UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
Rule 13e-3 Transaction Statement
Under Section 13(e) of the Securities Exchange Act of 1934
NUCRYST
PHARMACEUTICALS CORP.
(Name of Issuer)
NUCRYST Pharmaceuticals Corp.
The Westaim
Corporation
1499642 Alberta Ltd.
(Name of Persons Filing Statement)
Common Shares,
par value $0.01 per share
(Title of Class of Securities)
67035Q100
(CUSIP Number of Class of Securities)
|
NUCRYST Pharmaceuticals Corp.
101 College Road East
Princeton, New Jersey
08540
|
Tel. No.: (609) 228-8210
|
(Name, Address, and Telephone Numbers of Person Authorized to Receive Notices and
Communications on Behalf of Persons Filing Statement)
copies to:
|
|
|
|
|
Carol L. Amelio
Vice President, General Counsel
and Corporate Secretary
NUCRYST Pharmaceuticals Corp.
10102-114 Street
Fort Saskatchewan, Alberta
Canada T8L 3W4
(780) 992-5626
|
|
Jeffrey Sarfin
Chief Financial Officer
The Westaim Corporation
212 King Street West, Suite 201
Toronto, ON M5H 1K5
(416) 203-2253
|
|
H. John Michel, Jr.
Matthew M. McDonald
Drinker Biddle & Reath LLP
One Logan Square, 18th & Cherry Streets
Philadelphia, PA 19103
(215) 988-1192
|
This statement is filed in
connection with (check the appropriate box):
|
|
|
|
|
¨
|
|
a.
|
|
The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of
1934.
|
¨
|
|
b.
|
|
The filing of a registration statement under the Securities Act of 1933.
|
¨
|
|
c.
|
|
A tender offer.
|
x
|
|
d.
|
|
None of the above.
|
Check the following box if the soliciting materials or information statement referred to in checking
box (a) are preliminary copies:
¨
Check the following box if the filing is a
final amendment reporting the results of the transaction:
¨
CALCULATION OF
REGISTRATION FEE
|
|
|
|
Transaction Valuation
|
|
Amount of Filing Fee
|
$ 32,162,062
|
|
$1,794.64
|
|
|
Calculated solely for purposes of determining the filing fee in accordance with Rule 0-11(b). The
transaction valuation includes the payment of $1.77 cash per share for 4,633,665 shares of common stock of the subject company and assumes the payment of $1.75 cash per share, the average of the high and low prices quoted on NASDAQ on November 25,
2009, for 13,691,700 shares of common stock of the subject company.
¨
|
|
Check the box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
|
Amount Previously Paid: $
Form or Registration No.:
Filing Party:
Date Filed:
INTRODUCTION
This Rule 13e-3 transaction statement on Schedule 13E-3 (this Transaction Statement) is being filed with the Securities and
Exchange Commission (the SEC) pursuant to Section 13(e) of the Securities Exchange Act of 1934, as amended (the Exchange Act), jointly by NUCRYST Pharmaceuticals Corp. (NUCRYST) and The Westaim Corporation
(Westaim), which are referred to collectively as the filing persons.
This Transaction Statement
relates to the Amalgamation Agreement (the Amalgamation Agreement), dated as of November 10, 2009, between NUCRYST and 1499642 Alberta Ltd. (1499642). Pursuant to the Amalgamation Agreement, subject to shareholder
approval and satisfaction or waiver of the other conditions specified in the Amalgamation Agreement, on the closing date of the transaction NUCRYST will be amalgamated with 1499642 upon the terms and subject to the conditions set forth in the
Amalgamation Agreement, to form Amalco, the corporation continuing from the Amalgamation of NUCRYST and 1499642 (Amalco) and Amalco will continue as the surviving company and will succeed to and assume all the rights and obligations of
NUCRYST (the Amalgamation).
Further, pursuant to the Amalgamation Agreement, each issued and outstanding NUCRYST
share, other than those held by shareholders that exercise their right to dissent in accordance with Section 191 of the
Business Corporations Act
(Alberta) (the Dissenting Shareholders) or held by Westaim, will be converted
into one series 1 preferred share in the capital of Amalco which will be redeemed for cash consideration of U.S.$1.77 upon completion of the Amalgamation. Each issued and outstanding NUCRYST share held by each Dissenting Shareholder will be
cancelled and each Dissenting Shareholder will become entitled to be paid the fair value of such common shares in accordance with the
Business Corporations Act
(Alberta). Each issued and outstanding NUCRYST share held by Westaim will be
converted into one common share of Amalco.
As a foreign private issuer, NUCRYST is exempt from Sections 14(a) and 14(c) of
the Securities Exchange Act of 1934, as amended. Attached as Exhibit (a)(1) to this Transaction Statement is a Notice of Special Meeting and Information Circular (the Information Circular) to be disseminated to shareholders of NUCRYST. A
copy of the Amalgamation Agreement is attached as Appendix B to the Information Circular and is attached as Exhibit (d)(4) to this Transaction Statement.
Concurrently with the filing of this Transaction Statement, the Information Circular relating to the special meeting of the shareholders of NUCRYST, together with a supplement thereto, is being filed with
the SEC. At the NUCRYST special meeting, shareholders of NUCRYST will be asked to consider and vote upon (i) a proposal to approve a sale of substantially all of the assets of NUCRYST to affiliates of Smith & Nephew plc and (ii) a
proposal to approve and adopt the Amalgamation Agreement and approve the Amalgamation.
The cross references below are being
supplied pursuant to General Instruction G to Schedule 13E-3 and show the location in the Information Circular of the information required to be included in response to the items of Schedule 13E-3. The information contained in the Information
Circular, including all supplements and appendices thereto, is incorporated in its entirety herein by this reference, and the responses to each Item in this Transaction Statement are qualified in their entirety by the information contained in the
Information Circular and the appendices thereto. All information contained in this Transaction Statement concerning any of the filing persons has been provided by such filing person and none of the filing persons takes responsibility for the
accuracy of any information not supplied by such filing person.
- 1 -
Item 1.
Summary Term Sheet.
Item 1001 of Regulation M-A:
The information set forth in the Information Circular under the caption Summary Term Sheet is incorporated herein by reference.
Item 2.
Subject Company Information
.
Item 1002 of Regulation M-A:
The
name and address of the subject company is NUCRYST Pharmaceuticals Corp. (NUCRYST). Its principal executive office is located at 101 College Road East, Princeton, New Jersey 08540. The Companys telephone number is (609) 228-8210.
The Company maintains a manufacturing facility at 10102-114 Street, Fort Saskatchewan, Alberta T8L 3W4, Canada.
(b)
|
|
Securities
. The subject class of equity securities to which this Transaction Statement relates is the Companys common shares, no par value, of which
18,325,365 shares were outstanding as of November 25, 2009.
|
(c)-(d)
|
|
Trading Market and Price; Dividends
. The information set forth in the Information Circular under the captions Price Range and Trading Volume of NUCRYST
Shares and Dividend Record is incorporated here by reference.
|
(e)
|
|
Prior Public Offerings
. NUCRYST has not made an underwritten public offering during the three years preceding the date of this Transaction Statement.
|
(f)
|
|
Prior Stock Purchases
. The information set forth in the Information Circular under the caption Previous Purchases and Sales is incorporated herein by
reference.
|
Item 3.
Identity and Background of Filing Persons.
Item 1003 of Regulation M-A:
(a)-(c)
|
|
Name and address; Business and background of entities; Business and background of natural persons
. Westaim is an affiliate of NUCRYST because Westaim owns 75% of
NUCRYSTs outstanding common shares. 1499642 is a wholly owned subsidiary of Westaim, formed for purposes of the Amalgamation. NUCRYST is the subject company.
|
NUCRYST, a corporation formed under the laws of Alberta, Canada with headquarters in Princeton, New Jersey, develops, manufactures and
commercializes medical products that fight infection and inflammation using SILCRYST(TM), its patented atomically disordered nanocrystalline silver technology. NUCRYST licensed world-wide rights for SILCRYST(TM) wound care coating products to
Smith & Nephew plc, which markets these products in over 30 countries under their Acticoat(TM) trademark. NUCRYST has developed its proprietary nanocrystalline silver in a powder form, referred to as NPI 32101, for use in medical devices
and as an active pharmaceutical ingredient.
Neil Carragher, Barry Heck, David C. McDowell, and Carol L. Amelio are citizens of
Canada. Richard Zahn and David B. Holtz are citizens of the United States.
Ian W. Delaney, J. Cameron MacDonald, Daniel P.
Owen, Peter H. Puccetti, Bruce V. Walter, John Gildner and Jeffrey Sarfin are citizens of Canada.
The information set forth in
the Information Circular under the following captions is incorporated herein by reference:
Information Concerning
Westaim
Identity and Background Information Directors and Officers of NUCRYST
Identity and Background Information Directors and Officers of Westaim
Ownership of Securities of the Corporation
Item 4.
Terms of the Transaction.
Item 1004 of Regulation
M-A:
(a)-(b)
|
|
Material Terms
. The information set forth in the Information Circular under the following captions is incorporated herein by reference:
|
Summary Term Sheet
Special Factors Background to the Amalgamation
Special
Factors Benefits and Disadvantages of the Amalgamation
Special Factors Tax Considerations
Certain United States Federal Income Tax Considerations
Fairness Opinion and Valuation
Information Regarding the Amalgamation Terms of the Amalgamation
Information Regarding the Amalgamation Treatment of Outstanding Options and Restricted Stock Units
Information Regarding the Amalgamation Approval Requirement for Amalgamation Resolution
Information Regarding the Amalgamation Redemption Procedure
Effect of the Amalgamation on
Markets and Listings
(c)
|
|
Different Terms
. The information set forth in the Information Circular under the following captions is incorporated herein by reference:
|
Information Regarding the Amalgamation Terms of the Amalgamation
Special Factors Benefits and Disadvantages of the Amalgamation
2 -
(d)
|
|
Appraisal Rights
. The information set forth in the Information Circular under the following captions is incorporated herein by reference:
|
Right to Dissent
Appendix D: Summary of Procedure to Exercise Dissent Rights
(e)
|
|
Provisions For Unaffiliated Security Holders
. The information set forth in the Information Circular under the caption Right to Dissent is
incorporated herein by reference.
|
Item 5.
Past Contacts, Transactions, Negotiations and
Agreements.
Item 1005 of Regulation M-A:
(a)
|
|
Transactions
. The information set forth in the Information Circular under the following captions is incorporated herein by reference:
|
Special Factors Background to the Amalgamation
Fairness of the Proposed Transaction Prior Offers
Interest of Persons in the Matters to be Acted Upon at the Meeting
(b)-(c)
|
|
Significant Corporate Events; Negotiations or Contacts
. The information set forth in the Information Circular under the following captions is incorporated herein
by reference:
|
Special Factors Background to the Asset Sale Transaction
Special Factors Background to the Amalgamation
Special Factors Prior Offers
Interest of Persons in the Matters to be Acted Upon at the Meeting
Prior contacts regarding election of NUCRYST directors
. In January 2009, Westaim identified Mr. Drew Fitch to NUCRYST for consideration as a candidate for appointment to the NUCRYST board of directors. At the time,
Mr. Fitch was the President, Chief Executive Officer, and a director of Westaim. On January 15, 2009, the NUCRYST board of directors increased the size of the NUCRYST board from six directors to seven and appointed Mr. Fitch to the
newly created seat, effective January 16, 2009. In April 2009, following a decision by the NUCRYST board of directors to reduce the size of the NUCRYST board of directors from seven members to three members effective immediately after
NUCRYSTs annual shareholders meeting in May 2009, Mr. Fitch volunteered not to stand for re-election to the NUCRYST Board in May 2009.
(e)
|
|
Agreements Involving the Subject Companys Securities
.
|
The Keep Well Agreement, which is filed as Exhibit (d)(2) hereto, requires Westaim to refrain from taking action including, without limitation, any action to cause NUCRYST to declare dividends, return
capital, transfer property or assume liabilities after closing of NUCRYSTs sale of substantially all of its assets to affiliates of Smith & Nephew plc (the Asset Sale Transaction), if such action would result in NUCRYST
breaching its covenant to maintain the Net Worth set forth in section 8.13 of the Asset Purchase Agreement.
In connection with
NUCRYSTs initial public offering in 2005, Westaim and NUCRYST entered into a Registration Rights Agreement requiring NUCRYST to register the resale of its common shares held by Westaim. The information set forth in NUCRYSTs amended Form
F-1 filed on December 21, 2005 under the caption Description of Share Capital Registration Rights and the form of Registration Rights Agreement filed as Exhibit 10.3 to NUCRYSTs amended Form F-1 filed on
December 19, 2005 are incorporated herein by reference.
The information set forth in the Information Circular under the
caption Information Regarding the Asset Sale Transaction Approval Requirement for Asset Sale Resolution, the Support Agreement filed as Exhibit (d)(1) hereto, the Keep Well Agreement filed as Exhibit (d)(2) hereto, and the Asset
Purchase Agreement filed as Exhibit (d)(3) hereto, are incorporated herein by reference.
Item 6.
Purposes of the
Transaction and Plans or Proposals.
Item 1006 of Regulation M-A:
(b)-(c)
|
|
Use of Securities Acquired; Plans
.
|
NUCRYST intends to terminate registration of its common shares and to suspend its reporting obligations, under Sections 12 and 15(d), respectively, of the Securities Exchange Act of 1934 in connection
with the Amalgamation.
3 -
The information set forth in the Information Circular under the following captions is
incorporated herein by reference:
Summary Term Sheet
Special Factors Background to the Asset Sale Transaction
Special Factors Background to the Amalgamation
Information Regarding the Asset Sale Transaction Summary of the Purchase Agreement
Information Regarding the Amalgamation Terms of the Amalgamation
Effect Of The Amalgamation On Markets And Listings
Item 7.
Purposes, Alternatives, Reasons and Effects.
Item 1013 of Regulation M-A:
(a)-(c)
|
|
Purposes; Alternatives; Reasons
. The information set forth in the Information Circular under the following captions is incorporated herein by reference:
|
Special Factors Background to the Amalgamation
Summary Term Sheet Summary of the Amalgamation
Special Factors Benefits and Disadvantages of the Amalgamation
Summary Term Sheet Prior Offers
Special Factors Tax Considerations
Effect Of The
Amalgamation On Markets And Listings
(d)
|
|
Effects
. The information set forth in the Information Circular under the following captions is incorporated herein by reference:
|
Information Regarding the Amalgamation Terms of the Amalgamation
Special Factors Benefits and Disadvantages of the Amalgamation
Effect Of The Amalgamation On Markets And Listings
Information Regarding the Amalgamation Treatment of Outstanding Options and Restricted Stock Units
Right to Dissent
Interest of Persons in the Matters to be Acted
Upon at the Meeting
Certain United States Federal Income Tax Considerations
The information set forth in the Supplement to Information Circular filed as Exhibit (a)(5) of this Schedule 13E-3 under the caption
Interest of Persons in the Matters to be Acted Upon at the Meeting is incorporated herein by reference.
Item 8.
Fairness of the Transaction.
Item 1014 of Regulation M-A:
(a)-(b)
|
|
Fairness; Factors Considered in Determining Fairness
.
|
The Board of Directors retained KPMG to conduct a Valuation of NUCRYST in order to ensure that the cash consideration being paid to minority shareholders pursuant to the Amalgamation Agreement was fair.
The Board of Directors chose KPMG to conduct the Valuation because of KPMGs credentials and qualifications and because KPMG was independent from NUCRYST for purposes of the Valuation. KPMG delivered the Fairness Opinion and Valuation, which is
set forth as Appendix C to the Information Circular and is incorporated herein by reference. Additionally, the information set forth in the Information Circular under the following captions is incorporated herein by reference:
Special Factors Fairness of the Proposed Transactions Factors Considered in Determining Fairness
Special Factors Benefits and Disadvantages of the Amalgamation
Special Factors Unaffiliated Representative
Fairness Opinion and Valuation
4 -
(c)
|
|
Approval of Security Holders
. The information set forth in the Information Circular under the following captions is incorporated herein by reference:
|
Special Factors Approval of Shareholders Amalgamation Resolution
Information Regarding the Amalgamation Approval Requirement for Amalgamation Resolution
(d)-(e)
|
|
Unaffiliated Representative; Approval of Directors
. The information set forth in the Information Circular under the following captions is incorporated herein by
reference:
|
Special Factors Unaffiliated Representative
Fairness Opinion and Valuation
Information Regarding the Amalgamation Recommendation by the Board of Directors
(f)
|
|
Other Offers
. The information set forth in the Information Circular under the following captions is incorporated herein by reference:
|
Special Factors Background to the Asset Sale Transaction
Special Factors Background to the Amalgamation
Special Factors Prior Offers
Item 9.
Reports, Opinions, Appraisals and Certain Negotiations.
Item 1015 of Regulation M-A:
(a)-(c)
|
|
Report, Opinion or Appraisal; Preparer and Summary of the Report, Opinion or Appraisal; Availability of Documents
. The information set forth in the Information
Circular under the following captions is incorporated herein by reference:
|
Fairness Opinion and
Valuation
Appendix C: Fairness Opinion and Valuation
Item 10.
Source and Amounts of Funds or Other Consideration.
Item 1007 of Regulation M-A:
(a)-(d)
|
|
Source of Funds; Conditions; Expenses; Borrowed Funds
. The information set forth in the Information Circular under the following caption is incorporated herein
by reference:
|
Information Regarding the Amalgamation Terms of the Amalgamation
Expenses Related to Amalgamation Transaction
Item 11.
Interest in Securities of the Subject Company.
Item 1008 of Regulation M-A:
(a)
|
|
Securities Ownership
.
|
The information reflected in the Information Circular under the caption Ownership of Securities of the Corporation is required by Canadian law to be presented without including shares the person has a right to acquire within 60
days pursuant to Rule 13d-3. Aggregated information is provided below to include the shares listed in the Information Circular under the caption Interest of Persons in the Matters to be Acted Upon at the Meeting and Ownership of
Securities of the Corporation together with all shares each person has the right to acquire within 60 days pursuant to Rule 13d-3.
5 -
|
|
|
|
|
|
|
Individual or Entity
|
|
NUCRYST
Shares
|
|
|
% Ownership
of Outstanding
Securities
|
|
Westaim
212 King Street West, Suite 201
Toronto, ON M5H 1K5
Tel: (416) 203-2253
|
|
13,691,700
|
|
|
74.7
|
%
|
|
|
|
1499642 Alberta Ltd.
212 King Street West, Suite 201
Toronto, ON M5H 1K5
Tel: (416) 203-2253
|
|
Nil
|
|
|
N/A
|
|
|
|
|
iFire Technology Ltd.
Fifth Avenue Place, 12
th
Floor
425 1 Street SW
Calgary, Alberta T2P 3L8
Tel: (416)
203-2253
|
|
|
|
|
|
|
|
|
|
Neil Carragher, Chairman of the Board and Director of the Corporation
170 Heath Street West
Toronto, ON M4V 3B8
Tel: (416) 482-9677
|
|
38,500
|
(1)
|
|
<1
|
%
|
|
|
|
Richard Zahn, Director of the Corporation
#601, 10040 East Happy Valley Road
Scottsdale, AZ
85255
Tel: (480) 588-7772
|
|
45,000
|
(1)
|
|
<1
|
%
|
|
|
|
Barry Heck, Director of the Corporation
6906 Leaside Drive
Calgary, AB T3E 6H5
Tel: (403) 651-6989
|
|
32,900
|
(1)
|
|
<1
|
%
|
|
|
|
David B. Holtz, Interim President, CEO and CFO of the Corporation
101 College Road East
Princeton, NJ 08540
Tel: (609) 228-8210
|
|
354,300
|
(1)
|
|
1.9
|
%
|
|
|
|
David C. McDowell, VP Operations of the Corporation
10102 114 Street
Fort Saskatchewan, AB T8L
3W4
Tel: (780) 992-5500
|
|
248,911
|
(1)
|
|
1.4
|
%
|
|
|
|
Carol L. Amelio, VP, General Counsel & Corporate Secretary of the Corporation
10102 114 Street
Fort Saskatchewan, AB T8L 3W4
Tel: (780) 992-5500
|
|
175,000
|
(1)
|
|
<1
|
%
|
|
|
|
Ian W. Delaney, Chairman of the Board and Director of Westaim
1133 Yonge Street
Toronto, Ontario M4T 2Y7
Tel: (416) 924-4551
|
|
Nil
|
|
|
N/A
|
|
6 -
|
|
|
|
|
Individual or Entity
|
|
NUCRYST
Shares
|
|
% Ownership
of Outstanding
Securities
|
J. Cameron MacDonald, President, CEO and Director of Westaim and President, CEO and Director of iFire
212 King Street West, Suite 201
Toronto, ON M5H 1K5
Tel:
(416) 203-2253
|
|
Nil
|
|
N/A
|
|
|
|
Daniel P. Owen, Director of Westaim
Molin Holdings Limited
71 Roxborough Street West
Toronto, Ontario, M5R 1T9
Tel:
(416) 961-4300
|
|
Nil
|
|
N/A
|
|
|
|
Peter H. Puccetti, Director of Westaim
212 King Street West, Suite 201
Toronto, ON M5H 1K5
Tel: (416) 203-2253
|
|
Nil
|
|
N/A
|
|
|
|
Bruce V. Walter, Director of Westaim
9 Ridgefield Road
Toronto, Ontario, M4N
3H7
Tel: (416) 935-2483
|
|
Nil
|
|
N/A
|
|
|
|
John Gildner, Director of Westaim
131 Veronica Drive
Mississauga, Ontario, L5G 2B1
Tel: (905) 278-4568
|
|
Nil
|
|
N/A
|
|
|
|
Jeffrey Sarfin, CFO of Westaim and CFO and Director of iFire
212 King Street West, Suite 201
Toronto, ON M5H 1K5
Tel:
(416) 203-2253
|
|
Nil
|
|
N/A
|
(1)
|
|
Includes: (a) Restricted Stock Units (RSUs) that will vest and Options to purchase Common Shares that are exercisable within 60 days of
November 30, 2009; and (b) Options and RSUs the vesting of which will be accelerated as part of the Amalgamation as follows: Mr. Carragher 24,000 Options and 1,500 RSUs; Mr. Zahn 26,000 Options and 4,500 RSUs;
Mr. Heck 12,000 Options and 4,500 RSUs; Mr. Holtz 340,000 Options; Mr. McDowell 243,910 Options and 1,667 RSUs; Ms. Amelio 170,000 Options and 1,667 RSUs.
|
7 -
(b)
|
|
Securities Transactions
.
|
The Corporation, Westaim, iFire Group Ltd., a majority-owned subsidiary of Westaim, 1499642, and the directors and officers of NUCRYST, Westaim and 1499642 made no transactions in NUCRYST common shares during the past 60 days.
Item 12.
The Solicitation or Recommendation.
Item 1012 of Regulation M-A:
(d)
|
|
Intent to Tender or Vote in a Going-Private Transaction
. The information set forth in the Information Circular under the caption Ownership of Securities of
the Corporation is incorporated herein by reference.
|
The Board of Directors of NUCRYST and Westaim intend
to vote shares owned by them in favor of the Amalgamation Resolution for the reasons set forth in the section of the Information Circular captioned Special Factors Factors Considered in Determining Fairness, which is incorporated
herein by reference. David B. Holtz, Carol L. Amelio and David C. McDowell intend to vote shares owned by them in favor of the Amalgamation because they believe that the Amalgamation is in the best interests of NUCRYST and its shareholders.
(e)
|
|
Recommendation of Others
. While NUCRYSTs executive officers had a limited role in setting the terms of the Amalgamation and negotiating with Westaim, David
B. Holtz, Carol L. Amelio and David C. McDowell have not made a public recommendation either in support of or opposed to the Amalgamation. The information set forth in the Information Circular under the following captions is incorporated herein by
reference:
|
Special Factors Factors Considered in Determining Fairness
Information Regarding the Amalgamation Recommendation of the Board of Directors
Item 13.
Financial Statements.
Item 1010 of Regulation M-A:
(a)
|
|
Financial Information
. The information set forth in the Information Circular under the following captions is incorporated herein by reference: Financial
Statements and Additional Information. The information set forth in the Supplement to Information Circular filed as Exhibit (a)(5) of this Schedule 13E-3 under the caption Financial Statements is incorporated herein by
reference.
|
The information contained in the Consolidated Financial Statements included in NUCRYSTs Annual
Report on Form 10-K for the fiscal year ended December 31, 2007, filed on March 4, 2008, and NUCRYSTs Annual Report on Form 10-K for the fiscal year ended December 31, 2008, filed on February 19, 2009. NUCRYSTs
unaudited financial statements for 2009 year to date are incorporated herein by reference to the Corporations Quarterly Report on Form 10-Q for the period ending September 30, 2009, filed on November 16, 2009.
(b)
|
|
Pro forma Information
. Not applicable.
|
8 -
Item 14.
Persons/Assets, Retained, Employed, Compensated or Used.
Item 1009 of Regulation M-A:
(a)
|
|
Solicitations or Recommendations;
. KPMG was retained by the NUCRYST Board of Directors to provide a Valuation with respect to the Amalgamation, as described in
the sections captioned as follows, which are incorporated herein by reference:
|
Fairness Opinion and
Valuation
Appendix C: Fairness Opinion and Valuation
Expenses Related to Amalgamation Transaction
Other than KPMG, no person has been employed, retained or compensated to make solicitations or recommendations in connection with the transaction.
(b)
|
|
Employees and Corporate Assets
. The information set forth in the Information Circular under the caption Information Regarding the Amalgamation Terms
of the Amalgamation is incorporated herein by reference.
|
Item 15.
Additional Information.
Item 1011(b) of Regulation M-A:
(b)
|
|
Other Material Information
. The entirety of the Information Circular, including all annexes, appendices and supplements thereto, is incorporated herein by
reference.
|
Item 16.
Exhibits.
|
|
|
(a)(1)
|
|
Information Circular for the special meeting of NUCRYST shareholders
|
|
|
(a)(2)
|
|
Letter of Transmittal
|
|
|
(a)(3)
|
|
Form of NUCRYST Proxy Card
|
|
|
(a)(4)
|
|
Special Resolutions (included as Appendix A to the Information Circular included in Exhibit (a)(1) of this Schedule 13E-3)
|
|
|
(a)(5)
|
|
Supplement to Information Circular
|
|
|
(c)(1)
|
|
Fairness Opinion and Valuation (included as Appendix C to the Information Circular included in Exhibit (a)(1) of this Schedule 13E-3)
|
|
|
(d)(1)
|
|
Support Agreement dated November 10, 2009 between Westaim, Smith & Nephew Inc. and Smith & Nephew Overseas (Limited)
|
|
|
(d)(2)
|
|
Keep Well Agreement dated November 10, 2009 between Westaim, Smith & Nephew Inc., and T.J. Smith & Nephew Limited
|
|
|
(d)(3)
|
|
Asset Purchase Agreement dated November 10, 2009 between and among NUCRYST, NUCRYST Pharmaceuticals Inc., Smith & Nephew Inc. and Smith & Nephew (Overseas)
Limited.
|
|
|
(d)(4)
|
|
Amalgamation Agreement dated as of November 10, 2009, between NUCRYST and 1499642 Alberta Ltd. is (included as Appendix B to the Information Circular included in Exhibit (a)(1)
of this Schedule 13E-3)
|
|
|
(f)(1)
|
|
Dissenters rights of appraisal are described under the caption Right to Dissent and the Summary of Procedures to Exercise Dissent Rights is included as Appendix
D, each in the Information Circular included in Exhibit (a)(1) of this Schedule 13E-3)
|
9 -
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete
and correct.
Dated: November 30, 2009
|
|
|
NUCRYST Pharmaceuticals Corp.
|
|
|
By:
|
|
/s/ David B. Holtz
|
Name:
|
|
David B. Holtz
|
Title:
|
|
Interim Chief Executive Officer and
Chief Financial Officer
|
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
Dated: November 30, 2009
|
|
|
The Westaim Corporation
|
|
|
By:
|
|
/s/ Jeffrey Sarfin
|
Name:
|
|
Jeffrey Sarfin
|
Title:
|
|
CFO
|
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
Dated: November 30, 2009
|
|
|
1499642 Alberta Ltd.
|
|
|
By:
|
|
/s/ Cameron MacDonald
|
Name:
|
|
Cameron MacDonald
|
Title:
|
|
Secretary-Treasurer
|
Nucryst (NASDAQ:NCST)
Historical Stock Chart
From Aug 2024 to Sep 2024
Nucryst (NASDAQ:NCST)
Historical Stock Chart
From Sep 2023 to Sep 2024