SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
NORTH AMERICAN VACCINE, INC.
(Name of Issuer)
COMMON STOCK, NO PAR VALUE
(Title of Class of Securities)
657201109
(Cusip Number)
Steven D. Rubin
Stearns Weaver Miller Weissler
Alahadeff & Sitterson, P.A.
150 West Flagler
Miami, Florida 33130
(305) 789-3200
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
NOVEMBER 12, 1998
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of the Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following page(s))
<PAGE>
CUSIP NO. 657201109 13D PAGE 2
1 NAME OF REPORTING
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
PHILLIP FROST, M.D.
2 Check the appropriate Box if a Member of a Group (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
NUMBER OF 7 SOLE VOTING POWER
SHARES BENEFI- 0
CIALLY 8 SHARED VOTING POWER
OWNED BY 6,342,899
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON WITH 10 SHARED DISPOSITIVE POWER
6,342,899
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,342,899
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.23 %
14 TYPE OF REPORTING PERSON
IN
<PAGE>
CUSIP NO. 657201109 13D PAGE 3
1 NAME OF REPORTING
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
FROST-NEVADA, LIMITED PARTNERSHIP
IRS I.D. #59-2749083
2 Check the appropriate Box if a Member of a Group (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
NOT APPLICABLE
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEVADA
NUMBER OF 7 SOLE VOTING POWER
SHARES BENEFI- 0
CIALLY 8 SHARED VOTING POWER
OWNED BY 6,342,899
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON WITH 10 SHARED DISPOSITIVE POWER
6,342,899
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,342,899
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.23 %
14 TYPE OF REPORTING PERSON
PN
<PAGE>
CUSIP NO. 657201109 13D PAGE 4
1 NAME OF REPORTING
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
FROST-NEVADA CORPORATION
IRS I.D. #59-2749057
2 Check the appropriate Box if a Member of a Group (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
NOT APPLICABLE
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEVADA
NUMBER OF 7 SOLE VOTING POWER
SHARES BENEFI- 0
CIALLY 8 SHARED VOTING POWER
OWNED BY 6,342,899
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON WITH 10 SHARED DISPOSITIVE POWER
6,342,899
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,342,899
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.23%
14 TYPE OF REPORTING PERSON
CO
<PAGE>
AMENDMENT NO. 2 TO SCHEDULE 13D
This Amendment No. 2 to Schedule 13D is filed on behalf of Phillip
Frost, M.D., Frost-Nevada, Limited Partnership, a Nevada limited partnership
(the "Partnership"), and Frost-Nevada Corporation, a Nevada corporation
(collectively, the "Reporting Persons"). On July 20, 1991, Dr. Frost, the
Partnership and IVAX Corporation, a Florida corporation ("IVAX"), jointly filed
a Schedule 13D. On November 8, 1995, the Reporting Persons and IVAX filed an
amendment to that statement. This Amendment No. 2 to Schedule 13D amends and
updates the above-referenced statements on Schedule 13D previously filed with
respect to the Common Stock, no par value (the "Shares"), of North American
Vaccine, Inc. (the "Issuer").
ITEM 1. SECURITY AND ISSUER
The class of securities to which this statement relates is the
Shares of the Issuer. The principal executive office of the Issuer is located at
12103 Indian Creek Court, Beltsville, Maryland 20705.
ITEM 2. IDENTITY AND BACKGROUND
This Schedule 13D is being filed by the Reporting Persons.
Information regarding each of the Reporting Persons is set forth below.
Dr. Frost's present principal occupation is as Chairman of the
Board of Directors and Chief Executive Officer of IVAX, which through its
subsidiaries is engaged primarily in the research, development, manufacturing,
marketing and distribution of health care products. Dr. Frost's principal
business address is 4400 Biscayne Boulevard, Miami, Florida 33137.
The Partnership is a limited partnership organized and existing
under the laws of the State of Nevada with its principal office and business
address located at 3500 Lakeside Court, Suite 200, Reno, Nevada 89509. The
principal business of the Partnership is the investment in marketable
securities, precious metals and commodities and real estate located in Nevada.
Frost-Nevada Corporation is the sole general partner, and Dr. Frost is the sole
limited partner, of the Partnership.
Frost-Nevada Corporation is a corporation organized and existing
under the laws of the State of Nevada with its principal office and business
address located at 3500 Lakeside Court, Suite 200, Reno, Nevada 89509. The
principal business of Frost-Nevada Corporation is acting as the general partner
of the Partnership. Dr. Frost is the sole shareholder. David H. Moskowitz is the
sole director and the sole officer of Frost-Nevada Corporation. David H.
Moskowitz's present principal occupation is as an attorney with the law firm of
David H. Moskowitz & Associates. Mr. Moskowitz's principal business address is
1890 Rose Cottage Lane, Malvern, Pennsylvania, 19355.
To the best knowledge of each of the Reporting Persons, neither
such Reporting Person nor Mr. Moskowitz has been convicted in any criminal
proceeding (excluding traffic violations and similar misdemeanors), or was a
party to any civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was subject to a judgment,
decree or final order enjoining future violations of, or prohibiting activity
subject to, federal or state securities laws or finding any violation with
respect to such laws during the last five years. Dr. Frost and Mr. Moskowitz are
citizens of the United States of America.
5
<PAGE>
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
On November 12, 1998, Dr. Frost purchased from the Issuer an
aggregate principal amount of $4,250,000 of the Issuer's 4.5% Convertible
Secured Notes due 2003 (the "Notes"). The Notes are convertible, pursuant to
their terms at any time into Shares at a conversion price of approximately $8.54
per share. Dr. Frost's personal funds were the source of funds for the purchase
of the Notes. No portion of the consideration for the purchase of the Notes was
borrowed or otherwise obtained for the purpose of acquiring, holding, trading or
voting the Shares which underlie the Notes.
ITEM 4. PURPOSE OF TRANSACTION
The Reporting Persons intend to maintain their interests in the
securities of the Issuer (including the Notes) as an investment. The Reporting
Persons may acquire additional Shares or other securities of the Issuer (subject
to availability of such securities at prices deemed favorable) in the open
market, in privately negotiated transactions, by tender offer or otherwise.
Alternatively, the Reporting Persons reserve the right to dispose of some or all
of their Shares (including any Shares obtained upon conversion of the Notes) in
the open market or in privately negotiated transactions or otherwise depending
upon the courses of action that the Reporting Persons or the Issuer pursue,
market conditions and other factors. Although the foregoing represents the range
of activities presently contemplated by the Reporting Persons with respect to
the Shares, it should be noted that possible activities of the Reporting Persons
are subject to change at any time.
Except as otherwise stated herein, no Reporting Person has any
present plans or proposals which relate to or would result in any actions
described in subparagraphs (a) through (j) of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
As of the date of this Amendment No. 2, the Reporting Persons
filing this Schedule 13D beneficially owned the following Shares:
<TABLE>
<CAPTION>
AMOUNT OF SHARES
NAME BENEFICIALLY OWNED PERCENTAGE OF CLASS(1)
---- ------------------ ------------------------
<S> <C> <C>
Phillip Frost, M.D. 6,342,899 (2) 18.23%
The Partnership 6,342,899 (2) 18.23%
Frost-Nevada Corporation 6,342,899 (2) 18.23%
</TABLE>
(1) Based on 32,208,351 Shares outstanding as of November 4, 1998 as
reported in the Issuer's Quarterly Report on Form 10-Q for its fiscal
quarter ended September 30, 1998 and assuming (i) for the purpose of
determining the beneficial ownership, the conversion by the Partnership
of 1,000,000 shares of Class A Preferred Stock into 2,000,000 Shares;
(ii) the conversion by Dr. Frost of the Notes into 497,623 Shares; (iii)
the exercise by Dr. Frost of options to purchase of 79,999 Shares which
are either currently exercisable or exercisable in the next sixty (60)
days; and (iv) the conversion of no other securities or the exercise of
no other options of the Issuer.
6
<PAGE>
(2) These Shares are owned of record by one or more of such Reporting
Persons. As the sole limited partner of the Partnership and the sole
shareholder of Frost-Nevada Corporation, the general partner of the
Partnership, Dr. Frost may be deemed a beneficial owner of the Shares.
Record ownership of the Shares may be transferred from time to time
among any or all of Dr. Frost, the Partnership and Frost-Nevada
Corporation. Accordingly, solely for purposes of reporting beneficial
ownership of the Shares pursuant to Section 13(d) under the Securities
Exchange Act of 1934, as amended, each of Dr. Frost, the Partnership and
Frost-Nevada Corporation will be deemed to be the beneficial owner of
Shares held by any of them. As of the date of this Amendment No. 2, the
Partnership is the record owner of 1,767,859 Shares and 1,000,000 shares
of Class A Preferred Stock which are convertible into 2,000,000 Shares.
In addition, Dr. Frost is the record owner of (i) 1,997,418 Shares, (ii)
options to purchase of 79,999 Shares which are either presently
exercisable or exercisable in the next sixty (60) days and (iii) the
Notes which are convertible into 497,623 Shares.
Except as described herein, none of the Reporting Persons has
engaged in any transaction involving Shares of the Issuer during the last sixty
(60) days.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The Partnership, Dr. Frost and IVAX, (collectively, the "Frost
Group") entered into a Shareholders' Agreement dated January 17, 1990 with IAF
BioChem International, Inc., a publicly owned Canadian pharmaceutical company
("BioChem"). Pursuant to this Shareholders' Agreement, each of the Frost Group
and BioChem has agreed to nominate an equal number of directors for election to
the Issuer's Board of Directors with the nominees in turn selecting one
additional nominee satisfactory to all of the nominees. Pursuant to the
Shareholders' Agreement, the Frost Group and BioChem have agreed to vote all of
their respective Shares of the Issuer to elect to the Issuer's Board of
Directors the nominees so selected.
The Shareholders' Agreement also grants the Frost Group and
BioChem mutual rights of first refusal with respect to the sale, transfer or
other similar disposition of any Shares, Series A Preferred Stock or other
securities of the Issuer held directly or indirectly by either of them. Such
rights of first refusal will not apply, however, to transfer of such securities
by the Frost Group or BioChem to their respective affiliates.
The Shareholders' Agreement will terminate on February 28, 2000,
or at such earlier date as the Frost Group and BioChem otherwise agree or the
Issuer ceases to carry on business or is adjudicated bankrupt. In addition, in
the event either BioChem or the Frost Group sells an aggregate of 50% or more of
the Shares, Series A Preferred Stock and other Issuer securities owned by it,
the selling party will lose its rights of first refusal and the provisions
regarding the nomination and approval of nominees to the Issuer's Board of
Directors will lapse.
The Partnership, the Frost-Nevada Corporation, Dr. Frost and IVAX
disclaim the existence of a group between themselves and BioChem.
As of the date of this Amendment No. 2 to Schedule 13D, Dr. Frost
owns options to purchase 100,000 Shares, 79,999 of which are currently
exercisable or exercisable within the next sixty (60) days. Since January 1,
1992, the Issuer has granted to Dr. Frost, options to purchase 110,000
7
<PAGE>
Shares at exercise prices that range from $11.75 to $15.095 (Canadian) per
share. Such options were granted by the Issuer pursuant to the North American
Vaccine, Inc. Stock Option Agreements Governed by the Non-Employee Director and
Senior Executive Stock Option Plan, substantially in the form attached as
Exhibit 6 and are subject to the terms set forth in the Non-Employee Director
and Senior Executive Stock Option Plan.
The Issuer has also granted to Dr. Frost options to purchase an
additional 60,000 Shares pursuant to the North American Vaccine, Inc. Stock
Option Agreements Governed by the 1995 Non-Employee Director and Senior
Executive Stock Option Plan, substantially in the form attached as Exhibit 7 at
exercises prices that range from $14.125 to $24.9375 (American) per share. Such
options are subject to the terms set forth in the North American Vaccine, Inc.
1995 Non-Employee Director and Senior Executive Stock Option Plan.
On September 24, 1997, the Issuer announced that it had reached
an agreement in principle to raise $25 million through a private placement of
five-year, secured convertible debentures, having a 4.5% coupon rate. The Issuer
also announced that a portion of the debentures were to be sold to Dr. Frost.
On November 11, 1998, Dr. Frost executed a Subscription Agreement
(the "Subscription Agreement") agreeing to purchase from the Issuer up to
$4,250,000 in aggregate principal amount of the Issuer's Notes at a price equal
to 100% of the principal amount thereof, subject to the Issuer's acceptance of
the Subscription Agreement and any reduction in the amount subscribed to by Dr.
Frost as determined by the Issuer.
On November 12, 1998, the Issuer sent Dr. Frost a letter
accepting Dr. Frost's subscription for $4,250,000 in aggregate principal amount
of Notes and requesting payment of the purchase price (the "Acceptance Letter").
The purchase price for the Notes was paid by Dr. Frost and
$4,250,000 of Notes were sent by the Issuer to Dr. Frost on November 12, 1998.
The Notes were issued pursuant to an Indenture, dated November
12, 1998, between the Issuer and Bankers Trust Company, as Trustee. The Notes
are convertible at any time into Shares at a conversion price of approximately
$8.54 per share. The Notes are secured by certain assets of the Issuer,
otherwise subordinated in right of payment to all existing and future senior or
other indebtedness of the Issuer and are redeemable by the Issuer in whole or in
part, at the option of the Issuer at any time after November 13, 1999, at a
purchase price equal to 100% of the outstanding principal amount, plus accrued
interest. Additionally, upon a change of control of the Issuer, the Issuer will
be required to offer to purchase all of the Notes then outstanding at a purchase
price equal to 100% of the principal amount thereof, plus accrued interest.
The description of the above referenced agreements contained
herein are not intended to be complete and are qualified in their entirety by
reference to such agreements which are attached hereto as Exhibits 3 through 10
and incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
1. The Joint Filing Agreement, dated November 25, 1998, by and
among Phillip Frost, M.D., the Partnership and Frost-Nevada
Corporation.
2. Power of Attorney, dated June 1, 1998, granted to Phillip Frost,
M.D. by David H. Moskowitz.
3. Shareholders' Agreement, dated January 17, 1990, among BioChem,
Phillip Frost, M.D., IVAX Corporation and the Partnership
(incorporated by reference to Exhibit 9.1 of the Issuer's 10-K
for the fiscal year ended December 31, 1997, filed on March 25,
1998).
8
<PAGE>
4. Non-Employee Director and Senior Executive Stock Option Plan, as
amended (incorporated by reference to Exhibit 10.18 of the
Issuer's 10-K for the fiscal year ended December 31, 1997, filed
on March 25, 1998).
5. North American Vaccine, Inc. 1995 Non-Employee Director and
Senior Executive Stock Option Plan (incorporated by reference to
Exhibit 10.26 of the Issuer's 10-K for the fiscal year ended
December 31, 1997, filed on March 25, 1998).
6. Form of North American Vaccine, Inc. Stock Option Agreement
Governed by the Non-Employee Director and Senior Executive
Stock Option Plan by and between Phillip Frost, M.D. and the
Issuer.
7. Form of North American Vaccine, Inc. Stock Option Agreement
Governed by the 1995 Non-Employee Director and Senior Executive
Stock Option Plan by and between Phillip Frost, M.D. and the
Issuer.
8. The Subscription Agreement, dated November 11, 1998, by and
between the Issuer and Phillip Frost, M.D.
9. The Acceptance Letter from the Issuer to Phillip Frost, M.D.,
dated November 12, 1998.
10. The Indenture, dated November 12, 1998, by and between the Issuer
and the Trustee (incorporated by reference to Exhibit 99.1 of the
Issuer's 8-K dated November 12, 1998 and filed on November 20,
1998).
11. Certificate evidencing $4,250,000 in aggregate principal amount
of the Notes, dated November 12, 1998, issued to Phillip Frost,
M.D. by the Issuer.
9
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, the undersigned certify that the information set forth in this
Amendment No. 2 to Schedule 13D is true, complete and correct.
<TABLE>
<S> <C>
Date: November 25, 1998 /S/ PHILLIP FROST, M.D.
----------------------------
Phillip Frost, M.D.
FROST-NEVADA, LIMITED PARTNERSHIP
Date: November 25, 1998 By: *
--------------------------------------------
David H. Moskowitz, President of Frost-
Nevada Corporation, General Partner
FROST-NEVADA CORPORATION
Date: November 25, 1998 By: *
--------------------------------------------
David H. Moskowitz, President, Director
*By: /S/ PHILLIP FROST, M.D.
-----------------------------
Phillip Frost, M.D.
(Attorney-in-fact pursuant
to Power of Attorney)
</TABLE>
10
<PAGE>
EXHIBIT INDEX
1. The Joint Filing Agreement, dated November 25, 1998, by and
among Phillip Frost, M.D., the Partnership and Frost-Nevada
Corporation.
2. Power of Attorney, dated June 1, 1998, granted to Phillip Frost,
M.D. by David H. Moskowitz.
6. Form of North American Vaccine, Inc. Stock Option Agreement
Governed by the Non-Employee Director and Senior Executive
Stock Option Plan by and between Phillip Frost, M.D. and the
Issuer.
7. Form of North American Vaccine, Inc. Stock Option Agreement
Governed by the 1995 Non-Employee Director and Senior Executive
Stock Option Plan by and between Phillip Frost, M.D. and the
Issuer.
8. The Subscription Agreement, dated November 11, 1998, by and
between the Issuer and Phillip Frost, M.D.
9. The Acceptance Letter from the Issuer to Phillip Frost, M.D.,
dated November 12, 1998.
11. Certificate evidencing $4,250,000 in aggregate principal amount
of the Notes, dated November 12, 1998, issued to Phillip Frost,
M.D. by the Issuer.
EXHIBIT 1
AGREEMENT
The undersigned hereby agree that this Amendment No. 2 to Schedule 13D
filed by us with respect to the Common Stock, no par value, of North American
Vaccine, Inc. is filed on behalf of each of us.
Date: November 25, 1998 /S/ PHILLIP FROST, M.D.
---------------------------------------------
Phillip Frost, M.D.
FROST-NEVADA, LIMITED PARTNERSHIP
Date: November 25, 1998 By: *
----------------------------------------
David H. Moskowitz, President of Frost-
Nevada Corporation, General Partner
FROST-NEVADA CORPORATION
Date: November 25, 1998 By: *
----------------------------------------
David H. Moskowitz, President
*By: /S/ PHILLIP FROST, M.D.
-----------------------------
Phillip Frost, M.D.
(Attorney-in-fact pursuant
to Power of Attorney)
EXHIBIT 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his capacity as
President of Frost-Nevada Corporation, a Nevada corporation (the "Corporation"),
does hereby make, constitute and appoint PHILLIP FROST, M.D. his true and lawful
attorney-in-fact, for him and in his name, place and stead, for the sole and
limited purpose of signing any and all statements or reports pursuant to the
Securities Exchange Act of 1934, and any amendments thereto, on behalf of the
Corporation, 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 as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 1st day of June, 1998.
/S/ DAVID H. MOSKOWITZ
-----------------------------
David H. Moskowitz, President
EXHIBIT 6
[FORM OF]
NORTH AMERICAN VACCINE, INC.
STOCK OPTION AGREEMENT
GOVERNED BY THE NON-EMPLOYEE
DIRECTOR AND SENIOR EXECUTIVE
STOCK OPTION PLAN
This STOCK OPTION AGREEMENT ("Agreement") is made as of this 1st day of
January, 1994, between North American Vaccine, Inc., a Canadian corporation (the
"Company"), and Phillip Frost (the "Optionee").
1. NATURE OF OPTION
This Stock Option (the "Option") is NOT intended to qualify as an
incentive stock option as defined in Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), and shall be construed as a non-qualified stock
option.
2. GRANT OF OPTION
The Company hereby irrevocably grants to the Optionee an Option to
purchase all or any part of an aggregate of _________ common shares, no par
value, of the Company (the "Common Share") (such number being subject to
adjustment as provided in Section 15 of this Agreement), on the terms and
conditions set forth in this Agreement and in the Non-Employee Director and
Senior Executive Stock Option Plan (the "Plan"), adopted by the Company, which
is incorporated herein by reference. The terms used in this Agreement shall have
the same definitions set forth in the Plan.
3. EXERCISE PRICE
The exercise price shall be $________ (Canadian) for each Common Share,
which price is no less than the fair market value per Common Share on the date
of grant.
<PAGE>
4. DURATION OF OPTION
This Option may not be exercised after January 1, ____, and may be
exercised during such period only in accordance with the terms of the Plan and
this Agreement.
5. SCHEDULE OF EXERCISE OF OPTION
This Option shall be exercisable during the period set forth in Section
4, above, in accordance with the following schedule:
(a) _______ of the Common Shares optioned hereunder shall first
become exercisable on January 1, _____; and
(b) an additional ______ of the Common Shares optioned hereunder
shall first become exercisable on January 1, ______; and
(c) the remaining ______ of the Common Shares optioned hereunder
shall first become exercisable on January 1, _____.
Notwithstanding the foregoing, this Option may become immediately
exercisable upon a Change of Control as prescribed in Article VI of the Plan.
6. TERMINATION OF STATUS AS A NON-EMPLOYEE DIRECTOR
If Optionee ceases to serve as a Non-Employee Director of the Company,
he may, but only within three (3) months after the date he ceased to be a
Non-Employee Directors, exercise this Option to the extent that he was entitled
to exercise it at the date of such termination. To the extent that he was not
entitled to exercise this Option at the date of such termination, or if he does
not exercise this Option within the time specified herein, this Option shall
terminate.
-2-
<PAGE>
7. DISABILITY OF OPTIONEE
Notwithstanding the provisions of Section 6 above, if Optionee is
unable to continue to perform as a Non-Employee Director of the Company as a
result of his total and permanent disability (as defined in Section 22(e)(3) of
the Code), he may, but only within twelve (12) months from the date of
termination of employment, exercise his Option to the extent he was entitled to
exercise it at the date of such termination. To the extent that he was not
entitled to exercise this Option at the date of such termination, or if he does
not exercise this Option within the time specified herein, this Option shall
terminate.
8. DEATH OF OPTIONEE
In the event of the death of Optionee during the term of this Option
and while a Non-Employee Director of the Company, and having been in continuous
status as a Non-Employee Director since the date of grant of the Option, the
Option may be exercised, at any time within twelve (12) months following the
date of death, by Optionee's estate or by a person who acquired the right to
exercise the Option by bequest or inheritance, but only to the extent of the
right to exercise the Option on the date of death.
9. METHOD OF EXERCISE OF OPTION
The Option shall be exercised by delivery of a written notice to the
Company in the manner described in Section 19 of this Agreement. Such notice
shall be signed by the Optionee and shall state the election to exercise the
Option, the number of Common Shares in respect of which the Option is being
exercised, and such other representations and agreements as to the Optionee's
investment intent with respect to such Common Shares as may be required by the
Company. Full payment of the exercise price made by cash, check or if permitted
by the Compensation Committee,
-3-
<PAGE>
other Common Shares of the Company, or any combination of such methods, shall
accompany the notice. This Option may not be exercised for a fraction of a
Common Share.
10. LIMITATIONS ON EXERCISE OF OPTION
(a) No Common Shares shall be issued pursuant to the exercise of an
Option unless the exercise of such Option and the issuance and delivery of such
Common Shares shall comply with all relevant provisions of Canadian and United
States laws, including the Securities Act (Quebec), the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, the rules and
regulations promulgated under the Acts, and the requirements of any stock
exchange upon which the Common Shares may then be listed.
(b) As a condition to the exercise of the Option, the Company may
require the Optionee to represent and warrant at the time of such exercise that
the Common Shares purchased pursuant to the Option are being purchased only for
investment and without any present intention to sell or distribute such Common
Shares if, in the opinion of counsel for the Company, such a representation is
or may be required. Certificates representing Common Shares issued upon exercise
of this Option shall bear a restrictive legend prohibiting the transfer of such
Common Shares unless, in the opinion of such counsel, such transfer is not
inconsistent with any of the requirements of any applicable Canadian and United
States securities laws.
(c) Options granted under the Plan prior to the date on which
shareholders of the Company approve the Plan, as required by Article XIV of the
Plan, shall be conditioned upon shareholder approval of the Plan.
-4-
<PAGE>
11. ISSUANCE OF SHARE CERTIFICATES
Upon the payment of the exercise price and subject to all other
provisions of this Agreement and the Plan, the Company will issue, within thirty
(30) days from the date of the exercise of the Option (subject to the exceptions
noted in the Plan), certificates representing the Common Shares subject to the
Option. The Optionee thereupon shall have full dividend and voting rights with
respect to such Common Shares. Notwithstanding the exercise of any Option, the
Optionee shall have no rights as a shareholder, including the right to vote or
to receive dividends, until the issuance of share certificates by the Company,
and no adjustment will be made for a dividend or other right, except as provided
in the Plan, for which the record date is prior to the date of issuance of the
share certificates.
12. NON-TRANSFERABILITY
This Option shall not be transferable in any manner other than by will
or by laws of descent or distribution or as otherwise permitted under the Plan
and may be exercised during the lifetime of the Optionee only by the Optionee,
except as otherwise permitted under the Plan.
13. NO RIGHT TO CONTINUED EMPLOYMENT
This Option shall not confer upon the Optionee any right with respect
to continuance of employment or directorship by the Company or any of its Parent
or Subsidiary, nor shall it interfere in any way with the right of the
Optionee's employer to terminate the Optionee's employment or directorship at
any time.
14. NO OBLIGATION TO EXERCISE OPTION
The granting of this Option shall impose no obligation upon the
Optionee to exercise this Option.
-5-
<PAGE>
15. ADJUSTMENTS
In the event of any increase or decrease in the number of issued Common
Shares resulting from certain corporate transactions (i.e., a share split or
payment of share dividend with respect to the Common Shares or any other
increase or decrease in the number of issued Common Shares effected without
receipt of consideration by the Company), the number of Common Shares subject to
this Option and the exercise price per Common Share shall be proportionately
adjusted by the Board in such manner as provided by Article 10 of the Plan. An
adjustment so made shall be final, conclusive, and binding upon the Optionee.
16. OPTIONEE BOUND BY PLAN
The Optionee hereby acknowledges receipt of a copy of the Plan and
agrees to be bound by all the terms and provisions thereof.
17. SUCCESSORS IN INTEREST
This Agreement shall inure to the benefit of and be binding upon each
successor of the Company. All obligations imposed upon the Optionee and all
rights granted to the Company under this Agreement shall be binding upon the
Optionee's heirs, executors, administrators, and successors.
18. RESOLUTION OF DISPUTES
Any dispute or disagreement which may arise under, or as a result of,
or in any way relate to, the interpretation, construction, or application of
this Agreement shall be determined by the Compensation Committee and any such
determination made by the Compensation Committee shall be final, binding, and
conclusive for all purposes.
-6-
<PAGE>
19. NOTICES
Any notices, letters, offers, acceptances, or other communications
contemplated by this Agreement shall be in writing and shall be deemed duly
given when delivered by hand or mailed by certified or registered mail, first
class, postage prepaid and return receipt requested, addressed as follows:
(i) if to the Optionee: Phillip Frost, c/o IVAX Corporation,
8800 N.W. 36th Street, Miami, Florida 33178
(ii) if to the Company, North American Vaccine, Inc.
12103 Indian Creek Court, Beltsville, Maryland 20705
Attention: Senior Vice President, Legal Affairs;
or to such other addresses as the Optionee or the Company may have furnished in
writing to each other. The date of notice for all purposes under this Agreement
shall be the date of delivery of the notice.
20. APPLICABLE LAW
This Agreement shall be construed in accordance with, and governed by,
the laws of the province of Quebec and the laws of Canada applicable therein.
21. CONFLICT BETWEEN AGREEMENT AND PLAN
This Agreement shall be construed, to the maximum extent possible,
consistently with the terms of the Plan. The terms of the Plan shall control if
there are any conflicts between the terms of this Agreement and the Plan.
-7-
<PAGE>
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement as of the date set forth above.
NORTH AMERICAN VACCINE, INC.
By: /s/ DANIEL J. ABDUN-NABI
--------------------------------
Daniel J. Abdun-Nabi
Senior Vice President
Legal Affairs & General Counsel
/s/ PHILLIP FROST
--------------------------------
Phillip Frost
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EXHIBIT 7
[FORM OF]
NORTH AMERICAN VACCINE, INC.
STOCK OPTION AGREEMENT
GOVERNED BY THE 1995 NON-EMPLOYEE
DIRECTOR AND SENIOR EXECUTIVE
STOCK OPTION PLAN
This STOCK OPTION AGREEMENT ("Agreement") is made as of this 1st day of
January, _____, between North American Vaccine, Inc., a Canadian corporation
(the "Company"), and Phillip Frost ("Optionee").
1. NATURE OF OPTION
This Stock Option (the "Option") is NOT intended to qualify as an
incentive stock option as defined in Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), and shall be construed as a non-qualified stock
option.
2. GRANT OF OPTION
The Company hereby irrevocably grants to Optionee the Option to
purchase all or any part of an aggregate of _________ common shares, no par
value, of the Company (the "Common Shares") (such number being subject to
adjustment as provided in Section 15 of this Agreement), on the terms and
conditions set forth in this Agreement and in the Company's 1995 Non-Employee
Director and Senior Executive Stock Option Plan (the "Plan"), which is
incorporated herein by this reference. The terms used in this Agreement shall
have the same definitions set forth in the Plan, except as otherwise defined
herein.
3. EXERCISE PRICE
<PAGE>
The exercise price shall be U.S. $__________ for each Common Share,
which price is not less than the fair market value per Common Share on the date
of grant.
4. DURATION OF OPTION
The Option may not be exercised after, and shall expire as of 11:59
p.m., Washington, D.C. local time, on January 1, ______, and may be exercised
during such period only in accordance with the terms of the Plan and this
Agreement.
5. SCHEDULE OF EXERCISE OF OPTION
The Option shall be exercisable during the period set forth in Section
4 above, in accordance with the following schedule:
(a) _______ of the Common Shares optioned hereunder shall
first become exercisable on January 1, ___; and
(b) an additional _____ of the Common Shares optioned
hereunder shall first become exercisable on January
1, _____; and
(c) the remaining ____ of the Common Shares optioned
hereunder shall first become exercisable on January
1, _____.
Notwithstanding the foregoing, the exercisability of the Option may be
automatically accelerated immediately prior to the specified effective date or
the occurrence of any of the events listed in Section 6.3(a) of the Plan in
accordance with the terms of Section 6.3 of the Plan.
6. TERMINATION OF STATUS AS A NON-EMPLOYEE DIRECTOR
Upon Optionee's resignation or termination from the Company's Board of
Directors for any reason whatsoever (including, without limitation, death), the
Option shall be exercisable, to the extent Optionee was entitled to exercise the
Option as of the date of such resignation or termination,
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<PAGE>
at any time prior to the expiration date of the Option. To the extent that
Optionee was not entitled to exercise the Option as of the date of such
resignation or termination, or if Optionee does not exercise the Option (to the
extent he or she was entitled to exercise the Option) at any time prior to the
Option's expiration date, the Option shall terminate and become null and void,
such that the number of shares exercisable under the Option shall not be
increased by the virtue of the passage of time. Notwithstanding the foregoing
provisions of this Article 6, if Optionee is terminated or removed by the
Company for willful or gross misconduct, including, without limitation, breach
of fiduciary duty, the Option shall terminate immediately and automatically on
the date of Optionee's termination.
7. DEATH OF OPTIONEE
Subject to the provisions of the Plan, if the Option is held by
Optionee at the time of his or her death, the Option may be subsequently
exercised by the legal representative of Optionee's estate only to the extent
Optionee was entitled to exercise the Option as of the date of his or her death.
8. METHOD OF EXERCISE OF OPTION
The Option shall be exercised, in whole or in part, by delivery of a
written notice to the Company in the manner described in Article 19 of this
Agreement. Such notice shall be signed by Optionee and shall state the election
to exercise the Option, the number of Common Shares in respect of which the
Option is being exercised, and such other representations and agreements as to
Optionee's investment intent with respect to such Common Shares as may be
required by the Company. Such notice shall be accompanied by payment in full of
the aggregate exercise price of the Common Shares to be purchased in (i) cash,
(ii) check (including, without limitation, payment in accordance with a cashless
exercise program under which, if so instructed by Optionee, Common
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<PAGE>
Shares may be issued directly to Optionee's broker or dealer upon receipt of the
purchase price in cash from the broker or dealer), (iii) other Common Shares of
the Company qualifying as mature shares under appropriate accounting standards
and having an aggregate fair market value on the date of surrender equal to the
aggregate exercise price of the Common Shares being exercised under the Option,
(iv) such other form as the Compensation Committee may accept, or (v) any
combination of such methods of payment. The Option may not be exercised for a
fraction of a Common Share.
9. LIMITATIONS ON EXERCISE OF OPTION
(a) No Common Shares shall be issued pursuant to the exercise
of the Option unless the exercise of the Option and the issuance and delivery of
the Common Shares hereunder shall comply with all relevant provisions of
Canadian and United States laws, including, without limitation, the Securities
Act (Quebec), the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the rules and regulations promulgated thereunder, and
the requirements of any securities exchange upon which the Common Shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
(b) As a condition to the exercise of the Option, the Company
may require Optionee to complete a questionnaire in a form acceptable to the
Company and to make certain representations and warranties required or
desireable (in the opinion of the Company or its counsel), including, without
limitation, any representations and warranties required by law, in the opinion
of counsel, regarding investment intent. Certificates representing Common Shares
issued upon exercise of the Option shall bear a legend prohibiting transfer of
such Common Shares unless, in the opinion of such counsel, such transfer is not
inconsistent with any of the requirements of any applicable Canadian and United
States securities laws.
-4-
<PAGE>
(c) Notwithstanding anything in Articles 6 and 7 hereof to the
contrary, the Option shall not be exercisable after Optionee resigns or
terminates his or her position with the Company if Optionee shall have, during
the time period in which the Option is exercisable, engaged in deliberate action
which, as determined by the Committee, causes substantial harm to the interests
of the Company or constitute a breach of any obligation of Optionee to the
Company. In such event, Optionee shall forfeit all rights to any unexercised
option as of the date of such deliberate action.
10. TAXES
As a condition to the exercise of any portion of the Option, the
Company may require Optionee to make whatever provision is required, in the
reasonable opinion of the Company, to ensure that any taxes required to be
withheld by United States or Canadian federal, state/provincial, or local law as
a result of the granting or exercise of the Option are withheld in accordance
with such applicable law. Provisions for withholding pursuant to the preceding
sentence may include, but shall not be limited to, (i) full payment of the
withholding taxes by Optionee simultaneously with exercise of the Option and
(ii) an agreement by Optionee that such taxes may be withheld in full from any
compensation payable to Optionee.
11. ISSUANCE OF SHARE CERTIFICATES
Upon the payment of the exercise price and subject to all other
provisions of this Agreement and the Plan, the Company will issue certificates
representing the Common Shares subject to the Option. Optionee thereupon shall
have full dividend and voting rights with respect to such Common Shares.
Notwithstanding the exercise of the Option, Optionee shall have no rights as a
shareholder, including the right to vote or to receive dividends, until the
issuance of share certificates by the
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<PAGE>
Company, and no adjustment will be made for a dividend or other right, except as
provided in the Plan, for which the record date is prior to the date of issuance
of the share certificates.
12. NON-TRANSFERABILITY
The Option shall not be transferable in any manner other than by will
or by laws of descent or distribution or as otherwise permitted under the Plan
and may be exercised during the lifetime of Optionee only by Optionee, except as
otherwise permitted under the Plan.
13. NO RIGHT TO CONTINUED EMPLOYMENT
The Option shall not confer upon Optionee any right with respect to
continuance of employment or directorship with the Company or any of its parent
or subsidiary corporations, nor shall it interfere in any way with the right of
the Company or any of its parent or subsidiary corporations to terminate
Optionee's employment and/or directorship therewith at any time.
14. NO OBLIGATION TO EXERCISE OPTION
The granting of the Option shall impose no obligation upon Optionee to
exercise the Option.
15. ADJUSTMENTS
In the event of any increase or decrease in the number of issued Common
Shares resulting from certain corporate events (i.e., a stock split or payment
of stock dividend with respect to the Common Shares or any other increase or
decrease in the number of issued Common Shares effected without receipt of
consideration by the Company), the number of Common Shares subject to the Option
and the exercise price per Common Share shall be proportionately adjusted by the
Committee in accordance with the terms of Article X of the Plan. An adjustment
so made shall be final, conclusive, and binding upon Optionee.
16. OPTIONEE BOUND BY PLAN
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<PAGE>
Optionee hereby acknowledges receipt of a copy of the Plan and agrees
to be bound by all the terms and provisions thereof.
17. SUCCESSORS IN INTEREST
This Agreement shall inure to the benefit of and be binding upon each
successor and assign of the Company. All obligations imposed upon Optionee and
all rights granted to the Company under this Agreement shall be binding upon
Optionee and his or her heirs, executors, administrators, and legal and personal
representatives.
18. RESOLUTION OF DISPUTES
Any dispute or disagreement which may arise under, or as a result of,
or in any way relate to, the interpretation, construction, or application of
this Agreement shall be determined by the Committee and any such determination
made by the Committee shall be final, binding, and conclusive for all purposes.
19. NOTICES
Any notices, letters, offers, acceptances, or other communications
contemplated by this Agreement shall be in writing and shall be deemed duly
given when delivered by hand (with evidence of receipt thereof) or mailed by
certified or registered mail, first class, postage prepaid and return receipt
requested, addressed as follows:
(i) if to Optionee: Phillip Frost, 125 E. San Marino Drive,
Miami Beach, FL 33139
(ii) if to the Company:
North American Vaccine, Inc.
12103 Indian Creek Court
Beltsville, MD. 20705
Attention: Senior Vice President, Legal Affairs;
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<PAGE>
or at such other addresses as Optionee or the Company may have furnished in
writing to each other. The date of notice for all purposes under this Agreement
shall be the date of the receipt of the notice.
20. APPLICABLE LAW
This Agreement shall be construed in accordance with, and governed by,
the laws of the State of Delaware.
21. CONFLICT BETWEEN AGREEMENT AND PLAN
This Agreement shall be construed, to the maximum extent possible,
consistently with the terms of the Plan. The terms of the Plan shall control if
there are any conflicts between the terms of this Agreement and the Plan.
IN WITNESS WHEREOF, the Company and Optionee have executed this
Agreement as of the date set forth above.
NORTH AMERICAN VACCINE, INC.
By: /s/ DANIEL J. ABDUN-NABI
------------------------------------
Daniel J. Abdun-Nabi
Senior Vice President
Legal Affairs & General Counsel
OPTIONEE:
/s/ PHILLIP FROST
----------------------------------------
Phillip Frost
-8-
EXHIBIT 8
NORTH AMERICAN VACCINE, INC.
SUBSCRIPTION AGREEMENT, made as of this ___ day of _____, 1998 between
North American Vaccine, Inc., a corporation organized under the laws of Canada
(the "Company"), and the undersigned (the "Subscriber").
WHEREAS, the Company desires to issue an aggregate of $25,000,000
principal amount of its 4.5% Convertible Secured Notes due 2003 ("Notes") at a
price of 100% of the principal amount thereof on the terms and conditions
hereinafter set forth and the Subscriber desires to acquire the principal amount
of Notes as designated on the signature page hereof.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
I. SUBSCRIPTION FOR NOTES AND REPRESENTATIONS AND WARRANTIES BY
SUBSCRIBER
Each Subscriber hereby represents and warrants to the Company as follows
as of the date hereof and the Closing Date (as hereinafter defined):
1.1 Subject to the terms and conditions hereinafter set forth,
the Subscriber hereby subscribes for and agrees to purchase from the Company the
principal amount of Notes being offered (the "Offering") as is set forth upon
the signature page hereof at a price equal to 100% of the principal amount
thereof, and the Company agrees to sell such Notes to the Subscriber for said
purchase price subject to the Company's right to sell to the Subscriber such
lesser principal amount of Notes as it may, in its sole discretion, deem
necessary or desirable. In the event that more Notes are subscribed for than the
Company is offering, then Notes subscribed for may be reduced as determined by
the Company in its sole discretion, which shall be conclusive and final. The
purchase price is payable by wire transfer or check made payable to the Company
on the Closing Date. The Notes will be issued by the Company on the Closing
Date. The Subscriber understands, however, that this purchase of Notes is
contingent upon the Company making sales of a minimum of U.S.$25,000,000
aggregate principal amount of Notes prior to the Termination Date, as defined in
Article III hereof.
1.2 The Subscriber recognizes that the purchase of Notes involves
a high degree of risk in that (i) the Company requires substantial funds
represented by the proceeds of this private placement; (ii) an investment in the
Company is highly speculative and only investors who can afford the loss of
their entire investment should consider investing in Notes; (iii) it may not be
able to liquidate its investment; (iv) transferability of the Notes is limited;
and (v) in the event of a disposition, an investor could sustain the loss of its
entire investment. Such risks are more fully set forth in the Confidential
Offering Circular furnished by the Company to the Subscriber, together with this
Subscription Agreement.
1.3 The Subscriber represents that it is an "accredited investor"
as such term is defined in Rule 501 of Regulation D promulgated under the United
States Securities Act of 1933, as amended (the "Act"), and that it is able to
bear the economic risk of an investment in the Notes.
<PAGE>
1.4 The Subscriber acknowledges that it has prior investment
experience, including investment in non-listed and non-registered securities, or
it has employed the services of an investment advisor, attorney or accountant to
read all of the documents furnished or made available by the Company to it and
to evaluate the merits and risks of such an investment on its behalf, and that
it recognizes the highly speculative nature of this investment.
1.5 The Subscriber acknowledges receipt and careful review of the
Confidential Offering Circular and the attachments thereto (the "Offering
Documents"), and hereby represents that it has been furnished by the Company
during the course of this transaction with all information regarding the Company
that it had requested or desired to know; that all documents which could be
reasonably provided have been made available for its inspection and review; and
that it has been afforded the opportunity to ask questions of and receive
answers from duly authorized officers or other representatives of the Company
concerning the terms and conditions of the Offering, and any additional
information that it had requested. The Subscriber acknowledges that after
delivery of an executed copy of this Agreement to the Company, subscriptions are
irrevocable until the Termination Date.
1.6 The Subscriber hereby acknowledges that this Offering of
Notes has not been reviewed by the United States Securities and Exchange
Commission ("SEC"), any securities regulators in any province of Canada or any
other regulatory authority, national or foreign, because of the Company's
representations that this is intended to be a nonpublic offering pursuant to
Section 4(2) of the Act. The Subscriber represents that the Notes are being
purchased as principal for its own account, for investment and not for
distribution or resale to others, the Notes having an aggregate acquisition cost
of not less than $250,000. The Subscriber agrees that it will not sell or
otherwise transfer such securities unless they are registered under the Act or
unless an exemption from such registration is available.
1.7 The Subscriber understands that the Notes have not been
registered under the Act by reason of a claimed exemption under the provisions
of the Act that depends, in part, upon its investment intention. In this
connection, the Subscriber understands that it is the position of the SEC that
the statutory basis for such exemption would not be present if its
representation merely meant that its present intention was to hold such
securities for a short period, such as the capital gains period of tax statutes,
for a deferred sale, for a market rise, assuming that a market develops, or for
any other fixed period. The Subscriber realizes that, in the view of the SEC, a
purchase now with an intent to resell would represent a purchase with an intent
inconsistent with its representation to the Company, and the SEC might regard
such a sale or disposition as a deferred sale to which such exemptions are not
available.
1.8 The Subscriber understands that there is no public market for
the Notes and none is likely to develop. The Subscriber understands that even if
a public market develops for the Notes, Rule 144 (the "Rule") promulgated under
the Act requires, among other conditions, a one year holding period prior to the
resale (in limited amounts) of securities acquired in a non-public offering
without having to satisfy the registration requirements under the Act. In
addition, the Subscriber understands that any resale of the Notes or the shares
of Common Stock into which the Notes may be converted in Canada must be made
through an appropriately registered dealer or in accordance with an exemption
from the registration requirements of applicable securities laws and in
accordance with, or pursuant to an exemption from, the prospectus
2
<PAGE>
requirements of such laws, which vary depending on the province. The Subscriber
understands and hereby acknowledges that the Company is under no obligation to
register the Notes, or the shares of Common Stock into which the Notes may be
converted, under the Act. The Subscriber agrees that the Company may, if it
desires, permit the transfer of the Notes out of its name only when its request
for transfer is accompanied by an opinion of counsel reasonably satisfactory to
the Company that neither the sale nor the proposed transfer results in a
violation of the Act, the securities laws applicable to the Subscriber or any
applicable state "blue sky" laws (collectively, "Securities Laws").
1.9 The Subscriber agrees to hold the Company and its directors,
officers and controlling persons and their respective heirs, representatives,
successors and assigns harmless and to indemnify them against all liabilities,
costs and expenses incurred by them as a result of any misrepresentation made by
it contained herein or any sale or distribution by the undersigned Subscriber in
violation of any Securities Laws.
1.10 The Subscriber consents to the placement of a legend on any
certificate or other document evidencing ownership of the Notes stating that
they have not been registered under the Act and setting forth or referring to
the restrictions on transferability and sale thereof.
1.11 The Subscriber understands that the Company will review this
Subscription Agreement and reserves the unrestricted right to reject or limit
any subscription in any manner.
1.12 The Subscriber hereby represents that, except as set forth
in the Offering Documents or in the Indenture governing the Notes or the
Security and Pledge Agreement, no representations or warranties have been made
to the Subscriber by the Company or any agent, employee or affiliate of the
Company and in entering into this transaction, the Subscriber is not relying on
any information, other than that contained in the Offering Documents and the
results of independent investigation by the Subscriber.
1.13 The Subscriber does not have any agreements or
understandings with any other person, written or tacit, with respect to the
acquisition or disposition of the Notes, other than with the other Subscribers
that are parties to a Subscription Agreement.
1.14 The execution, delivery and performance of this Subscription
Agreement by the Subscriber has been duly approved and authorized by all
necessary corporate and shareholder action.
1.15 The consummation of the transactions contemplated by this
Subscription Agreement will not violate or constitute a default under the
Subscriber's organizational documents or any material agreement to which
Subscriber is a party or by which its properties are bound.
II. REPRESENTATIONS BY THE COMPANY
2.1 The Company represents and warrants to the Subscriber that as
of the date of the Offering Documents and at the Closing Date:
3
<PAGE>
(a) The Company is a corporation duly organized, existing
and in good standing under the laws of Canada and has the corporate power to
conduct the business that it conducts and proposes to conduct.
(b) The execution, delivery and performance of this
Subscription Agreement by the Company has been duly approved by the Board of
Directors of the Company and all other actions required to authorize and effect
the offer and sale of the Notes have been duly taken and approved.
(c) The Notes have been duly and validly authorized and
when issued and paid for in accordance with the terms hereof, will be valid and
binding obligations of the Company enforceable in accordance with their
respective terms and entitled to the benefits of the Indenture governing the
Notes.
(d) Except as disclosed in the Confidential Offering
Circular, the Company knows of no pending or threatened legal or governmental
proceedings to which the Company is a party that could materially adversely
affect the business, property, financial condition or operations of the Company.
(e) The Company is not in violation of or default under,
nor will the execution and delivery of this Subscription Agreement, the issuance
of the Notes and the incurrence of the obligations herein and therein set forth
and the consummation of the transactions herein or therein contemplated, result
in a violation of, or constitute a default under, the certificate of
incorporation or by-laws, in the performance or observance of any material
obligations, agreement, covenant, or condition contained in any bond, debenture,
note or other evidence of indebtedness or in any material contract, indenture,
mortgage, loan agreement, lease, joint venture or other agreement or instrument
to which the Company is a party or by which it or any of its properties may be
bound or in violation of any material order, rule, regulation, writ, injunction,
or decree of any government, governmental instrumentality or court, domestic or
foreign.
III. TERMS OF SUBSCRIPTION
3.1 The subscription period will begin as of November 7, 1998 and
will terminate at 11:59 PM Eastern time on November 12, 1998, unless extended
until November 19, 1998 (the "Termination Date") by the Company. The Notes are
being offered on a "minimum" sale basis as more particularly set forth in the
Offering Documents.
3.2 There will be no placement or selling agent involved in the
Offering. The Offering is being conducted directly by the Company.
3.3 If the Company shall not have obtained and accepted
subscriptions (including this subscription) for purchase of U.S.$25,000,000
aggregate principal amount of Notes on or before the Termination Date, which may
be as late as November 19, 1998, then this subscription shall be void. If
U.S. $25,000,000 aggregate principal amount of Notes are accepted by the Company
at or prior to the Termination Date, then all subscriptions accepted by the
Company shall be final and binding.
4
<PAGE>
3.4 The Subscriber hereby authorizes and directs the Company to
deliver the Notes to be issued to such Subscriber pursuant to this Subscription
Agreement to the address listed on the signature page hereof.
3.5 Upon notice from the Company of the date for payment and
issuance of the Notes ("Closing Date"), which shall be on or before November 19,
1998, the Subscriber shall make payment for the Notes by wire transfer or check
made payable to the Company in same day funds.
IV. MISCELLANEOUS
4.1 Any notice or other communication given hereunder shall be
deemed sufficient if in writing and sent by registered or certified mail, return
receipt requested, addressed to the Company, at its offices, 10150 Old Columbia
Road, Columbia, Maryland 21046, Attention: Daniel J. Abdun-Nabi, and to the
Subscriber at its address indicated on the last page of this Subscription
Agreement. Notices shall be deemed to have been given on the date of mailing,
except notices of change of address, which shall be deemed to have been given
when received.
4.2 This Subscription Agreement shall not be changed, modified or
amended except by a writing signed by the parties to be charged, and this
Subscription Agreement may not be discharged except by performance in accordance
with its terms or by a writing signed by the party to be charged.
4.3 This Subscription Agreement shall be binding upon and inure
to the benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns. This Subscription Agreement sets forth
the entire agreement and understanding between the parties as to the subject
matter thereof and merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them.
4.4 Notwithstanding the place where this Subscription Agreement
may be executed by any of the parties hereto, the parties expressly agree that
all the terms and provisions hereof shall be construed in accordance with and
governed by the laws of the State of New York. The parties hereby agree that any
dispute that may arise between them arising out of or in connection with this
Subscription Agreement shall be adjudicated before a court located in New York
and they hereby submit to the exclusive jurisdiction of the courts of the State
of New York and of the federal courts therein with respect to any action or
legal proceedings commenced by any party, and irrevocably waive any objection
they now or hereafter may have respecting the venue of any such action or
proceeding brought in such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Subscription Agreement or
any acts or omissions relating to the sale of the securities hereunder, and
consent to the service of process in any such action or legal proceeding by
means of registered or certified mail, return receipt requested, in care of the
address set forth below or such other address as the undersigned shall furnish
in writing to the other party.
4.5 This Subscription Agreement may be executed in counterparts.
Upon the execution and delivery of this Subscription Agreement by the
Subscriber, this Subscription
5
<PAGE>
Agreement shall become a binding obligation of the Subscriber with respect to
the purchase of Notes as herein provided; subject, however, to the right hereby
reserved to the Company to enter into the same agreements with other subscribers
and to add and/or to delete other persons as subscribers.
4.6 The holding of any provision of this Subscription Agreement
to be invalid or unenforceable by a court of competent jurisdiction shall not
affect any other provision of this Subscription Agreement, which shall remain in
full force and effect.
4.7 It is agreed that a waiver by either party of a breach of any
provision of this Subscription Agreement shall not operate, or be construed, as
a waiver of any subsequent breach by that same party.
4.8 The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Subscription Agreement.
V. BLUE SKY LEGENDS
NOTICE TO RESIDENTS OF FLORIDA:
If sales pursuant to this Subscription Agreement are made to more
than five (5) persons within the state of Florida, such sales are voidable by
the purchaser thereof within three (3) days after the first tender of
consideration is made by such purchaser to the Company or an agent of the
Company.
IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement as of the day and year first written above.
Subscriber Name:
_________________________ U.S.$________________________
Aggregate principal amount of Notes subscribed for
(Minimum Subscription U.S.$250,000)
Address:
__________________________
__________________________
Taxpayer Identification Number:
TIP:
6
<PAGE>
Signature of Authorized Officer or Representative:
_______________________________________ ________________________
PLEASE RETURN ALL COMPLETED SUBSCRIPTION
AGREEMENTS TO DANIEL J. ABDUN-NABI,
10150 OLD COLUMBIA ROAD,
COLUMBIA, MARYLAND 21046
PLEASE RETAIN A COPY OF THE EXECUTED
SUBSCRIPTION AGREEMENT FOR YOUR RECORDS.
SUBSCRIPTION ACCEPTED:
NORTH AMERICAN VACCINE, INC.
By: ____________________
Date: ______________, 1998
7
EXHIBIT 9
[LOGO]
NORTH AMERICAN VACCINE, INC.
November 12, 1998
Phillip Frost, M.D.
4400 Biscayne Blvd.
Miami, FL 33137
Re: 4.5% CONVERTIBLE SECURED NOTES
Dear Dr. Frost:
We are now in receipt of and have accepted your subscription
to purchase a 4.5% Convertible Secured Note ("Note") from North American
Vaccine, Inc. ("Company") in the aggregate principal amount of U.S. $4,250,000.
The closing for this offering will take place on November 12, 1998 beginning at
9 a.m. at the offices of Kirkpatrick & Lockhart LLP, 1251 Avenue of the
Americas, New York, New York 10020.
At or prior to closing, please remit the above indicated
amount to the Company in accordance with the attached wire instructions or in
person at closing by certified check in same day funds payable to the Company.
Upon confirmation of receipt of your payment, Bankers Trust Company, as Trustee,
will authenticate your Note and the Company will deliver such Note to you at the
address and in the name and denomination indicated in your Subscription
Agreement.
If you have not already done so, please contact Lawrence J.
Hineline of the Company at (410) 309-7265 to confirm your manner of payment and
to ask any questions related to the closing.
Sincerely,
NORTH AMERICAN VACCINE, INC.
By: /s/ LAWRENCE J. HINELINE
------------------------------
Lawrence J. Hineline
Vice President-Finance
10150 Old Columbia Road Columbia, MD 21046 Phone 410-309-7100 Fax 410-309-4077
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION AND PROSPECTUS REQUIREMENTS UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), THE ONTARIO
SECURITIES ACT AND THE QUEBEC SECURITIES ACT, AND ANY COMMON SHARES ISSUABLE
UPON CONVERSION OF THIS SECURITY MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF NORTH AMERICAN
VACCINE, INC. THAT (A) THIS SECURITY AND ANY COMMON SHARES ISSUABLE UPON ITS
CONVERSION OF THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(1) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, OR (2) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (3) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER) AND IN
EACH OF ITEMS (1) THROUGH (3) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF THE STATES AND OTHER JURISDICTIONS OF THE UNITED STATES, AND THAT (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY, OR ANY COMMON SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY
FROM IT, OTHER THAN UPON TRANSFER PURSUANT TO ITEM (2) OR (3) OF CLAUSE (A) AS A
CONSEQUENCE OF WHICH THIS LEGEND IS REMOVED OR REMOVABLE, OF THE RESALE
RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE.
THIS SECURITY, ANY COMMON SHARES ISSUABLE UPON CONVERSION OF THIS
SECURITY AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME
TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER
TRANSFERS OF ANY SUCH SECURITIES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR
REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE
RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS
SECURITY AND ANY COMMON SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY SHALL
BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY IN THIS OFFERING, AND ANY COMMON
SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY, TO HAVE AGREED TO ANY SUCH
AMENDMENT OR SUPPLEMENT.
<PAGE>
NORTH AMERICAN VACCINE, INC.
4.5% CONVERTIBLE SECURED NOTE
DUE 2003
No. 2 U.S.$4,250,000
NORTH AMERICAN VACCINE, INC., a corporation duly organized and existing
under the laws of Canada (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to PHILLIP FROST, or his registered assigns,
the principal sum of FOUR MILLION TWO HUNDRED FIFTY THOUSAND United States
Dollars on November 13, 2003 upon surrender hereof to the Paying Agent, and to
pay interest thereon from the date of original issuance of Securities pursuant
to the Indenture or from and including the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on May 13 and
November 13 in each year, commencing May 13, 1999 at the rate of 4.5% per annum,
until the principal hereof is paid or made available for payment. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which shall be the
April 30 or October 31 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. Notice of a Special
Record Date shall be given to Holders of Securities not less than 10 days prior
to such Special Record Date. Payment of the principal of and premium, if any,
and interest on this Security will be made in same day funds at the office or
agency of the Company maintained for that purpose pursuant to Section 1002 of
the Indenture, in each case in such coin or currency of the United States of
America as of the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest in respect of Securities may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register or by transfer to a dollar account maintained by the Holder with a bank
in New York, New York.
The Company will pay to the Holder of this Security who is a
non-resident of Canada (within the meaning of the Income Tax Act (Canada)) such
additional amounts ("Canadian Additional Amounts") as may be necessary in order
that every net payment of the principal of and premium, if any, and interest on
this Security (including payment on redemption or repurchase), after deduction
or withholding for or on account of any present or future tax, assessment or
governmental charge required by law to be deducted or withheld from a payment of
principal, premium or interest on this Security and imposed upon or as a result
of such payment by the Government of Canada or of any province or territory
thereof or by any authority or agency thereof or therein ("Taxing Jurisdiction")
("Canadian Tax"), will not be less than the amount provided for in this Security
to be then due and payable; provided that no Canadian Additional Amounts will be
payable with respect to a payment or credit made to a Holder of, or on behalf of
an owner of a beneficial interest in, this Security (i) with whom the Company
does not deal at arm's length (within the meaning of the Income Tax Act
(Canada)) at the time of making such payment or credit, or (ii) which is subject
to Canadian Taxes by reason of its being connected with Canada or any province
or territory
2
<PAGE>
thereof (including, without limitation, by reason of such person being, or being
deemed to be, a resident of Canada (within the meaning of the Income Tax Act
(Canada)) or carrying on business or being deemed to carry on business (within
the meaning of such Act) in Canada whether in or through a permanent
establishment or fixed base in Canada or otherwise) otherwise than by the mere
holding of this Security or the receipt of payments or credits thereunder or
(iii) that could obtain an exemption from, or reduction in, the applicable
Canadian Tax by satisfying reporting or certification requirements imposed by
the relevant Taxing Jurisdiction and that fails to do so (such a Holder or owner
being referred to herein collectively as a "Canadian Excluded Holder").
The Company will also pay to the Holder of this Security who is a United
States Alien (as defined below) such additional amounts ("U.S. Additional
Amounts," and, together with Canadian Additional Amounts, "Additional Amounts")
as may be necessary in order that every net payment of the principal of and
premium, if any, and interest on this Security (including payment on redemption
or repurchase), after deduction or withholding for or on account of any present
or future tax, assessment or governmental charge imposed upon or as a result of
such payment by the United States or any political subdivision or taxing
authority thereof or therein ("U.S. Tax," and, together with Canadian Tax,
"Taxes"), will not be less than the amount provided for in this Security to be
then due and payable; provided that no U.S. Additional Amounts will be payable
to such a Holder with respect to:
(a) any U.S. Tax that would not have been so imposed but for (i) the
existence of any present or former connection between such Holder (or between a
fiduciary, settlor, beneficiary, member, shareholder of or possessor of a power
over such a Holder that is an estate, a trust, a partnership or a corporation)
and the United States or any political subdivision or taxing authority thereof
or therein, including, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or having been a
citizen or resident of the United States or treated as a resident thereof, or
being or having been engaged in a trade or business or present therein, or
having or having had a permanent establishment therein, or (ii) such Holder's
present or former status as a personal holding company, a foreign personal
holding company with respect to the United States, or a foreign private
foundation or foreign tax-exempt entity for U.S. tax purposes, or a corporation
that accumulates earnings to avoid U.S. federal income tax;
(b) any U.S. Tax that would not have been so imposed but for the
presentation by such Holder of this Security for payment on a date more than 15
days after the date on which such payment became due and payable or the date on
which payment thereof is duly provided for, whichever occurs later;
(c) any U.S. Tax that is an estate, inheritance, gift, sales, transfer,
personal property or similar tax, assessment or governmental charge;
(d) any U.S. Tax that would not have been imposed but for the
failure to comply with any certification, identification or other reporting
requirements concerning the nationality, residence, identity or connection with
the United States of such Holder (or owner of a beneficial interest in this
Security), if compliance is required by statute or by regulation of the United
States as a precondition to relief or exemption from such U.S. Tax;
(e) any U.S. Tax that is payable otherwise than by deduction or
withholding from payments of principal or premium, if any, or interest on this
Security;
3
<PAGE>
(f) any U.S. Tax imposed on a Holder that actually or constructively
owns 10% or more of the total combined voting power of all classes of stock of
the Company entitled to vote or that is a controlled foreign corporation related
to the Company through stock ownership;
(g) any U.S. Tax imposed on a Holder that is a partnership or a
fiduciary or other than the sole beneficial owner of such payment, but only to
the extent that any beneficial owner or member of the partnership or beneficiary
or settlor with respect to the fiduciary would not have been entitled to the
payment of U.S. Additional Amounts had the beneficial owner, member, beneficiary
or settlor directly been the Holder of this Security; or
(h) any combination of items (a), (b), (c), (d), (e), (f) and (g).
(The Holder of this Security with respect to which any of the listed
U.S. Taxes becomes payable is referred to herein as a "U.S. Excluded Holder,"
and U.S. Excluded Holders, together with Canadian Excluded Holders, are referred
to herein as "Excluded Holders." For purposes of this Security, a "United States
Alien" is any person who, for U.S. federal income tax purposes, is a foreign
corporation, a nonresident alien individual, a nonresident alien fiduciary of a
foreign estate or trust, or a foreign partnership one or more of the members of
which is, for U.S. federal income tax purposes, a foreign corporation, a
nonresident alien individual or a nonresident alien fiduciary of a foreign
estate or trust.)
The Company will make any deduction or withholding, and remit the full
amount deducted or withheld to the relevant authority, in accordance with
applicable law. The Company will furnish the Holder of this Security, within 30
days after the date the payment of any Taxes is due pursuant to applicable law,
certified copies of tax receipts evidencing such payment by the Company. The
Company will indemnify and hold harmless the Holder of, or each owner of a
beneficial interest in, this Security (other than an Excluded Holder) and upon
written request will reimburse the Holder, or such owner of a beneficial
interest, for the amount of (i) any Taxes levied or imposed on and paid by the
Holder, or such owner of a beneficial interest, as a result of payments made
with respect to this Security, (ii) any liability (including penalties, interest
and reasonable expenses) arising from or with respect to Taxes, and (iii) any
Taxes imposed with respect to payment of Additional Amounts or any reimbursement
pursuant to this sentence.
Notwithstanding the foregoing, the Company shall not be obligated to pay
Additional Amounts in respect of payments becoming due on this Security more
than 15 days after the redemption date for a redemption described on the reverse
hereof except to the extent that the Company's obligations to pay such
Additional Amounts does not arise from the Tax Law Change that resulted in such
redemption.
At least 30 days prior to each date on which any payment under or with
respect to this Security is due and payable, if the Company will be obligated to
pay Additional Amounts with respect to such payment, the Company will deliver to
the Trustee and the Paying Agent an Officers' Certificate stating the fact that
such Additional Amounts will be payable and setting forth the amounts so payable
and other information necessary to enable the Trustee and the Paying Agent to
pay such Additional Amounts to the Holder or owners of a beneficial interest in
this Security, as the case may be, on the payment date.
Except as specifically provided herein and in the Indenture, the Company
shall not be required to make any payment with respect to any Taxes. Whenever in
this Security there is a reference, in any context, to the payment of the
principal of or premium, if any, or interest on, or in respect of, this
Security, such
4
<PAGE>
mention shall be deemed to include mention of the payment of Additional Amounts
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect of this Security. Express mention of the payment of
Additional Amounts (if applicable) in any provision of this Security shall not
be construed as excluding Additional Amounts in those provisions of this
Security where such express mention is not made.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal
Dated: _____________________
[Corporate Seal] NORTH AMERICAN VACCINE, INC.
By: _________________________________
Daniel J. Abdun-Nabi, Senior Vice
President-Legal Affairs
By: _________________________________
Lawrence J. Hineline,
Vice President-Finance
Attest:
By: ________________________
Name:
Title:
5
<PAGE>
This Security is one of a duly authorized issue of Securities of the
Company designated as its 4.5% Convertible Secured Notes due 2003 (herein called
the "Securities"), limited in aggregate principal amount to $25,000,000, issued
and to be issued under an Indenture, dated as of November 12, 1998 (herein
called the "Indenture"), between the Company and Bankers Trust Company as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
Subject to and upon compliance with the provisions of the Indenture, the
Holder of this Security is entitled, at his option, at any time following the
date of original issuance of Securities pursuant to the Indenture and on or
before the close of business on November 13, 2003, or in case this Security or a
portion hereof is called for redemption, then in respect of this Security or
such portion hereof until and including, but (unless the Company defaults in
making the payment due upon redemption) not after, the close of business on the
Business Day next preceding the Redemption Date, to convert this Security (or
any portion of the principal amount hereof which is $1,000 or an integral
multiple thereof), at the principal amount hereof, or of such portion, into
fully paid and non-assessable Common Shares (calculated as to each conversion to
the nearest 1/100th of a share) at a conversion price equal to $8.5406 principal
amount for each Common Share (or at the current adjusted conversion price if an
adjustment has been made as provided in the Indenture) by surrender of this
Security, duly endorsed or assigned to the Company or in blank, to the Company
at its office or agency maintained for that purpose pursuant to Section 1002 of
the Indenture, accompanied by written notice to the Company in the form provided
in this Security (or such other notice as is acceptable to the Company) that the
Holder hereof elects to convert this Security, or if less than the entire
principal amount hereof is to be converted, the portion hereof to be converted,
and, in case such surrender shall be made during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to
the close of business on the Business Day immediately preceding such Interest
Payment Date (unless this Security or the portion thereof being converted has
been called for redemption during the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the close of
business on the Business Day next preceding the following Interest Payment
Date), also accompanied by payment in funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted. If such Security or
portion thereof being converted shall have been called for redemption during the
period from the close of business on the Regular Record Date to the close of
business on the Business Day next preceding the following Interest Payment Date,
then the company shall pay interest on such Security or portion thereof until
the date of conversion. Subject to the aforesaid requirements no payment or
adjustment is to be made upon conversion on account of any interest accrued
hereon or on account of any dividends on the Common Shares issued upon
conversion. No fractional shares or scrip representing fractions of shares will
be issued on conversion, but, instead of any fractional share the Company shall
pay a cash adjustment as provided in the Indenture. The conversion price is
subject to adjustment as provided in the Indenture.
In addition, the Indenture provides that in case of certain
amalgamations, consolidations, mergers, sales or transfers to which the Company
is a party, the Indenture shall be amended, without the consent of any Holders
of Securities, so that this Security, if then Outstanding, will be convertible
thereafter, during the period this Security shall be convertible as specified
above, only into the kind and amount of securities,
6
<PAGE>
cash and other property receivable upon such amalgamation, consolidation,
merger, sale or transfer by a holder of the number of Common Shares of the
Company into which this Security could have been converted immediately prior to
such amalgamation, consolidation, merger, sale or transfer, but subject to all
requirements necessary to ensure that the Securities will not be subject to
Canadian Tax as a result thereof, and assuming such holder of Common Shares is
not a Person with which the Company amalgamated or consolidated or into which
the Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be, or an Affiliate thereof and, failed to
exercise any rights of election as to the kind or amount of securities, cash or
other property receivable upon such amalgamation, consolidation, merger, sale or
transfer and further assuming, if such amalgamation, consolidation, merger, sale
or transfer occurs prior to the later of 60 days following the date of original
issuance of the Securities, that the Security was convertible at the time of
such occurrence at the conversion price specified above as adjusted from the
date of original issuance of such Security to such time as provided in the
Indenture, subject to any requirements necessary to ensure that this Security
will be and will remain exempt from Canadian Tax including, without limitation,
the requirement in effect on the date hereof that the Holder of this Security
shall not under any circumstances be entitled to receive shares, other
securities or property, other than securities that are "prescribed securities"
as defined in Section 6208 of the Regulations under the Income Tax Act (Canada),
in the event that any such amalgamation, consolidation, merger, sale or transfer
occurs on or prior to the day that is five years plus one day from the date of
original issuance of the Securities. Notwithstanding any provision to the
contrary if such amalgamation, consolidation, merger, or transfer occurs on or
prior to the day that is 5 years plus one day from the date of original issuance
of this Security, a holder of this Security shall not be entitled in any
circumstances to convert such Security into any securities, cash or other
property (the "Substituted Properties") unless such Substituted Properties are
"prescribed securities" with respect to the Security for purposes of clause
212(1)(b)(vii)(E) of the Income Tax Act (Canada).
The Securities are subject to redemption upon not less than 30 and not
more than 60 days' notice by mail, at any time on or after November 13, 1999, as
a whole or in part, at the election of the Company, at the Redemption Price set
forth below (expressed as a percentage of the principal amount), plus accrued
interest to the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date to receive interest due on an Interest Payment
Date that is on or prior to the Redemption Date).
REDEMPTION PRICE
----------------
100.00%
in each case together with accrued and unpaid interest, if any, to, but
excluding, the Redemption Date.
Securities are also redeemable, at the option of the Company, in whole
but not in part, under the circumstances described in the next succeeding
paragraph, at a Redemption Price equal to 100% of the principal amount thereof
plus interest accrued to the Redemption Date and any Additional Amounts;
PROVIDED, HOWEVER, that interest installments on Securities whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.
7
<PAGE>
If the Company has or will become obligated to pay to the Holder of this
Security Additional Amounts, as described on the face of this Security, as a
result of any change in, or amendment to, or proposed amendment to, the laws
(including any regulations and rulings promulgated thereunder) of the United
States or Canada, or any political subdivision or taxing authority thereof or
therein affecting taxation, or any change in, or amendment to, or proposed
amendment to the application or official interpretation of such laws,
regulations or rulings (any such change or amendment being herein referred to as
a "Tax Law Change"), and such obligation cannot be avoided by the Company taking
reasonable measures available to it, then the Company may, at its option, redeem
this Security as a whole but not in part, upon not less than 30 days nor more
than 60 days notice to the Holder prior to the Redemption Date, at a Redemption
Price equal to 100% of the principal amount plus interest accrued to the
Redemption Date and any Additional Amounts then payable; provided, that (i) no
such notice of redemption shall be given earlier than 90 days prior to the
earliest date on which the Company would be obligated to pay any such Additional
Amounts were a payment in respect of this Security then due and (ii) at the time
such notice of redemption is given, such obligation to pay such Additional
Amounts remains in effect. Prior to the mailing of any notice of redemption
pursuant to this paragraph, the Company shall deliver to the Trustee (a) an
Officers' Certificate stating that the Company is entitled to effect such
redemption and setting forth a statement of facts showing that the conditions
precedent to the right of the Company so to redeem have occurred and (b) an
Opinion of Counsel, to the effect that the Company has or will become obligated
to pay such Additional Amounts as a result of a Tax Law Change. The Company's
right to so redeem this Security shall continue as long as the Company shall
have made payments of Additional Amounts specified on the face of this Security.
If a Change in Control occurs, the Holder of this Security shall have
the right, in accordance with the provisions of the Indenture, to require the
Company to repurchase this Security (or any portion of the principal amount
hereof that is an integral multiple of $1,000) for cash at a Repurchase Price
equal to 100% of the principal amount thereof plus interest accrued to the
Repurchase Date. At the option of the Company, the Repurchase Price may be paid
in cash or, as provided in the Indenture, by delivery of Common Shares having a
fair market value equal to the Repurchase Price; PROVIDED that payment may not
be made in Common Shares unless at the time of payment such Shares are listed on
a national securities exchange or quoted on Nasdaq. For purposes of this
paragraph, the fair market value of Common Shares shall be determined by the
Company and shall be equal to 95% of the average of the Closing Prices Per Share
for the five consecutive Trading Days immediately preceding the second Trading
Day immediately preceding the Repurchase Date. Whenever in this Security there
is a reference, in any context, to the principal of any Security as of any time,
such reference shall be deemed to include reference to the Repurchase Price
payable in respect of such Security and express mention of such Repurchase Price
in any provision of this Security shall not be construed as excluding the
Repurchase Price in those provisions of this Security when such express mention
is not made.
In the event of redemption or conversion of this Security in part only,
a new Security or Securities for the unredeemed or unconverted portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, in all respects,
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness, except with respect to the Collateral as provided in the
Security and Pledge Agreement, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall
8
<PAGE>
be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided, and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding, and, under certain limited circumstances, by the Company and the
Trustee without the consent of the Holders. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed or to convert this Security as provided in the
Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in fully registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer or
exchange except as provided in the Indenture, and the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, except as provided in this Security, whether or not this Security be
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overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture. The Company will furnish to
any Holder upon written request and without charge a copy of the Indenture.
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CONVERSION NOTICE
To North American Vaccine, Inc.
The undersigned registered owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion hereof (which is
$1,000 or a multiple thereof) designated below, into Common Shares in accordance
with the terms of the Indenture referred to in this Security, and directs that
the shares issuable and deliverable upon the conversion, together with any check
in payment for a fractional share and any Security representing any unconverted
principal amount hereof, be issued and delivered to the registered owner hereof
unless a different name has been provided below. If this Notice is being
delivered on a date after the close of business on a Regular Record Date and
prior to the close of business on the related Interest Payment Date, this Notice
is accompanied by payment in funds acceptable to the Company, of an amount equal
to the interest payable on such Interest Payment Date on the principal of this
Security to be converted (unless this Security has been called for redemption,
in which event the amount payable to accompany this Notice shall be determined
in accordance with the Indenture). If shares or any portion of this Security not
converted are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto. Any
amount required to be paid by the undersigned on account of interest accompanies
this Security.
_______________________________
Dated: ____________________________ _______________________________
Signature(s)
Signature(s) must be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program) pursuant to SEC Rule 17Ad -
15, if Common Shares are to be delivered, or Securities to be issued, other than
to and in the name of the registered owner.
___________________________________
Signature Guarantee
Fill in for registration of Common Shares if they are to be delivered,
or Securities if they are to be issued, other than to and in the name of the
registered owner:
___________________________________
(Name)
___________________________________
(Street Address)
___________________________________
(City, State and zip code)
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(Please print name and address)
Register: ___________ Common Shares
___________ Securities
(Check appropriate line(s)).
Principal amount to be converted (if less than all): $_____________,000
_______________________________________________
Social Security or other Taxpayer Identification
Number of owner
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ASSIGNMENT FORM
For value received ____________________________________hereby sell(s),
assign(s) and transfer(s) unto _____________________________________ (Please
insert social security or other Taxpayer Identification Number of assignee
______________) the within Security, and hereby irrevocably constitutes and
appoints __________________________ attorney to transfer the said security on
the books of the Company, with full power of substitution in the premises.
In connection with any transfer of the within Security within two years
of the date of original issuance of such Security (unless such Security has been
sold pursuant to a registration statement that was effective at the time of such
transfer), the undersigned confirms that such Security is being transferred:
To North American Vaccine, Inc., or a subsidiary thereof; or
In an exempt transaction pursuant to and in compliance with the
Securities Act; or
Pursuant to and in compliance with Rule 144 under the Securities
Act;
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate").
The transferee is an Affiliate of the Company.
Dated: ___________________ ____________________________________
Signature(s)
Signature(s) must be guaranteed by
an eligible guarantor institution
(banks, stockbrokers, savings and
loan associations and credit unions
with membership in an approved
signature guarantee medallion
program) pursuant to SEC Rule
17Ad-15 if Common Shares are to be
issued, or Securities to be
delivered, other than to or in the
name of the registered Holder.
___________________________________
Signature Guarantee
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 1401 of the Indenture, check the Box:
If you wish to have a portion of this Security (which is $1,000 or an
integral multiple thereof) purchased by the Company pursuant to Section 1401 of
the Indenture, state the amount you wish to have purchased:
$____________________
Date: _______________ Your Signature(s):_________________________
Tax Identification No.:____________________
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee:___________________________________________________________
The signature to this option of Holder to elect purchase should be
guaranteed by an eligible guarantor institution (banks, stockbrokers, savings
and loan associations and credit unions with membership in an approved signature
guarantee medallion program) pursuant to SEC Rule 17 Ad - 15.
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:_____________________ BANKERS TRUST COMPANY,
as Trustee
By:________________________
Authorized Signatory
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