RESULT IN THE SHAREHOLDERS RECEIVING A GREATER CASH
CONSIDERATION PER SHARE THAN CONTEMPLATED BY THE OFFER OR, IN THE CASE OF AN
ALTERNATIVE TRANSACTION INCLUDING CONSIDERATION OTHER THAN CASH, WHICH IS
OTHERWISE MORE FAVOURABLE TO SHAREHOLDERS FROM A FINANCIAL POINT OF VIEW THAN
THE OFFER, AND (II) WHICH DID NOT RESULT FROM A BREACH OF SECTION 6.3 HEREOF,
(ZZZ)
"SUPPORTING SHAREHOLDERS" MEANS, COLLECTIVELY,
BAKER BROS. INVESTMENTS, L.P., BAKER BROS. INVESTMENTS II, L.P., BAKER BIOTECH
FUND I, L.P., 14159, L.P., BAKER/TISCH INVESTMENTS, L.P., BAKER BROTHERS LIFE
SCIENCES, L.P., AND KENNETH GALBRAITH.
(AAAA)
"TAKE-UP DATE" MEANS THE DATE THAT THE OFFEROR FIRST TAKES
UP AND ACQUIRES SHARES PURSUANT TO THE OFFER.
(BBBB)
"TAX RETURNS" MEANS ALL RETURNS, REPORTS, DECLARATIONS,
ELECTIONS, NOTICES, FILINGS, INFORMATION RETURNS AND STATEMENTS, INCLUDING ALL
AMENDMENTS, SCHEDULES, ATTACHMENTS OR SUPPLEMENTS THERETO, AND WHETHER IN
TANGIBLE, ELECTRONIC OR OTHER FORM, FILED OR REQUIRED TO BE FILED IN RESPECT OF
TAXES.
(CCCC)
"TAXES" MEANS ALL TAXES, DUTIES, FEES, PREMIUMS,
ASSESSMENTS, LEVIES AND OTHER FEES OF ANY KIND WHATSOEVER LEVIED BY ANY
GOVERNMENTAL AUTHORITY OR TO BE PAID UNDER ANY LAWS (INCLUDING, WITHOUT
LIMITATION, INCOME TAX, GOODS AND SERVICES TAX, SALES AND EXCISE TAX, CAPITAL
TAX, TAX DEDUCTIONS, PROPERTY TAX, CORPORATE TAX, CUSTOMS DUTIES AND TRANSFER
FEES, HEALTH, PAYROLL AND EMPLOYMENT TAX, WITHHOLDING
12
TAX, EMPLOYMENT INSURANCE OR CANADA PENSION PLAN CONTRIBUTIONS) AND INCLUDING
ANY INTEREST, PENALTIES, FINES, SURTAXES OR OTHER ADDITIONAL AMOUNTS LEVIED OR
IMPOSED IN RESPECT THEREOF.
(DDDD)
"TECHNICAL INFORMATION" MEANS KNOW-HOW AND RELATED TECHNICAL
KNOWLEDGE, INCLUDING:
(I)
TRADE SECRETS, CONFIDENTIAL INFORMATION
AND OTHER PROPRIETARY KNOW-HOW;
(II)
UNIFORM RESOURCE LOCATORS, DOMAIN NAMES
AND EMAIL ADDRESSES; AND
(III)
DOCUMENTED RESEARCH, FORECASTS, STUDIES,
MARKETING PLANS, MARKET DATA, DEVELOPMENTAL, DEMONSTRATION OR ENGINEERING WORK,
INFORMATION THAT CAN BE USED TO DEFINE A DESIGN OR PROCESS OR PROCURE, PRODUCE,
SUPPORT OR OPERATE MATERIAL AND EQUIPMENT, METHODS OF PRODUCTION AND PROCEDURES,
ALL FORMULAS AND DESIGNS AND DRAWINGS, BLUEPRINTS, PATTERNS, PLANS, FLOW CHARTS,
MANUALS AND RECORDS, SPECIFICATIONS, AND TEST DATA,
that is owned or used by the Company or any of its Subsidiaries for the business
of the Company and its Subsidiaries as currently conducted or that are otherwise
necessary for the Commercialization.
(EEEE)
"TECHNOLOGY" MEANS INTELLECTUAL PROPERTY, TECHNICAL
INFORMATION AND INFORMATION TECHNOLOGY.
(FFFF)
"TSX" MEANS THE TORONTO STOCK EXCHANGE.
1.2
DISCLOSURE OF INFORMATION
(A)
THE PHRASE "AS PREVIOUSLY DISCLOSED" AND
SIMILAR EXPRESSIONS USED IN THIS AGREEMENT WILL BE CONSTRUED FOR ALL PURPOSES OF
THIS AGREEMENT AS REFERRING TO INFORMATION:
(I)
SET FORTH IN THE COMPANY DISCLOSURE
LETTER;
(II)
INCLUDED IN THE DATA ROOM INFORMATION; OR
(III)
FILED PUBLICLY BY THE COMPANY WITH THE
SECURITIES AUTHORITIES.
(B)
DISCLOSURE OF INFORMATION IN THE MANNER SET
OUT IN SECTION 1.2(A) SHALL BE DEEMED TO BE DISCLOSURE OF SUCH INFORMATION FOR
ALL PURPOSES OF THIS AGREEMENT, WHETHER OR NOT SUCH DISCLOSURE REFERS TO ONE OR
MORE ARTICLES, SECTIONS OR SCHEDULES.
1.3
KNOWLEDGE
In this Agreement, whenever a representation or warranty is made on the basis of
the knowledge or awareness of the Company, Parent or Acquisition Company, such
knowledge