TERMINATION AGREEMENT
TERMINATION
AGREEMENT (this "Agreement") dated as of February 27, 2005 by and among MYLAN
LABORATORIES INC., a Pennsylvania corporation ("Mylan"), SUMMIT MERGER
CORPORATION, a Tennessee corporation ("Summit"), and KING PHARMACEUTICALS, INC.,
a Tennessee corporation ("King").
WHEREAS,
Mylan, Summit and King are parties to an Agreement and Plan of Merger dated as
of July 23, 2004 (the "Merger Agreement") (capitalized terms used but not
defined herein have the meanings set forth therein); and
WHEREAS,
pursuant to Section 7.1(a) of the Merger Agreement, the Merger Agreement may be
terminated, by mutual written consent of Mylan and King, if the Board of
Directors of each so determines.
NOW,
THEREFORE, Mylan, Summit and King hereby agree as follows:
1. Termination
of Merger Agreement.
Pursuant to Section 7.1(a) of the Merger Agreement, Mylan and King consent to
the termination of, and Mylan, Summit and King hereby terminate, the Merger
Agreement and abandon the Merger contemplated thereby, with the effects
described in Section 7.2 of the Merger Agreement.
2. Representations
and Warranties of Mylan and Summit. Mylan
and Summit each represent and warrant to King that it has all requisite
corporate power and authority to enter into this Agreement and to take the
actions contemplated hereby. The execution and delivery of this Agreement and
the actions contemplated hereby have been duly authorized by all necessary
corporate action on the part of each of Mylan and Summit. This Agreement has
been duly executed and delivered by each of Mylan and Summit and constitutes a
valid and binding agreement of each of Mylan and Summit, enforceable against
Mylan and Summit, respectively, in accordance with its terms.
3. Representations
and Warranties of King. King
represents and warrants to Mylan and Summit that King has all requisite
corporate power and authority to enter into this Agreement and to take the
actions contemplated hereby. The execution and delivery of this Agreement and
the actions contemplated hereby have been duly authorized by all necessary
corporate action on the part of King. This Agreement has been duly executed and
delivered by King and constitutes a valid and binding agreement of King,
enforceable against it in accordance with its terms.
4.
Cooperation. The
parties shall cooperate with each other and promptly prepare and file all
necessary documentation to withdraw all applications, notices, petitions and
filings made with, and shall use their reasonable efforts to terminate any
proceedings (other than any pending litigation) before, any Governmental
Entities in connection with the Merger Agreement.
5. Entire
Agreement. This
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement.
6. 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 counterparts have been signed by each of the parties and delivered
(including by facsimile) to the other parties.
7. Amendment. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
8. Governing
Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof, except for such provisions
where Tennessee law is mandatorily applicable, which provisions shall be
governed by and construed in accordance with the laws of the State of
Tennessee.
* * * *
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2
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date set forth above.
MYLAN
LABORATORIES INC.
By: /s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Vice
Chairman and
Chief
Executive Officer
KING
PHARMACEUTICALS, INC.
By:
/s/
Xxxxx X. Xxxxxxxx
Name:
Xxxxx X. Xxxxxxxx
Title:
President
and
Chief
Executive Officer
SUMMIT
MERGER CORPORATION
By: /s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title: Chief
Executive Officer
