EXHIBIT 10.1
EXECUTION COPY
STOCK OPTION AGREEMENT dated as of March 26, 2001 (this
"Agreement"), by and between ALZA Corporation, a Delaware
corporation ("Issuer"), and Xxxxxxx & Xxxxxxx, a New Jersey
corporation ("Grantee").
RECITALS
A. Grantee, Express Merger Sub Inc., a Delaware corporation and
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"), 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 47,466,356 shares (as such number may be adjusted pursuant to
Section 6, the "Option Shares") of common stock, par value $0.005 per share, of
Issuer (the "Issuer Common Stock") at a purchase price of $41.84 per Option
Share (as such price may be adjusted pursuant to Section 6, the "Purchase
Price") provided, however, that in no event may the number of Option Shares
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exceed 19.9% of the issued and outstanding shares of Issuer Common Stock at the
time of exercise without giving effect to the issuance of Option Shares.
2. Exercise of Option. (a) Subject to the provisions of Section
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2(c), Grantee may exercise the Option, with respect to any or all of the Option
Shares, at any time or times after the occurrence of any event as a result of
which 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
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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 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 the Termination Fee following such
termination upon the occurrence of certain events, in which case the Option will
not terminate until the later of (x) 10 business days following the time such
Termination Fee becomes payable and (y) the expiration of the period in which
Grantee has such right to receive the 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
violate any law or regulation to which Issuer is subject (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, Grantee shall 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 shall specify 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 below) 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"), which,
subject to the following sentence, shall not be earlier than three business days
nor later than 10 business days from the Notice Date for the closing of such
purchase (an "Option Closing"). Any Option Closing shall 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 clause (ii) of the
proviso to the first sentence of Section 2(a).
(c) Notwithstanding anything to the contrary contained herein, any
exercise of the Option and purchase of
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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 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 commercially reasonable efforts to
assist Grantee in seeking the Regulatory Approvals.
In the event (i) Grantee receives 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 stockholder 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 stockholder rights plan then in effect.
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(c) Certificates representing 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 STOCK OPTION AGREEMENT DATED AS OF MARCH 26,
2001, A COPY OF WHICH MAY BE OBTAINED FROM THE SECRETARY OF ALZA
CORPORATION, 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 an 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
issuable pursuant to Section 6
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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 issuable 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 stockholder of
Issuer.
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 or reduction, it equals
the same percentage of the aggregate number of shares of Issuer Common Stock
issued and outstanding after giving effect to such issuance or reduction as
immediately prior to such issuance or reduction, in each case without giving
effect to any shares subject to the Option.
(b) Without limiting the parties' relative rights and obligations
under the Merger Agreement, in the event
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that Issuer enters into an agreement (i) to consolidate with 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 shall 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 in full with
respect to all Option Shares then purchasable 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 on a Purchase Event
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
New York Stock Exchange, Inc. ("NYSE") Composite Transactions Tape (or, if not
listed on the NYSE, 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 (Northeast edition), or, if
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not reported therein, as reported in any other authoritative
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source) (the "Closing Price") and (ii) the Purchase Price. Notwithstanding the
termination of the Option, Grantee will be entitled to exercise its rights under
this Section 6(c) if Grantee 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 defined below)
exceed in the aggregate $180,000,000 (such amount, the "Profit Limit") and, if
any payment to be made to Grantee otherwise would cause the Profit Limit to be
exceeded, Grantee, at its election and in its sole discretion, shall (i) reduce
the number of shares of Issuer Common Stock subject to the Option, (ii) deliver
to Issuer for cancellation Option Shares previously purchased by Grantee, (iii)
pay cash to Issuer or (iv) take any combination of the foregoing actions, so
that the Total Option Profit shall not exceed the Profit Limit after taking into
account all the foregoing actions taken by Grantee.
(b) Notwithstanding any other provision of this Agreement, the 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 defined
below) that would exceed in the aggregate the Profit Limit and, if the Notional
Total Option Profit otherwise would exceed such amount, Grantee, at its election
and in its sole discretion, shall on or prior to the date of exercise (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 or (iv) take any combination of the foregoing
actions, so that the Notional Total Option Profit shall not exceed the Profit
Limit after taking into account all the foregoing actions taken by Grantee,
provided that this paragraph (b) shall not be construed as to restrict any
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exercise of the Option that is not prohibited hereby on any subsequent date.
(c) As used herein, 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 aggregate Purchase Price and any cash paid by
Grantee to Issuer pursuant to Section 7(a)(iii) or Section 7(b)(iii), as the
case may be.
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(d) As used herein, 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 of
the Option and (ii) Total Option Profit determined under paragraph (c) above
with respect to (x) such number of shares of Issuer Common Stock as to which
Grantee proposes to exercise the Option and (y) all other shares of Issuer
Common Stock held by Grantee and its Affiliates as of such date that were
acquired by Grantee or its Affiliates pursuant to a prior exercise of the
Option, assuming that all such shares were sold for cash at the closing market
price for the 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
The Nasdaq National Market ("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 agreed upon in good faith by the
parties or, in the absence of such agreement, 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 investment banking firm, and
those firms shall select a third nationally recognized independent
investment banking firm, which third firm shall make such determination.
8. Registration Rights. Issuer will, if requested by Grantee at any
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time and from time to time within two 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 ("demand
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
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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 its
commercially 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 5% of the then-outstanding voting power of Issuer. Issuer will use its
commercially 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 150 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 90 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 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 (a "Piggyback Registration"), and such
participation will not affect the obligation of Issuer to effect demand
registration statements for Grantee under this Section 8; provided that, if the
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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
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offering, Issuer will include only that portion of the shares requested to be
included therein by Grantee that may, in the written opinion of the managing
underwriters, 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. Issuer may withdraw any
Piggyback Registration without the consent of Grantee.
9. Transfers. Shares of Issuer Common Stock acquired by Grantee
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pursuant to an exercise of the Option may not be sold, assigned, 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 5% of the then-
outstanding voting power of the Issuer; provided, however, that Grantee shall be
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permitted to sell any shares of Issuer Common Stock acquired pursuant to an
exercise of the Option 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 the Issuer Common Stock or any other securities to
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be acquired upon exercise of the Option are then listed on the NYSE (or any
other national securities exchange or approved for quotation on any national
securities quotation system), Issuer, upon the request of Grantee, shall
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 NYSE (or any such
other national securities exchange or file an application to have approved for
quotation on any such national securities quotation system) and will use its
commercially reasonable efforts to obtain approval of such listing (or
quotation) 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.
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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 State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflict of laws
thereof.
(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 Grantee 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
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Grantee, but no such assignment shall relieve Grantee of any of its obligations
hereunder. Any assignment or delegation in violation of the preceding sentence
shall 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 shall 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) Specific Enforcement; Consent to Jurisdiction. The parties agree
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that irreparable damage would 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 shall 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 State of Delaware or in any state court located in the State of
Delaware, 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 State of Delaware or any state court located in the State of
Delaware 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 State of
Delaware or a state court located in the State of Delaware.
(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
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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.
(k) Defined Terms. All terms used but not defined herein shall have
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the meanings ascribed to such terms in the Merger Agreement.
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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.
ALZA CORPORATION,
by /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Chairman and
Chief Executive Officer
XXXXXXX & XXXXXXX,
by /s/ X.X. Xxxxxx
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Name: X.X. Xxxxxx
Title: Chairman and
Chief Executive Officer
