1
EXHIBIT 11 (c)(1)
================================================================================
AGREEMENT AND PLAN OF MERGER
AMONG
CAMBREX CORPORATION
BW ACQUISITION CORPORATION
BIOWHITTAKER, INC.
Dated as of August 22, 1997
================================================================================
2
TABLE OF CONTENTS
Page
1. THE OFFER..........................................................2
2. THE MERGER.........................................................4
2.1 Merger......................................................4
2.2 Effect of Merger............................................5
2.3 Conversion of Shares........................................5
2.4 Stock Options...............................................5
2.5 Consummation of the Merger..................................6
2.6 Dissenters' Rights..........................................6
2.7 Payment for Shares and Options..............................7
2.8 Closing of the Company's Transfer Books.....................8
3. REPRESENTATIONS AND WARRANTIES.....................................9
3.1 Representations and Warranties of Parent and the Purchaser..9
3.2 Representations and Warranties of the Company..............11
4. COVENANTS.........................................................22
4.1 Acquisition Transactions...................................22
4.2 Interim Operations.........................................24
4.3 Access and Information.....................................26
4.4 Certain Filings, Consents and Arrangements.................26
4.5 Reasonable Best Efforts....................................26
4.6 Public Statements..........................................27
4.7 Stockholder Approval.......................................27
4.8 Stockholder Litigation.....................................29
4.9 Indemnification, Exculpation and Insurance.................29
4.10 Amendment of Rights Agreement..............................30
4.11 Borrowings under the Loan Agreement........................30
5. CONDITIONS........................................................30
5.1 Conditions to the Obligations of Parent, the Purchaser and
the Company ...............................................30
5.2 Conditions to the Obligations of Parent and the Purchaser..31
5.3 Conditions to the Obligations of the Company...............31
3
6. MISCELLANEOUS.....................................................32
6.1 Termination................................................32
6.2 Non-Survival of Representations, Warranties and Agreements.34
6.3 Amendment and Waiver.......................................34
6.4 Entire Agreement...........................................34
6.5 Definitions................................................35
6.6 Applicable Law.............................................35
6.7 Headings...................................................35
6.8 Notices....................................................35
6.9 Counterparts...............................................36
6.10 Severability...............................................36
6.11 Parties in Interest; Assignment............................37
6.12 Fees and Expenses..........................................37
6.13 Specific Performance.......................................38
Annex A Certain Conditions of the Offer
Exhibit A Persons Party to the Stockholder Agreement
Schedule 2.2 Offices of the Surviving Corporation
ii
4
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of August 22, 1997 by and among
Cambrex Corporation, a Delaware corporation ("Parent"), BW Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent (the
"Purchaser"), and BioWhittaker, Inc., a Delaware corporation (the "Company").
WHEREAS, the respective Boards of Directors of the Parent, the Purchaser
and the Company each has determined that it is fair to, and in the best
interests of, their respective stockholders for Parent to acquire the Company
pursuant to a merger (the "Merger") in which the Purchaser shall be merged with
and into the Company pursuant to this Agreement;
WHEREAS, as a condition of the willingness of the Parent to enter into
this Agreement, those Persons (as defined in Section 6.5) set forth on Exhibit A
hereto, as the holders of shares of the Company's Common Stock, par value $.01
per share (the "Common Stock"), have entered into two separate but substantially
identical Stockholder Agreements, each dated as of the date hereof
(collectively, the "Stockholder Agreement") with the Parent, which provide,
among other things, that, subject to the terms and conditions thereof, each such
Person will tender such Person's shares of Common Stock in the Offer (as defined
below) and vote such shares of Common Stock in favor of the Merger and the
approval and adoption of this Agreement;
WHEREAS, as a condition of the willingness of the Parent to enter into
this Agreement (i) the participants of the BioWhittaker, Inc. Supplemental
Executive Retirement Plan (the "SERP") have executed an agreement consenting to
the termination of the rabbi trust established under the SERP (the "Trust")
prior to the payment of any benefits under such Trust and the establishment of a
new rabbi trust which was funded prior to execution to this Agreement by the
Company with 120,344 shares of Common Stock, (ii) pursuant to that agreement,
the other 179,656 shares of Common Stock previously held by the Trust will be
returned to the Company and will be canceled and (iii) all other amounts accrued
or contributed to the Trust pursuant to Article V of the SERP will be
transferred to the new rabbi trust;
WHEREAS, in furtherance thereof, the Parent proposes that the Purchaser
make an offer to purchase for cash all of the issued and outstanding shares of
Common Stock of the Company, and all associated rights, at a price of $11.625
per share net to the seller;
5
WHEREAS, the Boards of Directors of the Parent, the Purchaser and the
Company have approved the Merger following the expiration of such offer, upon
the terms and subject to the conditions set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties agree as follows:
1. THE OFFER
1.1 The Offer. (a) As promptly as practicable, but in no event later
than five business days after the public announcement of the execution of this
Agreement, the Purchaser shall, and the Parent shall cause the Purchaser to,
commence a tender offer (the "Offer") to purchase for cash all of the issued and
outstanding shares of Common Stock (the "Shares"), together with the associated
rights, if any, to purchase Series A participating Cumulative Preferred Stock,
par value $.01 per share ("Series A Shares"; and together with the Shares, the
"Securities") at a price of not less than $11.625 per Security net to the seller
in cash; it being understood that the Offer will not apply to the 179,656 Shares
(or associated rights) previously held by the Trust which are being returned to
the Company and canceled as described in the third recital to this Agreement.
The obligations of the Purchaser and the Parent to consummate the Offer and to
accept for payment and purchase the Securities tendered shall be subject only to
the conditions set forth in Annex A hereto. The Purchaser shall not without the
Company's prior written consent reduce the price per Security or the number of
Securities sought to be purchased or modify the form of consideration to be
received by holders of the Securities in the Offer, increase the condition (the
"Minimum Condition") set forth in clause (i) of the first sentence of Annex A
hereto, impose additional conditions to the Offer or amend any term of the Offer
in a manner materially adverse to the holders of the Securities. Subject only to
the conditions of the Offer set forth in Annex A, the Purchaser shall, and the
Parent shall cause the Purchaser to, pay for all of the Securities validly
tendered and not withdrawn pursuant to the Offer as soon as legally permissible.
(b) As soon as practicable on the date the Offer is commenced, the
Parent and the Purchaser will file with the Securities and Exchange Commission
(the "Commission") a Tender Offer Statement on Schedule 14D-1 (together with
all supplements or amendments thereto, and including all exhibits, the "Offer
Documents"). The Parent and the Purchaser shall give the Company and its counsel
a reasonable opportunity to review the Offer Documents prior to the filing of
the Offer Documents with the Commission or to the dissemination of the Offer
Documents to the stockholders of the
2
6
Company. The Parent and the Purchaser will furnish the Company and its counsel
in writing with any comments that the Parent, the Purchaser or their counsel may
receive from the Commission or its staff with respect to the Offer Documents,
promptly after receipt of such comments.
1.2 Company Action. (a) In connection with the Offer, the Company shall
cause its transfer agent to furnish the Purchaser with mailing labels, security
position listings and any available listings or computer files containing the
names and addresses of record holders of the Shares as of a recent date, and
shall furnish to the Purchaser such information and assistance as the Parent or
the Purchaser may reasonably request in communicating the Offer to the Company's
stockholders. Except for such steps as are necessary to disseminate the Offer
Documents, Parent and the Purchaser shall hold in confidence the information
contained in such labels, listings and filings, will use such information only
in connection with the Offer and, if this Agreement is terminated, will, upon
the request of the Company deliver or cause to be delivered to the Company all
copies of such information then in its possession or in the possession of its
agents or representatives.
(b) The Company hereby consents to the Offer and represents that the
Board of Directors of the Company (at a meeting duly called and held at which a
quorum was present) as part of its approval of this Agreement has (i) approved
the making of the Offer, (ii) determined that each of the Offer and the Merger
is fair to and in the best interests of the stockholders of the Company and
(iii) resolved to recommend acceptance of the Offer and approval and adoption of
this Agreement by the stockholders of the Company (to the extent such approval
and adoption is required by applicable law). Promptly after the commencement of
the Offer, the Company shall file a Tender Offer Solicitation/Recommendation
Statement on Schedule 14D-9 (together with any amendments or supplements
thereto, and including all exhibits, the "Schedule 14D-9") with respect to the
Offer which shall contain the recommendations of the Board of Directors in favor
of the Offer, the Merger and the Agreement, except to the extent that the Board
of Directors of the Company shall have withdrawn or modified its approval of the
Offer, the Merger and this Agreement in accordance with Section 4.1(b).
1.3 Board of Directors. (a) Promptly upon the purchase by the Purchaser
of the Securities pursuant to the Offer and from time to time thereafter, the
Purchaser shall be entitled to designate up to the minimum number of directors
necessary in order for the result (expressed as a fraction) derived by dividing
the number of directors so designated by the total number of directors to be at
least equal to the result (expressed as a fraction) derived by dividing the
Shares then held by the Purchaser by the total number of Shares then
outstanding; provided, however, that until the Effective Time
3
7
(as defined in Section 2.5 hereof) the Board of Directors will have at least two
Independent Directors (as defined in Section 1.3(c) hereof). Upon request by the
Purchaser, the Company shall use its best efforts promptly, at the Company's
election, either to increase the size of the Board or to secure the resignation
of such number of directors as is necessary to enable the Purchaser's designees
to be elected to the Board, and to cause the Purchaser's designees to be so
elected.
(b) The Company's obligations with respect to the election of the
Purchaser's designees to the Board of Directors of the Company shall be subject
to Section 14(f) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Rule 14f-1 promulgated thereunder. The Company shall
promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in
order to fulfill its obligations under this Section 1.3 and shall include in the
Schedule 14D-9 such information with respect to the Company and its officers and
directors as is required under Section 14(f) and Rule 14f-1. The Parent and the
Purchaser will supply to the Company in writing and shall be solely responsible
for any information with respect to any of them and their nominees, officers,
directors and affiliates required by Section 14(f) and Rule 14f-1.
(c) Following the election or appointment of the Purchaser's designees
pursuant to this Section 1.3 and prior to the Effective Time, any amendment to
this Agreement or of the Certificate of Incorporation or By-Laws of the Company,
any termination of this Agreement by the Company, any extension by the Company
of the time for the performance of any of the obligations or other acts of the
Parent or the Purchaser and any waiver of any of the Company's rights under this
Agreement will require the concurrence of a majority of the directors of the
Company then in office who are (i) not designated by the Purchaser nor otherwise
affiliated with the Parent or the Purchaser, (ii) are not employees or the
Chairman of the Company or any of its subsidiaries and (iii) are not affiliated
with Anasco GmbH (the "Independent Directors").
2. THE MERGER
2.1 Merger. Upon the terms and subject to the conditions of this
Agreement, and in accordance with the applicable provisions of the Delaware
General Corporation Law ("DGCL"), as promptly as practicable following the
consummation of the Offer, the Purchaser shall be merged with and into the
Company. The Company shall be the surviving corporation in the Merger (sometimes
referred to as the "Surviving Corporation") and shall continue its existence
under the laws of the State of Delaware.
4
8
The separate existence of the Purchaser shall cease. The name of the Surviving
Corporation shall be "BioWhittaker, Inc."
2.2 Effect of Merger. The Certificate of Incorporation and the Bylaws of
the Company in effect upon consummation of the Merger shall be the Certificate
of Incorporation and Bylaws of the Surviving Corporation. The directors of the
Purchaser immediately prior to the Effective Time (as defined in Section 2.5)
shall be the directors of the Surviving Corporation, and the officers set forth
on Schedule 2.2 hereto shall be the officers of the Surviving Corporation, in
each case until their respective successors are duly elected and qualified. The
Merger shall have the effects set forth in Section 259 of the DGCL.
2.3 Conversion of Shares. Merger Consideration. At the Effective Time,
by virtue of the Merger and without any action on the part of any holder
thereof: (a) each Share, together with the associated right, if any, to purchase
Series A Shares or other securities of the Company pursuant to the Stockholder
Protection Rights Agreement dated January 20, 1995 between the Company and Bank
of Boston, as Rights Agent (the "Rights Agreement"), issued and outstanding
immediately prior to the Effective Time (other than Shares to be canceled
pursuant to clause (b) below and any Dissenting Shares (as defined in Section
2.6)) shall be converted into the right to receive in cash an amount per Share
equal to the Merger Consideration (as defined below), subject to any required
withholding of taxes and without interest; (b) each Share (together with all
associated Series A Shares) owned by Parent, the Purchaser or any other direct
or indirect subsidiary of Parent, or held in the treasury of the Company,
immediately prior to the Effective Time, shall be canceled and extinguished, and
no payment will be made with respect to those Shares; and (c) all shares of
common stock of the Purchaser, par value $.01 per share, then issued and
outstanding shall be converted into an equal number of shares of common stock of
the Surviving Corporation. "Merger Consideration" means (I) $138,948,952, or
such greater price divided by (II) the total number of Shares outstanding on a
fully diluted basis as of immediately prior to the Effective Time, assuming the
exercise of all outstanding Options (as defined below) and including all Shares
acquired by Parent or the Purchaser in the Offer.
2.4 Stock Options. Immediately prior to the Effective Time, each then
outstanding option to purchase Shares, whether or not then exercisable,
including any options granted under the 1994 Stock Option Plan for Non-Employee
Directors (collectively, the "Options"), shall be canceled by the Company in
exchange for a right to receive a payment in cash in accordance with Section
2.7(b) (the "Option Consideration") equal to the product of (i) the number of
Shares previously subject to the Option and (ii) the excess, if any, of the
Merger Consideration over the exercise price for each Share
5
9
under such Option. As of the Effective Time, each holder of an Option will be
entitled to receive only an amount equal to the Option Consideration. All
amounts payable under this Section 2.4 shall be subject to any required
withholding of taxes and shall be paid without interest. Effective as of the
Effective Time and subject to payment of the Option Consideration, the Company
shall cause each stock option or other equity based plan maintained with respect
to any Shares (or rights in respect thereof) (other than the BioWhittaker, Inc.
Savings and Stock Investment Plan (the "BSSIP") and the BioWhittaker, Inc.
Supplemental Executive Retirement Plan (the "SERP")) to be terminated.
2.5 Consummation of the Merger. Upon the terms and subject to the con-
ditions of this Agreement, the Company shall execute in the manner required by
the DGCL, and deliver to the Secretary of State of the State of Delaware, a duly
executed certificate of merger as required by the DGCL, and the parties shall
take all such other and further actions as may be required by law to make the
Merger effective. Prior to the filing referred to in this Section 2.5, a closing
will be held at the offices of Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, xx the third business day following the satisfaction of the condition
set forth in Section 5.1(c) hereof (or, in the event the Purchaser shall acquire
at least 90% of the outstanding Shares in the Offer, on the tenth business day
following the completion of the Offer) (or such other time as the Purchaser and
the Company may agree, immediately after the conditions set forth in Article V
have been satisfied or waived) for the purpose of confirming all of the
foregoing. The time the Merger becomes effective in accordance with applicable
law is referred to as the "Effective Time".
2.6 Dissenters' Rights. Notwithstanding any provision of this Agreement
to the contrary, any shares of capital stock of the Company outstanding
immediately prior to the Effective Time held by a holder who has demanded and
perfected the right, if any, for appraisal of those shares in accordance with
the provisions of Section 262 of the DGCL and as of the Effective Time has not
withdrawn or lost such right to such appraisal ("Dissenting Shares") shall not
be converted into or represent a right to receive the consideration set forth in
Section 2.3, but the holder shall only be entitled to such rights as are granted
by the DGCL. If a holder of shares of capital stock of the Company who demands
appraisal of those shares under the DGCL shall effectively withdraw or lose
(through failure to perfect or otherwise) the right to appraisal, then, as of
the Effective Time or the occurrence of such event, whichever last occurs, those
shares shall be converted into and represent only the right to receive the
consideration as provided in Section 2.3, without interest, upon the surrender
of the certificate or certificates representing those shares. The Company shall
give the Parent (i) prompt notice of any written demands for appraisal of any
shares of capital stock of the
6
10
Company, attempted withdrawals of such demands, and any other instruments served
pursuant to the DGCL received by the Company relating to stockholders' rights of
appraisal and (ii) the opportunity to direct all negotiations and proceedings
with respect to demands for appraisal under the DGCL. The Company shall not,
except with the prior written consent of Parent, voluntarily make any payment
with respect to any demands for appraisals of capital stock of the Company,
offer to settle or settle any such demands or approve any withdrawal of any such
demands.
2.7 Payment for Shares and Options. (a) Shares. Prior to the Effective
Time, the Purchaser shall designate a commercial bank or trust company organized
under the laws of the United States or any state of the United States with
capital, surplus and undivided profits of at least $500,000,000 to act as Paying
Agent with respect to the Merger (the "Paying Agent"). Each holder (other than
Parent, the Purchaser or any subsidiary of Parent) of a certificate or
certificates (the "Certificates") which immediately prior to the Effective Time
represented outstanding Shares will be entitled to receive, upon surrender to
the Paying Agent of the Certificates for cancellation, cash in an amount equal
to the product of the number of Shares previously represented by the
Certificates multiplied by the Merger Consideration, subject to any required
withholding of taxes. At or prior to the Effective Time, the Purchaser shall
make available to the Paying Agent sufficient funds to make all payments
pursuant to the preceding sentence. No interest shall accrue or be paid on the
cash payable upon the surrender of the Certificates. If payment is to be made to
a person other than the person in whose name the Certificates surrendered are
registered, it shall be a condition of payment that the Certificates so
surrendered shall be properly endorsed or otherwise in proper form for transfer
and that the person requesting the payment shall pay any transfer or other taxes
required by reason of the payment to a person other than the registered holder
of the Certificates surrendered or establish to the satisfaction of the
Surviving Corporation that the tax has been paid or is not applicable. Following
the Effective Time, until surrendered to the Paying Agent in accordance with the
provisions of this Section 2.7(a), each Certificate shall represent for all
purposes only the right to receive upon surrender thereof the Merger
Consideration multiplied by the number of Shares evidenced by the Certificate,
without any interest, subject to any required withholding taxes. Any funds
delivered or made available to the Paying Agent pursuant to this Section 2.7(a)
and not exchanged for Certificates within six months after the Effective Time
will be returned by the Paying Agent to the Surviving Corporation, which
thereafter will act as Paying Agent, subject to the rights of holders of
unsurrendered Certificates under this Section 2.7(a), and any former
stockholders of the Company who have not previously exchanged their Certificates
will thereafter be entitled to look only to the Surviving Corporation for
payment of their claim for the consideration set forth in Section 2.3, without
any interest, but will have no greater
7
11
rights against the Surviving Corporation than may be accorded to general
creditors thereof under applicable law. Notwithstanding the foregoing, neither
the Paying Agent nor any party hereto shall be liable to a holder of Shares for
any cash or interest delivered to a public official pursuant to applicable
abandoned property, escheat or similar laws. If any Certificates shall not have
been surrendered prior to three years after the Effective Time (or immediately
prior to such earlier date on which any payment in respect hereof would
otherwise escheat to or become the property of any governmental unit or agency),
the payment in respect of such Certificates shall, to the extent permitted by
applicable laws, become the property of the Surviving Corporation, free and
clear of all claims of interest of any person previously entitled thereto. As
soon as practicable after the Effective Time, the Surviving Corporation will
cause the Paying Agent to mail to each record holder of Certificates a form of
letter of transmittal (which will specify that delivery will be effected, and
risk of loss and title to the Certificates will pass, only upon proper delivery
of the Certificates to the Paying Agent) and instructions for use in effecting
the surrender of the Certificates for payment.
(b) Options. Each holder of an Option, whether or not then exercisable,
will be entitled to receive cash in an amount equal to the Option Consideration
in respect of such Options (determined in accordance with Section 2.4 hereof),
subject to any required withholding taxes and without interest. As soon as
practicable after the Effective Time, and in any event no more than fifteen (15)
calendar days following the Effective Time, the Surviving Corporation shall
instruct the Paying Agent to pay, and the Paying Agent shall so pay, all amounts
due as Option Consideration to holders of Options as required by this Agreement.
2.8 Closing of the Company's Transfer Books. At the Effective Time, the
stock transfer books of the Company shall be closed and no transfer of Shares
converted into the right to receive the Merger Consideration pursuant to the
terms hereof, Dissenting Shares or Shares to be canceled pursuant to Section 2.3
hereof shall thereafter be made. If, after the Effective Time, Certificates for
such Shares are presented to the Surviving Corporation, they shall be canceled
and exchanged for cash or merely canceled, as the case may be, pursuant to and
in accordance with Sections 2.3, 2.6 and 2.7 hereof, subject to applicable law
in the case of Dissenting Shares.
8
12
3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Parent and the Purchaser. The
Parent and the Purchaser represent and warrant to the Company that:
(a) Corporate Organization. Each of the Parent and the Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power to carry
on its business as it is now being conducted; provided, however, that since
it was incorporated, the Purchaser has not engaged in any business other
than organizational matters and matters relating to the Offer and this
Agreement. Parent owns all of the issued and outstanding capital stock of
the Purchaser and all such stock has been validly issued and is fully paid
and nonassessable and is owned by the Parent free and clear of all pledges,
claims, liens, charges, encumbrances and security interests of any kind or
nature whatsoever (collectively, "Liens"). Each of Parent and the Purchaser
is qualified to do business and is in good standing in each jurisdiction in
which the properties owned, leased or operated by it or the nature of the
business conducted by it makes such qualification necessary, except where
the failure to be so qualified and in good standing would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect on Parent. "Material Adverse Effect" means, with respect to any
person or entity, a material adverse effect on the business, assets,
liabilities, operations or condition (financial or otherwise) of such person
or entity and its subsidiaries, taken as a whole. True, accurate and
complete copies of the Parent's and the Purchaser's Certificates of
Incorporation and Bylaws, in each case as in effect on the date hereof,
including all amendments thereto, have heretofore been made available to the
Company.
(b) Authority. Each of Parent and the Purchaser has the requisite
corporate power and authority to execute and deliver this Agreement and to
carry out their respective obligations pursuant hereto. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate or
other action on the part of each of Parent and the Purchaser. This Agreement
has been duly executed by Parent and the Purchaser and, assuming due
authorization, execution and delivery by the Company, constitutes a valid
and binding obligation of each of them, enforceable against each of them in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally or by general principles of
equity. No other corporate actions or proceedings on the part of Parent or
the Purchaser are necessary to authorize this Agreement, the consummation,
by either of them, of
9
13
the transactions contemplated hereby or the discharge, by either of them, of
their respective obligations pursuant hereto.
(c) Consents; No Violation. None of the execution and delivery of this
Agreement by Parent or the Purchaser, the consummation by each of them of
the transactions contemplated by this Agreement or the discharge, by either
of them, of its respective obligations hereunder will (i) conflict with, or
result in any breach or violation of, any provision of the Parent's or the
Purchaser's Certificate of Incorporation or By-laws; (ii) constitute, with
or without notice, the passage of time or both, a breach, violation or
default, create a lien, or give rise to any right of termination,
modification, cancellation, prepayment, acceleration or loss of material
benefit under any law, order, judgment, writ, injunction, decree, statute,
rule or regulation, governmental permit or license (collectively "Laws"), or
any mortgage, indenture, lease, license, agreement or other instrument of
Parent, the Purchaser or any of their respective subsidiaries, or to which
Parent, the Purchaser or any of their respective subsidiaries or any of
their respective properties is subject, except for breaches, violations,
defaults, liens, or rights of termination, modification, cancellation,
prepayment or acceleration which would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect on
Parent or materially adversely affect the ability of Parent or the Purchaser
to consummate the transactions contemplated hereby; or (iii) require any
consent, approval or authorization of, notification to, or filing with, any
court, govern mental agency or regulatory or administrative authority,
foreign or domestic (each, a "Governmental Entity") or any third party, on
the part of Parent or the Purchaser, other than (w) the filing of a
certificate of merger with respect to the Merger in accordance with the
DGCL, (x) any applicable filings under federal or state securities, "Blue
Sky" or state anti-takeover laws, (y) filings required pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and (z) consents, approvals, authorizations, notifications or
filings the failure of which to be obtained or made would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect on the Parent or materially adversely affect the ability of the
Parent or the Purchaser to consummate the transactions contemplated hereby.
(d) Offer Documents; Schedule 14D-9. None of the Offer Documents will,
on the date filed with the Commission or on the date first published, sent
or given to the Company's stockholders, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that the foregoing shall not apply to the
10
14
extent that any such untrue statement of a material fact or omission to
state a material fact was made by the Parent or the Purchaser in reliance
upon and in conformity with written information furnished to the Parent or
the Purchaser by the Company specifically for use in the Offer Documents.
The Offer Documents will comply in all material respects, both as to form
and otherwise, with the requirements of the Exchange Act and the rules and
regulations thereunder. None of the information supplied or to be supplied
in writing by the Parent or the Purchaser specifically for inclusion in the
Schedule 14D-9 will, at the time the Schedule 14D-9 is filed with the
Commission, contain any untrue statement of a material fact, or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(e) Financing. Parent and the Purchaser, collectively, have sufficient
funds available to pay the aggregate Merger Consideration and Option
Consideration contemplated by this Agreement and to pay all of its fees and
expenses related to the transactions contemplated hereby.
(f) No Other Representations or Warranties. Except for the
representations and warranties contained in this Section 3.1, none of
Parent, the Purchaser or any other Person makes any other express or implied
representation or warranty on behalf of Parent, the Purchaser or any of
their respective affiliates.
3.2 Representations and Warranties of the Company. The Company repre-
sents and warrants to Parent and the Purchaser that:
(a) Corporate Organization. Each of the Company and each of its sub-
sidiaries is a corporation duly organized, validly existing and, except as
otherwise indicated on the Disclosure Schedule, is in good standing under
the laws of the jurisdiction in which it is incorporated and has the
requisite corporate power to own, lease and operate its properties and
assets and to carry on its businesses as they are now being conducted. The
Company has delivered to Parent copies of the Certificates of Incorporation
and By-laws, as amended to this date, of the Company and each of its
subsidiaries, which Certificates and By-laws are in full force and effect.
(b) Capitalization. The authorized capital stock of the Company consists
of 40,000,000 Shares, and 5,000,000 shares of Preferred Stock, par value
$.01 per share, of which 150,000 shares have been designated Series A
Participating Cumulative Preferred Stock. As of the date hereof (and
assuming the return and
11
15
cancellation of the 179,656 Shares previously held by the Trust, as
described in the third recital to this Agreement), (i) 10,881,210 Shares are
issued and outstanding, all of which are validly issued, fully paid and
nonassessable and not subject to preemptive rights except as described on
the Disclosure Schedule delivered by the Company to Parent on the date
hereof (the "Disclosure Schedule"); (ii) 179,656 Shares are held in the
treasury of the Company as treasury stock; (iii) there are outstanding
Options to purchase an aggregate of 1,071,388 Shares; and (iv) there are no
outstanding Series A Shares. Except as set forth on the Disclosure Schedule,
there are no stock appreciation rights outstanding. The Disclosure Schedule
sets forth a list, complete and correct as of the date hereof, of the
holders of all Options and the number of Shares issuable upon the exercise
of each such Option and the exercise prices thereof. There are no bonds,
debentures, notes or other indebtedness of the Company having the right to
vote (or convertible into, or exchangeable for, securities having the right
to vote) on any matters on which stockholders of the Company may vote.
Except as set forth in this Section 3.2(b) or on the Disclosure Schedule, no
shares of capital stock or other voting securities are issued, reserved for
issuance or outstanding, nor are there any outstanding subscriptions,
options, warrants, rights, convertible securities or other agreements or
commitments of any character relating to the issued or unissued capital
stock or other securities of the Company or any of its subsidiaries
obligating the Company or any of its subsidiaries to issue, deliver, sell or
purchase, or cause to be issued, delivered, sold or purchased, any
securities of the Company or any of its subsidiaries. Except as set forth
on the Disclosure Schedule, there are no voting trusts or other agreements
or understandings to which the Company or any of its subsidiaries is a party
with respect to the voting of capital stock of the Company or any of its
subsidiaries.
(c) Subsidiaries. The Disclosure Schedule sets forth a list, true and
complete as of the date hereof, of all of the subsidiaries of the Company.
All of the out standing shares of capital stock of each subsidiary of the
Company have been validly issued and are fully paid and nonassessable and
are owned by the Company or by a subsidiary of the Company are free and
clear of any Liens. Except for the capital stock of its subsidiaries or as
set forth on the Disclosure Schedule, as of the date hereof, the Company
does not own, directly or indirectly, any capital stock or other ownership
interest in any corporation, limited liability company, partnership, joint
venture or other entity.
(d) Authority. The Company has the requisite corporate power and
authority to execute and deliver this Agreement and to carry out its
obligations pursuant hereto. The execution and delivery of this Agreement
and the consummation of
12
16
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company, subject only, to the
extent required by law, to approval by the stockholders of the Company as
provided in Section 4.7 or as set forth on the Disclosure Schedule. This
Agreement has been duly executed and delivered by, and, assuming due
authorization, execution and delivery by Parent and the Purchaser,
constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as may be limited
by bankruptcy, insolvency, moratorium or other similar laws affecting or
relating to the enforcement of creditors' rights generally or by general
principles of equity. Except as set forth on the Disclosure Schedule and for
the approval by the stockholders of the Company as provided in Section 4.7,
no other corporate actions or proceedings on the part of the Company or its
stockholders are necessary to authorize this Agreement, the Offer, the
Merger or the consummation of the transactions contemplated hereby or its
discharge of its obligations pursuant hereto.
(e) Consents; No Violation. None of the execution and delivery of this
Agreement by the Company, the consummation of the transactions contemplated
hereby or the discharge of its obligations hereunder will, except as set
forth on the Disclosure Schedule (i) conflict with, or result in a breach or
a violation of, any provision of the Certificate of Incorporation or By-laws
of the Company or any of its subsidiaries; (ii) constitute, with or without
notice, the passage of time or both, a breach, violation or default, create
a Lien, or give rise to any right of termination, modification,
cancellation, prepayment, acceleration or the loss of any material benefit
under any Laws or any mortgage, indenture, lease, license, agreement or
other instrument of the Company or any of its subsidiaries, or to which the
Company or any of its subsidiaries or any of their respective properties is
subject, except for breaches, violations, defaults, liens, or rights of
termination, modification, cancellation, prepayment or acceleration which
would not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect on the Company or materially adversely affect the
ability of the Company to consummate the transactions contemplated hereby;
or (iii) require any consent, approval or authorization of, notification to,
or filing with, any Governmental Entity or from any other third parties, on
the part of the Company or any of its subsidiaries other than (v) required
consents identified on the Disclosure Schedule, (w) the filing of a
certificate of merger with respect to the Merger in accordance with the
DGCL, (x) filings required under the HSR Act, (y) any applicable filings
under federal and state securities laws or state anti-takeover laws, and (z)
consents, approvals, authorizations, notifications or filings the failure of
which to be obtained or made would not reasonably be expected, individually
or in the aggregate, to have a
13
17
Material Adverse Effect on the Company or materially adversely effect the
ability of the Company to consummate the transactions contemplated hereby.
(f) SEC Reports; Company Assets and Liabilities. The Company has filed
all forms, reports, statements and schedules with the Commission required to
be filed pursuant to the Exchange Act, and the Commission Rules, since
January 1, 1995 (the "SEC Reports"). As of their respective filing dates,
the SEC Reports complied in all material respects with all applicable
requirements of the Exchange Act and the Commission Rules applicable to such
SEC Reports, and did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements made therein, in light of the circumstances
under which they were made, not misleading. The audited and unaudited
consolidated financial statements of the Company included (or incorporated
by reference) in the SEC Reports comply as to form in all material respects
with applicable accounting requirements and the published rules and
regulations of the Commission with respect thereto, have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis (except as stated in the financial statements, including
the related notes, and except that the quarterly financial statements do not
contain all of the footnote disclosures required by generally accepted
accounting principles) and fairly present, in all material respects, the
financial position of the Company and its consolidated subsidiaries as of
the respective dates thereof and the results of their operations,
stockholders' equity and cash flows for the periods then ended, subject, in
the case of the unaudited financial statements, to normal year-end
adjustments and any other adjustments described therein. Except for
liabilities and obligations incurred in the ordinary course of business
consistent with past practices since the date of the most recent
consolidated balance sheet included in the SEC Reports, neither the Company
nor any of its subsidiaries has incurred any material liabilities or
obligations of any nature (whether accrued, absolute, contingent or
otherwise) other than those reflected in the SEC Reports and on the
Disclosure Schedule and those incurred in connection with the transactions
contemplated hereby.
(g) No Material Adverse Change. Except as and to the extent disclosed in
the SEC Reports or as set forth in the Disclosure Schedule, since October
31, 1996, there has not been (i) any material adverse change in the
business, operations or condition (financial or other) of the Company and
its subsidiaries taken as a whole, (ii) any declaration, setting aside or
payment of any dividend or other distribution (whether in cash, stock or
property) with respect to any of the Company's capital stock, (iii) any
split, combination or reclassification of any of the Company's capital stock
or any issuance or the authorization of the issuance of any securities
14
18
in respect of or in substitution for shares of its capital stock, (iv) any
granting by the Company (x) to any executive officer or other key employee
of the Company of any increase in compensation, except for normal increases
in the ordinary course of business consistent with past practice or as
required under employment agreements in effect as of the date of the most
recent SEC Reports or set forth in the Disclosure Schedule or (y) to any
such executive officer of any increase in severance or termination pay,
except as was required under any employment, severance or termination
agreements in effect as of the date of the most recent SEC Reports or set
forth in the Disclosure Schedule, (v) any damage, destruction or loss,
whether or not covered by insurance, that could reasonably be expected to
have a Material Adverse Effect or (vi) except as may have been required by a
change in generally accepted accounting principles or as disclosed in the
SEC Reports, any change in accounting methods, principles or practices by
the Company or any of its subsidiaries materially affecting its assets,
liabilities or business.
(h) Offer Documents; Schedule 14D-9. None of the information supplied in
writing by the Company specifically for inclusion in the Offer Documents
will, at the respective times the Offer Documents or any amendments or
supplements thereto are filed with the Commission, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
Schedule 14D-9 on the date filed with the Commission will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing shall not apply to the
extent that any such untrue statement of a material fact or omission to
state a material fact was made by the Company in reliance upon and in
conformity with written information furnished to the Company by the Parent
or the Purchaser specifically for use in the Schedule 14D-9. The Schedule
14D-9 will comply in all material respects, both as to form and otherwise,
with the requirements of the Exchange Act and the rules and regulations
thereunder.
(i) Litigation. Except as disclosed in the SEC Reports or on the
Disclosure Schedule, there is no suit, action or proceeding pending or, to
the knowledge of the Company, threatened against or affecting the Company or
any of its subsidiaries that individually or in the aggregate would
reasonably be expected (i) to have a Material Adverse Effect on the Company,
(ii) as of the date hereof, to impair the ability of the Company to perform
its obligations under this Agreement in any material respect or (iii) as of
the date hereof, to delay in any material respect or
15
19
prevent the consummation of any of the transactions contemplated by this
Agreement, nor is there any judgment, decree, injunction, rule or order of
any Governmental Entity or arbitrator outstanding against the Company or
any of its subsidiaries having, or which would reasonably be expected to
have a Material Adverse Effect on the Company.
(j) Fees. Except as set forth on the Disclosure Schedule, neither the
Company nor any of its subsidiaries has paid or become obligated to pay any
fee or commission to any broker, finder or intermediary or other similar
Person in connection with the transactions contemplated hereby or in
connection with any other offer to acquire the Company's shares or assets.
(k) Certificate and By-laws. Neither the Certificate of Incorporation
nor the By-laws of the Company contains any provision that would require a
vote of the Company's stockholders in excess of a majority of the
outstanding shares of Company Common Stock in order to approve the Merger in
accordance with the terms of this Agreement.
(l) State Takeover Statutes. The Board of Directors of the Company has
approved the terms of this Agreement and the Stockholder Agreement and the
consummation of the Merger and the other transactions contemplated by this
Agreement and the Stockholder Agreement, and such approval is sufficient to
render inapplicable to the Merger and the other transactions contemplated by
this Agreement and the Stockholder Agreement the provisions of Section 203
of the DGCL. To the Company's knowledge, no state takeover statute or
similar statute or regulation applies or purports to apply to the Merger,
this Agreement or any of the transactions contemplated by this Agreement,
and except for the Rights Agreement and related Series A Shares, no
provision of the Certificate of Incorporation, By-laws or other governing
instruments of the Company or any of its subsidiaries would, directly or
indirectly, restrict or impair the ability of Parent to vote, or otherwise
to exercise the rights of a stockholder with respect to, shares of the
capital stock of Company and its subsidiaries that may be acquired or
controlled by Parent.
(m) Employee Benefit Plans: Employee Agreements. The Disclosure Schedule
sets forth a true and complete list of each employee benefit plan within the
meaning set forth in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") and each bonus, incentive, deferred
compensation, severance, termination, retention, change of control, stock
option or other equity-based performance or other compensation plan,
program, arrangement,
16
20
policy or understanding, whether written or unwritten, that is maintained by
the Company or any other Person that, together with the Company, is treated
as a single employer under Section 414 of the Internal Revenue Code of 1986,
as amended (the "Code") (each a "Commonly Controlled Entity"), or to which
the Company or any Commonly Controlled Entity contributes or is obligated or
required to contribute or with regard to which the Company or any of its
Commonly Controlled Entities has knowledge of any event, transaction or
condition that would reasonably be expected to result in any material
liability at the Effective Time (collectively, the "Plans"). Each employment
agreement to which the Company or any of its subsidiaries is a party, and
each employee benefit plan adopted by the Company or any of its
subsidiaries, which in either case becomes effective or grants rights to any
person upon a "change of control" of the Company is set forth in the
Disclosure Schedule. True and complete copies of each such Plan and the most
recent annual report on Form 5500 for each such Plan have been delivered to
the Purchaser.
Each Plan intended to be qualified under Section 401(a) of the Code and
the trust forming a part thereof has received a favorable determination
letter from the Internal Revenue Service (the "IRS") as to its qualification
under the Code and to the effect that each such trust is exempt from
taxation under Section 501(a) of the Code and the Company knows of no event
that has occurred since the date of such determination that would reasonably
be expected to adversely affect such qualification or tax-exempt status.
Except as set forth in the Disclosure Schedule, no material liability
has been or, to the knowledge of the Company, is expected to be incurred by
the Company or any Commonly Controlled Entity (either directly or
indirectly, including as a result of an indemnification obligation or any
joint and several liability obligations) as the result of a violation of
Title I of ERISA or an "accumulated funding deficiency" as defined in
Section 412 of the Code or Section 302 of ERISA or under or pursuant to
Title IV of ERISA or the penalty or excise tax provisions of Chapter 43 of
Subtitle D of the Code relating to employee benefit plans, and the Company
knows of no event, transaction or condition that has occurred or exists with
respect to the Company's employee benefit plans that would reasonably be
expected to result in any such material liability to the Purchaser, the
Surviving Corporation or any Commonly Controlled Entity or any employee
benefit plan of the Surviving Corporation or any Commonly Controlled Entity.
Except as otherwise set forth in the Disclosure Schedules, no benefit
that is payable, or which may become payable as a result of the transactions
contemplated
17
21
hereunder, to any employee pursuant to any Plan shall constitute an "excess
parachute payment" (as defined in Section 280G(b)(1) of the Code) which is
subject to the imposition of an excise tax under Section 4999 of the Code or
which would not be deductible by reason of Section 280G of the Code.
(n) Compliance with Applicable Laws. Except as disclosed in the SEC
Reports, the Company and each of its subsidiaries has in effect all Federal,
state and local governmental approvals, authorizations, certificates,
filings, franchises, licenses, notices, permits and rights ("Permits")
necessary for it to own, lease or operate its properties and assets and to
carry on its business as now conducted, and there has occurred no default
under any such Permit, except for the lack of Permits and for defaults under
Permits which lack of, or default under, individually or in the aggregate
would not have a Material Adverse Effect on the Company. Except as disclosed
in the SEC Reports, the Company and its subsidiaries are in compliance with
all applicable statutes, laws, ordinances, rules, orders and regulations of
any Governmental Entity, except for possible noncompliance which,
individually or in the aggregate, would not have a Material Adverse Effect
on the Company.
(o) Contracts; Debt Instruments. Except as set forth on the Disclosure
Schedules, (i) neither the Company nor any of its subsidiaries is in
violation of or in default under (nor to the knowledge of the Company does
there exist any condition which upon the passage of time, the giving of
notice or both would cause such a violation of or default under) any loan or
credit agreement, note, bond, mortgage, indenture, lease, permit,
concession, franchise, license or any other contract, agreement, arrangement
or understanding to which it is a party or by which it or any of its
properties or assets is bound, except for violations or defaults that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on the Company.
(ii) The Company has made available to Parent (x) true and correct
copies of all loan or credit agreements, notes, bonds, mortgages, indentures
and other agreements and instruments pursuant to which any indebtedness of
the Company or any of its subsidiaries in an aggregate principal amount in
excess of $500,000 is outstanding or may be incurred and (y) accurate
information regarding the respective principal amounts currently outstanding
thereunder. For purposes of this Agreement, "indebtedness" shall mean, with
respect to any Person, without duplication, (A) all obligations of such
Person for borrowed money, or with respect to deposits or advances of any
kind to such Person, (B) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (C) all obligations of
18
22
such Person under conditional sale or other title retention agreements
relating to property purchased by such Person, (D) all obligations of such
Person issued or assumed as the deferred purchase price of property or
services (excluding obligations of such Person to creditors for raw
materials, inventory, services and supplies incurred in the ordinary course
of such Person's business), (E) all capitalized lease obligations of such
Person, (F) all obligations of others secured by any Lien on property or
assets owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (G) all obligations of such Person under
interest rate or currency hedging transactions (valued at the termination
value thereof), (H) all letters of credit issued for the account of such
Person and (I) all guarantees and arrangements having the economic effect of
a guarantee of such Person of any indebtedness of any other person.
(p) Taxes and Tax Returns. Except as set forth in the SEC Reports or on
the Disclosure Schedule: (i) all material tax returns, declarations,
reports, estimates, information returns and statements required to be filed
with respect to Taxes (as defined herein) under Federal, state, local or
foreign laws ("Returns") by or with respect to the Company or any subsidiary
of the Company have been timely filed (taking into account any extensions of
time for filing such Returns); (ii) at the time filed, such Returns were
true, correct and complete in all material respects; (iii) the Company and
each subsidiary of the Company has timely paid or made provision in
accordance with generally accepted accounting principles (or there has been
paid or provision has been made on its behalf) for all material Taxes for
all periods or portions thereof through the date hereof; (iv) there are no
material liens for Taxes upon the assets of the Company or any subsidiary of
the Company which are not provided for in the most recent financial
statements included in the SEC Reports, except liens for Taxes not yet due;
(v) there are no material outstanding deficiencies for any Taxes proposed,
asserted or assessed against the Company or any subsidiary of the Company
which are not provided for in the most recent financial statements included
in the SEC Reports; (vi) there are no material Federal, state, local or
foreign audits or other administrative proceedings or judicial proceedings
presently pending with regard to any Taxes or Returns required to be filed
by or with respect to the Company or any of its subsidiaries; (vii) the
Company has filed a consolidated Return for Federal income tax purposes on
behalf of itself and all of its domestic subsidiaries as the common parent
corporation of an "affiliated group" (within the meaning of Section 1504(a)
of the Code) of which such subsidiaries are "includible corporations" in
such affiliated group within the meaning of Section 1504(b) of the Code;
(viii) the Internal Revenue Service has completed examinations of the
Federal income tax returns filed by or with respect to the Company (or the
statute of limitations for the assessment of Federal income taxes for such
period
19
23
has expired) for all periods through and including the Company's taxable
year ended October 31, 1994; (ix) none of the Company or any of its
subsidiaries has been a member of an "affiliated group" (as defined above),
or any similar affiliated, combined or consolidated group for state, local
or foreign tax purposes (other than a group the common parent of which is
the Company), or has any liability for the Taxes of any person (other than
the Company or its current subsidiaries) under Treasury Regulation Section
1.1502-6 or any similar provision of state, local or foreign law or as a
transferee, successor, by contract or otherwise; (x) the Company has not
(A) breached any covenant or representation contained in the Tax Agreement
between the Company and Xxxxxxxxx Corporation, dated as of September 24,
1991, or the amendment thereto dated October 23, 1991 (collectively, the
"Tax Agreement") or (B) entered into any of the transactions described in
Section 2(c)(ii)(y) of the Tax Agreement and (xi) except as set forth in the
Disclosure Schedule, neither the Company nor any of its subsidiaries is a
party to any material tax sharing, tax indemnity or other agreement or
arrangement with respect to Taxes with any entity not included in the
Company's most recent financial statements included in the SEC Reports. For
purposes of this Agreement, "Taxes" means all income, gross income, gross
receipts, premium, sales, use, transfer, franchise, profits, withholding,
payroll, employment, excise, severance, property and windfall profits
taxes, and all other taxes, assessments or similar charges of any kind
whatsoever thereon or applicable thereto, together with any interest and any
penalties, additions to tax or additional amounts, in each case imposed by
any taxing authority (domestic or foreign) upon the Company or any
subsidiary of the Company, including, without limitation, all amounts
imposed as a result of being a member of any affiliated or combined group.
(q) Labor Matters. Neither the Company nor any of its subsidiaries is
the subject of any suit, action or proceeding which is pending or, to the
knowledge of the Company, threatened, asserting that the Company or any of
its subsidiaries has committed an unfair labor practice (within the meaning
of the National Labor Relations Act or applicable state statutes) or seeking
to compel the Company or any of its subsidiaries to bargain with any labor
organization as to wages and conditions of employment, in any such case,
that would reasonably expected to have a Material Adverse Effect on the
Company. No strike or other labor dispute involving the Company or any of
its subsidiaries is pending or, to the knowledge of the Company, threatened,
and, to the knowledge of the Company, there is no activity involving any
employees of the company or any of its subsidiaries seeking to certify a
collective bargaining unit or engaging in any other organizational activity,
except for any such dispute or activity which would not reasonably be
expected to have a Material Adverse Effect on the Company.
20
24
(r) Environmental Matters. (i) Except as set forth on the Disclosure
Schedule or in the SEC Reports, the Company's and each of its subsidiaries'
operation and use of its respective assets, including its owned and leased
real property, are in compliance in all respects with all applicable Laws
relating to the protection of human health or the environment
("Environmental Laws"), except to the extent that any such noncompliance
would not have a Material Adverse Effect on the Company. The Company and
each of its subsidiaries has obtained all environmental, health and safety
permits necessary for the operation of its respective business as presently
conducted, and all such permits are in full force and effect and the Company
and each of its subsidiaries is in compliance in all respects with the terms
and conditions of each such permit, except, in each case, to the extent that
any failure to obtain a permit or any such noncompliance would not have a
Material Adverse Effect on the Company. Except as set forth on the
Disclosure Schedule, neither the Company nor any of its subsidiaries has
received any notice of, and, to the knowledge of the Company there is not,
any administrative or judicial investigation, proceeding or action with
respect to any material violation, alleged or proven, of Environmental Laws
by the Company or any its subsidiaries or otherwise involving their
respective owned or leased real property.
(ii) Except as set forth on the Disclosure Schedule, to the knowledge of
the Company, neither the Company nor any of its subsidiaries has taken or
failed to take any action that has resulted in or will result in any
liability or obligation relating to (x) the environmental conditions on,
under, or about the assets of the Company or any of its subsidiaries or any
of their respective owned or leased real property, or any properties owned,
leased, operated or used by the Company or any of its subsidiaries or any
predecessor of the Company or any of its subsidiaries at the present time or
in the past, including, without limitation, the air, soil and groundwater
conditions at such properties or (y) the past or present use, management,
handling, transport, treatment, generation, storage, disposal or release of
any Hazardous Substances (as defined in Section 6.5), except in the case of
clauses (x) and (y) above, to the extent such liability or obligation would
not have a Material Adverse Effect.
(s) Rights Agreement. The Board of Directors of the Company (at a
meeting duly called and held at which a quorum was present) as part of its
approval of this Agreement has resolved to amend (and the Company has caused
such amendments to become effective prior to the execution of this Agreement
and the Stockholder Agreement) the Rights Agreement so that (i) neither the
Parent, the Purchaser nor any of their respective affiliates shall
constitute an Acquiring Person for any purpose of the Rights Agreement and
(ii) neither the execution or delivery of this
21
25
Agreement or the Stockholders Agreement, nor the consummation of any or all
of the transactions contemplated by this Agreement or the Stockholders
Agreement, will trigger the exercisability of the Rights (as defined in the
Rights Agreement) or the separation of the Rights from the shares to which
they are attached, or cause the Distribution Date (as defined in the Rights
Agreement) to occur.
(t) Effectiveness of Waiver. The Company has waived the Company's rights
under the Stock Purchase Agreement, dated as of September 24, 1991, between
the Company and Anasco GmbH (the "Anasco Stock Purchase Agreement") so that
Anasco GmbH's execution or delivery of the Stockholders Agreement and its
consummation of the transactions contemplated by the Stockholders Agreement,
will not violate or breach any provision in the Anasco Stock Purchase
Agreement.
(u) Opinion of the Company's Financial Advisor. The Board of Directors
of the Company has received a written opinion from Alex. Xxxxx & Sons
Incorporated ("Xxxx Xxxxx") to the effect that, as of the date of this
Agreement, the consideration to be received in the Offer and the Merger by
the holders of Shares (other than Parent and its affiliates) is fair from a
financial point of view to such holders of Shares.
(v) No Other Representations or Warranties. Except for the
representations and warranties contained in this Section 3.2, neither the
Company nor any other Person makes any other express or implied
representation or warranty on behalf of the Company or any of its
affiliates.
4. COVENANTS
4.1 Acquisition Transactions. (a) After the date hereof and prior to the
Effective Time or earlier termination of this Agreement, unless Parent shall
otherwise agree in writing, the Company shall not, shall not permit any of its
subsidiaries to, and shall not authorize or permit any officer, director or
employee or any investment banker, attorney, accountant or other advisor or
representative of the Company or any of its subsidiaries to, directly or
indirectly, except as otherwise expressly permitted in this Section 4.1(a) or in
Section 4.1(b), (i) initiate, solicit, negotiate, encourage, or provide
confidential information to facilitate any proposal or offer to acquire all or
any substantial part of the business and properties of the Company and its
subsidiaries, taken as a whole, or beneficial ownership (as determined pursuant
to Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the capital
stock of the Company, whether by merger, purchase of assets, tender offer or
otherwise, whether
22
26
for cash, securities or any other consideration or combination thereof (such
transactions being referred to herein as "Acquisition Transactions"), (ii) enter
into any agreement with respect to any Acquisition Transaction or give any
approval of the type referred to in Section 4.1(b) with respect to any
Acquisition Transaction or (iii) participate in any discussions regarding, or
take any other action to facilitate any inquiries or the making of any proposal
that constitutes or may reasonably be expected to lead to any Acquisition
Transaction. Notwithstanding the immediately preceding sentence, the Company and
its subsidiaries may, prior to the Company Stockholder Approval, in response to
any unsolicited proposal for an Acquisition Transaction, furnish information
concerning its business, properties or assets to the corporation, partnership,
person or other entity or group (a "Potential Acquiror") making such proposal
for an Acquisition Transaction and participate in negotiations with the
Potential Acquiror if (x) the Company's Board of Directors, after consultation
with one or more of its independent financial advisors, is of the reasonable
belief that such Potential Acquiror has the financial wherewithal to consummate
such an Acquisition Transaction, (y) the Company's Board of Directors reasonably
determines, after receiving advice from the Company's financial advisor, that
such Potential Acquiror has submitted a proposal for an Acquisition Transaction
that involves consideration to the Company's stockholders and other terms that
taken as a whole are superior to the Merger, and (z) based upon advice of
counsel to such effect, the Company's Board of Directors determines in good
faith that it is necessary to so furnish information and negotiate in order to
comply with its fiduciary duty to stockholders of the Company. In the event the
Company shall determine to provide any information as described above or shall
receive any offer of the type referred to in this Section 4.1 or shall receive
or become aware of any other proposal to acquire a substantial part of the
business and properties of the Company and its subsidiaries, taken as a whole,
or to acquire a substantial amount of capital stock of the Company, it shall
promptly inform Parent orally as to the fact that information is to be provided
and shall furnish to Parent the identity of the recipient of such information
and/or the proponent of any such offer or proposal and a description of the
material terms thereof. The Company will keep Parent fully informed of the
status and material details of any proposed Acquisition Transaction or other
transaction (including any material amendments or material proposed amendments
of any such proposed Acquisition Transaction or other transaction).
(b) Neither the Board of Directors of the Company nor any committee
thereof (x) shall withdraw or modify or propose to withdraw or modify, in any
manner adverse to Parent the approval of recommendation of such Board of
Directors or such committee of this Agreement, the Offer or the Merger or (y)
approve or recommend, or propose to approve or recommend, any proposal for an
Acquisition Transaction except, in each case, in connection with a Superior
Proposal (as defined in Section 6.5).
23
27
4.2 Interim Operations. (a) During the period from the date of this
Agreement to the Effective Time, except as contemplated by this Agreement, as
expressly permitted by Section 4.1 or as otherwise approved in writing by the
Purchaser, the Company shall not and shall cause its subsidiaries not to:
(i) (x) declare, set aside or pay any dividends on, or make any other
distributions in respect of, any of its capital stock, other than
dividends and distributions by a direct or indirect wholly owned
subsidiary of the Company to its parent, (y) split, combine or
reclassify any of its capital stock or issue or authorize the issuance
of any other securities in respect of, in lieu of or in substitution for
shares of its capital stock or (z) purchase, redeem or otherwise acquire
any shares of capital stock of the Company or any of its subsidiaries or
any other securities thereof or any rights, warrants or options to
acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of
its capital stock, any other voting securities or any securities
convertible into, or any rights, warrants or options to acquire, any
such shares, voting securities or convertible securities, except upon
exercise of any Option;
(iii) amend its certificate of incorporation, by-laws or other
comparable organizational documents;
(iv) except as set forth on the Disclosure Schedule, acquire or agree
to acquire (x) by merging or consolidating with, or by purchasing a
substantial portion of the assets of, or by any other manner, any
business or any corporation, limited liability company, partnership,
joint venture, association or other business organization or division
thereof or (y) any assets that individually or in the aggregate are
material to the Company and its subsidiaries taken as a whole;
(v) except as set forth on the Disclosure Schedule, sell, lease,
license, mortgage or otherwise encumber or subject to any Lien or
otherwise dispose of any of its properties or assets, other than in the
ordinary course of business consistent with past practice, that are
material to the Company and its subsidiaries taken as a whole;
(vi) incur any indebtedness, except for borrowings for working
capital purposes not in excess of $500,000 at any one time outstanding
incurred in the ordinary course of business consistent with past
practice and except for inter-
24
28
company indebtedness between the Company and any of its wholly-owned
subsidiaries or between such wholly-owned subsidiaries, or make any
loans, advances or capital contributions to, or investments in, any
other person, other than to the Company or any direct or indirect wholly
owned subsidiary of the Company;
(vii) except as set forth on the Disclosure Schedule, make or agree
to make any new capital expenditure or capital expenditures which in the
aggregate are in excess of $250,000;
(viii) make any tax election that could reasonably be expected to
have a Material Adverse Effect on the Company or settle or compromise
any material income tax liability;
(ix) except in the ordinary course of business or except as would not
reasonably be expected to have a Material Adverse Effect on the Company
or except as set forth on the Disclosure Schedule, modify, amend or
terminate any material contract or agreement to which the Company or any
subsidiary is a party or waive, release or assign any material rights or
claims thereunder;
(x) make any material change to its accounting methods, principles or
practices, except as may be required by generally accepted accounting
principles or as disclosed in the Disclosure Schedule;
(xi) permit any amendment to the form of benefit payments elected on
February 16, 1996 pursuant to the BioWhittaker, Inc. Supplemental
Executive Retirement Plan Deferral Agreement by any participant; or
(xii) authorize, or commit or agree to take, any of the foregoing
actions.
(b) Other Actions. Except as expressly permitted by Section 4.1, the
Company shall not, and shall not permit any of its subsidiaries to, take any
action that would, or that could reasonably be expected to, result in (i)
any of the representations and warranties of the Company set forth in this
Agreement that are qualified as to materiality becoming untrue, (ii) any of
such representations and warranties that are not so qualified becoming
untrue in any respect or (iii) any of the conditions to the Merger set forth
in Article 5 not being satisfied.
(c) Advice of Changes. The Company shall promptly advise Parent and
Parent shall promptly advise the Company orally and in writing of (i) any
repre-
25
29
sentation or warranty made by it (or, in the case of Parent, made by it or
the Purchaser) contained in this Agreement that is qualified as to
materiality becoming untrue or inaccurate in any respect or any such
representation or warranty that is not so qualified becoming untrue or
inaccurate in any respect or (ii) the failure by it (or, in the case of
Parent, a failure by it or the Purchaser) to comply with or satisfy in any
material respect any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement, provided, however, that no such
notification shall affect the representations, warranties, covenants or
agreements of the parties or the conditions to the obligations of the
parties under this Agreement.
4.3 Access and Information. Throughout the period prior to the Effective
Time, so long as this Agreement remains in effect, the Company shall afford to
the Purchaser and its representatives such access, during normal business hours,
to the Company's and its subsidiaries' books, records (including, without
limitation, tax returns and work papers of the Company's independent auditors),
plant and personnel, and to such other information, as Parent shall reasonably
request. Parent and the Purchaser will treat, and will cause their respective
accountants, counsel and other representatives to treat, as strictly
confidential all non-public documents and non-public information concerning the
Company furnished to Parent or the Purchaser in connection with the
transactions contemplated by this Agreement, subject to the requirements of law
and the provisions of this Agreement. If the transactions contemplated by this
Agreement are not consummated, such confidence shall be maintained except to the
extent such information can be shown to have been (i) in the public domain
through no fault of Parent or the Purchaser or (ii) later lawfully acquired by
Parent or the Purchaser from other sources without any breach of duty to the
Company by Parent, the Purchaser or, to the knowledge of Parent or the
Purchaser, any third party. If requested by the Company, Parent and the
Purchaser will return to the Company all copies of written information furnished
by the Company to Parent or the Purchaser or its agents, representatives or
advisors.
4.4 Certain Filings, Consents and Arrangements. Parent, the Purchaser
and the Company shall use their reasonable best efforts to make promptly any
required submissions under the HSR Act with respect to the Merger and the
transactions contemplated by this Agreement. The Company shall use its
reasonable best efforts to obtain all consents, approvals, permits or
authorizations as are required to be obtained from other parties to loan
agreements or other contracts material to the Company's business in connection
with the consummation of the Merger.
4.5 Reasonable Best Efforts. (a) Subject to the terms and conditions
provided in this Agreement, each of the parties agrees to use its reasonable
best efforts to take
26
30
promptly, or cause to be taken, all actions and to do promptly, or cause to be
done, all things necessary, proper or advisable to consummate and make effective
the transactions contemplated by this Agreement, including using its reasonable
best efforts (i) to obtain all necessary waivers, consents and approvals, and
(ii) to effect all necessary registrations and filings, subject, however, to
Company Stockholder Approval (as defined in Section 4.7 hereof). In case at any
time after the Effective Time any further action is necessary or desirable to
carry out the obligations of the parties under this Agreement, the proper
officers and/or directors of Parent, the Purchaser and the Company, as the case
may be, shall take the necessary action.
(b) In connection with and without limiting the foregoing, the Company
and its Board of Directors shall (i) take all action necessary to ensure that no
state takeover statute or similar statute or regulation, in each case as the
same is in effect on the date hereof, is or becomes applicable to the Offer, the
Merger, this Agreement, the Stockholder Agreement or any of the other
transactions contemplated by this Agreement or the Stockholder Agreement and
(ii) if any such state takeover statute or similar statute or regulation becomes
applicable to the Offer, the Merger, this Agreement, the Stockholder Agreement
or any other transaction contemplated by this Agreement or the Stockholder
Agreement take all action necessary to ensure that the Merger and the other
transactions contemplated by this Agreement and the Stockholder Agreement may be
consummated as promptly as practicable on the terms contemplated by this
Agreement and the Stockholder Agreement and otherwise to minimize the effect of
such statute or regulation on the Merger and the other transactions contemplated
by this Agreement and the Stockholder Agreement.
4.6 Public Statements. So long as this Agreement remains in effect,
Parent and the Purchaser, on the one hand, and the Company, on the other hand,
will consult with each other before issuing, and provide each other the
opportunity to review, comment upon and concur with, any press release or other
public statements with respect to the transactions contemplated by this
Agreement, including the Offer and the Merger, and shall not issue any such
press release or make any such public statement prior to such consultation,
except as may be required by applicable law, court process or by obligations
pursuant to any listing agreement with any national securities exchange.
4.7 Stockholder Approval. (a) If required by applicable law in order to
consummate the Merger, as soon as practicable following the purchase of the
Shares pursuant to the Offer, the Company shall duly call, give notice of,
convene and hold a meeting of its stockholders (the "Company Stockholders
Meeting") for the purpose of adopting and approving this Agreement and the
transactions contemplated hereby (the
27
31
"Company Stockholder Approval"). Without limiting the generality of the
foregoing, the Company agrees that its obligations pursuant to the first
sentence of this Section 4.7(a) shall not be affected by the commencement,
public proposal, public disclosure or communication to the Company of any
proposed Acquisition Transaction. The Company will, through its Board of
Directors, recommend to its stockholders the approval and adoption of this
Agreement and the transactions contemplated hereby, except to the extent that
the Board of Directors of the Company shall have withdrawn or modified its
approval or recommendation of this Agreement or the Merger and terminated this
Agreement in accordance with Section 4.1(b). At such meeting, the Parent and the
Purchaser will each vote, or cause to be voted, all Shares acquired in the Offer
or otherwise beneficially owned by it or any of its subsidiaries on the record
date for such meeting, in favor of the approval and adoption of this Agreement
and the transactions contemplated hereby.
(b) The Company shall, if required by law, prepare and file a proxy
statement (the "Proxy Statement") with the Commission in connection with
obtaining the Company Stockholder Approval. Parent and the Purchaser shall
cooperate with the Company in the preparation of the Proxy Statement including,
without limitation, promptly providing information requested by the Company or
required by the Commission to be included in the Proxy Statement and responding
promptly to any inquiries from the Company made in connection with comments on
the Proxy Statement received from the Commission. The Company will use its
reasonable best efforts to cause the Proxy Statement to be mailed to the
Company's stockholders as promptly as practicable after the Commission completes
its review of the Proxy Statement.
(c) The Company agrees that none of the information included or
incorporated by reference in the Proxy Statement or otherwise supplied by the
Company to its stockholders, including any amendments to any of the foregoing,
will be false or misleading with respect to any material fact or will omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not misleading; provided, that the foregoing shall not apply to
information supplied by or on behalf of Parent or the Purchaser specifically for
inclusion or incorporation by reference in any such document. Parent agrees that
none of the information supplied by or on behalf of Parent or the Purchaser
specifically for inclusion or incorporation by reference in any such document
will be false or misleading with respect to any material fact or will omit to
state any material fact required to be stated therein or necessary in order to
make the statements in such information, in light of the circumstances under
which they are made, not misleading.
28
32
(d) Notwithstanding the foregoing, in the event that the Purchaser shall
acquire at least 90 percent of the outstanding Shares, the parties hereto agree,
at the request of the Parent or the Purchaser, to take all necessary and
appropriate action to cause the Merger to become effective, as soon as
practicable after the expiration of the Offer, without a meeting of stockholders
of the Company, in accordance with Section 253 of the DGCL.
4.8 Stockholder Litigation. The Company shall consult with the Parent
regarding the defense or settlement of any stockholder litigation against the
Company and its directors relating to the transactions contemplated by this
Agreement; it being understood that the Company shall be entitled to control and
conduct any such litigation.
4.9 Indemnification, Exculpation and Insurance. Parent and the Purchaser
agree that all rights to indemnification and exculpation from liabilities for
acts or omissions occurring at or prior to the Effective Time now existing in
favor of the current or former directors or officers of the Company and its
subsidiaries as provided in their respective certificates of incorporation,
by-laws (or comparable organizational documents) and indemnification agreements
shall survive the Merger and shall continue in full force and effect in
accordance with their terms for a period of not less than six years from the
Effective Time. Parent will cause to be maintained for a period of not less than
six years from the Effective Time the Company's current directors' and officers'
insurance and indemnification policy to the extent that it provides coverage for
events occurring prior to the Effective Time ("D&O Insurance") for all persons
who are directors and officers of the Company on the date of this Agreement, so
long as the annual premium therefor would not be in excess of 200% of the last
annual premium paid prior to the date of this Agreement (the "Maximum Premium");
provided, however, that Parent may, in lieu of maintaining such existing D&O
Insurance as provided above, cause coverage to be provided under any policy
maintained for the benefit of Parent or any of its subsidiaries or any policy
specifically obtained for this purpose, so long as the terms thereof are no less
advantageous to the intended beneficiaries thereof than the existing D&O
Insurance. If the existing D&O Insurance expires, is terminated or canceled
during such six-year period, Parent will use all reasonable efforts to cause to
be obtained as much D&O Insurance as can be obtained for the remainder of such
period for an annualized premium not in excess of the Maximum Premium, on terms
and conditions no less advantageous to the covered persons than the existing D&O
Insurance. The Company represents to Parent that the Maximum Premium is
$340,000.
29
33
4.10 Amendment of Rights Agreement. The Company covenants and agrees
that it will not take action pursuant to or amend the Rights Agreement or redeem
the Rights or terminate the Rights Agreement prior to the Effective Time, except
as expressly contemplated or permitted by Section 3.1(s) of this Agreement.
4.11 Borrowings under the Loan Agreement. The Company shall consult with
the Parent prior to electing any new interest rate for any interest period under
the Loan Agreement with Nationsbank identified in the Disclosure Schedule and
shall otherwise manage its obligations thereunder to insure that neither the
Company, the Parent nor the Purchaser shall incur any breakage or similar
prepayment costs in the event the Company prepays its outstanding indebtedness
thereunder at the Effective Time.
5. CONDITIONS
5.1 Conditions to the Obligations of Parent, the Purchaser and the
Company. The obligations of Parent, the Purchaser and the Company to consummate
the Merger are subject to the satisfaction, at or before the Effective Time, of
each of the following conditions:
(a) The Purchaser shall have purchased all Shares duly tendered and not
withdrawn pursuant to the terms of the Offer and subject to the terms
thereof; provided that the obligation of the Parent and the Purchaser to
effect the Merger shall not be conditioned on the fulfillment of the
condition set forth in this Section 5.1 (a) if the failure of the Purchaser
to purchase the Shares pursuant to the Offer shall have constituted a breach
of the Offer or of this Agreement.
(b) The consummation of the Merger shall not be precluded by any order,
decree or injunction of a court of competent jurisdiction (each party
agreeing to use its best efforts to have any such order reversed or
injunction lifted), and there shall not have been any action taken or any
Law enacted, promulgated or deemed applicable to the Merger by any
Governmental Entity that makes consummation of the Merger illegal.
(c) If required by Certificate of Incorporation and By-Laws of the
Company and the DGCL, this Agreement shall have been approved and adopted by
the affirmative vote of the holders of the requisite number of shares of
Common Stock in accordance with the Certificate of Incorporation and By-Laws
of the Company and the XXXX.
00
00
(x) Any applicable waiting period under the HSR Act shall have expired
or been terminated.
5.2 Conditions to the Obligations of Parent and the Purchaser. The
obligations of Parent and the Purchaser to consummate the Merger are subject to
the satisfaction, at or before the Effective Time, of the following conditions:
(a) The Company shall have performed all of its material agreements and
covenants contained in this Agreement required to be performed on or prior
to the Effective Time and the representations and warranties of the Company
contained in this Agreement shall be true and correct in all material
respects on and as of (i) the date made and (ii) except in the case of
representations and warranties expressly made solely with reference to a
particular date, the Effective Time, and Parent and the Purchaser shall have
received a certificate of an executive officer of the Company to such
effect.
(b) The Company shall not have received notice from the holder or
holders of more than 10% of the outstanding Shares, determined on a fully
diluted basis, that such holder or holders have exercised or intend to
exercise its or their appraisal rights under Section 262 of the DGCL.
(c) The 179,656 Shares previously held by the Trust shall have been
returned to the Company and canceled, as described in the third recital to
this Agreement.
5.3 Conditions to the Obligations of the Company. The obligations of the
Company to consummate the Merger are subject to the satisfaction, at or before
the Effective Time, of the following conditions:
(a) Parent and the Purchaser shall have performed all of their
respective material covenants and agreements contained in this Agreement
required to be performed on or prior to the Effective Time and the
representations and warranties of the Parent and the Purchaser contained in
this Agreement shall be true and correct in all material respects on and as
of (i) the date made and (ii) except in the case of representations and
warranties expressly made solely with reference to a particular date, the
Effective Time, and the Company shall have received a certificate of an
executive officer of Parent to such effect.
31
35
6. MISCELLANEOUS
6.1 Termination. This Agreement may be terminated and the Merger contem-
plated herein may be abandoned at any time prior to the Effective Time, whether
prior to or after approval by the stockholders of the Company:
(a) by the mutual written consent of Parent, the Purchaser and the
Company;
(b) by either the Parent or the Company if, on or before October 31,
1997 and without fault of such terminating party, Purchaser shall not
have purchased in the Offer such number of the Shares which, together
with the number of Option Shares (as such term is defined in the
Stockholder Agreement) subject to the Stockholder Agreement, represent
in excess of 50% of the Shares on a fully diluted basis, or the Merger
shall not have been consummated on or before November 30, 1997, provided
however, that the right to terminate this Agreement shall not be
available (i) to any party whose failure to fulfill any obligation under
this Agreement has been the cause of, or resulted in, the failure of the
Offer or the Merger to have occurred on or before the aforesaid date;
(c) by either the Parent or the Company if the Offer shall expire or
terminate in accordance with its terms without any Shares having been
purchased thereunder and, in the case of termination by the Parent, the
Purchaser shall not have been required by the terms of the Offer or this
Agreement to purchase any Shares pursuant to the Offer;
(d) by the Company if the Purchaser shall not timely commence the Offer
as provided in Section 1.1(a);
(e) if a Company Stockholder Approval is required by law, by either the
Purchaser or the Company if, upon a vote at a duly held Company Stock-
holders Meeting or any adjournment thereof at which such Company Stock-
holder Approval shall have been voted upon, such Company Stockholder
Approval shall not have been obtained;
(f) unilaterally by the Purchaser or the Company (i) if the other fails
to perform any material covenant or agreement in any material respect in
this Agreement, and does not cure the failure in all material respects
within 30 business days after the terminating party delivers written
notice of the alleged
32
36
failure or (ii) if any condition to the obligations of that party is not
satisfied (other than by reason of a breach by that party of its
obligations hereunder), and it reasonably appears that the condition
cannot be satisfied prior to November 30, 1997;
(g) by either the Purchaser or the Company if either is prohibited by an
order or injunction (other than an order or injunction on a temporary or
preliminary basis) of a court of competent jurisdiction or other
Governmental Entity from consummating the Offer or the Merger and all
means of appeal and all appeals from such order or injunction have been
finally exhausted;
(h) by the Purchaser if the Board of Directors of the Company shall have
withdrawn or modified, or resolved to withdraw or modify, in any manner
which is adverse to Parent or the Purchaser, its recommendation or
approval of the Merger or this Agreement; provided, however, that a
termination pursuant to this Section shall not become effective if, as a
result of the Company's receipt of a proposal for an Acquisition
Transaction from a third party, the Company, in accordance with Section
4.1(b), withdraws or modifies, or resolves to withdraw or modify, in any
manner which is adverse to Parent or the Purchaser, its recommendation
or approval of the Offer, the Merger or this Agreement and if within ten
business days of taking and disclosing to its stockholders the
aforementioned position the Company publicly reconfirms its
recommendation of the transactions contemplated hereby; or
(i) by the Company if (i) the Board of Directors of the Company shall
have determined in good faith, based on the advice of outside counsel,
that it is necessary, in order to comply with its fiduciary duties to
the Company's stockholders under applicable law, to terminate this
Agreement to enter into an agreement with respect to or to consummate a
transaction constituting a Superior Proposal (as defined in Section
6.5), (ii) the Company shall have given notice to the Purchaser advising
the Purchaser that the Company has received a Superior Proposal from a
third party, specifying the material terms and conditions (including the
identity of the third party), and that the Company intends to terminate
this Agreement in accordance with this Section 6.1(i), (iii) either (A)
the Purchaser shall not have revised its proposal for an Acquisition
Transaction within two business days from the time on which such notice
is deemed to have been given to Parent, or (B) if the Purchaser within
such period shall have revised its proposal for an Acquisition
Transaction, the Board of Directors of the Company, after receiving
advice from the Company's financial advisor, shall have determined in
its good faith reasonable
33
37
judgment that the third party's proposal for an Acquisition Transaction
is superior to Parent's revised proposal for an Acquisition Transaction,
and (iv) the Company, at the time of such termination, pays the Expenses
and the Termination Fee in accordance with Section 6.12.
In the event of a termination of this Agreement and an abandonment of the
Merger, no party hereto (or any of its directors, officers, representatives
or agents) shall have any further liability or further obligation to any
other party to this Agreement, except with respect to the provisions of this
Article 6 and the other provisions that survive the Merger pursuant to
Section 6.2 and except that nothing herein will relieve any party from
liability for any willful breach of its representations, warranties,
covenants and agreements set forth in this Agreement.
6.2 Non-Survival of Representations, Warranties and Agreements. The
representations, warranties and agreements in this Agreement shall terminate at
the Effective Time or the termination of this Agreement pursuant to Section 6.1,
as the case may be, except that, in the event the Effective Time occurs, the
agreements set forth in Section 4.9 and the last sentence of Section 4.5(a)
shall survive indefinitely and, in the event this Agreement is terminated prior
to the occurrence of the Effective Time, the agreements set forth in Sections
4.3 and 6.12 shall survive indefinitely.
6.3 Amendment and Waiver. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto and in
compliance with applicable law. At any time prior to the Effective Time, the
parties hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant thereto and (c) waive compliance with any of the
agreements or conditions contained herein; provided, however, that no such
waiver may materially adversely affect the rights of the stockholders of the
Company. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid if set forth in an instrument in writing signed on behalf
of such party.
6.4 Entire Agreement. This Agreement and the two separate but
substantially identical Stockholder Agreements, each dated as of the date,
hereof among Parent and certain stockholders of the Company and the
Confidentiality Agreement dated as of March 20, 1997, between the Company and
Parent contain the entire agreement among Parent, the Purchaser and the Company
with respect to the Merger and the other transactions contemplated hereby and
thereby, and such agreements supersede all prior agreements among the parties
with respect to these matters.
34
38
6.5 Definitions. (a) As used herein, the term "Hazardous Substance"
means asbestos-containing material and any and all hazardous or toxic
substances, materials or wastes as defined or listed under the Resource
Conservation and Recovery Act, the Toxic Substances Control Act, the
Comprehensive Environmental Response, Compensation and Liability Act or any
comparable state statute or any regulation promulgated under any of
such federal or state statutes.
(b) As used herein, the term "Person" means any individual, corporation,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization or other entity.
(c) As used herein, the term "Superior Proposal" means a bonafide
proposal to acquire, directly or indirectly, for consideration consisting of
cash and/or securities, more than 50% of the Shares then outstanding or all or
substantially all the assets of the Company, provided (i) such proposed
transaction satisfies the tests set forth in clauses (x), (y) and (z) of the
second sentence of Section 4.1(a) hereof and (ii) the Board of Directors
determines, in its good faith reasonable judgment, that such proposed
transaction is reasonably likely to be consummated without undue delay.
6.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
conflicts of law principles thereof.
6.7 Headings. The descriptive headings contained in this Agreement are
for convenience and reference only and shall not affect in any way the meaning
or interpretation of this Agreement.
6.8 Notices. Each party shall promptly give written notice to the other
party upon becoming aware of the occurrence or, to its knowledge, impending or
threatened occurrence, of any event which would cause or constitute a breach of
any of its representations, warranties or covenants contained or referenced in
this Agreement and will use its best efforts to prevent or promptly remedy the
same. All notices or other communications under this Agreement shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by facsimile, telex or other standard form of
telecommunications, by courier service, or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to the Company:
0000 Xxxxx Xxxx Xxxx
35
39
Xxxxxxxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attn: F. Xxxxxx Xxxxxxx, Esq.
With a copy to:
Venable, Baetjer, Xxxxxx & Xxxxxxxxx, LLP
0000 Xxx Xxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxx, Esq.
If to Parent or the Purchaser:
Cambrex Corporation
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esq.
With a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esq.
or to such other address or facsimile number as any party may have furnished to
the other parties in writing in accordance with this Section 6.8.
6.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one agreement.
6.10 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or
36
40
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
6.11 Parties in Interest; Assignment. This Agreement is binding upon and
is solely for the benefit of the parties hereto and their respective successors,
legal representatives and assigns, except that Section 4.9 is intended to be for
the benefit of the parties referred to therein, and may be enforced by such
parties. The Purchaser shall have the right (a) to assign to Parent or any
direct or indirect wholly-owned subsidiary of Parent any and all rights and
obligations of the Purchaser under this Agreement, including, without
limitation, the right to substitute in its place such a subsidiary as one of the
constituent corporations in the Merger (such subsidiary assuming all of the
obligations of the Purchaser in connection with the Merger) and may require
subsidiaries of the Company to merge with subsidiaries of the Purchaser (or its
assignees) in connection with the Merger and (b) to restructure the transaction
to provide for the merger of the Company with and into the Purchaser or such
other entity as provided above; provided, however, that the Company shall not be
deemed to have breached any of its representations and warranties herein by
reason of the Purchaser exercising its rights hereunder, and by exercising such
rights Parent will be deemed to have waived the receipt of any additional
consents of third parties required by virtue thereof; and provided further that
no such assignment shall affect any obligation of Parent or Purchaser hereunder
and that it shall remain primarily liable as to its assigned obligations. If the
Purchaser exercises its right to so restructure the transaction, the Company
shall promptly enter into appropriate agreements to reflect such restructuring.
6.12 Fees and Expenses. (a) Except as provided below in this Section
6.12, all fees and expenses incurred in connection with the Offer, the Merger,
this Agreement, the Stockholder Agreement and the transactions contemplated by
this Agreement and the Stockholder Agreement shall be paid by the party
incurring such fees or expenses, whether or not the Merger is consummated.
(b) The Company shall pay, or cause to be paid, in same day funds to
Parent the sum of (x) Parent's Expenses (as defined below) and (y) $4,125,000
(the "Termination Fee") upon demand if the Company terminates this Agreement
pursuant to Section 6.1(i). In addition, the Company shall pay or cause to be
paid, in same day funds to Parent the sum of Parent's Expenses and the
Termination Fee if (i) the Purchaser terminates this Agreement pursuant to
Section 6.1(f) or 6.1(h) at any time after a proposal for an Acquisition
Transaction has been made (ii) the Company or the Purchaser terminates this
Agreement pursuant to Section 6.1(b), 6.1(c) or 6.1(e) at any time after a
proposal for an Acquisition Transaction has been made or (iii) the
37
41
Purchaser terminates this Agreement pursuant to Section 6.1(f)(ii) at any time
after a proposal for an Acquisition Transaction has been made and, within nine
months after any termination referred to in the immediately preceding clauses
(i), (ii) or (iii) of this sentence, the Person that made the proposal for an
Acquisition Transaction (or an affiliate thereof) completes a merger,
consolidation or other business combination with the Company or a subsidiary of
the Company, or the purchase from the Company or from a subsidiary of the
Company of 30% or more (in voting power) of the voting securities of the Company
or of 30% or more (in market value) of the assets of the Company and its
subsidiaries, on a consolidated basis; provided that the Company will not have
any obligations under this Section 6.12(b) if the Purchaser terminates this
Agreement pursuant to Section 6.1(f)(ii) as a result of the failure of a
condition to be satisfied unless the reason for the failure of such condition to
be satisfied is reasonably related to the making of such proposal for an
Acquisition Transaction by the Person that ultimately consummated a transaction
with the Company. "Expenses" shall mean reasonable and reasonably documented
out-of-pocket fees and expenses incurred or paid by or on behalf of Parent in
connection with the Merger or the consummation of any of the transactions
contemplated by this Agreement (including, without limitation, the fees and
expenses of one counsel representing the financial institutions providing
financing to the Purchaser and all fees and expenses of Parent's investment
banking firm), provided that all such Expenses for this purpose shall not exceed
$1.2 million in the aggregate.
6.13 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.
38
42
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date set forth above.
BIOWHITTAKER, INC.
By: /s/ XXXX XXXXXXXXXX
------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: President and Chief Executive Officer
CAMBREX CORPORATION
By: /s/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice President
BW ACQUISITION CORPORATION
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
39
43
ANNEX A
Certain Conditions of the Offer Notwithstanding any other provision
of the Offer, the Purchaser shall not be required to accept for payment, or,
subject to any applicable rules and regulations of the Commission, including
Rule 14e-1(c) under the Exchange Act (relating to the Purchaser's obligation to
pay for or return tendered shares after the termination or withdrawal of the
Offer), to pay for any Securities tendered pursuant to the Offer, and (subject
to the terms of the Agreement) may amend or terminate the Offer or postpone the
acceptance for payment, the purchase of, and/or (subject to any such applicable
rules and regulations of the Commission) payment for, Securities tendered, (i)
unless there are validly tendered and not properly withdrawn prior to the
expiration of the Offer that number of Shares which, together with the number of
Option Shares (as such term is defined in the Stockholder Agreement) subject to
the Stockholder Agreement, represents in excess of 50% of the Shares on a
fully-diluted basis, or (ii) if at any time on or after the date of the
Agreement and at or before the time of payment for any such Shares (whether or
not any Shares shall theretofore have been accepted for payment or paid pursuant
to the Offer) any of the following conditions exists:
(a) there shall have been any action or proceeding brought by any
governmental authority before any federal or state court, or any order or
preliminary or permanent injunction entered in any action or proceeding
before any federal or state court or governmental, administrative or
regulatory authority or agency, located or having jurisdiction within the
United States or any country or economic region in which either the
Company or Parent, directly or indirectly, has material assets or
operations, or any other action taken, proposed or threatened, or statute,
rule, regulation, legislation, interpretation, judgment or order proposed,
sought, enacted, entered, enforced, promulgated, amended, issued or deemed
applicable to Purchaser, the Company or any subsidiary or affiliate of
Purchaser or the Company or the Offer or the Merger, by any legislative
body, court, government or governmental, administrative or regulatory
authority or agency located or having jurisdiction within the United
States or any country or economic region in which either the Company or
Parent, directly or indirectly, has material assets or operations, which
could reasonably be expected to have the effect of: (i) making illegal, or
otherwise restraining or prohibiting or making materially more costly, the
making of the Offer, the acceptance for payment of, payment for, or owner-
ship, directly or indirectly, of some of or all the Shares by Parent or
Purchaser, the consummation of any of the transactions contemplated by the
Agreement or materially delaying the Merger; (ii) prohibiting or
materially limiting the owner-
A-1
44
ship or operation by the Company or any of its subsidiaries, or by
Parent, Purchaser or any of Parent's subsidiaries of all or any
material portion of the business or assets of the Company and its
subsidiaries taken as a whole or Parent or any of its subsidiaries, or
compelling Purchaser, Parent or any of Parent's subsidiaries to dispose
of or hold separate all or any material portion of the business or
assets of the Company and its subsidiaries taken as a whole or Parent
or any of its subsidiaries, in each case as a result of the
transactions contemplated by the Offer or the Agreement; (iii) imposing
or confirming material limitations on the ability of Purchaser, Parent
or any of Parent's subsidiaries effectively to acquire or hold or to
exercise full rights of ownership of Shares including, without
limitation, the right to vote any Shares acquired or owned by Parent or
Purchaser or any of Parent's subsidiaries on all matters properly
presented to the shareholders of the Company, including, without
limitation, the adoption and approval of the Agreement and the Merger
or the right to vote any shares of capital stock of any subsidiary
directly or indirectly owned by the Company; (iv) requiring divestiture
by Parent or Purchaser, directly or indirectly, of any Shares; or (v)
which could reasonably be expected to materially adversely affect the
business, financial condition or results of operations of the Company
and its subsidiaries taken as a whole or the value of the Shares or of
the Offer to Purchaser or Parent;
(b) there shall have occurred (i) any general suspension of
trading in, or limitation on prices for, securities on any national
securities exchange or in the over-the-counter market in the United
States, (ii) a declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States, (iii) any limitation
(whether or not mandatory) by any U.S. government or governmental,
administrative or regulatory authority or agency, on, or any other
event that materially adversely affects, the extension of credit by
banks or other lending institutions, (iv) a commencement of a war or
armed hostilities or other national or international calamity directly
or indirectly involving the United States which would reasonably be
expected to have a Material Adverse Effect or materially adversely
affect (or materially delay) the consummation of the Offer or (v) in
the case of any of the foregoing existing at the time of the execution
of the Agreement, a material acceleration or worsening thereof which
acceleration or worsening is reasonably expected to have a Material
Adverse Effect on the Company or to materially adversely affect the
consummation of the Offer;
(c) (i) it shall have been publicly disclosed that beneficial
ownership (determined for the purposes of this paragraph as set forth
in Rule 13d-3
A-2
45
promulgated under the Exchange Act) of 20% or more of the outstanding
Shares has been acquired by any corporation (including the Company or
any of its subsidiaries or affiliates), partnership, person or other
entity or group (as defined in Section 13(d)(3) of the Exchange Act),
other than Parent or any of its affiliates, or (ii) (A) the Board of
Directors of the Company or any committee thereof shall have withdrawn
or modified in a manner adverse to Parent or Purchaser the approval or
recommendation of the Offer, the Merger or the Agreement and, within
ten business days of taking and disclosing to its stockholders the
aforementioned position, shall not have publicly reconfirmed its
recommendation of the Offer, the Merger or the Agreement, or approved
or recommended any takeover proposal or any other acquisition of Shares
other than the Offer and the Merger, (B) any such corporation,
partnership, person or other entity or group shall have entered into a
definitive agreement or an agreement in principle with the Company with
respect to a tender offer or exchange offer for any Shares or a merger,
consolidation or other business combination with or involving the
Company or any of its subsidiaries or (C) the Board of Directors of the
Company or any committee thereof shall have resolved to do any of the
foregoing;
(d) any of the representations and warranties of the Company
set forth in the Agreement that are qualified as to materiality shall
not be true and correct or any such representations and warranties that
are not so qualified shall not be true and correct in any material
respect, in each case as if such representations and warranties were
made at the time of such determination, except with respect to
representations and warranties made as of an earlier time;
(e) the Company shall have failed to perform any material
obligation or to comply with any material agreement or material
covenant of the Company to be performed or complied with by it under
the Agreement;
(f) the Agreement shall have been terminated in accordance
with its terms or the Offer shall have been terminated with the consent
of the Company; or
(g) any waiting periods under the HSR Act applicable to the
purchase of Shares pursuant to the Offer shall not have expired or been
terminated or any material approval, permit, authorization, consent or
waiting period of any domestic, foreign or supranational governmental,
administrative or regulatory agency (federal, state, local, provincial
or otherwise) located or having jurisdiction within the United States
or any country or economic region in which either the
A-3
46
Company or Parent, directly or indirectly, has material assets or
operations, shall not have been obtained and such failure to obtain
could reasonably be expected to have a Material Adverse Effect on the
Company or the value of the Shares or the Offer to the Purchaser;
which, in the good faith sole judgment of Purchaser makes it inadvisable to
proceed with the Offer or with such acceptance for payment of or payment for
Shares or to proceed with the Merger.
The foregoing conditions are for the sole benefit of Purchaser and may
be asserted by Purchaser regardless of the circumstances giving rise to any such
condition or may be waived by Purchaser in whole or in part at any time and from
time to time in its sole discretion (subject to the terms of the Agreement). The
failure by Purchaser at any time to exercise any of the foregoing rights shall
not be deemed a waiver of any such right, the waiver of any such right with
respect to particular facts and other circumstances shall not be deemed a waiver
with respect to any other facts and circumstances, and each such right shall be
deemed an ongoing right that may be asserted at any time and from time to time.
A-4
47
Exhibit A
List of Stockholders Party to Stockholders Agreement
Management Stockholders Agreement
Anasco GmbH
Stockholders Agreement
Xxxx Xxxxxxxxxx
Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxx Xxxxx
Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxxxx
48
Schedule 2.2
Officers of Surviving Corporation
Xxxxxx X. Xxxxxxxxx Chairman of the Board
Xxxx X. Xxxxxxxxxx President and Chief Executive Officer
Xxxxxx X. Xxxxxxx Executive Vice President and Chief
Operating Officer
Xxxxxx X. Xxxxxx, Xx. Vice President and Chief Financial
Officer
Xxxx X. Xxxxx Vice President, Regulatory Affairs
Xxxxx X. Xxxxxx Vice President and Assistant Secretary
Xxxxxxx XxXxxxxx Vice President and Assistant Treasurer
F. Xxxxxx Xxxxxxx Secretary and General Counsel
49
DISCLOSURE SCHEDULE (AS OF AUGUST 22, 1997)
3.2 REPRESENTATIONS AND WARRANTIES OF BIOWHITTAKER
(b) CAPITALIZATION.
- Preemptive Rights - Pursuant to Section 8.01(c) of
the Stock Purchase Agreement, dated September 24,
1991, between BioWhittaker, Inc. and Anasco GmbH (the
"Anasco Stock Purchase Agreement"), BioWhittaker is
obligated to pay Anasco a Compensation Amount (as
defined in the Anasco Stock Purchase Agreement) upon
the exercise of Substitute Options (as defined in the
Anasco Stock Purchase Agreement). The compensation is
to be paid in either cash or Voting Securities (as
defined in the Anasco Stock Purchase Agreement) at
the election of BioWhittaker. Under the terms of the
Anasco Stock Purchase Agreement, such right will
terminate upon the sale of Anasco's shares of
BioWhittaker Common Stock upon consummation of the
Tender Offer, such that Anasco's beneficial ownership
is less than 5%.
- Options to acquire 1,071,388 shares of stock
outstanding (see attached list).
- For voting trusts or other voting agreements - see
Article VIII of the Anasco Stock Purchase Agreement.
- For stock appreciation rights, BioWhittaker U.K.
Limited stock is subject to the rights of Xxxx Xxxxxx
under the Equity Compensation Plan Agreement with
Xxxx Xxxxxx dated as of December, 1991.
(c) SUBSIDIARIES.
- BioWhittaker Technologies, Inc., a Delaware
Corporation
- Clonetics Corporation, a Delaware Corporation
- BioWhittaker USVI, Inc., a U.S. Virgin Islands
Corporation
- BioWhittaker U.K. Limited, a United Kingdom
Corporation
- BioWhittaker Holdings, Inc., a Delaware Corporation
- With respect to BioWhittaker U.K. Limited, the stock
is subject to the rights of Xxxx Xxxxxx under the
Equity Compensation Plan Agreement with Xxxx Xxxxxx
dated as of December, 1991 and the provisions of the
Stock Purchase Agreement dated April 30, 1995,
between BioWhittaker, Inc and Boehringer Ingelheim
International GmbH, as amended by Amendment No. 1
dated July 26, 1995 (the "1995 Stock Purchase
Agreement").
- With respect to the last sentence of Section 3.2(c),
BioWhittaker has the right to re-acquire an interest
in the Boehringer Ingelheim BioProducts Partnership
pursuant to the terms and conditions set forth in the
1995 Stock Purchase Agreement.
1
50
(d) AUTHORITY.
The following corporate actions could be required:
- Board action required to call a meeting of
stockholders to approve the Merger.
- Board action to comply with Section 1.3 of the
Agreement.
(e) CONSENTS: NO VIOLATION (ASSUMES BIOWHITTAKER IS THE SURVIVING
CORPORATION).
(ii) The following agreements are exceptions to (ii)
- Loan agreement with NationsBank.
- The following Agreements would be affected by a Change of
Control as described below:
- Stock Purchase Agreement as of 9/24/91 between
BioWhittaker, Inc. and Anasco GmbH (the "1991 SPA")
- 1995 Stock Purchase Agreement.
- Joint Venture and Partnership Agreement, dated as of
, 1991 (date left blank on our copy),
by and between Boehringer Ingelheim BioProducts, Inc.
and BioWhittaker International, Inc.
- Technology License Agreement, dated as of October 31,
1991, by and between BioWhittaker, Inc and
BioWhittaker International, Inc. and Assignment and
Assumption of Technology License Agreement dated
October 31, 1991 between BioWhittaker International,
Inc. and Boehringer Ingelheim BioWhittaker.
- Distributor Agreement, dated as of November 1, 1995,
by and between BioWhittaker, Inc. and Boehringer
Ingelheim BioProducts, Partnership.
- Distributor Agreement by and between Boehringer
Ingelheim BioWhittaker and BioWhittaker UK, Limited.
1. If the Company undergoes a "Change of Control" as
contemplated by the Merger Agreement, Boehringer Ingelheim
would have a right to terminate the Company's option to
reacquire its interest in the BI Joint Venture Affiliate (see
8.3(a)(iii) of Stock Purchase Agreement between BioWhittaker,
Inc. and Boehringer International GmbH dated 4/28/95 ("the
1995 SPA")).
Under the express terms of the relevant agreements,
such a termination would also result in the following;
The covenants of Section 9.1 of the 1995 SPA would
cease to be in effect (see Section 9.1 of the 1995 SPA).
The covenants of Section 9.2(b) of the SPA would
become effective. In addition, and depending on whether the
Exercise Period is deemed to have "expired" upon receipt of a
notice of termination associated with a Change of Control date
(see the definitions of "Exercise Period" and "Option
Termination Date in Section 8.3(a) of the 1995 SPA), the
covenants of Section (9.2(a), (c) and (d) may also become
effective.
Pursuant to Section 9.4, of the 1995 SPA, Boehringer
Ingelheim would have a right of first refusal to purchase
BioWhittaker UK, Limited.
To the extent that there are inconsistencies in the
drafting of, or among the provisions of, the provisions of the
agreements referred to above, the Company expresses no opinion
in this Disclosure Schedule as to the correct interpretation
of such provisions.
2
51
2. If Anasco and its affiliates ceased to own 5% or
more of the Total Voting Power (as defined in the Stock
Purchase Agreement as of 9/24/91 between BioWhittaker, Inc.
and Anasco GmbH (the "1991 SPA")), the rights and obligations
of the parties under Article VIII of the 1991 SPA would
terminate (subject to a right of revival) if Anasco
subsequently re-acquired 5% or more of the Total Voting
Power). The rights and obligations at issue include Anasco's
rights to Board representation, registration rights and
compensation upon exercise of any Substitute Stock Options and
the Company's rights of first refusal with regard to Company
stock, to require Anasco to vote for Board nominees and to be
counted towards a quorum at a stockholder meeting and to
restrict certain other actions of Anasco relating to voting
rights and acquisitions of the Company.
- Supplemental Executive Retirement Plan.
- Written Consent of Directors (oral consent having
been obtained) required to cash out options issued to
Directors under the 1994 Stock Option Plan for
Non-Employee Directors.
- Federal contracts are subject to the Federal
Assignment of Claims Act of 1940, as amended (31
U.S.C. 3727, 41 U.S.C. 15) and related rules,
regulations and contract clauses (see for example
Federal Acquisition Regulations Subpart 42.12) and
administrative and court decisions thereon; state
procurement laws may have similar provisions. While
there are strong arguments that this transaction as
structured is not an assignment or transfer under the
federal law, there is some authority to the contrary
and it is conceivable that a government contracting
officer could determine that consents were required.
(f) SEC REPORTS, ETC.
See litigation schedule (Section 3.2(i) of the
Disclosure Schedule).
(g) NO MATERIAL ADVERSE CHANGE.
MATERIAL ADVERSE CHANGES SINCE 10/31/96.
(i) See litigation schedule (Section 3.2(i) of
the Disclosure Schedule) and First Amendment
dated January 23, 1997 to Asset Purchase and
Supply Agreements with Xxxxxx-Xxxxxxx, Inc.
(ii) See stock options granted in February, 1997
as shown on the list of outstanding options
referred to in Section 3.2(b) of this
Disclosure Schedule; compensation
information in most recent proxy disclosure
does not include December, 1996 salary and
bonus adjustments which have been separately
disclosed to Purchaser.
(iv) Employment Agreement pending with Xxxx
Xxxxxx (copy furnished to Purchaser's
representatives).
- BioWhittaker executed a Change of Control
Employment Agreement with each of the
following persons on or about March 11,
1997:
3
52
Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxxx
F. Xxxxxx Xxxxxxx, Xx.
Xxxx Xxxxx
(vi) BioWhittaker will implement FASB 123 in 1997 as
disclosed in the most recent SEC Form 10-K. Also, the
IRS notified BioWhittaker that it will consent to a
change in tax accounting methods for inventory. A
copy of the Consent Agreement dated July 16, 1997 has
been provided.
(i) LITIGATION.
- Xxxxxx Erie
v.
BioWhittaker, Inc., Xxxx Xxxxxxxxxx and Xxxxxx X. Xxxxxxx
United States District Court
District of Massachusetts
Civil Action No. 97-11414 XXX
Xxxxxx Erie was formerly employed by BioWhittaker as
a salesman. On May 22, 1997, Mr. Erie's employment
was terminated by BioWhittaker. Mr. Erie has filed
suit claiming damages for (a) breach of contract (an
alleged lifetime employment contract), (b) promissory
estoppel (based on a representation that the Company
would employ Mr. Erie until he chose to retire) and
(c) negligent or intentional misrepresentation
(inducing Mr. Erie to leave his prior employment).
Mr. Erie seeks damages in an undetermined amount, but
indicates that the compensation that he would have
earned from continued employment would have been not
less than $1,585,000. Mr. Erie also seeks interest and
costs, including reasonable attorney's fees.
At this time, the Company has not been required to
file a response to the original complaint. The
Company will contend that, in addition to other
defenses, Mr. Erie was employed at will.
Pennsylvania Regional Tissue & Transplant Bank t/d/b/a
Pennsylvania Regional Tissue Bank
v.
Xxxxx X. Xxxxxxxx, Xx. et al
and
BioWhittaker, Inc.
United States District Court
Middle District of Pennsylvania
Scranton Division
Civil Action No. 3:CV-96-0608
Xx. Xxxxxxxx was, at one time, an employee of PRTB
and/or its subsidiaries. Xx. Xxxxxxxx left PRTB's
employ and set up Anatomic Gift Foundation and the
Human Cell Culture Center, Inc. (HCCC) in 1994 or
before. PRTB claims that the defendants (a) usurped a
corporate opportunity (b) converted and
misappropriated trade secrets
4
53
(c) conspired to harm PRTB and other defendants, (d) breached
agreements with PRTB and its subsidiaries, (e) breached their fiduciary
duty to PRTB and its subsidiaries and (f) tortiously interfered with
contractual relationships with organ procurement organizations,
researchers and others.
In the complaint, the plaintiff seeks unspecified damages in excess of
$50,000 and punitive damages together with interest and costs and
injunctions to prevent further violations of plaintiff's rights. In
1996, BioWhittaker entered into a contract with HCCC (a copy of which
has been furnished to Parent) to distribute certain products for HCCC.
In July of 1997, the plaintiff filed a motion to join BioWhittaker as a
party to the litigation. Defendants have responded opposing the motion
to join BioWhittaker. At this time, BioWhittaker is not a party to the
suit and will have a chance to file motions objecting to its joinder,
if plaintiff's motion to join BioWhittaker is approved by the court.
- BioWhittaker, Inc.
v.
Pharmacia-Upjohn K.K, et al
Tokyo District Court
Case No. Tokyo District Court Hei-9(1997)-WAS-5792
Xxxx Xx. Xxxxx Xxxxxxxx Xxxxx Xxx-0(0000)-XX-00000
BioWhittaker previously sued Pharmacia AB (now merged with Upjohn as
Pharmacia & Upjohn, Inc.) and certain of its affiliates (collectively
with Pharmacia referred to as Pharmacia) and one of its distributors in
the United States for breach of its U.S. Patent on methods for testing
for certain allergies. After a partial summary judgment in favor of
BioWhittaker, Pharmacia agreed to a settlement in which it agreed to
pay $3.5 million in damages for past infringement, $500,000 as a
royalty for 1995 and royalties at a rate of 3% per annum for all sales
in the United States, Canada and Australia until BioWhittaker's patents
in those countries expired, with a minimum royalty of $300,000 per year
on sales from the United States for years 1996-1999.
At the time of the US settlement, there was a patent pending on the
same technology in Japan. Pharmacia chose to oppose the issuance of
that patent, but the Patent was issued over Pharmacia's opposition. Now
that the patent has issued in Japan, after unsuccessful attempts to get
Pharmacia to negotiate concerning use of the patented technology in
Japan, the Company has filed a lawsuit against Pharmaria seeking
damages and an injunction against future use of the patent. The amount
of the controversy is approximately 7.5 billion yen, including
approximately 5 billion yen of damages and compensation and
approximately 2.5 billion yen representing the value of the injunctions
against Pharmacia and one of its Japanese distributors.
- Promocell cases in Germany and France (trademark litigation by
Clonetics that commenced prior to Clonetics acquisition) CellSystems
Biotechnologie Vertriebs GmbH and Clonetics Corporation
5
54
v.
Xx. Xxxxxx Xxxx and Xxxx Xxxxxxx
Upper District Court Karlsruhe, Federal Republic of Germany
Case No. 16:507
and
- Clonetics Corporation
x.
Xxxxxxx Xxxxxx Xxxx
Docteur Xxxx Xxxxxxx
PromoCell
la 2 ieme Chambre du Tribunal de Grande Instance de Rennes, France
Case No. 3282/95
These cases began prior to BioWhittaker's acquisition of Clonetics
Corporation. Originally Messrs. Xxxx and Xxxxxxx, trading as PromoCell
filed suit in Germany against a Clonetics distributor and Clonetics
Corporation seeking damages for trademark infringement. It was
subsequently determined that Messrs. Xxxx and Xxxxxxx had trademarked
marks which were already in use by Clonetics and copied Clonetics
promotional materials. Clonetics countersued for unfair trade practices
and other causes of action seeking a cancellation of PromoCell's
trademarks that copied the Clonetics trademarks, damages and other
remedies. In the original trial court, Clonetics was awarded damages,
the cancellation of the infringing marks and other remedies. On appeal,
the intermediate court confirmed in part and reversed in part,
indicating that Clonetics was entitled to cancellation of the marks
registered by PromoCell, but was not entitled to damages. The matter is
presently on appeal to the highest court in Germany and is awaiting the
original trial in France where Clonetics had filed trademarks prior to
PromoCell's use of similar marks.
- Dispute with Microbix concerning supply of HNK calls.
Microbix BioSystems, Inc. v. BioWhittaker, Inc. and BioWhittaker
Holdings, Inc., United States District Court for the District of
Maryland, Case number MJ9-972525.
Microbix Biosystems filed suit against BioWhittaker and BioWhittaker
Holdings alleging anti trust violations, including violations of
sections 1 and 2 of the Xxxxxxx Act, misrepresentation, promissory
estoppel and breach of a requirements contract. Plaintiff seeks treble
damages with regard to the anti-trust claims, injunctive relief
prohibiting defendants from refusing to sell HNK cells to Microbix for
five years and damages in excess of $75,000 on each of 2 counts, with
exemplary punitive damages in the amount of $10 million, an order of
specific performance, a declaration of rights and costs and expenses
and attorneys fees for each cause of action.
- Claim of possible patent infringement of U.S. Patent No. 5,262,359.
Notice of claim received from the Centers For Disease Control in letter
dated August 8, 1997.
On or about August 12, BioWhittaker received a letter dated August 8,
6
55
1997 from Xxxxxxxx Xxxxxx, Technology Licensing Specialist
with the Centers for Disease Control and Prevention,
indicating that BioWhittaker was marketing H292 Human Lung
Mucocpidermoid Carcinoma Cells and alleging that the cells
were subject to a patent issued on November 16, 1993 relating
to methods for propagating human paramyxoviruses in the H292
cell line. She further indicated that the patent had been
exclusively licensed to Intracel Corporation. BioWhittaker is
in the process of investigating this claim. However, total
sales of the product alleged to infringe the patent have not
exceeded $20,000 in total for the period of four years since
the patent was issued.
(j) FEES.
- Engagement letter between Alex. Xxxxx & Sons Incorporated and
BioWhittaker, Inc. dated January 2, 1997.
(m) EMPLOYEE BENEFIT PLANS: EMPLOYEE AGREEMENTS.
- Employment Agreements
Xx. Xxxxxx Xxxxxxx Offer and relocation letter
Xxxx Xxxxxxx Offer letter includes specific term and
relocation benefit already paid
Xxxxxxxx Xxxx Relocation letter
Xxxx Xxxx Offer and relocation letter
On or before January 17, 1996, BioWhittaker executed
employment agreements with the following persons who were then
employees of CLONETICS CORPORATION, who are currently employed
by BioWhittaker:
Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxx
Soverin Karmiol
Xxxx Xxxxxxx
Xxxxxx Xxxxx-Xxxxxx
BioWhittaker and or its British subsidiary executed employment
agreements with the following BIOWHITTAKER, U.K. employees:
Xxxxxxx Xxx Xxxxxx Customer Support 08/01/91
Xxxxxx Xxxxx Customer Service Executive 05/01/97
Xxxxx Xxxxxxx Guy Product Specialist 06/15/92
Xxxxxxx Xxxxxxxxx Sales Representative 04/14/97
Xxxxxx Xxxxx Sales Representative 09/02/96
Xxxx Xxxxxxxx Office Administrator 05/01/95
Xxxxxx Xxxxxxx Financial Assistant 01/27/97
Xxxxxx Xxxxxxxxx Sales Representative 01/01/94
Xxxxx Xxxxxx Xxxxx Sales Representative 01/30/95
Xxxx Xxxxxx General Manager Pending
In addition to the specific employment agreements listed
above, there
7
56
are employment offer letters that were given to some
employees, which do not commit BioWhittaker to any specific
term of employment or termination benefits. At or prior to
commencing employment, employees are also asked to sign
employment applications which indicate employment is at will
and Confidentiality and Ownership of Inventions Agreements
designed to protect BioWhittaker's trade secrets and
inventions.
TERMINATION AGREEMENTS
Xxxxxx Erie termination agreement proposed, but not accepted
as of August 21, 1997.
SEVERANCE AGREEMENTS
Severance Plan for employees terminated as a result of the
sale of the diagnostic product lines to Xxxxxx-Xxxxxxx.
COMMISSION AGREEMENT PLANS.
There are a total of 12 Sales Representatives, 2 Industrial
Account Managers, 2 Regional Managers and 8 Technical Sales
Representatives (Clonetics) with Commission Agreement Plans,
as well as National Sales Managers Xxxxxx Xxxxxx and Xxxxxx
Xxxxx-Xxxxxx (Clonetics), and International Sales Manager
(Clonetics) Xxxxxxx Xxxxxxxx.
THE FOLLOWING MANAGERS FROM CLONETICS also have Employment
Contracts as noted above which include Commission Plans:
Xxxxxxx Xxxxx
Xxxx Xxxxxxx
Soverin Karmiol
SALARY PLANS
DISCRETIONARY BONUS PLAN
Levels of employees eligible:
Director
Manager
Supervisor
Various Scientific and Professional
1991 LONG-TERM INCENTIVE STOCK OPTION PLAN covers Executives
and Senior / Middle Management but terms of options granted to
executives and to others and at different times differ
slightly. See list of option holders included under Section
3.2(b) of this Disclosure Schedule. ALSO SEE 1994 STOCK OPTION
PLAN FOR NON-EMPLOYEE DIRECTORS.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN (SERP) for the
following
8
57
employees:
Xxxx Xxxxxxxxxx
Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx
BENEFIT PLANS:
SECTION 125 CAFETERIA PLAN
Medical Blue Cross and Blue Shield
of Maryland
Prudential (Calif. Clonetics
Plan)
Dental Blue Cross and Blue Shield
of Maryland
Vision Vision Services Plan
Prescription Card and Mail-in Express Scripts
Group Term Life Ins. Medical Life
Group Universal Life, AD&D Prudential
Short Term Disability Prudential (Non-exempt)
Long Term Disability (Core & Supp) Prudential (All employees)
Travel Accident Ins. Reliance Standard
Health Care Reimb. Acct. Xxxxxxxx, Xxxxxx & Xxxxx
Dependent Xxxx Reimb. Acct. Xxxxxxxx, Xxxxxx & Xxxxx
RETIREMENT PLANS.
Employees Pension Plan (Target Plan).
Savings and Stock Investment Plan (401(k)).
OTHER BENEFIT PLANS:
Vacation and vacation accruals
Sick leave plan
Holidays and Floating Holidays
Educational Assistance
- Change of control employment agreements (See Section 3.2(g)).
- Consulting agreements with Xxxxx Xxxxx and Dr. Xxxx Xxxxxx (which
include rights to potential commissions).
- Equity Compensation Plan Agreement with Xxxx Xxxxxx dated as of
December, 1991.
(o) CONTRACTS: DEBT INSTRUMENTS.
(i) See litigation schedule (Section 3.2(b) of this Disclosure
Schedule) - In the Erie litigation, there is a claim of breach
of a contract for employment and Microbix has alleged that it
had an unwritten contract for supply of material which has
been breached.
9
58
(p) TAXES AND TAX RETURNS.
- Audited through BioWhittaker's taxable year ended October 31,
1994.
- Tax Agreement dated as of September 24, 1991 between
BioWhittaker and Xxxxxxxxx Corporation with amendment dated
October 23, 1991 and indemnification provision related to
such agreement in Section 10.02 of the Anasco Stock Purchase
Agreement.
(r) ENVIRONMENTAL MATTERS.
BioWhittaker has been identified as a de minimis participant
in the Spectron/Galaxy Superfund site. We have been advised
that a settlement is about to be proposed for the de minimis
participants.
4.2 COVENANTS
(a) INTERIM OPERATIONS. (EXCEPTIONS)
(vii) See attached list of capital expenditures.
(ix) Resolution of Microbix dispute could require changes to
the Exclusive Supply Agreement with Xxxxxx and resolution of
the Pennsylvania Regional Tissue Bank case could require
changes to the HCCC agreement.
(x) FASB 123 becomes effective in 1997 as disclosed in
BioWhittaker's most recent SEC Form 10-K. Also, the IRS
notified BioWhittaker that it will consent to a change in tax
accounting methods for inventory. A copy of the Consent
Agreement dated July 16, 1997 has been provided.
10
59
BIOWHITTAKER, INC.
OPEN C.A.R. STATUS REPORT
PERIOD 9 ENDING JULY 27, 1997
DEPT DEPT CAR AMOUNT AMOUNT SPENT BALANCE CAR
NO. NAME NUMBER APPROVED TO DATE OPEN DESCRIPTION
-----------------------------------------------------------------------------------------------------------------------------------
0610 MEDIA 000-0000-000 66,400.00 48,390.06 36,009.96 INTRASEPT FILLING MACHINE INSTALLATION
0610 MEDIA 000-0000-000 10,200.00 6,800.00 3,400.00 500L CONTAINER CONSTRUCTION
0610 MEDIA 000-0000-000 18,000.00 0.00 16,000.00 ERGO ELECTRIC LIFT & EXTENSION PALLET XXXX
0610 MEDIA 000-0000-000 13,000.00 3,860.10 9,139.90 1100L TANK AGITATOR
0610 MEDIA 000-0000-000 32,100.00 3,914.01 28,185.99 FLOOR SCALE-SHUT OFF VALVES DRUM FILLS
0610 MEDIA 000-0000-000 6,790.00 0.00 5,790.00 LINE CLEARANCE
0610 MEDIA 000-0000-000 1,600.00 1,560.00 50.00 AUTOCLAVE CART PARKING STAND
0620 CELLS 000-0000-000 13,500.00 4,464.00 9,036.00 REPLACEMENT SYRINGES XXXXXXX TUBING MACH
0620 CELLS 000-0000-000 8,500.00 3,241.94 5,258.06 GOWNING ROOM CELL SPECIAL LABS
0620 CELLS 000-0000-000 2,781.68 0.00 2,781.68 BWI CELLS SPECIALS LABS
0723 PILOT OPS 171-9729-000 27,800.00 0.00 27,800.00 BAG LEAK TESTING SYSTEM
0733 R&D 000-0000-000 9,589.75 183.49 9,396.26 SERUM FREE CHO MEDIA DEVELOPMENT
0614 B/C CUST SVC 000-0000-000 1,800.00 0.00 1,800.00 "ON HOLD" MESSAGE PROVIDER
0615 STER SVCS 000-0000-000 69,500.00 70,297.80 (797.90) GLASSWARE WASHER
0615 STER SVCS 000-0000-000 2,200.00 0.00 2,200.00 ADDITIONAL BOTTLE CRUSHER
0615 STER SVCS 000-0000-000 8,500.00 0.00 8,500.00 CARTS & ACCESSORIES
0640 HUMAN RESC 000-0000-000 10,785.00 5,392.00 5,393.00 OFFICE FURNITURE XX
0000 OCCUP-EAST 000-0000-000 30,000.00 8,741.48 21,258.52 XXX XXXX XXXX 0
0000 XXXXX-XXXX 000-0000-000 13,500.00 0.00 13,500.00 XXXX 0 XXXXXX XXXX XXXXX XXXXXX
0000 XXXXX-XXXX 000-0000-000 12,000.00 16,667.98 (4,067.98) DESIGN SVCS FOR BWI CAFETERIA/EXEC OFFCS
(ON HOLD)
0672 OCCUP-WEST 000-0000-000 400,700.00 296,066.14 104,633.86 XXXX 000X XXXXXXXX (XXXXXXXX)
0000 XXXXX-XXXX 171-9704-000 256,000.00 279,412.08 (23,412.08) CLONETIC MFG 000-000 XXXX 000X
(AMENDMENT PENDING)
0672 OCCUP-WEST 000-0000-000 50,000.00 48,025.14 1,974.86 ROOFTOP XXXX X/X0 XXXXXXXXXXX
0000 XXXXX-XXXX 000-0000-000 90,000.00 87,700.76 2,299.22 SECOND CHILLER REPLACEMENT
0672 OCCUP-WEST 000-0000-000 450,000.00 36,767.00 414,213.00 WFI STILL & ADDITION
60
BIOWHITTAKER, INC.
OPEN C.A.R. STATUS REPORT
PERIOD 9 ENDING JULY 27, 1997
DEPT DEPT CAR AMOUNT AMOUNT SPENT BALANCE CAR
NO. NAME NUMBER APPROVED TO DATE OPEN DESCRIPTION
---------------------------------------------------------------------------------------------------------------------------
0872 OCCUP-WEST 000-0000-000 3,500.00 3,500.00 0.00 UTILITY RELOCATION DESIGN
0872 OCCUP-WEST 000-0000-000 9,180.00 10,251.17 (1,017.17) 100B CORE RENOVATION (AMENDMENT PENDING)
0872 OCCUP-WEST 000-0000-000 1,700.00 952.30 747.70 100/100B CONNECTING CORRIDOR A/C
0872 OCCUP-WEST 000-0000-000 2,200.00 0.00 2,200.00 XXXX 000X XXXXXXXXXX DOORS
0901 SALES 000-0000-000 45,250.00 8,858.27 38,391.73 REFRIGERATION EQUIPMENT TO SUPPORT SOS
0912 OFFICE AUTO 000-0000-000 77,000.00 36,996.69 41,000.31 BLANKET CAR FOR FY97 PC PURCHASES
1030 VIROLOGY 000-0000-000 5,000.00 4,864.49 135.51 FLOW ROTOR-RETURN PRODUCTION
1030 VIROLOGY 000-0000-000 5,500.00 0.00 5,500.00 SUPERSPEED ROTOR FOR FETLIN PRODUCTION
1348 LAL WALK 000-0000-000 11,300.00 0.00 11,300.00 00 XXXX XXX XXXXXXXXXX XXXX
0000 LAL WALK 000-0000-000 39,000.00 0.00 39,000.00 SCREW CAP UPDATE FOR FD 6000 FAXALL
1348 LAL WALK 000-0000-000 7,330.00 7,368.58 (38.58) 13MM PART FOR WEST CAPPER
1349 LAL-CHINCO 000-0000-000 30,000.00 18,295.79 11,704.21 CHINCOTEAGUE PROCESSING ROOM HVAC
========================================
TOTAL 1,661,006.43 1,010,589.38 850,417.05
61
CLONETICS-BIOWHITTAKER, INC.
OPEN C.A.R. STATUS REPORT
PERIOD ENDING JULY 27, 1997
DEPT DEPT CAR AMOUNT AMOUNT SPENT BALANCE CAR
NO. NAME NUMBER APPROVED TO DATE OPEN DESCRIPTION
---------------------------------------------------------------------------------------------------------------------------
0516 Media 000-0000-000 8,200.00 0.00 8,200.00 Bag Packaging System
0620 Cells 000-0000-000 160,500.00 34,216,42 126,281.58 Mig Equipment for Clonetics 802/603 Core
0620 Cells 171-9704-000 29,000.00 0.00 29,000.00 Speical Lab-Clonetics
0628 Hepatocyte 000-0000-000 19,900.00 3,390.00 16,510.00 Hepatocyte Lab Equipment
0633 Ship Clonetics 000-0000-000 14,200.00 14,691.17 (481.17) 1840 Xxxxx (to be Capitalized Pd 10)
0912 Off Auto 000-0000-000 4,000.00 0.00 4,000.00 Clonetics Web Page
0912 Off Auto 000-0000-000 5,200.00 0.00 5,200.00 Network Remote Access
========== ========= ==========
TOTAL 241,000.00 52,299.59 168,700.41
62
Bio Xxxxxxxxx, Inc.
Individual Grantee Summary
Subsequent Options
Option Option Number of shares
--------------------
Graphics Data Price Granted Exercised Cancelled Available
-------- ---- ----- ------- --------- --------- ---------
Xxxxxxxxxxx/
Steel......... 11/14/91 35,674 9,062 9,062
11/14/91 66,000 64,993 84,993
HB, Xxxxxxx... 11/14/91 35,074 1,380 1,350
Warbler Xxxxxx. 11/14/91 55,010 71,873 31,873
(Name above
level)
------------
Total All Grantees 127,272 127,280
63
BIOWHITTAKER, INC.
INDIVIDUAL GRANTEE SUMMARY
SUBSEQUENT OPTIONS
NUMBER OF SHARES
GRANT OPTION ------------------------------------
GRANTEE DATE PRICE GRANTED EXTENDED CANCELED AVAILABLE
------- ------- ------- ------- -------- -------- ---------
(Name below this line)
Andarre Wile ......... 04/20/97 $0.3750 25,000 5,000
03/17/97 0.7990 20,000 2,000
Xxxxxxx, Xxxxxx ...... 01/13/97 0.1230 1,000 5,000
Xxxxxxx, Xxxx ........ 02/17/97 0.7500 1,000 2,000
Xxxxxx, Xxxxxx ....... 02/17/97 0.7500 2,000 2,000
Barahby, Xxx ......... 02/17/97 0.3750 6,000 5,000
02/17/97 0.7500 2,400 2,000
Xxxxxxxxxx, Xxx ...... 02/19/97 0.7600 1,000 1,000
Xxxxx, Xxxxx ......... 02/17/97 0.7500 1,000 1,000
Xxxxxxxxxx, Xxxx ..... 12/04/91 0.6000 100,000 100,000
03/18/93 0.7600 100,000 100,000
12/18/98 0.7500 100,000 100,000
02/17/97 0.7500 9,000 9,000
Xxxxxxxx, Xxxxxxx .... 02/17/97 0.7500 1,000 1,000
Chara, Xxxxxxx ....... 02/17/97 0.7500 1,000 1,000
Xxxxxx Xxxxxx ........ 02/20/93 0.7500 5,000 1,847 3,333 0
Dirharren, Xxxx ...... 02/17/97 0.7500 100 300
Xxxxxxx, Xxx ......... 02/17/97 0.7500 300 300
Feminc, Xxxxx ........ 08/07/93 0.7500 2,302 2,500
02/17/97 0.1500 300 800
Forrald, Xxxxx ....... 12/03/97 0.7500 19,000 14,000
03/18/93 0.7500 19,000 14,000
02/17/97 0.7500 1,000 19,000
Xxxxxxx, Xxxx ........ 08/14/97 0.3740 2,500 25,000
02/17/97 0.7900 300 300
Xxxxxx, Pal .......... 02/17/97 0.7500 000 000
XX, Xxxxxxx, L. ...... 12/19/97 0.6006 20,000 20,000
02/17/97 0.7500 10,000 19,000
02/17/97 0.7500 1,000 1,000
Xxxxxxxx, Xxxx ....... 02/17/97 0.7500 5,006 300
Jan, Silettery ....... 02/17/97 0.7500 4,000 4,000
Karim, Sov ........... 02/17/97 0.7560 4,000 1,000
64
BIOWHITTAKER, INC.
INDIVIDUAL GRANTEE SUMMARY
SUBSEQUENT OPTIONS
NUMBER OF SHARES
GRANT OPTION -------------------------------------
GRANTEE DATE PRICE GRANTED EXERCISED CANCELLED AVAILABLE
------- ----- ------ ------- --------- --------- ---------
Xxxxx, Xxxxxxx...... 01/01/94 8.0350 1,400 1,000
01/02/95 0.5000 1,000 1,000
01/02/96 7.8250 1,000 1,000
01/02/97 8.1250 5,000 5,000
Lovernek, Xxxxx..... 02/17/97 6.7500 900 900
Luperebeck, Pal..... 02/17/97 6.7500 300 300
Xxxx, Xxxxx......... 02/17/97 6.7500 2,000 2,000
XxXxxxxxx, Xxxxxxx.. 02/20/93 6.3750 1,000 5,000
02/17/95 6.7500 2,000 2,000
McGulin, Xxxxx...... 02/17/97 6.7500 300 300
Medan, Xxxxxx....... 01/17/95 7.7500 1,500 5,000
02/17/97 6.7500 2,000 2,000
XxXxxxxx, Xxxx...... 02/17/97 6.7500 300 300
Xxxxx, Xxxx......... 01/02/91 6.6400 10,000 10,000
02/10/92 6.7500 20,000 20,000
02/17/97 6.7500 3,000 3,000
Xxxxxx, Xxx......... 02/17/97 6.7500 200 200
Patchisk, Xxxxxxx... 02/17/97 6.7500 1,000 1,000
Pescela, Xxxxxx..... 02/20/95 5.1750 2,500 2,500
02/17/97 6.7500 300 300
Xxxxxx, Xxxxxx...... 02/17/95 7.7500 5,000 5,000
02/17/97 6.7500 1,000 1,000
Regiotta, Herb...... 02/17/97 6.7500 1,000 1,000
Xxxxxxxxx, Xxxxxx... 02/20/95 5.1750 2,500 2,500
02/17/97 6.7500 300 300
Rnww, Xxxxxx........ 12/02/91 6.1000 50,000 50,000
02/10/97 6.7500 75,000 75,000
12/10/97 0.6000 50,000 50,000
02/17/97 6.7500 4,000 4,000
Xxxxxxx, Xxxxx...... 08/20/95 5.2750 5,000 5,000
Routshcn, Xxxxxxx... 02/17/97 6.7500 500 500
Schfrafer, Jess..... 02/17/97 6.7500 300 300
Xxxxx, Xxxx......... 01/02/94 6.6250 1,000 1,000
01/20/95 6.5000 1,000 1,000
01/02/96 7.6250 1,000 1,000
01/02/97 6.1250 5,000 5,000
Xxxxxx, Xxxxx....... 04/20/95 7.1750 5,000 5,000
02/17/97 6.7500 2,000 2,000
65
BIOWHITTAKER, INC.
INDIVIDUAL GRANTEE SUMMARY
SUBSEQUENT OPTIONS
NUMBER OF SHARES
GRANT OPTION ------------------------------------
GRANTEE DATE PRICE GRANTED EXTENDED CANCELED AVAILABLE
------- ------- ------- ------- -------- -------- ---------
(Name below this line)
Shobes, Dotte ........ 02/08/97 $0.7500 300 000
Xxxxxxx, Xxxxxx ...... 12/11/95 0.7500 3,000 3,000
Xxxxxxx, Xxxxx ....... 02/17/97 0.7500 1,000 1,000
Xxxxx, Xxx ........... 02/17/97 0.3750 5,600 3,000
02/17/97 0.7560 2,000 2,000
Xxxxxx, Xxxxx ........ 02/17/97 0.7500 1,000 1,000
Xxxxxxxxxxx, Brigota . 04/20/93 0.3750 5,000 5,000
Vehneskey, Chamber ... 04/20/93 0.3750 2,500 2,500
02/17/97 0.7500 1,000 1,000
Xxxxxx, Xxxxxx ....... 12/02/91 0.8000 50,000 50,000
03/16/93 0.7600 75,000 71,000
12/10/93 0.9000 100,000 100,000
02/17/97 0.7500 9,000 9,000
(New above this line)
-----------------------------------------------------------------------------
640,100 1,111 1,333 640,000
