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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
____________________
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
(Name of Subject Company)
AAC ACQUISITION LTD.
an indirect wholly owned subsidiary of
ABBOTT LABORATORIES
(Bidder)
COMMON SHARES
(Title of Class of Securities)
46005H100
(CUSIP Number of Class of Securities)
Jose M. de Lasa
Senior Vice President, Secretary
and General Counsel
Abbott Laboratories
100 Abbott Park Road
Abbott Park, Illinois 60064-3500
(847) 937-6100
with a copy to:
Scott J. Davis
James T. Lidbury
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
CALCULATION OF FILING FEE
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Transaction Valuation Amount of Filing Fee
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$240,519,396 $48,105
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* For purposes of calculating the filing fee only. This amount assumes the
purchase of 18,501,492 common shares (the "Shares") of the subject
company at $13.00 in cash per Share.
/ / Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: Not Applicable.
Form or Registration Number: Not Applicable.
Filing Party: Not Applicable.
Date Filed: Not Applicable.
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Page 1 of 7 Pages
Exhibit Index is located on Page 7
CUSIP No.: 46005H100 14D-1 Page 2 of 7 Pages
1. Name of Reporting Person: AAC Acquisition Ltd.
S.S. or I.R.S. Identification Nos. of Above Person: None.
Name of Reporting Person: Abbott Laboratories
S.S. or I.R.S. Identification Nos. of Above Person: 36-0698440
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2. Check the Appropriate Box if a Member of a Group: (a) / /
(b) / /
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3. SEC Use Only:
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4. Sources of Funds: WC
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(e)
or 2(f): / /
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6. Citizenship or Place of Organization: British Columbia (AAC Acquisition
Ltd.); Illinois (Abbott Laboratories)
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7. Aggregate Amount Beneficially Owned by Each Reporting Person: 0 Shares
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8. Check if the Aggregate in Row (7) Excludes Certain Shares: / /
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9. Percent of Class Represented by Amount in Row (7): 0.0%
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10. Type of Reporting Person: CO (AAC Acquisition Ltd.)
CO (Abbott Laboratories)
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2
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is International Murex Technologies
Corporation, a company organized under the laws of British Columbia (the
"Company"), which has its principal executive offices at 2255 B. Queen Street,
East, Suite 828, Toronto, Ontario, Canada M4E 1G3. Capitalized terms used in
this Schedule 14D-1 and not defined herein shall have the meanings set forth in
the Offer to Purchase dated March 20, 1998 (the "Offer to Purchase") attached
hereto as Exhibit (a)(1).
(b) The information set forth in the "Introduction" of the Offer to
Purchase is incorporated herein by reference.
(c) The information set forth in "The Tender Offer - 6. Price Range of
the Shares" of the Offer to Purchase is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(d) and (g) The information set forth in "Introduction" and "The
Tender Offer - 8. Certain Information Concerning Purchaser and Parent" of
the Offer to Purchase is incorporated herein by reference.
(e) and (f) During the last five years, neither Abbott Laboratories, an
Illinois corporation ("Parent"), nor AAC Acquisition Ltd., a British Columbia
company ("Purchaser") and an indirect wholly owned subsidiary of Parent, nor,
to the best of their knowledge, any of the individuals listed in "The Tender
Offer - 8. Certain Information Concerning Purchaser and Parent" or in
Schedule I of the Offer to Purchase has (i) been convicted in a criminal
proceeding or (ii) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and, as a result of such
proceeding, was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting activities subject to, federal or state
securities laws or finding any violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a)-(b) The information set forth in "The Tender Offer - 8. Certain
Information Concerning Purchaser and Parent" and "The Tender Offer - 9.
Background of the Offer" of the Offer to Purchase is incorporated herein by
reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in "The Tender Offer - 11. Source and Amount
of Funds" of the Offer to Purchase is incorporated herein by reference.
(b)-(c) None.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a)-(g) The information set forth in "The Tender Offer - 10. Purpose of
the Offer; the Acquisition Agreement" and "The Tender Offer - 12. Certain
Effects of the Offer" of the Offer to Purchase is incorporated herein by
reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a)-(b) None.
3
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
The information set forth in "The Tender Offer - 8. Certain Information
Concerning Purchaser and Parent" and "The Tender Offer - 10. Purpose of the
Offer; the Acquisition Agreement" of the Offer to Purchase is incorporated
herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in "The Tender Offer - 16. Fees and Expenses" of
the Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The information set forth in "The Tender Offer - 8. Certain Information
Concerning Purchaser and Parent" and "The Tender Offer - 12. Certain Effects
of the Offer" of the Offer to Purchase is incorporated herein
by reference.
This incorporation by reference herein of the above referenced financial
information does not constitute an admission that such information is material
to a decision by a shareholder of the Company whether to sell, tender or hold
Shares being sought in this tender offer.
ITEM 10. ADDITIONAL INFORMATION.
(a) None.
(b)-(d) The information set forth in "The Tender Offer - 15. Certain Legal
Matters; Regulatory Approvals" of the Offer to Purchase is incorporated herein
by reference.
(e) None.
(f) Reference is hereby made to the Offer to Purchase and the related
Letter of Transmittal, copies of which are attached hereto as Exhibits (a)(1)
and (a)(2), respectively, and which are incorporated herein in their entirety by
reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Offer to Purchase dated March 20, 1998.
(a)(2) Form of Letter of Transmittal.
(a)(3) Form of Letter to Shareholders dated March 20, 1998.
(a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees dated March 20, 1998.
(a)(5) Form of Notice of Guaranteed Delivery.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(7) Form of Summary Advertisement.
(a)(8) Form of Press Release.
(b) None.
4
(c)(1) Acquisition Agreement among International Murex Technologies
Corporation, Abbott Laboratories and AAC Acquisition Ltd. dated
as of March 13, 1998.
(c)(2) Confidentiality Agreement between International Murex
Technologies Corporation and Abbott Laboratories dated as of
February 22, 1998.
(c)(3) Shareholder Agreement between Parent and Edward J. DeBartolo, Jr.
(c)(4) Shareholder Agreement between Parent and Estate of Edward J.
DeBartolo.
(c)(5) Shareholder Agreement between Parent and University of Notre
Dame.
(c)(6) Shareholder Agreement between Parent and C. Robert Cusick.
(c)(7) Shareholder Agreement between Parent and F. Michael P. Warren.
(c)(8) Shareholder Letter from Citinvest Value Investment Portfolio
(VIP) Selector.
(c)(9) Shareholder Letter from Oracle Partners, L.P.
(c)(10) Amendment to Rights Plan dated as of March 13, 1998.
(d) None.
(e)-(f) Not Applicable.
5
SIGNATURES
After due 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.
Dated: March 20, 1998. AAC Acquisition Ltd.
By: /s/ Thomas D. Brown
---------------------------
Name: Thomas D. Brown
Title: Vice President
ABBOTT LABORATORIES
By: /s/ Miles D. White
---------------------------
Name: Miles D. White
Title: Executive Vice President
6
EXHIBIT INDEX
Sequentially
Numbered
Exhibit Description Page
- ------- ----------- -----------
(a)(1) Offer to Purchase dated March 20, 1998. . . . . . . . . . . . . . . .
(a)(2) Form of Letter of Transmittal . . . . . . . . . . . . . . . . . . . .
(a)(3) Form of Letter to Shareholders dated March 20, 1998 . . . . . . . . .
(a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees, dated March 20, 1998 . . . . . . .
(a)(5) Form of Notice of Guaranteed Delivery . . . . . . . . . . . . . . . .
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 . . . . . . . . . . . . . . . . . . . . . .
(a)(7) Form of Summary Advertisement . . . . . . . . . . . . . . . . . . . .
(a)(8) Form of Press Release . . . . . . . . . . . . . . . . . . . . . . . .
(b) None . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)(1) Acquisition Agreement among International Murex Technologies
Corporation, Abbott Laboratories and AAC Acquisition Ltd.
dated as of March 13, 1998 . . . . . . . . . . . . . . . . . . .
(c)(2) Confidentiality Agreement between International Murex
Technologies Corporation and Abbott Laboratories dated as of
February 22, 1998. . . . . . . . . . . . . . . . . . . . . . . .
(c)(3) Shareholder Agreement between Parent and Edward J. DeBartolo, Jr. . .
(c)(4) Shareholder Agreement between Parent and Estate of Edward J. De
Bartolo. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)(5) Shareholder Agreement between Parent and University of Notre Dame . .
(c)(6) Shareholder Agreement between Parent and C. Robert Cusick . . . . . .
(c)(7) Shareholder Agreement between Parent and F. Michael P. Warren . . . .
(c)(8) Shareholder Letter from Citinvest Value Investment Portfolio
(VIP) Selector . . . . . . . . . . . . . . . . . . . . . . . . .
(c)(9) Shareholder Letter from Oracle Partners, L.P. . . . . . . . . . . . .
(c)(10) Amendment to Rights Plan dated as of March 13, 1998 . . . . . . . . .
(d) None. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e)-(f) Not applicable. . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING COMMON SHARES
OF
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
AT
U.S.$13.00 NET PER SHARE
BY
AAC ACQUISITION LTD.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
ABBOTT LABORATORIES
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON THURSDAY, APRIL 16, 1998 UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A
NUMBER OF COMMON SHARES (THE "SHARES") OF INTERNATIONAL MUREX TECHNOLOGIES
CORPORATION (THE "COMPANY") WHICH CONSTITUTES AT LEAST 75% OF THE COMPANY'S
OUTSTANDING VOTING POWER (ASSUMING THE EXERCISE OF ALL OUTSTANDING OPTIONS TO
PURCHASE SHARES WHICH OPTIONS ARE NOT SUBJECT TO BINDING AGREEMENTS TO CANCEL)
(THE "MINIMUM CONDITION") AND (2) THE EXPIRATION OR TERMINATION OF ANY
APPLICABLE WAITING PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT
OF 1976, AS AMENDED (THE "HSR ACT"), THE CANADIAN COMPETITION ACT, THE
INVESTMENT CANADA ACT, ANY APPLICABLE REQUIREMENTS OF ANY LAWS OR REGULATIONS
RELATING TO THE REGULATION OF MONOPOLIES OR COMPETITION IN GERMANY OR ANY
APPLICABLE REQUIREMENTS OF THE UNITED KINGDOM FAIR TRADING ACT. THE OFFER IS
ALSO SUBJECT TO OTHER TERMS AND CONDITIONS CONTAINED IN THIS OFFER TO PURCHASE.
SEE INTRODUCTION AND SECTIONS 1 AND 13 HEREOF.
THE OFFER IS BEING MADE IN CONNECTION WITH THE ACQUISITION AGREEMENT DATED
AS OF MARCH 13, 1998 AMONG THE COMPANY, ABBOTT LABORATORIES ("PARENT") AND AAC
ACQUISITION LTD. ("PURCHASER"), PURSUANT TO WHICH, FOLLOWING THE CONSUMMATION OF
THE OFFER, THE ACQUISITION OF THE COMPANY BY PARENT AND PURCHASER WILL BE
COMPLETED THROUGH EITHER A STATUTORY RIGHT OF ACQUISITION (THE "COMPULSORY
ACQUISITION") OR AN AMALGAMATION OR OTHER BUSINESS COMBINATION (THE
"AMALGAMATION"). THE COMPANY'S BOARD OF DIRECTORS UNANIMOUSLY HAS APPROVED THE
OFFER AND RECOMMENDS THAT SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND
TENDER THEIR SHARES. THE OFFER IS BEING EFFECTED TO FACILITATE EITHER THE
COMPULSORY ACQUISITION OR THE AMALGAMATION. SEE "RECOMMENDATION OF THE COMPANY'S
BOARD OF DIRECTORS."
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IMPORTANT
Any shareholder desiring to tender all or any portion of such shareholder's
Shares, should either (1) complete and sign the Letter of Transmittal (or a
facsimile thereof) in accordance with the instructions in the Letter of
Transmittal and deliver it and any other required documents to the Depositary
and either deliver the certificate(s) representing such Shares to the Depositary
along with the Letter of Transmittal or tender such Shares pursuant to the
procedure for book-entry transfer set forth in Section 3 hereof or (2) request
such shareholder's broker, dealer, commercial bank, trust company or other
nominee to effect the transaction for such shareholder. Any shareholder whose
Shares are registered in the name of a broker, dealer, commercial bank, trust
company or other nominee must contact such broker, dealer, commercial bank,
trust company or other nominee if such shareholder desires to tender such
Shares.
A shareholder who desires to tender Shares and whose certificates
representing such Shares are not immediately available, or who cannot comply
with the procedure for book-entry transfer on a timely basis, may tender such
Shares by following the procedures for guaranteed delivery set forth in Section
3.
Questions and requests for assistance or additional copies of this Offer to
Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may be
directed in the United States to Goldman, Sachs & Co. and in Canada to Goldman
Sachs Canada, or to the Information Agent, at their respective addresses and
telephone numbers set forth on the back cover of this Offer to Purchase.
Additional copies of this Offer to Purchase, the Letter of Transmittal and the
Notice of Guaranteed Delivery may be obtained from the Information Agent or from
brokers, dealers, commercial banks or trust companies.
This Offer is being made for the securities of a Canadian issuer the Shares
of which are listed only on a public market in the United States. The
enforcement by shareholders of civil liabilities under United States federal
securities laws may be adversely affected by the fact that the Company is
incorporated under the laws of British Columbia, and that some of its directors
and officers are residents of Canada.
------------------
The Dealer Managers for the Offer are:
In the United States: In Canada:
GOLDMAN, SACHS & CO. GOLDMAN SACHS CANADA
--------------
The date of this Offer to Purchase is March 20, 1998.
TABLE OF CONTENTS
PAGE
-----------
INTRODUCTION................................................................................................. 1
RECOMMENDATION OF THE COMPANY'S BOARD OF DIRECTORS........................................................... 2
THE TENDER OFFER............................................................................................. 2
1. Terms of the Offer; Extension of Tender Period; Termination; Amendment............................ 2
2. Acceptance for Payment and Payment for Shares..................................................... 4
3. Procedure for Tendering Shares.................................................................... 5
4. Withdrawal Rights; Statutory Rights............................................................... 7
5. Certain Tax Consequences.......................................................................... 8
6. Price Range of the Shares......................................................................... 12
7. Certain Information Concerning the Company........................................................ 13
8. Certain Information Concerning Purchaser and Parent............................................... 15
9. Background of the Offer........................................................................... 17
10. Purpose of the Offer; the Acquisition Agreement................................................... 18
11. Source and Amount of Funds........................................................................ 32
12. Certain Effects of the Offer...................................................................... 32
13. Certain Conditions of the Offer................................................................... 35
14. Dividends and Distributions....................................................................... 37
15. Certain Legal Matters; Regulatory Approvals....................................................... 38
16. Fees and Expenses................................................................................. 39
17. Miscellaneous..................................................................................... 40
Schedule I--Information Concerning the Directors and Officers
of Parent and Purchaser............................................................................... I-1
i
To the Shareholders of International Murex Technologies Corporation:
INTRODUCTION
AAC Acquisition Ltd., a British Columbia company ("Purchaser") and an
indirect wholly owned subsidiary of Abbott Laboratories, an Illinois corporation
("Parent"), hereby offers to purchase all of the outstanding common shares,
without par value (the "Shares"), of International Murex Technologies
Corporation, a British Columbia company (the "Company"), at a purchase price of
U.S.$13.00 per Share (the "Offer Price"), net to the seller in cash, in
accordance with the terms and subject to the conditions set forth in this Offer
to Purchase and in the related Letter of Transmittal (which, as amended from
time to time, collectively constitute the "Offer").
The Offer is being made in connection with an Acquisition Agreement (the
"Acquisition Agreement") dated as of March 13, 1998, among the Company,
Purchaser and Parent. The Acquisition Agreement requires, on the terms and
subject to the conditions set forth therein, Purchaser to offer to purchase all
of the outstanding Shares of the Company pursuant to the Offer. If Purchaser
purchases Shares pursuant to the Offer, it intends to exercise its statutory
right, if available, to acquire all of the Shares not purchased pursuant to the
Offer (the "Compulsory Acquisition"). To effect a Compulsory Acquisition,
Purchaser must own 90% or more of the outstanding Shares. If a Compulsory
Acquisition is not available, Purchaser intends, subject to certain conditions,
to effect a transaction involving the amalgamation or other business combination
of Purchaser and the Company (the "Amalgamation"). In the event Purchaser
effects the Compulsory Acquisition, holders of Shares which were not purchased
in the Offer will have rights to apply to court and, in the event Purchaser
effects the Amalgamation, a holder of Shares who did not tender such Shares in
the Offer will have rights of dissent, all in accordance with British Columbia
law.
THE COMPANY'S BOARD OF DIRECTORS UNANIMOUSLY HAS DETERMINED THAT EACH OF (1)
THE OFFER AND (2) EITHER THE COMPULSORY ACQUISITION OR THE AMALGAMATION (AS THE
CASE MAY BE) IS FAIR TO AND IN THE BEST INTERESTS OF THE SHAREHOLDERS OF THE
COMPANY AND UNANIMOUSLY HAS APPROVED THE OFFER AND EITHER THE COMPULSORY
ACQUISITION OR THE AMALGAMATION AND RECOMMENDS THAT SHAREHOLDERS OF THE COMPANY
ACCEPT THE OFFER AND TENDER THEIR SHARES. SEE "RECOMMENDATION OF THE COMPANY'S
BOARD OF DIRECTORS."
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the transfer and sale of Shares pursuant to the
Offer. Purchaser will pay all fees and expenses of Goldman, Sachs & Co., which
are acting as Dealer Managers in the United States for the Offer, and Goldman
Sachs Canada, which are acting as Dealer Managers in Canada for the Offer
(collectively, in such capacity, the "Dealer Managers"), The Bank of New York
(the "Depositary") and Georgeson & Company Inc. (the "Information Agent")
incurred in connection with the Offer. See Section 16.
The purpose of the Offer is for Parent, through Purchaser, to acquire any
and all outstanding Shares and to facilitate either the Compulsory Acquisition
or the Amalgamation. As of March 13, 1998, each Share of the Company had a value
of U.S.$10.6875, based on the closing market price of the Company's Shares on
that date. The Offer provides an opportunity to existing shareholders of the
Company to sell Shares at a premium over recent trading prices. See Section 6.
THE OFFER IS CONDITIONED, AMONG OTHER THINGS, UPON SATISFACTION, IN
PURCHASER'S SOLE DISCRETION, OF THE FOLLOWING CONDITIONS: (1) THE CONDITION THAT
THERE SHALL HAVE BEEN VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN ON OR PRIOR TO
THE EXPIRATION DATE OF THE OFFER A NUMBER OF SHARES WHICH CONSTITUTES AT LEAST
75% OF THE COMPANY'S OUTSTANDING VOTING POWER (ASSUMING THE EXERCISE OF ALL
OUTSTANDING OPTIONS TO PURCHASE SHARES WHICH OPTIONS ARE NOT SUBJECT TO BINDING
AGREEMENTS TO CANCEL) (THE "MINIMUM CONDITION"), AND (2) THE EXPIRATION OR
TERMINATION OF ANY APPLICABLE WAITING PERIOD UNDER THE HART-SCOTT-RODINO
ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED (THE "HSR ACT"), THE CANADIAN
COMPETITION ACT, THE INVESTMENT CANADA ACT, ANY APPLICABLE REQUIREMENTS OF ANY
LAWS OR REGULATIONS RELATING TO THE REGULATION OF MONOPOLIES OR COMPETITION IN
GERMANY OR ANY
APPLICABLE REQUIREMENTS OF THE UNITED KINGDOM FAIR TRADING ACT. CERTAIN OTHER
CONDITIONS TO THE OFFER ARE DESCRIBED IN SECTION 13.
As of March 12, 1998, there were outstanding 16,826,599 Shares. As of March
12, 1998, options covering a total of 1,655,000 Shares were outstanding.
Purchaser estimates that up to approximately 13,875,000 Shares will need to be
validly tendered (and not validly withdrawn) to satisfy the Minimum Condition.
THIS OFFER TO PURCHASE DOES NOT CONSTITUTE A SOLICITATION OF A PROXY,
CONSENT OR AUTHORIZATION FOR OR WITH RESPECT TO AN ANNUAL MEETING OR ANY SPECIAL
MEETING OF THE COMPANY'S SHAREHOLDERS OR ANY ACTION IN LIEU THEREOF. ANY SUCH
SOLICITATION, IF REQUIRED, WILL BE MADE ONLY PURSUANT TO SEPARATE PROXY
MATERIALS IN COMPLIANCE WITH THE REQUIREMENTS OF SECTION 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT").
* * * * *
Subject to certain exceptions set forth below, Purchaser expressly reserves
the right to waive any one or more of the conditions to the Offer. See Sections
1 and 13.
Shareholders are urged to read this Offer to Purchase and the related Letter
of Transmittal carefully before deciding whether to tender their Shares.
RECOMMENDATION OF THE COMPANY'S BOARD OF DIRECTORS
The Company's Board of Directors unanimously has determined that each of (1)
the Offer and (2) either the Compulsory Acquisition or the Amalgamation is fair
to and in the best interests of the shareholders of the Company and unanimously
has approved the Offer and either the Compulsory Acquisition or the Amalgamation
and recommends that the shareholders of the Company accept the Offer and tender
their Shares. The Offer is being effected to acquire any and all outstanding
Shares and to facilitate either the Compulsory Acquisition or the Amalgamation.
The Company's Board of Directors believes that a business combination of the
Company and Parent is in the best long-term interests of the Company and its
shareholders. The Offer allows shareholders to receive cash at a premium over
recent trading prices for the Company's Shares. See Sections 6 and 9.
The Company's financial advisor, Donaldson, Lukfin & Jenrette Securities
Corporation ("DLJ") has delivered to the Company's Board of Directors its
written opinion dated March 15, 1998 to the effect that, as of the date of such
opinion, the consideration to be received by the holders of Shares pursuant to
the Offer and either the Compulsory Acquisition or the Amalgamation is fair to
such holders from a financial point of view.
THE TENDER OFFER
1. TERMS OF THE OFFER; EXTENSION OF TENDER PERIOD; TERMINATION; AMENDMENT
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), Purchaser will accept for payment and pay for all Shares validly
tendered and not properly withdrawn on or prior to the Expiration Date (as
hereinafter defined) at a price of U.S.$13.00 per Share, net to the seller in
cash. The term "Expiration Date" means 12:00 Midnight, New York City time, on
Thursday, April 16, 1998, unless Purchaser shall have extended the period during
which the Offer is open, in which event the term "Expiration Date" shall mean
the latest time and date at which the Offer, as so extended by Purchaser, shall
expire.
2
The Offer is conditioned upon, among other things, satisfaction of the
Minimum Condition, the expiration or termination of any waiting period under the
HSR Act, the Canadian Competition Act, the Investment Canada Act, any applicable
requirements of any laws or regulations relating to the regulation of monopolies
or competition in Germany or applicable requirements of the United Kingdom Fair
Trading Act. The Offer is also subject to certain other conditions set forth in
Section 13. Subject to certain exceptions set forth below, Purchaser expressly
reserves the right, in its sole discretion, to waive, in whole or in part, any
or all of the conditions of the Offer.
Purchaser expressly reserves the right, in its sole discretion, at any time
or from time to time, to extend the period during which the Offer is open for
any reason, including the non-satisfaction of any of the conditions specified in
Section 13, by giving oral or written notice of such extension to the
Depositary. During any such extension, all Shares previously tendered and not
properly withdrawn will remain subject to the Offer, subject to the rights of a
tendering shareholder to withdraw such shareholder's Shares. There can be no
assurance that Purchaser will exercise its right to extend the Offer.
Purchaser also expressly reserves the right, subject to applicable laws
(including applicable regulations of the Securities and Exchange Commission (the
"Commission")), in its sole discretion, at any time or from time to time, to (i)
delay acceptance for payment of or, regardless of whether such Shares were
theretofore accepted for payment, payment for any Shares in order to comply, in
whole or in part, with any applicable law, government regulation or any other
condition contained in Sections 13 and 15, (ii) terminate the Offer (whether or
not any Shares have theretofore been accepted for payment) if any of the
conditions referred to in Section 13 have not been satisfied or upon the
occurrence of any of the events specified in Section 13 and (iii) subject to
certain exceptions set forth below, waive any condition or otherwise amend the
Offer in any respect); in each case by giving oral or written notice of such
delay, termination, waiver or amendment to the Depositary and by causing the
Depositary to provide as soon as practicable thereafter a copy of such notice to
all holders of Shares whose Shares have not been taken up prior to the
extension. Purchaser acknowledges that (i) Rule 14e-1(c) under the Exchange Act
requires Purchaser to pay the consideration offered or return the Shares
tendered promptly after the termination or withdrawal of the Offer and (ii)
Purchaser may not delay acceptance for payment of, or payment for (except as
provided by clause (i) of the preceding sentence), any Shares upon the
occurrence of any of the conditions specified in Section 13 without extending
the period of time during which the Offer is open.
Purchaser may increase the Offer Price and may make any other changes in the
terms and conditions of the Offer, provided that Purchaser may only waive the
Minimum Condition as long as Purchaser purchases at least a majority of the
Shares outstanding (assuming the exercise of all outstanding options to purchase
Shares which options are not subject to binding agreements to cancel) and that,
unless previously approved by the Company in writing, no change may be made that
decreases the price per Share payable in the Offer, changes the form of
consideration payable in the Offer, reduces the maximum number of Shares to be
purchased in the Offer below a majority of the Shares outstanding (assuming the
exercise of all outstanding options to purchase Shares which options are not
subject to binding agreements to cancel), imposes conditions to the Offer in
addition to the conditions set forth in Section 13 or otherwise amends the terms
of the Offer in any way that would be materially adverse to holders of Shares.
Any such extension, delay, termination, waiver or amendment will be followed
as promptly as practicable by public announcement thereof, and such announcement
in the case of an extension will be made no later than 9:00 a.m., New York City
time, on the next business day after the previously scheduled Expiration Date.
Without limiting the manner in which Purchaser may choose to make any public
announcement, except as provided by applicable law (including Rules 14d-4(c) and
14d-6(d) under the Exchange Act, which require that material changes be promptly
disseminated to holders of Shares), Purchaser shall have no obligation to
publish, advertise or otherwise communicate
3
any such announcement other than by issuing a release to the Dow Jones News
Service or as otherwise may be required by law.
If Purchaser makes a material change in the terms of the Offer or if
Purchaser waives a material condition of the Offer, Purchaser will extend the
Offer to the extent required by Rules 14d-4(c) and 14d-6(d) under the Exchange
Act and as required under Canadian securities laws. Under Canadian laws, except
for a variation in the terms of the Offer consisting solely of the waiver of a
condition, if the terms of the Offer are varied, the Offer shall not expire
before ten days after the notice of variation has been given to shareholders.
Under U.S. laws, the minimum period during which an offer must remain open
following material changes in the terms of the Offer, other than a change in
price or a change in the percentages of securities sought, will depend on the
facts and circumstances, including the materiality, of the changes. With respect
to a change in price or, subject to certain limitations, a change in the
percentage of securities sought, a minimum ten business day period from the day
of such change is generally required to allow for adequate dissemination to
shareholders. Accordingly, if prior to the Expiration Date, Purchaser decreases
the number of Shares being sought, increases or decreases the consideration
offered pursuant to the Offer and if the Offer is scheduled to expire at any
time earlier than the period ending on the tenth business day from the date of
that notice of such increase or decrease is first published, sent or given to
shareholders, the Offer will be extended at least until the expiration of such
ten business day period. Any extension of the Offer will not constitute a waiver
by Purchaser of any of the conditions set forth in Section 13.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), Purchaser will accept for payment and will pay for all Shares
validly tendered and not properly withdrawn on or prior to the Expiration Date
as soon as practicable after the later to occur of: (i) the Expiration Date and
(ii) the date of satisfaction or waiver of the conditions set forth in Section
13. In addition, Purchaser reserves the right, in its sole discretion and
subject to applicable law, to delay acceptance for payment of or payment for
Shares in order to comply, in whole or in part, with any applicable law,
government regulation or any other condition contained herein. See Section 13.
For purposes of the Offer, Purchaser shall be deemed to have accepted for
payment and thereby purchased tendered Shares of the Company if, as and when
Purchaser gives oral or written notice to the Depositary of its acceptance of
such Shares for payment pursuant to the Offer. Payment for Shares of the Company
accepted for payment pursuant to the Offer will be made by deposit by Purchaser
of the purchase price to be paid by it with the Depositary, which Depositary
will act as agent for the tendering shareholders for the purpose of receiving
payments from Purchaser and transmitting such payments to tendering
shareholders. Under no circumstances will interest be paid by Purchaser on the
consideration paid for the Shares of the Company pursuant to the Offer,
regardless of any delay in making such payment. Purchaser will pay all stock
transfer taxes, if any, payable on the transfer of Shares of the Company
purchased by it pursuant to the Offer, except as set forth in Instruction 6 of
the Letter of Transmittal.
In all cases, payment for Shares tendered and accepted for payment pursuant
to the Offer will be made only after timely receipt by the Depositary of a
certificate(s) for such Shares or a timely confirmation of a book-entry transfer
of such Shares into the Depositary's account at a Book-Entry Transfer Facility
(as defined in Section 3), a Letter of Transmittal (or a facsimile thereof),
properly completed and duly executed, with any required signature guarantees or
Agent's Message (as defined in Section 3) and any other documents required by
the Letter of Transmittal. For a description of the procedure for tendering
Shares of the Company pursuant to the Offer, see Section 3.
4
If any tendered Shares are not accepted for payment for any reason or if
certificate(s) are submitted for more Shares than are tendered, certificates
evidencing unpurchased or untendered Shares will be returned without expense to
the tendering shareholder (or, in the case of Shares tendered by book-entry
transfer into the Depositary's account at a Book-Entry Transfer Facility
pursuant to the procedures set forth in Section 3, such Shares will be credited
to an account maintained at such Book-Entry Transfer Facility) as promptly as
practicable following the expiration, termination or withdrawal of the Offer.
If Purchaser increases the consideration offered to shareholders pursuant to
the Offer, such increased consideration will be paid to all shareholders whose
Shares are purchased pursuant to the Offer, whether or not such Shares were
tendered or accepted for payment prior to such increase in consideration.
Purchaser reserves the right to assign, in whole or from time to time in
part, to Parent or a direct or indirect subsidiary of Parent, the right to
purchase all or any portion of the Shares tendered pursuant to the Offer, but
any such assignment will not relieve Purchaser of its obligations under the
Offer nor will any such assignment prejudice in any way the rights of tendering
shareholders to receive payment for Shares validly tendered and accepted for
payment pursuant to the Offer.
During the pendency of the Offer, Purchaser will not purchase any Shares,
whether in the open market or otherwise, except pursuant to the Offer.
3. PROCEDURE FOR TENDERING SHARES
VALID TENDER OF SHARES. Except as set forth below, in order for Shares to
be validly tendered pursuant to the Offer, the Letter of Transmittal (or a
facsimile thereof), properly completed and duly executed, together with any
required signature guarantees, or an Agent's Message (as defined below) in
connection with a book-entry delivery of Shares as described below, and any
other documents required by the Letter of Transmittal, must be received by the
Depositary at one of its addresses set forth on the back cover of this Offer to
Purchaser. In addition, either (i) certificates evidencing tendered Shares must
be received by the Depositary at any such address or such Shares must be
tendered pursuant to the procedure for book-entry transfer (and a confirmation
of receipt of such delivery must be received by the Depositary), in each case,
on or prior to the Expiration Date or (ii) the guaranteed delivery procedures
set forth below must be complied with. The term "Agent's Message" means a
message transmitted by The Depositary Trust Company or Philadelphia Depositary
Trust Company (each, a "Book-Entry Transfer Facility") to and received by the
Depositary and forming a part of a Book-Entry Confirmation, which states that
such Book-Entry Transfer Facility has received an express acknowledgment from
the participant in such Book-Entry Transfer Facility tendering the Shares which
are the subject of such Book-Entry Confirmation, that such participant has
received and agrees to be bound by the terms of the Letter of Transmittal and
that Purchaser may enforce such agreement against such participant.
BOOK-ENTRY TRANSFER. The Depositary will establish an account with respect
to the Shares at the Book-Entry Transfer Facilities for purposes of the Offer
within two business days after the date of this Offer to Purchase. Any financial
institution that is a participant in the system of any Book-Entry Transfer
Facility may make book-entry delivery of Shares by causing a Book-Entry Transfer
Facility to transfer such Shares into the Depository's account in accordance
with that Book-Entry Transfer Facility's procedures for such transfer. Although
delivery of Shares may be effected through book-entry transfer at a Book-Entry
Transfer Facility, the Letter of Transmittal (or a facsimile thereof), properly
completed and duly executed, together with any required signature guarantees, or
an Agent's Message in connection with a book-entry transfer, and any other
required documents, must, in any case, be received by the Depositary at one of
its addresses set forth on the back cover of this Offer to Purchase on or prior
to the Expiration Date, or the guaranteed delivery procedures described below
must be complied with.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH
SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO
THE DEPOSITARY.
5
SIGNATURE GUARANTEES. Except as otherwise provided below, signatures on
Letters of Transmittal must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc. (the "NASD"), or a commercial bank or trust company having an
office or correspondent in the United States, a Canadian chartered bank, a trust
company in Canada, a commercial bank or trust company having an office, branch
or agency in the United States or a member firm of the Toronto, Montreal or
Vancouver Stock Exchanges (each of the foregoing constituting an "Eligible
Institution"). Signatures on Letters of Transmittal need not be guaranteed if
(i) the Letter of Transmittal is signed by the registered holder of Shares
tendered and such holder has not completed either the box entitled "Special
Delivery Instructions" or the box entitled "Special Payment Instructions" on the
Letter of Transmittal, or (ii) such Shares are tendered for the account of an
Eligible Institution. See Instructions 1 and 5 of the Letter of Transmittal.
If the certificates representing Shares are registered in the name of a
person other than the signer of the Letter of Transmittal, or if payment is to
be made or certificates for Shares not accepted for payment or not tendered are
to be returned to a person other than the registered holder, then the tendered
certificates must be endorsed or accompanied by appropriate stock powers, in
either case signed exactly as the name(s) of the registered holder(s) appear(s)
on the certificates, with the signatures on the certificates or stock powers
guaranteed as described above. See Instructions 1 and 5 of the Letter of
Transmittal.
GUARANTEED DELIVERY. If a shareholder desires to tender Shares pursuant to
the Offer and such shareholder's certificates are not immediately available, or
such shareholder cannot deliver the certificates and all other required
documents to reach the Depositary on or prior to the Expiration Date, or such
shareholder cannot complete the procedure for book-entry transfer on a timely
basis, such Shares may nevertheless be tendered if the following guaranteed
delivery procedures are satisfied:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by Purchaser, is received by
the Depositary as provided below on or prior to the Expiration Date; and
(iii) the certificates (or a book-entry transfer confirmation)
representing all tendered Shares, in proper form for transfer, in each case
together with the Letter of Transmittal (or a facsimile thereof) properly
completed and duly executed, with any required signature guarantees (or, in
the case of a book-entry transfer, an Agent's Message) and any other
documents required by the Letter of Transmittal are received by the
Depositary within three Nasdaq National Market System ("Nasdaq NMS") trading
days after the date of execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
telegram, telex, facsimile transmission or mail to the Depositary and must
include a guarantee by an Eligible Institution in the form set forth in such
Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF CERTIFICATES AND ALL OTHER REQUIRED DOCUMENTS,
INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY, IS AT THE OPTION
AND RISK OF THE TENDERING SHAREHOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY
WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED
MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED IS RECOMMENDED. IN ALL
CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO INSURE TIMELY DELIVERY.
BACKUP FEDERAL INCOME TAX WITHHOLDING. To prevent backup federal income tax
withholding on payments made to shareholders with respect to the purchase price
of Shares purchased pursuant to the Offer, each such shareholder must provide
the Depositary with such shareholder's correct taxpayer identification number
("TIN") and certify that such shareholder is not subject to backup United States
federal income tax withholding by completing the substitute Form W-9 included in
the Letter of Transmittal. See Instruction 8 of the Letter of Transmittal.
6
APPOINTMENT AS PROXY. By executing a Letter of Transmittal, a tendering
shareholder irrevocably appoints designees of Purchaser as such shareholder's
proxies in the manner set forth in the Letter of Transmittal to the full extent
of such shareholder's rights with respect to the Shares tendered by such
shareholder and accepted for payment by Purchaser (and with respect to any and
all other Shares or other securities issued or issuable in respect of such
Shares on or after the date of this Offer to Purchase). All such proxies shall
be irrevocable and coupled with an interest in the tendered Shares. Such
appointment will be effective when, and only to the extent that, Purchaser
accepts such Shares for payment. Upon such acceptance for payment, all prior
proxies and consents granted by such shareholder with respect to such Shares and
other securities will be revoked without further action, and no subsequent
proxies may be given nor subsequent written consents executed (and, if given or
executed, such proxies or consents will not be deemed effective). The designees
of Purchaser will be empowered to exercise all voting and other rights of such
shareholder as they, in their sole discretion, may deem proper at any annual,
special or adjourned meeting of the Company's shareholders, by written consent
or otherwise. Purchaser reserves the right to require that, in order for Shares
to be deemed validly tendered, immediately upon Purchaser's payment for such
Shares, Purchaser must be able to exercise full voting rights with respect to
such Shares, including voting at any meeting of shareholders scheduled or acting
by written consent without a meeting.
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Shares will be determined by Purchaser in its sole discretion, which
determination shall be final and binding. Purchaser reserves the absolute right
to reject any and all tenders of Shares determined by it not to be in proper
form or the acceptance for payment of which may, in the opinion of Purchaser's
counsel, be unlawful. Purchaser reserves the absolute right to waive any defect
or irregularity in any tender of Shares of any particular shareholder.
Purchaser's interpretation of the terms and conditions of the Offer (including
the Letter of Transmittal and the Instructions thereto) will be final and
binding. None of Purchaser, Parent, any of their affiliates or assigns, the
Dealer Managers, the Depositary, the Information Agent or any other person will
be under any duty to give notification of any defects or irregularities in
tenders or incur any liability for failure to give any such notification.
4. WITHDRAWAL RIGHTS; STATUTORY RIGHTS
Tenders of Shares pursuant to the Offer may be withdrawn at any time on or
prior to the Expiration Date (or such later date as may apply in case the Offer
is extended). Thereafter, such tenders are irrevocable, except that they may be
withdrawn after May 4, 1998 unless theretofore accepted for payment as provided
in this Offer to Purchase. If Purchaser extends the Offer, is delayed in
accepting for payment or paying for Shares or is unable to accept for payment or
pay for Shares pursuant to the Offer for any reason, then, without prejudice to
Purchaser's rights under the Offer, the Depositary may, on behalf of Purchaser,
retain all Shares tendered, and such Shares may not be withdrawn except to the
extent that tendering shareholders are entitled to withdrawal rights as set
forth in this Section 4.
For a withdrawal to be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase. Any
notice of withdrawal must specify the name of the person who tendered the Shares
to be withdrawn, the number of Shares to be withdrawn and the name of the
registered holder, if different from that of the person who tendered such
Shares. If certificates evidencing Shares to be withdrawn have been delivered or
otherwise identified to the Depositary, then prior to the physical release of
such certificates, the serial numbers shown on such certificates must be
submitted to the Depositary, and the signatures on the notice of withdrawal must
be guaranteed by an Eligible Institution unless such Shares have been tendered
for the account of an Eligible Institution. If Shares have been tendered
pursuant to the procedure for book-entry transfer set forth in Section 3, the
notice of withdrawal
7
must specify the name and number of the account at the Book-Entry Transfer
Facility to be credited with the withdrawn Shares.
Withdrawals may not be rescinded, and Shares withdrawn will thereafter be
deemed not validly tendered for purposes of the Offer. However, withdrawn Shares
of the Company may be retendered at any time prior to the Expiration Date by
again following one of the procedures described in Section 3.
All questions as to the form and validity (including time of receipt) of any
notice of withdrawal will be determined by Purchaser, in its sole discretion,
whose determination shall be final and binding. None of Purchaser, Parent, any
of their affiliates or assigns, the Dealer Managers, the Depositary, the
Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in any notice of withdrawal or
incur any liability for failure to give such notification.
Securities legislation in certain of the provinces and territories of Canada
provides holders of Shares with, in addition to any other rights they may have
at law, rights of rescission or to damages, or both, if there is a
misrepresentation in a circular or a notice that is required to be delivered to
the holders of Shares. However, such rights must be exercised within prescribed
time limits. Holders of Shares should refer to the applicable provisions of the
securities legislation of their province or territory for particulars of those
rights or consult with legal counsel.
5. CERTAIN TAX CONSEQUENCES
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS. The following is a
summary of certain United States federal income tax considerations of the Offer
and either the Compulsory Acquisition or the Amalgamation to holders whose
Shares are purchased pursuant to the Offer or either the Compulsory Acquisition
or the Amalgamation (including any cash amounts received by dissenting
shareholders pursuant to the exercise of appraisal rights). The discussion is
for general information only and does not purport to consider all aspects of
United States federal income taxation that may be relevant to holders of Shares.
The discussion is based on current provisions of the Internal Revenue Code of
1986, as amended (the "Code"), existing, proposed and temporary regulations
promulgated thereunder and administrative and judicial interpretations thereof,
all of which are subject to change. The discussion applies only to holders of
Shares in whose hands Shares are capital assets within the meaning of Section
1221 of the Code, and may not apply to Shares received pursuant to the exercise
of employee stock options or otherwise as compensation, or to certain types of
holders of Shares (such as insurance companies, tax-exempt organizations and
broker-dealers) who may be subject to special rules under the United States
federal income tax laws. This discussion does not discuss the United States
federal income tax consequences to a holder of Shares who, for United States
federal income tax purposes, is a non-resident alien individual, a foreign
corporation, a foreign partnership or a foreign estate or trust, nor does it
consider the effect of any foreign, state or local tax laws. See "Certain
Canadian Federal Income Tax Considerations" below.
BECAUSE INDIVIDUAL CIRCUMSTANCES MAY DIFFER, EACH HOLDER OF SHARES SHOULD
CONSULT SUCH HOLDER'S OWN TAX ADVISOR TO DETERMINE THE APPLICABILITY OF THE
RULES DISCUSSED BELOW TO SUCH HOLDER AND THE PARTICULAR TAX EFFECTS TO SUCH
HOLDER OF THE OFFER AND EITHER THE COMPULSORY ACQUISITION OR THE AMALGAMATION,
INCLUDING THE APPLICATION AND EFFECT OF STATE, LOCAL AND OTHER INCOME TAX LAWS.
The receipt of cash for Shares pursuant to the Offer or either the
Compulsory Acquisition or the Amalgamation (including any cash amounts received
by dissenting shareholders pursuant to the exercise of appraisal rights) will be
a taxable transaction for United States federal income tax purposes. In general,
for United States federal income tax purposes, a tendering shareholder will
recognize gain or loss equal to the difference between (i) the holder's adjusted
tax basis in the Shares tendered pursuant to the Offer or either the Compulsory
Acquisition or the Amalgamation and (ii) the amount of cash received therefor.
Gain or loss must be determined separately for each block of Shares (i.e.,
Shares acquired at the same cost in a single transaction) sold pursuant to the
Offer or either the Compulsory
8
Acquisition or the Amalgamation. Assuming that Shares are held as a capital
asset, such gain or loss will be a capital gain or loss. Any such capital gain
will be a long-term capital gain taxable to a non-corporate holder at a maximum
rate of 20% if the holder's Shares have been held for more than 18 months on the
date of sale (in the case of the Offer) or the Effective Time of either the
Compulsory Acquisition or the Amalgamation (in the case of either the Compulsory
Acquisition or the Amalgamation); a long-term capital gain taxable to a
non-corporate holder at a maximum rate of 28% if the Shares have been held for
more than one year but not more than 18 months on the date of the sale (or the
Effective Time of either the Compulsory Acquisition or the Amalgamation) and a
short-term capital gain taxable to a non-corporate holder at a maximum rate of
up to 39.6% if the Shares have been held for one year or less on the date of
sale (or the Effective Time of either the Compulsory Acquisition or the
Amalgamation).
Payments in connection with the Offer or either the Compulsory Acquisition
or the Amalgamation may be subject to "backup withholding" at a rate of 31%,
unless a holder of Shares (i) is a corporation or comes within certain exempt
categories and, when required, demonstrates this fact or (ii) provides a correct
TIN to the payor, certifies as to no loss of exemption from backup withholding
and otherwise complies with applicable requirements of the backup withholding
rules. A holder who does not provide a correct TIN may be subject to penalties
imposed by the Internal Revenue Service. Any amount paid as backup withholding
does not constitute an additional tax and will be creditable against the
holder's Untied States federal income tax liability. Each holder of Shares
should consult with his or her qualification for exemption from backup
withholding and the procedure for obtaining such exemption. Holders tendering
their Shares in the Offer may prevent backup withholding by completing the
Substitute Form W-9 included in the Letter of Transmittal. See Section 3.
CERTAIN CANADIAN FEDERAL INCOME TAX CONSIDERATIONS. The following is a
summary of the principal income tax considerations under the INCOME TAX ACT
(Canada) (the "Tax Act") generally applicable to a shareholder who sells Shares
pursuant to the Offer or otherwise disposes of Shares pursuant to the Compulsory
Acquisition or the Amalgamation. This summary is based on the current provisions
of the Tax Act, the regulations thereunder, and counsel's understanding of the
current administrative practices of Revenue Canada. The summary takes into
account all specific proposals to amend the Tax Act and the regulations publicly
announced by the Minister of Finance (Canada) prior to the date hereof, although
there is no certainty that such proposals will be enacted in the form proposed,
if at all. The summary does not otherwise take into account or anticipate any
changes in law, whether by judicial, governmental or legislative decision or
action or changes in administrative practices of Revenue Canada, nor does it
take into account provincial, territorial or foreign income tax considerations.
The provisions of provincial income tax legislation vary between provinces in
Canada and in some cases differ from Canadian federal income tax legislation.
THIS SUMMARY IS OF A GENERAL NATURE ONLY AND IS NOT INTENDED TO BE, NOR
SHOULD IT BE CONSTRUED TO BE, LEGAL OR TAX ADVICE OR REPRESENTATIONS TO ANY
PARTICULAR HOLDER OF SHARES FOR WHICH THE OFFER IS MADE. ACCORDINGLY,
SHAREHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISERS WITH RESPECT TO THEIR
PARTICULAR CIRCUMSTANCES, INCLUDING THE APPLICATION AND EFFECT OF THE INCOME AND
OTHER TAX LAWS OF ANY COUNTRY, PROVINCE, STATE OR LOCAL TAX AUTHORITY.
RESIDENTS OF CANADA
The following summary is generally applicable to a shareholder who, for
purposes of the Tax Act, is, or is deemed to be, resident in Canada, deals at
arm's length with the Company and Purchaser, is not affiliated with the Company
or Purchaser, is not a financial institution (to which the mark-to-market rules
may be applicable) and who holds Shares as capital property. Shares will
generally be considered to be capital property to a shareholder unless the
shareholder holds such Shares in the course of carrying on a business, or the
shareholder has acquired them in a transaction or transactions considered to be
an adventure or concern in the nature of trade. Certain shareholders whose
Shares might not otherwise qualify as capital property may, in certain
circumstances, treat Shares as capital property by making the election permitted
by subsection 39(4) of the Tax Act.
9
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
SELECTED CONSOLIDATED FINANCIAL DATA
YEAR ENDED DECEMBER 31,
----------------------------------------
1997 1996 1995
------------ ------------ ------------
(IN THOUSANDS OF U.S. DOLLARS EXCEPT PER
SHARE AMOUNTS)
STATEMENTS OF OPERATIONS DATA
Product sales............................................. $ 98,553 $ 99,881 $ 92,394
License fees.............................................. 7,579 970 --
------------ ------------ ------------
Total revenues............................................ 106,132 100,851 92,394
Costs and expenses:
Cost of products sold................................... 39,250 34,887 30,181
Research & development.................................. 7,487 6,369 7,426
General & administrative................................ 21,630 25,803 24,818
Sales & marketing....................................... 28,883 29,523 26,898
Royalty expense......................................... 5,625 (2,799) 8,365
Restructuring costs..................................... -- 2,100 --
All other expenses...................................... 104 1,542 (1,016)
------------ ------------ ------------
Total costs & expenses.................................... 102,979 97,425 96,272
Operating income (loss)................................... 3,153 3,426 (3,878)
Interest income........................................... 290 663 1,221
Interest expense.......................................... (1,422) (1,306) (167)
All other income (expense), net........................... 4,438 82 (3,304)
------------ ------------ ------------
Net income (loss) before tax.............................. $ 6,459 $ 2,865 $ (6,128)
Income tax expense (benefit).............................. (2,605) 1,016 482
Net income (loss)......................................... 9,064 1,849 (6,610)
------------ ------------ ------------
------------ ------------ ------------
Net income (loss) per common share
Basic................................................... $ 0.55 $ 0.11 $ (0.40)
Diluted................................................. $ 0.52 $ 0.11 $ (0.40)
Weighted average shares outstanding
Basic................................................... 16,484 16,215 16,381
Diluted................................................. 17,444 16,507 16,381
Cash dividends 0 0 0
AT DECEMBER 31,
----------------------------------------
1997 1996 1995
------------ ------------ ------------
(IN THOUSANDS OF U.S. DOLLARS)
CONSOLIDATED BALANCE SHEET DATA
Total assets.............................................. $ 95,243 $ 95,113 $ 85,748
Long term debt............................................ 14,331 9,638 0
AVAILABLE INFORMATION. The Company is registered under the Exchange Act,
and, accordingly, is subject to the informational filing requirements of the
Exchange Act. In accordance therewith the Company files periodic reports, proxy
statements and other information with the Commission under the Exchange Act
relating to its business, financial condition and other matters. The Company is
required to disclose in such proxy statements certain information, as of
particular dates, concerning the Company's directors and officers, their
remuneration, stock options granted to them, the principal holders of the
Company's securities and any material interest of such persons in transactions
with the Company. Such reports, proxy statements and other information may be
inspected at the Commission's office at 450 Fifth Street, N.W., Washington, D.C.
20549, and also should be available for inspection and copying at
14
the regional offices of the Commission located at 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511; and 7 World Trade Center, 13th Floor, New
York, New York 10048. Copies may be obtained by mail from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Commission also maintains a World Wide Website on the
Internet at http://www.sec.gov which site contains registration statements,
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission, including the Company.
In addition, such material should be available for inspection at the NASD, 1735
K Street, N.W., Washington, D.C. 20006.
8. CERTAIN INFORMATION CONCERNING PURCHASER AND PARENT
GENERAL. Purchaser, a British Columbia company and an indirect wholly owned
subsidiary of Parent, recently was organized for the purpose of effecting the
Offer and either the Compulsory Acquisition or the Amalgamation, and has not
carried on any activities except in connection with the Offer and either the
Compulsory Acquisition or the Amalgamation. The principal executive offices of
Purchaser are located at 100 Abbott Park Road, Abbott Park, Illinois 60064. All
the outstanding capital stock of Purchaser is owned by Parent.
Parent is an Illinois corporation with its principal offices located at 100
Abbott Park Road, Abbott Park, Illinois 60064. Parent's principal business is
the discovery, development, manufacture and sale of a broad and diversified line
of health care products and services. Parent is a public company whose stock is
traded on the New York Stock Exchange, Inc. ("NYSE").
Except as described in this Offer to Purchase, during the last five years,
none of Purchaser, Parent or, to the best knowledge of Purchaser or Parent, any
of the persons listed in Schedule I (i) has been convicted in a criminal
proceeding (excluding traffic violations and similar misdemeanors) or (ii) was a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting activities
subject to, federal or state securities laws or finding any violation of such
laws. The name, business address, present principal occupation or employment,
five-year employment history and citizenship of each director and executive
officer of Purchaser and Parent are set forth in Schedule I.
FINANCIAL INFORMATION. Set forth below is certain selected consolidated
financial information with respect to Parent and its subsidiaries as of its
fiscal years ended December 31, 1997, 1996 and 1995. More comprehensive
financial information is included in reports and in documents filed by Parent
with the Commission, and the following summary is qualified in its entirety by
reference to such reports and other documents and all of the financial
information (including any related notes) contained therein. Such reports and
other documents should be available for inspection and copies thereof should be
obtainable in the manner set forth below under "Available Information."
15
ABBOTT LABORATORIES AND SUBSIDIARIES
SELECTED CONSOLIDATED FINANCIAL INFORMATION
FISCAL YEARS ENDED DECEMBER 31,
----------------------------------------
1997 1996 1995
------------ ------------ ------------
(IN MILLIONS OF U.S. DOLLARS EXCEPT
PER SHARE AMOUNTS)
STATEMENT OF EARNINGS DATA:
Net Sales................................................. $ 11,883.5 $ 11,013.5 $ 10,012.2
Net Earnings.............................................. 2,094.5 1,882.0 1,688.7
PER SHARE DATA:
Basic Earnings Per Common Share........................... $ 2.72 $ 2.41 $ 2.12
Diluted Earnings Per Common Share......................... 2.68 2.38 2.10
BALANCE SHEET DATA:
Working Capital........................................... $ 3.7 $ 137.2 $ 436.4
Total Assets.............................................. 12,061.1 11,125.6 9,412.6
Shareholders' Equity...................................... 4,998.7 4,820.2 4,396.8
Number of Common Shares Outstanding (in thousands)........ 764,094 774,449 787,307
AVAILABLE INFORMATION. Parent is registered under the Exchange Act, and,
accordingly, is subject to the informational filing requirements of the Exchange
Act. In accordance therewith, Parent files periodic reports, proxy statements
and other information with the Commission under the Exchange Act relating to its
business, financial condition and other matters. Parent is required to disclose
in such proxy statements certain information, as of particular dates, concerning
Parent's directors and officers, their remuneration, stock options granted to
them, the principal holders of Parent's securities and any material interest of
such persons in transactions with Parent. Such reports, proxy statements and
other information may be inspected at the Commission's office at 450 Fifth
Street, N.W., Washington, D.C. 20549, and also should be available for
inspection and copying at the regional offices of the Commission located at 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies may be obtained by mail
from the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission also maintains a
World Wide Website on the Internet at http://www.sec.gov which site contains
registration statements, reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission,
including the Parent. In addition, such material should be available for
inspection at the NYSE, 20 Broad Street, New York, New York 10005.
Except as described in this Offer to Purchase, (i) none of Purchaser or
Parent or, to the best knowledge of Purchaser or Parent, any of the persons
listed in Schedule I or any associate or majority owned subsidiary of any such
persons, beneficially owns or has a right to acquire any equity security of the
Company and (ii) none of Purchaser or Parent or, to the best knowledge of
Purchaser or Parent, any of the other persons referred to above, or any of the
respective directors, executive officers or subsidiaries of any of the
foregoing, has effected any transaction in any equity security of the Company
during either the past 60 days or the past six months.
Except as described in this Offer to Purchase, (i) none of Purchaser, Parent
or, to the best knowledge of Purchaser or Parent, any of the persons listed in
Schedule I has any contract, arrangement, understanding or relationship (whether
or not legally enforceable) with any other person with respect to any securities
of the Company, including, but not limited to, any contract, arrangement,
understanding or relationship concerning the transfer of the voting of any such
securities, joint ventures, loan or option arrangements, puts or calls,
guarantees of loans, guarantees against loss, or the giving or withholding of
proxies; (ii) there have been no contacts, negotiations or transactions between
Purchaser, Parent or any
16
of their respective subsidiaries or, to the best knowledge of Purchaser or
Parent, any of the persons listed on Schedule I on the one hand, and the Company
or any of its directors, officers or affiliates, on the other hand, concerning a
merger, consolidation or acquisition, tender offer or other acquisition of
securities, election of directors, a sale or other transfer of a material amount
of assets or concerning any other transactions with the Company that are
required to be disclosed pursuant to the rules and regulations of the
Commission.
9. BACKGROUND OF THE OFFER
For the past several years, the Company has continuously reviewed possible
acquisitions of companies and/or product lines, strategic alliances through
joint ventures or investment, and license arrangements. In September 1995, the
Company retained TM Capital Corp. ("TM Capital") to assist in seeking such
business prospects and in obtaining long-term debt. One of the companies
contacted about these activities made a proposal to acquire the Company.
However, that proposal was deemed inadequate by the Company. As a result of
on-going consolidation and increasing competition for suitable acquisition
candidates and reasonably valued opportunities in the diagnostic industry, in
the fall of 1997, the Company chose to broaden its options to include the
partial sale or complete sale of the Company.
On November 17, 1997, the Company retained DLJ and subsequently terminated
the services of TM Capital.
During November 1997, DLJ prepared a Confidential Information Memorandum
describing the Company. In December 1997, DLJ began contacting companies based
upon a list compiled by DLJ and the Company of companies which might be
potentially interested in pursuing a strategic transaction with the Company. In
addition, the Company and DLJ received unsolicited inquiries with respect to a
transaction. Of the companies contacted or those which initiated contact, 26
companies executed confidentiality agreements and were provided with the
Confidential Information Memorandum. Parent participated in this process and
entered into a Confidentiality Agreement with the Company on February 22, 1998.
After having reviewed such information, seven parties, including Parent,
indicated that they had a preliminary interest with respect to an acquisition
transaction and desired to conduct a business, financial and legal review of the
Company. The Company and DLJ subsequently reviewed and discussed these
indications of preliminary interest. In late January 1998, the Company
established a data room where such parties could perform their due diligence. A
number of companies, including Parent, visited the data room.
On February 23 and 24, 1998, after visiting the data room, representatives
of Parent met with the Company's senior management in London, reviewed and
requested additional documents and visited the Company's facility in Dartford,
England, and also toured the Company's manufacturing facilities in Norcross,
Georgia and South Africa on February 24 and 27, 1998, respectively.
At the direction of the Company, DLJ issued guidelines for submitting
proposals. Such proposals were required to be submitted by March 3, 1998, with
some extensions granted. The Company subsequently received four proposals,
containing various differing terms and conditions.
On March 3, 1998, Parent wrote to the Company proposing a transaction
offering $11.00 per Share for all outstanding Shares on a cash basis, and
requested a reply by March 4, 1998.
On March 6, 1998, Mr. Cusick called an officer at Parent stating the amount
offered was inadequate, and rejected the proposal.
On March 9, 1998, an officer of Parent called Mr. Cusick and requested a
meeting to discuss a new proposal.
17
On the evening of March 9, 1998, representatives of the Company and Parent
met to negotiate Parent's new proposal. After discussions, Parent proposed a
cash tender offer at $13.00 per Share for 100% of the Company's outstanding
Shares, contingent upon negotiation of satisfactory terms of an acquisition
agreement including negotiation of an agreement on major issues such as the
transaction fees and the negotiation and receipt of shareholder agreements. Such
amount was superior to the consideration offered in the other proposals received
by the Company.
On March 11, 1998, counsel to Parent provided the Company with an initial
draft of the Acquisition Agreement and the form of shareholder agreement.
Between March 11 and March 16, 1998, extensive negotiations were conducted as to
the details of the transaction and the draft agreements.
Based upon Parent's insistence that principal shareholders enter into
shareholders agreements, on March 12 and 13, 1998, the Company contacted certain
principal shareholders. The Company then reached agreement with five principal
shareholders who agreed to deliver shareholder agreements if the Company reached
agreement with Parent.
On March 13, 1998, the Board of Directors of Parent and Purchaser both held
telephonic meetings at which time both such Boards of Directors unanimously
approved the Acquisition Agreement and the transactions contemplated thereby.
On March 14, 1998, the Company and Parent reached an agreement on the
transaction fees, subject to agreement on the remaining open issues.
The Company's Board of Directors held telephonic meetings on March 13 and
March 14 to discuss the progress of the negotiations, the terms and structure of
the proposed transaction and the open issues. During the evening of March 15,
the Company's Board of Directors again met telephonically, at which time
management and counsel described the final draft agreements and the resolution
of the open issues. Representatives of DLJ explained the factors it had
considered in rendering a fairness opinion and then read the fairness opinion.
The Board of Directors then unanimously approved the Acquisition Agreement and
the transactions contemplated thereby.
Early the next morning, Parent, Purchaser and the Company entered into the
Acquisition Agreement, and Parent and the shareholders entered into shareholder
agreements. The parties announced the transaction later that morning pursuant to
a press release.
10. PURPOSE OF THE OFFER; THE ACQUISITION AGREEMENT
PURPOSE OF THE OFFER
The purpose of the Offer is to enable Purchaser to acquire any and all
outstanding Shares. If Purchaser purchases Shares pursuant to the Offer,
Purchaser intends to exercise its statutory right, if and to the extent
available, to acquire all of the Shares not purchased in the Offer by way of an
amalgamation, statutory arrangement or other transaction.
Section 255 of the BCCA permits an offeror to acquire shares not tendered to
an offer for all of the shares of a particular class of shares of a corporation
if, within four months after the date of the offer, the offer is accepted by the
holders of not less than 90% of the shares to which the offer relates, other
than shares held at the date of the offer by or on behalf of the offeror or its
affiliates or associates (as such terms are defined in the BCCA).
If, pursuant to the Offer, Purchaser acquires less than such number of
Shares or elects not to pursue a Compulsory Acquisition of Shares under the BCCA
or such provisions are not otherwise available, Purchaser is required under the
Amalgamation Agreement to attempt to effect the Amalgamation. The Amalgamation
will constitute a related party transaction and may constitute a going private
transaction under applicable Canadian law.
18
THE ACQUISITION AGREEMENT
The following is a brief summary of certain provisions of the Acquisition
Agreement. This summary does not purport to be complete and is qualified in its
entirety by reference to the Acquisition Agreement which has been filed as an
exhibit to the Schedule 14D-1.
THE OFFER
Pursuant to the terms of the Acquisition Agreement, Purchaser was required
to commence the Offer no later than the fifth business day following the public
announcement of the terms of the Acquisition Agreement. The obligation of
Purchaser to accept for payment and pay for any Shares tendered pursuant to the
Offer is subject only to the Offer Conditions. Purchaser may increase the Offer
Price and may make any other changes in the terms and conditions of the Offer,
provided that Purchaser may only waive the Minimum Condition as long as
Purchaser purchases at least a majority of the Shares outstanding (assuming the
exercise of all outstanding options to purchase Shares which options are not
subject to binding agreements to cancel) and that, unless previously approved by
the Company in writing, no change may be made that decreases the price per Share
payable in the Offer, changes the form of consideration payable in the Offer,
reduces the maximum number of Shares that Subsidiary offers to purchase in the
Offer below a majority of the Shares outstanding (assuming the exercise of all
outstanding options to purchase Shares which options are not subject to binding
agreements to cancel), imposes conditions to the Offer in addition to the
conditions set forth in Section 13 or otherwise amends the terms of the Offer in
any way that would be materially adverse to holders of Shares.
Subject to the satisfaction of the conditions set forth in Section 13,
Purchaser has agreed to accept for payment and pay for Shares which have been
validly tendered and not withdrawn pursuant to the Offer as soon as it is
permitted to do so under applicable law. Notwithstanding the foregoing,
Purchaser (i) may extend the Offer to purchase Shares in excess of the Shares
required to satisfy the Minimum Condition up to the tenth business day following
the date on which all conditions to the Offer will first have been satisfied or
waived, provided that, by virtue of making any such extension, Purchaser will be
deemed to waive and thereafter shall not be entitled to assert any of the
conditions to the consummation of the Offer contained in subsections (b), (c),
(d) or (e) of Section 13, (ii) shall extend the Offer at least until 11:59 p.m.
New York City time on the sixth business day following the delivery to Parent of
a Notice of Superior Proposal (as defined below) and (iii) shall extend the
Offer at least until the expiration of the period set forth in subsections (d)
or (e) of Section 13 if a notice of breach has been delivered in accordance
therewith.
The Offer Price payable in the Offer shall be paid net to the seller in
cash, upon the terms and subject to the conditions of the Offer.
The Acquisition Agreement requires, as soon as practicable on the date of
commencement of the Offer, (a) Parent and Purchaser to file (i) with the
Commission a Tender Offer Statement on Schedule 14D-1 with respect to the Offer
and (ii) with the appropriate Canadian authorities any required filings with
respect to the Offer, which in the case of both (i) and (ii) will contain the
offer to purchase and form of the related letter of transmittal and (b) the
Company to file a combined Solicitation/Recommendation Statement on Schedule
14D-9 and any Director Circulars' required by Canadian law which it will mail to
shareholders promptly after the commencement of the Offer. Purchaser and the
Company also agreed to take all steps necessary to cause the offer to purchase
and form of the related letter of transmittal to be disseminated to holders of
Shares as and to the extent required by applicable U.S. and Canadian laws.
At the consummation of the Offer, the Company's Board of Directors will (i)
terminate the International Murex Technologies Corporation Amended and Restated
Employee Stock Purchase Plan ("ESPP") and (ii) notify all participants
thereunder of its termination.
19
The Company represented in the Acquisition Agreement that the Company's
Board of Directors had made appropriate amendments to and determinations (the
"Rights Plan Amendments and Determinations") under the Company's Rights Plan
dated August 31, 1995 between the Company and The Bank of New York (the "Rights
Plan"), including without limitation: (i) an amendment to the definition of
"Acquiring Person" under the Rights Plan to exclude Parent, Purchaser and their
subsidiaries from that definition; (ii) an amendment to the definition of
"Separation Time" under the Rights Plan to provide that the Separation Time
shall not occur by virtue of the execution of the Acquisition Agreement or the
Major Shareholder Agreements (as defined below), the consummation of the
transactions contemplated or permitted thereunder or the acquisition or purchase
of Shares by Parent, Purchaser or their subsidiaries and a determination by the
Company's Board of Directors to the same effect; and (iii) a determination by
the Company's Board of Directors approving the acquisition of Shares by Parent,
Purchaser or their subsidiaries pursuant to this Agreement or the Major
Shareholder Agreements, or any other acquisition or purchase of Shares by
Parent, Purchaser or their subsidiaries.
BOARD REPRESENTATION
Promptly upon the purchase by Purchaser of Shares pursuant to the Offer and
from time to time thereafter, Purchaser will be entitled to designate a number
of directors on the Company's Board of Directors equal to the product of (i) the
total number of directors on the Company's Board of Directors and (ii)
Purchaser's percentage ownership of the outstanding Shares of the Company. The
Company will either increase the size of the Company's Board of Directors or
secure the resignation of the necessary number of directors to enable
Purchaser's designees to be elected to the Company's Board of Directors, and
will cause such designees to be elected to the Company's Board of Directors;
provided, however, that at all times prior to the Completion of the Acquisition
at least two persons who are directors of the Company as of March 13, 1998 (or
persons designated by them) ("Continuing Directors") shall remain directors of
the Company.
Following the election or appointment of Purchaser's designees, any
amendment to the Acquisition Agreement or the Articles of Association or the
Memorandum of Association, any termination of the Acquisition Agreement by the
Company, and any extension by the Company of the time for performance of
obligations or the waiver of any rights under the Acquisition Agreement will
require the concurrence of at least fifty percent of the Continuing Directors.
COMPANY STOCK OPTIONS
Unless Parent and the Company make the Option Election (as defined below),
the Company will, prior to completion of the Offer: (i) use its best efforts to
amend each outstanding stock option, warrant or other right to acquire Shares
("Company Options") or any plans with respect to Company Options to permit
vesting of unvested and exercise of Company Options contingent on consummation
of the Offer; (ii) declare all Company Options to be fully exercisable and
vested prior to the completion of the Offer and contingent on consummation of
the Offer; and (iii) use its best efforts to cause the holders of Company
Options to exercise their Company Options and tender the Shares so acquired in
the Offer.
Parent and the Company may agree, after consulting their respective counsel,
to implement the steps described in this paragraph (the "Option Election")
instead of the steps described in the preceding paragraph. If the parties make
the Option Election: (i) immediately prior to consummation of the Offer, the
Company will offer to pay to the holder of each Company Option, in exchange for
the agreement by such holder to cancel his, her or its Company Options, an
amount equal to (x) the difference between the Offer Price and the per Share
exercise price of such Company Option, multiplied by (y) the number of Shares
underlying such holder's Company Option; (ii) the Company will use its best
efforts to cause the holders of Company Options to accept the Company's offer
set forth above and enter into appropriate cancellation agreements; and (iii)
Parent will, immediately following consummation of the Offer, lend to (subject
to any of the Company's contractual restrictions and at the applicable federal
rate) or contribute to the capital of the Company cash in an amount equal to the
amount necessary to satisfy payment by the Company of the amounts required under
the Option Election.
20
The Company, Parent and the Company's Board of Directors shall take whatever
actions are required such that, as of the Effective Time, any Company Options
not exercised or canceled pursuant to the preceding two paragraphs are converted
into a fully vested and exercisable right to acquire common stock of Parent in a
manner that is substantially consistent with the requirements applicable to
"issuing or assuming a stock option in a transaction to which section 424(a)
applies," as that phrase is defined in Section 424(a) of the Code; provided that
the Company Options (and any replacements) will not confer on the holders
thereof any rights to acquire securities of the Company. Parent will cooperate
in whatever actions are required for the Company's Board of Directors to
implement this paragraph.
THE ACQUISITION
The Acquisition Agreement provides for the completion of the acquisition of
the Company by Purchaser or Parent (the "Completion of the Acquisition") through
either (1) the Compulsory Acquisition if Purchaser has purchased at least 90% of
the outstanding Shares in the Offer to permit a Compulsory Acquisition or, if
not, (2) the Amalgamation of Purchaser with the Company following the Offer upon
the terms and subject to the conditions summarized below and set forth in the
Acquisition Agreement and in any other agreement required to effect the
Amalgamation.
The Acquisition will become effective (the "Effective Time") (i) in the case
of the Compulsory Acquisition, at such time as all outstanding Shares are owned,
directly or indirectly, by Purchaser or Parent, and (ii) in the case of the
Amalgamation, at the time at which a certificate of amalgamation is issued by
the British Columbia Registrar of Companies.
Purchaser must own 90% or more of the outstanding Shares to effect a
Compulsory Acquisition. Subject to the satisfaction or waiver of the conditions
set forth in "Conditions to the Completion of the Acquisition" below, if after
purchasing Shares in the Offer (and, if Purchaser chooses to do so, through open
market purchases for 30 days or less), Purchaser owns enough Shares to
effectuate a Compulsory Acquisition, Purchaser shall, as promptly as practicable
thereafter, effectuate a Compulsory Acquisition in which every shareholder of
the Company other than Purchaser surrenders his, her or its ownership of Shares
to Purchaser in exchange for the payment by Purchaser to each such shareholder
of the Offer Price, all in accordance with the provisions of Section 255 of the
BCCA. Purchaser will as promptly as practicable make such filings and take such
other actions as are necessary to implement the Compulsory Acquisition.
Following a Compulsory Acquisition, the Company would continue in its present
form.
Subject to the satisfaction or waiver of the conditions set forth in
"Conditions to the Completion of the Acquisition" below, if after purchasing
Shares in the Offer, Purchaser does not own enough Shares to effectuate a
Compulsory Acquisition (and has not acquired enough Shares within 30 days
through open market purchases if Purchaser has chosen to make such open market
purchases), the parties will as soon as practicable thereafter consummate the
Amalgamation as described in the next sentence and in any amalgamation agreement
entered into to effect the Amalgamation (the "Amalgamation Agreement"). At the
Effective Time of the Amalgamation: (i) Purchaser will amalgamate with the
Company; (ii) the separate existence of Purchaser and the Company will cease;
and (iii) Amalco will continue as the successor company to the business and the
undertakings theretofore undertaken by the Company and Purchaser.
In connection with an Amalgamation, the Company, acting through the
Company's Board of Directors, will, in accordance with applicable law as soon as
practicable following the consummation of the Offer:
(i) duly call, give notice of, convene and hold an annual or special
meeting of its shareholders (the "Shareholders' Meeting") for the purpose of
considering the Amalgamation;
21
(ii) subject to the Company's Board of Directors' fiduciary obligations
under applicable law, include in the Proxy Statement for the Shareholders'
Meeting the recommendation of the Company's Board of Directors that
shareholders of the Company vote in favor of the Amalgamation and the
transactions contemplated by the Acquisition Agreement; and
(iii) use its reasonable best efforts (A) to obtain and furnish the
information required to be included by it in the Proxy Statement and, after
consultation with Parent, respond promptly to any comments made by the
Commission or the appropriate Canadian authorities with respect to the Proxy
Statement and any preliminary version thereof and cause the Proxy Statement
to be mailed to its shareholders at the earliest practicable time following
the consummation of the Offer and (B) to obtain the necessary approvals by
its shareholders of the Amalgamation.
Parent will, and will cause Purchaser to, cause all Shares beneficially
owned by them to be present and voting for the purpose of a quorum and to be
voted affirmatively in favor of the Amalgamation at any meeting or solicitation
of consents with respect thereto.
At the Effective Time, by virtue of the Amalgamation and without any action
on the part of Parent, Purchaser, the Company or the holders of any of the
following securities:
(i) Each Share outstanding immediately prior to the Effective Time (except
Shares subject to (b)) will be exchanged for one Preference Share, as
contemplated in the Amalgamation Agreement. In turn, each Preference Share will
be immediately redeemed by Amalco upon payment to each remaining holder of
Shares of the Offer Price for each Share.
(ii) Any Shares issued and outstanding immediately prior to the Effective
Time and owned directly or indirectly by Purchaser, if any, will be canceled and
retired, and no consideration will be delivered in exchange therefor.
(iii) Each common share of Purchaser outstanding immediately prior to the
Effective Time will be exchanged for an identical number of Amalco common
shares.
As soon as practicable after the Effective Time, Parent will cause The Bank
of New York (the "Exchange Agent") to mail to each person who was a holder of
record of Shares or Company Options at the Effective Time: (i) a letter of
transmittal (which will specify conditions on the exchange of Shares); and (ii)
instructions for use in effecting the surrender of Share certificates in
exchange for the aggregate Offer Price due each holder of Shares at the
Effective Time. Upon surrender of Share certificates for cancellation to the
Exchange Agent or to such other agent or agents as may be appointed by Parent,
together with such letter of transmittal, duly executed, and such other
documents as may be required by the Exchange Agent or such other agent, the
holder of such Share certificates will be entitled to receive in exchange
therefor the aggregate amount of the Offer Price due each holder of Shares at
the Effective Time and the Share certificates so surrendered will be canceled.
After the Effective Time, each outstanding Share certificate will, until
surrendered for exchange as described above, be deemed for all purposes to
evidence only the right to receive the aggregate Offer Price in respect of such
Share certificate.
Notwithstanding anything in the Acquisition Agreement to the contrary, a
shareholder of the Company who did not tender Shares pursuant to the Offer may
exercise the rights granted under the BCCA to apply to court in connection with
Purchaser's plan to acquire any outstanding Shares pursuant to the Compulsory
Acquisition. A shareholder of the Company who did not tender Shares pursuant to
the Offer may exercise rights of dissent in the manner set forth in Section 207
of the BCCA in connection with the Amalgamation. If, after the Effective Time,
such holder fails to perfect or withdraws or loses his, her or its right to
apply to court to dissent, as applicable, such Shares will be treated as if they
had been converted, as of the Effective Time, into a right to receive the Offer
Price without interest thereon. The Company will give Parent prompt notice of
any notices or demands received by the Company for
22
appraisal of Shares, and, prior to the Effective Time, Parent will have the
right to participate in all negotiations and proceedings with respect to such
demands. Prior to the Effective Time, the Company shall not, except with the
prior written consent of Parent, make any payment with respect to, or settle or
offer to settle, any such demands.
REPRESENTATIONS AND WARRANTIES
The Acquisition Agreement contains various representations and warranties of
the Company, including representations by the Company as to: (i) organization,
qualification and similar corporate matters of the Company and its subsidiaries,
(ii) capitalization of the Company and its subsidiaries, (iii) the
authorization, execution, delivery, performance and enforceability of the
Acquisition Agreement, (iv) the non-contravention of the Acquisition Agreement
and related transactions with any provision of the Memorandum of Association or
Articles of Association, material contract, order, law or regulation to which
the Company or its subsidiaries is a party or by which it is bound or obligated,
(v) the filing of required Commission reports and the absence of untrue
statements of material facts or omissions of material facts in such reports,
(vi) the absence of changes or events which have had a material adverse effect
on the Company and the absence of certain derivative instruments that would
result in a material adverse effect on the Company, (vii) the absence of any
untrue statement of a material fact or omission of any material fact required to
be stated in any recommendation statement of the Company's Board of Directors or
document related to the Offer, (viii) the absence of payments to any
intermediary other than listed intermediaries of any finder's, professional or
other fee or commission, (ix) claims and litigation, (x) the filing of tax
returns and the payment of taxes, (xi) employee benefits matters, (xii)
compliance with laws, rules, statutes, orders, ordinances or regulations, and
material notes, bonds, mortgages, indentures, contracts, agreements, leases,
licenses, permits, franchise or other instruments or obligations of the Company
or any of its subsidiaries which would result in a material adverse effect,
(xiii) the absence of environmental claims and compliance with all environmental
laws and regulations, (xiv) possession of all necessary rights and licenses in
intellectual property, (xv) contracts, agreements, indentures, leases,
mortgages, licenses, plans, arrangements, understandings, commitments and other
instruments (the "Significant Agreements"), (xvi) possession of all necessary
insurance, (xvii) the absence of real property ownership and the possession and
enforceability of all real property leases, (xviii) labor matters, (xix) the
absence of notices, citations or decisions of governmental or regulatory bodies
and recalls or warning letters from the Food and Drug Administration or non-U.S.
counterparts with respect to any product produced, manufactured, marketed or
distributed by the Company, and possession of and compliance with all necessary
approvals, clearances, authorizations, licenses and registrations relating to
the such products and (xx) applicable voting requirements.
The Acquisition Agreement contains various customary representations and
warranties of Parent and Purchaser, including representations by Parent and
Purchaser as to: (i) organization, qualification and similar corporate matters
of Parent and Purchaser, (ii) the authorization, execution, delivery,
performance and enforceability of the Acquisition Agreement, (iii) the
non-contravention of the Acquisition Agreement and related transactions with any
provision of the Certificate of Incorporation or By-Laws of Parent, the
Memorandum of Association or Articles of Association of Purchaser, by-law,
material contract, order, law or regulation to which Parent or Purchaser is a
party or by which it is bound or obligated, (iv) the absence of untrue
statements of material facts or omissions of material facts in any documents
related to the Offer and in information provided to the Company in connection
with the Schedule 14D-1 and proxy statement, (v) the absence of prior activities
of Purchaser other than in connection with or as contemplated by the Acquisition
Agreement, (vi) the availability of all funds necessary to satisfy Purchaser's
obligations under the Acquisition Agreement and (vii) the lack of beneficial or
record ownership of any Shares by Parent or Purchaser immediately prior to
execution of the Acquisition Agreement.
23
COVENANTS
CONDUCT OF BUSINESS OF THE COMPANY. From the date of the Acquisition
Agreement to the time Purchaser's designees are elected as directors of the
Company, the Company and its subsidiaries will each conduct its operations in
the ordinary course of business consistent with past practice, and the Company
and its subsidiaries will each use its reasonable best efforts to preserve its
business organization, to keep available the services of its officers and
employees and to maintain existing relationships with licensors, licensees,
suppliers, contractors, distributors, customers and others having business
relationships with it.
Accordingly, prior to the date Purchaser's designees are elected to the
Company's Board of Directors, neither the Company nor any of its subsidiaries
may, without the prior written consent of Purchaser, which consent will not be
unreasonably withheld or delayed, engage or agree to engage in an enumerated
list of transactions generally characterized as being outside the ordinary
course of business. Transactions requiring Purchaser's prior approval include
actions by the Company or its subsidiaries to: (i) amend its Articles of
Association or Memorandum of Association or increase or propose to increase the
number of directors; (ii) authorize for issuance, issue, sell, deliver or agree
to commit to issue, sell or deliver any stock of any class or any other
securities or equity equivalents (including, without limitation, stock
appreciation rights), except under the ESPP, the issuance of up to 16,816 Shares
pursuant to the Company's bonus plan or as required by option agreements and
option plans as in effect as of the date of the Acquisition Agreement, or amend
any of the terms of any such securities or agreements outstanding as of the date
of the Acquisition Agreement; (iii) split, combine or reclassify any shares of
its capital stock, declare, set aside or pay any dividend or other distribution
(whether in cash, stock, or property or any combination thereof) in respect of
its capital stock, or redeem, repurchase or otherwise acquire any of its
securities or any securities of its subsidiaries; (iv) incur any debt or issue
any debt securities or assume, guarantee or endorse the obligations of any other
person, make any loans, advances or capital contributions to, or investments in,
any other person (other than to wholly owned subsidiaries of the Company),
pledge or otherwise encumber shares of capital stock of the Company or any of
its subsidiaries or mortgage or pledge any of its assets or create any Lien
thereupon other than Permitted Liens (as defined in the Acquisition Agreement);
(v) enter into, adopt, amend or terminate any bonus, compensation, severance,
termination, or employee benefit arrangement not required by any such plan or
arrangement; (vi) acquire, sell, lease, license, encumber, transfer or dispose
of any assets of the Company and its subsidiaries; (vii) change any of the
accounting principles or practices used by it, except as may be required as a
result of a change in law or in generally accepted accounting principles; (viii)
acquire any corporation, partnership or other business organization or division
thereof, authorize any new capital expenditure in excess of U.S.$200,000 between
March 13, 1998 and March 31, 1998 and, thereafter, in excess of the amounts set
forth in the monthly capital budgets to be prepared by the Company and approved
by Parent in its reasonable discretion or settle any litigation; (ix) make any
material tax election or settle or compromise any material tax liability; (x)
pay, discharge or satisfy any claims, liabilities or obligations outside the
ordinary course or not in accordance with their terms, except where such action
would not result in a material adverse effect; (xi) terminate, modify, amend or
waive compliance with any material provision of, any of the Significant
Agreements, or fail to take any action necessary to preserve the material
benefits of any Significant Agreement to the Company or any of its subsidiaries;
(xii) enter into any agreement providing for the acceleration of payment or
performance or other consequence as a result of a change in control of the
Company; (xiii) enter into any agreement providing for any license (other than
trademark or service mark licenses under supply or distribution contracts
entered into in the ordinary course of business), sale, assignment or otherwise
transfer any patent rights or grant any covenant not to sue with respect to any
of its Intellectual Property; (xiv) enter into any commitments to professionals
outside the ordinary course of business or in excess of the amounts represented
and warranted; (xv) cancel or terminate any material
24
insurance policies (other than in connection with acquiring substantially
equivalent replacement policies) or reduce the amount of coverage thereunder; or
(xvi) agree to take any action which would violate the covenants.
ACCESS TO INFORMATION. The Company will give Parent and Purchaser and their
representatives reasonable access to all necessary information. Parent and
Purchaser have agreed to be bound by the Confidentiality Agreement dated
February 22, 1998, described below.
REASONABLE BEST EFFORTS. Each of the parties will use its reasonable best
efforts to take all actions and do all things reasonably necessary to consummate
and make effective the transactions contemplated by the Acquisition Agreement.
PUBLIC ANNOUNCEMENTS. Parent and Purchaser, on the one hand, and the
Company, on the other hand, will consult with each other before issuing any
press release or otherwise making any public statements with respect to the
transactions contemplated by the Acquisition Agreement.
INDEMNIFICATION. For a period not less than six years from the Effective
Time, Parent will (i) indemnify and hold harmless the directors, officers,
employees and agents of the Company (the "Indemnified Parties") from and against
claims, losses or obligations arising out of events occurring prior to the
Effective Time and relating to their service as a director, officer, employee or
agent of the Company except to the extent an Indemnified Party has acted in bad
faith or in a manner he did not reasonably believe to be in or not opposed to
the best interests of the Company or, with respect to any criminal action or
proceeding, had reasonable cause to believe his conduct was unlawful and (ii)
cause the Company or Amalco, as the case may be, to maintain in effect the
provisions in its Articles of Association and Memorandum of Association
containing the provisions with respect to exculpation of director and officer
liability and indemnification set forth in the Articles of Association and
Memorandum of Association of the Company on the date of the Acquisition
Agreement.
In the event of any claim made against an Indemnified Party covered above,
unless Parent, the Company or Amalco has elected to defend that claim, Parent,
the Company or Amalco shall advance the reasonable fees and expenses of counsel
selected by that Indemnified Party (which counsel shall be reasonably
satisfactory to Parent and which counsel shall be the same for all Indemnified
Parties unless a conflict of interest between them requires more than one
counsel), upon receipt of a written undertaking by or on behalf of that
Indemnified Party to repay such amounts if it shall ultimately be determined
that Indemnified Party is not entitled to be indemnified as described here.
Parent will cause Amalco to use its reasonable best efforts to maintain in
effect for six years from the Effective Time, to the extent available, the
coverage provided by the current directors' and officers' liability insurance
policies maintained by the Company with respect to matters occurring prior to
the Effective Time; provided, however, that Amalco will not be required to incur
any annual premium in excess of 200% of the last annual aggregate premium paid
prior to the date of the Acquisition Agreement for all current directors' and
officers' liability insurance policies maintained by the Company.
NOTIFICATION OF CERTAIN MATTERS. The Company will give prompt notice to
Parent or Purchaser, and Parent or Purchaser will give prompt notice to the
Company, as the case may be, of (i) the occurrence, or non-occurrence of any
event which would be likely to cause any representation or warranty contained in
the Acquisition Agreement to be untrue or inaccurate and (ii) any failure of the
Company, Parent or Purchaser, as the case may be, to comply with or satisfy any
covenant, condition or agreement under the Acquisition Agreement.
TERMINATION OF STOCK PLANS. The Company's Board of Directors (or, if
appropriate, any committee thereof) will adopt such resolutions or take such
other actions as are required (i) to suspend the ESPP and employee contributions
thereto effective as of March 16, 1998, (ii) to terminate the ESPP as of the
date that Shares are purchased in the Offer and (iii) to ratify, for purposes of
Section 16(b) of the
25
Exchange Act, the transactions described in this paragraph. If the date of the
consummation of the Offer occurs prior to the next Investment Date (as defined
in the ESPP), then the ESPP will refund the payroll deductions made by the ESPP
participants during the Offering Period (as defined in the ESPP) immediately
preceding that Investment Date to the participants. If the date of the
consummation of the Offer occurs on or after the Investment Date, then the
payroll deductions will be applied to make purchases of Shares as provided in
the ESPP.
Prior to the consummation of the Offer, the Company's Board of Directors
(or, if appropriate, any committee thereof) will adopt resolutions or take other
actions necessary to ensure that, following the Effective Time, no participant
in any stock, stock option, stock appreciation or other benefit plan of the
Company or any of its subsidiaries will have any right thereunder to acquire any
capital stock of Company or Amalco.
NO SOLICITATION. The Acquisition Agreement requires the Company immediately
to cease any existing discussions or negotiations with any third parties with
respect to any inquiry, proposal or offer for an amalgamation, merger,
consolidation, business combination, sale of substantial assets, sale of shares
of capital stock (including, without limitation, by way of a tender offer) or
similar transactions involving the Company or any of its subsidiaries (an
"Acquisition Proposal"). The Company will not, directly or indirectly, through
any officer, director, employee, representative or agent or any of its
subsidiaries, (i) solicit, initiate, continue or encourage an Acquisition
Proposal, (ii) solicit, initiate, continue or engage in negotiations or
discussions concerning, or provide any non-public information or data to any
person or entity relating to, any Acquisition Proposal, or (iii) agree to
approve or recommend any Acquisition Proposal; provided, that (A) if the
Company's Board of Directors determines, based on the written advice of its
independent financial advisors, that such Acquisition Proposal would, if
consummated, result in a transaction more favorable to the Company's
shareholders from a financial point of view than the transactions contemplated
by this Acquisition Agreement and the Company's Board of Directors determine in
good faith, based upon the written advice of independent legal counsel, that to
do so would be required for the discharge of its fiduciary obligations, the
Company may, after receiving an executed confidentiality agreement (with terms
no less favorable to the Company than those contained in the Confidentiality
Agreement entered into with Parent), furnish nonpublic information or data to,
or enter into discussions or negotiations with, any person in connection with an
unsolicited Acquisition Proposal or recommend an unsolicited Acquisition
Proposal to the shareholders of the Company or (B) the Company may comply with
Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition
Proposal.
If the Company's Board of Directors determine in good faith that any
Acquisition Proposal constitutes a Superior Proposal (as defined below), the
Company's Board of Directors will promptly give written notice, specifying the
identity of the other party and the structure and material terms of such
Superior Proposal (a "Notice of Superior Proposal"), to Parent. The Company's
Board of Directors may (subject to the following sentences of this paragraph and
compliance with the Termination paragraph below), to the extent the Company's
Board of Directors determines in good faith based upon written advice of
independent legal counsel that it is necessary in order to comply with its
fiduciary duties under applicable law, approve or recommend any such Superior
Proposal, approve or authorize the Company's entering into an agreement with
respect to such Superior Proposal, approve the solicitation of additional
takeover or other investment proposals or terminate the Acquisition Agreement,
in each case at any time after the fifth business day following delivery to
Parent of the Notice of Superior Proposal. The Company may take any of the
foregoing actions pursuant to the preceding sentence only if an Acquisition
Proposal that was a Superior Proposal at the time of delivery of a Notice of
Superior Proposal continues to be a Superior Proposal in light of any improved
transaction proposed by Parent prior to the expiration of the five business day
period specified in the preceding sentence. A "Superior Proposal" means any bona
fide proposal for an Acquisition Proposal that the Company's Board of Directors
determines in their good faith reasonable judgment, based on the written advice
of its financial advisors,
26
to be made by a person with the financial ability to consummate such proposal
and to provide greater aggregate value to the Company and/or the Company's
shareholders than the transactions contemplated by the Acquisition Agreement or
otherwise proposed by Parent as contemplated in this paragraph.
The Company will advise Parent of all such nonpublic information delivered
to such person, and will notify Parent immediately (and in no event later than
24 hours) after receipt by the Company of any Acquisition Proposal or any
request for nonpublic information in connection with an Acquisition Proposal or
for access to the properties, books or records of the Company by any person or
entity that informs the Company that it is considering making, or has made, an
Acquisition Proposal.
Such notice will be made orally and in writing and shall indicate in
reasonable detail the identity of the offeror and the terms and conditions of
such proposal, inquiry or contract.
CHIRON LICENSE AGREEMENT. Immediately following the execution of the
Acquisition Agreement, the Company delivered notice to Chiron Corporation
("Chiron") and Johnson & Johnson/Ortho Diagnostics Systems, Inc. ("Ortho")
pursuant to Clause 27 of the Agreement dated August 27, 1996 among Chiron,
Ortho, and the Company (the "Chiron/Ortho Agreement") that a Change in Control
(as defined therein) had occurred. Chiron and Ortho have the option, to be
exercised in writing within 15 business days to purchase at fair value the HCV
immunoassay business of the Company.
Without the prior written consent of Parent, the Company will not amend,
waive, modify, supplement or otherwise alter any provision of the Chiron/Ortho
Agreement, nor shall the Company offer to enter into or enter into any contract,
agreement, understanding or other arrangement with any person respecting the
Chiron/Ortho Agreement or the subject matter thereof. Without the prior written
consent of Parent, under no circumstances shall the Company propose, negotiate
or agree to any "fair value" as that term is described in Clause 27 of the
Chiron/Ortho Agreement except, after consultation with Parent, as is otherwise
specifically required to comply with the Chiron/Ortho Agreement or required by
applicable law. The Company and its affiliates will receive and retain
respectively, in the Company and, as the case may be, its affiliates, any and
all proceeds of any sale of the HCV immunoassay business for fair value pursuant
to Clause 27 of the Chiron/Ortho Agreement. No exercise of the option contained
in Clause 27 of the Chiron/Ortho Agreement or the sale of HCV immunoassay
business resulting therefrom shall be deemed to be a breach of any
representation, warranty or covenant contained in the Acquisition Agreement, nor
shall any such exercise be deemed to cause any condition contained in the
Acquisition Agreement or the Offer to be unsatisfied.
LITIGATION BETWEEN PARENT AND THE COMPANY. Immediately after the execution
of the Acquisition Agreement, the parties will (i) cease to actively prosecute
the patent infringement litigation between the Company and Parent, pending in
the District Court for the Northern District of Georgia (No. 96-CV1676) (the
"Abbott Litigation") and (ii) ask the court in the Abbott Litigation to stay
that litigation. Promptly after the purchase by Purchaser of Shares pursuant to
the Offer, the Company and Parent will take all steps necessary to dismiss with
prejudice the Abbott Litigation.
RIGHTS PLAN. Unless the Acquisition Agreement and the letter agreements
dated March 13, 1998 (the "Major Shareholder Agreements") among Parent and
Edward J. DeBartolo, Jr., the Estate of Edward J. DeBartolo, the University of
Notre Dame, C. Robert Cusick and Michael Warren have terminated without the
purchase or acquisition by Parent or one of its subsidiaries of Shares pursuant
to one or both of those agreements, the Company will not amend or modify the
Rights Plan in a manner that would in any way nullify or conflict with the
resolutions and determinations related to the Rights Plan approved by the
Company's Board of Directors on March 15, 1998 and will not adopt any new
shareholder rights plan or agreement or similar agreement, plan or measure that
would nullify or conflict with the Rights Plan Amendments and Determinations,
have an adverse effect on Parent, Purchaser or any of their subsidiaries if
Parent, Purchaser or any of their subsidiaries purchase or acquire, or propose
to
27
purchase or acquire, any securities of the Company or enter into any agreement
requiring or permitting the purchase or acquisition of any securities of the
Company.
POST-OPTION EXERCISE. If the Acquisition Agreement has been terminated and
Parent or any of its subsidiaries have purchased any Shares pursuant to any
Major Shareholder Agreement: (i) Parent and Purchaser will for six months
following such purchase use reasonable best efforts to consummate the
Amalgamation on essentially the same terms and conditions provided in the
Acquisition Agreement, except that certain of the conditions to closing will be
deemed to be waived; and (ii) if, despite the transaction contemplated by (i)
above, the Amalgamation is not effected, Parent has agreed that it and its
affiliates will not, for three years following the purchase of Shares pursuant
to any Major Shareholder Agreement, acquire beneficial ownership of any Shares
at less than the Offer Price (as adjusted for stock splits and similar events);
PROVIDED, HOWEVER, that the restrictions described in this paragraph will not
apply to the acquisition of less than 2% of the outstanding Shares by pension
plans or similar fiduciary entities of Parent.
CONDITIONS TO THE COMPLETION OF THE ACQUISITION
The obligations of the Company, Parent and Purchaser under the Acquisition
Agreement are subject to the satisfaction or, if appropriate, waiver of the
following conditions:
(i) SHAREHOLDER APPROVAL. If required by applicable law, the
Amalgamation will have been approved by the affirmative vote of the
shareholders of the Company by the requisite vote in accordance with
applicable law and any court approval required for the Amalgamation will
have been obtained.
(ii) NO PROHIBITION. No order, decree or ruling or other action
restraining, enjoining or otherwise prohibiting the Completion of the
Acquisition, which will have been issued or taken by any court or other
governmental body.
(iii) WAITING PERIOD. Any waiting period applicable to the
Completion of the Acquisition under applicable law will have terminated
or expired and the Canadian Office of Fair Trading has indicated, in
terms satisfactory to Parent and Purchaser, that it is not the intention
of the Canadian Secretary of State for Trade and Industry to refer the
proposed acquisition of the Company, or any matter arising therefrom
which directly affects Parent, Purchaser or the Company, to the Canadian
Monopolies and Mergers Commission.
(iv) PURCHASE OF SHARES. Purchaser will have purchased Shares
pursuant to the Offer.
The obligations of Parent and Purchaser under the Acquisition Agreement are
subject to the satisfaction or waiver by Parent at or prior to the Effective
Time of the following further conditions: (i) the Company will have performed in
all material respects its covenants, agreements and obligations up to the
Effective Time; and (ii) unless Purchaser has purchased Shares pursuant to the
Offer and except as otherwise contemplated by the Acquisition Agreement, the
representations and warranties of the Company contained in the Acquisition
Agreement which are qualified as to materiality will be true and correct and
those which are not so qualified will be true and correct in all material
respects, in each case, as of the date when made and at and as of the closing as
though newly made at and as of that time.
The obligations of the Company under the Acquisition Agreement are subject
to the satisfaction or waiver by the Company, at or prior to the Effective Time,
of the further condition that Parent and Purchaser will have performed in all
material respects their respective covenants, agreements and obligations under
the Acquisition Agreement up to the Effective Time.
28
TERMINATION
The Acquisition Agreement provides that the Acquisition Agreement may be
terminated and the Offer and the Completion of the Acquisition may be abandoned
(i) at any time prior to the Consummation of the Offer by mutual written consent
of Parent, Purchaser and the Company; (ii) at any time prior to the Effective
Time by Parent or the Company to the extent that performance is prohibited,
enjoined or otherwise materially restrained by any final, non-appealable
judgment; (iii) at any time on or after August 31, 1998 if Purchaser has not
purchased any Shares pursuant to the Offer; PROVIDED, that the right to
terminate the Acquisition Agreement under this clause is not available to any
party whose failure to fulfill any obligation under the Acquisition Agreement
has been the cause of or resulted in such failure to purchase; (iv) by Parent
prior to the purchase by Purchaser of Shares pursuant to the Offer, if (a) there
has been a breach of any representation or warranty of the Company contained in
the Acquisition Agreement which would reasonably be expected to materially and
adversely affect the expected benefits for Parent of the transactions
contemplated under the Acquisition Agreement or prevent the consummation of the
Offer or the Completion of the Acquisition or (b) there has been a breach of any
covenant or agreement of the Company contained in the Acquisition Agreement
which would reasonably be expected to materially and adversely affect the
expected benefits for Parent of the transactions contemplated hereunder or
prevent the consummation of the Offer or the Completion of the Acquisition and
which, in the case of either (a) or (b) above, if curable, has not been cured
prior to the earlier of ten business days following notice of such breach; (v)
prior to the purchase of Shares pursuant to the Offer and no earlier than five
business days after the receipt by Parent of a Notice of Superior Proposal, if
the Superior Proposal described in such Notice of Superior Proposal continues to
be a Superior Proposal in light of any transaction proposed by Parent prior to
the expiration of the fifth business day after the receipt by Parent of such
Notice of Superior Proposal, by the Company if the Company's Board of Directors
determine in good faith, based upon the written advice of its independent
financial advisors, that such Acquisition Proposal would, if consummated, result
in a transaction more favorable to the Company's shareholders from a financial
point of view than the transactions contemplated by the Acquisition Agreement
and the Company's Board of Directors determines in good faith, based upon the
written advice of independent legal counsel, that such action is required for
the discharge of their fiduciary duties to shareholders under applicable law;
(vi) at any time prior to the Consummation of the Offer by Parent if the
Company's Board of Directors withdraws or modifies in a manner adverse to Parent
or Purchaser its approval of the Offer, the Acquisition Agreement, the
Completion of the Acquisition, its recommendation to the Company's shareholders;
or (vii) by the Company prior to the purchase by Purchaser of Shares pursuant to
the Offer, if there shall have been a breach of any representation or warranty
of Parent or Purchaser contained in the Acquisition Agreement which would
reasonably be expected to materially and adversely affect the expected benefits
for the Company's shareholders of the transactions contemplated under the
Acquisition Agreement or prevent the consummation of the Offer or the Completion
of the Acquisition or there has been a breach of any covenant or agreement of
Parent or Purchaser contained in the Acquisition Agreement which would
reasonably be expected to materially and adversely affect the expected benefits
for the Company's shareholders of the transactions contemplated hereunder or
prevent the consummation of the Offer or the Completion of the Acquisition and
which, in the case of either (a) and (b) above, if curable, has not been cured
prior to ten business days following notice of such breach.
If the Acquisition Agreement is terminated pursuant to (a) clause (iii) due
to a failure to satisfy the Minimum Condition at any time after any person has
made an Acquisition Proposal and, within twelve months of the date of such
termination, the Company enters into a definitive agreement relating to an
Acquisition Proposal at a price per Share that exceeds the Offer Price with any
person, (b) clauses (iv), (v) or (vi) above, the Company will pay Parent a
non-refundable fee of U.S.$10 million plus expenses of U.S.$2 million (except
for a termination under clause (iv) above, in which case only expenses of U.S.$2
million shall be payable).
29
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties in the Acquisition Agreement shall not
survive beyond the consummation of the Offer. The covenants and agreements in
the Acquisition Agreement shall survive in accordance with their respective
terms, including, but not limited to the "Indemnification" paragraph above.
AMENDMENT; EXTENSION; WAIVER
Subject to approval by the Company's Board of Directors in the manner
described above under "Board Representation," the Acquisition Agreement may be
amended by the Company, Parent and Purchaser in a writing signed on behalf of
each of the parties; however, after approval of the Acquisition by the
shareholders of the Company (if required by applicable law), no amendment may
decrease the Offer Price or change the form thereof which adversely affects the
shareholders without approval of such shareholders.
Subject to approval by the Company's Board of Directors in the manner
described above under "Board Representation," at any time prior to the Effective
Time, the Company, on the one hand, and Parent and Purchaser, on the other hand,
may in writing (i) extend the time for the performance of any of the obligations
or other acts of the other party, (ii) waive any inaccuracies in the
representations and warranties of the other party or (iii) waive compliance by
the other party with any of the agreements or conditions contained in the
Acquisition Agreement.
EXPENSES
Subject to the payment of a fee by the Company to Purchaser if the
Acquisition Agreement is terminated under certain circumstances, each party
shall bear its own expenses and costs in connection with the Acquisition
Agreement and the transactions contemplated thereby.
GOVERNING LAW
The Acquisition Agreement is governed by and construed in accordance with
the laws of the State of Illinois, without regard to the principles of conflict
of laws thereof.
SHAREHOLDER AGREEMENTS
The following summary of the Major Shareholder Agreements and the
Shareholder Letters does not purport to be complete and is qualified in its
entirety to the complete text of such agreements, which are filed as exhibits to
the Schedule 14D-1 and incorporated herein by reference.
Pursuant to the Major Shareholder Agreements among Parent and Edward J.
DeBartolo, Jr., the Estate of Edward J. DeBartolo, the University of Notre Dame,
C. Robert Cusick and F. Michael P. Warren (each a "Major Shareholder"), the
Major Shareholders have agreed to tender all of the Shares held by them into the
Offer. In addition, the Major Shareholders have granted Parent an option (the
"Major Shareholder Options") to purchase all Shares held by them for the Offer
Price. The Major Shareholder Options are exercisable by Parent at any time until
the Acquisition Agreement is terminated, unless the Acquisition Agreement is
terminated (i) by Parent due to a material breach by the Company under the
Acquisition Agreement, (ii) by the Company in the event of a Superior Proposal
if the Company's directors determine that such action is required for the
discharge of their fiduciary duties to shareholders or (iii) by Parent if the
Company's Board of Directors shall have withdrawn or modified its recommendation
regarding the Offer, the Agreement, the Compulsory Acquisition or the
Amalgamation or the Company shall have entered into an agreement providing for
an Acquisition Proposal, in which case, the Major Shareholder Options may be
exercised by Parent until the later of (A) five business days following such
termination of the Acquisition Agreement or (B) two business days following the
receipt by Parent
30
of any required governmental consents required in connection with the exercise
of the Major Shareholder Options.
Pursuant to the Major Shareholder Agreements, the Major Shareholders have
agreed not to sell, transfer or encumber any of the Shares held by them except
in the Offer or otherwise to Parent. In addition, the Major Shareholders have
agreed to vote, to the extent they are permitted to vote at law, all of the
Shares held by them (i) in the manner directed by Parent with respect to any
matters related to the acquisition of the Company by Parent and (ii) against any
other amalgamations, mergers, recapitalizations, business combinations, sales of
assets, liquidations or similar transactions involving the Company, or any other
matters which would be inconsistent with Parent's intended acquisition of the
Company. In furtherance of such voting agreement, the Major Shareholders have
granted Parent an irrevocable proxy to vote all of the Shares held by them in
accordance with the foregoing on any matters which may be presented to
shareholders of the Company with respect to any matters related to the
acquisition of the Company by Parent or any other amalgamations, mergers,
recapitalizations, business combinations, sales of assets, liquidations or
similar transactions involving the Company, or any other matters which would be
inconsistent with Parent's proposed acquisition of the Company.
As of the date of this Offer to Purchase, the Major Shareholders
collectively held 5,980,499 Shares, representing approximately 33.9% of the
Shares outstanding as of March 12, 1998.
Parent attempted to obtain commitments similar to the Major Shareholder
Agreements with Oracle Partners, L.P. and Citinvest Value Investment Portfolio
(VIP) Selector (the "Other Shareholders") but was unseccessful. Instead,
pursuant to letters dated March 13, 1998 (the "Shareholder Letters") from the
Other Shareholders, the Other Shareholders have indicated to the Company their
intention to tender all of the Shares held by them into the Offer. The
Shareholder Letters expire on the earlier of the termination of the Acquisition
Agreement or May 15, 1998. As of the date of this Offer to Purchase, the Other
Shareholders collectively held 1,935,617 Shares, representing approximately
11.5% of the Shares outstanding as of March 12, 1998.
AMENDMENT TO RIGHTS PLAN
The following summary of the Rights Plan amendment does not purport to be
complete and is qualified in its entirety by reference to the complete text
thereof, which is filed as an exhibit to the Schedule 14D-1 and incorporated
herein by reference.
Pursuant to the Acquisition Agreement, the Company amended the Rights Plan
as of March 13, 1998 to exclude Parent, Purchaser and their subsidiaries from
the definition of "Acquiring Person" therein and to clarify that the execution
of the Acquisition Agreement, the execution of the other agreements referenced
in the Acquisition Agreement, the consummation of the transactions contemplated
by the Acquisition Agreement or the acquisition of Shares by Parent, Purchaser
or their subsidiaries will not result in a "Separation Time" under the Rights
Plan. The effect of these amendments is among other things, to permit Purchaser
to acquire Shares pursuant to the Offer, the Completion of the Acquisition, the
Major Shareholder Options and otherwise without adverse consequences.
CONFIDENTIALITY AGREEMENT
The following summary of the Confidentiality Agreement does not purport to
be complete and is qualified in its entirety by reference to the complete text
of the Confidentiality Agreement, which is filed as an exhibit to Schedule 14D-1
and incorporated herein by reference.
On February 22, 1998, the Company and Parent entered into the
Confidentiality Agreement providing for the non-disclosure of confidential
information to be provided by the Company to Parent and by Parent to the
Company. The Confidentiality Agreement provided that if (1) Parent was afforded
a reasonable opportunity to complete a reasonable due diligence investigation of
the Company in connection with Parent making a proposal at or before 9:00 a.m.
Eastern Standard Time March 3, 1998 (an "Initial Proposal") respecting a
possible negotiated transaction; and (2) following such investigation, Parent
had a reasonable opportunity to formulate and make an Initial Proposal to the
Company respecting a possible negotiated transaction, then for a period of six
months from the date of the Confidentiality
31
Agreement, without the prior written consent of the Company's current Board of
Directors or replacements designated by members of the Company's current Board
of Directors, neither Parent nor any of its directors, officers, employees,
partners, affiliates, agents, advisors or representatives will in any manner,
directly or indirectly, (a) effect or seek, offer or propose to effect, or cause
or participate in or in any way assist or act as advisor to any other person to
effect or seek, offer or propose to effect or participate in, (i) any
acquisition of any securities (or beneficial ownership thereof) or assets of the
Company or any of its subsidiaries; (ii) any tender or exchange offer or merger
or other business combination involving the Company or any of its subsidiaries;
(iii) any recapitalization, restructuring, liquidation, dissolution or other
extraordinary transaction with respect to the Company or any of its
subsidiaries; or (iv) any "solicitation" of "proxies" (as such terms are used in
the proxy rules of the Commission) or consents to vote any voting securities of
the Company, (b) otherwise act, alone or in concert with others, to seek to
control or influence the management, Board of Directors or policies of the
Company or (c) enter into any discussions or arrangements with any third party
with respect to any of the foregoing.
11. SOURCE AND AMOUNT OF FUNDS
The total amount of funds required by Purchaser and Parent to consummate the
Offer and the Acquisition and to pay related fees and expenses is estimated to
be approximately U.S.$237,000,000. Purchaser will obtain all funds required by
it from Parent. Parent will cause the required funds to be made available to
Purchaser and Parent expects to obtain all required funds from borrowings at
market interest rates. Such borrowings may be repaid by Parent from time to
time, in whole or in part, from internally generated funds or from the proceeds
of other borrowings.
12. CERTAIN EFFECTS OF THE OFFER
Following the consummation of the Offer, Purchaser will own at least a
majority of the outstanding Shares of the Company.
COMPULSORY ACQUISITION
If, within four months after the date hereof, the Offer has been accepted by
holders of not less than 90% of the Shares outstanding, other than Shares held
on the date hereof by, or by a nominee for, Parent, Purchaser or their
affiliates (as defined in the BCCA), Purchaser will, to the extent possible,
acquire the remainder of the Shares from those holders who have not accepted the
Offer on the same terms as Shares acquired under the Offer, pursuant to the
provisions of section 255 of the BCCA. If Purchaser exercises the foregoing
statutory right, Purchaser will, in accordance with section 255 of the BCCA,
give written notice (the "Notice") of such intention within five months after
the making of the Offer to each holder of Shares who did not accept the Offer (a
"Dissenting Offeree"). Upon the giving of Notice, Purchaser will be entitled and
bound to acquire the Shares held by the dissenting offerees at the same price
and on the same terms as offered in the Offer, unless the Supreme Court of
British Columbia (the "Court"), on application made by a Dissenting Offeree
within two months from the date of the giving of the Notice, orders otherwise.
On such application by a Dissenting Offeree to whom Notice was given, the Court
may fix the price and terms of payment for the Shares of the Dissenting Offeree
and make such consequential orders and give directions as it considers
appropriate.
Where Notice has been given by Purchaser and the Court has not, on an
application made by a Dissenting Offeree to whom Notice was given, ordered
otherwise, Purchaser shall, on the expiration of two months from the date on
which Notice was given, or if an application to the Court by a Dissenting
Offeree to whom Notice was given is then pending, then after that application
has been disposed of, send a copy of the Notice to the Company and pay or
transfer to the Company the amount representing the price payable by Purchaser
for the Shares which Purchaser is entitled to acquire, and the Company will
thereupon register Purchaser as a shareholder with respect to such Shares.
Any sum received by the Company in the manner set out above shall be paid
into a separate bank account and shall be held by the Company, or a trustee
approved by the Court, in trust for the persons entitled thereto.
32
Subsections 255(9) and (10) of the BCCA provide, in effect, that if
Purchaser is entitled to deliver the Notice and has chosen to do so, dissenting
offerees may, by following the procedures specified therein, require Purchaser
to purchase their Shares at the same price and on the same terms as offered in
the Offer.
THE FOREGOING IS A SUMMARY ONLY. SEE SECTION 255 OF THE BCCA FOR THE FULL
TEXT OF THE RELEVANT STATUTORY PROVISIONS. SECTION 255 OF THE BCCA IS COMPLEX
AND MAY REQUIRE STRICT ADHERENCE TO NOTICE AND TIMING PROVISIONS, FAILING WHICH
SUCH RIGHTS MAY BE LOST OR ALTERED. SHAREHOLDERS WHO WISH TO BE BETTER INFORMED
ABOUT THOSE PROVISIONS OF THE BCCA SHOULD CONSULT THEIR LEGAL ADVISERS.
AMALGAMATION
If the Purchaser takes up and pays for Shares validly deposited under the
Offer and a Compulsory Acquisition is not possible at law, Purchaser will
attempt to effect the Amalgamation for the purposes of enabling Purchaser to
acquire all of the Shares not purchased under the Offer at the Offer Price.
Subject to any required court approval, if Purchaser acquires Shares pursuant to
the Offer which constitute not less than 75% of all of the issued and
outstanding Shares, Purchaser will have sufficient Shares to effect the
Amalgamation.
The Amalgamation would result in shareholders having the right to dissent in
respect thereof and demand payment of the fair value of their Shares. The
exercise of such right of dissent, if certain procedures are complied with by
the holder, could lead to a judicial determination of fair value required to be
paid to such dissenting shareholder for its Shares. The fair value so determined
could be more or less than the amount paid per Share pursuant to such
transaction or pursuant to the Offer.
Policy 9.1 of the Ontario Securities Commission ("OSC") and Policy Q-27 of
the Commission des Valeurs Mobiliers du Quebec ("CVMQ") may deem certain types
of subsequent acquisition transactions to be "going private transactions" if
such subsequent acquisition transaction would result in the interest of a holder
of Shares (the "Affected Securities") being terminated without the consent of
the holder and without the substitution therefor of an interest of equivalent
value in a participating security of the Company, a successor to the business of
the Company or a person who controls the Company or a person who controls a
successor to the business of the Company. The Amalgamation would be a going
private transaction.
Policy 9.1 and Policy Q-27 provide that, unless exempted, a corporation
proposing to carry out a going private transaction is required to prepare a
valuation of the Affected Securities (and any non-cash consideration being
offered therefor) and provide to the holders of the Affected Securities a
summary of such valuation. In connection therewith, Purchaser will be exempt
from the valuation requirements by virtue of the fact that the Offer Price was
arrived at through an arms-length transaction with the Company, and the Major
Shareholders. As of the date of this Offer to Purchase, the Major Shareholders
collectively held Shares representing approximately 33.9% of the Shares
outstanding as of March 12, 1998 and the Other Shareholders held Shares
representing approximately 11.5% of the Shares outstanding as of March 12, 1998.
Purchaser believes that no intervening event has occurred between the date of
that transaction and the date of this Offer to Purchase which could reasonably
be expected to increase the value of the Shares.
Policy 9.1 and Policy Q-27 would also require that, in addition to any other
required security holder approval, in order to complete the approval of a
majority of the votes cast by "minority" shareholders of the Affected Securities
(the "Minority Approval") must be obtained. In relation to the Offer and any
subsequent going private transaction, the "minority" shareholders would be,
absent exemptions or discretionary relief from the OSC and CVMQ, all holders of
Shares, other than (i) Purchaser, its directors and senior officers or any
associate or affiliate of Purchaser or its directors or senior officers or (ii)
any person or company acting jointly or in concert Purchaser or any of its
directors or senior officers in connection with the Offer or any subsequent
going private transaction. However, Policy 9.1 and Policy Q-27 provide that,
except as described above. Purchaser may treat Shares acquired pursuant to the
Offer as "minority" shares and to vote them, or to consider them voted, in favor
of such going private transaction if the consideration per security in the going
private transaction was disclosed at the time of the Offer. Under the
Acquisition Agreement, the consideration for each Share in the Amalgamation must
33
be the Offer Price. Purchaser believes that the Shares acquired by Purchaser
pursuant to the Offer, to the extent permitted by applicable law, will be
counted as part of any minority approval required in connection with the
Amalgamation. If the Minimum Condition is satisfied, the Minority Approval would
be assured.
Promptly upon the purchase by Purchaser of Shares pursuant to the Offer and
from time to time thereafter, Purchaser will be entitled to designate a number
of directors on the Company's Board of Directors equal to the product of (i) the
total number of directors on the Company's Board of Directors and (ii)
Purchaser's percentage ownership of the outstanding Shares of the Company. The
Company will either increase the size of the Company's Board of Directors or
secure the resignation of the necessary number of directors to enable
Purchaser's designees to be elected to the Company's Board of Directors, and
will cause such designees to be elected to the Company's Board of Directors;
provided, however, that at all times prior to the Completion of the Acquisition
there will be at least two Continuing Directors. It is expected that C. Robert
Cusick and F. Michael P. Warren will be the Continuing Directors.
Following the election or appointment of Purchaser's designees, any
amendment of the Acquisition Agreement or the Articles of Association or the
Memorandum of Association, any termination of the Acquisition Agreement by the
Company, and any extension by the Company of the time for performance of
obligations or the waiver of any rights under the Acquisition Agreement will
require the concurrence of at least fifty percent of the Continuing Directors.
POSSIBLE EFFECTS OF THE OFFER ON THE MARKET FOR THE SHARES. The purchase of
Shares pursuant to the Offer will reduce the number of Shares that might
otherwise trade publicly and could adversely affect the liquidity and market
value of the remaining Shares held by the public. The purchase of Shares
pursuant to the Offer can also be expected to reduce the number of holders of
Shares. Purchaser cannot predict whether the reduction in the number of Shares
that might otherwise trade publicly could adversely affect the liquidity and
market value of the remaining Shares held by the public. The purchase of Shares
pursuant to the Offer can also be expected to reduce the number of holders of
Shares. Purchaser cannot predict whether the reduction in the number of Shares
that might otherwise trade publicly would have an adverse or beneficial effect
on the market price for or marketability of the Shares or whether it would cause
future market prices to be greater or less than the Offer Price therefor.
STOCK QUOTATION. Depending upon the number of Shares purchased pursuant to
the Offer, the Shares may no longer meet the listing requirements for the Nasdaq
NMS, which require that an issuer have at least 200,000 publicly held shares,
held by at least 400 shareholders or 300 shareholders of round lots, with a
market value of at least U.S.$1,000,000, and have net tangible assets of at
least U.S.$1,000,000, U.S.$2,000,000 or U.S.$4,000,000, depending on
profitability levels during the issuer's four most recent fiscal years. If these
standards are not met, the Shares might nevertheless continue to be publicly
quoted in an over-the-counter market but if the number of holders of the Shares
were to fall below 300, or if the number of publicly held Shares were to fall
below 100,000 or there were not at least two registered and active market makers
for the Shares, the NASD's rules provide that the Shares would no longer be
"qualified" for NASD reporting and the NASD would cease to provide any
quotations. Shares held directly or indirectly by directors, officers or
beneficial owners of more than 10% of the Shares are not considered as being
publicly held for this purpose. According to the Form 10-K, as of March 5, 1998,
there were approximately 1,799 holders of Shares and there were 16,742,372
Shares outstanding. If, as a result of the purchase of Shares pursuant to the
Offer or otherwise, the Shares no longer meet the listing requirements for
Nasdaq NMS or for any other over-the-counter market, the market for Shares could
be adversely affected.
In the event that the Shares no longer meet the requirements of the NASD for
continued inclusion in any tier of the Nasdaq, it is possible that the Shares
would continue to trade in an over-the-counter market and that price quotations
would be reported by other sources. The extent of the public market for the
Shares and the availability of such quotations would, however, depend upon the
number of holders of Shares remaining at such time, the interests in maintaining
a market in Shares on the part of securities firms, the possible termination of
registration of the Shares under the Exchange Act, as described below, and other
factors.
34
EXCHANGE ACT REGISTRATION. The Shares are currently registered under the
Exchange Act. The purchase of the Shares pursuant to the Offer may result in the
Shares becoming eligible for deregistration under the Exchange Act. Registration
of the Shares may be terminated upon application by the Company to the
Commission if the Shares are not listed on a "national securities exchange" and
there are fewer than 300 record holders of Shares. Termination of registration
of the Shares under the Exchange Act would substantially reduce the information
required to be furnished by the Company to its stockholders and the Commission
and would make certain provisions of the Exchange Act, such as the short-swing
profit recovery provisions of Section 16(b) and the requirements of furnishing a
proxy statement in connection with stockholders' meetings pursuant to Section
14(a) or 14(c) and the related requirement of an annual report, no longer
applicable to the Company. If the Shares are no longer registered under the
Exchange Act, the requirements of Rule 13e-3 under the Exchange Act with respect
to "going private" transactions would no longer be applicable to the Company.
Furthermore, the ability of "affiliates" of the Company and persons holding
"restricted securities" of the Company to dispose of such securities pursuant to
Rule 144 promulgated under the Securities Act of 1933, as amended, may be
impaired or, with respect to certain persons, eliminated. If registration of the
Shares under the Exchange Act were terminated, the Shares would no longer be
"margin securities" or eligible for stock exchange listing or NASD reporting.
Purchaser believes that the purchase of the Shares pursuant to the Offer may
result in the Shares becoming eligible for deregistration under the Exchange
Act, and it would be the intention of Purchaser to cause the Company to make an
application for termination of registration of the Shares as soon as possible
after successful completion of the Offer if the Shares are then eligible for
such termination.
If registration of the Shares is not terminated prior to either the
Compulsory Acquisition or the Amalgamation, then the registration of the Shares
under the Exchange Act and the quotation of the Shares on the Nasdaq NMS will be
terminated following the consummation of either the Compulsory Acquisition or
the Amalgamation.
MARGIN REGULATIONS. The Shares are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which have the effect, among other things, of allowing
brokers to extend credit on the collateral of such Shares for the purpose of
buying, carrying or trading in securities ("Purpose Loans"). Depending upon
factors such as the number of record holders of the Shares and the number and
market value of publicly held Shares, following the purchase of Shares pursuant
to the Offer, the Shares might no longer constitute "margin securities" for
purposes of the Federal Reserve Board's margin regulations and, therefore, could
no longer be used as collateral for Purpose Loans made by brokers. In addition,
if registration of the Shares under the Exchange Act were terminated, the Shares
would no longer constitute "margin securities."
13. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Offer, the obligation of
Purchaser to accept for payment or pay for any Shares tendered pursuant to the
Offer shall be subject to (the following being referred to as the "Offer
Conditions") (i) the Minimum Condition, (ii) the expiration or termination of
any applicable waiting period under the HSR Act, the Canadian Competition Act,
the Investment Canada Act or any laws, regulations relating to the regulation of
monopolies or competition in Germany or any applicable requirements of the
United Kingdom Fair Trading Act , (iii) obtaining or satisfying, on terms
satisfactory to Parent in its reasonable discretion, of any other material
applicable approval, permit, authorization, consent or waiting period of any
domestic, foreign or supranational governmental, administrative or regulatory
agency located or having jurisdiction within the United States or any other
country or economic region in which the Company or any of its subsidiaries or
Parent or any of its subsidiaries, directly or indirectly, has material assets
or operations; PROVIDED, that prior to August 31, 1998, Purchaser shall not
terminate the Offer by reason of the nonsatisfaction of any of the conditions
set forth in clauses (ii) or (iii) above or in paragraphs (a) or (b) below if
such nonsatisfaction is curable and shall
35
extend the Offer (it being understood that this proviso shall not prohibit
Purchaser from terminating the Offer or failing to extend the Offer by reason of
the nonsatisfaction of any other condition of the Offer), and (iv) to the
satisfaction or waiver of the following conditions:
(a) NO PROHIBITION. There shall not have been any action or
proceeding brought by any governmental authority before any court, or any
order or preliminary or permanent injunction entered in any action or
proceeding before any court or governmental, administrative or regulatory
authority or any statute, rule, regulation, legislation, interpretation
judgment or order proposed or sought, enacted, entered, enforced,
promulgated, amended, issued or deemed applicable to the Company or any
subsidiary or affiliate of Purchaser or the Company or the Offer, the
Completion of the Acquisition or the transactions contemplated by the
Acquisition Agreement, by any legislative body, court, government or
governmental, administrative or regulatory authority which could
reasonably be expected to have the effect of: (i) making illegal or
otherwise restraining or prohibiting the making of the Offer, the
acceptance for payment of, payment for, or ownership of, some of or all
the Shares by Parent or Purchaser, the consummation of any of the
transactions contemplated by the Acquisition Agreement or materially
delaying the Completion of the Acquisition; (ii) prohibiting or
materially limiting the ownership or operation by the Company or any of
its subsidiaries or by Parent or any of its subsidiaries, of all or any
material portion of the business or assets of the Company or any of its
subsidiaries or Parent or any of its subsidiaries, or compelling
Purchaser, Parent or any of Parent's subsidiaries to dispose of or hold
separate all or any material portion of the business or assets of the
Company or any of its subsidiaries or Parent or any of its subsidiaries,
as a result of the transactions contemplated by the Acquisition
Agreement; (iii) imposing or confirming material limitations on the
ability of Purchaser, Parent or any of Parent's subsidiaries effectively
to acquire or hold or to exercise full rights of ownership of Shares,
including, without limitation, the right to vote any Shares on all
matters properly presented to the shareholders of the Company, including,
without limitation, the adoption and approval of the Acquisition
Agreement and the Completion of the Acquisition or the right to vote any
shares of capital stock of any subsidiary of the Company; or (iv)
requiring divestiture by Parent or Purchaser, directly or indirectly, of
any Shares.
(b) OUTSIDE EVENTS. There shall not have occurred (i) any general
suspension of trading in, or limitation on prices for, securities on any
securities exchange or in the over-the-counter market in the United
States (ii) the declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States (whether or not
mandatory) or (iii) any limitation (whether or not mandatory) by any
United States governmental authority or agency on the extension of credit
by banks or other financial institutions or (iv) in the case of any of
the situations described in clauses (i) through (iii) inclusive, existing
as of the date of the Acquisition Agreement or at the date hereof, a
material acceleration or worsening thereof.
(c) AWARENESS. There shall not have occurred or be occurring, or
Purchaser shall not have become aware of any event or condition that
would reasonably be expected to result in, a material adverse effect.
(d) PERFORMANCE. The Company shall have performed in all material
respects its covenants and agreements under the Acquisition Agreement.
(e) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the Company set forth in the Acquisition Agreement that are
qualified as to materiality shall be true and correct as of the Effective
Time or any of the representations and warranties of the Company set
forth in the Acquisition Agreement that are not so qualified shall be
true and correct in all material respects, in each case if such
representations and warranties were made at the time of such
determination (or, in the case of any representation and warranty made as
of
36
a specified date, as of such date and if curable shall not have failed to
cure such failure to be true and correct within ten business days of
receipt of notice of such failure to be true and correct.
(f) NO TERMINATION. The Acquisition Agreement shall not have been
terminated in accordance with its terms.
(g) APPROVAL. The Company's Board of Directors shall not have
withdrawn or modified in a manner adverse to Purchaser its approval or
recommendation of the Offer, the Acquisition Agreement or the
Consummation of the Acquisition or shall not have recommended, or the
Company shall not have entered into an agreement providing for, a
Superior Proposal, or the Company's Board of Directors shall not have
resolved to do any of the foregoing.
(h) RIGHTS PLAN. The Company shall not have failed to adopt the
Rights Plan Amendments and Determinations and shall not amend or modify
its Rights Plan in a manner that would in any way nullify or conflict
with the Rights Plan Amendments and Determinations, and shall not adopt
any new shareholder rights plan or agreement or similar agreement, plan
or measure that would nullify or conflict with the Rights Plan Amendments
and Determinations or that would have an adverse effect on Parent,
Purchaser or any of their subsidiaries if Parent, Purchaser or any of
their subsidiaries purchase or acquire, or propose to purchase or
acquire, any securities of the Company or enter into any agreement
requiring or permitting the purchase or acquisition of any securities of
the Company.
Purchaser shall not be required to accept for payment or pay for any Shares
tendered pursuant to the Offer if any of the above conditions occurs, which, in
the reasonable judgment of Purchaser in any such case, and regardless of the
circumstances (including any action or omission by Purchaser) giving rise to any
such condition makes it inadvisable to proceed with such acceptance for payment
or payments for Shares.
The foregoing conditions are for the sole benefit of Purchaser and may be
asserted by Purchaser regardless of the circumstances giving rise to any such
condition or may be waived by Purchaser in whole or in part at any time or from
time to time in its sole discretion. The failure by Purchaser at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right, the waiver of any such right with respect to particular facts or
circumstances shall not be deemed a waiver with respect to any other facts or
circumstances, and each such right shall be deemed an ongoing right that may be
asserted at any time or from time to time.
14. DIVIDENDS AND DISTRIBUTIONS
If the Company should (a) split, combine or otherwise change the Shares or
its capitalization, (b) acquire currently outstanding Shares or otherwise cause
a reduction in the number of outstanding Shares or (c) issue or sell additional
Shares, shares of any other class of capital stock, other voting securities or
any securities convertible into, or rights, warrants or options, conditional or
otherwise, to acquire, any of the foregoing, then subject to the provisions of
Section 1 above, Purchaser, in its sole discretion, may make such adjustments as
it deems appropriate in the Offer Price and other terms of the Offer, including,
without limitation, the number or type of securities offered to be purchased.
If the Company should declare or pay any cash dividend on the Shares or make
other distributions on the Shares or issue with respect to the Shares, any
additional shares, shares of any other class of capital stock, other voting
securities or any securities convertible into, or rights, warrants or options,
conditional or otherwise, to acquire, any of the foregoing, payable or
distributable to shareholders of record on a date prior to the transfer of the
Shares purchased pursuant to the Offer to Purchaser or its nominee or transferee
on the Company's share transfer records, then, subject to the provisions of
Section 1 above, (a) the Offer Price may, in the sole discretion of Purchaser,
be reduced by the amount of
37
any such cash dividend or cash distribution and (b) the whole of any such
noncash dividend, distribution or issuance to be received by the tendering
shareholders will (i) be received and held by the tendering shareholders for the
account of Purchaser and will be required to be promptly remitted and
transferred by each tendering shareholder to the Depositary for the account of
Purchaser, accompanied by appropriate documentation of transfer, or (ii) at the
direction of Purchaser, be exercised for the benefit of Purchaser, in which case
the proceeds of such exercise will promptly be remitted to Purchaser. Pending
such remittance and subject to applicable law, Purchaser will be entitled to all
rights and privileges as owner of any such noncash dividend, distribution,
issuance or proceeds and may withhold the entire Offer Price or deduct from the
Offer Price the amount or value thereof, as determined by Purchaser in its sole
discretion.
15. CERTAIN LEGAL MATTERS; REGULATORY APPROVALS
GENERAL
Except as described below, Purchaser is not aware of any governmental
license or regulatory permit that appears to be material to the business of the
Company and its subsidiaries, taken as a whole, that might be adversely affected
by Purchaser's acquisition of the Company's Shares as contemplated herein or of
any approval or other action by any governmental, administrative or regulatory
authority or agency, domestic or foreign, that would be required for the
acquisition or ownership of Shares by Purchaser as contemplated herein. Should
any such approval or other action be required, Purchaser and Parent currently
contemplate that such approval or other action will be sought. Except as
otherwise expressly described in this Section 15, Purchaser does not presently
intend to delay the acceptance for payment of or payment for Shares tendered
pursuant to the Offer pending the outcome of any such matter. Purchaser is
unable to predict whether it may determine that it is required to delay the
acceptance for payment of or payment for Shares tendered pursuant to the Offer
pending the outcome of any such matter. There can be no assurance that any such
approval or other action, if needed, would be obtained or would be obtained
without substantial conditions or that the failure to obtain any such approval
or other action might not result in consequences adverse to the Company's
business or that certain parts of the Company's business might not have to be
disposed of, any of which could cause Purchaser to decline to accept for payment
or pay for any Shares tendered. See Section 13 for certain conditions to the
Offer.
ANTITRUST
Under the HSR Act and the rules that have been promulgated thereunder by the
Federal Trade Commission (the "FTC"), certain acquisition transactions may not
be consummated unless certain information has been furnished to the Antitrust
Division of the Department of Justice (the "Antitrust Division") and the FTC and
certain waiting period requirements have been satisfied. The purchase of Shares
of the Company by Purchaser pursuant to the Offer is subject to such
requirements.
Under the provisions of the HSR Act applicable to the Offer, the purchase of
Shares under the Offer may be consummated following the expiration of a 15
calendar day waiting period following the filing by Parent of a Notification and
Report Form with respect to the Offer, unless Parent receives a request for
additional information or documentary material from the Antitrust Division or
the FTC or unless early termination of the waiting period is granted. Parent
expects that such filing will be made on or about March 23, 1998 and such
waiting period will expire at 11:59 p.m., New York City time, on or about April
7, 1998. If, within their initial 15 calendar day waiting period, either the
Antitrust Division or the FTC requests additional information or documentary
material from Parent concerning the Offer, the waiting period will be extended
and would expire at 11:59 p.m., New York City time, on the tenth calendar day
after the date of substantial compliance by Parent with such request. Only one
extension of the waiting period pursuant to a request for additional information
is authorized by the HSR Act. Thereafter, such waiting period may be extended
only by court order or with the consent of Parent. In practice, complying with a
38
request for additional information or documentary material can take a
significant amount of time. In addition, if the Antitrust Division or the FTC
raises substantive issues in connection with a proposed transaction, the parties
frequently engage in negotiations with the relevant governmental agency
concerning possible means of addressing those issues and may agree to delay
consummation of the transaction while such negotiations continue.
A request is being made pursuant to the HSR Act for early termination of the
waiting period applicable to the Offer. There can be no assurance, however, that
the 15 calendar day HSR Act waiting period will be terminated early. Shares of
the Company will not be accepted for payment or paid for pursuant to the Offer
until the expiration or earlier termination of the applicable waiting period
under the HSR Act. See Section 13. Any extension of the waiting period will not
give rise to any withdrawal rights not otherwise provided for by applicable law.
See Section 4. If Purchaser's acquisition of Shares is delayed pursuant to a
request by the Antitrust Division or the FTC for additional information or
documentary material pursuant to the HSR Act, the Offer may, but need not, be
extended.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as the acquisition of Shares of the
Company by Purchaser pursuant to the Offer. At any time before or after
Purchaser's purchase of Shares pursuant to the Offer, the Antitrust Division or
the FTC could take such action under the antitrust laws as it deems necessary or
desirable in the public interest, including seeking to enjoin the purchase of
Shares pursuant to the Offer or the consummation of the Acquisition or seeking
the divestiture of Shares acquired by Purchaser or the divestiture of
substantial assets of Parent or its subsidiaries, or the Company or its
subsidiaries. Private parties may also bring legal action under the antitrust
laws under certain circumstances. Purchaser does not believe that the
consummation of the Offer will result in a violation of any applicable antitrust
laws. However, there can be no assurance that a challenge to the Offer on
antitrust grounds will not be made or, if such a challenge is made, of the
result thereof.
FOREIGN REGULATIONS
Under German laws and regulations relating to the regulation of monopolies
and competition, certain acquisition transactions may not be consummated in
Germany unless certain information has been furnished to the German Federal
Cartel Office (the "FCO") and certain waiting period requirements have been
satisfied without issuance by the FCO of an order to refrain. The purchase of
Shares of the Company by Purchaser pursuant to the Offer and the consummation of
the Acquisition may be subject to such requirements with regard to the German
subsidiaries of the Company and Parent. Parent expects to file such information
on or about March 27, 1998; and such waiting period will expire on or about
April 27, 1998 or may be extended by the FCO for a total of four months from the
date of the filing. Parent will request early termination of the waiting period,
although there can be no assurance of the outcome of such request. Purchaser
does not believe that the consummation of the Offer will become subject of an
order to refrain by the FCO under any applicable law or regulation in Germany
relating to the regulation of monopolies or competition. However, there can be
no assurance that a challenge to the Offer on such grounds will not be made or,
if such a challenge is made, of the result thereof.
16. FEES AND EXPENSES
Goldman, Sachs & Co. are acting as Dealer Managers in the United States and
Goldman Sachs Canada are acting as Dealer Managers in Canada in connection with
the Offer and Goldman, Sachs & Co. have provided certain financial advisory
services in connection with the acquisition of the Company. Parent has agreed to
pay Goldman, Sachs & Co. a transaction fee of $2,000,000 when the Offer and the
acquisition are consummated. Parent has also agreed to reimburse the Dealer
Managers for all reasonable out-of-pocket expenses incurred by the Dealer
Managers, including the reasonable fees and expenses of legal counsel, and to
indemnify the Dealer Managers against certain liabilities and expenses in
connection with its engagement, including certain liabilities under the federal
securities laws.
39
Goldman, Sachs & Co. have from time to time, and continues to, render various
investment banking services to Parent and its affiliates, for which it is paid
customary fees.
Purchaser has retained Georgeson & Company Inc. to act as the Information
Agent, and to act as the Depositary, in connection with the Offer. The
Information Agent may contact holders of Shares by mail, telephone, telex,
telegraph and personal interview and may request brokers, dealers and other
nominee shareholders to forward the Offer materials to beneficial owners. Each
of the Information Agent and the Depositary will receive reasonable and
customary compensation for their respective services, will be reimbursed for
certain reasonable out-of-pocket expenses and will be indemnified against
certain liabilities and expenses in connection with the Offer, including certain
liabilities under the federal securities laws.
Except as set forth above, Purchaser will not pay any fees or commissions to
any broker or dealer or other person for soliciting tenders of Shares pursuant
to the Offer. Brokers, dealers, commercial banks and trust companies will, upon
request, be reimbursed by Purchaser for customary mailing and handling expenses
incurred by them in forwarding the Offer materials to their customers.
17. MISCELLANEOUS
The Offer is being made solely by this Offer to Purchase and the related
Letter of Transmittal and is being made to all holders of Shares. The Offer is
not being made to, nor will tenders be accepted from or on behalf of, holders of
Shares of the Company residing in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the securities,
blue sky or other laws of such jurisdiction. However, Purchaser may, in its
discretion, take such action as it may deem necessary to make the Offer in any
jurisdiction and extend the Offer to holders of Shares in such jurisdiction. In
any jurisdiction where the securities, blue sky or other laws require the Offer
to be made by a licensed broker or dealer, the Offer will be deemed to be made
on behalf of Purchaser by the Dealer Managers or one or more registered brokers
or dealers that are licensed under the laws of such jurisdiction.
Parent and Purchaser have filed with the Commission the Schedule 14D-1
pursuant to Rule 14d-3 under the Exchange Act containing certain additional
information with respect to the Offer. Such Schedule and any amendments thereto,
including exhibits, may be examined and copies may be obtained from the
principal office of the Commission in the manner set forth in Section 7 (except
that they will not be available at the regional offices of the Commission).
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF PURCHASER OR PARENT NOT CONTAINED IN THIS OFFER TO
PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
40
APPROVAL AND CERTIFICATE
The contents of the Offer to Purchase have been approved and the sending,
communication or delivery hereof to the shareholders of the Company has been
authorized by the Board of Directors of Purchaser. The foregoing contains no
untrue statement of a material fact and does not omit to state a material fact
that is required to be stated or that is necessary to make a statement not
misleading in light of the circumstances in which it was made. In addition, the
foregoing does not contain any misrepresentation likely to affect the value or
the market price of the Shares.
Dated: March 20, 1998 AAC Acquisition Ltd.,
an indirect wholly owned subsidiary of
Abbott Laboratories
/s/ MILES D. WHITE /s/ THOMAS C. FREYMAN
- ------------------------------ --------------------------------------
Miles D. White Thomas C. Freyman
PRESIDENT TREASURER
On behalf of the Board of Directors
/s/ JEFFREY L. SMITH /s/ PETER J. O'CALLAGHAN
- ------------------------------ --------------------------------------
Jeffrey L. Smith Peter J. O'Callaghan
DIRECTOR DIRECTOR
41
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF PARENT AND PURCHASER
A. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT
The following table sets forth the name, present principal occupation or
employment and material occupation, positions, offices or employment for the
past five years of each director and executive officer of Parent. Unless
otherwise indicated below, the address of each director and officer is 100
Abbott Park Road, Abbott Park, Illinois 60064 and each such person is a citizen
of the United States.
PRESENT PRINCIPAL OCCUPATION
OF EMPLOYMENT AND FIVE-YEAR
NAME AND BUSINESS ADDRESS EMPLOYMENT HISTORY
- -------------------------------------------------------- --------------------------------------------------------
K. Frank Austen, M.D.................................... Dr. Austen has been a director since 1983. He is the
Theodore B. Bayles Professor of Medicine on the
faculty of Harvard Medical School. Dr. Austen also is
a director of Humana Inc.
Duane L. Burnham........................................ Mr. Burnham has served as a director of Parent since
1985, as Chairman of the Board of Parent since 1990
and as Chief Executive Officer of Parent since 1989.
He also is a director of NCR Corporation, Northern
Trust Corporation, Sara Lee Corporation and Evanston
Northwestern Healthcare.
H. Laurance Fuller...................................... Mr. Fuller has been a director since 1988. He has served
as Chairman and Chief Executive Officer of Amoco
Corporation ("Amoco") since 1991. From 1983 to 1995,
Mr. Fuller was the President of Amoco. He also is a
director of The Chase Manhattan Corporation and The
Chase Manhattan Bank, N.A. and Motorola, Inc.
Thomas R. Hodgson....................................... Mr. Hodgson has served as a director of Parent since
1985 and as President and Chief Operating Officer of
Parent since 1990. He joined Parent in 1972 and held
various operational positions with Parent.
David A. Jones.......................................... Mr. Jones has been a director since 1982. He is the
co-founder of Humana Inc. He is the chairman and
retired Chief Executive Officer of Humana Inc. He
served as both its Chairman and Chief Executive
Officer from its organization in 1961 until he retired
as Chief Executive Officer on December 1, 1997.
I-1
PRESENT PRINCIPAL OCCUPATION
OF EMPLOYMENT AND FIVE-YEAR
NAME AND BUSINESS ADDRESS EMPLOYMENT HISTORY
- -------------------------------------------------------- --------------------------------------------------------
The Rt. Hon. Lord Owen CH............................... Lord Owen has been a director since 1996. David Owen is
a British subject. He was a neurologist and Research
Fellow on the Medical Unit of St. Thomas' Hospital,
London, from 1965 through 1968. He served as a Member
of Parliament for Plymouth in the House of Commons
from 1966 until he retired in May 1992. In 1992, he
was created a Life Peer and was made a Member of the
House of Lords. In August 1992, the European Union, as
part of its peace seeking efforts in the Balkans,
appointed him Co-Chairman of the International
Conference on Former Yugoslavia. He stepped down from
that post in June 1995. Lord Owen was Secretary for
Foreign and Commonwealth Affairs from 1977 to 1979 and
Minister of Health from 1974 to 1976. He is currently
a director of Coats Viyella plc and Riceman Investment
Services (BVI) Limited and Executive Chairman of
Middlesex Holdings plc.
Boone Powell, Jr........................................ Mr. Powell has been a director since 1985. He has served
as President and Chief Executive Officer of Baylor
University Medical Center since 1980. Mr. Powell is
also President and Chief Executive Officer of Baylor
Health Care System and a director of Comerica Bank-
Texas, Physician Reliance Network and Healthway
Interactive.
Addison Barry Rand...................................... Mr. Rand has been a director since 1992. He has served
as Executive Vice President of Xerox Corporation since
1992. From 1986 to 1993, he was President of Xerox
Corporation's U.S. Marketing Group. Mr. Rand also
serves as a director of Ameritech Corporation and
Honeywell, Inc.
W. Ann Reynolds, Ph.D................................... Dr. Reynolds has been a director since 1980. In 1977,
Dr. Reynolds was appointed President of the University
of Alabama at Birmingham. She served as Chancellor of
The City University of New York from 1990 to 1997. Dr.
Reynolds also is a director of Humana, Inc., Maytag
Corporation and Owens-Corning Fiberglas Corp.
I-2
PRESENT PRINCIPAL OCCUPATION
OF EMPLOYMENT AND FIVE-YEAR
NAME AND BUSINESS ADDRESS EMPLOYMENT HISTORY
- -------------------------------------------------------- --------------------------------------------------------
William D. Smithburg.................................... Mr. Smithburg has been a director since 1982. He is
Retired Chairman, President and Chief Executive
Officer of The Quaker Oats Company. Mr. Smithburg
retired from Quaker Oats in October 1997. Mr.
Smithburg became President and Chief Executive Officer
at Quaker Oats in 1981, Chairman and Chief Executive
Officer in 1983 and also served as President from
November 1990 to January 1993 and from November 1995
until he retired. He is also a director of Northern
Trust Corporation, Corning Incorporated and Prime
Capital Corp.
John R. Walter.......................................... Mr. Walter has been a director since 1990. Mr. Walter
served as President and Chief Operating Officer of
AT&T Corporation from October 1996 until July 1997.
Prior to that time, Mr. Walter was Chairman and Chief
Executive Officer of R.R. Donnelley & Sons Company, a
printing company. Mr. Walter joined R.R. Donnelley &
Sons Company in 1969 and was named group President in
1985 and Executive Vice President in 1986. He was
elected President in 1987 and Chairman of the Board
and Chief Executive Officer in 1989. Mr. Walter was
elected to the Donnelley board in 1987 and served on
its board until October of 1996. Mr. Walter serves as
a director of Dayton Hudson Corporation, Deere &
Company, and LaSalle Partners.
William L. Weiss........................................ Mr. Weiss has been a director since 1984. He became
Chairman and Chief Executive Officer of Ameritech
Corporation in 1983 and served in that capacity until
January 1994 when he was named Chairman of the Board.
Since May 1994, Mr. Weiss has been Chairman Emeritus
of that Board. Mr. Weiss also is a director of The
Quaker Oats Company, Merrill Lynch & Co., Inc. and
Tenneco Corporation.
I-3
PRESENT PRINCIPAL OCCUPATION
OF EMPLOYMENT AND FIVE-YEAR
NAME AND BUSINESS ADDRESS EMPLOYMENT HISTORY
- -------------------------------------------------------- --------------------------------------------------------
Joy A. Amundson......................................... Ms. Amundson has served as Senior Vice President, Ross
Products of Parent since 1998. From 1995 to 1998, she
served as Senior Vice President, Chemical and
Agricultural Products. From 1994 to 1995, she served
as Vice President, Abbott HealthSystems. From 1993 to
1994, she served as Vice President, Corporate Hospital
Marketing.
Catherine V. Babington.................................. Ms. Babington has served as Vice President, Investor
Relations and Public Affairs of Parent since 1995.
From 1993 to 1995, she served as Director, Corporate
Communications.
Thomas D. Brown......................................... Mr. Brown has served as Senior Vice President,
Diagnostic Operations of Parent since 1998. From 1993
to 1998, he served as Vice President, Diagnostic
Commercial Operations. In 1993, he served as
Divisional Vice President, Diagnostic Commercial
Operations.
Gary R. Byers........................................... Mr. Byers has served as Vice President, Internal Audit
of Parent since 1993. In 1993, he served as Divisional
Vice President, Corporate Auditing.
Paul N. Clark........................................... Mr. Clark has served as Executive Vice President of
Parent since 1998. From 1993 to 1998, he served as
Senior Vice President, Pharmaceutical Operations.
Gary P. Coughlan........................................ Mr. Coughlan has served as Senior Vice President,
Finance and Chief Financial Officer of Parent since
1993.
Jose M. de Lasa......................................... Mr. de Lasa has served as Senior Vice President,
Secretary and General Counsel of Parent since 1994. In
1994, he served as Vice President, Secretary and
Associate General Counsel, Bristol-Myers Squibb
Company. From 1993 to 1994, he served as Vice
President and Associate General Counsel, Bristol-Myers
Squibb Company.
I-4
PRESENT PRINCIPAL OCCUPATION
OF EMPLOYMENT AND FIVE-YEAR
NAME AND BUSINESS ADDRESS EMPLOYMENT HISTORY
- -------------------------------------------------------- --------------------------------------------------------
William G. Dempsey...................................... Mr. Dempsey has served as Senior Vice President,
Chemical and Agricultural Products of Parent since
1998. From 1996 to 1998, he served as Vice President,
Hospital Products Business Sector. From 1995 to 1996,
he served as Divisional Vice President, Hospital
Products Business Sector Sales. From 1993 to 1995, he
served as Divisional Vice President and General
Manager, Abbott Critical Care Systems.
Kenneth W. Farmer....................................... Mr. Farmer has served as Vice President, Management
Information Services and Administration of Parent
since 1993.
Thomas C. Freyman....................................... Mr. Freyman has served as Vice President and Treasurer
of Parent since 1993.
Richard A. Gonzalez..................................... Mr. Gonzalez has served as Senior Vice President,
Hospital Products of Parent since 1998. From 1995 to
1998, he served as Vice President, Abbott
HealthSystems. From 1993 to 1995, he served as
Divisional Vice President and General Manager, U.S.
and Canada Diagnostics.
Arthur J. Higgins....................................... Mr. Higgins has served as Senior Vice President,
Pharmaceutical Operations of Parent since 1998. From
1996 to 1998, he served as Vice President, Pacific,
Asia, and Africa Operations. From 1995 to 1996, he
served as Divisional Vice President, Pacific, Asia,
and Africa Operations. From 1994 to 1995, he served as
Divisional Vice President, Commercial Operations,
Abbott International Division. From 1993 to 1994, he
served as Regional Director, Europe, Africa, and
Middle East. Mr. Higgins is a British subject.
John G. Kringel......................................... Mr. Kringel has served as Senior Vice President of
Parent since 1998. From 1993 to 1998, he served as
Senior Vice President, Hospital Products.
John F. Lussen.......................................... Mr. Lussen has served as Vice President, Taxes of Parent
since 1993.
Thomas M. McNally....................................... Mr. McNally has served as Senior Vice President of
Parent since 1998. From 1993 to 1998, he served as
Senior Vice President, Ross Products. In 1993, he
served as Senior Vice President, Chemical and
Agricultural Products.
I-5
PRESENT PRINCIPAL OCCUPATION
OF EMPLOYMENT AND FIVE-YEAR
NAME AND BUSINESS ADDRESS EMPLOYMENT HISTORY
- -------------------------------------------------------- --------------------------------------------------------
Theodore A. Olson....................................... Mr. Olson has served as Vice President and Controller of
Parent since 1993.
Robert L. Parkinson, Jr................................. Mr. Parkinson has served as Executive Vice President of
Parent since 1998. From 1995 to 1998, he served as
Senior Vice President, International Operations. From
1993 to 1995, he served as Senior Vice President,
Chemical and Agricultural Products. In 1993, he served
as Vice President, European Operations.
Marcia A. Thomas........................................ Ms. Thomas has served as Vice President, Quality
Assurance and Regulatory Affairs of Parent since 1996.
From 1995 to 1996, she served as Divisional Vice
President, Quality Assurance and Regulatory Affairs,
Diagnostics Division. From 1993 to 1995, she served as
Divisional Vice President and General Manager,
Infectious Diseases Diagnostics.
Ellen M. Walvoord....................................... Ms. Walvoord has served as Senior Vice President, Human
Resources of Parent since 1995. From 1993 to 1995, she
served as Vice President, Investor Relations and
Public Affairs.
H. Thomas Watkins....................................... Mr. Watkins has served as Vice President, Abbott
HealthSystems of Parent since 1998. From 1996 to 1998,
he served as Vice President, Diagnostics Operations,
Asia and Pacific. From 1994 to 1996, he served as
Divisional Vice President and General Manager, Asia
and Pacific Diagnostics. In 1993, he served as
Divisional Vice President and Sector General Manager,
Diagnostics Division.
Steven J. Weger, Jr..................................... Mr. Weger has served as Vice President, Corporate
Planning and Development of Parent since 1996. From
1994 to 1996, he served as Divisional Vice President,
Strategic Planning and Technology Assessment,
Diagnostics Division. In 1993, he served as Director,
Strategic Planning, Diagnostics Division.
I-6
PRESENT PRINCIPAL OCCUPATION
OF EMPLOYMENT AND FIVE-YEAR
NAME AND BUSINESS ADDRESS EMPLOYMENT HISTORY
- -------------------------------------------------------- --------------------------------------------------------
Josef Wendler........................................... Mr. Wendler has served as Senior Vice President,
International Operations of Parent since 1998. From
1995 to 1998, he served as Vice President, European
Operations. From 1993 to 1995, he served as Vice
President, Pacific, Asia, and Africa Operations. In
1993, he served as Divisional Vice President, Pacific,
Asia, and Africa. Mr. Wendler is a German citizen.
Miles D. White.......................................... Mr. White has served as Executive Vice President of
Parent since 1998. From 1994 to 1998, he served as
Senior Vice President, Diagnostic Operations. From
1993 to 1994, he served as Vice President, Diagnostic
Systems and Operations. In 1993, he served as
Divisional Vice President and General Manager,
Diagnostic Systems and Operations.
Lance B. Wyatt.......................................... Mr. Wyatt has served as Vice President, Corporate
Engineering of Parent since 1995. From 1993 to 1995,
he served as Divisional Vice President, Quality
Assurance and Regulatory Affairs, Pharmaceutical
Division.
I-7
B. DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER
The following table sets forth the name, business address, present principal
occupation or employment and material occupations, positions, offices or
employment for the past five years of each director and executive officer of
Purchaser. Unless otherwise indicated below, the address of each director and
officer is: 100 Abbott Park Road, Abbott Park, Illinois 60064 and each such
person is a citizen of the United States.
PRESENT PRINCIPAL OCCUPATION
OF EMPLOYMENT AND FIVE-YEAR
NAME AND BUSINESS ADDRESS EMPLOYMENT HISTORY
- -------------------------------------------------------- --------------------------------------------------------
Miles D. White President and Director. Mr. White has served as
Executive Vice President of Parent since 1998. From
1994 to 1998, he served as the Senior Vice President,
Diagnostic Operations. From 1993 to 1994, Mr. White
was Vice President, Diagnostic Systems and Operations
after having served as Divisional Vice President and
General Manager, Diagnostic Systems and Operations in
1993.
Thomas D. Brown Vice President. Mr. Brown was named Senior Vice
President, Diagnostic Operations of Parent in 1998,
after having served as Vice President Diagnostic
Commercial Operations from 1993 to 1998. In 1993, Mr.
Brown served as Divisional Vice President, Diagnostic
Commercial Operations.
Gary P. Coughlan Vice President. Mr. Coughlan has served as Senior Vice
President, Finance and Chief Financial Officer of
Parent since 1993.
John F. Lussen Vice President, Taxes. Mr. Lussen has served as Vice
President, Taxes of Parent since 1993.
Thomas C. Freyman Treasurer. Mr. Freyman has served as Vice President and
Treasurer of Parent since 1993.
Charles M. Brock Secretary. Mr. Brock has served as Divisional Vice
President, Associate General Counsel, International
Legal Operations and Assistant Secretary of Parent
since 1993.
Honey Lynn Goldberg Assistant Secretary. Ms. Goldberg has served as
Divisional Vice President, Domestic Legal Operations
and Assistant Secretary of Parent since 1995. Ms.
Goldberg served as Division Counsel, Domestic Legal
Operations of Parent from 1993 to 1995.
I-8
PRESENT PRINCIPAL OCCUPATION
OF EMPLOYMENT AND FIVE-YEAR
NAME AND BUSINESS ADDRESS EMPLOYMENT HISTORY
- -------------------------------------------------------- --------------------------------------------------------
Jefferey L. Smith Director. Mr. Smith has been the General Manager of the
Diagnostics Division of Abbott Laboratories Limited
since September 1997. Mr. Smith was the Director, Ross
from September 1994 to September 1997. He was also the
Business Unit Manager, Infant Nutrition from November
1991 to September 1994. Mr. Smith is a Canadian
citizen. Mr. Smith's business address is 7115
Millcreek Drive, Second Floor, Mississauga, Ontario
L5N3R3.
Peter J. O'Callaghan Director. Mr. O'Callaghan has been a partner at the law
firm Blake, Cassels & Graydon since July 1995. Mr.
O'Callaghan was also a partner at the law firm Bull
Housser & Tupper from 1989 to 1995. He is a Canadian
citizen and a British Columbia resident. Mr.
O'Callaghan's business address is 595 Burrard Street,
P.O. Box 49314, Vancouver, British Columbia V7X1L3.
I-9
THE DEPOSITARY FOR THE OFFER IS:
THE BANK OF NEW YORK
By Mail: By Facsimile Transmission: By Hand or Overnight Courier:
Tender & Exchange Department (for Eligible Institutions Only) Tender & Exchange
P.O. Box 11248 (212) 815-6213 Department
Church Street Station 101 Barclay Street
New York, New York 10286-1248 Receive & Deliver Window
For Information Telephone: New York, New York 10286
(800) 507-9357
Questions and requests for assistance may be directed to the Information Agent
or the Dealer Managers at their respective addresses and telephone numbers
listed below. Additional copies of this Offer to Purchase, the Letter of
Transmittal and other tender offer materials may be obtained from the
Information Agent as set forth below and will be furnished promptly at
Purchaser's expense. You may also contact the Dealer Managers or your broker,
dealer, commercial bank, trust company or other nominee for assistance
concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
[LOGO]
Wall Street Plaza
New York, New York 10005
Banks and Brokers call collect (212) 440-9800
CALL TOLL FREE: 1-800-223-2064
THE DEALER MANAGERS FOR THE OFFER ARE:
IN THE UNITED STATES: IN CANADA:
GOLDMAN, SACHS & CO. GOLDMAN SACHS CANADA
85 Broad Street 150 King Street West
New York, New York 10004 Toronto, Ontario M5H 109
(212) 902-1000 (collect) (416) 343-8900
(800) 323-5678 (toll free)
LETTER OF TRANSMITTAL
TO TENDER COMMON SHARES
OF
INTERNATIONAL MUREX
TECHNOLOGIES CORPORATION
PURSUANT TO THE OFFER TO PURCHASE DATED MARCH 20, 1998
OF
AAC ACQUISITION LTD.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
ABBOTT LABORATORIES
- -----------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON THURSDAY, APRIL 16, 1998, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
To: The Bank of New York, Depositary
BY MAIL: BY FACSIMILE TRANSMISSION: BY HAND OR OVERNIGHT COURIER:
Tender & Exchange Department (212) 815-6213 Tender & Exchange Department
P.O. Box 11248 (For Eligible Institutions Only) 101 Barclay Street
Church Street Station Receive & Deliver Window
New York, NY 10286-1248 CONFIRM FACSIMILE BY TELEPHONE: New York, NY 10286
(800) 507-9357
(For Confirmation Only)
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL
SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS
COMPLETED.
This Letter of Transmittal is to be used by shareholders if certificates for
Shares (as defined below) are to be forwarded herewith or, unless an Agent's
Message (as defined in the Offer to Purchase) is utilized, if delivery of Shares
is to be made by book-entry transfer to the Depositary's account at The
Depository Trust Company or Philadelphia Depository Trust Company (hereinafter
collectively referred to as the "Book-Entry Transfer Facilities") pursuant to
the procedures set forth under "The Tender Offer--3. Procedure for Tendering
Shares" in the Offer to Purchase dated March 20, 1998. Shareholders who tender
Shares by book-entry transfer are referred to herein as "Book-Entry
Shareholders."
Shareholders who cannot deliver their Shares and all other documents
required hereby to the Depositary on or prior to the Expiration Date (as defined
in the Offer to Purchase) or who cannot complete the procedures for book-entry
transfer on a timely basis, must tender their Shares pursuant to the guaranteed
delivery procedure set forth
under "The Tender Offer--3. Procedure for Tendering Shares" in the Offer to
Purchase. See Instruction 2. Delivery of documents to one of the Book-Entry
Transfer Facilities does not constitute delivery to the Depositary.
----------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
----------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(Please fill in, if blank, exactly as name(s) SHARES TENDERED
appear(s) on Share Certificates) (ATTACH ADDITIONAL LIST IF NECESSARY)
- ------------------------------------------------------------------------------------------------------
TOTAL NUMBER
OF SHARES NUMBER OF
CERTIFICATE REPRESENTED BY SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
- ------------------------------------------------------------------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
TOTAL SHARES
- ------------------------------------------------------------------------------------------------------
* Need not be completed by shareholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares represented by any certificates
delivered to the Depositary are being tendered.
See Instruction 4.
----------------------------------------------
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a member firm of
a registered national securities exchange, a member of the National Association
of Securities Dealers, Inc., a financial institution (including most banks,
trust companies, savings and loan associations and brokerage houses) which is a
participant in the Securities Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Program or the Stock Exchange Medallion
Program and a Canadian chartered bank, a trust company in Canada, a commercial
bank or trust company having an office, branch or agency in the U.S. or a member
firm of the Toronto, Montreal or Vancouver Stock Exchanges (an "Eligible
Institution"). Signatures on this Letter of Transmittal need not be guaranteed
(a) if this Letter of Transmittal is signed by the registered holder(s) of the
Shares (which term, for purposes of this document, shall include any participant
in one of the Book-Entry Transfer Facilities whose name appears on a security
position listing as the owner of Shares) tendered herewith and such holder(s)
have not completed the instruction entitled "Special Delivery Instruments" or
"Special Payment Instructions" on this Letter of Transmittal or (b) if such
Shares are tendered for the account of an Eligible Institution. See Instruction
5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARES. This Letter of Transmittal
is to be used either if certificates are to be forwarded herewith pursuant to
the procedures set forth in "The Tender Offer--3. Procedure for Tendering
Shares" of the Offer to Purchase. Certificates for all physically delivered
Shares, or a confirmation of a book-entry transfer into the Depositary's account
at one of the Book-Entry Transfer Facilities of all Shares delivered
electronically, as well as a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) (or, in the case of a book-entry delivery, an
Agent's Message) and any other documents required by this Letter of Transmittal,
must be received by the Depositary at one of its addresses set forth on the
front page of this Letter of Transmittal by the Expiration Date. Shareholders
who cannot deliver their Shares and all other required documents to the
Depositary by the Expiration Date must tender their Shares pursuant to the
guaranteed delivery procedure set forth in "The Tender Offer--3. Procedure for
Tendering Shares" of the Offer to Purchase. Pursuant to such procedure: (a) such
tender must be made by or through an Eligible Institution, (b) a properly
completed and duly executed Notice of Guaranteed Delivery substantially in the
form provided by AAC Acquisition Ltd. ("Purchaser") must be received by the
Depositary by the Expiration Date, and (c) the certificates for all physically
delivered Shares, or a confirmation of a book-entry transfer into the
Depositary's account at one of the Book-Entry Transfer Facilities of all Shares
delivered electronically, as well as a properly completed and duly executed
Letter of Transmittal (or facsimile thereof) (or, in the case of a book-entry
delivery, an Agent's Message) and any other documents required by this Letter of
Transmittal, must be received by the Depositary within three Nasdaq National
Market System trading days after the date of execution of such Notice of
Guaranteed Delivery, all as provided in "The Tender Offer--3. Procedure for
Tendering Shares." If Shares are forwarded separately to the Depositary, each
must be accompanied by a duly executed Letter of Transmittal (or facsimile
thereof).
The method of delivering Shares, the Letter of Transmittal and all other
required documents including delivery through Book-Entry Transfer Facilities, is
at the option and sole risk of the tendering shareholder and the delivery will
be deemed made only when actually received by the Depositary. If delivery is by
mail, registered mail with return receipt requested, properly issued, is
recommended. In all cases, sufficient time should be allowed to ensure timely
delivery.
No alternative, conditional or contingent tenders will be accepted. By
executing this Letter of Transmittal (or facsimile thereof), the tendering
shareholder waives any right to receive any notice of the acceptance for payment
of the Shares.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto and separately signed on each page thereof in the same
manner as this Letter of Transmittal is signed.
4. PARTIAL TENDERS (NOT APPLICABLE TO SHAREHOLDERS WHO TENDER BY BOOK-ENTRY
TRANSFER). If fewer than all the Shares represented by any certificate
delivered to the Depositary are to be tendered, fill in the number of Shares
which are to be tendered in the box entitled "Number of Shares Tendered." In
such case, a new certificate for the remainder of the Shares represented by the
old certificate will be sent to the person(s) signing this Letter of
Transmittal, unless otherwise provided in the appropriate box on this Letter of
Transmittal, as promptly as practicable following the expiration or termination
of the Offer. All Shares represented by certificates delivered to the Depositary
will be deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written on
the face of the certificates without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered hereby are held of record by two or more
persons, all such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in different names on
different certificates, it will be necessary to complete, sign and submit as
many separate Letters of Transmittal as there are different registrations of
certificates.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, no endorsements of certificates or separate stock powers
are required unless payment of the purchase price is to be made, or Shares not
tendered or not purchased are to be returned, in the name of any person other
than the registered holder(s). Signatures on any such certificates or stock
powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, certificates must be
endorsed or accompanied by appropriate stock powers, in either case, signed
exactly as the name(s) of the registered holder(s) appear(s) on the certificates
for such Shares. Signature(s) on any such certificates or stock powers must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificate or stock power is signed by
a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and proper evidence satisfactory to
Purchaser of the authority of such person so to act must be submitted.
6. STOCK TRANSFER TAXES. Purchaser will pay any stock transfer taxes with
respect to the sale and transfer of any Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price is to be made to, or
Shares not tendered or not purchased are to be returned in the name of, any
person other than the registered holder(s), or if a transfer tax is imposed for
any reason other than the sale or transfer of Shares to Purchaser pursuant to
the Offer, then the amount of any stock transfer taxes (whether imposed on the
registered holder(s), such other person or otherwise) will be deducted from the
purchase price unless satisfactory evidence of the payment of such taxes, or
exemption therefrom, is submitted herewith.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If the check for the purchase
price of any Shares purchased is to be issued, or any Shares not tendered or not
purchased are to be returned, in the name of a person other than the person(s)
signing this Letter of Transmittal or if the check or any certificates for
Shares not tendered or not purchased are to be mailed to someone other than the
person(s) signing this Letter of Transmittal or to the person(s) signing this
Letter of Transmittal at an address other than that shown above, the appropriate
boxes on this Letter of Transmittal should be completed. Shareholders tendering
Shares by book-entry transfer may request that Shares not purchased be credited
to such account at any of the Book-Entry Transfer Facilities as such shareholder
may designate under
"Special Payment Instructions." If no such instructions are given, any such
Shares not purchased will be returned by crediting the account at the Book-Entry
Transfer Facilities designated above.
8. SUBSTITUTE FORM W-9. Under the federal income tax laws, the Depositary
will be required to backup withhold 31% of the amount of any payments made to
certain shareholders pursuant to the Offer. In order to avoid such backup
withholding, each tendering shareholder, and, if applicable, each other payee,
must provide the Depositary with such shareholder's or payee's correct taxpayer
identification number and certify that such shareholder or payee is not subject
to such backup withholding by completing the Substitute Form W-9 set forth
above. In general, if a shareholder or payee is an individual, the taxpayer
identification number is the Social Security number of such individual. If the
Depositary is not provided with the correct taxpayer identification number, the
shareholder or payee may be subject to a U.S. $50 penalty imposed by the U.S.
Internal Revenue Service ("IRS"). Certain shareholders or payees (including,
among others, all corporations and certain foreign individuals) are not subject
to these backup withholding and reporting requirements. In order to satisfy the
Depositary that a foreign individual qualifies as an exempt recipient, such
shareholder or payee must submit a statement, signed under penalties of perjury,
attesting to that individual's exempt status. Such statements can be obtained
from the Depositary. For further information concerning backup withholding and
instructions for completing the Substitute Form W-9 (including how to obtain a
taxpayer identification number if you do not have one and how to complete the
Substitute Form W-9 if Shares are held in more than one name), consult the
enclosed GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9.
Failure to complete the Substitute Form W-9 will not, by itself, cause
Shares to be deemed invalidly tendered, but may require the Depositary to
withhold 31% of the amount of any payments made pursuant to the Offer. Backup
withholding is not an additional U.S. federal income tax. Rather, the U.S.
federal income tax liability of a person subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an overpayment
of taxes, a refund may be obtained provided that the required information is
furnished to the IRS.
NOTE: FAILURE TO COMPLETE AND RETURN THE SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
9. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance or
additional copies of the Offer to Purchase and this Letter of Transmittal may be
obtained from the Information Agent or Dealer Managers at their respective
addresses or telephone numbers set forth below.
10. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate(s)
representing Shares has been lost, destroyed or stolen, the shareholder should
promptly notify the Depositary. Instructions will then be given to what steps
must be taken to obtain a replacement certificate(s). The Letter of Transmittal
and related documents cannot be processed until the procedures for replacing
such missing certificate(s) have been followed.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
- --------------------------------------------------------------------------------
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE DEPOSITARY'S
ACCOUNT AT ONE OF THE BOOK-ENTRY TRANSFER FACILITIES AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
Account No.at
/ / The Depository Trust Company
/ / Philadelphia Depository Trust Company
Transaction Code No.
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY
PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Shareholder(s)
Window Ticket Number (if any)
Date of Execution of Notice of Guaranteed Delivery
Name of Institution which Guaranteed Delivery
If delivery is by book entry transfer:
Name of Tendering Institution
/ / DTC / / PHILADEP (check one) Account No.
Transaction Code No.
- --------------------------------------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby tenders to AAC Acquisition Ltd., a British Columbia
company ("Purchaser") and an indirect wholly owned subsidiary of Abbott
Laboratories, the above-described common shares, without par value (the
"Shares"), of International Murex Technologies Corporation, a British Columbia
company (the "Company"), pursuant to Purchaser's offer to purchase all of the
outstanding Shares at a price of U.S.$13.00 per share, net to the seller in
cash, without interest thereon, upon the terms and subject to the conditions set
forth in the Offer to Purchase dated March 20, 1998, receipt of which is hereby
acknowledged, and in this Letter of Transmittal (which together constitute the
"Offer").
Subject to, and effective upon, acceptance for payment of the Shares
tendered herewith in accordance with the terms of the Offer, including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment, the undersigned hereby sells, assigns and transfers to or upon the
order of Purchaser all right, title and interest in and to all the Shares that
are being tendered hereby or orders the registration of such Shares delivered by
book-entry transfer (and any and all other Shares or other securities issued or
issuable in respect thereof on or after March 20, 1998 and any or all dividends
thereon or distributions with respect thereto (collectively, "Distributions")
and irrevocably appoints the Depositary the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Shares (and all
Distributions), with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest), to (a) deliver
certificates for such Shares (and all such other shares or securities), or
transfer ownership of such Shares (and all Distributions) on the account books
maintained by any of the Book-Entry Transfer Facilities, together, in any such
case, with all accompanying evidences of transfer and authenticity, to or upon
the order of Purchaser upon receipt by the Depositary, as the undersigned's
agent, of the purchase price, (b) present such Shares (and all Distributions)
for transfer on the books of the Company and (c) receive all benefits and
otherwise exercise all rights of beneficial ownership of such Shares (and all
Distributions), all in accordance with the terms of the Offer.
The undersigned hereby irrevocably appoints Miles D. White, Thomas D. Brown
and Jose M. de Lasa and each of them, the attorneys-in-fact and proxies of the
undersigned, each with full power of substitution, to exercise all voting and
other rights of the undersigned in such manner as each such attorney and proxy
or his substitute shall in his sole discretion deem proper, with respect to all
of the Shares tendered hereby which have been accepted for payment by Purchaser
prior to the time of any vote or other action at any meeting of shareholders of
the Company (whether annual or special and whether or not an adjourned meeting),
by written consent or otherwise. This power of attorney and proxy is coupled
with an interest and is irrevocable and is granted in consideration of, and is
effective upon, the acceptance for payment of such Shares by Purchaser in
accordance with the terms of the Offer. Such acceptance for payment shall
revoke, without any further action, any other power of attorney or proxy granted
by the undersigned at any time with respect to such Shares, and no subsequent
power of attorney or proxies will be given or will be executed by the
undersigned (and if given or executed, will not be deemed to be effective). The
undersigned understands that Purchaser reserves the right to require that, in
order for such Shares to be deemed validly tendered, immediately upon
Purchaser's acceptance for payment of such Shares, Purchaser is able to exercise
full voting rights with respect to such Shares and other securities, including
voting at any meeting of shareholders.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Shares and all
Distributions tendered hereby and that when the same are accepted for payment by
Purchaser, Purchaser will acquire good and marketable title and unencumbered
ownership thereto, free and clear of all liens, restrictions, charges, security
interests, and encumbrances and not subject to any adverse claims. The
undersigned will, upon request, execute and deliver any additional documents
deemed by the Depositary or Purchaser to be necessary or desirable to complete
the sale, assignment and transfer of the Shares and all Distributions tendered
hereby. In addition, the undersigned will promptly remit and transfer to the
Depositary for the account of Purchaser any and all Distributions in respect of
the Shares tendered hereby, accompanied by appropriate documentation of transfer
and, pending such remittance or appropriate assurance thereof, Purchaser shall
be entitled to all rights and privileges as owner of any such Distributions, and
may withhold the entire purchase price or deduct from the purchase price of
Shares tendered hereby, the amount or value thereof, as determined by Purchaser
in its sole discretion.
All authority herein conferred or agreed to be 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. Except as stated in the Offer, this tender is
irrevocable.
The undersigned understands that tenders of Shares pursuant to any one of
the procedures described under "The Tender Offer--3. Procedure for Tendering
Shares" in the Offer to Purchase and in the instructions hereto will constitute
a binding agreement between the undersigned and Purchaser upon the terms and
subject to the conditions of the Offer.
The undersigned recognizes that, under certain circumstances set forth in
the Offer to Purchase, Purchaser may terminate or amend the Offer or may not be
required to accept for payment any of the Shares tendered herewith.
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the purchase price and/or return any Shares not tendered or
accepted for payment in the name(s) of the undersigned. Similarly, unless
otherwise indicated under "Special Delivery Instructions," please mail the check
for the purchase price and/or return any Share certificates not tendered or
accepted for payment (and accompanying documents, as appropriate) to the
undersigned at the address shown below the undersigned's signature(s). In the
event that both "Special Payment Instructions" and "Special Delivery
Instructions" are completed, please issue the check for the purchase price
and/or return any Shares not tendered or accepted for payment in the name(s) of,
and deliver said check and/or return certificates to, the person or persons so
indicated. Shareholders tendering Shares by book-entry transfer may request that
any Shares not accepted for payment be returned by crediting such account
maintained at such Book-Entry Transfer Facility as such shareholder may
designate by making an appropriate entry under "Special Payment Instructions."
The undersigned recognizes that Purchaser has no obligation pursuant to the
"Special Payment Instructions" to transfer any Shares from the name of the
registered holder thereof if Purchaser does not accept for payment any of such
Shares.
- ------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares purchased
or stock certificates for Shares not tendered or not purchased are to be
issued in the name of someone other than the undersigned.
Issue check and/or certificates to:
Name _______________________________________________________________________
(PLEASE PRINT)
Address ____________________________________________________________________
(ZIP CODE)
__________________________________________________________________________
(TAXPAYER IDENTIFICATION NO. OR SOCIAL SECURITY NO.)
(COMPLETE SUBSTITUTE FORM W-9)
- ------------------------------------------------------------
- ------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares purchased
or stock certificates for Shares not tendered or not purchased are to be
mailed to someone other than the undersigned or to the undersigned at an
address other than that shown below the undersigned's signature(s).
Mail check and/or certificates to:
Name _______________________________________________________________________
(PLEASE PRINT)
Address ____________________________________________________________________
(ZIP CODE)
- -----------------------------------------------------
- --------------------------------------------------------------------------------
SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 BELOW)
X___________________________________________________________________________
SIGNATURE(S) OF OWNER(S)
X___________________________________________________________________________
Dated ________________________________________________________________, 1998
Name(s) ____________________________________________________________________
(PLEASE PRINT)
__________________________________________________________________________
Capacity (full title) ______________________________________________________
Address ____________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Co. ________________________________________________
Tax Identification or Social Security No. __________________________________
(COMPLETE SUBSTITUTE W-9 ON REVERSE SIDE)
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
stock certificate(s) or on a security position listing or by person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer of a corporation or other person acting
in a fiduciary or representative capacity, please set forth full title and
see Instruction 5.)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Name of Firm _______________________________________________________________
Authorized Signature _______________________________________________________
Name _______________________________________________________________________
Address ____________________________________________________________________
Area Code and Telephone Number _____________________________________________
Dated ________________________________________________________________, 1998
- --------------------------------------------------------------------------------
TO BE COMPLETED BY ALL TENDERING SHAREHOLDERS
(SEE INSTRUCTION 8)
PAYER'S NAME: THE BANK OF NEW YORK
- ---------------------------------------------------------------------------------------------------
SUBSTITUTE Part I--PLEASE PROVIDE YOUR TIN Social Security Number
FORM W-9 IN THE BOX AT THE RIGHT AND OR ------------------------
Department of the Treasury CERTIFY BY SIGNING AND DATING Employer Identification Number
Internal Revenue Service BELOW.
Payer's Request for Taxpayer
Identification Number (TIN)
- ---------------------------------------------------------------------------------------------------
CERTIFICATION.--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct taxpayer identification number (or I am waiting
for a number to be issued to me);
(2) I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b)
I have not been notified by the Internal Revenue Service ("IRS") that I am subject to backup
withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have been notified by the IRS
that you are currently subject to backup withholding because of underreporting or dividends on
your tax return. However, if after being notified by the IRS that you were subject to backup
withholding you received another notification from the IRS that you are no longer subject to
backup withholding, do not cross out such item (2).
SIGNATURE ------------------------------------------------- DATE--------------------, 1996
- ---------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING A TAX
IDENTIFICATION NUMBER.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all reportable payments made to me will be withheld, but that such amounts
will be refunded to me if I then provide a Taxpayer Identification Number within
sixty (60) days.
Signature
- ---------------------------------------------------------------- Date
- -------------------
Facsimile copies of the Letter of Transmittal, properly completed and duly
executed, will be accepted. The Letter of Transmittal, certificates of Shares
and any other required documents should be sent or delivered by each shareholder
of the Company or his broker, dealer, commercial bank, trust company or other
nominee to the Depositary at one of its addresses set forth below:
DEPOSITARY FOR THE OFFER IS:
The Bank of New York
BY MAIL: BY FACSIMILE TRANSMISSION BY HAND OR OVERNIGHT
Tender & Exchange Department (For Eligible Institutions Only) COURIER:
P.O. Box 11248 (212) 815-6213 Tender & Exchange Department
Church Street Station CONFIRM FACSIMILE BY TELEPHONE: 101 Barclay Street
New York, NY 10286-1248 (800) 507-9357 Receive & Deliver Window
(For Confirmation Only) New York, NY 10286
Questions and requests for assistance may be directed to the Information
Agents or the Dealer Managers at their respective addresses and telephone
numbers listed below. Additional copies of this Offer to Purchase, the Letter of
Transmittal and other tender offer materials may be obtained from the
Information Agents as set forth below, and will be furnished promptly at
Purchaser's expense. You may also contact your broker, dealer, commercial bank,
trust company or other nominee for assistance concerning this Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
GEORGESON
& COMPANY INC.
Wall Street Plaza
New York, New York 10005
BANKS AND BROKERS CALL COLLECT (212) 440-9800
ALL OTHERS CALL TOLL FREE (800) 223-2064
THE DEALER MANAGERS FOR THE OFFER ARE:
IN THE UNITED STATES: IN CANADA:
GOLDMAN, SACHS & CO. GOLDMAN SACHS CANADA
85 Broad Street 150 King Street West
New York, New York 10004 Toronto, Ontario M5H 1O9
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING COMMON SHARES
OF
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
AT
U.S.$13.00 NET PER SHARE
BY
AAC ACQUISITION LTD.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
ABBOTT LABORATORIES
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW
YORK CITY TIME, ON THURSDAY, APRIL 16, 1998, UNLESS THE OFFER IS EXTENDED.
March 20, 1998
To Our Clients:
Enclosed for your consideration are the Offer to Purchase dated March 20,
1998 (the "Offer to Purchase") and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, constitute the "Offer") in
connection with the offer by AAC Acquisition Ltd., a British Columbia company
("Purchaser") and an indirect wholly owned subsidiary of Abbott Laboratories, to
purchase all of the outstanding common shares, without par value (the "Shares"),
of International Murex Technologies Corporation, at a price of U.S. $13.00 per
share, net to the seller in cash, without interest thereon, upon the terms and
conditions set forth in the Offer. We are the holder of record of the Shares
held for your account. A tender of such Shares can be made only by us as the
holder of record and pursuant to your instructions. THE LETTER OF TRANSMITTAL IS
FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER
SHARES HELD BY US FOR YOUR ACCOUNT.
THE BOARD OF DIRECTORS OF INTERNATIONAL MUREX TECHNOLOGIES CORPORATION HAS
UNANIMOUSLY APPROVED THE OFFER AND EITHER THE COMPULSORY ACQUISITION OR THE
AMALGAMATION AND RECOMMENDS THAT THOSE SHAREHOLDERS WHO WISH TO RECEIVE CASH FOR
ALL OR A PORTION OF THEIR SHARES ACCEPT THE OFFER AND TENDER THEIR SHARES.
We request instructions as to whether you wish us to tender any or all of
the Shares held by us for your account, upon the terms and subject to the
conditions set forth in the Offer.
PLEASE NOTE CAREFULLY THE FOLLOWING:
1. The tender price is U.S.$13.00 per Share, net to the seller in
cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Offer.
2. The Offer, proration period and withdrawal rights expire at 12:00
Midnight, New York City time, on Thursday, April 16, 1998, unless the
Offer is extended.
3. The Offer is being made for all of the Common Shares.
4. THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE
BEING VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION
OF THE OFFER A NUMBER OF SHARES WHICH CONSTITUTES AT LEAST 75% OF THE
COMPANY'S OUTSTANDING VOTING POWER (ASSUMING THE EXERCISE OF ALL
OUTSTANDING OPTIONS TO PURCHASE SHARES WHICH OPTIONS ARE NOT SUBJECT TO
BINDING AGREEMENTS TO CANCEL) AND (2) THE EXPIRATION OR TERMINATION OF
ANY APPLICABLE
WAITING PERIOD UNDER THE HART-SCOTT-RODINO ACT, THE CANADIAN COMPETITION
ACT, THE INVESTMENT CANADA ACT, ANY APPLICABLE REQUIREMENTS OF ANY LAWS
OR REGULATIONS RELATING TO THE REGULATION OF MONOPOLIES OR COMPETITION IN
GERMANY, OR APPLICABLE REQUIREMENTS OF THE UNITED KINGDOM FAIR TRADING
ACT. SEE "THE TENDER OFFER--13. CERTAIN CONDITIONS OF THE OFFER" IN THE
OFFER TO PURCHASE.
5. Any brokerage fees, commissions or stock transfer taxes
applicable to the sale of the Shares to Purchaser pursuant to the Offer
will be paid by such Purchaser, except as otherwise provided in
Instruction 6 of the Letter of Transmittal.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing, detaching and returning to us the instruction form
set forth below. An envelope to return your instructions to us is enclosed. If
you authorize tender of your Shares, all such Shares will be tendered unless
otherwise specified on the instruction form set forth below.
YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO
SUBMIT A TENDER ON YOUR BEHALF BY THE EXPIRATION OF THE OFFER. THE OFFER,
PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON THURSDAY, APRIL 16, 1998, UNLESS PURCHASER EXTENDS THE OFFER.
The Offer is not being made to, nor will tenders be accepted from or on
behalf of, holders of the Shares in any jurisdiction in which the making of the
Offer or acceptance thereof would not be in compliance with the laws of such
jurisdiction. In those jurisdictions the laws of which require that the Offer be
made by a licensed broker or dealer, the Offer shall be deemed to be made on
behalf of Purchaser by Goldman, Sachs & Co. or one or more registered brokers or
dealers licensed under the laws of such jurisdiction.
INSTRUCTIONS WITH RESPECT TO
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING COMMON SHARES
OF
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase dated March 20, 1998 and the related Letter of Transmittal (which
collectively constitute the "Offer") in connection with the offer by AAC
Acquisition Ltd., a British Columbia company and an indirect wholly owned
subsidiary of Abbott Laboratories, to purchase all of the outstanding common
shares, without par value (the "Shares") of International Murex Technologies
Corporation.
This will instruct you to tender the number of Shares indicated below held
by you for the account of the undersigned, upon the terms and subject to the
conditions set forth in the Offer to Purchase and the related Letter of
Transmittal.
Number(1) of Shares to be Tendered: ------- Common Shares
Account Number: ---------------------------------------------
Dated: ------------------------, 1998
SIGN HERE
Signature(s):
Print Name(s):
Print Address(ses):
Area Code and Telephone No.:
Taxpayer ID No. or Social Security No.:
(1)Unless otherwise indicated, it will be assumed that all Shares held by us for
your account are to be tendered.
GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING COMMON SHARES
OF
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
AT
U.S.$13.00 NET PER SHARE
BY
AAC ACQUISITION LTD.
AN INDIRECT WHOLLY OWNED SUBSIDIARY
OF
ABBOTT LABORATORIES
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON THURSDAY, APRIL 16, 1998, UNLESS THE OFFER IS EXTENDED.
March 20, 1998
To Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees:
We have been appointed by AAC Acquisition Ltd., a British Columbia company
("Purchaser") and an indirect wholly owned subsidiary of Abbott Laboratories, to
act as Dealer Managers in the United States in connection with Purchaser's offer
to purchase all of the outstanding common shares, without par value (the
"Shares"), of International Murex Technologies Corporation, at U.S. $13.00 per
Share, net to the seller in cash, upon the terms and subject to the conditions
set forth in Purchaser's Offer to Purchase dated March 20, 1998 (the "Offer to
Purchase") and the related Letter of Transmittal (which together constitute the
"Offer").
THE OFFER IS SUBJECT TO SEVERAL CONDITIONS CONTAINED IN THE OFFER TO
PURCHASE INCLUDING (1) THERE BEING VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN
PRIOR TO THE EXPIRATION OF THE OFFER A NUMBER OF SHARES WHICH CONSTITUTES AT
LEAST 75% OF THE COMPANY'S OUTSTANDING VOTING POWER (ASSUMING THE EXERCISE OF
ALL OUTSTANDING OPTIONS TO PURCHASE SHARES WHICH OPTIONS ARE NOT SUBJECT TO
BINDING AGREEMENTS TO CANCEL) AND (2) THE EXPIRATION OR TERMINATION OF ANY
APPLICABLE WAITING PERIOD UNDER THE HART-SCOTT-RODINO ACT, THE CANADIAN
COMPETITION ACT, THE INVESTMENT CANADA ACT, ANY APPLICABLE REQUIREMENTS OF ANY
LAWS OR REGULATIONS RELATING TO THE REGULATION OF MONOPOLIES OR COMPETITION IN
GERMANY OR ANY APPLICABLE REQUIREMENTS OF THE UNITED KINGDOM FAIR TRADING ACT.
THE OFFER IS ALSO SUBJECT TO OTHER TERMS AND CONDITIONS CONTAINED IN THE OFFER
TO PURCHASE. SEE "THE TENDER OFFER--13. CERTAIN CONDITIONS OF THE OFFER" IN THE
OFFER TO PURCHASE.
For your information and for forwarding to your clients for whom you hold
Shares registered in your name or in the name of your nominee, we are enclosing
the following documents:
1. Offer to Purchase dated March 20, 1998;
2. Letter of Transmittal to tender Shares for your use and for the
information of your clients, together with GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 providing information
relating to backup federal income tax withholding (facsimile copies of the
Letter of Transmittal may be used to tender Shares);
3. Notice of Guaranteed Delivery to be used to accept the Offer if the
certificates for the Shares being tendered and all other required documents
cannot be delivered to the Depositary by the Expiration Date as defined in
the Offer to Purchase or if procedures for book-entry transfer cannot be
completed by the Expiration Date;
4. A printed form of letter which may be sent to your clients for whose
accounts you hold Shares registered in your name or in the name of your
nominee, with space provided for obtaining such clients' instructions with
regard to the Offer; and
5. A letter to International Murex Technologies Corporation
shareholders from C. Robert Cusick, President and Chief Executive Officer,
and F. Michael P. Warren, Chairman of the Board, of International Murex
Technologies Corporation.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER, PRORATION PERIOD AND
WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT NEW YORK CITY TIME, ON THURSDAY,
APRIL 16, 1998, UNLESS THE OFFER IS EXTENDED.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), Purchaser will accept for payment and pay for the Shares which are
validly tendered prior to the Expiration Date and not theretofore properly
withdrawn when, as and if Purchaser gives oral or written notice to the
Depositary of Purchaser's acceptance of such Shares for payment pursuant to the
Offer. Payment for the Shares purchased pursuant to the Offer will in all cases
be made only after timely receipt by the Depositary of certificates for the
Shares or timely confirmation of a book-entry transfer of such Shares into the
Depositary's account at The Depository Trust Company or Philadelphia Depository
Trust Company, pursuant to the procedures described in "The Tender Offer--3.
Procedure for Tendering Shares" of the Offer to Purchase, a properly completed
and duly executed Letter of Transmittal (or manually signed facsimile thereof)
or an Agent's Message in connection with a book-entry transfer, and all other
documents required by the Letter of Transmittal.
If holders of Shares wish to tender, but it is impracticable for them to
forward their certificates or other required documents on or prior to the
Expiration Date or to comply with the book-entry transfer procedure on a timely
basis, a tender may be effected by following the guaranteed delivery procedures
specified in "The Tender Offer--3. Procedure for Tendering Shares" in the Offer
to Purchase.
Purchaser will not pay any fees or commissions to any broker or dealer or
other person (other than to the Dealer Managers as described in the Offer to
Purchase) for soliciting tenders of the Shares pursuant to the Offer. Purchaser
will, however, upon request, reimburse brokers, dealers, commercial banks and
trust companies for reasonable and necessary costs and expenses incurred by them
in
2
forwarding materials to their customers. Purchaser will pay all stock transfer
taxes applicable to its purchase of Shares pursuant to the Offer, subject to
Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be addressed to,
and additional copies of the enclosed materials may be obtained from, any of the
Information Agent or the undersigned at the addresses and telephone numbers set
forth on the back cover of the Offer to Purchase and the Letter of Transmittal.
Very truly yours,
GOLDMAN, SACHS & CO.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY PERSON AS AN AGENT OF PURCHASER, THE DEALER MANAGERS, THE INFORMATION
AGENT OR THE DEPOSITARY, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY
DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE
OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED
THEREIN.
3
NOTICE OF GUARANTEED DELIVERY
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
TO TENDER COMMON SHARES
OF
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
PURSUANT TO THE OFFER TO PURCHASE DATED MARCH 20, 1998
OF
AAC ACQUISITION LTD.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
ABBOTT LABORATORIES
This Notice of Guaranteed Delivery, or one substantially equivalent to the
attached form, must be used to accept the Offer (as defined below) if (i)
certificates for common shares, without par value (the "Shares"), of
International Murex Technologies Corporation and all other documents required by
the Letter of Transmittal cannot be delivered to the Depositary by the
expiration of the Offer (as defined in the Offer to Purchase) or (ii) the
procedures for delivery of book-entry transfer cannot be completed on a timely
basis. This Notice of Guaranteed Delivery may be delivered by hand or sent by
facsimile transmission or mail to the Depositary. See "The Tender Offer--3.
Procedure for Tendering Shares" in the Offer to Purchase.
THE DEPOSITARY FOR THE OFFER IS:
THE BANK OF NEW YORK
BY MAIL: BY FACSIMILE BY HAND OR OVERNIGHT COURIER:
TRANSMISSION:
Tender & Exchange Department (for Eligible Institutions Tender & Exchange Department
P.O. Box 11248 Only) 101 Barclay Street
Church Street Station (212) 815-6213 Receive & Deliver Window
New York, NY 10286-1248 New York, NY 10286
CONFIRM FACSIMILE BY
TELEPHONE:
(For Confirmation Only)
(800) 507-9357
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO
A NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature of a Letter of Transmittal is required to be
guaranteed by an "Eligible Institution" under the instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box on the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tenders to AAC Acquisition Ltd. ("Purchaser"), upon
the terms and subject to the conditions set forth in the Offer to Purchase dated
March 20, 1998 and the related Letter of Transmittal (which together constitute
the "Offer"), receipt of which is hereby acknowledged, the number (indicated
below) of Shares pursuant to the guaranteed delivery procedure set forth in "The
Tender Offer--3. Procedure for Tendering Shares" of the Offer to Purchase.
Number of Shares being tendered hereby: Shares
Certificate No(s).
(if available):
____________________________________________________________________________
If Shares will be tendered by book-entry transfer:
Name of Tendering Institution ______________________________________________
Account No. _____________________________________________________________ at
/ / The Depository Trust Company
/ / Philadelphia Depository Trust Company
SIGN HERE:
____________________________________________________________________________
(SIGNATURE(S))
__________________________________________________________________________
(NAME(S) OF RECORD HOLDERS)
(PLEASE PRINT)
__________________________________________________________________________
(ADDRESS)
__________________________________________________________________________
(ZIP CODE)
__________________________________________________________________________
(TELEPHONE NO.)
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm which is a member of a registered national
securities exchange or the National Association of Securities Dealers, Inc., or
a commercial bank or trust company having an office, branch or agency in the
United States, hereby (a) represents that the above named person(s) "own(s)" the
Shares tendered hereby within the meaning of Rule 14e-4 under the Securities
Exchange Act of 1934, as amended, (b) represents that such tender complies with
Rule 14e-4 and (c) guarantees to deliver to the Depositary the Shares tendered
hereby, together with a properly completed and duly executed Letter(s) of
Transmittal (or facsimile(s) thereof) or an Agent's Message as defined in the
Offer to Purchase in the case of a book-entry delivery, and any other required
documents, all within three Nasdaq National Market System trading days of the
date hereof.
____________________________________________________________________________
(NAME OF FIRM)
__________________________________________________________________________
(ADDRESS)
__________________________________________________________________________
(ZIP CODE)
__________________________________________________________________________
(TELEPHONE NO.)
Dated: ______________________________________________________________, 1998.
____________________________________________________________________________
(AUTHORIZED SIGNATURE)
__________________________________________________________________________
(NAME)
__________________________________________________________________________
(TITLE)
DO NOT SEND STOCK CERTIFICATES WITH THIS FORM.
YOUR STOCK CERTIFICATES MUST BE SENT WITH THE LETTER OF TRANSMITTAL.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.--Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
FOR THIS TYPE OF ACCOUNT: GIVE THE SOCIAL SECURITY NUMBER OF--
--------------------------------------------------- ------------------------------------------------------
1. An individual's account The individual
2. Two or more individuals (joint account) The actual owner of the account or, if combined funds,
any one of the individuals(1)
3. Husband and wife (joint account) The actual owner of the account or, if joint funds,
either person(1)
4. Custodian account of a minor (Uniform Gift to The minor(2)
Minors Act)
5. Adult and minor (joint account) The adult or, if the minor is the only contributor,
the minor(1)
6. Account in the name of guardian or committee for a The ward, minor, or incompetent person(3)
designated ward, minor, or incompetent person
7. a. The usual revocable savings trust account The grantor-trustee(1)
(grantor is also trustee)
b. So-called trust account that is not a legal or The actual owner(1)
valid trust under State law
8. Sole proprietorship The owner(4)
9. A valid trust, estate, or pension trust Legal entity (Do not furnish the number of the
personal representative or trustee unless the legal
entity itself is not designated in the account
title)(5)
10. Corporate account The corporation
11. Religious, charitable or educational organization The organization
account
12. Partnership account held in the name of the The partnership
business
13. Association, club or other tax-exempt organization The organization
14. A broker or registered nominee The broker or nominee
15. Account with the Department of Agriculture in the The public entity
name of a public entity (such as a state or local
government, school district, or prison) that
receives agricultural program payments
- ------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) You must show your individual name, but you may also enter your business or
"doing business as" name. You may use either your social security number or
your employer identification number.
(5) List first and circle the name of the legal trust, estate or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you do not know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include
the following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a), of the Internal
Revenue Code of 1986, as amended (the "Code"), or an individual retirement
plan.
- The United States or any agency or instrumentality thereof.
- A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
- An international organization or any agency, or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S. or
a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a) of the Code.
- An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1) of the Code.
- An entity registered at all times under the Investment Company Act of
1940.
- A foreign central bank of issue.
PAYMENTS NOT GENERALLY SUBJECT TO BACKUP WITHHOLDING
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
- Payments to nonresident aliens subject to withholding under section 1441
of the Code.
- Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
- Section 404(k) payments made by an ESOP.
Payments of interest not generally subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. Note: A Payee
may be subject to backup withholding if this interest is $600 or more and
is paid in the course of the payer's trade or business and such payee has
not provided its correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt-interest dividends under
section 852) of the Code.
- Payments described in section 6049(b)(5) to nonresident aliens.
- Payments on tax-free covenant bonds under section 1451 of the Code.
- Payments made by certain foreign organizations.
- Mortgage interest paid to you.
EXEMPT PAYEES DESCRIBED ABOVE MUST STILL COMPLETE THE SUBSTITUTE FORM W-9 TO
AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. FILE SUBSTITUTE FORM W-9 WITH THE
PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE
OF THE FORM, AND RETURN IT TO THE PAYER. IF THE PAYMENTS ARE INTEREST,
DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A of the Code.
PRIVACY ACT NOTICE.--Section 6109 of the Code requires most recipients of
dividends, interest, or other payments to give taxpayer identification numbers
to payers who must report the payments to IRS. IRS uses the numbers for
identification purposes. Payers must be given the numbers whether or not
recipients are required to file tax returns. Payers must generally withhold 31%
of taxable interest, dividends, and certain other payments to a payee who does
not furnish a taxpayer identification number to a payer. Certain penalties may
also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. If you fail
to furnish your taxpayer identification number to a payer, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. If you make
a false statement with no reasonable basis that results in no imposition of
backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
(4) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS. If you fail to
include any portion of an includable payment for interest, dividends or
patronage dividends in gross income and such failure is due to negligence, a
penalty of 20% is imposed on any portion of an underpayment attributable to
that failure.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE
EXHIBIT 99(a)(7)
THIS ANNOUNCEMENT IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION OF AN
OFFER TO SELL SHARES. THE OFFER IS MADE SOLELY BY THE OFFER TO PURCHASE DATED
MARCH 20, 1998 AND THE RELATED LETTER OF TRANSMITTAL, AND IS BEING MADE TO
ALL HOLDERS OF SHARES, EXCEPT IN ANY JURISDICTION WHERE THE MAKING OF SUCH
WOULD BE ILLEGAL. PURCHASER IS NOT AWARE OF ANY STATE OR PROVINCE IN WHICH
THE MAKING OF THE OFFER IS PROHIBITED BY ADMINISTRATIVE OR JUDICIAL ACTION
PURSUANT TO A STATE OR PROVINCIAL STATUTE. IF PURCHASER BECOMES AWARE OF ANY
STATE OR PROVINCE WHERE THE MAKING OF THE OFFER IS SO PROHIBITED, PURCHASER
WILL MAKE A GOOD FAITH EFFORT TO COMPLY WITH ANY SUCH STATUTE OR SEEK TO HAVE
SUCH STATUTE DECLARED INAPPLICABLE TO THE OFFER. IF, AFTER SUCH GOOD FAITH
EFFORT, PURCHASER CANNOT COMPLY WITH ANY APPLICABLE STATUTE, THE OFFER WILL
NOT BE MADE TO (NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF) HOLDERS OF
SHARES IN SUCH STATE OR PROVINCE. IN ANY JURISDICTION, THE SECURITIES LAWS
OR BLUE SKY LAWS OF WHICH REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER
OR DEALER, THE OFFER SHALL BE DEEMED TO BE MADE ON BEHALF OF PURCHASER, IF AT
ALL, IF IN THE UNITED STATES, BY GOLDMAN, SACHS & CO. OR, IF IN CANADA, BY
GOLDMAN SACHS CANADA, AS DEALER MANAGERS OR ONE OR MORE REGISTERED BROKERS OR
DEALERS THAT ARE LICENSED UNDER THE LAWS OF, AND REPRESENT THE SHAREHOLDER
RESIDING IN, SUCH JURISDICTION.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING COMMON SHARES
OF
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
AT
U.S.$13.00 NET PER SHARE
BY
AAC ACQUISITION LTD.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
ABBOTT LABORATORIES
AAC Acquisition Ltd., a British Columbia company ("Purchaser"), which is
indirect and wholly owned by Abbott Laboratories, an Illinois corporation
("Parent"), is offering to purchase any and all common shares without par
value (the "Shares"), of International Murex Technologies Corporation, a
British Columbia company (the "Company"), at U.S.$13.00 per Share (the "Offer
Price"), net to the seller in cash, without interest thereon, upon the terms
and subject to the conditions set forth in the Offer to Purchase dated March
20, 1998 (the "Offer to Purchase") and in the related Letter of Transmittal
(which, together, constitute the "Offer").
- ----------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON THURSDAY, APRIL 16, 1998 (THE "EXPIRATION DATE"), UNLESS THE
OFFER IS EXTENDED.
- ----------------------------------------------------------------------------
The Offer is conditioned, among other things, upon satisfaction, in
Purchaser's sole discretion, of the following conditions: (1) there being
validly tendered and not properly withdrawn prior to the Expiration Date of
the Offer a number of Shares of the Company which constitutes at least 75% of
the Company's outstanding voting power (assuming the exercise of all
outstanding options to purchase Shares which options are not subject to
binding agreements to cancel) (the "Minimum Condition") and (2) the
expiration or termination of any applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), the Canadian Competition Act, the Investment Canada Act, any
applicable requirements of any laws or regulations relating to the regulation
of monopolies or competition in Germany or any applicable requirements of the
United Kingdom Fair Trading Act. Certain other conditions to the Offer are
described in "The Tender Offer--13. Certain Conditions of the Offer" in the
Offer to Purchase. The Purchaser estimates that up to approximately
13,875,000 Shares will need to be validly tendered (and not
validly withdrawn) to satisfy the Minimum Condition. Purchaser expressly
reserves the right to waive the Minimum Condition and to purchase any Shares
validly tendered (and not validly withdrawn) pursuant to the Offer, so long
as Purchaser purchases at least a majority of the Shares outstanding
(assuming the exercise of all outstanding options to purchase Shares which
options are not subject to binding agreements to cancel).
The Offer is being made in connection with an Acquisition Agreement (the
"Acquisition Agreement") dated as of March 13, 1998, among the Company,
Purchaser and Parent. Pursuant to the Acquisition Agreement, and on the
terms and subject to the conditions set forth therein, Purchaser and Parent
will offer to purchase all of the outstanding Shares of the Company pursuant
to the Offer. If Purchaser purchases Shares pursuant to the Offer, it intends
to exercise its statutory right, if available, to acquire all of the Shares
not purchased pursuant to the Offer (the "Compulsory Acquisiton"). If the
Compulsory Acquisition is not available to it, Purchaser intends, subject to
certain conditions, to proceed to a transaction involving the amalgamation or
other business combination of Purchaser and the Company (the "Amalgamation").
In the event Purchaser effects the Compulsory Acquisition, holders of Shares
which were not purchased in the Offer will have rights to apply to court and,
in the event Purchaser effects the Amalgamation, a holder of Shares who did
not tender to the Offer will have rights of dissent, all in accordance with
British Columbia law.
THE PURCHASER AND PARENT HAVE BEEN ADVISED THAT THE COMPANY'S BOARD OF
DIRECTORS HAS UNANIMOUSLY DETERMINED THAT EACH OF (1) THE OFFER AND (2)
EITHER THE COMPULSORY ACQUISITION OR THE AMALGAMATION (AS THE CASE MAY BE) IS
FAIR TO AND IN THE BEST INTERESTS OF THE SHAREHOLDERS OF THE COMPANY AND
UNANIMOUSLY HAS APPROVED THE OFFER AND EITHER THE COMPULSORY ACQUISITION OR
THE AMALGAMATION AND RECOMMENDS THAT SHAREHOLDERS OF THE COMPANY ACCEPT THE
OFFER AND TENDER THEIR SHARES. SEE "RECOMMENDATION OF THE COMPANY'S BOARD OF
DIRECTORS" IN THE OFFER TO PURCHASE.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered and not validly
withdrawn, as, if and when Purchaser gives oral or written notice to The Bank
of New York (the "Depositary") of Purchaser's acceptance of such Shares for
payment pursuant to the Offer. In all cases, upon the terms and subject to
the conditions of the Offer, payment for Shares purchased pursuant to the
Offer will be made by deposit of the Offer Price therefor with the
Depositary, which will act as agent for tendering shareholders for the
purpose of receiving payments from Purchaser and transmitting such payments
to validly tendering shareholders. Under no circumstances will interest on
the purchase price for Shares be paid by Purchaser by reason of any delay in
making such payment. In all cases, payment for Shares accepted for payment
pursuant to the Offer will be made only after timely receipt by the
Depositary of (a) certificates for such Shares ("Share Certificates") or
timely confirmation of the book-entry transfer of such Shares into the
Depositary's account at The Depository Trust Company or the Philadelphia
Depository Trust Company (collectively, the "Book-Entry Transfer
Facilities"), pursuant to the procedures set forth in "The Tender
Offer--Section 3. Procedures for Tendering Shares" in the Offer to Purchase,
(b) the Letter of Transmittal (or facsimile thereof) properly completed and
duly executed with any required signature guarantees (or, alternatively, an
Agent's Message as set forth in the Offer to Purchase) and (c) any other
documents required by the Letter of Transmittal.
The term "Expiration Date" means 12:00 Midnight, New York City time, on
Thursday, April 16, 1998, unless and until Purchaser, in its sole discretion,
shall have extended the period of time for which the Offer is open, in which
event the term "Expiration Date" shall mean the latest time and date at which
the Offer, as so extended by the Purchaser, shall expire. Purchaser expressly
reserves the right, in its sole discretion, at any time and from time to
time, to extend the period during which the Offer is open for any reason,
including the occurrence of any of the conditions specified in the Offer to
Purchase, by giving oral or written notice of such extension to the
Depositary, followed as promptly as practicable by public announcement no
later than 9:00 A.M., New York City time, on the next business day after the
previously scheduled Expiration Date. During any such extension, all Shares
previously tendered and not withdrawn will remain subject to the Offer,
subject to the right of tendering shareholders to withdraw such shareholder's
Shares.
Purchaser's acceptance for payment of Shares tendered pursuant to any
one of the procedures described in the Offer to Purchase and in the Letter of
Transmittal will constitute a binding agreement between the tendering
shareholder and Purchaser upon the terms and subject to the conditions of the
Offer. Except as otherwise provided in "The Tender Offer--Section 4.
Withdrawal Rights" in the Offer to Purchase, tenders of Shares made pursuant
to the Offer are irrevocable. Shares tendered pursuant to the Offer may be
withdrawn at any time on or prior to the Expiration Date and, unless
theretofore accepted for payment as provided herein, may also be withdrawn
after May 4, 1998. For a withdrawal to be effective, a written or facsimile
transmission notice of withdrawal must be timely received by the Depositary
at one of its addresses set forth on the back cover of the Offer to Purchase.
Any such notice of withdrawal must specify the name of the person who
tendered the Shares to be withdrawn, the number of shares to be withdrawn and
if Share Certificates have been tendered, the name of the registered holder
of the Shares as set forth in the Share Certificate, if different from that
of the person who tendered such Shares. If Share Certificates have been
delivered or otherwise identified to the Depositary, then prior to the
physical release of such certificates, the tendering shareholder must submit
the serial numbers shown on the particular certificates evidencing the Shares
to be withdrawn and the signature on the notice of withdrawal must be
guaranteed by an Eligible Institution (as defined in the Offer to Purchase),
except in the case of Shares tendered for the account of an Eligible
Institution. If Shares have been tendered pursuant to the procedures for
book-entry transfer as set forth in "The Tender Offer--Section 3. Procedure
for Tendering Shares" in the Offer to Purchase, the notice of withdrawal must
specify the name and number of the account at the appropriate Book-Entry
Transfer Facility to be credited with the withdrawn Shares, in which case a
notice of withdrawal will be effective if a written or facsimile transmission
notice of withdrawal is timely received by the Depositary at one of its
addresses set forth on the back cover of the Offer to Purchase. Withdrawals
of Shares may not be rescinded. Any Shares properly withdrawn will be deemed
not validly tendered for purposes of the Offer, but may be retendered at any
subsequent time prior to the Expiration Date by following any of the
procedures described in "The Tender Offer--Section 3. Procedure for
-2-
Tendering Shares" in the Offer to Purchase. All questions as to the form and
validity (including time of receipt) of any notices of withdrawal will be
determined by Purchaser, in its sole discretion, whose determination will be
final and binding.
The information required to be disclosed by Rule 14d-6(e)(1) of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended, is contained in the Offer to Purchase and is incorporated herein by
reference.
The Company has provided the Company's shareholder list and security
position listings to Purchaser for the purpose of disseminating the Offer
to shareholders. The Offer to Purchase and the related Letter of Transmittal
and, if required, other relevant materials will be mailed to shareholders
whose names appear on the Company's shareholder list and will be furnished
for subsequent transmittal to beneficial owners of Shares, to brokers,
dealers, commercial banks, trust companies and similar persons whose names,
or the names of whose nominees, appear on the shareholder list or, if
applicable, who are listed as participants in a clearing agency's security
listing.
SHAREHOLDERS ARE URGED TO READ THE OFFER TO PURCHASE AND THE RELATED
LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING WHETHER TO TENDER THEIR
SHARES.
Questions and requests for assistance may be directed to the Information
Agent or the applicable Dealer Managers at the addresses and telephone
numbers set forth below. Requests for copies of the Offer to Purchase and the
related Letter of Transmittal and other Offer materials may be directed to
the Information Agent, the applicable Dealer Managers or brokers, dealers,
commercial banks and trust companies and such materials will be furnished
promptly at Purchaser's expense. Purchaser will not pay any fees or
commissions to brokers, dealers, or other persons (other than the Information
Agent and the Dealer Managers) for soliciting tenders of Shares pursuant to
the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
GEORGESON
& COMPANY INC.
------------------------
Wall Street Plaza
New York, New York 10005
BANKS AND BROKERS CALL COLLECT (212) 440-9800
ALL OTHERS CALL TOLL FREE (800) 223-2064
THE DEALER MANAGERS FOR THE OFFER ARE:
IN THE UNITED STATES:
GOLDMAN, SACHS
& CO.
------------------------
85 Broad Street
New York, New York 10004
(212) 902-1000 (COLLECT)
(800) 323-5678 (TOLL FREE)
IN CANADA:
GOLDMAN SACHS CANADA
------------------------
150 King Street West
Toronto, Ontario MSH 109
(416) 343-8900
March 20, 1998
Exhibit 99(a)(8)
FOR IMMEDIATE RELEASE
- ---------------------
ABBOT INTERNATIONAL MUREX
MEDIA: TECHNOLOGIES CORPORATION
Rhonda Luniak MEDIA AND FINANCIAL:
(847) 938-9725 Catherine Bardwick
(800) 238-1664
FINANCIAL COMMUNITY:
John Thomas
(847) 938-2655
ABBOTT LABORATORIES TO ACQUIRE
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
FOR $234 MILLION OR $13 PER SHARE
ABBOTT PARK, Ill., and TORONTO, March 16, 1998 -- Abbott Laboratories
(NYSE: ABT) and International Murex Technologies Corporation (NASDAQ: MURXF)
today announced that they have entered into a definitive agreement for Abbott
to acquire Murex in a cash tender offer valued at approximately $234 million
or $13 per share. The Abbott and Murex board of directors have unanimously
approved the offer. The tender offer is expected to be completed in
approximately five weeks, subject to regulatory approvals and customary
closing conditions.
Under the terms of the agreement, Abbott will promptly commence a cash
tender offer to acquire 100 percent of the outstanding shares of Murex for
$13 per share. Following the completion of the tender offer, the remaining
Murex shares will be acquired by an indirect wholly-owned subsidiary of
Abbott in a compulsory acquisition or amalgamation for $13 per share.
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ABBOTT LABORATORIES TO ACQUIRE
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
PAGE 2
"We are extremely pleased to add Murex's technologies and products to
our company," said Thomas D. Brown, senior vice president, diagnostic
operations, Abbott Laboratories. "Murex fits very well with our diagnostic
operations, complementing our existing product line as well as providing new
growth opportunities, particularly in the areas of infectious disease
screening and patient monitoring."
"Our combination with Abbott will allow the full potential of our
technologies and products to be realized, and Abbott's strength in the market
will enhance Murex's ability to deliver high quality products to its
customers," said F. Michael P. Warren, chairman of Murex.
"The diagnostics market continues to evolve and consolidate. Size and
economy of scale are necessary to remain competitive," said C. Robert Cusick,
vice chairman, president and chief executive officer of Murex. "This
transaction will provide our existing and new products the formidable support
of the world's leading diagnostics company. In return we provide Abbott with
unique technologies, an extensive microtiter plate infectious disease product
line and our patient monitoring portfolio."
Murex realized 1997 revenues of $106 million. The company is an
independent, medical diagnostics company which develops, manufactures and
markets a wide range of products for the detection, screening and monitoring
of infectious diseases and other medical conditions.
-more-
ABBOTT LABORATORIES TO ACQUIRE
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
PAGE 3
Abbott Laboratories is a global, diversified health care company devoted
to the discovery, development, manufacture and marketing of pharmaceutical,
diagnostic, nutritional and hospital products. The company employs 54,000
people and markets its products in more than 130 countries. In 1997, the
company's sales and net earnings were $11.9 billion and $2.1 billion,
respectively, with earnings per share of $2.72.
Abbott's news releases and other information are available on the
company's web site at http://www.abbott.com.
###
ACQUISITION AGREEMENT
Among
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION,
ABBOTT LABORATORIES
and
AAC ACQUISITION LTD.
dated as of March 13, 1998
TABLE OF CONTENTS
PAGE
----
ARTICLE I THE OFFER. . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
Section 1.1 The Offer. . . . . . . . . . . . . . . . . . . . . . . . -2-
Section 1.2 Company Action . . . . . . . . . . . . . . . . . . . . . -3-
Section 1.3 Boards of Directors and Committees; Section 14(f). . . . -5-
Section 1.4 Company Stock Options. . . . . . . . . . . . . . . . . . -6-
ARTICLE II THE COMPLETION OF THE ACQUISITION . . . . . . . . . . . . . . . -7-
Section 2.1 The Compulsory Acquisition . . . . . . . . . . . . . . . -7-
Section 2.2 The Amalgamation . . . . . . . . . . . . . . . . . . . . -7-
Section 2.3 Meeting and Voting . . . . . . . . . . . . . . . . . . . -7-
ARTICLE III EXCHANGE OF SHARE CAPITAL . . . . . . . . . . . . . . . . . . . -8-
Section 3.1 Exchange of Share Capital. . . . . . . . . . . . . . . -8-
Section 3.2 Exchange of Certificates . . . . . . . . . . . . . . . . -8-
Section 3.3 Shareholders' Meeting. . . . . . . . . . . . . . . . . .-10-
Section 3.4 Dissenting Shares. . . . . . . . . . . . . . . . . . . .-11-
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . . . . . . .-11-
Section 4.1 Organization and Qualification; Subsidiaries . . . . . .-11-
Section 4.2 Capitalization of the Company and Its Subsidiaries . . .-12-
Section 4.3 Authority Relative to This Agreement . . . . . . . . . .-13-
Section 4.4 Non-Contravention; Required Filings and Consents . . . .-13-
Section 4.5 SEC Reports. . . . . . . . . . . . . . . . . . . . . . .-14-
Section 4.6 Absence of Certain Changes; Derivatives. . . . . . . . .-15-
Section 4.7 Board Recommendation Statement; Offer Documents. . . . .-15-
Section 4.8 Finder's Fee; Professional Expenses. . . . . . . . . . .-15-
Section 4.9 Absence of Litigation. . . . . . . . . . . . . . . . . .-16-
Section 4.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . .-16-
Section 4.11 Employee Benefits. . . . . . . . . . . . . . . . . . . .-17-
Section 4.12 Compliance . . . . . . . . . . . . . . . . . . . . . . .-20-
Section 4.13 Environmental Matters. . . . . . . . . . . . . . . . . .-20-
Section 4.14 Intellectual Property. . . . . . . . . . . . . . . . . .-21-
Section 4.15 Significant Agreements . . . . . . . . . . . . . . . . .-22-
Section 4.16 Insurance. . . . . . . . . . . . . . . . . . . . . . . .-23-
Section 4.17 Properties . . . . . . . . . . . . . . . . . . . . . . .-24-
Section 4.18 Labor Matters. . . . . . . . . . . . . . . . . . . . . .-24-
Section 4.19 Regulatory Matters . . . . . . . . . . . . . . . . . . .-24-
-i-
Section 4.20 Voting Requirements. . . . . . . . . . . . . . . . . . .-26-
ARTICLE V REPRESENTATIONS AND WARRANTIES OF
PARENT AND SUBSIDIARY . . . . . . . . . . . . . . . . . . . .-26-
Section 5.1 Organization . . . . . . . . . . . . . . . . . . . . . .-26-
Section 5.2 Authority Relative to this Agreement . . . . . . . . . .-26-
Section 5.3 Non-Contravention; Required Filings and Consents . . . .-26-
Section 5.4 Offer Documents; Board Recommendation Statement;
Proxy Statement. . . . . . . . . . . . . . . . . . . .-27-
Section 5.5 No Prior Activities. . . . . . . . . . . . . . . . . . .-28-
Section 5.6 Financing. . . . . . . . . . . . . . . . . . . . . . . .-28-
Section 5.7 No Share Ownership . . . . . . . . . . . . . . . . . . .-28-
ARTICLE VI COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . .-28-
Section 6.1 Conduct of Business of the Company . . . . . . . . . . .-28-
Section 6.2 Access to Information. . . . . . . . . . . . . . . . . .-30-
Section 6.3 Reasonable Best Efforts. . . . . . . . . . . . . . . . .-31-
Section 6.4 Public Announcements . . . . . . . . . . . . . . . . . .-31-
Section 6.5 Indemnification. . . . . . . . . . . . . . . . . . . . .-32-
Section 6.6 Notification of Certain Matters. . . . . . . . . . . . .-32-
Section 6.7 Termination of Stock Plans . . . . . . . . . . . . . . .-33-
Section 6.8 No Solicitation. . . . . . . . . . . . . . . . . . . . .-33-
Section 6.9 Chiron License Agreement. . . . . . . . . . . . . . . .-35-
Section 6.10 Litigation Between Parent and the Company. . . . . . . .-35-
Section 6.11 Rights Plan. . . . . . . . . . . . . . . . . . . . . . .-35-
Section 6.12 Post-Option Exercise . . . . . . . . . . . . . . . . . .-36-
ARTICLE VII CONDITIONS TO THE COMPLETION OF THE ACQUISITION . . . . . . . .-36-
Section 7.1 Conditions to Each Party's Obligation to Effect the
Completion of the Acquisition. . . . . . . . . . . . . .-36-
Section 7.2 Conditions to the Obligation of Parent and
Subsidiary to Effect the Completion of the Acquisition .-37-
Section 7.3 Conditions to the Obligation of the Company to
Effect the Completion of the Acquisition . . . . . . . .-37-
ARTICLE VIII TERMINATION; EXPENSES; AMENDMENT; WAIVER . . . . . . . . . . .-37-
Section 8.1 Termination. . . . . . . . . . . . . . . . . . . . . . .-37-
Section 8.2 Effect of Termination. . . . . . . . . . . . . . . . . .-39-
Section 8.3 Fees and Expenses. . . . . . . . . . . . . . . . . . . .-40-
Section 8.4 Amendment. . . . . . . . . . . . . . . . . . . . . . . .-40-
Section 8.5 Extension; Waiver. . . . . . . . . . . . . . . . . . . .-40-
ARTICLE IX MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . .-40-
-ii-
Section 9.1 Nonsurvival of Representations and Warranties. . . . . .-40-
Section 9.2 Entire Agreement; Assignment . . . . . . . . . . . . . .-40-
Section 9.3 Notices. . . . . . . . . . . . . . . . . . . . . . . . .-40-
Section 9.4 Governing Law. . . . . . . . . . . . . . . . . . . . . .-42-
Section 9.5 Parties in Interest. . . . . . . . . . . . . . . . . . .-42-
Section 9.6 Specific Performance . . . . . . . . . . . . . . . . . .-42-
Section 9.7 Severability . . . . . . . . . . . . . . . . . . . . . .-42-
Section 9.8 Descriptive Headings . . . . . . . . . . . . . . . . . .-43-
Section 9.9 Certain Definitions. . . . . . . . . . . . . . . . . . .-43-
Section 9.10 Counterparts . . . . . . . . . . . . . . . . . . . . . .-46-
-iii-
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT, dated as of March 13, 1998, is among
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION, a British Columbia company
(the "Company"), ABBOTT LABORATORIES, an Illinois corporation ("Parent")
and AAC ACQUISITION LTD., a British Columbia company and an indirect wholly
owned subsidiary of Parent ("Subsidiary").
WHEREAS, the Boards of Directors of Parent, Subsidiary and the Company
have each approved the acquisition of the Company by Parent and Subsidiary
upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, in furtherance thereof, it is proposed that Subsidiary shall
make a tender offer to acquire all outstanding common shares, without par
value, of the Company (the "Shares"), for a net cash amount of U.S.$13.00
per Share (such amount, or any greater amount per Share paid pursuant to
the tender offer, being hereinafter referred to as the "Per Share Amount")
in accordance with the terms and subject to the conditions provided for
herein (the "Offer");
WHEREAS, the Board of Directors of the Company (the "Board") has (i)
determined that the consideration to be paid for each Share in the Offer
and the Completion of the Acquisition (as defined in the recital below) is
fair to and in the best interests of the shareholders of the Company and
(ii) approved this Agreement and the transactions contemplated hereby and
resolved to recommend acceptance of the Offer and approval and, if
necessary, the adoption of this Agreement by the shareholders of the
Company; and
WHEREAS, the Boards of Directors of Parent and Subsidiary have each
approved the completion of the acquisition of the Company by Parent and
Subsidiary (the "Completion of the Acquisition") through either (1) the
acquisition procedure (as contemplated under Section 255 of the BC Act (as
defined along with certain other terms in Section 9.9)) (the "Compulsory
Acquisition") if Subsidiary has purchased enough Shares in the Offer to
permit a Compulsory Acquisition or, if not, (2) an amalgamation,
arrangement or other business combination (as contemplated under the BC
Act) (the "Amalgamation") of Subsidiary with the Company following the
Offer upon the terms and subject to the conditions set forth herein and in
any other agreement required to effect the Amalgamation.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally
bound hereby, the Company, Parent and Subsidiary hereby agree as follows.
ARTICLE I
THE OFFER
Section 1.1 THE OFFER. (a) Provided that this Agreement shall not
have been terminated in accordance with Section 8.1 and no event shall have
occurred or circumstance shall exist which constitutes a failure to satisfy
any of the conditions set forth in Annex A hereto, Subsidiary shall
commence the Offer as promptly as practicable, but in no event later than
the fifth business day following the public announcement of the terms of
this Agreement. The obligation of Subsidiary to accept for payment and pay
for Shares tendered pursuant to the Offer shall be subject to the condition
that a number of Shares representing not less than 75% of the Company's
outstanding voting power (assuming the exercise of all outstanding options
to purchase Shares which options are not subject to binding agreements to
cancel) shall have been validly tendered and not withdrawn prior to the
expiration of the Offer (the "Minimum Condition"), and the obligation of
Subsidiary to commence the Offer and accept for payment and pay for Shares
tendered pursuant to the Offer shall be subject to the other conditions set
forth in Annex A hereto. It is agreed that the Minimum Condition and the
other conditions set forth in Annex A hereto are for the sole benefit of
Subsidiary and may be asserted by Subsidiary regardless of the
circumstances giving rise to any such condition. Subsidiary expressly
reserves the right in its sole discretion to waive, in whole or in part, at
any time or from time to time, any such condition, to increase the price
per Share payable in the Offer or to make any other changes in the terms
and conditions of the Offer; PROVIDED that Subsidiary may only waive the
Minimum Condition as long as Subsidiary purchases at least a majority of
the Shares outstanding (assuming the exercise of all outstanding options to
purchase Shares which options are not subject to binding agreements to
cancel) and that, unless previously approved by the Company in writing, no
change may be made that decreases the price per Share payable in the Offer,
changes the form of consideration payable in the Offer, reduces the maximum
number of Shares that Subsidiary offers to purchase in the Offer below a
majority of the Shares outstanding (assuming the exercise of all
outstanding options to purchase Shares which options are not subject to
binding agreements to cancel), imposes conditions to the Offer in addition
to those set forth in Annex A hereto or otherwise amends the terms of the
Offer in any way that would be materially adverse to holders of Shares.
Subject to the next sentence, Subsidiary covenants and agrees that, subject
to the terms and conditions of this Agreement, including, without
limitation, the conditions of the Offer set forth in Annex A hereto,
Subsidiary shall accept for payment and pay for Shares which have been
validly tendered and not withdrawn pursuant to the Offer as soon as it is
permitted to do so under applicable law. Notwithstanding the foregoing,
Subsidiary (i) may extend the Offer to purchase Shares in excess of the
Shares required to satisfy the Minimum Condition up to the tenth business
day following the date on which all conditions to the Offer shall first
have been satisfied or waived, provided that, by virtue of making any such
extension, Subsidiary shall be deemed to waive and thereafter shall not be
entitled to assert any of the conditions to the consummation of the Offer
contained in subsections (b), (c), (d) and (e) to Annex A hereto, (ii)
shall extend the Offer at least until 11:59 p.m. New York City time on the
sixth business day following the delivery to Parent of a Notice of Superior
Proposal (as defined in Section 6.8) and (iii) shall extend the Offer at
least until the expiration of the period set forth
-2-
in paragraph (d) or (e) of Annex A if a notice of breach has been delivered
in accordance therewith. The Per Share Amount payable in the Offer shall
be paid net to the seller in cash, upon the terms and subject to the
conditions of the Offer.
(b) As soon as practicable on the date of commencement of the
Offer, Parent and Subsidiary shall file (i) with the Securities and
Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1
with respect to the Offer and (ii) with the appropriate Canadian
authorities any required filings with respect to the Offer, which in the
case of both (i) and (ii) will contain the offer to purchase, form of the
related letter of transmittal and related documents published or filed by
Parent or Subsidiary (together with any supplements or amendments thereto,
the "Offer Documents"). Parent, Subsidiary and the Company each agrees
promptly to correct any information provided by it for use in the Offer
Documents if and to the extent that any such information shall have become
false or misleading in any material respect and Parent and Subsidiary each
further agrees to take all steps necessary to cause the Offer Documents as
so corrected to be filed with the SEC and the appropriate Canadian
authorities and to be disseminated to holders of Shares, in each case as
and to the extent required by applicable laws. The Company and its counsel
shall be given a reasonable opportunity to review and comment on the Offer
Documents prior to their filing with the SEC and the appropriate Canadian
authorities and shall be provided with any comments Parent, Subsidiary and
their counsel may receive from the SEC or the appropriate Canadian
authorities with respect to the Offer Documents promptly after receipt of
such comments.
Section 1.2 COMPANY ACTION. (a) The Company hereby approves of and
consents to the Offer and represents and warrants that the Board, at a
meeting duly called and held on March 15, 1998, unanimously (i) determined
that this Agreement and the transactions contemplated hereby, including the
Offer and the Completion of the Acquisition, are fair to and in the best
interests of the shareholders of the Company, (ii) approved this Agreement
and the transactions contemplated hereby, including the Offer and the
Completion of the Acquisition and (iii) resolved to recommend that the
shareholders of the Company accept the Offer, tender their Shares
thereunder to Subsidiary and, if required by applicable law, approve and
adopt this Agreement and the Completion of the Acquisition. The Company
further represents and warrants that Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJ") has delivered to the Board its written
opinion dated March 15, 1998 to the effect that, as of the date of such
opinion, subject to the assumptions and limitations expressed therein, the
consideration to be received by the holders of Shares in the Offer and the
Completion of the Acquisition pursuant to this Agreement is fair to such
holders from a financial point of view. The Company hereby consents to the
inclusion in the Offer Documents of the fact of the recommendations of the
Board described in this Section 1.2(a). The Company represents and
warrants that the Board has made appropriate amendments to and
determinations under the Rights Plan (the "Rights Plan Amendments and
Determinations"), including without limitation: (A) an amendment to the
definition of "Acquiring Person" under the Rights Plan to exclude Parent,
Subsidiary and their subsidiaries from that definition; (B) an amendment to
the definition of "Separation Time" under the Rights Plan to provide that
the Separation Time shall not occur by virtue of the execution of this
Agreement or the Shareholder Agreements, the consummation of the
transactions
-3-
contemplated or permitted hereunder or thereunder or the acquisition or
purchase of Shares by Parent, Subsidiary so their subsidiaries and a
determination by the Board to the same effect; and (C) a determination
under Section 1.1(a)(v) by the Board approving the acquisition of Shares by
Parent, Subsidiary or their subsidiaries pursuant to this Agreement or the
Shareholder Agreements, or any other acquisition or purchase of Shares by
Parent, Subsidiary or their subsidiaries. The Company further represents
and warrants that, because of the Rights Plan Amendments and
Determinations, (i) the Rights Plan is inapplicable to Parent's and
Subsidiary's entering into this Agreement and the Shareholder Agreements
and (ii) the Rights Plan would not impede or cause an adverse effect on, or
otherwise be applicable to Parent, Subsidiary or any of their subsidiaries
if, Parent, Subsidiary or any of their subsidiaries (A) purchases or
acquires, or proposes to purchase or acquire, any securities of the Company
pursuant to the Offer, the Completion of the Acquisition or the Shareholder
Agreements or (B) purchases or acquires or proposes to purchase or acquire
any securities of the Company or enters into any agreement requiring or
permitting the purchase or acquisition of any securities of the Company
after Parent, Subsidiary or any of their subsidiaries has purchased or has
acquired Shares pursuant to the Offer or upon exercise of an Option (as
defined in each of the Shareholder Agreements).
(b) As soon as practicable on the date of commencement of the
Offer, the Company shall file a combined Solicitation/Recommendation
Statement on Schedule 14D-9 and any Directors' Circular required by
Canadian law (together with any amendments or supplements thereto, the
"Board Recommendation Statement"), shall file such Board Recommendation
Statement with both the SEC and the appropriate Canadian authorities and
shall mail the combined Board Recommendation Statement to the shareholders
of the Company at the time of commencement of the Offer, together with the
Offer Documents. The Board Recommendation Statement shall at all times
contain the determinations, approvals and recommendations described in
Section 1.2(a), unless, subject to the requirements of Section 6.8, the
Company's directors determine in good faith, based upon the written advice
of independent legal counsel, that the withdrawal of any of such
determinations is required for the discharge of their fiduciary duties to
shareholders under applicable law. Parent, Subsidiary and the Company each
agrees promptly to correct any information provided by it for use in the
Board Recommendation Statement if and to the extent that any such
information shall have become false or misleading in any material respect.
The Company further agrees to take all steps necessary to cause the Board
Recommendation Statement as so corrected to be filed with the SEC and the
appropriate Canadian authorities and to be disseminated to holders of
Shares, in each case as and to the extent required by applicable U.S.
federal and Canadian securities laws. Parent, Subsidiary and their counsel
shall be given a reasonable opportunity to review and comment on the Board
Recommendation Statement prior to its filing with the SEC and the
appropriate Canadian authorities and shall be provided with any comments
the Company and its counsel may receive from the SEC or the appropriate
Canadian authorities with respect to the Board Recommendation Statement
promptly after receipt of such comments.
(c) In connection with the Offer, the Company will promptly
furnish Subsidiary with mailing labels, security position listings and any
available listing or computer file containing the names and addresses of
the record holders of the Shares as of a recent date
-4-
and shall furnish Subsidiary with such additional information and
assistance (including, without limitation, updated lists of shareholders,
mailing labels and lists of securities positions) as Subsidiary or its
agents may reasonably request in communicating the Offer to the record and
beneficial holders of Shares. Subject to the requirements of applicable
law, and except for such steps as are necessary to disseminate the Offer
Documents and any other documents necessary to consummate the Completion of
the Acquisition, Subsidiary and its affiliates and associates shall hold in
confidence the information contained in any such labels, listings and
files, will use such information only in connection with the Offer and the
Completion of the Acquisition, and, if this Agreement shall be terminated,
will deliver to the Company all copies of such information then in their
possession.
Section 1.3 BOARDS OF DIRECTORS AND COMMITTEES; SECTION 14(f). (a)
Promptly upon the purchase by Subsidiary of Shares pursuant to the Offer
and from time to time thereafter, so long as Parent and Subsidiary are not
in material breach of their respective obligations hereunder, Subsidiary
shall be entitled to designate up to such number of directors, rounded up
to the next whole number, on the Board that equals the product of (i) the
total number of directors on the Board (giving effect to the election of
any additional directors pursuant to this Section) and (ii) the percentage
that the number of Shares owned by Subsidiary and its affiliates (including
any Shares purchased pursuant to the Offer) bears to the total number of
outstanding Shares, and the Company shall, upon request by Subsidiary,
promptly either increase the size of the Board to the extent permitted by
applicable law or use its reasonable best efforts to secure the resignation
of such number of directors as is necessary to enable Subsidiary's
designees to be elected to the Board and shall cause Subsidiary's designees
to be so elected; PROVIDED, HOWEVER, that at all times prior to the
Completion of the Acquisition at least two persons who are directors of the
Company as of the date hereof and designated by the Company as soon as
reasonably practicable after the date hereof (or who are designated by such
designated directors) shall be entitled to remain directors of the Company
(the "Continuing Directors"). Promptly upon request by Subsidiary, the
Company will use its reasonable best efforts to cause persons designated by
Subsidiary to constitute the same percentage as the number of Subsidiary's
designees to the Board bears to the total number of directors on the Board
on (i) each committee of the Board, (ii) each board of directors or similar
governing body or bodies of each subsidiary of the Company designated by
Subsidiary and (iii) each committee of each such board or body.
Notwithstanding the foregoing, until the completion of the Offer, the
Company shall use its reasonable best efforts to ensure that all of the
members of the Board and of such boards, bodies and committees as of the
date hereof who are not employees of the Company shall remain members of
the Board and such boards, bodies and committees. In complying with this
subsection (a) and without restricting the right of the two Continuing
Directors to serve on the Board, the parties shall cause the composition of
the Board and its committees to comply with applicable law and listing
requirements.
(b) The Company's obligations to appoint designees to the Board
shall be subject to Section 14(f) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and Rule 14f-1 promulgated thereunder.
The Company shall promptly take all actions required pursuant to Section
14(f) and Rule 14f-1 in order to fulfill its obligations under this
-5-
Section 1.3 and shall include in the Board Recommendation Statement such
information with respect to the Company and its officers and directors as
is required under Section 14(f) and Rule 14f-1. Parent or Subsidiary will
supply to the Company in writing and be solely responsible for any
information with respect to either of them and their nominees, officers,
directors and affiliates required by Section 14(f) and Rule 14f-1.
(c) Following the election or appointment of Subsidiary's
designees to the Board pursuant to this Section 1.3 and prior to the
Effective Time, any amendment or modification of this Agreement or the
Articles of Association or Memorandum of Association of the Company, any
termination of this Agreement by the Company, any extension by the Company
of the time for the performance of any of the obligations or other acts of
Parent or Subsidiary, any waiver of any of the Company's rights hereunder
or any other action with respect to this Agreement or the transactions
contemplated hereby which is materially adverse to holders of Shares
generally (other than Subsidiary) will require the concurrence of at least
fifty percent of the Continuing Directors.
Section 1.4 COMPANY STOCK OPTIONS. (a) Unless Parent and the
Company make the Option Election (as defined below), the Company shall,
prior to completion of the Offer: (i) use its best efforts to amend each
outstanding stock option, warrant or other right to acquire Shares
("Company Options") or any plans with respect to Company Options to permit
vesting of unvested and exercise of Company Options contingent on
consummation of the Offer; (ii) declare all Company Options to be fully
exercisable and vested prior to the completion of the Offer and contingent
on consummation of the Offer; and (iii) use its best efforts to cause the
holders of Company Options to exercise their Company Options and tender the
Shares so acquired in the Offer.
(b) Parent and the Company may agree, after consulting their
respective counsel, to implement the steps set forth in this Section 1.4(b)
instead of the steps set forth in Section 1.4(a) (the "Option Election").
If the parties make the Option Election: (i) immediately prior to
consummation of the Offer, the Company shall offer to pay to the holder of
each Company Option, in exchange for the agreement by such holder to cancel
his, her or its Company Options, an amount equal to (x) the difference
between the Per Share Amount and the per Share exercise price of such
Company Option, multiplied by (y) the number of Shares underlying such
holder's Company Option; (ii) the Company will use its best efforts to
cause the holders of Company Options to accept the Company's offer set
forth above and enter into appropriate cancellation agreements; and (iii)
Parent shall, immediately following consummation of the Offer, lend to
(subject to any of the Company's contractual restrictions and at the
Applicable Federal Rate) or contribute to the capital of the Company cash
in an amount equal to the amount necessary to satisfy payment by the
Company of the amounts required under this Section 1.4(b).
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(c) The Company, Parent and the Board shall take whatever actions are
required such that, as of the Effective Time, any Company Options not
exercised or canceled pursuant to Section 1.4(a) or 1.4(b) above are
converted into a fully vested and exercisable right to acquire common stock
of Parent in a manner that is substantially consistent with the
requirements applicable to "issuing or assuming a stock option in a
transaction to which section 424(a) applies," as that phrase is defined in
Section 424(a) of the Code (as defined in Section 4.2); provided that the
Company Options (and any replacements) shall not confer on the holders
thereof any rights to acquire securities of the Company. Parent shall
cooperate in whatever actions are required for the Company and the Board to
implement this Section 1.4(c).
ARTICLE II
THE COMPLETION OF THE ACQUISITION
Section 2.1 THE COMPULSORY ACQUISITION. Subject to the satisfaction
or waiver of the conditions set forth in Article VII, if after purchasing
Shares in the Offer (and, if Subsidiary chooses to do so, through open
market purchases for 30 days or less), Subsidiary owns enough Shares to
effectuate a Compulsory Acquisition, Subsidiary shall as promptly as
practicable thereafter, effectuate a Compulsory Acquisition in which every
shareholder of the Company other than Subsidiary surrenders his, her or its
ownership of Shares to Subsidiary in exchange for the payment by Subsidiary
to each such shareholder of the Per Share Amount, all in accordance with
the provisions of Section 255 of the BC Act. Subsidiary shall as promptly
as practicable make such filings and take such other actions as are
necessary to implement the Compulsory Acquisition.
Section 2.2 THE AMALGAMATION. Subject to the satisfaction or waiver
of the conditions set forth in Article VII, if after purchasing Shares in
the Offer, Subsidiary does not own enough Shares to effectuate a Compulsory
Acquisition (and has not acquired enough Shares within 30 days through open
market purchases if Subsidiary has chosen to make such open market
purchases), the parties shall as soon as practicable thereafter consummate
the Amalgamation as provided in the remainder of this Section 2.2 and in
Article III and in any amalgamation agreement entered into to effect the
Amalgamation (the "Amalgamation Agreement"). Subject to the terms and
conditions of this Agreement, the Amalgamation Agreement and applicable
provisions of the BC Act, at the Effective Time: (i) Subsidiary will
amalgamate with the Company; (ii) the separate existence of Subsidiary and
the Company will cease; and (iii) Amalco will continue as the successor
corporation to the business and undertaking theretofore undertaken by the
Company and Subsidiary. From and after the Effective Time, and without any
further action on the part of any person, the Amalgamation will have all
the effects provided by applicable Legal Requirements, the effects
described in Section 3.1 hereof with respect to the exchange of share
capital and the effects to be set forth in the Amalgamation Agreement.
Section 2.3 MEETING AND VOTING. Parent shall, and shall cause
Subsidiary to, cause all Shares beneficially owned by them to be present
and voting for the purpose of a quorum and to
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be voted affirmatively in favor of the Amalgamation at any meeting or
solicitation of consents with respect thereto.
ARTICLE III
EXCHANGE OF SHARE CAPITAL
Section 3.1 EXCHANGE OF SHARE CAPITAL. At the Effective Time, by
virtue of the Amalgamation and without any action on the part of Parent,
Subsidiary, the Company or the holders of any of the following securities,
the parties agree as follows:
(a) EXCHANGE CONSIDERATION. Each Share outstanding immediately
prior to the Effective Time (except Shares subject to Section 3.1 (b))
shall be exchanged for one Preference Share as contemplated in the
Amalgamation Agreement. In turn, each Preference Share will be immediately
redeemed by Amalco upon payment to each remaining holder of Shares of the
Per Share Amount for each Share.
(b) SUBSIDIARY-OWNED SHARES. Any Shares issued and outstanding
immediately prior to the Effective Time and owned directly or indirectly by
Subsidiary, if any, will be canceled and retired, and no consideration will
be delivered in exchange therefor.
(c) SUBSIDIARY EXCHANGE. Each common share of Subsidiary (the
"Subsidiary Common Shares") outstanding immediately prior to the Effective
Time will be exchanged for an identical number of Amalco common shares.
Section 3.2 EXCHANGE OF CERTIFICATES.
(a) EXCHANGE AGENT. In the event of either the Compulsory
Acquisition or the Amalgamation, as of the Effective Time, Parent shall
enter into an agreement with a bank or trust company selected by the
Company to act as exchange agent (the "Exchange Agent") in connection with
the surrender of certificates that, prior to the Effective Time, evidenced
outstanding Shares ("Share Certificates"). Prior to the Closing Date,
Parent will deposit with the Exchange Agent for exchange in accordance with
this Section 3.2 cash funds, as they are needed, required to pay the Per
Share Amount to all holders of the Shares outstanding immediately prior to
the Effective Time (other than Shares owned by Parent or any of its
subsidiaries).
(b) EXCHANGE. As soon as practicable after the Effective Time,
Parent will cause the Exchange Agent to mail to each person who was a
holder of record of Shares and Company Options at the Effective Time: (i) a
letter of transmittal (which will specify that delivery will be effective,
and risk of loss and title to any Share Certificates will pass, only upon
delivery of the Share Certificates to the Exchange Agent and will be in
such form and will have such other provisions as are specified by Parent
and reasonably acceptable to the Company); and (ii) instructions for use in
effecting the surrender of Share Certificates in exchange for the
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aggregate Per Share Amount due each holder of Shares at the Effective Time.
Upon surrender of Share Certificates for cancellation to the Exchange Agent
or to such other agent or agents as may be appointed by Parent, together
with such letter of transmittal, duly executed, and such other documents as
may be required by the Exchange Agent or such other agent, the holder of
such Share Certificate will be entitled to receive in exchange therefor the
aggregate amount of the Per Share Amount due each holder of Shares at the
Effective Time and the Share Certificate so surrendered will be canceled.
In the event of a transfer of ownership of Shares that is not registered in
the transfer records of the Company, the aggregate amount of the Per Share
Amount may be paid to a person other than the person in whose name the
surrendered Share Certificate is registered if the Share Certificate
representing such Shares is presented to the Exchange Agent accompanied by
all documents required to evidence and effect such transfer and by evidence
reasonably satisfactory to Parent that any applicable stock transfer tax
has been paid. Parent will not directly or indirectly pay or reimburse any
person for any transfer taxes of the type referred to in the preceding
sentence. If any Per Share Amount to be paid to a person other than the
person in whose name the Share Certificates surrendered in exchange
therefor are registered, it will be a condition to the delivery of such Per
Share Amount that the Share Certificates so surrendered are properly
endorsed or accompanied by appropriate stock powers and otherwise in proper
form for transfer, that such transfer otherwise is proper and that the
person requesting such transfer pays to the Exchange Agent any transfer or
other taxes payable by reason of the foregoing or establishes to the
satisfaction of the Exchange Agent that such taxes have been paid or are
not required to be paid.
(c) CERTIFICATES NOT EXCHANGED. After the Effective Time, each
outstanding Company Share Certificate will, until surrendered for exchange
in accordance with this Section 3.2, be deemed for all purposes to evidence
only the right to receive the aggregate Per Share Amount in respect of such
Share Certificate.
(d) EXPENSES. Except as otherwise expressly provided in this
Agreement, Parent will pay all charges and expenses, including those of the
Exchange Agent, in connection with the exchange of the Shares for the
appropriate Per Share Amount, except any charges or expenses that are
otherwise solely the liability of one or more holders of Shares. Any funds
deposited with the Exchange Agent that remain unclaimed by the former
shareholders of the Company after nine (9) months following the Effective
Time will be delivered to Parent upon its demand, and any former
shareholders of the Company who have not then complied with the
instructions for exchanging their Company Share Certificates will
thereafter look only to Parent for exchange payment of the appropriate Per
Share Amount in Share Certificates.
(e) NO LIABILITY. None of Parent, Subsidiary, the Company,
Amalco or the Exchange Agent will be liable to any holder of Shares for any
cash funds delivered to a state or provincial abandoned property
administrator or other public official pursuant to any applicable abandoned
property, escheat or similar law.
(f) LOST CERTIFICATES. If any Share Certificate is lost, stolen
or destroyed, the Exchange Agent will issue in exchange for such lost,
stolen or destroyed Share Certificate the
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aggregate Per Share Amount payable in respect thereof as determined in
accordance with the terms of this Agreement, subject to the condition that
the person to whom the Per Share Amount is to be paid shall have (a)
delivered to Parent an affidavit claiming such Share Certificate to be
lost, stolen, or destroyed and (b) if required by Parent, given Parent an
indemnity satisfactory to Parent against any claim that may be made against
Parent with respect to the Share Certificate alleged to have been lost,
stolen or destroyed.
(g) At the consummation of the Offer, the Board of Directors of
the Company shall (i) terminate the ESPP and (ii) notify all participants
thereunder of its termination.
(h) CLOSING OF THE COMPANY'S TRANSFER BOOKS. At the Effective
Time, the stock transfer books of the Company shall be closed and no
transfer of shall be made thereafter. In the event that, after the
Effective Time, Company Share Certificates are presented to Amalco, they
shall be exchanged for the appropriate Per Share Amount as provided in
Section 3.2(b) hereof.
(i) CLOSING. The closing of the transactions contemplated by
this Agreement (the "Closing") will take place (i) at the offices of Mayer,
Brown & Platt, 190 South LaSalle Street, Chicago, Illinois, at 9:00 a.m.
local time on the date that is the first business day after the day on
which the last of the conditions set forth in Article VIII (excluding
delivery of opinions and certificates) is fulfilled or waived or (ii) at
such other place and time as Parent and the Company agree in writing. The
date on which the Closing occurs is referred to in this Agreement as the
"Closing Date."
Section 3.3 SHAREHOLDERS' MEETING. The Company, acting through the
Board, shall, in accordance with applicable law as soon as practicable
following the consummation of the Offer:
(i) duly call, give notice of, convene and hold an
annual or special meeting of its shareholders (the "Shareholders'
Meeting") for the purpose of considering the Amalgamation;
(ii) subject to the Board's fiduciary obligations under
applicable law, include in the Proxy Statement for the
Shareholders' Meeting the recommendation of the Board that
shareholders of the Company vote in favor of the approval and
adoption of this Agreement and the transactions contemplated
hereby; and
(iii) use its reasonable best efforts (A) to obtain and
furnish the information required to be included by it in the
Proxy Statement and, after consultation with Parent, respond
promptly to any comments made by the SEC or the appropriate
Canadian authorities with respect to the Proxy Statement and any
preliminary version thereof and cause the Proxy Statement to be
mailed to its shareholders at the earliest practicable time
following the consummation of the
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Offer and (B) to obtain the necessary approvals by its shareholders of
the Amalgamation.
Section 3.4 DISSENTING SHARES. Notwithstanding anything in this
Agreement to the contrary, a shareholder of the Company who did not tender
Shares pursuant to the Offer may exercise the rights granted under the BC
Act to apply to court in connection with the Subsidiary's plan to acquire
any outstanding Shares pursuant to the Compulsory Acquisition. A
shareholder of the Company who did not tender Shares pursuant to the Offer
may exercise rights of dissent in the manner set forth in Section 207 of
the BC Act in connection with the Amalgamation. If, after the Effective
Time, such holder fails to perfect or withdraws or loses his, her or its
right to apply to court to dissent, as applicable, such Shares shall be
treated as if they had been converted, as of the Effective Time, into a
right to receive the Per Share Amount without interest thereon. The
Company shall give Parent prompt notice of any notices or demands received
by the Company for appraisal of Shares, and, prior to the Effective Time,
Parent shall have the right to participate in all negotiations and
proceedings with respect to such demands. Prior to the Effective Time, the
Company shall not, except with the prior written consent of Parent, make
any payment with respect to, or settle or offer to settle, any such
demands.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Subsidiary as
follows:
Section 4.1 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES. (a) Each
of the Company and its subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its organization and has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its business as now
being conducted, except where the failure to be so organized, existing and
in good standing or to have such power and authority would not,
individually or in the aggregate, have a material adverse effect on the
business, assets, liabilities, results of operations, or financial
condition of the Company and its subsidiaries, taken as a whole, but
specifically excluding any adverse change in the general economy in the
United States, any adverse change in the diagnostic industry generally, any
adverse change arising from the transactions contemplated hereby and any
adverse change resulting from any change in generally accepted accounting
principles required to be made as a result of the issuance of a new
accounting standard or change to an existing accounting standard (a
"Material Adverse Effect").
(b) Each of the Company and its subsidiaries is duly qualified
or licensed and in good standing to do business in each jurisdiction in
which the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification or licensing necessary,
except where the failure to be so duly qualified or licensed and in good
standing would not, individually or in the aggregate, have a Material
Adverse Effect.
-11-
(c) The Company has heretofore furnished to Parent complete and
correct copies of the Company's Memorandum of Association and Articles of
Association, each as amended, and the equivalent organizational documents
of each of its subsidiaries, each as amended to the date hereof. Such
Memorandum of Association and Articles of Association and equivalent
organizational documents are in full force and effect and no other
organizational documents are applicable to or binding upon the Company or
its subsidiaries. The Company is not in violation of any of the provisions
of its Memorandum of Association or Articles of Association and no
subsidiary of the Company is in violation of any of the provisions of such
subsidiary's equivalent organizational documents.
(d) The Company has heretofore furnished to Parent a complete
and correct list of all entities in which the Company owns, directly or
indirectly, any equity or voting interest, which list sets forth the amount
of capital stock of or other equity interests in such entities, directly or
indirectly. No entity in which the Company owns, directly or indirectly,
less than a 50% equity interest is, individually or when taken together
with all other such entities, material to the business of the Company and
its subsidiaries, taken as a whole.
Section 4.2 CAPITALIZATION OF THE COMPANY AND ITS SUBSIDIARIES.
The authorized capital stock of the Company consists of 200,000,000 Shares
of which, as of March 12, 1998, 16,826,599 Shares were issued and
outstanding (together with the associated common share purchase rights),
16,816 Shares were subject to issuance under a restricted bonus plan and up
to 600,000 shares were authorized for issuance under the ESPP. All
outstanding shares of capital stock of the Company have been validly
issued, and are fully paid, nonassessable and free of preemptive rights.
As of March 12, 1998, Company Options to purchase an aggregate of 1,655,000
Shares were outstanding. Schedule 4.2 sets forth the complete list of all
outstanding Company Options, including the exercise prices thereof, as of
March 12, 1998. Except as set forth above and except pursuant to any
common share purchase rights under the Rights Plan, there are outstanding
(i) no shares of capital stock or other voting securities of the Company,
(ii) no securities of the Company convertible into or exchangeable for
shares of capital stock or voting securities of the Company, (iii) no
options, subscriptions, warrants, convertible securities, calls or other
rights to acquire from the Company, and no obligation of the Company to
issue, deliver or sell any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of
the Company and (iv) no equity equivalents, interests in the ownership or
earnings of the Company or other similar rights (collectively, "Company
Securities"). None of the Company Options are "incentive stock options"
(within the meaning of section 422 of the United States Federal Internal
Revenue Code of 1986, as amended (the "Code")). There are no outstanding
obligations of the Company or any of its subsidiaries to repurchase, redeem
or otherwise acquire any Company Securities, other than the Company's
obligations hereunder respecting the Company Options. Each of the
outstanding shares of capital stock of each of the Company's subsidiaries
is duly authorized, validly issued, fully paid and nonassessable and is
directly or indirectly owned by the Company, free and clear of all security
interests, liens, claims, pledges, charges, voting agreements or other
encumbrances of any nature whatsoever (collectively, "Liens"). There are
no existing options, calls or commitments of any character relating to the
issued or unissued capital stock or other securities
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of any subsidiary of the Company. Since March 11, 1998, no Company Options
have been granted and no Shares have been issued except pursuant to Company
Options, the Company's restricted bonus plan and the ESPP as disclosed
above.
Section 4.3 AUTHORITY RELATIVE TO THIS AGREEMENT. The Company has
all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the Board and no other
corporate proceedings on the part of the Company are necessary to authorize
this Agreement or to consummate the transactions so contemplated (other
than, with respect to the Amalgamation, the approval (i) required by Policy
9.1 of the Ontario Securities Commission ("OSC") and (ii) of the holders of
75% of all outstanding Shares and the filing of the appropriate documents
as required by the BC Act and the federal laws of Canada). This Agreement
has been duly and validly executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company enforceable
against the Company in accordance with its terms except as such
enforceability may be limited by equity principles, bankruptcy laws and
other similar laws affecting creditors' rights generally.
Section 4.4 NON-CONTRAVENTION; REQUIRED FILINGS AND CONSENTS. (a)
The execution, delivery and performance by the Company of this Agreement
and the consummation of the transactions contemplated hereby (including the
Completion of the Acquisition) do not and shall not (i) contravene or
conflict with the Memorandum of Association or Articles of Association of
the Company or the equivalent organizational documents of any of its
subsidiaries; (ii) assuming that all consents, authorizations and approvals
contemplated by subsection (b) below have been obtained and all filings
described therein have been made, contravene or conflict with or constitute
a violation of any provision of any law, regulation, judgment, injunction,
order or decree binding upon or applicable to the Company, any of its
subsidiaries or any of their respective properties; (iii) conflict with, or
result in the breach or termination of any provision of or constitute a
default (with or without the giving of notice or the lapse of time or both)
under, or give rise to any right of termination, cancellation, or loss of
any benefit to which the Company or any of its subsidiaries is entitled
under any provision of any agreement, contract, license or other instrument
binding upon the Company, any of its subsidiaries or any of their
respective properties, or allow the acceleration of the performance of, any
obligation of the Company or any of its subsidiaries under any indenture,
mortgage, deed of trust, lease, license, contract, instrument or other
agreement to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or any of their respective
assets or properties is subject or bound; or (iv) result in the creation or
imposition of any Lien on any asset of the Company or any of its
subsidiaries, except in the case of clauses (ii), (iii) and (iv) for any
such contraventions, conflicts, violations, breaches, terminations,
defaults, cancellations, losses, accelerations and Liens which would not
individually or in the aggregate have a Material Adverse Effect or
materially interfere with the consummation by the Company of the
transactions contemplated by this Agreement.
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(b) The execution, delivery and performance by the Company of
this Agreement and the consummation of the transactions contemplated hereby
(including the Completion of the Acquisition) by the Company require no
action by or in respect of, or filing with, any governmental body, agency,
official or authority (whether domestic, foreign or supranational) other
than (i) the filing of a compulsory acquisition notice, in the case of the
Compulsory Acquisition, or the filing and approval of amalgamation
documents with the British Columbia Registrar of Companies and the filing
and approval of an application to the Supreme Court of British Columbia in
the case of the Amalgamation in accordance with the BC Act and any other
Canadian provincial authorities; (ii) compliance with any applicable
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the "HSR Act"); (iii) compliance with the Canadian Competition
Act; (iv) compliance with the Investment Canada Act; (v) compliance with
any applicable requirements of any laws or regulations relating to the
regulation of monopolies or competition in Germany and compliance with any
applicable requirements of the United Kingdom Fair Trading Act; (vi)
compliance with any applicable requirements of the Exchange Act and state
and provincial securities, takeover and Blue Sky laws; and (vii) such
actions or filings which, if not taken or made, would not, individually or
in the aggregate, have a Material Adverse Effect or materially interfere
with the consummation by the Company of the transactions contemplated by
this Agreement.
Section 4.5 SEC REPORTS. (a) The Company has filed all required
forms, reports and documents with the SEC and all applicable Canadian
provincial regulators since January 1, 1996 (collectively, the "SEC
Reports"), each of which has complied in all material respects with
applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the Exchange Act. As of their respective dates,
none of the SEC Reports, including, without limitation, any financial
statements or schedules included therein, contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The audited
consolidated financial statements and unaudited consolidated interim
financial statements of the Company included in the SEC Reports fairly
present in all material respects, in conformity with generally accepted
accounting principles applied on a consistent basis (except as may be
indicated in the notes thereto), the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates thereof and their
consolidated results of operations and cash flows for the periods then
ended (subject to normal year-end adjustments and the absence of footnotes
in the case of any unaudited interim financial statements). The Company
has heretofore provided complete and correct copies of each of the SEC
Reports to Parent.
(b) Except as reflected or reserved against in the audited
consolidated balance sheet of the Company and its subsidiaries at December
31, 1997 the Company and its subsidiaries have no liabilities of any nature
(whether accrued, absolute, contingent or otherwise), except for
liabilities incurred in the ordinary course of business since December 31,
1997, or which would not, individually or in the aggregate, have a Material
Adverse Effect.
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Section 4.6 ABSENCE OF CERTAIN CHANGES; DERIVATIVES. (a) Since
December 31, 1997, except as specifically disclosed in the SEC Reports
filed prior to the date of this Agreement, neither the Company nor any of
its subsidiaries has (i) taken any of the actions set forth in Section 6.1
except as permitted thereunder, or (ii) entered into any transaction, or
conducted its business or operations, other than in the ordinary course of
business consistent with past practice. Since December 31, 1997, there has
not been any event or change related to the Company which has had a
Material Adverse Effect.
(b) Schedule 4.6(b) sets forth a complete and correct list of
all Derivative Financial Instruments (as defined below) (including the
face, contract or notional amount of and any open position relating to such
Derivative Financial Instruments and a brief summary of the nature and
terms thereof) to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective assets or properties is subject or bound (including, without
limitation, funds of the Company or any of its subsidiaries invested by any
other person). For purposes of this Agreement, "Derivative Financial
Instrument" means any futures, forward, swap, option or swaption contract,
or any other financial instrument with similar characteristics and/or
generally characterized as a "derivative" security.
Section 4.7 BOARD RECOMMENDATION STATEMENT; OFFER DOCUMENTS.
Neither the Board Recommendation Statement, nor any of the information
provided by the Company and/or by its auditors, legal counsel, financial
advisors or other consultants or advisors specifically for use in the Offer
Documents or any supplements or amendments thereto when filed with the SEC
or any Canadian regulatory authority and on the date first published, sent
or given to the Company's shareholders, as the case may be, will contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
Section 4.8 FINDER'S FEE; PROFESSIONAL EXPENSES. Except as set
forth on Schedule 4.8(a), no broker, finder, investment banker or other
intermediary is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by and on behalf of the Company.
The maximum amounts payable to each such person is set forth on Schedule
4.8(a). The Company has heretofore furnished to Parent a complete and
correct copy of all agreements between the Company and the persons
identified on Schedule 4.8(a) pursuant to which such persons would be
entitled to any payment relating to the transactions contemplated hereby.
The maximum amount paid, payable or to become payable by the Company or any
of its subsidiaries to any attorney, financial advisor, broker, consultant,
accountant or other advisor ("Professionals") other than Willkie, Farr &
Gallagher in connection with the evaluation, negotiation, execution or
performance of this Agreement or the consummation of the transactions
contemplated to be effected pursuant hereto will not exceed U.S.$8 million
(other than such amounts payable to accountants in connection with the
Company complying with the provisions of this Agreement). Since December
31, 1997, and other than ordinary course expenses consistent with the
historical amounts and frequency reflected in the financial statements
contained in the SEC Reports filed prior to the date hereof, the Company
has not incurred, and will not incur any costs, fees or
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expenses (i) as of the date hereof related to the services of Professionals
for any other purpose in excess of U.S.$1,750,000, which amount is
summarized on Schedule 4.8(b) or (ii) payable to Willkie, Farr & Gallagher
other than the amount set forth on Schedule 4.8(a).
Section 4.9 ABSENCE OF LITIGATION. There is no action, suit,
claim, investigation or proceeding (or, to the knowledge of the Company,
any basis for any person to assert any claim likely to result in liability
or any other adverse determination) pending against, or to the knowledge of
the Company, threatened against or affecting, the Company or any of its
subsidiaries or any of their respective properties before any court or
arbitrator or any administrative, regulatory or governmental body, or any
agency or official (collectively, "Litigation"), that individually or in
the aggregate, would reasonably be expected to have a Material Adverse
Effect. The Company and its subsidiaries are not party to any Litigation
initiated by them other than Litigation with Parent or its subsidiaries or
in connection with the collection of accounts receivable in the ordinary
course of business. Without limiting the generality of the foregoing, as
of the date hereof, there is no Litigation to which the Company or any of
its subsidiaries is a party that (i) in any manner challenges or seeks to
prevent, enjoin, alter or delay the Offer or the Completion of the
Acquisition or any of the other transactions contemplated hereby; or (ii)
alleges criminal action or inaction by the Company or any of its
Subsidiaries. As of the date hereof, neither the Company nor any of its
subsidiaries nor any of their respective properties is subject to any
order, writ, judgment, injunction, decree, determination or award having,
or which would reasonably be expected to have, a Material Adverse Effect or
which would prevent or delay the consummation of the transactions
contemplated hereby.
Section 4.10 TAXES. (a) All material federal, state, provincial,
local, foreign and other governmental Tax (as defined below) returns,
reports, information returns and statements of the Company and each of its
subsidiaries (including any consolidated Tax returns that include the
income or loss of the Company or any of its subsidiaries) required by law
to be filed or sent as of the Effective Time have been or shall be duly
filed or sent, and such returns, reports and statements are or shall be
true, complete and correct in all material respects. All material federal,
provincial, state, local, foreign and other governmental taxes,
assessments, fees and similar charges, including without limitation,
income, gross receipts, net proceeds, alternative or add-on minimum, ad
valorem, value added, turnover, sales, use, property, personal property
(tangible and intangible), stamp, leasing, lease, user, excise, duty,
franchise, transfer, license, withholding, payroll, employment, fuel,
excess profits, environmental, occupational and interest equalization,
windfall profits, severance, and other charges (including interest and
penalties) (collectively, "Taxes") imposed upon the Company or any of its
subsidiaries or any of the properties, assets or income of the Company or
any of its subsidiaries which are due and payable through the Effective
Time or claimed by any taxing authority to be due and payable through the
Effective Time have been or shall be paid or reserved for, or adequate
provision shall be made therefor, as of the Effective Time, other than
Taxes being contested in good faith by the Company or any of its
subsidiaries concerning an aggregate amount which is not material to the
business of the Company or such of its subsidiaries. The most recent
financial statements contained in the SEC
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Reports reflect an adequate Tax reserve in accordance with generally
accepted accounting principles.
(b) As of the date hereof, (i) there are no material Tax claims
pending against the Company or any of its subsidiaries and the Company has
no knowledge of any threatened claim for material Tax deficiencies or any
basis for such claims, (ii) no Tax returns for the Company or any of its
subsidiaries have been or are currently being audited by any taxing
authority, (iii) to the Company's knowledge, there are no material issues
have been raised in any examination by any taxing authority with respect to
the Company or any of its subsidiaries which, by application of similar
principles, reasonably could be expected to result in a proposed deficiency
for any other period not so examined and (iv) there are not now in force
any waivers or agreements by the Company or any of its subsidiaries for the
extension of time for the assessment of any material Tax, nor has any such
waiver or agreement been requested by the Internal Revenue Service, Revenue
Canada or any other taxing authority. The statute of limitations with
respect to any year or period to and including the fiscal year ended 1991
has expired.
(c) The Company and all of its subsidiaries have paid or are
withholding and shall pay when due to the proper taxing authorities all
material withholding amounts required to be withheld with respect to all
Taxes, including without limitation, sales and use Taxes and Taxes on
income or benefits and Taxes for unemployment, social security or other
similar programs with respect to salary and other compensation of
directors, officers and employees of the Company and its subsidiaries.
(d) Neither the Company nor any of its subsidiaries has any
liability for any material federal, provincial, state, local, foreign or
other Taxes of any corporation or entity other than the Company and its
subsidiaries, including without limitation any liability arising from the
application of U.S. Treasury Regulation Section 1.1502-6 or any analogous
provision of provincial, state, local or foreign law.
(e) Neither the Company nor any of its subsidiaries is or has
been a party to any material Tax sharing agreement with any corporation
other than the Company and its subsidiaries.
(f) To the best of the Company's knowledge and as of the date
hereof, no person who holds five (5) percent or more of the stock of the
Company is a "foreign person" as defined in Section 1445(f)(3) of the Code.
Section 4.11 EMPLOYEE BENEFITS. (a) Schedule 4.11(a) contains a
true and complete list of each material bonus, deferred compensation,
incentive compensation, stock purchase, stock option, severance or
termination pay, hospitalization or other medical, life, disability or
other insurance, supplemental unemployment benefits, fringe benefit,
profit-sharing, pension, or retirement plan, program, agreement or
arrangement, each material employment agreement and each other material
employee benefit plan, program, agreement or arrangement sponsored,
maintained or contributed to or required to be contributed to by the
Company, or by
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any trade or business, whether or not incorporated (an "ERISA Affiliate"),
that together with the Company would be deemed a "single employer" within
the meaning of section 4001 of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or with respect to which the Company or any
ERISA Affiliate has any liability or contingent liability (collectively,
the "Plans" and, individually, a "Plan"), whether or not any such Plan is
subject to ERISA. Schedule 4.11(a) identifies each of the Plans that is an
"employee benefit plan" as that term is defined in section 3(3) of ERISA
(the "ERISA Plans").
(b) Other than with respect to the matters addressed in Section
4.11(p) below, the Company has heretofore delivered to Parent true and
complete copies of each of the Plans and all material contracts relating
thereto, or to the funding thereof, including, without limitation, all
material trust agreements, insurance contracts, administration contracts,
investment management agreements, subscription and participation
agreements, and recordkeeping agreements, each as in effect on the date
hereof. In the case of any Plan which is not in written form, Parent has
been supplied with an accurate description of such Plan as in effect on the
date hereof. A true and correct copy of the most recent annual report,
actuarial report, accountant's opinion of the Plan's financial statements,
and Internal Revenue Service determination letter with respect to each
Plan, to the extent applicable, and a current schedule of assets (and the
fair market value thereof assuming liquidation of any asset which is not
readily tradable) held with respect to any funded Plan has been supplied to
the Parent, and there have been no material changes in the financial
condition in the respective Plans from that stated in the annual reports
and actuarial reports supplied.
(c) None of the Plans is subject to title IV of ERISA and none
of the Plans is a multiemployer plan (as defined in section 3(37) of
ERISA).
(d) With respect to any Plan subject to ERISA, neither the
Company nor any ERISA Affiliate, nor any Plan, nor any trust created
thereunder, nor any trustee or administrator thereof has engaged in a
prohibited transaction (as defined in section 406 of ERISA or section 4975
of the Code) with respect to any such Plan nor have there been any other
prohibited transactions with respect to any such Plans.
(e) Each Plan complies and has been operated and administered in
form and operation in all material respects in accordance with its terms
and applicable law, including but not limited to ERISA and the Code, and no
event has occurred which will or could cause any Plan to fail to comply
with such requirements and no notice has been issued by any governmental
authority questioning or challenging such compliance.
(f) Except as set forth on Schedule 4.11(f), each Plan which is
an "employee pension benefit plan" (as defined in section 3(2) of ERISA)
complies in form and in operation with all applicable requirements of
sections 401(a) and 501(a) of the Code; there have been no amendments to
any such Plan which are not the subject of a favorable determination letter
issued with respect thereto by the Internal Revenue Service; and no event
has occurred which will or could give rise to disqualification of any such
Plan under such sections or to a tax under section
-18-
511 of the Code. Each ERISA Plan which is a "voluntary employees'
beneficiary association" (within the meaning of section 501(c)(9) of the
Code) is the subject of a favorable determination letter issued with
respect thereto by the Internal Revenue Service, a copy of which has been
heretofore provided to Parent, and no event has occurred which will or
could give rise to loss of any such Plan's exemption from taxation under
section 501(a) of the Code or to a tax under section 511 of the Code.
(g) Except as set forth on Schedule 4.11(g), none of the assets
of any Plan are invested in employer securities or employer real property.
(h) There have been no acts or omissions by the Company or any
ERISA Affiliate which have given rise to or may give rise to fines,
penalties, taxes or related charges under section 502 of ERISA or Chapters
43, 47, 68 or 100 of the Code for which the Company or any ERISA Affiliate
may be liable.
(i) Actuarially adequate accruals for all obligations under the
Plans are reflected in the financial statements of the Company.
(j) Each Plan which is intended to be "qualified" within the
meaning of section 401(a) of the Code is so qualified and the trusts
maintained thereunder are exempt from taxation under section 501(a) of the
Code.
(k) The Company has the right to amend or terminate any Plan.
(l) Except as set forth on Schedule 4.11(l), no Plan provides
benefits, including without limitation, death or medical benefits (whether
or not insured), with respect to current or former employees of the Company
or any ERISA Affiliate beyond their retirement or other termination of
service (other than (i) coverage mandated by applicable law or (ii) death
benefits or retirement benefits under any employee pension benefit plan).
(m) Except as provided in Schedule 4.11(m), the consummation of
the transactions contemplated by this Agreement will not (i) entitle any
current or former employee or officer of the Company or any ERISA Affiliate
to severance pay, unemployment compensation or any other payment, except as
expressly provided in this Agreement or (ii) accelerate the time of payment
or vesting, or increase the amount of compensation due any such employee or
officer.
(n) As of the date hereof, there are no pending (or, to the
knowledge of the Company, threatened or anticipated) material claims by, on
behalf of, or against any Plan, by any employee or beneficiary covered
under any such Plan, or otherwise involving any such Plan (other than
routine claims for benefits).
(o) Except for the options listed in Schedule 4.2 under the
heading, "Outside of any Plan" each of the outstanding Company Options was
granted under the International
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Murex Technologies Corporation Amended and Restated Employee Equity
Incentive Plan (the "Equity Incentive Plan") and, (except for the name and
address of the grantee, the date, the exercise price, the vesting schedule,
the number of Shares subject to the option, and the expiration date) is
evidenced by an award agreement that is identical in all material respects
to one of the two award agreements attached to Schedule 4.11(o)(1). Except
for the name and address of the grantee, the date, the exercise price, the
number of Shares subject to the option, and the expiration date, each of
the options listed in Schedule 4.2 under the heading "Outside of any Plan"
is evidenced by an option agreement that is identical in all material
respects to the option agreement attached to Schedule 4.11(o)(2).
Section 4.12 COMPLIANCE. Neither the Company nor any of its
subsidiaries is in violation of, or has violated, any applicable provisions
of (i) any laws, rules, statutes, orders, ordinances or regulations or (ii)
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise, or other instrument or obligations to which the Company
or its subsidiaries is a party or by which the Company or any of its
subsidiaries or its or any of their respective properties are bound or
affected, which in either case, individually or in the aggregate, would
result in a Material Adverse Effect. Without limiting the generality of
the foregoing, neither the Company nor any of its subsidiaries is in
violation of, or has violated any applicable provisions of the Foreign
Corrupt Practices Act, the Trading with the Enemy Act, the Anti-Economic
Discrimination Act, the International Emergency Economic Powers Act, the
Export Administration Regulations or any law or regulation relating to
Medicare or Medicaid anti-kickback fraud and abuse or any Canadian
equivalent of the foregoing.
Section 4.13 ENVIRONMENTAL MATTERS. (a) The Company and its
subsidiaries are in compliance with all applicable Environmental Laws
(which compliance includes, but is not limited to, the possession by the
Company and its subsidiaries of all permits and other governmental
authorizations required under applicable Environmental Laws, and compliance
with the terms and conditions thereof), except for any noncompliance that
individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect. Neither the Company nor any of its subsidiaries
has received any communication (written or oral), whether from a
governmental authority, citizens group, employee or otherwise, that alleges
that the Company or any of its subsidiaries is not in such compliance, and
there are no present actions, activities, circumstances, conditions, events
or incidents that may prevent or interfere with such compliance in the
future which, individually or in the aggregate, would have a Material
Adverse Effect.
(b) There is no Environmental Claim pending or, to the knowledge
of the Company, threatened against the Company or any of its subsidiaries,
or, to the knowledge of the Company, against any person or entity whose
liability for any Environmental Claim the Company or any of its
subsidiaries has or may have retained or assumed either contractually or by
operation of law, which individually or in the aggregate would reasonably
be expected to have a Material Adverse Effect.
-20-
(c) There are no present actions, activities, circumstances,
conditions, events or incidents (including, without limitation, the
release, emission, discharge, presence or disposal of any Hazardous
Material) which could form the basis of any Environmental Claim against the
Company or any of its subsidiaries, or, to the knowledge of the Company,
against any person or entity whose liability for any Environmental Claim
the Company or any of its subsidiaries has or may have retained or assumed
either contractually or by operation of law, which individually or in the
aggregate would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any of its subsidiaries has, and to
the knowledge of Company, no other person has Released (as defined below),
placed, stored, buried or dumped Hazardous Materials or any other wastes
(including, but not limited to, biological wastes) produced by, or
resulting from, any business, commercial or industrial activities,
operations or processes, on, beneath or adjacent to any property owned,
operated or leased or formerly owned, operated or leased by the Company or
any of its subsidiaries, and neither the Company nor any of its
subsidiaries has received notice that it is a potentially responsible party
for the Cleanup of any property, whether or not owned or operated by the
Company or any of its subsidiaries, which individually or in the aggregate
would reasonably be expected to have a Material Adverse Effect.
(e) The Company has no material reports, studies, analyses,
tests or monitoring possessed or initiated by the Company or any of its
subsidiaries pertaining to Hazardous Materials in, on, beneath or adjacent
to the property owned or leased by the Company or any of its subsidiaries
or regarding the Company's and its subsidiaries' compliance with applicable
Environmental Laws.
(f) Except as set forth in Schedule 4.13, no transfers of
material permits or other material governmental authorizations under
Environmental Laws, and no additional material permits or other material
governmental authorizations under Environmental Laws, will be required to
permit the Company and its subsidiaries, as the case may be, to be in
compliance in all material respects with all applicable Environmental Laws
immediately following the transactions contemplated hereby.
(g) To the knowledge of the Company, as of the date hereof,
there is not any noncompliance, allegation of noncompliance, pending or
threatened Environmental Claim, actions, circumstances, conditions, events,
incidents, Releases, placement, storage, burial or dumping described in
paragraphs (a) through (d) above which represents a current liability or
could reasonably be expected to result in liability exceeding $200,000 in
the aggregate, other than as disclosed in the SEC Reports filed prior to
the date hereof.
Section 4.14 INTELLECTUAL PROPERTY.
(a) Schedule 4.14(a) sets forth a complete list of all patents,
all material patent applications, all trademarks and all service marks
owned by the Company and each of its subsidiaries. The Company warrants
that the Company or one of its subsidiaries is the sole owner of the
property identified in Schedule 4.14(a), and that the Company and its
subsidiaries
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have not granted or promised to grant any exclusive licenses or any
material non-exclusive licenses or covenants not to sue thereunder to any
third party (other than to Parent or its subsidiaries and other than
trademark or service mark licenses entered into in the ordinary course of
business under distribution and supply agreements).
(b) Except as set forth on Schedule 4.14(b): (1) the Company
and each of its subsidiaries owns, or is licensed to use (in each case,
free and clear of any Liens in respect of the Company's or any of its
subsidiaries' interests therein) all Intellectual Property (as defined
below) used in or necessary for the conduct of its business as currently
conducted; (2) the use of any Intellectual Property by the Company and its
subsidiaries does not infringe on or otherwise violate the rights of any
person; (3) no product (or component thereof or process) used, sold or
manufactured by the Company or any of its subsidiaries infringes or
otherwise violates the Intellectual Property of any other person; and (4)
no person is challenging, infringing on or otherwise violating any right of
the Company or any of its subsidiaries with respect to any Intellectual
Property owned by and/or licensed to the Company and its subsidiaries,
except for (2) through (4) as would not have a Material Adverse Effect.
Without limiting the generality of the foregoing in parts (b)(2), (b)(3)
and (b)(4) hereof, except as set forth on Schedule 4.14(b), the use, sale
and/or manufacture by Company and its subsidiaries of microtitre products,
LiPA products, rapid HIV diagnostic products, and bacteriology products,
does not constitute a material violation of the rights or Intellectual
Property of any other person. For purposes of this Agreement "Intellectual
Property" shall mean trademarks, service marks, brand names, certification
marks, trade dress, assumed names, trade names and other indications of
origin, the goodwill associated with the foregoing and registrations in any
jurisdiction of, and applications in any jurisdiction to register, the
foregoing, including any extension, modification or renewal of any such
registration or application; inventions, discoveries and ideas, whether
patentable or not in any jurisdiction; patents, applications for patents
(including, without limitation, division, continuations, continuations in
part and renewal applications), and any renewals, extensions or reissues
thereof, in any jurisdiction; nonpublic information, trade secrets and
confidential information and rights in any jurisdiction to limit the use or
disclosure thereof by any person; writings and other works, whether
copyrightable or not in any jurisdiction; registrations or applications for
registration of copyrights in any jurisdiction, and any renewals or
extensions thereof; any similar intellectual property or proprietary
rights; and any claims or causes of action arising out of or related to any
infringement or misappropriation of any of the foregoing.
Section 4.15 SIGNIFICANT AGREEMENTS. Schedule 4.15, Section A, sets
forth a complete and correct list of all of the following contracts,
agreements, indentures, leases, mortgages, licenses, plans, arrangements,
understandings, commitments (whether oral or written) and instruments
(collectively, "Contracts") in effect as of the date hereof: (i) each
Contract filed as an exhibit to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997 and that would be required to
be filed by the Company as an exhibit to an Annual Report Form 10-K under
applicable rules and regulations of the SEC; (ii) any Contract (other than
the leases) that are material to the business of the Company and its
subsidiaries, taken as a whole (it being understood that, for the purposes
hereof, any Contracts not calling for annual payments in excess of
U.S.$500,000 in the next 12 months or for aggregate payments in excess
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of U.S.$5,000,000 or any Contracts terminable by the Company or its
subsidiaries without payment or penalty on 90 days' notice or less shall
not be deemed to be material); and (iii) any Contract relating to
Intellectual Property and set forth on Schedule 4.15, Section C (the
contracts, agreements and commitments listed in Schedule 4.15,
collectively, the "Significant Agreements"). Except as noted on Schedule
4.15, the Company has heretofore furnished to Parent complete and correct
copies of the Significant Agreements, each as amended or modified to the
date hereof (including any waivers with respect thereto). Except as set
forth on Schedule 4.15 or pursuant to Significant Agreements or as set
forth in the SEC Reports filed prior to the date hereof, since December 31,
1997, there have been no transactions between the Company or any of its
subsidiaries, on the one hand, and the other parties to the Significant
Agreements or any of their respective affiliates, on the other hand, other
than transactions in the ordinary course of business consistent with past
practice. As of the date hereof, each of the Significant Agreements is in
full force and effect and enforceable in accordance with its terms subject
to equity principles and bankruptcy laws and other similar laws effecting
creditors' rights generally. As of the date hereof, neither the Company
nor any of its subsidiaries has received any notice (written or oral) of
cancellation or termination of, or any expression or indication of an
intention or desire to cancel or terminate, any of the Significant
Agreements. As of the date hereof, no Significant Agreement is the subject
of, or, to the Company's knowledge, has been threatened to be made the
subject of, any arbitration, suit or other legal proceeding. As of the
date hereof, with respect to any Significant Agreement which by its terms
will terminate as of a certain date unless renewed or unless an option to
extend such Significant Agreement is exercised, neither the Company nor any
of its subsidiaries has received any notice (written or oral), or otherwise
has any knowledge, that any such Significant Agreement shall not be, or is
not likely to be, so renewed or that any such extension option shall not be
exercised. As of the date hereof, there exists no event of default or
occurrence, condition or act on the part of the Company or any of its
subsidiaries or, to the knowledge of the Company, on the part of the other
parties to the Significant Agreements which constitutes or would constitute
(with notice or lapse of time or both) a breach of or default under any of
the Significant Agreements and which, individually or in the aggregate,
would have a Material Adverse Effect. As of the date hereof, without
limiting the generality of the foregoing, the Company and its subsidiaries
are not in material breach or default of any of the terms of any of the
agreements identified on Schedule 4.15, Section C. Except as set forth on
Schedule 4.15, Section B, the execution, delivery and performance by the
Company of this Agreement and the consummation of the transactions
contemplated hereby do not and shall not conflict with, or result in the
breach or termination of any provision of or constitute a default (with or
without the giving of notice or the lapse of time or both) under, or give
rise to any right of termination, cancellation, or loss of any benefit to
which the Company or any of its subsidiaries is entitled under any
provision of any Significant Agreement.
Section 4.16 INSURANCE. Schedule 4.16 sets forth a complete and
correct list of all material insurance policies in effect as of the date
hereof (including a brief summary of the nature and terms thereof and any
amounts paid or payable to the Company or any of its subsidiaries
thereunder) providing coverage in favor of the Company or any of its
subsidiaries or any of their respective properties. Each such policy is in
full force and effect, no notice of
-23-
termination, cancellation or reservation of rights has been received with
respect to any such policy, to the knowledge of the Company there is no
default with respect to any provision contained in any such policy, and
there has not been any failure to give any notice or present any claim
under any such policy in a timely fashion or in the manner or detail
required by any such policy, except for any such failures to be in full
force and effect, any such terminations, cancellations, reservations or
defaults, or any such failures to give notice or present claims which,
individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect. The coverage provided by such policies is
reasonable in scope and amount, in light of the risks attendant to the
business and activities of the Company and its subsidiaries except for such
absences of coverage which would not, individually or in the aggregate,
have a Material Adverse Effect.
Section 4.17 PROPERTIES. The Company and its subsidiaries do not
own any real property. As of the date hereof, to the knowledge of the
Company, the plants and buildings of the Company and its subsidiaries used
in the operation of their business are structurally sound, have no known
material defects and are in good operating condition and repair (normal
wear and tear excepted). Schedule 4.17 sets forth a complete list of all
material real property and personal property leases of the Company and its
subsidiaries. All such leases are valid, binding and enforceable against
the Company and its subsidiaries (and, to the knowledge of the Company,
against each other party thereto) in accordance with their respective
terms, and there does not exist, under any lease of real property or
personal property calling for annual payments exceeding $100,000 or more,
any material defect or any event which, with notice or lapse of time or
both, would constitute a material default by the Company or its
subsidiaries or, to the knowledge of the Company, by any other party
thereto except for such third party breaches as would not have a Material
Adverse Effect and except as such enforceability may be limited by equity
principles, bankruptcy laws and other similar laws affecting creditors'
rights generally.
Section 4.18 LABOR MATTERS. Except as set forth in Schedule 4.18,
as of the date hereof, neither the Company nor any of its subsidiaries is a
party to any collective bargaining or other labor union contract applicable
to more than 10 persons employed by the Company or any of its subsidiaries,
no collective bargaining agreement is being negotiated by the Company or
any of its subsidiaries and the Company has no knowledge of any activities
or proceedings of any labor union to organize any of their respective
employees. There is no labor dispute, strike or work stoppage against the
Company or any of its subsidiaries pending or, to the Company's knowledge,
threatened which may interfere with the respective business activities of
the Company or any of its subsidiaries, except where such dispute, strike
or work stoppage would not reasonably be expected to have a Material
Adverse Effect.
Section 4.19 REGULATORY MATTERS.
(a) (i) With respect to each product that is, directly or indirectly,
being (i) researched for human diagnostics or (ii) distributed for
commercial sale by the Company or any of its subsidiaries (the "Products"):
(a)(i)(A) the Company and its subsidiaries have obtained all applicable
approvals, clearances, authorizations, licenses and registrations required
by United
-24-
States or foreign governments or government agencies, to permit the
manufacture, distribution, sale (including reimbursement and pricing),
marketing or human research of such Product (collectively, "Licenses"); (B)
the Company and its subsidiaries are in compliance in all material respects
with all terms and conditions of each License in each country in which such
Product is marketed, and with all requirements pertaining to the
manufacture, distribution, sale or human research of such Product which is
not required to be the subject of a License; (C) the Company and its
subsidiaries are in compliance in all material respects with all applicable
requirements (as set forth in relevant statutes and regulations) regarding
registration, licensure or notification for each site (in any country) at
which such Product is manufactured, processed, packed, held for
distribution or from which it is distributed; and (D) to the extent such
Product is intended for export from the United States, the Company and its
subsidiaries are in compliance in all material respects with either all
United States Food and Drug Administration ("FDA") requirements for
marketing or 21 U.S.C. Section 381(e) or 382; (ii) all manufacturing
operations performed by the Company and its subsidiaries have been and are
being conducted in full compliance with the current good manufacturing
practice, including, but not limited to, the good manufacturing practice
regulations issued by the FDA and counterpart requirements in the European
Union and other countries; (iii) all nonclinical laboratory studies, as
described in 21 C.F.R. Section 58.3(d), sponsored by the Company or any of
its subsidiaries have been and are being conducted in full compliance with
the good laboratory practice regulations set forth in 21 C.F.R. Part 58 and
counterpart requirements in the European Union and other countries; and
(iv) the Company and its subsidiaries are in full compliance with all
reporting requirements for all Licenses or plant registrations described in
the preceding clauses (a)(i)(A) and (a)(i)(C), including, but not limited
to, the adverse event reporting requirements for drugs in 21 C.F.R. Parts
312 and 314 and for devices in 21 C.F.R. Parts 812 and 803; except, in the
case of the preceding clauses (a)(i)(A) through (a)(i)(D), inclusive,
(a)(ii), (a)(iii) and (a)(iv), for any such failures to obtain or
noncompliance which, individually or in the aggregate, would not have a
Material Adverse Effect. Without limiting the generality of the foregoing
definition of "Licenses", such definition shall specifically include, with
respect to the United States, new drug applications, abbreviated new drug
applications, product license applications, investigational new drug
applications, premarket approval applications, premarket notifications
under Section 510(k) of the Federal Food, Drug and Cosmetic Act,
investigational device exemptions, and product export applications issued
by the FDA, as well as registrations issued by the Drug Enforcement
Administration of the Department of Justice.
(b) The Company will provide to Parent as promptly as practicable
after the date hereof a complete and correct list of all Products as of the
date hereof other than those not representing annual revenue in excess of
U.S. $100,000 unless the aggregate annual revenue of all excluded Products
exceeds U.S. $10,000,000.
(c) To the knowledge of the Company, neither the Company nor any of
its subsidiaries nor any of their officers, employees or agents has made
any untrue statement of a material fact or fraudulent statement to the FDA
or any foreign equivalent, failed to disclose a fact required to be
disclosed to the FDA or any foreign equivalent, or committed any act, made
any statement, or failed to make any statement, that would reasonably be
expected to provide a basis for the FDA
-25-
and any foreign equivalent to invoke its policy respecting, "Fraud, Untrue
Statements of Material Facts, Bribery, and Illegal Gratuities," set forth
in 56 Fed. Reg. 46191 (September 10, 1991).
Section 4.20 VOTING REQUIREMENTS. The affirmative vote (i) required
by Policy 9.1 of the OSC and (ii) of the holders of 75% of all outstanding
Shares present and voting and the filing of the appropriate documents as
required by the BC Act and the federal laws of Canada) respecting the
Amalgamation is the only vote of the holders of any class or series of
Company Securities necessary to approve this Agreement and the transactions
contemplated by this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUBSIDIARY
Each of Parent and Subsidiary represents and warrants to the Company
as follows:
Section 5.1 ORGANIZATION. Each of Parent and Subsidiary is a
corporation duly organized, validly existing and in good standing under the
laws of the state or province of its incorporation and has all requisite
corporate power and authority to own, lease and operate its properties and
to carry on its business as now being conducted, except where the failure
to be so organized, existing and in good standing or to have such power and
authority would not, individually or in the aggregate, materially and
adversely affect Parent's and Subsidiary's ability to consummate the
transactions contemplated hereby.
Section 5.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Each of Parent
and Subsidiary has all necessary corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the boards of
directors of Subsidiary and Parent and by the sole shareholder of
Subsidiary, and no other corporate proceedings on the part of Parent or
Subsidiary are necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement has been duly and validly
executed and delivered by each of Parent and Subsidiary and constitutes a
legal, valid and binding agreement of each of Parent and Subsidiary,
enforceable against each of Parent and Subsidiary in accordance with its
terms except as such enforceability may be limited by equity principles and
by bankruptcy laws and other similar laws affecting creditors' rights
generally.
Section 5.3 NON-CONTRAVENTION; REQUIRED FILINGS AND CONSENTS. (a)
The execution, delivery and performance by Parent and Subsidiary of this
Agreement and the consummation of the transactions contemplated hereby
(including the Completion of the Acquisition) do not and shall not (i)
contravene or conflict with the Certificate of Incorporation or By-Laws of
Parent or the Articles of Association or Memorandum of Association of
Subsidiary; (ii) assuming that all consents, authorizations and approvals
contemplated by subsection (b) below have been obtained and all filings
described therein have been made, contravene or conflict with or constitute
a
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violation of any provision of any law, regulation, judgment, injunction,
order or decree binding upon or applicable to Parent or Subsidiary or any
of their respective properties; (iii) conflict with, or result in the
breach or termination of any provision of or constitute a default (with or
without the giving of notice or the lapse of time or both) under, or give
rise to any right of termination, cancellation, or loss of any benefit to
which Parent or Subsidiary is entitled under any provision of any
agreement, contract, license or other instrument binding upon Parent,
Subsidiary or any of their respective properties, or allow the acceleration
of the performance of, any obligation of Parent or Subsidiary under any
indenture, mortgage, deed of trust, lease, license, contract, instrument or
other agreement to which Parent or Subsidiary is a party or by which Parent
or Subsidiary or any of their respective assets or properties is subject or
bound; or (iv) result in the creation or imposition of any Lien on any
asset of Parent or Subsidiary, except in the case of clauses (ii), (iii)
and (iv) for any such contraventions, conflicts, violations, breaches,
terminations, defaults, cancellations, losses, accelerations and Liens
which, individually or in the aggregate, would not reasonably be expected
to prevent or materially impair the ability of Parent and Subsidiary to
consummate the Offer and the Completion of the Acquisition.
(b) The execution, delivery and performance by Parent and
Subsidiary of this Agreement and the consummation of the transactions
contemplated hereby (including the Completion of the Acquisition) by Parent
and Subsidiary require no action by or in respect of, or filing with, any
governmental body, agency, official or authority (whether domestic, foreign
or supranational) other than (i) the filing of a compulsory acquisition
notice, in the case of the Compulsory Acquisition, or the filing of
amalgamation documents with the British Columbia Registrar of Companies and
the filing and approval of an application to the Supreme Court of British
Columbia in the case of the Amalgamation in accordance with the BC Act and
any other Canadian provinical authorities; (ii) compliance with any
applicable requirements of the HSR Act; (iii) compliance with the Canadian
Competition Act; (iv) compliance with the Investment Canada Act and any
other Canadian provincial authorities; (v) compliance with any applicable
requirements of any laws or regulations relating to the regulation of
monopolies or competition in Germany and compliance with any applicable
requirements of the United Kingdom Fair Trading Act, (vi) compliance with
any applicable requirements of the Exchange Act and state and provincial
securities, takeover and Blue Sky laws; and (vii) such actions or filings
which, if not taken or made, would not, individually or in the aggregate,
materially interfere with the consummation by Parent and Subsidiary of the
transactions contemplated by this Agreement.
Section 5.4 OFFER DOCUMENTS; BOARD RECOMMENDATION STATEMENT; PROXY
STATEMENT. Neither the Offer Documents, nor any of the information
provided by Parent or Subsidiary and/or by their auditors, legal counsel,
financial advisors or other consultants or advisors specifically for use in
the Board Recommendation Statement shall, on the respective dates on which
the Offer Documents, the Board Recommendation Statement or any supplements
or amendments thereto are filed with the SEC or the appropriate Canadian
authorities or on the date first published, sent or given to the Company's
shareholders, as the case may be, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which
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they were made, not misleading. Notwithstanding the foregoing, neither
Parent nor Subsidiary makes any representation or warranty with respect to
any information provided by the Company and/or by its auditors, legal
counsel, financial advisors or other consultants or advisors specifically for
use in the Offer Documents. None of the information provided by or prepared
by Parent or Subsidiary and/or by their auditors, attorneys, financial
advisors or other consultants or advisors specifically for use in the Proxy
Statement shall, at the time filed with the SEC or any appropriate Canadian
authority, at the time mailed to the Company's shareholders, at the time of
the Shareholders' Meeting or at the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading. The
Offer Documents shall comply as to form in all material respects with the
provisions of the Exchange Act and the rules and regulations thereunder.
Section 5.5 NO PRIOR ACTIVITIES. Since the date of its
incorporation, neither Subsidiary nor Amalco has not engaged in any
activities other than in connection with or as contemplated by this
Agreement or in connection with arranging any financing required to
consummate the transactions contemplated hereby.
Section 5.6 FINANCING. Subsidiary has or shall have available to
it all funds necessary to satisfy its obligations hereunder, including,
without limitation, the obligation to pay the Per Share Amount pursuant to
the Offer and the Completion of the Acquisition and to pay all related fees
and expenses in connection with the Offer and the Completion of the
Acquisition.
Section 5.7 NO SHARE OWNERSHIP. Immediately prior to the execution
of this Agreement, neither Parent nor Subsidiary is the beneficial or
record owner of any Shares.
ARTICLE VI
COVENANTS
Section 6.1 CONDUCT OF BUSINESS OF THE COMPANY. Except as
otherwise expressly provided in this Agreement, during the period from the
date hereof to the time Subsidiary's designees are elected as directors of
the Company pursuant to Section 1.3, the Company and its subsidiaries shall
each conduct its operations in the ordinary course of business consistent
with past practice, and the Company and its subsidiaries shall each use its
reasonable best efforts to preserve intact its business organization, to
keep available the services of its officers and employees and to maintain
existing relationships with licensors, licensees, suppliers, contractors,
distributors, customers and others having business relationships with it.
Without limiting the generality of the foregoing, and except as otherwise
expressly provided in this Agreement, prior to the Effective Time, neither
the Company nor any of its subsidiaries shall, without the prior written
consent of Subsidiary, which consent shall not unreasonably be withheld or
delayed:
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(a) amend or propose to amend its Articles of Association or
Memorandum of Association or equivalent organizational documents, or
increase or propose to increase the number of directors of the Company;
(b) authorize for issuance, issue, sell, deliver or agree or
commit to issue, sell or deliver (whether through the issuance or granting
of options, warrants, commitments, subscriptions, rights to purchase or
otherwise) any stock of any class or any other securities or equity
equivalents (including, without limitation, stock appreciation rights),
except (i) under the ESPP, (ii) the issuance of up to 16,816 Shares
pursuant to the Company's bonus plan or (iii) as required by option
agreements as in effect as of the date hereof, or amend any of the terms of
any such securities or agreements outstanding as of the date hereof;
(c) split, combine or reclassify any shares of its capital
stock, declare, set aside or pay any dividend or other distribution
(whether in cash, stock, or property or any combination thereof) in respect
of its capital stock, or redeem, repurchase or otherwise acquire any of its
securities or any securities of its subsidiaries;
(d) (i) incur any indebtedness for borrowed money or issue any
debt securities or, except in the ordinary course of business consistent
with past practice, assume, guarantee or endorse the obligations of any
other person (other than to wholly owned subsidiaries of the Company); (ii)
make any loans, advances or capital contributions to, or investments in,
any other person (other than to wholly owned subsidiaries of the Company);
(iii) pledge or otherwise encumber shares of capital stock of the Company
or any of its subsidiaries; or (iv) except in the ordinary course of
business consistent with past practice, mortgage or pledge any of its
assets, tangible or intangible, or create or suffer to exist any Lien
thereupon other than Permitted Liens;
(e) enter into, adopt or (except as may be required by law)
amend or terminate any bonus, profit sharing, compensation, severance,
termination, stock option, stock appreciation right, restricted stock,
performance unit, stock equivalent, stock purchase agreement, pension,
retirement, deferred compensation, employment, severance or other employee
benefit agreement, trust, plan, fund or other arrangement for the benefit
or welfare of any director, officer or employee, or (except, in the case of
employees who are not officers or directors, for normal compensation
increases in the ordinary course of business consistent with past practice
that, in the aggregate, do not result in a material increase in benefits or
compensation expense to the Company) increase in any manner the
compensation or benefits of any director, officer or employee or pay any
benefit not required by any plan or arrangement as in effect as of the date
hereof (including, without limitation, the granting or repricing of stock
options, restricted stock, stock appreciation rights or performance units);
(f) acquire, sell, lease, encumber, transfer or dispose of any
assets outside the ordinary course of business consistent with past
practice or any assets which in the aggregate are material to the Company
and its subsidiaries, taken as a whole, or enter into any contract,
agreement, commitment or transaction outside the ordinary course of
business consistent with past practice;
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(g) except as may be required as a result of a change in law or
in generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(h) (i) acquire (by amalgamation, merger, consolidation or
acquisition of stock or assets) any corporation, partnership or other
business organization or division thereof; (ii) authorize any new capital
expenditure or expenditures which, individually, is in excess of
U.S.$200,000 between the date hereof and March 31, 1998 and, thereafter, in
excess of the amounts set forth in the monthly capital budgets to be
prepared by the Company and approved by Parent in its reasonable
discretion; (iii) settle any litigation; or (iv) enter into or amend any
contract, agreement, commitment or arrangement with respect to any of the
foregoing;
(i) make any material Tax election or settle or compromise any
material Tax liability;
(j) pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction in the
ordinary course of business consistent with past practice or in accordance
with their terms;
(k) terminate, modify, amend or waive compliance with any
material provision of, any of the Significant Agreements, or fail to take
any action necessary to preserve the material benefits of any Significant
Agreement to the Company or any of its subsidiaries;
(l) enter into any agreement providing for the acceleration of
payment or performance or other consequence as a result of a change in
control of the Company;
(m) enter into any agreement providing for any license (other
than trademark or service mark licenses under supply or distribution
contracts entered into in the ordinary course of business), sale,
assignment or otherwise transfer any Intellectual Property or grant any
covenant not to sue with respect to any of its Intellectual Property;
(n) enter into any commitments to Professionals outside the
ordinary course of business or in excess of the amounts permitted by
Section 4.8;
(o) cancel or terminate any material insurance policies (other
than in connection with acquiring substantially equivalent replacement
policies) or reduce the amount of coverage thereunder; or
(p) take, or agree in writing or otherwise to take, any of the
actions described above in Section 6.1.
Section 6.2 ACCESS TO INFORMATION. (a) Subject to applicable law,
any third party confidentiality agreements and the agreements set forth in
Section 6.2(b), between the date hereof and the Effective Time, the Company
shall give each of Parent and Subsidiary and their
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counsel, financial advisors, auditors, and other authorized representatives
reasonable access to all employees, plants, offices, warehouses and other
facilities and to all books and records of the Company and its
subsidiaries, including its outside auditors, shall permit each of Parent
and Subsidiary and their respective counsel, financial advisors, auditors
and other authorized representatives to make such inspections as Parent or
Subsidiary may reasonably require and shall cause the Company's officers or
representatives and those of its subsidiaries to furnish promptly to Parent
or Subsidiary or their representatives such financial and operating data
and other information with respect to the business and properties of the
Company and any of its subsidiaries as Parent or Subsidiary may from time
to time request. No investigation pursuant to this Section 6.2 shall
affect any representations or warranties of the parties herein or the
conditions to the obligations of the parties hereunder. Information to
which the Company shall afford Parent access that pertains to the Company's
leased properties includes copies of all of the leases as well as copies of
all documents, reports, studies, inspections, surveys, title reports,
building occupancy and zoning permits, easements, recorded instruments and
other information in the Company's possession which pertain to utilities,
infrastructure, zoning, environmental condition, the leases, and any other
condition affecting the leased properties, and such copies are, to the
knowledge of the Company, correct and complete.
(b) Notwithstanding any provision of the Confidentiality
Agreement dated February 22, 1998 between Parent and the Company, Parent
and Subsidiary may (i) enter into this Agreement, (ii) acquire Shares
pursuant to the Offer and the Completion of the Acquisition and (iii) make
such disclosures in connection with the Offer, the Offer Documents and the
Proxy Statement as Parent and Subsidiary may determine in their reasonable
discretion is required by applicable law.
Section 6.3 REASONABLE BEST EFFORTS. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, all things reasonably necessary, proper or
advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement. Without
limiting the generality of the foregoing, Parent, Subsidiary and the
Company shall cooperate with one another (i) in the preparation and filing
of the Offer Documents, the Board Recommendation Statement, the Proxy
Statement and any required filings under the HSR Act and the other laws
referred to in Sections 4.4(b) and 5.3(b); (ii) in determining whether
action by or in respect of, or filing with, any governmental body, agency,
official or authority (either domestic or foreign) is required, proper or
advisable or any actions, consents, waivers or approvals are required to be
obtained from parties to any contracts, in connection with the transactions
contemplated by this Agreement; and (iii) in seeking timely to obtain any
such actions, consents and waivers and to make any such filings.
Section 6.4 PUBLIC ANNOUNCEMENTS. Parent and Subsidiary, on the
one hand, and the Company, on the other hand, shall consult with each other
before issuing any press release or otherwise making any public statements
with respect to the transactions contemplated by this Agreement and shall
not issue any such press release or make any such public statement prior to
such consultation, except as may be required by applicable law or by
applicable rules of any
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securities exchange or inter-dealer quotation system. The initial joint
announcement of the transactions contemplated by this Agreement shall be in
the form attached hereto as Annex B.
Section 6.5 INDEMNIFICATION. (a) For a period not less than six
years from the Effective Time, Parent shall (i) indemnify and hold harmless
the directors, officers, employees and agents of the Company (the
"Indemnified Parties") from and against claims, losses or obligations
arising out of events occurring prior to the Effective Time and relating to
their service as a director, officer, employee or agent of the Company
except to the extent an Indemnified Party has acted in bad faith or in a
manner he did not reasonably believe to be in or not opposed to the best
interests of the Company or, with respect to any criminal action or
proceeding, had reasonable cause to believe his conduct was unlawful and
(ii) cause the Company or Amalco, as the case may be, to maintain in effect
the provisions in its Articles of Association and Memorandum of Association
containing the provisions with respect to exculpation of director and
officer liability and indemnification set forth in the Articles of
Association and Memorandum of Association of the Company on the date of
this Agreement to the fullest extent permitted under applicable law, which
provisions shall not be amended, repealed or otherwise modified except as
required by applicable law or except to make changes permitted by
applicable law that would enlarge the exculpation or rights of
indemnification thereunder. In the event of any claim made against an
Indemnified Party covered by this Section 6.5(a), unless Parent, the
Company or Amalco has elected to defend that claim, Parent, the Company or
Amalco shall advance the reasonable fees and expenses of counsel selected
by that Indemnified Party (which counsel shall be reasonably satisfactory
to Parent and which counsel shall be the same for all Indemnified Parties
unless a conflict of interest between them requires more than one counsel),
upon receipt of a written undertaking by or on behalf of that Indemnified
Party to repay such amounts if it shall ultimately be determined that
Indemnified Party is not entitled to be indemnified under this Section
6.5(a). In the event of any claim made against an Indemnified Party covered
by this Section 6.5(a), unless Parent, the Company or Amalco has elected to
defend that claim, Parent, the Company or Amalco shall advance the
reasonable fees and expenses of counsel selected by that Indemnified Party
(which counsel shall be reasonably satisfactory to Parent and which counsel
shall be the same for all Indemnified Parties unless a conflict of interest
between them requires more than one counsel), upon receipt of a written
undertaking by or on behalf of that Indemnified Party to repay such amounts
if it shall ultimately be determined that Indemnified Party is not entitled
to be indemnified under this Section 6.5(a).
(b) Parent shall cause Amalco to maintain in effect for six years
from the Effective Time, to the extent available, the coverage provided by
the current directors' and officers' liability insurance policies
maintained by the Company (provided that Amalco may substitute therefor
policies of at least the same coverage containing terms and conditions
which are not materially less favorable) with respect to matters occurring
prior to the Effective Time; PROVIDED, HOWEVER, that nothing contained
herein shall require Amalco to incur any annual premium in excess of 200%
of the last annual aggregate premium paid prior to the date of this
Agreement for all current directors' and officers' liability insurance
policies maintained by the Company which the Company represents and
warrants to be not in excess of U.S.$225,000 (the "Current Premium")
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as of the date hereof. If such premiums for such insurance would at any
time exceed 200% of the Current Premium, then Amalco shall maintain
policies of insurance which, in Amalco's good faith determination, provide
the maximum coverage available at an annual premium equal to 200% of the
Current Premium.
Section 6.6 NOTIFICATION OF CERTAIN MATTERS. The Company shall
give prompt notice to Parent or Subsidiary, and Parent or Subsidiary shall
give prompt notice to the Company, as the case may be, of (i) the
occurrence, or non-occurrence, of any event the respective occurrence, or
non-occurrence, of which would be likely to cause any representation or
warranty contained in this Agreement to be untrue or inaccurate and (ii)
any failure of the Company, Parent or Subsidiary, as the case may be, to
comply with or satisfy any covenant, condition or agreement to be complied
with or satisfied by it hereunder; PROVIDED, that the delivery of any
notice pursuant to this Section 6.6 shall not limit or otherwise affect the
remedies available hereunder to the party receiving such notice.
Section 6.7 TERMINATION OF STOCK PLANS.
(a)The Board (or, if appropriate, any committee thereof) shall adopt
such resolutions or take such other actions as are required (i) to suspend
the ESPP and employee contributions thereto effective as of March 16, 1998,
(ii) to terminate the ESPP as of the date that Shares are purchased in the
Offer and (iii) to ratify, for purposes of Section 16(b) of the Exchange
Act, the transactions under this clause (a). If the date of the
consummation of the Offer occurs prior to the next Investment Date (as
defined in the ESPP), then the ESPP will refund the payroll deductions made
by the ESPP participants during the Offering Period (as defined in the
ESPP) immediately preceding that Investment Date to the participants. If
the date of the consummation of the Offer occurs on or after the Investment
Date, then as the payroll deductions will be applied to make purchases of
Shares as provided in the ESPP.
(b) Prior to the consummation of the Offer, the Board (or, if
appropriate, any committee thereof) shall adopt such resolutions or take
such other actions as are required to ensure that, following the Effective
Time, no participant in any stock, stock option, stock appreciation or
other benefit plan of the Company or any of its subsidiaries shall have any
right thereunder to acquire any capital stock of the Company or Amalco.
Section 6.8 NO SOLICITATION. (a) The Company will immediately cease
any existing discussions or negotiations with any third parties conducted
prior to the date hereof with respect to any Acquisition Proposal (as
defined below). The Company shall not, directly or indirectly, through any
officer, director, employee, representative or agent or any of its
subsidiaries, (i) solicit, initiate, continue or encourage any inquiries,
proposals or offers that constitute an inquiry, proposal or offer relating
to an amalgamation, merger, consolidation, business combination, sale of
substantial assets, sale of shares of capital stock (including, without
limitation, by way of a tender offer) or similar transactions involving the
Company or any of its subsidiaries, other than the transactions
contemplated by this Agreement (any of the foregoing inquiries or proposals
being referred to in this Agreement as an "Acquisition Proposal"), (ii)
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solicit, initiate, continue or engage in negotiations or discussions
concerning, or provide any non-public information or data to any person or
entity relating to, any Acquisition Proposal, or (iii) agree to, approve or
recommend any Acquisition Proposal; PROVIDED, that nothing contained in
this Section 6.8 shall prevent the Company from (A) prior to the purchase
by Subsidiary of Shares pursuant to the Offer, furnishing non-public
information or data to, or entering into discussions or negotiations with,
any person in connection with an unsolicited bona fide written Acquisition
Proposal by such person or recommending an unsolicited bona fide written
Acquisition Proposal to the shareholders of the Company, if and only to the
extent that (1) the Board determines in good faith, based upon the written
advice of its independent financial advisors, that such Acquisition
Proposal would, if consummated, result in a transaction more favorable to
the Company's shareholders from a financial point of view than the
transactions contemplated by this Agreement and the Board determines in
good faith, based upon the written advice of independent legal counsel,
that such action is required for the discharge of their fiduciary duties to
shareholders under applicable law, (2) prior to furnishing such non-public
information to, or entering into discussions or negotiations with, such
person, the Company receives from such person an executed confidentiality
agreement with terms no less favorable to the Company than those contained
in the Confidentiality Agreement dated February 22, 1998 between Parent and
the Company and (3) prior to furnishing such non-public information to such
person, the Company delivers to Parent a copy of all such information
concurrently with its delivery to the requesting party; or (B) complying
with Rule 14e-2 promulgated under the Exchange Act with regard to an
Acquisition Proposal. If the Board determines in good faith that any
Acquisition Proposal constitutes a Superior Proposal (as defined below),
the Board shall promptly give written notice, specifying the identity of
the other party and the structure and material terms of such Superior
Proposal (a "Notice of Superior Proposal"), to Parent. The Board may
(subject to the following sentences of this subsection and compliance with
Section 8.1(e) and Section 8.2(a)), to the extent the Board determines in
good faith based upon written advice of independent legal counsel to be
necessary in order to comply with their fiduciary duties under applicable
law, approve or recommend any such Superior Proposal, approve or authorize
the Company's entering into an agreement with respect to such Superior
Proposal, approve or authorize the Company's entering into an agreement
with respect to such Superior Proposal, approve the solicitation of
additional takeover or other investment proposals or terminate this
Agreement, in each case at any time after the fifth business day following
delivery to Parent of the Notice of Superior Proposal. The Company may
take any of the foregoing actions pursuant to the preceding sentence only
if an Acquisition Proposal that was a Superior Proposal at the time of
delivery of a Notice of Superior Proposal continues to be a Superior
Proposal in light of any improved transaction proposed by Parent prior to
the expiration of the five business day period specified in the preceding
sentence. For purposes of this Agreement, a "Superior Proposal" means any
bona fide proposal for an Acquisition Proposal that the Board determines in
their good faith reasonable judgment based on the written advice of its
financial advisors, to be made by a person with the financial ability to
consummate such proposal and to provide greater aggregate value to the
Company and/or the Company's shareholders than the transactions
contemplated by this Agreement or otherwise proposed by Parent as
contemplated above.
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(b) The Company shall notify Parent immediately (and in no event
later than 24 hours) after receipt by the Company of any Acquisition
Proposal or any request for non-public information in connection with an
Acquisition Proposal or for access to the properties, books or records of
the Company by any person or entity that informs the Company that it is
considering making, or has made, an Acquisition Proposal. Such notice
shall be made orally and in writing and shall indicate in reasonable detail
the identity of the offeror and the terms and conditions of such proposal,
inquiry or contract.
Section 6.9 CHIRON LICENSE AGREEMENT. Immediately following the
execution of this Agreement, the Company shall deliver the notice
previously furnished to Parent to Chiron and Ortho pursuant to Clause 27 of
the Agreement dated August 27, 1996 among Chiron Corporation, Johnson &
Johnson/Ortho Diagnostics Systems, Inc. and the Company (the "Chiron/Ortho
Agreement"). From and after the date hereof, the Company shall promptly
notify Parent of and consult with Parent on all contacts or discussions
with any other party to the Chiron/Ortho Agreement. Without the prior
written consent, of Parent, the Company shall not amend, waive, modify,
supplement or otherwise alter any provision of the Chiron/Ortho Agreement,
nor shall the Company offer to enter into or enter into any contract,
agreement, understanding or other arrangement with any person respecting
the Chiron/Ortho Agreement or the subject matter thereof. Without the
prior written consent of Parent under no circumstances shall the Company
propose, negotiate or agree to any "fair value" as that term is described
in Clause 27 of the Chiron/Ortho Agreement except, after consultation with
Parent, as is otherwise specifically required to comply with the
Chiron/Ortho Agreement or required by applicable law. The Company and its
affiliates shall receive and retain respectively, in the Company and, as
the case may be, its affiliates, any and all proceeds of any sale of the
HCV immunoassay business for fair value pursuant to Clause 27 of the
Chiron/Ortho Agreement. No exercise of the option contained in Clause 27
of the Chiron/Ortho Agreement or the sale of HCV immunoassay business
resulting therefrom shall be deemed to be a breach of any representation,
warranty or covenant contained in this Agreement, nor shall any such
exercise be deemed to cause any condition contained in this Agreement or
the Offer to be unsatisfied.
Section 6.10 LITIGATION BETWEEN PARENT AND THE COMPANY. Immediately
after the execution of this Agreement, the parties shall (i) cease to
actively prosecute the litigation between the Company and Parent, described
under the heading "Abbott Litigation" in the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997 (the "Abbott
Litigation") and (ii) ask the court in the Abbott Litigation to stay that
litigation. Promptly after the purchase by Subsidiary of Shares pursuant
to the Offer, the Company and Parent shall take all steps necessary to
dismiss with prejudice the Abbott Litigation.
Section 6.11 RIGHTS PLAN. Unless this Agreement and the Shareholder
Agreements have terminated without the purchase or acquisition by Parent or
one of its Subsidiaries of Shares pursuant to one or both of those
agreements, the Company shall not amend or modify its Rights Plan in a
manner that would in any way nullify or conflict with the Rights Plan
Amendments and Determinations, and shall not adopt any new shareholder
rights plan or agreement or similar agreement, plan or measure that would
nullify or conflict with the Rights Plan Amendments and
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Determinations have an adverse effect on Parent, Subsidiary or any of their
subsidiaries if Parent, Subsidiary or any of their subsidiaries purchase or
acquire, or propose to purchase or acquire, any securities of the Company
or enters into any agreement requiring or permitting the purchase or
acquisition of any securities of the Company. Promptly after the date
hereof, the Company shall deliver the certificate required by Section
5.5(d) of the Rights Plan respecting the Rights Plan Amendments and
Determinations to the Rights Agent (as defined in the Rights Plan).
Section 6.12 POST-OPTION EXERCISE. If this Agreement has been
terminated and Parent or any of its subsidiaries have purchased any Shares
pursuant to any Shareholder Agreement: (a) Parent and Subsidiary shall for
six months following such purchase use reasonable best efforts to
consummate the Amalgamation on essentially the same terms and conditions
provided herein, except that the conditions to Closing in Sections 7.1(d),
7.2 and 7.3 shall be deemed to be waived; and (b) if, despite the
transaction contemplated by (a) above, the Amalgamation is not effected,
Parent agrees that it and its affiliates shall not, for three (3) years
following the purchase of Shares pursuant to any Shareholder Agreement,
acquire Beneficial Ownership of any Shares at less than the Per Share
Amount (as adjusted for stock splits and similar events); PROVIDED,
HOWEVER, that the restrictions of this Section 6.12(b) shall not apply to
the acquisition of less than two percent of the outstanding Shares by
pension plans or similar fiduciary entities of Parent.
ARTICLE VII
CONDITIONS TO THE COMPLETION OF THE ACQUISITION
Section 7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
COMPLETION OF THE ACQUISITION. The respective obligations of each party
hereto to effect the Completion of the Acquisition is subject to the
satisfaction at or prior to the Effective Time of the following conditions:
(a) if required by applicable law, the Amalgamation shall have
been approved by the affirmative vote of the shareholders of the Company by
the requisite vote in accordance with applicable law and any court approval
required for the Amalgamation shall have been obtained;
(b) there shall not be in effect any order, decree or ruling or
other action restraining, enjoining or otherwise prohibiting the Completion
of the Acquisition, which order, decree, ruling or action shall have been
issued or taken by any court of competent jurisdiction or other
governmental body located or having jurisdiction within the United States,
Canada, Germany, the United Kingdom, the European Union or any other
country or economic region in which the Company or any of its subsidiaries
or Parent or any of its affiliates, directly or indirectly, has material
assets or operations;
-36-
(c) (i) any waiting period applicable to the Completion of the
Acquisition under the HSR Act, the Canadian Competition Act or the Investment
Canada Act or any applicable requirements of any laws or regulations relating to
the regulation of monopolies or competition in Germany shall have terminated or
expired and (ii) the Office of Fair Trading has indicated, in terms satisfactory
to the Parent and Subsidiary, that it is not the intention of the Secretary of
State for Trade and Industry to refer the proposed acquisition of the Company,
or any matter arising therefrom which directly affects the Parent, Subsidiary or
the Company, to the Monopolies and Mergers Commission and;
(d) Subsidiary shall have purchased Shares pursuant to the Offer.
Section 7.2 CONDITIONS TO THE OBLIGATION OF PARENT AND SUBSIDIARY TO
EFFECT THE COMPLETION OF THE ACQUISITION. The obligations of Parent and
Subsidiary to effect the Completion of the Acquisition are subject to the
satisfaction or waiver by Parent at or prior to the Effective Time of the
following further conditions:
(a) The Company shall have performed in all material respects its
covenants, agreements and obligations in Articles I, II and III up to the
Effective Time; and
(b) Unless Subsidiary shall have purchased Shares pursuant to the
Offer and except as otherwise contemplated by this Agreement, the
representations and warranties of the Company contained in this Agreement which
are qualified as to materiality shall be true and correct and those which are
not so qualified shall be true and correct in all material respects, in each
case, as of the date when made and at and as of the Closing as though newly made
at and as of that time.
Section 7.3 CONDITIONS TO THE OBLIGATION OF THE COMPANY TO EFFECT THE
COMPLETION OF THE ACQUISITION. The obligations of the Company to effect the
Completion of the Acquisition are subject to the satisfaction or waiver by the
Company at or prior to the Effective Time of the following further condition:
(a) Parent and Subsidiary shall have performed in all material
respects their respective covenants, agreements and obligations under Articles
I, II and III up to the Effective Time.
ARTICLE VIII
TERMINATION; EXPENSES; AMENDMENT; WAIVER
Section 8.1 TERMINATION. This Agreement may be terminated and the Offer
and the Completion of the Acquisition may be abandoned, notwithstanding approval
thereof by the shareholders of the Company:
-37-
(a) at any time prior to the Consummation of the Offer by mutual
written consent of Parent, Subsidiary and the Company;
(b) at any time prior to the Effective Time by Parent or the Company
if any court of competent jurisdiction or other governmental body located or
having jurisdiction within or over the United States, Canada, the European
Union, Germany, the United Kingdom or any other country or economic region in
which the Company or any of its subsidiaries or Parent or any of its affiliates,
directly or indirectly, has material assets or operations, shall have issued an
order, decree or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the Offer or the Completion of the Acquisition and such
order, decree, ruling or other action shall have become final and nonappealable;
(c) by Parent or the Company at any time on or after August 31, 1998
if Subsidiary shall not have purchased any Shares pursuant to the Offer;
PROVIDED, that the right to terminate this Agreement under the foregoing shall
not be available to any party whose failure to fulfill any obligation under this
Agreement has been the cause or resulted in such failure to purchase;
(d) by Parent prior to the purchase by Subsidiary of Shares pursuant
to the Offer, if (i) there shall have been a breach of any representation or
warranty of the Company contained herein which would reasonably be expected to
materially and adversely affect the expected benefits for Parent of the
transactions contemplated hereunder or prevent the consummation of the Offer or
the Completion of the Acquisition or (ii) there shall have been a breach of any
covenant or agreement of the Company contained herein which would reasonably be
expected to materially and adversely affect the expected benefits for Parent of
the transactions contemplated hereunder or prevent the consummation of the Offer
or the Completion of the Acquisition and which, in the case of either (i) or
(ii) above, if curable, shall not have been cured prior to ten business days
following notice of such breach;
(e) prior to the purchase of Shares pursuant to the Offer and no
earlier than five business days after the receipt by Parent of a Notice of
Superior Proposal, if the Superior Proposal described in such Notice of Superior
Proposal continues to be a Superior Proposal in light of any transaction
proposed by Parent prior to the expiration of the fifth business day after the
receipt by Parent of such Notice of Superior Proposal, by the Company if the
Company's directors determine in good faith, based upon the written advice of
its independent financial advisors, that such Acquisition Proposal would, if
consummated, result in a transaction more favorable to the Company's
shareholders from a financial point of view than the transactions contemplated
by this Agreement and the Company's directors determine in good faith, based
upon the written advice of independent legal counsel, that such action is
required for the discharge of their fiduciary duties to shareholders under
applicable law;
(f) at any time prior to the Consummation of the Offer by Parent if
the Board shall have withdrawn or modified in a manner adverse to Parent or
Subsidiary its approval of the Offer, this Agreement, the Completion of the
Acquisition, its recommendation that the
-38-
Company's shareholders accept the Offer or the Company shall have entered into
an agreement providing for an Acquisition Proposal or the Board shall have
resolved to do any of the foregoing; or
(g) by the Company prior to the purchase by Subsidiary of Shares
pursuant to the Offer, if (i) there shall have been a breach of any
representation or warranty of Parent or Subsidiary contained herein which would
reasonably be expected to materially and adversely affect the expected benefits
for the Company's shareholders of the transactions contemplated hereunder or
prevent the consummation of the Offer or the Completion of the Acquisition or
(ii) there shall have been a breach of any covenant or agreement of Parent or
Subsidiary contained herein which would reasonably be expected to materially and
adversely affect the expected benefits for the Company's shareholders of the
transactions contemplated hereunder or prevent the consummation of the Offer or
the Completion of the Acquisition and which, in the case of either (i) and (ii)
above, if curable, shall not have been cured prior to ten business days
following notice of such breach.
Section 8.2 EFFECT OF TERMINATION. (a) If this Agreement is terminated
pursuant to (i) Section 8.1(c) due to a failure to satisfy the Minimum Condition
at any time after any person has made an Acquisition Proposal and, within twelve
months of the date of such termination, the Company enters into a definitive
agreement relating to an Acquisition Proposal at a price per Share that exceeds
the Per Share Amount with any person, (ii) Section 8.1(d), (iii) Section 8.1(e)
or (iv) Section 8.1(f), the Company shall pay Parent a non-refundable fee
ofU.S.$10 million plus expenses of U.S.$2 million (except for a termination
under Section 8.1(d), in which case only expenses of U.S.$2 million shall be
payable) U.S.$10 million plus expenses of U.S.$2 million (except for a
termination under Section 8.1(d), in which case only expenses of U.S.$2 million
shall be payable), which amounts shall be payable, in the case of Section
8.2(a)(i) above, by wire transfer of same day funds within two business days
after the date the Company enters into any such definitive agreement and, in the
case of Sections 8.2(a)(ii), 8.2(a)(iii) or 8.2(a)(iv) above, by wire transfer
of same day funds within two business days after this Agreement is so
terminated. In the event of the circumstances described in this Section 8.2(a)
and upon the timely payment of such non-refundable fee and/or expenses, such
non-refundable fee and/or expenses shall be Parent's and Subsidiary's sole and
exclusive remedy for any breach of any representation, warranty or covenant
hereunder by the Company.
(b) In the event of the termination of this Agreement pursuant to
Section 8.1, this Agreement shall forthwith become void and have no effect,
other than provisions of this Section 8.2 and Section 8.3 (and, only if Parent
or any of its subsidiaries have purchased Shares pursuant to the Shareholder
Agreements, the representations and warranties about the Rights Plan Amendments
and Determinations in Section 1.2 and the provisions of Section 6.11 and 6.12),
which shall survive the termination of this Agreement; PROVIDED, HOWEVER, that
no termination of this Agreement and nothing contained in this Section 8.2(b)
shall relieve any party from liability for any breach of this Agreement.
-39-
Section 8.3 FEES AND EXPENSES. Subject to Section 8.2(a) above, each
party shall bear its own expenses and costs in connection with this Agreement
and the transactions contemplated hereby.
Section 8.4 AMENDMENT. Subject to Section 1.3(c), this Agreement may be
amended by action taken by the Company, Parent and Subsidiary at any time before
or after adoption of the Amalgamation by the shareholders of the Company (if
required by applicable law) but, after any such approval, no amendment shall be
made which decreases the Per Share Price or changes the form thereof or which
adversely affects the rights of the Company's shareholders hereunder without the
approval of such shareholders. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 8.5 EXTENSION; WAIVER. Subject to Section 1.3(c), at any time
prior to the Effective Time, the Company, on the one hand, and Parent and
Subsidiary, on the other hand, may (i) extend the time for the performance of
any of the obligations or other acts of the other party, (ii) waive any
inaccuracies in the representations and warranties of the other party contained
herein or in any document, certificate or writing delivered pursuant hereto, or
(iii) waive compliance by the other party with any of the agreements or
conditions contained herein. Any agreement on the part of any party hereto to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party. The failure of any party hereto to
assert any of its rights hereunder shall not constitute a waiver of such rights.
ARTICLE IX
MISCELLANEOUS
Section 9.1 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made herein shall not survive beyond the
consummation of the Offer. The covenants and agreements herein shall survive in
accordance with their respective terms, including, but not limited to Section
6.5.
Section 9.2 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement, the
Shareholder Agreements and the Confidentiality Agreement between Parent and the
Company dated February 22, 1998 (i) constitute the entire agreement among the
parties hereto with respect to the subject matter hereof and supersede 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; PROVIDED that Subsidiary may assign its rights
and obligations in whole or in part to Parent or any subsidiary of Parent with
prior written notice to the Company, but no such assignment shall relieve
Subsidiary of its obligations hereunder if such assignee does not perform such
obligations.
Section 9.3 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given
-40-
upon receipt) by delivery in person, by facsimile or by registered or certified
mail (postage prepaid, return receipt requested), to the other party as follows:
if to Parent or Subsidiary:
Abbott Laboratories
100 Abbott Park Road
Abbott Park, Illinois 60064-3500
Attn: President Diagnostics Division
-41-
with copies to:
Abbott Laboratories
100 Abbott Park Road
Abbott Park, Illinois 60064-3500
Attn: Divisional Vice President,
Domestic Legal Operations (D-322)
if to the Company:
International Murex Technologies Corporation
2255 B. Queen Street, East, Suite 828
Toronto, ON M4E 1G3
Attn: President
with a copy to:
Reid & Priest LLP
40 West 57th Street
New York, NY 10019-4097
Attention: Bruce Rich
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
Section 9.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the state of Illinois, without regard
to the principles of conflict of laws thereof.
Section 9.5 PARTIES IN INTEREST. Except for Section 6.5, which shall
inure to the benefit of the persons identified therein, this Agreement shall be
binding upon and inure solely to the benefit of each party hereto and its
successors and permitted assigns, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
Section 9.6 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 9.7 SEVERABILITY. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity and enforceability of the other provisions hereof. If
any provision of this Agreement, or the
-42-
application thereof to any person or entity or any circumstance, is invalid or
unenforceable, (a) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid and unenforceable provision and (b) the
remainder of this Agreement and the application of such provision to other
persons, entities or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
Section 9.8 DESCRIPTIVE HEADINGS. The descriptive headings 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.
Section 9.9 CERTAIN DEFINITIONS. For purposes of this Agreement, the
term:
"affiliate" of a person means a person that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common
control with, the first mentioned person;
"Amalco" means the corporation that is a wholly-owned indirect or direct
subsidiary of Parent and continuing as a result of the Amalgamation.
"associate" of a person means a corporation or organization of which such
person is an officer or partner or is, directly or indirectly, the beneficial
owner of 10 percent or more of any class of equity securities or any person who
is a director or officer of such person or any of its parents or subsidiaries;
"Beneficial Ownership" has the meaning set forth in Rule 13d-3 under the
Exchange Act, excluding for these purposes the 60-day exercise and/or conversion
limitation therein.
"BC Act" means the COMPANY ACT (British Columbia), RSBC 1996, c. 62.
"business day" shall mean any day other than a Saturday, Sunday or U.S.
(or, if applicable under the context, Canadian) federal holiday.
"Cleanup" means all actions required to: (1) cleanup, remove, treat or
remediate Hazardous Materials in the indoor or outdoor environment; (2) prevent
the Release of Hazardous Materials so that they do not migrate, endanger or
threaten to endanger public health or welfare of the indoor or outdoor
environment; (3) perform pre-remedial studies and investigations and
post-remedial monitoring and care; or (4) respond to any government requests for
information or documents in any way relating to cleanup, removal, treatment or
remediation or potential cleanup, removal, treatment or remediation of Hazardous
Materials in the indoor or outdoor environment.
-43-
"control" (including the terms "controlled by" and "under common control
with") means the possession, directly or indirectly or as trustee or executor,
of the power to direct or cause the direction of the management policies of a
person, whether through the ownership of stock, as trustee or executor, by
contract or credit arrangement or otherwise;
"Effective Time" means (i) in the case of the Compulsory Acquisition, such
time as all outstanding Shares are owned, directly or indirectly, by Parent or
Subsidiary, and (ii) in the case of the Amalgamation, the time at which a
certificate of amalgamation is issued by the British Columbia Registrar of
Companies.
"Environmental Claim" means any claim, action, cause of action,
investigation or notice (written or oral) by any person or entity alleging
potential liability (including, without limitation, potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from (a) the presence, or Release into the indoor
or outdoor environment, of any Hazardous Materials at any location, whether or
not owned or operated by the Company or any of its subsidiaries or (b)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law.
"Environmental Laws" means all federal, state, local and foreign laws and
regulations relating to pollution or protection of human health or the
environment, including without limitation, laws relating to Releases or
threatened Releases of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, Release,
disposal, transport or handling of Hazardous Materials and all laws and
regulations with regard to recordkeeping, notification, disclosure and reporting
requirements respecting Hazardous Materials.
"ESPP" means the International Murex Technologies Corporation Amended and
Restated Employee Stock Purchase Plan.
"Hazardous Materials" means all substances defined as Hazardous Substances,
Oils, Pollutants or Contaminants in the National Oil and Hazardous Substances
Pollution Contingency Plan, 40 C.F.R. Section 300.5, or defined as such by, or
regulated as such under, and Environmental Law, or which otherwise may be the
basis for any federal, state, local or foreign government requiring cleanup,
removal, treatment or remediation.
"generally accepted accounting principles" shall mean the generally
accepted accounting principles set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession in the United
States, in each case applied on a basis consistent with the manner in which the
audited financial statements for the fiscal year of the Company ended December
31, 1997 were prepared;
-44-
"knowledge" means actual knowledge of an executive officer of the Company
after reasonable inquiry;
"Legal Requirement" means any statute, treaty ordinance, code, law, rule,
regulation, order or other requirement, standard or procedure enacted, adopted
or applied by any Governmental Entity, as well as any judicial decisions
applying common law or interpreting any other Legal Requirement and/or any
agreement entered into with a Governmental Entity in resolution of a dispute or
otherwise.
"Permitted Liens" means (i) Liens specifically disclosed in the SEC Reports
filed prior to the date hereof, (ii) Liens for Taxes, assessments and other
governmental charges not yet due and payable, (iii) immaterial mechanics',
workmen's, repairmen's, warehousemen's, carriers' or other like Liens arising or
incurred in the ordinary course of business, (iv) easements, quasi-easements,
licenses, covenants, rights-of-way, and other similar restrictions, in each
case, which are a matter of public record, (v) any conditions that would be
apparent during a physical inspection, (vi) zoning, building and other similar
restrictions and (vii) other Liens which, individually or in the aggregate,
would not and would not reasonably be expected to have a Material Adverse
Effect.
"person" means an individual, corporation, partnership, association, trust,
unincorporated organization, other entity or group (as defined in Section
13(d)(3) of the Exchange Act); and
"Proxy Statement" means the proxy or information statement or similar
materials distributed to the Company's shareholders in connection with the
Amalgamation, including any amendments or supplements thereto.
"Release" means any release, spill, emission, discharge, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment (including, without limitation, ambient air,
surface water, groundwater and land surface or subsurface strata) or into or out
of any property, including the movement of Hazardous Materials through or in the
air, soil, surface water, groundwater or property.
"Rights Plan" means the Shareholder Protection Rights Agreement dated
August 31, 1995 between the Company and The Bank of New York.
"Shareholder Agreements" mean the letter agreements dated as of the date
hereof among Parent and Edward J. DeBartolo, Jr., The Estate of Edward J.
DeBartolo, University of Notre Dame, Robert Cusick and Michael Warren.
"subsidiary" or "subsidiaries" of any person means any corporation,
partnership, joint venture or other legal entity of which such person (either
alone or through or together with any other subsidiary), owns, directly or
indirectly, 50% or more of the stock or other equity interests the holder of
which is generally entitled to vote for the election of the board of directors
or other governing body of such corporation, partnership, joint venture or other
legal entity. For the
-45-
purposes hereof, wholly-owned subsidiaries shall include subsidiaries of a
person the only shares not owned by such person are statutory qualifying shares.
Section 9.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
-46-
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its representatives thereunto duly authorized, all as
of the day and year first above written.
INTERNATIONAL MUREX TECHNOLOGIES
CORPORATION
By: /s/ F. Michael P. Warren
---------------------------------------
Name: F. Michael P. Warren
Title: Chairman
By: /s/ C. Robert Cusick
---------------------------------------
Name: C. Robert Cusick
Title: President
ABBOTT LABORATORIES
By: /s/ Miles D. White
---------------------------------------
Name: Miles D. White
Title: Executive Vice President
AAC ACQUISITION LTD.
By: /s/ Thomas D. Brown
---------------------------------------
Name: Thomas D. Brown
Title: Vice President
ANNEX A
OFFER CONDITIONS
The capitalized terms used in this Annex A have the meanings set forth in
the attached Agreement, except that the term "Acquisition Agreement" shall be
deemed to refer to the attached Agreement and the term "Commission" shall be
deemed to refer to the SEC.
Notwithstanding any other provision of the Offer, Subsidiary shall not be
required to accept for payment or, subject to any applicable rules and
regulations of the Commission, including without limitation, Rule 14e-1(c) under
the Exchange Act (relating to Subsidiary's obligation to pay for or return
Shares promptly after termination or withdrawal of the Offer), pay for any
Shares tendered pursuant to the Offer, and may postpone the acceptance for
payment or, subject to the restriction referred to above, payment for any Shares
tendered pursuant to the Offer, and may terminate or amend the Offer and not
accept for payment any Shares, if (i) the Minimum Condition shall not have been
satisfied, (ii) any applicable waiting period under the HSR Act, the Canadian
Competition Act, the Investment Canada Act, any applicable requirements of any
laws or regulations relating to the regulation of monopolies or competition in
Germany or any applicable requirements of the United Kingdom Fair Trading Act
shall not have expired or been terminated, (iii) any other material applicable
approval, permit, authorization, consent or waiting period of any domestic,
foreign or supranational governmental, administrative or regulatory agency
located or having jurisdiction within the United States or any other country or
economic region in which the Company or any of its subsidiaries or Parent or any
of its subsidiaries, directly or indirectly, has material assets or operations,
shall not have been obtained or satisfied on terms satisfactory to Parent in its
reasonable discretion; PROVIDED, that prior to August 31, 1998, Subsidiary shall
not terminate the Offer by reason of the nonsatisfaction of any of the
conditions set forth in clauses (ii) or (iii) above or in paragraphs (a) or (b)
below if such nonsatisfaction is curable and shall extend the Offer (it being
understood that this proviso shall not prohibit Subsidiary from terminating the
Offer or failing to extend the Offer by reason of the nonsatisfaction of any
other condition of the Offer), or (iv) at any time on or after March 20, 1998
and prior to the acceptance for payment of Shares, any of the following
conditions occurs or has occurred or Subsidiary makes a good faith determination
that any of the following conditions has occurred:
(a) there shall have been any action or proceeding brought by any
governmental authority before any court, or any order or preliminary or
permanent injunction entered in any action or proceeding before any court or
governmental, administrative or regulatory authority or agency, located or
having jurisdiction within the United States or any other country or economic
region in which the Company or any of its subsidiaries or Parent or any of its
subsidiaries, directly or indirectly, has material assets or operations, or any
other action taken, proposed or threatened, or statute, rule, regulation,
legislation, interpretation, judgment or order proposed, sought, enacted,
entered, enforced, promulgated, amended, issued or deemed applicable to
Subsidiary, the Company or any subsidiary or affiliate of Subsidiary or the
-i-
Company or the Offer, the Completion of the Acquisition or the transactions
contemplated by the Acquisition Agreement, by any legislative body, court,
government or governmental, administrative or regulatory authority or agency
located or having jurisdiction within the United States or any other country or
economic region in which the Company or any of its subsidiaries or Parent or any
of its subsidiaries, directly or indirectly, has material assets or operations,
which could reasonably be expected to have a Material Adverse Effect or to have
the effect of: (i) making illegal, or otherwise directly or indirectly
restraining or prohibiting the making of the Offer, the acceptance for payment
of, payment for, or ownership, directly or indirectly, of some of or all the
Shares by Parent or Subsidiary, the consummation of any of the transactions
contemplated by the Acquisition Agreement or materially delaying the Completion
of the Acquisition; (ii) prohibiting or materially limiting the ownership or
operation by the Company or any of its subsidiaries, or by Parent or any of its
subsidiaries, of all or any material portion of the business or assets of the
Company or any of its subsidiaries or Parent or any of its subsidiaries, or
compelling Subsidiary, Parent or any of Parent's subsidiaries to dispose of or
hold separate all or any material portion of the business or assets of the
Company or any of its subsidiaries or Parent or any of its subsidiaries, as a
result of the transactions contemplated by the Acquisition Agreement; (iii)
imposing or confirming limitations on the ability of Subsidiary, Parent or any
of Parent's subsidiaries effectively to acquire or hold or to exercise full
rights of ownership of Shares, including, without limitation, the right to vote
any Shares on all matters properly presented to the shareholders of the Company,
including, without limitation, the adoption and approval of the Acquisition
Agreement and the Completion of the Acquisition or the right to vote any shares
of capital stock of any subsidiary of the Company; or (iv) requiring divestiture
by Parent or Subsidiary, directly or indirectly, of any Shares; or
(b) there shall have occurred (i) any general suspension of trading
in, or limitation on prices for, securities on any securities exchange or in the
over-the-counter market in the United States, (ii) the declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States (whether or not mandatory), (iii) any limitation (whether or not
mandatory), by any United States governmental authority or agency on the
extension of credit by banks or other financial institutions, or (iv) in the
case of any of the situations described in clauses (i) through (iii) inclusive,
existing as of the date of the Acquisition Agreement or at the date of the
commencement of the Offer, a material acceleration or worsening thereof; or
(c) there shall have occurred or be occurring, or Subsidiary shall
have become aware of any event or condition that would reasonably be expected to
have a Material Adverse Effect; or
(d) the Company shall have breached or failed to perform in any
material respect any of its covenants or agreements under the Acquisition
Agreement and, if curable, shall have failed to cure such breach within ten
business days of receipt of notice of such breach or failure to perform; or
-ii-
(e) any of the representations and warranties of the Company set
forth in the Acquisition Agreement that are qualified as to materiality shall
not be true and correct or any of the representations and warranties of the
Company set forth in the Acquisition Agreement that are not so qualified shall
not be true and correct in any material respect, in each case as if such
representations and warranties were made at the time of such determination (or,
in the case of any representation and warranty made as of a specified date, as
of such date) and if curable, shall have failed to cure such failure to be true
and correct within ten business days of receipt of notice of such failure to be
true and correct; or
(f) the Acquisition Agreement shall have been terminated in
accordance with its terms; or
(g) the Board shall have withdrawn or modified in a manner adverse to
Subsidiary its approval or recommendation of the Offer, the Acquisition
Agreement or the Consummation of the Acquisition or shall have recommended, or
the Company shall have entered into an agreement providing for, a Superior
Proposal, or the Board shall have resolved to do any of the foregoing; or
(h) the Company shall have failed to adopt the Rights Plan Amendment
and Determinations or shall have failed to comply with Section 6.11 of the
Agreement;
which, in the reasonable judgment of Subsidiary in any such case, and regardless
of the circumstances (including any action or omission by Subsidiary) giving
rise to any such condition makes it inadvisable to proceed with such acceptance
for payment or payments of Shares.
The foregoing conditions are for the sole benefit of Subsidiary and
may be asserted by Subsidiary regardless of the circumstances giving rise to any
such condition or may be waived by Subsidiary in whole or in part at any time or
from time to time in its sole discretion. The failure by Subsidiary at any time
to exercise any of the foregoing rights shall not be deemed a waiver of any such
right, the waiver of any such right with respect to particular facts or
circumstances shall not be deemed a waiver with respect to any other facts or
circumstances, and each such right shall be deemed an ongoing right that may be
asserted at any time or from time to time.
-iii-
DONALDSON, LUFKIN & JENRETTE
Donaldson, Lufkin & Jenrette Securities Corporation
2121 Avenue of the Stars, Suite 3000, Los Angeles, CA 90067-5014
(310) 282-6161
February 22, 1998
Abbott Laboratories
100 Abbott Park Rd.
Abbott Park, IL 60064-3500
Gentlemen:
In connection with your consideration of a possible negotiated
transaction by you or one or more of your affiliates (as the term "affiliate"
is defined in the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), involving International Murex Technologies Corporation and its
affiliates (collectively, the "Company") (a "Transaction"), the Company,
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"), acting as the
Company's exclusive financial advisor in connection with the proposed
Transaction, and their respective advisors and agents are prepared to make
available to you certain information which is non-public, confidential or
proprietary in nature.
By execution of this letter agreement (the "Agreement"), you agree to
treat confidentially all such information disclosed hereunder in writing (or,
if initially disclosed orally, promptly thereafter confirmed in writing) (the
"Evaluation Material"), and to observe the terms and conditions set forth
herein. You also agree that, subject to the fourth paragraph of this letter,
prior to giving any of your directors, officers, employees, partners,
affiliates, agents, advisors or representatives (hereinafter,
"Representatives") access to any of the Evaluation Material, you shall inform
such representatives of the confidential nature of the Evaluation Material
and the obligations as set forth in this Agreement.
For purposes of this Agreement, Evaluation Material shall include,
without limitation, all information, data, reports, analyses, compilations,
studies, interpretations, projections, forecasts, records, and other materials
(whether prepared by the Company, DLJ or otherwise and in whatever form
maintained, whether documentary, computerized or otherwise), regardless of
the form of communication, that contain or otherwise reflect information
concerning the Company that you or your Representatives may be provided by or
on behalf of the Company or DLJ in the course of your evaluation of a
possible Transaction. The term "Evaluation Material" shall also include all
information, data, reports, analyses, computations, studies, interpretations,
projections, forecasts, records, notes, memoranda, summaries or other
materials in whatever form maintained, whether documentary, computerized or
otherwise, whether prepared by you or your Representatives or others, that
contain or otherwise reflect or are based upon, in whole or in part, any such
Evaluation Material or that reflect your review of, or interest in, all or
any portion of the Company in contemplation of a Transaction (the "Notes").
This Agreement shall be inoperative as to those particular portions of the
Evaluation Material that (i) were or become generally available to the public
other than as result of a disclosure by you or any of your Representatives,
(ii) were available to you on a non-confidential basis prior to the
disclosure of such Evaluation Material to you pursuant to this Agreement,
provided that the source of such information was not known by you or any of
Abbott Laboratories
Page 2 February 22, 1998
your Representatives to be bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to the Company
or any of its affiliates with respect to such material or (iii) become
available to you on a non-confidential basis from a source other than the
Company or its agents, advisors or representatives provided that the source
of such information was not known by you or any of your Representatives to be
bound by a confidentiality agreement with or other contractual, legal or
fiduciary obligation of confidentiality to the Company or any of its
affiliates with respect to such material.
You agree that you will not use the Evaluation Material for any purpose
other than determining whether you wish to enter into a Transaction and
evaluating any possible terms thereof. You agree for a period of two years
from the date hereof not to disclose or allow disclosure to others of any
Evaluation Material except with the specific prior written consent of the
Company or except as expressly otherwise permitted by the terms of this
Agreement; provided that, subject to the second paragraph of this Agreement,
you may disclose Evaluation Material to your Representatives to the extent
necessary to permit such Representatives to assist you in making the
determination referred to in the prior sentence. You shall take all
reasonable measures (including but not limited to court proceedings), at your
sole expense, to restrain your Representatives from prohibited or
unauthorized disclosure or use of the Evaluation Material. In furtherance of
the foregoing, you agree that you will not use the Evaluation Material in any
way detrimental to the Company. In particular, the Company and you agree that
for a period of 12 months from the date of the signing of this Agreement
neither you and your affiliates nor the Company and its affiliates will
knowingly, as a result of knowledge or information obtained from the
Evaluation Material or otherwise in connection with a possible Transaction,
employ or attempt to employ or divert an employee of the other party or any
of its affiliates with whom such party has had significant contact in
connection with the Transaction.
Except as otherwise permitted by this Agreement, you agree that you will
not make any disclosure (i) that you, DLJ or the Company are having or have
had discussions, or that you have received Evaluation Material from the
Company or DLJ concerning a Transaction, (ii) that you are considering a
possible Transaction or (iii) concerning any discussions related to a
possible Transaction, including the status thereof, any termination thereof,
any decision on your part to no longer consider any such Transaction or any
of the terms, conditions or other facts with respect thereto.
Correspondingly, the Company agrees that it will not make any disclosure (i)
that it has had or is having discussions with, or that it has sent Evaluation
Material to, you regarding a Transaction, (ii) that it is considering a
possible Transaction with you or (iii) concerning any discussion related to a
possible Transaction with you, including the status thereof, any termination
thereof, any decision on its part to no longer consider any such Transaction
with you or any of the terms, conditions or other facts with respect thereto.
Notwithstanding the foregoing, either party may make such disclosure if such
party has received the opinion of its counsel that such disclosure must be
made by it in order that it not commit a violation of law and, prior to such
disclosure, it promptly advises and consults with the other party and its
legal counsel concerning the information it proposes to disclose. Without
limiting the generality of the foregoing, if (1) you have been afforded a
reasonable opportunity to complete a reasonable due diligence investigation
of the Company in connections with your making a proposal at or before 9:00
am Eastern Standard Time March 3, 1998 (an "Initial Proposal") respecting a
possible Transaction; and (2) following such investigation, you have had a
reasonable opportunity to formulate and make an Initial Proposal to the
Company respecting a possible Transaction, then you further agree that,
without the prior written consent of the Company,
Abbott Laboratories
Page 3 February 22, 1998
you will not, directly or indirectly, enter into any agreement, arrangement
or understanding with any person regarding a possible Transaction involving
the Company or any of its affiliates other than any such agreements,
arrangements or understandings with any of your Representatives. The term
"person" as used in this letter shall be broadly interpreted to include,
without limitation, the media and any corporation, partnership, group,
individual or other entity.
Although the Company and DLJ have endeavored to include in the
Evaluation Material information known to them which they believe to be
relevant for the purpose of your investigation, you understand and agree that
none of the Company, DLJ or any of their affiliates, agents, advisors or
representatives (i) have made or make any representation or warranty,
expressed implied, as to the accuracy or completeness of the Evaluation
Material or (ii) shall have any liability whatsoever to you or your
Representatives relating to or resulting from the use of the Evaluation
Material or any errors therein or omissions therefrom, except in each case as
may be made in a definitive agreement.
Without limiting the generality of the immediately preceding paragraph,
the Evaluation Material may include certain statements, estimates and
projections provided by the Company with respect to the anticipated future
performance of the Company's business. Such statements, estimates and
projections reflect various assumptions made by the Company concerning
anticipated results, which assumptions may or may not prove to be correct. No
representations are made as to the accuracy of such assumptions, statements,
estimates or projections, including the budget. The only information that
will have any legal effect will be specifically represented in a definitive
purchase agreement; in no event will such definitive agreement contain any
representation as to the projections.
In the event that you or anyone to whom you transmit any Evaluation
Material in accordance with this Agreement are requested or required (by
deposition, interrogations, requests for information or documents in legal
proceedings, subpoenas, civil investigative demand or similar process), in
connection with any proceeding, to disclose any Evaluation Material, you will
give the Company prompt notice of such request or requirement so that the
Company may seek an appropriate protective order or other remedy and/or waive
compliance with the provisions of this Agreement, and you will reasonably
cooperate with the Company, at the Company's expense, to obtain such
protective order. In the event that such protective order or other remedy is
not obtained or the Company waives compliance with the relevant provisions of
this Agreement, you (or such other persons to whom such request is directed)
will furnish only that portion of the Evaluation Material which is legally
required to be disclosed. It is further agreed that, if in the absence of a
protective order you (or such other persons to whom such request is directed)
are nonetheless legally compelled to disclose such information, you may make
such disclosure without liability hereunder, provided that you give the
Company notice of the information to be disclosed as far in advance of its
disclosure as is practicable and, upon the Company's request, use your
reasonable best efforts to obtain assurances that confidential treatment will
be accorded to such information and, provided further, that such disclosure
was not caused by and did not result from a previous disclosure by you or any
of your Representatives not permitted hereunder.
If you decide at any time that you do not wish to proceed with a
Transaction, you will promptly notify the Chairman of the Company's Board of
Directors, the Company's Chief Executive Officer (the "CEO") or DLJ of that
decision. In that case, or if the Company shall elect at any time
Abbott Laboratories
Page 4 February 22, 1998
to terminate further access by you to the Evaluation Material for any reason,
you will promptly return to DLJ all Evaluation Material (and all copies
thereof) in the possession of you or your affiliates or your Representatives
and will destroy all Notes, provided, that you may retain in your Legal
Division for archival purposes one (1) copy of the Evaluation Material and
Notes. Notwithstanding the return or destruction of Evaluation Material and
Notes, you and your Representatives will continue to be bound by your
obligations of confidentiality and other obligations hereunder.
You hereby acknowledge that you are aware that the securities laws of
the United States prohibit any person who has material, non-public
information concerning the Company or a possible Transaction involving the
Company from purchasing or selling securities in reliance upon such
information or from communicating such information to any other person or
entity under circumstances in which it is reasonably foreseeable that such
person or entity is likely to purchase or sell such securities in reliance
upon such information. Further, you hereby represent that you have no direct
or indirect ownership interests in the Company other than any such ownership
interest which may exist through a retirement trust.
You agree that, if (1) you have been afforded a reasonable opportunity
to complete a reasonable due diligence investigation of the Company in
connection with your making an Initial Proposal respecting a possible
Transaction; and (2) following such investigation, you have had a reasonable
opportunity to formulate and make an Initial Proposal to the Company
respecting a possible Transaction, then for a period of six (6) months from
the date of this Agreement, unless such shall have been specifically invited
in writing by the current Board of Directors or replacements designated by
members of the current Board of Directors of the Company, neither you nor any
of your Representatives will in any manner, directly or indirectly, (a) effect
or seek, offer or propose to effect, or cause or participate in or in any way
assist or act as advisor to any other person to effect or seek, offer or
propose to effect or participate in, (i) any acquisition of any securities
(or beneficial ownership thereof) or assets of the Company or any of its
subsidiaries; (ii) any tender or exchange offer or merger or other business
combination involving the Company or any of its subsidiaries; (iii) any
recapitalization, restructuring, liquidation, dissolution or other
extraordinary transaction with repsect to the Company or any of its
subsidiaries; or (iv) any "solicitation" of "proxies" (as such terms are used
in the proxy rules of the Securities and Exchange Commission) or consents to
vote any voting securities of the Company, (b) otherwise act, alone or in
concert with others, to seek to control or influence the management, Board of
Directors or policies of the Company or (c) enter into any discussions or
arrangements with any third party with respect to any of the foregoing;
provided, however, that nothing contained in this Agreement shall prohibit
you from making an Initial Proposal respecting a possible Transaction; and
provided further, that, if (A) you shall have made an Initial Proposal to the
Company regarding a possible Transaction; and (B) the Company's Board of
Directors does not determine, in its sole discretion, in good faith that such
Initial Proposal was unreasonable when made (and thereafter notify you in
writing of such determination), nothing contained in this Agreement shall
prohibit you or your Representatives from making any proposal to the Chairman
of the Company's Board of Directors, the Company's CEO, the Company's Board
of Directors or DLJ regarding any business combination or other Transaction
involving the Company. You also agree during any such period not to request
the Company (or its directors, officers, employees or agents), directly or
indirectly, to amend or waive any provision of this paragraph (including this
sentence). Notwithstanding the foregoing, this paragraph shall not apply,
directly or
Abbott Laboratories
Page 5 February 22, 1998
indirectly, to (1) any employee benefit, pension or welfare plan, trust or
similar arrangement of yours or of any of your Representatives which is not
under your control, or (2) any indirect activity of any Representative over
which such Representative does not have substantial control.
You understand that (i) the Company and DLJ shall conduct the process for
a possible Transaction as they in their sole discretion shall determine
(including, without limitation, negotiating with any prospective buyer and
entering into definitive agreements without prior notice to you or any other
person), (ii) any procedures relating to such a Transaction may be changed at
any time without notice to you or any other person, (iii) the Company shall
have the right to reject or accept any potential buyer, proposal or offer,
for any reason whatsoever, in its sole discretion, and (iv) notwithstanding
the terms of this Agreement, neither you nor any of your Representatives
shall have any claims whatsoever against the Company or DLJ or any of their
respective directors, officers, stockholders, owners, affiliates or agents
arising out of or relating to the Transaction, and neither the Company nor
DLJ shall have any claims whatsoever against you or any of your
Representatives arising out of or relating to the Transaction (other than
those against the parties to a definitive agreement with you in accordance
with the terms thereof).
It is further understood and agreed that DLJ will arrange for appropriate
contacts for due diligence purposes. It is also understood and agreed that
all (i) communications regarding a possible Transaction, (ii) requests for
additional information, (iii) requests for facility tours or management
meetings and (iv) discussions or questions regarding procedures, will be
submitted or directed to DLJ or the Company's CEO or Chairman of the Board,
and that none of you or your Representatives who are aware of the Evaluation
Material and/or the possibility of a Transaction will initiate or cause to be
initiated any communication with any other director, officer or employee of
the Company concerning the Evaluation Material or a Transaction. It is
understood that any expenses incurred by you in connection with such
diligence activities shall be for your own account and at your own expense,
and at no expense to the Company.
You agree that unless and until a definitive agreement between the
Company and you with respect to any Transaction has been executed and
delivered, neither the Company nor you will be under any legal obligation of
any kind whatsoever with respect to such Transaction. Furthermore, it is
agreed that neither you nor the Company has any obligation to negotiate the
Transaction for any specified period of time or to enter into a definitive
agreement.
The parties hereto agree that money damages would not be a sufficient
remedy for any breach of this Agreement, that in addition to all other
remedies each party shall be entitled to specific performance and injunctive
or other equitable relief as a remedy for any such breach. In the event of
litigation relating to this Agreement, if a court of competent jurisdiction
determines that any party has breached this Agreement, such party shall be
liable and pay to the other party the reasonable legal fees incurred by the
other party in connection with such litigation, including any appeal
therefrom.
The Company reserves the right to assign its rights, powers and
privileges under this Agreement (including, without limitation, the right to
enforce the terms of this letter agreement) to any person who enters into a
Transaction.
Abbott Laboratories
Page 6 February 22, 1998
This Agreement constitutes the entire agreement regarding the subject
matter hereof. All modifications of, waivers of and amendments to this
Agreement or any part hereof must be in writing signed on behalf of you and
the Company or by you and DLJ, as agent for the Company. You acknowledge that
the Company is intended to be benefited by this Agreement and that the Company
shall be entitled, either alone or together with DLJ, to enforce this
Agreement and to obtain for itself the benefit of any remedies that may be
available for the breach hereof.
It is further understood and agreed that no failure or delay by you or
the Company in exercising any right, power or privilege under this Agreement
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise of any right, power or
privilege hereunder.
In the event that any provision or portion of this Agreement is
determined to be invalid or unenforceable for any reason, in whole or in
part, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
applicable law.
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without regard to
conflicts of laws provisions. This Agreement is for the benefit of you and
the Company and your and its respective directors, officers, employees and
agents.
Abbott Laboratories
Page 7 February 22, 1998
If you are in agreement with the foregoing, please so indicate by
signing, dating and returning one copy of this Agreement, which will
constitute our agreement with respect to the matters set forth herein.
Very truly yours,
INTERNATIONAL MUREX
TECHNOLOGIES CORPORATION
By: /s/ Chet Mehta
---------------------
Chet Mehta
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
as Exclusive Agent
Agreed and Accepted:
ABBOTT LABORATORIES
By: /s/ Thomas D. Brown
-----------------------------------
Title: Corp V.P. Commercial Operations
-----------------------------------
Date: 2/22/98
-----------------------------------
Abbott Laboratories
100 Abbott Park Road
Abbott Park, Illinois
March 13, 1998
Edward J. DeBartolo, Jr.
Dear Mr. DeBartolo:
This letter is to confirm our agreement regarding all of the 2,533,450
common shares, without par value, (the "Shares") of International Murex
Technologies Corporation, a British Columbia corporation (the "Company") held by
you. In order to induce Abbott Laboratories, an Illinois corporation ("Buyer")
to enter into an Acquisition Agreement, to be dated as of the date hereof
between the Company and Buyer (the "Acquisition Agreement"), you hereby agree as
follows:
Subject to the terms and conditions hereof, on or prior to the expiration
date of the tender offer to be commenced by Buyer pursuant to the Acquisition
Agreement (the "Tender Offer"), you will tender to Buyer, or cause to be
tendered, all of the Shares, regardless of whether a higher offer for such
Shares has been made. If you withdraw your tender of Shares in the Tender
Offer, you shall immediately, but in no event later than the expiration date of
the Tender Offer re-tender such Shares to Buyer.
You hereby grant to Buyer the option (the "Option") to purchase any or all
the Shares, at a price of at least of $13.00 per Share, until the date (the
"Expiration Date") that is: (i) the date the Acquisition Agreement is terminated
in accordance with its terms, unless such termination is an Applicable
Termination (as defined below), in which case the Option shall continue as
provided in the following clause (ii); or (ii) after an Applicable Termination,
the date that is the later of (A) five business days following an Applicable
Termination and (B) two business days following the receipt by Buyer of any of
the governmental consents or approvals or the termination or expiration of any
waiting periods referred to in Section 4.4(b)(ii), (iii), (iv) and (v) of the
Acquisition Agreement; PROVIDED, HOWEVER, in no event shall the Option be
exercisable after August 31, 1998. An "Applicable Termination" shall mean any
termination of the Acquisition Agreement pursuant to Sections 8.1(d), 8.1(e) or
8.1(f) thereof.
You hereby agree not to sell, transfer or encumber the Shares (except in
the Tender Offer or to Buyer) during the term of this letter agreement.
You hereby represent and warrant as to the Shares that (i) you are the sole
owner of and have full right, power and authority to sell and vote the Shares,
or if you are not the sole owner, you have the full right, power and authority
to sell the Shares, and in either event, this letter agreement is a valid and
binding agreement, enforceable against you, in accordance with its terms; (ii)
neither the execution of this letter agreement nor the consummation by you of
the transactions contemplated hereby will constitute a violation of, or conflict
with, or default under,
any contract, commitment, agreement, understanding, arrangement or restriction
of any kind to which you are a party or by which you or the Shares are bound;
and (iii) Buyer or its subsidiary shall upon purchase of the Shares receive good
and marketable title to the Shares, free and clear of all liens, claims,
encumbrances and security interests of any kind.
Buyer hereby represents and warrants that it has the corporate power and it
is duly authorized to enter into this letter agreement.
You hereby agree to vote all of the Shares, and any other common shares of
the Company which you may own, or have the power to vote, (i) in the manner
directed by Buyer with respect to any matters related to the acquisition of the
Company by Buyer and (ii) against any other amalgamations, mergers,
recapitalizations, business combinations, sales of assets, liquidations or
similar transactions involving the Company, or any other matters which would be
inconsistent with Buyer's intended acquisition of the Company. In furtherance
of your voting agreement in this paragraph, you hereby revoke any and all
previous proxies with respect to any of the Shares and grants to Buyer and such
individuals or corporations as Buyer may designate an irrevocable proxy to vote
all of the Shares owned by you in accordance with this paragraph on any matters
which may be presented to shareholders of the Company with respect to any
matters related to the acquisition of the Company by Buyer or any other
amalgamations, mergers, recapitalizations, business combinations, sales of
assets, liquidations or similar transactions involving the Company, or any other
matters which would be inconsistent with Buyer's proposed acquisition of the
Company. In addition, you hereby agree to execute such additional documents as
Buyer may reasonably request to effectuate its voting rights under this
paragraph.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter agreement
and the Acquisition Agreement (i) constitute the entire agreement among the
parties hereto with respect to the subject matter hereof and (ii) supersede all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof. This Agreement is not
intended to confer upon any other person any rights or remedies hereunder.
This letter agreement may be terminated at any time (i) by mutual written
consent of the parties hereto or (ii) by either party on or after the Expiration
Date. Notwithstanding the foregoing, such right of termination shall not be
available to any party whose breach of any obligation hereunder has been the
cause of or resulted in the failure of the transactions contemplated hereunder
to be consummated. No such termination shall relieve any party from liability
for any breach of this letter agreement.
Each party shall be entitled, without prejudice to the rights and remedies
otherwise available to such party, to specific performance of all of the other
party's obligations hereunder. This Agreement shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the State
of Illinois. Each of the parties shall pay its own expenses in connection with
the execution and performance of this letter agreement.
2
If any term, provision, covenant or restriction of this letter agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
letter agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
ABBOTT LABORATORIES
By: /s/ Miles D. White
-----------------------------
Name: Miles D. White
Title: Executive Vice President
Acknowledged and agreed:
/s/ Edward J. DeBartolo, Jr.
- ----------------------------------
Edward J. DeBartolo, Jr.
3
Abbott Laboratories
100 Abbott Park Road
Abbott Park, Illinois
March 13, 1998
Estate of Edward J. DeBartolo
Ladies and Gentlemen:
This letter is to confirm our agreement regarding all of the 1,983,013
common shares, without par value, (the "Shares") of International Murex
Technologies Corporation, a British Columbia corporation (the "Company") held by
you. In order to induce Abbott Laboratories, an Illinois corporation ("Buyer")
to enter into an Acquisition Agreement, to be dated as of the date hereof
between the Company and Buyer (the "Acquisition Agreement"), you hereby agree as
follows:
Subject to the terms and conditions hereof, on or prior to the expiration
date of the tender offer to be commenced by Buyer pursuant to the Acquisition
Agreement (the "Tender Offer"), you will tender to Buyer, or cause to be
tendered, all of the Shares, regardless of whether a higher offer for such
Shares has been made. If you withdraw your tender of Shares in the Tender
Offer, you shall immediately, but in no event later than the expiration date of
the Tender Offer re-tender such Shares to Buyer.
You hereby grant to Buyer the option (the "Option") to purchase any or all
the Shares, at a price of at least $13.00 per Share, until the date (the
"Expiration Date") that is: (i) the date the Acquisition Agreement is terminated
in accordance with its terms, unless such termination is an Applicable
Termination (as defined below), in which case the Option shall continue as
provided in the following clause (ii); or (ii) after an Applicable Termination,
the date that is the later of (A) five business days following an Applicable
Termination and (B) two business days following the receipt by Buyer of any of
the governmental consents or approvals or the termination or expiration of any
waiting periods referred to in Section 4.4(b)(ii), (iii), (iv) and (v) of the
Acquisition Agreement; PROVIDED, HOWEVER, in no event shall the Option be
exercisable after August 31, 1998. An "Applicable Termination" shall mean any
termination of the Acquisition Agreement pursuant to Sections 8.1(d), 8.1(e) or
8.1(f) thereof.
You hereby agree not to sell, transfer or encumber the Shares (except in
the Tender Offer or to Buyer) during the term of this letter agreement.
You hereby represent and warrant as to the Shares that (i) you are the sole
owner of and have full right, power and authority to sell and vote the Shares,
or if you are not the sole owner, you have the full right, power and authority
to sell the Shares, and in either event, this letter agreement is a valid and
binding agreement, enforceable against you, in accordance with its terms; (ii)
neither the execution of this letter agreement nor the consummation by you of
the transactions contemplated hereby will constitute a violation of, or conflict
with, or default under,
any contract, commitment, agreement, understanding, arrangement or restriction
of any kind to which you are a party or by which you or the Shares are bound;
and (iii) Buyer or its subsidiary shall upon purchase of the Shares receive good
and marketable title to the Shares, free and clear of all liens, claims,
encumbrances and security interests of any kind.
Buyer hereby represents and warrants that it has the corporate power and it
is duly authorized to enter into this letter agreement.
You hereby agree to vote all of the Shares, and any other common shares of
the Company which you may own, or have the power to vote, (i) in the manner
directed by Buyer with respect to any matters related to the acquisition of the
Company by Buyer and (ii) against any other amalgamations, mergers,
recapitalizations, business combinations, sales of assets, liquidations or
similar transactions involving the Company, or any other matters which would be
inconsistent with Buyer's intended acquisition of the Company. In furtherance
of your voting agreement in this paragraph, you hereby revoke any and all
previous proxies with respect to any of the Shares and grants to Buyer and such
individuals or corporations as Buyer may designate an irrevocable proxy to vote
all of the Shares owned by you in accordance with this paragraph on any matters
which may be presented to shareholders of the Company with respect to any
matters related to the acquisition of the Company by Buyer or any other
amalgamations, mergers, recapitalizations, business combinations, sales of
assets, liquidations or similar transactions involving the Company, or any other
matters which would be inconsistent with Buyer's proposed acquisition of the
Company. In addition, you hereby agree to execute such additional documents as
Buyer may reasonably request to effectuate its voting rights under this
paragraph.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter agreement
and the Acquisition Agreement (i) constitute the entire agreement among the
parties hereto with respect to the subject matter hereof and (ii) supersede all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof. This Agreement is not
intended to confer upon any other person any rights or remedies hereunder.
This letter agreement may be terminated at any time (i) by mutual written
consent of the parties hereto or (ii) by either party on or after the Expiration
Date. Notwithstanding the foregoing, such right of termination shall not be
available to any party whose breach of any obligation hereunder has been the
cause of or resulted in the failure of the transactions contemplated hereunder
to be consummated. No such termination shall relieve any party from liability
for any breach of this letter agreement.
Each party shall be entitled, without prejudice to the rights and remedies
otherwise available to such party, to specific performance of all of the other
party's obligations hereunder. This Agreement shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the State
of Illinois. Each of the parties shall pay its own expenses in connection with
the execution and performance of this letter agreement.
2
If any term, provision, covenant or restriction of this letter agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
letter agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
ABBOTT LABORATORIES
By: /s/ Miles D. White
--------------------------
Name: Miles D. White
Title: Executive Vice President
Acknowledged and agreed:
ESTATE OF EDWARD J. DEBARTOLO
By: /s/ Edward J. DeBartolo, Jr. By: /s/ Marie Denise DeBartolo York
--------------------------- -------------------------------
Name: Edward J. DeBartolo, Jr. Name: Marie Denise DeBartolo York
Title: Coexecutor Title: Coexecutor
3
Abbott Laboratories
100 Abbott Park Road
Abbott Park, Illinois
March 13, 1998
University of Notre Dame
Grace Hall, Suite 900
Notre Dame, Indiana 46556
Ladies and Gentlemen:
This letter is to confirm our agreement regarding all of the one million
common shares, without par value, (the "Shares") of International Murex
Technologies Corporation, a British Columbia corporation (the "Company") held by
you. In order to induce Abbott Laboratories, an Illinois corporation ("Buyer")
to enter into an Acquisition Agreement, to be dated as of the date hereof
between the Company and Buyer (the "Acquisition Agreement"), you hereby agree as
follows:
Subject to the terms and conditions hereof, on or prior to the expiration
date of the tender offer to be commenced by Buyer pursuant to the Acquisition
Agreement (the "Tender Offer"), you will tender to Buyer, or cause to be
tendered, all of the Shares, regardless of whether a higher offer for such
Shares has been made. If you withdraw your tender of Shares in the Tender
Offer, you shall immediately, but in no event later than the expiration date of
the Tender Offer re-tender such Shares to Buyer.
You hereby grant to Buyer the option (the "Option") to purchase any or all
the Shares, at a price of at least $13.00 per Share, until the date (the
"Expiration Date") that is: (i) the date the Acquisition Agreement is terminated
in accordance with its terms, unless such termination is an Applicable
Termination (as defined below), in which case the Option shall continue as
provided in the following clause (ii); or (ii) after an Applicable Termination,
the date that is the later of (A) five business days following an Applicable
Termination and (B) two business days following the receipt by Buyer of any of
the governmental consents or approvals or the termination or expiration of any
waiting periods referred to in Section 4.4(b)(ii), (iii), (iv) and (v) of the
Acquisition Agreement; PROVIDED, HOWEVER, in no event shall the Option be
exercisable after August 31, 1998. An "Applicable Termination" shall mean any
termination of the Acquisition Agreement pursuant to Sections 8.1(d), 8.1(e) or
8.1(f) thereof.
You hereby agree not to sell, transfer or encumber the Shares (except in
the Tender Offer or to Buyer) during the term of this letter agreement.
You hereby represent and warrant as to the Shares that (i) you are the sole
owner of and have full right, power and authority to sell and vote the Shares,
or if you are not the sole owner, you have the full right, power and authority
to sell the Shares, and in either event, this letter agreement is a valid and
binding agreement, enforceable against you, in accordance with its
terms; (ii) neither the execution of this letter agreement nor the consummation
by you of the transactions contemplated hereby will constitute a violation of,
or conflict with, or default under, any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which you are a party
or by which you or the Shares are bound; and (iii) Buyer or its subsidiary shall
upon purchase of the Shares receive good and marketable title to the Shares,
free and clear of all liens, claims, encumbrances and security interests of any
kind.
Buyer hereby represents and warrants that it has the corporate power and it
is duly authorized to enter into this letter agreement.
You hereby agree to vote all of the Shares, and any other common shares of
the Company which you may own, or have the power to vote, (i) in the manner
directed by Buyer with respect to any matters related to the acquisition of the
Company by Buyer and (ii) against any other amalgamations, mergers,
recapitalizations, business combinations, sales of assets, liquidations or
similar transactions involving the Company, or any other matters which would be
inconsistent with Buyer's intended acquisition of the Company. In furtherance
of your voting agreement in this paragraph, you hereby revoke any and all
previous proxies with respect to any of the Shares and grants to Buyer and such
individuals or corporations as Buyer may designate an irrevocable proxy to vote
all of the Shares owned by you in accordance with this paragraph on any matters
which may be presented to shareholders of the Company with respect to any
matters related to the acquisition of the Company by Buyer or any other
amalgamations, mergers, recapitalizations, business combinations, sales of
assets, liquidations or similar transactions involving the Company, or any other
matters which would be inconsistent with Buyer's proposed acquisition of the
Company. In addition, you hereby agree to execute such additional documents as
Buyer may reasonably request to effectuate its voting rights under this
paragraph.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter
agreement and the Acquisition Agreement (i) constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and
(ii) supersede all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof. This
Agreement is not intended to confer upon any other person any rights or remedies
hereunder.
This letter agreement may be terminated at any time (i) by mutual written
consent of the parties hereto or (ii) by either party on or after the
Expiration Date. Notwithstanding the foregoing, such right of termination shall
not be available to any party whose breach of any obligation hereunder has been
the cause of or resulted in the failure of the transactions contemplated
hereunder to be consummated. No such termination shall relieve any party from
liability for any breach of this letter agreement.
Each party shall be entitled, without prejudice to the rights and remedies
otherwise available to such party, to specific performance of all of the other
party's obligations hereunder. This Agreement shall be governed by and construed
in accordance with the internal laws (and
2
not the law of conflicts) of the State of Illinois. Each of the parties shall
pay its own expenses in connection with the execution and performance of this
letter agreement.
If any term, provision, covenant or restriction of this letter agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
letter agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
ABBOTT LABORATORIES
By: /s/ Miles D. White
-------------------------------
Name: Miles D. White
Title: Executive Vice President
Acknowledged and agreed:
UNIVERSITY OF NOTRE DAME
By: /s/ Dr. William P. Sexton
----------------------------
Name: Dr. William P. Sexton
Title: Vice President for
University Relations
3
Abbott Laboratories
100 Abbott Park Road
Abbott Park, Illinois
March 13, 1998
C. Robert Cusick
Dear Mr. Cusick:
This letter is to confirm our agreement regarding all of the common shares,
without par value, (the "Shares") of International Murex Technologies
Corporation, a British Columbia corporation (the "Company") held by you. In
order to induce Abbott Laboratories, an Illinois corporation ("Buyer") to enter
into an Acquisition Agreement, to be dated as of the date hereof between the
Company and Buyer (the "Acquisition Agreement"), you hereby agree as follows:
Subject to the terms and conditions hereof, on or prior to the expiration
date of the tender offer to be commenced by Buyer pursuant to the Acquisition
Agreement (the "Tender Offer"), you will tender to Buyer, or cause to be
tendered, all of the Shares, regardless of whether a higher offer for such
Shares has been made. If you withdraw your tender of Shares in the Tender
Offer, you shall immediately, but in no event later than the expiration date of
the Tender Offer re-tender such Shares to Buyer.
You hereby grant to Buyer the option (the "Option") to purchase any or all
the Shares, at a price of at least of $13.00 per Share, until the date (the
"Expiration Date") that is: (i) the date the Acquisition Agreement is terminated
in accordance with its terms, unless such termination is an Applicable
Termination (as defined below), in which case the Option shall continue as
provided in the following clause (ii); or (ii) after an Applicable Termination,
the date that is the later of (A) five business days following an Applicable
Termination and (B) two business days following the receipt by Buyer of any of
the governmental consents or approvals or the termination or expiration of any
waiting periods referred to in Section 4.4(b)(ii), (iii), (iv) and (v) of the
Acquisition Agreement; PROVIDED, HOWEVER, in no event shall the Option be
exercisable after August 31, 1998. An "Applicable Termination" shall mean any
termination of the Acquisition Agreement pursuant to Sections 8.1(d), 8.1(e) or
8.1(f) thereof.
You hereby agree not to sell, transfer or encumber the Shares (except in
the Tender Offer or to Buyer) during the term of this letter agreement.
You hereby represent and warrant as to the Shares that (i) you are the sole
owner of and have full right, power and authority to sell and vote the Shares,
or if you are not the sole owner, you have the full right, power and authority
to sell the Shares, and in either event, this letter agreement is a valid and
binding agreement, enforceable against you, in accordance with its terms; (ii)
neither the execution of this letter agreement nor the consummation by you of
the transactions contemplated hereby will constitute a violation of, or conflict
with, or default under, any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to
which you are a party or by which you or the Shares are bound; and (iii) Buyer
or its subsidiary shall upon purchase of the Shares receive good and marketable
title to the Shares, free and clear of all liens, claims, encumbrances and
security interests of any kind.
Buyer hereby represents and warrants that it has the corporate power and it
is duly authorized to enter into this letter agreement.
You hereby agree to vote all of the Shares, and any other common shares of
the Company which you may own, or have the power to vote, (i) in the manner
directed by Buyer with respect to any matters related to the acquisition of the
Company by Buyer and (ii) against any other amalgamations, mergers,
recapitalizations, business combinations, sales of assets, liquidations or
similar transactions involving the Company, or any other matters which would be
inconsistent with Buyer's intended acquisition of the Company. In furtherance
of your voting agreement in this paragraph, you hereby revoke any and all
previous proxies with respect to any of the Shares and grants to Buyer and such
individuals or corporations as Buyer may designate an irrevocable proxy to vote
all of the Shares owned by you in accordance with this paragraph on any matters
which may be presented to shareholders of the Company with respect to any
matters related to the acquisition of the Company by Buyer or any other
amalgamations, mergers, recapitalizations, business combinations, sales of
assets, liquidations or similar transactions involving the Company, or any other
matters which would be inconsistent with Buyer's proposed acquisition of the
Company. In addition, you hereby agree to execute such additional documents as
Buyer may reasonably request to effectuate its voting rights under this
paragraph.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter agreement
and the Acquisition Agreement (i) constitute the entire agreement among the
parties hereto with respect to the subject matter hereof and (ii) supersede all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof. This Agreement is not
intended to confer upon any other person any rights or remedies hereunder.
This letter agreement may be terminated at any time (i) by mutual written
consent of the parties hereto or (ii) by either party on or after the Expiration
Date. Notwithstanding the foregoing, such right of termination shall not be
available to any party whose breach of any obligation hereunder has been the
cause of or resulted in the failure of the transactions contemplated hereunder
to be consummated. No such termination shall relieve any party from liability
for any breach of this letter agreement.
Each party shall be entitled, without prejudice to the rights and remedies
otherwise available to such party, to specific performance of all of the other
party's obligations hereunder. This Agreement shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the State
of Illinois. Each of the parties shall pay its own expenses in connection with
the execution and performance of this letter agreement.
If any term, provision, covenant or restriction of this letter agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
letter agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
ABBOTT LABORATORIES
By: /s/ Miles D. White
--------------------
Name: Miles D. White
Title: Executive Vice President
Acknowledged and agreed:
/s/ C. Robert Cusick
- -----------------------
C. Robert Cusick
Abbott Laboratories
100 Abbott Park Road
Abbott Park, Illinois
March 13, 1998
Michael Warren
Dear Mr. Warren
This letter is to confirm our agreement regarding all of the common shares,
without par value, (the "Shares") of International Murex Technologies
Corporation, a British Columbia corporation (the "Company") held by you. In
order to induce Abbott Laboratories, an Illinois corporation ("Buyer") to enter
into an Acquisition Agreement, to be dated as of the date hereof between the
Company and Buyer (the "Acquisition Agreement"), you hereby agree as follows:
Subject to the terms and conditions hereof, on or prior to the expiration
date of the tender offer to be commenced by Buyer pursuant to the Acquisition
Agreement (the "Tender Offer"), you will tender to Buyer, or cause to be
tendered, all of the Shares, regardless of whether a higher offer for such
Shares has been made. If you withdraw your tender of Shares in the Tender
Offer, you shall immediately, but in no event later than the expiration date of
the Tender Offer re-tender such Shares to Buyer.
You hereby grant to Buyer the option (the "Option") to purchase any or all
the Shares, at a price of at least of $13.00 per Share, until the date (the
"Expiration Date") that is: (i) the date the Acquisition Agreement is terminated
in accordance with its terms, unless such termination is an Applicable
Termination (as defined below), in which case the Option shall continue as
provided in the following clause (ii); or (ii) after an Applicable Termination,
the date that is the later of (A) five business days following an Applicable
Termination and (B) two business days following the receipt by Buyer of any of
the governmental consents or approvals or the termination or expiration of any
waiting periods referred to in Section 4.4(b)(ii), (iii), (iv) and (v) of the
Acquisition Agreement; PROVIDED, HOWEVER, in no event shall the Option be
exercisable after August 31, 1998. An "Applicable Termination" shall mean any
termination of the Acquisition Agreement pursuant to Sections 8.1(d), 8.1(e) or
8.1(f) thereof.
You hereby agree not to sell, transfer or encumber the Shares (except in
the Tender Offer or to Buyer) during the term of this letter agreement.
You hereby represent and warrant as to the Shares that (i) you are the sole
owner of and have full right, power and authority to sell and vote the Shares,
or if you are not the sole owner, you have the full right, power and authority
to sell the Shares, and in either event, this letter agreement is a valid and
binding agreement, enforceable against you, in accordance with its terms; (ii)
neither the execution of this letter agreement nor the consummation by you of
the transactions contemplated hereby will constitute a violation of, or conflict
with, or default under, any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to
which you are a party or by which you or the Shares are bound; and (iii) Buyer
or its subsidiary shall upon purchase of the Shares receive good and marketable
title to the Shares, free and clear of all liens, claims, encumbrances and
security interests of any kind.
Buyer hereby represents and warrants that it has the corporate power and it
is duly authorized to enter into this letter agreement.
You hereby agree to vote all of the Shares, and any other common shares of
the Company which you may own, or have the power to vote, (i) in the manner
directed by Buyer with respect to any matters related to the acquisition of the
Company by Buyer and (ii) against any other amalgamations, mergers,
recapitalizations, business combinations, sales of assets, liquidations or
similar transactions involving the Company, or any other matters which would be
inconsistent with Buyer's intended acquisition of the Company. In furtherance
of your voting agreement in this paragraph, you hereby revoke any and all
previous proxies with respect to any of the Shares and grants to Buyer and such
individuals or corporations as Buyer may designate an irrevocable proxy to vote
all of the Shares owned by you in accordance with this paragraph on any matters
which may be presented to shareholders of the Company with respect to any
matters related to the acquisition of the Company by Buyer or any other
amalgamations, mergers, recapitalizations, business combinations, sales of
assets, liquidations or similar transactions involving the Company, or any other
matters which would be inconsistent with Buyer's proposed acquisition of the
Company. In addition, you hereby agree to execute such additional documents as
Buyer may reasonably request to effectuate its voting rights under this
paragraph.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter agreement
and the Acquisition Agreement (i) constitute the entire agreement among the
parties hereto with respect to the subject matter hereof and (ii) supersede all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof. This Agreement is not
intended to confer upon any other person any rights or remedies hereunder.
This letter agreement may be terminated at any time (i) by mutual written
consent of the parties hereto or (ii) by either party on or after the Expiration
Date. Notwithstanding the foregoing, such right of termination shall not be
available to any party whose breach of any obligation hereunder has been the
cause of or resulted in the failure of the transactions contemplated hereunder
to be consummated. No such termination shall relieve any party from liability
for any breach of this letter agreement.
Each party shall be entitled, without prejudice to the rights and remedies
otherwise available to such party, to specific performance of all of the other
party's obligations hereunder. This Agreement shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the State
of Illinois. Each of the parties shall pay its own expenses in connection with
the execution and performance of this letter agreement.
If any term, provision, covenant or restriction of this letter agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
letter agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
ABBOTT LABORATORIES
By: /s/ Miles D. White
---------------------
Name: Miles D. White
Title: Executive Vice President
Acknowledged and agreed:
/s/ F. Michael P. Warren
- ----------------------------
F. Michael P. Warren
[CITIBANK GLOBAL ASSET MANAGEMENT LETTERHEAD]
March 13, 1998
Mr. C. Robert Cusick
Vice Chairman, Chief Executive Officer & President
International Murex Technologies Corporation
2255 B. Queen Street East
Suite 828
Toronto, Ontario M4E1G3
Dear Mr. Cusick:
In our capacity as Investment Advisor of the Citinvest Value Investment
Portfolio (VIP) Selector (the "Fund"), we agree to tender all of the shares
of International Murex Technologies Corporation held by the Fund in a tender
offer to be made by Abbott Laboratories Inc. for the shares of IMTC at a
price of $13.00 per share. This Agreement expires on the earlier date of the
expiration of the termination of the Acquisition Agreement or May 15, 1998.
Yours faithfully,
/s/ Farhan Sharaff
Citibank, N.A.
Exhibit 99.3
[ORACLE PARTNERS, L.P. LETTERHEAD]
March 13, 1998
Mr. C. Robert Cusick
Vice Chairman, Chief Executive Officer & President
International Murex Technologies Corporation
2255 B. Queen Street East
Suite 828
Toronto, Ontario M4E1G3
Dear Mr. Cusick:
In consideration of our discussion of March 12, 1998, we agree to tender all
866,500 of our shares in a definitive tender offer to be made by Abbott
Laboratories, Inc. for the shares of International Murex Technologies at a
price of no less than $13.00 per share. This agreement expires on the earlier
date of the expiration of the termination of the acquisition agreement or May
15, 1998.
Sincerely,
/s/ Larry N. Feinberg
Larry N. Feinberg
AMENDMENT TO RIGHTS PLAN
This Amendment is made as of the 13th day of March 1998 by and between
International Murex Technologies Corporation, a British Columbia company (the
"Company") and The Bank of New York, as Rights Agent (the "Rights Agent").
RECITALS
A. The Company has adopted that certain Shareholder Protection Rights
Agreement (the "Rights Plan") by and between the Company and the Rights Agent
dated August 31, 1995 (all capitalized terms used and not defined herein shall
be as defined in the Rights Plan, as amended herein);
B. Pursuant to Section 5.5(d) of the Rights Plan, the President of the
Company has executed and delivered to the Rights Agent a certificate which
states that the proposed amendments to the Rights Plan set forth herein are in
compliance with the terms of Section 5.5 of the Rights Plan;
C. Pursuant to an Acquisition Agreement dated as of March 13, 1998 (the
"Acquisition Agreement"), Abbott Laboratories, an Illinois corporation
("Parent") and AAC Acquisition Ltd., a British Columbia company shall acquire
the Company;
D. Parent and certain shareholders of the Company have entered into
agreements under which such shareholders shall sell their Voting Shares of the
Company to Parent in furtherance of the Acquisition Agreement;
E. The Company and the Rights Agent wish to enter into this Amendment in
furtherance thereof.
AMENDMENT
NOW, THEREFORE, for good and valid consideration, the receipt and
sufficiency of which are acknowledged, the parties amend the Rights Plan as
follows:
1. The introductory clause of the definition of "Acquiring Person" set forth
in Section 1.1(a) is amended in its entirety as follows:
""Acquiring Person" means any Person who, together with all Affiliates
and Associates of such Person, is the Beneficial Owner of 20% or more
of the then outstanding Voting Shares, (1) excluding Abbott
Laboratories, an Illinois corporation ("Parent"), AAC Acquisition
Ltd., a British Columbia company ("Purchaser") and their Subsidiaries,
(2) but shall not include:"
2. The definition of "Separation Time" set forth in Section 1.1(ar) is amended
to insert the following text immediately preceding the period concluding
the definition:
"; and
(C) the Separation Time shall not occur by virtue of (w) the
execution of the Acquisition Agreement by and among the
Corporation, Parent and Purchaser, (x) the execution of the
agreements referenced in the Acquisition Agreement by and between
Parent and certain shareholders to sell their Voting Shares to
Parent, (y) the consummation of the transactions contemplated or
permitted thereunder or (z) the acquisition or purchase of Voting
Shares by Parent, Purchaser or their Subsidiaries"
IN WITNESS WHEREOF, all parties have executed and delivered this Amendment
as of the date first written above.
INTERNATIONAL MUREX
TECHNOLOGIES CORPORATION
By: /s/ C. Robert Cusick
---------------------------
Name: C. Robert Cusick
Title: President
THE BANK OF NEW YORK,
as Rights Agent
By:
---------------------------
Name:
--------------------------
Title:
------------------------
