Concerned Bioniche Shareholders Call Special Meeting of Shareholders to Replace Bioniche's Board
27 Jun, 2013, 18:46 ET
-Special Meeting Called Following Bioniche Board's Dereliction of its Fiduciary and Statutory Duties and Failure to Call a Properly Requisitioned Special Meeting of Shareholders
-Bioniche Shareholders Invited to learn more and Join the Concerned Shareholder Campaign for A Better Future for Bioniche by visiting www.savebioniche.com and Registering Support for the Concerned Shareholders
TORONTO, June 27, 2013 /CNW/ - The Concerned Shareholders of Bioniche Life Sciences Inc. ("Bioniche"), William (Bill) M. Wells, former Chief Executive Officer of Biovail Corporation, and Greg Gubitz, former General Counsel and Senior Vice President of Corporate Development at Biovail Corporation (the "Concerned Shareholders"), announced that pursuant to section 143(4) of the Canada Business Corporations Act ("CBCA") Mr. Wells has called a Special Meeting of the Bioniche Shareholders so shareholders can have the opportunity to vote to replace the Board of Directors with seven independent nominees nominated by the Concerned Shareholders.
The Concerned Shareholders have a statutory right as 5% shareholders to call a Special Meeting of Shareholders. Given the current Board's breach of its statutory obligations to call a shareholders' meeting (clearly doing so with a view to entrenching themselves and with utter disregard for the owners of the Company), the Concerned Shareholders have called the Special Meeting to ensure that the Company's shareholders are given an opportunity to decide on the future direction of Bioniche. The current Board continues to mismanage the company and intends to sell Bioniche's animal health business. Almost all of Bioniche's revenues and cash flow are provided by that animal health business. If the sale is completed, it would permanently impair Bioniche and destroy shareholder value.
The Concerned Shareholders have a strategy to create long-term shareholder value for Bioniche, at the centre of which is retaining, developing and scaling the animal health business. Bioniche shareholders are invited to visit www.savebioniche.com to learn more and to join the Concerned Shareholder Campaign for A Better Future for Bioniche.
The Special Meeting will be held on August 27, 2013 to replace the Board of Directors with seven independent nominees. The record date for the meeting is July 22, 2013. Computershare Investor Services Inc. has been appointed by the Concerned Shareholders to provide services in connection with the calling and holding of the Special Meeting and the Concerned Shareholders will appoint Computershare as the scrutineer for the Special Meeting. The time and location of the Special Meeting will be announced later.
Immediate action is imperative
The Special Meeting was called because the Concerned Shareholders have the legal right to a shareholders' meeting and the Concerned Shareholders believe that all Bioniche shareholders have an economic imperative to replace the current Board as soon as possible before all shareholder value is destroyed.
The Concerned Shareholders have submitted two valid requisitions to call a Special Meeting of Shareholders, both of which were in full compliance with the requirements of the CBCA. Both were improperly rejected by the Bioniche board that is acting in its own self-interest and contrary to its fiduciary duties. The shareholders have a legal right to be heard as soon as possible at a special meeting to replace the board.
The Concerned Shareholders outlined the considerable risk, along with the opportunity to pursue a fresh approach to value creation, in the following letter to Bioniche Shareholders:
LETTER TO BIONICHE SHAREHOLDERS FROM
THE CONCERNED SHAREHOLDERS
Dear fellow Shareholders of Bioniche,
The Value of Your Investment in Bioniche is at Risk of Permanent Impairment
Since it went public, Bioniche has failed to create value for its shareholders. In fact, value has been destroyed. And now the same leadership team that has failed over an extended period to provide any value to shareholders, is poised to permanently impair Bioniche with the sale of the sole asset of the Company that provides almost all of the Company's revenues and cash flow. The need for an immediate special meeting of shareholders is imperative given the announced intention of the Bioniche board and management to sell the animal health business.
The Concerned Shareholders oppose Bioniche's high-risk plan to use the proceeds from the sale of the animal health business to develop Urocidin™, a cancer drug with a troubled development history that is still years away from producing any meaningful revenues - if in fact it ever does. Based on Bioniche's public statements, it appears clear that shareholders will receive none of the sale proceeds.
The Concerned Shareholders of Bioniche, William (Bill) M. Wells and Greg Gubitz, have commenced legal action, requesting an Ontario court to validate Mr. Wells' requisition of a shareholders' meeting and to compel the Bioniche board to call such a special meeting of shareholders in accordance with the Board's statutory duties and fiduciary responsibilities. Bioniche's board acted improperly by failing to call a special meeting, denying our fundamental rights as shareholders. We have secured a court date in mid July.
Given the Bioniche board's obstructionist and delay tactics, and given the urgency of the future of Bioniche, we have also taken the additional step of calling a Special Meeting of Shareholders for August 27, 2013. Bioniche's shareholders must have the opportunity to evaluate and vote on all available options for the company before the monumental mistake proposed by the current board and management becomes irreversible. The future of the Company and your investment is at stake.
We need shareholder support. Only the voice of all Bioniche shareholders will force change. Please visit www.savebioniche.com to learn more and join the Concerned Shareholder Campaign for A Better Future for Bioniche.
The Pressing Issue Facing Shareholders: More Value Destruction or a Better Plan Overseen by Credible Directors and an Experienced Management Team
Recent announcements from Bioniche and its President and CEO Graeme McRae have been designed to confuse shareholders, create apprehension about our intentions and blacken our reputations through artful omissions and misrepresentations. This is consistent with the long-term approach Mr. McCrae and his board have employed - years of poor strategy, bad deals, missed targets and a 96% decline in the stock price. Unfortunately, other than the long overdue announcement by Mr. McCrae that he will consider relinquishing his role as CEO (although he still intends to be Chairman), every other recently announced action is more likely to destroy rather than create value for shareholders. The Concerned Shareholders set the record straight at www.savebioniche.com. Shareholders are faced with a simple choice:
Allow the current board and CEO who have overseen long-term value destruction the opportunity to finish the job by selling off the animal health business
Vote for new, credible directors who (together with an experienced management team) will oversee a value creation plan that will see Bioniche retain and grow the animal health business
The Entrenched Board's Plan - Sell Animal Health, Pursue the Development of Urocidin™, Continue to Burn Cash and Otherwise Hope for The Best
Bioniche's current board and management intend to sell the animal health business and use the proceeds to develop Urocidin™ (and presumably Econiche™, the vaccine for E Coli 0157 in cattle). This strategy would be fatal for Bioniche shareholders value for the following reasons:
- Successful development and approval of Urocidin™ are still uncertain and, at best, are many years away due to the need for a costly second phase III trial;
- Following the sale of animal health, the company will have no revenues and cash flows, but it will still have significant and ongoing expenses;
- Meaningful revenues from Urocidin™ are still years away under even the best case scenario and further capital raises will be necessary;
- Econiche™ was approved in Canada years ago and has yet to generate any sales.
Perhaps most damaging for shareholders, this strategy would be overseen by the existing board with Mr. McCrae as Chairman and quite possibly as CEO. This team has a long history of failure, a proven inability to develop and implement a viable strategy for the business, and has overseen the destruction of substantially all of Bioniche's shareholder value to date.
This strategy is very high risk. The probability of any payoff is small or return to shareholders is extremely low and, in the most optimistic case, far away. The probability of minimal or no returns to shareholders is high. Shareholders should expect and demand better odds of success from their company than they would receive by purchasing a lottery ticket.
The existing board and management team has not earned your trust and does not deserve your continued support.
The Concerned Bioniche Shareholders' Value Creation Plan: Retain and Grow Animal Health
The Concerned Shareholders' nominees for the Bioniche board intend to retain the animal health business:
- The Animal Health business will be developed and scaled, both organically and through acquisitions or other strategic partnerships and in-licensing opportunities;
- Animal Health represents a large and growing market;
- It is a market with positive fundamentals and strong resilience to economic downturn;
- Companion animal population and average spend on pet health and well being continues to grow;
- There is a trend to more expensive and aggressive treatment;
- Production animal sector is also growing with attractive niche opportunities;
- Animal Health is an attractive investment area, and capital may be raised to allow restructuring of the company and for accretive acquisitions;
- Econiche™ and Urocidin™ will be partnered or sold to produce the maximum return possible, but will no longer be a focus of the company (and no longer a drain on the cash resources of the company);
- Neither product fit Bioniche from a financial, risk or strategic perspective;
- The risk of getting these products approved and to market is high, the cost is prohibitive for Bioniche and the timeline to revenue is highly uncertain;
- Bioniche will become a great Canadian life sciences company focused on animal health.
The Concerned Shareholder value-creation strategy is low to medium risk. The primary risk is the availability of animal health products to license or acquire at an acceptable price - a risk which we believe is substantially diminished by the decades of experience of the proposed new board and management team in executing and overseeing precisely what will be required to create shareholder value at Bioniche. We believe the probability of high returns to shareholders is good. More details regarding the Concerned Shareholder Value-Creation Plan can be found at www.savebioniche.com.
With the support of shareholders, the newly constituted Board will oversee the execution of the value creation plan by a newly constituted management team:
- William (Bill) M. Wells, former Chief Executive Officer of Biovail Corporation would assume the position of Chief Executive Officer of Bioniche
- Greg Gubitz, former General Counsel and Senior Vice President of Corporate Development at Biovail Corporation would assume the position of Executive Vice President of Corporate Development
A Question of Credibility - Trust Those Who Have Done it Before to Deliver Again - And Don't Trust Those Who Have Destroyed the Value of Your Investment
At the heart of the decision facing shareholders is credibility. Shareholders must decide if they trust the incumbent board of directors, that has overseen spectacular value destruction, or the Concerned Shareholder director nominees, with their years of experience and track record of success to execute the proposed strategy properly. The Concerned Shareholders director nominees are included in this communication and further details can be found at www.savebioniche.com. Many of them worked together as part of the highly successful turnaround of Biovail Corporation - a situation similar to that experienced by Bioniche today:
- William (Bill) M. Wells - Mr. Wells served as Chief Executive Officer of Biovail Corporation ("Biovail") from May 2008 to September 2010. As Chief Executive Officer of Biovail, he led the turnaround of Canada's largest public pharmaceutical company and its subsequent merger of equals with Valeant Pharmaceuticals International, Inc. ("Valeant") in 2010 to create one of the world's leading specialty pharmaceutical companies. This transaction was recognized by Canadian Dealmakers in 2010 with the Canadian Healthcare Deal of the Year award. The development and execution of the turnaround strategy at Biovail under Mr. Wells' leadership increased enterprise value from $2 billion to $10 billion and led to Biovail shareholder returns of 276% in 30 months. Mr. Wells was previously Chief Financial Officer of Loblaw Companies Limited, Canada's largest supermarket chain, and Bunge Limited ("Bunge"), one of the world's leading commodity and food companies. Mr. Wells led Bunge's initial public offering after 173 years as a private company and its subsequent acquisition of Cereol S.A., which made Bunge a global leader in its industry. Mr. Wells is currently the founder and Chairman of Evizone Limited ("Evizone"), a pioneer in leading-edge technology for secure communications over the Internet. In 2006, he was recognized by Institutional Investor as one of the top chief financial officers in the United States.
Mr. Wells has extensive experience serving on both public and private company boards. Mr. Wells currently serves on the boards of EnerCare Inc., Acadia Pharmaceuticals Inc., Evizone, Myriant Corporation and Medgenesis Therapeutix Inc. and is a trustee and member of the finance committee of the Lakefield College School Foundation. Mr. Wells previously served on the boards of Biovail, Uruguay International VC Fund, Supplier Manager's Acceptance Corporation and Standard and Poor's Issuers Advisory Council.
Mr. Wells received a bachelor's degree in philosophy/english from the University of Western Ontario (1981) and a master's degree in international business from the University of South Carolina (1983).
- Greg Gubitz - Since 2010, Mr. Gubitz has been an independent advisor to companies, private equity firms and senior executives in the pharmaceutical and health care sector. Mr. Gubitz served at Biovail from 2006-2010 in various senior capacities, most recently as Senior Vice President, Corporate Development and General Counsel. At Biovail, Mr. Gubitz was responsible for mergers and acquisitions, product acquisitions and for worldwide legal operations, culminating in the highly successful merger with Valeant in 2010. From 1996-2006, Mr. Gubitz was employed at MDS Capital Corp., Canada's largest life science-focused venture capital firm with $1 billion under management, where he held various senior executive positions including Chief Operating Officer. Prior to MDS Capital, Mr. Gubitz was a partner at one of Canada's leading international law firms, where he represented numerous companies in a variety of public and private financings, mergers and acquisitions and other business transactions.
Mr. Gubitz currently serves on the boards of biOasis Technologies and Big Life Foundation Canada. Mr. Gubitz previously served on the boards of Drug Royalty Corp. and Imperial Plastech Inc.
Mr. Gubitz attended McGill University where he received a bachelor of arts degree (1979) and a bachelor of laws degree (1982). Mr. Gubitz was called to the Ontario Bar in 1984.
- Serge Gouin - From 2005-2013 Mr. Gouin was the Chairman of Quebecor Media Inc., a communications and media-cable and entertainment company, and from 2011-2013 he was the Chairman of TVA Group, Inc. (a subsidiary of Quebecor Media Inc.). From 2004-2005, Mr. Gouin served as the president and chief executive officer of Quebecor Media Inc. He is also the former Advisory Director of Citigroup Global Markets Canada Inc. (1998-2003) and President and Chief Operating Officer of Le Groupe Vidéotron Ltée. (2001-2006).
Mr. Gouin currently serves as a member on the boards of Onex Corporation, The Gates Corporation and Anges Québec Capital. Mr. Gouin also previously served on the boards of, among others, Biovail, Astral Media Inc., Cossette Communications Inc. and Savin Corporation. He also serves on the Advisory Committee of the Richard Ivey School of Business.
Mr. Gouin graduated from the University of Western Ontario (master of business administration in 1966) and bachelor of arts (honours business administration) in 1965) and from the University of Montreal (bachelor of arts in 1963).
- J. Spencer Lanthier - Mr. Lanthier, CM, FCA, LL.D, is a chartered accountant and has been a professional corporate director since 2000. Mr. Lanthier retired as a partner at KPMG Canada in 1999. From 1993-1999 he was Chairman and Chief Executive of KPMG Canada and a member of the KPMG International Executive Committee. Mr. Lanthier was appointed as a Member of the Order of Canada in 1999. He received an Honorary Doctor of Laws Degree from the University of Toronto in 2002.
Mr. Lanthier currently serves as the Chairman of the Board of Ellis-Don Inc. Mr. Lanthier has served on numerous boards including The Bank of Canada, Biovail, Gerdau Ameristeel Inc., TMX Group Inc., Zarlink Semiconductor Inc., Canada Life Insurance Co., Visible Genetics Inc., Intertape Polymer Inc., Ventra Group, Torstar Corporation, Bruce Power LP and RONA Inc.
- Anthony Macci - Mr. Macci has extensive experience in manufacturing and supply chain management relating to the pharmaceutical, biotechnology and life science industry. He is currently the Senior Vice President, Global Operations at Capsugel, a global leader in innovative dosage forms and solutions for the healthcare industry. From 2011-2012, he held the position of Vice President, Quality and Strategic Supplier Management at Caris Life Sciences, a leader in diagnostic, prognostic and theranostic medicine. From 2010-2012, Mr. Macci also acted as a consultant to companies in the pharmaceutical, biotechnology and life science industry providing strategic, executive, and operational consulting in manufacturing, supply chain, quality management, strategic procurement, and business development. From 2008-2010, Mr. Macci was the Senior Vice President, Global Operations for Phibro Animal Health Corporation, a global manufacturer of pharmaceuticals, vaccines and nutritional products. From 1987-2008, Mr. Macci was employed by Schering-Plough Corporation, a United States-based pharmaceutical company which has since merged with Merck & Co. During this time he held a variety of positions in support of the human pharmaceutical and animal health businesses, including Vice President, Divestiture Businesses and Head of Americas and Pacific Regions and Vice President, Global Supply Chain.
Mr. Macci received a bachelor of science in pharmacy from Duquesne University in 1982 and a masters in business administration from Iona College in 1996. He is a registered pharmacist in New York and Pennsylvania.
- Dr. Rochelle K. Seide - Dr. Rochelle Seide, Ph.D., J.D., is a highly experienced senior life sciences and intellectual property attorney. Dr. Seide is currently a member of the Development and Advisory Board (Business Affairs and Intellectual Property) of Larasan Pharmaceutical Corporation (since 2013) and a life sciences and intellectual property consultant (since 2011). In 2012, Dr. Seide was Vice President, Intellectual Property and Business Affairs of Sancilio & Company, Inc. From 2009-2011, Dr. Seide served as the Vice President, Intellectual Property, of Biovail Laboratories International SRL and, following the merger of equals between Biovail and Valeant, Valeant International (Barbados) SRL. As head of Biovail's Intellectual Property Group, Dr. Seide's activities included responsibility for exploiting, leveraging and defending Biovail's significant patent portfolio. Dr. Seide has over 25 years of experience as a patent attorney, with the majority of it focused in the life sciences industry, including (i) as Senior Counsel at Schwegman, Lundberg & Woessner from 2007 to 2009, (ii) as Partner in the New York office of Arent Fox, LLP, where she practiced in the Intellectual Property and Life Sciences groups, and (iii) as Partner and co-head of the Biotechnology Practice of Baker Botts, LLP.
Dr. Seide currently serves on the board of directors of Evizone (Barbados) Ltd. and the University of Akron School of Law Advancement Leadership Council. She also serves on the Advisory Editorial Board of Bloomberg BNA's Life Sciences Law & Industry Report. Dr. Seide was previously a member of the board of the National Inventors Hall of Fame.
Dr. Seide received her B.S. in Bacteriology and Botany from Syracuse University (1968), her M.S. in Biology/Immunology from Long Island University (1974) and her Ph.D. in Human Genetics from Mt. Sinai School of Medicine of the City University of New York (1977). Dr. Seide was an instructor and assistant professor of Medical Genetics and Microbiology at the Northeastern Ohio Universities College of Medicine from 1977 to 1985. During that time, she attended The University of Akron School of Law and received her Juris Doctor degree in 1984.
- Hugo Wahnish - Mr. Wahnish served as Chief Commercial Officer at Merck Animal Health until retiring at the end of 2012. He joined Merck (formerly Schering-Plough) in 1994 and held numerous executive positions including in the business development, strategic marketing and finance functions. He was the Vice President of Europe, Asia-Pacific and Latin America and the Senior Vice President of Worldwide Operations. Through aggressive internal strategies and several mergers and acquisitions Mr. Wahnish led the Company to become the second biggest animal health division in the world.
Mr. Wahnish previously worked at Glaxo-SmithKline in the pharmaceutical arena, as well as in animal health. His last role in 1994 was Vice President, Animal Health. Prior to that, he led the Latin America Region, was General Manager of Brazil and Global Operations Director in Argentina.
Mr. Wahnish has more than 30 years of experience in the pharmaceutical and animal health industries with an excellent track record of delivering outstanding results.
Mr. Wahnish attended the University of Buenos Aires and received a Master in Business Administration. He is also a Certified Public Accountant.
Join the Concerned Shareholder Campaign for A Better Future for Bioniche at www.savebioniche.com
Further information regarding past value destruction at Bioniche and the incumbent board's plans to double down on a failed strategy can be found at www.savebioniche.com. Register your support for the Concerned Shareholders on the site or contact CST Phoenix Advisors, information agent and proxy solicitation agent for the Concerned Shareholders, at 1-800-761-6578 or [email protected].
The website also contains important details regarding the Concerned Shareholders' value creation plan and past successes. There is also a section where we set the record straight about some of the allegations and misinformation that the Bioniche board and management have said about us. Simply put, it is unfortunate that Mr. McRae has chosen to attack the Concerned Shareholders personally, but we are confident that shareholders will see the flailing rhetoric for what it is. Long serving boards and CEO's should be able to stand on their track record, not attempt to entrench themselves, hide behind lawyers (using shareholders' money) and offer the possible resignation of a CEO who is at the heart of the protracted failure to protect and enhance shareholder value at Bioniche.
We respectfully urge shareholders to compare the two plans for the future of your company and the respective track records of the two slates of directors and then decide who is best positioned to turn Bioniche around and deliver value to shareholders. Please register your support for the Concerned Shareholders at www.savebioniche.com today!
Thank you for your careful consideration and support in this matter.
The Concerned Shareholders of Bioniche
William (Bill) M. Wells,
Information in Support of Public Broadcast Solicitation
William (Bill) M. Wells and Greg Gubitz (the "Concerned Shareholders") are relying on the exemptions under section 150(1.2) of the CBCA and section 9.2(4) of National Instrument 51-102 - Continuous Disclosure Obligations of the Canadian Securities Administrators to make this public broadcast solicitation. The following information is provided in accordance with corporate and securities laws applicable to public broadcast solicitations.
This solicitation is being made by the Concerned Shareholders, and not by or on behalf of the management of Bioniche Life Sciences Inc. ("Bioniche").
Bioniche's address is 231 Dundas Street East, Belleville, Ontario, K8N 1E2.
The Concerned Shareholders have filed an information circular containing the information required by the CBCA and Form 51-102F5 - Information Circular of the Canadian Securities Administrators in respect of its proposed nominees. Such circular is available under Bioniche's company profile on SEDAR at www.sedar.com.
All costs incurred for the solicitation will be borne by the Concerned Shareholders, subject to reimbursement by Bioniche in accordance with the provisions of the CBCA.
To the knowledge of the Concerned Shareholders, none of the proposed nominees as directors, or their respective associates or affiliates, had or has any material interest, direct or indirect, in (i) any transaction since the beginning of Bioniche's most recently completed financial year; or (ii) in any proposed transaction which has materially affected or would materially affect Bioniche or any of its subsidiaries.
As no matters other than the election of directors are currently contemplated to be acted upon at the called meeting of Bioniche shareholders, none of the Concerned Shareholders or their respective associates or affiliates has any material interest, direct or indirect, by way of beneficial ownership of securities or otherwise, in any matter to be acted upon at the meeting of Bioniche shareholders other than the election of directors.
Information Regarding Bioniche
The information herein concerning Bioniche has been taken from or is based upon publicly available documents or records of Bioniche on file with Canadian securities regulatory authorities.
Forward Looking Information
Certain statements contained herein are "forward-looking statements". Often, but not always, forward-looking statements can be identified by the use of words such as "plans", "expects", "expected", "scheduled", "estimates", "intends", "anticipates", or "believes", or variations of such words and phrases, or state that certain actions, events or results "may", "could", "would", "might" or "will" be taken, occur or be achieved. The Concerned Shareholders cannot give any assurance that such forward-looking statements will prove to have been correct. The reader is cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this document.
SOURCE: William (Bill) M. Wells and Greg Gubitz
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