EXHIBIT 99
OBLIGATIONS OF ZENECA PLC REGARDING PUT
Section 1.10 of the Merger Agreement requires Zeneca to, or to cause one or
more of its affiliates to, pay to the Company immediately prior to the time
that such amounts become due and payable all amounts, if any, that, assuming
that such payments could be made without violating Section 160 of the Delaware
Law, any bankruptcy or insolvency law or other law or regulation for the
protection of creditors, will be due and payable to the holders of the Special
Common Stock pursuant to the Put feature of the Special Common Stock. In
exchange for such payment, the Company will issue to Zeneca (or to its
designated affiliates) a number of shares of Common Stock equal to the number
of shares of the Special Common Stock acquired thereby by the Company. Section
160 of the Delaware Law provides that a Delaware corporation may not purchase
any shares of its capital stock when the capital of the corporation is impaired
or when such purchase would cause any impairment of the capital of the
corporation. The maximum amount Zeneca is obligated to pay to the Company is
the product of the Put Price multiplied by the total number of shares of the
Special Common Stock with respect to which the Put is exercised. If the Company
consummates the purchase of the Special Common Stock in contravention of
Section 160 of the Delaware Law or any other law for the protection of
creditors, Zeneca will indemnify and hold harmless the directors of the Company
against any liabilities arising out of such purchase. If Zeneca or the Company
determines that the Company may be unable to consummate the purchase of all of
the Special Common Stock at the Put Price per share in accordance with the
Certificate of Incorporation or the Company is unable to pay the Put Price with
respect to all such shares in accordance with the Certificate of Incorporation,
in either case, without violating Section 160 of the Delaware Law, any
bankruptcy or insolvency law or other law or regulation for the protection of
creditors, then the obligation of Zeneca to pay, or cause one or more of its
affiliates to pay, the amounts set forth above will terminate. In lieu thereof,
Zeneca will (or will cause one of its affiliates to) purchase, and make all
arrangements necessary to purchase, during the Put Period, directly from the
holders of the Special Common Stock at the Put Price, the Special Common Stock
which such holders elect or have elected to require the Company to purchase. As
permitted under the Merger Agreement, Zeneca has assigned to Zeneca PLC all of
the obligations of Zeneca to purchase Special Common Stock described in the
preceding sentence. The holders of the Special Common Stock will have the right
to enforce against Zeneca PLC the obligation of Zeneca (or its affiliates) to
pay the amounts set forth above.
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DESCRIPTION OF THE SPECIAL COMMON STOCK
In the Merger, each outstanding Share will be converted into the right to
receive $18.875 in cash and, although no fractional shares will be issued, one-
half share of Special Common Stock. Pursuant to the Merger Agreement and
effective upon consummation of the Merger, the Company's certificate of
incorporation will be amended by operation of the Merger to, among other
things, authorize the issuance of the Special Common Stock and establish the
terms thereof. Under Article FOURTH of the Certificate of Incorporation
("Article
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Fourth"), effective upon the Merger, the preferences, rights and
qualifications, limitations, and restrictions of the Special Common Stock and
the Common Stock will be identical in all respects, except as specifically set
forth in Article Fourth and except for the right of each class to elect five
directors as provided in Article FIFTH of the Certificate of Incorporation. Set
forth below is a description of the terms of the Special Common Stock,
including the differences between such terms and the terms of the Common Stock
as set forth in Article Fourth. The following description of the terms of the
Special Common Stock does not purport to be complete and is qualified in its
entirety by reference to the text of the Certificate of Incorporation which is
attached to this Proxy Statement as Annex B and is incorporated herein by
reference.
AUTHORIZED SHARES
The Company's certificate of incorporation currently provides for authorized
capital of 30,000,000 shares, consisting of 25,000,000 shares of Common Stock,
$.001 par value per share, and 5,000,000 shares of Preferred Stock, $.001 par
value per share. By operation of the Merger, Article Fourth of the Certificate
of Incorporation will provide for authorized capital of 27,500,000 shares, of
which 15,000,000 shares will be designated Common Stock, 7,500,000 shares will
be designated Callable Puttable Common Stock and 5,000,000 shares will be
designated Preferred Stock, each with a par value of $.001 per share. There are
no shares of the Preferred Stock presently issued or outstanding and there will
not be any shares thereof issued or outstanding immediately following the
Merger.
CALL AND PUT FEATURES OF THE SPECIAL COMMON STOCK
The Company has no right to redeem the Common Stock. The Company will not
have the right to call or redeem any shares of the Special Common Stock and
will not purchase or otherwise acquire for value any outstanding shares of the
Special Common Stock, except as provided in the Certificate of Incorporation.
Call. The Company will have the option (the "Call") to purchase, subject to
having available funds therefor as described herein, effective as of a date
(the "Call Date") fixed by the Company within a period commencing with the
Effective Time and ending on the close of business on the last day of the
forty-eighth month thereafter (the "Call Period"), at the applicable price per
share (the "Call Price"), all, but not less than all, of the outstanding shares
of Special Common Stock by (1) giving written notice of the exercise of the
Call (the "Call Notice") in accordance with the terms of the Certificate of
Incorporation at any time during the Call Period and (2) making the deposit
described below with a bank or trust company meeting certain criteria (the
"Depositary"), prior to the Call Date, with irrevocable instructions to the
Depositary to pay the Call Price for all shares of Special Common Stock
surrendered. The Call Notice will set forth, among other things, the Call Date
and instructions as to how to obtain the Call Price for the Special Common
Stock and will be accompanied by a letter of transmittal for use by a holder of
Special Common Stock in surrendering certificates for the Special Common Stock
and obtaining the Call Price therefor. The Call may only be exercised by the
Company upon the affirmative vote (or written consent) of a majority of the
holders of the shares of Common Stock, voting separately as a class; provided,
however, that, regardless of such vote, the Company will only exercise the Call
if the purchase of all of the shares of Special Common Stock pursuant to the
exercise of the Call would not be in violation of Section 160 of the Delaware
Law or any other law for the protection of creditors.
The Call Price is the market price of the Special Common Stock, subject,
during the first two years and seven months after the Effective Time, to a
minimum and maximum price therefor. The maximum price per share is $50.00. The
minimum price is $42.00 per share, discounted from the date which is two and
one-half years from the Effective Time at a rate which, when compounded on a
daily basis, is equal to four percent on an annualized basis if the Call is
made before two and one-half years from the Effective Time. By way of
illustration, assuming that the Company calls the Special Common Stock on the
date which is (a) 183 days after the Effective Time, the minimum Call Price
would be $38.77 per share, (b) 365 days after the Effective Time, the minimum
Call Price would be $39.55 per share, (c) 548 days (or approximately one and
one-half years) after the Effective Time, the minimum Call Price would be
$40.35 per share and (d) 730 days (or two years) after the Effective Time, the
minimum Call Price would be $41.17 per share.
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At least ten and no more than fifteen days prior to the Call Date (which
period may be extended if required under the Exchange Act or the regulations
promulgated thereunder), the Company will mail the Call Notice to each holder
of Special Common Stock at such holder's address as it appears on the transfer
books of the Company and to each holder of a Replacement Option at the address
for such holder set forth in the records of the Company. On the date of mailing
of the Call Notice, the Company will give a similar notice by publication in a
newspaper of general circulation in Los Angeles, California.
Put. Unless the Call has been previously exercised, during a period
commencing with the date which is the earlier of thirty calendar months from
the Effective Time or the date upon which there is a change in control (defined
as a transfer or other disposition of shares by Zeneca PLC or its affiliates or
the issuance of additional shares, the result of which is that Zeneca PLC or
its affiliates no longer own, directly or indirectly, more than fifty percent
of the outstanding shares of Common Stock or voting equity securities of the
Company) and ending on the close of business on the twentieth business day
after the date which is thirty calendar months from the Effective Time (or such
later date as may be required under the Exchange Act and the rules and
regulations promulgated thereunder) (the "Put Period"), each holder of the
Special Common Stock shall have the option (the "Put") to require the Company
to purchase all or a part of the shares of the Special Common Stock held by
such holder at a purchase price of $42.00 per share (the "Put Price"), subject
to having funds legally available therefor as described herein. If such funds
are not legally available to the Company as set forth in the Merger Agreement,
Zeneca PLC will assume the obligations of the Company with respect to the Put.
See "THE MERGER AGREEMENT--Obligations of Zeneca PLC Regarding Put." Holders
who desire to exercise their Put must deliver written notice thereof (the "Put
Notice") during the Put Period to the Company or the Depositary electing to
have shares of Special Common Stock purchased by the Company and specifying
therein the whole number of shares of Special Common Stock which such holder
has elected to cause the Company to purchase, together with a certificate or
certificates representing such shares. At least ten and not more than thirty
days prior to the beginning of the Put Period, the Company will mail a written
notice (the "Put Notification") to each holder of Special Common Stock at such
holder's address as it appears on the transfer books of the Company and to each
holder of an option to purchase shares of the Special Common Stock at the
address for such holder set forth in the records of the Company informing each
such holder of his, her or its right to exercise the Put, the date of the
commencement and termination of the Put Period, the Put Price, the identity and
address of the Depositary and instructions as to how to exercise their Put. A
notice similar to the Put Notification will be given by the Company by
publication in a newspaper of general circulation in Los Angeles, California at
least ten and not more than thirty days prior to the beginning of the Put
Period. If the Company fails to give the Put Notification to the holders of
Special Common Stock at least ten days prior to the beginning of the Put Period
as provided herein, the rights of the holders of the Special Common Stock will
not be prejudiced thereby and the Put will nevertheless become exercisable at
the beginning of the Put Period as herein provided but the expiration of the
Put Period will be extended to that date which is twenty-five business days
from the date the Put Notification is given to holders of the Special Common
Stock.
Surrender and Payment. Prior to the date the Company gives the Put
Notification (or prior to the beginning of the Put Period, if the Company does
not timely give the Put Notification) or the Call Notice, as the case may be,
the Company will appoint the Depositary. Prior to the Call Date, the Company
will deposit with the Depositary an amount of cash sufficient to pay in full
the Company's obligations pursuant to the Call, assuming for purposes thereof
that all outstanding shares of Special Common Stock are to be purchased
pursuant to the Call. In the case of the exercise of the Call, each holder of
shares of Special Common Stock and, in the case of the exercise of the Put,
each holder who has exercised the Put, will be paid, within two business days
following the surrender of the certificate or certificates representing such
shares to the Depositary or the Company together with a properly executed
letter of transmittal, in the case of the exercise of the Call, or the Put
Notice, in the case of the exercise of the Put, covering such shares of stock,
the Call Price or the Put Price for such shares, as the case may be. In no
event, however, will the Call Price be payable prior to the Call Date. As
certificates representing shares of Special Common Stock with respect to which
the Put has been properly exercised are surrendered to the Depositary or the
Company, the Company will
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immediately deposit with the Depositary cash necessary to pay in full the Put
Price for such shares. Upon such payment, each surrendered certificate so paid
for will be transferred to the Company, canceled and retired. In the event of
the exercise of the Put for less than all of the shares of Special Common Stock
represented by a certificate, a new certificate representing the shares of
Special Common Stock not purchased pursuant to the exercise of the Put will be
issued to the holder of such shares. Following the Put Period, any monies
deposited by the Company with the Depositary for purchases of shares upon
exercise of the Put which are not required to be used for the purchase of
shares of Special Common Stock pursuant to the exercise of the Put will revert
to the general funds of the Company. Any monies deposited with the Depositary
for purchase of shares pursuant to the exercise of the Call and unclaimed at
the end of two years from that date which is twenty-one business days following
the Call Date will revert to the general funds of the Company. After such
reversion of funds, any holder of shares of Special Common Stock may look only
to the Company for the payment of the Call Price. If the Call Notice is given
and funds are deposited (together with irrevocable instructions to the
Depositary to pay the Call Price) as set forth in the Certificate of
Incorporation, from and after the Call Date, all of the shares of Special
Common Stock, other than the shares issued upon the exercise of certain
Replacement Options (as described below), will no longer be deemed outstanding
and all rights of the holders of such shares will cease and terminate.
If the Call Date occurs prior to the date which is fourteen months from the
Closing (the "Option Share Termination Date") and the Company has complied with
all of the requirements with respect to the exercise of the Call, the holders
of shares of Special Common Stock acquired within two months after the
Effective Time upon the exercise of Replacement Options which are incentive
stock options within the meaning of Section 424 of the Code, which shares have
not been disposed by the person who exercised such Replacement Option prior to
the Call Date (the "Option Shares"), will be required to surrender the
certificates therefor to the Company or the Depositary on the Option Share
Termination Date together with a properly executed letter of transmittal. Upon
such surrender, such holders will be paid the Call Price for the Option Shares.
Upon payment in full of the Call Price for the Option Shares, the surrendered
certificates will be transferred to the Company, canceled and retired. From and
after the Option Share Termination Date, the Option Shares will no longer be
deemed outstanding and all rights of the holders of the Option Shares will
cease and terminate.
If the Company fails to make the deposit or promptly pay the purchase price
for shares of the Special Common Stock as provided in Article Fourth, the Call
Price or Put Price, as the case may be, for such shares will thereafter be
increased by an amount equal to interest thereon (the "Default Interest") from
the date of surrender of the certificates pursuant to Article Fourth at an
annual rate equal to two percentage points in excess of the rate of interest
publicly announced from time to time by the Bank of America NT&SA in San
Francisco, California, as its reference rate until the purchase price therefor,
together with the Default Interest, is paid in full and, until such payment in
full, the shares of Special Common Stock will continue to be outstanding and
owned by the record owner thereof. The right of the holders of the Special
Common Stock to exercise the Put will accelerate and the Put will be
exercisable immediately upon the occurrence of certain specified insolvency
events and until the end of the Put Period (without giving effect to
acceleration of the commencement date thereof) and, immediately upon the
occurrence of such acceleration, the Call will be null and void and of no
further force or effect.
VOTING RIGHTS
Except as may be required by law and as described below, the holders of
record of shares of Common Stock and the holders of record of the Special
Common Stock will be entitled to one vote per share for all purposes and will
vote together on all matters and not as a separate class or series. For matters
to be voted on by the Common Stock and the Special Common Stock together and
not as a separate class or series, the presence in person or by proxy of the
holders of record as of the applicable record date of a majority of the total
number of shares of Common Stock and shares of the Special Common Stock will
constitute a quorum. For matters to be voted on by the Common Stock as a
separate class, the presence in person or by proxy of
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the holders of record of a majority of the total number of shares outstanding
as of the applicable record date will constitute a quorum of the Common Stock
voting separately as a class. For matters to be voted on by the Special Common
Stock as a separate class, the presence in person or by proxy of the holders of
record of shares of Special Common Stock representing a majority of all of the
votes entitled to be cast by the holders of the Special Common Stock
outstanding as of the applicable record date will constitute a quorum of the
Special Common Stock voting separately as a class.
For matters to be voted on by the Special Common Stock as a separate class,
and only on such matters, consistent with the rights of the present holders of
Shares, a holder of record of a share of the Special Common Stock will be
entitled to ten votes on each matter submitted to a vote (whether at a meeting
or by written consent) by holders of the Special Common Stock, voting
separately as a class, for each such share thereof held of record by such
holder on a record date if, with respect to such share, each and every
beneficial owner thereof was (1) the beneficial owner of the Shares exchanged
therefor in the Merger (the "Premerger Shares") on August 27, 1991, the date of
the reincorporation of the Company in the State of Delaware (the
"Reincorporation Date"), and at all times until exchanged for shares of Special
Common Stock pursuant to the Merger and (2) the beneficial owner of such share
of Special Common Stock immediately following the Effective Time and at all
times since the Effective Time, subject to certain presumptions set forth in
Article Fourth. Although the number of votes to which a present holder of
Shares entitled to ten votes cannot exceed that percentage of the votes
entitled to be cast which is equal to that percentage of the total outstanding
Shares which such Shares represented on August 27, 1991, there is no such limit
on the votes entitled to be cast by the holders of the Special Common Stock
which has the effect of increasing the percentage of votes to which holders of
Premerger Shares beneficially owned as of the Reincorporation Date, including
Dr. Salick, are entitled. See "INTRODUCTION--Record Date; Voting Rights;
Proxies." Consistent with the Company's certificate of incorporation, the
holders entitled to ten votes per share of Special Common Stock will be
entitled to make certain transfers thereof without losing the ten-vote right.
Holders of shares of the Special Common Stock not entitled to ten votes per
share on matters to be voted on by the holders of the Special Common Stock,
voting separately as a class, are entitled to one vote per share.
Additionally, a beneficial owner of any share of the Special Common Stock
beneficially owned by reason of participation in any employee stock option or
employee stock purchase plan or other similar individual account employee
benefit plan or arrangement of the Company will be deemed for purposes of the
ten-vote rights to have been the beneficial owner of the Premerger Shares at
the Reincorporation Date and such share of Special Common Stock at the
Effective Time if (a) as of the Reincorporation Date, the Premerger Shares for
which the Special Common Stock were exchanged, and as of the Effective Time
such share of Special Common Stock, was allocated to the account of such
beneficial owner under such plan or arrangement, or (b) at the Reincorporation
Date and the Effective Time such beneficial owner was the holder, as the case
may be, of an option or right to acquire Premerger Shares and the Replacement
Option substituted therefor in the Merger, respectively. The distribution of
such share to such beneficial owner pursuant to such plan or arrangements, or
the purchase by such beneficial owner of such share upon the exercise of an
option or a right, as the case may be, will not be deemed to be a change in
beneficial ownership and such beneficial owner will be entitled to ten votes
per share.
Each share of Special Common Stock, whether at any particular time the
beneficial owner thereof is entitled to ten votes or less, will be identical to
all other shares of Special Common Stock in all other respects and together all
shares of Special Common Stock will constitute a single class of shares of the
Company.
ELECTION OF DIRECTORS
From the Closing Date until the Termination Date, the holders of shares of
Common Stock, voting separately as a class, will be entitled to elect five
Common Stock Directors and the holders of the Special Common Stock, voting
separately as a class, will be entitled to elect five Special Common Stock
Directors. The absence of a quorum of the holders of the shares of Common Stock
will not prevent the election of the Special Common Stock Directors.
Conversely, the absence of a quorum of the holders of the Special Common Stock
will not prevent the election of the Common Stock Directors. In the absence of
either or both quorums,
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a majority of the holders present in person or by proxy of the class which
lacks a quorum will have the power to adjourn for a period of up to thirty days
the meeting for the election of the directors which they are entitled to elect
from time to time without notice other than announcement at the meeting until a
quorum of such class shall be present. From and after the Termination Date, the
holders of the Common Stock and the holders of the Special Common Stock will
vote together for the election of directors and not as a separate class or
series and the right of a holder of Special Common Stock to be entitled to ten
votes per share as described above will be of no further force or effect.
If the Company fails to deposit funds with the Depositary and promptly pay
the purchase price for shares of Special Common Stock upon exercise of the Put
or Call, as the case may be, or upon the occurrence of certain insolvency
events specified in Article Fourth, then the authorized number of directors
constituting the Board, immediately and automatically, without further action
of the Board or the stockholders of the Company, will be increased by a number
which will, together with the number of Special Common Stock Directors,
represent a majority of the authorized number of directors of the Company. In
such event, the Special Common Stock Directors then in office will have the
sole and exclusive right to elect to the Board the persons to fill all of the
new directorships created by such increase in the authorized number of
directors. Thereafter, the holders of the Special Common Stock will be entitled
to elect, at all subsequent meetings of stockholders at which directors are
elected, a number of directors representing a majority of then authorized
number of directors of the Company. Such rights of the holders of the Special
Common Stock will continue until such time as the aggregate Put Price and/or
the Call Price, as the case may be, together with the Default Interest thereon
has been paid in full to the holders of Special Common Stock. However, such
rights will be of no force or effect if Zeneca or Zeneca PLC purchases and pays
for, in accordance with the Merger Agreement, all of the shares of Special
Common Stock with respect to which the Put has been exercised. See "THE MERGER
AGREEMENT--Obligations of Zeneca PLC Regarding Put" above.
SPECIAL VOTING RIGHTS
Except as otherwise required by law, until the Termination Date, without (1)
the affirmative vote (or written consent) of holders of record of a majority of
all of the votes entitled to be cast by the holders of the outstanding Special
Common Stock, voting separately as a class, and (2) the affirmative vote (or
written consent) of holders of record of a majority of the total number of
outstanding shares of Common Stock, voting separately as a class, the Company
will not take certain actions including, without limitation, the issuance of
securities senior to, or on parity with, the Special Common Stock or the Common
Stock, or any securities convertible or exercisable therefor; any merger,
consolidation, or recapitalization of the Company; any sale, transfer or other
disposition of all or substantially all of the Company's assets to any person;
any liquidation, dissolution, winding up or other cessation of the business or
operations of the Company; or any amendments to certain provisions of the
Certificate of Incorporation (including Article Fourth).
LIQUIDATION
Upon any liquidation, dissolution or winding up of the Company, prior to any
distributions to holders of Common Stock, the holders of shares of Special
Common Stock will be entitled to receive, out of the assets of the Company,
$42.00 per share or, if appropriate, following a default in payment of the Call
Price or the Put Price, the amount of the Call Price or the Put Price, as the
case may be, increased by an amount equal to the Default Interest. If the
assets of the Company are insufficient to permit the payment to the holders of
the Special Common Stock of the full preferential amounts to which they are
entitled, then the entire assets will be distributed ratably among the holders
of the Special Common Stock then outstanding until payment in full of such
amount per share.
After payment or distribution to the holders of the Special Common Stock of
the full liquidation preference to which they are entitled, the holders of
shares of Common Stock will be entitled to receive out of the assets of the
Company an amount equal to $42.00 per share thereof before any further payment
is made or assets are distributed to the holders of Special Common Stock. If
the assets distributable to the holders of shares of Common Stock will be
insufficient to permit the payment to them of $42.00 per share, such assets
will be distributed ratably among the holders of shares of Common Stock then
outstanding until
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payment in full of such amount per share. After the payment to the holders of
shares of Common Stock of $42.00 per share, the remaining assets of the Company
available for distribution to stockholders shall be distributed ratably to the
holders of shares of the Special Common Stock and the holders of shares of
Common Stock then outstanding.
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