-----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, IN9SgyKYTmrjHcWn92lE6eUMmijWICyqFr1xwON1JsC/cDpfFcWLw3DRMxP9uYiA veymaPoK5sEbBkeBeVIVOQ== 0000950123-99-010492.txt : 19991124 0000950123-99-010492.hdr.sgml : 19991124 ACCESSION NUMBER: 0000950123-99-010492 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991123 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: 99763151 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 NO. 11 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. 11)* 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) November 17, 1999 - -------------------------------------------------------------------------------- (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 11 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. Items 3, 4, 5, 6 and 7 of the Schedule 13D are hereby amended and supplemented to add the following: Item 3. Source and Amount of Funds or Other Consideration. No change from the Schedule 13D as originally filed and subsequently amended except as set forth below. BioChem currently holds 750,000 Warrants. BioChem has agreed that the Warrants will be terminated at the closing of the Arrangement (as defined below) in exchange for aggregate consideration of $1,396,875. Baxter International Inc. ("Baxter") has agreed to pay off any amounts outstanding under the Line of Credit and the Guarantee upon closing of the Arrangement. Item 4. Purpose of Transaction On November 17, 1999, the Company entered into a Share Exchange Agreement (the "Share Exchange Agreement") with Baxter and a newly formed Canadian subsidiary of Baxter providing for the acquisition by Baxter of all of the Company's outstanding Common Stock by means of an arrangement under Section 192 of the Canada Business Corporation Act (the "Arrangement"). Upon closing of the Arrangement, each share of Common Stock will be exchanged for a fraction of a share of Baxter's common stock having a value of $6.97 plus a cash payment of $.03. The closing of the Arrangement by Baxter is subject to customary conditions, including certain regulatory approvals and the absence of a material adverse effect on the Company. In connection with the execution of the Share Exchange Agreement, BioChem entered into a Shareholder Agreement dated as of November 17, 1999 with Baxter and certain other shareholders of the Company (the "Shareholder Agreement"), pursuant to which it has agreed to vote its shares of the Common Stock in favor of the Arrangement. The terms of the Shareholder Agreement are described in Item 6 below. BioChem and Baxter have also entered into a Stock Purchase Agreement dated as of November 17, 1999 (the "Stock Purchase Agreement"), pursuant to which Baxter has agreed to purchase 714,286 shares of Common Stock (the "Divested Shares") from BioChem for $7.00 in cash per share, or an aggregate of $5,000,002. It is expected that the purchase and sale of the Divested Shares will be completed within two weeks of the date hereof. As more fully described in Item 6 below, BioChem has agreed to vote its shares of Common Stock in favor of the Arrangement. If the Arrangement does not occur, BioChem will reconsider its 4 5 plans with respect to the Company. Such plans could include the sale of all or a portion of the securities issued by the Company which are currently held by BioChem, the purchase of all or a portion of the outstanding equity securities issued by the Company which are not currently held by BioChem or other strategic transactions involving the Company. Other than as stated above, BioChem has no present plans or proposals which relate to or would result in any actions described in subparagraphs (a) through (j) of Schedule 13D. BioChem reserves the right to determine in the future whether to pursue any plans or proposals of the type specified above. Item 5. Interest in Securities of the Issuer. (a) After giving effect to the sale of the Divested Shares, BioChem will own 10,522,640 shares of the Company's Common Stock, 1,000,000 shares of the Company's Class A Preferred Stock and $9,000,000 principal amount of the Company's 4.5% convertible secured notes due 2003 (the "Notes"), which are convertible into the Company's Common Stock and will be repaid upon closing of the Arrangement. Accordingly, BioChem beneficially owns an aggregate amount of 14,326,418 of the Company's Common Stock representing 40% of the Company's Common Stock. (b) The amount disclosed includes 1,000,000 shares of the Company's Class A Preferred Stock which are convertible into 2,000,000 shares of the Company's Common Stock, 1,053,778 shares of the Company's Common Stock into which the Notes are currently convertible and 750,000 Warrant Shares. (c) Except as described in Item 6 below, BioChem has sole and exclusive voting and dispositive power with respect to all shares of the Company's Common Stock and Class A Preferred Stock which BioChem beneficially owns. Item 6. Contracts, Arrangements, Understandings or Relationships With respect to Securities of the Issuer. In order to induce Baxter to enter into the Share Exchange Agreement, BioChem, Frost-Nevada, Limited Partnership ("Frost LP"), IVAX Corporation ("IVAX") and Phillip Frost, M.D. ("Frost") have entered into the Shareholder Agreement with Baxter. Pursuant to the Shareholder Agreement, each of BioChem, Frost LP, IVAX and Frost has agreed to vote their shares of Common Stock in favor or the Arrangement. In addition, each of BioChem, Frost L.P., IVAX and Frost has agreed to timely deliver to Baxter a duly executed proxy (each a "Proxy") which Proxy will cover all shares of Common Stock owned by such shareholder and entitled to vote at each meeting of shareholders of the Company (including, without limitation, each written Consent in lieu of meeting) (the "Shares"). Each Proxy will serve to irrevocably appoint the members of the Board of Directors of Baxter to vote the Shares. Each Proxy 5 6 and the Shareholder Agreement will terminate upon the earliest to occur of (i) such date and time as the Arrangement shall become effective in accordance with terms and provisions of the Share Exchange Agreement, (ii) the date of termination of the Share Exchange Agreement, (iii) a material breach by Baxter of any agreement with such Party and (iv) May 31, 2000 (such earliest date, the "Expiration Date"). Until the Expiration Date, the shareholder parties have agreed not to (and to use reasonable efforts to cause the Company, its affiliates, officers, directors and employees and any investment banker, attorney, accountant or other agent retained by any of such shareholder parties, the Company or any of the same, not to, except to the extent otherwise permitted under the Share Exchange Agreement): (i) solicit, initiate or encourage (including by way of furnishing, or disclosing nonpublic information) any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to any shareholders of the Company) that constitutes or may reasonably be expected to lead to, any Company Competing Transaction (as such term is defined in the Share Exchange Agreement); or (ii) knowingly encourage or otherwise enter into or maintain or continue discussions or negotiate with any person with respect to such inquires or to obtain a Company Competing Transaction, or agree to or endorse any agreement, arrangement or understanding with respect to any Company Competing Transaction. In the event any of the shareholder parties become aware of any Company Competing Transaction subsequent to November 17, 1999, each of such shareholder parties has agreed to promptly inform Baxter as to any such matter and the details thereof to the extent possible without breaching any other agreement to which such shareholder is a party or violating its fiduciary duties. 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. Stock Purchase Agreement dated November 17, 1999 between Baxter International Inc. and BioChem Pharma, Inc. 99.2. Shareholder Agreement dated as of November 17, 1999 among Baxter International Inc., BioChem Pharma Inc., Phillip Frost, M.D., Frost-Nevada, Limited Partnership and IVAX Corporation. 99.3. Press release dated November 18, 1999. 6 7 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 7 8 EXHIBIT INDEX 99.1. Stock Purchase Agreement dated November 17, 1999 between Baxter International Inc. and BioChem Pharma, Inc. 99.2. Shareholder Agreement dated as of November 17, 1999 among Baxter International Inc., BioChem Pharma Inc., Phillip Frost, M.D., Frost-Nevada, Limited Partnership and IVAX Corporation. 99.3. Press release dated November 18, 1999. 8 EX-99.1 2 STOCK PURCHASE AGREEMENT 1 EXHIBIT 1 STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT, dated November 17, 1999, between Baxter International Inc., a Delaware corporation ("Acquisition"), and BioChem Pharma Inc. (the "Seller"). WHEREAS, the Seller owns 11,179,114 Common Shares (the "NAV Common Stock"), of North America Vaccine, Inc., a corporation organized under the laws of Canada ("NAV"); and WHEREAS, NAV, Acquisition and Neptune Acquisition Corp. have entered into a Share Exchange Agreement (the "Share Exchange Agreement"), dated the date hereof, providing for acquisition to acquire all the outstanding capital stock of NAV (the "Merger"); and WHEREAS, Seller wishes to sell to Acquisition 714,286 shares of NAV Common Stock, and Acquisition wishes to purchase such shares from the Seller on the terms and conditions set forth herein; NOW THEREFORE, in consideration of the mutual covenants, agreements, representations and warranties herein contained, the parties hereto agree as follows: 1. Purchase and Sale of the Shares and the Options. 1.1. Purchase and Sale of the Shares and the Options. Subject to the terms and conditions of this Agreement, at the Closing provided for in Section 1.2, the Seller will sell, and Acquisition will purchase, 714,286 shares of NAV Common Stock (the "Shares"). 1.2. Purchase Price. The purchase price for the Shares shall be U.S. $7.00 per share. 1.3. Closing. The closing of the purchase and sale of the Shares (the "Closing") will take place at the offices of Brobeck, Phleger & Harrison LLP, 1633 Broadway, New York, New York at 10:00 A.M. New York time on such date as shall be mutually agreed to by the parties hereto, but in any case on or prior to November 29, 1999. At the Closing, the Seller will deliver to Acquisition, against payment of the purchase price therefor as provided below, good and valid title to the Shares free and clear of any liens, charges, encumbrances, security interests, options or rights or claims of others with respect thereto, by (a) delivering to Acquisition certificates for the Shares, duly endorsed in blank or accompanied by the appropriate instruments of assignment duly executed in blank, and (b) having all requisite stock transfer stamps attached. At the Closing, Acquisition shall pay the aggregate purchase price for the Shares to be sold by the Seller by either delivery of a check in New York Clearing House funds payable to the order of such Seller, or by wire transfer of immediately available funds to an account designated by the Seller at least three business days prior to the Closing. 2. Representations of the Seller. The Seller hereby represents and warrants to Acquisition as follows: 2 2.1. Authority. The Seller has full power and authority to enter into this Agreement and to carry out the terms hereof. This Agreement has been duly executed and delivered by the Seller and constitutes the legal, valid and binding obligation of such Seller, enforceable against the Seller in accordance with its terms. 2.2. Title to the Shares and Options. The Seller owns 11,179,114 shares of NAV Common Stock, and at the time of Acquisition purchases the Shares, Acquisition will acquire good and unencumbered title thereto, free and clear of any lien, pledge, charge, security interest, encumbrance, title retention agreement, adverse claim or option. 2.3. No Conflict, etc. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and the performance by the Seller of this Agreement in accordance with its terms does not and will not violate, conflict with, result in the breach of any term or provision of, or constitute a default under, any agreement or instrument to which the Seller is a party or by which the Seller is bound or any statute, order, judgment, rule or regulation applicable to the Seller. The Seller is not subject to any contractual restrictions relating to the disposition of the Shares held by the Seller, and no consent, approval, authorization, order, filing, registration or qualification of or with any court, governmental authority or third person is required to be obtained by the Seller in connection with the execution and delivery of this Agreement by the Seller or the sale of such Shares as contemplated hereby. 3. Representations and Warranties of Acquisition. Acquisition represents and warrants to the Seller as follows: 3.1. Corporate Organization and Standing of Acquisition. Acquisition is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. 3.2. Authority for Agreement. Acquisition has the corporate power and authority to execute and deliver this Agreement and to carry out its obligations hereunder. The execution and delivery of this Agreement and the other transactions contemplated hereby have been duly authorized by Acquisition's Board of Directors and this Agreement constitutes the valid and legally binding obligation of Acquisition enforceable in accordance with its terms. 3.3. No Conflict, etc. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and the performance by Acquisition of this Agreement in accordance with its terms will not violate, conflict with, result in the breach of any term or provision of, or constitute a default under, any agreement or instrument to which Acquisition is a party or by which Acquisition is bound or any statute, order, judgment, rule or regulation applicable to Acquisition. No consent, approval, authorization, order, filing, registration or qualification of or with any court, governmental authority or third person is required to be obtained by Acquisition in connection with the execution and delivery of this Agreement by Acquisition and the purchase of the Shares as contemplated hereby. 2 3 3.4. Acquisition of Shares. Acquisition is acquiring the Shares purchased hereunder or acquired pursuant hereto solely for its own account with the present intention of holding such securities for purposes of investment, and that it has no intention of selling the Shares in a public distribution in violation of the federal securities laws or any applicable state securities laws. Each certificate or instrument representing the Shares shall be imprinted with a legend in substantially the following form: "THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED." 3.5. Evaluation of Investment. Acquisition is sophisticated in financial matters and is able to evaluate the risks and benefits of the purchase of the Shares. Acquisition has determined that the purchase of the Shares is suitable for Acquisition based upon its financial situation and needs, as well as its other securities holdings. 3.6. Receipt of Information. Acquisition has had the opportunity to ask questions and receive answers concerning the terms and conditions of the sale of the Shares and has had full access to such other information concerning NAV and its subsidiaries and affiliates as it has requested in order to evaluate the merits and risks inherent in purchasing the Shares. 3.7. Broker Fees. There are no claims for brokerage commissions, finders' fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement binding upon Acquisition. Acquisition shall pay, and hold Seller harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys' fees and out-of-pocket expenses) arising in connection with any such claim. 3.8. Conditions to Obligations of Acquisition. The obligation of Acquisition to purchase the Shares is subject to the fulfillment, at or prior to the Closing, of the following conditions: (a) NAV and Acquisition shall have entered into the Merger Agreement; (b) The representations and warranties of the Seller shall have been true and correct in all material respects when made and as of the Closing. 4. Conditions to Obligations of the Seller. The obligation of the Seller to sell the Shares is subject to the fulfillment, at or prior to the Closing of the following conditions: 3 4 (a) NAV and Acquisition shall have entered into the Merger Agreement; (b) The representatives and the warranties of Acquisition shall have been true and correct in all material respects when made and as of the Closing. 5. Miscellaneous. 5.1. Amendment; Governing Law. This Agreement may only be amended by a writing signed by each of the parties. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to applicable principles of conflict of laws. This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument. 5.2. Assignment. This Agreement may not be assigned by any party hereto without the written consent of the other parties hereto. 5.3. Expenses. Each party hereto shall bear its own expenses in connection with the execution and delivery of this Agreement. 5.4. Notices. All notices, waivers and other communications hereunder or with respect hereto shall be in writing and shall be deemed to have been duly given if signed by the respective persons giving them: (a) If to Acquisition: Baxter International Inc. One Baxter Parkway Deerfield, Illinois 60015 Attention: General Counsel with a copy to Brobeck, Phleger & Harrison LLP 1633 Broadway New York, NY 10019 Attention: Eric Simonson, Esq. (b) If to Seller: --------------------------- --------------------------- --------------------------- 4 5 Notices given in accordance with this Section 6.4 shall be deemed to have been given on the date delivered. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written. BAXTER INTERNATIONAL INC. By:___________________________ Name: Title: BIOCHEM PHARMA INC. By:__________________________ Name: Title: BIOCHEM PHARMA INC. By:__________________________ Name: Title: 5 EX-99.2 3 SHAREHOLDER AGREEMENT 1 EXHIBIT 2 ANNEX B FORM OF SHAREHOLDER AGREEMENT This SHAREHOLDER AGREEMENT (this "AGREEMENT") is made and entered into as of November 17, 1999 between 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"). Capitalized terms used and not otherwise defined herein shall have the respective meanings set forth in the Share Exchange Agreement described below. RECITALS 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 (such agreement as it may be 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"); WHEREAS, BioChem Pharma Inc. ("BioChem") (formerly known as IAF BioChem International Inc.), Frost-Nevada, Limited Partnership ("Frost LP"), IVAX Corporation ("IVAX"), and Phillip Frost, M.D. ("Frost") are parties to a Shareholders' Agreement dated January 17, 1990 (the "Existing Agreement"); WHEREAS, in order to induce Parent to enter into the Share Exchange Agreement and consummate the Transaction, Company has agreed to use its reasonable efforts to cause each shareholder of Company who is an affiliate of Company to execute and deliver to Parent a Shareholder Agreement upon the terms set forth herein; and WHEREAS, each Shareholder is or may become the registered and beneficial owner (within the meaning of Rule 13d-3 of the Exchange Act) of capital stock of Company (such shares, other than 714,286 Company Shares owned by BioChem which are to be transferred to Parent pursuant to the Stock Purchase Agreement dated the date hereof, hereinafter referred to as the "SHARES"). NOW, THEREFORE, the parties agree as follows: 2 1. Transfer and Encumbrance. Each Shareholder represents, warrants and covenants to and with Parent that such Shareholder is the beneficial owner of the Shares, the Shares constitute the only shares of capital stock and voting securities of Company beneficially owned by such Shareholder, to such Shareholder's knowledge, the Shares are, and will be at all times up until the Expiration Date (as defined in Exhibit I hereto), free and clear of any liens, claims, options, charges or other encumbrances except as disclosed on the signature page hereto and shareholder's principal residence or place of business is accurately set forth on the signature page hereto. 2. New Shares. Each Shareholder agrees that any shares of capital stock or voting securities of Company that such Shareholder purchases or with respect to which such Shareholder otherwise acquires beneficial ownership after the date of this Agreement and prior to the Expiration Date ("NEW SHARES") shall be subject to the terms and conditions of this Agreement to the same extent as if they constituted Shares. 3. Agreement to Vote Shares. Prior to the Expiration Date, at every meeting of the shareholders of Company at which any of the following is considered or voted upon, and at every adjournment thereof, and on every action or approval by written resolution of the shareholders of Company with respect to any of the following, each Shareholder shall vote the Shares and any New Shares in favor of approval and adoption of the Arrangement Resolution (as defined in the Share Exchange Agreement) and of the Transaction. 4. Irrevocable Proxy. Each Shareholder hereby agrees to timely deliver to Parent a duly executed proxy in the form attached hereto as Exhibit I (the "PROXY"), such Proxy to cover the Shares and all New Shares in respect of which such Shareholder is entitled to vote at each meeting of the shareholders of Company (including, without limitation, each written consent in lieu of a meeting). In the event that a Shareholder is unable to provide any such Proxy in a timely manner, each Shareholder hereby grants Parent a power of attorney to execute and deliver such Proxy for and on behalf of such Shareholder, such power of attorney, which being coupled with an interest, shall survive any death, disability, bankruptcy, or any other such impediment of such Shareholder. Upon the execution of this Agreement by such Shareholder, such Shareholder hereby revokes any and all prior proxies or powers of attorney given by such Shareholder with respect to the Shares and agrees not to grant any subsequent proxies or powers of attorney with respect to the Shares until after the Expiration Date. 5. Representations, Warranties and Covenants of Shareholder. Each Shareholder hereby represents, warrants and covenants to Parent as follows: (a) Such Shareholder has full power and legal capacity to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Shareholder and constitutes the valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms except as may be limited by (i) the effect of bankruptcy, insolvency, conservatorship, arrangement, moratorium or other laws affecting or relating to the rights of creditors generally, or (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law. To such Shareholder's 2 3 knowledge, the execution and delivery of this Agreement by such Shareholder does not, and the performance of such Shareholder's obligations hereunder will not, result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right to terminate, amend, accelerate or cancel any right or obligation under, or result in the creation of any lien or encumbrance on any Shares or New Shares pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which such Shareholder is a party or by which such Shareholder or the Shares or New Shares are or will be bound or affected. (b) Until the Expiration Date, such Shareholder will not (and will use such Shareholder's reasonable efforts to cause Company, its affiliates, officers, directors and employees and any investment banker, attorney, accountant or other agent retained by such Shareholder, Company or any of the same, not to, except to the extent otherwise permitted under Section 6.04 of the Share Exchange Agreement): (i) solicit, initiate or encourage (including by way of furnishing or disclosing nonpublic information) any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to any shareholders of the Company) that constitutes, or may reasonably be expected to lead to, any Company Competing Transaction; or (ii) knowingly encourage or otherwise enter into or maintain or continue discussions or negotiate with any Person with respect to such inquiries or to obtain a Company Competing Transaction, or agree to or endorse any agreement, arrangement or understanding with respect to any Company Competing Transaction. In the event such Shareholder shall receive or become aware of any Company Competing Transaction subsequent to the date hereof, such Shareholder shall promptly inform Parent as to any such matter and the details thereof to the extent possible without breaching any other agreement to which such Shareholder is a party or violating its fiduciary duties. Notwithstanding the foregoing, the provisions of this Section 5(b) shall not be operative for any non-executive director of Company for so long as such director serves on Company's board of directors. (c) Such Shareholder understands and agrees that if such Shareholder attempts to transfer, vote or provide any other person with the authority to vote any of the Shares other than in compliance with this Agreement, Company shall not, and such Shareholder hereby unconditionally and irrevocably instructs Company to not, permit any such transfer on its books and records, issue a new certificate representing any of the Shares or record such vote unless and until Shareholder shall have complied with the terms of this Agreement. 6. Additional Documents. Each Shareholder hereby covenants and agrees to execute and deliver any additional documents necessary or desirable, reasonably necessary and desirable, to carry out the purpose and intent of this Agreement. 7. Termination. This Agreement and the Proxy delivered in connection herewith shall terminate and shall have no further force or effect as of the Expiration Date. 8. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, then the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 3 4 9. Binding Effect and Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, but, except as otherwise specifically provided herein, neither this Agreement nor any of the rights, interests or obligations of the parties hereto may be assigned by either of the parties without the prior written consent of the other. This Agreement is intended to bind each Shareholder solely as a securityholder of Company only with respect to the specific matters set forth herein. 10. Amendment and Modification. This Agreement may not be modified, amended, altered or supplemented except by the execution and delivery of a written agreement executed by the parties hereto. 11. Specific Performance; Injunctive Relief. The parties hereto acknowledge that Parent will be irreparably harmed and that there will be no adequate remedy at law for a violation of any of the covenants or agreements of the Shareholders set forth herein. Therefore, it is agreed that, in addition to any other remedies that may be available to Parent upon any such violation, Parent shall have the right to enforce such covenants and agreements by specific performance, injunctive relief or by any other means available to Parent at law or in equity and each Shareholder hereby waives any and all defenses which could exist in its favor in connection with such enforcement and waives any requirement for the security or posting of any bond in connection with such enforcement. 12. Notices. All notices, requests, demands or other communications that are required or may be given pursuant to the terms of this Agreement shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed by registered or certified mail, postage prepaid, or sent by facsimile transmission, as follows: (a) If to a Shareholder, at the address set forth below such Shareholder's signature at the end hereof. (b) if to Parent, to: Baxter International Inc. One Baxter Parkway Deerfield, Illinois 60015 Attention: General Counsel Facsimile No.: (847) 940-6271 with a copy to: Brobeck, Phleger & Harrison LLP 1633 Broadway, 47th Floor New York, NY 10019 Attention: Eric Simonson, Esq. Facsimile No.: (212) 581-1600 Telephone No.: (212) 586-7878 4 5 or to such other address as any party hereto may designate for itself by notice given as herein provided. 13. Governing Law. This Agreement 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. 14. Entire Agreement. This Agreement and the Proxy contain the entire understanding of the parties in respect of the subject matter hereof, and supersede all prior negotiations and understandings between the parties with respect to such subject matter. 15. Counterpart. This Agreement may be executed in several counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement. 16. Effect of Headings. The section headings herein are for convenience only and shall not affect the construction or interpretation of this Agreement. 17. Suspension of Existing Agreement. By virtue of and evidenced by the execution of this Agreement, BioChem, Frost LP, IVAX and Frost (collectively, the "Parties") hereby agree to suspend the Existing Agreement until the Expiration Date, as defined in the Proxy. 18. Termination of Existing Agreement. By virtue of and evidenced by the execution of this Agreement, the Parties hereby agree that the Existing Agreement will terminate on the Effective Date. 19. Company Indebtedness. No later than ten (10) days after the Effective Date (provided that Company shall have received the requisite documentation from holders of the promissory notes described below), Parent and Company shall purchase the Company's outstanding 4.5% Convertible Secured Notes due November 13, 2003 pursuant to the terms of the Indenture dated as of November 12, 1998 between Company and Bankers Trust Company, as Trustee. 20. Consent to Assignment. By virtue of and evidenced by the execution of this Agreement, BioChem hereby consents to the assignment from Company to Parent, or any subsidiary of Parent, of the surviving rights under the Technology Transfer Agreement dated January 17, 1990 between BioChem and Company, which agreement has been terminated, in connection with the transactions contemplated by the Share Exchange Agreement and effective as of the Effective Date. 5 6 21. Guaranty. Parent and the Company will use their respective commercially reasonable efforts to obtain an extension to the maturity of indebtedness under the Company's line of credit with Royal Bank of Canada (the "Line of Credit"). BioChem hereby agrees (i) to maintain in effect and not to terminate in any respect the Guaranty Agreement dated July 1, 1999 between BioChem and Royal Bank of Canada until the Effective Date, as defined in the Proxy, and (ii) to loan to the Company any amounts due under the Line of Credit, up to an aggregate of $5,000,000, on commercially reasonable terms in the event the amounts payable under the Line of Credit become due prior to the Effective Date, as defined in the Proxy. On or promptly after the Effective Date, Parent and the Company shall (i) terminate the Line of Credit and pay off the amounts due thereunder, and (ii) repay to BioChem all amounts outstanding under the Guaranty, the related Suretyship and Subordination of Claims dated as of July 1, 1999 executed by BioChem and BioChem Pharma Holdings Inc. (the "Suretyship") and any modifications, amendments or extensions of the Guaranty or Suretyship, together with any accrued interest. Parent hereby indemnifies and holds harmless BioChem and its officers, directors, affiliates, divisions, subsidiaries, employees, representatives and agents from and against any judgments, fines, losses, claims, damages, costs, expenses (including reasonable attorney's fees) or liabilities arising out of the Guaranty or Suretyship (in each case, including such modifications, amendments or extensions) or the obligations thereunder. IN WITNESS WHEREOF, the parties have caused this Shareholder Agreement to be executed as of the date first above written. 6 7 BAXTER INTERNATIONAL INC. BIOCHEM PHARMA INC. By: ------------------------------ ---------------------------------- Name: (Signature) ------------------------------ Title: ---------------------------- ---------------------------------- (Signature) 8 SHAREHOLDER --------------------------------------- (Signature) --------------------------------------- (Signature of Spouse) --------------------------------------- (Print Name of Shareholder) --------------------------------------- (Print Street Address) --------------------------------------- (Print City, State and Zip) --------------------------------------- (Print Telephone Number) --------------------------------------- (Social Security or Tax I.D. Number) 9 SHAREHOLDER --------------------------------------- (Signature) --------------------------------------- (Signature of Spouse) --------------------------------------- (Print Name of Shareholder) --------------------------------------- (Print Street Address) --------------------------------------- (Print City, State and Zip) --------------------------------------- (Print Telephone Number) --------------------------------------- (Social Security or Tax I.D. Number) 10 SHAREHOLDER --------------------------------------- (Signature) --------------------------------------- (Signature of Spouse) --------------------------------------- (Print Name of Shareholder) --------------------------------------- (Print Street Address) --------------------------------------- (Print City, State and Zip) --------------------------------------- (Print Telephone Number) --------------------------------------- (Social Security or Tax I.D. Number) 11 SHAREHOLDER --------------------------------------- (Signature) --------------------------------------- (Signature of Spouse) --------------------------------------- (Print Name of Shareholder) --------------------------------------- (Print Street Address) --------------------------------------- (Print City, State and Zip) --------------------------------------- (Print Telephone Number) --------------------------------------- (Social Security or Tax I.D. Number) 12 SHAREHOLDER --------------------------------------- (Signature) --------------------------------------- (Signature of Spouse) --------------------------------------- (Print Name of Shareholder) --------------------------------------- (Print Street Address) --------------------------------------- (Print City, State and Zip) --------------------------------------- (Print Telephone Number) --------------------------------------- (Social Security or Tax I.D. Number) 13 SHAREHOLDER --------------------------------------- (Signature) --------------------------------------- (Signature of Spouse) --------------------------------------- (Print Name of Shareholder) --------------------------------------- (Print Street Address) --------------------------------------- (Print City, State and Zip) --------------------------------------- (Print Telephone Number) --------------------------------------- (Social Security or Tax I.D. Number) 14 EXHIBIT I IRREVOCABLE PROXY TO VOTE SHARES OF NORTH AMERICAN VACCINE, INC. The undersigned shareholder of North American Vaccine, Inc., a corporation existing under the federal laws of Canada ("COMPANY"), hereby irrevocably (to the full extent permitted by the Canada Business Corporations Act) appoints the members of the Board of Directors of Baxter International Inc., a Delaware corporation ("PARENT"), and each of them, or any other designee of Parent, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and resubstitution, to attend and act for and on behalf of the undersigned at all meetings of shareholders of Company held prior to the Expiration Date and, without limiting the generality of the foregoing, to vote and exercise all voting and related rights (to the full extent that the undersigned is entitled to do so) with respect to all of the shares of capital stock of Company that now are or hereafter may be beneficially owned by the undersigned, and any and all other shares or securities of Company issued or issuable in respect thereof on or after the date hereof (collectively, the "SHARES") in accordance with the terms of this Irrevocable Proxy. Upon the undersigned's execution of this Irrevocable Proxy, any and all prior proxies given by the undersigned with respect to any Shares are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Shares until after the Expiration Date (as defined below). This Irrevocable Proxy is irrevocable (to the extent provided in the Canada Business Corporations Act), is coupled with an interest, including, but not limited to, that certain Affiliate Letter dated as of even date herewith by and among Parent, and the undersigned, and is granted in consideration of Parent entering into that certain Share Exchange Agreement (the "SHARE EXCHANGE AGREEMENT") 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 which Share Exchange Agreement provides for exchange of all of the issued and outstanding capital stock of Company in exchange for shares of Parent and cash held by Acquireco (the "ARRANGEMENT"). As used herein, the term "Expiration Date" shall mean the earliest to occur of (i) such date and time as the Arrangement shall become effective in accordance with the terms and provisions of the Share Exchange Agreement, (ii) the date of termination of the Share Exchange Agreement, (iii) a material breach by Parent of any agreement with the undersigned shareholder, and (iv) May 31, 2000. The attorneys and proxies named above, and each of them are hereby authorized and empowered by the undersigned, at any time prior to the Expiration Date, to act as the undersigned's attorney and proxy to vote the Shares, and to exercise all voting and other similar rights of the undersigned with respect to the Shares (including, without limitation, the power to execute and deliver written consents pursuant to the Canada Business Corporations Act) to the same extent and with the same power as if the undersigned were personally present at such meeting, at every annual, special or adjourned meeting of the shareholders of Company and in 1 15 every written consent in lieu of such meeting in favor of approval and adoption of the Arrangement Resolution (as defined in the Share Exchange Agreement), the Share Exchange Agreement and of the transactions contemplated thereby. 2 16 The attorneys and proxies named above may not exercise this Irrevocable Proxy on any other matter except as provided above. The undersigned shareholder may vote the Shares on all other matters. All authority herein conferred shall survive the death or incapacity of the undersigned and any obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. This Irrevocable Proxy is coupled with an interest as aforesaid and is irrevocable. Dated: November 17, 1999 ------------------------------------- (Signature of Shareholder) ------------------------------------- (Print Name of Shareholder) Shares beneficially owned: shares of Company Common Shares ----- EX-99.3 4 PRESS RELEASE 1 EXHIBIT 3 BIOCHEM PHARMA AGREES TO SELL ITS STAKE IN NORTH AMERICAN VACCINE TO BAXTER Laval, Quebec, Canada, Nov. 18/CNW-PRN/ - BioChem Pharma Inc. (NASDAQ:BCHE - news: ME, TSE: BHC - news) announced today that it has entered into an agreement with Baxter International Inc (NYSE:BAX - news; "Baxter") to vote in favor of the acquisition by Baxter of all of the outstanding shares of North American Vaccine, Inc. (AMEX:NVX - news; "NAVA"). Pursuant to the agreement, Baxter has agreed to exchange each share of NAVA's common stock for an amount of Baxter common stock and cash having a value of US$7 per share, based on an average market price of Baxter's shares for a period prior to closing. 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. BioChem Pharma news releases and other company information can be found on the World Wide Web at www.biochempharma.com. This press release contains forward-looking statements, which reflect the Corporation's current expectation regarding future events, including the closing of Baxter's acquisition of North American Vaccine. The forward-looking statements involve risks and uncertainties. Actual events could differ materially from those projected herein and depend on a number of factors. Investors should consult the Corporation's ongoing quarterly filings, annual reports and 40-F filings for additional information on risks and uncertainties relating to these forward-looking statements. The reader is cautioned not to rely on these forward-looking statements. The Corporation disclaims any obligation to update these forward-looking statements. -----END PRIVACY-ENHANCED MESSAGE-----