<PAGE>
UNITED STATES
SECURITIES EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
(Amendment No. _____ )*
ORAVAX, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $.001 PER SHARE
(Title of Class of Securities)
68554R 10 7
(CUSIP Number)
Dr. John Brown
Chief Executive
Peptide Therapeutics Group PLC
321 Cambridge Science Park, Milton Road
Cambridge CB4 4WG, England
011-44-1223-423-333
with a copy to:
Michael Lytton, Esq.
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
(617) 573- 0100
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
November 10, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box.
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
(Continued on following pages)
(Page 1 of 11 pages)
- ------------------------
* 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).
<PAGE>
CUSIP NO. 68554R 10 7 13D Page 2 of 11 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY)
Peptide Therapeutics Group PLC
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
Not Applicable (b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2 (d) or 2(e) / /
Not Applicable
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
England and Wales
- --------------------------------------------------------------------------------
NUMBER OF SOLE VOTING POWER
7
SHARES 1,758,508 (1)
-----------------------------------------------------------
BENEFICIALLY SHARED VOTING POWER
8
OWNED BY 0 (2)
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 1,758,508 (1)
-----------------------------------------------------------
PERSON SHARED DISPOSITIVE POWER
10
WITH 0 (2)
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,758,508 (1)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
Not Applicable
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- -------------------
(1) See Items 3 and 4.
(2) See Item 6.
<PAGE>
CUSIP NO. 68554R 10 7 13D Page 3 of 11 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY)
Orange Acquisition Corp.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
Not Applicable (b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) / /
Not Applicable
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
NUMBER OF SOLE VOTING POWER
7
SHARES 1,758,508 (1)
-----------------------------------------------------------
BENEFICIALLY SHARED VOTING POWER
8
OWNED 0 (2)
-----------------------------------------------------------
BY EACH SOLE DISPOSITIVE POWER
9
REPORTING 1,758,508 (1)
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
0 (2)
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,758,508 (1)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
Not Applicable
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- --------------------------
(1) See Items 3 and 4.
(2) See Item 6.
<PAGE>
CUSIP NO. 68554R 10 7 13D Page 4 of 11 Pages
Item 1. Security and Issuer
This statement on Schedule 13D (the "Statement") relates to
shares of common stock, par value $.001 per share ("OraVax Common Stock"), of
OraVax, Inc. ("OraVax" or the "Issuer"), a Delaware corporation. The principal
executive offices of the Issuer are located at 38 Sidney Street, 4th Floor,
Cambridge, Massachusetts, 02139.
Item 2. Identity and Background
(a) - (c) and (f) This Statement is being filed by Peptide Therapeutics Group
PLC, an English public limited company ("Peptide"), and its wholly-owned
subsidiary, Orange Acquisition Corp., a Delaware corporation ("Orange Sub" and
together with Peptide, the "Purchaser"). The principal executive offices of
Peptide and Orange Sub are located at 321 Cambridge Science Park, Milton Road,
Cambridge CB4 4WG, England. Peptide is a biopharmaceutical company involved in
the research and development of novel drugs and vaccines. Orange Sub was
recently formed for the sole purpose of effecting the purchase of the Shares (as
defined below).
The name, principal occupation, business address and citizenship of
each of the executive officers and directors of Peptide and Orange Sub is set
forth on Schedule I hereto.
(d) and (e) During the last five years, neither Peptide, Orange Sub or,
to the best of Peptide's or Orange Sub's knowledge, any of the individuals named
in Schedule I hereto, has been (i) convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (ii) a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is 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 violation with
respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
On November 10, 1998, the Purchaser acquired 2,584 outstanding
shares (the "Shares") of 6% Convertible Preferred Stock ("Convertible
Preferred Stock") of OraVax from third parties pursuant to certain privately
negotiated stock purchase agreements made as of October 30, 1998
(collectively, the "Stock Purchase Agreement"). A form of the Stock Purchase
Agreement is attached hereto as Exhibit 1 and is incorporated herein by
reference. The Shares are convertible into shares of OraVax Common Stock
based on a discount to the market price of OraVax Common Stock. The terms of
the Convertible Preferred Stock, however, prohibit the conversion of any
share of Convertible Preferred Stock if it would result in the holder
becoming the beneficial owner of 10% or more of OraVax Common Stock. The
purchase price of the Shares was $1,090.00 per share plus accrued and unpaid
dividends, for an aggregate purchase price of approximately $2.95 million,
and was financed from Purchaser's working capital. Certain terms of the
Convertible Preferred Stock are subject to modification under certain
circumstances as described in Item 4 below.
tIem 4. Purpose of Transaction
On November 10, 1998, Peptide and OraVax entered into an Agreement and
Plan of Acquisition (the "Merger Agreement") pursuant to which a wholly-owned
subsidiary of Peptide will be merged with and into OraVax (the "Merger"), with
OraVax becoming a wholly-owned subsidiary of Peptide. A copy of the Merger
Agreement is filed as Exhibit 2
<PAGE>
CUSIP NO. 68554R 10 7 13D Page 5 of 11 Pages
hereto and incorporated herein by reference.
In the Merger, holders of OraVax Common Stock will receive ordinary
shares of Peptide, with a value of $15 million less the amounts paid by
Peptide to acquire the Convertible Preferred Stock and certain other
securities of OraVax. Based on a Peptide share price of 112.5 pence ($1.87
using a dollar/pound exchange rate of 1.6633) on November 10, 1998, the last
trading day prior to execution of the Merger Agreement, the total number of
ordinary shares of Peptide to be issued would be approximately 6.4 million.
The ordinary shares issued in the Merger may be in the form of American
Depositary Shares of Peptide ("Peptide ADSs").
Simultaneous with the execution of the Merger Agreement, Purchaser
purchased the 2,584 shares of Convertible Preferred Stock from third parties.
The 2,584 shares represented approximately 95% of the outstanding Convertible
Preferred Stock, which, on November 10, 1998, would have been convertible into
15,813,953 shares of OraVax Common Stock but for a restriction contained in the
terms of the Convertible Preferred Stock that prohibits the conversion of any
share of Convertible Preferred Stock if it would result in the holder becoming
the beneficial owner of 10% or more of OraVax Common Stock. Upon completion of
the merger the Convertible Preferred Stock, held by Purchaser, will be retired.
Completion of the Merger is subject to certain conditions, including
approval of the holders of a majority of the outstanding shares of OraVax Common
Stock entitled to vote, approval of the holders of the ordinary shares of
Peptide, and Peptide successfully completing a financing. The Merger Agreement
is subject to termination in certain circumstances, including if the Merger is
not consummated by July 31, 1999.
If the Merger Agreement is terminated, under certain circumstances,
OraVax has the right to repurchase all of the shares of Convertible Preferred
Stock owned by Purchaser within 90 days of such termination at a per share
purchase price of $1,090.00 plus accrued dividends. In addition, under certain
circumstances, Peptide will have the right to sell to OraVax all of the shares
of Convertible Preferred Stock owned by Purchaser within 90 days of such
termination at a per share purchase price of $1,090.00 plus accrued dividends.
If neither Peptide nor OraVax exercise its respective put or call rights within
90 days of such termination, then certain terms of the Convertible Preferred
Stock will be modified, including removal of the limitation on the conversion of
shares if such conversion would result in the beneficial ownership of 10% or
more of OraVax Common Stock.
The foregoing summary of the contents of the Merger Agreement and Stock
Purchase Agreement is qualified in its entirety by reference to the exhibits
hereto.
Except as set forth in this Item 4, the Merger Agreement, the Stock
Purchase Agreement, the Stockholder Voting Agreement (as described below), or
the Affiliate Letter (as defined below), neither Peptide, Orange Sub or, to the
best of Peptide's or Orange Sub's knowledge, any of the individuals named in
Schedule I hereto, has any plans or proposals that relate to or that would
result in any of the actions specified in clauses (a) through (j) of Item 4 of
Schedule 13D.
Item 5. Interest in Securities of the Issuer
(a) and (b) Orange Sub beneficially owns approximately 1,758,508 shares
of OraVax Common Stock issuable upon the conversion of the Shares. A total of
approximately 15,813,953
<PAGE>
CUSIP NO. 68554R 10 7 13D Page 6 of 11 Pages
shares of OraVax Common Stock would be issuable upon conversion of the Shares
but for a restriction contained in the terms of the Convertible Preferred Stock
that prohibits the conversion of any share of Convertible Preferred Stock if it
would result in the holder becoming the beneficial owner of 10% or more of
OraVax Common Stock.
Peptide owns 100% of the capital stock of Orange Sub and as a result is
deemed to have an indirect interest in and the power to direct the vote and
disposition of 100% of the shares of OraVax Common Stock issuable upon
conversion of the Shares, subject to the 10% ownership restriction described
above. Pursuant to the terms of the Stockholder Voting Agreements (as
described in Item 6 below), Peptide has the power to vote 1,247,999 shares of
OraVax Common Stock with respect to the Merger.
Except as set forth above, neither Peptide, Orange Sub or, to the best
of Peptide's knowledge, any of the individuals named in Schedule I hereto, is
the beneficial owner of OraVax Common Stock.
(c) Except as described herein, neither Peptide, Orange Sub or, to the
best of Peptide's or Orange Sub's knowledge, any of the individuals named in
Schedule I hereto, has effected any transaction in OraVax Common Stock during
the past 60 days.
(d) No other person is known to have the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of the
shares of OraVax Common Stock upon conversion of the Shares.
(e) Inapplicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
The Merger Agreement contains certain customary restrictions on the
conduct of the business of Peptide and OraVax pending the Merger, including
certain customary restrictions relating to OraVax Common Stock. The Merger
Agreement provides that OraVax, unless otherwise required by the fiduciary
duties of its Board of Directors, will use its best efforts to solicit proxies
from its stockholders in favor of the approval of the Merger Agreement and the
Merger.
Certain stockholders of OraVax have entered into agreements with
Peptide regarding voting and disposition of their shares of OraVax Common Stock
(the "Stockholder Voting Agreements"), a form of which is attached hereto as
Exhibit 3 hereto and incorporated herein by reference. Pursuant to the terms of
such Stockholder Voting Agreements, such stockholders have agreed, until
termination of the Merger Agreement (i) not to transfer or otherwise dispose of
any shares of OraVax Common Stock owned by them and (ii) to vote all such shares
of OraVax Common Stock (w) in favor of the Merger and any matters that would
facilitate the Merger, (x) against any proposal made in opposition to or in
competition with the Merger, (y) against any merger, consolidation, sale of
assets, reorganization or recapitalization with any party other than Peptide and
its affiliates, and (z) against any proposed liquidation or winding up of
OraVax. Such stockholders have granted certain officers of Peptide irrevocable
proxies (the "Proxies") to vote the stockholders' shares to implement the
foregoing agreements. Directors, executive
<PAGE>
CUSIP NO. 68554R 10 7 13D Page 7 of 11 Pages
officers and their associates having the right to vote in the aggregate
1,247,999 shares of OraVax Common Stock, or approximately 7.0% of the OraVax
Common Stock outstanding as of November 5, 1998, (excluding shares that the
stockholder has the right to acquire upon the exercise of stock options and
shares issuable on exercise of the option), have executed the Stockholder Voting
Agreements.
OraVax also has agreed to use its best efforts to cause each
director, executive officer and affiliate (for purposes of Rule 145 under the
Securities Act of 1933 ) of OraVax to execute, as soon as possible after the
execution of the Merger Agreement, an agreement in customary form with
respect to restrictions on sale of ordinary shares or Peptide ADSs after the
merger except in compliance with Rule 145 ("Affiliate Letter").
Except as provided in the Merger Agreement, the Stock Purchase
Agreement, the Stockholder Voting Agreement or the Affiliate Letter, or as set
forth herein, neither Peptide, Orange Sub or, to the best of Peptide's or Orange
Sub's knowledge, any of the individuals named in Schedule I hereto, has any
contracts, arrangements, understandings or relationships (legal or otherwise)
with any person with respect to any securities of OraVax, including, but not
limited to, transfer or voting of any securities, finder's fees, joint ventures,
loan or option arrangements, puts or calls, guarantees of profits, division of
profits or losses, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits
Exhibit 1 - Form of Stock Purchase Agreement by and among
Orange Acquisition Corp. and certain stockholders
of OraVax, Inc.
Exhibit 2 - Agreement and Plan of Acquisition dated as of
November 10, 1998 by and among Peptide Therapeutics
Group PLC, Peach Acquisition Corp. and OraVax, Inc.
Exhibit 3 - Form of Stockholder Voting Agreement by and among
Peptide Therapeutics Group PLC and certain
stockholders of OraVax, Inc.
Exhibit 4 - Agreement as to Joint Filing of Schedule 13D.
<PAGE>
CUSIP NO. 68554R 10 7 13D Page 8 of 11 Pages
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.
PEPTIDE THERAPEUTICS GROUP PLC
Date: November 20, 1998 By: /s/ Gordon Cameron
-------------------
Gordon Cameron
Finance Director
ORANGE ACQUISITION CORP.
Date: November 20, 1998 By: /s/ Gordon Cameron
------------------
Gordon Cameron
Treasurer
<PAGE>
CUSIP NO. 68554R 10 7 13D Page 9 of 11 Pages
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF PEPTIDE THERAPEUTICS GROUP PLC
The name, present principal occupation or employment, and business
address of each of the directors and executive officers of Peptide Therapeutics
Group PLC ("Peptide") is set forth below. Unless otherwise indicated, the
business address of each of the following persons is the address of the
principal executive offices of Peptide. Unless otherwise indicated, each
individual listed below is a citizen of the United Kingdom.
* Alan Goodman
Chairman
Peptide Therapeutics Group PLC
321 Cambridge Science Park
Milton Road
Cambridge CB4 4WG, England
*# Dr. John Brown
Chief Executive
Peptide Therapeutics Group PLC
321 Cambridge Science Park
Milton Road
Cambridge CB4 4WG, England
*# Gordon Cameron
Finance Director and Secretary
Peptide Therapeutics Group PLC
321 Cambridge Science Park
Milton Road
Cambridge CB4 4WG, England
*# Nicholas Higgins
Commercial Director
Peptide Therapeutics Group PLC
321 Cambridge Science Park
Milton Road
Cambridge CB4 4WG, England
* Sir Brian Richards
Non-Executive Director
Peptide Therapeutics Group PLC
321 Cambridge Science Park
Milton Road
Cambridge CB4 4WG, England
*+ Alan Dalby
Chairman
Reckitt & Colman PLC
One Burlington Lane
London W4 2RW, England
* Alan Smith
Non-Executive Director
Peptide Therapeutics Group PLC
321 Cambridge Science Park
Milton Road
Cambridge CB4 4WG, England
- -----------------------
* Director
# Executive Officer
+ U.S. Citizen
<PAGE>
CUSIP NO. 68554R 10 7 13D Page 10 of 11 Pages
DIRECTORS AND EXECUTIVE OFFICERS
OF ORANGE ACQUISITION CORP.
The name, present principal occupation or employment, and business
address of each of the directors and executive officers of Orange Acquisition
Corp. ("Orange Sub") is set forth below. Unless otherwise indicated, the
business address of each of the following persons is the address of the
principal executive offices of Orange Sub. Unless otherwise indicated, each
individual listed below is a citizen of the United Kingdom.
* Alan Goodman
Chairman
Peptide Therapeutics Group PLC
321 Cambridge Science Park
Milton Road
Cambridge CB4 4WG, England
*# Dr. John Brown
Chief Executive
Peptide Therapeutics Group PLC
321 Cambridge Science Park
Milton Road
Cambridge CB4 4WG, England
*# Gordon Cameron
Finance Director and Secretary
Peptide Therapeutics Group PLC
321 Cambridge Science Park
Milton Road
Cambridge CB4 4WG, England
*+ Lance K. Gordon
President and Chief Executive Officer
OraVax, Inc.
38 Sidney Street, 4th Floor
Cambridge, Massachusetts 02139
#+ Michael Lytton
Partner
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
- -----------------------
* Director
# Executive Officer
+ U.S. Citizen
<PAGE>
CUSIP NO. 68554R 10 7 13D Page 11 of 11 Pages
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
- ------- -----------
<S> <C>
1 Form of Stock Purchase Agreement by and among
Orange Acquisition Corp. and certain stockholders of
OraVax, Inc.
2 Agreement and Plan of Acquisition dated as of
November 10, 1998 by and among Peptide Therapeutics
Group PLC, Peach Acquisition Corp. and OraVax, Inc.
(Incorporated by reference to Exhibit 2.1 to the Form
8-K filed on November 19, 1998 by OraVax, Inc., File
No. 0-26034).
3 Form of Stockholder Voting Agreement by and
among Peptide Therapeutics Group PLC and certain
stockholders of OraVax, Inc.
4 Agreement as to Joint Filing of Schedule 13D.
</TABLE>
<PAGE>
EXHIBIT 1
ORAVAX, INC.
Stock Purchase Agreement
This Stock Purchase Agreement (this "Agreement") is made as of October 30,
1998 by and among Orange Acquisition Co. ("the Acquirer") and stockholder
of OraVax, Inc. ("OraVax") whose name is set forth on the signature page of
this Agreement (the "Stockholder").
Background
A. The Stockholder owns shares of 6% Convertible Preferred Stock of
OraVax ("Preferred Stock") which are convertible into shares of Common Stock
of OraVax ("Common Stock").
B. On or prior to November 10, 1998, the Acquirer intends to enter into
an agreement with OraVax providing for the acquisition of OraVax.
C. In connection with its proposed acquisition of OraVax, the Acquirer
desires to purchase the shares of Preferred Stock held by the Stockholder on
the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereby agree as follows:
1. Purchase and Sale of the Shares
1.1 Purchase of the Shares from the Stockholder. Subject to the
terms and conditions of this Agreement, at the Closing (as defined in Section
6), the Stockholder shall sell, transfer and deliver to the Acquirer, and the
Acquirer shall purchase, acquire and accept from the Stockholder, all the
shares of Preferred Stock held by the Stockholder (the "Shares").
1.2 Purchase Price for the Shares. The purchase price to be paid by
the Acquirer to the Stockholder for the Shares (the "Purchase Price") shall
be payable in the manner described in Section 2 of this Agreement and shall
be calculated as follows:
(a) If the Closing occurs on or before November 3, 1998, then
the Purchase Price shall be equal to $1,070.00 per share plus accrued
dividends thereon.
(b) If the Closing occurs after November 3, 1998 and on or
before November 10, 1998, then the Purchase Price shall be equal to $1,090.00
per share plus accrued dividends thereon.
<PAGE>
2. Payment of Purchase Price. At the Closing, the Acquirer shall pay the
Purchase Price to the Stockholder in cash, by cashier's or certified check,
or by wire transfer of immediately available funds to an account designated
by the Stockholder.
3. Lock-up. Upon execution of this Agreement, the Stockholder agrees not
to transfer, sell or otherwise assign any of the Shares to a third party
prior to 8:00 p.m. (Boston time) on November 10, 1998. Further, during the
period commencing at 9:00 a.m. (Boston time) on November 3, 1998 and ending
at 8:00 p.m. (Boston time) on November 10, 1998, the Stockholder agrees (i)
not to convert any shares of Preferred Stock into Common Stock, and (ii) not
to engage in any transaction with respect to securities of OraVax other than
sales (but not short sales) of Common Stock issued to the Stockholder upon
conversion of shares of Preferred Stock prior to November 3, 1998.
Notwithstanding the foregoing, if at any time the Acquirer becomes unable or
unwilling to purchase the Shares as contemplated by this Agreement, the
Acquirer shall so notify the Stockholder as soon as practicable by telephone
and facsimile, and the restrictions set forth in this Section 3 shall be of
no further force or effect.
4. Representations and Warranties
4.1 Representations and Warranties of the Acquirer. The Acquirer
hereby represents and warrants to the Stockholder as follows:
(a) The Acquirer is duly organized and in good standing under
the laws of its jurisdiction of organization and has the requisite corporate
power to own its properties and to carry on its business as now being
conducted. The Acquirer is duly qualified as a foreign corporation to do
business in every jurisdiction other than those in which the failure to so
qualify would not have a material adverse effect on the business, operations
or financial condition of the Acquirer.
(b) The Acquirer has the requisite corporate power and
authority to enter into and perform this Agreement, and this Agreement
constitutes a valid and binding obligation of the Acquirer enforceable
against the Acquirer in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to the enforcement of
creditors' rights and remedies or by other equitable principles of law.
(c) The execution, delivery and performance of this Agreement
by the Acquirer do not and will not (i) result in a violation of the
Acquirer's certificate of incorporation, as amended, or by-laws, as amended,
or (ii) conflict with, or constitute a default under, any agreement,
indenture or instrument to which the Acquirer is a party (except for such
conflicts or defaults as would not, individually or in the aggregate, have a
material adverse effect on the business, operations or financial condition of
the Acquirer).
4.2 Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to the Acquirer as follows:
2
<PAGE>
(a) The Stockholder has the requisite power and authority to
enter into and perform this Agreement, and this Agreement constitutes a valid
and binding obligation of the Stockholder enforceable against the Stockholder
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to the enforcement of creditors' rights and remedies or by other
equitable principles of law.
(b) The Stockholder is the sole legal and beneficial owner of
the Shares and has the power to convey to the Acquirer good and marketable
title to the Shares free and clear of all liens and encumbrances. The
execution, delivery and performance of this Agreement by the Stockholder do
not and will not conflict with, or constitute a default under, any agreement,
indenture or instrument to which the Stockholder is a party.
5. Conditions to Closing
5.1 Conditions to the Obligations of the Acquirer. The obligations
of the Acquirer under this Agreement are subject to the fulfillment, as of
the Closing, of the following conditions precedent, each of which may be
waived at the sole discretion of the Acquirer:
(a) The Acquirer and OraVax shall have entered into an
agreement providing for the acquisition of OraVax by the Acquirer (the
"Acquisition Agreement").
(b) The representations and warranties of the Stockholder set
forth in Subsection 4.2 shall be true and correct in all material respects.
(c) No statute, rule, regulation, decree, ruling or injunction
shall have been enacted, entered, promulgated or endorsed by any court or
governmental authority of competent jurisdiction which prohibits or seeks to
prohibit the consummation of any of the transactions contemplated by this
Agreement, and no claim or lawsuit shall have been made or filed which
relates to the issuance by OraVax or the purchase by the Acquirer of shares
of the Preferred Stock.
5.2 Conditions to the Obligations of the Stockholder. The
obligations of the Stockholder under this Agreement are subject to the
fulfillment, as of the Closing, of the following conditions precedent, each
of which may be waived at the sole discretion of the Stockholder:
(a) The Acquirer and OraVax shall have entered into the
Acquisition Agreement.
(b) The representations and warranties of the Acquirer set
forth in Subsection 4.1 shall be true and correct in all material respects.
3
<PAGE>
(c) No statute, rule, regulation, decree, ruling or injunction
shall have been enacted, entered, promulgated or endorsed by any court or
governmental authority of competent jurisdiction which prohibits or seeks to
prohibit the consummation of any of the transactions contemplated by this
Agreement, and no claim or lawsuit shall have been made or filed which
relates to the issuance by OraVax or the purchase by the Acquirer of shares
of the Preferred Stock.
6. The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Palmer & Dodge
LLP, One Beacon Street, Boston, Massachusetts as soon as practicable
following execution by the Acquirer and OraVax of the Acquisition Agreement,
or at such other place and/or time as the Acquirer and the Stockholder may
agree upon.
7. Notice. All notices required or permitted hereunder shall be in
writing and deemed effectively given (i) upon personal delivery, (ii) one day
after deposit with an overnight delivery service, postage prepaid, or (iii)
two days after deposit with the United States Post Office, postage prepaid.
All notices shall be addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in
accordance with this Section 7.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties, and supersedes all prior agreements and understandings,
relating to the subject matter of this Agreement.
9. Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Acquirer and the Stockholder.
10. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Delaware.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ORANGE ACQUISITION CO.
By:
--------------------------------
Name:
Title:
Address:
--------------------------
THE STOCKHOLDER
By:
--------------------------------
Name:
Title:
Address:
--------------------------
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<PAGE>
EXHIBIT 3
STOCKHOLDER VOTING AGREEMENT
This Stockholder Voting Agreement (the "Agreement") dated as of
November __, 1998 is by and between Peptide Therapeutics Group plc
("Peptide "), a corporation organized under the laws of England and Wales,
and the undersigned stockholder ("Stockholder") of OraVax, Inc. (the "Seller"),
a Delaware corporation.
RECITALS
A. Concurrently with the execution of this Agreement, Parent, Seller and
Peach Acquisition Corporation ("Merger Sub"), a Delaware corporation and a
wholly owned subsidiary of Parent, have entered into an Agreement and Plan of
Merger (the "Merger Agreement") which provides for a merger of Seller with
and into the Merger Sub (the "Merger"). Pursuant to the Merger, shares of
common stock of Seller will be converted into the right to receive American
Depositary Shares, each representing 10 ordinary shares, nominal value of 10
pence per share of Parent on the basis set forth in the Merger Agreement.
B. The Stockholder is the record holder and beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of such number of shares of the outstanding capital stock of
Seller as is indicated on the final page of this Agreement (the "Shares").
C. Parent desires the Stockholder to agree, and the Stockholder is
willing to agree, (i) not to transfer or otherwise dispose of any of the
Shares, or any other shares of capital stock of Seller acquired hereafter and
prior to the Expiration Date (as defined in Section 1 below) (together with
the Shares, the "Subject Shares"), except as otherwise permitted hereby, and
(ii) to vote the Subject Shares so as to facilitate consummation of the
Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Retain Shares. Stockholder agrees not to transfer
(except as may be specifically required by court order), sell, exchange, pledge
or otherwise dispose of or encumber any of the Subject Shares, or to make any
offer or agreement relating thereto, at any time prior to the Expiration Date.
As used herein, the term "Expiration Date" shall mean the earlier to occur of
such date and time as (i) the Merger shall become effective in accordance with
the provisions of the Merger Agreement and (ii) the Merger Agreement shall be
terminated pursuant to Section 9.1 thereof.
2. Agreement to Vote Subject Shares. At every meeting of the
stockholders of Seller called with respect to any of the following, and at
every adjournment thereof, and on every action or approval by written consent
of the stockholders of Seller with respect to any of the following,
Stockholder shall vote the Subject Shares: (i) in favor of approval of the
Merger Agreement and the Merger and any matter that could reasonably be
expected to facilitate the Merger; and (ii) against approval of any proposal
made in opposition to or competition with
<PAGE>
consummation of the Merger and against any merger, consolidation, sale of
assets, reorganization or recapitalization, with any party other than with
Parent and its affiliates, and against any liquidation or winding up of Seller
(each of the foregoing is hereinafter referred to as an "Opposing Proposal").
Stockholder agrees not to take any actions contrary to Stockholder's obligations
under this Agreement.
3. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Stockholder agrees to deliver to Parent a proxy in the form
attached hereto as Exhibit I (the "Proxy"), which shall be irrevocable to the
extent provided under the Delaware General Corporation Law, with respect to
the total number of shares of capital stock of Seller beneficially owned (as
such term is defined in Rule 13d-3 under the Exchange Act) by Stockholder set
forth therein.
4. Representations, Warranties and Covenants of the Stockholder.
Stockholder hereby represents, warrants and covenants to Parent as follows:
4.1. Ownership of Shares. Stockholder (i) is and will be at
the time of the action of the stockholders of Seller on the Merger the
beneficial owner of the Shares and the Subject Shares, which at the date
hereof and at all times up until the Expiration Date will be free and clear
of any liens, claims, options, charges or other encumbrances; (ii) does not
beneficially own any shares of capital stock of Seller other than the Shares
(excluding shares as to which Stockholder currently disclaims beneficial
ownership in accordance with applicable law); and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement and
the Proxy.
4.2. No Proxy Solicitations. Stockholder will not, and will
not permit any entity under Stockholder's control to: (i) solicit proxies or
become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the Exchange Act) with respect to an Opposing Proposal
or otherwise encourage or assist any party in taking or planning any action
that would compete with, restrain or otherwise serve to interfere with or
inhibit the timely consummation of the Merger in accordance with the terms of
the Merger Agreement; (ii) initiate a stockholders' vote or action by consent
of stockholders of Seller with respect to an Opposing Proposal; or (iii)
become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of Seller that takes any
action in support of an Opposing Proposal.
5. No Limitation on Discretion as Director. This Agreement is
intended solely to apply to the exercise by Stockholder in his or her
individual capacity of rights attaching to ownership of the Subject Shares,
and nothing herein shall be deemed to apply to, or to limit in any manner the
discretion of Stockholder with respect to, any action which may be taken or
omitted by him or her acting in his or her fiduciary capacity as a director
of Seller.
6. Additional Documents. Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent or Stockholder, as the case may be, to carry out
the intent of this Agreement.
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<PAGE>
7. Consent and Waiver. Stockholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreements to which Stockholder is a party or pursuant to
any rights Stockholder may have.
8. Termination. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
9. Miscellaneous.
9.1. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, then the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
9.2. Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor
any of the rights, interests or obligations of the parties hereto may be
assigned by either party without prior written consent of the other.
9.3. Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
9.4. Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent will be irreparably harmed and that there will
be no adequate remedy at law for a violation of any of the covenants or
agreements of Stockholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Parent upon any such
violation, Parent shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to Parent at law or in equity.
9.5. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or facsimile, or sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or overnight
courier (prepaid) to the respective parties as follows:
(a) if to Parent, to:
Peptide Therapeutics Group plc
321 Cambridge Science Park:
Milton Road
Cambridge, England CB4 4WG
Attn: John R. Brown
Telephone: 011-44-1223-423-333
Facsimile: 011-44-1223-423-341
3
<PAGE>
with a copy to:
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
Attn: Michael Lytton, Esq.
Telephone: (617) 573-0100
Facsimile: (617) 227-4420
(b) if to the Stockholder:
To the address for notice set forth on the last page hereof.
with a copy to:
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attn: John M. Westcott, Jr., Esq.
Telephone: (617) 526-6000
Facsimile: (617) 526-5000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
9.6. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the
Commonwealth of Massachusetts.
9.7. Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
9.8. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
9.9. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction of interpretation of
this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Stockholder Voting
Agreement to be duly executed on the date and year first above written.
PEPTIDE THERAPEUTICS GROUP PLC
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
STOCKHOLDER:
By:
------------------------------
Stockholder's Address for Notice:
---------------------------------
---------------------------------
---------------------------------
Shares beneficially owned:
shares of Common Stock
---------------
Shares subject to outstanding options:
shares of Common Stock
---------------
[Signature Page to Stockholder Voting Agreement]
5
<PAGE>
EXHIBIT 4
AGREEMENT AS TO JOINT FILING OF SCHEDULE 13D
Each of the undersigned hereby affirms that it is individually eligible
to use Schedule 13D, and agrees that this Schedule 13D is filed on its behalf.
Date: November 20, 1998
PEPTIDE THERAPEUTICS GROUP PLC
By /s/ Gordon Cameron
----------------------
Gordon Cameron
Finance Director
ORANGE ACQUISITION CORP.
By /s/ Gordon Cameron
----------------------
Gordon Cameron
Treasurer
