EXHIBIT 2.1
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AGREEMENT AND PLAN OF MERGER
among
PFIZER INC.,
WAGNER ACQUISITION CORP.
and
WYETH
Dated as of January 25, 2009
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TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER
Section 1.1 The Merger.....................................................1
Section 1.2 Closing........................................................1
Section 1.3 Effective Time.................................................2
Section 1.4 Effects of the Merger..........................................2
Section 1.5 Bylaws.........................................................2
Section 1.6 Certificate of Incorporation...................................2
Section 1.7 Officers and Directors.........................................2
Section 1.8 Effect on Capital Stock........................................2
Section 1.9 Company Stock Options and Other Equity-Based Awards............4
Section 1.10 Certain Adjustments............................................7
Section 1.11 Appraisal Rights...............................................7
ARTICLE II
EXCHANGE OF SHARES
Section 2.1 Exchange Agent.................................................8
Section 2.2 Exchange Procedures............................................8
Section 2.3 Distributions with Respect to Unexchanged Shares..............10
Section 2.4 No Further Ownership Rights...................................10
Section 2.5 No Fractional Shares of Parent Common Stock...................10
Section 2.6 Termination of Exchange Fund..................................11
Section 2.7 No Liability..................................................11
Section 2.8 Investment of the Exchange Fund...............................11
Section 2.9 Lost Certificates.............................................12
Section 2.10 Withholding Rights............................................12
Section 2.11 Further Assurances............................................12
Section 2.12 Stock Transfer Books..........................................12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.1 Organization, Good Standing and Qualification.................13
Section 3.2 Capital Structure.............................................13
Section 3.3 Corporate Authority...........................................15
Section 3.4 Governmental Filings; No Violations, Etc......................16
Section 3.5 Company Reports; Financial Statements.........................17
Section 3.6 Absence of Certain Changes....................................19
Section 3.7 Litigation....................................................19
Section 3.8 Compliance with Laws..........................................19
Section 3.9 Properties....................................................20
Section 3.10 Contracts.....................................................20
Section 3.11 Employee Benefit Plans........................................21
Section 3.12 Labor Matters.................................................24
Section 3.13 Tax...........................................................24
Section 3.14 Intellectual Property.........................................25
Section 3.15 Environmental Matters.........................................26
Section 3.16 Insurance.....................................................27
Section 3.17 Regulatory Compliance.........................................27
Section 3.18 Interested Party Transactions.................................28
Section 3.19 Brokers and Finders...........................................28
Section 3.20 No Additional Representations.................................28
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Section 4.1 Organization, Good Standing and Qualification.................30
Section 4.2 Capital Structure.............................................30
Section 4.3 Corporate Authority...........................................31
Section 4.4 Governmental Filings; No Violations; Etc......................32
Section 4.5 Parent Reports; Financial Statements..........................32
Section 4.6 Litigation....................................................34
Section 4.7 Brokers and Finders...........................................34
Section 4.8 No Business Activities........................................35
Section 4.9 Board Approval................................................35
Section 4.10 Vote Required.................................................35
Section 4.11 Financing.....................................................35
Section 4.12 Absence of Certain Changes....................................36
Section 4.13 Compliance with Laws..........................................36
Section 4.14 Certain Agreements............................................36
Section 4.15 Tax...........................................................36
Section 4.16 Intellectual Property.........................................37
Section 4.17 Regulatory Compliance.........................................37
Section 4.18 No Additional Representations.................................38
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 5.1 Ordinary Course...............................................39
Section 5.2 Governmental Filings..........................................45
Section 5.3 Restrictions on Parent........................................45
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1 Preparation of Proxy Statement; Stockholders Meeting..........47
Section 6.2 Access to Information/Employees...............................49
Section 6.3 Reasonable Best Efforts.......................................49
Section 6.4 Acquisition Proposals.........................................52
Section 6.5 Employee Benefits Matters.....................................55
Section 6.6 Fees and Expenses.............................................57
Section 6.7 Directors' and Officers' Indemnification and Insurance........57
Section 6.8 Public Announcements..........................................59
Section 6.9 Listing of Shares of Parent Common Stock and Parent
Convertible Preferred Stock..................................60
Section 6.10 Dividends.....................................................60
Section 6.11 Section 16 Matters............................................60
Section 6.12 Company Cooperation on Certain Matters........................60
Section 6.13 Financing Cooperation.........................................60
Section 6.14 Convertible Debentures and Company Convertible Preferred Stock.63
Section 6.15 Board Representation..........................................64
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to Each Party's Obligation to Effect the Merger....64
Section 7.2 Additional Conditions to Obligations of Parent and Merger Sub.65
Section 7.3 Additional Conditions to Obligations of the Company...........66
ARTICLE VIII
TERMINATION AND AMENDMENT
Section 8.1 General.......................................................67
Section 8.2 Obligations in Event of Termination...........................69
Section 8.3 Amendment.....................................................71
Section 8.4 Extension; Waiver.............................................71
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Non-Survival of Representations, Warranties and Agreements....72
Section 9.2 Notices.......................................................72
Section 9.3 Headings......................................................73
Section 9.4 Counterparts..................................................74
Section 9.5 Entire Agreement; No Third-Party Beneficiaries................74
Section 9.6 Governing Law.................................................74
Section 9.7 Severability..................................................74
Section 9.8 Assignment....................................................74
Section 9.9 Submission to Jurisdiction; Waivers...........................74
Section 9.10 Specific Performance..........................................75
Section 9.11 Waiver of Jury Trial..........................................75
Section 9.12 Interpretation................................................75
Section 9.13 Definitions...................................................76
LIST OF EXHIBITS
Exhibit Title
A Bylaws of the Surviving Corporation
B Certificate of Incorporation of the Surviving Corporation
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger, dated as of January 25, 2009 (this
"Agreement"), among PFIZER INC., a Delaware corporation ("Parent"), WAGNER
ACQUISITION CORP., a Delaware corporation and a direct wholly-owned subsidiary
of Parent ("Merger Sub"), and WYETH, a Delaware corporation (the "Company" and
collectively with Parent and Merger Sub, the "parties").
W I T N E S S E T H:
WHEREAS, the Board of Directors of each of the Company and Parent
deem it advisable and in the best interests of their respective corporation and
stockholders that the Company and Parent engage in a business combination; and
WHEREAS, the combination of the Company and Parent shall be effected
by, and subject to, the terms of this Agreement through a merger as set forth
below;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, and intending to be legally bound hereby, the parties agree as
follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the General Corporation Law
of the State of Delaware (the "DGCL"), Merger Sub shall be merged with and into
the Company at the Effective Time (the "Merger"). Following the Merger, the
separate corporate existence of Merger Sub shall cease and the Company shall
continue as the surviving corporation (the "Surviving Corporation").
Section 1.2 Closing. Upon the terms and subject to the conditions
set forth in this Agreement, the closing of the Merger (the "Closing") will take
place at 10:00 a.m. New York City time on the date that is the fifth (5th)
Business Day following the satisfaction or (subject to applicable Law) waiver of
the conditions set forth in Article VII (excluding conditions that, by their
nature, cannot be satisfied until the Closing Date, but subject to the
fulfillment or waiver of those conditions); provided, however, that (i) in the
event that the proceeds from the Financing (or any alternative financing) are
unavailable on such fifth (5th) Business Day, the Closing will take place on the
earlier of (A) the date that is the tenth (10th) Business Day following the date
on which Parent receives the Election Notice from the Company and (B) December
31, 2009, and (ii) in no event shall Parent be obligated to consummate the
Closing prior to July 31, 2009, unless this Agreement has been previously
terminated pursuant to its terms or unless another time or date is agreed to in
writing by the parties (the actual time and date of the Closing being referred
to herein as the "Closing Date"). The Closing shall be held at the offices of
Cadwalader, Wickersham & Taft LLP, One World Financial Center, New York, New
York, 10281, or at such other place as the parties may agree.
Section 1.3 Effective Time. At the Closing, the Company shall (i)
file a certificate of merger (the "Certificate of Merger") in such form as is
required by, and executed and acknowledged in accordance with, the relevant
provisions of the DGCL and (ii) make all other filings or recordings required
under the DGCL in connection with the Merger. The Merger shall become effective
at such time as the Certificate of Merger is duly filed with the Delaware
Secretary of State or at such subsequent time as Parent and the Company shall
agree and as shall be specified in the Certificate of Merger (the date and time
the Merger becomes effective being the "Effective Time").
Section 1.4 Effects of the Merger. At and after the Effective Time,
the Merger will have the effects set forth herein and in the DGCL. Without
limiting the generality of the foregoing, and subject thereto, at the Effective
Time all the property, rights, privileges, immunities, powers and franchises of
the Company and Merger Sub shall be vested in the Surviving Corporation, and all
debts, liabilities and duties of the Company and Merger Sub shall become the
debts, liabilities and duties of the Surviving Corporation.
Section 1.5 Bylaws. The bylaws of Merger Sub, as in effect
immediately prior to the Effective Time, shall be the bylaws of the Surviving
Corporation and shall read in their entirety as set forth in Exhibit A hereto
until thereafter changed or amended as provided therein or by applicable Law
(subject to Section 6.7).
Section 1.6 Certificate of Incorporation. At the Effective Time, the
certificate of incorporation of the Company shall be amended so as to read in
its entirety as set forth in Exhibit B hereto and, as so amended, shall be the
certificate of incorporation of the Surviving Corporation until thereafter
amended in accordance with its terms and as provided by applicable Law (subject
to Section 6.7).
Section 1.7 Officers and Directors. From and after the Effective
Time, until their successors are duly elected or appointed and qualified in
accordance with applicable Law, (i) the directors of Merger Sub immediately
prior to the Effective Time shall be the directors of the Surviving Corporation
and (ii) the officers of the Company immediately prior to the Effective Time
shall be the officers of the Surviving Corporation.
Section 1.8 Effect on Capital Stock.
(a) At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, each share of common stock, par value
$0.01 per share, of Merger Sub issued and outstanding immediately prior to the
Effective Time, shall be converted into one validly issued, fully paid and
non-assessable share of common stock, par value $0.01 per share, of the
Surviving Corporation.
(b) At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, each share of common stock, par value
$0.33 1/3 per share, of the Company ("Company Common Stock") issued and
outstanding immediately prior to the Effective Time (other than Restricted
Stock, which shall be treated in accordance with Section 1.9(d), and shares of
Company Common Stock and Company Convertible Preferred Stock owned directly or
indirectly by Parent or held directly or indirectly by the Company, all of which
shall be canceled as provided in Section 1.8(e)), shall, except as provided in
Section 1.11 with respect to the shares of Company Common Stock as to which
appraisal rights have been exercised, be converted into the right to receive (i)
0.985 (as may be adjusted pursuant to this Section 1.8, the "Exchange Ratio")
validly issued, fully paid and non-assessable shares of common stock ("Parent
Common Stock"), par value $0.05 per share, of Parent (unless the aggregate
number of shares of Parent Common Stock to be issued in the Merger pursuant to
this Section 1.8 and Section 1.9, together with the shares, if any, of Parent
Common Stock issuable upon conversion of the Parent Convertible Preferred Stock
and the Floating Rate Convertible Senior Debentures Due 2024 (the "Convertible
Debentures"), in each case to the extent shares of Parent Convertible Preferred
Stock and/or the Convertible Debentures are issued and outstanding as of the
Effective Time, would exceed 19.9% of Parent's issued and outstanding shares of
Parent Common Stock immediately prior to the Effective Time (19.9% of such
issued and outstanding shares rounded down to the nearest whole share, the
"Maximum Share Number") in which case the Exchange Ratio shall be reduced (the
amount of such reduction, the "Exchange Ratio Reduction Number") to the minimum
extent necessary such that the number of shares of Parent Common Stock issuable
in the Merger pursuant to this Section 1.8 and Section 1.9, together with the
shares, if any, of Parent Common Stock issuable upon conversion of the Parent
Convertible Preferred Stock and the Convertible Debentures, equals the Maximum
Share Number) (the "Stock Consideration") and (ii) $33.00 in cash without
interest plus, if the Exchange Ratio is adjusted pursuant to the preceding
clause (i), the amount in cash equal to the Exchange Ratio Reduction Number
multiplied by the Parent Share Cash Value (the "Cash Consideration"). Together
with any cash in lieu of fractional shares of Parent Common Stock to be paid
pursuant to Section 2.5, the Stock Consideration and Cash Consideration are
collectively referred to herein as the "Common Stock Merger Consideration."
(c) At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, each share of the $2 Convertible
Preferred Stock, par value $2.50 per share, of the Company ("Company Convertible
Preferred Stock"), issued and outstanding immediately prior to the Effective
Time, if any, shall be converted into the right to receive one share of a new
series of convertible preferred stock ("Parent Convertible Preferred Stock") to
be issued by Parent at the Effective Time and to be designated as Parent
Convertible Preferred Stock (the "Preferred Stock Merger Consideration", and
collectively with the Common Stock Merger Consideration, the "Merger
Consideration") having the same powers, designations, preferences and rights (to
the fullest extent practicable) as the shares of Company Convertible Preferred
Stock (it being understood that the number of shares of Parent Common Stock into
which each share of Parent Convertible Preferred Stock shall be convertible will
equal the product of (i) the number of shares of Common Stock into which a share
of Company Convertible Preferred Stock is convertible immediately prior to the
Effective Time and (ii) the sum of the (A) the Exchange Ratio and (B) the
quotient of the Cash Consideration and the Parent Share Cash Value). Prior to
the Closing, Parent shall take all corporate action necessary to reserve for
issuance a sufficient number of shares of Parent Common Stock for delivery upon
conversion of the Parent Convertible Preferred Stock.
(d) Except as set forth in Section 1.8(e), Section 1.9(d) and
Section 1.11, as a result of the Merger and without any action on the part of
the holders thereof, at the Effective Time, all shares of outstanding Company
Common Stock and Company Convertible Preferred Stock, if any, shall cease to be
outstanding and shall be canceled and retired and shall cease to exist, and each
holder of a certificate or certificates which immediately prior to the Effective
Time represented any such shares of Company Common Stock ("Common Certificates")
or of Company Convertible Preferred Stock ("Preferred Certificates" and together
with the Common Certificates, the "Certificates") or book-entry shares which
immediately prior to the Effective Time represented shares of Company Common
Stock ("Common Book-Entry Shares") or shares of Company Convertible Preferred
Stock ("Preferred Book-Entry Shares" and together with the Common Book-Entry
Shares, the "Book-Entry Shares") shall thereafter cease to have any rights with
respect to such shares of Company Common Stock or Company Convertible Preferred
Stock, respectively, except as provided herein or by Law.
(e) Each share of Company Common Stock and Company Convertible
Preferred Stock owned by Parent or held by the Company at the Effective Time
including any Reacquired Shares shall, by virtue of the Merger, cease to be
outstanding and shall be canceled and retired and no stock of Parent or other
consideration shall be delivered in exchange therefor.
Section 1.9 Company Stock Options and Other Equity-Based Awards.
(a) By virtue of the Merger, each option to purchase shares of
Company Common Stock under the applicable Company Stock Plans that is
outstanding immediately prior to the Effective Time, whether or not then vested
and exercisable (collectively, the "Options" or "Company Stock Options") shall
become fully vested and exercisable immediately prior to, and then shall be
canceled at, the Effective Time, and the holder thereof shall, subject to
Section 1.9(f), be entitled to receive an amount in cash equal to the product of
(i) the excess, if any, of (1) the Per Share Amount over (2) the exercise price
per share of Company Common Stock subject to such Option, with the aggregate
amount of such payment rounded up to the nearest cent, and (ii) the total number
of shares of Company Common Stock subject to such fully vested and exercisable
Option as in effect immediately prior to the Effective Time (the "Option
Consideration"). The Option Consideration shall be paid in a lump sum as soon as
practicable after the Effective Time but in no event later than ten (10)
Business Days following the Effective Time.
(b) By virtue of the Merger, each restricted stock unit,
representing a right to receive one share of Company Common Stock (an "RSU")
granted by the Company under any Company Stock Plan, including each "performance
share award" denominated in RSUs (but excluding any DSU (as defined in Section
1.9(c)), which is outstanding immediately prior to the Effective Time shall
become fully vested (except that with respect to any RSU, which by the terms of
the award agreement pursuant to which it was granted provides for a lesser
percentage of such RSUs to become vested upon the consummation of the Merger,
shall only become vested as to such lesser percentage), and then shall be
canceled at the Effective Time, and the holder of such vested RSU shall, subject
to Section 1.9(f), be entitled to receive an amount in cash equal to the Per
Share Amount in respect of each share of Company Common Stock into which the
vested portion of the RSU would otherwise be convertible (the "RSU
Consideration"), which shall be paid in a lump sum as soon as practicable after
the Effective Time but in no event later than ten (10) Business Days following
the Effective Time. Notwithstanding the foregoing, any RSU that constitutes,
either in whole or in part, a deferral of compensation subject to Section 409A
of the Code (the "409A Deferred RSUs"), shall be treated in the appropriate
manner provided in (i) or (ii) below, as applicable:
(i) Each 409A Deferred RSU that first becomes vested as a result of
the transactions contemplated under this Agreement (the "409A RSUs")
shall, as of the Effective Time, become a vested right to receive, in
respect of each share of Company Common Stock into which the 409A RSUs
would otherwise be convertible, the Common Stock Merger Consideration (the
"409A RSU Consideration"); provided, however, that all such 409A RSU
Consideration shall be deposited in a grantor trust that satisfies the
requirements of Revenue Procedure 92-64 (the "Grantor Trust") and that
will serve as the funding source for the Surviving Corporation to satisfy
its obligations to pay each former holder of a 409A Deferred RSU the
amount of 409A RSU Consideration due to such holder at such time(s) and in
such manner as may be provided under the terms of the applicable Company
Stock Plan, award agreement, deferral election form and/or any other
payment election form, applicable to such holder's respective 409A RSU
(collectively, the "Deferred Payment Terms"). Additionally, during the
period that any such 409A RSU Consideration remains in such Grantor Trust,
(x) the portion of the 409A RSU Consideration that is comprised of the
Cash Consideration shall accrue interest at the "Market Rate" (as such
term is defined under the Wyeth 2005 (409A) Deferred Compensation Plan
(effective January 1, 2005) (the "Wyeth 2005 (409A) DCP") and (y) the
portion of the 409A RSU Consideration that is comprised of the Stock
Consideration shall accrue, in additional shares of Parent Common Stock
(with any cash dividends being reinvested into shares of Parent Common
Stock).
(ii) In respect of (x) each 409A Deferred RSU that has first become
vested in accordance with its terms, other than as a result of the
transactions contemplated under this Agreement and (y) any RSU that would
have constituted, either in whole or in part, a deferral of compensation
subject to Section 409A of the Code, but for such RSU having been earned
and vested prior to December 31, 2004 (and any dividend equivalents that
have been credited with respect to such RSU) (any of the foregoing, a
"Vested Deferred RSU") for which there is outstanding a corresponding
share of Company Common Stock held in the Wyeth Restricted Stock Trust
(the "Stock Trust") for the purpose of satisfying the Company's
obligations to deliver shares of Company Common Stock in respect of such
Vested Deferred RSU (the "Deferred RSU Shares") in accordance with the
applicable Deferred Payment Terms, immediately upon the Effective Time,
each such Deferred RSU Share shall be converted into Common Stock Merger
Consideration pursuant to Section 1.8(b) above (the "Vested Deferred RSU
Consideration"); provided, however, that all such Vested Deferred RSU
Consideration shall be held in the Stock Trust and any payments due in
respect of such Deferred RSU Shares shall be as set forth under the
applicable Deferred Payment Terms; and provided, further, that, during the
period that any such Vested Deferred RSU Consideration is held in the
Stock Trust (x) the portion of the Vested Deferred RSU Consideration
representing the Cash Consideration shall accrue interest at the Market
Rate and (y) the portion of the Vested Deferred RSU Consideration
representing the Stock Consideration shall accrue, in additional shares of
Parent Common Stock, dividends in the same amount(s) and at the same
time(s) as dividends are paid on Parent Common Stock.
(c) By virtue of the Merger and pursuant to the terms of the
Company's 2008 Non-Employee Director Stock Incentive Plan or 2006 Non-Employee
Director Stock Incentive Plan (together, the "Director DSU Plans"), each
deferred stock unit, representing a right to receive one share of Company Common
Stock granted by the Company under the Director DSU Plans (a "DSU") which is
outstanding immediately prior to the Effective Time shall become vested and then
canceled at the Effective Time, and the holder thereof shall, subject to Section
1.9(f), be entitled to receive (i) an amount in cash equal to the Per Share
Amount in respect of each share of Company Common Stock subject to the DSU
(including shares attributable to dividend equivalents accrued on such DSU and
converted into additional shares of Company Common Stock subject to such DSU),
and (ii) the amount in cash equal to any dividend equivalents then credited to
the holder's DSU account which have not yet been converted into shares of
Company Common Stock, all in accordance with the Director DSU Plans (the "DSU
Consideration"), which shall be paid in a lump sum as soon as practicable after
the Effective Time but in no event later than ten (10) Business Days following
the Effective Time. In addition, and pursuant to the terms of the Company's
Directors' Deferral Plan (the "Director Deferral Plan"), effective as of the
Effective Time, each phantom share of Common Stock credited to a participant's
account thereunder (including phantom shares attributable to dividend
equivalents) shall be converted into the right to receive an amount in cash
equal to the Per Share Amount (such amount, the "Director Deferral Amount").
Such Director Deferral Amounts shall, to the extent provided under the Director
Deferral Plan, be paid out in a lump sum immediately following the Effective
Time (but in no event later than ten (10) Business Days following the Effective
Time); provided, however, that any such other Director Deferral Amounts (the
"Grandfathered Amounts") that do not, under the terms of the Director Deferral
Plan, become payable immediately upon the Effective Time shall instead be paid
out in accordance with the applicable payment schedules provided under the
Director Deferral Plan; provided, further, that for so long as any Grandfathered
Amounts remain in the accounts maintained under the Director Deferral Plan, such
amounts shall accrue an amount of deemed interest at the "Company Credit" rate
(as such term is defined in such plan).
(d) By virtue of the Merger and pursuant to the terms of the 1994
Restricted Stock Plan for Non-Employee Directors (the "1994 Plan"), each
restricted share of Company Common Stock granted by the Company under the 1994
Plan that is either unvested, or vested but held in the Stock Trust
(collectively, the "Restricted Stock") that is outstanding immediately prior to
the Effective Time shall, to the extent not vested, vest as of the Effective
Time, and at the Effective Time, the holder of all of the foregoing Restricted
Stock shall, subject to Section 1.9(f), be entitled to receive an amount in cash
equal to the Per Share Amount in cancellation of each share of Restricted Stock
previously held under such Company Stock Plan (the "Restricted Stock
Consideration"). The Restricted Stock Consideration shall be paid to such
holders as soon as practicable after the Effective Time but in no event later
than ten (10) Business Days following the Effective Time.
(e) As of the Effective Time, each phantom share of Company Common
Stock credited to a participant account under any of the Wyeth Supplemental
Employee Savings Plan (amended and restated effective as of January 1, 2005),
the Wyeth 2005 (409A) DCP and the Wyeth Deferred Compensation Plan, amended and
restated as of November 20, 2003 (and further amended January 1, 2005)
(collectively, the "Company Deferred Equity Unit Plans") shall be converted into
the right to receive an amount equal to the Common Stock Merger Consideration
(the "Deferred Equity Unit Amount" ); provided, further, however, that the Cash
Consideration component of such Deferred Equity Unit Amount shall accrue
interest at the Market Rate, unless and until all or any portion of such
notional Cash Consideration component of the Deferred Equity Unit Amount is
notionally invested in another investment option, to the extent provided for
under any Deferred Equity Unit Plan, and the Stock Consideration component of
such Deferred Equity Unit Amount shall earn dividend equivalents in the same
manner as would otherwise be earned under the applicable Company Deferred Equity
Unit Plan. All amounts payable under the Deferred Equity Unit Plans (including
the Deferred Equity Unit Amount) shall be paid to participants in accordance
with the terms of the applicable Deferred Payment Terms. Solely with respect to
the Wyeth Management Incentive Plan, as amended through December 5, 2007 (the
"MIP"), each right to receive a share of Company Common Stock outstanding
thereunder as of the Effective Time shall be converted into the right to receive
the Common Stock Merger Consideration, to be paid to participants therein in
accordance with and subject to the terms of the MIP.
(f) All amounts payable pursuant to this Section 1.9 shall be
reduced by any required withholding of taxes in accordance with Section 2.10 and
shall, except as otherwise provided in this Section 1.9, be paid without
interest.
(g) Any such amounts representing Option Consideration, RSU
Consideration, 409A RSU Consideration, Vested Deferred RSU Consideration, DSU
Consideration, Restricted Stock Consideration or the Director Deferred Amounts
(and amounts due under the MIP) shall be paid by Parent or the Surviving
Corporation, and any such amounts paid by the Surviving Corporation shall be
reimbursed promptly by Parent to the Surviving Corporation following the
Effective Time.
(h) Prior to the Effective Time, the Board of Directors of the
Company (or the appropriate committee thereof) shall, and such Board of
Directors (or the appropriate committee thereof) shall cause the Company to, use
its commercially reasonable efforts to take all actions reasonably required to
effectuate the provisions of this Section 1.9.
Section 1.10 Certain Adjustments. If, between the date of this
Agreement and the Effective Time, the outstanding Parent Common Stock or Company
Common Stock shall have been changed into a different number of shares or
different class by reason of any reclassification, recapitalization, stock
split, split-up, combination or exchange of shares or a stock dividend or
dividend payable in any other securities shall be declared with a record date
within such period, or any similar event shall have occurred, the Common Stock
Merger Consideration shall be appropriately adjusted to provide to the holders
of Company Common Stock the same economic effect as contemplated by this
Agreement prior to such event.
Section 1.11 Appraisal Rights.
(a) Notwithstanding anything in this Agreement to the contrary,
shares of Company Common Stock outstanding immediately prior to the Effective
Time and held by a holder who has not voted in favor of the adoption of this
Agreement and who has demanded appraisal for such shares of Company Common Stock
in accordance with the DGCL shall not be converted into the right to receive the
Common Stock Merger Consideration unless such holder fails to perfect or
withdraws or otherwise loses such holder's right to appraisal in accordance with
the DGCL. If, after the Effective Time, such holder fails to perfect or
withdraws or loses such holder's right to appraisal, such shares of Company
Common Stock shall be treated as if they had been converted into, and exchanged
for, as of the Effective Time, the right to receive the Common Stock Merger
Consideration.
(b) The Company shall give Parent (i) prompt notice of any demands
for appraisal received by the Company, withdrawals of such demands, and any
other instruments served pursuant to Section 262 of the DGCL and received by the
Company and (ii) the opportunity to direct all negotiations and proceedings with
respect to demands for appraisal under the DGCL. The Company shall not, except
with the prior written consent of Parent, make any payment with respect to any
demands for appraisal or offer to settle or settle any such demands.
ARTICLE II
EXCHANGE OF SHARES
Section 2.1 Exchange Agent. Prior to the Effective Time, Parent
shall appoint a commercial bank or trust company to act as exchange agent
hereunder (which entity shall be reasonably acceptable to the Company) for the
purpose of exchanging Certificates and Book-Entry Shares for the Merger
Consideration (the "Exchange Agent"). At or prior to the Effective Time, Parent
shall deposit with the Exchange Agent, (a) in trust for the benefit of holders
of shares of Company Common Stock, Common Book-Entry Shares (or certificates if
requested) representing the Parent Common Stock issuable, and cash in U.S.
dollars in an amount sufficient to pay the Cash Consideration payable, pursuant
to Section 1.8 in exchange for outstanding shares of Company Common Stock, and
(b) in trust for the benefit of holders of shares of Company Convertible
Preferred Stock, Preferred Book-Entry Shares (or certificates if requested)
representing the Parent Convertible Preferred Stock issuable pursuant to Section
1.8 in exchange for outstanding shares of Company Convertible Preferred Stock.
Parent agrees to make available directly or indirectly to the Exchange Agent
from time to time as needed, any cash in lieu of fractional shares of Parent
Common Stock to be issued or paid in consideration therefor pursuant to Section
2.5 of this Agreement and any dividends or distributions to which such holder is
entitled pursuant to Section 2.3 of this Agreement. Any cash, shares of Parent
Common Stock and Parent Convertible Preferred Stock deposited with the Exchange
Agent shall hereinafter be referred to as the "Exchange Fund." Notwithstanding
anything herein to the contrary, the exchange procedures described in this
Article II shall not apply to Restricted Stock and the Restricted Stock
Consideration and the Exchange Agent shall not act as exchange agent for the
Restricted Stock.
Section 2.2 Exchange Procedures.
(a) Promptly after the Effective Time, and in any event not later
than the fifth (5th) Business Day following the Effective Time, the Surviving
Corporation shall cause the Exchange Agent to mail to each holder of record of a
Certificate (i) a letter of transmittal which shall specify that delivery shall
be effected, and risk of loss and title to the Certificates shall pass, only
upon proper delivery of the Certificates to the Exchange Agent, and which letter
shall be in customary form and have such other provisions as Parent may
reasonably specify (such letter to be reasonably acceptable to the Company prior
to the Effective Time) and (ii) instructions for effecting the surrender of such
Certificates (or effective affidavits of loss in lieu thereof) in exchange for
the applicable Merger Consideration, any cash in lieu of fractional shares of
Parent Common Stock to be issued or paid in consideration therefor pursuant to
Section 2.5 of this Agreement and any dividends or distributions to which such
holder is entitled pursuant to Section 2.3 of this Agreement. Upon surrender of
a Certificate to the Exchange Agent together with such letter of transmittal,
duly executed and completed in accordance with the instructions thereto, and
such other documents as may reasonably be required by the Exchange Agent, the
holder of such Certificate shall be entitled to receive in exchange therefor:
(i) in the case of holders of Common Certificates (A) one or more
shares of Parent Common Stock (which shall be in uncertificated book-entry
form unless a physical certificate is requested) representing, in the
aggregate, the whole number of shares that such holder has the right to
receive pursuant to Section 1.8 (after taking into account all shares of
Company Common Stock then held by such holder) and (B) cash in the amount
equal to the Cash Consideration that such holder has the right to receive
pursuant to Section 1.8, plus cash that such holder has the right to
receive in lieu of any fractional shares of Parent Common Stock pursuant
to Section 2.5 and dividends and other distributions pursuant to Section
2.3 (in each case, after taking into account all shares of Company Common
Stock then held by such holder); and
(ii) in the case of holders of Preferred Certificates (A) one or
more shares of Parent Convertible Preferred Stock (which shall be in
uncertificated book-entry form unless a physical certificate is requested)
representing, in the aggregate, the number of shares that such holder has
the right to receive pursuant to Section 1.8 and (B) cash that such holder
has the right to receive in lieu of any dividends and other distributions
pursuant to Section 2.3 (in each case, after taking into account all
shares of Company Convertible Preferred Stock then held by such holder).
Notwithstanding anything to the contrary contained in this Agreement, any
holder of Book-Entry Shares shall not be required to deliver a Certificate or an
executed letter of transmittal to the Exchange Agent to receive the Merger
Consideration that such holder is entitled to receive pursuant to this
Agreement.
(b) No interest will be paid or will accrue on any cash payable
pursuant to Section 2.3 or Section 2.5.
(c) In the event of a transfer of ownership of a Certificate
representing Company Common Stock or Company Convertible Preferred Stock that is
not registered in the stock transfer records of the Company, the Common Stock
Merger Consideration or the Preferred Stock Merger Consideration, as applicable,
shall be issued or paid in exchange therefor to a person other than the person
in whose name the Certificate so surrendered is registered if the Certificate
formerly representing such Company Common Stock or Company Convertible Preferred
Stock shall be properly endorsed or otherwise be in proper form for transfer and
the person requesting such payment or issuance shall pay any transfer or other
similar Taxes required by reason of the payment or issuance to a person other
than the registered holder of the Certificate or establish to the satisfaction
of Parent that the Tax has been paid or is not applicable.
Section 2.3 Distributions with Respect to Unexchanged Shares. All
shares of Parent Common Stock and Parent Convertible Preferred Stock to be
issued pursuant to this Agreement shall be deemed issued and outstanding as of
the Effective Time and whenever a dividend or other distribution is declared by
Parent in respect of the Parent Common Stock or Parent Convertible Preferred
Stock, as the case may be, the record date for which is at or after the
Effective Time, that declaration shall include dividends or other distributions
in respect of all shares issuable pursuant to this Agreement; provided that no
dividends or other distributions declared or made in respect of the Parent
Common Stock or Parent Convertible Preferred Stock, as the case may be, shall be
paid to the holder of any unsurrendered Certificate until the holder of such
Certificate shall surrender such Certificate in accordance with this Article II.
Subject to the effect of applicable Laws, following surrender of any such
Certificate, there shall be paid to such holder of shares of Parent Common Stock
or Parent Convertible Preferred Stock issuable in exchange therefor, without
interest, (a) promptly after the time of such surrender, the amount of any cash
payable in lieu of fractional shares of Parent Common Stock to which such holder
is entitled pursuant to Section 2.5 and the amount of dividends or other
distributions with a record date after the Effective Time theretofore paid with
respect to such whole shares of Parent Common Stock or shares of Parent
Convertible Preferred Stock, and (b) at the appropriate payment date, the amount
of dividends or other distributions with a record date at or after the Effective
Time but prior to such surrender and a payment date subsequent to such surrender
payable with respect to such shares of Parent Common Stock or Parent Convertible
Preferred Stock.
Section 2.4 No Further Ownership Rights. All shares of Parent Common
Stock and Parent Convertible Preferred Stock issued and cash paid upon
conversion of shares of Company Common Stock or Company Convertible Preferred
Stock in accordance with the terms of Article I and this Article II (including
any cash paid pursuant to Section 1.8, Section 2.3 or Section 2.5) shall be
deemed to have been issued or paid in full satisfaction of all rights pertaining
to the shares of Company Common Stock and Company Convertible Preferred Stock,
as the case may be (other than any rights with respect to any unpaid dividends
with respect to Company Common Stock or Company Convertible Preferred Stock that
were declared prior to the Effective Time with a record date prior to the
Effective Time and a payment date after the Effective Time).
Section 2.5 No Fractional Shares of Parent Common Stock.
(a) No certificates or scrip or shares of Parent Common Stock
representing fractional shares of Parent Common Stock or book-entry credit of
the same shall be issued upon the surrender for exchange of Certificates and
such fractional share interests will not entitle the owner thereof to vote or to
have any rights of a stockholder of Parent or a holder of shares of Parent
Common Stock.
(b) Notwithstanding any other provision of this Agreement, each
holder of shares of Company Common Stock exchanged pursuant to the Merger who
would otherwise have been entitled to receive a fraction of a share of Parent
Common Stock (after taking into account all Certificates delivered by such
holder) shall receive, in lieu thereof, cash (without interest) in an amount
equal to the product of (i) such fractional part of a share of Parent Common
Stock multiplied by (ii) the Parent Share Cash Value.
(c) As promptly as practicable after the determination of the amount
of cash, if any, to be paid to holders of fractional interests, the Exchange
Agent shall so notify Parent, and Parent shall promptly deposit or cause the
Surviving Corporation to deposit such amount with the Exchange Agent and shall
cause the Exchange Agent to forward payments to such holders of fractional
interests subject to and in accordance with the terms hereof.
Section 2.6 Termination of Exchange Fund. Any portion of the
Exchange Fund which remains undistributed to the holders of shares of Company
Common Stock or Company Convertible Preferred Stock for twelve (12) months after
the Effective Time shall be delivered to Parent or otherwise on the instruction
of Parent, and any holders of shares of Company Common Stock or Company
Convertible Preferred Stock who have not theretofore complied with this Article
II shall thereafter look only to Parent for, and Parent shall remain liable for,
the Common Stock Merger Consideration or Preferred Stock Merger Consideration,
as the case may be, to which such holders are entitled pursuant to Section 1.8
and Section 2.2, and any cash in lieu of fractional shares of Parent Common
Stock to which such holders are entitled pursuant to Section 2.5 and any
dividends or distributions with respect to shares of Parent Common Stock or
Parent Convertible Preferred Stock to which such holders are entitled pursuant
to Section 2.3. Any such portion of the Exchange Fund remaining unclaimed by
holders of shares of Company Common Stock or Company Convertible Preferred Stock
five (5) years after the Effective Time (or such earlier date immediately prior
to such time as such amounts would otherwise escheat to or become property of
any Governmental Entity shall, to the extent permitted by Law, become the
property of the Surviving Corporation free and clear of any claims or interest
of any Person previously entitled thereto.
Section 2.7 No Liability. None of Parent, Merger Sub, the Company,
the Surviving Corporation or the Exchange Agent shall be liable to any Person in
respect of any Merger Consideration from the Exchange Fund delivered to a public
official pursuant to any applicable abandoned property, escheat or similar Law.
Section 2.8 Investment of the Exchange Fund. The Exchange Agent
shall invest any cash included in the Exchange Fund as directed by Parent on a
daily basis in (i) short term direct obligations of the United States of America
with maturities of no more than 30 days, (ii) short term obligations for which
the full faith and credit of the United States of America is pledged to provide
for payment of all principal and interest or (iii) commercial paper obligations
receiving the highest rating from either Moody's Investor Services, Inc. or
Standard & Poor's; provided, that no gain or loss thereon shall affect the
amounts payable to the Company stockholders pursuant to Article I and the other
provisions of this Article II. If for any reason (including losses) the cash in
the Exchange Fund shall be insufficient to fully satisfy all of the payment
obligations to be made in cash by the Exchange Agent hereunder, Parent shall
promptly deposit cash into the Exchange Fund in an amount which is equal to the
deficiency in the amount of cash required to fully satisfy such cash payment
obligations. Any interest and other income resulting from such investments shall
promptly be paid to Parent.
Section 2.9 Lost Certificates. If any Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
Person claiming such Certificate to be lost, stolen or destroyed and, if
required by the Surviving Corporation, the posting by such Person of a bond in
such reasonable amount as the Surviving Corporation may direct as indemnity
against any claim that may be made against it with respect to such Certificate,
the Exchange Agent will deliver in exchange for such lost, stolen or destroyed
Certificate the applicable Merger Consideration with respect to the shares of
Company Common Stock or Company Convertible Preferred Stock, as the case may be,
formerly represented thereby, any cash in lieu of fractional shares of Parent
Common Stock to which such holders are entitled pursuant to Section 2.5, and
unpaid dividends and distributions on shares of Parent Common Stock or Parent
Convertible Preferred Stock to which such holders are entitled pursuant to
Section 2.3, as the case may be, deliverable in respect thereof, pursuant to
this Agreement.
Section 2.10 Withholding Rights. Each of the Surviving Corporation,
Parent and the Exchange Agent shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any holder of
shares of Company Common Stock, Company Convertible Preferred Stock, Company
Stock Options, RSUs, DSUs, Restricted Stock or any other Equity Interests in the
Company such amounts as it is required to deduct and withhold with respect to
the making of such payment under the Code and the rules and regulations
promulgated thereunder, or any provision of state, local or foreign Tax Law. To
the extent that amounts are so withheld by the Surviving Corporation, Parent or
the Exchange Agent, as the case may be, such withheld amounts shall be treated
for all purposes of this Agreement as having been paid to the holder of shares
of Company Common Stock, Company Convertible Preferred Stock, Company Stock
Options, RSUs, DSUs, Restricted Stock or other Equity Interests in the Company,
as the case may be, in respect of which such deduction and withholding was made
by the Surviving Corporation or Parent.
Section 2.11 Further Assurances. After the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of the Company or Merger Sub, any
deeds, bills of sale, assignments or assurances and to take and do, in the name
and on behalf of the Company or Merger Sub, any other actions and things to
vest, perfect or confirm of record or otherwise in the Surviving Corporation any
and all right, title and interest in, to and under any of the rights, properties
or assets acquired or to be acquired by the Surviving Corporation as a result
of, or in connection with, the Merger.
Section 2.12 Stock Transfer Books. The stock transfer books of the
Company shall be closed at the close of business on the day on which the
Effective Time occurs and there shall be no further registration of transfers of
shares of Company Common Stock or Company Convertible Preferred Stock thereafter
on the records of the Company. On or after the Effective Time, any Certificates
presented to the Exchange Agent or Parent for any reason shall be converted into
the Merger Consideration with respect to the shares of Company Common Stock or
Company Convertible Preferred Stock, as the case may be, formerly represented
thereby (including any cash in lieu of fractional shares of Parent Common Stock
to which the holders thereof are entitled pursuant to Section 2.5) and any
dividends or other distributions to which the holders thereof are entitled
pursuant to Section 2.3.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (i) as disclosed in the Company SEC Documents filed since January
1, 2008 but prior to the date hereof (but excluding any risk factor disclosures
contained under the heading "Risk Factors," any disclosure of risks included in
any "forward-looking statements" disclaimer or any other statements that are
similarly non-specific or predictive or forward-looking in nature, in each case,
other than any specific factual information contained therein) or (ii) as set
forth in the Company Disclosure Letter delivered by the Company to Parent prior
to the execution of this Agreement (the "Company Disclosure Letter"), which
identifies items of disclosure by reference to a particular section or
subsection of this Agreement (provided, however, that any information set forth
in one section of such Company Disclosure Letter also shall be deemed to apply
to each other section and subsection of this Agreement to which its relevance is
reasonably apparent), the Company hereby represents and warrants to Parent and
Merger Sub as follows:
Section 3.1 Organization, Good Standing and Qualification.
(a) Each of the Company and its Significant Subsidiaries is a
corporation duly organized, validly existing and in good standing (with respect
to jurisdictions that recognize the concept of good standing) under the Laws of
its respective jurisdiction of organization and has all requisite corporate or
similar power and authority to own, lease and operate its properties and assets
and to carry on its business as presently conducted, except with respect to
Significant Subsidiaries, where the failure to be so organized, qualified or in
good standing, or to have such power or authority when taken together with all
other such failures, has not, and would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect. Each of the
Company and its Significant Subsidiaries is duly qualified or licensed to do
business and is in good standing (with respect to jurisdictions that recognize
the concept of good standing) as a foreign corporation in each jurisdiction
where the ownership, leasing or operation of its assets or properties or conduct
of its business requires such qualification, except where the failure to be so
organized, qualified or in good standing, or to have such power or authority
when taken together with all other such failures, has not, and would not
reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect.
(b) The Company has delivered or made available to Parent and Merger
Sub a true and complete copy of the Company's currently effective certificate of
incorporation and bylaws, as amended and restated to the date hereof. The
Company's certificate of incorporation and bylaws so delivered are in full force
and effect and the Company is not in violation of its certificate of
incorporation or bylaws.
(c) Section 3.1(c) of the Company Disclosure Letter lists, as of the
date of this Agreement, each Significant Subsidiary of the Company.
Section 3.2 Capital Structure.
(a) As of the close of business on January 23, 2009 (the
"Capitalization Date"), the authorized capital stock of the Company consists of
(i) 2,400,000,000 shares of Company Common Stock, of which 1,331,176,822 shares
were outstanding (inclusive of 37,823.2483 shares of Restricted Stock granted
pursuant to the Company Stock Plans) and 91,492,222 shares were held in the
treasury of the Company and (ii) 5,000,000 shares of Preferred Stock, par value
$2.50 per share, of which 2,830,000 have been designated as $2 Convertible
Preferred Stock, of which 8,959 shares were outstanding. There are no other
classes of capital stock of the Company authorized or outstanding. All issued
and outstanding shares of the capital stock of the Company are duly authorized,
validly issued, fully paid and non-assessable, and no class of capital stock is
entitled to preemptive rights.
(b) From the close of business on the Capitalization Date through
the date of this Agreement, there have been no issuances of shares of the
capital stock or equity securities of the Company or any other securities of the
Company other than issuances of shares of Company Common Stock pursuant to the
exercise of Company Stock Options or the settlement of RSU or DSU rights
outstanding as of the Capitalization Date under the Company Stock Plans. There
were outstanding as of the Capitalization Date, no options, warrants, calls,
commitments, agreements, arrangements, undertakings or any other rights to
acquire capital stock from the Company other than Company Stock Options, RSUs
and DSUs as set forth in Section 3.2(b) of the Company Disclosure Letter and
other than the Company Convertible Preferred Stock. Section 3.2(b) of the
Company Disclosure Letter sets forth a complete and correct list, as of the
Capitalization Date, of the number of shares of Company Common Stock subject to
Company Stock Options, RSUs, DSUs, Restricted Stock or any other rights to
purchase or receive Company Common Stock granted under the Company Stock Plans
or otherwise. Immediately prior to the Closing, the Company will provide to
Parent a complete and correct list, as of the Closing, of the number of shares
of Company Common Stock subject to Company Stock Options, RSUs, DSUs, Restricted
Stock or any other rights to purchase or receive Company Common Stock granted
under the Company Stock Plans or otherwise, the dates of grant, the extent to
which such options are vested and, where applicable, the exercise prices
thereof. No options, warrants, RSUs, DSUs, calls, commitments, agreements,
arrangements, undertakings or other rights to acquire capital stock from the
Company, or other equity-based awards, have been issued or granted on or after
the Capitalization Date through the date of this Agreement.
(c) Other than Convertible Debentures, no bonds, debentures, notes
or other indebtedness of the Company having the right to vote (or convertible
into or exercisable for securities having the right to vote) on any matters on
which holders of capital stock of the Company may vote ("Company Voting Debt")
are issued or outstanding.
(d) Except as otherwise set forth in this Section 3.2, Section
6.5(j) or contained in Section 3.2(b) of the Company Disclosure Letter, as of
the date of this Agreement, (i) there are no outstanding obligations of the
Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire
any shares of capital stock of the Company or any of its Subsidiaries except for
purchases, redemptions or other acquisitions of capital stock or other
securities (1) required by the terms of the Company Benefit Plans, (2) in order
to pay Taxes or satisfy withholding obligations in respect of such Taxes in
connection with the exercise of Company Stock Options, or (3) as required by the
terms of, or necessary for the administration of, any plans, arrangements or
agreements existing on the date hereof between the Company or any of its
Subsidiaries and any director or employee of the Company or any of its
Subsidiaries and (ii) there are no outstanding stock-appreciation rights,
security-based performance units, "phantom" stock or other security rights or
other agreements, arrangements or commitments of any character (contingent or
otherwise) pursuant to which any Person is or may be entitled to receive any
payment or other value based on the stock price performance of the Company or
any of its Subsidiaries (other than under the Company Stock Plans) or to cause
the Company or any of its Subsidiaries to file a registration statement under
the Securities Act of 1933, as amended (the "Securities Act").
(e) Except as set forth in this Section 3.2, as of the date of this
Agreement, there are no outstanding obligations of the Company or any of its
Significant Subsidiaries (i) restricting the transfer of, (ii) affecting the
voting rights of, (iii) requiring the sales, issuance, repurchase, redemption or
disposition of, or containing any right of first refusal with respect to, (iv)
requiring the registration for sale of or (v) granting any preemptive or
antidilutive rights with respect to any shares of Company Common Stock, Company
Convertible Preferred Stock or other Equity Interests in the Company or any of
its Subsidiaries.
(f) Section 3.2(f) of the Company Disclosure Letter sets forth, as
of the date hereof, for each of the Company's Significant Subsidiaries: (i) its
authorized capital stock or other Equity Interests, (ii) the number of its
outstanding shares of capital stock or other Equity Interests and type(s) of
such outstanding shares of capital stock or other Equity Interests and (iii) the
record owner(s) thereof. The Company owns directly or indirectly, beneficially
and of record, all of the issued and outstanding shares of capital stock or
other Equity Interests of each of the Company's Significant Subsidiaries, free
and clear of any Liens other than Permitted Liens, and all of such shares of
capital stock or other Equity Interests have been duly authorized and validly
issued and are fully paid, nonassessable and free of preemptive rights. Except
for the ownership of Equity Interests in the Company's Subsidiaries and
investments in marketable securities and cash equivalents, none of the Company
or any of its Subsidiaries owns directly or indirectly any Equity Interest in
any Person, or has any obligation or has made any commitment to acquire any such
Equity Interest, to provide funds to, or to make any investment (in the form of
a loan, capital contribution or otherwise) in, any of its Subsidiaries or any
other Person that is or would reasonably be expected to be material to the
Company and its Subsidiaries, taken as a whole.
Section 3.3 Corporate Authority.
(a) The Company has all requisite corporate power and authority and
has taken all corporate action necessary in order to execute, deliver and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby, subject, assuming the accuracy of the representations and
warranties of Parent and Merger Sub set forth in Section 4.14, only to the
adoption of this Agreement by the affirmative vote of the holders of a majority
in voting power of the outstanding shares of Company Common Stock and Company
Convertible Preferred Stock, voting together as a single class (the "Company
Requisite Vote"), and to the filing and recording of the Certificate of Merger
under the provisions of the DGCL. The Company Requisite Vote is the only vote of
the holders of any class or series of capital stock of the Company necessary to
adopt, approve or authorize this Agreement, the Merger and the other
transactions contemplated by this Agreement. This Agreement has been duly
authorized and validly executed and delivered by the Company and, assuming due
authorization, execution and delivery by Parent and Merger Sub, constitutes a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar Laws of general
applicability relating to or affecting creditors' rights and to general equity
principles (the "Bankruptcy and Equity Exception").
(b) As of the date of this Agreement, the Board of Directors of the
Company (i) has, by resolution duly adopted at a meeting duly called and held,
approved and declared advisable this Agreement and the Merger and the other
transactions contemplated by this Agreement; (ii) has received the separate
opinions of each of the Company Financial Advisors (as defined in Section 3.19
below), dated the date of this Agreement, to the effect that, as of such date
and subject to assumptions, qualifications and limitations set forth therein,
the Common Stock Merger Consideration to be received by the holders of the
Company Common Stock pursuant to the Merger is fair from a financial point of
view to such holders; (iii) has resolved to recommend adoption of this Agreement
to the stockholders of the Company; and (iv) has directed that this Agreement be
submitted to the holders of Company Common Stock and Company Convertible
Preferred Stock for adoption.
(c) Assuming the accuracy of the representations and warranties of
Parent and Merger Sub set forth in Section 4.14, no "fair price," "moratorium,"
"control share acquisition" or other similar anti-takeover statute or regulation
(each, a "Takeover Statute") or any anti-takeover provision in the Company's
certificate of incorporation and bylaws is, or at the Effective Time will be,
applicable to the Company Common Stock, the Merger or the other transactions
contemplated by this Agreement. Assuming the accuracy of the representations and
warranties of Parent and Merger Sub set forth in Section 4.14, the Board of
Directors of the Company has taken all action so that Parent will not be
prohibited from entering into a "business combination" with the Company (as such
term is used in Section 203 of the DGCL) as a result of the execution of this
Agreement, or the consummation of the Merger or the other transactions
contemplated hereby, without any further action on the part of the Company
stockholders or the Board of Directors of the Company.
Section 3.4 Governmental Filings; No Violations, Etc.
(a) Except for the reports, registrations, consents, approvals,
permits, authorizations, notices and/or filings (i) pursuant to Section 1.3 of
this Agreement, (ii) under the Hart-Scott-Rodino Antitrust Improvement Act of
1976 (the "HSR Act"), the Securities Act, the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), the EC Merger Regulation and the China
Anti-Monopoly Law, (iii) required to be made with the New York Stock Exchange
(the "NYSE"), (iv) for or pursuant to other applicable foreign securities Law
approvals, state securities, takeover and "blue sky" laws, (v) required to be
made with or to those foreign Governmental Entities (as defined below)
regulating competition and antitrust Laws, (vi) required to be made under any
Environmental Law and (vii) pursuant to the rules and regulations of the FDA and
similar foreign Governmental Entities, no notices, reports or other filings are
required to be made by the Company with, nor are any registrations, consents,
approvals, permits or authorizations required to be obtained by the Company
from, any governmental or regulatory authority, agency, commission, body or
other governmental entity ("Governmental Entity"), in connection with the
execution and delivery of this Agreement by the Company and the consummation by
the Company of the Merger and the other transactions contemplated by this
Agreement, except those that the failure to make or obtain would not reasonably
be expected to have, individually or in the aggregate, a Company Material
Adverse Effect.
(b) None of the execution, delivery or performance of this Agreement
by the Company, the consummation by the Company of the Merger or any other
transaction contemplated by this Agreement, or the Company's compliance with any
of the provisions of this Agreement will (with or without notice or lapse of
time, or both): (i) subject to obtaining the Company Requisite Vote, conflict
with or violate any provision of the Company's certificate of incorporation or
bylaws or any equivalent organizational or governing documents of any of the
Company's Significant Subsidiaries; (ii) assuming that all consents, approvals,
authorizations and permits described in this Section 3.4 have been obtained and
all filings and notifications described in this Section 3.4 have been made and
any waiting periods thereunder have terminated or expired, conflict with or
violate any Law or Order applicable to the Company or any of its Subsidiaries or
any of their respective properties or assets; or (iii) require any consent or
approval under, violate, conflict with, result in any breach of or any loss of
any benefit under, or constitute a default under, or result in termination or
give to others any right of termination, vesting, amendment, acceleration or
cancellation of, or result in the creation of a Lien, other than Permitted
Liens, upon any of the respective properties or assets of the Company or any of
its Subsidiaries pursuant to, any Contract, permit or other instrument or
obligation to which the Company or any of its Subsidiaries is a party or by
which they or any of their respective properties or assets may be bound or
affected, except, with respect to clauses (ii) and (iii), for any such
conflicts, violations, consents, approvals, authorizations, permits, breaches,
losses, defaults, other occurrences or Liens which would not reasonably be
expected to have, individually or in the aggregate, a Company Material Adverse
Effect.
Section 3.5 Company Reports; Financial Statements.
(a) Since January 1, 2006, the Company has timely filed or otherwise
furnished (as applicable) all registration statements, prospectuses, forms,
reports, definitive proxy statements, schedules, statements and documents
required to be filed by it under the Securities Act or the Exchange Act, as the
case may be, together with all certifications required pursuant to the
Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley Act") (such documents and any
other documents filed by the Company or any of its Subsidiaries with the SEC,
including exhibits and other information incorporated therein as they have been
supplemented, modified or amended since the time of filing, collectively, the
"Company SEC Documents"). As of their respective filing dates (or, if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing), the Company SEC Documents (i) did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements made therein, in light of
the circumstances under which they were made, not misleading and (ii) complied
in all material respects with the applicable requirements of the Exchange Act or
the Securities Act, as the case may be, the Sarbanes-Oxley Act and the
applicable rules and regulations of the SEC thereunder. None of the Company's
Subsidiaries is required to make any filings with the SEC. All of the audited
consolidated financial statements and unaudited consolidated interim financial
statements of the Company included in the Company SEC Documents (together with
the related notes and schedules thereto, collectively, the "Company Financial
Statements") (A) have been prepared from, and are in accordance with, the books
and records of the Company and the Company's Subsidiaries in all material
respects, (B) have been prepared in accordance with GAAP applied on a consistent
basis during the periods involved (except as may be indicated in the notes
thereto or, in the case of interim financial statements, for normal and
recurring year-end adjustments) and (C) fairly present in all material respects
the consolidated financial position and the consolidated results of operations,
cash flows and changes in stockholders' equity of the Company and its
Subsidiaries as of the dates and for the periods referred to therein.
(b) The Company is in compliance in all material respects with (i)
the applicable provisions of the Sarbanes-Oxley Act and (ii) the applicable
listing and corporate governance rules and regulations of the NYSE. Except as
permitted by the Exchange Act, including Sections 13(k)(2) and (3), since the
enactment of the Sarbanes-Oxley Act, neither the Company nor any of its
Affiliates has made, arranged, modified (in any material way), or forgiven
personal loans to any executive officer or director of the Company.
(c) The Company's disclosure controls and procedures (as defined in
Rules 13a-15(e) and 15d-15(e) of the Exchange Act), as required by Rules
13a-15(a) and 15d-15(a) of the Exchange Act, are designed to ensure that all
information required to be disclosed by the Company in the reports it files or
submits under the Exchange Act is made known to the chief executive officer and
the chief financial officer of the Company by others within the Company to allow
timely decisions regarding required disclosure as required under the Exchange
Act and is recorded, processed, summarized and reported within the time periods
specified by the SEC's rules and forms. The Company has evaluated the
effectiveness of the Company's disclosure controls and procedures and, to the
extent required by applicable Law, presented in any applicable Company SEC
Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto,
its conclusions about the effectiveness of the disclosure controls and
procedures as of the end of the period covered by such report or amendment based
on such evaluation. Based on its most recently completed evaluation of its
system of internal control over financial reporting prior to the date of this
Agreement, (i) to the Knowledge of the Company, the Company had no significant
deficiencies or material weaknesses in the design or operation of its internal
control over financial reporting that would reasonably be expected to adversely
affect the Company's ability to record, process, summarize and report financial
information and (ii) the Company does not have Knowledge of any fraud, whether
or not material, that involves management or other employees who have a
significant role in the Company's internal control over financial reporting.
(d) No attorney representing the Company or any of its Subsidiaries,
whether or not employed by the Company or any Subsidiary of the Company, has
reported to the Company's chief legal counsel or chief executive officer
evidence of a material violation of securities Laws, breach of fiduciary duty or
similar violation by the Company or any of its officers, directors, employees or
agents pursuant to Section 307 of the Sarbanes-Oxley Act.
(e) Since January 1, 2006, to the Knowledge of the Company, no
employee of the Company or any of its Subsidiaries has provided or is providing
information to any law enforcement agency or Governmental Entity regarding the
commission or possible commission of any crime or the violation or possible
violation of any applicable legal requirements of the type described in Section
806 of the Sarbanes-Oxley Act by the Company or any of its Subsidiaries.
(f) To the Knowledge of the Company, none of the Company SEC
Documents (other than confidential treatment requests) is the subject of ongoing
SEC review. The Company has made available to Parent true and complete copies of
all written comment letters from the staff of the SEC received since January 1,
2006 through the date of this Agreement relating to the Company SEC Documents
and all written responses of the Company thereto through the date of this
Agreement other than with respect to requests for confidential treatment. As of
the date of this Agreement, there are no outstanding or unresolved comments in
comment letters received from the SEC staff with respect to any Company SEC
Documents other than confidential treatment requests. To the Knowledge of the
Company, as of the date of this Agreement, there are no SEC inquiries or
investigations, other governmental inquiries or investigations or internal
investigations pending or threatened, in each case regarding any accounting
practices of the Company.
Section 3.6 Absence of Certain Changes. (a) Since September 30,
2008, the business of the Company and its Subsidiaries has been conducted in the
ordinary course in all material respects and (b) since December 31, 2007, there
has not been any event, occurrence, development or state of circumstances or
facts or condition that has had or would reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect.
Section 3.7 Litigation.
(a) There are no civil, criminal or administrative actions, suits,
claims, hearings, investigations or proceedings (collectively, "Actions")
pending or, to the Knowledge of the Company, threatened against the Company or
any of its Subsidiaries or any of their respective assets or properties that if
determined adversely to the Company would reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect.
(b) Neither the Company nor any of its Subsidiaries or, to the
Knowledge of the Company, any of their respective assets or properties, is
subject to any outstanding Order, writ, injunction, decree or arbitration
ruling, award or other finding that would reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect.
Section 3.8 Compliance with Laws. The Company and each of its
Subsidiaries are in compliance with all Laws or Orders, except where any such
failure to be in compliance has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse Effect. No
investigation or review by any Governmental Entity with respect to the Company
or any of its Subsidiaries is pending or, to the Knowledge of the Company,
threatened, nor has any Governmental Entity indicated an intention to conduct
the same which, in each case, would reasonably be expected to have a material
and adverse impact on the Company. To the Knowledge of the Company, the Company
is in material compliance with the Foreign Corrupt Practices Act of 1977, as
amended, and any rules and regulations thereunder.
Section 3.9 Properties. Except as would not have, or would not
reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect, the Company or one of its Subsidiaries, as the case may
be, (i) holds good, marketable and valid fee simple title to all of the
properties and assets reflected in the September 30, 2008 balance sheet included
in the Company SEC Documents as being owned by the Company or one of its
Subsidiaries (collectively, with respect to real property, the "Owned Real
Property") or acquired after the date thereof that are material to the Company's
business on a consolidated basis (except for properties and assets sold or
otherwise disposed of since the date thereof in the ordinary course of
business), free and clear of all Liens, except for Permitted Liens and other
matters described in Section 3.9 of the Company Disclosure Letter, (ii) holds
the Owned Real Property, or any portion thereof or interest therein, free of any
outstanding options or rights of first refusal or offer to purchase or lease,
(iii) is the lessee of all leasehold estates reflected in the September 30, 2008
financial statements included in the Company SEC Documents or acquired after the
date thereof that are material to the Company's business on a consolidated basis
(except for leases that have expired by their terms since the date thereof or
been assigned, terminated or otherwise disposed of in the ordinary course of
business) (collectively, with respect to real property, the "Leased Real
Property") and (x) is in possession of the properties purported to be leased
thereunder, and each such lease is valid and in full force and effect,
constitutes a valid and binding obligation of the Company or the applicable
Subsidiary of the Company, subject to the Bankruptcy and Equity Exception and
(y) the Company has not received any written notice of termination or
cancellation of or of a breach or default under any such lease.
Section 3.10 Contracts.
(a) As of the date hereof, except as set forth as an exhibit to the
Company SEC Documents and on Section 3.10(a) of the Company Disclosure Letter,
neither the Company nor any of its Subsidiaries is a party to or bound by any:
(i) Contract relating to third-party indebtedness for borrowed money
or any third-party financial guaranty in excess of $500,000,000;
(ii) non-competition agreements or any other agreements or
arrangements that materially limit or otherwise materially restrict the
Company or any of its Subsidiaries or any of their respective Affiliates
or any successor thereto or that, to the Knowledge of the Company, would,
after the Effective Time, limit or restrict Parent or any of its
Subsidiaries (including the Surviving Corporation) or any successor
thereto, in each case from engaging or competing in any line of business
or in any geographic area or, in the case of the pharmaceutical business,
any therapeutic area, class of drugs or mechanism of action, which
agreement or arrangements would reasonably be expected to materially
limit, materially restrict or materially conflict with the business of
Parent and its Subsidiaries, taken as a whole (including for purposes of
such determination, the Surviving Corporation and its Subsidiaries), after
giving effect to the Merger; or
(iii) Contract required to be filed as an exhibit to the Company's
Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K
under the Securities Act.
(b) All Contracts of the type described in clauses (a)(i), (ii) and
(iii) above to which the Company or any of its Subsidiaries is a party to or
bound by as of the date of this Agreement, together with the Contracts set forth
on Section 3.10(b) of the Company Disclosure Letter, are referred to herein as
the "Company Material Contracts" (provided that for purposes of Section 5.1,
Contracts of the type referred to in clause (i) above shall not be deemed to be
Company Material Contracts). Except, in each case, as has not, and would not
reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect: (i) all Company Material Contracts are valid and
binding on the Company and/or the relevant Subsidiary of the Company that is a
party thereto and, to the Knowledge of the Company, each other party thereto,
subject to the Bankruptcy and Equity Exception, (ii) all Company Material
Contracts are in full force and effect, (iii) the Company and each of its
Subsidiaries has performed all material obligations required to be performed by
them under the Company Material Contracts to which they are parties, (iv) to the
Knowledge of the Company, each other party to a Company Material Contract has
performed all material obligations required to be performed by it under such
Company Material Contract and (v) no party to any Company Material Contract has
given the Company or any of its Subsidiaries written notice of its intention to
cancel, terminate, change the scope of rights under or fail to renew any Company
Material Contract and neither the Company nor any of its Subsidiaries, nor, to
the Knowledge of the Company, any other party to any Company Material Contract,
has repudiated in writing any material provision thereof. Neither the Company
nor any of its Subsidiaries has Knowledge of, or has received written notice of,
any violation or default under (or any condition which with the passage of time
or the giving of notice would cause such a violation of or default under or
permit termination, modification or acceleration under) any Company Material
Contract or any other Contract to which it is a party or by which it or any of
its material properties or assets is bound, except for violations or defaults
that are not, individually or in the aggregate, reasonably likely to result in a
Company Material Adverse Effect.
Section 3.11 Employee Benefit Plans.
(a) Section 3.11(a) of the Company Disclosure Letter, sets forth a
true, complete and correct list of each material "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA") (whether or not subject to ERISA), and any other material
plan, policy, program practice, agreement, understanding or arrangement (whether
written or oral) providing compensation or other benefits to any current or
former director, officer, employee or consultant (or to any dependent or
beneficiary thereof) of the Company or any ERISA Affiliate, which are now
maintained, sponsored or contributed to by the Company or any ERISA Affiliate,
or under which the Company or any ERISA Affiliate has any material obligation or
liability, whether actual or contingent, including all incentive, bonus,
deferred compensation, vacation, holiday, cafeteria, medical, disability, stock
purchase, stock option, stock appreciation, phantom stock, restricted stock,
restricted stock unit, stock-based compensation, change-in-control, retention,
employment, consulting, personnel or severance policies, programs, practices,
Contracts or arrangements (each, a "Company Benefit Plan"), excluding Foreign
Benefit Plans. For purposes of this Agreement, the term "Foreign Benefit Plans"
shall mean those Company Benefit Plans maintained, sponsored or contributed to
primarily for the benefit of current or former employees of the Company or any
ERISA Affiliate who are or were regularly employed outside the United States
(but which shall exclude any such Company Benefit Plans to the extent required
by applicable foreign law to be so maintained, sponsored or contributed to). Not
more than twenty (20) Business Days after the date hereof, the Company shall
deliver a true, complete and correct list of each material Foreign Benefit Plan
to Parent. For purposes of this Section 3.11, "ERISA Affiliate" shall mean any
entity (whether or not incorporated) that, together with any other entity, is
considered under common control and treated as one employer under Sections
414(b) or (c) of the Code. The Company has no express or implied commitment to
terminate or modify or change any Company Benefit Plan in the United States,
other than with respect to a termination, modification or change required by
ERISA or the Code or which would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect.
(b) With respect to each Company Benefit Plan (other than any
Foreign Benefit Plan), the Company has made available to Parent (or, with
respect to items (iv), (v), (vi) and (vii), will provide to Parent not more than
twenty (20) Business Days after the date hereof) true, complete and correct
copies of the following (as applicable): (i) the written document evidencing
such Company Benefit Plan or, with respect to any such plan that is not in
writing, a written description of the material terms thereof; (ii) the summary
plan description; (iii) the most recent annual report, financial statement
and/or actuarial report; (iv) the most recent determination letter from the
Internal Revenue Service (the "IRS" ); (v) the most recent Form 5500 required to
have been filed with the IRS, including all schedules thereto; (vi) any related
trust agreements, insurance contracts or other funding arrangements; (vii) any
notices to or from the IRS or any office or representative of the Department of
Labor or Pension Benefit Guaranty Corporation ("PBGC") relating to any
unresolved compliance issues in respect of any such Company Benefit Plan; and
(viii) all material amendments, modifications or supplements to any Company
Benefit Plan. With respect to each Foreign Benefit Plan, the Company will
provide to Parent not more than twenty (20) Business Days after the date hereof
the items identified in each of clauses (i), (vi) and (viii) above.
(c) Except as would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect, each Company
Benefit Plan has been administered in accordance with its terms, applicable Law
(including Section 409A of the Code) and any applicable collective bargaining
agreement including timely filing of all Tax, annual reporting and other
governmental filings required by ERISA and the Code and timely contribution (or,
if not yet due, proper financial reporting) of any amounts required to be made
under the terms of any of the Company Benefit Plans as of the date of this
Agreement. With respect to each of the Company Benefit Plans, no event has
occurred and there exists no condition or set of circumstances in connection
with which the Company or any of its Subsidiaries would be subject to any
liability that, individually or in the aggregate, would reasonably be expected
to have a Company Material Adverse Effect. Each Company Benefit Plan that is
intended to be "qualified" under Section 401 of the Code has received a
favorable determination letter from the IRS to such effect and, to the Knowledge
of the Company, no fact, circumstance or event has occurred or exists since the
date of such determination letter that would reasonably be expected to adversely
affect the qualified status of any such Company Benefit Plan. Except as would
not, individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect, none of the Company or any of its Subsidiaries has
received notice of and, to the Knowledge of the Company, there are no audits or
investigations by any Governmental Entity with respect to, or other actions,
claims, suits or other proceedings against or involving any Company Benefit Plan
or asserting rights or claims to benefits under any Company Benefit Plan (other
than routine claims for benefits payable in the normal course). Other than as
set forth on Section 3.11(c) of the Company Disclosure Letter, each Company
Benefit Plan subject to ERISA that provides retiree healthcare or life insurance
benefits in the United States provides by its terms that it may be amended or
terminated without material liability to the Company or any of its Subsidiaries
at any time after the Effective Time (other than as required by applicable Law).
(d) No Company Benefit Plan is a "multiemployer plan" (as defined in
Sections 3(37) and 4001(a)(3) of ERISA) or a "multiple employer plan" within the
meaning of Sections 4063/4064 of ERISA or Section 413(c) of the Code and neither
the Company nor any ERISA Affiliate has sponsored or contributed to or been
required to contribute to a "multiemployer plan" or "multiple employer plan."
(e) Except as set forth on Section 3.11(e) of the Company Disclosure
Letter, neither the Company nor any ERISA Affiliate maintains or contributes to,
or during the six-year period prior to the date hereof has maintained or
contributed to, any "employee benefit plan" within the meaning of Section 3(3)
of ERISA that is subject to Section 412 of the Code or Section 302 or Title IV
of ERISA. Except as would not have, individually or in the aggregate, a Company
Material Adverse Effect, with respect to each plan set forth on Schedule 3.11(e)
of the Company Disclosure Letter that is subject to Section 412 of the Code or
Section 302 of Title IV of ERISA: (i) there does not exist any accumulated
funding deficiency within the meaning of Section 412 of the Code or Section 302
of ERISA, whether or not waived; (ii) there has been no "reportable event"
within the meaning of Section 4043 of ERISA and the regulations thereunder which
required a notice to the PBGC which has not been fully and accurately reported
in a timely fashion, as required, or which, whether or not reported, would
constitute grounds for the PBGC to institute involuntary termination proceedings
with respect to any Company Benefit Plan that is subject to Title IV of ERISA;
(iii) all premiums to the PBGC have been timely paid in full; (iv) there has not
been a partial termination; and (v) none of the following events has occurred:
(A) the filing of a notice of intent to terminate, (B) the treatment of an
amendment to such a Company Benefit Plan as a termination under Section 4041 of
ERISA or (C) the commencement of proceedings by the PBGC to terminate such a
Company Benefit Plan and, to the Knowledge of the Company, no condition exists
that presents a substantial risk that such proceedings will be instituted or
which would constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any such plan.
(f) Except as set forth on Section 3.11(f) of the Company Disclosure
Letter, the execution of this Agreement or the consummation of the Merger will
not constitute an event that, either alone or in conjunction with any other
event, will or may result in (i) any payment, acceleration, termination,
forgiveness of indebtedness, vesting, distribution, increase in compensation or
benefits or obligation to fund benefits with respect to any current or former
employee or other personnel of the Company or any of its Subsidiaries, (ii) any
amount failing to be deductible by reason of Section 280G of the Code or (iii)
the provision of any reimbursement of excise Taxes under Section 4999 of the
Code or any income Taxes under the Code.
(g) Except as would not have, individually or in the aggregate, a
Company Material Adverse Effect, (i) each Foreign Benefit Plan has been
established, maintained and administered in compliance with its terms and all
applicable Laws and Orders of any controlling Governmental Entity; (ii) each
Foreign Benefit Plan required to be registered has been registered and has been
maintained in good standing with applicable regulatory authorities; and (iii)
each Foreign Benefit Plan required to be funded and/or book reserved is funded
and/or book reserved, as appropriate, in accordance with applicable Law.
Section 3.12 Labor Matters. Each of the Company and its Subsidiaries
is in compliance with all applicable Laws of the United States, or of any state
or local government or any subdivision thereof or of any foreign government
respecting employment and employment practices, terms and conditions of
employment, wages and hours and occupational safety and health, including the
Immigration Reform and Control Act, the Worker Adjustment Retraining and
Notification Act, any Laws respecting employment discrimination, sexual
harassment, disability rights or benefits, equal opportunity, plant closure
issues, affirmative action, workers' compensation, employee benefits, severance
payments, COBRA, labor relations, employee leave issues, wage and hour
standards, occupational safety and health requirements and unemployment
insurance and related matters, except where any such failure to be in compliance
has not had, or would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect. Except as specifically identified
on Section 3.12 of the Company Disclosure Letter, neither the Company nor any of
its Subsidiaries is a party to or bound by any labor or collective bargaining
agreement (other than any industry-wide or statutorily mandated agreement or
non-material agreement in a non-U.S. jurisdiction). There is no unfair labor
practice charge pending or, to the Knowledge of the Company, threatened which if
determined adversely to the Company or its Subsidiaries would reasonably be
expected to have a Company Material Adverse Effect. Except as would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect, (i) to the Knowledge of the Company, there are no
organizational campaigns, petitions or other activities or proceedings of any
labor union, workers' council or labor organization seeking recognition of a
collective bargaining unit with respect to, or otherwise attempting to
represent, any of the employees of the Company or any of its Subsidiaries or
compel the Company or any of its Subsidiaries to bargain with any such labor
union, works council or labor organization, (ii) there are no strikes,
slowdowns, walkouts, work stoppages or other labor-related controversies pending
or, to the Knowledge of the Company, threatened and (iii) neither the Company
nor any of its Subsidiaries has experienced any such strike, slowdown, walkout,
work stoppage or other labor-related controversy within the past three (3)
years.
Section 3.13 Tax.
(a) Except to the extent reserved for in the most recent Company
Financial Statements, the Company and each of its Subsidiaries have timely
filed, or have caused to be timely filed, all material Tax Returns required to
be filed, all such Tax Returns are true, complete and accurate in all material
respects, and all material amounts of Taxes shown to be due on such Tax Returns,
or otherwise owed, have been or will be timely paid.
(b) Except as would not have and would not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse Effect, (i)
no Tax authority has asserted, or threatened in writing to assert, a Tax
liability (exclusive of interest) in excess of $25 million in connection with an
audit or other administrative or court proceeding involving Taxes of the Company
or any of its Subsidiaries, (ii) neither the Company nor any of its Subsidiaries
has distributed stock of another corporation or has had its stock distributed in
a transaction that was purported or intended to be governed, in whole or in
part, by Section 355 or Section 361 of the Code within the preceding five (5)
years, (iii) neither the Company nor any of its Subsidiaries has participated,
or is currently participating, in a "listed transaction" as defined in Treasury
Regulations Section 1.6011-4(b), and (iv) neither the Company nor any of its
Subsidiaries is a party to any agreement or arrangement relating to the
apportionment, sharing, assignment or allocation of Taxes (other than an
agreement or arrangement solely among the members of a group the common parent
of which is the Company or any of its Subsidiaries), or has any liability for
Taxes of any Person (other than the Company or any of its Subsidiaries) under
Treasury Regulations Section 1.1502-6 or any similar provision of state, local
or foreign Law, as a transferee or successor, by contract or otherwise.
Section 3.14 Intellectual Property.
(a) Except as, in the aggregate, would not reasonably be expected to
have a Company Material Adverse Effect, (i) to the Company's Knowledge, the
Company and each of its Subsidiaries owns, or is licensed to use (in each case,
free and clear of any Liens), all Intellectual Property used in or necessary for
the conduct of its business as currently conducted; (ii) to the Company's
Knowledge, the use of any Intellectual Property by the Company and its
Subsidiaries does not infringe on or otherwise violate the rights of any Person
and is in accordance with any applicable license pursuant to which the Company
or any Subsidiary acquired the right to use any Intellectual Property; (iii) to
the Company's Knowledge, no Person is challenging, infringing on or otherwise
violating any right of the Company or any of its Subsidiaries with respect to
any Intellectual Property owned by and/or licensed to the Company or its
Subsidiaries; and (iv) to the Company's Knowledge, neither the Company nor any
of its Subsidiaries has received any written notice or otherwise has Knowledge
of any pending claim, order or proceeding with respect to any Intellectual
Property used by the Company and its Subsidiaries and to its Knowledge no
Intellectual Property owned and/or licensed by the Company or its Subsidiaries
is being used or enforced in a manner that would reasonably be expected to
result in the abandonment, cancellation or unenforceability of such Intellectual
Property. For purposes of this Agreement, "Intellectual Property" shall mean
trademarks, service marks, brand names, certification marks, trade dress and
other indications of origin, the goodwill associated with the foregoing and
registrations in any domestic or foreign jurisdiction of, and applications in
any such jurisdiction to register, the foregoing, including any extension,
modification or renewal of any such registration or application; inventions,
discoveries and ideas, whether patentable or not, in any domestic or foreign
jurisdiction; patents, applications for patents (including, without limitation,
divisions, continuations, continuations in part and renewal applications), and
any renewals, extensions or reissues thereof, in any such jurisdiction;
nonpublic information, trade secrets and confidential information and rights in
any domestic or foreign jurisdiction to limit the use or disclosure thereof by
any person; writings and other works, whether copyrightable or not, in any such
jurisdiction; and registrations or applications for registration of copyrights
in any domestic or foreign jurisdiction, and any renewals or extensions thereof;
and any similar intellectual property or proprietary rights.
(b) The Company and its Subsidiaries have taken reasonable steps to
protect the confidentiality and value of all trade secrets and any other
confidential information that are owned, used or held by the Company and its
Subsidiaries in confidence, including entering into licenses and Contracts that
require employees, licensees, contractors, and other Persons with access to
trade secrets or other confidential information to safeguard and maintain the
secrecy and confidentiality of such trade secrets. To the Company's Knowledge,
such trade secrets have not been used, disclosed to or discovered by any Person
except pursuant to valid and appropriate non-disclosure, license or any other
appropriate Contract which has not been breached.
Section 3.15 Environmental Matters.__
(a) The Company and its Subsidiaries are in compliance with all
applicable Environmental Laws, and to the Company's Knowledge any past
non-compliance by the Company and its Subsidiaries with applicable Environmental
Laws has been resolved, except for any failure to comply or to resolve past
non-compliance that would not reasonably be expected to have, individually or in
the aggregate, a Company Material Adverse Effect.
(b) Except as would not reasonably be expected to have, individually
or in the aggregate, a Company Material Adverse Effect: (i) each of the Company
and its Subsidiaries has obtained, maintained and complied with all
Environmental Permits necessary for the conduct and operation of its business as
currently operated, and the Company or any applicable Subsidiary of the Company
has not received any notice that any such Environmental Permit is not in full
force and effect; and (ii) no such Environmental Permit is or will be subject to
review, revision, major modification or prior consent by any Governmental
Authority as a result of the consummation of the transactions contemplated by
this Agreement.
(c) None of the Company or any of its Subsidiaries has received any
notice of any violation of or liability under Environmental Laws, which would
reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect.
(d) There are no pending or, to the Company's Knowledge, threatened
civil, criminal or administrative claims, actions, proceedings, hearings,
notices of violation, investigations, arbitrations or demand letters pursuant to
Environmental Laws or with respect to Hazardous Materials against the Company or
any of its Subsidiaries or, to the Company's Knowledge, related to the Owned
Real Property, the Leased Real Property or any other facility previously owned
or operated by the Company or any of its Subsidiaries which would reasonably be
expected to have, individually or in the aggregate, a Company Material Adverse
Effect.
(e) To the Company's Knowledge, there has been no presence of
storage tanks at or presence or release of any Hazardous Materials on, at, or
from the Owned Real Property or the Leased Real Property or any other facility
operated by the Company or any of its Subsidiaries, except (i) in compliance
with applicable Environmental Laws and (ii) in a manner or in quantities or
locations that would not require any investigation, cleanup or remediation of
soil or groundwater under applicable Environmental Laws, other than any presence
or release which would not reasonably be expected to have, individually or in
the aggregate, a Company Material Adverse Effect; and neither the Company nor
any of its Subsidiaries has received notice with respect to such presence or
release.
(f) Neither (i) the Company nor any Subsidiary, (ii) any
predecessors of the Company or any Subsidiary nor (iii) any entity previously
owned by the Company or any Subsidiary, has transported or arranged for the
treatment, storage, handling, disposal or transportation of any Hazardous
Material at or to any off-site location which, to the Company's Knowledge, has
resulted in, or would be reasonably expected to result in, a liability to the
Company that has had, or would reasonably be expected to have, individually or
in the aggregate, a Company Material Adverse Effect.
(g) There are no Liens or institutional or engineering controls
applicable to any Owned Real Property or, to the Company's Knowledge, Leased
Real Property arising out of or pursuant to Environmental Laws that have had, or
would reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect.
(h) To the Company's Knowledge, there are no other facts,
activities, circumstances or conditions that have resulted in or would be
reasonably expected to result in, the Company incurring a liability or
obligation, pursuant to any applicable Environmental Laws that has had, or would
reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect.
Section 3.16 Insurance. Except as has not had, and would not
reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect, (i) each insurance policy under which the Company or
any of its Subsidiaries is an insured or otherwise the principal beneficiary of
coverage (collectively, the "Insurance Policies") is in full force and effect,
all premiums due thereon have been paid in full and the Company and its
Subsidiaries are in compliance with the terms and conditions of such Insurance
Policy, except as has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect, (ii)
neither the Company nor any of its Subsidiaries is in breach or default under
any Insurance Policy, and (iii) no event has occurred which, with notice or
lapse of time, would constitute such breach or default, or permit termination or
modification, under the policy.
Section 3.17 Regulatory Compliance.
(a) Except as has not had, and would not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse Effect, each
of the Company and its Significant Subsidiaries holds all licenses, permits,
franchises, variances, registrations, exemptions, Orders and other governmental
authorizations, consents, approvals and clearances, and has submitted notices
to, all Governmental Entities, including all authorizations under the Federal
Food, Drug and Cosmetic Act of 1938, as amended (the "FDCA"), the Public Health
Service Act of 1944, as amended (the "PHSA"), and the regulations of the United
States Food and Drug Administration (the "FDA") promulgated thereunder, and any
other Governmental Entity that is concerned with the quality, identity,
strength, purity, safety, efficacy or manufacturing of the Company Products (any
such Governmental Entity, a "Company Regulatory Agency") necessary for the
lawful operating of the businesses of the Company or any of its Subsidiaries
(the "Company Permits"), and all such Company Permits are valid, and in full
force and effect. Since January 1, 2006, there has not occurred any violation
of, default (with or without notice or lapse of time or both) under, or event
giving to others any right of termination, amendment or cancellation of, with or
without notice or lapse of time or both, any Company Permit except as has not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect. The Company and each of its
Subsidiaries are in compliance in all material respects with the terms of all
Company Permits, and no event has occurred that, to the Knowledge of the
Company, would reasonably be expected to result in the revocation, cancellation,
non-renewal or adverse modification of any Company Permit, except as has not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
(b) Except as would not reasonably be expected to have, individually
or in the aggregate, a Company Material Adverse Effect, since January 1, 2006,
all applications, submissions, information and data utilized by the Company or
the Company's Subsidiaries as the basis for, or submitted by or, to the
Knowledge of the Company, on behalf of the Company or the Company's Subsidiaries
in connection with, any and all requests for a Company Permit relating to the
Company or any of its Subsidiaries, and its respective business and Company
Products, when submitted to the FDA or other Company Regulatory Agency, were
true and correct in all material respects as of the date of submission, and any
updates, changes, corrections or modification to such applications, submissions,
information and data required under applicable Laws have been submitted to the
FDA or other Company Regulatory Agency.
(c) Since January 1, 2006, neither the Company, nor any of its
Subsidiaries, has committed any act, made any statement or failed to make any
statement that would reasonably be expected to provide a basis for the FDA or
any other Company Regulatory Agency to invoke its policy with respect to "Fraud,
Untrue Statements of Material Facts, Bribery, and Illegal Gratuities", or
similar policies, set forth in any applicable Laws, except as has not had, and
would not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect.
(d) For the avoidance of doubt, the provisions of this Section 3.17
do not apply to Environmental Laws or Environmental Permits.
Section 3.18 Interested Party Transactions. Since January 1, 2006,
there have been no transactions, agreements, arrangements or understandings
between the Company or any of its Subsidiaries on the one hand, and the
Affiliates of the Company on the other hand (other than the Company's
Subsidiaries), that would be required to be disclosed under Item 404 under
Regulation S-K under the Exchange Act and that has not been so disclosed.
Section 3.19 Brokers and Finders. Neither the Company nor any of
its Subsidiaries has employed any broker or finder or incurred any liability for
any brokerage fees, commissions or finders fees in connection with the Merger or
the other transactions contemplated by this Agreement, except that the Company
has employed Morgan Stanley & Co. Incorporated and Evercore Group L.L.C. as its
financial advisors (the "Company Financial Advisors"), and the Company has
heretofore made available to Parent a true and complete copy of all agreements
between the Company and the Company Financial Advisors pursuant to which such
firm would be entitled to any payment relating to the Merger and the other
transactions contemplated by this Agreement.
Section 3.20 No Additional Representations.
(a) Except for the representations and warranties made by the
Company in this Article III, neither the Company nor any other Person makes any
express or implied representation or warranty with respect to the Company or its
Subsidiaries or their respective businesses, operations, assets, liabilities,
conditions (financial or otherwise) or prospects, and the Company hereby
disclaims any such other representations or warranties. In particular, without
limiting the foregoing disclaimer, neither the Company nor any other Person
makes or has made any representation or warranty to Parent, Merger Sub, or any
of their Affiliates or Representatives with respect to (i) any financial
projection, forecast, estimate, budget or prospect information relating to the
Company, any of its Subsidiaries or their respective businesses, or (ii) except
for the representations and warranties made by the Company in this Article III,
any oral or written information presented to Parent, Merger Sub or any of their
Affiliates or Representatives in the course of their due diligence investigation
of the Company, the negotiation of this Agreement or in the course of the
transactions contemplated hereby.
(b) The Company acknowledges and agrees that it (i) has had the
opportunity to meet with the management of Parent and to discuss the business,
assets and liabilities of Parent and its Subsidiaries, (ii) has been afforded
the opportunity to ask questions of and receive answers from officers of Parent
and (iii) has conducted its own independent investigation of Parent and its
Subsidiaries, their respective businesses, assets, liabilities and the
transactions contemplated by this Agreement.
(c) Notwithstanding anything contained in this Agreement to the
contrary, the Company acknowledges and agrees that none of Parent, Merger Sub or
any other Person has made or is making any representations or warranties
relating to Parent or Merger Sub whatsoever, express or implied, beyond those
expressly given by Parent and Merger Sub in Article IV hereof, including any
implied representation or warranty as to the accuracy or completeness of any
information regarding Parent furnished or made available the Company, or any of
its Representatives. Without limiting the generality of the foregoing, the
Company acknowledges that no representations or warranties are made with respect
to any projections, forecasts, estimates, budgets or prospect information that
may have been made available to the Company or any of its Representatives.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except (i) as disclosed in the Parent SEC Documents filed since January 1,
2008 but prior to the date hereof (but excluding any risk factor disclosures
contained under the heading "Risk Factors," any disclosure of risks included in
any "forward-looking statements" disclaimer or any other statements that are
similarly non-specific or predictive or forward-looking in nature, in each case,
other than any specific factual information contained therein) or (ii) as set
forth in the Parent Disclosure Letter delivered by Parent to the Company prior
to the execution of this Agreement (the "Parent Disclosure Letter"), which
identifies items of disclosure by reference to a particular section or
subsection of this Agreement (provided, however, that any information set forth
in one section of such Parent Disclosure Letter also shall be deemed to apply to
each other section and subsection of this Agreement to which its relevance is
reasonably apparent), each of Parent and Merger Sub hereby represents and
warrants to the Company as follows:
Section 4.1 Organization, Good Standing and Qualification. Each of
Parent and Merger Sub and Parent's Significant Subsidiaries is a corporation
duly organized, validly existing and in good standing (with respect to
jurisdictions that recognize the concept of good standing) under the Laws of its
respective jurisdiction of organization and has all requisite corporate or
similar power and authority to own, lease and operate its properties and assets
and to carry on its business as presently conducted, except with respect to
Parent's Subsidiaries, where the failure to be so organized, qualified or in
good standing or to have such power or authority when taken together with all
other such failures, has not, and would not reasonably be expected to have,
individually or in the aggregate, a Parent Material Adverse Effect. Each of
Parent and its Significant Subsidiaries is duly qualified or licensed to do
business and is in good standing (with respect to jurisdictions that recognize
the concept of good standing) as a foreign corporation in each jurisdiction
where the ownership, leasing or operation of its assets or properties or conduct
of its business requires such qualification, except where the failure to be so
organized, qualified or in good standing or to have such power or authority when
taken together with all other such failures, has not, and would not reasonably
be expected to have, individually or in the aggregate, a Parent Material Adverse
Effect.
Section 4.2 Capital Structure.
(a) As of January 23, 2009, the authorized capital stock of Parent
consisted of (i) 12,000,000,000 shares of Parent Common Stock of which
7,357,577,519 shares were outstanding and 1,504,695,838 shares were held in the
treasury of Parent and (ii) 27,000,000 shares of Preferred Stock, no par value,
of which 1,805 shares were outstanding and no shares were held in the treasury
of Parent. There are no other classes of capital stock of Parent authorized or
outstanding. All issued and outstanding shares of the capital stock of Parent
are, and when shares of Parent Common Stock and Parent Convertible Preferred
Stock are issued in connection with the Merger or pursuant to Section 1.8 and
Section 1.9, such shares will be, duly authorized, validly issued, fully paid
and non-assessable and free of any preemptive rights.
(b) Since January 23, 2009 to the date of this Agreement, there have
been no issuances of shares of the capital stock or equity securities of Parent
or any other securities of Parent other than issuances of shares of Parent
Common Stock pursuant to employee benefit, director or equity compensation
plans, programs or arrangements sponsored or maintained by Parent or any of its
Subsidiaries (the "Parent Benefit Plans"). There were outstanding as of December
31, 2008 no options, warrants, calls, commitments, agreements, arrangements,
undertakings or any other rights to acquire capital stock from Parent other than
options, restricted stock and other rights to acquire capital stock from Parent
representing in the aggregate the right to purchase approximately 476,000,000
shares of Parent Common Stock under the Parent Benefit Plans. No options,
warrants, calls, commitments, agreements, arrangements, undertakings or other
rights to acquire capital stock from Parent have been issued or granted since
December 31, 2008 to the date of this Agreement other than pursuant to the
Parent Benefit Plans or the ordinary course of business in connection with
employment offer letters.
(c) No bonds, debentures, notes or other indebtedness of Parent
having the right to vote (or convertible into or exercisable for securities
having the right to vote) on any matters on which holders of capital stock of
Parent may vote are issued or outstanding.
(d) Except as otherwise set forth in this Section 4.2, as of the
date of this Agreement, (i) there are no outstanding obligations of Parent or
any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of
capital stock of Parent or any of its Subsidiaries except for purchases,
redemptions or other acquisitions of capital stock or other securities (1)
required by the terms of the Parent Benefit Plans, (2) in order to pay Taxes or
satisfy withholding obligations in respect of such Taxes in connection with the
exercise of Parent stock options, the lapse of restrictions or settlement of
awards granted pursuant to the Parent Benefit Plans, or (3) required by the
terms of any plans, arrangements or agreements existing on the date hereof
between the Parent or any of its Subsidiaries and any director or employee of
the Parent or any of its Subsidiaries and (ii) there are no outstanding
stock-appreciation rights, security-based performance units, "phantom" stock or
other security rights or other agreements, arrangements or commitments of any
character (contingent or otherwise) pursuant to which any Person is or may be
entitled to receive any payment or other value based on the stock price
performance of Parent or any of its Subsidiaries (other than ordinary course
payments or commissions to sales representatives of Parent based upon revenues
generated by them without augmentation as a result of the transactions
contemplated hereby and with respect to awards granted under the Parent Benefit
Plans).
(e) Except as set forth in Section 4.2(e) of the Parent Disclosure
Letter and with respect to awards granted under the Parent Benefit Plans, as of
the date of this Agreement, there are no outstanding obligations of Parent or
any of its Subsidiaries (i) restricting the transfer of, (ii) affecting the
voting rights of, (iii) requiring the sales, issuance, repurchase, redemption or
disposition of, or containing any right of first refusal with respect to, (iv)
requiring the registration for sale of or (v) granting any preemptive or
antidilutive rights with respect to, any shares of Parent Common Stock or other
Equity Interests in Parent or any of its Subsidiaries.
(f) The authorized capital stock of Merger Sub consists of 1,000
shares of common stock, par value $0.01 per share, all of which are validly
issued and outstanding. All of the issued and outstanding capital stock of
Merger Sub is, and at the Effective Time will be, owned by Parent, and there are
(i) no other shares of capital stock or voting securities of Merger Sub, (ii) no
securities of Merger Sub convertible into or exchangeable for shares of capital
stock or voting securities of Merger Sub and (iii) no options or other rights to
acquire from Merger Sub, and no obligations of Merger Sub to issue, any capital
stock, voting securities or securities convertible into or exchangeable for
capital stock or voting securities of Merger Sub.
Section 4.3 Corporate Authority. Each of Parent and Merger Sub has
all requisite corporate power and authority and, except for the adoption of this
Agreement by Parent as the sole stockholder of Merger Sub (which adoption Parent
shall effect on the date hereof immediately following the execution hereof), has
taken all corporate action necessary in order to execute, deliver and perform
its obligations under this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized and validly
executed and delivered by Parent and Merger Sub, except for the adoption of this
Agreement by Parent as the sole stockholder of Merger Sub, and, assuming due
authorization, execution and delivery by the Company, constitutes a legal, valid
and binding obligation of Parent enforceable against the Company in accordance
with its terms, subject to the Bankruptcy and Equity Exception.
Section 4.4 Governmental Filings; No Violations; Etc.
(a) Except for the reports, registrations, consents, approvals,
permits, authorizations, notices and/or filings (i) pursuant to Section 1.3 of
this Agreement, (ii) under the HSR Act, the Securities Act, the Exchange Act,
the EC Merger Regulation and the China Anti-Monopoly Law, (iii) required to be
made with the NYSE, (iv) for or pursuant to other applicable foreign securities
Law approvals, state securities, takeover and "blue sky" laws, (v) required to
be made with or to those foreign Governmental Entities regulating competition
and antitrust Laws, (vi) required to be made under any Environmental Law and
(vii) pursuant to the rules and regulations of the FDA and similar foreign
Governmental Entities, no notices, reports or other filings are required to be
made by Parent or Merger Sub with, nor are any registrations, consents,
approvals, permits or authorizations required to be obtained by Parent or Merger
Sub from, any Governmental Entity, in connection with the execution and delivery
of this Agreement by Parent or Merger Sub and the consummation by Parent and
Merger Sub of the Merger and the other transactions contemplated by this
Agreement, except those that the failure to make or obtain would not reasonably
be expected to have, individually or in the aggregate, a Parent Material Adverse
Effect.
(b) None of the execution, delivery or performance of this Agreement
by Parent or Merger Sub, the consummation by the Company and Merger Sub of the
Merger or any other transaction contemplated by this Agreement, or Parent's or
Merger Sub's compliance with any of the provisions of this Agreement will (with
or without notice or lapse of time, or both): (i) conflict with or violate any
provision of Parent's or Merger Sub's certificate of incorporation or bylaws or
any equivalent organizational or governing documents of any of Parent's or
Merger Sub's Subsidiaries; (ii) assuming that all consents, approvals,
authorizations and permits described in this Section 4.4 have been obtained and
all filings and notifications described in this Section 4.4 have been made and
any waiting periods thereunder have terminated or expired, conflict with or
violate any Law or Order applicable to Parent, Merger Sub, or their
Subsidiaries, or any of their respective properties or assets; or (iii) require
any consent or approval under, violate, conflict with, result in any breach of
or any loss of benefit under, or constitute a default under, or result in
termination or give to others any right of termination, vesting, amendment,
acceleration or cancellation of, or result in the creation of a Lien, other than
Permitted Liens, upon any of the respective properties or assets of Parent or
any of its Significant Subsidiaries pursuant to, any Contract, permit or other
instrument or obligation to which Parent, Merger Sub or any of their
Subsidiaries is a party or by which they or any of their respective properties
or assets may be bound or affected, except, with respect to clauses (ii) and
(iii), for any such conflicts, violations, consents, approvals, authorizations,
permits, breaches, defaults, losses, other occurrences or Liens which would not
reasonably be expected to have, individually or in the aggregate, a Parent
Material Adverse Effect.
Section 4.5 Parent Reports; Financial Statements.
(a) Since January 1, 2006, each of Parent and Merger Sub has timely
filed or otherwise furnished (as applicable) all registration statements,
prospectuses, forms, reports, definitive proxy statements, schedules, statements
and documents required to be filed by it under the Securities Act or the
Exchange Act, as the case may be, together with all certifications required
pursuant to the Sarbanes-Oxley Act (such documents and any other documents filed
by Parent or any of its Subsidiaries with the SEC, including exhibits and other
information incorporated therein, as they have been supplemented, modified or
amended since the time of filing, collectively, the "Parent SEC Documents"). As
of their respective filing dates (or, if amended or superseded by a filing prior
to the date of this Agreement, then on the date of such filing), the Parent SEC
Documents (i) did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements made therein, in light of the circumstances under which they
were made, not misleading and (ii) complied in all material respects with the
applicable requirements of the Exchange Act or the Securities Act, as the case
may be, the Sarbanes-Oxley Act and the applicable rules and regulations of the
SEC thereunder. None of Parent's Subsidiaries are required to make any filings
with the SEC. All of the audited consolidated financial statements and unaudited
consolidated interim financial statements of Parent and Parent's Subsidiaries
included in the Parent SEC Documents (together with the related notes and
schedules thereto, collectively, the "Parent Financial Statements") (A) have
been prepared from, and are in accordance with, the books and records of Parent
and Parent's Subsidiaries in all material respects, (B) have been prepared in
accordance with GAAP applied on a consistent basis during the periods involved
(except as may be indicated in the notes thereto or, in the case of interim
financial statements, for normal and recurring year-end adjustments) and (C)
fairly present in all material respects the consolidated financial position and
the consolidated results of operations, cash flows and changes in stockholders'
equity of Parent and its Subsidiaries as of the dates and for the periods
referred to therein.
(b) Parent is in compliance in all material respects with (i) the
applicable provisions of the Sarbanes-Oxley Act and (ii) the applicable listing
and corporate governance rules and regulations of the NYSE. Except as permitted
by the Exchange Act, including Sections 13(k)(2) and (3), since the enactment of
the Sarbanes-Oxley Act, neither Parent nor any of its Affiliates has made,
arranged, modified (in any material way), or forgiven personal loans to any
executive officer or director of Parent.
(c) Parent's disclosure controls and procedures (as defined in Rules
13a-15(e) and 15d-15(e) of the Exchange Act), as required by Rules 13a-15(a) and
15d-15(a) of the Exchange Act, are designed to ensure that all information
required to be disclosed by Parent in the reports it files or submits under the
Exchange Act is made Known to the chief executive officer and the chief
financial officer of Parent by others within Parent to allow timely decisions
regarding required disclosure as required under the Exchange Act and is
recorded, processed, summarized and reported within the time periods specified
by the SEC's rules and forms. Parent has evaluated the effectiveness of Parent's
disclosure controls and procedures and, to the extent required by applicable
Law, presented in any applicable Parent SEC Document that is a report on Form
10-K or Form 10-Q, or any amendment thereto, its conclusions about the
effectiveness of the disclosure controls and procedures as of the end of the
period covered by such report or amendment based on such evaluation. Based on
its most recently completed evaluation of its system of internal control over
financial reporting prior to the date of this Agreement, (i) to the Knowledge of
Parent, Parent had no significant deficiencies or material weaknesses in the
design or operation of its internal control over financial reporting that would
reasonably be expected to adversely affect Parent's ability to record, process,
summarize and report financial information and (ii) Parent does not have
Knowledge of any fraud, whether or not material, that involves management or
other employees who have a significant role in Parent's internal control over
financial reporting.
(d) No attorney representing Parent or any of its Subsidiaries,
whether or not employed by Parent or any Subsidiary of Parent, has reported to
Parent's chief legal counsel or chief executive officer evidence of a material
violation of securities Laws, breach of fiduciary duty or similar violation by
Parent or any of its officers, directors, employees or agents pursuant to
Section 307 of the Sarbanes-Oxley Act.
(e) Since January 1, 2006, to the Knowledge of the Parent, no
employee of the Parent or any of its Subsidiaries has provided or is providing
information to any law enforcement agency or Governmental Entity regarding the
commission or possible commission of any crime or the violation or possible
violation of any applicable legal requirements of the type described in Section
806 of the Sarbanes-Oxley Act by the Parent or any of its Subsidiaries.
(f) To the Knowledge of the Parent, none of the Parent SEC Documents
is the subject of ongoing SEC review (other than confidential treatment
requests). Parent has made available to the Company true and complete copies of
all written comment letters from the staff of the SEC received since January 1,
2006 through the date of this Agreement relating to the Parent SEC Documents and
all written responses of Parent thereto through the date of this Agreement other
than with respect to requests for confidential treatment. As of the date of this
Agreement, there are no outstanding or unresolved comments in comment letters
received from the SEC staff with respect to any Parent SEC Documents other than
confidential treatment requests. To the Knowledge of Parent, as of the date of
this Agreement, there are no SEC inquiries or investigations, other governmental
inquiries or investigations or internal investigations pending or threatened, in
each case regarding any accounting practices of Parent.
Section 4.6 Litigation.
(a) There are no Actions pending or, to the Knowledge of Parent or
Merger Sub, threatened against Parent or Merger Sub or any of their respective
Subsidiaries or any of their respective assets or properties that if determined
adversely to Parent would reasonably be expected to have, individually or in the
aggregate, a Parent Material Adverse Effect.
(b) Neither Parent nor any of its Subsidiaries or, to the Knowledge
of Parent, any of their respective assets or properties, is subject to any
outstanding Order, writ, injunction, decree or arbitration ruling, award or
other finding that would reasonably be expected to have, individually or in the
aggregate, a Parent Material Adverse Effect.
Section 4.7 Brokers and Finders. Neither Parent nor any of its
Subsidiaries has employed any broker or finder or incurred any liability for any
brokerage fees, commissions or finders fees in connection with the Merger or the
other transactions contemplated by this Agreement, except that Parent has
employed Banc of America Securities LLC and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Goldman, Sachs & Co., J.P. Morgan Securities Inc.,
Barclay's Capital Inc. and Citigroup Global Markets Inc. as its financial
advisors (the "Parent Financial Advisors"), and Parent and Merger Sub have
heretofore made available to the Company a true and complete copy of all
agreements between Parent, Merger Sub and the Parent Financial Advisors pursuant
to which such firms would be entitled to any payment relating to the Merger and
the other transactions contemplated by this Agreement.
Section 4.8 No Business Activities. Merger Sub has not conducted any
activities other than in connection with the organization of Merger Sub, the
negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby. Merger Sub has no Subsidiaries.
Section 4.9 Board Approval. The Board of Directors of Parent, by
resolutions duly adopted by unanimous vote, at a meeting duly called and held
and not subsequently rescinded or modified, has duly (i) determined that this
Agreement and the Merger are advisable and are fair to and in the best interests
of Parent and its stockholders, (ii) approved this Agreement and the Merger and
(iii) resolved that until the earlier of the Effective Time and the termination
of this Agreement in accordance with its terms, it is advisable and in the best
interests of Parent to reduce its quarterly cash dividend to an amount not to
exceed $0.16 per share of Parent Common Stock and that Parent shall not declare,
set aside, make or pay any quarterly cash dividend or distribution in excess of
such amount or rescind, modify or amend such resolution.
Section 4.10 Vote Required. There are no votes of the holders of any
class or series of Parent capital stock necessary to consummate any of the
transactions contemplated hereby.
Section 4.11 Financing. Parent has delivered to the Company true and
complete fully executed copies of the commitment letter, dated as of January 25,
2009 between Parent and J.P. Morgan Securities Inc., JPMorgan Chase Bank, N.A.,
Banc of America Securities LLC, Bank of America, N.A., Barclays Bank PLC,
Citigroup Global Markets Inc. and Goldman Sachs Credit Partners L.P., including
all exhibits, schedules, annexes and amendments to such letter in effect as of
the date of this Agreement (the "Commitment Letter"), pursuant to which and
subject to the terms and conditions thereof each of the parties thereto (other
than Parent) have severally agreed to lend the amounts set forth therein (the
provision of such funds as set forth therein, the "Financing") for the purposes
set forth in such Commitment Letter. The Commitment Letter has not been amended,
restated or otherwise modified or waived prior to the date of this Agreement,
and the respective commitments contained in the Commitment Letter have not been
withdrawn, modified or rescinded in any respect prior to the date of this
Agreement. As of the date of this Agreement, the Commitment Letter is in full
force and effect and constitutes the legal, valid and binding obligation of each
of Parent and, to the Knowledge of Parent, the other parties thereto. There are
no conditions precedent or contingencies (including pursuant to any "flex"
provisions) related to the funding of the full amount of the Financing, other
than as expressly set forth in the Commitment Letter. Subject to the terms and
conditions of the Commitment Letter, assuming the accuracy of the Company's
representations and warranties contained in Section 3.2(a) and (b) and assuming
compliance by the Company in all material respects with its covenants contained
in Section 5.1, the net proceeds contemplated from the Financing, together with
other financial resources of Parent and Merger Sub including cash on hand and
marketable securities of Parent, Merger Sub, the Company and the Company's
Subsidiaries on the Closing Date, will, in the aggregate, be sufficient for the
satisfaction of all of Parent's and Merger Sub's obligations under this
Agreement, including the payment of any amounts required to be paid pursuant to
Article I or Article II, and the payment of any debt required to be repaid in
connection with the Merger and of all fees and expenses reasonably expected to
be incurred in connection herewith. As of the date of this Agreement, (i)
(assuming the accuracy of the Company's representations and warranties contained
in Section 3.6 hereof) no event has occurred which would constitute a breach or
default (or an event which with notice or lapse of time or both would constitute
a default), in each case, on the part of Parent or Merger Sub under the
Commitment Letter or, to the Knowledge of Parent and Merger Sub, any other party
to the Commitment Letter, and (ii) subject to the satisfaction of the conditions
contained in Sections 7.1 and 7.2 hereof, Parent does not have any reason to
believe that any of the conditions to the Financing will not be satisfied or
that the Financing or any other funds necessary for the satisfaction of all of
Parent's and Merger Sub's obligations under this Agreement and the payment of
any debt required to be repaid in connection with the Merger and of all fees and
expenses reasonably expected to be incurred in connection herewith will not be
available to Parent on the Closing Date. Parent has fully paid all commitment
fees or other fees required to be paid prior to the date of this Agreement
pursuant to the Commitment Letter.
Section 4.12 Absence of Certain Changes. (a) Since September 30,
2008, the business of Parent and its Subsidiaries has been conducted in the
ordinary course in all material respects and (b) since December 31, 2007, there
has not been any event, occurrence, development or state of circumstances or
facts or condition that has had or would reasonably be expected to have,
individually or in the aggregate, a Parent Material Adverse Effect.
Section 4.13 Compliance with Laws. Parent and each of its
Subsidiaries are in compliance with all Laws or Orders, except where any such
failure to be in compliance has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Parent Material Adverse Effect. No
investigation or review by any Governmental Entity with respect to Parent or any
of its Subsidiaries is pending or, to the Knowledge of Parent, threatened, nor
has any Governmental Entity indicated an intention to conduct the same which, in
each case, would reasonably be expected to have a material and adverse impact on
Parent. To the Knowledge of Parent, Parent is in material compliance with the
Foreign Corrupt Practices Act of 1977, as amended, and any rules and regulations
thereunder.
Section 4.14 Certain Agreements. Prior to the Board of Directors of
the Company approving this Agreement, the Merger and the other transactions
contemplated hereby for purposes of the applicable provisions of the DGCL,
neither Parent nor Merger Sub, alone or together with any other person, was at
any time, or became, an "interested stockholder" (as such term is defined in
Section 203 of the DGCL) thereunder or has taken any action that would cause any
anti-takeover statute under the DGCL or other applicable state Law to be
applicable to this Agreement, the Merger, or any of the transactions
contemplated hereby. Except as set forth in Section 4.14 of the Parent
Disclosure Letter, none of Parent or any of its Subsidiaries has any direct or
indirect beneficial ownership, or sole or shared voting power, with respect to
any shares of Company Common Stock or Company Convertible Preferred Stock.
Section 4.15 Tax.
(a) Except to the extent reserved for in the most recent Parent
Financial Statements, Parent and each of its Subsidiaries have timely filed, or
have caused to be timely filed, all material Tax Returns required to be filed,
all such Tax Returns are true, complete and accurate in all material respects,
and all material amounts of Taxes shown to be due on such Tax Returns, or
otherwise owed, have been or will be timely paid.
(b) Except as would not have and would not reasonably be expected to
have, individually or in the aggregate, a Parent Material Adverse Effect, (i) no
Tax authority has asserted, or threatened in writing to assert, a Tax liability
(exclusive of interest) in excess of $25 million in connection with an audit or
other administrative or court proceeding involving Taxes of Parent or any of its
Subsidiaries, (ii) neither Parent nor any of its Subsidiaries has distributed
stock of another corporation or has had its stock distributed in a transaction
that was purported or intended to be governed, in whole or in part, by Section
355 or Section 361 of the Code within the preceding five (5) years, (iii)
neither Parent nor any of its Subsidiaries has participated, or is currently
participating, in a "listed transaction" as defined in Treasury Regulations
Section 1.6011-4(b), and (iv) neither Parent nor any of its Subsidiaries is a
party to any agreement or arrangement relating to the apportionment, sharing,
assignment or allocation of Taxes (other than an agreement or arrangement solely
among the members of a group the common parent of which is Parent or any of its
Subsidiaries), or has any liability for Taxes of any Person (other than Parent
or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 or any
similar provision of state, local or foreign Law, as a transferee or successor,
by contract or otherwise.
Section 4.16 Intellectual Property.
(a) Except as, in the aggregate, would not reasonably be expected to
have a Parent Material Adverse Effect, (i) to Parent's Knowledge, Parent and
each of its Subsidiaries owns, or is licensed to use (in each case, free and
clear of any Liens), all Intellectual Property used in or necessary for the
conduct of its business as currently conducted; (ii) to Parent's Knowledge, the
use of any Intellectual Property by Parent and its Subsidiaries does not
infringe on or otherwise violate the rights of any Person and is in accordance
with any applicable license pursuant to which Parent or any Subsidiary acquired
the right to use any Intellectual Property; (iii) to Parent's Knowledge, no
Person is challenging, infringing on or otherwise violating any right of Parent
or any of its Subsidiaries with respect to any Intellectual Property owned by
and/or licensed to Parent or its Subsidiaries; and (iv) to Parent's Knowledge,
neither Parent nor any of its Subsidiaries has received any written notice or
otherwise has Knowledge of any pending claim, order or proceeding with respect
to any Intellectual Property used by Parent and its Subsidiaries and to its
Knowledge no Intellectual Property owned and/or licensed by Parent or its
Subsidiaries is being used or enforced in a manner that would reasonably be
expected to result in the abandonment, cancellation or unenforceability of such
Intellectual Property. Parent and its Subsidiaries have taken reasonable steps
to protect the confidentiality and value of all trade secrets and any other
confidential information that are owned, used or held by Parent and its
Subsidiaries in confidence, including entering into licenses and Contracts that
require employees, licensees, contractors, and other Persons with access to
trade secrets or other confidential information to safeguard and maintain the
secrecy and confidentiality of such trade secrets. To Parent's Knowledge, such
trade secrets have not been used, disclosed to or discovered by any Person
except pursuant to valid and appropriate non-disclosure, license or any other
appropriate Contract which has not been breached.
Section 4.17 Regulatory Compliance.
(a) Except as has not had, and would not reasonably be expected to
have, individually or in the aggregate, a Parent Material Adverse Effect, each
of Parent and its Significant Subsidiaries holds all licenses, permits,
franchises, variances, registrations, exemptions, Orders and other governmental
authorizations, consents, approvals and clearances, and has submitted notices
to, all Governmental Entities, including all authorizations under the FDCA, the
PHSA, and the regulations of the FDA promulgated thereunder, and any other
Governmental Entity that is concerned with the quality, identity, strength,
purity, safety, efficacy or manufacturing of Parent's products (any such
Governmental Entity, a "Parent Regulatory Agency") necessary for the lawful
operating of the businesses of Parent or any of its Subsidiaries (the "Parent
Permits"), and all such Parent Permits are valid, and in full force and effect.
Since January 1, 2006, there has not occurred any violation of, default (with or
without notice or lapse of time or both) under, or event giving to others any
right of termination, amendment or cancellation of, with or without notice or
lapse of time or both, any Parent Permit except as has not had, and would not
reasonably be expected to have, individually or in the aggregate, a Parent
Material Adverse Effect. Parent and each of its Subsidiaries are in compliance
in all material respects with the terms of all Parent Permits, and no event has
occurred that, to the Knowledge of Parent, would reasonably be expected to
result in the revocation, cancellation, non-renewal or adverse modification of
any Parent Permit, except as has not had, and would not reasonably be expected
to have, individually or in the aggregate, a Parent Material Adverse Effect.
(b) Except as would not reasonably be expected to have, individually
or in the aggregate, a Parent Material Adverse Effect, since January 1, 2006,
all applications, submissions, information and data utilized by Parent or
Parent's Subsidiaries as the basis for, or submitted by or, to the Knowledge of
Parent, on behalf of Parent or Parent's Subsidiaries in connection with, any and
all requests for a Parent Permit relating to Parent or any of its Subsidiaries,
and its respective business and Parent Products, when submitted to the FDA or
other Parent Regulatory Agency, were true and correct in all material respects
as of the date of submission, and any updates, changes, corrections or
modification to such applications, submissions, information and data required
under applicable Laws have been submitted to the FDA or other Parent Regulatory
Agency.
(c) Since January 1, 2006, neither Parent, nor any of its
Subsidiaries, has committed any act, made any statement or failed to make any
statement that would reasonably be expected to provide a basis for the FDA or
any other Parent Regulatory Agency to invoke its policy with respect to "Fraud,
Untrue Statements of Material Facts, Bribery, and Illegal Gratuities", or
similar policies, set forth in any applicable Laws, except as has not had, and
would not reasonably be expected to have, individually or in the aggregate, a
Parent Material Adverse Effect.
(d) For the avoidance of doubt, the provisions of this Section 4.17
do not apply to Environmental Laws or Environmental Permits.
Section 4.18 No Additional Representations.
(a) Except for the representations and warranties made by Parent and
Merger Sub in this Article IV, none of Parent, Merger Sub or any other Person
makes any express or implied representation or warranty with respect to Parent,
Merger Sub or their respective Subsidiaries or their respective businesses,
operations, assets, liabilities, conditions (financial or otherwise) or
prospects, and Parent hereby disclaims any such other representations or
warranties. In particular, without limiting the foregoing disclaimer, none of
Parent, Merger Sub or any other Person makes or has made any representation or
warranty to the Company or any of its Affiliates or Representatives with respect
to (i) any financial projection, forecast, estimate, budget or prospect
information relating to Parent, Merger Sub any of their respective Subsidiaries
or their respective businesses, or (ii) except for the representations and
warranties made by Parent and Merger Sub in this Article IV, any oral or written
information presented to the Company or any of its Affiliates or Representatives
in the course of their due diligence investigation of Parent and Merger Sub, the
negotiation of this Agreement or in the course of the transactions contemplated
hereby.
(b) Parent and Merger Sub each acknowledge and agree that it (i) has
had the opportunity to meet with the management of the Company and to discuss
the business, assets and liabilities of the Company and its Subsidiaries, (ii)
has been afforded the opportunity to ask questions of and receive answers from
officers of the Company, and (iii) has conducted its own independent
investigation of the Company and its Subsidiaries, their respective businesses,
assets, liabilities and the transactions contemplated by this Agreement.
(c) Notwithstanding anything contained in this Agreement to the
contrary, each of Parent and Merger Sub acknowledges and agrees that neither the
Company nor any Person has made or is making any representations or warranties
relating to the Company or its Subsidiaries whatsoever, express or implied,
beyond those expressly given by the Company in Article III hereof, including any
implied representation or warranty as to the accuracy or completeness of any
information regarding the Company furnished or made available to Parent, Merger
Sub or any of their respective Representatives. Without limiting the generality
of the foregoing, each of Parent and Merger Sub acknowledges that no
representations or warranties are made with respect to any projections,
forecasts, estimates, budgets or prospect information that may have been made
available to Parent, Merger Sub or any of their respective Representatives.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 5.1 Ordinary Course. The Company covenants and agrees as to
itself and its Subsidiaries that, from the date of this Agreement until the
earlier of the Effective Time and termination of this Agreement, except as
specifically permitted by any other provision of this Agreement (or as set forth
in Section 5.1 of the Company Disclosure Letter) or required by applicable Law
or the regulations or requirements of any stock exchange or regulatory
organization applicable to the Company or any of its Subsidiaries or except with
Parent's prior written approval (not to be unreasonably withheld, conditioned or
delayed), the business of it and its Subsidiaries shall be conducted in the
ordinary and usual course consistent with the Company's past practice and, to
the extent consistent therewith, the Company and its Subsidiaries shall use
their reasonable best efforts to (i) preserve their assets, (ii) keep available
the services of current officers, key employees and consultants of the Company
and each of its Subsidiaries, (iii) preserve the Company's business organization
intact and maintain its existing relations and goodwill with customers,
suppliers, distributors, creditors, lessors, clinical trial investigators or
managers of its clinical trials and (iv) comply in all material respects with
all applicable Laws. Without limiting the generality of the foregoing, and as an
extension thereof, except as specifically permitted by any other provision of
this Agreement (or as set forth in Section 5.1 of the Company Disclosure Letter)
or required by applicable Law or the regulations or requirements of any stock
exchange or regulatory organization applicable to the Company, or the terms of
any Contract binding upon the Company or any of its Subsidiaries, the compliance
with which shall not cause the Company to be in material non-compliance with
this Section 5.1, the Company shall not, and shall not permit any of its
Subsidiaries to, from the date of this Agreement until the Effective Time,
directly or indirectly, do, or agree to do, any of the following without the
prior written consent of Parent (not to be unreasonably withheld, conditioned or
delayed):
(a) amend or propose to amend the certificate of incorporation or
bylaws or other comparable governing instruments of the Company or any of its
Significant Subsidiaries;
(b) issue, sell, pledge, dispose of, grant, transfer or encumber or
authorize the issuance, sale, pledge, disposition, grant, transfer or
encumbrance of any shares of, or securities convertible into or exchangeable or
exercisable for, or options, warrants, calls, commitments or rights of any kind
to acquire, or based on the value of, any shares of its capital stock of any
class or any Equity Interest, voting debt of the Company or any of its
Subsidiaries, other than the issuance of shares upon the exercise of Company
Convertible Preferred Stock, outstanding as of the date hereof, in accordance
with its terms, or the exercise of Options or the settlement of DSUs or RSUs or
MIP, outstanding as of the date hereof, in each case in accordance with the
terms of the applicable Company Stock Plan and related award agreements;
(c) other than pursuant to cash management or investment portfolio
activities in the ordinary course of business, acquire (including by merger,
consolidation, or acquisition of stock or assets or Intellectual Property or any
other business combination) any ownership interest in any corporation,
partnership, other business organization or any division thereof or any assets
or interest in any assets from any other Person for consideration valued in
excess of $50 million individually or $200 million in the aggregate (with the
valuation of any contingent consideration being determined in accordance with
the valuation methodology used by the Company in connection with determining the
need to make a notification under the HSR Act (without regard to whether
payments are being made with respect to assets within or outside the United
States));
(d) enter into any strategic licensing, joint venture,
collaboration, alliance, co-promotion or similar agreement for consideration
valued in excess of $50 million individually or $200 million in the aggregate
for all such contracts (with the valuation of any contingent consideration being
determined in accordance with the valuation methodology used by the Company in
connection with determining the need to make a notification under the HSR Act
(without regard to whether payments are being made with respect to assets within
or outside the United States)), provided, that no such agreement would (i)
constitute a Company Material Contract, (ii) limit or restrict the Company or
its Subsidiaries or the Parent or any of its Affiliates (including the Surviving
Corporation) or any successor thereto, in each case, after the Effective Time,
from engaging or competing in, or require any of them to work exclusively with
the party to such agreement in, any material line of business or in any material
geographic area or, in the case of the pharmaceutical or animal health business,
in the research, development, manufacture and commercialization of any antibody
or therapeutic agent directed at a specific antigen or other target or product
or in any therapeutic area, class of drugs or mechanism of action or modality,
other than any limitation or restriction which the Company shall have the right
to terminate upon a change of control at no cost and with no such continuing
material restrictions or obligations to the Company or Parent or any of their
respective Subsidiaries; or (iii) be reasonably expected to interfere with the
parties' ability to consummate the Merger;
(e) (i) purchase financial instruments that at the time of purchase
qualify as Level III assets (as defined in FASB 157); (ii) change in a material
manner the average duration of the Company's investment portfolio or the average
credit quality of such portfolio, except for changes that would reduce
investment risk in such portfolio; (iii) materially change investment guidelines
with respect to the Company's investment portfolio except for changes that would
reduce investment risk of the Company's investment portfolio; (iv) hypothecate,
repo, encumber or otherwise pledge assets in the Company's investment portfolio;
or (v) invest new surplus cash from operations in securities other than
short-term liquid securities permitted by Parent's investment guidelines (which
shall be implemented by the Company with respect to such new surplus cash as
soon as practicable after the date hereof);
(f) enter into interest rate swaps, foreign exchange or commodity
agreements and other similar hedging arrangements other than for purposes of
offsetting a bona fide exposure (including counterparty risk);
(g) merge or consolidate the Company or any of its Subsidiaries with
any Person or adopt a plan of complete or partial liquidation or resolutions
providing for a complete or partial liquidation, dissolution, restructuring,
recapitalization or other reorganization of the Company or any of its
Subsidiaries, other than any such transaction between or among direct or
indirect wholly-owned Subsidiaries of the Company that would not result in
material adverse tax consequences or material loss of tax benefits or loss of
any material asset (including Intellectual Property);
(h) sell, pledge, dispose of, transfer, lease, license, guarantee or
encumber, or authorize the sale, pledge, disposition, transfer, lease, license,
guarantee or encumbrance of, any material property or assets (including
Intellectual Property) of the Company or any of its Subsidiaries, except (i)
pursuant to existing Contracts or commitments, (ii) for the sale of goods and
services in the ordinary course of business consistent with past practice, (iii)
transactions involving property or assets of the Company or any of its
Subsidiaries having a value no greater than $120 million in the aggregate for
all such transfers (with the valuation of any contingent consideration being
determined in accordance with the valuation methodology used by the Company in
connection with determining the need to make a notification under the HSR Act
(without regard to whether payments are being made with respect to assets within
or outside the United States)), (iv) in connection with any waiver, release,
assignment, settlement, compromise of litigation otherwise permitted under this
Section 5.1, or (v) in connection with cash management or investment portfolio
activities in the ordinary course of business;
(i) split, combine, reclassify, subdivide or amend the terms of its
outstanding shares of capital stock or any other securities of the Company or
enter into any agreement with respect to voting of any of its capital stock or
any securities convertible into or exchangeable for such shares;
(j) declare, set aside, make or pay any dividend or other
distribution, whether payable in cash, stock, property or otherwise, in respect
of the capital stock of the Company or any of its Subsidiaries, except (i) the
declaration and payment of regular quarterly cash dividends not in excess of
$0.30 per share of Company Common Stock, (ii) the declaration and payment of
regular quarterly cash dividends not in excess of $0.50 per share of Company
Convertible Preferred Stock, in each case, with usual record and payment dates
for such dividends in accordance with past dividend practice and (iii) between
or among direct or indirect wholly-owned Subsidiaries of the Company;
(k) purchase, redeem or otherwise acquire, or permit any of its
Subsidiaries to purchase, redeem or otherwise acquire any shares of its capital
stock, any securities convertible or exchangeable or exercisable for any shares
of capital stock or any other securities, including the Convertible Debentures
and Company Convertible Preferred Stock, except for purchases, redemptions or
other acquisitions of capital stock or other securities (i) required by the
terms of the Company Stock Plans or the Convertible Debenture Indenture, (ii) in
order to pay Taxes or satisfy withholding obligations in respect of such taxes
in connection with the exercise of Company Stock Options or vesting of RSUs or
DSUs or the lapse of restrictions in respect of any other Equity Interests in
the Company, in each case pursuant to the terms of the Company Stock Plans,
(iii) required by the terms of any plans, arrangements or agreements existing on
the date hereof and disclosed in Section 3.11(a) of the Company Disclosure
Letter between the Company or any of its Subsidiaries and any director or
employee of the Company or any of its Subsidiaries, or (iv) prepayment,
repurchase or redemption of all or any portion of the Convertible Debentures for
an amount less than or equal to par, plus any accrued and unpaid interest
incurred up to the date on which such Convertible Debentures are prepaid,
repurchased or redeemed;
(l) incur any indebtedness for borrowed money or issue any debt
securities or warrants or other rights to acquire debt securities of the Company
or any of its Subsidiaries or assume, guarantee or endorse, as an accommodation
or otherwise, the obligations of any other Person for borrowed money, in each
case other than for borrowing under the Company's existing working capital
facilities and existing letter of credit facilities in the ordinary course;
(m) make any loans, capital contributions to, or investments in, any
Person in amounts in excess of $50 million in the aggregate, other than (i) cash
management or investment portfolio activities in the ordinary course of business
and consistently with the Company's obligations under Section 5.1(e) or (ii) in
connection with a transaction permitted under Section 5.1(c) or (d);
(n) make or agree to make any capital expenditures in excess of $1.2
billion in the aggregate for all such capital expenditures (it being understood
that any excess over such amount attributable solely to foreign exchange
fluctuation shall not be deemed to violate this clause), or commit to any new
capital projects in excess of $50 million individually and $100 million in the
aggregate for all such capital expenditures that are not contemplated by the
Company's 2009 operating plan;
(o) terminate, cancel, renew, or request or agree to any material
amendment or material modification to, material change in, or material waiver
under, any Company Material Contract, or enter into or materially amend any
Contract that, if existing on the date hereof, would be a Company Material
Contract (in each case, excluding the Company Material Contracts identified in
Section 3.10(a)(ii) (except for any amendment that would expand the limitations
or restrictions referenced therein));
(p) (i) increase the number of employees of the Company and its
Subsidiaries ("Company Employees"), based on the number of Company Employees
employed as of the date hereof, other than with respect to (A) employees hired
pursuant to offers of employment outstanding on the date hereof or to replace
currently authorized key positions that are or may become vacant or (B) as
reasonably determined by the Company in good faith, employees (up to a maximum
of 500 people) based on essential business need, or (ii) enter into an
employment agreement or relationship with any Person who earns an annual rate of
base salary of more than or equal to $215,000 (other than with respect to
employees hired pursuant to offers of employment outstanding on the date hereof
or with respect to newly hired employees filling positions that are reasonably
and in good faith deemed by the Company to be essential, but in no event, in the
aggregate, to exceed 50 people);
(q) enter into, modify, amend or terminate any Contract or waive,
release or assign any rights or claims thereunder, which if so entered into,
modified, amended, terminated, waived, released or assigned would be reasonably
likely to (i) impair the ability of the Company to perform its obligations under
this Agreement in any material respect or (ii) prevent or materially delay or
impair the consummation of the Merger and the other transactions contemplated by
this Agreement;
(r) except as required pursuant to any Company Benefit Plans,
Foreign Benefit Plans, Collective Bargaining Agreements, the terms of this
Agreement or any applicable Law: (i) grant or provide, or adopt a plan or enter
into any agreement or agreements intended to grant or provide, any retention,
change in control, severance or termination payments or benefits to any current
or former director, officer, employee or consultant of the Company or any of its
Subsidiaries, (ii) increase the compensation, bonus or pension, welfare,
severance or other benefits of, pay any bonus to, or make any new equity awards
to any current or former director, officer, employee or consultant of the
Company or any of its Subsidiaries, except for increases in base salary, in the
ordinary course of business consistent with past practice for promoted employees
who are not officers and whose new position fills a vacancy (other than a
vacancy created as a result of Project Impact), that do not exceed six percent
(6%), on average, of the base salary increases of all those receiving such
salary increases in the United States and Puerto Rico (and consistent with local
promotional practices and applicable Law in jurisdictions outside the United
States or Puerto Rico), (iii) establish, adopt, amend or terminate any Company
Benefit Plan or amend the terms of any outstanding equity-based awards, (iv)
take any action to accelerate the vesting or payment, or fund or in any other
way secure the payment, of compensation or benefits under any Company Benefit
Plan, (v) change any actuarial or other assumptions used to calculate funding
obligations with respect to any Company Benefit Plan or to change the manner in
which contributions to such plans are made or the basis on which such
contributions are determined, or (vi) issue or forgive any loans to directors,
officers, employees, contractors or any of their respective Affiliates except
for any such issuance that would not violate the Sarbanes-Oxley Act and is
consistent with past practice and policy;
(s) pre-pay any long-term indebtedness for borrowed money or change
the terms or extend the maturity thereof (including providing cash cover under
any letter of credit otherwise than as required to do so under such facility),
other than (i) borrowings under its existing working capital facilities and (ii)
prepayment, repurchase or redemption of all or any portion of the Convertible
Debentures for an amount less than or equal to par, plus any accrued and unpaid
interest incurred up to the date on which such Convertible Debentures are
prepaid, repurchased or redeemed;
(t) make any material change in its method of accounting or its
accounting practices, policies or principles, unless required by Law, a
Governmental Entity or GAAP, and neither the Company nor any of its Subsidiaries
shall (i) change its fiscal year, (ii) make, change or revoke any material
United States Tax election, (iii) settle or compromise the United States federal
income Tax examination for the 2002 through 2005 tax years, or (iv) settle or
compromise any other Tax claim where the amount of cash to be paid to the
relevant taxing authority upon such settlement or compromise of such claim
exceeds $25 million;
(u) waive, release, assign, settle or compromise (i) any product
liability claim asserted against the Company or its Subsidiaries with respect to
hormone therapy products; (ii) any other product liability claims asserted
against the Company or its Subsidiaries, other than any compromises or
settlements involving the payment by the Company or its Subsidiaries of monetary
damages not to exceed $5 million individually or $50 million in the aggregate;
or (iii) any claim (other than a product liability claim or a Tax claim covered
by Section 5.1(t)), the resolution of which (x) would be material to the Company
and its Subsidiaries taken as a whole, (y) would involve the payment by the
Company of an amount in excess of $25 million individually and $100 million in
the aggregate (but excluding from such aggregate total any individual claim
involving the payment by the Company of an amount less than $1 million) or (z)
would involve the imposition of injunctive relief against the Company that would
materially limit or restrict the business of Parent and its Subsidiaries
(including the Surviving Corporation) following the Effective Time; or
(v) authorize or enter into an agreement to do any of the foregoing.
Section 5.2 Governmental Filings.
(a) The Company agrees that, between the date of this Agreement and
the Effective Time, the information supplied by the Company in writing expressly
for inclusion or incorporation by reference in the Form S-4 (as defined in
Section 6.1(a)) (and any amendment thereof or supplement thereto) will not, at
the date filed with the SEC, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements made therein, in light of the circumstances under
which they are made, not misleading, except that no representation or warranty
is made by the Company with respect to statements made in the Proxy Statement
based on information supplied by Parent or Merger Sub in writing expressly for
inclusion therein.
(b) Parent and Merger Sub agree that, between the date of this
Agreement and the Effective Time:
(i) the information supplied by Parent or Merger Sub in writing
expressly for inclusion or incorporation by reference in the Proxy
Statement (as defined in Section 6.1(a)) (and any amendment thereof or
supplement thereto) will not, at the date mailed to the Company's
stockholders and at the time of the meeting of the Company's stockholders
to be held in connection with the Merger, contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements made therein, in
light of the circumstances under which they are made, not misleading;
(ii) the Form S-4 (and any amendment thereof or supplement thereto)
will not, when filed with the SEC, at the time of distribution or
dissemination thereof to the stockholders of the Company, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading, except that no representation or warranty is made by Parent or
Merger Sub with respect to statements made in the Form S-4 based on
information supplied by the Company in writing expressly for inclusion
therein. The Form S-4 will comply as to form in all material respects with
the provisions of the Exchange Act, the rules and regulations thereunder
and any other applicable federal securities Laws.
Section 5.3 Restrictions on Parent. Parent covenants and agrees as
to itself and its Subsidiaries that, from the date of this Agreement until the
earlier of the Effective Time and termination of this Agreement, except as
specifically permitted by any other provision of this Agreement (or as set forth
in Section 5.3 of the Parent Disclosure Letter) or required by applicable Law or
the regulations or requirements of any stock exchange or regulatory organization
applicable to Parent or except with the Company's prior written approval (not to
be unreasonably withheld, conditioned or delayed), the business of it and its
Subsidiaries shall be conducted in the ordinary and usual course consistent with
Parent's past practice and, to the extent consistent therewith, Parent and its
Subsidiaries shall use their reasonable best efforts to (i) preserve their
assets, (ii) preserve Parent's business organization intact and maintain its
existing relations and goodwill with customers, suppliers, distributors,
creditors, lessors, clinical trial investigators or managers of its clinical
trials and (iii) comply in all material respects with all applicable Laws.
Without limiting the generality of the foregoing, and as an extension thereof,
except as specifically permitted by any other provision of this Agreement (or as
set forth in Section 5.3 of the Parent Disclosure Letter) or required by
applicable Law or the regulations or requirements of any stock exchange or
regulatory organization applicable to Parent or the terms of any Contract
binding upon Parent or any of its Subsidiaries, Parent shall not, and shall not
permit any of its Subsidiaries to, from the date of this Agreement until the
Effective Time, directly or indirectly, do, or agree to do, any of the following
without the prior written consent of the Company, which consent shall not be
unreasonably withheld, conditioned or delayed:
(a) acquire (including, by merger, consolidation, or acquisition of
stock, assets or any acquisition or license of Intellectual Property or any
other business combination or collaboration) any interest in any corporation,
partnership, other business organization or any division thereof or any assets
or interest in any assets from any other Person, except for acquisitions and
licenses for which the cash consideration paid prior to the Effective Time,
together with the cash consideration paid prior to the Effective Time for any
other such acquisitions or licenses, does not exceed $750 million in the
aggregate;
(b) merge or consolidate Parent with any Person or adopt a plan of
complete or partial liquidation or resolutions providing for a complete or
partial liquidation, dissolution, restructuring, recapitalization or other
reorganization of Parent;
(c) purchase, redeem or otherwise acquire, or permit any of its
Subsidiaries to purchase, redeem or otherwise acquire any shares of its capital
stock, any securities convertible or exchangeable or exercisable for any shares
of capital stock or any other securities, for consideration in excess of $500
million in the aggregate, other than any purchase, redemption or other
acquisition (i) of such securities made in connection with the Financing subject
to the Company's prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed, (ii) required by the terms of the Parent
Benefit Plans or the Parent Series A Convertible Perpetual Preferred Stock,
(iii) in order to pay Taxes or satisfy withholding obligations in respect of
such Taxes in connection with the exercise of Parent stock options, the lapse of
restrictions or settlement of awards granted pursuant to the Parent Benefit
Plans or (iv) required by the terms of any plans, arrangements or agreements
existing on the date hereof between the Parent or any of its Subsidiaries and
any director or employee of the Parent or any of its Subsidiaries;
(d) declare, set aside, make or pay any dividend or other
distribution, whether payable in cash, stock, property or otherwise, in respect
of the capital stock of Parent or any of its Subsidiaries, except the
declaration and payment of regular quarterly cash dividends not in excess of the
amount contemplated in Section 4.9, with usual record and payment dates for such
dividends in accordance with past dividend practice;
(e) enter into, modify, amend or terminate any Contract or waive,
release or assign any rights or claims thereunder, which if so entered into,
modified, amended, terminated, waived, released or assigned would be reasonably
likely to (i) impair the ability of Parent to perform its obligations under this
Agreement in any material respect or (ii) prevent or materially delay or impair
the consummation of the Merger and the other transactions contemplated by this
Agreement; or
(f) authorize or enter into an agreement to do any of the foregoing.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1 Preparation of Proxy Statement; Stockholders Meeting.
(a) As promptly as reasonably practicable following the date hereof,
the Company shall prepare (with Parent's reasonable cooperation) and file with
the SEC a proxy statement to be sent to the stockholders of the Company in
connection with the Company Stockholder Meeting (such proxy statement, and any
amendments or supplements thereto, the "Proxy Statement") and Parent shall
prepare (with the Company's reasonable cooperation) and file a registration
statement on Form S-4 with respect to the issuance of Parent Common Stock and
the Parent Convertible Preferred Stock, if any, in the Merger (such registration
statement, and any amendments or supplements thereto, the "Form S-4"). The Form
S-4 and the Proxy Statement shall comply as to form in all material respects
with the applicable provisions of the Securities Act and the Exchange Act and
the rules and regulations thereunder and other applicable Law. Each of Parent
and the Company shall use reasonable best efforts to have the Form S-4 declared
effective by the SEC as promptly as practicable after the filing thereof and to
keep the Form S-4 effective as long as is necessary to consummate the Merger and
the transactions contemplated thereby. Parent and the Company shall, as promptly
as practicable after receipt thereof, provide the other party copies of any
written comments and advise the other party of any oral comments, with respect
to the Form S-4 and Proxy Statement received from the SEC. Parent shall provide
the Company with a reasonable opportunity to review and comment on the Form S-4,
and any amendment or supplement thereto, prior to filing such with the SEC, and
will promptly provide the Company with a copy of all such filings made with the
SEC. The Company shall provide Parent with a reasonable opportunity to review
and comment on the Proxy Statement, and any amendment or supplement thereto,
prior to filing such with the SEC, and will promptly provide Parent with a copy
of all such filings made with the SEC. Notwithstanding any other provision
herein to the contrary, no amendment or supplement (including by incorporation
by reference) to the Form S-4 or the Proxy Statement shall be made without the
approval of Parent and the Company, which approval shall not be unreasonably
withheld, conditioned or delayed; provided, that with respect to documents filed
by a party which are incorporated by reference in the Form S-4 or Proxy
Statement, this right of approval shall apply only with respect to information
relating to the other party or its business, financial condition or results of
operations; and provided, further, that the Company, in connection with a Change
in the Company Recommendation (as defined in Section 6.1(b)), may amend or
supplement the Proxy Statement (including by incorporation by reference)
pursuant to a Qualifying Amendment to effect such a Change. The Company will use
reasonable best efforts to cause the Proxy Statement to be mailed to the
Company's stockholders as soon as reasonably practicable after the Form S-4 is
declared effective under the Securities Act. Parent shall also take any action
(other than qualifying to do business in any jurisdiction in which it is not now
so qualified or to file a general consent to service of process) required to be
taken under any applicable state securities Laws in connection with the issuance
of Parent Common Stock and Parent Convertible Preferred Stock and the Company
shall furnish all information concerning the Company and the holders of Company
Common Stock and Company Convertible Preferred Stock as may be reasonably
requested in connection with any such action. Parent will advise the Company,
promptly after it receives notice thereof, of the time when the Form S-4 has
become effective, the issuance of any stop order, the suspension of the
qualification of the Parent Common Stock or Parent Convertible Preferred Stock
issuable in connection with the Merger for offering or sale in any jurisdiction,
or any request by the SEC for amendment of the Form S-4, and the Company will
advise Parent, promptly after it receives notice thereof, of any request by the
SEC for amendment of the Proxy Statement. If at any time prior to the Effective
Time any information relating to Parent or the Company, or any of their
respective Affiliates, officers or directors, should be discovered by Parent or
the Company which should be set forth in an amendment or supplement to any of
the Form S-4 or the Proxy Statement so that any of such documents would not
include any misstatement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, the party which discovers such information
shall promptly notify the other party hereto and, to the extent required by Law,
rules or regulations, an appropriate amendment or supplement describing such
information shall be promptly filed with the SEC and disseminated to the
stockholders of the Company.
(b) The Company shall duly take all lawful action to call, give
notice of, convene and hold a meeting of stockholders of the Company on a date
as soon as reasonably practicable following the effectiveness of the Form S-4
("Company Stockholder Meeting") for the purpose of obtaining the Company
Requisite Vote; provided, however, that the Company shall be permitted to delay
or postpone convening the Company Stockholder Meeting to the extent the Board of
Directors of the Company or any committee thereof, after consultation with
outside legal counsel, reasonably believes that such delay or postponement is
consistent with its fiduciary duties under applicable Law. The Board of
Directors of the Company shall recommend adoption of this Agreement by the
stockholders of the Company to the effect as set forth in Section 3.3(b) (the
"Company Recommendation"), and shall not (x) withdraw, modify or qualify (or
publicly propose to withdraw, modify or qualify) (a "Change") in any manner
adverse to Parent such recommendation or (y) approve, adopt or recommend any
Acquisition Proposal (any action described in clauses (x) or (y) being referred
to herein as a "Change in the Company Recommendation"); provided the foregoing
shall not prohibit accurate disclosure (and such disclosure shall not be deemed
to be a Change in the Company Recommendation) of factual information regarding
the business, financial condition or results of operations of Parent or the
Company or the fact that an Acquisition Proposal has been made, the identity of
the party making such proposal or the material terms of such proposal in the
Proxy Statement or otherwise, to the extent the Company in good faith determines
that such information, facts, identity or terms is required to be disclosed
under applicable Law; provided further, that the Board of Directors of the
Company may make a Change in the Company Recommendation pursuant to Section
6.4(d).
(c) The Company and Parent shall coordinate and cooperate in
connection with (i) the preparation of the Form S-4, the Proxy Statement and any
other filings that are required to consummate the Merger and any related
transactions contemplated hereby, (ii) determining whether any action by or in
respect of, or filing with, any Governmental Entity is required (or any actions
are required to be taken under, or consents, approvals or waivers are required
to be obtained from parties to, any Company Material Contracts and Company
Benefit Plans) in connection with the Merger or the other transactions
contemplated by this Agreement, and (iii) using reasonable best efforts to
timely take any such actions (including seeking any such consents, approvals or
waivers) or making any such filings or furnishing information required in
connection therewith or with the Form S-4, the Proxy Statement or any other
filings.
Section 6.2 Access to Information/Employees.
(a) Upon reasonable notice, and subject to applicable Law, the
Company shall (and shall cause its Subsidiaries to) afford to the officers,
employees, accountants, counsel, financial advisors, financing sources and other
authorized Representatives of the Parent reasonable access during normal
business hours and upon reasonable prior notice to the Company during the period
prior to the Effective Time, to all its and its Subsidiaries' properties, books,
Contracts, commitments, records, officers and employees and, during such period
as Parent may from time to time reasonably request, and during such period the
Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent
all other information concerning it, its Subsidiaries and each of their
respective businesses, properties and personnel as Parent may reasonably request
(including consultation with respect to litigation matters and material
inquiries from the FDA); provided, however, that the Company may restrict the
foregoing access and the disclosure of information pursuant to Section 6.12 to
the extent that (i) in the reasonable judgment of the Company, any Law
applicable to the Company requires the Company or its Subsidiaries to restrict
or prohibit access to any such properties or information, (ii) in the reasonable
judgment of the Company, the information is subject to confidentiality
obligations to a Third Party, (iii) such disclosure would result in disclosure
of any trade secrets of Third Parties or (iv) disclosure of any such information
or document could result in the loss of attorney-client privilege (provided that
the Company and/or its counsel shall use their reasonable best efforts to enter
into such joint defense agreements or other arrangements, as appropriate, so as
to allow for such disclosure in a manner that does not result in the loss of
attorney client privilege); provided, however, that with respect to clauses (i)
through (iv) of this Section 6.2(a), the Company shall use its commercially
reasonable best efforts to (A) obtain the required consent of such third party
to provide such access or disclosure or (B) develop an alternative to providing
such information so as to address such matters that is reasonably acceptable to
Parent and the Company.
(b) With respect to the information disclosed pursuant to Section
6.2(a) or Section 6.12, each of Parent and the Company shall comply with, and
shall cause such party's Representatives to comply with, all of its obligations
under the Confidentiality Agreement, which agreement shall remain in full force
and effect in accordance with its terms.
Section 6.3 Reasonable Best Efforts.
(a) Subject to the terms and conditions of this Agreement, each
party will use its reasonable best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under this Agreement and applicable Laws and regulations to consummate
the Merger and the other transactions contemplated by this Agreement as soon as
practicable after the date hereof, including (i) preparing and filing, in
consultation with the other party and as promptly as practicable and advisable
after the date hereof, all documentation to effect all necessary applications,
notices, petitions, filings, Tax ruling requests and other documents and to
obtain as promptly as practicable all consents, clearances, waivers, licenses,
orders, registrations, approvals, permits, Tax rulings and authorizations
necessary or advisable to be obtained from any Third Party and/or any
Governmental Entity in order to consummate the Merger or any of the other
transactions contemplated by this Agreement and (ii) taking all reasonable steps
as may be necessary to obtain all such material consents, clearances, waivers,
licenses, registrations, permits, authorizations, Tax rulings, orders and
approvals. In furtherance and not in limitation of the foregoing, each party
hereto agrees to make or cause to be made, in consultation and cooperation with
the other and as promptly as practicable and advisable after the date hereof,
(i) an appropriate filing of a Notification and Report Form pursuant to the HSR
Act, (ii) all appropriate filings required pursuant to the EC Merger Regulation,
(iii) all appropriate filings required pursuant to the China Anti-Monopoly Law
and (iv) all other necessary registrations, declarations, notices and filings
relating to the Merger with other Governmental Entities under any other
antitrust, competition, trade regulation or other Regulatory Law (including
under applicable Regulatory Law in Australia and Canada) with respect to the
transactions contemplated hereby and to respond to any inquiries received and
supply as promptly as practicable any additional information and documentary
material that may be requested pursuant to the HSR Act and any other Regulatory
Law and to take all other actions reasonably necessary to cause the expiration
or termination of the applicable waiting periods under the HSR Act and any other
Regulatory Law as soon as practicable and not extend any waiting period under
the HSR Act or any other Regulatory Law or enter into any agreement with a
Governmental Entity not to consummate the transactions contemplated by this
Agreement, except with the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed. If necessary to obtain
any regulatory approval pursuant to any Regulatory Law, or if any administrative
or judicial Action, including any Action by a private party, is instituted (or
threatened to be instituted by a Governmental Entity), challenging the Merger or
any other transaction contemplated by this Agreement as violative of any
Regulatory Law, each of Parent and the Company shall cooperate with each other
to (x) obtain any regulatory approval, (y) contest and resist any such Action,
or (z) avoid the entry of or have vacated or terminated, lifted, reversed or
overturned any decree, judgment, injunction, or other order (whether temporary,
preliminary or permanent) that would restrain, prevent or delay the Closing or
the other transactions contemplated herein.
(b) To the extent permissible under applicable Law, each of Parent
and the Company shall, in connection with the efforts referenced in Section
6.3(a) to obtain all requisite approvals, clearances and authorizations for the
transactions contemplated by this Agreement under the HSR Act or any other
Regulatory Law, use its reasonable best efforts to (i) cooperate in all respects
with each other in connection with any filing or submission and in connection
with any investigation or other inquiry, including any proceeding initiated by a
private party, (ii) promptly inform the other party of any communication
received by such party from, or given by such party to, the Antitrust Division
of the Department of Justice (the "DOJ"), the Federal Trade Commission (the
"FTC") or any other Governmental Entity and of any material communication
received or given in connection with any proceeding by a private party, in each
case regarding any of the transactions contemplated hereby, (iii) permit the
other party, or the other party's legal counsel, to review any communication
given by it to, and consult with each other in advance of any meeting or
conference with, the DOJ, the FTC or any such other Governmental Entity or, in
connection with any proceeding by a private party, with any other Person, (iv)
give the other party the opportunity to attend and participate in such meetings
and conferences to the extent allowed by applicable Law or by the applicable
Governmental Entity, (v) in the event one party is prohibited by applicable Law
or by the applicable Governmental Entity from participating in or attending any
meetings or conferences, keep the other promptly and reasonably apprised with
respect thereto and (vi) cooperate in the filing of any memoranda, white papers,
filings, correspondence, or other written communications explaining or defending
the transactions contemplated hereby, articulating any regulatory or competitive
argument, and/or responding to requests or objections made by any Governmental
Entity.
(c) If any objections are asserted with respect to the transactions
contemplated hereby under any Regulatory Law or if any suit or proceeding,
whether judicial or administrative, is instituted by any Governmental Entity or
any private party challenging any of the transactions contemplated hereby as
violative of any Regulatory Law, each of Parent and the Company shall use its
reasonable best efforts to: (i) oppose or defend against any action to prevent
or enjoin consummation of this Agreement (and the transactions contemplated
herein), and/or (ii) take such action as reasonably necessary to overturn any
regulatory action by any Government Entity to block consummation of this
Agreement (and the transactions contemplated herein), including by defending any
suit, action, or other legal proceeding brought by any Governmental Entity in
order to avoid entry of, or to have vacated, overturned or terminated, including
by appeal if necessary, in order to resolve any such objections or challenge as
such Governmental Entity or private party may have to such transactions under
such Regulatory Law so as to permit consummation of the transactions
contemplated by this Agreement, provided that Parent and Company shall cooperate
with one another in connection with all proceedings related to the foregoing and
Parent shall have final decision-making authority on any action or decision
required to insure that Parent can meet its obligations in this Section 6.3 and
its ability to consummate the transaction.
(d) Notwithstanding the foregoing, and subject to the remainder of
this Section 6.3(d) and Section 6.3(e), Parent shall and, shall cause its
Subsidiaries to, propose, negotiate, offer to commit and effect (and if such
offer is accepted, commit to and effect), by consent decree, hold separate
order, or otherwise, the sale, divestiture or disposition of such assets or
businesses of Parent or any of its Subsidiaries, or effective as of the
Effective Time, the Company or its Subsidiaries, or otherwise offer to take or
offer to commit to take any action (including any action that limits its freedom
of action, ownership or control with respect to, or its ability to retain or
hold, any of the businesses, assets, product lines, properties or services of
Parent, any of its Subsidiaries, the Surviving Corporation or its Subsidiaries)
which it is lawfully capable of taking and if the offer is accepted, take or
commit to take such action, in each case, as may be required in order to avoid
the commencement of any Action to prohibit the Merger or any other transaction
contemplated by this Agreement, or if already commenced, to avoid the entry of,
or to effect the dissolution of, any injunction, temporary restraining order or
other order in any Action so as to enable the Closing to occur as soon as
reasonably possible (and in any event, not later than the Initial Termination
Date, or if such date is extended pursuant to the terms of Section 8.1(b), the
Termination Date). Notwithstanding the foregoing, neither Parent nor any of its
Subsidiaries shall be required to propose, negotiate, commit to or effect any
such sale, divestiture or disposition of assets or business of Parent or the
Company, or any of their respective Subsidiaries, or offer to take or offer to
commit to take any such action where such action, sale, divestiture or
disposition, individually or in the aggregate, would be of assets or a business
of the Company or its Subsidiaries or Parent or any of its Subsidiaries, and
such action, sale, divestiture or disposition would result in the one year loss
of net sales revenues (as measured by net 2008 sales revenue) in excess of
$3,000,000,000. For purposes of calculating the loss of net sales revenue in the
preceding sentence, the least amount of lost revenues (as measured by net 2008
sales revenue) as may be required to avoid the commencement of any Action to
prohibit the Merger or any other transaction contemplated by this Agreement, or
if already commenced, to avoid the entry of, or to effect the dissolution of,
any injunction, temporary restraining order or other order in any Action, shall
be used in the event that Parent elects to offer any action, sale, divestiture
or disposition that would result in a higher loss of net sales revenue (as
measured by net 2008 sales revenue) than reasonably required to achieve such
result.
(e) Notwithstanding anything in this Agreement to the contrary, the
Company shall not, without the consent of Parent, publicly or before any
Governmental Entity or other third party, offer, suggest, propose or negotiate,
and shall not commit to or effect, by consent decree, hold separate order or
otherwise, any sale, divestiture, disposition, prohibition or limitation or
other action of a type described in Section 6.3(d).
Section 6.4 Acquisition Proposals.
(a) The Company agrees that it shall not and shall cause its
Subsidiaries not to, and shall use its reasonable best efforts to cause its and
its Subsidiaries' Representatives not to, directly or indirectly, (i) initiate,
solicit or knowingly encourage any inquiries or the making of any proposal or
offer from a Third Party relating to any Acquisition Proposal, (ii) enter into
or participate in any substantive discussion or negotiation with respect to, or
provide any confidential information or data to any Person relating to, an
Acquisition Proposal, (iii) enter into any merger agreement, letter of intent,
agreement in principle, share purchase agreement, asset purchase agreement,
share exchange agreement, option agreement or other similar Contract relating to
an Acquisition Proposal or enter into any Contract or agreement in principle
requiring the Company to abandon, terminate or breach its obligations hereunder
or fail to consummate the transactions contemplated hereby, (iv) take any action
to make the provisions of any "fair price," "moratorium," "control share
acquisition," "business combination" or other similar anti-takeover statute or
regulation (including any transaction under, or a Third Party becoming an
"interested shareholder" under, Section 203 of the DGCL), or any restrictive
provision of any applicable anti-takeover provision in the Company's certificate
of incorporation or bylaws, inapplicable to any transactions contemplated by an
Acquisition Proposal (and, to the extent permitted thereunder, the Company shall
promptly take all steps necessary to terminate any waiver that may have been
heretofore granted, to any Person other than Parent or any of Parent's
Affiliates, under any such provisions) or (v) resolve, propose or agree to do
any of the foregoing. The Company shall immediately cease and cause to be
terminated any solicitation, discussion or negotiation with any Persons
conducted prior to the execution of this Agreement by the Company, its
Subsidiaries or any of the Company's Representatives with respect to any
Acquisition Proposal and shall promptly request the return or destruction of all
confidential information provided by or on behalf of the Company or any of its
Subsidiaries to such Person in connection with the consideration of any
Acquisition Proposal to the extent that the Company is entitled to have such
documents returned or destroyed.
(b) Notwithstanding anything to the contrary contained in Section
6.4(a), if at any time following the date hereof and prior to the time on which
the Company has received the Company Requisite Vote, (i) in response to an
unsolicited Acquisition Proposal or any inquiry relating to a potential
Acquisition Proposal made or received after the date of this Agreement from a
Third Party whom the Company's Board of Directors (or the Executive Committee
thereof) determines, in good faith, is credible and is reasonably capable of
making a Superior Proposal (an "Inquiry"), in each case, under circumstances not
involving a breach of Section 6.4(a) in any material respect, the Company may
furnish information with respect to the Company and its Subsidiaries to the
Person making such Acquisition Proposal or Inquiry and (ii) participate in
discussions or negotiations with the Person making such Acquisition Proposal or
Inquiry; provided that the Company (A) will not, and will not allow the
Company's Subsidiaries and the Company's Representatives to, disclose any
information to such Person without first entering into a confidentiality
agreement with terms overall no less favorable to the Company than those
contained in the Confidentiality Agreement and (B) will, subject to applicable
Law, promptly provide to Parent any information concerning the Company or its
Subsidiaries provided to such other Person which was not previously provided to
Parent.
(c) The Company shall promptly notify Parent in writing of any
Acquisition Proposal or Inquiry (and in no event later than 24 hours following
the Company's, any of its Subsidiaries' or any Representative's receipt of the
Acquisition Proposal or Inquiry), such notice to include the identity of the
Person making such Acquisition Proposal or Inquiry and a copy of such
Acquisition Proposal or Inquiry, including draft agreements or term sheets
submitted in connection therewith (or, where no such copy is available, a
reasonably detailed description of such Acquisition Proposal or Inquiry),
including any modifications thereto. The Company shall keep Parent reasonably
informed on a reasonably current basis of the status of any material
developments with respect to an Acquisition Proposal or Inquiry and shall
provide Parent with copies of all written inquiries and correspondence with
respect to such Acquisition Proposal or Inquiry no later than 24 hours following
the receipt thereof. The Company shall not, and shall cause the Company's
Subsidiaries not to, enter into any Contract with any Person subsequent to the
date of this Agreement, and neither the Company nor any of its Subsidiaries is
party to any Contract, in each case, that prohibits the Company from providing
such information to Parent. The Company shall not, and shall cause the Company's
Subsidiaries not to, terminate, waive, amend or modify, or grant permission
under, the standstill provisions of any agreement to which the Company or any of
its Subsidiaries is a party which prohibits the counterparty from making,
effecting, entering into, making or participating in any solicitation of proxies
in respect of, seeking, proposing or otherwise acting alone or in concert with
others, to influence the management or Board of the Directors of the Company
with respect to, or advising, assisting, knowingly encouraging or acting as a
financing source for, an Acquisition Proposal. The Company shall, and shall
cause its Subsidiaries to, enforce the standstill provisions of any such
agreement, and the Company shall, and shall cause its Subsidiaries to,
immediately take all steps necessary to terminate any waiver that may have been
heretofore granted, to any Person other than Parent or any of Parent's
Affiliates, under any such provisions except, in each case, if the Board of
Directors concludes in good faith, after consultation with outside counsel, that
the failure to take such action could reasonably be determined to be
inconsistent with its fiduciary duties under applicable Law.
(d) Notwithstanding anything in this Agreement to the contrary, the
Company's Board of Directors may at any time prior to the time that the Company
receives the Company Requisite Vote (i) effect a Change in the Company
Recommendation in response to an Intervening Event if the Company's Board of
Directors concludes in good faith, after consultation with outside counsel, that
the failure to take such action could reasonably be determined to be
inconsistent with its fiduciary duties under applicable Law, (ii) effect a
Change in the Company Recommendation in response to an Acquisition Proposal if
the Company's Board of Directors concludes in good faith, after consultation
with outside counsel, that the failure to take such action could reasonably be
determined to be inconsistent with its fiduciary duties under applicable Law,
and/or (iii) if the Company receives an Acquisition Proposal which the Company's
Board of Directors concludes in good faith, after consultation with outside
counsel and the Company's financial advisors, constitutes a Superior Proposal,
terminate this Agreement pursuant to Section 8.1(h) to enter into a definitive
agreement with respect to such Superior Proposal (the "Alternative Acquisition
Agreement"); provided, however, that the Company shall have provided prior
written notice to Parent, at least three (3) Business Days in advance, of its
intention to take any such action referred to in clause (i), (ii) and (iii).
(e) Nothing contained in this Section 6.4 shall prohibit the
Company's Board of Directors from (i) taking and disclosing to the stockholders
of the Company a position contemplated by Rule 14e-2(a) promulgated under the
Exchange Act or making a statement contemplated by Item 1012(a) of Regulation
M-A or Rule 14d-9 promulgated under the Exchange Act or (ii) making any
disclosure to the Company's stockholders if the Board of Directors of the
Company determined in good faith, after consultation with its outside counsel,
that the failure to make such disclosure could reasonably be determined to be
inconsistent with applicable Law; provided, however, that any disclosure of a
position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the
Exchange Act other than a "stop, look and listen" or similar communication of
the type contemplated by Rule 14d-9(f) under the Exchange Act, an express
rejection of any applicable Acquisition Proposal or an express reaffirmation of
its recommendation to its stockholders in favor of the Merger shall be deemed to
be a Change of Board Recommendation.
For purposes of this Agreement, "Acquisition Proposal" means any
offer or proposal by any Third Party concerning any (i) merger, consolidation,
other business combination or similar transaction involving the Company or any
of its Subsidiaries, pursuant to which such Person would own 15% or more of the
consolidated assets, revenues or net income of the Company and its Subsidiaries,
taken as a whole, (ii) sale, lease, license or other disposition directly or
indirectly by merger, consolidation, business combination, share exchange, joint
venture or otherwise, of assets of the Company (including Equity Interests of
any of its Subsidiaries) or any Subsidiary of the Company representing 15% or
more of the consolidated assets, revenues or net income of the Company and its
Subsidiaries, taken as a whole, (iii) issuance or sale or other disposition
(including by way of merger, consolidation, business combination, share
exchange, joint venture or similar transaction) of Equity Interests representing
15% or more of the voting power of the Company, (iv) transaction or series of
transactions in which any Person will acquire beneficial ownership or the right
to acquire beneficial ownership of Equity Interests representing 15% or more of
the voting power of the Company or (v) any combination of the foregoing.
For purposes of this Agreement, "Superior Proposal" shall mean a
bona fide written Acquisition Proposal (except the references therein to "15%"
shall be replaced by "50%"), which, in the good faith judgment of the Company's
Board of Directors (after consultation with the Company's financial advisors and
outside counsel), taking into account the various legal, financial and
regulatory aspects of the proposal, including the financing terms thereof (it
being understood that the inclusion of any "seller financing" in such
Acquisition Proposal, pursuant to which the Company's stockholders may be issued
debt instruments as part of the consideration payable in connection with the
transactions contemplated by such Acquisition Proposal, shall not create any
inference that, nor be used by Parent to assert or otherwise claim that, an
Acquisition Proposal is not a Superior Proposal), and the Person making such
proposal (i) if accepted, is reasonably likely to be consummated, and (ii) if
consummated would result in a transaction that is more favorable to the
Company's stockholders, from a financial point of view, than the Merger.
Section 6.5 Employee Benefits Matters.
(a) At the Effective Time, Parent shall provide employment to, or
shall cause the Surviving Corporation to provide employment to, employees who
were employed by the Company or its Subsidiaries as of the Effective Time
("Covered Employees").
(b) From and after the Effective Time until the second anniversary
of the Effective Time (the "Benefits Continuation Period"), Parent shall
provide, or shall cause the Surviving Corporation to provide, to each Covered
Employee: (i) the same annual base salary or wage rates in effect as of the date
of this Agreement and the same annual incentive and bonus opportunities provided
by the Company in respect of 2008 as set forth under the applicable Company
Benefit Plan (and, for the avoidance of doubt, for purposes of annual cash bonus
opportunities to be provided to Covered Employees whose annual cash bonuses in
respect of 2008 were discretionary, the amount of such bonuses actually paid to
such employees shall be deemed the amount of their "opportunity" for purposes of
this provision), and (ii) employee benefits which are substantially comparable,
in the aggregate, to those provided to similarly situated Covered Employees (as
a group), in each case by the Company and its Subsidiaries immediately prior to
the Effective Time; provided, however, that (A) the foregoing covenants shall
not take into account any change in control- or transaction-based retention,
transition, stay or similar bonus arrangements for purposes of defining either
annual incentive and bonus opportunities or employee benefits as used in this
Section 6.5(b)); (B) with respect to Covered Employees who are subject to
collective bargaining agreements, compensation and benefits shall be provided in
accordance with the applicable collective bargaining agreements; (C) so long as
Parent shall, or shall cause the Surviving Corporation to, honor the provisions
of Section 6.5(c) below with respect to a particular Covered Employee (other
than any Covered Employee who participates in a Company Benefit Plan that is a
Sales Force incentive or Integrated Metrics Reports Bonus Program), Parent shall
be deemed to have satisfied the portion of the covenant contained in this
Section 6.5(b) with respect to annual cash incentive or bonus opportunities to
be provided to such Covered Employee in respect of 2009; (D) so long as Parent
shall, or shall cause the Surviving Corporation to, honor the provisions of
Section 6.5(d) or Section 6.5(g) (as it relates to the CIC Severance
Agreements), as applicable to a given Covered Employee, Parent shall be deemed
to have satisfied the portion of the covenant contained in this Section 6.5(b)
with respect to any obligation to provide severance payments and/or benefits to
any such Covered Employee as may otherwise be required to be provided hereunder;
and (E) with respect to any Covered Employees based outside the United States,
Parent's obligations under this Section 6.5(b) shall be modified to the extent
necessary to comply with applicable Laws of the foreign countries and political
subdivisions thereof in which such employees are based.
(c) Parent shall, or shall cause the Surviving Corporation to, and
the Company shall, in each case honor all of the obligations and covenants
relating to 2009 Bonuses (as defined on Section 5.1(r) of the Company Disclosure
Letter) as are, and to the fullest extent, set forth in Section 6.5(c) of the
Company Disclosure Letter.
(d) At all times during the Benefits Continuation Period, Parent
shall, or shall cause the Surviving Corporation to, maintain the Company Special
Transaction Severance Plan in accordance with its terms as in effect on the date
hereof (as such plan is identified on Section 3.11(a) of the Company Disclosure
Letter).
(e) At all times following the Effective Time, Parent shall, or
shall cause the Surviving Corporation to, treat former employees of the Company
or any of its Subsidiaries who, as of the Effective Time, are eligible to
receive post-retirement health benefits under the applicable Company Benefit
Plans, no less favorably than similarly situated former employees of the Parent
with respect to post-retirement health benefits.
(f) With respect to any Parent Benefit Plans in which Covered
Employees first become eligible to participate on or after the Effective Time
(collectively, "New Benefit Plans"), Parent shall, or shall cause the Surviving
Corporation to: (i) waive any pre-existing condition exclusions and waiting
periods with respect to participation and coverage requirements applicable to
Covered Employees under any such New Benefit Plans providing medical, dental or
vision benefits to the same extent such limitation would have been waived or
satisfied under the analogous Company Benefit Plan in which such Covered
Employee participated immediately prior to the Effective Time, (ii) provide each
Covered Employee with credit for any co-payments and deductibles paid prior to
the Effective Time during the calendar year in which such Effective Time occurs
(or if later, paid in the year in which such Covered Employee is first eligible
to participate), to the same extent such credit was given under the analogous
Company Benefit Plan prior to the Effective Time, in satisfying any applicable
deductible or out-of-pocket requirements under any such New Benefit Plan in
which the Covered Employee participates during the calendar year in which such
Effective Time occurs (or if later, the year in which such Covered Employee is
first eligible to participate) and (iii) recognize all service of each Covered
Employee prior to the Effective Time to the Company, its Subsidiaries and any
predecessor entities of the Company or any of its Subsidiaries (as well as
service to Parent and its Affiliates (including the Surviving Corporation) after
the Effective Time), for all purposes (including, but not limited to,
eligibility to participate, vesting credit, entitlement to benefits and benefit
accrual) of any New Benefit Plans (including those providing for vacation and
paid time-off) in which any Covered Employee participates after the Effective
Time; provided, however, that the foregoing shall not apply to the extent it
would result in any duplication of benefits for the same period of service.
(g) From and after the Effective Time, Parent shall honor, fulfill
and discharge, or shall cause the Surviving Corporation to honor, fulfill and
discharge, in accordance with its respective terms as in effect as of the date
hereof or as may be amended or terminated after the date hereof with the prior
written consent of Parent, each employment, change in control, severance and
termination agreement between the Company or any of its Subsidiaries and any
director, officer or employee of such company listed on Section 3.11(a) of the
Company Disclosure Letter (the "CIC Severance Agreements") and the obligations
of Company and its Subsidiaries as of the Effective Time under each deferred
compensation plan or agreement listed on Section 3.11(a) of the Company
Disclosure Letter.
(h) Nothing in this Section 6.5 shall be construed to (i) limit the
right of Parent or any of its Subsidiaries (including, following the Closing
Date, the Surviving Corporation and its Subsidiaries) to amend or terminate any
Company Benefit Plan or other employee benefit plan, to the extent such
amendment or termination is permitted by the terms of the applicable plan, or
(ii) require Parent or any of its Subsidiaries (including, following the Closing
Date, the Surviving Corporation and its Subsidiaries) to retain the employment
of any particular Covered Employee for any fixed period of time following the
Closing Date.
(i) Without limiting the generality of Section 9.5, the provisions
of this Section 6.5 are solely for the benefit of the parties to this Agreement,
and no current or former employee, director or independent contractor or any
other individual associated therewith shall be regarded for any purpose as a
third-party beneficiary of the Agreement, and nothing herein shall be construed
as an amendment to any Company Benefit Plan or other employee benefit plan for
any purpose.
(j) Prior to the Effective Time, the Company shall reacquire from
the Stock Trust any shares of Restricted Stock held by the Stock Trust (the
"Excess Shares" and, upon their acquisition by the Company, the "Reacquired
Shares"); provided, however, that the Company shall not reacquire such Excess
Shares in exchange for payment of any consideration to the Stock Trust, unless
such consideration shall be paid to such Stock Trust with express instructions
to the trustee thereof to pay such consideration to the applicable beneficiaries
of the consideration in respect of such Reacquired Shares in full satisfaction
of the obligations of the Company under applicable Company Stock Plans in
respect of such Reacquired Shares. From and after the date hereof until the
Effective Time, the Company shall not cause the Stock Trust to sell or otherwise
dispose of any Excess Shares except as permitted under this Section 6.5(j).
Section 6.6 Fees and Expenses. Subject to Section 6.13 and Section
8.2, whether or not the Merger is consummated, all Expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such Expenses, except if the Merger is consummated,
the Surviving Corporation or its relevant Subsidiary shall pay, or cause to be
paid, any and all property or transfer taxes imposed on the Company or its
Subsidiaries.
Section 6.7 Directors' and Officers' Indemnification and Insurance.
(a) From and after the Effective Time, Parent shall, and shall cause
the Surviving Corporation to, (i) indemnify, defend and hold harmless, all past
and present directors, officers and employees of the Company and its
Subsidiaries (in all of their capacities) and all fiduciaries under any Company
Benefit Plans (collectively, the "Indemnified Parties") against any costs,
expenses (including attorney's fees and expenses and disbursements), judgments,
fines, losses, claims damages or liabilities incurred in connection with any
claim, action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of or pertaining to the fact that
the Indemnified Party is or was a director, officer, employee or fiduciary of
the Company or any of its Subsidiaries or a fiduciary under any Company Benefit
Plan or is or was serving at the request of the Company or any of its
Subsidiaries as a director, officer or employee of any other corporation,
limited liability company, partnership, joint venture, trust or other business
or non-profit enterprise (including an employee benefit plan) whether asserted
or claimed prior to, at or after the Effective Time (including with respect to
acts or omissions occurring in connection with this Agreement and the
consummation of the transactions contemplated hereby), and provide advancement
of expenses to the Indemnified Parties (within ten (10) days of receipt by
Parent or the Surviving Corporation from an Indemnified Party of a request
therefor), in all such cases to the same extent that such persons are
indemnified or have the right to advancement of expenses as of the date of this
Agreement by the Company pursuant to the Company's certificate of incorporation,
bylaws and indemnification agreements, if any, or by any one of the Company's
Subsidiaries pursuant to such Subsidiary's certificate of incorporation, bylaws
and indemnification agreements of any Subsidiary of the Company, if any, in
existence on the date hereof, (ii) without limitation to clause (i), to the
fullest extent permitted by applicable Law, include and cause to be maintained
in effect in the Surviving Corporation's (or any successor's) certificate of
incorporation and bylaws for a period of six (6) years after the Effective Time,
the current provisions regarding elimination of liability of directors, and
indemnification of and advancement of expenses to directors, officers and
employees of the Company, contained in the certificate of incorporation and
bylaws of the Company and (iii) not settle, compromise or consent to the entry
of any judgment in any proceeding or threatened Action (and in which
indemnification could be sought by an Indemnified Party hereunder), unless such
settlement, compromise or consent includes an unconditional release of such
Indemnified Party from all liability arising out of such Action or such
Indemnified Party otherwise consents in writing, and cooperates in the defense
of such proceeding or threatened Action. Prior to the Effective Time, the
Company shall and, if the Company is unable to, Parent shall cause the Surviving
Corporation to, obtain and fully pay for "tail" prepaid insurance policies with
a claims period of at least six (6) years from and after the Effective Time from
an insurance carrier with the same or better rating as the Company's current
insurance carrier with respect to directors' and officers' liability insurance
and fiduciary insurance (collectively, "D&O Insurance"), for the Indemnified
Parties, with terms, conditions, retentions and levels of coverage at least as
favorable as the Company's existing D&O Insurance with respect to matters
existing or occurring prior to the Effective Time (including with respect to
acts or omissions occurring in connection with this Agreement and the
consummation of the transactions contemplated hereby). If such "tail" prepaid
insurance policies have been obtained, Parent shall, and shall cause the
Surviving Corporation after the Effective Time, to maintain such policies in
full force and effect, for its full term, and to continue to honor its
respective obligations thereunder. If the Company and the Surviving Corporation
for any reason fail to obtain such "tail" prepaid insurance policies as of the
Effective Time, the Surviving Corporation shall, and Parent shall cause the
Surviving Corporation to, continue to maintain in effect, at no expense to the
beneficiaries, for a period of at least six (6) years from and after the
Effective Time for the Indemnified Parties, the D&O Insurance (provided that
Parent (or any successor) may substitute therefor policies of at least the same
terms, conditions, retentions and levels of coverage and amounts which are, in
the aggregate, as favorable to the Indemnified Parties as provided in the
existing policies as of the date of this Agreement) or, if such insurance is
unavailable, the Surviving Corporation shall, and Parent shall cause the
Surviving Corporation to, purchase the best available D&O Insurance for such
six-year period from an insurance carrier with the same or better credit rating
as the Company's current insurance carrier with respect to the Company's
existing D&O Insurance with terms, conditions, retentions and with levels of
coverage at least as favorable as provided in the Company's existing policies as
of the date of this Agreement with respect to claims, actions, suits,
proceedings or investigations, whether civil, criminal, administrative or
investigative, arising out of or pertaining to facts or events that occurred
prior to, at or after the Effective Time (including with respect to acts or
omissions occurring in connection with this Agreement and the consummation of
the transactions contemplated hereby), provided, however, that in no event will
Parent or the Surviving Corporation be required to expend annually in excess of
300% of the annual premium currently paid by the Company for such coverage (and
to the extent the annual premium would exceed 300% of the annual premium
currently paid by the Company for such coverage, the Surviving Corporation shall
use all reasonable efforts to cause to be maintained the maximum amount of
coverage as is available for such 300% of such annual premium). The obligations
of Parent and the Surviving Corporation under this Section 6.7 shall not be
terminated, amended or modified in any manner so as to adversely affect any
Indemnified Party (including their successors, heirs and legal representatives)
to whom this Section 6.7 applies without the consent of such affected
Indemnified Party (it being expressly agreed that the Indemnified Parties to
whom this Section 6.7 applies shall be third party beneficiaries of this Section
6.7, and this Section 6.7 shall be enforceable by such Indemnified Parties and
their respective successors, heirs and legal representatives and shall be
binding on all successors and assigns of Parent and the Surviving Corporation).
(b) If Parent or any of its successors or assigns (i) shall
consolidate with or merge into any other corporation or entity and shall not be
the continuing or surviving corporation or entity of such consolidation or
merger or (ii) shall transfer all or substantially all of its properties and
assets to any Person, then, and in each such case, proper provisions shall be
made so that the successors and assigns of Parent shall assume all of the
obligations set forth in this Section 6.7.
(c) The rights of the Indemnified Parties under this Section 6.7
shall be in addition to any rights such Indemnified Parties may have under the
certificate of incorporation or bylaws of the Surviving Corporation or any of
its Subsidiaries, or under any applicable Contracts or Laws, and Parent shall,
and shall cause the Surviving Corporation to, honor and perform under all
indemnification agreements entered into by the Company or any of its
Subsidiaries.
Section 6.8 Public Announcements. Parent and the Company have agreed
upon the form and substance of the press release to be issued by Parent, on the
one hand, and the Company, on the other hand, announcing the execution of this
Agreement and the Merger, which shall be issued promptly following the execution
and delivery hereof. Subject to Section 6.1, each of Parent and the Company
agrees that no public release, announcement, and/or other public statement with
respect to the transactions contemplated hereby shall be issued prior to
consulting with and considering in good faith the views of the other party, and
except as such public release, announcement, and/or other public statement may
be required by applicable Law or the rules or regulations of any applicable
United States securities exchange or regulatory body or Governmental Entity to
which the relevant party is subject, in which case the party required to make
the public release, announcement, and/or other public statement shall use its
commercially reasonable efforts to allow each other party reasonable time to
comment on such public release, announcement, and/or other public statement in
advance of such issuance.
Section 6.9 Listing of Shares of Parent Common Stock and Parent
Convertible Preferred Stock. Parent shall use its reasonable best efforts to
cause the shares of Parent Common Stock and Parent Convertible Preferred Stock,
if any, to be issued in the Merger and such other shares to be reserved for
issuance in connection with the Merger to be approved for listing on the NYSE,
subject to official notice of issuance, prior to the Effective Time.
Section 6.10 Dividends. After the date of this Agreement, each of
Parent and the Company shall coordinate with the other the payment of dividends
with respect to the Parent Common Stock and Company Common Stock and the record
dates and payment dates relating thereto, it being the intention of the parties
that holders of Parent Common Stock and Company Common Stock shall not receive
two dividends, or fail to receive one dividend, for any single calendar quarter
with respect to their shares of Parent Common Stock and/or Company Common Stock
or any shares of Parent Common Stock that any such holder receives in exchange
for such shares of Company Common Stock in the Merger. Notwithstanding anything
herein to the contrary, until the earlier of the Effective Time and the
termination of this Agreement in accordance with its terms, Parent agrees that
it shall not declare, set aside, make or pay any quarterly cash dividend or
distribution in excess of the amount contemplated in clause (iii) of Section 4.9
and the Company agrees that it shall not declare, set aside, make or pay any
quarterly cash dividend or distribution in excess of the amount contemplated in
clause (j) of Section 5.1.
Section 6.11 Section 16 Matters. Prior to the Effective Time, each
of Parent and the Company shall take all such steps as may be required to cause
any dispositions of Company Common Stock (including derivative securities with
respect to Company Common Stock) or acquisitions of Parent Common Stock
resulting from the transactions contemplated hereby by each individual who is
subject to the reporting requirements of Section 16(a) of the Exchange Act with
respect to the Company, to be exempt under Rule 16b-3 promulgated under the
Exchange Act, such steps to be taken in accordance with the interpretive
guidance set forth by the SEC.
Section 6.12 Company Cooperation on Certain Matters. After the date
hereof and prior to the Effective Time, Parent and the Company shall establish a
mechanism, subject to applicable Law, reasonably acceptable to both parties by
which the parties will confer on a regular and continued basis regarding the
general status of the ongoing operations of the Company and its Subsidiaries and
integration planning matters and communicate and consult with specific persons
to be identified by each party to the other with respect to the foregoing.
Section 6.13 Financing Cooperation.
(a) Parent shall use its reasonable best efforts to take, or cause
to be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable to consummate and obtain the Financing on the terms and
conditions described in the Commitment Letter, including using reasonable best
efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate
definitive agreements with respect thereto on terms and conditions (including
the "flex" provisions) contemplated by the Commitment Letter and execute and
deliver to the Company a copy thereof concurrently with such execution, (iii)
satisfy on a timely basis all conditions applicable to Parent in the Commitment
Letter that are within its control and comply with its obligations thereunder,
(iv) provide prior to the Effective Time the lenders under the Commitment Letter
with such evidence as may be requested by such lenders to demonstrate the
satisfaction of the condition set forth in Paragraph 2 of Annex D to the
Commitment Letter, including if necessary by requesting that Moody's Investors
Services, Inc. and Standard & Poor's provide written evidence thereof at the
Closing and (v) enforce its rights under the Commitment Letter in the event of a
breach by the financing sources that impedes or delays Closing, including
seeking specific performance of the parties thereunder. In the event that all
conditions to the Commitment Letter have been satisfied or, upon funding will be
satisfied, Parent and Merger Sub shall use their reasonable best efforts to
cause the lenders and the other Persons providing such Financing to fund on the
Closing Date the Financing required to consummate the Merger and the other
transactions contemplated by this Agreement (including by taking enforcement
action, including seeking specific performance, to cause such lenders and the
other Persons providing such Financing to fund such Financing). Parent shall
have the right from time to time to amend, replace, supplement or otherwise
modify, or waive any of its rights under, the Commitment Letter and/or
substitute other debt or equity financing for all or any portion of the
Financing from the same and/or alternative financing sources, provided that any
such amendment, replacement, supplement or other modification to or waiver of
any provision of the Commitment Letter that amends the Financing and/or
substitution of all or any portion of the Financing shall not (A) expand upon
the conditions precedent or contingencies to the Financing as set forth in the
Commitment Letter or (B) prevent or impede or delay the consummation of the
Merger and the other transactions contemplated by this Agreement. Parent shall
be permitted to reduce the amount of Financing under the Commitment Letter in
its reasonable discretion, provided, that Parent shall not reduce the Financing
to an amount committed below the amount that is required, together with the
financial resources of Parent and Merger Sub, including cash on hand and
marketable securities, to consummate the Merger, and provided further that such
reduction shall not (A) expand upon the conditions precedent or contingencies to
the Financing as set forth in the Commitment Letter or (B) prevent or impede or
delay the consummation of the Merger and the other transactions contemplated by
this Agreement. If any portion of the Financing becomes unavailable or Parent
becomes aware of any event or circumstance that makes any portion of the
Financing unavailable, in each case, on the terms and conditions (including the
"flex" provisions) contemplated in the Commitment Letter and such portion is
reasonably required to fund the Merger Consideration, Parent shall use its
reasonable best efforts to arrange and obtain alternative financing from
alternative financial institutions in an amount sufficient to consummate the
transactions contemplated by this Agreement upon conditions no less favorable to
Parent and the Company than those in the Commitment Letter as promptly as
practicable following the occurrence of such event. Parent shall give the
Company prompt oral and written notice (but in any event not later than 48 hours
after the occurrence) of any material breach by any party to the Commitment
Letter or of any condition not likely to be satisfied, in each case, of which
Parent becomes aware or any termination of the Commitment Letter. Parent shall
keep the Company informed on a reasonably current basis of the status of its
efforts to arrange the Financing.
(b) The Company shall provide, and shall cause its Subsidiaries, and
shall use its reasonable best efforts to cause each of its and their respective
Representatives, including legal, tax, regulatory and accounting, to provide all
cooperation reasonably requested by Parent in connection with the Financing
(provided that such requested cooperation does not unreasonably interfere with
the ongoing operations of the Company and its Subsidiaries), including (i)
providing information relating to the Company and its Subsidiaries to the
Financing Parties (including information to be used in the preparation of an
information package regarding the business, operations, financial projections
and prospects of Parent and the Company customary for such financing or
reasonably necessary for the completion of the Financing by the Financing
Parties) to the extent reasonably requested by Parent to assist in preparation
of customary offering or information documents to be used for the completion of
the Financing as contemplated by the Commitment Letter, (ii) participating in a
reasonable number of meetings (including customary one-on-one meetings with the
parties acting as lead arrangers for the Financing and senior management and
Representatives, with appropriate seniority and expertise, of the Company),
presentations, road shows, drafting sessions, due diligence sessions (including
accounting due diligence sessions) and sessions with the rating agencies, (iii)
assisting in the preparation of (A) any customary offering documents, bank
information memoranda, prospectuses and similar documents (including historical
and pro forma financial statements and information) for any of the Financing,
and (B) materials for rating agency presentations, (iv) cooperating with the
marketing efforts for any of the Financing (including consenting to the use of
the Company's and its Subsidiaries' logos; provided that such logos are used
solely in a manner that is not intended to or reasonably likely to harm or
disparage the Company or its Subsidiaries or the reputation or goodwill of the
Company or any of its Subsidiaries), (v) executing and delivering (or using
reasonable best efforts to obtain from its advisors), and causing its
Subsidiaries to execute and deliver (or use reasonable best efforts to obtain
from its advisors), customary certificates (including a certificate of the
principal financial officer of the Company or any Subsidiary with respect to
solvency matters), accounting comfort letters (including consents of accountants
for use of their reports in any materials relating to the Financing), legal
opinions or other documents and instruments relating to guarantees and other
matters ancillary to the Financing as may be reasonably requested by Parent as
necessary and customary in connection with the Financing, (vi) assisting in (A)
the preparation of and entering into one or more credit agreements, currency or
interest hedging agreements, or other agreements or (B) the amendment of any of
the Company's or its Subsidiaries' existing credit agreements, currency or
interest hedging agreements, or other agreements, in each case, on terms
satisfactory to Parent and that are reasonably requested by Parent in connection
with the Financing provided that no obligation of the Company or any of its
Subsidiaries under any such agreements or amendments shall be effective until
the Effective Time, (vii) as promptly as practicable, furnishing Parent and the
Financing Parties with all financial and other information regarding the Company
and its Subsidiaries as may be reasonably requested by Parent to assist in
preparation of customary offering or information documents to be used for the
completion of the Financing as contemplated by the Commitment Letter, (viii)
using its reasonable best efforts, as appropriate, to have its independent
accountants provide their reasonable cooperation and assistance, (ix) using its
reasonable best efforts to permit any cash and marketable securities of the
Company and its Subsidiaries to be made available to the Parent and/or Merger
Sub at the Closing, (x) providing authorization letters to the Financing Parties
authorizing the distribution of information to prospective lenders and
containing a representation to the Financing Parties that the public side
versions of such documents, if any, do not include material non-public
information about the Company or its Affiliates or securities, (xi) using its
reasonable best efforts to ensure that the Financing Parties benefit from the
existing lending relationships of the Company and its Subsidiaries, (xii)
providing audited consolidated financial statements of the Company covering the
three (3) fiscal years immediately preceding the Closing for which audited
consolidated financial statements are currently available, unaudited financial
statements (excluding footnotes) for any interim period or periods of the
Company ended after the date of the most recent audited financial statements and
at least 45 days prior to the Closing Date, (xiii) cooperating reasonably with
Parent's financing sources' due diligence, to the extent customary and
reasonable and to the extent not unreasonably interfering with the business of
the Company and (xiv) terminating and repaying in full the commitments under the
Credit Agreement, dated as of August 2, 2007, among the Company, the lenders
party thereto, and JPMorgan Chase Bank, N.A., as administrative agent, on or
prior to the Closing Date; provided that, until the Effective Time occurs,
neither the Company nor any of its Subsidiaries shall (i) be required to pay any
commitment or other similar fee, (ii) have any liability or any obligation under
any credit agreement or any related document or any other agreement or document
related to the Financing (or alternative financing that Parent may raise in
connection with the transactions contemplated by this Agreement) or (iii) be
required to incur any other liability in connection with the Financing (or any
alternative financing that Parent may raise in connection with the transactions
contemplated by this Agreement) unless reimbursed or reasonably satisfactorily
indemnified by Parent. Parent (i) shall promptly, upon request by the Company,
reimburse the Company for all reasonable out-of-pocket costs (including
reasonable attorneys' fees) incurred by the Company, any of its Subsidiaries or
their respective Representatives in connection with the cooperation of the
Company and its Subsidiaries contemplated by this Section 6.13, (ii)
acknowledges and agrees that the Company, its Subsidiaries and their respective
Representatives shall not have any responsibility for, or incur any liability to
any Person under, the Financing or any alternative financing that Parent may
raise in connection with the transactions contemplated by this Agreement and
(iii) shall indemnify and hold harmless the Company, its Subsidiaries and their
respective Representatives from and against any and all losses, damages, claims,
costs or expenses suffered or incurred by any of them in connection with the
arrangement of the Financing and any information used in connection therewith,
except with respect to any information provided by the Company or any of its
Subsidiaries.
(c) In the event that the Commitment Letter is amended, replaced,
supplemented or otherwise modified, including as a result of obtaining
alternative financing in accordance with Section 6.13(a), or if Parent
substitutes other debt or equity financing for all or a portion of the
Financing, each of Parent and the Company shall comply with its covenants in
Section 6.13(a) and (b) with respect to the Commitment Letter as so amended,
replaced, supplemented or otherwise modified and with respect to such other debt
or equity financing to the same extent that Parent and the Company would have
been obligated to comply with respect to the Financing.
Section 6.14 Convertible Debentures and Company Convertible
Preferred Stock.
(a) If any of the holders of the Convertible Debentures elect to
convert the Convertible Debentures in accordance with the terms of the Fourth
Supplemental Indenture, dated as of December 16, 2003, between the Company and
The Bank of New York (as successor to JPMorgan Chase Bank, N.A.) (the
"Convertible Debenture Indenture"), then the Company shall settle any such
conversion in cash pursuant to its right to elect the form of settlement set
forth in Section 5.03 of the Convertible Debenture Indenture to the extent
permitted by the terms thereof.
(b) Subject to applicable Law, to the extent requested by Parent and
to the extent redeemable under the Indenture and the Convertible Debenture
Indenture, prior to the Effective Time, the Company shall, as promptly as
practicable following such request, use its reasonable best efforts to effect,
prior to the Effective Time, the redemption of any or all of the outstanding
aggregate principal amount of the indebtedness issued under the Convertible
Debenture Indenture in accordance with the terms of the Convertible Debenture
Indenture.
(c) To the extent requested by Parent, as promptly as practicable
following such request, the Company shall use its reasonable best efforts to
effect, prior to the Effective Time, the redemption of all outstanding shares of
Company Convertible Preferred Stock in accordance with the terms of the Company
Convertible Preferred Stock Certificate of Designation and the applicable
provisions of the DGCL.
Section 6.15 Board Representation. Parent shall cause to be
appointed to the Board of Directors of Parent, effective as of the Effective
Time, two (2) of the individuals who serve on the Board of Directors of the
Company as of the date of this Agreement.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligations of the Company, Parent and Merger Sub to
effect the Merger are subject to the satisfaction or waiver (to the extent
permitted by Law) on or prior to the Closing Date of the following conditions:
(a) Stockholder Approval. The Company shall have obtained the
Company Requisite Vote.
(b) No Injunctions or Restraints; Illegality. No Laws shall have
been adopted or promulgated, and no temporary restraining order, preliminary or
permanent injunction or other order, judgment, decision, opinion or decree
issued by a court or other Governmental Entity of competent jurisdiction in the
United States or the European Union shall be in effect, having the effect of
making the Merger illegal or otherwise prohibiting consummation of the Merger.
(c) Regulatory Matters. Each of (i) the waiting period (and any
extension thereof) applicable to the Merger under the HSR Act shall have been
terminated or shall have expired; (ii) the approval of the Merger by the
European Commission shall have been granted pursuant to the EC Merger
Regulation; (iii) the approval of the Merger by China's Ministry of Commerce
shall have been granted and/or deemed to have been granted by expiration of the
applicable waiting period pursuant to the China Anti-Monopoly Law; and (iv) the
approval of the Merger by the antitrust regulators in Canada and Australia shall
have been granted (if such approval is required).
(d) NYSE Listing. The shares of Parent Common Stock and Parent
Convertible Preferred Stock, if any, to be issued in the Merger and such other
shares to be reserved for issuance in connection with the Merger shall have been
approved for listing on the NYSE, subject to official notice of issuance.
(e) Effectiveness of the Form S-4. The Form S-4 shall have been
declared effective by the SEC under the Securities Act. No stop order suspending
the effectiveness of the Form S-4 shall be in effect and no proceedings for that
purpose shall be pending before the SEC.
Section 7.2 Additional Conditions to Obligations of Parent and
Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are
subject to the satisfaction of, or waiver by Parent, on or prior to the Closing
Date of the following conditions:
(a) Representations and Warranties. (i) Each of the representations
and warranties of the Company contained in Section 3.1 (Organization, Good
Standing and Qualification), Sections 3.2(a) and (b) (Capital Structure) and
Section 3.3 (Corporate Authority) shall be true and correct other than in de
minimis respects as of the date of this Agreement and as of the Closing Date, as
if made as of such date (except for those representations and warranties which
address matters only as of an earlier date which shall have been true and
correct as of such earlier date), (ii) the representation and warranty of the
Company contained in Section 3.6(b) (Absence of Certain Changes) shall be true
and correct in all respects as of the date of this Agreement and as of the
Closing Date, as if made as of such date and (iii) each of the other
representations and warranties of the Company contained in this Agreement shall
be true and correct (without giving effect to any exception or qualification
contained therein relating to materiality or a Company Material Adverse Effect)
as of the date of this Agreement and as of the Closing Date, as if made as of
such date (except for those representations and warranties which address matters
only as of an earlier date which shall have been true and correct as of such
earlier date), except in the case of this clause (iii), where the failure of
such other representations and warranties to be true and correct, individually
or in the aggregate, has not had, or would not be reasonably expected to have, a
Company Material Adverse Effect. Parent shall have received a certificate of the
chief executive officer or the chief financial officer of the Company to such
effect.
(b) Performance of Obligations of the Company. The Company shall
have performed or complied in all material respects with all material agreements
and covenants required to be performed or complied with by it under this
Agreement at or prior to the Closing Date and Parent shall have received a
certificate of the chief executive officer or the chief financial officer of the
Company to such effect.
(c) Financing. The lenders who are parties to the Commitment Letter
(or, in the event that alternative financing has been arranged, the lenders or
other financing sources who have committed to such alternative financing) shall
not have declined on the date that would otherwise have been the Closing Date to
make the Financing (or such alternative financing) available to Parent primarily
by reason of the failure of either or both of the following conditions: (i)
Parent shall on the Closing Date, and taking into account the Merger, have (i)
an unsecured long-term obligations rating of at least "A2" (with stable (or
better) outlook) and a commercial paper credit rating of at least "P-1" (which
rating shall be affirmed) from Moody's Investors Services, Inc. and (ii) a
long-term issuer credit rating of at least "A" (with stable (or better) outlook)
and a short-term issuer credit rating of at least "A-1" (which rating shall be
affirmed) from Standard & Poor's Ratings Group (for the avoidance of doubt, it
being understood, that an unsecured long-term obligations rating of higher than
"A2" and a long-term issuer credit rating of higher than "A" shall satisfy the
foregoing condition, as applicable, irrespective of whether or not such
rating(s) are subject to "negative watch" or "negative outlook"); or (ii) since
December 31, 2007, there shall not have been any event, occurrence, development
or state of circumstances or facts or condition that has had or would reasonably
be expected to have, individually or in the aggregate, a Parent Material Adverse
Effect, except (A) as disclosed in the Parent SEC Documents filed since January
1, 2008 but prior to the date hereof (but excluding any risk factor disclosures
contained under the heading "Risk Factors," any disclosure of risks included in
any "forward-looking statements" disclaimer or any other statements that are
similarly non-specific or predictive or forward-looking in nature, in each case,
other than any specific factual information contained therein) or (B) as set
forth in the Parent Disclosure Letter.
Section 7.3 Additional Conditions to Obligations of the Company. The
obligations of the Company to effect the Merger are subject to the satisfaction
of, or waiver by the Company, on or prior to the Closing Date of the following
additional conditions:
(a) Representations and Warranties. (i) Each of the representations
and warranties of Parent and Merger Sub contained in Section 4.1(Organization,
Good Standing and Qualification), Section 4.2(a) and (b) (Capital Structure) and
Section 4.3 (Corporate Authority) shall be true and correct other than in de
minimis respects as of the date of this Agreement and as of the Closing Date, as
if made as of such date (except for those representations and warranties which
address matters only as of an earlier date which shall have been true and
correct in all material respects as of such earlier date), (ii) each of the
representations and warranties of Parent and Merger Sub contained in Section
4.12(b) (Absence of Changes) shall be true and correct in all respects as of the
date of this Agreement and as of the Closing Date, as if made as of such date,
and (iii) each of the other representations and warranties of Parent and Merger
Sub contained in this Agreement shall be true and correct (without giving effect
to any exception or qualification contained therein relating to materiality or a
Parent Material Adverse Effect) as of the date of this Agreement and as of the
Closing Date, as if made as of such date (except for those representations and
warranties which address matters only as of an earlier date which shall have
been true and correct as of such earlier date), except in the case of this
clause (iii), where the failure of such other representations and warranties to
be true and correct, individually or in the aggregate, has not had, or would not
be reasonably expected to have, a Parent Material Adverse Effect. The Company
shall have received a certificate of the chief executive officer or the chief
financial officer of Parent and Merger Sub to such effect.
(b) Performance of Obligations of Parent and Merger Sub. Each of
Parent and Merger Sub shall have performed or complied with in all material
respects all material agreements and covenants required to be performed or
complied with by it under this Agreement at or prior to the Closing Date, and
the Company shall have received a certificate of the chief executive officer or
the chief financial officer of Parent and Merger Sub to such effect.
ARTICLE VIII
TERMINATION AND AMENDMENT
Section 8.1 General. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Effective Time notwithstanding approval thereof by the stockholders of the
Company:
(a) by mutual written consent of Parent and the Company, by action
of each of their respective Board of Directors;
(b) by either Parent or the Company, upon written notice to the
other party, if the Merger shall not have been consummated on or prior to the
close of banking business New York City time on October 31, 2009 (the "Initial
Termination Date"); provided, however, that the right to terminate this
Agreement under this Section 8.1(b) shall not be available to any party whose
breach of any provision of this Agreement has been the cause of, or resulted in,
the failure of the Merger to occur on or before the Termination Date; provided,
further, that (i) if on the Initial Termination Date the condition to Closing
set forth in Section 7.1(c) shall not have been fulfilled but all other
conditions to Closing shall or shall be capable of being fulfilled then the
Initial Termination Date shall be automatically extended to the close of banking
business New York City time on December 31, 2009 and (ii) if the Company has
delivered an Election Notice on or prior to, or could be capable of delivering
an Election Notice within five (5) Business Days of, the Initial Termination
Date, then the Initial Termination Date shall be automatically extended by
twenty (20) Business Days provided that in no event shall the Initial
Termination Date be extended beyond December 31, 2009. As used in this
Agreement, the term "Termination Date" shall mean the Initial Termination Date,
unless the Initial Termination Date has been extended pursuant to the foregoing
proviso, in which case, the term "Termination Date" shall mean the last date to
which the Initial Termination Date has been so extended;
(c) by the Company, upon written notice to Parent, if Parent or
Merger Sub (i) shall have breached any of the covenants or agreements contained
in this Agreement to be complied with by Parent or Merger Sub such that the
closing condition set forth in Section 7.3(b) would not be satisfied or (ii)
there exists a breach of any representation or warranty of Parent or Merger Sub
contained in this Agreement such that the closing condition set forth in Section
7.3(a) would not be satisfied, and, in the case of both (i) and (ii), such
breach is incapable of being cured by the Termination Date;
(d) by Parent, upon written notice to the Company, if the Company
(i) shall have breached any of the covenants or agreements contained in this
Agreement to be complied with by the Company such that the closing condition set
forth in Section 7.2(b) would not be satisfied or (ii) there exists a breach of
any representation or warranty of the Company contained in this Agreement such
that the closing condition set forth in Section 7.2(a) would not be satisfied,
and, in the case of both (i) and (ii), such breach is incapable of being cured
by the Termination Date;
(e) by the Company or Parent, upon written notice to the other
party, if a Governmental Entity of competent jurisdiction in the United States
or the European Union shall have issued an order, judgment, decision, opinion,
decree or ruling or taken any other action (which the party seeking to terminate
shall have used its reasonable best efforts to resist, resolve, annul, quash, or
lift, as applicable, subject to the provisions of Section 6.3) permanently
enjoining or otherwise prohibiting the consummation of the transactions
contemplated by this Agreement, and such order, decree, ruling or action shall
have become final and non-appealable; provided, however, that the party seeking
to terminate this Agreement pursuant to this clause (e) has fulfilled its
obligations under Section 6.3;
(f) by Parent, upon written notice to the Company, if (i) a Change
in the Company Recommendation pursuant to Section 6.4(d)(ii) (or any action by
any committee of the Company's Board of Directors which, if taken by the
Company's full Board of Directors, would be a Change in the Company
Recommendation pursuant to Section 6.4(d)(ii)) shall have occurred, (ii) the
Company or its Board of Directors (or any committee thereof) shall approve or
recommend, or enter into or allow the Company or any of its Subsidiaries to
enter into, a merger agreement, letter of intent, agreement in principle, share
purchase agreement, asset purchase agreement, share exchange agreement, option
agreement or other similar Contract relating to an Acquisition Proposal, (iii)
following the date any bona fide Acquisition Proposal or any material
modification thereto is first published, sent or given to the stockholders of
the Company, the Company fails to issue a press release that expressly reaffirms
the Company Recommendation within ten (10) Business Days following Parent's
written request to do so (which request may be made by Parent one time following
any such Acquisition Proposal or any material modifications thereto), (iv) if
any tender offer or exchange offer is commenced by any Third Party with respect
to the outstanding Company Common Stock prior to the time at which the Company
receives the Company Requisite Vote, and the Company's Board of Directors shall
not have recommended that the Company's stockholders reject such tender offer or
exchange offer and not tender their Company Common Stock into such tender offer
or exchange offer within ten (10) Business Days after commencement of such
tender offer or exchange offer, unless the Company has issued a press release
that expressly reaffirms the Company Recommendation within such ten (10)
Business Day period, (v) the Company shall have failed to include the Company
Recommendation in the Proxy Statement or (vi) the Company or its Board of
Directors (or any committee thereof) shall publicly announce its intentions to
do any of actions specified in this Section 8.1(f);
(g) by the Company or Parent, upon written notice to the other
party, if the Company Stockholder Meeting has concluded (including any
adjournment or postponement thereof) and the Company Requisite Vote shall not
have been obtained;
(h) by the Company, upon written notice to Parent, at any time prior
to the time at which the Company receives the Company Requisite Vote, if the
Board of Directors of the Company determines to enter into an Alternative
Acquisition Agreement with respect to a Superior Proposal, but only if the
Company (i) is not in material breach of Section 6.4, and (ii) shall
concurrently with such termination enter into the Alternative Acquisition
Agreement and the Company shall pay the Tier I Termination Fee or Tier II
Termination Fee, as applicable, substantially concurrently with such
termination;
(i) by the Company, upon written notice to Parent, if the Closing
has not occurred within five (5) Business Days following the satisfaction or
waiver of all of the conditions set forth in Sections 7.1 and 7.2 (other than
(i) the condition set forth in Section 7.2(c) and (ii) those other conditions
that, by their nature, cannot be satisfied until the Closing Date, but, in the
case of clause (ii), which conditions would be satisfied if the Closing Date
were the date of such termination) due to the failure of the condition set forth
in Section 7.2(c) to be satisfied or waived; provided, however, that the Company
may not exercise such right of termination until the date that is the earlier of
(A) the date that is the tenth (10) Business Day following the date on which
Parent receives the Election Notice from the Company and (B) December 31, 2009;
and
(j) by Parent, upon written notice to the Company, if a Change in
the Company Recommendation pursuant to Section 6.4(d)(i) (or any action by any
committee of the Company's Board of Directors which, if taken by the Company's
full Board of Directors, would be a Change in the Company Recommendation
pursuant to Section 6.4(d)(i)) shall have occurred.
Section 8.2 Obligations in Event of Termination.
(a) In the event of any termination of this Agreement as provided in
Section 8.1, this Agreement shall forthwith become wholly void and of no further
force and effect and there shall be no liability or obligation on the part of
Parent, Merger Sub or the Company or their respective Subsidiaries, officers or
directors, except (i) with respect to Section 6.2(b), Section 6.6, the last
sentence of Section 6.13(b), this Section 8.2 and Article IX, which shall remain
in full force and effect and (ii) with respect to any liabilities or damages
incurred or suffered by a party, to the extent such liabilities or damages were
the result of fraud or the willful and material breach by another party of any
of its representations, warranties, covenants or other agreements set forth in
this Agreement. For purposes of this Agreement, "willful and material breach"
shall mean a material breach that is a consequence of an act undertaken by the
breaching party with the knowledge (actual or constructive) that the taking of
such act would, or would be reasonably expected to, cause a breach of this
Agreement.
(b) In the event that this Agreement is terminated (i) by Parent
pursuant to Section 8.1(f) or (ii) by the Company pursuant to Section 8.1(h),
and:
(A) during the thirty (30) day period following the date of this
Agreement the Company received a bona fide written Acquisition Proposal
from a Third Party and during such period the Board of Directors of the
Company determined in good faith, after consultation with the Company's
financial advisors and outside legal counsel, that such Acquisition
Proposal constituted or was reasonably likely to lead to a Superior
Proposal, and
(B) (i) in the case of termination pursuant to Section 8.1(f) the
Acquisition Proposal referred to in (A) above resulted in the Company
taking or failing to take the action giving rise to Parent's right to
terminate this Agreement pursuant to Section 8.1(f) or (ii) in the case of
termination pursuant to Section 8.1(h), the Alternative Acquisition
Proposal entered into by the Company in connection with such termination
is with such Third Party,
then, the Company shall pay to Parent a termination fee of $1,500,000,000 (the
"Tier I Termination Fee") (x) promptly (and in any event within two (2) Business
Days) following such termination, in the case of termination pursuant to Section
8.1(f) and (y) prior to or concurrently with such termination, in the case of
termination pursuant to Section 8.1(h).
(c) In the event that this Agreement is terminated by Parent
pursuant to Section 8.1(f) or Section 8.1(j) or by the Company pursuant to
Section 8.1(h) and the Tier I Termination Fee is not payable pursuant to Section
8.2(b), then the Company shall pay to Parent a termination fee of $2,000,000,000
(the "Tier II Termination Fee") plus, in the case of a termination pursuant to
Section 8.1(j), Parent's Expenses actually incurred by Parent on or prior to the
termination of this Agreement; provided that in no event shall the Company be
required to reimburse Parent's Expenses in excess of $700,000,000. The Tier II
Termination Fee payable pursuant to this Section 8.2(c) shall be paid (x)
promptly (and in any event within two (2) Business Days) following termination
of this Agreement, in the case of termination pursuant to Section 8.1(f) or
Section 8.1(j) and (y) prior to or concurrently with such termination, in the
case of termination pursuant to Section 8.1(h). Any Expenses required to be
reimbursed pursuant to this Section 8.2(c) shall be paid promptly (and in any
event with two (2) Business Days) following the Company's receipt of an invoice
therefor.
(d) In the event that this Agreement is terminated pursuant to
Section 8.1(d) or Section 8.1(g) and (i) at any time after the date of this
Agreement and prior to the breach giving rise to Parent's right to terminate (in
the case of a termination pursuant to Section 8.1(d)) or prior to the taking of
the vote to adopt this Agreement at the Company Stockholder Meeting (in the case
of a termination pursuant to Section 8.1(g)) an Acquisition Proposal shall have
been made known to the senior management or the Board of Directors of the
Company (in the case of a termination pursuant to Section 8.1(d)) or shall have
been publicly announced or publicly made known to the stockholders of the
Company (in the case of a termination pursuant to Section 8.1(g)) and shall not
have been withdrawn prior to the breach giving rise to Parent's right to
terminate (in the case of a termination pursuant to Section 8.1(d)) or prior to
the taking of the vote to adopt this Agreement at the Company Stockholder
Meeting (in the case of a termination pursuant to Section 8.1(g)) and (ii)
within twelve (12) months of such termination, the Company enters into a
definitive agreement with any Third Party with respect to any Acquisition
Proposal or any Acquisition Proposal with respect to the Company is consummated,
then the Company shall pay to Parent, not later than two (2) Business Days after
the earlier of the date any such agreement is entered into or any such
Acquisition Proposal is consummated, the Tier II Termination Fee; provided,
however, that for purposes of the definition of Acquisition Proposal in this
Section 8.2(d), references to "15%" shall be replaced by "50%."
(e) In the event that this Agreement is terminated by (i) the
Company or Parent pursuant to Section 8.1(b) and all of the conditions to
Closing set forth in Article VII (other than (A) the condition set forth in
Section 7.2(c) and (B) those other conditions that, by their nature, cannot be
satisfied until the Closing Date, but, in the case of clause (B), which
conditions would be satisfied if the Closing Date were the date of such
termination) have been satisfied or waived on or prior to the date of such
termination or (ii) the Company pursuant to Section 8.1(i) (either of the
terminations described in (clauses (i) and (ii) above, a "Specified Financing
Condition Termination"), then Parent shall pay to the Company a termination fee
equal to $4,500,000,000 (the "Reverse Termination Fee") (which fee shall be
payable within two (2) Business Days after written notice of such termination).
The Company agrees that in the event that the Reverse Termination Fee is paid to
the Company pursuant to this Section 8.2(e), the payment of such Reverse
Termination Fee shall be the sole and exclusive remedy of the Company, its
Subsidiaries, stockholders, affiliates, officers, directors, employees or
Representatives against Parent, Merger Sub or any of their Related Persons,
Representatives or Affiliates for, and in no event will the Company seek to
recover any other money damages or seek any other remedy based on a claim in law
or equity with respect to, (1) any loss suffered as a result of the failure of
the Merger to be consummated, (2) the termination of this Agreement, (3) any
liabilities or obligations arising under this Agreement, or (4) any claims or
actions arising out of or relating to any breach, termination or failure of or
under this Agreement, in each case, with respect to a Specified Financing
Condition Termination and any event related thereto, and upon payment to the
Company of the Reverse Termination Fee, neither Parent, Merger Sub nor any
Related Person, Representative or Affiliate of Parent shall have any further
liability or obligation to the Company relating to or arising out of this
Agreement or the transactions contemplated hereby (except that Parent shall also
be obligated with respect to the provisions of Section 6.2(b) and Section
8.2(g)).
(f) All payments under this Section 8.2 shall be made by wire
transfer of immediately available funds to an account designated in writing by
Parent or Company, as applicable. In no event shall (i) the Company be required
to pay both the Tier I Termination Fee and the Tier II Termination Fee or to pay
either the Tier I Termination Fee or the Tier II Termination Fee on more than
one occasion or (ii) Parent be required to pay the Reverse Termination Fee on
more than one occasion.
(g) If Parent or the Company shall fail to pay the Reverse
Termination Fee, the Tier I Termination Fee or the Tier II Termination Fee, as
applicable, the Company shall reimburse Parent, or Parent shall reimburse the
Company, as applicable, for all reasonable costs and expenses actually incurred
or accrued by such other party (including reasonable Expenses of counsel) in
connection with the collection under and enforcement of this Section 8.2 from
the date such payment was required to be made until the date of payment at the
prime lending rate prevailing during such period as published in The Wall Street
Journal.
Section 8.3 Amendment. This Agreement may be amended by the parties,
by action taken or authorized by their respective Boards of Directors, at any
time before or after approval of the matters presented in connection with the
Merger by the stockholders of the Company, but, after any such approval by the
stockholders of the Company, no amendment shall be made which, by Law or in
accordance with the rules of any relevant stock exchange, requires further
approval by such stockholders without obtaining such further approval. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties.
Section 8.4 Extension; Waiver. At any time prior to the Effective
Time, the parties, by action taken or authorized by their respective Boards of
Directors, may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties, (ii)
waive any breach of or inaccuracy in the representations and warranties of the
other contained herein or in any document delivered pursuant hereto and (iii)
waive compliance by the other of any of the agreements or conditions contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver pursuant to the foregoing sentence shall be valid only if set forth in a
written instrument signed on behalf of such party. In addition and
notwithstanding the foregoing, if the Closing cannot occur as scheduled pursuant
to Article I due to an act of God, war, terrorism, flood, banking moratorium or
suspension of payments in respect of federal or state banks in the United States
(whether or not mandatory), the Closing will automatically be postponed until
the earliest date that is reasonably practicable following the conclusion of
such event, and if such date is after the Termination Date, then the Termination
Date shall automatically be extended to such date, and in such case, all
references to the term "Termination Date" in this Agreement shall mean such
extended date. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of those
rights.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Non-Survival of Representations, Warranties and
Agreements. None of the representations, warranties, covenants and other
agreements in this Agreement or in any instrument delivered pursuant to this
Agreement, including any rights arising out of any breach of such
representations, warranties, covenants and other agreements, shall survive the
Effective Time, except for those covenants and agreements contained herein and
therein (including Section 6.7) that by their terms are to be performed in whole
or in part after the Effective Time and this Article IX.
Section 9.2 Notices. Any notices or other communications required or
permitted under, or otherwise given in connection with, this Agreement shall be
in writing and shall be deemed to have been duly given (i) when delivered or
sent if delivered in person or sent by facsimile transmission (provided
confirmation of facsimile transmission is obtained), (ii) on the fifth (5th)
Business Day after dispatch by registered or certified mail, (iii) on the next
Business Day if transmitted by national overnight courier or (iv) on the date
delivered if sent by email (provided confirmation of email receipt is obtained),
in each case as follows:
(a) if to Parent or Merger Sub, to:
Pfizer Inc.
235 East 42nd Street
New York, New York 10017
Attention: Amy Schulman, Senior Vice President and
General Counsel
Facsimile: (212) 573-0768
with a copy to:
Cadwalader, Wickersham & Taft LLP
One World Financial Center
New York, New York 10281
Attention: Dennis J. Block, Esq.
William P. Mills, Esq.
Facsimile: (212) 504-6666
(b) if to Merger Sub, to:
Wagner Acquisition Corp.
235 East 42nd Street
New York, New York 10017
Attention: David Reid, Senior Vice President and
Managing Director
Facsimile: (212) 573-0768
(c) if to the Company, to:
Wyeth
Five Giralda Farms
Madison, New Jersey 07940
Attention: General Counsel
Facsimile: (973) 660-7155
with a copy to counsel to the Company:
Simpson Thacher & Bartlett LLP
425 Lexington Ave.
New York, New York 10017
Attention: Casey Cogut
Eric Swedenburg
Facsimile: (212) 455-2502; and
with a copy to counsel to the independent directors of the Company:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Adam O. Emmerich
David K. Lam
Facsimile: (212) 403-2000
Section 9.3 Headings. The table of contents and headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
Section 9.4 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
Section 9.5 Entire Agreement; No Third-Party Beneficiaries.
(a) This Agreement (including the Exhibits and Schedules hereto) and
the Confidentiality Agreement constitute the entire agreement, and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof and thereof.
(b) This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other Person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement, other than
Section 6.7 (which is intended to be for the benefit of the Persons covered
thereby and may be enforced by such Persons).
Section 9.6 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware (without giving
effect to choice of law principles thereof).
Section 9.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Notwithstanding the foregoing, upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest extent
possible.
Section 9.8 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties, in whole or in part (whether by operation of Law or otherwise), without
the prior written consent of the other party, and any attempt to make any such
assignment without such consent shall be null and void, except that Merger Sub
may assign, in its sole discretion, any or all of its rights, interests and
obligations under this Agreement to any direct wholly-owned Subsidiary of Parent
without the consent of the Company, but no such assignment shall relieve Merger
Sub of any of its obligations under this Agreement. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
Section 9.9 Submission to Jurisdiction; Waivers. Each of the parties
irrevocably agrees that any legal action or proceeding with respect to this
Agreement or for recognition and enforcement of any judgment in respect hereof
brought by any other party hereto or its successors or assigns may be brought
and determined exclusively in the Court of Chancery of the State of Delaware or,
if under applicable Law exclusive jurisdiction over such matter is vested in the
federal courts, any court of the United States located in the State of Delaware,
and each of the parties to this Agreement hereby irrevocably submits with regard
to any such action or proceeding for itself and in respect to its property,
generally and unconditionally, to the exclusive jurisdiction of the aforesaid
courts and agrees that it will not bring any legal action or proceeding with
respect to this Agreement or for recognition and enforcement of any judgment in
respect hereof in any court other than the aforesaid courts. Each of the parties
to this Agreement hereby irrevocably waives, and agrees not to assert, by way of
motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement or for recognition and enforcement of any
judgment in respect hereof, (i) any claim that it is not personally subject to
the jurisdiction of the above-named courts for any reason other than the failure
to lawfully serve process, (ii) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and (iii) to the fullest extent permitted by applicable Law, that (A) the suit,
action or proceeding in any such court is brought in an inconvenient forum, (B)
the venue of such suit, action or proceeding is improper and (C) this Agreement,
or the subject matter hereof, may not be enforced in or by such courts. Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.2; provided that nothing in this Agreement
shall affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
Section 9.10 Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to seek an injunction or injunctions to prevent breaches of this
Agreement or to enforce specifically the performance of the terms and provisions
hereof.
Section 9.11 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND
AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
Section 9.12 Interpretation. When a reference is made in this
Agreement to an Article, a Section, Exhibit or Schedule, such reference shall be
to an Article of, a Section of, or an Exhibit or Schedule to, this Agreement
unless otherwise indicated. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation". All references to "dollars" or "$" are to United
States dollars. The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. References to "this
Agreement" shall include the Company Disclosure Letter and the Parent Disclosure
Letter. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such term. This Agreement is the
product of negotiation by the parties having the assistance of counsel and other
advisors. It is the intention of the parties that this Agreement not be
construed more strictly with regard to one party than with regard to the others.
Section 9.13 Definitions. As used in this Agreement:
(a) "Affiliate" means, with respect to any Person, another Person
that, directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with such Person.
(b) "Board of Directors" means the Board of Directors of any
specified Person and any committees thereof.
(c) "Business Day" means any day other than a Saturday or Sunday or
any day on which the Federal Reserve Bank of New York is closed or any day on
which banks in the city of New York are required to close.
(d) "Cash Value of the Stock Consideration" means the product of (x)
the Exchange Ratio, and (y) the Parent Share Cash Value.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Company Material Adverse Effect" means an effect, event,
development, change, state of facts, condition, circumstance or occurrence that
is or would be reasonably expected to be materially adverse to the financial
condition, assets, liabilities, business or results of operations of the Company
and its Subsidiaries, taken as a whole; provided, however, that a Company
Material Adverse Effect shall not be deemed to include effects, events,
developments, changes, states of facts, conditions, circumstances or occurrences
arising out of, relating to or resulting from: (A) changes generally affecting
the economy, financial or securities markets or political or regulatory
conditions, to the extent such changes do not adversely affect the Company and
its Subsidiaries in a disproportionate manner relative to other participants in
the pharmaceutical or biotechnology industry; (B) changes in the pharmaceutical
or biotechnology industry, to the extent such changes do not adversely affect
the Company and its Subsidiaries in a disproportionate manner relative to other
participants in such industry; (C) any change in Law or the interpretation
thereof or GAAP or the interpretation thereof, to the extent such changes do not
adversely affect the Company and its Subsidiaries in a disproportionate manner
relative to other participants in such industry; (D) acts of war, armed
hostility or terrorism to the extent such changes do not adversely affect the
Company and its Subsidiaries in a disproportionate manner relative to other
participants in the pharmaceuticals or biotechnology industry; (E) any change
attributable to the negotiation, execution or announcement of the Merger,
including any litigation resulting therefrom, and any adverse change in
customer, distributor, employee, supplier, financing source, licensor, licensee,
sub-licensee, stockholder, co-promotion or joint venture partner or similar
relationships, including as a result of the identity of Parent; (F) any failure
by the Company to meet any internal or published industry analyst projections or
forecasts or estimates of revenues or earnings for any period (it being
understood and agreed that the facts and circumstances giving rise to such
failure that are not otherwise excluded from the definition of a Company
Material Adverse Effect may be taken into account in determining whether there
has been a Company Material Adverse Effect); (G) any change in the price or
trading volume of the Company Common Stock on the NYSE (it being understood and
agreed that the facts and circumstances giving rise to such change that are not
otherwise excluded from the definition of a Company Material Adverse Effect may
be taken into account in determining whether there has been a Company Material
Adverse Effect); and (H) compliance with the terms of, or the taking of any
action required by, this Agreement.
(g) "Company Product" means all biological and drug products, all
animal health products and all consumer products being tested in clinical
trials, manufactured, sold or distributed by the Company or any of its
Subsidiaries.
(h) "Company Stock Plans" means, collectively, the Company's 2005
Amended and Restated Stock Incentive Plan, 2002 Stock Incentive Plan, 1999 Stock
Incentive Plan, 1996 Stock Incentive Plan, 2008 Non-Employee Director Stock
Incentive Plan, 2006 Non-Employee Director Stock Incentive Plan, Stock Option
Plan for Non-Employee Directors, 1994 Restricted Stock Plan for Non-Employee
Directors, Wyeth Ireland Share Participation Scheme and the MIP.
(i) "Confidentiality Agreement" means the letter agreement, dated
January 16, 2009 between Parent and the Company.
(j) "Contracts" means, with respect to any Person, any of the
agreements, contracts, leases (whether for real or personal property), notes,
bonds, mortgages, indentures, deeds of trust, loans, evidences of indebtedness,
letters of credit, settlement agreements, franchise agreements, undertakings,
employment agreements, license agreements, instruments to which such Person or
its Subsidiaries is a party, whether oral or written.
(k) "Election Notice" means a notice from the Company to Parent
notifying Parent of the Company's intention to exercise its right to terminate
the Merger Agreement pursuant to Section 8.1(i) or its rights under Section
9.10; provided that an Election Notice may not be delivered by the Company until
the earlier of (A) (i) in the case of a notice of intention with respect to
Section 9.10, the tenth (10th) Business Day following the satisfaction or waiver
of the conditions set forth in Article VII (excluding conditions that, by their
nature, cannot be satisfied until the Closing Date) or (ii) in the case of a
notice of intention with respect to Section 8.1(i), the tenth (10th) Business
Day following the satisfaction or waiver of the conditions set forth in Sections
7.1 and 7.2 (other than (x) the condition set forth in Section 7.2(c) and (y)
those other conditions that, but their nature, cannot be satisfied until the
Closing Date) and (B) December 31, 2009.
(l) "Environmental Laws" means any and all Laws which (i) regulate
or relate to: the protection or clean up of the environment; the treatment,
storage, transportation, handling, packaging, labeling, disposal or release of,
or exposure to, any pollutant, contaminant or hazardous substances, wastes or
similar materials; the protection of human health and safety to the extent
affected by harmful or deleterious substances in the workplace or the
environment; or the preservation or protection of waterways, groundwater,
drinking water, air, wildlife, plants or other natural resources; or (ii) impose
liability or responsibility with respect to any of the foregoing, including
property and business transfer laws such as the New Jersey Industrial Site
Recovery Act, N.J.S.A. 13:1K-6 et seq.
(m) "Environmental Permit" means any permit, approval,
identification number, license and other authorization required under any
applicable Environmental Law.
(n) "Equity Interest" means any share, capital stock, partnership,
limited liability company, membership, member or similar interest in any Person,
and any option, warrant, right or security (including debt securities)
convertible, exchangeable or exercisable thereto or therefor.
(o) "Expenses" includes all documented out-of-pocket expenses
(including all commitment fees, ticking fees, extension fees, underwriting fees,
structuring fees, interest, expenses and other costs or fees incurred in
relation to the financing of the transactions contemplated hereby, and fees,
expenses and disbursements of counsel, accountants, investment bankers,
financing sources, experts and consultants to a party hereto and its affiliates
and Representatives) incurred in connection with or related to due diligence,
the authorization, preparation, negotiation, execution and performance of this
Agreement and the transactions contemplated hereby, including obtaining the
financing for the Merger, and all other matters related thereto.
(p) "GAAP" means United States generally accepted accounting
principles.
(q) "Hazardous Material" means petroleum and its products and
derivatives including gasoline and diesel fuel, radioactive materials, asbestos
and asbestos-containing materials, pesticides, radon, urea formaldehyde, lead
and lead-containing materials, polychlorinated biphenyls and any other
chemicals, materials, substances or wastes in any amount or concentration which
are regulated pursuant to or the basis for liability pursuant to any
Environmental Law or defined as or included in the definition of "hazardous
substance," "hazardous material," "hazardous waste," "toxic substance,"
"pollutant," "regulated substance," "solid waste," "contaminant" or words of
similar import under any applicable Environmental Law.
(r) "Intervening Event" means, with respect to the Company, a
material event or circumstance that was not known to the Board of Directors of
the Company on the date of this Agreement (or if known, the consequences of
which are not known to or reasonably foreseeable by such Board of Directors as
of the date hereof), which event or circumstance, or any material consequences
thereof, becomes known to the Board of Directors of the Company prior to the
time at which the Company receives the Company Requisite Vote; provided,
however, that in no event shall the receipt, existence or terms of an
Acquisition Proposal or Inquiry or any matter relating thereto or consequence
thereof constitute an Intervening Event.
(s) "Known" or "Knowledge" means (i) with respect to the Company,
the actual knowledge of any of the persons listed in Section 9.13(s) of the
Company Disclosure Letter and (ii) with respect to Parent or Merger Sub, the
actual knowledge of any of the persons listed in Section 9.13(s) of the Parent
Disclosure Letter.
(t) "Law" means any federal, state, local, national or supranational
or foreign law (including common law), statute, ordinance, rule, regulation,
Order, code ruling, decree, arbitration award, agency requirement, license or
permit of any Governmental Entity.
(u) "Lien" means any lien, mortgage, pledge, encumbrance, condition,
restriction, lease, license, security interest or deed of trust.
(v) "Order" means any order, judgment or injunction.
(w) "other party" means, with respect to the Company, Parent or
Merger Sub and means, with respect to Parent or Merger Sub, the Company, unless
the context otherwise requires.
(x) "Parent Material Adverse Effect" means an effect, event,
development, change, state of facts, condition, circumstance or occurrence that
is or would be reasonably expected to be materially adverse to the financial
condition, assets, liabilities, business or results of operations of Parent and
its Subsidiaries, taken as a whole; provided, however, that a Parent Material
Adverse Effect shall not be deemed to include effects, events, developments,
changes, states of facts, conditions, circumstances or occurrences arising out
of, relating to or resulting from: (A) changes generally affecting the economy,
financial or securities markets or political or regulatory conditions, to the
extent such changes do not adversely affect Parent and its Subsidiaries in a
disproportionate manner relative to other participants in the pharmaceutical or
biotechnology industry; (B) changes in the pharmaceutical or biotechnology
industry, to the extent such changes do not adversely affect Parent and its
Subsidiaries in a disproportionate manner relative to other participants in such
industry; (C) any change in Law or the interpretation thereof or GAAP or the
interpretation thereof, to the extent such changes do not adversely affect
Parent and its Subsidiaries in a disproportionate manner relative to other
participants in such industry; (D) acts of war, armed hostility or terrorism to
the extent such changes do not adversely affect Parent and its Subsidiaries in a
disproportionate manner relative to other participants in the pharmaceutical or
biotechnology industry; (E) any change attributable to the negotiation,
execution or announcement of the Merger, including any litigation resulting
therefrom, and any adverse change in customer, distributor, employee, supplier,
financing source, licensor, licensee, sub-licensee, stockholder, co-promotion or
joint venture partner or similar relationships; (F) any failure by Parent to
meet any internal or published industry analyst projections or forecasts or
estimates of revenues or earnings for any period (it being understood and agreed
that the facts and circumstances giving rise to such failure that are not
otherwise excluded from the definition of Parent Material Adverse Effect may be
taken into account in determining whether there has been a Parent Material
Adverse Effect); (G) any change in the price or trading volume of the Parent
Common Stock on the NYSE (it being understood and agreed that the facts and
circumstances giving rise to such change that are not otherwise excluded from
the definition of Parent Material Adverse Effect may be taken into account in
determining whether there has been a Parent Material Adverse Effect); and (H)
compliance with the terms of, or the taking of any action required by, this
Agreement.
(y) "Parent Product" means all biological and drug products, all
animal health products and all consumer products being tested in clinical
trials, manufactured, sold or distributed by Parent or any of its Subsidiaries.
(z) "Parent Share Cash Value" means the volume weighted average of
the per share prices of Parent Common Stock on the NYSE Transaction Reporting
System for the five (5) consecutive trading days ending two (2) days prior to
the Effective Time.
(aa) "Per Share Amount" means the sum of (i) the Cash Value of the
Stock Consideration and (ii) the Cash Consideration.
(bb) "Permitted Liens" means (i) Liens for Taxes not yet due and
payable or that are being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP have been established in the
latest Company Financial Statements, (ii) Liens in favor of vendors, carriers,
warehousemen, repairmen, mechanics, workmen, materialmen, construction or
similar Liens or other encumbrances arising by operation of Law, (iii) Liens
affecting the interest of the grantor of any easements benefiting owned real
property and Liens of record attaching to real property, fixtures or leasehold
improvements, which would not materially impair the use of the real property in
the operation of the business thereon and (iv) Liens, exceptions, defects or
irregularities in title, easements, imperfections of title, claims, charges,
security interests, rights-of-way, covenants, restrictions, and other similar
matters that would not, individually or in the aggregate, reasonably be expected
to materially impair the continued use and operation of the assets to which they
relate in the business of such entity and its Subsidiaries as presently
conducted.
(cc) "Person" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization, other
entity or group (as defined in the Exchange Act).
(dd) "Qualifying Amendment" means an amendment or supplement to the
Proxy Statement (including by incorporation by reference) to the extent it
contains (i) a Change in the Company Recommendation, (ii) a statement of the
reasons of the Board of Directors of the Company for making such Change in the
Company Recommendation and (iii) additional information reasonably related to
the foregoing.
(ee) "Regulatory Law" means the Sherman Act, as amended, Council
Regulation No. 4064/89 of the European Community, as amended (the "EC Merger
Regulation"), the Clayton Act, as amended, the HSR Act, the Federal Trade
Commission Act, as amended, the China Anti-Monopoly Law and all other Federal,
state and foreign, if any, statutes, rules, regulations, orders, decrees,
administrative and judicial doctrines and other Laws that are designed or
intended to prohibit, restrict or regulate (i) foreign investment or (ii)
actions having the purpose or effect of monopolization or restraint of trade or
lessening of competition.
(ff) "Related Person" means any former, current or future, direct or
indirect, manager, director, officer, employee, agent or Representative of
Parent or Merger Sub, any former, current or future, direct or indirect, holder
of any equity interests or securities of Parent or Merger Sub, any former,
current or future affiliate or assignee of Parent or Merger Sub or any former,
current or future manager, director, officer, employee, agent, representative,
affiliate or assignee of any of the foregoing.
(gg) "Representative" means, with respect to any party hereto, such
party or any of its Subsidiaries' respective directors, officers, employees,
investment bankers, financing sources, financial advisors, attorneys,
accountants or other advisors, agents and/or representatives.
(hh) "Significant Subsidiary" when used with respect to any party,
means such party's significant subsidiaries as defined under Rule 1-02(w) of
Regulation S-X promulgated pursuant to the Exchange Act.
(ii) "Subsidiary" means any corporation, partnership, joint venture
or other legal entity of which Parent, the Company or such other Person, as the
case may be (either alone or through or together with any other Subsidiary),
owns, directly or indirectly, a majority of the stock or other Equity Interests
the holders of which are generally entitled to vote for the election of the
board of directors or other governing body of such corporation, partnership,
joint venture or other legal entity, or any Person that would otherwise be
deemed a "subsidiary" under Rule 12b-2 promulgated under the Exchange Act.
(jj) "Taxes" includes all forms of taxation, whenever created or
imposed, and whether of the United States or elsewhere, and whether imposed by a
local, municipal, governmental, state, foreign, Federal or other Governmental
Entity, or in connection with any agreement with respect to Taxes, including all
interest, penalties and additions imposed with respect to such amounts.
(kk) "Tax Return" means all Federal, state, local, provincial and
foreign Tax returns, declarations, statements, reports, schedules, forms and
information returns and, in each case, any amendments thereto.
(ll) "Third Party" shall mean any Person, including as defined in
Section 13(d) of the Exchange Act, other than Parent or any of its Affiliates,
and the Representatives of such Person, in each case, acting in such capacity.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused
this Agreement to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
PFIZER INC.
By: /s/ Jeffrey B. Kindler
-----------------------------------------
Name: Jeffrey B. Kindler
Title: Chairman and Chief Executive
Officer
WAGNER ACQUISITION CORP.
By: /s/ David R. Reid
-----------------------------------------
Name: David R. Reid
Title: Senior Vice President and Managing
Director
WYETH
By: /s/ Bernard Poussot
-----------------------------------------
Name: Bernard Poussot
Title: Chairman, President and Chief
Executive Officer
Index of Definitions
Page
1994 Plan....................................................................6
409A Deferred RSUs...........................................................5
409A RSU Consideration.......................................................5
409A RSUs....................................................................5
Acquisition Proposal........................................................54
Actions.....................................................................19
Affiliate...................................................................76
Agreement....................................................................1
Alternative Acquisition Agreement...........................................54
Bankruptcy and Equity Exception.............................................16
Benefits Continuation Period................................................55
Board of Directors..........................................................76
Book-Entry Shares............................................................4
Business Day................................................................76
Capitalization Date.........................................................13
Cash Consideration...........................................................3
Cash Value of the Stock Consideration.......................................76
Certificate of Merger........................................................2
Certificates.................................................................4
Change......................................................................48
Change in the Company Recommendation........................................48
CIC Severance Agreements....................................................57
Closing......................................................................1
Closing Date.................................................................1
Code........................................................................76
Commitment Letter...........................................................35
Common Book-Entry Shares.....................................................4
Common Certificates..........................................................4
Common Stock Merger Consideration............................................3
Company......................................................................1
Company Benefit Plan........................................................21
Company Common Stock.........................................................2
Company Convertible Preferred Stock..........................................3
Company Deferred Equity Unit Plans...........................................6
Company Disclosure Letter...................................................13
Company Employees...........................................................43
Company Financial Advisors..................................................28
Company Financial Statements................................................17
Company Material Adverse Effect.............................................76
Company Material Contracts..................................................21
Company Permits.............................................................27
Company Product.............................................................77
Company Recommendation......................................................48
Company Regulatory Agency...................................................27
Company Requisite Vote......................................................15
Company SEC Documents.......................................................17
Company Stock Options........................................................4
Company Stock Plan..........................................................77
Company Stockholder Meeting.................................................48
Company Voting Debt.........................................................14
Confidentiality Agreement...................................................77
Contracts...................................................................77
Convertible Debenture Indenture.............................................64
Convertible Debentures.......................................................3
Covered Employees...........................................................55
D&O Insurance...............................................................58
Deferred Equity Unit Amount..................................................7
Deferred Payment Terms.......................................................5
Deferred RSU Shares..........................................................5
DGCL.........................................................................1
Director Deferral Amount.....................................................6
Director Deferral Plan.......................................................6
Director DSU Plans...........................................................6
DOJ.........................................................................50
DSU..........................................................................6
DSU Consideration............................................................6
EC Merger Regulation........................................................80
Effective Time...............................................................2
Election Notice.............................................................77
Environmental Laws..........................................................78
Environmental Permit........................................................78
Equity Interest.............................................................78
ERISA.......................................................................21
ERISA Affiliate.............................................................22
Excess Shares...............................................................57
Exchange Act................................................................16
Exchange Agent...............................................................8
Exchange Fund................................................................8
Exchange Ratio...............................................................3
Exchange Ratio Reduction Number..............................................3
Expenses....................................................................78
FDA.........................................................................27
FDCA........................................................................27
Financing...................................................................35
Foreign Benefit Plans...................................................21, 22
Form S-4....................................................................47
FTC.........................................................................50
GAAP........................................................................78
Governmental Entity.........................................................16
Grandfathered Amounts........................................................6
Grantor Trust................................................................5
Hazardous Material..........................................................78
HSR Act.....................................................................16
Indemnified Parties.........................................................57
Initial Termination Date....................................................67
Inquiry.....................................................................53
Insurance Policies..........................................................27
Intellectual Property.......................................................25
Intervening Event...........................................................78
IRS.........................................................................22
Knowledge...................................................................79
Known.......................................................................79
Law.........................................................................79
Leased Real Property........................................................20
Lien........................................................................79
Market Rate..................................................................5
Maximum Share Number.........................................................3
Merger.......................................................................1
Merger Consideration.........................................................3
Merger Sub...................................................................1
MIP..........................................................................7
New Benefit Plans...........................................................56
NYSE........................................................................16
Option Consideration.........................................................4
Options......................................................................4
Order.......................................................................79
other party.................................................................79
Owned Real Property.........................................................20
Parent.......................................................................1
Parent Benefit Plans........................................................30
Parent Common Stock..........................................................3
Parent Convertible Preferred Stock...........................................3
Parent Disclosure Letter....................................................29
Parent Financial Advisors...................................................34
Parent Financial Statements.................................................33
Parent Material Adverse Effect..............................................79
Parent Permits..............................................................38
Parent Product..............................................................80
Parent Regulatory Agency....................................................38
Parent SEC Documents........................................................33
Parent Share Cash Value.....................................................80
parties......................................................................1
PBGC........................................................................22
Per Share Amount............................................................80
Permitted Liens.............................................................80
Person......................................................................80
PHSA........................................................................27
Preferred Book-Entry Shares..................................................4
Preferred Certificates.......................................................4
Preferred Stock Merger Consideration.........................................3
Proxy Statement.............................................................47
Qualifying Amendment........................................................80
Reacquired Shares...........................................................57
Regulatory Law..............................................................80
Related Person..............................................................81
Representative..............................................................81
Restricted Stock.............................................................6
Restricted Stock Consideration...............................................6
Reverse Termination Fee.....................................................71
RSU..........................................................................4
RSU Consideration............................................................4
Sarbanes-Oxley Act..........................................................17
Securities Act..............................................................15
Significant Subsidiary......................................................81
Specified Financing Condition Termination...................................71
Stock Consideration..........................................................3
Stock Trust..................................................................5
Subsidiary..................................................................81
Superior Proposal...........................................................55
Surviving Corporation........................................................1
Takeover Statute............................................................16
Tax Return..................................................................81
Taxes.......................................................................81
Termination Date............................................................67
Third Party.................................................................81
Tier I Termination Fee......................................................70
Tier II Termination Fee.....................................................70
Vested Deferred RSU..........................................................5
Vested Deferred RSU Consideration............................................5
willful and material breach.................................................69
Wyeth 2005 (409A) DCP........................................................5