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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
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BIOWHITTAKER, INC.
(NAME OF SUBJECT COMPANY)
BIOWHITTAKER, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(AND ASSOCIATED RIGHTS)
(TITLE OF CLASS OF SECURITIES)
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09066T 108
((CUSIP) NUMBER OF CLASS OF SECURITIES)
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F. DUDLEY STAPLES, ESQ.
GENERAL COUNSEL
BIOWHITTAKER, INC.
8830 BIGGS FORD ROAD
WALKERSVILLE, MD 21793-0127
(301) 898-7025
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF
OF THE PERSON(S) FILING STATEMENT)
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WITH A COPY TO
ARIEL VANNIER, ESQ.
VENABLE, BAETJER, HOWARD & CIVILETTI, LLP
1201 NEW YORK AVENUE. NW
WASHINGTON, DC 20005-3917
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ITEM 1. SECURITY AND SUBJECT COMPANY.
The name of the Subject Company is BioWhittaker, Inc., a Delaware
corporation (the "Company"), and the address of its principal executive offices
is 8830 Biggs Ford Road, Walkersville, MD 21793-0127. The title of the equity
securities to which this Solicitation/Recommendation Statement on Schedule 14D-9
(this "Statement") relates is the Company's Common Stock, par value $0.01 per
share (the "Common Stock"), and the associated rights to purchase Series A
Participating Cumulative Preferred Stock, par value $0.1 (the "Rights" and,
together with the Common Stock, the "Shares").
ITEM 2. TENDER OFFER OF THE BIDDER.
This Statement relates to the tender offer (the "Offer") made by BW
Acquisition Corporation, a Delaware corporation (the "Purchaser"), a wholly
owned subsidiary of Cambrex Corporation, a Delaware corporation ("Parent"),
disclosed in the Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1")
dated August 28, 1997, to purchase all of the outstanding Shares at a price of
$11.625 per Share, net to the seller in cash, without interest thereon (the
"Offer Price"), upon the terms and subject to the conditions set forth in the
Offer to Purchase dated August 28, 1997 (the "Offer to Purchase"), and the
related Transmittal Letter (the Schedule 14D-1, Offer to Purchase, Transmittal
Letter and related documents, together with any amendments or supplements
thereto, are sometimes collectively referred to herein as the "Offer
Documents"). A copy of the Offer to Purchase is filed as Exhibit 1 to this
Statement.
According to the Schedule 14D-1, the principal executive offices of Parent
and the Purchaser are located at One Meadowland Plaza, East Rutherford, NJ,
07073.
The Offer is being made pursuant to an Agreement and Plan of Merger dated
as of August 22, 1997 (the "Merger Agreement"), by and among Parent, the
Purchaser and the Company. A copy of the Merger Agreement is filed as Exhibit 2
to this Statement.
ITEM 3. IDENTITY AND BACKGROUND.
(a) The name and business address of the Company, which is the person
filing this Statement, are set forth in Item 1 above, which information is
incorporated herein by reference.
(b) Except as set forth in this Item 3(b) or in the Information Statement
attached to this Schedule
14-D as Annex A (the "Information Statement") to the knowledge of the Company,
as of the date hereof, there are no material contracts, agreements, arrangements
or understandings and no actual or potential conflicts of interest between the
Company and its affiliates and (1) the Company, its executive officers,
directors and affiliates or (2) Parent or the Purchaser or their respective
executive officers, directors or affiliates. The Information Statement is being
furnished to the Company's stockholders pursuant to Section 14(f) of the
Securities Exchange Act of 1934 (the "Exchange Act") and Rule 14f-1 issued under
the Exchange Act in connection with the Purchaser's right (after consummation of
the Offer) to designate persons to be appointed to the Board of Directors of the
Company other than at a meeting of the stockholders of the Company. The
Information Statement is hereby incorporated by reference.
(B)(1) CERTAIN ARRANGEMENTS BETWEEN THE COMPANY AND CERTAIN OF ITS DIRECTORS,
EXECUTIVE OFFICERS AND AFFILIATES
Funding of SERP
Prior to execution of the Merger Agreement, the Company terminated the
trust that funds the BioWhittaker Inc. Supplemental Executive Retirement Plan
(the "SERP") (the "Original SERP Trust") and immediately established a
replacement trust for the SERP (the "Replacement SERP Trust"). The terms of the
Replacement SERP Trust are substantially identical to those of the Original SERP
Trust. In May 1996, the Company voluntarily funded the Original SERP Trust with
300,000 Shares. In connection with the termination of the Original SERP Trust
and establishment of the Replacement SERP Trust, 179,656 Shares were returned to
the Company and cancelled, and the remaining 120,344 Shares were transferred to
the Replacement SERP Trust.
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Stock Options; Equity-based Plans
Pursuant to the Merger Agreement, all options to purchase shares of the
Company's Common Stock outstanding immediately prior to the Effective Time of
the Merger (as defined in the Merger Agreement), including, without limitation,
options outstanding pursuant to the Company's 1994 Stock Option Plan for
Non-Employee Directors and its 1991 Long-Term Stock Incentive Plan will be
canceled in exchange for consideration ("Option Consideration") equal to the
product of (i) the number of Shares previously subject to options and (ii) the
excess if any, of the Merger Consideration (as defined in the Merger Agreement)
over the exercise price for such Shares under such options.
The Company has agreed, pursuant to the Merger Agreement and subject to the
payment of the Option Consideration, effective as of the Effective Time of the
Merger, to cause to be terminated each stock option or other equity-based plan
maintained with respect to any Shares (or rights in respect thereof) other than
the BioWhittaker, Inc. Savings & Stock Investment Plan (the "BSSIP") and the
SERP.
Assumption of Change of Control Employment Agreements
The Company has Change of Control Employment Agreements ("Change of Control
Agreements") with Thomas Winkler, Philip L. Rohrer, Jr., Leif Olsen and F.
Dudley Staples, Jr. (each, an "Executive" and, collectively, the "Executives").
A copy of the form of Change of Control Agreement dated March 11, 1997, entered
into by the Company with each of the Executives is filed as Exhibit 6 to this
Statement. In connection with the Merger Agreement, and in accordance with the
terms of these agreements, Parent and the Purchaser have agreed to assume in all
respects the obligations of the Company pursuant to the Change of Control
Agreements.
Employment Letters
Each of the Executives who is a party to a Change of Control Agreement, and
Noel L. Buterbaugh, the President and Chief Executive Officer of the Company
(each, a "Senior Executive" and, collectively, the "Senior Executives"), has
entered into a letter agreement (each an "Employment Letter" and, collectively,
the "Employment Letters") with Parent concerning their respective employment
relationships following completion of the acquisition of the Company by Parent.
Copies of the forms of Employment Letters applicable to the Executives and of
Mr. Buterbaugh's Employment Letter are filed as Exhibits 7(a) and 7(b),
respectively, to this Statement. The Employment Letters with respect to the
Executives provide that the terms of such Employment Letters will apply, to the
extent that the terms and conditions thereof are not covered by the Change of
Control Agreements and upon expiration of those Agreements and Mr. Buterbaugh's
Employment Letter provides that its terms and conditions will apply commencing
upon completion of the acquisition of the Company by Parent.
Each of the Employment Letters provides for (i) an annual salary at a
stated rate, subject to annual review; (ii) participation in, and receipt of
bonuses through, Parent's Earnings Improvement Program, with 1998 bonuses at
least equal to the Senior Executive's bonus target award under the Company's
1997 Management Incentive Compensation Plan; (iii) the grant of options pursuant
to Parent's 1996 Performance Stock Option Plan; (iv) continued participation in
and receipt of benefits under existing welfare benefit plans (including medical,
prescription, dental, disability, life insurance and similar plans) or similar
plans of Parent which, in the aggregate will provide a similar quality of
benefits; (v) continued accrual of benefits under the Company's defined
contribution plans, SERP and BSSIP, as applicable; and (vi) continuation of
reasonable fringe benefits. In addition, each of the Employment Letters also
provides that upon any termination of the Senior Executive's employment by
Parent (not including death or disability) other than for Cause (as defined),
the Senior Executive is entitled to a severance payment equal to his monthly
base salary for up to 12 months from the date of separation or until he secures
other employment, whichever occurs first.
The Employment Letters also contain certain noncompetition and
nonsolicitation provisions applicable for a period of two years following the
date of termination of each Senior Executive's employment by the Parent for any
reason.
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Indemnification Arrangements
The Company is a Delaware corporation. The General Corporation Law of the
State of Delaware (the "DGCL") generally provides that a corporation may
indemnify an officer or director who was, is or is threatened to be made a party
to any threatened, pending or completed action by reason of the fact that he is
or was a director, officer or employee of the corporation against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The Certificate of Incorporation of the Company, provides that no person
shall be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except to the extent such
exemption from liability or limitation thereof is not permitted under Delaware
law. In addition, the Certificate provides that each person who was or is a
party or is threatened to be made a party to, or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative (a "Proceeding"), by reason of the
fact that such person is or was a director or officer of the Company, shall be
indemnified and held harmless by the Company to the fullest extent authorized by
the DGCL, including against all expenses incurred in connection with a
Proceeding in advance of its final disposition to the fullest extent permitted
by the DGCL.
The Company maintains a directors' and officers' liability insurance policy
to insure directors and officers against losses resulting from wrongful acts
committed by them in their capacities as officers and directors of the Company,
including liabilities arising under the Securities Act.
The Merger Agreement provides that all rights to indemnification and
exculpation from liabilities for acts or omissions occurring prior to the
Effective Time of the Merger currently existing in favor of the current or
former directors or officers of the Company and its subsidiaries, as provided in
their respective certificates of incorporation, by-laws, (or comparable
organizational documents) and indemnification agreements will survive the Merger
and continue in full force and effect for a period of not less than six years
from the Effective Time. The Merger Agreement also obligates the Parent to cause
to be maintained for a period of six years from the Effective Time the Company's
current directors' and officers' insurance and indemnification policy to the
extent that it provides coverage for events occurring prior to the Effective
Time ("D&O Insurance") for all persons who were directors and officers of the
Company on the date of the Merger Agreement, so long as the annual premium
therefor is not in excess of 200% of the last annual premium paid prior to the
date of the Merger Agreement (the "Maximum Premium"); provided, however, that in
lieu of maintaining such existing D&O Insurance, Parent may cause coverage to be
provided under any policy maintained for the benefit of Parent or any of its
subsidiaries or any policy specifically obtained for that purpose, so long as
the terms thereof are no less advantageous to the covered person than the
existing D&O Insurance. If the existing D&O Insurance expires, is terminated or
canceled, Parent is obligated to use all reasonable efforts to cause to be
obtained for the remainder of the six-year period following the Effective Time
of the Merger as much D&O Insurance as can be obtained for the remainder of the
period, on terms and conditions no less advantageous to the covered person than
the existing D&O Insurance.
(B)(2) CERTAIN ARRANGEMENTS BETWEEN AND AMONG PARENT, THE PURCHASER AND CERTAIN
DIRECTORS, EXECUTIVE OFFICERS AND AFFILIATES OF THE COMPANY.
On August 22, 1997, the Company, Parent and the Purchaser entered into the
Merger Agreement. Concurrently therewith, Parent, the Purchaser and each of
Anasco GmbH, and Messrs. Joseph Alibrandi, Buterbaugh, Winkler, Rohrer, Olsen,
and Staples entered into a Stockholders Agreement (described below). The
following summaries of agreements are qualified in their entirety by reference
to the full text of these agreements.
The Merger Agreement
The Offer. The Merger Agreement provides that the Purchaser will commence
the Offer and that, upon the terms and subject to the prior satisfaction or
waiver of the conditions of the Offer, the Purchaser will
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purchase all Shares validly tendered pursuant to the Offer. The Merger Agreement
provides that the Purchaser may, in its sole discretion waive, in whole or in
part, at any time or from time to time, any condition, increase the price per
Share payable in the Offer, or make any other changes in the terms and
conditions of the Offer, provided that the Purchaser has agreed that it will
not, without the written consent of the Company, (a) reduce the number of Shares
subject to the Offer, (b) reduce the Offer Price, (c) add to the conditions to
the Offer set forth in the Merger Agreement, (d) modify the form of
consideration payable in the Offer, (e) increase the Minimum Condition (which is
defined as that number of Shares which, together with the Option Shares, would
represent in excess of 50% of all outstanding Shares determined on a fully
diluted basis on the date of purchase), or (f) amend the conditions to the Offer
or any other term of the Offer in any manner materially adverse to the holders
of Shares. The Purchaser has reserved the right (but is not obligated to),
subject to the terms of the Merger Agreement and the applicable rules and
regulations of the Securities and Exchange Commission (the "Commission"), extend
the period of time during which the Offer is open, and thereby delay payment for
the Shares, and to amend the Offer. Purchaser, subject only to the conditions of
the Offer, shall accept for payment and pay for the Shares which have been
validly tendered and not withdrawn pursuant to the Offer as soon as it is
permitted to do so under applicable law. The Purchaser has the right to
terminate the Offer if, on or before October 31, 1997 and without fault of the
Purchaser, the conditions to the Offer have not been met.
The Merger. The Merger Agreement provides that following the satisfaction
or waiver of the conditions described below under "Conditions to the Merger",
and as promptly as practicable following consummation of the Offer, the
Purchaser will be merged with and into the Company, and each then outstanding
Share (other than Shares owned by the Company, any subsidiary of the Company,
Parent, the Purchaser, any other subsidiary of Parent or by stockholders, if
any, who are entitled to and who properly exercise appraisal rights under
Delaware law) will be converted into the right to receive an amount in cash
equal to the price per Share paid pursuant to the Offer.
The Company shall be the surviving entity in the Merger and the name of the
surviving company shall be "BioWhittaker Inc." The Certificate of Incorporation
and Bylaws of the Company shall remain those of the surviving company.
The Merger Agreement also provides that the directors of the Purchaser at
the effective time of the Merger (the "Effective Time") will be the directors of
the surviving corporation, and the officers of the Company at the Effective Time
will be the officers of the surviving corporation, until their respective
successors are duly elected or appointed and qualified.
The Merger Agreement provides that promptly upon the purchase by the
Purchaser of the Shares pursuant to the Offer and from time to time thereafter,
the Purchaser shall be entitled to designate up to the minimum number of
directors of the Company necessary in order for the result (expressed as a
fraction) derived by dividing the number of directors so designated by the total
number of directors to be at least equal to the result (expressed as a fraction)
derived by dividing the Shares then held by the Purchaser by the total number of
Shares then outstanding, provided, however, that until the consummation of the
Merger, the Board of Directors of the Company will have at least two Independent
Directors. Subject to applicable law, the Company has agreed to take all action
requested by Parent necessary to effect any such election, including mailing to
its stockholders the Information Statement containing the information required
by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder,
which Information Statement is attached as Annex A hereto. The term "Independent
Director" means a director of the Company who is (i) not designated by the
Purchaser nor otherwise affiliated with Parent or the Purchaser, (ii) not an
employee or the Chairman of the Company or any of its subsidiaries and (iii) is
not affiliated with Anasco.
Following the election or appointment of the Purchaser's designees to the
Board, any amendment to the Merger Agreement or the Certificate of Incorporation
or By-laws of the Company, any termination of the Merger Agreement by the
Company, and any extension of time for performance, or waiver of rights, under
the Merger Agreement will require the concurrence of a majority of Independent
Directors.
Company Stock Options. Immediately prior to the Effective Time, each then
outstanding option to purchase Shares (a "Company Stock Option"), whether or not
then vested and exercisable, shall be canceled
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in exchange for a right to receive payment within 15 days of an amount in cash
(less applicable withholding taxes) equal to the product of (i) the number of
Shares previously subject to such Company Stock Option multiplied by (ii) the
excess, if any, of the price per Share paid pursuant to the Offer over the
exercise price per Share of the Share previously subject to such Company Stock
Option.
Stockholder's Meeting. Pursuant to the Merger Agreement, the Company will,
if required by applicable law in order to consummate the Merger, as soon as
practicable following the consummation of the Offer, duly call, give notice of,
convene and hold a meeting of its stockholders (the "Meeting") for the purpose
of considering and taking action upon the Merger Agreement. The Proxy Statement
shall include the recommendation of the Board that stockholders of the Company
vote in favor of the approval and adoption of the Merger Agreement and the
transactions contemplated thereby (provided, however, that such recommendation
may be modified or withdrawn as provided in the Merger Agreement).
Conditions to the Merger. The Merger Agreement provides that the
obligations of Parent, the Purchaser and the Company to consummate the Merger
are subject to the satisfaction of certain conditions, including the following:
(a) the Purchaser shall have purchased all Shares duly tendered and not
withdrawn pursuant to the terms of the Offer and subject to the terms thereof;
provided that the obligation of the Parent and the Purchaser to effect the
Merger shall not be conditioned on the fulfillment of such condition if the
failure of the Purchaser to purchase the Shares pursuant to the Offer shall have
constituted a breach of the Offer or of the Merger Agreement; (b) the
consummation of the Merger shall not be precluded by any order, decree or
injunction of a court of competent jurisdiction (each party having agreed to use
its best efforts to have any such order reversed or injunction lifted), and
there shall not have been any action taken or any law enacted, promulgated or
deemed applicable to the Merger by any court, governmental agency or regulatory
or administrative authority, foreign or domestic (each, a "Governmental Entity")
that makes consummation of the Merger illegal; (c) if required by Certificate of
Incorporation and By-Laws of the Company and the DGCL, the Merger Agreement
shall have been approved and adopted by the affirmative vote of the holders of
the requisite number of Shares in accordance with the Certificate of
Incorporation and By-Laws of the Company and the DGCL; and (d) any applicable
waiting period under the HSR Act shall have expired or been terminated. The
Merger Agreement also provides that the obligations of Parent and the Purchaser
to consummate the Merger are subject to the following additional conditions: (a)
the Company shall have performed all of its material agreements and covenants
contained in the Merger Agreement required to be performed on or prior to the
Effective Time and the representations and warranties of the Company contained
in the Merger Agreement shall be true and correct in all material respects on
and as of (i) the date made and (ii) except in the case of representations and
warranties expressly made solely with reference to a particular date, the
effective time of the Merger and (b) the Company shall not have received notice
from the holder or holders of more than 10% of the outstanding Shares,
determined on a fully diluted basis, that such holder or holders have exercised
or intend to exercise its or their appraisal rights under Section 262 of the
DGCL.
As used herein, "Material Adverse Effect" means, with respect to any person
or entity, a material adverse effect on the business, assets, liabilities,
operations or condition (financial or otherwise) of such person or entity and
its subsidiaries, taken as a whole.
Termination of the Merger Agreement. The Merger Agreement may be
terminated at any time prior to the effective time of the Merger, whether prior
to or after approval of the terms of the Merger Agreement by the stockholders of
the Company:
(1) by the mutual written consent of Parent, the Purchaser and the
Company;
(2) by either the Parent or the Company if, on or before October 31,
1997 and without fault of such terminating party, Purchaser shall not have
purchased in the Offer such number of Shares which, together with the
number of Option Shares (as defined below) subject to the Stockholders
Agreement, represents in excess of 50% of the Shares on a fully diluted
basis, or the Merger shall not have been consummated on or before November
30, 1997, provided, however, that the right to terminate the Merger
Agreement is not available (i) to any party whose failure to fulfill any
obligation under the Merger Agreement has been the cause of, or resulted
in, the failure of the Offer or the Merger to have occurred on or before
the aforesaid date;
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(3) by either the Parent or the Company if the Offer shall expire or
terminate in accordance with its terms without any Shares having been
purchased thereunder and, in the case of termination by the Parent, the
Purchaser shall not have been required by the terms of the Offer or the
Merger Agreement to purchase any Shares pursuant to the Offer;
(4) by the Company if the Purchaser shall not timely commence the
Offer as provided in the Merger Agreement;
(5) if approval by the Company's stockholders is required by law, by
either the Purchaser or the Company if, upon a vote of the Company's
stockholders, such stockholder approval shall not have been obtained;
(6) unilaterally by the Purchaser or the Company (i) if the other
fails to perform any material covenant or agreement in any material respect
in the Merger Agreement, and does not cure the failure in all material
respects within 30 business days after the terminating party delivers
written notice of the alleged failure or (ii) if any condition to the
obligations of that party is not satisfied (other than by reason of a
breach by that party of its obligations hereunder), and it reasonably
appears that the condition cannot be satisfied prior to November 30, 1997;
(7) by either the Purchaser or the Company if either is prohibited by
an order or injunction (other than an order or injunction on a temporary or
preliminary basis) of a court of competent jurisdiction or other
Governmental Entity from consummating the Offer or the Merger and all means
of appeal and all appeals from such order or injunction have been finally
exhausted;
(8) by the Purchaser if the Board of Directors of the Company shall
have withdrawn or modified, or resolved to withdraw or modify, in any
manner which is adverse to Parent or the Purchaser, its recommendation or
approval of the Merger or the Merger Agreement; provided, however, that
such a termination shall not become effective if, as a result of the
Company's receipt of a proposal for an Acquisition Transaction (as defined
under "Takeover Proposals") from a third party, the Company, in accordance
with the Merger Agreement, withdraws or modifies, or resolves to withdraw
or modify, in any manner which is adverse to Parent or the Purchaser, its
recommendation or approval of the Merger or the Merger Agreement and if
within ten business days of taking and disclosing to its stockholders the
aforementioned position the Company publicly reconfirms its recommendation
of the transactions contemplated by the Merger Agreement; or
(9) by the Company if (i) the Board of Directors of the Company shall
have determined in good faith, based on the advice of outside counsel, that
it is necessary, in order to comply with its fiduciary duties to the
Company's stockholders under applicable law, to terminate the Merger
Agreement to enter into an agreement with respect to or to consummate a
transaction constituting a Superior Proposal (as defined under "Takeover
Proposals"), (ii) the Company shall have given notice to the Purchaser
advising the Purchaser that the Company has received a Superior Proposal
from a third party, specifying the material terms and conditions (including
the identity of the third party) and that the Company intends to terminate
the Merger Agreement, (iii) either (A) the Purchaser shall not have revised
its proposal for an Acquisition Transaction within two business days from
the time on which such notice is deemed to have been given to Parent, or
(B) if the Purchaser within such period shall have revised its proposal for
an Acquisition Transaction, the Board of Directors of the Company, after
receiving advice from the Company's financial advisor, shall have
determined in its good faith reasonable judgment that the third party's
proposal for an Acquisition Transaction is superior to Parent's revised
proposal for an Acquisition Transaction and (iv) the Company, at the time
of such termination, pays the Expenses and the Termination Fee (each as
defined under "Fees and Expenses" below).
Takeover Proposals. The Merger Agreement provides that the Company shall
not, shall not permit any of its subsidiaries to, and shall not authorize or
permit any officer, director or employee or any investment banker, attorney,
accountant or other advisor or representative of the Company or any of its
subsidiaries to, directly or indirectly, except as otherwise described in this
Section on "Takeover Proposals" (i) initiate, solicit, negotiate, encourage, or
provide confidential information to facilitate any proposal or offer to acquire
all
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or any substantial part of the business and properties of the Company and its
subsidiaries, taken as a whole, or beneficial ownership (as determined pursuant
to Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the capital
stock of the Company, whether by merger, purchase of assets, tender offer or
otherwise, whether for cash, securities or any other consideration or
combination thereof (such transactions being referred to herein as "Acquisition
Transactions"), (ii) enter into any agreement with respect to any Acquisition
Transaction or give any approval of the type referred to in the next paragraph
below with respect to any Acquisition Transaction or (iii) participate in any
discussions regarding, or take any other action to facilitate any inquiries or
the making of any proposal that constitutes or may reasonably be expected to
lead to any Acquisition Transaction. Notwithstanding the immediately preceding
sentence, the Company and its subsidiaries may, prior to the approval of the
Merger Agreement by the Company's stockholders, in response to any unsolicited
proposal for an Acquisition Transaction, furnish information concerning its
business, properties or assets to the corporation, partnership, person or other
entity or group (a "Potential Acquiror") making such proposal for an Acquisition
Transaction and participate in negotiations with the Potential Acquiror if (x)
the Company's Board of Directors after consultation with one or more of its
independent financial advisors, is of the reasonable belief that such Potential
Acquiror has the financial wherewithal to consummate such an Acquisition
Transaction, (y) the Company's Board of Directors reasonably determines, after
receiving advice from the Company's financial advisor, that such Potential
Acquiror has submitted a proposal for an Acquisition Transaction that involves
consideration to the Company's stockholders and other terms that taken as a
whole are superior to the Merger, and (z) based upon advice of counsel to such
effect, the Company's Board of Directors determines in good faith that it is
necessary to so furnish information and negotiate in order to comply with its
fiduciary duty to stockholders of the Company. The Merger Agreement provides
that in the event the Company shall determine to provide any information as
described above, or shall receive any offer of the type referred to in this
subsection or shall receive or become aware of any other proposal to acquire a
substantial part of the business and properties of the Company and its
subsidiaries, taken as a whole, or to acquire a substantial amount of capital
stock of the Company, it shall promptly inform Parent orally as to the fact that
information is to be provided and shall furnish to Parent the identity of the
recipient of such information and/or the proponent of such offer or proposal and
a description of the material terms thereof. The Company is also obligated to
keep Parent fully informed of the status and material details of any such
proposed Acquisition Transaction or other transaction (including any material
amendments or material proposed amendments of any such proposed Acquisition
Transaction or other transaction).
The Merger Agreement also provides that neither the Board of Directors of
the Company nor any committee thereof (x) shall withdraw or modify or propose to
withdraw or modify, in any manner adverse to Parent, the approval of
recommendation of such Board of Directors or such committee of the Merger or (y)
approve or recommend, or propose to approve or recommend, any proposal for an
Acquisition Transaction except, in each case, in connection with a Superior
Proposal. As used herein, the term "Superior Proposal" means a bona fide
proposal to acquire, directly or indirectly, for consideration consisting of
cash and/or securities, more than 50% of the Shares then outstanding or all or
substantially all the assets of the Company, provided (i) such proposed
transaction satisfies the tests set forth in clauses (x), (y) and (z) of the
second sentence of the immediately preceding paragraph and (ii) the Board of
Directors determines, in its good faith reasonable judgment, that such proposed
transaction is reasonably likely to be consummated without undue delay.
Fees and Expenses. The Merger Agreement provides that the Company will
pay, or cause to be paid, in same day funds to Parent the sum of (x) Parent's
Expenses (as defined below) and (y) $4,125,000 (the "Termination Fee") upon
demand if (i) the Company terminates the Merger Agreement in accordance with the
provision described in paragraph (9) under "Termination of Merger Agreement". In
addition, the Company will pay or cause to be paid in same day funds to Parent,
the sum of Parent's Expenses and the Termination Fee upon demand if (i) the
Purchaser terminates the Merger Agreement in accordance with the provisions
described in paragraphs (6) or (8) under "Termination of Merger Agreement" at
any time after a proposal for an Acquisition Transaction has been made, (ii) the
Company or the Purchaser terminates the Merger Agreement in accordance with the
provisions described in paragraphs (2), (3) or (5) under "Termination of Merger
Agreement" at any time after a proposal for an Acquisition Transaction has been
made, or (iii) the Purchaser terminates the Merger Agreement in accordance with
the provision described in
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paragraph (6)(ii) under "Termination of Merger Agreement" at any time after a
proposal for an Acquisition Transaction has been made and, within nine months
after any termination referred to in the immediately preceding clauses (i), (ii)
or (iii) of this sentence, the person that made the proposal for an Acquisition
Transaction (or an affiliate thereof) completes a merger, consolidation or other
business combination with the Company or a subsidiary of the Company, or the
purchase from the Company or from a subsidiary of the Company of 30% or more (in
voting power) of the voting securities of the Company or of 30% or more (in
market value) of the assets of the Company and its subsidiaries, on a
consolidated basis; provided that the Company will not have any such obligations
if the Purchaser terminates the Merger Agreement in accordance with the
provision described in paragraph (6)(ii) under "Termination of Merger Agreement"
as a result of the failure of a condition to be satisfied unless the reason for
the failure of such condition to be satisfied is reasonably related to the
making of such proposal for an Acquisition Transaction by the person that
ultimately consummated a transaction with the Company. "Expenses" shall mean
reasonable and reasonably documented out-of-pocket fees and expenses incurred or
paid by or on behalf of Parent in connection with the Offer and the Merger or
the consummation of any of the transactions contemplated by the Merger Agreement
(including, without limitation, the fees and expenses of one counsel
representing the financial institutions providing financing to the Purchaser and
all fees and expenses of Parent's investment banking firm), provided that all
such Expenses for this purpose shall not exceed $1.2 million in the aggregate.
Conduct of Business by the Company. The Merger Agreement provides that,
except as otherwise expressly contemplated by the Merger Agreement (including as
an exception on the disclosure schedule thereto) or to the extent that Purchaser
shall otherwise consent in writing, during the period from the date of the
Merger Agreement to the effective time of the Merger the Company shall not and
shall cause its subsidiaries not to: (a) declare, set aside or pay any dividends
on, or make any other distributions in respect of, any of its capital stock,
other than dividends and distributions by a direct or indirect wholly owned
subsidiary of the Company to its parent; (b) split, combine or reclassify any of
its capital stock or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital stock; (c)
purchase, redeem or otherwise acquire any shares of capital stock of the Company
or any of its subsidiaries or any other securities thereof or any rights,
warrants or options to acquire any such shares or other securities; (d) issue,
deliver, sell, pledge or otherwise encumber any shares of its capital stock, any
other voting securities or any securities convertible into, or any rights,
warrants or options to acquire, any such shares, voting securities or
convertible securities except upon exercise of any Option; (e) amend its
certificate of incorporation, by-laws or other comparable organizational
documents; (f) acquire or agree to acquire (x) by merging or consolidating with,
or by purchasing a substantial portion of the assets of, or by any other manner,
any business or any corporation, limited liability company, partnership, joint
venture, association or other business organization or division thereof or (y)
any assets that individually or in the aggregate are material to the Company and
its subsidiaries taken as a whole; (g) sell, lease, license, mortgage or
otherwise encumber or subject to any lien or otherwise dispose of any of its
properties or assets, other than in the ordinary course of business consistent
with past practice, that are material to the Company and its subsidiaries taken
as a whole; (h) incur any indebtedness, except for borrowings for working
capital purposes not in excess of $500,000 at any one time outstanding incurred
in the ordinary course of business consistent with past practice and except for
intercompany indebtedness between the Company and any of its wholly-owned
subsidiaries or between such wholly-owned subsidiaries, or make any loans,
advances or capital contributions to, or investments in, any other person, other
than to the Company or any direct or indirect wholly owned subsidiary of the
Company; (i) make or agree to make any new capital expenditure or capital
expenditures which in the aggregate are in excess of $250,000; (j) make any tax
election that could reasonably be expected to have a Material Adverse Effect on
the Company or settle or compromise any material income tax liability; (k)
except in the ordinary course of business or except as would not reasonably be
expected to have a Material Adverse Effect on the Company, modify, amend or
terminate any material contract or agreement to which the Company or any
subsidiary is a party or waive, release or assign any material rights or claims
thereunder; (l) make any material change to its accounting methods, principles
or practices, except as may be required by generally accepted accounting
principles; or (m) authorize, or commit or agree to take, any of the foregoing
actions.
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In addition to the foregoing, the Company has agreed that, except as
expressly contemplated or permitted by the Merger Agreement, it will not take
any action, or permit any of its subsidiaries to take any action, that would, or
that could reasonably be expected to, result in (a) any of the representations
and warranties of the Company set forth in the Merger Agreement that are
qualified as to materiality becoming untrue, (b) any of such representations and
warranties that are not so qualified becoming untrue in any material respect or
(c) any of the conditions to the Merger not being satisfied.
Reasonable Efforts. The Merger Agreement provides that, except as
otherwise contemplated therein, Parent, the Purchaser and the Company shall use
their reasonable best efforts to take promptly, or cause to be taken, all
actions and to do promptly, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by the
Merger Agreement, including using their reasonable best efforts (i) to obtain
all necessary waivers, consents and approvals, and (ii) to effect all necessary
registrations and filings, subject to approval by the Company's stockholders. In
case at any time after the effective time of the Merger any further action is
necessary or desirable to carry out the obligations of the parties under the
Merger Agreement, the proper officers and/or directors of Parent, the Purchaser
and the Company, as the case may be, shall take the necessary action.
Specifically, Parent, Purchaser and the Company have agreed to use their
reasonable best efforts to make promptly any required submissions under the HSR
Act with respect to the Merger and the transactions contemplated by the Merger
Agreement. The Company has agreed to use its reasonable best efforts to obtain
all consents, approvals, permits or authorizations as are required to be
obtained from other parties to loan agreements or other contracts material to
the Company's business in connection with the consummation of the Merger.
The Confidentiality Agreement
On March 20, 1997 Parent entered into a confidentiality agreement with the
Company pursuant to which, among other things, Parent agreed to treat as
confidential certain information provided by or on behalf of the Company, agreed
for a period of 18 months not to solicit for hire any present officer or
management level employee of the Company, and agreed that, for a period of two
years, without the prior written consent of the Company, Parent will not (i)
acquire, offer to acquire, or agree to acquire, directly or indirectly, by
purchase or otherwise, any voting securities or direct or indirect rights or
options to acquire any voting securities of the Company, (ii) make, or in any
way participate, directly or indirectly, in any "solicitation" of any "proxy" to
vote (as such terms are used in the proxy rules of the Securities and Exchange
Commission) or seek to advise or influence any person or entity with respect to
the voting of any voting securities of the Company, (iii) form, join or in any
way participate, directly or indirectly, in a "group" within the meaning of
Section 13(d)(3) of the Exchange Act with respect to any voting securities of
the Company, or (iv) otherwise act, alone or in concert with others, directly or
indirectly, to seek control or influence or assist others to seek control or
influence the management, board of directors, or policies of the Company.
The Stockholders Agreement
In connection with execution of the Merger Agreement, Parent and the
Purchaser have entered into two separate but substantially identical
Stockholders Agreements, each dated as of August 22, 1997 (collectively, the
"Stockholders Agreement"), with Anasco GmbH ("Anasco"), a principal stockholder
of the Company, and each of Joseph F. Alibrandi, Noel L. Buterbaugh, Thomas R.
Winkler, Philip L. Rohrer, Jr., Leif Olsen and F. Dudley Staples, Jr., each an
executive officer and/or director of the Company (with Anasco, the "Selling
Stockholders"). A copy of the form of Stockholders Agreement with the executive
officers and directors is filed as Exhibit 8(a) to this Statement and of the
form of Stockholders Agreement with Anasco is filed as Exhibit 8(b) to this
Statement and are incorporated herein by reference.
Pursuant to the terms and conditions of the Stockholders Agreement, each
Selling Stockholder has agreed to tender his Shares in the Offer. In the
Stockholders Agreement, each Selling Stockholder has further agreed that, until
the Termination Date (as defined below), such Selling Stockholder has granted to
Purchase an irrevocable proxy to, and will vote his Shares (i) in favor of the
Merger, the execution and delivery by the
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Company 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 Company
under the Merger Agreement, the Offer or the Stockholders 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 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 the
Stockholders Agreement or the contemplated economic benefits of any of the
foregoing.
In addition, subject to his obligations as a director or officer of the
Company and further subject to such restrictions as exist under the Merger
Agreement, each Selling Stockholder has agreed that he 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 (as defined in the
Merger Agreement). If any Selling Stockholder receives any such inquiry or
proposal, then such Selling 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. The Selling Stockholders have also agreed to
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.
Each Selling Stockholder has agreed not to transfer or otherwise dispose of
its or or his Shares other than through the Offer or Merger, or otherwise grant
any proxies with respect to, or otherwise encumber its or his Shares.
Under the Stockholders Agreement, each Selling Stockholder has also granted
the Purchaser an irrevocable option to purchase all of such Selling
Stockholder's Shares, including all Shares subject to all Stock Options owned by
such Selling Stockholder, in each case at the Offer Price per Share. In the case
of all Shares underlying all such Stock Options (the "Option Shares"), such
option may be exercised by the Purchaser at any time following its purchase of
any Shares pursuant to the Offer and prior to the Termination Date. Among other
things, this option may facilitate the Purchaser's ability to acquire 50% of the
outstanding Shares. In the case of all other Shares held by the Selling
Stockholders, such option may be exercisable by the Purchaser at any time, and
from time to time, following any time when the Merger Agreement has been
terminated in accordance with its terms and prior to the Termination Date. Among
other things, such option will enable the Purchaser to acquire, and then sell,
all of such Shares to any person who has made and consummates a Superior
Proposal.
For purposes of the Stockholders Agreement, the term "Termination Date"
means the earlier of (a) twelve months from the date of the Stockholders
Agreement and (b) the consummation of the Merger, provided, however, that if the
Company is not in breach of its obligations under the Merger Agreement and none
of the Selling Stockholders are in breach of their obligations under the
Stockholders Agreement, the Termination Date shall be the date that: (i) the
Merger Agreement shall have terminated in accordance with the provisions
described in paragraphs (1), (4), (6)(i) or (7) under "Termination of the Merger
Agreement" above, (ii) the Merger Agreement shall have terminated in accordance
with the provisions described in paragraphs (2), (3) or (5) under "Termination
of the Merger Agreement" above and no proposal for an Acquisition Transaction
has been made, (iii) the Merger Agreement shall have terminated in accordance
with the provisions described in paragraph (6)(ii) under "Termination of the
Merger Agreement" above unless a
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proposal for an Acquisition Transaction has been made. The Stockholders
Agreement shall terminate on the Termination Date.
* * * * * *
The foregoing descriptions are qualified in their respective entireties by
reference to the texts of the relevant agreements, plans, amendments and other
documents, copies of which are filed as Exhibits 4 through 8(b) to this
Statement and are incorporated herein by reference.
ITEM 4. THE SOLICITATION AND RECOMMENDATION.
(a) RECOMMENDATION.
At a meeting held on August 21, 1997, the Board of Directors of the Company
unanimously approved the Offer and the Merger, determining that each of the
Offer and the Merger (including the offer price of $11.625 per Share in cash) is
fair to and in the best interests of stockholders of the Company. At such
meeting, the Board also unanimously adopted a resolution to recommend to the
stockholders of the Company that they accept the Offer. In addition, the Board
unanimously approved the form of Merger Agreement. Copies of a press release and
a letter from the Board to the Company's stockholders concerning the Offer, the
Merger Agreement and the Board's recommendations are filed as Exhibits 13 and
12, respectively, to this Statement and are incorporated herein by reference.
As set forth in the Merger Agreement, the Purchaser will purchase Shares
tendered prior to the close of the Offer if the conditions to the Offer have
been satisfied (or waived).
STOCKHOLDERS CONSIDERING NOT TENDERING THEIR SHARES IN ORDER TO WAIT FOR
THE MERGER SHOULD NOTE THAT IF THE MINIMUM CONDITION IS NOT SATISFIED OR ANY OF
THE OTHER CONDITIONS TO THE OFFER ARE NOT SATISFIED, THE PURCHASER IS NOT
OBLIGATED TO PURCHASE ANY SHARES, AND CAN TERMINATE THE OFFER AND THE MERGER
AGREEMENT AND NOT PROCEED WITH THE MERGER.
Under Delaware Law, the approval of the Board and the affirmative vote of
the holders of a majority of the outstanding Shares (unless at least 90% of the
outstanding Shares are held by the Purchaser) are required to approve the
Merger. Accordingly, if the conditions to the Offer are satisfied, the Purchaser
will have sufficient voting power to cause the approval of the Merger without
the affirmative vote of any other stockholder. Under Delaware Law, if Purchaser
acquires, pursuant to the Offer or otherwise, at least 90% of the then
outstanding Shares, Purchaser will be able to approve and adopt the Merger
Agreement and the Merger, without a vote of the Company's stockholders. Parent,
Purchaser and the Company have agreed to use their reasonable best efforts to
take promptly, or cause to be taken, all actions and to do promptly, or cause to
be done, all things necessary, proper or advisable to consummate and make
effective the Offer, the Merger and the other transactions contemplated by the
Merger Agreement, including effecting the Merger as promptly as practicable
following consummation of the Offer. If Purchaser does not acquire at least 90%
of the then outstanding Shares pursuant to the Offer or otherwise and a vote of
the Company's stockholders is required under Delaware Law, a longer period of
time will be required to effect the Merger.
The Offer is scheduled to expire at 12:00 midnight, New York City time, on
Thursday, September 25, 1997, unless the Purchaser extends the period of time
for which the Offer is open. A copy of the press release issued jointly by the
Company and Parent on August 25, 1997 announcing the Merger and the Offer is
filed as Exhibit 13 to this Schedule 14D-9 and is incorporated herein by
reference in its entirety.
(b) BACKGROUND AND REASONS FOR THE RECOMMENDATION.
BACKGROUND OF THE OFFER
In the fall of 1996, management began its annual review of its business
plans for the Company's short-term and long-term growth and, at the urging of
certain large stockholders of the Company, began a review
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with the Board of Directors of the Company of strategies for enhancing
shareholder value. The Board determined to seek the advice of investment bankers
and, on the recommendation of the current Chief Executive Officer, also
discussed the possibility of initiating a search for a new Chief Executive
Officer as part of a succession plan for senior management.
In November 1996, after interviewing several investment banking firms of
national reputation, the Company announced that it had retained Alex. Brown &
Sons Incorporated ("Alex. Brown") to assist the Company in exploring strategic
alternatives to best position the Company for growth in its business and
concentrating on methods and strategies for enhancing shareholder value,
including possible acquisitions and/or strategic business combinations. The
Company's management and representatives of Alex. Brown began an evaluation of
available alternatives, including possible business combinations, strategic
acquisitions or a stock split or repurchase of the Company's Common Stock. At a
meeting on December 6, 1996, management reported to the Board on the progress of
that work to date. Management also informed the board that, in accordance with
the Company's request, Alex. Brown had been responding on the Company's behalf
to inquiries which the Company had received as a result of its public
announcement as to its evaluation of strategic alternatives to determine the
level of interest of such parties in a possible transaction with the Company.
In November 1996, the Company also retained Korn/Ferry International, a
nationally recognized executive search firm, to identify candidates to serve as
Chief Executive Officer. Following a national search, the Board interviewed a
number of potential candidates during the winter and spring of 1997. As a result
of developments described below, the Board suspended its search in May 1997.
On February 17, 1997, the Board further reviewed with management and Alex.
Brown the strategic alternatives available to the Company, including possible
strategic acquisitions. Management subsequently reviewed the potential
acquisitions and concluded as to each that it was not compatible with the
Company's business strategy. The Board also received an update as to the results
of discussions with those parties that had approached the Company subsequent to
its November 1996 press release. The Board determined that sufficient interest
had been expressed to warrant further consideration and authorized Alex. Brown
to pursue its discussions with those parties that had expressed an interest in
the Company, and to contact a limited number of additional potential buyers for
the Company that had been selected by management from a list of potential
candidates prepared by management and Alex. Brown, so that the Board could
determine whether to consider the alternative of an acquisition of the Company
by a third party. A confidential information package on the Company also had
been prepared for submission to interested parties.
Over the course of the spring, 42 prospective strategic and financial
buyers for the Company were contacted to determine their level of interest. Of
the parties contacted, 32 parties, including Parent, executed confidentiality
and standstill agreements with the Company and received a confidential
information package on the Company. A copy of the confidentiality and standstill
agreement executed by Parent on March 20, 1997 is included as Exhibit 16 hereto
and is incorporated herein by reference. Each company that signed the
confidentiality agreement and received a confidential information package on the
Company was asked to indicate its level of interest by mid-May 1997.
In May 1997, representatives of Boehringer Ingelheim GmbH ("Boehringer
Ingelheim") informed the Company's Chief Executive Officer that preliminary
consideration was being given by Boehringer Ingelheim to the possible sale of a
European company (the "BI Joint Venture"), in which the Company previously owned
a 50% interest. Boehringer Ingelheim currently owns 100% of the BI Joint
Venture, but the Company has the right to reacquire its 50% interest at such
time as the BI Joint Venture becomes profitable, subject to certain terms and
conditions, including Boehringer Ingelheim's right to terminate the option
following a change of control of the Company. The BI Joint Venture manufactures
products under license from the Company and distributes other Company products
in Europe and certain other regions. On May 16, 1997, Anasco GmbH ("Anasco"), an
affiliate of Boehringer Ingelheim that owns 2,097,043 Shares, filed an amendment
to its Schedule 13D stating that, in connection with the Company's announcement
regarding its review of strategic alternatives and with a pending reassessment
of the bioproducts and biosystems businesses of companies within the Boehringer
Ingelheim group, initial steps had been taken by Boehringer Ingelheim to
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determine whether there might be prospective purchasers of all or a portion of
various assets related to the group's bioproducts and biosystems businesses.
These assets include the BI Joint Venture and Anasco's holdings of Shares.
On April 17, 1997, Parent provided to Alex. Brown in writing a non-binding
indication of interest in the range of $100 to 120 million (or $9.00 to $11.25
per Share) to purchase the Company subject, among other things, to negotiation
of definitive agreements relating to the proposed transaction and satisfactory
completion of due diligence. Thereafter, representatives of Parent visited the
Company's offices on May 19, 1997, and received a presentation from the
Company's senior management.
At a meeting on May 23, 1997, Alex. Brown updated the Board of Directors as
to the responses that had been obtained from interested parties, including
preliminary, non-binding indications of interest from four companies which had
stated that they would be interested in exploring a possible acquisition of the
Company, at prices ranging from $8.00 to $12.00 per share, including Parent's
preliminary indication of interest. The Board also further reviewed with
management and Alex. Brown other alternatives available for enhancing
shareholder value, including strategies for growth on an independent basis.
After further discussion, the Board concluded that there was sufficient interest
to continue to pursue discussions with potential acquirors and authorized Alex.
Brown to pursue discussions with any other companies considered to be likely
potential acquirors.
On May 27, 1997, the Company announced in a press release that there was
sufficient interest to warrant further discussions concerning the possible sale
of the Company, but that discussions were at a preliminary stage and that it was
not possible to predict whether a sale would result from these discussions.
During May and June, 1997, the four parties, including Parent, that had
submitted indications of interest were invited to visit the Company to receive a
presentation by senior management and to conduct a due diligence review of the
Company. Of the three parties other than Parent that submitted indications of
interest, two parties subsequently withdrew from the process and one party
indicated that any offer would likely be at the lower end of its indicated
range.
On June 10, 1997, the Company's Chief Executive Officer met informally with
the Chairman of the Board and the Chief Executive Officer of Parent and
discussed whether the two companies were strategically compatible. On June 12
and June 24, 1997, representatives of Parent visited the Company's headquarters
to conduct further due diligence.
On June 27, 1997, an additional candidate, Party A, contacted Alex. Brown
and indicated its interest in acquiring the Company. Party A subsequently
executed a confidentiality and standstill agreement with the Company and
received a confidential information package on the Company.
On July 1, 1997, Parent made an offer to acquire the Company for $120
million subject, among other things, to negotiation and execution of definitive
agreements relating to the proposed acquisition, and requested that the Company
enter into an exclusive negotiating period through August 31, 1997. The Company
declined to grant Parent's request for exclusivity but continued discussions
with Parent during the early part of July.
On July 11, 1997, the Company's Chief Executive Officer and a
representative of Alex. Brown met with the President and other members of senior
management of Parent and representatives of Schroder & Co. Inc. ("Schroders"),
Parent's investment banking firm. As a result of those negotiations, Parent
notified the Company that it was prepared to negotiate to acquire the Company at
a price of $11.625 per share subject to completing due diligence, negotiating
the terms of an acceptable agreement and satisfactory discussions with certain
key executives of the Company concerning their role with the Company following
any such acquisition.
On July 18, 1997, Party A submitted a preliminary, non-binding indication
of interest of $10.00 to $12.00 per Share.
On July 22, 1997, the Company received from Parent's counsel an initial
draft of a merger agreement, which contemplated, among other things, the receipt
of stockholder agreements from Anasco and certain
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directors and officers of the Company. Counsel for the companies then negotiated
provisions of the agreement of merger and related documents.
On July 24, 1997, the Chief Executive Officer and Chief Financial Officer
of the Company attended a portion of a meeting of the Board of Directors of
Parent and answered questions from the Board concerning the Company.
On July 25, 1997, a representative of Boehringer Ingelheim wrote a letter
to Parent stating that Boehringer Ingelheim would not be able to respond
immediately to Parent's request for a stockholder agreement binding on Anasco
until after it had reviewed the implications of such an agreement with its legal
and financial advisors. The letter stated that Boehringer Ingelheim also was
considering the suitability of Parent as a partner in light of the commercial
arrangements between the Company and the BI Joint Venture and Parent's future
intentions in this regard. Counsel for the Company and for Parent continued to
negotiate provisions of the merger agreement, including the conditions for
termination by Parent, the effect of termination, of the merger agreement
including the size of any termination fee and the payment of Parent's expenses,
and the circumstances under which the Company's Board could entertain
alternative acquisition proposals. During the course of these negotiations,
Parent converted the structure of the transaction to a tender offer, followed by
a merger, and provided a new draft of the agreement for the Board and its
counsel to consider.
On July 29-30, 1997, Party A visited the Company, received a presentation
by senior management and performed a due diligence review of the Company.
On July 30, 1997, the Company's Board met to consider Parent's proposal.
Counsel for the Company reviewed with the Board the proposed form of the
transaction as a tender offer/merger and various terms of the agreement,
including the price, the absence of a financing contingency, the tax treatment
of the transaction, the proposed terms of stockholder agreements, the terms of a
proposed termination fee of 3% of the acquisition consideration (which had been
reduced through negotiations) and unlimited reimbursement of Parent's expenses
in the event of termination, the treatment of certain employee benefit plans
including the cashing out of stock options, the conditions of termination of the
merger and of the tender offer and the circumstances under which the Board could
entertain an alternative proposal. Alex. Brown also reviewed with the Board the
process that had been undertaken on behalf of the Company to identify potential
acquirors (including the number of parties contacted, the number of
confidentiality agreements received, the number of parties that had submitted
indications of interest and the reasons for parties' declining to proceed), an
overview of Parent, the historical performance over specified periods of the
Company's stock, and the valuation methodologies to be utilized by Alex. Brown
in connection with its financial analysis of the proposed transaction. Alex.
Brown also reviewed with the Board certain data relating to the range of
termination fees for deals of similar size.
The Board then considered the proposal in light of its strategic
alternatives, and in light of the Board's discussions over the past year. The
Board discussed whether, in light of the indication of interest of Party A, the
Company should delay completing a transaction with Parent. Following further
discussion, and particularly given the uncertainty of receiving an offer from
Party A and the concern that Parent would withdraw its offer if the Company were
to delay its discussions with Parent, the Board determined to proceed with a
possible transaction with Parent, subject to the resolution of certain issues.
The Board directed counsel and Alex. Brown to present to Parent its position on
certain issues, including a request for a lower termination fee, a cap on
expenses, the treatment of certain employee benefit plans, including
confirmation of Parent's 3 assumption of existing change of control agreements,
the conditions to consummation of the tender offer and the merger, the scope of
the proposed stockholder agreements, the duration of certain non-compete
agreements to be signed by management and the circumstances under which the
Board could consider an alternative proposal.
Following the July 30, 1997 meeting, the Company's legal and financial
advisors presented the open issues to representatives of Parent. Following
discussions, the Executive Vice President of Parent telephoned the Chief
Executive Officer of the Company to state that Parent was unwilling to accede to
these requests and that Parent was deferring further negotiations. Counsel for
the Company sent a revised draft of the agreement to counsel for Parent that
evening, reflecting among other things, the Board's position on these issues.
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Thereafter, at the request of the Board, Alex. Brown further discussed
certain of the open issues with Parent's investment bankers, who stated that
Parent would not pursue the transaction without stockholder agreements from
Anasco and certain officers and directors in order to assure these parties'
support of the transaction, and again contacted Party A, which, on August 1,
1997 stated that it was not inclined to make an offer for the Company and was
terminating further discussions.
During the next week, the Company and its representatives pursued
discussions with representatives of Boehringer Ingelheim regarding its possible
willingness to negotiate a stockholder's agreement binding on Anasco and the
terms and conditions under which it might be willing to cause Anasco to sign
such an agreement. Boehringer Ingelheim sought a revision of the proposed terms,
including of the proposed triggering events, the conditions of termination of
the agreement and that Parent not be the beneficiary under the stockholder
agreement of the spread between a superior proposal and Parent's proposed
purchase price in the event a transaction involving a superior proposal were
consummated. The stockholder agreement also required Anasco to irrevocably
tender its shares in the tender offer and to grant Parent an irrevocable option,
for up to one year, to purchase Anasco's shares in the event the tender offer
were not consummated and the merger agreement were terminated. Following further
negotiations with representatives of Parent and of the Company, Boehringer
Ingelheim agreed to participate in additional discussions to reach agreement
regarding a proposed stockholder's agreement under partially revised terms and
conditions and the senior members of the Company's management and the Company's
Chairman of the Board agreed to participate in similar discussions.
Thereafter, the parties, and their respective legal and financial advisors,
resumed their negotiations regarding the remaining terms of the merger
agreement. In a conference call on August 11, 1997, Schroders and counsel for
Parent informed the Company's legal and financial advisors that Parent would be
willing to modify its position with respect to certain of the open issues, but
would not go forward without a stockholder agreement from Anasco on the terms
previously proposed by Parent. Over the next several days, representatives of
Parent and the Company held a number of discussions with members of Boehringer
Ingelheim concerning the terms of the stockholder agreement, including the
proposed trigger events and who would receive the spread between a superior
proposal and Parent's proposed purchase price for the Shares in the event its
superior transaction was consummated by a third party.
During the course of discussions with Boehringer Ingelheim concerning the
stockholder agreement, Parent, the Company and their advisors continued
negotiation of the terms of the merger agreement. On August 14, 1997, Boehringer
Ingelheim indicated its tentative agreement to the terms of the stockholder
agreement proposed by Parent and authorized its counsel to finalize the
definitive agreement with counsel for Parent.
At a meeting on August 18, 1997, the Board received an update on the status
of all remaining issues, and was informed of Boehringer Ingelheim's position as
to the stockholder's agreement, that Party A had declined to bid on the Company,
and that no alternative potential acquirors for the Company had come forward. At
that meeting, the Company's Chief Financial Officer also advised the Board
concerning the Company's results of operations for the nine months ended July
31, 1997.
Over the next few days, counsel for the parties continued negotiations on
the merger agreement and related documents. On August 21, 1997, the Board of the
Company met to review the latest draft of the agreements. Counsel presented an
update on the status of all open issues and expressed the view that these issues
appeared likely to be resolved in favor of the Company, although further final
negotiations were on-going. Alex. Brown provided the Board with its financial
presentation with respect to the proposed transaction, and informed the Board
that, subject to review of the final form of the agreements to be entered into
in connection with the transaction and certain other customary matters, Alex.
Brown would be in a position to render to the Board, at the time of execution of
the agreements, a written opinion to the effect that, as of the date of such
opinion and based upon and subject to certain matters stated therein, the
$11.625 per Share cash consideration to be received by the holders of Shares
(other than Parent and its affiliates) in the tender offer and merger was fair,
from a financial point of view, to such holders. Alex. Brown also reviewed with
the Board certain data relating to the range of termination fees for deals of
similar size and stated its view that it was not
15
<PAGE> 17
unreasonable for an acquiror to request that certain expenses be reimbursed in
the event of termination, as contemplated by the proposed merger agreement.
Following further discussions, the Board unanimously determined that the
Offer and Merger on substantially the terms presented at the meeting were fair
to and in the best interests of the Company and its stockholders. The Board also
approved the merger agreement in substantially the form presented to the Board
of Directors, including such changes as were discussed by counsel at the meeting
and were still subject to negotiations and subject to such further changes as
deemed necessary or desirable by certain officers, with the advice of counsel,
and further subject to the receipt of a fairness opinion of Alex. Brown, the
substance of which (including matters considered, assumptions made and
limitations thereon) was reviewed with the Board at the meeting. The Board
determined to recommend acceptance of the Offer and approval and adoption of the
final merger agreement by the stockholders of the Company (to the extent that
such approval and adoption may be required by applicable law) and the Board
authorized management to finalize the agreements.
In connection with these approvals, the Board also waived, on behalf of the
Company, for the sole and limited purpose and duration of the proposed
stockholder's agreement between Anasco and Parent, certain rights pursuant to a
Stock Purchase Agreement dated as of September 24, 1991, between the Company and
Anasco (the "Stock Purchase Agreement"), including a right of refusal granted to
the Company to purchase certain shares of Common Stock from Anasco, and certain
prohibitions 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,
provided however, that these terms would continue in effect as if no waiver had
occurred upon expiration of the term of the stockholders agreement in the event
Anasco's shares are not purchased by Parent.
In addition, for the purpose of ensuring that the proposed transactions
would not have the effect of triggering the exercisability of the Rights (as
defined) or the separation of the Rights from the shares to which they are
attached, or cause the Distribution Date (as defined) to occur, all pursuant to
the Stockholder Rights Protection Agreement dated as of January 20, 1995 (the
"Rights Plan"), the Board approved an amendment to the Rights Plan, and the
Rights Plan subsequently was amended in accordance with the Board's resolution.
The Board also approved the Merger Agreement and each of the stockholders'
agreements to be executed in connection with the proposed acquisition, for the
purpose of exempting Parent and its acquiring subsidiary from the provisions of
Section 203 of the Delaware General Corporation Law.
On August 22, 1997, after the close of business, the parties resolved all
outstanding issues, received the opinion of Alex. Brown described above in
writing, and the parties executed and delivered the Merger Agreement, the
stockholder agreements and the other related agreements. On August 25, 1997, the
parties publicly announced that they had entered into the Agreement and Plan of
Merger.
In deciding to accept Parent's proposal, approve the Merger Agreement and
recommend acceptance of the Offer and approval of the Merger Agreement to the
stockholders, the Board considered a number of factors, including, without
limitation, the following:
(i) Historical information concerning the Company's business,
prospects, financial performance and condition, operations, technology,
management and competitive position; the projects relating to, and
prospects of, going forward as an independent company; various factors
affecting the Company's strategic plans, the Company's position in its
industry and industry conditions generally;
(ii) The possible alternatives to the Offer and the Merger (including
the possibility of continuing to operate the Company as an independent
entity), the range of possible benefits to the Company's stockholders of
such alternatives and the timing and the likelihood of actually
accomplishing any of such alternatives;
(iii) The circumstances giving rise to the Offer and the Agreement and
Plan of Merger, the historical price range of the Shares and the
price-earnings multiple represented by the Offer as compared to historical
ratios, the premium presented by the price to be paid in the Offer for the
Shares over the historical price range of the Shares, and prices paid in
recent acquisitions of similar companies;
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<PAGE> 18
(iv) The price provided by the Parent proposal, which was the highest
then available, following a comprehensive search for potential bidders and
two public announcements relating to the Company's intentions;
(v) The terms of the Merger Agreement, including the form of the
transaction, the parties' representations, warranties and covenants, and
the conditions to their respective obligations, including the fact that,
pursuant to the Merger Agreement, the Company is not prohibited from
responding to any unsolicited proposal for an Acquisition Transaction (as
defined in the Merger Agreement) involving superior terms to acquire the
Company, and that the Company may terminate the Merger Agreement and accept
such superior proposal subject to the Company's obligation to pay a
termination fee in the amount and in the manner described in the Merger
Agreement;
(vi) The desirability of cash consideration relative to stock
consideration because of the investment considerations affecting a stock
transaction and Parent's ability to effect a cash transaction without any
financing contingency;
(vii) The potential for other third parties to acquire the Company;
(viii) The availability of appraisal rights in the Merger under
applicable law;
(ix) The opinion of Alex. Brown dated August 22, 1997 to the effect
that, as of such date and based upon and subject to certain matters stated
in such opinion, the $11.625 per Share cash consideration to be received by
holders of Shares (other than Parent and its affiliates) in the Offer and
the Merger was fair, from a financial point of view, to such holders. The
full text of Alex. Brown's written opinion dated August 22, 1997, which
sets forth the assumptions made, matters considered and limitations on the
review undertaken by Alex. Brown, is attached hereto as Annex B and is
incorporated herein by reference. Alex. Brown's opinion is directed only to
the fairness, from a financial point of view, of the cash consideration to
be received in the Offer and the Merger by holders of Shares (other than
Parent and its affiliates) and is not intended to constitute, and does not
constitute, a recommendation as to whether any stockholder should tender
Shares pursuant to the Offer. HOLDERS OF SHARES ARE URGED TO READ SUCH
OPINION CAREFULLY IN ITS ENTIRETY.
The Board did not assign relative weights to the above factors. Rather, the
Board viewed its position and recommendations as being based on the totality of
the information presented to and considered by it during the process followed by
the Board.
ITEM 5. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The Company has retained Alex. Brown as its financial advisor in connection
with the Offer and the Merger. Pursuant to the terms of Alex. Brown's
engagement, the Company has agreed to pay Alex. Brown for its services an
aggregate financial advisory fee based on a percentage of the total
consideration (including liabilities assumed) payable in connection with the
Offer and the Merger. The fee payable to Alex. Brown currently is estimated to
be approximately $1.5 million. The Company also has agreed to reimburse Alex.
Brown for reasonable out-of-pocket expenses, including reasonable legal fees and
expenses, and to indemnify Alex. Brown and certain related parties against
certain liabilities, including liabilities under the federal securities laws,
arising out of Alex. Brown's engagement. In the ordinary course of its business,
Alex. Brown and its affiliates may actively trade or hold the securities of the
Company and Parent for their own account or for the accounts of customers and,
accordingly, may at any time hold a long or a short position in such securities.
Except as described herein, neither the Company nor any person acting on
its behalf currently intends to employ, retain or compensate any other person to
make solicitations or recommendations to security holders on its behalf
concerning the Offer.
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<PAGE> 19
ITEM 6. RECENT TRANSACTIONS AND INTENT WITH RESPECT TO SECURITIES
(a) Except as set forth in Items 3 and 4 herein, or pursuant to the
Company's Savings and Stock Investment Plan, no transactions in Shares have been
effected during the past 60 days by the Company or, to the best knowledge of the
Company, by any of its executive officers, directors or affiliates.
(b) To the best knowledge of the Company, (i) each of its executive
officers and directors and Anasco, who currently own in the aggregate
approximately 31% of the Shares outstanding, on a fully diluted basis, presently
intend to tender their Shares pursuant to the Offer and (ii) none of its
executive officers, directors or other affiliates presently intends otherwise to
sell any Shares which are owned beneficially or held of record thereby. The
foregoing does not include any Shares over which, or with respect to which, any
such executive officer, director or affiliate acts in a fiduciary or
representative capacity or as to which any such executive officer, director or
affiliate is subject to instructions from a third party with respect to such
tender.
ITEM 7. CERTAIN NEGOTIATIONS AND TRANSACTIONS BY THE SUBJECT COMPANY.
(a) Except as described in Item 3(b) and Item 4(b), the Company has not
undertaken, and there is not underway any response to the Offer which relates to
or would result in (1) an extraordinary transaction such as a merger or
reorganization, involving the Company or any subsidiary of the Company; (2) a
purchase, sale or transfer of a material amount of assets by the Company or any
subsidiary of the Company; (3) a tender offer for or other acquisition of
securities by or of the Company; or (4) any material change in the present
capitalization of dividend policy of the Company.
(b) Except as described in Item 3 and Item 4, there are no transactions,
board resolutions, agreements in principle or signed contracts in response to
the Offer which relate to or would result in one or more of the matters referred
to in clause (1), (2), (3) or (4) of Item 7(a).
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
(I) STOCKHOLDER PROTECTION RIGHTS AGREEMENT
The Company has in place a stockholder rights plan. Each share of Common
Stock is accompanied by one Right which entitles the registered holder to
purchase from the Company a unit consisting of one one-hundredth of a share (a
"Unit") of Series A Participating Cumulative Preferred Stock, par value $0.01
per share (the "Series A Preferred Stock"), at a purchase price of $24.00 per
Unit (the "Purchase Price"), subject to adjustment. The terms of the Rights are
set forth in the Stockholder Protection Rights Agreement dated as of January 20,
1995, as amended, between the Company and Bank of Boston, as Rights Agent (the
"Rights Agreement"), the forms of which are filed as Exhibits 10 and 11 to this
Statement and incorporated herein by reference.
Prior to the Rights Distribution Date (as defined), the Rights will not be
exercisable and will be evidenced by the certificates for, and will trade with,
the Common Stock. As soon as practicable after the earlier of (i) the tenth day
(or such later day as may be designated by a majority of the Continuing
Directors (as defined below)) after the date (the "Stock Acquisition Date") of
the first public announcement that a person or group of affiliated or associated
persons (an "Acquiring Person") has acquired beneficial ownership of 30% more
(the "Specified Percentage") of the outstanding shares of Common Stock and (ii)
the tenth business day (or such later day as may be designated by a majority of
the Continuing Directors) after the date of the commencement of a tender or
exchange offer by any person (other than the Company, any of its subsidiaries or
any employee benefit plan of the Company or any of its subsidiaries) if, upon
consummation thereof, such person would be the beneficial owner of the Specified
Percentage or more of the outstanding shares of Common Stock (the earlier of
such dates being referred to as the "Rights Distribution Date"), the Company
will issue separate certificates evidencing the Rights and the Rights will begin
to trade separately from the Common Stock. The Rights are not exercisable until
the Rights Distribution Date and will expire at the close of business on January
30, 2002 (the "Rights Expiration Date"), unless previously redeemed or exchanged
by the Company as described below.
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<PAGE> 20
If a person becomes the beneficial owner of the Specified Percentage or
more of the outstanding shares of Common Stock, each holder of a Right (other
than Rights that are, or under certain circumstances specified in the Rights
Agreement were, beneficially owned by an Acquiring Person (which will thereafter
be void)) will thereafter have the right to receive upon exercise thereof at the
then current purchase price (the "Purchase Price"), Common Stock having a market
value equal to two times the Purchase Price. At any time after any person has
become an Acquiring Person (but before such person becomes the beneficial owner
of 50% or more of the outstanding shares of Common Stock), the Board of
Directors of the Company may, at its option, exchange all or part of the Rights
(other than the Rights owned by an Acquiring Person) for shares of Common Stock
at an exchange ratio of one share of Common Stock per Right.
If, at any time following the Stock Acquisition Date, (i) the Company is
acquired in a merger or other business combination transaction in which the
Company is not the surviving corporation or the Common Stock is exchanged for
other securities or assets or (ii) 50% or more of the Company's assets or
earning power is sold, each holder of a Right will thereafter have the right to
receive, upon exercise thereof at the then current Purchase Price, common stock
of the acquiring company having a market value equal to two times the Purchase
Price.
The Rights may, at the option of the Board of Directors, be redeemed in
whole, but not in part, at a price of $0.01 per Right at any time prior to the
earlier of the tenth day after the Stock Acquisition Date (or such later date as
a majority of the Continuing Directors (as that term is defined) may designate)
and the Rights Expiration Date. Under certain circumstances set forth in the
Rights Agreement, the decision to redeem shall require the concurrence of a
majority of the Continuing Directors. Immediately upon the requisite action of
the Board of Directors ordering exchange or redemption of the Rights, the Rights
will terminate, and thereafter the only right of the holders of Rights will be
to receive shares of Common Stock or the redemption price, as the case may be.
"Continuing Director" means any member of the Board of Directors who was a
member of the Board prior to the time an Acquiring Person becomes such, or any
person who is subsequently elected to the Board if such person is recommended or
approved by a majority of the Continuing Directors. Continuing Director does not
include an Acquiring Person, or an affiliate or associate of an Acquiring
Person, or any representative of any of the foregoing.
The Purchase Price payable, and the number of Units or other securities or
property issuable upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Series A Preferred Stock;
(ii) if holders of the Series A Preferred Stock are granted certain rights or
warrants to subscribe for Series A Preferred Stock or convertible securities at
less than the then current market price of the Series A Preferred Stock; or
(iii) upon the distribution to holders of the Series A Preferred Stock of
evidences of indebtedness or assets (excluding regular quarterly cash dividends)
or of subscription rights or warrants (other than those referred to above). With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments amount to at least 1% of the Purchase Price. No
fractional Units are required to be issued and, in lieu thereof, an adjustment
in cash will be made based on the market price of the Series A Preferred Stock
on the last trading date prior to the date of exercise.
Until a Right is exercised, the holder will, as result thereof, have no
rights as a stockholder of the Company, including the right to vote or to
receive dividends.
Stockholders may, depending upon the circumstances, recognize taxable
income in the event that the Rights become exercisable for Series A Preferred
Stock or other consideration as set forth above.
Prior to the Rights Distribution Date, the Rights Agreement will, if the
Company so directs, be amended by the Company and the Rights Agent in any manner
that the Company may deem necessary or desirable without the approval of any
holders of Common Stock. After the Rights Distribution Date, the Rights
Agreement may be amended in any respect that does not adversely affect Rights
holders; provided that, after a person becomes an Acquiring Person, any
amendment requires the concurrence of a majority of the Continuing Directors.
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<PAGE> 21
At a special meeting on August 21, 1997, the Company's Board of Directors
acted to amend the Rights Agreement to, among other things, (i) exclude Parent
and the Purchaser from the definition of "Acquiring Person;" (ii) provide that
actions related to the Merger and the Merger Agreement will not trigger a
Distribution Date; (iii) provide that date of consummation of the Merger will
constitute a Rights Expiration Date; and (iv) provide that actions related to
the Merger and the Merger Agreement will not trigger the exercisability of the
Rights or the separation of the Rights from the Shares.
The Rights may have the effect of impeding the acquisition of control of
the Company by any parties other than Parent and the Purchaser and may also
discourage attempts to obtain control of the Company by means of a hostile
tender offer, even if such offer would be beneficial to stockholders generally,
and thereby protect the continuity of management. The Merger Agreement provides
that the Company will not take action pursuant to or amend the Rights Agreement,
redeem the Rights or terminate the Rights Agreement prior to the Effective Date
of the Merger. THEREFORE, THE BOARD OF DIRECTORS MAY NOT EXEMPT ANY OTHER
PROPOSED ACQUIROR OR ACQUISITION TRANSACTION FROM THE OPERATION OF THE RIGHTS
PLAN SO LONG AS THE MERGER AGREEMENT REMAINS IN EFFECT.
(II) SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
In general, Section 203 of the Delaware General Corporation Law ("Section
203" of the "DGCL") prevents an "Interested Stockholder" (defined generally as a
person that is the "owner" of 15% or more of a corporation's outstanding voting
stock from engaging in a "Business Combination" (defined as a variety of
transactions, including mergers, as set forth in the second following paragraph)
with a Delaware corporation for three years following the time such person
became an Interested Stockholder unless (i) before such person became an
Interested Stockholder, the board of directors of the corporation approved the
transaction in which the Interested Stockholder became an Interested Stockholder
or approved the Business Combination; (ii) upon consummation of the transaction
which resulted in the Interested Stockholder becoming an Interested Stockholder,
the Interested Stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced (excluding stock
held by directors who are also officers and employee stock ownership plans in
which employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or exchange
offer); or (iii) following the transaction in which such person became an
Interested Stockholder, the Business Combination is (x) approved by the board of
directors of the corporation and (y) authorized at a meeting of stockholders by
an affirmative vote of the holders of two-thirds of the outstanding voting stock
of the corporation not owned by the Interested Stockholder.
Section 203 provides that, during the three-year period following the date
a person becomes an Interested Stockholder, the corporation may not merge or
consolidate with an Interested Stockholder or any affiliate or associate
thereof, and also may not engage in certain other transactions with an
Interested Stockholder or any affiliate or associate thereof, including, without
limitation, (i) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition of assets (except proportionately as a stockholder of the
corporation) having an aggregate market value equal to 10% or more of the
aggregate market value of either the aggregate value of all of the assets of the
corporation or the aggregate market value of all of the outstanding stock of the
corporation; (ii) any transaction which results in the issuance or transfer by
the corporation or by certain subsidiaries thereof of any stock of the
corporation to the Interested Stockholder, subject to certain exceptions; (iii)
any transaction involving the corporation or any majority-owned subsidiary
thereof which has the effect of increasing the proportionate share of the stock
of any class or series, or securities convertible into the stock of any class or
series, of the corporation or any such subsidiary which is owned by the
Interested Stockholder (except as a result of immaterial changes due to
fractional share adjustments or as a result of any purchase or redemption of any
shares of stock not caused, directly or indirectly, by the Interested
Stockholder); or (iv) any receipt by the Interested Stockholder of the benefit
(except proportionately as a stockholder of such corporation) of any loans,
advances, guarantees, pledges or other financial benefits provided by or through
the corporation.
In accordance with the requirements of Section 203, the Company's Board of
Directors has approved the Merger and the Merger Agreement for the purpose of
exempting Parent and the Purchaser from the provisions
20
<PAGE> 22
of Section 203, and the terms of the Merger Agreement, the Stockholders
Agreements and the transactions contemplated thereby for the purpose of
exempting the Merger and the other transactions contemplated thereby from
Section 203. AS A RESULT, SECTION 203 WILL NOT APPLY TO CONSUMMATION OF THE
OFFER AND THE MERGER.
The foregoing summary of Section 203 of the DGCL is qualified in its
entirety by reference to the full text of that section.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- --------------------------------------------------------------------------------
<C> <S>
1 Offer to Purchase dated August 28, 1997.
2 Merger Agreement dated as of August 22, 1997 by and among Parent, the Purchaser
and the Company.
3 Information Statement Pursuant to Section 14(f) of the Securities Exchange Act
of 1934 and Rule 14f-1 thereunder.*
4 BioWhittaker, Inc. 1991 Long-Term Stock Incentive Plan (attached as Annex I to
the Form 10 General Form for Registration of Securities (the "Form 10") filed
with the Securities and Exchange Commission on September 25, 1991, and
incorporated herein by reference.
5 BioWhittaker, Inc. 1994 Stock Option Plan for Non-Employee Directors (attached
as Exhibit A to the Company's 1994 Proxy Statement and incorporated herein by
reference).
6 Form of Change of Control Employment Agreement dated March 11, 1997, between the
Company and certain Executives thereof (included as Exhibit 10.19 to the
Company's Quarterly Report on Form 10-Q for the quarter ended April 30, 1997 and
incorporated herein by reference) and Assumption Agreement dated as of August
22, 1997.
7 (a) Form of Employment Letter dated August 18, 1997 between Parent and each of
the Executives who is a party to a Change of Control Employment Agreement.
(b) Form of Employment Letter dated August 18, 1997, between Parent and Noel L.
Buterbaugh
8 (a) Form of Stockholders Agreement by and among Parent, the Purchaser and
certain officers and directors of the Company.
(b) Form of Stockholders Agreement by and among Parent the Purchaser and Anasco
GmbH.
9 Opinion of Alex. Brown & Sons Incorporated dated August 22, 1997.**
10 Form of Stockholder Rights Protection Agreement between the Company and Bank of
Boston, as Rights Agent (the "Rights Agreement" (included as Exhibit 4.2 to the
Company's Annual Report on Form 10-K for the fiscal year ended October 31, 1995,
and incorporated herein by reference).
11 Amendment No. 1 to the Rights Agreement dated as of August 22, 1997.
12 Letter to Stockholders dated August 28, 1997.***
13 Press Release issued by Parent and the Company on August 25, 1997.
14 Form of letter to participants in BioWhittaker, Inc.'s Savings and Stock
Investment Plan ("BSSIP").***
15 intentionally omitted
16 Confidentiality Agreement between Company and Parent dated March 20, 1997.
</TABLE>
- ---------------
* Included as Annex A hereto.
** Included as Annex B hereto.
*** Included in materials mailed to stockholders or participants in the BSSIP.
21
<PAGE> 23
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this Statement is true,
complete and correct.
BIOWHITTAKER, INC.
Date: August 28, 1997 By: /s/ Noel L. Buterbaugh
--------------------------------------
Name: Noel L. Buterbaugh
Title: President and Chief Executive
Officer
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<PAGE> 24
ANNEX A
BIOWHITTAKER, INC.
8830 BIGGS FORD ROAD
WALKERSVILLE, MD 21793-0127
(301) 898-7025
INFORMATION STATEMENT PURSUANT TO
SECTION 14(f) OF THE SECURITIES EXCHANGE ACT OF 1934 AND
RULE 14f-1 THEREUNDER
This Information Statement is being mailed on or about August 28, 1997, as
part of the Solicitation/Recommendation Statement on Schedule 14D-9 (the
"Schedule 14D-9") of BioWhittaker, Inc. (the "Company") to the holders of record
of shares of Common Stock, par value $0.01 per share (the "Common Stock"), and
the associated Preferred Stock Purchase Rights (the "Rights" and, together with
such Common Stock, the "Shares") of the Company. Capitalized terms used in this
Information Statement and not otherwise defined herein shall have the meanings
ascribed thereto in the Schedule 14D-9. You are receiving this Information
Statement in connection with the possible election of persons designated by the
Purchaser to a majority of the seats on the board of directors of the Company
(the "Board of Directors" or the "Board").
On August 22, 1997, Cambrex Corporation, a Delaware corporation ("Parent"),
its wholly-owned subsidiary, BW Acquisition Corporation, a Delaware corporation
(the "Purchaser"), and the Company, entered into an Agreement and Plan of Merger
dated August 22, 1997 (the "Merger Agreement"), pursuant to which, and subject
to the terms and conditions of which, (i) Parent will cause the Purchaser to
commence a tender offer (the "Offer") for all of the outstanding Shares, at a
price per Share of $11.625, net to the seller in cash and without interest
thereon, and (ii) the Purchaser will be merged with and into the Company (the
"Merger"). As a result of the Offer and the Merger, the Company will become a
wholly owned subsidiary of Parent.
The Merger Agreement requires the Company to cause the directors designated
by the Purchaser to be elected to the Board of Directors under the circumstances
described therein. See "Board of Directors and Executive Officers."
This Information Statement is required by Section 14(f) of the Exchange Act
and Rule 14f-1 thereunder. YOU ARE URGED TO READ THIS INFORMATION STATEMENT
CAREFULLY. YOU ARE NOT, HOWEVER, REQUIRED TO TAKE ANY ACTION AT THIS TIME.
Pursuant to the Merger Agreement, the Purchaser commenced the offer on
August 28, 1997. The Offer is scheduled to expire at 12:00 midnight, New York
City time, on September 25, 1997, unless the Offer is extended, at which time,
if all conditions to the Offer have been satisfied or waived, the Purchaser will
purchase all of the Shares validly tendered pursuant to the Offer and not
properly withdrawn.
The information contained in this Information Statement (including any
information incorporated by reference) concerning Parent, the Purchaser and the
Purchaser Designees has been furnished to the Company by Parent and the
Purchaser, and the Company assumes no responsibility for the accuracy or
completeness of such information.
BOARD OF DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY
GENERAL
The Common Stock is the only class of voting securities of the Company
currently outstanding. As of the close of business on August 25, 1997, there
were 10,881,210 shares of Common Stock outstanding, each of which is entitled to
one vote on each matter to be considered at a meeting of stockholders and
1,071,388 shares of Common Stock issuable upon exercise of outstanding options.
<PAGE> 25
The Board of Directors is a classified board, presently consisting of six
directors. Directors are divided into three classes, each consisting of
one-third of the total number of directors. Class I, Class II and Class III
directors hold office for "staggered" terms of three years which expire in 1998,
1999 and 2000, respectively, in each case at the annual meeting of stockholders
held in such year or when their respective successors are duly elected and
qualified. The officers of the Company are elected annually by the Board of
Directors at the Board's annual meeting and each holds office until his or her
successor is elected and qualified or until his or her earlier death,
resignation or removal.
PURCHASER DESIGNEES TO THE COMPANY'S BOARD OF DIRECTORS
Pursuant to the Merger Agreement, and subject to compliance with Section
14(f) of the Exchange Act and Rule 14f-1 thereunder, promptly upon purchase by
the Purchaser of Shares pursuant to the Offer the Purchaser will be entitled to
designate up to the minimum number of directors (the "Purchaser Designees")
necessary in order for the result (expressed as a fraction) derived by dividing
the number of Purchaser Designees by the total number of directors constituting
the whole Board to be at least equal to the result (expressed as a fraction)
derived by dividing the number of Shares then held by the Purchaser by the total
number of Shares then outstanding; provided that until the Effective Time of the
Merger, the Board of Directors will have at least two directors who are neither
(i) Purchaser Designees nor otherwise affiliated with Parent or the Purchaser,
(ii) employees or the Chairman of the Company or any of its subsidiaries, nor
(iii) affiliated with Anasco GmbH ("Independent Directors"). The Company has
agreed to use its best efforts promptly, at the Company's election, either to
increase the size of the Board or to secure the resignations of such number of
directors as is necessary to enable the Purchaser Designees to be elected to the
Board and to cause the Purchaser Designees to be so elected.
Following the election or appointment of the Purchaser Designees, and prior
to the Effective Time of the Merger, any amendment of the Merger Agreement or of
the Certificate of Incorporation or By-laws of the Company, any termination of
the Merger Agreement by the Company, any extension by the Company of the time
for the performance of any of the obligations or other acts of Parent or the
Purchaser and any waiver of any of the Company's rights under the Merger
Agreement will require the concurrence of a majority of the Independent
Directors then in office.
It currently has not been determined whether the addition of Purchaser
Designees to the Board of Directors will be accomplished by an increase in the
number of directors constituting the whole Board or the resignation of one or
more of the Company's current directors and, if through the resignation of
current directors, which of such current directors would resign.
Parent and the Purchaser have informed the Company that the Purchaser
Designees will be selected from among the persons set forth on the following
table. That table sets forth the name, age, present principal occupation and
employment and five year employment history of each of the persons whom the
Purchaser has indicated may be designated as a Purchaser Designee pursuant to
the Merger Agreement. Purchaser has informed the Company that each person named
below has consented to act as a director of the Company, if so designated.
2
<PAGE> 26
<TABLE>
<CAPTION>
NAME AGE OCCUPATION
- -------------------------- --- -------------------------------------------------------------
<S> <C> <C>
Peter Tracey.............. 55 President of BW Acquisition Corp.; Executive Vice President,
Corporate Development of Cambrex Corp. since March 1997; CFO
and Vice President of Finance of Cambrex Corp. from 1990 to
March 1997.
Peter Thauer.............. 57 Vice President and Secretary of BW Acquisition Corp.; Vice
President of Cambrex Corp. since 1992; General Counsel and
Secretary of Cambrex Corp. since 1989.
Douglas H. MacMillan...... 51 Vice President, CFO, and Assistant Secretary of BW
Acquisition Corp.; Vice President and CFO of Cambrex Corp.
since April 1997; Vice President and CFO of Morgan Products
Ltd. from 1991 to April 1997.
Mary E. Fletcher.......... 35 Senior Counsel of Cambrex Corp. since January 1997; Associate
Counsel of Cambrex Corp. from 1992 to 1997.
Salvatore J. Guccione..... 34 Vice President, Commercial Development of Cambrex Corp. since
1996; Vice President and General Manager of International
Specialty Products from 1993 to 1995.
Ronald A. Pizzo........... 55 Controller of Cambrex Corp. since 1992.
</TABLE>
The Purchaser has informed the Company that none or the executive officers
or directors of Parent or the Purchaser (i) currently is a director of, or holds
any position with, the Company or any of its subsidiaries or (ii) has a familial
relationship with any director or executive officer of the Company or any of its
subsidiaries. The Company has been advised that, to the best knowledge of Parent
and the Purchaser none of Parent's or the Purchaser's directors or executive
officers owns any equity securities (or rights to acquire any equity securities)
of the Company, and none has been involved in any transactions with the Company
or any of its directors, executive officers, affiliates or associates that are
required to be disclosed pursuant to the rules and regulations of the Securities
and Exchange Commission.
It is expected that the Purchaser Designees may assume office at any time
following the purchase of sufficient Shares pursuant to the Offer.
CURRENT DIRECTORS OF THE COMPANY
The following table sets forth certain information regarding the directors
of the Company as of August 25, 1997.
<TABLE>
<CAPTION>
DIRECTOR CLASS
NAME AGE SINCE OF DIRECTOR RECENT BUSINESS EXPERIENCE
- ------------------------------------- --- -------- ----------- --------------------------------
<S> <C> <C> <C> <C>
Joseph F. Alibrandi.................. 68 1991 II Mr. Alibrandi has served as
Chairman of the Board of
Directors of the Company since
October 1991 and served as Chief
Executive Officer of the Company
from September 1991 until
September 1992. He has served as
Chairman of the Board of
Directors of Whittaker since
1985, as its Chief Executive
Officer from 1974 until 1995 and
again from October 1996 to the
present. He served for the
second time as President of
Whittaker from October 1991
until August 1993.
Noel L. Buterbaugh................... 64 1991 III Mr. Buterbaugh, who has been
with the Company since 1952, has
served as Chief Executive
Officer since September 1992 and
as President since 1979. From
October 1991 until September
1992 he was the Chief Operating
Officer of the Company.
</TABLE>
3
<PAGE> 27
<TABLE>
<CAPTION>
AGE DIRECTOR CLASS
NAME -- SINCE OF DIRECTOR RECENT BUSINESS EXPERIENCE
- ------------------------------------- ---
<S> <C> <C> <C> <C>
Rudiger Erckel....................... 50 1995 III Dr. Erckel has served as
Managing Director for the
Chemicals Division of Boehringer
Ingelheim KG, since 1994. Prior
to joining Boehringer Ingelheim,
Dr. Erckel held a variety of
senior executive positions with
Hoechst AG. Dr. Erckel is the
nominee of Anasco GmbH to serve
as its designee on the Board.
See "Relationship Between the
Company and the Boehringer
Ingelheim Group -- Purchase of
Company Common Stock, Board
Representation and Voting
Arrangements."
Stanley M. Lemon..................... 49 1993 II Dr. Lemon is a Professor and
Chair the Department of
Microbiology and Immunology at
the University of Texas Medical
Branch at Galveston (since April
1997). Previously, he was
Professor of Medicine and
Microbiology and Immunology
(since 1989) and Associate
Chairman for Research in the
Department of Medicine (since
1990) at the University of North
Carolina at Chapel Hill.
John L. Sever........................ 65 1991 I Dr. Sever is a medical doctor
who has been a Professor of
Pediatrics, Obstetrics and
Gynecology, Microbiology and
Immunology at George Washington
University Children's National
Medical Center since 1988.
Thomas R. Winkler.................... 54 1993 I Mr. Winkler joined the Company
in 1981 and served as Vice
President and General Manager
responsible for cell culture and
endotoxin detection products
from 1984 until his appointment
as Executive Vice President and
Chief Operating Officer in
September 1993.
</TABLE>
Information as to the directors' beneficial ownership of Common Stock is
set forth below, at "Equity Securities and Certain Holders Thereof."
The directors serve on the boards of directors of other publicly held
companies as follows: Mr. Alibrandi -- Catellus Development Corporation, Jacobs
Engineering Group, Inc., Burlington Northern Santa Fe, BankAmerica Corporation,
and Whittaker; Mr. Buterbaugh -- First Bank of Frederick; and Mr.
Winkler -- Farmers and Mechanics National Bank.
DIRECTOR COMPENSATION
During fiscal year 1996, directors received annual fees of $20,000 for
serving on the Board of Directors and annual fees of $2,000 per committee for
serving on various committees of the Board. Directors received an additional fee
of $750 per day for participation in meetings of the Board and its committees,
except for telephonic meetings for which they received a fee of $500 per meeting
for meetings lasting longer than 30 minutes. Directors who are employees of the
Company receive no additional compensation for their services as
4
<PAGE> 28
directors. Directors are reimbursed for travel and other expenses related to
their attendance at Board and committee meetings. Non-employee directors who are
not the designee of any stockholder of the Company also receive automatic annual
grants of stock options in accordance with the terms of the BioWhittaker, Inc.
1994 Stock Option Plan for Non-Employee Directors. For fiscal year 1996, grants
to purchase 1,000 shares of Common Stock were awarded to each eligible,
non-employee director on January 2, 1996. The Board held 11 meetings in fiscal
1996 (including regularly scheduled and special meetings). For calendar year
1997, consistent with the trend toward making director compensation more related
to company performance, the annual fee paid to non-employee directors has been
reduced to $10,000 and the grants of stock options to non-employee directors has
been increased to options for 5,000 shares of Common Stock.
COMMITTEES OF THE BOARD OF DIRECTORS
The Audit Committee reviews and acts or reports to the Board with respect
to various auditing and accounting matters, including the selection of the
Company's independent auditors, the scope of audit procedures, the nature of
services to be performed for the Company by, and the fees to be paid to, the
independent auditors, the performance of the Company's independent auditors and
the accounting practices of the Company. The Audit Committee held three meetings
in fiscal 1996. The members of the Audit Committee are Drs. Sever and Lemon.
The Compensation Committee has been delegated the functions of the Board
with respect to the compensation of executive officers and the administration of
the Company's 1991 Long-Term Stock Incentive Plan, pursuant to which stock-based
awards, including stock options and restricted stock, may be made. The
Compensation Committee held two meetings in fiscal 1996.
The members of the Compensation Committee are Drs. Sever, Lemon and Erckel.
The Nominating Committee recommends nominees for election as directors at annual
meetings of stockholders and to fill vacancies that may occur between annual
meetings. The Nominating Committee considers as potential nominees persons
recommended by stockholders. Recommendations should be submitted to the
Nominating Committee in care of the Secretary of the Company. The Nominating
Committee met once in fiscal 1996. The members of the Nominating Committee are
Drs. Sever, Lemon and Erckel.
CURRENT DIRECTORS OF THE COMPANY
The following table sets forth certain information regarding the executive
officers of the Company as of August 25, 1997.
<TABLE>
<CAPTION>
NAME AGE POSITIONS
- ------------------------------------- --- -----------------------------------------------------
<S> <C> <C>
Noel L. Buterbaugh................... 64 President and Chief Executive Officer
Thomas R. Winkler.................... 54 Executive Vice President and Chief Operating Officer
Philip L. Rohrer, Jr. ............... 40 Vice President and Chief Financial Officer
Leif E. Olsen........................ 47 Vice President, Regulatory Affairs
F. Dudley Staples, Jr. .............. 50 General Counsel and Corporate Secretary
</TABLE>
Biographical information relating to Messrs. Buterbaugh and Winkler appears
above at "Current Directors of the Company."
Mr. Rohrer, who joined the Company in 1978, has held a number of positions
with the Company including Chief Financial Officer from 1988 until December 1992
and from September 1993 to the present. Mr. Rohrer was elected a Vice President
of the Company in September 1991. He served as Vice President and General
Manager responsible for clinical diagnostic testing products from September 1992
to September 1993 and also as Secretary of the Company from September 1993 to
September 1995.
Mr. Olsen, who joined the Company in 1983, has held a number of positions
with the Company, including Director of Regulatory Affairs from 1985 until
December 1994. Mr. Olsen was elected Vice President for Regulatory Affairs in
January 1995.
5
<PAGE> 29
Mr. Staples joined the Company as General Counsel and Corporate Secretary
in September 1995. Prior to joining the Company and since 1985, Mr. Staples was
a partner in the Business Division of the law firm of Venable, Baetjer and
Howard, LLP, of Baltimore, Maryland.
The officers of the Company are elected annually by the Board of Directors
at the Board's annual meeting and each holds office until his or her successor
is elected and qualified or until his or her earlier death, resignation or
removal.
EQUITY SECURITIES AND CERTAIN HOLDERS THEREOF
The following table sets forth, as of August 25, 1997, certain information
with respect to the beneficial ownership of Shares (the only voting securities
of the Company currently outstanding) for (i) each of the Company's current
directors and nominees, each of the Company's executive officers named in the
Summary Compensation Table at "Executive Compensation and Other Information,"
and all directors, nominees and executive officers of the Company as a group,
and (ii) each person known by the Company to own more than 5% of the Shares.
Each Share entitles the holder thereof to one vote on each matter submitted to a
vote of the Company's stockholders. As of August 25, 1997, there were 10,881,210
Shares of Common Stock issued and outstanding.
"Beneficial ownership" is determined in accordance with Rule 13d-3(d)(1) of
the Exchange Act and includes (as indicated in the footnotes to the table below)
as to each officer of the Company (i) the number of Shares allocated to such
person's account in the BioWhittaker Savings and Stock Investment Plan (the
"BSSIP") and (ii) any options to purchase Shares which are exercisable within 60
days of August 25, 1997.
<TABLE>
<CAPTION>
AMOUNT AND
NATURE OF PERCENTAGE OF
NAME AND ADDRESS OWNERSHIP OUTSTANDING SHARES
- -------------------------------------------------------------- ---------- ------------------
<S> <C> <C>
DIRECTORS, NOMINEES AND OFFICERS
Joseph F. Alibrandi......................................... 706,052 (1) 6.5%
c/o Whittaker Corporation
1955 N. Surveyor Avenue
Simi Valley, CA 93063
Noel L. Buterbaugh.......................................... 434,238 (2) 3.9%
Rudiger Erckel.............................................. 2,097,043 (3) 19.3%
c/o Boehringer Ingelheim KG
D 55216 Ingelheim/Rhein
Federal Republic of Germany
John L. Sever............................................... 8,500 (4) *
Stanley M. Lemon............................................ 8,000 (4) *
Thomas R. Winkler........................................... 272,810 (5) 2.45%
Philip L. Rohrer, Jr........................................ 191,331 (6) 1.7%
F. Dudley Staples, Jr....................................... 28,453 (7) *
All Directors, Nominees and Executive Officers as a group
(9 persons).............................................. 3,782,847 (8) 32.0%
OTHER 5% STOCKHOLDERS
Anasco GmbH................................................. 2,097,043 (9) 19.3%
D 6507 Ingelheim am Rhein
Federal Republic of Germany
Pioneering Management Corporation........................... 1,063,000 (9) 9.8%
60 State Street
Boston, MA 02109
Marcus Schloss & Co., Inc................................... 855,700 (9) 7.9%
One Whitehall Street
New York, NY 10004
</TABLE>
6
<PAGE> 30
- ---------------
* Less than 1% of the outstanding Shares.
(1) Includes options to purchase 5,000 Shares.
(2) Includes 720 Shares owned by Mr. Buterbaugh's spouse, 26,163 shares in the
BSSIP and options to purchase 434,238 Shares.
(3) All such Shares are owned by Anasco, a member of the Boehringer Ingelheim
Group. See "Relationship Between the Company and the Boehringer Ingelheim
Group." Because Dr. Erckel is the current designee of Anasco on the Company
Board of Directors, he may be deemed to own such Shares beneficially. Dr.
Erckel, however, disclaims beneficial ownership of such Shares.
(4) Includes options to purchase 8,000 Shares.
(5) Includes 9,437 Shares in the BSSIP and options to purchase 262,873 Shares.
(6) Includes 10,431 Shares in the BSSIP and options to purchase 191,331 Shares.
(7) Includes 28,000 options to purchase 28,000 Shares and 453 Shares in the
BSSIP.
(8) Includes 49,904 Shares allocated to the accounts of the officers in the
BSSIP and options to purchase 926,928 Shares.
(9) The holder has advised the Company that it holds sole voting power and
investment power as to these shares.
The Company has no reason to believe that the officers and directors of the
Company did not have sole voting power and sole investment power with respect to
the foregoing securities, except (i) with respect to 49,904 Shares beneficially
owned under the BSSIP pursuant to which the trustee under the plan has the power
to vote shares, subject to each participant's direction on voting and (ii) as to
which beneficial ownership, voting power or investment power is disclaimed or
shared, as described in footnotes (2) and (3) above.
EXECUTIVE COMPENSATION AND OTHER INFORMATION
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Rudiger Erckel, who serves as a member of the Compensation Committee, is an
employee of Boehringer Ingelheim KG, a member of the Boehringer Ingelheim Group.
Anasco GmbH (which is a member of the Boehringer Ingelheim Group) was the owner,
as of August 25, 1997 of 2,097,043 Shares. See "Equity Securities and Certain
Holders Thereof." In addition, the Company has an agreement with the Boehringer
Ingelheim Group to distribute certain Company products throughout Europe, the
former Soviet Union, and parts of North Africa and the Middle East. The Company
also has a right, by agreement and under certain conditions, to reacquire a 50%
interest in its former manufacturing and distribution joint venture with the
Boehringer Ingelheim Group. See "Relationship Between the Company and the
Boehringer Ingelheim Group."
CASH COMPENSATION
Cash compensation which was earned for services in all capacities for the
1994, 1995 and 1996 fiscal years, and which the Company and its subsidiaries
paid to or accrued for each of the persons who served as executive officers of
the Company during the last fiscal year, is set forth in the following table.
7
<PAGE> 31
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG TERM
COMPENSATION
AWARDS
------------
ANNUAL COMPENSATION(1) NUMBER OF
-------------------------------- SECURITIES ALL OTHER
FISCAL SALARY BONUS UNDERLYING COMPENSATION
NAME & PRINCIPAL POSITION YEAR ($)(2) ($)(3) OPTIONS ($)(4)
- ----------------------------------- ------ -------- -------- ------------ ------------
<S> <C> <C> <C> <C> <C>
Noel L. Buterbaugh................. 1996 $261,054 $172,147 -- $ 71,969
President and Chief 1995 247,113 163,914 -- 11,165
Executive Officer 1994 215,398 89,384 100,000 26,706
Thomas R. Winkler.................. 1996 182,737 118,351 -- 52,172
Vice President and Chief 1995 171,532 117,082 -- 10,071
Operating Officer 1994 142,709 63,820 100,000 20,783
Philip L. Rohrer, Jr. ............. 1996 126,348 76,390 -- 17,419
Vice President and 1995 119,726 65,566 -- 9,917
Chief Financial Officer 1994 108,857 35,739 100,000 7,950
Joseph F. Alibrandi................ 1996 124,987 -- -- --
Chairman of the 1995 131,243 -- -- --
Board of Directors 1994 157,518 54,247 -- --
F. Dudley Staples, Jr. ............ 1996 99,237 26,898 25,000 796
General Counsel and 1995 9,616 -- -- --
Secretary(5) 1994 -- -- -- --
</TABLE>
- ---------------
(1) Does not include perquisites and other personal benefits, securities or
property where the aggregate amount of such compensation to an executive
officer is the lesser of either $50,000 or 10% of annual salary and bonus.
(2) Includes salary deferrals under the BSSIP in 1994, 1995 and 1996.
(3) Comprises bonuses under the Bonus Plan, in 1994, 1995 and 1996, which were
accrued during the fiscal year indicated but were paid or will be paid
during the following fiscal year.
(4) Includes matching contributions made by the Company in 1994, 1995 and 1996
under the BSSIP and in 1996 under the BioWhittaker Deferred Compensation
Plan ("BDCP") included in the SERP. Under the BSSIP, the Company makes
matching contributions to participating employees' accounts on the basis of
three-quarters of the first 2% of the compensation contributed by the
employee, five-eighths of the second 2% of the compensation contributed by
the employee and one-half of the third 2% of compensation contributed by the
employee. Employees' salary deferral contributions above 6% of compensation
are not matched by the Company. Under the BDCP, deferrals made by eligible
executive officers of up to 15% of total eligible compensation are matched
by the Company. Also includes allocations to the BioWhittaker, Inc.
Retirement Plan, a defined contribution plan. The fiscal 1996 matching
contributions paid by the Company under the BSSIP, and the BDCP, and the
1996 allocations to the retirement plan are as follows:
<TABLE>
<CAPTION>
BSSIP BDCP RETIREMENT PLAN
CONTRIBUTION CONTRIBUTION ALLOCATION
------------ ------------ ---------------
<S> <C> <C> <C>
Mr. Buterbaugh....................... $5,625 $ 57,094 $ 8,440
Mr. Winkler.......................... 5,625 40,884 5,663
Mr. Rohrer........................... 5,625 7,830 4,448
Mr. Alibrandi........................ 5,141 -- --
Mr. Staples.......................... 274 -- 522
</TABLE>
(5) Mr. Staples joined the Company in September 1995.
8
<PAGE> 32
EMPLOYMENT CONTRACT
Mr. Alibrandi had an Employment Agreement with the Company, dated as of
October 31, 1991 (the "Employment Agreement") pursuant to which he was paid
$125,000 per year for services rendered to the Company. Due to other
commitments, Mr. Alibrandi requested that the agreement be terminated effective
December 31, 1996. Mr. Alibrandi now is compensated as a non-employee director.
CHANGE OF CONTROL EMPLOYMENT AGREEMENTS
The Company has entered into Change of Control -- Employment Agreements
("Change of Control Agreements") with Thomas Winkler, Philip L. Rohrer, Jr.,
Leif Olsen and F. Dudley Staples, Jr. (each, an "Executive" and, collectively,
the "Executives"). The Change of Control Agreements generally provide, in the
event of a change of control (as defined) of the Company, for the continued
employment of each of the Executive for a period of two years at salary, bonus
and benefit levels no less favorable than those to which each Executive was
entitled during the 120-day period immediately preceding to the change of
control. In the event of termination of an Executive's employment during the two
year period following a change in control by reason of the Executive's death or
disability, the Executive or his estate, as the case may be, is entitled to
receive (i) any unpaid portion of the Executive's annual base salary and any
annual bonus earned for years prior to the year in which the termination occurs;
(ii) the ratable portion of the average of the bonuses paid to the Executive
under the Company's annual bonus plan, or any comparable bonus under any
predecessor or successor plan, including any bonus earned but deferred, for the
last three full fiscal years prior to the change in control the ("Termination
Bonus"); and (iii) the unpaid portion of any compensation previously deferred
and any accrued vacation pay (collectively, the "Accrued Obligations"). In
addition, the Company is obligated to timely pay or provide any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or agreement of
the Company ("Other Benefits") in accordance with the terms thereof.
If an Executive's employment is terminated by the Company for "cause" or by
the Executive not for "good reason" (as each of those terms is defined), the
Executive is entitled to receive his Executive's Accrued Obligations, exclusive
of the Termination Bonus, and the Company is obligated to make timely payment or
provision of Other Benefits.
If an Executive's employment is terminated by the Company for any reason
other than for cause, death or disability, or by the Executive for Good Reason
the Company will be obligated to pay the following to the Executive: (i) all
Accrued Obligations; (ii) the sum of the Executive's Annual Base Salary and
Annual Bonus for the most recently completed fiscal year prior to the Date of
Termination; and (iii) a lump-sum supplemental retirement benefit. In addition,
during the remainder of the two-year period following the change of control (or
such longer period as any plan, program practice or policy may provide), the
Company will be obligated to continue benefits to the Executive and, where
applicable, the Executive's family, as if the Executive's employment had not
been terminated; provided that if the Executive obtains other full-time
employment providing any comparable benefits, the Company may discontinue
providing any benefits comparable to those provided by the new employer.
For purpose of the Change of Control Agreements, "cause" generally includes
any of the following which is or is determined likely to be demonstrably harmful
to the Company: (i) the willful and continued failure of the executive to
perform substantially the Executive's duties with the Company or one of its
affiliates; (ii) the willful engaging by the Executive in illegal conduct or
gross misconduct which is demonstrably injurious to the Company; (iii)
commission of an intentional act of fraud, embezzlement or theft by the
Executive in connection with the Executive's duties or in the course of the
Executive's employment; (iv) causing intentional, wrongful damage to property of
the Company; (v) intentionally and wrongfully disclosing secret processes or
other material confidential information of the Company or its customers; or (vi)
participating without the Company's consent in the management of any business
enterprise which engages in substantial and direct competition with the Company.
"Good reason" generally includes (i) the assignment to the Executive of any
duties inconsistent in any material respect with the Executive's position,
authority, duties or responsibilities or any other action by the Company which
results in a diminution in such position, authority,
9
<PAGE> 33
duties or responsibilities; (ii) any failure by the Company to comply with any
of the compensation provisions of the Change of Control Agreement; (iii) the
Company's requiring the Executive to be based at any office or location other
than as provided in the Change of Control Agreement or the Company's requiring
the Executive to travel on Company business to a substantially greater extent
than required in the ordinary course in the 12 month period prior to the
Effective Date of the Change of Control Agreement; (iv) any purported
termination by the Company of the Executive's employment otherwise than as
expressly permitted by the Change of Control Agreement; or (v) any failure by
the Company to require any successor to all or substantially all of the business
and/or assets of the Company to assume and agree to perform the Change of
Control Agreement to the same extent that the Company would be required to
perform absent any such succession.
EXECUTIVE RETIREMENT PLAN
Three of the executive officers in the Summary Compensation Table, Messrs.
Buterbaugh, Winkler and Rohrer, participate in the SERP, a nonqualified
supplemental retirement plan which provides an annual retirement benefit payable
for the life of the participant, equal to up to 55% of the participant's average
covered compensation for the highest five out of the last seven years preceding
retirement. The plan also includes a separate deferred compensation plan See
"Executive Compensation and Other Information -- Summary Compensation Table
(footnote 4)."
The following table sets forth approximate annual retirement benefits for
retirement at age 65 which would be payable under the SERP, without reflecting
reductions for the offset of pension and Social Security benefits and without
reflecting compensation under the separate deferred compensation plan.
<TABLE>
<CAPTION>
YEARS OF SERVICE
------------------------------------------------------------
AVERAGE ANNUAL COMPENSATION 15 20 25 30 35
---------------------------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
$125,000.................... $ 51,563 $ 68,750 $ 68,750 $ 68,750 $ 68,750
150,000.................... 61,875 82,500 82,500 82,500 82,500
175,000.................... 72,188 96,250 96,250 96,250 96,250
200,000.................... 82,500 110,000 110,000 110,000 110,000
225,000.................... 92,813 123,750 123,750 123,750 123,750
250,000.................... 103,125 137,500 137,500 137,500 137,500
300,000.................... 123,750 165,000 165,000 165,000 165,000
400,000.................... 165,000 220,000 220,000 220,000 220,000
450,000.................... 185,625 247,500 247,500 247,500 247,500
500,000.................... 206,250 275,000 275,000 275,000 275,000
</TABLE>
Credited years of service and current compensation covered by the plan for
the participants are as follows: Mr. Buterbaugh, 45 years and $339,000; Mr.
Winkler, 16 years and $239,000; Mr. Rohrer, 19 years and $157,000. The covered
compensation consists of salary and bonus. The benefits shown above are subject
to deduction for Social Security benefits and amounts received from certain
pension plans.
OPTION GRANTS
The following table shows, as to each person named in the Summary
Compensation Table, the options to purchase Common Stock granted by the Company
under the Company's Stock Plan in fiscal 1996.
10
<PAGE> 34
OPTION GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
PERCENTAGE OF
NUMBER OF TOTAL OPTIONS
SECURITIES GRANTED TO EXERCISE GRANT DATE
UNDERLYING OPTIONS EMPLOYEES IN PRICE PER EXPIRATION PRESENT
NAME GRANTED (SHARES) FISCAL 1996 SHARE DATE VALUE(1)
- ----------------------------------- ------------------ ------------- --------- ---------- -------------
<S> <C> <C> <C> <C> <C>
Noel L. Buterbaugh................. -- -- -- -- --
Thomas R. Winkler.................. -- -- -- -- --
Philip L. Rohrer, Jr. ............. -- -- -- -- --
Joseph F. Alibrandi................ -- -- -- -- --
F. Dudley Staples, Jr. ............ 25,000(2) 92.6% $6.75 12/11/05 $98,000
</TABLE>
- ---------------
(1) Based upon the Black-Scholes option valuation model. Per option value is
determined using the Black-Scholes option pricing model to be $3.92, with a
Black-Scholes ratio value of 0.5881, using the following assumptions: stock
volatility of 0.3527; annualized risk-free rate of 5.71%, 10-year option
term; and 0.00% dividend yield for the stock. The actual value, if any, an
executive may realize will depend on the excess of the stock price over the
exercise price on the date the option is exercised and there is no assurance
that the value realized will be at or near the value estimated by the
Black-Scholes model.
(2) This option is non-qualified, non-transferable other than by will or the.
law of descent and distribution, becomes fully exercisable upon the earliest
to occur of (i) the attainment of designated targets of PTNI for the
Company; (ii) the expiration of five years following the date of grant; or
(iii) a change in control of the Company, and is exercisable for a term of
10 years unless terminated sooner in the event of death, disability,
retirement, or other termination of employment.
FISCAL 1996 STOCK OPTION EXERCISES AND YEAR-END OPTION VALUES
The following table shows, as to each of the individuals named in the
Summary Compensation Table above, information concerning exercises of stock
options in the last fiscal year and 1996 fiscal year-end option values.
FISCAL 1996 STOCK OPTION EXERCISES AND YEAR-END OPTION VALUES
<TABLE>
<CAPTION>
SHARES NUMBER OF SECURITIES
ACQUIRED VALUE UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
ON EXERCISE REALIZED OPTIONS AT FISCAL IN-THE-MONEY OPTIONS AT
NAME (SHARES) ($) YEAR-END(#) FISCAL YEAR-END($)(1)
- ------------------------------- ----------- -------- --------------------------- ---------------------------
EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Noel L. Buterbaugh............. -- -- 335,722 58,333 $ 285.397 $45,833
Thomas R. Winkler.............. -- -- 204,790 52,083 151,378 45,833
Philip L. Rohrer, Jr. ......... -- -- 139,584 35,416 45,834 22,916
F. Dudley Staples, Jr. ........ -- -- -- 25,000 -- --
Joseph F. Alibrandi............ -- -- -- -- -- --
</TABLE>
- ---------------
(1) Based upon an assumed fair market value of $7.375 per share.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
One report on Form 4 reflecting the acquisition by Mr. Staples of an option
to purchase Shares issued under the Company's employee benefits plan was
inadvertently filed late.
RELATIONSHIP BETWEEN THE COMPANY AND
THE BOEHRINGER INGELHEIM GROUP
In October, 1991, the Company sold to Anasco GmbH ("Anasco"), an affiliate
of Boehringer Ingelheim International GmbH ("Boehringer Ingelheim"), newly
issued Common Stock then representing 19.9% of the
11
<PAGE> 35
outstanding Common Stock after such sale. Boehringer Ingelheim is one of a group
of several closely held corporations which, along with their affiliates and
subsidiaries, are sometimes collectively referred to herein as the "Boehringer
Ingelheim Group." A subsidiary of the Company entered into a joint venture and
partnership agreement (the "Joint Venture Agreement") with another member of the
Boehringer Ingelheim Group, to manufacture cell culture products in Belgium for
distribution throughout Europe, the former Soviet Union, and parts of North
Africa and the Middle East (the "Territory").
In April 1995, the Company terminated its interest in the joint venture,
with the right to repurchase its interest under certain conditions. In the
meantime, the joint venture (the "BI Joint Venture Affiliate"), now wholly owned
by the Boehringer Ingelheim Group is continuing its operation in the Territory.
The Boehringer Ingelheim Group has merged certain subsidiaries into the BI Joint
Venture Affiliate, including the subsidiaries described at "-- Other
Relationships -- Distribution Arrangements," below. The Company has entered into
an exclusive distribution arrangement with the BI Joint Venture Affiliate for
the distribution and sale of the Company's products in the Territory. The
Company has agreed otherwise not to compete with the joint venture's business in
the Territory during such time as the Company has the right to repurchase its
interest in the BI Joint Venture Affiliate or for two years after the
termination of the Company's right to repurchase its interest in the BI Joint
Venture Affiliate in the event that the Company experiences a change of control
or in certain other circumstances.
JOINT VENTURE; DISTRIBUTION IN EUROPE
On October 31, 1991, BioWhittaker International, Inc. ("BWI"), a subsidiary
of the Company, entered into the Joint Venture Agreement with Boehringer
Ingelheim Bioproducts, Inc. ("BIBI"), a member of the Boehringer Ingelheim
Group, pursuant to which the BI Joint Venture Affiliate was created to
manufacture cell culture products in a facility since constructed in Belgium,
and to distribute such products throughout the Territory. The Company and the
Boehringer Ingelheim Group each had a 50% interest in the BI Joint Venture
Affiliate, which also distributed certain products manufactured by the Company.
On April 30, 1995, the Company entered into an agreement (the "JV Sale
Agreement") with Boehringer Ingelheim, pursuant to which the Company sold to
Boehringer Ingelheim 100% of the stock of BWI, which held the Company's 50%
interest in the BI Joint Venture Affiliate, and 100% of the stock of
BioWhittaker France S.A.R.L. In connection with these transactions, the Company
entered into a five-year agreement with the BI Joint Venture Affiliate to
provide technical assistance and support for certain products and pursuant to
which the BI Joint Venture Affiliate will pay the Company $362,000 annually.
Under the terms of the JV Sale Agreement, the Company has the right to reacquire
on certain specified terms and conditions a 50% interest in the BI Joint Venture
Affiliate until the earliest of (i) April 28, 2000; (ii) the date nine months
after the BI Joint Venture Affiliate has demonstrated operating profit for three
consecutive fiscal quarters (iii) such time as the Company experiences a change
of control (such as will be the case upon consummation of the Offer) and
Boehringer Ingelheim exercises its resulting right to terminate the Company's
right to reacquire the interest, or (iv) such time as Boehringer Ingelheim
experiences a change of control and the Company exercises its resulting right to
terminate certain agreements and rights under the Joint Venture Agreement. The
BI Joint Venture Affiliate and certain other distribution affiliates of the
Boehringer Ingelheim Group (see "Other Relationships -- Distribution
Arrangements" below) distribute in the Territory cell culture products that are
manufactured in the Belgian facility using Company technology, as well as LAL
and cell culture products manufactured by the Company and sold to these parties
as distributors for the Company. In connection with the JV Sale Agreement, the
Company entered into an exclusive distribution arrangement with the BI Joint
Venture Affiliate and these other affiliates for Company products sold within
the Territory. The distribution arrangement is for a term ending two years after
the Company's option to purchase its interest in the BI Joint Venture Affiliate
ends. The BI Joint Venture Affiliate and the other affiliates agreed to purchase
certain minimum annual quantities of products from the Company. In fiscal 1996,
the Company sold products to the BI Joint Venture Affiliate in the aggregate
amount of $814,000.
12
<PAGE> 36
PURCHASE OF COMPANY COMMON STOCK
On October 31, 1991, the Company, pursuant to a stock purchase agreement
dated as of September 24, 1991 (the "Stock Purchase Agreement"), sold to Anasco,
a member of the Boehringer Ingelheim Group, a number of authorized but unissued
shares of Common Stock (the "Anasco Shares") that represented 19.9% of the
shares of the Common Stock outstanding after such issuance. The following is a
summary of certain provisions contained in the Stock Purchase Agreement. Unless
otherwise specified, the various covenants of the Company and Anasco in the
Stock Purchase Agreement described in the subsections "Limitations on Purchase
of Additional Shares," "Right to Maintain Percentage Voting Interest,"
"Limitation on Transfers of Anasco Shares; Right of First Refusal," "Board
Representation and Voting Arrangements," "Restrictions on Certain Other Actions"
and "Registration Rights" below will terminate upon the later of October 31,
1998 or the termination of the partnership under the Joint Venture Agreement,
unless earlier terminated pursuant to a decrease in Anasco's voting interest in
the Company to less than 5% of total voting power. The Company has waived its
rights under these provisions to the extent necessary to enable Anasco to enter
into the Stockholders Agreement in connection with the Offer and Merger.
Limitations on Purchase of Additional Shares. The Stock Purchase Agreement
provides that Anasco and its affiliates may purchase additional voting
securities; provided that if Anasco and its Affiliates intend to purchase 5% or
more of the Company's outstanding voting securities, Anasco will provide 15
days' prior written notice to the Company.
Right to Maintain Percentage Voting Interest. If at any time after October
31, 1991 voting securities are issued pursuant to the exercise of options that
were granted in connection with the Distribution in substitution for options to
purchase Whittaker Common Stock ("Substitute Options"), the Company will pay
Anasco an amount, in cash or voting securities (at the Company's election), or a
combination thereof, equal to 19.9% of the difference between the aggregate
market price (determined as provided in the Stock Purchase Agreement) of the net
voting securities issued by the Company pursuant to the exercise of the
Substitute Options and 19.9% of the aggregate exercise price of the Substitute
Options (or, in the case of an exercise by delivery of voting securities, the
aggregate par value thereof).
Limitation on Transfers of Shares; Right of First Refusal. The Stock
Purchase Agreement provides that Anasco and its affiliates may sell, pledge,
encumber, or otherwise transfer any of the Company's voting securities in
accordance with applicable law; provided that Anasco and its affiliates may not
sell, pledge, encumber or otherwise transfer such securities to an affiliate
unless the affiliate agrees to be bound by the terms of the Stock Purchase
Agreement. Under the terms of the Stock Purchase Agreement, Anasco and its
affiliates may not sell 5% or more of the Company's outstanding voting
securities in any transaction or series of related transactions without first
giving the Company an opportunity to purchase such securities at a price equal
to the price offered by the prospective purchaser. The Company has waived the
forgoing restrictions on Anasco and its affiliated in connection with the Offer
and the transactions contemplated by the Merger Agreement.
Board Representation and Voting Arrangements. The Stock Purchase Agreement
provides that for so long as Anasco and its affiliates hold voting securities of
the Company representing 10% or more of total voting power, in connection with
each annual meeting of stockholders of the Company Anasco shall be entitled to
designate a number of nominees for election to the Board of Directors, and to
fill vacancies in the Board, in proportion to the voting interest of Anasco and
its affiliates in the Company but shall not in any event designate nominees in
excess of such proportional number (unless such number is one). The Company has
agreed to include at least one director designated by Anasco on both the
Nominating Committee and the Compensation Committee of the Board of Directors.
Anasco has agreed that it will vote, or cause to be voted, all voting securities
owned by it and its affiliates for nominees to the Board who have been
recommended by the Board of Directors, and that its shares will be represented
at any stockholder meeting so that they may be counted for purposes of
determining a quorum.
Restrictions on Certain Other Actions. Pursuant to the Stock Purchase
Agreement, Anasco agreed that neither it nor its affiliates will (i) "solicit,"
or become a "participant" in any "solicitation" of, "proxies" (as such terms are
defined in Regulation 14A under the Exchange Act) from any holder of the
Company's voting
13
<PAGE> 37
securities in connection with any vote on any matter, or agree or announce its
intention to vote with any person undertaking a "solicitation;" (ii) form, join,
or in any way participate in a "group" (within the meaning of Section 13(d)(3)
of the Exchange Act) with respect to any voting securities; or (iii) grant any
proxies with respect to any voting securities to any person (other than members
of management of the Company or representatives of Anasco) or deposit any voting
securities in a voting trust or enter into any other arrangement or agreement
with respect to the voting thereof. The Company has waived the forgoing
restrictions on Anasco and its affiliated in connection with the Offer and the
transactions contemplated by the Merger Agreement.
Registration Rights. Pursuant to the terms of the Stock Purchase
Agreement, the Company also granted Anasco registration rights pursuant to which
the Company has agreed that, upon the request of Anasco at any time on or after
the third anniversary of the Distribution, the Company will register, on not
more than two occasions, the sale of the Anasco Shares then owned by Anasco
under the Securities Act of 1933, as amended, and applicable state securities
laws (a "Demand Registration"). The Company's obligation is subject to certain
limitations relating to the timing and size of the registration and other
similar matters. The Company is also obligated to offer Anasco the right to
include shares of Common Stock owned by it in certain registration statements
filed by the Company (a "Piggyback Registration"). The Company will indemnify
Anasco and its officers, directors, and controlling persons for securities law
liabilities in connection with any such offering, other than liabilities
resulting from information furnished in writing by Anasco. The Company is
obligated to pay all expenses incidental to the first Demand Registration, while
Anasco is obligated to pay all expenses incident to the second Demand
Registration. Anasco is required to pay only the additional incremental portion
of expenses incurred in connection with a Piggyback Registration.
Indemnification. The Stock Purchase Agreement provides that the Company
will indemnify Anasco for any damage, loss, liability, or expense of certain
minimum threshold amounts arising out of or based upon the inaccuracy of certain
representations or warranties or breaches of certain covenants contained in the
Stock Purchase Agreement. The indemnification obligations relating to tax
matters survive indefinitely. The maximum liability of the Company under the
indemnification provisions of the Stock Purchase Agreement is $23,000,000 and,
if the amount of damages exceeds $8,250,000, the Company has the option to
repurchase the Anasco Shares at Anasco's purchase price plus interest. Anasco
has agreed to indemnify the Company in an amount not to exceed $23,000,000 for
any damage, loss, liability, or expense in excess of certain threshold amounts
arising out of or based upon the inaccuracy of any Anasco representation or
warranty or breach of any Anasco covenant contained in the Stock Purchase
Agreement.
Parent Guaranties. In connection with the Stock Purchase Agreement,
Whittaker, former parent of the Company, and Boehringer Ingelheim, an affiliate
of Anasco, have entered into guaranties of certain obligations of their
respective affiliates. Whittaker has agreed to guarantee the performance of the
Company's indemnification obligations under the Stock Purchase Agreement (i)
within three months after a final determination of the Company's liability with
respect thereto and after written demand upon the Company for such performance
or (ii) immediately upon demand on Whittaker in the case of bankruptcy events
relating to the Company. Boehringer Ingelheim has guaranteed the performance by
Anasco of, among other things, Anasco's indemnification obligations under the
Stock Purchase Agreement and certain related agreements within three months
after a final determination of Anasco's liability with respect thereto and after
written demand upon Anasco for such performance.
OTHER RELATIONSHIPS -- DISTRIBUTION ARRANGEMENTS
Ingelheim Diagnostic Y Tecnologia, S.A., a member of the Boehringer
Ingelheim Group, is the exclusive distributor of certain of the Company's
products in Spain and Portugal. Sales by the Company to Ingelheim Diagnostic Y
Tecnologia, S.A. pursuant to such distribution arrangements aggregated
approximately $529,000 in fiscal 1996.
Bender Co. GmbH ("Bender"), a member of the Boehringer Ingelheim Group, is
the Company's exclusive distributor of certain of the Company's products in
Austria, and a non-exclusive distributor in certain East European countries and
the former Soviet Union. Sales by the Company to Bender pursuant to such
distribution arrangements aggregated approximately $38,000 in fiscal 1996.
14
<PAGE> 38
SERVA Feinbiochemica GmbH & Co. KG ("SERVA"), also a member of the
Boehringer Ingelheim Group, is the exclusive distributor of certain of the
Company's products in Germany and a non-exclusive distributor of certain of the
Company's products in certain East European countries and the former Soviet
Union. Sales by the Company to SERVA pursuant to such distribution arrangements
aggregated approximately $753,000 in fiscal 1996.
BioWhittaker France S.A.R.L., also a member of the Boehringer Ingelheim
Group, is the exclusive distributor of certain of the Company's products in
France. Sales by the Company to BioWhittaker France pursuant to such
distribution arrangements aggregated approximately $840,000 in fiscal 1996.
15
<PAGE> 39
ANNEX B
[LETTERHEAD OF ALEX. BROWN & SONS INCORPORATED]
August 22, 1997
Board of Directors
BioWhittaker, Inc.
8830 Biggs Ford Road
Walkersville, MD 21793
Members of the Board:
BioWhittaker, Inc. ("BioWhittaker"), Cambrex Corporation, a Delaware
corporation ("Cambrex") and BW Acquisition Corporation, a Delaware corporation
and wholly owned subsidiary of Cambrex ("Sub"), have proposed to enter into an
Agreement and Plan of Merger dated as of August 22, 1997 (the "Agreement").
Pursuant to the Agreement, Sub will commence a tender offer to purchase all
outstanding shares of the common stock, par value $0.01 per share, of
BioWhittaker (the "BioWhittaker Common Stock") at a purchase price of $11.625
per share, net to the seller in cash (the "Tender Offer"). The Agreement also
provides that, following such Tender Offer, Sub will be merged with and into
BioWhittaker (the "Merger" and, together with the Tender Offer, the
"Transaction") pursuant to which each outstanding share of BioWhittaker Common
Stock not previously tendered will be converted into the right to receive
$11.625 in cash. You have requested our opinion as to whether the cash
consideration to be received by the holders of BioWhittaker Common Stock (other
than Cambrex and its affiliates) in the Transaction is fair, from a financial
point of view, to such holders.
Alex. Brown & Sons Incorporated ("Alex. Brown"), as a customary part of its
investment banking business, is engaged in the valuation of businesses and their
securities in connection with mergers and acquisitions, negotiated
underwritings, private placements and valuations for estate, corporate and other
purposes. We have acted as financial advisor to the Board of Directors of
BioWhittaker in connection with the Transaction and will receive a fee for our
services, a significant portion of which is contingent upon the consummation of
the Transaction and a portion of which is payable upon the delivery of this
opinion. In the ordinary course of business, Alex. Brown may actively trade the
securities of both BioWhittaker and Cambrex of our own account and the account
of our customers and, accordingly, may at any time hold a long or short position
in securities of BioWhittaker and Cambrex.
In connection with this opinion, we have reviewed certain publicly
available financial information and other information concerning BioWhittaker
and certain internal analyses and other information furnished to us by
BioWhittaker. We have also held discussions with the members of the senior
managements of BioWhittaker and Cambrex regarding the business and prospects of
BioWhittaker. In addition, we have (i) reviewed the reported prices and trading
activity for BioWhittaker Common Stock, (ii) compared certain financial and
stock market information for BioWhittaker with similar information for certain
other companies whose securities are publicly traded, (iii) reviewed the
financial terms of certain recent business combinations which we deemed
comparable in whole or in part, (iv) reviewed the terms of the Agreement, and
(v) performed such other studies and analyses and considered such other factors
as we deemed appropriate.
We have not independently verified the information described above and for
purposes of this opinion have assumed the accuracy, completeness and fairness
thereof. With respect to the information relating to the prospects of
BioWhittaker, we have assumed that such information reflects the best currently
available judgments and estimates of the management of BioWhittaker as to the
likely future financial performance of BioWhittaker. In addition, we have not
made nor have we been furnished with an independent evaluation or appraisal of
the assets or liabilities of BioWhittaker. Our opinion is based on market,
economic and other conditions as they exist and can be evaluated as of the date
of this letter.
In arriving at our opinion, we were authorized to solicit, and did solicit,
interest from third parties with respect to the acquisition of BioWhittaker.
<PAGE> 40
Our advisory services and the opinion expressed herein were prepared for
the use of the Board of Directors of BioWhittaker and do not constitute a
recommendation to any stockholders as to whether or not any stockholder should
tender shares of BioWhittaker Common Stock in the Tender Offer or how such
stockholder should vote on the proposed Merger. We hereby consent to the
inclusion of this opinion in its entirety as an exhibit to the
Solicitation/Recommendation Statement of BioWhittaker in respect of the
Transaction.
Based upon and subject to the foregoing, it is our opinion that, as of the
date of this letter, the cash consideration to be received by the holders of
BioWhittaker Common Stock (other than Cambrex and its affiliates) in the
Transaction is fair, from a financial point of view, to such holders.
Very Truly Yours,
ALEX. BROWN & SONS INCORPORATED
<PAGE> 1
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(and Associated Rights)
of
BIOWHITTAKER, INC.
at
$11.625 NET PER SHARE
by
BW ACQUISITION CORPORATION
a wholly-owned subsidiary of the
CAMBREX CORPORATION
------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON THURSDAY, SEPTEMBER 25, 1997, UNLESS THE OFFER IS EXTENDED.
------------------------
THE BOARD OF DIRECTORS OF BIOWHITTAKER, INC. (THE "COMPANY") HAS UNANIMOUSLY
APPROVED THE MAKING OF THE OFFER AND THE MERGER (AS DEFINED HEREIN) AND
DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE
BEST INTERESTS OF, THE STOCKHOLDERS OF THE COMPANY AND UNANIMOUSLY RECOMMENDS
THAT STOCKHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES (AS
DEFINED HEREIN).
------------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER AT LEAST THAT
NUMBER OF SHARES WHICH, TOGETHER WITH THE OPTION SHARES (AS DEFINED HEREIN)
WHICH ARE SUBJECT TO THE STOCKHOLDERS AGREEMENT (AS DEFINED HEREIN), WOULD
REPRESENT IN EXCESS OF 50% OF ALL OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON
THE DATE OF PURCHASE AND (2) ANY WAITING PERIOD UNDER THE HART-SCOTT-RODINO
ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, AND THE REGULATIONS THEREUNDER
APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER HAVING EXPIRED OR
BEEN TERMINATED.
------------------------
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
shares of common stock of the Company, par value $0.01 per share (the "Common
Stock"), and associated rights to purchase Series A Participating Cumulative
Preferred Stock, par value $0.01 per share (together with the Common Stock, the
"Shares") issued pursuant to the Stockholder Protection Rights Agreement dated
as of January 20, 1995 between the Company and Bank of Boston, as Rights Agent,
as amended, should either (1) complete and sign the Letter of Transmittal or a
facsimile copy thereof in accordance with the instructions in the Letter of
Transmittal, have such stockholder's signature thereon guaranteed if required by
Instruction 1 to the Letter of Transmittal, mail or deliver the Letter of
Transmittal (or such facsimile), or, in the case of a book-entry transfer
effected pursuant to the procedure set forth in Section 2, an Agent's Message
(as defined herein), and any other required documents to the Depositary and
either deliver the certificates for such Shares to the Depositary along with the
Letter of Transmittal (or facsimile) or deliver such Shares pursuant to the
procedure for book-entry transfer set forth in Section 2 prior to the expiration
of the Offer or (2) request such stockholder's broker, dealer, bank, trust
company or other nominee to effect the transaction for such stockholder. A
stockholder having Shares registered in the name of a broker, dealer, bank,
trust company or other nominee must contact such broker, dealer, bank, trust
company or other nominee if such stockholder desires to tender such Shares.
A stockholder who desires to tender Shares and whose certificates for such
Shares are not immediately available or who cannot comply in a timely manner
with the procedure for book-entry transfer, or who cannot deliver all required
documents to the Depositary prior to the expiration of the Offer, may tender
such Shares by following the procedure for guaranteed delivery set forth in
Section 2.
Questions and requests for assistance or for additional copies of this Offer
to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Information Agent or to the Dealer Manager at their
respective addresses and telephone numbers set forth on the back cover of this
Offer to Purchase.
------------------------
THE DEALER MANAGER FOR THE OFFER IS:
SCHRODER & CO. INC.
AUGUST 28, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
INTRODUCTION.......................................................................... 1
THE TENDER OFFER...................................................................... 3
1. Terms of the Offer................................................................ 3
2. Procedure for Tendering Shares.................................................... 4
3. Withdrawal Rights................................................................. 7
4. Acceptance for Payment and Payment................................................ 7
5. Certain Federal Income Tax Consequences........................................... 9
6. Price Range of the Shares......................................................... 9
7. Purpose of the Offer; Plans for the Company; Effect of the Offer on the Market for
the Shares; Stock Quotation; Exchange Act Registration; Margin Regulations ....... 10
8. Certain Information Concerning the Company........................................ 11
9. Certain Information Concerning the Purchaser and Parent........................... 13
10. Source and Amount of Funds........................................................ 15
11. Contacts and Transactions with the Company; Background of the Offer............... 15
12. The Merger Agreement; The Stockholders Agreement.................................. 19
13. Dividends and Distributions....................................................... 26
14. Certain Conditions of the Offer................................................... 27
15. Certain Legal Matters............................................................. 29
16. Fees and Expenses................................................................. 31
17. Miscellaneous..................................................................... 32
Schedule 1 -- Directors and Executive Officers of Parent and the Purchaser............ S-1
</TABLE>
i
<PAGE> 3
To the Holders of Common Stock
of BioWhittaker, Inc.:
INTRODUCTION
BW Acquisition Corporation, a Delaware corporation (the "Purchaser"), which
is a wholly owned subsidiary of the Cambrex Corporation, a Delaware corporation
("Parent"), hereby offers to purchase all outstanding shares of Common Stock,
par value $0.01 per share (the "Common Stock"), and associated rights to
purchase Series A Participating Cumulative Preferred Stock, par value $0.01 per
share (the "Rights" and, together with the Common Stock, the "Shares"), issued
pursuant to the Stockholder Protection Rights Agreement dated as of January 20,
1995, between BioWhittaker, Inc., a Delaware corporation (the "Company") and
Bank of Boston, as Rights Agent, as amended (the "Rights Agreement"), of the
Company, at a price of $11.625 per Share, net to the seller in cash, without
interest thereon (the "Offer Price"), upon the terms and subject to the
conditions set forth in this Offer to Purchase and in the related Letter of
Transmittal (which, together with any amendments or supplements hereto or
thereto, collectively constitute the "Offer"). The Offer is being made pursuant
to the Agreement and Plan of Merger dated as of August 22, 1997 (the "Merger
Agreement"), among Parent, the Purchaser and the Company.
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer. The
Purchaser will pay all fees and expenses of Schroder & Co. Inc. ("Schroders"),
which is acting as Dealer Manager (the "Dealer Manager"), ChaseMellon
Shareholder Services L.L.C., which is acting as the Depositary (the
"Depositary"), and D.F. King & Co., Inc., which is acting as Information Agent
(the "Information Agent"), incurred in connection with the Offer. See Section
16.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MAKING
OF THE OFFER AND THE MERGER (AS DEFINED BELOW) AND DETERMINED THAT THE TERMS OF
THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE
STOCKHOLDERS OF THE COMPANY AND UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS OF THE
COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES. THE FACTORS CONSIDERED BY THE
BOARD OF DIRECTORS OF THE COMPANY IN ARRIVING AT ITS DECISION TO APPROVE THE
MAKING OF THE OFFER AND THE MERGER AND TO RECOMMEND THAT STOCKHOLDERS OF THE
COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES ARE DESCRIBED IN THE COMPANY'S
SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9.
ALEX. BROWN & SONS INCORPORATED, THE COMPANY'S FINANCIAL ADVISOR, HAS
DELIVERED TO THE BOARD OF DIRECTORS OF THE COMPANY A WRITTEN OPINION DATED
AUGUST 22, 1997 TO THE EFFECT THAT, AS OF THE DATE OF SUCH OPINION AND BASED
UPON AND SUBJECT TO CERTAIN MATTERS STATED THEREIN, THE $11.625 PER SHARE CASH
CONSIDERATION TO BE RECEIVED BY HOLDERS OF SHARES (OTHER THAN CAMBREX AND ITS
AFFILIATES) IN THE OFFER AND THE MERGER WAS FAIR, FROM A FINANCIAL POINT OF
VIEW, TO SUCH HOLDERS. SUCH OPINION IS SET FORTH IN FULL AS AN EXHIBIT TO THE
SCHEDULE 14D-9, WHICH IS BEING MAILED TO STOCKHOLDERS OF THE COMPANY HEREWITH
AND SHOULD BE READ CAREFULLY IN ITS ENTIRETY. THE OPINION OF ALEX. BROWN IS
DIRECTED TO THE BOARD OF DIRECTORS OF THE COMPANY AND RELATES TO THE FAIRNESS OF
THE CASH CONSIDERATION TO BE RECEIVED IN THE OFFER AND THE MERGER BY HOLDERS OF
SHARES (OTHER THAN CAMBREX AND ITS AFFILIATES) FROM A FINANCIAL POINT OF VIEW,
DOES NOT ADDRESS ANY OTHER ASPECT OF THE OFFER OR THE MERGER OR RELATED
TRANSACTIONS, AND IS NOT INTENDED TO CONSTITUTE, AND DOES NOT CONSTITUTE, A
RECOMMENDATION TO ANY STOCKHOLDER AS TO WHETHER SUCH STOCKHOLDER SHOULD TENDER
SHARES IN THE OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED IN SECTION
1) AT LEAST THAT NUMBER OF SHARES WHICH, TOGETHER WITH THE OPTION SHARES (AS
DEFINED HEREIN) WHICH ARE SUBJECT TO THE STOCKHOLDERS AGREEMENT (AS DEFINED
HEREIN), WOULD REPRESENT IN EXCESS OF 50% OF ALL OUTSTANDING SHARES DETERMINED
ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE (THE "MINIMUM CONDITION") AND
(II) ANY WAITING PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT
OF 1976, AS AMENDED, AND THE REGULATIONS THEREUNDER (THE "HSR ACT") APPLICABLE
TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER HAVING EXPIRED OR BEEN
TERMINATED (THE "HSR CONDITION"). THE PURCHASER RESERVES THE RIGHT (SUBJECT TO
THE APPLICABLE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION
(THE "COMMISSION")), WHICH IT PRESENTLY HAS NO INTENTION OF EXERCISING (AND
WHICH IT MAY NOT EXERCISE WITHOUT THE COMPANY'S WRITTEN CONSENT), TO WAIVE OR
REDUCE THE MINIMUM CONDITION AND TO ELECT TO PURCHASE, PURSUANT TO THE OFFER,
LESS THAN THE MINIMUM NUMBER OF SHARES WHICH WOULD OTHERWISE BE REQUIRED TO
SATISFY THE MINIMUM CONDITION. SEE SECTIONS 1 AND 14.
<PAGE> 4
The Company has informed the Purchaser that, as of August 27, 1997, there
were 10,881,210 Shares issued and outstanding and 1,071,388 Shares reserved for
issuance upon the exercise of outstanding options to purchase Shares ("Stock
Options"). As described below, there are 910,928 Option Shares (as defined
below) which are subject to the Stockholders Agreement. Accordingly, based on
the foregoing assumptions, the Minimum Condition will be satisfied if at least
5,065,372 Shares, or approximately 46.6% of the outstanding Shares as of August
27, 1997 are validly tendered and not withdrawn prior to the Expiration Date. If
the Minimum Condition is satisfied and the Purchaser accepts for payment Shares
tendered pursuant to the Offer, the Purchaser will be able to elect a majority
of the members of the Company's Board of Directors and to effect the Merger
without the affirmative vote of any other stockholder of the Company.
THE MERGER
Pursuant to the Merger Agreement, following the consummation of the Offer
and the satisfaction or waiver of certain conditions, the Purchaser will be
merged with and into the Company (the "Merger"), with the Company surviving the
Merger (as such, the "Surviving Corporation") as a wholly owned subsidiary of
Parent. In the Merger, each outstanding Share (other than Shares owned by the
Company, any subsidiary of the Company, Parent, the Purchaser or any other
subsidiary of Parent or by stockholders, if any, who are entitled to and who
properly exercise appraisal rights under Delaware law) will be converted into
the right to receive from the Surviving Corporation the Offer Price in cash,
without interest (the "Merger Consideration"). The Merger is subject to a number
of conditions, including approval by stockholders of the Company, if such
approval is required by applicable law. See Section 12.
THE RIGHTS
The Board of Directors of the Company has made all determinations and taken
all actions that are required so that the Rights will not become exercisable as
a result of the Offer and the Merger.
THE STOCKHOLDERS AGREEMENT
In connection with the execution of the Merger Agreement, the Purchaser and
Parent entered into two separate but substantially identical Stockholders
Agreements, each dated as of August 22, 1997 (collectively, the "Stockholders
Agreement"), with Anasco GmbH ("Anasco") on the one hand, and each of Joseph F.
Alibrandi, Noel L. Buterbaugh, Thomas R. Winkler, Philip L. Rohrer Jr., Leif
Olsen and F. Dudley Staples Jr. on the other (collectively, the "Selling
Stockholders"). Anasco is the Company's largest stockholder and the other
Selling Stockholders are directors and officers of the Company. Pursuant to the
Stockholders Agreement, the Selling Stockholders have agreed to tender their
shares in the Offer and have granted to the Purchaser an irrevocable option,
exercisable upon the occurrence of certain trigger events, to purchase the
Shares owned of record by the Selling Stockholders (including, in some cases
Shares underlying Stock Options (such Shares, the "Option Shares")) at a price
per Share equal to the Offer Price, in cash. Pursuant to the Stockholders
Agreement, the Selling Stockholders have also agreed that, among other things,
until the applicable termination date set forth in the Stockholders Agreement,
such Selling Stockholders will not transfer the Shares subject to the
Stockholders Agreement and will vote such Shares in favor of the Merger and
against certain competing transactions. An aggregate of 3,716,443 Shares are
subject to the Stockholders Agreement including 910,928 Option Shares,
representing 31.1% of the Shares that, as of August 27, 1997, were issued and
outstanding on a fully diluted basis according to the Company.
INTENTION OF COMPANY OFFICERS AND DIRECTORS TO TENDER
The Company has informed Parent and the Purchaser that, to the best
knowledge of the Company, all of the Company's officers and directors currently
intend to tender all Shares owned by them into the Offer. As described above,
certain of the Company's officers and directors are required under the
Stockholders Agreement to tender all Shares owned by them into the Offer.
The Merger Agreement and the Stockholders Agreement are more fully
described in Section 12.
Certain Federal income tax consequences of the sale of Shares pursuant to
the Offer and the conversion of Shares pursuant to the Merger are described in
Section 5.
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<PAGE> 5
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
THE TENDER OFFER
1. TERMS OF THE OFFER
Upon the terms and subject to the conditions of the Offer, the Purchaser
will accept for payment and pay for all Shares validly tendered prior to the
Expiration Date and not theretofore withdrawn in accordance with Section 3. The
term "Expiration Date" means 12:00 midnight, New York City time, on Thursday,
September 25, 1997, unless and until the Purchaser shall have extended the
period of time during which the Offer is open, in which event the term
"Expiration Date" shall mean the latest time and date at which the Offer, as so
extended by the Purchaser, will expire.
In addition, the Purchaser has agreed in the Merger Agreement that it will
not, without the written consent of the Company, (a) reduce the number of Shares
subject to the Offer, (b) reduce the Offer Price, (c) add to the conditions set
forth in Section 14 (the "Offer Conditions"), (d) modify the form of
consideration payable in the Offer, (e) increase the Minimum Condition or (f)
amend the Offer Conditions or any other term of the Offer in any manner
materially adverse to the holders of Shares.
Subject to the terms of the Merger Agreement and the applicable rules and
regulations of the Commission, the Purchaser reserves the right (but shall not
be obligated), at any time and from time to time, and regardless of whether or
not any of the events or facts set forth in Section 14 hereof shall have
occurred, (a) to extend the period of time during which the Offer is open, and
thereby delay acceptance for payment of and the payment for any Shares, by
giving oral or written notice of such extension to the Depositary and (b) to
amend the Offer in any other respect by giving oral or written notice of such
amendment to the Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE
PURCHASE PRICE FOR TENDERED SHARES, WHETHER OR NOT THE PURCHASER EXERCISES ITS
RIGHT TO EXTEND THE OFFER.
If by 12:00 midnight, New York City time, on Thursday, September 25, 1997
(or any date or time then set as the Expiration Date), any or all of the Offer
Conditions have not been satisfied or waived, the Purchaser reserves the right
(but shall not be obligated), subject to the terms and conditions contained in
the Merger Agreement and to the applicable rules and regulations of the
Commission, (a) to terminate the Offer and not accept for payment or pay for any
Shares and return all tendered Shares to tendering stockholders, (b) to waive
all the unsatisfied conditions and accept for payment and pay for all Shares
validly tendered prior to the Expiration Date and not theretofore withdrawn, (c)
to extend the Offer and, subject to the right of stockholders to withdraw Shares
until the Expiration Date, retain the Shares that have been tendered during the
period or periods for which the Offer is extended or (d) to amend the Offer.
There can be no assurance that the Purchaser will exercise its right to
extend the Offer. Any extension, waiver, amendment or termination will be
followed as promptly as practicable by a public announcement of such event. In
the case of an extension, Rule 14e-l(d) under the Exchange Act, requires that
the announcement be issued no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date in accordance
with the public announcement requirements of Rule 14d-4(c) under the Exchange
Act. Subject to applicable law (including Rules 14d-4(c) and 14d-6(d) under the
Exchange Act, which require that any material change in the information
published, sent or given to stockholders in connection with the Offer be
promptly disseminated to stockholders in a manner reasonably designed to inform
stockholders of such change) and without limiting the manner in which the
Purchaser may choose to make any public announcement, the Purchaser will not
have any obligation to publish, advertise or otherwise communicate any such
public announcement other than by making a release to the Dow Jones News
Service.
If the Purchaser extends the Offer or if the Purchaser is delayed in its
acceptance for payment of or payment (whether before or after its acceptance for
payment of Shares) for Shares or it is unable to pay for
3
<PAGE> 6
Shares pursuant to the Offer for any reason, then, without prejudice to the
Purchaser's rights under the Offer, the Depositary may retain tendered Shares on
behalf of the Purchaser, and such Shares may not be withdrawn except to the
extent tendering stockholders are entitled to withdrawal rights as described in
Section 3. However, the ability of the Purchaser to delay the payment for Shares
that the Purchaser has accepted for payment is limited by Rule 14e-l(c) under
the Exchange Act, which requires that a bidder pay the consideration offered or
return the securities deposited by or on behalf of holders of securities
promptly after the termination or withdrawal of such bidder's offer, and by the
terms of the Merger Agreement, which requires that the Purchaser pay for Shares
accepted for payment as soon as legally permissible.
If the Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer
(including a waiver of the Minimum Condition), the Purchaser will disseminate
additional tender offer materials and extend the Offer to the extent required by
Rules 14d-4(c), 14d-6(d) and 14e-1 under the Exchange Act. The minimum period
during which an offer must remain open following material changes in the terms
of the offer or information concerning the offer, other than a change in price
or a change in the percentage of securities sought, will depend upon the facts
and circumstances then existing, including the relative materiality of the
changed terms or information. With respect to a change in price or a change in
the percentage of securities sought, a minimum period of 10 business days is
generally required to allow for adequate dissemination to stockholders.
Consummation of the Offer is conditioned upon satisfaction of the Minimum
Condition, the HSR Condition and the other Offer Conditions. Subject to the
terms and conditions contained in the Merger Agreement, the Purchaser reserves
the right (but shall not be obligated) to waive any or all such conditions.
However, if the Purchaser waives or amends the Minimum Condition during the last
five business days during which the Offer is open, the Purchaser will be
required to extend the Expiration Date so that the Offer will remain open for at
least five business days after the announcement of such waiver or amendment is
first published, sent or given to holders of Shares and may also be required to
extend the Offer if other conditions are waived, depending upon the materiality
of the waiver.
The Company has provided the Purchaser with the Company's stockholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase, the related Letter of Transmittal and
other relevant materials will be mailed by the Purchaser to record holders of
Shares, and will be furnished to brokers, dealers, banks, trust companies and
similar persons whose names, or the names of whose nominees, appear on the
stockholder lists, or, if applicable, who are listed as participants in a
clearing agency's security position listing, for subsequent transmittal to
beneficial owners of Shares.
2. PROCEDURE FOR TENDERING SHARES
Valid Tender. For a stockholder validly to tender Shares pursuant to the
Offer, either (a) a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, together with any required signature guarantees,
or, in the case of a book-entry transfer, an Agent's Message (as defined below),
and any other required documents, must be received by the Depositary at one of
its addresses set forth on the back cover of this Offer to Purchase prior to the
Expiration Date and either certificates for tendered Shares must be received by
the Depositary at one of such addresses or such Shares must be delivered
pursuant to the procedures for book-entry transfer set forth below (and a
Book-Entry Confirmation (as defined below) received by the Depositary), in each
case prior to the Expiration Date, or (b) the tendering stockholder must comply
with the guaranteed delivery procedures set forth below.
The Depositary will establish accounts with respect to the Shares at The
Depository Trust Company, the Midwest Securities Trust Company and the
Philadelphia Depository Trust Company (the "Book-Entry Transfer Facilities") for
purposes of the Offer within two business days after the date of this Offer to
Purchase. Any financial institution that is a participant in any of the
Book-Entry Transfer Facilities' systems may make book-entry delivery of Shares
by causing a Book-Entry Transfer Facility to transfer such Shares into the
Depositary's account in accordance with such Book-Entry Transfer Facility's
procedures for such transfer. However, although delivery of Shares may be
effected through bookentry transfer into the Depositary's account at a
Book-Entry Transfer Facility, the Letter of Transmittal (or facsimile thereof),
4
<PAGE> 7
properly completed and duly executed, with any required signature guarantees, or
an Agent's Message, and any other required documents, must, in any case, be
transmitted to, and received by, the Depositary at one of its addresses set
forth on the back cover of this Offer to Purchase prior to the Expiration Date,
or the tendering stockholder must comply with the guaranteed delivery procedures
described below. The confirmation of a book-entry transfer of Shares into the
Depositary's account at a Book-Entry Transfer Facility as described above is
referred to herein as a "Book-Entry Confirmation". DELIVERY OF DOCUMENTS TO A
BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER
FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
The term "Agent's Message" means a message transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against the participant.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE
OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal (a) if the Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Section, includes any participant in
any of the Book-Entry Transfer Facilities' systems whose name appears on a
security position listing as the owner of the Shares) of Shares tendered
therewith and such registered holder has not completed either the box entitled
"Special Delivery Instructions" or the box entitled "Special Payment
Instructions" on the Letter of Transmittal or (b) if such Shares are tendered
for the account of a financial institution (including most commercial banks,
savings and loan associations and brokerage houses) that is a participant in the
Security Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(such participant, an "Eligible Institution"). In all other cases, all
signatures on the Letter of Transmittal must be guaranteed by an Eligible
Institution. See Instructions 1 and 5 to the Letter of Transmittal. If the
certificates for Shares are registered in the name of a person other than the
signer of the Letter of Transmittal, or if payment is to be made or certificates
for Shares not tendered or not accepted for payment are to be returned to a
person other than the registered holder of the certificates surrendered, the
tendered certificates must be endorsed or accompanied by appropriate stock
powers, in either case signed exactly as the name or names of the registered
holders or owners appear on the certificates, with the signatures on the
certificates or stock powers guaranteed as aforesaid. See Instructions 1 and 5
to the Letter of Transmittal.
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates for Shares are not immediately
available or the procedure for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date, such stockholder's tender may be
effected if all the following conditions are met:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, is received
by the Depositary, as provided below, prior to the Expiration Date; and
(iii) the certificates for all tendered Shares, in proper form for
transfer (or a Book-Entry Confirmation with respect to all such Shares),
together with a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees, or, in
the case of a book-entry transfer, an Agent's Message, and any other
required documents are received by the Depositary within three trading days
after the date of execution of such Notice of Guaranteed Delivery. A
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<PAGE> 8
"trading day" is any day on which the New York Stock Exchange, Inc. (the
"NYSE") is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by telegram, facsimile transmission or mail to the
Depositary and must include a guarantee by an Eligible Institution in the form
set forth in such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (a) certificates for (or a timely Book-Entry
Confirmation with respect to) such Shares, (b) a Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or, in the case of a book-entry transfer, an Agent's
Message, and (c) any other documents required by the Letter of Transmittal.
Accordingly, tendering stockholders may be paid at different times depending
upon when certificates for Shares or Book-Entry Confirmations with respect to
Shares are actually received by the Depositary. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE
PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
The valid tender of Shares pursuant to one of the procedures described
above will constitute a binding agreement between the tendering stockholder and
the Purchaser upon the terms and subject to the conditions of the Offer.
Appointment. By executing a Letter of Transmittal as set forth above, the
tendering stockholder will irrevocably appoint designees of the Purchaser as
such stockholder's attorneys-in-fact and proxies in the manner set forth in the
Letter of Transmittal, each with full power of substitution, to the full extent
of such stockholder's rights with respect to the Shares tendered by such
stockholder and accepted for payment by the Purchaser and with respect to any
and all other Shares or other securities or rights issued or issuable in respect
of such Shares on or after August 22, 1997. All such proxies will be considered
coupled with an interest in the tendered Shares. Such appointment will be
effective when, and only to the extent that, the Purchaser accepts for payment
Shares tendered by such stockholder as provided herein. Upon such appointment,
all prior powers of attorney, proxies and consents given by such stockholder
with respect to such Shares or other securities or rights will, without further
action, be revoked and no subsequent powers of attorney, proxies, consents or
revocations may be given (and, if given, will not be deemed effective). The
designees of the Purchaser will thereby be empowered to exercise all voting and
other rights with respect to such Shares and other securities or rights in
respect of any annual, special or adjourned meeting of the Company's
stockholders, actions by written consent in lieu of any such meeting or
otherwise, as they in their sole discretion deem proper. The Purchaser reserves
the right to require that, in order for Shares to be deemed validly tendered,
immediately upon the Purchaser's acceptance for payment of such Shares, the
Purchaser must be able to exercise full voting, consent and other rights with
respect to such Shares and other securities or rights, including voting at any
meeting of stockholders.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any tender of Shares
will be determined by the Purchaser in its sole discretion, which determination
will be final and binding. The Purchaser reserves the absolute right to reject
any or all tenders determined by it not to be in proper form or the acceptance
for payment of or payment for which may, in the opinion of the Purchaser's
counsel, be unlawful. The Purchaser also reserves the absolute right to waive
any defect or irregularity in the tender of any Shares of any particular
stockholder whether or not similar defects or irregularities are waived in the
case of other stockholders. No tender of Shares will be deemed to have been
validly made until all defects or irregularities relating thereto have been
cured or waived. None of the Purchaser, Parent, the Depositary, the Information
Agent, the Dealer Manager or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification. The Purchaser's interpretation of the
terms and conditions of the Offer (including the Letter of Transmittal and the
instructions thereto) will be final and binding.
Backup Withholding. In order to avoid "backup withholding" of Federal
income tax on payments of cash pursuant to the Offer, a stockholder surrendering
Shares in the Offer must, unless an exemption applies, provide the Depositary
with such stockholder's correct taxpayer identification number ("TIN") on a
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<PAGE> 9
Substitute Form W-9 and certify under penalties of perjury that such TIN is
correct and that such stockholder is not subject to backup withholding. If a
stockholder does not provide such stockholder's correct TIN or fails to provide
the certifications described above, the Internal Revenue Service (the "IRS") may
impose a penalty on such stockholder and any payment of cash to such stockholder
pursuant to the Offer may be subject to backup withholding of 31%. All
stockholders surrendering Shares pursuant to the Offer should complete and sign
the main signature form and the Substitute Form W-9 included as part of the
Letter of Transmittal to provide the information and certification necessary to
avoid backup withholding (unless an applicable exemption exists and is proved in
a manner satisfactory to the Purchaser and the Depositary). Certain stockholders
(including, among others, all corporations and certain foreign individuals and
entities) are not subject to backup withholding. Noncorporate foreign
stockholders should complete and sign the main signature form and a Form W-8,
Certificate of Foreign Status, a copy of which may be obtained from the
Depositary, in order to avoid backup withholding. See Instruction 9 to the
Letter of Transmittal.
3. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant to
the procedures set forth below at any time prior to the Expiration Date and,
unless theretofore accepted for payment and paid for by the Purchaser pursuant
to the Offer, may also be withdrawn at any time after Monday, October 27, 1997.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase and
must specify the name of the person having tendered the Shares to be withdrawn,
the number of Shares to be withdrawn and the name of the registered holder of
the Shares to be withdrawn, if different from the name of the person who
tendered the Shares. If certificates for Shares have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such
certificates, the serial numbers shown on such certificates must be submitted to
the Depositary and, unless such Shares have been tendered by an Eligible
Institution, the signatures on the notice of withdrawal must be guaranteed by an
Eligible Institution. If Shares have been delivered pursuant to the procedure
for book-entry transfer as set forth in Section 2, any notice of withdrawal must
also specify the name and number of the account at the appropriate Book-Entry
Transfer Facility to be credited with the withdrawn Shares and otherwise comply
with such Book-Entry Transfer Facility's procedures. Withdrawals of tenders of
Shares may not be rescinded, and any Shares properly withdrawn will thereafter
be deemed not validly tendered for purposes of the Offer. However, withdrawn
Shares may be retendered by again following one of the procedures described in
Section 2 at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser in its sole
discretion, which determination will be final and binding. None of the
Purchaser, Parent, the Depositary, the Information Agent, the Dealer Manager or
any other person will be under any duty to give notification of any defects or
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification.
4. ACCEPTANCE FOR PAYMENT AND PAYMENT
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), the Purchaser will accept for payment and will pay for all Shares
validly tendered prior to the Expiration Date and not properly withdrawn in
accordance with Section 3 promptly after the Expiration Date. All determinations
concerning the satisfaction of such terms and conditions will be within the
Purchaser's discretion, which determinations will be final and binding. See
Sections 1 and 14. The Purchaser expressly reserves the right to delay
acceptance for payment of or payment for Shares in order to comply in whole or
in part with any applicable law, including, without limitation, the HSR Act. Any
such delays will be effected in compliance with Rule 14e-l(c) under the Exchange
Act (relating to a bidder's obligation to pay for or return tendered securities
promptly after the termination or withdrawal of such bidder's offer).
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<PAGE> 10
The Company expects to file soon their Premerger Notification and Report
Forms with respect to the Offer under the HSR Act. The waiting period under the
HSR Act with respect to the Offer will expire at 11:59 p.m., New York City time,
on the 15th day after the date the Company's form is filed unless early
termination of the waiting period is granted. However, the Antitrust Division of
the Department of Justice (the "Antitrust Division") or the Federal Trade
Commission (the "FTC") may extend the waiting period by requesting additional
information or documentary material from the Company. If such a request is made,
such waiting period will expire at 11:59 p.m., New York City time, on the 10th
day after substantial compliance by the Company with such request. Thereafter,
the waiting period may only be extended by court order. The waiting period under
the HSR Act may be terminated prior to its expiration by the FTC and the
Antitrust Division. Purchaser will request early termination of the waiting
period, although there can be no assurance that this request will be granted.
Pursuant to the Merger Agreement, Purchaser may, but need not, extend the Offer
until the applicable waiting period under the HSR Act shall have expired or been
terminated. See Section 15 hereof for additional information concerning the HSR
Act and the applicability of the antitrust laws to the Offer.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (a) certificates for
(or a timely Book-Entry Confirmation with respect to) such Shares, (b) a Letter
of Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees, or, in the case of a book-entry
transfer, an Agent's Message, and (c) any other documents required by the Letter
of Transmittal. The per Share consideration paid to any stockholder pursuant to
the Offer will be the highest per Share consideration paid to any other
stockholder pursuant to the Offer.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment, and thereby purchased, Shares properly tendered to the Purchaser
and not withdrawn as, if and when the Purchaser gives oral or written notice to
the Depositary of the Purchaser's acceptance for payment of such Shares. Payment
for Shares accepted for payment pursuant to the Offer will be made by deposit of
the purchase price therefor with the Depositary, which will act as agent for
tendering stockholders for the purpose of receiving payment from the Purchaser
and transmitting payment to tendering stockholders. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE
PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
If the Purchaser is delayed in its acceptance for payment of or payment for
Shares or is unable to accept for payment or pay for Shares pursuant to the
Offer for any reason, then, without prejudice to the Purchaser's rights under
the Offer (but subject to compliance with Rule 14e-l(c) under the Exchange Act,
which requires that a tender offeror pay the consideration offered or return the
tendered securities promptly after termination or withdrawal of a tender offer,
and the terms of the Merger Agreement), the Depositary may, nevertheless, on
behalf of the Purchaser, retain tendered Shares, and such Shares may not be
withdrawn except to the extent tendering stockholders are entitled to exercise,
and duly exercise, withdrawal rights as described in Section 3.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, certificates for any such Shares will be returned, without expense to
the tendering stockholder (or, in the case of Shares delivered by book-entry
transfer of such Shares into the Depositary's account at a Book-Entry Transfer
Facility pursuant to the procedure set forth in Section 2, such Shares will be
credited to an account maintained at the appropriate Book-Entry Transfer
Facility), as promptly as practicable after the expiration or termination of the
Offer.
The Purchaser reserves the right to transfer or assign, in whole or from
time to time in part, to Parent, or to one or more direct or indirect wholly
owned subsidiaries of Parent, the right to purchase Shares tendered pursuant to
the Offer, but any such transfer or assignment will not relieve the Purchaser of
its obligations under the Offer and will in no way prejudice the rights of
tendering stockholders to receive payment for Shares validly tendered and
accepted for payment pursuant to the Offer.
8
<PAGE> 11
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The receipt of cash in exchange for Shares pursuant to the Offer or the
Merger (and the receipt of cash by a stockholder that exercises appraisal rights
in connection with the Merger under Delaware law) will be a taxable transaction
for Federal income tax purposes under the Internal Revenue Code of 1986, as
amended (the "Code"), and may also be a taxable transaction under applicable
state, local or foreign income or other tax laws. Generally, for Federal income
tax purposes, a tendering stockholder will recognize gain or loss equal to the
difference between the amount of cash received by the stockholder pursuant to
the Offer or the Merger (other than amounts received pursuant to a stockholder's
exercise of appraisal rights that are denominated as interest, which amounts
would be taxable as ordinary income) and the aggregate tax basis in the Shares
tendered by the stockholder and purchased pursuant to the Offer or converted in
the Merger, as the case may be. Gain or loss will be calculated separately for
each block of Shares tendered and purchased pursuant to the Offer or converted
in the Merger, as the case may be.
If Shares are held by a stockholder as capital assets, gain or loss
recognized by the stockholder will be capital gain or loss. Such capital gain or
loss will be long-term if such stockholder's holding period for the Shares
exceeds one year and short-term in all other cases. Individual stockholders will
generally be taxed on capital gain at a maximum Federal marginal rate of 20% if
such stockholder's holding period for the Shares exceeds eighteen months, 28% if
the holding period exceeds one year (but does not exceed eighteen months), and
39.6% if the holding period does not exceed one year. Corporate stockholders
will generally be taxed at a maximum Federal marginal rate of 35% with respect
to long-term capital gains. The ability of a stockholder (whether corporate or
individual) to use capital losses to offset ordinary income is limited.
A stockholder that tenders Shares may be subject to 31% backup withholding
unless the stockholder provides its TIN and certifies that such number is
correct or properly certifies that it is awaiting a TIN, or unless an exemption
applies. Exemptions are available for stockholders that are corporations and for
certain foreign individuals and entities. A stockholder that does not furnish a
required TIN may be subject to a penalty imposed by the IRS. See "Backup
Withholding" under Section 2.
If backup withholding applies to a stockholder, the Depositary is required
to withhold 31% from payments to such stockholder. Backup withholding is not an
additional tax. Rather, the amount of the backup withholding can be credited
against the Federal income tax liability of the person subject to the backup
withholding, provided that the required information is given to the IRS. If
backup withholding results in an overpayment of tax, a refund can be obtained by
the stockholder upon filing an income tax return.
THE FOREGOING DISCUSSION MAY NOT BE APPLICABLE WITH RESPECT TO SHARES
RECEIVED PURSUANT TO THE EXERCISE OF EMPLOYEE STOCK OPTIONS OR OTHERWISE AS
COMPENSATION OR WITH RESPECT TO HOLDERS OF SHARES WHO ARE SUBJECT TO SPECIAL TAX
TREATMENT UNDER THE CODE, SUCH AS NON-U.S. PERSONS, LIFE INSURANCE COMPANIES,
TAX-EXEMPT ORGANIZATIONS AND FINANCIAL INSTITUTIONS, AND MAY NOT APPLY TO OTHER
HOLDERS OF SHARES IN LIGHT OF THEIR INDIVIDUAL CIRCUMSTANCES. STOCKHOLDERS ARE
URGED TO CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE PARTICULAR TAX
CONSEQUENCES TO THEM (INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL
OR FOREIGN INCOME AND OTHER TAX LAWS) OF THE OFFER AND THE MERGER.
6. PRICE RANGE OF THE SHARES
The Shares are traded on the NYSE under the symbol BWI. The following table
sets forth, for each of the periods indicated, the high and low sales prices per
Share as reported by the NYSE and the Dow Jones News Retrieval Service.
9
<PAGE> 12
BIOWHITTAKER, INC.
<TABLE>
<CAPTION>
SALES PRICES
--------------
HIGH LOW
---- ---
<S> <C> <C>
PERIOD ENDING
1995
First Quarter.............................................................. $ 8 1/8 $ 6 1/4
Second Quarter............................................................. 8 1/2 7 1/8
Third Quarter.............................................................. 8 7
Fourth Quarter............................................................. 8 1/8 6 3/8
1996
First Quarter.............................................................. 8 1/2 7 1/4
Second Quarter............................................................. 8 7/8 7 3/4
Third Quarter.............................................................. 8 3/4 6 1/2
Fourth Quarter............................................................. 8 3/8 6 5/8
1997
First Quarter.............................................................. 9 1/2 7 7/8
Second Quarter............................................................. 11 7/16 7 3/4
Third Quarter (through August 27, 1997).................................... 11 9/16 10 1/8
</TABLE>
On August 22, 1997, the last full trading day before the public
announcement of the execution of the Merger Agreement, the last reported sales
price of the Shares on the NYSE was $10 3/8 per Share. On August 27, 1997, the
last full trading day before commencement of the Offer, the last reported sales
price of the Shares on the NYSE was $11 1/2 per Share. STOCKHOLDERS ARE URGED TO
OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES.
7. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY; EFFECT OF THE OFFER ON THE
MARKET FOR THE SHARES; STOCK QUOTATION; EXCHANGE ACT REGISTRATION; MARGIN
REGULATIONS
Purpose. The purpose of the Offer is to enable Parent to acquire control
of, and the entire equity interest in, the Company. The Offer, as the first step
in the acquisition of the Company, is intended to facilitate the acquisition of
all the Shares and to provide the stockholders of the Company with cash
consideration of $11.625 per Share for all of their shares at the earliest
possible time. The purpose of the Merger is to acquire all Shares not tendered
and purchased pursuant to the Offer.
Plans for the Company. It is expected that after consummation of the
Offer, no change will be made in the executive officers of the Company, but that
Parent will designate certain additional directors of the Company. Upon request
by Parent, the Company shall use its best efforts promptly, at the Company's
election, either to increase the size of its board or to secure the resignation
of such number of directors as is necessary to enable Parent's designees to be
elected to its board, and to cause Parent's designees to be so elected. Parent
has designated Peter Tracey, Peter E. Thauer, Douglas H. MacMillan, Ronald
Pizzo, Salvatore J. Guccione and Mary Fletcher to fill such vacancies. After the
Offer has been consummated, subject to the conditions set forth in the Merger
Agreement, it is anticipated that the Merger Agreement will be submitted to the
stockholders of the Company for approval. In the Merger Agreement, Parent and
the Purchaser have agreed to vote or cause to be voted all Shares owned by them
in favor of approval and adoption of the Merger Agreement. If after consummation
of the Offer the Purchaser holds 90% or more of the outstanding Shares, the
Purchaser intends to effect a "short-term merger" under the DGCL without a
meeting of, or action by, the stockholders of the Company.
Market for the Shares. The purchase of Shares pursuant to the Offer will
reduce the number of holders of Shares and the number of Shares that might
otherwise trade publicly and could adversely affect the liquidity and market
value of the remaining Shares held by the public.
10
<PAGE> 13
Stock Quotation. Depending upon the number of Shares purchased pursuant to
the Offer, the Shares may no longer meet the requirements of the NYSE for
continued listing. According to the NYSE's published guidelines, the NYSE would
consider delisting the Shares if, among other things, the number of record
holders of at least 100 Shares were to fall below 1,200, the number of publicly
held Shares (exclusive of management or other concentrated holdings) were to
fall below 600,000 or the aggregate market value of publicly held Shares were to
not exceed $5 million. According to the Company, as of August 27, 1997, there
were 10,881,210 Shares outstanding. If, as a result of the purchase of Shares
pursuant to the Offer or otherwise, the Shares no longer meet the requirements
of the NYSE for continued listing and the Shares are no longer listed, the
market for Shares could be adversely affected.
If the NYSE was to delist the Shares, it is possible that the Shares would
continue to trade on other securities exchanges or in the over-the-counter
market and that price quotations would be reported by such exchanges or through
the Nasdaq Stock Market or other sources. The extent of the public market for
the Shares and the availability of such quotations would, however, depend upon
the number of holders of Shares remaining at such time, the interests in
maintaining a market in Shares on the part of securities firms, the possible
termination of registration of the Shares under the Exchange Act, as described
below, and other factors.
Exchange Act Registration. The Shares are currently registered under the
Exchange Act. Registration of the Shares under the Exchange Act may be
terminated upon application of the Company to the Commission if the Shares are
neither listed on a national securities exchange nor held by 300 or more holders
of record. Termination of registration of the Shares under the Exchange Act
would substantially reduce the information required to be furnished by the
Company to its stockholders and to the Commission and would make certain
provisions of the Exchange Act no longer applicable to the Company, such as the
short-swing profit recovery provisions of Section 16(b) of the Exchange Act, the
requirement of furnishing a proxy statement pursuant to Section 14(a) of the
Exchange Act in connection with stockholders' meetings and the related
requirement of furnishing an annual report to stockholders and the requirements
of Rule 13e-3 under the Exchange Act with respect to "going private"
transactions. Furthermore, the ability of "affiliates" of the Company and
persons holding "restricted securities" of the Company to dispose of such
securities pursuant to Rule 144 or 144A promulgated under the Securities Act of
1933 may be impaired or eliminated. The Purchaser intends to seek to cause the
Company to apply for termination of registration of the Shares under the
Exchange Act as soon after the completion of the Offer as the requirements for
such termination are met.
If registration of the Shares is not terminated prior to the Merger, then
the Shares will be delisted from all stock exchanges and the registration of the
Shares under the Exchange Act will be terminated following the consummation of
the Merger.
Margin Regulations. The Shares are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which has the effect, among other things, of allowing
brokers to extend credit on the collateral of the Shares. Depending upon factors
similar to those described above regarding listing and market quotations, it is
possible that, following the Offer, the Shares would no longer constitute
"margin securities" for the purposes of the margin regulations of the Federal
Reserve Board and therefore could no longer be used as collateral for loans made
by brokers.
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is a Delaware corporation with its principal offices at 8830
Biggs Ford Road, Walkersville, Maryland 21793. The Company is a successor to a
Florida corporation founded in 1947. The Company was acquired by Whittaker
Corporation ("Whittaker") in 1969 and was reincorporated in Delaware in 1991.
Also in 1991, Whittaker distributed all of its interest in the Company, which
then represented 80.1% of the Common Stock of the Company, to its stockholders.
The Company is primarily engaged in the development, manufacture, and
marketing of cell culture and endotoxin detection products. The Company also
manufactures and sells a proprietary line of products used to diagnose allergies
and certain other clinical diagnostic testing products.
11
<PAGE> 14
Set forth below is certain selected consolidated financial information with
respect to the Company and its subsidiaries excerpted from the information
contained in the Company's Annual Report on Form 10-K for the fiscal year ended
October 31, 1996 (the "Company 1996 10-K"), and the Company's Quarterly Report
on Form 10-Q for the six-month period ended April 30, 1997 (the "Company 1997
10-Q"). More comprehensive financial information is included in the Company 1996
10-K, the Company 1997 10-Q and other documents filed by the Company with the
Commission, and the following summary is qualified in its entirety by reference
to the Company 1996 10-K, the Company 1997 10-Q and such other documents and all
the financial information (including any related notes) contained therein. The
Company 1996 10-K, the Company 1997 10-Q and such other documents should be
available for inspection and copies thereof should be obtainable in the manner
set forth below under "Available Information".
BIOWHITTAKER, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE AND SHARE DATA)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEARS ENDED OCTOBER 31, APRIL 30,
--------------------------- -----------------
1996 1995 1994 1997 1996
------- ------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Consolidated Statements of Income:
Sales.......................................... $51,459 $55,797 $54,651 $27,932 $25,471
Cost and expenses.............................. 43,330 47,249 46,815 23,360 21,930
Net income..................................... 833 6,986 3,534 2,967 (592)
Net income per share(1)........................ 0.08 0.64 0.32 0.27 (0.05)
Consolidated Balance Sheets:(2)
Total current assets........................... $33,477 $39,056 $30,556 $36,553 $34,372
Total assets................................... 61,155 59,801 60,248 64,602 64,091
Total current liabilities...................... 11,252 10,175 12,620 11,780 14,072
Total liabilities.............................. 14,364 13,843 21,127 14,835 18,729
Total stockholders' equity..................... 46,791 45,958 39,121 49,767 45,362
</TABLE>
- ---------------
(1) The per Share information was on the basis of 11,042,000, 10,971,000,
10,895,000, 10,920,000, and 10,759,000 Shares issued and outstanding as of
October 31, 1994, October 31, 1995, October 31, 1996, April 30, 1997 and
April 30, 1996, respectively. As of the date hereof, Parent and the
Purchaser understand from the Company that there are 10,881,210 Shares
issued and outstanding and 1,071,388 Shares reserved for issuance upon the
exercise of outstanding options to purchase Shares.
(2) As of end of period.
Certain Company Projections. During the course of discussions between
Parent and the Company, the Company provided Parent with certain non-public
business and financial information about the Company. This information included
forecasts (prepared during the spring of 1997) for the fiscal years ending
October 1997 and 1998 of (i) net sales of $56.7 million and $67.6 million,
respectively, (ii) earnings before interest and taxes of $10.0 million and $12.5
million, respectively, (iii) net earnings of $6.3 million and $8.1 million,
respectively, and (iv) net earnings per share of $0.60 and $0.73, respectively.
These forecasts have not been updated since July, 1997.
The projections do not give effect to the Offer or the Merger and were
predicated on certain assumptions, including the following: (i) the assumption
that the Company would continue as an independent, "stand alone" enterprise
during the entire period covered by the projections; (ii) assumptions relating
to anticipated levels of sales, including the introduction and market
penetration of various new and anticipated products, the expected number and
terms of new contracts and the renewal or termination of existing contracts,
anticipated selling prices for the Company's products, and access to markets and
distribution channels; (iii) assumptions
12
<PAGE> 15
relating to the Company's costs and expenses, including the availability and
cost of raw materials, levels of expenditures on capital items, selling, general
and administrative expenses and for research and development activities, and
effective tax rates; (iv) assumptions relating to the impact of governmental
regulation on the Company, including the timing of approval of the Company's
products and the continuation of current governmental regulation without changes
adverse to the Company's business; and (v) general economic factors such as
inflation, foreign currency rates and interest rates.
The Company does not as a matter of course make public any projections as
to future performance or earnings, and the projections set forth above are
included in this Offer to Purchase only because the information was provided to
Parent. The projections were not prepared with a view to public disclosure or
compliance with the published guidelines of the Commission or the guidelines
established by the American Institute of Certified Public Accountants regarding
projections or forecasts. The Company's internal operating projections are, in
general, prepared solely for internal use and capital budgeting and other
management decisions and are subjective in many respects and thus susceptible to
various interpretations and periodic revision based on actual experience and
business developments. The projections were based on a number of assumptions
that are beyond the control of the Company, the Purchaser or Parent or their
respective financial advisors, including economic forecasting (both general and
specific to the Company's business), which is inherently uncertain and
subjective. None of the Company, the Purchaser or Parent or their respective
financial advisors assumes any responsibility for the accuracy of any of the
projections. The inclusion of the foregoing projections should not be regarded
as an indication that the Company, the Purchaser or Parent or any other person
who received such information considers it an accurate prediction of future
events. Accordingly, there can be no assurance that the projected results will
be realized or that actual results will not be significantly higher or lower
than those reflected in the projections. Neither the Company nor Parent intends
to update, revise or correct such projections if they become inaccurate (even in
the short term).
Available Information. The Company is subject to the informational
requirements of the Exchange Act and, in accordance therewith, is required to
file reports relating to its business, financial condition and other matters.
Information as of particular dates concerning the Company's directors and
officers, their remuneration, stock options and other matters, the principal
holders of the Company's securities and any material interest of such persons in
transactions with the Company is disclosed in the Company's proxy statement
dated February 12, 1997, and filed with the Commission. Such information should
be available for inspection at the public reference facilities of the Commission
at 450 Fifth Street, N.W., Washington, DC 20549, and at the regional offices of
the Commission located at Seven World Trade Center, 13th Floor, New York, NY
10048 and Citicorp Center, 500 West Madison Street (Suite 1400), Chicago, IL
60661. Copies of such information should be obtainable, by mail, upon payment of
the Commission's customary charges, by writing to the Commission's principal
office at 450 Fifth Street, N.W., Washington, DC 20549. Such material should
also be available for inspection at the library of the NYSE, 20 Broad Street,
New York, NY 10005.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from or based upon
publicly available documents on file with the Commission and other publicly
available information. Although the Purchaser and Parent do not have any
knowledge that any such information is untrue, neither the Purchaser nor Parent
takes any responsibility for the accuracy or completeness of such information or
for any failure by the Company to disclose events that may have occurred and may
affect the significance or accuracy of any such information.
9. CERTAIN INFORMATION CONCERNING THE PURCHASER AND PARENT
The Purchaser, a Delaware corporation, which is a wholly owned subsidiary
of Parent, was organized to acquire the Company and has not conducted any
unrelated activities since its organization. The principal office of the
Purchaser is located at the principal office of Parent. All outstanding shares
of capital stock of the Purchaser are owned by Parent.
Parent, a Delaware corporation, with its principal executive office located
at One Meadowlands Plaza, East Rutherford, NJ 07073, manufactures and markets a
broad line of specialty chemicals and commodity chemical intermediates and also
manufactures chemicals to customer specifications. There are five product
13
<PAGE> 16
categories: pharmaceutical bulk actives; pharmaceutical intermediates; organic
intermediates; performance enhancers; and polymer systems. Currently Parent's
overall strategy for these categories is to focus on niche markets that have
global opportunities, build on strong customer relations to fill Parent's new
products' pipeline, and support the capital and state-of-the-art technology,
while being leaders in environmental, health and safety performance.
Set forth below is certain selected consolidated financial information with
respect to Parent and its subsidiaries excerpted from the information contained
in Parent's Annual Report on Form 10-K for the fiscal year ended December 31,
1996 (the "Parent 1996 10-K"), and Parent's Quarterly Report on Form 10-Q for
the six-month period ended June 30, 1997 (the "Parent 1997 10-Q"). More
comprehensive financial information is included in the Parent 1996 10-K, the
Parent 1997 10-Q and other documents filed by Parent with the Commission, and
the following summary is qualified in its entirety by reference to the Parent
1996 10-K, the Parent 1997 10-Q and such other documents and all the financial
information (including any related notes) contained therein. The Parent 1996
10-K, the Parent 1997 10-Q and such other documents should be available for
inspection and copies thereof should be obtainable in the manner set forth below
under "Available Information".
CAMBREX CORPORATION
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
---------------------------------- ---------------------
1996 1995 1994 1997 1996
-------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Consolidated Statements of Income:
Gross Sales....................... $369,479 $368,070 $249,683 $193,914 $189,686
Operating expenses................ 313,111 312,673 220,658 164,024 159,480
Net earnings...................... 28,225 19,670 11,126 16,300 13,725
Net earnings per share (fully
diluted)....................... 2.37 1.95 1.30 1.36 1.16
Consolidated Balance Sheets:(1)
Total current assets.............. $136,862 $144,136 $130,698 $139,494 $146,985
Total assets...................... 404,444 402,553 360,477 393,139 409,450
Total current liabilities......... 73,950 74,269 110,773 61,599 73,985
Total liabilities................. 175,399 213,069 258,511 167,032 200,881
Total stockholders' equity........ 229,045 189,484 101,966 226,107 208,573
</TABLE>
- ---------------
(1) At period end.
Available Information. Parent is subject to the informational requirements
of the Exchange Act and, in accordance therewith, is required to file reports
relating to its business, financial condition and other matters. Information as
of particular dates concerning Parent's directors and officers, their
remuneration, stock options and other matters, the principal holders of Parent's
securities and any material interest of such persons in transactions with Parent
is disclosed in Parent's proxy statement dated March 24, 1997, and filed with
the Commission. Such information may be inspected at the public reference
facilities of the Commission at 450 Fifth Street, N.W., Washington, DC 20549,
and at the regional offices of the Commission located at Seven World Trade
Center, 13th Floor, New York, NY 10048 and Citicorp Center, 500 West Madison
Street (Suite 1400), Chicago, IL 60661. Copies of such information should be
obtainable, by mail, upon payment of the Commission's customary charges, by
writing to the Commission's principal office at 450 Fifth Street, N.W.,
Washington, DC 20549. Such material should also be available for inspection at
the library of the NYSE, 20 Broad Street, New York, NY 10005.
14
<PAGE> 17
10. SOURCE AND AMOUNT OF FUNDS
The Purchaser estimates that the total amount of funds required to purchase
pursuant to the Offer the Shares that are outstanding on a fully diluted basis
and to consummate the Merger under the Merger Agreement and to pay fees and
expenses related to the Offer and the Merger will be approximately $141,000,000.
The Purchaser plans to obtain all funds needed for the Offer and the Merger from
the proceeds of a new revolving credit facility (the "Credit Facility")
consisting of up to $400,000,000 of senior financing for which Purchaser has
received a commitment from The Chase Manhattan Bank ("Chase") pursuant to a
commitment letter (the "Commitment Letter") dated August 20, 1997 among Chase,
Chase Securities, Inc., as advisor and arranger, and Parent. The Credit Facility
may also be used for the general corporate and working needs of Parent and its
Subsidiaries, to refinance certain indebtedness of Parent, and to fund future
acquisitions.
The obligation of Chase to provide the Credit Facility and the initial
extension of credit is subject to certain conditions, including, but not limited
to, there not occurring or becoming known to Chase any material adverse
condition or material adverse change in or affecting the business, operations,
property, condition (financial or otherwise) or prospects of Parent and its
subsidiaries, taken as a whole. The definitive credit agreement for the Credit
Facility is expected to provide for customary representations, warranties and
affirmative covenants. The definitive credit agreement will also provide for
customary negative and financial covenants including (a) limitations on
additional indebtedness, (b) limitations on dividends and similar distributions,
(c) limitations on liens and encumbrances, (d) limitations on asset dispositions
and similar transfers, (e) limitations on investments, loans and advances, (f)
limitations on mergers, consolidations and similar combinations, (g) limitations
on transactions with affiliates, (h) limitations on negative pledge clauses, (i)
limitations on sale and leasebacks, (j) limitations on changes in fiscal year,
(k) limitations on changes in lines of business, and (l) compliance with
financial ratios.
The loans under the Credit Facility will bear interest at Parent's option
either at (a) Chase's alternative base rate or (b) a reserve-adjusted LIBO rate,
plus, in each case, a margin determined by Parent's leverage ratio. The Credit
Facility will (a) be secured by a lien on 65% of the capital stock of Parent's
first-time foreign subsidiaries and (b) be guaranteed by Parent's domestic
subsidiaries.
Although Purchaser expects that the Credit Facility will be available to
provide funds in accordance with their respective terms, there can be no
assurance that the Credit Facility will be consummated. Nonetheless,
consummation of the Credit Facility is not a condition to consummation of the
transactions contemplated by the Merger Agreement.
A copy of the Commitment Letter has been filed as an Exhibit to the
Schedule 14D-1 and the foregoing summary is qualified in its entirety by
reference to such Exhibit.
11. CONTACTS AND TRANSACTIONS WITH THE COMPANY; BACKGROUND OF THE OFFER
Background of the Offer
In March, 1997, Parent was contacted by Alex. Brown & Sons Incorporated
("Alex. Brown"), the investment bankers for the Company, as to whether Parent
would be interested in exploring the possibility of acquiring the Company. At
that time, Parent was advised that it was one of several parties that was being
contacted as part of the Company's previously announced decision to consider
various strategic alternatives. On March 20, 1997, following Parent's expression
of interest in participating in such process, Parent executed a confidentiality
and standstill agreement with the Company. Parent was then provided with certain
confidential information concerning the Company and was asked to indicate, by
mid-May 1997, its level of interest in pursuing an acquisition of the Company.
On April 17, 1997, Parent indicated to Alex. Brown in writing that it was
making a non-binding offer in the range of $100 million to $120 million (or
$9.00 to $11.25 per Share) to purchase the Company subject, among other things,
to negotiation of definitive agreements relating to the proposed transaction and
satisfactory completion of due diligence. Thereafter, representatives of Parent
visited the Company's offices on May 19, 1997, and received a presentation about
the Company from the Company's senior management.
15
<PAGE> 18
In May, 1997, Parent was notified by the Company that based on such
preliminary indication of interest, it was one of several parties that had been
invited to conduct further due diligence of the Company. Parent was also advised
that it should submit its final expression of interest by no later than July 1,
1997.
On June 10, 1997, the Company's Chief Executive Officer met informally with
the Chairman of the Board and the Chief Executive Officer of Parent and
discussed whether the two companies were strategically compatible. On June 12
and June 24, 1997, representatives of Parent visited the Company's headquarters
to conduct further due diligence.
On July 1, 1997, Parent made a proposal to acquire the Company for $120
million subject, among other things, to negotiation and execution of definitive
agreements relating to the proposed acquisition and requested that the Company
enter into an exclusive negotiating period through August 31, 1997. Although the
Company refused to grant Parent's request for an exclusive negotiating period,
discussions concerning Parent's proposal continued during the early part of
July.
On July 11, 1997, the Company's Chief Executive Officer and a
representative of Alex. Brown met with the President and other members of senior
management of Parent and representatives of Schroders, Parent's investment
banking firm. As a result of those negotiations, Parent notified the Company
that it was prepared to negotiate to acquire the Company at a price of $11.625
per share, subject to completing due diligence, negotiating the terms of an
acceptable agreement and satisfactory discussions with certain key executives of
the Company concerning their role with the Company following any such
acquisition.
On July 22, 1997, the Company received from Parent's counsel an initial
draft of the Merger Agreement, which contemplated, among other things, the
receipt of stockholder agreements from Anasco (which is an affiliate of
Boehringer Ingelheim GmbH ("Boehringer Ingelheim")) and certain directors and
officers of the Company. Counsel for the companies then began negotiating the
terms of the proposed Merger Agreement and related documents.
On July 24, 1997, Parent's Board of Directors met to consider Parent's
acquisition of the Company. Representatives of the Company attended a portion of
such meeting and made a presentation about, and answered questions from the
Board concerning, the Company. At such meeting, Parent also received an opinion
from Schroders to the effect that, as of the date of such opinion and based on
certain matters stated therein, the consideration to be paid by Parent was fair,
from a financial point of view, to the stockholders of the Parent. After
discussions, the Board of Parent then unanimously approved Parent's acquisition
of the Company on substantially the terms presented at the meeting and reflected
in the Merger Agreement, with such changes thereto as might thereafter be
negotiated by Parent's senior management team.
On July 25, 1997, a representative of Boehringer Ingelheim wrote a letter
to Parent stating that Boehringer Ingelheim would not be able to respond
immediately to Parent's request for a stockholder agreement binding on Anasco
until after it had reviewed the implications of such an agreement with its legal
and financial advisors. The letter stated that Boehringer Ingelheim was also
considering the suitability of Parent as a partner in light of the commercial
arrangements between the Company and a European company in which the Company
previously owned a 50% interest (the "BI Joint Venture") and Parent's future
intentions in this regard.
Counsel for the Company and for Parent continued to negotiate provisions of
the proposed Merger Agreement, including the conditions for termination by
Parent; the effect of any such termination, including the size of any
termination fee and the payment of Parent's expenses; and the circumstances
under which the Company could entertain alternative acquisition proposals.
During the course of these negotiations, Parent converted the structure of the
transaction to a tender offer, followed by a merger, and provided a new draft of
the agreement reflecting such changes for the Company and its counsel to
consider.
During the early part of the week of July 28th, Parent and its
representatives were advised that the Company's Board of Directors would meet on
the afternoon of July 30th to consider Parent's proposal, including the terms of
the proposed Merger Agreement.
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On July 30, 1997, following the conclusion of the Company's Board meeting,
Debevoise & Plimpton, Parent's legal advisers, were contacted by the Company's
legal and financial advisers. They were told that although the Company's Board
viewed favorably a transaction with Parent at $11.625 per share, the Board was
not prepared to go forward unless several issues were resolved to its
satisfaction. These included whether the Company would be obligated to reimburse
Parent's expenses in the event of termination of the Merger Agreement, the
treatment of certain employee benefit plans, including confirmation of Parent's
express assumption of the Company's existing Change of Control Agreements with
certain of its senior employees; the conditions to consummation of the Merger
and the tender offer; the scope of the proposed stockholder agreements; the
duration of non-compete agreements to be signed by certain of the Company's
executive officers in connection with the acquisition of the Company by Parent;
and the circumstances under which the Company could entertain an alternative
acquisition proposal following execution of the Merger Agreement. Following
discussions with its legal and financial advisors, the Executive Vice President
of Parent telephoned the Chief Executive Officer of the Company to state that
Parent was unwilling to accede to the Company's position on these issues and
that Parent was therefore deferring further negotiations. Counsel for the
Company sent a revised draft of the agreement to counsel for Parent that
evening, reflecting among other things, the Board's position on these issues.
Thereafter, Parent authorized Schroders to contact Alex. Brown to further
clarify Parent's position with respect to the various issues raised by the
Company. In discussions with Alex. Brown, Schroders stated that Parent would not
pursue the transaction without stockholder agreements from Anasco and certain
officers and directors of the Company in order to assure these parties' support
of the transaction and reiterated that Parent was unwilling to accede to the
other requests for modification of the proposed transaction made by the Company.
During the next week, in conversations between management of the Company
and Parent and their respective legal and financial advisors, the Company
indicated that the officers and directors identified by Parent would be willing
to execute stockholder agreements and that the management stockholders would be
willing to execute non-competition agreements on substantially the terms sought
by Parent. They further indicated that although Anasco continued to object to
certain terms of the proposed stockholder agreement, including the proposed
trigger events and the conditions to termination of the agreement, Anasco would
agree to participate in additional discussions to reach agreement regarding
these issues.
Following these discussions, Parent authorized its financial and legal
advisors to begin negotiations with the Company's advisors. In a conference call
on August 11, 1997, Schroders and Debevoise informed the Company's legal and
financial advisors that Parent would be willing to modify its positions with
respect to certain of the open issues, but would not go forward without a
stockholder agreement from Anasco on the terms previously proposed by Parent.
Over the next several days, representatives of Parent and the Company held
a number of discussions with representatives of Boehringer Ingelheim concerning
the terms of the stockholder agreement, including the proposed trigger events
and whether Parent would receive the spread between a superior proposal and
Parent's proposed purchase price for the Shares in the event a superior
transaction was consummated by a third party.
During the course of discussions with Boehringer Ingelheim concerning the
stockholder agreement, Parent, the Company and their advisors continued
negotiation of the terms of the Merger Agreement. On August 14, 1997 Boehringer
Ingelheim indicated its tentative agreement to the terms of the stockholder
agreement proposed by Parent and authorized its counsel to finalize the
definitive agreement with counsel for Parent.
Over the next few days, counsel for the parties continued negotiations and
preparation of the Merger Agreement and related documents. On August 21, 1997,
Parent was advised by representatives of the Company that the Company's Board
had approved the proposed transaction subject to resolution of certain remaining
issues in the Merger Agreement and receipt of a fairness opinion of Alex. Brown,
the substance of which had been reviewed with the Board.
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Following resolution of the outstanding issues during the course of the
following day, the parties executed and delivered the Merger Agreement, the
stockholders agreements and the related agreements.
Employment Letters
Certain senior executives of the Company and Noel L. Buterbaugh, the
President and Chief Executive Officer of the Company (each, a "Senior Executive"
and, collectively, the "Senior Executives"), have entered into letter agreements
(each an "Employment Letter" and, collectively, the "Employment Letters") with
Parent concerning their respective employment relationships following completion
of the acquisition of the Company by Parent. Each of the Employment Letters
provides for (i) annual salary at a stated rate, subject to annual review; (ii)
participation in, and receipt of bonuses through, Parent's Earnings Improvement
Program, with 1998 bonuses at least equal to the Senior Executive's bonus target
award under the Company's 1997 Management Incentive Compensation Plan; (iii) the
grant of options pursuant to Parent's 1996 Performance Stock Option Plan; (iv)
continued participation in and receipt of benefits under existing welfare
benefit plans (including medical, prescription, dental, disability, life
insurance and similar plans) or similar plans of Parent which, in the aggregate
will not be less favorable than existing plans; (v) continued accrual of
benefits under the Company's defined contribution plans; and (vi) continuation
of reasonable fringe benefits. In addition, each of the Employment Letters also
provides that upon any termination of the Senior Executive's employment by
Parent (not including death or disability) other than for cause, the Senior
Executive is entitled to a severance payment equal to his monthly base salary
for up to 12 months from the date of separation or until he secures other
employment, whichever occurs first.
The Employment Letters also contain certain non-competition and
non-solicitation provisions applicable for a period of two years following the
date of termination of each Senior Executive's employment by the Parent for any
reason.
Forms of the Employment Letters have been filed as Exhibits to the Schedule
14D-1 and the foregoing summary is qualified in its entirety by reference to
such Exhibit.
Other Arrangements
Except as described in this Offer to Purchase (including Schedule 1
hereto), neither the Purchaser nor Parent nor, to the best knowledge of the
Purchaser and Parent, any of the persons listed in Schedule 1 hereto, nor any
associate or majority-owned subsidiary of the Purchaser, Parent nor any of the
persons so listed, beneficially owns any equity security of the Company, and
neither the Purchaser nor Parent, nor, to the best knowledge of the Purchaser
and Parent, any of the other persons referred to above, or any of the respective
directors, executive officers or subsidiaries of any of the foregoing, has
effected any transaction in any equity security of the Company during the past
60 days.
Except as described in this Offer to Purchase, as of the date hereof (a)
there have not been any contacts, transactions or negotiations between the
Purchaser and Parent, any of Parent's subsidiaries or, to the best knowledge of
the Purchaser and Parent, any of the persons listed in Schedule 1 hereto, on the
one hand, and the Company or any of its directors, officers or affiliates, on
the other hand, that are required to be disclosed pursuant to the rules and
regulations of the Commission and (b) neither the Purchaser nor Parent nor, to
the best knowledge of the Purchaser and Parent, any of the persons listed in
Schedule 1 hereto has any contract, arrangement, understanding or relationship
with any person with respect to any securities of the Company.
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12. THE MERGER AGREEMENT; THE STOCKHOLDERS AGREEMENT
The following is a summary of certain provisions of the Merger Agreement
and other agreements, copies of which have been filed with the Commission as
Exhibits to the Schedule 14D-1 relating to the Offer and are incorporated herein
by reference. Such summaries are qualified in their entirety by reference to the
text of such agreements.
The Merger Agreement
The Merger Agreement provides that following the satisfaction or waiver of
the conditions described below under "Conditions to the Merger", the Purchaser
will be merged with and into the Company, and each then outstanding Share (other
than Shares owned by the Company, any subsidiary of the Company, Parent, the
Purchaser, any other subsidiary of Parent or by stockholders, if any, who are
entitled to and who properly exercise appraisal rights under Delaware law) will
be converted into the right to receive an amount in cash equal to the price per
Share paid pursuant to the Offer.
Vote Required To Approve Merger. The Delaware General Corporation Law (the
"DGCL") requires, among other things, that the adoption of any plan of merger or
consolidation of the Company must be approved by the Board of Directors and
generally by the holders of the Company's outstanding voting securities. The
Board of Directors of the Company has approved the making of the Offer and the
Merger; consequently, the only additional action of the Company that may be
necessary to effect the Merger is approval by the Company's stockholders if the
"short-form" merger procedure described below is not available. Under the DGCL,
the affirmative vote of holders of a majority of the voting power of the then
outstanding Shares (including any Shares owned by the Purchaser) is generally
required to approve the Merger. If the Purchaser acquires, through the Offer,
the Stockholders Agreement or otherwise, a majority of the voting power of the
outstanding Shares (which would be the case if the Minimum Condition were
satisfied and the Purchaser were to accept for payment Shares tendered pursuant
to the Offer and to exercise its option under the Stockholders Agreement to
acquire the Option Shares), it would have sufficient voting power to effect the
Merger without the vote of any other stockholder of the Company.
Under the DGCL, if a corporation owns 90% or more of each outstanding class
of capital stock of another corporation, it can effect a "short-form" merger
with such corporation without prior notice to, or any other action by, any other
stockholder of such corporation. As a result, assuming no Stock Options are
exercised following August 22, 1997, if the Purchaser were to acquire ownership
of 9,793,089 Shares pursuant to the Offer, the Purchaser would own more than 90%
of the only class of capital stock of the Company then outstanding and would be
able to effect the Merger pursuant to the "short-form" merger provisions of the
DGCL. See Section 15.
Conditions to the Merger. The Merger Agreement provides that the
obligations of Parent, the Purchaser and the Company to consummate the Merger
are subject to the satisfaction of certain conditions, including the following:
(a) the Purchaser shall have purchased all Shares duly tendered and not
withdrawn pursuant to the terms of the Offer and subject to the terms thereof;
provided that the obligation of the Parent and the Purchaser to effect the
Merger shall not be conditioned on the fulfillment of such condition if the
failure of the Purchaser to purchase the Shares pursuant to the Offer shall have
constituted a breach of the Offer or of the Merger Agreement; (b) the
consummation of the Merger shall not be precluded by any order, decree or
injunction of a court of competent jurisdiction (each party having agreed to use
its best efforts to have any such order reversed or injunction lifted), and
there shall not have been any action taken or any law enacted, promulgated or
deemed applicable to the Merger by any court, governmental agency or regulatory
or administrative authority, foreign or domestic (each, a "Governmental Entity")
that makes consummation of the Merger illegal; (c) if required by Certificate of
Incorporation and By-Laws of the Company and the DGCL, the Merger Agreement
shall have been approved and adopted by the affirmative vote of the holders of
the requisite number of Shares in accordance with the Certificate of
Incorporation and By-Laws of the Company and the DGCL; and (d) any applicable
waiting period under the HSR Act shall have expired or been terminated. The
Merger Agreement also provides that the obligations of Parent and the Purchaser
to consummate the Merger are subject to the following additional conditions: (a)
the Company shall have
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performed all of its material agreements and covenants contained in the Merger
Agreement required to be performed on or prior to the Effective Time and the
representations and warranties of the Company contained in the Merger Agreement
shall be true and correct in all material respects on and as of (i) the date
made and (ii) except in the case of representations and warranties expressly
made solely with reference to a particular date, the effective time of the
Merger and (b) the Company shall not have received notice from the holder or
holders of more than 10% of the outstanding Shares, determined on a fully
diluted basis, that such holder or holders have exercised or intend to exercise
its or their appraisal rights under Section 262 of the DGCL.
As used herein, "Material Adverse Effect" means, with respect to any person
or entity, a material adverse effect on the business, assets, liabilities,
operations or condition (financial or otherwise) of such person or entity and
its subsidiaries, taken as a whole.
Termination of the Merger Agreement. The Merger Agreement may be
terminated at any time prior to the effective time of the Merger, whether prior
to or after approval of the terms of the Merger Agreement by the stockholders of
the Company:
(1) by the mutual written consent of Parent, the Purchaser and the
Company;
(2) by either the Parent or the Company if, on or before October 31,
1997 and without fault of such terminating party, Purchaser shall not have
purchased in the Offer such number of Shares which, together with the
number of Option Shares subject to the Stockholders Agreement, represents
in excess of 50% of the Shares on a fully diluted basis, or the Merger
shall not have been consummated on or before November 30, 1997, provided,
however, that the right to terminate the Merger Agreement is not available
to any party whose failure to fulfill any obligation under the Merger
Agreement has been the cause of, or resulted in, the failure of the Offer
or the Merger to have occurred on or before the aforesaid date;
(3) by either Parent or the Company if the Offer shall expire or
terminate in accordance with its terms without any Shares having been
purchased thereunder and, in the case of termination by the Parent, the
Purchaser shall not have been required by the terms of the Offer or the
Merger Agreement to purchase any Shares pursuant to the Offer;
(4) by the Company if the Purchaser shall not timely commence the
Offer as provided in the Merger Agreement;
(5) if approval by the Company's stockholders is required by law, by
either the Purchaser or the Company if, upon a vote of the Company's
stockholders, such stockholder approval shall not have been obtained;
(6) unilaterally by the Purchaser or the Company (i) if the other
fails to perform any material covenant or agreement in any material respect
in the Merger Agreement, and does not cure the failure in all material
respects within 30 business days after the terminating party delivers
written notice of the alleged failure or (ii) if any condition to the
obligations of that party is not satisfied (other than by reason of a
breach by that party of its obligations hereunder), and it reasonably
appears that the condition cannot be satisfied prior to November 30, 1997;
(7) by either the Purchaser or the Company if either is prohibited by
an order or injunction (other than an order or injunction on a temporary or
preliminary basis) of a court of competent jurisdiction or other
Governmental Entity from consummating the Offer or the Merger and all means
of appeal and all appeals from such order or injunction have been finally
exhausted;
(8) by the Purchaser if the Board of Directors of the Company shall
have withdrawn or modified, or resolved to withdraw or modify, in any
manner which is adverse to Parent or the Purchaser, its recommendation or
approval of the Merger or the Merger Agreement; provided, however, that
such a termination shall not become effective if, as a result of the
Company's receipt of a proposal for an Acquisition Transaction (as defined
under "Takeover Proposals") from a third party, the Company, in accordance
with the Merger Agreement, withdraws or modifies, or resolves to withdraw
or modify, in any manner which is adverse to Parent or the Purchaser, its
recommendation or approval of the Merger or the
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Merger Agreement and if within ten business days of taking and disclosing
to its stockholders the aforementioned position the Company publicly
reconfirms its recommendation of the transactions contemplated by the
Merger Agreement; or
(9) by the Company if (i) the Board of Directors of the Company shall
have determined in good faith, based on the advice of outside counsel, that
it is necessary, in order to comply with its fiduciary duties to the
Company's stockholders under applicable law, to terminate the Merger
Agreement to enter into an agreement with respect to or to consummate a
transaction constituting a Superior Proposal (as defined under "Takeover
Proposals"), (ii) the Company shall have given notice to the Purchaser
advising the Purchaser that the Company has received a Superior Proposal
from a third party, specifying the material terms and conditions (including
the identity of the third party) and that the Company intends to terminate
the Merger Agreement, (iii) either (A) the Purchaser shall not have revised
its proposal for an Acquisition Transaction within two business days from
the time on which such notice is deemed to have been given to Parent, or
(B) if the Purchaser within such period shall have revised its proposal for
an Acquisition Transaction, the Board of Directors of the Company, after
receiving advice from the Company's financial advisor, shall have
determined in its good faith reasonable judgment that the third party's
proposal for an Acquisition Transaction is superior to Parent's revised
proposal for an Acquisition Transaction and (iv) the Company, at the time
of such termination, pays the Expenses and the Termination Fee (each as
defined under "Fees and Expenses" below).
Takeover Proposals. The Merger Agreement provides that the Company shall
not, shall not permit any of its subsidiaries to, and shall not authorize or
permit any officer, director or employee or any investment banker, attorney,
accountant or other advisor or representative of the Company or any of its
subsidiaries to, directly or indirectly, except as otherwise described in this
Section or "Takeover Proposals" (i) initiate, solicit, negotiate, encourage, or
provide confidential information to facilitate any proposal or offer to acquire
all or any substantial part of the business and properties of the Company and
its subsidiaries, taken as a whole, or beneficial ownership (as determined
pursuant to Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the
capital stock of the Company, whether by merger, purchase of assets, tender
offer or otherwise, whether for cash, securities or any other consideration or
combination thereof (such transactions being referred to herein as "Acquisition
Transactions"), (ii) enter into any agreement with respect to any Acquisition
Transaction or give any approval of the type referred to in the next paragraph
below with respect to any Acquisition Transaction or (iii) participate in any
discussions regarding, or take any other action to facilitate any inquiries or
the making of any proposal that constitutes or may reasonably be expected to
lead to any Acquisition Transaction. Notwithstanding the immediately preceding
sentence, the Company and its subsidiaries may, prior to the approval of the
Merger Agreement by the Company's stockholders, in response to any unsolicited
proposal for an Acquisition Transaction, furnish information concerning its
business, properties or assets to the corporation, partnership, person or other
entity or group (a "Potential Acquiror") making such proposal for an Acquisition
Transaction and participate in negotiations with the Potential Acquiror if (x)
the Company's Board of Directors after consultation with one or more of its
independent financial advisors, is of the reasonable belief that such Potential
Acquiror has the financial wherewithal to consummate such an Acquisition
Transaction, (y) the Company's Board of Directors reasonably determines, after
receiving advice from the Company's financial advisor, that such Potential
Acquiror has submitted a proposal for an Acquisition Transaction that involves
consideration to the Company's stockholders and other terms that taken as a
whole are superior to the Merger, and (z) based upon advice of counsel to such
effect, the Company's Board of Directors determines in good faith that it is
necessary to so furnish information and negotiate in order to comply with its
fiduciary duty to stockholders of the Company. The Merger Agreement provides
that in the event the Company shall determine to provide any information as
described above, or shall receive any offer of the type referred to in this
subsection or shall receive or become aware of any other proposal to acquire a
substantial part of the business and properties of the Company and its
subsidiaries, taken as a whole, or to acquire a substantial amount of capital
stock of the Company, it shall promptly inform Parent orally as to the fact that
information is to be provided and shall furnish to Parent the identity of the
recipient of such information and/or the proponent of such offer or proposal and
a description of the material terms thereof. The Company is also obligated to
keep Parent fully informed of the status and material details of any
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such proposed Acquisition Transaction or other transaction (including any
material amendments or material proposed amendments of any such proposed
Acquisition Transaction or other transaction).
The Merger Agreement also provides that neither the Board of Directors of
the Company nor any committee thereof (x) shall withdraw or modify or propose to
withdraw or modify, in any manner adverse to Parent, the approval of
recommendation of such Board of Directors or such committee of the Merger or (y)
approve or recommend, or propose to approve or recommend, any proposal for an
Acquisition Transaction except, in each case, in connection with a Superior
Proposal. As used herein, the term "Superior Proposal" means a bona fide
proposal to acquire, directly or indirectly, for consideration consisting of
cash and/or securities, more than 50% of the Shares then outstanding or all or
substantially all the assets of the Company, provided (i) such proposed
transaction satisfies the tests set forth in clauses (x), (y) and (z) of the
second sentence of the immediately preceding paragraph and (ii) the Board of
Directors determines, in its good faith reasonable judgment, that such proposed
transaction is reasonably likely to be consummated without undue delay.
Fees and Expenses. The Merger Agreement provides that the Company will
pay, or cause to be paid, in same day funds to Parent the sum of (x) Parent's
Expenses (as defined below) and (y) $4,125,000 (the "Termination Fee") upon
demand if (i) the Company terminates the Merger Agreement in accordance with the
provision described in paragraph (9) under "Termination of Merger Agreement". In
addition, the Company will pay or cause to be paid in same day funds to Parent,
the sum of Parent's Expenses and the Termination Fee upon demand if (i) the
Purchaser terminates the Merger Agreement in accordance with the provisions
described in paragraphs (6) or (8) under "Termination of Merger Agreement" at
any time after a proposal for an Acquisition Transaction has been made, (ii) the
Company or the Purchaser terminates the Merger Agreement in accordance with the
provisions described in paragraphs (2), (3) or (5) under "Termination of Merger
Agreement" at any time after a proposal for an Acquisition Transaction has been
made, or (iii) the Purchaser terminates the Merger Agreement in accordance with
the provision described in paragraph (6)(ii) under "Termination of Merger
Agreement" at any time after a proposal for an Acquisition Transaction has been
made and, within nine months after any termination referred to in the
immediately preceding clauses (i), (ii) or (iii) of this sentence, the person
that made the proposal for an Acquisition Transaction (or an affiliate thereof)
completes a merger, consolidation or other business combination with the Company
or a subsidiary of the Company, or the purchase from the Company or from a
subsidiary of the Company of 30% or more (in voting power) of the voting
securities of the Company or of 30% or more (in market value) of the assets of
the Company and its subsidiaries, on a consolidated basis; provided that the
Company will not have any such obligations if the Purchaser terminates the
Merger Agreement in accordance with the provision described in paragraph (6)(ii)
under "Termination of Merger Agreement" as a result of the failure of a
condition to be satisfied unless the reason for the failure of such condition to
be satisfied is reasonably related to the making of such proposal for an
Acquisition Transaction by the person that ultimately consummated a transaction
with the Company. "Expenses" shall mean reasonable and reasonably documented
out-of-pocket fees and expenses incurred or paid by or on behalf of Parent in
connection with the Offer and the Merger or the consummation of any of the
transactions contemplated by the Merger Agreement (including, without
limitation, the fees and expenses of one counsel representing the financial
institutions providing financing to the Purchaser and all fees and expenses of
Parent's investment banking firm), provided that all such Expenses for this
purpose shall not exceed $1.2 million in the aggregate.
Conduct of Business by the Company. The Merger Agreement provides that,
except as otherwise expressly contemplated by the Merger Agreement (including
exceptions on the disclosure schedule thereto) or to the extent that the
Purchaser shall otherwise consent in writing, during the period from the date of
the Merger Agreement to the effective time of the Merger the Company shall not
and shall cause its subsidiaries not to: (a) declare, set aside or pay any
dividends on, or make any other distributions in respect of, any of its capital
stock, other than dividends and distributions by a direct or indirect wholly
owned subsidiary of the Company to its parent; (b) split, combine or reclassify
any of its capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for shares of its
capital stock; (c) purchase, redeem or otherwise acquire any shares of capital
stock of the Company or any of its subsidiaries or any other securities thereof
or any rights, warrants or options to acquire any such shares or other
securities; (d) issue, deliver, sell,
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pledge or otherwise encumber any shares of its capital stock, any other voting
securities or any securities convertible into, or any rights, warrants or
options to acquire, any such shares, voting securities or convertible securities
except upon exercise of any Stock Option; (e) amend its certificate of
incorporation, by-laws or other comparable organizational documents; (f) acquire
or agree to acquire (x) by merging or consolidating with, or by purchasing a
substantial portion of the assets of, or by any other manner, any business or
any corporation, limited liability company, partnership, joint venture,
association or other business organization or division thereof or (y) any assets
that individually or in the aggregate are material to the Company and its
subsidiaries taken as a whole; (g) sell, lease, license, mortgage or otherwise
encumber or subject to any lien or otherwise dispose of any of its properties or
assets, other than in the ordinary course of business consistent with past
practice, that are material to the Company and its subsidiaries taken as a
whole; (h) incur any indebtedness, except for borrowings for working capital
purposes not in excess of $500,000 at any one time outstanding incurred in the
ordinary course of business consistent with past practice and except for
intercompany indebtedness between the Company and any of its wholly-owned
subsidiaries or between such wholly-owned subsidiaries, or make any loans,
advances or capital contributions to, or investments in, any other person, other
than to the Company or any direct or indirect wholly owned subsidiary of the
Company; (i) make or agree to make any new capital expenditure or capital
expenditures which in the aggregate are in excess of $250,000; (j) make any tax
election that could reasonably be expected to have a Material Adverse Effect on
the Company or settle or compromise any material income tax liability; (k)
except in the ordinary course of business or except as would not reasonably be
expected to have a Material Adverse Effect on the Company, modify, amend or
terminate any material contract or agreement to which the Company or any
subsidiary is a party or waive, release or assign any material rights or claims
thereunder; (l) make any material change to its accounting methods, principles
or practices, except as may be required by generally accepted accounting
principles; or (m) authorize, or commit or agree to take, any of the foregoing
actions.
In addition to the foregoing, the Company has agreed that, except as
expressly contemplated or permitted by the Merger Agreement, it will not take
any action, or permit any of its subsidiaries to take any action, that would, or
that could reasonably be expected to, result in (a) any of the representations
and warranties of the Company set forth in the Merger Agreement that are
qualified as to materiality becoming untrue, (b) any of such representations and
warranties that are not so qualified becoming untrue in any material respect or
(c) any of the conditions to the Merger not being satisfied.
Board of Directors. The Merger Agreement provides that promptly upon the
purchase by the Purchaser of the Shares pursuant to the Offer and from time to
time thereafter, the Purchaser shall be entitled to designate up to the minimum
number of directors of the Company necessary in order for the result (expressed
as a fraction) derived by dividing the number of directors so designated by the
total number of directors to be at least equal to the result (expressed as a
fraction) derived by dividing the Shares then held by the Purchaser by the total
number of Shares then outstanding, provided, however, that until the
consummation of the Merger, the Board of Directors of the Company will have at
least two Independent Directors. Subject to applicable law, the Company has
agreed to take all action requested by Parent necessary to effect any such
election, including mailing to its stockholders the Information Statement
containing the information required by Section 14(f) of the Exchange Act and
Rule 14f-1 promulgated thereunder, which Information Statement is attached as
Schedule I to the Schedule 14D-9. The term "Independent Director" means a
director of the Company who is (i) not designated by the Purchaser nor otherwise
affiliated with Parent or the Purchaser, (ii) not an employee or the Chairman of
the Company or any of its subsidiaries and (iii) is not affiliated with Anasco.
Stock Options. Pursuant to the Merger Agreement, immediately prior to the
effective time of the Merger, each then outstanding Stock Option, shall be
canceled by the Company in exchange for a payment in cash by the Purchaser (the
"Option Consideration") equal to the product of (i) the number of Shares
previously subject to the Stock Option and (ii) the excess, if any, of the Offer
Price over the aggregate exercise price for such Shares under such Stock Option.
As of the effective time of the Merger, each holder of an Stock Option will be
entitled to receive only an amount equal to the Option Consideration. All Stock
Option amounts payable shall be subject to any required withholding of taxes and
shall be paid without interest. Pursuant to the Merger Agreement, the Company
shall thereafter cause each stock option or other equity based plan maintained
with respect to any Shares (or rights in respect thereof) (other than the
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BioWhittaker, Inc. Savings and Stock Investment Plan and the BioWhittaker, Inc.
Supplemental Executive Retirement Plan) to be terminated.
Indemnification and Insurance. In the Merger Agreement, Parent and the
Purchaser have agreed that all rights to indemnification and exculpation from
liabilities for acts or omissions occurring at or prior to the effective time of
the Merger now existing in favor of the current or former directors or officers
of the Company and its subsidiaries as provided in their respective certificates
of incorporation, by-laws (or comparable organizational documents) and
indemnification agreements shall survive the Merger and shall continue in full
force and effect in accordance with their terms for a period of not less than
six years from the Effective Time. Pursuant to the Merger Agreement, Parent will
cause to be maintained for a period of not less than six years from the
effective time of the Merger the Company's current directors' and officers'
insurance and indemnification policy to the extent that it provides coverage for
events occurring prior to such effective time ("D&O Insurance") for all persons
who are directors and officers of the Company on the date of the Merger
Agreement, so long as the annual premium therefor would not be in excess of 200%
of the last annual premium paid prior to the date of the Merger Agreement;
provided, however, that Parent may, in lieu of maintaining such existing D&O
Insurance as provided above, cause coverage to be provided under any policy
maintained for the benefit of Parent or any of its subsidiaries or any policy
specifically obtained for this purpose, so long as the terms thereof are no less
advantageous to the intended beneficiaries thereof than the existing D&O
Insurance. If the existing D&O Insurance expires, is terminated or canceled
during such six-year period, Parent has agreed to use all reasonable efforts to
cause to be obtained as much D&O Insurance as can be obtained for the remainder
of such period, on terms and conditions no less advantageous to the covered
persons than the existing D&O Insurance.
Reasonable Efforts. The Merger Agreement provides that, except as
otherwise contemplated therein, Parent, the Purchaser and the Company shall use
their reasonable best efforts to take promptly, or cause to be taken, all
actions and to do promptly, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by the
Merger Agreement, including using their reasonable best efforts (i) to obtain
all necessary waivers, consents and approvals, and (ii) to effect all necessary
registrations and filings, subject to approval by the Company's stockholders. In
case at any time after the effective time of the Merger any further action is
necessary or desirable to carry out the obligations of the parties under the
Merger Agreement, the proper officers and/or directors of Parent, the Purchaser
and the Company, as the case may be, shall take the necessary action.
Specifically, Parent, Purchaser and the Company have agreed to use their
reasonable best efforts to make promptly any required submissions under the HSR
Act with respect to the Merger and the transactions contemplated by the Merger
Agreement. The Company has agreed to use its reasonable best efforts to obtain
all consents, approvals, permits or authorizations as are required to be
obtained from other parties to loan agreements or other contracts material to
the Company's business in connection with the consummation of the Merger.
Amendment to the Rights Agreement. In connection with the Company's
entering into the Merger Agreement, on August 22, 1997, the Company amended the
Rights Agreement by entering into Amendment No.1 thereto (the "Amendment"). The
Amendment has been effected to ensure that (i) the respective transactions
contemplated by the Offer, the Merger Agreement and the Stockholders Agreement
are exempt from the Rights Agreement's operation and (ii) neither the Purchaser
nor Parent, nor any of their affiliates shall be deemed an Acquiring Person (as
defined in the Rights Agreement) as a result of consummation of such
transactions. Should either the Offer or the Merger Agreement or any of the
transactions contemplated thereby have resulted in Parent or the Purchaser being
deemed Acquiring Persons, the Company could have effected a distribution of
Rights to the Company's stockholders pursuant to the Rights Agreement.
Representations and Warranties. The Merger Agreement contains various
customary representations and warranties.
The Stockholders Agreement
Pursuant to the terms and conditions of the Stockholders Agreement, each
Selling Stockholder has agreed to tender his Shares in the Offer. In the
Stockholders Agreement, each Selling Stockholder has further
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agreed that, until the Termination Date (as defined below), such Selling
Stockholder will vote his Shares (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
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 Company
under the Merger Agreement, the Offer or the Stockholders 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 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 the
Stockholders Agreement or the contemplated economic benefits of any of the
foregoing.
In addition, subject to his obligations as a director or officer of the
Company, to the extent permitted by the Merger Agreement, each Selling
Stockholder has agreed that he 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. If any Selling Stockholder receives any such inquiry
or proposal, then such Selling 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. The Selling Stockholders have also agreed to
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.
Under the Stockholders Agreement, each Selling Stockholder has also granted
the Purchaser an irrevocable option to purchase all of such Selling
Stockholder's Shares, including all Shares subject to all Stock Options owned by
such Selling Stockholder, in each case at the Offer Price per Share. In the case
of all Shares underlying all such Stock Options (the "Option Shares"), such
option may be exercised by the Purchaser at any time following its purchase of
any Shares pursuant to the Offer and prior to the Termination Date. Among other
things, this option may facilitate the Purchaser's ability to acquire 50% of the
outstanding Shares. In the case of all other Shares held by the Selling
Stockholders, such option may be exercisable by the Purchaser at any time, and
from time to time, following any time when the Merger Agreement has been
terminated in accordance with its terms and prior to the Termination Date. Among
other things, such option will enable the Purchaser to sell all of such Shares
to any person who has made and consummates a Superior Proposal.
For purposes of the Stockholders Agreement, the term "Termination Date"
means the earlier of (a) twelve months from the date of the Stockholders
Agreement and (b) the consummation of the Merger, provided, however, that if the
Company is not in breach of its obligations under the Merger Agreement and none
of the Selling Stockholders are in breach of their obligations under the
Stockholders Agreement, the Termination Date shall be the date that: (i) the
Merger Agreement shall have terminated in accordance with the provisions
described in paragraphs (1), (4), (6)(i) or (7) under "Termination of the Merger
Agreement" above, (ii) the Merger Agreement shall have terminated in accordance
with the provisions described in paragraphs (2), (3) or (5) under "Termination
of the Merger Agreement" above and no proposal for an Acquisition Transaction
has been made, (iii) the Merger Agreement shall have terminated in accordance
with the provisions described in paragraph (6)(ii) under "Termination of the
Merger Agreement" above unless a proposal for an Acquisition Transaction has
been made. The Stockholders Agreement shall terminate on the Termination Date.
A Copy of the Stockholders Agreement has been filed as an Exhibit to the
Schedule 14D-1 and the foregoing summary is qualified in its entirety by
reference to such Exhibit.
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Except as otherwise described in this Offer to Purchase, the Purchaser and
Parent have no current plans or proposals that would relate to, or result in,
any extraordinary corporate transaction involving the Company, such as a merger,
reorganization or liquidation involving the Company or any of its subsidiaries,
a sale or transfer of a material amount of assets of the Company or any of its
subsidiaries to any unaffiliated third party, any change in the Company's
capitalization or dividend policy or any other material change in the Company's
business or corporate structure.
Appraisal Rights
Holders of Shares do not have appraisal rights as a result of the Offer.
However, if the Merger is consummated, holders of Shares at the effective time
of the Merger will have certain rights pursuant to the provisions of Section 262
of the DGCL ("Section 262") to dissent and demand appraisal of their Shares.
Under Section 262, dissenting stockholders who comply with the applicable
statutory procedures will be entitled to receive a judicial determination of the
fair value of their Shares (exclusive of any element of value arising from the
accomplishment or expectation of the Merger) and to receive payment of such fair
value in cash, together with a fair rate of interest, if any. Any such judicial
determination of the fair value of Shares could be based upon factors other
than, or in addition to, the price per Share to be paid in the Merger or the
market value of the Shares. The value so determined could be more or less than
the price per Share to be paid in the Merger.
The foregoing summary of Section 262 does not purport to be complete and is
qualified in its entirety by reference to Section 262. FAILURE TO FOLLOW THE
STEPS REQUIRED BY SECTION 262 FOR PERFECTING APPRAISAL RIGHTS MAY RESULT IN THE
LOSS OF SUCH RIGHTS.
Going Private Transactions
The Commission has adopted Rule 13e-3 under the Exchange Act, which is
applicable to certain "going private" transactions. The Purchaser does not
believe that Rule 13e-3 will be applicable to the Merger unless the Merger is
consummated more than one year after the termination of the Offer. If
applicable, Rule 13e-3 requires, among other things, that certain financial
information concerning the fairness of the Merger and the consideration offered
to minority stockholders in such transaction be filed with the Commission and
disclosed to stockholders prior to the consummation of the Merger.
13. DIVIDENDS AND DISTRIBUTIONS
Pursuant to the terms of the Merger Agreement, the Company is prohibited
from taking any of the actions described in the two succeeding paragraphs, and
nothing herein shall constitute a waiver by the Purchaser or Parent of any of
its rights under the Merger Agreement or a limitation of remedies available to
the Purchaser or Parent for any breach of the Merger Agreement, including
termination thereof.
If, on or after August 22, 1997, the Company should (a) split, combine or
otherwise change the Shares, or its capitalization, (b) acquire or otherwise
cause a reduction in the number of outstanding Shares, or other securities or
(c) issue or sell additional Shares or shares of any other class of capital
stock, other voting securities or any securities convertible into, or rights,
warrants or options, conditional or otherwise, to acquire any of the foregoing,
other than Shares issued pursuant to the exercise of outstanding stock options,
then, subject to the provisions of Section 14, the Purchaser, in its sole
discretion, may make such adjustments as it deems appropriate in the Offer Price
and other terms of the Offer, including, without limitation, the number or type
of securities offered to be purchased.
If, on or after August 22, 1997, the Company should declare or pay any cash
dividend on the Shares or other distribution on the Shares, or issue with
respect to the Shares any additional Shares, shares of any other class of
capital stock, other voting securities or any securities convertible into, or
rights, warrants or options, conditional or otherwise, to acquire, any of the
foregoing, payable or distributable to stockholders of record on a date prior to
the transfer of the Shares purchased pursuant to the Offer to the Purchaser or
its nominee or transferee on the Company's stock transfer records, then, subject
to the provisions of Section 14, (a) the Offer Price may, in the sole discretion
of the Purchaser, be reduced by the amount of any such cash dividend or cash
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distribution and (b) the whole of any such noncash dividend, distribution or
issuance to be received by the tendering stockholders will (i) be received and
held by the tendering stockholders for the account of the Purchaser and will be
required to be promptly remitted and transferred by each tendering stockholder
to the Depositary for the account of the Purchaser, accompanied by appropriate
documentation of transfer, or (ii) at the direction of the Purchaser, be
exercised for the benefit of the Purchaser, in which case the proceeds of such
exercise will promptly be remitted to the Purchaser. Pending such remittance and
subject to applicable law, the Purchaser will be entitled to all rights and
privileges as owner of any such noncash dividend, distribution, issuance or
proceeds and may withhold the entire Offer Price or deduct from the Offer Price
the amount or value thereof, as determined by the Purchaser in its sole
discretion.
14. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or the Merger Agreement, the
Purchaser shall not be required to accept for payment, or, subject to any
applicable rules and regulations of the Commission, including Rule 14e-1(c)
under the Exchange Act (relating to the Purchaser's obligation to pay for or
return tendered shares after the termination or withdrawal of the Offer), to pay
for any Shares tendered pursuant to the Offer, and (subject to the terms of the
Merger Agreement) may amend or terminate the Offer or postpone the acceptance
for payment, the purchase of, and/or (subject to any such applicable rules and
regulations of the Commission) payment for, Shares tendered, (i) unless there
are validly tendered and not properly withdrawn prior to the expiration of the
Offer at least that number of Shares which, together with the Option Shares
which are subject to the Stockholders Agreement, represents in excess of 50% of
the Shares on a fully-diluted basis, or (ii) if at any time on or after the date
of the Merger Agreement and at or before the time of payment for any such Shares
(whether or not any Shares shall theretofore have been accepted for payment or
paid pursuant to the Offer) any of the following conditions exists:
(a) there shall have been any action or proceeding brought by any
governmental authority before any federal or state court, or any order or
preliminary or permanent injunction entered in any action or proceeding
before any federal or state court or governmental, administrative or
regulatory authority or agency, located or having jurisdiction within the
United States or any country or economic region in which either the Company
or Parent, directly or indirectly, has material assets or operations, or
any other action taken, proposed or threatened, or statute, rule,
regulation, legislation, interpretation, judgment or order proposed,
sought, enacted, entered, enforced, promulgated, amended, issued or deemed
applicable to Purchaser, the Company or any subsidiary or affiliate of
Purchaser or the Company or the Offer or the Merger, by any legislative
body, court, government or governmental, administrative or regulatory
authority or agency located or having jurisdiction within the United States
or any country or economic region in which either the Company or Parent,
directly or indirectly, has material assets or operations, which could
reasonably be expected to have the effect of: (i) making illegal, or
otherwise restraining or prohibiting or making materially more costly, the
making of the Offer, the acceptance for payment of, payment for, or
ownership, directly or indirectly, of some of or all the Shares by Parent
or Purchaser, the consummation of any of the transactions contemplated by
the Merger Agreement or materially delaying the Merger; (ii) prohibiting or
materially limiting the ownership or operation by the Company or any of its
subsidiaries, or by Parent, Purchaser or any of Parent's subsidiaries of
all or any material portion of the business or assets of the Company and
its subsidiaries taken as a whole or Parent or any of its subsidiaries, or
compelling Purchaser, Parent or any of Parent's subsidiaries to dispose of
or hold separate all or any material portion of the business or assets of
the Company and its subsidiaries taken as a whole or Parent or any of its
subsidiaries, in each case as a result of the transactions contemplated by
the Offer or the Merger Agreement; (iii) imposing or confirming material
limitations on the ability of Purchaser, Parent or any of Parent's
subsidiaries effectively to acquire or hold or to exercise full rights of
ownership of Shares including, without limitation, the right to vote any
Shares acquired or owned by Parent or Purchaser or any of Parent's
subsidiaries on all matters properly presented to the stockholders of the
Company, including, without limitation, the adoption and approval of the
Merger Agreement and the Merger or the right to vote any shares of capital
stock of any subsidiary directly or indirectly owned by the Company; (iv)
requiring divestiture by Parent or Purchaser, directly or indirectly, of
any Shares; or (v) which could reasonably be expected to materially
adversely affect the business, financial condition or
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results of operations of the Company and its subsidiaries taken as a whole
or the value of the Shares or of the Offer to Purchaser or Parent;
(b) there shall have occurred (i) any general suspension of trading
in, or limitation on prices for, securities on any national securities
exchange or in the over-the-counter market in the United States, (ii) a
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States, (iii) any limitation (whether or not
mandatory) by any U.S. government or governmental, administrative or
regulatory authority or agency, on, or any other event that materially
adversely affects, the extension of credit by banks or other lending
institutions, (iv) a commencement of a war or armed hostilities or other
national or international calamity directly or indirectly involving the
United States which would reasonably be expected to have a Material Adverse
Effect or materially adversely affect (or materially delay) the
consummation of the Offer or (v) in the case of any of the foregoing
existing at the time of the execution of the Merger Agreement, a material
acceleration or worsening thereof which acceleration or worsening is
reasonably expected to have a Material Adverse Effect on the Company or to
materially adversely affect the consummation of the Offer;
(c)(i) it shall have been publicly disclosed that beneficial ownership
(determined for the purposes of this paragraph as set forth in Rule 13d-3
promulgated under the Exchange Act) of 20% or more of the outstanding
Shares has been acquired by any corporation (including the Company or any
of its subsidiaries or affiliates), partnership, person or other entity or
group (as defined in Section 13(d)(3) of the Exchange Act), other than
Parent or any of its affiliates, or (ii) (A) the Board of Directors of the
Company or any committee thereof shall have withdrawn or modified in a
manner adverse to Parent or Purchaser the approval or recommendation of the
Offer, the Merger or the Merger Agreement, or approved or recommended any
takeover proposal or any other acquisition of Shares other than the Offer
and the Merger, (B) any such corporation, partnership, person or other
entity or group shall have entered into a definitive agreement or an
agreement in principle with the Company with respect to a tender offer or
exchange offer for any Shares or a merger, consolidation or other business
combination with or involving the Company or any of its subsidiaries or (C)
the Board of Directors of the Company or any committee thereof shall have
resolved to do any of the foregoing;
(d) any of the representations and warranties of the Company set forth
in the Merger Agreement that are qualified as to materiality shall not be
true and correct or any such representations and warranties that are not so
qualified shall not be true and correct in any material respect, in each
case as if such representations and warranties were made at the time of
such determination, except with respect to representations and warranties
made as of an earlier time;
(e) the Company shall have failed to perform any material obligation
or to comply with any material agreement or material covenant of the
Company to be performed or complied with by it under the Merger Agreement;
(f) the Merger Agreement shall have been terminated in accordance with
its terms or the Offer shall have been terminated with the consent of the
Company; or
(g) any waiting periods under the HSR Act applicable to the purchase
of Shares pursuant to the Offer shall not have expired or been terminated
or any material approval, permit, authorization, consent or waiting period
of any domestic, foreign or supranational governmental, administrative or
regulatory agency (federal, state, local, provincial or otherwise) located
or having jurisdiction within the United States or any country or economic
region in which either the Company or Parent, directly or indirectly, has
material assets or operations, shall not have been obtained and such
failure to obtain could reasonably be expected to have a Material Adverse
Effect on the Company or the value of the Shares or the Offer to the
Purchaser;
which, in the good faith sole judgment of Purchaser makes it inadvisable to
proceed with the Offer or with such acceptance for payment of or payment for
Shares or to proceed with the Merger.
The foregoing conditions are for the sole benefit of Purchaser and may be
asserted by Purchaser regardless of the circumstances giving rise to any such
condition or may be waived by Purchaser in whole or in
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part at any time and from time to time in its sole discretion (subject to the
terms of the Merger Agreement). The failure by Purchaser at any time to exercise
any of the foregoing rights shall not be deemed a waiver of any such right, the
waiver of any such right with respect to particular facts and other
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances, and each such right shall be deemed an ongoing right that may be
asserted at any time and from time to time.
15. CERTAIN LEGAL MATTERS
Except as described in this Section 15, based on a review of publicly
available filings made by the Company with the Commission and other publicly
available information concerning the Company and discussions of representatives
of Parent with representatives of the Company, neither the Purchaser nor Parent
is aware of any license or regulatory permit that appears to be material to the
business of the Company and its subsidiaries, taken as a whole, that might be
adversely affected by the Purchaser's acquisition of Shares (and the indirect
acquisition of the stock of the Company's subsidiaries) as contemplated herein
or of any approval or other action by any Governmental Entity that would be
required or desirable for the acquisition or ownership of Shares by the
Purchaser as contemplated herein. Should any such approval or other action be
required or desirable, the Purchaser and Parent currently contemplate that such
approval or other action will be sought, except as described below under "State
Takeover Laws". While, except as otherwise expressly described in this Section
15, the Purchaser does not presently intend to delay the acceptance for payment
of or payment for Shares tendered pursuant to the Offer pending the outcome of
any such matter, there can be no assurance that any such approval or other
action, if needed, would be obtained or would be obtained without substantial
conditions or that failure to obtain any such approval or other action might not
result in consequences adverse to the Company's business or that certain parts
of the Company's business might not have to be disposed of if such approvals
were not obtained or such other actions were not taken or in order to obtain any
such approval or other action. If certain types of adverse action are taken with
respect to the matters discussed below, the Purchaser could decline to accept
for payment or pay for any Shares tendered. See Section 14.
State Takeover Laws. A number of states throughout the United States have
enacted takeover statutes that purport, in varying degrees, to be applicable to
attempts to acquire securities of corporations that are incorporated or have
assets, stockholders, executive offices or places of business in such states. In
Edgar v. MITE Corp., the Supreme Court of the United States held that the
Illinois Business Takeover Act, which involved state securities laws that made
the takeover of certain corporations more difficult, imposed a substantial
burden on interstate commerce and therefore was unconstitutional. In CTS Corp.
v. Dynamics Corp. of America, however, the Supreme Court of the United States
held that a state may, as a matter of corporate law and, in particular, those
laws concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without prior
approval of the remaining stockholders, provided that such laws were applicable
only under certain conditions. Subsequently, a number of Federal courts ruled
that various state takeover statutes were unconstitutional insofar as they apply
to corporations incorporated outside the state of enactment.
Section 203 of the DGCL. Section 203 of the DGCL, in general, prohibits a
Delaware corporation such as the Company from engaging in a "Business
Combination" (defined as a variety of transactions, including mergers, as set
forth below) with an "Interested Stockholder" (defined generally as a person
that is the beneficial owner of 15% or more of a corporation's outstanding
voting stock) for a period of three years following the date that such person
became an Interested Stockholder unless, among other things, prior to the time
such person became an Interested Stockholder, the board of directors of the
corporation approved either the Business Combination or the transaction that
resulted in the stockholder becoming an Interested Stockholder. The Company's
Board of Directors has approved the Merger Agreement, the Stockholders Agreement
and the Purchaser's acquisition of Shares pursuant to the Offer and the
Stockholders Agreement. Therefore, Section 203 of the DGCL is inapplicable to
the Merger.
Based on information supplied by the Company, the Purchaser does not
believe that any other state takeover statutes purport to apply to the Offer or
the Merger. Neither the Purchaser nor Parent has currently complied with any
state takeover statute or regulation. The Purchaser reserves the right to
challenge the
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applicability or validity of any state law purportedly applicable to the Offer
or the Merger and nothing in this Offer to Purchase or any action taken in
connection with the Offer or the Merger is intended as a waiver of such right.
If it is asserted that any state takeover statute is applicable to the Offer or
the Merger and an appropriate court does not determine that it is inapplicable
or invalid as applied to the Offer or the Merger, the Purchaser might be
required to file certain information with, or to receive approvals from, the
relevant state authorities, and the Purchaser might be unable to accept for
payment or pay for Shares tendered pursuant to the Offer, or be delayed in
consummating the Offer or the Merger. In such case, the Purchaser may not be
obligated to accept payment or pay for any Shares tendered pursuant to the
Offer. See Section 14.
Antitrust. Under the provisions of the HSR Act applicable to the Offer,
the acquisition of Shares under the Offer may be consummated following the
expiration of a 15-calendar day waiting period following the filing by Parent of
a Notification and Report Form with respect to the Offer, unless Parent or the
Company receives a request for additional information or documentary material
from the Antitrust Division or the FTC or unless early termination of the
waiting period is granted. Parent and the Company expect to file Notification
and Report Forms with respect to the Offer soon. If, within the initial 15-day
waiting period, either the Antitrust Division or the FTC requests additional
information or material from Parent or the Company concerning the Offer, the
waiting period will be extended and would expire at 11:59 p.m., New York City
time, on the tenth calendar day after the date of substantial compliance by
Parent or the Company with such request. Only one extension of the waiting
period pursuant to a request for additional information is authorized by the HSR
Act. Thereafter, such waiting period may be extended only by court order or with
the consent of Parent and the Company. In practice, complying with a request for
additional information or material can take a significant amount of time. In
addition, if the Antitrust Division or the FTC raises substantive issues in
connection with a proposed transaction, the parties frequently engage in
negotiations with the relevant governmental agency concerning possible means of
addressing those issues and may agree to delay consummation of the transaction
while such negotiations continue. Expiration or termination of the applicable
waiting period under the HSR Act is a condition to the Purchaser's obligation to
accept for payment and pay for Shares tendered pursuant to the Offer.
The Merger would not require an additional filing under the HSR Act if the
Purchaser owns 50% or more of the outstanding Shares at the time of the Merger
or if the Merger occurs within one year after the HSR Act waiting period
applicable to the Offer expires or is terminated.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the Purchaser's proposed acquisition
of the Company. At any time before or after the Purchaser's acquisition of
Shares pursuant to the Offer, the Antitrust Division or the FTC could take such
action under the antitrust laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the purchase of Shares pursuant to the
Offer or the consummation of the Merger or seeking the divestiture of Shares
acquired by the Purchaser or the divestiture of substantial assets of the
Company or its subsidiaries or Parent or its subsidiaries. Private parties may
also bring legal action under the antitrust laws under certain circumstances.
There can be no assurance that a challenge to the Offer on antitrust grounds
will not be made or, if such a challenge is made, of the result thereof.
EEA and National Merger Regulation. According to the Company 1996 10-K,
the Company conducts substantial operations in the European Economic Area (the
"EEA"). EEC Regulation 4064/89 (the "Merger Regulation") and Article 57 of the
European Economic Area Agreement require that concentrations with a "Community
dimension" be notified in prescribed form to the Commission of the European
Communities (the "European Commission") for review and approval prior to being
put into effect. In such cases, the European Commission will, with certain
exceptions, have exclusive jurisdiction to review the concentration as opposed
to the individual countries within the EEA.
The Offer will be deemed to have a "Community dimension" if the combined
aggregate worldwide annual revenues of both Parent and the Company exceed ECU 5
billion, if the Community-wide annual revenues of each of Parent and the Company
exceed ECU 250 million and if both Parent and the Company do not receive more
than two-thirds of their respective Community-wide revenues from one and the
same country. Concentrations that are found not to be subject to the Merger
Regulation may be subject to the
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various national merger control regimes of the countries of the EEA, resulting
in the possibility that it may be necessary or desirable to obtain approvals
from the various national authorities.
Based upon information contained in the Company 1996 10-K, the Purchaser
currently believes that the Offer should not be considered to have a "Community
dimension," as the Community-wide revenues of the Company for 1995 appear not to
exceed ECU 250 million. Therefore, the Purchaser does not currently intend to
file a notification with the European Commission.
In EEA countries where it may be necessary to obtain approvals, mandatory
notification obligations may also apply to the Offer and the Merger. In certain
other jurisdictions, although filing may not be mandatory, the Purchaser may
consider it to be desirable to obtain clearance from the relevant national
authority. The period within which the relevant national authority must or may
reach a preliminary decision on the Offer and the Merger, and the length of time
available to such national authority if it decides to commence a full
investigation of the transaction, varies from jurisdiction to jurisdiction. In
most cases a decision at the preliminary inquiry phase can be expected within
one to two months of notification; where a full inquiry into a transaction is
undertaken, the detailed investigations may take several months.
There can be no assurance that a challenge to the Offer will not be made
pursuant to the merger control regimes of one or more of various countries (or
alternatively, if applicable, pursuant to the Merger Regulation) or by legal
action brought by private parties or, if such a challenge is made, what the
outcome would be. See Section 14.
Other Foreign Laws. The Company and certain of its subsidiaries conduct
business in several foreign countries where regulatory filings or approvals may
be required or desirable in connection with the consummation of the Offer.
Certain of such filings or approvals, if required or desirable, may not be made
or obtained prior to the expiration of the Offer. The Purchaser is seeking
further information regarding the applicability of any such laws and currently
intends to take such action as may be required or desirable. If any foreign
Governmental Entity takes any action prior to the completion of the Offer that
might have certain adverse effects, the Purchaser will not be obligated to
accept for payment or pay for any Shares tendered. See Section 14.
16. FEES AND EXPENSES
Schroders is acting as Dealer Manager in connection with the Offer and is
providing certain financial advisory services to the Purchaser and Parent in
connection with the Offer. Parent is paying to Schroders a fee of $150,000 upon
the commencement of the Offer, which fee shall be credited against a fee of
$750,000, payable upon the closing of the Merger. Parent has paid an additional
fee to Schroders of $250,000 in connection with Schroders' delivery to the Board
of Directors of Parent of a fairness opinion with respect to the consideration
to be paid by Parent under the Merger Agreement. In addition, Parent has agreed
to reimburse Schroders for reasonable out-of-pocket expenses related to their
engagement, including the reasonable fees and expenses of its legal counsel, and
has agreed to indemnify each of Schroders and certain affiliated persons against
certain liabilities and expenses in connection with its services, including,
without limitation, certain liabilities under the federal securities laws.
In the ordinary course of its business, Schroders engages in securities
trading, market-making and brokerage activities and may, at any time, hold long
or short positions and may trade or otherwise effect transactions in securities
of the Company. As of August 27, 1997, Schroders had no long or short positions
with respect to Shares held for its own accounts. Ilan Kaufthal, a director of
Parent, is also Managing Director and Vice Chairman of Schroders.
The Purchaser and Parent have retained D.F. King & Co., Inc. to act as the
Information Agent and ChaseMellon Shareholder Services L.L.C., to serve as the
Depositary in connection with the Offer. The Information Agent and the
Depositary each will receive reasonable and customary compensation for their
services, be reimbursed for certain reasonable out-of-pocket expenses and be
indemnified against certain liabilities and expenses in connection therewith,
including certain liabilities and expenses under the Federal securities laws.
31
<PAGE> 34
Neither the Purchaser nor Parent will pay any fees or commissions to any
broker or dealer or other person (other than the Dealer Manager and the
Information Agent) in connection with the solicitation of tenders of Shares
pursuant to the Offer. Brokers, dealers, banks and trust companies will be
reimbursed by the Purchaser upon request for customary mailing and handling
expenses incurred by them in forwarding material to their customers.
17. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. Neither the Purchaser nor Parent is aware of any jurisdiction in
which the making of the Offer or the acceptance thereof would not be in
compliance with the laws of such jurisdiction. To the extent the Purchaser or
Parent becomes aware of any state law that would limit the class of offerees in
the Offer, the Purchaser will amend the Offer and, depending on the timing of
such amendment, if any, will extend the Offer to provide adequate dissemination
of such information to holders of Shares prior to the expiration of the Offer.
In any jurisdiction the securities, blue sky or other laws of which require the
Offer to be made by a licensed broker or dealer, the Offer is being made on
behalf of the Purchaser by the Dealer Manager or one or more registered brokers
or dealers licensed under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER OR PARENT NOT CONTAINED HEREIN OR IN
THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
The Purchaser and Parent have filed with the Commission the Schedule 14D-1
pursuant to Rule 14d-3 under the Exchange Act, together with exhibits,
furnishing certain additional information with respect to the Offer, and may
file amendments thereto. In addition, the Company has filed the Schedule 14D-9
pursuant to Rule 14d-9 under the Exchange Act, together with exhibits, setting
forth its recommendation with respect to the Offer and the reasons for such
recommendation and furnishing certain additional related information. Such
Schedules and any amendments thereto, including exhibits, should be available
for inspection and copies should be obtainable in the manner set forth in
Sections 8 and 9 (except that such material will not be available at the
regional offices of the Commission).
BW ACQUISITION CORPORATION
August 28, 1997
32
<PAGE> 35
SCHEDULE 1
DIRECTORS AND EXECUTIVE OFFICERS OF
PARENT AND THE PURCHASER
1. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. The following table sets
forth the name and current principal occupation or employment of the directors
and executive officers of Parent. Unless otherwise indicated, all occupations,
offices or positions of employment listed opposite an individual's name were
held by such individual during the last five years. The business address of each
such director and executive officer is Cambrex Corporation, One Meadowlands
Plaza, East Rutherford, NJ 07073. Unless otherwise indicated, all such directors
and executive officers listed below are citizens of the United States. None of
the persons listed below are directors unless indicated by an asterisk.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND FIVE-YEAR
NAME AND CITIZENSHIP EMPLOYMENT HISTORY
- --------------------------------------------- ---------------------------------------------
<S> <C>
Cyril C. Baldwin, Jr.* ...................... President of Cambrex Corp. from 1981 to early
1990, CEO from 1984 to April 1995, Chairman
of the Board since 1991; Director of Church &
Dwight Co., Inc. and Congoleum Corp; Member
of NewsBank Advisory Board.
George J.W. Goodman*......................... President, Chairman, and CEO of Continental
Fidelity, Inc.; Director, US Airways Group,
Inc. and New England Life; Member of Advisory
Council of Princeton University Center for
International Studies.
Kathryn Rudie Harrigan*...................... Professor, Management of Organizations
Division of Columbia University Business
School since 1981; Henry L. Kravis Professor
of Business Leadership at Columbia University
Business School since 1993; Academic Director
of Jerome A. Chazen Institute for
International Business at Columbia University
since 1995; Member of the Boards of Schuller
Corp. and Technical Chemicals and Products.
Robert LeBuhn*............................... Chairman, Investor International (U.S.), Inc.
from 1984 to 1994, President from 1984 to
1993; Director of US Airways Group, Inc.,
Acceptance Insurance Companies, Inc., New
Jersey Steel Corp., and Enzon, Inc.
Rosina B. Dixon, M.D.*....................... Consultant to the pharmaceutical industry
since May 1986; Vice President, Secretary,
and Member of the Board of Directors of
Medical Market Specialties Inc. from 1984 to
1986; Medical Director, Schering
Laboratories, Schering-Plough Corp. from 1981
to 1984; Executive Director Biodevelopment,
Pharmaceuticals Division, CIBA-GEIGY Corp.
until 1981; Member of Board of Directors of
Church & Dwight Co., Inc. and Enzon, Inc.
</TABLE>
S-1
<PAGE> 36
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND FIVE-YEAR
NAME AND CITIZENSHIP EMPLOYMENT HISTORY
- --------------------------------------------- ---------------------------------------------
<S> <C>
Leon J. Hendrix, Jr.*........................ Principal of Clayton, Dubilier & Rice, Inc.
since 1994; Various positions at Reliance
Electric Co. since 1973, including COO and
Member of Board of Directors since 1992;
Member of Board of Directors of Keithley
Instruments, Inc., National City Bank of
Cleveland, NAACO Industries, Inc., Wesco
Distribution, Inc., Remington Arms Co., and
Riverwood International Inc.; Member of
Clemson University Board of Trustees; Past
Member of Board of Governors of National
Electrical Manufacturers Assoc. and Board of
Directors of Cleveland Chapter of the
American Red Cross.
Ilan Kaufthal*............................... Managing Director of Schroder & Co. Inc.
since 1987 and Vice Chairman of Schroder &
Co. Inc. since May 1997; Various positions at
NL Industries, Inc., including Senior Vice
President and CFO since 1983; Director of
United Retail Group, Inc., Russ Berrie & Co.,
and ASI Solutions, Inc.
Francis X. Dwyer*............................ President of Nuodex Inc. from 1982 to 1985;
Chairman of Board of Huls America Inc. from
1985 to 1991; Advisory Chairman and Director
of International Dioxide, Inc. since May
1991.
James A. Mack*............................... President and COO of Cambrex Corp. since
February 1990, CEO since April 1995; Vice
President, Specialty Chemicals and then Vice
President, Performance Chemicals, Olin Corp.
from 1984 to 1990; Executive Vice President,
Oakite Products, Inc. from 1982 to 1984;
Various positions at The Sherwin-Williams
Co., including President and General Manager
of the Chemicals Division from 1977 to 1981;
Past Chairman of Board of Governors of
Synthetic Organic Chemical Manufacturing
Association; Past Member of Board of Trustees
of Michigan Tech Alumni Fund; Member of Board
of Directors of Chemical Manufacturing Assoc.
Dean P. Phypers*............................. Various positions at IBM from 1955 to 1987,
including Senior Vice President, Director,
and CFO; Director of American International
Group, Inc., Bethlehem Steel Corp., and
Church & Dwight Co., Inc.
Claes Glassell............................... Vice President of Cambrex Corp. since 1994;
Senior Vice President, Akzo Nobel AB from
1993 to 1994; Senior Vice President, Nobel
Industries AB from 1992 to 1993.
Salvatore J. Guccione........................ Vice President, Commercial Development of
Cambrex Corp. since 1996; Vice President and
General Manager, International Specialty
Products from 1993 to 1995.
</TABLE>
S-2
<PAGE> 37
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND FIVE-YEAR
NAME AND CITIZENSHIP EMPLOYMENT HISTORY
- --------------------------------------------- ---------------------------------------------
<S> <C>
Steven M. Klosk.............................. Executive Vice President, Administration of
Cambrex Corp. since 1996; Vice President,
Administration of Cambrex Corp. from 1992 to
1996.
Douglas H. MacMillan......................... Vice President and CFO of Cambrex Corp. since
April 1997; Vice President and CFO of Morgan
Products Ltd. from 1991 to April 1997.
Susan M. Sorblum............................. Treasurer of Cambrex Corp. since 1993;
Various other positions at Cambrex Corp.
since 1990.
Peter Thauer................................. Vice President of Cambrex Corp. since 1992;
General Counsel and Secretary of Cambrex
Corp. since 1989.
Peter Tracey................................. Executive Vice President, Corporate
Development of Cambrex Corp. since March
1997; CFO and Vice President of Finance of
Cambrex Corp. from 1990 to March 1997.
</TABLE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER. The following table
sets forth the name and current principal occupation or employment of the
directors and executive officers of the Purchaser. The business address of each
such director and executive officer is BW Acquisition Corporation in care of
Cambrex Corporation, One Meadowlands Plaza, East Rutherford, NJ 07073. Unless
otherwise indicated, all such directors and executive officers listed below are
citizens of the United States.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND FIVE-YEAR
NAME AND CITIZENSHIP EMPLOYMENT HISTORY
- --------------------------------------------- ---------------------------------------------
<S> <C>
Peter Tracey................................. President of BW Acquisition Corp.; Executive
Vice President, Corporate Development of
Cambrex Corp. since March 1997; CFO and Vice
President of Finance of Cambrex Corp. from
1990 to March 1997.
Peter Thauer................................. Vice President and Secretary of BW
Acquisition Corp.; Vice President of Cambrex
Corp. since 1992; General Counsel and
Secretary of Cambrex Corp. since 1989.
Douglas H. MacMillan......................... Vice President, CFO, and Assistant Secretary
of BW Acquisition Corp.; Vice President and
CFO of Cambrex Corp. since April 1997; Vice
President and CFO of Morgan Products Ltd.
from 1991 to April 1997.
</TABLE>
S-3
<PAGE> 38
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each stockholder of the
Company or such stockholder's broker, dealer, bank, trust company or other
nominee to the Depositary at one of its addresses set forth below.
The Depositary for the Offer is:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C>
By Mail: By Hand:
ChaseMellon Shareholder Services, L.L.C. ChaseMellon Shareholder Services, L.L.C.
Reorganization Department Reorganization Department
P.O. Box 3305 120 Broadway
South Hackensack, NJ 07606 13th Floor
New York, NY 10271
By Overnight Courier: By Facsimile Transmission
ChaseMellon Shareholder Services, L.L.C. (for eligible institutions only):
Reorganization Department (201) 329-8936
85 Challenger Road, Mail Drop-Reorg
Ridgefield Park, NJ 07660 Confirm by Telephone: (201) 296-4860
</TABLE>
Questions and requests for assistance or for additional copies of this
Offer to Purchase, the Letter of Transmittal and the Notice of Guaranteed
Delivery may be directed to the Information Agent or the Dealer Manager at their
respective telephone numbers and locations listed below. You may also contact
your broker, dealer, bank, trust company or other nominee for assistance
concerning the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, NY 10005
(212) 269-5550 (call collect)
Toll Free (800) 290-6426
The Dealer Manager for the Offer is:
SCHRODER & CO. INC.
Equitable Center
787 Seventh Avenue
New York, NY 10019
(212) 492-6000 (call collect)
<PAGE> 1
EXHIBIT 11 (c)(1)
================================================================================
AGREEMENT AND PLAN OF MERGER
AMONG
CAMBREX CORPORATION
BW ACQUISITION CORPORATION
BIOWHITTAKER, INC.
Dated as of August 22, 1997
================================================================================
<PAGE> 2
TABLE OF CONTENTS
Page
1. THE OFFER..........................................................2
2. THE MERGER.........................................................4
2.1 Merger......................................................4
2.2 Effect of Merger............................................5
2.3 Conversion of Shares........................................5
2.4 Stock Options...............................................5
2.5 Consummation of the Merger..................................6
2.6 Dissenters' Rights..........................................6
2.7 Payment for Shares and Options..............................7
2.8 Closing of the Company's Transfer Books.....................8
3. REPRESENTATIONS AND WARRANTIES.....................................9
3.1 Representations and Warranties of Parent and the Purchaser..9
3.2 Representations and Warranties of the Company..............11
4. COVENANTS.........................................................22
4.1 Acquisition Transactions...................................22
4.2 Interim Operations.........................................24
4.3 Access and Information.....................................26
4.4 Certain Filings, Consents and Arrangements.................26
4.5 Reasonable Best Efforts....................................26
4.6 Public Statements..........................................27
4.7 Stockholder Approval.......................................27
4.8 Stockholder Litigation.....................................29
4.9 Indemnification, Exculpation and Insurance.................29
4.10 Amendment of Rights Agreement..............................30
4.11 Borrowings under the Loan Agreement........................30
5. CONDITIONS........................................................30
5.1 Conditions to the Obligations of Parent, the Purchaser and
the Company ...............................................30
5.2 Conditions to the Obligations of Parent and the Purchaser..31
5.3 Conditions to the Obligations of the Company...............31
<PAGE> 3
6. MISCELLANEOUS.....................................................32
6.1 Termination................................................32
6.2 Non-Survival of Representations, Warranties and Agreements.34
6.3 Amendment and Waiver.......................................34
6.4 Entire Agreement...........................................34
6.5 Definitions................................................35
6.6 Applicable Law.............................................35
6.7 Headings...................................................35
6.8 Notices....................................................35
6.9 Counterparts...............................................36
6.10 Severability...............................................36
6.11 Parties in Interest; Assignment............................37
6.12 Fees and Expenses..........................................37
6.13 Specific Performance.......................................38
Annex A Certain Conditions of the Offer
Exhibit A Persons Party to the Stockholder Agreement
Schedule 2.2 Offices of the Surviving Corporation
ii
<PAGE> 4
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of August 22, 1997 by and among
Cambrex Corporation, a Delaware corporation ("Parent"), BW Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent (the
"Purchaser"), and BioWhittaker, Inc., a Delaware corporation (the "Company").
WHEREAS, the respective Boards of Directors of the Parent, the Purchaser
and the Company each has determined that it is fair to, and in the best
interests of, their respective stockholders for Parent to acquire the Company
pursuant to a merger (the "Merger") in which the Purchaser shall be merged with
and into the Company pursuant to this Agreement;
WHEREAS, as a condition of the willingness of the Parent to enter into
this Agreement, those Persons (as defined in Section 6.5) set forth on Exhibit A
hereto, as the holders of shares of the Company's Common Stock, par value $.01
per share (the "Common Stock"), have entered into two separate but substantially
identical Stockholder Agreements, each dated as of the date hereof
(collectively, the "Stockholder Agreement") with the Parent, which provide,
among other things, that, subject to the terms and conditions thereof, each such
Person will tender such Person's shares of Common Stock in the Offer (as defined
below) and vote such shares of Common Stock in favor of the Merger and the
approval and adoption of this Agreement;
WHEREAS, as a condition of the willingness of the Parent to enter into
this Agreement (i) the participants of the BioWhittaker, Inc. Supplemental
Executive Retirement Plan (the "SERP") have executed an agreement consenting to
the termination of the rabbi trust established under the SERP (the "Trust")
prior to the payment of any benefits under such Trust and the establishment of a
new rabbi trust which was funded prior to execution to this Agreement by the
Company with 120,344 shares of Common Stock, (ii) pursuant to that agreement,
the other 179,656 shares of Common Stock previously held by the Trust will be
returned to the Company and will be canceled and (iii) all other amounts accrued
or contributed to the Trust pursuant to Article V of the SERP will be
transferred to the new rabbi trust;
WHEREAS, in furtherance thereof, the Parent proposes that the Purchaser
make an offer to purchase for cash all of the issued and outstanding shares of
Common Stock of the Company, and all associated rights, at a price of $11.625
per share net to the seller;
<PAGE> 5
WHEREAS, the Boards of Directors of the Parent, the Purchaser and the
Company have approved the Merger following the expiration of such offer, upon
the terms and subject to the conditions set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties agree as follows:
1. THE OFFER
1.1 The Offer. (a) As promptly as practicable, but in no event later
than five business days after the public announcement of the execution of this
Agreement, the Purchaser shall, and the Parent shall cause the Purchaser to,
commence a tender offer (the "Offer") to purchase for cash all of the issued and
outstanding shares of Common Stock (the "Shares"), together with the associated
rights, if any, to purchase Series A participating Cumulative Preferred Stock,
par value $.01 per share ("Series A Shares"; and together with the Shares, the
"Securities") at a price of not less than $11.625 per Security net to the seller
in cash; it being understood that the Offer will not apply to the 179,656 Shares
(or associated rights) previously held by the Trust which are being returned to
the Company and canceled as described in the third recital to this Agreement.
The obligations of the Purchaser and the Parent to consummate the Offer and to
accept for payment and purchase the Securities tendered shall be subject only to
the conditions set forth in Annex A hereto. The Purchaser shall not without the
Company's prior written consent reduce the price per Security or the number of
Securities sought to be purchased or modify the form of consideration to be
received by holders of the Securities in the Offer, increase the condition (the
"Minimum Condition") set forth in clause (i) of the first sentence of Annex A
hereto, impose additional conditions to the Offer or amend any term of the Offer
in a manner materially adverse to the holders of the Securities. Subject only to
the conditions of the Offer set forth in Annex A, the Purchaser shall, and the
Parent shall cause the Purchaser to, pay for all of the Securities validly
tendered and not withdrawn pursuant to the Offer as soon as legally permissible.
(b) As soon as practicable on the date the Offer is commenced, the
Parent and the Purchaser will file with the Securities and Exchange Commission
(the "Commission") a Tender Offer Statement on Schedule 14D-1 (together with
all supplements or amendments thereto, and including all exhibits, the "Offer
Documents"). The Parent and the Purchaser shall give the Company and its counsel
a reasonable opportunity to review the Offer Documents prior to the filing of
the Offer Documents with the Commission or to the dissemination of the Offer
Documents to the stockholders of the
2
<PAGE> 6
Company. The Parent and the Purchaser will furnish the Company and its counsel
in writing with any comments that the Parent, the Purchaser or their counsel may
receive from the Commission or its staff with respect to the Offer Documents,
promptly after receipt of such comments.
1.2 Company Action. (a) In connection with the Offer, the Company shall
cause its transfer agent to furnish the Purchaser with mailing labels, security
position listings and any available listings or computer files containing the
names and addresses of record holders of the Shares as of a recent date, and
shall furnish to the Purchaser such information and assistance as the Parent or
the Purchaser may reasonably request in communicating the Offer to the Company's
stockholders. Except for such steps as are necessary to disseminate the Offer
Documents, Parent and the Purchaser shall hold in confidence the information
contained in such labels, listings and filings, will use such information only
in connection with the Offer and, if this Agreement is terminated, will, upon
the request of the Company deliver or cause to be delivered to the Company all
copies of such information then in its possession or in the possession of its
agents or representatives.
(b) The Company hereby consents to the Offer and represents that the
Board of Directors of the Company (at a meeting duly called and held at which a
quorum was present) as part of its approval of this Agreement has (i) approved
the making of the Offer, (ii) determined that each of the Offer and the Merger
is fair to and in the best interests of the stockholders of the Company and
(iii) resolved to recommend acceptance of the Offer and approval and adoption of
this Agreement by the stockholders of the Company (to the extent such approval
and adoption is required by applicable law). Promptly after the commencement of
the Offer, the Company shall file a Tender Offer Solicitation/Recommendation
Statement on Schedule 14D-9 (together with any amendments or supplements
thereto, and including all exhibits, the "Schedule 14D-9") with respect to the
Offer which shall contain the recommendations of the Board of Directors in favor
of the Offer, the Merger and the Agreement, except to the extent that the Board
of Directors of the Company shall have withdrawn or modified its approval of the
Offer, the Merger and this Agreement in accordance with Section 4.1(b).
1.3 Board of Directors. (a) Promptly upon the purchase by the Purchaser
of the Securities pursuant to the Offer and from time to time thereafter, the
Purchaser shall be entitled to designate up to the minimum number of directors
necessary in order for the result (expressed as a fraction) derived by dividing
the number of directors so designated by the total number of directors to be at
least equal to the result (expressed as a fraction) derived by dividing the
Shares then held by the Purchaser by the total number of Shares then
outstanding; provided, however, that until the Effective Time
3
<PAGE> 7
(as defined in Section 2.5 hereof) the Board of Directors will have at least two
Independent Directors (as defined in Section 1.3(c) hereof). Upon request by the
Purchaser, the Company shall use its best efforts promptly, at the Company's
election, either to increase the size of the Board or to secure the resignation
of such number of directors as is necessary to enable the Purchaser's designees
to be elected to the Board, and to cause the Purchaser's designees to be so
elected.
(b) The Company's obligations with respect to the election of the
Purchaser's designees to the Board of Directors of the Company shall be subject
to Section 14(f) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Rule 14f-1 promulgated thereunder. The Company shall
promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in
order to fulfill its obligations under this Section 1.3 and shall include in the
Schedule 14D-9 such information with respect to the Company and its officers and
directors as is required under Section 14(f) and Rule 14f-1. The Parent and the
Purchaser will supply to the Company in writing and shall be solely responsible
for any information with respect to any of them and their nominees, officers,
directors and affiliates required by Section 14(f) and Rule 14f-1.
(c) Following the election or appointment of the Purchaser's designees
pursuant to this Section 1.3 and prior to the Effective Time, any amendment to
this Agreement or of the Certificate of Incorporation or By-Laws of the Company,
any termination of this Agreement by the Company, any extension by the Company
of the time for the performance of any of the obligations or other acts of the
Parent or the Purchaser and any waiver of any of the Company's rights under this
Agreement will require the concurrence of a majority of the directors of the
Company then in office who are (i) not designated by the Purchaser nor otherwise
affiliated with the Parent or the Purchaser, (ii) are not employees or the
Chairman of the Company or any of its subsidiaries and (iii) are not affiliated
with Anasco GmbH (the "Independent Directors").
2. THE MERGER
2.1 Merger. Upon the terms and subject to the conditions of this
Agreement, and in accordance with the applicable provisions of the Delaware
General Corporation Law ("DGCL"), as promptly as practicable following the
consummation of the Offer, the Purchaser shall be merged with and into the
Company. The Company shall be the surviving corporation in the Merger (sometimes
referred to as the "Surviving Corporation") and shall continue its existence
under the laws of the State of Delaware.
4
<PAGE> 8
The separate existence of the Purchaser shall cease. The name of the Surviving
Corporation shall be "BioWhittaker, Inc."
2.2 Effect of Merger. The Certificate of Incorporation and the Bylaws of
the Company in effect upon consummation of the Merger shall be the Certificate
of Incorporation and Bylaws of the Surviving Corporation. The directors of the
Purchaser immediately prior to the Effective Time (as defined in Section 2.5)
shall be the directors of the Surviving Corporation, and the officers set forth
on Schedule 2.2 hereto shall be the officers of the Surviving Corporation, in
each case until their respective successors are duly elected and qualified. The
Merger shall have the effects set forth in Section 259 of the DGCL.
2.3 Conversion of Shares. Merger Consideration. At the Effective Time,
by virtue of the Merger and without any action on the part of any holder
thereof: (a) each Share, together with the associated right, if any, to purchase
Series A Shares or other securities of the Company pursuant to the Stockholder
Protection Rights Agreement dated January 20, 1995 between the Company and Bank
of Boston, as Rights Agent (the "Rights Agreement"), issued and outstanding
immediately prior to the Effective Time (other than Shares to be canceled
pursuant to clause (b) below and any Dissenting Shares (as defined in Section
2.6)) shall be converted into the right to receive in cash an amount per Share
equal to the Merger Consideration (as defined below), subject to any required
withholding of taxes and without interest; (b) each Share (together with all
associated Series A Shares) owned by Parent, the Purchaser or any other direct
or indirect subsidiary of Parent, or held in the treasury of the Company,
immediately prior to the Effective Time, shall be canceled and extinguished, and
no payment will be made with respect to those Shares; and (c) all shares of
common stock of the Purchaser, par value $.01 per share, then issued and
outstanding shall be converted into an equal number of shares of common stock of
the Surviving Corporation. "Merger Consideration" means (I) $138,948,952, or
such greater price divided by (II) the total number of Shares outstanding on a
fully diluted basis as of immediately prior to the Effective Time, assuming the
exercise of all outstanding Options (as defined below) and including all Shares
acquired by Parent or the Purchaser in the Offer.
2.4 Stock Options. Immediately prior to the Effective Time, each then
outstanding option to purchase Shares, whether or not then exercisable,
including any options granted under the 1994 Stock Option Plan for Non-Employee
Directors (collectively, the "Options"), shall be canceled by the Company in
exchange for a right to receive a payment in cash in accordance with Section
2.7(b) (the "Option Consideration") equal to the product of (i) the number of
Shares previously subject to the Option and (ii) the excess, if any, of the
Merger Consideration over the exercise price for each Share
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<PAGE> 9
under such Option. As of the Effective Time, each holder of an Option will be
entitled to receive only an amount equal to the Option Consideration. All
amounts payable under this Section 2.4 shall be subject to any required
withholding of taxes and shall be paid without interest. Effective as of the
Effective Time and subject to payment of the Option Consideration, the Company
shall cause each stock option or other equity based plan maintained with respect
to any Shares (or rights in respect thereof) (other than the BioWhittaker, Inc.
Savings and Stock Investment Plan (the "BSSIP") and the BioWhittaker, Inc.
Supplemental Executive Retirement Plan (the "SERP")) to be terminated.
2.5 Consummation of the Merger. Upon the terms and subject to the con-
ditions of this Agreement, the Company shall execute in the manner required by
the DGCL, and deliver to the Secretary of State of the State of Delaware, a duly
executed certificate of merger as required by the DGCL, and the parties shall
take all such other and further actions as may be required by law to make the
Merger effective. Prior to the filing referred to in this Section 2.5, a closing
will be held at the offices of Debevoise & Plimpton, 875 Third Avenue, New York,
New York, on the third business day following the satisfaction of the condition
set forth in Section 5.1(c) hereof (or, in the event the Purchaser shall acquire
at least 90% of the outstanding Shares in the Offer, on the tenth business day
following the completion of the Offer) (or such other time as the Purchaser and
the Company may agree, immediately after the conditions set forth in Article V
have been satisfied or waived) for the purpose of confirming all of the
foregoing. The time the Merger becomes effective in accordance with applicable
law is referred to as the "Effective Time".
2.6 Dissenters' Rights. Notwithstanding any provision of this Agreement
to the contrary, any shares of capital stock of the Company outstanding
immediately prior to the Effective Time held by a holder who has demanded and
perfected the right, if any, for appraisal of those shares in accordance with
the provisions of Section 262 of the DGCL and as of the Effective Time has not
withdrawn or lost such right to such appraisal ("Dissenting Shares") shall not
be converted into or represent a right to receive the consideration set forth in
Section 2.3, but the holder shall only be entitled to such rights as are granted
by the DGCL. If a holder of shares of capital stock of the Company who demands
appraisal of those shares under the DGCL shall effectively withdraw or lose
(through failure to perfect or otherwise) the right to appraisal, then, as of
the Effective Time or the occurrence of such event, whichever last occurs, those
shares shall be converted into and represent only the right to receive the
consideration as provided in Section 2.3, without interest, upon the surrender
of the certificate or certificates representing those shares. The Company shall
give the Parent (i) prompt notice of any written demands for appraisal of any
shares of capital stock of the
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<PAGE> 10
Company, attempted withdrawals of such demands, and any other instruments served
pursuant to the DGCL received by the Company relating to stockholders' rights of
appraisal and (ii) the opportunity to direct all negotiations and proceedings
with respect to demands for appraisal under the DGCL. The Company shall not,
except with the prior written consent of Parent, voluntarily make any payment
with respect to any demands for appraisals of capital stock of the Company,
offer to settle or settle any such demands or approve any withdrawal of any such
demands.
2.7 Payment for Shares and Options. (a) Shares. Prior to the Effective
Time, the Purchaser shall designate a commercial bank or trust company organized
under the laws of the United States or any state of the United States with
capital, surplus and undivided profits of at least $500,000,000 to act as Paying
Agent with respect to the Merger (the "Paying Agent"). Each holder (other than
Parent, the Purchaser or any subsidiary of Parent) of a certificate or
certificates (the "Certificates") which immediately prior to the Effective Time
represented outstanding Shares will be entitled to receive, upon surrender to
the Paying Agent of the Certificates for cancellation, cash in an amount equal
to the product of the number of Shares previously represented by the
Certificates multiplied by the Merger Consideration, subject to any required
withholding of taxes. At or prior to the Effective Time, the Purchaser shall
make available to the Paying Agent sufficient funds to make all payments
pursuant to the preceding sentence. No interest shall accrue or be paid on the
cash payable upon the surrender of the Certificates. If payment is to be made to
a person other than the person in whose name the Certificates surrendered are
registered, it shall be a condition of payment that the Certificates so
surrendered shall be properly endorsed or otherwise in proper form for transfer
and that the person requesting the payment shall pay any transfer or other taxes
required by reason of the payment to a person other than the registered holder
of the Certificates surrendered or establish to the satisfaction of the
Surviving Corporation that the tax has been paid or is not applicable. Following
the Effective Time, until surrendered to the Paying Agent in accordance with the
provisions of this Section 2.7(a), each Certificate shall represent for all
purposes only the right to receive upon surrender thereof the Merger
Consideration multiplied by the number of Shares evidenced by the Certificate,
without any interest, subject to any required withholding taxes. Any funds
delivered or made available to the Paying Agent pursuant to this Section 2.7(a)
and not exchanged for Certificates within six months after the Effective Time
will be returned by the Paying Agent to the Surviving Corporation, which
thereafter will act as Paying Agent, subject to the rights of holders of
unsurrendered Certificates under this Section 2.7(a), and any former
stockholders of the Company who have not previously exchanged their Certificates
will thereafter be entitled to look only to the Surviving Corporation for
payment of their claim for the consideration set forth in Section 2.3, without
any interest, but will have no greater
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<PAGE> 11
rights against the Surviving Corporation than may be accorded to general
creditors thereof under applicable law. Notwithstanding the foregoing, neither
the Paying Agent nor any party hereto shall be liable to a holder of Shares for
any cash or interest delivered to a public official pursuant to applicable
abandoned property, escheat or similar laws. If any Certificates shall not have
been surrendered prior to three years after the Effective Time (or immediately
prior to such earlier date on which any payment in respect hereof would
otherwise escheat to or become the property of any governmental unit or agency),
the payment in respect of such Certificates shall, to the extent permitted by
applicable laws, become the property of the Surviving Corporation, free and
clear of all claims of interest of any person previously entitled thereto. As
soon as practicable after the Effective Time, the Surviving Corporation will
cause the Paying Agent to mail to each record holder of Certificates a form of
letter of transmittal (which will specify that delivery will be effected, and
risk of loss and title to the Certificates will pass, only upon proper delivery
of the Certificates to the Paying Agent) and instructions for use in effecting
the surrender of the Certificates for payment.
(b) Options. Each holder of an Option, whether or not then exercisable,
will be entitled to receive cash in an amount equal to the Option Consideration
in respect of such Options (determined in accordance with Section 2.4 hereof),
subject to any required withholding taxes and without interest. As soon as
practicable after the Effective Time, and in any event no more than fifteen (15)
calendar days following the Effective Time, the Surviving Corporation shall
instruct the Paying Agent to pay, and the Paying Agent shall so pay, all amounts
due as Option Consideration to holders of Options as required by this Agreement.
2.8 Closing of the Company's Transfer Books. At the Effective Time, the
stock transfer books of the Company shall be closed and no transfer of Shares
converted into the right to receive the Merger Consideration pursuant to the
terms hereof, Dissenting Shares or Shares to be canceled pursuant to Section 2.3
hereof shall thereafter be made. If, after the Effective Time, Certificates for
such Shares are presented to the Surviving Corporation, they shall be canceled
and exchanged for cash or merely canceled, as the case may be, pursuant to and
in accordance with Sections 2.3, 2.6 and 2.7 hereof, subject to applicable law
in the case of Dissenting Shares.
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<PAGE> 12
3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Parent and the Purchaser. The
Parent and the Purchaser represent and warrant to the Company that:
(a) Corporate Organization. Each of the Parent and the Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power to carry
on its business as it is now being conducted; provided, however, that since
it was incorporated, the Purchaser has not engaged in any business other
than organizational matters and matters relating to the Offer and this
Agreement. Parent owns all of the issued and outstanding capital stock of
the Purchaser and all such stock has been validly issued and is fully paid
and nonassessable and is owned by the Parent free and clear of all pledges,
claims, liens, charges, encumbrances and security interests of any kind or
nature whatsoever (collectively, "Liens"). Each of Parent and the Purchaser
is qualified to do business and is in good standing in each jurisdiction in
which the properties owned, leased or operated by it or the nature of the
business conducted by it makes such qualification necessary, except where
the failure to be so qualified and in good standing would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect on Parent. "Material Adverse Effect" means, with respect to any
person or entity, a material adverse effect on the business, assets,
liabilities, operations or condition (financial or otherwise) of such person
or entity and its subsidiaries, taken as a whole. True, accurate and
complete copies of the Parent's and the Purchaser's Certificates of
Incorporation and Bylaws, in each case as in effect on the date hereof,
including all amendments thereto, have heretofore been made available to the
Company.
(b) Authority. Each of Parent and the Purchaser has the requisite
corporate power and authority to execute and deliver this Agreement and to
carry out their respective obligations pursuant hereto. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate or
other action on the part of each of Parent and the Purchaser. This Agreement
has been duly executed by Parent and the Purchaser and, assuming due
authorization, execution and delivery by the Company, constitutes a valid
and binding obligation of each of them, enforceable against each of them in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally or by general principles of
equity. No other corporate actions or proceedings on the part of Parent or
the Purchaser are necessary to authorize this Agreement, the consummation,
by either of them, of
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<PAGE> 13
the transactions contemplated hereby or the discharge, by either of them, of
their respective obligations pursuant hereto.
(c) Consents; No Violation. None of the execution and delivery of this
Agreement by Parent or the Purchaser, the consummation by each of them of
the transactions contemplated by this Agreement or the discharge, by either
of them, of its respective obligations hereunder will (i) conflict with, or
result in any breach or violation of, any provision of the Parent's or the
Purchaser's Certificate of Incorporation or By-laws; (ii) constitute, with
or without notice, the passage of time or both, a breach, violation or
default, create a lien, or give rise to any right of termination,
modification, cancellation, prepayment, acceleration or loss of material
benefit under any law, order, judgment, writ, injunction, decree, statute,
rule or regulation, governmental permit or license (collectively "Laws"), or
any mortgage, indenture, lease, license, agreement or other instrument of
Parent, the Purchaser or any of their respective subsidiaries, or to which
Parent, the Purchaser or any of their respective subsidiaries or any of
their respective properties is subject, except for breaches, violations,
defaults, liens, or rights of termination, modification, cancellation,
prepayment or acceleration which would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect on
Parent or materially adversely affect the ability of Parent or the Purchaser
to consummate the transactions contemplated hereby; or (iii) require any
consent, approval or authorization of, notification to, or filing with, any
court, govern mental agency or regulatory or administrative authority,
foreign or domestic (each, a "Governmental Entity") or any third party, on
the part of Parent or the Purchaser, other than (w) the filing of a
certificate of merger with respect to the Merger in accordance with the
DGCL, (x) any applicable filings under federal or state securities, "Blue
Sky" or state anti-takeover laws, (y) filings required pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and (z) consents, approvals, authorizations, notifications or
filings the failure of which to be obtained or made would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect on the Parent or materially adversely affect the ability of the
Parent or the Purchaser to consummate the transactions contemplated hereby.
(d) Offer Documents; Schedule 14D-9. None of the Offer Documents will,
on the date filed with the Commission or on the date first published, sent
or given to the Company's stockholders, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that the foregoing shall not apply to the
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<PAGE> 14
extent that any such untrue statement of a material fact or omission to
state a material fact was made by the Parent or the Purchaser in reliance
upon and in conformity with written information furnished to the Parent or
the Purchaser by the Company specifically for use in the Offer Documents.
The Offer Documents will comply in all material respects, both as to form
and otherwise, with the requirements of the Exchange Act and the rules and
regulations thereunder. None of the information supplied or to be supplied
in writing by the Parent or the Purchaser specifically for inclusion in the
Schedule 14D-9 will, at the time the Schedule 14D-9 is filed with the
Commission, contain any untrue statement of a material fact, or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(e) Financing. Parent and the Purchaser, collectively, have sufficient
funds available to pay the aggregate Merger Consideration and Option
Consideration contemplated by this Agreement and to pay all of its fees and
expenses related to the transactions contemplated hereby.
(f) No Other Representations or Warranties. Except for the
representations and warranties contained in this Section 3.1, none of
Parent, the Purchaser or any other Person makes any other express or implied
representation or warranty on behalf of Parent, the Purchaser or any of
their respective affiliates.
3.2 Representations and Warranties of the Company. The Company repre-
sents and warrants to Parent and the Purchaser that:
(a) Corporate Organization. Each of the Company and each of its sub-
sidiaries is a corporation duly organized, validly existing and, except as
otherwise indicated on the Disclosure Schedule, is in good standing under
the laws of the jurisdiction in which it is incorporated and has the
requisite corporate power to own, lease and operate its properties and
assets and to carry on its businesses as they are now being conducted. The
Company has delivered to Parent copies of the Certificates of Incorporation
and By-laws, as amended to this date, of the Company and each of its
subsidiaries, which Certificates and By-laws are in full force and effect.
(b) Capitalization. The authorized capital stock of the Company consists
of 40,000,000 Shares, and 5,000,000 shares of Preferred Stock, par value
$.01 per share, of which 150,000 shares have been designated Series A
Participating Cumulative Preferred Stock. As of the date hereof (and
assuming the return and
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<PAGE> 15
cancellation of the 179,656 Shares previously held by the Trust, as
described in the third recital to this Agreement), (i) 10,881,210 Shares are
issued and outstanding, all of which are validly issued, fully paid and
nonassessable and not subject to preemptive rights except as described on
the Disclosure Schedule delivered by the Company to Parent on the date
hereof (the "Disclosure Schedule"); (ii) 179,656 Shares are held in the
treasury of the Company as treasury stock; (iii) there are outstanding
Options to purchase an aggregate of 1,071,388 Shares; and (iv) there are no
outstanding Series A Shares. Except as set forth on the Disclosure Schedule,
there are no stock appreciation rights outstanding. The Disclosure Schedule
sets forth a list, complete and correct as of the date hereof, of the
holders of all Options and the number of Shares issuable upon the exercise
of each such Option and the exercise prices thereof. There are no bonds,
debentures, notes or other indebtedness of the Company having the right to
vote (or convertible into, or exchangeable for, securities having the right
to vote) on any matters on which stockholders of the Company may vote.
Except as set forth in this Section 3.2(b) or on the Disclosure Schedule, no
shares of capital stock or other voting securities are issued, reserved for
issuance or outstanding, nor are there any outstanding subscriptions,
options, warrants, rights, convertible securities or other agreements or
commitments of any character relating to the issued or unissued capital
stock or other securities of the Company or any of its subsidiaries
obligating the Company or any of its subsidiaries to issue, deliver, sell or
purchase, or cause to be issued, delivered, sold or purchased, any
securities of the Company or any of its subsidiaries. Except as set forth
on the Disclosure Schedule, there are no voting trusts or other agreements
or understandings to which the Company or any of its subsidiaries is a party
with respect to the voting of capital stock of the Company or any of its
subsidiaries.
(c) Subsidiaries. The Disclosure Schedule sets forth a list, true and
complete as of the date hereof, of all of the subsidiaries of the Company.
All of the out standing shares of capital stock of each subsidiary of the
Company have been validly issued and are fully paid and nonassessable and
are owned by the Company or by a subsidiary of the Company are free and
clear of any Liens. Except for the capital stock of its subsidiaries or as
set forth on the Disclosure Schedule, as of the date hereof, the Company
does not own, directly or indirectly, any capital stock or other ownership
interest in any corporation, limited liability company, partnership, joint
venture or other entity.
(d) Authority. The Company has the requisite corporate power and
authority to execute and deliver this Agreement and to carry out its
obligations pursuant hereto. The execution and delivery of this Agreement
and the consummation of
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<PAGE> 16
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company, subject only, to the
extent required by law, to approval by the stockholders of the Company as
provided in Section 4.7 or as set forth on the Disclosure Schedule. This
Agreement has been duly executed and delivered by, and, assuming due
authorization, execution and delivery by Parent and the Purchaser,
constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as 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. Except as set forth on the Disclosure Schedule and for
the approval by the stockholders of the Company as provided in Section 4.7,
no other corporate actions or proceedings on the part of the Company or its
stockholders are necessary to authorize this Agreement, the Offer, the
Merger or the consummation of the transactions contemplated hereby or its
discharge of its obligations pursuant hereto.
(e) Consents; No Violation. None of the execution and delivery of this
Agreement by the Company, the consummation of the transactions contemplated
hereby or the discharge of its obligations hereunder will, except as set
forth on the Disclosure Schedule (i) conflict with, or result in a breach or
a violation of, any provision of the Certificate of Incorporation or By-laws
of the Company or any of its subsidiaries; (ii) constitute, with or without
notice, the passage of time or both, a breach, violation or default, create
a Lien, or give rise to any right of termination, modification,
cancellation, prepayment, acceleration or the loss of any material benefit
under any Laws or any mortgage, indenture, lease, license, agreement or
other instrument of the Company or any of its subsidiaries, or to which the
Company or any of its subsidiaries or any of their respective properties is
subject, except for breaches, violations, defaults, liens, or rights of
termination, modification, cancellation, prepayment or acceleration which
would not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect on the Company or materially adversely affect the
ability of the Company to consummate the transactions contemplated hereby;
or (iii) require any consent, approval or authorization of, notification to,
or filing with, any Governmental Entity or from any other third parties, on
the part of the Company or any of its subsidiaries other than (v) required
consents identified on the Disclosure Schedule, (w) the filing of a
certificate of merger with respect to the Merger in accordance with the
DGCL, (x) filings required under the HSR Act, (y) any applicable filings
under federal and state securities laws or state anti-takeover laws, and (z)
consents, approvals, authorizations, notifications or filings the failure of
which to be obtained or made would not reasonably be expected, individually
or in the aggregate, to have a
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<PAGE> 17
Material Adverse Effect on the Company or materially adversely effect the
ability of the Company to consummate the transactions contemplated hereby.
(f) SEC Reports; Company Assets and Liabilities. The Company has filed
all forms, reports, statements and schedules with the Commission required to
be filed pursuant to the Exchange Act, and the Commission Rules, since
January 1, 1995 (the "SEC Reports"). As of their respective filing dates,
the SEC Reports complied in all material respects with all applicable
requirements of the Exchange Act and the Commission Rules applicable to such
SEC Reports, and did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements made therein, in light of the circumstances
under which they were made, not misleading. The audited and unaudited
consolidated financial statements of the Company included (or incorporated
by reference) in the SEC Reports comply as to form in all material respects
with applicable accounting requirements and the published rules and
regulations of the Commission with respect thereto, have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis (except as stated in the financial statements, including
the related notes, and except that the quarterly financial statements do not
contain all of the footnote disclosures required by generally accepted
accounting principles) and fairly present, in all material respects, the
financial position of the Company and its consolidated subsidiaries as of
the respective dates thereof and the results of their operations,
stockholders' equity and cash flows for the periods then ended, subject, in
the case of the unaudited financial statements, to normal year-end
adjustments and any other adjustments described therein. Except for
liabilities and obligations incurred in the ordinary course of business
consistent with past practices since the date of the most recent
consolidated balance sheet included in the SEC Reports, neither the Company
nor any of its subsidiaries has incurred any material liabilities or
obligations of any nature (whether accrued, absolute, contingent or
otherwise) other than those reflected in the SEC Reports and on the
Disclosure Schedule and those incurred in connection with the transactions
contemplated hereby.
(g) No Material Adverse Change. Except as and to the extent disclosed in
the SEC Reports or as set forth in the Disclosure Schedule, since October
31, 1996, there has not been (i) any material adverse change in the
business, operations or condition (financial or other) of the Company and
its subsidiaries taken as a whole, (ii) any declaration, setting aside or
payment of any dividend or other distribution (whether in cash, stock or
property) with respect to any of the Company's capital stock, (iii) any
split, combination or reclassification of any of the Company's capital stock
or any issuance or the authorization of the issuance of any securities
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<PAGE> 18
in respect of or in substitution for shares of its capital stock, (iv) any
granting by the Company (x) to any executive officer or other key employee
of the Company of any increase in compensation, except for normal increases
in the ordinary course of business consistent with past practice or as
required under employment agreements in effect as of the date of the most
recent SEC Reports or set forth in the Disclosure Schedule or (y) to any
such executive officer of any increase in severance or termination pay,
except as was required under any employment, severance or termination
agreements in effect as of the date of the most recent SEC Reports or set
forth in the Disclosure Schedule, (v) any damage, destruction or loss,
whether or not covered by insurance, that could reasonably be expected to
have a Material Adverse Effect or (vi) except as may have been required by a
change in generally accepted accounting principles or as disclosed in the
SEC Reports, any change in accounting methods, principles or practices by
the Company or any of its subsidiaries materially affecting its assets,
liabilities or business.
(h) Offer Documents; Schedule 14D-9. None of the information supplied in
writing by the Company specifically for inclusion in the Offer Documents
will, at the respective times the Offer Documents or any amendments or
supplements thereto are filed with the Commission, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
Schedule 14D-9 on the date filed with the Commission will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing shall not apply to the
extent that any such untrue statement of a material fact or omission to
state a material fact was made by the Company in reliance upon and in
conformity with written information furnished to the Company by the Parent
or the Purchaser specifically for use in the Schedule 14D-9. The Schedule
14D-9 will comply in all material respects, both as to form and otherwise,
with the requirements of the Exchange Act and the rules and regulations
thereunder.
(i) Litigation. Except as disclosed in the SEC Reports or on the
Disclosure Schedule, there is no suit, action or proceeding pending or, to
the knowledge of the Company, threatened against or affecting the Company or
any of its subsidiaries that individually or in the aggregate would
reasonably be expected (i) to have a Material Adverse Effect on the Company,
(ii) as of the date hereof, to impair the ability of the Company to perform
its obligations under this Agreement in any material respect or (iii) as of
the date hereof, to delay in any material respect or
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<PAGE> 19
prevent the consummation of any of the transactions contemplated by this
Agreement, nor is there any judgment, decree, injunction, rule or order of
any Governmental Entity or arbitrator outstanding against the Company or
any of its subsidiaries having, or which would reasonably be expected to
have a Material Adverse Effect on the Company.
(j) Fees. Except as set forth on the Disclosure Schedule, neither the
Company nor any of its subsidiaries has paid or become obligated to pay any
fee or commission to any broker, finder or intermediary or other similar
Person in connection with the transactions contemplated hereby or in
connection with any other offer to acquire the Company's shares or assets.
(k) Certificate and By-laws. Neither the Certificate of Incorporation
nor the By-laws of the Company contains any provision that would require a
vote of the Company's stockholders in excess of a majority of the
outstanding shares of Company Common Stock in order to approve the Merger in
accordance with the terms of this Agreement.
(l) State Takeover Statutes. The Board of Directors of the Company has
approved the terms of this Agreement and the Stockholder Agreement and the
consummation of the Merger and the other transactions contemplated by this
Agreement and the Stockholder Agreement, and such approval is sufficient to
render inapplicable to the Merger and the other transactions contemplated by
this Agreement and the Stockholder Agreement the provisions of Section 203
of the DGCL. To the Company's knowledge, no state takeover statute or
similar statute or regulation applies or purports to apply to the Merger,
this Agreement or any of the transactions contemplated by this Agreement,
and except for the Rights Agreement and related Series A Shares, no
provision of the Certificate of Incorporation, By-laws or other governing
instruments of the Company or any of its subsidiaries would, directly or
indirectly, restrict or impair the ability of Parent to vote, or otherwise
to exercise the rights of a stockholder with respect to, shares of the
capital stock of Company and its subsidiaries that may be acquired or
controlled by Parent.
(m) Employee Benefit Plans: Employee Agreements. The Disclosure Schedule
sets forth a true and complete list of each employee benefit plan within the
meaning set forth in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") and each bonus, incentive, deferred
compensation, severance, termination, retention, change of control, stock
option or other equity-based performance or other compensation plan,
program, arrangement,
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<PAGE> 20
policy or understanding, whether written or unwritten, that is maintained by
the Company or any other Person that, together with the Company, is treated
as a single employer under Section 414 of the Internal Revenue Code of 1986,
as amended (the "Code") (each a "Commonly Controlled Entity"), or to which
the Company or any Commonly Controlled Entity contributes or is obligated or
required to contribute or with regard to which the Company or any of its
Commonly Controlled Entities has knowledge of any event, transaction or
condition that would reasonably be expected to result in any material
liability at the Effective Time (collectively, the "Plans"). Each employment
agreement to which the Company or any of its subsidiaries is a party, and
each employee benefit plan adopted by the Company or any of its
subsidiaries, which in either case becomes effective or grants rights to any
person upon a "change of control" of the Company is set forth in the
Disclosure Schedule. True and complete copies of each such Plan and the most
recent annual report on Form 5500 for each such Plan have been delivered to
the Purchaser.
Each Plan intended to be qualified under Section 401(a) of the Code and
the trust forming a part thereof has received a favorable determination
letter from the Internal Revenue Service (the "IRS") as to its qualification
under the Code and to the effect that each such trust is exempt from
taxation under Section 501(a) of the Code and the Company knows of no event
that has occurred since the date of such determination that would reasonably
be expected to adversely affect such qualification or tax-exempt status.
Except as set forth in the Disclosure Schedule, no material liability
has been or, to the knowledge of the Company, is expected to be incurred by
the Company or any Commonly Controlled Entity (either directly or
indirectly, including as a result of an indemnification obligation or any
joint and several liability obligations) as the result of a violation of
Title I of ERISA or an "accumulated funding deficiency" as defined in
Section 412 of the Code or Section 302 of ERISA or under or pursuant to
Title IV of ERISA or the penalty or excise tax provisions of Chapter 43 of
Subtitle D of the Code relating to employee benefit plans, and the Company
knows of no event, transaction or condition that has occurred or exists with
respect to the Company's employee benefit plans that would reasonably be
expected to result in any such material liability to the Purchaser, the
Surviving Corporation or any Commonly Controlled Entity or any employee
benefit plan of the Surviving Corporation or any Commonly Controlled Entity.
Except as otherwise set forth in the Disclosure Schedules, no benefit
that is payable, or which may become payable as a result of the transactions
contemplated
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hereunder, to any employee pursuant to any Plan shall constitute an "excess
parachute payment" (as defined in Section 280G(b)(1) of the Code) which is
subject to the imposition of an excise tax under Section 4999 of the Code or
which would not be deductible by reason of Section 280G of the Code.
(n) Compliance with Applicable Laws. Except as disclosed in the SEC
Reports, the Company and each of its subsidiaries has in effect all Federal,
state and local governmental approvals, authorizations, certificates,
filings, franchises, licenses, notices, permits and rights ("Permits")
necessary for it to own, lease or operate its properties and assets and to
carry on its business as now conducted, and there has occurred no default
under any such Permit, except for the lack of Permits and for defaults under
Permits which lack of, or default under, individually or in the aggregate
would not have a Material Adverse Effect on the Company. Except as disclosed
in the SEC Reports, the Company and its subsidiaries are in compliance with
all applicable statutes, laws, ordinances, rules, orders and regulations of
any Governmental Entity, except for possible noncompliance which,
individually or in the aggregate, would not have a Material Adverse Effect
on the Company.
(o) Contracts; Debt Instruments. Except as set forth on the Disclosure
Schedules, (i) neither the Company nor any of its subsidiaries is in
violation of or in default under (nor to the knowledge of the Company does
there exist any condition which upon the passage of time, the giving of
notice or both would cause such a violation of or default under) any loan or
credit agreement, note, bond, mortgage, indenture, lease, permit,
concession, franchise, license or any other contract, agreement, arrangement
or understanding to which it is a party or by which it or any of its
properties or assets is bound, except for violations or defaults that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on the Company.
(ii) The Company has made available to Parent (x) true and correct
copies of all loan or credit agreements, notes, bonds, mortgages, indentures
and other agreements and instruments pursuant to which any indebtedness of
the Company or any of its subsidiaries in an aggregate principal amount in
excess of $500,000 is outstanding or may be incurred and (y) accurate
information regarding the respective principal amounts currently outstanding
thereunder. For purposes of this Agreement, "indebtedness" shall mean, with
respect to any Person, without duplication, (A) all obligations of such
Person for borrowed money, or with respect to deposits or advances of any
kind to such Person, (B) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (C) all obligations of
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<PAGE> 22
such Person under conditional sale or other title retention agreements
relating to property purchased by such Person, (D) all obligations of such
Person issued or assumed as the deferred purchase price of property or
services (excluding obligations of such Person to creditors for raw
materials, inventory, services and supplies incurred in the ordinary course
of such Person's business), (E) all capitalized lease obligations of such
Person, (F) all obligations of others secured by any Lien on property or
assets owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (G) all obligations of such Person under
interest rate or currency hedging transactions (valued at the termination
value thereof), (H) all letters of credit issued for the account of such
Person and (I) all guarantees and arrangements having the economic effect of
a guarantee of such Person of any indebtedness of any other person.
(p) Taxes and Tax Returns. Except as set forth in the SEC Reports or on
the Disclosure Schedule: (i) all material tax returns, declarations,
reports, estimates, information returns and statements required to be filed
with respect to Taxes (as defined herein) under Federal, state, local or
foreign laws ("Returns") by or with respect to the Company or any subsidiary
of the Company have been timely filed (taking into account any extensions of
time for filing such Returns); (ii) at the time filed, such Returns were
true, correct and complete in all material respects; (iii) the Company and
each subsidiary of the Company has timely paid or made provision in
accordance with generally accepted accounting principles (or there has been
paid or provision has been made on its behalf) for all material Taxes for
all periods or portions thereof through the date hereof; (iv) there are no
material liens for Taxes upon the assets of the Company or any subsidiary of
the Company which are not provided for in the most recent financial
statements included in the SEC Reports, except liens for Taxes not yet due;
(v) there are no material outstanding deficiencies for any Taxes proposed,
asserted or assessed against the Company or any subsidiary of the Company
which are not provided for in the most recent financial statements included
in the SEC Reports; (vi) there are no material Federal, state, local or
foreign audits or other administrative proceedings or judicial proceedings
presently pending with regard to any Taxes or Returns required to be filed
by or with respect to the Company or any of its subsidiaries; (vii) the
Company has filed a consolidated Return for Federal income tax purposes on
behalf of itself and all of its domestic subsidiaries as the common parent
corporation of an "affiliated group" (within the meaning of Section 1504(a)
of the Code) of which such subsidiaries are "includible corporations" in
such affiliated group within the meaning of Section 1504(b) of the Code;
(viii) the Internal Revenue Service has completed examinations of the
Federal income tax returns filed by or with respect to the Company (or the
statute of limitations for the assessment of Federal income taxes for such
period
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<PAGE> 23
has expired) for all periods through and including the Company's taxable
year ended October 31, 1994; (ix) none of the Company or any of its
subsidiaries has been a member of an "affiliated group" (as defined above),
or any similar affiliated, combined or consolidated group for state, local
or foreign tax purposes (other than a group the common parent of which is
the Company), or has any liability for the Taxes of any person (other than
the Company or its current subsidiaries) under Treasury Regulation Section
1.1502-6 or any similar provision of state, local or foreign law or as a
transferee, successor, by contract or otherwise; (x) the Company has not
(A) breached any covenant or representation contained in the Tax Agreement
between the Company and Whittaker Corporation, dated as of September 24,
1991, or the amendment thereto dated October 23, 1991 (collectively, the
"Tax Agreement") or (B) entered into any of the transactions described in
Section 2(c)(ii)(y) of the Tax Agreement and (xi) except as set forth in the
Disclosure Schedule, neither the Company nor any of its subsidiaries is a
party to any material tax sharing, tax indemnity or other agreement or
arrangement with respect to Taxes with any entity not included in the
Company's most recent financial statements included in the SEC Reports. For
purposes of this Agreement, "Taxes" means all income, gross income, gross
receipts, premium, sales, use, transfer, franchise, profits, withholding,
payroll, employment, excise, severance, property and windfall profits
taxes, and all other taxes, assessments or similar charges of any kind
whatsoever thereon or applicable thereto, together with any interest and any
penalties, additions to tax or additional amounts, in each case imposed by
any taxing authority (domestic or foreign) upon the Company or any
subsidiary of the Company, including, without limitation, all amounts
imposed as a result of being a member of any affiliated or combined group.
(q) Labor Matters. Neither the Company nor any of its subsidiaries is
the subject of any suit, action or proceeding which is pending or, to the
knowledge of the Company, threatened, asserting that the Company or any of
its subsidiaries has committed an unfair labor practice (within the meaning
of the National Labor Relations Act or applicable state statutes) or seeking
to compel the Company or any of its subsidiaries to bargain with any labor
organization as to wages and conditions of employment, in any such case,
that would reasonably expected to have a Material Adverse Effect on the
Company. No strike or other labor dispute involving the Company or any of
its subsidiaries is pending or, to the knowledge of the Company, threatened,
and, to the knowledge of the Company, there is no activity involving any
employees of the company or any of its subsidiaries seeking to certify a
collective bargaining unit or engaging in any other organizational activity,
except for any such dispute or activity which would not reasonably be
expected to have a Material Adverse Effect on the Company.
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(r) Environmental Matters. (i) Except as set forth on the Disclosure
Schedule or in the SEC Reports, the Company's and each of its subsidiaries'
operation and use of its respective assets, including its owned and leased
real property, are in compliance in all respects with all applicable Laws
relating to the protection of human health or the environment
("Environmental Laws"), except to the extent that any such noncompliance
would not have a Material Adverse Effect on the Company. The Company and
each of its subsidiaries has obtained all environmental, health and safety
permits necessary for the operation of its respective business as presently
conducted, and all such permits are in full force and effect and the Company
and each of its subsidiaries is in compliance in all respects with the terms
and conditions of each such permit, except, in each case, to the extent that
any failure to obtain a permit or any such noncompliance would not have a
Material Adverse Effect on the Company. Except as set forth on the
Disclosure Schedule, neither the Company nor any of its subsidiaries has
received any notice of, and, to the knowledge of the Company there is not,
any administrative or judicial investigation, proceeding or action with
respect to any material violation, alleged or proven, of Environmental Laws
by the Company or any its subsidiaries or otherwise involving their
respective owned or leased real property.
(ii) Except as set forth on the Disclosure Schedule, to the knowledge of
the Company, neither the Company nor any of its subsidiaries has taken or
failed to take any action that has resulted in or will result in any
liability or obligation relating to (x) the environmental conditions on,
under, or about the assets of the Company or any of its subsidiaries or any
of their respective owned or leased real property, or any properties owned,
leased, operated or used by the Company or any of its subsidiaries or any
predecessor of the Company or any of its subsidiaries at the present time or
in the past, including, without limitation, the air, soil and groundwater
conditions at such properties or (y) the past or present use, management,
handling, transport, treatment, generation, storage, disposal or release of
any Hazardous Substances (as defined in Section 6.5), except in the case of
clauses (x) and (y) above, to the extent such liability or obligation would
not have a Material Adverse Effect.
(s) Rights Agreement. The Board of Directors of the Company (at a
meeting duly called and held at which a quorum was present) as part of its
approval of this Agreement has resolved to amend (and the Company has caused
such amendments to become effective prior to the execution of this Agreement
and the Stockholder Agreement) the Rights Agreement so that (i) neither the
Parent, the Purchaser nor any of their respective affiliates shall
constitute an Acquiring Person for any purpose of the Rights Agreement and
(ii) neither the execution or delivery of this
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<PAGE> 25
Agreement or the Stockholders Agreement, nor the consummation of any or all
of the transactions contemplated by this Agreement or the Stockholders
Agreement, will trigger the exercisability of the Rights (as defined in the
Rights Agreement) or the separation of the Rights from the shares to which
they are attached, or cause the Distribution Date (as defined in the Rights
Agreement) to occur.
(t) Effectiveness of Waiver. The Company has waived the Company's rights
under the Stock Purchase Agreement, dated as of September 24, 1991, between
the Company and Anasco GmbH (the "Anasco Stock Purchase Agreement") so that
Anasco GmbH's execution or delivery of the Stockholders Agreement and its
consummation of the transactions contemplated by the Stockholders Agreement,
will not violate or breach any provision in the Anasco Stock Purchase
Agreement.
(u) Opinion of the Company's Financial Advisor. The Board of Directors
of the Company has received a written opinion from Alex. Brown & Sons
Incorporated ("Alex Brown") to the effect that, as of the date of this
Agreement, the consideration to be received in the Offer and the Merger by
the holders of Shares (other than Parent and its affiliates) is fair from a
financial point of view to such holders of Shares.
(v) No Other Representations or Warranties. Except for the
representations and warranties contained in this Section 3.2, neither the
Company nor any other Person makes any other express or implied
representation or warranty on behalf of the Company or any of its
affiliates.
4. COVENANTS
4.1 Acquisition Transactions. (a) After the date hereof and prior to the
Effective Time or earlier termination of this Agreement, unless Parent shall
otherwise agree in writing, the Company shall not, shall not permit any of its
subsidiaries to, and shall not authorize or permit any officer, director or
employee or any investment banker, attorney, accountant or other advisor or
representative of the Company or any of its subsidiaries to, directly or
indirectly, except as otherwise expressly permitted in this Section 4.1(a) or in
Section 4.1(b), (i) initiate, solicit, negotiate, encourage, or provide
confidential information to facilitate any proposal or offer to acquire all or
any substantial part of the business and properties of the Company and its
subsidiaries, taken as a whole, or beneficial ownership (as determined pursuant
to Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the capital
stock of the Company, whether by merger, purchase of assets, tender offer or
otherwise, whether
22
<PAGE> 26
for cash, securities or any other consideration or combination thereof (such
transactions being referred to herein as "Acquisition Transactions"), (ii) enter
into any agreement with respect to any Acquisition Transaction or give any
approval of the type referred to in Section 4.1(b) with respect to any
Acquisition Transaction or (iii) participate in any discussions regarding, or
take any other action to facilitate any inquiries or the making of any proposal
that constitutes or may reasonably be expected to lead to any Acquisition
Transaction. Notwithstanding the immediately preceding sentence, the Company and
its subsidiaries may, prior to the Company Stockholder Approval, in response to
any unsolicited proposal for an Acquisition Transaction, furnish information
concerning its business, properties or assets to the corporation, partnership,
person or other entity or group (a "Potential Acquiror") making such proposal
for an Acquisition Transaction and participate in negotiations with the
Potential Acquiror if (x) the Company's Board of Directors, after consultation
with one or more of its independent financial advisors, is of the reasonable
belief that such Potential Acquiror has the financial wherewithal to consummate
such an Acquisition Transaction, (y) the Company's Board of Directors reasonably
determines, after receiving advice from the Company's financial advisor, that
such Potential Acquiror has submitted a proposal for an Acquisition Transaction
that involves consideration to the Company's stockholders and other terms that
taken as a whole are superior to the Merger, and (z) based upon advice of
counsel to such effect, the Company's Board of Directors determines in good
faith that it is necessary to so furnish information and negotiate in order to
comply with its fiduciary duty to stockholders of the Company. In the event the
Company shall determine to provide any information as described above or shall
receive any offer of the type referred to in this Section 4.1 or shall receive
or become aware of any other proposal to acquire a substantial part of the
business and properties of the Company and its subsidiaries, taken as a whole,
or to acquire a substantial amount of capital stock of the Company, it shall
promptly inform Parent orally as to the fact that information is to be provided
and shall furnish to Parent the identity of the recipient of such information
and/or the proponent of any such offer or proposal and a description of the
material terms thereof. The Company will keep Parent fully informed of the
status and material details of any proposed Acquisition Transaction or other
transaction (including any material amendments or material proposed amendments
of any such proposed Acquisition Transaction or other transaction).
(b) Neither the Board of Directors of the Company nor any committee
thereof (x) shall withdraw or modify or propose to withdraw or modify, in any
manner adverse to Parent the approval of recommendation of such Board of
Directors or such committee of this Agreement, the Offer or the Merger or (y)
approve or recommend, or propose to approve or recommend, any proposal for an
Acquisition Transaction except, in each case, in connection with a Superior
Proposal (as defined in Section 6.5).
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4.2 Interim Operations. (a) During the period from the date of this
Agreement to the Effective Time, except as contemplated by this Agreement, as
expressly permitted by Section 4.1 or as otherwise approved in writing by the
Purchaser, the Company shall not and shall cause its subsidiaries not to:
(i) (x) declare, set aside or pay any dividends on, or make any other
distributions in respect of, any of its capital stock, other than
dividends and distributions by a direct or indirect wholly owned
subsidiary of the Company to its parent, (y) split, combine or
reclassify any of its capital stock or issue or authorize the issuance
of any other securities in respect of, in lieu of or in substitution for
shares of its capital stock or (z) purchase, redeem or otherwise acquire
any shares of capital stock of the Company or any of its subsidiaries or
any other securities thereof or any rights, warrants or options to
acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of
its capital stock, any other voting securities or any securities
convertible into, or any rights, warrants or options to acquire, any
such shares, voting securities or convertible securities, except upon
exercise of any Option;
(iii) amend its certificate of incorporation, by-laws or other
comparable organizational documents;
(iv) except as set forth on the Disclosure Schedule, acquire or agree
to acquire (x) by merging or consolidating with, or by purchasing a
substantial portion of the assets of, or by any other manner, any
business or any corporation, limited liability company, partnership,
joint venture, association or other business organization or division
thereof or (y) any assets that individually or in the aggregate are
material to the Company and its subsidiaries taken as a whole;
(v) except as set forth on the Disclosure Schedule, sell, lease,
license, mortgage or otherwise encumber or subject to any Lien or
otherwise dispose of any of its properties or assets, other than in the
ordinary course of business consistent with past practice, that are
material to the Company and its subsidiaries taken as a whole;
(vi) incur any indebtedness, except for borrowings for working
capital purposes not in excess of $500,000 at any one time outstanding
incurred in the ordinary course of business consistent with past
practice and except for inter-
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<PAGE> 28
company indebtedness between the Company and any of its wholly-owned
subsidiaries or between such wholly-owned subsidiaries, or make any
loans, advances or capital contributions to, or investments in, any
other person, other than to the Company or any direct or indirect wholly
owned subsidiary of the Company;
(vii) except as set forth on the Disclosure Schedule, make or agree
to make any new capital expenditure or capital expenditures which in the
aggregate are in excess of $250,000;
(viii) make any tax election that could reasonably be expected to
have a Material Adverse Effect on the Company or settle or compromise
any material income tax liability;
(ix) except in the ordinary course of business or except as would not
reasonably be expected to have a Material Adverse Effect on the Company
or except as set forth on the Disclosure Schedule, modify, amend or
terminate any material contract or agreement to which the Company or any
subsidiary is a party or waive, release or assign any material rights or
claims thereunder;
(x) make any material change to its accounting methods, principles or
practices, except as may be required by generally accepted accounting
principles or as disclosed in the Disclosure Schedule;
(xi) permit any amendment to the form of benefit payments elected on
February 16, 1996 pursuant to the BioWhittaker, Inc. Supplemental
Executive Retirement Plan Deferral Agreement by any participant; or
(xii) authorize, or commit or agree to take, any of the foregoing
actions.
(b) Other Actions. Except as expressly permitted by Section 4.1, the
Company shall not, and shall not permit any of its subsidiaries to, take any
action that would, or that could reasonably be expected to, result in (i)
any of the representations and warranties of the Company set forth in this
Agreement that are qualified as to materiality becoming untrue, (ii) any of
such representations and warranties that are not so qualified becoming
untrue in any respect or (iii) any of the conditions to the Merger set forth
in Article 5 not being satisfied.
(c) Advice of Changes. The Company shall promptly advise Parent and
Parent shall promptly advise the Company orally and in writing of (i) any
repre-
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<PAGE> 29
sentation or warranty made by it (or, in the case of Parent, made by it or
the Purchaser) contained in this Agreement that is qualified as to
materiality becoming untrue or inaccurate in any respect or any such
representation or warranty that is not so qualified becoming untrue or
inaccurate in any respect or (ii) the failure by it (or, in the case of
Parent, a failure by it or the Purchaser) to comply with or satisfy in any
material respect any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement, provided, however, that no such
notification shall affect the representations, warranties, covenants or
agreements of the parties or the conditions to the obligations of the
parties under this Agreement.
4.3 Access and Information. Throughout the period prior to the Effective
Time, so long as this Agreement remains in effect, the Company shall afford to
the Purchaser and its representatives such access, during normal business hours,
to the Company's and its subsidiaries' books, records (including, without
limitation, tax returns and work papers of the Company's independent auditors),
plant and personnel, and to such other information, as Parent shall reasonably
request. Parent and the Purchaser will treat, and will cause their respective
accountants, counsel and other representatives to treat, as strictly
confidential all non-public documents and non-public information concerning the
Company furnished to Parent or the Purchaser in connection with the
transactions contemplated by this Agreement, subject to the requirements of law
and the provisions of this Agreement. If the transactions contemplated by this
Agreement are not consummated, such confidence shall be maintained except to the
extent such information can be shown to have been (i) in the public domain
through no fault of Parent or the Purchaser or (ii) later lawfully acquired by
Parent or the Purchaser from other sources without any breach of duty to the
Company by Parent, the Purchaser or, to the knowledge of Parent or the
Purchaser, any third party. If requested by the Company, Parent and the
Purchaser will return to the Company all copies of written information furnished
by the Company to Parent or the Purchaser or its agents, representatives or
advisors.
4.4 Certain Filings, Consents and Arrangements. Parent, the Purchaser
and the Company shall use their reasonable best efforts to make promptly any
required submissions under the HSR Act with respect to the Merger and the
transactions contemplated by this Agreement. The Company shall use its
reasonable best efforts to obtain all consents, approvals, permits or
authorizations as are required to be obtained from other parties to loan
agreements or other contracts material to the Company's business in connection
with the consummation of the Merger.
4.5 Reasonable Best Efforts. (a) Subject to the terms and conditions
provided in this Agreement, each of the parties agrees to use its reasonable
best efforts to take
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promptly, or cause to be taken, all actions and to do promptly, or cause to be
done, all things necessary, proper or advisable to consummate and make effective
the transactions contemplated by this Agreement, including using its reasonable
best efforts (i) to obtain all necessary waivers, consents and approvals, and
(ii) to effect all necessary registrations and filings, subject, however, to
Company Stockholder Approval (as defined in Section 4.7 hereof). In case at any
time after the Effective Time any further action is necessary or desirable to
carry out the obligations of the parties under this Agreement, the proper
officers and/or directors of Parent, the Purchaser and the Company, as the case
may be, shall take the necessary action.
(b) In connection with and without limiting the foregoing, the Company
and its Board of Directors shall (i) take all action necessary to ensure that no
state takeover statute or similar statute or regulation, in each case as the
same is in effect on the date hereof, is or becomes applicable to the Offer, the
Merger, this Agreement, the Stockholder Agreement or any of the other
transactions contemplated by this Agreement or the Stockholder Agreement and
(ii) if any such state takeover statute or similar statute or regulation becomes
applicable to the Offer, the Merger, this Agreement, the Stockholder Agreement
or any other transaction contemplated by this Agreement or the Stockholder
Agreement take all action necessary to ensure that the Merger and the other
transactions contemplated by this Agreement and the Stockholder Agreement may be
consummated as promptly as practicable on the terms contemplated by this
Agreement and the Stockholder Agreement and otherwise to minimize the effect of
such statute or regulation on the Merger and the other transactions contemplated
by this Agreement and the Stockholder Agreement.
4.6 Public Statements. So long as this Agreement remains in effect,
Parent and the Purchaser, on the one hand, and the Company, on the other hand,
will consult with each other before issuing, and provide each other the
opportunity to review, comment upon and concur with, any press release or other
public statements with respect to the transactions contemplated by this
Agreement, including the Offer and the Merger, and shall not issue any such
press release or make any such public statement prior to such consultation,
except as may be required by applicable law, court process or by obligations
pursuant to any listing agreement with any national securities exchange.
4.7 Stockholder Approval. (a) If required by applicable law in order to
consummate the Merger, as soon as practicable following the purchase of the
Shares pursuant to the Offer, the Company shall duly call, give notice of,
convene and hold a meeting of its stockholders (the "Company Stockholders
Meeting") for the purpose of adopting and approving this Agreement and the
transactions contemplated hereby (the
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<PAGE> 31
"Company Stockholder Approval"). Without limiting the generality of the
foregoing, the Company agrees that its obligations pursuant to the first
sentence of this Section 4.7(a) shall not be affected by the commencement,
public proposal, public disclosure or communication to the Company of any
proposed Acquisition Transaction. The Company will, through its Board of
Directors, recommend to its stockholders the approval and adoption of this
Agreement and the transactions contemplated hereby, except to the extent that
the Board of Directors of the Company shall have withdrawn or modified its
approval or recommendation of this Agreement or the Merger and terminated this
Agreement in accordance with Section 4.1(b). At such meeting, the Parent and the
Purchaser will each vote, or cause to be voted, all Shares acquired in the Offer
or otherwise beneficially owned by it or any of its subsidiaries on the record
date for such meeting, in favor of the approval and adoption of this Agreement
and the transactions contemplated hereby.
(b) The Company shall, if required by law, prepare and file a proxy
statement (the "Proxy Statement") with the Commission in connection with
obtaining the Company Stockholder Approval. Parent and the Purchaser shall
cooperate with the Company in the preparation of the Proxy Statement including,
without limitation, promptly providing information requested by the Company or
required by the Commission to be included in the Proxy Statement and responding
promptly to any inquiries from the Company made in connection with comments on
the Proxy Statement received from the Commission. The Company will use its
reasonable best efforts to cause the Proxy Statement to be mailed to the
Company's stockholders as promptly as practicable after the Commission completes
its review of the Proxy Statement.
(c) The Company agrees that none of the information included or
incorporated by reference in the Proxy Statement or otherwise supplied by the
Company to its stockholders, including any amendments to any of the foregoing,
will be false or misleading with respect to any material fact or will omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not misleading; provided, that the foregoing shall not apply to
information supplied by or on behalf of Parent or the Purchaser specifically for
inclusion or incorporation by reference in any such document. Parent agrees that
none of the information supplied by or on behalf of Parent or the Purchaser
specifically for inclusion or incorporation by reference in any such document
will be false or misleading with respect to any material fact or will omit to
state any material fact required to be stated therein or necessary in order to
make the statements in such information, in light of the circumstances under
which they are made, not misleading.
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(d) Notwithstanding the foregoing, in the event that the Purchaser shall
acquire at least 90 percent of the outstanding Shares, the parties hereto agree,
at the request of the Parent or the Purchaser, to take all necessary and
appropriate action to cause the Merger to become effective, as soon as
practicable after the expiration of the Offer, without a meeting of stockholders
of the Company, in accordance with Section 253 of the DGCL.
4.8 Stockholder Litigation. The Company shall consult with the Parent
regarding the defense or settlement of any stockholder litigation against the
Company and its directors relating to the transactions contemplated by this
Agreement; it being understood that the Company shall be entitled to control and
conduct any such litigation.
4.9 Indemnification, Exculpation and Insurance. Parent and the Purchaser
agree that all rights to indemnification and exculpation from liabilities for
acts or omissions occurring at or prior to the Effective Time now existing in
favor of the current or former directors or officers of the Company and its
subsidiaries as provided in their respective certificates of incorporation,
by-laws (or comparable organizational documents) and indemnification agreements
shall survive the Merger and shall continue in full force and effect in
accordance with their terms for a period of not less than six years from the
Effective Time. Parent will cause to be maintained for a period of not less than
six years from the Effective Time the Company's current directors' and officers'
insurance and indemnification policy to the extent that it provides coverage for
events occurring prior to the Effective Time ("D&O Insurance") for all persons
who are directors and officers of the Company on the date of this Agreement, so
long as the annual premium therefor would not be in excess of 200% of the last
annual premium paid prior to the date of this Agreement (the "Maximum Premium");
provided, however, that Parent may, in lieu of maintaining such existing D&O
Insurance as provided above, cause coverage to be provided under any policy
maintained for the benefit of Parent or any of its subsidiaries or any policy
specifically obtained for this purpose, so long as the terms thereof are no less
advantageous to the intended beneficiaries thereof than the existing D&O
Insurance. If the existing D&O Insurance expires, is terminated or canceled
during such six-year period, Parent will use all reasonable efforts to cause to
be obtained as much D&O Insurance as can be obtained for the remainder of such
period for an annualized premium not in excess of the Maximum Premium, on terms
and conditions no less advantageous to the covered persons than the existing D&O
Insurance. The Company represents to Parent that the Maximum Premium is
$340,000.
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<PAGE> 33
4.10 Amendment of Rights Agreement. The Company covenants and agrees
that it will not take action pursuant to or amend the Rights Agreement or redeem
the Rights or terminate the Rights Agreement prior to the Effective Time, except
as expressly contemplated or permitted by Section 3.1(s) of this Agreement.
4.11 Borrowings under the Loan Agreement. The Company shall consult with
the Parent prior to electing any new interest rate for any interest period under
the Loan Agreement with Nationsbank identified in the Disclosure Schedule and
shall otherwise manage its obligations thereunder to insure that neither the
Company, the Parent nor the Purchaser shall incur any breakage or similar
prepayment costs in the event the Company prepays its outstanding indebtedness
thereunder at the Effective Time.
5. CONDITIONS
5.1 Conditions to the Obligations of Parent, the Purchaser and the
Company. The obligations of Parent, the Purchaser and the Company to consummate
the Merger are subject to the satisfaction, at or before the Effective Time, of
each of the following conditions:
(a) The Purchaser shall have purchased all Shares duly tendered and not
withdrawn pursuant to the terms of the Offer and subject to the terms
thereof; provided that the obligation of the Parent and the Purchaser to
effect the Merger shall not be conditioned on the fulfillment of the
condition set forth in this Section 5.1 (a) if the failure of the Purchaser
to purchase the Shares pursuant to the Offer shall have constituted a breach
of the Offer or of this Agreement.
(b) The consummation of the Merger shall not be precluded by any order,
decree or injunction of a court of competent jurisdiction (each party
agreeing to use its best efforts to have any such order reversed or
injunction lifted), and there shall not have been any action taken or any
Law enacted, promulgated or deemed applicable to the Merger by any
Governmental Entity that makes consummation of the Merger illegal.
(c) If required by Certificate of Incorporation and By-Laws of the
Company and the DGCL, this Agreement shall have been approved and adopted by
the affirmative vote of the holders of the requisite number of shares of
Common Stock in accordance with the Certificate of Incorporation and By-Laws
of the Company and the DGCL.
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<PAGE> 34
(d) Any applicable waiting period under the HSR Act shall have expired
or been terminated.
5.2 Conditions to the Obligations of Parent and the Purchaser. The
obligations of Parent and the Purchaser to consummate the Merger are subject to
the satisfaction, at or before the Effective Time, of the following conditions:
(a) The Company shall have performed all of its material agreements and
covenants contained in this Agreement required to be performed on or prior
to the Effective Time and the representations and warranties of the Company
contained in this Agreement shall be true and correct in all material
respects on and as of (i) the date made and (ii) except in the case of
representations and warranties expressly made solely with reference to a
particular date, the Effective Time, and Parent and the Purchaser shall have
received a certificate of an executive officer of the Company to such
effect.
(b) The Company shall not have received notice from the holder or
holders of more than 10% of the outstanding Shares, determined on a fully
diluted basis, that such holder or holders have exercised or intend to
exercise its or their appraisal rights under Section 262 of the DGCL.
(c) The 179,656 Shares previously held by the Trust shall have been
returned to the Company and canceled, as described in the third recital to
this Agreement.
5.3 Conditions to the Obligations of the Company. The obligations of the
Company to consummate the Merger are subject to the satisfaction, at or before
the Effective Time, of the following conditions:
(a) Parent and the Purchaser shall have performed all of their
respective material covenants and agreements contained in this Agreement
required to be performed on or prior to the Effective Time and the
representations and warranties of the Parent and the Purchaser contained in
this Agreement shall be true and correct in all material respects on and as
of (i) the date made and (ii) except in the case of representations and
warranties expressly made solely with reference to a particular date, the
Effective Time, and the Company shall have received a certificate of an
executive officer of Parent to such effect.
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<PAGE> 35
6. MISCELLANEOUS
6.1 Termination. This Agreement may be terminated and the Merger contem-
plated herein may be abandoned at any time prior to the Effective Time, whether
prior to or after approval by the stockholders of the Company:
(a) by the mutual written consent of Parent, the Purchaser and the
Company;
(b) by either the Parent or the Company if, on or before October 31,
1997 and without fault of such terminating party, Purchaser shall not
have purchased in the Offer such number of the Shares which, together
with the number of Option Shares (as such term is defined in the
Stockholder Agreement) subject to the Stockholder Agreement, represent
in excess of 50% of the Shares on a fully diluted basis, or the Merger
shall not have been consummated on or before November 30, 1997, provided
however, that the right to terminate this Agreement shall not be
available (i) to any party whose failure to fulfill any obligation under
this Agreement has been the cause of, or resulted in, the failure of the
Offer or the Merger to have occurred on or before the aforesaid date;
(c) by either the Parent or the Company if the Offer shall expire or
terminate in accordance with its terms without any Shares having been
purchased thereunder and, in the case of termination by the Parent, the
Purchaser shall not have been required by the terms of the Offer or this
Agreement to purchase any Shares pursuant to the Offer;
(d) by the Company if the Purchaser shall not timely commence the Offer
as provided in Section 1.1(a);
(e) if a Company Stockholder Approval is required by law, by either the
Purchaser or the Company if, upon a vote at a duly held Company Stock-
holders Meeting or any adjournment thereof at which such Company Stock-
holder Approval shall have been voted upon, such Company Stockholder
Approval shall not have been obtained;
(f) unilaterally by the Purchaser or the Company (i) if the other fails
to perform any material covenant or agreement in any material respect in
this Agreement, and does not cure the failure in all material respects
within 30 business days after the terminating party delivers written
notice of the alleged
32
<PAGE> 36
failure or (ii) if any condition to the obligations of that party is not
satisfied (other than by reason of a breach by that party of its
obligations hereunder), and it reasonably appears that the condition
cannot be satisfied prior to November 30, 1997;
(g) by either the Purchaser or the Company if either is prohibited by an
order or injunction (other than an order or injunction on a temporary or
preliminary basis) of a court of competent jurisdiction or other
Governmental Entity from consummating the Offer or the Merger and all
means of appeal and all appeals from such order or injunction have been
finally exhausted;
(h) by the Purchaser if the Board of Directors of the Company shall have
withdrawn or modified, or resolved to withdraw or modify, in any manner
which is adverse to Parent or the Purchaser, its recommendation or
approval of the Merger or this Agreement; provided, however, that a
termination pursuant to this Section shall not become effective if, as a
result of the Company's receipt of a proposal for an Acquisition
Transaction from a third party, the Company, in accordance with Section
4.1(b), withdraws or modifies, or resolves to withdraw or modify, in any
manner which is adverse to Parent or the Purchaser, its recommendation
or approval of the Offer, the Merger or this Agreement and if within ten
business days of taking and disclosing to its stockholders the
aforementioned position the Company publicly reconfirms its
recommendation of the transactions contemplated hereby; or
(i) by the Company if (i) the Board of Directors of the Company shall
have determined in good faith, based on the advice of outside counsel,
that it is necessary, in order to comply with its fiduciary duties to
the Company's stockholders under applicable law, to terminate this
Agreement to enter into an agreement with respect to or to consummate a
transaction constituting a Superior Proposal (as defined in Section
6.5), (ii) the Company shall have given notice to the Purchaser advising
the Purchaser that the Company has received a Superior Proposal from a
third party, specifying the material terms and conditions (including the
identity of the third party), and that the Company intends to terminate
this Agreement in accordance with this Section 6.1(i), (iii) either (A)
the Purchaser shall not have revised its proposal for an Acquisition
Transaction within two business days from the time on which such notice
is deemed to have been given to Parent, or (B) if the Purchaser within
such period shall have revised its proposal for an Acquisition
Transaction, the Board of Directors of the Company, after receiving
advice from the Company's financial advisor, shall have determined in
its good faith reasonable
33
<PAGE> 37
judgment that the third party's proposal for an Acquisition Transaction
is superior to Parent's revised proposal for an Acquisition Transaction,
and (iv) the Company, at the time of such termination, pays the Expenses
and the Termination Fee in accordance with Section 6.12.
In the event of a termination of this Agreement and an abandonment of the
Merger, no party hereto (or any of its directors, officers, representatives
or agents) shall have any further liability or further obligation to any
other party to this Agreement, except with respect to the provisions of this
Article 6 and the other provisions that survive the Merger pursuant to
Section 6.2 and except that nothing herein will relieve any party from
liability for any willful breach of its representations, warranties,
covenants and agreements set forth in this Agreement.
6.2 Non-Survival of Representations, Warranties and Agreements. The
representations, warranties and agreements in this Agreement shall terminate at
the Effective Time or the termination of this Agreement pursuant to Section 6.1,
as the case may be, except that, in the event the Effective Time occurs, the
agreements set forth in Section 4.9 and the last sentence of Section 4.5(a)
shall survive indefinitely and, in the event this Agreement is terminated prior
to the occurrence of the Effective Time, the agreements set forth in Sections
4.3 and 6.12 shall survive indefinitely.
6.3 Amendment and Waiver. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto and in
compliance with applicable law. At any time prior to the Effective Time, the
parties hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant thereto and (c) waive compliance with any of the
agreements or conditions contained herein; provided, however, that no such
waiver may materially adversely affect the rights of the stockholders of the
Company. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid if set forth in an instrument in writing signed on behalf
of such party.
6.4 Entire Agreement. This Agreement and the two separate but
substantially identical Stockholder Agreements, each dated as of the date,
hereof among Parent and certain stockholders of the Company and the
Confidentiality Agreement dated as of March 20, 1997, between the Company and
Parent contain the entire agreement among Parent, the Purchaser and the Company
with respect to the Merger and the other transactions contemplated hereby and
thereby, and such agreements supersede all prior agreements among the parties
with respect to these matters.
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<PAGE> 38
6.5 Definitions. (a) As used herein, the term "Hazardous Substance"
means asbestos-containing material and any and all hazardous or toxic
substances, materials or wastes as defined or listed under the Resource
Conservation and Recovery Act, the Toxic Substances Control Act, the
Comprehensive Environmental Response, Compensation and Liability Act or any
comparable state statute or any regulation promulgated under any of
such federal or state statutes.
(b) As used herein, the term "Person" means any individual, corporation,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization or other entity.
(c) As used herein, the term "Superior Proposal" means a bonafide
proposal to acquire, directly or indirectly, for consideration consisting of
cash and/or securities, more than 50% of the Shares then outstanding or all or
substantially all the assets of the Company, provided (i) such proposed
transaction satisfies the tests set forth in clauses (x), (y) and (z) of the
second sentence of Section 4.1(a) hereof and (ii) the Board of Directors
determines, in its good faith reasonable judgment, that such proposed
transaction is reasonably likely to be consummated without undue delay.
6.6 Applicable 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 law principles thereof.
6.7 Headings. The descriptive headings contained in this Agreement are
for convenience and reference only and shall not affect in any way the meaning
or interpretation of this Agreement.
6.8 Notices. Each party shall promptly give written notice to the other
party upon becoming aware of the occurrence or, to its knowledge, impending or
threatened occurrence, of any event which would cause or constitute a breach of
any of its representations, warranties or covenants contained or referenced in
this Agreement and will use its best efforts to prevent or promptly remedy the
same. All notices or 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, by facsimile, telex or other standard form of
telecommunications, by courier service, or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to the Company:
8830 Biggs Ford Road
35
<PAGE> 39
Walkersville, Maryland 21793-0127
Fax: (301) 845-1006
Attn: F. Dudley Staples, Esq.
With a copy to:
Venable, Baetjer, Howard & Civiletti, LLP
1201 New York Avenue, NW
Suite 1000
Washington, D.C. 20005
Fax: (202) 962-8300
Attn: Ariel Vannier, Esq.
If to Parent or the Purchaser:
Cambrex Corporation
One Meadowlands Plaza
East Rutherford, New Jersey 07073
Fax: (201) 804-9851
Attn: Peter Thauer, Esq.
With a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Fax: (212) 909-6836
Attn: Ralph Arditi, Esq.
or to such other address or facsimile number as any party may have furnished to
the other parties in writing in accordance with this Section 6.8.
6.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one agreement.
6.10 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or
36
<PAGE> 40
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
6.11 Parties in Interest; Assignment. This Agreement is binding upon and
is solely for the benefit of the parties hereto and their respective successors,
legal representatives and assigns, except that Section 4.9 is intended to be for
the benefit of the parties referred to therein, and may be enforced by such
parties. The Purchaser shall have the right (a) to assign to Parent or any
direct or indirect wholly-owned subsidiary of Parent any and all rights and
obligations of the Purchaser under this Agreement, including, without
limitation, the right to substitute in its place such a subsidiary as one of the
constituent corporations in the Merger (such subsidiary assuming all of the
obligations of the Purchaser in connection with the Merger) and may require
subsidiaries of the Company to merge with subsidiaries of the Purchaser (or its
assignees) in connection with the Merger and (b) to restructure the transaction
to provide for the merger of the Company with and into the Purchaser or such
other entity as provided above; provided, however, that the Company shall not be
deemed to have breached any of its representations and warranties herein by
reason of the Purchaser exercising its rights hereunder, and by exercising such
rights Parent will be deemed to have waived the receipt of any additional
consents of third parties required by virtue thereof; and provided further that
no such assignment shall affect any obligation of Parent or Purchaser hereunder
and that it shall remain primarily liable as to its assigned obligations. If the
Purchaser exercises its right to so restructure the transaction, the Company
shall promptly enter into appropriate agreements to reflect such restructuring.
6.12 Fees and Expenses. (a) Except as provided below in this Section
6.12, all fees and expenses incurred in connection with the Offer, the Merger,
this Agreement, the Stockholder Agreement and the transactions contemplated by
this Agreement and the Stockholder Agreement shall be paid by the party
incurring such fees or expenses, whether or not the Merger is consummated.
(b) The Company shall pay, or cause to be paid, in same day funds to
Parent the sum of (x) Parent's Expenses (as defined below) and (y) $4,125,000
(the "Termination Fee") upon demand if the Company terminates this Agreement
pursuant to Section 6.1(i). In addition, the Company shall pay or cause to be
paid, in same day funds to Parent the sum of Parent's Expenses and the
Termination Fee if (i) the Purchaser terminates this Agreement pursuant to
Section 6.1(f) or 6.1(h) at any time after a proposal for an Acquisition
Transaction has been made (ii) the Company or the Purchaser terminates this
Agreement pursuant to Section 6.1(b), 6.1(c) or 6.1(e) at any time after a
proposal for an Acquisition Transaction has been made or (iii) the
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<PAGE> 41
Purchaser terminates this Agreement pursuant to Section 6.1(f)(ii) at any time
after a proposal for an Acquisition Transaction has been made and, within nine
months after any termination referred to in the immediately preceding clauses
(i), (ii) or (iii) of this sentence, the Person that made the proposal for an
Acquisition Transaction (or an affiliate thereof) completes a merger,
consolidation or other business combination with the Company or a subsidiary of
the Company, or the purchase from the Company or from a subsidiary of the
Company of 30% or more (in voting power) of the voting securities of the Company
or of 30% or more (in market value) of the assets of the Company and its
subsidiaries, on a consolidated basis; provided that the Company will not have
any obligations under this Section 6.12(b) if the Purchaser terminates this
Agreement pursuant to Section 6.1(f)(ii) as a result of the failure of a
condition to be satisfied unless the reason for the failure of such condition to
be satisfied is reasonably related to the making of such proposal for an
Acquisition Transaction by the Person that ultimately consummated a transaction
with the Company. "Expenses" shall mean reasonable and reasonably documented
out-of-pocket fees and expenses incurred or paid by or on behalf of Parent in
connection with the Merger or the consummation of any of the transactions
contemplated by this Agreement (including, without limitation, the fees and
expenses of one counsel representing the financial institutions providing
financing to the Purchaser and all fees and expenses of Parent's investment
banking firm), provided that all such Expenses for this purpose shall not exceed
$1.2 million in the aggregate.
6.13 Specific Performance. The parties hereto 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 hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.
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<PAGE> 42
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date set forth above.
BIOWHITTAKER, INC.
By: /s/ NOEL BUTERBAUGH
------------------------------------
Name: Noel Buterbaugh
Title: President and Chief Executive Officer
CAMBREX CORPORATION
By: /s/ PETER TRACEY
------------------------------------
Name: Peter Tracey
Title: Executive Vice President
BW ACQUISITION CORPORATION
By: /s/ PETER E. THAUER
------------------------------------
Name: Peter E. Thauer
Title: Vice President
39
<PAGE> 43
ANNEX A
Certain Conditions of the Offer Notwithstanding any other provision
of the Offer, the Purchaser shall not be required to accept for payment, or,
subject to any applicable rules and regulations of the Commission, including
Rule 14e-1(c) under the Exchange Act (relating to the Purchaser's obligation to
pay for or return tendered shares after the termination or withdrawal of the
Offer), to pay for any Securities tendered pursuant to the Offer, and (subject
to the terms of the Agreement) may amend or terminate the Offer or postpone the
acceptance for payment, the purchase of, and/or (subject to any such applicable
rules and regulations of the Commission) payment for, Securities tendered, (i)
unless there are validly tendered and not properly withdrawn prior to the
expiration of the Offer that number of Shares which, together with the number of
Option Shares (as such term is defined in the Stockholder Agreement) subject to
the Stockholder Agreement, represents in excess of 50% of the Shares on a
fully-diluted basis, or (ii) if at any time on or after the date of the
Agreement and at or before the time of payment for any such Shares (whether or
not any Shares shall theretofore have been accepted for payment or paid pursuant
to the Offer) any of the following conditions exists:
(a) there shall have been any action or proceeding brought by any
governmental authority before any federal or state court, or any order or
preliminary or permanent injunction entered in any action or proceeding
before any federal or state court or governmental, administrative or
regulatory authority or agency, located or having jurisdiction within the
United States or any country or economic region in which either the
Company or Parent, directly or indirectly, has material assets or
operations, or any other action taken, proposed or threatened, or statute,
rule, regulation, legislation, interpretation, judgment or order proposed,
sought, enacted, entered, enforced, promulgated, amended, issued or deemed
applicable to Purchaser, the Company or any subsidiary or affiliate of
Purchaser or the Company or the Offer or the Merger, by any legislative
body, court, government or governmental, administrative or regulatory
authority or agency located or having jurisdiction within the United
States or any country or economic region in which either the Company or
Parent, directly or indirectly, has material assets or operations, which
could reasonably be expected to have the effect of: (i) making illegal, or
otherwise restraining or prohibiting or making materially more costly, the
making of the Offer, the acceptance for payment of, payment for, or owner-
ship, directly or indirectly, of some of or all the Shares by Parent or
Purchaser, the consummation of any of the transactions contemplated by the
Agreement or materially delaying the Merger; (ii) prohibiting or
materially limiting the owner-
A-1
<PAGE> 44
ship or operation by the Company or any of its subsidiaries, or by
Parent, Purchaser or any of Parent's subsidiaries of all or any
material portion of the business or assets of the Company and its
subsidiaries taken as a whole or Parent or any of its subsidiaries, or
compelling Purchaser, Parent or any of Parent's subsidiaries to dispose
of or hold separate all or any material portion of the business or
assets of the Company and its subsidiaries taken as a whole or Parent
or any of its subsidiaries, in each case as a result of the
transactions contemplated by the Offer or the Agreement; (iii) imposing
or confirming material limitations on the ability of Purchaser, Parent
or any of Parent's subsidiaries effectively to acquire or hold or to
exercise full rights of ownership of Shares including, without
limitation, the right to vote any Shares acquired or owned by Parent or
Purchaser or any of Parent's subsidiaries on all matters properly
presented to the shareholders of the Company, including, without
limitation, the adoption and approval of the Agreement and the Merger
or the right to vote any shares of capital stock of any subsidiary
directly or indirectly owned by the Company; (iv) requiring divestiture
by Parent or Purchaser, directly or indirectly, of any Shares; or (v)
which could reasonably be expected to materially adversely affect the
business, financial condition or results of operations of the Company
and its subsidiaries taken as a whole or the value of the Shares or of
the Offer to Purchaser or Parent;
(b) there shall have occurred (i) any general suspension of
trading in, or limitation on prices for, securities on any national
securities exchange or in the over-the-counter market in the United
States, (ii) a declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States, (iii) any limitation
(whether or not mandatory) by any U.S. government or governmental,
administrative or regulatory authority or agency, on, or any other
event that materially adversely affects, the extension of credit by
banks or other lending institutions, (iv) a commencement of a war or
armed hostilities or other national or international calamity directly
or indirectly involving the United States which would reasonably be
expected to have a Material Adverse Effect or materially adversely
affect (or materially delay) the consummation of the Offer or (v) in
the case of any of the foregoing existing at the time of the execution
of the Agreement, a material acceleration or worsening thereof which
acceleration or worsening is reasonably expected to have a Material
Adverse Effect on the Company or to materially adversely affect the
consummation of the Offer;
(c) (i) it shall have been publicly disclosed that beneficial
ownership (determined for the purposes of this paragraph as set forth
in Rule 13d-3
A-2
<PAGE> 45
promulgated under the Exchange Act) of 20% or more of the outstanding
Shares has been acquired by any corporation (including the Company or
any of its subsidiaries or affiliates), partnership, person or other
entity or group (as defined in Section 13(d)(3) of the Exchange Act),
other than Parent or any of its affiliates, or (ii) (A) the Board of
Directors of the Company or any committee thereof shall have withdrawn
or modified in a manner adverse to Parent or Purchaser the approval or
recommendation of the Offer, the Merger or the Agreement and, within
ten business days of taking and disclosing to its stockholders the
aforementioned position, shall not have publicly reconfirmed its
recommendation of the Offer, the Merger or the Agreement, or approved
or recommended any takeover proposal or any other acquisition of Shares
other than the Offer and the Merger, (B) any such corporation,
partnership, person or other entity or group shall have entered into a
definitive agreement or an agreement in principle with the Company with
respect to a tender offer or exchange offer for any Shares or a merger,
consolidation or other business combination with or involving the
Company or any of its subsidiaries or (C) the Board of Directors of the
Company or any committee thereof shall have resolved to do any of the
foregoing;
(d) any of the representations and warranties of the Company
set forth in the Agreement that are qualified as to materiality shall
not be true and correct or any such representations and warranties that
are not so qualified shall not be true and correct in any material
respect, in each case as if such representations and warranties were
made at the time of such determination, except with respect to
representations and warranties made as of an earlier time;
(e) the Company shall have failed to perform any material
obligation or to comply with any material agreement or material
covenant of the Company to be performed or complied with by it under
the Agreement;
(f) the Agreement shall have been terminated in accordance
with its terms or the Offer shall have been terminated with the consent
of the Company; or
(g) any waiting periods under the HSR Act applicable to the
purchase of Shares pursuant to the Offer shall not have expired or been
terminated or any material approval, permit, authorization, consent or
waiting period of any domestic, foreign or supranational governmental,
administrative or regulatory agency (federal, state, local, provincial
or otherwise) located or having jurisdiction within the United States
or any country or economic region in which either the
A-3
<PAGE> 46
Company or Parent, directly or indirectly, has material assets or
operations, shall not have been obtained and such failure to obtain
could reasonably be expected to have a Material Adverse Effect on the
Company or the value of the Shares or the Offer to the Purchaser;
which, in the good faith sole judgment of Purchaser makes it inadvisable to
proceed with the Offer or with such acceptance for payment of or payment for
Shares or to proceed with the Merger.
The foregoing conditions are for the sole benefit of Purchaser and may
be asserted by Purchaser regardless of the circumstances giving rise to any such
condition or may be waived by Purchaser in whole or in part at any time and from
time to time in its sole discretion (subject to the terms of the Agreement). The
failure by Purchaser at any time to exercise any of the foregoing rights shall
not be deemed a waiver of any such right, the waiver of any such right with
respect to particular facts and other circumstances shall not be deemed a waiver
with respect to any other facts and circumstances, and each such right shall be
deemed an ongoing right that may be asserted at any time and from time to time.
A-4
<PAGE> 47
Exhibit A
List of Stockholders Party to Stockholders Agreement
Management Stockholders Agreement
Anasco GmbH
Stockholders Agreement
Noel Buterbaugh
Thomas Winkler
Philip Rohrer
Leif Olsen
Dudley Staples
Joseph Alibrandi
<PAGE> 48
Schedule 2.2
Officers of Surviving Corporation
Joseph F. Alibrandi Chairman of the Board
Noel L. Buterbaugh President and Chief Executive Officer
Thomas R. Winkler Executive Vice President and Chief
Operating Officer
Philip L. Rohrer, Jr. Vice President and Chief Financial
Officer
Leif E. Olson Vice President, Regulatory Affairs
Peter E. Thauer Vice President and Assistant Secretary
Douglas McMillan Vice President and Assistant Treasurer
F. Dudley Staples Secretary and General Counsel
<PAGE> 49
DISCLOSURE SCHEDULE (AS OF AUGUST 22, 1997)
3.2 REPRESENTATIONS AND WARRANTIES OF BIOWHITTAKER
(b) CAPITALIZATION.
- Preemptive Rights - Pursuant to Section 8.01(c) of
the Stock Purchase Agreement, dated September 24,
1991, between BioWhittaker, Inc. and Anasco GmbH (the
"Anasco Stock Purchase Agreement"), BioWhittaker is
obligated to pay Anasco a Compensation Amount (as
defined in the Anasco Stock Purchase Agreement) upon
the exercise of Substitute Options (as defined in the
Anasco Stock Purchase Agreement). The compensation is
to be paid in either cash or Voting Securities (as
defined in the Anasco Stock Purchase Agreement) at
the election of BioWhittaker. Under the terms of the
Anasco Stock Purchase Agreement, such right will
terminate upon the sale of Anasco's shares of
BioWhittaker Common Stock upon consummation of the
Tender Offer, such that Anasco's beneficial ownership
is less than 5%.
- Options to acquire 1,071,388 shares of stock
outstanding (see attached list).
- For voting trusts or other voting agreements - see
Article VIII of the Anasco Stock Purchase Agreement.
- For stock appreciation rights, BioWhittaker U.K.
Limited stock is subject to the rights of Alan Baines
under the Equity Compensation Plan Agreement with
Alan Baines dated as of December, 1991.
(c) SUBSIDIARIES.
- BioWhittaker Technologies, Inc., a Delaware
Corporation
- Clonetics Corporation, a Delaware Corporation
- BioWhittaker USVI, Inc., a U.S. Virgin Islands
Corporation
- BioWhittaker U.K. Limited, a United Kingdom
Corporation
- BioWhittaker Holdings, Inc., a Delaware Corporation
- With respect to BioWhittaker U.K. Limited, the stock
is subject to the rights of Alan Baines under the
Equity Compensation Plan Agreement with Alan Baines
dated as of December, 1991 and the provisions of the
Stock Purchase Agreement dated April 30, 1995,
between BioWhittaker, Inc and Boehringer Ingelheim
International GmbH, as amended by Amendment No. 1
dated July 26, 1995 (the "1995 Stock Purchase
Agreement").
- With respect to the last sentence of Section 3.2(c),
BioWhittaker has the right to re-acquire an interest
in the Boehringer Ingelheim BioProducts Partnership
pursuant to the terms and conditions set forth in the
1995 Stock Purchase Agreement.
1
<PAGE> 50
(d) AUTHORITY.
The following corporate actions could be required:
- Board action required to call a meeting of
stockholders to approve the Merger.
- Board action to comply with Section 1.3 of the
Agreement.
(e) CONSENTS: NO VIOLATION (ASSUMES BIOWHITTAKER IS THE SURVIVING
CORPORATION).
(ii) The following agreements are exceptions to (ii)
- Loan agreement with NationsBank.
- The following Agreements would be affected by a Change of
Control as described below:
- Stock Purchase Agreement as of 9/24/91 between
BioWhittaker, Inc. and Anasco GmbH (the "1991 SPA")
- 1995 Stock Purchase Agreement.
- Joint Venture and Partnership Agreement, dated as of
, 1991 (date left blank on our copy),
by and between Boehringer Ingelheim BioProducts, Inc.
and BioWhittaker International, Inc.
- Technology License Agreement, dated as of October 31,
1991, by and between BioWhittaker, Inc and
BioWhittaker International, Inc. and Assignment and
Assumption of Technology License Agreement dated
October 31, 1991 between BioWhittaker International,
Inc. and Boehringer Ingelheim BioWhittaker.
- Distributor Agreement, dated as of November 1, 1995,
by and between BioWhittaker, Inc. and Boehringer
Ingelheim BioProducts, Partnership.
- Distributor Agreement by and between Boehringer
Ingelheim BioWhittaker and BioWhittaker UK, Limited.
1. If the Company undergoes a "Change of Control" as
contemplated by the Merger Agreement, Boehringer Ingelheim
would have a right to terminate the Company's option to
reacquire its interest in the BI Joint Venture Affiliate (see
8.3(a)(iii) of Stock Purchase Agreement between BioWhittaker,
Inc. and Boehringer International GmbH dated 4/28/95 ("the
1995 SPA")).
Under the express terms of the relevant agreements,
such a termination would also result in the following;
The covenants of Section 9.1 of the 1995 SPA would
cease to be in effect (see Section 9.1 of the 1995 SPA).
The covenants of Section 9.2(b) of the SPA would
become effective. In addition, and depending on whether the
Exercise Period is deemed to have "expired" upon receipt of a
notice of termination associated with a Change of Control date
(see the definitions of "Exercise Period" and "Option
Termination Date in Section 8.3(a) of the 1995 SPA), the
covenants of Section (9.2(a), (c) and (d) may also become
effective.
Pursuant to Section 9.4, of the 1995 SPA, Boehringer
Ingelheim would have a right of first refusal to purchase
BioWhittaker UK, Limited.
To the extent that there are inconsistencies in the
drafting of, or among the provisions of, the provisions of the
agreements referred to above, the Company expresses no opinion
in this Disclosure Schedule as to the correct interpretation
of such provisions.
2
<PAGE> 51
2. If Anasco and its affiliates ceased to own 5% or
more of the Total Voting Power (as defined in the Stock
Purchase Agreement as of 9/24/91 between BioWhittaker, Inc.
and Anasco GmbH (the "1991 SPA")), the rights and obligations
of the parties under Article VIII of the 1991 SPA would
terminate (subject to a right of revival) if Anasco
subsequently re-acquired 5% or more of the Total Voting
Power). The rights and obligations at issue include Anasco's
rights to Board representation, registration rights and
compensation upon exercise of any Substitute Stock Options and
the Company's rights of first refusal with regard to Company
stock, to require Anasco to vote for Board nominees and to be
counted towards a quorum at a stockholder meeting and to
restrict certain other actions of Anasco relating to voting
rights and acquisitions of the Company.
- Supplemental Executive Retirement Plan.
- Written Consent of Directors (oral consent having
been obtained) required to cash out options issued to
Directors under the 1994 Stock Option Plan for
Non-Employee Directors.
- Federal contracts are subject to the Federal
Assignment of Claims Act of 1940, as amended (31
U.S.C. 3727, 41 U.S.C. 15) and related rules,
regulations and contract clauses (see for example
Federal Acquisition Regulations Subpart 42.12) and
administrative and court decisions thereon; state
procurement laws may have similar provisions. While
there are strong arguments that this transaction as
structured is not an assignment or transfer under the
federal law, there is some authority to the contrary
and it is conceivable that a government contracting
officer could determine that consents were required.
(f) SEC REPORTS, ETC.
See litigation schedule (Section 3.2(i) of the
Disclosure Schedule).
(g) NO MATERIAL ADVERSE CHANGE.
MATERIAL ADVERSE CHANGES SINCE 10/31/96.
(i) See litigation schedule (Section 3.2(i) of
the Disclosure Schedule) and First Amendment
dated January 23, 1997 to Asset Purchase and
Supply Agreements with Carter-Wallace, Inc.
(ii) See stock options granted in February, 1997
as shown on the list of outstanding options
referred to in Section 3.2(b) of this
Disclosure Schedule; compensation
information in most recent proxy disclosure
does not include December, 1996 salary and
bonus adjustments which have been separately
disclosed to Purchaser.
(iv) Employment Agreement pending with Alan
Baines (copy furnished to Purchaser's
representatives).
- BioWhittaker executed a Change of Control
Employment Agreement with each of the
following persons on or about March 11,
1997:
3
<PAGE> 52
Philip L. Rohrer, Jr.
Thomas R. Winkler
F. Dudley Staples, Jr.
Leif Olsen
(vi) BioWhittaker will implement FASB 123 in 1997 as
disclosed in the most recent SEC Form 10-K. Also, the
IRS notified BioWhittaker that it will consent to a
change in tax accounting methods for inventory. A
copy of the Consent Agreement dated July 16, 1997 has
been provided.
(i) LITIGATION.
- George Erie
v.
BioWhittaker, Inc., Noel Buterbaugh and Thomas R. Winkler
United States District Court
District of Massachusetts
Civil Action No. 97-11414 REK
George Erie was formerly employed by BioWhittaker as
a salesman. On May 22, 1997, Mr. Erie's employment
was terminated by BioWhittaker. Mr. Erie has filed
suit claiming damages for (a) breach of contract (an
alleged lifetime employment contract), (b) promissory
estoppel (based on a representation that the Company
would employ Mr. Erie until he chose to retire) and
(c) negligent or intentional misrepresentation
(inducing Mr. Erie to leave his prior employment).
Mr. Erie seeks damages in an undetermined amount, but
indicates that the compensation that he would have
earned from continued employment would have been not
less than $1,585,000. Mr. Erie also seeks interest and
costs, including reasonable attorney's fees.
At this time, the Company has not been required to
file a response to the original complaint. The
Company will contend that, in addition to other
defenses, Mr. Erie was employed at will.
Pennsylvania Regional Tissue & Transplant Bank t/d/b/a
Pennsylvania Regional Tissue Bank
v.
James S. Bardsley, Jr. et al
and
BioWhittaker, Inc.
United States District Court
Middle District of Pennsylvania
Scranton Division
Civil Action No. 3:CV-96-0608
Mr. Bardsley was, at one time, an employee of PRTB
and/or its subsidiaries. Mr. Bardsley left PRTB's
employ and set up Anatomic Gift Foundation and the
Human Cell Culture Center, Inc. (HCCC) in 1994 or
before. PRTB claims that the defendants (a) usurped a
corporate opportunity (b) converted and
misappropriated trade secrets
4
<PAGE> 53
(c) conspired to harm PRTB and other defendants, (d) breached
agreements with PRTB and its subsidiaries, (e) breached their fiduciary
duty to PRTB and its subsidiaries and (f) tortiously interfered with
contractual relationships with organ procurement organizations,
researchers and others.
In the complaint, the plaintiff seeks unspecified damages in excess of
$50,000 and punitive damages together with interest and costs and
injunctions to prevent further violations of plaintiff's rights. In
1996, BioWhittaker entered into a contract with HCCC (a copy of which
has been furnished to Parent) to distribute certain products for HCCC.
In July of 1997, the plaintiff filed a motion to join BioWhittaker as a
party to the litigation. Defendants have responded opposing the motion
to join BioWhittaker. At this time, BioWhittaker is not a party to the
suit and will have a chance to file motions objecting to its joinder,
if plaintiff's motion to join BioWhittaker is approved by the court.
- - BioWhittaker, Inc.
v.
Pharmacia-Upjohn K.K, et al
Tokyo District Court
Case No. Tokyo District Court Hei-9(1997)-WAS-5792
Case No. Tokyo District Court Hei-9(1997)-YO-22042
BioWhittaker previously sued Pharmacia AB (now merged with Upjohn as
Pharmacia & Upjohn, Inc.) and certain of its affiliates (collectively
with Pharmacia referred to as Pharmacia) and one of its distributors in
the United States for breach of its U.S. Patent on methods for testing
for certain allergies. After a partial summary judgment in favor of
BioWhittaker, Pharmacia agreed to a settlement in which it agreed to
pay $3.5 million in damages for past infringement, $500,000 as a
royalty for 1995 and royalties at a rate of 3% per annum for all sales
in the United States, Canada and Australia until BioWhittaker's patents
in those countries expired, with a minimum royalty of $300,000 per year
on sales from the United States for years 1996-1999.
At the time of the US settlement, there was a patent pending on the
same technology in Japan. Pharmacia chose to oppose the issuance of
that patent, but the Patent was issued over Pharmacia's opposition. Now
that the patent has issued in Japan, after unsuccessful attempts to get
Pharmacia to negotiate concerning use of the patented technology in
Japan, the Company has filed a lawsuit against Pharmaria seeking
damages and an injunction against future use of the patent. The amount
of the controversy is approximately 7.5 billion yen, including
approximately 5 billion yen of damages and compensation and
approximately 2.5 billion yen representing the value of the injunctions
against Pharmacia and one of its Japanese distributors.
- - Promocell cases in Germany and France (trademark litigation by
Clonetics that commenced prior to Clonetics acquisition) CellSystems
Biotechnologie Vertriebs GmbH and Clonetics Corporation
5
<PAGE> 54
v.
Dr. Detlef Hinz and Dirk Huttner
Upper District Court Karlsruhe, Federal Republic of Germany
Case No. 16:507
and
- - Clonetics Corporation
v.
Docteur Detlef Hinz
Docteur Dirk Huttner
PromoCell
la 2 ieme Chambre du Tribunal de Grande Instance de Rennes, France
Case No. 3282/95
These cases began prior to BioWhittaker's acquisition of Clonetics
Corporation. Originally Messrs. Hinz and Huttner, trading as PromoCell
filed suit in Germany against a Clonetics distributor and Clonetics
Corporation seeking damages for trademark infringement. It was
subsequently determined that Messrs. Hinz and Huttner had trademarked
marks which were already in use by Clonetics and copied Clonetics
promotional materials. Clonetics countersued for unfair trade practices
and other causes of action seeking a cancellation of PromoCell's
trademarks that copied the Clonetics trademarks, damages and other
remedies. In the original trial court, Clonetics was awarded damages,
the cancellation of the infringing marks and other remedies. On appeal,
the intermediate court confirmed in part and reversed in part,
indicating that Clonetics was entitled to cancellation of the marks
registered by PromoCell, but was not entitled to damages. The matter is
presently on appeal to the highest court in Germany and is awaiting the
original trial in France where Clonetics had filed trademarks prior to
PromoCell's use of similar marks.
- - Dispute with Microbix concerning supply of HNK calls.
Microbix BioSystems, Inc. v. BioWhittaker, Inc. and BioWhittaker
Holdings, Inc., United States District Court for the District of
Maryland, Case number MJ9-972525.
Microbix Biosystems filed suit against BioWhittaker and BioWhittaker
Holdings alleging anti trust violations, including violations of
sections 1 and 2 of the Sherman Act, misrepresentation, promissory
estoppel and breach of a requirements contract. Plaintiff seeks treble
damages with regard to the anti-trust claims, injunctive relief
prohibiting defendants from refusing to sell HNK cells to Microbix for
five years and damages in excess of $75,000 on each of 2 counts, with
exemplary punitive damages in the amount of $10 million, an order of
specific performance, a declaration of rights and costs and expenses
and attorneys fees for each cause of action.
- - Claim of possible patent infringement of U.S. Patent No. 5,262,359.
Notice of claim received from the Centers For Disease Control in letter
dated August 8, 1997.
On or about August 12, BioWhittaker received a letter dated August 8,
6
<PAGE> 55
1997 from Marjorie Hunter, Technology Licensing Specialist
with the Centers for Disease Control and Prevention,
indicating that BioWhittaker was marketing H292 Human Lung
Mucocpidermoid Carcinoma Cells and alleging that the cells
were subject to a patent issued on November 16, 1993 relating
to methods for propagating human paramyxoviruses in the H292
cell line. She further indicated that the patent had been
exclusively licensed to Intracel Corporation. BioWhittaker is
in the process of investigating this claim. However, total
sales of the product alleged to infringe the patent have not
exceeded $20,000 in total for the period of four years since
the patent was issued.
(j) FEES.
- Engagement letter between Alex. Brown & Sons Incorporated and
BioWhittaker, Inc. dated January 2, 1997.
(m) EMPLOYEE BENEFIT PLANS: EMPLOYEE AGREEMENTS.
- Employment Agreements
Dr. Judith Blasser Offer and relocation letter
Hoda Elgendy Offer letter includes specific term and
relocation benefit already paid
Marjorie Root Relocation letter
Mary Tsao Offer and relocation letter
On or before January 17, 1996, BioWhittaker executed
employment agreements with the following persons who were then
employees of CLONETICS CORPORATION, who are currently employed
by BioWhittaker:
Michael Campbell
Jeffrey Janus
Soverin Karmiol
Jess Stengel
Sandra Weise-Valone
BioWhittaker and or its British subsidiary executed employment
agreements with the following BIOWHITTAKER, U.K. employees:
Deborah Ann Wilson Customer Support 08/01/91
Debbie Hobbs Customer Service Executive 05/01/97
David Charles Guy Product Specialist 06/15/92
Lindsay Aspinwall Sales Representative 04/14/97
Philip Strun Sales Representative 09/02/96
Jean Ibbotson Office Administrator 05/01/95
Claire Truluck Financial Assistant 01/27/97
Joanne Thorndike Sales Representative 01/01/94
Kevin Jenkyn Jones Sales Representative 01/30/95
Alan Baines General Manager Pending
In addition to the specific employment agreements listed
above, there
7
<PAGE> 56
are employment offer letters that were given to some
employees, which do not commit BioWhittaker to any specific
term of employment or termination benefits. At or prior to
commencing employment, employees are also asked to sign
employment applications which indicate employment is at will
and Confidentiality and Ownership of Inventions Agreements
designed to protect BioWhittaker's trade secrets and
inventions.
TERMINATION AGREEMENTS
George Erie termination agreement proposed, but not accepted
as of August 21, 1997.
SEVERANCE AGREEMENTS
Severance Plan for employees terminated as a result of the
sale of the diagnostic product lines to Carter-Wallace.
COMMISSION AGREEMENT PLANS.
There are a total of 12 Sales Representatives, 2 Industrial
Account Managers, 2 Regional Managers and 8 Technical Sales
Representatives (Clonetics) with Commission Agreement Plans,
as well as National Sales Managers Dennis Barger and Sandra
Weise-Valone (Clonetics), and International Sales Manager
(Clonetics) Michael Campbell.
THE FOLLOWING MANAGERS FROM CLONETICS also have Employment
Contracts as noted above which include Commission Plans:
Jeffrey Janus
Jess Stengel
Soverin Karmiol
SALARY PLANS
DISCRETIONARY BONUS PLAN
Levels of employees eligible:
Director
Manager
Supervisor
Various Scientific and Professional
1991 LONG-TERM INCENTIVE STOCK OPTION PLAN covers Executives
and Senior / Middle Management but terms of options granted to
executives and to others and at different times differ
slightly. See list of option holders included under Section
3.2(b) of this Disclosure Schedule. ALSO SEE 1994 STOCK OPTION
PLAN FOR NON-EMPLOYEE DIRECTORS.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN (SERP) for the
following
8
<PAGE> 57
employees:
Noel Buterbaugh
Thomas Winkler
Philip Rohrer
BENEFIT PLANS:
SECTION 125 CAFETERIA PLAN
Medical Blue Cross and Blue Shield
of Maryland
Prudential (Calif. Clonetics
Plan)
Dental Blue Cross and Blue Shield
of Maryland
Vision Vision Services Plan
Prescription Card and Mail-in Express Scripts
Group Term Life Ins. Medical Life
Group Universal Life, AD&D Prudential
Short Term Disability Prudential (Non-exempt)
Long Term Disability (Core & Supp) Prudential (All employees)
Travel Accident Ins. Reliance Standard
Health Care Reimb. Acct. Crawford, Slevin & Hicks
Dependent Carr Reimb. Acct. Crawford, Slevin & Hicks
RETIREMENT PLANS.
Employees Pension Plan (Target Plan).
Savings and Stock Investment Plan (401(k)).
OTHER BENEFIT PLANS:
Vacation and vacation accruals
Sick leave plan
Holidays and Floating Holidays
Educational Assistance
- - Change of control employment agreements (See Section 3.2(g)).
- - Consulting agreements with Diane Wyatt and Dr. Nick Harris (which
include rights to potential commissions).
- - Equity Compensation Plan Agreement with Alan Baines dated as of
December, 1991.
(o) CONTRACTS: DEBT INSTRUMENTS.
(i) See litigation schedule (Section 3.2(b) of this Disclosure
Schedule) - In the Erie litigation, there is a claim of breach
of a contract for employment and Microbix has alleged that it
had an unwritten contract for supply of material which has
been breached.
9
<PAGE> 58
(p) TAXES AND TAX RETURNS.
- Audited through BioWhittaker's taxable year ended October 31,
1994.
- Tax Agreement dated as of September 24, 1991 between
BioWhittaker and Whittaker Corporation with amendment dated
October 23, 1991 and indemnification provision related to
such agreement in Section 10.02 of the Anasco Stock Purchase
Agreement.
(r) ENVIRONMENTAL MATTERS.
BioWhittaker has been identified as a de minimis participant
in the Spectron/Galaxy Superfund site. We have been advised
that a settlement is about to be proposed for the de minimis
participants.
4.2 COVENANTS
(a) INTERIM OPERATIONS. (EXCEPTIONS)
(vii) See attached list of capital expenditures.
(ix) Resolution of Microbix dispute could require changes to
the Exclusive Supply Agreement with Abbott and resolution of
the Pennsylvania Regional Tissue Bank case could require
changes to the HCCC agreement.
(x) FASB 123 becomes effective in 1997 as disclosed in
BioWhittaker's most recent SEC Form 10-K. Also, the IRS
notified BioWhittaker that it will consent to a change in tax
accounting methods for inventory. A copy of the Consent
Agreement dated July 16, 1997 has been provided.
10
<PAGE> 59
BIOWHITTAKER, INC.
OPEN C.A.R. STATUS REPORT
PERIOD 9 ENDING JULY 27, 1997
<TABLE>
<CAPTION>
DEPT DEPT CAR AMOUNT AMOUNT SPENT BALANCE CAR
NO. NAME NUMBER APPROVED TO DATE OPEN DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
0610 MEDIA 171-9627-000 66,400.00 48,390.06 36,009.96 INTRASEPT FILLING MACHINE INSTALLATION
0610 MEDIA 171-9707-000 10,200.00 6,800.00 3,400.00 500L CONTAINER CONSTRUCTION
0610 MEDIA 171-9716-000 18,000.00 0.00 16,000.00 ERGO ELECTRIC LIFT & EXTENSION PALLET JACK
0610 MEDIA 171-9724-000 13,000.00 3,860.10 9,139.90 1100L TANK AGITATOR
0610 MEDIA 171-9728-000 32,100.00 3,914.01 28,185.99 FLOOR SCALE-SHUT OFF VALVES DRUM FILLS
0610 MEDIA 172-9814-000 6,790.00 0.00 5,790.00 LINE CLEARANCE
0610 MEDIA 172-9750-000 1,600.00 1,560.00 50.00 AUTOCLAVE CART PARKING STAND
0620 CELLS 171-9723-000 13,500.00 4,464.00 9,036.00 REPLACEMENT SYRINGES COZZOLI TUBING MACH
0620 CELLS 171-9748-000 8,500.00 3,241.94 5,258.06 GOWNING ROOM CELL SPECIAL LABS
0620 CELLS 171-9756-000 2,781.68 0.00 2,781.68 BWI CELLS SPECIALS LABS
0723 PILOT OPS 171-9729-000 27,800.00 0.00 27,800.00 BAG LEAK TESTING SYSTEM
0733 R&D 172-9746-000 9,589.75 183.49 9,396.26 SERUM FREE CHO MEDIA DEVELOPMENT
0614 B/C CUST SVC 172-9753-000 1,800.00 0.00 1,800.00 "ON HOLD" MESSAGE PROVIDER
0615 STER SVCS 171-9633-000 69,500.00 70,297.80 (797.90) GLASSWARE WASHER
0615 STER SVCS 172-9729-000 2,200.00 0.00 2,200.00 ADDITIONAL BOTTLE CRUSHER
0615 STER SVCS 172-9754-000 8,500.00 0.00 8,500.00 CARTS & ACCESSORIES
0640 HUMAN RESC 171-9726-000 10,785.00 5,392.00 5,393.00 OFFICE FURNITURE HR
0671 OCCUP-EAST 171-9714-000 30,000.00 8,741.48 21,258.52 NEW ROOF BLDG 1
0671 OCCUP-EAST 171-9725-000 13,500.00 0.00 13,500.00 BLDG 1 BOILER FEED WATER SYSTEM
0672 OCCUP-WEST 171-9624-000 12,000.00 16,667.98 (4,067.98) DESIGN SVCS FOR BWI CAFETERIA/EXEC OFFCS
(ON HOLD)
0672 OCCUP-WEST 171-9642-000 400,700.00 296,066.14 104,633.86 BLDG 100C ADDITION (SHIPPING)
0672 OCCUP-WEST 171-9704-000 256,000.00 279,412.08 (23,412.08) CLONETIC MFG 602-803 BLDG 100B
(AMENDMENT PENDING)
0672 OCCUP-WEST 171-9706-000 50,000.00 48,025.14 1,974.86 ROOFTOP UNIT A/C4 REPLACEMENT
0672 OCCUP-WEST 171-9713-000 90,000.00 87,700.76 2,299.22 SECOND CHILLER REPLACEMENT
0672 OCCUP-WEST 171-9717-000 450,000.00 36,767.00 414,213.00 WFI STILL & ADDITION
</TABLE>
<PAGE> 60
BIOWHITTAKER, INC.
OPEN C.A.R. STATUS REPORT
PERIOD 9 ENDING JULY 27, 1997
<TABLE>
<CAPTION>
DEPT DEPT CAR AMOUNT AMOUNT SPENT BALANCE CAR
NO. NAME NUMBER APPROVED TO DATE OPEN DESCRIPTION
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
0872 OCCUP-WEST 172-9721-000 3,500.00 3,500.00 0.00 UTILITY RELOCATION DESIGN
0872 OCCUP-WEST 172-9723-000 9,180.00 10,251.17 (1,017.17) 100B CORE RENOVATION (AMENDMENT PENDING)
0872 OCCUP-WEST 172-9751-000 1,700.00 952.30 747.70 100/100B CONNECTING CORRIDOR A/C
0872 OCCUP-WEST 172-9752-000 2,200.00 0.00 2,200.00 BLDG 100A STOREFRONT DOORS
0901 SALES 171-9712-000 45,250.00 8,858.27 38,391.73 REFRIGERATION EQUIPMENT TO SUPPORT SOS
0912 OFFICE AUTO 171-9700-000 77,000.00 36,996.69 41,000.31 BLANKET CAR FOR FY97 PC PURCHASES
1030 VIROLOGY 172-9742-000 5,000.00 4,864.49 135.51 FLOW ROTOR-RETURN PRODUCTION
1030 VIROLOGY 172-9755-000 5,500.00 0.00 5,500.00 SUPERSPEED ROTOR FOR FETLIN PRODUCTION
1348 LAL WALK 171-9637-000 11,300.00 0.00 11,300.00 90 WELL LAL DISPOSABLE MOLD
1348 LAL WALK 171-9727-000 39,000.00 0.00 39,000.00 SCREW CAP UPDATE FOR FD 6000 FAXALL
1348 LAL WALK 171-9731-000 7,330.00 7,368.58 (38.58) 13MM PART FOR WEST CAPPER
1349 LAL-CHINCO 171-9711-000 30,000.00 18,295.79 11,704.21 CHINCOTEAGUE PROCESSING ROOM HVAC
========================================
TOTAL 1,661,006.43 1,010,589.38 850,417.05
</TABLE>
<PAGE> 61
CLONETICS-BIOWHITTAKER, INC.
OPEN C.A.R. STATUS REPORT
PERIOD ENDING JULY 27, 1997
<TABLE>
<CAPTION>
DEPT DEPT CAR AMOUNT AMOUNT SPENT BALANCE CAR
NO. NAME NUMBER APPROVED TO DATE OPEN DESCRIPTION
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
0516 Media 172-9706-000 8,200.00 0.00 8,200.00 Bag Packaging System
0620 Cells 171-9701-000 160,500.00 34,216,42 126,281.58 Mig Equipment for Clonetics 802/603 Core
0620 Cells 171-9704-000 29,000.00 0.00 29,000.00 Speical Lab-Clonetics
0628 Hepatocyte 171-9703-000 19,900.00 3,390.00 16,510.00 Hepatocyte Lab Equipment
0633 Ship Clonetics 171-9702-000 14,200.00 14,691.17 (481.17) 1840 Dewar (to be Capitalized Pd 10)
0912 Off Auto 171-9709-000 4,000.00 0.00 4,000.00 Clonetics Web Page
0912 Off Auto 171-9710-000 5,200.00 0.00 5,200.00 Network Remote Access
========== ========= ==========
TOTAL 241,000.00 52,299.59 168,700.41
</TABLE>
<PAGE> 62
Bio Whittaker, Inc.
Individual Grantee Summary
Subsequent Options
Option Option Number of shares
--------------------
Graphics Data Price Granted Exercised Cancelled Available
- -------- ---- ----- ------- --------- --------- ---------
Butterbaugh/
Steel......... 11/14/91 35,674 9,062 9,062
11/14/91 66,000 64,993 84,993
HB, Stanley... 11/14/91 35,074 1,380 1,350
Warbler Thomas. 11/14/91 55,010 71,873 31,873
(Name above
level)
- ------------
Total All Grantees 127,272 127,280
<PAGE> 63
BIOWHITTAKER, INC.
INDIVIDUAL GRANTEE SUMMARY
SUBSEQUENT OPTIONS
NUMBER OF SHARES
GRANT OPTION ------------------------------------
GRANTEE DATE PRICE GRANTED EXTENDED CANCELED AVAILABLE
------- ------- ------- ------- -------- -------- ---------
(Name below this line)
Andarre Wile ......... 04/20/97 $0.3750 25,000 5,000
03/17/97 0.7990 20,000 2,000
Albrand, Joseph ...... 01/13/97 0.1230 1,000 5,000
Andrews, Rick ........ 02/17/97 0.7500 1,000 2,000
Burgus, Dennis ....... 02/17/97 0.7500 2,000 2,000
Barahby, Ron ......... 02/17/97 0.3750 6,000 5,000
02/17/97 0.7500 2,400 2,000
Blumenthal, Bob ...... 02/19/97 0.7600 1,000 1,000
Brown, Garry ......... 02/17/97 0.7500 1,000 1,000
Buterbaugh, Noey ..... 12/04/91 0.6000 100,000 100,000
03/18/93 0.7600 100,000 100,000
12/18/98 0.7500 100,000 100,000
02/17/97 0.7500 9,000 9,000
Campbell, Michael .... 02/17/97 0.7500 1,000 1,000
Chara, Patrick ....... 02/17/97 0.7500 1,000 1,000
Cooper Harold ........ 02/20/93 0.7500 5,000 1,847 3,333 0
Dirharren, John ...... 02/17/97 0.7500 100 300
Burrell, Don ......... 02/17/97 0.7500 300 300
Feminc, Linda ........ 08/07/93 0.7500 2,302 2,500
02/17/97 0.1500 300 800
Forrald, Bruce ....... 12/03/97 0.7500 19,000 14,000
03/18/93 0.7500 19,000 14,000
02/17/97 0.7500 1,000 19,000
Goodman, Glen ........ 08/14/97 0.3740 2,500 25,000
02/17/97 0.7900 300 300
Haines, Pal .......... 02/17/97 0.7500 200 200
HO, Stanley, L. ...... 12/19/97 0.6006 20,000 20,000
02/17/97 0.7500 10,000 19,000
02/17/97 0.7500 1,000 1,000
Hocheder, Paul ....... 02/17/97 0.7500 5,006 300
Jan, Silettery ....... 02/17/97 0.7500 4,000 4,000
Karim, Sov ........... 02/17/97 0.7560 4,000 1,000
<PAGE> 64
BIOWHITTAKER, INC.
INDIVIDUAL GRANTEE SUMMARY
SUBSEQUENT OPTIONS
NUMBER OF SHARES
GRANT OPTION -------------------------------------
GRANTEE DATE PRICE GRANTED EXERCISED CANCELLED AVAILABLE
------- ----- ------ ------- --------- --------- ---------
Lenon, Stanley...... 01/01/94 8.0350 1,400 1,000
01/02/95 0.5000 1,000 1,000
01/02/96 7.8250 1,000 1,000
01/02/97 8.1250 5,000 5,000
Lovernek, Bruce..... 02/17/97 6.7500 900 900
Luperebeck, Pal..... 02/17/97 6.7500 300 300
Misk, Lloyd......... 02/17/97 6.7500 2,000 2,000
McCormick, William.. 02/20/93 6.3750 1,000 5,000
02/17/95 6.7500 2,000 2,000
McGulin, Cindy...... 02/17/97 6.7500 300 300
Medan, Vaughn....... 01/17/95 7.7500 1,500 5,000
02/17/97 6.7500 2,000 2,000
McDonald, Rick...... 02/17/97 6.7500 300 300
Olson, Leif......... 01/02/91 6.6400 10,000 10,000
02/10/92 6.7500 20,000 20,000
02/17/97 6.7500 3,000 3,000
Punter, Joe......... 02/17/97 6.7500 200 200
Patchisk, Richard... 02/17/97 6.7500 1,000 1,000
Pescela, Sherry..... 02/20/95 5.1750 2,500 2,500
02/17/97 6.7500 300 300
Plater, Robert...... 02/17/95 7.7500 5,000 5,000
02/17/97 6.7500 1,000 1,000
Regiotta, Herb...... 02/17/97 6.7500 1,000 1,000
Robertson, Marcus... 02/20/95 5.1750 2,500 2,500
02/17/97 6.7500 300 300
Rnww, Philip........ 12/02/91 6.1000 50,000 50,000
02/10/97 6.7500 75,000 75,000
12/10/97 0.6000 50,000 50,000
02/17/97 6.7500 4,000 4,000
Rouseau, James...... 08/20/95 5.2750 5,000 5,000
Routshcn, Charles... 02/17/97 6.7500 500 500
Schfrafer, Jess..... 02/17/97 6.7500 300 300
Sever, John......... 01/02/94 6.6250 1,000 1,000
01/20/95 6.5000 1,000 1,000
01/02/96 7.6250 1,000 1,000
01/02/97 6.1250 5,000 5,000
Sheber, Ralph....... 04/20/95 7.1750 5,000 5,000
02/17/97 6.7500 2,000 2,000
<PAGE> 65
BIOWHITTAKER, INC.
INDIVIDUAL GRANTEE SUMMARY
SUBSEQUENT OPTIONS
NUMBER OF SHARES
GRANT OPTION ------------------------------------
GRANTEE DATE PRICE GRANTED EXTENDED CANCELED AVAILABLE
------- ------- ------- ------- -------- -------- ---------
(Name below this line)
Shobes, Dotte ........ 02/08/97 $0.7500 300 300
Staples, Dudley ...... 12/11/95 0.7500 3,000 3,000
Stengel, Jesse ....... 02/17/97 0.7500 1,000 1,000
Frank, Joy ........... 02/17/97 0.3750 5,600 3,000
02/17/97 0.7560 2,000 2,000
Valore, Sandy ........ 02/17/97 0.7500 1,000 1,000
Vanderhagen, Brigota . 04/20/93 0.3750 5,000 5,000
Vehneskey, Chamber ... 04/20/93 0.3750 2,500 2,500
02/17/97 0.7500 1,000 1,000
Wilder, Thomas ....... 12/02/91 0.8000 50,000 50,000
03/16/93 0.7600 75,000 71,000
12/10/93 0.9000 100,000 100,000
02/17/97 0.7500 9,000 9,000
(New above this line)
- -----------------------------------------------------------------------------
640,100 1,111 1,333 640,000
<PAGE> 1
Exhibit 6
ASSUMPTION AGREEMENT
WHEREAS, certain change of control employment agreements dated March 11,
1997 were entered into by and between BioWhittaker, Inc. ("BioWhittaker") and
Messrs. Thomas Winkler, Philip L. Rohrer, Jr., Leif Olsen and F. Dudley Staples,
Jr., each of whom is an executive office of BioWhittaker (the "Agreements"); and
WHEREAS, BioWhittaker has entered into an Agreement and Plan of Merger,
dated August 22, 1997, with Cambrex Corporation ("Cambrex") and BW Acquisition
Corporation, a wholly owned subsidiary of Cambrex ("BW Acquisition") (the "Plan
of Merger"), pursuant to which BW Acquisition will be merged into BioWhittaker
following the completion of a tender offer as described in the Plan of Merger
(the "Tender Offer"), and BioWhittaker shall be the surviving company as a
wholly owned subsidiary of Cambrex (the "Surviving Company").
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Cambrex hereby agrees to cause the Surviving Company, pursuant to
Section 11(c) of the Agreements, to, and the Surviving Company shall,
assume expressly the obligations of BioWhittaker under the Agreements and
perform such obligations in the same manner and to the same extent as
BioWhittaker would be required to perform them if no such succession had
taken place effective as of immediately following the effective date of the
merger as defined in the Plan of Merger.
2. This Assumption Agreement may be executed in two or more
counterparts each of which shall be deemed to constitute an original, but
such counterparts together shall be deemed to be one and the same
instrument and to become effective when one or more counterparts have been
signed by each of the parties hereto. It shall not be necessary in making
proof of this Agreement or any counterpart hereof to produce or account for
the other counterpart.
<PAGE> 2
IN WITNESS HEREOF, the parties hereto, intending to be legally bound, have
caused this Assumption of Obligations Under Change in Control Employment
Agreements to be executed by their duly authorized representatives as of August
22, 1997.
BIOWHITTAKER, INC.
By:
Print Name:
Title:
Date:
CAMBREX CORPORATION
By:
Print Name:
Title:
Date:
BW ACQUISITION CORPORATION
By:
Print Name:
Title:
Date:
<PAGE> 1
August 18, 1997 REVISED
[Name]
BioWhittaker, Inc.
8830 Biggs Ford Road
Walkersville, MD 21793
As discussed with you on July 22, 1997 it is our intention to provide the
following primary terms and conditions of employment after completion of the
acquisition by Cambrex of BioWhittaker. We acknowledge that you have entered
into a Change of Control Employment Agreement with BioWhittaker, Inc. and that
the terms and conditions described below apply to the extent they are not
covered by the Change of Control agreement and upon the expiration of the
agreement.
1. You will be employed by BioWhittaker as [title] having responsibility for
_____________________________, reporting directly to ______________of
BioWhittaker, Inc.
2. Your annual salary will be at a rate of $___________. All salary changes
above $100,000/year are subject to approval of the Compensation Committee of the
Cambrex Corporation Board of Directors. Salary levels are generally reviewed
annually. You will also be eligible to participate in the Cambrex Earnings
Improvement Program at a _______ of salary target level. This plan is currently
based on improvement in net income and ROI of both Cambrex and BioWhittaker and
can pay annual bonuses from 0% up to a maximum of 100% of salary subject to
approval by the Compensation Committee. It is agreed that for 1998 you will
receive a guaranteed minimum EIP bonus equal to your current bonus target award
under the BioWhittaker 1997 Management Incentive Compensation Plan.
3. You will be granted, subject to approval by the Cambrex Board of Directors,
an option to purchase ___________ shares of Cambrex Corporation subject to the
terms and conditions of Cambrex's 1996 Performance Stock Option Plan. The
purchase price per share will be set based on the closing price of Cambrex
common stock on the date of the merger with Cambrex. It is anticipated that
these shares will vest at $65, $70 and $75 per the conditions set out in the
option agreement.
4. You will continue to be entitled to participate and receive benefits under
the existing welfare benefits plans (including, medical, prescription, dental,
disability, life insurance
<PAGE> 2
Page 2
[Name]
August 18, 1997
etc.) or similar plans under Cambrex which in the aggregate will provide a
similar quality of benefits.
5. Based on Plan provisions, you will be entitled to any accrued benefits under
the BioWhittaker defined contribution plans (retirement plans), [SERP] and
Savings Plan. Cambrex intends to recognize any liability for your benefits that
have accrued under the [BioWhittaker, Inc. Supplemental Executive Retirement
Plan], whether or not funded, that have accrued as of the date of the merger.
Cambrex will review with you the desirability of implementing after the merger
of the two companies Cambrex's defined benefit, Savings and SERP plans for
BioWhittaker employees.
6. You will continue to receive your current automobile allowance and other
reasonable fringe benefits provided by the company.
7. Any termination of your employment by Cambrex (not including death,
disability, or retirement), other than for Cause, shall result in a severance
payment equal to your monthly base salary for up to twelve months, from your
date of separation or until you secure other employment, whichever occurs
sooner. For the purposes of this provision, the term "Cause" shall mean:
(i) the willful and continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to the
Executive by the Chief Executive Officer or his designee of Cambrex Corporation,
which specifically identifies the manner in which the Chief Executive Officer
believes that the Executive has not substantially performed the Executive's
duties, or
(ii) the willful engaging by the Executive in illegal conduct or gross
misconduct which is demonstrably injurious to the Company,
(iii) commission of an intentional act of fraud, embezzlement or theft
by the Executive in connection with the Executive's duties or in the course of
the Executive's employment,
(iv) causing intentional, wrongful damage to property of the Company,
(v) intentionally and wrongfully disclosing secret processes or other
material confidential information of the Company or its customers, or
<PAGE> 3
Page 3
[Name]
August 18, 1997
(vi) participating without the Company's consent in the management of
any business enterprise which engages in substantial and direct competition with
the Company.
8. You agree that you are expected to play a prominent role in the development
of the BioWhittaker, Inc. business and will obtain confidential information and
trade secrets about the business. Therefore, it is a condition to Cambrex's
obligations under the Agreement and Plan of Merger Among Cambrex Corporation, BW
Acquisition Corporation and BioWhittaker, Inc. that you are bound by the
provisions of this Section 8.
You agree that during your employment with BioWhittaker, Inc. and during the two
year period following your termination for any reason (the "Restriction
Period"), you will not become associated with any entity, whether as a
principal, partner, employee, consultant or shareholder (other than as a holder
of not in excess of 1% of the outstanding voting shares of any publicly traded
company), that is actively engaged in any geographic area in any business which
is in competition with the business of BioWhittaker, Inc.
If you seek employment with a company which has several divisions, only certain
of which are competitive with BioWhittaker, Inc. and you seek employment with a
division which would not be deemed competitive with BioWhittaker, Inc., then you
may accept such employment, provided that the new employer is informed of the
restriction on your duties.
Whether any entity competes with BioWhittaker, Inc. shall be determined in good
faith by the Compensation Committee of the Board of Directors of Cambrex. Such
determination shall be made within 10 business days after receipt by an officer
of Cambrex of a written request for such a determination.
You agree that during the Restriction Period, you will not directly or
indirectly induce any employee of BioWhittaker, Inc. or any of its affiliates to
terminate employment with such entity, and will not directly or indirectly,
either individually or as owner, agent, employee, consultant or otherwise,
employ or offer employment to any person who is or was employed by BioWhittaker,
Inc. or an affiliate thereof, unless such person shall have ceased to be
employed by such entity for a period of at least 6 months.
You agree that during the Restriction Period, you will not, directly or
indirectly, solicit for yourself or for your benefit, any person, entity or
corporation which was a customer, client or distributor of BioWhittaker, Inc. at
any time during the Restriction Period, other than any such solicitation as part
of your responsibilities during your employment with
<PAGE> 4
Page 4
[Name]
August 18, 1997
BioWhittaker, Inc. or any such solicitation that does not compete with any of
the sales or product lines of BioWhittaker, Inc.
The provisions of this paragraph 8 shall survive the termination of your
employment.
It is our intent that the compensation and benefits package provided to you be
similar in aggregate to your current arrangements. If you would like to discuss
this further, please contact me directly.
This agreement supersedes and replaces the agreement between Cambrex and
yourself dated July 29, 1997.
_________, we look forward to working with you to continue BioWhittaker's
profitable growth.
Sincerely,
/s/ Steven M. Klosk Agreed and Accepted:
Steven M. Klosk /s/ 8/19/97
-------------------------------
Executive Vice President - Administration [Name of Executive] Date
<PAGE> 1
CAMBREX CORPORATION
One Meadowlands Plaza
East Rutherford, NJ 07073
Tel: (201) 804-3000 Fax: (201) 804-9852
August 18, 1997
REVISED
Mr. Noel L. Buterbaugh
BioWhittaker, Inc.
8830 Biggs Ford Road
Walkersville, MD 21793
Dear Noel:
As discussed with you on July 22, 1997 it is our intention to provide the
following primary terms and conditions of employment after completion of the
acquisition by Cambrex of BioWhittaker:
1. You will be employed by BioWhittaker as President & CEO having full
responsibility for the business operations and reporting directly to the
President & CEO of Cambrex Corporation. As discussed, it is your intention and
our desire for you to continue in this role for the next one-two years and to
consider a possible consulting arrangement after your retirement from full-time
employment. It is your intention and our understanding that you may be retiring
prior to the contemplated two years, if the projected SERP Retirement Benefit is
less than the benefit that would have been received as of the date of the
acquisition.
2. Your annual salary will be at a rate of $270,005. All salary changes above
$100,000/year are subject to approval of the Compensation Committee of the
Cambrex Corporation Board of Directors. Salary levels are generally reviewed
annually. You will also be eligible to participate in the Cambrex Earnings
Improvement Program (EIP) at 40% of salary target level. This plan is currently
based on improvement in net income and ROI of both Cambrex and BioWhittaker and
can pay annual bonuses from 0% up to a maximum of 100% of salary subject to
approval by the Compensation Committee. It is agreed that for 1998 you will
receive a guaranteed minimum EIP bonus equal to your current bonus target award
under the BioWhittaker 1997 Management Incentive Compensation Plan.
<PAGE> 2
Page 2
Mr. Noel L. Buterbaugh
August 18, 1997
3. You will be granted, subject to approval by the Cambrex Board of Directors,
an option to purchase 25,000 shares of Cambrex Corporation subject to the terms
and conditions of Cambrex's 1996 Performance Stock Option Plan. The purchase
price per share will be set based on the closing price of Cambrex common stock
on the date of the merger with Cambrex. It is anticipated that these shares will
vest at $65, $70 and $75 per the conditions set out in the option agreement, or
the option will vest 100% two years after the date of grant subject to your
continued employment with BioWhittaker/Cambrex (or sooner if necessary, to
coincide with your retirement plans).
4. You will continue to be entitled to participate and receive benefits under
the existing welfare benefits plans (including, medical, prescription, dental,
disability, life insurance etc.) or similar plans under Cambrex, which in the
aggregate will provide a similar quality of benefits.
5. Based on Plan provisions, you will be entitled to any accrued benefits under
the BioWhittaker defined contribution plans (retirement plans), SERP and Savings
Plan. Cambrex intends to recognize any liability for your benefits that have
accrued under the BioWhittaker, Inc. Supplemental Executive Retirement Plan,
whether or not funded, that have accrued as of the date of the merger.
Cambrex will review with you the desirability of implementing after the merger
of the two companies Cambrex's defined benefit, Savings and SERP plans for
BioWhittaker employees.
6. You will continue to receive your current automobile allowance and other
reasonable fringe benefits provided by the company.
7. Any termination of your employment by Cambrex (not including death,
disability, or retirement), other than for Cause shall result in a severance
payment equal to your monthly base salary for up to twelve months, from your
date of separation or until you secure other employment, whichever occurs
sooner. For the purposes of this provision, the term "Cause" shall mean:
<PAGE> 3
Page 3
Mr. Noel L. Buterbaugh
August 18, 1997
(i) the willful and continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to the
Executive by the Chief Executive Officer or his designee of Cambrex Corporation,
which specifically identifies the manner in which the Chief Executive Officer
believes that the Executive has not substantially performed the Executive's
duties, or
(ii) the willful engaging by the Executive in illegal conduct or gross
misconduct which is demonstrably injurious to the Company,
(iii) commission of an intentional act of fraud, embezzlement or theft
by the Executive in connection with the Executive's duties or in the course of
the Executive's employment,
(iv) causing intentional, wrongful damage to property of the Company,
(v) intentionally and wrongfully disclosing secret processes or other
material confidential information of the Company or its customers, or
(vi) participating without the Company's consent in the management of
any business enterprise which engages in substantial and direct competition with
the Company.
8. You agree that you are expected to play a prominent role in the development
of the BioWhittaker, Inc. business and will obtain confidential information and
trade secrets about the business. Therefore, it is a condition to Cambrex's
obligations under the Agreement and Plan of Merger Among Cambrex Corporation, BW
Acquisition Corporation and BioWhittaker, Inc. that you are bound by the
provisions of this Section 8.
<PAGE> 4
Page 4
Mr. Noel L. Buterbaugh
August 18, 1997
You agree that during your employment with BioWhittaker, Inc. and during the two
year period following your termination for any reason (the "Restriction
Period"), you will not become associated with any entity, whether as a
principal, partner, employee, consultant or shareholder (other than as a holder
of not in excess of 1% of the outstanding voting shares of any publicly traded
company), that is actively engaged in any geographic area in any business which
is in competition with the business of BioWhittaker, Inc.
If you seek employment with a company which has several divisions, only certain
of which are competitive with BioWhittaker, Inc. and you seek employment with a
division which would not be deemed competitive with BioWhittaker, Inc., then you
may accept such employment, provided that the new employer is informed of the
restriction on your duties.
Whether any entity competes with BioWhittaker, Inc. shall be determined in good
faith by the Compensation Committee of the Board of Directors of Cambrex. Such
determination shall be made within 10 business days after receipt of notice by
an officer of Cambrex for such a determination.
You agree that during the Restriction Period, you will not directly or
indirectly induce any employee of BioWhittaker, Inc. or any of its affiliates to
terminate employment with such entity, and will not directly or indirectly,
either individually or as owner, agent, employee, consultant or otherwise,
employ or offer employment to any person who is or was employed by BioWhittaker,
Inc. or an affiliate thereof, unless such person shall have ceased to be
employed by such entity for a period of at least 6 months.
You agree that during the Restriction Period, you will not, directly or
indirectly, solicit for yourself or for your benefit, any person, entity or
corporation which was a customer, client or distributor of BioWhittaker, Inc. at
any time during the Restriction Period, other than any such solicitation as part
of your responsibilities during your employment with BioWhittaker, Inc. or any
such solicitation that does not compete with any of the sales or product lines
of BioWhittaker, Inc.
<PAGE> 5
Page 5
Mr. Noel L. Buterbaugh
August 18, 1997
The provisions of this paragraph 8 shall survive the termination of your
employment.
It is our intent that the compensation and benefits package provided to you be
similar in aggregate to your current arrangements. If you would like to discuss
this further, please contact me directly.
This agreement supersedes and replaces the agreement between Cambrex and
yourself dated July 29, 1997.
Noel, we look forward to working with you to continue BioWhittaker's profitable
growth.
Sincerely,
Agreed and Accepted:
Steven M. Klosk /s/ 8-19-97
Executive Vice President - Administration ------------------------------
Noel L. Buterbaugh Date
<PAGE> 1
Execution Copy
EXHIBIT 11(c)3
MANAGEMENT STOCKHOLDERS AGREEMENT
MANAGEMENT STOCKHOLDERS AGREEMENT dated as of August 22, 1997
among Cambrex Corporation, a Delaware corporation ("Parent"), BW Acquisition
Corporation, a Delaware corporation ("Purchaser") and the parties listed on
Schedule A attached hereto (each a "Stockholder" and, collectively, the
"Stockholders").
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 each Stockholder enter
into, and each such 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:
<PAGE> 2
1. Representations and Warranties of Each Stockholder. Each
Stockholder hereby severally as to itself represents and warrants to Parent as
follows:
(a) Ownership of Shares and Stock Options. (i) Such
Stockholder (together, in the case of Mr. Buterbaugh, with Mr.
Buterbaugh's wife) 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 such
Stockholder's name on Schedule A hereto (the "Existing Shares", and
together with any shares of Company Common Stock acquired by such
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 such Stockholder's name on Schedule A constitute all of the
shares of Company Common Stock owned by such Stockholder.
(iii) Such 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 such
Stockholder's Existing Shares and with no restrictions on such rights,
subject to applicable federal securities laws and the terms of this
Agreement.
(iv) Each Stockholder owns validly issued and outstanding
options (the "Stock Options") to acquire the number of shares of
Company Common Stock set forth opposite such Stockholder's name on
Schedule A hereto (all such shares underlying such Stockholder's Stock
Options being referred to herein collectively as the "Option Shares").
All such Stock Options are fully vested and freely exercisable by such
Stockholder to
2
<PAGE> 3
acquire any and all such Option Shares at any time at his option.
(b) Power; Binding Agreement. Such Stockholder has all
requisite legal capacity, power and authority to enter into and perform
all of such Stockholder's obligations under this Agreement. The
execution, delivery and performance of this Agreement by such
Stockholder will not violate any other agreement to which such
Stockholder is a party or by which such 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 such Stockholder and
constitutes a valid and binding agreement of such Stockholder,
enforceable against such 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. If such Stockholder is married and such Stockholder's Shares
constitute community property or otherwise require spousal or other
approval for this Agreement to be legal, valid and binding, this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, such Stockholder's
spouse, enforceable against such person 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.
(c) No Conflicts. Except for filing under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976,
3
<PAGE> 4
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 such Stockholder and the consummation by such Stockholder
of the transactions contemplated hereby and (ii) neither the execution
and delivery of this Agreement by such Stockholder nor the consummation
by such Stockholder of the transactions contemplated hereby nor
compliance by such Stockholder with any of the provisions hereof shall
(A) conflict with or result in any breach of the applicable
organization documents applicable to such 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 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 such 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 such Stockholder or any of such
Stockholder's properties or assets.
(d) Such Stockholder's Shares and the certificates
representing such Shares are now and at all times during the term
hereof will be held by such Stockholder, or by a nominee or custodian
for the benefit of such 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.
4
<PAGE> 5
(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 in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
such Stockholder.
(f) Such Stockholder understands and acknowledges that Parent
is entering into the Merger Agreement in reliance upon such
Stockholder's execution and delivery of this Agreement.
2. Agreement to Tender. Shares. Each Stockholder hereby
irrevocably agrees to duly tender all of the Shares of such 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. Each Stockholder hereby severally as to itself
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, such Stockholder shall vote (or
cause to be voted) the Shares of such 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
5
<PAGE> 6
Company or its subsidiaries; (B) a sale, lease or 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. Such 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. EACH 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. EACH 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 SUCH STOCKHOLDER WITH RESPECT TO SUCH STOCKHOLDER'S SHARES.
4. Certain Covenants of Stockholders. Except in accordance
with the terms of this Agreement, each Stockholder hereby severally as to
itself covenants and agrees as follows:
6
<PAGE> 7
(a) No Solicitation. Subject to the last sentence of this
Section 4(a), no Stockholder shall, 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. If any Stockholder receives any such inquiry or
proposal, then such 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. Subject to the last sentence of this Section 4(a), each
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 any Stockholder who is an officer or director
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.
(b) Restriction on Transfer, Proxies and Non-Interference;
Restriction on Withdrawal. No Stockholder shall, 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 such Stockholder's Shares, Stock Options or
Option Shares or any interest therein; (ii) except as contemplated hereby, grant
any proxies or powers of attorney, deposit any Shares, Stock Options or Option
Shares into a voting trust or enter into a voting agreement with respect to any
Shares, Stock Options or Option Shares; or (iii) take any action that would make
any representation or warranty of such
7
<PAGE> 8
Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling such Stockholder from performing such Stockholder's
obligations under this Agreement.
(c) Waiver of Appraisal and Dissenter's Rights. Each
Stockholder hereby waives any rights of appraisal or rights to dissent from the
Merger that such Stockholder may have.
5. Option. (a) Each Stockholder, severally as to itself and
not jointly, hereby grants to Purchaser an irrevocable option (the "Option") to
purchase (i) such Stockholder's Shares and (ii) all Option Shares underlying all
of such Stockholder's Stock Options, in each case on the terms and subject to
the conditions set forth herein.
(b) The Option may be exercised by Purchaser, as a whole with
respect to all Shares and not in part, at any time and from time to time from
and after any time when the Merger Agreement is terminated in accordance with
its terms and prior to the Termination Date, subject to the conditions set forth
in Section 5(f). In addition, the Option may be exercised by Purchaser, as a
whole with respect to all Option Shares and not in part, at any time and from
time to time following the earlier to occur of (i) Purchaser's purchase of any
Shares pursuant to the Offer and (ii) any time when the Merger Agreement is
terminated in accordance with its terms and prior to the Termination Date, in
each case 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 each 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.
8
<PAGE> 9
(d) At the Closing, each Stockholder shall deliver to
Purchaser (or its designee) all of such Stockholder's Shares and Option Shares,
as the case may be, required to be delivered pursuant to the Option Notice by
delivery of the Shares and the Option Shares, as the case may be, duly endorsed
to Purchaser or accompanied by stock powers duly executed in favor of Purchaser,
with all necessary stock transfer stamps affixed; it being understood and agreed
that to the extent any Stockholder is required to exercise his Stock Options in
order to deliver the Option Shares to Purchaser, such Stockholder will exercise
such Stock Options in accordance with their terms.
(e) At the Closing, Purchaser shall pay, and Parent shall
cause Purchaser to pay, to each Stockholder, by wire transfer in immediately
available funds to an account specified by such 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 and Option Shares purchased from such
Stockholder pursuant to the exercise of the Option.
(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 or
the Option Shares, as the case may be, pursuant to the exercise of the
Option;
(ii) any waiting period applicable to the consummation of the
purchase and sale of the Shares or the Option Shares, as the case may
be, pursuant to the exercise of the Option under the HSR Act shall have
expired or been terminated; and
9
<PAGE> 10
(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. Each 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;
it being understood and agreed that notwithstanding anything in this
Stockholders Agreement to the contrary, none of the provisions of this Agreement
(including, without limitation, any of the representations and warranties made
by such Stockholder) shall apply to any shares of Company Common Stock which are
beneficially owned by such Stockholder by virtue of such Stockholder's
participation in the BioWhittaker, Inc. Savings and Stock Investment Plan or by
virtue of such Stockholder's status as a trustee of such Plan.
8. Stop Transfer. Each Stockholder agrees with, and covenants
to, Parent that such Stockholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of such Stockholder's Shares, unless such transfer is made in
compliance with the Offer or this Agreement. Each Stockholder agrees, with
respect to any Shares in certificated form, that such Stockholder will submit to
the Company, within ten business days after the date hereof,
10
<PAGE> 11
the certificates representing such Shares in order for the Company will 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." Each Stockholder agrees that within ten business days after the
date hereof, such 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 obligations under
the Merger Agreement and none of the Stockholders are in breach of their
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) 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 a Stockholder,
Parent and (B) in
11
<PAGE> 12
the case of an assignment by Parent or Purchaser, each 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; provided, however, that Schedule A may be
supplemented by Parent without the agreement of any other party, by adding the
name and other relevant information concerning any stockholder of the Company
who agrees to be bound by the terms of this Agreement, and thereafter such added
stockholder shall be treated as a "Stockholder" for all purposes of this
Agreement.
(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.
12
<PAGE> 13
If to a Stockholder, to such Stockholder's address
or facsimile number set forth in Schedule A
hereto,
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
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
13
<PAGE> 14
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.
14
<PAGE> 15
IN WITNESS WHEREOF, Parent, Purchaser and each Stockholder
have caused this Agreement to be duly executed as of the day and year first
above written.
CAMBREX CORPORATION
BY: /s/ Peter Tracey
____________________
Name: Peter Tracey
Title: Executive Vice President
BW ACQUISITION CORPORATION
BY: /s/ Peter E. Thauer
____________________
Name: Peter E. Thauer
Title: Vice President
/s/ Noel Buterbaugh
-------------------------
Noel Buterbaugh
/s/ Mrs. Noel Buterbaugh
-------------------------
Mrs. Noel Buterbaugh
/s/ Thomas Winkler
-------------------------
Thomas Winkler
/s/ Philip Rohrer
-------------------------
Philip Rohrer
/s/ Leif Olsen
-------------------------
Leif Olsen
<PAGE> 16
/s/ Dudley Staples
-------------------------
Dudley Staples
/s/ Joseph Alibrandi
-------------------------
Joseph Alibrandi
<PAGE> 17
Schedule A
<TABLE>
<CAPTION>
Officer/Director Shares Owned Stock Options Owned
---------------- ------------ -------------------
Substitute Subsequent Stock
Stock Owned Stock Options/Director
Directly Options Options
<S> <C> <C> <C>
Noel Buterbaugh 5,020(1) 94,055 309,000
President & CEO
BioWhittaker, Inc.
8830 Biggs Ford Road
Walkersville, MD 21793-0127
Phone: 301-898-7025, ext. 2308
Fax: 301-845-6099
Thomas R. Winkler 500 31,873 231,000
Executive Vice President
and Chief Operating Officer
BioWhittaker, Inc.
8830 Biggs Ford Road
Walkersville, MD 21793-0127
Phone: 301-898-7025, ext. 2310
Fax: 301-845-6099
Philip L. Rohrer 1,900 ----- 179,000
Vice President
and Chief Financial Officer
BioWhittaker, Inc.
8830 Biggs Ford Road
Walkersville, MD 21793-0127
Phone: 301-898-7025, ext. 2369
Fax: 301-845-1006
Leif Olsen 0 ----- 33,000
Vice President Regulatory Affairs
BioWhittaker, Inc.
8830 Biggs Ford Road
Walkersville, MD 21793-0127
Phone: 301-898-7025, ext. 2313
Fax: 301-845-6452
</TABLE>
<PAGE> 18
<TABLE>
<CAPTION>
Officer/Director Shares Owned Stock Options Owned
---------------- ------------ -------------------
Substitute Subsequent Stock
Stock Owned Stock Options/Director
Directly Options Options
<S> <C> <C> <C>
F. Dudley Staples, Jr. 0 ----- 28,000
Secretary and General Counsel
BioWhittaker, Inc.
8830 Biggs Ford Road
Walkersville, MD 21793-0127
Phone: 301-898-7025, ext. 2362
Fax: 301-845-1006
Joseph F. Alibrandi 701,052 ----- 5,000
Chairman, BioWhittaker, Inc.
Whittaker Corporation
1955 N. Surveyor Avenue
Simi Valley, CA 93063
Phone: 805-584-4140
Fax: 805-526-1082
</TABLE>
(1) 720 shares are jointly owned by Mr. Buterbaugh's wife.
2
<PAGE> 1
Execution Copy
EXHIBIT 11(c)2
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:
<PAGE> 2
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
2
<PAGE> 3
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 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.
3
<PAGE> 4
(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, representa-
4
<PAGE> 5
tion 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 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
5
<PAGE> 6
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.
(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
6
<PAGE> 7
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
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<PAGE> 8
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.
(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
8
<PAGE> 9
expeditious manner practicable, the transactions contem plated 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 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
9
<PAGE> 10
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.
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<PAGE> 11
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:
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.
11
<PAGE> 12
(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
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
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<PAGE> 13
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.
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<PAGE> 14
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: /s/ Peter Tracey
____________________
Name: Peter Tracey
Title: Executive Vice President
BW ACQUISITION CORPORATION
BY: /s/ Peter E. Thauer
____________________
Name: Peter E. Thauer
Title: Vice President
ANASCO GmbH
BY: /s/ Gerhard Huber
____________________
Name: Dr. Gerhard Huber
Title: Authorized Signatory
BY: /s/ Jurgen Romhild
____________________
Name: Jurgen Romhild
Title: Authorized Signatory
<PAGE> 15
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
<PAGE> 1
EXHIBIT 11
AMENDMENT NO. 1 TO
THE STOCKHOLDER PROTECTION RIGHTS AGREEMENT
DATED AS OF JANUARY 20, 1995
AMENDMENT NO. 1, dated as of August 22, 1997, to the STOCKHOLDER PROTECTION
RIGHTS AGREEMENT, dated as of January 20, 1995 (the "Rights Agreement"), between
BIOWHITTAKER, INC., a Delaware corporation (the "Company") and BankBoston, N.A.,
as Rights Agent (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved an Agreement
and Plan of Merger (the "Merger Agreement") by and among the Company, Cambrex
Corporation, a Delaware corporation ("Cambrex") and BW Acquisition Corporation,
a Delaware corporation ("BW"), providing for the acquisition, by BW, of the
outstanding shares of common stock, par value $0.01 per share ("Common Stock")
of the Company and the merger of BW into the Company (the "Merger"); and
WHEREAS, the willingness of Cambrex and BW to enter into the Merger
Agreement is conditioned, among other things, on the amendment of the Rights
Agreement so that the consummation of all or any of the transactions
contemplated by the Merger Agreement will not trigger the exercisability of the
Rights (as defined in the Rights Agreement) or the separation of the Rights from
the shares of Common Stock to which they are attached, or cause the Distribution
Date (as defined in the Rights Agreement) to occur; and
WHEREAS, Section 27 of the Rights Agreement provides, among other things,
that prior to the Distribution Date, subject to the restrictions and limitations
contained therein, the Company and the Rights Agent shall, if the Company so
directs, supplement or amend any provision of the Rights Agreement without the
approval of any holders of certificates representing shares of Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth in the Rights Agreement and in this Amendment, the parties hereby agree as
follows:
1. Section 1 of the Rights Agreement is hereby amended by the addition
thereto of the following definitions:
"BW" shall mean BW Acquisition Corporation, a Delaware corporation
that is a wholly owned subsidiary of Cambrex.
"Cambrex" shall mean Cambrex Corporation, a Delaware corporation.
"Merger" shall mean the merger of BW into the Company, as contemplated
by the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated
as of August 22, 1997, by and among Cambrex, the Company and BW, as the
same may be amended from time to time in accordance with the terms thereof.
2. The definition of "Acquiring Person" contained in Section 1 of the
Rights Agreement shall be amended by the addition to the end thereof of the
following:
Notwithstanding anything contained herein to the contrary, none of Cambrex,
BW or any affiliate or associate thereof shall be or become an "Acquiring
Person" as a result of (i) any announcement, commencement or consummation
of the tender offer contemplated by the Merger Agreement, (ii) the
execution of the Merger Agreement (or any amendment thereto in accordance
with the terms thereof) or the consummation of any of the transactions
contemplated thereby, or (iii) the execution of any lock-up, stockholder or
similar agreements, including, but not limited to, that certain
Stockholders Agreement dated as of August 22, 1997, by and among Cambrex,
BW and Anasco GmbH (the "Anasco Agreement") and that certain Stockholders
Agreement dated as of August 22, 1997, and by and among Cambrex, BW and
Joseph F. Alibrandi, Noel L. Buterbaugh, Thomas R. Winkler, Philip L.
Rohrer, Jr.,
<PAGE> 2
and F. Dudley Staples, Jr. (the "Management Stockholders Agreement"), as
contemplated by, or in connection with, the Merger Agreement.
3. The definition of "Distribution Date" contained in Section 1 of the
Rights Agreement shall be amended by the addition to the end thereof of the
following:
Notwithstanding anything contained herein to the contrary, no Distribution
Date shall occur as a result of (i) any announcement, commencement or
consummation of the tender offer contemplated by the Merger Agreement, (ii)
the execution of the Merger Agreement (or any amendment thereto in
accordance with the terms thereof) or the consummation of any of the
transactions contemplated thereby, or (iii) the execution of any lock-up,
stockholder or similar agreements, including, but not limited to, the
Anasco Agreement and the Management Stockholders Agreement, as contemplated
by, or in connection with, the Merger Agreement, and no Distribution Date
will, in any event, occur prior to the Effective Time (as defined in the
Merger Agreement) of the Merger or the earlier termination of the Merger
Agreement.
4. The definition of "Expiration Date" contained in Section 1 of the Rights
Agreement shall be amended by the replacement of the word "earlier" with the
word "earliest", by the deletion of the word "and" and its replacement by a
comma immediately prior to the symbol "(b)" and by the addition to the end
thereof of the following:
and (c) the Effective Time (as defined in the Merger Agreement).
5. The definition of "Stock Acquisition Date" contained in Section 1 of the
Rights Agreement shall be amended by the addition to the end thereof of the
following:
Notwithstanding anything contained herein to the contrary, no Stock
Acquisition Date shall occur as a result of (i) any announcement,
commencement or consummation of the tender offer contemplated by the Merger
Agreement, (ii) the execution of the Merger Agreement (or any amendment
thereto in accordance with the terms thereof) or the consummation of any of
the transactions contemplated thereby, or (iii) the execution of any
lock-up, stockholder or similar agreements, including, but not limited to,
the Anasco Agreement and the Management Stockholders Agreement, as
contemplated by, or in connection with, the Merger Agreement.
6. Section 11 of the Rights Agreement shall be amended by the addition to
the end thereof of the following:
(q) Notwithstanding anything contained herein to the contrary, the
provisions of this Section 11 shall not apply to or be triggered by (i) any
announcement, commencement or consummation of the tender offer contemplated
by the Merger Agreement, (ii) the execution of the Merger Agreement (or any
amendment thereto in accordance with the terms thereof) or the consummation
of any of the transactions contemplated thereby, or (iii) the execution of
any lock-up, stockholder or similar agreements, including, but not limited
to, the Anasco Agreement and the Management Stockholders Agreement, as
contemplated by, or in connection with, the Merger Agreement, and no
Distribution Date will, in any event, occur prior to the Effective Time (as
defined in the Merger Agreement) of the Merger or the earlier termination
of the Merger Agreement.
7. Section 13 of the Rights Agreement shall be amended by the addition to
the end thereof of the following:
(d) Notwithstanding anything contained herein to the contrary, the
provisions of this Section 13 shall not apply to or be triggered by the
execution of the Merger Agreement (or any amendment thereto in accordance
with the terms thereof) or the consummation of any of the transactions
contemplated thereby.
8. The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Amendment No. 1.
9. Except as set forth herein, the Rights Agreement shall remain in full
force and effect and shall be otherwise unaffected hereby.
2
<PAGE> 3
10. This Amendment No. 1 may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed, as of the day and date first above written.
BIOWHITTAKER, INC.
By: /s/
------------------------------------
Noel L. Buterbaugh
President and Chief Executive
Officer
BANKBOSTON, N.A.
By: /s/
------------------------------------
Print Name:
Title:
3
<PAGE> 1
EXHIBIT 12
BIOWHITTAKER, INC.
8830 BIGGS FORD ROAD
WALKERSVILLE, MD 21793-0127
(301) 898-7025
August 28, 1997
To Our Stockholders:
The Board of Directors of BioWhittaker, Inc. (the "Company") is pleased to
inform you that, on August 22, 1997, the Company entered into an Agreement and
Plan of Merger (the "Merger Agreement") with Cambrex Corporation ("Parent") and
its wholly owned subsidiary, BW Acquisition Corporation (the "Purchaser").
Pursuant to the Merger Agreement, the Purchaser has commenced a cash tender
offer (the "Offer") to purchase all of the outstanding shares of the Company's
Common Stock, par value $0.01 per share, and the associated Preferred Stock
Purchase Rights (collectively, the "Shares"), at a price per Share of $11.625,
net to the seller in cash, subject to the terms and conditions in the Offer to
Purchase. The Offer currently is scheduled to expire at 12 o'clock midnight, New
York City time, on Thursday, September 25, 1997.
Following the successful completion of the Offer, and upon satisfaction of
certain conditions contained in the Merger Agreement, including approval by
stockholder vote, if required, the Purchaser will be merged into the Company
(the "Merger") and all Shares not purchased in the Offer (except any Shares as
to which the holder has properly exercised his or her dissenter's rights of
appraisal) will be converted into the right to received $11.625 per Share in
cash.
YOUR BOARD OF DIRECTORS HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT, THE
OFFER AND THE MERGER AND HAS DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR
TO, AND IN THE BEST INTERESTS OF, THE COMPANY'S STOCKHOLDERS. CONSEQUENTLY, THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY
ACCEPT THE OFFER AND TENDER THEIR SHARES.
The recommendation of the Board of Directors is described in more detail in
the Solicitation/Recommendation Statement on Schedule 14D-9 (the "14D-9
Statement") filed by the Company with the Securities and Exchange Commission, a
copy of which is enclosed with this letter. In arriving at its recommendation,
the Board of Directors gave careful consideration to a number of factors
described in the 14D-9 Statement, including the opinion of Alex. Brown & Sons
Incorporated, the Company's financial advisor, relating to the fairness, from a
financial point of view, of the consideration to be received by the Company's
stockholders in the Offer and the Merger. A copy of this fairness opinion is
attached as Annex B to the 14D-9 Statement. The 14D-9 Statement describes the
Board's deliberations and contains important information relating to the Board's
decision. Therefore, we urge you to read the 14D-9 Statement carefully in its
entirety.
In connection with the Merger Agreement and the Offer certain of the
Company's directors and executive officers, as well as Anasco GmbH, the
Company's largest stockholder, have agreed to tender all of the shares held by
them (representing approximately 31.1% of the outstanding Shares on a fully
diluted basis) pursuant to the Offer.
Also accompanying this letter is a copy of the Offer to Purchase and
related materials, including a Letter of Transmittal for use in tendering your
Shares. These documents set forth the terms and conditions of the Offer and
provide instructions as to how to tender your Shares.
<PAGE> 2
WE URGE YOU TO READ EACH OF THE ENCLOSED DOCUMENTS CAREFULLY AND CONSIDER
ALL OF THE INFORMATION SET FORTH THEREIN IN MAKING A DECISION WITH RESPECT TO
TENDERING YOUR SHARES PURSUANT TO THE OFFER AND IN EFFECTING YOUR TENDER, SHOULD
YOU ELECT TO DO SO.
The Company's Board of Directors and management thank you for the support
you have given the Company.
On behalf of the Board of Directors
JOSEPH F. ALIBRANDI
Chairman of the Board of Directors
2
<PAGE> 1
CAMBREX AND BIOWHITTAKER AGREE TO CAMBREX ACQUISITION OF BIOWHITTAKER
EAST RUTHERFORD, N.J. and WALKERSVILLE, Md., Aug.
25 /PRNewswire/ -- Cambrex Corporation (Amex: CBM), and BioWhittaker, Inc.
(NYSE: BWI) today announced a definitive merger agreement pursuant to which
Cambrex will acquire BioWhittaker for $11.625 per share. Under the merger
agreement, Cambrex will commence a cash tender offer for all of the outstanding
common stock of BioWhittaker. Any shares not tendered will be cashed out for
$11.625 per share in a statutory merger, giving the transaction a total value of
$130.9 million.
The Board of Directors of BioWhittaker unanimously approved the transaction
and certain directors and officers of BioWhittaker, together with Anasco GmbH,
the holder of 19.9% of BioWhittaker's shares, have agreed to tender their shares
to Cambrex. Alex. Brown & Sons Incorporated, BioWhittaker's financial advisor,
has delivered to the Board of Directors a written opinion to the effect that, as
of the date of such opinion and based upon and subject to certain matters stated
therein, the $11.625 per share cash consideration to be received in the tender
offer and the merger by holders of BioWhittaker common stock (other than Cambrex
and its affiliates) was fair, from a financial point of view, to such holders.
The tender offer will be conditioned upon, among other things, the tender
of at least 50% of the outstanding BioWhittaker Common Stock, on a fully diluted
basis, and the termination or expiration of the waiting period under the
Hart-Scott-Rodino Act. In the event of termination of the Merger Agreement,
under certain circumstances Cambrex would be entitled to a termination fee of
$4.125 million and the reimbursement of certain expenses.
BioWhittaker, Inc. develops, produces and sells cell culture products to
the biotechnology and pharmaceutical industries for research and for the rapidly
expanding commercial manufacture of biopharmaceutical products. More information
on BioWhittaker is included in the Q & A below.
"The purchase of BioWhittaker meets all of Cambrex's acquisition criteria,"
said Jim Mack, Cambrex CEO. "Beyond the transition cost, it will be
non-dilutive, and we expect that it will contribute substantially to Cambrex's
worldwide growth in the coming years. It will offer additional opportunities to
existing Cambrex subsidiaries for supplying products into the biopharmaceutical
area. Most important, it represents another strategic step for Cambrex in its
goal to offer pharmaceutical companies a more complete line of innovative
products and cGMP manufacturing capabilities."
Noel L. Buterbaugh, BioWhittaker CEO, commented, "My management team and I
look forward to joining Cambrex. We see synergy and compatibility in our two
companies and believe both companies will benefit by working together."
Mr. Mack will discuss the transaction further during a telephone conference
call at 1:00 p.m. today (EST). Those wishing to participate should call the MCI
Conference Coordinator at 1-800-369-1969, Password: Mack, approximately 10
minutes before 1:00 p.m.
This news release includes forward-looking statements that involve a number
of risks and uncertainties regarding the consummation of this transaction. These
include, among others, satisfaction of conditions to closing the transaction,
including determinations by regulatory authorities, and the risk factors set
forth from time to time in Cambrex's and BioWhittaker's filings with the United
States Securities and Exchange Commission, including their respective Reports on
Form 10-K for their most recently completed fiscal years and their respective
Reports on Form 10-Q for their most recent fiscal quarters for which such
reports were required to be filed. Any of these uncertainties may cause actual
results or future circumstances to differ materially from the forward-looking
statements contained in this news release.
<PAGE> 2
QUESTIONS AND ANSWERS
WHAT DOES BIOWHITTAKER DO?
BioWhittaker is a leading supplier of biological tools to the
biotechnology, pharmaceutical and life science research markets. Major products
include cell cultures, cell culture media and endotoxin detection products.
WHAT DO THEIR CUSTOMERS DO WITH THESE PRODUCTS?
Cell culture products including living cell cultures, chemically defined
nutrient media necessary for growing cell cultures, and sera used to supplement
the media. These products are used in biotechnology research and
biopharmaceutical applications including the production of drugs and vaccines,
cancer therapy, stem cell therapy, genetic therapy, and tissue repair and
transplantation. In addition, they are used by clinical laboratories for the
isolation and identification of viruses in patient specimens.
Endotoxin detection products include a range of tests that identify the
presence of endotoxin, a bacterial substance that can be fatal to humans.
Pharmaceutical and medical device manufacturers use these products as part of
the quality control process to ensure that injectable drugs and implantable
medical devices are safe for human use.
WHAT ARE BIOWHITTAKER'S REVENUES?
Sales revenues in 1996 were $51.5 million. Estimated sales for 1997 (fiscal
year-end October 31st) are approximately $57 million.
ARE REVENUES GROWING?
In December 1995 the Company sold part of its clinical diagnostics business
with sales of approximately $11 million. While total sales have increased 12%
for the first nine months of fiscal 1997, sales of the company's core cell
culture and endotoxin detection products have grown over 25% for the same
period. Sales are expected to continue to increase because of the anticipated
growth of the biotechnology industry in the coming years.
IS BIOWHITTAKER'S SUCCESS DEPENDENT ON A PARTICULAR CUSTOMER OR PRODUCT?
BioWhittaker has over 5,000 customers worldwide and over 1,500 products to
serve this diverse market. Its success is not dependent on a particular customer
or product. Over 30% of its sales are outside of the United States.
HAS BIOWHITTAKER BEEN PROFITABLE?
BioWhittaker has historically been profitable with Net Income currently
averaging over 10% of sales.
WHY IS CAMBREX INTERESTED IN THIS COMPANY?
There are several reasons Cambrex is interested in BioWhittaker:
- The number of approved therapeutic products made from biotechnology
has doubled in the last 2 to 3 years.
- BioWhittaker's core products have grown over 20% per year and they
have consistent record of profitability.
- Cambrex's strategy is to offer our pharmaceutical customer base a
full complement of products and cGMP manufacturing services.
Biotechnology is the fast growing sector of this industry and is an
essential component of that strategy.
- Biotechnology manufacturing is a logical extension of existing
Cambrex capabilities in supplying the pharmaceutical industry. This
purchase gives Cambrex access to valuable technology.
<PAGE> 3
CAN WE EXPECT CAMBREX TO PURCHASE OTHER BIOTECH COMPANIES?
Most biotech companies are involved in development of specific
biopharmaceutical products. This requires heavy investment in R&D over long
periods of time. Cambrex is not operating in these areas. BioWhittaker is
different in that it is a producer and supplier of critical, high technology
products to a wide array of biotech customers. Therefore, it has more consistent
growth and stable profitability.
The availability of contract biotechnology manufacturing services to the
pharmaceutical industry is limited and the company plans to develop that
capability within new cGMP facilities.
<PAGE> 1
EXHIBIT 14
<TABLE>
<S> <C>
To: Participants of the
BioWhittaker, Inc. Savings and Stock Investment Plan (the "Plan")
From: Plan Trustee
Re: Offer to Purchase BioWhittaker, Inc. Common Stock
</TABLE>
Enclosed for your consideration is a copy of an offer (the "Offer") by BW
Acquisition Corp.(the "Offeror"), which is a wholly-owned subsidiary of Cambrex
Corporation ("Cambrex"), to purchase all of the outstanding shares of Common
Stock, par value $0.01 per share (the "Shares" or "Company Stock") of
BioWhittaker, Inc. (the "Company"), at a purchase price of $11.625 per Share,
net to the seller in cash, without interest, upon the terms and subject to the
conditions set forth in the Offer. All holders of record of Company Stock have
received the Offer. The Offer is being made in connection with the Agreement and
Plan of Merger, dated as of August 22, 1997, among Cambrex, the Offeror, and the
Company.
THE TRUSTEE HAS ALSO RECEIVED THE OFFER ALONG WITH A LETTER OF TRANSMITTAL
IN ORDER TO STATE THE NUMBER OF SHARES CURRENTLY HELD UNDER THE PLAN WHICH WILL
BE TENDERED (I.E., SOLD) TO THE OFFEROR. AS A PARTICIPANT IN THE PLAN, YOU ARE
ENTITLED TO INSTRUCT THE TRUSTEE WHETHER OR NOT TO TENDER THE SHARES ALLOCATED
TO YOUR ACCOUNT UNDER THE PLAN. ABSENT INSTRUCTIONS, THE TRUSTEE SHALL TENDER OR
NOT TENDER SUCH SHARES AS IT DETERMINES IN ITS DISCRETION.
ACCORDINGLY, WE REQUEST INSTRUCTIONS AS TO WHETHER YOU WISH TO TENDER THE
SHARES ALLOCATED TO YOUR ACCOUNT, UPON THE TERMS AND CONDITIONS SET FORTH IN THE
OFFER.
Please note the following:
1. The tender price is $11.625 per share, net in cash.
2. The Offer and withdrawal rights will expire at 12:00 p.m.,
midnight, New York City time, on September 25, 1997, unless the Offer is
extended.
3. The Offer is conditioned upon, among other things, there being
validly tendered, prior to the expiration of the Offer and not withdrawn,
at least 50 percent of the Shares. The Offer is also subject to the other
terms and conditions in the Offer to Purchase.
INSTRUCTIONS TO THE TRUSTEE
Enclosed with this Notice is an instruction form which you must use to
instruct the Trustee whether or not to sell the shares of Company Stock
allocated to your account under the Plan. If you sign, date and return an
instruction form but do not check any box on the form, the Trustee will treat
your instruction form as not providing any instruction to the Trustee regarding
the shares of Company Stock allocated to your account under the Plan. In
accordance with the Plan, the Trustee will determine in its independent judgment
whether or not to sell any shares of Company Stock held by the Plan for which no
participant instructions are timely received.
YOUR ROLE AND RESPONSIBILITIES AS A PLAN PARTICIPANT
Only a trustee can vote and sell the Company Stock held by the Plan.
However, under the terms of the Plan, each participant may direct the Trustee
with respect to voting and selling shares of Company Stock allocated to the
account of such participant. If you choose to direct the Trustee whether or not
to sell any shares of Company Stock allocated to your account under the Plan,
you will be acting as a fiduciary with regard to your account for purposes of
this Offer to purchase Company Stock (but not for any future matter). In
general, fiduciaries are required to act prudently, solely in the interest of
plan participants and beneficiaries, and for the exclusive purpose of providing
benefits to the plan participants and beneficiaries. You should therefore
exercise your right whether or not to sell Company Stock prudently.
<PAGE> 2
CONFIDENTIALITY
Your instructions are to be returned to Bankers Trust Company of Des
Moines, Iowa ("Bankers Trust"), 665 Locust, P.O. Box 897, Des Moines, Iowa
50304, who is the Limited Trustee with respect to the acquisition, sale and
holding of Company Stock under the Plan. Bankers Trust will inform the Trustee
of the Plan as to the number of Shares for which no instructions were received.
However, Bankers Trust will not inform the Trustee as to whether or not any
particular participant furnished an instruction form or what the instructions
were from any particular participant.
DEADLINE FOR SUBMITTING OR REVOKING INSTRUCTIONS
IN ORDER TO BE ASSURED THAT YOUR INSTRUCTION TO THE TRUSTEE WILL BE
FOLLOWED, YOUR INSTRUCTION FORM MUST BE COMPLETED, SIGNED, DATED AND RECEIVED BY
BANKERS TRUST NO LATER THAN 12:00 P.M., MIDNIGHT, NEW YORK CITY TIME ON
SEPTEMBER 18, 1997. This time is five business days prior to the expiration of
the offer to allow the Trustee time to tabulate elections, decide whether or not
to tender Shares for which no instructions are received and transmit the
election to the Offeror. If the expiration of the Offer is extended beyond its
scheduled expiration time, the time by which the Trustee must receive your
instruction will be extended automatically to five business days prior to such
extended expiration time. REMEMBER TO RETURN YOUR INSTRUCTION FORM TO BANKERS
TRUST IN THE ENCLOSED ENVELOPE, RATHER THAN TO THE COMPANY, CAMBREX, OFFEROR OR
ANY OTHER PARTY.
Any instruction you furnish to the Trustee will be irrevocable if not
withdrawn by 12:00 p.m., midnight, New York City time on September 18, 1997.
This time is five business days prior to the expiration of the Offer. If the
expiration of the Offer is extended beyond its scheduled expiration time, the
time by which you may withdraw such instruction will be extended automatically
to five business days prior to such extended expiration time. To withdraw any
instruction, you should send a statement to Bankers Trust that you are
withdrawing your prior instruction and requesting another instruction form. You
must sign the statement and print your name and Social Security Number under
your signature.
QUESTIONS
If you have any questions about the instruction form, please contact Susan
Stiles at BioWhittaker, Inc. between the hours of 8:30 a.m. and 4:00 p.m. at
(301) 898-7025 extension 2357.
2
<PAGE> 3
BIOWHITTAKER, INC. SAVINGS AND STOCK INVESTMENT PLAN
INSTRUCTION TO TRUSTEE WHETHER OR NOT TO SELL SHARES
The undersigned participant in the BioWhittaker, Inc. Savings and Stock
Investment Plan (referred to in this form as the "Plan") hereby instructs the
Trustee under the Plan to sell or not to sell the shares of Common Stock, par
value $0.01 per share, of BioWhittaker, Inc. allocated to my account under the
Plan (as explained in the accompanying Notice to Participants) in accordance
with the instruction below.
THIS FORM MUST BE PROPERLY COMPLETED, SIGNED, DATED AND RECEIVED BY BANKERS
TRUST COMPANY OF DES MOINES, IOWA 665 LOCUST, P.O. BOX 897, DES MOINES, IOWA
50304 NO LATER THAN 12 P.M., MIDNIGHT, NEW YORK CITY TIME ON SEPTEMBER 18, 1997.
IF THIS FORM IS RECEIVED AFTER 12 P.M., MIDNIGHT, NEW YORK CITY TIME ON
SEPTEMBER 18, 1997, THE TRUSTEE CANNOT ENSURE THAT YOUR INSTRUCTIONS WILL BE
FOLLOWED.
[X] Please mark your choice like this and sign and date below.
NEITHER BANKERS TRUST NOR THE TRUSTEE MAKES ANY RECOMMENDATIONS AS TO YOUR
DECISION TO SELL OR NOT TO SELL SHARES OF COMPANY STOCK ALLOCATED TO YOUR
ACCOUNT UNDER THE PLAN.
[ ] Sell the shares of Company Stock allocated to my account under the Plan at
$11.625 per share.
[ ] Do not sell the shares of Company Stock allocated to my account under the
Plan.
As a participant in the Plan, I acknowledge receipt of the Notice to
Participants of the Plan regarding the Offer to Purchase BioWhittaker, Inc.
Common Stock, and I hereby instruct the Trustee of the Plan to sell or not to
sell the shares of Common Stock, of BioWhittaker, Inc. allocated to my account
under the Plan as indicated above.
I understand that if I sign, date and return this instruction form but do
not provide the Trustee with specific instructions, the Trustee will treat this
instruction form as not providing any instruction to the Trustee regarding the
shares of Company Stock allocated to my account under the Plan. In accordance
with the terms of the Plan, the Trustee will determine in its independent
judgment whether or not to sell any Shares of Company Stock held by the Plan for
which no participant instructions are timely received.
<TABLE>
<S> <C>
- --------------------------------------------- ------------------------------
Signature Date
- ---------------------------------------------
Social Security Number
- ---------------------------------------------
Printed Name
</TABLE>
PLEASE SIGN, PRINT YOUR NAME AND SOCIAL SECURITY NUMBER, DATE AND MAIL THIS
INSTRUCTION FORM PROMPTLY TO BANKERS TRUST COMPANY OF DES MOINES, IOWA IN THE
POSTAGE PREPAID ENVELOPE PROVIDED.
3
<PAGE> 1
March 20, 1997
Mr. Salvatore J. Guccione
Vice President Corporate Development
Mr. Peter Thaner
General Counsel
Cambrex Corporation
1 Meadowlands Plaza
East Rutherford, NJ 07030
Dear Sirs:
We, Alex. Brown & Sons Incorporated ("Alex. Brown"), the financial
adviser for BioWhittaker, Inc. (the "Company"), understand that Cambrex
Corporation may be interested in pursuing a transaction with the Company on a
mutually agreeable basis. In connection with your possible interest in a
transaction with the Company, we propose to furnish you with certain product,
financial, marketing, manufacturing, organizational, technical and other
information related to the Company (herein collectively referred to as the
"Confidential Information"). Confidential Information includes not only written
information but also information transferred orally, visually, electronically or
by any other means. All information disclosed other than in written form shall
be confirmed as Confidential Information in writing delivered to you within
sixty (60) days. In consideration of our furnishing you with the Confidential
Information, and as a condition to such disclosure, you agree as follows:
1. The Confidential Information will be used by you solely for the
purpose of your evaluation of the desirability of your entering into a
transaction with the Company, and for no other purpose. In no event shall you
use any of the Confidential Information in connection with any purchases of
securities of the Company in violation of applicable law, including in
particular section 10(b) of the Securities Exchange Act of 1934 and Rule 10(b)-5
thereunder, or permit anyone obtaining access to the Confidential Information
through you to do so.
2. You shall keep all Confidential Information secret and confidential
and shall not disclose it to anyone except to a limited group or your own
employees and directors who are actually engaged in the evaluation referred to
above. You may also disclose it to your outside professional advisors similarly
engaged. Each person to whom
<PAGE> 2
Cambrex Corporation
March 20, 1997
Page 2
such Confidential Information is disclosed must be advised of its confidential
nature and of the terms of this Agreement and must have generally agreed in
writing to keep Confidential Information obtained in the course of their
employment.
3. You shall keep the fact that any Confidential Information has been
delivered to you, that you are considering a transaction with the Company and
that discussions or negotiations have occurred or are occurring regarding a
possible transaction as Confidential Information for purposes of this Agreement.
4. Upon any termination of your evaluation of pursuing a transaction
with the Company or upon notice from the Company to you (i) you will either
destroy or return to the Company the Confidential Information which is in
tangible form, including any copies which you may have made, and you will
destroy all abstracts, summaries thereof or references thereto in your
documents, and certify to us that you have done so, and (ii) neither you nor
your directors, employees, agents, or representatives will use any of the
Confidential Information with respect to, or in furtherance of, your business,
any of their respective businesses, or in the business of anyone else, whether
or not in competition with the Company, or for any other purposes whatsoever
except that your counsel may retain in such counsel's legal files one copy of
any such materials for archive purposes.
5. Confidential Information does not include any information which you
can show was already in your possession or publicly available prior to your
receipt of such information or thereafter became publicly available. Information
shall be deemed "publicly available" if it becomes a matter of public knowledge
or is contained in materials available to the public or is obtained from any
source other than the Company (or its directors, officers, employees or outside
advisors, including, without limitation, Alex. Brown), provided that such source
has not to your knowledge entered into a confidentiality agreement with the
Company with respect to such information or obtained the information from an
entity or person party to a confidentiality agreement with the Company.
6. You understand that we have endeavored to include in the
Confidential Information those materials which we believe to be reliable and
relevant for the purpose of your evaluation, but you acknowledge that neither
the Company nor Alex. Brown nor any of their respective agents, representatives,
or employees makes any representation or warranty as to the accuracy or
completeness of the Confidential Information and you agree that such persons
shall have no liability to you or any of your representatives resulting from any
use of the Confidential Information. You understand that the Confidential
Information is not being furnished for use in an offer or sale of securities of
<PAGE> 3
Cambrex Corporation
March 20, 1997
Page 3
the Company and is not designed to satisfy the requirements of federal or state
securities laws in connection with any offer or sale of such securities to you.
7. In the event that you or anyone to whom you transmit the
Confidential Information pursuant to this Agreement becomes legally compelled to
disclose any of the Confidential Information, you will provide the Company with
prompt notice so that the Company may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this
Agreement. In the event that the Company is unable to obtain such protective
order or other appropriate remedy, you will furnish only that portion of the
Confidential Information which you are advised by a written opinion of counsel
is legally required and you will exercise your best efforts to obtain a
protective order or other reliable assurance that confidential treatment will be
accorded the Confidential Information so disclosed.
8. Without the prior written consent of the Company, you will not, for
a period of two (2) years (i) acquire, offer to acquire, or agree to acquire,
directly or indirectly, by purchase or otherwise, any voting securities or
direct or indirect rights or options to acquire any voting securities of the
Company, (ii) make, or in any way participate, directly or indirectly, in any
"solicitation" of any "proxy" to vote (as such terms are used in the proxy rules
of the Securities and Exchange Commission) or seek to advise or influence any
person or entity with respect to the voting of any voting securities of the
Company, (iii) form, join or in any way participate, directly or indirectly, in
a "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended with respect to any voting securities of the Company, or
(iv) otherwise act, alone or in concert with others, directly or indirectly, to
seek control or influence or assist others to seek control or influence the
management, board of directors, or policies of the Company.
9. Without the Company's prior written approval, the Interested party
agrees not to contact any employee of the Company concerning the Interested
Party's potential interest in a transaction. All inquiries will be directed
through Alex. Brown.
10. Without the prior written consent of the Company, you will not, for
a period of 18 months, solicit for hire as an employee, agent or consultant any
present officer or management level employee of the Company. As used herein, a
management level employee of the Company is any individual who reports directly
to an officer of the Company and the following additional managers (Director of
Normal Human Cells; Director of Research and Development/Clonetics; National
Sales Manager, Normal Human Cells; Marketing and Research Product
Manager/Clonetics; and Manager of International Sales/Clonetics).
<PAGE> 4
Cambrex Corporation
March 20, 1997
Page 4
11. You understand and agree that money damages would not be a
sufficient remedy for any breach of this Agreement by you, or your employees,
directors or representatives, and that the Company, its agents and
representatives shall be entitled to specific performance and/or injunctive
relief as a remedy for any such breach. Such remedy shall not be deemed to be
the exclusive remedy for any such breach of this Agreement but shall be in
addition to all other remedies available at law or in equity. You further agree
that no failure or delay by the Company, its agents, or representatives in
exercising any right, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall nay single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any right, power or
privilege under this Agreement. You further agree that the Company shall not be
required to provide security or post any bond in connection with any such remedy
and that the Company shall be entitled to seek to recover its costs in enforcing
its rights hereunder, including reasonable attorney's fees.
12. Nothing in this Agreement shall impose any obligation upon you or
us to consummate a transaction or to enter into any discussion or negotiations
with respect thereto.
13. This Agreement shall be governed by the laws of the State of
Maryland.
14. This Agreement shall terminate three (3) years from the date of
this Agreement, except for the obligations to keep information confidential,
which shall continue as long as such information otherwise remains confidential.
If you are in agreement with the foregoing, please sign and return the
enclosed copy of this letter which will constitute our agreement with respect to
the subject matter of this letter as of the date first above written.
Very truly yours,
Alex, Brown & Sons Incorporated
----------------------------------
Christopher C. Camut
Vice President
AGREED AND ACCEPTED:
<PAGE> 5
Cambrex Corporation
March 20, 1997
Page 5
Cambrex Corporation
By:
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Its:
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