STOCK PURCHASE AGREEMENT
AGREEMENT dated as of June 30, 1995 by and between ENZON, INC., a
Delaware corporation, with offices at 00 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000 ("Seller" or "Company") and SCHERING CORPORATION, a New Jersey
corporation with offices at 0000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000 ("Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser desires hereby to make an equity investment in
Seller on the terms and conditions hereinafter set forth; and
WHEREAS, Seller desires Purchaser to make such an investment.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the parties hereto agree as follows:
SECTION 1. PURCHASE AND SALE OF THE SHARES.
1.1 PURCHASE AND SALE. Subject to and upon the terms and
conditions of this Agreement, Seller agrees to sell to Purchaser, and Purchaser
agrees to purchase from Seller, on the Closing Date (as defined in Section 8.1)
hereof, that number of shares (the "Shares") of the Seller's $.01 par value
common stock (the "Common Stock") equal to the quotient of (i) $2,000,000,
divided by (ii) the Per Share Purchase Price (as defined in Section 1.2).
1.2 PURCHASE PRICE. The per share purchase price (the "Per Share
Purchase Price") for the Shares shall be the average of the last reported sale
price of the Common Stock during the period commencing on May 18, 1995 and
ending on June 28, 1995, as reported by the National Association of Securities
Dealers Automated Quotation National Market System ("NASDAQ") (adjusted for
stock splits, recapitalizations or similar events). The aggregate purchase
price for the Shares shall be $2,000,000 (the "Purchase Price").
1.3 PAYMENT AT CLOSING AND DELIVERY OF SHARES. On the Closing
Date, Purchaser shall pay to Seller the Purchase Price for the Shares in
immediately available funds by either bank or cashier's check or wire transfer
to an account designated by the Seller. Simultaneously therewith, Seller shall
deliver to Purchaser certificates representing the Shares.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to Purchaser as follows:
2.1 ORGANIZATION AND QUALIFICATION. Each of the Seller and its
subsidiaries is a corporation duly organized and existing in good standing
under the laws of the jurisdiction in which it is incorporated, except, in the
case of such subsidiaries, as would not have a Material Adverse Effect (as
defined below), and has the requisite corporate power to own its properties and
to carry on its business as now being conducted. Each of the Seller and its
subsidiaries is duly qualified as a foreign corporation to do business and is
in good standing in every jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary and where
the failure so to qualify would have a Material Adverse Effect. "Material
Adverse Effect" means any material adverse effect on the operations, properties
or financial condition of the Seller and its subsidiaries taken as a whole.
2.2 AUTHORIZATION; ENFORCEMENT. (i) The Seller has the requisite
corporate power and authority to enter into and perform this Agreement and to
issue the Shares in accordance with the terms hereof, (ii) the execution and
delivery of this Agreement by the Seller and the consummation by it of the
transactions contemplated hereby have been duly authorized by the Seller's
Board of Directors and no further consent or authorization of the Seller or its
Board of Directors or stockholders is required, (iii) this Agreement has been
duly executed and delivered by the Seller, and (iv) this Agreement constitutes
a valid and binding obligation of the Seller enforceable against the Seller in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally the enforcement of creditors'
rights and remedies or by other equitable principles of general application.
2.3 CAPITALIZATION. As of March 31, 1995, the authorized capital
stock of the Seller consisted of (i) 40,000,000 shares of Common Stock of which
25,481,385 shares were issued and outstanding and (ii) 3,000,000 shares of
Preferred Stock $.01 par value, of which 109,000 shares designated as Series A
Cumulative Convertible Preferred Stock (the "Preferred Stock"), were issued and
outstanding. All of such outstanding shares have been validly issued and are
fully paid and nonassessable. No shares of Common Stock or Preferred Stock are
entitled to preemptive rights. Except as disclosed in SCHEDULE 2.3, as of
March 31, 1995, there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock of the
Seller or any of its subsidiaries, or arrangements by which the Seller or any
of its subsidiaries is or may become bound to issue additional shares of
capital stock of the Seller or any of its subsidiaries or options, warrants,
scrip, rights to subscribe to, or commitments to purchase or acquire, any
shares, or securities or rights convertible into shares, of capital stock of
the Seller or any of its subsidiaries. The Seller has furnished to the
Purchaser true and correct copies of the Seller's Certificate of Incorporation
as in effect on the date hereof ("Certificate of Incorporation") and the
Seller's By-laws as in effect on the date hereof (the "By-laws").
2.4 ISSUANCE OF SHARES. The Shares are duly authorized and when
paid for in accordance with the terms hereof shall be validly issued, fully
paid and non-assessable and, based in part on the representations of Purchaser
contained in Sections 3 and 4 of this Agreement, will be issued to Purchaser in
compliance with all applicable Federal and State securities laws.
2.5 NO CONFLICTS. The execution, delivery and performance of
this Agreement by the Seller and the consummation by the Seller of the
transactions contemplated thereby do not (i) result in a violation of the
Seller's Certificate of Incorporation or By-laws, or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Seller or any of its subsidiaries is a party, or to the
best knowledge of Seller, result in a violation of any law, rule, regulation,
order, judgment or decree (including Federal and state securities laws and
regulations) applicable to the Seller, any of its subsidiaries or by which any
property or asset of the Seller or any of its subsidiaries is bound or affected
(except for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect). To the best of Seller's knowledge, the
businesses of the Seller and its subsidiaries are not being conducted, in
violation of any law, ordinance or regulation of any governmental entity,
except for possible violations which either singly or in the aggregate do not
have a Material Adverse Effect. Except as required under the Securities Act of
1933, as amended (the "Securities Act") and any applicable state securities
laws, the Seller is not required to obtain any consent, authorization or order
of, or make any filing or registration with, any court or governmental agency
in order for it to execute, deliver or perform any of its obligations under
this Agreement or issue the Shares, and sell the Shares in accordance with the
terms hereof.
2.6 SEC DOCUMENTS, FINANCIAL STATEMENTS. The Seller has filed
all reports, schedules, forms, statements and other documents required to be
filed by it with the Securities and Exchange Commission (the "SEC") pursuant to
the reporting requirements of the Securities Exchange Act of 1934 (the
"Exchange Act"), except that the Company inadvertently did not file a Financial
Data Schedule to its Quarterly Report on Form 10-Q for the quarter ended March
31, 1995 which it intends to file as soon as reasonably practicable by
amendment to such Form 10-Q (all of the foregoing filed during the period
commencing on January 1, 1993 and ending as of the date hereof and all exhibits
included therein and financial statements and schedules thereto and documents
(other than exhibits) incorporated by reference therein, being hereinafter
referred to herein as the "SEC Documents"). The Seller has delivered to the
Purchaser true and complete copies of the SEC Documents, except for such
exhibits, schedules and incorporated documents. As of their respective dates,
the SEC Documents complied in all material respects with the requirements of
the Exchange Act and the rules and regulations of the SEC promulgated
thereunder applicable to such SEC Documents, and none of the SEC Documents, at
the time they were filed with the SEC, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. As of their
respective dates, the financial statements of the Seller included in the SEC
Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto. Such financial statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
during the periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they may not include footnotes or may be
condensed or summary statements) and fairly present in all material respects
the consolidated financial position of the Seller and its consolidated
subsidiaries as of the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments).
2.7 ABSENCE OF UNDISCLOSED LIABILITIES. Except as disclosed in
SCHEDULE 2.7, the Seller and its subsidiaries do not have any "Undisclosed
Liabilities." For purposes hereof, "Undisclosed Liabilities" shall mean any
and all liabilities or obligations (whether absolute, accrued, contingent or
otherwise), which are neither (i) accrued or reserved against in the Seller's
financial statements contained in the SEC Documents or reflected in the notes
thereto, (ii) reflected or disclosed in any other Schedule furnished under and
referred to in this Agreement, or (iii) normally recurring liabilities incurred
subsequent to March 31, 1995 in the ordinary course of business and consistent
with past practice.
2.8 ABSENCE OF ADVERSE CHANGES. Except as set forth in SCHEDULE
2.8, since March 31, 1995 through the date hereof, there has not been any (i)
material adverse change in the business, operations, properties, assets,
liabilities or condition (financial or otherwise) of the Seller or its
subsidiaries; (ii) damage, destruction or loss, whether covered by insurance or
not, adversely affecting in any material respect the business, properties or
financial condition of the Seller or its subsidiaries; (iii) change by the
Seller or its subsidiaries in accounting methods or principles used for
financial reporting purposes; or (iv) agreement, whether in writing or
otherwise, to take any action which would result in a condition described in
this Section 2.8.
2.9 LITIGATION. There is no judicial or administrative action or
other proceeding pending or, to the best of the knowledge of the Seller,
threatened, nor, to the best of the knowledge of the Seller, is there any
governmental investigation pending or threatened, that questions the validity
of any of the transactions contemplated by this Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to Seller as follows:
3.1 AUTHORIZATION; ENFORCEMENT. (i) The Purchaser has the
requisite corporate power and authority to enter into and perform this
Agreement, (ii) the execution and delivery of this Agreement by the Purchaser
and the consummation by it of the transactions contemplated thereby have been
duly authorized by all necessary corporate action, and no further consent or
authorization of the Purchaser or its Board of Directors or stockholders is
required, (iii) this Agreement has been duly authorized, executed and delivered
by the Purchaser, and (iv) this Agreement constitutes a valid and binding
obligation of the Purchaser enforceable against the Purchaser in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally the enforcement of, creditors' rights and
remedies or by other equitable principles of general application.
3.2 NO CONFLICTS. The execution, delivery and performance of
this Agreement and the consummation by the Purchaser of the transactions
contemplated hereby do not (i) result in a violation of the Purchaser's charter
documents or by-laws or (ii) conflict with, or constitute a default (or an
event of default) under, any agreement, indenture or instrument to which the
Purchaser or any of its subsidiaries is a party, or result in a violation of
any law, rule, regulation, order, judgment or decree of any court or
governmental agency (including Federal and state securities laws and
regulations) applicable to the Purchaser, any of its subsidiaries or their
respective properties (except for such conflicts, defaults and violations as
would not, individually or in the aggregate, have a material adverse effect on
the Purchaser). The Purchaser is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court
or governmental agency in order for it to execute, deliver or perform any of
its obligations under this Agreement or purchase the Shares in accordance with
the terms hereof.
3.3 INVESTMENT INTENT. Purchaser is purchasing the Shares for
investment only for its own account, and not with a view to the sale or
distribution of all or any part thereof, and Purchaser has no present intention
of selling or distributing any of the Shares. Purchaser understands and agrees
that the Shares are not and will not be registered under the Securities Act in
reliance on the fact that the sale of the Shares provided for in this Agreement
and the issuance of such securities are exempt from the registration provisions
of the Securities Act and that Seller's reliance on any exemptions from such
registration provisions is predicated, in part, on the Purchaser's
representations set forth herein.
3.4 DISCLOSURE OF INFORMATION; ETC. The Purchaser represents
that it has received all the information it considers necessary or appropriate,
including the SEC Documents, to make its decision to purchase the Shares. The
Purchaser further represents that it has had an opportunity to ask questions
and receive answers from the Seller regarding the terms and conditions of the
purchase of the Shares.
3.5 STOCK OWNERSHIP. Prior to the consummation of the
transactions contemplated by this Agreement, Purchaser will have owned no
shares of Common Stock, warrants or other securities of Seller.
SECTION 4. SECURITIES ACT RESTRICTIONS.
4.1 NO REGISTRATION UNDER THE SECURITIES ACT OF 1933. The
Purchaser represents and warrants to the Seller that the Purchaser will not
dispose of any Shares (or any other securities issued with respect thereto upon
any conversion, stock split, stock dividend, recapitalization or similar event)
(collectively the "Restricted Securities") except pursuant to (i) an effective
registration statement filed under the Securities Act, (ii) Rule 144 under the
Securities Act (or any similar rule under the Securities Act relating to the
disposition of securities) or (iii) an opinion of counsel, reasonably
satisfactory to counsel for Seller, that an exemption from such registration is
available.
4.2 CERTIFICATES TO BEAR LEGENDS. The Restricted Securities
shall be subject to a stop-transfer order and the certificate or certificates
evidencing the Restricted Securities shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (ii) TO THE
EXTENT APPLICABLE, UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SIMILAR RULE
UNDER THE SECURITIES ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THIS CORPORATION, THAT AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT IS AVAILABLE.
4.3 REMOVAL OF LEGENDS AND TRANSFER RESTRICTIONS. The legend
relating to the Securities Act endorsed on each certificate for Restricted
Securities pursuant to Section 4.2 and any stop transfer instructions with
respect to the Restricted Securities represented by such certificate shall be
removed and Seller shall issue a certificate without such legend pursuant to
instructions received from the Purchaser if such Restricted Securities are sold
pursuant to a registration under the Securities Act and a prospectus meeting
the requirements of Section 10 of the Securities Act is available, or if the
Purchaser provides to Seller an opinion of counsel for the Purchaser reasonably
satisfactory to Seller, or a no-action letter or interpretive opinion of the
staff of the SEC to the effect that a public sale, transfer or assignment of
such Restricted Securities may be made without registration under the
Securities Act.
4.4 TRANSFER TO AFFILIATES. Notwithstanding the provisions of
Section 4.1 above, no registration under the Securities Act or opinion of
counsel shall be necessary for a transfer by Purchaser of the Shares to a
subsidiary, shareholder or affiliate of the Purchaser, if the transferee agrees
in writing to be subject to the terms hereof to the same extent as if such
transferee were the Purchaser hereunder.
SECTION 5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE. The obligation
of Purchaser to consummate the transactions contemplated by this Agreement is
subject to the satisfaction at or before the Closing Date of all of the
following conditions:
(i) PERFORMANCE BY SELLER. Each of the acts and undertakings of
Seller to be performed at or before the Closing Date pursuant
to the terms of this Agreement shall have been performed in all
material respects.
(ii) ACCURACY OF REPRESENTATIONS. The representations and
warranties of Seller in this Agreement shall be true and
correct in all respects on and as of the Closing Date.
(iii) CERTIFICATES. Seller shall have furnished Purchaser with a
certificate of its chief executive officer to the effect set forth
in Sections 5.1(i) and (ii).
(iv) OPINION OF COUNSEL. Purchaser shall have received an opinion,
dated the Closing Date, of Xxxx & Xxxxxxx, counsel to Seller in
reasonable and customary form.
5.2 CONDITIONS TO SELLER'S OBLIGATION TO CLOSE. The obligation of
Seller to consummate the transactions contemplated by this Agreement is subject
to the satisfaction at or before the Closing Date of all of the following
conditions:
(i) PERFORMANCE BY PURCHASER. Each of the acts and undertakings of
Purchaser to be performed at or before the Closing Date
pursuant to the terms of this Agreement shall have been
performed in all material respects.
(ii) ACCURACY OF REPRESENTATIONS. The representations and
warranties of Purchaser in this Agreement shall be true and
correct in all respects on and as of the Closing Date.
(iii) CERTIFICATES. Purchaser shall have furnished Seller with a
certificate of an executive officer to the effect set forth in this
Section 5.2(i) and (ii).
SECTION 6. TERMINATION.
This Agreement and the transactions contemplated hereby may be
abandoned or terminated on or before the Closing Date without any obligation to
any party hereunder: (i) by mutual agreement of Purchaser and the Seller; or
(ii) at the option of Seller or the Purchaser, if (a) any legal action or
proceeding shall have been instituted or threatened by a third party seeking to
restrain, prohibit, invalidate or otherwise affect the consummation of the
transactions contemplated hereby, or (b) the transactions contemplated hereby
are not consummated by August 31, 1995.
SECTION 7. REGISTRATION OF COMMON STOCK: COVENANTS OF THE COMPANY.
7.1 DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Section 7 shall have the meanings herein specified for all
purposes of this Agreement, applicable to both the singular and plural forms of
any of the terms herein defined.
"BOARD" means the Board of Directors of the Company.
"HOLDER" of any security means the record or beneficial owner
of such security or any permitted assignee thereof.
"PERSON" means any natural person, corporation, trust,
association, company, partnership, joint venture or other entity or any
government, governmental agency, instrumentality or political subdivision.
The terms "REGISTER", "REGISTERED" "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration for ordering of the
effectiveness of such registration statement.
"REGISTRABLE SECURITIES" means (i) the shares of Common Stock
sold pursuant to this Agreement and (ii) any Common Stock issued or issuable
(either directly or upon the conversion of or exercise of any warrant, right or
other security) with respect to the Common Stock referred to in clause (i)
above by way of a stock dividend or stock split or in connection with a
combination of shares, reclassification, recapitalization, merger or
consolidation or reorganization; provided, however that such shares of Common
Stock shall cease to be Registrable Securities if they are (w) sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, or (x) sold in a transaction pursuant to Rule 144 under
the Securities Act, or (y) otherwise transferred or disposed of, and new
certificates therefor not bearing a legend restricting further transfer shall
have been delivered by the Company, and subsequent transfer or disposition of
them shall not require their registration or qualification under the Securities
Act or any similar state law then in force, or (z) they cease to be
outstanding.
7.2 DEMAND REGISTRATION.
(a) If and whenever the Company shall receive at any time
after six (6) months after the Closing Date hereunder a written request
therefor from the Holders of at least 25 percent of the Registrable Securities,
the Company agrees to prepare and file promptly a registration statement under
the Securities Act covering the shares of Registrable Securities which are the
subject of such request and agrees to use its best efforts to cause such
registration statement to become effective as expeditiously as possible. Upon
the receipt of such request, the Company agrees to give prompt written notice
to all Holders of Registrable Securities that such registration is to be
effected. The Company agrees to include in such registration statement such
shares of Registrable Securities for which it has received a written request to
register such shares by the Holders thereof within twenty (20) days after the
receipt by the Holders of the written notice from the Company.
(b) The Company shall be obligated to prepare, file and
cause to become effective only three (3) registration statements pursuant to
this Section 7.2. A registration required to be effected by the Company
pursuant to this Section 7.2 shall not be deemed to have been effected even
though a registration statement with respect thereto has become effective (i)
if after it has become effective, such registration becomes the subject of any
stop order, injunction, or other order or requirement of the SEC or other
governmental agency or court, for any reason not attributable to the Holders
initiating the registration request hereunder (the "Initiating Holders") with
respect to such registration statement, and has not thereafter become effective
or (ii) if the conditions to closing specified in the underwriting agreement,
if any, entered into in connection with such registration are not satisfied or
waived, other than by reason of a failure on the part of the Initiating Holders
with respect to such registration statement.
(c) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they agree to provide the Company with the name of the managing underwriter or
underwriters (the "Managing Underwriter"), who shall be reasonably acceptable
to the Company, that the Initiating Holders holding a majority of the Shares to
be included in the registration propose to employ, as part of their request
made pursuant to this Section 7.2, and the Company agrees to include such
information in its written notice referred to in Section 7.2.(a). In such
event, the right of any Holder to registration pursuant to this Section 7.2
shall be conditioned upon such Holder's participation in such underwriting and
the inclusion of such Holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed by the Holders of a majority of the shares of
Registrable Securities to be included in such registration and such Holder).
All Holders proposing to distribute their securities through such underwriting
agree to enter into (together with the Company) an underwriting agreement with
the underwriter or underwriters elected for such underwriting, in the manner
set forth above, provided that such underwriting agreement is in customary form
and is reasonably acceptable to the Holders of a majority of the shares of
Registrable Securities to be included in such registration.
(d) Notwithstanding the foregoing, if the Managing
Underwriter of an underwritten distribution advises the Company and the Holders
of Registrable Securities participating in such registration in writing that in
its good faith judgment the number of shares of Registrable Securities and the
other securities requested to be included in such registration exceeds the
number of shares of Registrable Securities and the other securities which can
be sold in such offering, then (i) the other securities so requested to be
included in such registration shall initially be reduced and the number of
shares of Registrable Securities so requested to be included in such
registration shall subsequently be reduced, together to that number of shares
which in the good faith judgment of the Managing Underwriter can be sold in
such offering and (ii) the reduced number of Registrable Securities to be
included in the underwriting shall be allocated pro rata among all Holders of
Registrable Securities. Those Registrable Securities which are excluded from
the underwriting by reason of the Managing Underwriter's marketing limitation
shall not be included in such registration and shall be withheld from the
market by the Holders thereof for a period which the Managing Underwriter
reasonably determines is necessary to effect the underwritten public offering,
which in no event shall be in excess of 120 days.
7.3 "PIGGYBACK" REGISTRATION.
(a) Each time the Company shall determine to file a
registration statement under the Securities Act (other than pursuant to Section
7.2 hereof and other than on Form X-0, X-0 or a registration statement on Form
S-1 covering solely any employee benefit plan) in connection with the proposed
offer and sale for money of any of its securities either for its own account or
on behalf of any other security holder, the Company agrees to give prompt
written notice of its determination to all Holders of Registrable Securities.
Upon the written request of a Holder of any shares of Registrable Securities
given within twenty (20) days after the receipt of such written notice from the
Company, the Company agrees to cause all such Registrable Securities, the
Holders of which have so requested registration thereof, to be included in such
registration statement and to use its best efforts to cause such registration
statement to become effective under the Securities Act. In the event that the
proposed registration by the Company is, in whole or in part, an underwritten
public offering of securities of the Company, any request pursuant to this
Section 7.3(a) to register Registrable Securities may specify that such
securities are to be included in the underwriting (i) on the same terms and
conditions as the shares of Common Stock, if any, otherwise being sold through
underwriters, under such registration, or (ii) on terms and conditions
comparable to those normally applicable to offerings of Common Stock in
reasonably similar circumstances in the event that no shares of Common Stock
other than Registrable Securities are being sold through underwriters in such
registration.
(b) If the registration of which the Company gives written
notice pursuant to Section 7.3(a) is for an underwritten public offering, the
Company agrees to so advise the Holders as a part of its written notice. In
such event the right of any Holder to registration pursuant to this Section 7.3
shall be conditioned upon such Holder's participation in such underwriting and
the inclusion of such Holder's Registrable Securities in the underwriting to
the extent provided herein. All Holders proposing to distribute their
Registrable Securities through such underwriting agree to enter into (together
with the Company and the other Holders distributing their securities through
such underwriting) an underwriting agreement with the underwriter or
underwriters selected for such underwriting by the Company.
(c) Notwithstanding any other provision of this Section 7.3,
if the Managing Underwriter of an underwritten distribution advises the Company
and the Holders of the Registrable Securities requesting participation in such
registration in writing that in its good faith judgment the number of shares of
Registrable Securities and the other securities requested to be registered
under this Section 7.3 exceeds the number of shares of Registrable Securities
and other securities which can be sold in such offering, then (i) the number of
shares of Registrable Securities and other securities so requested to be
included in the offering shall be reduced to that number of shares which in the
good faith judgment of the Managing Underwriter can be sold in such offering
(except for shares to be issued by the Company in a public offering, which
shall have priority over the Registrable Securities), and (ii) such reduced
number of shares shall be allocated among all participating Holders of
Registrable Securities and holders of other securities in proportion, as nearly
as practicable, to the respective number of shares of Registrable Securities
and other securities requested to be registered held by such Holders at the
time of filing the registration statement. All Registrable Securities and
other securities which are excluded from the underwriting by reason of the
Managing Underwriter's marketing limitation and all other Registrable
Securities not originally requested to be so included shall not be included in
such registration and shall be withheld from the market by the Holders thereof
for a period which the Managing Underwriter reasonably determines is necessary
to effect the underwritten public offering, which in no event shall exceed 120
days.
7.4 REGISTRATION EXPENSES.
(a) The Company shall pay all expenses incurred in effecting
the registration of Registrable Securities pursuant to Section 7 including,
without limitation, all federal and state registration, qualification and
filing fees (subject to Section 7.5(d)), printing expenses, fees and
disbursements of counsel for the Company, reasonable fees and disbursements of
one counsel for the participating Holders together, blue sky fees and expenses,
and the expense of any special audits incident to or required by any such
registration, but not including underwriting discounts, commissions and
expenses.
(b) Notwithstanding the foregoing, in the event that a
registration pursuant to Section 7.2 is requested by the Initiating Holders and
such request is withdrawn prior to the filing of a registration statement by
the Company, or such Holder causes the Company to withdraw a registration
statement prior to its effectiveness, then at the choice of the Initiating
Holders and Holders requesting inclusion of their shares in such registration
statement either (i) the Initiating Holders and Holders requesting inclusion of
their shares in such registration shall bear pro rata all expenses otherwise
borne by the Company and set forth in Section 7.4(a) or (ii) such requested
registration shall be deemed to be one of the registrations the Company is
required to effect pursuant to Section 7.2 hereof; provided however, if at the
time of the withdrawal, the Initiating Holders and the other Holders have
learned of a material adverse change which would have a Material Adverse Effect
with respect to the Company which was not known to such Holders at the time of
their request, then such Holders shall not be required to pay any of such
registration expenses and shall retain their rights pursuant to Section 7.2.
7.5 REGISTRATION PROCEDURES. If and whenever the Company is
required by the provisions of Section 7 to effect the registration of
Registrable Securities under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the SEC a registration statement
which includes the Registrable Securities and use its best efforts to cause
such registration statement to become and remain effective until the
distribution described in the registration statement has been completed;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with respect
to the sale or other disposition of Registrable Securities covered by such
registration statement whenever a Holder shall desire to sell or otherwise
dispose of the same;
(c) furnish to each participating Holder (and to each
underwriter, if any, of Registrable Securities) such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, in order to facilitate the public sale or
other disposition of the Registrable Securities;
(d) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under such state
securities or blue sky laws of such jurisdiction as each participating Holder
shall reasonably request and do any and all other acts and things which may be
necessary under such securities or blue sky laws to enable such Holder to
consummate the public sale or other disposition of the Registrable Securities
in such jurisdictions, except that the Company shall not for any purpose be
required to consent generally to service of process or qualify to do business
as a foreign corporation in any jurisdiction wherein it is not so qualified;
(e) before filing the registration statement or prospectus
or amendments or supplements thereto, furnish to counsel selected by the
participating Holders copies of such documents proposed to be filed which shall
be subject to the reasonable approval of such counsel;
(f) enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the Managing
Underwriter of such offering;
(g) notify the participating Holders at any time when a
prospectus relating to any Registrable Securities covered by such registration
statement is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances in which they were made and promptly file such amendments and
supplements as may be necessary so that, as thereafter delivered to such
Holders of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances in which they were made and use its best efforts
to cause each such amendment to become effective;
(h) furnish at the request of the participating Holders on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to Section 7 (i) an opinion
addressed to the underwriters, if any, and to such Holders, dated such date, of
the counsel representing the Company customarily given by company counsel to
the underwriters in an underwritten public offering, and (ii) a letter dated
such date addressed to the underwriters, if any, and to such Holders, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering; and
(i) use its best efforts to cause all such Registrable
Securities to be listed on the securities exchange, if any, or the National
Association of Securities Dealers Automated Quotation National Market System
("NASDAQ/NMS"), on which the Common Stock is then listed.
7.6 FORM S-3 REGISTRATION. In case the Company shall receive no
sooner than six (6) months after the Closing Date from any Holder or Holders a
written request or requests that the Company effect a registration on Form S-3
and any related qualification with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed
registration, and any related qualification, to all other Holders; and
(b) as soon as practicable, file a registration statement
and effect such registration and all such qualifications as may be so
requested, subject to Section 7.5(d) hereof, and as such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified, in a written
request given within 15 business days after receipt of such written notice from
the Company, provided, however, that the Company shall not be obligated to
effect any such registration or qualification pursuant to this Section 7.6:
(i) if Form S-3 is not available for such offering by the Holders; (ii) if the
Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than Five
Hundred Thousand Dollars ($500,000); (iii) if the Company shall furnish to the
Holders a certificate signed by the President or Chief Executive Officer of the
Company stating that in the good faith judgment of the Board, it would be
seriously detrimental to the Company for such Form S-3 Registration to be
effected at such time, in which event the Company shall have the right to defer
the filing of the Form S-3 Registration Statement for a period of not more than
90 days after receipt of the request of the Holder or Holders under this
Section 7.6; provided, however, that the Company shall not utilize this right
more than once in any 12-month period; (iv) if the Company has, within the 12-
month period preceding the date of such request, already effected one
registration on Form S-3 for the Holders pursuant to this Section 7.6; or (v)
in any particular jurisdiction in which the Company would be required to
qualify to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance.
(c) Registrations effected pursuant to this Section 7.6
shall not be counted as demand registrations effected pursuant to Section 7.2.
7.7 INDEMNIFICATION. In the event Registrable Securities are
registered pursuant to this Section 7:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder of Registrable Securities which are
included in a registration statement pursuant to the provisions of the
Agreement and any underwriter (within the meaning of the Securities Act) with
respect to the Registrable Securities, and each officer, director, employee and
agent thereof and each person, if any, who otherwise controls such Holder or
underwriter (within the meaning of the Securities Act), against any losses,
claims, damages, expenses or liabilities, joint or several, to which they may
become subject under the Securities Act, the Securities Exchange Act of 1934,
as amended (the "Exchange Act") or other federal or state law, or otherwise,
insofar as such losses, claims, damages, expenses or liabilities arise out of
or are based upon any untrue or allegedly untrue statement of any material fact
contained in the registration statement for the Registrable Securities,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or any document incident to the
registration or qualification of any Registrable Securities, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or allegedly necessary to make the
statements therein not misleading or arise out of any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law; and will reimburse such Holder,
any underwriter, officer, director, employee, agent or controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section
7.7(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, expense, liability or action if such settlement is effected without the
written consent of the Company, which shall not be unreasonably withheld, nor
shall the Company be liable under this Section 7.7(a) to such Holder, such
underwriter, officer, director, employee, agent or controlling person for any
such loss, claim, damage, expense, liability or action to the extent that it
arises out of, or is based upon, an untrue statement or allegedly untrue
statement or omission or alleged omission made in connection with such
registration statement, preliminary prospectus, final prospectus, or amendments
or supplements thereto, in reliance upon and in conformity with information
furnished in writing expressly for use in connection with such registration by
such Holder, such underwriter, officer, director, employee, agent or such
controlling person, nor shall the Company be liable under this Section 7.7(a)
to any underwriter or person who controls any underwriter (within the meaning
of the Securities Act) who participates in the offering or sale of the
Registrable Securities, with respect to any preliminary prospectus, final
prospectus, or amendments or supplements thereto to the extent that any such
loss, claim, damage or liability results from the fact that such underwriter
sold Registrable Securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the final
prospectus or of the final prospectus as then amended or supplemented,
whichever is most recent, if the Company has previously furnished copies
thereof to such underwriter.
(b) To the extent permitted by law, each Holder of
Registrable Securities which are included in a registration statement pursuant
to the provisions of this Agreement will indemnify and hold harmless the
Company, each of its employees, agents, directors and officers, each person, if
any, who otherwise controls the Company (within the meaning of the Securities
Act), and any underwriter (within the meaning of the Securities Act) against
any losses, claims, damages, expenses or liabilities to which the Company or
any such person or underwriter may become subject under the Securities Act, the
Exchange Act or other federal or state law or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or action in respect thereof)
arise out of, or are based upon any untrue or allegedly untrue statement of any
material fact contained in a registration statement for the Registrable
Securities, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, or any document incident to
the registration or qualification of any Registrable Securities, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or allegedly necessary to make the
statements therein not misleading; in each case to the extent that such untrue
statement or allegedly untrue statement or omission or alleged omission was
made in such registration statement, preliminary prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with information
furnished in writing by such Holder expressly for use in connection with such
registration; provided, however, that the indemnity agreement contained in this
Section 7.7(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, expense, liability or action if such settlement is effected
without the written consent of such Holder, which shall not be unreasonably
withheld; and such Holder will reimburse the Company or any such person or
underwriter for any legal or other expenses reasonably incurred by the Company
or any such person or underwriter in connection with investigating or defending
such loss, claim, damage, liability, expense or action.
(c) Promptly after receipt by an indemnified party under
this Section 7.7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 7.7, notify the indemnifying party in
writing of the commencement thereof and generally summarize such action. The
indemnifying party shall have the right to participate in and to assume the
defense thereof with counsel mutually satisfactory to the parties. An
indemnifying party shall not have the right to direct the defense of such an
action on behalf of an indemnified party if such indemnified party has
reasonably concluded that there may be defenses available to it that are
different from or additional to those available to the indemnifying party;
provided, however, that in such event, the indemnifying party shall bear the
fees and expenses of only one (1) separate counsel for all indemnified parties.
The failure to notify an indemnifying party promptly of the commencement of any
such action if prejudicial to the ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party under this
Section 7.7, but the omission so to notify the indemnifying party will not
relieve such party of any liability that such party may have to any indemnified
party otherwise than under this Section 7.7.
(d) To the extent permitted by law, the indemnification
provided for under this Section 7.7 will remain in full force and effect
regardless of any investigation made by a controlling person (within the
meaning of the Securities Act) of such indemnified party and will survive the
transfer of any securities.
(e) If for any reason the foregoing indemnity is unavailable
to, or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages, expenses or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, or provides a lesser sum to the indemnified
party than the amount representing such proportion as is appropriate to reflect
not only the relative benefits received by the indemnifying party on the one
hand and the indemnified party on the other but also the relative fault of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. Notwithstanding the foregoing, no underwriter, if
any, shall be required to contribute any amount in excess of the amount by
which the total price at which the securities underwritten by it and
distributed to the public were offered to the public were offered to the public
exceeds the amount of any damages which underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligation of any underwriters to contribute pursuant
to this Section 7.7(e) shall be several in proportion to their respective
underwriting commitments and not joint.
7.8 REPORTS UNDER EXCHANGE ACT. With a view to making available to
the Holders the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell Registrable Securities to the public without registration, and with a view
to making it possible for any such Holder to register the Registrable
Securities pursuant to a registration on Form S-3, the Company agrees to:
(a) use its best efforts to take such action as is necessary
to enable a Holder to utilize Form S-3 for the sale of Registrable Securities;
(b) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) Furnish to a Holder owning any Registrable Securities
upon request (i) a written statement by the Company as to whether it has
complied with the reporting requirements of the Securities Act and the Exchange
Act, or that it qualifies as a registrant whose Registrable Securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably required in availing any Holder of Registrable Securities
of any such Registrable Securities without registration or pursuant to such
form.
7.9 TRANSFERABILITY. The right to cause the Company to register
Registrable Securities granted by the Company to the Holders under this
Agreement may be assigned by any Holder to a transferee or assignee of any
Registrable Securities, provided that the Company must receive written notice
prior to or at the time of said transfer, stating the name and address of said
transferee or assignee and identifying the securities with respect to which
such rights are being assigned. The limitations set forth in this Section 7
with respect to registration rights shall apply to all transferees or assignees
of Registrable Securities.
SECTION 8. CLOSING.
8.1 CLOSING DATE. The "Closing Date" shall be the 20th day
subsequent to the date hereof, or such other date as the parties may mutually
agree to in writing. The closing shall commence at 10:00 a.m. at the offices
of Schering Corporation, 0000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, or such other time or place as the parties may mutually agree in
writing.
8.2 INSTRUMENTS TO BE DELIVERED TO PURCHASER. On the Closing Date,
the Seller shall deliver to the Purchaser:
(i) Certificate(s) representing the Shares.
(ii) Certificate of the Seller's chief executive officer required by
Section 5.1(iii).
8.3 INSTRUMENTS AND PAYMENTS TO BE DELIVERED TO SELLER. On the
Closing Date, the Purchaser shall deliver to the Seller:
(i) The Purchase Price as provided in Section 1.2.
(ii) Certificate of an executive officer required by Section 5.2(iii).
SECTION 9. NOTICES.
SECTION 9.1 NOTICES. Any notice or other communication required
or permitted to be given hereunder shall be in writing and shall be effective
(i) upon hand delivery or delivery by facsimile (with confirmation of such
receipt made by first class mail) at the address or number designated below (if
delivered on any business day during normal business hours where such notice is
to be received), or the first business day following such delivery (if
delivered other than on a business day during normal business hours where such
notice is to be received) or (ii) on the second business day following the date
of mailing by express courier service, fully prepaid, addressed to such
address, or upon actual receipt of such mailing, whichever shall first occur.
The addresses for such communications shall be:
If to the Seller:
Enzon, Inc
00 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Corporate Secretary
With copies to:
Xxxx & Xxxxxxx
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to the Purchaser:
Schering Corporation
0000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Vice President, Business Development
With copies to:
Schering-Plough Corporation
Xxx Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Senior Vice President and General Counsel
Either party hereto may from time to time change its address for notices under
this Section 9.1 by giving at least ten (10) days' written notice of such
changed address to the other party hereto.
SECTION 10. MISCELLANEOUS.
10.1 EXPENSES. Whether or not the transactions contemplated by
this Agreement are consummated, Seller and Purchaser shall each pay all of
their own fees and expenses incidental to the negotiation, preparation and
execution of this Agreement, including the fees and expenses of their own
counsel, accountants and other experts.
10.2 BROKERAGE. Seller and Purchaser each represent and warrant
to the other that no finder's fee or business brokerage commission is payable
to any person, firm or corporation by virtue of the execution and delivery of
this Agreement and the consummation of the transactions contemplated by this
Agreement.
10.3 SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND AGREEMENTS. The
representations, warranties and covenants of the parties set forth herein shall
survive the Closing Date.
10.4 ASSIGNMENT. This Agreement and all of its provisions shall
be binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties without the prior written consent of the other party.
10.5 DESCRIPTIVE HEADINGS. The descriptive headings of the
several sections of this Agreement are inserted for convenience of reference
only and shall neither be deemed to constitute part, nor be given any effect in
the interpretation, of this Agreement.
10.6 GOVERNING LAW AND JURISDICTION. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
Jersey with respect to agreements made and to be performed entirely in such
state without giving effect to conflict of laws principles.
10.7 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.8 MODIFICATION. This Agreement may not be modified or
terminated orally. Any modification or termination of this Agreement shall not
be valid unless expressed in writing and signed by the parties.
10.9 WAIVER OF COMPLIANCE. Any failure of Seller, on the one
hand, or Purchaser, on the other, to comply with any obligation, covenant,
agreement or condition herein may be expressly waived in writing by Seller, in
the case of Purchaser, and by the Purchaser, in the case of Seller, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. Moreover, any such waiver
shall not be deemed to be a waiver of the right to seek damages for a
nonmaterial breach hereof.
10.10 ENTIRE AGREEMENT. This Agreement, and the other documents
referred to herein which form a part hereof, contain the entire understanding
of the parties in respect of the subject matter contained herein. There are no
agreements, restrictions, promises, warranties, covenants, or undertakings,
other than those expressly set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
10.11 PUBLICITY. No party shall originate any publicity, news
release, or other announcement, written or oral, relating to this Agreement, or
to performance hereunder or the existence of an arrangement between the parties
hereto without the prior written approval of the other. Nothing contained
herein shall prevent any party from at any time disclosing or furnishing any
information to any governmental authority which it is by law so obligated to
disclose or furnish or from making any disclosure which its counsel deems
necessary or advisable in order to fulfill such party's disclosure obligations
under applicable law or the rules of the NASDAQ/NMS (or any exchange on which
the Company's securities are hereafter registered) or the New York Stock
Exchange.
10.12 MUTUAL CONTRIBUTION. This Agreement has been drafted on the
basis of the mutual contribution of language by the parties and is not to be
construed against any party as being the drafter or causing the same to be
drafted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ENZON, INC.
By:/S/ XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx, President
and Chief Executive Officer
SCHERING CORPORATION
By:/S/ XXXXX XXXXXXX
Name: XXXXX XXXXXXX
Title: VICE PRESIDENT
SCHEDULE 2.3
As of March 31, 1995 there were 3,756,880 outstanding options to
purchase the Company's common stock (the "Common Stock"), $.01 par value per
share, of which (i) 3,556,880 were reserved for issuance at March 31, 1995
pursuant to the Company's Non-Qualified Stock Option Plan and (ii) 200,000 were
issued to Xxxxxxx Xxxxxxxxxx, the Company's Chairman of the Board, pursuant to
an employment agreement.
As of March 31, 1995, there were 109,000 shares of Series A
Cumulative Convertible Preferred Stock (the "Series A Preferred Stock") of the
Company outstanding which are convertible into 247,727 shares of Common Stock.
As of March 31, 1995, there were 60,014 warrants outstanding to
purchase 60,014 shares of Series A Preferred Stock, which in turn would be
convertible into 136,395 shares of Common Stock.
SCHEDULE 2.7
Subsequent to March 31, 1995, the Company agreed to settle a fee
dispute by paying $470,000 and issuing a warrant to purchase an aggregate of
150,000 shares of the Company's Common Stock.
SCHEDULE 2.8
None.
ENZON, INC.
OFFICER'S CERTIFICATE
Reference is made to the Purchase Agreement (the "Purchase Agreement")
dated as of June 30, 1995, between Schering Corporation, a corporation
organized and existing under the laws of the State of New Jersey (the
"Purchaser"), and Enzon, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Company"). All capitalized terms
used but not otherwise defined herein shall have the meanings ascribed to
such terms in the Purchase Agreement. The undersigned, Xxxxx X. Xxxxxxx,
President and Chief Executive Officer of the Company, pursuant to Section
5.1(iii) of the Purchase Agreement hereby certifies that:
1. Each of the acts and undertakings of the Company to be performed
pursuant to the terms of the Purchase Agreement has been performed in all
material respects.
2. The representations and warranties of the Company contained in the
Purchase Agreement were true and correct in all respects when made and are
true and correct in all respects as of the date hereof, as if made on the
date hereof (except for representations and warranties that speak as of a
particular date, which were true and correct in all respects when made and
have not changed in any respect which could have a Material Adverse Affect
on the Company or the transactions contemplated by the Purchase Agreement).
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of June 30, 1995.
/S/ XXXXX X. XXXXXXX
XXXXX X. XXXXXXX
President and Chief
Executive Officer
SCHERING CORPORATION
OFFICER'S CERTIFICATE
Reference is made to the Purchase Agreement (the "Purchase
Agreement") dated as of June 30, 1995, between Schering Corporation, a
corporation organized and existing under the laws of the State of New
Jersey (the "Purchaser"), and Enzon, Inc., a corporation organized and
existing under the laws of the State of Delaware. All capitalized terms
used but not otherwise defined herein shall have the meanings ascribed to
such terms in the Purchase Agreement. The undersigned, Vice President of
the Purchaser, pursuant to Section 5.2 (iii) of the Purchase Agreement
hereby certifies that:
1. Each of the acts and undertakings of the Purchaser to be
performed pursuant to the terms of the Purchase Agreement has been
performed in all material respects.
2. The representations and warranties of the Purchaser contained
in the Purchase Agreement were true and correct in all respects when made
and are true and correct in all respects as of the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
as of June 30, 1995.
/S/ XXXXX XXXXXXX
Xxxxx Xxxxxxx
Vice President
