SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________________________
SCHEDULE 13D
(RULE 13D-101)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 4){1}
BIOWHITTAKER, INC.
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(Name of issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
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(Title of class of securities)
09066T 10 8
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(CUSIP number)
RICHARD T. MCDERMOTT, ESQ.
ROGERS & WELLS
200 PARK AVENUE
NEW YORK, NEW YORK 10166
(212) 878-8000
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(Name, address and telephone number of person
authorized to receive notices and communications)
AUGUST 22, 1997
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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 <square>.
NOTE. Six copies of this statement, including all exhibits,
should be filed with the Commission. SEE Rule 13d-1 (a) for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 9 Pages)
Exhibit A begins after Page 9.
__________________________
{1} 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 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, SEE the
NOTES.)
PAGE 1 OF 9 PAGES
PAGE
<PAGE>
SCHEDULE 13D
CUSIP NO. 09066T 10 8 PAGE 2 OF 9 PAGES
<TABLE>
<CAPTION>
<S> <C> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ANASCO GMBH
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) <square>
(b) <square>
3 SEC USE ONLY
4 SOURCE OF FUNDS*
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(C) OR 2(E) <square>
6 CITIZENSHIP OR PLACE OF ORGANIZATION
FEDERAL REPUBLIC OF GERMANY
7 SOLE VOTING POWER
2,097,043
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY NONE
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 2,097,043
10 SHARED DISPOSITIVE POWER
NONE
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON <square>
2,097,043
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* <square>
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
APPROXIMATELY 19.9%
14 TYPE OF REPORTING PERSON*
CO
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
PAGE 2 OF 9 PAGES
<PAGE>
This Amendment No. 4 ("Amendment No. 4") to the Statement on
Schedule 13D dated November 7, 1991 (the "Schedule 13D") is filed by Anasco
GmbH, a limited liability company duly incorporated in Germany ("Anasco"),
in connection with its beneficial ownership of Common Stock of
BioWhittaker, Inc., a Delaware corporation. Schedule 13D as previously
amended by Amendment No. 1, dated January 11, 1995, Amendment No. 2, dated
May 22, 1995, and Amendment No. 3, dated May 16, 1997, is hereby amended as
set forth below.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 of Schedule 13D is amended in its entirety to read as
follows:
Anasco acquired the shares of Common Stock for investment
purposes. The acquisition was consummated pursuant to the Stock Purchase
Agreement, dated as of September 24, 1991, by and between the Issuer and
Anasco (the "Stock Purchase Agreement").
Anasco's acquisition of the Common Stock was effected in
connection with a Joint Venture and Partnership Agreement, dated
October 31, 1991 (the "Joint Venture Agreement"), by and between Boehringer
Ingelheim Bioproducts, Inc., a Delaware corporation and affiliate of Anasco
("BI Bioproducts"), and BioWhittaker International, Inc., a Delaware
corporation and at that time a wholly-owned subsidiary of the Issuer ("BW
Int'l"). Pursuant to the Joint Venture Agreement, the name of the joint
venture formed thereunder was "Boehringer Ingelheim BioWhittaker," a
Delaware general partnership (the "Partnership"). The Partnership was
formed for the purpose of manufacturing and marketing certain products of
the Issuer outside the United States.
On May 5, 1995, Boehringer Ingelheim International GmbH, a German
limited liability company ("BII GmbH"), an affiliate of Anasco, purchased
all of the issued and outstanding shares of capital stock of BW Int'l (the
"BW Int'l Stock") pursuant to a stock purchase agreement dated April 30,
1995 (the "BW Int'l Stock Purchase Agreement"). Subsequently, the name of
BW Int'l was changed to Boehringer Ingelheim Bioproducts International,
Inc. ("BIBI, Inc.") As a result of this purchase, BII GmbH became the 100%
owner of both general partners of the Partnership, and the Partnership,
accordingly, is now wholly owned by an affiliate of Anasco. The name
of the Partnership was subsequently changed to "Boehringer Ingelheim
Bioproducts."
In connection with an earlier public announcement by the Issuer
concerning its review of various strategic options and with a presently
pending reassessment of the bioproducts and biosystems businesses of
companies within the Boehringer Ingelheim group, initial steps have been
taken to determine whether there might be prospective purchasers of various
types of assets related to the group's bioproducts and biosystems
businesses. Depending on the results of this reassessment, BII GmbH may
determine to dispose of some or all of such types of assets, including but
not limited to some or all of its equity interest in BIBI, Inc.
After the close of business on August 22, 1997, the Issuer
entered into an Agreement and Plan of Merger, dated August 22, 1997, with
PAGE 3 PF 9 PAGES
<PAGE>
Cambrex Corporation, a Delaware corporation, and BW Acquisition
Corporation, a Delaware corporation and wholly-owned subsidiary of Cambrex
Corporation (the "Merger Agreement"), pursuant to which BW Acquisition
Corporation would be merged with and into the Issuer (the "Merger"). In
furtherance of the Merger, Cambrex Corporation has proposed that BW
Acquisition Corporation make an offer to purchase for cash all of the
issued and outstanding Common Stock and all associated rights to purchase
preferred stock (the "Offer").
Cambrex Corporation required, as a condition to its entering into
the Merger Agreement and commencing the Offer, that Anasco enter into, and
Anasco agreed to enter into, the Stockholders Agreement, dated as of August
22, 1997, by and among Cambrex Corporation, BW Acquisition Corporation
and Anasco (the "Stockholders Agreement"). Concurrently with the Merger
Agreement, the Stockholders Agreement was executed after the close of
business on Friday, August 22, 1997, substantially in the form of Exhibit
A of this Amendment No. 4.
Pursuant to Section 2 of the Stockholders Agreement, Anasco
irrevocably agreed duly to tender all of its shares of Common Stock
pursuant to the terms of the Offer and not to withdraw such shares prior to
the expiration of the Offer.
Pursuant to Section 3(a) of the Stockholders Agreement, Anasco
agreed that, during the time that the Stockholders Agreement is in effect,
at any meeting of the stockholders of the Issuer, however called, or in
connection with any written consent of the stockholders of the Issuer,
Anasco shall vote (or cause to be voted ) all of its shares of Common Stock
(i) in favor of the Merger, the execution and delivery by the Issuer of the
Merger Agreement and the approval of the terms thereof and each of the
other actions contemplated by the Merger Agreement and the Stockholders
Agreement and any actions required in furtherance thereof; (ii) against any
action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the
Issuer under the Merger Agreement, the Offer or the Stockholders Agreement;
and (iii) except as specifically requested in writing by Cambrex
Corporation in advance, against the following actions (other than the
Merger and the transactions contemplated by the Merger Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Issuer or its subsidiaries; (B) a
sale, lease or transfer of a material amount of assets of the Issuer or its
subsidiaries or a reorganization, recapitalization, dissolution,
liquidation or winding up of the Issuer or any of its subsidiaries; (C) any
change in the majority of the board of directors of the Issuer; (D) any
material change in the present capitalization of the Issuer or any
amendment of the Issuer's certificate of incorporation; (E) any other
material change in the Issuer's corporate structure or business; and (F)
any other action which is intended or could reasonably be expected to
impede, interfere with, delay, postpone, discourage or materially adversely
affect the Merger, the transactions contemplated by the Merger Agreement or
the Stockholders Agreement or the contemplated economic benefits of any of
the foregoing. Anasco shall not enter into any agreement or understanding
with any Person (as defined in the Stockholders Agreement) prior to the
Termination Date (as defined in Section 9 of the Stockholders Agreement) to
vote in any manner inconsistent with clause (i), (ii) or (iii) of the
preceding sentence.
PAGE 4 OF 9 PAGES
<PAGE>
Pursuant to Section 4 of the Stockholders Agreement, except in
accordance with the terms of the Stockholders Agreement, Anasco covenanted
and agreed as follows: Pursuant to Section 4(a) Anasco shall not, directly
or indirectly (including through advisors, agents or other intermediaries),
initiate, solicit, negotiate, encourage or provide confidential information
to facilitate any proposal or offer by any Person (as defined in the
Stockholders Agreement) that constitutes or could reasonably be expected to
lead to an Acquisition Transaction (as defined in the Merger Agreement);
provided, however, that no provision of the Stockholders Agreement shall
prohibit or in any way restrict the right of Anasco and its affiliates to
initiate, solicit, negotiate, encourage or provide confidential information
to any party in connection with a possible sale or other disposition by
Anasco or such affiliate of its interest in the Partnership. If Anasco
receives any such inquiry or proposal, then Anasco shall promptly inform
Cambrex Corporation of the material terms and conditions, if any, of such
inquiry or proposal and the identity of the Person (as defined in the
Stockholders Agreement) making it. Anasco further agrees that it will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted theretofore with
respect to any of the forgoing. Nothing in Section 4(a) of the
Stockholders Agreement shall restrict or limit the ability of Anasco's
designee on the board of directors of the Issuer to take or perform in such
capacity any of the actions or do any of the things the Issuer is permitted
to take or perform under Section 4.1(a) and 4.1(b) of the Merger Agreement.
Pursuant to Section 4(b) of the Stockholders Agreement Anasco
shall not, directly or indirectly, (i) except pursuant to the terms of the
Merger Agreement, the Offer and the Stockholders Agreement, offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of
(collectively, "Disposition") enforce or permit the execution of the
provisions of any agreement with the Issuer whereby the Issuer may be
obligated to repurchase, or enter into any other contract, option or other
arrangement or understanding with respect to, or otherwise consent to the
Disposition of any or all of Anasco's shares of Common Stock or any
interest therein; except as contemplated by the Stockholders Agreement,
grant any proxies or powers of attorney, deposit any shares of Common Stock
into a voting trust or enter into a voting agreement with respect to any
shares of Common Stock; or (iii) take any action that would make any
representation or warranty of Anasco contained in the Stockholders
Agreement untrue or incorrect or have the effect of preventing or disabling
Anasco from performing its obligations under the Stockholders Agreement.
Pursuant to Section 4(c) of the Stockholders Agreement, Anasco
waived any rights of appraisal or rights to dissent from the Merger that it
may have.
Pursuant to Section 5(a) of the Stockholders Agreement, Anasco
granted to BW Acquisition Corporation an irrevocable option (the "Cambrex
Option") to purchase Anasco's shares of Common Stock, on the terms and
subject to the conditions set forth in the Stockholders Agreement. Section
5(b) thereof provides that the Cambrex Option may be exercised by BW
Acquisition Corporation, as a whole and not in part, at any time and from
time to time from and after any time when the Merger Agreement has been
terminated in accordance with its terms and prior to the Termination Date
(as defined in Section 9 of the Stockholders Agreement), subject to certain
specified conditions set forth in Section 5(f) of the Stockholders
PAGE 5 OF 9 PAGES
<PAGE>
Agreement. Section 5(e) of the Stockholders Agreement provides that the
purchase price of Anasco's shares of Common Stock, upon the exercise by BW
Acquisition of the Cambrex Option, shall be an amount equal to the product
of the Merger Consideration (as defined in the Merger Agreement) and the
number of shares purchased pursuant to the exercise of the Cambrex Option.
Under Section 7 of the Stockholders Agreement, Anasco agreed that
the Stockholders Agreement and the obligations thereunder shall attach to
Anasco's shares of Common Stock and shall be binding upon any Person (as
defined in the Stockholders Agreement) to which legal or beneficial
ownership of such shares shall pass, whether by operation of law or
otherwise. Pursuant to Section 8 of the Stockholders Agreement, Anasco
agreed with, and covenanted to, Cambrex Corporation, among other things,
that Anasco shall not request that the Issuer register the transfer (book-
entry or otherwise) of any certificate or uncertificated interest
representing any of Anasco's shares of Common Stock, unless such transfer
is made in compliance with the Offer or the Stockholders Agreement.
Section 9 of the Stockholders Agreement provides that the
Stockholders Agreement shall terminate upon the earlier of (a) twelve
months from the date thereof or (b) the Effective Time (as defined in the
Merger Agreement); provided, however, that if the Issuer is not in breach
of its obligations under the Merger Agreement and Anasco is not in breach
of its obligations under the Stockholders Agreement, the Stockholders
Agreement shall terminate upon termination of the Merger Agreement pursuant
to certain specified provisions set forth therein. The date of the
termination of the Stockholders Agreement is referred to in the
Stockholders Agreement as the "Termination Date."
In addition, certain representations and warranties of Anasco are
set forth in Section 1 of the Stockholders Agreement. Other terms and
conditions are also included in the Stockholders Agreement.
Under the terms of the Stock Purchase Agreement, Anasco and its
affiliates may not sell 5% or more of the Issuer's outstanding voting
securities in any transaction or series of related transactions without
first giving the Issuer an opportunity to purchase such securities at a
price equal to the price offered by the prospective purchaser. Anasco has
been informed by the Issuer that its board of directors has voted to waive
(i) certain rights of first refusal granted to the Issuer pursuant to the
Stock Purchase Agreement to purchase shares of Common Stock from Anasco;
(ii) certain prohibitions on Anasco pursuant to the Stock Purchase
Agreement under which Anasco is not permitted to engage in, encourage or
initiate certain acquisition, solicitation, and proxy activities or to
grant certain proxies or enter into certain voting arrangements or
agreements, and (iii) any other rights of Anasco pursuant to the Stock
Purchase Agreement to the extent that, absent such waiver, the execution of
the Stockholder Agreement by Anasco or consummation of the transactions
contemplated thereby would constitute a violation or breach of any covenant
of the Stock Purchase Agreement; provided however, that upon the expiration
of the term of the Stockholder Agreement such rights of first refusal as
granted by the Stock Purchase Agreement, such prohibitions set forth in the
Stock Purchase Agreement, and such other rights of the Issuer pursuant to
the Stock Purchase Agreement will continue in effect as if no such waiver
had been granted.
PAGE 6 OF 9 PAGES
<PAGE>
No assurances can be given that the Offer will be made by BW
Acquisition Corporation, or if it is made that it will be completed. If
the Merger has not been consummated and the Merger Agreement has been
terminated in accordance with its terms and prior to the Termination Date
(as defined in Section 9 of the Stockholders Agreement), no assurances can
be given that BW Acquisition Corporation will exercise the Cambrex Option.
Except as indicated in this Item 4, Anasco has no other present
plans or proposals with respect to the Issuer. In the event that the Offer
is not completed or if the Merger Agreement is terminated and BW Acquisi-
tion Corporation does not exercise the Cambrex Option, upon the basis of
Anasco's continuing review of the Issuer's business and its investment
position, Anasco may develop other plans or proposals with respect to the
Issuer.
Under the Stock Purchase Agreement, Anasco and its affiliates
were required to limit their beneficial ownership in shares of Common Stock
of the Issuer to not more than 19.9% prior to December 2, 1993.
Furthermore, prior to December 2, 1993, Anasco and its affiliates were not
permitted to sell or otherwise to transfer any of their beneficial
ownership in shares of Common Stock of the Issuer other than to affiliates
which agreed to abide by such restrictions. As of the date of this
Amendment No. 4, these restrictions are no longer in effect.
Any disposition by BII GmbH of assets related to the Boehringer
Ingelheim group's bioproducts and biosystems businesses, including but not
limited to some or all of its equity interest in BIBI, Inc., would depend
on the ultimate results of the reassessment within the Boehringer
Ingelheim group and would be subject to the applicable purchase price of
such assets and/or the capital stock of BIBI, Inc., the availability of
prospective purchasers and subsequent developments affecting such assets
and/or BIBI, Inc., the respective businesses and products of BIBI, Inc.,
the bioproducts and biosystems industry as a whole, other investment and
business opportunities available to BII GmbH, general stock market
and economic conditions, tax considerations, and other factors.
Any disposition of capital stock of BIBI, Inc. by BII GmbH would
be subject to the terms and conditions of the BW Int'l Stock Purchase
Agreement. [CHANGE OF CONTROL CLAUSE?] Among other things, the BW Int'l
Stock Purchase Agreement provides for an option (the "BW Int'l Option") in
favor of the Issuer to repurchase the BW Int'l Stock, such option being
exercisable, subject to certain conditions, on or prior to April 30, 2000.
Moreover, under the BW Int'l Stock Purchase Agreement, the Issuer was
granted certain rights reserved in the Joint Venture Agreement to the
partners in the Partnership (the "Restrictive Rights"), such Restrictive
Rights to be in effect during the exercise period of the BW Int'l Option.
BII GmbH has the right, however, to terminate the BW Int'l Option following
a change of control of the Issuer.
As the result of the agreements set forth in the BW Int'l Stock
Purchase Agreement, references throughout this Schedule 13D to the Joint
Venture Agreement are deemed to be amended to reflect the purchase by BII
GmbH of 100% of the BW Int'l Stock, the grant of the BW Int'l Option and
the Restrictive Rights.
Other than as described above in this Item 4, as of the date of
this Amendment No. 4, Anasco and its affiliates have no plans or proposals
which relate to or would result in:
PAGE 7 OF 9 PAGES
<PAGE>
(a) The acquisition by any person of additional securities of the
Issuer, or the disposition of securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its
subsidiaries;
(c) A sale or transfer of a material amount of assets of the Issuer
or of any of its subsidiaries;
(d) Any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend
policy of the Issuer;
(f) Any other material change in the Issuer's business or corporate
structure;
(g) Changes in the Issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Issuer by any person;
(h) Causing a class of securities of the Issuer to be de-listed from
a national securities exchange or to cease to be authorized to be quoted in
an inter-dealer quotation system of a registered national securities
association;
(i) A class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934, as amended; or
(j) Any action similar to any of those enumerated above.
ITEM 6 CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIP WITH RESPECT TO SECURITIES OF THE ISSUER
Item 6 of Schedule 13D is amended by the addition of the
following paragraph:
Cambrex Corporation required, as a condition to its entering into
the Merger Agreement and commencing the Offer, that Anasco enter into, and
Anasco agreed to enter into, the Stockholders Agreement, pursuant to
Section 2 of which Anasco irrevocably agreed duly to tender all of its
shares of Common Stock pursuant to the terms of the Offer and not to
withdraw such shares prior to the expiration of the Offer. In addition,
pursuant to Section 5(a) of the Stockholders Agreement, Anasco granted to
BW Acquisition Corporation an irrevocable option to purchase Anasco's
shares of Common Stock on the terms and subject to the conditions set forth
in Section 5 of the Stockholders Agreement. The terms and conditions of
the Stockholders Agreement are more fully described in Item 4 of this
Amendment No. 4. Concurrently with the Merger Agreement, the Stockholders
Agreement was executed after the close of business on Friday, August 22,
1997, substantially in the form of Exhibit A of this Amendment No. 4.
ITEM 7 MATERIALS TO BE FILED AS EXHIBITS
Exhibit A: Form of Stockholders Agreement, dated as of August 22, 1997,
among Cambrex Corporation, BW Acquisition Corporation and Anasco
GmbH.
PAGE 8 OF 9 PAGES
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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.
Dated: August 25, 1997
ANASCO GMBH
By: /S/ GERHARD HUBER
______________________
Name: Gerhard Huber
Title: Authorized Signatory
By: /S/ JUERGEN ROEMHILD
______________________
Name: Juergen Roemhild
Title: Authorized Signatory
<PAGE>
EXHIBIT A
[FORM OF STOCKHOLDERS AGREEMENT, DATED AS OF AUGUST 22, 1997, AMONG
CAMBREX CORPORATION, BW ACQUISITION CORPORATION AND ANASCO GMBH]
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of August 22, 1997 among Cambrex
Corporation, a Delaware corporation ("Parent"), BW Acquisition Corporation,
a Delaware corporation ("Purchaser") and ANASCO GmbH, a German limited
liability company ("Stockholder").
WHEREAS, concurrently herewith Parent, the Purchaser, and
BioWhittaker, Inc., a Delaware corporation (the "Company"), are entering
into an Agreement and Plan of Merger of even date herewith (as such
agreement may be amended from time to time, the "Merger Agreement";
capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to them in the Merger Agreement) pursuant to
which the Purchaser will be merged with and into the Company (the
"Merger"); and
WHEREAS, in furtherance thereof, the Parent proposes that the
Purchaser make an offer (the "Offer") to purchase for cash all of the
issued and outstanding shares of common stock of the Company, and all
associated rights to purchase preferred stock, at a price of $11.625 per
share net to the seller;
WHEREAS, Parent has required, as a condition to its entering into
the Merger Agreement and commencing the Offer, that Stockholder enter into,
and Stockholder has agreed to enter into, this Agreement.
NOW, THEREFORE, to satisfy this condition and in consideration of
Parent's entering into the Merger Agreement and causing the Offer to be
commenced, respectively, and in consideration of the premises and the
representations, warranties and covenants contained herein, the parties
agree as follows:
Exh. A-1
<PAGE>
1. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder
hereby represents and warrants to Parent as follows:
(a) OWNERSHIP OF SHARES. (i) Stockholder is the record holder
and beneficial owner of the number of shares of the common stock of
the Company, par value $.01 per share (the "Company Common Stock"),
set forth opposite Stockholder's name on Schedule A hereto (the
"Existing Shares", and together with any shares of Company Common
Stock acquired by Stockholder after the date hereof and prior to the
termination hereof, whether upon exercise of options or warrants,
conversion of convertible securities, purchase, exchange or otherwise,
the "Shares").
(ii) On the date hereof, the Existing Shares set forth opposite
Stockholder's name on Schedule A constitute all of the shares of
Company Common Stock owned by Stockholder.
(iii) Stockholder has (A) sole power of disposition; (B) sole
voting power; and (C) sole power to demand dissenter's or appraisal
rights, in each case with respect to all of Stockholder's Existing
Shares and with no restrictions on such rights, subject to applicable
federal securities laws and the terms of this Agreement.
(b) POWER; BINDING AGREEMENT. Stockholder has all requisite
legal capacity, power and authority to enter into and perform all of
Stockholder's obligations under this Agreement. The execution,
delivery and performance of this Agreement by Stockholder will not
violate any other agreement to which Stockholder is a party or by
which Stockholder is bound including, without limitation, any voting
agreement, stockholders agreement, voting trust or other agreement.
This Agreement has been duly and validly authorized, executed and
delivered by Stockholder and constitutes a valid and binding agreement
of Stockholder, enforceable against Stockholder in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
the enforcement of creditors' rights generally or by general
principles of equity. There is no beneficiary of or holder of a
voting trust certificate whose consent is required for the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(c) NO CONFLICTS. Except for filing under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), if
applicable, (I) no filing with, and no permit, authorization, consent
or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by Stockholder and the
consummation by Stockholder of the transactions contemplated hereby
and (II) neither the execution and delivery of this Agreement by
Stockholder nor the consummation by Stockholder of the transactions
contemplated hereby nor compliance by Stockholder with any of the
provisions hereof shall (A) conflict with or result in any breach of
the applicable organization documents applicable to Stockholder, (B)
result in a material violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to
Exh. A-2
<PAGE>
any third party right of termination, cancellation, modification,
prepayment or acceleration) under any of the terms, conditions or
provisions of any material note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Stockholder is a party
or by which such Stockholder or any of such Stockholder's properties
or assets may be bound or (C) violate any order, writ, injunction,
decree, judgment, statute, rule, regulation or governmental permit or
license (collectively, "Laws") applicable to Stockholder or any of
such Stockholder's properties or assets.
(d) Stockholder's Shares and the certificates representing
Shares are now and at all times during the term hereof will be held by
Stockholder, or by a nominee or custodian for the benefit of
Stockholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings, arrangements or
any other encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder.
(e) No broker, investment banker, financial adviser or other
Person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission payable by Parent or Purchaser in
connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of Stockholder.
(f) Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
2. AGREEMENT TO TENDER. Stockholder hereby irrevocably agrees
to duly tender all of the Shares of Stockholder pursuant to the terms of
the Offer and not to withdraw such Shares prior to the expiration of the
Offer.
3. AGREEMENT TO VOTE; PROXY.
(a) VOTING. Stockholder hereby agrees that, during the time
this Agreement is in effect, at any meeting of the stockholders of the
Company, however called, or in connection with any written consent of the
stockholders of the Company, Stockholder shall vote (or cause to be voted)
the Shares of Stockholder (I) in favor of the Merger, the execution and
delivery by the Company of the Merger Agreement and the approval of the
terms thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance hereof
and thereof; (II) against any action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation
or agreement of the Company under the Merger Agreement, the Offer or this
Agreement; and (III) except as specifically requested in writing by Parent
in advance, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its subsidiaries; (B) a sale, lease or
Exh. A-3
<PAGE>
transfer of a material amount of assets of the Company or its subsidiaries
or a reorganization, recapitalization, dissolution, liquidation or winding
up of the Company or any of its subsidiaries; (C) any change in the
majority of the board of directors of the Company; (D) any material change
in the present capitalization of the Company or any amendment of the
Company's Certificate of Incorporation; (E) any other material change in
the Company's corporate structure or business; and (F) any other action
which is intended or could reasonably be expected to impede, interfere
with, delay, postpone, discourage or materially adversely affect the
Merger, the transactions contemplated by the Merger Agreement or this
Agreement or the contemplated economic benefits of any of the foregoing.
Stockholder shall not enter into any agreement or understanding with any
Person prior to the Termination Date (as defined in Section 9 hereof) to
vote in any manner inconsistent with clause (i), (ii) or (iii) of the
preceding sentence.
(b) PROXY. STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS
PURCHASER, PETER THAUER AND PETER TRACEY IN THEIR RESPECTIVE CAPACITIES AS
OFFICERS OF PURCHASER, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO
ANY SUCH OFFICE OF PURCHASER, AND ANY OTHER DESIGNEE OF PURCHASER, EACH OF
THEM INDIVIDUALLY, SUCH STOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION
DATE) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE
THE SHARES AS INDICATED IN SECTION 3(a) ABOVE. STOCKHOLDER INTENDS THIS
PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED WITH AN
INTEREST AND WILL TAKE SUCH FURTHER ACTION AND EXECUTE SUCH OTHER
INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND
HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY STOCKHOLDER WITH RESPECT TO
STOCKHOLDER'S SHARES.
4. CERTAIN COVENANTS OF STOCKHOLDER. Except in accordance with
the terms of this Agreement, Stockholder hereby covenants and agrees as
follows:
(a) NO SOLICITATION. Stockholder shall not, directly or
indirectly (including through advisors, agents or other intermediaries),
initiate, solicit, negotiate, encourage or provide confidential information
to facilitate any proposal or offer by any Person that constitutes or could
reasonably be expected to lead to an Acquisition Transaction; provided,
however, that no provision of this Agreement shall prohibit or in any way
restrict the right of Stockholder and its affiliates to initiate, solicit,
negotiate, encourage or provide confidential information to any party in
connection with a possible sale or other disposition by Stockholder or such
affiliate of its interest in Boehringer Ingelheim Bioproducts, a Delaware
general partnership. If Stockholder receives any such inquiry or proposal,
then Stockholder shall promptly inform Parent of the material terms and
conditions, if any, of such inquiry or proposal and the identity of the
Person making it. Stockholder will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any of the foregoing. Nothing
in this Section 4(a) shall restrict or limit the ability of Stockholder's
designee on the Board of Directors of the Company to take or perform in
such capacity any of the actions or do any of the things that the Company
is permitted to take or perform under Section 4.1(a) and 4.1(b) of the
Merger Agreement.
Exh. A-4
<PAGE>
(b) RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE;
RESTRICTION ON WITHDRAWAL. Stockholder shall not, directly or indirectly:
(I) except pursuant to the terms of the Merger Agreement, the Offer and
this Agreement, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of (collectively, "Disposition"), enforce or
permit the execution of the provisions of any agreement with the Company
whereby the Company may be obligated to repurchase, or enter into any other
contract, option or other arrangement or understanding with respect to, or
otherwise consent to the Disposition of any or all of Stockholder's Shares
or any interest therein; (II) except as contemplated hereby, grant any
proxies or powers of attorney, deposit any Shares into a voting trust or
enter into a voting agreement with respect to any Shares; or (III) take any
action that would make any representation or warranty of Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling Stockholder from performing Stockholder's obligations under this
Agreement.
(c) WAIVER OF APPRAISAL AND DISSENTER'S RIGHTS. Stockholder
hereby waives any rights of appraisal or rights to dissent from the Merger
that Stockholder may have.
5. OPTION. (a) Stockholder hereby grants to Purchaser an
irrevocable option (the "Option") to purchase Stockholder's Shares, on the
terms and subject to the conditions set forth herein.
(b) The Option may be exercised by Purchaser, as a whole and not in
part, at any time and from time to time from and after any time when the
Merger Agreement has been terminated in accordance with its terms and prior
to the Termination Date, subject to the conditions set forth in Section
5(f).
(c) If Purchaser wishes to exercise the Option, Purchaser shall
send a written notice (the "Option Notice") to Stockholder of its intention
to exercise the Option, specifying the place, and, if then known, the time
and the date (the "Closing Date") of the closing (the "Closing") of the
purchase. The Closing Date shall occur on the third business day after the
date on which such notice is delivered.
(d) At the Closing, Stockholder shall deliver to Purchaser (or
its designee) all of Stockholder's Shares required to be delivered pursuant
to the Option Notice by delivery of a certificate or certificates
evidencing such Shares, duly endorsed to Purchaser or accompanied by stock
powers duly executed in favor of Purchaser, with all necessary stock
transfer stamps affixed.
(e) At the Closing, Purchaser shall pay, and Parent shall cause
Purchaser to pay, to Stockholder, by wire transfer in immediately available
funds to an account specified by Stockholder in writing no more than two
days prior to the Closing, an amount equal to the product of the Merger
Consideration and the number of shares purchased pursuant to the exercise
of the Option.
Exh. A-5
<PAGE>
(f) The Closing shall be subject to the satisfaction of each of
the following conditions:
(i) no court, arbitrator or governmental body, agency or
official shall have issued any order, decree or ruling and there shall
not be any statute, rule or regulation, restraining, enjoining or
prohibiting the consummation of the purchase and sale of the Shares
pursuant to the exercise of the Option;
(ii) any waiting period applicable to the consummation of the
purchase and sale of the Shares pursuant to the exercise of the Option
under the HSR Act shall have expired or been terminated; and
(iii) all actions by or in respect of, and any filing with, any
governmental body, agency, official, or authority required to permit
the consummation of the purchase and sale of the Shares pursuant to
the exercise of the Option shall have been obtained or made and shall
be in full force and effect.
6. FURTHER ASSURANCES. From time to time, at any party's
request and without further consideration, each other party shall execute
and deliver such additional documents and take all such further action as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
7. OBLIGATIONS ATTACH TO SHARES. Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Shares and shall be binding upon any Person to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or
otherwise.
8. STOP TRANSFER. Stockholder agrees with, and covenants
to, Parent that Stockholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of Stockholder's Shares, unless such transfer is
made in compliance with the Offer or this Agreement. Stockholder agrees,
with respect to any Shares in certificated form, that Stockholder will
submit to the Company, within ten business days after the date hereof, the
certificates representing such Shares in order for the Company to inscribe
upon such certificates the following legend: "The shares of Common Stock,
par value $.0l per share, of BioWhittaker, Inc. (the "Company") represented
by this certificate are subject to a Stockholders Agreement dated as of
August 22, 1997, and may not be sold or otherwise transferred, except in
accordance therewith. Copies of such Agreement may be obtained at the
principal executive offices of the Company." Stockholder agrees that
within ten business days after the date hereof, Stockholder will no longer
hold any Shares, whether certificated or uncertificated, in "street name"
or in the name of any nominee.
9. TERMINATION. This Agreement shall terminate upon the
earlier of (a) twelve months from the date hereof or (b) the Effective
Time; PROVIDED, HOWEVER, that if the Company is not in breach of its
Exh. A-6
<PAGE>
obligations under the Merger Agreement and Stockholder is not in breach of
its obligations under this Agreement, this Agreement shall terminate upon
termination of the Merger Agreement (a) pursuant to Section 6.1(a), 6.1(d),
6.1(f)(i) and 6.1(g) thereof, (b) pursuant to Section 6.1(b), 6.1(c) and
6.1(e) thereof (in each case if no proposal for an Acquisition Transaction
has been made), or (c) by the Company pursuant to Section 6.1(f)(ii)
thereof (unless a proposal for an Acquisition Transaction has been made).
The date of termination of this Agreement is referred to herein as the
"Termination Date".
10. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; ASSIGNMENT. This Agreement (I) constitutes
the entire agreement among the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter
hereof and (II) shall not be assigned by operation of law or otherwise
without the prior written consent of (A) in the case of an assignment by
Stockholder, Parent and (B) in the case of an assignment by Parent or
Purchaser, Stockholder, provided that Parent may in its sole discretion
assign its rights and obligations hereunder to any of its direct or
indirect wholly-owned subsidiaries.
(b) AMENDMENTS. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a
written agreement executed the parties hereto.
(c) NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given (and shall be deemed to
have been duly given upon receipt) by delivery in person, facsimile, telex
or other standard form of telecommunications, by courier service, or by
registered or certified mail, postage prepaid, return receipt requested,
addressed
If to Parent or Purchaser, to:
Cambrex Corporation
One Meadowlands Plaza
East Rutherford, New Jersey 07073
Facsimile No.: (201) 804-9851
Attention: Peter Thauer, Esq.
With a copy to:
Debevoise & Plimpton
875 Third Avenue
New York New York 10022
Facsimile No.: (212) 909-6836
Attention: Ralph Arditi, Esq.
If to Stockholder, to:
Exh. A-7
<PAGE>
ANASCO GmbH
D-55216 Ingelheim am Rhein
Federal Republic of Germany
Facsimile No.: 011-44-6132-77-4080
With copies to:
Boehringer Ingelheim GmbH
Bereich Recht Marken Versicherung Immobilien
D-55216 Ingelheim am Rhein
Federal Republic of Germany
Facsimile No.: 011-44-6132-77-3256
and:
Rogers & Wells
200 Park Avenue
New York, New York 10166
Facsimile No.: (212) 878-8375
Attention: Richard T. McDermott, Esq.
or to such other address or facsimile number as the Person to whom notice
is given shall have previously furnished to the others in writing in the
manner set forth above.
(d) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without
giving effect to the conflicts of laws principles thereof.
(e) ENFORCEMENT. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which when taken together shall constitute one and the same Agreement.
(g) DESCRIPTIVE HEADINGS. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
(h) SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to
be effective and valid under applicable law but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
Exh. A-8
<PAGE>
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
(i) DEFINITIONS; CONSTRUCTION. For purposes of this Agreement:
(I) "beneficially own" or "beneficial ownership" with respect to
any securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Exchange
Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities
beneficially owned by a Person shall include securities beneficially
owned by all other Persons with whom such Person would constitute a
"group" as described in Section 13(d)(3) of the Exchange Act.
(IV) "Person" shall mean an individual, corporation,
partnership, limited liability company, joint venture, association,
trust, unincorporated organization or other entity.
(V) In the event of a stock dividend or distribution, or any
change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the
Shares as well as all such stock dividends and distributions and any
shares into which or for which any or all of the Shares may be changed
or exchanged.
(j) STOCK PURCHASE AGREEMENT. Stockholder acknowledges that its
rights under Section 8.01(c) of the Stock Purchase Agreement, dated
September 24, 1991, between the Company and Stockholder, to receive any
Compensation Amount (as defined in such agreement) will terminate and be of
no further force or effect from and after its sale of its Shares to the
Purchaser in the Offer, as contemplated in this Agreement.
Exh. A-9
<PAGE>
IN WITNESS WHEREOF, Parent, Purchaser and Stockholder have caused
this Agreement to be duly executed as of the day and year first above
written.
CAMBREX CORPORATION
BY: ____________________
Name:
Title:
BW ACQUISITION CORPORATION
BY: ____________________
Name:
Title:
ANASCO GmbH
BY: ____________________
Name:
Title:
BY: ____________________
Name:
Title:
Exh. A-10
<PAGE>
Schedule A
NAME NUMBER OF SHARES
ANASCO GmbH 2,097,043
D-55216 Ingelheim am Rhein
Federal Republic of Germany
Facsimile No.: 011-44-6132-77-4080
Exh. A-11
