EXHIBIT 10.3
Secured Promissory Note
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$279,417,982 January 1, 2002
1. FOR VALUE RECEIVED, Immunex Corporation, a Washington corporation
("Borrower"), hereby unconditionally promises to pay to American Home
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Products Corporation, a Delaware corporation ("AHP") and AHP Subsidiary
Holding Corporation ("Holdings, and together with AHP, the "Payees"), the
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principal sum of Two Hundred Seventy Nine Million Four Hundred Seventeen
Thousand and Nine Hundred Eighty-two Dollars ($279,417,982), in cash in
immediately available funds, on the dates hereinafter specified, and to pay
interest on the unpaid principal amount thereof in like money and funds,
for the period commencing on the date hereof until the principal amount of
this Note shall be paid in full, at the rates per annum and on the dates
provided herein.
2. As used herein, the following terms shall have the following meanings:
"Bankruptcy Code" shall mean the United States Bankruptcy Code of 1978, as
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amended (as now or hereafter in effect).
"Business Day" shall mean any day on which commercial banks are not
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authorized or required to close in the City of New York.
"Default" or "Event of Default" shall have the meanings given such terms in
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Paragraph 6 hereof.
"Dollars" or "$" shall mean lawful money of the United States of America.
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"Indebtedness" shall mean, as to any Person: (i) indebtedness created,
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issued or incurred by such Person for borrowed money (whether by loan or
the issuance and sale of debt securities); (ii) non-contingent obligations
of such Person to pay the deferred purchase or acquisition price of
property or services, other than trade accounts payable arising, and
accrued expenses incurred, in the ordinary course of business so long as
such trade accounts payable are payable within 90 days of the date the
respective goods are delivered or respective services rendered; (iii)
indebtedness of others secured by a security interest, mortgage, lien,
encumbrance, collateral assignment or right of any third party in or of the
property of such Person, whether or not the respective indebtedness so
secured has been assumed by such Person; (iv) obligations of such Person in
respect of letters of credit or similar instruments issued or accepted by
banks and other financial institutions for the account of such Person; (v)
capital lease obligations of such Person; and (vi) indebtedness of others
guaranteed by such Person or for which such Person may be, or may become,
liable.
"Insolvency Event" with respect to any Person shall mean that, and shall
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have occurred if:
(a) the Person shall: (1) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its property;
(2) make a general assignment for the benefit of its creditors;
(3) commence a voluntary case under the Bankruptcy Code; (4) file a
petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts; (5) fail to controvert in a timely manner and
appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code; or (6)
take any corporate action for the purpose of effecting any of the
foregoing;
(b) a proceeding or case shall be commenced, without the application or
consent of the Person, in any court of competent jurisdiction,
seeking: (1) its liquidation, reorganization, dissolution or
winding-up, or the composition or readjustment of its debts; (2) the
appointment of a trustee, receiver, custodian, liquidator or the like
of the Person of all or any substantial part of its assets; or (3)
similar relief in respect of the Person under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect,
for a period of sixty (60) or more days; or
(c) an order for relief against the Person shall be entered in an
involuntary case under the Bankruptcy Code.
"Interest Payment Date" shall mean January 11, 2002.
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"Interest Rate" shall mean an annual rate of interest equal to the rate
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publicly announced by JPMorgan Chase Bank in New York, New York as its
30-day LIBOR rate in effect on the date hereof plus 25 basis points.
Interest shall be calculated daily on the basis of a year of 360 days and
the actual number of days for which interest is due.
"Note" shall mean this Secured Promissory Note.
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"Obligations" shall mean any and all liabilities, obligations, covenants,
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agreements and payments of or required to be made by Borrower under or
pursuant to this Note and the Pledge Agreement.
"Person" shall mean any individual, corporation, company, voluntary
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association, partnership, joint venture, trust, unincorporated organization
or government (or any agency, instrumentality or political subdivision
thereof).
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"Pledge Agreement" shall mean the Pledge Agreement dated as of the date
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hereof between Borrower and Payees.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
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November 6, 2001, as amended (as amended, the "Purchase Agreement"), by
and among the Payees and Borrower with respect to the issued and
outstanding shares of capital stock of Greenwich Holdings Inc.
"Subsidiary" shall mean, with respect to any Person, any other Person
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of which at least a majority of the outstanding shares of stock or
other ownership interests having by the terms thereof ordinary voting
power to elect a majority of the board of directors or other similar
management body of such other Person (irrespective of whether or not at
the time stock or other ownership interests of any other class or
classes of such other Person shall have or might have voting power by
reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by such first Person or one or more of
the Subsidiaries of such first Person.
3. (a) The principal amount of this Note shall mature and be payable in full,
on January 11, 2002.
(b) The principal amount of this Note may be prepaid by Borrower
in whole or in part at any time and from time to time, without
premium or penalty, provided that all accrued and unpaid
interest on the principal amount of this Note being prepaid
shall have been paid in full.
4. (a) Interest shall be payable on the principal amount of this Note
outstanding from time to time at a rate equal to the Interest Rate
during the period from and including the date hereof and payable, in
arrears (calculated on the basis of a 360 day year), on January 11,
2002.
(b) Any principal amount hereof which is not paid when due (whether at the
stated maturity, by acceleration or otherwise), shall bear interest
during the period from and including the date due to the date of
payment in full at the rate per annum equal to the Interest Rate, both
before and after judgment.
5. Borrower hereby represents and warrants to Payees, as follows:
(a) Borrower 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.
(b) Borrower has full corporate power and authority to enter into the
Note and the Pledge Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by
Borrower of this Note have been duly
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authorized by all requisite corporate action on the part of Borrower.
This Note has been duly executed and delivered by Xxxxxxxx, and
constitutes a valid and binding obligation of Borrower, enforceable in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally or by general equitable
principles.
(c) The execution, delivery and performance by Borrower of this Note do
not and will not contravene or conflict with (i) the articles of
incorporation or by-laws of Borrower; (ii) in any material respect,
any mortgage, deed of trust, lease, note, contract, agreement, bond,
indenture, license, permit or trust to which Borrower or any of its
Subsidiaries is a party; or (iii) in any material respect, any
judgment, order, writ, injunction or decree of any court, governmental
body, governmental authority, or arbitrator, to which Borrower or any
of its Subsidiaries is a party, that, in any case, would prevent or be
violated by, or under which there would be a default as a result of,
the execution, delivery and performance by Borrower of this Note and
the consummation of the transactions contemplated hereby. No material
consent, approval or authorization of or declaration or filing with
any Person or governmental authority is required for the valid
execution, delivery and performance by Borrower of this Note and the
consummation of the transactions contemplated hereby.
6. If one or more of the following events (herein called "Events of Default")
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shall occur:
(a) Borrower shall default in the payment when due of any principal of or
interest on this Note; or
(b) Borrower shall default in the payment when due of any other amount
payable by it under this Note or of any other monetary Obligation, and
such default in payment shall continue unremedied for a period of
three (3) Business Days after notice thereof by Payees to Borrower; or
(c) Borrower shall default in the performance of any of its Obligations
(other than Obligations to pay money), and such default shall continue
unremedied for a period of ten (10) calendar days after notice thereof
by Payees to Borrower; or
(d) an Insolvency Event with respect to Borrower or any of its
Subsidiaries; or
(e) the occurrence of any "default" or "event of default" under any
agreement, indenture or instrument evidencing or governing
Indebtedness of Borrower in a principal amount outstanding of at
least $25,000,000 in the aggregate for Borrower;
thereupon,
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(x) in the case of an Event of Default (other than an Insolvency Event),
Payees may, by notice to Borrower, declare the principal amount then
outstanding of, and the accrued interest on, this Note and all other
amounts payable by Borrower under this Note to be forthwith due and
payable, whereupon such amounts shall be immediately due and payable
without presentment, demand, protest or other formalities of any kind,
all of which are hereby waived by Xxxxxxxx; and
(y) in the case of the occurrence of any Insolvency Event, the principal
amount then outstanding of, and the accrued interest on, this Note
and all other amounts payable by Borrower under this Note shall be
automatically immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby
waived by Borrower.
7. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK (OTHER THAN THE CHOICE OF LAW PRINCIPLES
THEREOF).
8. Any action, suit or other proceeding initiated by Payees to enforce this
Note may be brought in any Federal or state court in the State of New York,
as Payees shall elect, having jurisdiction over the subject matter thereof.
Borrower hereby submits itself to the jurisdiction of any such court and
irrevocably appoints Xxxxxxxx's Chief Financial Officer at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 as agent for service of process, and
agrees that service of process on Borrower in any such action, suit or
proceeding may be effected by certified mail/return receipt requested
addressed to Xxxxxxxx's Chief Financial Officer at the foregoing address.
9. All notices, demands, requests or other communications that are required or
permitted hereunder shall be in writing and sufficient if delivered
personally, sent by telecopier, or sent by Federal Express or by registered
or certified mail, postage prepaid, to the address or telecopier number, as
the case may be, as follows:
If to Payees:
American Home Products Corporation
Five Giralda Farms
Madison, New Jersey 07940
Attn: Executive Vice President and General Counsel
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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If to Borrower:
Immunex Corporation
00 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Telecopier No: (000) 000-0000
Telephone No.: (000) 000-0000
All such notices or other communications shall be deemed to have been given
on the date transmitted by telecopier or personally delivered, or, in the
case of notice or communication sent by Federal Express, one (1) day after
the date deposited with Federal Express, or, in the case of notice or
communication sent by registered or certified mail, seven (7) days after
the date deposited in the mails, in each case given or addressed as
aforesaid. Any party may by notice to each of the other parties change the
address to which notice or other communications to it are to be delivered
or mailed.
10. Any waiver of any term or condition of this Note, or any amendment or
supplementation of this Agreement, shall be effective only if in writing. A
waiver of any breach or failure to enforce any of the terms or conditions
of this Agreement shall not in any way affect, limit or waive a party's
rights hereunder at any time to enforce strict compliance thereafter with
every term or condition of this Agreement.
11. Borrower shall pay on demand all costs and expenses (including without
limitation reasonable legal fees) incurred by Payees in connection with the
enforcement of this Note, and, upon such demand by Payees, such costs and
expenses shall become Obligations of Borrower under this Note.
12. The Obligations of Borrower hereunder (whether for the payment of principal
and interest or otherwise, and whether upon maturity or acceleration) shall
be due, payable and performable by Borrower without the necessity of
presentment, demand, notice, protest or other formalities of any kind, all
of which are hereby waived by Borrower; provided that the foregoing shall
in no way be deemed to limit the obligation of Payees to provide notice of
default under Paragraph 6(a) hereof. Xxxxxxxx agrees to pay all amounts
owing under this Note without set-off, counterclaim, or defense of any
nature whatsoever and, in any litigation arising out of or relating to this
Note or to the payment of any portion thereof in which the holder of this
Note and Borrower shall be adverse parties, Borrower hereby waives the
right to interpose any set-off, counterclaim, or defense whatsoever (other
than the defense of actual payout).
13. This Note and the rights and obligations hereunder shall not be assignable
or transferable by the Borrower or the Payees, provided, however, that
either Payee may assign its rights and obligations hereunder to an
Affiliate of such Payee (as the term "Affiliate" is defined
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in the Purchase Agreement). Any attempted assignment in violation of this
Section 13 shall be void.
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In witness whereof, the undersigned has executed and delivered this Note,
in the State of Washington, as of the 1st day of January, 2002.
Attest: IMMUNEX CORPORATION
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxx
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Xxxxxx X. Xxxxx Xxxxx X. Xxxx
Residency at Seattle, WA Chief Financial Officer and
Executive Vice President
[Notary Seal]
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