<\/p>\nSection 8.2 Effect of Termination…………………………………… 48
\nSection 8.3 Amendment……………………………………………… 50
\nSection 8.4 Waiver………………………………………………… 50
\nSection 8.5 Fees and Expenses………………………………………. 50<\/p>\n
ARTICLE 9. General Provisions……………………………………….. 50<\/p>\n
Section 9.1 Non-Survival of Representations and Warranties…………….. 50
\nSection 9.2 Notices……………………………………………….. 50
\nSection 9.3 Certain Definitions…………………………………….. 52
\nSection 9.4 Terms Defined Elsewhere…………………………………. 58
\nSection 9.5 Headings………………………………………………. 61
\nSection 9.6 Severability…………………………………………… 61
\nSection 9.7 Entire Agreement……………………………………….. 61
\nSection 9.8 Assignment…………………………………………….. 61
\nSection 9.9 Parties in Interest…………………………………….. 61
\nSection 9.10 Mutual Drafting………………………………………… 61
\nSection 9.11 Governing Law; Consent to Jurisdiction; Waiver of Trial
\n by Jury……………………………………………… 62
\nSection 9.12 Specific Performance……………………………………. 63
\nSection 9.13 Disclosure…………………………………………….. 63
\nSection 9.14 Counterparts…………………………………………… 63<\/p>\n
Exhibit 6.12 Form of Affiliate Letter<\/p>\n
Exhibit 7.2(c)(i) Parent Tax Matters Certificate<\/p>\n
Exhibit 7.2(c)(ii) Company Tax Matters Certificate
\n<\/c><\/s><\/caption>\n<\/table>\n
iii<\/p>\n
AGREEMENT AND PLAN OF MERGER, dated as of December 16, 2001
\n(this “Agreement”), by and among Amgen Inc., a Delaware corporation (“Parent”),
\n ——— ——
\nAMS Acquisition Inc., a Washington corporation and a wholly-owned subsidiary of
\nParent (“Merger Sub”), and Immunex Corporation, a Washington corporation (the
\n ———-
\n“Company”).
\n ——-<\/p>\n
WHEREAS, the respective Boards of Directors of Parent, Merger
\nSub and the Company have approved the merger of Merger Sub with and into the
\nCompany (the “Merger”) upon the terms and subject to the conditions of this
\n ——
\nAgreement and in accordance with the Business Corporation Act of the State of
\nWashington (the “WBCA”);
\n —-<\/p>\n
WHEREAS, the respective Boards of Directors of Parent and the
\nCompany have determined that the Merger is in furtherance of and consistent with
\ntheir respective business strategies and is in the best interest of their
\nrespective shareholders, and Parent has approved this Agreement and the Merger
\nas the sole shareholder of Merger Sub;<\/p>\n
WHEREAS, as a condition to and inducement to Parent’s and
\nMerger Sub’s willingness to enter into this Agreement, simultaneously with the
\nexecution of this Agreement, American Home Products Corporation, a Delaware
\ncorporation and shareholder of the Company (“AHP”), is entering into a
\nShareholder Voting Agreement with Parent and Merger Sub (the “Voting
\n ——
\nAgreement”);
\n———<\/p>\n
WHEREAS, for federal income tax purposes, it is intended that
\nthe Merger shall qualify as a reorganization within the meaning of Section
\n368(a) of the Internal Revenue Code of 1986, as amended (the “Code”); and
\n —-<\/p>\n
WHEREAS, certain capitalized terms used herein are defined
\nin Section 9.3;<\/p>\n
NOW, THEREFORE, in consideration of the foregoing and the
\nrespective representations, warranties, covenants and agreements set forth in
\nthis Agreement and intending to be legally bound hereby, the parties hereto
\nagree as follows:<\/p>\n
ARTICLE 1.
\n THE MERGER<\/p>\n
Section 1.1 The Merger. Upon the terms and subject to satisfaction or
\n ———-
\nwaiver of the conditions set forth in this Agreement, and in accordance with the
\nWBCA, at the Effective Time, Merger Sub shall be merged with and into the
\nCompany. As a result of the Merger, the separate corporate existence of Merger
\nSub shall cease and the Company shall continue as the surviving corporation of
\nthe Merger (the “Surviving Corporation”).
\n ———————<\/p>\n
Section 1.2 Closing. The closing of the Merger (the “Closing”) shall take
\n ——- ——-
\nplace on the first Business Day after the satisfaction or waiver (subject to
\napplicable Law) of the conditions (excluding conditions that, by their nature,
\ncannot be satisfied until the Closing Date) set forth in Article 7, unless this
\nAgreement has been theretofore terminated pursuant to its terms or unless
\nanother time or date is agreed to in writing by the parties hereto (the actual
\ndate of the Closing being referred to herein as the “Closing Date”). The Closing
\n ————
\nshall be held at the offices of Latham & Watkins, 633 West Fifth
\nStreet, Suite 4000, Los Angeles, California 90071, unless another place is
\nagreed to in writing by the parties hereto. As soon as practicable after the
\nClosing Date, the parties hereto shall cause the Merger to be consummated by
\nfiling articles of<\/p>\n
merger relating to the Merger (the “Articles of Merger”) with the Secretary of
\n ——————
\nState of the State of Washington, in such form as required by, and executed in
\naccordance with the relevant provisions of, the WBCA (the date and time of such
\nfiling, or if another date and time is specified in such filing, such specified
\ndate and time, being the “Effective Time”).
\n ————–<\/p>\n
Section 1.3 Effect of the Merger. At the Effective Time, the effect
\n ——————–
\nof the Merger shall be as provided in the applicable provisions of the WBCA.
\nWithout limiting the generality of the foregoing, at the Effective Time, except
\nas otherwise provided herein, all the property, rights, privileges, powers and
\nfranchises of the Company and Merger Sub shall vest in the Surviving
\nCorporation, and all debts, liabilities and duties of the Company and Merger Sub
\nshall become the debts, liabilities and duties of the Surviving Corporation.<\/p>\n
Section 1.4 Articles of Incorporation; Bylaws.
\n ———————————<\/p>\n
(a) Articles of Incorporation. At the Effective Time, the Articles of
\nIncorporation of the Surviving Corporation shall be amended in their entirety to
\nread as the Articles of Incorporation of Merger Sub, until thereafter changed or
\namended as provided therein or by applicable Law, except that Article I thereof
\nshall be amended to read as follows: “The name of the Corporation is Immunex
\nCorporation.” Such Articles shall not be inconsistent with Section 6.10.<\/p>\n
(b) Bylaws. At the Effective Time, the Bylaws of Merger Sub, as in
\neffect immediately prior to the Effective Time, shall be the Bylaws of the
\nSurviving Corporation, until thereafter changed or amended as provided therein
\nor by applicable Law. Such Bylaws shall not be inconsistent with Section 6.10.<\/p>\n
Section 1.5 Directors and Officers of the Surviving Corporation. The
\n —————————————————
\ndirectors of Merger Sub immediately prior to the Effective Time shall be the
\ninitial directors of the Surviving Corporation, each to hold office in
\naccordance with the Articles of Incorporation and Bylaws of the Surviving
\nCorporation. The officers of Merger Sub immediately prior to the Effective Time
\nshall be the initial officers of the Surviving Corporation, each to hold office
\nin accordance with the Articles of Incorporation and Bylaws of the Surviving
\nCorporation.<\/p>\n
Section 1.6 Directors of Parent. At or prior to the Effective Time,
\n ——————-
\nthe Board of Directors of Parent shall take all action necessary so that,
\neffective immediately following the Effective Time, Edward V. Fritzky shall be
\nappointed to the Board of Directors of Parent. If at the Effective Time Parent
\nhas multiple classes of directors, Parent shall take all action reasonably
\nnecessary, subject to applicable Law, to appoint Mr. Fritzky to the class of
\ndirectors with the longest remaining term as of the Effective Time, provided,
\nthat Parent shall not be required to request that an incumbent director of
\nParent switch classes.<\/p>\n
ARTICLE 2.
\n CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES<\/p>\n
Section 2.1 Conversion of Securities. At the Effective Time, by virtue
\n ————————
\nof the Merger and without any action on the part of Merger Sub, the Company or
\nthe holders of any of the following securities:<\/p>\n
2<\/p>\n
(a) Conversion Generally. Each share of common stock, par value $0.01 per
\nshare, of the Company (“Company Common Stock”) issued and outstanding
\n ——————–
\nimmediately prior to the Effective Time (other than any shares of Company Common
\nStock to be canceled pursuant to Section 2.1(b) and dissenting shares referred
\nto in Section 2.1(e)) shall be converted, subject to Section 2.2(e), into the
\nright to receive (i) 0.440 (the “Exchange Ratio”) of a share of common stock,
\n ————–
\npar value $0.0001 per share (“Parent Common Stock”), of Parent (the “Common
\n ——————- ——
\nStock Consideration”) and (ii) $4.50 in cash (the “Cash Consideration,” and
\n——————- ——————
\ntogether with the Common Stock Consideration, the “Merger Consideration”). All
\n ——————–
\nsuch shares of Company Common Stock shall no longer be outstanding and shall
\nautomatically be canceled and retired and shall cease to exist, and each
\ncertificate previously representing any such shares shall thereafter represent
\nthe right to receive the Merger Consideration payable in respect of such shares
\nof Company Common Stock.<\/p>\n
(b) Parent-Owned Shares. All shares of Company Common Stock owned by Parent
\nor any of its Subsidiaries shall be cancelled and retired and shall cease to
\nexist and no Merger Consideration or other consideration shall be delivered in
\nexchange therefor.<\/p>\n
(c) Merger Sub. Each share of common stock of Merger Sub issued and
\noutstanding immediately prior to the Effective Time shall be converted into and
\nbe exchanged for one newly and validly issued, fully paid and nonassessable
\nshare of common stock of the Surviving Corporation.<\/p>\n
(d) Change in Shares. If, between the date of this Agreement and the
\nEffective Time, the outstanding shares of Parent Common Stock or Company Common
\nStock shall have been changed into, or exchanged for, a different number of
\nshares or a different class, by reason of any stock dividend, subdivision,
\nreclassification, recapitalization, split, combination or exchange of shares,
\nthe Exchange Ratio and the Option Exchange Ratio shall be correspondingly
\nadjusted to provide the holders of Company Common Stock and Company Options the
\nsame economic effect as contemplated by this Agreement prior to such event.<\/p>\n
(e) Dissenting Shares. Notwithstanding anything in this Agreement to the
\ncontrary, with respect to each share of Company Common Stock as to which the
\nholder thereof shall have properly complied with the provisions of Chapter
\n23B.13 of the WBCA as to dissenters’ rights (each, a “Dissenting Share”), if
\n —————-
\nany, such holder shall be entitled to payment, solely from the Surviving
\nCorporation, of the appraisal value of the Dissenting Shares to the extent
\npermitted by and in accordance with the provisions of Chapter 23B.13 of the
\nWBCA; provided, however, that (i) if any holder of Dissenting Shares, under the
\ncircumstances permitted by and in accordance with the WBCA, affirmatively
\nwithdraws such holder’s demand for appraisal of such Dissenting Shares, (ii) if
\nany holder of Dissenting Shares fails to establish such holder’s entitlement to
\ndissenters’ rights as provided in the WBCA or (iii) if any holder of Dissenting
\nShares takes or fails to take any action the consequence of which is that such
\nholder is not entitled to payment for such holder’s shares under the WBCA, such
\nholder or holders (as the case may be) shall forfeit the right to appraisal of
\nsuch shares of Company Common Stock and such shares of Company Common Stock
\nshall thereupon be deemed to have been converted, as of the Effective Time, into
\nand represent the right to receive the Merger Consideration payable in respect
\nof such shares of Company Common Stock. The Company shall give Parent prompt
\nnotice of any demands received by the Company for appraisal of shares of Company
\nCommon<\/p>\n
3<\/p>\n
Stock, and Parent shall have the right to participate in all negotiations and
\nproceedings with respect to such demands. The Company shall not settle, make any
\npayments with respect to, or offer to settle, any claim with respect to
\nDissenting Shares without the written consent of Parent.<\/p>\n
(f) Associated Rights. References in this Agreement to Parent
\n Common Stock shall include, unless the context requires otherwise, the
\nassociated Preferred Share Purchase Rights issued pursuant to the Amended and
\nRestated Rights Agreement dated as of December 12, 2000 between Parent and
\nAmerican Stock Transfer and Trust Company, as Rights Agent (the “Rights Plan”).
\n ———–<\/p>\n
Section 2.2 Exchange of Certificates.
\n ————————<\/p>\n
(a) Exchange Agent. As of the Effective Time, Parent shall
\ndeposit, or shall cause to be deposited, with American Stock Transfer and Trust
\nCompany or another bank or trust company designated by Parent and reasonably
\nsatisfactory to the Company (the “Exchange Agent”), for the benefit of the
\n ————–
\nholders of shares of Company Common Stock, for exchange, in accordance with this
\nArticle 2, through the Exchange Agent, sufficient cash and certificates
\nrepresenting shares of Parent Common Stock to make all deliveries pursuant to
\nthis Article 2. Parent agrees to make available to the Exchange Agent, from time
\nto time as needed, cash sufficient to pay any dividends and other distributions
\npursuant to Section 2.2(c). The Exchange Agent shall, pursuant to irrevocable
\ninstructions, deliver the Merger Consideration contemplated to be paid for
\nshares of Company Common Stock pursuant to this Agreement out of the Exchange
\nFund. Except as contemplated by Sections 2.2(c) and 2.2(e) hereof, the Exchange
\nFund shall not be used for any other purpose. Any cash and certificates
\nrepresenting Parent Common Stock deposited with the Exchange Agent (including
\nthe proceeds from sales of Excess Shares in accordance with Section 2.2(e))
\nshall be referred to as the “Exchange Fund.”
\n ————-<\/p>\n
(b) Exchange Procedures. Promptly after the Effective Time,
\nParent shall instruct the Exchange Agent to mail to each holder of record of a
\ncertificate or certificates which immediately prior to the Effective Time
\nrepresented outstanding shares of Company Common Stock (the “Certificates”) (i)
\n ————
\na letter of transmittal (which shall specify that delivery shall be effected,
\nand risk of loss and title to the Certificates shall pass, only upon proper
\ndelivery of the Certificates to the Exchange Agent and shall be in customary
\nform) and (ii) instructions for use in effecting the surrender of the
\nCertificates in exchange for the Merger Consideration payable in respect of the
\nshares of Company Common Stock represented by such Certificates. Upon surrender
\nof a Certificate for cancellation to the Exchange Agent together with such
\nletter of transmittal, properly completed and duly executed, and such other
\ndocuments as may be required pursuant to such instructions, the holder of such
\nCertificate shall be entitled to receive in exchange therefor the Merger
\nConsideration payable in respect of the shares of Company Common Stock
\nrepresented by such Certificate, cash in lieu of fractional shares of Parent
\nCommon Stock to which such holder is entitled pursuant to Section 2.2(e) and any
\ndividends or other distributions to which such holder is entitled pursuant to
\nSection 2.2(c), and the Certificate so surrendered shall forthwith be canceled.
\nNo interest shall be paid or accrued on any Cash Consideration, cash in lieu of
\nfractional shares or on any unpaid dividends and distributions payable to
\nholders of Certificates. In the event of a transfer of ownership of shares of
\nCompany Common Stock which is not registered in the transfer records of the
\nCompany, the Merger Consideration payable in respect of such shares of Company
\nCommon Stock may be paid to a<\/p>\n
4<\/p>\n
transferee if the Certificate representing such shares of Company Common Stock
\nis presented to the Exchange Agent, accompanied by all documents required to
\nevidence and effect such transfer and by evidence that any applicable stock
\ntransfer Taxes have been paid. Until surrendered as contemplated by this Section
\n2.2, each Certificate shall be deemed at any time after the Effective Time to
\nrepresent only the right to receive upon such surrender the Merger Consideration
\npayable in respect of the shares of Company Common Stock represented by such
\nCertificate, cash in lieu of any fractional shares of Parent Common Stock to
\nwhich such holder is entitled pursuant to Section 2.2(e) and any dividends or
\nother distributions to which such holder is entitled pursuant to Section 2.2(c).<\/p>\n
(c) Distributions with Respect to Unexchanged Shares of Parent Common
\nStock. No dividends or other distributions declared or made with respect to
\nshares of Parent Common Stock, with a record date after the Effective Time,
\nshall be paid to the holder of any unsurrendered Certificate, and no cash
\npayment in lieu of fractional shares of Parent Common Stock shall be paid to any
\nsuch holder pursuant to Section 2.2(e), unless and until the holder of such
\nCertificate shall surrender such Certificate. Subject to the effect of escheat,
\nTax or other applicable Laws, following surrender of any such Certificate, there
\nshall be paid to such holder of the certificates representing whole shares of
\nParent Common Stock issuable in exchange therefor, without interest, (i)
\npromptly, the amount of any cash due pursuant to Section 2.1 and cash payable in
\nlieu of fractional shares of Parent Common Stock to which such holder is
\nentitled pursuant to Section 2.2(e) and the amount of dividends or other
\ndistributions with a record date at or after the Effective Time theretofore paid
\nwith respect to such whole shares of Parent Common Stock and (ii) at the
\nappropriate payment date, the amount of dividends or other distributions, with a
\nrecord date at or after the Effective Time but prior to such surrender and a
\npayment date subsequent to such surrender, payable with respect to such whole
\nshares of Parent Common Stock.<\/p>\n
(d) Further Rights in Company Common Stock. The Merger Consideration issued
\nupon conversion of a share of Company Common Stock in accordance with the terms
\nhereof (including any dividends or distributions pursuant to Section 2.2(c) or
\nSection 2.2(e)) shall be deemed to have been issued in full satisfaction of all
\nrights pertaining to such share of Company Common Stock.<\/p>\n
(e) Fractional Shares. No certificates or scrip representing fractional
\nshares of Parent Common Stock shall be issued upon the surrender for exchange of
\nCertificates, no dividend or distribution with respect to Parent Common Stock
\nshall be payable on or with respect to any fractional share and such fractional
\nshare interests shall not entitle the owner thereof to any rights of a
\nstockholder of Parent.<\/p>\n
(i) As promptly as practicable following the Effective Time, the
\nExchange Agent shall determine the closest number of whole shares of Parent
\nCommon Stock represented by the aggregate of the fractional share interests in
\nParent Common Stock to which all holders of Company Common Stock are entitled
\n(the “Excess Shares”). As soon after the Effective Time as practicable, the
\n ————-
\nExchange Agent, as agent for such holders of Parent Common Stock, shall sell
\nthe Excess Shares at then prevailing prices on Nasdaq, all in the manner
\nprovided in this Section 2.2(e).<\/p>\n
5<\/p>\n
(ii) The sale of the Excess Shares by the Exchange Agent shall be
\nexecuted on Nasdaq through one or more member firms of Nasdaq and shall be
\nexecuted in round lots to the extent practicable. Until the net proceeds of any
\nsuch sale or sales have been distributed to such holders of Company Common
\nStock, the Exchange Agent shall hold such proceeds in trust for such holders of
\nCompany Common Stock as part of the Exchange Fund. All commissions, transfer
\nTaxes and other out-of-pocket transaction costs of the Exchange Agent incurred
\nin connection with such sale or sales of Excess Shares shall be deducted from
\nthe Exchange Fund. In addition, the Exchange Agent’s compensation and expenses
\nin connection with such sale or sales shall be deducted from the Exchange Fund.
\nThe Exchange Agent shall determine the portion of such net proceeds to which
\neach holder of Company Common Stock shall be entitled, if any, by multiplying
\nthe amount of the aggregate net proceeds by a fraction the numerator of which is
\nthe amount of the fractional share interest to which such holder of Company
\nCommon Stock is entitled (after taking into account all shares of Parent Common
\nStock to be issued to such holder) and the denominator of which is the aggregate
\namount of fractional share interests to which all holders of Company Common
\nStock are entitled.<\/p>\n
(iii) As soon as practicable after the determination of the amount of
\ncash, if any, to be paid to holders of Company Common Stock with respect to any
\nfractional share interests, the Exchange Agent shall promptly pay such amounts
\nto such holders of Company Common Stock subject to and in accordance with the
\nterms of this Article 2.<\/p>\n
(f) Termination of Exchange Fund. Any portion of the Exchange Fund which
\nremains undistributed to the holders of Company Common Stock for one year after
\nthe Effective Time shall be delivered to Parent, upon demand, and, from and
\nafter such delivery to Parent, any holders of Company Common Stock who have not
\ntheretofore complied with this Article 2 shall thereafter look only to Parent
\nfor the Merger Consideration payable in respect of such shares of Company Common
\nStock, any cash in lieu of fractional shares of Parent Common Stock to which
\nthey are entitled pursuant to Section 2.2(e) and any dividends or other
\ndistributions with respect to Parent Common Stock to which they are entitled
\npursuant to Section 2.2(c), in each case, without any interest thereon.<\/p>\n
(g) No Liability. None of Parent, the Surviving Corporation or the Company
\nshall be liable to any holder of shares of Company Common Stock for any such
\nshares of Parent Common Stock (or dividends or distributions with respect
\nthereto) or cash from the Exchange Fund delivered to a public official pursuant
\nto any abandoned property, escheat or similar Law.<\/p>\n
(h) Lost Certificates. If any Certificate shall have been lost, stolen or
\ndestroyed, upon the making of an affidavit of that fact by the person claiming
\nsuch Certificate to be lost, stolen or destroyed and, if required by Parent, the
\nposting by such person of a bond, in such reasonable amount as Parent may
\ndirect, as indemnity against any claim that may be made against it with respect
\nto such Certificate, the Exchange Agent shall pay in exchange for such lost,
\nstolen or destroyed Certificate the Merger Consideration payable in respect of
\nthe shares of Company Common Stock represented by such Certificate, any cash in
\nlieu of fractional shares of Parent Common Stock to which the holders thereof
\nare entitled pursuant to Section 2.2(e) and any dividends or other distributions
\nto which the holders thereof are entitled pursuant to Section 2.2(c), in each
\ncase, without any interest thereon.<\/p>\n
6<\/p>\n
(i) Withholding. Parent or the Exchange Agent shall be entitled to deduct
\nand withhold from the consideration otherwise payable pursuant to this Agreement
\nto any holder of Company Common Stock such amounts as Parent or the Exchange
\nAgent are required to deduct and withhold under the Code, or any Tax Law, with
\nrespect to the making of such payment. To the extent that amounts are so
\nwithheld by Parent or the Exchange Agent, such withheld amounts shall be treated
\nfor all purposes of this Agreement as having been paid to the holder of Company
\nCommon Stock in respect of whom such deduction and withholding was made by
\nParent or the Exchange Agent.<\/p>\n
(j) Investment of Exchange Fund. The Exchange Agent shall invest any cash
\nincluded in the Exchange Fund, as directed by Parent, on a daily basis. Any
\ninterest and other income resulting from such investments shall be paid to
\nParent upon termination of the Exchange Fund pursuant to Section 2.2(f). In the
\nevent the cash in the Exchange Fund shall be insufficient to fully satisfy all
\nof the payment obligations to be made by the Exchange Agent hereunder, Parent
\nshall promptly deposit cash into the Exchange Fund in an amount which is equal
\nto the deficiency in the amount of cash required to fully satisfy such payment
\nobligations.<\/p>\n
Section 2.3 Stock Transfer Books. At the Effective Time, the stock transfer
\n ——————–
\nbooks of the Company shall be closed and thereafter, there shall be no further
\nregistration of transfers of shares of Company Common Stock theretofore
\noutstanding on the records of the Company. From and after the Effective Time,
\nthe holders of certificates representing shares of Company Common Stock
\noutstanding immediately prior to the Effective Time shall cease to have any
\nrights with respect to such shares of Company Common Stock except as otherwise
\nprovided herein or by Law. On or after the Effective Time, any Certificates
\npresented to the Exchange Agent or Parent for any reason shall be converted into
\nthe Merger Consideration payable in respect of the shares of Company Common
\nStock represented by such Certificates, any cash in lieu of fractional shares of
\nParent Common Stock to which the holders thereof are entitled pursuant to
\nSection 2.2(e) and any dividends or other distributions to which the holders
\nthereof are entitled pursuant to Section 2.2(c), without any interest thereon.<\/p>\n
Section 2.4 Stock Options.
\n ————-<\/p>\n
(a) At the Effective Time, each Company Option, other than Cancelled
\nCompany Options, then outstanding under any Company Stock Option Plan, whether
\nor not then exercisable, shall be converted into an option to purchase Parent
\nCommon Stock in accordance with this Section 2.4(a). Each Company Option so
\nconverted shall continue to have, and be subject to, the same terms and
\nconditions (including vesting schedule) as set forth in the applicable Company
\nStock Option Plan and any agreements thereunder immediately prior to the
\nEffective Time, except that, as of the Effective Time, (i) each Company Option
\nshall be exercisable (or shall become exercisable in accordance with its terms)
\nfor that number of whole shares of Parent Common Stock equal to the product of
\nthe number of shares that were issuable upon exercise of such Company Option
\nimmediately prior to the Effective Time multiplied by 0.52 (the “Option Exchange
\n —————
\nRatio”), rounded down to the nearest whole number of shares of Parent Common
\n—–
\nStock, (ii) the per share exercise price for the shares of Parent Common Stock
\nissuable upon exercise of such Company Option so converted shall be equal to the
\nquotient determined by dividing the exercise price per share of Company Common
\nStock at which such Company Option was exercisable immediately prior to the
\nEffective Time by the Option<\/p>\n
7<\/p>\n
Exchange Ratio, rounded up to the nearest whole cent, and (iii) each Company
\nOption which (a) is outstanding as of the date of this Agreement, (b) remains
\noutstanding at the Effective Time, and (c) constitutes an Accelerated Company
\nOption immediately prior to the Effective Time, shall be fully vested and
\nexercisable as to all shares of Parent Common Stock subject thereto.
\nNotwithstanding the foregoing, the conversion of any Company Options which are
\n“incentive stock options,” within the meaning of Section 422 of the Code, into
\noptions to purchase Parent Common Stock shall be made so as not to constitute a
\n“modification” of such Company Options within the meaning of Section 424 of the
\nCode.<\/p>\n
(b) At the Effective Time, each Cancelled Company Option then outstanding
\nunder any Company Stock Option Plan shall be cancelled, and in exchange
\ntherefor, shall be converted into an option (“Replacement Option”) to purchase
\n ——————
\nthat number of whole shares of Parent Common Stock equal to the product of the
\nnumber of shares subject to the related Cancelled Company Option multiplied by
\n0.4, rounded down to the nearest whole number of shares of Parent Common Stock,
\nwith an exercise price per share equal to the fair market value of a share of
\nParent Common Stock as of the date of grant of the Replacement Option (which
\nshall be as of the close of market on the date of the Effective Time)and
\notherwise subject to the terms and conditions (including the vesting schedule)
\nthat were applicable to the related Cancelled Company Option immediately prior
\nto the Effective Time, and neither the vesting nor exercisability of any
\nCancelled Company Option or Replacement Option shall be accelerated except as
\nprovided in the addendums to the Company Stock Option Plans.<\/p>\n
Section 2.5 Employee Stock Purchase Plan. At the Effective Time, each
\n —————————-
\noutstanding purchase right under the Immunex Corporation 1999 Employee Stock
\nPurchase Plan (the “ESPP”) shall be assumed by Parent in such manner that Parent
\n —-
\nis a corporation “issuing or assuming a stock option in a transaction to which
\nSection 424(a) applies” within the meaning of the Code, and shall be converted
\ninto a right to purchase Parent Common Stock in accordance with this Section
\n2.5. Each purchase right so assumed and converted by Parent under this Agreement
\nwill continue to have, and be subject to, the same terms and conditions set
\nforth in the ESPP and the documents governing the outstanding purchase rights
\nunder the ESPP, immediately prior to the Effective Time, except that the
\npurchase price of shares of Parent Common Stock and the number of shares of
\nParent Common Stock to be issued upon the exercise of such purchase rights shall
\nbe adjusted in accordance with the Option Exchange Ratio.<\/p>\n
Section 2.6 Employment Agreement. Simultaneously with the execution of
\n ——————–
\nthis Agreement, Parent has entered into an employment agreement with Edward V.
\nFritzky, which agreement shall become effective upon the Closing.<\/p>\n
Section 2.7 AHP Agreements. Simultaneously with the execution of this
\n ————–
\nAgreement, each of that certain Stockholders’ Rights Agreement by and among
\nParent, AHP, MDP Holdings, Inc. and Lederle Parenterals, Inc., that certain
\nAmended and Restated Promotion Agreement by and between Parent and AHP, and that
\ncertain Agreement Regarding Governance and Commercial Matters by and among
\nParent, AHP and American Cyanamid Company (collectively, the “AHP Agreements”)
\n ————–
\nhas been executed, which agreements shall become effective upon the Closing
\n(except that the Agreement Regarding Governance and Commercial Matters shall be
\neffective as of the date hereof).<\/p>\n
8<\/p>\n
Section 2.8 Role of Seattle and Rhode Island Following the Merger. Parent
\n —————————————————–
\nintends to, following the Effective Time, (i) operate and grow the Company’s
\nSeattle, Washington facility as a major research and development center for
\nParent, (ii) maintain Seattle, Washington as the primary location for the team
\nof employees responsible for Enbrel, (iii) complete the Company’s Helix Project
\nresearch and technology center in Seattle, Washington, in order to consolidate
\nParent’s Seattle downtown operations to one campus, and (iv) operate and grow
\nthe West Greenwich, Rhode Island biotechnology manufacturing complex as a
\nlarge-scale manufacturing complex for biological products.<\/p>\n
ARTICLE 3.
\n REPRESENTATIONS AND WARRANTIES OF THE COMPANY<\/p>\n
Except as set forth in the corresponding section of the Disclosure Letter
\ndelivered by the Company to Parent prior to the execution of this Agreement (the
\n“Company Disclosure Letter”) (and subject to Section 9.13 hereof), the Company
\n ————————-
\nhereby represents and warrants to Parent as follows:<\/p>\n
Section 3.1 Organization and Qualification; Subsidiaries. The Company is
\n ——————————————–
\na corporation duly organized and validly existing under the Laws of the State of
\nWashington and has paid all excise taxes required by the Washington Department
\nof Revenue. Each Subsidiary of the Company (collectively, the “Company
\n ——-
\nSubsidiaries”) has been duly organized and is validly existing under the Laws of
\n————
\nthe State of Washington and has paid all excise taxes required by the Washington
\nDepartment of Revenue, except where the failure to be so organized, existing or
\nto have paid taxes would not, individually or in the aggregate, reasonably be
\nexpected to have a Company Material Adverse Effect. Each of the Company and the
\nCompany Subsidiaries has the requisite power and authority and all necessary
\ngovernmental approvals to own, lease and operate its properties and to carry on
\nits business as it is now being conducted, except where the failure to have such
\npower, authority and governmental approvals would not, individually or in the
\naggregate, reasonably be expected to have a Company Material Adverse Effect.
\nEach of the Company and the Company Subsidiaries is duly qualified or licensed
\nto do business, and is in good standing (but only with respect to jurisdictions
\nwhich recognize such concepts) in each jurisdiction where the character of the
\nproperties owned, leased or operated by it or the nature of its business makes
\nsuch qualification or licensing or good standing necessary, except for such
\nfailures to be so qualified or licensed and in good standing that would not,
\nindividually or in the aggregate, reasonably be expected to have a Company
\nMaterial Adverse Effect. Section 3.1 of the Company Disclosure Letter sets forth
\na true and complete list of all of the Company Subsidiaries. Except with respect
\nto securities of non-affiliates held for investment purposes which do not
\nconstitute more than a 5% percent interest in any such non-affiliate, neither
\nthe Company nor any Company Subsidiary holds an Equity Interest in any other
\nperson.<\/p>\n
Section 3.2 Articles of Incorporation and Bylaws; Corporate Books and
\n ———————————————————
\nRecords. The copies of the Company’s Articles of Incorporation (the “Company
\n——- ——-
\nArticles”) and Bylaws (the “Company Bylaws”) that are listed as exhibits to the
\n——– ————–
\nCompany’s Form 10-K for the year ended December 31, 2000 are complete and
\ncorrect copies thereof as in effect on the date hereof. The Company is not in
\nviolation of any of the provisions of the Company Articles or the Company Bylaws
\nas of the date hereof and will not, as of the Closing Date, be in violation of
\nany of the provisions of the Company Articles or Company Bylaws, as such Company
\nArticles and<\/p>\n
9<\/p>\n
Company Bylaws may be amended between the date hereof and the Closing Date. True
\nand complete copies of all minute books of the Company since January 1, 1999
\nhave been made available by the Company to Parent.<\/p>\n
Section 3.3 Capitalization.
\n ————–<\/p>\n
(a) As of the date hereof, the authorized capital stock of the Company
\nconsists of 1,200,000,000 shares of Company Common Stock and 30,000,000 shares
\nof preferred stock, par value $0.01 per share (the “Company Preferred Stock”).
\n ———————–
\nAs of December 1, 2001, (i) 544,893,425 shares of Company Common Stock were
\nissued and outstanding, all of which were validly issued and fully paid,
\nnonassessable and, except pursuant to Sections 2.01 and 2.02 of the Governance
\nAgreement, free of preemptive rights, and (ii) 51,062,923 shares of Company
\nCommon Stock were issuable (and such number was reserved for issuance) upon
\nexercise of Company Options outstanding as of such date. As of the date hereof,
\nno shares of Company Preferred Stock are issued or outstanding.<\/p>\n
(b) Except for outstanding Company Options, outstanding purchase rights
\nunder the ESPP and pursuant to Sections 2.01 and 2.02 of the Governance
\nAgreement, as of the date hereof, there are no options, warrants or other
\nrights, agreements, arrangements or commitments of any character to which the
\nCompany or any Company Subsidiary is a party or by which the Company or any
\nCompany Subsidiary is bound relating to the issued or unissued capital stock or
\nother Equity Interests of the Company or any Company Subsidiary, or obligating
\nthe Company or any Company Subsidiary to issue or sell any shares of its capital
\nstock or other Equity Interests. From December 1, 2001 to the date of this
\nAgreement, the Company has not issued any Equity Interests with respect to
\nCompany Common Stock, other than (x) Parent Common Stock issued upon exercise of
\nCompany Stock Options and (y) stock options issued to newly-hired employees in
\nthe ordinary course of business consistent with past practice. The Company has
\npreviously provided Parent with a true and complete list, as of December 15,
\n2001, of the prices at which outstanding Company Options may be exercised under
\nthe applicable Company Stock Option Plan, the number of Company Options
\noutstanding at each such price and the vesting schedule of the Company Options.
\nAll shares of Company Common Stock subject to issuance under the Company Stock
\nOption Plans, upon issuance prior to the Effective Time on the terms and
\nconditions specified in the instruments pursuant to which they are issuable,
\nwill be duly authorized, validly issued, fully paid, nonassessable and, except
\npursuant to Sections 2.01 and 2.02 of the Governance Agreement, free of
\npreemptive rights.<\/p>\n
(c) Except as set forth in the Governance Agreement, there are no
\noutstanding contractual obligations of the Company or any Company Subsidiary (i)
\nrestricting the transfer of, (ii) affecting the voting rights of, (iii)
\nrequiring the repurchase, redemption or disposition of, or containing any right
\nof first refusal with respect to, (iv) requiring the registration for sale of,
\nor (v) granting any preemptive or antidilutive right with respect to, any
\nCompany Common Stock or any capital stock of, or other Equity Interests in, any
\nCompany Subsidiary. Each outstanding share of capital stock of each Company
\nSubsidiary is duly authorized, validly issued, fully paid, nonassessable and
\nfree of preemptive rights and is owned, beneficially and of record, by the
\nCompany or another Company Subsidiary free and clear of all security interests,
\nliens, claims, pledges, options, rights of first refusal, agreements,
\nlimitations on the Company’s or such other Company Subsidiary’s voting rights,
\ncharges and other encumbrances of any nature whatsoever.<\/p>\n
10<\/p>\n
There are no outstanding contractual obligations of the Company or any Company
\nSubsidiary to make any loan to, or any equity or other investment (in the form
\nof a capital contribution or otherwise) in, any Company Subsidiary or any other
\nperson, other than guarantees by the Company of any indebtedness or other
\nobligations of any wholly-owned Company Subsidiary and other than loans made in
\nthe ordinary course consistent with past practice to employees of the Company
\nand its Subsidiaries. The Company has not adopted a shareholder rights plan.<\/p>\n
Section 3.4 Authority.
\n ———<\/p>\n
(a) The Company has all necessary corporate power and authority to execute
\nand deliver this Agreement, to perform its obligations hereunder and to
\nconsummate the transactions contemplated by this Agreement. The execution and
\ndelivery of this Agreement by the Company and the consummation by the Company of
\nsuch transactions have been duly and validly authorized by all necessary
\ncorporate action and no other corporate proceedings on the part of the Company
\nand no shareholder votes are necessary to authorize this Agreement or to
\nconsummate such transactions other than, with respect to the Merger, as provided
\nin Section 3.21. The Board of Directors of the Company, by resolutions adopted
\nby vote of at least a majority of the Board of Directors of the Company at a
\nmeeting duly called and held at which a quorum was present and acting
\nthroughout, has duly (i) adopted this Agreement and the transactions
\ncontemplated hereby, which adoption has not been rescinded or modified, (ii)
\nresolved (subject to Section 6.4) to recommend this Agreement and the Merger to
\nits shareholders for approval and (iii) directed that this Agreement be
\nsubmitted to its shareholders for consideration in accordance with this
\nAgreement. All necessary approvals under the Governance Agreement have been
\nobtained with respect to the execution and performance by the Company of this
\nAgreement and the consummation of the Merger. No approval by the Company is
\nnecessary under the Governance Agreement for the execution and performance by
\nAHP, MDP Holdings, Inc. and Lederle Parenterals, Inc. of the Voting Agreement.
\nThe Company has waived its rights with respect to the Merger under Section
\n5.1(d) of the Governance Agreement. This Agreement has been duly and validly
\nexecuted and delivered by the Company and constitutes the legal, valid and
\nbinding obligation of the Company, enforceable against the Company in accordance
\nwith its terms.<\/p>\n
(b) A majority of the Board of Directors of the Company has approved this
\nAgreement and the Voting Agreement and the transactions contemplated hereby and
\nthereby for purposes of Chapter 23B.19 of the WBCA such that the restrictions
\nset forth in Section 23B.19.040 of the WBCA are not applicable to this Agreement
\nor the Voting Agreement or the consummation of the transactions contemplated
\nhereby and thereby, or to the Surviving Corporation or Parent and their
\nAffiliates or transferees following the Merger. No other State of Washington
\ntakeover statute or similar statute or regulation is applicable to the Merger.<\/p>\n
Section 3.5 No Conflict; Required Filings and Consents.
\n ——————————————<\/p>\n
(a) The execution and delivery of this Agreement by the Company do not, and
\nthe performance of this Agreement by the Company will not, (i) conflict with or
\nviolate any provision of the Company Articles, the Company Bylaws, any
\nequivalent organizational documents of any Company Subsidiary or the Governance
\nAgreement (assuming the Company Shareholder Approval is obtained), (ii) assuming
\nthat all consents, approvals, authorizations and<\/p>\n
11<\/p>\n
permits described in Section 3.5(b) have been obtained and all filings and
\nnotifications described in Section 3.5(b) have been made and any waiting periods
\nthereunder have terminated or expired, conflict with or violate any Law
\napplicable to the Company or any Company Subsidiary or by which any property or
\nasset of the Company or any Company Subsidiary is bound or affected or (iii)
\nrequire any consent or approval under, result in any breach of, any loss of any
\nbenefit under or constitute a change of control or default (or an event which
\nwith notice or lapse of time or both would become a default) under, or give to
\nothers any right of termination, vesting, amendment, acceleration or
\ncancellation of, or result in the creation of a lien or other encumbrance on any
\nproperty or asset of the Company or any Company Subsidiary pursuant to, any
\nContract, Company Permit or other instrument or obligation, except, with respect
\nto clauses (ii) and (iii), for any such conflicts, violations, breaches,
\ndefaults or other occurrences which would not, individually or in the aggregate,
\nreasonably be expected to (x) have a Company Material Adverse Effect or (y)
\nprevent or materially delay the performance under this Agreement by the Company.<\/p>\n
(b) The execution and delivery of this Agreement by the Company do not, and
\nthe performance of this Agreement by the Company will not, require any consent,
\napproval, authorization or permit of, or filing with or notification to, any
\ndomestic or foreign Governmental Entity or any other person, except (i) under
\nthe Exchange Act, the Securities Act, any applicable Blue Sky Law, the rules and
\nregulations of Nasdaq, the HSR Act, foreign or supranational antitrust and
\ncompetition Laws and the filing and recordation of the Articles of Merger as
\nrequired by the WBCA and (ii) where failure to obtain such consents, approvals,
\nauthorizations or permits, or to make such filings or notifications to a person
\nother than a Governmental Entity, would not, individually or in the aggregate,
\nreasonably be expected to (x) have a Company Material Adverse Effect or (y)
\nprevent or materially delay the performance of this Agreement by the Company.<\/p>\n
Section 3.6 Permits; Compliance With Law. Each of the Company and the
\n —————————-
\nCompany Subsidiaries is in possession of all authorizations, licenses, permits,
\ncertificates, approvals and clearances, and has submitted notices to, all
\nGovernmental Entities (including all authorizations under the Federal Food, Drug
\nand Cosmetic Act of 1938, as amended (the “FDCA”) and the regulations of the
\n —-
\nUnited States Food and Drug Administration (the “FDA”) promulgated thereunder)
\n —
\nnecessary for the Company or any Company Subsidiary to own, lease and operate
\nits properties or other assets and to carry on their respective businesses in
\nthe manner described in the Company SEC Filings filed prior to the date hereof
\nand as it is being conducted as of the date hereof (the “Company Permits”), and
\n —————
\nall such Company Permits are valid, and in full force and effect, except where
\nthe failure to have, or the suspension or cancellation of, or failure to be
\nvalid or in full force and effect of, any of the Company Permits would not,
\nindividually or in the aggregate, reasonably be expected to have a Company
\nMaterial Adverse Effect. Neither the Company nor any Company Subsidiary is in
\nconflict with, or in default or violation of, (i) any Law applicable to the
\nCompany or any Company Subsidiary or by which any property or asset of the
\nCompany or any Company Subsidiary is bound or affected or (ii) any Company
\nPermits, except, with respect to clauses (i) and (ii), for any such conflicts,
\ndefaults or violations that would not, individually or in the aggregate,
\nreasonably be expected to have a Company Material Adverse Effect.<\/p>\n
12<\/p>\n
Section 3.7 SEC Filings; Financial Statements.
\n ———————————<\/p>\n
(a) The Company has timely filed all registration statements, prospectuses,
\nforms, reports, definitive proxy statements, schedules and documents required to
\nbe filed by it under the Securities Act or the Exchange Act, as the case may be,
\nsince January 1, 1998 (collectively, the “Company SEC Filings”). Each Company
\n ——————-
\nSEC Filing (i) as of its date, complied in all material respects with the
\nrequirements of the Securities Act or the Exchange Act, as the case may be, and
\n(ii) did not, at the time it was filed, contain any untrue statement of a
\nmaterial fact or omit to state a material fact required to be stated therein or
\nnecessary in order to make the statements made therein, in the light of the
\ncircumstances under which they were made, not misleading. As of the date of this
\nAgreement, no Company Subsidiary is subject to the periodic reporting
\nrequirements of the Exchange Act.<\/p>\n
(b) Each of the consolidated financial statements (including, in each
\ncase, any notes thereto) contained in the Company SEC Filings was prepared in
\nall material respects in accordance with GAAP applied (except as may be
\nindicated in the notes thereto and, in the case of unaudited quarterly financial
\nstatements, as permitted by Form 10-Q under the Exchange Act) on a consistent
\nbasis throughout the periods indicated (except as may be indicated in the notes
\nthereto), and each presented fairly the consolidated financial position, results
\nof operations and cash flows of the Company and the consolidated Company
\nSubsidiaries as of the respective dates thereof and for the respective periods
\nindicated therein (subject, in the case of unaudited statements, to normal and
\nrecurring year-end adjustments which did not and would not, individually or in
\nthe aggregate, reasonably be expected to have a Company Material Adverse
\nEffect). The books and records of the Company and the Company Subsidiaries have
\nbeen, and are being, maintained in all material respects in accordance with GAAP
\nand any other applicable legal and accounting requirements.<\/p>\n
(c) Except as and to the extent set forth on the consolidated balance sheet
\nof the Company and the consolidated Company Subsidiaries as of December 31, 2000
\nincluded in the Company’s Form 10-K for the year ended December 31, 2000,
\nincluding the notes thereto (the “Company Form 10-K”), neither the Company nor
\n —————–
\nany consolidated Company Subsidiary has any liabilities or obligations of any
\nnature (whether accrued, absolute, contingent or otherwise) that would be
\nrequired to be reflected on a balance sheet or in notes thereto prepared in
\naccordance with GAAP, except for (i) liabilities or obligations incurred in the
\nordinary course of business consistent with past practice since December 31,
\n2000 and (ii) liabilities and obligations incurred in connection with this
\nAgreement and the transactions contemplated hereby that would not, individually
\nor in the aggregate, reasonably be expected to have a Company Material Adverse
\nEffect.<\/p>\n
(d) As of the date hereof, no “material contract” (as such term is defined
\nin Item 601(b)(10) of Regulation S-K of the SEC) filed as an exhibit to the
\nCompany Form 10-K has been amended or modified, except for such amendments or
\nmodifications which have been filed as an exhibit to a subsequently dated
\nCompany SEC Filing or are not required to be filed with the SEC.<\/p>\n
Section 3.8 Absence of Certain Changes or Events. Since December 31,
\n ————————————
\n2000, except as disclosed in the Company Form 10-K or in Company SEC Filings
\nsince December 31,<\/p>\n
13<\/p>\n
2000 through to the date of this Agreement, including the notes thereto, and
\nexcept as specifically contemplated by, or as disclosed in, this Agreement, the
\nCompany and the Company Subsidiaries have conducted their businesses in the
\nordinary course consistent with past practice and, since such date, there has
\nnot been (a) an event or development that would, individually or in the
\naggregate, reasonably be expected to have a Company Material Adverse Effect or
\n(b) any event or development that would, individually or in the aggregate,
\nreasonably be expected to prevent or materially delay the performance of this
\nAgreement by the Company.<\/p>\n
Section 3.9 Employee Benefit Plans.
\n ———————-<\/p>\n
(a) Section 3.9(a) of the Company Disclosure Letter sets forth a true and
\ncomplete list of each “employee benefit plan” as defined in Section 3(3) of
\nERISA and any other material plan, policy, program, practice, agreement,
\nunderstanding or arrangement providing compensation or other benefits to any
\ncurrent or former director, officer, employee or consultant (or to any dependent
\nor beneficiary thereof) of the Company or any ERISA Affiliate, which are now, or
\nwith respect to any plan intended to be qualified under 401(a) of the Code, were
\nwithin the past 6 years, maintained, sponsored or contributed to by the Company
\nor any ERISA Affiliate, or under which the Company or any ERISA Affiliate has
\nany obligation or liability, whether actual or contingent, including, without
\nlimitation, all material incentive, bonus, deferred compensation, vacation,
\nholiday, cafeteria, medical, disability, stock purchase, stock option, stock
\nappreciation, phantom stock, restricted stock or other stock-based compensation
\nplans, policies, programs, practices or arrangements. Each “employee benefit
\nplan” as defined in Section 3(3) of ERISA and each other material plan, policy,
\nprogram, practice, agreement, understanding or arrangement providing
\ncompensation or other benefits to any current or former director, officer,
\nemployee or consultant (or to any dependent or beneficiary thereof) of the
\nCompany or any ERISA Affiliate, which are now, or were within the past 6 years,
\nmaintained, sponsored or contributed to by the Company or any ERISA Affiliate,
\nor under which the Company or any ERISA Affiliate has any obligation or
\nliability, whether actual or contingent, including, without limitation, all
\nmaterial incentive, bonus, deferred compensation, vacation, holiday, cafeteria,
\nmedical, disability, stock purchase, stock option, stock appreciation, phantom
\nstock, restricted stock or other stock-based compensation plans, policies,
\nprograms, practices or arrangements is hereinafter referred to as a “Company
\n ——-
\nBenefit Plan”. Neither the Company, nor to the Knowledge of the Company, any
\n————
\nother person, has any express or implied commitment, whether legally enforceable
\nor not, to modify, change or terminate any Company Benefit Plan, other than with
\nrespect to a modification, change or termination required by ERISA or the Code.
\nThe Company has delivered or made available to Parent true, correct and complete
\ncopies of all Company Benefit Plans (or, if not so delivered, has delivered or
\nmade available to Parent a written summary of their material terms), and, with
\nrespect thereto, all amendments, trust agreements, insurance Contracts, other
\nfunding vehicles, determination letters issued by the United States Internal
\nRevenue Service (the “IRS”), the most recent annual reports (Form 5500 series)
\n —
\nfiled with the IRS, and the most recent actuarial report or other financial
\nstatement relating to such Company Benefit Plan.<\/p>\n
(b) Each Company Benefit Plan has been administered in all material respects in
\naccordance with its terms and all applicable Laws, including ERISA and the Code,
\nand contributions required to be made under the terms of any of the Company
\nBenefit Plans as of the date of this Agreement have been timely made. Except as
\nwould not, individually or in the<\/p>\n
14<\/p>\n
aggregate, reasonably be expected to have a Company Material Adverse Effect, (i)
\nwith respect to the Company Benefit Plans, no event has occurred and, to the
\nKnowledge of the Company, there exists no condition or set of circumstances in
\nconnection with which the Company could be subject to any material liability
\n(other than for routine benefit liabilities) under the terms of, or with respect
\nto, such Company Benefit Plans, ERISA, the Code or any other applicable Law, and
\n(ii) neither the Company nor any ERISA Affiliate has any liability under ERISA
\nSection 502.<\/p>\n
(c) Each Company Benefit Plan that is intended to be qualified under
\nSection 401(a) of the Code has obtained a favorable determination letter from
\nthe IRS that the Company Benefit Plan is so qualified and all related trusts are
\nexempt from U.S. federal income taxation under Section 501(a) of the Code, and,
\nto the Knowledge of the Company, nothing has occurred, whether by action or by
\nfailure to act, which would cause the loss of such qualification or exemption.
\nExcept as would not reasonably be expected to result in material liability to
\nthe Company or a Company ERISA Affiliate, (i) to the knowledge of the Company
\nthere has been no prohibited transaction (within the meaning of Section 406 of
\nERISA or Section 4975 of the Code and other than a transaction that is exempt
\nunder a statutory or administrative exemption) with respect to any Company
\nBenefit Plan, (ii) no suit, administrative proceeding, action or other
\nlitigation has been brought, or to the Knowledge of the Company is threatened,
\nagainst or with respect to any such Company Benefit Plan, including any audit or
\ninquiry by the IRS or United States Department of Labor (other than routine
\nbenefits claims), (iii) none of the assets of the Company or any Company ERISA
\nAffiliate is, or may reasonably be expected to become, the subject of any lien
\narising under ERISA or Section 412(n) of the Code, (iv) all Tax, annual
\nreporting and other governmental filings required by ERISA and the Code have
\nbeen timely filed with the appropriate Governmental Entity and all notices and
\ndisclosures have been timely provided to participants, (v) all contributions and
\npayments to each Company Benefit Plan are deductible under Code Sections 162 or
\n404, and (vi) no excise Tax could be imposed upon the Company under Chapter 43
\nof the Code.<\/p>\n
(d) Neither the Company nor any of its ERISA Affiliates sponsors,
\nmaintains, contributes to or has an obligation to contribute to, or has
\nsponsored, maintained, contributed to or had an obligation to contribute to, any
\n“employee pension benefit plan” (as defined in Section 3(2) of ERISA) that is
\nsubject to Title IV of ERISA or Section 412 of the Code, or any “multiemployer
\nplan” as defined in Section 3(37) of ERISA.<\/p>\n
(e) No amount that could be received (whether in cash or property or the
\nvesting of property), in connection with the consummation of the transactions
\ncontemplated by this Agreement, by any employee, officer or director of the
\nCompany or any of its Subsidiaries who is a “disqualified individual” (as such
\nterm is defined in proposed Treasury Regulation Section 1.280G-1) under any
\nCompany Benefit Plan or otherwise are reasonably likely to be characterized as
\nan “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).<\/p>\n
(f) Except as required by Law, no Company Benefit Plan provides any of the
\nfollowing retiree or post-employment benefits to any person: medical, disability
\nor life insurance benefits. The Company and each ERISA Affiliate are in
\ncompliance with (i) the requirements of the applicable health care continuation
\nand notice provisions of the Consolidated Omnibus Budget Reconciliation Act of
\n1985, as amended, and the regulations (including proposed regulations)
\nthereunder and any similar state Law and (ii) the applicable requirements of the<\/p>\n
15<\/p>\n
Health Insurance Portability and Accountability Act of 1996, as amended, and the
\nregulations (including the proposed regulations) thereunder, except as would not
\nbe reasonably expected to result in material liability to the Company or a
\nCompany ERISA Affiliate.<\/p>\n
(g) Neither the Company nor any of its Subsidiaries, sponsors, contributes
\nto or has any liability with respect to any employee benefit plan, program or
\narrangement that provides benefits to non-resident aliens with no United States
\nsource income outside of the United States.<\/p>\n
(h) The Company has delivered to Parent accurate W-2 information for the
\nexecutive officers of the Company for the 1997, 1998, 1999 and 2000 calendar
\nyears.<\/p>\n
Section 3.10 Labor and Other Employment Matters.
\n ———————————-<\/p>\n
(a) Except as would not, individually or in the aggregate, reasonably be
\nexpected to have a Company Material Adverse Effect, (i) no work stoppage or
\nlabor strike against the Company or any Company Subsidiary by employees is
\npending or threatened, (ii) neither the Company nor any Company Subsidiary is
\ndelinquent in payments to any of its employees for any wages, salaries,
\ncommissions, bonuses or other direct compensation for any services performed for
\nit or amounts required to be reimbursed to such employees, (iii) the Company and
\neach of the Company Subsidiaries are in compliance with all applicable Laws
\nrespecting labor, employment, fair employment practices, terms and conditions of
\nemployment, workers” compensation, occupational safety, plant closings, and wage
\nand hours, (iv) the Company and each Company Subsidiary has withheld all amounts
\nrequired by Law or by agreement to be withheld from the wages, salaries, and
\nother payments to employees; and is not liable for any arrears of wages or any
\nTaxes or any penalty for failure to comply with any of the foregoing, (v)
\nneither the Company nor any Company Subsidiary is liable for any payment to any
\ntrust or other fund or to any Governmental Entity, with respect to unemployment
\ncompensation benefits, social security or other benefits or obligations for
\nemployees (other than routine payments to be made in the ordinary course of
\nbusiness consistent with past practice), (vi) there are no material pending
\nclaims against the Company or any Company Subsidiary under any workers’
\ncompensation plan or policy or for long term disability and (vii) there are no
\nmaterial controversies pending or, to the Knowledge of the Company, threatened,
\nbetween the Company or any Company Subsidiary and any of their respective
\ncurrent or former employees, which controversies have or could reasonably be
\nexpected to result in an action, suit, proceeding, claim, arbitration or
\ninvestigation before any Governmental Entity. To the Company’s Knowledge, as of
\nthe date hereof, no employees of the Company or any Company Subsidiary are in
\nany material respect in violation of any term of any employment Contract,
\nnon-disclosure agreement, noncompetition agreement, or any restrictive covenant
\nto a former employer relating to the right of any such employee to be employed
\nby the Company or any Company Subsidiary because of the nature of the business
\nconducted or presently proposed to be conducted by the Company or such Company
\nSubsidiary or to the use of trade secrets or proprietary information of others.
\nAs of the date hereof, no employee of the Company or any Company Subsidiary, at
\nthe officer level or above, has given notice to the Company or any Company
\nSubsidiary that any such employee intends to terminate his or her employment
\nwith the Company or any Company Subsidiary.<\/p>\n
16<\/p>\n
(b) Neither the Company nor any Company Subsidiary is a party to or
\notherwise bound by any collective bargaining Contract with a labor union or
\nlabor organization, nor is any such Contract presently being negotiated. As of
\nthe date hereof, there has not been since January 1, 1998 a representation
\nquestion respecting any of the employees of the Company or any Company
\nSubsidiary and, to the Knowledge of the Company, there are no campaigns being
\nconducted to solicit cards from employees of the Company or any Company
\nSubsidiary to authorize representation by any labor organization.<\/p>\n
(c) The Company has identified in Section 3.10(c) of the Company Disclosure
\nLetter and has made available to Parent true and complete copies of (i) all
\nseverance and employment agreements with directors, officers or employees of or
\nconsultants to the Company or any Company Subsidiary, (ii) all severance
\nprograms and policies of each of the Company and each Company Subsidiary with or
\nrelating to its employees, and (iii) all plans, programs, agreements and other
\narrangements of each of the Company and each Company Subsidiary with or relating
\nto its directors, officers, employees or consultants which contain change in
\ncontrol provisions. Neither the execution and delivery of this Agreement or
\nother related agreements, nor the consummation of the transactions contemplated
\nhereby or thereby will (either alone or in conjunction with any other event,
\nsuch as termination of employment) (i) result in any payment (including, without
\nlimitation, severance, unemployment compensation, parachute or otherwise)
\nbecoming due to any director or any employee of the Company or any Company
\nSubsidiary or Affiliate from the Company or any Company Subsidiary or Affiliate
\nunder any Company Benefit Plan or otherwise, (ii) significantly increase any
\nbenefits otherwise payable under any Company Benefit Plan or (iii) result in any
\nacceleration of the time of payment or vesting of any benefits.<\/p>\n
Section 3.11 Tax Treatment. None of the Company, any Company Subsidiary
\n ————-
\nnor any of the Company’s Affiliates has taken or agreed to take any action that
\nwould prevent the Merger from qualifying as a reorganization within the meaning
\nof Section 368(a) of the Code. The Company is not aware of any agreement, plan
\nor other circumstance that would prevent the Merger from qualifying as a
\nreorganization within the meaning of Section 368(a) of the Code.<\/p>\n
Section 3.12 Contracts. Except as filed as exhibits to the Company SEC
\n ———
\nFilings filed prior to the date of this Agreement, or as disclosed in Section
\n3.12 of the Company Disclosure Letter, neither the Company nor any Company
\nSubsidiary is a party to or bound by any Contract that (i) is a “material
\ncontract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the
\nSEC), (ii) relates to the co-promotion or distribution of Enbrel, the
\nmanufacturing and supply by third parties of Enbrel, the out-license of Company
\nIntellectual Property relating to Enbrel to third parties pursuant to which the
\nCompany currently receives royalties, or the in-license of intellectual property
\nrelating to Enbrel from third parties pursuant to which the Company currently
\npays royalties or (iii) limits or otherwise restricts the Company or any Company
\nSubsidiary or that would, after the Effective Time, limit or restrict Parent or
\nany of its Subsidiaries (including the Surviving Corporation and its
\nSubsidiaries) or any successor thereto, from engaging or competing in any line
\nof business or in any geographic area, which Contracts would be material to
\nParent and its Subsidiaries (determined after giving effect to the Merger). Each
\nContract of the type described in this Section 3.12, whether or not set forth in
\nSection 3.12 of the Company Disclosure Letter, is referred to herein as a
\n“Company Material Contract.” Each Company Material Contract is valid and binding
\n ————————-
\non the Company or a<\/p>\n
17<\/p>\n
Company Subsidiary party thereto and, to the Company’s Knowledge, each other
\nparty thereto, and is in full force and effect, and the Company and each of the
\nCompany Subsidiaries have performed in all material respects all obligations
\nrequired to be performed by them to the date hereof under each Company Material
\nContract and, to the Company’s Knowledge, each other party to each Company
\nMaterial Contract has performed in all material respects all obligations
\nrequired to be performed by it under such Company Material Contract, except, in
\neach case, as would not, individually or in the aggregate, reasonably be
\nexpected to have a Company Material Adverse Effect. Neither the Company nor any
\nCompany Subsidiary knows of, or has received notice of, any violation or default
\nunder (or any condition which with the passage of time or the giving of notice
\nwould cause such a violation of or default under) any Company Material Contract
\nor any other Contract to which it is a party or by which it or any of its
\nproperties or assets is bound, except for violations or defaults that would not,
\nindividually or in the aggregate, reasonably be expected to have a Company
\nMaterial Adverse Effect.<\/p>\n
Section 3.13 Litigation. Except as and to the extent disclosed in the
\n ———-
\nCompany SEC Filings, including the notes thereto, filed prior to the date of
\nthis Agreement or would not, individually or in the aggregate, reasonably be
\nexpected to have a Company Material Adverse Effect, (i) there is no suit, claim,
\naction, proceeding or investigation pending or, to the Knowledge of the Company,
\nthreatened in writing against the Company or any Company Subsidiary or for which
\nthe Company or any Company Subsidiary is obligated to indemnify a third party
\nthat, as of the date hereof, relates to Enbrel, and (ii) neither the Company nor
\nany Company Subsidiary is subject to any outstanding and unsatisfied order,
\nwrit, injunction, decree or arbitration ruling, award or other finding. There is
\nno suit, claim, action, proceeding or investigation pending or, to the Knowledge
\nof the Company, threatened in writing against the Company or any Company
\nSubsidiary that, as of the date hereof, challenges the validity or propriety, or
\nseeks to prevent consummation of, the Merger or any other transaction
\ncontemplated by this Agreement.<\/p>\n
Section 3.14 Environmental Matters. Except as disclosed in the Company
\n ———————
\nForm 10-K or in Company SEC Filings, including the notes thereto, since December
\n31, 2000 through to the date of this Agreement or would not, individually or in
\nthe aggregate, reasonably be expected to have a Company Material Adverse Effect:<\/p>\n
(a) The Company and the Company Subsidiaries (i) are in compliance with
\nall, and are not subject to any liability, in each case with respect to any,
\napplicable Environmental Laws, (ii) hold or have applied for all Environmental
\nPermits necessary to conduct their current operations and (iii) are in
\ncompliance with their respective Environmental Permits.<\/p>\n
(b) Neither the Company nor any Company Subsidiary has received any written
\nnotice, demand, letter, claim or request for information alleging that the
\nCompany or any Company Subsidiary may be in violation of, or liable under, any
\nEnvironmental Law.<\/p>\n
(c) Neither the Company nor any Company Subsidiary (i) has entered into or
\nagreed to any consent decree or order or is subject to any judgment, decree or
\njudicial order relating to compliance with Environmental Laws, Environmental
\nPermits or the investigation, sampling, monitoring, treatment, remediation,
\nremoval or cleanup of Hazardous Materials and, to<\/p>\n
18<\/p>\n
the Knowledge of the Company, no investigation, litigation or other proceeding
\nis pending or threatened in writing with respect thereto or (ii) is an
\nindemnitor in connection with any claim threatened or asserted in writing by any
\nthird-party indemnitee for any liability under any Environmental Law or relating
\nto any Hazardous Materials.<\/p>\n
(d) None of the real property owned or leased by the Company or any Company
\nSubsidiary is listed or, to the Knowledge of the Company, proposed for listing
\non the “National Priorities List” under CERCLA, as updated through the date
\nhereof, or any similar state or foreign list of sites requiring investigation or
\ncleanup.<\/p>\n
Section 3.15 Intellectual Property. Except as would not, individually or
\n ———————
\nin the aggregate, reasonably be expected to have a Company Material Adverse
\nEffect, (i) the Company (or one of its Subsidiaries) owns or has the right to
\nuse, whether through ownership, licensing or otherwise, all Company Intellectual
\nProperty, (ii) no written claim of invalidity or conflicting ownership rights
\nwith respect to any Company Intellectual Property has been received by the
\nCompany or any Company Subsidiary from a third party, (iii) no Company
\nIntellectual Property owned by the Company or any Company Subsidiary is the
\nsubject of any pending or, to the Company’s Knowledge, threatened action, suit,
\nclaim, investigation, arbitration, validity or enforceability challenge or other
\nproceeding, (iv) to the Company’s Knowledge, no Company Intellectual Property
\nthat is not owned by the Company or any Company Subsidiary is the subject of any
\npending or threatened action, suit, claim, investigation, arbitration, validity
\nor enforceability challenge or other proceeding, (v) no person has given written
\nnotice to the Company or any Company Subsidiary that the use of any Company
\nIntellectual Property by the Company, any Company Subsidiary or any licensee is
\ninfringing or has infringed any patent, trademark, service mark, trade name, or
\ncopyright or design right or other intellectual property right of any third
\nparty, or that the Company, any Company Subsidiary or any licensee has
\nmisappropriated or improperly used or disclosed any trade secret, confidential
\ninformation or know-how, (vi) to the Company’s knowledge after due inquiry, the
\nmaking, having made, using, selling, offering for sale, importing, exporting,
\nmanufacturing, marketing, licensing, reproduction, distribution or publishing by
\nthe Company of any process, machine, manufacture or product does not, because of
\nand to the extent that such process, manufacture or product incorporates Company
\nIntellectual Property, infringe any valid claim of any patent, trademark,
\nservice mark, trade name, copyright, design right, or other intellectual
\nproperty right of any third party in the jurisdictions in which such making,
\nusing, selling, offering for sale, importing, exporting, manufacturing,
\nmarketing, licensing, reproduction, distribution, or publishing occurs, and does
\nnot involve the misappropriation or improper use or disclosure of any trade
\nsecrets, confidential information or know-how of any third party, and (vii)
\nthere exists no prior act or current conduct or use by the Company, any Company
\nSubsidiary or, to the Knowledge of the Company, any third party that would void
\nor invalidate any Company Intellectual Property. As of the date hereof, AHP has
\nnot made any Product Calls (as such term is defined in the Product Rights
\nAgreement by and among the Wyeth-Ayerst Research division of AHP, the Lederle
\nPharmaceutical division of American Cyanamid Company and the Company dated as of
\nJuly 1, 1998, as amended (the “Product Rights Agreement”)) under the Product
\n ————————
\nRights Agreement.<\/p>\n
19<\/p>\n
Section 3.16 Taxes.
\n —–<\/p>\n
(a) Each of the Company and each Company Subsidiary has duly and timely
\nfiled with the appropriate Tax authorities or other Governmental Entities all
\nmaterial Tax Returns that it was required to file. All such Tax Returns are
\ncomplete and accurate in all material respects. All Taxes shown as due on such
\nTax Returns have been paid, and the Company and the Company Subsidiaries have
\nprovided adequate reserves in accordance with GAAP in the most recent financial
\nstatements contained in the Company SEC Filings for any material Taxes that have
\nnot been paid, whether or not shown as being due on any Tax Returns. None of the
\nCompany nor any Company Subsidiary currently is the beneficiary of any extension
\nof time within which to file any material Tax Return.<\/p>\n
(b) No claim for unpaid material Taxes has been asserted in writing by a
\nTax authority or other Governmental Entity or has become a lien against the
\nproperty of the Company or any Company Subsidiary (other than with respect to
\nPermitted Liens for Taxes). No audit or other proceeding with respect to any
\nmaterial Taxes due from or with respect to the Company or any Company Subsidiary
\nor any material Tax Return filed by the Company or any Company Subsidiary is
\nbeing conducted by any Tax authority or Governmental Entity, and the Company and
\nthe Company Subsidiaries have not received notification in writing that any such
\naudit or other proceeding with respect to material Taxes or any material Tax
\nReturn is pending. No extension of the statute of limitations on the assessment
\nof any material Taxes has been granted by the Company or any Company Subsidiary.<\/p>\n
(c) All material Taxes required to be withheld, collected or deposited by
\nor with respect to the Company and each Company Subsidiary have been timely
\nwithheld, collected or deposited as the case may be, and to the extent required,
\nhave been paid to the relevant Tax authority or other Governmental Entity.<\/p>\n
(d) Neither the Company nor any Company Subsidiary is responsible for the
\nTaxes of any person other than members of the affiliated group of which the
\nCompany is the common parent under Treasury Regulation Section 1.1502-6 (or any
\nsimilar provision of state, local, or foreign Law), as a transferee, by
\nContract, or otherwise. Neither the Company nor any Company Subsidiary is a
\nparty to, is bound by or has any obligation under any Tax sharing or Tax
\nindemnity agreement or similar Contract or arrangement.<\/p>\n
(e) Neither the Company nor any Company Subsidiary has been a party to any
\ndistribution occurring during the two years preceding the date of this Agreement
\nin which the parties to such distribution treated the distribution as one to
\nwhich Section 355 of the Code is applicable.<\/p>\n
Section 3.17 Insurance. Copies of all material insurance policies
\n ———
\nmaintained by the Company, including fire and casualty, general liability,
\nproduct liability, business interruption and professional liability policies,
\nhave been made available to Parent.<\/p>\n
Section 3.18 Properties. Each of the Company and the Company Subsidiaries
\n ———-
\nhas good and valid title to or a valid leasehold interest in all its properties
\nand assets reflected on the most recent balance sheet contained in the Company’s
\nquarterly report on Form 10-Q that is<\/p>\n
20<\/p>\n
part of the Company SEC Filings or acquired after the date thereof, except for
\n(i) properties and assets sold or otherwise disposed of in the ordinary course
\nof business since the date of such balance sheet and (ii) properties and assets
\nthe loss of which would not, individually or in the aggregate, reasonably be
\nexpected to have a Company Material Adverse Effect.<\/p>\n
Section 3.19 Regulatory Compliance.
\n ———————<\/p>\n
(a) All biological and drug products being manufactured, distributed, or
\ndeveloped by the Company and its Subsidiaries (“Company Pharmaceutical
\n ———————–
\nProducts”) that are subject to the jurisdiction of the FDA are being
\n———
\nmanufactured, labeled, stored, tested, distributed, and marketed in compliance
\nwith all applicable requirements under the FDCA, the Public Health Service Act,
\nand their applicable implementing regulations, except for noncompliances which
\nwould not, individually or in the aggregate, reasonably be expected to have a
\nCompany Material Adverse Effect.<\/p>\n
(b) All preclinical trials and clinical trials conducted by or on behalf of
\nthe Company and its Subsidiaries have been, and are being conducted in material
\ncompliance with the applicable requirements of Good Clinical Practice, Informed
\nConsent, and all applicable requirements relating to protection of human
\nsubjects contained in 21 C.F.R. Parts 50, 54, and 56, except for noncompliances
\nwhich, individually or in the aggregate, would reasonably not be expected to
\nhave a Company Material Adverse Effect.<\/p>\n
(c) All manufacturing operations conducted by or for the benefit of the
\nCompany and its Subsidiaries have been and are being conducted in compliance
\nwith the FDA’s applicable current Good Manufacturing Practice regulations for
\ndrug and biological products, except for noncompliances which, individually or
\nin the aggregate, would not reasonably be expected to have a Company Material
\nAdverse Effect. In addition, the Company and its Subsidiaries are in compliance
\nwith all applicable registration and listing requirements set forth in 21 U.S.C.
\nSection 360 and 21 C.F.R. Part 207 and all similar applicable laws, except for
\nnoncompliances which, individually or in the aggregate, would not reasonably be
\nexpected to have a Company Material Adverse Effect.<\/p>\n
(d) No Company Pharmaceutical Product has been recalled, suspended or
\ndiscontinued as a result of any action by the FDA or any other similar foreign
\nGovernmental Entity by the Company or any of its Subsidiaries or, to the
\nKnowledge of the Company, any licensee, distributor or marketer of any Company
\nPharmaceutical Product, in the United States or outside of the United States
\nsince January 1, 1999.<\/p>\n
(e) Neither the Company nor any of its Subsidiaries have received any
\nnotice since January 1, 1999 that the FDA or any other Governmental Entity has
\ncommenced, or threatened to initiate, any action to withdraw approval, place
\nmarketing or sale restrictions, or request the recall of any Company
\nPharmaceutical Product, or commenced, or threatened to initiate, any action to
\nenjoin or place restrictions on the production, sale, marketing or reimbursement
\nof any Company Pharmaceutical Products.<\/p>\n
(f) Neither the Company, nor any of its Subsidiaries, have committed any
\nact, made any statement or failed to make any statement that would reasonably be
\nexpected to<\/p>\n
21<\/p>\n
provide a basis for the FDA to invoke its policy with respect to “Fraud, Untrue
\nStatements of Material Facts, Bribery, and Illegal Gratuities” set forth in 56
\nFed. Reg. 46191 (September 10, 1991) and any amendments thereto. Additionally,
\nneither the Company, the Company Subsidiaries, nor to the Knowledge of the
\nCompany, any officer, key employee or agent of the Company has been convicted of
\nany crime or engaged in any conduct that would reasonably be expected to result
\nin (i) debarment under 21 U.S.C. Section 335a or any similar state law or
\nregulation or (ii) exclusion under 42 U.S.C. Section 1320a-7 or any similar
\nstate law or regulation.<\/p>\n
Section 3.20 Opinion of Financial Advisor. Merrill Lynch & Co. (the
\n —————————-
\n“Company Financial Advisor”) has delivered to the Board of Directors of the
\n—————————
\nCompany its opinion that, as of the date of such opinion, the Merger
\nConsideration to be received by the holders of the shares of Company Common
\nStock pursuant to the Merger is fair to such holders from a financial point of
\nview.<\/p>\n
Section 3.21 Vote Required. The affirmative vote of the holders of a
\n ————-
\nmajority of the outstanding shares of Company Common Stock is the only vote of
\nthe holders of any class or series of capital stock or other Equity Interests of
\nthe Company necessary to approve this Agreement, the Merger and the transactions
\ncontemplated hereby (the “Company Shareholder Approval”).
\n ——————————
\n Section 3.22 Brokers. No broker, finder or investment banker (other than
\n ——-
\nthe Company Financial Advisor) is entitled to any brokerage, finder’s or other
\nfee or commission in connection with the Merger based upon arrangements made by
\nor on behalf of the Company or any Company Subsidiary. Prior to the date hereof,
\nthe Company has accurately described to Parent the Company’s arrangements with,
\nand the fees that may be paid by the Company to, the Company Financial Advisor
\nrelating to the Merger.<\/p>\n
ARTICLE 4.
\n REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB<\/p>\n
Except as set forth in the corresponding section of the Disclosure Letter
\ndelivered by Parent and Merger Sub to the Company prior to the execution of this
\nAgreement (the “Parent Disclosure Letter”) (and subject to Section 9.13 hereof),
\n ————————
\nParent and Merger Sub hereby jointly and severally represent and warrant to the
\nCompany as follows:<\/p>\n
Section 4.1 Organization and Qualification; Subsidiaries. Parent is a
\n ——————————————–
\ncorporation duly organized, validly existing and in good standing under the Laws
\nof Delaware. Merger Sub is a corporation duly organized and validly existing
\nunder the laws of the State of Washington and has paid all excise taxes required
\nby the Washington Department of Revenue. Each Significant Subsidiary of Parent
\n(together with Merger Sub, the “Parent Subsidiaries”) has been duly organized
\n ———————
\nand is validly existing and in good standing under the Laws of the jurisdiction
\nof its incorporation, except where the failure to be so organized, existing or
\nin good standing would not, individually or in the aggregate, reasonably be
\nexpected to have a Parent Material Adverse Effect. Each of Parent and the Parent
\nSubsidiaries has the requisite power and authority and all necessary
\ngovernmental approvals to own, lease and operate its properties and to carry on
\nits business as it is now being conducted, except where the failure have such
\npower,<\/p>\n
22<\/p>\n
authority and governmental approvals would not, individually or in the
\naggregate, reasonably be expected to have a Parent Material Adverse Effect. Each
\nof Parent and the Parent Subsidiaries is duly qualified or licensed to do
\nbusiness, and is in good standing (but only with respect to jurisdictions which
\nrecognize such concepts) in each jurisdiction where the character of the
\nproperties owned, leased or operated by it or the nature of its business makes
\nsuch qualification or licensing or good standing necessary, except for such
\nfailures to be so qualified or licensed and in good standing that would not,
\nindividually or in the aggregate, reasonably be expected to have a Parent
\nMaterial Adverse Effect.<\/p>\n
Section 4.2 Certificate of Incorporation and Bylaws; Corporate Books and
\n ————————————————————
\nRecords. The copies of the Parent Certificate and Parent’s Amended and Restated
\n——-
\nBylaws (the “Parent Bylaws”) that are listed as exhibits to Parent’s Form 10-K
\n —————
\nfor the year ended December 31, 2000 are complete and correct copies thereof as
\nin effect on the date hereof. The Parent is not in violation of any of the
\nprovisions of the Parent Certificate or the Parent Bylaws as of the date hereof
\nand will not, as of the Closing Date, be in violation of any of the provisions
\nof the Parent Certificate or Parent Bylaws, as such Parent Certificate and
\nParent Bylaws may be amended between the date hereof and the Closing Date. True
\nand complete copies of all minute books of Parent since January 1, 1999 have
\nbeen made available by Parent to the Company.<\/p>\n
Section 4.3 Capitalization.
\n —————<\/p>\n
(a) As of the date hereof, the authorized capital stock of Parent consists
\nof (a) 2,750,000,000 shares of Parent Common Stock and (b) 5,000,000 shares of
\npreferred stock, par value $0.0001 per share (the “Parent Preferred Stock”). As
\n ————————
\nof November 30, 2001, (a) 1,048,325,488 shares of Parent Common Stock were
\nissued and outstanding, all of which were validly issued and fully paid,
\nnonassessable and free of preemptive rights and (b) 8,659,960 shares of Parent
\nCommon Stock were held in the treasury of Parent or by Parent’s Subsidiaries. As
\nof the date hereof, 687,500 shares of Parent Preferred Stock are designated as
\nSeries A Junior Participating Preferred Stock, and no shares of Parent Preferred
\nStock are issued or outstanding. As of November 30, 2001, 95,657,177 shares of
\nParent Common Stock were reserved for issuance upon exercise of stock options,
\nrights and warrants outstanding as of such date. Except for stock options and
\nagreements or arrangements described in the Parent SEC Filings, including the
\nnotes or exhibits thereto, filed prior to the date of this Agreement and
\npursuant to the rights outstanding under the Rights Plan, as of the date hereof,
\nthere are no options, warrants or other rights, agreements, arrangements or
\ncommitments of any character to which Parent or any Parent Subsidiary is a party
\nor by which Parent or any Parent Subsidiary is bound relating to the issued or
\nunissued capital stock or other Equity Interests, or obligating Parent or any
\nParent Subsidiary to issue or sell any shares of its capital stock or other
\nEquity Interests. From November 30, 2001 to the date of this Agreement, Parent
\nhas not issued any Equity Interests with respect to Parent Common Stock, other
\nthan (x) Parent Common Stock issued upon exercise of stock options and (y)
\nEquity Interests granted or issued under existing stock-based incentive
\ncompensation plans. The shares of Parent Common Stock to be issued in connection
\nwith the Merger, when issued as contemplated herein, will be duly authorized,
\nvalidly issued, fully paid and nonassessable and will not be issued in violation
\nof any preemptive rights. Except as disclosed in the Parent SEC Filings,
\nincluding the notes and exhibits thereto, as of the date hereof, there are no
\noutstanding contractual obligations of Parent or any Parent Subsidiary (a)
\nrestricting the transfer of, or (b) requiring the repurchase, redemption or
\ndisposition of, or containing any right of first refusal<\/p>\n
23<\/p>\n
with respect to, any Parent Common Stock or any capital stock of, or other
\nEquity Interests in, any Parent Subsidiary. As of the date hereof, there are no
\noutstanding contractual obligations of Parent or any Parent Subsidiary (a)
\nrequiring the registration for sale of, (b) granting any preemptive or
\nantidilutive right with respect to, or (c) affecting the voting rights (except
\nfor the Stockholders’ Rights Agreement by and among Parent, AHP, MDP Holdings,
\nInc. and Lederle Parenterals, Inc., dated as of the date hereof) of, any Parent
\nCommon Stock. Except as disclosed in the Parent SEC Filings, including the notes
\nand exhibits thereto, as of the date hereof, there are no outstanding
\ncontractual obligations of Parent or any Parent Subsidiary (a) affecting the
\nvoting rights of, (b) requiring the registration for sale of, or (c) granting
\nany preemptive or antidilutive right with respect to or any capital stock of, or
\nother Equity Interests in, any Parent Subsidiary.<\/p>\n
(b) Each outstanding share of capital stock of each Parent Subsidiary is
\nduly authorized, validly issued, fully paid, nonassessable and free of
\npreemptive rights and is owned, beneficially and of record, by Parent free and
\nclear of all security interests, liens, claims, pledges, options, rights of
\nfirst refusal, agreements, limitations on Parent’s or any Parent Subsidiary’s
\nvoting rights, charges and other encumbrances of any nature whatsoever.<\/p>\n
(c) Except as a result of the Voting Agreement, neither Parent nor any
\nParent Subsidiary beneficially owns any Equity Interest in the Company.<\/p>\n
Section 4.4 Authority Relative to This Agreement. Each of Parent and Merger
\n ————————————
\nSub has all necessary corporate power and authority to execute and deliver this
\nAgreement, to perform its obligations hereunder and to consummate the
\ntransactions contemplated by this Agreement. Each of (a) the execution and
\ndelivery of this Agreement by each of Parent and Merger Sub and the consummation
\nby Parent and Merger Sub of such transactions and (b) the issuance of shares of
\nParent Common Stock in accordance with the Merger has been duly and validly
\nauthorized by all necessary corporate action by Parent and Merger Sub and no
\nother corporate proceedings on the part of Parent and Merger Sub and no other
\nstockholder votes are necessary to authorize this Agreement or to consummate
\nsuch transactions, other than, with respect to the Share Issuance, as provided
\nin Section 4.16. The Board of Directors of Parent, by resolutions adopted by
\nunanimous vote of those voting (and not subsequently rescinded or modified in
\nany way) at a meeting duly called and held at which a quorum was present and
\nacting throughout, has duly (i) determined that this Agreement and the Merger
\nare fair to and in the best interests of Parent and its stockholders, and has
\ndeclared the Merger to be advisable, (ii) approved and adopted this Agreement,
\nthe Merger, the Share Issuance and the other transactions contemplated hereby,
\n(iii) resolved to recommend the Share Issuance to its stockholders for approval
\nand (iv) directed that the Share Issuance be submitted to its stockholders for
\nconsideration. This Agreement has been duly authorized and validly executed and
\ndelivered by Parent and Merger Sub and constitutes the legal, valid and binding
\nobligations of each of Parent and Merger Sub, enforceable against Parent and
\nMerger Sub in accordance with its terms.<\/p>\n
Section 4.5 No Conflict; Required Filings and Consents.
\n ——————————————<\/p>\n
(a) The execution and delivery of this Agreement by Parent and Merger Sub
\ndo not, and the performance of this Agreement by Parent and Merger Sub will not,
\n(i) conflict with or violate any provision of the certificate or articles of
\nincorporation or bylaws of Parent or<\/p>\n
24<\/p>\n
Merger Sub, (ii) assuming that all consents, approvals, authorizations and
\npermits described in Section 4.5(b) have been obtained, that Parent’s
\nstockholders have approved the Share Issuance and that all filings and
\nnotifications described in Section 4.5(b) have been made, and any waiting
\nperiods thereunder have terminated or expired, conflict with or violate any Law
\napplicable to Parent or any Parent Subsidiary or by which any property or asset
\nof Parent or any Parent Subsidiary is bound or affected or (iii) require any
\nconsent or approval under, result in any breach of, any loss of any benefit
\nunder or constitute a change of control or default (or an event which with
\nnotice or lapse of time or both would become a default) under, or give to others
\nany right of termination, vesting, amendment, acceleration or cancellation of,
\nor result in the creation of a lien or other encumbrance on any property or
\nasset of Parent or any Parent Subsidiary pursuant to, any Contract, except, with
\nrespect to clauses (ii) and (iii), for any such conflicts, violations, breaches,
\ndefaults or other occurrences which would not, individually or in the aggregate,
\nreasonably be expected to (x) have a Parent Material Adverse Effect or (y)
\nprevent or materially delay the performance of this Agreement by Parent or
\nMerger Sub.<\/p>\n
(b) The execution and delivery of this Agreement by Parent and Merger Sub
\ndo not, and the performance of this Agreement by Parent and Merger Sub will not,
\nrequire any consent, approval, authorization or permit of, or filing with or
\nnotification to, any domestic or foreign Governmental Entity or any other
\nperson, except (i) under the Exchange Act, the Securities Act, any applicable
\nBlue Sky Law, the rules and regulations of Nasdaq, the HSR Act, foreign or
\nsupranational antitrust and competition Laws, and the filing and recordation of
\nthe Articles of Merger as required by the WBCA and (ii) where failure to obtain
\nsuch consents, approvals, authorizations or permits, or to make such filings or
\nnotifications to a person other than a Governmental Entity, would not,
\nindividually or in the aggregate, reasonably be expected to (x) have a Parent
\nMaterial Adverse Effect or (y) prevent or materially delay the performance under
\nthis Agreement by Parent or Merger Sub.<\/p>\n
Section 4.6 Permits; Compliance With Law. Parent and each Parent Subsidiary
\n —————————-
\nis in possession of all authorizations, licenses, permits, certificates,
\napprovals and clearances necessary to carry on their respective businesses in
\nthe manner described in the Parent SEC Filings filed prior to the date hereof
\nand as it is being conducted as of the date hereof (the “Parent Permits”), and
\n —————-
\nall such Parent Permits are valid and in full force and effect, except where the
\nfailure to have, or the suspension or cancellation of, or failure to be valid or
\nin full force and effect of, any of the Parent Permits would not, individually
\nor in the aggregate, reasonably be expected to have a Parent Material Adverse
\nEffect. Neither Parent nor any Parent Subsidiary is in conflict with any Law
\napplicable to Parent or any Parent Subsidiary that would, individually or in the
\naggregate, reasonably be expected to have a Parent Material Adverse Effect.<\/p>\n
Section 4.7 SEC Filings; Financial Statements.
\n ———————————<\/p>\n
(a) Parent has timely filed all registration statements, prospectuses,
\nforms, reports, definitive proxy statements, schedules and documents required to
\nbe filed by it under the Securities Act or the Exchange Act, as the case may be,
\nsince January 1, 1998 (collectively, the “Parent SEC Filings”). Each Parent SEC
\n ——————–
\nFiling (i) as of its date, complied in all material respects with the
\nrequirements of the Securities Act or the Exchange Act, as the case may be and
\n(ii) did not at the time it was filed contain any untrue statement of a material
\nfact or omit to state a material fact required to be stated therein or necessary
\nin order to make the statements made<\/p>\n
25<\/p>\n
therein, in the light of the circumstances under which they were made, not
\nmisleading. As of the date of this Agreement, no Subsidiary of Parent is subject
\nto the periodic reporting requirements of the Exchange Act.<\/p>\n
(b) Each of the consolidated financial statements (including, in each case,
\nany notes thereto) contained in the Parent SEC Filings was prepared in all
\nmaterial respects in accordance with GAAP applied (except as may be indicated in
\nthe notes thereto and, in the case of unaudited quarterly financial statements,
\nas permitted by Form 10-Q under the Exchange Act) on a consistent basis
\nthroughout the periods indicated (except as may be indicated in the notes
\nthereto), and each presented fairly the consolidated financial position, results
\nof operations and cash flows of Parent and its consolidated Subsidiaries as of
\nthe respective dates thereof and for the respective periods indicated therein
\n(subject, in the case of unaudited statements, to normal and recurring year-end
\nadjustments which did not and would not, individually or in the aggregate,
\nreasonably be expected to have a Parent Material Adverse Effect). The books and
\nrecords of Parent and its Subsidiaries have been, and are being, maintained in
\nall material respects in accordance with GAAP and any other applicable legal and
\naccounting requirements.<\/p>\n
(c) Except as and to the extent set forth on the consolidated balance sheet
\nof Parent and its consolidated Subsidiaries as of December 31, 2000 included in
\nParent’s Form 10-K for the year ended December 31, 2000, including the notes
\nthereto (the “Parent Form 10-K”), neither Parent nor any of its consolidated
\n ——————
\nSubsidiaries has any liabilities or obligations of any nature (whether accrued,
\nabsolute, contingent or otherwise) that would be required to be reflected on a
\nbalance sheet or in notes thereto prepared in accordance with GAAP, except for
\nliabilities or obligations incurred in the ordinary course of business
\nconsistent with past practice since December 31, 2000 and liabilities incurred
\nin connection with this Agreement and the transactions contemplated hereby that
\nwould not, individually or in the aggregate, reasonably be expected to have a
\nParent Material Adverse Effect.<\/p>\n
(d) As of the date hereof, no “material contract” (as such term is defined
\nin Item 601(b)(10) of Regulation S-K of the SEC) filed as an exhibit to the
\nParent Form 10-K has been amended or modified, except for such amendments or
\nmodifications which have been filed as an exhibit to a subsequently dated Parent
\nSEC Filing or are not required to be filed with the SEC.<\/p>\n
Section 4.8 Absence of Certain Changes or Events. Since December 31,
\n ————————————
\n2000, except as disclosed in the Parent Form 10-K or in Parent SEC Filings since
\nDecember 31, 2000 through to the date of this Agreement, including the notes
\nthereto, and except as specifically contemplated by, or as disclosed in, this
\nAgreement, Parent and its Subsidiaries have conducted their business in the
\nordinary course consistent with past practice and, since such date, there has
\nnot been (a) an event or development that would, individually or in the
\naggregate, reasonably be expected to have a Parent Material Adverse Effect or
\n(b) any event or development that would, individually or in the aggregate,
\nreasonably be expected to prevent or materially delay the performance of this
\nAgreement by Parent or Merger Sub.<\/p>\n
Section 4.9 Litigation. Except as disclosed in the Parent SEC Filings,
\n ———-
\nincluding the notes thereto, filed prior to the date of this Agreement or would
\nnot, individually or in the aggregate, reasonably be expected to have a Parent
\nMaterial Adverse Effect, (i) there is no<\/p>\n
26<\/p>\n
suit, claim, action, proceeding or investigation pending or, to the Knowledge of
\nParent, threatened in writing against Parent or any Parent Subsidiary or for
\nwhich Parent or any Parent Subsidiary is obligated to indemnify a third party,
\nand (ii) neither Parent nor any Parent Subsidiary is subject to any outstanding
\nand unsatisfied order, writ, injunction, decree or arbitration ruling, award or
\nother finding. There is no suit, claim, action, proceeding or investigation
\npending or, to the Knowledge of Parent, threatened in writing against Parent or
\nany Parent Subsidiary that, as of the date hereof, challenges the validity or
\npropriety, or seeks to prevent consummation of, the Merger or any other
\ntransaction contemplated by this Agreement.<\/p>\n
Section 4.10 Environmental Matters. Except as disclosed in the Parent
\n ———————
\nForm 10-K or in the Parent SEC Filings, including the notes thereto, since
\nDecember 31, 2000 through the date of this Agreement or would not, individually
\nor in the aggregate, reasonably be expected to have a Parent Material Adverse
\nEffect, Parent and the Parent Subsidiaries (i) are in compliance with all, and
\nare not subject to any liability, in each case with respect to any, applicable
\nEnvironmental Laws, (ii) hold or have applied for all Environmental Permits
\nnecessary to conduct their current operations, and (iii) are in compliance with
\ntheir respective Environmental Permits.<\/p>\n
Section 4.11 Intellectual Property. Except as disclosed in the Parent
\n ———————
\nForm 10-K or in the Parent SEC Filings, including the notes thereto, since
\nDecember 31, 2000 through the date of this Agreement or would not, individually
\nor in the aggregate, reasonably be expected to have a Parent Material Adverse
\nEffect: (i) Parent and its Subsidiaries own or have the right to use, whether
\nthrough ownership, licensing or otherwise, all Parent Intellectual Property,
\n(ii) no Parent Intellectual Property is the subject of any pending or, to
\nParent’s Knowledge, threatened action, suit, claim, investigation, arbitration
\nor other proceeding, (iii) there exists no prior act or current conduct or use
\nby Parent or any Parent Subsidiary or, to the Knowledge of Parent, any third
\nparty that would void or invalidate any Parent Intellectual Property, and (iv)
\nto the Knowledge of Parent, the making, using, selling, manufacturing,
\nmarketing, licensing, reproduction, distribution or publishing by Parent of any
\nprocess, manufacture or product does not, because of and to the extent that such
\nprocess, manufacture or product incorporates Parent Intellectual Property,
\ninfringe any valid claim of patent, trademark, service mark, trade name,
\ncopyright or other intellectual property right of any third party in the
\njurisdictions in which such making, using, selling, manufacturing, marketing,
\nlicensing, reproduction, distribution, or publishing occurs, and does not
\ninvolve the misappropriation or improper use or disclosure of any trade secrets,
\nconfidential information or know-how of any third party.<\/p>\n
Section 4.12 Regulatory Compliance.
\n ———————<\/p>\n
(a) All biological and drug products being manufactured, distributed or
\ndeveloped by Parent and its Subsidiaries (“Parent Pharmaceutical Products”) that
\n ——————————–
\nare subject to the jurisdiction of the FDA are being manufactured, labeled,
\nstored, tested, distributed and marketed in compliance with all applicable
\nrequirements under the FDCA and the Public Health Service Act, except for
\nnoncompliances which, individually or in the aggregate, would reasonably not be
\nexpected to have a Parent Material Adverse Effect.<\/p>\n
(b) Neither Parent nor any of its Subsidiaries have received any notice
\nsince January 1, 1999 that the FDA or any other Governmental Entity has
\ncommenced, or threatened<\/p>\n
27<\/p>\n
to initiate, any action to withdraw approval or request the recall of any Parent
\nPharmaceutical Product, or commenced, or threatened to initiate, any action to
\nenjoin or place restrictions on the production of any Parent Pharmaceutical
\nProducts.<\/p>\n
Section 4.13 Tax Treatment. None of Parent, nor any of its Subsidiaries
\n ————-
\nor Affiliates has taken or agreed to take any action that would prevent the
\nMerger from qualifying as a reorganization within the meaning of Section 368(a)
\nof the Code. Parent is not aware of any agreement, plan or other circumstance
\nthat would prevent the Merger from qualifying as a reorganization within the
\nmeaning of Section 368(a) of the Code.<\/p>\n
Section 4.14 Ownership of Merger Sub; No Prior Activities.
\n ——————————————–<\/p>\n
(a) Merger Sub was formed solely for the purpose of engaging in the
\ntransactions contemplated by this Agreement. All of the outstanding capital
\nstock of Merger Sub is owned directly by Parent.<\/p>\n
(b) Except for obligations or liabilities incurred in connection with its
\nincorporation or organization and the transactions contemplated by this
\nAgreement, Merger Sub has not and will not have incurred, directly or
\nindirectly, through any Subsidiary or Affiliate, any obligations or liabilities
\nor engaged in any business activities of any type or kind whatsoever or entered
\ninto any agreements or arrangements with any person. Merger Sub has no
\nSubsidiaries.<\/p>\n
Section 4.15 Opinion of Financial Advisor. Goldman, Sachs & Co. (the
\n —————————-
\n“Parent Financial Advisor”) has delivered to the Board of Directors of Parent
\n—————————
\nits opinion that, as of the date of such opinion, the Merger Consideration is
\nfair from a financial point of view to Parent.<\/p>\n
Section 4.16 Vote Required. The affirmative vote of the holders of a
\n ————-
\nmajority of the shares of Parent Common Stock represented at a meeting of the
\nstockholders of Parent called for such purpose and entitled to vote thereon
\n(provided that at least a majority of such shares are represented in person or
\nby proxy at such meeting) is the only vote of the holders of any class or series
\nof capital stock or other Equity Interests of Parent necessary to approve the
\nShare Issuance (the “Parent Stockholder Approval”).
\n —————————<\/p>\n
Section 4.17 Brokers. No broker, finder or investment banker (other than
\n ——-
\nthe Parent Financial Advisor, Bear, Stearns & Co. Inc. and Salomon Smith Barney
\nInc.) is entitled to any brokerage, finder’s or other fee or commission in
\nconnection with the Merger based upon arrangements made by or on behalf of
\nParent or any of its Subsidiaries.<\/p>\n
Section 4.18 Sufficient Funds. Parent will have at or prior to the
\n —————-
\nClosing and at the Effective Time sufficient immediately available funds and
\nsufficient authorized but unissued shares or treasury shares of Parent Common
\nStock to pay the Merger Consideration upon consummation of the Merger.<\/p>\n
ARTICLE 5.
\n COVENANTS<\/p>\n
Section 5.1 Conduct of Business by the Company Pending the Closing. The
\n ——————————————————
\nCompany agrees that, between the date of this Agreement and the Effective Time,
\nexcept as set<\/p>\n
28<\/p>\n
forth in Section 5.1 of the Company Disclosure Letter or as specifically
\npermitted by any other provision of this Agreement, or unless Parent shall
\notherwise agree in writing, the Company shall, and shall cause each Company
\nSubsidiary to, (x) maintain its existence in good standing under applicable Law,
\n(y) subject to the restrictions set forth in this Section 5.1 and Section 6.5,
\nconduct its operations only in the ordinary and usual course of business
\nconsistent with past practice and (z) use its reasonable best efforts to keep
\navailable the services of the current officers, key employees and consultants of
\nthe Company and each Company Subsidiary and, subject to Section 6.5, to preserve
\nthe current relationships of the Company and the Company Subsidiaries with their
\ncustomers, suppliers and other persons with which the Company or any Company
\nSubsidiary has significant business relations as is reasonably necessary in
\norder to preserve substantially intact its business organization. In addition,
\nwithout limiting the foregoing, except as set forth in Section 5.1 of the
\nCompany Disclosure Letter or as specifically permitted by any other provision of
\nthis Agreement, the Company shall not and shall not permit any of its
\nSubsidiaries to (unless required by applicable Law or the regulations or
\nrequirements of any stock exchange or regulatory organization applicable to the
\nCompany and its Subsidiaries), between the date of this Agreement and the
\nEffective Time, directly or indirectly, do, or agree to do, any of the following
\nwithout the prior written consent of Parent:<\/p>\n
(a) amend or otherwise change its articles or certificate of incorporation
\nor bylaws or equivalent organizational documents;<\/p>\n
(b) issue, sell, pledge, dispose of, grant, transfer, encumber, or
\nauthorize the issuance, sale, pledge, disposition, grant, transfer or
\nencumbrance of any shares of capital stock of, or other Equity Interests in, the
\nCompany or any Company Subsidiary of any class, or securities convertible or
\nexchangeable or exercisable for any shares of such capital stock or other Equity
\nInterests, or any options, warrants or other rights of any kind to acquire any
\nshares of such capital stock or other Equity Interests or such convertible or
\nexchangeable securities, or any other ownership interest, of the Company or any
\nCompany Subsidiary, except that (i) the Company may issue shares of Company
\nCommon Stock pursuant to the ESPP or upon exercise of Company Options
\noutstanding on the date hereof or hereafter granted in accordance with the
\nprovisions of subclause (ii), (iii) or (iv) of this clause (b), (ii) the Company
\nmay grant Company Options up to an aggregate of 1,100,000 shares of Company
\nCommon Stock to newly-hired employees and may grant Company Options up to an
\naggregate of 4,400,000 shares of Company Common Stock to existing employees and
\nnon-employee directors, in each case, in accordance with the terms of the
\nCompany Stock Option Plans consistent with past practice and with an exercise
\nprice per share of Company Common Stock no less than the fair market value of a
\nshare of Company Common Stock as of the date of grant, provided that in no event
\nshall the vesting or exercisability of any such Company Options accelerate
\nsolely as a result of the consummation of the transactions contemplated by this
\nAgreement, (iii) the Company may grant Company Options that are Replacement
\nOptions pursuant to Section 2.4(b), (iv) the Company may grant Company Options
\npursuant to existing contractual relationships and as set forth in the Company
\nDisclosure Letter, (v) the Company may grant Equity Interests in accordance with
\nSections 2.01 and 2.02 of the Governance Agreement, and (vi) the Company
\nSubsidiaries may issue shares of capital stock or other Equity Interests to the
\nCompany or any wholly-owned Company Subsidiary;<\/p>\n
(c) (i) sell, pledge, dispose of, transfer, lease, license, or encumber, or
\nauthorize the sale, pledge, disposition, transfer, lease, license, or
\nencumbrance of, any material<\/p>\n
29<\/p>\n
property or assets (other than Company Intellectual Property) of the Company or
\nany Company Subsidiary, except (A) sales, pledges, dispositions, transfers,
\nleases, licenses or encumbrances pursuant to existing Contracts, (B) sales,
\npledges, dispositions, transfers, leases, licenses or encumbrances of property
\nor assets by the Company or a Company Subsidiary in the ordinary course of
\nbusiness but not to exceed an aggregate value for all such sales, pledges,
\ndispositions, transfers, leases, licenses and encumbrances of $100,000,000, (C)
\nsales or dispositions of inventory and other tangible current assets, or (D) as
\nmay be required pursuant to Section 6.5(b); (ii) sell, pledge, dispose of,
\ntransfer, lease, license, abandon, fail to maintain or encumber, or authorize
\nthe sale, pledge, disposition, transfer, lease, license, abandonment, failure to
\nmaintain or encumbrance of, any Company Intellectual Property (other than
\nCompany Intellectual Property that protects or enhances the value of Enbrel),
\nexcept (A) sales, pledges, dispositions, transfers, leases, licenses,
\nabandonments, failures to maintain or encumbrances in the ordinary course of
\nbusiness which will not materially impair the conduct of the Company’s business
\nand (B) as may be required pursuant to Section 6.5(b); (iii) sell, pledge,
\ndispose of, transfer, lease, license, abandon, fail to maintain or encumber, or
\nauthorize the sale, pledge, disposition, transfer, lease, license, abandonment,
\nfailure to maintain or encumbrance of, any Company Intellectual Property which
\nprotects Enbrel, except (A) agreements entered into for clinical studies
\ninvolving Enbrel in the ordinary course of business and (B) material transfer
\nagreements relating to Enbrel entered into in the ordinary course of business;
\nor (iv) enter into any material commitment or transaction outside the ordinary
\ncourse of business consistent with past practice other than transactions between
\na wholly-owned Company Subsidiary and the Company or another wholly-owned
\nCompany Subsidiary;<\/p>\n
(d) declare, set aside, make or pay any dividend or other distribution
\n(whether payable in cash, stock, property or a combination thereof) with respect
\nto any of the capital stock of the Company (other than dividends or
\ndistributions paid by wholly-owned Company Subsidiaries to the Company or to
\nother wholly-owned Company Subsidiaries) or enter into any agreement with
\nrespect to the voting of the capital stock of the Company;<\/p>\n
(e) (i) reclassify, combine, split or subdivide any of its capital stock or
\nissue or authorize the issuance of any other securities in respect of, in lieu
\nof, or in substitution for, shares of its capital stock, or (ii) redeem,
\npurchase or otherwise acquire, directly or indirectly, any of its capital stock,
\nother Equity Interests or other securities;<\/p>\n
(f) (i) incur any indebtedness for borrowed money or issue any debt
\nsecurities or assume, guarantee or endorse, or otherwise as an accommodation
\nbecome responsible for, the obligations of any person (other than a wholly-owned
\nCompany Subsidiary) for borrowed money, except for indebtedness for borrowed
\nmoney under the Company’s existing credit facilities or replacement credit
\nfacilities in an aggregate amount not materially larger than the Company’s
\nexisting credit facilities, (ii) terminate, cancel, or agree to any material and
\nadverse change in, any Company Material Contract other than in the ordinary
\ncourse of business consistent with past practice, (iii) make or authorize any
\ncapital expenditure materially in excess of the Company’s budget as disclosed to
\nParent prior to the date hereof or (iv) make or authorize any material loan to
\nany person (other than a Company Subsidiary) outside the ordinary course of
\nbusiness;<\/p>\n
30<\/p>\n
(g) except as may be required by contractual commitments or corporate
\npolicies with respect to severance or termination pay in existence on the date
\nof this Agreement as disclosed in Section 3.9 or 6.10(c) of the Company
\nDisclosure Letter, (i) increase the compensation or benefits payable or to
\nbecome payable to its directors, officers or employees (except for increases in
\naccordance with past practices and methodologies in salaries or wages of
\nofficers and\/or employees of the Company or any Company Subsidiary), (ii) grant
\nany rights to severance or termination pay to, or enter into any employment or
\nseverance agreement with, any director, officer or other employee of the Company
\nor any Company Subsidiary (other than with respect to newly appointed directors
\nand newly hired employees in accordance with past practices of the Company or
\nany Company Subsidiary, provided that any such agreements shall not provide for
\nthe payment of any severance or termination pay solely as a result of the
\nexecution of this Agreement or the consummation of the transactions contemplated
\nhereby), (iii) establish, adopt, enter into or amend any collective bargaining,
\nbonus, profit sharing, thrift, compensation, stock option, restricted stock,
\npension, retirement, deferred compensation, employment, termination, severance
\nor other plan, agreement, trust, fund, policy or arrangement for the benefit of
\nany director, officer, consultant or employee, except to the extent required by
\napplicable Law or (iv) take any affirmative action to amend or waive any
\nperformance or vesting criteria or accelerate vesting, exercisability or funding
\nunder any Company Benefit Plan or Company Option;<\/p>\n
(h) make any material change in accounting policies or procedures, other
\nthan in the ordinary course of business consistent with past practice or except
\nas required by GAAP or by a Governmental Entity;<\/p>\n
(i) except in the ordinary course of business consistent with past
\npractice, make any material Tax election or settle or compromise any material
\nliability for Taxes, change any annual Tax accounting period, change any method
\nof Tax accounting, file any amended material Tax Return, enter into any closing
\nagreement relating to any material Tax, surrender any right to claim a material
\nTax refund, or consent to any extension or waiver of the statute of limitations
\nperiod applicable to any material Tax claim or assessment;<\/p>\n
(j) subject to Section 6.4(h), modify, amend or terminate, or waive,
\nrelease or assign any material rights or claims with respect to any
\nconfidentiality or standstill agreement to which the Company is a party and
\nwhich relates to a business combination involving the Company;<\/p>\n
(k) write up, write down or write off the book value of any assets,
\nindividually or in the aggregate, for the Company and the Company Subsidiaries
\ntaken as a whole, other than in the ordinary course of business or otherwise not
\nin excess of $50 million;<\/p>\n
(l) subject to Section 6.4(h), take any action to render inapplicable, or
\nto exempt any third party from, (i) the provisions of Chapter 23B.19 of the WBCA
\nor (ii) any other state takeover Law or state Law that purports to limit or
\nrestrict business combinations or the ability to acquire or vote shares;<\/p>\n
(m) acquire, or agree to acquire, from any Person any assets (not including
\nIntellectual Property), operations, business or securities or engage in, or
\nagree to engage in, any<\/p>\n
31<\/p>\n
merger, consolidation or other business combination with any Person, except (i)
\nin connection with capital expenditures permitted hereunder and except for
\nacquisitions of inventory and other assets (not including Intellectual Property)
\nin the ordinary course of business or (ii) for acquisitions of businesses or
\nassets (not including Intellectual Property) or business combinations having or
\ninvolving aggregate consideration not in excess of $50,000,000, which, in the
\ncase of clauses (i) and (ii), individually or in the aggregate, would not be
\nreasonably expected to result in any of the conditions to the Merger set forth
\nin Article 7 not being satisfied;<\/p>\n
(n) take any action that is intended or would reasonably be expected to
\nresult in any of the conditions to the Merger set forth in Article 7 not being
\nsatisfied;<\/p>\n
(o) adopt a shareholder rights agreement, or “poison pill”;<\/p>\n
(p) acquire, or agree to acquire, from any Person, any Intellectual
\nProperty, except in the ordinary course of business consistent with past
\npractice (including in size and nature); or<\/p>\n
(q) authorize or enter into any agreement or otherwise make any commitment
\nto do any of the foregoing.<\/p>\n
Section 5.2 Conduct of Business by Parent Pending the Closing. Parent
\n ————————————————-
\nagrees that, between the date of this Agreement and the Effective Time, except
\nas specifically permitted by any other provision of this Agreement or unless the
\nCompany shall otherwise agree in writing, Parent shall maintain its existence in
\ngood standing under applicable Law and Parent and its Subsidiaries shall
\ncontinue to conduct their businesses such that the primary business of Parent
\nand its Subsidiaries, taken as a whole, shall involve biotechnology or
\npharmaceuticals. Without limiting the foregoing, and as an extension thereof,
\nexcept as specifically permitted by any other provision of this Agreement,
\nParent shall not and shall not permit any of its Subsidiaries to (unless
\nrequired by applicable Laws or the regulations or requirements of any stock
\nexchange or regulatory organization applicable to Parent and its Subsidiaries),
\nbetween the date of this Agreement and the Effective Time, directly or
\nindirectly, do, or agree to do, any of the following, without the prior written
\nconsent of the Company:<\/p>\n
(a) amend or otherwise change the Parent Certificate in a manner that
\nadversely affects the rights of holders of Parent Common Stock (including
\nholders of the Parent Common Stock issuable in the Merger), except to increase
\nthe authorized number of shares of Parent capital stock (including Parent Common
\nStock);<\/p>\n
(b) issue any shares of Parent Common Stock if, following such issuance,
\nthere would be an insufficient number of shares of Parent Common Stock to pay
\nthe Merger Consideration and to be reserved for issuance in connection with the
\ntransactions contemplated hereby;<\/p>\n
(c) declare, set aside, make or pay any dividend or other distribution,
\npayable in cash, stock property or otherwise, with respect to any of Parent’s
\ncapital stock;<\/p>\n
32<\/p>\n
(d) take any action (including any acquisition or entering into any
\nbusiness combination) that is intended or could reasonably be expected to result
\nin any of the conditions to the Merger set forth in Article 7 not being
\nsatisfied; or<\/p>\n
(e) authorize or enter into any agreement or otherwise make any commitment
\nto do any of the foregoing.<\/p>\n
Section 5.3 Cooperation.
\n ———–<\/p>\n
(a) In addition to their other obligations set forth in this Agreement, the
\nCompany and Parent shall coordinate and cooperate in connection with (a) the
\npreparation of the Registration Statement and the Proxy Statement, (b)
\ndetermining whether any action by or in respect of, or filing with, any
\nGovernmental Entity is required, or any actions, consents, approvals or waivers
\nare required to be obtained from parties to any Company Material Contracts, in
\nconnection with the consummation of the Merger, and (c) seeking any such
\nactions, consents, approvals or waivers or making any such filings, furnishing
\ninformation required in connection therewith or with the Registration Statement
\nand the Proxy Statement.<\/p>\n
(b) As soon as reasonably practicable after the date hereof, Parent and
\nCompany shall establish an Integration Committee with a consultative function,
\nwhich shall be comprised of two senior executives of Parent, designated by the
\nChairman, President and Chief Executive Officer of the Parent, and two senior
\nexecutives of the Company, designated by the Chairman, President and Chief
\nExecutive Officer of the Company. Subject to applicable Law, the Integration
\nCommittee will be concerned with matters relating to the integration of Parent’s
\nand Company’s respective businesses and personnel following the Effective Time
\nand will periodically meet to discuss and review such matters.<\/p>\n
Section 5.4 Tax-Free Reorganization Treatment.
\n ———————————<\/p>\n
(a) Neither Company nor Parent shall, nor shall they permit any of their
\nrespective Subsidiaries to, take or cause to be taken any action that would
\ndisqualify the Merger as a reorganization within the meaning of Section 368(a)
\nof the Code. Parent and the Company shall use their reasonable best efforts, and
\nshall cause their respective Subsidiaries to use their reasonable best efforts,
\nto take or cause to be taken any action that would cause the Merger to qualify
\nas a reorganization within the meaning of Section 368(a) of the Code.<\/p>\n
(b) Each of the Company and Parent shall report the Merger as a
\nreorganization within the meaning of Section 368 of the Code, unless otherwise
\nrequired pursuant to a “determination” within the meaning of Section 1313(a) of
\nthe Code.<\/p>\n
Section 5.5 Control of Other Party’s Business. Nothing contained in this
\n ———————————
\nAgreement shall give Parent or Merger Sub, directly or indirectly, the right to
\ncontrol or direct the operations of the Company prior to the consummation of the
\nMerger. Prior to the consummation of the Merger, the Company shall exercise,
\nconsistent with the terms and conditions of this Agreement, complete control and
\nsupervision over its operations.<\/p>\n
33<\/p>\n
ARTICLE 6.
\n ADDITIONAL AGREEMENTS<\/p>\n
Section 6.1 Registration Statement; Proxy Statement.
\n —————————————<\/p>\n
(a) As promptly as practicable after the execution of this Agreement,
\nParent and the Company shall prepare and file with the SEC a joint proxy
\nstatement relating to the Company Shareholders’ Meeting and Parent Stockholders’
\nMeeting (together with any amendments thereof or supplements thereto, the “Proxy
\n ——
\nStatement”) and Parent shall prepare and file with the SEC a registration
\n———-
\nstatement on Form S-4 (together with all amendments thereto, the “Registration
\n ————-
\nStatement”; the prospectus contained in the Registration Statement together with
\n———-
\nthe Proxy Statement, the “Joint Proxy\/Prospectus”), in which the Proxy Statement
\n ————————
\nshall be included, in connection with the registration under the Securities Act
\nof the shares of Parent Common Stock to be issued to the shareholders of the
\nCompany as Merger Consideration. Each of Parent and the Company shall use
\nreasonable best efforts to cause the Registration Statement to become effective
\nas promptly as practicable, and, prior to the effective date of the Registration
\nStatement, Parent shall take all or any action reasonably required under any
\napplicable federal or state securities Laws in connection with the issuance of
\nshares of Parent Common Stock in the Merger. Each of Parent and the Company
\nshall furnish all information concerning it and the holders of its capital stock
\nas the other may reasonably request in connection with such actions and the
\npreparation of the Registration Statement and Proxy Statement. As promptly as
\nreasonably practicable after the Registration Statement shall have become
\neffective and the Proxy Statement shall have been cleared by the SEC, the
\nCompany and Parent shall mail the Joint Proxy\/Prospectus to their respective
\nshareholders; provided, however, that the parties shall consult and cooperate
\nwith each other in determining the appropriate time for mailing the Joint
\nProxy\/Prospectus in light of the date set for the Company Shareholders’ Meeting
\nand the Parent Stockholders’ Meeting. No filing of, or amendment or supplement
\nto, the Proxy Statement shall be made by the Company or Parent, and no filing
\nof, or amendment or supplement to, the Registration Statement shall be made by
\nParent, in each case, without providing the other party a reasonable opportunity
\nto review and comment thereon, which comments shall be considered in good faith.
\nParent and the Company each shall advise the other, promptly after it receives
\nnotice thereof, of the time when the Registration Statement has become effective
\nor any supplement or amendment has been filed, of the issuance of any stop
\norder, the suspension of the qualification of the Parent Common Stock issuable
\nin connection with the Merger for offering or sale in any jurisdiction, or any
\nrequest by the SEC for amendment of the Proxy Statement or the Registration
\nStatement or comments thereon and responses thereto or requests by the SEC for
\nadditional information.<\/p>\n
(b) The information supplied by Parent for inclusion in the Registration
\nStatement and the Proxy Statement shall not, at (i) the time the Registration
\nStatement is declared effective, (ii) the time the Proxy Statement (or any
\namendment thereof or supplement thereto) is first mailed to the shareholders of
\nthe Company, (iii) the time the Proxy Statement (or any amendment thereof or
\nsupplement thereto) is first mailed to stockholders of Parent, (iv) the time of
\nthe Company Shareholders’ Meeting and (v) the time of the Parent Stockholders’
\nMeeting, contain any untrue statement of a material fact or omit to state any
\nmaterial fact required to be stated therein or necessary in order to make the
\nstatements therein not misleading. If at any time prior to the Effective Time
\nany event or circumstance relating to Parent or any of<\/p>\n
34<\/p>\n
its Subsidiaries, or their respective officers or directors, should be
\ndiscovered by Parent which should be set forth in an amendment or a supplement
\nto the Registration Statement or Proxy Statement, Parent shall promptly inform
\nthe Company. All documents that Parent is responsible for filing with the SEC in
\nconnection with the transactions contemplated herein will comply as to form and
\nsubstance in all material respects with the applicable requirements of the
\nSecurities Act and the rules and regulations thereunder and the Exchange Act and
\nthe rules and regulations thereunder.<\/p>\n
(c) The information supplied by the Company for inclusion in the
\nRegistration Statement and the Proxy Statement shall not, at (i) the time the
\nRegistration Statement is declared effective, (ii) the time the Proxy Statement
\n(or any amendment thereof or supplement thereto) is first mailed to the
\nshareholders of the Company, (iii) the time the Proxy Statement (or any
\namendment thereof or supplement thereto) is first mailed to stockholders of
\nParent, (iv) the time of the Company Shareholders’ Meeting and (v) the time of
\nthe Parent Stockholders’ Meeting, contain any untrue statement of a material
\nfact or omit to state any material fact required to be stated therein or
\nnecessary in order to make the statements therein not misleading. If at any time
\nprior to the Effective Time any event or circumstance relating to the Company or
\nany Company Subsidiary, or their respective officers or directors, should be
\ndiscovered by the Company which should be set forth in an amendment or a
\nsupplement to the Registration Statement or Proxy Statement, the Company shall
\npromptly inform Parent. All documents that the Company is responsible for filing
\nwith the SEC in connection with the transactions contemplated herein will comply
\nas to form and substance in all material respects with the applicable
\nrequirements of the Securities Act and the rules and regulations thereunder and
\nthe Exchange Act and the rules and regulations thereunder.<\/p>\n
Section 6.2 Shareholders’ Meetings.
\n ———————-<\/p>\n
(a) The Company shall duly call and hold a meeting of its shareholders (the
\n“Company Shareholders’ Meeting”) as promptly as reasonably practicable in
\n——————————-
\naccordance with applicable Law following the date the Registration Statement
\nbecomes effective and the Proxy Statement is cleared by the SEC and after
\ncoordination with Parent, provided that the meeting shall be held not later than
\nfive Business Days prior to the Outside Date (provided that the Company shall
\nnot be required to hold the Company Shareholders’ Meeting prior to the date of
\nthe Parent Stockholders’ Meeting), for the purpose of voting upon the adoption
\nand approval of this Agreement. In connection with the Company Shareholders’
\nMeeting and the transactions contemplated hereby, the Company will (i) subject
\nto applicable Law, use its reasonable best efforts (including postponing or
\nadjourning the Company Shareholders’ Meeting to obtain a quorum or to solicit
\nadditional proxies) to obtain the necessary approvals by its shareholders of
\nthis Agreement, the Merger and the other transactions contemplated hereby and
\n(ii) otherwise comply with all legal requirements applicable to the Company
\nShareholders’ Meeting.<\/p>\n
(b) Parent shall duly call and hold a meeting of its stockholders (the
\n“Parent Stockholders’ Meeting”) as promptly as reasonably practicable in
\n——————————
\naccordance with applicable Law following the date the Registration Statement
\nbecomes effective and the Proxy Statement is cleared by the SEC and after
\ncoordination with the Company, provided that the meeting shall be held not later
\nthan five Business Days prior to the Outside Date (provided that the Parent
\nshall not be required to hold the Parent Stockholders’ Meeting prior to the date
\nof the Company<\/p>\n
35<\/p>\n
Shareholders’ Meeting), for the purpose of voting upon the approval of the Share
\nIssuance, and Parent shall use its reasonable best efforts to hold the Parent
\nStockholders’ Meeting as soon as practicable after the date on which the
\nRegistration Statement becomes effective. In connection with the Parent
\nStockholders’ Meeting and the transactions contemplated hereby, Parent will (i)
\nsubject to applicable Law, use its reasonable best efforts (including postponing
\nor adjourning Parent Stockholders’ Meeting to obtain a quorum or to solicit
\nadditional proxies) to obtain the necessary approvals by its stockholders of the
\nShare Issuance and (ii) otherwise comply with all legal requirements applicable
\nto the Parent Stockholders’ Meeting.<\/p>\n
(c) The Board of Directors of the Company shall recommend approval of this
\nAgreement and the Merger by the shareholders of the Company (the “Company
\n ——–
\nRecommendation”) and, subject to Section 6.4, shall not withdraw or adversely
\n—————
\nmodify (or propose to withdraw or adversely modify) such recommendation, and the
\nJoint Proxy Statement\/Prospectus shall contain such recommendation.<\/p>\n
(d) The Board of Directors of Parent shall recommend the approval of the
\nShare Issuance by the stockholders of Parent (the “Parent Recommendation”) and
\n ———————–
\nshall not withdraw or adversely modify (or propose to withdraw or adversely
\nmodify) such recommendation, and the Joint Proxy Statement\/Prospectus shall
\ncontain such recommendation.<\/p>\n
Section 6.3 Access to Information; Confidentiality.
\n ————————————–<\/p>\n
(a) Except as required pursuant to any confidentiality agreement or similar
\nagreement or arrangement to which the Company or Parent or any of their
\nrespective Subsidiaries is a party (which such person shall use reasonable best
\nefforts to cause the counterparty to waive) from the date of this Agreement to
\nthe Effective Time, the Company and Parent shall, and shall cause each of its
\nSubsidiaries and each of their respective directors, officers, employees,
\naccountants, consultants, legal counsel, investment bankers, advisors, and
\nagents and other representatives (collectively, “Representatives”) to (i)
\n —————–
\nprovide to the other party and its respective Representatives access at
\nreasonable times upon prior notice to the officers, employees, agents,
\nproperties, offices and other facilities of such party and its Subsidiaries and
\nto the books and records thereof and (ii) subject to applicable Laws relating to
\nthe exchange of information, furnish promptly such information concerning the
\nbusiness, properties, Contracts, assets, liabilities, personnel and other
\naspects of itself and its Subsidiaries as the other party and its
\nRepresentatives may reasonably request. No investigation conducted pursuant to
\nthis Section 6.3(a) shall affect or be deemed to modify or limit any
\nrepresentation or warranty made in this Agreement.<\/p>\n
(b) With respect to the information disclosed pursuant to this Section 6.3,
\nthe parties shall comply with, and shall cause their respective Representatives
\nto comply with, all of their respective obligations under the confidentiality
\nagreement, dated November 14, 2001, previously executed by the Company and
\nParent (the “Confidentiality Agreement”); provided, however, that the
\n —————————
\nrestrictions on Parent and its Subsidiaries, Affiliates and Representatives set
\nforth in paragraph 8 of the Confidentiality Agreement shall be inapplicable with
\nrespect to any of the transactions set forth in this Agreement.<\/p>\n
36<\/p>\n
Section 6.4 No Solicitation of Transactions.
\n ——————————-<\/p>\n
(a) The Company agrees that neither it nor any Company Subsidiary shall,
\nand that it shall use its reasonable best efforts to cause its and their
\nRepresentatives not to, directly or indirectly: (i) solicit, initiate,
\nencourage, knowingly facilitate or induce any inquiry with respect to, or the
\nmaking, submission or announcement of, any Acquisition Proposal, (ii)
\nparticipate in any discussions or negotiations regarding, or furnish to any
\nperson any nonpublic information with respect to, or take any other action to
\nfacilitate any inquiries or the making of any proposal that constitutes or may
\nreasonably be expected to lead to, any Acquisition Proposal (except to the
\nextent specifically permitted pursuant to this Section 6.4), (iii) engage in
\ndiscussions with any person with respect to any Acquisition Proposal, except to
\nnotify such person as to the existence of these provisions (except to the extent
\nspecifically permitted pursuant to this Section 6.4), (iv) approve, endorse or
\nrecommend any Acquisition Proposal with respect the Company (except to the
\nextent specifically permitted pursuant to this Section 6.4), or (v) enter into
\nany letter of intent or similar document or any agreement, commitment or
\nunderstanding contemplating or otherwise relating to any Acquisition Proposal or
\na transaction contemplated thereby (except for confidentiality agreements
\nspecifically permitted pursuant to Section 6.4(c)). The Company shall
\nimmediately terminate, and shall cause the Company Subsidiaries and its and
\ntheir Representatives to immediately terminate, all discussions or negotiations,
\nif any, with any third party with respect to, or any that could reasonably be
\nexpected to lead to or contemplate the possibility of, an Acquisition Proposal.
\nThe Company shall immediately demand that each person which has heretofore
\nexecuted a confidentiality agreement with the Company or any of its Affiliates
\nor Subsidiaries or any of its or their Representatives with respect to such
\nperson’s consideration of a possible Acquisition Proposal to immediately return
\nor destroy (which destruction shall be certified in writing by such person to
\nthe Company) all confidential information heretofore furnished by the Company or
\nany of its Affiliates or Subsidiaries or any of its or their Representatives to
\nsuch person or any of its Affiliates or Subsidiaries or any of its or their
\nRepresentatives.<\/p>\n
(b) Promptly after receipt of any Acquisition Proposal or any request for
\nnonpublic information or inquiry which it reasonably believes could lead to an
\nAcquisition Proposal, the Company shall provide Parent with written notice of
\nthe material terms and conditions of such Acquisition Proposal, request or
\ninquiry, and the identity of the person or group making any such Acquisition
\nProposal, request or inquiry, and a copy of all written materials provided in
\nconnection with such Acquisition Proposal, request or inquiry. After receipt of
\nthe Acquisition Proposal, request or inquiry, the Company shall promptly keep
\nParent informed in all material respects of the status and details (including
\nmaterial amendments or proposed material amendments) of any such Acquisition
\nProposal, request or inquiry and shall promptly provide to Parent a copy of all
\nwritten materials subsequently provided in connection with such Acquisition
\nProposal, request or inquiry.<\/p>\n
(c) If the Company receives an Acquisition Proposal which (i) constitutes a
\nSuperior Proposal or (ii) which the Board of Directors of the Company in good
\nfaith concludes proposes consideration that is more favorable to the Company’s
\nshareholders than the transactions contemplated by this Agreement and which
\ncould reasonably be expected to result in a Superior Proposal in all other
\nrespects, the Company shall promptly provide to Parent written notice that shall
\nstate expressly (A) that it has received an Acquisition Proposal which<\/p>\n
37<\/p>\n
constitutes a Superior Proposal or which could reasonably be expected to result
\nin a Superior Proposal, and (B) the identity of the party making such
\nAcquisition Proposal and the material terms and conditions of the Acquisition
\nProposal (the “Superior Proposal Notice”) and may then take the following
\n ————————–
\nactions:<\/p>\n
(i) furnish nonpublic information to the third party making such
\nAcquisition Proposal, provided, that (A) prior to so furnishing, the Company
\nreceives from the third party an executed confidentiality agreement containing
\ncustomary limitations on the use and disclosure of all nonpublic written and
\noral information furnished to such third party on its behalf and customary
\nstandstill provisions, and (B) contemporaneously with furnishing any such
\nnonpublic information to such third party, the Company furnishes a copy of such
\nnonpublic information to Parent (to the extent such nonpublic information has
\nnot been previously so furnished); and<\/p>\n
(ii) engage in negotiations with the third party with respect to the
\nAcquisition Proposal.<\/p>\n
(d) For a period of not less than five Business Days after Parent’s receipt
\nfrom the Company of each Superior Proposal Notice, the Company shall, if
\nrequested by Parent, negotiate in good faith with Parent to revise this
\nAgreement so that the Acquisition Proposal that constituted a Superior Proposal
\nno longer constitutes a Superior Proposal.<\/p>\n
(e) In response to the receipt of a Superior Proposal that has not been
\nwithdrawn and continues to constitute a Superior Proposal after the Company’s
\ncompliance with Section 6.4(d), the Board of Directors of the Company may
\nwithhold or withdraw the Company Recommendation and, in the case of a Superior
\nProposal that is a tender or exchange offer made directly to its shareholders,
\nmay recommend that its shareholders accept the tender or exchange offer (any of
\nthe foregoing actions, whether by the Board of Directors or a committee thereof,
\na “Change of Recommendation”), if both of the following conditions in Sections
\n ————————–
\n6.4(e)(i) and 6.4(e)(ii) are met:<\/p>\n
(i) the Company Shareholders’ Meeting has not occurred; and<\/p>\n
(ii) the Board of Directors of the Company has concluded in good faith,
\nfollowing the receipt of advice of its outside legal counsel, that, in light of
\nsuch Superior Proposal, the failure of the Board of Directors to effect a Change
\nof Recommendation would result in a breach of its fiduciary obligations to its
\nshareholders under applicable Law.<\/p>\n
(f) Notwithstanding anything to the contrary contained in this Agreement,
\n(i) the obligation of the Company to call, give notice of, convene and hold the
\nCompany Shareholders’ Meeting and to hold a vote of the Company’s shareholders
\non this Agreement and the Merger at the Company Shareholders’ Meeting shall not
\nbe limited or otherwise affected by the commencement, disclosure, announcement
\nor submission to it of any Acquisition Proposal (whether or not a Superior
\nProposal), or by any Change of Recommendation and (ii) in any case in which the
\nCompany withholds or withdraws the Company Recommendation pursuant to Section
\n6.4(e), recognizing that special circumstances, as provided in Section
\n23B.11.030 of the WBCA, exist in light of the provisions of this Section 6.4
\nand\/or the provisions of the Voting<\/p>\n
38<\/p>\n
Agreement, the Company shall submit this Agreement and the Merger to a vote of
\nits shareholders with no recommendation as permitted by Section 23B.11.030(2) of
\nthe WBCA. The Company agrees that it shall not submit to the vote of its
\nshareholders any Acquisition Proposal (whether or not a Superior Proposal) or
\npropose to do so.<\/p>\n
(g) Nothing contained in this Agreement shall be deemed to restrict the
\nCompany from complying with Rules 14d-9 or 14e-2 under the Exchange Act or be
\ndeemed to restrict the Company or Parent from making such other disclosures as
\nmay be required by federal securities laws or applicable State of Washington
\nfiduciary duties laws.<\/p>\n
(h) Notwithstanding anything to the contrary contained in this Agreement,
\nthe prohibitions contained in Sections 5.l(j) and 5.1(l) shall not be applicable
\nwith respect to a Person who has submitted a Superior Proposal to the Company.<\/p>\n
Section 6.5 Appropriate Action; Consents; Filings.
\n ————————————-<\/p>\n
(a) Subject to the proviso contained in Section 6.5(b)(ii), the Company and
\nParent shall use their reasonable best efforts to (i) take, or cause to be
\ntaken, all appropriate action, and do, or cause to be done, all things
\nnecessary, proper or advisable under applicable Law or otherwise to consummate
\nand make effective the transactions contemplated by this Agreement as promptly
\nas practicable, (ii) obtain from any Governmental Entities any consents,
\nlicenses, permits, waivers, approvals, authorizations or orders required (A) to
\nbe obtained or made by Parent or the Company or any of their Subsidiaries, (B)
\nto avoid any action or proceeding by any Governmental Entity (including, without
\nlimitation, those in connection with the HSR Act and antitrust and competition
\nLaws of any other applicable jurisdiction), in connection with the
\nauthorization, execution and delivery of this Agreement and the consummation of
\nthe transactions contemplated herein, including, without limitation, the Merger,
\nand (C) to prevent a Company Material Adverse Effect from occurring prior to or
\nafter the Effective Time or a Parent Material Adverse Effect from occurring
\nafter the Effective Time, and (iii) make all necessary filings, and thereafter
\nmake any other required submissions, with respect to this Agreement and the
\nMerger required under (A) the Securities Act and the Exchange Act, and any other
\napplicable federal or state securities Laws, (B) the HSR Act and antitrust and
\ncompetition Laws of any other applicable jurisdiction and (C) any other
\napplicable Law. Parent and the Company shall cooperate with each other in
\nconnection with the making of all filings referenced in the preceding sentence,
\nincluding providing copies of all such documents to the non-filing party and its
\nadvisors prior to filing and, if requested, to accept all reasonable additions,
\ndeletions or changes suggested in connection therewith. The Company and Parent
\nshall have the right to review in advance, and to the extent practicable each
\nshall consult the other on, all the information relating to the Company and the
\nCompany Subsidiaries or Parent and its Subsidiaries, as the case may be, that
\nappears in any filing made with, or written materials submitted to, any third
\nparty and\/or any Governmental Entity in connection with the Merger and the other
\ntransactions contemplated by this Agreement. Parent and the Company may, as each
\ndeems reasonably advisable and necessary, designate any competitively sensitive
\ninformation provided to the other under this Section 6.5(a) as “outside counsel
\nonly.” Such information shall be given only to outside counsel of the recipient.
\nIn addition, Parent and the Company may redact any information from such
\ndocuments shared with the other party or its counsel that is not pertinent to
\nthe subject matter of the filing or submission.<\/p>\n
39<\/p>\n
(b) Without limiting Section 6.5(a), Parent and the Company shall:<\/p>\n
(i) each use its reasonable best efforts to avoid the entry of, or to
\nhave vacated or terminated, any decree, order, or judgment that would restrain,
\nprevent or delay the Closing, on or before the Outside Date, including defending
\nthrough litigation on the merits any claim asserted in any court by any person;
\nand<\/p>\n
(ii) each use its reasonable best efforts to avoid or eliminate each
\nand every impediment under any antitrust, competition or trade regulation Law
\nthat may be asserted by any Governmental Entity with respect to the Merger so as
\nto enable the Closing to occur as soon as reasonably possible (and in any event
\nno later than the Outside Date), including implementing, contesting or resisting
\nany litigation before any court or quasi-judicial administrative tribunal
\nseeking to restrain or enjoin the Merger; provided, however, that nothing in
\nthis Agreement shall require any of Parent and its Subsidiaries or the Company
\nand its Subsidiaries to commit to any divestitures, licenses or hold separate or
\nsimilar arrangements with respect to its assets or conduct of business
\narrangements, whether as a condition to obtaining any approval from a
\nGovernmental Entity or any other person or for any other reason, if, in any such
\ncase, such divestiture, license, holding separate or arrangement (x) is not
\nconditioned upon the consummation of the Merger or (y) would, individually or in
\nthe aggregate, have a Parent Material Adverse Effect (including, for purposes of
\nthis clause, the Surviving Corporation and its Subsidiaries) after giving effect
\nto the Merger.<\/p>\n
(c) Subject to the proviso contained in Section 6.5(b)(ii) and the proviso
\ncontained in the following sentence of this Section 6.5(c), the Company and
\nParent shall give (or shall cause their respective Subsidiaries to give) any
\nnotices to third parties, and use, and cause their respective Subsidiaries to
\nuse, reasonable best efforts to obtain any non-governmental third party
\nconsents, (i) necessary, proper or advisable to consummate the transactions
\ncontemplated in this Agreement, (ii) required to be disclosed in the Company
\nDisclosure Letter or the Parent Disclosure Letter, as applicable, or (iii)
\nrequired to prevent a Company Material Adverse Effect from occurring prior to or
\nafter the Effective Time or a Parent Material Adverse Effect from occurring
\nafter the Effective Time. In the event that either party shall fail to obtain
\nany third party consent described in the first sentence of this Section 6.5(c),
\nsuch party shall use reasonable best efforts, and shall take any such actions
\nreasonably requested by the other party hereto, to minimize any adverse effect
\nupon the Company and Parent, their respective Subsidiaries, and their respective
\nbusinesses resulting, or which could reasonably be expected to result after the
\nEffective Time, from the failure to obtain such consent; provided that no
\nobligation to make a material payment or grant a material right not conditioned
\nupon the consummation of the Merger shall be imposed by this Section 6.5(c).<\/p>\n
(d) From the date of this Agreement until the Effective Time, each party
\nshall promptly notify the other party in writing of any pending or, to the
\nKnowledge of the Company or Parent, as appropriate, threatened action, suit,
\narbitration or other proceeding or investigation by any Governmental Entity or
\nany other person (i) challenging or seeking damages in connection with the
\nMerger or the conversion of Company Common Stock into Parent Common Stock
\npursuant to the Merger or (ii) seeking to restrain or prohibit the consummation
\nof the Merger or otherwise limit the right of Parent or its Subsidiaries to own
\nor operate all or any portion of the businesses or assets of the Company or its
\nSubsidiaries.<\/p>\n
40<\/p>\n
Section 6.6 Certain Notices. From and after the date of this Agreement
\n —————
\nuntil the Effective Time, each party hereto shall promptly notify the other
\nparty hereto of (a) the occurrence, or non-occurrence, of any event that would
\nbe likely to cause any condition to the obligations of any party to effect the
\nMerger and the other transactions contemplated by this Agreement not to be
\nsatisfied or (b) the failure of the Company or Parent, as the case may be, to
\ncomply with or satisfy any covenant, condition or agreement to be complied with
\nor satisfied by it pursuant to this Agreement which would reasonably be expected
\nto result in any condition to the obligations of any party to effect the Merger
\nand the other transactions contemplated by this Agreement not to be satisfied;
\nprovided, however, that the delivery of any notice pursuant to this Section 6.6
\nshall not cure any breach of any representation or warranty, the failure to
\ncomply with any covenant, the failure to meet any condition or otherwise limit
\nor affect the remedies available hereunder to the party receiving such notice.<\/p>\n
Section 6.7 Public Announcements. Parent and the Company will consult
\n ——————–
\nwith each other before issuing, and provide each other the opportunity to review
\nand make reasonable comment upon, any press release or making any public
\nstatement with respect to this Agreement and the transactions contemplated
\nhereby and, except as may be required by applicable Law or any listing agreement
\nwith Nasdaq, will not issue any such press release or make any such public
\nstatement prior to such consultation; provided, however, that each of Parent and
\nthe Company may make any public statement in response to specific questions by
\nthe press, analysts, investors or those attending industry conferences or
\nfinancial analyst conference calls, so long as any such statements are not
\ninconsistent with previous press releases, public disclosures or public
\nstatements made jointly by Parent and the Company and do not reveal non-public
\ninformation regarding the other party.<\/p>\n
Section 6.8 Nasdaq Listing. Parent shall use reasonable best efforts (a)
\n ————–
\nto cause the Parent Common Stock to be issued in the Merger to be approved for
\nlisting upon the Effective Time on Nasdaq or on such national securities
\nexchange as the Parent Common Stock is listed and (b) to cause the Parent Common
\nStock issued upon the exercise of converted Company Options to be approved for
\nlisting on Nasdaq or on such national securities exchange as Parent Common Stock
\nis listed.<\/p>\n
Section 6.9 Employee Benefit Matters.
\n ————————<\/p>\n
(a) For a period of at least two years following the Effective Time, Parent
\nshall provide employee benefits (excluding any benefits attributable to equity
\nbased plans or grants) to the employees and former employees of the Company and
\ntheir respective Subsidiaries (“New Parent Employees”) that are no less
\n ——————–
\nfavorable in the aggregate than those provided to such persons in effect on the
\ndate hereof. Nothing herein shall require Parent to continue any particular
\nCompany Benefit Plan or prevent the amendment or termination thereof (subject to
\nthe maintenance, in the aggregate, of the benefits as provided in the preceding
\nsentence); provided, however, that Parent shall not take any action (by way of
\namendment, termination or otherwise) which is in violation of the terms of any
\nCompany Benefit Plan or applicable Law.<\/p>\n
(b) With respect to each benefit plan of Parent (“Parent Benefit Plan”) in
\n ——————-
\nwhich New Parent Employees subsequently participate, for purposes of
\ndetermining vesting and entitlement to benefits, including for severance
\nbenefits and vacation entitlement (but not for<\/p>\n
41<\/p>\n
accrual of pension benefits), service with the Company (or predecessor employers
\nto the extent the Company provides past service credit) shall be treated as
\nservice with Parent; provided, that such service shall not be recognized to the
\nextent that such recognition would result in a duplication of benefits or to the
\nextent that such service was not recognized under the applicable Company Benefit
\nPlan. Such service also shall apply for purposes of satisfying any waiting
\nperiods, evidence of insurability requirements, or the application of any
\npre-existing condition limitations. Each Parent Benefit Plan shall waive
\npre-existing condition limitations to the same extent waived under the
\napplicable Company Benefit Plan. New Parent Employees shall be given credit for
\namounts paid under a corresponding benefit plan during the same period for
\npurposes of applying deductibles, co-payments and out-of-pocket maximums as
\nthough such amounts had been paid in accordance with the terms and conditions of
\nthe Parent Benefit Plan for the plan year in which the Effective Time occurs.<\/p>\n
(c) At the request of Parent, the Company shall terminate any and all
\n401(k) plans of the Company, effective not later than the day immediately
\npreceding the Closing Date. In the event that Parent requests that such 401(k)
\nplan(s) be terminated, the Company shall provide Parent with evidence that such
\n401(k) plan(s) have been terminated pursuant to resolution of Company’s Board of
\nDirectors (the form and substance of which shall be subject to review and
\napproval by Parent) not later than the day immediately preceding the Closing
\nDate.<\/p>\n
Section 6.10 Indemnification of Directors and Officers.
\n —————————————–<\/p>\n
(a) Parent shall, and shall cause the Surviving Corporation to, indemnify
\nand hold harmless, and provide advancement of expenses to, all past and present
\ndirectors, officers and employees of the Company or any of its Subsidiaries to
\nthe fullest extent permitted by Law for acts or omissions occurring at or prior
\nto the Effective Time (including for acts or omissions occurring in connection
\nwith the approval of this Agreement and the consummation of the transactions
\ncontemplated hereby) in their capacities as such.<\/p>\n
(b) For six years from the Effective Time, Parent shall, or shall cause the
\nSurviving Corporation to, cause to be maintained in effect for the benefit of
\nthe Company’s current directors and officers an insurance and indemnification
\npolicy that provides coverage for acts or omissions occurring prior to the
\nEffective Time (the “D&O Insurance”) covering each such person currently covered
\n ————-
\nby the officers’ and directors’ liability insurance policies of the Company on
\nterms with respect to coverage and in amounts no less favorable than those of
\nthe Company’s policies in effect on the date hereof; provided, however, that the
\nSurviving Corporation shall not be required to pay an annual premium for the D&O
\nInsurance in excess of 200% of the estimated premium for the 2002 fiscal year,
\nwhich premium the Company presently expects to be approximately $1,850,000.<\/p>\n
(c) Parent shall, and shall cause the Surviving Corporation to, cause to be
\nmaintained in effect in the Surviving Corporation’s (or any successor’s)
\nArticles of Incorporation and Bylaws provisions with respect to indemnification
\nand advancement of expenses that are at least as favorable to the intended
\nbeneficiaries as those contained in the Company Articles and the Company Bylaws
\nas in effect on the date hereof.<\/p>\n
42<\/p>\n
(d) Parent agrees to honor (and hereby guarantees the Surviving
\nCorporation’s performance under) all indemnification agreements entered into by
\nthe Company or any Company Subsidiary. In the event that Parent or the Surviving
\nCorporation or any of their respective successors or assigns (i) consolidates
\nwith or merges into any other person and is not the continuing or surviving
\ncorporation or entity of such consolidation or merger or (ii) transfers or
\nconveys all or substantially all its properties and assets to any person, then,
\nand in each such case, Parent shall cause proper provisions to be made so that
\nthe successors and assigns of the Parent or the Surviving Corporation, as the
\ncase may be, assume the obligations set forth in this Section 6.10. The
\nobligations of Parent and the Surviving Corporation under this Section 6.10
\nshall not be terminated or modified in such a manner as to adversely affect any
\nindemnitee to whom this Section 6.10 applies without the express written consent
\nof such affected indemnitee (it being expressly agreed that the indemnitees to
\nwhom this Section 6.10 applies shall be third party beneficiaries of this
\nSection 6.10).<\/p>\n
Section 6.11 Plan of Reorganization. This Agreement is intended to
\n ———————-
\nconstitute a “plan of reorganization” within the meaning of Treasury Regulation
\nSection 1.368-2(g).<\/p>\n
Section 6.12 Affiliate Letters. The Company shall, promptly after the
\n —————–
\ndate hereof and prior to the mailing of the Joint Proxy\/Prospectus, deliver to
\nParent a list setting forth the names of all persons the Company expects to be,
\nat the time of the Company Shareholders’ Meeting, “affiliates” of the Company
\nfor purposes of Rule 145 under the Securities Act. The Company shall furnish
\nsuch information and documents as Parent may reasonably request for the purpose
\nof reviewing the list. The Company shall use reasonable best efforts to cause
\neach person who is identified as an affiliate in the list furnished or
\nsupplemented pursuant to this Section 6.12 to execute a written agreement,
\npromptly following the date hereof, in substantially the form of Exhibit 6.12
\nhereto.<\/p>\n
Section 6.13 Section 16 Matters. Prior to the Effective Time: (a) the
\n ——————
\nBoard of Directors of Parent, or an appropriate committee of non-employee
\ndirectors thereof, shall adopt a resolution consistent with the interpretive
\nguidance of the SEC so that the acquisition by any officer or director of the
\nCompany who may become a covered person of Parent for purposes of Section 16 of
\nthe Exchange Act (together with the rules and regulations thereunder, “Section
\n ——-
\n16”), of shares of Parent Common Stock or options to purchase shares of Parent
\n—
\nCommon Stock pursuant to this Agreement and the Merger shall be an exempt
\ntransaction for purposes of Section 16; and (b) the Board of Directors of the
\nCompany or an appropriate committee of non-employee directors thereof, shall
\nadopt a resolution consistent with the interpretive guidance of the SEC so that
\nthe disposition by any officer or director of the Company who is a covered
\nperson of the Company for purposes of Section 16 of shares of Company Common
\nStock or Company Options pursuant to this Agreement and the Merger shall be an
\nexempt transaction for purposes of Section 16.<\/p>\n
Section 6.14 Stock Award Matters.
\n ——————-<\/p>\n
(a) The Company shall, and shall cause the administrator(s) of each of the
\nCompany Stock Option Plans and the ESPP to, take any and all actions necessary
\n(under the applicable Company Stock Option Plan and otherwise) to (i) cause the
\nCompany Options to be treated in accordance with Section 2.4 hereof, including,
\nwithout limitation, amending the<\/p>\n
43<\/p>\n
Company Stock Option Plans and, if necessary or desirable, obtaining the consent
\nof the optionholders to such treatment; and (ii) cause the stock purchase rights
\noutstanding under the ESPP to be assumed and converted into rights to purchase
\nParent Common Stock pursuant to Section 2.5 in such manner as will not result in
\nacceleration of the exercise of stock purchase rights under the ESPP.<\/p>\n
(b) Promptly after the Effective Time, Parent shall file one or more
\nregistration statements on Form S-3 or Form S-8, as the case may be (or any
\nother successor or other appropriate forms), with respect to the shares of
\nParent Common Stock subject to options and purchase rights issued pursuant to
\nSections 2.4 and 2.5 and shall maintain the effectiveness of such registration
\nstatement or registration statements (and maintain the current status of the
\nprospectus or prospectuses contained therein) for so long as such options remain
\noutstanding.<\/p>\n
Section 6.15 Restructure of Transaction. In the event that either of
\n ————————–
\nLatham & Watkins, counsel to Parent, or Skadden, Arps, Slate, Meagher & Flom
\nLLP, counsel to the Company, is unable to render its opinion pursuant to Section
\n7.2(c) or Section 7.3(c), respectively, the structure of the Merger shall be
\nrevised to provide for the merger of the Company with and into Merger Sub with
\nMerger Sub being the surviving entity in such Merger (the “Forward Subsidiary
\n ——————
\nMerger”), subject to the approval of each of the Company and Parent which
\n——
\napproval shall not be unreasonably withheld or delayed; provided, that if a
\nForward Subsidiary Merger structure would not result in each of Latham & Watkins
\nor Skadden, Arps, Slate, Meagher & Flom LLP being able to render such respective
\nopinions, the Company and Parent shall negotiate in good faith to revise the
\nstructure of the business combination between the Company and Parent such that
\neach of Latham & Watkins and Skadden, Arps, Slate, Meagher & Flom LLP will be
\nable to render such opinion; provided, further, that no such revision to the
\nstructure of the Merger shall (a) result in any change in the Merger
\nConsideration, (b) be materially adverse to the interests of Parent, the
\nCompany, Merger Sub, the holders of shares of Parent Common Stock or the holders
\nof shares of Company Common Stock or (c) unreasonably impede or delay
\nconsummation of the Merger. If the structure of the Merger is so revised, this
\nAgreement shall be amended by the parties as appropriate to give effect to the
\nrevised structure of the Merger with each party executing a written amendment to
\nthis Agreement as necessary to reflect the foregoing.<\/p>\n
ARTICLE 7.
\n CLOSING CONDITIONS<\/p>\n
Section 7.1 Conditions to Obligations of Each Party Under This Agreement.
\n ————————————————————
\nThe respective obligations of each party to effect the Merger and the other
\ntransactions contemplated herein shall be subject to the satisfaction at or
\nprior to the Effective Time of the following conditions, any or all of which may
\nbe waived, in whole or in part, to the extent permitted by applicable Law:<\/p>\n
(a) Effectiveness of the Registration Statement. The Registration Statement
\nshall have been declared effective by the SEC under the Securities Act. No stop
\norder suspending the effectiveness of the Registration Statement shall have been
\nissued by the SEC and no proceedings for that purpose shall have been initiated
\nor, to the Knowledge of Parent or the Company, threatened by the SEC.<\/p>\n
44<\/p>\n
(b) Shareholder and Stockholder Approval. The Company Shareholder Approval
\nand the Parent Stockholder Approval shall have been obtained.<\/p>\n
(c) No Order. No Governmental Entity, nor any federal or state court of
\ncompetent jurisdiction shall have enacted, issued, promulgated, enforced or
\nentered any statute, rule, regulation, executive order, decree, judgment or
\ninjunction or order (whether temporary, preliminary or permanent), in any case
\nwhich is in effect and which prevents or prohibits consummation of the Merger.<\/p>\n
(d) Consents and Approvals. Other than the filing provided for under
\nSection 1.2 and filings pursuant to the HSR Act, all consents, approvals and
\nauthorizations of any Governmental Entity required of Parent, the Company or any
\nof their Subsidiaries to consummate the Merger, the failure of which to be
\nobtained or taken, individually or in the aggregate, would have a Parent
\nMaterial Adverse Effect (determined, for purposes of this clause, after giving
\neffect to the Merger), shall have been obtained.<\/p>\n
(e) HSR Act. The applicable waiting periods, together with any extensions
\nthereof, under the HSR Act shall have expired or been terminated.<\/p>\n
(f) Nasdaq Listing. The shares of Parent Common Stock issuable to the
\nCompany’s shareholders in the Merger and such other shares of Parent Common
\nStock to be reserved for issuance in connection with the Merger shall have been
\napproved for listing on Nasdaq or on such national securities exchange as Parent
\nCommon Stock is then listed, subject to official notice of issuance.<\/p>\n
(g) Litigation. There shall not be instituted or pending any action,
\nlitigation or proceeding by any Governmental Entity (i) seeking to prohibit,
\nrestrain or otherwise interfere with the Merger or the ownership or operation by
\nParent or any of its Subsidiaries of all or any portion of the business or
\nassets of the Company or Parent or any of their Subsidiaries or to compel Parent
\nor any of its Subsidiaries to dispose of or hold separate all or any portion of
\nthe business or assets of the Company or Parent or any of their respective
\nSubsidiaries, or (ii) seeking divestiture of any shares of Company Common Stock
\n(or shares of stock of the Surviving Corporation) or seeking to impose or
\nconfirm limitations on the ability of Parent to effectively exercise full rights
\nof ownership of the shares of Company Common Stock (or shares of stock of the
\nSurviving Corporation), including the right to vote any securities on any
\nmatters properly presented to shareholders, in the case of clause (i) or (ii),
\nwhich would, or would reasonably be expected to, have a Parent Material Adverse
\nEffect (determined, for purposes of this clause, after giving effect to the
\nMerger).<\/p>\n
Section 7.2 Additional Conditions to Obligations of Parent and Merger Sub.
\n ————————————————————-
\nThe obligations of Parent and Merger Sub to effect the Merger and the other
\ntransactions contemplated herein are also subject to the following conditions:<\/p>\n
(a) Representations and Warranties. The representations and warranties of
\nthe Company contained in this Agreement shall be true and correct (without
\ngiving effect to any limitation as to “materiality” or “Company Material Adverse
\nEffect” set forth therein) at and as of the Effective Time as if made at and as
\nof such time (except to the extent expressly made as of<\/p>\n
45<\/p>\n
an earlier date, in which case as of such earlier date), except where the
\nfailure of such representations and warranties to be true and correct (without
\ngiving effect to any limitation as to “materiality” or “Company Material Adverse
\nEffect” set forth therein) would not, individually or in the aggregate, result
\nin a Company Material Adverse Effect. Parent shall have received a certificate
\nsigned by an executive officer of the Company on its behalf to the foregoing
\neffect.<\/p>\n
(b) Agreements and Covenants. The Company shall have performed or complied
\nin all material respects with all agreements and covenants required by this
\nAgreement to be performed or complied with by it on or prior to the Effective
\nTime. Parent shall have received a certificate of an executive officer of the
\nCompany to that effect.<\/p>\n
(c) Parent Tax Opinion. Parent shall have received the opinion of Latham & Watkins, dated the date of the Effective Time, to the effect that the Merger
\nwill be treated for Federal income Tax purposes as a reorganization within the
\nmeaning of Section 368(a) of the Code. In rendering such opinion, Latham & Watkins shall receive and rely upon representations contained in letters of
\nParent and the Company to be delivered as of the Effective Time substantially in
\nthe forms attached hereto as Exhibits 7.2(c)(i) and 7.2(c)(ii), respectively.
\nThe opinion referred to in this Section 7.2(c) shall not be waivable after
\nreceipt of the Company Shareholder Approval or the Parent Stockholder Approval
\nreferred to in Section 7.1(b), unless further stockholder approval is obtained
\nwith appropriate disclosure.<\/p>\n
(d) AHP Agreements. The AHP Agreements shall be in full force and effect,
\nand no authorized officer of AHP shall have notified Parent in writing of, and
\nAHP shall not have publicly announced, AHP’s intention to repudiate such
\nagreements.<\/p>\n
Section 7.3 Additional Conditions to Obligations of the Company. The
\n —————————————————
\nobligation of the Company to effect the Merger and the other transactions
\ncontemplated in this Agreement is also subject to the following conditions:<\/p>\n
(a) Representations and Warranties. The representations and warranties of
\nParent contained in this Agreement shall be true and correct (without giving
\neffect to any limitation as to “materiality” or “Parent Material Adverse Effect”
\nset forth therein) at and as of the Effective Time as if made at and as of such
\ntime (except to the extent expressly made as of an earlier date, in which case
\nas of such earlier date), except where the failure of such representations and
\nwarranties to be true and correct (without giving effect to any limitation as to
\n“materiality” or “Parent Material Adverse Effect” set forth therein) would not,
\nindividually or in the aggregate, result in a Parent Material Adverse Effect.
\nThe Company shall have received a certificate signed by an executive officer of
\nParent on its behalf to the foregoing effect.<\/p>\n
(b) Agreements and Covenants. Parent shall have performed or complied in
\nall material respects with all agreements and covenants required by this
\nAgreement to be performed or complied with by it on or prior to the Effective
\nTime. The Company shall have received a certificate of an executive officer of
\nParent to that effect.<\/p>\n
(c) Company Tax Opinion. The Company shall have received the opinion of
\nSkadden, Arps, Slate, Meagher & Flom LLP, dated the date of the Effective Time,
\nto the effect that the Merger will be treated for federal income Tax purposes as
\na reorganization within the<\/p>\n
46<\/p>\n
meaning of Section 368(a) of the Code. In rendering such opinion, Skadden, Arps,
\nSlate, Meagher & Flom LLP shall receive and rely upon representations contained
\nin letters of Parent and the Company to be delivered as of the Effective Time
\nsubstantially in the form attached hereto as Exhibits 7.2(c)(i) and 7.2(c)(ii),
\nrespectively. The opinion referred to in this Section 7.3(c) shall not be
\nwaivable after receipt of the Company Shareholder Approval or the Parent
\nStockholder Approval referred to in Section 7.1(b), unless further stockholder
\napproval is obtained with appropriate disclosure.<\/p>\n
ARTICLE 8.
\n TERMINATION, AMENDMENT AND WAIVER<\/p>\n
Section 8.1 Termination. This Agreement may be terminated at any time prior
\n ———–
\nto the Effective Time, by action taken or authorized by the Board of Directors
\nof the terminating party or parties, whether before or after approval of the
\nmatters presented in connection with the Merger by the shareholders of the
\nCompany or the stockholders of Parent:<\/p>\n
(a) By mutual written consent of Parent and the Company, which consent
\nshall have been approved by action of their respective Boards of Directors;<\/p>\n
(b) By written notice of either the Company or Parent, if the Merger shall
\nnot have been consummated prior to September 30, 2002 (such date, as it may be
\nextended as provided below, shall be referred to herein as the “Outside Date”);
\n ————–
\nprovided, however, that such date may, from time to time, be extended by either
\nparty (by written notice thereof to the other party) up to and including
\nDecember 31, 2002 in the event all conditions to effect the Merger other than
\none or more conditions set forth in Sections 7.1(c), 7.1(d), 7.1(e) or 7.1(g)
\n(the “Regulatory Conditions”) have been or are capable of being satisfied at the
\ntime of each such extension and the Regulatory Conditions have been or are
\nreasonably capable of being satisfied on or prior to December 31, 2002; provided
\nfurther that the right to terminate this Agreement under this Section 8.1(b)
\nshall not be available to any party whose failure to fulfill any obligation
\nunder this Agreement has been the cause of, or results in, the failure of the
\nMerger to occur on or before such date;<\/p>\n
(c) By written notice of either the Company or Parent, if any Governmental
\nEntity shall have issued an order, decree or ruling or taken any other action
\npermanently restraining, enjoining or otherwise prohibiting the Merger, and such
\norder, decree, ruling or other action shall have become final and nonappealable
\n(which order, decree, ruling or other action the parties shall have used their
\nreasonable best efforts to resist, resolve or lift, as applicable, subject to
\nSection 6.5);<\/p>\n
(d) By written notice of Parent, if (i) the Board of Directors of the
\nCompany shall have withdrawn or adversely modified, or shall have resolved to
\nwithdraw or adversely modify, the Company Recommendation; (ii) the Board of
\nDirectors of the Company shall have approved or recommended, or shall have
\nresolved to approve or recommend, to the shareholders of the Company, an
\nAcquisition Proposal other than that contemplated by this Agreement; or (iii)
\nthe Company fails to call or hold the Company Shareholders’ Meeting by the fifth
\nday prior to the Outside Date;<\/p>\n
47<\/p>\n
(e) By written notice of the Company, if (i) the Board of Directors of
\nParent shall have withdrawn or adversely modified, or shall have resolved to
\nwithdraw or adversely modify, the Parent Recommendation or (ii) Parent fails to
\ncall or hold the Parent Stockholders’ Meeting by the fifth day prior to the
\nOutside Date;<\/p>\n
(f) By written notice of Parent, if there has been a breach by the Company
\nof any representation, warranty, covenant or agreement contained in this
\nAgreement which (i) would result in a failure of a condition set forth in
\nSection 7.2(a) or 7.2(b) and (ii) cannot be cured prior to the Outside Date,
\nprovided that Parent shall have given the Company written notice, delivered at
\nleast twenty days prior to such termination, stating Parent’s intention to
\nterminate this Agreement pursuant to this Section 8.1(f) and the basis for such
\ntermination;<\/p>\n
(g) By written notice of the Company, if there has been a breach by Parent
\nof any representation, warranty, covenant or agreement contained in this
\nAgreement which (i) would result in a failure of a condition set forth in
\nSection 7.3(a) or 7.3(b) and (ii) cannot be cured prior to the Outside Date,
\nprovided that the Company shall have given Parent written notice, delivered at
\nleast twenty days prior to such termination, stating the Company’s intention to
\nterminate this Agreement pursuant to this Section 8.1(g) and the basis for such
\ntermination; or<\/p>\n
(h) By written notice of either Parent or the Company if (i) the Company
\nShareholder Approval shall not have been obtained at the Company Shareholders’
\nMeeting duly convened therefor (or at any adjournment or postponement thereof)
\nat which a quorum is present and the vote to adopt and approve this Agreement
\nand the Merger is taken, or (ii) the Parent Stockholder Approval shall not have
\nbeen obtained at the Parent Stockholders’ Meeting duly convened therefor (or at
\nany adjournment or postponement thereof) at which a quorum is present and the
\nvote to approve the Share Issuance is taken.<\/p>\n
Section 8.2 Effect of Termination.
\n ———————<\/p>\n
(a) Limitation on Liability. In the event of termination of this Agreement
\nby either the Company or Parent as provided in Section 8.1, this Agreement shall
\nforthwith become void and there shall be no liability or obligation on the part
\nof Parent, Merger Sub or the Company or their respective Subsidiaries, officers
\nor directors, except with respect to Sections 6.3(b) and 8.2 and Article 9 and
\nwith respect to any liabilities or damages incurred or suffered by a party as a
\nresult of the willful and material breach by the other party of any of its
\nrepresentations, warranties, covenants or other agreements set forth in this
\nAgreement.<\/p>\n
(b) Parent Expenses. Parent and the Company agree that if this Agreement is
\nterminated pursuant to Sections 8.1(f), then the Company shall pay Parent an
\namount equal to the sum of Parent’s Expenses up to an amount equal to $15
\nmillion.<\/p>\n
(c) Company Expenses. Parent and the Company agree that if this Agreement
\nis terminated pursuant to Sections 8.1(g), then Parent shall pay to the Company
\nan amount equal to the sum of the Company’s Expenses up to an amount equal to
\n$15 million.<\/p>\n
(d) Payment of Expenses. Payment of Expenses pursuant to Sections 8.2(b) or
\n8.2(c) shall be made not later than two Business Days after delivery to the
\nother party of notice<\/p>\n
48<\/p>\n
of demand for payment and a documented itemization setting forth in reasonable
\ndetail all Expenses of the party entitled to receive payment (which itemization
\nmay be supplemented and updated from time to time by such party until the
\nninetieth day after such party delivers such notice of demand for payment).<\/p>\n
(e) Company Termination Fee.<\/p>\n
(i) In the event that this Agreement is terminated pursuant to (A)
\nSection 8.1(d)(i) and the Board of Directors of the Company has withdrawn or
\nadversely modified the Company Recommendation in such a manner that the Company
\ncannot submit this Agreement to a vote of the Company’s shareholders pursuant to
\nSection 23B.11.030(2) of the WBCA, (B) Section 8.1(d)(ii), or (C) Section
\n8.1(d)(iii), then the Company shall pay to Parent, within two Business Days
\nfollowing written notice of such termination, a termination fee of $475,000,000
\nin immediately available funds.<\/p>\n
(ii) In the event that the Company shall have withdrawn or adversely
\nmodified the Company Recommendation prior to the Company Shareholders’ Meeting
\nand this Agreement is terminated pursuant to Section 8.1(h)(i), then the Company
\nshall pay to Parent, within two Business Days following written notice of such
\ntermination, a termination fee of $475,000,000 in immediately available funds.<\/p>\n
(iii) In the event that (A) this Agreement is terminated pursuant to
\nSection 8.1(h)(i) and, at any time after the date of this Agreement and before
\nthe vote on this Agreement at the Company Shareholders’ Meeting, an Acquisition
\nProposal with respect to the Company shall have been publicly announced and not
\nbona fide withdrawn and (B) a Competing Transaction with respect to the Company
\nis consummated or the Company enters into a definitive agreement with respect to
\na Competing Transaction, in either case, within twelve months following the
\ntermination of this Agreement, then the Company shall pay to Parent, within two
\nBusiness Days after the earlier of the consummation of such Competing
\nTransaction or execution of a definitive agreement with respect to such
\nCompeting Transaction, a fee of $475,000,000 in immediately available funds.<\/p>\n
(f) Parent Termination Fee.<\/p>\n
(i) In the event that the Board of Directors of Parent shall have
\nwithdrawn or adversely modified the Parent Recommendation and, thereafter, this
\nAgreement is terminated pursuant to Section 8.1(h)(ii), then Parent shall pay to
\nthe Company, within two Business Days following written notice of such
\ntermination, a termination fee of $475,000,000 in immediately available funds.<\/p>\n
(ii) In the event that this Agreement is terminated pursuant to Section
\n8.1(e)(ii), then Parent shall pay to the Company, within two Business Days
\nfollowing written notice of such termination, a termination fee of $475,000,000
\nin immediately available funds.<\/p>\n
(g) All Payments. All payments under Section 8.2 shall be made by wire
\ntransfer of immediately available funds to an account designated by the party
\nentitled to receive payment. The Company and Parent acknowledge that the
\nagreements contained in Section 8.2<\/p>\n
49<\/p>\n
are an integral part of the transactions contemplated by this Agreement and
\nthat, without these agreements, neither the Company nor Parent would enter into
\nthis Agreement. Accordingly, if either party fails promptly to pay any amount
\ndue pursuant to this Section 8.2 and, in order to obtain such payment, the
\nCompany or Parent, as applicable, commences a suit which results in a judgment
\nagainst the other party for the fee set forth in this Section 8.2, such
\ndefaulting party shall pay to the prevailing party its costs and expenses
\n(including reasonable attorneys’ fees and expenses) in connection with such
\nsuit, together with interest on the amount of the fee at the prime rate of
\nCitibank, N.A. in effect on the date such payment was required to be made.<\/p>\n
Section 8.3 Amendment. This Agreement may be amended by the parties hereto
\n ———
\nby action taken by or on behalf of their respective Boards of Directors at any
\ntime prior to the Effective Time; provided, however, that, after approval of the
\nMerger by the shareholders of the Company, no amendment may be made without
\nfurther shareholder approval which, by Law or in accordance with the rules of
\nNasdaq, requires further approval by such shareholders. This Agreement may not
\nbe amended except by an instrument in writing signed by the parties hereto.<\/p>\n
Section 8.4 Waiver. At any time prior to the Effective Time, any party
\n ——
\nhereto may (a) extend the time for the performance of any of the obligations or
\nother acts of the other party hereto, (b) waive any inaccuracies in the
\nrepresentations and warranties of the other party contained herein or in any
\ndocument delivered pursuant hereto, and (c) waive compliance by the other party
\nwith any of the agreements or conditions contained herein; provided, however,
\nthat after any approval of the transactions contemplated by this Agreement by
\nthe shareholders of the Company, there may not be, without further approval of
\nsuch shareholders, any extension or waiver of this Agreement or any portion
\nthereof which, by Law or in accordance with the rules of Nasdaq, requires
\nfurther approval by such shareholders. Any such extension or waiver shall be
\nvalid only if set forth in an instrument in writing signed by the party or
\nparties to be bound thereby, but such extension or waiver or failure to insist
\non strict compliance with an obligation, covenant, agreement or condition shall
\nnot operate as a waiver of, or estoppel with respect to, any subsequent or other
\nfailure.<\/p>\n
Section 8.5 Fees and Expenses. Subject to Sections 8.2(a), 8.2(b), 8.2(c)
\n —————–
\nand 8.2(g), all expenses incurred by the parties hereto shall be borne solely
\nand entirely by the party which has incurred the same; provided, however, that
\neach of Parent and the Company shall pay one-half of the expenses related to
\nprinting, filing and mailing the Registration Statement and the Proxy Statement
\nand all SEC and other regulatory filing fees incurred in connection with the
\nRegistration Statement and the Proxy Statement.<\/p>\n
ARTICLE 9.
\n GENERAL PROVISIONS<\/p>\n
Section 9.1 Non-Survival of Representations and Warranties. None of the
\n ———————————————-
\nrepresentations and warranties in this Agreement or in any instrument delivered
\npursuant to this Agreement shall survive the Effective Time. This Section 9.1
\nshall not limit any covenant or agreement of the parties which by its terms
\ncontemplates performance after the Effective Time.<\/p>\n
Section 9.2 Notices. Any notices or other communications required or
\n ——-
\npermitted under, or otherwise in connection with this Agreement shall be in
\nwriting and shall be<\/p>\n
50<\/p>\n
deemed to have been duly given when delivered in person or upon confirmation of
\nreceipt when transmitted by facsimile transmission (but only if followed by
\ntransmittal by national overnight courier or hand for delivery on the next
\nBusiness Day) or on receipt after dispatch by registered or certified mail,
\npostage prepaid, addressed, or on the next Business Day if transmitted by
\nnational overnight courier, in each case as follows:<\/p>\n
(a) If to Parent or Merger Sub, addressed to it at:<\/p>\n
Amgen Inc.
\n One Amgen Center Drive
\n Thousand Oaks, CA 91320
\n Fax: (805) 499-3540
\n Attn: Chief Executive Officer<\/p>\n
with a copy to:<\/p>\n
Latham & Watkins
\n 885 Third Avenue, Suite 1000
\n New York, NY 10022-4802
\n Fax: (212) 751-4864
\n Attn: Charles Nathan<\/p>\n
and<\/p>\n
Latham & Watkins
\n 633 West Fifth Street, Suite 4000
\n Los Angeles, CA 90071-2007
\n Fax: (213) 891-8763
\n Attn: Gary Olson
\n Paul D. Tosetti
\n Charles K. Ruck<\/p>\n
(b) If to the Company, addressed to it at:<\/p>\n
Immunex Corporation
\n 51 University Street
\n Seattle, Washington 98101
\n Fax: (206) 467-0368
\n Attn: Chief Executive Officer<\/p>\n
with a copy to:<\/p>\n
Skadden, Arps, Slate, Meagher & Flom LLP
\n Four Times Square
\n New York, NY 10036
\n Fax: (212) 735-2000
\n Attn: Roger Aaron<\/p>\n
51<\/p>\n
Stephen Arcano<\/p>\n
Section 9.3 Certain Definitions. For purposes of this Agreement,
\n ——————-
\nthe term:<\/p>\n
“Accelerated Company Option” shall mean a Company Option with
\n ————————–
\na per share exercise price which is equal to or less than the greater of (i)
\n$40.00 or (ii) the closing sales price for a share of Company Common Stock (or
\nthe closing bid, if no sales were reported) as quoted on Nasdaq for the last
\nmarket trading day immediately preceding the Effective Time, as reported in The
\nWall Street Journal.<\/p>\n
“Acquisition Proposal” means any offer or proposal concerning any (a)
\n ——————-
\nmerger, consolidation, business combination, or similar transaction involving
\nthe Company or any Significant Subsidiary of the Company pursuant to which the
\nshareholders of the Company immediately prior to such transaction would own less
\nthan 80% of any class of equity securities of the entity surviving or resulting
\nfrom such transaction (or the ultimate parent entity thereof), (b) sale or other
\ndisposition directly or indirectly of assets of the Company or the Company
\nSubsidiaries representing 20% or more of the consolidated assets of the Company
\nand the Company Subsidiaries, (c) issuance, sale, or other disposition of
\nsecurities (or options, rights or warrants to purchase, or securities
\nconvertible into or exchangeable for, such securities) in each case by the
\nCompany representing 20% or more of the voting power of the Company or (d)
\ntransaction in which any person shall acquire beneficial ownership, or the right
\nto acquire beneficial ownership or any group shall have been formed which
\nbeneficially owns or has the right to acquire beneficial ownership of, 20% or
\nmore of the outstanding voting capital stock of the Company (other than the
\nMerger).<\/p>\n
“Affiliate” of a specified person means a person that directly or
\n ———
\nindirectly, through one or more intermediaries, controls, is controlled by, or
\nis under common control with, the person specified.<\/p>\n
“beneficial ownership” (and related terms such as “beneficially owned” or
\n ——————–
\n“beneficial owner”) has the meaning set forth in Rule 13d-3 under the Exchange
\nAct.<\/p>\n
“Blue Sky Laws” means state securities or “blue sky” Laws.
\n ————-<\/p>\n
“Business Day” means any day on which banks are not required or authorized
\n ————
\nto close in the City of New York.<\/p>\n
“Cancelled Company Option” shall mean a Company Option with a per share
\n ————————
\nexercise price which exceeds the greater of (i) $40.00 or (ii) the closing sales
\nprice for a share of Company Common Stock (or the closing bid, if no sales were
\nreported) as quoted on Nasdaq for the last market trading day immediately
\npreceding the Effective Time, as reported in The Wall Street Journal.<\/p>\n
“CERCLA” means the Comprehensive Environmental Response, Compensation and
\n ——
\nLiability Act of 1980, as amended as of the date hereof.<\/p>\n
“Company Intellectual Property” means all intellectual property or other
\n —————————–
\nproprietary rights of every kind, foreign or domestic, including all patents,
\npatent applications,<\/p>\n
52<\/p>\n
inventions (whether or not patentable), processes, products, technologies,
\ndiscoveries, copyrightable and copyrighted works, apparatus, trade secrets,
\ntrademarks, trademark registrations and applications, domain names, service
\nmarks, service mark registrations and applications, trade names, trade secrets,
\nknow-how, trade dress, copyright registrations, customer lists, confidential
\nmarketing and customer information, licenses, confidential technical
\ninformation, software, and all documentation thereof, in each case, used in the
\nbusiness of the Company as of the date of this Agreement or the Closing Date.<\/p>\n
“Company Material Adverse Effect” means any change affecting, or condition
\n ——————————-
\nhaving an effect on, the Company or any Company Subsidiary that is, or would
\nreasonably be expected to be, materially adverse to the business, financial
\ncondition or results of operations of the Company and the Company Subsidiaries,
\ntaken as a whole, except, in each case, for any such change or condition
\nresulting from or arising out of (i) changes or developments in the
\nbiotechnology industry generally, which changes or developments do not
\ndisproportionately affect the Company relative to other participants in the
\nbiotechnology industry in any material respect, (ii) changes or developments in
\nfinancial or securities markets or the economy in general which changes do not
\ndisproportionately affect the Company in any material respect, (iii) any change
\nin the Company’s stock price or trading volume, in and of itself or (iv) the
\nannouncement of the transactions contemplated by this Agreement.<\/p>\n
“Company Option” means any option or warrant to purchase Company Common
\n ————–
\nStock.<\/p>\n
“Company Stock Option Plan” means the Immunex Corporation 1993 Stock Option
\n ————————-
\nPlan, as Amended and Restated on April 25, 2000, the Immunex Corporation 1999
\nStock Option Plan, as Amended and Restated on April 25, 2000, the Stock Option
\nGrant Program for Nonemployee Directors under the Immunex Corporation Amended
\nand Restated 1999 Stock Option Plan, the Immunex Corporation Stock Option Plan
\nfor Nonemployee Directors, as Amended and Restated on April 18, 2000, and in
\neach case, the addendums thereto, or any other plan, agreement or arrangement
\npursuant to which Company Options have been issued as of the Effective Time,
\nother than the ESPP.<\/p>\n
“Competing Transaction” means any (a) merger, consolidation, business
\n ———————
\ncombination, or similar transaction involving the Company or any Significant
\nSubsidiary of the Company pursuant to which the shareholders of the Company
\nimmediately prior to such transaction would own less than 70% of any class of
\nequity securities of the entity surviving or resulting from such transaction (or
\nthe ultimate parent entity thereof), (b) sale or other disposition directly or
\nindirectly of assets of the Company or the Company Subsidiaries representing 30%
\nor more of the consolidated assets of the Company and the Company Subsidiaries,
\n(c) issuance, sale, or other disposition of securities (or options, rights or
\nwarrants to purchase, or securities convertible into or exchangeable for, such
\nsecurities) in each case by the Company to any person or “group” (as defined in
\nRule 13d-5(b)(1) under the Exchange Act) representing 30% or more of the voting
\npower of the Company or (d) transaction in which any person shall acquire
\nbeneficial ownership, or the right to acquire beneficial ownership or any group
\nshall have been formed which beneficially owns or has the right to acquire
\nbeneficial ownership of, 30% or more of the outstanding voting capital stock of
\nthe Company (other than any shares beneficially owned by AHP or its
\nSubsidiaries).<\/p>\n
53<\/p>\n
“Contracts” means any of the agreements, contracts, leases, powers of
\n ———
\nattorney, notes, loans, evidence of indebtedness, purchase orders, letters of
\ncredit, settlement agreements, franchise agreements, undertakings, covenants not
\nto compete, employment agreements, licenses, instruments, obligations,
\ncommitments, understandings, policies, purchase and sales orders, quotations and
\nother executory commitments to which any company is a party or to which any of
\nthe assets of the companies are subject, whether oral or written, express or
\nimplied.<\/p>\n
“control” (including the terms “controlled by” and “under common control
\n ——-
\nwith”) means the possession, directly or indirectly or as trustee or executor,
\nof the power to direct or cause the direction of the management or policies of a
\nperson, whether through the ownership of securities or as trustee or executor,
\nby Contract or credit arrangement or otherwise.<\/p>\n
“delivered” or “made available” (or words of similar import) shall include,
\n —————————–
\nwithout limitation, all documents and materials made available in the Company’s
\ndata rooms in Los Angeles, California or New York, New York or Parent’s data
\nrooms in Los Angeles, California or New York, New York, as the case may be.<\/p>\n
“Environmental Laws” means any federal, state, local or
\n ——————
\nforeign statute, Law, ordinance, regulation, rule, code, treaty, writ or order
\nand any enforceable judicial or administrative interpretation thereof, including
\nany judicial or administrative order, consent decree, judgment, stipulation,
\ninjunction, permit, authorization, policy, opinion, or agency requirement, in
\neach case having the force and effect of Law, relating to the pollution,
\nprotection, investigation or restoration of the environment, health and safety
\nas affected by the environment or natural resources, including, without
\nlimitation, those relating to the use, handling, presence, transportation,
\ntreatment, storage, disposal, release, threatened release or discharge of
\nHazardous Materials or noise, odor, wetlands, pollution or contamination.<\/p>\n
“Environmental Permits” means any permit, approval, identification number,
\n ———————
\nlicense and other authorization required under any applicable Environmental Law.<\/p>\n
“Equity Interest” means any share, capital stock, partnership, member or
\n —————
\nsimilar interest in any entity, and any option, warrant, right or security
\n(including debt securities) convertible, exchangeable or exercisable therefor.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974, as
\n —–
\namended, and the regulations promulgated thereunder.<\/p>\n
“ERISA Affiliate” means any entity or trade or business (whether or not
\n —————
\nincorporated) other than the Company that together with the Company is
\nconsidered under common control and treated as a single employer under Section
\n4.14(b), (c), (m) or (o) of the Code.<\/p>\n
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and
\n ————
\nthe rules and regulations promulgated thereunder.<\/p>\n
“Expenses” includes all reasonable out-of-pocket expenses (including,
\n ——–
\nwithout limitation, all reasonable fees and expenses of counsel, accountants,
\ninvestment bankers, experts and consultants to a party hereto and its
\nAffiliates) incurred by a party or on its behalf in<\/p>\n
54<\/p>\n
connection with or related to the authorization, preparation, negotiation,
\nexecution and performance of this Agreement and the transactions contemplated
\nhereby, including the preparation, printing, filing and mailing of the
\nRegistration Statement and Proxy Statement, as applicable, and the solicitation
\nof shareholder approvals and all other matters related to the transactions
\ncontemplated hereto.<\/p>\n
“GAAP” means generally accepted accounting principles as applied in the
\n —-
\nUnited States.<\/p>\n
“Governance Agreement” means that certain Amended and Restated Governance
\n ——————–
\nAgreement dated as of December 15, 1992 among American Cyanamid Company, Lederle
\nOncology Corporation and the Company, as amended by Amendment No. 1 to the
\nAmended and Restated Governance Agreement dated May 20, 1999 between American
\nCyanamid Company and the Company and Amendment No. 2 to Amended and Restated
\nGovernance Agreement dated August 9, 2000 between American Cyanamid Company and
\nthe Company.<\/p>\n
“Governmental Entity” means domestic or foreign governmental,
\n ——————-
\nadministrative, judicial or regulatory authority.<\/p>\n
“group” is defined as in the Exchange Act, except where the context
\n —–
\notherwise requires.<\/p>\n
“Hazardous Materials” means (A) any petroleum, petroleum products,
\n ——————-
\nbyproducts or breakdown products, radioactive materials, asbestos-containing
\nmaterials or polychlorinated biphenyls or (B) any chemical, material or other
\nsubstance defined or regulated as toxic or hazardous or as a pollutant or
\ncontaminant or waste under any applicable Environmental Law.<\/p>\n
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
\n ——-
\nas amended, and the rules and regulations thereunder.<\/p>\n
“Intellectual Property” means intellectual property or other proprietary
\n ———————
\nrights of every kind, foreign or domestic, including all patents, patent
\napplications, inventions (whether or not patentable), processes, products,
\ntechnologies, discoveries, copyrightable and copyrighted works, apparatus, trade
\nsecrets, trademarks, trademark registrations and applications, domain names,
\nservice marks, service mark registrations and applications, trade names, trade
\nsecrets, know-how, trade dress, copyright registrations, customer lists,
\nconfidential marketing and customer information, licenses, confidential
\ntechnical information, software, and all documentation thereof.<\/p>\n
“Knowledge” of any person which is not an individual means, with respect to
\n ———
\nany specific matter, the actual knowledge of such person’s executive officers
\nand any other officer having primary responsibility for such matter.<\/p>\n
“Law” means foreign or domestic law, statute, code, ordinance, rule,
\n —
\nregulation, order, judgment, writ, stipulation, award, injunction, decree or
\narbitration award or finding.<\/p>\n
“Liens” means any mortgage, pledge, lien, security interest, conditional or
\n —–
\ninstallment sale agreement, encumbrance, charge or other claims of third parties
\nof any kind.<\/p>\n
55<\/p>\n
“Nasdaq” means the Nasdaq Stock Market.
\n ——<\/p>\n
“Parent Certificate” means Parent’s Restated Certificate of Incorporation,
\n ——————
\nas amended through the date of this Agreement.<\/p>\n
“Parent Intellectual Property” means all intellectual property or other
\n —————————-
\nproprietary rights of every kind, foreign or domestic, including all patents,
\npatent applications, inventions (whether or not patentable), processes,
\nproducts, technologies, discoveries, copyrightable and copyrighted works,
\napparatus, trade secrets, trademarks, trademark registrations and applications,
\ndomain names, service marks, service mark registrations and applications, trade
\nnames, trade secrets, know-how, trade dress, copyright registrations, customer
\nlists, confidential marketing and customer information, licenses, confidential
\ntechnical information, software, and all documentation thereof, in each case,
\nused in the business of Parent as of the date of this Agreement or the Closing
\nDate.<\/p>\n
“Parent Material Adverse Effect” means any change affecting,
\n ——————————
\nor condition having an effect on, Parent, Merger Sub or any of Parent’s
\nSubsidiaries that is, or would reasonably be expected to be, materially adverse
\nto the business, financial condition or results of operations of Parent and its
\nSubsidiaries, taken as a whole, except, in each case, for any such change or
\ncondition resulting from or arising out of (i) changes or developments in the
\nbiotechnology industry generally, which changes or developments do not
\ndisproportionately affect Parent relative to other participants in the
\nbiotechnology industry in any material respect, (ii) changes or developments in
\nfinancial or securities markets or the economy in general which changes do not
\ndisproportionately affect Parent in any material respect, (iii) any change in
\nParent’s stock price or trading volume, in and of itself or (iv) the
\nannouncement of the transactions contemplated by this Agreement.<\/p>\n
“PBGC” means the Pension Benefit Guaranty Corporation.
\n —-<\/p>\n
“Permitted Liens” means (a) Liens for Taxes, assessments or similar charges
\n —————
\nincurred in the ordinary course of business consistent with past practice that
\nare not yet due and payable or are being contested in good faith; (b) pledges or
\ndeposits made in the ordinary course of business consistent with past practice;
\n(c) Liens of mechanics, materialmen, warehousemen or other like Liens securing
\nobligations incurred in the ordinary course of business consistent with past
\npractice that are not yet due and payable or are being contested in good faith;
\nand (iv) similar Liens and encumbrances which are incurred in the ordinary
\ncourse of business consistent with past practice and which do not in the
\naggregate materially detract from the value of such assets or properties or
\nmaterially impair the use thereof in the operation of such business.<\/p>\n
“person” means an individual, corporation, limited liability company,
\n ——
\npartnership, association, trust, unincorporated organization, other entity or
\ngroup.<\/p>\n
“SEC” means the United States Securities and Exchange Commission.
\n —<\/p>\n
“Securities Act” means the Securities Act of 1933, as amended, and the
\n ————–
\nrules and regulations promulgated thereunder.<\/p>\n
56<\/p>\n
“Share Issuance” means the issuance of Parent Common Stock pursuant to
\n ————–
\nSection 2.1(a).<\/p>\n
“Significant Subsidiary” has the meaning set forth in Rule 1-02 of
\n ———————-
\nRegulation S-X.<\/p>\n
“Subsidiary” or “Subsidiaries” of any person or any other person means any
\n ———- ————
\ncorporation, partnership, joint venture or other legal entity of which such
\nperson, as the case may be (either alone or through or together with any other
\nsubsidiary), owns, directly or indirectly, a majority of the stock or other
\nequity interests the holders of which are generally entitled to vote for the
\nelection of the Board of Directors or other governing body of such corporation
\nor other legal entity.<\/p>\n
“Superior Proposal” means any bona fide offer or proposal (on its most
\n —————–
\nrecently amended or modified terms, if amended or modified) made by a person
\nother than Parent or Merger Sub that (1) concerns any (a) merger, tender offer,
\nexchange offer, business combination or similar transaction involving the
\nCompany or any Subsidiary of the Company pursuant to which (i) shareholders of
\nthe Company immediately prior to such transaction would own less than 50% of the
\nvoting power of the entity surviving or resulting from such transaction (or the
\nultimate parent entity thereof) and (ii) shareholders of the Company other than
\nAHP would own less than 30% of the voting power of the entity surviving or
\nresulting from such transaction (or the ultimate parent entity thereof) or (b)
\nsale or other disposition directly or indirectly of assets of the Company or the
\nCompany Subsidiaries representing 67% or more of the consolidated assets of the
\nCompany and the Company Subsidiaries, (2) is on terms which the Board of
\nDirectors of the Company in good faith concludes (following receipt of the
\nadvice of its financial advisors and outside counsel) are more favorable to the
\nCompany’s shareholders (in their capacities as shareholders) than the
\ntransactions contemplated by this Agreement (including any revisions hereto),
\nand (3) is, in the good faith judgment of the Company, reasonably likely to be
\ncompleted and financed.<\/p>\n
“Taxes” means all taxes of any kind, including, without limitation, those
\n —–
\non or measured by or referred to as income, gross receipts, sales, use, ad
\nvalorem, franchise, profits, license, withholding, payroll, employment, excise,
\nseverance, stamp, occupation, premium, value added, property or windfall profits
\ntaxes, customs, duties or similar fees, assessments or charges of any kind
\nwhatsoever, together with any interest and any penalties, additions to tax or
\nadditional amounts imposed by any Governmental Entity.<\/p>\n
“Tax Returns” means any report, return (including information return),
\n ———–
\nclaim for refund, or statement relating to Taxes, including any schedule or
\nattachment thereto, and including any amendments thereof.<\/p>\n
“Treasury Regulations” means the United States Treasury regulations
\n ——————–
\npromulgated under the Code.<\/p>\n
57<\/p>\n
Section 9.4 Terms Defined Elsewhere. The following terms are defined
\n ———————–
\nelsewhere in this Agreement, as indicated below:<\/p>\n
“Agreement” Preamble<\/p>\n
“AHP” Recitals<\/p>\n
“AHP Agreements” Section 2.7<\/p>\n
“Articles of Merger” Section 1.2<\/p>\n
“Cash Consideration” Section 2.1(a)<\/p>\n
“Certificates” Section 2.2(b)<\/p>\n
“Change of Recommendation” Section 6.4(e)<\/p>\n
“Closing” Section 1.2<\/p>\n
“Closing Date” Section 1.2<\/p>\n
“Code” Recitals<\/p>\n
“Common Stock Consideration” Section 2.1(a)<\/p>\n
“Company” Preamble<\/p>\n
“Company Articles” Section 3.2<\/p>\n
“Company Benefit Plan” Section 3.9(a)<\/p>\n
“Company Bylaws” Section 3.2<\/p>\n
“Company Common Stock” Section 2.1(a)<\/p>\n
“Company Disclosure Letter” Article 3<\/p>\n
“Company Financial Advisor” Section 3.20<\/p>\n
“Company Form 10-K” Section 3.7(c)<\/p>\n
“Company Material Contract” Section 3.12<\/p>\n
“Company Pharmaceutical Products” Section 3.19(a)<\/p>\n
“Company Permits” Section 3.6<\/p>\n
“Company Preferred Stock” Section 3.3(a)<\/p>\n
58<\/p>\n
“Company Recommendation” Section 6.2(c)<\/p>\n
“Company SEC Filings” Section 3.7(a)<\/p>\n
“Company Shareholder Approval” Section 3.21<\/p>\n
“Company Shareholders’ Meeting” Section 6.2(a)<\/p>\n
“Company Subsidiaries” Section 3.1<\/p>\n
“Confidentiality Agreement” Section 6.3(b)<\/p>\n
“D&O Insurance” Section 6.10(b)<\/p>\n
“Director Plans” Section 2.4<\/p>\n
“Dissenting Share” Section 2.1(e)<\/p>\n
“Effective Time” Section 1.2<\/p>\n
“employee benefit plan” Section 3.9(a)<\/p>\n
“ESPP” Section 2.5<\/p>\n
“Excess Shares” Section 2.2(e)(i)<\/p>\n
“Exchange Agent” Section 2.2(a)<\/p>\n
“Exchange Fund” Section 2.2(a)<\/p>\n
“Exchange Ratio” Section 2.1(a)<\/p>\n
“FDA” Section 3.6<\/p>\n
“FDCA” Section 3.6<\/p>\n
“Forward Subsidiary Merger” Section 6.15<\/p>\n
“IRS” Section 3.9(a)<\/p>\n
“Joint Proxy\/Prospectus” Section 6.1(a)<\/p>\n
“Litigation Conditions” Section 8.1(b)<\/p>\n
“Merger” Recitals<\/p>\n
“Merger Consideration” Section 2.1(a)<\/p>\n
“Merger Sub” Preamble<\/p>\n
59<\/p>\n
“multiemployer plan” Section 3.9(d)<\/p>\n
“New Parent Employees” Section 6.9(a)<\/p>\n
“Option Exchange Ratio” Section 2.4(a)<\/p>\n
“Outside Date” Section 8.1(b)<\/p>\n
“Parent” Preamble<\/p>\n
“Parent Benefit Plans” Section 6.9(b)<\/p>\n
“Parent Bylaws” Section 4.2<\/p>\n
“Parent Common Stock” Section 2.1(a)<\/p>\n
“Parent Disclosure Letter” Article 4.<\/p>\n
“Parent Financial Advisor” Section 4.14<\/p>\n
“Parent Form 10-K” Section 4.7(c)<\/p>\n
“Parent Permits” Section 4.6<\/p>\n
“Parent Pharmaceutical Products” Section 4.12(a)<\/p>\n
“Parent Preferred Stock” Section 4.3(a)<\/p>\n
“Parent Recommendation” Section 6.2(d)<\/p>\n
“Parent SEC Filings” Section 4.7(a)<\/p>\n
“Parent Stockholder Approval” Section 4.15<\/p>\n
“Parent Stockholders’ Meeting” Section 6.2(b)<\/p>\n
“Parent Subsidiaries” Section 4.1<\/p>\n
“Product Rights Agreement” Section 3.15<\/p>\n
“Registration Statement” Section 6.1(a)<\/p>\n
“Proxy Statement” Section 6.1(a)<\/p>\n
“Replacement Option” Section 2.4(b)<\/p>\n
“Representatives” Section 6.3(a)<\/p>\n
“Rights Plan” Section 2.1(f)<\/p>\n
60<\/p>\n
“Section 16” Section 6.13<\/p>\n
“Superior Proposal Notice” Section 6.4(c)<\/p>\n
“Surviving Corporation” Section 1.1<\/p>\n
“Voting Agreement” Recitals<\/p>\n
“WBCA” Recitals<\/p>\n
Section 9.5 Headings. The headings contained in this Agreement are for
\n ——–
\nreference purposes only and shall not affect in any way the meaning or
\ninterpretation of this Agreement.<\/p>\n
Section 9.6 Severability. If any term or other provision of this
\n ————
\nAgreement is invalid, illegal or incapable of being enforced by any rule of Law
\nor public policy, all other conditions and provisions of this Agreement shall
\nnevertheless remain in full force and effect so long as the economic or legal
\nsubstance of the transactions contemplated hereby is not affected in any manner
\nmaterially adverse to any party. Upon such determination that any term or other
\nprovision is invalid, illegal or incapable of being enforced, the parties hereto
\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 to
\nthe end that transactions contemplated hereby are fulfilled to the extent
\npossible.<\/p>\n
Section 9.7 Entire Agreement. This Agreement (together with the Exhibits,
\n —————-
\nParent and Company Disclosure Letters and the other documents delivered pursuant
\nhereto) and the Confidentiality Agreement constitute the entire agreement of the
\nparties and supersede all prior agreements and undertakings, both written and
\noral, between the parties, or any of them, with respect to the subject matter
\nhereof.<\/p>\n
Section 9.8 Assignment. Neither this Agreement nor any of the rights,
\n ———-
\ninterests or obligations hereunder shall be assigned by any of the parties
\nhereto, in whole or in part (whether by operation of Law or otherwise), without
\nthe prior written consent of the other parties, and any attempt to make any such
\nassignment without such consent shall be null and void, except that Merger Sub
\nmay assign, in its sole discretion, any or all of its rights, interests and
\nobligations under this Agreement to any direct wholly-owned Subsidiary of Parent
\nwithout the consent of the Company.<\/p>\n
Section 9.9 Parties in Interest. This Agreement shall be binding upon and
\n ——————-
\ninure solely to the benefit of each party hereto and their respective successors
\nand assigns, and nothing in this Agreement, express or implied, other than
\npursuant to Section 6.11, is intended to or shall confer upon any other person
\nany right, benefit or remedy of any nature whatsoever under or by reason of this
\nAgreement.<\/p>\n
Section 9.10 Mutual Drafting. Each party hereto has participated in the
\n —————
\ndrafting of this Agreement, which each party acknowledges is the result of
\nextensive negotiations between the parties.<\/p>\n
61<\/p>\n
Section 9.11 Governing Law; Consent to Jurisdiction; Waiver of Trial by
\n ———————————————————-
\nJury.
\n—-<\/p>\n
(a) This Agreement and the transactions contemplated hereby, and all
\ndisputes between the parties under or related to the Agreement or the facts and
\ncircumstances leading to its execution, whether in Contract, tort or otherwise,
\nshall be governed by and construed in accordance with the Laws of the State of
\nDelaware, applicable to contracts executed in and to be performed entirely
\nwithin the State, except that the provisions of the WBCA shall govern the
\nMerger.<\/p>\n
(b) Each of the parties hereto hereby irrevocably and unconditionally
\nsubmits, for itself and its property, to the exclusive jurisdiction of any
\nDelaware State court, or Federal court of the United States of America, sitting
\nin Delaware, and any appellate court from any thereof, in any action or
\nproceeding arising out of or relating to this Agreement or the agreements
\ndelivered in connection herewith or the transactions contemplated hereby or
\nthereby or for recognition or enforcement of any judgment relating thereto, and
\neach of the parties hereby irrevocably and unconditionally (a) agrees not to
\ncommence any such action or proceeding except in such courts, (b) agrees that
\nany claim in respect of any such action or proceeding may be heard and
\ndetermined in such Delaware State court or, to the extent permitted by Law, in
\nsuch Federal court, (c) waives, to the fullest extent it may legally and
\neffectively do so, any objection which it may now or hereafter have to the
\nlaying of venue of any such action or proceeding in any such Delaware State or
\nFederal court, and (d) waives, to the fullest extent permitted by Law, the
\ndefense of an inconvenient forum to the maintenance of such action or proceeding
\nin any such Delaware State or Federal court. Each of the parties hereto agrees
\nthat a final judgment in any such action or proceeding shall be conclusive and
\nmay be enforced in other jurisdictions by suit on the judgment or in any other
\nmanner provided by Law. Each party to this Agreement irrevocably consents to
\nservice of process in the manner provided for notices in Section 9.2. Nothing in
\nthis Agreement shall affect the right of any party to this Agreement to serve
\nprocess in any other manner permitted by Law.<\/p>\n
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
\nUNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
\nTHEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE
\nTO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
\nOUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN
\nCONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH
\nPARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY
\nOF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
\nPARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH
\nWAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS,
\n(C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO
\nTHIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
\nTHIS SECTION 9.11(c).<\/p>\n
62<\/p>\n
Section 9.12 Specific Performance. The parties hereto agree that
\n ——————–
\nirreparable damage would occur in the event any of the provisions of this
\nAgreement were not to be performed in accordance with the terms hereof and that
\nthe parties shall be entitled to specific performance of the terms hereof in
\naddition to any other remedies at Law or in equity.<\/p>\n
Section 9.13 Disclosure. Any matter disclosed in any section of a party’s
\n ———-
\nDisclosure Letter shall be considered disclosed for other sections of such
\nDisclosure Letter, but only to the extent such matter on its face would
\nreasonably be expected to be pertinent to a particular section of a party’s
\nDisclosure Letter in light of the disclosure made in such section. The provision
\nof monetary or other quantitative thresholds for disclosure does not and shall
\nnot be deemed to create or imply a standard of materiality hereunder.<\/p>\n
Section 9.14 Counterparts. This Agreement may be executed in one or more
\n ————
\ncounterparts, and by the different parties hereto in separate counterparts, each
\nof which when executed shall be deemed to be an original but all of which taken
\ntogether shall constitute one and the same agreement.<\/p>\n
[Signature page follows]<\/p>\n
63<\/p>\n
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
\nAgreement to be executed as of the date first written above by their respective
\nofficers thereunto duly authorized.<\/p>\n
AMGEN INC.
\n a Delaware corporation<\/p>\n
By: \/s\/ Kevin W. Sharer
\n ————————————-
\n Name: Kevin W. Sharer
\n Title: Chairman of the Board, CEO and President<\/p>\n
AMS ACQUISITION INC.
\n a Washington corporation<\/p>\n
By: \/s\/ Kevin W. Sharer
\n ————————————-
\n Name: Kevin W. Sharer
\n Title: Chairman of the Board, CEO and President<\/p>\n
IMMUNEX CORPORATION
\n a Washington corporation<\/p>\n
By: \/s\/ Edward V. Fritzky
\n ————————————-
\n Name: Edward V. Fritzky
\n Title: Chairman, Chief Executive Officer and
\n President<\/p>\n
[SIGNATURE PAGE — AGREEMENT AND PLAN OF MERGER]<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6691,7837],"corporate_contracts_industries":[9405],"corporate_contracts_types":[9622,9626],"class_list":["post-43010","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-amgen-inc","corporate_contracts_companies-immunex-corp","corporate_contracts_industries-drugs__biotech","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43010","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43010"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43010"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43010"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43010"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}