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