AGREEMENT AND PLAN OF MERGER
BY AND AMONG
AMGEN INC.,
AMS ACQUISITION INC.
AND
IMMUNEX CORPORATION
DATED AS OF DECEMBER 16, 2001
TABLE OF CONTENTS
ARTICLE 1. The Merger....................................................... 1
Section 1.1 The Merger.............................................1
Section 1.2 Closing................................................1
Section 1.3 Effect of the Merger...................................2
Section 1.4 Articles of Incorporation; Bylaws......................2
Section 1.5 Directors and Officers of the Surviving Corporation....2
Section 1.6 Directors of Parent....................................2
ARTICLE 2. Conversion of Securities; Exchange of Certificates.................2
Section 2.1 Conversion of Securities...............................2
Section 2.2 Exchange of Certificates...............................4
Section 2.3 Stock Transfer Books...................................7
Section 2.4 Stock Options..........................................7
Section 2.5 Employee Stock Purchase Plan...........................8
Section 2.6 Employment Agreement...................................8
Section 2.7 AHP Agreements.........................................8
Section 2.8 Role of Seattle and Rhode Island Following the Merger..9
ARTICLE 3. Representations and Warranties of the Company......................9
Section 3.1 Organization and Qualification; Subsidiaries...........9
Section 3.2 Articles of Incorporation and Bylaws; Corporate
Books and Records......................................9
Section 3.3 Capitalization........................................10
Section 3.4 Authority.............................................11
Section 3.5 No Conflict; Required Filings and Consents............11
Section 3.6 Permits; Compliance With Law..........................12
Section 3.7 SEC Filings; Financial Statements.....................13
Section 3.8 Absence of Certain Changes or Events..................13
Section 3.9 Employee Benefit Plans................................14
Section 3.10 Labor and Other Employment Matters....................16
Section 3.11 Tax Treatment.........................................17
Section 3.12 Contracts.............................................17
Section 3.13 Litigation............................................18
Section 3.14 Environmental Matters.................................18
Section 3.15 Intellectual Property.................................19
Section 3.16 Taxes.................................................20
Section 3.17 Insurance.............................................20
Section 3.18 Properties............................................20
Section 3.19 Regulatory Compliance.................................21
Section 3.20 Opinion of Financial Advisor..........................22
Section 3.21 Vote Required.........................................22
Section 3.22 Brokers...............................................22
ARTICLE 4. Representations and Warranties of Parent and Merger Sub...........22
Section 4.1 Organization and Qualification; Subsidiaries..........22
Section 4.2 Certificate of Incorporation and Bylaws; Corporate
Books and Records.....................................23
Section 4.3 Capitalization........................................23
Section 4.4 Authority Relative to This Agreement..................24
Section 4.5 No Conflict; Required Filings and Consents............24
Section 4.6 Permits; Compliance With Law..........................25
Section 4.7 SEC Filings; Financial Statements.....................25
Section 4.8 Absence of Certain Changes or Events..................26
Section 4.9 Litigation............................................26
Section 4.10 Environmental Matters.................................27
Section 4.11 Intellectual Property.................................27
Section 4.12 Regulatory Compliance.................................27
Section 4.13 Tax Treatment.........................................28
Section 4.14 Ownership of Merger Sub; No Prior Activities..........28
Section 4.15 Opinion of Financial Advisor..........................28
Section 4.16 Vote Required.........................................28
Section 4.17 Brokers...............................................28
Section 4.18 Sufficient Funds......................................28
ARTICLE 5. Covenants .......................................................28
Section 5.1 Conduct of Business by the Company Pending the
Closing...............................................28
Section 5.2 Conduct of Business by Parent Pending the Closing.....32
Section 5.3 Cooperation...........................................33
Section 5.4 Tax-Free Reorganization Treatment.....................33
Section 5.5 Control of Other Party's Business.....................33
ARTICLE 6. Additional Agreements.............................................34
Section 6.1 Registration Statement; Proxy Statement...............34
Section 6.2 Shareholders' Meetings................................35
Section 6.3 Access to Information; Confidentiality................36
Section 6.4 No Solicitation of Transactions.......................37
Section 6.5 Appropriate Action; Consents; Filings.................39
Section 6.6 Certain Notices.......................................41
Section 6.7 Public Announcements..................................41
Section 6.8 Nasdaq Listing........................................41
Section 6.9 Employee Benefit Matters..............................41
Section 6.10 Indemnification of Directors and Officers.............42
Section 6.11 Plan of Reorganization................................43
Section 6.12 Affiliate Letters.....................................43
Section 6.13 Section 16 Matters....................................43
Section 6.14 Stock Award Matters...................................43
Section 6.15 Restructure of Transaction............................44
ARTICLE 7. Closing Conditions................................................44
Section 7.1 Conditions to Obligations of Each Party Under This
Agreement.............................................44
Section 7.2 Additional Conditions to Obligations of Parent and
Merger Sub............................................45
Section 7.3 Additional Conditions to Obligations of the Company...46
ARTICLE 8. Termination, Amendment and Waiver.................................47
Section 8.1 Termination...........................................47
Section 8.2 Effect of Termination.................................48
Section 8.3 Amendment.............................................50
Section 8.4 Waiver................................................50
Section 8.5 Fees and Expenses.....................................50
ARTICLE 9. General Provisions................................................50
Section 9.1 Non-Survival of Representations and Warranties........50
Section 9.2 Notices...............................................50
Section 9.3 Certain Definitions...................................52
Section 9.4 Terms Defined Elsewhere...............................58
Section 9.5 Headings..............................................61
Section 9.6 Severability..........................................61
Section 9.7 Entire Agreement......................................61
Section 9.8 Assignment............................................61
Section 9.9 Parties in Interest...................................61
Section 9.10 Mutual Drafting.......................................61
Section 9.11 Governing Law; Consent to Jurisdiction; Waiver of
Trial by Jury.........................................62
Section 9.12 Specific Performance..................................63
Section 9.13 Disclosure............................................63
Section 9.14 Counterparts..........................................63
Exhibit 6.12 Form of Affiliate Letter
Exhibit 7.2(c)(i) Parent Tax Matters Certificate
Exhibit 7.2(c)(ii) Company Tax Matters Certificate
AGREEMENT AND PLAN OF MERGER, dated as of December 16,
2001 (this "Agreement"), by and among Amgen Inc., a Delaware corporation
("Parent"), AMS Acquisition Inc., a Washington corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and Immunex Corporation,
a Washington corporation (the "Company").
WHEREAS, the respective Boards of Directors of Parent,
Merger Sub and the Company have approved the merger of Merger Sub with and
into the Company (the "Merger") upon the terms and subject to the
conditions of this Agreement and in accordance with the Business
Corporation Act of the State of Washington (the "WBCA");
WHEREAS, the respective Boards of Directors of Parent and
the Company have determined that the Merger is in furtherance of and
consistent with their respective business strategies and is in the best
interest of their respective shareholders, and Parent has approved this
Agreement and the Merger as the sole shareholder of Merger Sub;
WHEREAS, as a condition to and inducement to Parent's and
Merger Sub's willingness to enter into this Agreement, simultaneously with
the execution of this Agreement, American Home Products Corporation, a
Delaware corporation and shareholder of the Company ("AHP"), is entering
into a Shareholder Voting Agreement with Parent and Merger Sub (the "Voting
Agreement");
WHEREAS, for federal income tax purposes, it is intended
that the Merger shall qualify as a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended (the
"Code"); and
WHEREAS, certain capitalized terms used herein are
defined in Section 9.3;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
in this Agreement and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE 1.
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to
satisfaction or waiver of the conditions set forth in this Agreement, and
in accordance with the WBCA, at the Effective Time, Merger Sub shall be
merged with and into the Company. As a result of the Merger, the separate
corporate existence of Merger Sub shall cease and the Company shall
continue as the surviving corporation of the Merger (the "Surviving
Corporation").
Section 1.2 Closing. The closing of the Merger (the
"Closing") shall take place on the first Business Day after the
satisfaction or waiver (subject to applicable Law) of the conditions
(excluding conditions that, by their nature, cannot be satisfied until the
Closing Date) set forth in Article 7, unless this Agreement has been
theretofore terminated pursuant to its terms or unless another time or date
is agreed to in writing by the parties hereto (the actual date of the
Closing being referred to herein as the "Closing Date"). The Closing shall
be held at the offices of Xxxxxx & Xxxxxxx, 000 Xxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, unless another place is agreed to in
writing by the parties hereto. As soon as practicable after the Closing
Date, the parties hereto shall cause the Merger to be consummated by filing
articles of merger relating to the Merger (the "Articles of Merger") with
the Secretary of State of the State of Washington, in such form as required
by, and executed in accordance with the relevant provisions of, the WBCA
(the date and time of such filing, or if another date and time is specified
in such filing, such specified date and time, being the "Effective Time").
Section 1.3 Effect of the Merger. At the Effective Time,
the effect of the Merger shall be as provided in the applicable provisions
of the WBCA. Without limiting the generality of the foregoing, at the
Effective Time, except as otherwise provided herein, all the property,
rights, privileges, powers and franchises of the Company and Merger Sub
shall vest in the Surviving Corporation, and all debts, liabilities and
duties of the Company and Merger Sub shall become the debts, liabilities
and duties of the Surviving Corporation.
Section 1.4 Articles of Incorporation; Bylaws.
(a) Articles of Incorporation. At the Effective Time, the
Articles of Incorporation of the Surviving Corporation shall be amended in
their entirety to read as the Articles of Incorporation of Merger Sub,
until thereafter changed or amended as provided therein or by applicable
Law, except that Article I thereof shall be amended to read as follows:
"The name of the Corporation is Immunex Corporation." Such Articles shall
not be inconsistent with Section 6.10.
(b) Bylaws. At the Effective Time, the Bylaws of Merger
Sub, as in effect immediately prior to the Effective Time, shall be the
Bylaws of the Surviving Corporation, until thereafter changed or amended as
provided therein or by applicable Law. Such Bylaws shall not be
inconsistent with Section 6.10.
Section 1.5 Directors and Officers of the Surviving
Corporation. The directors of Merger Sub immediately prior to the Effective
Time shall be the initial directors of the Surviving Corporation, each to
hold office in accordance with the Articles of Incorporation and Bylaws of
the Surviving Corporation. The officers of Merger Sub immediately prior to
the Effective Time shall be the initial officers of the Surviving
Corporation, each to hold office in accordance with the Articles of
Incorporation and Bylaws of the Surviving Corporation.
Section 1.6 Directors of Parent. At or prior to the
Effective Time, the Board of Directors of Parent shall take all action
necessary so that, effective immediately following the Effective Time,
Xxxxxx X. Xxxxxxx shall be appointed to the Board of Directors of Parent.
If at the Effective Time Parent has multiple classes of directors, Parent
shall take all action reasonably necessary, subject to applicable Law, to
appoint Xx. Xxxxxxx to the class of directors with the longest remaining
term as of the Effective Time, provided, that Parent shall not be required
to request that an incumbent director of Parent switch classes.
ARTICLE 2.
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
Section 2.1 Conversion of Securities. At the Effective
Time, by virtue of the Merger and without any action on the part of Merger
Sub, the Company or the holders of any of the following securities:
(a) Conversion Generally. Each share of common stock, par
value $0.01 per share, of the Company ("Company Common Stock") issued and
outstanding immediately prior to the Effective Time (other than any shares
of Company Common Stock to be canceled pursuant to Section 2.1(b) and
dissenting shares referred to in Section 2.1(e)) shall be converted,
subject to Section 2.2(e), into the right to receive (i) 0.440 (the
"Exchange Ratio") of a share of common stock, par value $0.0001 per share
("Parent Common Stock"), of Parent (the "Common Stock Consideration") and
(ii) $4.50 in cash (the "Cash Consideration," and together with the Common
Stock Consideration, the "Merger Consideration"). All such shares of
Company Common Stock shall no longer be outstanding and shall automatically
be canceled and retired and shall cease to exist, and each certificate
previously representing any such shares shall thereafter represent the
right to receive the Merger Consideration payable in respect of such shares
of Company Common Stock.
(b) Parent-Owned Shares. All shares of Company Common
Stock owned by Parent or any of its Subsidiaries shall be cancelled and
retired and shall cease to exist and no Merger Consideration or other
consideration shall be delivered in exchange therefor.
(c) Merger Sub. Each share of common stock of Merger Sub
issued and outstanding immediately prior to the Effective Time shall be
converted into and be exchanged for one newly and validly issued, fully
paid and nonassessable share of common stock of the Surviving Corporation.
(d) Change in Shares. If, between the date of this
Agreement and the Effective Time, the outstanding shares of Parent Common
Stock or Company Common Stock shall have been changed into, or exchanged
for, a different number of shares or a different class, by reason of any
stock dividend, subdivision, reclassification, recapitalization, split,
combination or exchange of shares, the Exchange Ratio and the Option
Exchange Ratio shall be correspondingly adjusted to provide the holders of
Company Common Stock and Company Options the same economic effect as
contemplated by this Agreement prior to such event.
(e) Dissenting Shares. Notwithstanding anything in this
Agreement to the contrary, with respect to each share of Company Common
Stock as to which the holder thereof shall have properly complied with the
provisions of Chapter 23B.13 of the WBCA as to dissenters' rights (each, a
"Dissenting Share"), if any, such holder shall be entitled to payment,
solely from the Surviving Corporation, of the appraisal value of the
Dissenting Shares to the extent permitted by and in accordance with the
provisions of Chapter 23B.13 of the WBCA; provided, however, that (i) if
any holder of Dissenting Shares, under the circumstances permitted by and
in accordance with the WBCA, affirmatively withdraws such holder's demand
for appraisal of such Dissenting Shares, (ii) if any holder of Dissenting
Shares fails to establish such holder's entitlement to dissenters' rights
as provided in the WBCA or (iii) if any holder of Dissenting Shares takes
or fails to take any action the consequence of which is that such holder is
not entitled to payment for such holder's shares under the WBCA, such
holder or holders (as the case may be) shall forfeit the right to appraisal
of such shares of Company Common Stock and such shares of Company Common
Stock shall thereupon be deemed to have been converted, as of the Effective
Time, into and represent the right to receive the Merger Consideration
payable in respect of such shares of Company Common Stock. The Company
shall give Parent prompt notice of any demands received by the Company for
appraisal of shares of Company Common Stock, and Parent shall have the
right to participate in all negotiations and proceedings with respect to
such demands. The Company shall not settle, make any payments with respect
to, or offer to settle, any claim with respect to Dissenting Shares without
the written consent of Parent.
(f) Associated Rights. References in this Agreement to
Parent Common Stock shall include, unless the context requires otherwise,
the associated Preferred Share Purchase Rights issued pursuant to the
Amended and Restated Rights Agreement dated as of December 12, 2000 between
Parent and American Stock Transfer and Trust Company, as Rights Agent (the
"Rights Plan").
Section 2.2 Exchange of Certificates.
(a) Exchange Agent. As of the Effective Time, Parent
shall deposit, or shall cause to be deposited, with American Stock Transfer
and Trust Company or another bank or trust company designated by Parent and
reasonably satisfactory to the Company (the "Exchange Agent"), for the
benefit of the holders of shares of Company Common Stock, for exchange, in
accordance with this Article 2, through the Exchange Agent, sufficient cash
and certificates representing shares of Parent Common Stock to make all
deliveries pursuant to this Article 2. Parent agrees to make available to
the Exchange Agent, from time to time as needed, cash sufficient to pay any
dividends and other distributions pursuant to Section 2.2(c). The Exchange
Agent shall, pursuant to irrevocable instructions, deliver the Merger
Consideration contemplated to be paid for shares of Company Common Stock
pursuant to this Agreement out of the Exchange Fund. Except as contemplated
by Sections 2.2(c) and 2.2(e) hereof, the Exchange Fund shall not be used
for any other purpose. Any cash and certificates representing Parent Common
Stock deposited with the Exchange Agent (including the proceeds from sales
of Excess Shares in accordance with Section 2.2(e)) shall be referred to as
the "Exchange Fund."
(b) Exchange Procedures. Promptly after the Effective
Time, Parent shall instruct the Exchange Agent to mail to each holder of
record of a certificate or certificates which immediately prior to the
Effective Time represented outstanding shares of Company Common Stock (the
"Certificates") (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon proper delivery of the Certificates to the Exchange
Agent and shall be in customary form) and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for the Merger
Consideration payable in respect of the shares of Company Common Stock
represented by such Certificates. Upon surrender of a Certificate for
cancellation to the Exchange Agent together with such letter of
transmittal, properly completed and duly executed, and such other documents
as may be required pursuant to such instructions, the holder of such
Certificate shall be entitled to receive in exchange therefor the Merger
Consideration payable in respect of the shares of Company Common Stock
represented by such Certificate, cash in lieu of fractional shares of
Parent Common Stock to which such holder is entitled pursuant to Section
2.2(e) and any dividends or other distributions to which such holder is
entitled pursuant to Section 2.2(c), and the Certificate so surrendered
shall forthwith be canceled. No interest shall be paid or accrued on any
Cash Consideration, cash in lieu of fractional shares or on any unpaid
dividends and distributions payable to holders of Certificates. In the
event of a transfer of ownership of shares of Company Common Stock which is
not registered in the transfer records of the Company, the Merger
Consideration payable in respect of such shares of Company Common Stock may
be paid to a transferee if the Certificate representing such shares of
Company Common Stock is presented to the Exchange Agent, accompanied by all
documents required to evidence and effect such transfer and by evidence
that any applicable stock transfer Taxes have been paid. Until surrendered
as contemplated by this Section 2.2, each Certificate shall be deemed at
any time after the Effective Time to represent only the right to receive
upon such surrender the Merger Consideration payable in respect of the
shares of Company Common Stock represented by such Certificate, cash in
lieu of any fractional shares of Parent Common Stock to which such holder
is entitled pursuant to Section 2.2(e) and any dividends or other
distributions to which such holder is entitled pursuant to Section 2.2(c).
(c) Distributions with Respect to Unexchanged Shares of
Parent Common Stock. No dividends or other distributions declared or made
with respect to shares of Parent Common Stock, with a record date after the
Effective Time, shall be paid to the holder of any unsurrendered
Certificate, and no cash payment in lieu of fractional shares of Parent
Common Stock shall be paid to any such holder pursuant to Section 2.2(e),
unless and until the holder of such Certificate shall surrender such
Certificate. Subject to the effect of escheat, Tax or other applicable
Laws, following surrender of any such Certificate, there shall be paid to
such holder of the certificates representing whole shares of Parent Common
Stock issuable in exchange therefor, without interest, (i) promptly, the
amount of any cash due pursuant to Section 2.1 and cash payable in lieu of
fractional shares of Parent Common Stock to which such holder is entitled
pursuant to Section 2.2(e) and the amount of dividends or other
distributions with a record date at or after the Effective Time theretofore
paid with respect to such whole shares of Parent Common Stock and (ii) at
the appropriate payment date, the amount of dividends or other
distributions, with a record date at or after the Effective Time but prior
to such surrender and a payment date subsequent to such surrender, payable
with respect to such whole shares of Parent Common Stock.
(d) Further Rights in Company Common Stock. The Merger
Consideration issued upon conversion of a share of Company Common Stock in
accordance with the terms hereof (including any dividends or distributions
pursuant to Section 2.2(c) or Section 2.2(e)) shall be deemed to have been
issued in full satisfaction of all rights pertaining to such share of
Company Common Stock.
(e) Fractional Shares. No certificates or scrip
representing fractional shares of Parent Common Stock shall be issued upon
the surrender for exchange of Certificates, no dividend or distribution
with respect to Parent Common Stock shall be payable on or with respect to
any fractional share and such fractional share interests shall not entitle
the owner thereof to any rights of a stockholder of Parent.
(i) As promptly as practicable following the Effective
Time, the Exchange Agent shall determine the closest number of whole shares
of Parent Common Stock represented by the aggregate of the fractional share
interests in Parent Common Stock to which all holders of Company Common
Stock are entitled (the "Excess Shares"). As soon after the Effective Time
as practicable, the Exchange Agent, as agent for such holders of Parent
Common Stock, shall sell the Excess Shares at then prevailing prices on
Nasdaq, all in the manner provided in this Section 2.2(e).
(ii) The sale of the Excess Shares by the Exchange Agent
shall be executed on Nasdaq through one or more member firms of Nasdaq and
shall be executed in round lots to the extent practicable. Until the net
proceeds of any such sale or sales have been distributed to such holders of
Company Common Stock, the Exchange Agent shall hold such proceeds in trust
for such holders of Company Common Stock as part of the Exchange Fund. All
commissions, transfer Taxes and other out-of-pocket transaction costs of
the Exchange Agent incurred in connection with such sale or sales of Excess
Shares shall be deducted from the Exchange Fund. In addition, the Exchange
Agent's compensation and expenses in connection with such sale or sales
shall be deducted from the Exchange Fund. The Exchange Agent shall
determine the portion of such net proceeds to which each holder of Company
Common Stock shall be entitled, if any, by multiplying the amount of the
aggregate net proceeds by a fraction the numerator of which is the amount
of the fractional share interest to which such holder of Company Common
Stock is entitled (after taking into account all shares of Parent Common
Stock to be issued to such holder) and the denominator of which is the
aggregate amount of fractional share interests to which all holders of
Company Common Stock are entitled.
(iii) As soon as practicable after the determination of
the amount of cash, if any, to be paid to holders of Company Common Stock
with respect to any fractional share interests, the Exchange Agent shall
promptly pay such amounts to such holders of Company Common Stock subject
to and in accordance with the terms of this Article 2.
(f) Termination of Exchange Fund. Any portion of the
Exchange Fund which remains undistributed to the holders of Company Common
Stock for one year after the Effective Time shall be delivered to Parent,
upon demand, and, from and after such delivery to Parent, any holders of
Company Common Stock who have not theretofore complied with this Article 2
shall thereafter look only to Parent for the Merger Consideration payable
in respect of such shares of Company Common Stock, any cash in lieu of
fractional shares of Parent Common Stock to which they are entitled
pursuant to Section 2.2(e) and any dividends or other distributions with
respect to Parent Common Stock to which they are entitled pursuant to
Section 2.2(c), in each case, without any interest thereon.
(g) No Liability. None of Parent, the Surviving
Corporation or the Company shall be liable to any holder of shares of
Company Common Stock for any such shares of Parent Common Stock (or
dividends or distributions with respect thereto) or cash from the Exchange
Fund delivered to a public official pursuant to any abandoned property,
escheat or similar Law.
(h) Lost Certificates. If any Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by
the person claiming such Certificate to be lost, stolen or destroyed and,
if required by Parent, the posting by such person of a bond, in such
reasonable amount as Parent may direct, as indemnity against any claim that
may be made against it with respect to such Certificate, the Exchange Agent
shall pay in exchange for such lost, stolen or destroyed Certificate the
Merger Consideration payable in respect of the shares of Company Common
Stock represented by such Certificate, any cash in lieu of fractional
shares of Parent Common Stock to which the holders thereof are entitled
pursuant to Section 2.2(e) and any dividends or other distributions to
which the holders thereof are entitled pursuant to Section 2.2(c), in each
case, without any interest thereon.
(i) Withholding. Parent or the Exchange Agent shall be
entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of Company Common Stock such
amounts as Parent or the Exchange Agent are required to deduct and withhold
under the Code, or any Tax Law, with respect to the making of such payment.
To the extent that amounts are so withheld by Parent or the Exchange Agent,
such withheld amounts shall be treated for all purposes of this Agreement
as having been paid to the holder of Company Common Stock in respect of
whom such deduction and withholding was made by Parent or the Exchange
Agent.
(j) Investment of Exchange Fund. The Exchange Agent shall
invest any cash included in the Exchange Fund, as directed by Parent, on a
daily basis. Any interest and other income resulting from such investments
shall be paid to Parent upon termination of the Exchange Fund pursuant to
Section 2.2(f). In the event the cash in the Exchange Fund shall be
insufficient to fully satisfy all of the payment obligations to be made by
the Exchange Agent hereunder, Parent shall promptly deposit cash into the
Exchange Fund in an amount which is equal to the deficiency in the amount
of cash required to fully satisfy such payment obligations.
Section 2.3 Stock Transfer Books. At the Effective Time,
the stock transfer books of the Company shall be closed and thereafter,
there shall be no further registration of transfers of shares of Company
Common Stock theretofore outstanding on the records of the Company. From
and after the Effective Time, the holders of certificates representing
shares of Company Common Stock outstanding immediately prior to the
Effective Time shall cease to have any rights with respect to such shares
of Company Common Stock except as otherwise provided herein or by Law. On
or after the Effective Time, any Certificates presented to the Exchange
Agent or Parent for any reason shall be converted into the Merger
Consideration payable in respect of the shares of Company Common Stock
represented by such Certificates, any cash in lieu of fractional shares of
Parent Common Stock to which the holders thereof are entitled pursuant to
Section 2.2(e) and any dividends or other distributions to which the
holders thereof are entitled pursuant to Section 2.2(c), without any
interest thereon.
Section 2.4 Stock Options.
(a) At the Effective Time, each Company Option, other
than Cancelled Company Options, then outstanding under any Company Stock
Option Plan, whether or not then exercisable, shall be converted into an
option to purchase Parent Common Stock in accordance with this Section
2.4(a). Each Company Option so converted shall continue to have, and be
subject to, the same terms and conditions (including vesting schedule) as
set forth in the applicable Company Stock Option Plan and any agreements
thereunder immediately prior to the Effective Time, except that, as of the
Effective Time, (i) each Company Option shall be exercisable (or shall
become exercisable in accordance with its terms) for that number of whole
shares of Parent Common Stock equal to the product of the number of shares
that were issuable upon exercise of such Company Option immediately prior
to the Effective Time multiplied by 0.52 (the "Option Exchange Ratio"),
rounded down to the nearest whole number of shares of Parent Common Stock,
(ii) the per share exercise price for the shares of Parent Common Stock
issuable upon exercise of such Company Option so converted shall be equal
to the quotient determined by dividing the exercise price per share of
Company Common Stock at which such Company Option was exercisable
immediately prior to the Effective Time by the Option Exchange Ratio,
rounded up to the nearest whole cent, and (iii) each Company Option which
(a) is outstanding as of the date of this Agreement, (b) remains
outstanding at the Effective Time, and (c) constitutes an Accelerated
Company Option immediately prior to the Effective Time, shall be fully
vested and exercisable as to all shares of Parent Common Stock subject
thereto. Notwithstanding the foregoing, the conversion of any Company
Options which are "incentive stock options," within the meaning of Section
422 of the Code, into options to purchase Parent Common Stock shall be made
so as not to constitute a "modification" of such Company Options within the
meaning of Section 424 of the Code.
(b) At the Effective Time, each Cancelled Company Option
then outstanding under any Company Stock Option Plan shall be cancelled,
and in exchange therefor, shall be converted into an option ("Replacement
Option") to purchase that number of whole shares of Parent Common Stock
equal to the product of the number of shares subject to the related
Cancelled Company Option multiplied by 0.4, rounded down to the nearest
whole number of shares of Parent Common Stock, with an exercise price per
share equal to the fair market value of a share of Parent Common Stock as
of the date of grant of the Replacement Option (which shall be as of the
close of market on the date of the Effective Time)and otherwise subject to
the terms and conditions (including the vesting schedule) that were
applicable to the related Cancelled Company Option immediately prior to the
Effective Time, and neither the vesting nor exercisability of any Cancelled
Company Option or Replacement Option shall be accelerated except as
provided in the addendums to the Company Stock Option Plans.
Section 2.5 Employee Stock Purchase Plan. At the
Effective Time, each outstanding purchase right under the Immunex
Corporation 1999 Employee Stock Purchase Plan (the "ESPP") shall be assumed
by Parent in such manner that Parent is a corporation "issuing or assuming
a stock option in a transaction to which Section 424(a) applies" within the
meaning of the Code, and shall be converted into a right to purchase Parent
Common Stock in accordance with this Section 2.5. Each purchase right so
assumed and converted by Parent under this Agreement will continue to have,
and be subject to, the same terms and conditions set forth in the ESPP and
the documents governing the outstanding purchase rights under the ESPP,
immediately prior to the Effective Time, except that the purchase price of
shares of Parent Common Stock and the number of shares of Parent Common
Stock to be issued upon the exercise of such purchase rights shall be
adjusted in accordance with the Option Exchange Ratio.
Section 2.6 Employment Agreement. Simultaneously with the
execution of this Agreement, Parent has entered into an employment
agreement with Xxxxxx X. Xxxxxxx, which agreement shall become effective
upon the Closing.
Section 2.7 AHP Agreements. Simultaneously with the
execution of this Agreement, each of that certain Stockholders' Rights
Agreement by and among Parent, AHP, MDP Holdings, Inc. and Lederle
Parenterals, Inc., that certain Amended and Restated Promotion Agreement by
and between Parent and AHP, and that certain Agreement Regarding Governance
and Commercial Matters by and among Parent, AHP and American Cyanamid
Company (collectively, the "AHP Agreements") has been executed, which
agreements shall become effective upon the Closing (except that the
Agreement Regarding Governance and Commercial Matters shall be effective as
of the date hereof).
Section 2.8 Role of Seattle and Rhode Island Following
the Merger. Parent intends to, following the Effective Time, (i) operate
and grow the Company's Seattle, Washington facility as a major research and
development center for Parent, (ii) maintain Seattle, Washington as the
primary location for the team of employees responsible for Enbrel, (iii)
complete the Company's Helix Project research and technology center in
Seattle, Washington, in order to consolidate Parent's Seattle downtown
operations to one campus, and (iv) operate and grow the West Greenwich,
Rhode Island biotechnology manufacturing complex as a large-scale
manufacturing complex for biological products.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the corresponding section of the
Disclosure Letter delivered by the Company to Parent prior to the execution
of this Agreement (the "Company Disclosure Letter") (and subject to Section
9.13 hereof), the Company hereby represents and warrants to Parent as
follows:
Section 3.1 Organization and Qualification; Subsidiaries.
The Company is a corporation duly organized and validly existing under the
Laws of the State of Washington and has paid all excise taxes required by
the Washington Department of Revenue. Each Subsidiary of the Company
(collectively, the "Company Subsidiaries") has been duly organized and is
validly existing under the Laws of the State of Washington and has paid all
excise taxes required by the Washington Department of Revenue, except where
the failure to be so organized, existing or to have paid taxes would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect. Each of the Company and the Company Subsidiaries
has the requisite power and authority and all necessary governmental
approvals to own, lease and operate its properties and to carry on its
business as it is now being conducted, except where the failure to have
such power, authority and governmental approvals would not, individually or
in the aggregate, reasonably be expected to have a Company Material Adverse
Effect. Each of the Company and the Company Subsidiaries is duly qualified
or licensed to do business, and is in good standing (but only with respect
to jurisdictions which recognize such concepts) in each jurisdiction where
the character of the properties owned, leased or operated by it or the
nature of its business makes such qualification or licensing or good
standing necessary, except for such failures to be so qualified or licensed
and in good standing that would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect. Section
3.1 of the Company Disclosure Letter sets forth a true and complete list of
all of the Company Subsidiaries. Except with respect to securities of
non-affiliates held for investment purposes which do not constitute more
than a 5% percent interest in any such non-affiliate, neither the Company
nor any Company Subsidiary holds an Equity Interest in any other person.
Section 3.2 Articles of Incorporation and Bylaws;
Corporate Books and Records. The copies of the Company's Articles of
Incorporation (the "Company Articles") and Bylaws (the "Company Bylaws")
that are listed as exhibits to the Company's Form 10-K for the year ended
December 31, 2000 are complete and correct copies thereof as in effect on
the date hereof. The Company is not in violation of any of the provisions
of the Company Articles or the Company Bylaws as of the date hereof and
will not, as of the Closing Date, be in violation of any of the provisions
of the Company Articles or Company Bylaws, as such Company Articles and
Company Bylaws may be amended between the date hereof and the Closing Date.
True and complete copies of all minute books of the Company since January
1, 1999 have been made available by the Company to Parent.
Section 3.3 Capitalization.
(a) As of the date hereof, the authorized capital stock
of the Company consists of 1,200,000,000 shares of Company Common Stock and
30,000,000 shares of preferred stock, par value $0.01 per share (the
"Company Preferred Stock"). As of December 1, 2001, (i) 544,893,425 shares
of Company Common Stock were issued and outstanding, all of which were
validly issued and fully paid, nonassessable and, except pursuant to
Sections 2.01 and 2.02 of the Governance Agreement, free of preemptive
rights, and (ii) 51,062,923 shares of Company Common Stock were issuable
(and such number was reserved for issuance) upon exercise of Company
Options outstanding as of such date. As of the date hereof, no shares of
Company Preferred Stock are issued or outstanding.
(b) Except for outstanding Company Options, outstanding
purchase rights under the ESPP and pursuant to Sections 2.01 and 2.02 of
the Governance Agreement, as of the date hereof, there are no options,
warrants or other rights, agreements, arrangements or commitments of any
character to which the Company or any Company Subsidiary is a party or by
which the Company or any Company Subsidiary is bound relating to the issued
or unissued capital stock or other Equity Interests of the Company or any
Company Subsidiary, or obligating the Company or any Company Subsidiary to
issue or sell any shares of its capital stock or other Equity Interests.
From December 1, 2001 to the date of this Agreement, the Company has not
issued any Equity Interests with respect to Company Common Stock, other
than (x) Parent Common Stock issued upon exercise of Company Stock Options
and (y) stock options issued to newly-hired employees in the ordinary
course of business consistent with past practice. The Company has
previously provided Parent with a true and complete list, as of December
15, 2001, of the prices at which outstanding Company Options may be
exercised under the applicable Company Stock Option Plan, the number of
Company Options outstanding at each such price and the vesting schedule of
the Company Options. All shares of Company Common Stock subject to issuance
under the Company Stock Option Plans, upon issuance prior to the Effective
Time on the terms and conditions specified in the instruments pursuant to
which they are issuable, will be duly authorized, validly issued, fully
paid, nonassessable and, except pursuant to Sections 2.01 and 2.02 of the
Governance Agreement, free of preemptive rights.
(c) Except as set forth in the Governance Agreement,
there are no outstanding contractual obligations of the Company or any
Company Subsidiary (i) restricting the transfer of, (ii) affecting the
voting rights of, (iii) requiring the repurchase, redemption or disposition
of, or containing any right of first refusal with respect to, (iv)
requiring the registration for sale of, or (v) granting any preemptive or
antidilutive right with respect to, any Company Common Stock or any capital
stock of, or other Equity Interests in, any Company Subsidiary. Each
outstanding share of capital stock of each Company Subsidiary is duly
authorized, validly issued, fully paid, nonassessable and free of
preemptive rights and is owned, beneficially and of record, by the Company
or another Company Subsidiary free and clear of all security interests,
liens, claims, pledges, options, rights of first refusal, agreements,
limitations on the Company's or such other Company Subsidiary's voting
rights, charges and other encumbrances of any nature whatsoever. There are
no outstanding contractual obligations of the Company or any Company
Subsidiary to make any loan to, or any equity or other investment (in the
form of a capital contribution or otherwise) in, any Company Subsidiary or
any other person, other than guarantees by the Company of any indebtedness
or other obligations of any wholly-owned Company Subsidiary and other than
loans made in the ordinary course consistent with past practice to
employees of the Company and its Subsidiaries. The Company has not adopted
a shareholder rights plan.
Section 3.4 Authority.
(a) 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 by this
Agreement. The execution and delivery of this Agreement by the Company and
the consummation by the Company of such transactions have been duly and
validly authorized by all necessary corporate action and no other corporate
proceedings on the part of the Company and no shareholder votes are
necessary to authorize this Agreement or to consummate such transactions
other than, with respect to the Merger, as provided in Section 3.21. The
Board of Directors of the Company, by resolutions adopted by vote of at
least a majority of the Board of Directors of the Company at a meeting duly
called and held at which a quorum was present and acting throughout, has
duly (i) adopted this Agreement and the transactions contemplated hereby,
which adoption has not been rescinded or modified, (ii) resolved (subject
to Section 6.4) to recommend this Agreement and the Merger to its
shareholders for approval and (iii) directed that this Agreement be
submitted to its shareholders for consideration in accordance with this
Agreement. All necessary approvals under the Governance Agreement have been
obtained with respect to the execution and performance by the Company of
this Agreement and the consummation of the Merger. No approval by the
Company is necessary under the Governance Agreement for the execution and
performance by AHP, MDP Holdings, Inc. and Lederle Parenterals, Inc. of the
Voting Agreement. The Company has waived its rights with respect to the
Merger under Section 5.1(d) of the Governance Agreement. This Agreement has
been duly and validly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms.
(b) A majority of the Board of Directors of the Company
has approved this Agreement and the Voting Agreement and the transactions
contemplated hereby and thereby for purposes of Chapter 23B.19 of the WBCA
such that the restrictions set forth in Section 23B.19.040 of the WBCA are
not applicable to this Agreement or the Voting Agreement or the
consummation of the transactions contemplated hereby and thereby, or to the
Surviving Corporation or Parent and their Affiliates or transferees
following the Merger. No other State of Washington takeover statute or
similar statute or regulation is applicable to the Merger.
Section 3.5 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the
Company do not, and the performance of this Agreement by the Company will
not, (i) conflict with or violate any provision of the Company Articles,
the Company Bylaws, any equivalent organizational documents of any Company
Subsidiary or the Governance Agreement (assuming the Company Shareholder
Approval is obtained), (ii) assuming that all consents, approvals,
authorizations and permits described in Section 3.5(b) have been obtained
and all filings and notifications described in Section 3.5(b) have been
made and any waiting periods thereunder have terminated or expired,
conflict with or violate any Law applicable to the Company or any Company
Subsidiary or by which any property or asset of the Company or any Company
Subsidiary is bound or affected or (iii) require any consent or approval
under, result in any breach of, any loss of any benefit under or constitute
a change of control or default (or an event which with notice or lapse of
time or both would become a default) under, or give to others any right of
termination, vesting, amendment, acceleration or cancellation of, or result
in the creation of a lien or other encumbrance on any property or asset of
the Company or any Company Subsidiary pursuant to, any Contract, Company
Permit or other instrument or obligation, except, with respect to clauses
(ii) and (iii), for any such conflicts, violations, breaches, defaults or
other occurrences which would not, individually or in the aggregate,
reasonably be expected to (x) have a Company Material Adverse Effect or (y)
prevent or materially delay the performance under this Agreement by the
Company.
(b) The execution and delivery of this Agreement by the
Company do not, and the performance of this Agreement by the Company will
not, require any consent, approval, authorization or permit of, or filing
with or notification to, any domestic or foreign Governmental Entity or any
other person, except (i) under the Exchange Act, the Securities Act, any
applicable Blue Sky Law, the rules and regulations of Nasdaq, the HSR Act,
foreign or supranational antitrust and competition Laws and the filing and
recordation of the Articles of Merger as required by the WBCA and (ii)
where failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications to a person other than a
Governmental Entity, would not, individually or in the aggregate,
reasonably be expected to (x) have a Company Material Adverse Effect or (y)
prevent or materially delay the performance of this Agreement by the
Company.
Section 3.6 Permits; Compliance With Law. Each of the
Company and the Company Subsidiaries is in possession of all
authorizations, licenses, permits, certificates, approvals and clearances,
and has submitted notices to, all Governmental Entities (including all
authorizations under the Federal Food, Drug and Cosmetic Act of 1938, as
amended (the "FDCA") and the regulations of the United States Food and Drug
Administration (the "FDA") promulgated thereunder) necessary for the
Company or any Company Subsidiary to own, lease and operate its properties
or other assets and to carry on their respective businesses in the manner
described in the Company SEC Filings filed prior to the date hereof and as
it is being conducted as of the date hereof (the "Company Permits"), and
all such Company Permits are valid, and in full force and effect, except
where the failure to have, or the suspension or cancellation of, or failure
to be valid or in full force and effect of, any of the Company Permits
would not, individually or in the aggregate, reasonably be expected to have
a Company Material Adverse Effect. Neither the Company nor any Company
Subsidiary is in conflict with, or in default or violation of, (i) any Law
applicable to the Company or any Company Subsidiary or by which any
property or asset of the Company or any Company Subsidiary is bound or
affected or (ii) any Company Permits, except, with respect to clauses (i)
and (ii), for any such conflicts, defaults or violations that would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
Section 3.7 SEC Filings; Financial Statements.
(a) The Company has timely filed all registration
statements, prospectuses, forms, reports, definitive proxy statements,
schedules and documents required to be filed by it under the Securities Act
or the Exchange Act, as the case may be, since January 1, 1998
(collectively, the "Company SEC Filings"). Each Company SEC Filing (i) as
of its date, complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and (ii) did not,
at the time it was filed, contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. As of the date of
this Agreement, no Company Subsidiary is subject to the periodic reporting
requirements of the Exchange Act.
(b) Each of the consolidated financial statements
(including, in each case, any notes thereto) contained in the Company SEC
Filings was prepared in all material respects in accordance with GAAP
applied (except as may be indicated in the notes thereto and, in the case
of unaudited quarterly financial statements, as permitted by Form 10-Q
under the Exchange Act) on a consistent basis throughout the periods
indicated (except as may be indicated in the notes thereto), and each
presented fairly the consolidated financial position, results of operations
and cash flows of the Company and the consolidated Company Subsidiaries as
of the respective dates thereof and for the respective periods indicated
therein (subject, in the case of unaudited statements, to normal and
recurring year-end adjustments which did not and would not, individually or
in the aggregate, reasonably be expected to have a Company Material Adverse
Effect). The books and records of the Company and the Company Subsidiaries
have been, and are being, maintained in all material respects in accordance
with GAAP and any other applicable legal and accounting requirements.
(c) Except as and to the extent set forth on the
consolidated balance sheet of the Company and the consolidated Company
Subsidiaries as of December 31, 2000 included in the Company's Form 10-K
for the year ended December 31, 2000, including the notes thereto (the
"Company Form 10-K"), neither the Company nor any consolidated Company
Subsidiary has any liabilities or obligations of any nature (whether
accrued, absolute, contingent or otherwise) that would be required to be
reflected on a balance sheet or in notes thereto prepared in accordance
with GAAP, except for (i) liabilities or obligations incurred in the
ordinary course of business consistent with past practice since December
31, 2000 and (ii) liabilities and obligations incurred in connection with
this Agreement and the transactions contemplated hereby that would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
(d) As of the date hereof, no "material contract" (as
such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) filed
as an exhibit to the Company Form 10-K has been amended or modified, except
for such amendments or modifications which have been filed as an exhibit to
a subsequently dated Company SEC Filing or are not required to be filed
with the SEC.
Section 3.8 Absence of Certain Changes or Events. Since
December 31, 2000, except as disclosed in the Company Form 10-K or in
Company SEC Filings since December 31, 2000 through to the date of this
Agreement, including the notes thereto, and except as specifically
contemplated by, or as disclosed in, this Agreement, the Company and the
Company Subsidiaries have conducted their businesses in the ordinary course
consistent with past practice and, since such date, there has not been (a)
an event or development that would, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect or (b) any
event or development that would, individually or in the aggregate,
reasonably be expected to prevent or materially delay the performance of
this Agreement by the Company.
Section 3.9 Employee Benefit Plans.
(a) Section 3.9(a) of the Company Disclosure Letter sets
forth a true and complete list of each "employee benefit plan" as defined
in Section 3(3) of ERISA and any other material plan, policy, program,
practice, agreement, understanding or arrangement providing compensation or
other benefits to any current or former director, officer, employee or
consultant (or to any dependent or beneficiary thereof) of the Company or
any ERISA Affiliate, which are now, or with respect to any plan intended to
be qualified under 401(a) of the Code, were within the past 6 years,
maintained, sponsored or contributed to by the Company or any ERISA
Affiliate, or under which the Company or any ERISA Affiliate has any
obligation or liability, whether actual or contingent, including, without
limitation, all material incentive, bonus, deferred compensation, vacation,
holiday, cafeteria, medical, disability, stock purchase, stock option,
stock appreciation, phantom stock, restricted stock or other stock-based
compensation plans, policies, programs, practices or arrangements. Each
"employee benefit plan" as defined in Section 3(3) of ERISA and each other
material plan, policy, program, practice, agreement, understanding or
arrangement providing compensation or other benefits to any current or
former director, officer, employee or consultant (or to any dependent or
beneficiary thereof) of the Company or any ERISA Affiliate, which are now,
or were within the past 6 years, maintained, sponsored or contributed to by
the Company or any ERISA Affiliate, or under which the Company or any ERISA
Affiliate has any obligation or liability, whether actual or contingent,
including, without limitation, all material incentive, bonus, deferred
compensation, vacation, holiday, cafeteria, medical, disability, stock
purchase, stock option, stock appreciation, phantom stock, restricted stock
or other stock-based compensation plans, policies, programs, practices or
arrangements is hereinafter referred to as a "Company Benefit Plan".
Neither the Company, nor to the Knowledge of the Company, any other person,
has any express or implied commitment, whether legally enforceable or not,
to modify, change or terminate any Company Benefit Plan, other than with
respect to a modification, change or termination required by ERISA or the
Code. The Company has delivered or made available to Parent true, correct
and complete copies of all Company Benefit Plans (or, if not so delivered,
has delivered or made available to Parent a written summary of their
material terms), and, with respect thereto, all amendments, trust
agreements, insurance Contracts, other funding vehicles, determination
letters issued by the United States Internal Revenue Service (the "IRS"),
the most recent annual reports (Form 5500 series) filed with the IRS, and
the most recent actuarial report or other financial statement relating to
such Company Benefit Plan.
(b) Each Company Benefit Plan has been administered in
all material respects in accordance with its terms and all applicable Laws,
including ERISA and the Code, and contributions required to be made under
the terms of any of the Company Benefit Plans as of the date of this
Agreement have been timely made. Except as would not, individually or in
the aggregate, reasonably be expected to have a Company Material Adverse
Effect, (i) with respect to the Company Benefit Plans, no event has
occurred and, to the Knowledge of the Company, there exists no condition or
set of circumstances in connection with which the Company could be subject
to any material liability (other than for routine benefit liabilities)
under the terms of, or with respect to, such Company Benefit Plans, ERISA,
the Code or any other applicable Law, and (ii) neither the Company nor any
ERISA Affiliate has any liability under ERISA Section 502.
(c) Each Company Benefit Plan that is intended to be
qualified under Section 401(a) of the Code has obtained a favorable
determination letter from the IRS that the Company Benefit Plan is so
qualified and all related trusts are exempt from U.S. federal income
taxation under Section 501(a) of the Code, and, to the Knowledge of the
Company, nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification or exemption. Except as
would not reasonably be expected to result in material liability to the
Company or a Company ERISA Affiliate, (i) to the knowledge of the Company
there has been no prohibited transaction (within the meaning of Section 406
of ERISA or Section 4975 of the Code and other than a transaction that is
exempt under a statutory or administrative exemption) with respect to any
Company Benefit Plan, (ii) no suit, administrative proceeding, action or
other litigation has been brought, or to the Knowledge of the Company is
threatened, against or with respect to any such Company Benefit Plan,
including any audit or inquiry by the IRS or United States Department of
Labor (other than routine benefits claims), (iii) none of the assets of the
Company or any Company ERISA Affiliate is, or may reasonably be expected to
become, the subject of any lien arising under ERISA or Section 412(n) of
the Code, (iv) all Tax, annual reporting and other governmental filings
required by ERISA and the Code have been timely filed with the appropriate
Governmental Entity and all notices and disclosures have been timely
provided to participants, (v) all contributions and payments to each
Company Benefit Plan are deductible under Code Sections 162 or 404, and
(vi) no excise Tax could be imposed upon the Company under Chapter 43 of
the Code.
(d) Neither the Company nor any of its ERISA Affiliates
sponsors, maintains, contributes to or has an obligation to contribute to,
or has sponsored, maintained, contributed to or had an obligation to
contribute to, any "employee pension benefit plan" (as defined in Section
3(2) of ERISA) that is subject to Title IV of ERISA or Section 412 of the
Code, or any "multiemployer plan" as defined in Section 3(37) of ERISA.
(e) No amount that could be received (whether in cash or
property or the vesting of property), in connection with the consummation
of the transactions contemplated by this Agreement, by any employee,
officer or director of the Company or any of its Subsidiaries who is a
"disqualified individual" (as such term is defined in proposed Treasury
Regulation Section 1.280G-1) under any Company Benefit Plan or otherwise
are reasonably likely to be characterized as an "excess parachute payment"
(as defined in Section 280G(b)(1) of the Code).
(f) Except as required by Law, no Company Benefit Plan
provides any of the following retiree or post-employment benefits to any
person: medical, disability or life insurance benefits. The Company and
each ERISA Affiliate are in compliance with (i) the requirements of the
applicable health care continuation and notice provisions of the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the
regulations (including proposed regulations) thereunder and any similar
state Law and (ii) the applicable requirements of the Health Insurance
Portability and Accountability Act of 1996, as amended, and the regulations
(including the proposed regulations) thereunder, except as would not be
reasonably expected to result in material liability to the Company or a
Company ERISA Affiliate.
(g) Neither the Company nor any of its Subsidiaries,
sponsors, contributes to or has any liability with respect to any employee
benefit plan, program or arrangement that provides benefits to non-resident
aliens with no United States source income outside of the United States.
(h) The Company has delivered to Parent accurate W-2
information for the executive officers of the Company for the 1997, 1998,
1999 and 2000 calendar years.
Section 3.10 Labor and Other Employment Matters.
(a) Except as would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse
Effect, (i) no work stoppage or labor strike against the Company or any
Company Subsidiary by employees is pending or threatened, (ii) neither the
Company nor any Company Subsidiary is delinquent in payments to any of its
employees for any wages, salaries, commissions, bonuses or other direct
compensation for any services performed for it or amounts required to be
reimbursed to such employees, (iii) the Company and each of the Company
Subsidiaries are in compliance with all applicable Laws respecting labor,
employment, fair employment practices, terms and conditions of employment,
workers" compensation, occupational safety, plant closings, and wage and
hours, (iv) the Company and each Company Subsidiary has withheld all
amounts required by Law or by agreement to be withheld from the wages,
salaries, and other payments to employees; and is not liable for any
arrears of wages or any Taxes or any penalty for failure to comply with any
of the foregoing, (v) neither the Company nor any Company Subsidiary is
liable for any payment to any trust or other fund or to any Governmental
Entity, with respect to unemployment compensation benefits, social security
or other benefits or obligations for employees (other than routine payments
to be made in the ordinary course of business consistent with past
practice), (vi) there are no material pending claims against the Company or
any Company Subsidiary under any workers' compensation plan or policy or
for long term disability and (vii) there are no material controversies
pending or, to the Knowledge of the Company, threatened, between the
Company or any Company Subsidiary and any of their respective current or
former employees, which controversies have or could reasonably be expected
to result in an action, suit, proceeding, claim, arbitration or
investigation before any Governmental Entity. To the Company's Knowledge,
as of the date hereof, no employees of the Company or any Company
Subsidiary are in any material respect in violation of any term of any
employment Contract, non-disclosure agreement, noncompetition agreement, or
any restrictive covenant to a former employer relating to the right of any
such employee to be employed by the Company or any Company Subsidiary
because of the nature of the business conducted or presently proposed to be
conducted by the Company or such Company Subsidiary or to the use of trade
secrets or proprietary information of others. As of the date hereof, no
employee of the Company or any Company Subsidiary, at the officer level or
above, has given notice to the Company or any Company Subsidiary that any
such employee intends to terminate his or her employment with the Company
or any Company Subsidiary.
(b) Neither the Company nor any Company Subsidiary is a
party to or otherwise bound by any collective bargaining Contract with a
labor union or labor organization, nor is any such Contract presently being
negotiated. As of the date hereof, there has not been since January 1, 1998
a representation question respecting any of the employees of the Company or
any Company Subsidiary and, to the Knowledge of the Company, there are no
campaigns being conducted to solicit cards from employees of the Company or
any Company Subsidiary to authorize representation by any labor
organization.
(c) The Company has identified in Section 3.10(c) of the
Company Disclosure Letter and has made available to Parent true and
complete copies of (i) all severance and employment agreements with
directors, officers or employees of or consultants to the Company or any
Company Subsidiary, (ii) all severance programs and policies of each of the
Company and each Company Subsidiary with or relating to its employees, and
(iii) all plans, programs, agreements and other arrangements of each of the
Company and each Company Subsidiary with or relating to its directors,
officers, employees or consultants which contain change in control
provisions. Neither the execution and delivery of this Agreement or other
related agreements, nor the consummation of the transactions contemplated
hereby or thereby will (either alone or in conjunction with any other
event, such as termination of employment) (i) result in any payment
(including, without limitation, severance, unemployment compensation,
parachute or otherwise) becoming due to any director or any employee of the
Company or any Company Subsidiary or Affiliate from the Company or any
Company Subsidiary or Affiliate under any Company Benefit Plan or
otherwise, (ii) significantly increase any benefits otherwise payable under
any Company Benefit Plan or (iii) result in any acceleration of the time of
payment or vesting of any benefits.
Section 3.11 Tax Treatment. None of the Company, any
Company Subsidiary nor any of the Company's Affiliates has taken or agreed
to take any action that would prevent the Merger from qualifying as a
reorganization within the meaning of Section 368(a) of the Code. The
Company is not aware of any agreement, plan or other circumstance that
would prevent the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code.
Section 3.12 Contracts. Except as filed as exhibits to
the Company SEC Filings filed prior to the date of this Agreement, or as
disclosed in Section 3.12 of the Company Disclosure Letter, neither the
Company nor any Company Subsidiary is a party to or bound by any Contract
that (i) is a "material contract" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC), (ii) relates to the co-promotion
or distribution of Enbrel, the manufacturing and supply by third parties of
Enbrel, the out-license of Company Intellectual Property relating to Enbrel
to third parties pursuant to which the Company currently receives
royalties, or the in-license of intellectual property relating to Enbrel
from third parties pursuant to which the Company currently pays royalties
or (iii) limits or otherwise restricts the Company or any Company
Subsidiary or that would, after the Effective Time, limit or restrict
Parent or any of its Subsidiaries (including the Surviving Corporation and
its Subsidiaries) or any successor thereto, from engaging or competing in
any line of business or in any geographic area, which Contracts would be
material to Parent and its Subsidiaries (determined after giving effect to
the Merger). Each Contract of the type described in this Section 3.12,
whether or not set forth in Section 3.12 of the Company Disclosure Letter,
is referred to herein as a "Company Material Contract." Each Company
Material Contract is valid and binding on the Company or a Company
Subsidiary party thereto and, to the Company's Knowledge, each other party
thereto, and is in full force and effect, and the Company and each of the
Company Subsidiaries have performed in all material respects all
obligations required to be performed by them to the date hereof under each
Company Material Contract and, to the Company's Knowledge, each other party
to each Company Material Contract has performed in all material respects
all obligations required to be performed by it under such Company Material
Contract, except, in each case, as would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse
Effect. Neither the Company nor any Company Subsidiary knows of, or has
received notice of, any violation or default under (or any condition which
with the passage of time or the giving of notice would cause such a
violation of or default under) any Company Material Contract or any other
Contract to which it is a party or by which it or any of its properties or
assets is bound, except for violations or defaults that would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
Section 3.13 Litigation. Except as and to the extent
disclosed in the Company SEC Filings, including the notes thereto, filed
prior to the date of this Agreement or would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse
Effect, (i) there is no suit, claim, action, proceeding or investigation
pending or, to the Knowledge of the Company, threatened in writing against
the Company or any Company Subsidiary or for which the Company or any
Company Subsidiary is obligated to indemnify a third party that, as of the
date hereof, relates to Enbrel, and (ii) neither the Company nor any
Company Subsidiary is subject to any outstanding and unsatisfied order,
writ, injunction, decree or arbitration ruling, award or other finding.
There is no suit, claim, action, proceeding or investigation pending or, to
the Knowledge of the Company, threatened in writing against the Company or
any Company Subsidiary that, as of the date hereof, challenges the validity
or propriety, or seeks to prevent consummation of, the Merger or any other
transaction contemplated by this Agreement.
Section 3.14 Environmental Matters. Except as disclosed
in the Company Form 10-K or in Company SEC Filings, including the notes
thereto, since December 31, 2000 through to the date of this Agreement or
would not, individually or in the aggregate, reasonably be expected to have
a Company Material Adverse Effect:
(a) The Company and the Company Subsidiaries (i) are in
compliance with all, and are not subject to any liability, in each case
with respect to any, applicable Environmental Laws, (ii) hold or have
applied for all Environmental Permits necessary to conduct their current
operations and (iii) are in compliance with their respective Environmental
Permits.
(b) Neither the Company nor any Company Subsidiary has
received any written notice, demand, letter, claim or request for
information alleging that the Company or any Company Subsidiary may be in
violation of, or liable under, any Environmental Law.
(c) Neither the Company nor any Company Subsidiary (i)
has entered into or agreed to any consent decree or order or is subject to
any judgment, decree or judicial order relating to compliance with
Environmental Laws, Environmental Permits or the investigation, sampling,
monitoring, treatment, remediation, removal or cleanup of Hazardous
Materials and, to the Knowledge of the Company, no investigation,
litigation or other proceeding is pending or threatened in writing with
respect thereto or (ii) is an indemnitor in connection with any claim
threatened or asserted in writing by any third-party indemnitee for any
liability under any Environmental Law or relating to any Hazardous
Materials.
(d) None of the real property owned or leased by the
Company or any Company Subsidiary is listed or, to the Knowledge of the
Company, proposed for listing on the "National Priorities List" under
CERCLA, as updated through the date hereof, or any similar state or foreign
list of sites requiring investigation or cleanup.
Section 3.15 Intellectual Property. Except as would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect, (i) the Company (or one of its Subsidiaries) owns
or has the right to use, whether through ownership, licensing or otherwise,
all Company Intellectual Property, (ii) no written claim of invalidity or
conflicting ownership rights with respect to any Company Intellectual
Property has been received by the Company or any Company Subsidiary from a
third party, (iii) no Company Intellectual Property owned by the Company or
any Company Subsidiary is the subject of any pending or, to the Company's
Knowledge, threatened action, suit, claim, investigation, arbitration,
validity or enforceability challenge or other proceeding, (iv) to the
Company's Knowledge, no Company Intellectual Property that is not owned by
the Company or any Company Subsidiary is the subject of any pending or
threatened action, suit, claim, investigation, arbitration, validity or
enforceability challenge or other proceeding, (v) no person has given
written notice to the Company or any Company Subsidiary that the use of any
Company Intellectual Property by the Company, any Company Subsidiary or any
licensee is infringing or has infringed any patent, trademark, service
xxxx, trade name, or copyright or design right or other intellectual
property right of any third party, or that the Company, any Company
Subsidiary or any licensee has misappropriated or improperly used or
disclosed any trade secret, confidential information or know-how, (vi) to
the Company's knowledge after due inquiry, the making, having made, using,
selling, offering for sale, importing, exporting, manufacturing, marketing,
licensing, reproduction, distribution or publishing by the Company of any
process, machine, manufacture or product does not, because of and to the
extent that such process, manufacture or product incorporates Company
Intellectual Property, infringe any valid claim of any patent, trademark,
service xxxx, trade name, copyright, design right, or other intellectual
property right of any third party in the jurisdictions in which such
making, using, selling, offering for sale, importing, exporting,
manufacturing, marketing, licensing, reproduction, distribution, or
publishing occurs, and does not involve the misappropriation or improper
use or disclosure of any trade secrets, confidential information or
know-how of any third party, and (vii) there exists no prior act or current
conduct or use by the Company, any Company Subsidiary or, to the Knowledge
of the Company, any third party that would void or invalidate any Company
Intellectual Property. As of the date hereof, AHP has not made any Product
Calls (as such term is defined in the Product Rights Agreement by and among
the Wyeth-Ayerst Research division of AHP, the Lederle Pharmaceutical
division of American Cyanamid Company and the Company dated as of July 1,
1998, as amended (the "Product Rights Agreement")) under the Product Rights
Agreement.
Section 3.16 Taxes.
(a) Each of the Company and each Company Subsidiary has
duly and timely filed with the appropriate Tax authorities or other
Governmental Entities all material Tax Returns that it was required to
file. All such Tax Returns are complete and accurate in all material
respects. All Taxes shown as due on such Tax Returns have been paid, and
the Company and the Company Subsidiaries have provided adequate reserves in
accordance with GAAP in the most recent financial statements contained in
the Company SEC Filings for any material Taxes that have not been paid,
whether or not shown as being due on any Tax Returns. None of the Company
nor any Company Subsidiary currently is the beneficiary of any extension of
time within which to file any material Tax Return.
(b) No claim for unpaid material Taxes has been asserted
in writing by a Tax authority or other Governmental Entity or has become a
lien against the property of the Company or any Company Subsidiary (other
than with respect to Permitted Liens for Taxes). No audit or other
proceeding with respect to any material Taxes due from or with respect to
the Company or any Company Subsidiary or any material Tax Return filed by
the Company or any Company Subsidiary is being conducted by any Tax
authority or Governmental Entity, and the Company and the Company
Subsidiaries have not received notification in writing that any such audit
or other proceeding with respect to material Taxes or any material Tax
Return is pending. No extension of the statute of limitations on the
assessment of any material Taxes has been granted by the Company or any
Company Subsidiary.
(c) All material Taxes required to be withheld, collected
or deposited by or with respect to the Company and each Company Subsidiary
have been timely withheld, collected or deposited as the case may be, and
to the extent required, have been paid to the relevant Tax authority or
other Governmental Entity.
(d) Neither the Company nor any Company Subsidiary is
responsible for the Taxes of any person other than members of the
affiliated group of which the Company is the common parent under Treasury
Regulation Section 1.1502-6 (or any similar provision of state, local, or
foreign Law), as a transferee, by Contract, or otherwise. Neither the
Company nor any Company Subsidiary is a party to, is bound by or has any
obligation under any Tax sharing or Tax indemnity agreement or similar
Contract or arrangement.
(e) Neither the Company nor any Company Subsidiary has
been a party to any distribution occurring during the two years preceding
the date of this Agreement in which the parties to such distribution
treated the distribution as one to which Section 355 of the Code is
applicable.
Section 3.17 Insurance. Copies of all material insurance
policies maintained by the Company, including fire and casualty, general
liability, product liability, business interruption and professional
liability policies, have been made available to Parent.
Section 3.18 Properties. Each of the Company and the
Company Subsidiaries has good and valid title to or a valid leasehold
interest in all its properties and assets reflected on the most recent
balance sheet contained in the Company's quarterly report on Form 10-Q that
is part of the Company SEC Filings or acquired after the date thereof,
except for (i) properties and assets sold or otherwise disposed of in the
ordinary course of business since the date of such balance sheet and (ii)
properties and assets the loss of which would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse
Effect.
Section 3.19 Regulatory Compliance.
(a) All biological and drug products being manufactured,
distributed, or developed by the Company and its Subsidiaries ("Company
Pharmaceutical Products") that are subject to the jurisdiction of the FDA
are being manufactured, labeled, stored, tested, distributed, and marketed
in compliance with all applicable requirements under the FDCA, the Public
Health Service Act, and their applicable implementing regulations, except
for noncompliances which would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect.
(b) All preclinical trials and clinical trials conducted
by or on behalf of the Company and its Subsidiaries have been, and are
being conducted in material compliance with the applicable requirements of
Good Clinical Practice, Informed Consent, and all applicable requirements
relating to protection of human subjects contained in 21 C.F.R. Parts 50,
54, and 56, except for noncompliances which, individually or in the
aggregate, would reasonably not be expected to have a Company Material
Adverse Effect.
(c) All manufacturing operations conducted by or for the
benefit of the Company and its Subsidiaries have been and are being
conducted in compliance with the FDA's applicable current Good
Manufacturing Practice regulations for drug and biological products, except
for noncompliances which, individually or in the aggregate, would not
reasonably be expected to have a Company Material Adverse Effect. In
addition, the Company and its Subsidiaries are in compliance with all
applicable registration and listing requirements set forth in 21 U.S.C.
Section 360 and 21 C.F.R. Part 207 and all similar applicable laws, except
for noncompliances which, individually or in the aggregate, would not
reasonably be expected to have a Company Material Adverse Effect.
(d) No Company Pharmaceutical Product has been recalled,
suspended or discontinued as a result of any action by the FDA or any other
similar foreign Governmental Entity by the Company or any of its
Subsidiaries or, to the Knowledge of the Company, any licensee, distributor
or marketer of any Company Pharmaceutical Product, in the United States or
outside of the United States since January 1, 1999.
(e) Neither the Company nor any of its Subsidiaries have
received any notice since January 1, 1999 that the FDA or any other
Governmental Entity has commenced, or threatened to initiate, any action to
withdraw approval, place marketing or sale restrictions, or request the
recall of any Company Pharmaceutical Product, or commenced, or threatened
to initiate, any action to enjoin or place restrictions on the production,
sale, marketing or reimbursement of any Company Pharmaceutical Products.
(f) Neither the Company, nor any of its Subsidiaries,
have committed any act, made any statement or failed to make any statement
that would reasonably be expected to provide a basis for the FDA to invoke
its policy with respect to "Fraud, Untrue Statements of Material Facts,
Bribery, and Illegal Gratuities" set forth in 56 Fed. Reg. 46191 (September
10, 1991) and any amendments thereto. Additionally, neither the Company,
the Company Subsidiaries, nor to the Knowledge of the Company, any officer,
key employee or agent of the Company has been convicted of any crime or
engaged in any conduct that would reasonably be expected to result in (i)
debarment under 21 U.S.C. Section 335a or any similar state law or
regulation or (ii) exclusion under 42 U.S.C. Section 1320a-7 or any similar
state law or regulation.
Section 3.20 Opinion of Financial Advisor. Xxxxxxx Xxxxx
& Co. (the "Company Financial Advisor") has delivered to the Board of
Directors of the Company its opinion that, as of the date of such opinion,
the Merger Consideration to be received by the holders of the shares of
Company Common Stock pursuant to the Merger is fair to such holders from a
financial point of view.
Section 3.21 Vote Required. The affirmative vote of the
holders of a majority of the outstanding shares of Company Common Stock is
the only vote of the holders of any class or series of capital stock or
other Equity Interests of the Company necessary to approve this Agreement,
the Merger and the transactions contemplated hereby (the "Company
Shareholder Approval").
Section 3.22 Brokers. No broker, finder or investment
banker (other than the Company Financial Advisor) is entitled to any
brokerage, finder's or other fee or commission in connection with the
Merger based upon arrangements made by or on behalf of the Company or any
Company Subsidiary. Prior to the date hereof, the Company has accurately
described to Parent the Company's arrangements with, and the fees that may
be paid by the Company to, the Company Financial Advisor relating to the
Merger.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except as set forth in the corresponding section of the
Disclosure Letter delivered by Parent and Merger Sub to the Company prior
to the execution of this Agreement (the "Parent Disclosure Letter") (and
subject to Section 9.13 hereof), Parent and Merger Sub hereby jointly and
severally represent and warrant to the Company as follows:
Section 4.1 Organization and Qualification; Subsidiaries.
Parent is a corporation duly organized, validly existing and in good
standing under the Laws of Delaware. Merger Sub is a corporation duly
organized and validly existing under the laws of the State of Washington
and has paid all excise taxes required by the Washington Department of
Revenue. Each Significant Subsidiary of Parent (together with Merger Sub,
the "Parent Subsidiaries") has been duly organized and is validly existing
and in good standing under the Laws of the jurisdiction of its
incorporation, except where the failure to be so organized, existing or in
good standing would not, individually or in the aggregate, reasonably be
expected to have a Parent Material Adverse Effect. Each of Parent and the
Parent Subsidiaries has the requisite power and authority and all necessary
governmental approvals to own, lease and operate its properties and to
carry on its business as it is now being conducted, except where the
failure have such power, authority and governmental approvals would not,
individually or in the aggregate, reasonably be expected to have a Parent
Material Adverse Effect. Each of Parent and the Parent Subsidiaries is duly
qualified or licensed to do business, and is in good standing (but only
with respect to jurisdictions which recognize such concepts) in each
jurisdiction where the character of the properties owned, leased or
operated by it or the nature of its business makes such qualification or
licensing or good standing necessary, except for such failures to be so
qualified or licensed and in good standing that would not, individually or
in the aggregate, reasonably be expected to have a Parent Material Adverse
Effect.
Section 4.2 Certificate of Incorporation and Bylaws;
Corporate Books and Records. The copies of the Parent Certificate and
Parent's Amended and Restated Bylaws (the "Parent Bylaws") that are listed
as exhibits to Parent's Form 10-K for the year ended December 31, 2000 are
complete and correct copies thereof as in effect on the date hereof. The
Parent is not in violation of any of the provisions of the Parent
Certificate or the Parent Bylaws as of the date hereof and will not, as of
the Closing Date, be in violation of any of the provisions of the Parent
Certificate or Parent Bylaws, as such Parent Certificate and Parent Bylaws
may be amended between the date hereof and the Closing Date. True and
complete copies of all minute books of Parent since January 1, 1999 have
been made available by Parent to the Company.
Section 4.3 Capitalization.
(a) As of the date hereof, the authorized capital stock
of Parent consists of (a) 2,750,000,000 shares of Parent Common Stock and
(b) 5,000,000 shares of preferred stock, par value $0.0001 per share (the
"Parent Preferred Stock"). As of November 30, 2001, (a) 1,048,325,488
shares of Parent Common Stock were issued and outstanding, all of which
were validly issued and fully paid, nonassessable and free of preemptive
rights and (b) 8,659,960 shares of Parent Common Stock were held in the
treasury of Parent or by Parent's Subsidiaries. As of the date hereof,
687,500 shares of Parent Preferred Stock are designated as Series A Junior
Participating Preferred Stock, and no shares of Parent Preferred Stock are
issued or outstanding. As of November 30, 2001, 95,657,177 shares of Parent
Common Stock were reserved for issuance upon exercise of stock options,
rights and warrants outstanding as of such date. Except for stock options
and agreements or arrangements described in the Parent SEC Filings,
including the notes or exhibits thereto, filed prior to the date of this
Agreement and pursuant to the rights outstanding under the Rights Plan, as
of the date hereof, there are no options, warrants or other rights,
agreements, arrangements or commitments of any character to which Parent or
any Parent Subsidiary is a party or by which Parent or any Parent
Subsidiary is bound relating to the issued or unissued capital stock or
other Equity Interests, or obligating Parent or any Parent Subsidiary to
issue or sell any shares of its capital stock or other Equity Interests.
From November 30, 2001 to the date of this Agreement, Parent has not issued
any Equity Interests with respect to Parent Common Stock, other than (x)
Parent Common Stock issued upon exercise of stock options and (y) Equity
Interests granted or issued under existing stock-based incentive
compensation plans. The shares of Parent Common Stock to be issued in
connection with the Merger, when issued as contemplated herein, will be
duly authorized, validly issued, fully paid and nonassessable and will not
be issued in violation of any preemptive rights. Except as disclosed in the
Parent SEC Filings, including the notes and exhibits thereto, as of the
date hereof, there are no outstanding contractual obligations of Parent or
any Parent Subsidiary (a) restricting the transfer of, or (b) requiring the
repurchase, redemption or disposition of, or containing any right of first
refusal with respect to, any Parent Common Stock or any capital stock of,
or other Equity Interests in, any Parent Subsidiary. As of the date hereof,
there are no outstanding contractual obligations of Parent or any Parent
Subsidiary (a) requiring the registration for sale of, (b) granting any
preemptive or antidilutive right with respect to, or (c) affecting the
voting rights (except for the Stockholders' Rights Agreement by and among
Parent, AHP, MDP Holdings, Inc. and Lederle Parenterals, Inc., dated as of
the date hereof) of, any Parent Common Stock. Except as disclosed in the
Parent SEC Filings, including the notes and exhibits thereto, as of the
date hereof, there are no outstanding contractual obligations of Parent or
any Parent Subsidiary (a) affecting the voting rights of, (b) requiring the
registration for sale of, or (c) granting any preemptive or antidilutive
right with respect to or any capital stock of, or other Equity Interests
in, any Parent Subsidiary.
(b) Each outstanding share of capital stock of each
Parent Subsidiary is duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights and is owned, beneficially and
of record, by Parent free and clear of all security interests, liens,
claims, pledges, options, rights of first refusal, agreements, limitations
on Parent's or any Parent Subsidiary's voting rights, charges and other
encumbrances of any nature whatsoever.
(c) Except as a result of the Voting Agreement, neither
Parent nor any Parent Subsidiary beneficially owns any Equity Interest in
the Company.
Section 4.4 Authority Relative to This Agreement. Each of
Parent and Merger Sub has all 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. Each of
(a) the execution and delivery of this Agreement by each of Parent and
Merger Sub and the consummation by Parent and Merger Sub of such
transactions and (b) the issuance of shares of Parent Common Stock in
accordance with the Merger has been duly and validly authorized by all
necessary corporate action by Parent and Merger Sub and no other corporate
proceedings on the part of Parent and Merger Sub and no other stockholder
votes are necessary to authorize this Agreement or to consummate such
transactions, other than, with respect to the Share Issuance, as provided
in Section 4.16. The Board of Directors of Parent, by resolutions adopted
by unanimous vote of those voting (and not subsequently rescinded or
modified in any way) at a meeting duly called and held at which a quorum
was present and acting throughout, has duly (i) determined that this
Agreement and the Merger are fair to and in the best interests of Parent
and its stockholders, and has declared the Merger to be advisable, (ii)
approved and adopted this Agreement, the Merger, the Share Issuance and the
other transactions contemplated hereby, (iii) resolved to recommend the
Share Issuance to its stockholders for approval and (iv) directed that the
Share Issuance be submitted to its stockholders for consideration. This
Agreement has been duly authorized and validly executed and delivered by
Parent and Merger Sub and constitutes the legal, valid and binding
obligations of each of Parent and Merger Sub, enforceable against Parent
and Merger Sub in accordance with its terms.
Section 4.5 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by
Parent and Merger Sub do not, and the performance of this Agreement by
Parent and Merger Sub will not, (i) conflict with or violate any provision
of the certificate or articles of incorporation or bylaws of Parent or
Merger Sub, (ii) assuming that all consents, approvals, authorizations and
permits described in Section 4.5(b) have been obtained, that Parent's
stockholders have approved the Share Issuance and that all filings and
notifications described in Section 4.5(b) have been made, and any waiting
periods thereunder have terminated or expired, conflict with or violate any
Law applicable to Parent or any Parent Subsidiary or by which any property
or asset of Parent or any Parent Subsidiary is bound or affected or (iii)
require any consent or approval under, result in any breach of, any loss of
any benefit under or constitute a change of control or default (or an event
which with notice or lapse of time or both would become a default) under,
or give to others any right of termination, vesting, amendment,
acceleration or cancellation of, or result in the creation of a lien or
other encumbrance on any property or asset of Parent or any Parent
Subsidiary pursuant to, any Contract, except, with respect to clauses (ii)
and (iii), for any such conflicts, violations, breaches, defaults or other
occurrences which would not, individually or in the aggregate, reasonably
be expected to (x) have a Parent Material Adverse Effect or (y) prevent or
materially delay the performance of this Agreement by Parent or Merger Sub.
(b) The execution and delivery of this Agreement by
Parent and Merger Sub do not, and the performance of this Agreement by
Parent and Merger Sub will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any domestic
or foreign Governmental Entity or any other person, except (i) under the
Exchange Act, the Securities Act, any applicable Blue Sky Law, the rules
and regulations of Nasdaq, the HSR Act, foreign or supranational antitrust
and competition Laws, and the filing and recordation of the Articles of
Merger as required by the WBCA and (ii) where failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications to a person other than a Governmental Entity, would not,
individually or in the aggregate, reasonably be expected to (x) have a
Parent Material Adverse Effect or (y) prevent or materially delay the
performance under this Agreement by Parent or Merger Sub.
Section 4.6 Permits; Compliance With Law. Parent and each
Parent Subsidiary is in possession of all authorizations, licenses,
permits, certificates, approvals and clearances necessary to carry on their
respective businesses in the manner described in the Parent SEC Filings
filed prior to the date hereof and as it is being conducted as of the date
hereof (the "Parent Permits"), and all such Parent Permits are valid and in
full force and effect, except where the failure to have, or the suspension
or cancellation of, or failure to be valid or in full force and effect of,
any of the Parent Permits would not, individually or in the aggregate,
reasonably be expected to have a Parent Material Adverse Effect. Neither
Parent nor any Parent Subsidiary is in conflict with any Law applicable to
Parent or any Parent Subsidiary that would, individually or in the
aggregate, reasonably be expected to have a Parent Material Adverse Effect.
Section 4.7 SEC Filings; Financial Statements.
(a) Parent has timely filed all registration statements,
prospectuses, forms, reports, definitive proxy statements, schedules and
documents required to be filed by it under the Securities Act or the
Exchange Act, as the case may be, since January 1, 1998 (collectively, the
"Parent SEC Filings"). Each Parent SEC Filing (i) as of its date, complied
in all material respects with the requirements of the Securities Act or the
Exchange Act, as the case may be and (ii) did not at the time it was filed
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which they
were made, not misleading. As of the date of this Agreement, no Subsidiary
of Parent is subject to the periodic reporting requirements of the Exchange
Act.
(b) Each of the consolidated financial statements
(including, in each case, any notes thereto) contained in the Parent SEC
Filings was prepared in all material respects in accordance with GAAP
applied (except as may be indicated in the notes thereto and, in the case
of unaudited quarterly financial statements, as permitted by Form 10-Q
under the Exchange Act) on a consistent basis throughout the periods
indicated (except as may be indicated in the notes thereto), and each
presented fairly the consolidated financial position, results of operations
and cash flows of Parent and its consolidated Subsidiaries as of the
respective dates thereof and for the respective periods indicated therein
(subject, in the case of unaudited statements, to normal and recurring
year-end adjustments which did not and would not, individually or in the
aggregate, reasonably be expected to have a Parent Material Adverse
Effect). The books and records of Parent and its Subsidiaries have been,
and are being, maintained in all material respects in accordance with GAAP
and any other applicable legal and accounting requirements.
(c) Except as and to the extent set forth on the
consolidated balance sheet of Parent and its consolidated Subsidiaries as
of December 31, 2000 included in Parent's Form 10-K for the year ended
December 31, 2000, including the notes thereto (the "Parent Form 10-K"),
neither Parent nor any of its consolidated Subsidiaries has any liabilities
or obligations of any nature (whether accrued, absolute, contingent or
otherwise) that would be required to be reflected on a balance sheet or in
notes thereto prepared in accordance with GAAP, except for liabilities or
obligations incurred in the ordinary course of business consistent with
past practice since December 31, 2000 and liabilities incurred in
connection with this Agreement and the transactions contemplated hereby
that would not, individually or in the aggregate, reasonably be expected to
have a Parent Material Adverse Effect.
(d) As of the date hereof, no "material contract" (as
such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) filed
as an exhibit to the Parent Form 10-K has been amended or modified, except
for such amendments or modifications which have been filed as an exhibit to
a subsequently dated Parent SEC Filing or are not required to be filed with
the SEC.
Section 4.8 Absence of Certain Changes or Events. Since
December 31, 2000, except as disclosed in the Parent Form 10-K or in Parent
SEC Filings since December 31, 2000 through to the date of this Agreement,
including the notes thereto, and except as specifically contemplated by, or
as disclosed in, this Agreement, Parent and its Subsidiaries have conducted
their business in the ordinary course consistent with past practice and,
since such date, there has not been (a) an event or development that would,
individually or in the aggregate, reasonably be expected to have a Parent
Material Adverse Effect or (b) any event or development that would,
individually or in the aggregate, reasonably be expected to prevent or
materially delay the performance of this Agreement by Parent or Merger Sub.
Section 4.9 Litigation. Except as disclosed in the Parent
SEC Filings, including the notes thereto, filed prior to the date of this
Agreement or would not, individually or in the aggregate, reasonably be
expected to have a Parent Material Adverse Effect, (i) there is no suit,
claim, action, proceeding or investigation pending or, to the Knowledge of
Parent, threatened in writing against Parent or any Parent Subsidiary or
for which Parent or any Parent Subsidiary is obligated to indemnify a third
party, and (ii) neither Parent nor any Parent Subsidiary is subject to any
outstanding and unsatisfied order, writ, injunction, decree or arbitration
ruling, award or other finding. There is no suit, claim, action, proceeding
or investigation pending or, to the Knowledge of Parent, threatened in
writing against Parent or any Parent Subsidiary that, as of the date
hereof, challenges the validity or propriety, or seeks to prevent
consummation of, the Merger or any other transaction contemplated by this
Agreement.
Section 4.10 Environmental Matters. Except as disclosed
in the Parent Form 10-K or in the Parent SEC Filings, including the notes
thereto, since December 31, 2000 through the date of this Agreement or
would not, individually or in the aggregate, reasonably be expected to have
a Parent Material Adverse Effect, Parent and the Parent Subsidiaries (i)
are in compliance with all, and are not subject to any liability, in each
case with respect to any, applicable Environmental Laws, (ii) hold or have
applied for all Environmental Permits necessary to conduct their current
operations, and (iii) are in compliance with their respective Environmental
Permits.
Section 4.11 Intellectual Property. Except as disclosed
in the Parent Form 10-K or in the Parent SEC Filings, including the notes
thereto, since December 31, 2000 through the date of this Agreement or
would not, individually or in the aggregate, reasonably be expected to have
a Parent Material Adverse Effect: (i) Parent and its Subsidiaries own or
have the right to use, whether through ownership, licensing or otherwise,
all Parent Intellectual Property, (ii) no Parent Intellectual Property is
the subject of any pending or, to Parent's Knowledge, threatened action,
suit, claim, investigation, arbitration or other proceeding, (iii) there
exists no prior act or current conduct or use by Parent or any Parent
Subsidiary or, to the Knowledge of Parent, any third party that would void
or invalidate any Parent Intellectual Property, and (iv) to the Knowledge
of Parent, the making, using, selling, manufacturing, marketing, licensing,
reproduction, distribution or publishing by Parent of any process,
manufacture or product does not, because of and to the extent that such
process, manufacture or product incorporates Parent Intellectual Property,
infringe any valid claim of patent, trademark, service xxxx, trade name,
copyright or other intellectual property right of any third party in the
jurisdictions in which such making, using, selling, manufacturing,
marketing, licensing, reproduction, distribution, or publishing occurs, and
does not involve the misappropriation or improper use or disclosure of any
trade secrets, confidential information or know-how of any third party.
Section 4.12 Regulatory Compliance.
(a) All biological and drug products being manufactured,
distributed or developed by Parent and its Subsidiaries ("Parent
Pharmaceutical Products") that are subject to the jurisdiction of the FDA
are being manufactured, labeled, stored, tested, distributed and marketed
in compliance with all applicable requirements under the FDCA and the
Public Health Service Act, except for noncompliances which, individually or
in the aggregate, would reasonably not be expected to have a Parent
Material Adverse Effect.
(b) Neither Parent nor any of its Subsidiaries have
received any notice since January 1, 1999 that the FDA or any other
Governmental Entity has commenced, or threatened to initiate, any action to
withdraw approval or request the recall of any Parent Pharmaceutical
Product, or commenced, or threatened to initiate, any action to enjoin or
place restrictions on the production of any Parent Pharmaceutical Products.
Section 4.13 Tax Treatment. None of Parent, nor any of
its Subsidiaries or Affiliates has taken or agreed to take any action that
would prevent the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code. Parent is not aware of any
agreement, plan or other circumstance that would prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the
Code.
Section 4.14 Ownership of Merger Sub; No Prior
Activities.
(a) Merger Sub was formed solely for the purpose of
engaging in the transactions contemplated by this Agreement. All of the
outstanding capital stock of Merger Sub is owned directly by Parent.
(b) Except for obligations or liabilities incurred in
connection with its incorporation or organization and the transactions
contemplated by this Agreement, Merger Sub has not and will not have
incurred, directly or indirectly, through any Subsidiary or Affiliate, any
obligations or liabilities or engaged in any business activities of any
type or kind whatsoever or entered into any agreements or arrangements with
any person. Merger Sub has no Subsidiaries.
Section 4.15 Opinion of Financial Advisor. Xxxxxxx, Sachs
& Co. (the "Parent Financial Advisor") has delivered to the Board of
Directors of Parent its opinion that, as of the date of such opinion, the
Merger Consideration is fair from a financial point of view to Parent.
Section 4.16 Vote Required. The affirmative vote of the
holders of a majority of the shares of Parent Common Stock represented at a
meeting of the stockholders of Parent called for such purpose and entitled
to vote thereon (provided that at least a majority of such shares are
represented in person or by proxy at such meeting) is the only vote of the
holders of any class or series of capital stock or other Equity Interests
of Parent necessary to approve the Share Issuance (the "Parent Stockholder
Approval").
Section 4.17 Brokers. No broker, finder or investment
banker (other than the Parent Financial Advisor. Bear, Xxxxxxx & Co. Inc.
and Xxxxxxx Xxxxx Barney Inc.) is entitled to any brokerage, finder's or
other fee or commission in connection with the Merger based upon
arrangements made by or on behalf of Parent or any of its Subsidiaries.
Section 4.18 Sufficient Funds. Parent will have at or
prior to the Closing and at the Effective Time sufficient immediately
available funds and sufficient authorized but unissued shares or treasury
shares of Parent Common Stock to pay the Merger Consideration upon
consummation of the Merger.
ARTICLE 5.
COVENANTS
Section 5.1 Conduct of Business by the Company Pending
the Closing. The Company agrees that, between the date of this Agreement
and the Effective Time, except as set forth in Section 5.1 of the Company
Disclosure Letter or as specifically permitted by any other provision of
this Agreement, or unless Parent shall otherwise agree in writing, the
Company shall, and shall cause each Company Subsidiary to, (x) maintain its
existence in good standing under applicable Law, (y) subject to the
restrictions set forth in this Section 5.1 and Section 6.5, conduct its
operations only in the ordinary and usual course of business consistent
with past practice and (z) use its reasonable best efforts to keep
available the services of the current officers, key employees and
consultants of the Company and each Company Subsidiary and, subject to
Section 6.5, to preserve the current relationships of the Company and the
Company Subsidiaries with their customers, suppliers and other persons with
which the Company or any Company Subsidiary has significant business
relations as is reasonably necessary in order to preserve substantially
intact its business organization. In addition, without limiting the
foregoing, except as set forth in Section 5.1 of the Company Disclosure
Letter or as specifically permitted by any other provision of this
Agreement, the Company shall not and shall not permit any of its
Subsidiaries to (unless required by applicable Law or the regulations or
requirements of any stock exchange or regulatory organization applicable to
the Company and its Subsidiaries), between the date of this Agreement and
the Effective Time, directly or indirectly, do, or agree to do, any of the
following without the prior written consent of Parent:
(a) amend or otherwise change its articles or certificate
of incorporation or bylaws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, transfer,
encumber, or authorize the issuance, sale, pledge, disposition, grant,
transfer or encumbrance of any shares of capital stock of, or other Equity
Interests in, the Company or any Company Subsidiary of any class, or
securities convertible or exchangeable or exercisable for any shares of
such capital stock or other Equity Interests, or any options, warrants or
other rights of any kind to acquire any shares of such capital stock or
other Equity Interests or such convertible or exchangeable securities, or
any other ownership interest, of the Company or any Company Subsidiary,
except that (i) the Company may issue shares of Company Common Stock
pursuant to the ESPP or upon exercise of Company Options outstanding on the
date hereof or hereafter granted in accordance with the provisions of
subclause (ii), (iii) or (iv) of this clause (b), (ii) the Company may
grant Company Options up to an aggregate of 1,100,000 shares of Company
Common Stock to newly-hired employees and may grant Company Options up to
an aggregate of 4,400,000 shares of Company Common Stock to existing
employees and non-employee directors, in each case, in accordance with the
terms of the Company Stock Option Plans consistent with past practice and
with an exercise price per share of Company Common Stock no less than the
fair market value of a share of Company Common Stock as of the date of
grant, provided that in no event shall the vesting or exercisability of any
such Company Options accelerate solely as a result of the consummation of
the transactions contemplated by this Agreement, (iii) the Company may
grant Company Options that are Replacement Options pursuant to Section
2.4(b), (iv) the Company may grant Company Options pursuant to existing
contractual relationships and as set forth in the Company Disclosure
Letter, (v) the Company may grant Equity Interests in accordance with
Sections 2.01 and 2.02 of the Governance Agreement, and (vi) the Company
Subsidiaries may issue shares of capital stock or other Equity Interests to
the Company or any wholly-owned Company Subsidiary;
(c) (i) sell, pledge, dispose of, transfer, lease,
license, or encumber, or authorize the sale, pledge, disposition, transfer,
lease, license, or encumbrance of, any material property or assets (other
than Company Intellectual Property) of the Company or any Company
Subsidiary, except (A) sales, pledges, dispositions, transfers, leases,
licenses or encumbrances pursuant to existing Contracts, (B) sales,
pledges, dispositions, transfers, leases, licenses or encumbrances of
property or assets by the Company or a Company Subsidiary in the ordinary
course of business but not to exceed an aggregate value for all such sales,
pledges, dispositions, transfers, leases, licenses and encumbrances of
$100,000,000, (C) sales or dispositions of inventory and other tangible
current assets, or (D) as may be required pursuant to Section 6.5(b); (ii)
sell, pledge, dispose of, transfer, lease, license, abandon, fail to
maintain or encumber, or authorize the sale, pledge, disposition, transfer,
lease, license, abandonment, failure to maintain or encumbrance of, any
Company Intellectual Property (other than Company Intellectual Property
that protects or enhances the value of Enbrel), except (A) sales, pledges,
dispositions, transfers, leases, licenses, abandonments, failures to
maintain or encumbrances in the ordinary course of business which will not
materially impair the conduct of the Company's business and (B) as may be
required pursuant to Section 6.5(b); (iii) sell, pledge, dispose of,
transfer, lease, license, abandon, fail to maintain or encumber, or
authorize the sale, pledge, disposition, transfer, lease, license,
abandonment, failure to maintain or encumbrance of, any Company
Intellectual Property which protects Enbrel, except (A) agreements entered
into for clinical studies involving Enbrel in the ordinary course of
business and (B) material transfer agreements relating to Enbrel entered
into in the ordinary course of business; or (iv) enter into any material
commitment or transaction outside the ordinary course of business
consistent with past practice other than transactions between a
wholly-owned Company Subsidiary and the Company or another wholly-owned
Company Subsidiary;
(d) declare, set aside, make or pay any dividend or other
distribution (whether payable in cash, stock, property or a combination
thereof) with respect to any of the capital stock of the Company (other
than dividends or distributions paid by wholly-owned Company Subsidiaries
to the Company or to other wholly-owned Company Subsidiaries) or enter into
any agreement with respect to the voting of the capital stock of the
Company;
(e) (i) reclassify, combine, split or subdivide any of
its capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of, or in substitution for, shares of its
capital stock, or (ii) redeem, purchase or otherwise acquire, directly or
indirectly, any of its capital stock, other Equity Interests or other
securities;
(f) (i) incur any indebtedness for borrowed money or
issue any debt securities or assume, guarantee or endorse, or otherwise as
an accommodation become responsible for, the obligations of any person
(other than a wholly-owned Company Subsidiary) for borrowed money, except
for indebtedness for borrowed money under the Company's existing credit
facilities or replacement credit facilities in an aggregate amount not
materially larger than the Company's existing credit facilities, (ii)
terminate, cancel, or agree to any material and adverse change in, any
Company Material Contract other than in the ordinary course of business
consistent with past practice, (iii) make or authorize any capital
expenditure materially in excess of the Company's budget as disclosed to
Parent prior to the date hereof or (iv) make or authorize any material loan
to any person (other than a Company Subsidiary) outside the ordinary course
of business;
(g) except as may be required by contractual commitments
or corporate policies with respect to severance or termination pay in
existence on the date of this Agreement as disclosed in Section 3.9 or
6.10(c) of the Company Disclosure Letter, (i) increase the compensation or
benefits payable or to become payable to its directors, officers or
employees (except for increases in accordance with past practices and
methodologies in salaries or wages of officers and/or employees of the
Company or any Company Subsidiary), (ii) grant any rights to severance or
termination pay to, or enter into any employment or severance agreement
with, any director, officer or other employee of the Company or any Company
Subsidiary (other than with respect to newly appointed directors and newly
hired employees in accordance with past practices of the Company or any
Company Subsidiary, provided that any such agreements shall not provide for
the payment of any severance or termination pay solely as a result of the
execution of this Agreement or the consummation of the transactions
contemplated hereby), (iii) establish, adopt, enter into or amend any
collective bargaining, bonus, profit sharing, thrift, compensation, stock
option, restricted stock, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement, trust, fund,
policy or arrangement for the benefit of any director, officer, consultant
or employee, except to the extent required by applicable Law or (iv) take
any affirmative action to amend or waive any performance or vesting
criteria or accelerate vesting, exercisability or funding under any Company
Benefit Plan or Company Option;
(h) make any material change in accounting policies or
procedures, other than in the ordinary course of business consistent with
past practice or except as required by GAAP or by a Governmental Entity;
(i) except in the ordinary course of business consistent
with past practice, make any material Tax election or settle or compromise
any material liability for Taxes, change any annual Tax accounting period,
change any method of Tax accounting, file any amended material Tax Return,
enter into any closing agreement relating to any material Tax, surrender
any right to claim a material Tax refund, or consent to any extension or
waiver of the statute of limitations period applicable to any material Tax
claim or assessment;
(j) subject to Section 6.4(h), modify, amend or
terminate, or waive, release or assign any material rights or claims with
respect to any confidentiality or standstill agreement to which the Company
is a party and which relates to a business combination involving the
Company;
(k) write up, write down or write off the book value of
any assets, individually or in the aggregate, for the Company and the
Company Subsidiaries taken as a whole, other than in the ordinary course of
business or otherwise not in excess of $50 million;
(l) subject to Section 6.4(h), take any action to render
inapplicable, or to exempt any third party from, (i) the provisions of
Chapter 23B.19 of the WBCA or (ii) any other state takeover Law or state
Law that purports to limit or restrict business combinations or the ability
to acquire or vote shares;
(m) acquire, or agree to acquire, from any Person any
assets (not including Intellectual Property), operations, business or
securities or engage in, or agree to engage in, any merger, consolidation
or other business combination with any Person, except (i) in connection
with capital expenditures permitted hereunder and except for acquisitions
of inventory and other assets (not including Intellectual Property) in the
ordinary course of business or (ii) for acquisitions of businesses or
assets (not including Intellectual Property) or business combinations
having or involving aggregate consideration not in excess of $50,000,000,
which, in the case of clauses (i) and (ii), individually or in the
aggregate, would not be reasonably expected to result in any of the
conditions to the Merger set forth in Article 7 not being satisfied;
(n) take any action that is intended or would reasonably
be expected to result in any of the conditions to the Merger set forth in
Article 7 not being satisfied;
(o) adopt a shareholder rights agreement, or "poison
pill";
(p) acquire, or agree to acquire, from any Person, any
Intellectual Property, except in the ordinary course of business consistent
with past practice (including in size and nature); or
(q) authorize or enter into any agreement or otherwise
make any commitment to do any of the foregoing.
Section 5.2 Conduct of Business by Parent Pending the
Closing. Parent agrees that, between the date of this Agreement and the
Effective Time, except as specifically permitted by any other provision of
this Agreement or unless the Company shall otherwise agree in writing,
Parent shall maintain its existence in good standing under applicable Law
and Parent and its Subsidiaries shall continue to conduct their businesses
such that the primary business of Parent and its Subsidiaries, taken as a
whole, shall involve biotechnology or pharmaceuticals. Without limiting the
foregoing, and as an extension thereof, except as specifically permitted by
any other provision of this Agreement, Parent shall not and shall not
permit any of its Subsidiaries to (unless required by applicable Laws or
the regulations or requirements of any stock exchange or regulatory
organization applicable to Parent and its Subsidiaries), between the date
of this Agreement and the Effective Time, directly or indirectly, do, or
agree to do, any of the following, without the prior written consent of the
Company:
(a) amend or otherwise change the Parent Certificate in a
manner that adversely affects the rights of holders of Parent Common Stock
(including holders of the Parent Common Stock issuable in the Merger),
except to increase the authorized number of shares of Parent capital stock
(including Parent Common Stock);
(b) issue any shares of Parent Common Stock if, following
such issuance, there would be an insufficient number of shares of Parent
Common Stock to pay the Merger Consideration and to be reserved for
issuance in connection with the transactions contemplated hereby;
(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock property or otherwise, with respect to
any of Parent's capital stock;
(d) take any action (including any acquisition or
entering into any business combination) that is intended or could
reasonably be expected to result in any of the conditions to the Merger set
forth in Article 7 not being satisfied; or
(e) authorize or enter into any agreement or otherwise
make any commitment to do any of the foregoing.
Section 5.3 Cooperation.
(a) In addition to their other obligations set forth in
this Agreement, the Company and Parent shall coordinate and cooperate in
connection with (a) the preparation of the Registration Statement and the
Proxy Statement, (b) determining whether any action by or in respect of, or
filing with, any Governmental Entity is required, or any actions, consents,
approvals or waivers are required to be obtained from parties to any
Company Material Contracts, in connection with the consummation of the
Merger, and (c) seeking any such actions, consents, approvals or waivers or
making any such filings, furnishing information required in connection
therewith or with the Registration Statement and the Proxy Statement.
(b) As soon as reasonably practicable after the date
hereof, Parent and Company shall establish an Integration Committee with a
consultative function, which shall be comprised of two senior executives of
Parent, designated by the Chairman, President and Chief Executive Officer
of the Parent, and two senior executives of the Company, designated by the
Chairman, President and Chief Executive Officer of the Company. Subject to
applicable Law, the Integration Committee will be concerned with matters
relating to the integration of Parent's and Company's respective businesses
and personnel following the Effective Time and will periodically meet to
discuss and review such matters.
Section 5.4 Tax-Free Reorganization Treatment.
(a) Neither Company nor Parent shall, nor shall they
permit any of their respective Subsidiaries to, take or cause to be taken
any action that would disqualify the Merger as a reorganization within the
meaning of Section 368(a) of the Code. Parent and the Company shall use
their reasonable best efforts, and shall cause their respective
Subsidiaries to use their reasonable best efforts, to take or cause to be
taken any action that would cause the Merger to qualify as a reorganization
within the meaning of Section 368(a) of the Code.
(b) Each of the Company and Parent shall report the
Merger as a reorganization within the meaning of Section 368 of the Code,
unless otherwise required pursuant to a "determination" within the meaning
of Section 1313(a) of the Code.
Section 5.5 Control of Other Party's Business. Nothing
contained in this Agreement shall give Parent or Merger Sub, directly or
indirectly, the right to control or direct the operations of the Company
prior to the consummation of the Merger. Prior to the consummation of the
Merger, the Company shall exercise, consistent with the terms and
conditions of this Agreement, complete control and supervision over its
operations.
ARTICLE 6.
ADDITIONAL AGREEMENTS
Section 6.1 Registration Statement; Proxy Statement.
(a) As promptly as practicable after the execution of
this Agreement, Parent and the Company shall prepare and file with the SEC
a joint proxy statement relating to the Company Shareholders' Meeting and
Parent Stockholders' Meeting (together with any amendments thereof or
supplements thereto, the "Proxy Statement") and Parent shall prepare and
file with the SEC a registration statement on Form S-4 (together with all
amendments thereto, the "Registration Statement"; the prospectus contained
in the Registration Statement together with the Proxy Statement, the "Joint
Proxy/Prospectus"), in which the Proxy Statement shall be included, in
connection with the registration under the Securities Act of the shares of
Parent Common Stock to be issued to the shareholders of the Company as
Merger Consideration. Each of Parent and the Company shall use reasonable
best efforts to cause the Registration Statement to become effective as
promptly as practicable, and, prior to the effective date of the
Registration Statement, Parent shall take all or any action reasonably
required under any applicable federal or state securities Laws in
connection with the issuance of shares of Parent Common Stock in the
Merger. Each of Parent and the Company shall furnish all information
concerning it and the holders of its capital stock as the other may
reasonably request in connection with such actions and the preparation of
the Registration Statement and Proxy Statement. As promptly as reasonably
practicable after the Registration Statement shall have become effective
and the Proxy Statement shall have been cleared by the SEC, the Company and
Parent shall mail the Joint Proxy/Prospectus to their respective
shareholders; provided, however, that the parties shall consult and
cooperate with each other in determining the appropriate time for mailing
the Joint Proxy/Prospectus in light of the date set for the Company
Shareholders' Meeting and the Parent Stockholders' Meeting. No filing of,
or amendment or supplement to, the Proxy Statement shall be made by the
Company or Parent, and no filing of, or amendment or supplement to, the
Registration Statement shall be made by Parent, in each case, without
providing the other party a reasonable opportunity to review and comment
thereon, which comments shall be considered in good faith. Parent and the
Company each shall advise the other, promptly after it receives notice
thereof, of the time when the Registration Statement has become effective
or any supplement or amendment has been filed, of the issuance of any stop
order, the suspension of the qualification of the Parent Common Stock
issuable in connection with the Merger for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Proxy
Statement or the Registration Statement or comments thereon and responses
thereto or requests by the SEC for additional information.
(b) The information supplied by Parent for inclusion in
the Registration Statement and the Proxy Statement shall not, at (i) the
time the Registration Statement is declared effective, (ii) the time the
Proxy Statement (or any amendment thereof or supplement thereto) is first
mailed to the shareholders of the Company, (iii) the time the Proxy
Statement (or any amendment thereof or supplement thereto) is first mailed
to stockholders of Parent, (iv) the time of the Company Shareholders'
Meeting and (v) the time of the Parent Stockholders' Meeting, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading. If at any time prior to the Effective Time any
event or circumstance relating to Parent or any of its Subsidiaries, or
their respective officers or directors, should be discovered by Parent
which should be set forth in an amendment or a supplement to the
Registration Statement or Proxy Statement, Parent shall promptly inform the
Company. All documents that Parent is responsible for filing with the SEC
in connection with the transactions contemplated herein will comply as to
form and substance in all material respects with the applicable
requirements of the Securities Act and the rules and regulations thereunder
and the Exchange Act and the rules and regulations thereunder.
(c) The information supplied by the Company for inclusion
in the Registration Statement and the Proxy Statement shall not, at (i) the
time the Registration Statement is declared effective, (ii) the time the
Proxy Statement (or any amendment thereof or supplement thereto) is first
mailed to the shareholders of the Company, (iii) the time the Proxy
Statement (or any amendment thereof or supplement thereto) is first mailed
to stockholders of Parent, (iv) the time of the Company Shareholders'
Meeting and (v) the time of the Parent Stockholders' Meeting, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading. If at any time prior to the Effective Time any
event or circumstance relating to the Company or any Company Subsidiary, or
their respective officers or directors, should be discovered by the Company
which should be set forth in an amendment or a supplement to the
Registration Statement or Proxy Statement, the Company shall promptly
inform Parent. All documents that the Company is responsible for filing
with the SEC in connection with the transactions contemplated herein will
comply as to form and substance in all material respects with the
applicable requirements of the Securities Act and the rules and regulations
thereunder and the Exchange Act and the rules and regulations thereunder.
Section 6.2 Shareholders' Meetings.
(a) The Company shall duly call and hold a meeting of its
shareholders (the "Company Shareholders' Meeting") as promptly as
reasonably practicable in accordance with applicable Law following the date
the Registration Statement becomes effective and the Proxy Statement is
cleared by the SEC and after coordination with Parent, provided that the
meeting shall be held not later than five Business Days prior to the
Outside Date (provided that the Company shall not be required to hold the
Company Shareholders' Meeting prior to the date of the Parent Stockholders'
Meeting), for the purpose of voting upon the adoption and approval of this
Agreement. In connection with the Company Shareholders' Meeting and the
transactions contemplated hereby, the Company will (i) subject to
applicable Law, use its reasonable best efforts (including postponing or
adjourning the Company Shareholders' Meeting to obtain a quorum or to
solicit additional proxies) to obtain the necessary approvals by its
shareholders of this Agreement, the Merger and the other transactions
contemplated hereby and (ii) otherwise comply with all legal requirements
applicable to the Company Shareholders' Meeting.
(b) Parent shall duly call and hold a meeting of its
stockholders (the "Parent Stockholders' Meeting") as promptly as reasonably
practicable in accordance with applicable Law following the date the
Registration Statement becomes effective and the Proxy Statement is cleared
by the SEC and after coordination with the Company, provided that the
meeting shall be held not later than five Business Days prior to the
Outside Date (provided that the Parent shall not be required to hold the
Parent Stockholders' Meeting prior to the date of the Company Shareholders'
Meeting), for the purpose of voting upon the approval of the Share
Issuance, and Parent shall use its reasonable best efforts to hold the
Parent Stockholders' Meeting as soon as practicable after the date on which
the Registration Statement becomes effective. In connection with the Parent
Stockholders' Meeting and the transactions contemplated hereby, Parent will
(i) subject to applicable Law, use its reasonable best efforts (including
postponing or adjourning Parent Stockholders' Meeting to obtain a quorum or
to solicit additional proxies) to obtain the necessary approvals by its
stockholders of the Share Issuance and (ii) otherwise comply with all legal
requirements applicable to the Parent Stockholders' Meeting.
(c) The Board of Directors of the Company shall recommend
approval of this Agreement and the Merger by the shareholders of the
Company (the "Company Recommendation") and, subject to Section 6.4, shall
not withdraw or adversely modify (or propose to withdraw or adversely
modify) such recommendation, and the Joint Proxy Statement/Prospectus shall
contain such recommendation.
(d) The Board of Directors of Parent shall recommend the
approval of the Share Issuance by the stockholders of Parent (the "Parent
Recommendation") and shall not withdraw or adversely modify (or propose to
withdraw or adversely modify) such recommendation, and the Joint Proxy
Statement/Prospectus shall contain such recommendation.
Section 6.3 Access to Information; Confidentiality.
(a) Except as required pursuant to any confidentiality
agreement or similar agreement or arrangement to which the Company or
Parent or any of their respective Subsidiaries is a party (which such
person shall use reasonable best efforts to cause the counterparty to
waive) from the date of this Agreement to the Effective Time, the Company
and Parent shall, and shall cause each of its Subsidiaries and each of
their respective directors, officers, employees, accountants, consultants,
legal counsel, investment bankers, advisors, and agents and other
representatives (collectively, "Representatives") to (i) provide to the
other party and its respective Representatives access at reasonable times
upon prior notice to the officers, employees, agents, properties, offices
and other facilities of such party and its Subsidiaries and to the books
and records thereof and (ii) subject to applicable Laws relating to the
exchange of information, furnish promptly such information concerning the
business, properties, Contracts, assets, liabilities, personnel and other
aspects of itself and its Subsidiaries as the other party and its
Representatives may reasonably request. No investigation conducted pursuant
to this Section 6.3(a) shall affect or be deemed to modify or limit any
representation or warranty made in this Agreement.
(b) With respect to the information disclosed pursuant to
this Section 6.3, the parties shall comply with, and shall cause their
respective Representatives to comply with, all of their respective
obligations under the confidentiality agreement, dated November 14, 2001,
previously executed by the Company and Parent (the "Confidentiality
Agreement"); provided, however, that the restrictions on Parent and its
Subsidiaries, Affiliates and Representatives set forth in paragraph 8 of
the Confidentiality Agreement shall be inapplicable with respect to any of
the transactions set forth in this Agreement.
Section 6.4 No Solicitation of Transactions.
(a) The Company agrees that neither it nor any Company
Subsidiary shall, and that it shall use its reasonable best efforts to
cause its and their Representatives not to, directly or indirectly: (i)
solicit, initiate, encourage, knowingly facilitate or induce any inquiry
with respect to, or the making, submission or announcement of, any
Acquisition Proposal, (ii) participate in any discussions or negotiations
regarding, or furnish to any person any nonpublic information with respect
to, or take any other action to facilitate any inquiries or the making of
any proposal that constitutes or may reasonably be expected to lead to, any
Acquisition Proposal (except to the extent specifically permitted pursuant
to this Section 6.4), (iii) engage in discussions with any person with
respect to any Acquisition Proposal, except to notify such person as to the
existence of these provisions (except to the extent specifically permitted
pursuant to this Section 6.4), (iv) approve, endorse or recommend any
Acquisition Proposal with respect the Company (except to the extent
specifically permitted pursuant to this Section 6.4), or (v) enter into any
letter of intent or similar document or any agreement, commitment or
understanding contemplating or otherwise relating to any Acquisition
Proposal or a transaction contemplated thereby (except for confidentiality
agreements specifically permitted pursuant to Section 6.4(c)). The Company
shall immediately terminate, and shall cause the Company Subsidiaries and
its and their Representatives to immediately terminate, all discussions or
negotiations, if any, with any third party with respect to, or any that
could reasonably be expected to lead to or contemplate the possibility of,
an Acquisition Proposal. The Company shall immediately demand that each
person which has heretofore executed a confidentiality agreement with the
Company or any of its Affiliates or Subsidiaries or any of its or their
Representatives with respect to such person's consideration of a possible
Acquisition Proposal to immediately return or destroy (which destruction
shall be certified in writing by such person to the Company) all
confidential information heretofore furnished by the Company or any of its
Affiliates or Subsidiaries or any of its or their Representatives to such
person or any of its Affiliates or Subsidiaries or any of its or their
Representatives.
(b) 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, the Company 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, the Company 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 and shall promptly provide to Parent a copy of all written
materials subsequently provided in connection with such Acquisition
Proposal, request or inquiry.
(c) If the Company receives an Acquisition Proposal which
(i) constitutes a Superior Proposal or (ii) which the Board of Directors of
the Company in good faith concludes proposes consideration that is more
favorable to the Company's shareholders than the transactions contemplated
by this Agreement and which could reasonably be expected to result in a
Superior Proposal in all other respects, the Company shall promptly provide
to Parent written notice that shall state expressly (A) that it has
received an Acquisition Proposal which constitutes a Superior Proposal or
which could reasonably be expected to result in a Superior Proposal, and
(B) the identity of the party making such Acquisition Proposal and the
material terms and conditions of the Acquisition Proposal (the "Superior
Proposal Notice") and may then take the following actions:
(i) furnish nonpublic information to the third party
making such Acquisition Proposal, provided, that (A) prior to so
furnishing, the Company receives from the third party an executed
confidentiality agreement containing customary limitations on the use and
disclosure of all nonpublic written and oral information furnished to such
third party on its behalf and customary standstill provisions, and (B)
contemporaneously with furnishing any such nonpublic information to such
third party, the Company furnishes a copy of such nonpublic information to
Parent (to the extent such nonpublic information has not been previously so
furnished); and
(ii) engage in negotiations with the third party with
respect to the Acquisition Proposal.
(d) For a period of not less than five Business Days
after Parent's receipt from the Company of each Superior Proposal Notice,
the Company shall, if requested by Parent, negotiate in good faith with
Parent to revise this Agreement so that the Acquisition Proposal that
constituted a Superior Proposal no longer constitutes a Superior Proposal.
(e) In response to the receipt of a Superior Proposal
that has not been withdrawn and continues to constitute a Superior Proposal
after the Company's compliance with Section 6.4(d), the Board of Directors
of the Company may withhold or withdraw the Company Recommendation and, in
the case of a Superior Proposal that is a tender or exchange offer made
directly to its shareholders, may recommend that its shareholders accept
the tender or exchange offer (any of the foregoing actions, whether by the
Board of Directors or a committee thereof, a "Change of Recommendation"),
if both of the following conditions in Sections 6.4(e)(i) and 6.4(e)(ii)
are met:
(i) the Company Shareholders' Meeting has not occurred;
and
(ii) the Board of Directors of the Company has concluded
in good faith, following the receipt of advice of its outside legal
counsel, that, in light of such Superior Proposal, the failure of the Board
of Directors to effect a Change of Recommendation would result in a breach
of its fiduciary obligations to its shareholders under applicable Law.
(f) Notwithstanding anything to the contrary contained in
this Agreement, (i) the obligation of the Company to call, give notice of,
convene and hold the Company Shareholders' Meeting and to hold a vote of
the Company's shareholders on this Agreement and the Merger at the Company
Shareholders' Meeting shall not be limited or otherwise affected by the
commencement, disclosure, announcement or submission to it of any
Acquisition Proposal (whether or not a Superior Proposal), or by any Change
of Recommendation and (ii) in any case in which the Company withholds or
withdraws the Company Recommendation pursuant to Section 6.4(e),
recognizing that special circumstances, as provided in Section 23B.11.030
of the WBCA, exist in light of the provisions of this Section 6.4 and/or
the provisions of the Voting Agreement, the Company shall submit this
Agreement and the Merger to a vote of its shareholders with no
recommendation as permitted by Section 23B.11.030(2) of the WBCA. The
Company agrees that it shall not submit to the vote of its shareholders any
Acquisition Proposal (whether or not a Superior Proposal) or propose to do
so.
(g) Nothing contained in this Agreement shall be deemed
to restrict the Company from complying with Rules 14d-9 or 14e-2 under the
Exchange Act or be deemed to restrict the Company or Parent from making
such other disclosures as may be required by federal securities laws or
applicable State of Washington fiduciary duties laws.
(h) Notwithstanding anything to the contrary contained in
this Agreement, the prohibitions contained in Sections 5.l(j) and 5.1(l)
shall not be applicable with respect to a Person who has submitted a
Superior Proposal to the Company.
Section 6.5 Appropriate Action; Consents; Filings.
(a) Subject to the proviso contained in Section
6.5(b)(ii), the Company and Parent shall use their reasonable best efforts
to (i) take, or cause to be taken, all appropriate action, and do, or cause
to be done, all things necessary, proper or advisable under applicable Law
or otherwise to consummate and make effective the transactions contemplated
by this Agreement as promptly as practicable, (ii) obtain from any
Governmental Entities any consents, licenses, permits, waivers, approvals,
authorizations or orders required (A) to be obtained or made by Parent or
the Company or any of their Subsidiaries, (B) to avoid any action or
proceeding by any Governmental Entity (including, without limitation, those
in connection with the HSR Act and antitrust and competition Laws of any
other applicable jurisdiction), in connection with the authorization,
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein, including, without limitation, the
Merger, and (C) to prevent a Company Material Adverse Effect from occurring
prior to or after the Effective Time or a Parent Material Adverse Effect
from occurring after the Effective Time, and (iii) make all necessary
filings, and thereafter make any other required submissions, with respect
to this Agreement and the Merger required under (A) the Securities Act and
the Exchange Act, and any other applicable federal or state securities
Laws, (B) the HSR Act and antitrust and competition Laws of any other
applicable jurisdiction and (C) any other applicable Law. Parent and the
Company shall cooperate with each other in connection with the making of
all filings referenced in the preceding sentence, including providing
copies of all such documents to the non-filing party and its advisors prior
to filing and, if requested, to accept all reasonable additions, deletions
or changes suggested in connection therewith. The Company and Parent shall
have the right to review in advance, and to the extent practicable each
shall consult the other on, all the information relating to the Company and
the Company Subsidiaries or Parent and its Subsidiaries, as the case may
be, that appears in any filing made with, or written materials submitted
to, any third party and/or any Governmental Entity in connection with the
Merger and the other transactions contemplated by this Agreement. Parent
and the Company may, as each deems reasonably advisable and necessary,
designate any competitively sensitive information provided to the other
under this Section 6.5(a) as "outside counsel only." Such information shall
be given only to outside counsel of the recipient. In addition, Parent and
the Company may redact any information from such documents shared with the
other party or its counsel that is not pertinent to the subject matter of
the filing or submission.
(b) Without limiting Section 6.5(a), Parent and the
Company shall:
(i) each use its reasonable best efforts to avoid the
entry of, or to have vacated or terminated, any decree, order, or judgment
that would restrain, prevent or delay the Closing, on or before the Outside
Date, including defending through litigation on the merits any claim
asserted in any court by any person; and
(ii) each use its reasonable best efforts to avoid or
eliminate each and every impediment under any antitrust, competition or
trade regulation Law that may be asserted by any Governmental Entity with
respect to the Merger so as to enable the Closing to occur as soon as
reasonably possible (and in any event no later than the Outside Date),
including implementing, contesting or resisting any litigation before any
court or quasi-judicial administrative tribunal seeking to restrain or
enjoin the Merger; provided, however, that nothing in this Agreement shall
require any of Parent and its Subsidiaries or the Company and its
Subsidiaries to commit to any divestitures, licenses or hold separate or
similar arrangements with respect to its assets or conduct of business
arrangements, whether as a condition to obtaining any approval from a
Governmental Entity or any other person or for any other reason, if, in any
such case, such divestiture, license, holding separate or arrangement (x)
is not conditioned upon the consummation of the Merger or (y) would,
individually or in the aggregate, have a Parent Material Adverse Effect
(including, for purposes of this clause, the Surviving Corporation and its
Subsidiaries) after giving effect to the Merger.
(c) Subject to the proviso contained in Section
6.5(b)(ii) and the proviso contained in the following sentence of this
Section 6.5(c), the Company and Parent shall give (or shall cause their
respective Subsidiaries to give) any notices to third parties, and use, and
cause their respective Subsidiaries to use, reasonable best efforts to
obtain any non-governmental third party consents, (i) necessary, proper or
advisable to consummate the transactions contemplated in this Agreement,
(ii) required to be disclosed in the Company Disclosure Letter or the
Parent Disclosure Letter, as applicable, or (iii) required to prevent a
Company Material Adverse Effect from occurring prior to or after the
Effective Time or a Parent Material Adverse Effect from occurring after the
Effective Time. In the event that either party shall fail to obtain any
third party consent described in the first sentence of this Section 6.5(c),
such party shall use reasonable best efforts, and shall take any such
actions reasonably requested by the other party hereto, to minimize any
adverse effect upon the Company and Parent, their respective Subsidiaries,
and their respective businesses resulting, or which could reasonably be
expected to result after the Effective Time, from the failure to obtain
such consent; provided that no obligation to make a material payment or
grant a material right not conditioned upon the consummation of the Merger
shall be imposed by this Section 6.5(c).
(d) From the date of this Agreement until the Effective
Time, each party shall promptly notify the other party in writing of any
pending or, to the Knowledge of the Company or Parent, as appropriate,
threatened action, suit, arbitration or other proceeding or investigation
by any Governmental Entity or any other person (i) challenging or seeking
damages in connection with the Merger or the conversion of Company Common
Stock into Parent Common Stock pursuant to the Merger or (ii) seeking to
restrain or prohibit the consummation of the Merger or otherwise limit the
right of Parent or its Subsidiaries to own or operate all or any portion of
the businesses or assets of the Company or its Subsidiaries.
Section 6.6 Certain Notices. From and after the date of
this Agreement until the Effective Time, each party hereto shall promptly
notify the other party hereto of (a) the occurrence, or non-occurrence, of
any event that would be likely to cause any condition to the obligations of
any party to effect the Merger and the other transactions contemplated by
this Agreement not to be satisfied or (b) the failure of the Company or
Parent, as the case may be, to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it pursuant to
this Agreement which would reasonably be expected to result in any
condition to the obligations of any party to effect the Merger and the
other transactions contemplated by this Agreement not to be satisfied;
provided, however, that the delivery of any notice pursuant to this Section
6.6 shall not cure any breach of any representation or warranty, the
failure to comply with any covenant, the failure to meet any condition or
otherwise limit or affect the remedies available hereunder to the party
receiving such notice.
Section 6.7 Public Announcements. Parent and the Company
will consult with each other before issuing, and provide each other the
opportunity to review and make reasonable comment upon, any press release
or making any public statement with respect to this Agreement and the
transactions contemplated hereby and, except as may be required by
applicable Law or any listing agreement with Nasdaq, will not issue any
such press release or make any such public statement prior to such
consultation; provided, however, that each of Parent and the Company may
make any public statement in response to specific questions by the press,
analysts, investors or those attending industry conferences or financial
analyst conference calls, so long as any such statements are not
inconsistent with previous press releases, public disclosures or public
statements made jointly by Parent and the Company and do not reveal
non-public information regarding the other party.
Section 6.8 Nasdaq Listing. Parent shall use reasonable
best efforts (a) to cause the Parent Common Stock to be issued in the
Merger to be approved for listing upon the Effective Time on Nasdaq or on
such national securities exchange as the Parent Common Stock is listed and
(b) to cause the Parent Common Stock issued upon the exercise of converted
Company Options to be approved for listing on Nasdaq or on such national
securities exchange as Parent Common Stock is listed.
Section 6.9 Employee Benefit Matters.
(a) For a period of at least two years following the
Effective Time, Parent shall provide employee benefits (excluding any
benefits attributable to equity based plans or grants) to the employees and
former employees of the Company and their respective Subsidiaries ("New
Parent Employees") that are no less favorable in the aggregate than those
provided to such persons in effect on the date hereof. Nothing herein shall
require Parent to continue any particular Company Benefit Plan or prevent
the amendment or termination thereof (subject to the maintenance, in the
aggregate, of the benefits as provided in the preceding sentence);
provided, however, that Parent shall not take any action (by way of
amendment, termination or otherwise) which is in violation of the terms of
any Company Benefit Plan or applicable Law.
(b) With respect to each benefit plan of Parent ("Parent
Benefit Plan") in which New Parent Employees subsequently participate, for
purposes of determining vesting and entitlement to benefits, including for
severance benefits and vacation entitlement (but not for accrual of pension
benefits), service with the Company (or predecessor employers to the extent
the Company provides past service credit) shall be treated as service with
Parent; provided, that such service shall not be recognized to the extent
that such recognition would result in a duplication of benefits or to the
extent that such service was not recognized under the applicable Company
Benefit Plan. Such service also shall apply for purposes of satisfying any
waiting periods, evidence of insurability requirements, or the application
of any pre-existing condition limitations. Each Parent Benefit Plan shall
waive pre-existing condition limitations to the same extent waived under
the applicable Company Benefit Plan. New Parent Employees shall be given
credit for amounts paid under a corresponding benefit plan during the same
period for purposes of applying deductibles, co-payments and out-of-pocket
maximums as though such amounts had been paid in accordance with the terms
and conditions of the Parent Benefit Plan for the plan year in which the
Effective Time occurs.
(c) At the request of Parent, the Company shall terminate
any and all 401(k) plans of the Company, effective not later than the day
immediately preceding the Closing Date. In the event that Parent requests
that such 401(k) plan(s) be terminated, the Company shall provide Parent
with evidence that such 401(k) plan(s) have been terminated pursuant to
resolution of Company's Board of Directors (the form and substance of which
shall be subject to review and approval by Parent) not later than the day
immediately preceding the Closing Date.
Section 6.10 Indemnification of Directors and Officers.
(a) Parent shall, and shall cause the Surviving
Corporation to, indemnify and hold harmless, and provide advancement of
expenses to, all past and present directors, officers and employees of the
Company or any of its Subsidiaries to the fullest extent permitted by Law
for acts or omissions occurring at or prior to the Effective Time
(including for acts or omissions occurring in connection with the approval
of this Agreement and the consummation of the transactions contemplated
hereby) in their capacities as such.
(b) For six years from the Effective Time, Parent shall,
or shall cause the Surviving Corporation to, cause to be maintained in
effect for the benefit of the Company's current directors and officers an
insurance and indemnification policy that provides coverage for acts or
omissions occurring prior to the Effective Time (the "D&O Insurance")
covering each such person currently covered by the officers' and directors'
liability insurance policies of the Company on terms with respect to
coverage and in amounts no less favorable than those of the Company's
policies in effect on the date hereof; provided, however, that the
Surviving Corporation shall not be required to pay an annual premium for
the D&O Insurance in excess of 200% of the estimated premium for the 2002
fiscal year, which premium the Company presently expects to be
approximately $1,850,000.
(c) Parent shall, and shall cause the Surviving
Corporation to, cause to be maintained in effect in the Surviving
Corporation's (or any successor's) Articles of Incorporation and Bylaws
provisions with respect to indemnification and advancement of expenses that
are at least as favorable to the intended beneficiaries as those contained
in the Company Articles and the Company Bylaws as in effect on the date
hereof.
(d) Parent agrees to honor (and hereby guarantees the
Surviving Corporation's performance under) all indemnification agreements
entered into by the Company or any Company Subsidiary. In the event that
Parent or the Surviving Corporation or any of their respective successors
or assigns (i) consolidates with or merges into any other person and is not
the continuing or surviving corporation or entity of such consolidation or
merger or (ii) transfers or conveys all or substantially all its properties
and assets to any person, then, and in each such case, Parent shall cause
proper provisions to be made so that the successors and assigns of the
Parent or the Surviving Corporation, as the case may be, assume the
obligations set forth in this Section 6.10. The obligations of Parent and
the Surviving Corporation under this Section 6.10 shall not be terminated
or modified in such a manner as to adversely affect any indemnitee to whom
this Section 6.10 applies without the express written consent of such
affected indemnitee (it being expressly agreed that the indemnitees to whom
this Section 6.10 applies shall be third party beneficiaries of this
Section 6.10).
Section 6.11 Plan of Reorganization. This Agreement is
intended to constitute a "plan of reorganization" within the meaning of
Treasury Regulation Section 1.368-2(g).
Section 6.12 Affiliate Letters. The Company shall,
promptly after the date hereof and prior to the mailing of the Joint
Proxy/Prospectus, deliver to Parent a list setting forth the names of all
persons the Company expects to be, at the time of the Company Shareholders'
Meeting, "affiliates" of the Company for purposes of Rule 145 under the
Securities Act. The Company shall furnish such information and documents as
Parent may reasonably request for the purpose of reviewing the list. The
Company shall use reasonable best efforts to cause each person who is
identified as an affiliate in the list furnished or supplemented pursuant
to this Section 6.12 to execute a written agreement, promptly following the
date hereof, in substantially the form of Exhibit 6.12 hereto.
Section 6.13 Section 16 Matters. Prior to the Effective
Time: (a) the Board of Directors of Parent, or an appropriate committee of
non-employee directors thereof, shall adopt a resolution consistent with
the interpretive guidance of the SEC so that the acquisition by any officer
or director of the Company who may become a covered person of Parent for
purposes of Section 16 of the Exchange Act (together with the rules and
regulations thereunder, "Section 16"), of shares of Parent Common Stock or
options to purchase shares of Parent Common Stock pursuant to this
Agreement and the Merger shall be an exempt transaction for purposes of
Section 16; and (b) the Board of Directors of the Company or an appropriate
committee of non-employee directors thereof, shall adopt a resolution
consistent with the interpretive guidance of the SEC so that the
disposition by any officer or director of the Company who is a covered
person of the Company for purposes of Section 16 of shares of Company
Common Stock or Company Options pursuant to this Agreement and the Merger
shall be an exempt transaction for purposes of Section 16.
Section 6.14 Stock Award Matters.
(a) The Company shall, and shall cause the
administrator(s) of each of the Company Stock Option Plans and the ESPP to,
take any and all actions necessary (under the applicable Company Stock
Option Plan and otherwise) to (i) cause the Company Options to be treated
in accordance with Section 2.4 hereof, including, without limitation,
amending the Company Stock Option Plans and, if necessary or desirable,
obtaining the consent of the optionholders to such treatment; and (ii)
cause the stock purchase rights outstanding under the ESPP to be assumed
and converted into rights to purchase Parent Common Stock pursuant to
Section 2.5 in such manner as will not result in acceleration of the
exercise of stock purchase rights under the ESPP.
(b) Promptly after the Effective Time, Parent shall file
one or more registration statements on Form S-3 or Form S-8, as the case
may be (or any other successor or other appropriate forms), with respect to
the shares of Parent Common Stock subject to options and purchase rights
issued pursuant to Sections 2.4 and 2.5 and shall maintain the
effectiveness of such registration statement or registration statements
(and maintain the current status of the prospectus or prospectuses
contained therein) for so long as such options remain outstanding.
Section 6.15 Restructure of Transaction. In the event
that either of Xxxxxx & Xxxxxxx, counsel to Parent, or Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel to the Company, is unable to render its
opinion pursuant to Section 7.2(c) or Section 7.3(c), respectively, the
structure of the Merger shall be revised to provide for the merger of the
Company with and into Merger Sub with Merger Sub being the surviving entity
in such Merger (the "Forward Subsidiary Merger"), subject to the approval
of each of the Company and Parent which approval shall not be unreasonably
withheld or delayed; provided, that if a Forward Subsidiary Merger
structure would not result in each of Xxxxxx & Xxxxxxx or Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP being able to render such respective opinions,
the Company and Parent shall negotiate in good faith to revise the
structure of the business combination between the Company and Parent such
that each of Xxxxxx & Xxxxxxx and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
will be able to render such opinion; provided, further, that no such
revision to the structure of the Merger shall (a) result in any change in
the Merger Consideration, (b) be materially adverse to the interests of
Parent, the Company, Merger Sub, the holders of shares of Parent Common
Stock or the holders of shares of Company Common Stock or (c) unreasonably
impede or delay consummation of the Merger. If the structure of the Merger
is so revised, this Agreement shall be amended by the parties as
appropriate to give effect to the revised structure of the Merger with each
party executing a written amendment to this Agreement as necessary to
reflect the foregoing.
ARTICLE 7.
CLOSING CONDITIONS
Section 7.1 Conditions to Obligations of Each Party Under
This Agreement. The respective obligations of each party to effect the
Merger and the other transactions contemplated herein shall be subject to
the satisfaction at or prior to the Effective Time of the following
conditions, any or all of which may be waived, in whole or in part, to the
extent permitted by applicable Law:
(a) Effectiveness of the Registration Statement. The
Registration Statement shall have been declared effective by the SEC under
the Securities Act. No stop order suspending the effectiveness of the
Registration Statement shall have been issued by the SEC and no proceedings
for that purpose shall have been initiated or, to the Knowledge of Parent
or the Company, threatened by the SEC.
(b) Shareholder and Stockholder Approval. The Company
Shareholder Approval and the Parent Stockholder Approval shall have been
obtained.
(c) No Order. No Governmental Entity, nor any federal or
state court of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, executive
order, decree, judgment or injunction or order (whether temporary,
preliminary or permanent), in any case which is in effect and which
prevents or prohibits consummation of the Merger.
(d) Consents and Approvals. Other than the filing
provided for under Section 1.2 and filings pursuant to the HSR Act, all
consents, approvals and authorizations of any Governmental Entity required
of Parent, the Company or any of their Subsidiaries to consummate the
Merger, the failure of which to be obtained or taken, individually or in
the aggregate, would have a Parent Material Adverse Effect (determined, for
purposes of this clause, after giving effect to the Merger), shall have
been obtained.
(e) HSR Act. The applicable waiting periods, together
with any extensions thereof, under the HSR Act shall have expired or been
terminated.
(f) Nasdaq Listing. The shares of Parent Common Stock
issuable to the Company's shareholders in the Merger and such other shares
of Parent Common Stock to be reserved for issuance in connection with the
Merger shall have been approved for listing on Nasdaq or on such national
securities exchange as Parent Common Stock is then listed, subject to
official notice of issuance.
(g) Litigation. There shall not be instituted or pending
any action, litigation or proceeding by any Governmental Entity (i) seeking
to prohibit, restrain or otherwise interfere with the Merger or the
ownership or operation by Parent or any of its Subsidiaries of all or any
portion of the business or assets of the Company or Parent or any of their
Subsidiaries or to compel Parent or any of its Subsidiaries to dispose of
or hold separate all or any portion of the business or assets of the
Company or Parent or any of their respective Subsidiaries, or (ii) seeking
divestiture of any shares of Company Common Stock (or shares of stock of
the Surviving Corporation) or seeking to impose or confirm limitations on
the ability of Parent to effectively exercise full rights of ownership of
the shares of Company Common Stock (or shares of stock of the Surviving
Corporation), including the right to vote any securities on any matters
properly presented to shareholders, in the case of clause (i) or (ii),
which would, or would reasonably be expected to, have a Parent Material
Adverse Effect (determined, for purposes of this clause, after giving
effect to the Merger).
Section 7.2 Additional Conditions to Obligations of
Parent and Merger Sub. The obligations of Parent and Merger Sub to effect
the Merger and the other transactions contemplated herein are also subject
to the following conditions:
(a) Representations and Warranties. The representations
and warranties of the Company contained in this Agreement shall be true and
correct (without giving effect to any limitation as to "materiality" or
"Company Material Adverse Effect" set forth therein) at and as of the
Effective Time as if made at and as of such time (except to the extent
expressly made as of an earlier date, in which case as of such earlier
date), except where the failure of such representations and warranties to
be true and correct (without giving effect to any limitation as to
"materiality" or "Company Material Adverse Effect" set forth therein) would
not, individually or in the aggregate, result in a Company Material Adverse
Effect. Parent shall have received a certificate signed by an executive
officer of the Company on its behalf to the foregoing effect.
(b) Agreements and Covenants. The Company shall have
performed or complied in all material respects with all agreements and
covenants required by this Agreement to be performed or complied with by it
on or prior to the Effective Time. Parent shall have received a certificate
of an executive officer of the Company to that effect.
(c) Parent Tax Opinion. Parent shall have received the
opinion of Xxxxxx & Xxxxxxx, dated the date of the Effective Time, to the
effect that the Merger will be treated for Federal income Tax purposes as a
reorganization within the meaning of Section 368(a) of the Code. In
rendering such opinion, Xxxxxx & Xxxxxxx shall receive and rely upon
representations contained in letters of Parent and the Company to be
delivered as of the Effective Time substantially in the forms attached
hereto as Exhibits 7.2(c)(i) and 7.2(c)(ii), respectively. The opinion
referred to in this Section 7.2(c) shall not be waivable after receipt of
the Company Shareholder Approval or the Parent Stockholder Approval
referred to in Section 7.1(b), unless further stockholder approval is
obtained with appropriate disclosure.
(d) AHP Agreements. The AHP Agreements shall be in full
force and effect, and no authorized officer of AHP shall have notified
Parent in writing of, and AHP shall not have publicly announced, AHP's
intention to repudiate such agreements.
Section 7.3 Additional Conditions to Obligations of the
Company. The obligation of the Company to effect the Merger and the other
transactions contemplated in this Agreement is also subject to the
following conditions:
(a) Representations and Warranties. The representations
and warranties of Parent contained in this Agreement shall be true and
correct (without giving effect to any limitation as to "materiality" or
"Parent Material Adverse Effect" set forth therein) at and as of the
Effective Time as if made at and as of such time (except to the extent
expressly made as of an earlier date, in which case as of such earlier
date), except where the failure of such representations and warranties to
be true and correct (without giving effect to any limitation as to
"materiality" or "Parent Material Adverse Effect" set forth therein) would
not, individually or in the aggregate, result in a Parent Material Adverse
Effect. The Company shall have received a certificate signed by an
executive officer of Parent on its behalf to the foregoing effect.
(b) Agreements and Covenants. Parent shall have performed
or complied in all material respects with all agreements and covenants
required by this Agreement to be performed or complied with by it on or
prior to the Effective Time. The Company shall have received a certificate
of an executive officer of Parent to that effect.
(c) Company Tax Opinion. The Company shall have received
the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, dated the date of
the Effective Time, to the effect that the Merger will be treated for
federal income Tax purposes as a reorganization within the meaning of
Section 368(a) of the Code. In rendering such opinion, Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP shall receive and rely upon representations
contained in letters of Parent and the Company to be delivered as of the
Effective Time substantially in the form attached hereto as Exhibits
7.2(c)(i) and 7.2(c)(ii), respectively. The opinion referred to in this
Section 7.3(c) shall not be waivable after receipt of the Company
Shareholder Approval or the Parent Stockholder Approval referred to in
Section 7.1(b), unless further stockholder approval is obtained with
appropriate disclosure.
ARTICLE 8.
TERMINATION, AMENDMENT AND WAIVER
Section 8.1 Termination. This Agreement may be terminated
at any time prior to the Effective Time, by action taken or authorized by
the Board of Directors of the terminating party or parties, whether before
or after approval of the matters presented in connection with the Merger by
the shareholders of the Company or the stockholders of Parent:
(a) By mutual written consent of Parent and the Company,
which consent shall have been approved by action of their respective Boards
of Directors;
(b) By written notice of either the Company or Parent, if
the Merger shall not have been consummated prior to September 30, 2002
(such date, as it may be extended as provided below, shall be referred to
herein as the "Outside Date"); provided, however, that such date may, from
time to time, be extended by either party (by written notice thereof to the
other party) up to and including December 31, 2002 in the event all
conditions to effect the Merger other than one or more conditions set forth
in Sections 7.1(c), 7.1(d), 7.1(e) or 7.1(g) (the "Regulatory Conditions")
have been or are capable of being satisfied at the time of each such
extension and the Regulatory Conditions have been or are reasonably capable
of being satisfied on or prior to December 31, 2002; provided further that
the right to terminate this Agreement under this Section 8.1(b) shall not
be available to any party whose failure to fulfill any obligation under
this Agreement has been the cause of, or results in, the failure of the
Merger to occur on or before such date;
(c) By written notice of either the Company or Parent, if
any Governmental Entity shall have issued an order, decree or ruling or
taken any other action permanently restraining, enjoining or otherwise
prohibiting the Merger, and such order, decree, ruling or other action
shall have become final and nonappealable (which order, decree, ruling or
other action the parties shall have used their reasonable best efforts to
resist, resolve or lift, as applicable, subject to Section 6.5);
(d) By written notice of Parent, if (i) the Board of
Directors of the Company shall have withdrawn or adversely modified, or
shall have resolved to withdraw or adversely modify, the Company
Recommendation; (ii) the Board of Directors of the Company shall have
approved or recommended, or shall have resolved to approve or recommend, to
the shareholders of the Company, an Acquisition Proposal other than that
contemplated by this Agreement; or (iii) the Company fails to call or hold
the Company Shareholders' Meeting by the fifth day prior to the Outside
Date;
(e) By written notice of the Company, if (i) the Board of
Directors of Parent shall have withdrawn or adversely modified, or shall
have resolved to withdraw or adversely modify, the Parent Recommendation or
(ii) Parent fails to call or hold the Parent Stockholders' Meeting by the
fifth day prior to the Outside Date;
(f) By written notice of Parent, if there has been a
breach by the Company of any representation, warranty, covenant or
agreement contained in this Agreement which (i) would result in a failure
of a condition set forth in Section 7.2(a) or 7.2(b) and (ii) cannot be
cured prior to the Outside Date, provided that Parent shall have given the
Company written notice, delivered at least twenty days prior to such
termination, stating Parent's intention to terminate this Agreement
pursuant to this Section 8.1(f) and the basis for such termination;
(g) By written notice of the Company, if there has been a
breach by Parent of any representation, warranty, covenant or agreement
contained in this Agreement which (i) would result in a failure of a
condition set forth in Section 7.3(a) or 7.3(b) and (ii) cannot be cured
prior to the Outside Date, provided that the Company shall have given
Parent written notice, delivered at least twenty days prior to such
termination, stating the Company's intention to terminate this Agreement
pursuant to this Section 8.1(g) and the basis for such termination; or
(h) By written notice of either Parent or the Company if
(i) the Company Shareholder Approval shall not have been obtained at the
Company Shareholders' Meeting duly convened therefor (or at any adjournment
or postponement thereof) at which a quorum is present and the vote to adopt
and approve this Agreement and the Merger is taken, or (ii) the Parent
Stockholder Approval shall not have been obtained at the Parent
Stockholders' Meeting duly convened therefor (or at any adjournment or
postponement thereof) at which a quorum is present and the vote to approve
the Share Issuance is taken.
Section 8.2 Effect of Termination.
(a) Limitation on Liability. In the event of termination
of this Agreement by either the Company or Parent as provided in Section
8.1, this Agreement shall forthwith become void and there shall be no
liability or obligation on the part of Parent, Merger Sub or the Company or
their respective Subsidiaries, officers or directors, except with respect
to Sections 6.3(b) and 8.2 and Article 9 and with respect to any
liabilities or damages incurred or suffered by a party as a result of the
willful and material breach by the other party of any of its
representations, warranties, covenants or other agreements set forth in
this Agreement.
(b) Parent Expenses. Parent and the Company agree that if
this Agreement is terminated pursuant to Sections 8.1(f), then the Company
shall pay Parent an amount equal to the sum of Parent's Expenses up to an
amount equal to $15 million.
(c) Company Expenses. Parent and the Company agree that
if this Agreement is terminated pursuant to Sections 8.1(g), then Parent
shall pay to the Company an amount equal to the sum of the Company's
Expenses up to an amount equal to $15 million.
(d) Payment of Expenses. Payment of Expenses pursuant to
Sections 8.2(b) or 8.2(c) shall be made not later than two Business Days
after delivery to the other party of notice of demand for payment and a
documented itemization setting forth in reasonable detail all Expenses of
the party entitled to receive payment (which itemization may be
supplemented and updated from time to time by such party until the
ninetieth day after such party delivers such notice of demand for payment).
(e) Company Termination Fee.
(i) In the event that this Agreement is terminated
pursuant to (A) Section 8.1(d)(i) and the Board of Directors of the Company
has withdrawn or adversely modified the Company Recommendation in such a
manner that the Company cannot submit this Agreement to a vote of the
Company's shareholders pursuant to Section 23B.11.030(2) of the WBCA, (B)
Section 8.1(d)(ii), or (C) Section 8.1(d)(iii), then the Company shall pay
to Parent, within two Business Days following written notice of such
termination, a termination fee of $475,000,000 in immediately available
funds.
(ii) In the event that the Company shall have withdrawn
or adversely modified the Company Recommendation prior to the Company
Shareholders' Meeting and this Agreement is terminated pursuant to Section
8.1(h)(i), then the Company shall pay to Parent, within two Business Days
following written notice of such termination, a termination fee of
$475,000,000 in immediately available funds.
(iii) In the event that (A) this Agreement is terminated
pursuant to Section 8.1(h)(i) and, at any time after the date of this
Agreement and before the vote on this Agreement at the Company
Shareholders' Meeting, an Acquisition Proposal with respect to the Company
shall have been publicly announced and not bona fide withdrawn and (B) a
Competing Transaction with respect to the Company is consummated or the
Company enters into a definitive agreement with respect to a Competing
Transaction, in either case, within twelve months following the termination
of this Agreement, then the Company shall pay to Parent, within two
Business Days after the earlier of the consummation of such Competing
Transaction or execution of a definitive agreement with respect to such
Competing Transaction, a fee of $475,000,000 in immediately available
funds.
(f) Parent Termination Fee.
(i) In the event that the Board of Directors of Parent
shall have withdrawn or adversely modified the Parent Recommendation and,
thereafter, this Agreement is terminated pursuant to Section 8.1(h)(ii),
then Parent shall pay to the Company, within two Business Days following
written notice of such termination, a termination fee of $475,000,000 in
immediately available funds.
(ii) In the event that this Agreement is terminated
pursuant to Section 8.1(e)(ii), then Parent shall pay to the Company,
within two Business Days following written notice of such termination, a
termination fee of $475,000,000 in immediately available funds.
(g) All Payments. All payments under Section 8.2 shall be
made by wire transfer of immediately available funds to an account
designated by the party entitled to receive payment. The Company and Parent
acknowledge that the agreements contained in Section 8.2 are an integral
part of the transactions contemplated by this Agreement and that, without
these agreements, neither the Company nor Parent would enter into this
Agreement. Accordingly, if either party fails promptly to pay any amount
due pursuant to this Section 8.2 and, in order to obtain such payment, the
Company or Parent, as applicable, commences a suit which results in a
judgment against the other party for the fee set forth in this Section 8.2,
such defaulting party shall pay to the prevailing party its costs and
expenses (including reasonable attorneys' fees and expenses) in connection
with such suit, together with interest on the amount of the fee at the
prime rate of Citibank, N.A. in effect on the date such payment was
required to be made.
Section 8.3 Amendment. This Agreement may be amended by
the parties hereto by action taken by or on behalf of their respective
Boards of Directors at any time prior to the Effective Time; provided,
however, that, after approval of the Merger by the shareholders of the
Company, no amendment may be made without further shareholder approval
which, by Law or in accordance with the rules of Nasdaq, requires further
approval by such shareholders. This Agreement may not be amended except by
an instrument in writing signed by the parties hereto.
Section 8.4 Waiver. At any time prior to the Effective
Time, any party hereto may (a) extend the time for the performance of any
of the obligations or other acts of the other party hereto, (b) waive any
inaccuracies in the representations and warranties of the other party
contained herein or in any document delivered pursuant hereto, and (c)
waive compliance by the other party with any of the agreements or
conditions contained herein; provided, however, that after any approval of
the transactions contemplated by this Agreement by the shareholders of the
Company, there may not be, without further approval of such shareholders,
any extension or waiver of this Agreement or any portion thereof which, by
Law or in accordance with the rules of Nasdaq, requires further approval by
such shareholders. Any such extension or waiver shall be valid only if set
forth in an instrument in writing signed by the party or parties to be
bound thereby, but such extension or waiver or failure to insist on strict
compliance with an obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or
other failure.
Section 8.5 Fees and Expenses. Subject to Sections
8.2(a), 8.2(b), 8.2(c) and 8.2(g), all expenses incurred by the parties
hereto shall be borne solely and entirely by the party which has incurred
the same; provided, however, that each of Parent and the Company shall pay
one-half of the expenses related to printing, filing and mailing the
Registration Statement and the Proxy Statement and all SEC and other
regulatory filing fees incurred in connection with the Registration
Statement and the Proxy Statement.
ARTICLE 9.
GENERAL PROVISIONS
Section 9.1 Non-Survival of Representations and
Warranties. None of the representations and warranties in this Agreement or
in any instrument delivered pursuant to this Agreement shall survive the
Effective Time. This Section 9.1 shall not limit any covenant or agreement
of the parties which by its terms contemplates performance after the
Effective Time.
Section 9.2 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 (but only if followed by transmittal by national
overnight courier or hand for delivery on the next Business Day) 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:
(a) If to Parent or Merger Sub, addressed to it at:
Amgen Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
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 X. Xxxx
(b) If to the Company, addressed to it at:
Immunex Corporation
00 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Chief Executive Officer
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxx
Xxxxxxx Xxxxxx
Section 9.3 Certain Definitions. For purposes of this
Agreement, the term:
"Accelerated Company Option" shall mean a Company Option
with a per share exercise price which is equal to or less than the greater
of (i) $40.00 or (ii) the closing sales price for a share of Company Common
Stock (or the closing bid, if no sales were reported) as quoted on Nasdaq
for the last market trading day immediately preceding the Effective Time,
as reported in The Wall Street Journal.
"Acquisition Proposal" means any offer or proposal
concerning any (a) merger, consolidation, business combination, or similar
transaction involving the Company or any Significant Subsidiary of the
Company pursuant to which the shareholders of the Company immediately prior
to such transaction would own less than 80% of any class of equity
securities of the entity surviving or resulting from such transaction (or
the ultimate parent entity thereof), (b) sale or other disposition directly
or indirectly of assets of the Company or the Company Subsidiaries
representing 20% or more of the consolidated assets of the Company and the
Company Subsidiaries, (c) issuance, sale, or other disposition of
securities (or options, rights or warrants to purchase, or securities
convertible into or exchangeable for, such securities) in each case by the
Company representing 20% or more of the voting power of the Company or (d)
transaction in which any person shall acquire beneficial ownership, or the
right to acquire beneficial ownership or any group shall have been formed
which beneficially owns or has the right to acquire beneficial ownership
of, 20% or more of the outstanding voting capital stock of the Company
(other than the Merger).
"Affiliate" of a specified person means a person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the person specified.
"beneficial ownership" (and related terms such as
"beneficially owned" or "beneficial owner") has the meaning set forth in
Rule 13d-3 under the Exchange Act.
"Blue Sky Laws" means state securities or "blue sky"
Laws.
"Business Day" means any day on which banks are not
required or authorized to close in the City of New York.
"Cancelled Company Option" shall mean a Company Option
with a per share exercise price which exceeds the greater of (i) $40.00 or
(ii) the closing sales price for a share of Company Common Stock (or the
closing bid, if no sales were reported) as quoted on Nasdaq for the last
market trading day immediately preceding the Effective Time, as reported in
The Wall Street Journal.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended as of the date hereof.
"Company Intellectual Property" means all intellectual
property or other proprietary rights of every kind, foreign or domestic,
including all patents, patent applications, inventions (whether or not
patentable), processes, products, technologies, discoveries, copyrightable
and copyrighted works, apparatus, trade secrets, trademarks, trademark
registrations and applications, domain names, service marks, service xxxx
registrations and applications, trade names, trade secrets, know-how, trade
dress, copyright registrations, customer lists, confidential marketing and
customer information, licenses, confidential technical information,
software, and all documentation thereof, in each case, used in the business
of the Company as of the date of this Agreement or the Closing Date.
"Company Material Adverse Effect" means any change
affecting, or condition having an effect on, the Company or any Company
Subsidiary that is, or would reasonably be expected to be, materially
adverse to the business, financial condition or results of operations of
the Company and the Company Subsidiaries, taken as a whole, except, in each
case, for any such change or condition resulting from or arising out of (i)
changes or developments in the biotechnology industry generally, which
changes or developments do not disproportionately affect the Company
relative to other participants in the biotechnology industry in any
material respect, (ii) changes or developments in financial or securities
markets or the economy in general which changes do not disproportionately
affect the Company in any material respect, (iii) any change in the
Company's stock price or trading volume, in and of itself or (iv) the
announcement of the transactions contemplated by this Agreement.
"Company Option" means any option or warrant to purchase
Company Common Stock.
"Company Stock Option Plan" means the Immunex Corporation
1993 Stock Option Plan, as Amended and Restated on April 25, 2000, the
Immunex Corporation 1999 Stock Option Plan, as Amended and Restated on
April 25, 2000, the Stock Option Grant Program for Nonemployee Directors
under the Immunex Corporation Amended and Restated 1999 Stock Option Plan,
the Immunex Corporation Stock Option Plan for Nonemployee Directors, as
Amended and Restated on April 18, 2000, and in each case, the addendums
thereto, or any other plan, agreement or arrangement pursuant to which
Company Options have been issued as of the Effective Time, other than the
ESPP.
"Competing Transaction" means any (a) merger,
consolidation, business combination, or similar transaction involving the
Company or any Significant Subsidiary of the Company pursuant to which the
shareholders of the Company immediately prior to such transaction would own
less than 70% of any class of equity securities of the entity surviving or
resulting from such transaction (or the ultimate parent entity thereof),
(b) sale or other disposition directly or indirectly of assets of the
Company or the Company Subsidiaries representing 30% or more of the
consolidated assets of the Company and the Company Subsidiaries, (c)
issuance, sale, or other disposition of securities (or options, rights or
warrants to purchase, or securities convertible into or exchangeable for,
such securities) in each case by the Company to any person or "group" (as
defined in Rule 13d-5(b)(1) under the Exchange Act) representing 30% or
more of the voting power of the Company or (d) transaction in which any
person shall acquire beneficial ownership, or the right to acquire
beneficial ownership or any group shall have been formed which beneficially
owns or has the right to acquire beneficial ownership of, 30% or more of
the outstanding voting capital stock of the Company (other than any shares
beneficially owned by AHP or its Subsidiaries).
"Contracts" means any of the agreements, contracts,
leases, powers of attorney, notes, loans, evidence of indebtedness,
purchase orders, letters of credit, settlement agreements, franchise
agreements, undertakings, covenants not to compete, employment agreements,
licenses, instruments, obligations, commitments, understandings, policies,
purchase and sales orders, quotations and other executory commitments to
which any company is a party or to which any of the assets of the companies
are subject, whether oral or written, express or implied.
"control" (including the terms "controlled by" and "under
common control with") means the possession, directly or indirectly or as
trustee or executor, of the power to direct or cause the direction of the
management or policies of a person, whether through the ownership of
securities or as trustee or executor, by Contract or credit arrangement or
otherwise.
"delivered" or "made available" (or words of similar
import) shall include, without limitation, all documents and materials made
available in the Company's data rooms in Los Angeles, California or New
York, New York or Parent's data rooms in Los Angeles, California or New
York, New York, as the case may be.
"Environmental Laws" means any federal, state, local or
foreign statute, Law, ordinance, regulation, rule, code, treaty, writ or
order and any enforceable judicial or administrative interpretation
thereof, including any judicial or administrative order, consent decree,
judgment, stipulation, injunction, permit, authorization, policy, opinion,
or agency requirement, in each case having the force and effect of Law,
relating to the pollution, protection, investigation or restoration of the
environment, health and safety as affected by the environment or natural
resources, including, without limitation, those relating to the use,
handling, presence, transportation, treatment, storage, disposal, release,
threatened release or discharge of Hazardous Materials or noise, odor,
wetlands, pollution or contamination.
"Environmental Permits" means any permit, approval,
identification number, license and other authorization required under any
applicable Environmental Law.
"Equity Interest" means any share, capital stock,
partnership, member or similar interest in any entity, and any option,
warrant, right or security (including debt securities) convertible,
exchangeable or exercisable therefor.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, and the regulations promulgated thereunder.
"ERISA Affiliate" means any entity or trade or business
(whether or not incorporated) other than the Company that together with the
Company is considered under common control and treated as a single employer
under Section 4.14(b), (c), (m) or (o) of the Code.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"Expenses" includes all reasonable out-of-pocket expenses
(including, without limitation, all reasonable fees and expenses of
counsel, accountants, investment bankers, experts and consultants to a
party hereto and its Affiliates) incurred by a party or on its behalf in
connection with or related to the authorization, preparation, negotiation,
execution and performance of this Agreement and the transactions
contemplated hereby, including the preparation, printing, filing and
mailing of the Registration Statement and Proxy Statement, as applicable,
and the solicitation of shareholder approvals and all other matters related
to the transactions contemplated hereto.
"GAAP" means generally accepted accounting principles as
applied in the United States.
"Governance Agreement" means that certain Amended and
Restated Governance Agreement dated as of December 15, 1992 among American
Cyanamid Company, Lederle Oncology Corporation and the Company, as amended
by Amendment No. 1 to the Amended and Restated Governance Agreement dated
May 20, 1999 between American Cyanamid Company and the Company and
Amendment No. 2 to Amended and Restated Governance Agreement dated August
9, 2000 between American Cyanamid Company and the Company.
"Governmental Entity" means domestic or foreign
governmental, administrative, judicial or regulatory authority.
"group" is defined as in the Exchange Act, except where
the context otherwise requires.
"Hazardous Materials" means (A) any petroleum, petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials or polychlorinated biphenyls or (B) any
chemical, material or other substance defined or regulated as toxic or
hazardous or as a pollutant or contaminant or waste under any applicable
Environmental Law.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and regulations
thereunder.
"Intellectual Property" means intellectual property or
other proprietary rights of every kind, foreign or domestic, including all
patents, patent applications, inventions (whether or not patentable),
processes, products, technologies, discoveries, copyrightable and
copyrighted works, apparatus, trade secrets, trademarks, trademark
registrations and applications, domain names, service marks, service xxxx
registrations and applications, trade names, trade secrets, know-how, trade
dress, copyright registrations, customer lists, confidential marketing and
customer information, licenses, confidential technical information,
software, and all documentation thereof.
"Knowledge" of any person which is not an individual
means, with respect to any specific matter, the actual knowledge of such
person's executive officers and any other officer having primary
responsibility for such matter.
"Law" means foreign or domestic law, statute, code,
ordinance, rule, regulation, order, judgment, writ, stipulation, award,
injunction, decree or arbitration award or finding.
"Liens" means any mortgage, pledge, lien, security
interest, conditional or installment sale agreement, encumbrance, charge or
other claims of third parties of any kind.
"Nasdaq" means the Nasdaq Stock Market.
"Parent Certificate" means Parent's Restated Certificate
of Incorporation, as amended through the date of this Agreement.
"Parent Intellectual Property" means all intellectual
property or other proprietary rights of every kind, foreign or domestic,
including all patents, patent applications, inventions (whether or not
patentable), processes, products, technologies, discoveries, copyrightable
and copyrighted works, apparatus, trade secrets, trademarks, trademark
registrations and applications, domain names, service marks, service xxxx
registrations and applications, trade names, trade secrets, know-how, trade
dress, copyright registrations, customer lists, confidential marketing and
customer information, licenses, confidential technical information,
software, and all documentation thereof, in each case, used in the business
of Parent as of the date of this Agreement or the Closing Date.
"Parent Material Adverse Effect" means any change
affecting, or condition having an effect on, Parent, Merger Sub or any of
Parent's Subsidiaries that is, or would reasonably be expected to be,
materially adverse to the business, financial condition or results of
operations of Parent and its Subsidiaries, taken as a whole, except, in
each case, for any such change or condition resulting from or arising out
of (i) changes or developments in the biotechnology industry generally,
which changes or developments do not disproportionately affect Parent
relative to other participants in the biotechnology industry in any
material respect, (ii) changes or developments in financial or securities
markets or the economy in general which changes do not disproportionately
affect Parent in any material respect, (iii) any change in Parent's stock
price or trading volume, in and of itself or (iv) the announcement of the
transactions contemplated by this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Liens" means (a) Liens for Taxes, assessments
or similar charges incurred in the ordinary course of business consistent
with past practice that are not yet due and payable or are being contested
in good faith; (b) pledges or deposits made in the ordinary course of
business consistent with past practice; (c) Liens of mechanics,
materialmen, warehousemen or other like Liens securing obligations incurred
in the ordinary course of business consistent with past practice that are
not yet due and payable or are being contested in good faith; and (iv)
similar Liens and encumbrances which are incurred in the ordinary course of
business consistent with past practice and which do not in the aggregate
materially detract from the value of such assets or properties or
materially impair the use thereof in the operation of such business.
"person" means an individual, corporation, limited
liability company, partnership, association, trust, unincorporated
organization, other entity or group.
"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Share Issuance" means the issuance of Parent Common
Stock pursuant to Section 2.1(a).
"Significant Subsidiary" has the meaning set forth in
Rule 1-02 of Regulation S-X.
"Subsidiary" or "Subsidiaries" of any person or any other
person means any corporation, partnership, joint venture or other legal
entity of which such person, as the case may be (either alone or through or
together with any other subsidiary), owns, directly or indirectly, a
majority of the stock or other equity interests the holders of which are
generally entitled to vote for the election of the Board of Directors or
other governing body of such corporation or other legal entity.
"Superior Proposal" means any bona fide offer or proposal
(on its most recently amended or modified terms, if amended or modified)
made by a person other than Parent or Merger Sub that (1) concerns any (a)
merger, tender offer, exchange offer, business combination or similar
transaction involving the Company or any Subsidiary of the Company pursuant
to which (i) shareholders of the Company immediately prior to such
transaction would own less than 50% of the voting power of the entity
surviving or resulting from such transaction (or the ultimate parent entity
thereof) and (ii) shareholders of the Company other than AHP would own less
than 30% of the voting power of the entity surviving or resulting from such
transaction (or the ultimate parent entity thereof) or (b) sale or other
disposition directly or indirectly of assets of the Company or the Company
Subsidiaries representing 67% or more of the consolidated assets of the
Company and the Company Subsidiaries, (2) is on terms which the Board of
Directors of the Company in good faith concludes (following receipt of the
advice of its financial advisors and outside counsel) are more favorable to
the Company's shareholders (in their capacities as shareholders) than the
transactions contemplated by this Agreement (including any revisions
hereto), and (3) is, in the good faith judgment of the Company, reasonably
likely to be completed and financed.
"Taxes" means all taxes of any kind, including, without
limitation, those on or measured by or referred to as income, gross
receipts, sales, use, ad valorem, franchise, profits, license, withholding,
payroll, employment, excise, severance, stamp, occupation, premium, value
added, property or windfall profits taxes, customs, duties or similar fees,
assessments or charges of any kind whatsoever, together with any interest
and any penalties, additions to tax or additional amounts imposed by any
Governmental Entity.
"Tax Returns" means any report, return (including
information return), claim for refund, or statement relating to Taxes,
including any schedule or attachment thereto, and including any amendments
thereof.
"Treasury Regulations" means the United States Treasury
regulations promulgated under the Code.
Section 9.4 Terms Defined Elsewhere. The following terms
are defined elsewhere in this Agreement, as indicated below:
"Agreement" Preamble
"AHP" Recitals
"AHP Agreements" Section 2.7
"Articles of Merger" Section 1.2
"Cash Consideration" Section 2.1(a)
"Certificates" Section 2.2(b)
"Change of Recommendation" Section 6.4(e)
"Closing" Section 1.2
"Closing Date" Section 1.2
"Code" Recitals
"Common Stock Consideration" Section 2.1(a)
"Company" Preamble
"Company Articles" Section 3.2
"Company Benefit Plan" Section 3.9(a)
"Company Bylaws" Section 3.2
"Company Common Stock" Section 2.1(a)
"Company Disclosure Letter" Article 3
"Company Financial Advisor" Section 3.20
"Company Form 10-K" Section 3.7(c)
"Company Material Contract" Section 3.12
"Company Pharmaceutical Products" Section 3.19(a)
"Company Permits" Section 3.6
"Company Preferred Stock" Section 3.3(a)
"Company Recommendation" Section 6.2(c)
"Company SEC Filings" Section 3.7(a)
"Company Shareholder Approval" Section 3.21
"Company Shareholders' Meeting" Section 6.2(a)
"Company Subsidiaries" Section 3.1
"Confidentiality Agreement" Section 6.3(b)
"D&O Insurance" Section 6.10(b)
"Director Plans" Section 2.4
"Dissenting Share" Section 2.1(e)
"Effective Time" Section 1.2
"employee benefit plan" Section 3.9(a)
"ESPP" Section 2.5
"Excess Shares" Section 2.2(e)(i)
"Exchange Agent" Section 2.2(a)
"Exchange Fund" Section 2.2(a)
"Exchange Ratio" Section 2.1(a)
"FDA" Section 3.6
"FDCA" Section 3.6
"Forward Subsidiary Merger" Section 6.15
"IRS" Section 3.9(a)
"Joint Proxy/Prospectus" Section 6.1(a)
"Litigation Conditions" Section 8.1(b)
"Merger" Recitals
"Merger Consideration" Section 2.1(a)
"Merger Sub" Preamble
"multiemployer plan" Section 3.9(d)
"New Parent Employees" Section 6.9(a)
"Option Exchange Ratio" Section 2.4(a)
"Outside Date" Section 8.1(b)
"Parent" Preamble
"Parent Benefit Plans" Section 6.9(b)
"Parent Bylaws" Section 4.2
"Parent Common Stock" Section 2.1(a)
"Parent Disclosure Letter" Article 4.
"Parent Financial Advisor" Section 4.14
"Parent Form 10-K" Section 4.7(c)
"Parent Permits" Section 4.6
"Parent Pharmaceutical Products" Section 4.12(a)
"Parent Preferred Stock" Section 4.3(a)
"Parent Recommendation" Section 6.2(d)
"Parent SEC Filings" Section 4.7(a)
"Parent Stockholder Approval" Section 4.15
"Parent Stockholders' Meeting" Section 6.2(b)
"Parent Subsidiaries" Section 4.1
"Product Rights Agreement" Section 3.15
"Registration Statement" Section 6.1(a)
"Proxy Statement" Section 6.1(a)
"Replacement Option" Section 2.4(b)
"Representatives" Section 6.3(a)
"Rights Plan" Section 2.1(f)
"Section 16" Section 6.13
"Superior Proposal Notice" Section 6.4(c)
"Surviving Corporation" Section 1.1
"Voting Agreement" Recitals
"WBCA" Recitals
Section 9.5 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 9.6 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 9.7 Entire Agreement. This Agreement (together
with the Exhibits, Parent and Company Disclosure Letters and the other
documents delivered pursuant hereto) and the Confidentiality Agreement
constitute the entire agreement of the parties and supersede all prior
agreements and undertakings, both written and oral, between the parties, or
any of them, with respect to the subject matter hereof.
Section 9.8 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 any
attempt to make any such assignment without such consent shall be null and
void, except that Merger Sub may assign, in its sole discretion, any or all
of its rights, interests and obligations under this Agreement to any direct
wholly-owned Subsidiary of Parent without the consent of the Company.
Section 9.9 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, other than pursuant to Section 6.11, 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 9.10 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 9.11 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, applicable to contracts
executed in and to be performed entirely within the State, except that the
provisions of the WBCA shall govern the Merger.
(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 (a) agrees not to commence any such
action or proceeding except in such courts, (b) 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, (c) 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 (d) 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 9.2. 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 (A) 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,
(B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C)
IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.11(c).
Section 9.12 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 9.13 Disclosure. Any matter disclosed in any
section of a party's Disclosure Letter shall be considered disclosed for
other sections of such Disclosure Letter, but only to the extent such
matter on its face would reasonably be expected to be pertinent to a
particular section of a party's Disclosure Letter in light of the
disclosure made in such section. The provision of monetary or other
quantitative thresholds for disclosure does not and shall not be deemed to
create or imply a standard of materiality hereunder.
Section 9.14 Counterparts. This Agreement may be executed
in one 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.
[Signature page follows]
IN WITNESS WHEREOF, Parent, Merger Sub and the Company
have caused this Agreement to be executed as of the date first written
above by their respective officers thereunto duly authorized.
AMGEN INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board,
CEO and President
AMS ACQUISITION INC.
a Washington corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board, CEO
and President
IMMUNEX CORPORATION
a Washington corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
[SIGNATURE PAGE - AGREEMENT AND PLAN OF MERGER]
