EXHIBIT 99.6
RELEASE AND AGREEMENT dated as of July 24,
2003 (this "Release and Agreement"), among IGEN
International, Inc., a Delaware corporation (the
"Company"), IGEN Integrated Healthcare, LLC, a
Delaware limited liability company and a wholly owned
subsidiary of the Company ("Newco"), and each company
listed on the signature pages hereto under the
heading "Related Companies" (each, a "Related
Company" and collectively, the "Related Companies").
WHEREAS Roche Holding Ltd, a joint stock company organized
under the laws of Switzerland ("R Company"), 66 Acquisition Corporation II, a
Delaware corporation and a wholly owned subsidiary of R Company ("Sub"), the
Company and Newco have entered into an Agreement and Plan of Merger dated as of
July 23, 2003, (the "Merger Agreement"), providing for the Merger (as defined in
the Merger Agreement);
WHEREAS simultaneously with the execution and delivery of the
Merger Agreement, the Company and Newco are entering into an agreement (the
"Restructuring Agreement") pursuant to which, prior to the Effective Time (as
defined in the Merger Agreement), the Restructuring (as defined in the
Restructuring Agreement) will be effected;
WHEREAS simultaneously with the execution and delivery of the
Merger Agreement, R Company, Parent, the Company and Newco are entering into an
agreement (the "Post-Closing Covenants Agreement") that sets forth certain
agreements that will govern certain matters that may arise following the
Effective Time;
NOW, THEREFORE, in consideration of the foregoing, the parties
hereto hereby agree as follows:
ARTICLE I
Mutual Releases
SECTION 1.01. Mutual Releases. In consideration of the mutual
releases, covenants, agreements, rights and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
effective as of the Release Time (as defined below), the Company, as to itself
and its past, present and future affiliates (other than any Newco Company (as
defined in the Restructuring Agreement)), and its and their respective
successors, predecessors, assigns, heirs, officers, directors, employees,
consultants and trustees, on the one hand (in each case, solely in their
capacities as such), and the Related Companies, as to themselves and their past,
present and future affiliates, and their respective successors, predecessors,
assigns, heirs, officers, directors, employees, consultants and trustees, on the
other hand (in each case, solely in their capacities as such), hereby (a)
releases, acquits and forever discharges the other and its and their past,
present and future affiliates, and its and their respective successors,
predecessors, assigns, heirs, officers, directors, employees, consultants and
trustees (in
each case, solely in their capacities as such), of and from the Released Matters
(as defined below) and (b) agrees not to bring any claim, suit, action,
arbitration, inquiry, investigation or other proceeding of any nature by or
before any arbitrator or Governmental Entity (as defined in the Merger
Agreement) or similar person or body (each, an "Action") against the other and
its and their past, present and future affiliates and its and their respective
successors, predecessors, assigns, heirs, officers, directors, employees,
consultants and trustees (in each case, solely in their capacities as such)
related to or arising out of the Released Matters; provided, however, that this
Release and Agreement shall not (i) affect any person's right to enforce this
Release and Agreement, any Transaction Agreement (as defined in the Merger
Agreement), any Commercial Agreement (as defined in the Merger Agreement), any
Newco I/R Agreement (as defined in the Restructuring Agreement) or any provision
herein or therein in accordance with its terms, (ii) relieve Newco or any
Related Company from the obligation to pay any amounts accrued or due and
payable under any Related Company Agreement (as defined in Section 2.02), (iii)
apply to any pursuit of any Action against any person other than in connection
with a Released Matter, (iv) be, or be construed as, a grant to the Company (or
any affiliate thereof (other than any Newco Company)) of a license, express or
implied, any freedom to operate, or any covenant not to xxx under any
intellectual property owned by, licensed to, or otherwise held at the Effective
Time by any Related Company; or (v) be, or be construed as, a grant to any
Related Company (or any affiliate thereof) of a license, express or implied, any
freedom to operate, or any covenant not to xxx under any intellectual property
owned by, licensed to, or otherwise held at the Effective Time by the Company or
any Newco Company.
SECTION 1.02. Reimbursement. In the event of any Action among
the parties to this Release and Agreement (including, for purposes of this
Section 1.02, affiliates, successors, assigns, heirs, officers, directors,
employees, consultants or trustees that are third party beneficiaries under this
Release and Agreement) in which a party to such Action (the "Prevailing Party")
obtains a final and nonappealable order of a court of competent jurisdiction
that provides or states that the other party breached Section 1.01, then the
Prevailing Party shall be entitled to reimbursement from the other party of its
legal fees and expenses incurred in such Action.
SECTION 1.03. Certain Agreements. (a) The Company and each of
the Related Companies hereby agree that as part of the Restructuring, each
Related Company Agreement that is not a written agreement executed on behalf of
each of the parties thereto shall be memorialized in writing and executed on
behalf of each of the parties thereto. In furtherance and not in limitation of
Section 1.05 (a), each of the Related Companies acknowledges that, pursuant to
the Restructuring Agreement and as part of the Restructuring, all of the
Company's rights under and in respect of the Related Company Agreements shall be
assigned to, and all of the Company's Liabilities under and in respect of the
Related Company Agreements will be assumed by, Newco immediately prior to the
Effective Time (the "Related Company Transfer").
(b) Each of the Related Companies hereby consents to the
Related Company Transfer and, as of the Release Time, except as otherwise
expressly provided in Section 1.01, unconditionally releases the Company from
any and all obligations,
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duties and Liabilities (express and implied) under the Related Company
Agreements whether arising before, at or after the Related Company Transfer.
Each of the Related Companies expressly agrees to perform its obligations,
duties and Liabilities (express or implied) under the Related Company Agreements
in favor of Newco, and Newco expressly agrees to assume and perform the
Company's obligations, duties and liabilities (express or implied) under the
Related Company Agreements in favor of the Related Companies. Each of the
foregoing is conditioned upon the consummation of the Related Company Transfer,
shall occur without any further action by any party, and, together with the
Related Company Transfer, shall have the effect of novating and amending the
Related Company Agreements.
(c) The Company, Newco, and each of the Related Companies
accordingly agree that as of and with effect from the Related Company Transfer
each of the Related Company Agreements will no longer create or confer any
rights or obligations on or as to the Company (or its affiliates (other than any
Newco Company)) but will continue among the parties thereto (other than the
Company) and Newco on the same terms and conditions as those stated in such
Related Company Agreement. The Company, Newco and each of the Related Companies
agree to amend and restate each such Related Company Agreement to reflect such
novation.
SECTION 1.04. Representations and Warranties. Each of (x) the
Related Companies represents and warrants, severally and not jointly, to the
Company and Newco and (y) the Company and Newco represents and warrants
severally and not jointly, to each of the Related Companies, in each case as of
the date hereof and as of the Effective Time, that:
(a) Organization, Standing and Power. Such person is duly
incorporated or formed, validly existing and in good standing under the
laws of the state of its incorporation or formation, as applicable and
has all corporate or limited liability company powers, as applicable,
governmental licenses, authorizations, permits, consents and approvals,
except for such governmental licenses, authorizations, permits,
consents and approvals the failure of which to have or obtain,
individually or in the aggregate, would not reasonably be expected to
have a material adverse effect on the business of such person and such
person's subsidiaries, taken as a whole.
(b) Authority; Execution and Delivery; Enforceability. Such
person has all requisite corporate or limited liability company power
and authority, as applicable, to execute and deliver this Release and
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery by such person of this Release and Agreement and
the consummation by such person of the transactions contemplated hereby
has been duly authorized by all necessary corporate or limited
liability company action on the part of such person. Such person has
duly executed and delivered this Release and Agreement, and, assuming
due execution and delivery hereof by each other party hereto, this
Release and Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
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(c) No Conflicts. The execution and delivery by such person of
this Release and Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof
will not, conflict with, or result in any violation of or default (with
or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancelation or acceleration of any obligation or
to loss of a material benefit under, or result in the creation of any
lien upon any of the properties or assets of such person or any
subsidiary of such person under, any provision of (i) the charter,
organizational or formation documents of such person, (ii) any
contract, lease, license, indenture, note, bond, agreement, permit,
concession, franchise or other instrument (a "Contract") to which such
person or any subsidiary of such person is a party or by which their
respective properties or assets is bound or (iii) subject to the
filings and other matters referred to in Section 1.06(d), any judgment,
order or decree (a "Judgment") or statute, law, ordinance, rule or
regulation whether foreign or domestic applicable to such person or any
subsidiary of such person or their respective properties or assets,
other than, in the case of clauses (ii) and (iii) above, any such items
that, individually or in the aggregate, would not reasonably be
expected to materially impair the ability of such person or any
subsidiary of such person to perform its obligations under this Release
and Agreement or consummate the transactions contemplated hereby
(d) No Consents. No consent, approval, license, permit, order
or authorization of, or registration, declaration or filing with, or
permit from, any Governmental Entity, is required to be obtained or
made by such person or any subsidiary of such person in connection with
the execution, delivery and performance of this Release and Agreement
or the consummation of the transactions contemplated hereby, other than
such items that the failure of which to obtain or make, individually or
in the aggregate, would not reasonably be expected to materially impair
the ability of such person or any subsidiary of such person to perform
its obligations under this Release and Agreement or consummate the
transactions contemplated hereby.
ARTICLE II
Miscellaneous and General
SECTION 2.01. Notices. All notices, requests, claims, demands
and other communications under this Release and Agreement shall be in writing
and shall be deemed given upon receipt by the parties at the following addresses
(or at such other address for a party as shall be specified by like notice) of a
fax followed by delivery of such notice by overnight courier of an international
reputation:
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(a) if to Newco or, prior to the Effective Time, the Company,
to
IGEN Integrated Healthcare, LLC
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
(b) if to the Related Companies, to
Wellstat Therapeutics Corporation
000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Legal Counsel
Fax: (000) 000-0000
SECTION 2.02. Definitions. Unless otherwise noted, terms used
but not defined in this Release and Agreement shall have the meaning set forth
in the Merger Agreement. In addition, the following terms shall have the
following meanings:
An "affiliate" of any person means another person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person. For the
avoidance of doubt, (a) none of the Related Companies, MSD, MST, JW and JW
Consulting is an affiliate of the Company or Newco for purposes of this Release
and Agreement and (b) none of the Company, Newco, MSD, MST, JW and JW Consulting
is an affiliate of any of the Related Companies for purposes of this Release and
Agreement.
"Related Company Agreements" means all Contracts, promises,
commitments or understandings (whether oral or written) between the Company or
any of its affiliates, on the one hand, and any Related Company or any of its
affiliates, on the other hand.
"Release Time" means the time immediately prior to the
Effective Time.
"Released Matter" means any and all debts, demands, Actions,
causes of action, suits, accounts, covenants, Contracts, agreements, torts,
damages and any and all claims, defenses, offsets, Judgments, demands and
Liabilities (as defined in the Merger Agreement) whatsoever, of every name and
nature, both at law and in equity, known or unknown, suspected or unsuspected,
accrued or unaccrued, which have been or could have been asserted, relating to,
based upon or arising from, or in connection with any relationship between the
Company or any of its affiliates at or prior to the Release Time, on the one
hand, and any Related Company or any of its affiliates, on the other hand, or
any Related Company Agreement, in each case in existence at or prior to the
Release Time.
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SECTION 2.03. Interpretation. When a reference is made in this
Release and Agreement to a Section, Exhibit, Schedule or party, such reference
shall be to a Section of, or an Exhibit, Schedule or party to, this Release and
Agreement unless otherwise indicated. The headings contained in this Release and
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Release and Agreement. Whenever the words
"include", "includes", or "including" are used in this Release and Agreement,
they shall be deemed to be followed by the words "without limitation". The words
"hereof", "herein", "hereby" and "hereunder" and words of similar import when
used in this Release and Agreement shall refer to this Release and Agreement as
a whole and not to any particular provision of this Release and Agreement. The
words "date hereof" shall refer to the date of this Release and Agreement. The
term "or" is not exclusive. The word "extent" in the phrase "to the extent"
shall mean the degree to which a subject or other thing extends, and such phrase
shall not mean simply "if". The definitions contained in this Release and
Agreement are applicable to the singular as well as the plural forms of such
terms. Any agreement or instrument that is referred to herein means such
agreement or instrument as from time to time amended, modified or supplemented.
References to a person are also to its permitted successors and assigns.
SECTION 2.04. Severability. If any term or other provision of
this Release and Agreement is invalid, illegal or incapable of being enforced by
any applicable Law (as defined in the Merger Agreement), or public policy, all
other conditions and provisions of this Release and Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Release and Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
SECTION 2.05. Counterparts. This Release and Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties. Each
party need not sign the same counterpart.
SECTION 2.06. Entire Agreement; Third Party Beneficiaries.
This Release and Agreement constitutes the entire agreement, and supersedes all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof. Nothing contained in this Release and
Agreement is intended to confer upon any person other than the parties hereto
any benefit, right or remedy under or by reason of this Release and Agreement,
except the persons referred to in Sections 1.01 and 1.02, who shall be third
party beneficiaries of this Release and Agreement.
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SECTION 2.07. Governing Law. This Release and Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York, regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
SECTION 2.08. Assignment. Neither this Release and Agreement
nor any of the rights, interests or obligations under this Release and Agreement
shall be assigned, in whole or in part, by operation of law or otherwise by any
of the parties without the prior written consent of the other parties. Any
purported assignment without such consent shall be void; provided, however, the
parties acknowledge and agree that the conversion of Newco in accordance with
Section 2.01 of the Restructuring Agreement and the continuation of Newco as a
result thereof shall be deemed not to be an assignment and shall not require any
consent of any party. Subject to the preceding sentences, this Release and
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
SECTION 2.09. Enforcement; Consent to Service of Process. The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Release and Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Release and Agreement and to enforce specifically the terms and
provisions of this Release and Agreement in any New York state court or any
Federal court located in the State of New York, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (a) consents to submit itself to the personal jurisdiction
of any New York state court or any Federal court located in the State of New
York in the event any dispute arises out of this Release and Agreement or any
transaction contemplated in this Release and Agreement, (b) agrees that it will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (c) agrees that it will not bring any
action relating to this Release and Agreement or any transaction contemplated in
this Release and Agreement in any court
SECTION 2.10. Modification or Amendment. The parties hereto
may modify or amend this Release and Agreement only by written agreement
executed and delivered by duly authorized officers of the respective parties. At
any time the parties hereto may waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party to any such
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Release and Agreement to
assert any of its rights under this Release and Agreement or otherwise shall not
constitute a waiver of such rights.
SECTION 2.11. Nonsurvival of Representations and Warranties.
None of the representations and warranties in this Release and Agreement shall
survive the Effective Time (as defined in the Merger Agreement). This Section
2.11 shall not limit any covenant or agreement of the parties which by its terms
contemplates performance after the Effective Time.
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SECTION 2.12. Termination. In the event the Merger Agreement
is terminated prior to the Effective Time, this Release and Agreement shall
become null and void.
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IN WITNESS WHEREOF, this Release and Agreement has been duly
executed and delivered as of July 24, 2003, by the duly authorized officers of
the parties hereto.
IGEN INTERNATIONAL, INC.,
by /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief
Operating Officer
IGEN INTEGRATED HEALTHCARE,
LLC,
by /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief
Operating Officer
Related Companies:
HYPERION CATALYSIS
INTERNATIONAL,
by /s/ Xxxxxx X. Xxxxxxxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chairman and Chief
Executive Officer
WELLSTAT BIOLOGICS
CORPORATION,
by /s/ Xxxxxx X. Xxxxxxxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chairman and Chief
Executive Officer
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WELLSTAT THERAPEUTICS
CORPORATION,
by /s/ Xxxxxx X. Xxxxxxxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chairman and Chief Executive
Officer
PROTEINIX CORPORATION,
by /s/ Xxxxxx X. Xxxxxxxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chairman and Chief Executive
Officer
INTEGRATED CHEMICAL
SYNTHESIZERS, INC.,
by /s/ Xxxxxx X. Xxxxxxxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chairman and Chief Executive
Officer
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