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As filed with the Securities and Exchange Commission on
October 9, 2007
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File No. 333-
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SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION
STATEMENT
UNDER THE SECURITIES ACT OF 1933
MEDICURE INC.
(Exact name of
registrant as specified in its charter)
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Canada
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Not Applicable
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(State or other jurisdiction of Incorporation or
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(I.R.S. Employer Identification No.)
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organization)
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4-1200 Waverley Street
Winnipeg, MB Canada R3T
0P4
(Address of Principal Executive Offices, including zip code)
STOCK OPTION PLAN AMENDED AND RESTATED OCTOBER 2,
2007
(Full title of the plan)
Dorsey & Whitney LLP
U.S. Bank Centre
1420 Fifth Avenue
Suite 3400
Seattle, WA
98101-4010
(206) 903-2423
(Telephone number, including
area code, of agent for service)
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Copies to:
Brahmy
Poologasingham
Dorsey & Whitney LLP
U.S. Bank
Centre
1420 Fifth Avenue, Suite 3400
Seattle, WA
98101-4010
(206) 903-8875
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CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
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Amount to
be Registered
(1)
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Proposed Maximum Offering Price
Per Share
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Proposed Maximum Aggregate
Offering Price
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Amount of
Registration Fee
(2)
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Common Shares issuable
pursuant to the options
outstanding under the Medicure
Stock Option Plan
Additional
Medicure Common
Shares reserved for issuance
pursuant to the
Medicure Stock
Option Plan
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3,985,528
9,045,227
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$1.29
(2)
$1.13
(3)
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$5,141,331.12
(2)
10,221,106.51
(3)
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$158.00
$314.00
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(1)
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Common Shares, without par value, offered by Medicure
Inc. (the “Registrant”) pursuant to the plan described therein.
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(2)
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Estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(h) under the Securities Act
of 1933, as amended. Canadian figures have been converted at the
applicable noon buying rate as provided by the Federal Reserve Bank of New
York on the date granted, unless that date was a weekend or holiday, in
which case by the date immediately preceding that weekend or holiday. The
maximum aggregate offering price is based upon the aggregate exercise
price of outstanding options.
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(3)
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The proposed
maximum offering price per share and the registration fee were calculated
in accordance with rule 457(c) and (h) based on the average high and low
prices for the Registrant’s common shares on October 2, 2007, as
quoted on the American Stock Exchange, which was $ 1.13 per share.
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II-2
INTRODUCTORY STATEMENT
This registration statement on
Form S-8 registers 13,030,755 common shares (“Common Shares”) of Medicure Inc.
(the “Registrant”) reserved for issuance upon the exercise of stock options
granted under the Stock Option Plan Amended and Restated October 2, 2007 of the
Registrant (the “Stock Option Plan”) .
If a stock option issued under
the Stock Option Plan expires or terminates for any reason without having been
exercised in full, the unpurchased Common Shares shall be again available for
the purposes of the Plan.
Pursuant to Rule 416(a) of the
United States Securities Act of 1933, as amended (the “Securities Act”) this
registration statement also covers any additional securities that may be offered
or issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
PART I. INFORMATION REQUIRED IN THE SECTION 10(A)
PROSPECTUS
Item 1. Plan Information.
*
Item 2. Registrant Information and Employee Plan Annual
Information.
*
* This information is not
required to be included in, and is not incorporated by reference in, this
registration statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or
furnished by the Registrant with or to the Securities and Exchange Commission
(the “Commission”) are hereby incorporated by reference in this registration
statement:
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(a)
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The Registrant’s Annual Report on Form 20-F (File No.
001-31995) for the fiscal year ended May 31, 2007 filed with the
Commission on August 27, 2007;
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(b)
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All other reports of the Registrant filed pursuant to
Section 13(a) or 15(d) of the United States Securities Exchange Act of
1934, as amended (the “Exchange Act”), since the end of the fiscal year
covered by the annual report incorporated by reference herein pursuant to
(a) above; and
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(c)
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The description of the Registrant’s securities contained
in the Registrant’s amended Registration Statement on Form 8-A filed under
the Exchange Act on February 12, 2004, and any amendment or report filed
for the purpose of updating such description.
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All documents subsequently filed
by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the filing of a post-effective amendment that indicate
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference into this
registration statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for the purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this registration
statement.
II-3
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Applicable Laws of
Canada
Section 124 of the Canada
Business Corporations Act (the “CBCA”) provides that a corporation may indemnify
a present or former director or officer of the corporation, or another
individual who acts or acted at the corporation’s request as a director or
officer, or an individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount paid to settle an
action or satisfy a judgment, reasonably incurred by the individual in respect
of any civil, criminal, administrative, investigative or other proceeding in
which the individual is involved because of that association with the
corporation or other entity, provided that the individual (a) acted honestly and
in good faith with a view to the best interests of the corporation or, as the
case may be, the other entity; and (b) in the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty, had
reasonable grounds for believing that the individual’s conduct was lawful.
Furthermore, a corporation may advance moneys to a director, officer or other
individual for the costs, charges and expenses of a proceeding referred to
above. The individual shall repay the moneys if the individual does not fulfill
the conditions set out in subsection (a) and (b) above.
Notwithstanding the above, an
individual is entitled to indemnity from the corporation in respect of all
costs, charges and expenses reasonably incurred by the individual in connection
with the defense of any civil, criminal, administrative, investigative or other
proceeding to which the individual is subject because of the individual’s
association with the corporation or other entity as described above, if the
individual seeking indemnity (a) was not judged by the court or other competent
authority to have committed any fault or omitted to do anything that the
individual ought to have done; (b) acted honestly and in good faith with a view
to the best interests of the corporation, or, as the case may be, to the best
interests of the other entity for which the individual acted as director or
officer or in a similar capacity at the corporation’s request; and (c) in the
case of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, had reasonable grounds for believing that the individual’s
conduct was lawful.
Bylaws
Subject to the limitations
contained in the CBCA, but without limiting the right of the Corporation to
indemnify any individual under the CBCA or otherwise to the full extent
permitted by law, the Corporation (a) shall indemnify each director or officer
or former director or officer and each other individual who acts or has acted at
the Corporation’s request as a director or officer, of a body corporate of which
the corporation is or was a shareholder or creditor (and each such individual’s
respective heirs and personal representatives), against all costs, charges and
expenses, including an amount paid to settle an action or satisfy a judgment,
reasonably incurred in respect of any civil, criminal, administrative,
investigative or other proceeding in which the individual is involved because of
that association with the Corporation or other person, provided (i) the
individual acted honestly and in good faith with a view to the best interests of
the Corporation, or, as the case may be, to the best interests of the other
person for which the individual acted as a director or officer or in a similar
capacity at the Corporation’s request; and (ii) in the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty, the
individual had reasonable grounds for believing that the individual’s conduct
was lawful; and (b) may advance monies to a director, officer or other
individual for the costs, charges and expenses of a proceeding referred to in
Section (a) in accordance with the CBCA.
II-4
Notwithstanding the foregoing,
any such indemnity or advance of monies in respect of an action referred to in
Section (a) by or on behalf of at the request of the Corporation to procure
judgment in its favour shall be subject to approval of a court.
Insurance
A policy of director’s and
officers’ liability insurance is maintained by the Registrant which insures
directors and officers for losses as a result of claims against the directors
and officers of the Registrant in their capacity as directors and officers and
also reimburses the Registrant for payments made pursuant to the indemnity
provisions under the by-laws of the Registrant and the CBCA.
Commission Position on
Indemnification
Insofar as indemnification for
liabilities under the Securities Act may be permitted to directors, officers or
persons controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Commission such
indemnification is against public policy in the United States as expressed in
the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
Item 9. Undertakings.
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of
the Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent fundamental changes in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the change in volume and price represents
no more than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective
registration statement;
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II-5
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(iii)
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To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
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provided, however,
that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on Form S-3, Form
S-8, or Form F-3 and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
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(2)
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That for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial
bona fide
offering thereof.
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(3)
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To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
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(b)
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The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act, (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to section 15(d) of the
Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial
bona fide
offering
thereof.
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(h)
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Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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II-6
SIGNATURES
The Registrant
. Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized in the City
of Winnipeg on this 9th day of October, 2007.
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MEDICURE INC.
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/s/ Albert Friesen
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Name: Albert D. Friesen, Ph.D.
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Title: President and Chief Executive Officer
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II-7
POWERS OF ATTORNEY
Each person whose signature
appears below constitutes and appoints Albert D. Friesen and Derek Reimer, or
either one of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for such person and in such person’s
name, place and stead, in any and all capacities, to sign any and all amendments
to this registration statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or their substitute or substitutes, may lawfully do
or cause to be done by virtue thereof.
Pursuant to the requirements of
the Securities Act of 1933, as amended, this registration statement has been
signed by the following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/ Albert Friesen
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President and Chief Executive Officer and
Director
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October 9, 2007
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Albert D. Friesen
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(principal executive officer)
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/s/ Derek Reimer
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Chief Financial Officer and Secretary
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October 9, 2007
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Derek Reimer
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(principal financial and accounting officer)
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/s/ Arnold Naimark
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Director
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October 9, 2007
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Arnold Naimark
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/s/ Gerald McDole
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Director
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October 9, 2007
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Gerald McDole
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/s/ Peter Quick
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Director
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October 9, 2007
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Peter Quick
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II-8
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of
Section 6(a) of the Securities Act of 1933, the undersigned has signed this
registration statement, in the capacity of the duly authorized representative
of Medicure Inc. in the United States, in Mill Neck, New York on this 9th day
of October, 2007.
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By:
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/s/ Peter
Quick
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Name: Peter Quick
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Title: Director
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II-9
EXHIBIT INDEX
II-10
MEDICURE INC.
STOCK OPTION PLAN
Amended and
Restated as of October 2, 2007
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1.
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Purpose.
The purpose of the Stock Option Plan (the
“
Plan
”) of Medicure Inc. (the “
Corporation
”), a Corporation
incorporated under the federal laws of Canada, is to advance the interests
of the Corporation by encouraging its directors, management, consultants
and employees to acquire shares in the Corporation, thereby increasing
their proprietary interest in the Corporation, encouraging them to remain
associated with the Corporation and furnishing them with additional
incentive in their efforts on behalf of the Corporation in the conduct of
its affairs.
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2.
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Administration.
The Plan shall be administered by
the board of directors of the Corporation (the “
Board
”).
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Subject to the provisions of the Plan, the Board shall
have authority to construe and interpret the Plan and all Option
Agreements entered into thereunder, to define the terms used in the Plan
and in all Option Agreements entered into thereunder, to prescribe, amend
and rescind rules and regulations relating to the Plan, subject to any
necessary regulatory approvals of the Toronto Stock Exchange
(“
TSX
”), and to make all other determinations necessary or
advisable for the administration of the Plan. All determinations and
interpretations made by the Board shall be binding and conclusive on all
participants in the Plan and on their legal personal representatives and
beneficiaries.
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Each option granted hereunder
(
an
“Option
”)
shall be evidenced by an agreement (an “
Option Agreement
”), signed
on behalf of the Corporation and by the optionee, in such form as the
directors shall approve. Each such agreement shall recite that it is
subject to the provisions of this Plan.
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3.
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Shares Subject to Plan.
Subject to adjustment as
provided in Section 14 hereof, the shares to be offered under the Plan
shall consist of common shares of the Corporation (“
Shares
”) which
shall be issued from treasury for purposes of the Plan. The aggregate
number of Shares that may be reserved for issuance at any time pursuant to
Options granted under this Plan shall not exceed 10% of the total number
of Shares issued and outstanding at the date of any grant made hereunder.
Any exercise of an Option granted under the Plan will result in an
additional grant being available under the Plan. If any Option shall
expire or terminate for any reason without having been exercised in full,
the unpurchased Shares subject thereto shall again be available for the
purpose of this Plan.
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4.
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Maintenance of Sufficient Capital.
The Corporation
shall at all times during the term of this Plan reserve and keep available
such numbers of Shares as will be sufficient to satisfy the requirements
of the Plan.
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5.
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Eligibility and Participation.
Directors,
officers, management, consultants and employees of the Corporation shall
be eligible for selection to participate in the Plan (such persons
hereinafter collectively referred to as “
Participants
”). The Board
shall determine to whom Options shall be granted, the terms and provisions
of the respective Option Agreements, the time or times at which such
Options shall be granted, and the number of Shares to be subject to each
Option. An individual who has been granted an Option may, if he is
otherwise eligible, and if permitted under the policies of the stock
exchange or stock exchanges on which the Shares are to be listed, be
granted an additional Option or Options if the directors shall so
determine.
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6.
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Exercise Price
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(a)
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The exercise price of the Shares covered by each Option
shall be determined by the Board. Subject to the provisions of Section
6(b), the exercise price shall be not less than the closing price of the
Shares on the primary stock exchange on which the Shares are listed on the
last trading day immediately preceding the day on which the Option is
granted.
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(b)
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If an Option is granted within six months of a public
distribution of the Shares by way of prospectus, then the minimum exercise
price of such Option shall, if the policy of such stock exchange or stock
exchanges requires, be the greater of the price determined pursuant to
Section 6(a) and the price per Share paid by the investing public for
Shares acquired by the public during such public distribution, determined
in accordance with the policy of such stock exchange or stock
exchanges.
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7.
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Number of Optioned Shares.
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(a)
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The number of Shares issuable to Insiders, at any time,
under all security based compensation arrangements, cannot exceed 10% of
the issued and outstanding Shares.
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(b)
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The number of Shares issued to Insiders, within any one
year period, under all security based compensation arrangements, cannot
exceed 10% of the issued and outstanding Shares.
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(c)
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“
Insider
” means any insider of the Corporation (as
such term is defined in subsection 1(1) of the
Securities Act
(Ontario) as amended from time to time), other than a person who falls
within that definition solely by virtue of being a director or officer of
a subsidiary of the Corporation, and includes any “associate” of any
insider (as such term is defined in the said subsection as amended from
time to time).
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8.
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Duration of Option.
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(a)
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Each Option and all rights thereunder shall be expressed
to expire on the date set out in the Option Agreements and shall be
subject to earlier termination as provided in paragraphs 10 and
11.
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(b)
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Notwithstanding any other provision of this Plan, no
Option shall terminate, become void and of no effect or cease to be
exercisable, whether as a result of the expiry of the term fixed for
exercise of the Option or as a result of the termination or cessation of
employment of an optionee, prior to 5:00 p.m. (Toronto time) on the tenth
business day following the cessation of any Trading Blackout applicable to
such optionee in effect at the time such Option would otherwise expire or
terminate or if a Trading Blackout is not then in effect, prior to 5:00
p.m. (Toronto time) on the tenth business day following cessation of the
most recent Trading Blackout applicable to such optionee prior to the
Expiry Date.
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(c)
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“
Trading Blackout
” means any restricted trading
period imposed by the Corporation during which the directors and officers
of the Corporation and specified employees are prohibited from trading in
the securities of the Corporation.
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9.
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Option Period, Consideration and
Payment.
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(a)
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The Option Period shall be a period of time fixed by the
Board, not to exceed ten years from the date the Option is granted,
provided that the Option Period shall be reduced with respect to any
Option as provided in Sections 10 and 11 covering cessation as a director,
officer, consultant or employee of the Corporation or death of the
Participant.
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(b)
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An Option shall vest and may be exercised (in each case
to the nearest full Share) during the Option Period in such manner as the
Board may fix by resolution. Options which have vested may be exercised in
whole or in part at any time and from time to time during the Option
Period.
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(c)
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Except as set forth in Section 10 and 11, no Option may
be exercised unless the Participant is at the time of such exercise a
director, officer, manager, consultant, or employee of the Corporation. In
the case of a consultant, where the Option has been granted for a specific
service, the Option may be exercised only upon completion of that
service.
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(d)
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The exercise of any Option will be contingent upon
receipt by the Corporation at its head office of a written notice of
exercise, specifying the number of Shares with respect to which the Option
is being exercised, accompanied by cash payment, certified cheque or bank
draft for the full purchase price of such Shares with respect to which the
Option is exercised. No Participant or his
legal
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representatives, legatees or distributes will be, or
will deemed to be, a holder of any Shares subject to an Option under this
Plan, unless and until the certificate for such Shares are issued to him
or them under the terms of the Plan.
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10.
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Ceasing to Be a Director, Consultant, Officer,
Manager, Consultant or Employee.
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If a Participant shall cease to be a director, officer,
manager, consultant or employee of the Corporation or a company for any
reason (other than death), he may, but only within the earlier of the
original expiry date and 90 days next succeeding his ceasing to be a
director, officer, manager, consultant, or employee, exercise his Option
to the extent that he was entitled to exercise it at the date of such
cessation.
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Nothing contained in the Plan, nor in any Option granted
pursuant to the Plan, shall as such confer upon any Participant any right
with respect to continuance as a director, officer, manager, consultant or
employee of the Corporation or of any affiliate.
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11.
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Death of Participant.
In the event of the death of
a Participant, the Option previously granted to him shall be exercisable
only by the earlier of the original expiry date and the date that is
twelve months after the date of death and then only:
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(a)
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by the person or persons to whom the Participant’s rights
under the Option shall pass by the Participant’s will or the laws of
descent and distribution; and
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(b)
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if and to the extent that he was entitled to exercise the
Option at the date of his death.
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12.
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Right of Optionee.
No person entitled to exercise
any Option granted under the Plan shall have any of the rights or
privileges of a shareholder of the Corporation in respect of any Shares
issuable upon exercise of such Option until certificates representing such
Shares shall have been issued and delivered.
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13.
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Proceeds from Sales of Shares.
The proceeds from
sales of Shares issued upon the exercise of Options shall be added to the
general funds of the Corporation and shall thereafter be used from time to
time for such corporate purposes as the Board may determine and
direct.
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14.
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Adjustments.
If the outstanding Shares of the
Corporation are increased, decreased, changed into or exchanged for a
different number or kind of shares of securities of the Corporation
through re-organization, merger, re-capitalization, re-classification,
stock dividend, subdivision or consolidation, an appropriate and
proportionate adjustment shall be made in the maximum number of kind of
shares as to which Options may be granted under the Plan. A corresponding
adjustment changing the number or kind of shares allocated to unexercised
Options or portions thereof, which shall have been granted prior to any
such change, shall likewise be made. Any such adjustment in the
outstanding Options shall be made without change in the aggregate purchase
price applicable to the
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unexercised portion of the Option but
with a corresponding adjustment in the price for each share or other unit of any
security covered by the Option.
Upon the liquidation or dissolution of
the Corporation or upon a re-organization, merger or consolidation of the
Corporation with one or more corporations as a result of which the Corporation
is not the surviving corporation, or upon the sale of substantially all of the
property or more than eighty (80%) percent of the then outstanding Shares of the
Corporation to another corporation, the Plan shall terminate, and any Options
theretofore granted hereunder shall terminate unless provision is made in
writing in connection with such transaction for the continuance of the Plan and
for the assumption of Options theretofore granted, or the substitution for such
Options of new options covering the shares of a successor employer corporation,
or a parent or subsidiary thereof, with appropriate adjustments as to number and
kind of shares and prices, in which event the Plan and Options theretofore
granted shall continue in the manner and upon the terms so provided. If the Plan
and outstanding Options shall terminate pursuant to the foregoing sentence, then
immediately prior to consummation of the event which results in the termination
of the Plan and outstanding Options, the Board may determine that all of the
Options of an optionee vest and become exercisable for such period as the Board
specifies. Options not exercised within the specified period will terminate.
Adjustments under this Section shall be
made by the Board, subject to the approval of the primary stock exchange on
which the shares of the Corporation are listed, whose determination as to what
adjustments shall be made, and the extent thereof, shall be final, binding and
conclusive. No fractional share shall be issued under the Plan on any such
adjustment.
14.1 Change of Control.
If a
bona fide offer (the “
Offer
”) for voting or equity shares is made to
shareholders of the Corporation generally, or to a class of shareholders of the
Corporation which, if Options were exercised, would include the Participants,
and which Offer, if accepted in whole or in part, would result in the offeror
exercising control over the Corporation within the meaning of subsection 1(3) of
the
Securities Act
(Ontario) then, notwithstanding Sections 8 and 9 but
subject to the other provisions hereof:
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(a)
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The Board may give its express consent to the exercise of
any Options which are outstanding although not yet exercisable at the time
of the Offer in the manner hereinafter provided.
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(b)
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If the Board has so consented to the exercise of any
Options outstanding at the time of the Offer, the Corporation shall,
immediately after such consent has been given, notify each Participant
currently holding an Option of the Offer, with full particulars thereof,
together with a notice stating that, in order to permit the Participant to
participate in the Offer, the Participant may, during the period that the
Offer is open for acceptance (or, if no such period is specified, the
period of 30 days following the date
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of such notice), exercise all or any portion of any such
Option held by the Participant.
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(c)
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In the event that the Participant so exercises any such
Option, such exercise shall be in accordance with Sections 6, 7 and 9(d)
hereof; provided that, if necessary in order to permit the Participant to
participate in the Offer, such Option shall be deemed to have been
exercised, and the issuance of Shares received upon such exercise (the
“
Optioned Shares
”) shall be deemed to have occurred, effective as
of the first day prior to the date on which the Offer was made.
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(d)
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If, upon the expiry of the applicable period referred to
in subsection (b) above, the Offer is completed, and:
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(i)
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the Participant has not exercised the entire or any
portion of such Option then, as of and from the expiry of such period, the
Participant’s right to purchase the Shares covered by such Option shall
not be exercisable, and shall expire and be null and void; and
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(ii)
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the Participant has exercised the entire or any portion
of such Option, but has not tendered the Shares received in connection
with such exercise to the Offer, then, as and from the expiry of such
period, the Corporation may require the Participant to sell to the
Corporation such Optioned Shares for a purchase price of $.001 per
Optioned Share.
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(e)
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If:
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(i)
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the Offer is not completed (within the time specified
therein, if applicable);
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or
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(ii)
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all of the Optioned Shares tendered by the Participant
pursuant to the Offer are not taken up and paid for by the offeror in
respect thereof;
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then the Optioned Shares or, in the case of paragraph
(ii) above, the portion thereof that is not taken up and paid for by such
offeror, shall be returned by the Holder to the Corporation for
cancellation and the terms of the Option as set forth herein shall again
apply to such Option, or the remaining portion thereof, as the case may
be.
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(f)
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If any Optioned Shares are returned to the Corporation
pursuant to subsection (e) above, the Corporation shall refund the Option
price to the Participant in respect of such Optioned
Shares.
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(g)
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In no event shall the Participant be entitled to
sell the Optioned Shares otherwise than pursuant to the Offer, except as
provided in paragraph (d)(ii) above.
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15.
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Transferability.
All benefits, rights and Options
accruing to any Participant in accordance with the terms and conditions of
the Plan shall not be transferable or assignable unless specifically
provided herein. During the lifetime of a Participant any benefits, rights
and Options may only be exercised by the Participant.
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16.
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Amendment and Termination of Plan.
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(a)
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The Board may, at any time, suspend or terminate the Plan
or amend or revise the terms of the Plan, provided that no such amendment
or revisions shall alter the terms of any Options theretofore granted
under the Plan. Subject to Section 16(b) and subject to any necessary
approval of the TSX or any other Stock Exchange on which the Shares may be
listed, the Board may, from time to time, and without the approval of the
Company’s shareholders: (i) amend the Plan and the terms and the
conditions of any Options thereafter to be granted; and (ii) with the
consent of the affected holder of an Option, amend the Plan and the terms
and conditions of any Options which have been theretofore
granted.
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(b)
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The shareholders of the Company shall approve any
amendment to the Plan or any Option which (i) reduces the exercise price
of an Option granted to an Insider
;
(ii) extends the period
available to exercise an Option granted to an Insider other than as
provided in Section 8(b); or (iii) increases the number of shares reserved
for issuance under the Plan (other than pursuant to the provisions of
Section 14 hereof).
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17.
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Necessary Approvals.
The obligation of the
Corporation to issue and deliver Shares in accordance with the Plan is
subject to any approvals which may be required from any regulatory
authority or stock exchange having jurisdiction over the securities of the
Corporation. If any Shares cannot be issued to any Participant for
whatever reason, the obligation of the Corporation to issue such Shares
shall terminate and any Option exercise price paid to the Corporation will
be returned to the Participant.
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18.
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Stock Exchange Rules.
The rules of any stock
exchange upon which the Corporation’s Shares are listed shall be
applicable relative to Options granted to Participants.
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19.
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Effective Date of Plan.
The Plan has been adopted
by the Board of the Corporation subject to the approval of the stock
exchange or stock exchanges on which the Shares of the Corporation are to
be listed and, if so approved, the Plan shall became effective upon such
approvals being obtained.
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20.
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Interpretation.
The Plan will be governed by and
construed in accordance with the laws of
Canada.
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MEDICURE INC.
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Per:
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/s/
Albert D. Friesen
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Per:
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/s/
Derek Reimer
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STOCK OPTION AGREEMENT
THIS AGREEMENT made as of the XX day of
XX 2007.
BETWEEN:
OPTIONEE NAME
, an individual of
the City of
XX, in the Province of XX
(herein referred to as the
“Optionee”)
-and-
MEDICURE INC.
, a body corporate,
incorporated federally under the
laws of Canada, having an office in the
City of Winnipeg, in the Province
of Manitoba
(herein referred to as the
“Corporation”)
WHEREAS:
1. the Corporation is incorporated under the laws of Canada,
having an authorized capital consisting of an unlimited number of common shares
without nominal or par value and an unlimited number of preferred shares without
nominal or par value; and 2. the Board has agreed to grant unto the Optionee an
option to purchase an aggregate of XX,000 common shares without par value of its
authorized unissued share capital in consideration of the Optionee’s ongoing
services and contributions to the Corporation or any of its subsidiaries or
affiliates; and 3. the granting of such option to the Optionee was authorized by
the Board effective XX, 2007.
ARTICLE 1
DEFINITIONS
1.01 In this Agreement the following terms shall have the
following meanings:
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(a)
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“Agreement”, “herein”, “hereto”, “hereof” and similar
expressions means this Agreement, and includes any Agreement amending this
Agreement or any Agreement or instrument which is supplemental or
ancillary hereof;
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(b)
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“Board” means the Board of Directors of the
Corporation;
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(c)
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“Expiration Date” means XX, 2017;
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(d)
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“Option Date” in respect of the Share Option means the
date of this Agreement;
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(e)
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“Option Shares” means the Shares the Optionee is entitled
to purchase under a Share Option;
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(f)
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“Share” means a common share of the Corporation as
constituted at the date hereof;
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(g)
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“Share Option” means an option to purchase Treasury
Shares granted to the Optionee pursuant to this Agreement, and includes
any portion of that option; and
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(h)
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“Treasury Share” means a theretofore unissued Share which
is purchased directly from the Corporation by or for the account of the
Optionee.
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1.02 In the Agreement, the masculine gender shall include the
feminine gender and the singular shall include the plural and vice versa
wherever the context requires.
ARTICLE II
SHARE OPTION
2.01 The Corporation hereby grants to the Optionee, subject to
the terms and conditions hereinafter set out, an irrevocable option to purchase
at any time or from time to time on or before the Expiration Date, XX,000 Shares
of the Corporation at a price of $XX per Share.
2.02 The Share Option shall vest and shall be exercisable over
a period of three years, at 33 1/3% per year, with the first 33 1/3% of the
Share Option vesting on the first anniversary of XX, 2007, the second 33 1/3% of
the Share Option vesting on the second anniversary of XX, 2007, and the third 33
1/3% of the Share Option vesting on the third anniversary of XX, 2007.
2.03 At 4:30 p.m., Winnipeg time, on the Expiration Date, the
Share Option or any portion thereof remaining unexercised shall forthwith expire
and terminate and be of no further force or effect whatsoever as to such of the
Option Shares in respect of which the Share Option hereby granted has not then
been exercised.
ARTICLE III
CURRENCY DURING TERM OF
EMPLOYMENT
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3.01
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(a)
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If an Optionee shall cease to be a director, officer,
consultant, scientific advisory board member or employee of the
Corporation or any of its subsidiaries or affiliates, as the case may be,
for any reason (other than death), he may but only within sixty (60) days
next succeeding his ceasing to be a director, officer, consultant,
scientific advisory board member or employee, exercise his Share Option to
the extent that he was entitled to exercise it at the date of such
cessation.
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(b)
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In the event of the death of an Optionee, the Share
Option previously granted to him shall be exercisable only within the
twelve (12) months next succeeding such death and then only by the person
or persons to whom the Optionee’s rights under the Share Option shall pass
by the Optionee’s will or the laws of descent and distribution and if and
to the extent that he was entitled to exercise the Share Option at the
date of his death.
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ARTICLE IV
MATERIAL CHANGE
4.01 In the event that, prior to the Expiration Date or
exercise in full of the Share Option, the outstanding share capital of the
Corporation shall be subdivided or consolidated into a greater or lesser number
of Shares, or, in the event of the payment of a stock dividend by the
Corporation, or in the event that all of the shareholders of the Corporation are
granted the right to purchase additional Shares of the Corporation, the number
and price of Option Shares remaining subject to the Share Option hereunder shall
be increased or reduced accordingly, as the case may be.
4.02 If, prior to the Expiration Date or exercise in full of
the Share Option granted hereby, the Corporation shall, enter into an
arrangement with or merge into another corporation, the Optionee will thereafter
receive, upon the exercise of the Share Option, the securities or properties to
which a holder of the number of Shares then deliverable upon the exercise of the
Share Option would have been entitled upon such arrangement or merger, and the
Corporation will take steps in connection with such arrangement or merger as may
be necessary to assure that the provisions hereof shall thereafter be
applicable, in relation to any securities or property thereafter deliverable
upon the exercise of the Option granted hereby. A sale of all or substantially
all of the assets of the Corporation for consideration, (apart from the
assumption of obligations), consisting primarily of securities shall be deemed
to be an arrangement or merger for the foregoing purposes.
ARTICLE V
RESERVATION OF TREASURY
SHARES
5.01 The Corporation shall at all times during the term of this
Agreement, reserve and keep available a sufficient number of Treasury Shares to
satisfy the requirement hereof.
ARTICLE VI
RESTRICTION ON
ASSIGNMENT
6.01 The Share Option granted hereby is, insofar as the
Optionee is concerned, personal and non-assignable and neither this Agreement
nor any rights in regard thereto shall be transferable or assignable except upon
the death of the Optionee pursuant to Clause 3.01 hereof.
ARTICLE VII
EXERCISE OF THE SHARE
OPTION
7.01 The Share Option may be exercised by the Optionee in
accordance with the provisions hereof in whole or in part, from time to time, by
delivery of written notice of such exercise and by tendering the payment
therefor in cash or by certified cheque to the Corporation at its principal
office in the City of Winnipeg, in the Province of Manitoba. Such notice shall
state the number of the Option shares with respect to which the Share Option is
then being exercised. The Share Option shall be deemed for all
purposes to have been exercised to the extent stated in such
notice upon delivery of the notice and tender of payment in full, not
withstanding any delay in the issuance and delivery of the certificates for the
Shares so purchased.
ARTICLE VIII
RIGHTS OF THE OPTIONEE PRIOR TO
EXERCISE DATE
8.01 The Share Option herein granted shall not entitle the
Optionee to any rights whatsoever as a shareholder of the Corporation with
respect to any Shares subject to the Share Option until it has been exercised in
accordance with Clause 7.01 and Option Shares have been issued as fully paid and
non-assessable.
ARTICLE IX
FURTHER ASSURANCE
9.01 The parties hereto covenant that they shall and will from
time to time and at all times hereafter do and perform all such acts and things
and execute all such additional documents as may be required to give effect to
the terms and intention of this Agreement.
ARTICLE X
INTERPRETATION
10.01 It is understood and agreed by the parties hereto that
questions may arise as to the interpretation, construction or enforcement of
this Agreement and the parties are desirous of having the Board determine any
such question of interpretation, construction or enforcement. It is therefore
understood and agreed by and between the parties hereto that any question
arising under the terms of this Agreement as to interpretation, construction or
enforcement shall be referred to the Board and its majority decision shall be
final and binding on both of the parties hereto.
ARTICLE XI
ENTIRE AGREEMENT
11.01 This Agreement supersedes all other agreements,
documents, writings and verbal understandings among the parties relating to the
subject matter hereof and represents the entire agreement between the parties
relating to the subject matter hereof.
ARTICLE XII
ENUREMENT
12.01 Subject to the other provisions hereof, this Agreement
shall enure to the benefit of and be binding upon the parties hereto and their
respective heirs, executors, administrators, successors and permitted
assigns.
12.02 This Agreement shall constitute a binding obligation of
the Corporation notwithstanding any change of control of its voting securities
during the term hereof.
IN WITNESS WHEREOF the parties
hereto have executed this Agreement as of the day and year first above
written.
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SIGNED
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)
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in the presence of:
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)
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)
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)
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)
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OPTIONEE
NAME
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Lang Michener LLP
BARRISTERS & SOLICITORS
Vancouver
Toronto
Ottawa
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1500 - 1055 West Georgia Street, P.O. Box 11117
Vancouver, British Columbia, Canada V6E 4N7
Telephone (604) 689-9111
Facsimile (604) 685-7084
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October 5, 2007
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Geofrey Myers
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Direct Line: 416-307-4040
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E-mail: gmyers@langmichener.ca
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United States
Securities and Exchange Commission
Washington, D.C. 20549
Dear Sirs/Mesdames:
We have acted as corporate counsel to Medicure Inc., a company
existing under the laws of Canada (the “Company”), in connection
with the registration by the Company pursuant to a registration statement (the
“Registration Statement”) on Form S-8 filed with the Securities
and Exchange Commission (the “Commission”) under the Securities
Act of 1933, as amended (the “Securities Act”), relating to the
registration of 13,030,755 common shares of the Company, no par value (the “Common
Shares”), issuable pursuant to awards granted under the Company’s
Stock Option Plan (the “Plan”).
This opinion is being delivered in connection with the
Registration Statement, to which this opinion is attached as an exhibit.
We have examined the Registration Statement, and, for the
purposes of this opinion, we have also examined the originals, or duplicate,
certified, conformed, telecopied or photostatic copies, of such corporate
records, agreements, documents and other instruments and have made such other
investigations as we have considered necessary or relevant for the purposes of
this opinion. With respect to the accuracy of factual matters material to this
opinion, we have relied upon the financial statements of the Company,
certificates or comparable documents and representations of public officials and
of officers and representatives of the Company.
In giving this opinion, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to authentic original
documents of all documents submitted to us as duplicates, certified, conformed,
telecopied or photostatic copies and the authenticity of the originals of such
latter documents.
We are qualified to express opinions only with respect to the
laws of the province of Ontario and the federal laws of Canada applicable
therein. We express no opinion on the laws of any
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www.langmichener.ca
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Toronto
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Vancouver
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Ottawa
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Lang Michener LLP
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Lawyers – Patent & Trade Mark Agents
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Page 2
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jurisdiction other than the laws of the province of Ontario and
the federal laws of Canada applicable therein.
Based and relying upon the foregoing, and subject to the
qualifications, assumptions and limitations stated herein, we are of the opinion
that the Common Shares have been duly authorized and, upon issuance, delivery
and payment therefor in accordance with the terms of the Plan and any relevant
agreements thereunder, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement.
If you have any questions concerning the foregoing, please contact
the undersigned.
Yours truly,
/s/ Lang Michener LLP
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www.langmichener.ca
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Toronto
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Vancouver
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Ottawa
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