\nSchedule TO……………………………………….. 2.01
\nSchedule 14D-9…………………………………….. 2.02
\nStockholder Agreement………………………………. Recitals
\n<\/c><\/s><\/caption>\n<\/c><\/s><\/caption>\n<\/table>\n
ARTICLE 2
\n THE OFFER<\/p>\n
SECTION 2.01. THE OFFER. (a) As promptly as practicable after the date
\nhereof, but in no event later than ten Business Days after the date hereof,
\nAcquisition Sub shall commence an offer (the “OFFER”) to purchase for cash
\n14,392,003 Shares (which shall include, for purposes of this Agreement, (i) all
\nShares issuable in respect of exercisable, in-the-money Company Options which
\nhave been “conditionally exercised” by the holder thereof for purposes of
\nparticipating in the Offer, and (ii) all Shares issued prior to the expiration
\nof the Offer upon the conversion of any convertible securities or upon the
\nexercise of any options or warrants) (such number of Shares, the “MAXIMUM
\nNUMBER”) at a price of $70.00 per Share, net to the seller in cash (such price,
\nas may hereafter be increased, the “OFFER PRICE”). The obligation of Acquisition
\nSub to accept for payment any Shares tendered pursuant to the Offer shall be
\nsubject only to the conditions set forth in Annex I hereto. The initial
\nexpiration date of the Offer shall be the twentieth Business Day following the
\ncommencement of the Offer (determined under Rule 14d-1(g)(3) promulgated under
\nthe 1934 Act). Acquisition Sub expressly reserves the right to waive any of the
\nconditions to the Offer, modify the terms of the Offer, and increase the Offer
\nPrice; PROVIDED that, without the consent of the Company, Acquisition Sub shall
\nnot (i) increase or reduce the Maximum Number, (ii) reduce the price per Share
\nto be paid pursuant to the Offer, (iii) add to the conditions set forth in Annex
\nI or modify any condition set forth in Annex I, (iv) change the form of
\nconsideration payable in the Offer, or (v) otherwise amend the Offer in any
\nmanner adverse to the holders of Shares. Acquisition Sub shall extend the Offer
\nfor any period required by any rule, regulation, interpretation or position of
\nthe SEC or the staff thereof applicable to the Offer or any period required by
\napplicable law. If any of the conditions to the Offer is not satisfied or waived
\non any scheduled expiration date of the Offer, Acquisition Sub shall extend the
\nOffer from time to time until such conditions are satisfied or waived; PROVIDED
\nthat (i) each such extension of the Offer shall be for a period of not more than
\nten Business Days, and (ii) Acquisition Sub shall not, without the prior written
\nconsent of the Company, extend the Offer beyond the Termination Date. Subject to
\nthe foregoing and upon the terms and subject to the conditions of the Offer,
\nAcquisition Sub shall accept<\/p>\n
6<\/p>\n
for payment and pay for, as promptly as practicable after the expiration of the
\nOffer, all Shares validly tendered and not withdrawn (including if no Shares are
\nvalidly tendered and not withdrawn), but not in excess of the Maximum Number.<\/p>\n
(b) As soon as practicable on the date of commencement of the Offer,
\nBMS and Acquisition Sub shall file with the SEC a Tender Offer Statement on
\nSchedule TO (the “SCHEDULE TO”) with respect to the Offer (such Schedule TO and
\nsuch documents included therein pursuant to which the Offer will be made,
\ntogether with any supplements or amendments thereto, the “OFFER DOCUMENTS”).
\nBMS, Acquisition Sub and the Company each agrees promptly to correct any
\ninformation provided by it for use in the Offer Documents if and to the extent
\nthat such information shall have become false or misleading in any material
\nrespect. BMS and Acquisition Sub agree to take all steps necessary to cause the
\nSchedule TO as so corrected to be filed with the SEC. BMS and Acquisition Sub
\nshall deliver or cause to be delivered to the Company, or such other Person as
\nthe Company shall designate, the Offer Documents (and any amendments thereto) as
\nso corrected, in such quantities as shall be necessary for dissemination to all
\nholders of Shares and Company Options. The Company shall, at its expense, cause
\nthe Offer Documents (and any amendments thereto) to be disseminated to holders
\nof Shares and Company Options, in each case as and to the extent required by
\napplicable federal securities laws. The Company and its counsel shall be given
\nan opportunity to review and comment on the Offer Documents prior to their being
\nfiled with the SEC or disseminated to the holders of Shares and Company Options.
\nBMS and Acquisition Sub shall provide the Company and its counsel with any
\ncomments or other communications, whether written or oral, that BMS, Acquisition
\nSub or its counsel may receive from time to time from the SEC or its staff with
\nrespect to the Offer Documents promptly after receipt of such comments or other
\ncommunications.<\/p>\n
(c) Each certificate for Shares issued to Acquisition Sub representing
\nShares accepted for purchase and paid for by Acquisition Sub in the Offer shall
\nbear a legend in substantially the following form:<\/p>\n
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
\n RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCKHOLDER
\n AGREEMENT, DATED SEPTEMBER 19, 2001, AMONG IMCLONE SYSTEMS
\n INCORPORATED, BRISTOL-MYERS SQUIBB COMPANY AND BRISTOL-MYERS
\n SQUIBB BIOLOGICS COMPANY, A COPY OF WHICH MAY BE OBTAINED FROM
\n THE CORPORATE<\/p>\n
7<\/p>\n
SECRETARY OF IMCLONE SYSTEMS
\n INCORPORATED.<\/p>\n
SECTION 2.02. COMPANY ACTION. (a) The Company hereby approves of and
\nconsents to the Offer and represents that its Board of Directors (the “COMPANY
\nBOARD”), at a meeting duly called and held, has resolved to recommend acceptance
\nof the Offer by the holders of Shares; PROVIDED, that the Company Board may
\nwithdraw, modify or amend such recommendation in exercise of its fiduciary
\nduties.<\/p>\n
(b) As soon as practicable on the day that the Offer is commenced, the
\nCompany shall file with the SEC and promptly thereafter disseminate to holders
\nof Shares and Company Options, in each case as and to the extent required by
\napplicable federal securities laws, a Solicitation\/Recommendation Statement on
\nSchedule 14D-9 (together with any amendments or supplements thereto, the
\n“SCHEDULE 14D-9”) that, subject to the Company Board’s right to withdraw, modify
\nor amend such recommendation in exercise of its fiduciary duties, shall reflect
\nthe recommendation of the Company Board referred to above. Each of the Company,
\nBMS and Acquisition Sub agrees promptly to correct any information provided by
\nit for use in the Schedule 14D-9 if and to the extent that it shall have become
\nfalse or misleading in any material respect. The Company agrees to take all
\nsteps necessary to cause the Schedule 14D-9 as so corrected to be filed with the
\nSEC and to be disseminated to holders of Shares and Company Options, in each
\ncase as and to the extent required by applicable federal securities laws. BMS
\nand its counsel shall be given an opportunity to review and comment on the
\nSchedule 14D-9 prior to its being filed with the SEC. The Company shall provide
\nBMS and its counsel with any comments or other communications, whether written
\nor oral, that the Company or its counsel may receive from time to time from the
\nSEC or its staff with respect to the Schedule 14D-9 (and any amendments thereto)
\npromptly after receipt of such comments or other communications.<\/p>\n
SECTION 2.03. COMPANY DISCLOSURE DOCUMENTS. The Company agrees that:<\/p>\n
(a) Each document required to be filed by the Company with the SEC or
\nrequired to be distributed or otherwise disseminated by the Company to the
\nCompany’s stockholders in connection with the transactions contemplated by this
\nAgreement (the “COMPANY DISCLOSURE DOCUMENTS”), including the Schedule 14D-9,
\nand any amendments or supplements thereto, when filed, distributed or
\ndisseminated, as applicable, will comply as to form in all material respects
\nwith the applicable requirements of the 1934 Act.<\/p>\n
8<\/p>\n
(b) No Company Disclosure Document, at the time of the filing of such
\nCompany Disclosure Document or any supplement or amendment thereto, at the time
\nof any distribution or dissemination thereof and at the time of the consummation
\nof the Offer, will contain any untrue statement of a material fact or omit to
\nstate any material fact necessary in order to make the statements made therein,
\nin the light of the circumstances under which they were made, not misleading;
\nPROVIDED that this Section 2.03(b) will not apply to statements or omissions
\nincluded in the Company Disclosure Documents based upon information furnished to
\nthe Company in writing by BMS specifically for use therein.<\/p>\n
(c) The information with respect to the Company or any of its
\nSubsidiaries that the Company furnishes to BMS in writing specifically for use
\nin the Offer Documents, at the time of the filing thereof or any supplement or
\namendment thereto, at the time of any distribution or dissemination thereof and
\nat the time of the consummation of the Offer, will not contain any untrue
\nstatement of a material fact or omit to state any material fact necessary in
\norder to make the statements made therein, in the light of the circumstances
\nunder which they were made, not misleading.<\/p>\n
SECTION 2.04. BMS DISCLOSURE DOCUMENTS. BMS agrees that:<\/p>\n
(a) The information with respect to BMS, Acquisition Sub and any other
\nSubsidiaries of BMS that BMS furnishes to the Company in writing specifically
\nfor use in any Company Disclosure Document will not contain any untrue statement
\nof a material fact or omit to state any material fact necessary in order to make
\nthe statements made therein, in the light of the circumstances under which they
\nwere made, not misleading at the time of the filing of such Company Disclosure
\nDocument or any supplement or amendment thereto, at the time of any distribution
\nor dissemination thereof and at the time of the consummation of the Offer.<\/p>\n
(b) The Offer Documents, when filed, distributed or disseminated, as
\napplicable, will comply as to form in all material respects with the applicable
\nrequirements of the 1934 Act and, at the time of the filing thereof, at the time
\nof any distribution or dissemination thereof and at the time of the consummation
\nof the Offer, will not contain any untrue statement of a material fact or omit
\nto state any material fact necessary to make the statements made therein, in the
\nlight of the circumstances under which they were made, not misleading; PROVIDED
\nthat this Section 2.04(b) will not apply to statements or omissions included in
\nthe Offer Documents based upon information furnished to BMS in writing by the
\nCompany specifically for use therein.<\/p>\n
9<\/p>\n
ARTICLE 3
\n ADDITIONAL SHARE ACQUISITIONS<\/p>\n
SECTION 3.01. ADDITIONAL SHARE ISSUANCE. (a) Subject to the conditions
\nset forth in Section 3.01(d), if the number of shares that Acquisition Sub
\naccepts for payment is less than the Maximum Number, the Company shall issue and
\nsell to Acquisition Sub, and Acquisition Sub shall purchase from the Company for
\ncash, a number of shares equal to the difference between (i) the Maximum Number,
\nand (ii) the number of Shares accepted for payment by Acquisition Sub in the
\nOffer (the “ADDITIONAL ISSUED SHARES”), at a price per Share equal to the Offer
\nPrice, net to the Company in cash (the “ADDITIONAL SHARE ISSUANCE”).<\/p>\n
(b) The certificate representing any Shares to be purchased by
\nAcquisition Sub pursuant to the Additional Share Issuance shall bear a legend in
\nsubstantially the following form:<\/p>\n
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
\n RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCKHOLDER
\n AGREEMENT, DATED SEPTEMBER 19, 2001, AMONG IMCLONE SYSTEMS
\n INCORPORATED, BRISTOL-MYERS SQUIBB COMPANY AND BRISTOL-MYERS
\n SQUIBB BIOLOGICS COMPANY, A COPY OF WHICH MAY BE OBTAINED FROM
\n THE CORPORATE SECRETARY OF IMCLONE SYSTEMS INCORPORATED.<\/p>\n
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
\n REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
\n MAY BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN
\n EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.<\/p>\n
(c) Subject to the conditions set forth in Section 3.01(d), as soon as
\npracticable following the acceptance for payment of Shares in the Offer by
\nAcquisition Sub, the parties hereto shall cause the Additional Share Issuance to
\nbe effected. Delivery of certificates representing the Additional Issued Shares
\nby the Company shall be made against payment of the purchase price therefor by
\nwire transfer in immediately available funds to such account of the Company as
\nthe<\/p>\n
10<\/p>\n
Company shall communicate to BMS at least two Business Days prior to the
\nconsummation of the Additional Share Issuance. The certificates for the Shares
\nto be purchased pursuant to the Additional Share Issuance shall be registered in
\nthe name of Acquisition Sub. Delivery of such certificates and payment of the
\npurchase price therefor shall be made at the offices of Davis Polk & Wardwell,
\n450 Lexington Avenue, New York, New York 10017 or at such other place as the
\nparties shall mutually agree, on such date and at such time as the parties shall
\nmutually agree, but in any event subject to the first sentence of this Section
\n3.01(c).<\/p>\n
(d) The respective obligations of the Company, BMS and Acquisition Sub
\nto effect the Additional Share Issuance shall be subject to the satisfaction of
\nthe following conditions:<\/p>\n
(i) The applicable waiting period under the HSR Act shall
\n have expired or been terminated;<\/p>\n
(ii) There shall not have been any action taken, or any
\n statute, rule, regulation, injunction, judgment, order or
\n decree enacted, entered, enforced, promulgated, issued or
\n deemed applicable to BMS, Acquisition Sub, the Company or the
\n Additional Share Issuance, by any court, government or
\n governmental authority or agency in the United States or any
\n state thereof, other than the application of the waiting
\n period provisions of the HSR Act to the Additional Share
\n Issuance, that prohibits the consummation of the Additional
\n Share Issuance or imposes material limitations on the ability
\n of BMS or Acquisition Sub to acquire or hold, or exercise full
\n rights of ownership of, any Shares issued pursuant to the
\n Additional Share Issuance, including the right to vote such
\n Shares on all matters properly presented to the stockholders
\n of the Company;<\/p>\n
(iii) Acquisition Sub shall have accepted for payment all
\n Shares, subject to the Maximum Number, which were validly
\n tendered and not withdrawn pursuant to the Offer; and<\/p>\n
(iv) The Additional Issued Shares shall have been authorized
\n for listing on the Nasdaq National Market upon official notice
\n of issuance.<\/p>\n
SECTION 3.02. MARKET FAILURE SHARE ISSUANCE. (a) If at the Termination
\nDate, Acquisition Sub has not accepted for payment Shares validly tendered and
\nnot withdrawn pursuant to the Offer and, at such time, all conditions to the
\nOffer<\/p>\n
11<\/p>\n
have been satisfied except for the Market Failure Condition, then either party
\nmay elect to terminate the Offer by written notice to the other party. Upon any
\nsuch election, BMS and Acquisition Sub shall take all action necessary to
\nterminate the Offer and, subject to the conditions set forth in Section 3.02(d),
\nthe Company shall issue and sell to Acquisition Sub, and Acquisition Sub shall
\npurchase from the Company for cash, a number of Shares equal to the Maximum
\nNumber (the “MARKET FAILURE ISSUED SHARES”), at a price per Share equal to the
\nOffer Price, net to the Company in cash (the “MARKET FAILURE SHARE ISSUANCE”).<\/p>\n
(b) The certificate representing any Shares to be purchased by
\nAcquisition Sub pursuant to the Market Failure Share Issuance shall bear the
\nlegend in substantially the form set forth in Section 3.01(b).<\/p>\n
(c) Subject to the conditions set forth in Section 3.02(d), as soon as
\npracticable following the termination of the Offer pursuant to Section 3.02(a),
\nthe parties hereto shall cause the Market Failure Share Issuance to be effected.
\nDelivery of certificates representing the Market Failure Issued Shares by the
\nCompany shall be made against payment of the purchase price therefor by wire
\ntransfer in immediately available funds to such account of the Company as the
\nCompany shall communicate to BMS at least two Business Days prior to the
\nconsummation of the Market Failure Share Issuance. The certificates for the
\nShares to be purchased pursuant to the Market Failure Share Issuance shall be
\nregistered in the name of Acquisition Sub. Delivery of such certificates and
\npayment of the purchase price therefor shall be made at the offices of Davis
\nPolk & Wardwell, 450 Lexington Avenue, New York, New York 10017 or at such other
\nplace as the parties shall mutually agree, on such date and at such time as the
\nparties shall mutually agree, but in any event subject to the first sentence of
\nthis Section 3.02(c).<\/p>\n
(d) The respective obligations of the Company, BMS and Acquisition Sub
\nto effect the Market Failure Share Issuance shall be subject to the satisfaction
\nof the following conditions:<\/p>\n
(i) The applicable waiting period under the HSR Act shall
\n have expired or been terminated;<\/p>\n
(ii) There shall not have been any action taken, or any
\n statute, rule, regulation, injunction, judgment, order or
\n decree enacted, entered, enforced, promulgated, issued or
\n deemed applicable to BMS, Acquisition Sub, the Company or the
\n Market Failure Share Issuance, by any court, government or
\n governmental authority or agency in the United States or any
\n state thereof, other than the application of the waiting
\n period provisions of the HSR Act to the<\/p>\n
12<\/p>\n
Market Failure Share Issuance, that prohibits the consummation
\n of the Market Failure Share Issuance or imposes material
\n limitations on the ability of BMS or Acquisition Sub to
\n acquire or hold, or exercise full rights of ownership of, any
\n Shares issued pursuant to the Market Failure Share Issuance,
\n including the right to vote such Shares on all matters
\n properly presented to the stockholders of the Company;<\/p>\n
(iii) The Market Failure Issued Shares shall have been
\n authorized for listing on the Nasdaq National Market upon
\n official notice of issuance; and<\/p>\n
(iv) The Offer shall have been terminated in accordance with
\n Section 3.02(a).<\/p>\n
SECTION 3.03. OPEN MARKET PURCHASE. (a) If at the Termination Date,
\nAcquisition Sub has not accepted for payment Shares validly tendered and not
\nwithdrawn pursuant to the Offer, and there exists on such date a Non-Third Party
\nChange of Control Injunction, then either party may elect to terminate the Offer
\nby written notice to the other party. Upon any such election, BMS and
\nAcquisition Sub shall take all action necessary to terminate the Offer and, to
\nthe fullest extent permitted by law and not prohibited by the terms of any
\nstatute, rule, regulation, injunction, judgment, order or decree by any court,
\ngovernment or governmental authority or agency in the United States or any state
\nthereof, during the twelve- month period commencing on the date immediately
\nfollowing the Termination Date (the “OPEN MARKET PURCHASE PERIOD”), Acquisition
\nSub shall from time to time purchase, in transactions through the Nasdaq
\nNational Market or otherwise, a number of Shares in the aggregate equal to the
\nMaximum Number (the “OPEN MARKET PURCHASE”); PROVIDED, that Acquisition Sub’s
\nobligation to purchase Shares in the Open Market Purchase shall terminate at the
\ntime Acquisition Sub has paid $1,000,000,000 in the aggregate to purchase Shares
\nin the Open Market Purchase.<\/p>\n
(b) If BMS and Acquisition Sub have complied with their obligations
\nunder Section 3.03(a), and immediately following the Open Market Purchase Period
\nBMS and its Affiliates shall not own at least 5% of the then-outstanding Shares,
\nsubject to the conditions set forth in Section 3.03(f), the Company shall issue
\nand sell to Acquisition Sub, and Acquisition Sub shall purchase from the Company
\nfor cash, a number of shares (the “OPEN MARKET TOP-UP ISSUED SHARES”) equal to
\nthe difference between (i) the number of Shares representing 5% of the Shares
\noutstanding immediately following the Open Market Purchase Period, and (ii) the
\nnumber of Shares owned by BMS and its Affiliates immediately following the Open
\nMarket Purchase Period, at a price per Share<\/p>\n
13<\/p>\n
equal to the Average Trading Price, net to the Company in cash (the “OPEN MARKET
\nTOP-UP SHARE ISSUANCE”). For purposes of this Section 3.03(b), “AVERAGE TRADING
\nPRICE” means the average closing price of the Shares on the Nasdaq National
\nMarket for the thirty Nasdaq trading days ending on and including the last
\nBusiness Day of the Open Market Purchase Period.<\/p>\n
(c) In consideration of the Company’s agreement to facilitate
\nAcquisition Sub’s acquisition of Shares pursuant to the Open Market Purchase and
\nits agreement to grant Acquisition Sub the right to acquire the Open Market
\nTop-Up Issued Shares, promptly (but in no event later than two Business Days)
\nfollowing the end of the Open Market Purchase Period, BMS shall (i) pay to the
\nCompany, by wire transfer of immediately available funds to such account of the
\nCompany as the Company shall communicate to BMS prior to the end of the Open
\nMarket Purchase Period, an amount equal to (A) the excess, if any, of (1)
\n$70.00, over (2) the average purchase price paid by Acquisition Sub for all
\nShares acquired in the Open Market Purchase (the “AVERAGE PURCHASE PRICE”),
\nmultiplied by (B) the number of Shares purchased by Acquisition Sub in the Open
\nMarket Purchase; it being understood and agreed that, if the Average Purchase
\nPrice is equal to or exceeds $70.00, no amount shall be payable by BMS pursuant
\nto this sentence, and (ii) provide the Company with a reasonably detailed
\naccounting of BMS’s calculation of the Average Purchase Price, together with
\nsuch documentation and records as the Company shall reasonably request in order
\nto verify such calculation.<\/p>\n
(d) The certificate representing any Shares to be purchased by
\nAcquisition Sub pursuant to the Open Market Top-Up Share Issuance shall bear the
\nlegend in substantially the form set forth in Section 3.01(b).<\/p>\n
(e) Subject to the conditions set forth in Section 3.03(f), as promptly
\nas practicable following the end of the Open Market Purchase Period, the parties
\nhereto shall cause the Open Market Top-Up Share Issuance to be effected.
\nDelivery of certificates representing the Open Market Top-Up Issued Shares by
\nthe Company shall be made against payment of the purchase price therefor by wire
\ntransfer in immediately available funds to such account of the Company as the
\nCompany shall communicate to BMS at least two Business Days prior to the
\nconsummation of the Open Market Top-Up Share Issuance. The certificates for the
\nShares to be purchased pursuant to the Open Market Top-Up Share Issuance shall
\nbe registered in the name of Acquisition Sub. Delivery of such certificates and
\npayment of the purchase price therefor shall be made at the offices of Davis
\nPolk & Wardwell, 450 Lexington Avenue, New York, New York 10017 or at such other
\nplace as the parties shall mutually agree, on such date and at such time as the
\nparties shall mutually agree, but in any event subject to the first sentence of
\nthis Section 3.03(e).<\/p>\n
14<\/p>\n
(f) The respective obligations of the Company, BMS and Acquisition Sub
\nto effect the Open Market Top-Up Share Issuance shall be subject to the
\nfollowing conditions:<\/p>\n
(i) The applicable waiting period under the HSR Act shall
\n have expired or been terminated;<\/p>\n
(ii) There shall not have been any action taken, or any
\n statute, rule, regulation, injunction, judgment, order or
\n decree enacted, entered, enforced, promulgated, issued or
\n deemed applicable to BMS, Acquisition Sub, the Company or the
\n Open Market Top-Up Share Issuance, by any court, government or
\n governmental authority or agency in the United States or any
\n state thereof, other than the application of the waiting
\n period provisions of the HSR Act to the Open Market Top-Up
\n Share Issuance, that prohibits the consummation of the Open
\n Market Top-Up Share Issuance or imposes material limitations
\n on the ability of BMS or Acquisition Sub to acquire or hold,
\n or exercise full rights of ownership of, any Shares issued
\n pursuant to the Open Market Top-Up Share Issuance, including
\n the right to vote such Shares on all matters properly
\n presented to the stockholders of the Company;<\/p>\n
(iii) The Open Market Top-Up Issued Shares shall have been
\n authorized for listing on the Nasdaq National Market upon
\n official notice of issuance; and<\/p>\n
(iv) The Offer shall have been terminated in accordance with
\n Section 3.03(a).<\/p>\n
ARTICLE 4
\n REPRESENTATIONS AND WARRANTIES OF THE COMPANY<\/p>\n
The Company represents and warrants to BMS that, except as set forth in
\nthe disclosure letter previously delivered by the Company to BMS:<\/p>\n
SECTION 4.01. CORPORATE EXISTENCE AND POWER. The Company is a
\ncorporation duly incorporated, validly existing and in good standing under the
\nlaws of the State of Delaware and has all corporate powers and all governmental
\nlicenses, authorizations, permits, consents and approvals required to own, lease
\nor otherwise hold its properties and assets and to carry on its business as now
\nconducted, except for those licenses, authorizations, permits, consents and<\/p>\n
15<\/p>\n
approvals the absence of which would not have, individually or in the aggregate,
\na Material Adverse Effect on the Company. The Company is duly qualified to do
\nbusiness as a foreign corporation and is in good standing in each jurisdiction
\nwhere such qualification is necessary, except for those jurisdictions where
\nfailure to be so qualified would not have, individually or in the aggregate, a
\nMaterial Adverse Effect on the Company or materially impair the ability of the
\nCompany to consummate the transactions contemplated by this Agreement and the
\nStockholder Agreement.<\/p>\n
SECTION 4.02. CORPORATE AUTHORIZATION. The execution, delivery and
\nperformance by the Company of this Agreement and the Stockholder Agreement and
\nthe consummation by the Company of the transactions contemplated hereby and
\nthereby are within the Company’s corporate powers and have been duly authorized
\nby all necessary corporate action on the part of the Company. The Company has
\nduly executed and delivered each of this Agreement and the Stockholder
\nAgreement, and each of this Agreement and the Stockholder Agreement constitutes
\na valid and binding agreement of the Company.<\/p>\n
SECTION 4.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
\nperformance by the Company of this Agreement and the Stockholder Agreement and
\nthe consummation by the Company of the transactions contemplated hereby and
\nthereby require no action, consent, approval, authorization, permit or order by
\nor in respect of, or filing, declaration or registration with, any governmental
\nauthority or agency in the United States or any state thereof, other than (i)
\ncompliance with any applicable requirements of the HSR Act, (ii) compliance with
\nany applicable requirements of the 1933 Act, the 1934 Act and any other
\napplicable securities or takeover laws, (iii) compliance with the rules and
\nregulations of the National Association of Securities Dealers and the Nasdaq
\nNational Market, and (iv) any actions or filings the absence of which would not
\nhave, individually or in the aggregate, a Material Adverse Effect on the Company
\nor materially impair the ability of the Company to consummate the transactions
\ncontemplated by this Agreement and the Stockholder Agreement.<\/p>\n
SECTION 4.04. NON-CONTRAVENTION. The execution, delivery and
\nperformance by the Company of this Agreement and the Stockholder Agreement and
\nthe consummation by the Company of the transactions contemplated hereby and
\nthereby do not and will not (i) contravene, conflict with, or result in any
\nviolation or breach of any provision of the certificate of incorporation or
\nbylaws of the Company, (ii) assuming compliance with the matters referred to in
\nSection 4.03, contravene, conflict with, or result in a violation or breach of
\nany provision of any applicable law, statute, ordinance, rule, regulation,
\njudgment, injunction, order or decree, or (iii) require any consent or other
\naction by any Person under, constitute a default under, or cause or permit the
\ntermination, cancellation,<\/p>\n
16<\/p>\n
acceleration or other change of any right or obligation or the loss of any
\nbenefit to which the Company or any of its Subsidiaries is entitled under any
\nprovision of any agreement or other instrument binding upon the Company or any
\nof its Subsidiaries or any license, franchise, permit, certificate, approval or
\nother similar authorization affecting, or relating in any way to, the assets or
\nbusiness of the Company and its Subsidiaries except for such contraventions,
\nconflicts and violations referred to in clause (ii) and for such failures to
\nobtain any such consent or other action, defaults, terminations, cancellations,
\naccelerations, changes or losses referred to in clause (iii) that would not
\nhave, individually or in the aggregate, a Material Adverse Effect on the Company
\nor materially impair the ability of the Company to consummate the transactions
\ncontemplated by this Agreement and the Stockholder Agreement.<\/p>\n
SECTION 4.05. CAPITALIZATION. (a) The authorized capital stock of the
\nCompany consists of 120,000,000 shares of common stock, par value $0.001 per
\nshare, and 4,000,000 shares of preferred stock, par value $1.00 per share. As of
\nSeptember 18, 2001, there were outstanding (i) 72,324,224 Shares, (ii) no shares
\nof preferred stock, (iii) options issued under the Company’s stock option plans
\nto purchase an aggregate of 9,211,276 Shares (of which options to purchase, an
\naggregate of 3,518,862 Shares were exercisable), and (iv) $240,000,000 principal
\namount of notes (“CONVERTIBLE NOTES”) convertible into an aggregate of
\napproximately 4,356,508 Shares. As of September 18, 2001, 956,473 Shares were
\nreserved for issuance pursuant to the Company’s employee stock purchase plan.
\nAll outstanding shares of capital stock of the Company have been duly authorized
\nand validly issued and are fully paid and nonassessable.<\/p>\n
(b) Except (w) as set forth in Article 3 of this Agreement, this
\nSection 4.05 and Section 3.04 of the Stockholder Agreement, (x) for Shares
\nissuable to Merck KGaA pursuant to the Merck Agreement, (y) for changes since
\nSeptember 18, 2001 resulting from the exercise of options or warrants
\noutstanding on such date (or granted subsequent to such date as described in
\nclause (z) below), the conversion of Convertible Notes or the issuance of Shares
\npursuant to the Company’s employee stock purchase plan, and (z) up to 2,450,000
\nstock options granted subsequent to September 18, 2001, there are no issued or
\noutstanding (i) shares of capital stock or voting securities of the Company,
\n(ii) securities of the Company convertible into or exchangeable for shares of
\ncapital stock or voting securities of the Company, or (iii) options or other
\nrights to acquire from the Company or other obligation of the Company to issue,
\nany capital stock, voting securities or securities convertible into or
\nexchangeable for capital stock or voting securities of the Company (the items in
\nclauses (i), (ii) and (iii) being referred to collectively as the “COMPANY
\nSECURITIES”). There are no outstanding obligations of the Company or any of its
\nSubsidiaries to repurchase, redeem or otherwise acquire any of the Company
\nSecurities.<\/p>\n
17<\/p>\n
(c) No outstanding shares of capital stock of the Company have been
\nissued in violation of any purchase option, right of first refusal, preemptive
\nright, subscription right or any similar right under any provision of Delaware
\nLaw, the certificate of incorporation or by-laws of the Company or any contract
\nto which the Company is bound, except for such violations which would not have,
\nindividually or in the aggregate, a Material Adverse Effect on the Company.<\/p>\n
SECTION 4.06. SEC FILINGS. (a) The Company has filed all reports,
\nschedules, forms, statements and other documents required to be filed by the
\nCompany with the SEC between December 31, 2000 and the date of this Agreement
\n(the “COMPANY SEC DOCUMENTS”). As of its filing date, each Company SEC Document
\ncomplied as to form in all material respects with the applicable requirements of
\nthe 1933 Act and the 1934 Act, as the case may be, and the rules and regulations
\nof the SEC promulgated thereunder applicable to such Company SEC Document.<\/p>\n
(b) As of its filing date, each Company SEC Document filed pursuant to
\nthe 1934 Act did not contain any untrue statement of a material fact or omit to
\nstate any material fact necessary in order to make the statements made therein,
\nin the light of the circumstances under which they were made, not misleading.<\/p>\n
SECTION 4.07. FINANCIAL STATEMENTS. The audited consolidated financial
\nstatements and unaudited consolidated interim financial statements of the
\nCompany included in the Company SEC Documents fairly present, in conformity with
\ngenerally accepted accounting principles (“GAAP”) applied on a consistent basis
\n(except as may be indicated in the notes thereto), the consolidated financial
\nposition of the Company and its consolidated Subsidiaries as of the dates
\nthereof and their consolidated results of operations and cash flows for the
\nperiods then ended (subject to normal year-end adjustments in the case of any
\nunaudited interim financial statements).<\/p>\n
SECTION 4.08. NO UNDISCLOSED MATERIAL LIABILITIES. Neither the Company
\nnor any Subsidiary has any liabilities or obligations of any nature required by
\nGAAP to be set forth on a consolidated balance sheet of the Company and its
\nconsolidated subsidiaries or in the notes thereto, other than:<\/p>\n
(a) liabilities or obligations disclosed in the Company SEC Documents;<\/p>\n
(b) liabilities and obligations incurred in the ordinary course of
\nbusiness since December 31, 2000; and<\/p>\n
18<\/p>\n
(c) liabilities or obligations that would not have, individually or in
\nthe aggregate, a Material Adverse Effect on the Company.<\/p>\n
SECTION 4.09. COMPLIANCE WITH LAWS. Except as disclosed in the Company
\nSEC Documents, the Company and each of its Subsidiaries is in compliance with
\nand, to the knowledge of the Company, have not been charged with or given
\nwritten notice of any violation of, any applicable laws, except for failures to
\ncomply or violations that would not have, individually or in the aggregate, a
\nMaterial Adverse Effect on the Company or materially impair the ability of the
\nCompany to consummate the transactions contemplated by this Agreement and the
\nStockholder Agreement.<\/p>\n
SECTION 4.10. LITIGATION. Except as disclosed in the Company SEC
\nDocuments, there is no action, suit or proceeding pending against or, to the
\nknowledge of the Company, threatened against or affecting, the Company or any
\nSubsidiary of the Company that would have, individually or in the aggregate, a
\nMaterial Adverse Effect on the Company, nor is there any judgment outstanding
\nagainst the Company or any Subsidiary of the Company that would have a Material
\nAdverse Effect on the Company or materially impair the ability of the Company to
\nconsummate the transactions contemplated by this Agreement and the Stockholder
\nAgreement.<\/p>\n
SECTION 4.11. ABSENCE OF CERTAIN CHANGES. Except as disclosed in the
\nCompany SEC Documents, from December 31, 2000 to the date of this Agreement, the
\nbusiness of the Company and its Subsidiaries has been conducted in the ordinary
\ncourse and during such period there has not been any event, effect or
\ndevelopment that has had, individually or in the aggregate, a Material Adverse
\nEffect on the Company or would materially impair the ability of the Company to
\nconsummate the transactions contemplated by this Agreement and the Stockholder
\nAgreement.<\/p>\n
SECTION 4.12. INTELLECTUAL PROPERTY. Except as disclosed in the Company
\nSEC Documents, no claims are pending or, to the knowledge of the Company,
\nthreatened that the Company or any Subsidiary of the Company is infringing or
\notherwise adversely affecting the rights of any Person with respect to any
\nIntellectual Property Right, except for such claims that would not have,
\nindividually or in the aggregate, a Material Adverse Effect on the Company or
\nwould not materially impair the ability of the Company to consummate the
\ntransactions contemplated by this Agreement and the Stockholder Agreement.<\/p>\n
SECTION 4.13. ANTITAKEOVER STATUTES. The Company has taken all action
\nnecessary to exempt the Offer, any Share Issuance, this Agreement and the<\/p>\n
19<\/p>\n
transactions contemplated hereby from the restrictions of Section 203 of
\nDelaware Law.<\/p>\n
SECTION 4.14. ISSUED SHARES. When issued to Acquisition Sub pursuant to
\nthe terms of this Agreement, the Issued Shares will be duly authorized, validly
\nissued, fully paid and non-assessable and will be free and clear of encumbrances
\nor liens of any kind, other than restrictions imposed by applicable securities
\nlaws and the Stockholder Agreement.<\/p>\n
ARTICLE 5
\n REPRESENTATIONS AND WARRANTIES OF BMS<\/p>\n
BMS represents and warrants to the Company that:<\/p>\n
SECTION 5.01. CORPORATE EXISTENCE AND POWER. Each of BMS and
\nAcquisition Sub is a corporation duly incorporated, validly existing and in good
\nstanding under the laws of the State of Delaware and has all corporate powers
\nand all governmental licenses, authorizations, permits, consents and approvals
\nrequired to own, lease or otherwise hold its properties and assets and to carry
\non its business as now conducted, except for those licenses, authorizations,
\npermits, consents and approvals the absence of which would not have,
\nindividually or in the aggregate, a Material Adverse Effect on BMS. Since the
\ndate of its incorporation, Acquisition Sub has not engaged in any activities
\nother than in connection with this Agreement and the Stockholder Agreement. All
\nof the issued and outstanding shares of capital stock of Acquisition Sub are
\nowned by one or more subsidiaries of BMS, each of which is wholly owned by BMS.<\/p>\n
SECTION 5.02. CORPORATE AUTHORIZATION. The execution, delivery and
\nperformance by BMS and Acquisition Sub of this Agreement and the Stockholder
\nAgreement and the consummation by BMS and Acquisition Sub of the transactions
\ncontemplated hereby and thereby are within the corporate powers of BMS and
\nAcquisition Sub and have been duly authorized by all necessary corporate action
\non the part of BMS and Acquisition Sub. BMS and Acquisition Sub have duly
\nexecuted and delivered each of this Agreement and the Stockholder Agreement, and
\neach of this Agreement and the Stockholder Agreement constitutes a valid and
\nbinding agreement of BMS and Acquisition Sub.<\/p>\n
SECTION 5.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
\nperformance by BMS and Acquisition Sub of this Agreement and the Stockholder
\nAgreement and the consummation by BMS and Acquisition Sub of the
\ntransactions contemplated hereby and thereby require no action, consent,<\/p>\n
20<\/p>\n
approval, authorization, permit or order by or in respect of, or filing,
\ndeclaration or registration with, any governmental authority or agency in the
\nUnited States or any state thereof, other than (i) compliance with any
\napplicable requirements of the HSR Act, (ii) compliance with any applicable
\nrequirements of the 1933 Act, the 1934 Act and any other applicable securities
\nor takeover laws and (iii) any actions or filings the absence of which would not
\nhave, individually or in the aggregate, a Material Adverse Effect on BMS.<\/p>\n
SECTION 5.04. NON-CONTRAVENTION. The execution, delivery and
\nperformance by BMS and Acquisition Sub of this Agreement and the Stockholder
\nAgreement and the consummation by BMS and Acquisition Sub of the transactions
\ncontemplated hereby and thereby do not and will not (i) contravene, conflict
\nwith, or result in any violation or breach of any provision of the certificate
\nof incorporation or bylaws of BMS or Acquisition Sub, (ii) assuming compliance
\nwith the matters referred to in Section 5.03, contravene, conflict with, or
\nresult in any violation or breach of any provision of any applicable law,
\nstatute, ordinance, rule, regulation, judgment, injunction, order or decree or
\n(iii) require any consent or other action by any Person under, constitute a
\ndefault under, or cause or permit the termination, cancellation, acceleration or
\nother change of any right or obligation or the loss of any benefit to which BMS
\nor Acquisition Sub is entitled under any provision of any agreement or other
\ninstrument binding upon BMS or Acquisition Sub, except for such contraventions,
\nconflicts and violations referred to in clause (ii) and for such failures to
\nobtain consent or other action, defaults, terminations, cancellations,
\naccelerations, changes or losses referred to in clause (iii) that would not
\nhave, individually or in the aggregate, a Material Adverse Effect on BMS.<\/p>\n
SECTION 5.05. FINANCING. BMS has, and as of the Closing will have,
\nsufficient cash, available lines of credit or other sources of immediately
\navailable funds to enable Acquisition Sub to purchase all of the Shares to be
\nacquired in the Offer and any Share Issuance and to pay all related fees and
\nexpenses pursuant to the Offer and any Share Issuance.<\/p>\n
SECTION 5.06. INVESTMENT IN SHARES ACQUIRED PURSUANT TO THE SHARE
\nISSUANCE. Acquisition Sub is acquiring the Shares to be purchased pursuant to
\nany Share Issuance for its own account and for investment purposes only and not
\nwith a view to the resale or distribution of such Shares.<\/p>\n
SECTION 5.07. NO OWNERSHIP OF SHARES. Neither BMS nor any of its
\nAffiliates directly or indirectly beneficially owns any Shares.<\/p>\n
21<\/p>\n
ARTICLE 6
\n COVENANTS OF THE COMPANY<\/p>\n
The Company agrees that:<\/p>\n
SECTION 6.01. CONDUCT OF THE COMPANY. From the date hereof until the
\nClosing, the Company will not take any Prohibited Action (as defined in the
\nStockholder Agreement) without the consent of BMS.<\/p>\n
SECTION 6.02. NO SOLICITATION. The Company shall not, nor shall it
\nauthorize or permit any Subsidiary of the Company or any officer, director or
\nemployee of, or any investment banker, attorney or other advisor or
\nrepresentative of the Company or any Subsidiary of the Company to, directly or
\nindirectly, solicit, initiate or encourage the submission of, any Third-Party
\nChange of Control Offer.<\/p>\n
ARTICLE 7
\n COVENANTS OF BMS AND THE COMPANY<\/p>\n
The parties hereto agree that:<\/p>\n
SECTION 7.01. REASONABLE BEST EFFORTS. (a) Subject to the terms and
\nconditions of this Agreement, the Company and BMS will use their reasonable best
\nefforts to take, or cause to be taken, all actions and to do, or cause to be
\ndone, all things necessary, proper or advisable under applicable laws and
\nregulations to consummate the transactions contemplated by this Agreement
\nincluding, without limitation, using their reasonable best efforts to cause the
\nconditions to the Offer to be satisfied as soon as reasonably possible and,
\nsubject to the terms and conditions of this Agreement, consummating the Offer
\nand, if necessary, any Share Issuance as soon as possible after such conditions
\nare satisfied or waived. In furtherance and not in limitation of the foregoing,
\neach of BMS and the Company agrees to make an appropriate filing of a
\nNotification and Report Form pursuant to the HSR Act (an “HSR FILING”) with
\nrespect to the transactions contemplated hereby as promptly as practicable and
\nin any event within ten Business Days of the date hereof and to supply as
\npromptly as practicable any additional information and documentary material that
\nmay be requested pursuant to the HSR Act and to take all other actions necessary
\nto cause the expiration or termination of the applicable waiting periods under
\nthe HSR Act as soon as practicable.<\/p>\n
22<\/p>\n
(b) In connection with the efforts referenced in Section 7.01(a) to
\nobtain all requisite approvals and authorizations for the transactions
\ncontemplated by this Agreement under the HSR Act or any other Antitrust Law,
\neach of BMS and the Company shall use its reasonable best efforts to cooperate
\nin all respects with each other in connection with any filing or submission and
\nin connection with any investigation or other inquiry, including any proceeding
\ninitiated by a private party, keep the other party informed in all material
\nrespects of any material communication received by such party from, or given by
\nsuch party to, the Federal Trade Commission (the “FTC”), the Antitrust Division
\nof the Department of Justice (the “DOJ”) or any other governmental authority and
\nof any material communication received or given in connection with any
\nproceeding by a private party, in each case regarding any of the transactions
\ncontemplated hereby and permit the other party to review any material
\ncommunication given by it to, and consult with each other in advance of any
\nmeeting or conference with, the FTC, the DOJ or any such other governmental
\nauthority or private party. Subject to the Confidentiality Agreement, and any
\nattorney-client, work product or other privilege, each of the parties hereto
\nwill coordinate and cooperate fully with the other parties hereto in exchanging
\nsuch information and providing such assistance as such other parties may
\nreasonably request in connection with the foregoing and in seeking early
\ntermination of any applicable waiting periods under the HSR Act. For purposes of
\nthis Agreement, “ANTITRUST LAW” means the Sherman Act, the Clayton Act, the HSR
\nAct, the Federal Trade Commission Act, and all other federal, state and foreign,
\nif any, statutes, rules, regulations, orders, decrees, administrative and
\njudicial doctrines and other laws that are designed or intended to prohibit,
\nrestrict or regulate actions having the purpose or effect of monopolization or
\nrestraint of trade or lessening of competition through merger or acquisition.<\/p>\n
(c) In furtherance and not in limitation of the covenants of the
\nparties contained in Section 7.01(a) and 7.01(b), each of BMS and the Company
\nshall use its reasonable best efforts to resolve such objections, if any, as may
\nbe asserted with respect to the transactions contemplated hereby under any
\nAntitrust Law. In connection with the foregoing, if any administrative or
\njudicial action or proceeding, including any proceeding by a private party, is
\ninstituted (or threatened to be instituted) challenging any transaction
\ncontemplated by this Agreement as violative of any Antitrust Law, each of BMS
\nand the Company shall cooperate in all respects with each other and use its
\nrespective reasonable best efforts to contest and resist any such action or
\nproceeding and to have vacated, lifted, reversed or overturned any decree,
\njudgment, injunction or other order, whether temporary, preliminary or
\npermanent, that is in effect and that prohibits, prevents or restricts
\nconsummation of the transactions contemplated by this Agreement.<\/p>\n
23<\/p>\n
(d) If any objections are asserted with respect to the transactions
\ncontemplated hereby under any Antitrust Law or if any suit is instituted by any
\ngovernment authority or any private party challenging any of the transactions
\ncontemplated hereby as violative of any Antitrust Law, each of BMS and the
\nCompany shall use its reasonable best efforts to resolve such objections or
\nchallenge as such governmental authority or private party may have to such
\ntransactions under such Antitrust Law so as to permit consummation of the
\ntransactions contemplated by this Agreement.<\/p>\n
SECTION 7.02. CERTAIN FILINGS. The Company and BMS shall cooperate with
\none another (i) in connection with the preparation of the Company Disclosure
\nDocuments and the Offer Documents, (ii) in determining whether any action by or
\nin respect of, or filing with, any governmental body, agency, official, or
\nauthority is required, or any actions, consents, approvals or waivers are
\nrequired to be obtained from parties to any material contracts, in connection
\nwith the consummation of the transactions contemplated by this Agreement, and
\n(iii) in taking such actions or making any such filings, furnishing information
\nrequired in connection therewith or with the Company Disclosure Documents or the
\nOffer Documents and seeking timely to obtain any such actions, consents,
\napprovals or waivers.<\/p>\n
SECTION 7.03. PUBLIC ANNOUNCEMENTS. The Company and BMS will issue
\nseparate press releases promptly after the execution of this Agreement, each in
\nthe form previously agreed between the Company and BMS, and thereafter BMS and
\nthe Company will consult with each other before issuing any press release or
\nmaking any public statement with respect to this Agreement, the Stockholder
\nAgreement or the transactions contemplated hereby or thereby and, except as may
\nbe required by applicable law or any listing agreement with any national
\nsecurities exchange or automated quotation system, will not issue any such press
\nrelease or make any such public statement prior to such consultation.<\/p>\n
SECTION 7.04. NOTICES OF CERTAIN EVENTS. Each of the Company and BMS
\nshall promptly notify the other party of:<\/p>\n
(a) any notice or other communication from any Person alleging that
\nthe consent of such Person is or may be required in connection with the
\ntransactions contemplated by this Agreement or the Stockholder Agreement;<\/p>\n
(b) any notice or other communication from any governmental or
\nregulatory agency or authority in connection with the transactions contemplated
\nby this Agreement or the Stockholder Agreement; and<\/p>\n
24<\/p>\n
(c) any failure of a condition set forth in paragraph (b), (c) or (d)
\nof Annex I to this Agreement of which the Company has actual knowledge;
\nPROVIDED, that no such notification shall affect the representations, warranties
\nor obligations of the parties or the conditions to the obligations of the
\nparties under this Agreement, the Stockholder Agreement or the Commercial
\nArrangements.<\/p>\n
ARTICLE 8
\n TERMINATION<\/p>\n
SECTION 8.01. TERMINATION. This Agreement may be terminated at any
\ntime:<\/p>\n
(a) by mutual written agreement of the Company and BMS;<\/p>\n
(b) by either the Company or BMS, if the Offer has not been consummated
\non or before the Termination Date; PROVIDED that this Agreement may not be
\nterminated by any party pursuant to this Section 8.01(b) if, at the time of
\ntermination, either (A) there exists a Non-Third Party Change of Control
\nInjunction, or (B) the Market Failure Condition is not satisfied; PROVIDED
\nFURTHER, that the right to terminate this Agreement pursuant to this Section
\n8.01(b) shall not be available to any party whose failure to perform any of its
\nobligations under this Agreement results in the failure of the Offer not to be
\nso consummated;<\/p>\n
(c) by the Company, if Acquisition Sub shall have failed to commence
\nthe Offer in the time required by this Agreement;<\/p>\n
(d) by BMS, if (i) any of the representations or warranties of the
\nCompany contained in this Agreement (other than the representations and
\nwarranties set forth in Sections 4.05(a) and (b) hereof) or the Commercial
\nArrangements, disregarding all qualifications and exceptions contained therein
\nrelating to materiality or Material Adverse Effect, shall fail to be true and
\ncorrect as of the date made (or if expressly made as of an earlier date, as of
\nsuch date), other than for such failures to be true and correct that would not
\nhave, individually or in the aggregate, a Material Adverse Effect on the
\nCompany, (ii) the representations and warranties of the Company set forth in
\nSections 4.05(a) and (b) hereof shall fail to be true and correct in all
\nmaterial respects as of the date made, (iii) the Company shall have breached or
\nfailed to perform in any material respect any of its obligations under the
\nAcquisition Agreement required to be performed on or prior to such time, or (iv)
\nthe Company shall have taken a Prohibited Action without the consent of BMS
\nafter the date of this Agreement; PROVIDED that such breach of representation or
\nwarranty or breach or failure to<\/p>\n
25<\/p>\n
perform such obligation cannot be or has not been cured within 30 days after the
\ngiving of written notice to the Company of such breach or failure to perform;
\nPROVIDED FURTHER, that BMS may not terminate this Agreement under this Section
\n8.01(d) if either BMS or Acquisition Sub is then in breach of or has failed to
\nperform in any material respect any of its obligations hereunder or under the
\nStockholder Agreement or, in the case of BMS only, under the Commercial
\nArrangements;<\/p>\n
(e) by the Company, if (i) any of the representations or warranties of
\nBMS contained in this Agreement or the Commercial Arrangements, disregarding all
\nqualifications and exceptions contained therein relating to materiality or
\nMaterial Adverse Effect, shall fail to be true and correct as of the date made
\n(or if expressly made as of an earlier date, as of such date), other than for
\nsuch failures to be true and correct that would not have, individually or in the
\naggregate, a Material Adverse Effect on BMS, and (ii) either BMS or Acquisition
\nSub shall have breached or failed to perform in any material respect any of its
\nobligations under this Agreement, the Stockholder Agreement or, in the case of
\nBMS only, the Commercial Arrangements required to be performed on or prior to
\nsuch time; PROVIDED that such breach of representation or warranty or breach or
\nfailure to perform such obligation cannot be or has not been cured within 30
\ndays after the giving of written notice to BMS of such breach or failure to
\nperform; PROVIDED FURTHER, that the Company may not terminate this Agreement
\nunder this Section 8.01(e) if it is then in breach of or has failed to perform
\nin any material respect any of its obligations hereunder or under the Commercial
\nArrangements or the Stockholder Agreement; or<\/p>\n
(f) by either the Company or BMS, if:<\/p>\n
(i) under the terms of this Agreement, subject to the
\n satisfaction of the conditions set forth in Section 3.01(d),
\n the Company, BMS and Acquisition Sub are obligated to effect
\n the Additional Share Issuance, and the Additional Share
\n Issuance is not consummated within thirty days after the date
\n on which Acquisition Sub has accepted for purchase Shares
\n tendered in the Offer; PROVIDED that the right to terminate
\n this Agreement pursuant to this Section 8.01(f)(i) shall not
\n be available to any party whose failure to perform any of its
\n obligations under this Agreement results in the failure of the
\n Additional Share Issuance not to be so consummated;<\/p>\n
(ii) under the terms of this Agreement, subject to the
\n satisfaction of the conditions set forth in Section 3.02(d),
\n the Company, BMS and Acquisition Sub are obligated to effect
\n the<\/p>\n
26<\/p>\n
Market Failure Share Issuance, and the Market Failure Share
\n Issuance is not consummated within thirty days after the
\n termination of the Offer by either party pursuant to Section
\n 3.02(a); PROVIDED that the right to terminate this Agreement
\n pursuant to this Section 8.01(f)(ii) shall not be available to
\n any party whose failure to perform any of its obligations
\n under this Agreement results in the failure of the Market
\n Failure Share Issuance not to be so consummated; or<\/p>\n
(iii) under the terms of this Agreement, subject to the
\n satisfaction of the conditions set forth in Section 3.03(f),
\n the Company, BMS and Acquisition Sub are obligated to effect
\n the Open Market Top-Up Share Issuance, and the Open Market
\n Top- Up Share Issuance is not consummated within thirty days
\n after the final day of the Open Market Purchase Period;
\n PROVIDED that the right to terminate this Agreement pursuant
\n to this Section 8.01(f)(iii) shall not be available to any
\n party whose failure to perform any of its obligations under
\n this Agreement results in the failure of the Open Market
\n Top-Up Share Issuance not to be so consummated.<\/p>\n
The party desiring to terminate this Agreement pursuant to this Section 8.01
\n(other than pursuant to Section 8.01(a)) shall give notice of such termination
\nto the other party.<\/p>\n
SECTION 8.02. EFFECT OF TERMINATION. If this Agreement is terminated
\npursuant to Section 8.01, this Agreement shall become void and of no effect with
\nno liability on the part of any party (or any stockholder, director, officer,
\nemployee, agent, consultant or representative of such party) to the other party
\nhereto, PROVIDED that such termination shall not relieve a party hereto from any
\nliability for damages incurred or suffered by the other party as a result of the
\nfailure of such party’s representations and warranties hereunder to be true or
\nthe failure of such party to perform any covenant hereunder. The provisions of
\nSections 3.03(c), 8.02, 9.04, 9.06, 9.07 and 9.08 shall survive any termination
\nhereof pursuant to Section 8.01.<\/p>\n
27<\/p>\n
ARTICLE 9
\n MISCELLANEOUS<\/p>\n
SECTION 9.01. NOTICES. All notices, requests and other communications
\nto any party hereunder shall be in writing (including facsimile transmission)
\nand shall be given,<\/p>\n
if to the Company, to:<\/p>\n
ImClone Systems Incorporated
\n 180 Varick Street, 7th Floor
\n New York, New York 10014
\n Attn: John Landes, Esq.
\n General Counsel
\n Fax: (212) 645-2054<\/p>\n
with a copy to:<\/p>\n
Davis Polk & Wardwell
\n 450 Lexington Avenue
\n New York, New York 10017
\n Fax: (212) 450-4800
\n Attn: Phillip R. Mills, Esq.<\/p>\n
if to BMS or Acquisition Sub, to:<\/p>\n
Bristol-Myers Squibb Company
\n 345 Park Avenue
\n New York, New York 10154
\n Attn: General Counsel
\n Fax: (212) 546-4020<\/p>\n
with a copy to:<\/p>\n
Cravath, Swaine & Moore
\n Worldwide Plaza
\n 825 Eighth Avenue
\n New York, New York 10019
\n Fax: (212) 474-3700
\n Attn: Susan Webster, Esq.<\/p>\n
or such other address or facsimile number as such party may hereafter specify
\nfor the purpose by notice to the other parties hereto. All such notices,
\nrequests and<\/p>\n
28<\/p>\n
other communications shall be deemed received on the date of receipt by the
\nrecipient thereof if received prior to 5 p.m. in the place of receipt and such
\nday is a Business Day in the place of receipt. Otherwise, any such notice,
\nrequest or communication shall be deemed not to have been received until the
\nnext succeeding Business Day in the place of receipt.<\/p>\n
SECTION 9.02. SURVIVAL. The representations and warranties and
\nagreements contained herein and in any certificate or other writing delivered
\npursuant hereto shall not survive the Closing, except for the agreements set
\nforth in the final sentence of Section 2.01(a) and Sections 3.03(c), 9.04, 9.05,
\n9.06, 9.07 and 9.08.<\/p>\n
SECTION 9.03. AMENDMENTS; NO WAIVERS. (a) Any provision of this
\nAgreement may be amended or waived prior to the Closing if, but only if, such
\namendment or waiver is in writing and is signed, in the case of an amendment, by
\neach party to this Agreement or, in the case of a waiver, by each party against
\nwhom the waiver is to be effective.<\/p>\n
(b) No failure or delay by any party in exercising any right, power or
\nprivilege hereunder shall operate as a waiver thereof nor shall any single or
\npartial exercise thereof preclude any other or further exercise thereof or the
\nexercise of any other right, power or privilege. The rights and remedies herein
\nprovided shall be cumulative and not exclusive of any rights or remedies
\nprovided by law.<\/p>\n
SECTION 9.04. EXPENSES. All costs and expenses incurred in connection
\nwith this Agreement shall be paid by the party incurring such cost or expense.<\/p>\n
SECTION 9.05. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
\nshall be binding upon and inure to the benefit of the parties hereto and their
\nrespective successors and assigns, PROVIDED that no party may assign, delegate
\nor otherwise transfer any of its rights or obligations under this Agreement
\nwithout the consent of each other party hereto.<\/p>\n
SECTION 9.06. GOVERNING LAW. This Agreement shall be governed by and
\nconstrued in accordance with the laws of the State of New York, without regard
\nto the conflicts of laws rules of such state.<\/p>\n
SECTION 9.07. JURISDICTION. Any suit, action or proceeding seeking to
\nenforce any provision of, or based on any matter arising out of or in connection
\nwith, this Agreement or the transactions contemplated hereby may be brought in
\nany federal court located in the State of New York or, to the extent no such
\nfederal court has jurisdiction over such action, suit or proceeding, any New
\nYork state court, and each of the parties hereby consents to the jurisdiction of
\nsuch courts<\/p>\n
29<\/p>\n
(and of the appropriate appellate courts therefrom) in any such suit, action or
\nproceeding and irrevocably waives, to the fullest extent permitted by law, any
\nobjection that it may now or hereafter have to the laying of the venue of any
\nsuch suit, action or proceeding in any such court or that any such suit, action
\nor proceeding brought in any such court has been brought in an inconvenient
\nform. Process in any such suit, action or proceeding may be served on any party
\nanywhere in the world, whether within or without the jurisdiction of any such
\ncourt. Without limiting the foregoing, each party agrees that service of process
\non such party as provided in Section 9.01 shall be deemed effective service of
\nprocess on such party.<\/p>\n
SECTION 9.08. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
\nIRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
\nARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
\nHEREBY.<\/p>\n
SECTION 9.09. COUNTERPARTS; EFFECTIVENESS; BENEFIT. This Agreement may
\nbe signed in any number of counterparts, each of which shall be an original,
\nwith the same effect as if the signatures thereto and hereto were upon the same
\ninstrument. This Agreement shall become effective when each party hereto shall
\nhave received counterparts hereof signed by all of the other parties hereto. No
\nprovision of this Agreement is intended to confer any rights, benefits,
\nremedies, obligations, or liabilities hereunder upon any Person other than the
\nparties hereto and their respective successors and assigns.<\/p>\n
SECTION 9.10. ENTIRE AGREEMENT. This Agreement, the disclosure letter
\nreferred to in Article 4, the Confidentiality Agreement, the Commercial
\nArrangements and the Stockholder Agreement constitute the entire agreement
\nbetween the parties with respect to the subject matter of this Agreement and
\nsupersede all prior agreements and understandings, both oral and written,
\nbetween the parties with respect to the subject matter of this Agreement.<\/p>\n
SECTION 9.11. CAPTIONS. The captions herein are included for
\nconvenience of reference only and shall be ignored in the construction or
\ninterpretation hereof.<\/p>\n
SECTION 9.12. SEVERABILITY. If any term, provision, covenant or
\nrestriction of this Agreement is held by a court of competent jurisdiction or
\nother authority to be invalid, void or unenforceable, the remainder of the
\nterms, provisions, covenants and restrictions of this Agreement shall remain in
\nfull force and effect and shall in no way be affected, impaired or invalidated
\nso long as the economic or legal substance of the transactions contemplated
\nhereby is not affected in any<\/p>\n
30<\/p>\n
manner materially adverse to any party. Upon such a determination, the parties
\nshall negotiate in good faith to modify this Agreement so as to effect the
\noriginal intent of the parties as closely as possible in an acceptable manner in
\norder that the transactions contemplated hereby be consummated as originally
\ncontemplated to the fullest extent possible.<\/p>\n
SECTION 9.13. SPECIFIC PERFORMANCE. The parties hereto agree that
\nirreparable damage would occur if any provision of this Agreement were not
\nperformed in accordance with the terms hereof and that the parties shall be
\nentitled to an injunction or injunctions to prevent breaches of this Agreement
\nor to enforce specifically the performance of the terms and provisions hereof in
\nany federal court located in the State of New York or, to the extent no such
\nfederal court has jurisdiction over such proceeding, any New York state court,
\nin addition to any other remedy to which they are entitled at law or in equity.<\/p>\n
SECTION 9.14. ADDITIONAL COVENANT OF BMS. BMS shall take all action
\nnecessary to cause Acquisition Sub to perform its obligations under this
\nAgreement and to consummate the transactions contemplated hereby on the terms
\nand conditions set forth in this Agreement, including without limitation,
\nproviding to Acquisition Sub all funds required by it to purchase all of the
\nShares to be acquired in the Offer and any Share Issuance.<\/p>\n
31<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nduly executed by their respective authorized officers as of the day and year
\nfirst above written.<\/p>\n
IMCLONE SYSTEMS INCORPORATED<\/p>\n
By: \/s\/ Samuel D. Waskal, Ph.D.
\n ——————————————
\n Name: Samuel D. Waskal, Ph.D.
\n Title: President and Chief Executive
\n Officer<\/p>\n
BRISTOL-MYERS SQUIBB COMPANY<\/p>\n
By: \/s\/ Brian Markison
\n ——————————————
\n Name: Brian Markison
\n Title: Senior Vice President – External
\n Affairs, Worldwide Medicines
\n Group<\/p>\n
BRISTOL-MYERS SQUIBB BIOLOGICS
\n COMPANY<\/p>\n
By: \/s\/ Sandra Leung
\n ——————————————
\n Name: Sandra Leung
\n Title: Corporate Secretary<\/p>\n
32<\/p>\n
ANNEX I<\/p>\n
Notwithstanding any other provision of the Offer, but subject to the terms of
\nthe Acquisition Agreement, Acquisition Sub shall not be required to accept for
\npayment any Shares and may terminate the Offer, if (i) prior to the expiration
\ndate of the Offer, the applicable waiting period under the HSR Act shall not
\nhave expired or been terminated, or (ii) at any time on or after September 19,
\n2001 and prior to the acceptance for payment of Shares by Acquisition Sub, any
\nof the following conditions exists:<\/p>\n
(a) there shall have been any action taken, or any statute, rule,
\nregulation, injunction, judgment, order or decree enacted, enforced, entered,
\npromulgated, issued or deemed applicable to BMS, Acquisition Sub, the Company or
\nthe Offer, by any court, government or governmental authority or agency in the
\nUnited States or any state thereof, other than the application of the waiting
\nperiod provisions of the HSR Act to the Offer, that prohibits the consummation
\nof the Offer or imposes material limitations on the ability of BMS or
\nAcquisition Sub to acquire or hold, or exercise full rights of ownership of, any
\nShares validly tendered and not withdrawn in the Offer, including the right to
\nvote such Shares on all matters properly presented to the stockholders of the
\nCompany;<\/p>\n
(b) the Company shall have breached or failed to perform in any
\nmaterial respect any of its obligations under the Acquisition Agreement required
\nto be performed on or prior to such time;<\/p>\n
(c) the Company shall have taken a Prohibited Action without the
\nconsent of BMS after the date of the Acquisition Agreement;<\/p>\n
(d) (i) any of the representations and warranties of the Company
\ncontained in the Acquisition Agreement (other than the representations and
\nwarranties of the Company set forth in Sections 4.05(a) and (b) of the
\nAcquisition Agreement) or the Commercial Arrangements, disregarding all
\nqualifications and exceptions contained therein relating to materiality or
\nMaterial Adverse Effect, shall fail to be true and correct as of the date made
\n(or if expressly made as of an earlier date, as of such date), other than for
\nsuch failures to be true and correct that would not have, individually or in the
\naggregate, a Material Adverse Effect on the Company, or (ii) the representations
\nand warranties of the Company set forth in Sections 4.05(a) or (b) of the
\nAcquisition Agreement shall fail to be true and correct in all material respects
\nas of the date made (or if expressly made as of an earlier date, as of such
\ndate);<\/p>\n
(e) the Acquisition Agreement shall have been terminated in accordance
\nwith its terms; or<\/p>\n
(f) there shall have occurred (i) any general suspension of trading in
\nsecurities on the Nasdaq National Market quotation system or (ii) a declaration
\nof a banking moratorium by federal or New York authorities or (iii) any
\nsuspension of payments in respect of banks in the United States that regularly
\nparticipate in the market in loans to large corporations, in each case which
\nwould prevent the acceptance for payment or the payment for Shares accepted for
\npayment in the Offer,<\/p>\n
which, in the good faith reasonable judgment of BMS in any
\nsuch case makes it inadvisable to proceed with such acceptance for payment.<\/p>\n
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