EXHIBIT A
[FORM OF STOCKHOLDERS AGREEMENT, DATED AS OF AUGUST 22, 1997, AMONG
CAMBREX CORPORATION, BW ACQUISITION CORPORATION AND ANASCO GMBH]
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of August 22, 1997 among Cambrex
Corporation, a Delaware corporation ("Parent"), BW Acquisition Corporation,
a Delaware corporation ("Purchaser") and ANASCO GmbH, a German limited
liability company ("Stockholder").
WHEREAS, concurrently herewith Parent, the Purchaser, and
BioWhittaker, Inc., a Delaware corporation (the "Company"), are entering
into an Agreement and Plan of Merger of even date herewith (as such
agreement may be amended from time to time, the "Merger Agreement";
capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to them in the Merger Agreement) pursuant to
which the Purchaser will be merged with and into the Company (the
"Merger"); and
WHEREAS, in furtherance thereof, the Parent proposes that the
Purchaser make an offer (the "Offer") to purchase for cash all of the
issued and outstanding shares of common stock of the Company, and all
associated rights to purchase preferred stock, at a price of $11.625 per
share net to the seller;
WHEREAS, Parent has required, as a condition to its entering into
the Merger Agreement and commencing the Offer, that Stockholder enter into,
and Stockholder has agreed to enter into, this Agreement.
NOW, THEREFORE, to satisfy this condition and in consideration of
Parent's entering into the Merger Agreement and causing the Offer to be
commenced, respectively, and in consideration of the premises and the
representations, warranties and covenants contained herein, the parties
agree as follows:
Exh. A-1
1. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder
hereby represents and warrants to Parent as follows:
(a) OWNERSHIP OF SHARES. (i) Stockholder is the record holder
and beneficial owner of the number of shares of the common stock of
the Company, par value $.01 per share (the "Company Common Stock"),
set forth opposite Stockholder's name on Schedule A hereto (the
"Existing Shares", and together with any shares of Company Common
Stock acquired by Stockholder after the date hereof and prior to the
termination hereof, whether upon exercise of options or warrants,
conversion of convertible securities, purchase, exchange or otherwise,
the "Shares").
(ii) On the date hereof, the Existing Shares set forth opposite
Stockholder's name on Schedule A constitute all of the shares of
Company Common Stock owned by Stockholder.
(iii) Stockholder has (A) sole power of disposition; (B) sole
voting power; and (C) sole power to demand dissenter's or appraisal
rights, in each case with respect to all of Stockholder's Existing
Shares and with no restrictions on such rights, subject to applicable
federal securities laws and the terms of this Agreement.
(b) POWER; BINDING AGREEMENT. Stockholder has all requisite
legal capacity, power and authority to enter into and perform all of
Stockholder's obligations under this Agreement. The execution,
delivery and performance of this Agreement by Stockholder will not
violate any other agreement to which Stockholder is a party or by
which Stockholder is bound including, without limitation, any voting
agreement, stockholders agreement, voting trust or other agreement.
This Agreement has been duly and validly authorized, executed and
delivered by Stockholder and constitutes a valid and binding agreement
of Stockholder, enforceable against Stockholder in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
the enforcement of creditors' rights generally or by general
principles of equity. There is no beneficiary of or holder of a
voting trust certificate whose consent is required for the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(c) NO CONFLICTS. Except for filing under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), if
applicable, (I) no filing with, and no permit, authorization, consent
or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by Stockholder and the
consummation by Stockholder of the transactions contemplated hereby
and (II) neither the execution and delivery of this Agreement by
Stockholder nor the consummation by Stockholder of the transactions
contemplated hereby nor compliance by Stockholder with any of the
provisions hereof shall (A) conflict with or result in any breach of
the applicable organization documents applicable to Stockholder, (B)
result in a material violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to
Exh. A-2
any third party right of termination, cancellation, modification,
prepayment or acceleration) under any of the terms, conditions or
provisions of any material note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Stockholder is a party
or by which such Stockholder or any of such Stockholder's properties
or assets may be bound or (C) violate any order, writ, injunction,
decree, judgment, statute, rule, regulation or governmental permit or
license (collectively, "Laws") applicable to Stockholder or any of
such Stockholder's properties or assets.
(d) Stockholder's Shares and the certificates representing
Shares are now and at all times during the term hereof will be held by
Stockholder, or by a nominee or custodian for the benefit of
Stockholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings, arrangements or
any other encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder.
(e) No broker, investment banker, financial adviser or other
Person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission payable by Parent or Purchaser in
connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of Stockholder.
(f) Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
2. AGREEMENT TO TENDER. Stockholder hereby irrevocably agrees
to duly tender all of the Shares of Stockholder pursuant to the terms of
the Offer and not to withdraw such Shares prior to the expiration of the
Offer.
3. AGREEMENT TO VOTE; PROXY.
(a) VOTING. Stockholder hereby agrees that, during the time
this Agreement is in effect, at any meeting of the stockholders of the
Company, however called, or in connection with any written consent of the
stockholders of the Company, Stockholder shall vote (or cause to be voted)
the Shares of Stockholder (I) in favor of the Merger, the execution and
delivery by the Company of the Merger Agreement and the approval of the
terms thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance hereof
and thereof; (II) against any action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation
or agreement of the Company under the Merger Agreement, the Offer or this
Agreement; and (III) except as specifically requested in writing by Parent
in advance, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its subsidiaries; (B) a sale, lease or
Exh. A-3
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, XXXXX XXXXXX AND XXXXX XXXXXX IN THEIR RESPECTIVE CAPACITIES AS
OFFICERS OF PURCHASER, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO
ANY SUCH OFFICE OF PURCHASER, AND ANY OTHER DESIGNEE OF PURCHASER, EACH OF
THEM INDIVIDUALLY, SUCH STOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION
DATE) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE
THE SHARES AS INDICATED IN SECTION 3(a) ABOVE. STOCKHOLDER INTENDS THIS
PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED WITH AN
INTEREST AND WILL TAKE SUCH FURTHER ACTION AND EXECUTE SUCH OTHER
INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND
HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY STOCKHOLDER WITH RESPECT TO
STOCKHOLDER'S SHARES.
4. CERTAIN COVENANTS OF STOCKHOLDER. Except in accordance with
the terms of this Agreement, Stockholder hereby covenants and agrees as
follows:
(a) NO SOLICITATION. Stockholder shall not, directly or
indirectly (including through advisors, agents or other intermediaries),
initiate, solicit, negotiate, encourage or provide confidential information
to facilitate any proposal or offer by any Person that constitutes or could
reasonably be expected to lead to an Acquisition Transaction; provided,
however, that no provision of this Agreement shall prohibit or in any way
restrict the right of Stockholder and its affiliates to initiate, solicit,
negotiate, encourage or provide confidential information to any party in
connection with a possible sale or other disposition by Stockholder or such
affiliate of its interest in Boehringer Ingelheim Bioproducts, a Delaware
general partnership. If Stockholder receives any such inquiry or proposal,
then Stockholder shall promptly inform Parent of the material terms and
conditions, if any, of such inquiry or proposal and the identity of the
Person making it. Stockholder will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any of the foregoing. Nothing
in this Section 4(a) shall restrict or limit the ability of Stockholder's
designee on the Board of Directors of the Company to take or perform in
such capacity any of the actions or do any of the things that the Company
is permitted to take or perform under Section 4.1(a) and 4.1(b) of the
Merger Agreement.
Exh. A-4
(b) RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE;
RESTRICTION ON WITHDRAWAL. Stockholder shall not, directly or indirectly:
(I) except pursuant to the terms of the Merger Agreement, the Offer and
this Agreement, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of (collectively, "Disposition"), enforce or
permit the execution of the provisions of any agreement with the Company
whereby the Company may be obligated to repurchase, or enter into any other
contract, option or other arrangement or understanding with respect to, or
otherwise consent to the Disposition of any or all of Stockholder's Shares
or any interest therein; (II) except as contemplated hereby, grant any
proxies or powers of attorney, deposit any Shares into a voting trust or
enter into a voting agreement with respect to any Shares; or (III) take any
action that would make any representation or warranty of Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling Stockholder from performing Stockholder's obligations under this
Agreement.
(c) WAIVER OF APPRAISAL AND DISSENTER'S RIGHTS. Stockholder
hereby waives any rights of appraisal or rights to dissent from the Merger
that Stockholder may have.
5. OPTION. (a) Stockholder hereby grants to Purchaser an
irrevocable option (the "Option") to purchase Stockholder's Shares, on the
terms and subject to the conditions set forth herein.
(b) The Option may be exercised by Purchaser, as a whole and not in
part, at any time and from time to time from and after any time when the
Merger Agreement has been terminated in accordance with its terms and prior
to the Termination Date, subject to the conditions set forth in Section
5(f).
(c) If Purchaser wishes to exercise the Option, Purchaser shall
send a written notice (the "Option Notice") to Stockholder of its intention
to exercise the Option, specifying the place, and, if then known, the time
and the date (the "Closing Date") of the closing (the "Closing") of the
purchase. The Closing Date shall occur on the third business day after the
date on which such notice is delivered.
(d) At the Closing, Stockholder shall deliver to Purchaser (or
its designee) all of Stockholder's Shares required to be delivered pursuant
to the Option Notice by delivery of a certificate or certificates
evidencing such Shares, duly endorsed to Purchaser or accompanied by stock
powers duly executed in favor of Purchaser, with all necessary stock
transfer stamps affixed.
(e) At the Closing, Purchaser shall pay, and Parent shall cause
Purchaser to pay, to Stockholder, by wire transfer in immediately available
funds to an account specified by Stockholder in writing no more than two
days prior to the Closing, an amount equal to the product of the Merger
Consideration and the number of shares purchased pursuant to the exercise
of the Option.
Exh. A-5
(f) The Closing shall be subject to the satisfaction of each of
the following conditions:
(i) no court, arbitrator or governmental body, agency or
official shall have issued any order, decree or ruling and there shall
not be any statute, rule or regulation, restraining, enjoining or
prohibiting the consummation of the purchase and sale of the Shares
pursuant to the exercise of the Option;
(ii) any waiting period applicable to the consummation of the
purchase and sale of the Shares pursuant to the exercise of the Option
under the HSR Act shall have expired or been terminated; and
(iii) all actions by or in respect of, and any filing with, any
governmental body, agency, official, or authority required to permit
the consummation of the purchase and sale of the Shares pursuant to
the exercise of the Option shall have been obtained or made and shall
be in full force and effect.
6. FURTHER ASSURANCES. From time to time, at any party's
request and without further consideration, each other party shall execute
and deliver such additional documents and take all such further action as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
7. OBLIGATIONS ATTACH TO SHARES. Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Shares and shall be binding upon any Person to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or
otherwise.
8. STOP TRANSFER. Stockholder agrees with, and covenants
to, Parent that Stockholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of Stockholder's Shares, unless such transfer is
made in compliance with the Offer or this Agreement. Stockholder agrees,
with respect to any Shares in certificated form, that Stockholder will
submit to the Company, within ten business days after the date hereof, the
certificates representing such Shares in order for the Company to inscribe
upon such certificates the following legend: "The shares of Common Stock,
par value $.0l per share, of BioWhittaker, Inc. (the "Company") represented
by this certificate are subject to a Stockholders Agreement dated as of
August 22, 1997, and may not be sold or otherwise transferred, except in
accordance therewith. Copies of such Agreement may be obtained at the
principal executive offices of the Company." Stockholder agrees that
within ten business days after the date hereof, Stockholder will no longer
hold any Shares, whether certificated or uncertificated, in "street name"
or in the name of any nominee.
9. TERMINATION. This Agreement shall terminate upon the
earlier of (a) twelve months from the date hereof or (b) the Effective
Time; PROVIDED, HOWEVER, that if the Company is not in breach of its
Exh. A-6
obligations under the Merger Agreement and Stockholder is not in breach of
its obligations under this Agreement, this Agreement shall terminate upon
termination of the Merger Agreement (a) pursuant to Section 6.1(a), 6.1(d),
6.1(f)(i) and 6.1(g) thereof, (b) pursuant to Section 6.1(b), 6.1(c) and
6.1(e) thereof (in each case if no proposal for an Acquisition Transaction
has been made), or (c) by the Company pursuant to Section 6.1(f)(ii)
thereof (unless a proposal for an Acquisition Transaction has been made).
The date of termination of this Agreement is referred to herein as the
"Termination Date".
10. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; ASSIGNMENT. This Agreement (I) constitutes
the entire agreement among the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter
hereof and (II) shall not be assigned by operation of law or otherwise
without the prior written consent of (A) in the case of an assignment by
Stockholder, Parent and (B) in the case of an assignment by Parent or
Purchaser, Stockholder, provided that Parent may in its sole discretion
assign its rights and obligations hereunder to any of its direct or
indirect wholly-owned subsidiaries.
(b) AMENDMENTS. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a
written agreement executed the parties hereto.
(c) NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given (and shall be deemed to
have been duly given upon receipt) by delivery in person, facsimile, telex
or other standard form of telecommunications, by courier service, or by
registered or certified mail, postage prepaid, return receipt requested,
addressed
If to Parent or Purchaser, to:
Cambrex Corporation
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
With a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
If to Stockholder, to:
Exh. A-7
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 Xxxxxx Versicherung Immobilien
D-55216 Ingelheim am Rhein
Federal Republic of Germany
Facsimile No.: 011-44-6132-77-3256
and:
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. XxXxxxxxx, Esq.
or to such other address or facsimile number as the Person to whom notice
is given shall have previously furnished to the others in writing in the
manner set forth above.
(d) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without
giving effect to the conflicts of laws principles thereof.
(e) ENFORCEMENT. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which when taken together shall constitute one and the same Agreement.
(g) DESCRIPTIVE HEADINGS. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
(h) SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to
be effective and valid under applicable law but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
Exh. A-8
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
(i) DEFINITIONS; CONSTRUCTION. For purposes of this Agreement:
(I) "beneficially own" or "beneficial ownership" with respect to
any securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Exchange
Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities
beneficially owned by a Person shall include securities beneficially
owned by all other Persons with whom such Person would constitute a
"group" as described in Section 13(d)(3) of the Exchange Act.
(IV) "Person" shall mean an individual, corporation,
partnership, limited liability company, joint venture, association,
trust, unincorporated organization or other entity.
(V) In the event of a stock dividend or distribution, or any
change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the
Shares as well as all such stock dividends and distributions and any
shares into which or for which any or all of the Shares may be changed
or exchanged.
(j) STOCK PURCHASE AGREEMENT. Stockholder acknowledges that its
rights under Section 8.01(c) of the Stock Purchase Agreement, dated
September 24, 1991, between the Company and Stockholder, to receive any
Compensation Amount (as defined in such agreement) will terminate and be of
no further force or effect from and after its sale of its Shares to the
Purchaser in the Offer, as contemplated in this Agreement.
Exh. A-9
IN WITNESS WHEREOF, Parent, Purchaser and Stockholder have caused
this Agreement to be duly executed as of the day and year first above
written.
CAMBREX CORPORATION
BY: ____________________
Name:
Title:
BW ACQUISITION CORPORATION
BY: ____________________
Name:
Title:
ANASCO GmbH
BY: ____________________
Name:
Title:
BY: ____________________
Name:
Title:
Exh. A-10
Schedule A
NAME NUMBER OF SHARES
ANASCO GmbH 2,097,043
D-55216 Ingelheim am Rhein
Federal Republic of Germany
Facsimile No.: 011-44-6132-77-4080
Exh. A-11
