STOCK OPTION AGREEMENT (this "Agreement"), dated as of September 21,
1999, between MedImmune, Inc., a Delaware corporation ("Grantee"), and U.S.
Bioscience, Inc., a Delaware corporation ("Issuer").
RECITALS
A. Grantee, Marlin Merger Sub Inc., a wholly owned subsidiary of
Grantee ("Sub"), and Issuer have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"; defined terms
used but not defined herein have the meanings set forth in the Merger
Agreement), providing for, among other things, the merger of Sub with and
into Issuer; and
B. As a condition and inducement to Grantee's willingness to enter
into the Merger Agreement, Grantee has requested that Issuer agree, and
Issuer has agreed, to grant Grantee the Option (as defined below).
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein,
Issuer and Grantee agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth
herein, Issuer hereby grants to Grantee an irrevocable option (the
"Option") to purchase that number of shares which equals 19.9% of the
issued and outstanding Issuer Common Shares (the "Option Shares")
immediately prior to the exercise of this Option at a price per share (the
"Option Price") equal to $16.50, payable in cash. The number of Option
Shares and the Option Price are subject to adjustment as set forth herein.
2. Exercise and Termination of Option. (a) If Grantee is not in
material breach of the Merger Agreement, subject to the terms and
conditions hereof, Grantee may exercise the Option in whole at any time
after the occurrence of a Trigger Event and prior to the close of business
on the Termination Date (the "Exercisability Period"). "Trigger Event"
shall mean an event which obligates Issuer to pay the Termination Fee
pursuant to Section 5.8(b) of the Merger Agreement. "Termination Date"
shall mean the earliest of (i) the Effective Time of the Merger, (ii) 180
days after the date full payment contemplated by Section 5.8(b) of the
Merger Agreement is made by Issuer to Grantee thereunder, (iii) the
termination of the Merger Agreement so long as no Trigger Event has
occurred or could still occur pursuant to Section 5.8(b) the Merger
Agreement or (iv) 13 months after the termination of the Merger Agreement
under circumstances which could result in Grantee's becoming entitled to
receive the Termination Fee from Issuer pursuant to Section 5.8(b), unless
during such 13 month period a Trigger Event shall occur. Notwithstanding
the occurrence of the Termination Date, Grantee shall be entitled to
purchase the Option Shares pursuant to the exercise of the Stock Option, on
the terms and subject to the conditions hereof, to the extent Grantee
exercised the Stock Option prior to the occurrence of the Termination Date.
(b) If Grantee is entitled to and wishes to exercise the Option,
it shall deliver to Issuer a written notice (the date of receipt of which
is referred to as the "Notice Date") specifying (i) it intends to such
exercise and (ii) a place and date not earlier than three business days nor
later than 15 business days from the Notice Date for the closing of such
purchase; provided that if the closing of the purchase and sale pursuant to
the Option (the "Closing") cannot be consummated by reason of any
applicable judgment, decree, order, law or regulation, the period of time
that otherwise would run pursuant to this sentence shall run instead from
the date on which such restriction on consummation has expired or been
terminated; and, provided further that, without limiting the foregoing, if
prior notification to or approval of any regulatory authority is required
in connection with such purchase, Grantee and, if applicable, Issuer shall
promptly file the required notice or application for approval and shall
expeditiously process the same (and Issuer shall cooperate with Grantee in
the filing of any such notice or application and the obtaining of any such
approval), and the period of time that otherwise would run pursuant to this
sentence shall run instead from the date on which, as the case may be, (i)
any required notification period has expired or been terminated or (ii)
such approval has been obtained, and in either event, any requisite waiting
period has passed. Issuer shall take any action reasonably requested by
Grantee to cause the Closing to occur as promptly as practicable. Any
exercise of the Option shall be deemed to occur on the Notice Date relating
thereto. Any extensions of the periods specified in this Section 2(b)
shall extend the Exercisability Period on a day for day basis.
(c) Notwithstanding anything herein to the contrary, it shall be
a condition to the exercise of this Option and the purchase of the Option
Shares that (i) no preliminary or permanent injunction or other order,
decree or ruling against the sale or delivery of the Option Shares issued
by any federal or state court of competent jurisdiction in the United
States is in effect at such time, (ii) any applicable waiting period under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act")
shall have expired or been terminated at or prior to such time, and (iii)
any approval required to be obtained prior to the delivery of the Option
Shares under the laws of any jurisdiction shall have been obtained and
shall be in full force and effect.
3. Payment and Delivery of Certificates.
(a) At the Option Closing, Grantee will pay to Issuer in
immediately available funds by wire transfer to a bank account designated
in writing by Issuer an amount equal to the Purchase Price multiplied by
the number of Option Shares to be purchased at such Option Closing;
provided that failure or refusal of Issuer to designate such a bank account
shall not preclude Grantee from exercising the Option.
(b) At the Option Closing, simultaneously with the delivery of
immediately available funds as provided in Section 3(a), Issuer will
deliver, or cause to be delivered, to Grantee a certificate or certificates
representing the Option Shares to be purchased at such Option Closing,
which Option Shares will be fully paid and non-assessable and free and
clear of all Liens (except for any such Lien due to the issuance of the
Option Shares not being registered under the Securities Act and Liens
arising from acts of Grantee). If at the time of issuance of Option Shares
pursuant to an exercise of the Option hereunder, Issuer shall have issued
any securities similar to rights under a shareholder rights plan, then each
Option Share issued pursuant to such exercise will also represent such a
corresponding right with terms substantially the same as and at least as
favorable to Grantee as are provided under any such shareholder rights plan
then in effect.
(c) Certificates for the Option Shares delivered at the Option
Closing will have typed or printed thereon a restrictive legend which will
read substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY BE REOFFERED OR
SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE."
It is understood and agreed that such legend will be removed by
delivery of substitute certificate(s) without such reference if such Option
Shares have been registered pursuant to the Securities Act, or Grantee has
delivered to Issuer a copy of a letter from the staff of the SEC, or an
opinion of counsel in customary form to the effect that such legend is not
required for purposes of the Securities Act.
(d) Subject to applicable laws, when the Grantee provides the
Exercise Notice and the tender of the applicable purchase price in
immediately available funds (or offer of such tender if the proviso to the
Section 3(a) is applicable), the Grantee shall be deemed to be the holder
of record of the Issuer Common Shares issuable upon such exercise,
notwithstanding that the stock transfer books of Issuer shall then be
closed or that certificates representing such Issuer Common Shares shall
not then be actually delivered to the Grantee.
4. Representations and Warranties of Issuer. Issuer hereby
represents and warrants to Grantee as follows:
(a) Issuer is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The execution,
delivery and performance by Issuer of this Agreement and the consummation
of the transactions contemplated hereby (i) are within Issuer's corporate
powers, (ii) have been duly authorized by all necessary corporate action,
(iii) require no action by or in respect of, or filing with, any
Governmental Entity, except for compliance with any applicable requirements
of the HSR Act and any applicable filings and approvals under similar
foreign antitrust laws and regulations and such filings with and approvals
of the American Stock Exchange necessary to permit the Options Shares to be
traded on the American Stock Exchange, (iv) do not contravene, or conflict
with the certificate of incorporation or by-laws of Issuer, (v) do not
contravene or conflict with or constitute a violation of any provision of
any law, regulation or judgment, injunction, order or decree binding upon
Issuer or any of its subsidiaries and (vi) will not require any consent,
approval or notice under and will not conflict with, or result in the
breach or termination of any provision of or constitute a default (with or
without the giving of notice or the lapse of time or both) under, or allow
the acceleration of the performance of, any material obligation of Issuer
or any of its Subsidiaries under, or result in the creation of a Lien upon,
any of the properties, assets or business of Issuer or any of its
Subsidiaries under any indenture, mortgage, deed of trust, lease, licensing
agreement, contract, instrument or other agreement to which Issuer or any
of its Subsidiaries is a party or by which Issuer or any of its
Subsidiaries or any of their respective assets or properties is subject or
bound other than, in the case of each of (iii), (iv), (v) or (vi), any such
items that would not, individually or in the aggregate, be reasonably
likely to have a Material Adverse Effect on Issuer or prevent or materially
impair the ability of Issuer to consummate the transactions contemplated by
this Agreement. This Agreement has been duly executed and delivered by
Issuer and constitutes a valid and binding agreement of Issuer, enforceable
in accordance with its terms (except insofar as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratiorium
or other similar laws affecting creditors' rights generally or by
principles governing availability of equitable remedies).
(b) Except for any filings required to be made under the HSR Act
and any applicable filings and approvals under similar foreign antitrust
laws and regulations and such filings with and approvals of the American
Stock Exchange necessary to permit the Options Shares to be traded on the
American Stock Exchange, Issuer has taken all necessary corporate and other
action to authorize and reserve and to permit it to issue, and at all times
from the date hereof until such time as the obligation to deliver Option
Shares upon the exercise of the Option terminates, will have reserved for
issuance, upon any exercise of the Option, the number of Option Shares
subject to the Option. All of the Issuer Common Shares to be issued
pursuant to the Option are duly authorized and, upon issuance and delivery
thereof pursuant to this Agreement, will be duly authorized, validly
issued, fully paid and nonassessable, and free and clear of all Liens
(except for any such Lien due to the issuance of the Option Shares not
being registered under the Securities Act and Liens arising from acts of
Grantee), and not subject to any preemptive rights.
5. Representations and Warranties of Grantee. Grantee hereby
represents and warrants to Issuer that:
(a) Grantee is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
execution, delivery and performance by Grantee of this Agreement and the
consummation of the transactions contemplated hereby (i) are within
Grantee's corporate powers, (ii) have been duly authorized by all
necessary corporate action.
(b) The Option Shares or other securities acquired by Grantee
upon exercise of the Option will not be and the option is not being
acquired by Grantee with the intention of making a public distribution
thereof and the Option Shares will not be transferred or otherwise disposed
of except in a transaction registered, or exempt from registration, under
the Securities Act.
6. Adjustment upon Changes in Capitalization, Etc.
(a) In the event of any change in Issuer Common Shares by reason
of stock dividends, stock splits, split-ups, spin-offs, recapitalizations,
recombinations, extraordinary dividends or the like, the type and number of
Option Shares, and the Option Price, as the case may be, shall be adjusted
appropriately to reflect such event and proper provision shall be made in
any agreement governing any such transaction to provide for such adjustment
and the full satisfaction of the Issuer's obligations hereunder, provided
that in no event shall the number of shares of Issuer Common Stock subject
to the Option exceed 19.9% of the number of shares of Issuer Common Stock
issued and outstanding on the date of exercise.
(b) Without limiting the parties' relative rights and
obligations under the Merger Agreement, if the Issuer enters into an
agreement with respect to an Takeover Proposal or other transaction
involving the exchange or conversion of Issuer Common Shares for shares or
other securities of the Issuer or another person, then the agreement
governing such transaction shall make proper provision so that the Option
shall, upon the consummation of any such transaction and upon the terms and
conditions set forth herein, be converted into, or exchanged for, an option
with identical terms appropriately adjusted to acquire the number and class
of shares or other securities or property that Grantee would have received
in respect of Issuer Common Shares if the Option had been exercised
immediately prior to the consummation of such Takeover Proposal, or the
record date therefor, as applicable.
(c) If, at any time during the Exercisability Period, Grantee
sends to Issuer a notice (a "Cash-Out Notice") indicating Grantee's
election to exercise its right pursuant to this Section 6(c), then Issuer
shall pay to Grantee, on the date specified in the Cash-Out Notice, which
shall be a date not earlier than three business days nor later than 15
business days from the Cash-Out Notice, in exchange for the cancellation of
the Option (if the Option has not been exercised) or the repurchase of any
Issuer Common Shares issued to Grantee pursuant hereto which Grantee then
beneficially owns and has requested that Issuer repurchase (if the Option
has been exercised), at a price per share equal to the higher of (x) if
applicable, the highest price per share of Common Stock paid or proposed to
be paid by any Person pursuant to any Takeover Proposal (non-cash
consideration to be valued as set forth in Section 7(e) hereof) or (y) the
average of the closing prices of the shares of Common Stock on the
principal securities exchange or quotation system on which the Common Stock
is then listed or traded as reported in The Wall Street Journal (or another
authoritative source) for the five consecutive trading days immediately
preceding the date of the Cash-Out Notice, less, if the Option has not been
exercised, the Option Price in respect of each Option Share being
cancelled. Notwithstanding the termination of the Option, Grantee will be
entitled to exercise its rights under this Section 6(c) if it has exercised
such rights in accordance with the terms hereof prior to the termination of
the Option. The payment contemplated by this Section 6(c) shall be made in
immediately available funds to an account specified by Grantee. Amounts
paid under this Section shall be suject to Section 7(a) hereof.
7. Profit Limitations.
(a) Notwithstanding any other provision of this Agreement, in no
event shall the Total Option Profit (as hereinafter defined) exceed in the
aggregate $17 million minus the sum of any Termination Fee plus Expenses
actually received by Grantee pursuant to the terms of the Merger Agreement
(such amount, the "Profit Limit") and, if any payment to be made to Grantee
otherwise would cause such aggregate amount to be exceeded, the Grantee, at
its sole election, shall either (i) reduce the number of Issuer Common
Shares subject to this Option, (ii) pay cash to Issuer, (iii) waive rights
under this Agreement or (iv) any combination thereof, so that the Total
Option Profit shall not exceed the Profit Limit after taking into account
the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, this
Option may not be exercised for a number of Issuer Common Shares as would,
as of the date of exercise, result in a Notional Total Option Profit (as
hereinafter defined) which would exceed in the aggregate the Profit Limit
and, if it otherwise would exceed such amount, the Grantee, at its sole
election, shall on or prior to the date of exercise either (i) reduce the
number of Issuer Common Shares subject to such exercise, (ii) pay cash to
Issuer, (iii) waive rights under this Agreement or (iv) any combination
thereof, so that the Notional Total Option Profit shall not exceed the
Profit Limit after taking into account the foregoing actions, provided that
this paragraph (b) shall not be construed as to restrict any exercise of
the Option in whole that is not prohibited hereby on any subsequent date.
(c) As used herein, the term "Total Option Profit" shall mean
the aggregate amount (before taxes) of the following: (i) any amount
received by Grantee pursuant to the Cash-Out Right and (ii)(x) the net
consideration, if any, received by Grantee pursuant to the sale of Option
Shares (or any other securities into which such Option Shares are converted
or exchanged) to any unaffiliated party, valuing any non-cash consideration
at its fair market value (as defined below), less (y) the Exercise Price
and any cash paid by Grantee to Issuer pursuant to Section 7(a)(iii) or
Section 7(b)(iii), as the case may be.
(d) As used herein, the term "Notional Total Option Profit" with
respect to the number of Issuer Common Shares as to which Grantee may
propose to exercise the Option shall be the Total Option Profit with
respect to such number of Issuer Common Shares as to which Grantee proposes
to exercise and all other Option Shares held by Grantee and its affiliates
as of such date, assuming that all such shares were sold for cash at the
closing market price for Issuer Common Shares as of the close of business
on the preceding trading day (less customary brokerage commissions or
underwriting discounts).
(e) As used herein, the "fair market value" of any non-cash
consideration consisting of:
(i) securities listed on a national securities exchange or
traded on NASDAQ shall be equal to the average closing price per share of
such security as reported on such exchange or NASDAQ for the five trading
days before the date of determination; and
(ii) consideration which is other than cash or securities of
the form specified in clause (i) above shall be determined by a nationally
recognized independent investment banking firm mutually agreed upon by the
parties five business days prior to the event requiring selection of such
banking firm, provided that if the parties are unable to agree within three
business days as to the investment banking firm, then the parties shall
each select one firm, and those firms shall select a third nationally
recognized independent investment banking firm 48 hours, which third firm
shall make such determination as promptly as reasonably practicable. The
third firm's determination shall be final and binding on each of the
parties.
8. Registration Rights. Issuer will, if requested by Grantee at any
time and from time to time within three years of the exercise of the
Option, as promptly as practicable (but in no event later than 90 days
after receipt of such request) prepare and file up to three registration
statements under the Securities Act if such registration is necessary in
order to permit the sale or other disposition of any or all shares of
securities that have been acquired by or are issuable to Grantee upon
exercise of the Option in accordance with the intended method of sale or
other disposition stated by Grantee, including a "shelf" registration
statement under Rule 415 under the Securities Act or any successor
provision, and Issuer will use its best efforts to qualify such shares or
other securities under any applicable state securities laws. A Registration
Statement shall not be deemed filed if it is withdrawn by Issuer, subject
to a stop or similar order or not kept effective in accordance with the
following sentence. Issuer will use reasonable efforts to cause each such
registration statement to become effective, to obtain all consents or
waivers of other parties which are required therefor, and to keep such
registration statement effective for such period not in excess of 180
calendar days from the day such registration statement first becomes
effective as may be reasonably necessary to effect such sale or other
disposition. The obligations of Issuer hereunder to file a registration
statement and to maintain its effectiveness may be suspended for up to 60
calendar days in the aggregate if the Board of Directors of Issuer shall
have determined that the filing of such registration statement or the
maintenance of its effectiveness would require premature disclosure of
material nonpublic information that would materially and adversely affect
Issuer or otherwise interfere with or adversely affect any pending or
proposed offering of securities of Issuer or any other material transaction
involving Issuer. Any registration statement prepared and filed under this
Section 8, and any sale covered thereby, will be at Issuer's expense except
for underwriting discounts or commissions, brokers' fees and the fees and
disbursements of Grantee's counsel related thereto. Grantee will provide
all information reasonably requested by Issuer for inclusion in any
registration statement to be filed hereunder. If, during the time periods
referred to in the first sentence of this Section 8, Issuer effects a
registration under the Securities Act of Issuer Common Shares for its own
account or for any other stockholders of Issuer (other than on Form S-4 or
Form S-8, or any successor form), it will allow Grantee the right to
participate in such registration, and such participation will not affect
the obligation of Issuer to effect demand registration statements for
Grantee under this Section 8; provided that, if the managing underwriters
of such offering advise Issuer in writing that in their opinion the number
of Issuer Common Shares requested to be included in such registration
exceeds the number which can be sold in such offering, Issuer will include
only the shares requested to be included therein by Grantee that may be
included therein without adversely affecting the success of the offering.
In connection with any registration pursuant to this Section 8, Issuer and
Grantee will provide each other and any underwriter of the offering with
customary representations, warranties, covenants, indemnification, and
contribution in connection with such registration.
9. Listing. If Issuer Common Shares or any other securities to be
acquired upon exercise of the Option are then listed on The Nasdaq National
Market (or any other national securities exchange or national securities
quotation system), Issuer, upon the request of Grantee, will promptly file
an application to list the Issuer Common Shares or other securities to be
acquired upon exercise of the Option on The Nasdaq National Market (or any
such other national securities exchange or national securities quotation
system) and will use reasonable efforts to obtain approval of such listing
as promptly as practicable.
10. Loss or Mutilation. Upon receipt by Issuer of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer will execute and deliver a new Agreement of
like tenor and date.
11. Miscellaneous.
(a) Expenses. Except as otherwise provided in this Agreement or
in the Merger Agreement, each of the parties hereto will bear and pay all
costs and expenses incurred by it or on its behalf in connection with the
transactions contemplated hereunder, including fees and expenses of its own
financial consultants, investment bankers, accountants, and counsel.
(b) Amendment. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) Extension; Waiver. Any agreement on the part of a party to
waive any provision of this Agreement, or to extend the time for
performance, will be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party to this Agreement
to assert any of its rights under this Agreement or otherwise will not
constitute a waiver of such rights.
(d) Entire Agreement; Third-Party Beneficiaries. This Agreement,
the Merger Agreement (including the documents and instruments attached
thereto as exhibits or schedules or delivered in connection therewith) and
the Confidentiality Agreement (i) constitute the entire agreement, and
supersede all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter of this Agreement,
and (ii) except as provided in Section 8.06 of the Merger Agreement, are
not intended to confer upon any Person other than the parties any rights or
remedies.
(e) Governing Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles of
conflict of laws thereof.
(f) Notices. All notices, requests, claims, demands, and other
communications under this Agreement shall be sent in the manner and to the
addresses set forth in the Merger Agreement.
(g) Assignment. Neither this Agreement, the Option nor any of
the rights, interests, or obligations under this Agreement may be assigned
or delegated, in whole or in part, by operation of law or otherwise, by
Issuer or Grantee without the prior written consent of the other, except
that Grantee may assign, in its sole discretion, any of or all its rights,
interests and obligations under this Agreement to any direct or indirect
wholly owned Subsidiary of Grantee, but no such assignment shall relieve
Grantee of any of its obligations hereunder. Any assignment or delegation
in violation of the preceding sentence will be void. Subject to the first
and second sentences of this Section 11(g), this Agreement will be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns.
(h) Further Assurances. In the event of any exercise of the
Option by Grantee, Issuer and Grantee will execute and deliver all other
documents and instruments and take all other actions that may be reasonably
necessary in order to consummate the transactions provided for by such
exercise. Issuer will not take any actions which would frustrate the
exercise of the Option or the other transactions contemplated hereby.
(i) Section 16(b). Any time period hereunder shall be extended
to the extent necessary for any Grantee to avoid liability under Section
16(b) of the Exchange Act.
(j) Enforcement. The parties agree that irreparable damage would
occur and that the parties would not have any adequate remedy at law in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any Federal
court located in the State of Delaware or in any state court located in the
State of Delaware, the foregoing being in addition to any other remedy to
which they are entitled at law or in equity. In addition, each of the
parties hereto (i) consents to submit itself to the personal jurisdiction
of any Federal court located in the State of Delaware or any state court
located in the State of Delaware in the event any dispute arises out of
this Agreement or any of the transactions contemplated by this Agreement,
(ii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, and
(iii) agrees that it will not bring any action relating to this Agreement
or any of the transactions contemplated by this Agreement in any court
other than a Federal court sitting in the State of Delaware or a state
court located in the State of Delaware.
(k) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled
to the extent possible.
IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement to
be signed by their respective officers thereunto duly authorized as of the
day and year first written above.
MEDIMMUNE, INC.
/s/ Wayne T. Hockmeyer
--------------------------------------------
Name: Wayne T. Hockmeyer
Title: Chairman and Chief Executive Officer
U.S. BIOSCIENCES, INC.
/s/ C. Boyd Clarke
--------------------------------------------
Name: C. Boyd Clarke
Title: President and Chief Executive Officer