EXHIBIT 10.3
AGOURON PHARMACEUTICALS, INC.
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Rights Agent
------------
Amended and Restated Rights Agreement
Dated as of November [XXX], 1998
TABLE OF CONTENTS
1. Certain Definitions
2. Appointment of Rights Agent
3. Issue of Rights Certificates
4. Form of Rights Certificates
5. Countersignature and Registration
6. Transfer, Split Up, Combination and Exchange of Rights Certificates
Mutilated, Destroyed, Lost or Stolen Rights Certificates
7. Exercise of Rights; Purchase Price; Expiration Date of Rights
8. Cancellation and Destruction of Rights Certificates
9. Reservation and Availability of Preferred Shares
10. Preferred Shares Record Date
11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights
12. Certificate of Adjusted Purchase Price or Number of Shares
13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power
14. Additional Covenants
15. Fractional Rights and Fractional Shares
16. Rights of Action
17. Agreement of Rights Holders
18. Rights Certificate Holder Not Deemed a Shareholder
19. Concerning the Rights Agent
20. Merger or Consolidation or Change of Name of Rights Agent
21. Duties of Rights Agent
22. Change of Rights Agent
23. Issuance of New Rights Certificates
24. Redemption, Termination and Exchange
25. Notice of Certain Events
26. Notices
27. Supplements and Amendment
28. Determination and Actions by the Board, etc.
29. Successors
30. Benefits of This Agreement
31. Severability
32. Governing Law
33. Counterparts
34. Descriptive Headings
Exhibit A - [AMENDED AND RESTATED ARTICLES OF INCORPORATION]
Exhibit B - Form of Rights Certificate
AMENDED AND RESTATED RIGHTS AGREEMENT
THIS AMENDED AND RESTATED RIGHTS AGREEMENT (this "Agreement"), dated
as of November [XXX], 1998 (the "Agreement Date"), is made by and between
AGOURON PHARMACEUTICALS, INC., a California corporation (the "Company"), and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., a New Jersey limited liability
company (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board") has
previously adopted and implemented a shareholder rights plan governed by the
terms of the Rights Agreement dated as of November 7, 1996 (the "Original
Agreement") and, pursuant thereto, (i) distributed one preferred share
purchase right (an "Original Right") for each share of common stock, no par
value, of the Company outstanding at the close of business on November 21,
1996 and (ii) authorized the issue of one Original Right for each share of
common stock issued after November 21, 1996.
WHEREAS, on [XXXXX XXX], 1998, the Board approved this amendment and
restatement of the Original Agreement to be effective (the "Effective Date")
upon the creation and issuance of the Agouron Oncology Division Common Stock,
no par value (the "Oncology Division Stock"). In connection with such
amendment and restatement, the Board (i) authorized and declared a dividend
distribution of one Oncology Division Stock Purchase Right (an "Oncology
Right") for each share of Oncology Division Stock outstanding on the Effective
Date, (ii) redesignated each Original Right outstanding as of the Effective
Date as an Agouron Pharmaceuticals Stock Purchase Right (an "Agouron Right"),
(iii) effected a two-for-one split of the Agouron Rights on the Effective Date
(so that, as of the Effective Date, each share of Agouron Pharmaceuticals
Common Stock, no par value ("Agouron Stock"), shall have one Agouron Right
associated therewith), with a corresponding adjustment of the purchase price
for an Agouron Right, and (iv) authorized and directed the issuance of one
Right (as defined below) with respect to each Common Share (as defined below)
that becomes outstanding between the Effective Date and the Distribution Date
(or earlier redemption, expiration or termination of the Rights (as such term
is hereinafter defined)).
WHEREAS, each Agouron Right and Oncology Right initially represents
the right to purchase one one-ten thousandth of a share of the Company's
Series B Participating Preferred Stock, no par value ("Series B Preferred
Stock"), and one one-ten thousandth of a share of the Company' Series C
Participating Preferred Stock, no par value ("Series C Preferred Stock"),
respectively, such preferred shares having the rights and preferences set
forth in the [AMENDED AND RESTATED ARTICLES OF INCORPORATION OF THE COMPANY
WHICH ARE] attached hereto as Exhibit A, upon the terms and subject to the
conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto hereby agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as such term
is hereinafter defined) and Associates (as such term is hereinafter defined)
of such Person, shall be or become, after the Effective Date, the Beneficial
Owner (as such term is hereinafter defined) of Common Shares representing
fifteen percent (15%) or more of the total Voting Rights (as defined below) of
all the Common Shares then outstanding or who was such a Beneficial Owner, at
any time on or after the Effective Date, whether or not such Person continues
to be the Beneficial Owner of Common Shares representing fifteen percent (15%)
or more of the total Voting Rights of all the Common Shares outstanding.
NOTWITHSTANDING the foregoing:
(i) in no event shall a Person who or which, together with
all Affiliates and Associates of such Person, is the Beneficial Owner
of Common Shares representing less than fifteen percent (15%) of the
total Voting Rights of all the Common Shares outstanding become an
Acquiring Person either (A) solely as a result of a reduction of the
number of Common Shares outstanding (including repurchases of
outstanding Common Shares by the Company), which reduction increases
the percentage of the total Voting Rights of Common Shares
beneficially owned by such Person, or (B) solely due to an adjustment
in the number of votes to which Oncology Division Stock is entitled
pursuant to the Company's Articles of Incorporation (as they may be
amended and/or restated from time to time); PROVIDED, HOWEVER, that
any subsequent increase in the amount of Common Shares beneficially
owned by any such Person, together with all Affiliates and Associates
of such Person, without the prior written approval of the Board shall
cause such Person to be an Acquiring Person (unless, measured at such
time, such Person would not be an Acquiring Person);
(ii) the term Acquiring Person shall not mean (A) the
Company, (B) any subsidiary of the Company (as such term is
hereinafter defined), (C) any employee benefit plan of the Company or
any of its subsidiaries, (D) any entity holding securities of the
Company organized, appointed or established by the Company or any of
its subsidiaries for or pursuant to the terms of any such plan or (E)
any underwriter acting in good faith in a firm commitment
underwriting of an offering of the Company's securities pursuant to
arrangements with the Company which have been approved by the Board
(HOWEVEr, the exception provided by this clause (E) shall no longer
be available in the event that any such underwriter is otherwise an
Acquiring Person on or after the date which is forty (40) days after
the date of initial acquisition of the Company's securities by such
underwriter in connection with such offering); and
(iii) no Person shall be deemed to be an Acquiring Person
if: (A) (1) any Schedule 13D under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any comparable or successor
report, filed (or required to be filed) by such Person does not (or
would not) state any intention to or reserve the right to control or
influence the management or policies of the Company or engage in any
of the actions specified in Item 4 (or any comparable or successor
Item) of such Schedule 13D (other than the disposition of Common
Shares), (2) either (x) within two Business Days of being requested
by the Company to advise the Company regarding the same, such Person
certifies in writing to the Company that such Person acquired
Beneficial Ownership of Common Shares representing fifteen percent
(15%) or more of the total Voting Rights of all the Common Shares
outstanding inadvertently or without knowledge of the terms of the
Rights, or (y) the Board determines in good faith that such Person
has become an Acquiring Person inadvertently, (3) such Person divests
as promptly as practicable a sufficient number of securities
representing Common Shares so that such Person shall not be deemed to
be an Acquiring Person pursuant to the first sentence of this Section
1(a), and (4) promptly following such Person's divestiture of such
securities, such Person certifies to the Board that such Person is no
longer an Acquiring Person as defined pursuant to the first sentence
of this Section 1(a); or (B) by reason of such Person's Beneficial
Ownership of Common Shares representing fifteen percent (15%) or more
of the total Voting Rights of all the Common Shares outstanding on
the Agreement Date if prior to the Effective Date such Person
notifies the Board that such Person is no longer the Beneficial Owner
of Common Shares representing fifteen percent (15%) or more of the
total Voting Rights of all the then outstanding Common Shares.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
in effect on the Agreement Date.
(c) A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has:
(A) the right or obligation to acquire (whether
such right or obligation is exercisable or effective immediately or
only after the passage of time) pursuant to any agreement,
arrangement or understanding (whether or not in writing) or upon the
exercise of conversion rights, exchange rights, rights (other than
the Rights), warrants or options, or otherwise; PROVIDED, HOWEVER,
that a Person shall not be deemed the "Beneficial Owner" of, or to
"beneficially own," securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered securities are
accepted for payment or exchange; or
(B) the right to vote or dispose of pursuant to any
agreement, arrangement or understanding (whether or not in writing);
PROVIDED, HOWEVER, that a Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," any security under this clause
(B) if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy given in response
to a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations of the Exchange
Act and (2) is not also then reportable by such Person on Schedule
13D under the Exchange Act (or any comparable or successor report);
or
(iii) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with
which such Person or any of such Person's Affiliates or Associates
has any agreement, arrangement or understanding (whether or not in
writing) (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities), or with which such Person or any of
such Person's Affiliates or Associates have otherwise formed a group,
for the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in clause (B) of subparagraph (ii) of
this paragraph (c)) or disposing of any securities of the Company.
(d) "Business Day" shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in the State of California are
authorized or obligated by law or executive order to close.
(e) "Close of business" on any given date shall mean 5:00 p.m.,
Pacific time, on such date; PROVIDED, HOWEVER, that if such date is not a
Business Day it shall mean 5:00 p.m., Pacific time, on the next succeeding
Business Day.
(f) "Common Shares," when used with reference to the Company, shall
mean the Agouron Stock and/or the Oncology Division Stock, as the context
requires, of the Company or any other shares of capital stock of the Company
into which Agouron Stock and/or Oncology Division Stock may be reclassified or
changed; PROVIDED, HOWEVEr, that "Common Shares" shall mean all of the Agouron
Stock and the Oncology Division Stock (or any other shares of capital stock
into which Agouron Stock and/or Oncology Division Stock may be reclassified)
whenever a determination of whether a Person shall have become the Beneficial
Owner of, or shall have made a tender or exchange offer for, Common Shares
representing a specified percentage of the total Voting Rights of all the
Common Shares then outstanding is required to be made herein. "Common Shares,"
when used with reference to any Person other than the Company, shall mean the
capital stock with the greatest voting power, or the equity securities or
other equity interest having power to control or direct the management, of
such Person or, if such other Person is a Subsidiary of another Person, the
Person or Persons which ultimately control(s) such first-mentioned Person and
which has issued and outstanding such capital stock, equity securities or
equity interests.
(g) "Distribution Date" shall have the meaning as set forth in
Section 3(a).
(h) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company, joint venture, association, trust or
other entity, and shall include any successor (by merger or otherwise) of such
entity.
(i) "Preferred Shares" shall mean shares of Series B Preferred Stock
and/or shares of Series C Preferred Stock, as the context requires (e.g.,
Preferred Shares shall refer to shares of Series B Preferred Stock in the
context of Agouron Rights and shares of Series C Preferred Stock in the
context of Oncology Rights).
(j) "Rights" shall mean Oncology Rights and/or Agouron Rights, as the
context requires.
(k) "Stock Acquisition Date" shall mean the first date of public
announcement by the Company or an Acquiring Person that an Acquiring Person
has become such.
(l) A "subsidiary" of any Person shall mean any corporation or other
entity of which a majority of the voting power of the voting equity securities
or voting or equity interests is owned, directly or indirectly, by such
Person, or which is otherwise controlled by such Person.
(m) "Triggering Event" shall mean a Section 11 Event (as defined in
Section 11(a)(ii) of this Agreement) or a Section 13 Event (as defined in
Section 13(a) of this Agreement).
(n) "Voting Rights," when used with reference to the capital stock
of, or units of equity interest in, any Person, shall mean the right, under
ordinary circumstances and measured as of the date of any determination, to
vote in the election of directors of such Person (if such Person is a
corporation) or to participate in the management and control of such Person
(if such Person is not a corporation).
2. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints the
Rights Agent to act as agent for the Company and the holders of the Rights
(who, in accordance with Section 3, shall prior to the Distribution Date also
be the holders of the Common Shares) in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable. In the event the Company appoints one or more
Co-Rights Agents, the respective duties of the Rights Agents and any Co-Rights
Agents shall be as the Company shall determine.
3. ISSUE OF RIGHTS CERTIFICATES.
(a) Until the earlier of (i) the Stock Acquisition Date or (ii) the
close of business on the tenth day (or such later date as may be determined by
action of the Board) after the date of the commencement of, or first public
announcement of the intent of any Person (other than the Company, any
subsidiary of the Company, any employee benefit plan of the Company or any of
its subsidiaries or any entity organized, appointed or established by the
Company holding Common Shares for or pursuant to the terms of any such plan)
to commence (which intention to commence remains unwithdrawn or otherwise
uncanceled for five (5) days after such announcement), a tender or exchange
offer the consummation of which would result in such Person becoming an
Acquiring Person (including any such date which is on or after the Agreement
Date and prior to the issuance of the Oncology Rights) (the earlier of such
dates being herein referred to as the "Distribution Date"), (x) the Agouron
Rights and the Oncology Rights shall be evidenced by the certificates for
Agouron Stock and Oncology Division Stock, respectively, registered in the
names of the holders thereof (which certificates for Agouron Stock and
Oncology Division Stock shall be deemed also to be certificates for Agouron
Rights and Oncology Rights, respectively) and not by separate certificates,
and (y) the Rights (and the right to receive certificates therefor) shall be
transferable only in connection with the transfer of the underlying Common
Shares. As soon as practicable after the Distribution Date, the Rights Agent
shall send by first-class, insured, postage prepaid mail, to each record
holder of the Agouron Stock and Oncology Division Stock as of the close of
business on the Distribution Date, at the address of such holder shown on the
records of the Company, a certificate for Rights, in substantially the form of
Exhibit B hereto (an "Agouron Stock Rights Certificate" or an "Oncology
Division Stock Rights Certificate," as the case may be), evidencing one
Agouron Right for each share of Agouron Stock so held and one Oncology Right
for each share of Oncology Division Stock so held (subject to adjustment as
provided elsewhere herein). As of and after the Distribution Date, the Rights
shall be evidenced solely by such Rights Certificates.
Until the Distribution Date (or earlier redemption, expiration or
termination of the Rights), the surrender for transfer of any certificate for
Common Shares shall also constitute the transfer of the Rights associated with
the Common Shares represented by such certificate.
(b) Certificates issued for Common Shares (including, without
limitation, certificates issued upon transfer or exchange of Common Shares)
after the Effective Date but prior to the Distribution Date (or earlier
redemption, expiration or termination of the Rights) shall be deemed also to
be certificates for Rights, and shall have impressed, printed, stamped,
written or otherwise affixed onto them the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in an Amended and Restated Rights
Agreement between Agouron Pharmaceuticals, Inc. (the "Company") and
ChaseMellon Shareholder Services, L.L.C. (the "Rights Agent") dated
as of November [XXX], 1998 (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of which
is on file at the principal offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights may
be redeemed, may expire, or may be evidenced by separate Certificates
and will no longer be evidenced by this Certificate. The Company will
mail to the holder of this certificate a copy of the Rights Agreement
without charge after receipt of a written request therefor. Under
certain circumstances, Rights beneficially owned by Acquiring Persons
(as defined in the Rights Agreement) or certain related Persons and
any subsequent holder of such Rights may become null and void.
With respect to such certificates containing the foregoing legend, until the
Distribution Date (or earlier redemption, expiration or termination of the
Rights), the Rights associated with the Common Shares represented by such
certificates shall be evidenced by such certificates alone, and the surrender
for transfer of any of such certificates shall also constitute the transfer of
the Rights associated with the Common Shares represented by such certificates.
4. FORM OF RIGHTS CERTIFICATES.
(a) The Agouron Stock Rights Certificates and the Oncology Division
Stock Rights Certificates (and the forms of election to purchase shares and of
assignment and certificates to be printed on the reverse thereof) shall be
substantially in the form set forth as Exhibit B hereto and may have such
marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required
to comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or interdealer
quotation system on which the Rights may from time to time be listed or
traded, or to conform to usage. Subject to the provisions of Section 11 and
Section 23, the Rights Certificates shall entitle the holders thereof to
purchase such number of one one-ten thousandths of a Preferred Share as shall
be set forth therein at the price per one one-ten thousandth of a Preferred
Share set forth therein (the "Purchase Price"), but the number of such one
one-ten thousandths of a Preferred Share and the Purchase Price shall be
subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) that
represents Rights beneficially owned by an Acquiring Person or any Associate
or Affiliate thereof and any Rights Certificate issued at any time upon the
transfer of any Rights to such an Acquiring Person or any Associate or
Affiliate thereof or to any nominee of such Acquiring Person, Associate or
Affiliate, and any Rights Certificate issued pursuant to Section 6 or Section
11 upon transfer, exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain the following legend:
The Rights represented by this Rights Certificate were issued to a
Person who was an Acquiring Person or an Affiliate or an Associate of
an Acquiring Person, as such terms are defined in the Rights
Agreement. This Rights Certificate and the Rights represented hereby
may become void under the circumstances specified in Section 7(e) of
the Rights Agreement.
The provisions of Section 7(e) shall be operative whether or not the foregoing
legend is contained on any such Rights Certificate.
5. COUNTERSIGNATURE AND REGISTRATION.
(a) The Rights Certificates shall be executed on behalf of the
Company by its President or any Vice President, either manually or by
facsimile signature, and shall have affixed thereto the Company's seal or a
facsimile thereof which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile signature. The
Rights Certificates shall be countersigned by the Rights Agent, either
manually or by facsimile signature, and shall not be valid for any purpose
unless so countersigned. In case any officer of the Company who shall have
signed any of the Rights Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and delivery
by the Company, such Rights Certificates, nevertheless, may be countersigned
by the Rights Agent, and issued and delivered by the Company with the same
force and effect as though the Person who signed such Rights Certificates had
not ceased to be such officer of the Company; and any Rights Certificates may
be signed on behalf of the Company by any Person who, at the actual date of
the execution of such Rights Certificate, shall be a proper officer of the
Company to sign such Rights Certificate, although at the date of the execution
of this Agreement any such Person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its office designated for such purpose, books for
registration and transfer of the Rights Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the
Rights Certificates, the number of Rights evidenced on its face by each of the
Rights Certificates and the date of each of the Rights Certificates.
6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHTS
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHTS CERTIFICATES.
(a) Subject to the provisions of Sections 7(e), 7(f) and 15, at any
time after the close of business on the Distribution Date, and at or prior to
the close of business on the Expiration Date, any Rights Certificate or
Certificates may be transferred, split up, combined or exchanged for another
Rights Certificate or Rights Certificates, entitling the registered holder to
purchase a like number of one-ten thousandths of a Preferred Share (or, after
the occurrence of a Triggering Event, Common Shares or other securities or
property, as the case may be) as the Rights Certificate or Rights Certificates
surrendered then entitled such holder (or former holder in the case of a
transfer) to purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Rights Certificate or Rights Certificates shall make
such request in writing delivered to the Rights Agent, and shall surrender the
Rights Certificate or Rights Certificates to be transferred, split up,
combined or exchanged at the principal office of the Rights Agent. Thereupon
the Rights Agent shall (subject to Section 7(e)) countersign and deliver to
the Person entitled thereto a Rights Certificate or Rights Certificates, as
the case may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Rights
Certificates.
(b) Subject to the provisions of Sections 7(e), 7(f) and 15, upon
receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Rights
Certificate and such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the
Company shall reasonably request, and, in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to them, and reimbursement to
the Company and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation of the Rights
Certificate if mutilated, the Company shall execute and deliver a new Rights
Certificate of like tenor to the Rights Agent for countersignature and
delivery to the registered owner in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated.
7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS.
(a) Subject to the provisions of Sections 7(e) and 7(f), the
registered holder of any Rights Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein) in whole or in part at any time
after the Distribution Date upon presentation of the Rights Certificate, with
the appropriate form of election to purchase on the reverse side thereof duly
executed, to the Rights Agent at the principal office of the Rights Agent,
together with payment of the Purchase Price for each one one-ten thousandth of
a Preferred Share (or such other number, securities or property, as the case
may be) as to which the Rights are exercised, at or prior to the earliest of
(i) the close of business on November 21, 2006 (the "Final Expiration Date"),
(ii) the time at which the Rights are redeemed as provided in Section 24,
(iii) the consummation of a transaction contemplated by Section 13(d), or (iv)
the time at which the Rights are exchanged as provided in Section 24(c) (such
earliest time being herein referred to as the "Expiration Date").
(b) The Purchase Price with respect to each Agouron Right shall
initially be [$250.00] for each one one-ten thousandth of a share of Series B
Preferred Stock, and the Purchase Price with respect to each Oncology Right
shall initially be [$XXX.XX] for each one one-ten thousandth of a share of
Series C Preferred Stock, in each case (i) subject to adjustment from time to
time as provided in Sections 11 and 13 and (ii) payable in lawful money of the
United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing exercisable
Rights, with the appropriate form of election to purchase duly executed,
accompanied by payment of the Purchase Price for fractional interests in the
Preferred Shares (or other securities or property) to be purchased and an
amount equal to any applicable transfer tax (as determined by the Rights
Agent) in cash, or by certified check or bank draft payable to the order of
the Company, the Rights Agent shall, subject to Section 21(k), thereupon
promptly (i)(A) requisition from any transfer agent of the Preferred Shares to
be purchased (or make available, if the Rights Agent is the transfer agent)
certificates for the number of fractional interests in Preferred Shares to be
purchased, and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (B) if the Company, in its sole discretion,
shall have elected to deposit the fractional interests in Preferred Shares
issuable upon exercise of the Rights hereunder into a depositary, requisition
from the depositary agent depositary receipts representing such number of one
one-ten thousandths of a Preferred Share as are to be purchased (in which case
certificates for the Preferred Shares represented by such receipts shall be
deposited by the transfer agent with the depositary agent) and the Company
shall direct the depositary agent to comply with such request, (ii) when
appropriate, requisition from the Company the amount of cash, if any, to be
paid in lieu of issuance of fractional shares in accordance with Section 15,
(iii) promptly after receipt of such certificates or depositary receipts,
cause the same to be delivered to or upon the order of the registered holder
of such Rights Certificate, registered in such name or names as may be
designated by such holder, and (iv) when appropriate, after receipt, promptly
deliver such cash to or upon the order of the registered holder of such Rights
Certificate. In the event that the Company is obligated to issue other
securities of the Company, and/or distribute other property pursuant to
Section 11(a), the Company shall make all arrangements necessary so that such
other securities and/or property are available for distribution by the Rights
Agent, if and when appropriate.
(d) In the case of an exercise of the Rights by a holder pursuant to
Section 11(a)(ii), the Rights Agent shall return such Rights Certificate to
the registered holder thereof after imprinting, stamping or otherwise
indicating thereon that the rights represented by such Rights Certificate no
longer include the rights provided by Section 11(a)(ii); provided, however,
that if less than all the Rights represented by such Rights Certificate were
so exercised, the Rights Agent shall indicate on the Rights Certificate the
number of Rights represented thereby which continue to include the rights
provided by Section 11(a)(ii). In case the registered holder of any Rights
Certificate shall exercise (except pursuant to Section 11(a)(ii)) less than
all the Rights evidenced thereby, a new Rights Certificate evidencing Rights
equivalent to the Rights remaining unexercised shall be issued by the Rights
Agent and delivered to the registered holder of such Rights Certificate or to
such registered holder's duly authorized assigns, subject to the provisions of
Section 15.
(e) Notwithstanding anything in this Agreement to the contrary, if
there occurs any Triggering Event, then any Rights that are or were on or
after the Distribution Date beneficially owned by (i) an Acquiring
Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee
from an Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such (and any subsequent
transferees of such transferee), or (iii) a transferee of an Acquiring Person
(or such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring Person or to
any Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (B) a
transfer which the Board determines is part of a plan, arrangement or
understanding which has as a primary purpose or effect the avoidance of this
Section 7(e), shall become null and void without any further action, and any
holder (including any subsequent holder) of such Rights shall thereupon have
no rights whatsoever with respect to such Rights, whether under any provision
of this Agreement or otherwise. The Company shall use all reasonable efforts
to insure that the provisions of this Section 7(e) are complied with, but
shall have no liability to any holder of Right Certificates or any other
Person as a result of its failure or inability to make any determinations with
respect to an Acquiring Person or its Affiliates, Associates or transferees.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder upon the occurrence of any
purported exercise as set forth in this Section 7 unless the certificate
contained in the appropriate form of election to purchase set forth on the
reverse side of the Rights Certificate surrendered for such exercise shall
have been properly completed and duly executed by the registered holder
thereof and the Company shall have been provided with such additional evidence
of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall reasonably request.
8. CANCELLATION AND DESTRUCTION OF RIGHTS CERTIFICATES. All Rights
Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Rights
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Rights Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all canceled Rights Certificates to the Company, or shall, at the
written request of the Company, destroy such canceled Rights Certificates, and
in such case shall deliver a certificate of destruction thereof to the
Company.
9. RESERVATION AND AVAILABILITY OF PREFERRED SHARES.
(a) The Company covenants and agrees that it shall cause to be
reserved and kept available, out of its authorized and unissued Preferred
Shares (and, following the occurrence of a Triggering Event, Common Shares
and/or other securities), the number of Preferred Shares (and, following the
occurrence of a Triggering Event, Common Shares and/or other securities) that
will be sufficient (in accordance with the terms of this Agreement, including
Section 11(a)(iii)) to permit the exercise in full of all outstanding Rights.
(b) So long as the Preferred Shares (and, following the occurrence of
a Triggering Event, Common Shares and/or other securities) issuable upon the
exercise of the Rights may be listed on any national securities exchange or
quoted on any national quotation system, the Company shall use its best
efforts to cause, from and after such time as the Rights become exercisable,
all shares (or other securities) reserved for such issuance to be listed on
such exchange or quoted on such system upon official notice of issuance upon
such exercise.
(c) If then required by applicable law, the Company shall use its
best efforts to (i) file, as soon as practicable following the earliest date
after the occurrence of a Triggering Event as to which the consideration to be
delivered by the Company upon exercise of the Rights has been determined
pursuant to this Agreement, or as soon as is required by law following the
Distribution Date, as the case may be, a registration statement under the
Securities Act of 1933, as amended (the "Act"), with respect to the securities
purchasable upon exercise of the Rights on an appropriate form, (ii) cause
such registration statement to become effective as soon as practicable after
such filing and (iii) cause such registration statement to remain effective
(with a prospectus at all times
meeting the requirements of the Act) until the earlier of (A) the date as of
which the Rights are no longer exercisable for such securities, (B) the
Expiration Date or (C) the date the Company receives an opinion of counsel to
the effect that the maintenance of such registration statement in effect is no
longer necessary. If then required by applicable law, the Company will also
take such action as may be appropriate under the securities or "blue sky" laws
of the various states. The Company may temporarily suspend, for a period of
time not to exceed ninety (90) days after the date set forth in clause (i) of
this Section 9(c), the exercisability of the Rights in order to prepare and
file such registration statement or to comply with such blue sky laws. Upon
any such suspension, the Company shall issue a public announcement stating
that the exercisability of the Rights has been temporarily suspended.
Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained.
(d) The Company covenants and agrees that it shall take all such
action as may be necessary to ensure that all Preferred Shares and/or other
securities delivered upon exercise of Rights shall, at the time of delivery of
the certificates for such Preferred Shares or other securities (subject to
payment of the Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable shares or securities.
(e) The Company further covenants and agrees that it shall pay when
due and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Rights
Certificates or of any certificates for Preferred Shares and/or other
securities upon the exercise of Rights. The Company shall not, however, be
required to (i) pay any transfer tax which may be payable in respect of any
transfer or delivery of Rights Certificates to a Person other than, or in
respect of the issuance or delivery of the Preferred Shares and/or other
securities in a name other than that of, the registered holder of the Rights
Certificates evidencing Rights surrendered for exercise or (ii) issue or
deliver any certificates for Preferred Shares and/or other securities in a
name other than that of the registered holder upon the exercise of any Rights
until such tax shall have been paid (any such tax being payable by the holder
of such Rights Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is due.
10. PREFERRED SHARES RECORD DATE. Each Person in whose name any
certificate for Preferred Shares (or other securities) is issued upon the
exercise of Rights shall for all purposes be deemed to have become the holder
of record of the Preferred Shares (or other securities) represented thereby
on, and such certificate shall be dated, the date upon which the Rights
Certificate evidencing such Rights was duly presented and payment of the
Purchase Price (and any applicable transfer taxes) was made; provided,
however, that if the date of such presentation and payment is a date upon
which the Preferred Shares (or other securities) transfer books of the Company
are closed, such Person shall be deemed to have become the record holder of
such shares on, and such certificate shall be dated, the next succeeding
Business Day on which the Preferred Shares (or other securities) transfer
books of the Company are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Rights Certificate, as such, shall not be entitled to
any rights of a shareholder of the Company with respect to shares for which
the Rights shall be exercisable, including, without limitation, the right to
vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF SHARES OR NUMBER
OF RIGHTS. The Purchase Price, the number of Preferred Shares (or number or
kind of other shares of capital stock, as the case may be) covered by each
Right and the number of Rights outstanding are subject to adjustment from time
to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the
Agreement Date (A) declare or pay any dividend on any series of the
outstanding Preferred Shares payable in Preferred Shares of the same series,
(B) subdivide any series of the outstanding Preferred Shares, (C) combine any
series of the outstanding Preferred Shares into a smaller number of shares or
(D) issue any shares of its capital stock in a reclassification of the
outstanding Preferred Shares (including any such reclassification in
connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), except as otherwise provided in this
Section 11(a) and in Section 7(e), the Purchase Price relating to the series
of Preferred Shares at issue in effect at the time of the record date for such
dividend or of the effective date of such subdivision, combination or
reclassification, and the
number and kind of shares of capital stock, as the case may be, issuable on
such date, shall be proportionately adjusted so that the holder of any
associated Right exercised after such time shall be entitled to receive the
aggregate number and kind of Preferred Shares of the affected series or other
securities, as the case may be, which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Shares
transfer books of the Company were open, such holder would have owned upon
such exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification. If an event occurs which would
require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii),
the adjustment provided for in this Section 11(a)(i) shall be in addition to,
and shall be made prior to, any adjustment required pursuant to Section
11(a)(ii).
(ii) Subject to Section 24(c), in the event any Person, alone or
together with its Affiliates and Associates, shall become an Acquiring Person
(a "Section 11 Event") (except pursuant to a tender or exchange offer for all
outstanding Common Shares at a price for each series of Common Shares and on
terms determined by at least a majority of the members of the Board who are
not officers of the Company and are not Acquiring Persons or Affiliates or
Associates thereof to be in the best interests of the Company and its
shareholders (other than the Person or an Affiliate or Associate thereof on
whose behalf the offer is being made) (a "Permitted Offer")), then, promptly
following the first occurrence of such a Section 11 Event, proper provision
shall be made so that each holder of a Right, except as provided in Section
7(e), shall, for a period of sixty (60) days after the later of the occurrence
of any such Section 11 Event or the effective date of an appropriate
registration statement pursuant to Section 9, have a right to receive, upon
exercise thereof at the then current Purchase Price in accordance with the
terms of this Agreement, in lieu of fractional interests in Preferred Shares
and subject to the provisions of Section 11(a)(iii), such number of shares of
Oncology Division Stock, in the case of an Oncology Right, and Agouron Stock,
in the case an Agouron Right, as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the number of one one-ten
thousandths of a Preferred Share for which a Right was exercisable immediately
prior to the date of the occurrence of the Section 11 Event at issue (with the
foregoing yielding a product determined separately, as the case may be, for
the Oncology Rights and the Agouron Rights), and dividing such products by (y)
fifty percent (50%) of the then current per share market price of the Oncology
Division Stock or the Agouron Stock in the case of an Oncology Right or an
Agouron Right, respectively (determined pursuant to Section 11(d)), on the
date of the occurrence of the Section 11 Event at issue (such number of shares
being referred to herein, respectively, as the "Oncology Adjustment Shares"
and the "Agouron Adjustment Shares"); provided, however, that if the
transaction that would otherwise give rise to the foregoing adjustment is also
subject to the provisions of Section 13, then only the provisions of Section
13 shall apply and no adjustment shall be made pursuant to this Section
11(a)(ii); and provided, further, that such sixty (60) day period shall not be
deemed to run during any period in which the exercise of any of the Rights or
the fulfillment by the Company or the Rights Agent of its or their obligations
under this Agreement shall be enjoined or otherwise prohibited in full or in
part by any court or other governmental agency or body.
(iii) In lieu of issuing Oncology Adjustment Shares and/or Agouron
Adjustment Shares in accordance with Section 11(a)(ii), the Company may, if
the Board determines that such action is necessary or appropriate and not
contrary to the interests of holders of Rights, elect to (and, in the event
that the Board has not exercised the exchange right contained in Section 24(c)
and there are not sufficient authorized but unissued shares of Oncology
Division Stock or Agouron Stock, as the case may be, to permit the exercise in
full of the Rights in accordance with the foregoing subparagraph (ii), the
Company shall) take all such action as may be necessary to authorize, issue or
pay, upon the exercise of the Rights, cash (including by way of a reduction of
the Purchase Price), property, Common Shares, other securities (whether equity
or debt securities of the Company, any subsidiary of the Company, or
otherwise) or any combination thereof having an aggregate value equal to the
value of the Oncology Adjustment Shares and/or the Agouron Adjustment Shares,
as the case may be, which otherwise would have been issuable pursuant to
Section 11(a)(ii), which aggregate value shall be determined by a nationally
recognized investment banking firm selected by the Board. For purposes of the
preceding sentence, the value of the Oncology Adjustment Shares and/or the
Agouron Adjustment Shares, as the case may be, shall be determined pursuant to
Section 11(d) and the value of any fractional interests in Preferred Shares or
preference stock which the Board determines to be a "common share equivalent"
shall be deemed to have the same value as the Oncology Adjustment Shares
and/or the Agouron Adjustment Shares, as the case may be. Any such election by
the Board must be made and publicly announced within sixty (60) days following
the date on which the Section 11 Event at issue shall have occurred. Following
the occurrence of such Section 11 Event, the Board may suspend the
exercisability of the Rights for a period of up to sixty (60) days following
the date on which such Section 11 Event shall have occurred to the extent that
such Directors have not determined whether to exercise their rights of
election under this Section 11(a)(iii). If the Board shall determine in good
faith that it is likely that sufficient additional Oncology Adjustment Shares
and/or Agouron Adjustment Shares, as the case may be, could be authorized for
issuance upon exercise in full of the Rights, the sixty (60) day period set
forth above may be extended to the extent necessary, but not more than ninety
(90) days following the occurrence of the Section 11 Event at issue, in order
that the Company may seek shareholder approval for the authorization of such
additional shares. In the event of any such suspension, the Company shall
issue a public announcement stating that the exercisability of the Rights has
been temporarily suspended.
(b) If the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of any series of Preferred Shares
entitling them (for a period expiring within forty-five (45) calendar days
after such record date) to subscribe for or purchase Preferred Shares of such
series (or shares having the same or more favorable rights, privileges and
preferences as the Preferred Shares of such series ("equivalent preferred
shares")) or securities convertible into Preferred Shares of such series or
equivalent preferred shares at a price per Preferred Share of such series or
per equivalent preferred share (or having a conversion price per share, if a
security convertible into Preferred Shares of such series or equivalent
preferred shares) less than the then current market price (as defined in
Section 11(d)) per Preferred Share of such series on such record date, the
Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of Preferred Shares
of such series outstanding on such record date plus the number of Preferred
Shares of such series which the aggregate offering price of the total number
of Preferred Shares of such series and/or equivalent preferred shares so to be
offered (and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market price and
the denominator of which shall be the number of Preferred Shares of such
series outstanding on such record date plus the number of additional Preferred
Shares of such series and/or equivalent preferred shares so to be offered for
subscription or purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription price may be
paid in a consideration part or all of which shall be in a form other than
cash, the value of such consideration shall be as determined reasonably and
with good faith to the holders of Rights by the Board, whose determination
shall be described in a statement filed with the Rights Agent and shall be
binding on the Rights Agent and conclusive for all purposes. Preferred Shares
owned by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed; and in the event that
such rights or warrants are not so issued, the Purchase Price shall be
adjusted to be the Purchase Price which would then be in effect if such record
date had not been fixed.
(c) If the Company shall fix a record date for the making of a
distribution to all holders of any series of Preferred Shares (including any
such distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation) of evidences of indebtedness, cash
(other than a regular quarterly dividend out of the earnings or retained
earnings of the Company), assets (other than a dividend payable in Preferred
Shares of such series, but including any dividend payable in stock other than
Preferred Shares of such series) or subscription rights or warrants (excluding
those referred to in Section 11(b)), the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the then current market price (as defined in Section 11(d)) per
Preferred Share of such series on such record date, less the fair market value
(as determined reasonably and with good faith to the holders of Rights by the
Board, whose determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent and conclusive for all
purposes) of the portion of the cash, assets or evidences of indebtedness so
to be distributed or of such subscription rights or warrants distributable in
respect of one Preferred Share of such series and the denominator of which
shall be the then current market price (as defined in Section 11(d)) per
Preferred Share of such series. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that such distribution
is not so made, the Purchase Price shall again be adjusted to be the Purchase
Price which would be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other than as
provided in Section 11(a)(iii), the "current market price" per share of the
Common Shares on any date shall be deemed to be the average of the daily
closing prices per share of such Common Shares for the thirty (30) consecutive
Trading Days (as such term is hereinafter defined) immediately prior to such
date; provided, however, that in the event that the current per share market
price of the Common Shares is determined during a period following the
announcement by the issuer of such Common Shares of (A) a dividend or
distribution on such Common Shares payable in such Common Shares or securities
convertible into such Common Shares or (B) any subdivision, combination or
reclassification of such Common Shares, and prior to the expiration of thirty
(30) Trading Days after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the "current market price"
shall be properly adjusted to take into account ex-dividend trading. The
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the Common Shares
are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange on
which the Common Shares are listed or admitted to trading or, if the Common
Shares are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated Quotation System
("Nasdaq") or such other system then in use, or, if on any such date the
Common Shares are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker
making a market in the Common Shares selected by the Board. If on any such
date no market maker is making a market in the Common Shares at issue, the
fair value of such shares on such date as determined reasonably and with good
faith by the Board shall be used and shall be binding on the Rights Agent and
conclusive for all purposes. The term "Trading Day" shall mean a day on which
the principal national securities exchange on which the Common Shares at issue
are listed or admitted to trading is open for the transaction of business or,
if the Common Shares at issue are not listed or admitted to trading on any
national securities exchange, a Business Day. If the Common Shares at issue
are not publicly held or not so listed or traded, "current market price" per
share shall mean the fair value per share determined reasonably and with good
faith to the holders of Rights by the Board, whose determination shall be
described in a statement filed with the Rights Agent and shall be binding on
the Rights Agent and conclusive for all purposes.
(ii) For the purpose of any computation hereunder, the "current
market price" per share (or one one-ten thousandth of a share) of the
Preferred Shares shall be determined in the same manner as set forth above for
Common Shares in Section 11(d)(i) (other than the last sentence thereof). If
the current market price per share (or one one-ten thousandth of a share) of
the Preferred Shares cannot be determined in the manner provided above or if
the Preferred Shares at issue are not publicly held or listed or traded in a
manner described in Section 11(d)(i), the "current market price" per share of
Series B Preferred Stock or Series C Preferred Stock shall be conclusively
deemed to be an amount equal to 10,000 (as such number may be appropriately
adjusted for such events as stock splits, stock dividends and recapitalization
with respect to the Series B Preferred Stock, the Series C Preferred Stock,
the Agouron Stock or the Oncology Division Stock, as the case may be,
occurring after the Agreement Date) multiplied by the current market price per
share of the Agouron Stock or the Oncology Division Stock, respectively, and
the "current market price" per one one-ten thousandth of a share of Series B
Preferred Stock or Series C Preferred Stock shall be conclusively deemed to be
an amount equal to the current market price per share of the Agouron Stock or
the Oncology Division Stock, respectively (and in each case as appropriately
adjusted). If neither the applicable Common Shares nor the applicable
Preferred Shares are publicly held or so listed or traded, "current market
price" per share shall mean the fair value per share as determined in good
faith by the Board, whose determination shall be described in a statement
filed with the Rights Agent and shall be conclusive for all purposes.
(e) Anything herein to the contrary notwithstanding, no adjustment in
the Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the Purchase Price;
PROVIDED, HOWEVER, that any adjustments which by reason of this Section 11(e)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section
11 shall be made to the nearest cent or to the nearest thousandth of a Common
Share or other share or one-ten millionth of a Preferred Share, as the case
may be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than the earlier
of (i) three (3) years from the date of the transaction which mandates such
adjustment or (ii) the Expiration Date.
(f) If as a result of any provision of this Section 11, the holder of
any Right thereafter exercised shall become entitled to receive any shares of
capital stock of the Company other than Preferred Shares of the series at
issue (i.e., Series B Preferred Stock in the case of Agouron Rights and Series
C Preferred Stock in the case of Oncology Rights), thereafter the number of
such other shares so receivable upon exercise of any Right shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Preferred Shares of such
series (and the related Purchase Price) contained in this Section 11, and the
provisions of Sections 7, 9, 10, 13 and 15 with respect to the Preferred
Shares of such series shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-ten
thousandths of a Preferred Share of the series at issue purchasable from time
to time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i), upon each adjustment of the Purchase Price as a result of
the calculations made in Section 11(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Purchase Price, that number of one
one-ten thousandths of a Preferred Share of the series at issue (calculated to
the nearest one-ten millionth) obtained by (i) multiplying (x) the number of
one one-ten thousandths of a Preferred Share covered by a Right immediately
prior to this adjustment by (y) the Purchase Price in effect immediately prior
to such adjustment of the Purchase Price and ii) dividing the product so
obtained by the Purchase Price in effect immediately after such adjustment of
the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of one one-ten thousandths of a Preferred Share
purchasable upon the exercise of a Right. Each of the Rights outstanding after
the adjustment in the number of Rights shall be exercisable for the number of
one one-ten thousandths of a Preferred Share for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest one millionth) obtained by dividing the Purchase
Price in effect immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the Purchase Price.
The Company shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment, and, if known
at the time, the amount of the adjustment to be made. This record date may be
the date on which the Purchase Price is adjusted or any day thereafter, but,
if the Rights Certificates have been issued, shall be at least ten (10) days
later than the date of the public announcement. If Rights Certificates have
been issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates on such record date
Rights Certificates evidencing, subject to Section 15, the additional Rights
to which such holders shall be entitled as a result of such adjustment, or, at
the option of the Company, shall cause to be distributed to such holders of
record in substitution and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment. Rights
Certificates so to be distributed shall be issued, executed and countersigned
in the manner provided for herein (and may bear, at the option of the Company,
the adjusted Purchase Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record date specified in the
public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of Preferred Shares issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may continue to
express the Purchase Price and the number of one one-ten thousandths of a
Preferred Share which were expressed in the initial Rights Certificates issued
hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then par value, if any, of the Preferred Shares,
Common Shares or other securities issuable upon exercise of the Rights
(aggregating, for this purpose, an appropriate amount of the Purchase Price
for fractional shares to compare such aggregated amount to the par value for a
whole share), the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly and
legally issue fully paid and nonassessable Preferred Shares, Common Shares or
other securities at such adjusted Purchase Price. If upon any exercise of the
Rights, a holder is to receive a combination of Common Shares and common share
equivalents, or Preferred Shares and equivalent preferred shares, a portion of
the consideration paid upon such exercise, equal to at least the then par
value, if any, of a Common Share or a Preferred Share, as the case may be,
shall be allocated as the payment for each Common Share or Preferred Share, as
the case may be, so received.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after such record date
the Preferred Shares and other capital stock or securities of the Company, if
any, issuable upon such exercise over and above the Preferred Shares and other
capital stock or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to such
adjustment; provided, however, that the Company shall deliver to such holder a
due xxxx or other appropriate instrument evidencing such holder's right to
receive such additional shares upon the occurrence of the event requiring such
adjustment.
(m) Anything to the contrary in this Section 11 notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to be advisable in
order that any consolidation or subdivision of Preferred Shares, any issuance
wholly for cash of any Preferred Shares at less than the current market price,
any issuance wholly for cash of Preferred Shares or securities which by their
terms are convertible into or exchangeable for Preferred Shares, any stock
dividends or any issuance of rights, options or warrants referred to
hereinabove in this Section 11, hereafter made by the Company to holders of
Preferred Shares shall not be taxable to such shareholders.
(n) Anything in this Agreement to the contrary notwithstanding, in
the event that the Company shall at any time after the Agreement Date and
prior to the Distribution Date (i) declare or pay any dividend on any series
of the outstanding Common Shares payable in Common Shares of the same series,
(ii) subdivide any series of the outstanding Common Shares, (iii) combine any
series of the outstanding Common Shares into a smaller number of shares or
(iv) issue any shares of its capital stock in a reclassification of any series
of the outstanding Common Shares, the number of Rights associated with each
Common Share of the series at issue then outstanding, or issued or delivered
thereafter but prior to the Distribution Date, shall be proportionately
adjusted so that the number of Rights thereafter associated with each such
share following any such event shall equal the result obtained by multiplying
the number of Rights associated with each Common Share of the series at issue
immediately prior to such event by a fraction the numerator of which shall be
the total number of Common Shares of the series at issue outstanding
immediately prior to the occurrence of the event and the denominator of which
shall be the total number of Common Shares of the series at issue outstanding
immediately following the occurrence of such event.
(o) The exercise of Rights under Section 11(a)(ii) shall only result
in the loss of rights under Section 11(a)(ii) to the extent so exercised and
shall not otherwise affect the rights represented by the Rights under this
Agreement, including the rights represented by Section 13.
12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES.
Whenever an adjustment is made as provided in Sections 11 and 13, the Company
shall (a) promptly prepare a certificate setting forth such adjustment and a
brief statement of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent and with each transfer agent for the Preferred Shares
and the Common Shares a copy of such certificate and
(c) mail a brief summary thereof to each holder of a Rights Certificate in
accordance with Section 26. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein contained and
shall not be deemed to have knowledge of any such adjustment unless and until
it shall have received such certificate. Notwithstanding the foregoing
provisions of this Section 12, the failure of the Company to make such
certification or give such notice shall not affect the validity of or the
force or effect of the requirement for such adjustment.
13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING
POWER.
(a) In the event that, following the Stock Acquisition Date, directly
or indirectly, (x) the Company shall consolidate with, or merge with and into,
any other Person, (y) any Person shall consolidate with the Company, or merge
with and into the Company and the Company shall be the continuing or surviving
corporation of such merger (other than, in the case of either transaction
described in (x) or (y), a merger or consolidation which would result in all
of the voting power represented by the securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into securities of the surviving entity) all
of the voting power represented by the securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation
and the holders of such securities not having changed as a result of such
merger or consolidation), or (z) the Company shall sell, mortgage or otherwise
transfer (or one or more of its subsidiaries shall sell, mortgage or otherwise
transfer), in one or more transactions, assets or earning power aggregating
more than fifty percent (50%) of the assets or earning power of the Company
and its subsidiaries (taken as a whole) to any other Person (any of the events
described in the foregoing clauses (x), (y) or (z) being herein referred to as
a "Section 13 Event"), then, and in each such case, proper provision shall be
made so that (i) following the Distribution Date, each holder of a Right
(other than as provided in Section 7(e)) shall have the right to receive, upon
the exercise thereof at the then current Purchase Price in accordance with the
terms of this Agreement, such number of freely tradable Common Shares of the
Principal Party (as hereinafter defined), free and clear of liens, rights of
call or first refusal, encumbrances or other adverse claims, as shall be equal
to the result obtained by (x) multiplying the then current Purchase Price by
the number of one one-ten thousandths of a Preferred Share for which a Right
is then exercisable (without taking into account any adjustment previously
made pursuant to Section 11(a)(ii)) and (y) dividing that product by fifty
percent (50%) of the current market price per share of the Common Shares of
such Principal Party (determined pursuant to Section 11(d)) on the date of
consummation of such consolidation, merger, sale or transfer; (ii) such
Principal Party shall thereafter be liable for, and shall assume, by virtue of
such consolidation, merger, sale or transfer, all the obligations and duties
of the Company pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to such Principal Party, it being specifically
intended that the provisions of Section 11 shall apply to such Principal
Party; and (iv) such Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of its Common Shares in
accordance with Section 9) in connection with such consummation as may be
necessary to assure that the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to its Common Shares thereafter
deliverable upon the exercise of the Rights.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clauses (x)
or (y) of the first sentence of this Section 13, the Person that is
the issuer of any securities into which Common Shares of the Company
are converted in such merger or consolidation, and if no securities
are so issued, the Person that is the other party to the merger or
consolidation (including, if applicable, the Company, if it is the
surviving corporation); and
(ii) in the case of any transaction described in clause (z)
of the first sentence in this Section 13, the Person that is the
party receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions; provided,
however, that in any such case, (A) if the Common Shares of such
Person are not at such time and have not been continuously over the
preceding twelve (12) month period registered under Section 12 of the
Exchange Act, and such Person is a direct or indirect subsidiary or
Affiliate of another Person the Common Shares of which have been so
registered, "Principal Party" shall refer to such other Person; (B)
in case such Person is a subsidiary, directly
or indirectly, or Affiliate of more than one Person, the Common
Shares of two or more of which are and have been so registered,
"Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Shares having the greatest aggregate market
value; and (C) in case such Person is owned, directly or indirectly,
by a joint venture formed by two or more Persons that are not owned,
directly or indirectly, by the same Person, the rules set forth in
(A) and (B) above shall apply to each of the chains of ownership
having an interest in such joint venture as if such party were a
"Subsidiary" of both or all of such joint venturers and the Principal
Parties in each such chain shall bear the obligations set forth in
this Section 13 in the same ratio as their direct or indirect
interests in such Person bear to the total of such interests.
(c) The Company shall not consummate any such consolidation, merger,
sale or transfer unless the Principal Party shall have a sufficient number of
authorized Common Shares that have not been issued or reserved for issuance to
permit the exercise in full of the Rights in accordance with this Section 13
and unless prior thereto the Company and each Principal Party and each other
Person who may become a Principal Party as a result of such consolidation,
merger, sale or transfer shall have executed and delivered to the Rights Agent
a supplemental agreement providing for the terms set forth in paragraphs (a)
and (b) of this Section 13 and further providing that, as soon as practicable
after the date of any Section 13 Event, the Principal Party at its own expense
shall:
(i) prepare and file a registration statement under the Act
with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, will use its best
efforts to cause such registration statement to become effective as
soon as practicable after such filing and will use its best efforts
to cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act) until
the Expiration Date;
(ii) use its best efforts to (x) qualify or register the
Rights and the securities purchasable upon exercise of the Rights
under the blue sky laws of such jurisdictions as may be necessary or
appropriate and (y) cause the Rights and the securities purchasable
upon exercise of the Rights to be listed on any national securities
exchange or national quotation system upon which its Common Shares
are listed, traded or quoted; and
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which
comply in all material respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive mergers
or consolidations or sales or other transfers. The rights under this Section
13 shall be in addition to the rights to exercise Rights and adjustments under
Section 11(a)(ii) and shall survive any exercise thereunder.
(d) Notwithstanding anything in this Agreement to the contrary,
Section 13 shall not be applicable to a transaction described in clauses (x)
and (y) of Section 13(a) if (i) such transaction is consummated with a Person
or Persons who acquired Common Shares of the Company pursuant to a Permitted
Offer (or a wholly owned subsidiary of any such Person or Persons), (ii) the
price per Common Share of each series offered in such transaction is not less
than the price per Common Share of the same series paid to all holders of such
Common Shares whose shares were purchased pursuant to such Permitted Offer and
(iii) the form of consideration being offered to the remaining holders of
Common Shares of each series pursuant to such transaction is the same as the
form of consideration paid to all holders of the Common Shares of the same
series pursuant to such Permitted Offer. Upon consummation of any such
transaction contemplated by this subsection (d), all Rights hereunder shall
expire.
14. ADDITIONAL COVENANTS.
(a) The Company covenants and agrees that after the Stock Acquisition
Date it shall not (i) consolidate with, (ii) merge with or into, or (iii) sell
or transfer to any other Person, in one or more transactions,
assets or earning power aggregating more than fifty percent (50%) of the
assets or earning power of the Company and its subsidiaries taken as a whole,
if at the time of or after such consolidation, merger or sale there are any
charter or bylaw provisions or any rights, warrants or other instruments
outstanding or any other action taken which would diminish or otherwise
eliminate the benefits intended to be afforded by the Rights. The Company
shall not consummate any such consolidation, merger or sale unless prior
thereto the Company and such other Person shall have executed and delivered to
the Rights Agent a supplemental agreement evidencing compliance with this
subsection.
(b) The Company covenants and agrees that, after the Stock
Acquisition Date, it will not, except as permitted by Section 24, take any
action the purpose or effect of which is to diminish or otherwise eliminate
the benefits intended to be afforded by the Rights.
15. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of Rights,
except prior to the Distribution Date as provided in Section 11(n), or to
distribute Rights Certificates which evidence fractional Rights. In lieu of
such fractional Rights, there shall be paid to the registered holders of the
Rights Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this Section 15(a),
the current market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price of the
Rights for any day shall be the last sale price, the last quoted price or, if
not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by Nasdaq or such other system then in
use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by
a professional market maker making a market in the Rights selected by the
Board. If on any such date no such market maker is making a market in the
Rights, the fair value of the Rights on such date as determined reasonably and
with good faith to the holders of Rights by the Board shall be used and shall
be binding on the Rights Agent and conclusive for all purposes.
(b) The Company shall not be required to issue fractions of Preferred
Shares (other than fractions which are integral multiples of one one-ten
thousandth of a Preferred Share) upon exercise of the Rights or to distribute
certificates which evidence fractional Preferred Shares (other than fractions
which are integral multiples of one one-ten thousandth of a Preferred Share).
Fractions of Preferred Shares in integral multiples of one one-ten thousandth
of a Preferred Share may, at the election of the Company, be evidenced by
depositary receipts, pursuant to an appropriate agreement between the Company
and a depositary selected by it, provided that such agreement shall provide
that the holders of such depositary receipts shall have all the rights,
privileges and preferences to which they are entitled as beneficial owners of
the fractional interests in Preferred Shares represented by such depositary
receipts. In lieu of fractional Preferred Shares that are not integral
multiples of one one-ten thousandth of a Preferred Share, the Company may pay
to the registered holders of Rights Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction of
the current market price of one one-ten thousandth of a Preferred Share (as
determined pursuant to Section 11(d) for the Trading Day immediately prior to
the date of such exercise).
(c) Following the occurrence of a Triggering Event, the Company shall
not be required to issue fractions of Common Shares or units of common share
equivalents or other securities upon exercise of the Rights or to distribute
certificates which evidence fractional shares of such common share equivalents
or other securities. In lieu of fractional shares or units of such common
share equivalents or other securities, the Company may pay to the registered
holders of Rights Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of a share or unit of such common share equivalent or other securities.
For purposes of this Section 15(c), the current market value shall be
determined in the manner set forth in Section 11(d) for the Trading Day
immediately prior to the date of such exercise and, if a common share
equivalent is not traded, each such common share equivalent shall have the
value of one one-ten thousandth of a Preferred Share (as determined pursuant
to Section 11(d) for the Trading Day immediately prior to the date of
exercise).
(d) Except as otherwise expressly provided herein, the holder of a
Right by the acceptance of the Rights expressly waives such holder's right to
receive any fractional Rights or any fractional shares (other than, in the
case of Preferred Shares, fractions which are integral multiples of one
one-ten thousandth of a Preferred Share) upon exercise of a Right.
16. RIGHTS OF ACTION. All rights of action in respect of this
Agreement, except those rights of action vested in the Rights Agent pursuant
to Section 21, are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of
the Common Shares); and any registered holder of any Rights Certificate (or,
prior to the Distribution Date, of the Common Shares), without the consent of
the Rights Agent or of the holder of any other Rights Certificate (or, prior
to the Distribution Date, of the Common Shares), may, in such holder's own
behalf and for such holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, such holder's right to exercise the Rights
evidenced by such Rights Certificate in the manner provided in such Rights
Certificate and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and shall be entitled to specific performance of the
obligations hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to this
Agreement. Holders of Rights shall be entitled to recover the reasonable costs
and expenses, including attorneys' fees, incurred by them in any action to
enforce the provisions of this Agreement.
17. AGREEMENT OF RIGHTS HOLDERS. Every holder of a Right by accepting
the same consents and agrees with the Company and the Rights Agent and with
every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common Shares;
(b) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the principal office of the Rights Agent, duly endorsed or accompanied by a
proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the Person in
whose name a Rights Certificate (or, prior to the Distribution Date, the
associated Common Shares certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Rights Certificates or the associated Common
Shares certificate made by anyone other than the Company or the Rights Agent)
for all purposes whatsoever, and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary.
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any
holder of a Right or other Person as a result of the inability of the Company
or the Rights Agent to perform any of its or their obligations under this
Agreement by reason of any preliminary or permanent injunction or other order,
decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by any
governmental authority prohibiting or otherwise restraining performance of
such obligation.
18. RIGHTS CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER. No holder, as
such, of any Rights Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the Preferred Shares, Common Shares
or any other securities of the Company which may at any time be issuable upon
exercise of the Rights represented thereby, nor shall anything contained
herein or in any Rights Certificate be construed to confer upon the holder of
any Rights Certificate, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting shareholders (except as provided in Section 25), or to
receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by such Rights Certificate shall have been
exercised in accordance with the provisions thereof.
19. CONCERNING THE RIGHTS AGENT. The Company agrees to pay to the
Rights Agent reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its reasonable expenses
and counsel fees and disbursements and other disbursements incurred in the
administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss, liability, or
expense, incurred without negligence, bad faith or willful misconduct on the
part of the Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement, including
the costs and expenses of defending against any claim of liability arising
therefrom, directly or indirectly.
The Rights Agent shall be protected and shall incur no liability for
or in respect of any action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance upon any Rights
Certificate or certificate for Common Shares or for other securities of the
Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement or other
paper or document believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper Person or Persons.
20. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT. Any
corporation or other entity into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation or other entity resulting from any merger or consolidation to
which the Rights Agent or any successor Rights Agent shall be a party, or any
corporation or other entity succeeding to the corporate trust or shareholder
services business of the Rights Agent or any successor Rights Agent, shall be
the successor to the Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, provided that such corporation or other entity would be eligible for
appointment as a successor Rights Agent under the provisions of Section 22. In
case at the time such successor Rights Agent shall succeed to the agency
created by this Agreement, any of the Rights Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor or
in the name of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates in
this Agreement.
In case at any time the name of the Rights Agent shall be changed and
at such time any of the Rights Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in its prior name
or in its changed name; and in all such cases such Rights Certificates shall
have the full force provided in the Rights Certificates and in this Agreement.
21. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Rights
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel selected by it
(who may be legal counsel for the Company), and the opinion of such counsel
shall be full and complete authorization and protection to the Rights Agent as
to any action taken or omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person and the
determination of "current market price") be proved or established by the
Company prior to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a certificate
signed by the President, any
Vice President, the Chief Financial Officer, the Secretary or any Assistant
Secretary of the Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement
in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Rights Certificates (except as to the fact that it has countersigned the
Rights Certificates) or be required to verify the same, but all such
statements and recitals are and shall be deemed to have been made by the
Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in respect of the validity or
execution of any Rights Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights Certificate; nor shall
it be responsible for any adjustment required under the provisions of Section
11 or 13 or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that would require
any such adjustment (except with respect to the exercise of Rights evidenced
by Rights Certificates after receipt of a certificate pursuant to Section 12
describing any such adjustment); nor shall it be responsible for any
determination by the Board of the current market value of the Rights or
Preferred Shares or Common Shares pursuant to the provisions of Section 15;
nor shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Preferred Shares or
other securities to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any Preferred Shares or other securities will,
when so issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder and
certificates delivered pursuant to any provision hereof from the President,
any Vice President, the Secretary, any Assistant Secretary or the Chief
Financial Officer of the Company, and is authorized to apply to such officers
for advice or instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer. Any application by the
Rights Agent for written instructions from the Company may, at the option of
the Rights Agent, set forth in writing any action proposed to be taken or
omitted by the Rights Agent with respect to its duties or obligations under
this Agreement and the date on and/or after which such action shall be taken
or omitted and the Rights Agent shall not be liable for any action taken or
omitted in accordance with a proposal included in any such application on or
after the date specified therein (which date shall not be less than three (3)
Business Days after the date any such officer actually receives such
application, unless any such officer shall have consented in writing to an
earlier date) unless, prior to taking or omitting any such action, the Rights
Agent has received written instructions in response to such application
specifying the action to be taken or omitted.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were
not the Rights Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or for any
other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, omission, default, neglect or
misconduct of any such attorneys or agents or
for any loss to the Company or to the holders of the Rights resulting from any
such act, omission, default, neglect or misconduct, provided reasonable care
was exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds
or adequate indemnification against such risk or liability is not reasonably
assured to it.
(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to
such requested exercise or transfer without first consulting with the Company.
22. CHANGE OF RIGHTS AGENT. The Rights Agent or any successor Rights
Agent may resign and be discharged from its duties under this Agreement upon
thirty (30) days notice in writing mailed to the Company and to each transfer
agent of the Common Shares and Preferred Shares by registered or certified
mail, and to holders of the Rights Certificates by first-class mail. The
Company may remove the Rights Agent or any successor Rights Agent upon thirty
(30) days notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Common Shares and
Preferred Shares by registered or certified mail, and to the holders of the
Rights Certificates by first-class mail. If the Rights Agent shall resign or
be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to make
such appointment within a period of thirty (30) days after giving notice of
such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder of
a Rights Certificate (who shall, with such notice, submit such holder's Rights
Certificate for inspection by the Company), then the registered holder of any
Rights Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be (a) a corporation or
other entity organized and doing business under the laws of the United States
or of the State of New York or the State of California (or of any other state
of the United States so long as such corporation or other entity is authorized
to do business as a banking institution in the State of New York or the State
of California), in good standing, having a principal office in the State of
New York or the State of California, which is authorized under such laws to
exercise corporate trust or shareholder services powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $50,000,000.00 or (b) an affiliate of a corporation or other entity
described in clause (a) of this sentence. After appointment, the successor
Rights Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary for the purpose. Not later than the effective date of any such
appointment the Company shall mail notice thereof in writing to the
predecessor Rights Agent and each transfer agent of the Common Shares and
Preferred Shares, and mail a notice thereof in writing to the registered
holders of the Rights Certificates. Failure to give any notice provided for in
this Section 22, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
23. ISSUANCE OF NEW RIGHTS CERTIFICATES. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company
may, at its option, issue new Rights Certificates evidencing Rights in such
form as may be approved by the Board to reflect any adjustment or change in
the Purchase Price per share and the number or kind or class of shares or
other securities or property purchasable under the Rights Certificates made in
accordance with the provisions of this Agreement. In addition, in connection
with the issuance or sale of Common Shares following the Distribution Date and
prior to the redemption or expiration of the Rights, the Company (a) shall,
with respect to Common Shares so issued or sold pursuant to the exercise of
stock options or otherwise under any employee plan or arrangement, which plan
or arrangement is existing as of the Distribution Date, or upon the exercise,
conversion or exchange of any other securities issued by the Company on or
prior to the Distribution Date, and (b) may, in any other case, if deemed
necessary or appropriate by the Board, issue Rights
Certificates representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such Rights Certificates
shall be issued if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material adverse
tax consequences to the Company or the Person to whom such Rights Certificates
would be issued, and (ii) no such Rights Certificates shall be issued if, and
to the extent that appropriate adjustment shall otherwise have been made in
lieu of the issuance thereof.
24. REDEMPTION, TERMINATION AND EXCHANGE.
(a) (i) The Board may, at its option, at any time prior to the
earlier of (x) the Stock Acquisition Date or (y) 5:00 p.m., Pacific time, on
the Final Expiration Date, redeem all but not less than all of the then
outstanding Rights at a redemption price of $[0.0005] per Right in the case of
the Agouron Rights and $[0.001] per Right in the case of the Oncology Rights,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the Agreement Date (each such redemption price
being hereinafter referred to, as the case may be, as the "Redemption Price").
(ii) In addition, and notwithstanding the provisions of
Section 24(a)(i), the Board may redeem all but not less than all of the then
outstanding Rights at the Redemption Price following the Stock Acquisition
Date but prior to any Section 13 Event either (x) in connection with any
Section 13 Event in which all holders of each series of Common Shares are
treated alike with all other holders of such series and not involving (other
than as a holder of Common Shares being treated like all other such holders on
a series-by-series basis) an Acquiring Person or an Affiliate or Associate
thereof or any other Person in which such Acquiring Person or Affiliate or
Associate thereof has any interest, or any other Person acting directly or
indirectly on behalf of or in association with any such Acquiring Person or
Affiliate or Associate thereof, or (y) following the occurrence of a Section
11 Event, and the expiration of any period during which the holder of Rights
may exercise the rights under Section 11(a)(ii) as a result thereof, if and
for as long as any Acquiring Person having triggered the Section 11 Event at
issue is not thereafter the Beneficial Owner of Common Shares representing
fifteen percent (15%) or more of the total Voting Rights of all the Common
Shares then outstanding, and at the time of redemption there are no other
Persons who are Acquiring Persons.
(b) In the case of a redemption permitted under Section 24(a)(i),
immediately upon the action of the Board ordering the redemption of the
Rights, evidence of which shall have been filed with the Rights Agent and
without any further action and without any notice, the right to exercise the
Rights will terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price. In the case of a redemption
permitted only under Section 24(a)(ii), evidence of which shall have been
filed with the Rights Agent, the right to exercise the Rights will terminate
and represent only the right to receive the Redemption Price only after ten
(10) Business Days following the giving of notice of such redemption to the
holders of such Rights if no Section 11 Event shall have occurred, and, if a
Section 11 Event shall have occurred, upon the later of ten (10) Business Days
following the giving of such notice or the expiration of any period during
which the Rights may be exercised under Section 11(a)(ii) as a result thereof.
Within ten (10) days after the action of the Board ordering any such
redemption of the Rights, the Company shall give notice of such redemption to
the Rights Agent and the holders of the then outstanding Rights by mailing
such notice to the Rights Agent and to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent for the
Common Shares. Any notice which is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each such
notice of redemption will state the method by which the payment of the
Redemption Price will be made.
In the case of a redemption permitted under Section 24(a)(i) or (ii),
the Company may, at its option, discharge all of its obligations with respect
to the Rights by (i) issuing a press release announcing the manner of
redemption of the Rights and (ii) mailing payment of the Redemption Price to
the registered holders of the Rights at their last addresses as they appear on
the registry books of the Rights Agent or, prior to the Distribution Date, on
the registry books of the transfer agent of the Common Shares, and upon such
action, all outstanding Rights Certificates shall be null and void without any
further action by the Company.
(c) (i) Subject to the limitations of applicable laws, the Board may,
at its option and at any time after any Person becomes an Acquiring Person,
exchange all or part of the then outstanding and exercisable Rights (which
shall not include Rights that have become void pursuant to the provisions of
Section 7(e)) for (A) Common Shares at an exchange ratio of one share of
Agouron Stock for each Agouron Right and one share of Oncology Division Stock
for each Oncology Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the Agreement Date
(referred to herein as the "Agouron Exchange Shares" and the "Oncology
Exchange Shares," as the case may be), or (B) Substitute Consideration (as
that term is defined below). The Board may determine, in its sole discretion,
whether to deliver Exchange Shares or Substitute Consideration.
Notwithstanding the foregoing, the Board shall not be empowered to effect such
exchange at any time after any Person (other than the Company, any subsidiary
of the Company, any employee benefit plan of the Company or any such
subsidiary, or any entity holding Common Shares for or pursuant to the terms
of any such plan), together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of Common Shares representing fifty percent (50%)
or more of the total Voting Rights of all the Common Shares then outstanding.
(ii) In the event the Board shall determine to deliver
Substitute Consideration in exchange for Rights, the Company shall (A)
determine the value of the Agouron Exchange Shares and the Oncology Exchange
Shares (referred to herein as the "Agouron Exchange Value" and the "Oncology
Exchange Value," as the case may be), and (B) with respect to each Agouron
Right or Oncology Right to be exchanged, make adequate provision to substitute
for Agouron Exchange Shares and Oncology Exchange Shares, respectively, the
following (the "Substitute Consideration"): (v) cash, (w) Common Shares or
common share equivalents (as that term is defined in Section 11(a)(iii)) or
Preferred Shares or equivalent preferred shares (as that term is defined in
Section 11(b)), (x) debt securities of the Company, (y) other assets, or (z)
any combination of the foregoing, having an aggregate value equal to the
Agouron Exchange Value or the Oncology Exchange Value, as the case may be,
where such aggregate value has been determined by the Board based upon the
advice of a nationally recognized investment banking firm selected by the
Board. For purposes of this Section 24(c), the value of a Common Share
(insofar as the same relates to the determination of the value of Agouron
Exchange Shares and Oncology Exchange Shares) shall be the current per share
market price (as determined pursuant to Section 11(d)) of such Common Shares
on the day that is the later of (x) the first occurrence of a Section 11 Event
or (y) the date on which the Company's right of redemption pursuant to Section
24(a)(i) expires; and the value of any common share equivalent shall be deemed
to have the same value as the related Common Share on such date.
(iii) Immediately upon the action of the Board ordering the
exchange of any Rights pursuant to this Section 24(c), and without any further
action and without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such Rights shall be to
receive Agouron Exchange Shares or Oncology Exchange Shares, as applicable, or
appropriate Substitute Consideration for each Right exchanged by such holder.
The Company shall promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company promptly shall mail a notice
of any such exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights Agent. Any
notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of exchange
will state the method by which the exchange of Common Shares (or Substitute
Consideration) for Rights will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights
which have become void pursuant to the provisions of Section 7(e)) held by
each holder of Rights.
(iv) In the event that there shall not be sufficient Common
Shares or Preferred Shares issued but not outstanding or authorized but
unissued to permit any exchange of Rights as contemplated in accordance with
this Section 24(c), the Company shall take all such action as may be necessary
to authorize additional Common Shares or Preferred Shares for issuance upon
exchange of the Rights.
(v) The Company shall not be required to issue fractions of
Common Shares or to distribute certificates which evidence fractional Common
Shares. In lieu of such fractional Common Shares, the Company shall pay to the
registered holders of the Rights Certificates with regard to which such
fractional Common Shares would otherwise be issuable an amount in cash equal
to the same fraction of the current market value of a whole
Common Share. For the purposes of this Section 24(c)(v), the current market
value of a whole Common Share shall be the closing price of a Common Share (as
determined pursuant to Section 11(d)) for the Trading Day immediately prior to
the date of exchange pursuant to this Section 24(c).
25. NOTICE OF CERTAIN EVENTS. In case the Company shall propose (a)
to pay any dividend payable in stock of any class to any holders of Preferred
Shares or to make any other distribution to any holders of Preferred Shares
(other than a regular quarterly dividend out of earnings or retained earnings
of the Company) or (b) to offer to any holders of Preferred Shares rights or
warrants to subscribe for or to purchase any additional Preferred Shares or
shares of stock of any class or any other securities, rights or options, or
(c) to effect any reclassification of Preferred Shares (other than a
reclassification involving only the subdivision of outstanding Preferred
Shares), or (d) to effect any consolidation or merger into or with, or to
effect any sale or other transfer (or to permit one or more of its
subsidiaries to effect any sale or other transfer), in one or more
transactions, of more than fifty percent (50%) of the assets or earning power
of the Company and its subsidiaries (taken as a whole) to, any other Person,
or (e) to effect the liquidation, dissolution or winding up of the Company,
then, in each such case, the Company shall give to each holder of a Rights
Certificate, in accordance with Section 26, a notice of such proposed action,
which shall specify the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by holders of the Preferred Shares, if any such date is to be fixed,
and such notice shall be so given in the case of any action covered by clause
(a) or (b) above at least twenty (20) days prior to the record date for
determining holders of the Preferred Shares for purposes of such action, and
in the case of any such other action, at least twenty (20) days prior to the
date of the taking of such proposed action or the date of participation
therein by holders of the Preferred Shares, whichever shall be the earlier.
In case any Triggering Event shall occur, then, in any such case, the
Company or the Principal Party, as the case may be, shall as soon as
practicable thereafter give to each holder of a Rights Certificate, in
accordance with Section 26, a notice of the occurrence of such Triggering
Event, which shall specify the Triggering Event and the consequences of the
Triggering Event to holders of Rights under Section 11(a)(ii) or 13(a), as the
case may be.
The failure to give notice required by this Section 25 or any defect
therein shall not affect the legality or validity of the action taken by the
Company or the vote upon any such action.
26. NOTICES. Notices or demands authorized by this Agreement to be
given or made by the Rights Agent or by the holder of any Rights Certificate
to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, or sent by nationwide overnight delivery,
addressed (until another address is filed in writing with the Rights Agent) as
follows:
Agouron Pharmaceuticals, Inc.
00000 Xxxxx Xxxxxx Xxxxx Xxxx
Xx Xxxxx, XX 00000
Attention: President
Subject to the provisions of Section 22, any notice or demand
authorized by this Agreement to be given or made by the Company or by the
holder of any Rights Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid, or
sent by nationwide overnight delivery, addressed (until another address is
filed in writing with the Company) as follows:
ChaseMellon Shareholder Services, L.L.C.
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
Attention: Compliance Area
Notices or demands authorized by this Agreement to be given or made
by the Company or the Rights Agent to the holder of any Rights Certificate
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, or sent by nationwide overnight delivery, addressed to such holder at
the address of such holder as shown on the registry books of the Company.
Each such notice or demand shall be effective (i) if given by mail,
three (3) days after the notice or demand is deposited in the mails with first
class postage prepaid, addressed as specified herein, (ii) if given by
nationwide overnight delivery, the date of delivery at the address specified
herein or (iii) if given by any other means, the date of delivery at the
address specified herein.
27. SUPPLEMENTS AND AMENDMENTS.
(a) The Company and the Rights Agent may from time to time supplement
or amend this Agreement without approval of any holders of Rights or Rights
Certificates in order (i) to cure any ambiguity, (ii) to correct or supplement
any provision contained herein which may be defective or inconsistent with any
other provisions herein, (iii) prior to the Distribution Date, to change or
supplement any provision hereunder in any manner which the Company may deem
necessary or desirable, or (iv) on or following the Distribution Date, to
change or supplement any provision hereunder in any manner which the Company
may deem necessary or desirable and which shall not adversely affect the
interests of the holders of Rights Certificates. Upon the delivery of a
certificate from an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement or amendment unless
the Rights Agent shall have determined in good faith that such supplement or
amendment would adversely affect its interests under this Agreement.
b) Prior to the Distribution Date, the interests of the holders of
Agouron Rights shall be deemed coincident with the interests of the holders of
Agouron Stock and the interests of the holders of Oncology Rights shall be
deemed coincident with the interests of the holders of Oncology Division
Stock.
28. DETERMINATION AND ACTIONS BY THE BOARD, ETC.
(a) For all purposes of this Agreement, any calculation of the number
of Common Shares outstanding at any particular time (or the total Voting
Rights pertaining thereto), including for purposes of determining the
particular percentage of such outstanding Common Shares or any other
securities of which any Person is the Beneficial Owner (or the total Voting
Rights pertaining thereto), shall be made in accordance with the last sentence
of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange
Act as in effect on the Agreement Date.
(b) The Board shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers specifically
granted to the Board or the Company, or as may be necessary or advisable in
the administration of this Agreement, including, without limitation, the right
and power to (i) interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the Rights or to
amend this Agreement). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all omissions
with respect to the foregoing) which are done or made by the Board in good
faith shall (x) be final, conclusive and binding on the Company, the Rights
Agent, the holders of the Rights Certificates and all other parties and (y)
not subject the Board to any liability to the holders of the Rights
Certificates.
29. SUCCESSORS. All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
30. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and
the registered holders of the Rights Certificates (and, prior to the
Distribution Date, the Common Shares) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders
of the Rights Certificates (and, prior to the Distribution Date, the Common
Shares).
31. SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
32. GOVERNING LAW. This Agreement, each Right and each Rights
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of California and for all purposes shall be governed by and
construed in accordance with the laws of such state applicable to contracts to
be made and to be performed entirely within such state.
33. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one
and the same instrument.
34. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
Attest: AGOURON PHARMACEUTICALS, INC.
By By
Title Title
Attest: CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By By
Title Title
EXHIBIT A
[AMENDED AND RESTATED
ARTICLES OF INCORPORATION]
OF
AGOURON PHARMACEUTICALS, INC.
[to be attached]
EXHIBIT B
Form of Rights Certificate
Certificate No. [AR/OR] R-_____________ _____________ Rights
NOT EXERCISABLE AFTER NOVEMBER 21, 2006 OR EARLIER IF NOTICE OF
REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $[0.0005] PER RIGHT IN THE CASE OF THE
AGOURON RIGHTS AND $[0.001] PER RIGHT IN THE CASE OF THE ONCOLOGY
RIGHTS, ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. [THE RIGHTS
REPRESENTED BY THIS RIGHTS CERTIFICATE WERE ISSUED TO A PERSON WHO
WAS AN ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE OF AN
ACQUIRING PERSON, AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT.
THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME
VOID UNDER THE CIRCUMSTANCES SPECIFIED IN SECTION 7(E) OF THE RIGHTS
AGREEMENT.]1
RIGHTS CERTIFICATE
AGOURON PHARMACEUTICALS, INC.
This certifies that ___________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Amended and Restated Rights Agreement dated as of November [XXX], 1998
(the "Rights Agreement") between Agouron Pharmaceuticals, Inc., a California
corporation (the "Company"), and Xxxxx Xxxxxx Shareholder Services, L.L.C.
(the "Rights Agent"), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and prior
to 5:00 p.m. (Pacific time) on November 21, 2006, at the office of the Rights
Agent designated for such purpose, one one-ten thousandth of a fully paid,
nonassessable share of Series [B/C] Participating Preferred Stock (the
"Preferred Shares") of the Company, at a purchase price of [$250.00/[XXX.XX]]
per one one-ten thousandth of a share (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate with the appropriate
Form of Election to Purchase and Certificate duly executed. The number of
Rights evidenced by this Rights Certificate (and the number of one one-ten
thousandths of a share which may be purchased upon exercise hereof) set forth
above, and the Purchase Price set forth above, are the number and Purchase
Price as of the close of business on [XXXX XXX], 1998, based on the Preferred
Shares as constituted at such date.
Upon the occurrence of a Triggering Event (as such term is defined in
the Rights Agreement), if the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person (as such term is defined in the
Rights Agreement), (ii) a transferee of any such Acquiring Person or an
Associate or Affiliate thereof (as such terms are defined in the Rights
Agreement), or (iii) under certain circumstances specified in the Rights
Agreement, a transferee of an Acquiring Person, or an Affiliate or Associate
of an Acquiring Person, such Rights shall become null and void and no holder
hereof shall have any right with respect to such Rights from and after the
occurrence of any such Triggering Event.
As provided in the Rights Agreement, the Purchase Price and the
number and kind of Preferred Shares or other securities which may be purchased
upon the exercise of the Rights evidenced by this Rights Certificate are
subject to modification and adjustment upon the happening of certain events.
This Rights Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to
which Rights Agreement reference is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Rights Certificates.
Copies of the Rights Agreement are on file at the principal office of the
Company and are also available upon written request to the Company.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the office of the Rights Agent designated for such purpose,
may be exchanged for another Rights Certificate or Rights Certificates of like
tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of Preferred Shares as the Rights evidenced by the Rights
Certificate or Rights Certificates surrendered shall have entitled such holder
to purchase. If this Rights Certificate shall be exercised (other than
pursuant to Section 11(a)(ii) of the Rights Agreement) in part, the holder
shall be entitled to receive upon surrender hereof another Rights Certificate
or Rights Certificates for the number of whole Rights not exercised. If this
Rights Certificate shall be exercised in whole or in part pursuant to Section
11(a)(ii) of the Rights Agreement, the holder shall be entitled to receive
this Rights Certificate duly marked to indicate that such exercise has
occurred as set forth in the Rights Agreement.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may, but are not required to, be redeemed by the
Company at its option at a redemption price of [[$0.0005/$0.001]] per Right.
Subject to the provisions of the Rights Agreement, the Company, at its option,
may elect to mail payment of the redemption price to the registered holder of
the Rights at the time of redemption, in which event this certificate may
become void without any further action by the Company.
No fractional Preferred Shares will be issued upon the exercise of
any Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-ten thousandth of a Preferred Share, which may, at the
election of the Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of the
Preferred Shares or of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder hereof, as
such, any of the rights of a shareholder of the Company or any right to vote
for the election of directors or upon any matter submitted to shareholders at
any meeting thereof, or to give or withhold consent to any corporate action,
or to receive notice of meetings or other actions affecting shareholders
(except as provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by this
Rights Certificate shall have been exercised as provided in the Rights
Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated: ______________.
Attest: AGOURON PHARMACEUTICALS, INC.
By __________________________ By _______________________________
Title ______________________ Title ____________________________
Countersigned:
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By _________________________
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED, _______________________________
hereby sells, assigns and transfers unto
---------------- ---------------------------------------------------------------
(please print name and address of transferee)
_______________________________________________________________ this Rights
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint _______________ Attorney, to
transfer the within Rights Certificate on the books of the within-named
Company, with full power of substitution.
Dated: _______________.
----------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by an Eligible Guarantor Institution,
as defined in Rule 17Ad-15 under the Securities Exchange Act of 1934.
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate _ are _ are not
being sold, assigned and transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of any such Acquiring Person
(as such terms are defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
it _ did _ did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: ______________.
----------------------------------
Signature
NOTICE
The signature to the foregoing Assignment must correspond to the name
as written upon the face of this Rights Certificate in every particular,
without alteration or enlargement or any change whatsoever.
In the event the Certificate set forth above is not completed, the
Company will deem the beneficial owner of the Rights evidenced by this Rights
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) and will affix a legend to that effect on any
Rights Certificate issued in exchange for this Rights Certificate.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Rights Certificate pursuant to
Section 11(a)(ii) of the Rights Agreement.)
To AGOURON PHARMACEUTICALS, INC.:
The undersigned hereby irrevocably elects to exercise __________
Rights represented by this Rights Certificate to purchase the Common Shares
(or such other securities of the Company) issuable upon the exercise of the
Rights and requests that certificates for such shares be issued in the name
of:
----------------------------------------------------------------
(Please insert social security or other identifying number)
----------------------------------------------------------------
(Please print name and address)
----------------------------------------------------------------
The Rights Certificate shall be returned to the undersigned
(indicating the balance, if any, of such Rights which may still be exercised
pursuant to Section 11(a)(ii) of the Rights Agreement) unless such Person
requests that the Rights Certificate be registered in the name of and
delivered to:
----------------------------------------------------------------
Please insert social security or other identifying number (complete only if
Rights Certificate is to be registered in a name other than the undersigned)
----------------------------------------------------------------
(Please print name and address)
----------------------------------------------------------------
Dated: ______________.
----------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by an Eligible Guarantor Institution,
as defined in Rule 17Ad-15 under the Securities Exchange Act of 1934.
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate _ are _ are not
being exercised by or on behalf of a Person who is or was an Acquiring Person
or an Affiliate or Associate of any such Acquiring Person (as such terms are
defined pursuant to the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
it _ did _ did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: ______________.
----------------------------------
Signature
NOTICE
The signature to the foregoing Election to Purchase must correspond
to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
In the event the Certificate set forth above is not completed, the
Company will deem the beneficial owner of the Rights evidenced by this Rights
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement).
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
the Rights Certificate other than pursuant to
Section 11(a)(ii) of the Rights Agreement.)
To AGOURON PHARMACEUTICALS, INC.:
The undersigned hereby irrevocably elects to exercise _________
Rights represented by this Rights Certificate to purchase the Preferred
Shares (or such other securities of the Company or any other Person)
issuable upon the exercise of the Rights and requests that certificates for
such shares be issued in the name of:
----------------------------------------------------------------
(Please insert social security or other identifying number)
----------------------------------------------------------------
(Please print name and address)
----------------------------------------------------------------
If applicable, the Rights Certificate indicating the balance, if any,
of such Rights which may still be exercised pursuant to Section 11(a)(ii) of
the Rights Agreement shall be returned to the undersigned unless such Person
requests that the Rights Certificate be registered in the name of and
delivered to:
----------------------------------------------------------------
Please insert social security or other identifying number (complete only if
Rights Certificate is to be registered in a name other than the undersigned)
----------------------------------------------------------------
(Please print name and address)
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Dated: ______________.
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Signature
Signature Guaranteed:
Signatures must be guaranteed by an Eligible Guarantor Institution,
as defined in Rule 17Ad-15 under the Securities Exchange Act of 1934.
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate _ are _ are not
being exercised by or on behalf of a Person who is or was an Acquiring Person
or an Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
it _ did _ did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: ______________.
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Signature
NOTICE
The signature to the foregoing Election to Purchase must correspond
to the name as written upon the fact of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
In the event the Certificate set forth above is not completed, the
Company will deem the beneficial owner of the Rights evidenced by this Rights
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement).
