Exhibit 10.2
SHAREHOLDER SUPPORT
AGREEMENT
THIS AGREEMENT is made as of the
26th day of September, 2006.
BETWEEN:
THE PERSONS NAMED ON SCHEDULE 4.1(B)
HERETO,
(each such person a “
Shareholder ” and collectively, the “
Shareholders ”)
AND:
Millennium Pharmaceuticals, Inc., a
corporation existing under the laws of the State of
Delaware
(the “ Offeror
”)
WHEREAS:
A.
The Shareholders are the registered
and the beneficial owners of and/or control the disposition of
shares in the capital of AnorMED Inc. (the “ Company
”), as more particularly described herein;
B.
The Shareholders understand that the
Offeror and the Company are, concurrently with the execution and
delivery of this Agreement, executing and delivering the Support
Agreement providing for the Offer;
C.
This Agreement sets out the terms
and conditions of the several agreement of each of the Shareholders
(i) to tender its Shares or cause the same to be tendered to the
Offer and (ii) to abide by the other restrictions and covenants set
forth herein; and
D.
Each of the Shareholders
acknowledges that (i) the Offeror would not enter into the Support
Agreement but for the execution and delivery of this Agreement by
the Shareholders, (ii) it is a condition of the Offeror’s
obligation under the Support Agreement to make the Offer that the
Shareholders enter into this Agreement with the Offeror, and (iii)
in entering into this Agreement, each of the Shareholders
acknowledge that it is not and should not be considered to be
acting jointly and in concert with the Offeror in making the
Offer.
NOW THEREFORE this Agreement
witnesses that, in consideration of the premises and the covenants
and agreements herein contained, the parties hereto agree as
follows:
ARTICLE 1
INTERPRETATION
1.1
Definitions
In this Agreement:
(a)
“ affiliate ” has
the meaning assigned to such term under the Securities Act
(British Columbia);
(b)
“ Shareholder’s
Shares ” means, in respect of a Shareholder, (i) all
Shares beneficially owned by such Shareholder, or over which such
Shareholder exercises control or direction, on the date hereof and
(ii) any Shares that become beneficially owned by such Shareholder,
or over which such Shareholder acquires control or direction, after
the date hereof; and
(c)
“ Support Agreement
” means the support agreement dated the date hereof between
the Offeror and the Company, a true copy of which has been
delivered to the Shareholder simultaneously with this Agreement
being entered into.
1.2
Definitions in Support
Agreement
All terms used in this Agreement
that are not defined in Section 1.1 or elsewhere herein and that
are defined in the Support Agreement shall have the respective
meanings ascribed to them in the Support Agreement.
1.3
Schedules
The following Schedule attached
hereto constitutes an integral part of this Agreement:
Schedule 4.1(b) — Shareholders
and Ownership of Shares
ARTICLE 2
COVENANTS OF THE OFFEROR
2.1
Offeror to Make Offer
The Offeror agrees with each
Shareholder that it shall comply with the terms of the Support
Agreement and, without limiting the generality of the foregoing,
the Offeror shall make or cause to be made the Offer for US$12.00
per Share having the terms and conditions thereto set forth in the
Support Agreement and as required by the provisions of the Support
Agreement. In the event that another entity affiliated with
the Offeror makes the Offer in accordance with the terms and
conditions of the Support Agreement, the Offeror shall cause such
other entity to become a party to this Agreement, upon which such
other entity shall become entitled to exercise all of the rights of
the Offeror and subject to all of the obligations of the Offeror
under this Agreement but the Offeror shall continue to be jointly
and severally liable for all such obligations.
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2.2
Changes to Offer
The Offeror shall not, without the
prior written consent of each Shareholder, amend the Support
Agreement or the Offer to: (i) vary or waive the Minimum
Condition; (ii) decrease the consideration per Share; (iii) change
the form of consideration payable under the Offer (other than to
add additional consideration, whether in the form of cash or
securities of the Parent or otherwise); (iv) decrease the number of
Shares in respect of which the Offer is made; (v) impose additional
conditions to the Offer; (vi) otherwise vary the Offer (or any
terms or conditions thereof) in a manner which is adverse to the
Shareholder; or (vii) extend the period of time for mailing the
Offer , except as contemplated in section 2.1(c) of the Support
Agreement.
ARTICLE 3
COVENANTS OF THE
SHAREHOLDER
3.1
General
Each Shareholder hereby covenants
and irrevocably agrees, on a several basis, in favour of the
Offeror that, from the date hereof until the earlier of the
termination of this Agreement in accordance with Article 5, except
as permitted by this Agreement, such Shareholder shall:
(a)
not, and shall cause its general
partners and their respective directors, officers, employees,
financial advisors, counsel, agents, trustees, partners or other
representatives not to, directly or indirectly, (i) solicit,
initiate or encourage any Alternative Transaction
(ii) participate in any discussions or negotiations with any
Person (other than the Offeror and its Subsidiaries and their
respective directors, officers, employees, agents, financial
advisors, counsel or other representatives) in respect of any
Alternative Transaction (other than to refer such Persons to the
provisions of this Agreement and the Support Agreement),
(iii) provide any confidential information relating to the
Company or its Subsidiaries to any Person in connection with any
Alternative Transaction or (iv) otherwise cooperate in any way
with any effort or attempt by any other person to do or seek to do
any of the foregoing, provided, however, that nothing contained in
this section or the other provisions of this agreement shall
prevent such Shareholder or a nominee or representative of such
Shareholder, if a director of the Company, from taking any actions
solely in his or her capacity as a member of the Board of Directors
in respect of an unsolicited bona fide Alternative
Transaction under the terms and conditions set out in the Support
Agreement;
(b)
immediately cease and cause to be
terminated all existing discussions and negotiations, if any, with
any third party or any agent or representative of any third party
conducted before the date of this Agreement with respect to any
Alternative Transaction and request the return or destruction of
all confidential written information provided in connection
therewith;
(c)
not release any third party from any
confidentiality or standstill agreement in respect of the Company
that it is party to;
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(d)
promptly notify the Offeror of any
Alternative Transaction, any bona fide inquiry, proposal,
discussions or negotiation with respect to any Alternative
Transaction of which such Shareholder or any of its directors,
officers, employees, representatives, agents, trustees or partners
becomes aware (and of which the Company or any of its directors,
officers, employees, representatives or agents is not aware),
except to the extent that the Shareholder has been advised by its
legal counsel that to do so would cause a breach of its fiduciary
duties to the Company or any of its Subsidiaries; such notice will
include, to the extent known to such Shareholder, the material
terms and conditions of such Alternative Transaction, inquiry,
proposal, discussion or negotiation. Such notice to the
Offeror shall be made forthwith orally and in writing and shall
indicate, to the extent known to such Shareholder, such details of
the proposal, inquiry or contact as the Offeror may reasonably
request, including the identity of the Person making such proposal,
inquiry or contact and the terms and conditions of such Alternative
Transaction, inquiry, proposal, discussion or
negotiation;
(e)
not option, sell,
transfer, pledge, encumber, grant a security interest in,
hypothecate or otherwise convey any of the Shareholder’s
Shares (or any right or interest therein (legal or equitable)), to
any Person or group or agree to do any of the
foregoing;
(f)
not grant or
agree to grant any proxy, power of attorney or other right to vote
the Shareholder’s Shares, or enter into any voting agreement,
voting trust, vote pooling or other agreement with respect to the
right to vote, call meetings of shareholders or give consents or
approval of any kind with respect to any of the Shareholder’s
Shares;
(g)
not vote or cause
to be voted any of the Shareholder’s Shares in respect of any
proposed action by the Company or its shareholders or affiliates or
any other Person in a manner which would reasonably be regarded as
likely to prevent or delay the successful completion of the
Offer;
(h)
not do indirectly
that which it may not do directly in respect of the restrictions on
its rights with respect to the Shareholder’s Shares pursuant
to this Section 3.1; and
(i)
upon the Offeror
taking up and paying for the Shares tendered by the Shareholder and
acquiring Shares representing at least a majority of the then
outstanding Shares, upon the written request of the Offeror, the
Shareholder will or will cause any nominee or representative of the
Shareholder who acts as a director of the Company or any of its
Subsidiaries to resign in an orderly manner and to assist with the
appointment of such person or persons identified by the Offeror as
a substitute director of the Company.
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3.2
Deposit of the Shareholder’s Shares under the
Offer
Each Shareholder hereby agrees with
the Offeror that it will, as soon as practicable and in any event
on or before the fifteenth Business Day following the making of the
Offer, cause all of its Shareholder’s Shares to be validly
tendered in acceptance of the Offer together with the letter of
transmittal or, if applicable, notice of guaranteed delivery, and
any other documents required in accordance with the Offer, and will
not withdraw its Shareholder’s Shares from the Offer except
as expressly otherwise permitted under this Agreement.
3.3
Co-operation/Substitute
Transaction
If the Offeror concludes after the
date of this Agreement that it is necessary or desirable to proceed
with a form of transaction other than the Offer (including, without
limitation, a plan of arrangement or amalgamation) whereby the
Offeror and/or its affiliates would effectively acquire all the
Shares on economic and other terms and conditions (including,
without limitation, tax treatment) having consequences to each
Shareholder that are no less favourable than those contemplated by
this Agreement, as determined by such Shareholder, acting
reasonably (any such transaction is referred to as a “
Substitute Transaction ”), each Shareholder agrees to
support the completion of the Substitute Transaction in the same
manner as the Offer, including by voting its Shareholder’s
Shares in favour of the Substitute Transaction.
ARTICLE 4
REPRESENTATIONS AND
WARRANTIES
4.1
Representations and Warranties of
the Shareholder
Each Shareholder hereby represents
and warrants to and covenants with the Offeror, on a several basis,
as follows, and acknowledges that the Offeror is relying upon such
representations, warranties and covenants in entering into this
Agreement:
(a)
Incorporation and
Authorization .
Such Shareholder has all necessary power, authority, capacity and
right to enter into this Agreement and to carry out each of its
obligations under this Agreement. This Agreement has been
duly executed and delivered by such Shareholder and constitutes a
legal, valid and binding obligation of such Shareholder enforceable
against it in accordance with its terms, subject to bankruptcy and
insolvency and other laws affecting the enforcement of
creditors’ rights generally and subject to the qualification
that equitable remedies may only be granted in the discretion of a
court of competent jurisdiction.
(b)
Ownership of Shares and Other
Securities . Such
Shareholder is, and will be immediately prior to the Effective
Date, the sole registered and beneficial owner of its
Shareholder’s Shares shown opposite its name as being
beneficially owned in Schedule 4.1(b), with good and marketable
title thereto, free and clear of all Encumbrances, and has full
legal right, power and authority to enter into this Agreement, to
deposit, or to cause the deposit of, its Shareholder’s Shares
under the Offer and to sell, or to cause the sale of, its
Shareholder’s Shares to the Offeror pursuant to the Offer;
upon take-up of and payment for its Shareholder’s Shares,
such Shareholder will have conveyed to the Offeror good and
marketable title to its
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beneficially owned
Shareholder’s Shares, free and clear of any Encumbrances
(excluding any Encumbrances that have been granted by or that may
be claimed in respect of the Offeror).
(c)
No
Conflicts . None of the execution
and delivery of this Agreement by such Shareholder, the
consummation by such Shareholder of the transactions contemplated
hereby nor compliance by such Shareholder with any of the
provisions hereof will violate, conflict with, or result in a
breach of any provision of, require any consent, approval or notice
under, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) or result in a
right of termination or acceleration under, any of the terms,
conditions or provisions of: (i) the certificate of incorporation,
certificate of limited partnership, Articles or by-laws or other
constating documents of such Shareholder; or (ii) any material
Contract to which such Shareholder is a party; or (iii) violate any
judgment, ruling, order, writ, injunction, award, decree, statute,
ordinance, rule or regulation applicable to such
Shareholder.
(d)
No
Agreements . No Person has any
agreement or option, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming an agreement or
option, for the purchase, acquisition or transfer of any of its
Shareholder’s Shares, or any interest therein or right
thereto, except pursuant to this Agreement.
(e)
Voting
. None of
its Shareholder’s Shares is subject to any proxy, power of
attorney, voting agreement, voting trust, vote pooling or other
agreement with respect to the right to vote, c