AMENDMENT NO. 1
to AMENDED AND RESTATED
GOVERNANCE AGREEMENT
This Amendment No. 1 ("Amendment No. 1") is made this 20th day of May, 1999
(the "Amendment Effective Date") by and between AMERICAN CYANAMID COMPANY, a
corporation organized and existing under the laws of the State of Maine
("CYANAMID") and a wholly-owned subsidiary of AMERICAN HOME PRODUCTS
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware and having its principal office at Five Xxxxxxx Xxxxx, Xxxxxxx, Xxx
Xxxxxx 00000 ("AHPC") and IMMUNEX CORPORATION, a corporation organized and
existing under the laws of the State of Washington and having its principal
office at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 ("IMMUNEX"), and
amends the Amended and Restated Governance Agreement dated as of December 15,
1992, among American Cyanamid Company, Immunex Corporation and Lederle Oncology
Corporation (the "Governance Agreement").
WHEREAS, AHPC and IMMUNEX have entered into a certain Note Purchase
Agreement dated as of the date hereof, pursuant to which IMMUNEX has issued, and
AHPC has purchased, a 3% Convertible Subordinated Note due 2006 in the principal
amount of $450 million ("Note"), which Note is convertible, in whole or in part,
into common stock of IMMUNEX at a specified price per share, subject to
adjustment in certain circumstances;
WHEREAS, AHPC and IMMUNEX have agreed that the shares that are subject to
issuance to AHPC upon conversion of the Note may be included in the calculation
of AHPC's and CYANAMID's ownership of Immunex common stock for certain purposes
under the Governance Agreement;
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, each intending to be legally
bound, hereby agree as follows:
1. All initially capitalized terms used herein and not defined shall have
the meanings set forth in the Governance Agreement.
2. Article II of the Governance Agreement shall be amended to add the
following new provision, Section 2.03, as follows:
2.03 Common Stock issuable upon Conversion of Note. The Common Stock
issuable upon conversion of the Note issued by the Company and purchased by
American Home Products Corporation ("AHPC") pursuant to the Note Purchase
Agreement dated as of May 20, 1999 shall, at the option of Cyanamid, regardless
of whether the Note is converted by AHPC so long as AHPC or its Affiliates hold
the Note, be included in (i) "Cyanamid's Interest" for purposes of Article IV;
(ii) Cyanamid's "Pro Rata Share" for purposes of Section 2.01; (iii) Cyanamid's
"Owned Shares" for purposes of Section 2.02 (and shall be deemed to be issued
and outstanding as of the Quarterly Date immediately preceding the effective
date of the Note Purchase Agreement) ; and (iv) "Registrable Securities" for
purposes of Article VI.
3. Article V of the Governance Agreement shall be amended to add the
following new provision, Section 5.01(h), as follows:
(h) The Note issued by the Company and purchased by AHPC pursuant to the
Note Purchase Agreement dated as of May 20, 1999 shall not be deemed to be an
interest in New Shares for purposes of Section 5.01(c) hereof and AHPC shall
have the right to transfer such Note in accordance with the terms of the Note
Purchase Agreement. Notwithstanding the foregoing, however, the Common Stock
issuable upon conversion of such Note shall, when and if issued, be deemed to be
New Shares for purposes of this Article V.
4. The first clause of Section 6.03(d) shall be deleted in its entirety and
replaced as follows:
(d) The Company shall not be obligated to effect more than three
registrations pursuant to this Section 6.03;
5. Except as otherwise set forth in this Amendment No. 1, all other terms
and provisions of the Governance Agreement shall remain in full force and
effect.
6. This Amendment No. 1 may be executed in counterparts, each of which
shall be deemed an original and all of which shall constitute together one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
as of the day and year first above written.
IMMUNEX CORPORATION
By:________________________________
Xxxxxx X. Xxxxxxx
Chairman and Chief
Executive Officer
AMERICAN CYANAMID COMPANY
By:________________________________
Name:__________________________
Title:_________________________
AMERICAN HOME PRODUCTS CORPORATION
By:________________________________
Name:__________________________
Title:_________________________
