AGREEMENT AND PLAN OF MERGER by and among MEDIMMUNE, INC., ASTRAZENECA PLC and ASTRAZENECA BIOPHARMACEUTICALS INC. Dated as of April 22, 2007
Exhibit
99.2
EXECUTION
COPY
AGREEMENT
AND PLAN OF MERGER
by
and
among
MEDIMMUNE,
INC.,
and
ASTRAZENECA
BIOPHARMACEUTICALS INC.
Dated
as
of April 22, 2007
TABLE
OF
CONTENTS
|
DEFINITIONS
|
||
|
Section
1.01
|
Definitions
|
2
|
|
Section
1.02
|
Interpretation
and Rules of Construction
|
10
|
|
ARTICLE
II
THE
OFFER
|
||
|
Section
2.01
|
The
Offer
|
12
|
|
Section
2.02
|
Actions
of Parent and Purchaser
|
14
|
|
Section
2.03
|
Actions
by the Company
|
15
|
|
Section
2.04
|
Board
of Directors
|
16
|
|
Section
2.05
|
Actions
by Directors
|
18
|
|
ARTICLE
III
THE
MERGER
|
||
|
Section
3.01
|
Merger
|
18
|
|
Section
3.02
|
Charter
and Bylaws
|
18
|
|
Section
3.03
|
Effective
Time of the Merger
|
19
|
|
Section
3.04
|
Closing
|
19
|
|
Section
3.05
|
Directors
and Officers of the Surviving Corporation
|
19
|
|
ARTICLE
IV
EFFECTS
OF THE MERGER
|
||
|
Section
4.01
|
Effects
of the Merger on Company Securities
|
19
|
|
Section
4.02
|
Effects
of the Merger on Purchaser Securities
|
21
|
|
Section
4.03
|
Payment
of Merger Consideration; Stock Transfer Books
|
21
|
|
Section
4.04
|
Company
Dissenting Shares
|
23
|
|
Section
4.05
|
Withholding
Rights
|
24
|
|
Section
4.06
|
Adjustments
to Prevent Dilution
|
24
|
|
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
|
||
|
Section
5.01
|
Organization
and Qualification; Authority
|
24
|
|
Section
5.02
|
Company
Subsidiaries
|
25
|
|
Section
5.03
|
Capitalization
|
25
|
|
Section
5.04
|
Authority
Relative to this Agreement; Validity and Effect of
Agreements
|
27
|
|
Section
5.05
|
No
Conflict; Required Filings and Consents
|
27
|
|
Section
5.06
|
Permits;
Compliance with Laws
|
28
|
|
Section
5.07
|
SEC
Filings; Financial Statements
|
28
|
|
Section
5.08
|
Absence
of Certain Changes or Events
|
30
|
|
Section
5.09
|
Absence
of Undisclosed Liabilities
|
30
|
|
Section
5.10
|
Absence
of Litigation
|
30
|
i
|
Section
5.11
|
Compliance
with Laws
|
30
|
|
Section
5.12
|
Employee
Benefit Plans
|
31
|
|
Section
5.13
|
Information
Supplied
|
33
|
|
Section
5.14
|
Intellectual
Property
|
33
|
|
Section
5.15
|
Regulatory
Compliance
|
33
|
|
Section
5.16
|
Taxes
|
34
|
|
Section
5.17
|
Environmental
Matters
|
35
|
|
Section
5.18
|
Real
Property
|
36
|
|
Section
5.19
|
Material
Contracts
|
36
|
|
Section
5.20
|
Interested
Party Transactions
|
37
|
|
Section
5.21
|
Brokers
|
37
|
|
Section
5.22
|
Opinion
of Financial Advisor
|
37
|
|
Section
5.23
|
Amendment
of Rights Plan; State Takeover Statute
|
38
|
|
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES OF THE BUYER PARTIES
|
||
|
Section
6.01
|
Organization
|
38
|
|
Section
6.02
|
Ownership
of Purchaser; No Prior Activities
|
38
|
|
Section
6.03
|
Power
and Authority
|
38
|
|
Section
6.04
|
No
Conflict; Required Filings and Consents
|
39
|
|
Section
6.05
|
Information
Supplied
|
40
|
|
Section
6.06
|
Absence
of Litigation
|
40
|
|
Section
6.07
|
Availability
of Funds
|
40
|
|
Section
6.08
|
No
Ownership of Company Capital Stock
|
40
|
|
Section
6.09
|
Other
Agreements or Understandings
|
40
|
|
Section
6.10
|
Brokers
|
40
|
|
Section
6.11
|
No
Additional Representations
|
41
|
|
ARTICLE
VII
CONDUCT
OF BUSINESS PENDING THE MERGER
|
||
|
Section
7.01
|
Conduct
of Business by the Company Pending the Merger
|
41
|
|
Section
7.02
|
Conduct
of Business by Buyer Parties Pending the Merger
|
44
|
|
ARTICLE
VIII
ADDITIONAL
AGREEMENTS
|
||
|
Section
8.01
|
Company
Proxy/Information Statement; Other Filings; Stockholders’
Meeting
|
45
|
|
Section
8.02
|
Access
to Information; Confidentiality
|
46
|
|
Section
8.03
|
No
Solicitation of Transactions by the Company
|
47
|
|
Section
8.04
|
Employee
Benefits Matters
|
49
|
|
Section
8.05
|
Directors’
and Officers’ Indemnification and Insurance of the Surviving
Corporation
|
51
|
|
Section
8.06
|
Further
Action; Reasonable Best Efforts
|
54
|
|
Section
8.07
|
Public
Announcements
|
54
|
|
Section
8.08
|
State
Takeover Laws
|
55
|
|
Section
8.09
|
Obligations
of Parent Relating to Call Spread Warrants
|
55
|
ii
|
Section
8.10
|
Compensation
Arrangements
|
55
|
|
Section
8.11
|
Notification
of Certain Matters
|
55
|
|
Section
8.12
|
Nasdaq
De-listing; Exchange Act Deregistration
|
56
|
|
Section
8.13
|
Further
Assurances
|
56
|
|
ARTICLE
IX
CONDITIONS
TO THE MERGER
|
||
|
Section
9.01
|
Conditions
to the Obligations of Each Party
|
56
|
|
Section
9.02
|
Conditions
to the Obligations of the Company
|
57
|
|
Section
9.03
|
Frustration
of Conditions
|
57
|
|
ARTICLE
X
TERMINATION,
AMENDMENT AND WAIVER
|
||
|
Section
10.01
|
Termination
|
57
|
|
Section
10.02
|
Effect
of Termination
|
58
|
|
Section
10.03
|
Fees
and Expenses
|
59
|
|
Section
10.04
|
Waiver
|
60
|
|
ARTICLE
XI
GENERAL
PROVISIONS
|
||
|
Section
11.01
|
Non-Survival
of Representations and Warranties
|
60
|
|
Section
11.02
|
Notices
|
60
|
|
Section
11.03
|
Severability
|
61
|
|
Section
11.04
|
Amendment
|
62
|
|
Section
11.05
|
Entire
Agreement; Assignment
|
62
|
|
Section
11.06
|
Performance
Guaranty
|
62
|
|
Section
11.07
|
Specific
Performance
|
62
|
|
Section
11.08
|
Parties
in Interest
|
63
|
|
Section
11.09
|
Governing
Law; Forum
|
63
|
|
Section
11.10
|
Waiver
of Jury Trial
|
63
|
|
Section
11.11
|
Headings
|
63
|
|
Section
11.12
|
Counterparts
|
64
|
|
Section
11.13
|
Waiver
|
64
|
|
Section
11.14
|
Company
SEC Reports
|
64
|
|
Annex
I
|
Conditions
to the Offer
|
|
iii
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (this “Agreement”)
is made
and entered into as of April 22, 2007, by and among MedImmune, Inc., a Delaware
corporation (the “Company”),
AstraZeneca PLC, a public limited company incorporated under the laws of England
and Wales (“Parent”),
and
AstraZeneca Biopharmaceuticals Inc., a Delaware corporation and an indirect
wholly owned subsidiary of Parent (“Purchaser”
and,
together with Parent, the “Buyer
Parties”).
WHEREAS,
the respective boards of directors of Parent, Purchaser and the Company have
determined that it is in the best interests of their respective stockholders
for
Parent to acquire the Company on the terms and subject to the conditions set
forth in this Agreement;
WHEREAS,
on the terms and subject to the conditions set forth herein, Purchaser has
agreed to commence a tender offer (as it may be amended from time to time as
permitted by this Agreement, the “Offer”)
to
purchase all outstanding shares of common stock, par value $0.01 per share,
of
the Company (the “Company
Common Stock”),
including the associated preferred stock purchase rights (the “Rights”)
issued
pursuant to the Rights Agreement dated as of October 31, 1998 between the
Company and American Stock Transfer & Trust Company (as amended, the
“Rights
Agreement”)
(the
shares of Company Common Stock, together with the Rights, being referred to
collectively as the “Company
Common Shares”),
at a
price of $58.00 per Company Common Share, in cash without interest (such price,
or any higher price as may be paid in the Offer in accordance with this
Agreement, the “Offer
Price”);
WHEREAS,
following consummation of the Offer, the parties intend that Purchaser will
be
merged with and into the Company (the “Merger”),
with
the Company surviving the Merger as an indirect wholly owned subsidiary of
Parent in accordance with the General Corporation Law of the State of Delaware
(the “DGCL”),
and
each Company Common Share that is not tendered and accepted pursuant to the
Offer (other than Dissenting Shares (as defined below) and Company Common Shares
held in the treasury of the Company or owned by Parent or any direct or indirect
wholly owned subsidiary of Parent or the Company) will thereupon be cancelled
and converted into the right to receive cash in an amount equal to the Offer
Price, on the terms and subject to the conditions set forth herein;
WHEREAS,
the board of directors of the Company (the “Company
Board”)
(A) has
by unanimous vote (i) determined that this Agreement and the transactions
contemplated hereby, including the Offer and the Merger, are advisable, fair
to
and in the best interests of the Company’s stockholders and (ii) approved this
Agreement and the transactions contemplated hereby, including the Offer and
the
Merger, on the terms and subject to the conditions set forth herein and (B)
is
recommending that the Company’s stockholders accept the Offer, tender their
Company Common Shares into the Offer, approve the Merger and adopt this
Agreement; and
1
WHEREAS,
the respective boards of directors of Parent and Purchaser have adopted,
approved and declared advisable, and Parent has caused the sole stockholder
of
Purchaser to approve, this Agreement providing for the Offer and the Merger
in
accordance with the DGCL, upon the terms and subject to the conditions set
forth
herein.
NOW,
THEREFORE, in consideration of the foregoing premises and the representations,
warranties, covenants and agreements set forth herein, as well as other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, Parent, Purchaser and
the Company hereby agree as follows:
DEFINITIONS
Section
1.01 Definitions.
(a) For
purposes of this Agreement:
“Action”
means
any claim, action, suit, proceeding, arbitration, mediation or investigation
as
to which notice has been provided to the applicable party.
“Affiliate”
or
“affiliate”
of
a
specified person means a person who, directly or indirectly through one or
more
intermediaries, controls, is controlled by, or is under common control with,
such specified person.
“beneficial
owner”
or
“beneficial
ownership”,
with
respect to any Company Common Shares, has the meaning ascribed to such term
under Rule 13d-3(a) of the Exchange Act.
“Business
Day”
or
“business
day”
means
any day on which the principal offices of the SEC in Washington, D.C. are open
to accept filings and on which banks are not required or authorized to close
in
New York, New York.
“Call
Spread Warrants”
means
warrants to purchase Company Common Shares pursuant to (a) the Confirmation
of
Warrant Transaction, dated June 22, 2006, between the Company and UBS AG, London
Branch for warrants expiring in 2011, (b) the Confirmation of Warrant
Transaction, dated June 22, 2006, between the Company and UBS AG, London Branch
for warrants expiring in 2013, (c) the Confirmation of Warrant Transaction,
dated June 22, 2006, between the Company and Xxxxxx Brothers OTC Derivatives,
Inc. for warrants expiring in 2011, (d) the Confirmation of Warrant Transaction,
dated June 22, 2006, between the Company and Xxxxxx Brothers OTC Derivatives,
Inc. for warrants expiring in 2013, (e) the Confirmation of Amended Warrant
Transaction, dated June 26, 2006, between the Company and UBS AG, London Branch
for warrants expiring in 2011, (f) the Confirmation of Amended Warrant
Transaction, dated June 26, 2006, between the Company and UBS AG, London Branch
for warrants expiring in 2013, (g) the Confirmation of Amended Warrant
Transaction, dated June 26, 2006, between the Company and Xxxxxx Brothers OTC
Derivatives, Inc.
2
for
warrants expiring in 2011 and (h) the Confirmation of Amended Warrant
Transaction, dated June 26, 2006, between the Company and Xxxxxx Brothers OTC
Derivatives, Inc. for warrants expiring in 2013.
“Claim”
means
any threatened, asserted, pending or completed Action, suit or proceeding,
or
any inquiry or investigation, whether instituted by any party hereto, any
Governmental Authority or any other party, that any Indemnified Party in good
faith believes might lead to the institution of any such Action, suit or
proceeding, whether civil, criminal, administrative, investigative or other,
including any arbitration or other alternative dispute resolution mechanism,
arising out of or pertaining to matters that relate to such Indemnified Party’s
duties or service as a director, officer, trustee, employee, agent, or fiduciary
of the Company, any of the Company Subsidiaries, or any employee benefit plan
(within the meaning of Section 3(3) of ERISA) maintained by any of the foregoing
or any other person at or prior to the Merger Effective Time at the request
of
the Company or any of Company Subsidiaries
“Code”
means
the Internal Revenue Code of 1986, as amended.
“Company
Acquisition Proposal”
means
any proposal or offer for, whether in one transaction or a series of related
transactions, any (a) merger, consolidation, business combination,
reorganization, recapitalization or similar transaction involving the Company
or
any Company Subsidiary that
would
constitute a “significant subsidiary” (as defined in Rule 1-02 of Regulation
S-X, but substituting 20% for references to 10% therein), (b) sale or other
disposition, directly or indirectly, by merger, consolidation, liquidation,
dissolution, share exchange or any similar transaction, of any assets of the
Company or the Company Subsidiaries representing 20% or more of the consolidated
assets of the Company and the Company Subsidiaries, (c) issue, sale or other
disposition by the Company of (including by way of merger, consolidation, share
exchange or any similar transaction) securities (or options, rights or warrants
to purchase, or securities convertible into, such securities) representing
20%
or more of the votes or value associated with the outstanding voting equity
securities of the Company, (d) tender offer or exchange offer in which any
Person or “group” (as such term is defined under the Exchange Act) offers to
acquire beneficial ownership (as such term is defined in Rule 13d-3 under the
Exchange Act), or the right to acquire beneficial ownership, of 20% or more
of
the outstanding Company Common Shares, or (e) transaction which is similar
in
form, substance or purpose to any of the foregoing transactions; provided,
however,
that the
term “Company Acquisition Proposal” shall not include (i) the Offer, the Merger
or any of the other transactions contemplated by this Agreement or (ii) any
merger, consolidation, business combination, reorganization, recapitalization
or
similar transaction solely among the Company and one or more Company
Subsidiaries or among Company Subsidiaries.
“Company
Bylaws”
means
the Amended and Restated Bylaws of the Company, as in effect immediately prior
to the Merger Effective Time.
“Company
Charter”
means
the Restated Certificate of Incorporation of the Company.
3
“Company
Disclosure Schedule”
means
the disclosure schedule delivered by the Company to Parent concurrently with
the
execution of this Agreement.
“Company
Hedge Options”
means
options to purchase Company Common Shares pursuant to (i) the Confirmation
of
Convertible Bond Hedge Transaction related to the Company’s convertible senior
notes due 2011, dated as of June 22, 2006, between the Company and UBS AG,
London Branch; (ii) the Confirmation of Convertible Bond Hedge Transaction
related to the Company’s convertible senior notes due 2013, dated as of June 22,
2006, between the Company and UBS AG, London Branch; (iii) the Confirmation
of
Convertible Bond Hedge Transaction related to the Company’s convertible senior
notes due 2011, dated as of June 22, 2006, between the Company and Xxxxxx
Brothers OTC Derivatives, Inc.; and (iv) the Confirmation of Convertible Bond
Hedge Transaction related to the Company’s convertible senior notes due 2013,
dated as of June 22, 2006, between the Company and Xxxxxx Brothers OTC
Derivatives, Inc.
“Company
Notes”
means
the convertible senior notes due 2011, 2013 and 2023 issued pursuant to the
Indentures.
“Company
Outstanding Shares”
means
the aggregate number of Company Common Shares outstanding immediately prior
to
the acceptance of Company Common Shares pursuant to the Offer.
“Company
Stock Options”
means
options to purchase Company Common Shares issued pursuant to any Incentive
Plan.
“Company
Superior Proposal”
means
any bona fide, unsolicited written Company Acquisition Proposal (on its most
recently amended and modified terms, if amended and modified) made by a third
party which the Company Board determines in good faith (after consultation
with
its financial and legal advisors and taking into account all the terms and
conditions of the Company Acquisition Proposal, including any break-up fees,
expense reimbursement provisions and conditions to consummation) to be more
favorable to the Company Stockholders than the Offer, the Merger and the other
transactions contemplated by this Agreement and for which financing, if a cash
transaction (in whole or in part), is then committed or determined by the
Company Board to be reasonably likely to be obtained; provided,
however¸
for
purposes of this definition of “Company Superior Proposal,” the term Company
Acquisition Proposal shall have the meaning assigned to such term herein, except
that the references to “20%” shall be deemed to be references to
“50%.”
“Company
Warrant”
means
warrants to purchase Company Common Shares, excluding the Call Spread
Warrants.
“control”
(including the terms “controlled
by”
and
“under
common control with”)
means
the possession, directly or indirectly of the power to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities, as trustee or executor, by contract or credit
arrangement or otherwise.
4
“Director
Stock Option Plans”
means
the Company’s 1993 Non-Employee Director Stock Option Plan and the Company’s
2003 Non-Employee Director Stock Option Plan.
“Director
Stock Options”
means
options to purchase Company Common Shares that were issued pursuant to the
Director Stock Option Plans.
“EMEA”
means
the European Medicines Agency.
“Employee
Stock Options”
means
the Company Stock Options, other than Director Stock Options.
“Expenses”
means
attorneys’ fees and all other costs, expenses and obligations (including,
without limitation, experts’ fees, travel expenses, court costs, retainers,
transcript fees, duplicating, printing and binding costs, as well as
telecommunications, postage and courier charges) paid or incurred in connection
with investigating, defending, being a witness in or participating in (including
on appeal), or preparing to investigate, defend, be a witness in or participate
in, any Claim for which indemnification is authorized pursuant to Section
8.05(a),
including any Action relating to a claim for indemnification or advancement
brought by an Indemnified Party.
“Environmental
Law”
means
any Law relating to the environment, natural resources, or safety or health
of
human beings or other living organisms, including the manufacture, distribution
in commerce and use, presence or Release of pollutants, contaminants or toxic
or
hazardous substances.
“FDA”
means
the United States Food and Drug Administration.
“GAAP”
means
generally accepted accounting principles as applied in the United
States.
“Governmental
Authority”
means
any foreign or domestic national, state, provincial, municipal or local
government, governmental, regulatory or administrative authority, agency,
instrumentality or commission or any court, tribunal, or judicial or arbitral
body.
“Hazardous
Substances”
means
any pollutant, contaminant, hazardous substance, hazardous waste, medical waste,
special waste, toxic substance, petroleum or petroleum-derived substance, waste
or additive, radioactive material, or other compound, element, material or
substance in any form whatsoever (including products) regulated, restricted
or
addressed by or under any applicable Environmental Law.
“Incentive
Plans”
means
all
employee,
director or executive share option or compensation plans or arrangements of
the
Company.
“Indentures”
means
(a) the Indenture, dated as of July 15, 2003, by and between the Company and
the
Bank of New York relating to the convertible senior notes due 2023, (b) the
Indenture, dated as of June 28, 2006, by and between the Company and
5
the
Bank
of New York relating to the convertible senior notes due 2011 and (c) the
Indenture, dated as of June 28, 2006, by and between the Company and the Bank
of
New York relating to the convertible senior notes due 2013.
“Intellectual
Property”
means
(a) patents, patent applications and invention registrations of any type, (b)
trademarks, service marks, trade dress, logos, trade names, domain names,
corporate names and other source identifiers, and registrations and applications
for registration thereof, (c) copyrightable works, copyrights, and registrations
and applications for registration thereof, and (d) confidential and proprietary
information, including trade secrets, know-how, inventions, discoveries,
improvements and research and development information.
“knowledge
of the Company”
or
“knowledge”
when
used in reference to the Company means the actual knowledge of those individuals
listed on Section
1.01(a)
of the
Company Disclosure Schedule.
“Law”
means
any national, state, provincial, municipal or local statute, law, ordinance,
regulation, rule, code, executive order, injunction, judgment, decree or other
order.
“Liens”
means
with respect to any property or asset (including any security), any mortgage,
claim, lien, pledge, charge, security interest, encumbrance, restriction,
easement, right of way, title defect or other adverse claim of any kind in
respect of such property or asset.
“Material
Adverse Effect”
means,
with respect to the Company, an effect, event, development or change (each,
an
“Effect”)
that,
individually or when taken together with all other Effects, has a material
adverse effect on the business, results of operations or financial condition
of
the Company and the Company Subsidiaries, taken as a whole, other than any
Effect arising out of or resulting from (a) a decrease in the market price
of
Company Common Shares in and of itself, (b) changes in conditions in the U.S.
or
global economy or capital or financial markets generally, including changes
in
interest or exchange rates, (c) changes in general legal, tax, regulatory,
political or business conditions in the countries in which the Company does
business (except to the extent the Company and the Company Subsidiaries, taken
as a whole, are disproportionately adversely affected relative to other
pharmaceutical or biotechnology businesses in such countries), (d) general
market or economic conditions in the pharmaceutical or biotechnology industries
(except to the extent that the Company and the Company Subsidiaries, taken
as a
whole, are disproportionately adversely affected relative to other participants
in such industries), (e) changes in GAAP, (f) the negotiation, execution,
announcement, pendency or performance of this Agreement or the transactions
contemplated hereby or the consummation of the transactions contemplated by
this
Agreement, including the impact thereof on relationships, contractual or
otherwise, with customers, suppliers, vendors, lenders, investors, venture
partners or employees, (g) acts of war, armed hostilities, sabotage or
terrorism, or any escalation or worsening of any such acts of war, armed
hostilities, sabotage or terrorism threatened or underway as of the date of
this
Agreement, (h) earthquakes, hurricanes, floods, or other natural disasters,
(i)
6
determinations
by the FDA or its European or Japanese equivalent, or any panel or advisory
body
empowered or appointed thereby, with respect to any products or product
candidates of Persons (other than the Company) similar to or competitive with
the Company’s material products or product candidates or the results of any
clinical trial with respect to any such products or product candidates, (j)
the
entry or threatened entry into the market of a generic version of Ethyol
(amifostine), (k) the results of any review by the FDA (or any advisory
committee thereof) of the Company’s application for label expansion permitting
the marketing of FluMist to individuals below the age of five years or any
other
filing made by the Company with the FDA regarding FluMist, (l) any results
from
the Numax CP117 or CP124 studies, or (m) any action taken by the Company at
the
request or with the consent of any of the Buyer Parties.
“Non-U.S.
Plan”
means
any Plan maintained outside the United States primarily for the benefits of
employee or consultants based outside of the United States.
“NYSE”
means
the New York Stock Exchange, Inc.
“Other
Filings”
means
any document, other than the Proxy/Information Statement, to be filed with
the
SEC in connection with this Agreement.
“Parent
Material Adverse Effect”
means
any event, circumstance, change or effect that would reasonably be expected
to
prevent, or materially impair the ability of Parent or Purchaser to consummate
the Merger or any of the other transactions contemplated by this
Agreement.
“Permitted
Liens”
means
(a) Liens for Taxes not yet delinquent and Liens for Taxes being contested
in
good faith and for which there are adequate reserves on the financial statements
of the Company (if such reserves are required pursuant to GAAP), (b) inchoate
mechanics’ and materialmen’s Liens for construction in progress, (c) workmen’s,
repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course
of business of the Company or any Company Subsidiary, (d) zoning restrictions,
utility easements, rights of way and similar Liens that are imposed by any
Governmental Authority having jurisdiction thereon or otherwise are typical
for
the applicable property type and locality and that, individually or in the
aggregate, would not reasonably be expected to materially interfere with the
Company’s and the Company Subsidiaries’ ability to conduct their businesses as
currently conducted, (e) Liens and obligations arising under or in connection
with the Company Material Contracts, (f) matters that would be disclosed on
current title reports or surveys that arise or have arisen in the ordinary
course of business, (g) Liens reflected in the Company SEC Reports, (h) licenses
of Intellectual Property, and (i) other Liens being contested in good faith
in
the ordinary course of business or which would not reasonably be expected to
have a Material Adverse Effect.
“person”
or
“Person”
means
an
individual, corporation, partnership, limited partnership, limited liability
company, syndicate, person (including a “person” as defined in Section 13(d)(3)
of the Exchange Act), trust, association or entity or Governmental Authority,
but shall exclude Company Subsidiaries.
7
“Pharmaceutical
Products”
means
the following products of the Company and the Company Subsidiaries: Synagis
(palivizumab), FluMist (Influenza Virus Vaccine Live, Intranasal) and Ethyol
(amifostine).
“PMDA”
means
the Japanese Pharmaceutical and Medical Devices Agency.
“Release”
means
any release, pumping, pouring, emptying, injecting, escaping, leaching,
migrating, dumping, seepage, spill, leak, flow, discharge or
emission.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“subsidiary”
or
“subsidiaries”
of
the
Company, Parent or any other person means a corporation, limited liability
company, partnership, joint venture or other organization of which: (a) such
party or any other subsidiary of such party is a general partner (in the case
of
a partnership) or managing member (in the case of a limited liability company),
(b) voting power to elect a majority of the board of directors or others
performing similar functions with respect to such organization is held by such
party or by any one or more of such party’s subsidiaries, (c) at least 50% of
the equity interests is controlled by such party, (d) at least 50% if the
beneficial interest is held by such party (in the case of a trust) or (e) at
least 50% of the interest in the capital or profits is held by such
party.
“Tax”
or
“Taxes”
means
any federal, state, local, or foreign income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall profits,
environmental, customs duties, capital stock, franchise, profits, withholding,
social security, unemployment, disability, real property, personal property,
sales, use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
“Tax
Return”
means
any return, declaration, report, claim for refund, or information return or
statement relating to Taxes, including any schedule or attachment thereto,
and
including any amendment thereof.
“Voting
Debt”
shall
mean bonds, debentures, notes or other indebtedness having the right to vote
(or
convertible into, or exchangeable for, securities having the right to vote)
on
any matters on which holders of equity interests in the Company or any Company
Subsidiary may vote.
(b) The
following terms have the meaning set forth in the Sections set forth
below:
|
Defined
Term
|
Location
of Definition
|
|
Acceptance
Time
|
Section
2.04(a)
|
|
Adverse
Recommendation Change
|
Section
8.03(b)
|
|
Agreement
|
Preamble
|
8
|
Defined
Term
|
Location
of Definition
|
|
Antitrust
Laws
|
Section
5.05(b)
|
|
Benefits
Continuation Period
|
Section
8.04(a)
|
|
Buyer
Parties
|
Preamble
|
|
Capital
Expenditures
|
Section
7.01(m)
|
|
Certificate
of Merger
|
Section
3.03
|
|
Closing
|
Section
3.04
|
|
Closing
Date
|
Section
3.04
|
|
Company
|
Preamble
|
|
Company
Board
|
Recitals
|
|
Company
Board Recommendation
|
Section
2.03(a)
|
|
Company
Common Shares
|
Recitals
|
|
Company
Common Share Certificates
|
Section
4.03(c)
|
|
Company
Common Stock
|
Recitals
|
|
Company
Dissenting Shares
|
Section
4.04
|
|
Company
Employees
|
Section
8.04(a)
|
|
Company
Intellectual Property
|
Section
5.14
|
|
Company
Material Contract
|
Section
5.19
|
|
Company
Paying Agent
|
Section
4.03(a)
|
|
Company
Preferred Shares
|
Section
5.03(a)
|
|
Company
SEC Reports
|
Section
5.07(a)
|
|
Company
Stockholders
|
Section
2.03(a)
|
|
Company
Stockholder Approval
|
Section
5.04
|
|
Company
Stockholders’ Meeting
|
Section
8.01(d)
|
|
Company
Stock Awards
|
Section
5.03(b)
|
|
Company
Subsidiaries
|
Section
5.02(a)
|
|
Company
Warrant Consideration
|
Section
4.01(e)
|
|
Compensation
Arrangement
|
Section
5.12(h)
|
|
Compensation
Arrangement Approvals
|
Section
5.12(h)
|
|
Compensation
Committee
|
Section
5.12(h)
|
|
Confidentiality
Agreement
|
Section
8.02(b)
|
|
Continuing
Directors
|
Section
2.04(a)
|
|
Contract
|
Section
5.05(a)
|
|
Delaware
Courts
|
Section
11.09(b)
|
|
Director
Option Consideration
|
Section
4.01(e)
|
|
DGCL
|
Recitals
|
|
Drug
or Health Laws
|
Section
5.15(a)
|
|
Employee
Option Consideration
|
Section
4.01(d)
|
|
Environmental
Permits
|
Section
5.17(a)(i)
|
|
ERISA
|
Section
5.12(a)
|
|
ERISA
Affiliate
|
Section
5.12(f)
|
|
Exchange
Act
|
Section
5.05(b)
|
|
Foreign
Antitrust Laws and Approvals
|
Annex
I
|
|
fully-diluted
basis
|
Annex
I
|
|
Governmental
Order
|
Section
10.01(c)
|
|
HSR
Act
|
Section
5.05(b)
|
9
|
Defined
Term
|
Location
of Definition
|
|
Indemnified
Parties
|
Section
8.05(a)
|
|
Independent
Directors
|
Section
2.04(b)
|
|
internal
controls
|
Section
5.07(d)
|
|
Initial
Expiration Date
|
Section
2.01(d)
|
|
IRS
|
Section
5.12(a)
|
|
Leased
Real Property
|
Section
5.18(b)
|
|
Merger
|
Recitals
|
|
Merger
Consideration
|
Section
4.01(b)
|
|
Merger
Effective Time
|
Section
3.03
|
|
Merger
Shares
|
Section
4.01(b)
|
|
Minimum
Condition
|
Annex
I
|
|
Nasdaq
|
Section
5.05(b)
|
|
New
Plans
|
Section
8.04(b)
|
|
Offer
|
Recitals
|
|
Offer
Commencement Date
|
Section
2.01(a)
|
|
Offer
Conditions
|
Section
2.01(b)
|
|
Offer
Documents
|
Section
2.02(a)
|
|
Offer
Price
|
Recitals
|
|
Old
Plans
|
Section
8.04(b)
|
|
Outside
Date
|
Section
10.01(b)
|
|
Owned
Real Property
|
Section
5.18(a)
|
|
Parent
|
Preamble
|
|
Permits
|
Section
5.06(a)
|
|
Plans
|
Section
5.12(a)
|
|
Pro-Rata
Payments
|
Section
8.04(c)
|
|
Proxy/Information
Statement
|
Section
2.03(a)
|
|
Purchaser
|
Preamble
|
|
Rights
|
Recitals
|
|
Rights
Agreement
|
Recitals
|
|
Schedule
14D-9
|
Section
2.03(b)
|
|
SEC
|
Section
5.07(a)
|
|
Section
16
|
Section
8.04(e)
|
|
Section
262
|
Section
4.04
|
|
Surviving
Corporation
|
Section
3.01
|
|
Surviving
Corporation Fund
|
Section
4.03(a)
|
|
Termination
Date
|
Section
10.01
|
|
Termination
Fee
|
Section
10.03(d)
|
|
Uncertificated
Shares
|
Section
4.03(c)
|
Section
1.02 Interpretation
and Rules of Construction.
In
this
Agreement, except to the extent otherwise provided or that the context otherwise
requires:
10
(a) when
a
reference is made in this Agreement to an Article, Section, Annex or Schedule,
such reference is to an Article or Section of, or an Annex or Schedule to,
this
Agreement unless otherwise indicated;
(b) any
capitalized terms used in any Annex or Schedule but not otherwise defined
therein, shall have the meaning as defined in this Agreement;
(c) the
table
of contents and headings for this Agreement are for reference purposes only
and
do not affect in any way the meaning or interpretation of this
Agreement;
(d) whenever
the words “include,” “includes” or “including” are used in this Agreement, they
are deemed to be followed by the words “without limitation”;
(e) the
words
“hereof,” “herein” and “hereunder” and words of similar import, when used in
this Agreement, refer to this Agreement as a whole and not to any particular
provision of this Agreement;
(f) references
to any statute, rule or regulation are to the statute, rule or regulation as
amended, modified, supplemented or replaced from time to time (and, in the
case
of statutes, include any rules and regulations promulgated under said statutes)
and to any section of any statute, rule or regulation include any successor
to
said section;
(g) all
terms
defined in this Agreement have the defined meanings when used in any certificate
or other document made or delivered pursuant hereto, unless otherwise defined
therein;
(h) the
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms;
(i) references
to a person are also to its successors and permitted assigns;
(j) the
use of
“or” is not intended to be exclusive unless expressly indicated
otherwise;
(k) references
to monetary amounts are to the lawful currency of the United
States;
(l) words
importing the singular include the plural and vice versa and words importing
gender include all genders; and
(m) time
periods within or following which any payment is to be made or act is to be
done
shall, unless expressly indicated otherwise, be calculated by excluding the
day
on which the period commences and including the day on which the period ends
and
by extending the period to the next Business Day following if the last day
of
the period is not a Business Day.
11
ARTICLE
II
THE
OFFER
Section
2.01 The
Offer.
(a) Provided
that this Agreement shall not have previously been validly terminated in
accordance with Section
10.01
and that
none of the events set forth in Paragraph (2)
(excluding Paragraph (2)(c)) of Annex I hereto shall exist or have occurred
and
be continuing, as promptly as practicable after the date hereof, but in any
event within ten (10) business days after the date of this Agreement, Parent
shall cause Purchaser to, and Purchaser shall, commence (within the meaning
of
Rule 14d−2 under the Exchange Act) the Offer for all of the outstanding Company
Common Shares (other than Company Common Shares described in Section
4.01(a))
for a
price per Company Common Share equal to the Offer Price (as adjusted as provided
in Section
2.01(f)).
The
date on which Purchaser commences the Offer, within the meaning of Rule 14d−2
under the Exchange Act, is referred to in this Agreement as the “Offer
Commencement Date”.
(b) As
promptly as practicable on the later of: (i) the earliest date as of which
Purchaser is permitted under applicable Law to accept for payment Company Common
Shares tendered pursuant to the Offer and (ii) the earliest date as of which
each of the conditions set forth in Annex I (the “Offer
Conditions”)
shall
have been satisfied or waived, Purchaser shall (and Parent shall cause Purchaser
to) accept for payment all Company Common Shares tendered pursuant to the Offer
(and not validly withdrawn). The obligation of Purchaser to accept for payment
Company Common Shares tendered pursuant to the Offer shall be subject only
to
the satisfaction or waiver of each of the Offer Conditions (and shall not be
subject to any other conditions). As promptly as practicable after the
acceptance for payment of any Company Common Shares validly tendered pursuant
to
the Offer (and not properly withdrawn), Purchaser shall pay for such Company
Common Shares.
(c) Parent
and
Purchaser expressly reserve the right to increase the Offer Price, and subject
to the immediately succeeding sentence, reserve the right to waive any of the
Offer Conditions and to make any change in the terms of the Offer.
Notwithstanding anything to the contrary contained in this Agreement, neither
Parent nor Purchaser shall (without the prior written consent of the
Company):
(i) change
or
waive the Minimum Condition (as defined in Annex I);
(ii) decrease
the number of Company Common Shares sought to be purchased by Purchaser in
the
Offer;
(iii) reduce
the
Offer Price;
(iv) extend
or
otherwise change the expiration date of the Offer (except to the extent required
or permitted pursuant to Section
2.01(d));
12
(v) change
the
form of consideration payable in the Offer; or
(vi) amend,
modify or supplement any of the Offer Conditions or terms of the Offer in a
manner that adversely affects, or would reasonably be expected to adversely
affect, the holders of Company Common Shares.
(d) Unless
extended as provided in this Agreement, the Offer shall expire on the date
(the
“Initial
Expiration Date”)
that is
twenty (20) business days (calculated as set forth in Rule 14d-1(g)(3) under
the
Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing,
(i) Purchaser shall extend the Offer for any period required by any rule,
regulation, interpretation or position of the SEC or its staff or Nasdaq that
is
applicable to the Offer; provided,
that in
no event shall Purchaser be required to extend the Offer beyond the Outside
Date, (ii) if, on the Initial Expiration Date or any subsequent date as of
which
the Offer is scheduled to expire, any Offer Condition is not satisfied and
has
not been waived, then, (A) Purchaser may in its discretion, without the consent
of the Company and (B) Purchaser shall to the extent such Offer Condition could
reasonably be satisfied and such extension is requested in writing by the
Company no less than two (2) business days prior to the applicable expiration
date, extend the Offer for one or more periods ending no later than the Outside
Date to permit such Offer Condition to be satisfied; provided,
however,
that no
individual extension shall be for a period of more than ten (10) business
days;
and (iii)
Purchaser may, in its discretion, elect to provide for a subsequent offering
period (and one or more extensions thereof) in accordance with Rule 14d-11
under
the Exchange Act following the Acceptance Time,
and, if
immediately following the Acceptance Time (as defined in Section
2.04(a)),
Parent,
Purchaser and their respective subsidiaries and Affiliates own more than 80%
but
less than 90% of the Company Common Shares outstanding at that time (which
shares beneficially owned shall include shares tendered in the Offer and not
withdrawn), to the extent requested by the Company, Purchaser shall provide
for
a subsequent offering period of at least ten (10) business days. Subject to
the
terms and conditions set forth in this Agreement and the Offer, Parent shall
cause Purchaser to, and Purchaser shall, accept for payment and pay for all
Company Common Shares validly tendered and not withdrawn during such subsequent
offering period as promptly as practicable after any such Company Common Shares
are tendered during such subsequent offering period and in any event in
compliance with Rule 14d-11(c) promulgated under the Exchange Act.
(e) The
Offer
may be terminated prior to its expiration date (as such expiration date may
be
extended and re-extended in accordance with this Agreement), but only if this
Agreement is validly terminated in accordance with Section
10.01.
(f) The
Offer
Price shall be adjusted to the extent appropriate to reflect the effect of
any
stock split, division or subdivision of shares, stock dividend, reverse stock
split, consolidation of shares, reclassification, recapitalization or other
similar transaction with respect to Company Common Shares occurring or having
a
record date on or after the date of this Agreement and prior to the payment
by
Purchaser for the Company Common Shares.
13
Section
2.02 Actions
of Parent and Purchaser.
(a) On
the
Offer Commencement Date, Parent and Purchaser shall: (i) cause to be filed
with
the SEC a Tender Offer Statement on Schedule TO with respect to the Offer,
which
will contain Purchaser’s offer to purchase and related letter of transmittal
(the forms of which shall be reasonably acceptable to the Company) and the
related form of summary advertisement (such Tender Offer Statement on Schedule
TO and all exhibits, amendments and supplements thereto being referred to
collectively in this Agreement as the “Offer
Documents”)
and
(ii) cause the Offer Documents to be disseminated to holders of Company Common
Shares as required by applicable Law.
(b) Parent
and
Purchaser shall cause the Offer Documents to (i) comply in all material respects
with the applicable requirements of the Exchange Act and the rules and
regulations thereunder and (ii) on the date filed with the SEC and on the date
first published, sent or given to the Company Stockholders, not 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;
provided,
however,
no
covenant is made by Parent or Purchaser with respect to information supplied
by
or on behalf of the Company for inclusion or incorporation by reference in
the
Offer Documents.
(c) The
Company and its counsel shall be given a reasonable opportunity to review and
comment on the Offer Documents (including any amendment or supplement thereto)
prior to the filing thereof with the SEC. Parent and Purchaser shall (i)
promptly provide the Company and its counsel with a copy of any written comments
or a description of any oral comments received by Parent or Purchaser (or by
counsel to Parent or Purchaser) from the SEC or its staff with respect to the
Offer Documents and (ii) give the Company and its counsel a reasonable
opportunity to review and comment on any response formulated in connection
with
such comments prior to filing thereof with the SEC. Each of Parent and Purchaser
shall respond as promptly as practicable to any comments of the SEC or its
staff
with respect to the Offer Documents or the Offer.
(d) To
the
extent required by the applicable requirements of the Exchange Act and the
rules
and regulations thereunder: (i) each of Parent, Purchaser and the Company shall
promptly correct any information provided by it for use in the Offer Documents
if such information shall have become false or misleading in any material
respect and (ii) each of Parent and Purchaser shall use reasonable best efforts
to promptly cause the Offer Documents, as supplemented or amended to correct
such information, to be filed with the SEC and to be disseminated to holders
of
Company Common Shares. Without limiting the generality of the foregoing, the
Company shall promptly furnish to Parent and Purchaser the information relating
to the Company required by the Exchange Act to be set forth in the Offer
Documents.
(e) Parent
shall cause to be provided to Purchaser all of the funds necessary to purchase
any Company Common Shares that Purchaser becomes obligated
14
to
purchase pursuant to the Offer, and shall cause Purchaser to perform, on a
timely basis, all of Purchaser’s obligations under this Agreement.
Section
2.03 Actions
by the Company.
(a) The
Company hereby approves of and consents to the Offer and represents that the
Company Board, at a meeting duly called and held, unanimously (i) adopted and
approved this Agreement and approved the transactions contemplated hereby,
including the Offer and the Merger, in accordance with the DGCL; (ii) declared
that the Offer and the Merger and the other transactions contemplated by this
Agreement are fair to, and in the best interests of, the Company and the
stockholders of the Company (the “Company
Stockholders”);
(iii)
adopted resolutions recommending that the Company Stockholders accept the Offer,
tender their Company Common Shares pursuant to the Offer and adopt this
Agreement and approve the Merger, if required (the “Company
Board Recommendation”);
provided,
however,
that the
Company Board may withdraw, modify or amend the Company Board Recommendation
as
provided by Section
8.03
of this
Agreement; and (iv) adopted resolutions taking all other actions necessary
to
render Section 203 of the DGCL and the Rights inapplicable to each of the Offer,
the Merger and the other transactions contemplated by this Agreement. None
of
the aforesaid actions by the Company Board has been amended, rescinded or
modified as of the date hereof. The Company hereby consents to the inclusion
in
the Offer Documents of the Company Board Recommendation to the extent such
Company Board Recommendation is not withheld or withdrawn in accordance with
Section
8.03
of this
Agreement. To the extent the foregoing recommendation has been amended or
modified in accordance with Section
8.03
of this
Agreement, the Company hereby consents to the inclusion of such recommendation,
as so amended or modified, in the Offer Documents. The Company represents that
it has obtained all necessary consents to permit the inclusion in its entirety
of the fairness opinion of Xxxxxxx, Xxxxx & Co. in the Schedule 14D-9 (as
defined below) and, in each case, as necessary, the proxy statement (including
the form of proxies) or information statement relating to the vote of the
Company Stockholders with respect to this Agreement (as amended, supplemented
or
modified, the “Proxy/Information
Statement”).
The
Company has been advised by each of its directors and executive officers that
each such person intends to tender all Company Common Shares owned by such
person pursuant to the Offer.
(b) On
the
Offer Commencement Date, the Company shall file with the SEC and (following
or
contemporaneously with the initial dissemination of the Offer Documents to
holders of Company Common Shares to the extent required by applicable federal
securities laws) disseminate to holders of Company Common Shares a
Solicitation/Recommendation Statement on Schedule 14D−9 (together with any
amendments or supplements thereto, the “Schedule
14D−9”)
that,
subject to Section
8.03,
shall
contain the Company Board Recommendation. Except in connection with an Adverse
Recommendation Change made in accordance with Section
8.03,
Parent
and its counsel shall be given a reasonable opportunity to review and comment
on
the Schedule 14D−9 (including any amendment or supplement thereto) prior to the
filing thereof with the SEC. The Company shall: (i) promptly provide Parent
and
its counsel with a copy of any written comments and a description of any oral
comments received by the Company
15
(or
its
counsel) from the SEC or its staff with respect to the Schedule 14D−9 and (ii)
except with respect to any disclosure made relating to an Adverse Recommendation
Change in accordance with Section
8.03,
give
Parent and its counsel a reasonable opportunity to review and comment on any
response formulated in connection with such comments prior to the filing thereof
with the SEC. The Company shall respond as promptly as reasonably practicable
to
any comments of the SEC or its staff with respect to the Schedule 14D−9. The
Company shall cause the Schedule 14D−9 to (i) comply in all material respects
with the requirements of the Exchange Act and (ii) on the date filed with the
SEC and on the date first published, sent or given to the Company Stockholders,
shall not 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; provided,
however,
that no
covenant is made by the Company with respect to information supplied by or
on
behalf of Parent or Purchaser for inclusion or incorporation by reference in
the
Schedule 14D-9. To the extent required by the applicable requirements of the
Exchange Act and the rules and regulations thereunder: (A) each of Parent,
Purchaser and the Company shall promptly correct any information provided by
it
for use in the Schedule 14D−9 if such information shall have become false or
misleading in any material respect and (B) the Company shall use reasonable
best
efforts to promptly cause the Schedule 14D−9, as supplemented or amended to
correct such information, to be filed with the SEC and to be disseminated to
holders of Company Common Shares. Parent and Purchaser shall promptly furnish
to
the Company all information relating to Parent and Purchaser required by the
Exchange Act to be set forth in the Schedule 14D−9. To the extent requested by
the Company, Parent shall cause the Schedule 14D−9 to be mailed or otherwise
disseminated to the Company Stockholders together with the Offer Documents
disseminated to the Company Stockholders.
(c) In
connection with the Offer, the Company shall instruct its transfer agent to
promptly furnish to Purchaser a true and correct list, as of the most recent
practicable date, of the record holders of Company Common Shares and their
addresses, as well as mailing labels containing such names and addresses. The
Company will furnish Purchaser with such additional information (including
any
security position listings in the Company’s possession or reasonably obtainable
by the Company and any updated lists of stockholders, mailing labels and
security positions) and assistance as Purchaser may reasonably request for
purposes of communicating the Offer to the record holders and beneficial holders
of Company Common Shares. All information furnished in accordance with this
Section
2.03(c)
shall be
held in confidence by Parent and Purchaser in accordance with the requirements
of the Confidentiality Agreement, and shall be used by Parent and Purchaser
only
in connection with the communication of the Offer and the dissemination of
any
Proxy/Information Statement relating to the Merger to the holders of Company
Common Shares.
Section
2.04 Board
of Directors.
(a) After
the
first time that Purchaser accepts for payment any Company Common Shares tendered
pursuant to the Offer (the “Acceptance
Time”),
and at
all times thereafter, the Company will, upon Parent’s request and subject to
compliance
16
with
applicable Law, take all actions reasonably necessary to cause persons
designated by Parent to become directors of the Company so that the total number
of such persons equals that number of directors, rounded up to the next whole
number, determined by multiplying: (i) the total number of directors on the
Company Board (after giving effect to the directors elected or designated by
Parent in accordance with this Section
2.04(a))
by (ii)
the percentage that the number of Company Common Shares beneficially owned
by
Parent, Purchaser or any of their respective Affiliates bears to the total
number of Company Common Shares outstanding at the Acceptance Time (determined
on a fully-diluted basis but disregarding any unvested stock options and other
unvested rights to acquire Company Common Shares). The Company will take all
actions reasonably necessary to permit Parent’s designees to be elected to the
Company Board in accordance with this Section
2.04(a),
including using reasonable efforts to secure the resignation of directors,
promptly filling vacancies or newly created directorships on the Company Board,
increasing the size of the Company Board, and/or amending the bylaws of the
Company; provided,
however,
that
prior to the Merger Effective Time, the Company Board shall always have at
least
two Continuing Directors. The Company shall, upon Parent’s request following the
Acceptance Time, and at all times thereafter, also cause Persons designated
by
Parent to constitute the same percentage (rounded up to the next whole number)
as is on the Company Board of (i) each committee of the Company Board, (ii)
each
board of directors (or similar body) of each Company Subsidiary and (iii) each
committee (or similar body) of each such board, in each case, to the extent
permitted by applicable Law and the Nasdaq Marketplace Rules. For
purposes of this Section
2.04(a),
any and
all members of the Company Board immediately prior to the Acceptance Time who
remain on the Company Board after such designation by Parent pursuant to this
Section
2.04(a)
shall be
referred to as “Continuing
Directors”.
(b) In
the
event that Parent’s designees are elected or appointed to the Company Board
pursuant to Section
2.04(a)
hereof,
until the Merger Effective Time, the Company Board shall have at least such
number of directors as may be required by the Nasdaq Marketplace Rules or the
federal securities laws who are considered independent directors within the
meaning of such rules and laws (“Independent
Directors”);
provided,
however,
that in
such event, if the number of Independent Directors shall be reduced below the
number of directors as may be required by such rules or
securities laws for any reason whatsoever, the remaining Independent Director(s)
shall be entitled to designate persons to fill such vacancies who shall be
deemed to be Independent Directors for purposes of this Agreement or, if no
other Independent Director then remains, the other directors shall designate
such number of directors as may be required by the rules of Nasdaq and the
federal securities laws, to fill such vacancies who shall not be stockholders
or
Affiliates of Parent or Purchaser, and such Persons shall be deemed to be
Independent Directors for purposes of this Agreement.
(c) The
Company’s obligation to cause Parent’s designees to be elected or appointed to
the Company Board shall be subject to Section 14(f) of the Exchange Act and
Rule
14f−1 thereunder. The Company shall promptly take all actions, and shall include
in the Schedule 14D−9 such information with respect to the Company and its
officers and directors, as Section 14(f) of the Exchange Act and Rule 14f−1
thereunder require in order to fulfill its obligations under this Section
2.04,
so long
as
17
Parent
shall have timely provided to the Company all information with respect to Parent
and its designees, officers, directors and Affiliates required by Section 14(f)
of the Exchange Act and Rule 14f−1 thereunder. Parent shall promptly supply to
the Company in writing, and shall be solely responsible for, all such
information.
Section
2.05 Actions
by Directors.
Following the election or appointment of Parent’s designees to the Company Board
pursuant to Section
2.04(a),
and
until the Merger Effective Time, the approval of a majority of the Continuing
Directors shall be required to authorize: (a) any amendment to or termination
of
this Agreement by the Company; (b) any extension of time for the performance
of
any of the obligations or other acts of Parent or Purchaser; (c) any waiver
of
compliance with any covenant of Parent or Purchaser or any condition to any
obligation of the Company or any waiver of any right of the Company under this
Agreement; and (d) any other consent or action by the Company or the Company
Board with respect to this Agreement, the Offer or the Merger or any other
transaction contemplated thereby or in connection therewith.. The authorization
of any such matter by a majority of the Continuing Directors shall constitute
the authorization of such matter by the Company Board, and no other action
on
the part of the Company or any other director of the Company shall be required
to authorize such matter.
ARTICLE
III
THE
MERGER
Section
3.01 Merger.
Upon the
terms and subject to the conditions set forth in this Agreement, at the Merger
Effective Time, Purchaser shall be merged with and into the Company in
accordance with the DGCL and the separate corporate existence of Purchaser
shall
thereupon cease. The Company shall be the surviving corporation in the Merger
(sometimes hereinafter referred to as the “Surviving
Corporation”),
and
the separate corporate existence of the Company with all its rights, privileges,
immunities, powers and franchises shall continue unaffected by the Merger.
At
the Merger Effective Time, the effect of the Merger shall be as provided in
this
Agreement, the Certificate of Merger and the applicable provisions of the DGCL.
Without limiting the generality of the foregoing, and subject thereto, at the
Merger Effective Time, all of the property, rights, privileges, powers and
franchises of the Company and Purchaser shall vest in the Surviving Corporation,
and all debts, liabilities and duties of the Company and Purchaser shall become
the debts, liabilities and duties of the Surviving Corporation.
Section
3.02 Charter
and Bylaws.
(a) At
the
Merger Effective Time, the Company Charter shall be amended so as to contain
the
provisions, and only the provisions, contained immediately prior to the Merger
Effective Time in the Certificate of Incorporation of Purchaser, except for
Article FIRST of the Company Charter, which shall read “The name of the
corporation is MedImmune, Inc.” As so amended, such Company Charter shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
further amended as provided therein or by applicable Law.
18
(b) At
the
Merger Effective Time, the Bylaws of Purchaser in effect immediately prior
to
the Merger Effective Time shall be the Bylaws of the Surviving Corporation
(except that the name of the Surviving Corporation shall be MedImmune,
Inc.)
until
thereafter amended as provided therein or by applicable Law.
Section
3.03 Effective
Time of the Merger.
Subject
to the provisions of this Agreement, as soon as practicable on the Closing
Date,
the Company and Purchaser shall file a certificate of merger as contemplated
by
the DGCL (the “Certificate
of Merger”),
together with any required related certificates, filings or recordings, with
the
Secretary of State of the State of Delaware, in such form as required by, and
executed in accordance with the relevant provisions of, the DGCL. The Merger
shall become effective upon the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware or at such later date and time
as
the Company and Parent may agree upon and as is set forth in such Certificate
of
Merger (such time, the “Merger
Effective Time”).
Section
3.04 Closing.
Unless
this Agreement shall have been terminated in accordance with Section
10.01,
the
closing of the Merger (the “Closing”)
shall
occur as promptly as practicable (but in no event later than the third (3rd)
Business Day) after all of the conditions set forth in Article
IX
(other
than conditions which by their terms are required to be satisfied or waived
at
the Closing, but subject to the satisfaction or waiver of such conditions)
shall
have been satisfied or waived by the party entitled to the benefit of the same,
or at such other time and on a date as agreed to by the parties (the
“Closing
Date”).
The
Closing shall take place at the offices of Xxxxx Xxxxxxxxxx LLP, 1301 Avenue
of
the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or at such other place as agreed to
by
the parties hereto.
Section
3.05 Directors
and Officers of the Surviving Corporation.
From and
after the Merger Effective Time, the directors of Purchaser immediately prior
to
the Merger Effective Time shall be the directors of the Surviving Corporation
and the officers of the Company immediately prior to the Merger Effective Time
shall be the officers of the Surviving Corporation, in each case, until their
respective successors are duly elected or appointed and qualified, or until
the
earlier of their death, resignation or removal.
ARTICLE
IV
EFFECTS
OF
THE MERGER
Section
4.01 Effects
of the Merger on Company Securities.
At
the
Merger Effective Time, by virtue of the Merger and without any action on the
part of the Company or the holders of any capital stock of the Company (other
than any requisite approval of the Merger by the Company Stockholders in
accordance with the DGCL):
(a) Each
Company Common Share held in treasury and each Company Common Share that is
owned by Parent or Purchaser immediately prior to the Merger Effective Time
shall be cancelled and retired and shall cease to exist, without any conversion
thereof and no payment or distribution shall be made with respect
thereto.
19
(b) Each
Company Common Share issued and outstanding immediately prior to the Merger
Effective Time (other than Company Dissenting Shares and except as otherwise
provided in Section
4.01(a)
and
Section
4.01(c)),
shall
be converted and exchanged automatically into the right to receive an amount
in
cash equal to the Offer Price (the “Merger
Consideration”),
payable to the holder thereof in accordance with Section
4.03.
The
Company Common Shares that are to be so converted into the right to receive
the
Merger Consideration are referred to herein as the “Merger
Shares”.
(c) Each
Company Common Share held by any subsidiary of either the Company or Parent
(other than Purchaser) immediately prior to the Merger Effective Time shall
be
converted into such number of shares of stock of the Surviving Corporation
such
that each such subsidiary owns the same percentage of the Surviving Corporation
immediately following the Merger Effective Time as such subsidiary owned in
the
Company immediately prior to the Merger Effective Time.
(d) All
Employee Stock Options, whether vested or unvested, that are outstanding
immediately prior to the Merger Effective Time shall become fully vested and
each such Employee Stock Option shall be cancelled, as of the Merger Effective
Time, in exchange for the right to receive an amount in cash (without interest
and less any applicable Taxes required to be withheld in accordance with
Section
4.05
with
respect to such payment) determined by multiplying (x) the excess of the Merger
Consideration over the applicable exercise price per share of such Employee
Stock Option by (y) the number of Company Common Shares subject to such Employee
Stock Option (the “Employee
Option Consideration”).
Payment of Employee Option Consideration shall be made as soon as practicable
after the Merger Effective Time but in any event within three (3) Business
Days
following the Merger Effective Time.
(e) Each
Director Stock Option that is outstanding immediately prior to the Merger
Effective Time shall, pursuant to the terms of the applicable Director Stock
Option Plan, become fully vested and each such Director Stock Option shall
be
cancelled, as of the Merger Effective Time, in exchange for the right to receive
an amount in cash (without interest and less any applicable Taxes required
to be
withheld in accordance with Section
4.05
with
respect to such payment) determined by multiplying (x) the excess of the Merger
Consideration over the applicable exercise price per share of such Director
Stock Option by (y) the number of Company Common Shares subject to such Director
Stock Option (the “Director
Option Consideration”).
Payment
of Director Option Consideration shall be made as soon as practicable after
the
Merger Effective Time but in any event within three (3) Business Days following
the Merger Effective Time.
(f) At
the
Merger Effective Time, each Company Warrant not theretofore exercised shall
be
cancelled in exchange for the right to receive an amount in cash equal to the
excess, if any, of (i) the Merger Consideration over (ii) the exercise price
per
share of such Company Warrant, multiplied by the total number of Company Common
Shares subject to such Company Warrant (the “Company
Warrant Consideration”),
without interest and less any applicable Taxes required to be withheld in
accordance with Section
4.05
with
respect to such payment. Payment of the Company
20
Warrant
Consideration shall be made as soon as practicable after the Merger Effective
Time but in any event within three (3) Business Days following the Merger
Effective Time.
Section
4.02 Effects
of the Merger on Purchaser Securities.
At the
Merger Effective Time, by virtue of the Merger and without any action by
Purchaser or Parent, as the holder of all outstanding capital stock of Purchaser
(other than the requisite approval by the sole stockholder of Purchaser in
accordance with the DGCL, which approval has been obtained), each outstanding
share of common stock of Purchaser issued and outstanding immediately prior
to
the Merger Effective Time shall be converted into and become one fully paid
and
nonassessable share of common stock of the Surviving Corporation with the same
rights, powers and privileges as the shares so converted and shall constitute
the only outstanding shares of the Surviving Corporation.
Section
4.03 Payment
of Merger Consideration; Stock Transfer Books.
(a) Prior
to
the Merger Effective Time, the Company shall appoint as paying agent a bank
or
trust company reasonably satisfactory to Parent (the “Company
Paying Agent”).
At or
prior to the Merger Effective Time, Parent shall deposit or cause the Surviving
Corporation to deposit with the Company Paying Agent, for the benefit of the
holders of Merger Shares, Company Stock Options and Company Warrants, cash
in an
amount sufficient to pay the aggregate Merger Consideration required to be
paid
plus cash in an amount sufficient to pay holders of Company Stock Options and
Company Warrants in accordance with this Agreement (such cash being hereinafter
referred to as the “Surviving
Corporation Fund”).
(b) The
Surviving Corporation Fund shall be invested by the Company Paying Agent in
(i)
direct obligations of the United States of America, (ii) obligations for which
the full faith and credit of the United States of America is pledged to provide
for payment of all principal and interest, (iii) commercial paper obligations
receiving the highest rating from either Xxxxx’x Investor Services, Inc. or
Standard & Poor’s, a division of The McGraw Hill Companies or (iv) money
market funds investing solely in a combination of the foregoing, or a
combination thereof, as directed by and for the benefit of the Surviving
Corporation; provided,
however,
that no
gain or loss thereon shall affect the amounts payable to the holders of Merger
Shares or Company Stock Options following completion of the Merger pursuant
to
this Article
IV
and
Parent shall take all actions necessary to ensure that the Surviving Corporation
Fund includes at all times cash sufficient to satisfy Parent’s obligation under
this Article
IV.
Any and
all interest and other income earned on the Surviving Corporation Fund shall
promptly be paid to the Surviving Corporation or Parent, as Parent directs.
(c) As
promptly as practicable after the Merger Effective Time, but in no event more
than five (5) Business Days following the Merger Effective Time, Parent and
the
Surviving Corporation shall cause the Company Paying Agent to mail to each
person who was, as of immediately prior to the Merger Effective Time, a holder
of record of the Merger Shares (i) a letter of transmittal (which shall be
in
customary form and shall specify that delivery shall be effected, and risk
of
loss and title to the certificates
21
representing
the Merger Shares (the “Company
Common Share Certificates”)
or
uncertificated Company Common Shares (“Uncertificated
Shares”)
shall
pass, only upon proper delivery of the Company Common Share Certificates or
transfer of the Uncertificated Shares to the Company Paying Agent) and (ii)
instructions for effecting the surrender of the Company Common Share
Certificates or transfer of the Uncertificated Shares in exchange for the Merger
Consideration.
(d) Upon
(i)
surrender to the Company Paying Agent of Company Common Share Certificates
for
cancellation, together with such letter of transmittal, duly completed and
validly executed in accordance with the instructions thereto, and such other
documents as may be required pursuant to such instructions, or (ii) receipt
of
an “agent’s message” by the Company Paying Agent (or such other evidence, if
any, of transfer as the Company Paying Agent may reasonably request) in the
case
of a book-entry transfer of Uncertificated Shares, the holder of such Company
Common Share Certificates or Uncertificated Shares shall be entitled to receive
in exchange therefor, in cash, the aggregate Merger Consideration in respect
thereof, and the Company Common Share Certificates or Uncertificated Shares
so
surrendered shall forthwith be cancelled.
The
Company Paying Agent shall accept such Company Common Share Certificates or
Uncertificated Shares upon compliance with such reasonable terms and conditions
as the Company Paying Agent may impose to effect an orderly exchange thereof
in
accordance with normal exchange practices.
(e) In
the
event of a transfer of ownership of Merger Shares that is not registered in
the
transfer records of the Company, payment of the Merger Consideration in respect
of the applicable Merger Shares may be made to a person other than the person
in
whose name the Company Common Share Certificates so surrendered or the
Uncertificated Shares so transferred is registered if such Company Common Share
Certificates shall be properly endorsed or otherwise be in proper form for
transfer or such Uncertificated Share shall be properly transferred and the
person requesting such payment shall pay any transfer or other taxes required
by
reason of the payment of the Merger Consideration in respect thereof or
establish to the reasonable satisfaction of the Surviving Corporation that
such
tax has been paid or is not applicable. Until surrendered or transferred, as
the
case may be, as contemplated by this Section
4.03,
each
Company Common Share Certificate or Uncertificated Share shall be deemed at
all
times after the Merger Effective Time to represent only the right to receive
upon such surrender or transfer the Merger Consideration. No interest shall
be
paid or will accrue on any cash payable to holders of Company Common Share
Certificates or Uncertificated Shares pursuant to the provisions of this
Article
IV.
(f) Any
portion of the Surviving Corporation Fund that remains undistributed to the
holders of Merger Shares for six months after the Merger Effective Time shall
be
delivered to the Surviving Corporation, upon demand, and any holders of Merger
Shares who have not theretofore complied with this Article
IV
shall
thereafter look only to the Surviving Corporation for, and the Surviving
Corporation shall remain liable for, payment of their claim for the Merger
Consideration. Any portion of the Surviving Corporation Fund remaining unclaimed
by holders of Merger Shares as of a date which is immediately prior to such
time
as such amounts would otherwise escheat to
22
or
become
property of any Governmental Authority shall, to the extent permitted by
applicable Law, become the property of the Surviving Corporation free and clear
of any claims or interest of any person previously entitled thereto. None of
Parent, the Company Paying Agent or the Surviving Corporation shall be liable
to
any holder of Merger Shares for any such shares (or dividends or distributions
with respect thereto), or cash delivered to a public official pursuant to any
abandoned property, escheat or similar Law.
(g) Any
portion of the Surviving Corporation Fund made available to the Company Paying
Agent pursuant to Section
4.03(a)
to pay
for Company Common Shares for which appraisal rights have been perfected shall
be returned to the Surviving Corporation or Parent, upon demand by
Parent.
(h) If
any
Company Common Share Certificate shall have been lost, stolen or destroyed,
upon
the making of an affidavit of that fact by the person claiming such Company
Common Share Certificate to be lost, stolen or destroyed and, if required by
the
Surviving Corporation, the posting by such person of a bond, in such reasonable
amount as the Surviving Corporation may direct, as indemnity against any claim
that may be made against it with respect to such Company Common Share
Certificate, the Company Paying Agent shall pay in respect of Merger Shares
to
which such lost, stolen or destroyed Company Common Share Certificate relate
the
Merger Consideration to which the holder thereof is entitled.
(i) At
the
Merger Effective Time, the stock transfer books of the Company shall be closed
and there shall be no further registration of transfers of Merger Shares
thereafter on the records of the Company. From and after the Merger Effective
Time, the holders of Company Common Share Certificates or Uncertificated Shares
shall cease to have any rights with respect to such shares, except as otherwise
provided in this Agreement, the certificate of incorporation of the Surviving
Corporation, or by applicable Law.
Section
4.04 Company
Dissenting Shares.
Notwithstanding anything in this Agreement to the contrary, Company Common
Shares that are outstanding immediately prior to the Merger Effective Time
and
that are held by any Person who is entitled to demand, and who properly demands,
appraisal of such Company Common Shares pursuant to, and who complies in all
respects with, Section 262 of the DGCL (such Section, “Section
262,”
and
such Company Common Shares, “Company
Dissenting Shares”)
shall
not be converted into the right to receive the Merger Consideration as provided
in Section
4.01(b),
but
rather, the holders of Company Dissenting Shares shall be entitled only to
payment of the fair value of such Company Dissenting Shares in accordance with
Section 262; provided
that if
any such holder shall fail to perfect or otherwise shall waive, withdraw or
lose
the right to appraisal under Section 262, then the right of such holder to
be
paid the fair value of such holder’s Company Dissenting Shares shall cease and
such Company Dissenting Shares shall be deemed to have been converted as of
the
Merger Effective Time into, and to have become exchangeable solely for, the
right to receive the Merger Consideration (without interest thereon) as provided
in Section
4.01(b).
The
Company shall notify Parent as promptly as reasonably practicable of any demands
received by the Company for appraisal of any Company Common
23
Shares,
and Parent shall have the right to participate in all negotiations and
proceedings with respect to such demands. Prior to the Merger Effective Time,
the Company shall not, without the prior written consent of Parent (which
consent shall not be unreasonably withheld), voluntarily make any payment with
respect to, or settle or offer to settle, any such demands, or agree to do
any
of the foregoing.
Section
4.05 Withholding
Rights.
The
Company, the Surviving Corporation or the Company Paying Agent, as applicable,
shall be entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any holder of Company Common Shares,
Company Stock Options or Company Warrants such amounts as it is required to
deduct and withhold with respect to the making of such payment under the Code,
and the rules and regulations promulgated thereunder, or any provision of state,
local or foreign Tax law. To the extent that amounts are so withheld by the
Company, the Surviving Corporation, or the Company Paying Agent, as applicable,
such withheld amounts shall be treated for all purposes of this Agreement as
having been paid to the holder of the Company Common Shares, Company Stock
Options and Company Warrants in respect of which such deduction and withholding
was made by the Company, the Surviving Corporation or the Company Paying Agent,
as applicable.
Section
4.06 Adjustments
to Prevent Dilution.
In the
event that, notwithstanding Section
7.01(c),
the
Company changes (or establishes a record date for changing) the number of
Company Common Shares issued and outstanding prior to the Merger Effective
Time
as a result of a stock split, stock dividend, recapitalization, subdivision,
reclassification, combination, exchange of shares or similar transaction with
respect to the outstanding Company Common Shares, at any time during the period
from the date hereof to the Merger Effective Time, then the Merger
Consideration, Employee Option Consideration, Director Option Consideration
and
Company Warrant Consideration shall be appropriately adjusted, taking into
account the record and payment or effective dates, as the case may be, for
such
transaction.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Subject
to
Section
11.14,
except
as set forth in the Company Disclosure Schedule or the Company SEC Reports
filed
before the date of this Agreement, the Company hereby represents and warrants
to
the Buyer Parties as follows:
Section
5.01 Organization
and Qualification; Authority.
(a) The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Company (i) is duly qualified
or
licensed to do business as a foreign corporation and is in good standing under
the laws of any other jurisdiction in which the character of the properties
owned, leased or operated by it therein or in which the transaction of its
business makes such qualification or licensing necessary and (ii) has all
requisite corporate power and authority to own, operate, lease and encumber
its
properties and carry on its business as
24
now
conducted, except where the failure to be so qualified, licensed or in good
standing or have such corporate power and authority would not, individually
or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(b) The
Company has previously provided or made available to Parent copies of the
Company Charter and Company Bylaws and all such documents are in full force
and
effect and no dissolution, revocation or forfeiture proceedings regarding the
Company have been commenced. The Company is not in violation of the Company
Charter and Company Bylaws in any material respect.
Section
5.02 Company
Subsidiaries
(a) Each
of
the Company’s subsidiaries (the “Company
Subsidiaries”),
together with the jurisdiction of organization of each such Company Subsidiary
is set forth on Section
5.02(a)
of the
Company Disclosure Schedule. Each Company Subsidiary is a corporation,
partnership, limited liability company, trust or other organization duly
incorporated or organized, validly existing and, to the extent applicable,
in
good standing under the laws of the jurisdiction of its incorporation or
organization, except where the failure to be so incorporated, organized, validly
existing or in good standing would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Each of the Company
Subsidiaries has the requisite corporate, limited partnership, limited liability
company or similar power and authority to own, lease and operate its properties
and to carry on its business as it is now being conducted, except where the
failure to have such power and authority would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each of
the
Company Subsidiaries is duly qualified or licensed to do business, and is,
(to
the extent applicable) in good standing, in each jurisdiction where the
character of the properties owned, leased or operated by it or the conduct
or
nature of its business makes such qualification or licensing necessary, except
for jurisdictions in which the failure to be so qualified, licensed or in good
standing would not, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect.
(b) The
Company is, directly or indirectly, the record and beneficial owner of all
of
the outstanding shares of capital stock or other equity interests of each of
the
Company Subsidiaries. All of such shares and other equity interests so owned
by
the Company are validly issued, fully paid and nonassessable and are owned
by it
free and clear of any Liens. Other than the Company Subsidiaries, neither the
Company nor any Company Subsidiary owns, directly or indirectly, any equity
or
other ownership interest in any Person.
Section
5.03 Capitalization.
(a) The
authorized capital stock of the Company consists of 420,000,000 Company Common
Shares and 5,524,525 shares of preferred stock, par value $0.01 per share,
of
the Company (“Company
Preferred Shares”).
As of
April 19, 2007, (i) 237,791,795 Company Common Shares were issued and
outstanding, all of which are validly issued, fully paid and nonassessable
and
(ii) 17,669,541 Company
25
Common
Shares were held in the treasury of the Company. As of the date of this
Agreement, no Company Preferred Shares are issued and outstanding.
(b) As
of
April 19, 2007, (i) 32,259,514 Company Common Shares were reserved for future
issuance pursuant to outstanding Company Stock Options and other purchase rights
and stock awards granted pursuant to the Incentive Plans (collectively, the
“Company
Stock Awards”)
and (ii)
5,147 Company Common Shares were reserved for future issuance pursuant to
outstanding Company Warrants.
(c) Except
as
set forth in Section
5.03(c)
of the
Company Disclosure Schedule and except for the Call Spread
Warrants:
(i) there
are
no (A) options, warrants or other rights, agreements, arrangements or
commitments of any character relating to the issued or unissued capital stock
of
the Company or any Company Subsidiary or obligating the Company or any Company
Subsidiary to issue or sell any shares of capital stock of, or other equity
interests in, the Company or any Company Subsidiary or (B) securities
convertible or exchangeable for capital stock or other voting securities or
equity interests in the Company or any Company Subsidiary;
(ii) there
are
no outstanding contractual obligations of the Company or any Company Subsidiary
to repurchase, redeem or otherwise acquire any shares of capital stock of the
Company or any Company Subsidiary;
(iii) there
are
no restricted shares, stock appreciation rights, performance units, contingent
clause rights, “phantom” equity or similar securities or rights that are
derivative of, or provide economic benefits based, directly or indirectly,
on
the value or price of, any capital stock of, or other voting securities of
or
ownership interests in, the Company or any Company Subsidiary;
(iv) there
are
no agreements or understandings to which the Company or any Company Subsidiary
is a party with respect to the voting of any shares of capital stock of the
Company or any Company Security or which restrict the transfer of any such
shares, nor does the Company have knowledge of any third party agreements or
understandings with respect to the voting of any such shares or which restrict
the transfer of any such shares; and
(v) there
is
no Voting Debt of the Company or any Company Subsidiary
outstanding.
(d) None
of
the Company Common Shares are owned by any Company Subsidiary.
(e) Section
5.03(e)
of the
Company Disclosure Schedule contains a complete and correct list of all
outstanding Director Stock Options, Employee Stock Options and Company Warrants
as of April 19, 2007, including the holder, the name of the relevant Incentive
Plan, if any, the date of grant and the exercise or base price and number of
Company Common Shares subject thereto.
26
Section
5.04 Authority
Relative to this Agreement; Validity and Effect of Agreements.
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 by this Agreement. Except for the approvals described
in the following sentence, the execution, delivery and performance by the
Company of this Agreement and the consummation of the transactions contemplated
by this Agreement have been duly and validly authorized by all necessary
corporate action on behalf of the Company. No other corporate proceedings on
the
part of the Company are necessary to authorize this Agreement or to consummate
the transactions contemplated by this Agreement other than the adoption of
this
Agreement by the holders of at least a majority of the outstanding Company
Common Shares entitled to vote in accordance with the DGCL (the “Company
Stockholder Approval”).
This
Agreement has been duly and validly executed and delivered by the Company and,
assuming the due authorization, execution and delivery by each of Parent and
Purchaser, constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as may
be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability relating to or
affecting creditors’ rights or by general equity principles.
Section
5.05 No
Conflict; Required Filings and Consents.
(a) The
execution and delivery by the Company of this Agreement do not, and the
performance of its obligations hereunder and thereunder will not, (i) conflict
with or violate the Company Charter or Company Bylaws or any provision of the
certificate of incorporation, bylaws or other similar organizational documents
of any Company Subsidiary, (ii) assuming that all consents, approvals,
authorizations and other actions described in subsection (b) of this
Section
5.05
have been
obtained and all filings and obligations described in subsection (b) of this
Section
5.05
have been
made, conflict with or violate any Law applicable to the Company or any Company
Subsidiary or by which any property or asset of the Company or any Company
Subsidiary is bound, (iii) require any consent or waiver under or result in
any
violation or breach of or constitute (with or without notice or lapse of time
or
both) a default (or give rise to any right of termination, amendment,
acceleration, prepayment or cancellation or to a loss of any benefit to which
the Company or any Company Subsidiary is entitled) under, or result in the
triggering of any payments pursuant to (A) any agreement, lease, license,
contract, loan, note, mortgage, indenture, undertaking or other commitment
or
obligation (each, a “Contract”)
to
which the Company or any Company Subsidiary is a party or by which it or any
of
its respective properties or assets may be bound or (B) any Permit affecting,
or
relating in any way to, the assets or business of the Company and the Company
Subsidiaries or (iv) result in the creation or imposition of any Lien or other
encumbrance (except for Permitted Liens) on any property or asset of the Company
or any Company Subsidiary except, with respect to clauses (ii), (iii) and (iv)
such triggering of payments, Liens, encumbrances, filings, notices, permits,
authorizations, consents, approvals, violations, conflicts, breaches or defaults
which would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
27
(b) The
execution and delivery by the Company of this Agreement does not, and the
performance of its obligations hereunder will not, require any consent,
approval, authorization of, or filing with or notification to, any Governmental
Authority, except (i) for (A) applicable requirements, if any, of the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”),
(B)
the pre-merger notification requirements of the Xxxx Xxxxx Xxxxxx Antitrust
Improvements Act of 1976, as amended (the “HSR
Act”),
(C)
compliance with the applicable requirements of laws, regulations or decrees
designed to prohibit, restrict or regulate actions for the purpose or effect
of
monopolization or restraint of trade (“Antitrust
Laws”)
in the
jurisdictions listed in Section
5.05(b)
of the
Company Disclosure Schedule, (D) any filings required under the rules and
regulations of the NASDAQ Global Select Market (the “Nasdaq”),
(E)
the filing of the Certificate of Merger pursuant to the DGCL, (F) the filing
of
customary applications and notices, as applicable, with the FDA, EMEA or PMDA
and (G) any registration, filing or notification required pursuant to state
securities or blue sky laws and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications
would not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect.
Section
5.06 Permits;
Compliance with Laws.
(a) The
Company and Company Subsidiaries are in possession of all franchises, grants,
authorizations, licenses, permits, consents, certificates, approvals and orders
from any Governmental Authority necessary for them to own, lease and operate
their properties or to carry on their business as it is now being conducted
(collectively, the “Permits”),
and
all such Permits are valid and in full force and effect, except where the
failure to obtain, maintain or possess, or the suspension or cancellation of,
any such Permits would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(b) Neither
the Company nor any Company Subsidiary is in violation of any Laws or Permits
applicable to the Company or any Company Subsidiary, or by which any property
or
asset of the Company or any Company Subsidiary is bound, except for any such
violations which would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section
5.07 SEC
Filings; Financial Statements.
(a) The
Company has timely filed all forms, reports and documents (including all
exhibits) required to be filed by it with the United States Securities and
Exchange Commission (the “SEC”)
since
January 1, 2004 (the “Company
SEC Reports”).
The
Company SEC Reports, each as amended prior to the date hereof, (i) have been
prepared in accordance with the requirements of the Securities Act or the
Exchange Act, as the case may be, and the rules and regulations promulgated
thereunder, in each case, as in effect as of the respective time of filing
of
such Company SEC Report, except where the failure to comply with such
requirements would not reasonably be expected to have a Material Adverse Effect,
and (ii) do not, as of the date thereof, contain any untrue statement of a
material fact or omit to state a material fact required to be
28
stated
therein or necessary in order to make the statements made therein, in the light
of the circumstances under which they were made, not misleading.
(b) Each
of
the consolidated financial statements (including, in each case, any notes
thereto) contained in the Company SEC Reports, each as amended prior to the
date
hereof, was prepared in accordance with GAAP applied on a consistent basis
throughout the periods indicated (except as may be indicated in the notes
thereto) and each fairly presented, in all material respects, the consolidated
financial position, results of operations and cash flows of the Company and
its
consolidated Company Subsidiaries as of the respective dates thereof and for
the
respective periods indicated therein except as otherwise noted therein (subject,
in the case of unaudited statements, to normal and recurring
adjustments).
(c) The
Company has established and maintains disclosure controls and procedures (as
defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and
procedures are designed to ensure that material information relating to the
Company, including its consolidated Company Subsidiaries, is made known to
the
Company’s principal executive officer and its principal financial officer by
others within those entities, particularly during the periods in which the
periodic reports required under the Exchange Act are being prepared. Such
disclosure controls and procedures are designed to be effective in timely
alerting the Company’s principal executive officer and principal financial
officer to material information required to be included in the Company’s
periodic reports required under the Exchange Act.
(d) Since
January 1, 2004, the Company and the Company Subsidiaries have established
and
maintained a system of internal control over financial reporting (as defined
in
Rule 13a-15 under the Exchange Act) (“internal
controls”).
Such
internal controls are designed to provide reasonable assurance regarding the
reliability of the Company’s financial reporting and the preparation of Company
financial statements for external purposes in accordance with GAAP. The Company
has disclosed, based on its most recent evaluation of internal controls prior
to
the date hereof, to the Company’s auditors and audit committee (x) any
significant deficiencies and material weaknesses in the design or operation
of
internal controls which are reasonably likely to adversely affect the Company’s
ability to record, process, summarize and report financial information and
(y)
any fraud, whether or not material, that involves management or other employees
who have a significant role in internal controls. The Company has made available
to Parent true and complete copies of the minutes of the meetings of the Audit
Committee of the Company Board since January 1, 2004.
(e) The
Company has made available to Parent true and complete copies of all comment
letters from the staff of the SEC relating to the Company SEC Reports and all
written responses to the Company thereto received or submitted since January
1,
2004 through the date of this Agreement. As of the date of this Agreement,
there
are no outstanding or unresolved comments in comment letters received from
the
SEC staff with respect to any Company SEC Reports.
29
(f) To
the
knowledge of the Company, as of the date of this Agreement, there are no SEC
inquiries or investigations, pending or threatened, or internal investigations,
in each case, regarding any accounting practices of the Company.
(g) The
Company has not had any material dispute with its independent public auditors
regarding accounting matters or policies since January 1, 2004. Since January
1,
2004, neither the Company nor any of the Company Subsidiaries nor, to the
knowledge of the Company, any director, officer, employee, auditor, accountant
or representative of the Company or any of the Company Subsidiaries has received
any material, unresolved complaint, allegation, assertion or claim regarding
accounting or auditing practices, procedures, methodologies or methods of the
Company or any of the Company Subsidiaries or their respective internal
accounting controls or any material inaccuracy in the Company’s financial
statements.
Section
5.08 Absence
of Certain Changes or Events.
Except
as disclosed in the Company SEC Reports, since December 31, 2006, the Company
has conducted its business in all material respects in the ordinary course
and
there has not been (a) an event, occurrence, effect or circumstance which,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect or (b) any action taken by the Company or any of the
Company Subsidiaries that, if taken during the period from the date of this
Agreement through the Merger Effective Time without Parent’s consent, would
constitute a breach of Section
7.01;
provided
that, for
the purposes of clause (b)
of
this Section
5.08,
references to “the date hereof” in clauses (a)
through
(r)
of
Section
7.01
shall be
deemed to refer to December 31, 2006.
Section
5.09 Absence
of Undisclosed Liabilities.
The
Company and the Company Subsidiaries do not have any liabilities or obligations
of any nature (whether accrued, absolute, contingent or otherwise) other than
liabilities or obligations (a) reflected on, reserved against in or disclosed
in
the notes to, the Company’s consolidated balance sheet as of December 31, 2006
included in the Company’s consolidated financial statements, (b) that have been
discharged or paid in full prior to the date of this Agreement in the ordinary
course of business, (c) incurred in the ordinary course of business since
December 31, 2006 or (d) that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
Section
5.10 Absence
of Litigation.
(i)
There is no Action pending or, to the knowledge of the Company, threatened
against the Company or any Company Subsidiaries or any of its or their
respective properties or assets or against any Plan, except as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect and (ii) none of the Company or any of the Company Subsidiaries
or Plan is subject to any order, judgment, writ, injunction or decree, except
as
would not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect.
Section
5.11 Compliance
with Laws.
The
Company and each of the Company Subsidiaries is and, since January 1, 2004,
has
been in compliance with, and to the knowledge of the Company is not under
investigation with respect to and has not
30
been
threatened to be charged with or given notice of any violation of, any
applicable Law, except for failures to comply or violations that have not had
and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
Section
5.12 Employee
Benefit Plans.
(a) Section
5.12(a) of
the
Company Disclosure Schedule lists all employee benefit plans (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”))
and
all material bonus, stock option, stock purchase, restricted stock, incentive,
deferred compensation, retiree medical or life insurance, supplemental
retirement, severance or other benefit plans, programs or arrangements, and
all
employment, termination, severance or other contracts or agreements with
employees with an aggregate annual base salary of $200,000 or more to which
the
Company or any Company Subsidiary is a party, with respect to which the Company
or any Company Subsidiary has any obligation or which are maintained,
contributed to or sponsored by the Company or any Company Subsidiary for the
benefit of any current or former employee, officer, director or consultant
of
the Company or any Company Subsidiary (collectively, the “Plans”).
The
Company has made available to Parent copies, which are correct and complete,
of
the following: (i) the Plans (other than Non-U.S. Plans), (ii) the annual report
(Form 5500) filed with the Internal Revenue Service (“IRS”)
for the
last year, (iii) the most recently received IRS determination letter, if any,
relating to the Plans and (iv) the most recent summary plan description for
such
Plans (or other descriptions of such Plans provided to employees) and all
material modifications thereto (other than with respect to Non-U.S.
Plans).
(b) Each
Plan
has been operated in all material respects in accordance with its terms and
the
requirements of all applicable Laws, including ERISA and the Code. Each Plan
that is intended to be qualified under Section 401(a) of the Code or Section
401(k) of the Code has received a favorable determination letter from the IRS,
or is entitled to rely on a favorable opinion issued by the IRS, and to the
knowledge of the Company no fact or event has occurred since the date of such
determination letter or letters from the IRS to adversely affect the qualified
status of any such Plan or the exempt status of any such trust.
(c) Neither
the Company nor any Company Subsidiary sponsors or has sponsored any Plan that
provides for any post-employment or post-retirement health or medical or life
insurance benefits for retired, former or current employees of the Company
or
any Company Subsidiary, except as required by Section 4980B of the
Code.
(d) Full
payment has been made, or otherwise properly accrued on the books and records
of
the Company and any Company Subsidiary, of all amounts that the Company and
any
Company Subsidiary are required under the terms of the Plans to have paid as
contributions to such Plans on or prior to the date hereof (excluding any
amounts not yet due).
31
(e) Except
as
set forth in Section
5.12(e)
of the
Company Disclosure Schedule, no Plan, either individually or collectively,
provides for any payment by the Company or any Company Subsidiary of, or any
increase in or accelerated vesting or funding of, any amount or benefit as
a
result of the transactions contemplated by this Agreement (alone or together
with other events), and except as noted in Section
5.12(e)
of the
Company Disclosure Schedule, no benefits under any Plan would constitute a
“parachute payment” within the meaning of Section 280G of the Code after giving
effect to the transactions contemplated by this Agreement.
No Plan
exists that could give rise to the payment of any amount that would not be
deductible pursuant to the terms of Section 162(m) of the Code.
(f) Neither
the Company nor any ERISA Affiliate sponsors, maintains, administers,
contributes to (or is required to sponsor, maintain, administer or contribute
to), or has sponsored, maintained, administered, contributed to (or was required
to sponsor, maintain, administer or contribute to), in the past six years any
Plan (or United States based pension plan in the case of an ERISA Affiliate)
that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971
of
the Code. For purposes of this Section
5.12(f),
an
entity is an “ERISA
Affiliate”
of
the
Company if it would have ever been considered a single employer with the Company
under 4001(b) of ERISA or part of the same controlled group as the Company
for
purposes of Section 302(d)(8)(C) of ERISA.
(g) Except
as
set forth in Section
5.12(g)
of the
Company Disclosure Schedule, neither the Company nor any Company Subsidiary
has
been a party to or subject to, or is currently negotiating in connection with
entering into, any collective bargaining agreement or other labor agreement
with
any union or labor organization, and there has not been any activity or
proceeding of any labor organization or employee group to organize any such
employees. Furthermore, there are no material (i) pending or threatened labor
practice charges or complaints against the Company or any Company Subsidiary;
(ii) labor strikes, slowdowns or stoppages actually pending or threatened
against or affecting the Company or any Company Subsidiary; or (iii)
labor-related grievances or pending arbitration proceedings against the Company
or any Company Subsidiary, other than individual grievances in the ordinary
course of business.
(h) The
Compensation Committee of the Company Board (the “Compensation
Committee”)
has (i)
approved each Plan pursuant to which consideration is payable to any officer,
director or employee (each, together with the arrangements contemplated by
Section
8.04(d)
of the
Company Disclosure Schedule, a “Compensation
Arrangement”)
as an
“employment compensation, severance or other employee benefit arrangement”
within the meaning of Rule 14d-10(d)(2) under the Exchange Act, and (ii) taken
all other actions necessary or advisable to satisfy the requirements of the
non-exclusive safe harbor with respect to such Compensation Arrangement in
accordance with Rule 14d-10(d)(2) under the Exchange Act (the approvals and
actions referred to in clauses (i) and (ii) above, the “Compensation
Arrangement Approvals”).
The
Company Board has determined that the Compensation Committee is composed solely
of “independent directors” in accordance with the requirements of Rule
14d-10(d)(2) under the Exchange Act and the instructions thereto.
32
Section
5.13 Information
Supplied.
None
of
the information supplied or to be supplied by the Company for inclusion or
incorporation by reference in (a) the Offer Documents, (b) the Schedule 14D-9
(including the information required by Section 14(f) of the Exchange Act and
Rule 14f−1 thereunder) or (c) the Proxy/Information Statement, as required,
will, (i) in the case of the Offer Documents and the Schedule 14D-9, at the
respective times the Offer Documents and the Schedule 14D-9 are filed with
the
SEC or first published, sent or given to the Company Stockholders, or (ii)
in
the case of the Proxy/Information Statement, at the time the Proxy/Information
Statement is first mailed to the Company Stockholders or at the time of the
Company Stockholders Meeting, 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, except that no representation or warranty is
made
by the Company with respect to statements made or incorporated by reference
therein based on information supplied by or on behalf of Parent or Purchaser
for
inclusion or incorporation by reference therein.
Section
5.14 Intellectual
Property.
Except
as would not have, individually or in the aggregate, a Material Adverse Effect,
either the Company or a Company Subsidiary owns, or is licensed or otherwise
possesses legally enforceable rights to use, subject to any existing licenses
or
other grants of rights to third parties, all Intellectual Property used in
their
respective businesses as currently conducted (collectively, the “Company
Intellectual Property”).
Except
as would not have, individually or in the aggregate, a Material Adverse Effect,
(a) as of the date hereof, there are no pending or, to the knowledge of the
Company, threatened claims by any person alleging infringement of any material
Intellectual Property rights of any person by the Company or any Company
Subsidiaries for their use of the Company Intellectual Property, (b) to the
knowledge of the Company, the conduct of the business of the Company and the
Company Subsidiaries does not infringe any Intellectual Property rights of
any
person, (c) as of the date hereof, neither the Company nor any Company
Subsidiary has made any claim of a violation or infringement by others of its
rights to or in connection with the Company Intellectual Property and (d) to
the
knowledge of the Company, no person is infringing any Company Intellectual
Property.
Section
5.15 Regulatory
Compliance.
Except
as would not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect, since January 1, 2006:
(a) To
the
knowledge of the Company, all Pharmaceutical Products that are subject to the
jurisdiction of the FDA, EMEA or PMDA are being developed, labeled, stored,
tested, marketed, promoted and distributed in compliance with all applicable
requirements under the Federal Food Drug and Cosmetic Act of 1938 and the Public
Health Service Act of 1944 (the “Drug
or
Health Laws”)
and any
other similar Law of the European Union or Japan.
(b) To
the
knowledge of the Company, all clinical trials relating to Pharmaceutical
Products conducted by or on behalf of the Company and the Company Subsidiaries
have been, and are being, conducted in compliance with the requirements of
33
the
FDA’s
Good Clinical Practice regulations, and all applicable similar requirements
in
other jurisdictions, and all requirements relating to protection of human
subjects under any applicable Drug or Health Laws.
(c) To
the
knowledge of the Company, all manufacturing operations relating to
Pharmaceutical Products and conducted by, or on behalf of, the Company and
the
Company Subsidiaries have been and are being, to the extent required by Law,
conducted in compliance with the FDA’s current Good Manufacturing Practice
regulations for drug products and all applicable similar foreign regulatory
requirements of any Governmental Authority.
(d) To
the
knowledge of the Company, no Pharmaceutical Product has been recalled,
suspended, or discontinued as a result of any action by the FDA, EMEA, PMDA,
or
any national health authority of any member state of the European
Union.
(e) To
the
knowledge of the Company, the Company has not received, and no licensor or
distribution partner of a Pharmaceutical Product has received, any notice from
the FDA, EMEA, PMDA, or any national health authority of any member state of
the
European Union that it has commenced, or threatened to initiate, any action
to
withdraw approval, place sales or marketing restrictions on or request the
recall of any Pharmaceutical Product, or that it has commenced, or threatened
to
initiate, any action to enjoin or place restrictions on the production of any
Pharmaceutical Product.
(f) Neither
the Company nor any Company Subsidiary is the subject of any pending, or to
the
knowledge of the Company, threatened investigation by the FDA pursuant to its
“Fraud, Untrue Statements of Material Facts, Bribery and Illegal Gratuities”
Final Policy set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any
amendments thereto, or by any other comparable Governmental Authority to invoke
substantially similar policies. Neither the Company, nor any of the Company
Subsidiaries, nor, to the knowledge of the Company, any officer, key employee
or
agent of the Company or any of the Company Subsidiaries, has been convicted
of
any crime or engaged in any conduct that has resulted, or would reasonably
be
expected to result, in debarment under 21 U.S.C Section 335(a) or any similar
state law or regulation under 42 U.S.C Section 1320a-7.
Section
5.16 Taxes.
(a) Except
as
set forth in Section
5.16
of the
Company Disclosure Schedule or as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect:
(i) all
Tax
Returns required to be filed by or with respect to the Company or any of the
Company Subsidiaries have been filed (except those under valid extension) and
such Tax Returns are true, complete, and correct;
(ii) all
Taxes
due and payable by the Company or any of the Company Subsidiaries have been
timely paid, withheld, or adequately provided
34
for
in
accordance with GAAP on the Company’s most recent consolidated financial
statements;
(iii) neither
the Company nor any of the Company Subsidiaries has received written notice
of
any proceeding or audit against, or with respect to any Taxes of, the Company
or
any of the Company Subsidiaries that has not been finally resolved;
(iv) neither
the Company nor any of the Company Subsidiaries has granted any extension or
waiver of the limitation period applicable to any income Tax Returns;
(v) there
are
no liens for Taxes (other than Permitted Liens) upon any of the assets of the
Company or any of the Company Subsidiaries;
(vi) neither
the Company nor any of the Company Subsidiaries is a party to or is bound by
any
Tax sharing, allocation, or indemnification agreement (other than such an
agreement exclusively between or among the Company and the Company
Subsidiaries); and
(vii) neither
the Company nor any of the Company Subsidiaries (A) has been a member of a
group
filing a consolidated, combined or unitary Tax Return (other than a group the
common parent of which was the Company) or (B) has any liability for the Taxes
of any Person (other than the Company or any of the Company Subsidiaries) under
Treasury regulation section 1.1502-6 (or any similar provision of state, local
or foreign law).
(b) Neither
the Company nor any of Company Subsidiary has been a party to any “reportable
transaction” within the meaning of U.S. Treasury Regulations Section
1.6011-4(b)(1).
(c) During
the
30-month period ending on the date hereof, neither the Company nor any Company
Subsidiary was a distributing corporation or a controlled corporation in a
transaction intended to be governed by Section 355 of the Code.
Section
5.17 Environmental
Matters.
(a) Except
as
would not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect:
(i) the
Company and the Company Subsidiaries (i) are and have been in compliance with
all Environmental Laws, (ii) hold and have held all permits, approvals,
identification numbers, licenses and other authorizations required under any
Environmental Law to own or operate their assets as currently owned and operated
(the “Environmental
Permits”)
and
(iii) are and have been in compliance with the respective Environmental
Permits;
35
(ii) there
has
been no Release or threatened Release of any Hazardous Substance at, on, under
or from any real property owned or leased by the Company or the Company
Subsidiaries or any other location; and
(iii) neither
the Company nor any Company Subsidiary has received any notice alleging that
the
Company or any Company Subsidiary may be in violation of, or liable under or
relating to, any Environmental Law or in connection with any use, presence
or
Release of Hazardous Substances.
(b) To
the
knowledge of the Company, there has been no material environmental
investigation, study, audit, test, review or other analysis conducted in
relation to the current or prior business of the Company or any Company
Subsidiary or any property or facility now or previously owned, leased or
operated by the Company or any Company Subsidiary which has not been made
available to Parent.
Section
5.18 Real
Property.
(a) Section
5.18(a) of
the
Company Disclosure Schedule sets forth the address of each parcel of real
property owned by the Company or any of the Company Subsidiaries (the
“Owned
Real Property”)
as of
the date hereof. True and complete copies of all deeds, existing title insurance
policies and surveys, and all other material instruments, agreements and
documents of or pertaining to the Owned Real Property have been made available
(or will be made available as soon as reasonably practicable following the
date
hereof) by the Company to Parent.
(b) Section
5.18(b) of
the
Company Disclosure Schedule sets forth the address of each material parcel
of
leasehold or subleasehold estates and other material rights to use or occupy
any
land or improvements held by or for the Company or the Company Subsidiaries
(the
“Leased
Real Property”)
as of
the date hereof. True and complete copies of all leases and such other documents
relating to the Leased Real Property (including all extensions, supplements,
amendments and other modifications thereof, waivers thereunder, and
nondisturbance agreements, if any, relating thereto) have been made available
(or will be made available as soon as reasonably practicable following the
date
hereof) by the Company to Parent.
(c) The
Company and the Company Subsidiaries have good and marketable, fee simple title
to, or valid leasehold interests in (other than those that have expired or
been
terminated by operation of their terms since the date hereof), as the case
may
be, the Owned Real Property and the Leased Real Property.
Section
5.19 Material
Contracts.
(a) Other
than
any “material contract” (as such term is defined in Item 601(b)(10) of
Regulation S-K under the Securities Act) filed as an exhibit to the Company
SEC
Reports, Section
5.19(a)(i)
of the
Company Disclosure Schedule lists each Contract to which the Company or any
Company Subsidiary is a party or by which any of their respective properties
or
assets are bound (each such Contract, including (i) any Contract filed as an
exhibit to the Company SEC Reports and (ii) any Contract set forth
36
on
Section
5.19(a)(ii)
of the
Company Disclosure Schedule, being a “Company
Material Contract”):
(a)
that is material and was not entered into in the ordinary course of business;
(b) that purports to limit the right of the Company or the Company Subsidiaries
to engage or compete in any activity or line of business or to compete with
any
person or operate in any location; (c) that is a loan or credit agreement,
mortgage, promissory note, indenture or other Contract evidencing indebtedness
for borrowed money in an amount in excess of Twenty Five Million Dollars
($25,000,000) by the Company or any of the Company Subsidiaries; or (d) that
relates to any swap, forward, futures, warrant, option or other derivative
transaction.
(b) Notwithstanding
anything in this Section
5.19
,
“Company Material Contract” shall not include any Contract that (i) is
terminable upon one hundred twenty (120) days’ or less notice without a penalty
premium, (ii) will be fully performed or satisfied as of or prior to the
Acceptance Time, or (iii) is solely between the Company and one or more Company
Subsidiaries or is solely between Company Subsidiaries.
(c) (i)
Neither the Company nor any Company Subsidiary is and, to the knowledge of
the
Company, no other party is in breach or violation of, or default under, in
any
material respect, any Company Material Contract, (ii) none of the Company or
any
Company Subsidiary has received any claim of default under any Company Material
Contract, and (iii) no event has occurred which would result in a breach or
violation of, or a default under, in any material respect, any Company Material
Contract (in each case, with or without notice or lapse of time or both). Each
Company Material Contract is valid, binding and enforceable in accordance with
its terms and is in full force and effect with respect to the Company or Company
Subsidiaries, as applicable, and, to the knowledge of the Company, with respect
to the other parties hereto.
Section
5.20 Interested
Party Transactions.
Except
as set forth in Section
5.20
of the
Company Disclosure Schedule or in the Company SEC Reports, each as amended
prior
to the date hereof, there are no Contracts or loans between the Company or
any
Company Subsidiary, on the one hand, and (a) any officer or director of the
Company, (b) any record or beneficial owner of five percent (5%) or more of
the
voting securities of the Company, or (c) any affiliate of any such officer,
director or record or beneficial owner, on the other hand.
Section
5.21 Brokers.
No
Person other than Xxxxxxx, Xxxxx & Co. 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 or on behalf
of
the Company or any Company Subsidiary.
Prior to
the date hereof, the Company has delivered or made available to Parent a true,
correct and complete copy of the engagement letter between the Company and
Xxxxxxx, Sachs & Co.
Section
5.22 Opinion
of Financial Advisor.
The
Company has received an opinion of Xxxxxxx, Xxxxx & Co., dated the date of
this Agreement, to the effect that, as of the date hereof, the consideration
to
be received by holders of Company Common Shares in the Offer and the Merger
is
fair, from a financial point of view, to such holders.
37
A
complete
copy of such opinion will be made available to Parent as soon as practicable
after the date of this Agreement
Section
5.23 Amendment
of Rights Plan; State Takeover Statute.
(a) The
Company has taken all necessary actions to render the Rights Agreement
inapplicable to the Offer, the Merger and the other transactions contemplated
by
this Agreement and to terminate the Rights Agreement as of the Merger Effective
Time.
(b) The
Company has taken all action necessary to exempt this Agreement, the Offer,
the
Merger and the other transactions contemplated hereby from the provisions of
Section 203 of the DGCL, and, accordingly, no such Section nor other
anti-takeover or similar statute or regulation applies or purports to apply
to
any such transactions. No other “control share acquisition,” “fair price,”
“moratorium” or other anti-takeover laws enacted under U.S. state or federal
laws apply to this Agreement or any of the transactions contemplated
hereby.
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES OF THE BUYER PARTIES
Parent
and
Purchaser hereby jointly and severally represent and warrant to the Company
as
follows:
Section
6.01 Organization.
Each of
the Buyer Parties has been duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its organization and has the
requisite corporate or other power and authority and all necessary governmental
approvals to own, lease and operate its properties and to carry on its business
as it is now being conducted, except where the failure to be so organized,
existing or in good standing or to have such power, authority and governmental
approvals would not have a Parent Material Adverse Effect.
Section
6.02 Ownership
of Purchaser; No Prior Activities.
Purchaser was formed solely for the purpose of engaging in the transactions
contemplated by this Agreement and has not engaged in any business activities
or
conducted any operations other than in connection with the transactions
contemplated by this Agreement. All the issued and outstanding shares of capital
stock of Purchaser are, and as of the Acceptance Time and the Closing Date
will
be, owned of record and beneficially by Parent and/or a wholly owned subsidiary
of Parent.
Section
6.03 Power
and Authority.
Each of
the Buyer Parties has all necessary corporate or other power and authority
to
execute and deliver this Agreement, to perform its obligations hereunder and
to
consummate the transactions contemplated by this Agreement. The execution and
delivery of this Agreement by each of the Buyer Parties and the consummation
by
the Buyer Parties of the transactions contemplated by this Agreement have been
duly and validly authorized by all necessary corporate action,
38
and
no
other corporate proceedings on the part of the Buyer Parties are necessary
to
authorize this Agreement or to consummate the transactions contemplated by
this
Agreement. This Agreement has been duly and validly executed and delivered
by
the Buyer Parties and, assuming due authorization, execution and delivery by
the
Company, constitutes a legal, valid and binding obligation of each of the Buyer
Parties enforceable against each of the Buyer Parties in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar Laws
or
by general equity principles.
Section
6.04 No
Conflict; Required Filings and Consents.
(a) The
execution and delivery of this Agreement by each of the Buyer Parties do not,
and the performance of each of the Buyer Parties’ obligations hereunder will
not, (i) conflict with or violate the organizational documents of Parent or
the
certificate of incorporation or bylaws of Purchaser, (ii) assuming that all
consents, approvals, authorizations and other actions described in subsection
(b) of this Section
6.04
have been
obtained and all filings and obligations described in subsection (b) of this
Section
6.04
have been
made, conflict with or violate any Law applicable to any of the Buyer Parties,
or by which any of its properties or assets is bound, or (iii) result in any
breach of, or constitute a default (or an event which, with notice or lapse
of
time or both, would become a default) under, or give to others any rights of
termination, amendment, acceleration, prepayment or cancellation of, or result
in the creation of a Lien or other encumbrance on any of its properties or
assets pursuant to, Contract to which it is a party or by which it or any of
its
properties or assets is bound or any Permit affecting, or relating in any way
to, the assets or business of the Company and the Company Subsidiaries, except,
with respect to clauses (ii) and (iii), for any such conflicts, violations,
breaches, defaults or other occurrences that would not prevent or delay
consummation of the Merger or otherwise prevent it from performing its
obligations under this Agreement.
(b) The
execution and delivery of this Agreement by each of the Buyer Parties does
not,
and the performance of each of the Buyer Parties’ obligations hereunder and
thereunder will not, require any consent, approval, authorization or permit
of,
or filing with, or notification to, any Governmental Authority, except (i)
for
(A) applicable requirements, if any, of the Exchange Act, (B) the pre-merger
notification requirements of the HSR Act, (C) compliance with the Antitrust
Laws
in the jurisdictions listed in Section
5.05(b)
of the
Company Disclosure Schedule, (D) if applicable, filings and notice requirements
under the rules and regulations of the NYSE and the United Kingdom Financial
Services Authority, and (D) the filing of the Certificate of Merger pursuant
to
the DGCL, (F) the filing of customary applications and notices, as applicable,
with the FDA, EMEA or PMDA, and (G) any registration, filing or notification
required pursuant to state securities or blue sky laws and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not, individually or in the aggregate,
reasonably be expected to have a Parent Material Adverse Effect.
39
Section
6.05 Information
Supplied.
None of
the information supplied or to be supplied by Parent or Purchaser specifically
for inclusion or incorporation by reference in (a) the Offer Documents, (b)
the
Schedule 14D-9 (including the information required by Section 14(f) of the
Exchange Act and Rule 14f−1 thereunder) or (c) the Proxy/Information Statement,
as required, will, (i) in the case of the Offer Documents and the Schedule
14D-9, at the respective times the Offer Documents and the Schedule 14D-9 are
filed with the SEC or first published, sent or given to the Company
Stockholders, or (ii) in the case of the Proxy/Information Statement, at the
time the Proxy/Information Statement is first mailed to the Company Stockholders
or at the time of the Company Stockholders Meeting, 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. No representation
is
made by the Buyer Parties with respect to statements made or incorporated by
reference therein based on information supplied by or on behalf of the Company
in connection with the preparation of the Proxy/Information
Statement.
Section
6.06 Absence
of Litigation.
There is
no Action pending or, to the knowledge of Parent, threatened against Parent or
any of its subsidiaries or any of its or their respective properties or assets
except as would not, individually or in the aggregate, reasonably be expected
to
have a Parent Material Adverse Effect. None of Parent or its subsidiaries is
subject to any order, judgment, writ, injunction or decree, except as would
not,
individually or in the aggregate, reasonably be expected to have a Parent
Material Adverse Effect.
Section
6.07 Availability
of Funds.
Parent
has available or committed to it and will have available or committed to it
through the expiration of the Offer and the Merger Effective Time, the funds
necessary to accept for payment and pay for any Company Common Shares pursuant
to the Offer and consummate the Merger and the other transactions contemplated
hereby.
Section
6.08 No
Ownership of Company Capital Stock.
Neither
Parent nor Purchaser, nor any of their respective Affiliates, owns, or at any
time during the past three (3) years has owned, any Company Common Shares or
any
option, warrant or other right to acquire any Company Common
Shares.
Section
6.09 Other
Agreements or Understandings.
Parent
has disclosed to the Company all contracts, arrangements or understandings
(and,
with respect to those that are written, Parent has furnished to the Company
correct and complete copies thereof) between or among Parent, Purchaser, or
any
affiliate of Parent, on the one hand, and any member of the board of directors
or management of the Company.
Section
6.10 Brokers.
No
broker, finder or investment banker (other xxxx Xxxxxxx Xxxxx & Co.) 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 or on behalf of Parent, Purchaser or any of their
affiliates.
40
Section
6.11 No
Additional Representations.
(a) Parent
acknowledges that it and its representatives have received access to such books
and records, facilities, equipment, contracts and other assets of the Company
which it and its representatives have desired or requested to review, and that
it and its representatives have had full opportunity to meet with the management
of the Company and to discuss the business and assets of the
Company.
(b) Parent
acknowledges that neither the Company nor any person has made any representation
or warranty, express or implied, as to the accuracy or completeness of any
information regarding the Company furnished or made available to Parent and
its
representatives except as expressly set forth in this Agreement (which includes
the Company Disclosure Schedule and the Company SEC Reports), and neither the
Company nor any other person shall be subject to any liability to Parent or
any
other person resulting from the Company’s making available to Parent or Parent’s
use of such information, or any information, documents or material made
available to Parent in the due diligence materials provided to Parent, including
in the “data room,” management presentations (formal or informal) or in any
other form in connection with the transactions contemplated by this Agreement.
Without limiting the foregoing, the Company makes no representation or warranty
to Parent with respect to any financial projection or forecast relating to
the
Company or any of the Company Subsidiaries.
ARTICLE
VII
CONDUCT
OF
BUSINESS PENDING THE MERGER
Section
7.01 Conduct
of Business by the Company Pending the Merger.
From
the
date hereof until such time as Parent’s designees shall constitute a majority of
the Company Board, except as required or expressly permitted by this Agreement
or as set forth in Section
7.01
of the
Company Disclosure Schedule and except with the prior written consent of Parent
which consent shall not be unreasonably withheld or delayed, the Company shall,
and shall cause each of the Company Subsidiaries, to conduct its business in
the
ordinary course and shall use its commercially reasonable efforts to preserve
substantially intact the business organization of the Company and the Company
Subsidiaries and to preserve the current relationships of the Company and the
Company Subsidiaries with any persons with which the Company or any Company
Subsidiary has significant business relations. Except as required, permitted
or
otherwise contemplated by this Agreement or as set forth in Section
7.01
of the
Company Disclosure Schedule, neither the Company nor any Company Subsidiary
shall, between the date of this Agreement and such time as Parent’s designees
shall constitute a majority of the Company Board, do any of the following
without the prior written consent of Parent, which consent shall not be
unreasonably withheld or delayed:
(a) amend
or
otherwise change any provision of the Company Charter or Company Bylaws, or
similar organizational or governance documents (whether by merger, consolidation
or otherwise);
41
(b) amend
the
terms of any capital stock of the Company or any Company Subsidiary (in each
case, whether by merger, consolidation or otherwise);
(c) (i)
authorize for issuance, issue or sell or agree or commit to issue or sell any
shares of any class of capital stock of the Company or any Company Subsidiary
or
any options, warrants, convertible securities or other rights of any kind to
acquire any shares of such capital stock, or any other ownership interest,
of
the Company or any Company Subsidiary (including any “phantom” stock, “phantom”
stock rights, stock appreciation rights or stock based performance units),
other
than the issuance of Company Common Shares (A) pursuant to Company Stock Awards
and Company Warrants outstanding on the date hereof, (B) upon the award of
Company Stock Awards granted in the ordinary course of business consistent
with
past practice to new hires and (C) upon the conversion of the Convertible Notes
and upon exercise of the Call-Spread Warrants; (ii) repurchase, redeem or
otherwise acquire any capital stock, securities or equity equivalents, except
in
connection with the exercise of the Company Hedge Options or upon the exercise
of holders of Company Notes of their rights pursuant to Sections 3.02 of each
of
the indentures referred to in clauses (b) and (c) of the definition of
“Indentures”; (iii) declare, set aside or pay any dividends on, or make any
other actual, constructive or deemed distributions (whether in cash, shares,
property or otherwise) in respect of, any of its shares of capital stock, other
than dividends by any direct or indirect wholly owned Company Subsidiary to
the
Company or any other Company Subsidiary; or (iv) split, combine or reclassify
any of its shares, stock or other equity interests or issue or authorize the
issuance of any securities in respect of, in lieu of or in substitution for
shares of its shares, stock or other equity interests;
(d) acquire
(by merger, consolidation, acquisition of equity interests or assets, any other
business combination or otherwise) any corporation, partnership, limited
liability company, joint venture or other business organization (or division
thereof) or any property, for a purchase price exceeding Twenty Five Million
Dollars ($25,000,000) individually
or Seventy Five Million Dollars ($75,000,000) in
the
aggregate;
(e) sell,
lease, license, transfer or otherwise dispose of any of its properties or
assets, having a fair market value in excess of Twenty Five Million Dollars
($25,000,000) individually
or Seventy Five Million Dollars ($75,000,000) in
the
aggregate, except (A) sales of inventory in the ordinary course of business,
(B)
pursuant to written Contracts in force on the date of this Agreement, (C)
dispositions of obsolete or worthless assets; (D) pursuant to transactions
solely among the Company and the Company Subsidiaries;
(f) enter
into
any license agreement with respect to the Intellectual Property of a third
person or any Company Intellectual Property, except in the ordinary course
of
business consistent with past practice and as would not materially restrict
the
Company or any of the Company Subsidiaries in the operation of their businesses
as currently conducted or proposed by the Company to be conducted;
(g) take
(or
omit to take) any action that adversely affects, or would reasonably be expected
to adversely affect, any material patent or patent application, or
42
abandon
or
permit to lapse any rights to any material patent or patent application, in
each
case, of the Company or any Company Subsidiary;
(h) (i)
incur
any indebtedness for borrowed money or issue any debt securities or assume,
guarantee or endorse, or otherwise as an accommodation become responsible or
liable for, the obligations of any person (other than a Company Subsidiary)
for
borrowed money, other than (A) indebtedness for borrowed money incurred in
the
ordinary course of business consistent with past practice (which shall be deemed
to include, without limitation, draws or standby letters of credit under the
Company’s line of credit facility or other similar lines of credit) or (B)
indebtedness for borrowed money in an amount not in excess of Twenty Five
Million Dollars ($25,000,000) in the aggregate for the Company and the Company
Subsidiaries taken as a whole; or (ii) make any loans, advances or capital
contributions to, or investments in, any Person in an amount in excess of
Fifteen Million Dollars ($15,000,000) individually or Fifty Million Dollars
($50,000,000) in the aggregate, other than in or to any direct or indirect
wholly owned Company Subsidiary, except as permitted by Section
7.01(d);
(i) except
as
required by applicable Law, materially amend or terminate any Company Material
Contract or enter into any new Contract that, if entered into prior to the
date
of this Agreement, would have been required to be listed in Section
5.19
of the
Company Disclosure Schedule as a Company Material Contract;
(j) except
as
required by applicable Law or by the terms of the Plans, (i) increase the
compensation or benefits payable to its current or former directors, officers
or
employees other than increases awarded to employees with an aggregate annual
base salary of $250,000 or less, which are made in the ordinary course of
business consistent with past practice or (ii) grant to any current or former
director, officer or employee of the Company or of any Company Subsidiary any
new severance, change of control or termination pay, grant any increase in,
or
otherwise alter or amend, any right to receive any severance, change of control
or termination pay or benefits or establish, adopt, enter into or amend any
Plan, agreement or arrangement relating to benefits under any collective
bargaining, bonus, profit sharing, thrift, compensation, stock option,
restricted stock, pension, retirement, deferred compensation, employment, loan,
retention, consulting, indemnification, termination, severance or other similar
plan, agreement, trust, fund, policy or arrangement with any current or former
director, officer or employee;
(k) except
as
required by Law or changes in GAAP which become effective after the date of
this
Agreement, or as recommended by the Company’s audit committee or independent
auditors, in which case the Company shall notify Parent, materially change
any
of its accounting policies (whether for financial accounting or Tax
purposes);
(l) except
as
required by Law or changes in GAAP which become effective after the date of
this
Agreement, change an annual Tax accounting period, adopt or materially change
any Tax accounting method, file any material amended Tax Return,
43
or
settle
a material Tax claim or assessment, in each case, relating to the Company or
a
Company Subsidiary;
(m) authorize,
or enter into any commitment for, any new material capital expenditure (such
authorized or committed new material capital expenditures being referred to
hereinafter as the “Capital
Expenditures”)
other
than (i) Capital Expenditures set forth on Section
7.01(m)
of the
Company Disclosure Schedule and (ii) any other individual Capital Expenditures
not exceeding Twenty Five Million Dollars ($25,000,000) in the
aggregate;
(n) pay,
discharge, settle or satisfy any material litigation, arbitrations, proceedings,
claims, liabilities or obligations (including with respect to Company
Intellectual Property) other than any settlement, payment, discharge or
satisfaction where the amounts paid or to be paid (i) are covered by insurance
coverage maintained by the Company or (ii) in an amount less than Twenty Five
Million Dollars ($25,000,000) in
the
aggregate;
(o) fail
to
use commercially reasonable efforts to maintain existing insurance policies
or
comparable replacement policies to the extent available for a reasonable
cost;
(p) adopt
a
plan or agreement of complete or partial liquidation or dissolution, merger,
consolidation, recapitalization or other similar reorganization;
(q) withdraw
or modify, nor permit the withdrawal or modification of, the Compensation
Arrangement Approvals; or
(r) announce
an intention, enter into any agreement or otherwise make a commitment, to do
any
of the foregoing.
Section
7.02 Conduct
of Business by Buyer Parties Pending the Merger.
The
Buyer Parties agree that, between the date of this Agreement and the Merger
Effective Time, except as contemplated by this Agreement, they shall not,
directly or indirectly, without the prior written consent of the Company, take
or cause to be taken any action that (a) could be expected to materially delay
or impair the consummation of the transactions contemplated by this Agreement,
or propose, announce an intention, enter into any agreement or otherwise make
a
commitment to take any such action, or (b) would cause any of the
representations or warranties of the Buyer Parties contained herein to become
inaccurate in any material respect or any of the covenants of the Buyer Parties
to be breached in any material respect.
44
ARTICLE
VIII
ADDITIONAL
AGREEMENTS
Section
8.01 Company
Proxy/Information Statement; Other Filings; Stockholders’
Meeting.
(a) If
approval of the Company Stockholders is required under the DGCL in order to
consummate the Merger other than pursuant to Section 253 of the DGCL, as soon
as
practicable following the later of the Acceptance Time or the expiration of
any
subsequent offering period provided in accordance with Rule 14d-11 under the
Exchange Act, the Company shall prepare and, after consultation with Parent,
file with the SEC the Proxy/Information Statement, and each of the Company
and
Parent shall, or shall cause their respective affiliates to, prepare and, after
consultation with each other, file with the SEC all Other Filings that are
required to be filed by such party in connection with the transactions
contemplated hereby. Parent and the Company shall cooperate with one another
in
connection with the preparation of the Proxy/Information Statement and shall
furnish all information concerning such party as the other party may reasonably
request in connection with the preparation of the Proxy/Information Statement.
Parent and the Company shall each use its reasonable best efforts to have the
Proxy/Information Statement cleared by the SEC as promptly as reasonably
practicable after such filing. The Company will use reasonable best efforts
to
cause the Proxy/Information Statement to be mailed to the Company Stockholders
as promptly as reasonably practicable after the Proxy/Information Statement
is
cleared by the SEC.
(b) Each
of
Parent and the Company shall as promptly as practicable notify the other of
(i)
the receipt of any comments from the SEC and all other written correspondence
and oral communications with the SEC relating to the Proxy/Information Statement
and (ii) any request by the SEC for any amendment or supplement to the
Proxy/Information Statement or for additional information with respect thereto.
All filings by the Company with the SEC in connection with the transactions
contemplated hereby, including the Proxy/Information Statement and any amendment
or supplement thereto, shall be subject to the reasonable prior review and
comment of Parent, and all mailings to the Company Stockholders in connection
with the Merger and transactions contemplated by this Agreement shall be subject
to the reasonable prior review and comment of Parent. All filings by Parent
with
the SEC in connection with the transactions contemplated hereby shall be subject
to the prior review and comment of the Company.
(c) If
at any
time prior to the Merger Effective Time any information relating to the Company,
Parent or Purchaser, or any of their respective Affiliates, directors or
officers, is discovered by the Company, Parent or Purchaser, which should be
set
forth in an amendment or supplement to the Proxy/Information Statement or Other
Filings, so that the Proxy/Information Statement or Other Filings would not
include any misstatement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, the party which discovers such information
shall promptly notify the other parties and an appropriate amendment or
supplement describing such information shall
45
be
promptly filed with the SEC and, to the extent required by law, disseminated
to
the Company Stockholders.
(d) If
approval of the Company Stockholders is required under the DGCL in order to
consummate the Merger other than pursuant to Section 253 of the DGCL, the
Company, acting through the Company Board, shall, in accordance with the Company
Charter and Company Bylaws and applicable Law and the Nasdaq Marketplace Rules,
promptly and duly call, give notice of, convene and hold as soon as practicable
following the date upon which the Proxy/Information Statement is cleared by
the
SEC, a meeting of the holders of Common Shares (the “Company
Stockholders’ Meeting”)
for the
sole purpose of seeking the Company Stockholder Approval and shall
(i) except as otherwise provided in Section
8.03,
recommend the approval and adoption of this Agreement by the Company
Stockholders and include
in
the Proxy/Information Statement such recommendation and the opinion of Xxxxxxx,
Xxxxx & Co., dated as of the date hereof, to the extent set forth in
Section
5.22
and (ii)
use its reasonable best efforts to solicit such adoption.
(e) Each
of
Parent and Purchaser shall vote all Company Common Shares acquired in the Offer
(or otherwise beneficially owned by it or any of its respective subsidiaries
as
of the applicable record date) in favor of the adoption of this Agreement in
accordance with the DGCL at the Company Stockholders’ Meeting or otherwise.
Parent shall vote all of the shares of capital stock of Purchaser beneficially
owned by it in favor of the adoption of this Agreement in accordance with the
DGCL.
(f) Notwithstanding
anything to the contrary in this Agreement, in the event that Purchaser shall
acquire at least ninety percent (90%) of the issued and outstanding Company
Common Shares pursuant to the Offer or otherwise, each of Parent, Purchaser
and
the Company shall take all necessary and appropriate action to cause the Merger
to become effective as soon as practicable after such acquisition, without
a
meeting of the Company Stockholders, in accordance with Section 253 of the
DGCL.
Section
8.02 Access
to Information; Confidentiality.
(a) Upon
reasonable prior notice and subject to applicable Law, from the date hereof
until the earlier to occur of the termination of this Agreement in accordance
with Section
10.01
and the
Merger Effective Time, the Company shall, and shall cause the Company
Subsidiaries and the officers, directors, employees, auditors and agents of
the
Company and the Company Subsidiaries to afford Parent, following notice from
Parent to the Company in accordance with this Section
8.02,
reasonable access during normal business hours to the officers, employees,
agents, properties, offices, plants and other facilities, Contracts, books
and
records of the Company and the Company Subsidiaries, and all other financial,
operating and other data and information as Parent may reasonably request.
Notwithstanding the foregoing the Company and the Company Subsidiaries shall
not
be obligated to disclose any information if the Company, in its reasonable
judgment, determines that doing so would (i) violate any applicable Law, (ii)
result in the loss of attorney-client privilege with respect to such information
or (iii) result in a breach of an agreement to which the Company or any of
the
Company
46
Subsidiaries
is a party. Parent shall schedule and coordinate all inspections with the
Company and shall give the Company at least three (3) Business Days prior
written notice thereof, setting forth the inspection or materials that Parent
or
its representatives intend to conduct or review, as applicable. The Company
shall be entitled to have representatives present at all times during any such
inspection. No investigation pursuant to this Section
8.02
or
information provided, made available or delivered to Parent pursuant to this
Section
8.02
shall
affect any representations or warranties made herein or the conditions to the
obligations of the respective parties to consummate the Merger.
(b) Prior
to
the Merger Effective Time, all information obtained by Parent pursuant to this
Section
8.02
shall be
kept confidential in accordance with the confidentiality agreement dated March
23, 2007 between Parent and the Company (the “Confidentiality
Agreement”).
Section
8.03 No
Solicitation of Transactions by the Company.
(a) At
all
times during the period commencing with the execution and delivery of this
Agreement and continuing until the earlier to occur of the termination of this
Agreement pursuant to Section
10.01
hereof
and the Acceptance Time, none of the Company or any Company Subsidiary shall,
nor shall it authorize or permit, directly or indirectly, any officer, trustee,
director, employee, investment banker, financial advisor, attorney, broker,
finder or other agent, representative or affiliate of the Company or any Company
Subsidiary to, (i) initiate, solicit, knowingly encourage or knowingly
facilitate (including by way of furnishing nonpublic information or assistance
or access to properties or assets) any inquiries or the making of any proposal
or other action that constitutes, or may reasonably be expected to lead to,
any
Company Acquisition Proposal, (ii) enter into discussions or negotiate with
any
Person in furtherance of such inquiries or to obtain a Company Acquisition
Proposal, (iii) grant any Person any waiver or release under any standstill
or
similar agreement with respect to any class of equity securities of the Company
or any Company Subsidiary, (iv) take any action not already taken to make the
provisions of any “business combination” or other similar anti-takeover statute
or regulation (including approving any transaction under Section 203 of the
DGCL), any restrictive provision of any applicable anti-takeover provision
in
the Company Charter or Company Bylaws or under the Rights Agreement inapplicable
to any transactions contemplated by a Company Acquisition Proposal, or (v)
enter
into an agreement, including any agreement in principle (other than a
confidentiality agreement entered into in accordance with the provisions of
this
Section
8.03(a)
or as
expressly permitted by Section
8.03(b)),
with
respect to a Company Acquisition Proposal. Notwithstanding the foregoing or
any
other provision of this Agreement to the contrary, at any time prior to the
Acceptance Time, following the receipt after the date of this Agreement by
the
Company or any Company Subsidiary of a Company Acquisition Proposal (that was
not solicited, encouraged or facilitated in violation of this Section
8.03(a))
that the
Company Board determines in good faith after consultation with its legal and
financial advisors is, or is reasonably likely to lead to, a Company Superior
Proposal and that the failure to take the action specified in clause (x) or
(y)
below, as applicable, would be inconsistent with its fiduciary obligations
under
applicable Law, the Company Board may (directly or through advisors or
representatives), subject to Section
8.03(c),
47
(x)
engage
in negotiations or discussions with such Person who made such Company
Acquisition Proposal and its advisors; and/or (y) furnish non-public information
with respect to the Company and the Company Subsidiaries to the Person who
made
such Company Acquisition Proposal pursuant to a confidentiality agreement with
terms overall no less favorable to the Company than those contained in the
Confidentiality Agreement (a copy of which shall be provided, promptly after
its
execution, for informational purposes only to Parent, and which copy and the
terms and existence thereof shall be subject to the confidentiality obligations
imposed on Parent pursuant to the Confidentiality Agreement); provided
that all
such information (to the extent that such information has not been previously
provided or made or had been previously made available to Parent) is provided
to
Parent prior to or substantially concurrently with the time it is provided
or
made available to such Person.
(b) The
Company Board shall not, directly or indirectly, (i) (A) fail to make,
withdraw (or amend or modify in a manner adverse to Parent) or publicly propose
to withdraw (or amend or modify in a manner adverse to Parent), the Company
Board Recommendation (including pursuant to the Schedule 14D-9 or any amendment
thereto) or the approval of the Company Board of this Agreement and the
transactions contemplated hereby (it being understood that taking a neutral
position or no position with respect to any Company Acquisition Proposal, other
than a “stop, look and listen” or similar communication of the type contemplated
by Rule 14d-9(f) promulgated under the Exchange Act, shall be considered an
adverse modification) or (B) recommend, adopt or approve, or propose
publicly to recommend, adopt or approve, any Company Acquisition Proposal,
or
take any action or make any statement inconsistent with the Company Board
Recommendation (any action described in this clause (i) being referred to
as an “Adverse
Recommendation Change”)
or (ii) approve or recommend, or publicly propose to approve or
recommend, or allow the Company or any Company Subsidiary to execute or enter
into, any letter of intent, memorandum of understanding, agreement in principle,
merger agreement, acquisition agreement, option agreement, joint venture
agreement, partnership agreement or other similar agreement, arrangement or
understanding (A) constituting or that could reasonably be expected to lead
to
any Company Acquisition Proposal or (B) requiring it to abandon, terminate
or
fail to consummate the Offer or the Merger or any other transaction contemplated
by this Agreement. Notwithstanding the foregoing, at any time prior to the
Acceptance Time, and subject to the Company’s compliance with the other
provisions of this Section
8.03
as
applicable, the Company Board may make an Adverse Recommendation Change in
response to a Superior Proposal, or a material event, development or change
in
circumstance that occurs, arises or becomes known to the Company Board following
the date of this Agreement, if the Company Board determines in good faith after
consultation with its legal and financial advisors that the failure to take
such
action would be inconsistent with its fiduciary duties to the Company
Stockholders under applicable Law.
(c) The
Company shall promptly (and in all cases within 24 hours) advise Parent in
writing of any Company Acquisition Proposal, the terms and conditions of any
such Company Acquisition Proposal (including any changes thereto) and the
identity of the Person making any such Company Acquisition Proposal and of
any
discussions, explorations or negotiations sought to be entered into or continued
or
48
requests
for information or access to properties or assets made or requested by such
Person with the Company, any Company Subsidiary or any of their respective
directors, officers, employees or representatives. The Company shall keep Parent
reasonably informed, on a current basis, of the status (including any change
to
the terms and conditions thereof) of any such Company Acquisition Proposal
and
shall promptly (but in no event later than 24 hours after receipt) provide
to
Parent copies of all correspondence and written materials sent or provided
to
the Company or any Company Subsidiary that describe the material terms and
conditions of any Company Acquisition Proposal. The Company Board shall not
take
any of the actions referred to in clauses (x) and (y) of Section
8.03(a)
unless
the Company shall have delivered to Parent a prior written notice advising
Parent that it intends to take such action, and the Company shall continue
to
advise Parent after taking such action of the status and terms of any
discussions and negotiations with the Person who made the Company Acquisition
Proposal in accordance with this Section
8.03(c).
(d) The
Company shall, and shall cause the Company Subsidiaries and its and their
respective representatives to, cease immediately and cause to be terminated
any
and all existing soliciting activities, discussions or negotiations and
non-public information access, if any, with or to any Person conducted prior
to
the date hereof with respect to any Company Acquisition Proposal. The Company
shall promptly request that each Person, if any, in possession of the
confidential information about the Company or any of the Company Subsidiaries
that was furnished by or on behalf of the Company or any of the Company
Subsidiaries in connection with its consideration of any potential Company
Acquisition Proposal to return or destroy all confidential information
heretofore furnished to such Person.
(e) Nothing
in
this Section
8.03
or
elsewhere in this Agreement shall prevent the Company Board from disclosing
any
information required to be disclosed under applicable Law or from complying
with
Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect
to a
Company Acquisition Proposal. In addition, nothing in this Section
8.03
or this
Agreement shall prohibit the Company from taking any action that any court
of
competent jurisdiction orders the Company to take.
Section
8.04 Employee
Benefits Matters.
(a) From
and
after the Merger Effective Time, Parent shall honor and shall cause the
Surviving Corporation to honor all Plans, compensation arrangements and
agreements and employment, severance and termination plans and agreements in
accordance with their terms as in effect immediately before the Merger Effective
Time. For a period of one year following the Merger Effective Time (the
“Benefits
Continuation Period”),
Parent
shall provide, or shall cause to be provided, to each employee of the Company
and the Company Subsidiaries (“Company
Employees”)
(i) a
base salary and annual bonus and commission opportunity no less favorable than
the base salary and annual bonus and commission opportunity provided to such
employees immediately before the Merger Effective Time and (ii) employee
benefits that are substantially comparable, in the aggregate, to the benefits
provided to such employees immediately before the Merger Effective
Time.
49
(b) For
all
purposes (including purposes of vesting, eligibility to participate and level
of
benefits) under the employee benefit plans of Parent and its subsidiaries
providing benefits to any Company Employees after the Merger Effective Time
(the
“New
Plans”),
each
Company Employee shall, subject to applicable Law and applicable tax
qualification requirements, be credited with his or her years of service with
the Company and the Company Subsidiaries and their respective predecessors
before the Merger Effective Time, to the same extent as such Company Employee
was entitled, before the Merger Effective Time, to credit for such service
under
any similar Company employee benefit plan in which such Company Employee
participated or was eligible to participate immediately prior to the Merger
Effective Time; provided
that the
foregoing shall not apply to the extent that its application would result in
a
duplication of benefits. In addition, and without limiting the generality of
the
foregoing, (i) each Company Employee shall be immediately eligible to
participate, without any waiting time, in any and all New Plans to the extent
coverage under such New Plan is comparable to the Plan in which such Company
Employee participated immediately before the consummation of the Merger (such
plans, collectively, the “Old
Plans”),
and
(ii) (A) for purposes of each New Plan providing medical, dental, pharmaceutical
or vision benefits to any Company Employee, Parent shall cause all pre-existing
condition exclusions and actively-at-work requirements of such New Plan to
be
waived for such Company Employee and his or her covered dependents, unless
such
conditions would not have been waived under Old Plan of the Company or its
subsidiaries in which such Company Employee participated immediately prior
to
the Merger Effective Time and (B) Parent shall cause any eligible expenses
incurred by such employee and his or her covered dependents during the portion
of the plan year of the Old Plan ending on the date such employee’s
participation in the corresponding New Plan begins to be taken into account
under such New Plan for purposes of satisfying all deductible, coinsurance
and
maximum out-of-pocket requirements applicable to such employee and his or her
covered dependents for the applicable plan year as if such amounts had been
paid
in accordance with such New Plan.
(c) With
respect to annual bonus arrangements for Company Employees who are not covered
by commission plans of the Company for fiscal year 2007, the Company shall
determine for each Company Employee a pro-rata portion (the “Pro-Rata
Payments”)
of his
or her target annual bonus (determined as if all performance targets have been
met) for fiscal year 2007 multiplied by a fraction, the numerator of which
is
the number of days in calendar year 2007 prior to the Closing Date, the
denominator of which is 365. Following the Closing Date, Parent agrees to
continue the annual bonus arrangements for Company Employees for fiscal year
2007 in accordance with their terms for the remainder of fiscal year 2007;
provided
that each
Company Employee who is employed as of the Effective Time and either (A)
continues in employment as of December 31, 2007 or (B) ceases employment prior
to December 31, 2007 due to a termination by the Company without good cause
shall be entitled upon the completion of fiscal year 2007 to a bonus payment
under the applicable bonus plan equal to at least the employee’s applicable
Pro-Rata Payment. All annual bonus arrangements for Company Employees for fiscal
year 2006 that have not been paid prior to the date hereof will be paid in
accordance with their terms. The bonus plans for fiscal years 2006 and 2007
(including the Pro-Rata Payments) shall be calculated without taking into
account any expenses or costs associated with or arising as a result of
transactions
50
contemplated
by this Agreement (including any expenses or costs related to actions undertaken
in anticipation of the transactions contemplated by this Agreement) or any
non-recurring charges that would not reasonably be expected to have been
incurred had the transactions contemplated by this Agreement not been
anticipated or occurred, and bonus amounts for the 2006 and 2007 fiscal years
shall not be subject to negative discretion by the administrator for the bonus
plans (except to the extent that negative discretion, if any, has historically
been applied with respect to any employee or is clearly appropriate under the
design of the bonus arrangement).
(d) Parent
and
Purchaser shall, and following the Merger Effective Time shall cause the
Surviving Corporation to, take all actions necessary or advisable to implement
the employee retention arrangements contemplated in Section
8.04(d)
of the
Company Disclosure Schedule.
(e) Prior
to
the Merger Effective Time, the Company Board, or an appropriate committee of
non-employee directors thereof, shall adopt a resolution consistent with the
interpretive guidance of the SEC so that the disposition by any officer or
director of the Company who is a covered person of the Company for purposes
of
Section 16 of the Exchange Act and the rules and regulations thereunder
(“Section
16”)
of
Company Common Shares or Company Stock Options to acquire Company Common Shares
(or Company Common Shares acquired upon the vesting of any Company Stock Awards)
pursuant to this Agreement and the Merger shall be an exempt transaction for
purposes of Section 16.
Section
8.05 Directors’
and Officers’ Indemnification and Insurance of the Surviving
Corporation.
(a) Without
limiting any additional rights that any director, officer, trustee, employee,
agent, or fiduciary may have under any employment or indemnification agreement
or under the Company Charter, Company Bylaws or this Agreement or, if
applicable, similar organizational documents or agreements of any of the Company
Subsidiaries, from and after the Merger Effective Time, Parent and the Surviving
Corporation shall: (i) indemnify and hold harmless each person who is at the
date hereof or during the period from the date hereof through the Closing Date
serving as a director, officer, trustee, employee, agent, or fiduciary of the
Company or Company Subsidiaries or as a fiduciary under or with respect to
any
employee benefit plan (within the meaning of Section 3(3) of ERISA)
(collectively, the “Indemnified
Parties”)
to the
fullest extent authorized or permitted by applicable Law, as now or hereafter
in
effect, in connection with any Claim and any judgments, fines, penalties and
amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such judgments,
fines, penalties or amounts paid in settlement) resulting therefrom with respect
to any employee benefit plan (within the meaning of Section 3(3) of ERISA);
and
(ii) promptly pay on behalf of or, within thirty (30) days after any request
for
advancement, advance to each of the Indemnified Parties, to the fullest extent
authorized or permitted by applicable Law, as now or hereafter in effect, any
Expenses incurred in defending, serving as a witness with respect to or
otherwise participating in any Claim in advance of the final disposition of
such
Claim,
51
including
payment on behalf of or advancement to the Indemnified Party of any Expenses
incurred by such Indemnified Party in connection with enforcing any rights
with
respect to such indemnification or advancement, in each case without the
requirement of any bond or other security; provided,
however,
that
such advance shall be conditioned upon the Surviving Company’s receipt of an
undertaking by or on behalf of the Indemnified Party to repay such amount if
it
shall ultimately be determined by final judgment of a court of competent
jurisdiction that the Indemnified Party is not entitled to be indemnified
pursuant to this Section
8.05(a).
The
indemnification and advancement obligations of Parent and the Surviving
Corporation pursuant to this Section
8.05(a)
shall
extend to acts or omissions occurring at or before the Merger Effective Time
and
any Claim relating thereto (including with respect to any acts or omissions
occurring in connection with the approval of this Agreement and the consummation
of the transactions contemplated hereby, including the consideration and
approval thereof and the process undertaken in connection therewith and any
Claim relating thereto), and all rights to indemnification and advancement
conferred hereunder shall continue as to a person who continues to be or who
has
ceased to be a director, officer, trustee, employee, agent, or fiduciary of
the
Company or the Company Subsidiaries after the date hereof and shall inure to
the
benefit of such person’s heirs, executors and personal and legal
representatives. Neither Parent nor the Surviving Corporation shall settle,
compromise or consent to the entry of any judgment in any actual or threatened
claim, demand, Action, suit, proceeding, inquiry or investigation in respect
of
which indemnification has been or could be sought by such Indemnified Party
hereunder unless such settlement, compromise or judgment includes an
unconditional release of such Indemnified Party from all liability arising
out
of such claim, demand, Action, suit, proceeding, inquiry or investigation or
such Indemnified Party otherwise consents thereto.
Any
Indemnified Party wishing to claim indemnification under this Section
8.05(a),
upon
learning of any claim, demand, Action, suit, proceeding, inquiry or
investigation relating to any acts or omissions covered under this Section
8.05(a),
shall
notify Parent and the Surviving Corporation thereof, provided, that the failure
to so notify shall not affect the obligations of the Company or Parent, as
applicable, under this Section
8.05(a),
except
to the extent such failure to notify materially prejudices Parent or the
Surviving Corporation, as applicable.
(b) Without
limiting the foregoing, Parent and Purchaser agree that all rights to
indemnification and exculpation from liabilities for acts or omissions occurring
at or prior to the Merger Effective Time now existing in favor of the current
or
former directors, officers, trustees, employees, agents, or fiduciaries of
the
Company or any of the Company Subsidiaries as provided in the Company Charter
and Company Bylaws (or, as applicable, the charter, bylaws, partnership
agreement, limited liability company agreement, or other organizational
documents of any of the Company Subsidiaries) and indemnification agreements
of
the Company or any of the Company Subsidiaries identified on Section
8.05(b)
of the
Company Disclosure Schedule shall be assumed by the Surviving Corporation in
the
Merger, without further action, at the Merger Effective Time and shall survive
the Merger and shall continue in full force and effect in accordance with their
terms.
52
(c) For
a
period of six (6) years from the Merger Effective Time, the organizational
documents of the Surviving Corporation shall contain provisions no less
favorable with respect to indemnification than are set forth in the Company
Charter and Company Bylaws, which provisions shall not be amended, repealed
or
otherwise modified for a period of six (6) years from the Merger Effective
Time
in any manner that would affect adversely the rights thereunder of the
Indemnified Parties, unless such modification shall be required by Law and
then
only to the minimum extent required by Law.
(d) The
Surviving Corporation shall maintain for a period of at least six (6) years
the
current policies of directors’ and officers’ liability insurance maintained by
the Company and the Company Subsidiaries with respect to Claims arising from
facts or events that occurred on or before the Merger Effective Time, including,
without limitation, in respect of the transactions contemplated by this
Agreement; provided,
that (i)
the Surviving Corporation may substitute therefor policies of at least the
same
coverage and amounts containing terms and conditions which are, in the
aggregate, no less advantageous to the insured; provided,
further,
that
such substitution shall not result in gaps or lapses of coverage with respect
to
matters occurring before the Merger Effective Time and (ii) in no event shall
the Surviving Corporation be required to expend pursuant to this Section
8.05(d)
more than
an amount per year of coverage equal to three hundred percent (300%) of the
current annual premiums paid by the Company for such insurance. In the event
that, but for the proviso to the immediately preceding sentence, the Surviving
Corporation would be required to expend more than three hundred percent (300%)
of the current annual premiums paid by the Company, the Surviving Corporation
shall obtain the maximum amount of such insurance obtainable by payment of
annual premiums equal to three hundred percent (300%) of the current annual
premiums paid by the Company. Parent shall, and shall cause the Surviving
Corporation or its successors or assigns to, maintain such policies in full
force and effect, and continue to honor all obligations thereunder.
(e) If
the
Surviving Corporation or any of its respective successors or assigns (i)
consolidates with or merges with or into any other person and shall not be
the
continuing or surviving limited liability company, partnership or other entity
of such consolidation or merger or (ii) transfers or conveys all or
substantially all of its properties and assets to any person, then, and in
each
such case, proper provision shall be made so that the successors and assigns
of
the Surviving Corporation assume the obligations set forth in this Section
8.05.
(f) Parent
shall cause the Surviving Corporation to perform all of the obligations of
the
Surviving Corporation under this Section
8.05
and the
parties acknowledge and agree that Parent guarantees the payment and performance
of the Surviving Corporation’s obligations pursuant to this Section
8.05.
(g) This
Section
8.05
is
intended for the irrevocable benefit of, and to grant third party rights to,
the
Indemnified Parties and shall be binding on all successors and assigns of the
Company, Parent and the Surviving Corporation. Each of the
53
Indemnified
Parties shall be entitled to enforce the covenants contained in this
Section
8.05.
Section
8.06 Further
Action; Reasonable Best Efforts.
Subject
to the terms and conditions herein provided, as promptly as practicable, the
Company, Parent and Purchaser shall (i) make all filings and submissions under
the HSR Act and under the Antitrust Laws of the jurisdictions listed in
Section
5.05(b)
of the
Company Disclosure Schedule, (ii) use reasonable best efforts to cooperate
with each other in (A) determining which other filings are required or
advisable to be made prior to the Acceptance Time and the Merger Effective
Time
with, and which material consents, approvals, permits, notices or authorizations
are required or advisable to be obtained prior to the Acceptance Time and the
Merger Effective Time from, Governmental Authorities in connection with the
execution and delivery of this Agreement and related agreements and consummation
of the transactions contemplated hereby and thereby and (B) timely making all
such filings and timely seeking all such consents, approvals, permits, notices
or authorizations, and (iii) use reasonable best efforts to take, or cause
to be
taken, all other actions and do, or cause to be done, all other things necessary
or appropriate to consummate the transactions contemplated hereby as soon as
practicable. For purposes of this Section
8.06,
“reasonable best efforts” shall include (A) executing settlements, undertakings,
consent decrees, stipulations or other agreements, (B) selling, divesting,
holding separate or otherwise conveying any particular assets or categories
of
assets or businesses of Parent, (C) agreeing to sell, divest, hold separate
or
otherwise convey any particular assets or categories of assets or businesses
of
the Company contemporaneously with or subsequent to the Closing, and (D)
otherwise taking or committing to take actions that after the Closing Date
would
limit the freedom of action of Parent or its subsidiaries (including the
Surviving Corporation) with respect to, or its or their ability to retain,
one
or more of its or their businesses, product lines or assets, in each case as
may
be required in order to avoid the entry of, or to effect the dissolution of,
any
injunction, temporary restraining order or other order in any suit or proceeding
which would otherwise have the effect of preventing or materially delaying
the
Closing.
In
connection with the foregoing, the Company, on the one hand, will provide
Parent, and Parent, on the other hand, will provide the Company, promptly with
copies of material correspondence, filings or communications (and, in the case
of oral communications, oral summaries or memoranda setting forth the substance
thereof) between such party or any of its representatives, on the one hand,
and
any Governmental Authority or members of their respective staffs, on the other
hand, with respect to this Agreement and the transactions contemplated
hereby
and will
give the other party and its counsel a reasonable opportunity to review and
comment on any response or other communication formulated in connection with
such correspondence, filings or communications prior to delivery thereof to
any
such Governmental Authority.
Section
8.07 Public
Announcements.
Parent
and the Company have agreed upon the form and substance of a joint press release
announcing the execution of this Agreement and the transactions contemplated
hereby, which shall be issued promptly following the execution and delivery
hereof. Parent and the Company shall reasonably consult with each other and
consider in good faith the views of the other party before issuing any other
press release or making any other public statement, or scheduling any
54
press
conference or conference call with investors or analysts, with respect to this
Agreement or the transactions contemplated hereby and, except as may be required
by applicable Law, order of a court of competent jurisdiction or any listing
agreement with or rule of any applicable securities exchange or association,
shall not issue any such press release or make any such other public statement
or schedule any such press conference or conference call before such
consultation.
Section
8.08 State
Takeover Laws.
If any
“fair price,” “business combination” or “control share acquisition” statute or
other similar statute or regulation is or may become applicable to any
transaction contemplated by this Agreement, the parties shall use commercially
reasonable efforts to (a) take such actions as are reasonably necessary so
that
the transactions contemplated hereunder may be consummated as promptly as
practicable on the terms contemplated hereby and (b) otherwise take all such
actions as are reasonably necessary to eliminate or minimize the effects of
any
such statute or regulation on such transaction.
Section
8.09 Obligations
of Parent Relating to Call Spread Warrants.
Following the Acceptance Time, the Company shall, and Parent shall cause the
Company to, satisfy its payment obligations, if any, under the terms of the
Call
Spread Warrants.
Section
8.10 Compensation
Arrangements.
Prior to
the Effective Time, the Company (acting through its Compensation Committee)
will
take all steps that may be necessary or advisable to cause each Compensation
Arrangement entered into by the Company or any Company Subsidiary on or after
the date hereof to be approved by the Compensation Committee comprised solely
of
“independent directors” (described in the manner described in the last sentence
of Section
5.12(h))
as an
“employment compensation, severance or other employee benefit arrangement”
within the meaning of Rule 14d-10(d)(2) under the Exchange Act and to satisfy
the requirements of the non-exclusive safe harbor set forth in Rule 14d-10(d)
of
the Exchange Act.
Section
8.11 Notification
of Certain Matters.
The
Company shall give prompt notice to Parent, and Parent shall give prompt notice
to the Company, of (a) any notice or other communication received by such party
from any Governmental Authority in connection with the Offer, the Merger or
the
other transactions contemplated hereby or from any Person alleging that the
consent of such Person is or may be required in connection with such
transactions, and (b) any actions, suits, claims, investigations or proceedings
commenced or, to such party’s knowledge, threatened against, such party or any
of its subsidiaries and relating to the Offer, the Merger or the other
transactions contemplated hereby. Prior to the Acceptance Time, the Company
shall give prompt notice to Parent of any material agreements or modifications
of material agreements proposed to be entered into with any Governmental
Authority, including the FDA, in respect of the operation of the business of
the
Company or any Company Subsidiary. In addition, prior to the Acceptance Time,
the Company shall give prompt notice to Parent of any inaccuracy of any
representation or warranty of the Company contained in this Agreement, or any
failure of the Company to materially comply with any covenant or agreement
of
the Company set forth herein, at any time during the term of this Agreement
that
would reasonably be expected to cause the Offer Conditions set forth in clause
(2)(a)
55
or
(b) of
Annex I not to be satisfied or reasonably be expected to give rise to a
termination right pursuant to Section
10.01(e);
provided,
however,
that the
delivery of any notice pursuant to this Section
8.10
shall not
limit or otherwise affect the remedies available hereunder to the party
receiving that notice.
Section
8.12 Nasdaq
De-listing; Exchange Act Deregistration.
Prior to
the Closing Date, the Company shall cooperate with Parent and use reasonable
best efforts to take, or cause to be taken, all actions, and do or cause to
be
done all things, reasonably necessary, proper or advisable on its part under
applicable Laws and rules and policies of Nasdaq to enable the de-listing by
the
Surviving Corporation of the Company Common Stock from Nasdaq and the
deregistration of the Company Common Stock under the Exchange Act promptly
after
the Effective Time.
Section
8.13 Further
Assurances.
At and
after the Effective Time, the officers and directors of the Surviving
Corporation shall be authorized to execute and deliver, in the name and on
behalf of the Company or Merger Sub, any deeds, bills of sale, assignments
or
assurances and to take and do, in the name and on behalf of the Company or
Merger Sub, any other actions and things to vest, perfect or confirm of record
or otherwise in the Surviving Corporation any and all right, title and interest
in, to and under any of the rights, properties or assets of the Company acquired
or to be acquired by the Surviving Corporation as a result of, or in connection
with, the Merger. Each of the Company and Parent shall, and shall use its
commercially reasonable efforts to cause its representatives to, cooperate
with
the other party in making any determination or computation necessary or
appropriate with respect to the Convertible Notes, the Call Spread Warrants
and
the Company Hedge Option, including with respect to any cash amounts or Company
Common Shares that may be receivable, issuable, deliverable or payable by the
Company pursuant to the Indentures and any instrument representing the
Convertible Notes, the Call Spread Warrants and the Company Hedge
Option.
ARTICLE
IX
CONDITIONS
TO THE MERGER
Section
9.01 Conditions
to the Obligations of Each Party.
The
obligations of the Company, Parent and Purchaser to consummate the Merger are
subject to the satisfaction or waiver in writing (where permissible) of the
following conditions:
(a) If
the
adoption of this Agreement by the Company Stockholders is required by the DGCL,
the Company Stockholder Approval shall have been obtained by the
Company;
(b) Purchaser
shall have accepted for payment and paid for all of the Company Common Shares
validly tendered and not withdrawn pursuant to the Offer;
(c) No
Governmental Authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any injunction, order, decree or ruling
(whether temporary, preliminary or permanent) which is then in effect and has
the effect
56
of
making
consummation of the Merger illegal or restraining, preventing or prohibiting
consummation of the Merger.
Section
9.02 Conditions
to the Obligations of the Company.
The
obligation of the Company to consummate the Merger is subject to the
satisfaction or waiver in writing (where permissible) of the condition that
Parent has complied in all respects with its obligations pursuant to
Section
4.03(a)
of this
Agreement.
Section
9.03 Frustration
of Conditions.
None of
the Company, Parent or Purchaser may rely on the failure of any condition set
forth in Section
9.01
to be
satisfied if such failure was caused by such party’s failure to act in good
faith or to use its reasonable best efforts to consummate the Merger and the
other transactions contemplated by this Agreement, as required by and subject
to
Section
8.06.
ARTICLE
X
TERMINATION,
AMENDMENT AND WAIVER
Section
10.01 Termination.
This
Agreement may be terminated and the Offer and/or the Merger may be abandoned
before or after the receipt of the Company Stockholder Approval (the date of
any
such termination, the “Termination
Date”):
(a) by
mutual
written consent of Parent and the Company at any time prior to the Acceptance
Time;
(b) by
either
Parent or the Company at any time after December 31, 2007 (the “Outside
Date”)
if the
Acceptance Time shall not have occurred on or before the Outside Date;
provided,
however,
that the
right to terminate this Agreement under this Section
10.01(b)
shall not
be available to a party whose failure to fulfill any obligation under this
Agreement materially contributed to the failure of the Acceptance Time to occur
on or before such date;
(c) by
either
Parent or the Company if any Governmental Authority of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any injunction,
order, decree or ruling or taken any other action (including the failure to
have
taken an action) that has the effect of making the acceptance for payment of
Company Common Shares pursuant to the Offer or the consummation of the Merger
illegal or otherwise preventing or prohibiting consummation of the Offer or
the
Merger (“Governmental
Order”)
which
has become final and non-appealable; provided,
however,
that the
terms of this Section
10.01(c)
shall not
be available to any party unless such party shall have used its reasonable
best
efforts to oppose any such Governmental Order or to have such Governmental
Order
vacated or made inapplicable to the Offer and the Merger;
(d) by
Parent
or the Company if the Offer (as it may have been extended pursuant to
Section
2.01)
expires
as a result of the non-satisfaction of the Minimum Condition, without Purchaser
having accepted for payment any Company Common Shares tendered pursuant to
the
Offer; provided,
however,
that a
party shall not be permitted to terminate this Agreement pursuant to
this Section
10.01(d)
if the
non-
57
satisfaction
of the Minimum Condition is attributable to the failure of such party (or any
Affiliate party) to fulfill its obligations under this Agreement;
(e) by
Parent
if prior to the Acceptance Time there shall have been a breach or inaccuracy
of
any representation, warranty, covenant or agreement on the part of the Company
contained in this Agreement, which breach or inaccuracy would (A) give rise
to
the failure of a condition set forth in sections (2)(a) or (b) of Annex
I
and (B)
is either incurable or, if curable, is not cured by the Company by the earlier
of (x) 60 days following receipt by the Company of written notice of such breach
or failure and (y) the Outside Date; provided
that
neither Parent nor Purchaser is then in material breach of any representation,
warranty or covenant under this Agreement;
(f) by
the
Company, if prior to the Acceptance Time there shall have been a breach or
inaccuracy of any representation, warranty, covenant or agreement on the part
of
Parent or Purchaser contained in this Agreement, which breach or inaccuracy
(A)
would reasonably be expected to have a Parent Material Adverse Effect and
(B)
is
either incurable or, if curable, is not cured by Parent or Purchaser by the
earlier of (x) 60 days following receipt by Parent or Purchaser of written
notice of such breach or failure and (y) the Outside Date; provided
that the
Company is not then in material breach of any representation, warranty or
covenant under this Agreement;
(g) by
Parent,
if prior to the Acceptance Time, an Adverse Recommendation Change shall have
occurred;
(h) by
the
Company, if at any time prior to the Acceptance Time, (i) the Company Board
has
received a Company Superior Proposal, (ii) the Company is in compliance in
all
material respects with Section
8.03,
(iii)
the Company shall have first given Parent at least three business days notice
of
its intent to terminate pursuant to this subsection, indicating in such notice
the material terms and conditions of such Company Superior Proposal and during
the three business day period immediately following the delivery of such notice,
the Company negotiates in good faith with Parent to make such adjustments to
the
terms and conditions of this Agreement as would enable the parties to proceed
with the transactions contemplated herein on such adjusted terms, (iv) after
taking into account any amendment to this Agreement entered into, or to which
Parent irrevocably covenants to enter into, within such three business day
period and for which all internal approvals of Parent have been obtained since
receipt of such notice, such Company Superior Proposal continues to constitute
a
Company Superior Proposal and (v) the Company pays to Parent the Termination
Fee
in accordance with Section
10.03(b)(i)
concurrently with or prior to such termination;
or
(i) by
Parent,
if prior to the Acceptance Time, the Company shall have willfully and materially
breached its obligations under Section
8.03.
Section
10.02 Effect
of Termination.
In the
event of the termination of this Agreement pursuant to Section
10.01
(other
than Section
10.01(a)),
written
notice thereof shall be given to the other party or parties, specifying the
provision hereof pursuant to which such termination is made, and this Agreement
shall forthwith become
58
void,
and
there shall be no liability under this Agreement on the part of any party hereto
except that the provisions of Section
5.21,
Section
6.10,
this
Section
10.02,
Section
10.03
and
ARTICLE
XI
shall
survive any such termination and shall remain in full force and effect;
provided,
however,
that
nothing herein shall relieve any party hereto from liability for fraud or any
willful breach of any of its representations, warranties, covenants or
agreements set forth in this Agreement prior to such termination.
Section
10.03 Fees
and Expenses.
(a) Except
as
otherwise set forth in this Section
10.03,
all
expenses incurred in connection with this Agreement shall be paid by the party
incurring such expenses, whether or not the Merger is consummated.
(b) In
the
event this Agreement shall be terminated:
(i) by
the
Company pursuant to Section
10.01(h),
the
Company shall pay to Parent the Termination Fee;
or
(ii) by
Parent
or the Company pursuant to Section
10.01(b)
or
Section
10.01(d)
or
Section
10.01(i)
if (A) at
or prior to the Termination Date, a Company Acquisition Proposal shall have
been
publicly announced (and not withdrawn) prior to such date and (B) concurrently
with such termination or within twelve (12) months following the Termination
Date, the Company enters into a definitive agreement to consummate or
consummates such Company Acquisition Proposal, then the Company shall pay to
Parent the Termination Fee if and when the entering into of such definite
agreement or consummation of such Company Acquisition Proposal occurs. For
purposes of this Section
10.03(b)(ii),
“50%”
shall be substituted for “20%” in the phrases dealing with assets and “50%”
shall be substituted for “20%” in phrases dealing with equity securities or
voting power in the definition of Company Acquisition Proposal.
(c) If
a
Termination Fee is payable pursuant to Section
10.03(b),
the
Company shall pay Parent (by wire transfer of immediately available funds),
if
pursuant to Section
10.03(b)(i),
on the
Termination Date concurrently with such termination and if pursuant to
Section
10.03(b)(ii),
within
two (2) Business Days after the date of the event giving rise to the obligation
to make such payment.
(d) For
purposes of this Agreement, “Termination
Fee”
means
$450
million.
(e) Each
of
Parent and Purchaser acknowledges and agrees that in the event that Parent
is
entitled to receive the Termination Fee pursuant to this Agreement, the right
of
Parent to receive such amount shall constitute each of the Buyer Parties’ sole
and exclusive remedy for, and such amount shall constitute liquidated damages
in
respect of, any termination of this Agreement regardless of the circumstances
giving rise to such termination.
59
(f) Each
of
Parent, Purchaser and the Company shall bear its own expenses in connection
with
this Agreement and the transactions contemplated hereby, except that Parent
and
the Company shall bear and pay one-half of the costs and expenses incurred
in
connection with the filing, printing and mailing of the Proxy/Information
Statement.
Section
10.04 Waiver.
At any
time prior to the Merger Effective Time, the Company, on the one hand, and
Parent and Purchaser, on the other hand, may (a) extend the time for the
performance of any obligation or other act of the other party, (b) waive any
inaccuracy in the representations and warranties of the other party contained
herein or in any document delivered pursuant hereto, and (c) waive compliance
with any agreement of the other party or any condition to its own obligations
contained herein. Any such extension or waiver shall be valid if set forth
in an
instrument in writing signed by the Company or Parent (on behalf of Parent
and
Purchaser). The failure of any party to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of those
rights.
ARTICLE
XI
GENERAL
PROVISIONS
Section
11.01 Non-Survival
of Representations and Warranties.
The
representations and warranties in this Agreement and in any certificate
delivered pursuant hereto shall terminate at the Merger Effective
Time.
Section
11.02 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
upon
receipt) by delivery in person, by prepaid overnight courier (providing proof
of
delivery), by facsimile or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
or facsimile numbers (or at such other address for a party as shall be specified
in a notice given in accordance with this Section
11.02):
if
to
Parent or Purchaser:
00
Xxxxxxxx Xxxx
Xxxxxx
X0X
0XX
Xxxxxx
Xxxxxxx
Telecopier
No: x00 (0) 00 0000 0000
Attention:
Company Secretary
60
with
a
copy to:
Xxxxx
Xxxx
& Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telecopier
No: (000) 000-0000
Attention: Xxxx
X.
Xxxxxxxx, Esq.
Xxxxxx
X.
Xxxx, Esq.
if
to the
Company:
MedImmune,
Inc.
Xxx
XxxXxxxxx Xxx
Xxxxxxxxxxxx,
Xxxxxxxx 00000
Telecopier
No. 000-000-0000
Attention:
Chief Executive Officer
with
a
copy to:
MedImmune,
Inc.
Xxx
XxxXxxxxx Xxx
Xxxxxxxxxxxx,
Xxxxxxxx 00000
Telecopier
No. 000-000-0000
Attention:
General Counsel
with
copies to:
Xxxxx
Xxxxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Telecopier
No: (000) 000-0000
Attention:
Xxxxxxxxx X. Xxxxxx, Esq.
|
Xxxxx-Do Gong, Esq.
|
All
such
notices, requests, claims, demands and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior
to
5:00 p.m. on the business day in the place of receipt. Otherwise, any such
notice, request, claim, demand or other communication shall be deemed to have
been received on the next succeeding business day in the place of
receipt.
Section
11.03 Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of law or public policy or the application of this
Agreement to any person or circumstance is invalid or
61
incapable
of being enforced by any rule of law or public policy, all other conditions
and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
by
this Agreement is not affected in any manner materially adverse to any party.
To
such end, the provisions of this Agreement are agreed to be severable. Upon
such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely
as
possible in a mutually acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally contemplated to
the
fullest extent possible.
Section
11.04 Amendment.
This
Agreement may be amended by the parties hereto by action taken by their
respective board of directors (or similar governing body or entity) at any
time
prior to the Merger Effective Time; provided,
however,
that,
after approval of the Merger by the Company Stockholders, no amendment may
be
made without further stockholder approval which, by Law or in accordance with
the rules of the Nasdaq, requires further approval by such stockholders. This
Agreement may not be amended except by an instrument in writing signed by the
parties hereto.
Section
11.05 Entire
Agreement; Assignment.
This
Agreement, together with the Confidentiality Agreement, the Disclosure Schedules
and Annex I, constitute the entire agreement among the parties with respect
to
the subject matter hereof, and supersede all prior agreements and undertakings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof. This Agreement shall not be assigned (whether pursuant
to
a merger, by operation of law or otherwise) ; provided that Parent and Purchaser
may assign any of its rights and obligations hereunder, in whole or in part,
to
any subsidiary of Parent without obtaining the consent of the Company and any
such assignment shall not relieve Parent or Purchaser of its obligations
hereunder. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the parties hereto and
their respective successors and permitted assigns. Any purported assignment
not
permitted under this Section
11.05
shall be
null and void.
Section
11.06 Performance
Guaranty.
Parent
hereby guarantees the due, prompt and faithful performance and discharge by,
and
compliance with, all of the obligations covenants, terms, conditions and
undertakings of each of the Buyer Parties under this agreement in accordance
with the terms hereof including any such obligations, covenants, terms,
conditions and undertakings that are required to be performed discharged or
complied with following the Merger Effective Time.
Section
11.07 Specific
Performance.
Subject
to Section
10.03(e),
the
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement were not performed in accordance with the terms
hereof and that money damages would not be a sufficient remedy for any breach
of
this Agreement, and accordingly, the parties hereto shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at
law
or equity.
62
Section
11.08 Parties
in Interest.
This
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement, other than (a) the provisions
of Section
8.05
(which
are intended to be for the benefit of the persons covered thereby and may be
enforced by such persons); and (b) the right of the Company, on behalf of its
stockholders, to pursue damages in the event of Parent’s or Purchaser’s breach
of this Agreement or fraud, which right is hereby acknowledged and agreed by
Parent and Purchaser.
Section
11.09 Governing
Law; Forum.
(a) All
disputes, claims or controversies arising out of or relating to this Agreement,
or the negotiation, validity or performance of this Agreement, or the
transactions contemplated hereby shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its rules
of
conflict of laws.
(b) Except
as
set out below, each of the Company, Parent and Purchaser hereby irrevocably
and
unconditionally consents to submit to the sole and exclusive jurisdiction of
any
court of the State of Delaware or of the United States located in New Castle
County, Delaware (the “Delaware
Courts”)
for any
litigation arising out of or relating to this Agreement, or the negotiation,
validity or performance of this Agreement, or the transactions contemplated
hereby (and agrees not to commence any litigation relating thereto except in
such courts), waives any objection to the laying of venue of any such litigation
in the Delaware Courts and agrees not to plead or claim in any Delaware Court
that such litigation brought therein has been brought in any inconvenient forum.
Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any
Delaware Court. Without
limiting the foregoing, each party agrees that service of process on such party
as provided in Section
11.02
shall be
deemed effective service of process on such party.
Section
11.10 Waiver
of Jury Trial.
Each of
the parties hereto hereby waives to the fullest extent permitted by applicable
Law any right it may have to a trial by jury with respect to any litigation
directly or indirectly arising out of, under or in connection with this
Agreement or the transactions contemplated by this Agreement. Each of the
parties hereto (a) certifies that no representative, agent or attorney of any
other party has represented, expressly or otherwise, that such other party
would
not, in the event of litigation, seek to enforce that foregoing waiver and
(b)
acknowledges that it and the other hereto have been induced to enter into this
Agreement and the transactions contemplated by this Agreement, as applicable,
by, among other things, the mutual waivers and certifications in this
Section
11.10.
Section
11.11 Headings.
The
descriptive headings contained in this Agreement are included for convenience
of
reference only and shall not affect in any way the meaning or interpretation
of
this Agreement.
63
Section
11.12 Counterparts.
This
Agreement may be executed and delivered (including by facsimile transmission)
in
two or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
but
all of which taken together shall constitute one and the same
agreement.
Section
11.13 Waiver.
Except
as provided in this Agreement, no action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained in this Agreement. The waiver by any party hereto of a breach of
any
provision hereunder shall not operate or be construed as a waiver of any prior
or subsequent breach of the same or any other provision hereunder.
Section
11.14 Company
SEC Reports.
In no
event shall any information contained in any part of any Company SEC Report
entitled “Risk Factors” or “Forward-Looking Statements” be deemed to be an
exception to (or, as applicable, a disclosure for purposes of) any
representation and warranty of the Company that is contained in this Agreement,
except to the extent such information consists of factual historical statements
(e.g.,
factual
descriptions of the performance, results of operations, assets, liabilities
or
financial condition of the Company and the Company Subsidiaries).
64
IN
WITNESS
WHEREOF, Parent, Purchaser, and the Company have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
By
_____________________________________
Name: Xxxxx
Xxxxxxx
Title: Chief
Executive Officer
ASTRAZENECA
BIOPHARMACEUTICALS INC.
By
_____________________________________
Name: Xxxxx
Xxxxx
Title: Vice
President
MEDIMMUNE,
INC.
By
_____________________________________
Name:
Title:
ANNEX
I
CONDITIONS
OF THE OFFER
(1) Purchaser
shall not be obligated to accept for payment, and (subject to the rules and
regulations of the SEC) shall not be obligated to pay for, any Company Common
Shares tendered pursuant to the Offer and not theretofore accepted for payment
or paid for unless, immediately prior to the expiration of the Offer (as it
may
have been extended pursuant to Section
2.01(d)
of the
Agreement):
| (a) |
there
shall have been validly tendered in the Offer and not properly withdrawn
Company Common Shares that, considered together with all other Company
Common Shares (if any) beneficially owned by Parent and its Affiliates,
represent more than 50% of the Company Outstanding Shares on a
“fully-diluted
basis”
(which shall mean, as of any time, the number of Company Common Shares
outstanding, together with all Company Common Shares which the Company
would be required to issue pursuant to any then outstanding warrants,
options, or other securities convertible into or exercisable or
exchangeable for shares of Company Common Stock (other than the Call
Spread Warrants) regardless of the conversion or exercise price,
the
vesting schedule or other terms and conditions thereof); and
|
| (b) |
(i)
any applicable waiting period under the HSR Act relating to the Offer
shall have expired or been terminated and (ii) any applicable waiting
period under any antitrust or competition Laws of any other applicable
jurisdiction shall have expired or been terminated and all other
foreign
antitrust and competition approvals as may be required to consummate
the
Offer shall have been obtained (the “Foreign
Antitrust Laws and Approvals”)
(in the case of Foreign Antitrust Laws and Approvals, only if such
Foreign
Antitrust Laws and Approvals (a) if not expired, terminated or obtained
would have a suspensory effect, (b) if not obtained would reasonably
be
expected to result in material limitations on the ownership or operation
by Parent of the assets of Parent, its subsidiaries or the Surviving
Corporation or (c) if not obtained, would subject Parent or Purchaser
to
the payment of a material fine or
penalty).
|
The
condition set forth in clause “(1)(a)” above is referred to as the “Minimum
Condition.”
(2) Furthermore,
Purchaser shall not be required to accept for payment, and (subject to the
rules
and regulations of the SEC) shall not be obligated to pay for, any Company
Common Shares tendered pursuant to the Offer (and not theretofore accepted
for
payment or paid for) if, upon the expiration of the Offer (as it may have been
extended pursuant to Section
2.01(d)
of the
Agreement) and before acceptance of such Company Common Shares for payment,
any
of the following conditions exists and is continuing, regardless of the
circumstances giving rise to such condition:
| (a) |
The
representations and warranties of the Company contained in this Agreement
that (i) are not made as of a specific date are not true and correct
as of
the date of this Agreement and as of the Acceptance Time, as though
made
on and as of the Acceptance Time, and (ii) are made as of a specific
date
are not true and correct as of such date, in each case, except where
the
failure of such representations or warranties to be true and correct
(without giving effect to any limitation as to “materiality” or “Material
Adverse Effect” set forth in such representations and warranties, other
than the representation in clause (a) of Section
5.08)
has not had and would not reasonably be expected to have, individually
or
in the aggregate, a Material Adverse Effect;
|
| (b) |
The
Company shall have failed to perform and comply with, in any material
respect, its obligations, agreements and covenants to be performed
or
complied with by it under this Agreement on or prior to the Acceptance
Time;
|
| (c) |
The
Company shall have failed to deliver to Parent a certificate signed
by an
executive officer of the Company and certifying as to the satisfaction
by
the Company, of the applicable conditions specified in clauses (2)(a)
and
(2)(b) of this Annex I;
|
| (d) |
Any
Governmental Authority shall have issued or granted any Governmental
Order; provided
that Parent and Purchaser shall have used their reasonable best efforts
to
oppose any such Governmental Order or to have such Governmental Order
vacated or made inapplicable to the Merger;
or
|
| (e) |
The
Agreement shall have been terminated in accordance with its
terms.
|
