EXHIBIT 10.37
MYRIAD GENETICS, INC.
STANDSTILL AGREEMENT
THIS AGREEMENT, dated as of April 22, 1997, is between SCHERING
CORPORATION, a New Jersey corporation having a place of business at 0000
Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx (the "Purchaser"), and Myriad
Genetics, Inc. (the "Company"), a Delaware corporation having a place of
business at 000 Xxxxxx Xxx, Xxxx Xxxx Xxxx, Xxxx.
WITNESSETH:
WHEREAS on the date hereof, the Purchaser is acquiring 129,665 shares (the
"Shares") of common stock, $.01 par value per share ("Common Stock"), of the
Company pursuant to the terms of a Stock Purchase Agreement dated as of the date
hereof (the "Stock Purchase Agreement"); and
WHEREAS the execution and delivery of this Agreement by the Purchaser is a
condition precedent to the Company's obligations under the Stock Purchase
Agreement and a Research Collaboration and License Agreement (the "Collaboration
Agreement") among the parties and Schering-Plough Ltd. dated as of the date
hereof (the parties hereby acknowledging that, solely for purposes of Section
3.09 hereof, the term "Collaboration Agreement" shall mean the "Research Term"
as defined in Section 2.8 of the Collaboration Agreement) ;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration the receipt of which is hereby acknowledged, the parties,
intending to be legally bound hereby, agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
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The Purchaser hereby represents and warrants to the Company as follows:
(a) The Purchaser has full legal right, power and authority to enter
into and perform this Agreement. The execution and delivery of this Agreement by
the Purchaser and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on behalf of such
Purchaser. This Agreement is a valid and binding obligation of the Purchaser
enforceable against it in accordance with its terms, except that such
enforcement may be subject to (i) bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and contracting parties' rights generally and (ii)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(b) Neither the execution and delivery of this Agreement by the
Purchaser nor the consummation by it of the transactions contemplated hereby
conflicts with or constitutes a violation of or default under the charter, by-
laws or other constituent document of the Purchaser, any statute, law,
regulation, order or decree applicable to the Purchaser, or any contract,
commitment, agreement, arrangement or restriction of any kind to which the
Purchaser is a party or by which it is bound.
ARTICLE II
LIMITATIONS AND RESTRICTIONS
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Section 2.01 Definitions. As used in this Agreement:
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(a) "Affiliate" shall mean any entity controlling, controlled by or
under common control with a Purchaser, and "control" shall mean ownership of
more than 50% of stock entitled to vote for directors or more than 50% of the
equity of any non-corporate entity, or such other relationship which constitutes
actual control to the extent necessary to prevent any action prohibited
hereunder;
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(b) "group" shall have the meaning with which such term is used in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); and
(c) "person" shall have the meaning with which such term is used in
Section 13(d)(3) under the Exchange Act and under Section 2(2) of the Securities
Act of 1933, as amended (the "Securities Act").
Section 2.02 Restrictions on Certain Actions by the Purchaser. Except (i)
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with the written consent of the Company (which shall not be unreasonably
withheld) or (ii) by way of stock dividends or other distributions or offerings
made available to the Company's shareholders generally, the Purchaser agrees
that during the term of this Agreement, it will not, nor will any of its
Affiliates:
(a) acquire, announce an intention to acquire, offer or propose to
acquire, solicit an offer to sell or agree to acquire, by purchase, by gift, by
joining a partnership, limited partnership, syndicate or other group or
otherwise, any shares of Common Stock or other voting securities of the Company,
or any other Company securities convertible into, exchangeable for or
exercisable for Common Stock or other voting securities of the Company (all such
securities, collectively, "Voting Securities"); provided, however, that this
Section 2.02(a) shall not prohibit the Purchaser or its Affiliates from
proposing collaborative research agreements or license agreements with the
Company; and provided, further, that this Section 2.02(a) shall not apply unless
and until the Purchaser (together with its Affiliates) has acquired beneficial
ownership (as such term is used under Section 13(d) of the Exchange Act) of five
percent (5%) of the Common Stock of the Company;
(b) participate in the formation of any person or group, or join with
any person or group, which owns or seeks to acquire beneficial ownership of
Voting Securities, for the purpose of acquiring Voting Securities;
(c) solicit, or participate in any "solicitation" of "proxies" or
become a "participant" in any "election contest" (as such terms are defined or
used in Regulation 14A under the Exchange Act, these terms to have such meaning
throughout this Agreement) with respect to the Company;
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(d) initiate, propose or otherwise solicit stockholders for the
approval of, one or more stockholder proposals with respect to the Company, or
induce any other person to initiate any stockholder proposal;
(e) seek to place any representative on the Board of Directors of the
Company, or seek to have called any meeting of the stockholders of the Company;
(f) deposit any Voting Securities in a voting trust or subject them
to a voting agreement or other agreement or arrangement with respect to the
voting of such Voting Securities;
(g) otherwise act, alone or in concert with others, to seek to
control the management, Board of Directors, policies or affairs of the Company
or solicit, propose, seek to effect or negotiate with any other person
(including, without limitation, the Company) with respect to any form of
business combination or other extraordinary transaction with the Company or any
of its subsidiaries or any restructuring, recapitalization, similar transaction
or other transaction not in the ordinary course of business with respect to the
Company or any of its subsidiaries, or solicit, make or propose or negotiate
with any other person with respect to, or announce an intent to make, any tender
offer or exchange offer for any securities of the Company or any of its
subsidiaries, or publicly disclose an intent, purpose, plan or proposal with
respect to the Company, any of its subsidiaries or any securities or assets of
the Company or any of its subsidiaries, that would violate the provisions of
this Section 2.02, or assist, participate in, facilitate or solicit any effort
or attempt by any person to do so or seek to do any of the foregoing.
Section 2.03 Employee Benefit Plans. For the avoidance of doubt, it is
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hereby agreed that the restrictions contained in Section 2.02 shall not apply to
any pension plan or other employee benefit plan of the Purchaser or its
Affiliates which is administered by an independent trustee or trustees.
Section 2.04 Freedom to Vote. Nothing contained herein shall prevent the
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Purchaser or any of its Affiliates from voting any equity securities owned by
them in their sole discretion, and to that extent, seeking to influence the
policies or affairs of the Company.
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ARTICLE III
MISCELLANEOUS
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Section 3.01 Interpretation. For all purposes of this Agreement, the term
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Common Stock shall include any securities of the Company entitled to vote
generally for the election of directors of the Company which securities the
holders of the Common Stock shall have received or as a matter of right be
entitled to receive as a result of (i) any capital reorganization or
reclassification of the capital stock of the Company or, (ii) any consolidation,
merger or share exchange of the Company with another corporation in which the
Company survives after such transaction; provided, however, that nothing in this
Agreement shall preclude the Purchaser or its Affiliates from acquiring or being
entitled to acquire Common Stock in exchange for their shares of stock in the
Company in any such transaction.
Section 3.02 Enforcement. (a) The Purchaser acknowledges and agrees that
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irreparable damage would occur if any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise breached
and that monetary damages would be an inadequate remedy therefor. Accordingly,
the Company will be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically its provisions in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which the Company may be entitled at law or in
equity.
(b) No failure or delay on the part of the Company in the exercise of
any power, right or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or
privilege.
Section 3.03 Entire Agreement. This Agreement, together with the
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applicable provisions of the Stock Purchaser Agreement and the Collaboration
Agreement, constitute the entire understanding of the parties with respect to
the transactions contemplated hereby. This Agreement may be amended only by an
agreement in writing executed by all the parties.
Section 3.04 Severability. If any provision of this Agreement is held by
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a court of competent jurisdiction to be unenforceable, the remaining provisions
shall remain in full force and effect. It is
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declared to be the intention of the parties that they would have executed the
remaining provisions without including any that may be declared unenforceable.
Section 3.05 Headings. Descriptive headings are for convenience only and
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will not control or affect the meaning or construction of any provision of this
Agreement.
Section 3.06 Counterparts. This Agreement may be executed in one or more
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counterparts, and each such executed counterpart will be an original instrument.
Section 3.07 Notices. All notices, consents, requests, instructions,
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approvals and other communications provided for in this Agreement will be
validly given or made, if in writing and delivered personally, by telecopy or
sent by registered mail postage paid:
if to the Company: Myriad Genetics, Inc.
000 Xxxxxx Xxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: President
with a copy to: Xxxxxxxx X. Xxxxxxx, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
if to the Purchaser: Schering-Plough Corporation
0000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Vice President, Business Development
with copies to: Schering Corporation
0 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Executive Vice President
and General Counsel
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or to such other address or telecopy number as any party may, from time to time,
designate in a written notice given in a like manner. Notice by telecopy shall
be deemed delivered on the day telephone confirmation of receipt is given.
Section 3.08 Successors and Assigns. This Agreement shall bind the
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successors and assigns of the parties, and inure to the benefit of any successor
or assign of any of the parties; provided, however, that no party may assign
this Agreement without the other party's prior written consent, and provided,
further, that this Agreement shall not be binding upon any purchaser of the
Shares from the Purchaser or an Affiliate of the Purchaser in a transaction
effected on a public trading market or pursuant to a public offering.
Section 3.09 Term. The term on of this Agreement shall commence on the
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date first referred to above and terminate upon the termination of the
Collaboration Agreement but in any event not earlier than the fifth (5/th/)
anniversary of the date hereof.
Section 3.10 Governing Law. This Agreement will be governed by and
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construed and enforced in accordance with the laws of the State of Delaware,
without giving effect to the conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first referred to above.
MYRIAD GENETICS, INC.
By: /s/Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President and CEO
SCHERING CORPORATION
By: /s/Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: VICE PRESIDENT
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