<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 11)*
North American Vaccine, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, No Par Value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
657-201-109
- --------------------------------------------------------------------------------
(CUSIP Number)
Charles-A. Tessier, Vice-President, Legal Affairs and General Counsel
BioChem Pharma Inc., 275 Armand Frappier Boulevard,
Laval, Quebec H7V 4A7 Canada
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
November 17, 1999
- --------------------------------------------------------------------------------
(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 this 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).
<PAGE> 2
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BIOCHEM PHARMA INC.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Laval, Quebec, Canada
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF
SHARES 14,326,418
BENEFICIALLY -------------------------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH
REPORTING N/A
PERSON -------------------------------------------------------
WITH 9. SOLE DISPOSITIVE POWER
14,326,418
-------------------------------------------------------
10. SHARED DISPOSITIVE POWER
N/A
<PAGE> 3
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,326,418
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
N/A
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
3
<PAGE> 4
This amendment Number 11 amends and supplements the Statement on
Schedule 13D (the "Schedule 13D") filed on behalf of BioChem Pharma Inc.
("BioChem"), a publicly-owned Canadian pharmaceutical company incorporated under
the laws of Canada, relating to the common stock, no par value per share, of
North American Vaccine, Inc. (the "Company"). Capitalized terms used and not
defined in this Amendment have the meanings set forth in the Schedule 13D as
amended. Items 3, 4, 5, 6 and 7 of the Schedule 13D are hereby amended and
supplemented to add the following:
Item 3. Source and Amount of Funds or Other Consideration.
No change from the Schedule 13D as originally filed and subsequently
amended except as set forth below.
BioChem currently holds 750,000 Warrants. BioChem has agreed that the
Warrants will be terminated at the closing of the Arrangement (as defined below)
in exchange for aggregate consideration of $1,396,875. Baxter International Inc.
("Baxter") has agreed to pay off any amounts outstanding under the Line of
Credit and the Guarantee upon closing of the Arrangement.
Item 4. Purpose of Transaction
On November 17, 1999, the Company entered into a Share
Exchange Agreement (the "Share Exchange Agreement") with Baxter and a newly
formed Canadian subsidiary of Baxter providing for the acquisition by Baxter of
all of the Company's outstanding Common Stock by means of an arrangement under
Section 192 of the Canada Business Corporation Act (the "Arrangement"). Upon
closing of the Arrangement, each share of Common Stock will be exchanged for a
fraction of a share of Baxter's common stock having a value of $6.97 plus a cash
payment of $.03. The closing of the Arrangement by Baxter is subject to
customary conditions, including certain regulatory approvals and the absence of
a material adverse effect on the Company.
In connection with the execution of the Share Exchange Agreement,
BioChem entered into a Shareholder Agreement dated as of November 17, 1999 with
Baxter and certain other shareholders of the Company (the "Shareholder
Agreement"), pursuant to which it has agreed to vote its shares of the Common
Stock in favor of the Arrangement. The terms of the Shareholder Agreement are
described in Item 6 below.
BioChem and Baxter have also entered into a Stock Purchase Agreement
dated as of November 17, 1999 (the "Stock Purchase Agreement"), pursuant to
which Baxter has agreed to purchase 714,286 shares of Common Stock (the
"Divested Shares") from BioChem for $7.00 in cash per share, or an aggregate of
$5,000,002. It is expected that the purchase and sale of the Divested Shares
will be completed within two weeks of the date hereof.
As more fully described in Item 6 below, BioChem has agreed to vote its
shares of Common Stock in favor of the Arrangement. If the Arrangement does not
occur, BioChem will reconsider its
4
<PAGE> 5
plans with respect to the Company. Such plans could include the sale of all or a
portion of the securities issued by the Company which are currently held by
BioChem, the purchase of all or a portion of the outstanding equity securities
issued by the Company which are not currently held by BioChem or other strategic
transactions involving the Company.
Other than as stated above, BioChem has no present plans or proposals
which relate to or would result in any actions described in subparagraphs (a)
through (j) of Schedule 13D. BioChem reserves the right to determine in the
future whether to pursue any plans or proposals of the type specified above.
Item 5. Interest in Securities of the Issuer.
(a) After giving effect to the sale of the Divested Shares, BioChem
will own 10,522,640 shares of the Company's Common Stock, 1,000,000 shares of
the Company's Class A Preferred Stock and $9,000,000 principal amount of the
Company's 4.5% convertible secured notes due 2003 (the "Notes"), which are
convertible into the Company's Common Stock and will be repaid upon closing of
the Arrangement. Accordingly, BioChem beneficially owns an aggregate amount of
14,326,418 of the Company's Common Stock representing 40% of the Company's
Common Stock.
(b) The amount disclosed includes 1,000,000 shares of the Company's
Class A Preferred Stock which are convertible into 2,000,000 shares of the
Company's Common Stock, 1,053,778 shares of the Company's Common Stock into
which the Notes are currently convertible and 750,000 Warrant Shares.
(c) Except as described in Item 6 below, BioChem has sole and exclusive
voting and dispositive power with respect to all shares of the Company's Common
Stock and Class A Preferred Stock which BioChem beneficially owns.
Item 6. Contracts, Arrangements, Understandings or Relationships With respect to
Securities of the Issuer.
In order to induce Baxter to enter into the Share Exchange Agreement,
BioChem, Frost-Nevada, Limited Partnership ("Frost LP"), IVAX Corporation
("IVAX") and Phillip Frost, M.D. ("Frost") have entered into the
Shareholder Agreement with Baxter.
Pursuant to the Shareholder Agreement, each of BioChem, Frost LP, IVAX
and Frost has agreed to vote their shares of Common Stock in favor or the
Arrangement. In addition, each of BioChem, Frost L.P., IVAX and Frost has agreed
to timely deliver to Baxter a duly executed proxy (each a "Proxy") which Proxy
will cover all shares of Common Stock owned by such shareholder and entitled to
vote at each meeting of shareholders of the Company (including, without
limitation, each written Consent in lieu of meeting) (the "Shares"). Each Proxy
will serve to irrevocably appoint the members of the Board of Directors of
Baxter to vote the Shares. Each Proxy
5
<PAGE> 6
and the Shareholder Agreement will terminate upon the earliest to occur of (i)
such date and time as the Arrangement shall become effective in accordance with
terms and provisions of the Share Exchange Agreement, (ii) the date of
termination of the Share Exchange Agreement, (iii) a material breach by Baxter
of any agreement with such Party and (iv) May 31, 2000 (such earliest date, the
"Expiration Date").
Until the Expiration Date, the shareholder parties have agreed not to
(and to use reasonable efforts to cause the Company, its affiliates, officers,
directors and employees and any investment banker, attorney, accountant or other
agent retained by any of such shareholder parties, the Company or any of the
same, not to, except to the extent otherwise permitted under the Share Exchange
Agreement): (i) solicit, initiate or encourage (including by way of furnishing,
or disclosing nonpublic information) any inquiries or the making of any proposal
or offer (including, without limitation, any proposal or offer to any
shareholders of the Company) that constitutes or may reasonably be expected to
lead to, any Company Competing Transaction (as such term is defined in the Share
Exchange Agreement); or (ii) knowingly encourage or otherwise enter into or
maintain or continue discussions or negotiate with any person with respect to
such inquires or to obtain a Company Competing Transaction, or agree to or
endorse any agreement, arrangement or understanding with respect to any Company
Competing Transaction. In the event any of the shareholder parties become aware
of any Company Competing Transaction subsequent to November 17, 1999, each of
such shareholder parties has agreed to promptly inform Baxter as to any such
matter and the details thereof to the extent possible without breaching any
other agreement to which such shareholder is a party or violating its fiduciary
duties.
The description of the agreements contained herein is not intended to
be complete and is qualified in its entirety by reference to such agreements
which are attached hereto as Exhibits 99.1 and 99.2 and incorporated herein by
reference.
Item 7. Material to be Filed as Exhibits.
99.1. Stock Purchase Agreement dated November 17, 1999 between
Baxter International Inc. and BioChem Pharma, Inc.
99.2. Shareholder Agreement dated as of November 17, 1999 among
Baxter International Inc., BioChem Pharma Inc., Phillip
Frost, M.D., Frost-Nevada, Limited Partnership and IVAX
Corporation.
99.3. Press release dated November 18, 1999.
6
<PAGE> 7
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
BIOCHEM PHARMA INC.
By: /s/ Charles-A. Tessier
Charles-A. Tessier
Vice-President, Legal Affairs and
General Counsel
7
<PAGE> 8
EXHIBIT INDEX
99.1. Stock Purchase Agreement dated November 17, 1999 between
Baxter International Inc. and BioChem Pharma, Inc.
99.2. Shareholder Agreement dated as of November 17, 1999 among
Baxter International Inc., BioChem Pharma Inc., Phillip
Frost, M.D., Frost-Nevada, Limited Partnership and IVAX
Corporation.
99.3. Press release dated November 18, 1999.
8
<PAGE> 1
EXHIBIT 1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated November 17, 1999, between
Baxter International Inc., a Delaware corporation ("Acquisition"), and BioChem
Pharma Inc. (the "Seller").
WHEREAS, the Seller owns 11,179,114 Common Shares (the "NAV
Common Stock"), of North America Vaccine, Inc., a corporation organized under
the laws of Canada ("NAV"); and
WHEREAS, NAV, Acquisition and Neptune Acquisition Corp. have
entered into a Share Exchange Agreement (the "Share Exchange Agreement"), dated
the date hereof, providing for acquisition to acquire all the outstanding
capital stock of NAV (the "Merger"); and
WHEREAS, Seller wishes to sell to Acquisition 714,286 shares
of NAV Common Stock, and Acquisition wishes to purchase such shares from the
Seller on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the mutual covenants,
agreements, representations and warranties herein contained, the parties hereto
agree as follows:
1. Purchase and Sale of the Shares and the Options.
1.1. Purchase and Sale of the Shares and the Options. Subject
to the terms and conditions of this Agreement, at the Closing provided for in
Section 1.2, the Seller will sell, and Acquisition will purchase, 714,286 shares
of NAV Common Stock (the "Shares").
1.2. Purchase Price. The purchase price for the Shares shall
be U.S. $7.00 per share.
1.3. Closing. The closing of the purchase and sale of the
Shares (the "Closing") will take place at the offices of Brobeck, Phleger &
Harrison LLP, 1633 Broadway, New York, New York at 10:00 A.M. New York time on
such date as shall be mutually agreed to by the parties hereto, but in any case
on or prior to November 29, 1999. At the Closing, the Seller will deliver to
Acquisition, against payment of the purchase price therefor as provided below,
good and valid title to the Shares free and clear of any liens, charges,
encumbrances, security interests, options or rights or claims of others with
respect thereto, by (a) delivering to Acquisition certificates for the Shares,
duly endorsed in blank or accompanied by the appropriate instruments of
assignment duly executed in blank, and (b) having all requisite stock transfer
stamps attached. At the Closing, Acquisition shall pay the aggregate purchase
price for the Shares to be sold by the Seller by either delivery of a check in
New York Clearing House funds payable to the order of such Seller, or by wire
transfer of immediately available funds to an account designated by the Seller
at least three business days prior to the Closing.
2. Representations of the Seller. The Seller hereby represents and
warrants to Acquisition as follows:
<PAGE> 2
2.1. Authority. The Seller has full power and authority to
enter into this Agreement and to carry out the terms hereof. This Agreement has
been duly executed and delivered by the Seller and constitutes the legal, valid
and binding obligation of such Seller, enforceable against the Seller in
accordance with its terms.
2.2. Title to the Shares and Options. The Seller owns
11,179,114 shares of NAV Common Stock, and at the time of Acquisition purchases
the Shares, Acquisition will acquire good and unencumbered title thereto, free
and clear of any lien, pledge, charge, security interest, encumbrance, title
retention agreement, adverse claim or option.
2.3. No Conflict, etc. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and the
performance by the Seller of this Agreement in accordance with its terms does
not and will not violate, conflict with, result in the breach of any term or
provision of, or constitute a default under, any agreement or instrument to
which the Seller is a party or by which the Seller is bound or any statute,
order, judgment, rule or regulation applicable to the Seller. The Seller is not
subject to any contractual restrictions relating to the disposition of the
Shares held by the Seller, and no consent, approval, authorization, order,
filing, registration or qualification of or with any court, governmental
authority or third person is required to be obtained by the Seller in connection
with the execution and delivery of this Agreement by the Seller or the sale of
such Shares as contemplated hereby.
3. Representations and Warranties of Acquisition. Acquisition
represents and warrants to the Seller as follows:
3.1. Corporate Organization and Standing of Acquisition.
Acquisition is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware.
3.2. Authority for Agreement. Acquisition has the corporate
power and authority to execute and deliver this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
other transactions contemplated hereby have been duly authorized by
Acquisition's Board of Directors and this Agreement constitutes the valid and
legally binding obligation of Acquisition enforceable in accordance with its
terms.
3.3. No Conflict, etc. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and the
performance by Acquisition of this Agreement in accordance with its terms will
not violate, conflict with, result in the breach of any term or provision of, or
constitute a default under, any agreement or instrument to which Acquisition is
a party or by which Acquisition is bound or any statute, order, judgment, rule
or regulation applicable to Acquisition. No consent, approval, authorization,
order, filing, registration or qualification of or with any court, governmental
authority or third person is required to be obtained by Acquisition in
connection with the execution and delivery of this Agreement by Acquisition and
the purchase of the Shares as contemplated hereby.
2
<PAGE> 3
3.4. Acquisition of Shares. Acquisition is acquiring the
Shares purchased hereunder or acquired pursuant hereto solely for its own
account with the present intention of holding such securities for purposes of
investment, and that it has no intention of selling the Shares in a public
distribution in violation of the federal securities laws or any applicable state
securities laws. Each certificate or instrument representing the Shares shall be
imprinted with a legend in substantially the following form:
"THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES
LAWS AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED."
3.5. Evaluation of Investment. Acquisition is sophisticated in
financial matters and is able to evaluate the risks and benefits of the purchase
of the Shares. Acquisition has determined that the purchase of the Shares is
suitable for Acquisition based upon its financial situation and needs, as well
as its other securities holdings.
3.6. Receipt of Information. Acquisition has had the
opportunity to ask questions and receive answers concerning the terms and
conditions of the sale of the Shares and has had full access to such other
information concerning NAV and its subsidiaries and affiliates as it has
requested in order to evaluate the merits and risks inherent in purchasing the
Shares.
3.7. Broker Fees. There are no claims for brokerage
commissions, finders' fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement binding upon Acquisition. Acquisition shall pay, and hold Seller
harmless against, any liability, loss or expense (including, without limitation,
reasonable attorneys' fees and out-of-pocket expenses) arising in connection
with any such claim.
3.8. Conditions to Obligations of Acquisition. The obligation
of Acquisition to purchase the Shares is subject to the fulfillment, at or prior
to the Closing, of the following conditions:
(a) NAV and Acquisition shall have entered into the
Merger Agreement;
(b) The representations and warranties of the Seller
shall have been true and correct in all material respects when made and as of
the Closing.
4. Conditions to Obligations of the Seller. The obligation of the
Seller to sell the Shares is subject to the fulfillment, at or prior to the
Closing of the following conditions:
3
<PAGE> 4
(a) NAV and Acquisition shall have entered into the
Merger Agreement;
(b) The representatives and the warranties of
Acquisition shall have been true and correct in all material respects when made
and as of the Closing.
5. Miscellaneous.
5.1. Amendment; Governing Law. This Agreement may only be
amended by a writing signed by each of the parties. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without giving effect to applicable principles of conflict of laws. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, and all of which shall constitute one and the same instrument.
5.2. Assignment. This Agreement may not be assigned by any
party hereto without the written consent of the other parties hereto.
5.3. Expenses. Each party hereto shall bear its own expenses
in connection with the execution and delivery of this Agreement.
5.4. Notices. All notices, waivers and other communications
hereunder or with respect hereto shall be in writing and shall be deemed to have
been duly given if signed by the respective persons giving them:
(a) If to Acquisition:
Baxter International Inc.
One Baxter Parkway
Deerfield, Illinois 60015
Attention: General Counsel
with a copy to
Brobeck, Phleger & Harrison LLP
1633 Broadway
New York, NY 10019
Attention: Eric Simonson, Esq.
(b) If to Seller:
---------------------------
---------------------------
---------------------------
4
<PAGE> 5
Notices given in accordance with this Section 6.4 shall be deemed to
have been given on the date delivered.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
BAXTER INTERNATIONAL INC.
By:___________________________
Name:
Title:
BIOCHEM PHARMA INC.
By:__________________________
Name:
Title:
BIOCHEM PHARMA INC.
By:__________________________
Name:
Title:
5
<PAGE> 1
EXHIBIT 2
ANNEX B
FORM OF SHAREHOLDER AGREEMENT
This SHAREHOLDER AGREEMENT (this "AGREEMENT") is made and
entered into as of November 17, 1999 between Baxter International Inc., a
Delaware corporation ("PARENT"), and the undersigned shareholders (each, a
"SHAREHOLDER") of North American Vaccine, Inc., a corporation existing under the
federal laws of Canada ("COMPANY"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings set forth in the Share
Exchange Agreement described below.
RECITALS
WHEREAS, pursuant to a Share Exchange Agreement dated as of
November 17, 1999 by and among Parent, Neptune Acquisition Corp., an unlimited
liability company existing under the laws of the Province of Nova Scotia and a
wholly owned subsidiary of Parent ("ACQUIRECO") and Company (such agreement as
it may be amended is hereinafter referred to as the "SHARE EXCHANGE AGREEMENT"),
Parent has agreed to exchange the outstanding securities of Company pursuant to
an exchange by Acquireco of all of the capital stock of the Company (the
"ARRANGEMENT"), in which each outstanding share of capital stock of Company (the
"COMPANY SHARES") will be exchanged for cash and shares of common stock of
Parent (the "PARENT SHARES") as set forth in the Share Exchange Agreement (the
"TRANSACTION");
WHEREAS, BioChem Pharma Inc. ("BioChem") (formerly known as
IAF BioChem International Inc.), Frost-Nevada, Limited Partnership ("Frost LP"),
IVAX Corporation ("IVAX"), and Phillip Frost, M.D. ("Frost") are parties to a
Shareholders' Agreement dated January 17, 1990 (the "Existing Agreement");
WHEREAS, in order to induce Parent to enter into the Share
Exchange Agreement and consummate the Transaction, Company has agreed to use its
reasonable efforts to cause each shareholder of Company who is an affiliate of
Company to execute and deliver to Parent a Shareholder Agreement upon the terms
set forth herein; and
WHEREAS, each Shareholder is or may become the registered and
beneficial owner (within the meaning of Rule 13d-3 of the Exchange Act) of
capital stock of Company (such shares, other than 714,286 Company Shares owned
by BioChem which are to be transferred to Parent pursuant to the Stock Purchase
Agreement dated the date hereof, hereinafter referred to as the "SHARES").
NOW, THEREFORE, the parties agree as follows:
<PAGE> 2
1. Transfer and Encumbrance. Each Shareholder represents,
warrants and covenants to and with Parent that such Shareholder is the
beneficial owner of the Shares, the Shares constitute the only shares of capital
stock and voting securities of Company beneficially owned by such Shareholder,
to such Shareholder's knowledge, the Shares are, and will be at all times up
until the Expiration Date (as defined in Exhibit I hereto), free and clear of
any liens, claims, options, charges or other encumbrances except as disclosed on
the signature page hereto and shareholder's principal residence or place of
business is accurately set forth on the signature page hereto.
2. New Shares. Each Shareholder agrees that any shares of
capital stock or voting securities of Company that such Shareholder purchases or
with respect to which such Shareholder otherwise acquires beneficial ownership
after the date of this Agreement and prior to the Expiration Date ("NEW SHARES")
shall be subject to the terms and conditions of this Agreement to the same
extent as if they constituted Shares.
3. Agreement to Vote Shares. Prior to the Expiration Date, at
every meeting of the shareholders of Company at which any of the following is
considered or voted upon, and at every adjournment thereof, and on every action
or approval by written resolution of the shareholders of Company with respect to
any of the following, each Shareholder shall vote the Shares and any New Shares
in favor of approval and adoption of the Arrangement Resolution (as defined in
the Share Exchange Agreement) and of the Transaction.
4. Irrevocable Proxy. Each Shareholder hereby agrees to timely
deliver to Parent a duly executed proxy in the form attached hereto as Exhibit I
(the "PROXY"), such Proxy to cover the Shares and all New Shares in respect of
which such Shareholder is entitled to vote at each meeting of the shareholders
of Company (including, without limitation, each written consent in lieu of a
meeting). In the event that a Shareholder is unable to provide any such Proxy in
a timely manner, each Shareholder hereby grants Parent a power of attorney to
execute and deliver such Proxy for and on behalf of such Shareholder, such power
of attorney, which being coupled with an interest, shall survive any death,
disability, bankruptcy, or any other such impediment of such Shareholder. Upon
the execution of this Agreement by such Shareholder, such Shareholder hereby
revokes any and all prior proxies or powers of attorney given by such
Shareholder with respect to the Shares and agrees not to grant any subsequent
proxies or powers of attorney with respect to the Shares until after the
Expiration Date.
5. Representations, Warranties and Covenants of Shareholder.
Each Shareholder hereby represents, warrants and covenants to Parent as follows:
(a) Such Shareholder has full power and legal capacity to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by such Shareholder and constitutes the valid
and binding obligation of such Shareholder, enforceable against such Shareholder
in accordance with its terms except as may be limited by (i) the effect of
bankruptcy, insolvency, conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally, or (ii) the rules
governing the availability of specific performance, injunctive relief or other
equitable remedies and general principles of equity, regardless of whether
considered in a proceeding in equity or at law. To such Shareholder's
2
<PAGE> 3
knowledge, the execution and delivery of this Agreement by such Shareholder does
not, and the performance of such Shareholder's obligations hereunder will not,
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any right
to terminate, amend, accelerate or cancel any right or obligation under, or
result in the creation of any lien or encumbrance on any Shares or New Shares
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which such
Shareholder is a party or by which such Shareholder or the Shares or New Shares
are or will be bound or affected.
(b) Until the Expiration Date, such Shareholder will not (and
will use such Shareholder's reasonable efforts to cause Company, its affiliates,
officers, directors and employees and any investment banker, attorney,
accountant or other agent retained by such Shareholder, Company or any of the
same, not to, except to the extent otherwise permitted under Section 6.04 of the
Share Exchange Agreement): (i) solicit, initiate or encourage (including by way
of furnishing or disclosing nonpublic information) any inquiries or the making
of any proposal or offer (including, without limitation, any proposal or offer
to any shareholders of the Company) that constitutes, or may reasonably be
expected to lead to, any Company Competing Transaction; or (ii) knowingly
encourage or otherwise enter into or maintain or continue discussions or
negotiate with any Person with respect to such inquiries or to obtain a Company
Competing Transaction, or agree to or endorse any agreement, arrangement or
understanding with respect to any Company Competing Transaction. In the event
such Shareholder shall receive or become aware of any Company Competing
Transaction subsequent to the date hereof, such Shareholder shall promptly
inform Parent as to any such matter and the details thereof to the extent
possible without breaching any other agreement to which such Shareholder is a
party or violating its fiduciary duties. Notwithstanding the foregoing, the
provisions of this Section 5(b) shall not be operative for any non-executive
director of Company for so long as such director serves on Company's board of
directors.
(c) Such Shareholder understands and agrees that if such
Shareholder attempts to transfer, vote or provide any other person with the
authority to vote any of the Shares other than in compliance with this
Agreement, Company shall not, and such Shareholder hereby unconditionally and
irrevocably instructs Company to not, permit any such transfer on its books and
records, issue a new certificate representing any of the Shares or record such
vote unless and until Shareholder shall have complied with the terms of this
Agreement.
6. Additional Documents. Each Shareholder hereby covenants and
agrees to execute and deliver any additional documents necessary or desirable,
reasonably necessary and desirable, to carry out the purpose and intent of this
Agreement.
7. Termination. This Agreement and the Proxy delivered in
connection herewith shall terminate and shall have no further force or effect as
of the Expiration Date.
8. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
3
<PAGE> 4
9. Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without the prior written consent of the other. This
Agreement is intended to bind each Shareholder solely as a securityholder of
Company only with respect to the specific matters set forth herein.
10. Amendment and Modification. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
11. Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements
of the Shareholders set forth herein. Therefore, it is agreed that, in addition
to any other remedies that may be available to Parent upon any such violation,
Parent shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity and each Shareholder hereby waives any and all defenses which could
exist in its favor in connection with such enforcement and waives any
requirement for the security or posting of any bond in connection with such
enforcement.
12. Notices. All notices, requests, demands or other
communications that are required or may be given pursuant to the terms of this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed by registered or certified mail, postage prepaid, or
sent by facsimile transmission, as follows:
(a) If to a Shareholder, at the address set forth below such
Shareholder's signature at the end hereof.
(b) if to Parent, to:
Baxter International Inc.
One Baxter Parkway
Deerfield, Illinois 60015
Attention: General Counsel
Facsimile No.: (847) 940-6271
with a copy to:
Brobeck, Phleger & Harrison LLP
1633 Broadway, 47th Floor
New York, NY 10019
Attention: Eric Simonson, Esq.
Facsimile No.: (212) 581-1600
Telephone No.: (212) 586-7878
4
<PAGE> 5
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
13. Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the internal laws of the State of New
York without giving effect to the principles of conflicts of law thereof.
14. Entire Agreement. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
15. Counterpart. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
16. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
17. Suspension of Existing Agreement. By virtue of and
evidenced by the execution of this Agreement, BioChem, Frost LP, IVAX and Frost
(collectively, the "Parties") hereby agree to suspend the Existing Agreement
until the Expiration Date, as defined in the Proxy.
18. Termination of Existing Agreement. By virtue of and
evidenced by the execution of this Agreement, the Parties hereby agree that the
Existing Agreement will terminate on the Effective Date.
19. Company Indebtedness. No later than ten (10) days after
the Effective Date (provided that Company shall have received the requisite
documentation from holders of the promissory notes described below), Parent and
Company shall purchase the Company's outstanding 4.5% Convertible Secured Notes
due November 13, 2003 pursuant to the terms of the Indenture dated as of
November 12, 1998 between Company and Bankers Trust Company, as Trustee.
20. Consent to Assignment. By virtue of and evidenced by the
execution of this Agreement, BioChem hereby consents to the assignment from
Company to Parent, or any subsidiary of Parent, of the surviving rights under
the Technology Transfer Agreement dated January 17, 1990 between BioChem and
Company, which agreement has been terminated, in connection with the
transactions contemplated by the Share Exchange Agreement and effective as of
the Effective Date.
5
<PAGE> 6
21. Guaranty. Parent and the Company will use their respective
commercially reasonable efforts to obtain an extension to the maturity of
indebtedness under the Company's line of credit with Royal Bank of Canada (the
"Line of Credit"). BioChem hereby agrees (i) to maintain in effect and not to
terminate in any respect the Guaranty Agreement dated July 1, 1999 between
BioChem and Royal Bank of Canada until the Effective Date, as defined in the
Proxy, and (ii) to loan to the Company any amounts due under the Line of Credit,
up to an aggregate of $5,000,000, on commercially reasonable terms in the event
the amounts payable under the Line of Credit become due prior to the Effective
Date, as defined in the Proxy. On or promptly after the Effective Date, Parent
and the Company shall (i) terminate the Line of Credit and pay off the amounts
due thereunder, and (ii) repay to BioChem all amounts outstanding under the
Guaranty, the related Suretyship and Subordination of Claims dated as of July 1,
1999 executed by BioChem and BioChem Pharma Holdings Inc. (the "Suretyship") and
any modifications, amendments or extensions of the Guaranty or Suretyship,
together with any accrued interest. Parent hereby indemnifies and holds harmless
BioChem and its officers, directors, affiliates, divisions, subsidiaries,
employees, representatives and agents from and against any judgments, fines,
losses, claims, damages, costs, expenses (including reasonable attorney's fees)
or liabilities arising out of the Guaranty or Suretyship (in each case,
including such modifications, amendments or extensions) or the obligations
thereunder.
IN WITNESS WHEREOF, the parties have caused this Shareholder
Agreement to be executed as of the date first above written.
6
<PAGE> 7
BAXTER INTERNATIONAL INC. BIOCHEM PHARMA INC.
By:
------------------------------ ----------------------------------
Name: (Signature)
------------------------------
Title:
----------------------------
----------------------------------
(Signature)
<PAGE> 8
SHAREHOLDER
---------------------------------------
(Signature)
---------------------------------------
(Signature of Spouse)
---------------------------------------
(Print Name of Shareholder)
---------------------------------------
(Print Street Address)
---------------------------------------
(Print City, State and Zip)
---------------------------------------
(Print Telephone Number)
---------------------------------------
(Social Security or Tax I.D. Number)
<PAGE> 9
SHAREHOLDER
---------------------------------------
(Signature)
---------------------------------------
(Signature of Spouse)
---------------------------------------
(Print Name of Shareholder)
---------------------------------------
(Print Street Address)
---------------------------------------
(Print City, State and Zip)
---------------------------------------
(Print Telephone Number)
---------------------------------------
(Social Security or Tax I.D. Number)
<PAGE> 10
SHAREHOLDER
---------------------------------------
(Signature)
---------------------------------------
(Signature of Spouse)
---------------------------------------
(Print Name of Shareholder)
---------------------------------------
(Print Street Address)
---------------------------------------
(Print City, State and Zip)
---------------------------------------
(Print Telephone Number)
---------------------------------------
(Social Security or Tax I.D. Number)
<PAGE> 11
SHAREHOLDER
---------------------------------------
(Signature)
---------------------------------------
(Signature of Spouse)
---------------------------------------
(Print Name of Shareholder)
---------------------------------------
(Print Street Address)
---------------------------------------
(Print City, State and Zip)
---------------------------------------
(Print Telephone Number)
---------------------------------------
(Social Security or Tax I.D. Number)
<PAGE> 12
SHAREHOLDER
---------------------------------------
(Signature)
---------------------------------------
(Signature of Spouse)
---------------------------------------
(Print Name of Shareholder)
---------------------------------------
(Print Street Address)
---------------------------------------
(Print City, State and Zip)
---------------------------------------
(Print Telephone Number)
---------------------------------------
(Social Security or Tax I.D. Number)
<PAGE> 13
SHAREHOLDER
---------------------------------------
(Signature)
---------------------------------------
(Signature of Spouse)
---------------------------------------
(Print Name of Shareholder)
---------------------------------------
(Print Street Address)
---------------------------------------
(Print City, State and Zip)
---------------------------------------
(Print Telephone Number)
---------------------------------------
(Social Security or Tax I.D. Number)
<PAGE> 14
EXHIBIT I
IRREVOCABLE PROXY
TO VOTE SHARES OF
NORTH AMERICAN VACCINE, INC.
The undersigned shareholder of North American Vaccine, Inc., a
corporation existing under the federal laws of Canada ("COMPANY"), hereby
irrevocably (to the full extent permitted by the Canada Business Corporations
Act) appoints the members of the Board of Directors of Baxter International
Inc., a Delaware corporation ("PARENT"), and each of them, or any other designee
of Parent, as the sole and exclusive attorneys and proxies of the undersigned,
with full power of substitution and resubstitution, to attend and act for and on
behalf of the undersigned at all meetings of shareholders of Company held prior
to the Expiration Date and, without limiting the generality of the foregoing, to
vote and exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock of Company that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of Company issued or
issuable in respect thereof on or after the date hereof (collectively, the
"SHARES") in accordance with the terms of this Irrevocable Proxy. Upon the
undersigned's execution of this Irrevocable Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided
in the Canada Business Corporations Act), is coupled with an interest,
including, but not limited to, that certain Affiliate Letter dated as of even
date herewith by and among Parent, and the undersigned, and is granted in
consideration of Parent entering into that certain Share Exchange Agreement (the
"SHARE EXCHANGE AGREEMENT") by and among Parent, Neptune Acquisition Corp., an
unlimited liability company existing under the laws of the Province of Nova
Scotia and a wholly owned subsidiary of Parent ("ACQUIRECO"), and Company which
Share Exchange Agreement provides for exchange of all of the issued and
outstanding capital stock of Company in exchange for shares of Parent and cash
held by Acquireco (the "ARRANGEMENT"). As used herein, the term "Expiration
Date" shall mean the earliest to occur of (i) such date and time as the
Arrangement shall become effective in accordance with the terms and provisions
of the Share Exchange Agreement, (ii) the date of termination of the Share
Exchange Agreement, (iii) a material breach by Parent of any agreement with the
undersigned shareholder, and (iv) May 31, 2000.
The attorneys and proxies named above, and each of them are
hereby authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to vote the
Shares, and to exercise all voting and other similar rights of the undersigned
with respect to the Shares (including, without limitation, the power to execute
and deliver written consents pursuant to the Canada Business Corporations Act)
to the same extent and with the same power as if the undersigned were personally
present at such meeting, at every annual, special or adjourned meeting of the
shareholders of Company and in
1
<PAGE> 15
every written consent in lieu of such meeting in favor of approval and adoption
of the Arrangement Resolution (as defined in the Share Exchange Agreement), the
Share Exchange Agreement and of the transactions contemplated thereby.
2
<PAGE> 16
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The undersigned
shareholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or
incapacity of the undersigned and any obligation of the undersigned hereunder
shall be binding upon the heirs, personal representatives, successors and
assigns of the undersigned.
This Irrevocable Proxy is coupled with an interest as
aforesaid and is irrevocable.
Dated: November 17, 1999
-------------------------------------
(Signature of Shareholder)
-------------------------------------
(Print Name of Shareholder)
Shares beneficially owned:
shares of Company Common Shares
-----
<PAGE> 1
EXHIBIT 3
BIOCHEM PHARMA AGREES TO SELL ITS STAKE IN NORTH AMERICAN VACCINE TO BAXTER
Laval, Quebec, Canada, Nov. 18/CNW-PRN/ - BioChem Pharma Inc. (NASDAQ:BCHE -
news: ME, TSE: BHC - news) announced today that it has entered into an agreement
with Baxter International Inc (NYSE:BAX - news; "Baxter") to vote in favor of
the acquisition by Baxter of all of the outstanding shares of North American
Vaccine, Inc. (AMEX:NVX - news; "NAVA").
Pursuant to the agreement, Baxter has agreed to exchange each share of NAVA's
common stock for an amount of Baxter common stock and cash having a value of
US$7 per share, based on an average market price of Baxter's shares for a period
prior to closing.
BioChem Pharma is an international biopharmaceutical company dedicated to the
research, development and commercialization of innovative products for the
prevention and treatment of human diseases with a focus in the anti-infective
and anticancer areas.
BioChem Pharma news releases and other company information can be found on the
World Wide Web at www.biochempharma.com.
This press release contains forward-looking statements, which reflect the
Corporation's current expectation regarding future events, including the closing
of Baxter's acquisition of North American Vaccine. The forward-looking
statements involve risks and uncertainties. Actual events could differ
materially from those projected herein and depend on a number of factors.
Investors should consult the Corporation's ongoing quarterly filings, annual
reports and 40-F filings for additional information on risks and uncertainties
relating to these forward-looking statements. The reader is cautioned not to
rely on these forward-looking statements. The Corporation disclaims any
obligation to update these forward-looking statements.
