STOCKHOLDERS AGREEMENT
Exhibit 99.1
| Execution Copy |
This
STOCKHOLDERS AGREEMENT, dated as of December 15, 2009, is between Facet Biotech
Corporation, a Delaware corporation (the “Company”), and
Biotechnology Value Fund, L.P., Biotechnology Value Fund II, L.P., BVF
Investments, L.L.C., Investment 10, L.L.C., BVF Partners L.P., BVF Inc. and Xxxx
X. Xxxxxxx (collectively, the “BVF
Entities”).
RECITALS:
WHEREAS,
as of the date hereof, the BVF Entities Beneficially Own (as defined below) an
aggregate of 3,683,521 shares of common stock, par value $0.01 per share, of the
Company (“Common
Stock”), including the associated rights to purchase shares of Series A
Preferred Stock of the Company (“Rights”) issued
pursuant to the Rights Agreement (as defined below), which represents
approximately 14.7% of the shares of Common Stock outstanding as of the date
hereof;
WHEREAS,
pursuant to the terms of the Rights Agreement, the Rights will become
exercisable under certain circumstances, including if a person becomes an
Acquiring Person (as defined in the Rights Agreement) by acquiring Beneficial
Ownership (as defined below) of 15% or more of the outstanding shares of Common
Stock; and
WHEREAS,
the BVF Entities desire to have the ability to purchase additional shares of
Common Stock and have requested that the Company amend the terms of the Rights
Agreement so as to permit the BVF Entities to purchase such shares without
causing the Rights to become exercisable, and the Board has determined that it
is in the best interest of the Company’s stockholders to enter into such an
amendment;
NOW,
THEREFORE, in consideration of the foregoing premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
ARTICLE
I
DEFINITIONS
Section
1.1. Certain Defined
Terms. As used herein, the following terms shall have the
following meanings:
“Acquiring Person”
shall have the meaning set forth in the Rights Agreement.
“Affiliate” and “Associate” shall have
the meaning set forth in the Rights Agreement.
“Agreement” shall mean
this Stockholders Agreement as it may be amended, supplemented, restated or
modified from time to time in accordance with the terms hereof.
“Beneficial Owner”,
“Beneficially
Own” and “Beneficial Ownership”
shall have the meaning set forth in the Rights Agreement.
“Board” shall mean the
Company’s board of directors.
“Business Day” shall
mean any day that is not a Saturday, a Sunday or other day on which banks are
required or authorized by law to be closed in New York, New York or San
Francisco, California.
“BVF Group” shall mean
the BVF Entities, and all Affiliates and Associates of the BVF
Entities.
“BVF Ownership
Percentage” shall mean, at any time, the percentage of the outstanding
shares of Common Stock Beneficially Owned by the BVF Group.
“Common Stock” shall
have the meaning set forth in the Recitals.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder from time to time.
“Effective Date” shall
have the meaning set forth in Section 2.1.
“Exempted Shares”
shall have the meaning set forth in Section 2.2.
A Person
shall be deemed the “Full Owner” of, shall
be deemed to “Fully
Own” and shall be deemed to have “Full Ownership” of,
any securities if such Person not only Beneficially Owns such securities but
also owns all economic and pecuniary interest in such securities and retains all
voting rights (other than the proxy granted to the Company pursuant to this
Agreement), with there being no hedging transaction, derivative transaction or
other transaction resulting in any form of synthetic ownership of such
securities by any other Person (other than broad-based index options,
broad-based index futures and broad-based publicly traded market baskets of
stock approved for trading by the appropriate federal government
authority).
“Grantee” shall have
the meaning set forth in Section 3.2.
“Person” shall mean
any individual, corporation, limited liability company, limited or general
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, other entity, government or any agency or political
subdivision thereof or any group pursuant to Section 13(d)(3) of the Exchange
Act comprised of two or more of the foregoing.
“Proportionate Voting”
shall have the meaning set forth in Section 3.1.
“Recommended Voting”
shall have the meaning set forth in Section 3.1.
“Rights” shall have
the meaning set forth in the Recitals.
“Rights Agreement”
shall mean the Rights Agreement, dated as of September 7, 2009, between the
Company and Mellon Investor Services LLC, as Rights Agent, as it may be amended,
supplemented, restated or modified from time to time in accordance with the
terms hereof and thereof, or any successor rights agreement adopted
substantially concurrently with the termination thereof or with the redemption
of the Rights.
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“Rights Amendment”
shall have the meaning set forth in Section 2.1.
“Subject Shares” shall
mean as of a given date that number of shares of Common Stock, if any, by which
the aggregate Beneficial Ownership by the BVF Group of shares of Common Stock
exceeds fifteen percent (15%) of the outstanding shares of Common Stock on such
date.
“Transfer” shall mean,
directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate
or similarly dispose of (by operation of law or otherwise), either voluntarily
or involuntarily, or to enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, assignment, pledge,
encumbrance, hypothecation or similar disposition of (by operation of law or
otherwise), any Common Stock or any interest in any Common Stock, including by
tendering (or announcing an intention to tender) into any tender offer,
regardless of whether such Common Stock or interest is purchased pursuant to
such tender offer. For purposes of this Agreement, the term Transfer
shall include the sale of an Affiliate or Associate of any BVF Entity or the BVF
Entity’s interest in an Affiliate or Associate that Beneficially Owns shares of
Common Stock.
Section
1.2. Methodology for
Calculations. For
all purposes of this Agreement, any calculation of the number of shares of
Common Stock outstanding at any particular time, including any calculation for
purposes of determining the particular percentage of such outstanding shares of
Common Stock of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) under the Exchange
Act as in effect on the date hereof.
ARTICLE
II
ACQUISITION
OF EXEMPTED SHARES
Section
2.1. Amendment of Rights
Agreement. If
the Rights are still then redeemable pursuant to Section 23 of the Rights
Agreement, the Company agrees to adopt an amendment to the Rights Agreement in
the form attached as Exhibit A hereto (the “Rights Amendment”) as
soon as practicable after execution hereof, and in any event within one (1)
Business Day of the date of this Agreement (the date of effectiveness of such
Rights Amendment, the “Effective Date”),
which Rights Amendment will provide that the acquisition by the BVF Entities of
the Exempted Shares, subject to the terms and conditions provided herein and in
the Rights Amendment, will not result in any BVF Entity becoming an Acquiring
Person.
Section
2.2. Exempted Shares
Definition. The
“Exempted
Shares” (a) shall consist of one share less than such number as would
result in a BVF Ownership Percentage of twenty percent (20%) and (b) must (i)
consist solely of shares of Common Stock, and not include any common stock
equivalents or derivative securities and (ii) be Fully-Owned by the BVF
Entities.
ARTICLE
III
VOTING
Section
3.1. Voting. Each
of the BVF Entities hereby irrevocably and unconditionally agrees that during
the term of this Agreement, so long as the BVF Ownership Percentage is equal to
or greater than fifteen percent (15%), at any meeting of the stockholders of the
Company, however called, including any adjournment or postponement thereof, and
in connection with any written consent of the stockholders of the Company, each
BVF Entity shall, and shall cause all Affiliates and Associates which
Beneficially Own any Subject Shares to, in each case to the fullest extent that
such matters are submitted for the vote or written consent of the Stockholder
and that the Subject Shares are entitled to vote thereon or consent thereto,
vote (or cause to be voted), in person or by proxy, or deliver (or
cause to be delivered) a written consent covering, all of the Subject Shares as
to which such BVF Entity controls the right to vote either (i) in the same
proportion as the stockholders of the Company other than the BVF Group vote with
respect to such matter (voting in such manner, “Proportionate
Voting”) or (ii) in accordance with the recommendation of the Board to
the stockholders of the Company with respect to such matter (voting in such
manner, “Recommended
Voting”). All Subject Shares must be voted in Proportionate
Voting or Recommended Voting as provided in this Section 3.1, with the BVF
Entities having the right to make the election between Proportionate Voting and
Recommended Voting, provided that if no such election is made by the BVF
Entities, Proportionate Voting shall apply. The obligations of the
BVF Entities specified in this Section 3.1 shall apply whether or not any action
is recommended by the Board.
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Section
3.2. Irrevocable
Proxy. Each
of the BVF Entities hereby irrevocably appoints as its proxy, Xxxxxx Xxxxxxxxxx
and Xxxxxxx Xxxxxx, in their respective capacities as officers of the Company,
and any individual who shall hereafter succeed to any such officer of the
Company, and any other Person designated in writing by the
Company (collectively, the “Grantees”), each of
them individually, with full power of substitution, to vote or execute written
consents solely with respect to the Subject Shares in accordance with Section
3.1 hereof and, in the discretion of the Grantees, with respect to any proposed
adjournments of any annual or special meetings of the stockholders of the
Company. This proxy is coupled with an interest and shall be
irrevocable, and each of the BVF Entities will take such further action or
execute such other instruments as may be necessary to effectuate the intent of
this proxy and hereby revokes any proxy
previously granted by any BVF Entity with respect to the Subject Shares that
would otherwise conflict with the proxy granted by this Section 3.2. The Company
may terminate this proxy with respect to the Stockholder at
any time at its sole election by written notice provided to the BVF Entities.
Notwithstanding anything to the contrary in this Agreement, the proxy
granted by this Section 3.2 shall terminate and be of no
further force and effect upon valid termination of this Agreement in accordance
with Section 4.2 hereof. Each BVF Entity hereby
ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Any BVF Entity that
is not the record owner of the Subject Shares of which it is the Beneficial
Owner shall use reasonable efforts to cause the record owner of such Subject
Shares to execute and deliver an irrevocable proxy conforming to the provisions
of this Section 3.2.
Section
3.3. Quorum. The
BVF Entities shall be under no obligation with respect to any shares of Common
Stock that it Beneficially Owns, other than the Subject Shares as provided in
Section 3.1, to be present in person or represented by proxy at any meetings of
securityholders of the Company or to vote such shares of Common
Stock.
ARTICLE
IV
MISCELLANEOUS
Section
4.1. Conflicting
Agreements. Each
party represents and warrants that it has not granted and is not a party to any
proxy, voting trust or other agreement that is inconsistent with or conflicts
with any provision of this Agreement.
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Section
4.2. Termination.
(a) This
Agreement shall automatically terminate upon the earlier of (i) expiration of
the Rights Agreement or (ii) redemption of the Rights by the Company except in
connection with the substantially concurrent adoption of a successor rights
agreement.
(b) Nothing
in this Section 4.2 shall be deemed to release any party from any liability for
any willful and material breach of this Agreement or to impair the right of any
party to compel specific performance by any other party of its obligations under
this Agreement.
Section
4.3. Ownership
Information. The
BVF Entities shall deliver to the Company promptly (but in no event more than
two (2) Business Days) after any Transfer of shares of Common Stock, an accurate
written report specifying the shares of Common Stock Transferred in such
transaction and the number of shares of Common Stock owned by the BVF Group
after giving effect to such transaction; provided, however, that no such
report need be delivered with respect to any Transfer of shares of Common Stock
by the BVF Group that is reported in a statement on Schedule 13D or a Form 4
filed with the Securities and Exchange Commission and delivered to the Company
by the BVF Entities in accordance with Section 13(d) or Section 16 of the
Exchange Act, as applicable. The Company shall be entitled to rely on
the most recently delivered report, statement on Schedule 13D, Form 4 or other
notice for all purposes of this Agreement, unless the BVF Entities shall have
updated such information by delivery of a subsequent report, statement on
Schedule 13D, Form 4 or notice.
Section
4.4. Amendment and
Waiver. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto. The failure of any party to enforce
any of the provisions of this Agreement shall in no way be construed as a waiver
of such provisions and shall not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its
terms.
Section
4.5. Severability. If
any provision of this Agreement shall be declared by any court of competent
jurisdiction to be illegal, void or unenforceable, all other provisions of this
Agreement shall not be affected and shall remain in full force and
effect.
Section
4.6. Entire
Agreement. Except
as otherwise expressly set forth herein, this Agreement, the Rights Amendment
and the Rights Agreement embody the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, that may have related to the subject matter hereof in
any way. Without limiting the generality of the foregoing, to the
extent that any of the terms hereof are inconsistent with the rights or
obligations of the BVF Entities under any other agreement with the Company, the
terms of this Agreement shall govern.
Section
4.7. Successors and
Assigns. Neither
this Agreement nor any of the rights or obligations of any party under this
Agreement shall be assigned, in whole or in part (except by operation of law
pursuant to a merger whose purpose is not to avoid the provisions of this
Agreement), by any party without the prior written consent of the other
party. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns.
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Section
4.8. Counterparts. This
Agreement may be executed in separate counterparts each of which shall be an
original and all of which taken together shall constitute one and the same
agreement.
Section
4.9. Remedies. Each
party hereto acknowledges that money damages would not be an adequate remedy in
the event that each and every one of the covenants or agreements in this
Agreement are not performed in accordance with their terms, and it is therefore
agreed that, in addition to and without limiting any other remedy or right it
may have, the non-breaching party will have the right to an injunction,
temporary restraining order or other equitable relief in any court of competent
jurisdiction enjoining any such breach and enforcing specifically each and every
one of the terms and provisions hereof. Each party hereto agrees not
to oppose the granting of such relief in the event a court determines that such
a breach has occurred, and to waive any requirement for the securing or posting
of any bond in connection with such remedy. All rights, powers and
remedies provided under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative, and the exercise or
beginning of the exercise of any thereof by any party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by such
party.
Section
4.10. Notices. Any
notice, request, claim, demand or other communication under this Agreement shall
be in writing, shall be either personally delivered, sent by reputable overnight
courier service (charges prepaid), sent by facsimile to the address for such
Person set forth below or such other address as the recipient party has
specified by prior written notice to the other parties hereto and shall be
deemed to have been given hereunder on (i) the date of delivery if sent by
messenger, (ii) on the Business Day following the Business Day on which
delivered to a recognized courier service if sent by overnight courier or
(iii) upon confirmation of receipt, if sent by fax.
If to the
Company:
Facet
Biotech Corporation
0000
Xxxxxxx Xxxxxxxxx
Xxxxxxx
Xxxx, XX 00000
Attention:
General Counsel
Fax:
000-000-0000
with a
copy (which shall not constitute notice) to:
Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP
0000
Xxxxxxx Xxxxxx
Xxxx
Xxxx, XX 00000
Attention:
Xxxxxxx Xxxxxxxxx
Xxxxxxx
Xxxxxx
Fax:
000-000-0000
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If to the
BVF Entities:
BVF
Partners L.P.
000 Xxxxx
Xxxxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxx X. Xxxxxxx
Fax:
with a
copy (which shall not constitute notice) to:
Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park
Avenue Tower
00 Xxxx
00xx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx X. Xxxxxxxx, Esq.
Facsimile:
(000) 000-0000
Section
4.11. Governing Law; Consent to
Jurisdiction. This
Agreement shall be governed in all respects by the laws of the State of
Delaware. Any disagreement, issue, dispute, claim, demand or
controversy arising out of or relating to this Agreement (each, a “Dispute”) shall be
brought only in the Court of Chancery of the State of Delaware. Each
of the parties hereby irrevocably consents to the jurisdiction of such court
(and of the appropriate appellate court therefrom) in any such Dispute and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such Dispute in
such court and that any such Dispute which is brought in such court has been
brought in an inconvenient forum. Process in any such Dispute may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party agrees
that service of process on such party as provided in Section 4.10 shall be
deemed effective service of process on such party. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section
4.12. Change in Law,
Etc. In
the event any law, rule or regulation comes into force or effect (including by
amendment) which conflicts with the terms and conditions of this Agreement, or
any court of competent jurisdiction shall issue a final, non-appealable order
invalidating or enjoining the performance of any provision hereof, the parties
shall negotiate in good faith to revise this Agreement to achieve the parties’
intention set forth herein.
Section
4.13. Interpretation. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement. Whenever the words “include”, “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words
“without limitation”. The words “hereof “, “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Article, Section and Exhibit references are to this Agreement unless otherwise
specified. The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
7
IN
WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement as
of the date first written above.
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FACET
BIOTECH CORPORATION
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By:
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Name:
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Title:
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BIOTECHNOLOGY
VALUE FUND, L.P.
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INVESTMENT
10, L.L.C.
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By: BVF
Partners L.P., its general partner
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By: BVF
Partners L.P., its investment manager
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By: BVF
Inc., its general partner
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By: BVF
Inc., its general partner
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By:
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/s/
Xxxx X. Xxxxxxx
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By:
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/s/
Xxxx X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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President
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President
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BIOTECHNOLOGY
VALUE FUND II, L.P.
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BVF
PARTNERS L.P.
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By: BVF
Partners L.P., its general partner
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By: BVF
Inc., its general partner
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By: BVF
Inc., its general partner
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By:
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/s/
Xxxx X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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By:
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/s/
Xxxx X. Xxxxxxx
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President
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Xxxx
X. Xxxxxxx
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President
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BVF
INVESTMENTS, L.L.C.
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BVF
INC.
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By: BVF
Partners L.P., its manager
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By:
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/s/
Xxxx X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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By: BVF
Inc., its general partner
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President
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By:
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/s/
Xxxx X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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President
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8
EXHIBIT
A
AMENDMENT
TO RIGHTS AGREEMENT
This
Amendment to Rights Agreement (this “Amendment”) is
entered into as of December 15, 2009 by and between Facet Biotech Corporation, a
Delaware corporation (the “Company”), and Mellon
Investor Services LLC, a New Jersey limited liability company, as Right Agent
(the “Rights
Agent”).
RECITALS:
WHEREAS, the Company and the
Rights Agent have previously entered into a Rights Agreement dated as of
September 7, 2009 (the “Agreement”;
capitalized terms used but not defined herein shall have the meaning set forth
in the Agreement);
WHEREAS, pursuant to Section
27 of the Agreement, for so long as the Rights are redeemable, the Company may
in its sole and absolute discretion amend any provision of the Agreement in any
respect without the approval of any holders of the Rights, as evidenced by a
writing signed by the Company and the Rights Agent;
WHEREAS, as of the date
hereof, the Rights are redeemable; and
WHEREAS, the Board of
Directors has deemed it fair, desirable and in the best interests of the Company
and its stockholders to allow the acquisition by certain existing Company
stockholders of additional shares of Common Stock without any such stockholder
becoming an Acquiring Person, and to amend the Agreement accordingly as set
forth below to permit such transaction, and has duly authorized any officer of
the Company to execute and deliver this Amendment.
NOW, THEREFORE, in
consideration of the premises and mutual agreements hereinafter set out and of
other consideration (the receipt and sufficiency of which are acknowledged), the
parties hereto agree as follows:
1. Amendment of Section 1(a) of
the Agreement. The definition of “Acquiring Person” in Section
1(a) of the Agreement is hereby amended and supplemented by adding the following
sentences at the end thereof:
“Notwithstanding
anything contained in this Section 1(a) to the contrary, solely in the case of
any Person who is one of the BVF Entities (as defined below) and with respect to
no other Person: (A) a reference to “20%” shall be substituted for each
reference to “15%” in the foregoing provisions of this Section 1(a), so as to
permit the Beneficial Ownership of up to 20% of the Common Stock of the Company
by such BVF Entities pursuant to, and only if the BVF Entities are acting in
compliance with, the terms of the Stockholders Agreement, dated as of December
15, 2009 between the Company and the BVF Entities (as the same may be amended
from time to time, the “Stockholders
Agreement”) and (B) in the event that the BVF Ownership Percentage is
greater than 15% and less than 20%, in the event of any Transfer (as defined
below) by a BVF Entity, upon the occurrence of any such Transfer such references
shall automatically be deemed replaced by references to the then-current BVF
Ownership Percentage plus one share of Common Stock, solely to the extent such
then-current BVF Ownership Percentage is both lower than the previously
applicable BVF Ownership Percentage and less than 20%, unless and until such
then-current BVF Ownership Percentage is less than 15%, at which time all such
references shall revert to “15%” and no additional changes shall be made
pursuant to this clause (B). For purposes of this
definition: “BVF Entities” shall
mean Biotechnology Value Fund, L.P., Biotechnology Value Fund II, L.P., BVF
Investments, L.L.C., Investment 10, L.L.C., BVF Partners L.P., BVF Inc. and Xxxx
X. Xxxxxxx; “BVF
Ownership Percentage” means, at any time, the percentage of the
outstanding Common Stock Beneficially Owned in the aggregate by the BVF Entities
and all Affiliates and Associates thereof as of such time; and solely as used in
this Section 1(a), “Transfer” shall mean,
directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate
or similarly dispose of (by operation of law or otherwise), either voluntarily
or involuntarily, or to enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, assignment, pledge,
encumbrance, hypothecation or similar disposition of (by operation of law or
otherwise), any Common Stock or any interest in any Common Stock, including by
tendering (or announcing an intention to tender) into any tender offer,
regardless of whether such Common Stock or interest is purchased pursuant to
such tender offer, and for such purpose the term “Transfer” shall include the
sale of an Affiliate or Associate of any BVF Entity or the BVF Entity’s interest
in an Affiliate or Associate that Beneficially Owns shares of Common
Stock.”
2. Governing
Law. This Amendment and the Agreement, as amended hereby,
shall be governed by and construed in accordance with the laws of the State of
Delaware, provided, however, that all provisions regarding the rights, duties,
obligations and liabilities of the Rights Agent shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such state.
3. Effect of
Amendment. Except as expressly modified hereby, the Agreement
remains in full force and effect. Upon the execution and delivery
hereof, as of the day and year first above written, the Agreement shall
thereupon be deemed to be amended and supplemented as hereinabove set forth as
fully and with the same effect as if the amendments and supplements made hereby
were originally set forth in the Agreement, and this Amendment and the Agreement
shall henceforth be read, taken and construed as one and the same instrument,
but such amendments and supplements shall not operate so as to render invalid or
improper any action heretofore taken under the Agreement.
4. Descriptive
Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
5. Counterparts. This
Amendment may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Amendment and all of which, when taken
together, will be deemed to constitute one and the same
agreement. The exchange of copies of this Amendment and of signature
pages by facsimile or electronic transmission shall constitute effective
execution and delivery of this Amendment as to the parties hereto and may be
used in lieu of the original Amendment for all purposes. Signatures
of the parties hereto transmitted electronically or by facsimile shall be deemed
to be their original signatures for all purposes.
2
6. Severability. If
any term, provision or restriction of this Amendment is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions or restriction of this Amendment shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
[Signature
Page Follows]
3
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as
of the day and year first above written.
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FACET
BIOTECH CORPORATION
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By:
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Name:
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Title:
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MELLON
INVESTOR SERVICES LLC
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By:
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/s/
Xxx
Xxxx
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Name:
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Xxx
Xxxx
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Title:
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Vice
President & Senior Relationship
Manager
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4
