EXECUTION COPY
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SHAREHOLDER VOTING AGREEMENT
BY AND AMONG
AMGEN INC.
AMERICAN HOME PRODUCTS CORPORATION,
MDP HOLDINGS, INC. AND
LEDERLE PARENTERALS, INC.
Dated as of December 16, 2001
SHAREHOLDER VOTING AGREEMENT
This SHAREHOLDER VOTING AGREEMENT (this "Agreement") is entered
into as of December 16, 2001, by and among Amgen Inc., a Delaware
corporation ("Parent"), American Home Products Corporation, a Delaware
corporation ("AHP"), MDP Holdings, Inc., a Delaware corporation and
wholly-owned subsidiary of AHP ("Sub 1"), and Lederle Parenterals, Inc., a
New Jersey corporation and wholly-owned subsidiary of AHP ("Sub 2" and,
together with AHP and Sub 1, the "Shareholders").
W I T N E S S E T H:
WHEREAS, as of the date hereof, each Shareholder "beneficially
owns" (as such term is defined in Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended) and is entitled to dispose of
(or to direct the disposition of) and to vote (or to direct the voting of)
the number of shares of common stock, par value $0.01 per share (the
"Common Stock"), of Immunex Corporation, a Washington corporation (the
"Company"), set forth opposite such Shareholder's name on Schedule I hereto
(such shares of Common Stock, together with any other shares of Common
Stock the voting power over which is acquired by any Shareholder during the
period from and including the date hereof through and including the date on
which this Agreement is terminated in accordance with its terms, are
collectively referred to herein as the "Subject Shares");
WHEREAS, Parent, AMS Acquisition Inc., a Washington corporation
and a wholly-owned subsidiary of Parent ("Merger Sub"), and the Company
propose to enter into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), pursuant to which Merger Sub will merge
with and into the Company, with the Company surviving as a wholly-owned
subsidiary of Parent (the "Merger"); and
WHEREAS, as a condition to the willingness of Parent to enter into
the Merger Agreement, and as an inducement and in consideration therefor,
each Shareholder is executing this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms. For purposes of this Agreement,
capitalized terms used and not defined herein shall have the respective
meanings ascribed to them in the Merger Agreement.
Section 1.2 Other Definitions. For purposes of this Agreement:
(a) "Affiliate" means, with respect to any specified Person, any
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified. For purposes of this Agreement, with respect to each
Shareholder, the term "Affiliate" shall not include the Company and the
Persons that directly, or indirectly through one or more intermediaries,
are controlled by the Company.
(b) "Governance Agreement" means the Amended and Restated
Governance Agreement by and among the Company, American Cyanamid Company
and Lederle Oncology Corporation, dated as of December 15, 1992, as
amended.
(c) "Person" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization,
other entity or group.
(d) "Representative" means, with respect to any particular Person,
any director, officer, employee, accountant, consultant, legal counsel,
investment banker, advisor, agent or other representatives of such Person.
ARTICLE II
VOTING AGREEMENT AND IRREVOCABLE PROXY
Section 2.1 Agreement to Vote the Subject Shares. Each
Shareholder, in its capacity as such, hereby agrees that, during the period
commencing on the date hereof and continuing until the termination of this
Agreement (such period, the "Voting Period"), at any meeting (or any
adjournment or postponement thereof) of the Company's shareholders, however
called, or in connection with any written consent of the Company's
shareholders, such Shareholder shall vote (or cause to be voted) its
Subject Shares (x) in favor of the approval of the terms of the Merger
Agreement, the Merger and the other transactions contemplated by the Merger
Agreement (and any actions required in furtherance thereof), (y) against
any action, proposal, transaction or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any
other obligation or agreement of the Company contained in the Merger
Agreement or of any Shareholder contained in this Agreement, and (z) except
with the written consent of Parent, against the following actions or
proposals (other than the transactions contemplated by the Merger
Agreement): (i) any Acquisition Proposal; and (ii) (A) any change in the
persons who constitute the board of directors of the Company that is not
approved in advance by at least a majority of the persons who were
directors of the Company as of the date of this Agreement (or their
successors who were so approved); (B) any material change in the present
capitalization of the Company or any amendment of the Company's articles of
incorporation or bylaws; (C) any other material change in the Company's
corporate structure or business; or (D) any other action or proposal
involving the Company or any of its subsidiaries that is intended, or could
reasonably be expected, to prevent, impede, interfere with, delay, postpone
or adversely affect the transactions contemplated by the Merger Agreement;
provided, however, that nothing in this Agreement shall limit or affect any
actions taken by any member of the board of directors of the Company
nominated by, or appointed at the request of, AHP solely in his or her
capacity as a director of the Company; provided, further, that nothing in
this Agreement shall be interpreted as obligating the Shareholders to
exercise any options to acquire shares of Common Stock. Any such vote shall
be cast or consent shall be given in accordance with such procedures
relating thereto so as to ensure that it is duly counted for purposes of
determining that a quorum is present and for purposes of recording the
results of such vote or consent. Each Shareholder agrees not to enter into
any agreement or commitment with any Person the effect of which would be
inconsistent with or violative of the provisions and agreements contained
in this Article II.
Section 2.2 Grant of Irrevocable Proxy. Each Shareholder hereby
appoints Parent and any designee of Parent, and each of them individually,
as such Shareholder's proxy and attorney-in-fact, with full power of
substitution and resubstitution, to vote or act by written consent during
the Voting Period with respect the Subject Shares in accordance with
Section 2.1. This proxy is given to secure the performance of the duties of
each Shareholder under this Agreement. The Shareholders shall promptly
cause a copy of this Agreement to be deposited with the Company at its
principal place of business. Each Shareholder shall take such further
action or execute such other instruments as may be necessary to effectuate
the intent of this proxy.
Section 2.3 Nature of Irrevocable Proxy. The proxy and power of
attorney granted pursuant to Section 2.2 by each Shareholder shall be
irrevocable during the term of this Agreement, shall be deemed to be
coupled with an interest sufficient in law to support an irrevocable proxy
and shall revoke any and all prior proxies granted by such Shareholder. The
power of attorney granted by each Shareholder herein is a durable power of
attorney and shall survive the dissolution, bankruptcy, death or incapacity
of such Shareholder. The proxy and power of attorney granted hereunder
shall terminate upon the termination of this Agreement.
ARTICLE III
COVENANTS
Section 3.1 Generally.
(a) Except for pledges in existence as of the date hereof, each
Shareholder agrees that during the Voting Period, except as contemplated by
the terms of this Agreement, it shall not (i) sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of (collectively, a
"Transfer"), or enter into any contract, option or other agreement with
respect to, or consent to, a Transfer of, any or all of the Subject Shares;
provided, however, that any Shareholder may Transfer any or all of its
Subject Shares to any other Shareholder or to any wholly owned subsidiary
of AHP that agrees in writing to be bound by the terms of this Agreement
and, with the consent of Parent (which consent shall not be unreasonably
withheld), may pledge or encumber any Subject Shares so long as such pledge
or encumbrance would not impair any Shareholder's ability to perform its
obligations under this Agreement; or (ii) take any action that would have
the effect of preventing, impeding, interfering with or adversely affecting
its ability to perform its obligations under this Agreement.
(b) In the event of a stock dividend or distribution, or any
change in the Common Stock by reason of any stock dividend or distribution,
split-up, recapitalization, combination, exchange of shares or the like,
the term "Subject Shares" shall be deemed to refer to and include the
Subject Shares as well as all such stock dividends and distributions and
any securities into which or for which any or all of the Subject Shares may
be changed or exchanged or which are received in such transaction.
(c) AHP agrees that it shall not, and it shall cause its
controlled Affiliates not to, (i) directly or indirectly, acquire
additional shares of Common Stock (including through the exercise of
subscription rights as set forth in Section 2.01 of the Governance
Agreement or quarterly purchase rights as set forth in Section 2.02 of the
Governance Agreement) or (ii) exercise any of the registration rights set
forth in Article VI of the Governance Agreement.
Section 3.2 Standstill Obligations of Shareholders. Each
Shareholder, jointly and severally, covenants and agrees with Parent that,
during the Voting Period:
(a) Such Shareholder shall not, nor shall such Shareholder permit
any controlled Affiliate of such Shareholder to, nor shall such Shareholder
act in concert with or permit any controlled Affiliate to act in concert
with any Person to make, or in any manner participate in, directly or
indirectly, a "solicitation" of "proxies" (as such terms are used in the
rules of the Securities and Exchange Commission) or powers of attorney or
similar rights to vote, or seek to advise or influence any Person with
respect to the voting of, any shares of Common Stock in connection with any
vote or other action on any matter, other than to recommend that
shareholders of the Company vote in favor of the Merger and the Merger
Agreement and otherwise as expressly provided by Article II of this
Agreement.
(b) Such Shareholder shall not, nor shall such Shareholder permit
any controlled Affiliate of such Shareholder to, nor shall such Shareholder
act in concert with or permit any controlled Affiliate to act in concert
with any Person to, deposit any shares of Common Stock in a voting trust or
subject any shares of Common Stock to any arrangement or agreement with any
Person with respect to the voting of such shares of Common Stock, except as
provided by Article II of this Agreement.
(c) Such Shareholder shall not, and shall direct its
Representatives not to, directly or indirectly, through any officer,
director, agent or otherwise, enter into, solicit, initiate, conduct or
continue any discussions or negotiations with, or knowingly encourage or
respond to any inquiries or proposals by, or provide any information to,
any Person, other than Parent, relating to any Acquisition Proposal;
provided, however, that, in connection with Acquisition Proposals as to
which Parent has received a Superior Proposal Notice, AHP may provide
information and engage in discussions to the same extent as the Company is
so permitted pursuant to Section 6.4(c) of the Merger Agreement. Each
Shareholder hereby represents that it is not now engaged in discussions or
negotiations with any party other than Parent with respect to any
Acquisition Proposal. Promptly after receipt of any Acquisition Proposal or
any request for nonpublic information or inquiry which it reasonably
believes could lead to an Acquisition Proposal, AHP shall provide Parent
with written notice of the material terms and conditions of such
Acquisition Proposal, request or inquiry, and the identity of the person or
group making any such Acquisition Proposal, request or inquiry, and a copy
of all written materials provided in connection with such Acquisition
Proposal, request or inquiry. After receipt of the Acquisition Proposal,
request or inquiry, AHP shall promptly keep Parent informed in all material
respects of the status and details (including material amendments or
proposed material amendments) of any such Acquisition Proposal, request or
inquiry.
(d) Notwithstanding any of the provisions of this Agreement, AHP
has two representatives on the Company's Board of Directors and such
persons will act in their capacities as directors of the Company in
accordance with their fiduciary duties to the Company and its shareholders.
Section 3.3 Further Agreements of Parent. Parent hereby covenants
and agrees with the Shareholders that it shall take all reasonably
necessary actions to ensure that immediately following the Effective Time,
each Shareholder or its designee shall receive the Cash Consideration in
immediately available funds with respect to such number of Subject Shares
for which such Shareholder is entitled to receive pursuant to the terms of
the Merger Agreement; provided, that such Shareholder or its designee shall
have surrendered to Parent a Certificate or Certificates evidencing such
number of Subject Shares together with a letter or letters of transmittal
in accordance with Section 2.2 of the Merger Agreement, duly executed and
completed in accordance with the instructions thereto. The remainder of the
Merger Consideration that the Shareholders would be entitled to under the
Merger Agreement would be distributed following the Effective Time in the
manner set forth in the Merger Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF EACH SHAREHOLDER
Each Shareholder hereby represents and warrants, jointly and
severally, to Parent as follows:
Section 4.1 Due Organization, etc. Each Shareholder is a company
duly organized and validly existing under the laws of the jurisdiction of
its incorporation. Each Shareholder has all necessary corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby by
each Shareholder have been duly authorized by all necessary action on the
part of such Shareholder.
Section 4.2 Ownership of Shares. Schedule I sets forth, opposite
each Shareholder's name, the number of shares of Common Stock over which
such Shareholder has record and beneficial ownership as of the date hereof.
As of the date hereof, each Shareholder is the lawful owner of the shares
of Common Stock denoted as being owned by such Shareholder on Schedule I
and has the sole power to vote (or cause to be voted) such shares of Common
Stock. Except as set forth on such Schedule I and as provided in the
Governance Agreement, no Shareholder nor any Affiliate of a Shareholder
owns or holds any right to acquire any additional shares of any class of
capital stock of the Company or other securities of the Company or any
interest therein or any voting rights with respect to any securities of the
Company. Each Shareholder has good and valid title to the Common Stock
denoted as being owned by such Shareholder on Schedule I, free and clear of
any and all pledges, mortgages, liens, charges, proxies, voting agreements,
encumbrances, adverse claims, options, security interests and demands of
any nature or kind whatsoever, other than those created by this Agreement
or provided in the Governance Agreement or as could not reasonably be
expected to impair any Shareholder's ability to perform its obligations
under this Agreement.
Section 4.3 No Conflicts. (i) No filing with any governmental
authority, and no authorization, consent or approval of any other Person is
necessary for the execution of this Agreement by any Shareholder and the
consummation by any Shareholder of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by the
Shareholders, the consummation by any Shareholder of the transactions
contemplated hereby or compliance by any Shareholder with any of the
provisions hereof shall (A) conflict with or result in any breach of the
organizational documents of any Shareholder, (B) result in, or give rise
to, a violation or breach of or a default under any of the terms of any
material contract, understanding, agreement or other instrument or
obligation to which any Shareholder is a party or by which any Shareholder
or any of its Subject Shares or assets may be bound, or (C) violate any
applicable order, writ, injunction, decree, judgment, statute, rule or
regulation, except for any of the foregoing as could not reasonably be
expected to impair any Shareholder's ability to perform its obligations
under this Agreement.
Section 4.4 Reliance by Parent. Each Shareholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance
upon the execution and delivery of this Agreement by such Shareholder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to the Shareholders as
follows:
Section 5.1 Due Organization, etc. Parent is a company duly
organized and validly existing under the laws of the jurisdiction of its
incorporation. Parent has all necessary corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by Parent have been
duly authorized by all necessary action on the part of Parent.
Section 5.2 Conflicts. (i) No filing with any governmental
authority, and no authorization, consent or approval of any other Person is
necessary for the execution of this Agreement by Parent and the
consummation by Parent of the transactions contemplated hereby and (ii)
none of the execution and delivery of this Agreement by Parent, the
consummation by Parent of the transactions contemplated hereby shall (A)
conflict with or result in any breach of the organizational documents of
Parent, (B) result in, or give rise to, a violation or breach of or a
default under any of the terms of any material contract, understanding,
agreement or other instrument or obligation to which Parent is a party or
by which Parent or any of its assets may be bound, or (C) violate any
applicable order, writ, injunction, decree, judgment, statute, rule or
regulation, except for any of the foregoing as could not reasonably be
expected to impair Parent's ability to perform its obligations under this
Agreement.
Section 5.3 Reliance by the Shareholders. Parent understands and
acknowledges that the Shareholders are entering into this Agreement in
reliance upon the execution and delivery of the Merger Agreement by Parent.
ARTICLE VI
Termination
Section 6.1 Termination. This Agreement shall terminate, and none
of Parent or any Shareholder shall have any rights or obligations hereunder
and this Agreement shall become null and void and have no effect upon the
earliest to occur of (i) the mutual consent of Parent and AHP, (ii) the
Effective Time, (iii) the date of termination of the Merger Agreement in
accordance with its terms, (iv) the date of any modification, waiver or
amendment to the Merger Agreement in a manner that reduces either the
Exchange Ratio or the Cash Consideration, and (v) December 31, 2002;
provided, however, that termination of this Agreement shall not prevent any
party hereunder from seeking any remedies (at law or in equity) against any
other party hereto for such party's breach of any of the terms of this
Agreement. Notwithstanding the foregoing, Section 7.1 and Sections 7.5
through 7.18, inclusive, of this Agreement shall survive the termination of
this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Appraisal Rights. To the extent permitted by
applicable law, each Shareholder hereby waives any rights of appraisal or
rights to dissent from the Merger that it may have under applicable law.
Section 7.2 Publication. Each Shareholder hereby permits Parent to
publish and disclose in the Proxy Statement/Prospectus (including all
documents and schedules filed with the Securities and Exchange Commission)
its identity and ownership of shares of Common Stock and the nature of its
commitments, arrangements and understandings pursuant to this Agreement;
provided, however, that such publication and disclosure is subject in all
cases to the prior review and comment by AHP and its advisors.
Section 7.3 HSR Requirements. Each Shareholder agrees promptly to
make all necessary filings, if any, and thereafter make any other required
submissions, if any, with respect to the Merger Agreement, the AHP
Agreements (as that term is defined in the Merger Agreement), the Merger
and the transactions contemplated by the Merger Agreement required under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, any
antitrust and competition laws of any other applicable jurisdiction and any
other applicable law. Each Shareholder shall cooperate with Parent in
connection with the making of any such filings referenced in the preceding
sentence, including providing copies of all such documents to Parent and
its advisors prior to filing and, if requested, to accept all reasonable
additions, deletions or changes suggested in connection therewith.
Section 7.4 Affiliate Letters. Each Shareholder agrees to execute
an affiliate agreement, as soon as practicable after the date hereof, in
substantially the form attached hereto as Exhibit 7.4.
Section 7.5 Further Actions. Each of the parties hereto agrees
that it will use its reasonable best efforts to do all things necessary to
effectuate this Agreement.
Section 7.6 Fees and Expenses. Except as provided below, each of
the parties shall be responsible for its own fees and expenses (including,
without limitation, the fees and expenses of financial consultants,
investment bankers, accountants and counsel) (collectively, "Fees") in
connection with the entering into of this Agreement and the consummation of
the transactions contemplated hereby and by the Merger Agreement. In the
event that the Merger Agreement is terminated (i) pursuant to Section
8.1(a) or Section 8.1(h)(ii) of the Merger Agreement, or (ii) by the
Company pursuant to Section 8.1(e) or Section 8.1(g) of the Merger
Agreement, then Parent shall promptly reimburse AHP for all of the Fees of
the Shareholders incurred in connection with the transactions contemplated
hereby and by the Merger Agreement; provided, however, that Parent's
liability for Fees payable to AHP pursuant to this Section 7.6 shall in no
event exceed $3 million.
Section 7.7 Amendments, Waivers, etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified, except upon
the execution and delivery of a written agreement executed by each of the
parties hereto. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof shall not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
Section 7.8 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not to be performed in accordance with the terms hereof and
that the parties shall be entitled to specific performance of the terms
hereof in addition to any other remedies at law or in equity.
Section 7.9 Notices. Any notices or other communications required
or permitted under, or otherwise in connection with this Agreement shall be
in writing and shall be deemed to have been duly given when delivered in
person or upon confirmation of receipt when transmitted by facsimile
transmission (with confirmation) or on receipt after dispatch by registered
or certified mail, postage prepaid, addressed, or on the next Business Day
if transmitted by national overnight courier, in each case as follows:
If to Parent or Merger Sub, addressed to it at:
Amgen Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Attn: Chief Executive Officer
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxxx
and
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxx Xxxxx
Xxxx X. Xxxxxxx
Xxxxxxx Xxxx
If to any Shareholder, addressed to:
American Home Products Corporation
Five Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx
Section 7.10 Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
Section 7.11 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
Law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic
or legal substance of the transactions contemplated hereby is not affected
in any manner materially adverse to any party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the extent possible.
Section 7.12 Entire Agreement. This Agreement (together with the
Merger Agreement, to the extent referred to herein) constitutes the entire
agreement of the parties and supersedes all prior agreements and
undertakings, both written and oral, between the parties, or any of them,
with respect to the subject matter hereof.
Section 7.13 Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of each of
the parties, except that each of Parent and Merger Sub may assign and
transfer its rights and obligations hereunder to any direct or indirect
wholly subsidiary of Parent.
Section 7.14 Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and their
respective successors and assigns, and nothing in this Agreement, express
or implied, is intended to or shall confer upon any other Person any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
Section 7.15 Mutual Drafting. Each party hereto has participated
in the drafting of this Agreement, which each party acknowledges is the
result of extensive negotiations between the parties.
Section 7.16 Governing Law; Consent to Jurisdiction; Waiver of
Trial by Jury.
(a) This Agreement and the transactions contemplated hereby, and
all disputes between the parties under or related to the Agreement or the
facts and circumstances leading to its execution, whether in contract, tort
or otherwise, shall be governed by and construed in accordance with the
laws of the State of Delaware, without regard to the application of
Delaware principles of conflicts of laws.
(b) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any Delaware State court, or Federal court of the United
States of America, sitting in Delaware, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or the agreements delivered in connection herewith or the
transactions contemplated hereby or thereby or for recognition or
enforcement of any judgment relating thereto, and each of the parties
hereby irrevocably and unconditionally (i) agrees not to commence any such
action or proceeding except in such courts, (ii) agrees that any claim in
respect of any such action or proceeding may be heard and determined in
such Delaware State court or, to the extent permitted by law, in such
Federal court, (iii) waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in any such Delaware State
or Federal court, and (iv) waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such Delaware State or Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Each party to this
Agreement irrevocably consents to service of process in the manner provided
for notices in Section 7.9. Nothing in this Agreement shall affect the
right of any party to this Agreement to serve process in any other manner
permitted by law.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS,
(II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS,
(III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 7.16(c).
Section 7.17 Counterparts. This Agreement may be executed in
counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same
agreement.
Section 7.18 Acknowledgement. The parties hereto acknowledge and
agree that this Agreement is entered into pursuant to the provisions of
Section 23B.07.310 of the Business Corporation Act of the State of
Washington.
* * * * *
IN WITNESS WHEREOF, Parent and each Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
AMGEN INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board, CEO
and President
AMERICAN HOME PRODUCTS CORPORATION
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
MDP HOLDINGS, INC.
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Vice President
LEDERLE PARENTERALS, INC.
a New Jersey corporation
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Schedule I
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Ownership of Common Stock
-------------------------
Name and Address of Shareholder Number of Shares
------------------------------- ----------------
American Home Products Corporation(1) 0
Xxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
MDP Holdings, Inc. 180,153,032
Five Giralda Farms
Madison, NJ 07940
Lederle Parenterals, Inc. 43,225,056
Five Giralda Farms
Madison, NJ 07940
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(1) American Home Products Corporation beneficially owns the shares
held by MDP Holdings, Inc. and Lederle Parenterals, Inc.
Exhibit 7.4
Affiliate Letter
