UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported): March 30, 2000
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NORTH AMERICAN VACCINE, INC.
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(Exact name of registrant as specified in its charter)
Canada 1-10451 98-0121241
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(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
10150 Old Columbia Road Columbia, Maryland 21046
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (410) 309-7100
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(Former name or former address, if changed since last report.)
Exhibit Index is on page 2.
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ITEM 5. OTHER EVENTS.
On March 30, 2000, North American Vaccine, Inc. (the "Company") settled a
lawsuit brought by Sharon Mates, the Company's former President, and issued a
press release announcing the settlement. The March 30 press release is attached
hereto as Exhibit 99.1.
On March 31 and April 7, 10, 12, 14, and 17, 2000, the Company issued
press releases regarding the status of its acquisition by Baxter International,
Inc. ("Baxter") and extensions of the maturity date of the Company's credit
facility with the Bank of America, N.A. The March 31 and April 7, 10, 12, 14,
and 17 press releases are attached hereto as Exhibits 99.2, 99.3, 99.4, 99.5,
99.6, and 99.7, respectively.
The Company signed Amendment No. 1 to the Share Exchange Agreement dated
as of April 17, 2000 which amends the Share Exchange Agreement dated as of
November 17, 1999. Under the terms of the Share Exchange Agreement, as amended,
the Company's shareholders will receive $6.73 per share, comprised of $6.70 of
Baxter common stock and $0.03 in cash. The number of Baxter shares to be issued
to the Company's shareholders under the Share Exchange Agreement, as amended,
will be set based upon the average closing sale price of Baxter common stock for
the ten trading days ending on the fifth trading day prior to consummation of
the transaction.
The transaction continues to be subject to obtaining certain regulatory
approvals, including, among others, approvals under the Canada Business
Corporations Act relating to the proposed transaction and U.K. regulatory
approval of the Company's group C meningococcal conjugate vaccine. The
transaction is also subject to certain other conditions, including satisfaction
of certain production goals, the nonoccurrence of a material adverse change in
the Company's business or performance, and shareholder approval. The Company's
principal shareholders have entered into a Shareholder Agreement, as amended,
with Baxter pursuant to which they have agreed to vote to approve the
transaction. The transaction is expected to close in June, 2000; however, this
is a forward-looking statement and there can be no assurance that the
transaction will close at that time or at all. NAVA has failed to satisfy
certain conditions to closing. Therefore, Baxter has the option, but not the
obligation to complete the transaction.
The Company also signed an Assignment, Acceptance and Amendment Agreement
dated as of April 17, 2000, which, among other things, provides for up to $45
million in funding for the Company operations provided by BioChem Pharma Inc.
("BioChem") and Dr. Phillip Frost ("New Financing"). This financing includes
BioChem assuming the approximately $20 million utilized by the Company under a
line of credit provided by Bank of America, N.A. and guaranteed by Baxter. The
terms of the New Financing include, among other things, a maturity date of June
30, 2000, a rate of interest equal to 15% per annum on the unpaid principal
amount of each loan under the New Financing, a deferred funding fee of up to
$11,250,000, a commitment fee of $50,000, and the release of Baxter as guarantor
of the financing.
The foregoing summary of the Share Exchange Agreement, as amended, the
Shareholder Agreement, as amended, and certain related agreements is qualified
by reference to the copy of the Share Exchange Agreement, as amended, the
Shareholder Agreement, as amended, and the other agreements included as exhibits
9 through 99.11 to this Form 8-K. The Share Exchange Agreement, as amended,
the Shareholder Agreement, as amended, and the other agreements are incorporated
in their entirety in this Item 5 by reference.
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On April 17, 2000, the Company issued a second press release regarding
modification of the Share Exchange Agreement between the Company and Baxter and
establishment of a new credit facility. The second April 17 press release is
attached hereto as Exhibit 99.12.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
99.1. Press release, dated March 30, 2000.
99.2. Press release, dated March 31, 2000.
99.3. Press release, dated April 7, 2000.
99.4. Press release, dated April 10, 2000
99.5. Press release, dated April 12, 2000.
99.6. Press release, dated April 14, 2000.
99.7. Press release No. 1, dated April 17, 2000.
99.8. Amendment No. 1 to Share Exchange Agreement dated as of April 17,
2000.
99.9. Amendment No. 1 to Shareholder Agreement dated as of April 17, 2000,
among Baxter, BioChem, and certain other shareholders of the
Company.
99.10. Amended and Restated Warrant Termination Letter dated April 17,
2000.
99.11. Assignment, Acceptance and Amendment Agreement dated as of April 17,
2000 among the Bank of America, N.A., BioChem, the Company, Baxter,
and Dr. Phillip Frost.
99.12. Press release No. 2, dated April 17, 2000.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NORTH AMERICAN VACCINE, INC.
By: /s/ Lawrence J. Hineline
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Vice President, Finance
Dated: May 9, 2000
RELEASE DATE: 3/30/00
NORTH AMERICAN VACCINE SETTLES MATES LAWSUIT
Columbia, Maryland - March 30, 2000, North American Vaccine (AMEX: NVX)
announced today that it has settled a lawsuit brought by Sharon Mates, the
Company's former President. Terms of the settlement are confidential.
Neil Flanzraich, Chairman of the Board of Directors of North American Vaccine,
stated: "We are pleased to resolve this dispute with Dr. Mates, who was
instrumental in the Company's development. We thank Dr. Mates for her
contributions to the Company and wish her well in her future endeavors."
Under Dr. Mates' leadership, the Company's first product, Certiva(R) was
approved by the Food and Drug Administration (FDA) for marketing in the United
States. Certiva(R) is indicated for active immunization against diphtheria,
tetanus and pertussis in infants and children from 6 weeks to 7 years of age.
With the approval of Certiva(R), North American Vaccine, Inc. has become the
first independent vaccine manufacturer in more than a decade to receive FDA
approval for a new childhood vaccine. A European formulation of Certiva(R)
(Certiva(R)-EU) was approved in several countries in Europe.
Dr. Mates established the development and collaborative programs for the
Company's conjugate vaccines, and guided the development of the Company's
combination vaccines. The first combination vaccine of the Company, combining
its DTaP with an injectable polio vaccine (DTaP-IPV), received marketing
authorization through the European mutual recognition procedure and led to
national product approvals in several European countries.
The lawsuit filed by Dr. Mates in November 1998 included claims against the
Company, two of its directors and an affiliate, BioChem Pharma, Inc. In June
1999, the U.S. District Court in Maryland dismissed all claims alleged in the
litigation. Dr. Mates filed an appeal, which was pending at the time that the
case was settled.
North American Vaccine, Inc. is engaged in the research, development, production
and sales of vaccines for the prevention of human infectious diseases. North
American Vaccine news releases are available on the Company's web site at
http://www.nava.com.
CONTACT: Tom Newberry, Director, Investor Relations, North American Vaccine,
Inc., 10150 Old Columbia Road, Columbia, Maryland 21046 (410) 309-7121.
RELEASE DATE: 3/31/00
BAXTER AGREES TO EXTEND LOAN MATURITY TO APRIL 7 AS DISCUSSIONS CONTINUE
Columbia, Maryland - March 31, 2000, North American Vaccine (AMEX: NVX)
announced today that it is continuing to discuss with Baxter International Inc.
matters in connection with the Share Exchange Agreement. Baxter has proposed
that the parties modify the existing Share Exchange Agreement based on concerns
which include the Company's failure to complete manufacturing of a two month
supply of NeisVac-C(TM) and obtain United Kingdom regulatory approval for
NeisVac-C(TM) prior to the specified April 1 deadline. The Company's Board of
Directors is considering its options during these discussions.
The discussions have involved proposals that include, among other things, a
reduction in the purchase price, the terms under which additional financing
would be available to the Company, an extension of the date by which conditions
to closing are to be satisfied, additional conditions to closing and changes to
existing conditions to closing, the outside date for termination of the Share
Exchange Agreement, and an early termination of the Share Exchange Agreement.
There can be no assurances as to whether the Company and Baxter will reach an
agreement with respect to a mutually acceptable modification to the Share
Exchange Agreement or mutually acceptable termination arrangements or as to the
timing of any such agreement. If the parties are unable to reach such an
agreement and Baxter determines not to waive the conditions to closing which the
Company is unable to meet, Baxter will not be obligated to close on the
acquisition transaction and the Company will continue to be bound by the terms
of the Share Exchange Agreement through at least May 31, 2000. Baxter has
advised the Company that it does not intend to terminate the Share Exchange
Agreement. The parties have agreed to an extension of the maturity of the
Company's credit facility with the Bank of America so that the credit facility
will come due and payable on April 7, 2000 rather than March 31, 2000 in order
to facilitate further discussions by Baxter and the Company. The line of credit
is secured by a pledge of all of the Company's otherwise unencumbered assets.
There can be no assurances that the maturity of the credit facility will be
extended further or that the Company will be able to refinance this indebtedness
or obtain financing for its continued operations. If the Company cannot obtain
financing, there can be no assurance that the Company can continue its
operations for any period of time without seeking bankruptcy protection.
North American Vaccine, Inc. is engaged in the research, development, production
and sales of vaccines for the prevention of human infectious diseases. North
American Vaccine news releases are available on the Company's web site at
http://www.nava.com.
This press release contains certain forward looking statements, which are made
pursuant to the safe harbor provisions of the Securities Litigation Reform Act
of 1995, including discussions on modifying the Share Exchange Agreement,
prospects for completing discussions with Baxter, and prospects for financing.
Investors are cautioned that forward looking statements involve risks and
uncertainties that may affect the Company's business and prospects, including
developing mutually acceptable modifications to the Share Exchange Agreement
with Baxter, successfully completing any contemplated transaction, developing
<PAGE>
alternative financing, and all as discussed in the Company's filings with the
U.S. Securities and Exchange Commission, including its annual reports on Form
10-K, quarterly reports on Form 10-Q and current reports on Form 8-K.
CONTACT: Tom Newberry, Director, Investor Relations, North American Vaccine,
Inc., 10150 Old Columbia Road, Columbia, MD 21046, (410) 309-7121.
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RELEASE DATE: 4/7/00
BAXTER AGREES TO EXTEND LOAN MATURITY TO APRIL 10 AS DISCUSSIONS WITH NORTH
AMERICAN VACCINE CONTINUE
Columbia, Maryland - April 7, 2000, North American Vaccine (AMEX: NVX) announced
today that it is continuing to discuss with Baxter International Inc. matters in
connection with the Share Exchange Agreement. The parties have agreed to a
second extension of the maturity of the Company's credit facility with the Bank
of America so that the credit facility will come due and payable on April 10,
2000 rather than April 7, 2000 in order to facilitate further discussions.
Baxter has proposed that the parties modify the existing Share Exchange
Agreement based on concerns which include the Company's failure to complete
manufacturing of a two month supply of NeisVac-C(TM) and obtain United Kingdom
regulatory approval for NeisVac-C(TM) prior to the specified April 1 deadline.
The Company's Board of Directors is considering its options during these
discussions. There can be no assurances as to whether the Company and Baxter
will reach an agreement with respect to a mutually acceptable modification to
the Share Exchange Agreement or mutually acceptable termination arrangements or
as to the timing of any such agreement.
North American Vaccine, Inc. is engaged in the research, development, production
and sales of vaccines for the prevention of human infectious diseases. North
American Vaccine news releases are available on the Company's web site at
http://www.nava.com.
This press release contains certain forward looking statements, which are made
pursuant to the safe harbor provisions of the Securities Litigation Reform Act
of 1995, including discussions on modifying the Share Exchange Agreement,
prospects for completing discussions with Baxter, and prospects for financing.
Investors are cautioned that forward looking statements involve risks and
uncertainties that may affect the Company's business and prospects, including
developing mutually acceptable modifications to the Share Exchange Agreement
with Baxter, successfully completing any contemplated transaction, developing
alternative financing, and all as discussed in the Company's filings with the
U.S. Securities and Exchange Commission, including its annual reports on Form
10-K, quarterly reports on Form 10-Q and current reports on Form 8-K.
CONTACT: Tom Newberry, Director, Investor Relations, North American Vaccine,
Inc., 10150 Old Columbia Road, Columbia, MD 21046, (410) 309-7121.
RELEASE DATE: 4/10/00
BAXTER AGREES TO EXTEND NORTH AMERICAN VACCINE LOAN MATURITY TO APRIL 12
Columbia, Maryland - April 10, 2000, North American Vaccine (AMEX: NVX)
announced today that it is continuing to discuss with Baxter International Inc.
matters in connection with the Share Exchange Agreement. The parties have agreed
to a third extension of the maturity of the Company's credit facility with the
Bank of America so that the credit facility will come due and payable on April
12, 2000 rather than April 10, 2000 in order to facilitate further discussions.
The Company believes that these discussions will be completed by April 12, 2000.
Baxter has proposed that the parties modify the existing Share Exchange
Agreement based on concerns which include the Company's failure to complete
manufacturing of a two month supply of NeisVac-C(TM) and obtain United Kingdom
regulatory approval for NeisVac-C(TM) prior to the specified April 1 deadline.
The Company's Board of Directors is considering its options during these
discussions. There can be no assurances as to whether the Company and Baxter
will reach an agreement with respect to a mutually acceptable modification to
the Share Exchange Agreement or mutually acceptable termination arrangements or
as to the timing of any such agreement.
North American Vaccine, Inc. is engaged in the research, development, production
and sales of vaccines for the prevention of human infectious diseases. North
American Vaccine news releases are available on the Company's web site at
http://www.nava.com.
This press release contains certain forward looking statements, which are made
pursuant to the safe harbor provisions of the Securities Litigation Reform Act
of 1995, including discussions on modifying the Share Exchange Agreement,
prospects for completing discussions with Baxter, and prospects for financing.
Investors are cautioned that forward looking statements involve risks and
uncertainties that may affect the Company's business and prospects, including
developing mutually acceptable modifications to the Share Exchange Agreement
with Baxter, successfully completing any contemplated transaction, developing
alternative financing, and all as discussed in the Company's filings with the
U.S. Securities and Exchange Commission, including its annual reports on Form
10-K, quarterly reports on Form 10-Q and current reports on Form 8-K.
CONTACT: Tom Newerry, Director, Investor Relations, North American Vaccine,
Inc., 10150 Old Columbia Road, Columbia, MD 21046, 410-309-7121.
RELEASE DATE: 4/12/00
BAXTER AGREES TO EXTEND NORTH AMERICAN VACCINE LOAN MATURITY TO APRIL 13
Columbia, Maryland - April 12, 2000, North American Vaccine (AMEX: NVX)
announced today that it is continuing to discuss with Baxter International
Inc. matters in connection with the Share Exchange Agreement. The parties
have agreed to a fourth extension of the maturity of the Company's credit
facility with the Bank of America so that the credit facility will come
due and payable on April 13, 2000 rather than April 12, 2000 in order to
facilitate further discussions. Baxter has proposed that the parties
modify the existing Share Exchange Agreement based on concerns which
include the Company's failure to complete manufacturing of a two month
supply of NeisVac-C(TM) and obtain United Kingdom regulatory approval for
NeisVac-C(TM) prior to the specified April 1 deadline. The Company's Board
of Directors is considering its options during these discussions. There
can be no assurances as to whether the Company and Baxter will reach an
agreement with respect to a mutually acceptable modification to the Share
Exchange Agreement or mutually acceptable termination arrangements or as
to the timing of any such agreement.
North American Vaccine, Inc. is engaged in the research, development,
production and sales of vaccines for the prevention of human infectious
diseases. North American Vaccine news releases are available on the
Company's web site at http://www.nava.com.
This press release contains certain forward looking statements, which are
made pursuant to the safe harbor provisions of the Securities Litigation
Reform Act of 1995, including discussions on modifying the Share Exchange
Agreement, prospects for completing discussions with Baxter, and prospects
for financing. Investors are cautioned that forward looking statements
involve risks and uncertainties that may affect the Company's business and
prospects, including developing mutually acceptable modifications to the
Share Exchange Agreement with Baxter, successfully completing any
contemplated transaction, developing alternative financing, and all as
discussed in the Company's filings with the U.S. Securities and Exchange
Commission, including its annual reports on Form 10-K, quarterly reports
on Form 10-Q and current reports on Form 8-K.
CONTACT: Tom Newberry, Director, Investor Relations, North American
Vaccine, Inc., 10150 Old Columbia Road, Columbia, MD 21046,
(410)-309-7121.
RELEASE DATE: 4/14/00
BAXTER AGREES TO EXTEND NORTH AMERICAN VACCINE LOAN MATURITY TO APRIL 14
Columbia, Maryland - April 14, 2000, North American Vaccine (AMEX: NVX)
announced today that it is continuing to discuss with Baxter International Inc.
matters in connection with the Share Exchange Agreement. The parties have agreed
to a fifth extension of the maturity of the Company's credit facility with the
Bank of America so that the credit facility will come due and payable on April
14, 2000 rather than April 13, 2000 in order to facilitate further discussions.
Baxter has proposed that the parties modify the existing Share Exchange
Agreement based on concerns which include the Company's failure to complete
manufacturing of a two month supply of NeisVac-C(TM) and obtain United Kingdom
regulatory approval for NeisVac-C(TM) prior to the specified April 1 deadline.
The Company's Board of Directors is considering its options during these
discussions. There can be no assurances as to whether the Company and Baxter
will reach an agreement with respect to a mutually acceptable modification to
the Share Exchange Agreement or mutually acceptable termination arrangements or
as to the timing of any such agreement.
North American Vaccine, Inc. is engaged in the research, development, production
and sales of vaccines for the prevention of human infectious diseases. North
American Vaccine news releases are available on the Company's web site at
http://www.nava.com.
This press release contains certain forward looking statements, which are made
pursuant to the safe harbor provisions of the Securities Litigation Reform Act
of 1995, including discussions on modifying the Share Exchange Agreement,
prospects for completing discussions with Baxter, and prospects for financing.
Investors are cautioned that forward looking statements involve risks and
uncertainties that may affect the Company's business and prospects, including
developing mutually acceptable modifications to the Share Exchange Agreement
with Baxter, successfully completing any contemplated transaction, developing
alternative financing, and all as discussed in the Company's filings with the
U.S. Securities and Exchange Commission, including its annual reports on Form
10-K, quarterly reports on Form 10-Q and current reports on Form 8-K.
CONTACT: Tom Newberry, Director, Investor Relations, North American Vaccine,
Inc., 10150 Old Columbia Road, Columbia, MD 21046, (410)-309-7121.
RELEASE DATE: 4/17/00
BAXTER AGREES TO EXTEND NORTH AMERICAN VACCINE LOAN MATURITY TO APRIL 17
Columbia, Maryland - April 17, 2000, North American Vaccine (AMEX: NVX)
announced today that it is continuing to discuss with Baxter International Inc.
matters in connection with the Share Exchange Agreement. The parties have agreed
to a sixth extension of the maturity of the Company's credit facility with the
Bank of America so that the credit facility will come due and payable on April
17, 2000 rather than April 14, 2000 in order to facilitate further discussions.
Baxter has proposed that the parties modify the existing Share Exchange
Agreement based on concerns which include the Company's failure to complete
manufacturing of a two month supply of NeisVac-C(TM) and obtain United Kingdom
regulatory approval for NeisVac-C(TM) prior to the specified April 1 deadline.
The Company's Board of Directors is considering its options during these
discussions. There can be no assurances as to whether the Company and Baxter
will reach an agreement with respect to a mutually acceptable modification to
the Share Exchange Agreement or mutually acceptable termination arrangements or
as to the timing of any such agreement.
North American Vaccine, Inc. is engaged in the research, development, production
and sales of vaccines for the prevention of human infectious diseases. North
American Vaccine news releases are available on the Company's web site at
http://www.nava.com.
This press release contains certain forward looking statements, which are made
pursuant to the safe harbor provisions of the Securities Litigation Reform Act
of 1995, including discussions on modifying the Share Exchange Agreement,
prospects for completing discussions with Baxter, and prospects for financing.
Investors are cautioned that forward looking statements involve risks and
uncertainties that may affect the Company's business and prospects, including
developing mutually acceptable modifications to the Share Exchange Agreement
with Baxter, successfully completing any contemplated transaction, developing
alternative financing, and all as discussed in the Company's filings with the
U.S. Securities and Exchange Commission, including its annual reports on Form
10-K, quarterly reports on Form 10-Q and current reports on Form 8-K.
CONTACT: Tom Newberry, Director, Investor Relations, North American Vaccine,
Inc., 10150 Old Columbia Road, Columbia, MD 21046, (410)309-7121.
EXECUTION COPY
AMENDMENT NO. 1 TO
SHARE EXCHANGE AGREEMENT
Amendment No. 1 dated as of April 17, 2000 (this "AMENDMENT") to the Share
Exchange Agreement dated as of November 17, 1999 (the "SHARE EXCHANGE
AGREEMENT") among Baxter International Inc., a Delaware corporation ("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 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):
WITNESSETH:
WHEREAS, Parent, Acquireco and Company desire to amend the Share Exchange
Agreement as set forth in this Amendment;
WHEREAS, concurrently with the execution of this Amendment and as an
inducement to Parent and Acquireco to enter into this Amendment: (i) Bank of
America, N.A. ("BOFA") and BioChem Pharma Inc. ("BIOCHEM"), after receipt of a
request and proposal from Company, have agreed to an assignment of BofA's
interest in certain Interim Financing Documents to BioChem and Parent and BofA
and Company have agreed to terminate certain Interim Financing Documents
(including without limitation the Guaranty by Parent on behalf of Company dated
November 1, 1999), in each case substantially on the terms and subject to the
conditions set forth in Exhibit A hereto; (ii) Parent and certain shareholders
of Company have agreed to amend the Company Shareholder Agreement substantially
on the terms and subject to the conditions set forth in Exhibit B hereto
("AMENDMENT NO. 1 TO COMPANY SHAREHOLDER AGREEMENT"); (iii) Parent and Company
have agreed to amend the Technical Services Agreement dated February 4, 2000
substantially on the terms and subject to the conditions set forth in Exhibit C
hereto; and (iv) Parent, BioChem and Company have agreed to amend and restate
the Warrant Termination Letter substantially on the terms and subject to the
conditions set forth in Exhibit D hereto;
WHEREAS, the parties acknowledge that (i) the amendments and modifications
contemplated by this Amendment do not amend or modify the closing conditions
contained in Section 8.03 of the Share Exchange Agreement, (ii) certain closing
conditions contained in Section 8.03 of the Share Exchange Agreement will not be
satisfied by Company in accordance with their terms, (iii) in order to effect
the Arrangement and consummate the transactions contemplated by the Share
Exchange Agreement, Parent would be required to waive such conditions to
closing, (iv) Parent has not granted a waiver, and the execution and delivery by
Parent of this Amendment does not constitute a waiver, of such closing
conditions, and (v) Parent reserves the right, in its sole discretion, to waive
each closing condition contained in Section 8.03 of the Share Exchange
Agreement;
<PAGE>
WHEREAS, the parties acknowledge that, as of the date hereof, (i) the
Registration Statement has not become effective and Company has not mailed the
Proxy Statement to the shareholders of Company, and (ii) such facts do not
constitute a breach of the respective obligations of Parent or Company under
Section 7.01(a) of the Share Exchange Agreement;
WHEREAS, the board of directors of Company has determined that the Share
Exchange Agreement as amended or modified by this Amendment is fair and in the
best interests of the Company and the shareholders of Company;
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. The definition of Interim Financing Documents contained in Section 1.01
is hereby amended and restated to read as follows:
""INTERIM FINANCING DOCUMENTS" shall mean the following documents
dated as of November 1, 1999 and assigned from Bank of America, N.A. to
BioChem Pharma Inc. on April 17, 2000: (i) Letter Loan Agreement
between Bank of America, N.A. ("LENDER") and Company; (ii) Security
Agreement between Lender and Company; (iii) Patent and Trademark
Assignment and Security Agreement between Lender and Company; and (iv)
Assignment, Acceptance and Amendment Agreement dated April 17, 2000
among Company, Dr. Phillip Frost, Bank of America, N.A., BioChem Pharma
Inc. and Parent."
2. Section 3.01(a)(i) of the Share Exchange Agreement is hereby amended
and restated in its entirety to read as follows:
"(i) the fraction of a share (calculated and rounded to the nearest
ten-thousandth of one share) of Common Stock, par value $1.00 per share,
of Parent ("PARENT COMMON STOCK"), (A) the numerator of which fraction
shall be $6.70 (the "SHARE CONSIDERATION"), and (B) the denominator of
which shall be the Parent Stock Price (as defined in Section 3.01(a)(iii)
below); and"
3. Section 3.01(f) of the Share Exchange Agreement is hereby amended and
restated in its entirety to read as follows:
"(f) Immediately following the exchange of shares as contemplated by
this Section 3.01, Company shall increase the stated capital of the
Company Common Shares by an amount equal to the difference between (i) the
product of the number of Company Common Shares exchanged pursuant to this
Section 3.01 multiplied by $6.73 and (ii) the product of the paid-up
capital of an issued and outstanding Company Common Share as determined
pursuant to the Income Tax Act (Canada) immediately prior to the increase
in stated capital pursuant to this Section 3.01(g), multiplied by the
number of Company Common Shares exchanged pursuant to this Section 3.01."
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4. Section 3.01(g) of the Share Exchange Agreement is hereby amended and
restated in its entirety to read as follows:
"(g) Immediately following the exchange of shares as contemplated by
this Section 3.01, the Company shall increase the stated capital of the
Company Preferred Shares by an amount equal to the difference between (i)
the product of the number of Company Preferred Shares exchanged pursuant
to this Section 3.01 multiplied by the number of Company Common Shares
into which each Company Preferred Share is convertible immediately before
the Effective Time multiplied by $6.73 and (ii) the product of the paid-up
capital of an issued and outstanding Company Preferred Share as determined
pursuant to the Income Tax Act (Canada) immediately prior to the increase
in stated capital pursuant to this Section 3.01(g), multiplied by the
number of Company Preferred Shares exchanged pursuant to this Section
3.01."
5. Section 4.08 of the Share Exchange Agreement is hereby amended and
restated in its entirety as follows:
6. "SECTION 4.08 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except for
the transactions contemplated by Amendment No. 1 dated April 17, 2000 to
this Agreement (including the transactions contemplated by the exhibits
thereto), and except as otherwise set forth on Schedule 4.08 - of the
Company Disclosure Schedule, since June 30, 1999, Company and the Company
Subsidiaries have conducted their businesses only in the ordinary course
consistent with past practice and, since such date, there has not been (i)
any Company Material Adverse Effect, (ii) any event that may reasonably be
expected to prevent or materially delay the performance of Company's
obligations pursuant to this Agreement and the completion of the
Arrangement by Company, (iii) any change by Company in its accounting
methods, principles or practices, (iv) any declaration, setting aside or
payment of any dividend or distribution in respect of the Company Common
Shares or any redemption, purchase or other acquisition of any of
Company's securities, (v) any increase in the compensation or benefits or
establishment of any bonus, insurance, severance, deferred compensation,
pension, retirement, profit sharing, stock option (including, without
limitation, the granting of stock options, stock appreciation rights,
performance awards or restricted stock awards), stock purchase or other
employee benefit plan, or any other increase in the compensation payable
or to become payable to any officers, directors or employees of Company or
any Company Subsidiary, (vi) any issuance or sale of any stock, notes,
bonds or other securities other than pursuant to the exercise of
outstanding securities, or entering into any agreement with respect
thereto, (vii) any amendment to the Company's certificate of incorporation
or bylaws, (viii) other than in the ordinary course of business, any (x)
purchase, sale, assignment or transfer of any material assets, (y)
mortgage, pledge or the institution of any Encumbrance on any material
assets or properties, tangible or intangible, except for liens for taxes
not yet delinquent and such other Encumbrances which do not, individually
or in the aggregate, have a Company Material Adverse Effect, or (z) waiver
of any rights of material value or cancellation or any material debts or
claims, (ix) any incurrence of any material liability (absolute or
contingent), except for current liabilities and obligations incurred in
the ordinary course of business consistent with past practice, (x) any
incurrence of any damage, destruction or similar loss, whether or not
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covered by insurance, materially affecting the business or properties of
Company or any Company Subsidiary, or (xi) any entering into any
transaction of a material nature other than in the ordinary course of
business, consistent with past practices."
7. Section 4.18 of the Share Exchange Agreement is hereby amended and
restated in its entirety to read as follows:
"SECTION 4.18 OPINION OF FINANCIAL ADVISOR. Morgan Stanley & Co.
Incorporated ("COMPANY FINANCIAL ADVISOR") has delivered to the board of
directors of Company its opinion, as amended to reflect Amendment No. 1 to
this Agreement dated April 17, 2000, to the effect that the consideration
to be received under the Arrangement by the holders of Company Common
Shares is fair to such holders from a financial point of view."
8. Section 6.01(h) of the Share Exchange Agreement is hereby amended and
restated in its entirety to read as follows:
"increase the compensation payable or to become payable to its
directors, officers, consultants or employees, grant any rights to
severance or termination pay to, or enter into any employment or severance
agreement which provides benefits upon a change in control of Company that
would be triggered by the Arrangement with, any director, officer,
consultant or other employee of Company or any Company Subsidiary who is
not currently entitled to such benefits from the Arrangement, establish,
adopt, enter into or amend any collective bargaining, bonus, profit
sharing, thrift, compensation, stock option, restricted stock, pension,
retirement, deferred compensation, employment, termination, severance or
other plan, agreement, trust, fund, policy or arrangement for the benefit
of any director, officer, consultant or employee of Company or any Company
Subsidiary, except to the extent required by applicable Law or the terms
of a collective bargaining agreement, or enter into or amend any contract,
agreement, commitment or arrangement between Company or any Company
Subsidiary and any of Company's directors, officers, consultants or
employees; provided, HOWEVER, that notwithstanding the foregoing, Company
may, after consultation with Parent, provide additional benefits
(including increases in compensation or bonuses) to key employees to the
extent reasonably necessary to retain such employees until the Effective
Date, provided that (i) in no event shall such benefits in the aggregate
exceed $1,300,000, (ii) such benefits shall be payable to employees on the
earlier to occur of (x) July 15, 2000 or (y) immediately prior to the
Effective Date, and (iii) Company may make commitments to its employees to
provide additional benefits to such employees in the event this Agreement
is terminated and the Arrangement is not completed."
9. Section 7.01(b) of the Share Exchange Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) The Proxy Statement shall include (i) the recommendation of the
board of directors of Company to Company's shareholders that they vote in
favor of approval of the Arrangement Resolution and (ii) the opinion of
4
<PAGE>
Company Financial Advisor, as amended, and referred to in Section 4.18;
PROVIDED, HOWEVER, that the board of directors of Company shall submit the
Arrangement Resolution to Company's shareholders whether or not at any
time subsequent to the date hereof such board determines that it can no
longer make such recommendation, unless this Agreement has been terminated
in accordance with Article IX."
10. Section 9.01(b) of the Share Exchange Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) by either Parent or Company, if the Effective Time shall not
have occurred on or before June 30, 2000, unless the Effective Time shall
not have occurred on or before such date solely because (i) the filing of
the Articles of Arrangement has been postponed in accordance with Section
2.05 or (ii) the Final Order shall not have been received (provided that
the parties shall have submitted the Final Order and Parent shall have
unconditionally agreed to consummate the Arrangement upon receipt of the
Final Order) provided, further, that, in each case, such date shall not be
extended more than fifteen (15) days; PROVIDED, HOWEVER, that the right to
terminate this Agreement under this Section 9.01(b) shall not be available
to any party whose failure to fulfill any obligation under this Agreement
shall have caused, or resulted in, the failure of the Effective Time to
occur on or before such date;"
11. Section 9.01(f) of the Share Exchange Agreement is hereby amended and
restated in its entirety to read as follows:
"(f) by Parent, 10 days after receipt by Company of a written notice
from Parent of (i) a breach of any representation, warranty, covenant or
agreement in any material respect on the part of Company set forth in this
Agreement, or if any representation or warranty of Company shall have
become untrue, incomplete or incorrect in any material respect, in either
case such that the conditions set forth in Section 8.03 would not be
satisfied, or (ii) the occurrence of a Default or Event of Default (as
such terms are defined in the Interim Financing Documents) under the
Interim Financing Documents and the exercise of remedies by the Lender in
connection therewith (each, a "TERMINATING COMPANY BREACH"); PROVIDED,
HOWEVER, that if such Terminating Company Breach is curable by Company
through the exercise of its reasonable efforts within 10 days and for so
long as Company continues to exercise such reasonable efforts, Parent may
not terminate this Agreement under this Section 9.01(f); and PROVIDED,
FURTHER that the preceding proviso shall not in any event be deemed to
extend any date set forth in paragraph (b) of this Section 9.01;"
12. The definition of Company Shareholder Agreement contained in the sixth
recital of the Share Exchange Agreement shall be amended to include Amendment
No. 1 to Company Shareholder Agreement.
13. Annex A to the Share Exchange Agreement is hereby amended and restated
in its entirety to read as set forth in Exhibit E hereto;
5
<PAGE>
14. Notwithstanding anything to the contrary contained in this Amendment
or the Share Exchange Agreement, Parent hereby consents to the execution and
delivery of the Interim Financing Documents, as amended on the date hereof
(including, without limitation, the transfer of the security interests
contemplated by such amendment), PROVIDED, HOWEVER, that Company shall (i)
submit to Parent and BioChem Pharma Inc. on a weekly basis a written estimate of
the proposed expenditures of Company and the Company Subsidiaries for such
period, (ii) provide Parent with written notice at least six (6) business days
prior to incurring any additional indebtedness pursuant to Schedule A, Part I of
the Assignment, Acceptance and Amendment Agreement dated April 17, 2000 among
Company, Dr. Phillip Frost, Bank of America, N.A., BioChem Pharma Inc. and
Parent, and, if Parent offers to provide financing to Company on identical or
more favorable terms to Company, Company will enter into such financing with
Parent rather than with Dr. Phillip Frost, and (iii) provide Parent with written
notice at least two (2) business days prior to incurring any other additional
indebtedness pursuant to the Interim Financing Documents.
15. Company hereby grants to Parent a right of first offer to purchase any
Debt Securities (as hereinafter defined) which Company may, from time to time,
propose to issue between the date hereof and the Effective Date. In the event
Company proposes to issue any Debt Securities, it shall give Parent written
notice of its intention. Parent shall have five (5) business days after any such
notice is effective to deliver a written notice to Company proposing to Company
the material terms under which it would agree to purchase such Debt Securities.
In the event Company does not accept such offer, or if no such offer is made to
Company by Parent, Company shall have twenty (20) days thereafter to enter into
an agreement to issue the Debt Securities respecting which Parent's right of
first offer option set forth in this Section 14 was not accepted, upon terms no
more favorable to the purchaser or lender thereof than specified in Parent's
notice to Company pursuant to this Section 14. In the event Company has not
issued Debt Securities within said twenty (20) day period, Company shall not
thereafter issue or sell any Debt Securities without first giving Parent the
opportunity to purchase such securities from Company in the manner provided in
this Section 14. As used herein, "DEBT SECURITIES" shall mean any line of credit
or evidence of indebtedness of Company other than (i) with respect to trade
payables or (ii) pursuant to the Interim Financing Documents.
16. Notwithstanding anything to the contrary contained in this Amendment
or the Share Exchange Agreement, between the date hereof and the Effective Date,
Company shall use commercially reasonable efforts not to exceed the total
spending projections through June 30, 2000 set forth in the projections
delivered to Parent concurrently herewith as Schedule A to the Company
Disclosure Schedule and to otherwise operate Company's business in accordance
with such projections.
17. This Amendment shall be deemed an amendment to the Share Exchange
Agreement and shall become effective upon the execution by Parent, Acquireco and
Company as required by Section 10.11 of the Share Exchange Agreement. Except as
expressly amended pursuant to this Amendment, the Share Exchange Agreement shall
continue in full force and effect. This Amendment shall not constitute a waiver
of any of Parent's rights under the Share Exchange Agreement, including, without
limitation, any waiver of Parent's conditions to close under the Share Exchange
Agreement or any rights relating to breaches of representations, warranties,
6
<PAGE>
covenants or obligations, if any, by Company prior to the date hereof, or any
other rights related thereto.
18. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK OTHER THAN CONFLICT OF LAWS
PRINCIPLES THEREOF DIRECTING THE APPLICATION OF ANY LAW OTHER THAN THAT OF NEW
YORK.
19. Each party agrees to fulfill in good faith its obligations under the
Share Exchange Agreement, including without limitation this Amendment.
20. This Amendment may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed and delivered shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
BAXTER INTERNATIONAL INC.
By: /s/ Timothy B. Anderson
-----------------------------------
Name: Timothy B. Anderson
Title: Group Vice President,
Corporate Strategy and
Development
NORTH AMERICAN VACCINE, INC.
By: /s/ Randal Chase
-----------------------------------
Name: Randal Chase
Title: President and Chief Executive
Officer
NEPTUNE ACQUISITION CORP.
By: /s/ Freidrich Dorner
-----------------------------------
Name: Dr. Freidrich Dorner
Title: President
8
<PAGE>
Exhibit A
ASSIGNMENT, ACCEPTANCE AND AMENDMENT AGREEMENT
DATED APRIL 17, 2000
Reference is made to the letter loan agreement dated as of November
1, 1999 (as amended, renewed, extended, amended and restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"; the terms defined
therein, unless otherwise defined herein, being used herein as therein defined)
between North American Vaccine, Inc., a Canadian corporation (the "BORROWER"),
and Bank of America, N.A. (the "ORIGINAL LENDER").
WHEREAS, the Original Lender wishes to sell and assign all of its
rights and obligations under the Loan Documents to BioChem Pharma Inc., a
Canadian corporation (the "NEW LENDER"), and the Borrower wishes to consent to
such sale and assignment upon the terms set out herein; and
WHEREAS, upon such sale and assignment, the Original Lender will
release the Guaranty and the Guarantor will release the Reimbursement Agreement
on the terms set out herein.
NOW, THEREFORE, in consideration of the foregoing, and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree, with effect from the Effective Date (as defined in Section 1), as
follows:
1. Upon receipt of the Payoff Amount (as defined below) by the
Original Lender in immediately available funds delivered in accordance with
wiring instructions delivered by the Original Lender to the New Lender (or its
representatives), the Original Lender hereby agrees to sell and assign, without
recourse and without representation or warranty (except as to the
representations and warranties expressly made by Original Lender in paragraph 2
below) to the New Lender, and the New Lender hereby agrees to purchase and
assume from the Original Lender, all of the Original Lender's rights and
obligations under the Credit Agreement and the other Loan Documents. The
Borrower hereby consents to such sale and assignment from the Original Lender to
the New Lender. This Agreement shall become effective on April 17, 2000 (the
"EFFECTIVE DATE"). The aggregate amount owed to the Original Lender with respect
to the Loans (inclusive of principal, interest, commitment fees, other fees,
expense reimbursements and all other amounts owed to the Original Lender in
respect to such indebtedness) through and including the Effective Date is
US$19,549,190.40 (the "PAYOFF AMOUNT"). In the event that the Payoff Amount is
not received on or prior to 4:00 p.m. (Charlotte, North Carolina time) on April
17, 2000, the Loans will continue to accrue interest (at the Base Rate plus 2%)
at a per diem amount of US$5933.58 for each day after April 17, 2000 that the
Original Lender has not received payment in full prior to 4:00 p.m (Charlotte,
North Carolina time) in immediately available funds in accordance with the
wiring instructions delivered by the Original Lender. After giving effect to
<PAGE>
such sale and assignment, the amount of the Loans owing to the New Lender will
be US$19,549,190.40.
2. The Original Lender (i) represents and warrants that it is the
legal and beneficial owner of the interest or interests being assigned by it
hereunder; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with any Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto.
3. The New Lender (i) confirms that it has received a copy of the
Credit Agreement, together with such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Agreement; (ii) agrees that it will, independently and without reliance
upon the Original Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; and (iii) agrees that it
will perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement and the other Loan Documents are required to be
performed by it as the Lender.
4. (i) The New Lender shall be a party to the Credit Agreement and
the other Loan Documents and, to the extent provided in this Agreement, have the
rights and obligations of the Lender thereunder and (ii) the Original Lender
shall, to the extent provided in this Agreement, relinquish its rights and be
released from its obligations under the Credit Agreement and the other Loan
Documents (other than its rights under the Loan Documents that are specified
under the terms of such Loan Documents to survive the payment in full of the
obligations of the Borrower under the Loan Documents to the extent any claim
thereunder relates to an event arising prior to the Effective Date) and the
Original Lender shall cease to be a party thereto.
5. From and after the Effective Date, the Borrower shall make all
payments under the Credit Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the New Lender. The Original Lender and
the New Lender shall make all appropriate adjustments in payments under the
Credit Agreement for periods prior to the Effective Date.
6. On the Effective Date, without any action on the part of the
Guarantor or the Borrower, (i) the Guaranty will be terminated and the Guarantor
unconditionally and irrevocably released, and (ii) the Reimbursement Agreement,
the Security Agreement dated November 1, 1999 between the Guarantor and the
Borrower and the Patent and Trademark Assignment and Security Agreement, dated
November 1, 1999 between the Guarantor and the Borrower will each be terminated
-2-
<PAGE>
and the Borrower unconditionally and irrevocably released. The parties further
agree that the Guarantor is a party to this Agreement solely for the purposes of
this Section 6, and the Guarantor shall have no rights or liabilities under this
Agreement other than those set out in this Section 6 and Sections 12 and 13.
7. Immediately following the sale and assignment under Sections 1 to
5, and the releases and terminations under Section 6, the New Lender, Dr.
Phillip Frost ("FROST") and the Borrower agree that the Credit Agreement shall
be assigned as set forth in Part I of Schedule A and amended as set forth in
Part II of Schedule A.
8. The Borrower represents and warrants to each of the New
Lender and Frost as follows:
(1) the representations and warranties contained in each Loan
Document are correct on and as of the date hereof, after
giving effect to this Agreement, as though made on and as of
the date hereof, other than any such representations or
warranties that by their terms, refer to a specific date, in
which case, as of such specific date; and
(2) no Default or Event of Default which has not been waived has
occurred and is continuing under the Credit Agreement, as
amended hereby, or would result from this Agreement or the
consummation of the transactions contemplated hereby.
9. Without prejudice to any Default or Event of Default
arising after the date hereof:
(3) with respect to any Default or Event of Default (other than
one under Section 5(k) of the Credit Agreement) which is
continuing, which event does not have a grace or cure period
and which event arose on or before the date hereof, the New
Lender and Frost hereby waive their respective rights under
the last paragraph of Section 5 of the Credit Agreement; and
(4) with respect to any Default or Event of Default (other than
one under Section 5(k) of the Credit Agreement) which is
continuing, which event has a grace or cure period and which
event arose on or before the date hereof, such grace or cure
period shall be deemed to commence on the date hereof.
10. (a) Each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words like
import referring to the Credit Agreement, and each
reference in each of the other Loan Documents to "the
Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement,
-3-
<PAGE>
shall mean and be a reference to the Credit
Agreement, as amended by this Agreement.
1 The Credit Agreement and each of the other Loan
Documents, as specifically amended by this Agreement,
are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed.
(2) The execution, delivery and effectiveness of this
Agreement shall not, except as expressly provided
herein, operate as a waiver of any right, power or
remedy by the New Lender under any of the Loan
Documents, nor constitute a waiver of any provision of
any of the Loan Documents.
(a) This Agreement shall become effective on the Effective
Date; provided that the Effective Date shall be deemed
modified to be the actual date of the sale and
assignment to the extent the parties do not close on
April 17, 2000.
(b) The Borrower agrees to pay on demand all costs and
expenses of the Original Lender and the New Lender in
connection with the preparation, execution, delivery
and administration, modification and amendment of
this Agreement and the other instruments and
documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses
of counsel for the Original Lender and the New
Lender) in accordance with the terms of Section 6(i)
of the Credit Agreement. In addition, the Borrower
shall pay any and all stamp and other taxes payable
or determined to be payable in connection with the
execution and delivery of this Agreement and the
other instruments and documents to be delivered
hereunder, and agrees to hold the New Lender harmless
from and against any and all liabilities with respect
to or resulting from any delay in paying or omission
to pay such taxes.
(c) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(d) This Agreement may be executed in any number of
counterparts and by different parties hereto in
separate counterparts, each of which when so executed
shall be deemed to be an original and all of which
taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of
this Agreement by telecopier shall be effective as
delivery of an original executed counterpart of this
Agreement.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers.
THE ORIGINAL LENDER
BANK OF AMERICA, N.A. as Original Lender
By:
--------------------------------------
Title:
Date:
THE NEW LENDER
BIOCHEM PHARMA INC. as New Lender
By:
--------------------------------------
Title:
Date:
By:
--------------------------------------
Title:
Date:
THE BORROWER
NORTH AMERICAN VACCINE, INC. as Borrower
By:
--------------------------------------
Title:
Date:
-5-
<PAGE>
THE GUARANTOR
BAXTER INTERNATIONAL INC. as Guarantor
By:
--------------------------------------
Title:
Date:
FROST
----------------------------------------
Dr. Phillip Frost
Date:
-6-
<PAGE>
SCHEDULE A
PART I
ASSIGNMENT OF CREDIT AGREEMENT
1. In consideration of the sum of US$1 paid by Frost to the New
Lender (the receipt and sufficiency of which is hereby acknowledged), the New
Lender hereby sells and assigns, without recourse except as to the
representations and warranties made by it herein, to Frost, and Frost hereby
purchases and assumes from the New Lender, an interest in and to the New
Lender's rights and obligations under the Credit Agreement as of the date hereof
as specified below:
Amount of Commitment Assigned: $5,000,000
Amount of Loans Assigned: $0
After giving effect to such sale and assignment, the amount of the Loans owing
to the New Lender will be US$19,549,190.40.
2. The New Lender (i) represents and warrants that it is the legal
and beneficial owner of the interest or interests being assigned by it under the
Assignment, Acceptance and Amendment Agreement dated April 17, 2000 and that
such interest or interests are free and clear of any adverse claim; (ii) makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
and (iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document or
any other instrument or document furnished pursuant thereto.
3. Frost (i) confirms that he has received a copy of the Credit
Agreement, together with such other documents and information as he has deemed
appropriate to make his own credit analysis and decision to enter into this
Agreement; (ii) agrees that he will, independently and without reliance upon the
New Lender and based on such documents and information as he shall deem
appropriate at the time, continue to make his own credit decisions in taking or
not taking action under the Credit Agreement; and (iii) agrees that he will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by him as the Lender to the
extent of the obligations assumed by him under this Agreement.
4. (i) Frost shall be a party to the Credit Agreement and, to the
extent provided in this Agreement, have the rights and obligations of the Lender
thereunder and (ii) the New Lender shall, to the extent provided in this
A-1
<PAGE>
Agreement, relinquish its rights and be released from its obligations under the
Credit Agreement (other than its rights and obligations under the Loan Documents
that are specified under the terms of such Loan Documents to survive the payment
in full of the obligations of the Borrower under the Loan Documents to the
extent any claim thereunder relates to an event arising prior to the Effective
Date).
5. The Borrower shall make all payments under the Credit Agreement
in respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect thereto) to
Frost.
6. It is the intention of the New Lender, the Borrower and Frost
that Frost shall not have any right or interest in or to any of the Security
Agreement, the IP Security Agreement and the Pledge Agreement (the "SECURITY
DOCUMENTS"). The New Lender agrees with Frost that, to the extent the New Lender
receives or realizes any proceeds under or in respect of the Security Documents
or the collateral covered thereby or subject thereto, the New Lender shall,
after deduction of all reasonable costs and expenses incurred by the New Lender
in the realization of such proceeds, pay to Frost an amount equal to Frost's
Share of such net proceeds. For the purpose of this paragraph, "FROST'S SHARE"
shall mean the result (expressed as a percentage) of dividing the aggregate
outstanding principal amount of Loans made by Frost by the aggregate outstanding
principal amount of all Loans made by the New Lender and Frost, in each case
calculated on the date of receipt of such proceeds by the New Lender. New Lender
covenants and agrees for the benefit of Frost that, upon the occurrence and
during the continuance of an Event of Default under the Credit Agreement, it
will take all commercially reasonable action to enforce the Lender's rights
thereunder.
A-2
<PAGE>
SCHEDULE A
PART II
AMENDMENTS TO CREDIT AGREEMENT
3. In the first paragraph, the words "BANK OF AMERICA, N.A. ("LENDER")
is" shall be deleted and replaced with the words "BIOCHEM PHARMA
INC. ("LENDER") and DR. PHILLIP FROST ("FROST") are"
4. Section 1(a) (other than the heading) shall be deleted in its
entirety and replaced with the words:
"Subject to the terms and conditions set forth herein, Lender and
Frost, on a several (and not joint) basis, agree to make available
to Borrower until the Maturity Date a revolving line of credit
providing for loans ("LOANS") in an aggregate principal amount not
exceeding at any time US$45,000,000; PROVIDED, HOWEVER, Lender shall
not be obligated to make Loans in an aggregate principal amount
exceeding US$40,000,000 (the "BIOCHEM COMMITMENT") and Frost shall
not be obligated to make Loans in an aggregate principal amount
exceeding US$5,000,000 (the "FROST COMMITMENT", and together with
the BioChem Commitment, the "COMMITMENTS" and each a "COMMITMENT ")
and PROVIDED FURTHER, HOWEVER, that Frost shall not, and shall not
be obligated to, make any Loans hereunder until the BioChem
Commitment has been drawn down in full by the Borrower and remains
outstanding. Subject to the foregoing limits, Borrower may borrow,
repay and reborrow Loans with until the Maturity Date.".
5. Section 1(b) (other than the heading) shall be deleted in its
entirety and replaced with the words:
"Borrower may request that Loans be made by irrevocable notice to be
received by Lender or Frost (as the case may be) not later than
11:00 a.m. on the third Business Day before the day of the proposed
Loan, or such shorter period as Lender or Frost (as the case may be)
may agree. Such request may not be made as more frequently than
weekly, and shall be accompanied by details of the proposed use by
Borrower of such Loan.".
6. The first two paragraphs of Section 1(c) (other than the heading)
shall be deleted in their entirety and replaced with the words:
"Interest on the unpaid principal amount of each Loan shall accrue
monthly from the date of the making thereof until the principal
amount thereof shall be repaid in full at a rate of 15% per annum
and shall be payable monthly in arrears and on the repayment or
maturity of each Loan, by acceleration or otherwise.".
A-3
<PAGE>
7. In Section 1(c), in the third paragraph, the words "Base Rate" shall
be deleted and replaced with the words "rate specified in the
preceding paragraph".
8. In Section 1(c), in the fourth paragraph, after the word "Lender"
the words "or Frost" shall be added.
9. In Section 1(d) the first sentence shall be deleted in its entirety
and replaced with the words:
"The Loans and all payments thereon shall be evidenced by Lender's
and Frost's (as the case may be) loan accounts and records;
PROVIDED, HOWEVER, that upon the request of Lender or Frost (as the
case may be), the Loans of Lender or Frost (as the case may be) may
be evidenced by grid promissory notes (each a "NOTE") in the form of
EXHIBIT B hereto, instead of or in addition to such loan accounts
and records.".
10. In Section 1(e), paragraphs (i) and (ii) shall be deleted in their
entirety and replaced with the words:
"(i) BIOCHEM DEFERRED FUNDING FEE. The Borrower shall pay to
Lender a deferred funding fee of $10,000,000 on the Maturity Date.
(ii) FROST DEFERRED FUNDING FEE. Providing at least one Loan has
been made by Frost on or before the Maturity Date, the Borrower
shall pay to Frost a non-assignable and non-transferrable deferred
funding fee of $1,250,000 on the Maturity Date.
(iii) FROST COMMITMENT FEE. If no Loan has been made by Frost on
or before the Maturity Date, the Borrower shall pay to Frost a
commitment fee of $50,000 on the Maturity Date.".
11. In Section 1(f), the second paragraph shall be deleted in its
entirety and replaced with the words:
"Borrower shall make (i) all payments to Lender required hereunder
not later than 1 p.m. on the date of payment in same day funds in
United States Dollars to the bank of Lender located at Royal Bank of
Canada, 3100 Le Carrefour Blvd, Laval, Quebec Canada, H7T 2K2,
transit number: 02301, account number: 406-610-6 or such other bank
or address as Lender may from time to time designate in writing and
(ii) all payments to Frost required hereunder not later than 1 p.m.
on the date of payment in same day funds in United States Dollars to
the bank of Frost located at such bank or address as Frost may from
time to time designate in writing.".
A-4
<PAGE>
12. In Section 1(f):
(1) in the third paragraph, each occurrence of the word "Lender"
shall be deleted and replaced with the words "Lender or Frost
(as the case may be)"; and
(2) in line fourteen, after the words "is organized" the words "or
resident" shall be added.
13. Section 1(g) shall be deleted in its entirety and replaced with the
words:
"PREPAYMENTS. Borrower may, upon same-day notice, prepay the Loans
on any Business Day. Prepayments must be accompanied by a payment of
interest on the amount so prepaid. Prepayments must be in a
principal amount of at least $500,000 or a multiple of $100,000 in
excess thereof. If any prepayment is made at a time when Loans from
Lender and Frost are outstanding, such prepayment of principal and
interest shall be paid to Lender and Frost pro rata to the aggregate
outstanding amount of their respective Loans".
14. In Section 2(c), paragraph (i), the words "and Guarantor" shall be
deleted and replaced with the words "or Frost".
15. In Section 3, in the first line, after the word "Lender" the words
"and Frost" shall be added.
16. In Section 3(f):
(1) in the first line, the word "solely" shall be deleted; and
(2) in the second line, after the word "Borrower" the words "or
for such other purposes as Lender or Frost (as the case may
be) may approve" shall be added.
17. In Section 3(j), in the first line, after the word "Lender" the
words "or Frost" shall be added.
18. In Section 3(l) the words "and Guarantor" shall be deleted.
19. In Section 4(a), in the first line, after the word "Lender" the
words "and, if Frost shall so request, to Frost" shall be added.
20. Section 4(b)(ii) shall be deleted in its entirety and replaced with
the words:
A-5
<PAGE>
"(ii) comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation,
compliance with ERISA, the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of
1970, Environmental Laws and Environmental Permits, in each
case the violation of which could result in a Material Adverse
Effect.".
21. In Section 4(b)(v) after the word "Lender" the words "and Frost"
shall be added.
22. In Section 4(b)(vi):
(1) in the first line, the words "and (B)" shall be deleted and
replaced with the words ", (B) all of its stock and other
collateral subject to the Pledge Agreement and (C);
(2) in the fourth line, after the word "Lender" the words "and
Frost" shall be added;
(3) in the fifth line, after the words "IP Security Agreement" the
words ", the Pledge Agreement" shall be added; and
(4) in the last line, the word "and" shall be deleted.
23. In Section 4(b)(vii) the full stop at the end shall be deleted and
replaced with the words "; and", and the following paragraphs shall
be added:
"(viii) preserve and maintain its existence and legal structure,
provided, however, that the Borrower and its Subsidiaries
may consummate any merger or consolidation permitted under
Section 4(c) (iii); and
(vix) keep true records and books of account in which entries
will be made of all dealings or transactions in relation to
its business and affairs in accordance with generally
accepted accounting principles, to the extent applicable,
applied on a consistent basis.".
24. In Section 4(c)(i) the full stop at the end shall be deleted and
replaced with the words " and (C) Indebtedness in an aggregate
amount of up to $5,000,000 provided such Indebtedness is
subordinated to the Indebtedness under the Loan Documents in a
manner reasonably satisfactory to Lender and Frost".
25. In Section 4(c), paragraph (iii), the words "(other than Guarantor
or any Affiliate Guarantor)" shall be deleted.
26. After Section 4(c)(xii) the following paragraphs shall be added:
A-6
<PAGE>
"(xiii) ORGANIZATIONAL DOCUMENTS. Amend, modify, restate or
supplement its Certificate of Incorporation or Bylaws if
such action could reasonably be expected to adversely
affect the rights of the Lender under the Credit Agreement,
the IP Security Agreement, the Pledge Agreement or the
Security Agreement.
(xiv) SUBSIDIARIES. Form, create or acquire any Subsidiary or
permit any Person other than the Borrower or a wholly owned
Subsidiary to hold an equity interest in any Subsidiary,
other than pursuant to the Pledge Agreement.
(xv) PARTNERSHIPS, ETC. Become a general partner in any general
or limited partnership or joint venture other than any
Subsidiary the sole assets of which consist of its interest
in such partnership or joint venture."
27. In Section 5(g) after each occurrence of the word "Lender" the words
"and Frost" shall be added.
28. Section 5(h) shall be deleted in its entirety and replaced with the
words "Intentionally Omitted".
29. In Section 5(m) after the words "any party thereto" the words "or
terminated automatically in accordance with its terms; PROVIDED,
HOWEVER, that (i) if the date by when the Effective Time (as defined
in the North American Vaccine Acquisition Agreement) shall have
occurred has been extended pursuant to Section 9.01(b) of the North
American Vaccine Acquisition Agreement, it shall not be an Event of
Default under this Section 5(m) until such extended date; or (ii) in
any other circumstance, it shall not be an Event of Default under
this Section 5(m) until 15 calendar days have elapsed" shall be
added.
30. In Section 5(o) the full stop at the end shall be deleted and
replaced with the words "; or", and the following paragraph shall be
added:
"(p) Rejection by UK authorities of NeisVac-C(TM)application.".
31. In the last paragraph of Section 5:
(1) the words "Upon the occurrence of an Event of Default, Lender
may declare the Commitment to be terminated, whereupon the
Commitment shall be terminated," shall be deleted and replaced
with the words:
"Upon the occurrence of an Event of Default, which Event of
Default (other than any of the events specified in Sections
5(i),(j) or (m) above)) has not been cured within 10 calendar
A-7
<PAGE>
days thereof, Lender or Frost may declare its or his
respective Commitment to be terminated, whereupon such
Commitment shall be terminated,"; and
(2) in line eight, the word "Commitment" shall be deleted and
replaced with the word "Commitments".
32. In Section 6(b) the words "Charlotte, North Carolina" shall be
deleted and replaced with the words "Quebec, Canada".
33. Sections 6(c) and (d) shall be deleted in their entirety and
replaced with the words "Intentionally Omitted".
34. In Section 6(f):
(1) in the second line, after the word "Lender" the words "or
Frost (as the case may be)" shall be added;
(2) in the fourth line, after the word "Lender" the words "and
Frost" shall be added; and
(3) in the second line, after the word "Lender" the words "or
Frost (as the case may be)" shall be added.
35. In Section 6(h):
(1) in the third line, after the word "LENDER" the words "OR FROST
(AS THE CASE MAY BE)" shall be added;
(2) in the ninth line, the words "(B) GUARANTOR OR (C)" shall be
deleted and replaced with the words "OR (B)"; and
(3) the final two sentences shall be deleted and replaced with the
words:
"Borrower agrees to execute any documents reasonably requested
by Lender or Frost (as the case may be) in connection with any
such assignment. All information provided by or on behalf of
Borrower to Lender or its affiliates or Frost may be furnished
by Lender or Frost to Lender's affiliates and to any actual or
proposed assignee or participant.".
36. In Section 6(i) after each occurrence of the word "Lender" the words
"or Frost (as the case may be)" shall be added.
A-8
<PAGE>
37. In Section 6(m) the word "AND LENDER" shall be deleted and replaced
with the words ", LENDER AND FROST" shall be added.
38. In Exhibit A, the following definitions shall be deleted:
Base Rate
Base Rate Loan
Breakage Costs
Federal Funds Rate
Guaranty Event of Default
Guaranty Obligation
Interest Period
Loan Documents
Maturity Date
Offshore Rate
Offshore Rate Loan;
and the following definitions shall be added:
Environmental Law: Any Federal, state, local or foreign
statute, law, ordinance, rule,
regulation, code, order, writ, judgment,
injunction or decree or any judicial or
agency interpretation, policy or guidance
(in the case of the latter, only to the
extent compliance is legally compulsory)
relating to pollution or protection of
the environment, health, safety or
natural resources, including, without
limitation, those relating to the use,
handling, transportation, treatment,
storage, disposal, release or discharge
of Hazardous Materials.
Environmental Permit: Any permit, approval, identification
number, license or other authorization
required under any Environmental Law.
Hazardous Materials: (a) Petroleum or petroleum products,
by-products or breakdown products,
radioactive materials,
asbestos-containing materials,
polychlorinated biphenyls and radon gas
and (b) any other chemical, materials or
substances designated, classified or
regulated as hazardous or toxic or as a
pollutant or contaminant under any
Environmental Law.
Loan Documents: This Agreement, the Security Agreement,
the IP Security Agreement, the Pledge
Agreement and any promissory note,
A-9
<PAGE>
certificate, fee letter, financing
statement and other instrument, document
or agreement delivered in connection with
this Agreement or the Security Agreement
or the IP Security Agreement or the
Pledge Agreement.
Maturity Date: June 30, 2000, or such earlier date on
which the Commitments may terminate in
accordance with the terms hereof,
provided, HOWEVER, that (i) if the date
by when the Effective Time (as defined in
the North American Vaccine Acquisition
Agreement) shall have occurred has been
extended pursuant to Section 9.01(b) of
the North American Vaccine Acquisition
Agreement to a date after June 30, 2000,
the Maturity Date shall be deemed to be
extended to such later date, or (ii) if a
Default under Section 5(m) has occurred
and the grace period under such Section
has not expired on or before June 30,
2000, the Maturity Date shall be deemed
to be extended to the end of such grace
period.
Pledge Agreement: The Pledge Agreement, if any, between the
Borrower and Lender with respect to
certain stock of Borrower and its
Subsidiaries.
39. In Exhibit A, in the definition of Business Day:
(1) the words "State of North Carolina" shall be deleted and
replaced with the words "Quebec, Canada"; and
(2) the words "and, if such day relates to any Offshore Rate Loan,
means any such day on which dealings in dollar deposits are
conducted by and between banks in the offshore dollar
interbank market" shall be deleted.
40. In Exhibit A, in the definition of Change of Control, the full stop
at the end shall be deleted and replace with the words "or (d) upon
the completion of the North American Vaccine Acquisition."
41. In Exhibit A, in the definition of North American Vaccine
Acquisition Agreement, the words "Agreement and Plan of Merger to
be" shall be deleted and replaced with the words "Share Exchange
Agreement dated as of November 17, 1999, as amended by Amendment No.
1 to Share Exchange Agreement dated as of April 17, 2000".
A-10
<PAGE>
42. In Exhibit A, in the definition of Principal Shareholder, the words
"Guarantor," shall be deleted.
43. Exhibit B shall be deleted in its entirety and replaced with the
attached Exhibit.
*
A-11
<PAGE>
EXHIBIT TO SCHEDULE A TO ASSIGNMENT,
ACCEPTANCE AND AMENDMENT AGREEMENT
FORM OF PROMISSORY NOTE
$[40][5],000,000 Dated: April __, 2000
FOR VALUE RECEIVED, the undersigned, NORTH AMERICAN VACCINE, INC., a
Canadian corporation ("BORROWER"), hereby promises to pay to the order of
[BIOCHEM PHARMA INC. ("LENDER")] [DR. PHILLIP FROST ("FROST")] the principal sum
of [FORTY] [FIVE] Million Dollars (US$ [40] [5],000,000) or, if less, the
aggregate unpaid principal amount of all Loans made by [LENDER] [FROST] to
Borrower pursuant to the letter agreement dated as of November 1, 1999 between
Borrower and Bank of America, N.A.("BOA"), as assigned and amended pursuant to
the assignment, acceptance and amendment agreement dated April ___, 2000 between
Borrower, Lender, Frost, BoA and Baxter International Inc. (as so assigned and
amended, and as it may be otherwise amended, restated, extended, supplemented or
otherwise modified from time to time, the "AGREEMENT") on the Maturity Date.
[Lender][Frost] is authorized to endorse the amount and the date of
each Loan made by [Lender][Frost] and each payment of principal with respect
thereto on the schedule annexed hereto and made a part hereof, or on
continuations thereof which shall be attached hereto and made a part hereof;
PROVIDED that any failure to so endorse such information on such schedule or
continuation thereof or any error in doing so shall not limit or otherwise
affect any obligation of Borrower under the Agreement or this promissory note.
This promissory note is one of the Notes referred to in, and is
entitled to the benefits of, the Agreement, which Agreement, among other things,
contains provisions for acceleration of the maturity of the Loans evidenced
hereby upon the happening of certain stated events and also for prepayments on
account of principal of the Loans prior to the maturity thereof upon the terms
and conditions therein specified.
Unless otherwise defined herein, terms defined in the Agreement are
used herein with their defined meanings therein. This promissory note shall be
governed by, and construed in accordance with, the laws of the State of New
York.
NORTH AMERICAN VACCINE, INC.
By: ___________________________
Name:
Title:
A-12
<PAGE>
<TABLE>
<CAPTION>
ADVANCES AND PAYMENTS OF PRINCIPAL
=============================================================================================================
AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL PAID PRINCIPAL NOTATION
DATE LOAN OR PREPAID BALANCE MADE BY
<S> <C> <C> <C> <C>
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- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
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A-13
</TABLE>
<PAGE>
Exhibit B
AMENDMENT NO. 1 TO
SHAREHOLDER AGREEMENT
Amendment No. 1 dated as of April 17, 2000 (this "AMENDMENT") to the
Shareholder Agreement dated as of November 17, 1999 (the "SHAREHOLDER
AGREEMENT") among 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").
RECITALS
WHEREAS, Parent and the Shareholders desire to amend the Shareholder
Agreement as set forth in this Amendment;
WHEREAS, concurrently with the execution of this Amendment, Parent,
Company and 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"), have entered into Amendment No. 1 to the Share Exchange
Agreement dated as of November 17, 1999 among Parent, Acquireco and Company;
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. The first recital of the Shareholder Agreement is hereby
amended and restated in its entirety to read as follows:
"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, as amended by Amendment
No. 1 dated as of April 17, 2000 (such agreement, as so 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");"
2. This Amendment shall be deemed an amendment to the Shareholder
Agreement and shall become effective when executed by Parent and the
Shareholders as required by Section 10 of the Shareholder Agreement. Except as
<PAGE>
expressly amended pursuant to this Amendment, the Shareholder Agreement shall
continue in full force and effect.
3. This Amendment 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.
4. This Amendment 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
BAXTER INTERNATIONAL INC.
By:
------------------------------
Name:
Title:
BIOCHEM PHARMA INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
FROST-NEVADA LIMITED PARTNERSHIP
By:
------------------------------
Name:
Title:
<PAGE>
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)
IVAX CORPORATION
By:
------------------------------
Name:
Title:
<PAGE>
Exhibit C
AMENDMENT NO. 1 TO
TECHNICAL ASSISTANCE AGREEMENT
Amendment No. 1 dated as of April 17, 2000 (this "AMENDMENT") to the
Technical Assistance Agreement dated as of February 4, 2000 (the "TECHNICAL
ASSISTANCE AGREEMENT") between Baxter International Inc., a Delaware corporation
("BAXTER"), and North American Vaccine Inc., a corporation existing under the
federal laws of Canada ("NAVA").
RECITALS
WHEREAS, Baxter and NAVA desire to amend the Technical Assistance
Agreement as set forth in this Amendment;
WHEREAS, concurrently with the execution of this Amendment, Baxter,
NAVA and Neptune Acquisition Corp., an unlimited liability company existing
under the laws of the Province of Nova Scotia and a wholly owned subsidiary of
Baxter ("ACQUIRECO"), have entered into Amendment No. 1 to the Share Exchange
Agreement dated as of November 17, 1999 among Baxter, Acquireco and NAVA;
NOW, THEREFORE, in consideration of the foregoing, and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. The first recital of the Technical Assistance Agreement is
hereby amended and restated in its entirety to read as follows:
"WHEREAS, Baxter, NAVA and a wholly owned subsidiary of Baxter
have entered into a Share Exchange Agreement, dated as of November
17, 1999, as amended by Amendment No. 1 dated April 17, 2000 (such
agreement, as so amended, is hereinafter referred to as the "SHARE
EXCHANGE AGREEMENT"), pursuant to which the parties have agreed to
enter into an arrangement which will result in NAVA becoming a wholly
owned subsidiary of Baxter; and"
2. Schedule 1.01 to the Technical Assistance Agreement is hereby
amended to include the following at the end of such schedule:
"Notwithstanding the foregoing, it is understood and agreed by
Baxter and NAVA that Baxter may, at its option but upon request of
NAVA, provide the services of such number of individuals as
reasonably determined by Baxter for the purpose of providing
consulting services to NAVA with respect to any and all aspects of
NAVA's business. Such individuals shall have complete, unrestricted
<PAGE>
access to NAVA's operations, premises and personnel at all times
during the term of this Agreement."
3. This Amendment shall be deemed an amendment to the Technical
Assistance Agreement and shall become effective when executed by Baxter and NAVA
as required by Section 6.06 of the Technical Assistance Agreement. Except as
expressly amended pursuant to this Amendment, the Technical Assistance Agreement
shall continue in full force and effect.
4. This Amendment 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.
5. This Amendment 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first written above by their respective
officers thereunto duly authorized.
BAXTER INTERNATIONAL INC.
By:
------------------------------
Name:
Title:
NORTH AMERICAN VACCINE, INC.
By:
------------------------------
Name:
Title:
2
<PAGE>
Exhibit D
April 17, 2000
North American Vaccine, Inc.
10150 Old Columbia Road
Columbia, Maryland 21046
Attention: President
Baxter International Inc.
One Baxter Parkway
Deerfield, Illinois 60015
Attention: General Counsel
Dear Sirs:
Reference is made to the Warrant No. W-1 dated July 21, 1999
of North American Vaccine, Inc. (the "COMPANY") registered in the name of
BioChem Pharma Inc. ("BCPI") for the purchase of 250,000 common shares, no par
value, of the Company (the "COMPANY SHARES"), Warrant No. W-2 dated August 26,
1999 of the Company registered in the name of BCPI for the purchase of 250,000
Company Shares and Warrant No. W-3 dated October 28, 1999 of the Company
registered in the name of BCPI for the purchase of 250,000 Company Shares
(collectively, the "WARRANTS").
In order to induce Baxter International Inc., a Delaware
corporation ("PARENT") to enter into the Share Exchange Agreement dated as of
November 17, 1999, as amended by Amendment No. 1 dated as of April 17, 2000
(such agreement, as so amended, is hereinafter referred to as the "SHARE
EXCHANGE AGREEMENT") 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, and Company, and in consideration of the
payment by Parent of the amount determined in accordance with Section 3.03(b) of
the Share Exchange Agreement, BCPI hereby agrees, subject to the consummation of
the transactions contemplated by the Share Exchange Agreement, as follows:
(i) the Warrants shall terminate and be of no further force or
effect as of the Effective Time (as defined in the Share Exchange Agreement)
without any further action on the part of Company or BCPI; and
(ii) BCPI hereby waives, effective as of the Effective Time,
any and all rights it has or may have under the Warrants, including, without
limitation, the right to receive shares of capital stock of Parent as a result
of the transactions contemplated by the Share Exchange Agreement.
BIOCHEM PHARMA INC.
By
------------------------------
Name: Dr. Francesco Bellini
Title: Chief Executive Officer
By
------------------------------
Name: Charles A. Tessier
Title: Vice President, Legal Affairs and General
Counsel
ACCEPTED AND AGREED as of the
date first written above:
NORTH AMERICAN VACCINE, INC.
By
-------------------------------
Name: Randall Chase, Ph.D
Title: Chief Executive Officer & President
BAXTER INTERNATIONAL INC.
By
-------------------------------
Name:
Title:
<PAGE>
Exhibit E
AMENDED AND RESTATED
PLAN OF ARRANGEMENT UNDER SECTION 192
OF THE CANADA BUSINESS CORPORATIONS ACT
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
Unless indicated otherwise, where used in this Plan of Arrangement, the
following terms shall have the following meanings:
"ACQUIRECO" means Neptune Acquisition Corp, an unlimited liability
company existing under the laws of the Province of Nova Scotia.
"AGREEMENT" means the Share Exchange Agreement dated as of November 17.
1999, as amended by Amendment No. 1 dated as of April 17, 2000, among
Parent, Company and Acquireco to which this Plan of Arrangement is
attached as Annex A, and includes any annexes attached thereto, as
amended, modified or supplemented from time to time.
"ARRANGEMENT" means the arrangement under section 192 of the CBCA
involving Acquireco, Company and the shareholders of Company on the
terms and conditions set out in this Plan of Arrangement, subject to
any amendments thereto in accordance with Section 5.4 or made at the
direction of the Court in the Final Order.
"ARRANGEMENT RESOLUTION" means the resolution or resolutions of the
shareholders approving this Plan of Arrangement as required by
applicable law and the Interim Order, substantially in the form
attached to the Proxy Statement.
"BUSINESS DAY" means any day on which the principal offices of the
United States Securities and Exchange Commission in Washington, D.C.
are open to accept filings, or, in the case of determining a date when
any payment is due, any day on which banks are not required or
authorized by law or executive order to close in the City of New York
or the City of Toronto.
"CBCA" means the Canada Business Corporations Act, as amended from time
to time.
"COMPANY" means North American Vaccine, Inc. a corporation existing
under the CBCA.
"COMPANY COMMON SHARES" means the common shares, no par value per
share, of Company outstanding from time to time.
"COMPANY PREFERRED SHARES" means the shares of Series A Preferred
Stock, no par value per share, of Company outstanding from time to
time.
"COMPANY SHARES" means Company Common Shares and the Company Preferred
Shares.
<PAGE>
"COMPANY SHAREHOLDERS' MEETING" means the special meeting of the
shareholders held pursuant to Section 7.02 of the Agreement and any
adjournment or postponement thereof, to consider and, if thought
advisable, to pass the Arrangement Resolution.
"COURT" means the Ontario Superior Court of Justice or the Quebec
Superior Court.
"DEPOSITARY" has the meaning assigned thereto in Section 1.01 of the
Agreement.
"DIRECTOR" means the Director appointed under section 260 of the CBCA.
"DISSENT PROCEDURES" has the meaning assigned thereto in Section 4.1
hereof.
"DISSENT RIGHTS" means the rights of dissent which each Dissenting
Shareholder is entitled to exercise, under the Interim Order and the
Final Order and strictly in the manner set out in section 190 of the
CBCA and this Plan of Arrangement, in respect of the Arrangement
Resolution.
"DISSENTING SHAREHOLDER" means a shareholder of the Company who
dissents from the Arrangement Resolution in compliance with the Dissent
Procedures and the CBCA.
"EFFECTIVE DATE" means the date upon which this Plan of Arrangement
becomes effective as established by the date of issue set forth in the
certificate of arrangement issued by the Director giving effect to the
Arrangement.
"EFFECTIVE TIME" means the time of filing of the Articles of
Arrangement implementing the Arrangement.
"FINAL ORDER" means the order of the Court made in connection with the
approval of the Arrangement following the application contemplated by
Section 2.04 of the Agreement, as such order may be amended or modified
by the highest court by which an appeal is heard prior to the Effective
Time.
"INTERIM ORDER" means the interim order of the Court made in connection
with the approval of the Arrangement following the application therefor
contemplated by Section 2.02 of the Agreement.
"LETTERS OF TRANSMITTAL" means the letters of transmittal to be mailed
to shareholders of the Company by Company together with the Proxy
Statement.
"PARENT" means Baxter International Inc. a Delaware corporation.
"PARENT COMMON STOCK" means the shares of common stock, par value $1.00
per share, of Parent.
"PROXY STATEMENT" has the meaning assigned thereto in Section 7.01 of
the Agreement.
Terms used but not otherwise defined herein shall have the meanings assigned
thereto in the Arrangement Agreement.
2
<PAGE>
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The division of this Plan of Arrangement into articles, sections and
other portions and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation of this Plan of
Arrangement.
1.3 CURRENCY.
All sums of money which are referred to in this Plan of Arrangement are
expressed in lawful money of the United States unless otherwise specified.
1.4 NUMBER, ETC.
Unless the subject matter or context requires the contrary, words
importing the singular number only shall include the plural and vice versa,
words importing the use of any gender shall include all genders and words
importing persons shall include natural persons, firms, trusts, partnerships and
corporations.
1.5 STATUTORY REFERENCES.
Any reference in this Plan of Arrangement to a statute includes all
regulations made thereunder, all amendments to such statute in force from time
to time and any statute or regulation that supplements or supersedes such
statute or regulation.
1.6 DATE OF ANY ACTION.
In the event that any date on which any action is required or permitted
to be taken hereunder by any person is not a Business Day in the place where the
action is required or permitted to be taken, such action shall be required or
permitted to be taken on the next succeeding day which is a Business Day in such
place.
ARTICLE 2
ARRANGEMENT
2.1 ARRANGEMENT
This Plan of Arrangement is made pursuant to, is subject to the
provisions of and forms part of, the Agreement.
ARTICLE 3
ARRANGEMENT
3.1 EXCHANGE OF SHARES. At the Effective Time, the following shall be
deemed to occur in the order specified in the following paragraphs without any
further authorization, act or formality:
(a) Subject to Section 4.1, each Company Common Share issued and
outstanding immediately before the Effective Time shall be
exchanged by Acquireco for consideration consisting of:
(i) the fraction of a share (calculated and rounded
to the nearest ten-thousandth of one share) of Parent Common
Stock, (A) the numerator of which fraction shall be $6.70 (the
3
<PAGE>
"SHARE CONSIDERATION"), and (B) the denominator of which shall
be the Parent Stock Price (as defined in Section 3.1(a)(iii)
below); and
(ii) a cash payment of $.03 per Company Common Share
(the "CASH CONSIDERATION" and, together with the Share
Consideration, the "ARRANGEMENT CONSIDERATION");
PROVIDED, HOWEVER, that in the event the Company
Capitalization shall be greater or less than the amount set
forth in Section 4.03 of the Agreement by more than 10,000
Company Common Shares, the Share Consideration and Cash
Consideration shall each be adjusted by multiplying it by a
fraction, the numerator of which is the Company Capitalization
as set forth in Section 4.03 of the Agreement and the
denominator of which is the actual Company Capitalization at
the Effective Time.
(iii) For purposes of calculating the Share
Consideration, the "PARENT STOCK PRICE" shall be an amount
equal to the average closing sale price of a share of Parent
Common Stock as reported in THE WALL STREET JOURNAL under the
caption New York Stock Exchange Composite Transactions or, if
not available, such other authoritative publication as may be
reasonably selected by Parent, for the ten consecutive trading
days ending on and including the fifth trading day prior to
the Effective Date. In the event Parent changes (or
establishes a record date for changing) the number shares of
Parent Common Stock issued and outstanding prior to the
Effective Time as a result of a stock split, stock dividend,
distribution, recapitalization, reclassification,
reorganization or similar transaction with respect to the
outstanding Parent Common Stock and the record date therefor
shall be prior to the Effective Time, the Share Consideration
shall be proportionately adjusted in such manner as Parent,
Acquireco and the Company shall agree, which adjustment may
include, as appropriate, the issuance of securities, property
or cash on the same basis as any of the foregoing shall have
been issued, distributed or paid to the holders of shares of
Parent Common Stock generally.
(b) Subject to Section 4.1, each Company Preferred Share issued
and outstanding immediately before the Effective Time shall be
exchanged by Acquireco for consideration consisting of (i) the
number of shares of Parent Common Stock equal to the product
of (x) the number of Company Common Shares into which such
Company Preferred Share is convertible immediately prior to
the Effective Time and (y) the Share Consideration divided by
the Parent Stock Price, and (ii) a cash payment equal to the
product of (x) the Cash Consideration and (y) the number of
Company Common Shares into which such Company Preferred Share
is convertible immediately prior to the Effective Time.
(c) Each shareholder of the Company shall cease to be a holder of
Company Common Shares or Company Preferred Shares, as the case
may be, and shall have his, her or its name removed from the
register of holders of Company Common Shares or Company
Preferred Shares, as the case may be.
(d) All Company Common Shares and Company Preferred Shares shall
be held by Acquireco and the name of Acquireco shall be added
to the register of holders of Company Common Shares and
Company Preferred Shares.
4
<PAGE>
(e) Certificates formerly representing Company Common Shares and
Company Preferred Shares shall represent only the right to
receive the consideration therefor, in accordance with
Articles 3, 4 and 5 hereof.
(f) Immediately following the exchange of shares as contemplated
by this Section 3.1, the Company shall increase the stated
capital of the Company Common Shares by an amount equal to the
difference between (i) the product of the number of Company
Common Shares exchanged pursuant to this Section 3.1
multiplied by $6.73 and (ii) the product of the paid-up
capital of an issued and outstanding Company Common Share as
determined pursuant to the Income Tax Act (Canada) immediately
prior to the increase in stated capital pursuant to this
Section 3.1(g), multiplied by the number of Company Common
Shares exchanged pursuant to this Section 3.1;
(g) Immediately following the exchange of shares as contemplated
by this Section 3.1, the Company shall increase the stated
capital of the Company Preferred by an amount equal to the
difference between (i) the product of the number of Company
Preferred Shares of the Company exchanged pursuant to this
Section 3.1 multiplied by the number of Company Common Shares
into which each Company Preferred Share is convertible
immediately before the Effective Time multiplied by $6.73 and
(ii) the product of the paid-up capital of an issued and
outstanding Company Preferred Share as determined pursuant to
the Income Tax Act (Canada) immediately prior to the increase
in stated capital pursuant to this Section 3.1(g), multiplied
by the number of Company Preferred Shares exchanged pursuant
to this Section 3.1.
3.2 NO FRACTIONAL SHARE CERTIFICATES. No scrip or fractional share of
Parent Common Stock shall be issued upon the surrender for exchange of Company
Shares, and an outstanding fractional share interest shall not entitle the owner
thereof to vote, to receive dividends or to any rights of a stockholder of
Parent with respect to such fractional share interest. As of the Effective Time,
Parent shall deposit with the Depository an amount in cash sufficient for the
Depository to pay each holder of Company Shares an amount in cash, rounded to
the nearest whole cent, equal to the product obtained by multiplying (i) the
fractional share interest to which such holder would otherwise be entitled
(after taking into account all Company Shares held at the Effective Time by such
holder) by (ii) the Parent Stock Price.
3.3 OPTIONS AND WARRANTS TO PURCHASE COMPANY COMMON SHARES.
(a) Immediately prior to the Effective Time, (i) the Company Stock
Options which are outstanding and unexercised immediately prior to the Effective
Time, shall be cancelled and (ii) in consideration of such cancellation, Parent
shall pay to such holders of Company Stock Options at the Effective Time an
amount in cash in respect thereof equal to the product of (x) the excess, if
any, of the Arrangement Consideration (determined in accordance with Section
3.1) over the exercise price thereof and (y) the number of Company Common Shares
subject thereto (such payment to be net of taxes required by law to be withheld
with respect thereto), PROVIDED, that the foregoing shall be subject to the
obtaining of any necessary consents of holders of Company Stock Options.
(b) Company shall take all actions necessary so that, immediately prior
to the Effective Time and in accordance with the Warrant Termination Letter, (i)
the Company Warrants which are outstanding and unexercised immediately prior to
the Effective Time shall be cancelled and (ii) in consideration of such
cancellation, Parent shall pay to the holder(s) of Company Warrants at the
Effective Time an amount in respect thereof in Parent Common Stock valued at the
5
<PAGE>
Parent Stock Price equal to the product of (x) the excess of the Arrangement
Consideration (determined in accordance with Section 3.1) over the exercise
price thereof and (y) the number of Company Common Shares subject thereto.
3.4 CERTAIN ADJUSTMENTS. If prior to the Effective Time, Company Common
Shares or Company Preferred Shares shall be changed into a different number of
shares by reason of any reclassification, recapitalization, split-up,
combination or exchange of shares, or any dividend payable in stock or other
securities shall be declared thereon with a record date within such period, then
the Arrangement Consideration established pursuant to the provisions of Section
3.1(a)(i) or 3.1(b), as applicable, shall be adjusted accordingly to provide to
Parent and the holders of the Company Shares the same economic effect as
contemplated hereby prior to such reclassification, recapitalization, split-up,
combination, exchange, dividend or increase.
3.5 LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any certificates
representing Company Shares shall have been lost, stolen or destroyed, the
Depository shall issue in exchange for such lost, stolen or destroyed
certificates, upon the making of an affidavit of that fact by the holder
thereof, such shares of Parent Common Stock (and cash in lieu of fractional
shares) as may be required pursuant to Section 3.1, PROVIDED, HOWEVER, that
Parent may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificates to
indemnify Parent against any claim that may be made against Parent or the
Depository with respect to the certificates alleged to have been lost, stolen or
destroyed.
3.6 TAKING OF NECESSARY ACTION; FURTHER ACTION. If, at any time after the
Effective Time, any further action is necessary or desirable to carry out the
purposes of the Agreement, the officers and directors of Company, Parent and
Acquireco, as the case may be, are fully authorized in the name of their
corporation or otherwise to take, and will use good faith efforts to take, all
such lawful and necessary action, so long as such action is not inconsistent
with this Agreement.
3.7 DISSENTING SHAREHOLDERS. Company shall give Parent prompt notice of any
holders of shares who have not voted such shares for approval of the Arrangement
Resolution and who have perfected Dissent Rights (and shall also give Parent
prompt notice of any withdrawals of such demands for Dissent Rights) and Parent
shall have the right to direct all negotiations and proceedings with respect to
such demands.
ARTICLE 4
RIGHTS OF DISSENT
4.1 RIGHTS OF DISSENT.
Shareholders of the Company may exercise Dissent Rights pursuant to and
strictly in the manner set forth in the Interim Order, section 190 of the CBCA
and this Section 4.1 (the "Dissent Procedures") in connection with the
Arrangement. Shareholders of the Company who duly exercise such Dissent Rights
and who:
(a) are ultimately entitled to be paid fair value for their Shares
shall be deemed to have transferred such Company Shares to
Company for cancellation at the Effective Time; or
(b) for any reason are ultimately not entitled to be paid fair
value for their Company Shares shall be deemed to have
participated in the Arrangement on the same basis as any
non-dissenting Shareholder as at and from the Effective Time,
and subject to Article 5 hereof, shall have the right to
receive consideration, on the basis determined in accordance
with Article 3 hereof;
6
<PAGE>
but in no case shall Company or Acquireco be required to recognize such
Dissenting Shareholders as holders of Company Shares at and after the Effective
Time, and the names of such Dissenting Shareholders shall be deleted from
Company's register of holders of Company Shares at the Effective Time.
ARTICLE 5
PAYMENT
5.1 DELIVERY OF PARENT COMMON STOCK AND CASH BY ACQUIRECO.
Immediately upon the filing of the Articles of Arrangement, Acquireco
shall cause to be available to the Depositary, for payment to holders of Company
Shares, (i) cash and the certificates of Parent Common Stock representing the
number of whole shares of Parent Common Stock issuable pursuant to subsection
3.1(a) and 3.1(b) in exchange for Company Common Shares and Company Preferred
Shares outstanding immediately prior to the Effective time and (ii) sufficient
funds to permit payment in lieu of fractional shares pursuant to section 3.2,
for delivery to such holders in accordance with Section 5.2 hereof. As soon as
practicable after the Effective Time, (i) such payments of shares of Parent
Common Stock shall be made by the Depositary by issuing certificates
representing such shares to the shareholders of Company; and (ii) such cash
payments shall be made by the Depositary by issuing cheques to the shareholders
of Company. All interest on funds provided to and held by the Depositary
pursuant to this Section 5.1 shall accrue to the benefit of Acquireco.
5.2 METHOD OF PAYMENT.
The Depositary shall forward to each Shareholder who, prior to the
Effective Date, has deposited a properly completed Letter of Transmittal,
together with his or her Company Share certificates, the certificates
representing shares of Parent Common Stock and the cash to which he or she is
entitled as soon as reasonably practicable but, in any event, not later than
three Business Days after the Effective Date. The Depositary shall forward to
each Shareholder who, after the Effective Date, has deposited his or her
properly completed Letter of Transmittal, together with his or her Company Share
certificates, the certificates representing shares of Parent Common Stock and
the cash to which he or she is entitled within three Business Days following
receipt by the Depositary of such letters and share certificates. Unless
otherwise directed in accordance with any Letter of Transmittal, such share
certificates and cheques shall be forwarded by first class mail, postage
prepaid, or, in the case of a postal disruption in the United States or Canada,
by such other means as the Depositary may consider prudent, to the persons and
at the addresses specified in the relevant Letter of Transmittal. Share
certificates and cheques forwarded pursuant hereto will be deemed to have been
delivered at the time of delivery thereof to the post office or to such other
party as may be charged with responsibility for the transmission thereof.
5.3 LIMITATION.
Any certificate formerly representing Company Shares not deposited with
all of the other documents and instruments required by this Plan of Arrangement
on or prior to the sixth anniversary of the Effective Date shall cease to
represent any claim to which the holder thereof would otherwise be entitled. On
such date, all cash or shares to which the former registered holder of the
certificate referred to in the preceding sentence was entitled shall be deemed
to have been surrendered to Acquireco together with all dividends, distributions
and interest held for such former registered holder.
7
<PAGE>
5.4 AMENDMENTS TO PLAN OF ARRANGEMENT.
Company reserves the right to amend, modify and/or supplement this Plan
of Arrangement at any time and from time to time, provided that each such
amendment, modification and/or supplement must be (i) set out in writing, (ii)
approved by Acquireco, (iii) filed with the Court and, if made following the
Company Shareholders' Meeting, approved by the Court, and (iv) communicated to
holders of Company Shares if and as required by the Court.
Any amendment, modification or supplement to this Plan of Arrangement
may be proposed by Company at any time prior to the Company Shareholders'
Meeting (provided that Acquireco shall have consented thereto) with or without
any other prior notice or communication, and if so proposed and accepted by the
persons voting at the Company Shareholders' Meeting (other than as may be
required under the Interim Order), shall become part of this Plan of Arrangement
for all purposes.
Any amendment, modification or supplement to this Plan of Arrangement
that is approved by the Court following the Company Shareholders' Meeting shall
be effective only if (i) it is consented to by each of Company and Acquireco,
and (ii) if required by the Court or applicable, it is consented to by holders
of the Company Shares voting in the manner so required.
EXECUTION COPY
AMENDMENT NO. 1 TO
SHAREHOLDER AGREEMENT
Amendment No. 1 dated as of April 17, 2000 (this "AMENDMENT") to the
Shareholder Agreement dated as of November 17, 1999 (the "SHAREHOLDER
AGREEMENT") among 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").
RECITALS
WHEREAS, Parent and the Shareholders desire to amend the Shareholder
Agreement as set forth in this Amendment;
WHEREAS, concurrently with the execution of this Amendment, Parent,
Company and 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"), have entered into Amendment No. 1 to the Share Exchange
Agreement dated as of November 17, 1999 among Parent, Acquireco and Company;
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. The first recital of the Shareholder Agreement is hereby amended and
restated in its entirety to read as follows:
"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, as amended by Amendment
No. 1 dated as of April 17, 2000 (such agreement, as so 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");"
2. This Amendment shall be deemed an amendment to the Shareholder
Agreement and shall become effective when executed by Parent and the
Shareholders as required by Section 10 of the Shareholder Agreement. Except as
expressly amended pursuant to this Amendment, the Shareholder Agreement shall
continue in full force and effect.
<PAGE>
3. This Amendment 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.
4. This Amendment 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.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
BAXTER INTERNATIONAL INC.
By: /s/ Timothy B. Anderson
-----------------------------------
Name: Timothy B. Anderson
Title: Group Vice President,
Corporate Strategy and
Development
3
<PAGE>
BIOCHEM PHARMA INC.
By: /s/ Charles-A. Tessier
-----------------------------------
Name: Charles-A. Tessier
Title: V.P. Legal Affairs & General Counsel
By: /s/ Fred Andrew
-----------------------------------
Name: Fred Andrew
Title: Chief Financial Officer
<PAGE>
FROST-NEVADA LIMITED PARTNERSHIP
By: /s/ David Moskowitz
-----------------------------------
Name: David Moskowitz
Title: President, Frost-Nevada Corporation
General Partner, Frost-Nevada Limited Partnership
<PAGE>
SHAREHOLDER
/s/ Phillip Frost, M.D.
-------------------------------------
(Signature)
<PAGE>
IVAX CORPORATION
By: /s/ Phillip Frost, M.D.
-------------------------------------
Name: Phillip Frost, M.D.
Title: Chairman of the Board
April 17, 2000
North American Vaccine, Inc.
10150 Old Columbia Road
Columbia, Maryland 21046
Attention: President
Baxter International Inc.
One Baxter Parkway
Deerfield, Illinois 60015
Attention: General Counsel
Dear Sirs:
Reference is made to the Warrant No. W-1 dated July 21, 1999 of
North American Vaccine, Inc. (the "COMPANY") registered in the name of BioChem
Pharma Inc. ("BCPI") for the purchase of 250,000 common shares, no par value, of
the Company (the "COMPANY SHARES"), Warrant No. W-2 dated August 26, 1999 of the
Company registered in the name of BCPI for the purchase of 250,000 Company
Shares and Warrant No. W-3 dated October 28, 1999 of the Company registered in
the name of BCPI for the purchase of 250,000 Company Shares (collectively, the
"WARRANTS").
In order to induce Baxter International Inc., a Delaware corporation
("PARENT") to enter into the Share Exchange Agreement dated as of November 17,
1999, as amended by Amendment No. 1 dated as of April 17, 2000 (such agreement,
as so amended, is hereinafter referred to as the "SHARE EXCHANGE AGREEMENT")
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, and Company, and in consideration of the payment by Parent of the amount
determined in accordance with Section 3.03(b) of the Share Exchange Agreement,
BCPI hereby agrees, subject to the consummation of the transactions contemplated
by the Share Exchange Agreement, as follows:
(i) the Warrants shall terminate and be of no further force or
effect as of the Effective Time (as defined in the Share Exchange Agreement)
without any further action on the part of Company or BCPI; and
(ii) BCPI hereby waives, effective as of the Effective Time, any and
all rights it has or may have under the Warrants, including, without limitation,
the right to receive shares of capital stock of Parent as a result of the
transactions contemplated by the Share Exchange Agreement.
<PAGE>
BIOCHEM PHARMA INC.
By /s/ Fred Andrew
-------------------------------------
Name: Fred Andrew
Title: Chief Financial Officer
By /s/ Charles-A. Tessier
-------------------------------------
Name: Charles A. Tessier
Title: Vice President, Legal Affairs
and General Counsel
ACCEPTED AND AGREED as of the
date first written above:
NORTH AMERICAN VACCINE, INC.
By /s/ Randal Chase, Ph.D
------------------------------------
Name: Randall Chase, Ph.D
Title: Chief Executive Officer & President
BAXTER INTERNATIONAL INC.
By: /s/ Timothy B. Anderson
-----------------------------------
Name: Timothy B. Anderson
Title: Group Vice President,
Corporate Strategy and
Development
2
EXECUTION VERSION
ASSIGNMENT, ACCEPTANCE AND AMENDMENT AGREEMENT
DATED APRIL 17, 2000
Reference is made to the letter loan agreement dated as of November
1, 1999 (as amended, renewed, extended, amended and restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"; the terms defined
therein, unless otherwise defined herein, being used herein as therein defined)
between North American Vaccine, Inc., a Canadian corporation (the "BORROWER"),
and Bank of America, N.A. (the "ORIGINAL LENDER").
WHEREAS, the Original Lender wishes to sell and assign all of its
rights and obligations under the Loan Documents to BioChem Pharma Inc., a
Canadian corporation (the "NEW LENDER"), and the Borrower wishes to consent to
such sale and assignment upon the terms set out herein; and
WHEREAS, upon such sale and assignment, the Original Lender will
release the Guaranty and the Guarantor will release the Reimbursement Agreement
on the terms set out herein.
NOW, THEREFORE, in consideration of the foregoing, and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree, with effect from the Effective Date (as defined in Section 1), as
follows:
1. Upon receipt of the Payoff Amount (as defined below) by the
Original Lender in immediately available funds delivered in accordance with
wiring instructions delivered by the Original Lender to the New Lender (or its
representatives), the Original Lender hereby agrees to sell and assign, without
recourse and without representation or warranty (except as to the
representations and warranties expressly made by Original Lender in paragraph 2
below) to the New Lender, and the New Lender hereby agrees to purchase and
assume from the Original Lender, all of the Original Lender's rights and
obligations under the Credit Agreement and the other Loan Documents. The
Borrower hereby consents to such sale and assignment from the Original Lender to
the New Lender. This Agreement shall become effective on April 17, 2000 (the
"EFFECTIVE DATE"). The aggregate amount owed to the Original Lender with respect
to the Loans (inclusive of principal, interest, commitment fees, other fees,
expense reimbursements and all other amounts owed to the Original Lender in
respect to such indebtedness) through and including the Effective Date is
US$19,549,190.40 (the "PAYOFF AMOUNT"). In the event that the Payoff Amount is
not received on or prior to 4:00 p.m. (Charlotte, North Carolina time) on April
17, 2000, the Loans will continue to accrue interest (at the Base Rate plus 2%)
at a per diem amount of US$5933.58 for each day after April 17, 2000 that the
Original Lender has not received payment in full prior to 4:00 p.m (Charlotte,
North Carolina time) in immediately available funds in accordance with the
wiring instructions delivered by the Original Lender. After giving effect to
<PAGE>
such sale and assignment, the amount of the Loans owing to the New Lender will
be US$19,549,190.40.
2. The Original Lender (i) represents and warrants that it is the
legal and beneficial owner of the interest or interests being assigned by it
hereunder; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with any Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto.
3. The New Lender (i) confirms that it has received a copy of the
Credit Agreement, together with such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Agreement; (ii) agrees that it will, independently and without reliance
upon the Original Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; and (iii) agrees that it
will perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement and the other Loan Documents are required to be
performed by it as the Lender.
4. (i) The New Lender shall be a party to the Credit Agreement and
the other Loan Documents and, to the extent provided in this Agreement, have the
rights and obligations of the Lender thereunder and (ii) the Original Lender
shall, to the extent provided in this Agreement, relinquish its rights and be
released from its obligations under the Credit Agreement and the other Loan
Documents (other than its rights under the Loan Documents that are specified
under the terms of such Loan Documents to survive the payment in full of the
obligations of the Borrower under the Loan Documents to the extent any claim
thereunder relates to an event arising prior to the Effective Date) and the
Original Lender shall cease to be a party thereto.
5. From and after the Effective Date, the Borrower shall make all
payments under the Credit Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the New Lender. The Original Lender and
the New Lender shall make all appropriate adjustments in payments under the
Credit Agreement for periods prior to the Effective Date.
6. On the Effective Date, without any action on the part of the
Guarantor or the Borrower, (i) the Guaranty will be terminated and the Guarantor
unconditionally and irrevocably released, and (ii) the Reimbursement Agreement,
the Security Agreement dated November 1, 1999 between the Guarantor and the
Borrower and the Patent and Trademark Assignment and Security Agreement, dated
November 1, 1999 between the Guarantor and the Borrower will each be terminated
-2-
<PAGE>
and the Borrower unconditionally and irrevocably released. The parties further
agree that the Guarantor is a party to this Agreement solely for the purposes of
this Section 6, and the Guarantor shall have no rights or liabilities under this
Agreement other than those set out in this Section 6 and Sections 12 and 13.
7. Immediately following the sale and assignment under Sections 1 to
5, and the releases and terminations under Section 6, the New Lender, Dr.
Phillip Frost ("FROST") and the Borrower agree that the Credit Agreement shall
be assigned as set forth in Part I of Schedule A and amended as set forth in
Part II of Schedule A.
8. The Borrower represents and warrants to each of the New
Lender and Frost as follows:
(1) the representations and warranties contained in each Loan
Document are correct on and as of the date hereof, after
giving effect to this Agreement, as though made on and as of
the date hereof, other than any such representations or
warranties that by their terms, refer to a specific date, in
which case, as of such specific date; and
(2) no Default or Event of Default which has not been waived has
occurred and is continuing under the Credit Agreement, as
amended hereby, or would result from this Agreement or the
consummation of the transactions contemplated hereby.
9. Without prejudice to any Default or Event of Default
arising after the date hereof:
(3) with respect to any Default or Event of Default (other than
one under Section 5(k) of the Credit Agreement) which is
continuing, which event does not have a grace or cure period
and which event arose on or before the date hereof, the New
Lender and Frost hereby waive their respective rights under
the last paragraph of Section 5 of the Credit Agreement; and
(4) with respect to any Default or Event of Default (other than
one under Section 5(k) of the Credit Agreement) which is
continuing, which event has a grace or cure period and which
event arose on or before the date hereof, such grace or cure
period shall be deemed to commence on the date hereof.
10. (a) Each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words like
import referring to the Credit Agreement, and each
reference in each of the other Loan Documents to "the
Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement,
-3-
<PAGE>
shall mean and be a reference to the Credit
Agreement, as amended by this Agreement.
1 The Credit Agreement and each of the other Loan
Documents, as specifically amended by this Agreement,
are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed.
(2) The execution, delivery and effectiveness of this
Agreement shall not, except as expressly provided
herein, operate as a waiver of any right, power or
remedy by the New Lender under any of the Loan
Documents, nor constitute a waiver of any provision of
any of the Loan Documents.
(a) This Agreement shall become effective on the Effective
Date; provided that the Effective Date shall be deemed
modified to be the actual date of the sale and
assignment to the extent the parties do not close on
April 17, 2000.
(b) The Borrower agrees to pay on demand all costs and
expenses of the Original Lender and the New Lender in
connection with the preparation, execution, delivery
and administration, modification and amendment of
this Agreement and the other instruments and
documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses
of counsel for the Original Lender and the New
Lender) in accordance with the terms of Section 6(i)
of the Credit Agreement. In addition, the Borrower
shall pay any and all stamp and other taxes payable
or determined to be payable in connection with the
execution and delivery of this Agreement and the
other instruments and documents to be delivered
hereunder, and agrees to hold the New Lender harmless
from and against any and all liabilities with respect
to or resulting from any delay in paying or omission
to pay such taxes.
(c) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(d) This Agreement may be executed in any number of
counterparts and by different parties hereto in
separate counterparts, each of which when so executed
shall be deemed to be an original and all of which
taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of
this Agreement by telecopier shall be effective as
delivery of an original executed counterpart of this
Agreement.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers.
THE ORIGINAL LENDER
BANK OF AMERICA, N.A. as Original Lender
By: /s/ Larry [illegible]
--------------------------------------
Title: Principal
Date: April 17, 2000
THE NEW LENDER
BIOCHEM PHARMA INC. as New Lender
By: /s/ Fred Andrew
--------------------------------------
Title: Chief Financial Officer
Date: April 17, 2000
By: /s/ Charles-A. Tessier
--------------------------------------
Title: Vice President Legal Affairs &
General Counsel
Date: April 17, 2000
THE BORROWER
NORTH AMERICAN VACCINE, INC. as Borrower
By: /s/ Randal Chase
--------------------------------------
Title: President and Chief Executive
Officer
Date: April 17, 2000
-5-
<PAGE>
THE GUARANTOR
BAXTER INTERNATIONAL INC. as Guarantor
By: /s/ Timothy B. Anderson
--------------------------------------
Title: Group Vice President
Corporate Strategy and
Development
Date: April 17, 2000
FROST
/s/ Phillip Frost, M.D.
----------------------------------------
Dr. Phillip Frost
Date: April 17, 2000
-6-
<PAGE>
SCHEDULE A
PART I
ASSIGNMENT OF CREDIT AGREEMENT
1. In consideration of the sum of US$1 paid by Frost to the New
Lender (the receipt and sufficiency of which is hereby acknowledged), the New
Lender hereby sells and assigns, without recourse except as to the
representations and warranties made by it herein, to Frost, and Frost hereby
purchases and assumes from the New Lender, an interest in and to the New
Lender's rights and obligations under the Credit Agreement as of the date hereof
as specified below:
Amount of Commitment Assigned: $5,000,000
Amount of Loans Assigned: $0
After giving effect to such sale and assignment, the amount of the Loans owing
to the New Lender will be US$19,549,190.40.
2. The New Lender (i) represents and warrants that it is the legal
and beneficial owner of the interest or interests being assigned by it under the
Assignment, Acceptance and Amendment Agreement dated April 17, 2000 and that
such interest or interests are free and clear of any adverse claim; (ii) makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
and (iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document or
any other instrument or document furnished pursuant thereto.
3. Frost (i) confirms that he has received a copy of the Credit
Agreement, together with such other documents and information as he has deemed
appropriate to make his own credit analysis and decision to enter into this
Agreement; (ii) agrees that he will, independently and without reliance upon the
New Lender and based on such documents and information as he shall deem
appropriate at the time, continue to make his own credit decisions in taking or
not taking action under the Credit Agreement; and (iii) agrees that he will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by him as the Lender to the
extent of the obligations assumed by him under this Agreement.
4. (i) Frost shall be a party to the Credit Agreement and, to the
extent provided in this Agreement, have the rights and obligations of the Lender
thereunder and (ii) the New Lender shall, to the extent provided in this
A-1
<PAGE>
Agreement, relinquish its rights and be released from its obligations under the
Credit Agreement (other than its rights and obligations under the Loan Documents
that are specified under the terms of such Loan Documents to survive the payment
in full of the obligations of the Borrower under the Loan Documents to the
extent any claim thereunder relates to an event arising prior to the Effective
Date).
5. The Borrower shall make all payments under the Credit Agreement
in respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect thereto) to
Frost.
6. It is the intention of the New Lender, the Borrower and Frost
that Frost shall not have any right or interest in or to any of the Security
Agreement, the IP Security Agreement and the Pledge Agreement (the "SECURITY
DOCUMENTS"). The New Lender agrees with Frost that, to the extent the New Lender
receives or realizes any proceeds under or in respect of the Security Documents
or the collateral covered thereby or subject thereto, the New Lender shall,
after deduction of all reasonable costs and expenses incurred by the New Lender
in the realization of such proceeds, pay to Frost an amount equal to Frost's
Share of such net proceeds. For the purpose of this paragraph, "FROST'S SHARE"
shall mean the result (expressed as a percentage) of dividing the aggregate
outstanding principal amount of Loans made by Frost by the aggregate outstanding
principal amount of all Loans made by the New Lender and Frost, in each case
calculated on the date of receipt of such proceeds by the New Lender. New Lender
covenants and agrees for the benefit of Frost that, upon the occurrence and
during the continuance of an Event of Default under the Credit Agreement, it
will take all commercially reasonable action to enforce the Lender's rights
thereunder.
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<PAGE>
SCHEDULE A
PART II
AMENDMENTS TO CREDIT AGREEMENT
3. In the first paragraph, the words "BANK OF AMERICA, N.A. ("LENDER")
is" shall be deleted and replaced with the words "BIOCHEM PHARMA
INC. ("LENDER") and DR. PHILLIP FROST ("FROST") are"
4. Section 1(a) (other than the heading) shall be deleted in its
entirety and replaced with the words:
"Subject to the terms and conditions set forth herein, Lender and
Frost, on a several (and not joint) basis, agree to make available
to Borrower until the Maturity Date a revolving line of credit
providing for loans ("LOANS") in an aggregate principal amount not
exceeding at any time US$45,000,000; PROVIDED, HOWEVER, Lender shall
not be obligated to make Loans in an aggregate principal amount
exceeding US$40,000,000 (the "BIOCHEM COMMITMENT") and Frost shall
not be obligated to make Loans in an aggregate principal amount
exceeding US$5,000,000 (the "FROST COMMITMENT", and together with
the BioChem Commitment, the "COMMITMENTS" and each a "COMMITMENT ")
and PROVIDED FURTHER, HOWEVER, that Frost shall not, and shall not
be obligated to, make any Loans hereunder until the BioChem
Commitment has been drawn down in full by the Borrower and remains
outstanding. Subject to the foregoing limits, Borrower may borrow,
repay and reborrow Loans with until the Maturity Date.".
5. Section 1(b) (other than the heading) shall be deleted in its
entirety and replaced with the words:
"Borrower may request that Loans be made by irrevocable notice to be
received by Lender or Frost (as the case may be) not later than
11:00 a.m. on the third Business Day before the day of the proposed
Loan, or such shorter period as Lender or Frost (as the case may be)
may agree. Such request may not be made as more frequently than
weekly, and shall be accompanied by details of the proposed use by
Borrower of such Loan.".
6. The first two paragraphs of Section 1(c) (other than the heading)
shall be deleted in their entirety and replaced with the words:
"Interest on the unpaid principal amount of each Loan shall accrue
monthly from the date of the making thereof until the principal
amount thereof shall be repaid in full at a rate of 15% per annum
and shall be payable monthly in arrears and on the repayment or
maturity of each Loan, by acceleration or otherwise.".
A-3
<PAGE>
7. In Section 1(c), in the third paragraph, the words "Base Rate" shall
be deleted and replaced with the words "rate specified in the
preceding paragraph".
8. In Section 1(c), in the fourth paragraph, after the word "Lender"
the words "or Frost" shall be added.
9. In Section 1(d) the first sentence shall be deleted in its entirety
and replaced with the words:
"The Loans and all payments thereon shall be evidenced by Lender's
and Frost's (as the case may be) loan accounts and records;
PROVIDED, HOWEVER, that upon the request of Lender or Frost (as the
case may be), the Loans of Lender or Frost (as the case may be) may
be evidenced by grid promissory notes (each a "NOTE") in the form of
EXHIBIT B hereto, instead of or in addition to such loan accounts
and records.".
10. In Section 1(e), paragraphs (i) and (ii) shall be deleted in their
entirety and replaced with the words:
"(i) BIOCHEM DEFERRED FUNDING FEE. The Borrower shall pay to
Lender a deferred funding fee of $10,000,000 on the Maturity Date.
(ii) FROST DEFERRED FUNDING FEE. Providing at least one Loan has
been made by Frost on or before the Maturity Date, the Borrower
shall pay to Frost a non-assignable and non-transferrable deferred
funding fee of $1,250,000 on the Maturity Date.
(iii) FROST COMMITMENT FEE. If no Loan has been made by Frost on
or before the Maturity Date, the Borrower shall pay to Frost a
commitment fee of $50,000 on the Maturity Date.".
11. In Section 1(f), the second paragraph shall be deleted in its
entirety and replaced with the words:
"Borrower shall make (i) all payments to Lender required hereunder
not later than 1 p.m. on the date of payment in same day funds in
United States Dollars to the bank of Lender located at Royal Bank of
Canada, 3100 Le Carrefour Blvd, Laval, Quebec Canada, H7T 2K2,
transit number: 02301, account number: 406-610-6 or such other bank
or address as Lender may from time to time designate in writing and
(ii) all payments to Frost required hereunder not later than 1 p.m.
on the date of payment in same day funds in United States Dollars to
the bank of Frost located at such bank or address as Frost may from
time to time designate in writing.".
A-4
<PAGE>
12. In Section 1(f):
(1) in the third paragraph, each occurrence of the word "Lender"
shall be deleted and replaced with the words "Lender or Frost
(as the case may be)"; and
(2) in line fourteen, after the words "is organized" the words "or
resident" shall be added.
13. Section 1(g) shall be deleted in its entirety and replaced with the
words:
"PREPAYMENTS. Borrower may, upon same-day notice, prepay the Loans
on any Business Day. Prepayments must be accompanied by a payment of
interest on the amount so prepaid. Prepayments must be in a
principal amount of at least $500,000 or a multiple of $100,000 in
excess thereof. If any prepayment is made at a time when Loans from
Lender and Frost are outstanding, such prepayment of principal and
interest shall be paid to Lender and Frost pro rata to the aggregate
outstanding amount of their respective Loans".
14. In Section 2(c), paragraph (i), the words "and Guarantor" shall be
deleted and replaced with the words "or Frost".
15. In Section 3, in the first line, after the word "Lender" the words
"and Frost" shall be added.
16. In Section 3(f):
(1) in the first line, the word "solely" shall be deleted; and
(2) in the second line, after the word "Borrower" the words "or
for such other purposes as Lender or Frost (as the case may
be) may approve" shall be added.
17. In Section 3(j), in the first line, after the word "Lender" the
words "or Frost" shall be added.
18. In Section 3(l) the words "and Guarantor" shall be deleted.
19. In Section 4(a), in the first line, after the word "Lender" the
words "and, if Frost shall so request, to Frost" shall be added.
20. Section 4(b)(ii) shall be deleted in its entirety and replaced with
the words:
A-5
<PAGE>
"(ii) comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation,
compliance with ERISA, the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of
1970, Environmental Laws and Environmental Permits, in each
case the violation of which could result in a Material Adverse
Effect.".
21. In Section 4(b)(v) after the word "Lender" the words "and Frost"
shall be added.
22. In Section 4(b)(vi):
(1) in the first line, the words "and (B)" shall be deleted and
replaced with the words ", (B) all of its stock and other
collateral subject to the Pledge Agreement and (C);
(2) in the fourth line, after the word "Lender" the words "and
Frost" shall be added;
(3) in the fifth line, after the words "IP Security Agreement" the
words ", the Pledge Agreement" shall be added; and
(4) in the last line, the word "and" shall be deleted.
23. In Section 4(b)(vii) the full stop at the end shall be deleted and
replaced with the words "; and", and the following paragraphs shall
be added:
"(viii) preserve and maintain its existence and legal structure,
provided, however, that the Borrower and its Subsidiaries
may consummate any merger or consolidation permitted under
Section 4(c) (iii); and
(vix) keep true records and books of account in which entries
will be made of all dealings or transactions in relation to
its business and affairs in accordance with generally
accepted accounting principles, to the extent applicable,
applied on a consistent basis.".
24. In Section 4(c)(i) the full stop at the end shall be deleted and
replaced with the words " and (C) Indebtedness in an aggregate
amount of up to $5,000,000 provided such Indebtedness is
subordinated to the Indebtedness under the Loan Documents in a
manner reasonably satisfactory to Lender and Frost".
25. In Section 4(c), paragraph (iii), the words "(other than Guarantor
or any Affiliate Guarantor)" shall be deleted.
26. After Section 4(c)(xii) the following paragraphs shall be added:
A-6
<PAGE>
"(xiii) ORGANIZATIONAL DOCUMENTS. Amend, modify, restate or
supplement its Certificate of Incorporation or Bylaws if
such action could reasonably be expected to adversely
affect the rights of the Lender under the Credit Agreement,
the IP Security Agreement, the Pledge Agreement or the
Security Agreement.
(xiv) SUBSIDIARIES. Form, create or acquire any Subsidiary or
permit any Person other than the Borrower or a wholly owned
Subsidiary to hold an equity interest in any Subsidiary,
other than pursuant to the Pledge Agreement.
(xv) PARTNERSHIPS, ETC. Become a general partner in any general
or limited partnership or joint venture other than any
Subsidiary the sole assets of which consist of its interest
in such partnership or joint venture."
27. In Section 5(g) after each occurrence of the word "Lender" the words
"and Frost" shall be added.
28. Section 5(h) shall be deleted in its entirety and replaced with the
words "Intentionally Omitted".
29. In Section 5(m) after the words "any party thereto" the words "or
terminated automatically in accordance with its terms; PROVIDED,
HOWEVER, that (i) if the date by when the Effective Time (as defined
in the North American Vaccine Acquisition Agreement) shall have
occurred has been extended pursuant to Section 9.01(b) of the North
American Vaccine Acquisition Agreement, it shall not be an Event of
Default under this Section 5(m) until such extended date; or (ii) in
any other circumstance, it shall not be an Event of Default under
this Section 5(m) until 15 calendar days have elapsed" shall be
added.
30. In Section 5(o) the full stop at the end shall be deleted and
replaced with the words "; or", and the following paragraph shall be
added:
"(p) Rejection by UK authorities of NeisVac-C(TM)application.".
31. In the last paragraph of Section 5:
(1) the words "Upon the occurrence of an Event of Default, Lender
may declare the Commitment to be terminated, whereupon the
Commitment shall be terminated," shall be deleted and replaced
with the words:
"Upon the occurrence of an Event of Default, which Event of
Default (other than any of the events specified in Sections
5(i),(j) or (m) above)) has not been cured within 10 calendar
A-7
<PAGE>
days thereof, Lender or Frost may declare its or his
respective Commitment to be terminated, whereupon such
Commitment shall be terminated,"; and
(2) in line eight, the word "Commitment" shall be deleted and
replaced with the word "Commitments".
32. In Section 6(b) the words "Charlotte, North Carolina" shall be
deleted and replaced with the words "Quebec, Canada".
33. Sections 6(c) and (d) shall be deleted in their entirety and
replaced with the words "Intentionally Omitted".
34. In Section 6(f):
(1) in the second line, after the word "Lender" the words "or
Frost (as the case may be)" shall be added;
(2) in the fourth line, after the word "Lender" the words "and
Frost" shall be added; and
(3) in the second line, after the word "Lender" the words "or
Frost (as the case may be)" shall be added.
35. In Section 6(h):
(1) in the third line, after the word "LENDER" the words "OR FROST
(AS THE CASE MAY BE)" shall be added;
(2) in the ninth line, the words "(B) GUARANTOR OR (C)" shall be
deleted and replaced with the words "OR (B)"; and
(3) the final two sentences shall be deleted and replaced with the
words:
"Borrower agrees to execute any documents reasonably requested
by Lender or Frost (as the case may be) in connection with any
such assignment. All information provided by or on behalf of
Borrower to Lender or its affiliates or Frost may be furnished
by Lender or Frost to Lender's affiliates and to any actual or
proposed assignee or participant.".
36. In Section 6(i) after each occurrence of the word "Lender" the words
"or Frost (as the case may be)" shall be added.
A-8
<PAGE>
37. In Section 6(m) the word "AND LENDER" shall be deleted and replaced
with the words ", LENDER AND FROST" shall be added.
38. In Exhibit A, the following definitions shall be deleted:
Base Rate
Base Rate Loan
Breakage Costs
Federal Funds Rate
Guaranty Event of Default
Guaranty Obligation
Interest Period
Loan Documents
Maturity Date
Offshore Rate
Offshore Rate Loan;
and the following definitions shall be added:
Environmental Law: Any Federal, state, local or foreign
statute, law, ordinance, rule,
regulation, code, order, writ, judgment,
injunction or decree or any judicial or
agency interpretation, policy or guidance
(in the case of the latter, only to the
extent compliance is legally compulsory)
relating to pollution or protection of
the environment, health, safety or
natural resources, including, without
limitation, those relating to the use,
handling, transportation, treatment,
storage, disposal, release or discharge
of Hazardous Materials.
Environmental Permit: Any permit, approval, identification
number, license or other authorization
required under any Environmental Law.
Hazardous Materials: (a) Petroleum or petroleum products,
by-products or breakdown products,
radioactive materials,
asbestos-containing materials,
polychlorinated biphenyls and radon gas
and (b) any other chemical, materials or
substances designated, classified or
regulated as hazardous or toxic or as a
pollutant or contaminant under any
Environmental Law.
Loan Documents: This Agreement, the Security Agreement,
the IP Security Agreement, the Pledge
Agreement and any promissory note,
A-9
<PAGE>
certificate, fee letter, financing
statement and other instrument, document
or agreement delivered in connection with
this Agreement or the Security Agreement
or the IP Security Agreement or the
Pledge Agreement.
Maturity Date: June 30, 2000, or such earlier date on
which the Commitments may terminate in
accordance with the terms hereof,
provided, HOWEVER, that (i) if the date
by when the Effective Time (as defined in
the North American Vaccine Acquisition
Agreement) shall have occurred has been
extended pursuant to Section 9.01(b) of
the North American Vaccine Acquisition
Agreement to a date after June 30, 2000,
the Maturity Date shall be deemed to be
extended to such later date, or (ii) if a
Default under Section 5(m) has occurred
and the grace period under such Section
has not expired on or before June 30,
2000, the Maturity Date shall be deemed
to be extended to the end of such grace
period.
Pledge Agreement: The Pledge Agreement, if any, between the
Borrower and Lender with respect to
certain stock of Borrower and its
Subsidiaries.
39. In Exhibit A, in the definition of Business Day:
(1) the words "State of North Carolina" shall be deleted and
replaced with the words "Quebec, Canada"; and
(2) the words "and, if such day relates to any Offshore Rate Loan,
means any such day on which dealings in dollar deposits are
conducted by and between banks in the offshore dollar
interbank market" shall be deleted.
40. In Exhibit A, in the definition of Change of Control, the full stop
at the end shall be deleted and replace with the words "or (d) upon
the completion of the North American Vaccine Acquisition."
41. In Exhibit A, in the definition of North American Vaccine
Acquisition Agreement, the words "Agreement and Plan of Merger to
be" shall be deleted and replaced with the words "Share Exchange
Agreement dated as of November 17, 1999, as amended by Amendment No.
1 to Share Exchange Agreement dated as of April 17, 2000".
A-10
<PAGE>
42. In Exhibit A, in the definition of Principal Shareholder, the words
"Guarantor," shall be deleted.
43. Exhibit B shall be deleted in its entirety and replaced with the
attached Exhibit.
*
A-11
<PAGE>
EXHIBIT TO SCHEDULE A TO ASSIGNMENT,
ACCEPTANCE AND AMENDMENT AGREEMENT
FORM OF PROMISSORY NOTE
$[40][5],000,000 Dated: April __, 2000
FOR VALUE RECEIVED, the undersigned, NORTH AMERICAN VACCINE, INC., a
Canadian corporation ("BORROWER"), hereby promises to pay to the order of
[BIOCHEM PHARMA INC. ("LENDER")] [DR. PHILIP FROST ("FROST")] the principal sum
of [FORTY] [FIVE] Million Dollars (US$ [40] [5],000,000) or, if less, the
aggregate unpaid principal amount of all Loans made by [LENDER] [FROST] to
Borrower pursuant to the letter agreement dated as of November 1, 1999 between
Borrower and Bank of America, N.A.("BOA"), as assigned and amended pursuant to
the assignment, acceptance and amendment agreement dated April ___, 2000 between
Borrower, Lender, Frost, BoA and Baxter International Inc. (as so assigned and
amended, and as it may be otherwise amended, restated, extended, supplemented or
otherwise modified from time to time, the "AGREEMENT") on the Maturity Date.
[Lender][Frost] is authorized to endorse the amount and the date of
each Loan made by [Lender][Frost] and each payment of principal with respect
thereto on the schedule annexed hereto and made a part hereof, or on
continuations thereof which shall be attached hereto and made a part hereof;
PROVIDED that any failure to so endorse such information on such schedule or
continuation thereof or any error in doing so shall not limit or otherwise
affect any obligation of Borrower under the Agreement or this promissory note.
This promissory note is one of the Notes referred to in, and is
entitled to the benefits of, the Agreement, which Agreement, among other things,
contains provisions for acceleration of the maturity of the Loans evidenced
hereby upon the happening of certain stated events and also for prepayments on
account of principal of the Loans prior to the maturity thereof upon the terms
and conditions therein specified.
Unless otherwise defined herein, terms defined in the Agreement are
used herein with their defined meanings therein. This promissory note shall be
governed by, and construed in accordance with, the laws of the State of New
York.
NORTH AMERICAN VACCINE, INC.
By: ___________________________
Name:
Title:
A-12
<PAGE>
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AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL PAID PRINCIPAL NOTATION
DATE LOAN OR PREPAID BALANCE MADE BY
<S> <C> <C> <C> <C>
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A-13
</TABLE>
RELEASE DATE: 4/17/00
NORTH AMERICAN VACCINE AND BAXTER AGREE TO MODIFY SHARE EXCHANGE AGREEMENT
Columbia, MD -- April 17, 2000, North American Vaccine (AMEX: NVX) announced
today that it has agreed with Baxter International Inc. (NYSE: BAX) to modify
the Share Exchange Agreement between the parties. If the acquisition transaction
contemplated by the amended Share Exchange Agreement is consummated, North
American Vaccine shareholders will receive $6.73 per share rather than $7.00 per
share, which will be comprised of $6.70 of Baxter common stock and $0.03 in
cash. Consistent with the original Share Exchange Agreement, the number of
Baxter shares to be issued to North American Vaccine shareholders will be set
based upon the average closing sale price of Baxter common stock for the ten
trading days ending on the fifth trading day prior to consummation of the
transaction. The date by which the transaction is to be completed has been
extended from May 31, 2000 to June 30, 2000. Under the amended Share Exchange
Agreement, the Company will commit an additional $1.3 million to assist it in
retaining employees through June 30, 2000.
The Company has failed to satisfy certain conditions to closing under the
original Share Exchange Agreement. These and the other conditions to closing
have not been modified or waived by the amendment to the Share Exchange
Agreement. In addition, the transaction is still subject to shareholder
approval. As a result, if the acquisition transaction is approved by the North
American Vaccine shareholders, Baxter will have no obligation to consummate the
acquisition transaction. Rather, Baxter will have the option, exercisable in its
discretion, prior to June 30, 2000 to either waive any non-compliance with
conditions to closing and close the transaction or terminate the Share Exchange
Agreement, as amended. Either party, if it is not in breach of the Share
Exchange Agreement, may terminate the transaction if it does not close by June
30, 2000. As under the original Share Exchange Agreement, the North American
Vaccine Board of Directors will recommend that the shareholders vote in favor of
the acquisition transaction. Also as under the original Share Exchange
Agreement, BioChem Pharma Inc. and Frost-Nevada Partnership, which collectively
own approximately 47% of the Company's outstanding equity, have committed to
vote in favor of the acquisition transaction. The Company intends to hold a
special shareholder meeting to approve the acquisition transaction as promptly
as practicable.
Pursuant to a separate agreement, up to $45 million in funding for Company
operations is being provided by BioChem Pharma Inc. and Dr. Phillip Frost
through June 30, 2000. This financing includes BioChem assuming the
approximately $20 million utilized by the Company under a line of credit
provided by Bank of America and guaranteed by Baxter. BioChem is providing an
additional $20 million and Dr. Frost is providing an additional $5 million. This
transitional financing is at a 15% interest rate and is subject to a deferred
financing fee of up to $11.25 million in the aggregate. Baxter will have the
right to provide the final $5.0 million under these interim financing
arrangements in substitution for Dr. Frost and will have a right of first offer
to provide any new financing that the Company may require prior to June 30,
2000. Baxter has consented to these interim financing arrangements and is being
released from its guarantee.
<PAGE>
North American Vaccine, Inc. is engaged in the research, development, production
and sales of vaccines for the prevention of human infectious diseases. North
American Vaccine news releases are available on the Company's web site at
http://www.nava.com.
This press release contains certain forward looking statements, which are made
pursuant to the safe harbor provisions of the Securities Litigation Reform Act
of 1995, including the prospects and timing for consummation of the acquisition
transaction, and the availability of funds under interim financing. Investors
are cautioned that forward looking statements involve risks and uncertainties
that may affect the Company's business and prospects, including without
limitation uncertainties relating to satisfying the conditions for the interim
financing and the consummation of the acquisition transaction, including without
limitation, obtaining the requisite regulatory and shareholder approvals,
together with the risk factors discussed in the Company's reports and filings
with the U.S. Securities and Exchange Commission.
CONTACT: Tom Newberry, Director, Investor Relations, North American Vaccine,
Inc., 10150 Old Columbia Road, Columbia, MD 21046, (410)309-7121.
2
