-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, L0ElEVI3+CvB+bCR3guAPfxQgcOAhE2rpQ718KOGgDdR6LIOzQmX+WKVE/L6rxbJ TMOnUP97bnicOqtL65DbXQ== 0000950123-00-003844.txt : 20000420 0000950123-00-003844.hdr.sgml : 20000420 ACCESSION NUMBER: 0000950123-00-003844 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000419 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NORTH AMERICAN VACCINE INC CENTRAL INDEX KEY: 0000856573 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 980121241 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-49421 FILM NUMBER: 604884 BUSINESS ADDRESS: STREET 1: 10150 OLD COLUMBIA ROAD CITY: COLUMBIA STATE: MD ZIP: 21046 BUSINESS PHONE: 4103097100 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BIOCHEM PHARMA INC CENTRAL INDEX KEY: 0000867202 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 000000000 STATE OF INCORPORATION: E6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 275 ARMAND-FRAPPIER BLVD CITY: LAVAL QUEBEC STATE: E6 BUSINESS PHONE: 5146811744 MAIL ADDRESS: STREET 1: 275 ARMAND FRAPPIER BLVD CITY: LAVAL QUEBEC STATE: E6 SC 13D/A 1 AMENDMENT TO SCHEDULE 13D 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 12)* North American Vaccine, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, No Par Value - -------------------------------------------------------------------------------- (Title of Class of Securities) 657-201-109 - -------------------------------------------------------------------------------- (CUSIP Number) Charles-A. Tessier, Vice-President, Legal Affairs and General Counsel BioChem Pharma Inc., 275 Armand Frappier Boulevard, Laval, Quebec H7V 4A7 Canada - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) April 17, 2000 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box / /. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON BIOCHEM PHARMA INC. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS* N/A - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) / / - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Laval, Quebec, Canada - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF SHARES 14,326,418 BENEFICIALLY ------------------------------------------------------- OWNED BY 8. SHARED VOTING POWER EACH REPORTING N/A PERSON ------------------------------------------------------- WITH 9. SOLE DISPOSITIVE POWER 14,326,418 ------------------------------------------------------- 10. SHARED DISPOSITIVE POWER N/A 3 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,326,418 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* N/A - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 40% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! 3 4 This amendment Number 12 amends and supplements the Statement on Schedule 13D (the "Schedule 13D") filed on behalf of BioChem Pharma Inc. ("BioChem"), a publicly-owned Canadian pharmaceutical company incorporated under the laws of Canada, relating to the common stock, no par value per share, of North American Vaccine, Inc. (the "Company"). Capitalized terms used and not defined in this Amendment have the meanings set forth in the Schedule 13D as amended. Item 6 of the Schedule 13D is hereby amended and supplemented to add the following: Item 6. Contracts, Arrangements, Understandings or Relationships With respect to Securities of the Issuer. The Company approached BioChem for assistance in repaying outstanding amounts under a line of credit that had been extended by Bank of America, N.A. ("Bank of America") and guaranteed by Baxter, as well as to secure additional working capital in order to finance its operations through either the closing of the Arrangement or until the Share Exchange Agreement is terminated by the parties thereto. BioChem, the Company, Baxter, Frost and Bank of America entered into an Assignment, Acceptance and Amendment Agreement dated April 17, 2000, whereby BioChem agreed to provide up to $40 million in financing for Company operations through June 30, 2000 (the "Transitional Financing"). The Transitional Financing includes: (i) BioChem's assumption of the line of credit previously provided by Bank of America and guaranteed by Baxter (the "Original Line") under which the Company had drawn approximately $20 million; and (ii) up to an additional $20 million. Amounts outstanding under the Transitional Financing accrues interest at a rate of 15% per annum and is subject to a deferred financing fee of $10 million. The Transitional Financing, including the deferred financing fee, is repayable in full on June 30, 2000 or upon a change in control of the Company, whichever occurs first. Baxter has consented to the Transitional Financing and is being released from its guarantee under the Original Line. Repayment of the Transitional Financing is secured by various assets of the Company. On April 17, 2000, Baxter and the Company signed Amendment No. 1 to the Share Exchange Agreement which, among other things, extends the date by which the Arrangement must be completed to June 30, 2000 and amends the per share consideration to be paid by Baxter to U.S.$6.73 per share of Company common stock, payable in Baxter stock and cash. On April 17, 2000, BioChem, Frost, IVAX and Frost LP executed Amendment Number 1 to the Shareholder Agreement, whereby each of the parties to the Shareholder Agreement has agreed to support the amended offer of U.S.$6.73 per share of Company common stock, payable in Baxter stock and cash. In addition, BioChem, Frost, IVAX and Frost LP each also executed an amended Proxy which takes into account the amendments to the Share Exchange Agreement. 4 5 The description of the agreements contained herein is not intended to be complete and is qualified in its entirety by reference to such agreements which are attached hereto as Exhibits 99.1 and 99.2 and incorporated herein by reference. Item 7. Material to be Filed as Exhibits. 99.1. Assignment, Acceptance and Amendment Agreement, dated April 17, 2000. 99.2. Amendment No. 1 to Shareholder Agreement dated as of April 17, 2000 among Baxter International Inc., BioChem Pharma Inc., Phillip Frost, M.D., Frost-Nevada, Limited Partnership and IVAX Corporation. 99.3. Press release dated April 17, 2000. 5 6 Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. BIOCHEM PHARMA INC. By: /s/ Charles-A. Tessier Charles-A. Tessier Vice-President, Legal Affairs and General Counsel 6 7 EXHIBIT INDEX 99.1. Assignment, Acceptance and Amendment Agreement, dated April 17, 2000. 99.2. Amendment No. 1 to Shareholder Agreement dated as of April 17, 2000 among Baxter International Inc., BioChem Pharma Inc., Phillip Frost, M.D., Frost-Nevada, Limited Partnership and IVAX Corporation. 99.3. Press release dated April 17, 2000. 7 EX-99.1 2 ASSIGNMENT 1 EXHIBIT 99.1 ASSIGNMENT, ACCEPTANCE AND AMENDMENT AGREEMENT DATED APRIL 17, 2000 Reference is made to the letter loan agreement dated as of November 1, 1999 (as amended, renewed, extended, amended and restated, supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"; the terms defined therein, unless otherwise defined herein, being used herein as therein defined) between North American Vaccine, Inc., a Canadian corporation (the "BORROWER"), and Bank of America, N.A. (the "ORIGINAL LENDER"). WHEREAS, the Original Lender wishes to sell and assign all of its rights and obligations under the Loan Documents to BioChem Pharma Inc., a Canadian corporation (the "NEW LENDER"), and the Borrower wishes to consent to such sale and assignment upon the terms set out herein; and WHEREAS, upon such sale and assignment, the Original Lender will release the Guaranty and the Guarantor will release the Reimbursement Agreement on the terms set out herein. NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree, with effect from the Effective Date (as defined in Section 1), as follows: 1. Upon receipt of the Payoff Amount (as defined below) by the Original Lender in immediately available funds delivered in accordance with wiring instructions delivered by the Original Lender to the New Lender (or its representatives), the Original Lender hereby agrees to sell and assign, without recourse and without representation or warranty (except as to the representations and warranties expressly made by Original Lender in paragraph 2 below) to the New Lender, and the New Lender hereby agrees to purchase and assume from the Original Lender, all of the Original Lender's rights and obligations under the Credit Agreement and the other Loan Documents. The Borrower hereby consents to such sale and assignment from the Original Lender to the New Lender. This Agreement shall become effective on April 17, 2000 (the "EFFECTIVE DATE"). The aggregate amount owed to the Original Lender with respect to the Loans (inclusive of principal, interest, commitment fees, other fees, expense reimbursements and all other amounts owed to the Original Lender in respect to such indebtedness) through and including the Effective Date is US$19,549,190.40 (the "PAYOFF Amount"). In the event that the Payoff Amount is not received on or prior to 4:00 p.m. (Charlotte, North Carolina time) on April 17, 2000, the Loans will continue to accrue interest (at the Base Rate plus 2%) at a per diem amount of US$5933.58 for each day after April 17, 2000 that the Original Lender has not received payment in full prior to 4:00 p.m (Charlotte, North Carolina time) in immediately 2 available funds in accordance with the wiring instructions delivered by the Original Lender. After giving effect to such sale and assignment, the amount of the Loans owing to the New Lender will be US$19,549,190.40. 2. The Original Lender (i) represents and warrants that it is the legal and beneficial owner of the interest or interests being assigned by it hereunder; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; and (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto. 3. The New Lender (i) confirms that it has received a copy of the Credit Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Original Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; and (iii) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Credit Agreement and the other Loan Documents are required to be performed by it as the Lender. 4. (i) The New Lender shall be a party to the Credit Agreement and the other Loan Documents and, to the extent provided in this Agreement, have the rights and obligations of the Lender thereunder and (ii) the Original Lender shall, to the extent provided in this Agreement, relinquish its rights and be released from its obligations under the Credit Agreement and the other Loan Documents (other than its rights under the Loan Documents that are specified under the terms of such Loan Documents to survive the payment in full of the obligations of the Borrower under the Loan Documents to the extent any claim thereunder relates to an event arising prior to the Effective Date) and the Original Lender shall cease to be a party thereto. 5. From and after the Effective Date, the Borrower shall make all payments under the Credit Agreement in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees with respect thereto) to the New Lender. The Original Lender and the New Lender shall make all appropriate adjustments in payments under the Credit Agreement for periods prior to the Effective Date. 6. On the Effective Date, without any action on the part of the Guarantor or the Borrower, (i) the Guaranty will be terminated and the Guarantor unconditionally and irrevocably released, and (ii) the Reimbursement Agreement, the Security Agreement dated -2- 3 November 1, 1999 between the Guarantor and the Borrower and the Patent and Trademark Assignment and Security Agreement, dated November 1, 1999 between the Guarantor and the Borrower will each be terminated and the Borrower unconditionally and irrevocably released. The parties further agree that the Guarantor is a party to this Agreement solely for the purposes of this Section 6, and the Guarantor shall have no rights or liabilities under this Agreement other than those set out in this Section 6 and Sections 12 and 13. 7. Immediately following the sale and assignment under Sections 1 to 5, and the releases and terminations under Section 6, the New Lender, Dr. Phillip Frost ("FROST") and the Borrower agree that the Credit Agreement shall be assigned as set forth in Part I of Schedule A and amended as set forth in Part II of Schedule A. 8. The Borrower represents and warrants to each of the New Lender and Frost as follows: (a) the representations and warranties contained in each Loan Document are correct on and as of the date hereof, after giving effect to this Agreement, as though made on and as of the date hereof, other than any such representations or warranties that by their terms, refer to a specific date, in which case, as of such specific date; and (b) no Default or Event of Default which has not been waived has occurred and is continuing under the Credit Agreement, as amended hereby, or would result from this Agreement or the consummation of the transactions contemplated hereby. 9. Without prejudice to any Default or Event of Default arising after the date hereof: (a) with respect to any Default or Event of Default (other than one under Section 5(k) of the Credit Agreement) which is continuing, which event does not have a grace or cure period and which event arose on or before the date hereof, the New Lender and Frost hereby waive their respective rights under the last paragraph of Section 5 of the Credit Agreement; and (b) with respect to any Default or Event of Default (other than one under Section 5(k) of the Credit Agreement) which is continuing, which event has a grace or cure period and which event arose on or before the date hereof, such grace or cure period shall be deemed to commence on the date hereof. 10. (a) Each reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or words like import referring to the Credit -3- 4 Agreement, and each reference in each of the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Agreement. (b) The Credit Agreement and each of the other Loan Documents, as specifically amended by this Agreement, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. (c) The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy by the New Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. (d) This Agreement shall become effective on the Effective Date; provided that the Effective Date shall be deemed modified to be the actual date of the sale and assignment to the extent the parties do not close on April 17, 2000. (e) The Borrower agrees to pay on demand all costs and expenses of the Original Lender and the New Lender in connection with the preparation, execution, delivery and administration, modification and amendment of this Agreement and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Original Lender and the New Lender) in accordance with the terms of Section 6(i) of the Credit Agreement. In addition, the Borrower shall pay any and all stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other instruments and documents to be delivered hereunder, and agrees to hold the New Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes. (f) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. (g) This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all -4- 5 of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by telecopier shall be effective as delivery of an original executed counterpart of this Agreement. -5- 6 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers. THE ORIGINAL LENDER BANK OF AMERICA, N.A. as Original Lender By: /s/ Larry J. Gordon ----------------------------------- Title: Date: THE NEW LENDER BIOCHEM PHARMA INC. as New Lender By: /s/ Fred Andrew ----------------------------------- Title: Date: By: /s/ Charles-A. Tessier ----------------------------------- Title: Date: THE BORROWER NORTH AMERICAN VACCINE, INC. as Borrower By: /s/ Randal Chase ----------------------------------- Title: Date: -6- 7 THE GUARANTOR BAXTER INTERNATIONAL INC. as Guarantor By: /s/ Timothy B. Anderson ----------------------------------- Title: Date: FROST /s/ Phillip Frost, M.D. ----------------------------------- Dr. Phillip Frost Date: -7- 8 SCHEDULE A PART I ASSIGNMENT OF CREDIT AGREEMENT 1. In consideration of the sum of US$1 paid by Frost to the New Lender (the receipt and sufficiency of which is hereby acknowledged), the New Lender hereby sells and assigns, without recourse except as to the representations and warranties made by it herein, to Frost, and Frost hereby purchases and assumes from the New Lender, an interest in and to the New Lender's rights and obligations under the Credit Agreement as of the date hereof as specified below: Amount of Commitment Assigned: $5,000,000 Amount of Loans Assigned: $ 0
After giving effect to such sale and assignment, the amount of the Loans owing to the New Lender will be US$19,549,190.40. 2. The New Lender (i) represents and warrants that it is the legal and beneficial owner of the interest or interests being assigned by it under the Assignment, Acceptance and Amendment Agreement dated April 17, 2000 and that such interest or interests are free and clear of any adverse claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; and (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto. 3. Frost (i) confirms that he has received a copy of the Credit Agreement, together with such other documents and information as he has deemed appropriate to make his own credit analysis and decision to enter into this Agreement; (ii) agrees that he will, independently and without reliance upon the New Lender and based on such documents and information as he shall deem appropriate at the time, continue to make his own credit decisions in taking or not taking action under the Credit Agreement; and (iii) agrees that he will perform in accordance with their terms all of the obligations that by the terms of the Credit Agreement are required to be performed by him as the Lender to the extent of the obligations assumed by him under this Agreement. A-1 9 4. (i) Frost shall be a party to the Credit Agreement and, to the extent provided in this Agreement, have the rights and obligations of the Lender thereunder and (ii) the New Lender shall, to the extent provided in this Agreement, relinquish its rights and be released from its obligations under the Credit Agreement (other than its rights and obligations under the Loan Documents that are specified under the terms of such Loan Documents to survive the payment in full of the obligations of the Borrower under the Loan Documents to the extent any claim thereunder relates to an event arising prior to the Effective Date). 5. The Borrower shall make all payments under the Credit Agreement in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees with respect thereto) to Frost. 6. It is the intention of the New Lender, the Borrower and Frost that Frost shall not have any right or interest in or to any of the Security Agreement, the IP Security Agreement and the Pledge Agreement (the "SECURITY DOCUMENTS"). The New Lender agrees with Frost that, to the extent the New Lender receives or realizes any proceeds under or in respect of the Security Documents or the collateral covered thereby or subject thereto, the New Lender shall, after deduction of all reasonable costs and expenses incurred by the New Lender in the realization of such proceeds, pay to Frost an amount equal to Frost's Share of such net proceeds. For the purpose of this paragraph, "FROST'S SHARE" shall mean the result (expressed as a percentage) of dividing the aggregate outstanding principal amount of Loans made by Frost by the aggregate outstanding principal amount of all Loans made by the New Lender and Frost, in each case calculated on the date of receipt of such proceeds by the New Lender. New Lender covenants and agrees for the benefit of Frost that, upon the occurrence and during the continuance of an Event of Default under the Credit Agreement, it will take all commercially reasonable action to enforce the Lender's rights thereunder. A-2 10 SCHEDULE A PART II AMENDMENTS TO CREDIT AGREEMENT 1. In the first paragraph, the words "BANK OF AMERICA, N.A. ("Lender") is" shall be deleted and replaced with the words "BIOCHEM PHARMA INC. ("Lender") and DR. PHILLIP FROST ("Frost") are" 2. Section 1(a) (other than the heading) shall be deleted in its entirety and replaced with the words: "Subject to the terms and conditions set forth herein, Lender and Frost, on a several (and not joint) basis, agree to make available to Borrower until the Maturity Date a revolving line of credit providing for loans ("Loans") in an aggregate principal amount not exceeding at any time US$45,000,000; provided, however, Lender shall not be obligated to make Loans in an aggregate principal amount exceeding US$40,000,000 (the "BioChem Commitment") and Frost shall not be obligated to make Loans in an aggregate principal amount exceeding US$5,000,000 (the "Frost Commitment", and together with the BioChem Commitment, the "Commitments" and each a "Commitment ") and provided further, however, that Frost shall not, and shall not be obligated to, make any Loans hereunder until the BioChem Commitment has been drawn down in full by the Borrower and remains outstanding. Subject to the foregoing limits, Borrower may borrow, repay and reborrow Loans with until the Maturity Date.". 3. Section 1(b) (other than the heading) shall be deleted in its entirety and replaced with the words: "Borrower may request that Loans be made by irrevocable notice to be received by Lender or Frost (as the case may be) not later than 11:00 a.m. on the third Business Day before the day of the proposed Loan, or such shorter period as Lender or Frost (as the case may be) may agree. Such request may not be made as more frequently than weekly, and shall be accompanied by details of the proposed use by Borrower of such Loan.". 4. The first two paragraphs of Section 1(c) (other than the heading) shall be deleted in their entirety and replaced with the words: "Interest on the unpaid principal amount of each Loan shall accrue monthly from the date of the making thereof until the principal amount thereof shall be repaid in A-3 11 full at a rate of 15% per annum and shall be payable monthly in arrears and on the repayment or maturity of each Loan, by acceleration or otherwise.". 5. In Section 1(c), in the third paragraph, the words "Base Rate" shall be deleted and replaced with the words "rate specified in the preceding paragraph". 6. In Section 1(c), in the fourth paragraph, after the word "Lender" the words "or Frost" shall be added. 7. In Section 1(d) the first sentence shall be deleted in its entirety and replaced with the words: "The Loans and all payments thereon shall be evidenced by Lender's and Frost's (as the case may be) loan accounts and records; provided, however, that upon the request of Lender or Frost (as the case may be), the Loans of Lender or Frost (as the case may be) may be evidenced by grid promissory notes (each a "Note") in the form of Exhibit B hereto, instead of or in addition to such loan accounts and records.". 8. In Section 1(e), paragraphs (i) and (ii) shall be deleted in their entirety and replaced with the words: "(i) BioChem Deferred Funding Fee. The Borrower shall pay to Lender a deferred funding fee of $10,000,000 on the Maturity Date. (ii) Frost Deferred Funding Fee. Providing at least one Loan has been made by Frost on or before the Maturity Date, the Borrower shall pay to Frost a non-assignable and non-transferrable deferred funding fee of $1,250,000 on the Maturity Date. (iii) Frost Commitment Fee. If no Loan has been made by Frost on or before the Maturity Date, the Borrower shall pay to Frost a commitment fee of $50,000 on the Maturity Date.". 9. In Section 1(f), the second paragraph shall be deleted in its entirety and replaced with the words: "Borrower shall make (i) all payments to Lender required hereunder not later than 1 p.m. on the date of payment in same day funds in United States Dollars to the bank of Lender located at Royal Bank of Canada, 3100 Le Carrefour Blvd, Laval, Quebec Canada, H7T 2K2, transit number: 02301, account number: 406-610-6 or such other bank or address as Lender may from time to time designate in writing and (ii) all payments to Frost required hereunder not later than 1 p.m. on the date A-4 12 of payment in same day funds in United States Dollars to the bank of Frost located at such bank or address as Frost may from time to time designate in writing.". 10. In Section 1(f): (a) in the third paragraph, each occurrence of the word "Lender" shall be deleted and replaced with the words "Lender or Frost (as the case may be)"; and (b) in line fourteen, after the words "is organized" the words "or resident" shall be added. 11. Section 1(g) shall be deleted in its entirety and replaced with the words: "PREPAYMENTS. Borrower may, upon same-day notice, prepay the Loans on any Business Day. Prepayments must be accompanied by a payment of interest on the amount so prepaid. Prepayments must be in a principal amount of at least $500,000 or a multiple of $100,000 in excess thereof. If any prepayment is made at a time when Loans from Lender and Frost are outstanding, such prepayment of principal and interest shall be paid to Lender and Frost pro rata to the aggregate outstanding amount of their respective Loans". 12. In Section 2(c), paragraph (i), the words "and Guarantor" shall be deleted and replaced with the words "or Frost". 13. In Section 3, in the first line, after the word "Lender" the words "and Frost" shall be added. 14. In Section 3(f): (a) in the first line, the word "solely" shall be deleted; and (b) in the second line, after the word "Borrower" the words "or for such other purposes as Lender or Frost (as the case may be) may approve" shall be added. 15. In Section 3(j), in the first line, after the word "Lender" the words "or Frost" shall be added. 16. In Section 3(l) the words "and Guarantor" shall be deleted. A-5 13 17. In Section 4(a), in the first line, after the word "Lender" the words "and, if Frost shall so request, to Frost" shall be added. 18. Section 4(b)(ii) shall be deleted in its entirety and replaced with the words: "(ii) comply with all applicable laws, rules, regulations and orders, such compliance to include, without limitation, compliance with ERISA, the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970, Environmental Laws and Environmental Permits, in each case the violation of which could result in a Material Adverse Effect.". 19. In Section 4(b)(v) after the word "Lender" the words "and Frost" shall be added. 20. In Section 4(b)(vi): (a) in the first line, the words "and (B)" shall be deleted and replaced with the words ", (B) all of its stock and other collateral subject to the Pledge Agreement and (C); (b) in the fourth line, after the word "Lender" the words "and Frost" shall be added; (c) in the fifth line, after the words "IP Security Agreement" the words ", the Pledge Agreement" shall be added; and (d) in the last line, the word "and" shall be deleted. 21. In Section 4(b)(vii) the full stop at the end shall be deleted and replaced with the words "; and", and the following paragraphs shall be added: "(viii) preserve and maintain its existence and legal structure, provided, however, that the Borrower and its Subsidiaries may consummate any merger or consolidation permitted under Section 4(c) (iii); and (vix) keep true records and books of account in which entries will be made of all dealings or transactions in relation to its business and affairs in accordance with generally accepted accounting principles, to the extent applicable, applied on a consistent basis.". 22. In Section 4(c)(i) the full stop at the end shall be deleted and replaced with the words " and (C) Indebtedness in an aggregate amount of up to $5,000,000 A-6 14 provided such Indebtedness is subordinated to the Indebtedness under the Loan Documents in a manner reasonably satisfactory to Lender and Frost". 23. In Section 4(c), paragraph (iii), the words "(other than Guarantor or any Affiliate Guarantor)" shall be deleted. 24. After Section 4(c)(xii) the following paragraphs shall be added: "(xiii) ORGANIZATIONAL DOCUMENTS. Amend, modify, restate or supplement its Certificate of Incorporation or Bylaws if such action could reasonably be expected to adversely affect the rights of the Lender under the Credit Agreement, the IP Security Agreement, the Pledge Agreement or the Security Agreement. (xiv) SUBSIDIARIES. Form, create or acquire any Subsidiary or permit any Person other than the Borrower or a wholly owned Subsidiary to hold an equity interest in any Subsidiary, other than pursuant to the Pledge Agreement. (xv) PARTNERSHIPS, ETC. Become a general partner in any general or limited partnership or joint venture other than any Subsidiary the sole assets of which consist of its interest in such partnership or joint venture." 25. In Section 5(g) after each occurrence of the word "Lender" the words "and Frost" shall be added. 26. Section 5(h) shall be deleted in its entirety and replaced with the words "Intentionally Omitted". 27. In Section 5(m) after the words "any party thereto" the words "or terminated automatically in accordance with its terms; provided, however, that (i) if the date by when the Effective Time (as defined in the North American Vaccine Acquisition Agreement) shall have occurred has been extended pursuant to Section 9.01(b) of the North American Vaccine Acquisition Agreement, it shall not be an Event of Default under this Section 5(m) until such extended date; or (ii) in any other circumstance, it shall not be an Event of Default under this Section 5(m) until 15 calendar days have elapsed" shall be added. 28. In Section 5(o) the full stop at the end shall be deleted and replaced with the words "; or", and the following paragraph shall be added: "(p) Rejection by UK authorities of NeisVac-C(TM) application.". A-7 15 29. In the last paragraph of Section 5: (a) the words "Upon the occurrence of an Event of Default, Lender may declare the Commitment to be terminated, whereupon the Commitment shall be terminated," shall be deleted and replaced with the words: "Upon the occurrence of an Event of Default, which Event of Default (other than any of the events specified in Sections 5(i),(j) or (m) above)) has not been cured within 10 calendar days thereof, Lender or Frost may declare its or his respective Commitment to be terminated, whereupon such Commitment shall be terminated,"; and (b) in line eight, the word "Commitment" shall be deleted and replaced with the word "Commitments". 30. In Section 6(b) the words "Charlotte, North Carolina" shall be deleted and replaced with the words "Quebec, Canada". 31. Sections 6(c) and (d) shall be deleted in their entirety and replaced with the words "Intentionally Omitted". 32. In Section 6(f): (a) in the second line, after the word "Lender" the words "or Frost (as the case may be)" shall be added; (b) in the fourth line, after the word "Lender" the words "and Frost" shall be added; and (c) in the second line, after the word "Lender" the words "or Frost (as the case may be)" shall be added. 33. In Section 6(h): (a) in the third line, after the word "LENDER" the words "OR FROST (AS THE CASE MAY BE)" shall be added; (b) in the ninth line, the words "(B) GUARANTOR OR (C)" shall be deleted and replaced with the words "OR (B)"; and (c) the final two sentences shall be deleted and replaced with the words: A-8 16 "Borrower agrees to execute any documents reasonably requested by Lender or Frost (as the case may be) in connection with any such assignment. All information provided by or on behalf of Borrower to Lender or its affiliates or Frost may be furnished by Lender or Frost to Lender's affiliates and to any actual or proposed assignee or participant.". 34. In Section 6(i) after each occurrence of the word "Lender" the words "or Frost (as the case may be)" shall be added. 35. In Section 6(m) the word "AND LENDER" shall be deleted and replaced with the words ", LENDER AND FROST" shall be added. 36. In Exhibit A, the following definitions shall be deleted: Base Rate Base Rate Loan Breakage Costs Federal Funds Rate Guaranty Event of Default Guaranty Obligation Interest Period Loan Documents Maturity Date Offshore Rate Offshore Rate Loan; and the following definitions shall be added: Environmental Law: Any Federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, writ, judgment, injunction or decree or any judicial or agency interpretation, policy or guidance (in the case of the latter, only to the extent compliance is legally compulsory) relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials. Environmental Permit: Any permit, approval, identification number, license or other authorization required under any Environmental Law. A-9 17 Hazardous Materials: (a) Petroleum or petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon gas and (b) any other chemical, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law. Loan Documents: This Agreement, the Security Agreement, the IP Security Agreement, the Pledge Agreement and any promissory note, certificate, fee letter, financing statement and other instrument, document or agreement delivered in connection with this Agreement or the Security Agreement or the IP Security Agreement or the Pledge Agreement. Maturity Date: June 30, 2000, or such earlier date on which the Commitments may terminate in accordance with the terms hereof, provided, however, that (i) if the date by when the Effective Time (as defined in the North American Vaccine Acquisition Agreement) shall have occurred has been extended pursuant to Section 9.01(b) of the North American Vaccine Acquisition Agreement to a date after June 30, 2000, the Maturity Date shall be deemed to be extended to such later date, or (ii) if a Default under Section 5(m) has occurred and the grace period under such Section has not expired on or before June 30, 2000, the Maturity Date shall be deemed to be extended to the end of such grace period. Pledge Agreement: The Pledge Agreement, if any, between the Borrower and Lender with respect to certain stock of Borrower and its Subsidiaries. 37. In Exhibit A, in the definition of Business Day: (a) the words "State of North Carolina" shall be deleted and replaced with the words "Quebec, Canada"; and (b) the words "and, if such day relates to any Offshore Rate Loan, means any such day on which dealings in dollar deposits are conducted by and between banks in the offshore dollar interbank market" shall be deleted. A-10 18 38. In Exhibit A, in the definition of Change of Control, the full stop at the end shall be deleted and replace with the words "or (d) upon the completion of the North American Vaccine Acquisition." 39. In Exhibit A, in the definition of North American Vaccine Acquisition Agreement, the words "Agreement and Plan of Merger to be" shall be deleted and replaced with the words "Share Exchange Agreement dated as of November 17, 1999, as amended by Amendment No. 1 to Share Exchange Agreement dated as of April 17, 2000". 40. In Exhibit A, in the definition of Principal Shareholder, the words "Guarantor," shall be deleted. 41. Exhibit B shall be deleted in its entirety and replaced with the attached Exhibit. * A-11 19 EXHIBIT TO SCHEDULE A TO ASSIGNMENT, ACCEPTANCE AND AMENDMENT AGREEMENT FORM OF PROMISSORY NOTE $[40][5],000,000 Dated: April __, 2000 FOR VALUE RECEIVED, the undersigned, NORTH AMERICAN VACCINE, INC., a Canadian corporation ("Borrower"), hereby promises to pay to the order of [BIOCHEM PHARMA INC. ("LENDER")] [DR. PHILIP FROST ("FROST")] the principal sum of [FORTY] [FIVE] Million Dollars (US$ [40] [5],000,000) or, if less, the aggregate unpaid principal amount of all Loans made by [LENDER] [FROST] to Borrower pursuant to the letter agreement dated as of November 1, 1999 between Borrower and Bank of America, N.A.("BoA"), as assigned and amended pursuant to the assignment, acceptance and amendment agreement dated April ___, 2000 between Borrower, Lender, Frost, BoA and Baxter International Inc. (as so assigned and amended, and as it may be otherwise amended, restated, extended, supplemented or otherwise modified from time to time, the "Agreement") on the Maturity Date. [Lender][Frost] is authorized to endorse the amount and the date of each Loan made by [Lender][Frost] and each payment of principal with respect thereto on the schedule annexed hereto and made a part hereof, or on continuations thereof which shall be attached hereto and made a part hereof; provided that any failure to so endorse such information on such schedule or continuation thereof or any error in doing so shall not limit or otherwise affect any obligation of Borrower under the Agreement or this promissory note. This promissory note is one of the Notes referred to in, and is entitled to the benefits of, the Agreement, which Agreement, among other things, contains provisions for acceleration of the maturity of the Loans evidenced hereby upon the happening of certain stated events and also for prepayments on account of principal of the Loans prior to the maturity thereof upon the terms and conditions therein specified. Unless otherwise defined herein, terms defined in the Agreement are used herein with their defined meanings therein. This promissory note shall be governed by, and construed in accordance with, the laws of the State of New York. NORTH AMERICAN VACCINE, INC. By: ------------------------------------- Name: Title: A-12 20 ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF PRINCIPAL UNPAID AMOUNT OF PAID PRINCIPAL NOTATION DATE LOAN OR PREPAID BALANCE MADE BY ---- ---- ---------- ------- -------
A-13 EX-99.2 3 AMENDMENT #1 TO SHAREHOLDER AGREEMENT 1 EXHIBIT 99.2 AMENDMENT NO. 1 TO SHAREHOLDER AGREEMENT Amendment No. 1 dated as of April 17, 2000 (this "AMENDMENT") to the Shareholder Agreement dated as of November 17, 1999 (the "SHAREHOLDER AGREEMENT") among Baxter International Inc., a Delaware corporation ("Parent"), and the undersigned shareholders (each, a "SHAREHOLDER") of North American Vaccine, Inc., a corporation existing under the federal laws of Canada ("COMPANY"). RECITALS WHEREAS, Parent and the Shareholders desire to amend the Shareholder Agreement as set forth in this Amendment; WHEREAS, concurrently with the execution of this Amendment, Parent, Company and Neptune Acquisition Corp., an unlimited liability company existing under the laws of the Province of Nova Scotia and a wholly owned subsidiary of Parent ("ACQUIRECO"), have entered into Amendment No. 1 to the Share Exchange Agreement dated as of November 17, 1999 among Parent, Acquireco and Company; NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows: 1. The first recital of the Shareholder Agreement is hereby amended and restated in its entirety to read as follows: "WHEREAS, pursuant to a Share Exchange Agreement dated as of November 17, 1999 by and among Parent, Neptune Acquisition Corp., an unlimited liability company existing under the laws of the Province of Nova Scotia and a wholly owned subsidiary of Parent ("ACQUIRECO") and Company, as amended by Amendment No. 1 dated as of April 17, 2000 (such agreement, as so amended, is hereinafter referred to as the "SHARE EXCHANGE AGREEMENT"), Parent has agreed to exchange the outstanding securities of Company pursuant to an exchange by Acquireco of all of the capital stock of the Company (the "ARRANGEMENT"), in which each outstanding share of capital stock of Company (the "COMPANY SHARES") will be exchanged for cash and shares of common stock of Parent (the "PARENT SHARES") as set forth in the Share Exchange Agreement (the "TRANSACTION");" 2. This Amendment shall be deemed an amendment to the Shareholder Agreement and shall become effective when executed by Parent and the Shareholders as required by Section 10 of the Shareholder Agreement. Except as expressly amended pursuant to this Amendment, the Shareholder Agreement shall continue in full force and effect. 2 3. This Amendment shall be governed by, construed and enforced in accordance with the internal laws of the State of New York without giving effect to the principles of conflicts of law thereof. 4. This Amendment may be executed in several counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement. 2 3 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above by their respective officers thereunto duly authorized. BAXTER INTERNATIONAL INC. By:/s/ Timothy B. Anderson ------------------------------------------ Name: Title: 3 4 BIOCHEM PHARMA INC. By:/s/ Charles-A. Tessier ------------------------------------------ Name: Title: By:/s/ Fred Andrew ------------------------------------------ Name: Title: 5 FROST-NEVADA LIMITED PARTNERSHIP By:/s/ David Moskowitz ------------------------------------------ Name: Title: 6 SHAREHOLDER /s/ David Moskowitz --------------------------------------------- (Signature) n/a --------------------------------------------- (Signature of Spouse) n/a --------------------------------------------- (Print Name of Shareholder) 3500 Lakeside Court, Suite 200 --------------------------------------------- (Print Street Address) Reno, Nevada 89509 --------------------------------------------- (Print City, State and Zip) (610) 640-9790 --------------------------------------------- (Print Telephone Number) 59-294-9083 --------------------------------------------- (Social Security or Tax I.D. Number) 7 IVAX CORPORATION By:/s/ Phillip Frost, M.D. ------------------------------------------ Name: Title: EX-99.3 4 PRESS RELEASE 1 Exhibit 99.3 SOURCE: BioChem Pharma Inc. DATE: APRIL 17, 2000 SUBJECT: NEWS -- For Immediate Release BioChem Pharma Announces Amendments to its Agreements with Baxter International, Inc. Laval, Quebec, Canada -- BioChem Pharma Inc. (NASDAQ: BCHE: TSE: BCH) today announced amendments to its agreements with Baxter International, Inc. (NYSE: BAX)("BAXTER") concerning BAXTER's acquisition of North American Vaccine, Inc. (AMEX: NVX)("NAVA"). The amendments, which were made to allow for a later than expected closing date, provide for an adjustment in the purchase price and secure financing of NAVA's working capital requirements until closing. The proceeds of the financing will principally be used to repay existing short-term borrowings, to continue building NAVA's inventory of meningitis C vaccine, and to meet other working capital requirements. The amended agreements call for the transaction to close by June 30, 2000. BioChem Pharma has agreed to support an amended offer of U.S.$6.73 per NAVA share (U.S.$7 in the original agreement), payable in BAXTER stock and cash. In addition, BioChem Pharma has made a U.S.$40-million working capital facility available to NAVA. The loan carries an annual interest rate of 15% and is secured by company assets, including meningitis C vaccine inventories and certain intellectual property. It is repayable in full plus a 25% premium on June 30, 2000 or upon a change in control of NAVA, whichever occurs first. BioChem Pharma is NAVA's largest shareholder, holding approximately 32% of the outstanding common shares. Dr. Phillip Frost, NAVA's second largest shareholder, has agreed to make an additional U.S.$5-million facility available on similar terms and conditions. BioChem Pharma is an international biopharmaceutical company dedicated to the research, development and commercialization of innovative products for the prevention and treatment of human diseases with a focus in the anti-infective and anticancer areas. STATEMENTS MADE IN THIS PRESS RELEASE INCLUDE FORWARD-LOOKING STATEMENTS MADE PURSUANT TO THE SAFE HARBOR PROVISIONS OF THE SECURITIES LITIGATION REFORM ACT OF 1995. SUCH STATEMENTS, INCLUDE, WITHOUT LIMITATION, THOSE RELATING TO THE CLOSING OF THE BAXTER INTERNATIONAL, INC. ACQUISITION OF NORTH AMERICAN VACCINE, INC. ACTUAL EVENTS COULD DIFFER MATERIALLY FROM THOSE PROJECTED HEREIN AND DEPEND ON A NUMBER OF FACTORS, INCLUDING THE UNCERTAINTIES RELATED TO THE REGULATORY PROCESS AND THE COMMERCIALIZATION OF NAVA'S MENINGITIS C VACCINE. INVESTORS SHOULD CONSULT THE CORPORATION'S ONGOING QUARTERLY FILINGS, ANNUAL REPORTS AND 40-F FILLINGS FOR ADDITIONAL INFORMATION ON RISKS AND UNCERTAINTIES RELATING TO THESE FORWARD-LOOKING STATEMENTS. INVESTORS ARE CAUTIONED NOT TO RELY ON THESE FORWARD-LOOKING STATEMENTS. THE CORPORATION DOES NOT UNDERTAKE TO UPDATE THESE FORWARD-LOOKING STATEMENTS. FOR ADDITIONAL INFORMATION: Peter McBride (investors) (450) 978-7771 Michele Roy (media) (450) 978-7938 Corporate Communications BioChem Pharma Inc. E-mail: corpcom@biochempharma.com -----END PRIVACY-ENHANCED MESSAGE-----