EXHIBIT 10
EXECUTION COPY
STOCK OPTION AGREEMENT dated as of July 20, 1999 (the
"Agreement"), by and between CENTOCOR, INC., a Pennsylvania
corporation ("Issuer"), and XXXXXXX & XXXXXXX, a New Jersey
corporation ("Grantee").
RECITALS
A. Grantee, Admiral Merger Corp., a wholly owned subsidiary of
Grantee ("Sub"), and Issuer have entered into an Agreement and Plan of Merger
dated as of the date hereof (the "Merger Agreement"; defined terms used but not
defined herein have the meanings set forth in the Merger Agreement), providing
for, among other things, the merger of Sub with and into Issuer, with Issuer as
the surviving corporation in the Merger and becoming a wholly owned subsidiary
of Grantee; and
B. As a condition and inducement to Grantee's willingness to enter
into the Merger Agreement, Grantee has requested that Issuer agree, and Issuer
has agreed, to grant Grantee the Option (as defined below).
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, Issuer
and Grantee agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth
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herein, Issuer hereby grants to Grantee an irrevocable option (the "Option") to
purchase up to 11,099,963 (as adjusted as set forth herein) shares (the "Option
Shares") of Common Stock, par value $.01 per share ("Issuer Common Stock"), of
Issuer at a purchase price of $61.00 per Option Share (the "Purchase Price").
2. Exercise of Option. (a) Grantee may exercise the Option, with
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respect to any or all of the Option Shares at any time or times, subject to the
provisions of Section 2(c), after the occurrence of any event as a result of
which the Grantee is entitled to receive the Termination Fee pursuant to Section
5.08(b) of the Merger Agreement (a "Purchase Event"); provided, however, that
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(i) except as provided in the last sentence of this Section 2(a), the Option
will terminate and be of no further force and effect upon the earliest to occur
of (A) the Effective Time, (B) 12 months after the first occurrence of a
Purchase Event, and (C) termination of the Merger Agreement in
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accordance with its terms prior to the occurrence of a Purchase Event, unless,
in the case of clause (C), Grantee has the right to receive a Termination Fee
following such termination upon the occurrence of certain events, in which case
the Option will not terminate until the later of (x) 12 months following the
time such Termination Fee becomes payable and (y) the expiration of the period
in which the Grantee has such right to receive a Termination Fee, and (ii) any
purchase of Option Shares upon exercise of the Option will be subject to
compliance with the HSR Act and the obtaining or making of any consents,
approvals, orders, notifications, filings or authorizations, the failure of
which to have obtained or made would have the effect of making the issuance of
Option Shares to Grantee illegal (the "Regulatory Approvals"). Notwithstanding
the termination of the Option, Grantee will be entitled to purchase the Option
Shares if it has exercised the Option in accordance with the terms hereof prior
to the termination of the Option and the termination of the Option will not
affect any rights hereunder which by their terms do not terminate or expire
prior to or as of such termination.
(b) In the event that Grantee is entitled to and wishes to exercise
the Option, it will send to Issuer a written notice (an "Exercise Notice"; the
date of which being herein referred to as the "Notice Date") to that effect
which Exercise Notice also specifies the number of Option Shares, if any,
Grantee wishes to purchase pursuant to this Section 2(b), the number of Option
Shares, if any, with respect to which Grantee wishes to exercise its Cash-Out
Right (as defined herein) pursuant to Section 6(c), the denominations of the
certificate or certificates evidencing the Option Shares which Grantee wishes to
purchase pursuant to this Section 2(b) and a date (an "Option Closing Date"),
subject to the following sentence, not earlier than three Business Days nor
later than 20 Business Days from the Notice Date for the closing of such
purchase (an "Option Closing"). Any Option Closing will be at an agreed
location and time in New York, New York on the applicable Option Closing Date or
at such later date as may be necessary so as to comply with the first sentence
of Section 2(a).
(c) Notwithstanding anything to the contrary contained herein, any
exercise of the Option and purchase of Option Shares shall be subject to
compliance with applicable laws and regulations, which may prohibit the purchase
of all the Option Shares specified in the Exercise Notice without first
obtaining or making certain Regulatory Approvals. In such event, if the Option
is otherwise exercisable and Grantee wishes to exercise the Option, the Option
may be exercised in accordance with Section 2(b) and Grantee shall
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acquire the maximum number of Option Shares specified in the Exercise Notice
that Grantee is then permitted to acquire under the applicable laws and
regulations, and if Grantee thereafter obtains the Regulatory Approvals to
acquire the remaining balance of the Option Shares specified in the Exercise
Notice, then Grantee shall be entitled to acquire such remaining balance.
Issuer agrees to use its reasonable efforts to assist Grantee in seeking the
Regulatory Approvals.
In the event (i) Grantee receives official notice that a Regulatory
Approval required for the purchase of any Option Shares will not be issued or
granted or (ii) such Regulatory Approval has not been issued or granted within
six months of the date of the Exercise Notice, Grantee shall have the right to
exercise its Cash-Out Right pursuant to Section 6(c) with respect to the Option
Shares for which such Regulatory Approval will not be issued or granted or has
not been issued or granted.
3. Payment and Delivery of Certificates. (a) At any Option Closing,
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Grantee will pay to Issuer in immediately available funds by wire transfer to a
bank account designated in writing by Issuer an amount equal to the Purchase
Price multiplied by the number of Option Shares to be purchased at such Option
Closing.
(b) At any Option Closing, simultaneously with the delivery of
immediately available funds as provided in Section 3(a), Issuer will deliver to
Grantee a certificate or certificates representing the Option Shares to be
purchased at such Option Closing, which Option Shares will be free and clear of
all Liens. If at the time of issuance of Option Shares pursuant to an exercise
of the Option hereunder, Issuer shall have issued any securities similar to
rights under a shareholder rights plan, then each Option Share issued pursuant
to such exercise will also represent such a corresponding right with terms
substantially the same as and at least as favorable to Grantee as are provided
under any such shareholder rights plan then in effect.
(c) Certificates for the Option Shares delivered at an Option Closing
will have typed or printed thereon a restrictive legend which will read
substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR SOLD
ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE
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STOCK OPTION AGREEMENT DATED AS OF JULY 20, 1999, A COPY OF WHICH MAY BE
OBTAINED FROM THE SECRETARY OF ADMIRAL, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES."
It is understood and agreed that (i) the reference to restrictions arising under
the Securities Act in the above legend will be removed by delivery of substitute
certificate(s) without such reference if such Option Shares have been registered
pursuant to the Securities Act, such Option Shares have been sold in reliance on
and in accordance with Rule 144 under the Securities Act or Grantee has
delivered to Issuer a copy of a letter from the staff of the SEC, or an opinion
of counsel in form and substance reasonably satisfactory to Issuer and its
counsel, to the effect that such legend is not required for purposes of the
Securities Act and (ii) the reference to restrictions pursuant to this Agreement
in the above legend will be removed by delivery of substitute certificate(s)
without such reference if the Option Shares evidenced by certificate(s)
containing such reference have been sold or transferred in compliance with the
provisions of this Agreement under circumstances that do not require the
retention of such reference.
4. Representations and Warranties of Issuer. Issuer hereby
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represents and warrants to Grantee as follows:
Authorized Stock. Issuer has taken all necessary corporate and other
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action to authorize and reserve and, subject to the expiration or
termination of any required waiting period under the HSR Act, to permit it
to issue, and, at all times from the date hereof until the obligation to
deliver Option Shares upon the exercise of the Option terminates, shall
have reserved for issuance, upon exercise of the Option, shares of Issuer
Common Stock necessary for Grantee to exercise the Option, and Issuer will
take all necessary corporate action to authorize and reserve for issuance
all additional shares of Issuer Common Stock or other securities which may
be issued pursuant to Section 6 upon exercise of the Option. The shares of
Issuer Common Stock to be issued upon due exercise of the Option, including
all additional shares of Issuer Common Stock or other securities which may
be issuable upon exercise of the Option or any other securities which may
be issued pursuant to Section 6, upon issuance pursuant hereto, will be
duly and validly issued, fully paid and nonassessable, and will be
delivered free and clear of all Liens, including without limitation any
preemptive rights of any shareholder of Issuer.
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5. Representations and Warranties of Grantee. Grantee hereby
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represents and warrants to Issuer that:
Purchase Not for Distribution. Any Option Shares or other securities
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acquired by Grantee upon exercise of the Option will not be transferred or
otherwise disposed of except in a transaction registered, or exempt from
registration, under the Securities Act.
6. Adjustment upon Changes in Capitalization, Etc. (a) In the event
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of any change in Issuer Common Stock by reason of a stock dividend, split-up,
merger, recapitalization, combination, exchange of shares, or similar
transaction, the type and number of shares or securities subject to the Option,
and the Purchase Price thereof, will be adjusted appropriately, and proper
provision will be made in the agreements governing such transaction, so that
Grantee will receive upon exercise of the Option the number and class of shares
or other securities or property that Grantee would have received in respect of
Issuer Common Stock if the Option had been exercised immediately prior to such
event or the record date therefor, as applicable. Subject to Section 1, and
without limiting the parties' relative rights and obligations under the Merger
Agreement, if any additional shares of Issuer Common Stock are issued after the
date of this Agreement (other than pursuant to an event described in the first
sentence of this Section 6(a)) or if the number of outstanding shares of Issuer
Common Stock is reduced, the number of shares of Issuer Common Stock subject to
the Option will be adjusted so that, after such issuance, it equals the same
percentage of the aggregate number of shares of Issuer Common Stock issued and
outstanding after giving effect to such issuance as immediately prior to such
issuance, in each case without giving effect to any shares subject to or issued
pursuant to the Option. In the event that Grantee, its Subsidiaries or any of
their respective pension or retirement plans (including, if applicable, the
related trust) owns on the date hereof or acquires after the date hereof any
shares of Issuer Common Stock ("Owned Issuer Common Stock") that, when
aggregated with the number of shares of Issuer Common Stock subject to the
Option, would exceed 19.9% of the number of shares of Issuer Common Stock then
issued and outstanding, then the number of shares of Issuer Common Stock subject
to the Option will be adjusted so that, when aggregated with the shares of Owned
Issuer Common Stock, it equals 19.9% of the number of shares of Issuer Common
Stock then issued and outstanding.
(b) Without limiting the parties' relative rights and obligations
under the Merger Agreement, in the event that Issuer enters into an agreement
(i) to consolidate with
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or merge into any Person, other than Grantee or one of its Subsidiaries, and
Issuer will not be the continuing or surviving corporation in such consolidation
or merger, (ii) to permit any Person, other than Grantee or one of its
Subsidiaries, to merge into Issuer and Issuer will be the continuing or
surviving corporation, but in connection with such merger, the shares of Issuer
Common Stock outstanding immediately prior to the consummation of such merger
will be changed into or exchanged for stock or other securities of Issuer or any
other Person or cash or any other property, or the shares of Issuer Common Stock
outstanding immediately prior to the consummation of such merger will, after
such merger, represent less than 50% of the outstanding voting securities of the
merged company, or (iii) to sell or otherwise transfer all or substantially all
of its assets to any Person, other than Grantee or one of its Subsidiaries,
then, and in each such case, the agreement governing such transaction will make
proper provision so that the Option will, upon the consummation of any such
transaction and upon the terms and conditions set forth herein, be converted
into, or exchanged for, an option with identical terms appropriately adjusted to
acquire the number and class of shares or other securities or property that
Grantee would have received in respect of Issuer Common Stock if the Option had
been exercised immediately prior to such consolidation, merger, sale, or
transfer, or the record date therefor, as applicable and make any other
necessary adjustments.
(c) If, at any time during the period commencing at the time the
Company consummates any Takeover Proposal and ending on the termination of the
Option in accordance with Section 2, Grantee sends to Issuer an Exercise Notice
indicating Grantee's election to exercise its right (the "Cash-Out Right")
pursuant to this Section 6(c), then Issuer shall pay to Grantee, on the Option
Closing Date, in exchange for the cancellation of the Option with respect to
such number of Option Shares as Grantee specifies in the Exercise Notice, an
amount in cash equal to such number of Option Shares multiplied by the
difference between (i) the average closing price, for the 10 trading days
commencing on the 12th trading day immediately preceding the Notice Date, per
share of Issuer Common Stock as reported on The Nasdaq National Market (or, if
not listed on The Nasdaq National Market, as reported on any other national
securities exchange or national securities quotation system on which the Issuer
Common Stock is listed or quoted, as reported in The Wall Street Journal
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(Northeast edition), or, if not reported thereby, any other authoritative
source) (the "Closing Price") and (ii) the Purchase Price. Notwithstanding the
termination of the Option, Grantee will
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be entitled to exercise its rights under this Section 6(c) if it has exercised
such rights in accordance with the terms hereof prior to the termination of the
Option.
7. Profit Limitations. (a) Notwithstanding any other provision of
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this Agreement, in no event shall the Total Option Profit (as hereinafter
defined) exceed in the aggregate $150,000,000 minus any Termination Fee actually
received by Grantee pursuant to the terms of the Merger Agreement (such amount,
the "Profit Limit") and, if any payment to be made to Grantee otherwise would
cause such aggregate amount to be exceeded, the Grantee, at its sole election,
shall either (i) reduce the number of shares of Issuer Common Stock subject to
this Option, (ii) deliver to Issuer for cancellation Option Shares previously
purchased by Grantee, (iii) pay cash to Issuer, (iv) deliver the undertaking
described in Section 7(f) or (v) any combination thereof, so that the Total
Option Profit shall not exceed the Profit Limit after taking into account the
foregoing actions.
(b) Notwithstanding any other provision of this Agreement, this Option
may not be exercised for a number of shares of Issuer Common Stock as would, as
of the date of exercise, result in a Notional Total Option Profit (as
hereinafter defined) which would exceed in the aggregate the Profit Limit and,
if it otherwise would exceed such amount, the Grantee, at its sole election,
shall on or prior to the date of exercise either (i) reduce the number of shares
of Issuer Common Stock subject to such exercise, (ii) deliver to Issuer for
cancellation Option Shares previously purchased by Grantee, (iii) pay cash to
Issuer, (iv) deliver the undertaking described in Section 7(f) or (v) any
combination thereof, so that the Notional Total Option Profit shall not exceed
the Profit Limit after taking into account the foregoing actions, provided that
this paragraph (b) shall not be construed as to restrict any exercise of the
Option that is not prohibited hereby on any subsequent date.
(c) As used herein and subject to Section 7(f), the term "Total Option
Profit" shall mean the aggregate amount (before taxes) of the following: (i)
any amount received by Grantee pursuant to the Cash-Out Right and (ii)(x) the
net consideration, if any, received by Grantee pursuant to the sale of Option
Shares (or any other securities into which such Option Shares are converted or
exchanged) to any unaffiliated party, valuing any non-cash consideration at its
fair market value (as defined below), less (y) the Exercise Price and any cash
paid by Grantee to Issuer
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pursuant to Section 7(a)(iii) or Section 7(b)(iii), as the case may be.
(d) As used herein and subject to Section 7(f), the term "Notional
Total Option Profit" with respect to any number of shares of Issuer Common Stock
as to which Grantee may propose to exercise the Option shall be the aggregate of
(i) the Total Option Profit determined under paragraph (c) above with respect to
prior exercises and (ii) Total Option Profit with respect to such number of
shares of Issuer Common Stock as to which Grantee proposes to exercise and all
other Option Shares held by Grantee and its affiliates as of such date, assuming
that all such shares were sold for cash at the closing market price for Issuer
Common Stock as of the close of business on the preceding trading day (less
customary brokerage commissions or underwriting discounts).
(e) As used herein, the "fair market value" of any non-cash
consideration consisting of:
(i) securities listed on a national securities exchange or traded on
NASDAQ shall be equal to the average closing price per share of such
security as reported on such exchange or NASDAQ for the five trading days
after the date of determination; and
(ii) consideration which is other than cash or securities of the form
specified in clause (i) above shall be determined by a nationally
recognized independent investment banking firm mutually agreed upon by the
parties within five business days of the event requiring selection of such
banking firm, provided that if the parties are unable to agree within two
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business days after the date of such event as to the investment banking
firm, then the parties shall each select one firm, and those firms shall
select a third nationally recognized independent investment banking firm,
which third firm shall make such determination.
(f) Total Option Profit and Notional Option Profit shall be reduced by
any amount that is subject to recapture by Issuer pursuant to Subchapter H of
the Pennsylvania Business Corporation Law if Grantee pays such amount or such
obligation has matured and Grantee acknowledges its liability. In addition, if
in connection with an exercise, Grantee elects, at its sole discretion, to
undertake to return to Issuer any profit realized by Grantee with respect to any
Option Shares covered by such exercise, if any, when realized (whether or not
subject to Subchapter H at the time of realization), then in all calculations of
Total Option
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Profit and Notional Total Option Profit, the Total Option Profit and Notional
Total Option Profit related to such Option Shares shall be zero. Any undertaking
delivered pursuant to the preceding sentence shall also include an undertaking
by Grantee to dispose of the related Option Shares within nine months after the
earliest of (i) the date of exercise or (ii) the later of (x) the first
anniversary of the termination of the Merger Agreement and (y) the first
anniversary of the date on which the Purchase Event occurred, or, if not legally
permitted to do so within such period, at such time as it is so legally
permitted, and to treat as part of the profits realized any dividends or other
distributions received with respect to such Option Shares.
8. Registration Rights. Issuer will, if requested by Grantee at any
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time and from time to time within three years of the exercise of the Option, as
promptly as practicable (but in no event later than 90 days after receipt of
such request) prepare and file up to three registration statements under the
Securities Act if such registration is necessary in order to permit the sale or
other disposition of any or all shares of securities that have been acquired by
or are issuable to Grantee upon exercise of the Option in accordance with the
intended method of sale or other disposition stated by Grantee, including a
"shelf" registration statement under Rule 415 under the Securities Act or any
successor provision, and Issuer will use its best efforts to qualify such shares
or other securities under any applicable state securities laws. Grantee agrees
to use reasonable efforts to cause, and to cause any underwriters of any sale or
other disposition to cause, any sale or other disposition pursuant to such
registration statement to be effected on a widely distributed basis so that upon
consummation thereof no purchaser or transferee will own beneficially more than
4.9% of the then-outstanding voting power of Issuer. Issuer will use reasonable
efforts to cause each such registration statement to become effective, to obtain
all consents or waivers of other parties which are required therefor, and to
keep such registration statement effective for such period not in excess of 180
calendar days from the day such registration statement first becomes effective
as may be reasonably necessary to effect such sale or other disposition. The
obligations of Issuer hereunder to file a registration statement and to maintain
its effectiveness may be suspended for up to 60 calendar days in the aggregate
if the Board of Directors of Issuer shall have determined that the filing of
such registration statement or the maintenance of its effectiveness would
require premature disclosure of material nonpublic information that would
materially and adversely affect Issuer or otherwise interfere with or
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adversely affect any pending or proposed offering of securities of Issuer or any
other material transaction involving Issuer. Any registration statement prepared
and filed under this Section 8, and any sale covered thereby, will be at
Issuer's expense except for underwriting discounts or commissions, brokers' fees
and the fees and disbursements of Grantee's counsel related thereto. Grantee
will provide all information reasonably requested by Issuer for inclusion in any
registration statement to be filed hereunder. If, during the time periods
referred to in the first sentence of this Section 8, Issuer effects a
registration under the Securities Act of Issuer Common Stock for its own account
or for any other stockholders of Issuer (other than on Form S-4 or Form S-8, or
any successor form), it will allow Grantee the right to participate in such
registration, and such participation will not affect the obligation of Issuer to
effect demand registration statements for Grantee under this Section 8; provided
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that, if the managing underwriters of such offering advise Issuer in writing
that in their opinion the number of shares of Issuer Common Stock requested to
be included in such registration exceeds the number which can be sold in such
offering, Issuer will include only the shares requested to be included therein
by Grantee that may be included therein without adversely affecting the success
of the offering. In connection with any registration pursuant to this Section
8, Issuer and Grantee will provide each other and any underwriter of the
offering with customary representations, warranties, covenants, indemnification,
and contribution in connection with such registration.
9. Transfers. The Option Shares may not be sold, assigned,
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transferred, or otherwise disposed of except (i) in an underwritten public
offering as provided in Section 8 or (ii) to any purchaser or transferee who
would not, to the knowledge of Grantee after reasonable inquiry immediately
following such sale, assignment, transfer or disposal, beneficially own more
than 4.9% of the then-outstanding voting power of the Issuer; provided, however,
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that Grantee shall be permitted to sell any Option Shares if such sale is made
pursuant to a tender or exchange offer that has been approved or recommended by
a majority of the members of the Board of Directors of Issuer (which majority
shall include a majority of directors who were directors as of the date hereof).
10. Listing. If Issuer Common Stock or any other securities to be
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acquired upon exercise of the Option are then listed on The Nasdaq National
Market (or any other national securities exchange or national securities
quotation system), Issuer, upon the request of Grantee, will
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promptly file an application to list the shares of Issuer Common Stock or other
securities to be acquired upon exercise of the Option on The Nasdaq National
Market (or any such other national securities exchange or national securities
quotation system) and will use reasonable efforts to obtain approval of such
listing as promptly as practicable.
11. Loss or Mutilation. Upon receipt by Issuer of evidence
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reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer will execute and deliver a new Agreement of like
tenor and date.
12. Miscellaneous. (a) Expenses. Except as otherwise provided in
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this Agreement or in the Merger Agreement, each of the parties hereto will bear
and pay all costs and expenses incurred by it or on its behalf in connection
with the transactions contemplated hereunder, including fees and expenses of its
own financial consultants, investment bankers, accountants, and counsel.
(b) Amendment. This Agreement may not be amended, except by an
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instrument in writing signed on behalf of each of the parties.
(c) Extension; Waiver. Any agreement on the part of a party to waive
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any provision of this Agreement, or to extend the time for performance, will be
valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise will not constitute a waiver of such rights.
(d) Entire Agreement; No Third-Party Beneficiaries. This Agreement,
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the Merger Agreement (including the documents and instruments attached thereto
as exhibits or schedules or delivered in connection therewith) and the
Confidentiality Agreement (i) constitute the entire agreement, and supersede all
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter of this Agreement, and (ii) except as
provided in Section 8.06 of the Merger Agreement, are not intended to confer
upon any Person other than the parties any rights or remedies.
(e) Governing Law. This Agreement will be governed by, and construed
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in accordance with, the laws of the Commonwealth of Pennsylvania, regardless of
the laws
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that might otherwise govern under applicable principles of conflict of laws
thereof; provided, however, that the laws of the respective states of
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incorporation of each of the parties hereto shall govern the relative rights,
obligations, powers, duties and other internal affairs of such party and its
Board of Directors.
(f) Notices. All notices, requests, claims, demands, and other
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communications under this Agreement shall be sent in the manner and to the
addresses set forth in the Merger Agreement.
(g) Assignment. Neither this Agreement, the Option nor any of the
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rights, interests, or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by Issuer or
Grantee without the prior written consent of the other, except that Parent may
assign, in its sole discretion, any of or all its rights, interests and
obligations under this Agreement to any direct or indirect wholly owned
Subsidiary of Parent, but no such assignment shall relieve Parent of any of its
obligations hereunder. Any assignment or delegation in violation of the
preceding sentence will be void. Subject to the first and second sentences of
this Section 12(g), this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
(h) Further Assurances. In the event of any exercise of the Option
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by Grantee, Issuer and Grantee will execute and deliver all other documents and
instruments and take all other actions that may be reasonably necessary in order
to consummate the transactions provided for by such exercise.
(i) Enforcement. The parties agree that irreparable damage would
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occur and that the parties would not have any adequate remedy at law in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court located in the
Commonwealth of Pennsylvania or in any state court located in the Commonwealth
of Pennsylvania, the foregoing being in addition to any other remedy to which
they are entitled at law or in equity. In addition, each of the parties hereto
(i) consents to submit itself to the personal jurisdiction of any Federal court
located in the Commonwealth of Pennsylvania or any state court located in
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the Commonwealth of Pennsylvania in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement, (ii) agrees
that it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, and (iii) agrees that it will
not bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than a Federal court sitting
in the Commonwealth of Pennsylvania or a state court located in the Commonwealth
of Pennsylvania.
(j) Severability. If any term or other provision of this Agreement
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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. 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 to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement to
be signed by their respective officers thereunto duly authorized as of the day
and year first written above.
CENTOCOR, INC.,
by
/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chief Executive
Officer
XXXXXXX & XXXXXXX,
by
/s/ X. X. Xxxxxx
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Name: X. X. Xxxxxx
Title: Vice Chairman
