<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ___)*
Selfcare, Inc.
(Name of Issuer)
Common Stock, $.001 par value per share
(Title of Class of Securities)
00081631R1
(CUSIP Number)
Ronan O'Caoimh
Trinity Biotech plc
3 Rock Road
Sandyford Industrial Estate
Dublin 18, Ireland
(011) 353 1 2955111
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 28, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which in the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. [ ]
Check the following box if a fee is being paid with the statement [x].
.
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class Of securities described in item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7).
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided In a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following page(s))
Page 1 of 12 Pages
<PAGE> 2
CUSIP NO. 00081631R1 13D Page 2 of 12 Pages
----------
- ------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Flambelle Limited
- ------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP
(a) [x]
(b) [ ]
- ------------------------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF, 00
- ------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Ireland
- ------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF
0 shares
SHARES _________________________________
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY
778,622 shares
EACH ________________________________
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON
0 shares
WITH ________________________________
10. SHARED DISPOSITIVE POWER
778,622 shares
- ------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
778,622 shares
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.8%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
- -------------------------------------------------------------------------------
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<PAGE> 3
CUSIP NO. 00081631 R1 13D Page 3 of 12 Pages
-----------
- ------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Trinity Biotech plc
- ------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP
(a) [x]
(b) [ ]
- ------------------------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC, 00
- ------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Ireland
- ------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF
21,000 shares
SHARES ________________________________________
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY
778,622 shares
EACH ________________________________________
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON
21,000 shares
WITH ________________________________________
10. SHARED DISPOSITIVE POWER
778,622 shares
- ------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
799,622 shares
- ------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- ------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.1%
- ------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
- ------------------------------------------------------------------------------
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<PAGE> 4
Item 1. Security and Issuer Page 4 of 12 Pages
This statement relates to the shares ("Shares") of Common Stock, par
value $0.001 per share (the "Common Stock"), of Selfcare, Inc., a Delaware
corporation (the "Company"). The principal executive offices of the Company are
located at 200 Prospect Street, Waltham, Massachusetts, 02154.
Item 2. Identity and Background
This statement is being filed on behalf of Trinity Biotech plc
("Trinity") and its wholly-owned subsidiary, Flambelle Limited ("Flambelle").
Certain of the Shares of Common Stock of the Company beneficially owned
by Flambelle and Trinity and reported herein are owned directly by Eastcourt
Limited, a company incorporated in England and Wales ("Eastcourt"). Eastcourt is
50% owned by Flambelle and 50% by Enviromed plc ("Enviromed"). Eastcourt has
advised Trinity and Flambelle that it will be filing a separate Schedule 13D
(the "Eastcourt 13D") on or about the date hereof which may be consulted for
further information regarding Eastcourt and Enviromed.
(A) Trinity Biotech plc
Trinity is incorporated in the Republic of Ireland. Its principal
business is to acquire, develop and market diagnostic tests for
the detection of infectious diseases and medical conditions. The
address of Trinity's principal office and business is:
Three Rock Road
Sandyford
Industrial Estate
Dublin 18
Republic of Ireland.
Trinity has not during the last five years been convicted in a
criminal proceeding (excluding traffic violations or similar
misdemeanors) or been a party to any civil proceeding resulting
in its being subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or
finding any violations with respect to such laws.
Attached as Schedule A and incorporated by reference herein is a
table setting forth the name, business address, present principal
occupation and employer, and citizenship of each
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<PAGE> 5
Page 5 of 12 Pages
person who is a director or executive officer of Trinity. None of
the persons listed on Schedule A has during the last five years
been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or been a party to any civil
proceeding resulting in its being subject to a judgment, decree
or final order enjoining future violations of, or prohibiting or
mandating activities subject to, U.S. federal or state (or any
foreign) securities laws or finding any violations with respect
to such laws.
(2) Flambelle Limited
Flambelle is incorporated in Ireland. Its principal business is
to hold the shares of Eastcourt and to hold shares of the Company
in trust for two beneficiaries, Trinity, and East Ridge
Foundation, a Liechtenstein trust foundation ("East Ridge").
Neither Trinity, any subsidiaries of Trinity, nor any officers
or directors of Trinity or its subsidiaries are officers,
directors or stockholders of, or otherwise affiliated with,
East Ridge. The address of Flambelle's principal office and
business is:
15/16 Fitzwilliam Place
Dublin 2
Republic of Ireland
Flambelle has not during the last five years been convicted in a
criminal proceeding (excluding traffic violations or similar
misdemeanors) or been a party to any civil proceeding resulting
in its being subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or
finding any violations with respect to such laws.
Attached as Schedule B and incorporated by reference herein is a
table setting forth the name, business address, present principal
occupation and employer, and citizenship of each person who is a
director or executive officer of Flambelle. None of the persons
listed on Schedule B has during the last five years been
convicted n criminal proceeding (excluding traffic violations or
similar misdemeanors) or been a party to any civil proceeding
resulting in its being subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating
activities subject to, U.S. federal or state (or any foreign)
securities laws or finding any violations with respect to such
laws.
-5-
<PAGE> 6
Page 6 of 12 Pages
Item 3. Source and Amount of Funds or Other Consideration
Flambelle purchased 389,311 of the Shares reported herein (the
"Flambelle Selfcare Shares") on August 28, 1996 directly from Enviromed in a
private transaction for an aggregate purchase price of (pound sterling)500,000.
The source of the funds was as follows: (i) (pound sterling)426,069 provided by
TBI which amount was loaned to TBI from Trinity out of its working capital; (ii)
(pound sterling)73,931 provided by East Ridge.
Eastcourt purchased 389,311 Shares reported herein (the
"Eastcourt Selfcare Shares") on August 28, 1996 from Enviromed in a private
transaction for an aggregate purchase price of (pound sterling)500,000.
Eastcourt secured an interest free loan of (pound sterling)500,000 from
Flambelle to fund the purchase. The loan is due and payable upon the earlier of
(a) the termination of the "Agreement" or (b) the exercise of the "Enviromed
Call Option" (as such terms are defined below). The source of the funds received
by Flambelle was as follows: (i) (pound sterling)426,069 provided by Trinity
from its working capital and (pound sterling) 73,931 provided by East Ridge.
On August 6, 1996, Trinity purchased 21,000 shares of the Company
on the open market for an aggregate price of $178,500 which funds were from the
working capital of Trinity.
Item 4. Purpose of Transaction
Trinity and Flambelle have acquired their interest in the
Flambelle Selfcare Shares and the Eastcourt Selfcare Shares for investment
purposes for the benefit of Trinity and Cambridge. Flambelle and Trinity may
dispose of some or all of Flambelle Selfcare Shares, and subject to their
arrangements with Eastcourt and Enviromed, the Eastcourt Selfcare Shares, at
such time as they see fit, depending on, among other things, the status of a
dispute with the Company regarding the ownership of such Shares, the ability of
Flambelle to sell its Shares under Rule 144 or pursuant to other exemptions,
under the Securities Act of 1933, price and general market conditions.
Except as set forth above, neither Trinity nor Flambelle (nor, to
the knowledge of Trinity and Flambelle, any of the persons listed on Schedules A
or B) has any plans or proposals to take any action which relates to or may
result in any of the items referred to in paragraphs (a) through (j) of Item 4
of Schedule 13D.
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<PAGE> 7
Page 7 of 12 Pages
Item 5. Interest in Securities of the issuer
As of the date hereof, Flambelle beneficially owns 778,622
Shares, representing approximately 11.8% of the outstanding Shares of the
Company. Pursuant to the arrangements described in Item 6, Flambelle may be
deemed to share the power to vote and dispose of the 389,311 Eastcourt Selfcare
Shares with Enviromed, Eastcourt and Trinity. In addition, based on an
arrangement between Flambelle and Trinity that voting and investment decisions
regarding the Flambelle Selfcare Shares will be made by Flambelle at the
direction of the Board of Directors of Trinity, Flambelle may be deemed to share
the power to vote and dispose of the 389,311 Flambelle Selfcare Shares with
Trinity.
As of the date hereof, Trinity may be deemed to beneficially own
799,622 Shares of the Company, representing approximately 12.1% of the Shares of
the Company. Pursuant to its arrangements with Flambelle, Trinity may be deemed
to share the power to vote and dispose of the 389,311 Flambelle Selfcare Shares
with Flambelle, and pursuant to the arrangements described in Item 6, may be
deemed to share the power to vote and dispose of the 389,311 Eastcourt Selfcare
Shares with Flambelle, Eastcourt and Enviromed.
Except as described in this Item 5 and in Items 3 and 6, Trinity
and Flambelle have not engaged in any transactions in the Shares in the last 60
days.
To Trinity and Flambelle's knowledge, none of the persons listed
on Schedules A and B beneficially own any Shares or have engaged in any
transactions in the Shares in the last 60 days, except for Mr. Ronan O'Caoimh,
who beneficially owns 4,000 Shares, which he acquired on or about August 6, 1996
at a price of $8.50 per Share and Mr. James Walsh, who beneficially owns 71,185
Shares, which were acquired as follows: (i) 27,300 Shares purchased on December
19, 1995 at a price of $2.52 per Share; (ii) 5,800 Shares purchased on August 6,
1996 at a price of $8.50 per Share; and (iii) 38,085 shares received upon August
6, 1996 upon exercise of warrants issued in connection with a loan of $100,000
by Mr. Walsh to the Issuer.
Until such time as one of the Options (as defined below) is
exercised, Trinity and/or Flambelle will share with Eastcourt and Enviromed the
right to receive or the power to direct the receipt of dividends or the proceeds
of the sale of the Eastcourt Selfcare Shares.
All statements contained herein regarding percentages of the
outstanding Shares are based on the amount of Shares outstanding
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<PAGE> 8
Page 8 of 12 Pages
shown in the Company's recent Registration Statement on Form SB-2 (SEC
Registration No. 333-4830 NY, declared effective on August 5, 1996). For
purposes hereof, it has been assumed that the underwriters over-allotment option
described therein was not exercised.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer
On August 28, 1996, Enviromed, Eastcourt, Trinity and Flambelle
entered into an Agreement Relating to Shares in Selfcare, Inc. (the
"Agreement"), pursuant to which Enviromed sold (a) the Eastcourt Selfcare Shares
to Eastcourt and (b) the Flambelle Selfcare Shares to Flambelle.
Pursuant to Section 4.1 of the Agreement, each of Enviromed and
Flambelle has the right to appoint one person to Eastcourt's two-person board of
directors. As a result, the consent of both of Enviromed and Flambelle it
required before Eastcourt can dispose of any of the Eastcourt Selfcare Shares.
Pursuant to Clause 4.2 of the Agreement, Trinity and Flambelle
have the power to direct the voting of the Eastcourt Selfcare Shares; provided,
however, that Enviromed shall be able to direct the voting of the Eastcourt
Selfcare Shares in relation to resolutions of the shareholders of the Company
which relate to or may affect the "Enviromed Share Rights" (defined in Clause
1.1 of the Agreement to include Enviromed's rights of ownership in the Shares
sold pursuant to the Agreement, and all related rights) or Enviromed (other than
by reason of its interest in the Shares sold pursuant to the Agreement).
Pursuant to the Agreement, Flambelle and Enviromed granted each
other certain options (the "Options") with respect to their shares in Eastcourt,
as follows:
- Pursuant to Clause 5.1, Flambelle granted
Enviromed a call option (the "Enviromed Call Option") to purchase
Flambelle's 50% of the outstanding shares of Eastcourt. The
exercise price for the Enviromed Call Option is (pound sterling)
50, provided that, within 60 days of the purchase, Enviromed must
also procure that Eastcourt repays the Trinity Loan.
- Pursuant to Clause 6.1, Flambelle granted
Enviromed a put option (the "Enviromed Put Option") entitling
Enviromed to require Flambelle to purchase Enviromed's 50% of the
outstanding shares of Eastcourt for a purchase price of
(pound)50.
-8-
<PAGE> 9
Page 9 of 12 Pages
- Pursuant to Clause 6.5, Enviromed granted
Flambelle a call option (the "Flambelle Call Option") to purchase
Enviromed's 50% of the outstanding shares of Eastcourt. The
Flambelle Call Option does not become exercisable unless and
until both the Enviromed Call Option and the Enviromed Put Option
have expired unexercised. The exercise price for the Flambelle
Call Option is (pound sterling)50.
- Pursuant to Clause 7.3 (among others) of the
Agreement, the parties agreed to cooperate in connection with
certain existing and potential litigation with the Company
regarding the Enviromed Share Rights.
- Pursuant to Clause 7.9 of the Agreement,
Enviromed may direct the voting of the Flambelle Selfcare Shares
under the circumstances in which it is entitled to direct the
voting of the Eastcourt Selfcare Shares.
Flambelle holds the Flambelle Selfcare Shares and its interest in
Eastcourt in trust for the benefit of Trinity and East Ridge. All income, gain
or loss derived from the Flambelle Selfcare Shares or Flambelle's interest in
Eastcourt is to be shared by Trinity and Eastridge.
Item 7. Material to Be Filed as Exhibits
(1) The Agreement
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Page 10 of 12 Pages
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this statement
is true, complete and correct.
September 6, 1996
TRINITY BIOTECH PLC
BY: /s/ Ronan O'Caoimh
------------------------------
Name: Ronan O'Caoimh
Title: Chief Executive Officer
FLAMBELLE LIMITED
BY: /s/ Ronan O'Caoimh
------------------------------
Name: Ronan O'Caoimh
Title: President
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<PAGE> 11
Page 11 of 12 Pages
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS OF
TRINITY BIOTECH PLC
Principal Occupation
Name and Address
Name and Title Citizenship of Employer
Ronan O'Caoimh Irish Chief Executive Officer
Chairman and Chief Trinity Biotech plc
Executive Officer Three Rock Road
Sandyford Industrial Estate
Dublin 18, Ireland
Denis Burger USA Partner
Non-executive Director Sovereign Ventures
1 Southwest Columbia
Portland, Oregon 97258
Brendan Farrell Irish President
President and Director Trinity Biotech plc
Three Rock Road
Sandyford Industrial Estate
Dublin 18, Ireland
Jonathan O'Connell Irish Chief Financial Officer
Chief Financial Officer Trinity Biotech plc
and Director Three Rock Road
Sandyford Industrial Estate
Dublin 18, Ireland
James Walsh Irish Chief Operating Officer
Chief Operating Officer Trinity Biotech plc
and Director Three Rock Road
Sandyford Industrial Estate
Dublin 18, Ireland
<PAGE> 12
Page 12 of 12 Pages
SCHEDULE B
DIRECTORS AND EXECUTIVE OFFICERS OF
FLAMBELLE LIMITED
Principal Occupation
and Name and Address Business Address
Name and Title Citizenship of Employer (if Different)
- -------------- ----------- -------------------- ----------------
Ronan O'Caoimh, Irish Director, same
President and Trinity Biotech plc
Director Three Rock Road
Sandyford Industrial
Estate
Dublin 16
Republic of Ireland
<PAGE> 13
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
99.1 AGREEMENT RELATING TO SHARES IN
SELFCARE, INC.
<PAGE> 1
DATED August 28, 1996
(1) ENVIROMED PLC
(2) TRINITY BIOTECH PLC
(3) FLAMBELLE LIMITED
(4) EASTCOURT LIMITED
Agreement relating to
shares in Selfcare Inc
Reynolds Porter Chamberlain
Chichester House
278/282 High Holborn
London WC1V 7HA
Ref: AKT/ENV.1-2/jlm
<PAGE> 2
THIS AGREEMENT is made on August 28, 1996
BETWEEN:
(1) ENVIROMED PLC a company incorporated in England and Wales (Registered
No. 2815159) and having its registered office at Mercury House, 195
Knightsbridge, London SW7 1YE ("ENVIROMED");
(2) TRINITY BIOTECH PLC a company incorporated in the Republic of Ireland
(Registered No. 183476) and having its registered office at Three Rock
Road, Sandyford Industrial Estate, Dublin 18 ("TRINITY");
(3) FLAMBELLE LIMITED a company incorporated in the Republic of Ireland
(Registered No. 245333) and having its registered office at 15/16
Fitzwilliam Place, Dublin 2 ("FLAMBELLE"); and
(4) EASTCOURT LIMITED a company incorporated in England and Wales
(Registered No. 3234996) and having its registered office at Chichester
House, 278/282 High Holborn, London WC1V 7HA ("EASTCOURT").
WHEREAS:
(A) Selfcare, Inc. is a company incorporated under the laws of the State of
Delaware USA ("SELFCARE") having shares of common stock of US$ 0.001
per value each ("SELFCARE SHARES").
(B) Enviromed is the registered holder of 59,894 Selfcare Shares ("SELFCARE
SALE SHARES").
(C) On 13 June 1996 the Board of Selfcare declared a 13 for 1 stock split
effected or to be effected as a 12 for 1 stock dividend for all common
stockholders of record as at 20 June 1996, in consequence whereof
Enviromed has, will or should become the registered holder of a total
of 778,622 Selfcare Shares. In this Agreement references to the
1
<PAGE> 3
Selfcare Sale Shares are to the number of shares held by Enviromed
prior to such stock split but, subject to such stock split being
effected, shall be deemed to include any additional shares issued to
Enviromed or to which Enviromed shall be entitled in consequence of
such stock split.
(D) Flambelle is wholly owned by Trinity and Eastcourt is owned in equal
proportions by Enviromed and Flambelle.
(E) Enviromed is willing to sell and Flambelle and Eastcourt are willing to
purchase the Selfcare Sale Shares on the terms set out in this
Agreement.
THE PARTIES AGREE as follows:
1. INTERPRETATION
1.1 In this Agreement:
"COMPLETION" means completion of the sale and purchase of the Selfcare
Sale Shares in accordance with clause 3;
"EASTCOURT A SHARES" means the 50 A ordinary shares of (pound
sterling)1 each in the capital of Eastcourt registered in the name of
Enviromed;
"EASTCOURT B SHARES" means the 50 B ordinary shares of (pound sterling)
1 each in the capital of Eastcourt registered in the name of Flambelle;
"EASTCOURT SELFCARE SHARES" means the Selfcare Sale Shares to be
acquired by Eastcourt pursuant to clause 2.2 and any other shares or
assets deriving from or by which such shares may from time to time be
represented;
"ENVIROMED CALL OPTION" means the option for Enviromed to require
Flambelle to sell its Eastcourt B Shares to Enviromed provided for in
clause 5;
2
<PAGE> 4
"ENVIROMED PUT OPTION" means the option for Enviromed to require
Flambelle to purchase Enviromed's Eastcourt A Shares provided for in
clause 6;
"ENVIROMED SHARE RIGHTS" means Enviromed's rights of ownership of the
Selfcare Sale Shares and all rights that Enviromed may have to be
registered as the legal and beneficial owner of the Selfcare Sale
Shares, to transfer the Selfcare Sale Shares and to exercise all
benefits of such ownership whether arising by operation of law (in any
jurisdiction) or arising under any agreement, series of agreements,
arrangements or understandings between Enviromed and Selfcare;
"FIRST SUBSCRIPTION SHARES" means the 45,656 Selfcare Sale Shares
represented by Certificate No. 122 dated 22 March 1994 and any further
certificates issued to Enviromed in respect thereof pursuant to the
stock split referred to in Recital (C);
"FLAMBELLE SELFCARE SHARES" means the Selfcare Sale Shares to be
acquired by Flambelle pursuant to clause 2.1;
"REGISTRATION RIGHTS" means any right of the holder of the Selfcare
Sale Shares to demand or otherwise participate in a registration under
the Securities Act made in respect of Selfcare Shares whether pursuant
to the Registration Rights Agreement or otherwise;
"REGISTRATION RIGHTS AGREEMENT" means the agreement made as of 8 March
1994 between Selfcare, USB '93 Technology Associates Limited
Partnership and the Company;
"RELEVANT PROCEEDINGS" shall mean any legal proceedings, arbitration
proceedings and alternative dispute resolution proceedings (including
in each case any appeals therefrom, judicial reviews thereof and
substituted proceedings) instituted by Enviromed, Trinity, Flambelle,
Eastcourt or Selfcare concerning the existence of the Enviromed Share
Rights or the entitlement of Enviromed to exercise or transfer the
Enviromed Share Rights;
3
<PAGE> 5
"REPRESENTATION LETTERS" the letters in the agreed form containing
certain representations and obligations relating to compliance with the
Securities Act and certain state securities laws, to be delivered to
Enviromed by Flambelle and Eastcourt at Completion;
"SECOND SUBSCRIPTION SHARES" means the 14,238 Selfcare Sale Shares
represented by Certificate No. 170 dated 22 December 1994 and any
further certificates issued to Enviromed in respect thereof pursuant to
the stock split referred to in Recital (C);
"SECURITIES ACT" the United States Securities Act of 1933, as amended;
and
"TRINITY LOAN" means the sum of (pound sterling)500,000 to be lent
by Trinity or Flambelle to Eastcourt at Completion interest free and
repayable as provided in clause 4.4.
1.2 In this Agreement, a reference to:
1.2.1 a document in the "AGREED FORM" is a reference to a document
in a form approved and for the purposes of identification
signed by or on behalf of each party to this Agreement; and
1.2.2 a clause, paragraph or schedule, unless the context otherwise
requires, is a reference to a clause or paragraph of or a
schedule to this Agreement.
2. SALE AND PURCHASE
2.1 Enviromed agrees to sell and Flambelle agrees to purchase 22,828 First
Subscription Shares and 7,119 Second Subscription Shares for a total
consideration of (pound sterling)500,000.
2.2 Enviromed agrees to sell and Eastcourt agrees to purchase 22,828 First
Subscription Shares and 7,119 Second Subscription Shares for a total
consideration of (pound sterling)500,000.
4
<PAGE> 6
3. COMPLETION
3.1 Completion shall take place immediately following signature of this
Agreement when:
3.1.1 Trinity or Flambelle shall pay the Trinity Loan to Eastcourt
by way of wire transfer;
3.1.2 Flambelle and Eastcourt shall make a wire transfer of the
consideration payable by them respectively under clauses 2.1
and 2.2 and Enviromed shall deliver to Flambelle and Eastcourt
duly executed assignments in the agreed form in respect of the
shares referred to in clauses 2.1 and 2.2 and the Registration
Rights; and
3.1.3 Flambelle and Eastcourt shall each deliver to Enviromed a duly
executed Representation Letter.
3.2 Completion shall only have taken place when the provisions of clause
3.1 have been fully complied with.
3.3 The parties shall agree the appropriate steps with regard to the
presentation and registration of the assignments referred to in clause
3.1.2 and until such assignments are presented to Selfcare or its
transfer agent the share certificates in respect of the Selfcare Sale
Shares will be held by Reynolds Porter Chamberlain (solicitors) on
behalf of Flambelle and Eastcourt and only to be released on written
instructions of Enviromed and Trinity.
4. EASTCOURT
4.1 Enviromed and Flambelle shall each ensure that at all times during the
continuance of this Agreement their respective rights to appoint a
director to the board of Eastcourt under its Articles of Association
have been duly exercised and that such director is at all times validly
holding office.
5
<PAGE> 7
4.2 Enviromed and Flambelle undertake to procure that the directors they
are respectively entitled to appoint to the board of Eastcourt shall
resolve to exercise the voting rights attaching to the Eastcourt
Selfcare Shares in the following manner:
4.2.1 except in the circumstances set out in clause 4.2.2, on the
directions of Trinity or Flambelle; and
4.2.2 in relation to resolutions of Selfcare the subject matter of
which relates to or may affect Enviromed Share Rights or
otherwise affects Enviromed (except by reason of its interest
in the Selfcare Sale Shares), on the directions of Enviromed.
4.3 Enviromed, Trinity and Flambelle shall procure that at all times during
the continuance of this Agreement the sole and continuing asset of
Eastcourt shall be the Eastcourt Selfcare Shares and that its sole
liability during such period shall be the Trinity Loan, save for assets
or liabilities arising by operation of law and Eastcourt's share
capital.
4.4 Trinity and Flambelle agrees with Enviromed and Eastcourt that the
Trinity Loan shall not be repayable during the continuance of this
Agreement except in accordance with clause 5.5.
5. THE ENVIROMED CALL OPTION AND THE TRINITY LOAN
5.1 In consideration of the mutual agreements and undertakings set out in
this Agreement Flambelle hereby grants to Enviromed an option to
require Flambelle to sell its entire holding of Eastcourt B Shares to
Enviromed at the price and on the terms set out in this clause.
5.2 The Enviromed Call Option shall be exercisable by notice in writing
given by Enviromed at any time during:
5.2.1 the period of three years from the date of this Agreement; or
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5.2.2 the continuation of any Relevant Proceedings commenced prior
to the expiry of the said period of three years; or
5.2.3 within 60 days after the termination of such Relevant
Proceedings.
5.3 The exercise price shall be par value in respect of each of the
Eastcourt B Shares.
5.4 Completion of the sale and purchase of the Eastcourt B Shares pursuant
to the exercise of the Enviromed Call Option shall take place within 7
business days following the date of service of notice when Enviromed
shall pay the consideration and Flambelle shall deliver the share
certificate and a duly executed stock transfer form in respect of such
shares.
5.5 Within 60 days after completion of such sale Enviromed shall procure
the repayment by Eastcourt to Trinity or Flambelle of the Trinity Loan
by way of wire transfer and if during such period Eastcourt shall
effect the sale of the Eastcourt Selfcare Shares Enviromed shall
procure that the proceeds of sale should be charged in favour of
Trinity or Flambelle by way of security for the repayment of the
Trinity Loan.
6. THE ENVIROMED PUT OPTION
6.1 In consideration of the mutual agreements and undertakings set out in
this Agreement Flambelle hereby grants to Enviromed an option to
require Flambelle to purchase Enviromed's entire holding of Eastcourt A
Shares at the price and on the terms set out in this clause.
6.2 The Enviromed Put Option shall be exercisable by notice in writing
given by Enviromed at any time during:
6.2.1 the period of three years from the date of this Agreement; or
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6.2.2 the continuation of any Relevant Proceedings commenced prior
to the expiry of the said period of five years; or
6.2.3 within 60 days after the termination of such Relevant
proceedings.
6.3 The exercise price shall be par value in respect of each of the
Eastcourt A Shares.
6.4 Completion of the sale and purchase of the Eastcourt A Shares pursuant
to the exercise of the Enviromed Put Option shall take place within
seven business days following the date of service of notice when
Flambelle shall pay the consideration and Enviromed shall deliver the
share certificate and a duly executed stock transfer form in respect of
such shares.
6.5 If Enviromed shall not exercise the Enviromed Call Option or the
Enviromed Put Option then Flambelle shall be entitled during the period
of 90 days following the expiry of the last of the periods specified in
clause 6.2 by notice in writing to Enviromed to require Enviromed to
sell the Eastcourt A Shares to Flambelle and the provisions of clauses
6.3 and 6.4 shall apply mutatis mutandis.
7. THE ENVIROMED SHARE RIGHTS AND DISCLAIMER
7.1 Trinity, Flambelle and Eastcourt acknowledge that they have undertaken
their own investigations into Selfcare, the Selfcare Sale Shares and
the Enviromed Share Rights and that they have not relied on any
representation of or warranty by Enviromed as to Selfcare, the Selfcare
Sale Shares and the Enviromed Share Rights in entering into this
Agreement.
7.2 Trinity, Flambelle and Eastcourt acknowledge that they have each
received and reviewed (including with their professional advisers) and
understand the disclosure letter from Enviromed dated of even date with
this Agreement.
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7.3 Enviromed, Trinity and Flambelle agree that they shall institute or
defend or be joined as a party and/or cause Eastcourt to institute or
defend or be joined as a party to any Relevant Proceedings which shall
be necessary or desirable for the purpose of establishing or enforcing
the Enviromed Share Rights, subject to clause 7.6.
7.4 The parties agree that the legal proceedings instituted by Enviromed
against Selfcare, Lehman Brothers, Inc., Dillon, Read & Co. Inc. and
Adams, Harkness & Hill, Inc. in the United States District Court,
Southern District of New York (reference 96 C iv.5097(DAB)) are
Relevant Proceedings and Trinity and Flambelle confirm their approval
thereof.
7.5 In respect of any Relevant Proceedings the following provisions shall
apply:
7.5.1 Enviromed shall be responsible for the conduct of such
proceedings and shall keep Trinity informed of the progress
thereof;
7.5.2 Enviromed, Trinity and Flambelle shall co-operate with each
other in respect of such proceedings and shall use all
reasonable endeavours to resist or pursue such proceedings;
7.5.3 Enviromed and Trinity shall bear equally the out of pocket
costs and expenses of such proceedings including legal fees
and attorney suits; and
7.5.4 Enviromed shall make no settlement or compromise of such
proceedings without the prior approval of Trinity, such
approval not to be unreasonably withheld.
7.6 If any dispute shall arise between Enviromed, Trinity and Flambelle as
to whether to institute or defend or be joined as a party and/or cause
Eastcourt to institute or defend or be joined as a party to Relevant
Proceedings or the conduct, settlement or compromise of Relevant
Proceedings, the dispute shall be referred to a senior lawyer of at
least ten years' qualification appointed by agreement between the
parties or in
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default of agreement by the President for the time being of the Law
Society in London whose determination shall be final.
7.7 Trinity, Flambelle and Eastcourt acknowledge that they shall have no
right to rescind this Agreement or to recover the whole or any part of
the consideration paid by any of them to Enviromed respectively under
clauses 2.1 and 2.2 in the event of any Relevant Proceedings being
unsuccessfully pursued or resisted as the case may be, but if Selfcare
shall be obliged to repay the whole or part of the subscription money
in respect of the Selfcare Sale Shares it is agreed that such repayment
shall be shared equally between Enviromed and Flambelle.
7.8 Trinity and Flambelle covenant with and undertake to Enviromed that
except as disclosed to Enviromed in writing on or before the date
hereof neither of them nor any of their shareholders, directors,
employees or agents has entered into any agreement, arrangement or
undertaking with Selfcare, or any of its shareholders, directors,
employees or agents, or EN PLC Limited Partnership or any of its
general or limited partners and that if during the continuance of this
Agreement either of them or any of their shareholders, directors,
employees or agents shall enter into any such agreement, arrangement or
undertaking with any of such persons it will immediately give notice
thereof in writing to Enviromed.
7.9 Trinity, Flambelle and any transferees or assignees referred to in
clause 8 covenant with and undertake to Enviromed that it will, during
the continuance of this Agreement (or lesser period as referred to in
clause 8.2), procure that the voting rights attaching to the Flambelle
Selfcare Shares are, in relation to resolutions of Selfcare relating to
or affecting the Enviromed Share Rights or otherwise affecting
Enviromed, exercised on the directions of Enviromed, provided that
Enviromed shall be entitled at any time by notice in writing to release
any future obligation under this clause.
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8. TRANSFER OF FLAMBELLE SELFCARE SHARES
8.1 In the event that the Flambelle Selfcare Shares are transferred or
assigned to a subsidiary or associated company of Trinity the
transferee or assignee shall execute an agreement to be unconditionally
bound by the provisions of clause 7.9 and this clause 8.
8.2 In the event that the Flambelle Selfcare Shares are transferred or
assigned to a third party prior to registration of such shares pursuant
to the Securities Act of 1933 of the United States of America the
parties agree the share certificate representing the Flambelle Selfcare
Shares shall bear a legend in the agreed form notifying the transferees
or assignees of the voting rights restrictions contained in clause 7.9.
8.3 Once the share certificates relating to the Flambelle Selfcare Shares
have been furnished by Selfcare or its transfer agent such certificates
will be deposited with and held by O'Donnell Sweeney (solicitors) on an
undertaking to Enviromed that the share certificates will not be
released to any party to which clause 8.2 applies without the legend
referred to in that clause being appended thereto.
9. FLAMBELLE
Trinity acknowledges that the benefits obtained by Flambelle (which Trinity
hereby represents to Enviromed it wholly owns) pursuant to this Agreement are
adequate consideration for Trinity's obligations as set out in this Agreement
and further Trinity agrees that during the continuance of this Agreement it
shall:
9.1 not dispose of any interest it has in Flambelle or allow any third
party to have any rights in relation to the management of Flambelle;
9.2 ensure Flambelle complies with all its obligations under this Agreement
and Trinity shall fully indemnity Enviromed for any liability or loss
incurred as a result of Flambelle not complying with such obligations;
and
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9.3 the provisions of clauses 9.1 and 9.2 shall apply in respect of any
subsidiary or associated company referred to in clause 8.1.
10. DURATION OF OBLIGATIONS
This Agreement shall continue in full force and effect until the later of:
10.1 Enviromed or Flambelle having sold, as the case may be, their Eastcourt
A Shares or Eastcourt B Shares pursuant to the terms of this Agreement;
and
10.2 no obligations being outstanding between any of the parties hereto
under the terms of this Agreement.
11. NOTICES
11.1 Any notice under or in connection with this Agreement shall be in
writing and shall be delivered personally or sent by first class post
(air mail if overseas), recorded delivery post, or by telex or telefax
to the party due to receive such notice at its address set out in this
Agreement or to such other address specified by that party by written
notice to the other.
11.2 In the absence of evidence of earlier receipt, a notice is deemed
given:
11.2.1 if delivered personally, when left at the address referred to
in clause 11.1;
11.2.2 if sent by mail, except air mail, 48 hours after posting it;
11.2.3 if sent by air mail, six days after posting it;
11.2.4 if sent by telex, when the proper answer-back is received; and
11.2.5 if sent by fax, on completion of its transmission.
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12. GENERAL
12.1 No party may assign or transfer or purport to assign or transfer any
rights benefits or obligations under this Agreement.
12.2 This Agreement represents (together with any documents referred to
herein) the entire agreement between the parties hereto in relation to
the Selfcare Sale Shares and no variation hereof shall be effective
unless made in writing. 12.3 This Agreement shall be governed by and
construed in accordance with the laws of England and the parties hereby
submit to the non-exclusive jurisdiction of the English Courts.
12.4 The failure by any of the parties hereto at any time to require
performance by any other party or to claim a breach of any term of this
Agreement shall not be deemed to be a waiver of any right under this
Agreement.
12.5 The parties hereto shall, and shall use their respective reasonable
endeavours to procure that any necessary third parties shall, execute
and do all such further deeds, documents and things as any party may
reasonably require by notice in writing to any other party to carry the
provisions of this Agreement into full force and effect.
12.6 Any date or period mentioned in this Agreement may be extended by
agreement between the parties hereto but as regards any date or period
(whether or not extended as aforesaid) time shall be of the essence of
this Agreement.
EXECUTED under hand in four originals the day and year first before written.
SIGNED for and on behalf of )
ENVIROMED PLC ) Thomas J. Murphy
Director
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SIGNED for and on behalf of )
TRINITY BIOTECH PLC ) Ronan O'Caoimh
Director
SIGNED for and on behalf of )
FLAMBELLE LIMITED ) Ronan O'Caoimh
Director
SIGNED for and on behalf of )
EASTCOURT LIMITED ) Ronan O'Caoimh
Director
Thomas J. Murphy
Director
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