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Document/Exhibit Description Pages Size
1: F-10 Registration Statement of a Foreign Private Issuer HTML 1.14M
(Not Effective Immediately)
2: EX-3.1 Articles of Angiotech Pharmaceuticals, Inc. HTML 331K
11: EX-3.10 Memorandum and Articles of Association HTML 195K
12: EX-3.11 Memorandum and Articles of Association HTML 180K
13: EX-3.12 Memorandum and Articles of Association HTML 180K
14: EX-3.13 Memorandum and Articles of Association HTML 180K
15: EX-3.14 Memorandum and Articles of Association HTML 180K
16: EX-3.15 Order of Amalgamation HTML 201K
17: EX-3.16 Partnership Agreement HTML 184K
18: EX-3.17 Order of Amalgamation HTML 200K
19: EX-3.18 Certificate of Merger of Afmedica, Inc. HTML 38K
20: EX-3.19 Bylaws of Afmedica, Inc. HTML 127K
3: EX-3.2 Articles of 0741693 B.C. Ltd. HTML 252K
21: EX-3.20 Certificate of Incorporation HTML 41K
22: EX-3.21 Amended and Restated Bylaws HTML 65K
23: EX-3.22 Certificate of Incorporation HTML 40K
24: EX-3.23 Bylaws of American Medical Instruments, Inc. HTML 60K
25: EX-3.24 Certificate of Incorporation HTML 95K
26: EX-3.25 Bylaws of Angiotech Biocoatings Corp. HTML 52K
27: EX-3.26 Articles of Organization HTML 32K
28: EX-3.27 Operating Agreement HTML 62K
29: EX-3.28 Amended and Restated Articles of Incorporation HTML 45K
30: EX-3.29 Bylaws of Angiotech Pharmaceuticals (Us), Inc. HTML 62K
4: EX-3.3 Articles of 0761717 B.C. Ltd. HTML 283K
31: EX-3.30 Certificate of Incorporation HTML 42K
32: EX-3.31 Bylaws of B.G. Sulzle, Inc. HTML 59K
33: EX-3.32 Articles of Organization HTML 43K
34: EX-3.33 Operating Agreement HTML 118K
35: EX-3.34 Certificate of Incorporation HTML 42K
36: EX-3.35 Bylaws of Manan Medical Products, Inc. HTML 60K
37: EX-3.36 Certificate of Incorporation HTML 40K
38: EX-3.37 Bylaws of Medical Device Technologies, Inc. HTML 59K
39: EX-3.38 Certificate of Merger HTML 38K
40: EX-3.39 Bylaws of of Neucoll, Inc. HTML 64K
5: EX-3.4 Memorandum and Articles of Association HTML 180K
41: EX-3.40 Articles of Incorporation HTML 36K
42: EX-3.41 Bylaws of Point Technologies, Inc. HTML 50K
43: EX-3.42 Certificate of Incorporation HTML 42K
44: EX-3.43 Bylaws of Surgical Specialties Corporation HTML 60K
45: EX-3.44 Certificate of Incorporation HTML 59K
46: EX-3.45 Bylaws of Quill Medical, Inc. HTML 120K
47: EX-3.46 Certificate of Incorporation HTML 43K
48: EX-3.47 Amended and Restated Bylaws HTML 61K
49: EX-3.48 Memorandum and Amended Articles of Association HTML 81K
50: EX-3.49 Memorandum & Articles of Association HTML 177K
6: EX-3.5 Memorandum and Articles of Association HTML 180K
51: EX-3.50 Memorandum & Articles of Association HTML 177K
7: EX-3.6 Memorandum and Articles of Association HTML 180K
8: EX-3.7 Memorandum and Articles of Association HTML 195K
9: EX-3.8 Memorandum and Articles of Association HTML 195K
10: EX-3.9 Memorandum and Articles of Association HTML 195K
52: EX-4.1 Indenture HTML 658K
53: EX-4.2 Supplemental Indenture HTML 42K
54: EX-5.1 Opinion of Sullivan & Cromwell LLP, Special Us HTML 34K
Counsel
55: EX-5.2 Opinion of Irwin, White & Jennings, British HTML 40K
Columbia Counsel
56: EX-5.3 Opinion of Stewart McKelvey, Nova Scotia Counsel HTML 43K
57: EX-5.4 Opinion of Lionel Sawyer & Collins, Nevada Counsel HTML 33K
58: EX-5.5 Opinion of Heller Ehrman White & McAuliffe LLP, HTML 57K
Washington Counsel
59: EX-5.6 Opinion of Faegre & Benson LLP, Colorado Counsel HTML 42K
60: EX-5.7 Opinion of McConnell Valdes, Puerto Rico Counsel HTML 41K
61: EX-5.8 Opinion of Herbert Smith LLP, England & Wales HTML 74K
62: EX-23.1 Consent of Ernst & Young LLP HTML 29K
63: EX-23.2 Consent of Pricewaterhousecoopers LLP HTML 27K
64: EX-23.3 Consent of Hughes Pittman and Gupton LLP HTML 28K
65: EX-25.1 Statement of Eligibility of the Trustee on Form HTML 67K
T-1
66: EX-99.1 Letter of Transmittal HTML 114K
67: EX-99.2 Notice of Guaranteed Delivery HTML 38K
| Partnership Agreement |
Exhibit 3.16
ANGIOTECH INVESTMENT PARTNERSHIP
PARTNERSHIP AGREEMENT
Angiotech Pharmaceuticals, Inc.
-and-
3091796 Nova Scotia Company
| Page | ||||
| ARTICLE 1 - INTERPRETATION | 1 | |||
| 1.1 |
Definitions | 1 | ||
| 1.2 |
Heading | 4 | ||
| 1.3 |
Gender | 4 | ||
| 1.4 |
Interpretation | 4 | ||
| 1.5 |
Schedules | 5 | ||
| ARTICLE 2 - THE PARTNERSHIP | 5 | |||
| 2.1 |
Formation of Partnership | 5 | ||
| 2.2 |
Number of Partners | 5 | ||
| 2.3 |
Rights and Liabilities | 5 | ||
| 2.4 |
Filing of Certificate | 5 | ||
| 2.5 |
Term of Partnership | 5 | ||
| 2.6 |
Fiscal Year | 6 | ||
| ARTICLE 3 - NAME, OFFICE AND ADDRESSES | 6 | |||
| 3.1 |
Name | 6 | ||
| 3.2 |
Registered Address | 6 | ||
| 3.3 |
Address of Partners | 6 | ||
| ARTICLE 4 - BUSINESS OF THE PARTNERSHIP | 6 | |||
| 4.1 |
Purpose and Business | 6 | ||
| 4.2 |
Powers | 7 | ||
| 4.3 |
Qualification to do Business | 7 | ||
| 4.4 |
Right to Compete and Co-Invest | 7 | ||
| ARTICLE 5 - CAPITAL AND UNITS | 7 | |||
| 5.1 |
The Units | 7 | ||
| 5.2 |
Acquisition of Units | 8 | ||
| 5.3 |
Additional Partner | 8 | ||
| 5.4 |
Transfer of Partner Units | 8 | ||
| 5.5 |
No Withdrawal or Loans, No Action for Partition | 9 | ||
| 5.6 |
Register | 9 | ||
| 5.7 |
Inspection of Register | 9 | ||
| 5.8 |
Non-Recognition of Trust Arrangements | 10 | ||
| 5.9 |
Unit Certificate | 10 | ||
| 5.10 |
Lost Unit Certificate | 10 | ||
| ARTICLE 6 - PARTNERSHIP ACCOUNTS | 10 | |||
| 6.1 |
Capital Accounts | 10 | ||
| 6.2 |
No Interest on Capital Account | 10 | ||
| 6.3 |
No Right of Withdrawal | 10 | ||
| 6.4 |
Negative Balance in Capital Account | 11 | ||
| ARTICLE 7 - PARTICIPATION IN PROFITS AND LOSSES | 11 | |||
| 7.1 |
Allocation to Partners | 11 | ||
| 7.2 |
Distributions | 11 | ||
| 7.3 |
Repayment of Excess Distribution | 11 | ||
| 7.4 |
No Allocation on Transfer | 11 | ||
| 7.5 |
Reserves and Distribution | 11 | ||
| 7.6 |
Adjustments | 12 | ||
| 7.7 |
Adjustment Lien | 12 | ||
| 7 8 |
Return of Capital Account | 12 | ||
| 7.9 |
Clearance Certificates | 12 | ||
| ARTICLE 8 - MANAGEMENT OF THE PARTNERSHIP BUSINESS | 12 | |||
| 8.1 |
Management of the Partnership | 12 | ||
| 8.2 |
Duties and Powers of Partners | 13 | ||
| 8.3 |
Indemnification of Partners | 13 | ||
| 8.4 |
Confidentiality of Information | 13 | ||
| 8.5 |
Compensation and Reimbursement | 13 | ||
| ARTICLE 9 - STATUS OF PARTNERS | 14 | |||
| 9.1 |
Liability of Partners | 14 | ||
| 9.2 |
Representations, Warranties and Covenants of the Partners | 14 | ||
| 9.3 |
Bankruptcy of Partner | 14 | ||
| 9.4 |
Default | 14 | ||
| ARTICLE 10 - MEETINGS | 16 | |||
| 10.1 |
General Meetings | 16 | ||
| 10.2 |
Special Meeting | 16 | ||
| 10.3 |
Notice of Meeting | 16 | ||
| 10.4 |
Quorum | 16 | ||
| 10.5 |
Votes | 16 | ||
| 10.6 |
Proxies | 16 | ||
| 10.7 |
Validity of Proxies | 17 | ||
| 10.8 |
Solicitation of Proxies | 17 | ||
| 10.9 |
Minutes | 17 | ||
| 10.10 |
Conduct of Meeting | 17 | ||
| 10.11 |
Resolutions Binding | 17 | ||
| ARTICLE 11 - ACCOUNTING AND FINANCIAL INFORMATION | 18 | |||
| 11.1 |
Books of Account | 18 | ||
| 11.2 |
Financial Information | 18 | ||
| 11.3 |
Tax Reporting Information | 18 | ||
| ARTICLE 12 - DISSOLUTION AND LIQUIDATION | 18 | |||
| 12.1 |
Dissolution | 18 | ||
| 12.2 |
Continuity | 18 | ||
| 12.3 |
Receiver | 19 | ||
| 12.4 |
Distribution on Liquidation | 19 | ||
| 12.5 |
Statement | 19 | ||
| 12.6 |
Cash Distribution | 20 | ||
| 12.7 |
Termination | 20 | ||
| ARTICLE 13 - AMENDMENT | 20 | |||
| 13.1 |
Amendments to Partnership Agreement | 20 | ||
| 13.2 |
Prohibited Amendments | 20 | ||
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| ARTICLE 14 - MISCELLANEOUS | 20 | |||
| 14.1 |
Notices | 20 | ||
| 14.2 |
Provisions Severable | 20 | ||
| 14.3 |
Time | 21 | ||
| 14.4 |
Governing Law | 21 | ||
| 14.5 |
Further Assurances | 21 | ||
| 14.6 |
Rights and Remedies | 21 | ||
| 14.7 |
Successors and Assigns | 21 | ||
| ARTICLE 15 - EXECUTION | 22 | |||
| 15.1 |
Execution | 22 | ||
| Schedule A - List of Capital Contributions | 23 | |||
| Schedule B - Unit Certificate | 24 | |||
iii
ANGIOTECH INVESTMENT PARTNERSHIP
THIS PARTNERSHIP AGREEMENT dated for reference October 28, 2004,
BETWEEN:
ANGIOTECH PHARMACEUTICALS, INC., with an office at 1618 Station Street, Vancouver, BC, V6A 1B6
(“Angiotech”)
AND:
3091796 NOVA SCOTIA COMPANY, with an office at 1618 Station Street, Vancouver, BC, V6A 1B6
(“NSCo”)
WHEREAS:
| A. | Angiotech and NSCo (the “Partners”) wish to form a partnership for the purpose of carrying on in common through the Angiotech Investment Partnership the business relating to (i) the owning directly and indirectly and actively managing certain present non-Canadian Affiliates and future corporate acquisitions with a view to profit, (ii) investing and managing a portfolio of cash, short-term and long-term investments to facilitate the acquisition of new Affiliates, (iii) the owning and leasing of assets, and (iv) carrying on all incidental activities relating thereto; and |
| B. | The Partners desire to provide for the manner in which the management of the business and affairs of the Partnership shall be conducted; |
NOW THEREFORE THIS AGREEMENT WITNESSES that for good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the Partners mutually covenant and agree as follows:
ARTICLE 1
INTERPRETATION
| 1.1 | Definitions |
In this Agreement, unless the context otherwise requires, the following words or expressions shall have the following meanings:
| (a) | “Affiliate” means |
| (I) | any Person directly or indirectly controlling, controlled by or under common control with that Person, |
1
| (II) | any Person holding or controlling 10 per cent or more of the outstanding voting shares of that Person, |
| (III) | an officer, director or partner of that Person; |
| (b) | “Auditor” means an accountant who is a member, or a partnership whose partners are members in good standing of the Canadian Institute of Chartered Accountants and that is appointed by the Partners as Auditor or as accountant for the Partnership, and shall be initially Ernst & Young LLP; |
| (c) | “Capital Account” means the capital account established and maintained by the Partners pursuant to Section 6.1; |
| (d) | “Capital Contribution” means the dollar value contributed in cash or kind by a Partner to the Partnership for such Partner’s Partnership Interest less the fair market value of any consideration received by the Partner from the Partnership in respect of the contribution during the term of the Partnership, as initially set out in Schedule “A” and as may be modified from time to time under the terms of this Agreement. In the case of a contribution in kind it shall be the fair market value of such contribution minus any liabilities assumed by the Partnership in respect of the contribution; |
| (e) | “Certificate” means the Certificate filed under the Partnership Act to establish the Partnership as a partnership within the meaning of the Partnership Act; |
| (f) | “Defaulting Partner” means any Partner that shall default at any time in its obligations pursuant to this Agreement; |
| (g) | “Fiscal Period” means the fiscal period of the Partnership which will normally be 12 months in length; |
| (h) | “Income” in respect of any period, means the net income of the Partnership in respect of the period as determined in accordance with generally accepted accounting principles consistently applied as practiced in the Province of British Columbia; |
| (i) | “Income Tax Act” means the Income Tax Act of Canada, R.S.C. 1985, c. 1 (5th Supplement) and amendments thereto; |
| (j) | “Loss” in respect of any period, means the net loss of the Partnership in respect of the period as determined in accordance with generally accepted accounting principles consistently applied as practiced in the Province of British Columbia; |
| (k) | “Operating Expenses” means all Organizational Expenses and expenses properly incurred by or on behalf of the Partnership in connection with regular operation of its business and the administration of the Partnership (including the dissolution of the Partnership) including without limitation those incurred in respect of: |
| (I) | office and inventory expenses; |
| (II) | legal and accounting and other professional fees; |
| (III) | employee salaries and benefits; |
2
| (IV) | third party expenses incurred for the purpose of acquiring or disposing of Property or protecting or maximizing the value of Partnership Property; |
| (V) | consulting expenses associated with a specific technical or market analysis of a prospective or current investment; |
| (VI) | insurance expenses incurred for the benefit of protecting the Property and any individual participating as a director, officer, partner, trustee or similar position of an investment on behalf of the Partnership; |
| (VII) | taxes and permit and licence fees imposed on the Partnership; |
| (VIII) | interest expense and other carrying charges on all debts of the Partnership; |
| (IX) | valuation fees; and |
| (X) | audit fees; |
| (l) | “Organizational Expenses” means all expenses (including, without limitation, general administration, travel, printing, legal and accounting fees and expenses) incurred by the Partnership and any Partner in organizing the Partnership; |
| (m) | “Partner” means a Person that is admitted to the Partnership or that is a successor to any Partner; |
| (n) | “Partnership” means the Angiotech Investment Partnership formed under the terms of this Agreement; |
| (o) | “Partnership Act” means the Partnership Act (British Columbia) R.S.B.C. 1996 c. 348 as amended from time to time; |
| (p) | “Person” means an individual, corporation, body corporate, partnership, joint venture, association, trust or unincorporated organization or any trustee, executor, administrator or other legal representative; |
| (q) | “Prime Rate” means the floating annual rate of interest that is declared to the Partnership from time to time by the main branch of the Royal Bank of Canada in Vancouver, British Columbia, to be the prime rate of interest charged by that bank for Canadian dollar loans in Canada, payable on demand; |
| (r) | “Property” means all the property, assets and undertaking of the Partnership; |
| (s) | “Resolution” means a unanimous resolution by the Partners either by votes cast or a written resolution signed in one or more counterparts; |
| (t) | “Taxable Income” or “Tax Loss” in respect of any Fiscal Period means, respectively, the amount of income or loss of the Partnership for the period in accordance with the Income Tax Act (including the amounts of taxable gain or allowable capital loss from the disposition of any capital property of the Partnership); |
3
| (u) | “Unit” means the interest of a Partner in the Partnership as set out in Article 5 hereof; and |
| (v) | “Unit Certificate” means a certificate in the form set out in Schedule “B” in evidence of the Unit or Units held by a Partner. |
| 1.2 | Headings |
The headings used throughout this Agreement are solely for convenience of the parties and are not to be used as an aid in the interpretation of this Agreement.
| 1.3 | Gender |
The necessary grammatical changes required to enable the terms of this Agreement to apply in the plural sense and to corporations, associations, partnerships, or individuals or to males or females are assumed throughout as though fully expressed.
| 1.4 | Interpretation |
For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
| (a) | “this Agreement” means the Angiotech Investment Partnership Agreement as it may from time to time be supplemented or amended by one or more agreements entered into pursuant to the applicable provisions hereof; |
| (b) | all references in this Agreement to designated “Articles”, “Sections”, “Paragraphs” and other subdivisions are to the designated Articles, Sections, Paragraphs and other subdivisions of this Agreement; |
| (c) | the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Paragraph or other subdivision; |
| (d) | the word “including”, when following any general statement, term or matter, shall not be construed to limit such general statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language, such as “without limitation” or “but not limited to” or words of similar import, are used with reference thereto but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter; |
| (e) | all accounting terms not otherwise defined herein have the meanings commonly understood to apply to them under generally accepted accounting principles; |
| (f) | all references to currency herein are deemed to mean Canadian currency; |
| (g) | any reference to a statute shall include and shall be deemed to be a reference to such statute and to the regulations made pursuant thereto, with all amendments made thereto and in force from time to time, and to any statute or regulation that may be |
4
| passed which has the effect of supplementing or superseding the statute so referred to or the regulations made pursuant thereto; |
| (h) | any reference to an entity shall include and shall be deemed to be a reference to any entity that is a successor to such entity. |
| 1.5 | Schedules |
The following are Schedules to this Agreement:
| Schedule “A” - |
List of Capital Contributions | |
| Schedule “B” - |
Form of Unit Certificate | |
ARTICLE 2
THE PARTNERSHIP
| 2.1 | Formation of Partnership |
The Partners hereby create, establish and form a partnership in accordance with and subject to the provisions of the Partnership Act.
| 2.2 | Number of Partners |
The Partnership shall have two or more Partners. Without dissolving or determining the Partnership, additional Partners may be admitted to the Partnership on the terms and conditions contained herein.
| 2.3 | Rights and Liabilities |
The rights and liabilities of the Partners are as provided in the Partnership Act except as otherwise expressly set out in this Agreement.
| 2.4 | Filing of Certificate |
The Partners shall execute all certificates and other documents as are required to duly register the Partnership as a general partnership with the rights described in Part 2 of the Partnership Act. From time to time, each additional Partner shall immediately execute all certificates and other documents consistent with the terms of this Agreement necessary for the Partnership to accomplish all filing, recording, publishing and other acts as may be appropriate to comply with all requirements for the operation of the Partnership as a partnership in British Columbia.
| 2.5 | Term of Partnership |
The term of the Partnership commenced on October 26, 2004 and shall continue until the dissolution and termination of the Partnership, being the earliest of:
| (a) | the date on which the Partnership is dissolved in accordance with the terms of this Agreement, including without limitation Section 12.1; or |
5
| (b) | the date on which the Partnership is dissolved by operation of law or by judicial decree. |
| 2.6 | Fiscal Year |
The fiscal year end of the Partnership for financial statement and tax purposes shall be September 30, and shall thereafter continue to be such date unless and until changed in accordance with this Agreement.
ARTICLE 3
NAME, OFFICE AND ADDRESSES
| 3.1 | Name |
The name of the Partnership is “Angiotech Investment Partnership” or such other name as may from time to time the Partnership by Resolution may adopt.
| 3.2 | Registered Address |
The registered address of the Partnership shall be Suite 2620, 1055 West Georgia Street, Vancouver, British Columbia, V6E 3R5 and the Partnership may maintain other offices and places of business as the Partnership by a Resolution may from time to time determine.
| 3.3 | Address of Partners |
The address of the Partners shall be those set forth above or as subsequently amended by written notice to the Partnership.
ARTICLE 4
BUSINESS OF THE PARTNERSHIP
| 4.1 | Purpose and Business |
The purpose and business of the Partnership shall be:
| (a) | to own directly and indirectly and actively manage certain present non-Canadian Affiliates with a view to profit; |
| (b) | to seek, investigate and acquire new investments directly or indirectly with a view to profit. |
| (c) | to invest and manage a portfolio of cash, short-term and long-term investments to facilitate the acquisition of new Affiliates; |
| (d) | to own and lease assets; and |
| (e) | to carry on all incidental activities relating thereto. |
6
| 4.2 | Powers |
Unless specified in this Agreement, the Partnership shall have the power without limitation to do any and every act and thing necessary, proper, convenient or incidental to the accomplishment of its purposes and business, including, without limitation, all powers set forth in Article 8.
| 4.3 | Qualification to do Business |
The Partners shall cause the Partnership to qualify to do business and be registered as a general partnership in the Province of British Columbia and in such other jurisdictions as shall be required to carry out the purposes and business of the Partnership.
| 4.4 | Right to Compete and Co-Invest |
A Partner, without the consent of the other Partners, may engage in or hold an interest in any other business, venture, investment or activity whether or not similar to or competitive with the business of the Partnership and shall not account for and pay over to the Partnership any profits made by the Partner in that competing business. If the Partnership is not able to or does not wish to have the Partnership subscribe for or otherwise acquire all of the investment or other rights available to the Partnership, any Partner or its Affiliates may co-invest in such investment or rights. Notwithstanding the foregoing, no competition nor co-investment by a Partner or its Affiliate will be permitted if such purchase:
| (a) | would violate any applicable securities laws; |
| (b) | would result in the Partnership being treated as an association taxable as a corporation (or in any manner less advantageous for the Partners than as a partnership) for United States or Canadian federal income tax or withholding tax purposes; or |
| (c) | would affect the Partnership’s existence or qualification as a general partnership under any applicable law. |
ARTICLE 5
CAPITAL AND UNITS
| 5.1 | The Units |
The capital of the Partnership is divided into an unlimited number of Units. All issued Units shall, unless otherwise expressly provided in this Agreement, have the same rights and obligations, including:
| (a) | the right to vote to the extent permitted by this Agreement; and |
| (b) | the right to allocations of Income or Loss and to cash distributions from the Partnership as provided in this Agreement. |
7
For greater certainty the interests of all Partners are described by reference to Units of the Partnership that are identical in all respects.
| 5.2 | Acquisition of Units |
As set out in Schedule “A”, the initial Capital Contribution of Angiotech shall represent 99% of the total Capital Contributions and the initial Capital Contribution of NSCo shall represent 1% of the total Capital Contributions. Angiotech shall be issued 990,000 Units and NSCo 10,000 Units in consideration of their respective Capital Contributions. Under a purchase and sale agreement dated October 28, 2004 and anticipated agreements between Angiotech and the Partnership, the value of Capital Contributions by Angiotech may be adjusted upward and downward by those parties. If such adjustments occur, Angiotech may be issued more Units or may sell back to the Partnership Units previously issued to it, without further consideration, as applicable. If such an adjustment occurs in Angiotech’s Capital Contribution, a proportionate adjustment will be made to the Capital Contribution of NSCo and the Partnership will either return capital advanced by NSCo to the Partnership in excess of its adjusted Capital Contribution amount or NSCo shall advance additional cash payments to equal the increase in the adjusted NSCo Capital Contribution. Subject to Paragraph 9.4 (b) or unless otherwise determined by the Partnership by Resolution, thereafter each Partner shall make Capital Contributions and receive Units on the same proportionate basis within 10 business days of receiving written notice from the Partnership for the purposes of funding:
| (a) | the acquisition of Property and cash investments and generally fulfilling the purposes of the Partnership as determined by the Partnership; |
| (b) | Organizing Expenses and Operating Expenses; |
| (c) | Losses; and |
| (d) | any net liabilities of the Partnership. |
| 5.3 | Additional Partner |
The Partnership by Resolution shall approve or disapprove the issuance of Units to an additional Partner into the Partnership from time to time on such terms as set out in the Resolution. Each Partner shall cause the Partnership to make such filing, recording, and publishing and do such other acts as may be appropriate to comply with all requirements of the Partnership Act in respect of the admissions of Partners and all Partners shall do all acts necessary to further the admission of any additional Partner.
| 5.4 | Transfer of Partner Units |
| (a) | A Partner may not sell, assign, transfer, pledge, mortgage or otherwise dispose of all or any of its Units in the Partnership (including any transfer or assignment of all or a part of its Units to a person who becomes an assignee of a beneficial interest in Partnership profits, losses and distributions), except to an Affiliate of such Partner which is not a non-resident of Canada, a partnership or a “financial institution” for the purposes of Section 142.2 of the Income Tax Act, unless the Partnership has consented to such transfer or assignment in writing; |
8
| (b) | Notwithstanding the other provisions of this Section 5.4, no transfer of any Unit of a Partner will be made (and no proposed transfer will be deemed effective for any purpose or vest any rights in the proposed transferee) if such transfer: |
| (I) | would violate any applicable securities law; |
| (II) | would result in the Partnership being treated as an association taxable as a corporation (or in any manner less advantageous for the Partners than as a partnership) for United States or Canadian federal income tax or withholding tax purposes; |
| (III) | would affect the Partnership’s existence or qualification as a general partnership under any applicable law; or |
| (IV) | would result in adverse tax or financial consequences to the Partnership or other Partners including any transfer, which would result in the Partnership being subject to additional withholding tax obligations. |
| 5.5 | No Withdrawal or Loans, No Action for Partition |
Subject to the provisions of Section 5.4 and Paragraph 9.4 (b), no Partner may withdraw as a Partner of the Partnership or demand redemption of its Units, nor shall any Partner be required to withdraw from the Partnership, nor may a Partner borrow or withdraw any portion of its Capital Account from the Partnership or pledge its Units. No Partner shall be entitled to bring an action for partition or sale of any of the Property.
| 5.6 | Register |
The Partnership shall:
| (a) | maintain a registered office for the Partnership; |
| (b) | maintain at the registered office a register of Partners to record the names and addresses of the Partners and the number and particulars of the Units issued to it; |
| (c) | maintain such other records as may be required by law; |
| (d) | make on behalf of the Partnership all recordings or filings with any governmental authority that are required to be made by the Partnership; and |
| (e) | keep a copy of the Certificate and a copy of this Agreement at the registered office. |
The Partnership shall be authorized to make such reasonable rules and regulations as it may consider necessary or desirable in connection with the services to be performed.
| 5.7 | Inspection of Register |
Any Partner, or an agent of a Partner duly authorized in writing, shall have the right to inspect and take extracts from the register of Partners during normal business hours to obtain a copy of the
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register of Partners not more than 10 days after the date of filing of its written request therefor with the Partnership at the Partnership’s registered address.
| 5.8 | Non-Recognition of Trust Arrangements |
The Partnership shall not be obliged to recognize, acknowledge or account to any trust arrangement, charge, pledge, or equity with respect to any Partner’s Units and shall not recognize any Person as having any such interest except for the Person recorded on the register of Partners as the holder of such Units. The receipt of the Person recorded on the register of Partners shall be a sufficient discharge for all amounts paid in respect of such Units and from all liability therefor.
| 5.9 | Unit Certificate |
Upon acceptance by the Partnership of a subscription for a whole Unit or any integral multiple thereof and payment of the subscription price for such Unit, the Partnership shall deliver to such subscriber a Unit Certificate specifying the number of Units held by such subscriber. The Partnership shall enter the subscriber on the Register as a Partner and on the Certificate as a Partner. Every Unit Certificate shall be signed manually by at least one representative of the Partnership.
| 5.10 | Lost Unit Certificate |
If a Unit Certificate has been defaced, lost, destroyed, or wrongly taken, the Partnership shall cause a new Unit Certificate to be issued therefor upon the Partner in whose name the Unit Certificate is recorded filing with the Partnership proof of loss and indemnity bond in form and in an amount sufficient to indemnify and hold harmless the Partnership from any costs, damages, liabilities or expenses incurred as a result of issuing such new Unit Certificate and satisfies such other reasonable requirements as are imposed by the Partnership.
ARTICLE 6
PARTNERSHIP ACCOUNTS
| 6.1 | Capital Accounts |
The Partnership shall establish and maintain a Capital Account on the books of the Partnership for each Partner to which will be credited the Capital Contributions by such Partner and all Income and all other amounts to which the Partner is entitled (which shall not include the Capital Contributions) and to which Losses and all distributions to such Partner will be debited, subject to such adjustments as required under this Agreement.
| 6.2 | No Interest on Capital Account |
No Partner is entitled to receive interest on the amount of its Capital Contribution or the amount reflected in its Capital Account.
| 6.3 | No Right of Withdrawal |
No Partner shall have any right to withdraw or make a demand for withdrawal of any part of its Capital Account or receive any other distribution from the Partnership except as expressly
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provided for in this Agreement and unless such withdrawal satisfies the requirements of the Partnership Act.
| 6.4 | Negative Balance in Capital Account |
The interest of a Partner in the Partnership will not terminate by reason of a negative balance in its Capital Account.
ARTICLE 7
PARTICIPATION IN PROFITS AND LOSSES
| 7.1 | Allocation to Partners |
Except as specifically provided otherwise in this Agreement, where any amount is, pursuant to any provision of this Agreement, allocated or distributed among Partners, including the allocation of Income, Losses, Taxable Income and Tax Losses, such amount shall be allocated at least once in each Fiscal Period among the Partners in proportion to their respective number of Units unless otherwise determined by Resolution.
| 7.2 | Distributions |
The Partnership shall distribute to the Partners Income, capital, and other amounts determined by the Partnership at such time as determined by the Partnership.
| 7.3 | Repayment of Excess Distribution |
If, as determined by the Partnership, any Partner has received a distribution from the Partnership which exceeds the entitlement of such Partner, such Partner shall forthwith repay to the Partnership the amount thereof upon receipt of notice to such effect from the Partnership and if such amount has not been repaid the Partnership may, in addition to any other remedies it may have, deduct such amount from any subsequent distribution to such Partner.
| 7.4 | No Allocation on Transfer |
If at any time during the fiscal year of the Partnership, a Partner shall assign or transfer its Units, no share of Income or Loss or other distribution of the Partnership relating to the fiscal year during which such assignment or transfer takes place shall be allocated to such Partner’s Capital Account as at the date of sale or transfer. All such amounts shall be credited to the Capital Accounts of the Partners in accordance with those Partners that were parties to this Agreement at the end of such fiscal year.
| 7.5 | Reserves and Distribution |
The Partnership shall regularly determine the amount of the Income available for distribution to the Partners and in making such determination shall reserve such funds as, in the opinion of the Partnership, are required to meet the obligations of the Partnership. Surplus cash that the Partnership from time to time determines is available for distribution to the Partners shall be so distributed to the extent permitted by law. Any such distribution shall be made to each Partner in accordance with its number of Units held provided and the Partnership shall adjust the Capital Accounts of the Partners accordingly upon making such distribution.
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| 7.6 | Adjustments |
If the Auditors of the Partnership determine that the share of a Partner in the Income or Loss of the Partnership differs from its share of the Income or Loss as determined by the Partnership then the determination of the Auditor shall be deemed to be correct and binding upon the Partnership and the Partnership will cause the necessary adjustments to be made by payment to the Partner or by payment from the Partner as the case may be.
| 7.7 | Adjustment Lien |
If as a result of an adjustment pursuant to Section 7.6, a Partner is required to make payment to the Partnership, then that Partner hereby grants a lien in favour of the Partnership equal to the amount owed by the Partner and will pay interest on that amount at the Prime Rate plus 2 per cent compounded semi-annually calculated from the date of notice of adjustment given under this Paragraph until the adjustment sum is fully paid. The Partnership will, within 7 days after receipt of the determination of the Auditor of the Partnership, notify in writing each Partner whose share of the profits is to be adjusted of the amount of the adjustment sum together with a cheque for that sum payable to that Partner or a request for payment in respect of the sum payable by a Partner.
| 7.8 | Return of Capital Account |
A Partner is only entitled to demand a return of its Capital Account upon the dissolution, winding-up or liquidation of the Partnership. Upon dissolution, winding-up or liquidation of the Partnership, the Partnership will, after making all payments due to creditors, return to each Partner from the Property of the Partnership on a proportionate basis the amount reflected in that Partner’s Capital Account, to the extent such an amount is available.
| 7.9 | Clearance Certificates |
In the event that any Partner is not a resident of Canada for purposes of the Income Tax Act at the time of disposition of Property and at the time of any distribution, the Partnership shall obtain for that Partner a clearance certificate issued pursuant to section 116 of the Income Tax Act, or an opinion of legal counsel acceptable to the Partnership that no section 116 clearance certificate is required in respect of such disposition or distribution.
ARTICLE 8
MANAGEMENT OF THE PARTNERSHIP BUSINESS
| 8.1 | Management of the Partnership |
| (a) | Other than as set out in this Article 8, the Partnership shall not delegate to any Partner nor any other Person discretion in the management and control of the business of the Partnership and the Partnership shall make all decisions affecting the Partnership business by way of Resolution; |
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| (b) | Angiotech shall be solely responsible for and have full, exclusive and complete discretion to make such determinations regarding the capital cost allowance and other discretionary tax deductions claimed by the Partnership in each taxation year, which will be binding upon all Partners; |
| (c) | NSCo shall be solely responsible for and have full, exclusive and complete discretion and authority to make such elections referred to in Subsection 96(3) of the Income Tax Act and other tax elections, including without limitation elections referred to in Subsections 97(2) and 98(3) on behalf of the Partnership and the Partners, as required, which will be binding upon all Partners; and |
| (d) | The Partnership may, by Resolution, delegate administrative and non-material management matters to one or more Partners or other Persons. |
| 8.2 | Duties and Powers of Partners |
Each Partner, in discharging its exclusive responsibility set out in Paragraphs 8.1(b) and 8.1(c) shall contribute its services to the Partnership in good faith and in the best interests of the Partnership, and exercise the care, diligence and skill that a prudent investor would exercise under similar circumstances.
| 8.3 | Indemnification of the Partners |
Each Partner shall indemnify the Partnership and each other Partner, their respective officers, directors, employees or agents from and against losses, expenses, damages or injuries suffered or sustained by reason of acts, omissions or alleged acts or omissions arising out of the activities and omissions of such Partner on behalf of the Partnership.
| 8.4 | Confidentiality of Information |
Each Partner will maintain the confidentiality of technical, financial and other information and data which it may obtain through or on behalf of the Partnership, the disclosure of which may adversely affect the interests of the Partnership except to the extent that disclosure is required by law or is in the best interests of the Partnership and the Partners will utilize the information and data only for the business of the Partnership.
| 8.5 | Compensation and Reimbursement |
No Partner shall be entitled to any compensation for actions taken on behalf of the Partnership unless such action was taken due to the breach of this Agreement by another Partner. Every Partner shall be reimbursed by the Partnership for all Organizing Expenses and Operating Expenses actually incurred and paid by it in the performance of its duties hereunder in accordance with the terms hereof, including any tax payable.
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ARTICLE 9
STATUS OF PARTNERS
| 9.1 | Liability of Partners |
Subject to the provisions of the Partnership Act and this Agreement, a Partner shall have unlimited liability for any and all of the debts and obligations of the Partnership or any and all of the losses thereof and such further claims, assessments or contributions required by the Partnership.
| 9.2 | Representations, Warranties and Covenants of the Partners |
Each Partner represents and warrants to and covenants with the Partnership and each other Partner that such Partner:
| (a) | is a duly incorporated body corporate and that so long as it is a Partner of the Partnership it shall maintain its corporate existence; |
| (b) | has and shall continue to have the appropriate capacity to act as a Partner and to perform its obligations under this Agreement and that such obligations do not and shall not conflict with or constitute a default under its constating documents or any agreement by which it is bound; |
| (c) | shall act with the utmost fairness and good faith towards the other Partners in the business of the Partnership; |
| (d) | it is and shall continue to be a resident of Canada for the purposes of the Income Tax Act; |
| (e) | it is not and shall not become a “non-Canadian” within the meaning of the Investment Canada Act (Canada); and |
| (f) | it shall not assign its Units to any Person that is unable to make the representations and warranties provided in this Section 9.2 |
| 9.3 | Bankruptcy of Partner |
The Partnership shall not be dissolved by or upon the insolvency, bankruptcy, receivership, dissolution, liquidation or winding up of any Partner, and the legal representative of the Partner shall be entitled to and will assume all the rights and liabilities of the Partner in respect of the Partnership.
| 9.4 | Default |
| (a) | Subject to Paragraph 9.4 (b), if any Partner (a “Defaulting Partner”) fails to make full payment of any portion of its Capital Contribution or any other payment required hereunder when due and such failure is not cured within 30 days after such payment is due, the other Partner or Partners (a “non-Defaulting Partner”) may undertake any one or more of the following steps: |
| (I) | A non-Defaulting Partner may assist the Defaulting Partner, but shall have no obligation, in finding a buyer for the Defaulting Partner’s Units; |
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| (II) | The Partnership may pursue and enforce all rights and remedies the Partnership may have against such Defaulting Partner with respect thereto, including a lawsuit to collect the overdue amount, with interest calculated thereon at a rate equal to the Prime Rate plus six percentage points per annum (but not in excess of the highest rate per annum permitted by law); |
| (III) | A non-Defaulting Partner may offer to purchase the Defaulting Partner’s Units pro rata among the non-Defaulting Partners in accordance with their Capital Contributions on the terms set forth below. If any Partner does not elect to purchase all of the Units offered to it, such unpurchased Units shall be re-offered pro rata to the Partners who have purchased all of the Units offered to them until either all of such Units are acquired or no Partner wishes to make a further investment. At the closing of such purchase (on a date and at a place designated by the non-Defaulting Partner), each purchasing Partner shall, as payment in full for the Defaulting Partner’s Units being purchased: |
| (A) | deliver a non-interest bearing, non-recourse 10-year promissory note, secured only by the Defaulting Partner’s Units being purchased, payable to the Defaulting Partner in an amount equal to the portion of the Defaulting Partner’s Capital Account (not including any unrealized appreciation, but including all unrealized depreciation, in the Partnership’s assets as determined by the Partnership) being purchased by such Partner; and |
| (B) | assume the portion of the Defaulting Partner’s obligation to make both defaulted and future contributions that are commensurate with the portion of the Defaulting Partner’s Units being purchased by such Partner. The non-Defaulting Partner shall handle the mechanics of making the offers set forth herein and shall in its discretion set time limits for acceptance; |
| (IV) | If all of the Defaulting Partner’s Units are not purchased in the manner set forth in subparagraph (III) above, a non-Defaulting Partner in its sole discretion may offer the remaining Units to a third party or parties on the same terms as originally offered to the Partners pursuant to subparagraph (III) above (in which case such third party or parties shall, as a condition of purchasing such Units, become a party to this Agreement); and |
| (b) | The provisions of Paragraph 9.4(a) applicable to a Defaulting Partner and its Units in the Partnership shall not apply to a Partner which has, within 30 days after receipt by such Partner of the non-Defaulting Partner’s offer to purchase, delivered to the Partnership an opinion of counsel, reasonably acceptable in form and substance to the Partnership, to the effect that, as a result of a change in law occurring after the date of this Agreement, there is a material likelihood that the payment of any additional Capital Contribution by such Partner would be unlawful, in which event this Agreement shall be amended to reflect that the Capital Contribution of such Partner shall be reduced in amount to the extent necessary so that such Partner may comply with such laws as are applicable to it. |
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ARTICLE 10
MEETINGS
| 10.1 | General Meetings |
The Partnership shall hold a general meeting of the Partners from time to time for the purpose of reviewing the business of the Partnership. Meetings shall be held in the Province of British Columbia at the time and place designated in the notice of meeting. The meeting shall consider the business contained in the notice calling the meeting and such other business as Partners are entitled to consider as provided in Section 10.3.
| 10.2 | Special Meeting |
The Partnership shall, upon receipt of a request from Partners, convene a meeting of Partners. In the event that the Partnership shall fail to call such meeting within thirty (30) days after receipt of a written request to call such meeting any Partner may call such meeting. Every meeting shall be held at a reasonable time and place in the Province of British Columbia.
| 10.3 | Notice of Meeting |
Notice of any Partners meeting shall be given to each Partner by letter to the address set out above It shall not be necessary for such notice to set out the text of any resolution to be proposed or any of the provisions of this Article.
| 10.4 | Quorum |
A quorum at any meeting of the Partners shall consist of all the Partners present in person or by proxy.
| 10.5 | Votes |
Unanimous approval from each Partner is required for any Resolution and any action taken by the Partnership, except as provided for in Section 8.1. Only Partners of record or a Person appointed by proxy shall be entitled to vote.
| 10.6 | Proxies |
At any meeting of Partners, any Partner entitled to vote may vote by proxy in the following form, provided the proxy shall have been received by the Partnership at or prior to the meeting:
Instrument of Proxy
hereby appoints of in the Province of , as its proxyholder, with full power of substitution, to vote for it and on its behalf at the meeting of Partners to be held on the day of , , and every adjournment thereof and every poll that may take place in consequence thereof.
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DATED this day of , .
Any individual may be appointed a proxyholder and every instrument of proxy shall be considered valid unless challenged by a Partner or a holder of another proxy prior to or at the time of its exercise.
The Chair shall determine the validity of any challenged instrument of proxy.
| 10.7 | Validity of Proxies |
A vote cast in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous dissolution, winding-up, liquidation, bankruptcy or receivership of the Partner or revocation of the proxy or transfer of the Partner’s Units in respect of which the proxy was given, provided that no intimation in writing of such dissolution, winding-up, liquidation, bankruptcy or receivership, revocation or transfer shall have been received at the place of meeting prior to the time fixed for holding of the meeting.
| 10.8 | Solicitation of Proxies |
No Person that seeks to solicit proxies will be required to deliver or send an information circular or other material other than the notice of meeting to Partners whose proxy is being solicited. For the purposes of this Paragraph “solicit” and “solicitation” includes a request for a proxy whether or not accompanied by or included in a form of proxy and a form of proxy or other communication to a Partner under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy.
| 10.9 | Minutes |
Minutes of the proceedings of every meeting of Partners shall be made and recorded by the Partnership. Minutes, when signed by the Chair of the meeting, shall be prima facie evidence of the matters therein stated. Until the contrary is proved, every meeting in respect of which minutes have been made shall be taken to have been duly held and convened and all proceedings referred to in the minutes shall be deemed to have been duly passed.
| 10.10 | Conduct of Meeting |
The Chair of any meeting shall be a person appointed by all of the Partners. Meetings shall be conducted as required by this Agreement and as determined in the meeting where procedures are not prescribed herein. Representatives of the Auditor, and any advisor of a Partner or the Partnership may, with the approval of the Chair attend any meeting, address the meeting and move any resolution.
| 10.11 | Resolutions Binding |
Any Resolution passed in accordance with this Agreement shall be binding on all Partners and their respective successors and assigns, whether or not such Partner was present or represented by proxy at the meeting at which such resolution was passed.
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ARTICLE 11
ACCOUNTING AND FINANCIAL INFORMATION
| 11.1 | Books of Account |
The Partnership shall keep and maintain full, complete and accurate books of account and records of the Partnership business. The records and books of account will be prepared in accordance with generally accepted accounting principles consistently applied as practised in the Province of British Columbia and, as determined by the Partners, on a cash or accrual basis. The Partnership will, at the principal office of the Partnership maintain the records and books of account for a minimum of six (6) years and will permit reasonable inspection and examination by a Partner or its agent duly appointed in writing and at the expense of the Partner during normal business hours.
| 11.2 | Financial Information |
The Partnership shall make reasonable efforts to deliver to each Partner within 120 days, but in no case not later than 150 days, following each fiscal year end of the Partnership an annual report containing annual financial statements of the Partnership for the fiscal year just ended with comparative financial statements for the immediately preceding fiscal year. The financial statements shall include a balance sheet, a statement of income, and a statement of changes in the Capital Accounts. The annual report shall also contain a report on allocations and distributions to Partners and other information material to the Partnership business.
| 11.3 | Tax Reporting Information |
Within 150 days after the end of each fiscal year of the Partnership the Partnership shall furnish to each Partner all necessary income tax reporting information including information as to the Income or Loss and credits and changes to the Capital Account allocated to such Partner in the fiscal year just ended.
ARTICLE 12
DISSOLUTION AND LIQUIDATION
| 12.1 | Dissolution |
The Partnership shall be dissolved in accordance with Section 2.5, but shall be dissolved earlier upon the happening of any of the following events:
| (a) | by any event which makes it unlawful for the Partnership business to be continued; or |
| (b) | the passage of a Resolution approving the dissolution of the Partnership. |
| 12.2 | Continuity |
Subject only to the provisions of the Partnership Act the Partnership shall not be dissolved or terminated by the resignation, removal, bankruptcy, insolvency, receivership, dissolution, liquidation or winding-up of any Partner, or by the admission of a new Partner having general liability, or by the amendment to any or all of the terms and conditions of the Agreement to facilitate the admission of a new Partner having general liability, or otherwise, or on the filing of a Certificate or amended Certificate.
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| 12.3 | Receiver |
The Partners may by Resolution appoint an appropriate Person or party to serve as the receiver of the Partnership charged with the responsibility of liquidating the Partnership upon its dissolution. The receiver shall proceed diligently to wind up the business of the Partnership and to distribute the net proceeds from the sale of the Property thereof in accordance with Section 12.4. During the course of such liquidation the receiver shall operate the Property of the Partnership and in doing so shall be vested with all the powers and authority of the Partners in relation to the Partnership under the terms of this Agreement (other than with respect to the economic benefits derived therefrom). The receiver shall be paid its reasonable fees and disbursements incurred in carrying out its duties as such. The Partners will continue to share profits and losses during the period of liquidation in the same proportion as before the dissolution. The receiver has the full right and unlimited discretion to determine the time, manner and terms of any sale of the Property of the Partnership pursuant to the liquidation having regard to the activity and condition of the relevant market and general economic conditions.
| 12.4 | Distribution on Liquidation |
The receiver shall settle the Partnership accounts as expeditiously as possible and shall:
| (a) | establish the value of the Property of the Partnership by way of a sale, liquidation or valuation; |
| (b) | pay or compromise the liabilities of the Partnership; |
| (c) | place in escrow a cash reserve fund for contingent liabilities in the amount determined by the receiver to be appropriate for such reserve fund, such fund to be held for such period as the receiver regards as reasonable and then to be distributed pursuant to Paragraph 12.4(d); |
| (d) | pay to the Partners the amount of any credit balance in their respective Capital Accounts pro rata in accordance with such credit balance by way of cash payment or transfer of an interest in and to the Property; and |
| (e) | pay the balance thereof to the Partners according to their respective entitlements by way of cash payment or transfer of an interest in and to the Property as determined in accordance with Article 7. |
| 12.5 | Statement |
Within a reasonable time following the completion of the liquidation of the Partnership, the receiver will supply to each of the Partners a statement audited by the Auditor setting out the assets and liabilities of the Partnership as of the date of complete liquidation and the distribution to each Partner.
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| 12.6 | Cash Distribution |
No Partner has the right to demand or receive property other than cash or to demand the return of its Capital Contribution to the Partnership upon dissolution and termination of the Partnership.
| 12.7 | Termination |
Upon the completion of the liquidation of the Partnership and the distribution of all of the Partnership funds, the Partnership terminates and has the authority to execute and record a certificate as well as the other documents required to effect the dissolution or termination of the Partnership.
ARTICLE 13
AMENDMENT
| 13.1 | Amendments to Partnership Agreement |
Except as otherwise provided by this Agreement and subject to this Article 13, no amendment to this Agreement shall be effective or binding upon the parties hereto unless the same shall have been agreed to by the Partners by Resolution.
| 13.2 | Prohibited Amendments |
Notwithstanding anything contained herein, no amendment shall be adopted pursuant to Article 13 of this Agreement and no other amendment shall be adopted if such amendment will change the Partnership to an association taxable as a corporation or change the liability of or reduce the interest of the Partners.
ARTICLE 14
MISCELLANEOUS
| 14.1 | Notices |
Any notice, demand, request, statement, direction or other evidence required or permitted to be given under this Agreement shall be in writing and shall be given by personal service, telecopy, or by registered mail, with postage fully prepaid, to be addressed to the Partnership at its principal office and to each Partner to the last address of such Partner as it known to the Partnership. Any such notice delivered personally or by telecopy shall be deemed to have been received by and given to the addressee on the first business day following the date of delivery. Any such notice mailed as aforesaid shall be deemed to have been received by and given to the addressee on the third business day following the date of mailing, except in the event of any disruption of postal service, in which event notice shall be delivered personally or given by telecopy.
| 14.2 | Provisions Severable |
Each provision of this Agreement shall be severable. If any provision hereof is illegal or invalid, such illegality or invalidity shall not affect the validity of the remainder of this Agreement.
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| 14.3 | Time |
Time is of the essence of this Agreement.
| 14.4 | Governing Law |
This Agreement shall be construed and governed exclusively by the laws in force in British Columbia and the laws of Canada applicable therein, and the courts of British Columbia (and Supreme Court of Canada, if necessary) shall have exclusive jurisdiction to hear and determine all disputes arising hereunder. The parties irrevocably attorn to the jurisdiction of said courts and consent to the commencement of proceedings in such courts.
| 14.5 | Further Assurances |
Each of the Partners for its successors and assigns, hereby covenants and agrees that it shall from time to time and at such times as may be required, execute such further agreements, supplemental agreements, assurances of title and other documents and instruments as may be reasonably required and necessary to carry out the Partnership business and to give effect to the provisions of this Agreement.
| 14.6 | Rights and Remedies |
The rights and remedies set out in this Agreement are cumulative and the use of any one right or remedy by a party does not prejudice or waive the right to use another remedy. These rights and remedies are given in addition to any other rights the Partners may have by law, statute, ordinance or otherwise.
| 14.7 | Successors and Assigns |
This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective permitted successors and assigns.
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ARTICLE 15
EXECUTION
| 15.1 | Execution |
IN WITNESS WHEREOF this Agreement is executed October 28, 2004
| ANGIOTECH PHARMACEUTICALS, INC. | ||
| Per: | /s/ William L. Hunter | |
| Authorized Signatory | ||
| William L. Hunter MD President & CEO | ||
| Name and Title | ||
| 3091796 NOVA SCOTIA COMPANY | ||
| Per: | /s/ David M. Hall | |
| Authorized Signatory | ||
| David M. Hall President | ||
| Name and Title | ||
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SCHEDULE “A”
LIST OF CAPITAL CONTRIBUTIONS
| Angiotech | NSCo | ||||||
| Cash, Short Term and Long Term Investments |
$ | 305,645,700 | $ | 10,000 | |||
| 1,000,000 Common Shares of Angiotech International Holdings, Inc. |
$ | 76,144,300 | — | ||||
| Oracle License |
$ | 1,200,000 | |||||
| TOTAL |
$ | 382,990,000 | $ | 10,000 | |||
| Less Consideration |
($382,000,000 | ) | — | ||||
| Capital Contribution |
$ | 990,000 | $ | 10,000 | |||
All amounts are in Canadian Dollars.
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SCHEDULE “B”
UNIT CERTIFICATE
| No. | PARTNERSHIP UNITS |
PARTNERSHIP UNIT CERTIFICATE
ANGIOTECH INVESTMENT PARTNERSHIP
(a general partnership formed under the laws of the Province of British Columbia)
Subject to the provisions of the Partnership Agreement dated for reference October 28, 2004 as amended from time to time, the interest in the Angiotech Investment Partnership of the Partners is divided into an unlimited number of Partnership Units with a subscription price of $1 per Partnership Unit.
THIS IS TO CERTIFY that _______________________________
of __________________________________________________
is the owner of ________________________________________
Partnership Units in ANGIOTECH INVESTMENT PARTNERSHIP.
This Certificate and the Partnership Units represented hereby are held subject to the conditions and restrictions contained in the Angiotech Investment Partnership Agreement dated for reference October 28, 2004 (and as amended from time to time) and made and entered into between Angiotech Pharmaceuticals, Inc. and 3091796 Nova Scotia Company and those parties referred to as Partners therein.
DATED this day of , .
| ANGIOTECH INVESTMENT PARTNERSHIP | ||
| Per: | ||
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| This ‘F-10’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed as of: | 10/25/06 | 6-K, F-X | ||
| Filed on: | 10/24/06 | 6-K | ||
| 10/28/04 | 6-K | |||
| 10/26/04 | ||||
| List all Filings | ||||