Quarterly Report — Form 10-Q
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-Q 10-Q for the Quarter Ended March 31, 1994 14 56K
2: EX-2 Exhibit 2 Agreement and Plan of Merger 63 236K
3: EX-10 Exhibit 10 Revolving Credit Agreement 37 92K
4: EX-20 Exhibit 20 Press Release Dated May 4, 1994 4 12K
5: EX-99 Exhibit 99(A) Stock Option Agreement 13 38K
6: EX-99 Exhibit 99(B) Stock Option Agreement 13 39K
EX-99 — Exhibit 99(A) Stock Option Agreement
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EXHIBIT 99(A)
CONFORMED COPY
STOCK OPTION AGREEMENT dated as of
May 3, 1994, among NATIONAL HEALTH
LABORATORIES INCORPORATED, a Delaware
corporation ("Parent"), N ACQUISITION CORP.,
a Delaware corporation (the "Purchaser"), and
WARBURG, PINCUS CAPITAL COMPANY, L.P., a
Delaware limited partnership (the
"Stockholder").
WHEREAS Parent, the Purchaser and Allied Clinical
Laboratories, Inc., a Delaware corporation (the "Company"),
propose to enter into an Agreement and Plan of Merger of
even date herewith (the "Merger Agreement") providing for
the making of a cash tender offer (the "Offer") by the
Purchaser for shares of Common Stock, par value $.01 per
share, of the Company (the "Common Stock") and the merger of
the Company and the Purchaser (the "Merger");
WHEREAS the Stockholder owns in the aggregate
2,504,042 shares of Common Stock (the "Optioned Shares");
and
WHEREAS, as a condition to their willingness to
enter into the Merger Agreement, Parent and the Purchaser
have required that the Stockholder agree to grant the
Purchaser an irrevocable option, as set forth herein, to
purchase all the Optioned Shares;
NOW, THEREFORE, to induce Parent and the Purchaser
to enter into, and in consideration of their entering into,
the Merger Agreement, and in consideration of the premises
and the representations, warranties and agreements herein
contained, the parties agree as follows:
1. Grant of Option. The Stockholder hereby
grants the Purchaser an irrevocable option (the "Option") to
purchase for $23 per share in cash (the "Per Share Price")
all the Optioned Shares. The Option shall not become
exercisable and shall expire on May 10, 1994, if the Offer
is not commenced by May 10, 1994 for any reason other than
that referred to in clause (i) below. The Option shall
expire (if not theretofore exercised) (i) if the Offer is
not commenced by May 10, 1994, as a result of the failure of
any of the conditions set forth in paragraphs (a) through
(h) of Exhibit A to the Merger Agreement, on June 9, 1994,
or (ii) if the Offer is so commenced, 30 trading
days following termination of the Offer, whether or not
shares of Common Stock shall have been accepted for payment
by the Purchaser (or Parent or any other person who is
authorized by Parent) pursuant to the Offer; provided that,
if the Option cannot be exercised on any such date because
the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (the "HSR Act") with respect to the
exercise of the Option shall not have expired or been
terminated or because of any injunction, order or similar
restraint by a court of competent jurisdiction, the Option
shall expire on the fifth trading day after such waiting
period shall have expired or been terminated or such
injunction, order or restraint shall have been dissolved or
when such injunction, order or restraint shall have become
permanent and no longer subject to appeal, as the case may
be. A "trading day" shall be any date on which the New York
Stock Exchange shall be open for business.
2. Exercise of Option.
(a) Provided that (i) the waiting period under
the HSR Act with respect to the exercise of the Option shall
have expired or been terminated and (ii)(A) as a result of
the failure of any of the conditions set forth in
paragraphs (a) through (h) of Exhibit A to the Merger
Agreement, the Purchaser shall have failed to commence the
Offer by May 10, 1994, or (B) the Offer, having been so
commenced, has been terminated, whether or not shares of
Common Stock shall have been accepted for payment by the
Purchaser (or Parent or any other Person who is authorized
by Parent) pursuant to the Offer, then the Purchaser may
exercise the Option at any time in whole prior to the
expiration of the Option. In the event that the Purchaser
wishes to exercise the Option, the Purchaser shall do so by
giving written notice (the date of such notice being herein
called the "Notice Date") to the Stockholder specifying the
place, time and date not earlier than two trading days, nor
later than 10 trading days, from the Notice Date for the
closing of the purchase by the Purchaser pursuant to such
exercise.
(b) In the event that any share of Common Stock
is accepted for payment and paid for by the Purchaser (or
Parent or any other person who is authorized by Parent)
pursuant to the Offer, the Purchaser shall be obligated to
exercise the Option in whole (with respect to the Optioned
Shares not theretofore accepted for payment and paid for
pursuant to the Offer) no later than five trading days
following the date of such payment; provided, however, that
if the waiting period under the HSR Act with respect to the
exercise of the Option shall not have expired or been
terminated or any injunction, order or similar restraint by
a court of competent jurisdiction shall exist, in each case
on such fifth trading day, then, notwithstanding the
foregoing, the Purchaser shall be obligated to exercise the
Option in whole not later than five trading days after such
waiting period shall have expired or been terminated or such
injunction, order or restraint shall have been dissolved.
3. Payment of Purchase Price and Delivery of
Certificates for Optioned Shares. At any closing of the
exercise of the Option hereunder, (i) the Purchaser will
deliver to the Stockholder a certified or official bank
check payable to the order of the Stockholder in New York
Clearing House funds in an amount equal to the product of
the Per Share Price and the number of Optioned Shares being
purchased at such closing and (ii) the Stockholder shall
deliver to the Purchaser certificates representing the
Optioned Shares sold by the Stockholder to the Purchaser at
such closing, duly endorsed in blank or accompanied by stock
powers duly executed by the Stockholder in blank, in proper
form for transfer.
4. Representations and Warranties of the
Stockholder. The Stockholder hereby represents and warrants
to Parent and the Purchaser as follows:
(a) Authority; Noncontravention. The Stockholder
has all requisite power and authority to enter into
this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of
this Agreement by the Stockholder and the consummation
by the Stockholder of the transactions contemplated
hereby have, in the case of each Stockholder that is
not a natural person, been duly authorized by all
necessary partnership action on the part of the
Stockholder. This Agreement has been duly executed and
delivered by the Stockholder and constitutes a valid
and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms.
The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of, or
default (with or without notice or lapse of time or
both) under (i) with respect to Stockholders that are
not natural persons, the certificate of incorporation
or by-laws or any other comparable charter or
organizational documents of the Stockholder or (ii) any
provision of any trust agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession,
franchise, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to the
Stockholder or to the Stockholder's property or assets,
other than, in the case of clause (ii), any such
conflicts, violations, defaults, rights or liens that
individually or in the aggregate would not (x) impair
the ability of the Stockholder to perform its
obligations under this Agreement or (y) prevent the
consummation of any of the transactions contemplated by
this Agreement. No consent, approval, order or
authorization of, or registration, declaration or
filing with, any Federal, state or local government or
any court, administrative or regulatory agency or
commission or other governmental authority or agency,
domestic or foreign (a "Governmental Entity"), is
required by or with respect to the Stockholder in
connection with the execution and delivery of this
Agreement or the consummation by the Stockholder of the
transactions contemplated by this Agreement, except for
(1) the filing with the Securities and Exchange
Commission of such reports under Sections 13(d) and
16(a) of the Securities Exchange Act of 1934, as
amended, as may be required in connection with this
Agreement and the transactions contemplated by this
Agreement and (2) such other consents, approvals,
orders, authorizations, registrations, declarations and
filings as would not individually or in the aggregate
prevent the consummation of any of the transactions
contemplated by this Agreement.
(b) The Optioned Shares. The Stockholder has,
and the transfer by the Stockholder of the Optioned
Shares hereunder will pass to the Purchaser, good and
marketable title to the Optioned Shares, free and clear
of any claims, liens, encumbrances, security interests,
voting restrictions and limitations on disposition
whatsoever. The Stockholder does not directly or
indirectly own, either beneficially or of record, any
shares of Common Stock other than the Optioned Shares.
5. Representations and Warranties of Parent and
the Purchaser. Parent and the Purchaser hereby represent
and warrant to the Stockholder as follows:
(a) Authority; Noncontravention. Parent and the
Purchaser have all requisite corporate power and
authority to enter into this Agreement and to
consummate the transactions contemplated by this
Agreement. The execution and delivery of this
Agreement and the consummation of the transactions
contemplated by this Agreement have been duly
authorized by all necessary corporate action on the
part of Parent and the Purchaser. This Agreement has
been duly executed and delivered by Parent and the
Purchaser and constitutes a valid and binding
obligation of each such party, enforceable against each
such party in accordance with its terms. The execution
and delivery of this Agreement do not, and the
consummation of the transactions contemplated by this
Agreement and compliance with the provisions of this
Agreement will not, conflict with, or result in any
violation of, or default (with or without notice or
lapse of time, or both) under, or give rise to a right
of termination, cancellation or acceleration of any
obligation or to loss of a material benefit under, or
result in the creation of any lien upon any of the
properties or assets of Parent or any of its
subsidiaries under, (i) the certificate of
incorporation or by-laws of Parent or the Purchaser or
the comparable charter or organizational documents of
any other subsidiary of Parent, (ii) any loan or credit
agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession,
franchise or license applicable to Parent or any of its
subsidiaries or their respective properties or assets
or (iii) subject to the governmental filings and other
matters referred to in the following sentence, any
judgment, order, decree, statute, law, ordinance, rule
or regulation applicable to Parent or any of its
subsidiaries or their respective properties or assets,
other than, in the case of clause (ii) or (iii), any
such conflicts, violations, defaults, rights or liens
that individually or in the aggregate would not
(x) have a material adverse effect (as such term is
defined in the Merger Agreement) on Parent, (y) impair
the ability of Parent and the Purchaser to perform
their respective obligations under this Agreement or
(z) prevent the consummation of any of the transactions
contemplated by this Agreement. No consent, approval,
order or authorization of, or registration, declaration
or filing with, any Governmental Entity is required by
or with respect to Parent or any of its subsidiaries in
connection with the execution and delivery of this
Agreement or the consummation by Parent or the
Purchaser of any of the transactions contemplated by
this Agreement, except for (1) filings under the HSR
Act, if applicable, (2) the filing with the Securities
and Exchange Commission of such reports under
Sections 13(a), 13(d) and 16(a) of the Securities
Exchange Act of 1934, as amended, as may be required in
connection with this Agreement and the transactions
contemplated by this Agreement and (3) such other
consents, approvals, orders, authorizations,
registrations, declarations and filings as would not
individually or in the aggregate (A) have a material
adverse effect on Parent or (B) prevent the
consummation of any of the transactions contemplated by
this Agreement.
(b) Securities Act. Any Optioned Shares
purchased by the Purchaser pursuant to this Agreement
will be acquired for investment only and not with a
view to any public distribution thereof, and the
Purchaser will not offer to sell or otherwise dispose
of any Optioned Shares so acquired by it in violation
of any of the registration requirements of the
Securities Act of 1933, as amended.
6. Distributions; Adjustment upon Changes in
Capitalization. (a) Any dividends or other distributions
(whether payable in cash, stock or otherwise) by the Company
with respect to any Optioned Shares purchased hereunder with
a record date on or after the date of the closing of such
purchase will belong to the Purchaser. If any such dividend
or distribution belonging to the Purchaser is paid by the
Company to the Stockholder, the Stockholder shall hold such
dividend or distribution in trust for the benefit of the
Purchaser and shall promptly remit such dividend or
distribution to the Purchaser in exactly the form received,
accompanied by appropriate instruments of transfer.
(b) If on or after the date of this Agreement
there shall occur any stock dividend, stock split,
recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction
of or by the Company, as a result of which shares of any
class of stock, other securities, cash or other property
shall be issued in respect of any Optioned Shares or if any
Optioned Shares shall be changed into the same or a
different number of shares of the same or another class of
stock or other securities, then, upon exercise of the Option
the Purchaser shall receive for the aggregate price payable
upon exercise of the Option with respect to the Optioned
Shares, all such shares of stock, other securities, cash or
other property issued, delivered or received with respect to
such Optioned Shares (or if the Option shall not be
exercised, appropriate adjustment shall be made for purposes
of the calculations set forth in this Agreement).
7. Covenants of the Stockholder.
(a) The Stockholder agrees, until the Option has
expired, not to:
(i) sell, transfer, pledge, assign or otherwise
dispose of, or enter into any contract, option or other
arrangement with respect to the sale, transfer, pledge,
assignment or other disposition of, the Optioned Shares
to any person other than the Purchaser or the
Purchaser's designee;
(ii) acquire any additional shares of Common Stock
without the prior consent of the Purchaser; or
(iii) deposit any Optioned Shares into a voting
trust or grant a proxy or enter into a voting agreement
with respect to any Optioned Shares except as provided
in this Agreement.
(b) The parties hereto agree that, until the
Option has expired, the Stockholder may (and, if requested
to do so in writing by Parent, will) tender the Optioned
Shares in the Offer.
(c) The Stockholder agrees to execute and
deliver, simultaneously with the execution and delivery of
this Agreement, a proxy for the benefit of the Purchaser in
the form of Exhibit A hereto.
8. No Brokers. Each of the Stockholder, Parent
and the Purchaser represents, as to itself and its
affiliates, that no agent, broker, investment banker or
other firm or person is or will be entitled to any broker's
or finder's fees or any other commission or similar fee in
connection with any of the transactions contemplated by this
Agreement and respectively agrees to indemnify and hold the
others harmless from and against any and all claims,
liabilities or obligations with respect to any such fees,
commissions or expenses asserted by any person on the basis
of any act or statement alleged to have occurred or been
made by such party or its affiliates.
9. Survival of Representations. All
representations, warranties and agreements made by the
parties to this Agreement shall survive the closings
hereunder notwithstanding any investigation at any time made
by or on behalf of any party hereto.
10. Further Assurances. If the Purchaser shall
exercise the Option in accordance with the terms of this
Agreement, from time to time and without additional
consideration the Stockholder will execute and deliver, or
cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and
other instruments as the Purchaser may reasonably request
for the purpose of effectively carrying out the transactions
contemplated by this Agreement, including the transfer of
the Optioned Shares to the Purchaser and the release of any
and all liens, claims and encumbrances with respect thereto.
11. Assignment. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be
assigned by any of the parties without the prior written
consent of the other parties, except that the Purchaser may
assign, in its sole discretion, any or all of its rights,
interests and obligations hereunder to Parent or to any
direct or indirect wholly owned subsidiary of Parent.
Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
12. General Provisions.
(a) Specific Performance. The parties hereto
acknowledge that damages would be an inadequate remedy for
any breach of the provisions of this Agreement and agree
that the obligations of the parties hereunder shall be
specifically enforceable.
(b) Expenses. Whether or not the Option is
exercised, all costs and expenses incurred in connection
with the Option, this Agreement and the transactions
contemplated hereby shall be paid by the party incurring
such expense.
(c) Amendments. This Agreement may not be
amended except by an instrument in writing signed by each of
the parties hereto.
(d) Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed given if delivered personally or sent by overnight
courier (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as
shall be specified by like notice):
(i) if to Parent or the Purchaser, to
National Health Laboratories Incorporated
4225 Executive Square
Suite 800
La Jolla, California 92037
Facsimile: (619) 658-6693
Attention: Mr. James R. Maher;
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Facsimile: (212) 474-3700
Attention: Allen Finkelson, Esq., and
(ii) if to the Stockholder, to
Warburg, Pincus Capital Company, L.P.
466 Lexington Avenue
New York, New York 10017
Facsimile: (212) 878-9361
Attention: Mr. James E. Thomas
with a copy to:
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Facsimile: (212) 821-8111
Attention: Bruce R. Kraus, Esq.
(e) Interpretation. When a reference is made in
this Agreement to Sections or Exhibits, such reference shall
be to a Section or Exhibit to this Agreement unless
otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Agreement. Wherever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation".
(f) Counterparts. This Agreement may be executed
in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become
effective when one or more of the counterparts have been
signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign
the same counterpart.
(g) Entire Agreement; No Third-Party
Beneficiaries. This Agreement (including the documents and
instruments referred to herein) (i) constitutes the entire
agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties
with respect to the subject matter hereof and (ii) is not
intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(h) Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Delaware.
IN WITNESS WHEREOF, Parent, the Purchaser and the
Stockholder have caused this Agreement to be signed by their
respective duly authorized representatives, all as of the
date first written above.
NATIONAL HEALTH LABORATORIES
INCORPORATED,
by
/s/James R. Maher
Name: James R. Maher
Title: President and
Chief Executive
Officer
N ACQUISITION CORP.,
by
/s/James R. Maher
Name: James R. Maher
Title: President and
Chief Executive
Officer
WARBURG, PINCUS CAPITAL
COMPANY, L.P.,
by E.M. WARBURG, PINCUS &
CO., General Partner
EXHIBIT A
Proxy
The undersigned hereby irrevocably constitutes and
appoints James R. Maher, David C. Flaugh and James G.
Richmond, and each of them, and any other designees of
N Acquisition Corp., a Delaware corporation (the
"Purchaser"), the attorneys and proxies of the undersigned,
each with full power of substitution, to vote each of the
shares of Common Stock, par value $.01 per share, of Allied
Clinical Laboratories, Inc., a Delaware corporation (the
"Company"), owned by the undersigned (the "Shares") (and any
and all other securities or rights issued or issuable in
respect of such Shares on or after May 3, 1994) at any
annual, special or adjourned meeting of the stockholders of
the Company, (i) in favor of the adoption of the Merger
Agreement dated as of May 3, 1994 (the "Merger Agreement"),
among the Company, the Purchaser and National Health
Laboratories Incorporated, a Delaware corporation
("Parent"), and approval of the Merger (as defined in the
Merger Agreement) and the other transactions contemplated by
the Merger Agreement, (ii) against any takeover proposal (as
defined in the Merger Agreement) (other than the Merger) and
against any other action or agreement that would result in a
breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the
Merger Agreement or which could result in any of the
conditions to the Company's obligations under the Merger
Agreement not being fulfilled and (iii) in favor of any
other matter relating to consummation of the transactions
contemplated by the Merger Agreement. This appointment is
effective upon the execution of, and only until the
expiration of the option granted pursuant to, the Stock
Option Agreement dated as of May 3, 1994, among Parent, the
Purchaser and the undersigned. This power of attorney and
proxy is irrevocable, is granted in consideration of the
Purchaser entering into the Merger Agreement and is coupled
with an interest sufficient in law to support an irrevocable
power. This appointment shall revoke all prior attorneys
and proxies appointed by the undersigned at any time with
respect to such Shares (and any such other securities or
rights) and no subsequent attorneys or proxies will be
appointed by the undersigned, or be effective, with
respective thereto.
Dated: May 3, 1994 WARBURG, PINCUS CAPITAL
COMPANY, L.P.,
by E.M. WARBURG, PINCUS &
CO., General Partner
Dates Referenced Herein
| Referenced-On Page |
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| This ‘10-Q’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| | 6/9/94 | | 1 | | | | | None on these Dates |
| Filed on: | | 5/10/94 | | 1 | | 2 |
| | 5/3/94 | | 1 | | 13 |
| For Period End: | | 3/31/94 |
| List all Filings |
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