EXHIBIT 2.1
LLC INTEREST ASSIGNMENT AND AMENDMENT AGREEMENT
LLC INTEREST ASSIGNMENT AND AMENDMENT AGREEMENT (the "Agreement"),
dated as of May 16, 2003, among FARALLON PHARMA INVESTORS, LLC ("Farallon"),
XXXXXXX SCIENCES COMPANY, LLC ("BSC") and ALLERGAN, INC. ("Allergan").
RECITALS
A. Farallon is a party to that certain Limited Liability Company
Agreement (as amended, the "LLC Agreement"), dated as of March 20, 2001,
pursuant to which Farallon formed BSC. Capitalized terms used but not otherwise
defined herein have the meanings given to them in the LLC Agreement.
B. Farallon is the sole Member of, and owns all of the outstanding
Membership Interests of BSC (the "BSC Interests").
C. Farallon and Allergan are parties to that certain Equity Purchase
Option Agreement, dated as of March 30, 2001, as amended by that certain
Amendment to Equity Purchase Option dated April 7, 2003 (as so amended, the
"Option Agreement"), pursuant to which Farallon granted to Allergan the option
to purchase all of the BSC Interests.
D. Allergan Sales, LLC, a Delaware limited liability company ("Allergan
Sales"), is a wholly-owned subsidiary of Allergan designated as Allergan's
nominee to receive the BSC Interests.
E. On April 25, 2003, Allergan delivered a notice of exercise under the
Option Agreement, pursuant to which Allergan notified Farallon of Allergan's
intention to purchase the BSC Interests pursuant to the Option Agreement.
F. Now, the parties hereto wish to (i) provide for the assignment of
the BSC Interests from Farallon to Allergan Sales, (ii) remove Farallon as a
Member of BSC, (iii) admit Allergan Sales as the sole Member of BSC, and (iv)
remove all of the officers and certain of the Directors of BSC.
AGREEMENT
In consideration of the premises and the mutual covenants and the
agreements herein set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Assignment of BSC Interests. Upon the terms and subject to
the conditions of this Agreement, effective as of the time of the receipt of the
Initial Purchase Price (as defined below) by Farallon (such time being the
"Effective Time"), Farallon hereby sells, assigns, transfers, conveys and
delivers to Allergan, and Allergan hereby purchases and accepts, all of the BSC
Interests, for the Purchase Price payable as set forth in Section 2 below.
Section 2. Purchase Price.
(a) Initial Purchase Price. Upon the terms and subject to the
conditions of this Agreement, on the date of and concurrently with the
execution and delivery of this Agreement, as payment in full of the
purchase price for the BSC Interests, Allergan shall pay to Farallon an
aggregate amount in cash equal to the sum of (i) $263,073,972.60, plus
(ii) an amount equal to the product of (A) $197,260.27, multiplied by
(B) the number of days, if any, after the date of this Agreement until
and including the date on which the Effective Time occurs (the sum of
(i) plus (ii) being the "Initial Purchase Price"), subject to
adjustment as provided in subparagraph (d) below, by wire transfer of
immediately available funds in accordance with the wire transfer
instructions attached hereto as Exhibit A.
(b) Expense Schedules. Concurrently with the execution and
delivery of this Agreement, Farallon shall deliver or cause to be
delivered to Allergan a schedule (the "Estimated Expense Schedule")
showing in reasonable detail the amount of each estimated Pre-Closing
G&A Expense (as defined herein). Within forty-five (45) days after the
Effective Time, Allergan shall prepare and deliver or cause to be
delivered to Farallon an updated schedule (the "Closing Expense
Schedule") showing (i) the actual Pre-Closing G&A Expenses incurred by
BSC and (ii) a reasonably detailed calculation of the Adjustment
Amount, if any, as defined in subparagraph (c) below. The Closing
Expense Schedule and the actual Pre-Closing G&A Expenses set forth on
the Closing Expense Schedule shall be prepared and calculated (x) in
accordance with generally accepted accounting principles consistently
applied and (y) in the same manner and using the same methodology as
the Estimated Expense Schedule and the estimated Pre-Closing G&A
Expenses set forth on the Estimated Expense Schedule.
For the purposes of this Agreement, "G&A Expenses" shall mean
any and all general and administrative expenses of BSC that, prior to
the Effective Time, would have been eligible to be paid out of the G&A
Account pursuant to Section 3.06(b) of the LLC Agreement; and
"Pre-Closing G&A Expenses" shall mean any and all G&A Expenses
attributable to the period prior to the Effective Time that have not
been paid on or prior to the Effective Time, whether or not such G&A
Expenses are billed to BSC prior to the Effective Time.
(c) Adjustment Amount. The "Adjustment Amount" (which may be a
positive or negative number) shall be an amount equal to the difference
between (i) the aggregate amount of cash remaining in the G&A Account
(as defined in Section 3.06(b) of the LLC Agreement) at the Effective
Time less (ii) the actual amount of Pre-Closing G&A Expenses (as
finally determined pursuant to the provisions of clauses (e) and (f)
below) set forth on the Closing Expense Schedule.
(d) Payment of Adjustment Amount. Farallon shall pay Allergan
the Adjustment Amount set forth in Section 2(c) if it is negative and
Allergan shall pay Farallon the Adjustment Amount set forth in Section
2(c) if it is positive. The resulting payment due by Farallon or
Allergan as part of the Adjustment Amount shall be made by wire
transfer of immediately available funds to an account designated in
writing by the payee. The
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Initial Purchase Price, as adjusted by the Adjustment Amount, shall be
the "Purchase Price".
(e) Disputed Adjustment Amount. If Farallon shall disagree
with the Adjustment Amount, it shall notify Allergan of such
disagreement in writing specifying in detail the particulars of such
disagreement within five (5) business days after Farallon's receipt of
the Closing Expense Schedule and calculation of Pre-Closing G&A
Expenses (a "Dispute Notice"). To the extent that any portion of the
Adjustment Amount is not in dispute, within fifteen (15) business days
after Farallon's receipt of the Closing Expense Schedule, Farallon
shall pay Allergan, or Allergan shall pay Farallon, as the case may be,
that portion of the Adjustment Amount which is not in dispute in the
manner set forth herein.
(f) Resolution of Disputed Adjustment Amount. Allergan and
Farallon shall use their respective commercially reasonable efforts for
a period of thirty (30) calendar days after Farallon's delivery of a
Dispute Notice (or such longer period as Allergan and Farallon shall
mutually agree upon) to resolve any disagreement raised by Farallon
with respect to the Closing Expense Schedule, or the calculation of the
Pre-Closing G&A Expenses or the Adjustment Amount. If, at the end of
such period, Allergan and Farallon are unable to resolve such
disagreement, Farallon and Allergan, respectively, shall jointly select
an independent auditor of recognized international standing to resolve
any remaining disagreement. The determination by such independent
auditor shall be final, binding and conclusive on the parties. Allergan
and Farallon shall use their respective commercially reasonable efforts
to cause such independent auditor to make its determination within
thirty (30) calendar days of accepting its selection. Within fifteen
(15) business days after the date of determination of such independent
auditor, Farallon shall pay Allergan, or Allergan shall pay Farallon,
as the case may be, any and all remaining unpaid portions of the
Adjustment Amount in the manner set forth herein. Allergan and Farallon
shall each pay one half of the fees and expenses of such independent
auditor.
(g) Allocation of Purchase Price. The Initial Purchase Price
(plus assumed liabilities to the extent properly taken into account
under the Code and the Treasury regulations promulgated thereunder)
shall be allocated among the assets of BSC in accordance with Exhibit
B, as attached hereto and as may be revised in accordance with the
following sentence (the "Allocation"). Allergan and Farallon agree to
revise the Allocation to reflect the payment of any Adjustment Amount
paid pursuant to Section 2(d). To the extent any Adjustment Amount is
paid and Allergan and Farallon cannot agree on how to revise the
Allocation to reflect such Adjustment Amount, then the parties shall
resolve such dispute in a manner consistent with the second and third
sentences of Section 2(f). Farallon, Allergan and BSC agree to (i) be
bound by the Allocation, (ii) act in accordance with the Allocation in
the preparation of all financial statements and the filing of all Tax
Returns (including, without limitation, filing Form 8594 with their
United States federal income Tax Return for the taxable year that
includes the Effective Time) and in the course of any Tax audit, Tax
review or Tax litigation relating thereto, and (iii) take no position
and cause their controlled affiliates to take no position inconsistent
with the Allocation for income Tax purposes, including United States
federal and state income Tax and foreign income Tax, unless otherwise
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required pursuant to a "determination" within the meaning of Section
1313(a) of the Code. Not later than thirty (30) days prior to the
filing of their respective Forms 8594 relating to this transaction,
each of Farallon and Allergan shall deliver to the others a copy of its
Form 8594.
Section 3. Consent of BSC and Directors; Amendment of LLC Agreement.
Subject to the terms and upon the satisfaction of the conditions set forth in
this Agreement:
(a) Consent of BSC and Directors. Effective as of the
Effective Time, in accordance with the provisions of the LLC Agreement,
BSC and each of the Directors hereby consents to the admission of
Allergan Sales as a Member of BSC.
(b) Removal of Farallon as a Member. Farallon, BSC, Allergan
and each of the Directors hereby agree that as of the Effective Time,
Farallon shall no longer be a Member of BSC and shall have no further
rights, liabilities or obligations as a Member under the LLC Agreement.
(c) Removal of Certain Directors. BSC, Allergan and each of
the Directors agree that effective as of immediately after the
Effective Time (i) each of the officers and Directors of BSC other than
Xxxxxx X. Xxxxxx is hereby removed without cause and (ii) in accordance
with the provisions of Section 4.04(a) of the LLC Agreement, the number
of Directors constituting the entire Board shall be one.
(d) Amendment and Restatement of LLC Agreement. Immediately
following the removal of the officers and Directors as provided in
subsection (c) above, in accordance with Section 10.07 of the LLC
Agreement, BSC, Allergan and Xxxxxx X. Xxxxxx, as the sole Director,
hereby agree to, concurrently with the execution and delivery of this
Agreement, execute and deliver an amendment and restatement of the LLC
Agreement in the form attached hereto as Exhibit C (the "New LLC
Agreement").
(e) Continuation of Exculpation and Indemnification.
Notwithstanding any provision of this Agreement or the New LLC
Agreement to the contrary, and notwithstanding the amendment and
restatement of the LLC Agreement, each of BSC, Farallon and Allergan
agree that BSC shall continue to provide to the Indemnified Persons (as
defined in the LLC Agreement) the (i) exculpation as provided in
Section 4.8 of the LLC Agreement, and (ii) indemnification as provided
in Section 4.9 of the LLC Agreement, in each case, with respect to
facts, matters, claims, circumstances and issues relating to or arising
during the period on or prior to the Effective Time.
Section 4. Agreement of Allergan to be Bound. Subject to the terms and
conditions of this Agreement, as of the Effective Time, Allergan agrees to cause
Allergan Sales to be bound by all of the terms and provisions of the New LLC
Agreement.
Section 5. Representations and Warranties of Farallon. Farallon hereby
represents and warrants to Allergan and BSC as follows:
(a) Power and Authority. Farallon is a limited liability
company duly organized and validly existing under the laws of the State
of Delaware and has the necessary limited
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liability company power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated by this Agreement. The execution and delivery
by Farallon of, and the performance by Farallon of its obligations
under, this Agreement have been duly authorized by all necessary
limited liability company action on the part of Farallon.
(b) Binding Effect. This Agreement is the legal, valid and
binding obligation of Farallon enforceable against Farallon in
accordance with its terms, except that such enforcement (i) may be
limited by bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally and (ii) is subject to the availability of
equitable remedies, as determined in the discretion of the court before
which such a proceeding may be brought.
(c) Contravention. Neither the execution, delivery and
performance of this Agreement by Farallon nor the consummation of the
transactions described herein by the Farallon will (with or without
notice or lapse of time or both) (i) conflict with, violate or breach
any statute, law, rule or regulation by which Farallon may be bound or
affected, (ii) conflict with, breach or result in a default under, any
material contract or material agreement to which Farallon is a party or
by which Farallon or any of its material properties may be bound or
affected, or (iii) conflict with the Certificate of Formation of
Farallon or the LLC Agreement.
(d) Approvals. No authorization, consent, order or approval
of, notice to or registration or filing with, or any other action by
any governmental authority or other person which has not been obtained
is required in connection with (i) the due execution and delivery by
Farallon of this Agreement, or (ii) the performance by Farallon of its
obligations under this Agreement.
(e) Ownership of BSC Interests. Farallon is the sole record
and beneficial owner of the BSC Interests. Farallon's right, title and
interest in the BSC Interests are free and clear of all liens, claims,
encumbrances, voting trusts, voting agreements and restrictions of any
nature whatsoever created by Farallon, except for those created by (i)
applicable securities laws, (ii) the LLC Agreement, and (iii) the
Option Agreement, and upon Farallon's receipt of the Purchase Price in
accordance with Section 2 of this Agreement, good and marketable title
to the BSC Interests will pass to Allergan Sales, free and clear of any
liens, claims, encumbrances, voting trusts, voting agreements and
restrictions of any nature whatsoever created by Farallon, except for
those created by (i) applicable securities laws, and (ii) the New LLC
Agreement.
(f) LLC Tax Treatment. At all times since its formation, BSC
has been an entity with a single owner that is disregarded as separate
from its owner for federal tax purposes, and Farallon has filed all Tax
Returns on a basis consistent with such treatment. As of the Effective
Time, no Form 8832 has ever been filed with respect to BSC as other
than a disregarded entity.
Section 6. Representations and Warranties of Allergan. Allergan hereby
represents and warrants to, and agrees with, Farallon and BSC as follows:
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(a) Power and Authority. Allergan is a corporation duly
organized and validly existing under the laws of the State of Delaware
and has the necessary corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated by this Agreement. The
execution and delivery by Allergan of, and the performance by Allergan
of its obligations under, this Agreement have been duly authorized by
all necessary corporate action on the part of Allergan.
(b) Binding Effect. This Agreement is the legal, valid and
binding obligation of Allergan enforceable against Allergan in
accordance with its terms, except that such enforcement (i) may be
limited by bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally and (ii) is subject to the availability of
equitable remedies, as determined in the discretion of the court before
which such a proceeding may be brought.
(c) Contravention. Neither the execution, delivery and
performance of this Agreement by Allergan nor the consummation of the
transactions described herein by Allergan will (with or without notice
or lapse of time or both) (i) conflict with, violate or breach any
statute, law, rule or regulation by which Allergan may be bound or
affected, (ii) conflict with, breach or result in a default under, any
material contract or material agreement to which Allergan is a party or
by which Allergan or any of its material properties may be bound or
affected, or (iii) conflict with the Certificate of Incorporation or
by-laws of Allergan.
(d) Approvals. No authorization, consent, order or approval
of, notice to or registration or filing with, or any other action by
any governmental authority or other person which has not been obtained
is required in connection with (i) the due execution and delivery by
Allergan of this Agreement, or (ii) the performance by Allergan of its
obligations under this Agreement.
(e) No Registration Under Securities Act; No Transfers.
Allergan understands and acknowledges that the BSC Interests have not
been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities laws. Allergan understands
that the BSC Interests cannot be sold unless they are subsequently
registered under the Securities Act and applicable state securities
laws or an exemption from such registration is available.
(f) Securities Act Representations. Allergan is an "accredited
investor" within the meaning of Rule 501 promulgated under the
Securities Act. Allergan is acquiring the BSC Interests hereunder for
investment, solely for Allergan's own account and not with a view to,
or for resale in connection with, the distribution or other disposition
thereof. The BSC Interests were not offered to Allergan by way of
general solicitation or general advertising. Allergan acknowledges that
Allergan's financial situation is such that it can afford to bear the
economic risk of holding the BSC Interests for an indefinite period of
time and suffer the complete loss of its investment in the BSC
Interests.
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(g) Sophisticated Purchaser; High Risk Investment. Allergan
has knowledge, sophistication and experience in financial and business
matters such that it is capable of evaluating the merits and risks of
purchasing the BSC Interests and of protecting its own interests in
connection with the purchase of the BSC Interests. The business of BSC
is speculative and involves a high degree of risk, including the risk
of loss of Allergan's entire investment.
(h) Access to Information. Allergan has received such
information concerning the business, assets and financial condition of
BSC as Allergan deems necessary in order to make a fully informed
decision to purchase the BSC Interests from Farallon. Allergan has had
a Director on the board of directors (the "Allergan Director") of BSC
at all times since BSC's formation and Allergan has had full access to
all information available to the Allergan Director. In addition,
Allergan has had full and complete access to representatives of BSC to
discuss any and all matters of concern or interest to Allergan relevant
to its determination whether to purchase the BSC Interests and has
received to its satisfaction such information as Allergan has requested
to enable it to determine to enter into this Agreement and consummate
the purchase of the BSC Interests. In making the decision to purchase
the BSC Interests, Allergan has relied solely on the information
obtained by Allergan directly from the Allergan Director and directly
from BSC as a result of any inquiries by Allergan and has
independently, without reliance upon Farallon and based on such
information as it deemed appropriate, made its own analysis and
decision to purchase the BSC Interests from Farallon. Allergan agrees
that Farallon has no responsibility for the accuracy or completeness of
any information delivered to Allergan by the Allergan Director or by
BSC.
(i) No Reliance. Allergan has made its own independent
evaluation of its investment in BSC and has not relied on Farallon,
BSC, any Director (other than the Allergan Director) or any of their
affiliates, accountants, counsel or other representatives in connection
with Allergan's purchase of the BSC Interests. Allergan understands
that none of Farallon, BSC nor any of their affiliates, accountants,
counsel or other representatives is acting as Allergan's broker or
advisor in connection with Allergan's purchase of the BSC Interests.
Allergan is relying solely upon its own advisers and not upon Farallon,
BSC or any of their affiliates, accountants, counsel or other
representatives to evaluate an investment in the BSC Interests and/or
with respect to tax or other economic considerations of Allergan
relating to such purchase. Neither Farallon nor BSC has made any
guarantee whatsoever and make no guarantee whatsoever as to the success
or profitability of BSC or its business. Allergan has not entered into
this Agreement in consideration of or in reliance upon any such
guarantee or similar representation.
(j) No Information from Farallon. Allergan expressly
acknowledges and agrees that (i) Farallon has had several Directors and
is an affiliate (as such term is defined in Rule 144(a)(1) promulgated
under the Securities Act) of BSC, and (ii) Allergan has not requested
Farallon to disclose any information about BSC or its properties,
assets, business or operations to Allergan and has not and will not
rely on Farallon to disclose any such information to Allergan since
Allergan has had full access to all such information.
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(k) No Other Representations or Warranties. Allergan
acknowledges that except as specifically set forth in this Agreement
and in the Option Agreement, Farallon makes no representations or
warranties (whether express or implied) of any kind whatsoever.
Allergan acknowledges that (i) Farallon is selling the BSC Interests to
Allergan and Allergan is purchasing the BSC Interests from Farallon
based solely on the representations and warranties of Farallon
contained in this Agreement and in the Option Agreement, and (ii)
Allergan is knowledgeable and experienced in the industry in which BSC
operates.
Section 7. Books and Records/Post-Closing Cooperation. From and after
the Effective Time, Farallon, BSC and Allergan each agree to furnish or cause to
be furnished to each other, upon request, as promptly as practicable and within
normal business hours, such information and assistance relating to BSC, its
assets and properties and its books and records as is reasonably necessary for
the filing of all Tax Returns, and making of any election related to Taxes, the
preparation for any audit by any Taxing authority, and the prosecution or
defense of any action, lawsuit or proceeding related to the operation of BSC's
business prior to the Effective Time or related to Taxes. From and after the
Effective Time, Farallon, Allergan and BSC will reasonably cooperate with each
other in the conduct of any audit or other action, lawsuit or proceeding related
to the operation of BSC's business prior to the Effective Time or related to
Taxes and each shall execute and deliver such other documents as are reasonably
necessary to carry out the intent of this Section. Allergan shall retain all
books and records with respect to Taxes pertaining to the BSC Interests and the
assets of BSC, for a period of at least six (6) years following the Effective
Time. At the end of such period, Allergan shall provide Farallon with at least
ten (10) days prior written notice before transferring, destroying or discarding
any such books and records, during which period Farallon can elect to take
possession, at its own expense, of such books and records. Farallon and Allergan
further agree, upon request, to use their respective commercially reasonable
efforts to obtain any certificate or other document from any governmental
authority or any other Person as may be necessary to mitigate, reduce or
eliminate any Tax that could be imposed (i) with respect to the transactions
contemplated hereby or (ii) with respect to the BSC Interests and the assets of
BSC, attributable to the Pre-Effective Tax Period.
Section 8. Tax Matters.
(a) Allocation of Taxes. Except as provided in Section 8(b)
with respect to Transfer Taxes, Farallon shall be responsible for and
shall promptly pay when due all Taxes levied with respect to the BSC
Interests and the assets of BSC attributable to the Pre-Effective Tax
Period. Allergan shall be responsible for and shall promptly pay when
due all Taxes levied with respect to the BSC Interests and the assets
of BSC attributable to the Post-Effective Tax Period. Allergan shall be
responsible for and shall prepare and file in a timely manner all
Straddle Period Tax Returns for BSC that BSC is required to file from
and after the Effective Time. All Taxes levied with respect to the BSC
Interests and the assets of BSC for the Straddle Period shall be
apportioned between the Pre-Effective Tax Period and the Post-Effective
Tax Period, as follows:
(i) in the case of any Taxes other than Taxes based
upon or related to
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income or receipts, the portion allocable to the Pre-Effective
Tax Period shall be deemed to be the amount of such Tax for
the entire Straddle Period multiplied by a fraction the
numerator of which is the number of days in the Tax period
ending on the date of the Effective Time and the denominator
of which is the number of days in the entire Straddle Period,
and
(ii) in the case of any Tax based upon or related to
income or receipts, the portion allocable to the Pre-Effective
Tax Period shall be deemed equal to the amount which would be
payable if the relevant Straddle Period ended at the close of
business on the date of the Effective Time.
Upon receipt of any xxxx for such Taxes relating to the BSC Interests
or the assets of BSC, Farallon and Allergan shall present a statement to the
other setting forth the amount of reimbursement to which each is entitled under
this Section 8(a) together with such supporting evidence as is reasonably
necessary to calculate the proration amount. The proration amount shall be paid
by the party owing it to the other within fifteen (15) business days after
delivery of such statement. In the event that Farallon or Allergan shall make
any payment for which it is entitled to reimbursement under this Section 8(a),
the applicable party shall make such reimbursement promptly but in no event
later than fifteen (15) business days after the presentation of a statement
setting forth the amount of reimbursement to which the presenting party is
entitled along with such supporting evidence as is reasonably necessary to
calculate the amount of reimbursement. Notwithstanding the foregoing, (x) none
of Allergan and its affiliates and their respective officers, directors,
managers, members and agents shall be liable for (i) any Taxes of Farallon or
BSC levied with respect to the BSC Interests or the assets of BSC attributable
to Pre-Effective Tax Periods, or (ii) any other Taxes of Farallon for any
periods, and (y) none of Farallon and its affiliates and their respective
officers, directors, managers, members and agents shall be liable for (i) any
Taxes of Allergan or BSC levied with respect to the BSC Interests or the assets
of BSC attributable to Post-Effective Tax Periods, or (ii) any other Taxes of
Allergan for any periods.
(b) Transfer Taxes. All transfer, documentary, sales, use, stamp,
registration, value added, and other such similar Taxes (including all
applicable real estate transfer Taxes) and related fees (including any penalties
and interest) incurred in connection with this Agreement and the transactions
contemplated hereby (collectively, "Transfer Taxes") shall be paid by Allergan
when due, and Allergan will, at its own expense, file all necessary Tax Returns
and other documentation with respect to all such Transfer Taxes and, if required
by applicable law, Farallon will, and will cause its controlled affiliates to,
join in the execution of any such Tax Returns and other documentation. Allergan
shall provide Farallon with evidence satisfactory to Farallon that all such
Transfer Taxes have been paid.
(c) Notices. Farallon shall promptly notify Allergan in writing upon
receipt by Farallon of notice of any pending or threatened federal, state, local
or foreign Tax audits or assessments relating to the income, properties or
operations of Farallon that reasonably may be expected to relate to the BSC
Interests or the assets of BSC.
(d) Certification of Non-Foreign Status. Section 1445 of the Code
provides that a transferee of United States real property interest must withhold
tax if the transferor is a foreign
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person. To inform the transferee that withholding of tax is not required upon
Farallon's assignment to Allergan Sales of the BSC Interests pursuant to this
Agreement, the party signing this Agreement on behalf of Farallon hereby
certifies the following: (1) Farallon is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations thereunder); (2) Farallon's U.S. employer
identification number is 00-0000000; and (3) Farallon's office address is c/o
Farallon Capital Management, LLC, Xxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000. Farallon understands that this certification may be disclosed
to the Internal Revenue Service by the transferee and that any false statement
contained in this certification could be punished by fine, imprisonment or both.
Under penalties of perjury, the party signing this Agreement on behalf of
Farallon declares that it has examined this certification and, to the best of
its knowledge and belief, it is true, correct and complete, and such party
further declares that it has authority to sign this Agreement containing this
certification on behalf of Farallon.
(e) Definitions. For purposes of this Agreement:
(i) "Code" means the Internal Revenue Code of 1986,
as amended.
(ii) "Post-Effective Tax Period" means any Tax period
beginning after the date of the Effective Time and that
portion of any Straddle Period beginning after the date of the
Effective Time.
(iii) "Pre-Effective Tax Period" means any Tax period
ending on or before the Effective Time and the portion of any
Straddle Period ending at the close of business on the date of
the Effective Time.
(iv) "Straddle Period" means any Tax period beginning
on or before and ending after the date of the Effective Time.
(v) "Tax" or "Taxes" means any federal, state, local
or foreign income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental, customs duties, capital
stock, franchise, profits, withholding, social security,
unemployment, disability, real property, personal property,
sales, use, transfer, registration, value added, alternative
or add-on minimum, estimated, or other tax of any kind
whatsoever, including any interest, penalty, or addition
thereto, whether disputed or not.
(vi) "Tax Return" means any return, declaration,
report, claim for refund, or information return or statement
relating to Taxes, including any schedule or attachment
thereto, and including any amendment thereof.
Section 9. Miscellaneous.
(a) Notices. All notices, requests, demands and other
communications to any party or given under this Agreement will be in
writing and delivered personally, by overnight delivery or courier, by
registered mail or by telecopier (with confirmation received) to the
parties at the address or telecopy number specified for such parties on
the
10
signature pages hereto (or at such other address or telecopy number as
may be specified by a party in writing given at least five business
days prior thereto). All notices, requests, demands and other
communications will be deemed delivered when actually received.
(b) Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, and by different parties
hereto in separate counterparts, each of which when executed will be
deemed an original, but all of which taken together will constitute one
and the same instrument.
(c) Amendment of Agreement. This Agreement may not be amended,
modified or waived except by an instrument in writing signed on behalf
of each of the parties hereto.
(d) Governing Law. This Agreement will be governed by, and
construed in accordance with, the laws of the state of California
applicable to contracts executed in and to be performed entirely within
such jurisdiction, without reference to conflicts of laws provisions.
(e) Entire Agreement. This Agreement and the Option Agreement
contain and constitute the entire agreement of the parties with respect
to the subject matter hereof and supersede all prior negotiations,
agreements and understandings, whether written or oral, of the parties
hereto.
(f) 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 will nevertheless remain in full force and effect.
(g) No Third-Party Rights. This Agreement is not intended, and
will not be construed, to create any rights in any parties other than
Allergan, Farallon and BSC, and no person or entity may assert any
rights as third-party beneficiary hereunder.
(h) Waiver of Jury Trial. EACH OF ALLERGAN, FARALLON AND BSC
HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS AGREEMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR TO BE
DELIVERED IN CONNECTION WITH THIS AGREEMENT AND AGREES THAT ANY ACTION,
SUIT OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
(i) Ambiguities. This Agreement was negotiated between legal
counsel for the parties and any ambiguity in this Agreement will not be
construed against the party who drafted this Agreement.
(j) No Waiver; Remedies. No failure or delay by any party in
exercising any right, power or privilege under this Agreement will
operate as a waiver of the right, power or privilege. A single or
partial exercise of any right, power or privilege will not
11
preclude any other or further exercise of the right, power or privilege
or the exercise of any other right, power or privilege.
(k) Survival. All representations, warranties, covenants and
obligations in this Agreement shall survive the Effective Time and the
consummation of the transactions contemplated herein.
(l) Attorneys' Fees. In the event an action or suit is brought
by any party hereto to enforce the terms of this Agreement, the losing
party shall pay the prevailing party's reasonable attorneys' fees and
costs incurred in connection with such action or suit.
[signature pages follow]
12
In witness whereof, the parties have executed and delivered this
Agreement as of the date above first written above.
FARALLON:
Address for Notices: FARALLON PHARMA INVESTORS, LLC
c/o Farallon Capital By: Farallon Capital Management, L.L.C.,
Management, L.L.C. its Manager
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone No.: 000-000-0000 By: /s/ Xxxxx Xxxxx
Facsimile No.: 000-000-0000 ----------------------------------
Xxxxx Xxxxx
Managing Member
With a copy to:
Xxxxxxxx Xxxxxx Xxxxx & Xxxx LLP
One World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
S-1
XXXXXXX:
Address for Notices: XXXXXXX SCIENCES COMPANY, LLC
Prior to the Effective Time:
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.X. By: /s/ Xxxxxx X. Xxxxxx
One Maritime Plaza, Suite 1325 --------------------------------
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Xxxxxx X. Xxxxxx
Attention: Xxxxx Xxxxx Chief Executive Officer
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
With a copy to:
Xxxxxxxx Xxxxxx Xxxxx & Xxxx LLP
One World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
From and After the Effective Time:
Allergan, Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Vice President,
Research and Development
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
With a copy to:
Allergan, Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
S-2
ALLERGAN:
Address for Notices: ALLERGAN, INC.
Allergan, Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000 By: /s/ Xxxx X. Xxxxxx
Attention: Corporate Vice President, -----------------------------------
Research and Development Xxxx X. Xxxxxx
Telephone No.: 000-000-0000 Corporate Vice President and Chief
Facsimile No.: 000-000-0000 Financial Officer
With a copy to:
Allergan, Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
S-3
DIRECTORS:
Address for Notices:
00000 X. Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000 /s/ Xxxxxx Xxxxxx
--------------------------------------------
XXXXXX XXXXXX, solely for the purpose of the
provisions of Section 3 hereof.
Address for Notices:
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.X.
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone No.: 000-000-0000 /s/ Xxxxx Xxxxx
Facsimile No.: 000-000-0000 --------------------------------------------
XXXXX XXXXX, solely for the purpose of the
provisions of Section 3 hereof.
Address for Notices:
c/o Allergan, Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone No.: 000-000-0000 /s/ Xxxxxx X. Xxxxxx
Facsimile No.: 000-000-0000 --------------------------------------------
XXXXXX X. XXXXXX, PH.D., solely for the
purpose of the provisions of Section 3
hereof.
Address for Notices:
0000 Xxxxxx, Xxxx Xxxxxxx X-000
Xxxxxxx, Xxxxx 00000
Telephone No.: 000-000-0000 /s/ Xxxxx Xxxxxxxx
Facsimile No.: 000-000-0000 --------------------------------------------
XXXXX XXXXXXXX, solely for the purpose of
the provisions of Section 3 hereof.
S-4
Address for Notices:
00 Xxxx Xxxxx
Xxxxxx, XX 00000-0000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000 /s/ Xxxxxxx Xxxx
--------------------------------------------
XXXXXXX XXXX, solely for the purpose of the
provisions of Section 3 hereof.
S-5
