General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 21± 87K
2: EX-1 Underwriting Agreement 61± 255K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 29± 120K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 34± 121K
5: EX-4 Instrument Defining the Rights of Security Holders 10± 35K
EX-4 — Instrument Defining the Rights of Security Holders
Exhibit 4
CONFORMED COPY
SHARING AND CALL OPTION AGREEMENT
dated as of
December 13, 1994
among
HLR Holdings Inc.,
Mafco Holdings Inc.
and
National Health Care Group, Inc.
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS
1.1. Certain Definitions...................................... 1
1.2. Expenses................................................. 2
ARTICLE 2
SHARING PAYMENTS
2.1. Sharing Payments to HLR.................................. 2
ARTICLE 3
VOTING OF STOCKHOLDER SHARES FOR THE MERGER
3.1. No Sale of Stockholder Shares Prior to Effective Time.... 3
3.2. Voting of Stockholder Shares............................. 3
ARTICLE 4
CALL RIGHTS
4.1. Call Right with Respect to Stockholder Shares............ 3
4.2. Closing with Respect to Exercise of Call Right........... 4
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
5.1. Valid Title.............................................. 4
5.2. Authority; Binding Effect................................ 4
5.3. Governmental Authorization............................... 5
5.4. Non-Contravention........................................ 5
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF HLR
6.1. Corporate Power and Authority............................ 5
6.2. Acquisition for HLR's Account............................ 5
ARTICLE 7
COVENANTS OF STOCKHOLDER
7.1. No Solicitation; No Shopping............................. 6
7.2. Further Action........................................... 6
ARTICLE 8
MISCELLANEOUS
8.1. Registration Provisions.................................. 6
8.2. Additional Agreements.................................... 6
8.3. Specific Performance..................................... 7
8.4. Notices.................................................. 7
8.5. Amendments; Termination.................................. 7
8.6. Successors and Assigns................................... 7
8.7. Governing Law............................................ 8
8.8. Counterparts; Effectiveness.............................. 8
SHARING AND CALL OPTION AGREEMENT
SHARING AND CALL OPTION AGREEMENT, dated as of December 13, 1994
among HLR Holdings Inc., a Delaware corporation ("HLR") and parent of Roche
Biomedical Laboratories, Inc., a New Jersey corporation ("RBL"), Mafco
Holdings Inc., a Delaware corporation ("Mafco"), and National Health Care
Group, Inc., a Delaware corporation (the "Stockholder") and an indirect
wholly-owned subsidiary of Mafco and, solely with respect to Section 8.1
hereof, National Health Laboratories Holdings Inc., a Delaware corporation
(the "Company").
WHEREAS, HLR, RBL, the Company and Hoffmann-La Roche Inc., a New
Jersey Corporation propose to enter into an Agreement and Plan of Merger of
even date herewith (the "Merger Agreement") providing for the merger of RBL
into and with the Company as the surviving corporation (the "Merger"); and
WHEREAS, Stockholder owns approximately 23.8%of the issued and
outstanding shares of the Company's common stock, $.01 par value, per share
(the "Common Stock"); and
WHEREAS, in connection with entering into the Merger Agreement, HLR,
Mafco and Stockholder desire to enter into this Agreement setting forth
certain rights and obligations of the parties with respect to Stockholder's
investment in the Company;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties agree
as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. Certain Definitions. Capitalized terms used and not
defined herein have the meanings assigned to them in the Merger Agreement.
The following terms, as used herein, have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with such Person, provided that no stockholder of the Company shall be deemed
an Affiliate of any other stockholder solely by reason of any investment in
the Company. For the purpose of this definition, the term "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities or by contract or otherwise.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banking institutions in New York City are authorized by
law or executive order to close.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" means the NASD Automated Quotation System.
"NASDAQ/NMS" means the NASDAQ-National Market System.
"Person" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
SECTION 1.2. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost
or expense.
ARTICLE 2
SHARING PAYMENTS
SECTION 2.1. Sharing Payments to HLR. (a) In the event that a
termination fee shall have become payable by the Company to HLR pursuant to
Section 11.4(b) of the Merger Agreement and Stockholder sells, transfers,
assigns or otherwise disposes of (including by conversion or exchange in a
merger, exchange offer or the like) (any such action being a "transfer") any
of the Stockholder Shares (as defined in Section 2.1(d), Stockholder and
Mafco, jointly and severally, agree to pay to HLR an amount in cash (a
"Sharing Payment") equal to the product of (i) the number of Stockholder
Shares transferred by Stockholder or any of the controlled Affiliates of
Mafco and (ii) 50% of the excess, if any, of (A) the per share cash
consideration or the per share fair market value, as the case may be, of
any non-cash consideration received by Stockholder and each such controlled
Affiliate as a result of such transfer over (B) $20.00 (as adjusted to give
effect to any stock dividend, stock split, recapitalization, combination or
exchange of shares, merger, consolidation, reorganization or other similar
change or transaction by the Company).
(b) For purposes of this Section 2.1, the fair market value of any
non-cash consideration:
(i) consisting of securities listed on a national securities
exchange or traded on the NASDAQ/NMS shall be equal to the average
closing price per share of such security as reported on such exchange or
NASDAQ/NMS for the five trading days before the date of disposition by
Stockholder; and
(ii) consisting of consideration which is other than cash or
securities of the type specified in clause (i) of this Section 2.1,
shall be determined by a nationally recognized independent investment
banking firm (which firm shall be mutually agreed upon by the
parties) within 10 Business Days of the selection of such investment
banking firm; provided, however, that if the parties are unable to
agree within two Business Days after the date of disposition as to
the investment banking firm, then Morgan Stanley & Co. Incorporated
and CS First Boston Corporation shall jointly name a third investment
banking firm; provided further, that the fees and expenses of such
investment banking firm shall be borne equally by HLR, on the one
hand, and Stockholder, on the other hand. The determination of the
investment banking firm shall be binding upon the parties.
(c) Any Sharing Payment required to be made pursuant to this Section
2.1 shall be made two Business Days after the later of (i) the fifth trading day
after settlement of any disposition of any securities referred to in
subsection (b)(i) above for cash or (ii) the date on which the investment
banking firm delivers to the parties its determination of the per share value
of any non-cash consideration referred to in subsection (b)(ii) above received
pursuant to any disposition, as applicable.
(d) The term "Stockholder Shares" as used herein means (i) 20,176,729
shares of Common Stock which are all of the voting securities of the Company
presently beneficially owned or owned of record by Stockholder, Mafco and
their respective controlled Affiliates and (ii) any additional shares of
Common Stock or rights to acquire voting securities of the Company acquired by
Stockholder, Mafco or any of their respective controlled Affiliates (whether
by purchase or otherwise) from and after the date of this Agreement.
ARTICLE 3
VOTING OF STOCKHOLDER SHARES FOR THE MERGER
SECTION 3.1. No Sale of Stockholder Shares Prior to Effective Time.
Stockholder shall not transfer any Stockholder Shares prior to the Effective
Time except if a termination fee shall have become payable by the Company to
HLR pursuant to Section 11.4(b) of the Merger Agreement.
SECTION 3.2. Voting of Stockholder Shares. Stockholder shall be,
and Stockholder and Mafco shall cause their controlled Affiliates which hold
Common Stock to be, present in person or by proxy at the NHL Stockholder
Meeting for the purpose of voting on the adoption of the Merger Agreement, and
Stockholder and Mafco shall cause all of the Stockholder Shares to be voted in
favor of the Merger and adoption of the Merger Agreement.
ARTICLE 4
CALL RIGHTS
SECTION 4.1. Call Right with Respect to Stockholder Shares. (a)
At any time after the third anniversary of the date on which the Effective
Time occurs, HLR or an Affiliate of HLR (or if such purchase is not permitted
pursuant to applicable law or by any material agreement to which HLR or such
Affiliate is bound, a third party nominated by HLR) (any such party being a
"Purchaser") may exercise the right (the "Call Right"), which right may only
be exercised once, to purchase all, but not less than all, the shares of Common
Stock then owned by Stockholder, Mafco or any of their controlled Affiliates.
If Purchaser intends to exercise the Call Right, then, not less than 20
Business Days prior to the exercise thereof, Purchaser shall so notify
Stockholder of such intention to exercise the Call Right, specifying in such
notice (the "Call Notice") the date of such exercise (the "Exercise Date").
(b) On the Call Closing Date (as defined in Section 4.2), Purchaser
shall pay a price per share for the shares to be purchased as specified in the
Call Notice, equal to 102% of the average closing price per share of such
security as reported on the principal national securities exchange on which
such shares are listed, or if not so listed, as reported on NASDAQ/NMS, for
the 30 trading days before the Exercise Date.
SECTION 4.2. Closing with Respect to Exercise of Call Right. The
closing (the "Call Closing") of the call transaction shall take place at such
place as may be agreed upon by the parties and on such date as may be set
forth in a written notice from Purchaser to Stockholder (the "Call Closing
Date"), but in no event more than 5 Business Days after the later of (i) the
Exercise Date, and (ii) expiration of any applicable HSR Act waiting period or
the satisfaction of any required regulatory approval. At the Call Closing,
Stockholder, Mafco, or any of their controlled Affiliates, as the case may be,
will convey good, marketable and valid title to the shares being purchased
free and clear of any and all claims, liens, charges, encumbrances and
security interests. The parties agree to take all actions as may be
reasonably required to effect the Call Closing as promptly as practicable.
SECTION 4.3. No Sale After Call Notice. From and after the
receipt of a Call Notice, neither Stockholder, Mafco nor any of their
controlled Affiliates shall transfer any shares of Common Stock that are owned
by Stockholder, Mafco or any such controlled Affiliate except during any
period expiring 15 Business Days prior to the Exercise Date.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder and Mafco, jointly and severally, represent and warrant
to HLR that:
SECTION 5.1. Valid Title. Stockholder is the sole, true, lawful
and beneficial and record owner of the Stockholder Shares with no restrictions
on Stockholder's voting rights or rights of disposition pertaining thereto
other than those arising pursuant to bona fide pledge arrangements. None of
the Stockholder Shares is subject to any voting trust or other agreement
(other than this Agreement) or arrangement with respect to the voting of such
Stockholder Shares other than those arising from bona fide pledge
arrangements.
SECTION 5.2. Authority; Binding Effect. Stockholder and Mafco have
all requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by Stockholder and Mafco of this Agreement and the consummation by
Stockholder and Mafco of the transactions contemplated hereby have been duly
authorized by all necessary corporate action by Stockholder and Mafco. This
Agreement has been duly executed and delivered by Stockholder and Mafco and
constitutes a valid and binding agreement of Stockholder and Mafco.
SECTION 5.3. Governmental Authorization. The execution, delivery
and performance by Stockholder and Mafco of this Agreement and the
consummation by Stockholder and Mafco of the transactions contemplated hereby
require no action by, or filing with, any governmental body, agency, official
or authority, other than compliance with any applicable requirements of the
HSR Act.
SECTION 5.4. Non-Contravention. The execution, delivery and
performance of this Agreement by Stockholder and Mafco do not, and the
consummation by Stockholder and Mafco of the transactions contemplated hereby
do not and will not, (i) contravene or conflict with the certificate of
incorporation or the bylaws of Stockholder and Mafco, (ii) assuming compliance
with the HSR Act, 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 Stockholder and Mafco, (iii) constitute a
default under or give rise to a right of termination, cancellation or
acceleration of any right or obligation of Stockholder and Mafco or to a loss
of any benefit to which Stockholder and Mafco are entitled under any provision
of any agreement, contract or other instrument binding upon Stockholder or
Mafco or any license, franchise, permit or other similar authorization held by
Stockholder or Mafco or (iv) result in the creation or imposition of any lien
on any asset of Stockholder or Mafco. Notwithstanding anything to the
contrary in this Section 5.4, it is understood that the Stockholder Shares are
subject to bona fide pledge arrangements, but that Stockholder and Mafco will
take all actions necessary to enable Stockholder to comply with Section 3.2
and Article 4 hereof.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF HLR
HLR represents and warrants to Stockholder:
SECTION 6.1. Corporate Power and Authority. HLR has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by HLR of this
Agreement and the consummation by HLR of the transactions contemplated hereby
have been duly authorized by all necessary action, if any, of HLR. This
Agreement has been duly executed and delivered by HLR and constitutes a valid
and binding agreement of HLR.
SECTION 6.2. Acquisition for HLR's Account. Any shares of Common
Stock to be acquired pursuant to the Call Rights set forth in Article will be
acquired by HLR for its own account and not with a view to the public
distribution thereof and will not be transferred except in compliance with the
Securities Act. If required by applicable law, in the written opinion of
outside legal counsel to the Company (which opinion shall be) satisfactory to
HLR, any shares of Common Stock transferred hereunder may bear a legend
providing that such shares of Common Stock may only be sold or otherwise
disposed of in accordance with such Act.
ARTICLE 7
COVENANTS OF STOCKHOLDER
SECTION 7.1. No Solicitation; No Shopping. Stockholder and Mafco
shall comply with, and be bound by, the restrictions set forth in Section
5.4(a) of the Merger Agreement as if such restrictions were fully set forth in
this Agreement.
SECTION 7.2. Further Action. Stockholder and Mafco will take all
actions necessary to enable each of them and their Affiliates to comply with
Section 3.2 and Article 4 hereof.
ARTICLE 8
MISCELLANEOUS
SECTION 8.1. Registration Provisions. The Company shall use its
best efforts to cause the Registration Statement (as defined in the Merger
Agreement) to include a resale prospectus that would permit Stockholder (or
any pledgee of the Merger Shares under a bona fide pledge arrangement with
Stockholder) to sell shares of Common Stock received by Stockholder in the
Merger (the "Merger Shares") without restriction and, after the filing of the
Registration Statement, shall use its best efforts to prepare and file with
the SEC such amendments and post-effective amendments to the Registration
Statement as may be necessary to keep such Registration Statement continuously
effective for a period ending on the third anniversary of the date hereof and
during such period shall use its best efforts to cause the resale prospectus
to be supplemented by any required prospectus supplement. In addition, the
registration procedures set forth in Sections 6.6 through 6.11 as set forth in
the form of the Stockholder Agreement between HLR Holdings Inc. and the
Company attached as an Exhibit to the Merger Agreement (the "Stockholder
Agreement") (including, without limitation, the provisions with respect to
filings, blue sky qualification, amendments, due diligence, indemnification
and contribution) for the benefit of Investor (as defined therein) shall be
deemed incorporated herein, as applicable, for the benefit of Stockholder as
if fully set forth in this place (with all references to the "Investor"
therein being deemed to be references to Stockholder or the pledgee of any
Merger Shares referred to above, as the case may be) and in connection with
the registration referred to above, the Company shall pay the applicable
Registration Expenses (as defined in the Stockholder Agreement).
SECTION 8.2. Additional Agreements. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations and which may be required under any agreements,
contracts, commitments, instruments, understandings, arrangements or
restrictions of any kind to which such party is a party or by which such party
is governed or bound, to enable HLR to exercise and enjoy all the benefits and
rights associated with the Call Option and the Sharing Payment and otherwise
to consummate and make effective the transactions contemplated by this
Agreement, to obtain all necessary waivers, consents and approvals and effect
all necessary registrations and filings, including, but not limited to,
filings under the HSR Act, responses to requests for additional information
related to such filings, and submission of information requested by
governmental authorities, and to rectify any event or circumstances which
could impede consummation of the transactions contemplated hereby.
SECTION 8.3. Specific Performance. (a) The parties hereto agree
that HLR would be irreparably damaged if for any reason Stockholder, Mafco or
their Affiliates, as the case may be, failed to sell the shares of Common
Stock upon exercise of the Call Option, or to perform any of its other
obligations under this Agreement, and that HLR would not have an adequate
remedy at law for money damages in such event. Accordingly, HLR shall be
entitled to specific performance and injunctive and other equitable relief to
enforce the performance of this Agreement by Stockholder and Mafco. This
provision is without prejudice to any other rights that HLR may have against
Stockholder or Mafco for any failure to perform their respective obligations
under this Agreement.
(b) The parties hereto also agree that Stockholder would be
irreparably damaged if for any reason the Company failed to perform in full
its obligations as set forth in Section 8.1 hereof, and that Stockholder would
not have any adequate remedy at law or for money damages in such event.
Accordingly, Stockholder shall be entitled to specific performance and
injunctive and other equitable relief to enforce the performance of this
Agreement by the Company. This provision is without prejudice to any other
rights that Stockholder may have against the Company for any failure to
perform its obligations under this Agreement.
SECTION 8.4. Notices. All notices, requests, claims, demands and
other communications hereunder shall be deemed to have been duly given when
delivered in Person, by cable, telegram or telex, or by registered or
certified mail (postage prepaid, return receipt requested) to such party at
its address set forth on the signature page hereto.
SECTION 8.5. Amendments; Termination. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. This
Agreement shall terminate upon the earliest to occur of (i) the date on which
Stockholder, Mafco and their Affiliates own no shares of Common Stock except
with respect to the obligation to make any Sharing Payment which has become
due as a result of any transfer of shares of Common Stock (provided that such
shares have not been transferred in violation of this Agreement) or (ii) the
effective date of any termination of the Merger Agreement pursuant to Section
10.1(a), (b), (c), (e), or (g) thereof. Article of this Agreement shall
terminate when Stockholder, Mafco and their respective controlled Affiliates
shall own no shares of Common Stock that are subject to the registration
requirements of the Securities Act. Article of this Agreement shall
terminate 180 days after the effective date of any termination of the
Merger Agreement pursuant to Section 10.1(d) or (f) thereof except with
respect to the obligation to make any Sharing Payment which has become due
as a result of any transfer of shares of Common Stock.
SECTION 8.6. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto, except that
HLR may assign its rights and obligations hereunder to any Affiliate of HLR or
pursuant to Article 4 to a third party. Any Affiliate of Stockholder or Mafco
who acquires shares of Common Stock shall become a party to and be bound by
this Agreement.
SECTION 8.7. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of Delaware without giving effect to
the principles of conflicts of laws thereof.
SECTION 8.8. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto
shall have received counterparts hereof signed by all of the other parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
HLR HOLDINGS INC.
/s/ Bradford T. Smith
------------------------------
1403 Foulk Road, Suite 102 Name: Bradford T. Smith
P.O. Box 8985 Title:Assistant Secretary
Wilmington, DE 19899
MAFCO HOLDINGS INC.
/s/ Joram Salig
------------------------------
35 East 62nd Street Name: Joram Salig
New York, NY 10021 Title: Vice President
NATIONAL HEALTH CARE GROUP, INC.
/s/ Howard F. Gordon
------------------------------
Cypress Financial Center Name: Howard F. Gordon
5900 North Andrews Avenue Title:Vice President
Suite 700A
Ft. Lauderdale, FL 33309
NATIONAL HEALTH LABORATORIES
HOLDINGS INC.
/s/ James R. Maher
------------------------------
4225 Executive Square Name: James R. Maher
Suite 800 Title: President and Chief
La Jolla, CA 92037 Executive Officer
Dates Referenced Herein and Documents Incorporated by Reference
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