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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 12)*
North American Vaccine, Inc.
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(Name of Issuer)
Common Stock, No Par Value
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(Title of Class of Securities)
657-201-109
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(CUSIP Number)
Charles-A. Tessier, Vice-President, Legal Affairs and General Counsel
BioChem Pharma Inc., 275 Armand Frappier Boulevard,
Laval, Quebec H7V 4A7 Canada
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 17, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BIOCHEM PHARMA INC.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
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3. SEC USE ONLY
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4. SOURCE OF FUNDS*
N/A
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E) / /
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Laval, Quebec, Canada
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7. SOLE VOTING POWER
NUMBER OF
SHARES 14,326,418
BENEFICIALLY -------------------------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH
REPORTING N/A
PERSON -------------------------------------------------------
WITH 9. SOLE DISPOSITIVE POWER
14,326,418
-------------------------------------------------------
10. SHARED DISPOSITIVE POWER
N/A
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,326,418
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
N/A
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40%
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14. TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
3
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This amendment Number 12 amends and supplements the Statement on
Schedule 13D (the "Schedule 13D") filed on behalf of BioChem Pharma Inc.
("BioChem"), a publicly-owned Canadian pharmaceutical company incorporated under
the laws of Canada, relating to the common stock, no par value per share, of
North American Vaccine, Inc. (the "Company"). Capitalized terms used and not
defined in this Amendment have the meanings set forth in the Schedule 13D as
amended. Item 6 of the Schedule 13D is hereby amended and supplemented to add
the following:
Item 6. Contracts, Arrangements, Understandings or Relationships With respect to
Securities of the Issuer.
The Company approached BioChem for assistance in repaying outstanding
amounts under a line of credit that had been extended by Bank of America, N.A.
("Bank of America") and guaranteed by Baxter, as well as to secure additional
working capital in order to finance its operations through either the closing of
the Arrangement or until the Share Exchange Agreement is terminated by the
parties thereto.
BioChem, the Company, Baxter, Frost and Bank of America entered into an
Assignment, Acceptance and Amendment Agreement dated April 17, 2000, whereby
BioChem agreed to provide up to $40 million in financing for Company operations
through June 30, 2000 (the "Transitional Financing"). The Transitional Financing
includes: (i) BioChem's assumption of the line of credit previously provided by
Bank of America and guaranteed by Baxter (the "Original Line") under which the
Company had drawn approximately $20 million; and (ii) up to an additional $20
million. Amounts outstanding under the Transitional Financing accrues interest
at a rate of 15% per annum and is subject to a deferred financing fee of $10
million. The Transitional Financing, including the deferred financing fee, is
repayable in full on June 30, 2000 or upon a change in control of the Company,
whichever occurs first. Baxter has consented to the Transitional Financing and
is being released from its guarantee under the Original Line. Repayment of the
Transitional Financing is secured by various assets of the Company.
On April 17, 2000, Baxter and the Company signed Amendment No. 1 to the
Share Exchange Agreement which, among other things, extends the date by which
the Arrangement must be completed to June 30, 2000 and amends the per share
consideration to be paid by Baxter to U.S.$6.73 per share of Company common
stock, payable in Baxter stock and cash. On April 17, 2000, BioChem, Frost, IVAX
and Frost LP executed Amendment Number 1 to the Shareholder Agreement, whereby
each of the parties to the Shareholder Agreement has agreed to support the
amended offer of U.S.$6.73 per share of Company common stock, payable in Baxter
stock and cash. In addition, BioChem, Frost, IVAX and Frost LP each also
executed an amended Proxy which takes into account the amendments to the Share
Exchange Agreement.
4
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The description of the agreements contained herein is not intended to
be complete and is qualified in its entirety by reference to such agreements
which are attached hereto as Exhibits 99.1 and 99.2 and incorporated herein by
reference.
Item 7. Material to be Filed as Exhibits.
99.1. Assignment, Acceptance and Amendment Agreement, dated April
17, 2000.
99.2. Amendment No. 1 to Shareholder Agreement dated as of April 17,
2000 among Baxter International Inc., BioChem Pharma Inc.,
Phillip Frost, M.D., Frost-Nevada, Limited Partnership and
IVAX Corporation.
99.3. Press release dated April 17, 2000.
5
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Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
BIOCHEM PHARMA INC.
By: /s/ Charles-A. Tessier
Charles-A. Tessier
Vice-President, Legal Affairs and
General Counsel
6
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EXHIBIT INDEX
99.1. Assignment, Acceptance and Amendment Agreement, dated April
17, 2000.
99.2. Amendment No. 1 to Shareholder Agreement dated as of April 17,
2000 among Baxter International Inc., BioChem Pharma Inc.,
Phillip Frost, M.D., Frost-Nevada, Limited Partnership and
IVAX Corporation.
99.3. Press release dated April 17, 2000.
7
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EXHIBIT 99.1
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
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available funds in accordance with the wiring instructions delivered by the
Original Lender. 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 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
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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 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:
(a) 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
(b) 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:
(a) 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
(b) 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
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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, shall mean and be
a reference to the Credit Agreement, as amended by
this Agreement.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(g) 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
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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.
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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 J. Gordon
-----------------------------------
Title:
Date:
THE NEW LENDER
BIOCHEM PHARMA INC. as New Lender
By: /s/ Fred Andrew
-----------------------------------
Title:
Date:
By: /s/ Charles-A. Tessier
-----------------------------------
Title:
Date:
THE BORROWER
NORTH AMERICAN VACCINE, INC. as Borrower
By: /s/ Randal Chase
-----------------------------------
Title:
Date:
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THE GUARANTOR
BAXTER INTERNATIONAL INC. as Guarantor
By: /s/ Timothy B. Anderson
-----------------------------------
Title:
Date:
FROST
/s/ Phillip Frost, M.D.
-----------------------------------
Dr. Phillip Frost
Date:
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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:
<TABLE>
<S> <C>
Amount of Commitment Assigned: $5,000,000
Amount of Loans Assigned: $ 0
</TABLE>
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.
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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 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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SCHEDULE A
PART II
AMENDMENTS TO CREDIT AGREEMENT
1. 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"
2. 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.".
3. 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.".
4. 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
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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.".
5. 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".
6. In Section 1(c), in the fourth paragraph, after the word "Lender" the
words "or Frost" shall be added.
7. 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.".
8. 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.".
9. 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
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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.".
10. In Section 1(f):
(a) 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
(b) in line fourteen, after the words "is organized" the words "or
resident" shall be added.
11. 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".
12. In Section 2(c), paragraph (i), the words "and Guarantor" shall be
deleted and replaced with the words "or Frost".
13. In Section 3, in the first line, after the word "Lender" the words "and
Frost" shall be added.
14. In Section 3(f):
(a) in the first line, the word "solely" shall be deleted; and
(b) 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.
15. In Section 3(j), in the first line, after the word "Lender" the words
"or Frost" shall be added.
16. In Section 3(l) the words "and Guarantor" shall be deleted.
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17. 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.
18. Section 4(b)(ii) shall be deleted in its entirety and replaced with the
words:
"(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.".
19. In Section 4(b)(v) after the word "Lender" the words "and Frost" shall
be added.
20. In Section 4(b)(vi):
(a) 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);
(b) in the fourth line, after the word "Lender" the words "and
Frost" shall be added;
(c) in the fifth line, after the words "IP Security Agreement" the
words ", the Pledge Agreement" shall be added; and
(d) in the last line, the word "and" shall be deleted.
21. 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.".
22. 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
A-6
<PAGE> 14
provided such Indebtedness is subordinated to the Indebtedness under
the Loan Documents in a manner reasonably satisfactory to Lender and
Frost".
23. In Section 4(c), paragraph (iii), the words "(other than Guarantor or
any Affiliate Guarantor)" shall be deleted.
24. After Section 4(c)(xii) the following paragraphs shall be added:
"(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."
25. In Section 5(g) after each occurrence of the word "Lender" the words
"and Frost" shall be added.
26. Section 5(h) shall be deleted in its entirety and replaced with the
words "Intentionally Omitted".
27. 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.
28. 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.".
A-7
<PAGE> 15
29. In the last paragraph of Section 5:
(a) 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
days thereof, Lender or Frost may declare its or his
respective Commitment to be terminated, whereupon such
Commitment shall be terminated,"; and
(b) in line eight, the word "Commitment" shall be deleted and
replaced with the word "Commitments".
30. In Section 6(b) the words "Charlotte, North Carolina" shall be deleted
and replaced with the words "Quebec, Canada".
31. Sections 6(c) and (d) shall be deleted in their entirety and replaced
with the words "Intentionally Omitted".
32. In Section 6(f):
(a) in the second line, after the word "Lender" the words "or
Frost (as the case may be)" shall be added;
(b) in the fourth line, after the word "Lender" the words "and
Frost" shall be added; and
(c) in the second line, after the word "Lender" the words "or
Frost (as the case may be)" shall be added.
33. In Section 6(h):
(a) in the third line, after the word "LENDER" the words "OR FROST
(AS THE CASE MAY BE)" shall be added;
(b) in the ninth line, the words "(B) GUARANTOR OR (C)" shall be
deleted and replaced with the words "OR (B)"; and
(c) the final two sentences shall be deleted and replaced with the
words:
A-8
<PAGE> 16
"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.".
34. In Section 6(i) after each occurrence of the word "Lender" the words
"or Frost (as the case may be)" shall be added.
35. In Section 6(m) the word "AND LENDER" shall be deleted and replaced
with the words ", LENDER AND FROST" shall be added.
36. 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.
A-9
<PAGE> 17
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, 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.
37. In Exhibit A, in the definition of Business Day:
(a) the words "State of North Carolina" shall be deleted and
replaced with the words "Quebec, Canada"; and
(b) 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.
A-10
<PAGE> 18
38. 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."
39. 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".
40. In Exhibit A, in the definition of Principal Shareholder, the words
"Guarantor," shall be deleted.
41. Exhibit B shall be deleted in its entirety and replaced with the
attached Exhibit.
*
A-11
<PAGE> 19
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> 20
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
AMOUNT OF PRINCIPAL UNPAID
AMOUNT OF PAID PRINCIPAL NOTATION
DATE LOAN OR PREPAID BALANCE MADE BY
---- ---- ---------- ------- -------
<S> <C> <C> <C> <C>
</TABLE>
A-13
<PAGE> 1
EXHIBIT 99.2
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> 2
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> 3
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:
Title:
3
<PAGE> 4
BIOCHEM PHARMA INC.
By:/s/ Charles-A. Tessier
------------------------------------------
Name:
Title:
By:/s/ Fred Andrew
------------------------------------------
Name:
Title:
<PAGE> 5
FROST-NEVADA LIMITED PARTNERSHIP
By:/s/ David Moskowitz
------------------------------------------
Name:
Title:
<PAGE> 6
SHAREHOLDER
/s/ David Moskowitz
---------------------------------------------
(Signature)
n/a
---------------------------------------------
(Signature of Spouse)
n/a
---------------------------------------------
(Print Name of Shareholder)
3500 Lakeside Court, Suite 200
---------------------------------------------
(Print Street Address)
Reno, Nevada 89509
---------------------------------------------
(Print City, State and Zip)
(610) 640-9790
---------------------------------------------
(Print Telephone Number)
59-294-9083
---------------------------------------------
(Social Security or Tax I.D. Number)
<PAGE> 7
IVAX CORPORATION
By:/s/ Phillip Frost, M.D.
------------------------------------------
Name:
Title:
<PAGE> 1
Exhibit 99.3
SOURCE: BioChem Pharma Inc.
DATE: APRIL 17, 2000
SUBJECT: NEWS -- For Immediate Release
BioChem Pharma Announces Amendments to its Agreements
with Baxter International, Inc.
Laval, Quebec, Canada -- BioChem Pharma Inc. (NASDAQ: BCHE: TSE: BCH) today
announced amendments to its agreements with Baxter International, Inc. (NYSE:
BAX)("BAXTER") concerning BAXTER's acquisition of North American Vaccine, Inc.
(AMEX: NVX)("NAVA"). The amendments, which were made to allow for a later than
expected closing date, provide for an adjustment in the purchase price and
secure financing of NAVA's working capital requirements until closing. The
proceeds of the financing will principally be used to repay existing short-term
borrowings, to continue building NAVA's inventory of meningitis C vaccine, and
to meet other working capital requirements. The amended agreements call for the
transaction to close by June 30, 2000.
BioChem Pharma has agreed to support an amended offer of U.S.$6.73 per NAVA
share (U.S.$7 in the original agreement), payable in BAXTER stock and cash. In
addition, BioChem Pharma has made a U.S.$40-million working capital facility
available to NAVA. The loan carries an annual interest rate of 15% and is
secured by company assets, including meningitis C vaccine inventories and
certain intellectual property. It is repayable in full plus a 25% premium on
June 30, 2000 or upon a change in control of NAVA, whichever occurs first.
BioChem Pharma is NAVA's largest shareholder, holding approximately 32% of the
outstanding common shares. Dr. Phillip Frost, NAVA's second largest
shareholder, has agreed to make an additional U.S.$5-million facility available
on similar terms and conditions.
BioChem Pharma is an international biopharmaceutical company dedicated to the
research, development and commercialization of innovative products for the
prevention and treatment of human diseases with a focus in the anti-infective
and anticancer areas.
STATEMENTS MADE IN THIS PRESS RELEASE INCLUDE FORWARD-LOOKING STATEMENTS MADE
PURSUANT TO THE SAFE HARBOR PROVISIONS OF THE SECURITIES LITIGATION REFORM ACT
OF 1995. SUCH STATEMENTS, INCLUDE, WITHOUT LIMITATION, THOSE RELATING TO THE
CLOSING OF THE BAXTER INTERNATIONAL, INC. ACQUISITION OF NORTH AMERICAN
VACCINE, INC. ACTUAL EVENTS COULD DIFFER MATERIALLY FROM THOSE PROJECTED HEREIN
AND DEPEND ON A NUMBER OF FACTORS, INCLUDING THE UNCERTAINTIES RELATED TO THE
REGULATORY PROCESS AND THE COMMERCIALIZATION OF NAVA'S MENINGITIS C VACCINE.
INVESTORS SHOULD CONSULT THE CORPORATION'S ONGOING QUARTERLY FILINGS, ANNUAL
REPORTS AND 40-F FILLINGS FOR ADDITIONAL INFORMATION ON RISKS AND UNCERTAINTIES
RELATING TO THESE FORWARD-LOOKING STATEMENTS. INVESTORS ARE CAUTIONED NOT TO
RELY ON THESE FORWARD-LOOKING STATEMENTS. THE CORPORATION DOES NOT UNDERTAKE TO
UPDATE THESE FORWARD-LOOKING STATEMENTS.
FOR ADDITIONAL INFORMATION:
Peter McBride (investors)
(450) 978-7771
Michele Roy (media)
(450) 978-7938
Corporate Communications
BioChem Pharma Inc.
E-mail: [email protected]
