BioAmber Inc fka BIOAQ

[fireballka7]

TERMS AND CONDITIONS TO PLACE BIDS

REQUEST FOR BINDING OFFERS
IN THE MATTER OF THE LIQUIDATION PLAN OF BIOAMBER SARNIA INC. TERMS AND CONDITIONS
On July 31, 2018, BioAmber Canada inc. (“BioAmber Canada”), BioAmber Sarnia Inc. (“BioAmber Sarnia”) (Collectively designated as the “Canadian Companies”) and BioAmber Inc. (“Collectively with the Canadian Companies designated as “BioAmber” or the “Company”) obtained an order from the Superior Court of Quebec (the “Court”) pursuant to the Companies’ Creditors Arrangement Act (the “CCAA”). In the context of such proceedings, Pricewaterhouse Coopers Inc. as Monitor (“PwC”) to the Company initiated on behalf of the Company a solicitation process requesting binding offers (the “Request for Binding Offers”) as presented in this Request for Binding Offers.
The Request for Binding Offers and the resulting process are governed by the terms and conditions set forth below (the “Terms and Conditions”) and by the terms set forth in the document entitled “Non-Disclosure Agreement” attached as Appendix 1 to these Terms and Conditions (the “Confidentiality Agreement”).
1. Incorporation of the Request for Binding Offers. The content of the Request for Binding Offers, of the Confidentiality Agreement and their defined terms are an integral part of these Terms and Conditions.
2. Seller / Issuer. The seller or issuer, as the case may be, is BioAmber.
3. The Assets. The Company’s assets (the “Assets”) are described in the Request for Binding Offers under Section entitled “Transaction Process”. Bids can be submitted for any or all of the Assets.
4. Recapitalisation. Bids can also be submitted for the recapitalisation of BioAmber (the “Recapitalisation”), under which: (a) the Qualified Bidder (as defined below) would subscribe to common shares of BioAmber (“Common Shares”) whether as part of a one step or 2-step transaction; (b) if required by the Qualified Bidder, all currently outstanding shares of BioAmber would be cancelled by way of amendments to its articles; (c) the net proceeds of the Recapitalisation would be used to settle all or part of BioAmber’s outstanding obligations.
5. Qualified Bidder. BioAmber shall only consider offers from bidders who have provided to PwC a Qualified Bid (each a “Qualified Bidder”);
6. Due Diligence. Upon request made by the Qualified Bidder to PwC, and upon execution of a Confidentiality Agreement, the Qualified Bidder may be granted access to a virtual online data room providing information in respect to the Assets and/or BioAmber with a view to allow the Qualified Bidder to complete its due diligence prior to submitting a bid.

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7. Qualified Bid. PwC on behalf of BioAmber shall only consider bids who meet the following
conditions (“Qualified Bid”):
(a) It is submitted by the Bid Deadline (as defined below);
(b) It is subject to these Terms and Conditions;
(c) It pertains to the acquisition of the Assets, or some of them, exclusively or to the Recapitalisation;
(d) With respect to the Assets (if applicable), it indicates the purchasing entity for the Assets (or any part thereof), the purchase price offered and a separate allocation for each of the Assets if the bid only covers part of the Assets;
(e) With respect to the Recapitalisation, it indicates the subscriber to the Common Shares and the purchase price/subscription price offered for the Common Shares;
(the aggregate purchase price for the Assets or the purchase price/subscription price for the Common Shares, as the case may be, and in both cases excluding any applicable duties or taxes, being referred to as the “Purchase Price”);
(f) It is accompanied by satisfactory evidence of the Qualified Bidder’s ability to complete the Contemplated Transaction (as defined below), which allows the Company and its secured lenders, in consultation with PwC, to make a reasonable determination as to the Qualified Bidder’s financial and other capabilities to complete the Contemplated Transaction;
(g) It is not conditioned on the outcome of unperformed due diligence and/or obtaining financing;
(h) It is accompanied by a deposit in an amount of no less than 10% of the Purchase Price in the form of a certified cheque, irrevocable wire transfer or bank draft payable to PricewaterhouseCoopers Inc. - in trust, or by a bank standby letter of credit to its order payable on sight (the “Deposit”);
(i) It provides for a closing of the Contemplated Transaction by no later than August 31, 2018 (the “Closing Date”); It is accompanied by other information reasonably requested by BioAmber and/or PwC, as the case may be.
8. Bid Deadline. Qualified Bids must be received in a sealed envelope by PwC at the latest by 9:00 AM (Eastern Standard Time) on August 21, 2018 (the “Bid Deadline”). The sealed envelope must clearly be marked “Bid – BioAmber’s Assets”.
9. Opening of Qualified Bids. Qualified Bids will be opened at PwC’s offices upon expiry of the Bid Deadline and no bidder shall be present at the opening of bids.

10. Withdrawal of a Qualified Bid. All Qualified Bids submitted constitute a firm offer and cannot be revoked, unless a written notice of withdrawal of the Qualified Bid is received by PwC before the expiry of the Bid Deadline.
11. Retained Bidder and Contemplated Transaction. BioAmber, after consultation with PwC and its secured lenders, shall determine which of the Qualified Bids, if any, is acceptable. That being said, BioAmber may elect to reject any or all Qualified Bids, and is under no obligation to accept any of the Qualified Bids. The Qualified Bidders shall be informed in writing at the latest by 5:00 PM (Eastern Standard Time) on August 21, 2018 of PwC’s decision in respect to their respective Qualified Bid:
(a) If a Qualified Bid is accepted by PwC on behalf of BioAmber, the Qualified Bidder shall receive a notice of acceptance from PwC (the “Notice of Acceptance”), confirming that BioAmber agrees to complete the transaction it contemplates (each a “Contemplated Transaction”) with the Qualified Bidder (each a “Retained Bidder”), the whole subject to the issuance of the Approval Order as defined herein (each a “Retained Bid”);
(b) If a Qualified Bid is not accepted, the Qualified Bidder shall receive a notice of non- acceptance from PwC and the Deposit (without any accrued interest, as the case may be) will be promptly returned. The Qualified Bidder recognizes and acknowledges that it has no recourse against PwC and/or BioAmber as a result of the non-acceptance of its Qualified Bid, save and except in respect to the return of the Deposit (without any accrued interest, as the case may be).
12. Definitive Agreements. Following receipt of a Notice of Acceptance, the Retained Bidder, BioAmber and PwC undertake to negotiate in good faith to finalize the definitive agreements necessary to fully implement the Contemplated Transaction (the “Definitive Agreements”).
Court Approval. Any Retained Bid shall be subject to the issuance of a final order from the Court authorizing PwC or BioAmber to enter into the Contemplated Transaction and, as the case may be, transferring the Assets to the Retained Bidder (as defined below) free and clear of any hypothecs, liens, priorities and other charges or completing the Recapitalization (the “Approval Order”). The motion seeking issuance of the such Order shall not be filed with the Court record before the Definitive Agreements are executed in final form, as confirmed in writing by BioAmber, PwC and the Retained Bidder.
13. Closing. The closing of the Contemplated Transaction(s) shall occur by no later than the Closing Date.
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14. Liability for Taxes. All applicable duties and taxes over and above the Purchase Price that may be payable as a result of or in connection with the Contemplated Transaction shall be paid by the Retained Bidder.
15. Withdrawal of Acceptance. PwC and/or BioAmber may withdraw its Notice of Acceptance at any time before closing of the Contemplated Transaction. In the event of such withdrawal, PwC shall return the Deposit (without accrued interest, as the case may be) promptly to the Retained Bidder, and the Retained Bidder will have no further rights or recourse against BioAmber and/or PwC.
16. As Is Where Is. Any Contemplated Transaction shall be completed on an “as is, where is” basis, without any representations or warranties of any nature whatsoever, implicit or explicit, legal or conventional, statutory or otherwise, with respect to the Assets, the shares of BioAmber or BioAmber, as the case may be, including any implied warranties of merchantability or fitness for a particular purpose or environmental compliance, as well as any warranty as to the description, quality, condition, value, marketability, fitness for use, boundary lines, area, title or otherwise. By submitting an offer, each bidder recognizes and acknowledges that:
(i) it has had the opportunity to conduct all due diligence regarding the Assets, the shares of BioAmber (if applicable) or BioAmber, as the case may be, before submitting its bid;
(ii) it has relied solely upon its own independent review, investigation and/or inspection of any documents and/or the Assets, the shares of BioAmber (if applicable) or BioAmber, as the case may be, in submitting its bid;
(iii) it did not rely upon any written or oral statements, representations, warranties, or guarantees whatsoever, whether express, implied, statutory or otherwise, regarding the Assets, the shares of BioAmber or BioAmber, as the case may be, or the completeness of any information provided;
(iv) the Contemplated Transaction, shall be made on an “as is where is” basis, at its own risks and perils, without any representations or warranties of any nature whatsoever, implicit or explicit, legal or conventional, statutory or otherwise, with respect to the Assets, the shares of BioAmber (if applicable) or BioAmber, as the case may be; and
(v) PwC and BioAmber are not a professional sellers.
17. Possession. At the Closing Date and if applicable, the Retained Bidder shall take possession of the Assets or the shares of BioAmber (if applicable) on an “as is, where is” basis, at his own cost, without any liability on the part of BioAmber and/or PwC. The Retained Bidder shall indemnify and hold harmless BioAmber and/or PwC, as the case may be, against any claims in connection with damages caused to the premises where the Assets are located as a result of the taking in possession of the Assets subject to the Contemplated Transaction by the Retained Bidder.
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18. Title. If applicable, title to the Assets or to the shares of BioAmber subject to the Contemplated Transaction will not pass to the Retained Bidder nor will the Retained Bidder be entitled to possession of the Assets or the shares of BioAmber until the Closing Date.
19. Default of a Qualified Bidder. If a Qualified Bidder fails to comply with any of these Terms and Conditions, the Confidentiality Agreement and/or its Qualified Bid, it shall indemnify BioAmber and/or PwC, as the case may be, for damages incurred as a result of such default.
20. Default of the Retained Bidder. If the Retained Bidder fails to complete the Contemplated Transaction, or breaches in any way these Terms and Conditions and/or the Confidentiality Agreement:
(a) The Retained Bidder will be deemed to have waived any rights and interest it may have in the Deposit and to have instructed PwC to immediately remit the Deposit to BioAmber; and
(b) BioAmber and/or PwC, as the case may be, may claim damages against the Retained Bidder if the Deposit is insufficient to cover the damages suffered.
21. Assignment of Rights. Neither a Qualified Bidder nor a Retained Bidder shall transfer or assign any of its rights and/or interests in and to the Qualified Bid and/or the Retained Bid to any third party, except with the explicit written consent from PwC or BioAmber. If such consent is given by PwC or BioAmber, the Qualified Bidder, the Retained Bidder and the designated assignee will be solidarily liable for the obligations of the Qualified Bidder and/or the Retained Bidder under the Qualified Bid and/or the Retained Bid.
22. Notice. All communications (including, without limitation, all notices, acceptances, consents and approvals) provided for or permitted under these Terms and Conditions (a “Notice”) shall be in writing, sent by personal delivery, courier or sent by facsimile or electronic transmission at the following coordinates:
To the bidders: at the coordinates indicated in the Bid. To PwC:
PricewaterhouseCoopers Inc.
1250 Rene-Levesque Blvd West, Suite 2500 Montreal, Quebec H3B 4Y1
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Attention: Telephone:
Email:
Attention: Telephone:
Email:
Christian Bourque, CPA, CA, CIRP, LIT [phone]
[e-mail]
Emile Liu [phone]
[e-mail]