EXHIBIT 7
STANDSTILL AGREEMENT
THIS STANDSTILL AGREEMENT (this "Agreement") is entered into as of January
25, 1999 by and between Peptide Therapeutics Group plc, a corporation organized
under the laws of England and Wales ("Peptide"), and Pasteur Merieux Serums &
Vaccins S.A., a societe anonyme existing and organized under the laws of the
Republic of France ("PMC").
WHEREAS, Peptide, Peach Acquisition Corp. and OraVax, Inc. ("OraVax") have
entered into an Agreement and Plan of Acquisition, dated November 10, 1998 (the
"Merger Agreement"), whereby OraVax is to be acquired by Peptide by way of a
merger (the "Merger") of OraVax with and into Peach Acquisition Corp.;
WHEREAS, simultaneously with the execution of this Agreement, Peptide and
PMC have entered into an agreement (the "Overview Agreement") whereby Peptide
has agreed, to, among other things, cause OraVax, upon the effective time of the
Merger (the "Effective Time"), to enter into certain agreements providing for
the licensing to PMC of specific OraVax technology;
WHEREAS, in connection with the execution of the Overview Agreement, the
parties hereto wish to provide herein, among other things, for certain
agreements regarding PMC's ability to take certain actions with respect to
OraVax pending the Effective Time;
NOW, THEREFORE, in consideration of the mutual agreements herein set forth
and for other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
PMC STANDSTILL
1.1 PMC agrees that, prior to the earlier of the Effective Time and the
date of the termination of this Agreement pursuant to Article II below, PMC
shall not, and shall cause each of its affiliates (as defined in Rule 12b-2
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) not to, directly or indirectly:
(a) acquire or make any proposal to acquire any securities of OraVax
(except by way of stock dividends or other distributions or offerings made
by OraVax on a pro rata basis to its security holders) or seek or propose
any merger, consolidation, business combination, tender or exchange offer
or sale or purchase of all or a substantial portion of the assets of
OraVax, it being understood that nothing in this Section 1.1 shall restrict
the ability of PMC and its affiliates as it relates to enforcement of PMC's
rights arising under that certain loan and security arrangement dated
November 2, 1998 between PMC and OraVax JVM, Inc.;
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(b) make, or in any way participate in, any "solicitation" of
"proxies" (as such terms are used in the proxy rules of the Securities and
Exchange Commission) to vote, or seek to advise or influence any person
with respect to the voting of, any voting securities of OraVax;
(c) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting
securities of OraVax or in connection with any of the foregoing;
(d) have any discussions or enter into any arrangements,
understandings or agreements with, or advise, assist or encourage, any
other persons in connection with any of the foregoing; or
(e) announce an intention to do any of the foregoing.
1.2 The parties agree that the foregoing shall not restrict PMC from
entering into negotiations with OraVax regarding (i) a licensing transaction
with respect to any of the Proprietary Rights which are the subject of any of
Annexes A - C to the Overview Agreement, or (ii) an Acquisition Proposal, if in
either case, OraVax initiates negotiations with PMC or PMC knows or becomes
aware that OraVax or Peptide (or any of their respective officers, members of
the board of directors, or any person acting at the direction of, or to the
knowledge of any of the foregoing) initiates negotiations with a third party
with respect to any of the foregoing.
ARTICLE II
TERMINATION
2.1 This Agreement may be terminated at any time prior to the Effective
Time:
(a) By mutual written consent of the parties hereto;
(b) By PMC or Peptide, by written notice to the other, upon the
termination of the Merger Agreement (provided that, with respect to PMC's
termination right hereunder, the termination of the Merger Agreement does
not result from the breach by PMC of Article I of this Agreement); or
(c) By PMC, by written notice to Peptide (provided that with respect
to PMC's termination right hereunder the occurrence of the events under
clauses (i), (ii), (iii), or (iv) hereunder, as applicable in the
particular instance, giving rise to the termination right, does not result
from the breach by PMC of Article I of this Agreement):
(i) upon the public announcement of the commencement of, or an
intention to commence or make, a tender offer or exchange offer
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by any person other than PMC or an affiliate of PMC for
securities of OraVax;
(ii) upon the occurrence of any event that would entitle Peptide to
terminate the Merger Agreement under any of Section 9.1(c)(ii)
[board recommendation or improper response to Acquisition
Proposal], Section 9.1(d)(i) - (iv) [outside date, injunction,
shareholder rejection], or Section 9.1(c)(i) [breach] if the
circumstances permitting such termination relate to a breach of
Section 5.1(a)(iv) [preservation of intellectual property rights]
or Section 5.2(b)(ii) [disposition of material assets], if in
either case the assets at issue are Proprietary Rights which are
the subject of Annexes A - C to the Overview Agreement or Section
5.10 [no solicitation], (provided that such right to terminate
the Merger Agreement does not result from the breach by PMC of
Article I of this Agreement), irrespective of any waivers or
extensions of time to perform that may be given by Peptide to
OraVax under the Merger Agreement and irrespective of any breach
by Peptide of any representations, warranties, covenants or other
agreements contained in the Merger Agreement;
(iii) upon the public announcement of, or PMC otherwise becoming
aware of, the submission to OraVax by any person other than
PMC or an affiliate of PMC of a bona fide Acquisition
Proposal (as defined in the Merger Agreement), which in the
reasonable judgment of PMC is capable of being financed and
consummated by the person making the Acquisition Proposal;
or
(iv) upon the modification, amendment or waiver of any term or
condition of the Merger Agreement (x) which is reasonably
determined by PMC to be adverse to the stockholders of
OraVax (it being understood that a reduction in the amount
per share or nature or method of payment of consideration to
the common stockholders of OraVax shall be deemed to be
adverse) or (y) which extends the July 31, 1999 outside
termination date under the Merger Agreement.
2.2 Peptide shall promptly notify PMC if it becomes aware that there has
occurred any event referenced in Sections 2.1(c)(ii) above or of the submission
of an Acquisition Proposal referenced in Section 2.1(c)(iii) above.
2.3 No termination of this Agreement shall relieve any party from
liability by reason of any breach by such party of any of its covenants or
representations contained herein occurring prior to the termination of this
Agreement.
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ARTICLE III
REPRESENTATIONS
3.1 Each of the parties hereto represents and warrants with respect to
itself that such party is duly authorized to execute, deliver and perform this
Agreement, that this Agreement has been duly executed and delivered by such
party and that this Agreement is a valid and binding agreement of such party,
enforceable against such party in accordance with its terms.
ARTICLE IV
MISCELLANEOUS
4.1 All notices and other communications required or permitted hereunder
shall be in writing and shall be deemed given when so delivered in person, one
business day after delivery to an overnight courier, upon facsimile transmission
(with receipt confirmed by telephone or by automatic transmission report) or two
business days after being sent by registered or certified mail (postage prepaid,
return receipt requested), as follows:
(a) If to Peptide, to:
Peptide Therapeutics Group plc
000 Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxx Xxxx
Xxxxxxxxx XX0 0XX
Xxxxxxx
Attn: Chief Executive
Telephone: 00000 000000
Facsimile: 01223 423341
with a copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to PMC, to:
Pasteur Merieux Serums & Vaccins S.A.
00, xxxxxx Xxxxxxx
00000 Xxxx, Xxxxxx
Attn: Senior Vice President, Corporate and Legal Affairs,
and General Counsel
Telephone: 000 00 0 00 00 00 84
Facsimile: 011 33 4 37 37 70 61
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with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: L. Xxxxx X'Xxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may by notice given in accordance with this Section 4.1 to the other
party designate another address or person for receipt of notices hereunder.
4.2 This Agreement shall be construed in accordance with and governed by
the internal laws of the State of Delaware. Each party hereby irrevocably
submits to the non-exclusive jurisdiction of any state or federal court in the
State of Delaware or the State of New York with respect to any suit, action,
proceeding or judgment relating to or arising out of this Agreement. PMC agrees
that money damages would not be sufficient remedy for Peptide for any breach of
this Agreement by PMC, and that in addition to all other remedies Peptide may
have, Peptide shall be entitled to specific performance and to injunctive or
other equitable relief as a remedy for any such breach. PMC agrees not to oppose
the granting of such relief in the event a court determines that such breach has
occurred, and agrees to waive any requirement for the securing or posting of any
bond in connection with such remedy.
4.3 This Agreement may be amended, modified or supplemented only by
written agreement of the parties hereto.
4.4 This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. This Agreement is not assignable without the prior
written consent of the other party hereto.
4.5 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
4.6 This Agreement contains the entire agreement between the parties in
respect of the subject matter contained herein, and supersedes all prior
agreements, written or oral, with respect thereto.
4.7 If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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4.8 Notwithstanding anything to the contrary contained herein, the
Agreement and the obligation of the parties hereunder shall terminate on October
31, 1999 to the extent this Agreement has not been otherwise terminated prior to
that date.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first written above.
PEPTIDE THERAPEUTICS GROUP PLC
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Commercial Director
PASTEUR MERIEUX SERUMS & VACCINS S.A.
By: /s/ Xxxx Xxxxxxxxxxx
----------------------
Name: Xxxx Xxxxxxxxxxx
Title: Corporate Vice President
