
certificates, instruments and things that are to be delivered at
Closing are tabled in accordance with this section at Closing;
and
(d) be delivered to or in accordance with the directions of,
the Party which tabled it, if paragraph (c) does not apply.
5. REPRESENTATIONS AND WARRANTIES OF THE MEMBERS OF THE IBEX GROUP
5.1 Representations and Warranties. The members of IBEX Group hereby
solidarily represent and warrant to the members of the BioMarin Group as follows
and acknowledge and confirm that the members of the BioMarin Group are relying
upon such representations and warranties in connection with the Canadian
Transaction and that unless otherwise indicated herein, such representations and
warranties shall be true and correct as at the Closing Date:
(a) Organization. Each member of the IBEX Group is duly
incorporated or organized, as applicable, and validly
subsisting under the laws of its jurisdiction of incorporation
or organization and has the power (including full corporate
power as applicable) to own or lease its property and to carry
on its business as it is now being conducted. Each of the
Vendors is duly qualified to do business and carries on
business in those jurisdictions wherein the failure to so
qualify could have a Material Adverse Effect, being those
jurisdictions set forth on Schedule 5.1(a).
(b) Corporate Authority. Each of the Vendors now has and on the
Closing Date will have full power and authority (including full
corporate power and authority as applicable) to sell the IBEX
Pharma Canadian Assets, free and clear of any and all
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Encumbrances, subject to the rights of creditors pursuant to the
Bulk Sales Carve-Out. Each member of the IBEX Group now has and
on the Closing Date will have the full power and authority
(including full corporate power and authority as applicable) to
execute and deliver this Agreement and to carry out all of the
terms and conditions hereof on the part of the respective
members of the IBEX Group to be carried out. The execution and
delivery of this Agreement and the consummation of the Canadian
Transaction have been duly authorized by all necessary corporate
or entity action, including without limitation, all necessary
actions by the respective officers, directors, stockholders,
members and managers, as applicable, on the part of each member
of the IBEX Group.
(c) No Violations. The execution and delivery of this Agreement and
all other agreements contemplated herein by each member of the
IBEX Group and the observance and performance of the terms and
provisions of this Agreement and any such agreements: (i) does
not and will not require any member of the IBEX Group to obtain
or make any consent, authorization, approval, filing or
registration under any Law, subject to the Bulk Sales Carve-Out
and the procurement of the Canadian Assigned Rights Consents,
which is binding upon any member of the IBEX Group; (ii) does
not and will not constitute a violation or breach of the charter
documents, operating agreements or by-laws of any member of the
IBEX Group; (iii) does not and will not constitute a violation
or breach of any Law, subject to the Bulk Sales Carve-Out,
applicable to any member of the IBEX Group; (iv) does not and
will not constitute a default or breach (nor would with the
passage of time or the giving of notice or both or otherwise,
constitute a default or breach) under any Contract having an
aggregate value of a minimum of CDN$10,000 to which any member
of the IBEX Group is a party or by which any member of the IBEX
Group is bound, subject to procurement of the Canadian Assigned
Rights Consents; and (v) does not and will not result in the
creation or imposition of any Encumbrance on all or part of the
IBEX Pharma Canadian Assets, subject to the rights of creditors
pursuant to the Bulk Sales Carve-Out.
(d) Enforceability of Obligations. This Agreement constitutes a
valid and binding obligation of each member of the IBEX Group,
enforceable against each member of the IBEX Group in accordance
with its terms, subject however to limitations with respect to
enforcement imposed by law in connection with bankruptcy,
insolvency, reorganization or other laws affecting creditors'
rights generally.
(e) Acts of Bankruptcy. None of the members of the IBEX Group is
insolvent, has proposed a compromise or arrangement to its
creditors generally, has taken any proceeding with respect to a
compromise or arrangement, has taken any proceeding to have
itself declared bankrupt or wound-up, has taken any proceeding
to have a receiver appointed of any part of its assets and at
present, no encumbrancer or receiver has taken possession of any
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of its property and no execution or distress is enforceable or
levied upon any of its property and no petition for a receiving
order in bankruptcy is filed against it.
(f) Resident. Each of the Vendors is a resident of and
maintains its principal place of business in the country and,
as applicable, the state, province, municipality, county and
city set out in Schedule 5.1(f).
(g) Title. Each of the Vendors now has and on the Closing Date will
have good and marketable title to the IBEX Pharma Canadian
Assets to be conveyed by such Vendor and the Vendors,
collectively, now have and on the Closing Date will have good
and marketable title to all of the IBEX Pharma Canadian Assets,
in each case, free and clear of any and all Encumbrances,
subject to the rights of creditors pursuant to the Bulk Sales
Carve-Out. The Vendors (and no other member of the IBEX Group or
their respective Affiliates) are the only owners of the IBEX
Pharma Canadian Assets. Upon the transfer of the IBEX Pharma
Canadian Assets to BioMarin NS on the Closing Date pursuant to
this Agreement, BioMarin NS will acquire good and marketable
title to all of the IBEX Pharma Canadian Assets free and clear
of any and all Encumbrances, subject to the rights of creditors
pursuant to the Bulk Sales Carve-Out. Each of the Vendors is
exclusively entitled to possess and dispose of the
IBEX Pharma Canadian Assets, as the case may be. To the Best
Knowledge of the members of the IBEX Group, no other Person owns
or uses any assets that are required to carry on the IBEX Pharma
Canadian Business as currently conducted. All tangible
(corporeal) assets forming a part of the IBEX Pharma Canadian
Assets are located as indicated at Schedule 2.1(a). The IBEX
Pharma Canadian Assets represent all of the Therapeutic Assets
consisting of Intellectual Property, Contracts, Permits and
Licenses, pre-clinical and clinical trial data and books and
records which are located in Canada.
(h) Certain Interests. No member of the IBEX Group and no
shareholder, officer, director or Affiliate of any member of
the IBEX Group nor any relative or spouse (or relative of such
spouse) who resides with, or is a dependent of any such Person
owns, directly or indirectly, in whole or in part or has any
other interest in any tangible or intangible property which
any of the Vendors uses or has used in connection with the
IBEX Pharma Canadian Business.
(i) Absence of Conflicting Agreements. No Person has any
written or oral agreement, option, understanding or commitment
or any right or privilege capable of becoming an agreement,
for the purchase from any of the Vendors of any right, title
or interest in or to any of the IBEX Pharma Canadian Assets
and there has been no assignment, subletting or granting of
any license (of occupation or otherwise) of or in respect of
any of the IBEX Pharma Canadian Assets.
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(j) Suppliers. Schedule 5.1(j) contains a list of the
suppliers of materials and/or services to the Vendors in
connection with the IBEX Pharma Canadian Business during the
twelve month period ended July 31, 2001. There is no
sole-source supplier of significant materials or services to
the IBEX Pharma Canadian Business with respect to which
practical alternative sources of supply are not available on
comparable terms and conditions. There are no contingency
payments or commitments payable to any suppliers of materials
and/or services other than as indicated at Schedule 5.1(j).
(k) Clinical Sites. Schedule 5.1(k) contains a list of the
clinical sites of the Vendors in connection with the IBEX
Pharma Canadian Business during the twelve-month period ended
July 31, 2001. To the Best Knowledge of the members of the
IBEX Group, the relations between the Vendors and the clinical
sites of the IBEX Pharma Canadian Business are mutually
satisfactory. None of the members of the IBEX Group have
received written notice and, to the Actual Knowledge of the
members of IBEX Group, none of the members of the IBEX Group
have otherwise been made aware, of any possible termination of
normal relations with any such Person in connection with the
IBEX Pharma Canadian Business which termination may have a
Material Adverse Effect on the IBEX Pharma Canadian Business.
(l) Litigation. There are no Claims at Law or in equity or
before or by any Governmental Authority, either pending or
outstanding or, to the Actual Knowledge of the members of the
IBEX Group, threatened against any member of the IBEX Group,
relating to any member of the IBEX Group or which may have a
Material Adverse Effect on the IBEX Pharma Canadian Business,
any of the IBEX Pharma Canadian Assets or the Canadian
Transaction.
(m) Inventory. The IBEX Pharma Canadian Inventory
represents that proportion of the total inventory of the IBEX
Group relating to the IBEX Pharma Products set forth at
Schedule 2.1(c).
(n) Absence of Changes. Since July 31, 2000 there has not been and
up to the Closing Date there will not be;
(i) any event or occurrence which either
individually or in the aggregate with other events or
occurrences that has resulted in or will result in a
Material Adverse Effect on the condition or operation
of the IBEX Pharma Canadian Business and/or the IBEX
Pharma Canadian Assets; or
(ii) any damage, destruction or loss, labour trouble
or other event, development or condition of any
character (whether or not covered by insurance) which
would have a Material Adverse Effect on the IBEX
Pharma Canadian Business and/or the IBEX Pharma
Canadian Assets.
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(o) Absence of Unusual Transaction. Since July 31, 2000 none of the
Vendors has and up to the Closing Date none of the Vendors will
have;
(i) transferred, assigned, sold or otherwise
disposed of any of the IBEX Pharma Canadian Assets or
cancelled any debts or claims with respect thereto,
except in each case for fair consideration and in the
ordinary and usual course of the IBEX Pharma Canadian
Business;
(ii) waived any rights of substantial value or
entered into any commitment or transaction with
respect to the IBEX Pharma Canadian Assets or the
IBEX Pharma Canadian Business where such rights,
commitment or transaction is or would be material in
relation to the IBEX Pharma Canadian Business or the
IBEX Pharma Canadian Assets, as the case may be;
(iii) made any general wage or salary increases in
respect of, or material changes to the benefits, of
the Therapeutic Asset Employees, except in the
ordinary course of business;
(iv) mortgaged, pledged, subjected to lien,
hypothecated, granted a security interest in or
otherwise encumbered any of the IBEX Pharma Canadian
Assets, whether tangible or intangible, corporeal or
incorporeal;
(v) delayed or postponed the payment of accounts
payable or other Liabilities with respect to the IBEX
Pharma Canadian Assets or in connection with the IBEX
Pharma Canadian Business outside the ordinary and
usual course of the IBEX Pharma Canadian Business;
(vi) incurred any forward commitments for supplies
or materials or prepaid services in connection with
the IBEX Pharma Canadian Assets or the IBEX Pharma
Canadian Business except in the ordinary course of
the IBEX Pharma Canadian Business;
(vii) made any capital expenditures in connection with
the IBEX Pharma Canadian Assets or the IBEX Pharma
Canadian Business except in the ordinary course of
the IBEX Pharma Canadian Business; or
(viii) authorized or agreed or otherwise become committed to
do any of the foregoing.
(p) Financial Statements. A true copy of the unaudited
financial statements of IBEX and the statements of operations
and retained earnings and of changes in financial position of
IBEX as at July 31, 2001 (the "IBEX Year End"), the internally
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prepared statements of operations and retained earnings and of
changes in financial position of IBEX as at July 31, 2001 and
the audited consolidated financial statements of IBEX as at
July 31, 2000 (collectively, the "IBEX Financial Statements")
is annexed hereto as Schedule 5.1(p). The IBEX Financial
Statements:
(i) Have been prepared in accordance with Canadian
generally accepted accounting principles applied on a
basis consistent with those of the preceding fiscal
period.
(ii) Present fairly, among other things, the IBEX Pharma
Canadian Assets, liabilities and financial position
of IBEX (on a consolidated basis) as at the IBEX Year
End and the period indicated, as the case may be and
the results of operations for the period then ended.
Other than as disclosed in the Schedules hereto, and
the liabilities specified in the balance sheet
forming part of the IBEX Financial Statements or
incurred since the IBEX Year End in the ordinary
course of business (all of which are consistent
with past practice and are not, in the aggregate
material to the financial condition of the members of
the IBEX Group) or otherwise noted or disclosed in
this Agreement, there are no liabilities or
obligations of any of the members of the IBEX
Group (whether absolute, contingent or otherwise),
including without limitation, any Tax liabilities,
due or to become due or contingent losses for
unasserted claims which are capable of assertion,
which may be and become the responsibility or
obligation of BioMarin NS from and after the Closing
Date.
(iii) Are substantially in accordance with the books and
records of IBEX (on a consolidated basis).
(iv) Contain and reflect all necessary adjustments
for a fair presentation of the results of operations
and financial position of IBEX (on a consolidated
basis) for the period covered thereby.
(v) Contain and reflect adequate provision or
allowance for all reasonably anticipated liabilities,
expenses and losses of IBEX (on a consolidated
basis).
(q) Books of Account. The books of account and financial
records of the Vendors fairly set out and disclose in all
material respects the current financial position of the IBEX
Pharma Canadian Business. All material transactions with
respect to the IBEX Pharma Canadian Assets and the IBEX Pharma
Canadian Business have been accurately recorded in such books
and records. All bonuses, commissions and other payments
relating to the Therapeutic Asset Employees are reflected in
the books of IBEX in a manner consistent with past record
keeping practices and none of such payables are in arrears.
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(r) Permits and Licenses. Schedule 5.1(r) contains a full, complete
and accurate list of permits, certificates, licenses,
approvals, consents and other authorizations (collectively,
the "Permits and Licenses") obtained to carry on and conduct
the IBEX Pharma Canadian Business and to own, lease or
operate its respective IBEX Pharma Canadian Assets at the
places and in the manner in which the IBEX Pharma Canadian
Business is currently conducted. The consummation of the
Canadian Transaction will not result in the revocation,
suspension or limitation of any of the Permits and Licenses.
The conduct of the IBEX Pharma Canadian Business as
currently conducted by IBEX is not impeded by the absence of
any Permit or License and the members of the IBEX Group are
not aware of any Permits or Licenses required to carry on
and conduct the IBEX Pharma Canadian Business as currently
conducted other than as itemized in Schedule 5.1(r).
(s) Material Contracts. Except for the Contracts listed in Schedule
5.1(s), no member of the IBEX Group or any of its Affiliates
is a party to nor bound by any Contract with respect to the
IBEX Pharma Canadian Assets, the IBEX Group Worldwide Assets
(as defined in the US Purchase Agreement), the IBEX Pharma
Canadian Business or the IBEX Group Worldwide Business (as
defined in the US Purchase Agreement). Schedule 5.1(s)
additionally sets forth a true and complete list of all
Canadian Assigned Rights and Worldwide Assigned Rights (as
defined on the US Purchase Agreement) requiring the consent
of any party thereto as a result of the Canadian Transaction
or the Worldwide Transaction (as defined in the US Purchase
Agreement) and all additional consents, authorizations and
approvals of any Person to or as a result of the
consummation of the Canadian Transaction. All such consents,
authorizations and approvals described in Schedule 5.1(s)
will be lawfully and validly obtained prior to or after the
Closing Date (as indicated in such Schedule). For greater
certainty and without limitation, IBEX Pharma has no
unfilled orders in connection with the IBEX Pharma Canadian
Business and no forward commitments for suppliers or
materials. The Contracts listed in Schedule 5.1(s) having a
minimum aggregate value of CDN$10,000 are all in full force
and effect, unamended and no material default or breach
exists (nor would the passage of time or the giving of
notice of both or otherwise, constitute a default or breach)
in respect thereof on the part of any of the parties
thereto. No member of the IBEX Group has entered into any
Contract limiting or restricting the IBEX Pharma Canadian
Business.
(t) Employees, etc. There are set forth in Schedule 5.1(t)
the names and titles of all Therapeutic Asset Employees
employed or engaged by the members of the IBEX Group in
connection with the IBEX Pharma Canadian Business including
without limitation, the Therapeutic Asset Employees, together
with particulars of the material terms and conditions of
employment or engagement of such persons, including without
limitation, rates of remuneration, benefits, all accrued
and/or deferred compensation, benefits and remuneration,
positions held and the length of their employment.
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(u) Employee Plans. Except as set forth in Schedule 5.1(u),
there are no Employee Plans with respect to the Therapeutic
Asset Employees. All obligations of each of the Vendors,
whether arising by operation of Law, by contract, pursuant to
the Employee Plans, by past custom or practice or otherwise,
for salary, severance, vacation and holiday pay, bonuses and
other forms of compensation which were payable to the
Therapeutic Asset Employees for the period ending prior to the
Closing Date, have been paid as of the applicable payment
dates.
(v) Collective Agreements. None of the Vendors nor their
Affiliates has made any agreements with any labour union or
employee association with respect to any of its employees
(including any Therapeutic Asset Employees) and none of the
Vendors nor their Affiliates has made commitments to or
conducted negotiations with any labour union or employee
association further to any future agreements with respect to
any of its employees (including any Therapeutic Asset
Employees). To the Best Knowledge of each member of the IBEX
Group, there are no current attempts to organize or to
establish any labour union or employee association with
respect to the Therapeutic Asset Employees.
(w) Labour Matters. There are no controversies pending or to the
Best Knowledge of each Vendor, threatened between any
member of the IBEX Group or their Affiliates and any of the
Therapeutic Asset Employees.
(x) Insurance. Each of the Vendors maintains such policies of
insurance, issued by responsible insurers, as are
appropriate to the IBEX Pharma Canadian Business and the
IBEX Pharma Canadian Assets, in such amounts and against
such risks as are customarily carried and insured against by
owners of comparable businesses, properties and assets. All
such policies of insurance are in full force and effect and
none of the Vendors is in default thereof, whether as to the
payment of premiums or otherwise under the terms of any such
policy. All of such policies are listed in Schedule 5.1(x).
All premiums in connection with such policies are fully
paid. None of the Vendors has failed to give any notice or
present any Claim under any such insurance policies in due
and timely fashion. The proceeds of such policies are and
until Closing shall continue to be fully payable to the
Vendors. None of the Vendors is in default with respect to
any of the provisions contained in such insurance policies
and none of the Vendors have failed to give any notice or
present any claim under any such insurance policies in due
and timely fashion.
(y) Taxes. There are no liens or prior Claims for Taxes
upon any of the IBEX Pharma Canadian Assets. Schedule 5.1(y)
sets forth all Taxes upon the IBEX Pharma Canadian Assets
currently due and payable and, to the Best Knowledge of the
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members of the IBEX Group, all Taxes upon the IBEX Pharma
Canadian Assets which will become payable in the next six
months, except as may result from the Canadian Transaction.
(z) Compliance with Laws. The IBEX Pharma Canadian Business has
been conducted and will continue to be conducted through Closing
in accordance with all applicable Laws and Governmental Orders,
except where the failure to comply with such Laws and
Governmental Orders would not have a material adverse effect on
the IBEX Pharma Canadian Assets or the conditions, operations or
prospects of the IBEX Pharma Canadian Business and the Vendors
have not received any notice in writing and, to the Actual
Knowledge of members of the IBEX Group, the members of the IBEX
Group have not otherwise received any notice that the IBEX
Pharma Canadian Business is in violation of any such Law or
Governmental Order. There are no Governmental Orders applicable
to the IBEX Pharma Canadian Assets and/or the IBEX Pharma
Canadian Business.
(aa) Environmental Matters. Each of the Vendors is in compliance
with all Environmental Laws.
(i) Without limiting the generality of the
foregoing, each of the Vendors and their respective
Affiliates has obtained and complied with, and is in
compliance with, all Environmental Permits for the
occupation of its facilities and the operation of the
IBEX Pharma Canadian Business. A list of all such
Environmental Permits are set forth on Schedule
5.1(aa).
(ii) With respect to the IBEX Pharma Canadian
Business, the IBEX Pharma Canadian Assets and the
leased premises of IBEX located in Pare Street in the
Town of Mount Royal, Quebec, none of the Vendors nor
their respective Affiliates has received any written
notice, report or other information regarding any
actual or alleged violation of any Environmental Law,
or any liabilities or potential liabilities (whether
accrued, absolute, contingent, unliquidated or
otherwise), including any investigatory, remedial or
corrective obligations, relating to any of them or
their facilities arising under any Environmental Law.
(iii) With respect to the IBEX Pharma Canadian
Business, the IBEX Pharma Canadian Assets and the
leased premises of IBEX located in Pare Street in the
Town of Mount Royal, Quebec, none of the Vendors or
their respective Affiliates has treated, stored,
disposed of, arranged for or permitted the disposal
of, transported, handled or released any substance,
including without limitation, any Hazardous Materials
in a manner that has given or would give rise to
liabilities, including any liability for response
costs, corrective action costs, personal injury,
property damage, natural resources damages or
attorney fees, pursuant to Environmental Law.
-22-
(iv) With respect to the IBEX Pharma Canadian
Business, the IBEX Pharma Canadian Assets and the
leased premises of IBEX located in Pare Street in the
Town of Mount Royal, Quebec, neither the execution
and delivery of this Agreement nor the consummation
of the Canadian Transaction will result in any
obligations for site investigation or cleanup or
notification to or consent of Government Authorities
or third Persons, pursuant to any of the so-called
"transaction-triggered" or "responsible property
transfer" Environmental Law.
(v) With respect to the IBEX Pharma Canadian
Business, the IBEX Pharma Canadian Assets and the
leased premises of IBEX located in Pare Street in the
Town of Mount Royal, Quebec, neither the Vendors nor
any of their respective Affiliates has either
expressly or by operation of law assumed or
undertaken any liability, including without
limitation, any obligation for corrective or remedial
action of any other Person relating to Environmental
Laws.
(bb) IBEX Group Canadian Intellectual Property.
(i) The Vendors, collectively, own all right, title and
interest in or have the right to use pursuant to a
valid license, sublicense agreement or permission,
all of the IBEX Group Canadian Intellectual Property
used in the conduct of the IBEX Pharma Canadian
Business as presently conducted and have the right to
use, execute, reproduce, display, perform, modify,
enhance, distribute, prepare derivative works from
and sublicense the IBEX Group Canadian Intellectual
Property, without requirement to make royalty or
other payments to any other Person (except in the
case of the IBEX Group Canadian Intellectual Property
licensed by any of the Vendors from a third Person
licensor where the terms of such license make
provision for royalties or other payments and the
terms of such royalties or other payments are listed
on Schedule 5.1(bb)(i)). Schedule 2.1(d) sets forth a
true and complete list of all of the Intellectual
Property used in the current conduct of the IBEX
Pharma Canadian Business and all other filings,
applications, registrations or other formal actions
taken with respect to the foregoing pursuant to
federal, state, local and foreign law or regulations
with respect to protections of intellectual property
as well as a nonconfidential disclosure of inventions
owned and used in the current conduct of the IBEX
Pharma Canadian Business, provided that such
schedules shall in no way limit the IBEX Group
Canadian Intellectual Property to be transferred to
BioMarin NS pursuant to this Agreement. None of the
Vendors has received written notice of any loss,
cancellation, termination or expiration of any such
application, registration or other filings or formal
actions that are owned or controlled by any of the
Vendors in connection with the IBEX Pharma Canadian
Business.
-23-
(ii) No member of the IBEX Group has received any written
and, to the Actual Knowledge of the members of the
IBEX Group, no members of the IBEX Group has received
any oral, communication alleging that the operation
of the IBEX Pharma Canadian Business as currently
conducted, the use of the IBEX Group Canadian
Intellectual Property in connection therewith and the
transmission, use, linking and other practices
related to the operation of the Vendors' respective
web sites in connection with the IBEX Pharma
Canadian Business, the content thereof and the
advertisements contained therein, conflict with,
infringe, misappropriate or otherwise violate third
Person Intellectual Property or other proprietary
rights, including rights of privacy, publicity and
endorsement of any third Person and no Claims are
pending or, to the Actual Knowledge of the members of
the IBEX Group, threatened against any of the Vendors
or their Affiliates alleging any of the foregoing. No
member of the IBEX Group has received any written
and, to the Actual Knowledge of the members of the
IBEX Group, no members of the IBEX Group has received
any oral, communication alleging that any member of
the IBEX Group has violated or misappropriated any
rights relating to third Person Intellectual Property
nor has any reason to believe that any member of the
IBEX Group has violated or is violating or
misappropriating any rights relating to third
Person Intellectual Property, except as disclosed in
Schedule 5.1(bb)(ii). The IBEX Group Canadian
Intellectual Property includes all of the
Intellectual Property used in the ordinary day-to-day
conduct of the IBEX Pharma Canadian Business. Each
item of the IBEX Group Canadian Intellectual Property
is subsisting, valid and enforceable and has not been
adjudged invalid or unenforceable in whole or part.
All registrations and filings related to the IBEX
Group Canadian Intellectual Property owned by members
of the IBEX Group are in good standing and all
maintenance and renewal fees necessary to preserve
the rights of the IBEX Group in respect of the IBEX
Group Canadian Intellectual Property have been paid.
Except as disclosed in Schedule 5.1(bb)(ii), no Claim
has been asserted or is pending or, to the Actual
Knowledge of the members of the IBEX Group,
threatened against any of the Vendors or their
Affiliates based upon or challenging or seeking to
deny or restrict the use by any of the Vendors or
their Affiliates of any of the IBEX Group Canadian
Intellectual Property or alleging that any services
provided by processes used by, or products
manufactured or sold by any of the Vendors infringe
or misappropriate any third Person Intellectual
Property nor to the Actual Knowledge of the members
of the IBEX Group is there any reasonable basis upon
which any such material Claim might at any time be
founded.
-24-
(iii) To the Best Knowledge of each of the members of the
IBEX Group, the Software forming part of the
IBEX Group Canadian Intellectual Property, which
may contain viruses, worms, Trojan horses and other
material known contaminants, do not disrupt its
operation because the IBEX Group possesses and uses
anti virus software in connection therewith. No
rights in the Software forming part of the IBEX Group
Canadian Intellectual Property have been transferred
to any third Person. Each of the Vendors has the
right to use all Software development tools, library
functions, compilers and other third Person software
that are material to the IBEX Pharma Canadian
Business or that are required to operate or modify
the Software forming part of the IBEX Group Canadian
Intellectual Property.
(iv) Each of the Vendors and their Affiliates has taken
reasonable steps in accordance with normal industry
practice to maintain the confidentiality of the trade
secrets and other confidential Intellectual Property
used in connection with the IBEX Pharma Canadian
Business. To the Best Knowledge of the members of the
IBEX Group there has been no misappropriation of any
material trade secrets or other material confidential
Intellectual Property used in connection with the
IBEX Pharma Canadian Business by any Person. To the
Best Knowledge of the members of the IBEX Group, no
employee, independent contractor or agent of any
member of the IBEX Group has misappropriated any
trade secrets of any other Person in the course of
the performance of its duties as an employee,
independent contractor or agent and no employee,
independent contractor or agent of any member of the
IBEX Group is in default or breach of any term of any
employment agreement, non-disclosure agreement,
assignment of invention agreement or similar
agreement or contract relating in any way to the
protection, ownership, development, use or transfer
of intellectual property.
(v) Each employee and independent contractor of
any member of the IBEX Group has executed a valid and
binding assignment of all rights they may hold
related to the IBEX Group Canadian Intellectual
Property. Each employee and independent contractor of
any member of the IBEX Group has executed a valid and
binding confidentiality agreement pursuant to which
he has agreed to protect the confidential nature of
the IBEX Group Canadian Intellectual Property and all
other confidential information of any member of the
IBEX Group or relating to any of the IBEX Pharma
Canadian Assets.
-25-
(cc) No Brokers. There is no broker, finder or other
intermediary acting on behalf of any member of the IBEX Group
who has or will have a Claim against the members of the
BioMarin Group for a brokerage commission, finder's fee or
other like payment for the Canadian Transaction and as and by
way of a post-closing covenant the members of the IBEX Group
will solidarily indemnify and save harmless the members of the
BioMarin Group of and from any such Claim.
(dd) Omissions and Misrepresentations. None of the foregoing
representations and warranties contains any untrue statement
of material fact or omits to state any material fact necessary
to make any such warranty or representation not misleading.
5.2 Investment Representations. Each Vendor hereby solidarily represents
and warrants to BioMarin that:
(a) Such Vendor is acquiring the BioMarin Canadian
Transaction Shares for investment purposes only, for its own
account and not as nominee or agent for any other Person and
not with the view to or for resale in connection with any
distribution thereof within the meaning of the Securities Act.
(b) Such Vendor knows of no public solicitation or
advertisement of an offer in connection with the BioMarin
Canadian Transaction Shares.
(c) Such Vendor has carefully reviewed this Agreement.
During the course of the Canadian Transaction and prior to the
purchase of the BioMarin Canadian Transaction Shares, such
Vendor has had the opportunity to ask questions of and receive
answers from BioMarin concerning the terms and conditions of
the Canadian Transaction and to obtain additional information
concerning the Canadian Transaction, BioMarin and the BioMarin
Canadian Transaction Shares. Such Vendor has received all
information that it has requested regarding BioMarin and
believes that such information is sufficient to make an
informed decision with respect to the purchase of the BioMarin
Canadian Transaction Shares.
(d) Such Vendor is able to bear the economic risk of its
investment in the BioMarin Canadian Transaction Shares and has
such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks
of and protecting its interests with respect to its investment
in the BioMarin Canadian Transaction Shares. Such Vendor is
aware of the risk involved in its investment in the BioMarin
Canadian Transaction Shares and has determined that such
investment is suitable for such Vendor in light of its
financial circumstances and available investment
opportunities.
(e) Such Vendor is an "accredited investor" as that term is defined
in Rule 501 of Regulation D promulgated under the Securities
Act.
-26-
(f) The purchase by such Vendor of the BioMarin Canadian
Transaction Shares hereunder does not violate or conflict with
any Law applicable to such Vendor.
(g) Each Vendor hereby further agrees with BioMarin that
the instruments or certificates evidencing the BioMarin
Canadian Transaction Shares and each instrument or certificate
issued in transfer thereof will bear the following legend:
"The securities evidenced by this certificate have
not been registered under the Securities Act of 1933
and have been taken for investment purposes only and
not with a view to the distribution thereof, and,
except as stated in an agreement between the holder
of this certificate, or its predecessor in interest,
and the issuer corporation, such securities may not
be sold or transferred unless there is an effective
registration statement under such Act covering such
securities or the issuer corporation receives an
opinion, in form and content reasonably satisfactory
to the issuer corporation, of counsel reasonably
acceptable to the issuer corporation (which may be
counsel for the issuer corporation) stating that such
sale or transfer is exempt from the registration and
prospectus delivery requirements of such Act."
(h) The instruments or certificates representing the
BioMarin Canadian Transaction Shares and each instrument or
certificate issued in transfer thereof will also bear any
legend required under any applicable state securities law.
(i) Prior to any proposed sale, assignment, transfer or pledge of
any of the BioMarin Canadian Transaction Shares by such
Vendor, unless there is in effect a registration statement
under the Securities Act covering the proposed transfer,
such Vendor shall give written notice to BioMarin of such
Vendor's intention to effect such transfer, sale, assignment
or pledge. Each such notice shall describe the manner and
circumstances of the proposed transfer, sale, assignment or
pledge in sufficient detail and shall be accompanied, at
such Vendor's expense, by an unqualified written opinion of
legal counsel who shall and whose legal opinion shall be
reasonably satisfactory to BioMarin addressed to BioMarin
(which may be counsel for BioMarin), to the effect that the
proposed transfer of the BioMarin Canadian Transaction
Shares may be effected without registration under the
Securities Act, whereupon the holder of such BioMarin
Canadian Transaction Shares shall be entitled to transfer
such BioMarin Canadian Transaction Shares in accordance with
the terms of the notice delivered by such Vendor to
BioMarin.
-27-
(j) Such Vendor consents to BioMarin's making a notation on
its records or giving instructions to any transfer agent of
its common stock in order to implement the restrictions on
transfer of the BioMarin Canadian Transaction Shares mentioned
above.
(k) Such Vendor is aware that the BioMarin Canadian
Transaction Shares are being issued and sold in reliance on an
exemption from the registration requirements of the Securities
Act and that such exemption is expressly conditioned on the
accuracy of the representations and warranties contained in
this section 5.2.
(l) Such Vendor is not a company established solely to acquire the
BioMarin Canadian Transaction Shares.
(m) Such Vendor has been independently advised as to restrictions
with respect to the trading in the BioMarin Canadian
Transaction Shares in Canada imposed by applicable Canadian
securities legislation, confirms that: (i) no representation
has been made to it by or on behalf of BioMarin; (ii)
BioMarin is not a "reporting issuer" in any jurisdiction in
Canada; (iii) the applicable "hold period", under the
applicable securities law of Canada will not commence until
BioMarin becomes a "reporting issuer" in the province of
residence of such Vendor and such Vendor will not be able to
resell the BioMarin Canadian Transaction Shares except in
accordance with limited exemptions under applicable
securities legislation regulatory policy; and (iv) the
BioMarin Canadian Transaction Shares will be subject to
resale restrictions.
6. REPRESENTATIONS AND WARRANTIES OF THE MEMBERS OF THE BIOMARIN GROUP
6.1 Representations and Warranties. The members of the BioMarin Group
hereby solidarily represent and warrant to the members of the IBEX Group as
follows and acknowledge and confirm that the members of the IBEX Group are
relying upon such representations and warranties in connection with the Canadian
Transaction and that unless otherwise indicated herein, such representations and
warranties shall be true and correct as at the Closing Date:
(a) Organization. Each of the members of the BioMarin Group
is duly incorporated and validly subsisting under the laws of
its jurisdiction of incorporation and has the power (including
full corporate power) to own or lease its property and to
carry on its business as it is now being conducted.
(b) Corporate Authority. Each of the members of the
BioMarin Group now has and on the Closing Date will have full
power and authority (including full corporate power and
authority) to execute and deliver this Agreement and to carry
out all of the terms and conditions hereof on the part of the
-28-
members of the BioMarin Group to be carried out. The execution
and delivery of this Agreement and the consummation of the
Canadian Transaction have been duly authorized by all
necessary corporate action on the part of the members of the
BioMarin Group, including without limitation, all necessary
action by the respective officers, directors, and
stockholders, as applicable.
(c) No Violations. The execution and delivery of this Agreement
and all other agreements contemplated herein by the members
of the BioMarin Group and the observance and performance of
the terms and provisions of this Agreement and any such
agreements: (i) does not and will not require the members of
the BioMarin Group to obtain or make any consent,
authorization, approval, filing or registration under any
Law which is binding upon any member of the BioMarin Group;
(ii) does not and will not constitute a violation or breach
of the charter documents, operating agreements or by-laws of
any member of the BioMarin Group; (iii) does not and will
not constitute a violation or breach of any Law applicable
to any member of the BioMarin Group; and (iv) does not and
will not constitute a default or breach (nor would with the
passage of time or the giving of notice or both or
otherwise, constitute a default) under any Contract to which
any member of the BioMarin Group is a party, except where
such default would not have a Material Adverse Effect on any
member of the BioMarin Group.
(d) Enforceability of Obligations. This Agreement constitutes a
valid and legally binding obligation of each member of the
BioMarin Group, enforceable against each member of the
BioMarin Group in accordance with its terms, subject however
to limitations with respect to enforcement imposed by law in
connection with bankruptcy, insolvency, reorganization or
other laws affecting creditors' rights generally.
(e) Acts of Bankruptcy. None of the members of the BioMarin
Group is insolvent, has proposed a compromise or arrangement
to its creditors generally, has taken any proceeding with
respect to a compromise or arrangement, has taken any
proceeding to have itself declared bankrupt or wound-up, has
taken any proceeding to have a receiver appointed of any part
of its assets and at present, no encumbrancer or receiver has
taken possession of any of its property and no execution or
distress is enforceable or levied upon any of its property and
no petition for a receiving order in bankruptcy is filed
against it.
(f) Resident. Each member of the BioMarin Group is a
resident of and maintains its principal place of business in
the country and, as applicable, the state, province, country
and city set out in Schedule 6.1(f).
(g) BioMarin Canadian Transaction Shares. The BioMarin Canadian
Transaction Shares and the Underlying Securities are duly
authorized and, in the case of the BioMarin Canadian
Transaction Shares, when issued and paid for in accordance
-29-
with the terms of this Agreement or, in the case of the
Underlying Securities, when issued and paid for in
accordance with the terms of the BioMarin Options, will be
duly authorized, validly issued and outstanding, fully paid
and non-assessable and free and clear of all Encumbrances,
other than Encumbrances which might have been created or
suffered by the Vendors and restrictions imposed by the
Securities Act, other securities laws or this Agreement.
(h) Regulatory Approvals. Based in part on the
representations and warranties made by the members of the IBEX
Group in section 5.2, no authorization from any Governmental
Authority is required on the part of BioMarin in connection
with the issuance of the BioMarin Canadian Transaction Shares,
the BioMarin Options and the Underlying Securities, save and
except for the Quebec Securities Commission Approvals referred
to in section 12.1(k) hereof.
(i) Registrant Status. No securities commission or similar
regulatory authority has issued any order preventing or
suspending trading in any securities of BioMarin or
prohibiting the issue and sale of the BioMarin Canadian
Transaction Shares and to the Best Knowledge of the members of
the BioMarin Group, no such proceedings for such purposes are
pending or threatened.
(j) Litigation There are no Claims at Law or in equity or
before or by any Governmental Authority either threatened,
pending, outstanding or contemplated against any member of the
BioMarin Group or relating to or which may have a Material
Adverse Effect on any member of the BioMarin Group nor to the
Best Knowledge of any member of the BioMarin Group, is there
any basis upon which any such Claims might at any time in the
future be founded.
(k) Financial Statements. A true copy of the consolidated
balance sheets of BioMarin and the consolidated statements of
operations and consolidated statements of changes in
stockholder equity and the consolidated statements of cash
flows (the "BioMarin Financial Statements") as of December 31,
2000 (the "BioMarin Year End") is annexed hereto as Schedule
6.1(k). The BioMarin Financial Statements:
(i) Have been prepared in accordance with United
States generally accepted accounting principles
applied on a basis consistent with those of the
preceding fiscal period.
(ii) Present fairly, among other things, the assets,
liabilities and financial position of BioMarin as at
the BioMarin Year End and the results of operations
for the period then ended.
(iii) Are substantially in accordance with the books and
records of BioMarin (on a consolidated basis).
-30-
(l) Compliance with Laws. Each member of the BioMarin Group
has been carrying on business in all material respects in
accordance with all applicable Laws and Governmental Orders
and no member of the BioMarin Group is in violation of any
such Law or Governmental Order, except where such violation
would not have a Material Adverse Effect on the members of the
BioMarin Group.
(m) No Brokers. There is no broker, finder or other
intermediary acting on behalf of any member of the BioMarin
Group, other than Leerink, Swann & Associates, who has or will
have a claim against the members of the IBEX Group for a
brokerage commission, finders' fee or other like payment for
the Canadian Transaction and as and by way of a post-closing
covenant the members of the BioMarin Group will solidarily
indemnify and save harmless the members of the IBEX Group of
and from such Claim.
(n) Reporting Status; No Termination of Registration. Except as
set forth on Schedule 6.1(n) hereto, BioMarin has filed in a
timely manner all documents that BioMarin was required to
file under the Exchange Act during the 24 months preceding
the date of this Agreement and such documents complied in
all material respects with the Commission's requirements as
of their respective filing dates, and the information
contained therein as of the date thereof did not contain any
untrue statement of a material fact or omit to state 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. BioMarin has not
received notice of the issuance by the Commission of any
stop order suspending the qualification of any shares of
BioMarin common stock for offering or sale in any
jurisdiction or the initiation of any proceeding for such
purpose.
7. Registration of BioMarin Canadian Transaction Shares
7.1 Required Registration.
(a) Within five days following the Closing Date, BioMarin
shall prepare and file a registration statement on Form S-3
under the Securities Act, covering the BioMarin Canadian
Transaction Shares and shall use its best efforts to cause
such registration statement to become effective as
expeditiously as possible and to remain effective until the
earliest to occur of: (i) the date the BioMarin Canadian
Transaction Shares covered thereby have been sold; (ii) the
date by which all BioMarin Canadian Transaction Shares covered
thereby may be sold under Rule 144 without restriction as to
volume; or (iii) the date which is the twenty-fourth month
anniversary of the Closing Date.
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(b) Following the effectiveness of a registration statement filed
pursuant to this section, BioMarin may at any time suspend
the effectiveness of such registration for up to 60 days, as
appropriate (a "Suspension Period"), by giving notice to the
Vendors, if BioMarin shall have determined that BioMarin may
be required to disclose any material corporate development
which disclosure may have a Material Adverse Effect on
BioMarin. Notwithstanding the foregoing, no more than two
Suspension Periods may occur during any 12 month period.
BioMarin shall use its best efforts to limit the duration
and number of any Suspension Periods. The Vendors agree that
upon receipt of any notice from BioMarin of a Suspension
Period, the Vendors shall forthwith discontinue disposition
of BioMarin Canadian Transaction Shares covered by such
registration statement or prospectus until the Vendors: (i)
are advised in writing by BioMarin that the use of the
applicable prospectus may be resumed; (ii) have received
copies of a supplemental or amended prospectus, if
applicable; and (iii) have received copies of any additional
or supplemental filings which are incorporated or deemed to
be incorporated by reference into such prospectus.
7.2 Registration Procedures. At such time as BioMarin effects the registration
of the BioMarin Canadian Transaction Shares under the Securities Act pursuant to
section 7.1(a) BioMarin will, at its expense and as expeditiously as possible;
(a) In accordance with the Securities Act and the rules and
regulations of the Commission, prepare and file in accordance
with section 7.1(a) a registration statement with respect to
the BioMarin Canadian Transaction Shares and will use its best
efforts to cause such registration statement to become and
remain effective for the period described herein and BioMarin
will prepare and file with the Commission such amendments to
such registration statement and supplements to the prospectus
contained therein as may be necessary to keep such
registration statement effective for such period and such
registration statement and prospectus accurate and complete
for such period.
(b) Furnish to the Vendors participating in such
registration such reasonable number of copies of the
registration statement, preliminary prospectus, final
prospectus and such other documents as such Vendors may
reasonably request in order to facilitate the public offering
of the BioMarin Canadian Transaction Shares.
(c) Use its best efforts to register or qualify the
BioMarin Canadian Transaction Shares covered by such
registration statement under such state securities or blue sky
laws of such jurisdictions as such participating Vendors may
reasonably request within 20 days following the original
filing of such registration statement, except that BioMarin
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.
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(d) Notify the Vendors participating in such registration,
promptly after BioMarin shall receive notice thereof, of the
date and time when such registration statement and each
post-effective amendment thereto has become effective or a
supplement to any prospectus forming a part of such
registration statement has been filed.
(e) Notify such Vendors promptly of any request by the
Commission for the amending or supplementing of such
registration statement or prospectus or for additional
information.
(f) Prepare and file with the Commission, promptly upon the
request of any such Vendors, any amendments or supplements to
such registration statement or prospectus which, in the
opinion of counsel for such Vendors, is required under the
Securities Act or the rules and regulations thereunder in
connection with the distribution of the BioMarin Canadian
Transaction Shares by such Vendors.
(g) Prepare and promptly file with the Commission and
promptly notify such Vendors of the filing of, such amendments
or supplements 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 prospectus or any
other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(h) Advise such Vendors, promptly after BioMarin shall
receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission 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.
7.3 Covenant Regarding Disposition of BioMarin Shares. Following the
effectiveness of a registration statement filed pursuant to section 7.1 and
without limitation of the provisions of section 7.1(b), the Vendors solidarily
covenant and agree that any disposition of the BioMarin Canadian Transaction
Shares shall be made in a manner that does not unduly prejudice the trading
price of BioMarin's common stock on the Nasdaq National Market or the SWX Swiss
Market.
7.4 Indemnification.
(a) BioMarin will indemnify and hold harmless each Vendor which is
an owner of shares of BioMarin Canadian Transaction Shares
included in a registration statement pursuant to the provisions
of Article 7 hereof, and any officer, director, employee, agent,
partner, member or affiliate of such Vendor (for purposes of
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this section 7.4(a), the "Indemnified Parties"), from and
against, and will reimburse such Vendor and each such
Indemnified Party with respect to, any and all claims, actions,
demands, losses, damages, liabilities, costs and expenses to
which such Vendor or any such Indemnified Party may become
subject under the Securities Act or otherwise, insofar as such
claims, actions, demands, losses, damages, liabilities, costs or
expenses arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that
BioMarin will not be liable in any such case to the extent that
any such claim, action, demand, loss, damage, liability, cost or
expense is caused by an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity
with information furnished by such Vendor or such Indemnified
Party in writing specifically for use in the preparation
thereof.
(b) Each Vendor which is an owner of shares of BioMarin Canadian
Transaction Shares included in a registration statement
pursuant to the provisions of Article 7 hereof will
indemnify and hold harmless BioMarin, and any Person who
controls BioMarin within the meaning of the Securities Act,
from and against, and will reimburse BioMarin and such
controlling Persons with respect to, any and all losses,
damages, liabilities, costs or expenses to which BioMarin or
such controlling Person may become subject under the
Securities Act or otherwise, insofar as such losses,
damages, liabilities, costs or expenses are caused by any
untrue or alleged untrue statement of any material fact
contained in such registration statement, any prospectus
contained therein or any amendment or supplement thereto, or
are caused by the omission or the 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, in
each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or
alleged omission was so made solely in reliance upon and in
conformity with written information furnished by such Vendor
specifically for use in the preparation thereof; provided,
however, that the liability of any Vendor pursuant to this
subsection (b) shall be limited to an amount not to exceed
the net proceeds received by such Vendor pursuant to the
registration statement which gives rise to such obligation
to indemnify.
(c) Promptly after receipt by a party indemnified pursuant to the
provisions of paragraph (a) or (b) of this section 7.4 of
notice of the commencement of any action involving the
subject matter of the foregoing indemnity provisions, such
indemnified party will, if a claim thereof is to be made
against the indemnifying party pursuant to the provisions of
paragraph (a) or (b), notify the indemnifying party of the
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commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability
which it may have to an indemnified party otherwise than
under this section 7.4 and shall not relieve the
indemnifying party from liability under this section 7.4
unless such indemnifying party is prejudiced by such
omission. In case such action is brought against any
indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party shall have
the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified
party pursuant to the provisions of such paragraph (a) or
(b) for any legal or other expense subsequently incurred by
such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No
indemnifying party shall be liable to an indemnified party
for any settlement of any action or claim without the
consent of the indemnifying party. No indemnifying party
will 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
to such claim or litigation. (d) If the indemnification
provided for in subsection (a) or (b) of this section 7.4 is
held by a court of competent jurisdiction to be unavailable
to a party to be indemnified with respect to any claims,
actions, demands, losses, damages, liabilities, costs or
expenses referred to therein, then each indemnifying party
under any such subsection, in lieu of indemnifying such
indemnified party thereunder, hereby agrees to contribute to
the amount paid or payable by such indemnified party as a
result of such claims, actions, demands, losses, damages,
liabilities, costs or expenses in such proportion as is
appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or
omissions which resulted in such claims, actions, demands,
losses, damages, liabilities, costs or expenses, as well as
any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party
shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material
fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount
any Vendor shall be obligated to contribute pursuant to this
subsection (d) shall be limited to an amount not to exceed
the net proceeds received by such Vendor pursuant to the
registration statement which gives rise to such obligation
to contribute. No person guilty of fraudulent
misrepresentation (within the meaning of section 11(f) of
the Securities Act) shall be entitled to contribution
hereunder from any person who was not guilty of such
fraudulent misrepresentation.
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8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
8.1 Survival. No investigations made by or on behalf of any Party at any
time shall have the effect of waiving, diminishing the scope of or otherwise
affecting any representation or warranty made by any Party. No waiver by any
Party of any condition, in whole or in part, shall operate as a waiver of any
other condition. The representations and warranties contained in Article 5 and 6
respectively or in any certificate or other document delivered in connection
with the Closing shall survive the making of this Agreement and the Closing as
to the representations and warranties contained in section 5.1(g), 5.1(l),
5.1(y) and 5.1(bb), for a period of six years; and as to all other
representations and warranties, for a period of three years following the
Closing unless a bona fide notice of a Claim shall have been given in writing
prior to the expiry of that period, in which case the representations and
warranties to which such notice applies shall survive in respect of that Claim
until the final determination or the applicable settlement, in each case, of
that Claim.
9. COVENANTS
9.1 Interim Covenants. From the date hereof and up to and including the
Closing Date or other termination of this Agreement, except as otherwise
consented to in writing by the members of the BioMarin Group, the members of the
IBEX Group shall solidarily observe and perform the provisions stated below:
(a) Operations. The Vendors shall carry on the IBEX Pharma
Canadian Business in the usual and ordinary course in
substantially the same manner as heretofore conducted and
shall preserve their relationships with customers, suppliers
and third Persons having business dealings with the Vendors
and shall take any and all such further actions reasonably
requested by the members of the BioMarin Group to the end that
the IBEX Pharma Canadian Business shall not be impaired in any
material respect on the Closing Date.
(b) Insurance. The Vendors shall keep in full force their
current insurance policies relating to the IBEX Pharma
Canadian Assets and the IBEX Pharma Canadian Business without
permitting any termination, cancellation or lapse thereof and
the Vendors shall enter into replacement policies providing
coverage equal to or greater than the coverage under those
cancelled, terminated or lapsed policies for substantially
similar premiums.
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(c) Contracts. The Vendors shall perform in all material
respects their respective obligations under Contracts relating
to or affecting the IBEX Pharma Canadian Assets and/or the
IBEX Pharma Canadian Business.
(d) Books and Records. The Vendors shall maintain the books
of account and records relating to the IBEX Pharma Canadian
Assets and/or the IBEX Pharma Canadian Business in the usual
and ordinary course of business.
(e) Compliance With Laws. The Vendors shall comply in all material
respects with all Laws applicable to the IBEX Pharma Canadian
Assets and/or the IBEX Pharma Canadian Business.
(f) Additional Contracts. No member of the IBEX Group or
their Affiliates shall enter into or assume any Contract
relating to the IBEX Pharma Canadian Business except for: (i)
purchases of supplies of inventories in the usual and ordinary
course of the IBEX Pharma Canadian Business consistent with
prior practice; and (ii) Contracts which, individually or in
the aggregate, are not material to the IBEX Pharma Canadian
Business. For purposes of the proceeding sentence, any
Contract in excess of CDN$50,000 shall be considered material
to the IBEX Pharma Canadian Business. No member of the IBEX
Group or their Affiliates shall otherwise make any material
change in the conduct of the IBEX Pharma Canadian Business.
(g) Disposition of IBEX Pharma Canadian Assets. The Vendors
shall not sell, lease or transfer or agree to sell, lease or
transfer or cause any Encumbrance upon, any of the IBEX Pharma
Canadian Assets, out of the ordinary course of the IBEX Pharma
Canadian Business or approve or undertake any other
transaction out of the ordinary course of the IBEX Pharma
Canadian Business or furnish or cause to be furnished any
information concerning the IBEX Pharma Canadian Assets and/or
the IBEX Pharma Canadian Business to any third Person who is
interested in any such transaction.
(h) Remuneration of Therapeutic Asset Employees. The
Vendors shall not increase in any manner the compensation,
bonuses or benefits of any of the Therapeutic Asset Employees
or pay or agree to pay any bonus or pension or retirement
allowance or other employee benefit not required by any
existing Employee Plan or Contract or commit to any new or
renewed Employee Plans or to any employment Contract (or
amendment, renewal or extension thereof) with or for the
benefit of any Therapeutic Asset Employee and the Vendors
shall not amend any of the foregoing now in existence.
(i) Representations and Warranties. The members of the IBEX
Group shall not do anything that would cause any of the
representations and warranties under Article 5 to be false,
incomplete or misleading in such a fashion so as to have a
Material Adverse Effect on the members of the IBEX Group.
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(j) Advice. The members of the IBEX Group shall promptly
advise the members of the BioMarin Group in writing of any
change that would have a Material Adverse Effect on the
condition, financial or otherwise of the IBEX Pharma Canadian
Assets and/or the IBEX Pharma Canadian Business.
(k) Accounting. With respect to the IBEX Pharma Canadian
Business and the IBEX Pharma Canadian Assets, no member of the
IBEX Group shall make any change in the accounting principles,
methods, records or practices followed by it or depreciation
or amortization policies or rates theretofore adopted by it.
Each member of the IBEX Group shall maintain its books,
records and accounts in accordance with Canadian generally
accepted accounting principles applied on a basis consistent
with past practice.
(l) Discharge. No member of the IBEX Group shall cancel,
compromise, release or discharge any Claim in connection with
the operation of the IBEX Pharma Canadian Assets upon or
against any Person or waive any right of material value
except, in any case, in the ordinary course of the IBEX Pharma
Canadian Business and consistent with past practice.
(m) McGill License. The members of the IBEX Group shall,
upon the request of BioMarin, introduce representatives of
BioMarin to appropriate representatives of McGill University
with a view to obtaining a license from McGill University to
use U.S. Patent 5,147,641 and its foreign counterparts on
substantially the same terms and conditions as the license
dated August 30, 1994 between McGill University and IBEX. The
members of the IBEX Group shall not enter into any license in
respect of such patent or otherwise interfere with the
negotiation of such license by BioMarin.
9.2 Interim Access. From and after the execution and delivery of this
Agreement and until Closing or other termination of this Agreement, the members
of the IBEX Group shall continue to make available to the members of the
BioMarin Group and their respective directors, officers, auditors, employees,
investment bankers, counsel and other authorized representatives (the
"Representatives") all title documents, policies of insurance, Contracts and
other documents in the possession of the members of the IBEX Group or under the
control of the members of the IBEX Group relating to the IBEX Pharma Canadian
Assets and the IBEX Pharma Canadian Business. The members of the IBEX Group
shall also continue to forthwith make available to the members of the BioMarin
Group and their respective Representatives for examination, all books of
account, accounting records, documents, information and data relating to the
IBEX Pharma Canadian Assets and the IBEX Pharma Canadian Business and shall also
continue to make available to the members of the BioMarin Group and their
respective Representatives full and complete access to the key personnel,
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customers, suppliers, independent accountants and counsel of members of the IBEX
Group, as requested by the members of the BioMarin Group or their respective
Representatives. The members of the IBEX Group shall afford the members of the
BioMarin Group and their respective Representatives every reasonable opportunity
to have access to and inspect the IBEX Pharma Canadian Assets.
10. INDEMNITY
10.1 Indemnity by the Members of the BioMarin Group. The members of the
BioMarin Group shall solidarily indemnify and save harmless the members of the
IBEX Group from all Losses actually incurred by the members of the IBEX Group as
a result of: (i) any breach by the members of the BioMarin Group or any
inaccuracy of any covenant, representation or warranty of the members of the
BioMarin Group contained in this Agreement; and (ii) any actual action, suit,
investigation, inquiry or proceeding (each, an "Action") arising out of or
resulting from the conduct of the IBEX Pharma Canadian Business or any of the
IBEX Pharma Canadian Assets by members of the BioMarin Group after the Closing
Date.
10.2 Indemnity by the Members of the IBEX Group. The members of the IBEX
Group shall solidarily indemnify and save harmless the members of the BioMarin
Group from all Losses actually incurred by the members of the BioMarin Group as
a result of: (i) any breach by any member of the IBEX Group or any inaccuracy of
any covenant, representation or warranty of any member of the IBEX Group
contained in this Agreement; (ii) any Action arising from rights of creditors
pursuant to the Bulk Sales Carve-Out or any Action arising from rights of
creditors pursuant to any non-compliance by BioMarin NS with section 1767 ss of
the Civil Code of Quebec in connection with the Canadian Transaction; or (iii)
any Excluded Liability; or (iv) any Action arising out of or resulting from the
conduct of the IBEX Pharma Canadian Business or any of the IBEX Pharma Canadian
Assets by the members of the IBEX Group prior to the Closing Date; and (v) any
Action arising from the failure of the members of the IBEX Group to comply with
any covenants contained in this Agreement.
10.3 Indemnification Procedure. An indemnified party pursuant to the
provisions hereof (the "Indemnified Party") shall give the other Party (the
"Indemnitor") notice of any matter which an Indemnified Party has determined has
given or could give rise to a right of indemnification under this Agreement,
within 60 days of such determination, stating the amount of the Loss if known
and the method of computation thereof and containing a reference to the
provisions of this Agreement in respect of which such right of indemnification
is claimed. If an Indemnified Party shall receive notice of any third party
claim (a "Third Party Claim"), the Indemnified Party shall give the Indemnitor
notice of the Third Party Claim within 30 days of the receipt by the Indemnified
Party of such notice. The failure to provide such notice shall not release the
Indemnitor from its obligations under this Article except to the extent that the
Indemnitor is materially prejudiced by such failure and shall not relieve the
Indemnitor from any other obligation or liability that it may have to the
Indemnified Party other than under this Article. If the Indemnitor acknowledges
in writing its obligation to indemnify the Indemnified Party hereunder against
any Losses that may result from such Third Party Claim within 20 days of receipt
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of notice of such Claim, the Indemnitor shall be entitled to assume and control
the defense of such Third Party Claim at its expense and through counsel of its
choice if it gives notice of its intention to do so to the Indemnified Party
within five days of the receipt of such notice from the Indemnified Party. If
there exists or is reasonably likely to exist a conflict of interest that would
make it inappropriate in the judgment of the Indemnified Party, in its sole and
absolute discretion, for the same counsel to represent both the Indemnified
Party and the Indemnitor or if the Indemnitor does not so assume and defend such
Third Party Claim, the Indemnified Party shall be entitled to retain its own
counsel, in each jurisdiction for which the Indemnified Party determines counsel
is required, at the expense of the Indemnitor. If the Indemnitor exercises the
right to undertake any such defense against any Third Party Claim, the
Indemnified Party shall cooperate with the Indemnitor in such defense and shall
make available to the Indemnitor, at the Indemnitor's expense, all witnesses,
pertinent records, materials and information in the Indemnified Party's
possession or under the Indemnified Party's control relating thereto as is
reasonably required by the Indemnitor. If the Indemnified Party is directly or
indirectly conducting the defense against any such Third Party Claim, the
Indemnitor shall cooperate with the Indemnified Party in such defense and shall
make available to the Indemnified Party, at the Indemnitor's expense, all such
witnesses, records, materials and information in the Indemnitor's possession or
under the Indemnitors' control relating thereto as is reasonably required by the
Indemnified Party. No such Third Party Claim may be settled by the Indemnitor
without the prior written consent of the Indemnified Party, acting reasonably.
For the purposes of this Article 10, the members of the BioMarin Group shall be
treated as one Party and the members of the IBEX Group shall be treated as one
Party.
10.4 Supplemental Rights. The rights and benefits provided in this Article
10 are supplemental to and are without prejudice to any other rights, actions or
causes of action which may arise pursuant to any other section of this Agreement
or pursuant to applicable law.
10.5 Reduction of Canadian Purchase Price. All amounts received by the
members of the BioMarin Group pursuant to the provisions of this Article shall
be received in reduction of the Canadian Purchase Price.
10.6 Minimum and Maximum Indemnification Claim. Notwithstanding the provisions
of section 10.1(i) and (ii) or 10.2(i) and (iv), as the case may be, the
obligation of the members of the BioMarin Group or the members of the IBEX
Group, as the case may be, to indemnify the other Parties in respect of any of
the matters described therein, as the case may be, shall become applicable only
when the Losses actually incurred by the Person entitled to indemnification
exceed in the aggregate CDN$100,000 under this Agreement and/or the U.S.
Purchase Agreement (the "Minimum Threshold"). Once the Minimum Threshold has
been exceeded, the obligations of indemnification with respect to such matters
shall apply to (i) 50% of any and all Losses from dollar one above the first
CDN$50,000 to CDN$100,000 of such Losses and (ii) any and all Losses from dollar
one above CDN$100,000 of such Losses. The right of indemnification with respect
to such matters shall only apply to Losses (exclusive of Losses relating to
breaches of representations and warranties set forth in sections 5.1(l) and
5.1(bb), and any other matters relating to the Excluded Liabilities, and rights
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of creditors pursuant to the Bulk Sales Carve-Out and rights of creditors
pursuant to the matters described in section 10.2(ii), for which there shall be
no limitation) under this Agreement and the U.S. Purchase Agreement which
aggregate up to and including the sum of (a) the Canadian Purchase Price, (b)
the Worldwide Purchase Price (as defined in the U.S. Purchase Agreement) and (c)
the Contingency Payments (as defined in the U.S. Purchase Agreement).
10.7 Rights of Set-Off. Subject to section 10.6, in the event the members
of the BioMarin Group have incurred Losses and the members of the IBEX Group
must indemnify the members of the BioMarin Group pursuant to the provisions
hereof, BioMarin shall have the right to set off such Losses as against the
Contingency Payments (as defined in the U.S. Purchase Agreement).
11. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE MEMBERS OF THE IBEX
GROUP AT CLOSING
11.1 Conditions Precedent. All obligations of the Vendors to sell the IBEX
Pharma Canadian Assets to BioMarin NS at Closing under this Agreement are
subject to the fulfillment (or waiver in writing by the members of the IBEX
Group) prior to or at the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties made by each member of the BioMarin Group in or
under this Agreement shall be true in all material respects
(except where already qualified as to materiality) on and as
of the Closing Date and the Vendors shall have received from
each member of the BioMarin Group a certificate signed as of
the Closing Date to such effect in the form set out in
Schedule 11.1(a).
(b) Compliance with Covenants. Each member of the BioMarin
Group shall have complied with all covenants and agreements
herein agreed to be performed or caused to be performed by
each member of the BioMarin Group prior to Closing and the
members of the IBEX Group shall have received from each member
of the BioMarin Group a certificate signed as of the Closing
Date to such effect in the form set out in Schedule 11.1(b).
(c) Corporate Authorizations. The members of the BioMarin
Group shall have delivered to the members of the IBEX Group
evidence satisfactory to the members of the IBEX Group that
all necessary corporate authorizations by the members of the
BioMarin Group authorizing and approving the execution and
delivery of this Agreement and the consummation of the
Canadian Transaction have been obtained.
(d) Assumed Stock Options. On Closing, BioMarin shall
deliver to each of the Therapeutic Asset Employees who have
stock options of IBEX and who accept the offer of employment
of BioMarin NS, immediately vested, 10 year options to
purchase shares of common stock of BioMarin (the "BioMarin
Options"), as set forth on Schedule 11.1(d).
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(e) Assumption of Assumed Canadian Liabilities. On Closing,
the members of the BioMarin Group and the Vendors shall
execute and deliver an assignment and assumption agreement
with respect to the IBEX Pharma Assumed Canadian Liabilities
in the form set out in Schedule 11.1(e).
(f) Opinions. On Closing, the members of the IBEX Group
shall receive from United States, Nova Scotia and Quebec
counsel to the members of the BioMarin Group legal opinions in
the forms set out in Schedule 11.1(f).
(g) BioMarin Canadian Transaction Shares. On Closing, BioMarin
shall deliver certificates representing the BioMarin
Canadian Transaction Shares to the Vendors as provided in
section 3.2 hereof.
(h) License Agreement. On Closing, (i) the members of the
BioMarin Group shall execute and deliver with the members of
the IBEX Group a license agreement in the form set forth in
Schedule 11.1(h) and (ii) Massachusetts Institute of
Technology shall have consented to the license of Intellectual
Property covered by the Contracts with the Massachusetts of
Technology set forth in Schedule 2.3(b) of the U.S. Purchase
Agreement to the members of IBEX Group contemplated in the
license agreement set forth in Schedule 11.1(h).
(i) Insurance. On Closing, BioMarin NS shall have insured
the IBEX Pharma Canadian Assets, with effect as and from the
Closing Date, in such amounts and against such risks
including, without limitation, general liability and tenant's
liability, as are customarily carried and insured against by
BioMarin in respect of comparable assets in the conduct of its
business.
In case any of the foregoing conditions cannot be fulfilled at or before the
Time of Closing to the satisfaction of the members of the IBEX Group, the
members of the IBEX Group may rescind this Agreement by notice to the members of
the BioMarin Group and in such event all of the Parties shall be released from
all obligations hereunder, unless the members of the IBEX Group can show that
the condition or conditions which have not been satisfied are reasonably capable
of being performed or caused to be performed by the members of the BioMarin
Group and are the obligation of the members of the BioMarin Group to perform or
to cause to be performed or have not been satisfied by reason of a default by
the members of the BioMarin Group, in which case, the members of the BioMarin
Group, at the option of the members of the IBEX Group, shall not be released
from any obligations hereunder. Any such conditions may be waived in whole or in
part by the members of the IBEX Group without prejudice to the members of the
IBEX Group's rights of rescission in the event of the non-fulfillment of any
other condition or conditions, any such waiver to be binding on the members of
the IBEX Group only if the same is in writing.
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12. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE MEMBERS OF THE BIOMARIN
GROUP AT CLOSING
12.1 Conditions Precedent. All obligations of BioMarin NS to purchase the
IBEX Pharma Canadian Assets from the Vendors at Closing under this Agreement are
subject to the fulfillment (or waiver in writing by the members of the BioMarin
Group) prior to or at the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties made by each member of the IBEX Group in or under
this Agreement shall be true in all material respects (except
where already qualified as to materiality) on and as of the
Closing Date and the members of the BioMarin Group shall have
received from each member of the IBEX Group a certificate
signed as of the Closing Date to such effect, in the form set
out in Schedule 12.1(a).
(b) Actions, Etc. All actions, proceedings, instruments and
documents required for the members of the IBEX Group to carry
out the Canadian Transaction and all other related legal
matters shall have been approved by the members of the
BioMarin Group and the members of the BioMarin Group shall
have been furnished with such certified copies of actions and
proceedings with respect to the members of the IBEX Group and
other such instruments and documents as the members of the
BioMarin Group shall have requested.
(c) Compliance with Covenants. Each member of the IBEX
Group shall have complied with all covenants and agreements
herein agreed to be performed or caused to be performed by
each member of the IBEX Group and the members of the BioMarin
Group shall have received from each member of the IBEX Group a
certificate signed as of the Closing Date to such effect, in
the form set out in Schedule 12.1(c).
(d) Corporate Authorizations. The members of the IBEX Group
shall have delivered to the members of the BioMarin Group
evidence satisfactory to the members of the BioMarin Group
that all necessary corporate authorizations by the members of
the IBEX Group authorizing and approving the execution and
delivery of this Agreement, the consummation of the Canadian
Transaction and the transfer of the IBEX Pharma Canadian
Assets as herein contemplated have been obtained.
(e) Employment Agreements. On Closing, BioMarin NS and
Robert Heft shall execute and deliver an employment agreement
on terms and conditions mutually acceptable to BioMarin NS and
Robert Heft. BioMarin shall be a party to such agreement
solely as a guarantor of the obligations of BioMarin NS
thereunder.
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(f) Assumption of IBEX Pharma Canadian Assumed Liabilities.
On Closing, the members of the BioMarin Group and the Vendors
shall execute and deliver an assignment and assumption
agreement with respect to the IBEX Pharma Canadian Assumed
Liabilities, in the form set out in Schedule 11.1(e).
(g) Approvals and Consents. At or before Closing there
shall have been obtained from all appropriate federal,
municipal or other governmental or administrative bodies all
such approvals and consents, if any, in form and on terms
satisfactory to the members of the BioMarin Group as may be
required in order to transfer the IBEX Pharma Canadian Assets
and to enable BioMarin NS to assume the IBEX Pharma Canadian
Assumed Liabilities at Closing as herein provided.
(h) No Material Loss. There shall have been no material loss or
damage to the IBEX Pharma Canadian Assets not adequately
covered by insurance.
(i) No Material Adverse Change. There shall have been no
change that would have a Material Adverse Effect on the
condition, financial or otherwise of the IBEX Pharma Canadian
Assets and/or the IBEX Pharma Canadian Business.
(j) Litigation. No court order shall have been entered that
enjoins, restrains, prohibits or restricts Closing of the
Canadian Transaction. None of the Parties nor any of their
respective directors, officers, employees or agents shall be a
defendant or third party to or have received written or oral
notice of the threat of any litigation or proceedings before
any court or Governmental Authority which, in the opinion of
the members of the BioMarin Group, could prevent or restrict
such Party from performing any of its obligations in this
Agreement or any of the Closing Documents or could expose such
Person to damages.
(k) Quebec Securities Commission. On or before Closing,
BioMarin shall have received the approval of the Quebec
Securities Commission to the issuance of the BioMarin Canadian
Transaction Shares and to the issuance of the BioMarin Options
and the Underlying Securities to the applicable Therapeutic
Asset Employees who reside in the Province of Quebec (the
"Quebec Securities Commission Approvals").
(l) Receipt of Closing Documents by the Members of the BioMarin
Group. All instruments of conveyance and other documentation
relating to the sale and purchase of the IBEX Pharma Canadian
Assets, including without limitation, the Closing Documents,
assignments, bills of sale, conveyances and other documentation
and all actions and proceedings taken on or prior to the Closing
in connection the performance by the members of the IBEX Group
of their obligations under this Agreement shall be satisfactory
to the members of the BioMarin Group and their counsel and the
members of the BioMarin Group shall have received duly executed
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copies of the Closing Documents and all such documentation or
other evidence as they may reasonably request in order to
establish the consummation of the Canadian Transaction and the
taking of all corporate proceedings in connection therewith in
form (as to certification and otherwise) and substance
satisfactory to the members of the BioMarin Group and their
counsel. For greater certainty and without limitation, the
Vendors shall have delivered to BioMarin NS duly executed, in
form and substance reasonably satisfactory to the members of the
BioMarin Group and their counsel and in proper form for
registration, if required, under applicable Laws, all
instruments of conveyance and other documentation relating to
the sale and purchase of the IBEX Pharma Canadian Assets,
including without limitation:
(i) bills of sale and assignment of interest for the
IBEX Pharma Canadian Assets (including all
Permits and Licenses and all Contracts), in the form
set out in Schedule 12.1(l)(i); and
(ii) assignments in registerable form of all Intellectual
Property, in the forms set out in Schedule
12.1(l)(ii).
(m) Consents to Assignments. With respect to any IBEX Group
Canadian Intellectual Property, the Permits and Licenses and the
Contracts (the "Canadian Assigned Rights") forming a part of the
IBEX Pharma Canadian Assets in connection with the IBEX Pharma
Canadian Business and which BioMarin NS shall assume at Closing
in accordance with this Agreement, which are identified at
Schedule 2.1(b), on Closing, the members of the IBEX Group shall
deliver to BioMarin NS, such unconditional written consents to
the assignment thereof (the "Canadian Assigned Rights Consents")
as are applicable, to assign the Canadian Assigned Rights to
BioMarin NS together with written acknowledgements from the
other party to such Canadian Assigned Rights, in the form set
out in Schedule 12.1(m) acknowledging that all amounts due and
payable thereunder by the Vendors have been paid in full to the
Closing Date.
(n) Possession of IBEX Pharma Canadian Assets. On Closing, the
Vendors shall deliver title to and possession of all of the IBEX
Pharma Canadian Assets to BioMarin NS.
(o) Non-Competition Agreement. On Closing, the members of
the IBEX Group shall execute and deliver non-competition
agreements in favor of the members of the BioMarin Group in
the form set out in Schedule 12.1(o).
(p) Termination Agreement. On Closing, the members of the
IBEX Group shall execute and deliver with the members of the
BioMarin Group an agreement in the form set out in Schedule
12.1(p) terminating all written or oral agreements among the
members of the IBEX Group with respect to the IBEX Pharma
Canadian Assets and the IBEX Pharma Canadian Business,
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including for greater certainty and without limitation,
marketing agreements with respect to the IBEX Group Canadian
Intellectual Property, on terms and conditions satisfactory to
the members of the BioMarin Group and their counsel.
(q) Services, Equipment and Space Sharing Agreement. On Closing,
the members of the IBEX Group shall execute and deliver with the
members of the BioMarin Group an agreement in form set out in
Schedule 12.1(q).
(r) License Agreement. On Closing, (i) the members of the
IBEX Group shall execute and deliver with the members of the
BioMarin Group a license agreement in the form set forth in
Schedule 11.1(h) and (ii) Massachusetts Institute of
Technology shall have consented to the license of Intellectual
Property covered by the Contracts with the Massachusetts of
Technology set forth in Schedule 2.3(b) of the U.S. Purchase
Agreement to the members of IBEX Group contemplated in the
license agreement set forth in Schedule 11.1(h).
(s) US Purchase Agreement. On Closing, the transaction set
forth under the US Purchase Agreement shall have been
contemporaneously successfully consummated.
(t) Opinion. On Closing, the members of the BioMarin Group
shall receive from Quebec counsel to the members of the IBEX
Group a legal opinion in the form set out in Schedule 12.1(t).
(u) No Orders. No order of any court or administrative
agency shall be in effect which restrains or prohibits the
Canadian Transaction and no suit, action, inquiry,
investigation or proceeding in which it will be or it is
sought to restrain, prohibit or change the terms of or obtain
damages or other relief in connection with the Canadian
Transaction and which in the judgment of the members of the
BioMarin Group and their counsel, acting reasonably, makes it
inadvisable to proceed with the consummation of the Canadian
Transaction shall have been made, instituted or threatened by
any Person.
In case any of the foregoing conditions cannot be fulfilled at or before the
Time of Closing to the satisfaction of the members of the BioMarin Group, the
members of the BioMarin Group may rescind this Agreement by notice to the
members of the IBEX Group and in such event all of the Parties shall be released
from all obligations hereunder, unless the members of the BioMarin Group can
show that the condition or conditions which have not been satisfied are
reasonably capable of being performed or caused to be performed by the members
of the IBEX Group and are the obligation of the members of the IBEX Group to
perform or to cause to be performed or have not been satisfied by reason of a
default by the members of the IBEX Group, in which case, the members of the IBEX
Group, at the option of the members of the BioMarin Group, shall not be released
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from any obligations hereunder. Any such conditions may be waived in whole or in
part by the members of the BioMarin Group without prejudice to the members of
the BioMarin Groups' rights of rescission in the event of the non-fulfillment of
any other condition or conditions, any such waiver to be binding on the members
of the BioMarin Group only if the same is in writing.
13. THIRD PARTY ASSIGNMENT AND CONSENTS
13.1 Third Party Assignments. Neither this Agreement nor any Closing
Document shall constitute an assignment or an attempted assignment of any
Canadian Assigned Right contemplated to be assigned to BioMarin NS hereunder
where such Canadian Assigned Right: (i) is not assignable without the consent of
a third Person if such consent has not been obtained and such assignment or
attempted assignment would constitute a breach thereof; or (ii) in respect of
which Canadian Assigned Right the remedies for enforcement thereof available to
the Vendors would not pass to BioMarin NS. In respect of the foregoing, the
members of the IBEX Group, as and by way of a post-closing covenant, solidarily
agree to take such action or cause to be taken such action in their own name or
otherwise as the members of the BioMarin Group shall reasonably require so as to
provide BioMarin NS the benefits thereof and to effect collection of money to
become due and payable by the other party thereto and the members of the IBEX
Group shall promptly pay over to BioMarin NS all money received by the Vendors
in respect of the foregoing. If and when any Canadian Assigned Right Consent is
obtained or such Canadian Assigned Right otherwise becomes assignable, the
Vendors shall promptly assign all of their rights and obligations thereunder to
BioMarin NS and BioMarin NS shall, without the payment of any further
consideration therefor, assume such rights and obligations and the Vendors shall
be relieved of any and all liability therefor.
13.2 Further Assurances; Consents. From and after the date hereof and
before and after Closing: (i) each of the Parties shall use their reasonable
best efforts to satisfy or cause to be satisfied all the conditions precedent
that are set forth herein including without limitation, the procurement of the
post-Closing Canadian Assigned Rights Consents as set forth in Schedule 13.2;
(ii) each of the Parties shall use their reasonable best efforts to cause the
Canadian Transaction to be consummated; (iii) the Parties shall cooperate with
each other to provide such information, to execute and deliver such other
documents, instruments of transfer or assignment, files, books and records and
to do all such further acts and things as may be reasonably required to carry
out the Canadian Transaction; (iv) the Parties shall use all reasonable efforts
to comply promptly with all legal requirements that may be imposed upon them
with respect to the consummation of the Canadian Transaction and to obtain any
consent or any exemption by and to make any registration, declaration or filing
with any Governmental Authority or other third Person required to be obtained or
made by such Person in connection with the taking of any action contemplated
hereby, including without limitation, the post-Closing Canadian Assigned Rights
Consents. The Parties covenant and agree to proceed diligently and in a
coordinated fashion to apply for and obtain any and all necessary approvals
and/or Canadian Assigned Rights Consents. For greater certainty and without
limitation, at the request of any member of the BioMarin Group, prior to and
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after Closing, the Representatives of the BioMarin Group shall have full right
to participate in discussions with all third Persons with a view to procuring
all pre-Closing and post-Closing Canadian Assigned Rights Consents; provided,
however, that in the event that from and after Closing, any member of the IBEX
Group has not proceeded diligently and in a coordinated fashion to apply for and
obtain any and all such necessary approvals and/or Canadian Assigned Rights
Consents, the members of the BioMarin Group, without any further or other act or
formality shall be irrevocably appointed to act as attorney and mandatory for
and on behalf of any or all of the members of the IBEX Group in their place and
stead, with full power of substitution. Notwithstanding the foregoing, the
members of the IBEX Group shall ensure that all necessary Representatives of the
IBEX Group are entitled to be present and/or participate, as applicable, at all
reasonable times to accomplish the objectives of this section 13.2.
14. ADDITIONAL POST-CLOSING COVENANTS
14.1 Financial Statements. The members of the IBEX Group solidarily
covenant and agree as and by way of a post-closing covenant to preserve the
financial statements and working papers relating to the IBEX Pharma Canadian
Business for a period of at least six years from the Closing and to allow the
members of the BioMarin Group or the Representatives to have access thereto at
all reasonable times in connection with the affairs of the BioMarin Group and to
make copies thereof and to take extracts therefrom. The members of the IBEX
Group solidarily covenant and agree as and by way of a post-closing covenant to
use their reasonable best efforts to maintain and preserve such books of account
and to at least exercise the same degree of care with respect thereto as they do
now in connection with their other business records.
14.2 Resale Payments. The members of the BioMarin Group solidarily
covenant and agree as and by way of a post-closing covenant to pay to the
Vendors a sum equal to 50% of any consideration received by any member of the
BioMarin Group within three months of the Closing Date, as a result of a license
or sale of any of the IBEX Group Canadian Intellectual Property.
14.3 Filter Technology. The members of the IBEX Group solidarily covenant
and agree as and by way of a post-closing covenant that, for no additional
consideration (the consideration therefor being included in the Canadian
Purchase Price), on or before August 31, 2002, they shall transfer to BioMarin
NS, good and marketable title to the Filter Technology, free and clear of any
and all Encumbrances, subject to the rights of creditors pursuant to the Bulk
Sales Carve Out and pursuant to a general conveyance which shall contain
representations and warranties on the part of the members of the IBEX Group with
respect to the Filter Technology which are similar to the representations and
warranties with respect to the IBEX Pharma Canadian Assets that are contained in
this Agreement.
14.4 McGill License. The members of the IBEX Group solidarily agree as a
post-closing covenant that members of the IBEX Group shall not enter into any
license in respect of US Patent 5,147,641 and its foreign counterparts or
otherwise interfere with the negotiation of such license by BioMarin.
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14.5 Retention Agreement. The members of the IBEX Group solidarily
covenant and agree as and by way of a post-closing covenant that for a period of
three (3) years following Closing, the members of the IBEX Group shall not enter
into an amalgamation, consolidation, merger or transfer of the undertaking or
assets of the IBEX Group as an entirety or substantially as an entirety (a
"Capital Reorganization") with or to another person (a "Successor Company")
unless the Successor Company resulting from the Capital Reorganization (if not
one of the members of the IBEX Group) shall agree to be bound by the provisions
of this Agreement including, without limitation, Article 10 hereof. For greater
certainty, this section 14.5 shall not apply to: (i) a Capital Reorganization
involving only members of the IBEX Group; or (ii) a sale of BioMarin Worldwide
Transaction Shares by any member of the IBEX Group.
14.6 License Agreement. The members of the BioMarin Group solidarily
covenant and agree as a post-closing covenant to use their commercially
reasonable efforts to cause Contracts with Massachusetts Institute of Technology
set forth on Schedule 2.3(b) of the US Purchase Agreement or any amendments or
extensions thereof to remain in good standing and to preserve BioMarin's ability
to license Intellectual Property licensed to BioMarin under such Contracts to
the IBEX Group under the license agreement set forth in Schedule 11.1(h).
15. CONFIDENTIALITY
15.1 Confidentiality. For a period of five years from Closing, each Party
shall keep confidential all information (the "Confidential Information")
obtained from the other Party or its Representatives in connection with the
other Party, this Agreement and the Canadian Transaction and that all such
Confidential Information obtained by it from the other Party or any of its
Representatives shall be used solely for the purpose of evaluating the Canadian
Transaction and for no other purpose. The term "Confidential Information" shall
not include any information which: (i) is or becomes generally available to the
public other than as a result of a disclosure by the receiving Party or the
Representatives; (ii) becomes known to the receiving Party or the
Representatives on a non-confidential basis from a source (other than the
disclosing Party) which is not known to the receiving Party to be bound to the
disclosing Party by a legal, contractual or fiduciary obligation; (iii) was
known to the receiving Party or the Representatives on or prior to the date
hereof; or (iv) was independently discovered or developed by the receiving Party
without reference to any of the Confidential Information. If this Agreement is
terminated without consummation of the Canadian Transaction, each Party shall
return to the other Party all Confidential Information in its possession
regarding the other Party and all copies and extracts thereof or with the
consent of the other Party shall destroy all such Confidential Information and
copies and extracts and shall deliver to the other Party evidence of destruction
of such Confidential Information and copies and extracts as such other Party may
reasonably request. For the purpose of this Article 15, the members of the
BioMarin Group shall be one Party and the members of the IBEX Group shall be one
Party. Confidential Information includes all information transferred from the
IBEX Group to the BioMarin Group as part of the IBEX Pharma Canadian Assets.
Notwithstanding the foregoing, it is acknowledged and agreed that (x) no
information provided by the BioMarin Group to the IBEX Group concerning BioMarin
-49-
or its business constitutes Confidential Information of the members of the
BioMarin Group and (y) from and after the Closing, no information relating to
the IBEX Pharma Canadian Assets or the IBEX Pharma Canadian Business constitutes
Confidential Information to be held in confidence by any member of the BioMarin
Group.
15.2 Public Disclosure. No Party shall issue any press release or other
public announcement, written or oral, relating to this Agreement or to
performance hereunder or the existence of any arrangement among the Parties
without the prior approval of the other Parties acting reasonably and on a
timely basis, except to the extent that such press release or announcement is
reasonably concluded by a Party to be required by applicable Law. The forms of
press release to be issued by IBEX and BioMarin upon the execution and delivery
of this Agreement are set forth in Schedule 15.2. Each member of the IBEX Group
acknowledges that BioMarin will be required to file a copy of this Agreement and
the other agreements and instruments contemplated hereby with the Commission and
to describe the Canadian Transaction in its public filings.
16. SOLICITATION
16.1 No Solicitation. From the date hereof and up to and including the
Closing Date or other termination of this Agreement, other than in connection
with the Canadian Transaction, the members of the IBEX Group solidarily covenant
and agree that neither they nor any their Affiliates shall nor shall any of the
members of the IBEX Group or any of their Affiliates permit their respective
Representatives to initiate, solicit or encourage, directly or indirectly, any
inquiries or the making or implementation of any proposal or offer (including
without limitation, any proposal or offer to shareholders) with respect to an
Acquisition Proposal or engage in negotiations concerning or provide any
confidential information or data to, have any discussions with or endorse or
recommend a proposal of or enter into any contract or understanding with any
Person relating to an Acquisition Proposal or otherwise facilitate any effort or
attempt to make or implement an Acquisition Proposal. The members of the IBEX
Group shall notify the members of the BioMarin Group immediately if any such
inquiries or proposals are received by, any such information is requested from
or any such negotiations or discussions are sought to be initiated or continued
with the members of the IBEX Group or any of their Affiliates or
Representatives; provided however that nothing contained in this section shall
prohibit the board of directors of IBEX from furnishing non-public information
to or entering into discussions or negotiations with any Person that makes an
unsolicited bona fide Acquisition Proposal, if and only to the extent that: (i)
the board of directors of IBEX, based upon the advice of outside counsel,
determines in good faith that such action is required for the board of directors
of IBEX to comply with its fiduciary duties to shareholders imposed by
applicable Law; (ii) prior to furnishing such information to or entering into
discussions or negotiations with such Person, the members of the IBEX Group keep
the members of the BioMarin Group informed of the status and all material
information with respect to any such discussions or negotiations. Nothing in
this section shall permit the members of the IBEX Group to terminate this
Agreement or permit the members of the IBEX Group to enter into any agreement
with respect to an Acquisition Proposal for so long as this Agreement remains in
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effect (it being agreed that for so long as this Agreement remains in effect,
none of the members of the IBEX Group nor their Affiliates shall enter into any
agreement with any Person that provides for or in any way facilitates an
Acquisition Proposal or affect any other obligation of the members of the IBEX
Group under this Agreement).
17. CANADIAN ASSETS AT RISK UNTIL CLOSING
17.1 Risk. Notwithstanding anything herein contained, title and risk of
loss of the IBEX Pharma Canadian Assets shall remain with the Vendors until the
Canadian Transaction has been completed as herein contemplated. The Vendors
shall maintain the insurance represented herein to be held by them on the IBEX
Pharma Canadian Assets until the Closing Date and the Vendors shall hold any
proceeds thereof in trust for the Parties as their interests may appear.
17.2 Reduction of Canadian Purchase Price. In the event of damage or
destruction to the IBEX Pharma Canadian Fixed Assets prior to the Closing Date,
to the extent not repaired or replaced by the members of the IBEX Group on or
before the Closing Date to the satisfaction of the members of the BioMarin
Group, the replacement value of the IBEX Pharma Canadian Fixed Assets so damaged
or destroyed as determined by the members of the BioMarin Group and the members
of the IBEX Group in consultation with the insurer of the members of the IBEX
Group shall be deducted from the Canadian Purchase Price. Without limitation of
any of the rights of the members of the IBEX Group hereunder, such amounts may
be reduced from the Canadian Purchase Price by the cancellation of a sufficient
number of BioMarin Canadian Transaction Shares that would otherwise be issuable
hereunder.
18. DELIVERY OF BOOKS AND RECORDS OF THE VENDORS
18.1 Books and Records. On the Closing Date all books, documents and data
solely relating to the IBEX Pharma Canadian Business shall be transferred by the
IBEX Group to BioMarin at the portion of the premises leased by IBEX to be made
available to the BioMarin Group under the agreement referred to in section
12.1(q).
19. MISCELLANEOUS
19.1 Tender. Any tender of documents or money hereunder may be made upon the
Parties or upon their respective solicitors as set forth herein.
19.2 Notice. All notices, requests, demands or other communications by the
Parties required or permitted to be given by one Party to another shall be given
in writing by personal delivery, telecopy or by registered or certified mail,
postage prepaid, addressed, telecopied or delivered to such other Party as
follows:
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(a) if to the members of the IBEX Group in c/o of:
5485 Pare
Montreal, Quebec H4P 1P7
Attention: President
Fax No.: (514) 344-8827
with a copy to:
McCarthy Tetrault
Le Windsor, 1170 rue Peel
Montreal, Quebec H3B 4S8
Attention: Peter Martin
Fax No.: (514) 875-6246
(b) if to the members of the BioMarin Group, to:
371 Bel Marin Keys Boulevard, Suite 210
Novato, California
94949 USA
Attention: Raymond W. Anderson
Fax No.: (415) 382-7889
with a copy to:
Messrs. Cassels Brock & Blackwell LLP
Scotia Plaza, Suite 2100
40 King Street West
Toronto, Ontario M5H 3C2
Attention: Mark Bennett
Fax No.: (416) 360-8877
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California
90071-2371 USA
Attention: Siobhan Burke
Fax No.: (213) 627-0705
or at such other address or telecopier number as may be given by any of them to
the others in writing from time to time and such notices, requests, demands or
other communications shall be deemed to have been received when delivered, if
personally delivered, on the date telecopied (with receipt confirmed) if
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telecopied and received at or prior to 5:00 p.m. local time and, if not, on the
next Business Day, and if mailed, on the date received as certified.
19.3 Further Assurances. The Parties shall sign such other papers, cause
such meetings to be held, resolutions passed and by-laws enacted and exercise
their vote and influence, do and perform and cause to be done and performed such
further and other acts and things as may be necessary or desirable in order to
give full effect to this Agreement and every part hereof.
19.4 Laws. This Agreement shall be governed by the laws of the Province of
Quebec and the federal laws of Canada applicable therein and the Parties hereby
irrevocably attorn to the Courts of the Province of Quebec, sitting in the
district of Montreal.
19.5 Expenses. All out-of-pocket expenses (including legal and accounting
expenses) incurred in connection with the Canadian Transaction shall be borne by
the Party incurring the same.
19.6 Time of the Essence. Time shall be of the essence of this Agreement
and of every part hereof and no extension nor variation of this Agreement shall
operate as a waiver of this provision.
19.7 Entire Agreement. This Agreement constitutes the entire agreement
among the Parties with respect to all of the matters herein. This Agreement
supersedes any and all agreements, understandings and representations made among
the Parties prior to the date hereof, including, without limitation, that
certain Term Sheet dated June 4, 2001 and that certain memorandum from Mr. Gary
Mattan to Mr. Doug Cotter, dated July 17, 2001 as amended by agreements dated
August 22, 2001 and September 21, 2001. This Agreement shall not be amended
except by a memorandum in writing signed by all of the Parties and any amendment
hereof shall be null and void and shall not be binding upon any Party which has
not given its consent as aforesaid.
19.8 Assignment. No Party may assign this Agreement or any part hereof
without the prior written consent of the other Parties which may not be
unreasonably withheld. Subject to the foregoing, this Agreement shall enure to
the benefit of and be binding upon the Parties and their respective successors
and permitted assigns, but no other Person.
19.9 Invalidity. In the event that any of the covenants, representations
and warranties or any portion of them contained in this Agreement are
unenforceable or are declared invalid for any reason whatsoever, such
unenforceability or invalidity shall not affect the enforceability or validity
of the remaining terms or portions thereof contained in this Agreement and such
unenforceable or invalid, covenant, representation and warranty or covenant or
portion thereof shall be severable from the remainder of this Agreement.
19.10 Counterpart. This Agreement may be executed in several counterparts,
each of which so executed shall be deemed to be an original and such
counterparts when taken together shall constitute one and the same original
agreement which shall be binding on the Parties.
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19.11 Language. The Parties acknowledge and confirm that they have requested
that this Agreement as well as all notices and other documents contemplated
hereby be drawn up in the English language. Les parties aux presentes
reconnaissent et confirment qu'elles ont convenu que la presente convention
ainsi que tous les avis et documents qui s'y rattachent soient rediges dans la
langue anglaise.
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IN WITNESS WHEREOF the Parties have duly executed this Agreement as of the date
and year first above written.
BIOMARIN PHARMACEUTICAL INC.
Per: /s/ Fredric R. Price
---------------------------------------------
Name:Fredric R. Price
Title: CEO
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
Per: /s/ Raymond W. Anderson
---------------------------------------------
Name: Raymond W. Anderson
Title: Secretary
IBEX TECHNOLOGIES INC.
Per: /s/ Paul Baehr
---------------------------------------------
Name: Paul Beahr
Title: CEO
IBEX PHARMACEUTICALS INC.
Per: /s/ Paul Baehr
---------------------------------------------
Name: Paul Beahr
Title: CEO
IBEX TECHNOLOGIES LLC
Per: /s/ Robert Heft
---------------------------------------------
Name: Robert Heft
Title: President
IBEX TECHNOLOGIES CORP.
Per: /s/ Robert Heft
---------------------------------------------
Name: Robert Heft
Title: President
TECHNOLOGIES IBEX R&D INC.
Per: /s/ Robert Heft
---------------------------------------------
Name: Robert Heft
Title: President
-55-
Canadian Asset Purchase Agreement - Schedules
Schedule 1.1 U.S. Purchase Agreement
Schedule 2.1 Filter Technology
Schedule 2.1(a) IBEX Pharma Canadian Fixed Assets
Schedule 2.1(b) IBEX Pharma Canadian Contracts, Permits and Licenses
Schedule 2.1(c) IBEX Pharma Canadian Inventory
Schedule 2.1(d) IBEX Pharma Canadian Intellectual Property
Schedule 2.2 IBEX Pharma Canadian Assumed Liabilities
Schedule 2.3 IBEX Group Severance Practices
Schedule 2.4 IBEX Pharma Canadian Excluded Assets
Schedule 3.2 Allocation of BioMarin Canadian Transaction Shares
Schedule 3.3 Allocation of Canadian Purchase Price
Schedule 5.1(a) IBEX Group Jurisdictions
Schedule 5.1(f) IBEX Group Residency
Schedule 5.1(j) Suppliers
Schedule 5.1(k) Clinical Trial Sites
Schedule 5.1(p) IBEX Financial Statements
Schedule 5.1(r) Permits and Licenses
Schedule 5.1(s) Contracts
Schedule 5.1(t) Therapeutic Asset Employees
Schedule 5.1(u) Employee Plans
Schedule 5.1(x) Insurance Policies
Schedule 5.1(y) Taxes
Schedule 5.1(aa) Environmental Permits
Schedule 5.1(bb)(i) Royalties
Schedule 5.1(bb)(ii) Impairment of IP
-2-
Canadian Asset Purchase Agreement - Schedules
Schedule 6.1(f) BioMarin Residency
Schedule 6.1(k) BioMarin Financial Statements
Schedule 6.1(n) BioMarin Registration Exceptions
Schedule 11.1(a) Certificate as to BioMarin Group Representations and Warranties
Schedule 11.1(b) Certificate as to BioMarin Group Compliance with Covenants
Schedule 11.1(d) BioMarin Stock Option Entitlement
Schedule 11.1(e) Assignment and Assumption Agreement
Schedule 11.1(f) BioMarin Group Legal Opinions - United States, Quebec and Nova Scotia
Schedule 11.1(h) License Agreement
Schedule 12.1(a) Certificate as to IBEX Group Representations and Warranties
Schedule 12.1(c) Certificate as to IBEX Group Compliance with Covenants
Schedule 12.1(l)(i) Bills of Sale
Schedule 12.1(l)(ii) Intellectual Property Assignments
Schedule 12.1(m) Form of Canadian Assigned Rights Consent
Schedule 12.1(o) Non-Competition Agreement
Schedule 12.1(p) Termination Agreement
Schedule 12.1(q) Services, Equipment and Space Sharing Agreement
Schedule 12.1(t) IBEX Group Legal Opinion - Quebec and United States
Schedule 13.2 Post-Closing Canadian Assigned Rights Consents
Schedule 15.2 Forms of Press Release
Schedule 1.1
BIOMARIN PHARMACEUTICAL INC.
- and -
BIOMARIN ENZYMES INC.
- and -
IBEX TECHNOLOGIES INC.
- and -
IBEX PHARMACEUTICALS INC.
- and -
IBEX TECHNOLOGIES LLC
- and -
IBEX TECHNOLOGIES CORP.
- and -
TECHNOLOGIES IBEX R&D INC.
UNITED STATES ASSET PURCHASE AGREEMENT
CASSELS BROCK & BLACKWELL LLP
Barristers & Solicitors
Scotia Plaza
Suite 2100
40 King Street West
Toronto, Ontario
M5H 3C2
THIS UNITED STATES ASSET PURCHASE AGREEMENT made as of the 9th day of October,
2001.
AMONG:
BIOMARIN PHARMACEUTICAL INC.
a corporation incorporated pursuant to the laws of Delaware
("BioMarin")
OF THE FIRST PART
- and -
BIOMARIN ENZYMES INC.
a corporation incorporated pursuant to the laws of Delaware
("BioMarin US")
OF THE SECOND PART
- and -
IBEX TECHNOLOGIES INC.
a corporation incorporated pursuant to the laws of Canada
("IBEX")
OF THE THIRD PART
- and -
IBEX PHARMACEUTICALS INC.
a corporation incorporated pursuant to the laws of Canada
("IBEX Pharma")
OF THE FOURTH PART
- and -
IBEX TECHNOLOGIES LLC
a limited liability company organized under the laws of
Delaware
("IBEX LLC")
-1-
OF THE FIFTH PART
- and -
IBEX TECHNOLOGIES CORP.
a corporation incorporated pursuant to the laws of Delaware
("IBEX Corp.")
OF THE SIXTH PART
- and -
TECHNOLOGIES IBEX R&D INC.
a corporation incorporated pursuant to the laws of the
Province of Quebec
("IBEX R&D")
OF THE SEVENTH PART
WHEREAS IBEX, IBEX Pharma, IBEX Corp., IBEX LLC and IBEX R&D (collectively, the
"Vendors") are in the business of the research and development of enzymes for
diagnostic and therapeutic use in a variety of tissue repair and cardiovascular
and genetic diseases and the Vendors wish to sell and BioMarin US wishes to
purchase certain Worldwide (as hereinafter defined) assets pertaining to the
operation of the therapeutic portion of such business Worldwide in connection
with the Products (as hereinafter defined) and BioMarin US wishes to assume only
certain liabilities in connection therewith, all on and subject to the terms and
conditions hereinafter set forth and the parties hereto are therefore desirous
of entering into this Agreement;
AND WHEREAS BioMarin joins in this Agreement to make certain representations and
warranties as well as covenants, including without limitation, with respect to
the BioMarin Worldwide Transaction Shares (as hereinafter defined);
AND WHEREAS contemporaneous herewith the parties (exclusive of BioMarin US)
together with BioMarin NS (as hereinafter defined) are executing and delivering
the Canadian Purchase Agreement (as hereinafter defined);
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants, agreements and premises herein contained and for other good and
valuable consideration (the receipt and sufficiency whereof being hereby
acknowledged by each party), the Parties do hereby covenant and agree as
follows:
-2-
1. DEFINITIONS AND SCHEDULES
1.1 Definitions. In this Agreement:
-----------
"Acquisition Proposal" means any proposal (other than a proposal made
with respect to the Worldwide Transaction) regarding; (i) any merger,
consolidation, share exchange, business combination or other similar
transaction or series of related transactions involving the members of
the IBEX Group or any of their Affiliates which would or could defeat
the purchase by BioMarin NS or BioMarin US, as the case may be, of all
of the Canadian Assets (as defined in the Canadian Purchase Agreement)
and/or the Worldwide Assets and/or all of the IBEX Pharma Canadian
Business (as defined in the Canadian Purchase Agreement) and/or all of
the Worldwide Business and/or the hiring of all of the Therapeutic
Asset Employees (as defined in the Canadian Purchase Agreement); (ii)
any sale, lease, license, exchange, transfer or other disposition of
any of the Canadian Assets, the Worldwide Assets and/or any of the
Therapeutic Asset Employees and/or any portion of the IBEX Pharma
Canadian Business and/or the IBEX Group Worldwide Business; or (iii)
any other substantially similar transaction or series of related
transactions that would or could hinder the consummation of the
Canadian Transaction, the Worldwide Transaction or otherwise defeat the
purposes of this Agreement or the Canadian Purchase Agreement.
"Action" has the meaning ascribed thereto in section 10.1.
"Actual Knowledge" means such knowledge as the current officers of the
members of the IBEX Group would have after diligent inquiry of the
current officers and employees of the members of the IBEX Group of the
matter in question.
"Affiliate" of a Person means any Person that directly or indirectly
controls, is controlled by or is under control with the indicated
Person.
"Agreement", "this Agreement", "hereto" and "herein" means this
Agreement and all schedules attached hereto, as may be amended from
time to time.
"Assumed Worldwide Liabilities" means collectively, the IBEX Pharma
Worldwide Assumed Liabilities and the IBEX LLC Worldwide Assumed
Liabilities.
"Best Knowledge" means such knowledge as the Party would have after
diligent inquiry of the matter in question.
"BioMarin" means BioMarin Pharmaceutical Inc., a Delaware corporation.
"BioMarin Financial Statements" has the meaning ascribed thereto in
section 6.1(k).
-3-
"BioMarin Group" means collectively, BioMarin and BioMarin US.
"BioMarin NS" means BioMarin Pharmaceutical Nova Scotia Company, a Nova
Scotia unlimited liability company.
"BioMarin Share Current Market Price" means the daily volume weighted
average price (based on a trading day from 9:30 a.m. to 4:00 p.m.,
Eastern Time) of the shares of common stock of BioMarin on the Nasdaq
National Market for the 20 trading days ending on the trading day prior
to the date of this Agreement (as reported by Bloomberg Financial LP
using the AQR function).
"BioMarin US" means BioMarin Enzymes Inc., a Delaware corporation.
"BioMarin Worldwide Transaction Shares" means the number of shares of
common stock of BioMarin equal to: (i) the Worldwide Purchase Price
divided by: (ii) the product of (A) the BioMarin Share Current Market
Price and (B) the average value in Canadian dollars of one US dollar
calculated at the average rate of exchange between Canadian dollars and
US dollars (as reported in International Financial Statistics,
published by the International Monetary Fund) for the 20 trading days
ending on the trading day prior to the date of this Agreement.
"BioMarin Year End" has the meaning ascribed thereto in section 6.1(k).
"Bulk Sales Carve-Out" means any non-compliance by members of the IBEX
Group with Article 1767 ss of the Civil Code of the Province of Quebec
in connection with: (i) that certain intercorporate transfer effected
by agreement dated September 1, 1999, between IBEX and IBEX Pharma; and
(ii) the Canadian Transaction.
"Business Day" means a day other than a Saturday or a Sunday or any
other day which is a statutory holiday in the Province of Quebec or in
the State of California.
"Canadian Purchase Agreement" means that certain agreement dated as of
even date among BioMarin, BioMarin NS and the IBEX Group.
"Capital Reorganization" has the meaning ascribed thereto in section
14.5.
"Cash Payment" means an amount equal to the cash equivalent of 200,000
shares of common stock of BioMarin calculated on the same basis as the
calculation of the BioMarin Worldwide Transaction Shares.
"Claims" has the meaning ascribed thereto in the definition of
Environmental Claims.
-4-
"Closing" means the consummation of the Worldwide Transaction as herein
contemplated.
"Closing Date" means October 31, 2001 or such earlier or later date
which is five (5) Business Days following the satisfaction of all
conditions to the Closing set forth in sections 11.1 and 12.1 or as may
otherwise be agreed to in writing by the Parties and in no event shall
be later than December 31, 2001.
"Closing Documents" means any document or undertaking delivered in
relation to the Closing as provided in this Agreement.
"Commission" means the United States Securities and Exchange
Commission.
"Confidential Information" has the meaning ascribed thereto in section
15.1.
"Contract" means any order, agreement, engagement, indenture, contract,
bond, debenture, security agreement, lease, deed of trust, license,
option, instrument or other legally binding commitment, whether written
or oral.
"Control" means the ability to grant assignments, licenses or
sub-licenses without violating the terms of any agreement or other
arrangement with, or the rights of, any other Person.
"Employee Plan" means all pension, retirement, disability, medical,
dental or other health insurance plans, life insurance or other death
benefit plans, any stock option, bonus or other incentive plans,
vacation benefit plans, severance plans or other employee benefit plans
or arrangements to which IBEX is a party in connection with any
Therapeutic Asset Employee or by which IBEX is bound in connection with
any Therapeutic Asset Employee. "Employee Plan" does not include any
government-sponsored employee benefit arrangements.
"Encumbrances" means any and all claims, liens, security interests,
hypothecs, rights, prior claims, mortgages, pledges, pre-emptive
rights, charges, options, equity interests, encumbrances, proxies,
voting agreements, voting trusts, leases, tenancies, easements,
reserves, conditional sale contracts, ownership or title retention
agreements, or other interests of any nature or kind whatsoever,
howsoever created.
"Environment" means surface waters, groundwaters, soil, subsurface
strata and ambient air.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, stop orders,
investigations, injunctions, restrictions, control orders, liens,
notices of noncompliance or violation, investigations, proceedings,
consent orders or consent agreements (collectively, the "Claims"),
relating in any way to Environmental Laws or Environmental Permits
-5-
including without limitation; (i) any and all Claims by Governmental
Authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to applicable Environmental Laws; and
(ii) any and all Claims by any Person seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting from Hazardous Materials or arising from alleged injury or
threat of injury to health, safety or the environment.
"Environmental Condition" means a condition relating to or arising or
resulting from a failure to comply with any Environmental Laws or
Environmental Permits or a Release of a Hazardous Material into the
Environment.
"Environmental Laws" means any Law, now or hereafter in effect and as
amended and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to the Environment, health, safety or Hazardous
Materials.
"Environmental Permits" means all permits, approvals, identification
numbers, licenses and other authorizations required under applicable
Environmental Laws.
"ETA" means the Excise Tax Act (Canada).
"Exchange Act" means the United States Exchange Act of 1934, as
amended.
"Excluded Liabilities" means all liabilities of the Vendors that are
not Assumed Worldwide Liabilities and for greater certainty and without
limitation, Assumed Worldwide Liabilities do not include liabilities
that relate to the Excluded Assets.
"FDA" means the United States Food and Drug Administration and any
successor agency thereto.
"Filter Technology" means the assets set forth on Schedule 2.1.
"Governmental Authority" means any Canadian federal, provincial,
municipal or local or any United States federal, state or local or any
other foreign government, governmental, regulatory or administrative
authority, agency or commission or any court, tribunal or judicial or
arbitral body, board, bureau or instrumentality in any jurisdiction in
the world.
"Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Hazardous Materials" means; (i) petroleum and petroleum products,
radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other
-6-
equipment that contain polychlorinated biphenyls and radon gas; (ii)
any other chemicals, materials or substances defined as or included in
the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous wastes", "restricted
hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants" or words of similar import, under any
applicable Environmental Law; and (iii) any other chemical, material or
substance exposure to which is regulated by any Governmental Authority.
"IBEX" means IBEX Technologies Inc., a Canadian corporation.
"IBEX Corp" means IBEX Technologies Corp., a Delaware corporation.
"IBEX Financial Statements" has the meaning ascribed thereto in section
5.1(p).
"IBEX Group" means collectively, IBEX, IBEX Pharma, IBEX LLC, IBEX
Corp. and IBEX R&D.
"IBEX Group Worldwide Business" means collectively, the IBEX Pharma
Worldwide Business and the IBEX LLC Worldwide Business.
"IBEX Group Worldwide Intellectual Property" means all IBEX LLC
Worldwide Intellectual Property and all IBEX Pharma Worldwide
Intellectual Property.
"IBEX LLC" means IBEX Technologies LLC, a Delaware limited liability
company.
"IBEX LLC Products" means: (i) Heparinase I in respect of its use in a
biopharmaceutical human therapeutic business (i.e. Neutralase); (ii)
Heparinase III (i.e. Extravase); and (iii) Flavobacterium Production
Technology with respect to Heparinase I and Heparinase III.
"IBEX LLC Worldwide Assumed Liabilities" has the meaning ascribed
thereto in section 2.4.
"IBEX LLC Worldwide Assets" means the assets of IBEX LLC and IBEX Corp.
used in connection with or related to the IBEX LLC Worldwide Business,
including, without limitation, the IBEX LLC Worldwide Intellectual
Property, the IBEX LLC Worldwide Fixed Assets and the IBEX LLC
Worldwide Inventory, but excluding the IBEX LLC Worldwide Excluded
Assets.
"IBEX LLC Worldwide Business" means the therapeutic portion of the
research, development, production, manufacture, use, sale, technology
and marketing Worldwide of the IBEX LLC Products.
-7-
"IBEX LLC Worldwide Excluded Assets" has the meaning ascribed thereto
in section 2.5.
"IBEX LLC Worldwide Fixed Assets" means all of the machinery,
equipment, moveable property, chattels and other assets located
Worldwide and described in section 2.3(b).
"IBEX LLC Worldwide Intellectual Property" means all Intellectual
Property owned or Controlled by IBEX LLC or IBEX Corp. relating to or
being used in connection with the IBEX LLC Worldwide Business,
including without limitation, those listed in Schedule 2.3(e), but
excluding the IBEX LLC Worldwide Excluded Assets.
"IBEX LLC Worldwide Inventory" means all inventories of and pertaining
to the IBEX LLC Worldwide Business, including without limitation,
clinical supply materials, packaging materials, raw, semi-finished and
finished products, work in progress, raw materials, all other
materials and supplies on hand to be used or consumed in the
production of items purchased for resale and inventories in transit
from suppliers if paid for or owned by IBEX LLC or IBEX Corp. and all
inventories of general stores and supplies (if any), likewise if paid
for or owned by IBEX LLC or IBEX Corp., including, without limitation,
those described in Schedule 2.3(c), but excluding the IBEX LLC
Worldwide Excluded Assets.
"IBEX Pharma" means IBEX Pharmaceuticals Inc., a Canadian corporation.
"IBEX Pharma Products" means: (i) Heparinase II; (ii) Chondroitinase AC
(IBT9401) and Chondroitinase B; (iii) Oralase Technology (including
Phenylase); and (iv) Flavobacterium Production technology with respect
to Heparinase II.
"IBEX Pharma Worldwide Assets" means the Worldwide assets of IBEX
Pharma, IBEX R&D or IBEX used in connection with or related to the IBEX
Pharma Worldwide Business, including without limitation, the IBEX
Pharma Worldwide Fixed Assets, the IBEX Pharma Worldwide Inventory and
the IBEX Pharma Worldwide Intellectual Property, but excluding the IBEX
Pharma Worldwide Excluded Assets.
"IBEX Pharma Worldwide Assumed Liabilities" has the meaning ascribed
thereto in section 2.2.
"IBEX Pharma Worldwide Business" means the therapeutic portion
(excluding the diagnostic portion retained by the IBEX Group and the
diagnostic, reagent and limited therapeutic use portion licensed to the
IBEX Group pursuant to the agreement set forth in Schedule 11.1(g)) of
the research, development, manufacture, use, sale, production,
technology and marketing Worldwide of the IBEX Pharma Products.
-8-
"IBEX Pharma Worldwide Excluded Assets" has the meaning ascribed
thereto in section 2.5.
"IBEX Pharma Worldwide Fixed Assets" means all of the machinery,
equipment, moveable property, chattels and other assets located in
Canada and described in section 2.1(b), save and except the Filter
Technology.
"IBEX Pharma Worldwide Intellectual Property" means all Intellectual
Property owned or Controlled by IBEX Pharma, IBEX R&D or IBEX relating
to or being used in connection with the IBEX Pharma Worldwide Business,
including, without limitation, those identified in Schedule 2.1(c), but
excluding the IBEX Pharma Worldwide Excluded Assets.
"IBEX Pharma Worldwide Inventory" means all inventories of and
pertaining to the IBEX Pharma Worldwide Business, including without
limitation, clinical supply materials, packaging materials,
raw, semi-finished and finished products, work in progress, raw
materials, all other materials and supplies on hand to be used or
consumed in the production of products, work in progress, items
purchased for resale and inventories in transit from suppliers if paid
for or owned by IBEX Pharma, IBEX R&D or IBEX and all inventories of
general stores and supplies (if any), likewise if paid for or owned by
IBEX Pharma, IBEX R&D or IBEX, including without limitation, those
described in Schedule 2.1(d), but excluding the IBEX Pharma Worldwide
Excluded Assets.
"IBEX R&D" means Technologies IBEX R&D Inc., a Quebec company.
"IBEX Year End" has the meaning ascribed thereto in section 5.1(p).
"Indemnified Party" has the meaning ascribed thereto in section 10.3.
"Indemnitor" has the meaning ascribed thereto in section 10.3.
"Intellectual Property" means any or all of the following and all
rights in, arising out of, or associated therewith: (i) all United
States and other Worldwide patents (including utility models,
supplementary protection certificates and applications therefor) and
all reissues, divisions, renewals, extensions, provisionals,
continuations and continuations-in-part thereof and equivalent or
similar rights Worldwide in inventions and discoveries; (ii) all
inventions (whether patentable or not), improvements, trade secrets,
proprietary information, know-how, technology, technical data research
notes, computer system architecture and customer lists and all
documentation embodying or evidencing any of the foregoing; (iii) all
copyrights, copyright registrations and applications therefor and all
other rights corresponding thereto Worldwide; (iv) all mask works, mask
work registrations and applications therefor and any equivalent or
similar rights in semiconductor masks, layouts, architectures or
topology; (v) all industrial designs and any registrations and
applications therefor in Canada and Worldwide; (vi) all trade names,
-9-
logos, common law trademarks and service marks, trademark and service
mark registrations and applications therefor and all goodwill
associated therewith Worldwide; (vii) all rights in databases and data
collections Worldwide; (viii) all rights in Software, data, databases,
web content and Internet sites Worldwide; (ix) all rights in domain
names, domain name registrations and applications therefor Worldwide;
and (x) any similar, corresponding or equivalent rights to any of the
foregoing Worldwide.
"IRS" means the Internal Revenue Service of the United States.
"Law" means any Canadian federal, provincial, municipal, local or any
US federal, state or local or any other foreign statute, law,
ordinance, regulation, rule, code, order, requirement or rule of law
(including without limitation, common law).
"Liabilities" means any and all debts, liabilities and obligations,
whether accrued or fixed, absolute or contingent, matured or unmatured
or determined or determinable, including without limitation, those
arising under any Law (including without limitation, any Environmental
Law), action or Governmental Order and those arising under any
contract, agreement, arrangement, commitment or undertaking.
"Losses" means any and all claims, demands, debts, suits, actions,
obligations, proceedings, losses, damages, liabilities, deficiencies,
costs and expenses (including without limitation, all reasonable legal
and other professional fees and disbursements, interest, penalties and
amounts paid in settlement).
"Material Adverse Effect" means a material adverse effect on the
business, assets, liabilities, condition (financial or otherwise),
operations or prospects of the Party in question.
"Minimum Threshold" has the meaning ascribed thereto in section 10.6.
"NDA" means a New Drug Application in accordance with the requirements
of the FDA.
"Neutralase" means the product Heparinase I in respect of its use in a
biopharmaceutical human therapeutic business.
"Neutralase Contingency Payment" means 18,280,872 multiplied by
Cdn.$0.50 or Cdn.$9,140,436.
"Parties" means collectively, the parties to this Agreement.
"Permits and Licenses" has the meaning ascribed thereto in section
5.1(r).
-10-
"Person" means any individual, partnership, company, corporation, firm,
unincorporated association, joint venture, trust however designated or
constituted or wheresoever organized and any Governmental Authority.
"Phenylase" means the therapeutic application of Phenylalanine Ammonia
Lyase.
"Phenylase Contingency Payment" means 18,280,872 multiplied by
Cdn.$0.30 or Cdn.$5,484,262.
"Products" means collectively, the IBEX LLC Products and the IBEX
Pharma Products.
"Quebec Securities Commission Approval" has the meaning set forth in
section 12.1(j).
"Regulations" means the Treasury Regulations (including Temporary
Regulations) promulgated by the United States Department of Treasury
with respect to the Code or other federal tax statutes.
"Release" means disposing, discharging, injecting, spilling, leaking,
leaching, dumping, emitting, escaping, emptying, seeping, placing and
the like into or upon any land, water or air or otherwise entering into
the Environment.
"Representatives" has the meaning ascribed thereto in section 9.2.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Software" means computer software and programs in any form, including
source code, object code, operating systems and specifications,
database management code, utilities, graphical user interfaces, menus,
images, icons, forms, methods of processing, software engines,
platforms and data formats, all versions, updates, corrections,
enhancements and modifications thereof and all related documentation,
developer notes, comments and annotations.
"Successor Company" has the meaning ascribed thereto in section 14.5.
"Suspension Period" has the meaning ascribed thereto in section 7.1(b).
"Tax Act" means The Income Tax Act (Canada).
"Taxes" means all taxes and any liability, whether disputed or not,
imposed by Canada or the United States or any province, state or
municipality thereof or by any other country or foreign government or
any subdivision or agency thereof.
-11-
"Therapeutic Assets" means the assets currently used, owned or
Controlled by the members of the IBEX Group in the conduct of their
biopharmaceutical human therapeutic business.
"Third Party Claim" has the meaning ascribed thereto in section 10.3.
"Time of Closing" means 2:00 p.m. (New York time) on the Closing Date
or if the Worldwide Transaction is not completed at such time, then
such other time on the Closing Date on which the Worldwide Transaction
is completed.
"Vendors" has the meaning ascribed thereto in the preambles to this
Agreement.
"Worldwide" means throughout the world, exclusive of Canada.
"Worldwide Assets" means collectively, the IBEX Pharma Worldwide Assets
and the IBEX LLC Worldwide Assets.
"Worldwide Assigned Rights" has the meaning ascribed thereto in section
12.1(l).
"Worldwide Assigned Rights Consents" has the meaning ascribed thereto
in section 12.1(l).
"Worldwide Purchase Price" has the meaning ascribed thereto in section
3.1.
"Worldwide Transaction" means the purchase and sale of the Worldwide
Assets as contemplated by this Agreement.
All capitalized terms used but not otherwise defined in this Agreement
shall have their respective meanings set forth in the Canadian Purchase
Agreement.
1.2 Act. Any reference in this Agreement to any act, by-law, rule or
regulation or to a provision thereof shall be deemed to include a reference to
any act, by-law, rule, regulation or provision enacted in substitution or
amendment thereof.
1.3 New York Time. Except where otherwise expressly provided in this
Agreement any reference to time shall be deemed to be a reference to New York
time.
1.4 Gender and Extended Meanings. In this Agreement words and personal
pronouns relating thereto shall be read and construed as the number and gender
of the party or parties referred to in each case require and the verb shall be
construed as agreeing with the required word and pronoun. For greater certainty
and without limitation, in this Agreement the word "shall" has the same meaning
as the word "will".
1.5 Canadian Dollars and Payment. All dollar amounts referred to in this
Agreement are in Canadian funds, unless otherwise expressly specified.
-12-
1.6 Section Headings. The division of this Agreement into sections is for the
convenience of reference only and shall not effect the interpretation or
construction of this Agreement.
1.7 Business Day. If the date for the taking of any action under this
Agreement falls on a day which is not a Business Day, then such action shall be
taken on the next following Business Day.
1.8 Ordinary Course. For the purposes of this Agreement, a transaction or
activity shall be considered to be in the ordinary course of business of IBEX
Group Worldwide Business if it constitutes an ordinary business activity of the
Vendors relating to the IBEX Group Worldwide Business conducted in a
commercially reasonable and business-like manner consistent with past practices
of the Vendors in respect of the IBEX Group Worldwide Business.
2. AGREEMENT TO PURCHASE AND SELL
2.1 IBEX Pharma Worldwide Assets. Based on the covenants, representations
and warranties set forth herein and subject to the conditions herein, IBEX
Pharma, IBEX R&D and IBEX hereby agree to sell, transfer, assign, convey and set
over to BioMarin US and BioMarin US hereby agrees to purchase from IBEX Pharma,
IBEX R&D and IBEX on the Closing Date, free and clear of any and all
Encumbrances, with good and marketable title thereto, all of the following with
the exception of the Filter Technology:
(a) IBEX Pharma Worldwide Fixed Assets. The fixed assets
owned or used by IBEX Pharma, IBEX R&D or IBEX in the
operation of the IBEX Pharma Worldwide Business, as itemized
at Schedule 2.1(a), on an "as is - where is" basis without
warranty, except as to title.
(b) Contracts, Permits and Licenses. The Contracts to which
IBEX Pharma, IBEX R&D or IBEX is a party or otherwise a
beneficiary and the Permits and Licenses obtained by IBEX
Pharma, IBEX R&D or IBEX, in each case in connection with the
IBEX Pharma Worldwide Business, as itemized at Schedule
2.1(b).
(c) IBEX Pharma Worldwide Inventory. The IBEX Pharma Worldwide
Inventory, as itemized at Schedule 2.1(c).
(d) IBEX Pharma Worldwide Intellectual Property. The IBEX Pharma
Worldwide Intellectual Property, as itemized at Schedule
2.1(d).
(e) All Pre-Clinical and Clinical Trial Data. All pre-clinical and
clinical trial data owned or Controlled by IBEX Pharma, IBEX
R&D or IBEX relating to the Therapeutic Assets or the IBEX
Pharma Products located outside of Canada.
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2.2 IBEX Pharma Worldwide Assumed Liabilities. From and after the Closing
Date, BioMarin US shall assume and perform in due course only those liabilities
of IBEX Pharma, IBEX R&D and IBEX in connection with the IBEX Pharma Worldwide
Business listed on Schedule 2.2 (the "IBEX Pharma Worldwide Assumed
Liabilities"). Notwithstanding anything to the contrary contained in this
Agreement, BioMarin US shall not assume or have any responsibility for any of
the Excluded Liabilities. As and by way of a post-closing covenant, the members
of the BioMarin Group shall jointly and severally indemnify and save harmless
IBEX Pharma, IBEX R&D and IBEX from all Losses which may be incurred by IBEX
Pharma, IBEX R&D or IBEX in respect of the IBEX Pharma Worldwide Assumed
Liabilities, arising from and after the Closing Date, and the members of the
IBEX Group shall, jointly and severally, indemnify and save harmless the members
of the BioMarin Group from all Losses which may be incurred by the BioMarin
Group in respect of the Excluded Liabilities.
2.3 IBEX LLC Worldwide Assets. Based on the covenants, representations and
warranties set forth herein and subject to the conditions herein, IBEX LLC and
IBEX Corp. hereby agree to sell, transfer, assign, convey and set over to
BioMarin US and BioMarin US hereby agrees to purchase from IBEX LLC and IBEX
Corp. on the Closing Date, free and clear of any and all Encumbrances, with good
and marketable title thereto, all of the following:
(a) IBEX LLC Worldwide Fixed Assets. The fixed assets owned
or used by IBEX LLC or IBEX Corp. in the operation of the IBEX
LLC Worldwide Business as itemized at Schedule 2.3(a), on an
"as is - where is" basis without warranty, except as to title.
(b) Contracts, Permits and Licenses. The Contracts to which IBEX
LLC or IBEX Corp. is a party or otherwise a beneficiary and
the Permits and Licenses obtained by IBEX LLC or IBEX Corp.,
in each case in connection with the IBEX LLC Worldwide
Business, as itemized at Schedule 2.3(b).
(c) IBEX LLC Worldwide Inventory. The IBEX LLC Worldwide
Inventory, as itemized at Schedule 2.3(c).
(d) IBEX LLC Worldwide Intellectual Property. The IBEX LLC
Worldwide Intellectual Property, as itemized at Schedule
2.3(d).
(e) All Pre-Clinical and Clinical Trial Data. All pre-clinical
and clinical trial data owned or Controlled by IBEX LLC or
IBEX Corp. relating to the Therapeutic Assets or the IBEX LLC
Products.
2.4 IBEX LLC Worldwide Assumed Liabilities. From and after the Closing Date,
BioMarin US shall assume and perform in due course only those liabilities of
IBEX LLC and IBEX Corp. in connection with the IBEX LLC Worldwide Business
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listed on Schedule 2.4 (the "IBEX LLC Worldwide Assumed Liabilities").
Notwithstanding anything to the contrary contained in this Agreement, BioMarin
US shall not assume or have any responsibility for any of the Excluded
Liabilities. As and by way of a post-closing covenant, the members of the
BioMarin Group shall jointly and severally indemnify and save harmless IBEX LLC
and IBEX Corp. from all Losses which may be incurred by IBEX LLC or IBEX Corp.
in respect of the IBEX LLC Worldwide Assumed Liabilities, arising from and after
the Closing Date and the members of the IBEX Group shall jointly and severally
indemnify and save harmless the members of the BioMarin Group from all Losses
which may be incurred by the BioMarin Group in respect of the Excluded
Liabilities.
2.5 Excluded Assets. For greater certainty and without limitation, the assets
of IBEX Pharma and IBEX LLC that are not being sold in connection with,
respectively, the IBEX Group Worldwide Business, are itemized or described at
Schedule 2.5 and constitute respectively, the "IBEX Pharma Worldwide Excluded
Assets" and the "IBEX LLC Worldwide Excluded Assets" which do not form a part of
the Worldwide Assets.
3. WORLDWIDE PURCHASE PRICE FOR WORLDWIDE ASSETS AND TAXES
3.1 Worldwide Purchase Price. The purchase price for the Worldwide Assets
which includes, for purposes of this section, the Filter Technology (the
"Worldwide Purchase Price") shall be an amount equal to Cdn.$15,131,076 plus the
value of the Assumed Worldwide Liabilities.
3.2 Payment of Worldwide Purchase Price. The Worldwide Purchase Price
shall be paid on the Closing Date by: (i) the assumption by BioMarin US of the
Assumed Worldwide Liabilities; (ii) the delivery by BioMarin to the Vendors in
accordance with Schedule 3.2 of certificates representing the BioMarin Worldwide
Transaction Shares; and (iii) the delivery by BioMarin to the Vendors in
accordance with Schedule 3.2 of the Cash Payment.
3.3 Allocation of Worldwide Purchase Price. The Worldwide Purchase Price
shall be allocated among the Worldwide Assets as set out in Schedule 3.3 and the
Parties shall co-operate in the filing of elections under any applicable
taxation statutes as may be necessary or desirable to give effect to such
allocation.
3.4 Retail Sales Tax. Within 30 days of Closing, BioMarin US shall pay to all
relevant federal, state and municipal authorities, any exigible sales tax on the
Worldwide Assets.
3.5 Contingency Payments. From and after Closing, but as hereinafter provided,
BioMarin shall additionally pay by certified cheque or wire transfer, payable at
par, in immediately available funds in Canadian dollars, the following: (i) to
IBEX Corp, the Neutralase Contingency Payment, not later than five Business Days
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following such time as Neutralase achieves initial NDA approval by the FDA for
the marketing of such product in the United States, if at all, provided that
such approval is procured prior to the fifth anniversary of the Closing Date;
and (b) to IBEX Pharma, the Phenalyse Contingency Payment, not later than five
Business Days following such time as Phenalyse achieves initial NDA approval by
the FDA for the marketing of such product in the United States, if at all,
provided that such approval is procured prior to the fifth anniversary of the
Closing Date. The members of the BioMarin Group shall advise the Vendors
forthwith upon receipt of either or both of the aforesaid approvals. The
covenant of BioMarin to pay the Neutralase Contingency Payment and the Phenalyse
Contingency Payment shall be construed as post-closing covenants.
4. CLOSING
4.1 Closing. Closing shall occur at the Time of Closing at the offices of
Messrs. Cassels Brock & Blackwell LLP, Scotia Plaza, Suite 2100, 40 King Street
West, Toronto, Ontario or at such other place or other time and date as the
Parties may agree. Any cheque, document, share certificate, instrument or thing
which is to be delivered by any Party at the Closing shall be tabled at the
Closing at the place of closing referred to above by the Party that is to
deliver such cheque, document, instrument or thing and any cheque, document,
share certificate, instrument or thing so tabled by a Party shall:
(a) be deemed to have been delivered by such Party for the
purposes of this Agreement;
(b) be held in escrow by counsel for such Party to be dealt with
in accordance with paragraphs (c) and (d);
(c) be delivered to the Party to which it is to be delivered
pursuant to the terms hereof, if all cheques, documents, share
certificates, instruments and things that are to be delivered
at Closing are tabled in accordance with this section at
Closing; and
(d) be delivered to or in accordance with the directions of, the
Party which tabled it, if paragraph (c) does not apply.
5. REPRESENTATIONS AND WARRANTIES OF THE MEMBERS OF THE IBEX GROUP
5.1 Representations and Warranties. The members of IBEX Group hereby jointly
and severally represent and warrant to the members of the BioMarin Group as
follows and acknowledge and confirm that the members of the BioMarin Group are
relying upon such representations and warranties in connection with the
Worldwide Transaction and that unless otherwise indicated herein, such
representations and warranties shall be true and correct as at the Closing Date:
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(a) Organization. Each member of the IBEX Group is duly
incorporated or organized, as applicable, and validly
subsisting under the laws of its jurisdiction of incorporation
or organization and has the power (including full corporate
power as applicable) to own or lease its property and to carry
on its business as it is now being conducted. Each of the
Vendors is duly qualified to do business and carries on
business in those jurisdictions wherein the failure to so
qualify could have a Material Adverse Effect, being those
jurisdictions set forth on Schedule 5.1(a).
(b) Corporate Authority. Each of the Vendors now has and on the
Closing Date will have full power and authority (including full
corporate power and authority as applicable) to sell the
Worldwide Assets, free and clear of any and all Encumbrances,
subject to the rights of creditors pursuant to the Bulk Sales
Carve-Out. Each member of the IBEX Group now has and on the
Closing Date will have the full power and authority (including
full corporate power and authority as applicable) to execute and
deliver this Agreement and to carry out all of the terms and
conditions hereof on the part of the respective members of the
IBEX Group to be carried out. The execution and delivery of this
Agreement and the consummation of the Worldwide Transaction have
been duly authorized by all necessary corporate or entity
action, including without limitation, all necessary actions by
the respective officers, directors, stockholders, members and
managers, as applicable, on the part of each member of the IBEX
Group.
(c) No Violations. The execution and delivery of this Agreement
and all other agreements contemplated herein by each member of
the IBEX Group and the observance and performance of the terms
and provisions of this Agreement and any such agreements; (i)
does not and will not require any member of the IBEX Group to
obtain or make any consent, authorization, approval, filing or
registration under any Law, subject to the Bulk Sales Carve-Out
and the procurement of the Worldwide Assigned Rights Consents,
which is binding upon any member of the IBEX Group; (ii) does
not and will not constitute a violation or breach of the charter
documents, operating agreements or by-laws of any member of the
IBEX Group; (iii) does not and will not constitute a violation
or breach of any Law, subject to the Bulk Sales Carve-Out,
applicable to any member of the IBEX Group; (iv) does not and
will not constitute a default or breach (nor would with the
passage of time or the giving of notice or both or otherwise,
constitute a default or breach) under any Contract having an
aggregate value of a minimum of Cdn.$10,000 to which any member
of the IBEX Group is a party or by which any member of the IBEX
Group is bound, subject to procurement of the Worldwide Assigned
Rights Consents; and (v) does not and will not result in the
creation or imposition of any Encumbrance on all or part of the
Worldwide Assets, subject to the rights of creditors pursuant to
the Bulk Sales Carve-Out.
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(d) Enforceability of Obligations. This Agreement constitutes a
valid and binding obligation of each member of the IBEX Group,
enforceable against each member of the IBEX Group in
accordance with its terms, subject however to limitations with
respect to enforcement imposed by law in connection with
bankruptcy, insolvency, reorganization or other laws affecting
creditors' rights generally.
(e) Acts of Bankruptcy. None of the members of the IBEX Group is
insolvent, has proposed a compromise or arrangement to its
creditors generally, has taken any proceeding with respect to
a compromise or arrangement, has taken any proceeding to have
itself declared bankrupt or wound-up, has taken any proceeding
to have a receiver appointed of any part of its assets and at
present, no encumbrancer or receiver has taken possession of
any of its property and no execution or distress is
enforceable or levied upon any of its property and no petition
for a receiving order in bankruptcy is filed against it.
(f) Resident. Each of the Vendors is a resident of and maintains
its principal place of business in the country and, as
applicable, the state, province, municipality, county and city
set out in Schedule 5.1(f).
(g) Title. Each of the Vendors now has and on the Closing Date will
have good and marketable title to the Worldwide Assets to be
conveyed by such Vendor and the Vendors, collectively, now have
and on the Closing Date will have good and marketable title to
all of the Worldwide Assets, in each case, free and clear of any
and all Encumbrances, subject to the rights of creditors pursuant
to the Bulk Sales Carve-Out. The Vendors (and no other member of
the IBEX Group or their respective Affiliates) are the only
owners of the Worldwide Assets. Upon transfer of the Worldwide
Assets to BioMarin US on the Closing Date pursuant to this
Agreement, BioMarin US will acquire good and marketable title to
all of the Worldwide Assets free and clear of any and all
Encumbrances, subject to the rights of creditors pursuant to the
Bulk Sales Carve-Out. Each of the Vendors is exclusively entitled
to possess and dispose of the Worldwide Assets, as the case may
be. To the Best Knowledge of the members of the IBEX Group, no
other Person owns or uses any assets that are required to carry
on the IBEX Group Worldwide Business as currently conducted. All
tangible (corporeal) assets forming a part of the Worldwide
Assets are located as indicated at Schedule 2.1(a) and Schedule
2.3(a). The Worldwide Assets represent all of the Therapeutic
Assets consisting of Intellectual Property, Contracts, Permits
and Licenses, pre-clinical and clinical trial data and books and
records other than the Canadian Assets (as defined in the
Canadian Purchase Agreement).
(h) Certain Interests. No member of the IBEX Group and no
shareholder, officer, director or Affiliate of any member of the
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IBEX Group nor any relative or spouse (or relative of such
spouse) who resides with, or is a dependent of any such Person,
owns, directly or indirectly, in whole or in part or has any
other interest in any tangible or intangible property which any
of the Vendors uses or has used in connection with the IBEX Group
Worldwide Business.
(i) Absence of Conflicting Agreements. No Person has any
written or oral agreement, option, understanding or commitment
or any right or privilege capable of becoming an agreement,
for the purchase from any of the Vendors of any right, title
or interest in or to any of the Worldwide Assets and there has
been no assignment, subletting or granting of any license (of
occupation or otherwise) of or in respect of any of the
Worldwide Assets.
(j) Suppliers. Schedule 5.1(j) contains a list of the
suppliers of materials and/or services to the Vendors in
connection with the IBEX Group Worldwide Business during the
twelve month period ended on the date hereof. There is no
sole-source supplier of significant materials or services to
the IBEX Group Worldwide Business with respect to which
practical alternative sources of supply are not available on
comparable terms and conditions. There are no contingency
payments or commitments payable to any suppliers of materials
and/or services other than as indicated in Schedule 5.1(j).
(k) Clinical Sites. Schedule 5.1(k) contains a list of the clinical
sites of the Vendors in connection with the IBEX Group Worldwide
Business during the twelve-month period ended July 31, 2001. To
the Best Knowledge of the members of the IBEX Group, the
relations between the Vendors and the clinical sites of the IBEX
Group Worldwide Business are mutually satisfactory. None of the
members of the IBEX Group have received written notice and, to
the Actual Knowledge of the members of the IBEX Group, none of
the members of the IBEX Group have otherwise been made aware of,
any possible termination of normal relations with any such Person
in connection with the IBEX Group Worldwide Business which
termination may have a Material Adverse Effect on the IBEX Group
Worldwide Business.
(l) Litigation. There are no Claims at Law or in equity or
before or by any Governmental Authority, either pending or
outstanding or, to the Actual Knowledge of the members of the
IBEX Group, threatened against any member of the IBEX Group,
relating to any member of the IBEX Group or which may have a
Material Adverse Effect on the IBEX Group Worldwide Business,
any of the Worldwide Assets or the Worldwide Transaction.
(m) Inventory. Except as set forth in Schedule 5.1(m), all
items of the IBEX Pharma Worldwide Inventory itemized at
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Schedule 2.1(c) and all items of the IBEX LLC Worldwide
Inventory itemized at Schedule 2.3(c) have been produced in
accordance with current Good Manufacturing Practices as
established by all applicable Governmental Authorities
including the FDA. The IBEX Pharma Worldwide Inventory and the
IBEX LLC Worldwide Inventory represent that proportion of the
total inventory of the IBEX Group relating to the Products set
forth at Schedule 2.1(c) and 2.3(c).
(n) Absence of Changes. Since July 31, 2000, there has not been and
up to the Closing Date there will not be;
(i) any event or occurrence which either individually or
in the aggregate with other events or occurrences
that has resulted in or will result in a Material
Adverse Effect on the condition or operation of the
IBEX Group Worldwide Business and/or the Worldwide
Assets, or
(ii) any damage, destruction or loss, labour trouble
or other event, development or condition of any
character (whether or not covered by insurance) which
would have a Material Adverse Effect on the IBEX
Group Worldwide Business and/or the Worldwide Assets.
(o) Absence of Unusual Transaction. Since July 30, 2000, none of the
Vendors has and up to the Closing Date none of the Vendors will
have;
(i) transferred, assigned, sold or otherwise
disposed of any of the Worldwide Assets or cancelled
any debts or claims with respect thereto, except in
each case for fair consideration and in the ordinary
and usual course of the IBEX Group Worldwide
Business;
(ii) waived any rights of substantial value or
entered into any commitment or transaction with
respect to the Worldwide Asset or the IBEX Group
Worldwide Business where such rights, commitment or
transaction is or would be material in relation to
any of the IBEX Group Worldwide Business or the
Worldwide Assets, as the case may be;
(iii) made any general wage or salary increases in
respect of, or material changes to the benefits, of
the Transferred Employees, except in the ordinary
course of business;
(iv) mortgaged, pledged, subjected to lien,
hypothecated, granted a security interest in or
otherwise encumbered any of the Worldwide Assets,
whether tangible or intangible, corporeal or
incorporeal;
(v) delayed or postponed the payment of accounts
payable or other Liabilities with respect to the
Worldwide Assets or in connection with the IBEX Group
Worldwide Business outside the ordinary and usual
course of the IBEX Group Worldwide Business;
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(vi) incurred any forward commitments for supplies
or materials or prepaid services in connection with
the Worldwide Assets or the IBEX Group Worldwide
Business except in the ordinary course of the IBEX
Group Worldwide Business;
(vii) made any capital expenditures except in the ordinary
course of the IBEX Group Worldwide Business; or
(viii) authorized or agreed or otherwise become committed to
do any of the foregoing.
(p) Financial Statements. A true copy of the unaudited
financial statements of IBEX and the statements of operations
and retained earnings and of changes in financial position of
IBEX as at July 31, 2001 (the "IBEX Year End"), the internally
prepared statements of operations and retained earnings and of
changes in financial position of IBEX as at July 31, 2001 and
the audited consolidated financial statements of IBEX as at
July 31, 2000 (collectively, the "IBEX Financial Statements")
is annexed hereto as Schedule 5.1(p). The IBEX Financial
Statements:
(i) Have been prepared in accordance with Canadian
generally accepted accounting principles applied on
a basis consistent with those of the preceding fiscal
period.
(ii) Present fairly, among other things, the Worldwide
Assets, liabilities and financial position of IBEX
(on a consolidated basis) as at the IBEX Year End and
the period indicated, as the case may be, and the
results of operations for the period then ended.
Other than as disclosed in the Schedules hereto, and
the liabilities specified in the balance sheet
forming part of the IBEX Financial Statements
or incurred since the IBEX Year End in the ordinary
course of business (all of which are consistent with
past practice and are not, in the aggregate material
to the financial condition of the members of the IBEX
Group)or otherwise noted or disclosed in this
Agreement, there are no liabilities or obligations of
any of the members of the IBEX Group (whether
absolute, contingent or otherwise), including
without limitation, any Tax liabilities, due or to
become due or contingent losses for unasserted claims
which are capable of assertion, which may be and
become the responsibility or obligation of BioMarin
US from and after the Closing Date.
(iii) Are substantially in accordance with the books and
records of IBEX (on a consolidated basis).
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(iv) Contain and reflect all necessary adjustments
or a fair presentation of the results of operations
and financial position of IBEX (on a consolidated
basis) for the period covered thereby.
(v) Contain and reflect adequate provision or
allowance for all reasonably anticipated liabilities,
expenses and losses of IBEX (on a consolidated
basis).
(q) Books of Account. The books of account and financial
records of the Vendors fairly set out and disclose, in all
material respects, the current financial position of the IBEX
Group Worldwide Business. All material transactions with
respect to the Worldwide Assets and the IBEX Group Worldwide
Business have been accurately recorded in such books and
records. All bonuses, commissions and other payments relating
to the Therapeutic Asset Employees are reflected in the books
of IBEX in a manner consistent with past record keeping
practices and none of such payables are in arrears.
(r) Permits and Licenses. Schedule 5.1(r) contains a full, complete
and accurate list of all permits, certificates, licenses,
approvals, consents and other authorizations (collectively, the
"Permits and Licenses") obtained to carry on and conduct the IBEX
Group Worldwide Business and to own, lease or operate its
respective Worldwide Assets at the places and in the manner in
which the IBEX Group Worldwide Business is currently conducted.
The consummation of the Worldwide Transaction will not result in
the revocation, suspension or limitation of any of the Permits
and Licenses. The conduct of the IBEX Group Worldwide Business as
currently conducted by the members of the IBEX Group is not
impeded by the absence of any Permit or License and the members
of the IBEX Group are not aware of any Permits or Licenses
required to carry on and conduct the IBEX Group Worldwide
Business as currently conducted other than as itemized in
Schedule 5.1(r).
(s) Material Contracts. Except for the Contracts listed in Schedule
5.1(s), no member of the IBEX Group or any of its Affiliates is a
party to nor bound by any Contract with respect to the Worldwide
Assets, the IBEX Pharma Canadian Assets (as defined in the
Canadian Purchase Agreement), the IBEX Group Worldwide Business
or the IBEX Pharma Canadian Business (as defined in the Canadian
Purchase Agreement). Schedule 5.1(s) additionally sets forth a
true and complete list of all Worldwide Assigned Rights and
Canadian Assigned Rights (as defined in the Canadian Purchase
Agreement) requiring the consent of any party thereto as a result
of the Worldwide Transaction or the Canadian Transaction and all
additional consents, authorizations and approvals of any Person
to or as a result of the consummation of the Worldwide
Transaction. All such consents, authorizations and approvals
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described in Schedule 5.1(s) will be lawfully and validly
obtained prior to or after the Closing Date (as indicated in such
Schedule). For greater certainty and without limitation, the
members of the IBEX Group have no unfilled orders in connection
with the IBEX Group Worldwide Business and no forward commitments
for suppliers or materials. The Contracts listed in Schedule
5.1(s) having a minimum aggregate value of CDN$10,000 are all in
full force and effect, unamended and no material default or
breach exists (nor would the passage of time or the giving of
notice of both or otherwise, constitute a default or breach) in
respect thereof on the part of any of the parties thereto. No
member of the IBEX Group has entered into any Contract limiting
or restricting the IBEX Group Worldwide Business.
(t) Employees, etc. There are set forth in Schedule 5.1(t),
the names and titles of all Therapeutic Asset Employees
employed or engaged by the members of the IBEX Group in
connection with the IBEX Group Worldwide Business, together
with particulars of the material terms and conditions of
employment or engagement of such persons, including without
limitation, rates of remuneration, benefits, all accrued
and/or deferred compensation, benefits and remuneration,
positions held and the length of their employment.
(u) Employee Plans. Except as set forth in Schedule 5.1(u),
there are no Employee Plans with respect to the Therapeutic
Asset Employees. All obligations of each of the Vendors,
whether arising by operation of Law, by contract, pursuant to
the Employee Plans, by past custom or practice or otherwise,
for salary, severance, vacation and holiday pay, bonuses and
other forms of compensation which were payable to the
Therapeutic Asset Employees for the period ending prior to the
Closing Date, have been paid as of the applicable payment
dates.
(v) Collective Agreements. None of the Vendors nor their Affiliates
has made any agreements with any labour union or employee
association with respect to any of its employees (including any
Therapeutic Asset Employees) and none of the Vendors nor their
Affiliates has made commitments to or conducted negotiations with
any labour union or employee association further to any future
agreements with respect to any of its employees (including any
Therapeutic Asset Employees). To the Best Knowledge of each
member of the IBEX Group, there are no current attempts to
organize or to establish any labour union or employee association
with respect to the Therapeutic Asset Employees.
(w) Labour Matters. There are no controversies pending or to the
Best Knowledge of each Vendor, threatened between any member of
the IBEX Group or their Affiliates and any of the Therapeutic
Asset Employees.
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(x) Insurance. Each of the Vendors maintains such policies of
insurance, issued by responsible insurers, as are appropriate to
the IBEX Group Worldwide Business and the Worldwide Assets, in
such amounts and against such risks as are customarily carried
and insured against by owners of comparable businesses,
properties and assets. All such policies of insurance are in full
force and effect and none of the Vendors is in default thereof,
whether as to the payment of premiums or otherwise under the
terms of any such policy. All of such policies are listed in
Schedule 5.1(x). All premiums in connection with such policies
are fully paid. None of the Vendors has failed to give any notice
or present any Claim under any such insurance policies in due and
timely fashion. The proceeds of such policies are and until
Closing shall continue to be fully payable to the Vendors. None
of the Vendors is in default with respect to any of the
provisions contained in such insurance policies and none of the
Vendors have failed to give any notice or present any claim under
any such insurance policies in due and timely fashion.
(y) Taxes. There are no liens or prior Claims for Taxes
upon any of the Worldwide Assets. Schedule 5.1(y) sets forth
all Taxes upon the Worldwide Assets currently due and payable
and, to the Best Knowledge of the members of the IBEX Group,
all Taxes upon the Worldwide Assets which will become payable
in the next six months, except as may result from the
Worldwide Transaction.
(z) Compliance with Laws. The IBEX Group Worldwide Business has been
conducted and will continue to be conducted through Closing in
accordance with all applicable Laws and Governmental Orders,
except where the failure to comply with such Laws and
Governmental Orders would not have a material adverse effect on
the Worldwide Assets or the condition, operations or prospects of
the IBEX Group Worldwide Business and the Vendors have not
received any notice in writing and, to the Actual Knowledge of
members of the IBEX Group, the members of the IBEX Group have not
otherwise received any notice that the IBEX Group Worldwide
Business is not in violation of any such Law or Governmental
Order. There are no Governmental Orders applicable to the
Worldwide Assets and/or the IBEX Group Worldwide Business.
(aa) Environmental Matters. Each of the Vendors is in compliance with
all Environmental Laws.
(i) Without limiting the generality of the
foregoing, each of the Vendors and their respective
Affiliates has obtained and complied with, and is in
compliance with, all Environmental Permits for the
occupation of its facilities and the operation of the
IBEX Group Worldwide Business. A list of all such
Environmental Permits are set forth on Schedule
5.1(aa).
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(ii) With respect to the IBEX Pharma Canadian Business,
the Canadian Assets and the leased premises of IBEX
located in Pare Street in the Town of Mount Royal,
Quebec, none of the Vendors nor their respective
Affiliates has received any written notice, report or
other information regarding any actual or alleged
violation of any Environmental Law, or any
liabilities or potential liabilities (whether
accrued, absolute, contingent, unliquidated or
otherwise), including any investigatory, remedial or
corrective obligations, relating to any of them or
their facilities arising under any Environmental Law.
(iii) With respect to the IBEX Pharma Canadian Business,
the Canadian Assets and the leased premises of IBEX
located in Pare Street in the Town of Mount Royal,
Quebec, none of the Vendors or their respective
Affiliates has treated, stored, disposed of, arranged
for or permitted the disposal of, transported,
handled or released any substance, including without
limitation, any Hazardous Materials in a manner that
has given or would give rise to liabilities,
including any liability for response costs,
corrective action costs, personal injury, property
damage, natural resources damages or attorney fees,
pursuant to Environmental Law.
(iv) With respect to the IBEX Pharma Canadian
Business, the Canadian Assets and the leased premises
of IBEX located in Pare Street in the Town of Mount
Royal, Quebec, neither the execution and delivery of
this Agreement nor the consummation of the Worldwide
Transaction will result in any obligations for site
investigation or cleanup or notification to or
consent of Government Authorities or third Persons,
pursuant to any of the so-called "transaction-
triggered" or "responsible property transfer"
Environmental Law.
(v) With respect to the IBEX Pharma Canadian
Business, the Canadian Assets and the leased premises
of IBEX located in Pare Street in the Town of Mount
Royal, Quebec, neither the Vendors nor any of their
respective Affiliates has either expressly or by
operation of law assumed or undertaken any liability,
including without limitation, any obligation for
corrective or remedial action of any other Person
relating to Environmental Laws.
(bb) IBEX Group Worldwide Intellectual Property.
(i) The Vendors collectively own all right, title and
interest in or have the right to use pursuant to a
valid license, sublicense agreement or permission,
all of the IBEX Group Worldwide Intellectual Property
used in the conduct of the IBEX Group Worldwide
Business as presently conducted and have the right to
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use, execute, reproduce, display, perform, modify,
enhance, distribute, prepare derivative works from
and sublicense the IBEX Group Worldwide Intellectual
Property, without requirement to make royalty or
other payments to any other Person (except in the
case of the IBEX Group Worldwide Intellectual
Property licensed by any of the Vendors, from a third
Person licensor where the terms of such license make
provision for royalties or other payments and the
terms of such royalties or other payments are listed
on Schedule 5.1(bb)(i)). Schedules 2.1(d), and 2.3(d)
set forth a true and complete list of all of the
Intellectual Property used in the current conduct of
the IBEX Group Worldwide Business and all other
filings, applications, registrations or other formal
actions taken with respect to the foregoing pursuant
to federal, state, local and foreign law or
regulations with respect to protections of
intellectual property as well as a nonconfidential
disclosure of inventions owned and used in the
current conduct of the IBEX Group Worldwide Business,
provided that such schedules shall in no way limit
the IBEX Group Worldwide Intellectual Property to be
transferred to BioMarin US pursuant to this
Agreement. None of the Vendors has received written
notice of any loss, cancellation, termination or
expiration of any such application, registration or
other filings or formal actions that are owned or
controlled by any of the Vendors in connection with
the IBEX Group Worldwide Business.
(ii) No member of the IBEX Group has received any written
and, to the Actual Knowledge of the members of
the IBEX Group, no members of the IBEX Group has
received any oral, communication alleging that the
operation of the IBEX Group Worldwide Business as
currently conducted, the use of the IBEX Group
Worldwide Intellectual Property in connection
therewith and the transmission, use, linking and
other practices related to the operation of the
Vendors' respective web sites in connection with the
IBEX Group Worldwide Business, the content thereof
and the advertisements contained therein, conflict
with, infringe, misappropriate or otherwise violate
third Person Intellectual Property or other
proprietary rights, including rights of privacy,
publicity and endorsement of any third Person and no
Claims are pending or, to the Actual Knowledge of the
members of the IBEX Group, threatened against any of
the Vendors or their Affiliates alleging any of the
foregoing. No member of the IBEX Group has received
any written and, to the Actual Knowledge of the
members of the IBEX Group, no members of the IBEX
Group has received any oral, communication alleging
that any member of the IBEX Group has violated or
misappropriated any rights relating to third Person
Intellectual Property nor has any reason to believe
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that any member of the IBEX Group has violated or is
violating or misappropriating any rights relating to
third Person Intellectual Property, except as
disclosed in Schedule 5.1(bb)(ii). The IBEX Group
Worldwide Intellectual Property includes all of the
Intellectual Property used in the ordinary day-to-day
conduct of the IBEX Group Worldwide Business. Each
item of the IBEX Group Worldwide Intellectual
Property is subsisting, valid and enforceable and has
not been adjudged invalid or unenforceable in whole
or part. All registrations and filings related to the
IBEX Group Worldwide Intellectual Property owned by
members of the IBEX Group are in good standing and
all maintenance and renewal fees necessary to
preserve the rights of the IBEX Group in respect of
the IBEX Group Worldwide Intellectual Property have
been paid. Except as disclosed in Schedule 5.1(bb)
(ii), no Claim has been asserted or is pending or, to
the Actual Knowledge of the members of the IBEX
Group, threatened against any of the Vendors or their
Affiliates based upon or challenging or seeking to
deny or restrict the use by any of the Vendors or
their Affiliates of any of the IBEX Group Worldwide
Intellectual Property or alleging that any services
provided by processes used by, or products
manufactured or sold by any of the Vendors infringe
or misappropriate any third Person Intellectual
Property nor to the Actual Knowledge of the members
of the IBEX Group is there any reasonable basis upon
which any such material Claim might at any time be
founded.
(iii) To the Best Knowledge of each of the members of the
IBEX Group, the Software forming part of the IBEX
Group Worldwide Intellectual Property, which may
contain viruses, worms, Trojan horses and other
material known contaminants, do not disrupt its
operation because the IBEX Group possesses and uses
anti virus software in connection therewith. No
rights in the Software forming part of the IBEX
Group Worldwide Intellectual Property have been
transferred to any third Person. Each of the Vendors
has the right to use all Software development tools,
library functions, compilers and other third Person
software that are material to the IBEX Group
Worldwide Business or that are required to operate or
modify the Software forming part of the IBEX Group
Worldwide Intellectual Property.
(iv) Each of the Vendors and their Affiliates has taken
reasonable steps in accordance with normal industry
practice to maintain the confidentiality of the trade
secrets and other confidential Intellectual Property
used in connection with the IBEX Group Worldwide
Business. To the Best Knowledge of the members of the
IBEX Group there has been no misappropriation of any
material trade secrets or other material confidential
Intellectual Property used in connection with the
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IBEX Group Worldwide Business by any Person. To the
Best Knowledge of the members of the IBEX Group, no
employee, independent contractor or agent of any
member of the IBEX Group has misappropriated any
trade secrets of any other Person in the course of
the performance of its duties as an employee,
independent contractor or agent and no employee,
independent contractor or agent of any member of the
IBEX Group is in default or breach of any term of any
employment agreement, non-disclosure agreement,
assignment of invention agreement or similar
agreement or contract relating in any way to the
protection, ownership, development, use or transfer
of intellectual property.
(v) Each employee and independent contractor of
any member of the IBEX Group has executed a valid and
binding assignment of all rights they may hold
related to the IBEX Group Worldwide Intellectual
Property. Each employee and independent contractor of
any member of the IBEX Group has executed a valid and
binding confidentiality agreement pursuant to which
he has agreed to protect the confidential nature of
the IBEX Group Worldwide Intellectual Property and
all other confidential information of any member of
the IBEX Group or relating to any of the Worldwide
Assets.
(cc) No Brokers. There is no broker, finder or other intermediary
acting on behalf of any member of the IBEX Group who has or
will have a Claim against the members of the BioMarin Group
for a brokerage commission, finder's fee or other like
payment for the Worldwide Transaction and as and by way of a
post-closing covenant the members of the IBEX Group will
jointly and severally indemnify and save harmless the
members of the BioMarin Group of and from any such Claim.
(dd) Omissions and Misrepresentations. None of the foregoing
representations and warranties contains any untrue
statement of material fact or omits to state any material
fact necessary to make any such warranty or representation not
misleading.
5.2 Investment Representations. Each Vendor hereby jointly and severally
represents and warrants to BioMarin that:
(a) Such Vendor is acquiring the BioMarin Worldwide
Transaction Shares for investment purposes only, for its own
account and not as nominee or agent for any other Person and
not with the view to or for resale in connection with any
distribution thereof within the meaning of the Securities Act.
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(b) Such Vendor knows of no public solicitation or
advertisement of an offer in connection with the BioMarin
Worldwide Transaction Shares.
(c) Such Vendor has carefully reviewed this Agreement. During the
course of the Worldwide Transaction and prior to the purchase of
the BioMarin Worldwide Transaction Shares, such Vendor has had
the opportunity to ask questions of and receive answers from
BioMarin concerning the terms and conditions of the Worldwide
Transaction and to obtain additional information concerning the
Worldwide Transaction, BioMarin and the BioMarin Worldwide
Transaction Shares. Such Vendor has received all information that
it has requested regarding BioMarin and believes that such
information is sufficient to make an informed decision with
respect to the purchase of the BioMarin Worldwide Transaction
Shares.
(d) Such Vendor is able to bear the economic risk of its
investment in the BioMarin Worldwide Transaction Shares and
has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks
of and protecting its interests with respect to its investment
in the BioMarin Worldwide Transaction Shares. Such Vendor is
aware of the risk involved in its investment in the BioMarin
Worldwide Transaction Shares and has determined that such
investment is suitable for such Vendor in light of its
financial circumstances and available investment
opportunities.
(e) Such Vendor is an "accredited investor" as that term is
defined in Rule 501 of Regulation D promulgated under the
Securities Act.
(f) The purchase by such Vendor of the BioMarin Worldwide
Transaction Shares hereunder does not violate or conflict with
any Law applicable to such Vendor.
(g) Each Vendor hereby further agrees with BioMarin that
the instruments or certificates evidencing the BioMarin
Worldwide Transaction Shares and each instrument or
certificate issued in transfer thereof will bear the following
legend:
"The securities evidenced by this certificate have
not been registered under the Securities Act of 1933
and have been taken for investment purposes only and
not with a view to the distribution thereof, and,
except as stated in an agreement between the holder
of this certificate, or its predecessor in interest,
and the issuer corporation, such securities may not
be sold or transferred unless there is an effective
registration statement under such Act covering such
securities or the issuer corporation receives an
opinion, in form and content reasonably satisfactory
to the issuer corporation, of counsel reasonably
-29-
acceptable to the issuer corporation (which may be
counsel for the issuer corporation) stating that such
sale or transfer is exempt from the registration and
prospectus delivery requirements of such Act."
(h) The instruments or certificates representing the
BioMarin Worldwide Transaction Shares and each instrument or
certificate issued in transfer thereof will also bear any
legend required under any applicable state securities law.
(i) Prior to any proposed sale, assignment, transfer or pledge of any
of the BioMarin Worldwide Transaction Shares by such Vendor,
unless there is in effect a registration statement under the
Securities Act covering the proposed transfer, such Vendor
shall give written notice to BioMarin of such Vendor's
intention to effect such transfer, sale, assignment or
pledge. Each such notice shall describe the manner and
circumstances of the proposed transfer, sale, assignment or
pledge in sufficient detail and shall be accompanied, at
such Vendor's expense, by an unqualified written opinion of
legal counsel who shall and whose legal opinion shall be
reasonably satisfactory to BioMarin addressed to BioMarin
(which may be counsel for BioMarin), to the effect that the
proposed transfer of the BioMarin Worldwide Transaction
Shares may be effected without registration under the
Securities Act, whereupon the holder of such BioMarin
Worldwide Transaction Shares shall be entitled to transfer
such BioMarin Worldwide Transaction Shares in accordance
with the terms of the notice delivered by such Vendor to
BioMarin.
(j) Such Vendor consents to BioMarin's making a notation on
its records or giving instructions to any transfer agent of
its common stock in order to implement the restrictions on
transfer of the BioMarin Worldwide Transaction Shares
mentioned above.
(k) Such Vendor is aware that the BioMarin Worldwide
Transaction Shares are being issued and sold in reliance on an
exemption from the registration requirements of the Securities
Act and that such exemption is expressly conditioned on the
accuracy of the representations and warranties contained in
this section 5.2.
(l) Such Vendor is not a company established solely to acquire the
BioMarin Worldwide Transaction Shares.
(m) Such Vendor has been independently advised as to restrictions
with respect to the trading in the BioMarin Worldwide
Transaction Shares in Canada imposed by applicable Canadian
securities legislation, confirms that: (i) no representation
has been made to it by or on behalf of BioMarin; (ii)
BioMarin is not a "reporting issuer" in any jurisdiction in
Canada; (iii) the applicable "hold period", under the
applicable securities law of Canada will not commence until
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BioMarin becomes a "reporting issuer" in the province of
residence of such Vendor and such Vendor will not be able to
resell the BioMarin Canadian Transaction Shares except in
accordance with limited exemptions under applicable
securities legislation and regulatory policy; and (iv) the
BioMarin Worldwide Transaction Shares will be subject to
resale restrictions.
6. REPRESENTATIONS AND WARRANTIES OF THE MEMBERS OF THE BIOMARIN GROUP
6.1 Representations and Warranties. The members of the BioMarin Group
hereby jointly and severally represent and warrant to the members of the IBEX
Group as follows and acknowledge and confirm that the members of the IBEX Group
are relying upon such representations and warranties in connection with the
Worldwide Transaction and that unless otherwise indicated herein, such
representations and warranties shall be true and correct as at the Closing Date:
(a) Organization. Each of the members of the BioMarin Group is duly
incorporated and validly subsisting under the laws of its
jurisdiction of incorporation and has the power (including full
corporate power) to own or lease its property and to carry on its
business as it is now being conducted.
(b) Corporate Authority. Each of the members of the BioMarin Group
now has and on the Closing Date will have full power and
authority (including full corporate power and authority) to
execute and deliver this Agreement and to carry out all of the
terms and conditions hereof on the part of the members of the
BioMarin Group to be carried out. The execution and delivery of
this Agreement and the consummation of the Worldwide Transaction
have been duly authorized by all necessary corporate action on
the part of the members of the BioMarin Group, including without
limitation, all necessary action by the respective officers,
directors, and stockholders, as applicable.
(c) No Violations. The execution and delivery of this Agreement
and all other agreements contemplated herein by the members
of the BioMarin Group and the observance and performance of
the terms and provisions of this Agreement and any such
agreements; (i) does not and will not require the members of
the BioMarin Group to obtain or make any consent,
authorization, approval, filing or registration under any
Law which is binding upon any member of the BioMarin Group;
(ii) does not and will not constitute a violation or breach
of the charter documents, operating agreements or by-laws of
any member of the BioMarin Group; (iii) does not and will
not constitute a violation or breach of any Law applicable
to any member of the BioMarin Group; and (iv) does not and
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will not constitute a default or breach (nor would with the
passage of time or the giving of notice or both or
otherwise, constitute a default) under any Contract to which
any member of the BioMarin Group is a party, except where
such default would not have a Material Adverse Effect on any
member of the BioMarin Group.
(d) Enforceability of Obligations. This Agreement constitutes a
valid and legally binding obligation of each member of the
BioMarin Group, enforceable against each member of the
BioMarin Group in accordance with its terms, subject however
to limitations with respect to enforcement imposed by law in
connection with bankruptcy, insolvency, reorganization or
other laws affecting creditors' rights generally.
(e) Acts of Bankruptcy. None of the members of the BioMarin
Group is insolvent, has proposed a compromise or arrangement
to its creditors generally, has taken any proceeding with
respect to a compromise or arrangement, has taken any
proceeding to have itself declared bankrupt or wound-up, has
taken any proceeding to have a receiver appointed of any part
of its assets and at present, no encumbrancer or receiver has
taken possession of any of its property and no execution or
distress is enforceable or levied upon any of its property and
no petition for a receiving order in bankruptcy is filed
against it.
(f) Resident. Each member of the BioMarin Group is a
resident of and maintains its principal place of business in
the country and, as applicable, the state, province, country
and city set out in Schedule 6.1(f).
(g) BioMarin Worldwide Transaction Shares. The BioMarin
Worldwide Transaction Shares are duly authorized and, in the
case of the BioMarin Worldwide Transaction Shares, when issued
and paid for in accordance with the terms of this Agreement
will be duly authorized, validly issued and outstanding, fully
paid and non-assessable and free and clear of all
Encumbrances, other than Encumbrances which might have been
created or suffered by the Vendors and restrictions imposed by
the Securities Act, other securities laws or this Agreement.
(h) Regulatory Approvals. Based in part on the representations and
warranties made by the members of the IBEX Group in section 5.2,
no authorization from any Governmental Authority is required on
the part of BioMarin in connection with the issuance of the
BioMarin Worldwide Transaction Shares, save and except for the
Quebec Securities Commission Approval referred to in section
12(j) hereof.
(i) Registrant Status. No securities commission or similar
regulatory authority has issued any order preventing or
suspending trading in any securities of BioMarin or
prohibiting the issue and sale of the BioMarin Worldwide
-32-
Transaction Shares and to the Best Knowledge of the members of
the BioMarin Group, no such proceedings for such purposes are
pending or threatened.
(j) Litigation. There are no Claims at Law or in equity or
before or by any Governmental Authority either threatened,
pending, outstanding or contemplated against any member of the
BioMarin Group or relating to or which may have a Material
Adverse Effect on any member of the BioMarin Group nor to the
Best Knowledge of any member of the BioMarin Group, is there
any basis upon which any such Claims might at any time in the
future be founded.
(k) Financial Statements. A true copy of the consolidated
balance sheets of BioMarin and the consolidated statements of
operations and consolidated statements of changes in
stockholder equity and the consolidated statements of cash
flows (the "BioMarin Financial Statements") as of December 31,
2000 (the "BioMarin Year End") is annexed hereto as Schedule
6.1(k). The BioMarin Financial Statements:
(i) Have been prepared in accordance with United
States generally accepted accounting principles
applied on a basis consistent with those of the
preceding fiscal period.
(ii) Present fairly, among other things, the assets,
liabilities and financial position of BioMarin as at
the BioMarin Year End and the results of operations
for the period then ended.
(iii) Are substantially in accordance with the books
and records of BioMarin (on a consolidated basis).
(l) Compliance with Laws. Each member of the BioMarin Group
has been carrying on business in all material respects in
accordance with all applicable Laws and Governmental Orders
and no member of the BioMarin Group is in violation of any
such Law or Governmental Order, except where such violation
would not have a Material Adverse Effect on the members of the
BioMarin Group.
(m) No Brokers. There is no broker, finder or other intermediary
acting on behalf of any member of the BioMarin Group, other
than Leerink, Swann & Associates, who has or will have a
claim against the members of the IBEX Group for a brokerage
commission, finders' fee or other like payment for the
Worldwide Transaction and as and by way of a post-closing
covenant the members of the BioMarin Group will jointly and
severally indemnify and save harmless the members of the
IBEX Group of and from such Claim.
-33-
(n) Reporting Status; No Termination of Registration. Except
as set forth on Schedule 6.1(n) hereto, BioMarin has filed in
a timely manner all documents that BioMarin was required to
file under the Exchange Act during the 24 months preceding
the date of this Agreement and such documents complied in
all material respects with the Commission's requirements as
of their respective filing dates, and the information
contained therein as of the date thereof did not contain any
untrue statement of a material fact or omit to state 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. BioMarin has not
received notice of the issuance by the Commission of any
stop order suspending the qualification of any shares of
BioMarin common stock for offering or sale in any
jurisdiction or the initiation of any proceeding for such
purpose.
7. Registration of BioMarin Worldwide Transaction Shares
7.1 Required Registration.
(a) Within five days following the Closing Date, BioMarin shall
prepare and file a registration statement on Form S-3 under the
Securities Act, covering the BioMarin Worldwide Transaction
Shares and shall use its best efforts to cause such registration
statement to become effective as expeditiously as possible and to
remain effective until the earliest to occur of: (i) the date the
BioMarin Worldwide Transaction Shares covered thereby have been
sold; (ii) the date by which all BioMarin Worldwide Transaction
Shares covered thereby may be sold under Rule 144 without
restriction as to volume; or (iii) the date which is the
twenty-fourth month anniversary of the Closing Date.
(b) Following the effectiveness of a registration statement filed
pursuant to this section, BioMarin may at any time suspend the
effectiveness of such registration for up to 60 days, as
appropriate (a "Suspension Period"), by giving notice to the
Vendors, if BioMarin shall have determined that BioMarin may be
required to disclose any material corporate development which
disclosure may have a Material Adverse Effect on BioMarin.
Notwithstanding the foregoing, no more than two Suspension
Periods may occur during any 12 month period. BioMarin shall use
its best efforts to limit the duration and number of any
Suspension Periods. The Vendors agree that upon receipt of any
notice from BioMarin of a Suspension Period, the Vendors shall
forthwith discontinue disposition of BioMarin Worldwide
Transaction Shares covered by such registration statement or
prospectus until the Vendors: (i) are advised in writing by
BioMarin that the use of the applicable prospectus may be
resumed; (ii) have received copies of a supplemental or amended
prospectus, if applicable; and (iii) have received copies of any
additional or supplemental filings which are incorporated or
deemed to be incorporated by reference into such prospectus.
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7.2 Registration Procedures. At such time as BioMarin effects the
registration of the BioMarin Worldwide Transaction Shares under the
Securities Act pursuant to section 7.1(a) BioMarin will, at its expense
and as expeditiously as possible;
(a) In accordance with the Securities Act and the rules and
regulations of the Commission, prepare and file in
accordance with section 7.1(a) a registration statement with
respect to the BioMarin Worldwide Transaction Shares and
will use its best efforts to cause such registration
statement to become and remain effective for the period
described herein and BioMarin will prepare and file with the
Commission such amendments to such registration statement
and supplements to the prospectus contained therein as may
be necessary to keep such registration statement effective
for such period and such registration statement and
prospectus accurate and complete for such period.
(b) Furnish to the Vendors participating in such registration such
reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus and such other
documents as such Vendors may reasonably request in order to
facilitate the public offering of the BioMarin Worldwide
Transaction Shares.
(c) Use its best efforts to register or qualify the BioMarin
Worldwide Transaction Shares covered by such registration
statement under such state securities or blue sky laws of
such jurisdictions as such participating Vendors may
reasonably request within 20 days following the original
filing of such registration statement, except that BioMarin
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.
(d) Notify the Vendors participating in such registration,
promptly after BioMarin shall receive notice thereof, of the
date and time when such registration statement and each
post-effective amendment thereto has become effective or a
supplement to any prospectus forming a part of such
registration statement has been filed.
(e) Notify such Vendors promptly of any request by the
Commission for the amending or supplementing of such
registration statement or prospectus or for additional
information.
(f) Prepare and file with the Commission, promptly upon the
request of any such Vendors, any amendments or supplements to
such registration statement or prospectus which, in the
opinion of counsel for such Vendors, is required under the
Securities Act or the rules and regulations thereunder in
connection with the distribution of the BioMarin Worldwide
Transaction Shares by such Vendors.
(g) Prepare and promptly file with the Commission and
promptly notify such Vendors of the filing of, such amendments
or supplements 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
-35-
required to be delivered under the Securities Act any event
has occurred as the result of which any such prospectus or any
other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(h) Advise such Vendors, promptly after BioMarin shall
receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission 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.
7.3 Covenant Regarding Disposition of BioMarin Shares. Following the
effectiveness of a registration statement filed pursuant to section 7.1, and
without limitation of the provisions of section 7.1(b), the Vendors jointly and
severally covenant and agree that any disposition of the BioMarin Worldwide
Transaction Shares shall be made in a manner that does not unduly prejudice the
trading price of BioMarin's common stock on the Nasdaq National Market or the
SWX Swiss Market.
7.4 Indemnification.
(a) BioMarin will indemnify and hold harmless each Vendor which is an
owner of shares of BioMarin Worldwide Transaction Shares included
in a registration statement pursuant to the provisions of Article
7 hereof, and any officer, director, employee, agent, partner,
member or affiliate of such Vendor (for purposes of this section
7.4(a), the "Indemnified Parties"), from and against, and will
reimburse such Vendor and each such Indemnified Party with
respect to, any and all claims, actions, demands, losses,
damages, liabilities, costs and expenses to which such Vendor or
any such Indemnified Party may become subject under the
Securities Act or otherwise, insofar as such claims, actions,
demands, losses, damages, liabilities, costs or expenses arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in such registration
statement, any prospectus contained therein or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
-36-
therein not misleading; provided, however, that BioMarin will not
be liable in any such case to the extent that any such claim,
action, demand, loss, damage, liability, cost or expense is
caused by an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with
information furnished by such Vendor or such Indemnified Party in
writing specifically for use in the preparation thereof.
(b) Each Vendor which is an owner of shares of BioMarin Worldwide
Transaction Shares included in a registration statement pursuant
to the provisions of Article 7 hereof will indemnify and hold
harmless BioMarin, and any Person who controls BioMarin within
the meaning of the Securities Act, from and against, and will
reimburse BioMarin and such controlling Persons with respect to,
any and all losses, damages, liabilities, costs or expenses to
which BioMarin or such controlling Person may become subject
under the Securities Act or otherwise, insofar as such losses,
damages, liabilities, costs or expenses are caused by any untrue
or alleged untrue statement of any material fact contained in
such registration statement, any prospectus contained therein or
any amendment or supplement thereto, or are caused by the
omission or the 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was so made solely in reliance upon
and in conformity with written information furnished by such
Vendor specifically for use in the preparation thereof; provided,
however, that the liability of any Vendor pursuant to this
subsection (b) shall be limited to an amount not to exceed the
net proceeds received by such Vendor pursuant to the registration
statement which gives rise to such obligation to indemnify.
(c) Promptly after receipt by a party indemnified pursuant to the
provisions of paragraph (a) or (b) of this section 7.4 of notice
of the commencement of any action involving the subject matter of
the foregoing indemnity provisions, such indemnified party will,
if a claim thereof is to be made against the indemnifying party
pursuant to the provisions of paragraph (a) or (b), notify the
indemnifying party of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any
liability which it may have to an indemnified party otherwise
than under this section 7.4 and shall not relieve the
indemnifying party from liability under this section 7.4 unless
such indemnifying party is prejudiced by such omission. In case
such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party shall have the right to participate in, and,
to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense
-37-
thereof, the indemnifying party will not be liable to such
indemnified party pursuant to the provisions of such paragraph
(a) or (b) for any legal or other expense subsequently incurred
by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying
party shall be liable to an indemnified party for any settlement
of any action or claim without the consent of the indemnifying
party. No indemnifying party will 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 to such claim or litigation.
(d) If the indemnification provided for in subsection (a) or (b) of
this section 7.4 is held by a court of competent jurisdiction to
be unavailable to a party to be indemnified with respect to any
claims, actions, demands, losses, damages, liabilities, costs or
expenses referred to therein, then each indemnifying party under
any such subsection, in lieu of indemnifying such indemnified
party thereunder, hereby agrees to contribute to the amount paid
or payable by such indemnified party as a result of such claims,
actions, demands, losses, damages, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements
or omissions which resulted in such claims, actions, demands,
losses, damages, liabilities, costs or expenses, as well as any
other relevant equitable considerations. The relative fault of
the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The amount any Vendor shall be obligated
to contribute pursuant to this subsection (d) shall be limited to
an amount not to exceed the net proceeds received by such Vendor
pursuant to the registration statement which gives rise to such
obligation to contribute. No person guilty of fraudulent
misrepresentation (within the meaning of section 11(f) of the
Securities Act) shall be entitled to contribution hereunder from
any person who was not guilty of such fraudulent
misrepresentation.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
8.1 Survival. No investigations made by or on behalf of any Party at any
time shall have the effect of waiving, diminishing the scope of or otherwise
affecting any representation or warranty made by any Party. No waiver by any
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Party of any condition, in whole or in part, shall operate as a waiver of any
other condition. The representations and warranties contained in Article 5 and 6
respectively or in any certificate or other document delivered in connection
with the Closing shall survive the making of this Agreement and the Closing as
to the representations and warranties contained in section 5.1(g), 5.1(l),
5.1(y) and 5.1(bb), for a period of six years and as to all other
representations and warranties, for a period of three years following the
Closing unless a bona fide notice of a Claim shall have been given in writing
prior to the expiry of that period, in which case the representations and
warranties to which such notice applies shall survive in respect of that Claim
until the final determination or the applicable settlement, in each case, of
that Claim.
9. COVENANTS
9.1 Interim Covenants. From the date hereof and up to and including the
Closing Date or other termination of this Agreement, except as otherwise
consented to in writing by the members of the BioMarin Group, the members of the
IBEX Group shall jointly and severally observe and perform the provisions stated
below:
(a) Operations. The Vendors shall carry on the IBEX Group
Worldwide Business in the usual and ordinary course in
substantially the same manner as heretofore conducted and
shall preserve their relationships with customers, suppliers
and third Persons having business dealings with the Vendors
and shall take any and all such further actions reasonably
requested by the members of the BioMarin Group to the end that
the IBEX Group Worldwide Business shall not be impaired in any
material respect on the Closing Date.
(b) Insurance. The Vendors shall keep in full force their
current insurance policies relating to the Worldwide Assets
and the IBEX Group Worldwide Business without permitting any
termination, cancellation or lapse thereof and the Vendors
shall enter into replacement policies providing coverage equal
to or greater than the coverage under those cancelled,
terminated or lapsed policies for substantially similar
premiums.
(c) Contracts. The Vendors shall perform in all material
respects their respective obligations under Contracts relating
to or affecting the Worldwide Assets and/or the IBEX Group
Worldwide Business.
(d) Books and Records. The Vendors shall maintain the books
of account and records relating to the Worldwide Assets and/or
the IBEX Group Worldwide Business in the usual and ordinary
course of business.
(e) Compliance With Laws. The Vendors shall comply in all material
respects with all Laws applicable to the Worldwide Assets and/or
the IBEX Group Worldwide Business.
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(f) Additional Contracts. No member of the IBEX Group or their
Affiliates shall enter into or assume any Contract relating to
the IBEX Group Worldwide Business except for; (i) purchases of
supplies or inventories in the usual and ordinary course of the
IBEX Group Worldwide Business consistent with prior practice; and
(ii) Contracts which, individually or in the aggregate, are not
material to the IBEX Group Worldwide Business. For purposes of
the proceeding sentence, any Contract in excess of Cdn.$50,000
shall be considered material to the IBEX Group Worldwide
Business. No member of the IBEX Group or their Affiliates shall
otherwise make any material change in the conduct of the IBEX
Group Worldwide Business.
(g) Disposition of Worldwide Assets. The Vendors shall not
sell, lease or transfer or agree to sell, lease or transfer or
cause any Encumbrance upon, any of the Worldwide Assets, out
of the ordinary course of business or approve or undertake any
other transaction out of the ordinary course of business or
furnish or cause to be furnished any information concerning
the Worldwide Assets and/or the IBEX Group Worldwide Business
to any third Person who is interested in any such transaction.
(h) Representations and Warranties. The members of the IBEX
Group shall not do anything that would cause any of the
representations and warranties under Article 5 to be false,
incomplete or misleading in such a fashion as to have a
Material Adverse Effect on the members of the IBEX Group.
(i) Advice. The members of the IBEX Group shall promptly
advise the members of the BioMarin Group in writing of any
change that would have a Material Adverse Effect on the
condition, financial or otherwise of the Worldwide Assets
and/or the IBEX Group Worldwide Business.
(j) Accounting. With respect to the IBEX Group Worldwide
Business and the Worldwide Assets, no member of the IBEX Group
shall make any change in the accounting principles, methods,
records or practices followed by it or depreciation or
amortization policies or rates theretofore adopted by it. Each
member of the IBEX Group shall maintain its books, records and
accounts in accordance with Canadian generally accepted
accounting principles applied on a basis consistent with past
practice.
(k) Discharge. No member of the IBEX Group shall cancel,
compromise, release or discharge any Claim in connection with
the operations of the Worldwide Assets upon or against any
Person or waive any right of material value except, in any
case, in the ordinary course of the IBEX Group Worldwide
Business and consistent with past practice.
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(l) McGill License. The members of the IBEX Group shall,
upon the request of BioMarin, introduce representatives of
BioMarin to appropriate representatives of McGill University
with a view to obtaining a license from McGill University to
use US Patent 5,147,641 and its foreign counterparts on
substantially the same terms and conditions as the license
dated August 30, 1994 between McGill University and IBEX. The
members of the IBEX Group shall not enter into any license in
respect of such patent or otherwise interfere with the
negotiation of such license by BioMarin.
9.2 Interim Access. From and after the execution and delivery of this
Agreement and until Closing or other termination of this Agreement, the members
of the IBEX Group shall continue to make available to the members of the
BioMarin Group and their respective directors, officers, auditors, employees,
investment bankers, counsel and other authorized representatives (the
"Representatives") all title documents, policies of insurance, Contracts and
other documents in the possession of the members of the IBEX Group or under the
control of the members of the IBEX Group relating to the Worldwide Assets and
the IBEX Group Worldwide Business. The members of the IBEX Group shall also
continue to forthwith make available to the members of the BioMarin Group and
their respective Representatives for examination, all books of account,
accounting records, documents, information and data relating to the Worldwide
Assets and the IBEX Group Worldwide Business and shall also continue to make
available to the members of the BioMarin Group and their respective
Representatives full and complete access to the key personnel, customers,
suppliers, independent accountants and counsel of members of the IBEX Group, as
requested by the members of the BioMarin Group or their respective
Representatives. The members of the IBEX Group shall afford the members of the
BioMarin Group and their respective Representatives every reasonable opportunity
to have access to and inspect the Worldwide Assets.
10. INDEMNITY
10.1 Indemnity by the Members of the BioMarin Group. The members of the
BioMarin Group shall jointly and severally indemnify and save harmless the
members of the IBEX Group from all Losses actually incurred by the members of
the IBEX Group as a result of: (i) any breach by the members of the BioMarin
Group or any inaccuracy of any covenant, representation or warranty of the
members of the BioMarin Group contained in this Agreement; and (ii) any actual
action, suit, investigation, inquiry or proceeding (each, an "Action") arising
out of or resulting from the conduct of the IBEX Group Worldwide Business or any
of the Worldwide Assets by members of the BioMarin Group after the Closing Date.
10.2 Indemnity by the Members of the IBEX Group. The members of the IBEX
Group shall jointly and severally indemnify and save harmless the members of the
BioMarin Group from all Losses actually incurred by the members of the BioMarin
Group as a result of: (i) any breach by any member of the IBEX Group or any
inaccuracy of any covenant, representation or warranty of any member of the IBEX
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Group contained in this Agreement; (ii) any Action arising from rights of
creditors pursuant to the Bulk Sales Carve-Out or any Action arising from rights
of creditors pursuant to any non-compliance by BioMarin US with section 1767 ss
of the Civil Code of Quebec in connection with the Worldwide Transaction or the
Vendor's or BioMarin US's failure to comply with applicable bulk sales or sale
of an enterprise legislation; (iii) any Excluded Liability; (iv) any Action
arising out of or resulting from the conduct of the IBEX Group Worldwide
Business or any of the Worldwide Assets by the members of the BioMarin Group
prior to the Closing Date; and (v) any Action arising from the failure of the
members of the IBEX Group to comply with any covenants contained in this
Agreement.
10.3 Indemnification Procedure. An indemnified party pursuant to the
provisions hereof (the "Indemnified Party") shall give the other Party (the
"Indemnitor") notice of any matter which an Indemnified Party has determined has
given or could give rise to a right of indemnification under this Agreement,
within 60 days of such determination, stating the amount of the Loss if known
and the method of computation thereof and containing a reference to the
provisions of this Agreement in respect of which such right of indemnification
is claimed. If an Indemnified Party shall receive notice of any third party
claim (a "Third Party Claim"), the Indemnified Party shall give the Indemnitor
notice of the Third Party Claim within 30 days of the receipt by the Indemnified
Party of such notice. The failure to provide such notice shall not release the
Indemnitor from its obligations under this Article except to the extent that the
Indemnitor is materially prejudiced by such failure and shall not relieve the
Indemnitor from any other obligation or liability that it may have to the
Indemnified Party other than under this Article. If the Indemnitor acknowledges
in writing its obligation to indemnify the Indemnified Party hereunder against
any Losses that may result from such Third Party Claim within 20 days of receipt
of notice of such Claim, the Indemnitor shall be entitled to assume and control
the defense of such Third Party Claim at its expense and through counsel of its
choice if it gives notice of its intention to do so to the Indemnified Party
within five days of the receipt of such notice from the Indemnified Party. If
there exists or is reasonably likely to exist a conflict of interest that would
make it inappropriate in the judgment of the Indemnified Party, in its sole and
absolute discretion, for the same counsel to represent both the Indemnified
Party and the Indemnitor or if the Indemnitor does not so assume and defend such
Third Party Claim, the Indemnified Party shall be entitled to retain its own
counsel, in each jurisdiction for which the Indemnified Party determines counsel
is required, at the expense of the Indemnitor. If the Indemnitor exercises the
right to undertake any such defense against any Third Party Claim, the
Indemnified Party shall cooperate with the Indemnitor in such defense and shall
make available to the Indemnitor, at the Indemnitor's expense, all witnesses,
pertinent records, materials and information in the Indemnified Party's
possession or under the Indemnified Party's control relating thereto as is
reasonably required by the Indemnitor. If the Indemnified Party is directly or
indirectly conducting the defense against any such Third Party Claim, the
Indemnitor shall cooperate with the Indemnified Party in such defense and shall
make available to the Indemnified Party, at the Indemnitor's expense, all such
witnesses, records, materials and information in the Indemnitor's possession or
under the Indemnitors' control relating thereto as is reasonably required by the
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Indemnified Party. No such Third Party Claim may be settled by the Indemnitor
without the prior written consent of the Indemnified Party, acting reasonably.
For the purposes of this Article 10, the members of the BioMarin Group shall be
treated as one Party and the members of the IBEX Group shall be treated as one
Party.
10.4 Supplemental Rights. The rights and benefits provided in this Article
10 are supplemental to and are without prejudice to any other rights, actions or
causes of action which may arise pursuant to any other section of this Agreement
or pursuant to applicable law.
10.5 Reduction of Worldwide Purchase Price. All amounts received by the
members of the BioMarin Group pursuant to the provisions of this Article shall
be received in reduction of the Worldwide Purchase Price.
10.6 Minimum and Maximum Indemnification Claim. Notwithstanding the
provisions of section 10.1(i) and (ii) or 10.2(i) and (iv), as the case may be,
the obligation of the members of the BioMarin Group or the members of the IBEX
Group, as the case may be, to indemnify the other Parties in respect of any of
the matters described therein, as the case may be, shall become applicable only
when the Losses actually incurred by the Person entitled to indemnification
exceed in the aggregate Cdn.$100,000 under this Agreement and/or the Canadian
Purchase Agreement (the "Minimum Threshold"). Once the Minimum Threshold has
been exceeded, the obligations of indemnification with respect to such matters
shall apply to: (i) 50% of any and all Losses from dollar one above Cdn. $50,000
to Cdn. $100,000; and (ii) any and all Losses from dollar one above Cdn.$100,000
of such Losses. The right of indemnification with respect to such matters shall
only apply to Losses (exclusive of Losses relating to breaches of
representations and warranties set forth in sections 5.1(l) and 5.1(bb), and any
other matters relating to the Excluded Liabilities and rights of creditors
pursuant to the Bulk Sales Carve-Out and rights of creditors pursuant to matters
described in section 10.2(ii), for which there shall be no limitation) under
this Agreement and the Canadian Purchase Agreement which aggregate up to and
including the sum of (a) the Canadian Purchase Price (as defined in the Canadian
Purchase Agreement), (b) the Worldwide Purchase Price and (c) the Contingency
Payments.
10.7 Rights of Set-Off. Subject to section 10.6, in the event the members
of the BioMarin Group have incurred Losses and the members of the IBEX Group
must indemnify the members of the BioMarin Group pursuant to the provisions
hereof, BioMarin shall have the right to set off such Losses including, without
limitation, any Losses of the BioMarin Group under the Canadian Purchase
Agreement, as against the Contingency Payments.
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11. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE MEMBERS OF THE IBEX
GROUP AT CLOSING
11.1 Conditions Precedent. All obligations of the Vendors to sell the
Worldwide Assets to BioMarin US at Closing under this Agreement are subject to
the fulfillment (or waiver in writing by the members of the IBEX Group) prior to
or at the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties made by each member of the BioMarin Group in or
under this Agreement shall be true in all material respects
(except where already qualified as to materiality) on and as
of the Closing Date and the Vendors shall have received from
each member of the BioMarin Group a certificate signed as of
the Closing Date to such effect in the form set out in
Schedule 11.1(a).
(b) Compliance with Covenants. Each member of the BioMarin
Group shall have complied with all covenants and agreements
herein agreed to be performed or caused to be performed by
each member of the BioMarin Group prior to Closing and the
members of the IBEX Group shall have received from each member
of the BioMarin Group a certificate signed as of the Closing
Date to such effect in the form set out in Schedule 11.1(b).
(c) Corporate Authorizations. The members of the BioMarin
Group shall have delivered to the members of the IBEX Group
evidence satisfactory to the members of the IBEX Group that
all necessary corporate authorizations by the members of the
BioMarin Group authorizing and approving the execution and
delivery of this Agreement and the consummation of the
Worldwide Transaction have been obtained.
(d) Assumption of Assumed Worldwide Liabilities. On
Closing, the members of the BioMarin Group and the Vendors
shall execute and deliver an assignment and assumption
agreement with respect to the Assumed Worldwide Liabilities in
the form set out in Schedule 11.1(d).
(e) Opinion. On Closing, the members of the IBEX Group
shall receive from United States counsel to the members of the
BioMarin Group legal opinions in the form set out in Schedule
11.1(e).
(f) BioMarin Worldwide Transaction Shares. On Closing, BioMarin
shall deliver certificates representing the BioMarin Worldwide
Transaction Shares to the Vendors as provided in section
3.2 hereof.
(g) License Agreement. On Closing, (i) the members of the
BioMarin Group shall execute and deliver with the members of
the IBEX Group a license agreement in the form set forth in
Schedule 11.1(g) and (ii) Massachusetts Institute of
Technology shall have consented to the license of Intellectual
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Property covered by the Contracts with the Massachusetts of
Technology set forth in Schedule 2.3(b) to the members of IBEX
Group contemplated in the license agreement set forth in
Schedule 11.1(g).
(h) Insurance. On Closing, BioMarin NS shall have insured
the Worldwide Assets, with effect as and from the Closing
Date, in such amounts and against such risks, including
general liability and tenant's liability, as are customarily
carried and insured against by BioMarin in respect of
comparable assets in the conduct of its business.
In case any of the foregoing conditions cannot be fulfilled at or before the
Time of Closing to the satisfaction of the members of the IBEX Group, the
members of the IBEX Group may rescind this Agreement by notice to the members of
the BioMarin Group and in such event all of the Parties shall be released from
all obligations hereunder, unless the members of the IBEX Group can show that
the condition or conditions which have not been satisfied are reasonably capable
of being performed or caused to be performed by the members of the BioMarin
Group and are the obligation of the members of the BioMarin Group to perform or
to cause to be performed or have not been satisfied by reason of a default by
the members of the BioMarin Group, in which case, the members of the BioMarin
Group, at the option of the members of the IBEX Group, shall not be released
from any obligations hereunder. Any such conditions may be waived in whole or in
part by the members of the IBEX Group without prejudice to the members of the
IBEX Group's rights of rescission in the event of the non-fulfillment of any
other condition or conditions, any such waiver to be binding on the members of
the IBEX Group only if the same is in writing.
12. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE MEMBERS OF THE BIOMARIN
GROUP AT CLOSING
12.1 Conditions Precedent. All obligations of BioMarin US to purchase the
Worldwide Assets from the Vendors at Closing under this Agreement are subject to
the fulfillment (or waiver in writing by the members of the BioMarin Group)
prior to or at the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties made by each member of the IBEX Group in or under
this Agreement shall be true in all material respects (except
where already qualified as to materiality) on and as of the
Closing Date and the members of the BioMarin Group shall have
received from each member of the IBEX Group a certificate
signed as of the Closing Date to such effect, in the form set
out in Schedule 12.1(a).
(b) Actions, Etc. All actions, proceedings, instruments and
documents required for the members of the IBEX Group to carry
out the Worldwide Transaction and all other related legal
matters shall have been approved by the members of the
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BioMarin Group and the members of the BioMarin Group shall
have been furnished with such certified copies of actions and
proceedings with respect to the members of the IBEX Group and
other such instruments and documents as the members of the
BioMarin Group shall have requested.
(c) Compliance with Covenants. Each member of the IBEX
Group shall have complied with all covenants and agreements
herein agreed to be performed or caused to be performed by
each member of the IBEX Group and the members of the BioMarin
Group shall have received from each member of the IBEX Group a
certificate signed as of the Closing Date to such effect, in
the form set out in Schedule 12.1(c).
(d) Corporate Authorizations. The members of the IBEX Group
shall have delivered to the members of the BioMarin Group
evidence satisfactory to the members of the BioMarin Group
that all necessary corporate authorizations by the members of
the IBEX Group authorizing and approving the execution and
delivery of this Agreement, the consummation of the Worldwide
Transaction and the transfer of the Worldwide Assets as herein
contemplated have been obtained.
(e) Assumption of Assumed Worldwide Liabilities. On
Closing, the members of the BioMarin Group and the Vendors
shall execute and deliver an assignment and assumption
agreement with respect to the Assumed Worldwide Liabilities,
in the form set out in Schedule 11.1(d).
(f) Approvals and Consents. At or before Closing there
shall have been obtained from all appropriate federal, state,
municipal or other governmental or administrative bodies all
such approvals and consents, if any, in form and on terms
satisfactory to the members of the BioMarin Group as may be
required in order to transfer the Worldwide Assets and to
enable BioMarin US to assume the Assumed Worldwide Liabilities
at Closing as herein provided.
(g) No Material Loss. There shall have been no material loss or
damage to the Worldwide Assets not adequately covered by
insurance.
(h) No Material Adverse Change. There shall have been no
change that would have a Material Adverse Effect on the
condition, financial or otherwise of the Worldwide Assets
and/or the IBEX Group Worldwide Business.
(i) Litigation. No court order shall have been entered that
enjoins, restrains, prohibits or restricts Closing of the
Worldwide Transaction. None of the Parties nor any of their
respective directors, officers, employees or agents shall be a
defendant or third party to or have received written or oral
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notice of the threat of any litigation or proceedings before
any court or Governmental Authority which, in the opinion of
the members of the BioMarin Group, could prevent or restrict
such Party from performing any of its obligations in this
Agreement or any of the Closing Documents or could expose such
Person to damages.
(j) Quebec Securities Commission. On or before Closing, BioMarin
shall have received the approval of the Quebec Securities
Commission to the issuance of the BioMarin Worldwide Transaction
Shares (the "Quebec Securities Commission Approval").
(k) Receipt of Closing Documents by the Members of the BioMarin
Group. All instruments of conveyance and other documentation
relating to the sale and purchase of the Worldwide Assets,
including without limitation, the Closing Documents, assignments,
bills of sale, conveyances and other documentation and all
actions and proceedings taken on or prior to the Closing in
connection the performance by the members of the IBEX Group of
their obligations under this Agreement shall be satisfactory to
the members of the BioMarin Group and their counsel and the
members of the BioMarin Group shall have received duly executed
copies of the Closing Documents and all such documentation or
other evidence as they may reasonably request in order to
establish the consummation of the Worldwide Transaction and the
taking of all corporate proceedings in connection therewith in
form (as to certification and otherwise) and substance
satisfactory to the members of the BioMarin Group and their
counsel. For greater certainty and without limitation, the
Vendors shall have delivered to BioMarin US duly executed, in
form and substance reasonably satisfactory to the members of the
BioMarin Group and their counsel and in proper form for
registration, if required, under applicable Laws, all instruments
of conveyance and other documentation relating to the sale and
purchase of the Worldwide Assets, including without limitation:
(i) bills of sale and assignment of interest for the
Worldwide Assets (including all Permits, Licenses and
Contracts), in the form set out in Schedule
12.1(k)(i); and
(ii) assignments in registrable form of all Intellectual
Property, in the forms set out in Schedule
12.1(k)(ii).
(l) Consents to Assignments. With respect to any IBEX Group
Worldwide Intellectual Property, Permits and Licenses and
the Contracts (the "Worldwide Assigned Rights") forming a
part of the Worldwide Assets in connection with the IBEX
Group Worldwide Business and which BioMarin US shall assume
at Closing in accordance with this Agreement identified at
Schedule 5.1(s), on Closing, the members of the IBEX Group
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shall deliver to BioMarin US, such unconditional written
consents to the assignment thereof (the "Worldwide Assigned
Rights Consents") as are applicable, to assign the Worldwide
Assigned Rights to BioMarin US together with written
acknowledgements from the other party to such Worldwide
Assigned Rights, in the form set out in Schedule 12.1(l)
acknowledging that all amounts due and payable by the
Vendors have been paid in full to the Closing Date.
(m) Possession of Worldwide Assets. On Closing, the Vendors shall
deliver title to and possession of all of the Worldwide Assets to
BioMarin US.
(n) Non-Competition Agreement. On Closing, the members of the IBEX
Group shall execute and deliver non-competition agreements in the
form set out in Schedule 12.1(n).
(o) Termination. On Closing, the members of the IBEX Group
shall execute and deliver with the members of the BioMarin
Group an agreement in the form set out in Schedule 12.1(o)
terminating all written or oral agreements among the members
of the IBEX Group with respect to the Worldwide Assets and the
IBEX Group Worldwide Business, including for greater certainty
and without limitation, marketing agreements with respect to
the IBEX Group Worldwide Intellectual Property, on terms and
conditions satisfactory to the members of the BioMarin Group
and their counsel.
(p) Services, Equipment and Space Sharing Agreement. On Closing,
the members of the BioMarin Group shall execute and deliver with
the members of the IBEX Group an agreement in form set out in
Schedule 12.1(p).
(q) License Agreement. On Closing, (i) the members of the
BioMarin Group shall execute and deliver with the members of
the IBEX Group a license agreement in the form set forth in
Schedule 11.1(g) and (ii) Massachusetts Institute of
Technology shall have consented to the license of Intellectual
Property covered by the Contracts with the Massachusetts of
Technology set forth in Schedule 2.3(b) to the members of IBEX
Group contemplated in the license agreement set forth in
Schedule 11.1(g).
(r) Canadian Purchase Agreement. On Closing, the transaction set
forth under the Canadian Purchase Agreement shall have been
contemporaneously successfully consummated.
(s) Opinions. On Closing, the members of the BioMarin Group shall
receive from U.S. and Quebec counsel to the members of the IBEX
Group a legal opinion in the form set out in Schedule 12.1(s).
(t) No Orders. No order of any court or administrative
agency shall be in effect which restrains or prohibits the
Worldwide Transaction and no suit, action, inquiry,
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investigation or proceeding in which it will be or it is
sought to restrain, prohibit or change the terms of or obtain
damages or other relief in connection with the Worldwide
Transaction and which in the judgment of the members of the
BioMarin Group and their counsel, acting reasonably, makes it
inadvisable to proceed with the consummation of the Worldwide
Transaction shall have been made, instituted or threatened by
any Person.
In case any of the foregoing conditions cannot be fulfilled at or before the
Time of Closing to the satisfaction of the members of the BioMarin Group, the
members of the BioMarin Group may rescind this Agreement by notice to the
members of the IBEX Group and in such event all of the Parties shall be released
from all obligations hereunder, unless the members of the BioMarin Group can
show that the condition or conditions which have not been satisfied are
reasonably capable of being performed or caused to be performed by the members
of the IBEX Group and are the obligation of the members of the IBEX Group to
perform or to cause to be performed or have not been satisfied by reason of a
default by the members of the IBEX Group, in which case, the members of the IBEX
Group, at the option of the members of the BioMarin Group, shall not be released
from any obligations hereunder. Any such conditions may be waived in whole or in
part by the members of the BioMarin Group without prejudice to the members of
the BioMarin Groups' rights of rescission in the event of the non-fulfillment of
any other condition or conditions, any such waiver to be binding on the members
of the BioMarin Group only if the same is in writing.
13. THIRD PARTY ASSIGNMENT AND CONSENTS
13.1 Third Party Assignments. Neither this Agreement nor any Closing
Document shall constitute an assignment or an attempted assignment of any
Worldwide Assigned Right contemplated to be assigned to BioMarin US hereunder
where such Worldwide Assigned Right; (i) is not assignable without the consent
of a third Person if such consent has not been obtained and such assignment or
attempted assignment would constitute a breach thereof; or (ii) in respect of
which Worldwide Assigned Right the remedies for enforcement thereof available to
the Vendors would not pass to BioMarin US. In respect of the foregoing, the
members of the IBEX Group, as and by way of a post-closing covenant, jointly and
severally agree to take such action or cause to be taken such action in their
own name or otherwise as the members of the BioMarin Group shall reasonably
require so as to provide BioMarin US the benefits thereof and to effect
collection of money to become due and payable by the other party thereto and the
members of the IBEX Group shall promptly pay over to BioMarin US all money
received by the Vendors in respect of the foregoing. If and when any Worldwide
Assigned Right Consent is obtained or such Worldwide Assigned Right otherwise
becomes assignable, the Vendors shall promptly assign all of their rights and
obligations thereunder to BioMarin US and BioMarin US shall, without the payment
of any further consideration therefor, assume such rights and obligations and
the Vendors shall be relieved of any and all liability therefor.
-49-
13.2 Further Assurances; Consents. From and after the date hereof and
before and after Closing: (i) each of the Parties shall use their reasonable
best efforts to satisfy or cause to be satisfied all the conditions precedent
that are set forth herein, including, without limitation, the procurement of the
post-Closing Worldwide Assigned Rights Consents as set forth in Schedule 13.2;
(ii) each of the Parties shall use their reasonable best efforts to cause the
Worldwide Transaction to be consummated; (iii) the Parties shall cooperate with
each other to provide such information, to execute and deliver such other
documents, instruments of transfer or assignment, files, books and records and
to do all such further acts and things as may be reasonably required to carry
out the Worldwide Transaction; (iv) the Parties shall use all reasonable efforts
to comply promptly with all legal requirements that may be imposed upon them
with respect to the consummation of the Worldwide Transaction and to obtain any
consent or any exemption by and to make any registration, declaration or filing
with any Governmental Authority or other third Person required to be obtained or
made by such Person in connection with the taking of any action contemplated
hereby, including, without limitation, the post-Closing Worldwide Assigned
Rights Consents. The Parties covenant and agree to proceed diligently and in a
coordinated fashion to apply for and obtain any and all necessary approvals
and/or Worldwide Assigned Rights Consents. For greater certainty and without
limitation, at the request of any member of the BioMarin Group, prior to and
after the Closing, the Representatives of the BioMarin Group shall have full
right to participate in discussions with all third Persons with a view to
procuring all pre-Closing and post-Closing Worldwide Assigned Rights Consents;
provided, however, that in the event that from and after Closing, any member of
the IBEX Group has not proceeded diligently and in a coordinated fashion to
apply for and obtain any and all such necessary approvals and/or Canadian
Assigned Rights Consents, the members of the BioMarin Group, without any further
or other act or formality shall be irrevocably appointed to act as attorney and
mandatory for and on behalf of any or all of the members of the IBEX Group in
their place and stead, with full power of substitution, such power of attorney
being coupled with an interest to survive the insolvency of any Party.
Notwithstanding the foregoing, the members of the IBEX Group shall ensure that
all necessary Representatives of the IBEX Group are entitled to be present
and/or participate, as applicable, at all reasonable times to accomplish the
objectives of this section 13.2.
14. ADDITIONAL POST-CLOSING COVENANTS
14.1 Financial Statements. The members of the IBEX Group jointly and
severally covenant and agree as and by way of a post-closing covenant to
preserve the financial statements and working papers relating to the IBEX Group
Worldwide Business for a period of at least 10 years from the Closing and to
allow the members of the BioMarin Group or the Representatives to have access
thereto at all reasonable times in connection with the affairs of the BioMarin
Group and to make copies thereof and to take extracts therefrom. The members of
the IBEX Group jointly and severally covenant and agree as and by way of a
post-closing covenant to use their reasonable best efforts to maintain and
-50-
preserve such books of account and to at least exercise the same degree of care
with respect thereto as they do now in connection with their other business
records.
14.2 Resale Payments. The members of the BioMarin Group jointly and
severally covenant and agree as and by way of a post-closing covenant to pay to
the Vendors a sum equal to 50% of any consideration received by any member of
the BioMarin Group within three months of the Closing Date, as a result of a
license or sale by only such member of the BioMarin Group of any of the IBEX
Group Worldwide Intellectual Property.
14.3 Filter Technology. The members of the IBEX Group jointly and
severally covenant and agree as and by way of a post-closing covenant that, for
no additional consideration (the consideration therefor being included in the
Worldwide Purchase Price), on or before August 31, 2002, they shall transfer to
BioMarin US, good and marketable title to the Filter Technology, free and clear
of any and all Encumbrances, subject to the rights of creditors pursuant to the
Bulk Sales Carve Out and pursuant to a general conveyance which shall contain
representations and warranties on the part of the members of the IBEX Group with
respect to the Filter Technology which are similar to the representations and
warranties with respect to the Worldwide Assets that are contained in this
Agreement.
14.4 McGill License. The members of the IBEX Group jointly and severally
agree as a post-closing covenant that members of the IBEX Group shall not enter
into any license in respect of US Patent 5,147,641 and its foreign counterparts
or otherwise interfere with the negotiation of such license by BioMarin.
14.5 Retention Agreement. The members of the IBEX Group jointly and
severally covenant and agree as and by way of a post-closing covenant that for a
period of three (3) years following Closing, the members of the IBEX Group shall
not enter into an amalgamation, consolidation, merger or transfer of the
undertaking or assets of the IBEX Group as an entirety or substantially as an
entirety (a "Capital Reorganization") with or to another person (a "Successor
Company") unless the Successor Company resulting from the Capital Reorganization
(if not one of the members of the IBEX Group) shall agree to be bound by the
provisions of this Agreement including, without limitation, Article 10 hereof.
For greater certainty, this section 14.5 shall not apply to: (i) a Capital
Reorganization involving only members of the IBEX Group; or (ii) a sale of
BioMarin Worldwide Transaction Shares by any member of the IBEX Group.
14.6 License Agreement. The members of the BioMarin Group jointly and
severally covenant and agree as a post-closing covenant to use their
commercially reasonable efforts to cause the Contracts with Massachusetts
Institute of Technology set forth on Schedule 2.3(b) or any amendments or
extensions thereof to remain in good standing and to preserve BioMarin's ability
to license Intellectual Property licensed to BioMarin under such Contracts to
the IBEX Group under the agreement set forth in Schedule 11.1(g).
-51-
15. CONFIDENTIALITY
15.1 Confidentiality. For a period of five years from Closing, each Party
shall keep confidential all information (the "Confidential Information")
obtained from the other Party or its Representatives in connection with the
other Party, this Agreement and the Worldwide Transaction and that all such
Confidential Information obtained by it from the other Party or any of its
Representatives shall be used solely for the purpose of evaluating the Worldwide
Transaction and for no other purpose. The term "Confidential Information" shall
not include any information which; (i) is or becomes generally available to the
public other than as a result of a disclosure by the receiving Party or the
Representatives; (ii) becomes known to the receiving Party or the
Representatives on a non-confidential basis from a source (other than the
disclosing Party) which is not known to the receiving Party to be bound to the
disclosing Party by a legal, contractual or fiduciary obligation; (iii) was
known to the receiving Party or the Representatives on or prior to the date
hereof; or (iv) was independently discovered or developed by the receiving Party
without reference to any of the Confidential Information. If this Agreement is
terminated without consummation of the Worldwide Transaction, each Party shall
return to the other Party all Confidential Information in its possession
regarding the other Party and all copies and extracts thereof or with the
consent of the other Party shall destroy all such Confidential Information and
copies and extracts and shall deliver to the other Party evidence of destruction
of such Confidential Information and copies and extracts as such other Party may
reasonably request. For the purpose of this Article 15, the members of the
BioMarin Group shall be one Party and the members of the IBEX Group shall be one
Party. Confidential Information includes all information transferred from the
IBEX Group to the BioMarin Group as part of the Worldwide Assets.
Notwithstanding the foregoing, it is acknowledged and agreed that (x) no
information provided by the BioMarin Group to the IBEX Group concerning BioMarin
or its business constitutes Confidential Information of the members of the
BioMarin Group and (y) from and after the Closing, no information relating to
the Worldwide Assets or the IBEX Group Worldwide Business constitutes
Confidential Information to be held in confidence by any member of the BioMarin
Group.
15.2 Public Disclosure. No Party shall issue any press release or other
public announcement, written or oral, relating to this Agreement or to
performance hereunder or the existence of any arrangement among the Parties
without the prior approval of the other Parties acting reasonably and on a
timely basis, except to the extent that such press release or announcement is
reasonably concluded by a Party to be required by applicable Law. The forms of
press release to be issued by IBEX and BioMarin upon the execution and delivery
of this Agreement are set forth in Schedule 15.2. Each member of the IBEX Group
acknowledges that BioMarin will be required to file a copy of this Agreement and
the other agreements and instruments contemplated hereby with the Commission and
to describe the Worldwide Transaction in its public filings.
16. SOLICITATION
-52-
16.1 No Solicitation. From the date hereof and up to and including the
Closing Date or other termination of this Agreement, other than in connection
with the Worldwide Transaction, the members of the IBEX Group jointly and
severally covenant and agree that neither they nor any their Affiliates shall
nor shall any of the members of the IBEX Group or any of their Affiliates permit
their respective Representatives to initiate, solicit or encourage, directly or
indirectly, any inquiries or the making or implementation of any proposal or
offer (including without limitation, any proposal or offer to shareholders) with
respect to an Acquisition Proposal or engage in negotiations concerning or
provide any confidential information or data to, have any discussions with or
endorse or recommend a proposal of or enter into any contract or understanding
with any Person relating to an Acquisition Proposal or otherwise facilitate any
effort or attempt to make or implement an Acquisition Proposal. The members of
the IBEX Group shall notify the members of the BioMarin Group immediately if any
such inquiries or proposals are received by, any such information is requested
from or any such negotiations or discussions are sought to be initiated or
continued with the members of the IBEX Group or any of their Affiliates or
Representatives; provided however that nothing contained in this section shall
prohibit the board of directors of IBEX from furnishing non-public information
to or entering into discussions or negotiations with any Person that makes an
unsolicited bona fide Acquisition Proposal, if and only to the extent that: (i)
the board of directors of IBEX, based upon the advice of outside counsel,
determines in good faith that such action is required for the board of directors
of IBEX to comply with its fiduciary duties to shareholders imposed by
applicable Law; (ii) prior to furnishing such information to or entering into
discussions or negotiations with such Person, the members of the IBEX Group keep
the members of the BioMarin Group informed of the status and all material
information with respect to any such discussions or negotiations. Nothing in
this section shall permit the members of the IBEX Group to terminate this
Agreement or permit the members of the IBEX Group to enter into any agreement
with respect to an Acquisition Proposal for so long as this Agreement remains in
effect (it being agreed that for so long as this Agreement remains in effect,
none of the members of the IBEX Group nor their Affiliates shall enter into any
agreement with any Person that provides for or in any way facilitates an
Acquisition Proposal or affect any other obligation of the members of the IBEX
Group under this Agreement).
17. WORLDWIDE ASSETS AT RISK UNTIL CLOSING
17.1 Risk. Notwithstanding anything herein contained, title and risk of
loss of the Worldwide Assets shall remain with the Vendors until the Worldwide
Transaction has been completed as herein contemplated. The Vendors shall
maintain the insurance represented herein to be held by them on the Worldwide
Assets until the Closing Date and the Vendors shall hold any proceeds thereof in
trust for the Parties as their interests may appear.
17.2 Reduction of Worldwide Purchase Price. In the event of damage or
destruction to the IBEX Pharma Worldwide Fixed Assets prior to the Closing Date,
to the extent not repaired or replaced by the members of the IBEX Group on or
-53-
before the Closing Date to the satisfaction of the members of the BioMarin
Group, the replacement value of the IBEX Pharma Worldwide Fixed Assets so
damaged or destroyed as determined by the members of the BioMarin Group and the
members of the IBEX Group in consultation with the insurer of the members of the
IBEX Group shall be deducted from the Worldwide Purchase Price. Without
limitation of any of the rights of the members of the IBEX Group hereunder, such
amounts may be reduced from the Worldwide Purchase Price by the cancellation of
a sufficient number of BioMarin Worldwide Transaction Shares that would
otherwise be issuable hereunder.
18. DELIVERY OF BOOKS AND RECORDS OF THE VENDORS
18.1 Books and Records. On the Closing Date, all documents and data solely
relating to the IBEX Group Worldwide Business shall be transferred by the IBEX
Group to BioMarin at the portion of the premises leased by IBEX to be made
available to the BioMarin Group under the agreement referred to in section
12.1(p).
19. MISCELLANEOUS
19.1 Tender. Any tender of documents or money hereunder may be made upon the
Parties or upon their respective solicitors as set forth herein.
19.2 Notice. All notices, requests, demands or other communications by the
Parties required or permitted to be given by one Party to another shall be given
in writing by personal delivery, telecopy or by registered or certified mail,
postage prepaid, addressed, telecopied or delivered to such other Party as
follows:
(a) if to the members of the IBEX Group in c/o of:
5485 Pare
Montreal, Quebec H4P 1P7
Attention: President
Fax No.: (514) 344-8827
with a copy to:
McCarthy Tetrault
Le Windsor, 1170 rue Peel
Montreal, Quebec H3B 4S8
Attention: Peter Martin
Fax No.: (514) 875-6246
(b) if to the members of the BioMarin Group, to:
-54-
371 Bel Marin Keys Boulevard, Suite 210
Novato, California
94949 USA
Attention: Raymond W. Anderson
Fax No.: (415) 382-7889
with a copy to:
Messrs. Cassels Brock & Blackwell LLP
Scotia Plaza, Suite 2100
40 King Street West
Toronto, Ontario M5H 3C2
Attention: Mark Bennett
Fax No.: (416) 360-8877
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California
90071-2371 USA
Attention: Siobhan Burke
Fax No.: (213) 627-0705
or at such other address or telecopier number as may be given by any of them to
the others in writing from time to time and such notices, requests, demands or
other communications shall be deemed to have been received when delivered, if
personally delivered, on the date telecopied (with receipt confirmed) if
telecopied and received at or prior to 5:00 p.m. local time and, if not, on the
next Business Day, and if mailed, on the date received as certified.
19.3 Further Assurances. The Parties shall sign such other papers, cause
such meetings to be held, resolutions passed and by-laws enacted and exercise
their vote and influence, do and perform and cause to be done and performed such
further and other acts and things as may be necessary or desirable in order to
give full effect to this Agreement and every part hereof.
19.4 Laws. This Agreement shall be governed by the laws of the State of
Delaware and the federal laws of the United States applicable therein and the
Parties hereby irrevocably attorn to the federal and state courts of the State
of California sitting in San Francisco, California. Each party hereby
irrevocably submits to the exclusive jurisdiction of such courts with respect to
such matters. Each party hereby irrevocably waives, to the fullest extent
-55-
permitted by law, any objection which it may now or hereafter have to the laying
of venue in any suit, action or proceeding in any of such courts or any claims
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.
19.5 Expenses. All out-of-pocket expenses (including legal and accounting
expenses) incurred in connection with the Worldwide Transaction shall be borne
the Party incurring the same.
19.6 Time of the Essence. Time shall be of the essence of this Agreement
and of every part hereof and no extension nor variation of this Agreement shall
operate as a waiver of this provision.
19.7 Entire Agreement. This Agreement constitutes the entire agreement
among the Parties with respect to all of the matters herein. This Agreement
supersedes any and all agreements, understandings and representations made among
the Parties prior to the date hereof, including, without limitation, that
certain Term Sheet dated June 4, 2001 and that certain memorandum from Mr. Gary
Mattan to Mr. Doug Cotter, dated July 17, 2001 as amended by agreements dated
August 22, 2001 and September 21, 2001. This Agreement shall not be amended
except by a memorandum in writing signed by all of the Parties and any amendment
hereof shall be null and void and shall not be binding upon any Party which has
not given its consent as aforesaid.
19.8 Assignment. No Party may assign this Agreement or any part hereof
without the prior written consent of the other Parties which may not be
unreasonably withheld. Subject to the foregoing, this Agreement shall enure to
the benefit of and be binding upon the Parties and their respective successors
and permitted assigns, but no other Person.
19.9 Invalidity. In the event that any of the covenants, representations
and warranties or any portion of them contained in this Agreement are
unenforceable or are declared invalid for any reason whatsoever, such
unenforceability or invalidity shall not affect the enforceability or validity
of the remaining terms or portions thereof contained in this Agreement and such
unenforceable or invalid, covenant, representation and warranty or covenant or
portion thereof shall be severable from the remainder of this Agreement.
19.10 Counterpart. This Agreement may be executed in several counterparts,
each of which so executed shall be deemed to be an original and such
counterparts when taken together shall constitute one and the same original
agreement which shall be binding on the Parties.
19.11 Waiver of Jury Trial. The Parties hereby agree to waive the right to a
trial by jury in any action arising hereunder.
-56-
19.12 Language. The Parties acknowledge and confirm that they have requested
that this Agreement as well as all notices and other documents contemplated
hereby be drawn up in the English language. Les parties aux presentes
reconnaissent et confirment qu'elles ont convenu que la presente convention
ainsi que tous les avis et documents qui s'y rattachent soient rediges dans la
langue anglaise.
-57-
IN WITNESS WHEREOF the Parties have duly executed this Agreement as of the date
and year first above written.
BIOMARIN PHARMACEUTICAL INC.
Per: /s/ Fredric R. Price
---------------------------------------------
BIOMARIN ENZYMES INC.
Per: /s/ Raymond W. Anderson
---------------------------------------------
IBEX TECHNOLOGIES INC.
Per: /s/ Paul Baehr
---------------------------------------------
IBEX PHARMACEUTICALS INC.
Per: /s/ Paul Baehr
---------------------------------------------
IBEX TECHNOLOGIES LLC
Per: /s/ Robert Heft
---------------------------------------------
IBEX TECHNOLOGIES CORP.
Per: /s/ Robert Heft
---------------------------------------------
TECHNOLOGIES IBEX R&D INC.
Per: /s/ Robert Heft
---------------------------------------------
-58-
Schedule 2.1 - Filter Technology
--------------------------------------------------------------------------------
The Filter Technology involves the immobilization of heparinase I in
a filter for the purpose of removing heparin from blood post bypass
surgery or post dialysis and in particular refers to the following
intellectual property
Extra-corporeal Systems For Heparin Neutralization Using Porous
Fibers Or Tubes Ann R. Comfort, Robert A. Heft, And Robert S. Langer,
Jr. M.I.T. Case No.4370
1. Canada Patent No.1315676 Entitled: "Heparin Neutralization Using
Compounds Immobilized And In Direct Contact With Whole Blood"
Page 1 of 3
Schedule 2.1 (a) IBEX Canadian Fixed Assets Being Transferred to BioMarin
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Research Asset Identifier (If Any) Location
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Container azote and cells 509930789679 - Thermoline 5485 Pare
Freezer REVCO ult-1375-7aba -70 degrees C P25d-160738-pd 5485 Pare
Freezer REVCO ult-2586-9-a1470 degrees C vo1g-343994-ug 5485 Pare
Cryogran Peletizer IQF Cryogran
Biosepra - Chromatography Columns/Resins BASF
Pharmacia - Chromatography Columns/Resins BASF
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Computer/Software Asset
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
User Software Version
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Richard Broughton Windows 95 4.00.950B
Pentium II 233 IntraNW Client 3.2.0.0
Microsoft office 97SR2b
o Microsoft Word 97SR2b
o Microsoft Excel 97SR2b
o Microsoft Power Point 97SR2b
o Microsoft Access 97SR2b
o Microsoft Outlook 8.04
Netscape 4.75
Sigma Plot 4.0
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Bernhard Eggiman Windows 95 4.00.950C
Pentium 200 IntraNW Client 3.2.0.0
Microsoft office 97SR2b
o Microsoft Word 97SR2b
o Microsoft Excel 97SR2b
o Microsoft Power Point 97SR2b
o Microsoft Access 97SR2b
o Outlook 8.04
Internet Explorer 5.00 SP1
Netscape 4.76
Sigma Plot 4.0
---------------------------------------------------------------------------------------------------------------------------
Page 2 of 3
---------------------------------------------------------------------------------------------------------------------------
Elizabeth Denholm Windows 95 4.00.950C
Pentium 166 IntraNW Client 3.2.0.0
Microsoft office 97SR2b
o Microsoft Word 8.0b
o Microsoft Excel 8.0e
o Microsoft Power Point 8.0b
o Outlook 8.04
Internet Explorer 5.00 SP1
Netscape 4.76
Sigma Plot 4.0
Sigma Stat 2.0
CarboDraw 1.0
Equilibrate 1.1
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Marc Pedneault Windows 2000 P. SP1 5.00.2195
Dell GX110 Internet Explorer 5.01 SP2
NW Client 4.80
Microsoft office 2000
o Microsoft Word 9.0
o Microsoft Excel 9.0
o Microsoft Power Point 9.0
o Microsoft Outlook 9.0
Microsoft Proxy client 2.0
NAI VirusScan NT 4.0.3a
Windows Media Player 7.01
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Donna Frampton Windows 95 4.00.950B
Pentium 166 IntraNW Client 3.2.0.0
Microsoft office 97SR2b
o Microsoft Word 8.0b
o Microsoft Excel 8.0e
o Microsoft Power Point 8.0b
o Microsoft Access 8.04
o Microsoft Outlook 8.0
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Zhongqi Shao Windows 95 4.00.950B
Pentium 166 IntraNW Client 3.2.0.0
Microsoft office 97SR2b
o Microsoft Word 97SR2b
o Microsoft Excel 97SR2b
o Microsoft Power Point 97SR2b
o Microsoft Outlook 8.04
Netscape 4.75
---------------------------------------------------------------------------------------------------------------------------
Page 3 of 3
---------------------------------------------------------------------------------------------------------------------------
Richard Abel Windows 95 4.00.950B
Pentium 166 IntraNW Client 3.2.0.0
Microsoft office 97SR2b
o Microsoft Word 8.0b
o Microsoft Excel 8.0e
o Microsoft Power Point 8.0b
o Microsoft Outlook 8.0
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Robert Heft Windows 95
Pentium 166 IntraNW Client
Microsoft office 95
o Microsoft Word
o Microsoft Excel
o Microsoft Power Point
o Microsoft Access
Windows Messaging 4.0
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Graphics Mac OS 7.5.3u2.0
Powermac Ram Doubler 1.6.2
NW Client 5.11
Microsoft office 4.2.1
o Microsoft Word 6.0.1
o Microsoft Excel 5.0a
o Microsoft Power Point 4.0
Microsoft mail 3.5
Netscape 3.01
Adobe Acrobat 3.0
Adobe Persuasion 3.0
Canvas 3.5.4
Canvas 5.0.1
Dos-Namer FAT 1.7.3
File Maker Pro 2.1
Jpeg viewer 3.3
Kaleidagraph 3.0
Adobe Photoshop 2.0.1
Image assistant 1.10
Omnipage Pro 2.1
Sigma Plot 4.16
Stuffit Deluxe 4.0
Mac Draw II 1.0v1
---------------------------------------------------------------------------------------------------------------------------
Page 1 of 3
Schedule 2.1 (a) IBEX Canadian Fixed Assets Being Transferred to BioMarin
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Research Asset Identifier (If Any) Location
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Container azote and cells 509930789679 - Thermoline 5485 Pare
Freezer REVCO ult-1375-7aba -70 degrees C P25d-160738-pd 5485 Pare
Freezer REVCO ult-2586-9-a1470 degrees C vo1g-343994-ug 5485 Pare
Cryogran Peletizer IQF Cryogran
Biosepra - Chromatography Columns/Resins BASF
Pharmacia - Chromatography Columns/Resins BASF
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Computer/Software Asset
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
User Software Version
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Richard Broughton Windows 95 4.00.950B
Pentium II 233 IntraNW Client 3.2.0.0
Microsoft office 97SR2b
o Microsoft Word 97SR2b
o Microsoft Excel 97SR2b
o Microsoft Power Point 97SR2b
o Microsoft Access 97SR2b
o Microsoft Outlook 8.04
Netscape 4.75
Sigma Plot 4.0
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Bernhard Eggiman Windows 95 4.00.950C
Pentium 200 IntraNW Client 3.2.0.0
Microsoft office 97SR2b
o Microsoft Word 97SR2b
o Microsoft Excel 97SR2b
o Microsoft Power Point 97SR2b
o Microsoft Access 97SR2b
o Outlook 8.04
Internet Explorer 5.00 SP1
Netscape 4.76
Sigma Plot 4.0
---------------------------------------------------------------------------------------------------------------------------
Page 2 of 3
---------------------------------------------------------------------------------------------------------------------------
Elizabeth Denholm Windows 95 4.00.950C
Pentium 166 IntraNW Client 3.2.0.0
Microsoft office 97SR2b
o Microsoft Word 8.0b
o Microsoft Excel 8.0e
o Microsoft Power Point 8.0b
o Outlook 8.04
Internet Explorer 5.00 SP1
Netscape 4.76
Sigma Plot 4.0
Sigma Stat 2.0
CarboDraw 1.0
Equilibrate 1.1
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Marc Pedneault Windows 2000 P. SP1 5.00.2195
Dell GX110 Internet Explorer 5.01 SP2
NW Client 4.80
Microsoft office 2000
o Microsoft Word 9.0
o Microsoft Excel 9.0
o Microsoft Power Point 9.0
o Microsoft Outlook 9.0
Microsoft Proxy client 2.0
NAI VirusScan NT 4.0.3a
Windows Media Player 7.01
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Donna Frampton Windows 95 4.00.950B
Pentium 166 IntraNW Client 3.2.0.0
Microsoft office 97SR2b
o Microsoft Word 8.0b
o Microsoft Excel 8.0e
o Microsoft Power Point 8.0b
o Microsoft Access 8.04
o Microsoft Outlook 8.0
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Zhongqi Shao Windows 95 4.00.950B
Pentium 166 IntraNW Client 3.2.0.0
Microsoft office 97SR2b
o Microsoft Word 97SR2b
o Microsoft Excel 97SR2b
o Microsoft Power Point 97SR2b
o Microsoft Outlook 8.04
Netscape 4.75
---------------------------------------------------------------------------------------------------------------------------
Page 3 of 3
---------------------------------------------------------------------------------------------------------------------------
Richard Abel Windows 95 4.00.950B
Pentium 166 IntraNW Client 3.2.0.0
Microsoft office 97SR2b
o Microsoft Word 8.0b
o Microsoft Excel 8.0e
o Microsoft Power Point 8.0b
o Microsoft Outlook 8.0
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Robert Heft Windows 95
Pentium 166 IntraNW Client
Microsoft office 95
o Microsoft Word
o Microsoft Excel
o Microsoft Power Point
o Microsoft Access
Windows Messaging 4.0
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Graphics Mac OS 7.5.3u2.0
Powermac Ram Doubler 1.6.2
NW Client 5.11
Microsoft office 4.2.1
o Microsoft Word 6.0.1
o Microsoft Excel 5.0a
o Microsoft Power Point 4.0
Microsoft mail 3.5
Netscape 3.01
Adobe Acrobat 3.0
Adobe Persuasion 3.0
Canvas 3.5.4
Canvas 5.0.1
Dos-Namer FAT 1.7.3
File Maker Pro 2.1
Jpeg viewer 3.3
Kaleidagraph 3.0
Adobe Photoshop 2.0.1
Image assistant 1.10
Omnipage Pro 2.1
Sigma Plot 4.16
Stuffit Deluxe 4.0
Mac Draw II 1.0v1
---------------------------------------------------------------------------------------------------------------------------
Schedule 2.1 (b) - IBEX Pharma Canadian Contracts, Permits and Licenses
TYPE OF CONTRACT COMPANY NAME COMPANY ADDRESS EFFECTIVE DATE or Number TERMINATION DATE/TERMS
Vehicle Lease GMAC Leaseco C/o Pitcher & Doyle May 2001 April 2004..SAAB 9-5
Services PO Box 1200,
Etobicoke, ON 885.00/month (Heft lease)
M9C 4V5
Licensing Agreements MIT-Assignment of "Retained
Marketing Rights" under
Technology Transfer and
Marketing Agreement" dated
December 11, 1996
CABG-IND HPB Ottawa IND # 60148
PCI-IND HPB Ottawa IND # 65006
Page 1 of 6
Schedule 2.1 (c) IBEX Pharma Canadian Inventory
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
NB: With the exception of Heparinase I (Dx grade) this Schedule represents 80% of the IBEX inventory
of all non-cGMP inventory. There is no cGMP material belonging to the Canadian companies (all cGMP
material belongs to IBEX Technologies Corp.).
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
NB: Activity, and values derived therefrom, were valid at at time produced. Various lots may have lost some or
all of initial activity.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Production t-Chondroitinase AC Inventory
------------------------------------------------------------------------------------------------------------------------------------
Lot # Volume/tube Quant Activity Total Conc. Protein Total Specific Act. Purity
(mL) (IU/mL) IU (mg/mL) (mg) IU/mg
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
tCHAC 25aug95 20 10 875 175000 4.3 860 204 98.9
10 16 875 140000 4.3 688
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
tCHAC 21aug95 20 11 950 209000 4.30 946 221 98.6
10 8 950 76000 4.30 344
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Production t-Chondroitinase B Inventory
------------------------------------------------------------------------------------------------------------------------------------
Lot # Volume/tube Quant Activity Total Conc. Protein Total Specific Act. Purity
(mL) (IU/mL) IU (mg/mL) (mg) IU/mg
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
0.25 5 320 400 3.3 4.1 97.0
0.5 3 320 480 3.3 5.0
CHB-981105 1 101 320 32320 3.3 333.3
tCHB 20mar97 0.5 0 600 0 6 0 100.0
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
tCHB 19sept96 1.5 26 49 1911 0.5 19.5 98
------------------------------------------------------------------------------------------------------------------------------------
Page 2 of 6
------------------------------------------------------------------------------------------------------------------------------------
Production Chondroitinase B Inventory
------------------------------------------------------------------------------------------------------------------------------------
Lot # Volume/tube Quant Activity Total Conc. Protein Total Specific Act. Purity
(mL) (IU/mL) IU (mg/mL) (mg) IU/mg
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
5 july #1 1996 0.2 20 493 1972 4.6 18.4 107.2 78.29
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
5 july #2 1996 0.2 21 502 2108 5.00 21 100.4 85.67
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Production Hep II Inventory
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Lot # Volume/tube Quant Activity Total Conc. Protein Total
------------------------------------------------------------------------------------------------------------------------------------
(mL) (IU/mL) IU (mg/mL) (mg)
------------------------------------------------------------------------------------------------------------------------------------
Hep II - 008 1 5 95.2 476 1.47 7.35
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Heparinase I Inventory
------------------------------------------------------------------------------------------------------------------------------------
STD.06 - Lot # 29912 (Ben Venue) Oct-97 690 Vials
------------------------------------------------------------------------------------------------------------------------------------
Page 3 of 6
------------------------------------------------------------------------------------------------------------------------------------
Production Hep III Inventory For Research Purposes
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Lot # Volume/tube Quant Activity Total Conc. Protein Total Protein
(mL) (IU/mL) IU (mg/mL) (mg) Total
------------------------------------------------------------------------------------------------------------------------------------
1 27 646.9 17466 10.23 276.21
49 6 646.9 190189 10.23 3007.62
tHepIII-P11CF 59 1 646.9 38167 10.23 603.57 3887.4
------------------------------------------------------------------------------------------------------------------------------------
1 28 619.4 17343 9.2 257.6
31 1 619.4 19201 10.2 316.2
tHepIII-P10CFD 49 3 619.4 91052 10.2 1499.4 2073.2
------------------------------------------------------------------------------------------------------------------------------------
1 21 654 13734 10.47 219.87
30 10 654 196200 10.47 3141
tHepIII-P10CF 26.5 1 654 17331 10.47 277.46 3638.3
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
tHepIII-P9 ***** 1 20 357.6 7152 6.6 132 132
------------------------------------------------------------------------------------------------------------------------------------
0.75 22 698 11520 12.58 207.57
40 0 698 0 12.58 0
tHepIII-P9CF ***** 79.5 0 698 0 12.58 0 208
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
tHepIII-P8 1 10 475 4750 8.84 88.4 106
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
tHepIII-HS-07 1 16 240 3840 5.68 90.88 102
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
1 40 115 4600 2.55 102
tHepIII-P4CF-M4 0.5 34 115 1955 2.55 43.35 145
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
THep3-P1 0.5 7 224 784 5.4 18.9 164
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
THep3-P2 1 1 263 263 5.32 5.32
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
T5L-H3-032 withtrimeth 10 10 155 15500 2.84 284
8 1 155 1240 2.84 23 307
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
T5L-H3-031/notrimeth 10 9 192 17280 3.52 317
5 1 192 960 3.52 18 334
------------------------------------------------------------------------------------------------------------------------------------
Page 4 of 6
------------------------------------------------------------------------------------------------------------------------------------
T5L-H3-032/5days-HA 0.5 1 228 114 3.2 2
10 0 228 0 4.2 0
1 3 228 684 4.2 13 14
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
10 0 259 0 4.4 0
T5L-H3-032/2days-HA 1 7 259 1813 4.4 31 31
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
40 0 364 0 6.36 0
25 0 364 0 6.36 0
10 0 364 0 6.36 0
tHepIII-P4CF 5 1 364 1820 6.36 32
1 2 364 728 6.36 13 45
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
tHepIII -CSpool 2-101296 0.5 9 75 337.5 1.58 7
0.15 1 75 11 1.58 0.2 7
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
tHepIII-CSpool 1-101296 * 0.5 4 169 338 3.35 7 7
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
tHepIII-R041296 ** 2 16 285 9120 5.6 179 179
------------------------------------------------------------------------------------------------------------------------------------
Total: 50,209 929
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
tHepIII STD.01*** 0.25 60 1233
------------------------------------------------------------------------------------------------------------------------------------
Page 5 of 6
------------------------------------------------------------------------------------------------------------------------------------
PAL Inventory
------------------------------------------------------------------------------------------------------------------------------------
Lot # Volume/tube Quant Activity Total Conc. Protein Total Spec act. Shape
(mL) (IU/mL) IU (mg/mL) (mg) (IU/mg)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
27.OCT.00 0.2 36 266.0 1915.2 53.2 383.0 ~ 5IU/mg
2.0 3 266.0 1596.0 53.2 319.2
5.0 5 266.0 6650.0 53.2 1330.0
1.2 1 266.0 319.2 53.2 63.8
15.MAY.00 N/A 4 N/A N/A N/A 9200.0 < 5IU/mg
(Precipitated enzyme)
17.JUL.01 12.0 9 71.7 7743.6 14.3 1548.7 < 5IU/mg
(Butyl purification)
6.JUN.01 350.0 11 24.9 95865.0 5.0 19173.0 < 5IU/mg
(Filtered Enzyme)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
rPAL Crystal
18.OCT.00 ~100 1 124.1 24820 24.8 2480 ~ 5IU/mg Broken
(Batch "MIX")
06.OCT.00 ~150 1 128.7 19305 25.7 3855 ~ 5IU/mg
(Batch "350")
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
MSEC rPAL
11.DEC.00 ~20 1 23.1 462 4.6 92.4 Broken
14.AUG.01 67 1 39.4 2639.8 7.9 528.0
------------------------------------------------------------------------------------------------------------------------------------
Page 6 of 6
-----------------------------------------------------------------------------------------------------------------------------------
PAL Fermentate Inventory
-----------------------------------------------------------------------------------------------------------------------------------
Fermentation Lot Volume Activity Location Comments
------ -------- -------- --------
------------------------------------------------------------------------------------------------------------------------------------
# Containers L IU/mL Freezer Shelf
------------------------------------------------------------------------------------------------------------------------------------
E5L-PAL-104-105 1 1.5 20 1 5 Low activity in report -
may have been con to 20IU/mL
E5L-PAL-108-109 2 2 20 1 5 Pooled and Frozen
E5L-PAL-110-111 3 6 11 1 2 Self Cycling Fermentation
Trials
E5L-PAL-111-112 1 2 ? 1 4
E5L-PAL-112-113 1 1 18 1 4 Pooled and Frozen
E15L-PAL-007 1 3 12 1 2 Frozen
E15L-PAL-008 1 3 12 1 2 Frozen
E15L-PAL-007-008 5 12 21 1 2 & 4 Pooled and Frozen
B100 E15L-PAL-014 7 19 22 1 4 Frozen
E15L-PAL-017 6 18 16 1 5 Frozen
E15L-PAL-020 7 20 12 1 3 Low titer
E15L-PAL-021-022 10 18.5 19 2 3 50:50 Pool of 48 and 30
hours growth
E15L-PAL-023-024 6 24 15 2 3 Labeled 023-024 with marker.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Freezer 1= Freezer beside centrifuge in Common Equipment Room
Freezer 2= Stockroom Freezer
Shelf Order: Top=1
------------------------------------------------------------------------------------------------------------------------------------
Schedule 2.1 (d) IBEX Pharma Canadian Intellectual Property
---------------------------------------------------------------------------------------------------------------------------------
Patents
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Patent Title Number Country Owner or Licensee
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Attenuation of Wound Healing Processes 2,194,370 Canada Pharma
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Chondroitin Lyase Enzymes 2,194,375 Canada Pharma
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Cell Lines
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Enzyme Cell Line Number of Vials
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
rPAL (E.coli): E.coli Y1091/pIBX-7 25
---------------------------------------------------------------------------------------------------------------------------------
native Hep I (F.heparinum): M941215.FH (Master Cell Bank) 125
---------------------------------------------------------------------------------------------------------------------------------
RHep I (F.heparinum): F. heparinum FIBX5 25
---------------------------------------------------------------------------------------------------------------------------------
rHep I (F.heparinum): F. heparinum undesignated (stabilized
strain under development) NA
---------------------------------------------------------------------------------------------------------------------------------
rHep II (F.heparinum): F. heparinum FIBX3 25
---------------------------------------------------------------------------------------------------------------------------------
rHep III (F.heparinum): F. heparinum FIBX4 25
---------------------------------------------------------------------------------------------------------------------------------
rHep III (F.heparinum): F. heparinum (FHIII-47-1) (stabilized
strain) 25
---------------------------------------------------------------------------------------------------------------------------------
rChon AC (F.heparinum): F. heparinum FIBX6 25
---------------------------------------------------------------------------------------------------------------------------------
rChon B (F.heparinum): F. heparinum FIBX7 25
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Investigational New Drugs
Canadian Neutralase CABG IND 60148
Canadian Neutralase PCI IND 65006
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Trade Marks Application Number Country
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
EXTRAVASE 898,419 Canada
NEUTRALASE 752,453 Canada
PHENYLASE common law mark Canada
---------------------------------------------------------------------------------------------------------------------------------
Schedule 2.2: IBEX Pharma Canadian Assumed Liabilities
--------------------------------------------------------------------------------
None, except in respect of severance obligations to the Therapeutic Asset
Employees as set forth in Section 2.3 of the Canadian Asset Purchase Agreement.
Schedule 2.3 - IBEX Group Severance Practices
This policy will provide guidelines in determining severance allocations for
IBEX employees in the case of mass layoffs due to restructuring, downsizing,
mergers, or take-offers. Employees terminated for cause will not be entitled to
the same benefits.
---------------------------------------------------------------------------------------------------------------------
Length of service Loi sur Normes du Travail C.C.Q. (Quebec Civil Court) IBEX Policy
min. (L.S.A.) Notice
---------------------------------------------------------------------------------------------------------------------
> 3 mos, < 1yr 1 week 2 - 5 weeks 4 weeks
---------------------------------------------------------------------------------------------------------------------
> 1 yr, <5 yrs 2 weeks 1 - 3 months 5 months
---------------------------------------------------------------------------------------------------------------------
> 5 yrs, < 10 yrs. 4 weeks 8 - 10 months 8 months
---------------------------------------------------------------------------------------------------------------------
> 10 yrs 8 weeks 8 - 10 months 9 months
---------------------------------------------------------------------------------------------------------------------
Senior employees such as supervisors, and group leaders typically receive an
additional 2 - 3 months depending on their age and functions (taking into
consideration the ease of finding equivalent employment).
When calculating severance payments, factors that need to be added include
vacation pay, RRSP contribution, health and dental insurance.
Employees have three options when they are given a termination letter.
1. They can remain in the employment of the company for the full period of
notice;
2. They can give 2-4 weeks notice (depending on the position held by the
individual) and take 60% of the balance of the notice period in a cash
settlement;
3. They can take a combination of both.
We have been able to justify a longer-than-normal period of notice on the basis
that during the period that employees are employed by IBEX we can claim a 40%
rebate from the Quebec government. This has allowed us to stretch the dollars
further than we otherwise could if we used the same net amount as cash
severance. In the event employees wish to take a cash settlement, a 60% rule
will apply.
Lets take the case of an employee who has received 23 weeks notice on December
8th:
IBEX requires a three week notice to wrap up any outstanding matters. If that
employee were to leave December 31, 1999 he or she would be paid through the
next three weeks and would have 20 weeks remaining of the notice period. If that
employee wanted to take severance instead of notice we would only be able to
provide 60% of that 20 weeks or 12 weeks lump sum payment (plus whatever
vacation pay etc that was due)
Similarly, someone who has received 23 weeks notice and wants to leave at the
end of January would have 7 weeks notice and 60% of the remaining 16 weeks (i.e.
9.6 weeks) in cash.
====================================================================================================================================
IBEX Pharmaceuticals Inc.
------------------------------------------------------------------------------------------------------------------------------------
IBEX Policy (notice)
NAME OF EMPLOYEE DATE OF HIRE C.C.Q. As at Jan. 1
(reasonable notice)
------------------------------------------------------------------------------------------------------------------------------------
Budzilowitz, Maureen September 1997 1 - 3 months 5 months
------------------------------------------------------------------------------------------------------------------------------------
Dufour, Derik March 1995 5 - 7 months 5 months
------------------------------------------------------------------------------------------------------------------------------------
Eckerd, Marie December 1996 2 - 4,5/5 months 6 months
------------------------------------------------------------------------------------------------------------------------------------
Forgues, Melissa September 1999 3 - 5 weeks 4 weeks
------------------------------------------------------------------------------------------------------------------------------------
Lin, Yongqing February 1997 2 - 3,5/4 months 5 months
------------------------------------------------------------------------------------------------------------------------------------
Lu, Wenying October 1993 3 - 4 months 5 months
------------------------------------------------------------------------------------------------------------------------------------
Ohayon, Catherine March 1995 1 - 3 months 5 months
------------------------------------------------------------------------------------------------------------------------------------
Su, Hongsheng April 1991 10-12 months 12 months
------------------------------------------------------------------------------------------------------------------------------------
Tkalec, Lydia September 1990 8 - 10 months 8 months
------------------------------------------------------------------------------------------------------------------------------------
Zhang-Sun, Guiyi September 1997 2 - 4,5/5 months 5 months
====================================================================================================================================
* letters providing employees with notices of termination of employment were
dated and distributed on December 7th.
Schedule 2.4 IBEX Pharma Canadian Excluded Assets
--------------------------------------------------------------------------------
1. All the fixed assets of the Vendors except for those described in Schedule
2.1(a).
2. All inventory of the Vendors except for that described in Schedule 2.1(d),
which for greater certainty excludes any non-GMP heparinase I material
currently at BASF.
3. All rights to the "IBEX" trademark in Canada.
Schedule 3.2 Allocation of Purchase Price by Vendor
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Company ($CDN)
---------------------------------------------------------------------------
---------------------------------------------------------------------------
IBEX Pharmaceuticals Inc. $ 1,138,898
---------------------------------------------------------------------------
Schedule 3.3 Allocation of Purchase Price by Assets and Vendor
-----------------------------------------------------------------------------------------------------------------------------
Intellectual
Fixed Assets Property
Vendor Purchaser (Class V) (Class VI) Total
-----------------------------------------------------------------------------------------------------------------------------
IBEX Pharmaceuticals Inc. (1) BioMarin NS (2) $ 12,700 $ 1,126,198 $ 1,138,898
Total $ 12,700 $ 1,126,198 $ 1,138,898
-----------------------------------------------------------------------------------------------------------------------------
(1) A Canadian Corporation
(2) A Nova Scotia Unlimited Liability Company
-----------------------------------------------------------------------------------------------------------------------------
Schedule 5.1 (a) IBEX Organization/Group Juridictions
--------------------------------------------------------------------------------
o Quebec, Canada
o Delaware, U.S.A.
o Pennsylvania, U.S.A.
Schedule 5.1 (f) IBEX Group Residency
--------------------------------------------------------------------------------
Canadian Offices and Laboratories
---------------------------------
IBEX Technologies Inc.
5485 Pare Street
Town of Mount Royal, Quebec
H4P 1P7
U.S. Offices
------------
IBEX Technologies Corp. (Until Nov. 30, 2001)
5, Great Valley Parkway
Suite 300
Malvern, PA 19355
IBEX Technologies LLC
900 Market Street
Suite 200
Wilmington, Delaware 19801
Schedule 5.1(j) - Suppliers
Page 1 of 4
------------------------------------------------------------------------------------------------------------------------------------
Supplier Address FY-2001
------------------------------------------------------------------------------------------------------------------------------------
Ministre du Revenu du Quebec Montreal, QC $ 327,410.91
Receiver General for Canada Sherbrooke,QC $ 236,710.22
Opex Real Estate Management 150 Authier, Suite 208 , St. Laurent, Quebec, H4M 2C6, Canada $ 179,224.18
PriceWaterhouse Coopers 1250 Rene Levesque Blvd.W. Suite 3500, Montreal, QC, H3B 2G4, $ 135,190.03
Massachusetts Inst. Technology Technology Licensing Office Five Cambridge Center, Cambridge, MA, 02142-1493, $ 76,857.14
Dale Parizeau 1440 rue Ste Catherine Ouest , Montreal, QC, H3G 2V3, $ 68,831.83
Canada Life Assurance Company 630 Rene -Levesque Blvd W., Montreal, P.Q., H3B 4V5, $ 60,092.30
Corp.de Logiciels Conamex Montreal, QC, H2C 2W7, $ 50,471.58
Royal Bank Visa Toronto, Ontario, M5W 2E6, $ 44,655.05
Hydro Quebec CP 11022 Succ. Centre-Ville , Montreal,, QC, H3C 4V6, $ 42,869.34
Montreal Children's Hospital Attn Milan Cotiangco Special Funds Office -T124, Montreal, P.Q., H3H 1P3, $ 42,000.00
Garantie Quebec 393 rue St. Jacques, Montreal, QC, H2Y 1N9, $ 36,612.24
Harland Pontiac Buick GMC 955 boul. Montreal Toronto, Dorval, Que., H9S 1A2, $ 33,426.27
Institute de Cardiologie Mtl. 500 rue Belanger est , Montreal, P.Q., H1T 1C8, $ 29,480.00
Federal Express (Canada) P.O. Box 3700 , Don Mills, ON, M3C 3Y1, $ 23,013.66
LIW Consultants 5160 Decarie, Montreal, P.Q., H3X 2H9, $ 23,005.00
B. Braun Biotech Inc. 999 Postal Road, Allentown, PA, 18109, $ 22,724.04
APV Canada Inc. 6555 Cote de Liesse, Montreal,, QC, H4T 1E6, $ 21,423.31
Goodman Phillips & Vineberg 430 Park Ave., l0th. Fl., , New York,, NY, 10022, $ 20,896.65
Canon Canada Inc. P.O. Box 5300 Markham Industrial Park, , ONT, L3R 0R4, $ 19,567.28
Hale & Dorr P. Box 4550, Boston, Mass., 02212-4550, $ 18,750.24
Amicron Technologies Inc. 1512 Riley Avenue, Burlington, Ontario, L7M 3C1, $ 17,951.98
Arnall Golden & Gregory LLP 2800 One Atlantic Center, Atlanta, Georgia, 30309-3450, $ 15,230.20
Waters Limited P.O. Box 6 Malton Post Office, Mississauga,, ONT, L4T 3B6, $ 14,533.65
Entretien Gawisanoru Montreal, QC, H3K 2M3, $ 14,400.00
Davis Ward Phillips & Vineberg 1501 McGill College Ave., 26th. Floor, Montreal,, QC, H3A 3N9, $ 13,928.61
Ctr.Applied Microbiology&Resea Porton Down, Salisbury, Wiiltshire UK, , $ 13,924.27
Fisher Scientific Inc. P.O. Box 9200 Terminal , Ottawa, ONT, K1G 4A9, $ 13,666.07
Dionex Canada Ltd., 1540 Cornwall Road, Oakville, ONT, L6J 7W5, $ 13,323.83
Ville Mont-Royal 90 Roosevelt Avenue , Mont-Royal, QC, H3R 1Z5, $ 12,769.90
Amersham Pharmacia P.O.Box 2027, Montreal, P.Q., H3B 4H4, $ 11,426.00
Comm. Sante&Securite Travail Montreal, QC, H3C 5S1, $ 11,322.19
Starber International 410 St. Nicolas , Montreal, QC, H2Y 2P5, $ 10,703.56
Mandel Scientific Co. Ltd. 2 Admiral Place, R.R. 6, Guelph, ON, N1H 6J3, $ 10,568.39
Crites & Riddell 8203 Montreal Toronto Blvd., , Mtl. West,, QC, H4X 1N1, $ 10,081.41
Lab Pre-Clinical Research Int. 560, Cartier Blv. West , Laval,, P.Q., H7V 3P6, $ 9,432.06
Sigma Chemical Company Inc. P.O. Box 6100 Postal Stn, Toronto, ONT, M4Y 2Z2, $ 9,334.90
Videotron Telecom (1998) Ltee. Acct. # 0009-0005-3372 , Montreal,, P.Q., H3C 5H6, $ 8,379.98
Services Financiers Image Inc. Burlington, Ontario, L7R 3Y8, $ 8,152.56
Beckman Coulter P.O. Box 8825,, Toronto, ON, M5W 1P8, $ 8,111.11
Maritime Life Insurance Halifax, Nova Scotia, B3J 2X5, $ 8,025.00
La Cie Carmichael Ltee 3822 Ave. Courtrai , Montreal, QC, H3S 1C1, $ 7,344.20
CIT P.O. Box 4094, Toronto,, Ontario, M5W 3T1, $ 6,789.71
Holland & Knight LLP 1916 Harden Blvd., Lakeland, Florida, 33802-2092, $ 6,064.12
AT & T Canada Telecom Services #C3079 P.O. Box 2980, Calgary, Alberta, T2P 4S1, $ 5,196.69
Galerie Elca London Ltee 1196 Sherbrooke St W.,, Montreal,, QC, H3A 1H6, $ 4,888.56
Cantox Health Sciences Intl. 2233 Argentia Road, Mississauga, Ontario, L5N 2X7, $ 4,714.40
AMJ Laboratory Services Ltd. P.O. Box 151, Millgrove, ONT, L0R 1V0, $ 4,673.76
Conseil Gestion des Risques Suite 3l0 455 ouest , rue St-Antoine, Montreal,, QC, H2Z 1J1, $ 4,569.10
Universite de Montreal Direction des finances Case Postale 6204, Montreal, QC, H3C 3T4, $ 4,535.00
Postage by Phone Royal Bank of Canada 325 Front St. W., 4th.fl CMRS, Toronto, ONT, M5V 2V5, $ 4,370.95
American Type Culture Collect. Manassas, Virginia, 20110, $ 4,320.00
Sarstedt Canada Inc. 6373 Des Grandes Prairies , St-Leonard,, QC, H1P 1A5, $ 4,164.42
Schedule 5.1(j) - Suppliers
Page 2 of 4
------------------------------------------------------------------------------------------------------------------------------------
Supplier Address FY-2001
------------------------------------------------------------------------------------------------------------------------------------
Fonds Solidarite Trav du Que. C.P. 1000, Montreal, P.Q., H2P 2Z5, $ 4,095.00
CANOX 5555 Boul.des Grandes Prairies , Montreal, QC, H1R 1B4, $ 3,252.68
Medicorp Inc. 5800 ave. Royalmount , Montreal, QC, H4P 1K5, $ 3,151.71
Phoenix International 2350 Cohen St.,, Saint Laurent, QC, H4R 2N6, $ 3,105.68
Goodwin Office Furnishings Ltd 105 Leacock, Pointe Claire,, QC, H9R 1H2, $ 3,013.66
Pall Canada Ltd. Mississauga, Ont, L5N 3R3, $ 2,883.43
VWR Scientific Inc. P.O. Box 1137 Commerce Court Postal Stn., Toronto, ON, M5L 1K1, $ 2,778.71
Steris Canada Inc. P.O. Box 3546, Toronto, Ont, M5W 3G4, $ 2,770.90
Groupe-Conseil Aon Montreal, QC, H3B 4W5, $ 2,639.82
Kaz-Mat Inc. 2422 Harrigan,, Lasalle,, QC, H8N2H4, $ 2,608.56
Datacure Associates St. Laurent,, P.Q., H4R 2Z2, $ 2,584.28
Spitz,Klinger&Partner GBR $ 2,560.71
Gaz Metropolitain C.P. 6115 Succursale A, Montreal,, QC, H3C 4N7, $ 2,533.82
Calbiochem-Novabiochem Corp Pasadena, CA, 91185-4965, $ 2,523.17
La Corp Work Wear Du Quebec 8400, 19th. Avenue, Montreal, QC, H1Z 4J3, $ 2,484.00
AT&T Canada Toronto, Ont, M6S 4W9, $ 2,440.33
Phenomenex 2320 W. 205th. St.,, Torrance, CA, 90501, $ 2,427.84
John Crane Canada Inc. Box 3248,, Hamilton, Ontario, L8H 7L3, $ 2,408.34
Le Groupe IsH2OTop Dorion, P.Q., J7V 5V8, $ 2,375.56
Encadrement Imaginart Inc. St. Laurent, P.Q., H4R 1V4, $ 2,375.27
Snackon Food Services Ltd. 1936 St. Regis , Dorval, QC, H9P 1H6, $ 2,292.24
Federal Express (U.S.A.) P.O. Box 1140 , Memphis, TN, 38101-1140, $ 2,273.10
Securitas 1980 Sherbrooke St. W #300, Montreal, QC, H3H 1E8, $ 2,246.51
Pitney Bowes Inc. P.O. Box 856390, Louisville, KY, 40285-6390, $ 2,103.57
Esso Canada P. O. Box 1400, North York,, ON, M3C 3H5, $ 2,075.99
Bio-Rad Laboratories (Canada) 5671 McAdam Road , Mississauga, ON, L4W 1N9, $ 2,047.52
EM Industries Canada P.O.Box 3726, Toronto, Ontario, M5L 1K1, $ 2,023.87
Bryns Zacco A/S $ 1,665.93
Carsen Group Inc. 151 Telson Road , Markham, ON, L3R 1E7, $ 1,566.74
OXYMED 9592 Berri , Montreal, QC, H2M 1R4, $ 1,483.57
Millipore Canada Limited Box 8813 Station A Front Street, Toronto, ON, M5W 1P8, $ 1,472.11
Intersan Inc. c/o RCI Environnement 9501 blvd. Ray Lawson, Anjou, QC, H1J 1L4, $ 1,435.56
Service et Certificatio ABC Lasalle, QC, H8N 1A5, $ 1,425.17
PyroSpec 8746 Boulevard Pie 1X, Montreal,, QC, H1Z 3V1, $ 1,373.40
Sterogene 5922 Fansworth Court, Carlsbad,, CA, 92008, $ 1,368.00
Cie Electrique Britton Ltee. Ville Mont-Royal, P.Q., H4P 2L3, $ 1,362.08
Reddie & Brose $ 1,321.57
Serologicals Proteins, Inc. P.O. Box 281928, Atlanta, GA., 30384-1928, $ 1,229.56
Plantes Interieures 7519 Eastluc Road, Cote St. Luc, QC, H4W 1M7, $ 1,159.44
Canbec Courier 1426 rue Notre Dame Ouest, Montreal, QC, H3C 1K9, $ 1,115.05
Tosoh Biosep, LLC Post Office 631804 , Cincinnati, Ohio, 45263-1804, $ 1,088.64
Duford & Lavigne 2165 rue Parthenais, Montreal,, QC, H2K 3T3, $ 1,017.96
Safety-Kleen Services (Quebec) 7305 boul Marie-Victorin Bureau 200, Brossard, QC, J4W 1A6, $ 1,014.52
Medtronic of Canada Ltd., 6733 Kitimat Road , Mississauga, ONT, L5N 1W3, $ 966.21
BRI-NRC Financial Services 1200 Montreal Road, Ottawa,, ON, K1A 0R6, $ 937.98
West Island SAAB Isuzu 9775 Transcanadienne, V. St. Laurent, P.Q., H4S 1T6, $ 935.00
Invitrogen Canada Inc. P.O. Box 12098 Station A, Toronto, ON, M5W 1P8, $ 922.97
MEGS Inc. 2675 rue Miniac, Ville St. Laurent, QC, H4S 1E5, $ 838.55
Laboratoire Mat 610 Adanac, Beauport, QC, G1C 7B7, $ 837.38
Les alcools de commerce inc. 2 Chelsea Lane, Brampton, ONT, L6T 3Y4, $ 807.64
Pitney Bowes Burlington, ONT, L7R 4T7, $ 793.69
Dyets Inc. 2508 Easton Avenue, Bethlehem, PA., 18017, USA $ 786.45
New Pig Corp.-Canada Windson, Ontario, N9A 6L6, $ 768.69
Schedule 5.1(j) - Suppliers
Page 3 of 4
------------------------------------------------------------------------------------------------------------------------------------
Supplier Address FY-2001
------------------------------------------------------------------------------------------------------------------------------------
ProClinical PharmaceuticalServ 300 Kimberton Road, Phoenixville, PA, 19460, $ 720.00
Westech Industrial Ltee. 5636 Burbank Crescent S.E., , Calgary, ALTA, T2H 1Z6, $ 715.46
Nova Refrigeration 01301 Charlevoix, Montreal,, QC, H3K 3A1, $ 714.59
Avi Financial Corporation Inc. 3285 Cavendish Blvd.,, Montreal, P.Q., H4B 2L9, $ 690.15
HCR Photo Enr. Helen Cohen Rimmer , Pincourt, PQ, J7V 5E6, $ 649.32
GEA Process Technology Canada 5353 John Lucas Drive, Burlington, Ontario, L7L 6G5, $ 648.09
Soc. L'Assurance Auto. Quebec P.O. Box 19100, Quebec, QC, G1K 8J1, $ 640.00
Molecular Probes P.O. Box 22010, Eugene, OR, 97402-0469, $ 604.80
Neuro Probe Inc. Gaithesburg, MD, 20877, $ 604.80
Monserco Brampton, Ontario, L6T 4W3, $ 517.61
Labrador Laurentienne Inc. P.O. Box 4514, Toronto,, Ontario, M5W 4L7, $ 516.95
S & D Chemicals Canada Ltd. 1476 Du College, Ville St. Laurent, P.Q., H4L 2L7, $ 515.31
Micropatent East Haven, CT., 06512-3358, $ 494.66
Xerox Canada Ltee Montreal, QC, H3C 2W3, $ 486.56
Monster.ca C.P. 11013, Montreal, P.Q., H3C 4T9, $ 431.34
Precision Biologicals 900 Windmill Rd., # 100, Dartmouth, NS, B3B 1P7, $ 428.00
A&C American Chemicals Ltd. 3010 De Baene, Montreal, P.Q., H4S 1L2, $ 391.50
Danka Canada Inc. CP 6249, Montreal,, QC, H3C 4E9, $ 387.63
College Info-Technique 3633 boul. des Sources, Montreal, P.Q., , $ 378.14
Polymos 150, 5e boulevard ,, Vaudreuil,, QC, J7V 5M3, $ 356.52
Chiswick P.O.Box 603 , Midland, ON, L4R 4L3, $ 354.60
Ateliers Mobiles Grondin Montreal Nord, QC, H1G 4N6, $ 351.36
SIN-CAN INC. #3, 4015-1st. St. S.E., , Calgary, , T2G 4X7, $ 341.97
MBS Bearing Service Inc. 1520 55th. Ave., Lachine, P.Q., H8T 3J5, $ 321.97
BAE Systems Canada Inc. 600 Blvd. Dr. Frederik-Philips, St. Laurent, QC, H4M 2S9, $ 307.12
Med Tech Environmental Ltd. 1606 Jean-Lachaine , Ville St.Catherine, P.Q., J0L 1EO, Canada $ 306.71
Ambion Inc. P.O. Box 201776, Houston, TX, 77216-1776, $ 300.46
Shell Canada Products Limited Box 1775 Don Mills Post Office, North York, Ontario, M3C 3J6, $ 287.35
Bureau D.A. Caslonga-Josse Paris, France, 75008, $ 280.63
Festival Packaging Ville St. Laurent, QC, H4T 1G7, $ 269.26
Gordon Technologies 6-2400 Dundas St. W., # 354, Mississauga,, ONT, L5K 2R8, $ 262.15
Price Costco Canada Inc. Renewal Department , Montreal, QC, H3C 4T5, $ 258.81
Promotions Nuits Magiques Inc. 42 De Rigaud, Repentigny, QC, J5Y 3R4, $ 241.19
Ministre des Finances Quebec, QC, G1K 9B3, $ 237.00
Iron Mountain Canada Corp. Toronto, ONT, M5L lKl, $ 221.22
Gazette P.O. Box 5000 Place D'armes, Montreal, QC, H2Y 3V9, $ 220.85
Motiva D.D.O., P.Q., H9B 2Y9, $ 207.05
Dade Behring Canada Inc. 1200 Courtney Park Drive East, Mississauga,, ONT., L5T 1P2, $ 204.37
Misco Canada Inc. 171 Esna Park Drive, Markham,, ONT, L3R 4J1, $ 197.63
Medtronic GmbH Am Soestern 3, Dusseldorf, Germany, 40507, $ 169.86
Executive Office Link 7 Great Valley Parkway, Malvern, PA, 19355, $ 151.25
Recombinant Capital Inc. 2121 N. California Blvd.,, Walnut Creek, CA, 94596, $ 150.32
McMahon Medical News Subscription Department 545 West 45th. Street,, New York, NY, 10036, $ 127.88
McGill University Mass Spectrometry Unit, Montreal, QC, H3A 1A3, $ 125.00
Cie RecyclagePapier Montreal 3820 St. Patrick, Montreal, QC, H4E 1A4, $ 120.76
Health & Welfare Canada F.G. Banting Research Centre, Ottawa,, ONT, K1A-0L2, $ 117.36
GA International P.O. Box # 41534 965 boul. Cure Labelle, Laval, P.Q., H7V 2V0, $ 109.50
Lormir Biomedical 95 rue Huot, Notre Dame Ile Perro, P.Q., J7B 7M4, $ 93.75
Microcell Solutions Inc. Montreal, P.Q., H3C 5J6, $ 89.26
Shred-It St. Laurent, P.Q., H4S 1P8, $ 86.26
MPI Research Bedford Park, Il, 60499-2904, U.S.A. $ 77.88
Glyco 11 Pimentel Court, Novato, CA, 94949-5608, $ 72.00
Ultident Scientific St Laurent, QC, H4S 1S1, $ 63.21
Schedule 5.1(j) - Suppliers
Page 4 of 4
------------------------------------------------------------------------------------------------------------------------------------
Supplier Address FY-2001
------------------------------------------------------------------------------------------------------------------------------------
Communications Accessibles Mtl 1205 Ave. Papineau, Off.# 050, Montreal, QC, H2K 4R2, $ 60.39
National Philatelic Centre Antigonish, NS, B2G 2R8, $ 46.97
Transport Dorion Ltee. 1085, Boul. Harwood,, Dorion,, QC, J7V 8P2, $ 44.83
Compro Communications Inc. 1097 boul. de la Chaudiere , Quebec, QC, G1Y 3T4, $ 41.41
National PKU News 6869 Woodlawn Ave., N.E. # 116, Seattle,, WA, 98115-5469, $ 32.51
Purolator Courier P.O. Box 1100 Etobicoke Postal Station, Etobicoke, ONT, M9C 5K2, $ 14.63
There are no contingency fees or contractual payments due to any of the
suppliers listed above as it pertains to the assets being transferred to
BioMarin.
Schedule 5.1 (k) - Clinical Trial Sites
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Site Name Trial Effective Date
--------------------------------------------------------------------------------
Institut de Cardiologie de Montreal NTL05 (Neutralase) Feb-1-2000
--------------------------------------------------------------------------------
Schedule 5.1 (p) - IBEX Financial Statements
--------------------------------------------------------------------------------
o Fiscal 2000 Audited Statements from Annual Report (Exhibit A)
o Fiscal 2001 Unaudited (Exhibit B)
Schedule 5.1(r) - Permits and Licenses
-----------------------------------------------------------------------------------------------------------
Business Registration Number 1147463336 - Provincial
-----------------------------------------------------------------------------------------------------------
Certificate of Inscription Government of Quebec, Ministere du Revenu,
TVQ - identification 1021018631
-----------------------------------------------------------------------------------------------------------
Goods and Services Tax / Harmonized Sales Tax Registration Revenu Canada, GST
Registration no. 890393085 RT
-----------------------------------------------------------------------------------------------------------
Certificate of Occupancy Town of Mount Royal
-----------------------------------------------------------------------------------------------------------
CSST-IBEX Pharmaceuticals NEQ # 1147463336
Dossier # 76391392
-----------------------------------------------------------------------------------------------------------
CSST-IBEX Technologies NEQ # 1143989920
Dossier # 737754484
-----------------------------------------------------------------------------------------------------------
- Neutralase Canadian CABG IND IND # 60148
- Neutralase Canadian PCI IND IND # 65006
-----------------------------------------------------------------------------------------------------------
Nuclear Substances and Radiation Devices License 13188-1-02.0
-----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
Schedule 5.1 (s) - Contracts
----------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
COMPANY TYPE OF AGREEMENT
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
Abbott Laboratories (Ross Division) Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Abbott Laboratories Inc. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Albany Medical College Clinical Trial Agreement NTL02 - Pittsburgh B
---------------------------------------------------------------------------------------------------------
Albertinen-Krankenhaus Clinical Trial Agreement Dr. Bleese - Hamburg, Germany B
NTL02 and NTL04
---------------------------------------------------------------------------------------------------------
Alexion Pharmaceuticals Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Allegheny Singer Research Institute Clinical Trial Agreement NTL01 - Pittsburg, Pennsylvania B
---------------------------------------------------------------------------------------------------------
Allegheny University of Health Sciences Clinical Trial Agreement B
---------------------------------------------------------------------------------------------------------
Allegheny General Hospital Clinical Trial Agreement B
---------------------------------------------------------------------------------------------------------
Allegheny University of the Health Clinical Trial Agreement Dr. Gravlee - NTL02/04 B
Sciences
---------------------------------------------------------------------------------------------------------
Alton Ochsner Medical Foundation Clinical Trial Agreement NTL02 - New Orleans B
---------------------------------------------------------------------------------------------------------
Altus Biologics Inc. Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
Altus Biologics Inc. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Alving, Barbara, M.D. Consulting Agreement B
---------------------------------------------------------------------------------------------------------
Ameer, Guillermo (MIT) Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
Ammar, Dr. Tameshwar - Mount Sinai Confidentiality Agreement B
Medical Center
---------------------------------------------------------------------------------------------------------
ARD Pharmaceutical Consulting Consulting Agreement B
---------------------------------------------------------------------------------------------------------
ARD Pharmaceutical Consulting Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Astra Merck Inc. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Avecia Ltd. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
B. Braun Melsungen, AG Confidentiality Agreement Melsungen, Germany B
---------------------------------------------------------------------------------------------------------
Baylor College of Medicine Clinical Trial Agreement NTL04 - Houston, TX B
---------------------------------------------------------------------------------------------------------
Ben Venue Service Agreement B
---------------------------------------------------------------------------------------------------------
Ben Venue Laboratories Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Bender & Co. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Berlex Laboratories Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
BioArtificial Gel Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
BioArtificial Gel Techniques Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
BioMarin Pharmaceutical Inc. Confidentiality Agreement B
Non-Disclosure Agreement:
Neutralase NTL04 Interim Analysis Data
---------------------------------------------------------------------------------------------------------
Bio-Rad Laboratories Inc. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Brigham & Women's Hospital Clinical Trial Agreement NTL02 - Boston, MA B
---------------------------------------------------------------------------------------------------------
Cardiac Anesthesia Assoc. Clinical Trial Agreement NTL04 - Towson, MD B
---------------------------------------------------------------------------------------------------------
Cardiopulmonary Research, Science, Clinical Trial Agreement NTL04 and NTL02 - Dallas, TX B
Technology Inst.
---------------------------------------------------------------------------------------------------------
Chicago Assoc. for Research & Education Clinical Trial Agreement NTL03 - Hines, IL B
in Science
---------------------------------------------------------------------------------------------------------
Children's Hospital of Philadelphia Sponsored Research Agreement B
---------------------------------------------------------------------------------------------------------
Chiron Corporation Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Cleveland Clinic Foundation Clinical Trial Agreement NTL04/ and NTL02 - Cleveland, OH B
---------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
Schedule 5.1 (s) - Contracts
----------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
COMPANY TYPE OF AGREEMENT
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
Clinical Investigators Pact Clinical Trial Agreement NTL01 - Springfield, IL B
---------------------------------------------------------------------------------------------------------
Collateral Therapeultics Confidentiality B
---------------------------------------------------------------------------------------------------------
Colorado(University of) Clinical Trial Agreement NTL03 - Denver, CO B
---------------------------------------------------------------------------------------------------------
Cornell University Clinical Trial Agreement NTL02 - New York, NY B
---------------------------------------------------------------------------------------------------------
Cornell University Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
Coromed Confidentiality Agreement B
Sponsored Research Agreement
---------------------------------------------------------------------------------------------------------
Covance Biotechnology Services Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Datacure Associates Professional Service Agreement B
---------------------------------------------------------------------------------------------------------
Definitive Health Services Clinical Trial Agreement NTL04 NTL02 - Milwaukee, WI B
---------------------------------------------------------------------------------------------------------
Definitive Health Services Confidentiality Agreement B
Dr. Merrell
---------------------------------------------------------------------------------------------------------
Definitive Health Services (Thomas Confidentiality Agreement B
Barragry)
---------------------------------------------------------------------------------------------------------
Dompe Farmaceutici S.p.A. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Duke Universitiy Sponsored Research Agreement B
---------------------------------------------------------------------------------------------------------
Electrion Inc., Lawrence Ivan Kruse Consulting Agreement B
---------------------------------------------------------------------------------------------------------
Epstein, Stephen Consulting Agreement B
---------------------------------------------------------------------------------------------------------
ERP Consulting Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Florida West Coast Clinical Research Clinical Trial Agreement NTL03 - Tampa, FL B
Group
---------------------------------------------------------------------------------------------------------
Forest Laboratories Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Fujisawa USA, Inc. 2-way Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Genencor Int. Inc. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Genzyme Corporation Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Gist-Brocades/Bio-Intermediair Inc. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Gold, Phil Neutralase Advisory Committee - Conf. Agreement B
---------------------------------------------------------------------------------------------------------
Gottlieb, Stanley Consulting Agreement B
---------------------------------------------------------------------------------------------------------
Graham Turpie, MD Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Grupo Ferrer Internacional Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Herzchirurgische Klinik u. Poliklinik Clinical Trial Agreement NTL02 - Munchen, Germany B
---------------------------------------------------------------------------------------------------------
Herz-u. Kreislaufzentrum Dresden Clinical Trial Agreement NTL02 - Dresden, Germany B
---------------------------------------------------------------------------------------------------------
Herzzentrum Nordhein-Westfalen Clinical Trial Agreement NTL04 Bad Oeynhausen, Germany B
NTL02
---------------------------------------------------------------------------------------------------------
Howard Hughes Medical Institute Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
Immunochemistry Technologies LLC Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Indiana University Clinical Trial Agreement NTL03 and NTL04 Indianapolis, IN B
---------------------------------------------------------------------------------------------------------
Institut de Cardiologie Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Institut de Cardiologie de Montreal Clinical Trial Agreement NTL03 - Montreal, Quebec B
---------------------------------------------------------------------------------------------------------
Institute for Cancer Research (Dr. Phil Material Transfer Agreement B
Rye)
---------------------------------------------------------------------------------------------------------
Iowa, University of Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
INTELLIgene Expressions Inc. Mutual Non-Disclosure Agreement B
---------------------------------------------------------------------------------------------------------
John P. Robarts Research Institute Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Kentucky Research Foundation (University Clinical Trial Agreement NTL02 - Lexington, KY B
of)
---------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
Schedule 5.1 (s) - Contracts
----------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
COMPANY TYPE OF AGREEMENT
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
Kiel (Universitatsklinikum) Clinical Trial Agreement NTL02 - Kiel, Germany B
---------------------------------------------------------------------------------------------------------
King Pharmaceuticals Inc. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Kreppel, Theresa Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
LAB Bio-Syn Corporation Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Lavee, Jacob MD Confidentiality Agreement B
Chaim Sheba Med. Ctr.
---------------------------------------------------------------------------------------------------------
Legacy Emanuel Hospital & Health Center Clinical Trial Agreement NTL03/04 - Portland, OR B
---------------------------------------------------------------------------------------------------------
Leo Pharmaceutical Products Ltd. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Lindner Center of the Christ Hospital Clinical Trial Agreement NTL02/03/04 - Cincinnati, OH B
---------------------------------------------------------------------------------------------------------
London Clinical Trials Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Long Island Jewish Med.Ctr Clinical Trial Agreement NTL03 - New Hyde Park, NY B
---------------------------------------------------------------------------------------------------------
Lyophilization Technology Professional Service Agreement B
---------------------------------------------------------------------------------------------------------
MCP Hahnemann University Clinical Trial Agreement NTL04 - Philadelphia, PA B
---------------------------------------------------------------------------------------------------------
Medco Research Inc. - See King Confidentiality Agreement vB
---------------------------------------------------------------------------------------------------------
Michigan (Regents of the University Clinical Trial Agreement B
---------------------------------------------------------------------------------------------------------
Michigan (Regents of the University) Sponsored Research Agreeent B
---------------------------------------------------------------------------------------------------------
Microbiological Associates Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
MIMC Service Agreements for NTL02/03/04 B
---------------------------------------------------------------------------------------------------------
MIT Confidentiality Agreement A
License Agreements & Amendments
---------------------------------------------------------------------------------------------------------
Montefiore Medical Center Clinical Trial Agreement NTL02 - Bronx, N B
---------------------------------------------------------------------------------------------------------
Montreal Children's Hospital Research Agreement B
---------------------------------------------------------------------------------------------------------
Montreal Heart Institute Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Morristown Memorial Hosp. Clinical Trial Agreement B
NTL03 - Morristown, NJ
---------------------------------------------------------------------------------------------------------
Mt. Sinai School of Medicine Clinical Trial Agreement NTL01 - New York, NY B
---------------------------------------------------------------------------------------------------------
National Research Council Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
Nexia Biotechnology Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Nissho Corporation Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Novo Nordisk Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Novo Nordisk Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
Ohio State University Clinical Trial Agreement NTL03/04 - Columbus, OH B
---------------------------------------------------------------------------------------------------------
Ohmeda Pharmaceutical Products Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Omega Laboratories Inc. (2 way) Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
OTL Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Ottawa Heart Institute Clinical Trial Agreement NTL03 - Ottawa, Ontario B
---------------------------------------------------------------------------------------------------------
Panorama Research Inc. Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
Pennsylvania State Univesity & Penn Clinical Trial Agreement NTL03 - Hershey, PA B
State Geisinger Clinic
---------------------------------------------------------------------------------------------------------
Pennsylvania(University of) - Dr. David Confidentiality Agreement B
Jobes
---------------------------------------------------------------------------------------------------------
Pentapharm Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
Schedule 5.1 (s) - Contracts
----------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
COMPANY TYPE OF AGREEMENT
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
Pfizer Inc. Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
Pharma Research Corporation Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Phoenix International Life Sciences Inc. Confidentiality Agreement B
Project Agreement
Master Laboratory Service Agreement
---------------------------------------------------------------------------------------------------------
Pinkus, Gloria Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Precision Biologic Inc. Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
Precision Research Inc. Consulting Agreement C
---------------------------------------------------------------------------------------------------------
ProdiGene Inc. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Quality Data Services Professional Service Agreement B
(NTL05 PC1)
---------------------------------------------------------------------------------------------------------
Quincunx Group - Elizabeth Morgenthien Professional Service Agreement B
(NTL05 PC1)
---------------------------------------------------------------------------------------------------------
Quintiles Inc. - Nancy Kohl Confidentiality Agreement B
Paul Stafford
James Mannion
---------------------------------------------------------------------------------------------------------
Rhone-Poulenc Rorer Pharmaceuticals Inc. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Richey Associates Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Rochester (University of) Clinical Trial Agreement NTL03 - Rochester, NY B
---------------------------------------------------------------------------------------------------------
Ross, Phillip N. Consulting Agreement B
---------------------------------------------------------------------------------------------------------
Royal Victoria Hospital Sponsored Research Agreement B
---------------------------------------------------------------------------------------------------------
Rx Trials Inc. Clinical Trial Agreement NTL02/04 - Silver Spring, MD B
---------------------------------------------------------------------------------------------------------
Sanofi Pharmaceuticals Inc. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Schneider, Dr. Joel, Clinical Confidentiality Agreement B
Investigators Pact
---------------------------------------------------------------------------------------------------------
Schwarz Pharma Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Seattle Cardiovascular Res. Clinical Trial Agreement NTL03 - Seattle, WA B
---------------------------------------------------------------------------------------------------------
SEMBIOSYS Genetics Inc. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Servier Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
SmithKline Beecham Pharmaceuticals Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Ste-Justine Hospital Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Swedish Orphan Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Synthelabo Groupe Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Technion University Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
Tektagen Inc. (2-way) Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Teva Pharmaceutical Ind. Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Teva Pharmaceutical Ind. Nondisclosure Agreement - NTL04 Interim Analysis Data B
---------------------------------------------------------------------------------------------------------
Texas Health Center (University of) Clinical Trial Agreement NTL03/04 Houston, TX B
---------------------------------------------------------------------------------------------------------
Thorax-und Kardiovaskularchirurgie Clinical Trial Agreement NTL02 - Bad Nauheim, Germany B
Kerckhoff-Klinik GmbH
---------------------------------------------------------------------------------------------------------
Trillium Group Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
TVG Consulting Agreement B
---------------------------------------------------------------------------------------------------------
UCB S.A. Bioproducts Division Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
University of Texas - Southwestern Material Transfer Agreement B
Medical Center at Dallas
---------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
Schedule 5.1 (s) - Contracts
----------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
COMPANY TYPE OF AGREEMENT
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
VanHalbeek, Herman Material Transfer Agreement B
Material Transfer Agreement
Confidentiality Agreement
---------------------------------------------------------------------------------------------------------
Vascular Therapeutics Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Veteran Affairs Medical Center Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
Wahr, Dr. Joyce Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Wake Forest (University School of Clinical Trial Agreement NTL02 - Winston, Salem, NC B
Medicine)
---------------------------------------------------------------------------------------------------------
Whitaker College of Health Sciences & MIT Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
Yale (University of) Clinical Trial Agreement NTL02 - New Haven, CT B
---------------------------------------------------------------------------------------------------------
Yamaguchi University Material Transfer Agreement B
(Dr. Osao Adachi)
---------------------------------------------------------------------------------------------------------
Young, Neil M.D. Consulting Agreement B
---------------------------------------------------------------------------------------------------------
ZERIA Pharmaceuticals Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Andre Bensadoun Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
CATO Research Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Definitive Health Care NTL 03 B
---------------------------------------------------------------------------------------------------------
Microbial Research Authority B
---------------------------------------------------------------------------------------------------------
John Luber-Albany Medical Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Precision Research Confidentiality Agreement B
---------------------------------------------------------------------------------------------------------
Israel Vlodavsky Material Transfer Agreement B
---------------------------------------------------------------------------------------------------------
ATCC Cell Line Storage Agreement C
---------------------------------------------------------------------------------------------------------
CAMR A
---------------------------------------------------------------------------------------------------------
Institute de Cardiologie Clinical Trial Agreement B
---------------------------------------------------------------------------------------------------------
GMAC Leaseco Vehicle Lease A
---------------------------------------------------------------------------------------------------------
BASF Toll Processing Agreement B
---------------------------------------------------------------------------------------------------------
Medtronic Corp DX Supply Agreement C
---------------------------------------------------------------------------------------------------------
Dade Behring Dx Supply Agreement C
---------------------------------------------------------------------------------------------------------
Haemascope Dx Supply Agreement C
---------------------------------------------------------------------------------------------------------
Nesbitt Burns Financial Advisors C
---------------------------------------------------------------------------------------------------------
PWC Auditor Services C
---------------------------------------------------------------------------------------------------------
OPEX Realty Management Lease- 5485 Pare C
---------------------------------------------------------------------------------------------------------
Videotron ISP C
---------------------------------------------------------------------------------------------------------
CONAMEX IS Services C
---------------------------------------------------------------------------------------------------------
A=Assign at Closing
B=Assign Post-Closing pursuant to Section 13.1
C=Not to be Assigned
------------------------------------------------------------------------------------------------------------------------------------
Schedule 5.1 (t) - Therapeutic Asset Employees
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Name Status Vacation Grade or Title Current Salary Hiring Date
entitlement
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
XXXXXXXXXXXX Permanent XXXXXXX RA2-QC & Analytical $ XXX May 2001
------------------------------------------------------------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXX Permanent XXXXXXX RS2 $ XXX Feb. 1989
------------------------------------------------------------------------------------------------------------------------------------
XXXXXXXXXXXXXX Permanent XXXXXXX Dept. Head $ XXX Aug. 1997
------------------------------------------------------------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXX Permanent XXXXXXX VP Manufacturing $ XXX May 1993
------------------------------------------------------------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXXXX Permanent2 XXXXXXX Admin. Assist. $ XXX Nov. 1996
------------------------------------------------------------------------------------------------------------------------------------
XXXXXXXXXXXX Permanent XXXXXXX President & COO $ XXX May 1988
------------------------------------------------------------------------------------------------------------------------------------
XXXXXXXXXXXXXXX Permanent XXXXXXX T4-Production $ XXX Aug. 1994
------------------------------------------------------------------------------------------------------------------------------------
XXXXXXXXXXXXX Permanent 4 weeks RS3-Discovery $ XXX Nov. 1995
------------------------------------------------------------------------------------------------------------------------------------
1. XXXXXXXXXXX is an American citizen, working in Canada on a permanent work
permit. She is currently benefiting from a Quebec tax holiday for foreign
researchers. This tax holiday is valid until August 4, 2002.
2. XXXXXXXXXXXXXXXXXXXXX works 20 hours per week and is paid hourly.
3. Accrued/Deferred Compensation: None
4. Benefits: See Schedule 5.1 (u)
Schedule 5.1 (u) - IBEX Employee Plans-Summary
--------------------------------------------------------------------------------
Employees receive as an additional benefit the following:
o Contribution of 5% of annual salary up to a maximum of $3,500 per annum, to
be deposited in a self-administered RRSP, as part of a group RRSP;
o 13 paid holidays during the course of the year, three of which are IBEX
"floating days" to be used where company deems the most logical (i.e. to
close between Christmas and New Year`s);
o Flexible hours - core hours being between 9:00 and 4:00, employees are
permitted to work the additional 1 1/2 hours before or after core hours, as
long as total hours are 7.5 per day, for a total of 37.5 weekly.
o Summer Hour program: Employees are permitted to work 37.5 hours spread over
a 4 day period, providing them with the opportunity of leaving no earlier
than 12:00 (noon) on Friday. Summer hours usually take effect as of the
first Monday in June through to the last Friday before Labor Day.
o Vacation Policy: Employees are entitled to a vacation entitlement which is
calculated on education and years of service. Policy CP117 should be
consulted for further details.
o Group Insurance - Attached as Exhibit A hereto
o IBEX Technologies Inc. Stock Option Plan
o IBEX Pharmaceuticals Inc. Stock Option Plan
Schedule 5.1 (x) - Insurance
----------------------------------------------------------------------------------------------------------
Pol. No./ Insurer Coverage Limits Deductible Broker
Renewal Date
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
PRN103972 Cigna Property and 9,596,000 5,000 D.P.
Nov. 1, 2001 fixed charges 5,256,000
Can. & Us sublimits various
----------------------------------------------------------------------------------------------------------
94251404-04 B.I. & I. Machinery 5,000,000 500 D.P.
March 31, 2002 Breakdown 1 day
----------------------------------------------------------------------------------------------------------
CMP 81067337 General Accident Liability 5,000,000 250 D.P.
March 31, 2002
----------------------------------------------------------------------------------------------------------
11000006 Creechurch Clin. Tests & 4,500,000 10,000 D.P.
March 6, 2002 Lloyds products
91167-01 AGF 1,000,000 0
Nov. 11, 99 Germany
----------------------------------------------------------------------------------------------------------
986640 London Gua. Dir& Off. 5,000,000 50,000 D.P.
July 20, 2002
----------------------------------------------------------------------------------------------------------
407191-235 Lloyds Auto 2,000,000 1,000 D.P.
June 17, 2002
----------------------------------------------------------------------------------------------------------
Schedule 5.1 (y) - Taxes
--------------------------------------------------------------------------------
None
Schedule 5.1 (aa) - Environmental Matters
None
Schedule 5.1 (bb) (i) - Royalties
LICENSOR: Microbiological Research Authority CAMR
--------------------------------------------------------------------------------
EFFECTIVE DATE: DECEMBER 22, 1995
SCOPE: Intron-free gene which expresses Phenylalanine Ammonia Lyase
SUMMARY:
o CAMR possesses know-how and property regarding intron-free gene which
expresses Phenylalanine Ammonia Lyase, and provided
IBEX trial quantities of the gene.
o IBEX wants to make use of above to develop for sale by IBEX, therapeutic
and/or diagnostic products for human use re: phenylketonuria
o CAMR grants an exclusive worldwide license to use the property and know-how
to manufacture, develop, sell and distribute Protein Products and
Products in the Field of Use.
ROYALTIES AND MILESTONE PAYMENTS (in British pounds)
o Signature of the Agreement XXXXX
o Submission of application for an Investigative
new drug license in US XXXXXX
o Start of first Phase II clinical trial XXXXXX
o Obtention of Product License in the US XXXXXX
o Obtention of Product License in the UK XXXXXX
o Obtention of Product License in Germany XXXXXX
o Obtention of Product License in France XXXXXX
o Obtention of Product License in Italy XXXXXX
o Royalties on net sales of protein products - at XX
of the XXXXXXX following sale of each product
- at XX for all subsequent years
o Royalties on all other net sales of protein products
and products at XXXXX
o IBEX to pay CAMR royalties not less than the amounts listed
hereinbelow for each year following the date of obtaining the first
Product Approval in a country where any patent has been issued and is
extant as follows:
o Year 1 XXXXXX
o Year 2 XXXXXX
o Year 3 XXXXXX
o Year 4 XXXXXX
o Year 5 XXXXXX
o Each subsequent year: XXXXXX
o IBEX to provide CAMR within 30 days following the end of each calendar
quarter or the date of expiry of this Agreement, statements of net
sales of protein products by country and the royalties due as set out
above for the preceding quarter. All sums payable in pounds sterling.
LICENSOR: MIT
--------------------------------------------------------------------------------
1. License Agreement of May 8, 1984: Worldwide, exclusive rights to listed
patents:
Patents: US 4,341,869 Process for Producing Heparinase
US 4,373,023 Process for Neutralizing Heparin
US 4,396,762 Heparinase Derived Anticoagulants
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
(Note: issued in SE, NL, LU, GB, FR, DE, CH, AT)
A. First Amendment dated April 21, 1988, adding patents:
US 4,341,869 (derived from MIT Case 3386) Process for
Producing Heparinase
US 4,373,023 (derived from MIT Case 3358) Process for
Neutralizing Heparin
US 4,396,762 (derived from MIT Case 3541) Heparinase Derived
Anticoagulants
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
US 4,443,545 (derived from MIT Case 3602) Process for
Producing Heparinase
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
B. Second Amendment dated August 6, 1993: Changed requirements for
maintaining exclusive rights.
2. License Agreement of July 23, 1987
Worldwide, exclusive rights under listed patents:
Patents: MIT Case 3602 / US 4,443,545 (US 4,443,545) Process for
Producing Heparinase
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXX
MIT Case 4330 including all applications and patents based
thereon (US 5,169,772) Large Scale Method for
Purification of High Purity Heparinase
A. First Amendment dated April 21, 1988: Provides for minimum royalty
payment to MIT.
B. Second Amendment dated April 14, 1992, adding patent:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX
C. Third Amendment dated December 7, 1992: Provides for a credit
against future royalties of certain fees and costs.
D. Fourth Amendment dated August 6, 1993: Changes requirements for
maintaining exclusive rights.
E. Fifth Amendment dated August 14, 1995, adding patent case:
MIT Case 5981 including all applications and patents based
thereon:
US 5,389,539 Purification, Composition and Specificity of
Heparinase I, II and III from Flavobacterium heparinum
XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX
Schedule 5.1 (bb) (ii) - Impairment of IP
--------------------------------------------------------------------------------
IBEX IP is not impaired except as described in Trade Mark Status Report dated
August 17, 2001 of Davies Ward Phillips and Vineberg LLP.
Schedule 6.1(f)
BIOMARIN RESIDENCY
BioMarin Pharmaceutical Inc. has its registered office in the City of
Wilmington, County of Newcastle in the State of Delaware, U.S.A.
Its principal office is in the City of Novato, Marin County, California, U.S.A.
BioMarin Pharmaceutical Nova Scotia Company has its registered office in the
City of Halifax, Nova Scotia, Canada.
Schedule 6.1(k)
BIOMARIN FINANCIAL STATEMENTS
See attached:
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements in Stockholder Equity
Consolidated Statements of Cash Flows
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Stockholders of
BioMarin Pharmaceutical Inc.:
We have audited the accompanying consolidated balance sheets of BioMarin
Pharmaceutical Inc. (a Delaware corporation in the development stage) and
subsidiaries as of December 31, 1999 and 2000 and the related consolidated
statements of operations, changes in stockholders' equity, and cash flows for
the years ended December 31, 1998, 1999 and 2000 and the period from March 21,
1997 (inception) to December 31, 2000. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of BioMarin Pharmaceutical Inc.
and subsidiaries as of December 31, 1999 and 2000 and the results of their
operations and their cash flows for the years ended December 31, 1998, 1999 and
2000 and the period from March 21, 1997 (inception) to December 31, 2000, in
conformity with accounting principles generally accepted in the United States.
/s/ ARTHUR ANDERSEN LLP
San Francisco, California,
February 20, 2001
34
BioMarin Pharmaceutical Inc. and Subsidiaries
(a development-stage company)
Consolidated Balance Sheets as of December 31, 1999 and 2000
(In thousands, except for share and per share data)
December 31,
----------------------------------------
1999 2000
----------------------------------------
Assets
Current assets:
Cash and cash equivalents $ 23,413 $ 16,530
Short-term investments 39,573 23,671
Accounts receivable, net 1,186 1,135
Due from BioMarin/Genzyme LLC 1,280 1,799
Inventories 676 436
Prepaid expenses 294 970
----------------------------------------
Total current assets 66,422 44,541
Property and equipment, net 25,093 20,715
Goodwill and other intangible assets, net 11,462 9,862
Investment in BioMarin/Genzyme LLC 421 1,482
Deposits 151 333
----------------------------------------
Total assets $ 103,549 $ 76,933
========================================
Liabilities and Stockholders' Equity
Current liabilities:
Accounts payable $ 3,095 $ 4,747
Accrued liabilities 1,966 2,109
Short-term portion of notes payable 26 27
----------------------------------------
Total current liabilities 5,087 6,883
Long-term liabilities:
Long term portion of notes payable 85 56
----------------------------------------
Total liabilities 5,172 6,939
----------------------------------------
Stockholders' equity:
Common stock, $0.001 par value: 75,000,000 shares
authorized, 34,832,578 and 36,921,966 shares
issued and outstanding at December 31, 1999
and 2000, respectively 35 37
Additional paid-in capital 146,592 153,940
Warrants 128 -
Deferred compensation (2,591) (1,530)
Notes receivable from stockholders (2,638) (1,940)
Deficit accumulated during the development stage (43,149) (80,513)
----------------------------------------
Total stockholders' equity 98,377 69,994
----------------------------------------
Total liabilities and stockholders' equity $ 103,549 $ 76,933
========================================
The accompanying notes are an integral part of these statements.
35
BioMarin Pharmaceutical Inc. and Subsidiaries
(a development-stage company)
Consolidated Statements of Operations for
the Years Ended December 31, 1998, 1999 and 2000 and for
the Period from March 21, 1997 (inception) to December 31, 2000
(In thousands, except for per share data)
Period from
March 21, 1997
December 31, (inception) to
------------------------------------------ December 31,
1998 1999 2000 2000
----------------------------------------------------------
Revenues:
Product sales $ 138 $ 1,401 $ 2,345 $ 3,884
Service revenue 112 85 250 447
BioMarin/Genzyme LLC 837 5,300 9,731 15,868
Other revenues 103 190 - 293
----------------------------------------------------------
Total revenues 1,190 6,976 12,326 20,492
Operating costs and expenses:
Cost of products 49 362 635 1,046
Cost of services 59 102 84 245
Research and development 10,502 27,206 35,794 75,416
Selling, general and administrative 3,532 6,805 8,814 20,065
Carson Street closure - - 4,423 4,423
----------------------------------------------------------
Total operating costs and expenses 14,142 34,475 49,750 101,195
----------------------------------------------------------
Loss from operations (12,952) (27,499) (37,424) (80,703)
Interest income 685 1,832 2,979 5,561
Interest expense - (732) (7) (739)
Equity in loss of BioMarin/Genzyme LLC (47) (1,673) (2,912) (4,632)
-----------------------------------------------------------
Net loss $(12,314) $ (28,072) $ (37,364) $ (80,513)
==========================================================
Net loss per share, basic and diluted $ (0.55) $ (0.94) $ (1.04) $ (3.21)
==========================================================
Weighted average common shares outstanding 22,488 29,944 35,859 25,057
==========================================================
The accompanying notes are an integral part of these statements.
36
BioMarin Pharmaceutical Inc. and Subsidiaries
(a development stage company)
Consolidated Statements of Changes in Stockholders' Equity for the
Years ended December 31, 1998, 1999 and 2000
(In thousands, except per share data)
Deficit
Notes Accumulated
Additional Receivable During Total
Common Stock Paid-in Warrants Deferred from Development SH's
Shares Amount Capital Shares Amount Comp. Stockholders Stage Equity
------ ------ ------- ------ ------ ------ ------------ ------- --------
Balance, January 1, 1998 20,567 $ 21 $ 12,549 802 $ 128 $ (217) $(2,338) $(2,763) $ 7,380
Issuance of common stock on June 30,
1998, for cash, $6.00 per share (net of
issuance costs of $263 including the is-
suance of 31 shares of common stock,
$6.00 per share, for brokerage services)... 599 1 3,327 -- -- -- -- -- 3,328
Issuance of common stock on July 14,
1998,for cash, $6.00 per share (net of
issuance costs of $387, including the is-
suance of 65 shares of common stock,
$6.00 per share, for brokerage services)..1,385 1 7,924 -- -- -- -- -- 7,925
Issuance of common stock on August 3,
1998, for cash, $6.00 per share (net
of issuance costs of $12, including the is-
suance of 2 shares of common stock,
$6.00 per share, for brokerage
services)................................ 31 -- 176 -- -- -- -- -- 176
Issuance of common stock to Genzyme Cor-
poration on September 4, 1998, for
cash, $6.00 per share.................... 1,333 1 7,999 -- -- -- -- -- 8,000
Issuance of common stock to Glyko
Biomedical, Ltd. for the purchase of
Glyko, Inc. on October 7, 1998, for
common shares, $6.00 per share and
the assumption of options of Glyko,
Inc. employees (see Note 1)... 2,259 2 14,859 -- -- -- -- -- 14,861
Exercise of common stock options....... 2 -- 2 -- -- -- -- -- 2
Interest on notes receivable........... -- -- -- -- -- -- (150) -- (150)
Deferred compensation on stock options. -- -- 3,222 -- -- (3,222) -- -- --
Amortization of deferred compensation. -- -- -- -- -- 186 -- -- 186
Net loss............................... -- -- -- -- -- -- -- (12,314) (12,314)
------ ------ ------- ------ ------ ------ ------------ ------- --------
Balance, December 31, 1998............... 26,176 $ 26 $50,058 802 $ 128 $(3,253) $(2,488) $(15,077) $29,394
====== ====== ========= ====== ====== ========= ========= ========= ========
The accompanying notes are an integral part of these statements.
37
BioMarin Pharmaceutical Inc. and Subsidiaries
(a development stage company)
Consolidated Statements of Changes in Stockholders' Equity for the
Years ended December 31, 1998, 1999 and 2000
(In thousands, except per share data)
Deficit
Notes Accumulated
Additional Receivable During Total
Common Stock Paid-in Warrants Deferred from Development SH's
Shares Amount Capital Shares Amount Comp. Stockholders Stage Equity
------ ------ ------- ------ ------ ------ ------------ ------- --------
Balance, January 1, 1999............... 26,176 $ 26 $ 50,058 802 $ 128 $(3,253) $(2,488) $(15,077) $ 29,394
Issuance of common stock on July 23,
1999, in an initial public offering
(IPO) for cash at $13.00 per share
(net of issuance costs of $7) ........ 4,500 4 51,805 -- -- -- -- -- 51,809
Issuance of common stock on July 23,
1999 to Genzyme Corporation in a
private placement concurrent with the
IPO for cash at $13.00 per share..... 769 1 9,999 -- -- -- -- -- 10,000
Issuance of common stock on July 23,
1999 concurrent with the IPO upon con-
version of promissory notes plus accrued
interest of $720 at $10.00 pershare
(net of issuance costs of $1)....... 2,672 3 25,612 -- -- -- -- -- 25,615
Issuance of common stock on August 3,
1999 and August 25, 1999 from the over-
allotment exercise by underwriters at
$13.00 per share (net of issuance costs
of $1)........................ 675 1 8,141 -- -- -- -- -- 8,142
Exercise of common stock options....... 40 -- 148 -- -- -- -- -- 148
Interest on notes receivable from
stockholders.......................... -- -- 150 -- -- -- (150) -- --
Deferred compensation related to stock
options.............................. -- -- 679 -- -- (679) -- -- --
Amortization of deferred compensation. -- -- -- -- -- 1,341 -- -- 1,341
Net loss............................... -- -- -- -- -- -- -- (28,072) (28,072)
------ ------ ------- ------ ------ ------ ------------ ------- --------
Balance, December 31, 1999.............. 34,832 $ 35 $146,592 802 $ 128 $(2,591) $(2,638) $(43,149) $ 98,377
====== ====== ========= ====== ====== ========= ========= ========= ========
The accompanying notes are an integral part of these statements.
38
BioMarin Pharmaceutical Inc. and Subsidiaries
(a development stage company)
Consolidated Statements of Changes in Stockholders' Equity for the
Years ended December 31, 1998, 1999 and 2000
(In thousands, except per share data)
Deficit
Notes Accumulated
Additional Receivable During Total
Common Stock Paid-in Warrants Deferred from Development SH's
Shares Amount Capital Shares Amount Comp. Stockholders Stage Equity
------ ------ ------- ------ ------ ------ ------------ ------- --------
Balance at December 31, 1999 34,832 $35 $146,592 802 $128 $(2,591) $ (2,638) $(43,149) $98,377
Issuance of common stock on April 30,
2000 pursuant to the Employee Stock
Purchase Plan at $11.05 per share... 18 - 199 - - - - - 199
Issuance of common stock on October 31,
2000 pursuant to the Employee Stock
Purchase Plan at $11.05 per share.... 10 - 115 - - - - - 115
Exercise of common stock options....... 1,301 1 5,674 - - - - - 5,675
Exercise of common stock warrants...... 802 1 929 (802) (128) - - - 802
Common stock surrendered by stockholders
for payment of principal and interest... (41) - (170) - - - 170 - -
Repayment of notes from stockholders...... - - - - - - 804 - 804
Interest on notes receivable.............. - - 276 - - - (276) - -
Amortization of deferred compensation..... - - - - - 1,386 - - 1,386
Deferred compensation related to stock and
option issuances, net of terminations... - - 325 - - (325) - - -
Net loss................................. - - - - - - - (37,364) (37,364)
------ ------ -------- ------ ------ -------- --------- --------- --------
Balance at December 31, 2000 36,922 $ 37 $153,940 - $ - $(1,530) $(1,940) $(80,513) $69,994
====== ====== ========= ====== ====== ========= ========= ========= ========
The accompanying notes are an integral part of these statements.
39
BioMarin Pharmaceutical Inc. and Subsidiaries
(a development-stage company)
Consolidated Statements of Cash Flows
the Years Ended December 31, 1998, 1999 and 2000 and for
the Period from March 21, 1997 (inception) to December 31, 2000
(In thousands)
Period from March 21,
December 31, 1997 (inception) to
-------------------------------------------- December 31,
1998 1999 2000 2000
------------------------------------------------------------------
Cash flows from operating activities:
Net loss $ (12,314) $ (28,072) $ (37,364) $ (80,513)
Adjustments to reconcile net loss to net
cash used in operating activities:
Depreciation 308 4,074 4,347 8,734
Amortization of deferred compensation 185 1,341 1,386 2,912
Amortization of goodwill 271 1,143 1,600 3,014
Compensation in the form of common stock
and common stock options - - - 18
Loss from BioMarin/Genzyme LLC 47 6,973 12,635 19,655
Write-off of in-process technology 2,625 - - 2,625
Carson Street closure - - 3,791 3,791
Changes in operating assets and liabilities:
Accounts receivable, net (148) (899) 51 (996)
Due from Glyko Biomedical, Ltd. (34) (25) - (138)
Due from BioMarin/Genzyme LLC (419) (861) (519) (1,799)
Inventories (72) (5) 240 163
Prepaid expenses (137) 383 (676) (969)
Deposits (79) (72) (182) (333)
Accounts payable 1,172 1,754 1,652 4,746
Accrued liabilities 597 1,326 143 2,109
Due to Glyko, Inc. (61) - - -
------------------------------------------------------------------
Net cash used in operating activities (8,059) (12,940) (12,896) (36,981)
------------------------------------------------------------------
Cash flows from investing activities:
Purchase of property and equipment (6,385) (22,944) (3,760) (33,239)
Purchase of Biochemical Research Reagent
Division of Oxford Glycosciences - (1,500) - (1,500)
Investment in BioMarin/Genzyme LLC (732) (6,709) (13,696) (21,137)
(Purchase) sale of short-term investments (1,075) (37,597) 15,902 (23,671)
------------------------------------------------------------------
Net cash used in investing activities (8,192) (68,750) (1,554) (79,547)
------------------------------------------------------------------
Cash flows from financing activities:
Proceeds from note payable 134 - - 134
Proceeds from issuance of convertible notes
payable - 25,615 - 25,615
Proceeds from exercise of common
stock options and warrants - 148 6,477 6,625
Repayment of equipment loan - (24) (28) (52)
Repayment of notes from stockholders - - 804 804
Issuance of commons stock for ESPP - - 314 314
Proceeds from sale of common stock, net of
issuance costs 19,692 69,951 - 98,926
Other (150) - - 692
------------------------------------------------------------------
Net cash provided by financing activities 19,676 95,690 7,567 133,058
------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents 3,425 14,000 (6,883) 16,530
Cash and cash equivalents:
Beginning of period 5,988 9,413 23,413 -
------------------------------------------------------------------
End of period $ 9,413 $ 23,413 $ 16,530 $ 16,530
==================================================================
The accompanying notes are an integral part of these statements.
40
BioMarin Pharmaceutical Inc. and Subsidiaries
(a development-stage company)
Notes to Consolidated Financial Statements
1. NATURE OF OPERATIONS AND BUSINESS RISKS:
BioMarin Pharmaceutical Inc. (the Company) is a biopharmaceutical company
specializing in the development of enzyme therapies for debilitating
life-threatening chronic genetic diseases and other diseases and conditions.
Since inception, the Company has devoted substantially all of its efforts to
research and development activities, including preclinical studies and clinical
trials, the establishment of laboratory, clinical and commercial scale
manufacturing facilities, clinical manufacturing, and related administrative
activities.
The Company was incorporated on October 25, 1996 in the state of Delaware and
first began business on March 21, 1997 (inception) as a wholly-owned subsidiary
of Glyko Biomedical Ltd. (GBL). Subsequently, BioMarin has issued stock to
outside investors in a series of transactions, resulting in GBL's ownership of
BioMarin's outstanding common stock being reduced to 31 percent at December 31,
2000.
On October 7, 1998, the Company acquired Glyko, Inc., a wholly-owned subsidiary
of GBL, in a transaction valued at $14.5 million. The transaction was accounted
for as a purchase and resulted in Glyko, Inc. becoming a wholly-owned subsidiary
of the Company. Glyko, Inc. provides products and services that perform
sophisticated carbohydrate analysis for research institutions and commercial
laboratories.
Through December 31, 2000, the Company had accumulated losses during its
development stage of approximately $80.5 million. Based on current plans,
management expects to incur further losses at least through 2002. Management
believes that the Company's cash and cash equivalents and short-term investment
balances at December 31, 2000 will be sufficient to meet the Company's
obligations at least through 2001.
Business Risks - The Company is exposed to the following risks:
o There can be no assurance that the Company's research and development
efforts will be successfully completed or that its product candidates
will be shown to be safe and effective.
o There can be no assurance that its product candidates will be approved
for marketing by the U.S. Food and Drug Administration (FDA) or any
equivalent foreign government agency or that its product candidates
will be successfully commercialized or achieve any significant degree
of market acceptance.
o Certain of the Company's products and product candidates rely on
proprietary technology and patents owned by certain universities and
other institutions and licensed to BioMarin. These universities also
provide research and development services. Cessation of relationships
with these universities could significantly affect the Company's future
operations.
o In order to grow significantly, the Company must expand its efforts to
develop new products in pharmaceutical applications. The Company will
also need to enhance manufacturing capabilities, to develop marketing
capabilities, and/or enter into collaborative arrangements with third
parties having the capacity for such manufacturing or marketing.
o There can be no assurance that any of the Company's current or future
product candidates will be successfully developed, prove to be
effective in clinical trials, receive required regulatory approvals, be
capable of being produced in commercial quantities at reasonable costs,
gain reasonable reimbursement levels, or be successfully marketed.
In addition, the Company is subject to a number of risks, including the need for
additional financing, dependence on key personnel, small patient population,
patent protection, significant competition from larger organizations, dependence
on corporate partners and collaborators, and expected restrictions on
reimbursement, as well as other changes in the healthcare industry.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Basis of Presentation--These consolidated financial statements include the
accounts of BioMarin, Glyko, Inc., a wholly-owned subsidiary of BioMarin (since
October 7, 1998), and BioMarin Genetics, Inc., a wholly-owned subsidiary of
BioMarin formed for the purpose of the joint venture discussed in Note 8. All
significant intercompany transactions have been eliminated.
Concentration of Credit Risk--Financial instruments that may potentially subject
the Company to concentration of credit risk consist principally of cash, cash
equivalents, and short-term investments. All cash, cash equivalents, and
short-term investments are placed in financial institutions with strong credit
ratings, which minimizes the risk of loss due to nonpayment. The Company has not
experienced any losses due to credit impairment or other factors related to its
financial instruments.
41
Use of Estimates--The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make certain
estimates and assumptions that affect the reported amounts of assets and
liabilities, disclosure of contingent assets and liabilities at the dates of the
financial statements, and the reported amounts of revenues and expenses during
the reporting period. Actual results could differ from those estimates.
Significant estimates made by management include determination of progress to
date of research and development projects in-process, the amortization period of
goodwill and other intangibles, and asset impairment reserves related to certain
leasehold improvements and equipment.
Cash and Cash Equivalents--For the consolidated statements of cash flows, the
Company treats liquid investments with original maturities of less than three
months as cash and cash equivalents.
Short-Term Investments--The Company records its investments as held-to-maturity.
These investments are recorded at cost at December 31, 2000, which approximates
fair market value. These securities are comprised mainly of Federal Agency
investments, including Freddie Macs and Federal Home Loans, and bank
certificates of deposit.
Inventories--Inventories consist of analytic kits and instrument-based systems
held for sale. Inventories are stated at the lower of cost (first-in, first-out
method) or estimated market value. All inventories at December 31, 1999 and 2000
belonged to Glyko, Inc.
Investment in BioMarin/Genzyme LLC and Related Revenue--Under the terms of the
Company's joint venture agreement with Genzyme (the Agreement - see notes 7 and
8), the Company and Genzyme have each agreed to provide 50 percent of the
funding for the joint venture. All research and development, sales and
marketing, and other activities performed by Genzyme and the Company on behalf
of the joint venture are billed to the joint venture at cost. Any profits or
losses of the joint venture are shared equally by the two parties. Losses of the
joint venture ($1.7 million, $14.0 million, $25.3 million and $41.0 million for
the years ended December 31, 1998, 1999 and 2000 and for the period March 21,
1997 (inception) through December 31, 2000, respectively) are allocated in
proportion to the funding provided by each joint venture partner. BioMarin
provided $22.0 million in funding to the joint venture through 2000.
During the years ended December 31, 1999 and 2000, the Company billed $10.6
million and $19.4 million, respectively, to the joint venture under the
Agreement. Of these amounts, $5.3 million and $9.7 million respectively, or 50
percent, was recognized as revenue in accordance with the Company's policy of
recognizing revenue to the extent that research and development costs billed to
the joint venture have been funded by Genzyme. At December 31, 1999 and 2000,
the Company had receivables of $1.3 million and $1.8 million, respectively,
related to these billings.
The Company accounts for its investment in the joint venture using the equity
method. Accordingly, the Company recorded a reduction in its investment in the
joint venture of $7.0 and $12.7 million, during the years ended December 31,
1999 and 2000, respectively, representing its 50 percent share of the loss of
the joint venture. The percentage of the research and development costs incurred
by the Company and billed to the joint venture that was funded by the Company
(50 percent, or $5.3 million and $9.7 million for the years ended December 31,
1999 and 2000, respectively) was recorded as a credit to the Company's equity in
the loss of the joint venture.
At December 31, 2000 the summarized assets and liabilities of the joint venture
and its results of operations from inception to December 31, 2000 are as follows
(in thousands):
Assets $ 3,368
=+=====
Liabilities $ 2,890
Net equity 478
-------
$ 3,368
Cumulative net loss $40,971
=======
Research and Development--Research and development expenses include the expenses
associated with contract research and development provided by third parties,
research and development provided in connection with the joint venture including
manufacturing, clinical and regulatory costs, and internal research and
development costs. All research and development costs discussed above are
expensed as incurred.
Property and Equipment--Property and equipment are stated at cost. Depreciation
is computed using the straight-line method. Leasehold improvements are amortized
over the life of the assets or the term of the lease, whichever is shorter.
Significant additions and improvements are capitalized, while repairs and
maintenance are charged to expense as incurred.
As of December 31, 1999 and 2000, property and equipment consisted of the
following (in thousands):
42
December 31,
-------------------------------
Category 1999 2000 Estimated Useful Lives
------------------------------------- ------------------------------- --------------------------------
Computer hardware and software $ 426 $ 678 3 years
Office furniture and equipment 1,017 1,056 5 years
Manufacturing/Laboratory equipment 8,254 9,323 5 years
Leasehold improvements 18,889 16,685 Shorter of life of assets
or lease term
Construction in progress 879 1,048
-------------------------------
29,465 28,790
Less: Accumulated depreciation (4,372) (8,075)
-------------------------------
Total property and equipment, net $ 25,093 $ 20,715
===============================
Depreciation expense for the years ended December 31, 1998, 1999 and 2000 and
for the period March 21, 1997 (inception) to December 31, 2000, was $0.3
million, $4.1 million, $4.3 million and $8.7 million, respectively.
Goodwill and Other Intangible Assets--In connection with the acquisition of
Glyko, Inc., the Company acquired certain intangible assets including developed
technology, customer relationships and goodwill. In this acquisition, the
Company obtained Glyko Inc.'s ongoing business of providing products and
services to research institutions and commercial laboratories. Additionally, the
Company secured ongoing access to Glyko, Inc.'s proprietary technologies which
assist the Company in supporting the manufacturing process testing and clinical
testing for our two lead drug candidates, Aldurazyme for MPS-I and rhASB for
MPS-VI.
The purchase price of $14.5 million was allocated to the net tangible and
intangible assets acquired, based on the relative fair value of these assets. In
connection with this allocation, $2.6 million was expensed as a charge for the
purchase of in-process research and development. Of the $11.7 million designated
as intangible assets (after the write-off of in-process research and
development), $1.2 million was allocated to developed technology and amortized
over six years, $73,000 was allocated to assembled work force and amortized over
seven years, and $10.4 million was allocated to goodwill (customer
relationships, trade name, pure business goodwill) and initially amortized over
twelve years. In performing this allocation, the Company considered, among other
factors, Glyko, Inc.'s technology and research and development projects
in-process at the date of acquisition. With regard to the in-process research
and development projects, the Company considered factors such as the stage of
development of the technology at the time of acquisition, the importance of each
project to the overall development plan, alternative future uses of the
technology and the projected incremental cash flows from the projects when
completed and any associated risks.
During 2000 the Company changed its estimate of the useful life of this goodwill
from 12 years to 7 years. The effect of this change in estimate was to increase
the Company's net loss by $466,000.
Amortization expense related to the acquisition of Glyko, Inc. was $0.3 million,
$1.1 million and $1.6 million for the period from October 7, 1998 (date of
acquisition) to December 31, 1998, and the years ended December 31, 1999 and
2000, respectively.
In connection with the purchase of the key assets of the Biochemical Research
Reagent Division of Oxford GlycoSciences Plc. (OGS), the Company recorded
goodwill in the amount $891,000 which is being amortized over seven years. Total
amortization expense for the year ended December 31, 2000, was $139,000.
Impairment of Long-Lived Assets--The Company regularly reviews long-lived assets
and identifiable intangibles whenever events or circumstances indicate that the
carrying amount of such assets may not be fully recoverable. The Company
evaluates the recoverability of long-lived assets by measuring the carrying
amount of the assets against the estimated undiscounted future cash flows
associated with them. At the time such evaluations indicate that the future
undiscounted cash flows of certain long-lived assets are not sufficient to
recover the carrying value of such assets, the assets are adjusted to their fair
values (based on discounted cash flows). Except for the Carson Street closure as
discussed in Note 11 no such adjustments have been made during any period
presented.
43
Accrued Liabilities--As of December 31, 1999 and 2000, accrued liabilities
consisted of the following (in thousands):
December 31,
--------------------------
1999 2000
------------- ------------
Vacation $ 286 $ 411
Construction in progress 882 225
Carson Street - 348
Other 798 1,125
------------- ------------
Total $ 1,966 $ 2,109
============= ============
Revenue Recognition--The Company recognizes Glyko, Inc.'s product revenues and
related cost of sales upon shipment of products. Glyko, Inc.'s service revenues
are recognized upon completion of services as evidenced by the transmission of
reports to customers. Other Glyko, Inc. revenues, principally licensing,
distribution and development fees, are recognized upon satisfaction of
contractual obligations such as 1) execution of contract; 2) certain milestones;
and 3) certain anniversary dates from the effective date of the contract.
Revenue from the joint venture is recognized to the extent that research and
development costs billed by the Company have been funded by Genzyme.
Net Income (Loss) per Share--Basic net income (loss) per share is calculated by
dividing net income (loss) by the weighted average common shares outstanding
during the period. Diluted net income per share is calculated by dividing net
income by the weighted average common shares outstanding and potential common
shares during the period. Potential common shares include dilutive shares
issuable upon the exercise of outstanding common stock options, warrants, and
contingent issuances of common stock. For periods in which the Company has
losses (all periods presented), such potential common shares are excluded from
the computation of diluted net loss per share, as their effect is antidilutive.
Potentially dilutive securities include (in thousands):
December 31,
----------------------------------------
1998 1999 2000
----------------------------------------
Options to purchase common stock 2,801 5,450 5,539
Warrants to purchase common stock 802 802 -
----------------------------------------
3,603 6,252 5,539
========================================
Segment Reporting--For the year ended December 31, 1998, the Company adopted the
provisions of SFAS No. 131, "Disclosures about Segments of an Enterprise and
Related Information." The Company operates two segments. The Analytic and
Diagnostic segment represents the operations of Glyko, Inc. which involve the
manufacture and sale of analytic and diagnostic products. The Pharmaceutical
segment represents the research and development activities related to the
development and commercialization of carbohydrate enzyme therapeutics.
Management of the Company has concluded that the operations of the Analytic and
Diagnostic segment are, and will continue to be, immaterial with respect to the
Company's overall activities and, thus, disclosure of segment information is not
required.
New Accounting Standards--In June 1998, the FASB issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." SFAS No. 133 is
not expected to have a material impact on the Company's consolidated financial
position or results of operations.
In December 1999, the Securities and Exchange Commission issued Staff Accounting
Bulletin No. 101 ("SAB 101"), "Revenue Recognition in Financial Statements." SAB
101 provides guidance on applying generally accepted accounting principles to
revenue recognition issues in financial statements. The Company adopted SAB 101
as required in the first quarter of 2000 and such adoption has not had a
material effect on the Company's consolidated financial position or results of
operations.
3. STOCKHOLDERS' EQUITY:
Common Stock and Warrants - As disclosed in the accompanying consolidated
statements of changes in stockholders' equity, the Company closed a number of
private placements in 1997 and 1998. In connection with these placements, an
entity with which the former chief executive officer and chairman of the board
is affiliated (see Note 7) was issued a total of 899,500 shares (valued at $1.4
million) and warrants (valued at $0.1 million) to purchase an additional 801,500
shares of common stock at an exercise price of $1 per share. These issuances
were made for brokerage services rendered in connection with these placements
and were accounted for as a cost of raising capital. The warrants were exercised
in October 2000.
44
Notes Receivable from Stockholders--Notes receivable from stockholders relate to
2.5 million shares of common stock issued in October 1997 to three executive
officers under the terms of the Founder's Stock Purchase Agreement (the
Agreement). These notes bear interest at 6 percent per annum, and are due on
March 31, 2001, or on the date of the employee's termination, whichever is
earlier. The notes are secured by the underlying stock and are with full
recourse. Interest was imputed at nine percent, resulting in an interest
discount and related deferred compensation of $200,000, which is being amortized
over the life of the notes. In the event that their employment is terminated by
the Company, the Company has the obligation, if requested by the officer, to
repurchase any or all of the shares issued under the Agreement at the lower of
the original purchase price or the current market value of the shares. In the
event one of these officers ceases to be an employee, the Company has the right,
but not the obligation, to repurchase the unvested portion of the shares at
their original purchase price. Pursuant to the terms of the Agreement, 50% of
the shares vest after one year from the date of employment, with the remainder
vesting at a rate of 1/24th per month thereafter. Upon the former President's
resignation from the Company in July 2000, the Company repurchased 33,334 shares
at his original purchase price and concurrently reduced his promissory note to
the Company for the same amount. In August 2000, the former President paid the
balance of his promissory note plus accrued interest to the Company. During
October 2000 the Company's Chief Executive Officer resigned. His promissory
note, plus accrued interest, is due in full on March 31, 2001.
Deferred Compensation--In connection with certain stock option and stock grants
during the years ended December 31, 1998, 1999 and 2000, the Company recorded
deferred compensation totaling $3.2 million, $0.7 million and $0.3 million,
respectively, which is being amortized over the estimated service periods of the
grantees. Amortization expense recognized during the years ended December 31,
1998, 1999 and 2000, was $0.2 million, $1.3 million and $1.4 million,
respectively.
4. INCOME TAXES:
The Company utilizes the asset and liability method of accounting for income
taxes. Under the asset and liability method, deferred taxes are determined based
on the difference between the financial statement and tax bases of assets and
liabilities using enacted tax rates in effect in the years in which the
differences are expected to reverse.
The Company's primary temporary differences relate to items expensed for
financial reporting purposes but not currently deductible for income tax
purposes, consisting primarily of depreciable lives for property and equipment.
As of December 31, 2000, net operating loss carryforwards are approximately
$74.9 million and $66.1 million for federal and California income tax purposes,
respectively. These net operating loss carryforwards, including net operating
losses of $12.6 million and $2.9 million for federal and California purposes,
respectively, related to Glyko, Inc. These federal and state carryforwards
expire beginning in the year 2011 and 2004, respectively.
The Company also has research and development credits available to reduce future
federal and California income taxes, if any, of approximately $2.8 million and
$2.8 million, respectively, at December 31, 2000. These credits include credits
related to Glyko, Inc. of approximately $0.6 million and $0.3 million for
federal and California purposes, respectively. These federal and state
carryforwards expire beginning in 2012 and 2013, respectively.
The Company also has orphan drug credits available to reduce future federal
income taxes, if any, of approximately $7.3 million at December 31, 2000.
The net operating loss carryforwards and research and development credits
related to Glyko, Inc. as of October 7, 1998, can only be utilized to offset
future taxable income and tax, respectively, if any, of Glyko, Inc. In addition,
the Tax Reform Act of 1986 contains provisions that may limit the net operating
loss carryforwards and research and development credits available to be used in
any given year should certain events occur, including sale of equity securities
and other changes in ownership. The acquisition of Glyko, Inc. and the related
issuance of stock represented a change of ownership under these provisions.
There can be no assurance that the Company will be able to utilize net operating
loss carryforwards and credits before expiration.
Deferred income taxes are recorded to reflect the tax consequences on future
years of differences between the tax basis of assets and liabilities and their
financial reporting amounts at each period-end. The Company has a cumulative net
operating loss carryforward since inception, resulting in net deferred tax
assets. A valuation allowance is placed on the net deferred tax assets to reduce
them to an assumed net realizable value of zero.
5. STOCK OPTION PLANS:
1997 Stock Plan--In November 1997, the Board adopted, and in April 1998, the
stockholders approved, the 1997 Stock Plan (the 1997 Plan), which provided for
the reservation of a total of 3,000,000 shares of common stock for issuance
under the 1997 Plan. In December 1998, the Board adopted, and in January 1999,
the stockholders approved, an amendment to the 1997 Plan to increase the number
45
of shares reserved for issuance under it to an aggregate of 5,000,000 and to add
an "evergreen provision" providing for an annual increase in the number of
shares which may be optioned or sold under the 1997 Plan without need for
additional Board or stockholder action to approve such increase (which increase
shall be the lesser of 4 percent of the then-outstanding capital stock,
2,000,000 shares, or a lower amount set by the Board). As of December 31, 2000,
the number of shares reserved for issuance was an aggregate of 7,695,572 under
the 1997 Plan. The 1997 Plan provides for the grant of stock options and the
issuance of common stock by the Company to its employees, officers, directors,
and consultants.
1998 Director Option Plan--The 1998 Director Option Plan (the Director Plan) was
adopted by the Board in December 1998 and approved by the stockholders in
January 1999. The Director Plan provides for the grant of nonstatutory stock
options to non-employee directors. A total of 200,000 shares of the Company's
common stock, plus an annual increase equal to the number of shares needed to
restore the maximum aggregate number of shares available for sale under the
Director Plan or the lesser of 0.5 percent of the outstanding capital stock,
200,000 shares, or a lesser amount set by the Board, have been reserved for
issuance under the Director Plan. As of December 31, 2000, options to purchase
165,000 shares were granted under the Director Plan and options to purchase
400,000 shares were authorized under the Director Plan.
Options currently outstanding under the Company's 1997 Stock Option Plan and
1998 Director Plan (the Plans) generally have vesting schedules of up to four
years and options terminate after five to ten years or 90 days after termination
of employment or contract.
The Company accounts for option grants in accordance with APB 25. Had
compensation cost for option grants to employees under the Plans been determined
consistent with the fair value provisions of SFAS No. 123, the effect on the
Company's net loss would have been as follows (in thousands, except for per
share data):
Period from
March 21, 1997
Years ended December 31, (Inception)
--------------------------------------------------------------------- to December 31,
1998 1999 2000 2000
----------------------- -------------------- -------------------- -----------------------------
Net loss as reported $ (12,314) $ (28,072) $ (37,364) $ (80,513)
Pro forma effect of
SFAS No. 123 (183) (1,074) (5,412) (6,669)
---------------------- -------------------- -------------------- -----------------------------
Pro forma net loss $ (12,497) $ (29,146) $ (42,776) $ (87,182)
====================== ==================== ==================== =============================
Net loss per common
share as reported $ (0.55) $ (0.94) $ (1.04) $ (3.21)
====================== ==================== ==================== =============================
Pro forma loss per
common share $ (0.56) $ (0.97) $ (1.19) $ (3.48)
====================== ==================== ==================== =============================
A summary of the status of the Company's Plans is as follows:
Weighted
Average Exercisable Weighted Average
Exercise at End of Fair Value of
Option Shares Price Year Options Granted
------------------------------ ------------- -------------------
Outstanding at March 21, 1997
Granted 297,000 $1.00 $0.22
Exercised - -
Canceled - -
----------------
Outstanding at December 31, 1997 297,000 1.00 232,000
=============
Granted 2,507,660 4.18 $2.40
Exercised (1,973) 1.00
Canceled (1,447) 1.00
----------------
Outstanding at December 31, 1998 2,801,240 3.85 761,609
=============
$8.80
Granted 2,877,430 11.35
Exercised (40,148) 3.69
Canceled (188,536) 9.28
----------------
Outstanding at December 31, 1999 5,449,986 7.59 1,922,041
=============
Granted 1,881,310 15.83 $13.27
Exercised (1,300,532) 4.36
Canceled (491,506) 11.70
----------------
Outstanding at December 31, 2000 5,539,258 10.92 2,067,302
=============
45
There were 900,510 and 1,048,661 options available for grant under the Plans at
December 31, 1999 and 2000, respectively.
As of December 31, 2000, the 5,539,258 options outstanding consisted of the
following:
Options Outstanding Options Exercisable
-------------------------------------------------------------------------------------- -------------------------------------------
Range of Exercise Number of Options Weighted Average Weighted Average Number of Options Weighted Average
Prices Outstanding Contractual Life Exercise Price Exercisable Exercise Price
-------------------------------------------------------------------------------------- -------------------------------------------
$0.00 to $3.50 266,939 1.8 $1.03 254,654 $ 1.03
$3.51 to $7.00 1,930,998 4.8 $5.38 1,073,652 $ 5.23
$7.01 to $10.50 175,900 8.9 $9.45 13,446 $ 8.50
$10.51 to $14.00 1,774,658 6.6 $12.78 431,597 $12.86
$14.01 to $17.50 781,556 5.5 $15.82 199,654 $15.79
$17.51 to $21.00 330,749 7.9 $19.46 39,407 $19.65
$21.01 to $24.50 166,000 9.0 $21.95 28,124 $21.95
$24.51 to $28.00 96,000 4.9 $25.88 21,873 $25.92
$28.01 to $31.50 15,000 4.2 $31.25 3,437 $31.25
$31.51 to $35.00 1,458 0.1 $35.00 1,458 $35.00
--------------- ------------------
5,539,258 2,067,302
=============== ==================
The fair value of each option grant in 1997, 1998 and through July 22, 1999 is
estimated on the date of grant using the Black-Scholes option pricing model with
the following assumptions: risk-free interest rates ranging from 4.6 to 5.7
percent; expected dividend yield of 0 percent; expected life of four years for
the Plan's options; and expected volatility of 0 percent.
The fair value of each option grant from July 22, 1999 through December 31, 1999
is estimated on the date of grant using the Black-Scholes option pricing model
with the following assumptions: risk-free interest rates ranging from 5.8 to 6.1
percent; expected dividend yield of 0 percent; expected life of four years for
the Plan's options; and expected volatility of 38 percent.
The fair value of each option grant in 2000 is estimated on the date of grant
using the Black-Scholes option pricing model with the following assumptions used
for grants : risk-free interest rates ranging from 4.6 to 6.8 percent; expected
dividend yield of 0 percent; expected life of four years for the Plan's options;
and expected volatility of 105 percent.
6. COMMITMENTS AND CONTINGENCIES:
Lease Commitments--The Company leases office space and research and testing
laboratory space in various facilities under operating agreements expiring at
various dates through 2010. Future minimum lease payments for the years ended
December 31 are as follows (in thousands):
2001................. $ 1,888
2002.................. 1,754
2003.................. 1,627
2004................. 1,563
2005.................. 1,563
Thereafter........... 6,953
---------
Total..... $ 15,348
=========
Rent expense for the years ended December 31, 1998, 1999 and 2000, and for the
period from March 21, 1997 (inception), to December 31, 2000, was $0.4 million,
$1.1 million, $1.5 million and $3.0 million, respectively.
Research and Development Funding and Technology Licenses--The Company uses
experts and laboratories at universities and other institutions to perform
research and development activities. Funding commitments to these institutions
for the year ended December 31 are as follows (in thousands):
2001.................. 504
2002.................. 100
2003.................. 100
2004.................. 100
2005.................. 100
------
Total..... $ 904
======
The Company has also licensed technology from certain institutions, for which it
is required to pay a royalty upon future sales, subject to certain annual
minimums.
46
Product Liability and Lack of Insurance--The Company is subject to the risk of
exposure to product liability claims in the event that the use of Aldurazyme or
rhASB results in adverse effects during testing or commercial sale. The
BioMarin/Genzyme LLC and the Company do carry product liability insurance to
cover the clinical trials of Aldurazyme and rhASB, respectively. There can be no
assurance that the Company will be able to obtain product liability insurance
coverage at economically reasonable rates or that such insurance will provide
adequate coverage against all possible claims.
7. RELATED-PARTY TRANSACTIONS:
The Company had contractual agreements for office space and certain
administrative, research, and development functions with Glyko, Inc. prior to
the acquisition date of October 7, 1998. BioMarin reimburses Glyko, Inc. for
rent, salaries and related benefits, and other administrative costs. Glyko, Inc.
also reimburses BioMarin for salaries and related benefits.
Reimbursement of expenses (in thousands):
Paid from Paid from
Glyko, Inc. to BioMarin to
BioMarin Glyko, Inc. Net, to Glyko, Inc.
---------------- --------------- ---------------------
Year ended December 31, 1998 $ 75 $ 298 $ 223
Year ended December 31, 1999 68 335 267
Year ended December 31, 2000 - 155 155
March 21, 1997 (inception) to December 31, 2000 276 1,162 886
During 1997 801,500 warrants were issued to an entity with which the former
Chief Executive Officer and Chairman of the Board is affiliated (see Note 3).
Since October 8, 1998, GBL has agreed to pay the Company a monthly management
fee for its services to GBL primarily relating to management, accounting,
finance and government reporting. The Company had accrued receivables relating
to these services for GBL of $37,500 and $8,765 for the years ended December 31,
1999 and 2000, respectively.
On April 13, 1999, the Company entered into a convertible note financing
agreement in the amount of $26.0 million. Of this amount GBL purchased $4.3
million worth of such notes and LaMont Asset Management SA (LAM) purchased $9.7
million. A director of the Company is also the chairman of LAM. The Company also
entered into an agency agreement with LAM pursuant to which the Company agreed
to pay LAM a five percent cash commission on sales to certain note purchasers.
On July 23, 1999, concurrent with the Company's IPO, the Company's convertible
notes payable (including accrued interest) were converted into 2,672,020 shares
of the Company's common stock at $10 per share. GBL's $4.3 million convertible
note plus interest was converted to 441,911 shares and LAM's $9.7 million
convertible note plus interest was converted to 996,869 shares.
Due to the terms of the collaborative agreement with Genzyme outlined in Note 8,
Genzyme is considered to be a related party. See also Notes 1 and 8 for Genzyme
related-party transactions.
8. COLLABORATIVE AGREEMENTS:
Genzyme--Effective September 4, 1998, the Company entered into an agreement (the
Collaboration Agreement) with Genzyme to establish a joint venture
(BioMarin/Genzyme LLC) for the worldwide development and commercialization of
Aldurazyme to treat MPS-I. In conjunction with the formation of the joint
venture, the Company established a wholly-owned subsidiary, BioMarin Genetics,
Inc. The Company has a 49 percent interest in the joint venture, BioMarin
Genetics, Inc. has a 1 percent interest, and Genzyme has the remaining 50
percent interest.
Under the Collaboration Agreement, the Company and Genzyme are each required to
make capital contributions to the joint venture in an amount equal to 50 percent
of costs and expenses associated with the development and commercialization of
Aldurazyme. The parties also agree to share the profits equally from such
commercialization. In addition, Genzyme purchased 1,333,333 shares of the
Company's common stock at $6 per share in a private placement for proceeds of
$8.0 million and, concurrent with the IPO, purchased an additional 769,230
shares of the Company's common stock at the IPO price for an additional $10.0
million. Genzyme has also agreed to pay the Company $12.1 million in cash upon
FDA approval of the biologics license application for Aldurazyme.
Other Agreements--The Company is engaged in research and development
collaborations with various academic institutions, commercial research groups,
and other entities. The agreements provide for sponsorship of research and
development by the Company and may also provide for exclusive royalty-bearing
intellectual property licenses or rights of first negotiation regarding licenses
to intellectual property development under the collaborations. Typically, these
agreements are terminable for cause by either party upon 90 days written notice.
47
9. COMPENSATION PLANS:
Employment Agreements--The Company has entered into employment agreements with
eight officers of the Company. Seven of these agreements are terminable without
cause by the Company upon six months prior notice, or by the officer upon three
months prior written notice to the Company, with the Company obligated to pay
salary and benefits hereunder until such termination. In the employment
agreement with the Company's Chief Executive Officer the agreement shall be
renewed after three years for one additional three-year period unless either
party gives nine months notice prior to the expiration of the initial three-year
period. The annual salaries committed to under these agreements total
approximately $2 million. In addition, three of the agreements provide for the
payment of an annual cash bonus of up to 100 percent of the base annual salary
of the three officers based upon the Company's market capitalization through
June 30, 2000. Bonuses for the three officers totaled $294,000 in 2000.
401(k) Plan--The Company participates in the BioMarin Retirement Savings Plan.
Most employees (Participants) are eligible to participate following the start of
their employment, on the earlier of the next occurring January 1, April 1, July
1 or October 1. Participants may contribute up to 15 percent of their current
compensation to the 401(k) Plan or an amount up to a statutorily prescribed
annual limit. The Company pays the direct expenses of the 401(k) Plan and
matches 25% of the first 2% contributed to the employee accounts. The Company's
matching contribution vests over four years from employment commencement.
1998 Employee Stock Purchase Plan--In December 1998 the Board adopted, and in
January 1999 the stockholders approved, the 1998 Employee Stock Purchase Plan
(the 1998 Purchase Plan). A total of 250,000 shares of Company common stock has
been reserved for issuance under the 1998 Purchase Plan, plus annual increases
equal to the lesser of 0.5 percent of the outstanding capital stock, 200,000
shares, or a lesser amount set by the Board. As of December 31, 2000, 28,431
shares have been issued under the 1998 Purchase Plan.
10. SUPPLEMENTAL CASH FLOW INFORMATION:
The following non-cash transactions took place in the periods presented (in
thousands):
Period from March
21, 1997
Year Ended December 31, (Inception) to
------------------------------------------------------ December 31,
1998 1999 2000 2000
------------------------------------------------------ --------------------
Common stock issued upon conversion of
convertible notes plus interest $ - $ 25,615 $ - $25,615
Common stock issued in exchange for notes - - - 20,500
Common stock and common stock warrants
issued in exchange for brokerage services 588 - - 1,518
Bridge loan converted to common stock - - - 880
Common stock surrendered by stockholders
for payment of principal and interest - - 170 170
Compensation in the form of common stock
and common stock options - - - 18
11. CARSON STREET CLOSURE
During the first quarter of 2000, the Company decided to close its Carson Street
clinical manufacturing facility. In connection with this decision, the Company
recorded a charge of approximately $4.4 million. The facility was no longer
required for the production of Aldurazyme, the initial purpose of the plant,
after a decision by the BioMarin/Genzyme LLC joint venture to use the Company's
Galli Drive facility for the manufacture of bulk Aldurazyme both for the Phase
III trial and for the commercial launch of Aldurazyme. This decision was based
in part on U.S. Food and Drug Administration guidance to use an improved
production process, which was installed in the Galli Drive facility, for the
clinical trial, the biologics license application submission and for commercial
production. The majority of the Company's technical staff at the Carson Street
facility in Torrance, California transferred to the Galli Drive facility in
Novato, California in May. The charge primarily consisted of impairment reserves
for leasehold improvements and equipment located in the Carson Street facility.
48
12. SUBSEQUENT EVENT
In January 2001, the Company signed an agreement with Acqua Wellington North
American Equities Fund Ltd. (Acqua Wellington) whereby Acqua Wellington will
make an equity investment in the Company of up to $50 million. Subject to
certain conditions, including the market price of BioMarin stock, these funds
will be drawn down, at the Company's option, over the course of the next 20
months from sales of registered common stock to be sold at a small discount to
the market price.
In the initial transaction under this agreement on February 2, 2001, Acqua
Wellington purchased $1 million of the Company's common stock at $9.85 per
share.
13. QUARTERLY CONSOLIDATED FINANCIAL DATA (unaudited)
The Company's quarterly operating results have fluctuated in the past and may
continue to do so in the future as a result of a number of factors, including,
but not limited to, the completion of development projects and variations in
levels of production.
The Company's common stock has been traded on the NASDAQ Stock Market since July
22, 1999. There were 64 common stockholders of record at December 31, 2000. No
dividends were paid for the years ended December 31, 2000 and 1999.
Quarter Ended
-------------------------------------------------------------------
March 31, June 30, September 30, December 31,
2000 (In thousands, except per share data)
Total revenue $ 3,298 $ 3,083 $ 2,807 $ 3,138
Loss from operations (11,965) (7,188) (8,247) (10,024)
Net loss (11,736) (7,086) (8,148) (10,394)
Net loss per share, basic and diluted (0.34) (0.20) (0.23) (0.28)
Common stock price per share:
High $ 38.750 $ 27.750 $ 21.750 $ 17.62
Low 12.750 16.750 16.375 7.156
Quarter Ended
-------------------------------------------------------------------
March 31, June 30, September 30, December 31,
1999 (In thousands, except per share data)
Total revenue $ 1,104 $ 1,557 $ 1,999 $ 2,315
Loss from operations (4,583) (6,145) (7,732) (9,040)
Net loss (4,609) (6,782) (7,643) (9,038)
Net loss per share, basic and diluted (0.18) (0.26) (0.24) (0.26)
Common stock price per share:
High N/A N/A $ 18.750 $ 17.000
Low N/A N/A 11.625 11.625
49
Schedule 6.1(n)
REGISTRATION EXCEPTIONS
BioMarin has filed all of its Exchange Act reports for the previous 24 months.
Schedule 11.1(a)
----------------
CERTIFICATE
RE: REPRESENTATIONS AND WARRANTIES
TO: IBEX Technologies Inc., IBEX Pharmaceuticals Inc., IBEX Technologies
LLC, IBEX Technologies Corp. and Technologies IBEX R&D Inc.
(collectively, the "IBEX Group")
----------
FROM: BioMarin Pharmaceutical Inc. and BioMarin Pharmaceutical Nova Scotia
Company (collectively, the "BioMarin Group")
--------------
RE: Canadian Asset Purchase Agreement dated as of October 9, 2001 among
the IBEX Group and the BioMarin Group
The members of the BioMarin Group do hereby jointly and severally certify to the
members of the IBEX Group that the representations and warranties of the members
of the BioMarin Group made in the Canadian Asset Purchase Agreement are true,
correct and accurate in all material respects (except where already qualified as
to materiality) on the date hereof with the same force and effect, as if made on
and as of the date hereof.
DATED at Novato, CA as of October 31, 2001.
BIOMARIN PHARMACEUTICAL INC.
By: ___/s/ Raymond W. Anderson____________
Name: _Raymond W. Anderson__________________
Its: __CFO, Secretary, V.P. Finance and
Administraton
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
By: ___/s/ Raymond W. Anderson____________
Name: _Raymond W. Anderson__________________
Its: __CFO, Secretary, V.P. Finance and
Administraton
Schedule 11.1(b)
----------------
CERTIFICATE
RE: CONDITIONS
TO: IBEX Technologies Inc., IBEX Pharmaceuticals Inc., IBEX Technologies
LLC, IBEX Technologies Corp. and Technologies IBEX R&D Inc.
(collectively, the "IBEX Group")
FROM: BioMarin Pharmaceutical Inc. and BioMarin Pharmaceutical Nova Scotia
Company (collectively, the "BioMarin Group")
RE: Canadian Asset Purchase Agreement dated as of October 9, 2001 among
the IBEX Group and the BioMarin Group
The members of the BioMarin Group do hereby jointly and severally certify to the
members of the IBEX Group that all covenants and agreements agreed to be
performed or caused to be performed by each member of the BioMarin Group in the
Canadian Asset Purchase Agreement on or before the date hereof have been so
performed.
DATED at Novato, CA as of October 31, 2001.
BIOMARIN PHARMACEUTICAL INC.
By: ___/s/ Raymond W. Anderson____________
Name: _Raymond W. Anderson__________________
Its: __CFO, Secretary, V.P. Finance and
Administraton
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
By: ___/s/ Raymond W. Anderson____________
Name: _Raymond W. Anderson__________________
Its: __CFO, Secretary, V.P. Finance and
Administraton
Schedule 11.1 (d) BioMarin Options for Transferred Employees
-------------------------------------------------------------------------------------------------------------------
IBEX Options As At March 28, 2001 BioMarin Options
------------------------------------------------------------------------------------- ---------------------------
Series Optionee Granted Strike Total Factor Options
--------- --------------------------- -------------- ------------- ------------- ---------- -------------
B Broughton, Richard 25-Jul-95 $ 2.65 6,645
G Broughton, Richard 25-Jun-98 $ 2.55 2,414
L Broughton, Richard 4-Oct-00 $ 0.63 9,059
--------- --------------------------- -------------- ------------- ------------- ---------- -------------
Total Broughton, Richard 18,118 0.10 1,812
H Denholm, Elizabeth 25-Jun-98 $ 2.55 3,529
I Denholm, Elizabeth 6-Oct-98 $ 2.55 1,471
L Denholm, Elizabeth 4-Oct-00 $ 0.63 5,000
--------- --------------------------- -------------- ------------- ------------- ---------- -------------
Total Denholm, Elizabeth 10,000 0.10 1,000
B Eggiman, Bernhard 25-Jul-95 $ 2.65 5,756
C Eggiman, Bernhard 11-Dec-96 $ 6.50 4,000
F Eggiman, Bernhard 25-Jun-98 $ 2.55 21,000
L Eggiman, Bernhard 4-Oct-00 $ 0.63 70,756
--------- --------------------------- -------------- ------------- ------------- ---------- -------------
Total Eggiman, Bernhard 101,512 0.10 10,151
D Heft, Robert 10-Dec-97 $ 2.70 150,000
E Heft, Robert 25-Jun-98 $ 2.70 50,000
L Heft, Robert 4-Oct-00 $ 0.63 100,000
--------- --------------------------- -------------- ------------- ------------- ---------- -------------
Total Heft, Robert 300,000 0.10 30,000
G Kishfy, Donna 25-Jun-98 $ 2.70 571
J Kishfy, Donna 6-Oct-98 $ 2.70 451
L Kishfy, Donna 4-Oct-00 $ 0.63 1,022
--------- --------------------------- -------------- ------------- ------------- ---------- -------------
Total Kishfy, Donna 2,044 0.10 204
G Pednault, Marc 25-Jun-98 $ 2.55 1,160
L Pednault, Marc 4-Oct-00 $ 0.10 1,160
--------- --------------------------- -------------- ------------- ------------- ---------- -------------
Total Pednault, Marc 2,320 0.10 232
G Shao, Zhongqi 25-Jun-98 $ 2.55 2,307
L Shao, Zhongqi 4-Oct-00 $ 0.63 2,307
--------- --------------------------- -------------- ------------- ------------- ---------- -------------
Total Shao, Zhongqi 4,614 0.10 461
---------------------------------------------------------------------- ------------- ---------- -------------
Grand Total 438,608 0.10 43,861
Schedule 11.1(e)
ASSUMPTION AGREEMENT
Dated October 9, 2001
This Assumption Agreement (this "Agreement") is made pursuant
to that certain Canadian Asset Purchase Agreement (the "Purchase Agreement")
dated as of October 9, 2001, by and among BIOMARIN PHARMACEUTICAL INC., a
Delaware corporation ("BioMarin"), BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY,
a corporation incorporated pursuant to the laws of the Province of Nova Scotia
("BioMarin NS") (BioMarin and BioMarin NS are collectively referred to as the
"BioMarin Group"), on the one hand, and IBEX TECHNOLOGIES INC., a Canadian
corporation ("IBEX"), IBEX PHARMACEUTICALS INC., a Canadian corporation ("IBEX
Pharma"), IBEX TECHNOLOGIES LLC, a Delaware limited liability company ("IBEX
LLC"), IBEX TECHNOLOGIES CORP., a Delaware corporation ("IBEX Corp.") and
TECHNOLOGIES IBEX R & D INC., a corporation incorporated pursuant to the laws of
the Province of Quebec ("IBEX R & D") (IBEX, IBEX Pharma and IBEX R & D are
collectively referred to as the "Canadian Vendors"), on the other hand. Any
capitalized term used in this Assignment but not defined herein shall have the
meaning assigned to such term in the Purchase Agreement.
In consideration of the sale, pursuant to the Purchase Agreement, by
the Canadian Vendors to BioMarin NS of the Canadian Assets, the BioMarin Group
hereby assumes the IBEX Pharma Assumed Canadian Liabilities pursuant to Section
12.1(f) of the Purchase Agreement. This Agreement is made and accepted subject
to the provisions of the Purchase Agreement.
For the consideration aforesaid, the BioMarin Group has covenanted, and
by this Agreement does covenant, with the Vendors that the BioMarin Group and
its successors and assigns, will execute and deliver such other documents,
certificates, agreements and other writings and to take such other actions as
may be necessary or desirable in order to consummate or implement expeditiously
the assumption of the Assumed Canadian Liabilities.
No Party may assign this Agreement or any part hereof without the prior
written consent of the other Parties which may not be unreasonably withheld.
Subject to the foregoing, this Agreement shall enure to the benefit of and be
binding upon the Parties and their respective successors and permitted assigns,
but no other Person.
This Agreement shall be governed by the laws of the Province of Quebec
and the federal laws of Canada applicable therein and the Parties hereby
irrevocably attorn to the Courts of the Province of Quebec, sitting in the
district of Montreal.
IN WITNESS WHEREOF, this Assumption Agreement has been duly
executed and delivered by the duly authorized of officers of the BioMarin Group
and the Vendors as of the date first written above.
THE BIOMARIN GROUP: VENDORS:
BIOMARIN PHARMACEUTICAL INC IBEX TECHNOLOGIES INC.
By: /s/Raymond W. Anderson By: /s/ Paul Baehr
Name: Raymond W. Anderson Name: Paul Baehr
Title: Secretary Title: CEO
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY IBEX PHARMACEUTICALS INC.
By: /s/Raymond W. Anderson By: /s/ Paul Baehr
Name: Raymond W. Anderson Name: Paul Baehr
Title: Secretary Title: CEO
TECHNOLOGIES IBEX R & D INC.
By: /s/ Paul Baehr
Name: Paul Baehr
Title: President
IBEX TECHNOLOGIES LLC
By: /s/ Paul Baehr
Name: Paul Baehr
Title: President
IBEX TECHNOLOGIES CORP.
By: /s/ Paul Baehr
Name: Paul Baehr
Title: President
Schedule 11.1(f) - U.S. Opinion
October 31, 2001 32348.00003
IBEX Technologies Inc. IBEX Pharmaceuticals Inc.
5485 Pare 5485 Pare
Montreal, Quebec H4P 1P7 Montreal, Quebec H4P 1P7
IBEX Technologies LLC IBEX Technologies Corp.
5485 Pare 5485 Pare
Montreal, Quebec H4P 1P7 Montreal, Quebec H4P 1P7
Technologies IBEX R & D Inc.
5485 Pare
Montreal, Quebec H4P 1P7
Ladies and Gentlemen:
We have acted as special counsel to BioMarin Pharmaceutical Inc., a Delaware
corporation ("Biomarin") and BioMarin Enzymes Inc., a Delaware corporation
("BioMarin Sub" and, together with BioMarin, the "BioMarin U.S. Group"), in
connection with that certain United States Purchase Agreement ("U.S. Agreement")
dated as of October 9, 2001, by and among BioMarin and BioMarin Sub, on the one
hand, and IBEX Technologies Inc., a Canadian corporation ("IBEX"), IBEX
Pharmaceuticals Inc., a Canadian corporation ("IBEX Pharma"), IBEX Technologies
LLC, a Delaware limited liability company ("IBEX LLC"), IBEX Technologies Corp.,
a Delaware corporation ("IBEX Corp.") and Technologies IBEX R & D Inc., a
corporation incorporated pursuant to the laws of the Province of Quebec ("IBEX R
& D," together with IBEX, IBEX Pharma, IBEX LLC and IBEX Corp., the "IBEX
Group") on the other hand, and in connection with that certain Canadian Purchase
Agreement ("Canadian Agreement" and, together with the U.S. Agreement, the
"Purchase Agreements") dated as of October 9, 2001 by and among BioMarin and
BioMarin Pharmaceutical Nova Scotia Company, a corporation incorporated pursuant
to the laws of the Province of Nova Scotia ("BioMarin NS"), on the one hand, and
the members of the IBEX Group, on the other hand. The members of the BioMarin
U.S. Group, BioMarin NS, and the members of the IBEX Group shall be referred to
herein collectively from time to time as the "Parties." We have been asked to
provide this opinion letter in accordance with the requirements set forth in
Section 11.1(e) of the U.S. Agreement and Section 11.1(f) of the Canadian
Agreement. Capitalized terms used but not defined in this letter shall have the
meanings ascribed to such terms in the applicable Purchase Agreement.
October 31, 2001
Page 2
In connection with the foregoing, we have examined (i) the U.S. Agreement, (ii)
the Canadian Agreement, (iii) a License Agreement dated as of October 31, 2001,
among the members of the BioMarin U.S. Group and BioMarin NS, IBEX and IBEX
Pharma (the "License Agreement"), (iv) a Services, Equipment and Space Sharing
Agreement dated as of October 31, 2001, among the members of the IBEX Group,
BioMarin and BioMarin NS (the "Services Agreement"), (v) the certificate of
incorporation of each of BioMarin and BioMarin Sub, as amended through the date
hereof, (vi) the bylaws of each of BioMarin and BioMarin Sub, each of which has
been certified to us by an officer of each of BioMarin and BioMarin Sub, (vii)
certificates of officers of each of BioMarin and BioMarin Sub, (viii)
certificates of public officials as we have deemed necessary or advisable, and
(ix) such other documents, records, certificates and instruments as we have
deemed necessary or advisable in order to render the opinions expressed herein.
In such examination and in rendering our opinion, we have assumed the
authenticity of all original documents and company records submitted to us, the
genuineness of all signatures, the legal capacity of all natural persons, the
conformity to original, executed documents of all copies and photocopies
submitted to us, the due authorization, execution and delivery of all documents
where due authorization, execution and delivery are a prerequisite to the
effectiveness thereof (other than the Documents, as defined below), that there
are no agreements or understandings among the Parties, written or oral and there
is no usage of trade or course of prior dealing among the Parties that would, in
either case, define, supplement, or qualify the terms of any of the U.S.
Agreement, the Canadian Agreement, the License Agreement or the Services
Agreement (collectively, the "Documents"), and that all parties will act in
accordance with and will refrain from taking any action that is forbidden by the
Documents. As to various questions of fact material to this opinion, without
investigation, we have relied upon statements or certificates of officers or
authorized persons of each member of the BioMarin U.S. Group and of public
officials and others, as well as the accuracy of representations and warranties
made by the members of the BioMarin U.S. Group in the Documents, and we assume
compliance on the part of all the Parties with their covenants and agreements
contained therein. We have also assumed that the offer, issuance or sale of
securities under the Purchase Agreements will not be integrated for purposes of
Rule 4350 of the Nasdaq listing requirements with the offer, issuance or sale of
any securities to any investor consummated within the six months preceding the
date hereof.
In expressing the opinion set forth in paragraph 1 below, we have relied
exclusively on the good standing certificates of each of the members of the
BioMarin U.S. Group.
In rendering our opinions set forth in paragraph 7 below, we have not made any
independent investigation of court records to determine whether any action,
suit, arbitration, claim or proceeding has been filed and our opinions are based
solely upon a written certificate provided to us by the Secretary of the
Company.
October 31, 2001
Page 3
As used in this letter, the expression "to our knowledge" or "of which we have
knowledge" or phrases of like import with reference to matters of fact means
that, after an examination of documents made available to us by members of the
BioMarin U.S. Group and after inquiries of officers or authorized persons of the
BioMarin U.S. Group, we have no reason to believe that the opinions expressed
herein are factually incorrect; but beyond that we have made no independent
factual investigation for the purpose of rendering this opinion. Moreover,
"knowledge" of this Firm is limited to the individual attorneys in the Firm who
have represented the BioMarin U.S. Group in connection with the Documents.
Except to the extent expressly set forth herein or as we otherwise believe to be
necessary to our opinion, we have not undertaken any independent investigation
to determine the existence or absence of any fact, and no inference as to our
knowledge of the existence or absence of any fact should be drawn from our
representation of the BioMarin U.S. Group or the rendering of the opinions set
forth below.
On the basis of the foregoing examinations and assumptions contained herein and
in reliance thereon, and on all matters of fact that we deem relevant under the
circumstances, and upon consideration of applicable law, subject to the
qualifications herein stated, we are of the opinion that:
1. Each of BioMarin and BioMarin Sub has been duly formed and is
validly existing as a corporation in good standing under the laws of the State
of Delaware.
2. Each of BioMarin and BioMarin Sub has all requisite corporate
power and authority to enter into the Canadian Agreement and the Services
Agreement, in the case of BioMarin, and the U.S. Agreement and the License
Agreement, the in the case of BioMarin and BioMarin Sub, and to consummate the
transactions contemplated thereby.
3. Each of BioMarin and BioMarin Sub has duly executed each of
the Documents to which it is a party, and each of BioMarin and BioMarin Sub has
taken all necessary corporate action to authorize and approve the execution,
delivery and performance on its part of the Documents executed by it and the
consummation of the transactions contemplated thereby.
4. Each of the Documents constitutes the valid and binding
obligation of BioMarin, enforceable against BioMarin in accordance with its
terms, except as such enforceability may be subject to the effect of (i) any
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer, fraudulent conveyance or other law relating to or affecting the
enforcement of creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). The U.S. Agreement and the License Agreement constitutes the
valid and binding obligation of BioMarin Sub, enforceable against BioMarin Sub
October 31, 2001
Page 4
in accordance with its terms, except as such enforceability may be subject to
the effect of (i) any applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, fraudulent conveyance or other law relating to
or affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5. The BioMarin Canadian Transaction Shares and the BioMarin
Worldwide Shares are duly authorized and, when issued in accordance with the
Purchase Agreements, will be validly issued, fully paid and nonassessable, free
and clear of all liens and restrictions, other than those imposed by Section 7.3
of the U.S. Agreement and Section 7.3 of the Canadian Agreement, the Securities
Act and other applicable securities laws or those created or suffered by any
member of the IBEX Group.
6. The shares of common stock of BioMarin issuable upon exercise
of the BioMarin Options are duly authorized and, when issued in accordance with
the terms of the Certificate and the BioMarin Options, respectively, will be
validly issued, fully paid and nonassessable and free and clear of all liens and
restrictions, other than those created or suffered by any member of the IBEX
Group or those imposed by the Securities Act or other applicable securities laws
or either Purchase Agreement.
7. To our knowledge, and without having performed any due
diligence review with respect to either BioMarin or BioMarin Sub, there is no
legal action, suit, arbitration or other legal proceeding pending against any
member of the BioMarin U.S. Group before any court. To our knowledge, neither
BioMarin nor BioMarin Sub is in default with respect to any order, writ,
judgment, injunction, decree, determination or award of any court or of any
government agency or instrumentality listed on Attachment No. 1 hereto.
The opinions set forth above are subject to the following limitations and
qualifications:
A. Our opinions in paragraphs 1, 2 and 3 are limited to the
Delaware General Corporate Law as it exists on the date hereof. With respect to
our opinions in paragraphs 4, 5, 6, and 7 of our opinions are limited in all
respects to the laws of the State of California and the United States of America
as they exist on the date hereof. Except as set forth in this clause, we do not
opine as to the applicability or effect of the laws of any other jurisdiction
including, without limitation, Canadian law or the laws of Quebec or of any
other Province of Canada, or any other laws of the State of Delaware. Our
opinion on California law does not extend to municipal ordinances or laws of
counties or other political subdivisions of such State.
October 31, 2001
Page 5
B. We call your attention to the fact that each of the U.S.
Agreement and the License Agreement states that it is governed by Delaware law
and each of the Canadian Agreement and the Services Agreement states that it is
governed by the laws of the Province of Quebec, and we are not rendering any
opinion with respect to the laws of the Province of Quebec or the laws of the
State of Delaware, except as expressly described in clause A above with respect
to Delaware General Corporate Law. We have not examined the question of what law
would govern the interpretation, validity or enforcement of the Documents and we
express no opinion thereon. In addition, we express no opinion as to whether
California law would govern the interpretation, validity or enforcement of the
Documents, and we have no reason to believe that California law would govern
such matters.
C. We express no opinion as to any federal or state
securities, antitrust or unfair competition laws or regulations nor as to the
effect of non-compliance by any member of the IBEX Group with any state or
federal laws or regulations that are applicable to the transactions contemplated
by the Documents because of the nature of its businesses or the manner in which
they are conducted.
D. We express no opinion as to the enforceability of any
covenant in any Document obligating BioMarin or BioMarin Sub to indemnify any
person or entity, or having the same or substantially the same effect as
indemnification.
E. We express no opinion as to the enforceability of any
provision in any Document regarding a party's ability or right to collect
attorneys' fees and costs in an action involving such Document.
F. We express no opinion as to any non-competition clause
or covenant in any document or agreement to be delivered under the terms of
either Purchase Agreement.
G. Except as provided herein, we express no opinion with
respect to the enforceability of any agreement, contract or instrument referred
to, identified in or attached (whether as an exhibit, annex, schedule or
otherwise) to any of the Documents.
H. We have assumed there is no misrepresentation, omission
or deceit by any person in connection with the execution, delivery or
performance of the Documents or any of the transactions contemplated thereby.
I. We express no opinion as to the effect of any provision
of any Document which relates to waiving defenses or releasing or indemnifying a
October 31, 2001
Page 6
party against liability for its own wrongful or negligent acts, or where waivers
or indemnifications are limited by applicable law or public policy.
J. We express no opinion with respect to the enforceability
of any provision in any Document to the effect that terms may not be waived or
modified except in writing and advise you that such provisions may be limited
under certain circumstances.
K. We express no opinion as to the validity, effect or
enforceability of any provision of any Document concerning choice of law, choice
of forum or consent to the jurisdiction of courts, venue of actions or means of
service of process.
This opinion letter deals only with the specified legal issues it explicitly
addresses, and no opinion that is not explicitly addressed should be inferred
from any matter stated in this letter.
This opinion is furnished to you by us as special counsel for BioMarin and
BioMarin Sub in connection with the matters described in the first paragraph of
this letter, and is solely for your benefit. This opinion may not be delivered
to or relied upon by any other person or for any other purpose, and may not be
referred to or quoted from, without our express prior written consent. This
opinion is rendered to you as of the date hereof, and we assume no obligation to
update you with respect to the matters set forth herein.
Very truly yours,
October 31, 2001
Page 7
Attachment No. 1
----------------
Courts, Government Agencies and Instrumentalities
Schedule 11.1(f) - U.S. Opinion
October 31, 2001 32348.00003
IBEX Technologies Inc. IBEX Pharmaceuticals Inc.
5485 Pare 5485 Pare
Montreal, Quebec H4P 1P7 Montreal, Quebec H4P 1P7
IBEX Technologies LLC IBEX Technologies Corp.
5485 Pare 5485 Pare
Montreal, Quebec H4P 1P7 Montreal, Quebec H4P 1P7
Technologies IBEX R & D Inc.
5485 Pare
Montreal, Quebec H4P 1P7
Ladies and Gentlemen:
We have acted as special counsel to BioMarin Pharmaceutical Inc., a Delaware
corporation ("Biomarin") and BioMarin Enzymes Inc., a Delaware corporation
("BioMarin Sub" and, together with BioMarin, the "BioMarin U.S. Group"), in
connection with that certain United States Purchase Agreement ("U.S. Agreement")
dated as of October 9, 2001, by and among BioMarin and BioMarin Sub, on the one
hand, and IBEX Technologies Inc., a Canadian corporation ("IBEX"), IBEX
Pharmaceuticals Inc., a Canadian corporation ("IBEX Pharma"), IBEX Technologies
LLC, a Delaware limited liability company ("IBEX LLC"), IBEX Technologies Corp.,
a Delaware corporation ("IBEX Corp.") and Technologies IBEX R & D Inc., a
corporation incorporated pursuant to the laws of the Province of Quebec ("IBEX R
& D," together with IBEX, IBEX Pharma, IBEX LLC and IBEX Corp., the "IBEX
Group") on the other hand, and in connection with that certain Canadian Purchase
Agreement ("Canadian Agreement" and, together with the U.S. Agreement, the
"Purchase Agreements") dated as of October 9, 2001 by and among BioMarin and
BioMarin Pharmaceutical Nova Scotia Company, a corporation incorporated pursuant
to the laws of the Province of Nova Scotia ("BioMarin NS"), on the one hand, and
the members of the IBEX Group, on the other hand. The members of the BioMarin
U.S. Group, BioMarin NS, and the members of the IBEX Group shall be referred to
herein collectively from time to time as the "Parties." We have been asked to
provide this opinion letter in accordance with the requirements set forth in
Section 11.1(e) of the U.S. Agreement and Section 11.1(f) of the Canadian
Agreement. Capitalized terms used but not defined in this letter shall have the
meanings ascribed to such terms in the applicable Purchase Agreement.
October 31, 2001
Page 2
In connection with the foregoing, we have examined (i) the U.S. Agreement, (ii)
the Canadian Agreement, (iii) a License Agreement dated as of October 31, 2001,
among the members of the BioMarin U.S. Group and BioMarin NS, IBEX and IBEX
Pharma (the "License Agreement"), (iv) a Services, Equipment and Space Sharing
Agreement dated as of October 31, 2001, among the members of the IBEX Group,
BioMarin and BioMarin NS (the "Services Agreement"), (v) the certificate of
incorporation of each of BioMarin and BioMarin Sub, as amended through the date
hereof, (vi) the bylaws of each of BioMarin and BioMarin Sub, each of which has
been certified to us by an officer of each of BioMarin and BioMarin Sub, (vii)
certificates of officers of each of BioMarin and BioMarin Sub, (viii)
certificates of public officials as we have deemed necessary or advisable, and
(ix) such other documents, records, certificates and instruments as we have
deemed necessary or advisable in order to render the opinions expressed herein.
In such examination and in rendering our opinion, we have assumed the
authenticity of all original documents and company records submitted to us, the
genuineness of all signatures, the legal capacity of all natural persons, the
conformity to original, executed documents of all copies and photocopies
submitted to us, the due authorization, execution and delivery of all documents
where due authorization, execution and delivery are a prerequisite to the
effectiveness thereof (other than the Documents, as defined below), that there
are no agreements or understandings among the Parties, written or oral and there
is no usage of trade or course of prior dealing among the Parties that would, in
either case, define, supplement, or qualify the terms of any of the U.S.
Agreement, the Canadian Agreement, the License Agreement or the Services
Agreement (collectively, the "Documents"), and that all parties will act in
accordance with and will refrain from taking any action that is forbidden by the
Documents. As to various questions of fact material to this opinion, without
investigation, we have relied upon statements or certificates of officers or
authorized persons of each member of the BioMarin U.S. Group and of public
officials and others, as well as the accuracy of representations and warranties
made by the members of the BioMarin U.S. Group in the Documents, and we assume
compliance on the part of all the Parties with their covenants and agreements
contained therein. We have also assumed that the offer, issuance or sale of
securities under the Purchase Agreements will not be integrated for purposes of
Rule 4350 of the Nasdaq listing requirements with the offer, issuance or sale of
any securities to any investor consummated within the six months preceding the
date hereof.
In expressing the opinion set forth in paragraph 1 below, we have relied
exclusively on the good standing certificates of each of the members of the
BioMarin U.S. Group.
In rendering our opinions set forth in paragraph 7 below, we have not made any
independent investigation of court records to determine whether any action,
suit, arbitration, claim or proceeding has been filed and our opinions are based
solely upon a written certificate provided to us by the Secretary of the
Company.
October 31, 2001
Page 3
As used in this letter, the expression "to our knowledge" or "of which we have
knowledge" or phrases of like import with reference to matters of fact means
that, after an examination of documents made available to us by members of the
BioMarin U.S. Group and after inquiries of officers or authorized persons of the
BioMarin U.S. Group, we have no reason to believe that the opinions expressed
herein are factually incorrect; but beyond that we have made no independent
factual investigation for the purpose of rendering this opinion. Moreover,
"knowledge" of this Firm is limited to the individual attorneys in the Firm who
have represented the BioMarin U.S. Group in connection with the Documents.
Except to the extent expressly set forth herein or as we otherwise believe to be
necessary to our opinion, we have not undertaken any independent investigation
to determine the existence or absence of any fact, and no inference as to our
knowledge of the existence or absence of any fact should be drawn from our
representation of the BioMarin U.S. Group or the rendering of the opinions set
forth below.
On the basis of the foregoing examinations and assumptions contained herein and
in reliance thereon, and on all matters of fact that we deem relevant under the
circumstances, and upon consideration of applicable law, subject to the
qualifications herein stated, we are of the opinion that:
1. Each of BioMarin and BioMarin Sub has been duly formed and is
validly existing as a corporation in good standing under the laws of the State
of Delaware.
2. Each of BioMarin and BioMarin Sub has all requisite corporate
power and authority to enter into the Canadian Agreement and the Services
Agreement, in the case of BioMarin, and the U.S. Agreement and the License
Agreement, the in the case of BioMarin and BioMarin Sub, and to consummate the
transactions contemplated thereby.
3. Each of BioMarin and BioMarin Sub has duly executed each of
the Documents to which it is a party, and each of BioMarin and BioMarin Sub has
taken all necessary corporate action to authorize and approve the execution,
delivery and performance on its part of the Documents executed by it and the
consummation of the transactions contemplated thereby.
4. Each of the Documents constitutes the valid and binding
obligation of BioMarin, enforceable against BioMarin in accordance with its
terms, except as such enforceability may be subject to the effect of (i) any
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer, fraudulent conveyance or other law relating to or affecting the
enforcement of creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). The U.S. Agreement and the License Agreement constitutes the
valid and binding obligation of BioMarin Sub, enforceable against BioMarin Sub
October 31, 2001
Page 4
in accordance with its terms, except as such enforceability may be subject to
the effect of (i) any applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, fraudulent conveyance or other law relating to
or affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5. The BioMarin Canadian Transaction Shares and the BioMarin
Worldwide Shares are duly authorized and, when issued in accordance with the
Purchase Agreements, will be validly issued, fully paid and nonassessable, free
and clear of all liens and restrictions, other than those imposed by Section 7.3
of the U.S. Agreement and Section 7.3 of the Canadian Agreement, the Securities
Act and other applicable securities laws or those created or suffered by any
member of the IBEX Group.
6. The shares of common stock of BioMarin issuable upon exercise
of the BioMarin Options are duly authorized and, when issued in accordance with
the terms of the Certificate and the BioMarin Options, respectively, will be
validly issued, fully paid and nonassessable and free and clear of all liens and
restrictions, other than those created or suffered by any member of the IBEX
Group or those imposed by the Securities Act or other applicable securities laws
or either Purchase Agreement.
7. To our knowledge, and without having performed any due
diligence review with respect to either BioMarin or BioMarin Sub, there is no
legal action, suit, arbitration or other legal proceeding pending against any
member of the BioMarin U.S. Group before any court. To our knowledge, neither
BioMarin nor BioMarin Sub is in default with respect to any order, writ,
judgment, injunction, decree, determination or award of any court or of any
government agency or instrumentality listed on Attachment No. 1 hereto.
The opinions set forth above are subject to the following limitations and
qualifications:
A. Our opinions in paragraphs 1, 2 and 3 are limited to the
Delaware General Corporate Law as it exists on the date hereof. With respect to
our opinions in paragraphs 4, 5, 6, and 7 of our opinions are limited in all
respects to the laws of the State of California and the United States of America
as they exist on the date hereof. Except as set forth in this clause, we do not
opine as to the applicability or effect of the laws of any other jurisdiction
including, without limitation, Canadian law or the laws of Quebec or of any
other Province of Canada, or any other laws of the State of Delaware. Our
opinion on California law does not extend to municipal ordinances or laws of
counties or other political subdivisions of such State.
October 31, 2001
Page 5
B. We call your attention to the fact that each of the U.S.
Agreement and the License Agreement states that it is governed by Delaware law
and each of the Canadian Agreement and the Services Agreement states that it is
governed by the laws of the Province of Quebec, and we are not rendering any
opinion with respect to the laws of the Province of Quebec or the laws of the
State of Delaware, except as expressly described in clause A above with respect
to Delaware General Corporate Law. We have not examined the question of what law
would govern the interpretation, validity or enforcement of the Documents and we
express no opinion thereon. In addition, we express no opinion as to whether
California law would govern the interpretation, validity or enforcement of the
Documents, and we have no reason to believe that California law would govern
such matters.
C. We express no opinion as to any federal or state
securities, antitrust or unfair competition laws or regulations nor as to the
effect of non-compliance by any member of the IBEX Group with any state or
federal laws or regulations that are applicable to the transactions contemplated
by the Documents because of the nature of its businesses or the manner in which
they are conducted.
D. We express no opinion as to the enforceability of any
covenant in any Document obligating BioMarin or BioMarin Sub to indemnify any
person or entity, or having the same or substantially the same effect as
indemnification.
E. We express no opinion as to the enforceability of any
provision in any Document regarding a party's ability or right to collect
attorneys' fees and costs in an action involving such Document.
F. We express no opinion as to any non-competition clause
or covenant in any document or agreement to be delivered under the terms of
either Purchase Agreement.
G. Except as provided herein, we express no opinion with
respect to the enforceability of any agreement, contract or instrument referred
to, identified in or attached (whether as an exhibit, annex, schedule or
otherwise) to any of the Documents.
H. We have assumed there is no misrepresentation, omission
or deceit by any person in connection with the execution, delivery or
performance of the Documents or any of the transactions contemplated thereby.
I. We express no opinion as to the effect of any provision
of any Document which relates to waiving defenses or releasing or indemnifying a
October 31, 2001
Page 6
party against liability for its own wrongful or negligent acts, or where waivers
or indemnifications are limited by applicable law or public policy.
J. We express no opinion with respect to the enforceability
of any provision in any Document to the effect that terms may not be waived or
modified except in writing and advise you that such provisions may be limited
under certain circumstances.
K. We express no opinion as to the validity, effect or
enforceability of any provision of any Document concerning choice of law, choice
of forum or consent to the jurisdiction of courts, venue of actions or means of
service of process.
This opinion letter deals only with the specified legal issues it explicitly
addresses, and no opinion that is not explicitly addressed should be inferred
from any matter stated in this letter.
This opinion is furnished to you by us as special counsel for BioMarin and
BioMarin Sub in connection with the matters described in the first paragraph of
this letter, and is solely for your benefit. This opinion may not be delivered
to or relied upon by any other person or for any other purpose, and may not be
referred to or quoted from, without our express prior written consent. This
opinion is rendered to you as of the date hereof, and we assume no obligation to
update you with respect to the matters set forth herein.
Very truly yours,
October 31, 2001
Page 7
Attachment No. 1
----------------
Courts, Government Agencies and Instrumentalities
SCHEDULE 11.1(F) - LEGAL OPINION OF
MENDELSOHN, ROSENTZVEIG, SHACTER
October 31, 2001
IBEX TECHNOLOGIES INC.
IBEX PHARMACEUTICALS INC.
TECHNOLOGIES IBEX R & D INC.
IBEX TECHNOLOGIES LLC
IBEX TECHNOLOGIES CORP.
C/O 5485 PARE
MONTREAL, QUEBEC
H4P 1P7
Dear Sirs:
We have acted as counsel to BioMarin Pharmaceutical Nova Scotia Company
("BioMarin NS") and BioMarin Pharmaceuticals Inc. ("BioMarin") in connection
with the preparation, execution and delivery of a Canadian Asset Purchase
Agreement dated as of o, 2001 (the "Canadian Agreement"), by and among BioMarin
NS and BioMarin (collectively, the "BioMarin Group") and IBEX Technologies Inc.
("IBEX"), IBEX Pharmaceuticals Inc. ("IBEX Pharma"), Technologies IBEX R&D Inc.
("IBEX R&D"), IBEX Technologies LLC ("IBEX LLC") and IBEX Technologies Corp
("IBEX Corp") (collectively, the "IBEX Group").
This opinion is delivered to you pursuant to the Canadian Agreement. Capitalized
terms used herein and not defined herein shall have the meanings ascribed
thereto in the Canadian Agreement.
In connection with this opinion, we have examined originals or copies certified
or authenticated to our satisfaction, of the following:
(a) the Canadian Agreement;
(b) a services, equipment and space sharing agreement dated o, 2001 among
the members of the IBEX Group and the members of the BioMarin Group (the
"Services Agreement"); and
(c) a certificate of a senior officer of each member of the BioMarin Group
and BioMarin US dated as of the date hereof, a copy of which is attached
hereto (the "Officer's Certificate").
Page 2
We have examined originals or copies, certified or identified to our
satisfaction, of the constating documents and by-laws of each of the members of
the BioMarin Group and of such corporate records of each of the members of the
BioMarin Group, certificates of public officials, officers of each of the
members of the BioMarin Group and such other documents and have considered such
questions of law and have made such other investigations as we have deemed
relevant or necessary as a basis for the opinions hereinafter expressed.
For the purposes hereof, we have assumed, with your permission and without
independent verification of any kind: (a) that the signatures of Persons signing
all documents in connection with which this opinion is rendered are genuine and
authorized; (b) the legal capacity of all natural persons; (c) that all
documents submitted to us as originals or duplicate originals are authentic; (d)
that all documents submitted to us as copies, whether certified or not, conform
to authentic original documents; (e) there has not been any mutual mistake of
fact or misunderstanding, error, fear, lesion, fraud, duress, or undue
influence; (f) there are no agreements or understandings among the Parties,
written or oral and there is no usage of trade or course of prior dealing among
the Parties that would, in either case, define, supplement, or qualify the terms
of the Canadian Agreement, and/or the Services Agreement (collectively, the
"Documents"); (g) the contracts, agreements or instruments to which each of the
members of the BioMarin Group is a party or by which their properties are bound,
specifically excluding the Documents and the U.S. Purchase Agreement, will be
enforced as written; (h) all Parties will act in accordance with, and will
refrain from taking any action that is forbidden by, the Documents; (i) all
Parties will act in accordance with the terms and conditions of the Documents;
(j) each member of the BioMarin Group and BioMarin US and each member of the
IBEX Group has been duly incorporated and is validly existing and in good
standing under the laws of its respective jurisdiction of incorporation and each
other jurisdiction in which the conduct of its respective business or the
ownership of its respective properties makes such qualification necessary; (k)
the Documents have been duly executed and delivered by each member of the
BioMarin Group and each member of the IBEX Group; and (l) each of the Documents
constitute a valid and legally binding obligation of each member of the IBEX
Group who has signed each of the Documents.
As to questions of fact relevant to this opinion, we have assumed the accuracy
of the representations and warranties of the members of the BioMarin Group in
the Documents to which they are a party and we assume compliance on the part of
all Parties with their covenants and agreements contained therein.
We are qualified to carry on the practice of law in the Province of Quebec only
and we express no opinion as to any laws or matters governed by any laws, other
than the laws of the Province of Quebec and the federal laws of Canada
applicable therein. The opinions herein are limited to the laws of the Province
of Quebec and the federal laws of Canada applicable herein in effect as of the
date hereof and we assume no obligation to update these opinions to take into
account any changes in such laws after the date hereof.
The phrase "to our knowledge" when used in this opinion is intended to indicate
that, during the course of our representation of the members of the BioMarin
Group, no information that would give us actual knowledge (as at the date
hereof) of the inaccuracy of such opinions has come to the attention of the
lawyers advising the members of the BioMarin Group.
Based upon and subject to the foregoing and the qualifications set forth below,
we are of the opinion that:
1. The execution, delivery and performance by each member of the BioMarin
Group of each of the Documents and the consummation of the Transaction,
subject to the Bulk Sales Carve-out, will not contravene any laws of
the Province of Quebec.
2. Save and except as provided in the Documents, no authorization, consent
or approval of, or filing with or notice to; (i) any governmental
Page 3
agency or regulatory body; or (ii) to our knowledge, any court or other
Person; is required to be obtained by any member of the BioMarin Group
in connection with the execution, delivery or performance of any of the
the Documents by each member of the BioMarin Group.
3. Each of the Documents is a legal, valid and binding obligation of each
member of the BioMarin Group, enforceable against each member of the
BioMarin Group in accordance with its respective terms.
The opinion set forth in section 3 above is subject to the qualifications that:
(i) Enforceability may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium, arrangement or
winding-up laws or other similar laws affecting the
enforcement of creditors' rights generally.
(ii) Enforceability may be limited by equitable principles,
including the principle that equitable remedies such as
specific performance and injunction may only be granted in the
discretion of a court of competent jurisdiction and may not be
awarded where damages are considered an adequate remedy.
(iii) A provision purporting to allow severance of a provision or
restricting its effect may not be enforceable if such
severance or restriction would not accord with public policy
or would involve a court in making a new contract for the
parties.
(iv) We express no opinion as to the validity of any provision in
the Documents that purports to establish any evidentiary
standard or purports to give or affect any right to notice.
(v) We express no opinion as to any non-competition clause or
covenant in any document or agreement to be delivered under
the terms of the Documents.
This opinion is rendered solely for your benefit in connection with the
Transaction and is not to be relied upon by any other Person or otherwise
furnished to third parties, used, circulated, quoted or relied upon, without our
prior consent. This opinion is as of the date hereof, and we undertake no, and
hereby disclaim any, obligation to advise you of any change in any matters set
forth herein.
Yours very truly,
Schedule 11.1(h)
----------------
LICENSE AGREEMENT
-----------------
THIS LICENSE AGREEMENT (this "Agreement") is made and entered into as
of October 31, 2001 (the "Effective Date"), by and among BioMarin
Pharmaceutical Inc., having its principal place of business at 371 Bel Marin
Keys Boulevard, Suite 210, Novato, California 94949, U.S.A. ("BioMarin Parent"),
BioMarin Pharmaceutical Nova Scotia Company, having its principal place of
business at Novato, CA ("BioMarin NS"), BioMarin Enzymes Inc.,
having its principal place of business at 371 Bel Marin Keys Boulevard, Suite
210, Novato, California 94949, U.S.A. ("BioMarin US" and together with BioMarin
Parent and BioMarin NS, "BioMarin"), and IBEX Pharmaceuticals Inc., having its
principal place of business at 5485 Pare Street, Montreal, Quebec H4P 1P7,
Canada ("IBEX Pharma" and together with its Affiliates (as defined below),
"IBEX"). Each of BioMarin and IBEX may be referred to herein individually as a
"Party" and collectively as the "Parties."
WHEREAS, BioMarin NS, BioMarin Parent and IBEX have entered into a
Canadian Asset Purchase Agreement dated as of October 31, 2001 (the "Canadian
Purchase Agreement"), whereby BioMarin has acquired the Patent Rights (as
defined below) which are located in Canada;
WHEREAS, BioMarin US, BioMarin Parent and IBEX have entered into a
United States Asset Purchase Agreement dated as of October 31, 2001 (the "U.S.
Purchase Agreement" and together with the Canadian Purchase Agreement, the
"Purchase Agreements"), whereby BioMarin has acquired the Patent Rights which
are located in the rest of the world other than Canada; and
WHEREAS, pursuant to the Purchase Agreements, the Parties have agreed
to enter into this Agreement, whereby IBEX would license on an exclusive basis
from BioMarin certain of the Patent Rights (as defined below) for certain uses;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, BioMarin and IBEX hereby agree as follows:
ARTICLE I - DEFINITIONS
-----------------------
1.01 "Affiliate" means any corporation or other business entity
which directly or indirectly controls, is controlled by, or is under common
control with one of the Parties hereto. "Controls" (including "controlled by"
and "under common control with") means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of a
corporation or other business entity, whether through the ownership of voting
securities, by contract or otherwise.
1.02 "Agreement" means this License Agreement.
1.03 "Assigned Patent Rights" means those Patent Rights included
within IBEX Group Canadian Intellectual Property (as defined in the Canadian
Purchase Agreement) and the IBEX Group Worldwide Intellectual Property (as
defined in the U.S. Purchase Agreement) transferred from the IBEX Group to
BioMarin under the Purchase Agreements.
1.04 "Cell Lines" means the cell lines transferred from the IBEX
Group to BioMarin under the Purchase Agreements.
1.05 "Confidential Information" means any confidential or
proprietary information which is provided by one Party to the other Party in
accordance with or relating to the subject matter of this Agreement.
Notwithstanding the foregoing, "Confidential Information" shall not include any
information which:
(a) is or becomes known publicly through no fault of the
Receiving Party;
(b) is obtained by the Receiving Party from a third party
entitled to disclose it;
(c) is already known to the Receiving Party at the time of
disclosure under this Agreement or under previous
agreements between the Parties, including the Purchase
Agreements; or
(d) is developed by the Receiving Party independent of any
disclosure made hereunder or under previous agreements
between the Parties, including the Purchase Agreements,
which can be demonstrated by written or other
documentary evidence.
For purposes of this Agreement, all information relating to
any patent applications included within the Patent Rights and the use thereof
shall be included in the definition of "Confidential Information." For purposes
of this Agreement, specific information disclosed as a part of Confidential
Information shall not be deemed to be in the public domain or in the prior
possession of the Receiving Party merely because it is embraced by more general
information in the public domain or by more general information in the prior
possession of the Receiving Party.
1.06 "Diagnostic and Research Reagent Field of Use" means
diagnostic and research reagent uses only. For purposes of this Agreement, a
"diagnostic use" shall mean a use which involves the testing of samples from
patients, whether as part of a diagnostic test system or as a research reagent
in a diagnostic laboratory procedure.
1.07 "Diagnostic and Research Reagent Licensed Products" means
Licensed Products in the Diagnostic and Research Reagent Field of Use.
1.08 "Heparin Assay Patents" means the Patents relating to "The
Heparinase Activated Clotting Time: A New Coagulation Test"; Inventors: Judah
Folkman, Robert L. Hannon, Robert S. Langer, Jr., and Robert W. Thompson,
consisting of M.I.T. Case No. 4176, US Patent No. 4795703 entitled "Heparin
Assay", Austria Patent No. 75503 entitled "Heparin Assay", Belgium Patent No.
0259463 entitled "Heparin Assay", Canada Patent No. 1288673 entitled "Heparin
Assay", Denmark Serial No. 5832/87 entitled "Heparin Assay" (Pending), EPC
Patent No. 0259463 entitled "Heparin Assay", France Patent No. 0259463 entitled
"Heparin Assay", Germany Patent No. P3778616.4 entitled "Heparin Assay", Italy
Patent No. 0259463 entitled "Heparin Assay", Japan Patent No. 2632525 entitled
"Heparin Assay", Luxembourg Patent No. 0259463 entitled "Heparin Assay",
Netherlands Patent No. 0259463 entitled "Heparin Assay", Sweden Patent No.
0259463 entitled "Heparin Assay", Switzerland Patent No. 0259463 entitled
"Heparin Assay", United Kingdom Patent No. 0259463 entitled "Heparin Assay", and
any patents issued thereon and any continuations, continuations-in-part,
divisions and substitutions of any such patents and all renewals, reissues and
extensions of any such patents.
1.09 "Licensed Product" means any product whose manufacture, use,
offer for sale or sale would, but for this Agreement, infringe a Valid Claim in
the country for which such product is manufactured, used, offered for sale or
sold.
2
1.10 "Limited Therapeutic Field of Use" means human therapeutic
uses proposed by IBEX for human disease indications other than those indications
being pursued by BioMarin at the time which IBEX proposes such use.
1.11 "Limited Therapeutic Licensed Products" means Licensed
Products in the Limited Therapeutic Field of Use which are permitted in
accordance with Article III.
1.12 "Limited Therapeutic Patent Rights" shall mean all subject
matter claimed in the following:
(a) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and any patent issued thereon and any
continuations, continuations-in-part, divisions and substitutions of any such
patent and all renewals, reissues and extensions of any such patent; and
(b) Any foreign patents and/or applications that are
counterparts of a patent described in subparagraph 1.12(a), including any patent
or application that claims subject matter claimed in, or takes priority from, a
patent described in subparagraph 1.12(a).
1.13 "Patent Rights" shall mean patent applications, patents
issuing thereon and any extensions or restorations by existing or future
extension or restoration mechanisms, renewals, continuations,
continuations-in-part, divisions, patents-of-addition, and/or reissues of any
patent.
1.14 "Valid Claim" shall mean a claim of an issued patent
included within the Patent Rights, which has not been held unenforceable or
invalid by a court or other governmental agency of competent jurisdiction, and
which has not been admitted to be invalid or unenforceable through reissue,
disclaimer or otherwise.
ARTICLE II - DIAGNOSTIC AND RESEARCH REAGENT LICENSE GRANT
----------------------------------------------------------
2.01 Subject to the terms and conditions of this Agreement,
BioMarin hereby grants to IBEX Pharma and its subsidiaries an exclusive (except
as to BioMarin and its Affiliates with respect to the research reagent field of
use other than the Heparinase I enzyme research reagent), royalty-free worldwide
license, with the right to sublicense, under the Assigned Patent Rights and the
Cell Lines to make, use, offer to sell and sell Diagnostic and Research Reagent
Licensed Products in the Diagnostic and Research Reagent Field of Use.
2.02 Except as expressly provided in Article III with respect to
Limited Therapeutic Licensed Products, IBEX shall have no rights under the
Assigned Patent Rights or the Cell Lines hereunder outside the Diagnostic and
Research Reagent Field of Use.
ARTICLE III - LIMITED THERAPEUTIC LICENSE GRANT
-----------------------------------------------
3.01 Subject to the terms and conditions of this Article III and
the remainder of this Agreement, BioMarin hereby grants to IBEX Pharma an
exclusive (except as to BioMarin and its Affiliates), royalty-free (except as
provided in Section 9.03) worldwide license, without the right to sublicense
(except as provided in Section 9.03), under the Limited Therapeutic Patent
Rights and the Cell Lines to make, use, offer to sell and sell up to three (3)
Limited Therapeutic Licensed Products in the Limited Therapeutic Field of Use.
3
3.02 IBEX Pharma shall have no right to any license under the
Limited Therapeutic Patent Rights and the Cell Lines with respect to any Limited
Therapeutic Licensed Product unless and until (a) IBEX Pharma notifies BioMarin
of its intent to pursue a Limited Therapeutic Licensed Product and (b) BioMarin
verifies that such Limited Therapeutic Licensed Product is in the Limited
Therapeutic Field of Use (i.e., such Licensed Product is for a human disease
indication other than any indication then being pursued by BioMarin at the time
which IBEX proposes such use).
3.03 The license granted by BioMarin to IBEX Pharma under this
Article III shall not extend to any of the Assigned Patent Rights other than the
Limited Therapeutic Patent Rights.
4
ARTICLE IV - HEPARIN ASSAY LICENSE GRANT
----------------------------------------
4.01 Subject to the terms and conditions of this Agreement,
BioMarin hereby grants to IBEX Pharma and its subsidiaries an exclusive,
royalty-free worldwide license, with the right to sublicense, under the Heparin
Assay Patents to make, use, offer to sell and sell Diagnostic and Research
Reagent Licensed Products in the Diagnostic and Research Reagent Field of Use.
ARTICLE V - CONFIDENTIALITY
---------------------------
5.01 During the Term and for a period of five (5) years
thereafter, BioMarin and IBEX each (in such capacity, the "Receiving Party")
shall use their respective best efforts to protect the confidentiality of
Confidential Information provided to it by the other Party (the "Disclosing
Party") and shall not use such Confidential Information except for the purposes
of this Agreement. The Receiving Party shall only disclose Confidential
Information of the Disclosing Party to those of its employees with a need to
know such information for purposes of performance of the Receiving Party's
business as permitted under this Agreement. Such employees shall be bound by the
duties of confidentiality set forth in this Article V, and the Receiving Party
shall be responsible for any violation of this Article V by any such employee.
5.02 Notwithstanding any other provisions in this Agreement, the
Receiving Party may disclose Confidential Information to the extent required by
any applicable law, regulation, or court or governmental order; provided that
the Receiving Party gives the Disclosing Party reasonable advance written notice
of any such disclosure or any request or demand for such disclosure.
5.03 It is understood and agreed that money damages would not be
a sufficient remedy for any breach of this Article V by the Receiving Party, and
that the Disclosing Party shall be entitled to equitable relief, including
injunction and specific performance, as a remedy for such breach. Such remedies
shall not be the exclusive remedies for a breach of this Article V but shall be
in addition to all other remedies available at law or equity to the Disclosing
Party.
ARTICLE VI - REPRESENTATIONS, WARRANTIES, COVENANTS AND INDEMNIFICATION
-----------------------------------------------------------------------
6.01 BioMarin represents and warrants that:
(a) it has the right to enter into this Agreement, to fully
comply with the terms and conditions of this Agreement, and to grant to IBEX the
rights and licenses granted herein;
(b) this Agreement is a legal and valid obligation binding upon
BioMarin, enforceable against BioMarin in accordance with its terms;
(c) the execution and delivery of this Agreement and the
performance of its obligations hereunder do not and shall not conflict with any
agreement to which BioMarin is a party or by which it is bound; and
(d) the execution and delivery of this Agreement and the
performance of its obligations hereunder do not require the consent of any third
party.
6.02 IBEX represents and warrants that:
(a) it has the right to enter into this Agreement and to fully
comply with the terms and conditions of this Agreement;
(b) this Agreement is a legal and valid obligation binding upon
IBEX, enforceable against IBEX in accordance with its terms;
5
(c) the execution and delivery of this Agreement and the
performance of its obligations hereunder do not and shall not conflict with any
agreement to which IBEX is a party or by which it is bound; and
(d) the execution and delivery of this Agreement and the
performance of its obligations hereunder do not require the consent of any third
party.
6.03 Nothing in this Agreement shall be read or construed as:
(a) a warranty or representation as to the commercial utility of
the Licensed Products or any product based on the Assigned Patent Rights;
(b) a warranty or representation that any pending application
within the Assigned Patent Rights will mature into an issued patent;
(c) a warranty or representation as to the validity or scope of
any Assigned Patent Rights;
(d) a warranty or representation that anything made, used, or
otherwise disposed of under this Agreement is or will be free from infringement
of patents, copyrights or trademarks of third parties; or
(e) an obligation on the part of BioMarin to bring or prosecute
actions or suits against third parties for infringement.
6.04 IBEX further warrants that any manufacture, use and/or sale
of Licensed Product(s) by IBEX shall be in substantial compliance with all
material laws, regulations, and necessary governmental permits and approvals
that are applicable. IBEX covenants that it shall use commercially reasonable
efforts to cause its sublicensees to agree to be in substantial compliance with
all material laws, regulations and necessary governmental permits and approvals
that are applicable.
6.05 IBEX hereby covenants and agrees to never, anywhere in the
world, institute any action or suit at law or in equity against BioMarin or its
Affiliates to invalidate or otherwise challenge the validity or enforceability
of any of the Assigned Patent Rights.
6.06 IBEX hereby indemnifies and holds BioMarin and its
Affiliates harmless from and against any damages, claims, actions, losses,
liabilities and expenses (including without limitation legal fees and expenses)
of any nature arising out of IBEX's making, using, selling or offering to sell
Licensed Products.
ARTICLE VII - PATENT PROSECUTION & MAINTENANCE
----------------------------------------------
7.01 BioMarin shall have sole control over all prosecution and
maintenance of the Assigned Patent Rights, using counsel selected by BioMarin.
ARTICLE VIII - PATENT ENFORCEMENT AND THIRD PARTY PATENTS
---------------------------------------------------------
8.01 BioMarin intends, but shall not be obligated, to protect its
interests in any Assigned Patent Rights from infringement by third parties and
to prosecute infringers or otherwise act to eliminate infringement when, in the
sole judgement of BioMarin, such action is necessary, proper and justified. If
within sixty (60) days after written request by IBEX, BioMarin elects not to
enforce any of the Assigned Patent Rights against any third party, IBEX shall
have the right, but not the obligation, upon the written approval of BioMarin to
6
seek to enforce the Assigned Patent Rights against such third party. BioMarin
shall have the right to reasonably withhold its approval of such enforcement of
the Assigned Patent Rights if BioMarin believes that such enforcement would have
an adverse impact upon the scope or the validity of the Assigned Patent Rights.
In the event that BioMarin approves IBEX's right to enforce
the Assigned Patent Rights in accordance with this Section 8.01, IBEX shall
consult with BioMarin and keep BioMarin regularly advised of IBEX's strategies,
plans, progress and results of any such enforcement action, and IBEX shall bear
all associated costs and expenses. IBEX shall not enter into any settlement
action or agree to any settlement arrangement, or take any action that may
negatively impact the Assigned Patent Rights, without the express prior written
consent of BioMarin.
8.02 IBEX will promptly notify BioMarin upon becoming aware of
(a) any third party claim or action against IBEX and/or BioMarin for
infringement of third party Patent Rights through the making, using or selling
Licensed Products or (b) any third party infringement of the Assigned Patent
Rights, and provide BioMarin of evidence of the alleged infringement. BioMarin
shall have the sole right and discretion with respect to preventing and/or
causing the discontinuance of any infringement of the Assigned Patent Rights.
IBEX agrees that it will, at BioMarin's request and expense, furnish such
reasonable assistance as may be required to assist in preventing or
discontinuing any such infringement.
ARTICLE IX - TERM AND TERMINATION
---------------------------------
9.01 This Agreement shall become effective as of the Effective
Date and, unless earlier terminated, the Agreement shall remain in full force
and effect until the last to expire of the patents within the Assigned Patent
Rights (the "Term"). The license granted pursuant to Article II shall remain in
full force and effect through the expiration of the Term. The license granted
pursuant to Article III shall be effective for a period through the earlier to
occur of (a) a Third Party Acquisition of IBEX or (b) five (5) years from the
date of this Agreement; provided, however, that if prior to such Third Party
Acquisition of IBEX or the expiration of such five year period, IBEX has entered
into a license for a particular Limited Therapeutic Licensed Product in
accordance with Article III, the license granted pursuant to Article III with
respect to such Limited Therapeutic Licensed Product shall remain in full force
and effect through the expiration of the Term.
9.02 BioMarin shall have the right to terminate this Agreement in
the event of material breach or default by IBEX if such breach or default has
not been cured within thirty (30) calendar days after written notice of the
breach to BioMarin.
9.03 Immediately upon the consummation of a transaction (a "Third
Party Transaction") whereby IBEX assigns, transfers or sublicenses all or a
material portion of its rights under Article III hereunder to a third party,
IBEX hereby acknowledges and agrees that BioMarin shall be entitled to fifty
percent of all payments received by IBEX in connection with such Third Party
Transaction (including without limitation up-front payments, license fees,
royalties, shares of profits and milestone payments). In the case of a Third
Party Transaction involving a merger, consolidation, share exchange, business
combination or other similar transaction (a "Third Party Acquisition"), the
calculation of payments in subsection (a) of the preceding sentence shall be
made based upon the allocation of the purchase price in the Third Party
Acquisition to the rights licensed to IBEX under Article III.
7
9.04 IBEX shall have the right to terminate its license rights
under this Agreement for any or no reason, effective upon ninety (90) days
notice in writing to BioMarin. IBEX may so terminate with respect to the entire
Agreement or with respect to one or more patent applications within the Assigned
Patent Rights.
9.05 At BioMarin's option, IBEX shall upon termination of this
Agreement either return to BioMarin all Confidential Information of BioMarin's
received by IBEX pursuant to this Agreement, or certify that such information
has been destroyed. Notwithstanding the preceding, IBEX would be permitted to
retain one copy of the BioMarin Confidential Information, solely for record
purposes.
9.06 Expiration or termination of this Agreement shall not
discharge, affect or modify any rights or obligations which accrue or are
incurred prior to the date of expiration or termination.
9.07 Articles I, V, VI, IX, X and XI shall survive any expiration
or termination of this Agreement.
ARTICLE X - ASSIGNABILITY
-------------------------
10.01 Neither this Agreement nor the rights and obligations of
either Party hereunder shall be assigned without the prior written consent of
the other Party, which consent may be withheld in the other Party's sole
discretion. Notwithstanding the foregoing, this Agreement may be assigned by
either Party in connection with a Third Party Transaction, subject to the
provisions of Section 8.03.
10.02 All of the terms, covenants, representations, warranties and
conditions of this Agreement shall be binding upon, and inure to the benefit of
and be enforceable by, the Parties hereto and their respective successors.
ARTICLE XI - MISCELLANEOUS
--------------------------
11.01 This Agreement shall be construed and interpreted, and the
rights and obligations of the Parties shall be determined, in accordance with
the laws of the State of Delaware, United States of America, without regard to
the conflicts of laws principles thereof.
11.02 No alteration or amendment of this Agreement shall be
effective unless embodied in writing and executed by an authorized
representative of each Party.
11.03 All notices required to be given under this Agreement, and
the payment of required fees and royalties, shall be made by first class air
mail or express courier addressed to the respective Party at the address below,
or by telefax to the numbers listed below (for notices), or to such changed
address or telefax number as a Party may designate in writing to the other
Party. Such notice, if received, shall be deemed to have been received, if by
first class mail, on the fifth (5th) calendar day after posting; if by express
courier, on the date of delivery by the courier; and if by telefax, upon
transmission with electronic confirmation of receipt.
8
If to IBEX: IBEX Pharmaceuticals Inc.
5485 Pare Street
Montreal, Quebec H4P 1P7, Canada
Telefax #: (514) 344-8827
Attn: President
If to BioMarin: BioMarin Pharmaceutical Inc.
371 Bel Marin Keys Boulevard, Suite 210
Novato CA 94949, U.S.A.
Telefax #: (415) 382-7889
Attn: Dr. Emil Kakkis
with a copy to: Paul, Hastings, Janofsky & Walker LLP
555 S. Flower Street, 23rd Floor
Los Angeles, CA 90071-2371, U.S.A.
Telefax: (213) 627-0705
Attn: Siobhan McBreen Burke, Esq.
11.04 The Parties to this Agreement are independent contractors
and not joint venturers or partners, and no agency, partnership, or power to
obligate the other Party is created by this Agreement.
11.05 If any of the provisions of this Agreement are or become in
conflict with the laws or regulations of any jurisdiction or any governmental
entity having jurisdiction over the Parties or the subject matter, those
provisions shall be deleted and the remaining terms and conditions of this
Agreement shall remain in full force and effect.
11.06 This Agreement, together with the Purchase Agreements,
constitutes the entire understanding of the Parties with respect to the subject
matter hereof and supersedes all previous understandings and agreements, written
or oral, which between the Parties hereto may have reached with respect to the
subject matter.
11.07 The parties have requested that this Agreement and all
communications and documents relating thereto be expressed in the English
language. Les parties ont exige que ce contrat ainsi que tous documents s'y
rattachant soient rediges dans la langue anglaise.
9
IN WITNESS WHEREOF, the Parties hereto have duly executed this
Agreement in duplicate originals.
BIOMARIN:
BIOMARIN PHARMACEUTICAL INC.
By: /s/Raymond W. Anderson
Title: Secretary
Date: October 31, 2001
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
By: /s/Raymond W. Anderson
Title: Secretary
Date: October 31, 2001
BIOMARIN ENZYMES INC.
By: /s/Raymond W. Anderson
Title: Secretary
Date: October 31, 2001
IBEX:
IBEX PHARMACEUTICALS INC.
By: /s/Paul Baehr
Title: CEO
Date: October 31, 2001
The undersigned hereby guarantees the full and complete performance of
this Agreement by IBEX Pharmaceuticals Inc.
IBEX TECHNOLOGIES INC.
By: /s/Paul Baehr
Title: CEO
Date: October 31, 2001
10
Schedule 12.1(a)
----------------
CERTIFICATE
RE: REPRESENTATIONS AND WARRANTIES
TO: BioMarin Pharmaceutical Inc. and BioMarin Pharmaceutical Nova Scotia
Company (collectively, the "BioMarin Group")
--------------
FROM: IBEX Technologies Inc., IBEX Pharmaceuticals Inc., IBEX Technologies
LLC, IBEX Technologies Corp. and Technologies IBEX R&D Inc.
(collectively, the "IBEX Group") ----------
RE: Canadian Asset Purchase Agreement dated as of October __, 2001 among
the IBEX Group and the BioMarin Group
The members of the IBEX Group do hereby jointly and severally certify to the
members of the BioMarin Group that the representations and warranties of the
members of the IBEX Group made in the Canadian Asset Purchase Agreement are
true, correct and accurate in all material respects (except where already
qualified as to materiality) on the date hereof with the same force and effect,
as if made on and as of the date hereof.
DATED at _________________________________ as of October __, 2001.
IBEX TECHNOLOGIES INC. IBEX PHARMACEUTICALS INC.
By: /s/ Paul Baehr By: /s/ Paul Baehr
Name: Paul Baehr Name: Paul Baehr
Its: CEO Its: CEO
IBEX TECHNOLOGIES LLC IBEX TECHNOLOGIES CORP.
By: /s/ Paul Baehr By: /s/ Paul Baehr
Name: Paul Baehr Name: Paul Baehr
Its: President Its: President
TECHNOLOGIES IBEX R&D INC.
By: /s/ Paul Baehr
Name: Paul Baehr
Its: President
Schedule 12.1(c)
----------------
CERTIFICATE
RE: CONDITIONS
TO: BioMarin Pharmaceutical Inc. and BioMarin Pharmaceutical Nova Scotia
Company (collectively, the "BioMarin Group")
--------------
FROM: IBEX Technologies Inc., IBEX Pharmaceuticals Inc., IBEX Technologies
LLC, IBEX Technologies Corp. and Technologies IBEX R&D Inc.
(collectively, the "IBEX Group")
----------
RE: Canadian Asset Purchase Agreement dated as of October 9, 2001 among
the IBEX Group and the BioMarin Group
The members of the IBEX Group do hereby jointly and severally certify to the
members of the BioMarin Group that all covenants and agreements agreed to be
performed or caused to be performed by each member of the IBEX Group in the
Canadian Asset Purchase Agreement on or before the Closing (as defined in the
Canadian Asset Purchase Agreement) have been so performed.
DATED at _________________________________ as of October 31, 2001.
IBEX TECHNOLOGIES INC. IBEX PHARMACEUTICALS INC.
By: /s/ Paul Baehr By: /s/ Paul Baehr
Name: Paul Baehr Name: Paul Baehr
Its: CEO Its: CEO
IBEX TECHNOLOGIES LLC IBEX TECHNOLOGIES CORP.
By: /s/ Paul Baehr By: /s/ Paul Baehr
Name: Paul Baehr Name: Paul Baehr
Its: President Its: President
TECHNOLOGIES IBEX R&D INC.
By: /s/ Paul Baehr
Name: Paul Baehr
Its: President
IBEX TECHNOLOGIES INC.
Schedule 12.1(l)(i)
-------------------
BILL OF SALE AND ASSIGNMENT OF INTEREST (CANADA)
KNOW ALL PERSONS BY THESE PRESENTS: Pursuant to that certain
Canadian Asset Purchase Agreement (the "Purchase Agreement") dated as of October
__, 2001, by and among BIOMARIN PHARMACEUTICAL INC., a Delaware corporation
("BioMarin"), BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY, a corporation
incorporated pursuant to the laws of the Province of Nova Scotia ("BioMarin
NS"), on the one hand, and IBEX TECHNOLOGIES INC., a Canadian corporation
("IBEX"), IBEX PHARMACEUTICALS INC., a Canadian corporation ("IBEX Pharma"),
IBEX TECHNOLOGIES LLC, a Delaware limited liability company ("IBEX LLC"), IBEX
TECHNOLOGIES CORP., a Delaware corporation ("IBEX Corp.") and TECHNOLOGIES IBEX
R & D INC., a corporation incorporated pursuant to the laws of the Province of
Quebec ("IBEX R & D") (IBEX, IBEX Pharma and IBEX R & D are collectively
referred to as the "Canadian Vendors"). Any capitalized term used in this Bill
of Sale and Assignment of Interest but not defined herein shall have the meaning
assigned to such term in the Purchase Agreement.
For valuable consideration as set forth in the Purchase
Agreement, receipt of which is hereby acknowledged, the Canadian Vendors hereby
transfer, assign, convey and deliver to BioMarin NS, good and marketable title,
free and clear of and any all Encumbrances subject to the rights of creditors
pursuant to the Bulk Sales Act Carve-Out, the IBEX Pharma Canadian Assets set
forth in Section 2.1 of the Purchase Agreement.
This Bill of Sale and Assignment of Interest shall be binding
upon the parties hereto and inure to the benefit of BioMarin NS and the
successors and assigns of BioMarin NS.
This Bill of Sale and Assignment of Interest shall be governed
by and construed in accordance with the internal laws (and not the law of
conflicts) of the Province of Quebec and the federal laws of Canada applicable
therein.
IN WITNESS WHEREOF, each of the undersigned has caused this
Bill of Sale and Assignment of Interest to be signed by its duly authorized
representative as of the 31st day of October, 2001.
CANADIAN VENDORS:
IBEX TECHNOLOGIES INC.
By: /s/ Paul Baehr
Name: Paul Baehr
Title: CEO
IBEX PHARMACEUTICALS INC.
By: /s/ Paul Baehr
Name: Paul Baehr
Title: CEO
TECHNOLOGIES IBEX R & D INC.
By: /s/ Paul Baehr
Name: Paul Baehr
Title: President
Schedule 12.1(l)(ii) - Patent Assignment
PATENT ASSIGNMENT (CANADA)
--------------------------
In consideration of Ten Dollars ($10.00), and other good and
valuable consideration, the receipt of which is hereby acknowledged, [INSERT
NAME OF CORPORATE ASSIGNOR], the office address of which is 5485 Pare, Montreal,
Quebec, H4P 1P7, CANADA:
Does hereby sell, assign and transfer to BIOMARIN
PHARMACEUTICAL NOVA SCOTIA COMPANY, having a place of business at [INSERT
BIOMARIN NS ADDRESS], (the "Assignee") its successors, assigns and legal
representatives, the entire right, title and interest for Canada, and all other
countries and jurisdictions, in and to any and all inventions and improvements
which are disclosed in the patents and patent applications listed in Schedule
"A" hereto and all divisional, continuing, substitute, renewal, reissue, and all
other applications for Letters Patent which have been or shall be filed in
Canada or elsewhere on any of said inventions and improvements; and in and to
all original and reissued patents which have been or shall be issued in Canada
or elsewhere on said inventions and improvements;
Does hereby agree that said Assignee may apply for and receive
Letters Patent and re-issue patents for said inventions and improvements in its
own name; and that, when requested, without charge to but at the expense of said
Assignee, its successors, assigns and legal representatives, to carry out in
good faith the intent and purpose of this assignment, the undersigned will
execute all divisional, continuing, substitute, renewal, reissue, and all other
patent applications on any and all said improvements; execute all rightful
oaths, assignments, powers of attorney and other papers; communicate to said
Assignee, its successors, assigns, and representatives, all facts known to the
undersigned relating to said improvements and the history thereof; and generally
do everything possible which said Assignee, its successors, assigns or
representatives shall consider desirable for aiding in securing and maintaining
proper patent protection for said improvements and for vesting title to said
improvements and all applications for patents and all patents on said
improvements, in said Assignee, its successors, assigns and legal
representatives; and
2
Does hereby covenant with said Assignee, its successors,
assigns and legal representatives that no assignment, grant, mortgage, license
or other agreement affecting the rights and property herein conveyed has been
made to others by the undersigned, and that full right to convey the same as
herein expressed is possessed by the undersigned.
Executed at ____________________, _______________________ this
___________________ day of ___________________, 2001.
[INSERT CORPORATE ASSIGNOR NAME]
Per:
------------------------------------------
I have authority to bind the corporation.
NOTARIAL ACKNOWLEDGEMENT
------------------------
PROVINCE OF QUEBEC
[TO BE INSERTED]
Schedule 12.1(l)(ii) - Patent Assignment
SCHEDULE A: PATENTS AND PATENT APPLICATIONS
-------------------------------------------
Patent Number Title Date Issued/Filing Date Owner
-------------------------------------------------------------------------------------------------------------------------
Schedule 12.1(l)(ii) - Trademark Assignment
TRADE-MARK ASSIGNMENT
---------------------
The undersigned, IBEX Technologies Inc., the full post office address
of whose principal office or place of business is 5485 Pare, Montreal, Quebec,
Canada, H4P 1P7, in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt of which is hereby acknowledged,
does hereby assign, transfer and set over unto Biomarin Pharmaceutical Nova
Scotia Company, the full post office address of whose principal office or place
of business is [[address]], its entire right, interest and title in the Canadian
trade marks and trade names listed in Schedule "A" attached hereto, together
with the goodwill associated with such trade-marks, and trade names, the same to
be held and enjoyed by the said Biomarin Pharmaceutical Nova Scotia Company, its
successors and assigns, as fully and completely as by this undersigned had the
Assignment not been made.
IN WITNESS WHEREOF IBEX Technologies Inc. has hereunto executed this
Assignment at __________________________ this ___________ day of 2001.
IBEX TECHNOLOGIES INC.
By:
-----------------------------------------------
I have authority to bind the corporation. c/s
Title:
-----------------------------------------------
ACKNOWLEDGEMENT
---------------
The undersigned, Biomarin Pharmaceutical Nova Scotia Company, the full
post office address of whose principal office or place of business is
[[address]], hereby accepts the above Assignment and appoints Cassels Brock &
Blackwell LLP, whose full post office address is Scotia Plaza, Suite 2100, 40
King Street West, Toronto, Ontario M5H 3C2 as the firm to which any notice in
respect of the trade-mark may be sent, and upon which service of any proceeding
in respect of this Assignment or registration may be given or served with the
same effect as if they had been given to or served upon it.
EXECUTED at __________________________ this ___________ day of 2001.
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
By:
-----------------------------------------------
I have authority to bind the corporation. c/s
Title:
-----------------------------------------------
SCHEDULE "A"
------------
Trade Mark Registration/Application No.
--------------------------------------------------------------------------------
Schedule 12.1(m)
----------------
FORM OF CONSENT
(CANADIAN ASSET PURCHASE AGREEMENT)
[IBEX Entity Letterhead]
[Addressee]
[Address]
October __, 2001
Re: Assignment of Canadian Rights
Dear Sir or Madam:
IBEX Technologies Inc. ("IBEX"), IBEX Pharmaceuticals Inc.
("IBEX Pharma"), IBEX Technologies LLC, a Delaware limited liability company
("IBEX LLC"), IBEX Technologies Corp., a Delaware corporation ("IBEX Corp.") and
Technologies IBEX R&D Inc. ("IBEX R&D" and, together with IBEX, IBEX Pharma,
IBEX LLC and IBEX Corp., the "IBEX Group"), on the one hand, and BioMarin
Pharmaceutical Inc. ("BioMarin") and BioMarin Pharmaceutical Nova Scotia Company
("BioMarin NS" and, together with BioMarin, the "BioMarin Group"), on the other
hand, have entered into that certain Canadian Asset Purchase Agreement dated as
of October __, 2001 (the "Purchase Agreement").
In accordance with the Purchase Agreement, the members of the
IBEX Group desire to transfer and assign to the members of the BioMarin Group,
and the members of the BioMarin Group desire to purchase and assume, certain
rights and obligations of the IBEX Group, including that certain ______
Agreement by and between [name of IBEX entity] and [Addressee] (the "Assigned
Agreement").
Accordingly, we are writing this letter requesting that you
provide your written consent to the proposed transfer and assignment of the
Assigned Agreement described above. Please indicate this consent by
counter-signing this letter on the space provided below and returning one
original executed copy to the IBEX Group at ____________. By counter-signing
this letter, you further acknowledge and agree that all amounts due and payable
to you under the Assigned Agreement have been paid in full as of the date of
this letter.
The IBEX Group anticipates that the Closing Date for this
assignment and assumption of the Assigned Agreement will occur on or about
October __, 2001. Promptly upon consummation thereof, the IBEX Group will
deliver a notice to you indicating completion of the transaction.
[Addressee]
October __, 2001
Page 2
If you have any questions concerning this consent, please
contact _______ at _________. Thank you very much for your prompt attention to
this matter.
Very truly yours,
IBEX Technologies Inc., for the IBEX Group
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ACKNOWLEDGED AND CONSENTED TO BY:
[Addressee]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date: _____________
Schedule 12.1(o)
----------------
NON-COMPETITION AGREEMENT
-------------------------
This NON-COMPETITION AGREEMENT (this "Agreement") is made and
entered into as of this ____ day of October, 2001, by and among BIOMARIN
PHARMACEUTICAL INC., a Delaware corporation ("BioMarin"), BIOMARIN
PHARMACEUTICAL NOVA SCOTIA COMPANY, a corporation incorporated under the laws of
the Province of Nova Scotia ("BioMarin NS"), BIOMARIN ENZYMES INC., a Delaware
corporation ("BioMarin US Sub", and, together with BioMarin and BioMarin NS, the
"BioMarin Group"), on the one hand, and IBEX TECHNOLOGIES INC., a Canadian
corporation ("IBEX"), IBEX PHARMACEUTICALS INC., a Canadian corporation ("IBEX
Pharma"), TECHNOLOGIES IBEX R & D INC., a corporation incorporated under the
laws of the Province of Quebec ("IBEX R & D"), IBEX TECHNOLOGIES LLC, a Delaware
limited liability company ("IBEX LLC"), and IBEX TECHNOLOGIES CORP., a Delaware
corporation ("IBEX Corp.") (IBEX, IBEX Pharma and IBEX R & D are collectively
referred to herein as the "Canadian Vendors" and IBEX LLC and IBEX Corp. are
collectively referred to as the "U.S. Vendors"), on the other hand, with
reference to the following facts:
R E C I T A L S
A. IBEX, IBEX Pharma, IBEX R & D, IBEX LLC and IBEX Corp.
(collectively, the "Members of the IBEX Group") and the BioMarin Group have
entered into that certain Canadian Asset Purchase Agreement (the "Canadian
Purchase Agreement"), dated as of October ___, 2001, pursuant to which the
Canadian Vendors are selling certain Canadian assets pertaining to the operation
of such Canadian Vendors' business in Canada, as more particularly described in
the Canadian Purchase Agreement, to BioMarin NS. Unless otherwise defined
herein, all capitalized terms used herein shall have the meanings assigned to
them in the Canadian Purchase Agreement.
B. The Members of the IBEX Group have entered into that certain
United States Asset Purchase Agreement (the "United States Purchase Agreement"),
dated as of October ___, 2001, pursuant to which the Members of the IBEX Group,
in their capacity as the U.S. Vendors, are selling certain assets located
worldwide, exclusive of Canada, pertaining to the operation of the U.S. Vendors'
business worldwide, exclusive of Canada, as more particularly described in the
United States Purchase Agreement, to BioMarin U.S. Sub. The Canadian Purchase
Agreement and the United States Purchase Agreement are referred to herein as the
"Purchase Agreements." Unless otherwise defined herein, all capitalized terms
used herein shall have the meanings assigned to them in the Purchase Agreements.
As a condition to the purchase of the assets from the Canadian
Vendors and the U.S. Vendors under the Purchase Agreements, the BioMarin Group
has required that the IBEX Group enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, covenants and agreements contained herein, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Non-Competition. Each of the Members of the IBEX Group and
their respective officers, directors, and affiliates (the "Vendor Group") hereby
agrees that during the Term (as defined below) they will not, acting alone or as
a member of a firm, corporation, partnership, limited liability company or other
business entity (whether as an advisor, principal, employee, officer, director,
consultant, independent contractor, agent, partner, 3% or greater equity holder
or otherwise):
a. engage in, own, operate, maintain or finance any
business or other enterprise directly or indirectly in competition with the IBEX
Pharma Canadian Business (as defined in the Canadian Purchase Agreement) or the
IBEX Group Worldwide Business (as defined in the United States Purchase
Agreement) anywhere in the Territory (as defined below) (the "Prohibited
Business"); or
b recruit or otherwise solicit or induce any employee,
customer, subscriber or supplier of the BioMarin Group who operates as such
anywhere in the Territory to terminate its employment with or arrangement for
the provision of services by or to the BioMarin Group, or otherwise to cease any
of its relationships with the BioMarin Group.
For purposes of this Agreement, "Term" shall mean the period commencing on the
date hereof and continuing for a period of five (5) years thereafter and
"Territory" shall mean all of the geographic territory in which BioMarin
currently or hereafter operates its business (including its operation of the
business formerly comprising the IBEX Pharma Canadian Business and the IBEX
Group Worldwide Business).
The parties hereto acknowledge and agree that the operation of
the Excluded Assets by any of the Members of the IBEX Group shall not constitute
the Prohibited Business and shall not constitute a violation of the covenants
contained in clause (a) above.
2. Relief. Each of the Members of the IBEX Group acknowledges
that the terms and conditions of this Agreement are reasonable and necessary to
protect the legitimate interests of the BioMarin Group and that any violation of
such terms or conditions would result in irreparable injury to the BioMarin
Group. Each of the Members of the IBEX Group agrees that the members of the
BioMarin Group do not have an adequate remedy at law for any breach or
threatened breach or attempted breach of the covenants and agreements set forth
in this Agreement and, accordingly, each of the Members of the IBEX Group agrees
that the BioMarin Group may, in addition to other remedies that may be available
under this Agreement, the Canadian Purchase Agreement, the United States
2
Purchase Agreement or at law, commence proceedings in equity for an injunction
temporarily or permanently enjoining each of the Members of the IBEX Group from
breaching or threatening or attempting any such breach of such covenants and
agreements and each of the Members of the IBEX Group hereby consents to the
issuance of such injunction.
3. Severability. In the event that the provisions of this
Agreement shall be determined by a court of competent jurisdiction to be overly
broad by reason of the length of the period of time set forth therein or the
size of the area affected thereby, such court may reduce such period of time or
such area, or both, to a period of time or area which it deems reasonable under
the circumstances. If any one or more provisions hereof are held to be invalid
or unenforceable, the validity of the remaining provisions shall not be affected
thereby.
4. Representations and Warranties. Each of the Members of the
IBEX Group hereby represents and warrants, jointly and severally, that each has
the requisite power and authority to execute and deliver this Agreement and to
perform its respective obligations hereunder; the execution, delivery and
performance of this Agreement by each of the Members of the IBEX Group has been
duly authorized and approved by all necessary action; and this Agreement has
been duly executed and delivered by each of the Members of the IBEX Group and
constitutes the legal, valid and binding agreement of each of the Members of the
IBEX Group enforceable in accordance with its terms.
5. Miscellaneous.
-------------
a. Notices. All notices and other communications which
are required or permitted to be given under this Agreement shall be in writing
and shall be deemed to be sufficiently given (i) if delivered personally, upon
delivery, (ii) if delivered by registered or certified mail (return receipt
requested), postage prepaid, upon the earlier of actual delivery or upon three
(3) days after being mailed, and (iii) if delivered by telecopy, upon
confirmation of transmission by telecopy, in each case to the Members of the
IBEX Group, or the BioMarin Group at the following address:
As to the Members of the IBEX Group:
IBEX Technologies Inc.
5485 Pare Street
Montreal, Quebec H4P 1P7, Canada
Attention: President
Facsimile: (514) 875-6246
3
with a copy to:
McCarthy Tetrault
Le Windsor
1170 Peel Street
Montreal, Quebec
H3B 4S8
Attention: Peter S. Martin
Facsimile: (514) 397-4260
As to the BioMarin Group:
BioMarin Pharmaceutical, Inc.
371 Bel Marin Keys, Suite 210
Novato, California, U.S.A. 94949
Attention: Raymond W. Anderson
Facsimile: (415) 382-7889
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California 90071-2371
Attention: Siobhan McBreen Burke
Facsimile: (213) 627-0705
Messrs. Cassels Brock & Blackwell LLP
Scotia Plaza, Suite 2100
40 King Street West
Toronto, Ontario, Canada
with a copy to:
Attention: Mark Bennett
Facsimile Number: (416) 350-6933
Any party may, by notice given hereunder, designate any further or different
address to which subsequent notices or other communications shall be sent.
4
b. Adequate Consideration. Each of the Members of the
IBEX Group and the BioMarin Group acknowledges and agrees that adequate
consideration has been given for the covenants and agreements contained herein.
Each of the Members of the IBEX Group hereby irrevocably waives all rights to
challenge, object to or contest the adequacy of the consideration provided for
the covenants and agreements contained herein.
c. Waiver of Breach. The waiver by any of the members of
the BioMarin Group of a breach of any provision of this Agreement by any of the
Members of the IBEX Group shall not operate or be construed as a waiver of any
subsequent breach by such Member of the IBEX Group. No waiver of any term or
provision of this Agreement, or any breach thereof, by any party hereto shall be
deemed a waiver of such term or provision, or breach thereof, by any other party
hereto.
d. Successors and Assigns. The provisions of this
Agreement shall be binding upon the successors and permitted assigns of each
party hereto; provided, however, that each of the Members of the IBEX Group
shall not, directly or indirectly, transfer or assign any of their rights or
obligations hereunder in whole or in part without the prior written consent of
the other parties hereto, and any such transfer or assignment without said
consent shall be void, ab initio.
e. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the laws of conflicts of
law) of the State of Delaware, United States of America.
f. Controversy; Venue. In the event of any controversy,
claim or dispute among the parties arising out of or relating to this Agreement,
such controversy, claim or dispute may be tried solely in the courts of the
State of California for the County of San Francisco or in the United States
Federal District Court for the Northern District of California, as any party may
elect, and the parties hereto irrevocably consent to the exclusive jurisdiction
and venue of such courts. The parties irrevocably waive any objection to such
jurisdiction and irrevocably waive the right to seek dismissal or transfer on
the grounds of lack of in personam jurisdiction, improper venue, forum non
conveniens or similar grounds and agree that, in addition to any other manner
permitted by law, service of process of any such court may be made upon the IBEX
Group and the BioMarin Group by personal delivery, or by mailing certified or
registered mail, return receipt requested, to the address set forth in Section
5(a) hereof.
g. Modification. This Agreement may be modified, changed,
amended or supplemented only by a written agreement signed by all parties
hereto.
h. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument.
5
IN WITNESS WHEREOF, each party has caused this Non-Competition
Agreement to be executed by its duly authorized officer as of the day and year
first above written.
MEMBERS OF THE IBEX GROUP:
IBEX TECHNOLOGIES INC.
By: ____________________________
Name: ____________________________
Title: ____________________________
IBEX PHARMACEUTICALS INC.
By: ____________________________
Name: ____________________________
Title: ____________________________
TECHNOLOGIES IBEX R & D INC.
By: ____________________________
Name: ____________________________
Title: ____________________________
IBEX TECHNOLOGIES LLC
By: ____________________________
Name: ____________________________
Title: ____________________________
IBEX TECHNOLOGIES CORP.
By: ____________________________
Name: ____________________________
Title: ____________________________
[Signatures continued on next page]
6
BIOMARIN GROUP:
BIOMARIN PHARMACEUTICAL INC.
By: _____________________________
Name: _____________________________
Title: _____________________________
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
By: _____________________________
Name: _____________________________
Title: _____________________________
BIOMARIN ENZYMES INC.
By: ____________________________
Name: ____________________________
Title: ____________________________
7
Schedule 12.1(p)
----------------
THIS TERMINATION AGREEMENT made as of the _________________ day of
____________________, 2001.
AMONG:
BIOMARIN PHARMACEUTICAL INC.
a corporation incorporated pursuant to the laws of Delaware
("BioMarin")
OF THE FIRST PART
- and -
BIOMARIN ENZYMES INC.
a corporation incorporated pursuant to the laws of Delaware
("BioMarin US")
OF THE SECOND PART
- and -
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
a corporation incorporated pursuant to the laws of Nova Scotia
OF THE THIRD PART
- and -
IBEX TECHNOLOGIES INC.
a corporation incorporated pursuant to the laws of Canada
("IBEX")
OF THE FOURTH PART
- and -
IBEX PHARMACEUTICALS INC.
a corporation incorporated pursuant to the laws of Canada
("IBEX Pharma")
OF THE FIFTH PART
- and -
-2-
IBEX TECHNOLOGIES LLC
a limited liability company organized under the laws of Delaware
("IBEX LLC")
OF THE SIXTH PART
- and -
IBEX TECHNOLOGIES CORP.
a corporation incorporated pursuant to the laws of Delaware
("IBEX Corp.")
OF THE SEVENTH PART
- and -
TECHNOLOGIES IBEX R&D INC.
a corporation incorporated pursuant to the laws of the
Province of Quebec
("IBEX R&D")
OF THE EIGHTH PART
WHEREAS the parties hereto, exclusive of BioMarin US executed and delivered a
Canadian asset purchase agreement dated as of October o, 2001 (the
"Canadian Purchase Agreement");
AND WHEREAS the parties hereto, exclusive of BioMarin NS executed and delivered
a U.S. asset purchase agreement dated as of October o, 2001 (the "U.S. Purchase
Agreement");
AND WHEREAS one of the conditions set forth in each of the Canadian Purchase
Agreement and the U.S. Purchase Agreement is the execution and delivery by the
parties hereto of an agreement terminating all Contracts among the members of
the IBEX Group and their Affiliates pertaining to, the Canadian Assets, the
Worldwide Assets, the IBEX Pharma Canadian Business and the IBEX Group Worldwide
Business and the parties hereto are therefore desirous of entering into this
Agreement;
AND WHEREAS captalized terms not defined herein shall have the meanings ascribed
thereto in the Canadian Purchase Agreement and the U.S. Purchase Agreement, as
the case may be;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants, agreements and premises herein contained and for other good and
-3-
valuable consideration (the receipt and sufficiency whereof being hereby
acknowledged by each Party), the Parties hereto do hereby covenant and agree as
follows:
1. GENERAL
-------
1.1 Gender and Extended Meanings. In this Agreement words and personal
pronouns relating thereto shall be read and construed as the number and gender
of the party or parties referred to in each case require and the verb shall be
construed as agreeing with the required word and pronoun. For greater certainty
and without limitation, in this Agreement the word "shall" has the same meaning
as the word "will".
1.2 Section Headings. The division of this Agreement into sections is for
the convenience of reference only and shall not effect the interpretation or
construction of this Agreement.
2. Termination Provision
---------------------
2.1 Termination. Each of the members of the IBEX Group, for and on their
own behalf and on behalf of their respective Affiliates do hereby jointly and
severally agree that without any further or other act or formality on the part
of any Person, all Contracts among any of the members of the IBEX Group and/or
their respective Affiliates pertaining to the Canadian Assets, the Worldwide
Assets, the IBEX Pharma Canadian Business and/or the IBEX Group Worldwide
Business including for greater certainty and without limitation, those set forth
on Schedule 2.1(c) to the Canadian Purchase Agreement and Schedules 2.1(c) and
2.3(c) of the U.S. Purchase Agreement, ,shall be terminated and of no further
force and effect and, subject to the Canadian Purchase Agreement and the U.S.
Purchase Agreement, no rights or obligations with respect thereto shall exist
from and after the date hereof to the exclusion specifically, of any and all
confidentiality agreements that any of the members of the IBEX Group and their
respective Affiliates may have executed and delivered with respect thereto.
3. MISCELLANEOUS
-------------
3.1 Notice. All notices, requests, demands or other communications by the
Parties required or permitted to be given by one Party to another shall be given
in writing by personal delivery, telecopy or by registered or certified mail,
postage prepaid, addressed, telecopied or delivered to such other Party as
follows:
(a) if to the members of the IBEX Group in c/o of:
5485 Pare
Montreal, Quebec
H4P 1P7
Attention: President
----------
Fax No.: (514) 344-8827
-4-
with a copy to:
McCarthy Tetrault
Le Windsor, 1170 rue Peel
Montreal, Quebec H3B 4S8
Attention: Peter S. Martin
Fax No.: (514) 875-6246
(b) if to the members of the BioMarin Group, to:
371 Bel Marin Keys Boulevard, Suite 210
Novato, California
94949 USA
Attention: Raymond W. Anderson
Fax No.: (415) 382-7889
with a copy to:
Messrs. Cassels Brock & Blackwell LLP
Scotia Plaza, Suite 2100
40 King Street West
Toronto, Ontario M5H 3C2
Attention: Mark Bennett
Fax No.: (416) 360-8877
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California
90071-2371 USA
Attention: Siobhan Burke
Fax No.: (213) 627-0705
or at such other address or telecopier number as may be given by any of them to
the others in writing from time to time and such notices, requests, demands or
other communications shall be deemed to have been received when delivered, if
personally delivered, on the date telecopied (with receipt confirmed) if
telecopied and received at or prior to 5:00 p.m. local time and, if not, on the
next Business Day, and if mailed, on the date received as certified.
-5-
3.2 Further Assurances. The Parties shall sign such other papers, cause
such meetings to be held, resolutions passed and by-laws enacted and exercise
their vote and influence, do and perform and cause to be done and performed such
further and other acts and things as may be necessary or desirable in order to
give full effect to this Termination Agreement and every part hereof.
3.3 Laws. This Agreement shall be governed by the laws of the State of
Delaware and the Parties hereby irrevocably attorn to the Courts of the State of
California, sitting in San Francisco, California.
3.4 Time of the Essence. Time shall be of the essence of this Termination
Agreement and of every part hereof and no extension nor variation of this
Termination Agreement shall operate as a waiver of this provision.
3.5 Entire Agreement. This Termination Agreement constitutes the entire
agreement among the Parties with respect to all of the matters herein. This
Termination Agreement supersedes any and all agreements, understandings and
representations made among the Parties prior to the date hereof. This
Termination Agreement shall not be amended except by a memorandum in writing
signed by all of the Parties and any amendment hereof shall be null and void and
shall not be binding upon any Party which has not given its consent as
aforesaid.
3.6 Assignment. No Party may assign this Termination Agreement or any part
hereof without the prior written consent of the other Parties which may be
unreasonably withheld. Subject to the foregoing, this Termination Agreement
shall enure to the benefit of and be binding upon the Parties and their
respective successors and permitted assigns, but no other Person.
3.7 Invalidity. In the event that any of the covenants, representations and
warranties or any portion of them contained in this Termination Agreement are
unenforceable or are declared invalid for any reason whatsoever, such
unenforceability or invalidity shall not affect the enforceability or validity
of the remaining terms or portions thereof contained in this Termination
Agreement and such unenforceable or invalid, covenant, representation and
warranty or covenant or portion thereof shall be severable from the remainder of
this Agreement.
3.8 Counterpart. This Termination Agreement may be executed in several
counterparts, each of which so executed shall be deemed to be an original and
such counterparts when taken together shall constitute one and the same original
agreement which shall be binding on the Parties.
3.9 Language. The Parties acknowledge and confirm that they have requested
that this Agreement as well as all notices and other documents contemplated
hereby be drawn up in the English language. Les parties aux presentes
reconnaissent et confirment qu'elles ont convenu que la presente convention
ainsi que tous les avis et documents qui s'y rattachent soient rediges dans la
langue anglaise.
-6-
IN WITNESS WHEREOF the Parties have duly executed this Termination Agreement as
of the date and year first above written.
BIOMARIN PHARMACEUTICAL INC.
Per:
---------------------------------------------
BIOMARIN ENZYMES INC.
Per:
---------------------------------------------
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
Per:
---------------------------------------------
IBEX TECHNOLOGIES INC.
Per:
---------------------------------------------
IBEX PHARMACEUTICALS INC.
Per:
---------------------------------------------
IBEX TECHNOLOGIES LLC
Per:
---------------------------------------------
IBEX TECHNOLOGIES CORP.
Per:
---------------------------------------------
TECHNOLOGIES IBEX R&D INC.
Per:
---------------------------------------------
Schedule 12.1(q)
----------------
SERVICES, EQUIPMENT AND SPACE SHARING AGREEMENT
This SERVICES, EQUIPMENT AND SPACE SHARING AGREEMENT (this
"Agreement") is entered into as of this __ day of October, 2001 by and among
IBEX Technologies Inc., a Canadian corporation ("IBEX"), IBEX Pharmaceuticals
Inc., a Canadian corporation ("IBEX Pharma"), IBEX Technologies LLC, a Delaware
limited liability company ("IBEX LLC"), IBEX Technologies Corp., a Delaware
corporation ("IBEX Corp.") and TECHNOLOGIES IBEX R&D TECHNOLOGIES INC., a
corporation incorporated pursuant to the laws of the Province of Quebec ("IBEX
R&D," and, together with IBEX, IBEX Pharma, IBEX LLC and IBEX Corp., the "IBEX
Group"), on the one hand, and BIOMARIN PHARMACEUTICAL INC., a Delaware
corporation ("BioMarin"), and BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY, a
corporation incorporated pursuant to the laws of the Province of Nova Scotia
("BioMarin NS," and, together with BioMarin, "BioMarin Group"), on the other
hand.
RECITALS
--------
A. WHEREAS, the IBEX Group and the BioMarin Group have entered into
that certain Canadian Asset Purchase Agreement (the "Canadian Purchase
Agreement") dated as of October __, 2001.
B. WHEREAS, the IBEX Group, BioMarin and BioMarin Enzymes Inc., a
Delaware corporation, have entered into that certain United States Asset
Purchase Agreement (the "U.S. Purchase Agreement") dated as of October __, 2001.
C. WHEREAS, in connection with the transactions contemplated by the
Canadian Purchase Agreement and the U.S. Purchase Agreement, the IBEX Group and
the BioMarin Group desire to share certain laboratory equipment and leased
laboratory facilities.
D. WHEREAS, it is a covenant of the transactions contemplated by the
Canadian Purchase Agreement that the IBEX Group and the BioMarin Group enter
into this Agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants contained in this Agreement, and 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:
Section 1. Space.
-----
1.1 Allocated Space. During the Term, the IBEX Group shall
grant the BioMarin Group exclusive and unrestricted access, occupancy and use of
the allocated portion of the IBEX Group laboratory facilities located at 5485
Pare Street, Town of Mount Royal, Quebec (the "IBEX Facility") as set forth on
Exhibit A attached hereto which sets forth the allocation method and the
allocation percentage (the "Allocated Space"). The parties agree that, upon
sixty (60) days' advance notice, the parties shall be able to adjust the amount
of Allocated Space. Subject to the terms of this Agreement, the portions of the
IBEX Facility other than the Allocated Space shall be intended for the
nonexclusive, common and joint use and occupancy of the IBEX Group and the
BioMarin Group.
1.2 Third Party Consents. The IBEX Group shall obtain any
and all consents, from the landlord for the IBEX Facility or otherwise,
necessary for the access, occupancy and use of the IBEX Facility by the BioMarin
Group pursuant to this Agreement.
Section 2. Equipment.
---------
2.1 Access. During the Term the IBEX Group shall grant the
BioMarin Group at least fifty percent (50%) access to all general laboratory
equipment and utilities, excluding diagnostic production equipment, in the IBEX
Facility as set forth on Exhibit B attached hereto ("Lab Equipment"). Each
party's employees shall be responsible for cleaning and maintaining any Lab
Equipment used by them during the Term.
Section 3. Employees.
---------
3.1 BioMarin Employees' Access. The BioMarin Group shall
have the right to employ all scientific and other personnel that it deems
necessary to support its operations at the IBEX Facility, up to a maximum of
twenty (20) employees. Employees and representatives of the BioMarin Group
working at the IBEX Facility shall have the same access rights and privileges to
the IBEX Facility and Lab Equipment as are available to the employees of the
IBEX Group located at the IBEX Facility and using the Lab Equipment.
3.2 IBEX Group Employees' Services. The IBEX Group shall
make available to the BioMarin Group, as and when required by the BioMarin
Group, the services of certain of their respective employees, at pre-set hourly
rates, which employees and rates are set forth in Exhibit C attached hereto.
2
Section 4. Intellectual Property; Confidentiality.
--------------------------------------
4.1 Trademarks, etc. Neither party shall use the other
party's tradenames, trademarks or the names of the other party's employees
without securing the prior written consent of the other party, which consent may
be unreasonably withheld.
4.2 Ownership. Each party retains sole ownership of its
respective tradenames, trademarks, patents, and other intellectual property and
no license thereto shall be deemed granted by either party to the other for such
intellectual property owned by the parties prior to this Agreement and any such
intellectual property as may be developed or discovered by either party during
the Term.
4.3 Confidential Information. During the Term and for a
period of five (5) years thereafter each party shall keep confidential all
proprietary or confidential information (the "Confidential Information")
obtained from the other party or its representatives in connection with the
other party and this Agreement. The term "Confidential Information" shall not
include any information which: (i) is or becomes generally available to the
public other than as a result of a disclosure by the receiving party or the
representatives; (ii) becomes known to the receiving party or the
representatives on a non-confidential basis from a source (other than the
disclosing party) which is not known to the receiving party to be bound to the
disclosing party by a legal, contractual or fiduciary obligation; (iii) was
known to the receiving party or the representatives on or prior to the date
hereof; or (iv) was independently discovered or developed by the receiving party
without reference to any of the Confidential Information. If this Agreement is
terminated, each party shall return to the other party all Confidential
Information in its possession regarding the other party and all copies and
extracts thereof or with the consent of the other party shall destroy all such
Confidential Information and copies and extracts and shall deliver to the other
party evidence of destruction of such Confidential Information and copies and
extracts as such other party may reasonably request. For the purpose of this
Section 4.3, the members of the BioMarin Group shall be one party and the
members of the IBEX Group shall be one party.
Section 5. Payment.
-------
5.1 Space Fee. The IBEX Group shall charge the BioMarin
Group its share of the IBEX Group's monthly costs in operating the IBEX Facility
(the "Space Fee"), which Space Fee and the underlying computations for the Space
Fee are set forth in the Allocated Space on Exhibit D attached hereto. The
parties agree that, upon sixty (60) days' advance notice, the parties shall be
able to adjust the amount of the Space Fee based upon any adjustment in the
Allocated Space. The BioMarin Group shall pay such amounts to IBEX within five
(5) days following the end of the month for which such costs are incurred, and
IBEX shall apply such payments to the payment of any rent due the landlord for
the IBEX Facility. The IBEX Group covenants and agrees that it shall be solely
3
responsible for paying any and all amounts due under the lease with the landlord
of the IBEX Facility. The IBEX Group hereby indemnifies, and holds the BioMarin
Group harmless, from and against any liabilities related to failure to pay such
amounts.
5.2 Equipment Fee. The BioMarin Group shall pay the IBEX
Group a monthly fee (the "Equipment Fee") in the amount of fifty percent (50%)
of the service and maintenance costs of the Lab Equipment that has been made
available to the BioMarin Group in the preceding month. The BioMarin Group shall
pay to IBEX the Equipment Fee at the same time as the Space Fee, and IBEX shall
apply such payments to the payment of any amounts due the equipment lessor for
the Lab Equipment. The IBEX Group covenants and agrees that it shall be solely
responsible for paying any and all amounts due under the equipment lease with
the equipment lessor for the Lab Equipment. The IBEX Group hereby indemnifies,
and holds the BioMarin Group harmless, from and against any liabilities related
to failure to pay such amounts.
5.3 Services Fee. In consideration of any services provided
in accordance with Section 3.2, the BioMarin Group will pay the IBEX Group the
amounts calculated in accordance with Exhibit C (the "Services Fee"). Any such
Services Fees shall be paid monthly within fifteen (15) days after receipt of an
invoice from IBEX.
Section 6. Term; Termination.
-----------------
6.1 Term. This Agreement shall be effective as of the date
first set forth above and shall continue for an initial period of twelve (12)
months (the "Term"), unless terminated earlier pursuant to this Section 6.
6.2 Termination. This Agreement and the obligation of
either party to perform or observe any of its covenants or agreements hereunder
may be terminated at any time during the term hereof by the BioMarin Group upon
delivery of sixty (60) days advance written notice of such termination by the
BioMarin Group to the IBEX Group.
6.3 Consequences of Termination. Upon termination of this
Agreement pursuant to this Section 6, the IBEX Group shall be entitled to
receive any and all Space Fees, Equipment Fees and Services Fees hereunder due
the IBEX Group with respect to all periods up to the date of such termination.
Section 7. General Provisions.
------------------
7.1 Relationship of the Parties. The relationship of the
parties hereto is not, and shall not be construed or interpreted to be, a
partnership, joint venture or agency.
7.2 Notice. All notices, requests and other communications
to any party shall be in writing (including telecopy or similar writing) and
shall be given,
4
(a) If to the BioMarin Group:
371 Bel Marin Keys Boulevard, Suite 210
Novato, California 94949, U.S.A.
Attention: Raymond W. Anderson
Facsimile: (415) 382-7889
with a copy to:
Messrs. Cassels Brock & Blackwell LLP
Scotia Plaza, Suite 2100
40 King West
Toronto, Ontario M5H 3C2, Canada
Attention: Mark Bennett
Facsimile: (416) 350-6933
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California 90071-2371
Attention: Siobhan McBreen Burke
Facsimile: (213) 627-0705
(b) If to the IBEX Group:
IBEX Technologies Inc.
5485 Pare Street
Montreal, Quebec H4P 1P7, Canada
Attention: President
Facsimile: (514) 875-6246
with a copy to:
McCarthy Tetrault
Le Windsor, 1170 rue Peel
Montreal, Quebec H313 4S8, Canada
Attention: Peter Martin
Facsimile: (514) 875-6246
5
or to such other address or telecopier number as such party
may hereafter specify for the purpose of notice to the other parties. Any such
notice, request or other communication shall be deemed to have been given and
received on the day on which it is delivered or telecopied (or, if such day is
not a business day in the Province of Quebec or the United States of America or
if the notice or other communication is not telecopied during business hours, at
the place of receipt, on the next following business day); provided that if
notice or other communication is given by telecopy, such notice or communication
shall also be given by certified mail or by overnight courier.
7.3 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
7.4 Amendment. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto.
7.5 Governing Law. This Agreement shall be governed in all
respects, including validity, interpretation and effect, by the internal laws of
the Province of Quebec without giving effect to the principles of conflict of
laws thereof, except the laws of the state of incorporation of a party shall
govern its internal corporate affairs. The parties hereby consent to the
jurisdiction of the courts of the Province of Quebec, sitting in the district of
Montreal, for the resolution of all disputes arising out of or relating to this
Agreement.
7.6 Counterparts. This Agreement and any other agreement
delivered pursuant hereto may be executed in two or more counterparts and by
different parties in separate counterparts (including by facsimile). All of such
counterparts shall constitute one and the same agreement and shall become
effective when one or more counterparts of this Agreement have been signed by
each party (including by facsimile) and delivered to the other party. 7.7
Severability. If any term or provision of this Agreement or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be
invalid or unenforceable, such term or provision shall be in effect as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable such term or provision in any other
jurisdiction, the remaining terms and provisions of this Agreement or the
application of such terms and provisions to circumstances other than those as to
which it is held invalid or unenforceable.
7.8 Successors and Permitted Assigns. This Agreement shall
be binding upon and enure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, that no party
may assign either this Agreement or any of its rights, interests or obligations
hereunder in whole or in part without the prior written consent of the other
parties hereto, and any such transfer or assignment without said consent shall
be void, ab initio. Subject to the immediately preceding sentence, this
6
Agreement is not intended to benefit and shall not run to the benefit of or be
enforceable by, any other person or entity other than the parties thereto and
their permitted successors and assigns.
7
[Signature Page To Services, Equipment and Space Sharing Agreement]
IN WITNESS WHEREOF, each of the parties hereto has executed
this Agreement, or has caused this Agreement to be executed on its behalf by a
representative duly authorized, all as of the date first above set forth.
THE IBEX GROUP: THE BIOMARIN GROUP:
IBEX TECHNOLOGIES INC. BIOMARIN PHARMACEUTICAL INC.
By: ______________________
Name: ______________________ By: ______________________
Title: ______________________ Name: ______________________
Title: ______________________
IBEX PHARMACEUTICALS INC. BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
By: ______________________
By: ______________________ Name: ______________________
Name: ______________________ Title: ______________________
Title: ______________________
IBEX TECHNOLOGIES LLC
By: ______________________
Name: ______________________
Title: ______________________
IBEX TECHNOLOGIES CORP.
By: ______________________
Name: ______________________
Title: ______________________
TECHNOLOGIES IBEX R & D INC.
By: ______________________
Name: ______________________
Title: ______________________
8
Schedule 12.1(q)
----------------
EXHIBIT A
---------
Allocated Space
Schedule 12.1 (q) Exhibit A - Allocated Space 1/2
------------------------------------------------------------------------------------------------------------------------------------
First (Lab) Floor
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
ALLOCATION METHOD ALLOCATION %
------------------------------------------------------------------------------------------------------------------------------------
TOTAL Unit Denom IBEX HSN BM BEX HSN BM IBEX HSN BM
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Reception 544 PP 19 7 4 8 37% 21% 42% 200 115 229
-----------------------------------------------------------------------------------------------------------------------------------
Stockroom 190 PP 8 2 - 6 25% 0% 75% 48 0 143
-----------------------------------------------------------------------------------------------------------------------------------
Library 323 PP 8 2 - 6 25% 0% 75% 81 0 242
-----------------------------------------------------------------------------------------------------------------------------------
Stairs, corridors, washrooms, etc. 1908 PP 8 2 - 6 25% 0% 75% 477 0 1431
-----------------------------------------------------------------------------------------------------------------------------------
Sub-total: Common 2965 NA NA NA NA NA NA NA NA 806 115 2045
-----------------------------------------------------------------------------------------------------------------------------------
Fermentation laboratory 475 TM 475 0.50 - 0.50 50% 0% 50% 238 0 238
-----------------------------------------------------------------------------------------------------------------------------------
Production laboratory 240 TM 240 0.75 - 0.25 0.75 0% 25% 180 0 60
-----------------------------------------------------------------------------------------------------------------------------------
Shared water/services area 234 PP 8 2 - 6 0.25 0% 75% 59 0 176
-----------------------------------------------------------------------------------------------------------------------------------
Glassware storage 240 PP 8 2 - 6 0.25 100% 75% 60 0 180
-----------------------------------------------------------------------------------------------------------------------------------
Shared equipment - freezers 696 # 6 4 - 2 67% 0% 33% 464 0 232
-----------------------------------------------------------------------------------------------------------------------------------
Machinery room (steam, compressor,
chiller) 155 PP 8 2 - 6 25% 0% 75% 39 0 116
-----------------------------------------------------------------------------------------------------------------------------------
Main lab 2444 SF 2444 0.50 - 0.50 0.50 0% 50% 1222 0 1222
-----------------------------------------------------------------------------------------------------------------------------------
Radioactivity laboratory 84 SF 84 0.25 - 0.75 25% 0% 75% 21 0 63
-----------------------------------------------------------------------------------------------------------------------------------
Cell Biology 368 SF 368 - - 1.00 0% 0% 100% 0 0 368
-----------------------------------------------------------------------------------------------------------------------------------
Darkroom 64 SF 64 1.00 - - 100% 0% 0% 64 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Sub-total: Lab Area 5000 NA NA NA NA NA NA NA NA 2346 0 2654
-----------------------------------------------------------------------------------------------------------------------------------
Denholm, Dr. Beth office north-east 127 SF 127 - - 1.00 0% 0% 100% 0 0 127
-----------------------------------------------------------------------------------------------------------------------------------
Eggimann, Dr. Bernhard (office
north-east) 180 SF 180 - - 1.00 0% 0% 100% 0 0 180
-----------------------------------------------------------------------------------------------------------------------------------
Shao, Dr. Z. Closed office (126) -
main lab annex 96 SF 96 - - 1.00 0% 0% 100% 0 0 96
-----------------------------------------------------------------------------------------------------------------------------------
Production - closed office -
north-west 72 SF 72 1.00 - - 100% 0% 0% 72 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Open Offices - production 131 SF 131 1.00 - - 100% 0% 0% 131 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Open offices - main-west 597 SF 597 - - 1.00 0% 0% 100% 0 0 597
-----------------------------------------------------------------------------------------------------------------------------------
Open offices - main-east 288 SF 288 - - 1.00 0% 0% 100% 0 0 288
-----------------------------------------------------------------------------------------------------------------------------------
Spare Closed office (127/128) -
main lab annex 108 SF 108 1.00 - - 100% 0% 0% 108 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Spare Closed office (129) -
main lab annex 108 SF 108 1.00 - - 100% 0% 0% 108 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Spare - closed office - north-west 72 SF 72 1.00 - - 100% 0% 0% 72 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Spare Head office north-east 90 SF 90 1.00 - - 100% 0% 0% 90 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Sub-total: Offices 1869 NA 1869 NA NA NA NA NA NA 581 0 1288
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Sub-total: First Floor 9834 NA NA NA NA NA NA NA NA 3732 115 5987
------------------------------------------------------------------------------------------------------------------------------------
Schedule 12.1 (q) Exhibit A - Allocated Space 2/2
------------------------------------------------------------------------------------------------------------------------------------
Schedule X-(i)-Space Allocation Methodology: 5485 Pare Street, Town of Mount Royal, Quebec Sep-21-B
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Second Floor
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
ALLOCATION METHOD ALLOCATION %
------------------------------------------------------------------------------------------------------------------------------------
TOTAL Unit Denom IBEX HSN BM BEX HSN BM IBEX HSN BM
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Stairs, open space 530 PP 19 7 4 8 37% 21% 42% 195 112 223
-----------------------------------------------------------------------------------------------------------------------------------
Storage Area 3770 PP 19 7 4 8 37% 21% 42% 1389 794 1587
-----------------------------------------------------------------------------------------------------------------------------------
Kitchen 480 PP 19 7 4 8 37% 21% 42% 177 101 202
-----------------------------------------------------------------------------------------------------------------------------------
Bathrooms, Electric, 1300 PP 19 7 4 8 37% 21% 42% 479 274 547
-----------------------------------------------------------------------------------------------------------------------------------
Board Room 540 PP 19 7 4 8 37% 21% 42% 199 114 227
-----------------------------------------------------------------------------------------------------------------------------------
Server 168 PP 19 7 4 8 37% 21% 42% 62 35 71
-----------------------------------------------------------------------------------------------------------------------------------
Baehr, Paul 280 PP 1 1 - - 100% 0% 0% 280 0 0
-----------------------------------------------------------------------------------------------------------------------------------
CFO (Vacant) 294 PP 1 1 - - 100% 0% 0% 294 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Bergeron, Claire 168 PP 1 1 - - 100% 0% 0% 168 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Delis, Claire 168 PP 1 1 - - 100% 0% 0% 168 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Galbraith, Susan 120 PP 1 1 - - 100% 0% 0% 120 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Filing cabinets 150 PP 1 1 - - 100% 0% 0% 150 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Hecht, T. 528 PP 1 - 1 - 0% 100% 0% 0 528 0
-----------------------------------------------------------------------------------------------------------------------------------
Hecht, T (2) 80 PP 1 - 1 - 0% 100% 0% 0 80 0
-----------------------------------------------------------------------------------------------------------------------------------
Hecht, R. 196 PP 1 - 1 - 0% 100% 0% 0 196 0
-----------------------------------------------------------------------------------------------------------------------------------
Bienenstock, Harvey 168 PP 1 - 1 - 0% 100% 0% 0 168 0
-----------------------------------------------------------------------------------------------------------------------------------
Gervais, Micheline 120 PP 1 - 1 - 0% 100% 0% 0 120 0
-----------------------------------------------------------------------------------------------------------------------------------
Haemosan filing 30 PP 1 - 1 - 0% 100% 0% 0 30 0
-----------------------------------------------------------------------------------------------------------------------------------
Heft, Robert 280 PP 1 - - 1 0% 0% 100% 0 0 280
-----------------------------------------------------------------------------------------------------------------------------------
Frampton, Donna 120 PP 1 - - 1 0% 0% 100% 0 0 120
-----------------------------------------------------------------------------------------------------------------------------------
Spare 120 PP 1 1 - - 100% 0% 0% 120 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Spare modular 168 PP 1 1 - - 100% 0% 0% 168 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Spare modular 100 PP 1 1 - - 100% 0% 0% 100 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Sub-total: 2nd Floor 9878 NA NA NA NA NA NA NA NA 4069 2551 3258
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Total space usage 19712 NA NA NA NA NA NA NA NA 7801 2666 9245
-----------------------------------------------------------------------------------------------------------------------------------
Schedule 12.1(q)
----------------
EXHIBIT B
---------
Lab Equipment
Schedule 12.1 (q) Exhibit B- Shared Equipment-Sep-24 Page 1 of 3
---------------------------------------------------------------------------------------------------------------
Access to the Scheduled Equipment will be provided to BioMarin, for 50% of the
time, as required, free of charge, (subject only to recovery of 50% of 3rd party
maintenance contracts and repairs going forward) for the duration of the
BioMarin sublease of the Pare facility (to a maximum of 12 months).
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Leasehold/ General
Service DX Lab
Equipment Equipment Production Equipment
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
autoclave Amsco X
autoclave Barnstead X
Bedco Lab Hotte & Cabinet de solvents X
Bedcolab hood and cabinet X
cabinet double X
cabinet glass sliding doors X
Chilling water system X
Compressor motor & pump X
dishwasher X
dishwasher Labconco X
drawers (16), sink and double cabin X
drawers (4) X
flow hood Laminar X
Klenzoid chemical pump X
Nanopure - Elga Maxima X
oven Fisher X
Price Pump for boiler water feed X
Steam Boiler X
tissue hood X
tissue hood Nuaire X
tissue hood Nuaire X
UV Steriliser X
Vacuum Pump X
water pump X
water system Nanopure X
---------------------------------------------------------------------------------------------------------------
analyzer for biochemistry X
Biofuge Haraeus instr. Baxter X
Biopilot - computer upgrade Unicorn X
Biopilot - unite de separation X
Biopilot & controller, screen, keyboard X
biosample X
cabinets (storage, beige) X
chairs (4) X
circulator X
conductivity meter X
Diluter Gilson* X
fermenter Biostat ED X
fermenter Chemap X
fermenter table Chemap X
fraction collector X
Freeze Dryer* X
Freezer Baxter T30C-142299-UC-70 degrees C* X
glucose meter X
Homogenizer X
incubator shaker X
McIntosh Quadra 800 X
microscope Olympus BH-2 X
mixer Fisher Vortex Genie X
pH meter X
Prima 600 - Masspect X
pump Master Flex Easy Load X
refrigerator Viking X
scale Sartorious X
shelves (12) X
spectrophotometer Beckman X
stirrer/hot plate X
table X
table (3) X
table (moveable work table) X
ultrasonic bath X
---------------------------------------------------------------------------------------------------------------
ACT machine Hemochron 800 X
ACT machine Medtronic X
agitator magnetic - MR1 X
agitator magnetic - RTC X
all chairs for Molecular X
Bedco Lab Hotte & Cabinet d'acides X
bench for 2 people (incl instruments) X
bench for lab X
bench for lab X
bench for lab X
beta counter and printer X
Biocad,fraction collector, keyboard.screen, printer X
Biodot X
biofuge 15 benchtop X
Biopilot X
burner Olympus X
cabinet (2) X
cabinet steel X
cabinet steel X
cabinets industrial metal X
camera system Polaroid X
cell counter X
centrifuge #1 X
centrifuge #2 X
centrifuge (mini) X
centrifuge Baxter X
Schedule 12.1 (q) Exhibit B- Shared Equipment-Sep-24 Page 2 of 3
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Leasehold/ General
Service DX Lab
Equipment Equipment Production Equipment
---------------------------------------------------------------------------------------------------------------
centrifuge Baxter table top X
centrifuge Beckman X
centrifuge Biofuge 15 X
centrifuge Biofuge Baxter 15 X
centrifuge IEC clinical X
chairs (2) X
circulator Polystat - could be 1217 now X
circulator Waterbath Polystat X
clinical rotator Fisher Scientific X
clinical rotator Fisher Scientific X
clinical rotator Fisher Scientific X
coagulation timer MLA X
conductivity meter X
conductivity meter Accumet X
conductivity meter Horiba X
container azote liquid X
container radioactive X
container radioactivity X
container solid waste X
Corning pH Meter X
Corning Stirrer/Hot Plate - 575 W X
DNA sequencers X
dri-bath thermolyme X
dri-bath thermolyne X
dri-bath thermolyne X
dri-bath Thermolyne X
dry bath Boehel X
dry ice container X
Electrapette Matrix X
electric transferer X
electrophoresis box large protein X
electrophoresis boxes X
electrophoresis system BioRad X
electrophoresis system Capillary Dionex X
Environmental Chamber X
ESSC filtration X
evier de laboratoire (profond) X
FIGE X
filtration unit Watson Marlow pump X
FPLC system X
FPLC system stand X
freezer X
freezer Coldstream X
freezer Danby X
freezer Forma Scientific -70 degrees C X
freezer Kenmore X
freezer Kenmore X
freezer Kenmore -20 degrees C X
freezer Kenmore -20 degrees C X
freezer REVCO -70 degrees C X
fryer Moulinex X
Gamma counter X
garbage pail X
gel boxes X
gel boxes sequencing X
gel dryer Savant Slab X
gel dryer Savant Slab & refrigerated condensation trap X
haemoscope coagulation analyzer X
heat sealer X
heater Baxter X
heater multi block X
heater multi block X
heater multi block X
heater multi block X
Hepcon HMS Medtronic Hemotec X
homogenisateur Rannie & Charriot X
HPLC 600S controller X
HPLC system X
HPLP X
hybridization oven X
ice maker Scotsman X
imaging densitometer BioRad X
incubator 30 degrees C X
incubator 37 degrees C X
incubator benchtop Bellco X
incubator Nuaire X
incubator Nuaire X
incubator Precision X
incubator Precision gravity convection X
incubator Precision Scientific X
Kratos Analytical Maldi-masspectrophotometer X
liquid waster vacuum X
micropump X
microscope Olympus X
microscope Olympus LH50A X
microscope Olympus RS40X X
microwave Magnasonic X
mini bead beater X
mixer Baxter/Fisher Vortex X
mixer Fisher Vortex Genie X
mixer Hematek Aliquot X
mixer thermolyme X
mixer Vortex Fisher Genie 2 X
mixer vortex Fisher Genie 2 X
Schedule 12.1 (q) Exhibit B- Shared Equipment-Sep-24 Page 3 of 3
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Leasehold/ General
Service DX Lab
Equipment Equipment Production Equipment
---------------------------------------------------------------------------------------------------------------
mixers Baxter vortex X
paper cutter X
pH meter Corning X
pH meter Corning X
pH meter Corning X
pH meter Corning X
pH meter Fisher Scientific X
Phastsystem X
pipettes electronic Eppendorf X
plate reader (Molecular Devices) X
plate reader Rid X
plate washer X
power supply X
power supply Bio Rad X
power supply BioRad X
power supply EC105 X
printer HP Desk Writer C X
printer Thermal X
pulsor BioRad Gene X
pump Cole Palmer X
pump Drives Masterflex X
pump Masterflex X
pump Masterflex X
pump Pharmacia Vacu Gene X
pump Watson Marlow X
recorder 102 X
red light X
refrigerator Baxter Scientific rcu1386aba-sb X
refrigerator Kenmore X
refrigerator Kenmore X
refrigerator Kenmore -20 degrees C X
refrigerator Kenmore 2-8 degrees C X
refrigerator Kenmore 4 degrees C X
refrigerator Kenmore -4 degrees C X
refrigerator Kenmore -4 degrees C X
refrigerator Kenmore enzymes X
Sartorious Scale X
Sartorious Scale X
Sartorious Scale X
scale ATI Cahn X
scale Ohaus precision plus X
scale Sartorious X
scale Sartorious X
scale Sartorious X
scale Sartorious X
sealer X
shaker X
shaker X
shaker (orbital) X
shaker bath X
shaker Lab-Line X
shelving Unit (5 shelves) X
solid state MasterFlex Speed Control X
sonic water bath X
sonicator X
sonicator X
spectrophotometer X
spectrophotometer Beckman X
spectrophotometer Beckman X
spectrophotometer Beckman UV X
spectrophotometer HP Diode Array X
speed vac (big) X
speed vac (small) X
stir plate Fisher Scientific X
stirrer Corning X
stirrer Fisher X
stirrer magnetic Canlab X
stirrer rotator X
stirrer/hot plate Corning X
stirrer/hot plate Corning X
stirrers magnetic X
storage box for fittings X
table X
table X
table X
table X
table marble X
thermal reactor X
thermolyne TempiTronic X
trans blot cell X
transluminator X
Ultra Centrifuge X
UV cord 52 X
versa bath Fisher Scientific X
water bath X
water bath X
water bath X
Water Bath Incubator X
water bath Polystat X
water bath Precision Scientific X
water bath refrigerated X
water bath refrigerator micro cooler X
---------------------------------------------------------------------------------------------------------------
Schedule 12.1(q)
----------------
EXHIBIT C
---------
Services Fee
Schedule 12.1 (q) Exhibit C EmployeesServices Page 1/1
IBEX will make available to BioMarin the service of the following IBEX employees
for 12 months post signing.
----------------------------------------------------------------------------------------------------------------------------------
Salary + Including Annual Hourly Max
Name Function Salary Benefits (1) Overheads Hours Rate Avail
----------------------------------------------------------------------------------------------------------------------------------
XXXXXXXXXXXXXXXX Administration XXXXXXX XXXXXXX XXXXXXX 1770 XXXXXX 25%
XXXXXXXXXXXXX Purchasing XXXXXXX XXXXXXX XXXXXXX 1770 XXXXXX 25%
XXXXXXXXXXXXXXXX Payroll/Budgets XXXXXXX XXXXXXX XXXXXXX 1770 XXXXXX 25%
XXXXXXXXXXXXXXXXXXXXX Fermentation XXXXXXX XXXXXXX XXXXXXX 1770 XXXXXX 50%
XXXXXXXXXXXXXXXXX Fermentation XXXXXXX XXXXXXX XXXXXXXX 1770 XXXXXX 50%
----------------------------------------------------------------------------------------------------------------------------------
(1) Current rate: Rates will be adjusted if compensation rises as a function of the normal course of business.
Schedule 12.1(q)
----------------
EXHIBIT D
---------
Space Fee
Schedule 12.1 (q) Exhibit D- Space Costs Page 1/2
---------------------------
Total annual Cost / sq. ft. Usage BioMarin BioMarin
costs Unit Basis or PP Factor Account Cost/Sq. Ft
------------------------------------------------------------------------------------------------------------------------------------
Facility Costs:
Opex Rent and admin fees $128,994.69 Sq. ft. 19,712 $ 6.54 9,245 $ 60,498.98 $ 6.54
Opex Monthly expense Charges $ 16,921.68 Sq. ft. 19,712 $ 0.86 9,245 $ 7,936.33 $ 0.86
Municipal Taxes $ 11,204.50 Sq. ft. 19,712 $ 0.57 9,245 $ 5,254.95 $ 0.57
Business and water tax $ 13,722.11 Sq. ft. 19,712 $ 0.70 9,245 $ 6,435.72 $ 0.70
Hydro $ 39,964.72 Sq. ft. 19,712 $ 2.03 9,245 $ 18,743.60 $ 2.03
Cleaning / Maintenance $ 14,495.00 Sq. ft. 19,712 $ 0.74 9,245 $ 6,798.21 $ 0.74
Property Insurance $ 15,840.00 Sq. ft. 19,712 $ 0.80 9,245 $ 7,429.02 $ 0.80
Securitas - Alarm monitoring $ 1,920.79 Sq. ft. 19,712 $ 0.10 9,245 $ 900.86 $ 0.10
Kazmat - Ventillation Maintenance $ 2,267.80 Sq. ft. 19,712 $ 0.12 9,245 $ 1,063.61 $ 0.12
Inspections $ 1,194.00 Sq. ft. 19,712 $ 0.06 9,245 $ 559.99 $ 0.06
------------------------------------------------------------------------------------------------------------------------------------
Sub-total Building Costs $246,525.29 Sq. ft. 19,712 $ 12.51 9,245 $115,621.26 $ 12.51
------------------------------------------------------------------------------------------------------------------------------------
Office Services:
Bell lines/Equipment Charges $ 5,640.00 Sq. ft. 19,712 $ 0.29 9,245 $ 2,645.18 $ 0.29
Phone - voice $ 1,050.24 Sq. ft. 19,712 $ 0.05 9,245 $ 492.57 $ 0.05
Long Distance rebate contract $ 684.00 Sq. ft. 19,712 $ 0.03 9,245 $ 320.80 $ 0.03
Canon 6050 Service agreement $ 848.00 Sq. ft. 19,712 $ 0.04 9,245 $ 397.72 $ 0.04
Stamp machine and scale $ 2,701.74 Sq. ft. 19,712 $ 0.14 9,245 $ 1,267.13 $ 0.14
Postage $ 5,170.00 Sq. ft. 19,712 $ 0.26 9,245 $ 2,424.75 $ 0.26
Intersan waste removal $ 1,428.00 Sq. ft. 19,712 $ 0.07 9,245 $ 669.74 $ 0.07
------------------------------------------------------------------------------------------------------------------------------------
Sub-total: Office Services $ 17,521.98 Sq. ft. 19,712 $ 0.89 9,245 $ 8,217.87 $ 0.89
------------------------------------------------------------------------------------------------------------------------------------
Lab Service Charges:
Canon IR330 lease + service (downstairs) $ 7,498.40 Cost $ 7,498 $ 1.00 0.5 $ 3,749.20 $ 7,498.40
Gaz Metropolitain $ 2,184.04 Sq. ft. 2,184 $ 1.00 2,654 $ 2,654.00 $ 1.00
Megs - cylinder rental $ 1,449.36 Cost $ 1,449 $ 1.00 0.5 $ 724.68 $ 1,449.36
Service Contracts: BM Dedicated Equipment $ 1,475.00 Cost $ 1,475 $ 1.00 1.0 $ 1,475.00 $ 1,475.00
Service Contracts: Shared Lab Equipment $ 67,535.00 Cost $ 67,535 $ 1.00 0.5 $ 33,767.50 $67,535.00
------------------------------------------------------------------------------------------------------------------------------------
Sub-total Lab Service Charges $ 80,141.80 Sq. ft. 4,500 $ 5.00 2,654 $ 42,370.38 $ 15.96
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total Annual Space Costs $344,189.07 $166,209.51
------------------------------------------------------------------------------------------------------------------------------------
Schedule 12.1 (q) Exhibit D- Space Costs Page 2/2
------------------------------------------------------------------------------------------------------------------------------------
Administrative Services:
Cafeteria (Coffee / tea / milk /
bottled water) $ 2,290.00 Per Person 19 $ 120.53 8 $ 964.21 NA
Conamex (IS) Service Fees $ 52,408.00 Per Person 19 $2,758.32 8 $ 22,066.53 NA
Fax Maintenance Agreement-Lab $ 448.60 Per Person 19 $ 29.91 8 $ 239.25 NA
Facility Management $ 16,750.00 Per Person 19 $ 881.58 8 $ 7,052.63 NA
Payroll Services $ 17,754.00 Per Person 19 $ 934.42 8 $ 7,475.37 NA
Receptionist Services $ 30,500.00 Per Person 19 $1,605.26 8 $ 12,842.11 NA
Videotron - Internet connection $ 7,800.00 Per Person 19 $ 410.53 8 $ 3,284.21 NA
------------------------------------------------------------------------------------------------------------------------------------
Sub-total: Administrative Services $127,950.60 $ 53,924.31 NA
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total $472,139.67 $220,133.82 NA
------------------------------------------------------------------------------------------------------------------------------------
Schedule 12.1(t) - Quebec Opinion
---------------------------------
[CANADIAN LEGAL OPINION ON LETTERHEAD OF MCCARTHY TETRAULT]
o, 2001
BIOMARIN PHARMACEUTICAL INC.
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
371 BEL MARIN KEYS BLVD.
NOVATO, CALIFORNIA
94949
Dear Sirs:
We have acted as counsel to IBEX Technologies Inc. ("IBEX"), IBEX
Pharmaceuticals Inc. ("IBEX Pharma") and Technologies IBEX R&D Inc. ("IBEX R&D")
(IBEX, IBEX Pharma and IBEX R&D being collectively referred to herein as the
"IBEX Canadian Companies") and IBEX Technologies LLC ("IBEX LLC") and IBEX
Technologies Corp ("IBEX Corp") (the IBEX Canadian Companies and IBEX LLC and
IBEX Corp. being collectively referred to herein as the "IBEX Group") in
connection with the preparation, execution and delivery of a Canadian Asset
Purchase Agreement dated as of o, 2001 (the "Canadian Agreement"), by and among
the members of the IBEX Group and BioMarin Pharmaceutical Inc. ("BioMarin") and
BioMarin Pharmaceutical Nova Scotia Company ("BioMarin NS") (collectively, the
"BioMarin Group"). IBEX LLC and IBEX Corp are collectively referred to herein as
the "IBEX US Companies".
This opinion is delivered to you pursuant to the Canadian Agreement. Capitalized
terms used herein and not defined herein shall have the meanings ascribed
thereto in the Canadian Agreement.
In connection with this opinion, we have examined originals or copies certified
or authenticated to our satisfaction, of the following:
(a) the Canadian Agreement;
(b) a license agreement dated as of o, 2001 among the members of the
BioMarin Group, BioMarin Enzymes Inc. ("BioMarin US") and IBEX and IBEX
Pharma (the "License Agreement");
(c) a services, equipment and space sharing agreement dated as of o, 2001
among the members of the BioMarin Group and the members of the IBEX
Group (the "Services Agreement");
(d) a Certificate of Good Standing of IBEX dated o, 2001 issued by Industry
Canada (the "IBEX Good Standing Certificate");
Page 2
(e) a Certificate of Good Standing of IBEX Pharma dated o, 2001 issued by
Industry Canada (the "IBEX Pharma Good Standing Certificate");
(f) a Certificate of Good Standing of IBEX R&D dated o, 2001 issued by o
(the "IBEX R&D Good Standing Certificate"); and
(g) a certificate of a senior officer of each member of the IBEX Group
dated as of the date hereof, a copy of which is attached hereto (the
"Officer's Certificate").
We have examined originals or copies, certified or identified to our
satisfaction, of the constating documents and by-laws of each of the IBEX
Canadian Companies and of such corporate records of each of the IBEX Canadian
Companies, certificates of public officials, officers of each of the members of
the IBEX Group and such other documents and have considered such questions of
law and have made such other investigations as we have deemed relevant or
necessary as a basis for the opinions hereinafter expressed.
For the purposes hereof, we have assumed, with your permission and without
independent verification of any kind: (a) that the signatures of Persons signing
all documents in connection with which this opinion is rendered are genuine and
authorized; (b) the legal capacity of all natural persons; (c) that all
documents submitted to us as originals or duplicate originals are authentic; (d)
that all documents submitted to us as copies, whether certified or not, conform
to authentic original documents; (e) there has not been any mutual mistake of
fact or misunderstanding, error, fear, lesion, fraud, duress, or undue
influence; (f) there are no agreements or understandings among the Parties,
written or oral and there is no usage of trade or course of prior dealing among
the Parties that would, in either case, define, supplement, or qualify the terms
of the Canadian Agreement and/or the Services Agreement (collectively, the
"Documents"); (g) the contracts, agreements or instruments to which each of the
members of the IBEX Group is a party or by which their properties are bound,
specifically excluding the Documents and the U.S. Purchase Agreement, will be
enforced as written; (h) all Parties will act in accordance with, and will
refrain from taking any action that is forbidden by, the Documents; (i) all
Parties will act in accordance with the terms and conditions of the Documents;
(j) each member of the BioMarin Group has been duly incorporated and is validly
existing and in good standing under the laws of its respective jurisdiction of
incorporation and each other jurisdiction in which the conduct of its respective
business or the ownership of its respective properties makes such qualification
necessary; (k) each of the Documents has been duly executed and delivered by the
members of the BioMarin Group; (l) each of the Documents constitutes a valid and
legally binding obligation of each member of the BioMarin Group; (m) each of the
IBEX US Companies has been duly incorporated and is validly existing and in good
standing under the laws of its respective jurisdiction of incorporation and each
other jurisdiction in which see the conduct of its respective business or the
ownership of its respective properties makes such qualification necessary; and
(n) each of the Documents has been duly executed and delivered by each of the
IBEX US Companies.
Page 3
As to questions of fact relevant to this opinion, we have assumed the accuracy
of the representations and warranties of the members of the IBEX Group in the
Documents and we assume compliance on the part of all Parties with their
covenants and agreements contained therein.
We are qualified to carry on the practice of law in the Province of Quebec only
and we express no opinion as to any laws or matters governed by any laws, other
than the laws of the Province of Quebec and the federal laws of Canada
applicable therein. The opinions herein are limited to the laws of the Province
of Quebec and the federal laws of Canada applicable herein in effect as of the
date hereof and we assume no obligation to update these opinions to take into
account any changes in such laws after the date hereof.
In expressing the opinion set forth in paragraph 1 below, we have relied
exclusively on the IBEX Good Standing Certificate, the IBEX Pharma Good Standing
Certificate and the IBEX R&D Good Standing Certificate.
The phrase "to our knowledge" when used in this opinion is intended to indicate
that, during the course of our representation of the members of the IBEX Group,
no information that would give us actual knowledge (as at the date hereof) of
the inaccuracy of such opinions has come to the attention of the lawyers
advising the members of the IBEX Group.
Based upon and subject to the foregoing and the qualifications set forth below,
we are of the opinion that:
1. Each of the IBEX Canadian Companies is duly incorporated under the laws
of its respective jurisdiction of incorporation and has not been
dissolved.
2. Each of the IBEX Canadian Companies has all necessary corporate power,
authority and capacity to own, lease and operate its respective
property and assets and to execute, deliver and perform each of the
Documents and the License Agreement. Each of the IBEX Canadian
Companies has received all necessary corporate approvals in connection
with the execution, delivery and performance of each of the Documents
and the License Agreement.
3. To our knowledge there are no outstanding options, rights, calls,
commitments, conversion rights, plans or other agreements of any
character providing for the purchase, issuance, sale or transfer of any
of the Canadian Assets.
4. The execution, delivery and performance by each of the IBEX Canadian
Companies of each of the Documents and the License Agreement and the
consummation of the Transaction will not; (i) violate, conflict with or
result in the breach of any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of any of the IBEX
Canadian Companies; or (ii) subject to the Bulk Sales Carve-out,
contravene any laws of the Province of Quebec; or (iii) to our
Page 4
knowledge, contravene any order, writ, injunction or decree of any
court or other governmental authority to which any of the IBEX Canadian
Companies is subject; and (iv) to our knowledge, neither of the
Documents nor the License Agreement contravenes any indenture,
agreement, instrument or understanding to which any of the IBEX
Canadian Companies is a party or by which any of the IBEX Canadian
Companies is bound.
5. The execution, delivery and performance by each of the IBEX US
Companies of the Documents and the License Agreement and the
consummation of the Transaction will not; (i) subject to the Bulk Sales
Carve-Out, contravene any laws of the Province of Quebec; (ii) to our
knowledge, contravene any order, writ, injunction or decree of any
court or other governmental authority to which either of the IBEX US
Companies is subject; and (iii) to our knowledge, neither of the
Documents nor the License Agreement contravenes any indenture,
agreement, instrument or understanding to which either of the IBEX US
Companies is a party or by which either of the IBEX US Companies is
bound.
6. Save and except as provided in the Documents and/or the License
Agreement, no authorization, consent or approval of, or filing with or
notice to; (i) any governmental agency or regulatory body; or (ii) to
our knowledge, any court or other Person; is required to be obtained by
any member of the IBEX Group in connection with the execution, delivery
or performance of the Documents and.or the License Agreement by each
member of the IBEX Group.
7. To our knowledge, save and except as provided in the Canadian
Agreement, there is no action, suit, litigation, arbitration or
proceeding in progress or pending against or relating to any member of
the IBEX Group nor are we aware of any judgment, decree, injunction or
order of any court, government department, commission, agency or
arbitration outstanding against any member of the IBEX Group.
8. Each of the Documents and the License Agreement has been duly executed
and delivered by each member of the IBEX Group.
9. Each of the Documents is a legal, valid and binding obligation of each
member of the IBEX Group, enforceable against each member of the IBEX
Group in accordance with its terms.
The opinion set forth in section 9 above is subject to the qualifications that:
(i) Enforceability may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium, arrangement or
Page 5
winding-up laws or other similar laws affecting the
enforcement of creditors' rights generally.
(ii) Enforceability may be limited by equitable principles,
including the principle that equitable remedies such as
specific performance and injunction may only be granted in the
discretion of a court of competent jurisdiction and may not be
awarded where damages are considered an adequate remedy.
(iii) A provision purporting to allow severance of a provision or
restricting its effect may not be enforceable if such
severance or restriction would not accord with public policy
or would involve a court in making a new contract for the
parties.
(iv) We express no opinion as to the validity of any provision in
the Documents that purports to establish any evidentiary
standard or purports to give or affect any right to notice.
(v) We express no opinion as to any non-competition clause or
covenant in any document or agreement to be delivered under
the terms of the Canadian Agreement.
This opinion is rendered solely for your benefit in connection with the
Transaction and is not to be relied upon by any other Person or otherwise
furnished to third parties, used, circulated, quoted or relied upon, without our
prior consent. This opinion is as of the date hereof, and we undertake no, and
hereby disclaim any, obligation to advise you of any change in any matters set
forth herein.
Yours very truly,
Schedule 12.1(t) - U.S. Opinion
-------------------------------
[LETTERHEAD OF U.S. COUNSEL]
o, 2001
BIOMARIN PHARMACEUTICAL INC.
BIOMARIN PHARMACEUTICAL NOVA SCOTIA COMPANY
371 BEL MARIN KEYS BLVD.
NOVATO, CALIFORNIA
94949
Dear Sirs:
We have acted as counsel to IBEX Technologies LLC ("IBEX LLC") and IBEX
Technologies Corp ("IBEX Corp") in connection with the preparation, execution
and delivery of a Canadian Asset Purchase Agreement dated as of o, 2001 (the
"Canadian Agreement"), by and among IBEX LLC and IBEX Corp (collectively, the
"IBEX US Companies") and IBEX Technologies Inc. ("IBEX"), IBEX Pharmaceuticals
Inc. ("IBEX Pharma") and Technologies IBEX R&D Inc. ("IBEX R&D") and BioMarin
Pharmaceutical Inc. ("BioMarin") and BioMarin Pharmaceutical Nova Scotia Company
("BioMarin NS") (collectively, the "BioMarin Group"). We have also acted as
counsel to IBEX, IBEX Pharma and IBEX R&D (collectively, the "IBEX Canadian
Companies"). The IBEX US Companies and the IBEX Canadian Companies are
collectively referred to herein as the "IBEX Group".
This opinion is delivered to you pursuant to the Canadian Agreement. Capitalized
terms used herein and not defined herein shall have the meanings ascribed
thereto in the Canadian Agreement.
In connection with this opinion, we have examined originals or copies certified
or authenticated to our satisfaction, of the following:
(a) the Canadian Agreement;
(b) a license agreement dated as of o, 2001 among the members of the
BioMarin Group, BioMarin Enzymes Inc. ("BioMarin US"), IBEX and IBEX
Pharma (the "License Agreement");
(c) a services, equipment and space sharing agreement dated as of o, 2001
among the members of the IBEX Group and the members of the BioMarin
Group (the "Services Agreement");
(d) a Certificate of o of IBEX Corp. dated o, 2001 issued by o (the "IBEX
Corp. Good Standing Certificate");
Page 2
(e) a Certificate of o of IBEX LLC dated o, 2001 issued by o (the "IBEX LLC
Good Standing Certificate"); and
(f) a certificate of a senior officer of each of the IBEX US Companies
dated as of the date hereof, a copy of which is attached hereto (the
"Officer's Certificate").
We have examined originals or copies, certified or identified to our
satisfaction, of the constating documents and by-laws of each of the IBEX US
Companies and of such corporate records of each of the IBEX US Companies,
certificates of public officials, officers of each of the members of the IBEX
Group and such other documents and have considered such questions of law and
have made such other investigations as we have deemed relevant or necessary as a
basis for the opinions hereinafter expressed.
For the purposes hereof, we have assumed, with your permission and without
independent verification of any kind: (a) that the signatures of Persons signing
all documents in connection with which this opinion is rendered are genuine and
authorized; (b) the legal capacity of all natural persons; (c) that all
documents submitted to us as originals or duplicate originals are authentic; (d)
that all documents submitted to us as copies, whether certified or not, conform
to authentic original documents; (e) there has not been any mutual mistake of
fact or misunderstanding, error, fear, lesion, fraud, duress, or undue
influence; (f) there are no agreements or understandings among the Parties,
written or oral and there is no usage of trade or course of prior dealing among
the Parties that would, in either case, define, supplement, or qualify the terms
of the License Agreement; (g) the contracts, agreements or instruments to which
either IBEX and/or IBEX Pharma is a party or by which their properties are
bound, specifically excluding the License Agreement, will be enforced as
written; (h) all Parties will act in accordance with, and will refrain from
taking any action that is forbidden by, the License Agreement; (i) all Parties
will act in accordance with the terms and conditions of the License Agreement;
(j) each member of the BioMarin Group and BioMarin US has been duly incorporated
and is validly existing and in good standing under the laws of its respective
jurisdiction of incorporation and each other jurisdiction in which the conduct
of its respective business or the ownership of its respective properties makes
such qualification necessary; (k) the License Agreement has been duly executed
and delivered by the members of the BioMarin Group and BioMarin US; (l) the
License Agreement constitutes a valid and legally binding obligation of each
member of the BioMarin Group and BioMarin US; (m) each of IBEX and IBEX Pharma
has been duly incorporated and is validly existing and in good standing under
the laws of its respective jurisdiction of incorporation and each other
jurisdiction in which see the conduct of its respective business or the
ownership of its respective properties makes such qualification necessary; and
(n) the License Agreement has been duly executed and delivered by each of IBEX
and IBEX Pharma.
As to questions of fact relevant to this opinion, we have assumed the accuracy
of the representations and warranties of IBEX and IBEX Pharma in the License
Page 3
Agreement and we assume compliance on the part of all Parties with their
covenants and agreements contained therein.
We are solicitors qualified to carry on the practice of law in the o only and we
express no opinion as to any laws or matters governed by any laws, other than
the laws of o. The opinions herein are limited to the laws of o applicable
herein in effect as of the date hereof and we assume no obligation to update
these opinions to take into account any changes in such laws after the date
hereof.
In expressing the opinion set forth in paragraph 1 below, we have relied
exclusively on the IBEX Corp. Good Standing Certificate and the IBEX LLC Good
Standing Certificate.
The phrase "to our knowledge" when used in this opinion is intended to indicate
that, during the course of our representation of the IBEX US Companies, no
information that would give us actual knowledge (as at the date hereof) of the
inaccuracy of such opinions has come to the attention of the lawyers advising
the IBEX US Companies.
Based upon and subject to the foregoing and the qualifications set forth below,
we are of the opinion that:
1. Each of the IBEX US Companies is duly incorporated, validly existing
and in good standing under the laws of its respective jurisdiction of
incorporation and has not been dissolved.
2. Each of the IBEX US Companies has all necessary corporate power,
authority and capacity to own, lease and operate its respective
property and assets and to execute, deliver and perform the Canadian
Agreement and the Services Agreement. Each of the IBEX US Companies has
received all necessary corporate approvals in connection with the
execution, delivery and performance of the Canadian Agreement and the
Services Agreement.
3. The execution, delivery and performance by each of the IBEX US
Companies of the Canadian Agreement and the Services Agreement and the
consummation of the Transaction will not; (i) violate, conflict with or
result in the breach of any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of either of the IBEX
US Companies; or (ii) contravene any laws of the State of Delaware; or
(iii) to our knowledge, contravene any order, writ, injunction or
decree of any court or other governmental authority to which either of
the IBEX US Companies is subject.
4. Save and except as provided in the Canadian Agreement, no
authorization, consent or approval of, or filing with or notice to; (i)
any governmental agency or regulatory body; or (ii) to our knowledge,
any court or other Person; is required to be obtained by any of the
IBEX US Companies in connection with the execution, delivery or
Page 4
performance of the Canadian Agreement and the Services Agreement by
each of the IBEX US Companies.
5. Each of the Canadian Agreement and the Services Agreement has been duly
executed and delivered by each of the IBEX US Companies.
6. The License Agreement is a legal, valid and binding obligation of each
member of the IBEX Group, enforceable against each member of the IBEX
Group in accordance with its terms.
The opinion set forth in section 6 above is subject to the qualifications that:
(i) Enforceability may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium, arrangement or
winding-up laws or other similar laws affecting the
enforcement of creditors' rights generally.
(ii) Enforceability may be limited by equitable principles,
including the principle that equitable remedies such as
specific performance and injunction may only be granted in the
discretion of a court of competent jurisdiction and may not be
awarded where damages are considered an adequate remedy.
(iii) A provision purporting to allow severance of a provision or
restricting its effect may not be enforceable if such
severance or restriction would not accord with public policy
or would involve a court in making a new contract for the
parties.
(iv) We express no opinion as to the validity of any provision in
the License Agreement that purports to establish any
evidentiary standard or purports to give or affect any right
to notice.
This opinion is rendered solely for your benefit in connection with the
Transaction and is not to be relied upon by any other Person or otherwise
furnished to third parties, used, circulated, quoted or relied upon, without our
prior consent. This opinion is as of the date hereof, and we undertake no, and
hereby disclaim any, obligation to advise you of any change in any matters set
forth herein.
Yours very truly,
Schedule 13.2 - Post-Closing Canadian Assigned Rights Consents
--------------------------------------------------------------
All Contracts itemized on Schedule 5.1(s) other than Contracts to be assigned at
Closing listed on Schedule 2.1(b) and Contracts which are identified as not
being assignable in Schedule 5.1(s).
Schedule 15.2 - BioMarin Press Release
--------------------------------------
Press Release
Contacts:
Jeremy T. Price Sharon Karlsberg
Financial and Investor Relations Director
BioMarin Pharmaceutical Inc. Feinstein Kean Healthcare
(415) 884-6777 (617) 577-8110
BioMarin To Acquire Enzyme Products From IBEX Technologies
Neutralase(TM) to Enter Phase III Clinical Program for Coronary Artery Bypass
Graft;Phenylase in Preclinical Development for Phenylketonuria
Conference Call and Webcast to be Held Today at 4:15 PM EDT (2215 CET)
Novato, California, October 10, 2001 - BioMarin Pharmaceutical Inc. (Nasdaq
and SWX New Market: BMRN) today announced that it has reached a definitive
agreement with IBEX Technologies Inc. (Toronto Stock Exchange: IBT) to acquire
the rights to all IBEX pharmaceutical assets. IBEX's portfolio of enzyme
therapeutics will complement BioMarin's existing pipeline of products for
serious, life-threatening diseases and conditions.
New Product Additions to the BioMarin Pipeline
IBEX's lead product, NeutralaseTM, is an injectable heparinase
that reverses the anticoagulation of blood by heparin and other new heparin-like
anticoagulants. Neutralase is a carbohydrate-modifying enzyme that cleaves
heparin, a glycosaminoglycan (GAG), in a manner similar to the activity of
BioMarin's two enzyme replacement therapies: AldurazymeTM for the treatment of
MPS I and rhASB for the treatment of MPS VI. Based on positive safety and
efficacy data from IBEX's clinical trials of Neutralase, BioMarin plans to
initiate a Phase III trial of Neutralase in Coronary Artery Bypass Graft (CABG)
surgery in 2002.
In addition, IBEX has an early development stage program for Phenylase, an
orally active enzyme with the potential to treat Phenylketonuria (PKU), a
genetic disease caused by an enzyme deficiency that can lead to progressive,
severe, and irreversible mental retardation.
Terms of the Agreement
Under the terms of the agreement, BioMarin will acquire IBEX's
pharmaceutical assets for US$10.5 million, with all but US$2 million payable in
shares of BioMarin common stock.
BioMarin will also make contingent payments of up to US$9.5 million to IBEX
upon U.S. FDA approval of products acquired from IBEX.
The boards of directors of BioMarin and IBEX have approved the
transaction, which is subject to customary closing conditions. The transaction
is expected to close in the fourth quarter of this year. Leerink Swann & Co.
acted as financial advisor to BioMarin with regard to this transaction.
Fredric D. Price, BioMarin's Chairman and Chief Executive Officer said,
"Neutralase and Phenylase represent novel approaches to solving
medically-important problems that affect hundreds of thousands of patients in
North America and Europe. The acquisition of these promising compounds further
expands BioMarin's portfolio of treatments developed through our enzyme and
carbohydrate chemistry expertise.
"Neutralase is a unique late-stage product with the potential to
significantly reduce the serious problems associated with heparin reversal. With
the addition of Neutralase, BioMarin will have five drug candidates in clinical
trials next year: Aldurazyme, rhASB, Vibriolysin, Neutralase, and a fifth
product that will advance from our internal development pipeline."
Robert Heft, Ph.D., Co-founder, President, and Chief Operating Officer of
IBEX, added, "BioMarin's expertise in enzyme research, production, quality
control and assurance, process development, and clinical trials management will
greatly enhance the ability to effectively advance Neutralase and Phenylase
through their next stages of development. I am looking forward to assuming my
new position as Vice President, Product Development at BioMarin and
contributing, with my team here in Montreal, to BioMarin's success."
Background on Neutralase and Phenylase Markets
There are approximately 300,000 CABG procedures and 725,000 angioplasties
each year in the United States that could potentially benefit from heparin
reversal. Estimates for the European markets are projected to be as large as
those in the U.S. In addition, preclinical studies have shown that Neutralase
may be effective as a reversal agent for the low molecular weight heparins
(LMWHs) that are used in many surgeries such as hip and knee replacements as
well as for a new class of drugs, pentasaccharides, that are also being
developed for these indications.
Currently, protamine is the only product available for the reversal of
heparin anticoagulation. Protamine has been known to cause significant problems
during the reversal of heparin anticoagulation, but it has continued to be used
in the absence of an appropriate alternative. According to numerous published
articles, risks associated with protamine usage include: sudden decreases in
blood pressure, depression of heart function, pulmonary hypertension, acute
allergic reactions, complement activation, and strokes. IBEX's clinical trials
have demonstrated that Neutralase adequately reverses heparin anticoagulation
and improves blood pressure characteristics when compared to protamine.
Additional data suggest that Neutralase may address other serious problems that
have been linked to protamine usage as well.
Jeffrey Borer, M.D., Chief, Division of Cardiovascular Pathophysiology,
Weill Medical College of Cornell University, noted, "Protamine complications
during heart surgery are well known, but currently there are no other heparin
antidotes. In clinical testing during open heart surgery, Neutralase has
demonstrated the potential of being an effective alternative to protamine
without its unwanted hemodynamic complications."
Jean-Francois Tanguay, M.D., Montreal Heart Institute, and principal
investigator for IBEX's Phase II trial of Neutralase in angioplasty, commented,
"Heparin reversal following angioplasty is uncommon because of the lack of a
suitable drug. Initial clinical evaluation in patients undergoing angioplasty
demonstrated that Neutralase has the ability to significantly reduce the time to
sheath removal and the time required for safe patient ambulation."
PKU affects approximately 50,000 patients in North America and Europe.
There are no drugs currently approved for treatment of PKU, and patients are
required to adhere to strict, protein avoiding diets. The special formulas and
foods are estimated to cost more than $5,000 per patient per year over normal
food requirements. Many patients over five to ten years of age have difficulty
maintaining this dietary regimen, and their elevated phenylalanine levels lead
to a variety of problems with brain function. Phenylase is an oral enzyme
therapy that has the potential to reduce phenylalanine levels while allowing a
less restricted, more palatable diet.
Charles R. Scriver, M.D., Alva Professor of Human Genetics, McGill
University, said, "Up to now, treatment of thousands of PKU patients has been
accomplished by changing lifestyle, diet and the intake of protein and
phenylalanine. Almost fifty years of dietary treatment reveal how arduous and
difficult it is. Oral enzyme substitution therapy with Phenylase has been
demonstrated in a PKU animal model. It is time to move Phenylase forward so that
it can be studied and used in the human patient."
BioMarin will host a conference call and webcast to discuss this
acquisition today at 4:15 PM EDT (2215 CET). This event can be accessed on the
BioMarin website at: http://investor.biomarinpharm.com.
Date: Wednesday, October 10, 2001
Time: 4:15 PM EDT (2215 CET)
U.S. & Canada Toll-free Dial in #: 1-800-997-8642
International Dial in #: 1-973-694-6836
Replay Toll-free Dial in #: 1-800-428-6051
Replay International Dial in #: 1-973-709-2089
Replay Code #: 212381
Questions and Answers Related to the Transaction
In order to provide comprehensive information to all investors regarding
this transaction, BioMarin is taking this opportunity to present questions and
answers related to this transaction on the accompanying pages.
BioMarin specializes in the development and commercialization of
therapeutic enzyme products to treat serious, life-threatening diseases and
conditions.
IBEX is a biopharmaceutical company developing enzyme-based therapeutics
for a variety of applications, particularly cardiovascular disease and diseases
of genetic origin.
This press release contains forward-looking statements about the business
prospects of BioMarin Pharmaceutical Inc., and the acquisition of the assets to
be acquired from IBEX and the products of IBEX. These forward-looking statements
are predictions and involve risks and uncertainties such that actual results may
differ materially from these statements. Results may differ materially depending
on the completion of the acquisition, progress of BioMarin's product programs,
including the ability to integrate the programs being acquired from IBEX, the
actual results of the current and proposed clinical trials, actions of
regulatory authorities, future availability of capital, future actions in the
pharmaceutical market and developments by competitors, and those factors
detailed in BioMarin's filings with the Securities and Exchange Commission such
as 10Q, 10K and 8K reports. Stockholders are urged not to place undo reliance on
forward-looking statements, which speak only as of the date hereof. BioMarin is
under no obligation, and expressly disclaims any obligation, to update or alter
any forward-looking statement, whether as a result of new information, future
events or otherwise.
BioMarin Pharmaceutical Inc.
QUESTIONS AND ANSWERS RELATING TO THE ACQUISITION OF
NEUTRALASE AND PHENYLASE FROM IBEX TECHNOLOGIES
--------------------------------------------------------------------------------
QUESTIONS ON NEUTRALASE
1. Question: What kind of an enzyme is Neutralase and how does it work?
Answer: Neutralase (heparinase I) is a carbohydrate-modifying enzyme
that cleaves heparin at specific places important for anticoagulation. By
cleaving heparin, Neutralase reverses heparin's anticoagulative effects.
Importantly, Neutralase can also cleave and neutralize the anticoagulative
effects of the new low molecular weight heparins (LMWHs) and the synthetic
heparin-like pentasaccharide Arixtra(R) (fondaparinux sodium) from
Sanofi-Synthelabo and Organon. We believe that no product other than Neutralase
will have the capability of reversing all of these new products.
2. Question: How does Neutralase fit into BioMarin's pipeline of enzyme
products?
Answer: Like all of our existing products that treat genetic diseases,
Neutralase is a carbohydrate-modifying enzyme. It cleaves heparin, a type of
glycosaminoglycan or `GAG' (carbohydrate). Our two lead products - Aldurazyme
for MPS I and rhASB for MPS VI - also cleave GAGs.
3. Question: What are the potential indications for Neutralase and what is its
competition?
Answer: Neutralase has the potential for use as a reversal agent for
heparin anticoagulation in open-heart surgery such as coronary artery bypass
graft (CABG) procedures, interventional cardiology procedures such as
angioplasty, and whenever heparin or heparin-like anticoagulants need reversal.
Protamine sulfate is the only agent currently available to reverse heparin and
its use is associated with numerous side effects as detailed in question number
four below. In addition, protamine cannot efficiently reverse the activity of
low molecular weight heparins, heparinoids or Arixtra. Neutralase, on the other
hand, has been shown to reverse these newer anticoagulation products in
preliminary trials (Yang et al., 1986; Jeske and Fareed, 1999; Zmuda et al.,
2000; Daud et al., 2001; Yu et al., 2000).
Protamine is used more than 2,000,000 times annually (Carr and Silverman, 1999)
in the U.S. alone, and Neutralase could potentially be used to reverse heparin
in all of these situations as well as in the other situations in which reversal
of heparin is currently avoided due to protamine's side effects.
4. Question: What is protamine and what problems associated with its use
complicate and limit its utility?
Answer: Protamine is a positively charged polymer derived from salmon
sperm that inactivates heparin by binding to it, forming large macromolecular
complexes. Protamine has been known to cause significant problems during
reversal of heparin anticoagulation, but it has continued to be used in the
absence of an appropriate alternative (Carr and Silverman, 1999; Weiler et al.,
1985; Weiler et al., 1990; Kimmel et al., 1998). Some of these known problems
are detailed below:
o Sudden decreases in blood pressure. Protamine is known to
cause sudden decreases in blood pressure during administration for
reversal of heparin during bypass surgery. This effect may be due
to the large protamine-heparin complex that causes the release of
mediators that dilate blood vessels and lower blood pressure. In
addition, it may have a direct effect on decreasing cardiac
function (Del Re et al., 1993; Carr and Silverman, 1999).
Anesthesiologists must infuse protamine slowly and provide
immediate blood pressure support in patients during heparin
reversal after open-heart surgery in order to try to manage this
common problem.
o Increased pulmonary blood pressure (pulmonary
hypertension). The reversal of heparin with protamine routinely
induces sudden increases in pulmonary blood pressure (pulmonary
hypertension) due to the release of mediators, such as
thromboxane, which can put excess strain on the heart immediately
following surgery and lead to catastrophic consequences (Morel et
al., 1987; Lowenstein and Zapol, 1990; Carr and Silverman, 1999).
o Acute allergic reactions. Most patients having acute
allergic reactions to protamine have not had prior protamine
exposure and have no known predisposing condition. Patients with
prior exposure to protamine, such as diabetics using
protamine-formulated insulin (also called NPH), can have acute
anaphylaxis reactions during heparin reversal with protamine
(Weiss et al., 1989; Porsche and Brenner, 1999). A study by Gupta
et al 1986 found that 3% of all insulin dependent diabetics and
0.2% of all persons undergoing vascular surgery at their
institution had anaphylactoid reactions to protamine and an
associated overall mortality rate of 36%. Though less common,
these allergic reactions can be severe.
o Complement activation. The large protamine-heparin
complexes formed after protamine administration can activate the
classical complement pathway, a type of inflammatory immune
response (Morel et al., 1987; Carr and Silverman, 1999). The
activation of complement components and subsequent complement
cascade has been associated with post-operative arrhythmias
(Bruins et al., 2000). Indiscriminate activation of complement can
cause tissue injury, as the complement cascade leads to the
production of activated complement complexes that bind and attack
tissues and release secondary mediators, such as thromboxane.
These actions are associated with temporary organ dysfunction and
morbidity after surgery.
o Platelet dysfunction and leukocyte sequestration.
Protamine alters the function of platelets and leukocytes and
associated cell surface receptor expression which leads to
decreased or abnormal platelets and decreased leukocytes
(Mochizuki et al., 1998; Ammar and Fisher, 1997).
o Strokes when used in carotid endarterectomy (CEA).
Protamine is often avoided in vascular surgery because it can
promote clot formation at the surgical site. Mauney et al (Mauney
et al., 1995) published a report on a consecutive series of 348
patients undergoing carotid surgery and found a postoperative
stroke rate of 2.6% when protamine was used versus no strokes
without protamine.
5. Question: What are the most important results from the Neutralase Phase I
and II clinical trials?
Answer: The Phase I and Phase II clinical trials described below
indicated that the drug was safe, well tolerated and effective at reversing
anticoagulation by heparin in a dose-dependent fashion. The data show that
Neutralase can reverse heparin anticoagulation with fewer decreases in systolic
blood pressure and fewer increases in pulmonary blood pressure than protamine.
o Results from use in CABG surgery. A Phase II study using a dose
of 10 ug/kg or 15 ug/kg demonstrated successful reversal of
heparin. This trial was initiated to assess a higher baseline
dose of Neutralase and an improved regimen for re-administration
more in line with current clinical practice. Seventeen hospitals
in the U.S. and Germany participated in the first stage of the
trial. The interim analysis was conducted after the first 94
patients undergoing CABG surgery were enrolled. In the study,
patients were randomly assigned to one of three treatment arms -
Neutralase 10 ug/kg, Neutralase 15 ug/kg, or protamine - in a
double blind, controlled comparison of Neutralase to protamine.
The study demonstrated adequate reversal with both the 10 ug/kg
and 15 ug/kg doses of Neutralase and again reaffirmed the
improved blood pressure characteristics of reversal with
Neutralase over protamine. The data suggested that a similar but
larger Phase III trial would meet its endpoint of no significant
difference (difference of < 300 cc) in chest tube drainage.
o Results from use in angioplasty. A Phase II trial in
angioplasty demonstrated that the patients could complete the
procedure faster (removal of the vascular sheath one and a half to
two hours sooner) and ambulate three to four hours sooner (Tanguay
et al., 2001).
6. Question: What happened to the first Phase III Neutralase trials initiated
by IBEX
Answer: An inadequate dose and dosing regimen were used in the first
Phase III trial and led to inadequate reversal of heparin. An appropriate dose
and dosing regimen have been determined based on the Phase II trial noted above
and will be used in subsequent trials. Additional detail is provided below.
The initial Phase III trial in CABG showed that the dose used (7 ug/kg) and the
dosing regimen were not sufficient to completely reverse heparin in comparison
to protamine. In the first Phase III, the criterion for clinically successful
reversal was an activated clotting time of less than 20 seconds. This criterion
was not stringent enough and allowed some patients to receive an inadequate dose
of Neutralase. In addition, the protocol did not take into account specific
common practices in CABG such as the return of heparinized pump blood to the
patient, which would necessarily require more reversal agent. The Phase III
trial was stopped after 169 total patients were enrolled due to increased chest
tube drainage and unfavorable re-operation rates compared with protamine. In
spite of these dosing-related issues, the decreased incidence of blood pressure
problems after reversal was observed with Neutralase in comparison to protamine.
7. Question: Which indication will BioMarin pursue first, why, and what other
indications might it pursue?
Answer: BioMarin plans to initiate a Phase III trial of Neutralase in
the CABG indication first in 2002, because the use of Neutralase in CABG is the
most advanced clinical development program. CABG is performed over 600,000 times
in the U.S. and Europe each year and reversal of heparin is required in all
procedures performed using heart-lung bypass.
Subsequent to initiating the Phase III trial related to CABG, BioMarin intends
to pursue the use of Neutralase in angioplasty. Angioplasty is performed
approximately 1.4 million times in the U.S. and Europe annually. Currently,
heparin is used in angioplasty procedures to prevent thrombosis during or after
the procedure. Protamine is avoided because it can cause thrombosis and blockage
of the artery just opened. By avoiding protamine, the patient remains
anticoagulated for hours after the procedure. The patient usually lies in bed
with a sandbag on the groin waiting for the heparin to dissipate on its own
before the sheath is removed and the patient can ambulate. Neutralase has been
shown in a Phase II trial to safely reverse heparin and allow earlier sheath
removal and earlier ambulation (Tanguay et al., 2001). Reversal with Neutralase
retains some of the residual anti-thrombosis effect of heparin (known as anti-Xa
activity), which is a further advantage of using Neutralase for this indication.
8. Question: In addition to reversing heparin, does Neutralase have the
potential to reverse the new agents such as Low Molecular Weight Heparins
(LMWHs) and Arixtra (the new pentasaccharide from Sanofi/Organon)?
Answer: Neutralase is the only agent known to efficiently reverse these
new heparin-like anti-clotting agents. Neutralase is able to inactivate these
agents because it cleaves the recognition site for anti-thrombin III. The
binding of anti-thrombin III to these agents is required for the inhibition of
coagulation enzymes such as Factor IIa and Factor Xa. Neutralase can cleave
Arixtra, the new pentasaccharide agent from Sanofi, into an inactive trimer and
a dimer (Daud et al., 2001; Yu et al., 2000). Protamine does not work at all on
Arixtra and works poorly on the other low molecular weight compounds. It has a
relatively low affinity to bind these small heparin-like molecules
9. Question: How is Neutralase manufactured?
Answer: Neutralase is manufactured in large-scale batch culture of
Flavobacterium heparinium in native or recombinant form. IBEX successfully
manufactured clinical product through the use of a contract manufacturer at
commercial 2,000 liter scale. BioMarin believes this manufacturing process will
be further scaleable to larger commercial production levels.
10. Question: What is the Neutralase intellectual property position?
Answer: Neutralase is protected by a collection of patents regarding
the heparinase enzyme, composition of matter, method of use, and methods of
production.
QUESTIONS ON PHENYLASE
1. Question: What kind of an enzyme is Phenylase and how does it work?
Answer: Phenylase is a special stabilized microcrystalline form of the
enzyme phenylalanine ammonia lyase (PAL). Phenylase is designed to destroy
phenylalanine in the gut after oral administration. In doing so, it treats the
phenylketonuria (PKU) patient by lowering blood phenylalanine levels, which are
elevated in these patients.
2. Question: What is the indication for Phenylase?
Answer: Phenylase is being developed as an oral enzyme therapy for
patients with PKU. PKU is a genetic disease in which the body cannot properly
metabolize phenylalanine. The elevated levels of phenylalanine lead to brain
damage and severe mental retardation if left untreated. There are about 50,000
patients in the US and Europe with PKU. Patients with PKU are diagnosed at birth
by newborn screening and their phenylalanine levels are controlled by
restrictive diet. With adequate control, brain damage can be avoided. Phenylase
is currently in the preclinical stage of development.
3. Question: What do patients do today since there are no approved drugs on the
market?
Answer: The current standard of care for PKU is dietary control of
phenylalanine intake. A phenlyalanine free diet is easy to maintain in babies on
formula but is difficult and expensive later in life. Older patients use a
special phenylalanine free formula as their main food item and supplement that
with expensive special foods that are engineered to be low in phenylalanine. The
special dietary foods are expensive, costing more than $5,000 per year, and are
unpalatable for many patients. Most school age children, teenagers, and adults
have difficulty maintaining the degree of control over phenylalanine intake
recommended to achieve adequate protection of the brain. Teenagers and adults
frequently go off the diet in spite of the fact that the phenylalanine control
is now recommended for life (Phenylketonuria NIH consensus statement). Phenylase
has the potential to provide a convenient oral medication that would allow
patients to eat a normal diet and maintain a better degree of control of
phenylalanine intake.
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Eerenberg-Belmer,A.J., Yazdanbakhsh,A.P., de Beaumont,E.M., Eijsman,L.,
Trouwborst,A., and Hack,C.E. (2000). Heparin-protamine complexes and C-reactive
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Del Re,M.R., Ayd,J.D., Schultheis,L.W., and Heitmiller,E.S. (1993). Protamine
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Schedule 15.2 - IBEX Press Release
IBEX Technologies Inc.
October 8, 2001
Press Release
For immediate release
IBEX TO RECEIVE UP TO CAN$31 MILLION IN TRANSACTION WITH BIOMARIN
Montreal, October XX, 2001 - IBEX Technologies Inc. (Toronto, Symbol: IBT)
announces that it will receive up to $31 million in a transaction with BioMarin
Pharmaceutical Inc. (NASDAQ and Swiss SWX New Market, Symbol: BMRN) of Novato,
CA, under which BioMarin acquires the rights to the IBEX line of therapeutic
enzymes.
Under the terms of the agreement, BioMarin will acquire from IBEX the
intellectual property and other assets associated with the IBEX therapeutic
enzyme product candidates, including Neutralase(TM), Phenylase(TM) and
Extravase(TM). In exchange, IBEX will receive CAN $16.3 upon closing (CAN $0.89
per share) made up of CAN $3 million in cash, CAN $13.3 million in BioMarin
stock, and up to CAN $14.6 million in cash upon FDA approval of its lead drugs,
Neutralase (CAN $9.1 million) and Phenylase (CAN $5.5 million), provided
approval occurs within five years from the date of closing. Neutralase is
presently in Phase III clinical trials and Phenylase is at the pre-clinical
stage of development.
BioMarin (market cap US $428 million) develops enzyme therapies for serious,
life-threatening diseases and conditions. Its lead product is AldurazymeTM for
the treatment of MPS I, a lysosomal storage disorder. Phase III data is expected
in the fourth quarter of 2001. BioMarin has a joint venture with Genzyme (GENZ:
NASDAQ) for the development and commercialization of Aldurazyme. BioMarin also
has other products in or approaching clinical trials. For more information,
visit the BioMarin's web page at www.biomarinpharm.com
"This transaction makes IBEX a stronger company", said IBEX Chairman and CEO,
Paul Baehr. "It allows us to immediately realize value on our present
technologies and to actively pursue new ones under consideration, Added Mr.
Baehr, "We are pleased that our lead drugs, which have substantial market
potential, will be further developed by a company with the expertise and
resources of BioMarin", offering the potential for future payments when these
products are approved ".
As part of the transaction Dr. Robert Heft , currently President of IBEX, will
be joining BioMarin at the close of the transaction. "It is extremely
encouraging that Dr. Heft has agreed to continue his development work on these
therapeutic enzymes," stated Mr.
Baehr. "His expertise is key to achieving the potential of these programs."
Contemporaneous with the closing of this transaction the IBEX Board will be
strengthened by the addition of Dr. John Gillard (formerly CEO, Apoptogen Inc.
and VP Research BioChem Pharma) and Russell Allen, MBA (formerly VP Corporate
Development & Strategic Planning, Ligand Pharmaceuticals). Both these new
members will also serve on the Company's newly formed Technology Review Board.]
IBEX retains the diagnostic rights to its high-margin enzymes business
(annualized 2001 sales of over CAN $0.6 million), plus certain therapeutics
rights with respect to its oral protein protective technology in areas that are
non-competitive with BioMarin. IBEX will continue to maintain its pilot
microbial fermentation facility, its laboratories and office facilities in
Montreal. IBEX will also provide certain lab and fermentation services to
BioMarin.
As at April 30, 2001 (the last reporting date), IBEX reported CAN $6.6 million
in net cash and marketable securities. At the close of the transaction, IBEX
expects to have approximately CAN $22.0 million in net cash and marketable
securities. The annualized IBEX burn rate as at April 30, 2001 was CAN $2.4
million
IBEX is a biopharmaceutical company which has been developing enzymes-based
therapeutics and diagnostics for a variety of applications. For more
information, visit the Company's web page at www.ibex.ca.
-30-
For information:
Paul Baehr Nathalie Bourque
Chairman and Chief Executive Officer (514) 843-7171
(514) 344-4004
EXHIBIT 23.1
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CONSENT OF COUNSEL
We hereby consent to being named as counsel to BioMarin Pharmaceutical Inc.
in their registration statement on Form S-3 (File No. 333-72866), to the
reference therein to our firm under the caption "Legal Matters" and to the
inclusion of our opinion as previously filed as Exhibit 5.1 to such registration
statement.
Very truly yours,
/s/ Paul, Hastings, Janofsky & Walker LLP
PAUL, HASTINGS, JANOFSKY & WALKER
December 24, 2001
EXHIBIT 23.2
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Amended Form S-3, of our report
dated February 20, 2001 included in BioMarin Pharmaceutical Inc.'s Form 10-K for
the year ended December 31, 2000 and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
San Francisco, California
December 21, 2001