Exhibit 3
PRIVILEGED AND CONFIDENTIAL
EXECUTION COPY
CORPORATE GOVERNANCE
AND
VOTING AGREEMENT
THIS CORPORATE GOVERNANCE AND VOTING AGREEMENT (this "AGREEMENT") is
entered as of April 18, 2006 by and among Xx. Xxxxxxx Soon-Shiong ("PSS"),
and the other persons executing signature pages hereto (PSS and such other
persons, together with any third party related to any PSS Party who
hereafter becomes a signatory hereto as contemplated by Section 2.05, the
"PSS PARTIES"), and American Pharmaceutical Partners, Inc., a Delaware
corporation (the "COMPANY").
WHEREAS, the Company, American BioScience, Inc., a California
Corporation ("ABI"), PSS, and certain other ABI shareholders have entered
into an Agreement and Plan of Merger, dated as of November 27, 2005 (the
"MERGER AGREEMENT") pursuant to which, among other things, ABI shall be
merged with and into the Company (the "MERGER"), and all outstanding shares
of capital stock of ABI shall be converted into the right to receive shares
of Company Common Stock, all upon the terms and subject to the conditions
set forth in the Merger Agreement;
WHEREAS, concurrently with the execution of this Agreement, the PSS
Parties are entering into a Registration Rights Agreement dated as of the
date hereof (the "RRA") which, among other things, sets forth certain
registration rights granted by the Company to the PSS Parties and certain
other recipients of Company Common Stock pursuant to the Merger;
WHEREAS, immediately prior to the Merger, the PSS Parties own
approximately 99% of the outstanding shares of ABI capital stock and desire
that the Merger be completed pursuant to the Merger Agreement;
WHEREAS, as an inducement for the Company to enter into the Merger
Agreement, ABI has agreed that it is a condition to the Company's
obligation to consummate the Merger that the PSS Parties execute and
deliver this Agreement and thereby establish (a) certain terms and
conditions concerning the voting of and future acquisitions of Company
Common Stock by the PSS Parties and their respective Affiliates, and (b)
certain other matters concerning the corporate governance of the Company;
and
WHEREAS, certain terms used herein are defined in ARTICLE IV hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and agreements contained herein, the parties hereto hereby agree
as follows:
ARTICLE I
STOCK OWNERSHIP
SECTION 1.01. Acquisitions of Company Common Stock. Each PSS Party
shall not, and shall not permit any of his or its Affiliates to, acquire
Beneficial Ownership of any shares of Company Common Stock, in each case
whether by tender offer, market purchase, privately-negotiated purchase,
merger or other transaction, through the use of a derivative instrument or
voting agreement, by joining a Group, or otherwise, except for:
(a) acquisitions of Beneficial Ownership of Company Common Stock
pursuant to the Merger;
(b) acquisitions of Beneficial Ownership of Company Common Stock
approved in advance by a majority of the Outside Independent Directors then
in office;
(c) acquisitions of Beneficial Ownership of Company Common Stock
(i) upon the exercise of options to acquire Company Common Stock held by
PSS or any of his Affiliates as of the date hereof or (ii) as a result of
the grant of options to acquire Company Common Stock hereafter approved by
the Company Board and the Outside Independent Directors or the exercise of
any such options;
(d) acquisitions of Company Common Stock that would not cause the
PSS Parties and their respective Affiliates collectively to Beneficially
Own more than 83.5% of the then-outstanding shares of Company Common Stock;
and
(e) acquisitions of Company Common Stock pursuant to, or after
the consummation of, a Qualifying Tender Offer.
ARTICLE II
CORPORATE GOVERNANCE
SECTION 2.01. Outside Independent Directors.
(a) At each meeting of the stockholders of the Company, or in
connection with any action by written consent, occurring prior to (but not
including) the 2007 Annual Meeting at which at least three Outside
Independent Director candidates have been nominated for election by the
Company, each PSS Party shall vote or cause to be voted all of such PSS
Party's Voting Control Shares in favor of the election of three Outside
Independent Director candidates.
(b) Prior to (but not including) the 2007 Annual Meeting, no PSS
Party shall permit any of such PSS Party's Voting Control Shares to be
voted (or permit any written consent to be executed in respect of any of
such PSS Party's Voting Control Shares) in favor of the removal of any
Outside Independent Directors, unless after giving effect to the removal of
such Outside Independent Directors and any simultaneous or nearly
simultaneous election or appointment of any directors, the Board will
include at least three Outside Independent Directors.
SECTION 2.02. Proxy Solicitation. No PSS Party shall, and each shall
not permit its Affiliates to, directly or indirectly solicit, or be a
participant in the solicitation of, proxies from stockholders of the
Company for the purpose of opposing a solicitation conducted by or on
behalf of the Company or the Company Board; provided, that the foregoing
shall not (a) prevent any PSS Party or any of its Affiliates, in his, her
or its capacity as a stockholder of the Company, from nominating candidates
for election as directors of the Company or presenting proposals for a vote
or consent of the stockholders of the Company or (b) restrict the ability
of any PSS Party or any of its Affiliates from voting or executing consents
in respect of shares of Company Common Stock Beneficially Owned by a PSS
Party or any of its Affiliates (or causing such shares to be voted or
consents executed in respect thereof) in their discretion on all matters
submitted for a vote or consent of the stockholders of the Company.
SECTION 2.03 Board Action. The Company, subject to the Company Board's
fiduciary duties, shall take all necessary and desirable actions within its
control (including calling special meetings of the Company Board and the
stockholders of the Company) to effectuate the provisions and intent of
this Agreement.
SECTION 2.04. Restrictions on Business Combinations. No PSS Party
shall, or permit any of its Affiliates to, (a) merge or consolidate with or
into the Company or any of its majority-owned subsidiaries, or (b) acquire
from the Company and/or any of its majority owned subsidiaries, by
purchase, lease, exchange, mortgage, pledge, transfer or other disposition
(in one transaction or in a series of related transactions), except
proportionately as a stockholder of the Company, assets of the Company or
any of its majority-owned subsidiaries having an aggregate market value
equal to 10% or more of either the aggregate market value of all of the
assets of the Company determined on a consolidated basis or the aggregate
market value of all of the outstanding shares of Company Common Stock,
unless such transaction is approved in advance by a majority of the Outside
Independent Directors (and the other directors of the Company Board, to the
extent required by applicable law); provided, that the foregoing shall not
apply to prevent any PSS Party or any of its Affiliates from merging (or
require the approval of a majority of the Outside Independent Directors in
order for any PSS Party or any of its Affiliates to merge) with the Company
after the consummation of a Qualifying Tender Offer.
SECTION 2.05 No Circumvention. No PSS Party shall, or permit its
Affiliates to, take any action, or refrain from taking any action, that
would cause any Voting Control Shares to cease to constitute Voting Control
Shares prior to the termination of this Agreement; provided, however, that
sales or transfers of Voting Control Shares to unrelated third parties on
arm's-length terms, or transfers to related third parties who as a
condition to such transfer execute and deliver a counterpart signature page
hereto and thereby become a PSS Party, shall not be deemed to be a
violation of this Section 2.05.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties of PSS and the PSS
Parties. PSS and each other PSS Party hereby jointly and severally
represents and warrants to the Company, as follows:
(a) Each PSS Party (if it is an entity) is duly incorporated or
otherwise organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization is duly qualified or
licensed to do business, and is in good standing, in each jurisdiction
where the character of the properties owned, leased or operated by it or
the nature of its business makes such qualification, licensing or good
standing necessary, except for such failures to be so duly incorporated or
organized, validly existing or in good standing, qualified or licensed
that, individually or in the aggregate, would not reasonably be expected to
have a material adverse effect on such PSS Party's ability to perform its
obligations hereunder.
(b) Each PSS Party (if it is an entity) has all necessary
corporate or other power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by each PSS Party (if it is an entity), the performance by such
PSS Party (if it is an entity) of its obligations hereunder and the
consummation by such PSS Party (if it is an entity) of the transactions
contemplated hereby (i) have been duly and validly authorized by all
necessary corporate or other organizational action required on the part of
such PSS Party (if it is an entity) under applicable law or the
organizational, constituent or governing documents of such PSS Party (if it
is an entity), and (ii) (assuming compliance with all requirements of
applicable securities laws and the rules and regulations of the NASDAQ
National Market or any exchange upon which the Company' securities are
listed or traded and that the consents, approvals, authorizations and
permits described in Section 4.5(b) of the Company's disclosure schedule to
the Merger Agreement have been obtained and all filings and notifications
described in such section of the Company's disclosure schedule have been
made and any waiting periods thereunder have terminated or expired) no
other consents, approvals, actions, proceedings or authorizations are
necessary to authorize the execution and delivery of this Agreement by the
PSS Parties or the performance of their respective obligations hereunder,
except as would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on such PSS Party's ability to
perform its obligations hereunder. This Agreement has been duly and validly
executed and delivered by each PSS Party and constitutes a legal, valid and
binding obligation of each PSS Party, enforceable against such PSS Party in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity. The trustee(s) listed on the signature page hereof
with respect to the respective PSS Parties who are trusts have the full
right, power and authority to cause such trusts to comply with the terms
hereof without any instructions, directions, authorizations, or approvals
of any beneficiary thereof or any other person, or have obtained all
necessary instructions, directions, authorizations, or approvals.
(c) The execution and delivery of this Agreement by each PSS
Party does not, and the performance of this Agreement by the PSS Parties
will not, (i) conflict with or violate any provision of the organizational,
constituent or governing documents of such PSS Party (if that PSS Party is
an entity), (ii) conflict with or violate any organizational documents of
any Affiliate of such PSS Party, or (iii) (assuming compliance with all
requirements of applicable securities laws and the rules and regulations of
the NASDAQ National Market or any exchange upon which the Company'
securities are listed or traded and that the consents, approvals,
authorizations and permits described in Section 4.5(b) of the Company's
disclosure schedule to the Merger Agreement have been obtained and all
filings and notifications described in such section of the Company's
disclosure schedule have been made and any waiting periods thereunder have
terminated or expired) conflict with or violate any contract binding on or
any statute, law or order applicable to such PSS Party or by which any
property or asset of such PSS Party is bound, except as would not,
individually or in the aggregate, reasonably be expected to materially
limit or delay such PSS Party's ability to perform its obligations
hereunder. There are no contractual, legal or other restrictions or
impediments to the right, authority and ability of the PSS Parties to agree
to and perform, and to cause such respective PSS Parties' Affiliates to
perform, the obligations contemplated hereby, except as would not,
individually or in the aggregate, reasonably be expected to materially
limit or delay such PSS Party's ability to perform its obligations
hereunder.
(d) All shares of Company Common Stock issued to the PSS Parties
pursuant to the Merger are Voting Control Shares for purposes of this
Agreement.
SECTION 3.02 Representations and Warranties of the Company. The
Company hereby represents and warrants to the PSS Parties, as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Company
is duly qualified or licensed to do business, and is in good standing, in
each jurisdiction where the character of the properties owned, leased or
operated by it or the nature of its business makes such qualification,
licensing or good standing necessary, except for such failures to be so
qualified, licensed or in good standing that individually or in the
aggregate, would not reasonably be expected to have a Company Material
Adverse Effect (as defined in the Merger Agreement).
(b) The Company has all necessary corporate power and authority
to execute and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement, the performance by the Company of its
obligations hereunder and the consummation by the Company of the
transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action on the part of the Company, and no other
corporate proceedings on the part of the Company are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly authorized and validly executed and delivered by
the Company and constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general principles of equity.
(c) The execution and delivery of this Agreement by the Company
does not, and the performance of this Agreement by the Company will not,
(i) conflict with or violate any provision of the organizational or
governing documents of the Company, (ii) conflict with or violate any
organizational documents of any of the subsidiaries of the Company, or
(iii) (assuming that all consents, approvals, authorizations and permits
described in Section 4.5(b) of the Company's disclosure schedule to the
Merger Agreement have been obtained and all filings and notifications
described in such section of the Company's disclosure schedule have been
made and any waiting periods thereunder have terminated or expired)
conflict with or violate any statute, law or order applicable to the
Company or any of its subsidiaries or by which any property or asset of the
Company or any of its subsidiaries is bound or affected.
ARTICLE IV
DEFINITIONS
SECTION 4.01 Definitions. The following terms as used herein have the
following respective meanings:
"2007 ANNUAL MEETING" means the annual meeting of the stockholders of
the Company held in calendar year 2007.
"AFFILIATE" with respect to any person means (i) if such person is an
individual, any spouse or minor child (natural or by adoption) of such
person; (ii) any trust or family partnership established by such person (if
such person is an individual) and/or his or her spouse for the benefit of
such person and/or members of his or her immediate family; (iii) the estate
of such person (if such person is an individual); or (iv) any entity that,
directly, or indirectly through one or more intermediaries controls, is
controlled by or is under common control with, such person. For purposes of
this definition, "control" means the possession, directly or indirectly, of
the power to direct the management and policies of the applicable entity,
whether through the ownership of voting securities, by contract or
otherwise. For purposes of Section 1.01 of this Agreement and subject to
the next sentence, a person shall not be considered an "Affiliate" of a PSS
Party for purposes of the provisions of this Agreement obligating a PSS
Party to cause its "Affiliates" to take or refrain certain actions if that
PSS Party does not possess, directly or indirectly, the power to cause such
person to comply with the requirements of such provision, whether through
the ownership of voting securities, by contract or otherwise. For purposes
of this Agreement, neither the Company nor any person controlled by the
Company or their respective officers and directors (other than PSS) shall
be deemed to be Affiliates of any PSS Party.
"BENEFICIAL OWNERSHIP" (and related terms such as "Beneficially Owns"
or "Beneficial Owner") has the meaning set forth in Rule 13d-3 promulgated
under the Exchange Act; provided, however; that for purposes of determining
Beneficial Ownership, a person or entity shall be deemed to Beneficially
Own any securities which such person has the right to acquire (irrespective
of whether such right to acquire such securities is exercisable immediately
or only after the passage of time, the satisfaction of any conditions, the
occurrence of any event or any combination of the foregoing) pursuant to
any agreement or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise; provided, however, that a person shall
not be deemed to Beneficially Own any securities tendered pursuant to a
tender or exchange offer made by such person until such tendered securities
are accepted for purchase or exchange by such person. For purposes of this
Agreement, no PSS Party or any of their respective Affiliates shall be
deemed to Beneficially Own any securities Beneficially Owned by the Company
or any person controlled by the Company or any of their respective officers
and directors (other than PSS). Under this Agreement, for purposes of
calculating the percentage of the outstanding shares of Company Common
Stock Beneficially Owned by any person or persons, the number of
outstanding shares of Company Common Stock shall be deemed to include the
total number of basic shares of Company Common Stock then outstanding plus
the number of shares of Company Common Stock issuable upon exercise of
stock options which are then "in the money," calculated as follows: the
number of option shares to be counted in shares outstanding is calculated
individually for each tranche of options (e.g. if the company has 100
tranches, a number of shares potentially issued is calculated for each), in
each case by multiplying the number of shares subject to options
outstanding per tranche by the difference between the current stock price
and the strike price of the applicable tranche of option, and then dividing
such number by the then current stock price. For all those tranches for
which the strike price is higher than the current stock price, the shares
subject to the options are not considered to be outstanding.
"COMPANY BOARD" means the board of directors of the Company and, from
and after the effective time of the Merger, the board of directors of the
corporation surviving the Merger.
"COMPANY COMMON STOCK" means shares of common stock, par value $0.001
per share, of the Company, and any capital stock into or for which such
common stock hereafter may be converted or exchanged pursuant to a
recapitalization, reclassification, merger or other similar event.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and any Rules promulgated thereunder.
"GROUP" has the same meaning as described in Section 13(d)(3) of the
Exchange Act.
"OUTSIDE INDEPENDENT DIRECTORS" means any director of the Company (a)
who either (i) qualifies as an "independent director" with respect to the
Company pursuant to Section 4200(a)(15) of the Nasdaq National Market
Marketplace Rules (as in effect as of the date of the Merger Agreement), or
(ii) qualifies as "independent" with respect to the Company under Rule
10A-3 under the Exchange Act (as in effect as of the date of the Merger
Agreement), and (b) whose nomination or appointment was approved by PSS and
a majority of the Outside Independent Directors then in office (in each
case such approval not to be unreasonably withheld), it being understood
that, for purposes of this clause (b), each of the individuals who is a
director of the Company as of the date of the Merger Agreement and who
satisfies the requirements of clause (a) shall be deemed to have been
approved by PSS and a majority of the Outside Independent Directors.
"PERSON" means any individual, corporation, limited liability company,
partnership, association, trust, unincorporated organization or other
entity.
"QUALIFYING TENDER OFFER" means a tender or exchange offer by PSS, one
or more Affiliates of PSS and/or one or more other PSS Parties that (i) is
for all of the outstanding shares of Company Common Stock (provided, that
such tender or exchange offer need not seek to acquire shares of Company
Common Stock Beneficially Owned by PSS, any of his Affiliates or any of the
other PSS Parties); (ii) is subject to a non-waiveable condition that a
majority of the then-outstanding shares of Company Common Stock (other than
any shares of Company Common Stock Beneficially Owned by PSS or any of his
Affiliates) be validly tendered and accepted for purchase by the offeror;
and (iii) includes a commitment by the offeror (to be contained in the
offer to purchase pursuant to which the tender or exchange offer is made)
to promptly consummate a merger following the completion of the tender or
exchange offer, in which all remaining shares of Company Common Stock not
Beneficially Owned by PSS, any of his Affiliates or the PSS Parties shall
be acquired for the same amount and type of consideration as was paid per
share of Company Common Stock pursuant to the tender or exchange offer.
"VOTING CONTROL SHARES" shall mean, with respect to any PSS Party, any
shares of Company Common Stock Beneficially Owned by such PSS Party or any
of its Affiliates over which such PSS Party has the power to vote or
control or direct the voting thereof.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including faxes or similar
writing) and shall be given,
If to the Company, to:
American Pharmaceutical Partners, Inc.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: General Counsel
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
and further copies (which shall not constitute notice) to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
and:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. X'Xxxxx, Esq.
Fax: (000) 000-0000
If to any PSS Party to the address of such party set forth beneath
such party's signature hereto,
or such other address or fax number as such party may hereafter specify for
such purpose by notice to the other parties hereto. Each such notice,
request or other communication shall be effective (i) if given by fax, when
such fax is transmitted to the fax number specified in this Section and
electronic confirmation of transmission is received or (ii) if given by any
other means, when delivered at the address specified in this Section.
SECTION 5.02. Amendments; No Waivers; Enforcement.
(a) Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and signed, in the case of
an amendment, by PSS and the Company, or in the case of a waiver, by the
party against whom the waiver is to be effective; provided, that no such
amendment or waiver on behalf of the Company shall be effective without the
approval of (i) a majority of the Outside Independent Directors, or (ii) if
no member of the Company Board meets the definition of an Outside
Independent Director, a majority of the members of the audit committee of
the Company.
(b) Any action to be taken by the Company to amend, modify, waive,
suspend or enforce its rights under this Agreement shall be taken at the
direction of a majority of the Outside Independent Directors or, if no
member of the Company Board meets the definition of an Outside Independent
Director, a majority of the members of the audit committee of the Company.
(c) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 5.03. 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 5.04. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced under
applicable law or for reasons of 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 5.05. Entire Agreement. This Agreement, the Merger Agreement
and the RRA represent the entire agreement of the parties and supersede all
prior or contemporaneous oral or written agreements and undertakings
between the parties with respect to the specific collective subject matter
hereof and thereof (it being understood that the execution and delivery
hereof shall not affect the validity or enforceability of the Merger
Agreement, the RRA and the other documents and instruments executed and
delivered concurrently herewith in accordance with the Merger Agreement's
terms).
SECTION 5.06. Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto, in whole or in part (whether by operation of law or
otherwise), without the prior written consent of the other parties (and, in
the case of any such purported assignment by any PSS Party, without the
prior written consent of the Outside Independent Directors or, if no member
of the Company Board meets the definition of an Outside Independent
Director, a majority of the members of the audit committee of the Company),
and any attempt to make any such assignment without such consent shall be
null and void ab initio.
SECTION 5.07. Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of the parties hereto and their
respective successors and assigns, and nothing expressed or implied in this
Agreement 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 5.08. 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. As a result, the parties
expressly acknowledge and agree that no principles of contractual
interpretation (whether statutory or under common law) purporting to
construe ambiguities against the drafter shall apply to the interpretation,
application or enforcement of this Agreement.
SECTION 5.09. Governing Law; Consent to Jurisdiction; Waiver of Trial
by Jury.
(a) This Agreement shall be governed by, and construed in
accordance with, the law of the State of Delaware, without regard to its
conflicts or choice of law principles.
(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 transactions contemplated hereby or for recognition or
enforcement of any judgment relating hereto, 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 5.01. Nothing in this Agreement will 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 5.09(c).
SECTION 5.10. Counterparts. This Agreement may be executed by
facsimile signature and in two or more counterparts, and by the different
parties hereto in separate 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 5.11. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms
or were otherwise breached. It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions, without the posting of any
bond, to prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof, this being in addition to any other remedy to
which they may be entitled at law or in equity.
SECTION 5.12 Termination. This Agreement automatically shall terminate
upon the earliest of (a) the date of the 2007 Annual Meeting, (b) the first
date upon which the PSS Parties and their respective Affiliates
collectively Beneficially Own less than 65% of the then outstanding shares
of Company Common Stock and (c) the date a Qualifying Tender Offer and the
related back-end merger are completed and all outstanding shares of Company
Common Stock are owned by PSS or his Affiliates.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
PSS
/s/ Xx. Xxxxxxx Soon-Shiong
-----------------------------------
Xx. Xxxxxxx Soon-Shiong
Address:
c/o American Pharmaceutical Partners, Inc.
00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
CALIFORNIA CAPITAL LIMITED PARTNERSHIP
BY: THEMBA LLC, ITS GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
Address:
Californian Capital Limited Partnership
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
THEMBA 2005 TRUST I
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
Address:
Themba 2005 Trust I
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
THEMBA 2005 TRUST II
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
Address:
Themba 2005 Trust II
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
THE 2005 TWO-YEAR ANNUITY TRUST A
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
Address:
The 2005 Two-Year Annuity Trust A
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
THE 2005 TWO-YEAR ANNUITY TRUST B
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
Address:
The 2005 Two-Year Annuity Trust B
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
THEMBA CREDIT LLC
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
Address:
Themba Credit, LLC
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
RSU PLAN LLC
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
Address:
RSU Plan, LLC
Att: Xxxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
AMERICAN PHARMACEUTICAL PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Exec. V.P. & CFO
Address:
American Pharmaceutical Partners, Inc.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: General Counsel
Fax: (000) 000-0000
