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EXHIBIT 11
AMENDMENT NO. 1 TO
THE STOCKHOLDER PROTECTION RIGHTS AGREEMENT
DATED AS OF JANUARY 20, 1995
AMENDMENT NO. 1, dated as of August 22, 1997, to the STOCKHOLDER PROTECTION
RIGHTS AGREEMENT, dated as of January 20, 1995 (the "Rights Agreement"), between
BIOWHITTAKER, INC., a Delaware corporation (the "Company") and BankBoston, N.A.,
as Rights Agent (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved an Agreement
and Plan of Merger (the "Merger Agreement") by and among the Company, Cambrex
Corporation, a Delaware corporation ("Cambrex") and BW Acquisition Corporation,
a Delaware corporation ("BW"), providing for the acquisition, by BW, of the
outstanding shares of common stock, par value $0.01 per share ("Common Stock")
of the Company and the merger of BW into the Company (the "Merger"); and
WHEREAS, the willingness of Cambrex and BW to enter into the Merger
Agreement is conditioned, among other things, on the amendment of the Rights
Agreement so that the consummation of all or any of the transactions
contemplated by the Merger Agreement will not trigger the exercisability of the
Rights (as defined in the Rights Agreement) or the separation of the Rights from
the shares of Common Stock to which they are attached, or cause the Distribution
Date (as defined in the Rights Agreement) to occur; and
WHEREAS, Section 27 of the Rights Agreement provides, among other things,
that prior to the Distribution Date, subject to the restrictions and limitations
contained therein, the Company and the Rights Agent shall, if the Company so
directs, supplement or amend any provision of the Rights Agreement without the
approval of any holders of certificates representing shares of Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth in the Rights Agreement and in this Amendment, the parties hereby agree as
follows:
1. Section 1 of the Rights Agreement is hereby amended by the addition
thereto of the following definitions:
"BW" shall mean BW Acquisition Corporation, a Delaware corporation
that is a wholly owned subsidiary of Cambrex.
"Cambrex" shall mean Cambrex Corporation, a Delaware corporation.
"Merger" shall mean the merger of BW into the Company, as contemplated
by the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated
as of August 22, 1997, by and among Cambrex, the Company and BW, as the
same may be amended from time to time in accordance with the terms thereof.
2. The definition of "Acquiring Person" contained in Section 1 of the
Rights Agreement shall be amended by the addition to the end thereof of the
following:
Notwithstanding anything contained herein to the contrary, none of Cambrex,
BW or any affiliate or associate thereof shall be or become an "Acquiring
Person" as a result of (i) any announcement, commencement or consummation
of the tender offer contemplated by the Merger Agreement, (ii) the
execution of the Merger Agreement (or any amendment thereto in accordance
with the terms thereof) or the consummation of any of the transactions
contemplated thereby, or (iii) the execution of any lock-up, stockholder or
similar agreements, including, but not limited to, that certain
Stockholders Agreement dated as of August 22, 1997, by and among Cambrex,
BW and Anasco GmbH (the "Anasco Agreement") and that certain Stockholders
Agreement dated as of August 22, 1997, and by and among Cambrex, BW and
Xxxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X.
Xxxxxx, Xx.,
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and F. Xxxxxx Xxxxxxx, Xx. (the "Management Stockholders Agreement"), as
contemplated by, or in connection with, the Merger Agreement.
3. The definition of "Distribution Date" contained in Section 1 of the
Rights Agreement shall be amended by the addition to the end thereof of the
following:
Notwithstanding anything contained herein to the contrary, no Distribution
Date shall occur as a result of (i) any announcement, commencement or
consummation of the tender offer contemplated by the Merger Agreement, (ii)
the execution of the Merger Agreement (or any amendment thereto in
accordance with the terms thereof) or the consummation of any of the
transactions contemplated thereby, or (iii) the execution of any lock-up,
stockholder or similar agreements, including, but not limited to, the
Anasco Agreement and the Management Stockholders Agreement, as contemplated
by, or in connection with, the Merger Agreement, and no Distribution Date
will, in any event, occur prior to the Effective Time (as defined in the
Merger Agreement) of the Merger or the earlier termination of the Merger
Agreement.
4. The definition of "Expiration Date" contained in Section 1 of the Rights
Agreement shall be amended by the replacement of the word "earlier" with the
word "earliest", by the deletion of the word "and" and its replacement by a
comma immediately prior to the symbol "(b)" and by the addition to the end
thereof of the following:
and (c) the Effective Time (as defined in the Merger Agreement).
5. The definition of "Stock Acquisition Date" contained in Section 1 of the
Rights Agreement shall be amended by the addition to the end thereof of the
following:
Notwithstanding anything contained herein to the contrary, no Stock
Acquisition Date shall occur as a result of (i) any announcement,
commencement or consummation of the tender offer contemplated by the Merger
Agreement, (ii) the execution of the Merger Agreement (or any amendment
thereto in accordance with the terms thereof) or the consummation of any of
the transactions contemplated thereby, or (iii) the execution of any
lock-up, stockholder or similar agreements, including, but not limited to,
the Anasco Agreement and the Management Stockholders Agreement, as
contemplated by, or in connection with, the Merger Agreement.
6. Section 11 of the Rights Agreement shall be amended by the addition to
the end thereof of the following:
(q) Notwithstanding anything contained herein to the contrary, the
provisions of this Section 11 shall not apply to or be triggered by (i) any
announcement, commencement or consummation of the tender offer contemplated
by the Merger Agreement, (ii) the execution of the Merger Agreement (or any
amendment thereto in accordance with the terms thereof) or the consummation
of any of the transactions contemplated thereby, or (iii) the execution of
any lock-up, stockholder or similar agreements, including, but not limited
to, the Anasco Agreement and the Management Stockholders Agreement, as
contemplated by, or in connection with, the Merger Agreement, and no
Distribution Date will, in any event, occur prior to the Effective Time (as
defined in the Merger Agreement) of the Merger or the earlier termination
of the Merger Agreement.
7. Section 13 of the Rights Agreement shall be amended by the addition to
the end thereof of the following:
(d) Notwithstanding anything contained herein to the contrary, the
provisions of this Section 13 shall not apply to or be triggered by the
execution of the Merger Agreement (or any amendment thereto in accordance
with the terms thereof) or the consummation of any of the transactions
contemplated thereby.
8. The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Amendment No. 1.
9. Except as set forth herein, the Rights Agreement shall remain in full
force and effect and shall be otherwise unaffected hereby.
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10. This Amendment No. 1 may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed, as of the day and date first above written.
BIOWHITTAKER, INC.
By: /s/
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Xxxx X. Xxxxxxxxxx
President and Chief Executive
Officer
BANKBOSTON, N.A.
By: /s/
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Print Name:
Title:
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