Exhibit 2.1
CONFORMED COPY
AGREEMENT AND PLAN OF MERGER
DATED AS OF FEBRUARY 6, 2000
AMONG
PFIZER INC.,
SEMINOLE ACQUISITION SUB CORP.
AND
▇▇▇▇▇▇-▇▇▇▇▇▇▇ COMPANY
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER; CERTAIN RELATED MATTERS
1.1 The Merger ......................................................... 2
1.2 Closing ............................................................ 2
1.3 Effective Time ..................................................... 2
1.4 Effects of the Merger .............................................. 2
1.5 Certificate of Incorporation ....................................... 2
1.6 Bylaws ............................................................. 3
1.7 Officers and Directors of Surviving Corporation and Pfizer ......... 3
1.8 Effect on Capital Stock ............................................ 3
1.9 ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Options and Other Equity-Based Awards ......... 4
1.10 Certain Adjustments ................................................ 6
1.11 Associated Rights .................................................. 6
ARTICLE II
EXCHANGE OF CERTIFICATES
2.1 Exchange Fund ...................................................... 6
2.2 Exchange Procedures ................................................ 7
2.3 Distributions with Respect to Unexchanged Shares ................... 7
2.4 No Further Ownership Rights in ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock ......... 8
2.5 No Fractional Shares of Pfizer Common Stock ........................ 8
2.6 Termination of Exchange Fund ....................................... 8
2.7 No Liability ....................................................... 9
2.8 Investment of the Exchange Fund .................................... 9
2.9 Lost Certificates .................................................. 9
2.10 Withholding Rights ................................................. 9
2.11 Further Assurances ................................................. 9
2.12 Stock Transfer Books ............................................... 9
2.13 Affiliates ........................................................ 10
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Pfizer .......................... 10
3.2 Representations and Warranties of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ .................. 19
3.3 Representations and Warranties of Pfizer and Merger Sub ........... 27
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
4.1 Covenants of Pfizer ............................................... 28
4.2 Covenants of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ ....................................... 32
4.3 Governmental Filings .............................................. 35
4.4 Control of Other Party's Business ................................. 36
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Preparation of Proxy Statement; Stockholders Meetings ............. 36
5.2 Pfizer Board of Directors; Executive Officers;
Headquarters; ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Name ................................. 39
5.3 Access to Information/Employees ................................... 39
5.4 Reasonable Best Efforts ........................................... 41
5.5 Acquisition Proposals ............................................. 42
5.6 Employee Benefits Matters ......................................... 44
5.7 Fees and Expenses ................................................. 45
5.8 Directors' and Officers' Indemnification and Insurance ............ 45
5.9 Public Announcements .............................................. 46
5.10 Accountant's Letters .............................................. 46
5.11 Listing of Shares of Pfizer Common Stock .......................... 47
5.12 Dividends ......................................................... 47
5.13 Affiliates ........................................................ 47
5.14 Section 16 Matters ................................................ 48
5.15 Lipitorregistered trademark Arrangements .......................... 48
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions to Each Party's Obligation to Effect the Merger ........ 50
6.2 Additional Conditions to Obligations of Pfizer and Merger Sub ..... 52
6.3 Additional Conditions to Obligations of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ ............ 53
ARTICLE VII
TERMINATION AND AMENDMENT
7.1 Termination ....................................................... 54
7.2 Effect of Termination ............................................. 56
7.3 Amendment ......................................................... 58
7.4 Extension; Waiver ................................................. 58
ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-Survival of Representations, Warranties and Agreements ........ 58
8.2 Notices ........................................................... 58
8.3 Interpretation .................................................... 59
8.4 Counterparts ...................................................... 60
8.5 Entire Agreement; No Third Party Beneficiaries .................... 60
8.6 Governing Law ..................................................... 60
8.7 Severability ...................................................... 60
8.8 Assignment ........................................................ 60
8.9 Submission to Jurisdiction; Waivers ............................... 61
8.10 Enforcement ....................................................... 61
8.11 Definitions ....................................................... 61
LIST OF EXHIBITS
Exhibit Title
1.5(b) Certificate of Incorporation Amendment
1.6(b) Bylaw Amendment
5.13 Form of Affiliate Letter
5.15(a) Third Amendment to the Collaboration Agreement
5.15(b) Third Amendment to the International Co-Promotion Agreement
5.15(c) Letter Agreement relating to the Norvas(registered trademark)/
Lipitor(registered trademark) combination product
6.2(c)(1) Form of Opinion of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
6.2(c)(2) Form of Pfizer Representations Letter
6.2(c)(3) Form of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Representations Letter
6.3(c)(1) Form of Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
AGREEMENT AND PLAN OF MERGER, dated as of February 6, 2000 (this
"Agreement"), among PFIZER INC., a Delaware corporation ("Pfizer"),
SEMINOLE ACQUISITION SUB CORP., a Delaware corporation and a direct wholly-
owned subsidiary of Pfizer ("Merger Sub"), and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ COMPANY, a
Delaware corporation ("▇▇▇▇▇▇-▇▇▇▇▇▇▇").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and Pfizer
deem it advisable and in the best interests of each corporation and its
respective stockholders that ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and Pfizer engage in a business
combination in order to advance the long-term strategic business interests
of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and Pfizer;
WHEREAS, the combination of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and Pfizer shall be
effected by the terms of this Agreement through a merger as outlined below
(the "Merger");
WHEREAS, in furtherance thereof, the respective Boards of
Directors of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and Pfizer have approved the Merger, upon the
terms and subject to the conditions set forth in this Agreement, pursuant
to which each share of common stock, par value $1.00 per share, of ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ ("▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock") issued and outstanding immediately
prior to the Effective Time (as defined in Section 1.3), other than shares
owned or held directly by Pfizer or directly or indirectly by ▇▇▇▇▇▇-
▇▇▇▇▇▇▇, will be converted into the right to receive shares of common
stock, par value $0.05 per share, of Pfizer ("Pfizer Common Stock") as set
forth in Section 1.8;
WHEREAS, for Federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended (the
"Code"), and the regulations promulgated thereunder; and
WHEREAS, for accounting purposes, it is intended that the Merger
shall be accounted for as a pooling-of-interests transaction under United
States generally accepted accounting principles ("GAAP").
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
hereto agree as follows:
ARTICLE I
THE MERGER; CERTAIN RELATED MATTERS
1.1 THE MERGER. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the Delaware General
Corporation Law (the "DGCL"), Merger Sub shall be merged with and into
▇▇▇▇▇▇-▇▇▇▇▇▇▇ at the Effective Time. Following the Merger, the separate
corporate existence of Merger Sub shall cease and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall
continue as the surviving corporation (the "Surviving Corporation").
1.2 CLOSING. Upon the terms and subject to the conditions set
forth in Article VI and the termination rights set forth in Article VII,
the closing of the Merger (the "Closing") will take place on the first
Business Day after the satisfaction or waiver (subject to applicable law)
of the conditions (excluding conditions that, by their nature, cannot be
satisfied until the Closing Date) set forth in Article VI, unless this
Agreement has been theretofore terminated pursuant to its terms or unless
another time or date is agreed to in writing by the parties hereto (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,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, unless
another place is agreed to in writing by the parties hereto.
1.3 EFFECTIVE TIME. As soon as practicable following the
satisfaction or waiver (subject to applicable law) of the conditions set
forth in Article VI, at the Closing the parties shall (i) file a
certificate of merger (the "Certificate of Merger") in such form as is
required by and executed in accordance with the relevant provisions of the
DGCL and (ii) make all other filings or recordings required under the DGCL.
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 Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall agree and as shall be specified in
the Certificate of Merger (the date and time the Merger becomes effective
being the "Effective Time").
1.4 EFFECTS OF THE MERGER. At and after the Effective Time, the
Merger will have the effects set forth in the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time all
the property, rights, privileges, powers and franchises of ▇▇▇▇▇▇-▇▇▇▇▇▇▇
and Merger Sub shall be vested in the Surviving Corporation, and all debts,
liabilities and duties of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and Merger Sub shall become the
debts, liabilities and duties of the Surviving Corporation.
1.5 CERTIFICATE OF INCORPORATION. (a) The certificate of
incorporation of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, as in effect immediately prior to the
Effective Time, shall be the certificate of incorporation of the Surviving
Corporation, until thereafter changed or amended as provided therein or by
applicable law.
(b) Pfizer will use its reasonable best efforts to amend the
certificate of incorporation of Pfizer effective as of the Effective Time,
as set forth in Exhibit 1.5(b) hereto, to increase the number of directors
on the Pfizer Board of Directors to not less than ten nor more than twenty-
four (the "Board Amendment"). If the Board Amendment is approved by
Pfizer's Stockholders at the Pfizer Stockholders Meeting, Pfizer shall use
its reasonable best efforts to appoint to the Pfizer Board of Directors
effective as of the Effective Time eight individuals currently serving on
the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Board of Directors, each such individual to be appointed
to the class of the Pfizer Board of Directors determined by Pfizer after
taking into account the advice and recommendation of the Transition
Planning Team referred to in the letter mentioned in Section 1.7 herein.
In the event that the Board Amendment is not approved by Pfizer's
stockholders at the Pfizer Stockholder Meeting, then Pfizer will take all
action to expand its Board of Directors to 18 members effective as of the
Effective Time and appoint three current ▇▇▇▇▇▇-▇▇▇▇▇▇▇ directors to the
Pfizer Board of Directors and use its reasonable best efforts to appoint
three additional current ▇▇▇▇▇▇-▇▇▇▇▇▇▇ directors to the Pfizer Board of
Directors as each new vacancy on the Pfizer Board of Directors occurs
following the Effective Time.
1.6 BYLAWS. (a) The bylaws of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, as in effect
immediately prior to the Effective Time, shall be the bylaws of the
Surviving Corporation until thereafter changed or amended as provided
therein or by applicable law.
(b) The bylaws of Pfizer shall be amended effective as of the
Effective Time to the effect provided in Exhibit 1.6(b). The amendment to
the bylaws of Pfizer is referred to in this Agreement as the "Pfizer Bylaw
Amendment."
1.7 OFFICERS AND DIRECTORS OF SURVIVING CORPORATION AND PFIZER.
Upon consummation of the Merger, the officers and directors of Pfizer shall
be as provided in the letter to the Chairman and the Chief Executive
Officer of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, dated February 6, 2000, from the Chairman and
Chief Executive Officer of Pfizer.
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 issued and outstanding
immediately prior to the Effective Time (other than shares of ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Common Stock owned by Pfizer or Merger Sub or held by ▇▇▇▇▇▇-
▇▇▇▇▇▇▇, all of which shall be canceled as provided in Section 1.8(c)),
together with the associated ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights, shall be converted into
2.75 validly issued, fully paid and non-assessable shares of Pfizer Common
Stock (the "Exchange Ratio") and the associated Pfizer Rights (together
with any cash in lieu of fractional shares of Pfizer Common Stock to be
paid pursuant to Section 2.5, the "Merger Consideration").
(b) As a result of the Merger and without any action on the part
of the holders thereof, at the Effective Time, all shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Common Stock (together with the associated ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights) shall
cease to be outstanding and shall be canceled and retired and shall cease
to exist, and each holder of a certificate which immediately prior to the
Effective Time represented any such shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock
(a "Certificate") shall thereafter cease to have any rights with respect to
such shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock, except as provided herein or by
law.
(c) Each share of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock issued and owned
by Pfizer or Merger Sub or held by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ at the Effective Time
shall, by virtue of the Merger, cease to be outstanding and shall be
canceled and retired and no stock of Pfizer or other consideration shall be
delivered in exchange therefor.
(d) 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 $1.00 per
share, of the Surviving Corporation.
1.9 ▇▇▇▇▇▇-▇▇▇▇▇▇▇ STOCK OPTIONS AND OTHER EQUITY-BASED AWARDS.
(a) Each ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option (as defined in Section 3.2(b)) that
was granted pursuant to the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option Plans (as defined
in Section 3.2(b)) prior to the Effective Time and which remains
outstanding immediately prior to the Effective Time shall cease to
represent a right to acquire shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock and
shall be converted, at the Effective Time, into an option to acquire, on
the same terms and conditions as were applicable under the ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Stock Option (but taking into account any changes thereto, including the
acceleration thereof, provided for in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option Plans
or in such option by reason of this Agreement or the transactions
contemplated hereby), that number of shares of Pfizer Common Stock
determined by multiplying the number of shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common
Stock subject to such ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option by the Exchange Ratio,
rounded, if necessary, to the nearest whole share of Pfizer Common Stock,
at a price per share (rounded to the nearest one-hundredth of a cent) equal
to the per share exercise price specified in such ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock
Option divided by the Exchange Ratio; provided, however, that in the case
of any ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option to which Section 421 of the Code applies
by reason of its qualification under Section 422 of the Code, the option
price, the number of shares subject to such option and the terms and
conditions of exercise of such option shall be determined in a manner
consistent with the requirements of Section 424(a) of the Code. On or prior
to the Effective Time, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ will take all actions necessary such
that all ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Options outstanding prior to the Effective
Time under the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option Plans are treated in accordance
with the immediately preceding sentences, including, but not limited to,
precluding the holder of each ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option from receiving
any cash payments in respect of such Option in connection with the Merger.
(b) Pursuant to the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option Plans,
restricted shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock granted pursuant thereto
which are outstanding immediately prior to the Effective Time shall become
fully vested and free of restrictions as of the Effective Time in
accordance with the terms thereof. Each such award shall be converted, as
of the Effective Time, into a number of shares of Pfizer Common Stock equal
to the product of (1) the number of shares subject to the award and (2) the
Exchange Ratio; and the number of shares of Pfizer Common Stock as so
determined shall be delivered to the holder of each such award as soon as
practicable following the Effective Time. On or prior to the Effective
Time, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ will take all actions necessary such that awards of
restricted shares are treated in accordance with the immediately preceding
sentences, including, but not limited to, precluding each holder from
receiving any cash payments in respect of such awards in connection with
the Merger.
(c) All ▇▇▇▇▇▇-▇▇▇▇▇▇▇ stock credits (including any fractions
thereof) in each stock account which is governed by the terms of ▇▇▇▇▇▇-
▇▇▇▇▇▇▇'▇ 1996 Stock Plan ("▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Credits") shall, as of the
Effective Time, be converted into a number of Pfizer stock credits equal to
the product of (1) the number of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Credits in such stock
account immediately prior to the Effective Time and (2) the Exchange Ratio,
and shall otherwise remain subject to the terms and conditions applicable
to such ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Credits. On or prior to the Effective Time,
▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall take all actions necessary to ensure that such ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Stock Credits are converted in accordance with the immediately
preceding sentence, including, but not limited to, precluding each holder
from receiving any cash payments in respect of such stock account in
connection with the Merger.
(d) Prior to the Effective Time and pursuant to the authority
reserved by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ under the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option Plans,
▇▇▇▇▇▇-▇▇▇▇▇▇▇ will take all actions necessary to preclude the holder of
any stock appreciation right or limited stock appreciation right granted
separately or in tandem with the awards described in Section 1.9(a) or (b)
hereof from receiving any cash payments in respect of such awards in
connection with the Merger.
(e) As soon as practicable after the Effective Time, Pfizer
shall deliver to the holders of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Options appropriate
notices setting forth such holders' rights pursuant to the ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Stock Option Plans (including that, in connection with the Merger and
pursuant to the terms of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option Plans, the ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Stock Options of such holders have become fully vested and
exercisable) and the agreements evidencing the grants of such ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Stock Options shall continue in effect on the same terms and
conditions (subject to the adjustments required by this Section 1.9 after
giving effect to the Merger and the terms of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock
Option Plans). To the extent permitted by law, Pfizer shall comply with
the terms of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option Plans and shall take such
reasonable steps as are necessary or required by, and subject to the
provisions of, such ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option Plans, to have the ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Stock Options which qualified as incentive stock options prior to
the Effective Time continue to qualify as incentive stock options of Pfizer
after the Effective Time.
(f) Pfizer shall take all corporate action necessary to reserve
for issuance a sufficient number of shares of Pfizer Common Stock for
delivery upon exercise of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Options or in connection
with restricted shares or in connection with the settlement of stock
accounts in accordance with this Section 1.9. Promptly after the Effective
Time, Pfizer shall file a registration statement on Form S-3 or Form S-8,
as the case may be (or any successor or other appropriate forms), with
respect to the shares of Pfizer Common Stock subject to such options or
restricted shares or stock accounts and shall use commercially reasonable
efforts to maintain the effectiveness of such registration statement or
registration statements (and maintain the current status of the prospectus
or prospectuses contained therein) for so long as such options, restricted
shares or stock accounts remain outstanding. With respect to those
individuals who subsequent to the Merger will be subject to the reporting
requirements under Section 16(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), where applicable, Pfizer shall administer the
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Option Plans in a manner consistent with the
exemptions provided by Rule 16b-3 promulgated under the Exchange Act.
1.10 CERTAIN ADJUSTMENTS. If, between the date of this Agreement
and the Effective Time, the outstanding Pfizer Common Stock or ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ 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 Exchange Ratio shall be appropriately adjusted to
provide to the holders of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock the same economic
effect as contemplated by this Agreement prior to such event.
1.11 ASSOCIATED RIGHTS. References in Article I and Article II
of this Agreement to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock shall include, unless the
context requires otherwise, the associated ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights and
references in Article I and Article II of this Agreement to Pfizer Common
Stock shall include, unless the context requires otherwise, the associated
Pfizer Rights.
ARTICLE II
EXCHANGE OF CERTIFICATES
2.1 EXCHANGE FUND. Prior to the Effective Time, Pfizer shall
appoint a commercial bank or trust company reasonably acceptable to ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ having net capital of not less than $300,000,000, or a subsidiary
thereof, to act as exchange agent hereunder for the purpose of exchanging
Certificates for the Merger Consideration (the "Exchange Agent"). At or
prior to the Effective Time, Pfizer shall deposit with the Exchange Agent,
in trust for the benefit of holders of shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common
Stock, certificates representing the Pfizer Common Stock issuable pursuant
to Section 1.8 in exchange for outstanding shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common
Stock. Pfizer agrees to make available to the Exchange Agent from time to
time as needed, cash sufficient to pay cash in lieu of fractional shares
pursuant to Section 2.5 and any dividends and other distributions pursuant
to Section 2.3. Any cash and certificates of Pfizer Common Stock deposited
with the Exchange Agent shall hereinafter be referred to as the "Exchange
Fund."
2.2 EXCHANGE PROCEDURES. Promptly after the Effective Time, the
Surviving Corporation shall cause the Exchange Agent to mail to each holder
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 Pfizer may reasonably specify (such letter to be reasonably
acceptable to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ prior to the Effective Time) and
(ii) instructions for effecting the surrender of such Certificates in
exchange for the applicable Merger Consideration. 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 (A) one or more shares of Pfizer 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 ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock then held by such
holder) and (B) a check in the amount equal to the cash that such holder
has the right to receive pursuant to the provisions of this Article II,
including cash in lieu of any fractional shares of Pfizer Common Stock
pursuant to Section 2.5 and dividends and other distributions pursuant to
Section 2.3. No interest will be paid or will accrue on any cash payable
pursuant to Section 2.3 or Section 2.5. In the event of a transfer of
ownership of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock which is not registered in the
transfer records of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, one or more shares of Pfizer Common
Stock evidencing, in the aggregate, the proper number of shares of Pfizer
Common Stock, a check in the proper amount of cash in lieu of any
fractional shares of Pfizer Common Stock pursuant to Section 2.5 and any
dividends or other distributions to which such holder is entitled pursuant
to Section 2.3, may be issued with respect to such ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common
Stock to such a transferee if the Certificate representing such shares of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock is presented to the Exchange Agent, accompanied
by all documents required to evidence and effect such transfer and to
evidence that any applicable stock transfer taxes have been paid.
2.3 DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No
dividends or other distributions declared or made with respect to shares of
Pfizer Common Stock with a record date after the Effective Time shall be
paid to the holder of any unsurrendered Certificate with respect to the
shares of Pfizer Common Stock that such holder would be entitled to receive
upon surrender of such Certificate and no cash payment in lieu of
fractional shares of Pfizer Common Stock shall be paid to any such holder
pursuant to Section 2.5 until such holder shall surrender such Certificate
in accordance with Section 2.2. Subject to the effect of applicable laws,
following surrender of any such Certificate, there shall be paid to such
holder of shares of Pfizer Common 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 Pfizer 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 Pfizer Common
Stock, and (b) at the appropriate payment date, the amount of dividends or
other distributions with a record date after the Effective Time but prior
to such surrender and a payment date subsequent to such surrender payable
with respect to such shares of Pfizer Common Stock.
2.4 NO FURTHER OWNERSHIP RIGHTS IN ▇▇▇▇▇▇-▇▇▇▇▇▇▇ COMMON STOCK.
All shares of Pfizer Common Stock issued and cash paid upon conversion of
shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock in accordance with the terms of
Article I and this Article II (including any cash paid pursuant to
Section 2.3 or 2.5) shall be deemed to have been issued or paid in full
satisfaction of all rights pertaining to the shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Common Stock.
2.5 NO FRACTIONAL SHARES OF PFIZER COMMON STOCK. (a) No
certificates or scrip or shares of Pfizer Common Stock representing
fractional shares of Pfizer 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 Pfizer or a holder of shares of Pfizer
Common Stock.
(b) Notwithstanding any other provision of this Agreement, each
holder of shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock exchanged pursuant to the
Merger who would otherwise have been entitled to receive a fraction of a
share of Pfizer 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 Pfizer Common Stock multiplied by (ii) the closing price for a
share of Pfizer Common Stock on the New York Stock Exchange, Inc. ("NYSE")
Composite Transactions Tape on the date of the Effective Time or, if such
date is not a Business Day, the Business Day immediately following the date
on which the Effective Time occurs.
(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 Pfizer, and Pfizer shall 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.
2.6 TERMINATION OF EXCHANGE FUND. Any portion of the Exchange
Fund which remains undistributed to the holders of Certificates for six
months after the Effective Time shall be delivered to Pfizer or otherwise
on the instruction of Pfizer, and any holders of the Certificates who have
not theretofore complied with this Article II shall thereafter look only to
Pfizer for the Merger Consideration with respect to the shares of ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Common Stock formerly represented thereby to which such holders are
entitled pursuant to Section 1.8 and Section 2.2, any cash in lieu of
fractional shares of Pfizer Common Stock to which such holders are entitled
pursuant to Section 2.5 and any dividends or distributions with respect to
shares of Pfizer Common 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 ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock five 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 (as defined in Section 3.1(c)(iii)) 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.
2.7 NO LIABILITY. None of Pfizer, Merger Sub, ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
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.
2.8 INVESTMENT OF THE EXCHANGE FUND. The Exchange Agent shall
invest any cash included in the Exchange Fund as directed by Pfizer on a
daily basis; provided, that no such gain or loss thereon shall affect the
amounts payable to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ stockholders pursuant to Article I and
the other provisions of this Article II. Any interest and other income
resulting from such investments shall promptly be paid to Pfizer.
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 ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock formerly
represented thereby, any cash in lieu of fractional shares of Pfizer Common
Stock, and unpaid dividends and distributions on shares of Pfizer Common
Stock deliverable in respect thereof, pursuant to this Agreement.
2.10 WITHHOLDING RIGHTS. Each of the Surviving Corporation and
Pfizer shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of shares of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock 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 or Pfizer, 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 the shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock in respect
of which such deduction and withholding was made by the Surviving
Corporation or Pfizer, as the case may be.
2.11 FURTHER ASSURANCES. At and 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 ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or Merger
Sub, any deeds, bills of sale, assignments or assurances and to take and
do, in the name and on behalf of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 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.
2.12 STOCK TRANSFER BOOKS. The stock transfer books of ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ shall be closed immediately upon the Effective Time and there shall
be no further registration of transfers of shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common
Stock thereafter on the records of ▇▇▇▇▇▇-▇▇▇▇▇▇▇. On or after the
Effective Time, any Certificates presented to the Exchange Agent or Pfizer
for any reason shall be converted into the Merger Consideration with
respect to the shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock formerly represented
thereby (including any cash in lieu of fractional shares of Pfizer 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.
2.13 AFFILIATES. Notwithstanding anything to the contrary
herein, to the fullest extent permitted by law, no certificates
representing shares of Pfizer Common Stock or cash shall be delivered to a
Person who may be deemed an "affiliate" of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ in accordance
with Section 5.13 hereof for purposes of Rule 145 under the Securities Act
of 1933, as amended (the "Securities Act"), or for purposes of qualifying
the Merger for pooling-of-interests accounting treatment under Opinion 16
of the Accounting Principles Board and applicable rules and regulations of
the Securities and Exchange Commission (the "SEC") until such Person has
executed and delivered an Affiliate Agreement (as defined in Section 5.13)
to Pfizer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF PFIZER. Except as set
forth in the Pfizer disclosure schedule delivered by Pfizer to ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ prior to the execution of this Agreement (the "Pfizer Disclosure
Schedule") (each section of which qualifies the correspondingly numbered
representation and warranty or covenant), Pfizer represents and warrants to
▇▇▇▇▇▇-▇▇▇▇▇▇▇ as follows:
(a) Organization, Standing and Power; Subsidiaries.
(i) Each of Pfizer and each of its Subsidiaries (as defined in
Section 8.11) is duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization,
has the requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted, except
where the failures to be so organized, existing and in good standing
or to have such power and authority, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Pfizer,
and is duly qualified and in good standing to do business in each
jurisdiction in which the nature of its business or the ownership or
leasing of its properties makes such qualification necessary other
than in such jurisdictions where the failures so to qualify or to be
in good standing, in the aggregate, would not reasonably be expected
to have a Material Adverse Effect on Pfizer. The copies of the
certificate of incorporation and bylaws of Pfizer which were
previously furnished or made available to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ are true,
complete and correct copies of such documents as in effect on the date
of this Agreement.
(ii) Exhibit 21 to Pfizer's Annual Report on Form 10K for the
year ended December 31, 1998 includes all the Subsidiaries of Pfizer
which as of the date of this Agreement are Significant Subsidiaries
(as defined in Rule 1-02 of Regulation S-X of the SEC). All the
outstanding shares of capital stock of, or other equity interests in,
each such Significant Subsidiary have been validly issued and are
fully paid and non-assessable and are, except as set forth in
Exhibit 21, owned directly or indirectly by Pfizer, free and clear of
all pledges, claims, liens, charges, encumbrances and security
interests of any kind or nature whatsoever (collectively "Liens") and
free of any other restriction (including any restriction on the right
to vote, sell or otherwise dispose of such capital stock or other
ownership interests), except for restrictions imposed by applicable
securities laws. Except as set forth in the Pfizer SEC Reports (as
defined in Section 3.1(d)) filed prior to the date hereof, neither
Pfizer nor any of its Subsidiaries directly or indirectly owns any
equity or similar interest in, or any interest convertible into or
exchangeable or exercisable for, any corporation, partnership, joint
venture or other business association or entity (other than
Subsidiaries), that is or would reasonably be expected to be material
to Pfizer and its Subsidiaries taken as a whole.
(b) Capital Structure.
(i) As of December 31, 1999, the authorized capital stock of
Pfizer consisted of (A) 9,000,000,000 shares of Pfizer Common Stock of
which 3,846,907,771 shares were outstanding and 413,166,530 shares
were held in the treasury of Pfizer and (B) 12,000,000 shares of
Preferred Stock, no par value, of which 3,000,000 shares have been
designated Series A Junior Preferred Stock and reserved for issuance
upon exercise of the rights (the "Pfizer Rights") distributed to the
holders of Pfizer Common Stock pursuant to the Rights Agreement, dated
as of October 6, 1997 between Pfizer and ChaseMellon Shareholder
Services, L.L.C. (the "Pfizer Rights Agreement"). Since December 31,
1999 to the date of this Agreement, there have been no issuances of
shares of the capital stock of Pfizer or any other securities of
Pfizer other than issuances of shares pursuant to options or rights
outstanding as of December 31, 1999 under the Benefit Plans (as
defined in Section 8.11(b)) of Pfizer. All issued and outstanding
shares of the capital stock of Pfizer are, and when shares of Pfizer
Common Stock are issued in the Merger or upon exercise of stock
options converted in the Merger pursuant to Section 1.9, such shares
will be, duly authorized, validly issued, fully paid and non-
assessable and free of any preemptive rights. There were outstanding
as of December 31, 1999 no options, warrants or other rights to
acquire capital stock from Pfizer other than (x) the Pfizer Rights and
(y) options, restricted stock and other rights to acquire capital
stock from Pfizer representing in the aggregate the right to purchase
approximately 273,104,687 shares of Pfizer Common Stock (collectively,
the "Pfizer Stock Options") under Pfizer's Stock and Incentive Plan,
Pfizer's Performance-Contingent Share Award Program, Pfizer's Annual
Retainer Unit Award Plan (for non-employee Directors), Pfizer's
Nonfunded Deferred Compensation and Unit Award Plan for Non-Employee
Directors and Pfizer's Restricted Stock Plan for Non-Employee
Directors (collectively, the "Pfizer Stock Option Plans").
Section 3.1(b) of the Pfizer Disclosure Schedule sets forth a complete
and correct list, as of December 31, 1999, of the number of shares of
Pfizer Common Stock subject to Pfizer Stock Options or other rights to
purchase or receive Pfizer Common Stock granted under the Pfizer
Benefit Plans or otherwise, the dates of grant and the exercise prices
thereof. No options or warrants or other rights to acquire capital
stock from Pfizer have been issued or granted since December 31, 1999
to the date of this Agreement.
(ii) No bonds, debentures, notes or other indebtedness of Pfizer
having the right to vote on any matters on which holders of capital
stock of Pfizer may vote ("Pfizer Voting Debt") are issued or
outstanding.
(iii) Except as otherwise set forth in this Section 3.1(b)
and as contemplated by Section 1.8 and Section 1.9, as of the date of
this Agreement, there are no securities, options, warrants, calls,
rights, commitments, agreements, arrangements or undertakings of any
kind to which Pfizer or any of its Subsidiaries is a party or by which
any of them is bound obligating Pfizer or any of its Subsidiaries to
issue, deliver or sell, or cause to be issued, delivered or sold,
additional shares of capital stock or other voting securities of
Pfizer or any of its Subsidiaries or obligating Pfizer or any of its
Subsidiaries to issue, grant, extend or enter into any such security,
option, warrant, call, right, commitment, agreement, arrangement or
undertaking. As of the date of this Agreement, there are no
outstanding obligations of Pfizer or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any shares of capital stock of
Pfizer or any of its Subsidiaries.
(c) Authority; No Conflicts.
(i) Pfizer has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby, subject to obtaining the requisite stockholder
approval of the issuance of the shares of Pfizer Common Stock to be
issued in the Merger (the "Share Issuance") and the Board Amendment
(collectively, the "Pfizer Stockholder Approval"). The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of Pfizer, subject to obtaining the
Pfizer Stockholder Approval. This Agreement has been duly executed
and delivered by Pfizer and constitutes a valid and binding agreement
of Pfizer, enforceable against it in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or affecting
creditors generally or by general equity principles (regardless of
whether such enforceability is considered in a proceeding in equity or
at law).
(ii) The execution and delivery of this Agreement by Pfizer does
not or will not, as the case may be, and the consummation by Pfizer of
the Merger and the other transactions contemplated hereby will not,
conflict with, or result in any violation of, or constitute a default
(with or without notice or lapse of time, or both) under, or give rise
to a right of, or result by its terms in the, termination, amendment,
cancellation or acceleration of any obligation or the loss of a
material benefit under, or the creation of a lien, pledge, security
interest, charge or other encumbrance on, or the loss of, any assets,
including Intellectual Property (any such conflict, violation,
default, right of termination, amendment, cancellation or
acceleration, loss or creation, a "Violation") pursuant to: (A) any
provision of the certificate of incorporation or bylaws of Pfizer or
any material Subsidiary of Pfizer, or (B) except as, in the aggregate,
would not reasonably be expected to have a Material Adverse Effect (as
defined in Section 8.11(g)) on Pfizer, subject to obtaining or making
the consents, approvals, orders, authorizations, registrations,
declarations and filings referred to in paragraph (iii) below, any
loan or credit agreement, note, mortgage, bond, indenture, lease,
benefit plan or other agreement, obligation, instrument, permit,
concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Pfizer or any Subsidiary
of Pfizer or their respective properties or assets.
(iii) No consent, approval, order or authorization of, or
registration, declaration or filing with, any supranational, national,
state, municipal, local or foreign government, any instrumentality,
subdivision, court, administrative agency or commission or other
authority thereof, or any quasi-governmental or private body
exercising any regulatory, taxing, importing or other governmental or
quasi-governmental authority (a "Governmental Entity"), is required by
or with respect to Pfizer or any Subsidiary of Pfizer in connection
with the execution and delivery of this Agreement by Pfizer or the
consummation of the Merger and the other transactions contemplated
hereby, except for those required under or in relation to (A) the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), (B) state securities or "blue sky" laws (the "Blue Sky
Laws"), (C) the Securities Act, (D) the Exchange Act, (E) the DGCL
with respect to the filing of the Certificate of Merger, (F) rules and
regulations of the NYSE, (G) antitrust or other competition laws of
other jurisdictions, and (H) such consents, approvals, orders,
authorizations, registrations, declarations and filings the failures
of which to make or obtain, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on Pfizer. Consents,
approvals, orders, authorizations, registrations, declarations and
filings required under or in relation to any of the foregoing
clauses (A) through (G) are hereinafter referred to as "Necessary
Consents."
(d) Reports and Financial Statements.
(i) Pfizer has filed all required registration statements,
prospectuses, reports, schedules, forms, statements and other
documents required to be filed by it with the SEC since January 1,
1998 (collectively, including all exhibits thereto, the "Pfizer SEC
Reports"). No Subsidiary of Pfizer is required to file any form,
report, registration statement, prospectus or other document with the
SEC. None of the Pfizer SEC Reports, as of their respective dates
(and, if amended or superseded by a filing prior to the date of this
Agreement or the Closing Date, then on the date of such filing),
contained or will contain any untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each of the
financial statements (including the related notes) included in the
Pfizer SEC Reports presents fairly, in all material respects, the
consolidated financial position and consolidated results of operations
and cash flows of Pfizer and its consolidated Subsidiaries as of the
respective dates or for the respective periods set forth therein, all
in conformity with GAAP consistently applied during the periods
involved except as otherwise noted therein, and subject, in the case
of the unaudited interim financial statements, to the absence of notes
and normal year-end adjustments that have not been and are not
expected to be material in amount. All of such Pfizer SEC Reports, as
of their respective dates (and as of the date of any amendment to the
respective Pfizer SEC Report), complied as to form in all material
respects with the applicable requirements of the Securities Act and
the Exchange Act and the rules and regulations promulgated thereunder.
(ii) Except as disclosed in the Pfizer SEC Reports filed prior to
the date hereof, since December 31, 1998, Pfizer and its Subsidiaries
have not incurred any liabilities that are of a nature that would be
required to be disclosed on a balance sheet of Pfizer and its
Subsidiaries or the footnotes thereto prepared in conformity with
GAAP, other than (A) liabilities incurred in the ordinary course of
business or (B) liabilities that, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Pfizer.
(e) Information Supplied.
(i) None of the information supplied or to be supplied by Pfizer
for inclusion or incorporation by reference in (A) the Form S-4 (as
defined in Section 5.1) will, at the time the Form S-4 is filed with
the SEC, at any time it is amended or supplemented or at the time it
becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and (B) the Joint Proxy Statement/Prospectus
(as defined in Section 5.1) will, on the date it is first mailed to
▇▇▇▇▇▇-▇▇▇▇▇▇▇ stockholders or Pfizer stockholders or at the time of
the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stockholders Meeting or the Pfizer Stockholders
Meeting (each as defined in Section 5.1), 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 were made, not
misleading. The Form S-4 and the Joint Proxy Statement/Prospectus
will comply as to form in all material respects with the requirements
of the Exchange Act and the Securities Act and the rules and
regulations of the SEC thereunder.
(ii) Notwithstanding the foregoing provisions of this
Section 3.1(e), no representation or warranty is made by Pfizer with
respect to statements made or incorporated by reference in the Form S-4
or the Joint Proxy Statement/Prospectus based on information supplied
by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ for inclusion or incorporation by reference therein.
(f) Board Approval. The Board of Directors of Pfizer, by
resolutions duly adopted by unanimous vote at a meeting duly called and
held and not subsequently rescinded or modified in any way (the "Pfizer
Board Approval"), has duly (i) determined that this Agreement and the
Merger are advisable and are fair to and in the best interests of Pfizer
and its stockholders, (ii) approved this Agreement, the Merger, the Board
Amendment, the Pfizer Bylaw Amendment and the Share Issuance and
(iii) recommended that the stockholders of Pfizer approve the Share
Issuance and adopt the Board Amendment and directed that the Share Issuance
and the Board Amendment be submitted for consideration by Pfizer's
stockholders at the Pfizer Stockholders Meeting. The Pfizer Board Approval
constitutes approval of this Agreement and the Merger for purposes of
Section 203 of the DGCL. To the knowledge of Pfizer, except for
Section 203 of the DGCL (which has been rendered inapplicable), no state
takeover statute is applicable to this Agreement, the Merger or the other
transactions contemplated hereby.
(g) Vote Required. The affirmative vote of at least a majority
of the votes cast by the holders of Pfizer Common Stock, provided that the
total votes cast represents a majority of the outstanding shares of Pfizer
Common Stock, is the only vote necessary to approve the Share Issuance.
The affirmative vote of the holders of at least 80% of the outstanding
shares of Pfizer Common Stock is necessary to approve the Board Amendment.
(h) Litigation; Compliance with Laws.
(i) Except as disclosed in the Pfizer SEC Reports filed prior to
the date of this Agreement, there are no suits, actions or proceedings
(collectively "Actions") pending or, to the knowledge of Pfizer,
threatened, against or affecting Pfizer or any Subsidiary of Pfizer
which, in the aggregate, would reasonably be expected to have a
Material Adverse Effect on Pfizer, nor are there any judgments,
decrees, injunctions, rules or orders of any Governmental Entity or
arbitrator outstanding against Pfizer or any Subsidiary of Pfizer
which, in the aggregate, would reasonably be expected to have a
Material Adverse Effect on Pfizer.
(ii) Except as disclosed in the Pfizer SEC Reports filed prior to
the date of this Agreement and except as, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Pfizer,
Pfizer and its Subsidiaries hold all permits, licenses, variances,
exemptions, orders and approvals of all Governmental Entities which
are necessary for the operation of the businesses of Pfizer and its
Subsidiaries, taken as a whole (the "Pfizer Permits"). Pfizer and its
Subsidiaries are in compliance with the terms of the Pfizer Permits,
except where the failures to so comply, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Pfizer.
Except as disclosed in the Pfizer SEC Reports filed prior to the date
of this Agreement, neither Pfizer nor any of its Subsidiaries is in
violation of, and Pfizer and its Subsidiaries have not received any
notices of violations with respect to, any laws, ordinances or
regulations of any Governmental Entity, except for violations which,
in the aggregate, would not reasonably be expected to have a Material
Adverse Effect on Pfizer.
(i) Absence of Certain Changes or Events. Except for
liabilities incurred in connection with this Agreement or the transactions
contemplated hereby, except as disclosed in the Pfizer SEC Reports filed
prior to the date of this Agreement, and except as permitted by
Section 4.1, since September 30, 1999, (i) Pfizer and its Subsidiaries have
conducted their business only in the ordinary course and (ii) there has not
been any action taken by Pfizer or any of its Subsidiaries during the
period from September 30,1999 through the date of this Agreement that, if
taken during the period from the date of this Agreement through the
Effective Time, would constitute a breach of Section 4.1. Except as
disclosed in the Pfizer SEC Reports filed prior to the date of this
Agreement, since December 31, 1998, there have not been any changes,
circumstances or events (including changes, circumstances or events
involving, impacting or related to development stage products of Pfizer)
which, in the aggregate, have had, or would reasonably be expected to have,
a Material Adverse Effect on Pfizer.
(j) Environmental Matters. Except as, in the aggregate, would
not reasonably be expected to have a Material Adverse Effect on Pfizer and
except as disclosed in the Pfizer SEC Reports filed prior to the date of
this Agreement (i) the operations of Pfizer and its Subsidiaries have been
and are in compliance with all Environmental Laws (as defined below), and
with all licenses required by Environmental Laws, (ii) there are no pending
or, to the knowledge of Pfizer, threatened, Actions under or pursuant to
Environmental Laws against Pfizer or its Subsidiaries or involving any real
property currently or, to the knowledge of Pfizer, formerly owned, operated
or leased by Pfizer or its Subsidiaries, (iii) Pfizer and its Subsidiaries
are not subject to any Environmental Liabilities (as defined below), and,
to the knowledge of Pfizer, no facts, circumstances or conditions relating
to, arising from, associated with or attributable to any real property
currently or, to the knowledge of Pfizer, formerly owned, operated or
leased by Pfizer or its Subsidiaries or operations thereon would reasonably
be expected to result in Environmental Liabilities, (iv) all real property
owned and, to the knowledge of Pfizer, all real property operated or leased
by Pfizer or its Subsidiaries is free of contamination from Hazardous
Material (as defined below) that would have an adverse effect on human
health or the environment and (v) there is not now, nor, to the knowledge
of Pfizer, has there been in the past, on, in or under any real property
owned, leased or operated by Pfizer or any of its predecessors (A) any
underground storage tanks regulated pursuant to 40 C.F.R. Part 280 or
delegated state programs, dikes or impoundments containing more than a
reportable quantity of Hazardous Materials, (B) any friable asbestos-
containing materials or (C) any polychlorinated biphenyls.
As used in this Agreement, "Environmental Laws" means any and all federal,
state, foreign, interstate, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decisions, injunctions, orders, decrees,
requirements of any Governmental Entity, any and all common law requirements,
rules and bases of liability regulating, relating to or imposing liability or
standards of conduct concerning pollution, Hazardous Materials or protection of
human health, safety or the environment, as currently in effect and includes the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
sections 9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
sections 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
sections 6901, et seq., the Clean Water Act, 33 U.S.C. sections 1251, et seq.,
the Clean Air Act, 33 U.S.C. sections 2601, et seq., the Toxic Substances
Control Act, 15 U.S.C. sections 2601, et seq., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. sections 136, et seq., Occupational
Safety and Health Act 29 U.S.C. sections 651, et seq. and the Oil Pollution Act
of 1990, 33 U.S.C. sections 2701, et seq., as such laws have been amended or
supplemented, and the regulations promulgated pursuant thereto, and all
analogous state or local statutes. As used in this Agreement, "Environmental
Liabilities" with respect to any person means any and all liabilities of or
relating to such person or any of its Subsidiaries (including any entity which
is, in whole or in part, a predecessor of such person or any of such
Subsidiaries), whether vested or unvested, contingent or fixed, actual or
potential, known or unknown, which (i) arise under or relate to matters covered
by Environmental Laws and (ii) relate to actions occurring or conditions
existing on or prior to the Closing Date. As used in this Agreement, "Hazardous
Materials" means any materials or wastes, defined, listed, classified or
regulated as hazardous, toxic, a pollutant, a contaminant or dangerous in or
under any Environmental Laws which includes petroleum, petroleum products,
friable asbestos, urea formaldehyde, radioactive materials and polychlorinated
biphenyls.
(k) Intellectual Property. Except as, in the aggregate, would
not reasonably be expected to have a Material Adverse Effect on Pfizer and
except as disclosed in the Pfizer SEC Reports filed prior to the date of
the Agreement: (i) Pfizer and each of its Subsidiaries owns, or is
licensed to use (in each case, free and clear of any Liens), all
Intellectual Property (as defined below) used in or necessary for the
conduct of its business as currently conducted; (ii) the use of any
Intellectual Property by Pfizer 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 Pfizer or any Subsidiary acquired the
right to use any Intellectual Property; (iii) to the knowledge of Pfizer,
no Person is challenging, infringing on or otherwise violating any right of
Pfizer or any of its Subsidiaries with respect to any Intellectual Property
owned by and/or licensed to Pfizer or its Subsidiaries; and (iv) neither
Pfizer 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 Pfizer and its Subsidiaries
and to its knowledge no Intellectual Property owned and/or licensed by
Pfizer 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
jurisdiction of, and applications in any 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 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 jurisdiction; nonpublic information, trade secrets and
confidential information and rights in any jurisdiction to limit the use or
disclosure thereof by any person; writings and other works, whether
copyrightable or not, in any jurisdiction; and registrations or
applications for registration of copyrights in any jurisdiction, and any
renewals or extensions thereof; any similar intellectual property or
proprietary rights.
(l) Brokers or Finders. No agent, broker, investment banker,
financial advisor or other firm or Person is or will be entitled to any
broker's or finder's fee or any other similar commission or fee in
connection with any of the transactions contemplated by this Agreement,
based upon arrangements made by or on behalf of Pfizer, except Lazard
FrEres & Co. LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., each of whose fees and expenses
will be paid by Pfizer in accordance with Pfizer's agreements with such
firms, copies of which have been provided to ▇▇▇▇▇▇-▇▇▇▇▇▇▇.
(m) Opinions of Pfizer Financial Advisors. Pfizer has received
the opinions of Lazard FrEres & Co. LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., each dated
the date of this Agreement, to the effect that, as of such date, the
Exchange Ratio is fair to Pfizer, from a financial point of view, copies
of which opinions will be promptly delivered to ▇▇▇▇▇▇-▇▇▇▇▇▇▇.
(n) Accounting Matters. To the knowledge of Pfizer, neither
Pfizer nor any of its affiliates has taken or agreed to take any action,
and no fact or circumstance is known to Pfizer, that would prevent Pfizer
from accounting for the Merger as a "pooling-of-interests" under Opinion 16
of the Accounting Principles Board and applicable SEC rules and
regulations.
(o) Taxes. Each of Pfizer and its Subsidiaries has accurately
filed all Tax Returns required to have been filed (or extensions have been
duly obtained) and has paid all Taxes required to have been paid by it,
except where failure to accurately file such Tax Returns or pay such Taxes
would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect on Pfizer. For purposes of this Agreement: (i) "Tax" (and,
with correlative meaning, "Taxes") means any federal, state, local or
foreign income, gross receipts, property, sales, use, license, excise,
franchise, employment, payroll, withholding, alternative or add on minimum,
ad valorem, transfer or excise tax, or any other tax, custom, duty,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest or penalty, imposed by any governmental
authority or any obligation to pay Taxes imposed on any entity for which a
party to this Agreement is liable as a result of any indemnification
provision or other contractual obligation, and (ii) "Tax Return" means any
return, report or similar statement required to be filed with respect to
any Tax (including any attached schedules), including, without limitation,
any information return, claim for refund, amended return or declaration of
estimated Tax.
(p) Certain Contracts. As of the date hereof, except as set
forth in the Pfizer SEC Reports filed prior to the date of this Agreement,
neither Pfizer nor any of its Subsidiaries is a party to or bound by
(i) any "material contracts" (as such term is defined in Item 601(b)(10) of
Regulation S-K of the SEC) or (ii) any non-competition agreements or any
other agreements or arrangements that limit or otherwise restrict Pfizer or
any of its Subsidiaries or any of their respective affiliates or any
successor thereto, or that would, after the Effective Time, to the
knowledge of Pfizer, limit or restrict Pfizer or any of its affiliates
(including the Surviving Corporation) or any successor thereto, from
engaging or competing in any line of business or in any geographic area,
which agreements or arrangements, in the aggregate, would reasonably be
expected to have a Material Adverse Effect on Pfizer and its Subsidiaries
(including the Surviving Corporation and its Subsidiaries), taken together,
after giving effect to the Merger.
(q) Pfizer Stockholder Rights Plan. The Board of Directors of
Pfizer has amended the Pfizer Rights Agreement in accordance with its terms
to render it inapplicable to the transactions contemplated by this
Agreement. Pfizer has delivered to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ a true and correct copy
of the Pfizer Rights Agreement, as amended, in effect as of execution and
delivery of this Agreement.
(r) Employee Benefit Plans. Except as disclosed in the Pfizer
SEC Reports, there are no Benefit Plans maintained by Pfizer covering only
Pfizer executive officers. Each Benefit Plan maintained by Pfizer has been
operated and administered in accordance with its terms and applicable law,
except where failure to do so would not reasonably be expected to have a
Material Adverse Effect on Pfizer. The execution of this Agreement and the
consummation of the Merger will not constitute an event under any Benefit
Plan maintained by Pfizer that will or may result in any payment,
acceleration, forgiveness of indebtedness, vesting, distribution, increase
in compensation or benefits or obligation to fund benefits with respect to
any Pfizer employee which, in the aggregate, have had, or would reasonably
be expected to have, a Material Adverse Effect on Pfizer.
(s) Labor Matters. Except where failure to comply would not
reasonably be expected to have a Material Adverse Effect on Pfizer, Pfizer
is and has been 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 and wages and hours, including, without
limitation, ERISA, the Code, the Immigration Reform and Control Act, the
Worker Adjustment and Retraining Notification Act (the "WARN 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,
continuation of health insurance ("COBRA"), labor relations, employee leave
issues, wage and hour standards, occupational safety and health
requirements and unemployment insurance and related matters, and is not
engaged in any unfair labor practices.
3.2 REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇-▇▇▇▇▇▇▇. Except as
set forth in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Disclosure Schedule delivered by ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ to Pfizer prior to the execution of this Agreement (the "▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Disclosure Schedule") (each section of which qualifies the
correspondingly numbered representation and warranty or covenant), ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ represents and warrants to Pfizer as follows:
(a) Organization, Standing and Power; Subsidiaries.
(i) Each of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and each of its Subsidiaries is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization, has the requisite power
and authority to own, lease and operate its properties and to carry on
its business as now being conducted, except where the failures to be
so organized, existing and in good standing or to have such power and
authority, in the aggregate, would not reasonably be expected to have
a Material Adverse Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇, and is duly qualified and
in good standing to do business in each jurisdiction in which the
nature of its business or the ownership or leasing of its properties
makes such qualification necessary other than in such jurisdictions
where the failures so to qualify or to be in good standing in the
aggregate would not reasonably be expected to have a Material Adverse
Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇. The copies of the certificate of
incorporation and bylaws of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ which were previously
furnished or made available to Pfizer are true, complete and correct
copies of such documents as in effect on the date of this Agreement.
(ii) Exhibit 21 to ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ Annual Report on Form 10K for
the year ended December 31, 1998 includes all the Subsidiaries of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ which as of the date of this Agreement are Significant
Subsidiaries (as defined in Rule 1-02 of Regulation S-X of the SEC).
All the outstanding shares of capital stock of, or other equity
interests in, each such Significant Subsidiary have been validly
issued and are fully paid and non-assessable and are, except as set
forth in Exhibit 21, owned directly or indirectly by ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
free and clear of all Liens and free of any other restriction
(including any restriction on the right to vote, sell or otherwise
dispose of such capital stock or other ownership interests), except
for restrictions imposed by applicable securities laws. Except as set
forth in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports (as defined in Section 3.2(d))
filed prior to the date hereof, neither ▇▇▇▇▇▇-▇▇▇▇▇▇▇ nor any of its
Subsidiaries directly or indirectly owns any equity or similar
interest in, or any interest convertible into or exchangeable or
exercisable for, any corporation, partnership, joint venture or other
business association or entity (other than Subsidiaries), that is or
would reasonably be expected to be material to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its
Subsidiaries taken as a whole.
(b) Capital Structure.
(i) As of December 31, 1999, the authorized capital stock of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ consisted of (A) 1,200,000,000 shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Common Stock, of which 862,047,037 shares were outstanding and
99,934,571 shares were held in the treasury of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and
(B) 5,000,000 shares of Preferred Stock, par value $1.00 per share,
none of which were outstanding and 400,000 shares of which have been
designated Series A Junior Participating Preferred Stock and reserved
for issuance upon exercise of the rights (the "▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights")
distributed to the holders of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock pursuant to
the Rights Agreement dated as of March 25, 1997, between ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ and First Chicago Trust Company of New York (the "▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Rights Agreement"). Since December 31, 1999 to the date of
this Agreement, there have been no issuances of shares of the capital
stock of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any other securities of ▇▇▇▇▇▇-▇▇▇▇▇▇▇
other than issuances of shares (and accompanying ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Rights) pursuant to options or rights outstanding as of December 31,
1999 under the Benefit Plans of ▇▇▇▇▇▇-▇▇▇▇▇▇▇. All issued and
outstanding shares of the capital stock of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ are duly
authorized, validly issued, fully paid and non-assessable, and no
class of capital stock is entitled to preemptive rights. There were
outstanding as of December 31, 1999 no options, warrants or other
rights to acquire capital stock from ▇▇▇▇▇▇-▇▇▇▇▇▇▇ other than (x) the
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights and (y) options and other rights to acquire
capital stock of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ representing in the aggregate the
right to purchase 71,520,520 shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock
(collectively, the "▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Options") under the 1989
Stock Plan, the 1992 Stock Plan, the 1996 Stock Plan and the
Restricted Stock Plan for Directors (collectively, the "▇▇▇▇▇▇-▇▇▇▇▇▇▇
Stock Option Plans"). Except in connection with pre-employment grants
of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Options made in a manner consistent with past
practice to purchase, in the aggregate, not more than 5,000 shares of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock, Section 3.2(b) of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Disclosure Schedule sets forth a complete and correct list, as of
December 31, 1999, of the number of shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common
Stock subject to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Options or other rights to
purchase or receive ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock granted under the
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Benefit Plans or otherwise, the dates of grant and the
exercise prices thereof. Except in connection with pre-employment
grants of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Options made in a manner consistent
with past practice to purchase, in the aggregate, not more than 10,000
shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock, and except as set forth on
Schedule 3.2(b)(i) of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Disclosure Schedule, no
options or warrants or other rights to acquire capital stock from
▇▇▇▇▇▇-▇▇▇▇▇▇▇ have been issued or granted since December 31, 1999 to
the date of this Agreement.
(ii) No bonds, debentures, notes or other indebtedness of ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ having the right to vote on any matters on which stockholders
may vote ("▇▇▇▇▇▇-▇▇▇▇▇▇▇ Voting Debt") are issued or outstanding.
(iii) Except as otherwise set forth in this Section 3.2(b),
as of the date of this Agreement, there are no securities, options,
warrants, calls, rights, commitments, agreements, arrangements or
undertakings of any kind to which ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of its
Subsidiaries is a party or by which any of them is bound obligating
▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of its Subsidiaries to issue, deliver or sell,
or cause to be issued, delivered or sold, additional shares of capital
stock or other voting securities of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of its
Subsidiaries or obligating ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of its Subsidiaries
to issue, grant, extend or enter into any such security, option,
warrant, call, right, commitment, agreement, arrangement or
undertaking. As of the date of this Agreement, there are no
outstanding obligations of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of its Subsidiaries
to repurchase, redeem or otherwise acquire any shares of capital stock
of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of its Subsidiaries.
(c) Authority; No Conflicts.
(i) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ has all requisite corporate power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby, subject in the case of the
consummation of the Merger to the adoption of this Agreement by the
Required ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Vote (as defined in Section 3.2(g)). The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, subject in
the case of the consummation of the Merger to the adoption of this
Agreement by the Required ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Vote. This Agreement has
been duly executed and delivered by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and constitutes a
valid and binding agreement of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, enforceable against it
in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and
similar laws relating to or affecting creditors generally or by
general equity principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(ii) The execution and delivery of this Agreement by ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ does not or will not, as the case may be, and the consummation
by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ of the Merger and the other transactions
contemplated hereby will not, conflict with, or result in a Violation
pursuant to: (A) any provision of the certificate of incorporation or
bylaws of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any material Subsidiary of ▇▇▇▇▇▇-▇▇▇▇▇▇▇
or (B) except as, in the aggregate, would not reasonably be expected
to have a Material Adverse Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or, subject to
obtaining or making the consents, approvals, orders, authorizations,
registrations, declarations and filings referred to in paragraph
(iii) below, any loan or credit agreement, note, mortgage, bond,
indenture, lease, benefit plan or other agreement, obligation,
instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to
▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any Subsidiary of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or their respective
properties or assets.
(iii) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is
required by or with respect to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any Subsidiary of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ in connection with the execution and delivery of this
Agreement by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or the consummation of the Merger and the
other transactions contemplated hereby, except the Necessary Consents
and such consents, approvals, orders, authorizations, registrations,
declarations and filings the failure of which to make or obtain, in
the aggregate, would not reasonably be expected to have a Material
Adverse Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇.
(d) Reports and Financial Statements.
(i) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ has filed all required registration
statements, prospectuses, reports, schedules, forms, statements and
other documents required to be filed by it with the SEC since
January 1, 1998 (collectively, including all exhibits thereto, the
"▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports"). No Subsidiary of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ is
required to file any form, report, registration statement or
prospectus or other document with the SEC. None of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇
SEC Reports, as of their respective dates (and, if amended or
superseded by a filing prior to the date of this Agreement or the
Closing Date, then on the date of such filing), contained or will
contain any untrue statement of a material fact or omitted or will
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each of the
financial statements (including the related notes) included in the
▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports presents fairly, in all material respects,
the consolidated financial position and consolidated results of
operations and cash flows of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its consolidated
Subsidiaries as of the respective dates or for the respective periods
set forth therein, all in conformity with GAAP consistently applied
during the periods involved except as otherwise noted therein, and
subject, in the case of the unaudited interim financial statements, to
the absence of notes and normal and recurring year-end adjustments
that have not been and are not expected to be material in amount. All
of such ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports, as of their respective dates (and
as of the date of any amendment to the respective ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC
Report), complied as to form in all material respects with the
applicable requirements of the Securities Act and the Exchange Act and
the rules and regulations promulgated thereunder.
(ii) Except as disclosed in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports filed
prior to the date hereof, since December 31, 1998, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and
its Subsidiaries have not incurred any liabilities that are of a
nature that would be required to be disclosed on a balance sheet of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries or the footnotes thereto prepared
in conformity with GAAP, other than (A) liabilities incurred in the
ordinary course of business, or (B) liabilities that, in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇.
(e) Information Supplied.
(i) None of the information supplied or to be supplied by
▇▇▇▇▇▇-▇▇▇▇▇▇▇ for inclusion or incorporation by reference in (A) the
Form S-4 will, at the time the Form S-4 is filed with the SEC, at any
time it is amended or supplemented or at the time it becomes effective
under the Securities Act, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and
(B) the Joint Proxy Statement/Prospectus will, on the date it is first
mailed to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ stockholders or Pfizer stockholders or at the
time of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stockholders Meeting or the Pfizer
Stockholders Meeting, 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 were made, not misleading. The Form S-
4 and the Joint Proxy Statement/Prospectus will comply as to form in
all material respects with the requirements of the Exchange Act and
the Securities Act and the rules and regulations of the SEC
thereunder.
(ii) Notwithstanding the foregoing provisions of this
Section 3.2(e), no representation or warranty is made by ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ with respect to statements made or incorporated by reference
in the Form S-4 or the Joint Proxy Statement/Prospectus based on
information supplied by Pfizer or Merger Sub for inclusion or
incorporation by reference therein.
(f) Board Approval. The Board of Directors of ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
by resolutions duly adopted by unanimous vote of those voting at a meeting
duly called and held and not subsequently rescinded or modified in any way
(the "▇▇▇▇▇▇-▇▇▇▇▇▇▇ Board Approval"), has duly (i) determined that this
Agreement and the Merger are advisable and are fair to and in the best
interests of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its stockholders, (ii) approved this
Agreement and the Merger and (iii) recommended that the stockholders of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ adopt this Agreement and approve the Merger and directed
that this Agreement and the transactions contemplated hereby be submitted
for consideration by ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ stockholders at the ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Stockholders Meeting. The ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Board Approval constitutes
approval of this Agreement and the Merger for purposes of Section 203 of
the DGCL. To the knowledge of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, except for Section 203 of
the DGCL (which has been rendered inapplicable), no state takeover statute
is applicable to this Agreement, the Merger or the other transactions
contemplated hereby or thereby.
(g) Vote Required. The affirmative vote of the holders of a
majority of the outstanding shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock to adopt
this Agreement and approve the Merger (the "Required ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Vote")
is the only vote of the holders of any class or series of ▇▇▇▇▇▇-▇▇▇▇▇▇▇
capital stock necessary to adopt this Agreement and approve the Merger and
the other transactions contemplated hereby.
(h) Litigation; Compliance with Laws.
(i) Except as disclosed in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports filed
prior to the date of this Agreement, there are no Actions pending or,
to the knowledge of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, threatened, against or affecting
▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any Subsidiary of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ which, in the
aggregate, would reasonably be expected to have a Material Adverse
Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇, nor are there any judgments, decrees,
injunctions, rules or orders of any Governmental Entity or arbitrator
outstanding against ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any Subsidiary of ▇▇▇▇▇▇-▇▇▇▇▇▇▇
which, in the aggregate, would reasonably be expected to have a
Material Adverse Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇.
(ii) Except as disclosed in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports filed
prior to the date of the Agreement and except as would, in the
aggregate, not reasonably be expected to have a Material Adverse
Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries hold all
permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities necessary for the operation of the businesses of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries, taken as a whole (the "▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Permits"). ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries are in
compliance with the terms of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Permits, except where
the failures to so comply, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇. Except
as disclosed in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports filed prior to the date
of this Agreement, neither ▇▇▇▇▇▇-▇▇▇▇▇▇▇ nor its Subsidiaries is in
violation of, and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries have not
received any notices of violations with respect to, any laws,
ordinances or regulations of any Governmental Entity, except for
violations which, in the aggregate, would not reasonably be expected
to have a Material Adverse Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇.
(i) Absence of Certain Changes or Events. Except for
liabilities incurred in connection with this Agreement or the transactions
contemplated hereby, except as disclosed in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports
filed prior to the date of this Agreement, except as permitted by
Section 4.2, since September 30, 1999, (i) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its
Subsidiaries have conducted their business only in the ordinary course and
(ii) there has not been any action taken by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of its
Subsidiaries during the period from September 30, 1999 through the date of
this Agreement that, if taken during the period from the date of this
Agreement through the Effective Time, would constitute a breach of
Section 4.2. Except as disclosed in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports filed
prior to the date of this Agreement, since December 31, 1998, there have
not been any changes, circumstances or events (including changes,
circumstances or events involving, impacting or related to development
stage products of ▇▇▇▇▇▇-▇▇▇▇▇▇▇) which, in the aggregate, have had, or
would reasonably be expected to have, a Material Adverse Effect on ▇▇▇▇▇▇-
▇▇▇▇▇▇▇.
(j) Environmental Matters. Except as, in the aggregate, would
not reasonably be expected to have a Material Adverse Effect on ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ and except as disclosed in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports filed
prior to the date of this Agreement, (i) the operations of ▇▇▇▇▇▇-▇▇▇▇▇▇▇
and its Subsidiaries have been and are in compliance with all Environmental
Laws and with all licenses required by Environmental Laws, (ii) there are
no pending or, to the knowledge of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, threatened, Actions
under or pursuant to Environmental Laws against ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or its
Subsidiaries or involving any real property currently or, to the knowledge
of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, formerly owned, operated or leased by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or
its Subsidiaries, (iii) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries are not subject
to any Environmental Liabilities and, to the knowledge of ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
no facts, circumstances or conditions relating to, arising from, associated
with or attributable to any real property currently or, to the knowledge of
▇▇▇▇▇▇-▇▇▇▇▇▇▇, formerly owned, operated or leased by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or its
Subsidiaries or operations thereon would reasonably be expected to result
in Environmental Liabilities, (iv) all real property owned and, to the
knowledge of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, all real property operated or leased by
▇▇▇▇▇▇-▇▇▇▇▇▇▇ or its Subsidiaries is free of contamination from Hazardous
Material that would have an adverse effect on human health or the
environment and (v) there is not now, nor, to the knowledge of ▇▇▇▇▇▇-
▇▇▇▇▇▇▇, has there been in the past, on, in or under any real property
owned, leased or operated by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of its predecessors
(A) any underground storage tanks, regulated pursuant to 40 C.F.R. Part 280
or delegated state programs, dikes or impoundments containing more than a
reportable quantity of Hazardous Materials, (B) any friable asbestos-
containing materials or (c) any polychlorinated biphenyls.
(k) Intellectual Property. Except as, in the aggregate, would
not reasonably be expected to have a Material Adverse Effect on ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ and except as disclosed in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports filed
prior to the date of this Agreement, (i) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 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) the use of any Intellectual
Property by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any Subsidiary
acquired the right to use any Intellectual Property; (iii) to the knowledge
of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, no Person is challenging, infringing on or otherwise
violating any right of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of its Subsidiaries with
respect to any Intellectual Property owned by and/or licensed to ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ or its Subsidiaries; and (iv) neither ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries and to its knowledge
no Intellectual Property owned and/or licensed by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 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.
(l) Brokers or Finders. No agent, broker, investment banker,
financial advisor or other firm or Person is or will be entitled to any
broker's or finder's fee or any other similar commission or fee in
connection with any of the transactions contemplated by this Agreement,
based upon arrangements made by or on behalf of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ except Bear,
▇▇▇▇▇▇▇ & Co. Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., whose fees and expenses will be
paid by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ in accordance with ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ agreements with
such firm, copies of which have been provided to Pfizer.
(m) Opinions of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Financial Advisor. ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ has received the opinions of Bear, ▇▇▇▇▇▇▇ & Co. Inc. and ▇▇▇▇▇▇▇
Sachs & Co., dated the date of this Agreement, to the effect that, as of
such date, the Exchange Ratio is fair, from a financial point of view, to
the holders of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock, copies of which opinions will
promptly be provided to Pfizer.
(n) Accounting Matters. To the knowledge of ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
neither ▇▇▇▇▇▇-▇▇▇▇▇▇▇ nor any of its affiliates has taken or agreed to
take any action, and no fact or circumstance is known to ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
that would prevent Pfizer from accounting for the Merger as a "pooling-of-
interests" under Opinion 16 of the Accounting Principles Board and
applicable SEC rules and regulations.
(o) Taxes. Each of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries has
accurately filed all Tax Returns required to have been filed (or extensions
have been duly obtained) and has paid all Taxes required to have been paid
by it, except where failure to accurately file such Tax Returns or pay such
Taxes would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇.
(p) Certain Contracts. As of the date hereof, except as set
forth in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports filed prior to the date of this
Agreement, neither ▇▇▇▇▇▇-▇▇▇▇▇▇▇ nor any of its Subsidiaries is a party to
or bound by (i) any "material contracts" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC) or (ii) any non-competition
agreements or any other agreements or arrangements that limit or otherwise
restrict ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of its Subsidiaries or any of their
respective affiliates or any successor thereto or that would, after the
Effective Time, to the knowledge of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, limit or restrict
Pfizer or any of its affiliates (including the Surviving Corporation) or
any successor thereto, from engaging or competing in any line of business
or in any geographic area, which agreements or arrangements, in the
aggregate, would reasonably be expected to have a Material Adverse Effect
on Pfizer and its Subsidiaries (including the Surviving Corporation and its
Subsidiaries), taken together, after giving effect to the Merger.
(q) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stockholder Rights Plan. The Board of
Directors of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ has amended the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights Agreement
in accordance with its terms to render it inapplicable to the transactions
contemplated by this Agreement. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ has delivered to Pfizer a
true and correct copy of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights Agreement, as amended,
in effect as of execution and delivery of this Agreement.
(r) Employee Benefit Plans. Except as disclosed in the ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ SEC Reports, there are no Benefit Plans maintained by ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ covering only ▇▇▇▇▇▇-▇▇▇▇▇▇▇ executive officers. Each Benefit Plan
maintained by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ has been operated and administered in
accordance with its terms and applicable law, except where failure to do so
would not reasonably be expected to have a Material Adverse Effect on
▇▇▇▇▇▇-▇▇▇▇▇▇▇. The execution of this Agreement and the consummation of the
Merger will not constitute an event under any Benefit Plan maintained by
▇▇▇▇▇▇-▇▇▇▇▇▇▇ that will or may result in any payment, acceleration,
forgiveness of indebtedness, vesting, distribution, increase in
compensation or benefits or obligation to fund benefits with respect to any
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employee (US), ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employee (Non-US) or ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Employee (Collective Bargaining Units) which, in the aggregate,
have had, or would reasonably be expected to have, a Material Adverse
Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ Board of Directors has not
declared an "other circumstance" to have occurred within the meaning of
Section 4.2(y) of ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ Enhanced Severance Plan.
(s) Labor Matters. Except where failure to comply would not
reasonably be expected to have a Material Adverse Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
▇▇▇▇▇▇-▇▇▇▇▇▇▇ is and has been 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 and wages and hours,
including, without limitation, ERISA, the Code, the Immigration Reform and
Control Act, the WARN 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, and is not
engaged in any unfair labor practices.
3.3 REPRESENTATIONS AND WARRANTIES OF PFIZER AND MERGER SUB.
Pfizer and Merger Sub represent and warrant to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ as follows:
(a) Organization. Merger Sub is a corporation duly
incorporated, validly existing and in good standing under the laws of
Delaware. Merger Sub is a direct wholly-owned subsidiary of Pfizer.
(b) Corporate Authorization. Merger Sub has all requisite
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery
and performance by Merger Sub of this Agreement and the consummation by
Merger Sub of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Merger Sub.
This Agreement has been duly executed and delivered by Merger Sub and
constitutes a valid and binding agreement of Merger Sub, enforceable
against it in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors generally or by general
equity principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
(c) Non-Contravention. The execution, delivery and performance
by Merger Sub of this Agreement and the consummation by Merger Sub of the
transactions contemplated hereby do not and will not contravene or conflict
with the certificate of incorporation or bylaws of Merger Sub.
(d) 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.
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
4.1 COVENANTS OF PFIZER. During the period from the date of
this Agreement and continuing until the Effective Time, Pfizer agrees as to
itself and its Subsidiaries that (except as expressly contemplated or
permitted by this Agreement or the Pfizer Disclosure Schedule or as
required by a Governmental Entity of competent jurisdiction or to the
extent that ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall otherwise consent in writing, which
consent shall not be unreasonably withheld or delayed):
(a) Ordinary Course.
(i) Pfizer and its Subsidiaries shall carry on their respective
businesses in the usual, regular and ordinary course in all material
respects, in substantially the same manner as heretofore conducted,
and shall use all reasonable efforts to preserve intact their present
lines of business, maintain their rights and franchises and preserve
their relationships with customers, suppliers and others having
business dealings with them to the end that their ongoing businesses
shall not be impaired in any material respect at the Effective Time;
provided, however, that no action by Pfizer or its Subsidiaries with
respect to matters specifically addressed by any other provision of
this Section 4.1 shall be deemed a breach of this Section 4.1(a)(i)
unless such action would constitute a breach of one or more of such
other provisions.
(ii) Other than in connection with acquisitions permitted by
Section 4.1(e), Pfizer shall not, and shall not permit any of its
Subsidiaries to, (A) enter into any new material line of business or
(B) incur or commit to any capital expenditures or any obligations or
liabilities in connection therewith other than capital expenditures
and obligations or liabilities in connection therewith incurred or
committed to in the ordinary course of business consistent with past
practice and which, together with all such expenditures incurred or
committed since January 1, 2000, are not in excess of the amounts set
forth in Section 4.1(a) of the Pfizer Disclosure Schedule.
(b) Dividends; Changes in Share Capital. Pfizer shall not, and
shall not permit any of its Subsidiaries to, and shall not propose to,
(i) declare or pay any dividends on or make other distributions in respect
of any of its capital stock, except (A) the declaration and payment of
regular quarterly cash dividends not in excess of $0.09 per share of Pfizer
Common Stock with usual record and payment dates for such dividends in
accordance with past dividend practice and (B) for dividends by wholly
owned Subsidiaries of Pfizer, (ii) split, combine or reclassify any of its
capital stock or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of or in substitution for, shares of its
capital stock, except for any such transaction by a wholly owned Subsidiary
of Pfizer which remains a wholly owned Subsidiary after consummation of
such transaction or (iii) repurchase, redeem or otherwise acquire any
shares of its capital stock or any securities convertible into or
exercisable for any shares of its capital stock except for the purchase
from time to time by Pfizer of Pfizer Common Stock (and the associated
Pfizer Rights) in the ordinary course of business consistent with past
practice in connection with the Pfizer Benefit Plans and, subject to the
restrictions contained in Section 4.1(h) herein, except for the redemption
or exchange of Pfizer Rights in accordance with the Pfizer Rights Agreement
or repurchases of shares of Pfizer Common Stock up to $1.9 billion pursuant
to its previously announced repurchase program.
(c) Issuance of Securities. Pfizer shall not, and shall not
permit any of its Subsidiaries to, issue, deliver or sell, or authorize or
propose the issuance, delivery or sale of, any shares of its capital stock
of any class, any Pfizer Voting Debt or any securities convertible into or
exercisable for, or any rights, warrants, calls or options to acquire, any
such shares or Pfizer Voting Debt, or enter into any commitment,
arrangement, undertaking or agreement with respect to any of the foregoing,
other than (i) the issuance of Pfizer Common Stock (and the associated
Pfizer Rights) upon the exercise of Pfizer Stock Options or in connection
with other stock-based benefit plans outstanding on the date hereof, in
each case in accordance with their present terms or pursuant to Pfizer
Stock Options or other stock based awards granted pursuant to clause (ii)
below, (ii) the granting of Pfizer Stock Options or other stock based
awards to acquire shares of Pfizer Common Stock granted under stock based
benefit plans outstanding on the date hereof in the ordinary course of
business consistent with past practice not in excess of the amounts set
forth in Section 4.1(c) of the Pfizer Disclosure Schedule, (iii) issuances
by a wholly owned Subsidiary of Pfizer of capital stock to such
Subsidiary's parent or another wholly owned Subsidiary of Pfizer,
(iv) pursuant to acquisitions set forth on the Pfizer Disclosure Schedule
or the financings therefor or (v) issuances in accordance with the Pfizer
Rights Agreement.
(d) Governing Documents. Except to the extent required to
comply with their respective obligations hereunder or with applicable law,
Pfizer and Merger Sub shall not amend or propose to so amend their
respective certificates of incorporation, bylaws or other governing
documents.
(e) No Acquisitions. Other than (i) acquisitions disclosed on
the Pfizer Disclosure Schedule and (ii) acquisitions for cash in existing
or related lines of business of Pfizer the fair market value of the total
consideration (including the value of indebtedness acquired or assumed) for
which does not exceed the amount specified in the aggregate for all such
acquisitions in Section 4.1(e) of the Pfizer Disclosure Schedule and none
of which acquisitions referred to in this clause (ii) presents a material
risk of making it more difficult to obtain any approval or authorization
required in connection with the Merger under Regulatory Laws, Pfizer shall
not, and shall not permit any of its Subsidiaries to, acquire or agree to
acquire by merging or consolidating with, or by purchasing a substantial
equity interest in or a substantial portion of the assets of, or by any
other manner, any business or any corporation, partnership, association or
other business organization or division thereof or otherwise acquire or
agree to acquire any assets (other than the acquisition of assets used in
the operations of the business of Pfizer and its Subsidiaries in the
ordinary course, which assets do not constitute a business unit, division
or all or substantially all of the assets of the transferor); provided,
however, that the foregoing shall not prohibit (x) internal reorganizations
or consolidations involving existing Subsidiaries of Pfizer or (y) the
creation of new Subsidiaries of Pfizer organized to conduct or continue
activities otherwise permitted by this Agreement.
(f) No Dispositions. Other than (i) internal reorganizations or
consolidations involving existing Subsidiaries of Pfizer, (ii) dispositions
referred to in Pfizer SEC Reports filed prior to the date of this Agreement
or (iii) as may be required by or in conformance with law or regulation in
order to permit or facilitate the consummation of the transactions
contemplated hereby or the transactions disclosed in the Pfizer Disclosure
Schedule, Pfizer shall not, and shall not permit any of its Subsidiaries
to, sell, lease or otherwise dispose of, or agree to sell, lease or
otherwise dispose of, any of its assets (including capital stock of
Subsidiaries of Pfizer but excluding inventory in the ordinary course of
business), if the fair market value of the total consideration (including
the value of the indebtedness acquired or assumed) therefor exceeds the
amount specified in the aggregate for all such dispositions in
Section 4.1(f) of the Pfizer Disclosure Schedule.
(g) Investments; Indebtedness. Pfizer shall not, and shall not
permit any of its Subsidiaries to, other than in connection with actions
permitted by Section 4.1(e), (i) make any loans, advances or capital
contributions to, or investments in, any other Person, other than (x) by
Pfizer or a Subsidiary of Pfizer to or in Pfizer or any Subsidiary of
Pfizer, (y) pursuant to any contract or other legal obligation of Pfizer or
any of its Subsidiaries existing at the date of this Agreement or (z) in
the ordinary course of business consistent with past practice in an
aggregate amount not in excess of the aggregate amount specified in
Section 4.1(g) of the Pfizer Disclosure Schedule (provided that none of
such transactions referred to in this clause (z) presents a material risk
of making it more difficult to obtain any approval or authorization
required in connection with the Merger under Regulatory Laws) or
(ii) create, incur, assume or suffer to exist any indebtedness, issuances
of debt securities, guarantees, loans or advances not in existence as of
the date of this Agreement except pursuant to the credit facilities,
indentures and other arrangements in existence on the date of this
Agreement or in the ordinary course of business consistent with past
practice, in each case as such credit facilities, indentures and other
arrangements may be amended, extended, modified, refunded, renewed or
refinanced after the date of this Agreement.
(h) Pooling; Tax-Free Qualification. Pfizer shall use its
reasonable best efforts not to, and shall use its reasonable best efforts
not to permit any of its Subsidiaries to, take any action (including any
action otherwise permitted by this Section 4.1) that would prevent or
impede the Merger from qualifying as a "pooling of interests" for
accounting purposes or as a "reorganization" under Section 368 of the Code.
(i) Compensation. Other than as contemplated by Section 5.6 or
by Section 4.1(c) or 4.1(i) of the Pfizer Disclosure Schedule, Pfizer shall
not increase the amount of compensation of any director, executive officer
or employee, make any increase in or commitment to increase any employee
benefits, issue any additional Pfizer Stock Options, adopt or make any
commitment to adopt any additional employee benefit plan or make any
contribution, other than regularly scheduled contributions, to any Pfizer
Benefit Plan and, in the case of any of the foregoing, except in the
ordinary course of business consistent with past practice or as required by
an existing agreement.
(j) Accounting Methods; Income Tax Elections. Except as
disclosed in Pfizer SEC Reports filed prior to the date of this Agreement,
or as required by a Governmental Entity, Pfizer shall not change its
methods of accounting in effect at December 31, 1998, except as required by
changes in GAAP as concurred in by Pfizer's independent public accountants.
Pfizer shall not (i) change its fiscal year or (ii) make any material tax
election, other than in the ordinary course of business consistent with
past practice.
(k) Certain Agreements. Pfizer shall not, and shall not permit
any of its Subsidiaries to, enter into any agreements or arrangements that
limit or otherwise restrict Pfizer or any of its Subsidiaries or any of
their respective affiliates or any successor thereto or that could, after
the Effective Time, limit or restrict Pfizer or any of its affiliates
(including the Surviving Corporation) or any successor thereto, from
engaging or competing in any line of business or in any geographic area
which agreements or arrangements, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect on Pfizer and its
Subsidiaries (including the Surviving Corporation and its Subsidiaries),
taken together, after giving effect to the Merger.
(l) No Related Actions. Pfizer will not, and will not permit
any of its Subsidiaries to, agree or commit to do any of the foregoing.
4.2 COVENANTS OF ▇▇▇▇▇▇-▇▇▇▇▇▇▇. During the period from the
date of this Agreement and continuing until the Effective Time, ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ agrees as to itself and its Subsidiaries that (except as expressly
contemplated or permitted by this Agreement, the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Disclosure
Schedule or as required by a Governmental Entity of competent jurisdiction
or to the extent that Pfizer shall otherwise consent in writing, which
consent shall not be unreasonably withheld or delayed):
(a) Ordinary Course.
(i) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries shall carry on their
respective businesses in the usual, regular and ordinary course in all
material respects, in substantially the same manner as heretofore
conducted, and shall use all reasonable efforts to preserve intact
their present lines of business, maintain their rights and franchises
and preserve their relationships with customers, suppliers and others
having business dealings with them to the end that their ongoing
businesses shall not be impaired in any material respect at the
Effective Time; provided, however, that no action by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or
its Subsidiaries with respect to matters specifically addressed by any
other provision of this Section 4.2 shall be deemed a breach of this
Section 4.2(a)(i) unless such action would constitute a breach of one
or more of such other provisions.
(ii) Other than in connection with acquisitions permitted by
Section 4.2(e), ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall not, and shall not permit any of
its Subsidiaries to, (A) enter into any licensing agreement, except
for those licensing agreements set forth on Section 4.2(a)(ii) of the
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Disclosure Schedule and any such licensing agreements
related to the ▇▇▇▇▇▇, Tetra, Capsugel or ▇▇▇▇▇ divisions of ▇▇▇▇▇▇-
▇▇▇▇▇▇▇; (B) enter into any new material line of business; (C) incur
or commit to any capital expenditures or any obligations or
liabilities in connection therewith other than Permitted Capital
Expenditures (as defined below) and obligations or liabilities in
connection therewith, or (D) with respect to the pharmaceutical and
consumer healthcare businesses (except ▇▇▇▇▇▇, Tetra, and Capsugel),
enter into any contract, agreement or other arrangement for the sale
of inventories or for the furnishing of services by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or
any of its Subsidiaries which contract, agreement or other arrangement
involves expenditures in excess of $10 million or which may give rise
to commitments which may extend beyond twelve months from the date of
such contract, agreement or arrangement, unless such contract,
agreement or arrangement can be terminated by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or its
Subsidiary, as the case may be, by giving less than 60 days' notice
and without incurring an obligation to pay any material premium or
penalty or suffering any other material detriment. As used herein, a
"Permitted Capital Expenditure" is a capital expenditure which (i) is
set forth on a Capital Expenditure Schedule to be delivered by ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ to Pfizer on or prior to February 28, 2000 to the extent it is
approved by Pfizer (which approval will not be unreasonably withheld
by Pfizer) or (ii) is (A) less than $10 million in the case of any
single expenditure or related series of expenditures and (B) $100
million in the aggregate for all capital expenditures incurred
pursuant to this clause (ii) and not clause (i). ▇▇▇▇▇▇-▇▇▇▇▇▇▇ will
deliver to Pfizer on a quarterly basis a schedule of actual capital
expenditures made.
(b) Dividends; Changes in Share Capital. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall
not, and shall not permit any of its Subsidiaries to, and shall not propose
to, (i) declare or pay any dividends on or make other distributions in
respect of any of its capital stock, except (A) the declaration and payment
of regular quarterly cash dividends not in excess of $.24 per share of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock with usual record and payment dates for such
dividends in accordance with past dividend practice and (B) for dividends
by wholly owned Subsidiaries of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, (ii) split, combine or
reclassify any of its capital stock or issue or authorize or propose the
issuance of any other securities in respect of, in lieu of or in
substitution for, shares of its capital stock, except for any such
transaction by a wholly owned Subsidiary of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ which remains a
wholly owned Subsidiary after consummation of such transaction, or
(iii) repurchase, redeem or otherwise acquire any shares of its capital
stock or any securities convertible into or exercisable for any shares of
its capital stock except for the purchase from time to time by ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock (and the associated ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Rights) in the ordinary course of business consistent with past practice in
connection with the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Benefit Plans and except for the
redemption or exchange of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights in accordance with the
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights Agreement.
(c) Issuance of Securities. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall not, and shall
not permit any of its Subsidiaries to, issue, deliver or sell, or authorize
or propose the issuance, delivery or sale of, any shares of its capital
stock of any class, any ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Voting Debt or any securities
convertible into or exercisable for, or any rights, warrants, calls or
options to acquire, any such shares or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Voting Debt, or enter
into any commitment, arrangement, undertaking or agreement with respect to
any of the foregoing, other than (i) the issuance of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common
Stock (and the associated ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights) upon the exercise of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Options or in connection with other stock-based
benefits plans outstanding on the date hereof, in each case in accordance
with their present terms or pursuant to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Options or
other stock based awards granted pursuant to clause (iii) below,
(ii) issuances by a wholly owned Subsidiary of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ of capital
stock to such Subsidiary's parent or another wholly owned subsidiary of
▇▇▇▇▇▇-▇▇▇▇▇▇▇, (iii) the granting of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Options or other
stock based awards to acquire shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock granted
under stock based benefit plans outstanding on the date hereof in the
ordinary course of business consistent with past practice not in excess of
the amounts set forth in Section 4.2(c) of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Disclosure
Schedule, (iv) pursuant to acquisitions set forth on the ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Disclosure Schedule or the financings therefor or (v) issuances in
accordance with the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights Agreement.
(d) Governing Documents. Except to the extent required to
comply with its obligations hereunder or with applicable law, ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ shall not amend or propose to so amend its respective certificates
of incorporation, bylaws or other governing documents.
(e) No Acquisitions. Other than (i) acquisitions disclosed on
the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Disclosure Schedule and (ii) acquisitions for cash in
existing or related lines of business of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its
Subsidiaries, the fair market value of the total consideration (including
the value of indebtedness acquired or assumed) for which does not exceed
$25 million for any individual acquisition, or $100 million in the
aggregate for all such acquisitions, and none of which acquisitions
referred to in this clause (ii) presents a material risk of making it more
difficult to obtain any approval or authorization required in connection
with the Merger under Regulatory Laws, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall not, and shall
not permit any of its Subsidiaries to, acquire or agree to acquire by
merging or consolidating with, or by purchasing a substantial equity
interest in or a substantial portion of the assets of, or by any other
manner, any business (including by acquisition of assets) or any
corporation, partnership, association or other business organization or
division thereof; provided, however, that the foregoing shall not prohibit
(x) internal reorganizations or consolidations involving existing
Subsidiaries of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or (y) the creation of new Subsidiaries of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ organized to conduct or continue activities otherwise
permitted by this Agreement.
(f) No Dispositions. Other than (i) internal reorganizations or
consolidations involving existing Subsidiaries of ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
(ii) dispositions referred to in ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports filed prior to
the date of this Agreement or (iii) as may be required by or in conformance
with law or regulation in order to permit or facilitate the consummation of
the transactions contemplated hereby or the transactions disclosed in the
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Disclosure Schedule, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall not, and shall not
permit any of its Subsidiaries to, sell, lease or otherwise dispose of, or
agree to sell, lease or otherwise dispose of, any of its assets (including
capital stock of Subsidiaries of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ but excluding inventory in
the ordinary course of business), if the fair market value of the total
consideration (including the value of the indebtedness acquired or assumed)
therefor exceeds $25 million for any individual disposition, or $100
million in the aggregate for all such dispositions.
(g) Investments; Indebtedness. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall not, and
shall not permit any of its Subsidiaries to, other than in connection with
actions permitted by Section 4.2(e) and except for any indebtedness
incurred by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or its Subsidiaries to finance or refinance
amounts due pursuant to Article VII of the Agreement and Plan of Merger,
dated as of November 3, 1999, among American Home Products Corporation,
Wolverine Sub Corp. and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ (the "AHP Merger Agreement"),
(i) make any loans, advances or capital contributions to, or investments
in, any other Person, other than (x) by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or a Subsidiary of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ to or in ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any Subsidiary of ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
(y) pursuant to any contract or other legal obligation of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or
any of its Subsidiaries existing at the date of this Agreement or (z) in
the ordinary course of business consistent with past practice in an
aggregate amount not in excess of $250 million in the aggregate (provided
that none of such transactions referred to in this clause (z) presents a
material risk of making it more difficult to obtain any approval or
authorization required in connection with the Merger under Regulatory Laws)
or (ii) create, incur, assume or suffer to exist any indebtedness,
issuances of debt securities, guarantees, loans or advances not in
existence as of the date of this Agreement except pursuant to the credit
facilities, indentures and other arrangements in existence on the date of
this Agreement or in the ordinary course of business consistent with past
practice, in each case as such credit facilities, indentures and other
arrangements and other existing indebtedness may be amended, extended,
modified, refunded, renewed or refinanced after the date of this Agreement.
(h) Pooling; Tax-Free Qualification. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall use
its reasonable best efforts not to, and shall use its reasonable best
efforts not to permit any of its Subsidiaries to, take any action
(including any action otherwise permitted by this Section 4.2) that would
prevent or impede the Merger from qualifying as a "pooling of interests"
for accounting purposes or as a "reorganization" under Section 368 of the
Code.
(i) Compensation. Other than as contemplated by Section 5.6 or
by Sections 4.2(c) or 4.2(i) of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Disclosure Schedule,
▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall not increase the amount of compensation of any
director, executive officer or employee, make any increase in or commitment
to increase any employee benefits, issue any additional ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Stock Options, adopt or make any commitment to adopt any additional
employee benefit plan or make any contribution, other than regularly
scheduled contributions, to any ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Benefit Plan and, in the
case of any of the foregoing, except in the ordinary course of business
consistent with past practice or as required by an existing agreement.
(j) Accounting Methods; Income Tax Elections. Except as
disclosed in ▇▇▇▇▇▇-▇▇▇▇▇▇▇ SEC Reports filed prior to the date of this
Agreement, or as required by a Governmental Entity, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall
not change its methods of accounting in effect at December 31, 1998, except
as required by changes in GAAP as concurred in by ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇
independent public accountants. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall not (i) change its
fiscal year or (ii) make any material tax election, other than in the
ordinary course of business consistent with past practice.
(k) Certain Agreements. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall not, and shall not
permit any of its Subsidiaries to, enter into any agreements or
arrangements that limit or otherwise restrict ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of its
Subsidiaries or any of their respective affiliates or any successor
thereto, or that could, after the Effective Time, limit or restrict Pfizer
or any of its affiliates (including the Surviving Corporation) or any
successor thereto, from engaging or competing in any line of business or in
any geographic area which agreements or arrangements, individually or in
the aggregate, would reasonably be expected to have a Material Adverse
Effect on Pfizer and its Subsidiaries (including the Surviving Corporation
and its Subsidiaries), taken together, after giving effect to the Merger.
(l) No Related Actions. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ will not, and will not
permit any of its Subsidiaries to, agree or commit to any of the foregoing.
4.3 GOVERNMENTAL FILINGS. Each party shall (a) confer on a
regular and frequent basis with the other and (b) report to the other (to
the extent permitted by law or regulation or any applicable confidentiality
agreement) on operational matters. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and Pfizer shall file
all reports required to be filed by each of them with the SEC (and all
other Governmental Entities) between the date of this Agreement and the
Effective Time and shall (to the extent permitted by law or regulation or
any applicable confidentiality agreement) deliver to the other party copies
of all such reports, announcements and publications promptly after the same
are filed.
4.4 CONTROL OF OTHER PARTY'S BUSINESS. Nothing contained in
this Agreement shall give ▇▇▇▇▇▇-▇▇▇▇▇▇▇, directly or indirectly, the right
to control or direct Pfizer's operations prior to the Effective Time.
Nothing contained in this Agreement shall give Pfizer, directly or
indirectly, the right to control or direct ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ operations
prior to the Effective Time. Prior to the Effective Time, each of ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ and Pfizer shall exercise, consistent with the terms and conditions
of this Agreement, complete control and supervision over its respective
operations.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 PREPARATION OF PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(a) As promptly as reasonably practicable following the date hereof,
Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall prepare and file with the SEC mutually
acceptable proxy materials which shall constitute the Joint Proxy
Statement/Prospectus (such proxy statement/prospectus, and any amendments
or supplements thereto, the "Joint Proxy Statement/Prospectus") and Pfizer
shall prepare and file a registration statement on Form S-4 with respect to
the issuance of Pfizer Common Stock in the Merger (the "Form S-4"). The
Joint Proxy Statement/Prospectus will be included in and will constitute a
part of the Form S-4 as Pfizer's prospectus. The Form S-4 and the Joint
Proxy Statement/Prospectus 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. Each of Pfizer and ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ shall use reasonable best efforts to have the Form S-4 declared
effective by the SEC and to keep the Form S-4 effective as long as is
necessary to consummate the Merger and the transactions contemplated
thereby. Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 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 Joint
Proxy Statement/Prospectus received from the SEC. Pfizer will provide
▇▇▇▇▇▇-▇▇▇▇▇▇▇ with a reasonable opportunity to review and comment on any
amendment or supplement to the Form S-4 prior to filing such with the SEC,
and will provide ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 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
Joint Proxy Statement/Prospectus or the Form S-4 shall be made without the
approval of both parties, which approval shall not be unreasonably withheld
or delayed; provided, that with respect to documents filed by a party which
are incorporated by reference in the Form S-4 or Joint Proxy
Statement/Prospectus, 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 Pfizer, in
connection with a Change in the Pfizer Recommendation, and ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
in connection with a Change in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Recommendation, may amend
or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including
by incorporation by reference) pursuant to a Qualifying Amendment (as
defined below) to effect such a Change, and in such event, 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
shall be subject to the right of each party to have its Board of Directors'
deliberations and conclusions to be accurately described. A "Qualifying
Amendment" means an amendment or supplement to the Joint Proxy
Statement/Prospectus or Form S-4 (including by incorporation by reference)
to the extent it contains (i) a Change in the Pfizer Recommendation or a
Change in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Recommendation (as the case may be), (ii) a
statement of the reasons of the Board of Directors of Pfizer or ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ (as the case may be) for making such Change in the Pfizer
Recommendation or Change in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Recommendation (as the case
may be) and (iii) additional information reasonably related to the
foregoing. Pfizer will use reasonable best efforts to cause the Joint
Proxy Statements/Prospectus to be mailed to Pfizer stockholders, and
▇▇▇▇▇▇-▇▇▇▇▇▇▇ will use reasonable best efforts to cause the Joint Proxy
Statement/Prospectus to be mailed to ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ stockholders, in each
case after the Form S-4 is declared effective under the Securities Act.
Pfizer 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 Share Issuance and ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ shall furnish all information concerning ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and the
holders of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock as may be reasonably requested in
connection with any such action. Each party will advise the other party,
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 Pfizer Common Stock issuable in connection with the
Merger for offering or sale in any jurisdiction, or any request by the SEC
for amendment of the Joint Proxy Statement/Prospectus or the Form S-4. If
at any time prior to the Effective Time any information relating to Pfizer
or ▇▇▇▇▇▇-▇▇▇▇▇▇▇, or any of their respective affiliates, officers or
directors, should be discovered by Pfizer or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ which should be
set forth in an amendment or supplement to any of the Form S-4 or the Joint
Proxy Statement/Prospectus 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 Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇.
(b) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall duly take (subject to compliance with
the provisions of Section 3.1(e) and Section 3.2(e) (provided that ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ shall have used reasonable best efforts to ensure that such
representations are true and correct)) all lawful action to call, give
notice of, convene and hold a meeting of its stockholders on a date as soon
as reasonably practicable (the "▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stockholders Meeting") for
the purpose of obtaining the Required ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Vote with respect to
the transactions contemplated by this Agreement and shall take all lawful
action to solicit the adoption of this Agreement by the Required ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Vote; and the Board of Directors of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall recommend
adoption of this Agreement by the stockholders of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ to the
effect as set forth in Section 3.2(f) (the "▇▇▇▇▇▇-▇▇▇▇▇▇▇
Recommendation"), and shall not withdraw, modify or qualify (or propose to
withdraw, modify or qualify) (a "Change") in any manner adverse to Pfizer
such recommendation or take any action or make any statement in connection
with the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stockholders Meeting inconsistent with such
recommendation (collectively, a "Change in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Recommendation"); provided the foregoing shall not prohibit accurate
disclosure (and such disclosure shall not be deemed to be a Change in the
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Recommendation) of factual information regarding the
business, financial condition or results of operations of Pfizer or ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ 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 (provided, that the Board of Directors of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ does not
withdraw, modify or qualify (or propose to withdraw, modify or qualify) in
any manner adverse to Pfizer its recommendation) in the Form S-4 or the
Joint Proxy Statement/Prospectus or otherwise, to the extent such
information, facts, identity or terms is required to be disclosed under
applicable law; and, provided further, that the Board of Directors of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ may make a Change in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Recommendation
(x) pursuant to Section 5.5 hereof or (y) prior to the ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Stockholders Meeting if (i) the Board of Directors of ▇▇▇▇▇▇-▇▇▇▇▇▇▇
determines in good faith that a Material Adverse Effect has occurred with
respect to Pfizer and (ii) the Board of Directors of ▇▇▇▇▇▇-▇▇▇▇▇▇▇
determines in good faith that, by reason of its determination in clause (i)
the failure to effect such Change in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Recommendation
would create a substantial probability of violating the fiduciary duties of
the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Board of Directors under applicable law.
Notwithstanding any Change in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Recommendation, this
Agreement shall be submitted to the stockholders of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ at the
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stockholders Meeting for the purpose of adopting the
Agreement and approving the Merger; provided that this Agreement shall not
be required to be submitted to the stockholders of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ at the
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stockholders Meeting if this Agreement has been terminated
pursuant to Section 7.1 hereof.
(c) Pfizer shall duly take (subject to compliance with the
provisions of Section 3.2(e) and Section 3.1(e) (provided that Pfizer shall
have used reasonable best efforts to ensure that such representation is
true and correct)) all lawful action to call, give notice of, convene and
hold a meeting of its stockholders on a date as soon as reasonably
practicable (the "Pfizer Stockholders Meeting") for the purpose of
obtaining the Pfizer Stockholder Approval and shall take all lawful action
to solicit the approval of the Share Issuance and adoption of the Board
Amendment and the Board of Directors of Pfizer shall recommend approval of
the Share Issuance and adoption of the Board Amendment by the stockholders
of Pfizer to the effect as set forth in Section 3.1(f) (the "Pfizer
Recommendation"), and shall not Change in any manner adverse to ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ such recommendation or take any action or make any statement in
connection with the Pfizer Stockholders Meeting inconsistent with such
recommendation (collectively, a "Change in the Pfizer Recommendation");
provided the foregoing shall not prohibit accurate disclosure (and such
disclosure shall not be deemed to be a Change in the Pfizer Recommendation)
of factual information regarding the business, financial condition or
operations of Pfizer or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 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 (provided, that the Board of Directors
of Pfizer does not withdraw, modify or qualify (or propose to withdraw,
modify or qualify) in any manner adverse to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ its
recommendation) in the Form S-4 or the Joint Proxy Statement/Prospectus or
otherwise, to the extent such information, facts, identity or terms is
required to be disclosed under applicable law; and, provided, further, that
the Board of Directors of Pfizer may make a Change in the Pfizer
Recommendation (x) pursuant to Section 5.5 hereof or (y) prior to the
Pfizer Stockholders Meeting if (i) the Board of Directors of Pfizer
determines in good faith that a Material Adverse Effect has occurred with
respect to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and (ii) the Board of Directors of Pfizer
determines in good faith that, by reason of its determination in clause (i)
the failure to effect such Change in the Pfizer Recommendation would create
a substantial probability of violating the fiduciary duties of the Pfizer
Board of Directors under applicable law. Notwithstanding any Change in the
Pfizer Recommendation, a proposal to approve the Share Issuance and the
Board Amendment shall be submitted to the stockholders of Pfizer at the
Pfizer Stockholders Meeting for the purpose of obtaining the Pfizer
Stockholder Approval; provided that this Agreement shall not be required to
be submitted to the stockholders of Pfizer at the Pfizer Stockholders
Meeting if this Agreement has been terminated pursuant to Section 7.1
hereof.
(d) For purposes of this Agreement, a Change in the ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Recommendation shall be deemed to include, without limitation, a
recommendation by the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Board of Directors of a third party
Acquisition Proposal with respect to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and a Change in the
Pfizer Recommendation shall be deemed to include, without limitation, a
recommendation by the Pfizer Board of Directors of a third party
Acquisition Proposal with respect to Pfizer.
5.2 PFIZER BOARD OF DIRECTORS; EXECUTIVE OFFICERS; HEADQUARTERS;
▇▇▇▇▇▇-▇▇▇▇▇▇▇ NAME. (a) At or prior to the Effective Time, Pfizer will
use its reasonable best efforts to (i) reconstitute the board of directors
of Pfizer in accordance with Section 1.5(b), Section 1.6(b) and
Section 1.7, and (ii) reconstitute the committees of Board of Directors of
Pfizer in accordance with the letter referenced in Section 1.7. The
headquarters of Pfizer will remain in New York, New York and Pfizer will
maintain such other offices as provided in the letter referenced in Section
1.7.
(b) Following the Effective Time, Pfizer shall preserve and
perpetuate the names "▇▇▇▇▇▇-▇▇▇▇▇▇▇" and "▇▇▇▇▇-▇▇▇▇▇" as a divisional
name and a trade name, respectively, in accordance with the letter
referenced in Section 1.7.
5.3 ACCESS TO INFORMATION/EMPLOYEES. (a) Upon reasonable
notice, each party shall (and shall cause its Subsidiaries to) afford to
the officers, employees, accountants, counsel, financial advisors and other
representatives of the other party reasonable access during normal business
hours, during the period prior to the Effective Time, to all its
properties, books, contracts, commitments, records, officers and employees
and, during such period, such party shall (and shall cause its Subsidiaries
to) furnish promptly to the other party (a) a copy of each report,
schedule, registration statement and other document filed, published,
announced or received by it during such period pursuant to the requirements
of Federal or state securities laws, as applicable (other than documents
which such party is not permitted to disclose under applicable law), and
(b) all other information concerning it and its business, properties and
personnel as such other party may reasonably request (including
consultation on a regular basis with respect to litigation matters);
provided, however, that either party may restrict the foregoing access to
the extent that (i) any law, treaty, rule or regulation of any Governmental
Entity applicable to such party requires such party or its Subsidiaries to
restrict or prohibit access to any such properties or information or
(ii) the information is subject to confidentiality obligations to a third
party. Any such information obtained pursuant to this Section 5.3
("Confidential Information") will be used solely for the purpose of
consideration or performance of the transactions contemplated by this
Agreement or any other agreement related hereto and will be kept
confidential by the party obtaining such information and all persons
obtaining such information on such party's behalf or who obtain such
information from such party. Confidential Information shall not include
information that (A) is or becomes generally available to the public other
than as a result of disclosure by a party or its Representatives, or (B) is
or becomes available to a party (other than the disclosing party) or its
Representatives that is not known by the non-disclosing party to have any
obligation not to disclose such information. Notwithstanding the
foregoing, Confidential Information may be disclosed by a party (x) to its
directors, officers, employees, representatives (including, without
limitation, financial advisors, attorneys and accountants) or agents
(collectively "Representatives") who need to know such information if the
party informs such Representatives of the confidential nature of such
information and directs them to treat such information confidentially and
to use such information for no purpose other than as specifically permitted
by the Agreement and (y) if the party is legally required to make such
disclosure as a result of a court order, subpoena or similar legal duress,
provided that prior to such disclosure, the disclosing party gives to the
other party prompt written notice of its receipt of such order or subpoena
or similar document so that the other party has a reasonable opportunity
prior to disclosure to obtain a protective order (if disclosure of
Confidential Information is so required, the disclosing party shall
disclose only that portion of such information that is so required and
shall assist the other party in obtaining protective orders or undertakings
that confidential treatment will be accorded to any such information
furnished). In the event of termination of this Agreement, each party will
promptly return to the other party all Confidential Information in its
possession (including all written materials prepared or supplied by or on
its behalf containing or reflecting any Confidential Information) and will
not retain any copies, extracts or other reproductions in whole or in part
of any Confidential Information. Any work papers, memoranda or other
writings prepared by a party or its Representatives derived from or
incorporating any Confidential Information shall be destroyed promptly upon
termination of this Agreement, with such destruction confirmed to the other
party in writing. Any oral Confidential Information will continue to be
subject to the terms of this Section 5.3. Each party shall be responsible
for the breach of the terms of this Section 5.3 by its Representative. Any
investigation by Pfizer or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall not affect the
representation and warranties of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and Pfizer, as the case may
be.
(b) After the date hereof Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall
establish a mechanism reasonably acceptable to both parties by which Pfizer
will be permitted, prior to the Effective Time and subject to applicable
law, to communicate directly with ▇▇▇▇▇▇-▇▇▇▇▇▇▇ employees regarding
employee related matters after the Effective Time.
5.4 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 as promptly as practicable 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, 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, 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 an
appropriate filing of a Notification and Report Form pursuant to the HSR
Act and any other Regulatory Law (as defined below) with respect to the
transactions contemplated hereby as promptly as practicable after the date
hereof and to 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 necessary to cause
the expiration or termination of the applicable waiting periods under the
HSR Act as soon as practicable. Nothing in this Agreement shall require
any of Pfizer and its Subsidiaries or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries
to sell, hold separate or otherwise dispose of or conduct their business in
a specified manner, or agree to sell, hold separate or otherwise dispose of
or conduct their business in a specified manner, or permit the sale,
holding separate or other disposition of, any assets of Pfizer, ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ or their respective Subsidiaries or the conduct of their business
in a specified manner, whether as a condition to obtaining any approval
from a Governmental Entity or any other Person or for any other reason, if
such sale, holding separate or other disposition or the conduct of their
business in a specified manner is not conditioned on the Closing or, in the
aggregate, would reasonably be expected to have a Material Adverse Effect
on Pfizer and its Subsidiaries (including the Surviving Corporation and its
Subsidiaries), taken together, after giving effect to the Merger.
(b) Each of Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall, in connection with
the efforts referenced in Section 5.4(a) obtain all requisite material
approvals 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, and (iii) permit the
other party 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, and to the extent appropriate or
permitted by the DOJ, the FTC or such other applicable Governmental Entity
or other Person, give the other party the opportunity to attend and
participate in such meetings and conferences. For purposes of this
Agreement, "Regulatory Law" means the ▇▇▇▇▇▇▇ Act, as amended, Council
Regulation No. 4064/89 of the European Community, as amended (the "EC
Merger Regulation") the ▇▇▇▇▇▇▇ Act, as amended, the HSR Act, the Federal
Trade Commission Act, as amended, 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.
(c) Subject to the terms and conditions of this Agreement, in
furtherance and not in limitation of the covenants of the parties contained
in Sections 5.4(a) and 5.4(b), if any administrative or judicial action or
proceeding, including any proceeding by a private party, is instituted (or
threatened to be instituted) challenging any transaction contemplated by
this Agreement as violative of any Regulatory Law, each of Pfizer and
▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall cooperate in all respects with each other and use its
respective reasonable best efforts, including without limitation, selling,
holding separate or otherwise disposing of or conducting their business in
a specified manner, or agreeing to sell, hold separate or otherwise dispose
of or conduct their business in a specified manner or permitting the sale,
holding separate or other disposition of, any assets of Pfizer, ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ or their respective Subsidiaries or the conducting of their
business in a specified manner, in order to contest and resist any such
action or proceeding and to have vacated, lifted, reversed or overturned
any decree, judgment, injunction or other order, whether temporary,
preliminary or permanent, that is in effect and that prohibits, prevents or
restricts consummation of the transactions contemplated by this Agreement.
Notwithstanding the foregoing or any other provision of this Agreement,
nothing in this Section 5.4 shall limit a party's right to terminate this
Agreement pursuant to Article VII; provided that the foregoing is subject
in all respects to the last sentence of Section 5.4(a).
(d) If any objections are asserted with respect to the
transactions contemplated hereby under any Regulatory Law or if any suit 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 Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall use its reasonable best efforts 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.
5.5 ACQUISITION PROPOSALS. Without limitation on any of such
party's other obligations under this Agreement (including under Article IV
hereof), each of Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ agrees that neither it nor any
of its Subsidiaries nor any of the officers and directors of it or its
Subsidiaries shall, and that it shall use its reasonable best efforts to
cause its and its Subsidiaries' employees, agents and representatives
(including any investment banker, attorney or accountant retained by it or
any of its Subsidiaries) not to, directly or indirectly, initiate, solicit,
encourage or knowingly facilitate (including by way of furnishing
information) any inquiries or the making of any proposal or offer with
respect to a merger, reorganization, share exchange, consolidation,
business combination, recapitalization, liquidation, dissolution or similar
transaction involving it, or any purchase or sale of the consolidated
assets (including without limitation stock of Subsidiaries) of such party
and its Subsidiaries, taken as a whole, having an aggregate value equal to
10% or more of the market capitalization of such party, or any purchase or
sale of, or tender or exchange offer for, 10% or more of the equity
securities of such party (any such proposal or offer (other than a proposal
or offer made by the other party or an affiliate thereof) being hereinafter
referred to as an "Acquisition Proposal"). Each of Pfizer and ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ further agrees that neither it nor any of its Subsidiaries nor any
of the officers and directors of it or its Subsidiaries shall, and that it
shall use its reasonable best efforts to cause its and its Subsidiaries'
employees, agents and representatives (including any investment banker,
attorney or accountant retained by it or any of its Subsidiaries) not to,
directly or indirectly, have any discussion with or provide any
confidential information or data to any Person relating to an Acquisition
Proposal, or engage in any negotiations concerning an Acquisition Proposal,
or knowingly facilitate any effort or attempt to make or implement an
Acquisition Proposal or accept an Acquisition Proposal. Notwithstanding
anything in this Agreement to the contrary, each of Pfizer and ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ or its respective Board of Directors shall be permitted to (A) to
the extent applicable, comply with Rule 14d-9 and Rule 14e-2 promulgated
under the Exchange Act with regard to an Acquisition Proposal, (B) effect a
Change in the Pfizer or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Recommendation, as the case may be,
or (C) engage in any discussions or negotiations with, or provide any
information to, any Person in response to an unsolicited bona fide written
Acquisition Proposal by any such Person, if and only to the extent that, in
any such case as is referred to in clause (B) or (C), (i) its Stockholders
Meeting shall not have occurred, (ii) (x) in the case of clause (B) above
such change is permitted by clause (y) of the second proviso of the first
sentence of Section 5.1(b) or Section 5.1(c), as the case may be, or it has
received an unsolicited bona fide written Acquisition Proposal from a third
party and its Board of Directors concludes in good faith that such
Acquisition Proposal constitutes a Superior Proposal (as defined in Section
8.11) and (y) in the case of clause (C) above, its Board of Directors
concludes in good faith that there is a reasonable likelihood that such
Acquisition Proposal could result in a Superior Proposal, (iii) prior to
providing any information or data to any Person in connection with an
Acquisition Proposal by any such Person, its Board of Directors receives
from such Person an executed confidentiality agreement containing terms at
least as stringent as those contained in Section 5.3 and (iv) prior to
providing any information or data to any Person or entering into
discussions or negotiations with any Person, such party notifies the other
party promptly of such inquiries, proposals or offers received by, any such
information requested from, or any such discussions or negotiations sought
to be initiated or continued with, any of its representatives indicating,
in connection with such notice, the name of such Person and the material
terms and conditions of any inquiries, proposals or offers. Each of Pfizer
and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ agrees that it will promptly keep the other party
informed of the status and terms of any such proposals or offers and the
status and terms of any such discussions or negotiations. Each of Pfizer
and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ agrees that it will, and will cause its officers,
directors and representatives to, immediately cease and cause to be
terminated any activities, discussions or negotiations existing as of the
date of this Agreement with any parties conducted heretofore with respect
to any Acquisition Proposal. Each of Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ agrees that
it will use reasonable best efforts to promptly inform its directors,
officers, key employees, agents and representatives of the obligations
undertaken in this Section 5.5. Nothing in this Section 5.5 shall
(x) permit Pfizer or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ to terminate this Agreement (except as
specifically provided in Article VII hereof) or (y) affect any other
obligation of Pfizer or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ under this Agreement.
5.6 EMPLOYEE BENEFITS MATTERS. (a) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees
(US). Following the Effective Time, Pfizer shall comply with the terms of,
or cause the Surviving Corporation to comply with the terms of, all ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Benefit Plans and related funding arrangements in accordance with
their respective terms. Nothing herein shall require Pfizer to continue
any particular Benefit Plan or prevent the amendment or termination
thereof; provided, however, that Pfizer shall not take any action (by way
of amendment, termination or otherwise) which is in violation of the terms
of any Benefit Plan or applicable law. Subject to the first two sentences
of this Section 5.6(a), from and after the Effective Time until the first
anniversary of the Effective Time, Pfizer shall provide compensation and
employee benefits under Benefit Plans (as defined in Section 8.11) to the
employees and former employees of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries who
are employed in the United States (including Puerto Rico) and employees
designated by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ as "foreign service colleagues" (the "▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Employees (US)") that are substantially comparable in the aggregate
to those provided to such persons pursuant to the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Benefit
Plans in effect immediately prior to the date hereof. The term "▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Employees (US)" shall not include ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees (Non-US)
or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees (Collective Bargaining Units). With respect to
any Benefit Plans in which any ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees (US) first become
eligible to participate, on or after the Effective Time, Pfizer shall:
(A) waive all pre-existing conditions exclusions and waiting periods with
respect to participation and coverage requirements applicable to ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Employees (US) under any Pfizer plans in which such employees may
be eligible to participate after the Effective Time, except to the extent
that such pre-existing conditions exclusions or waiting periods apply to
changes made by the employee under the terms of the Pfizer plans on the
same basis as would apply to a Pfizer employee making a similar change;
(B) provide each ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employee (US) with credit for any co-
payments and deductibles paid prior to the Effective Time (to the same
extent such credit was given under the analogous Benefit Plan prior to the
Effective Time) in satisfying any applicable deductible or out-of-pocket
requirements under any Pfizer plans in which such employees may be eligible
to participate after the Effective Time; and (C) recognize all service of
the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees (US) with ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries
for all purposes (including, without limitation, purposes of eligibility to
participate, vesting credit, entitlement to benefits, and benefit accrual)
in any Pfizer plan in which such employees may be eligible to participate
after the Effective Time, to the extent such service is taken into account
under the applicable Pfizer plan; provided, that the foregoing shall not
apply to the extent it would result in duplication of benefits under
multiple plans or would result in benefit accruals under multiple defined
benefit pension plans with respect to the same period of service without
offset for benefits accrued under a predecessor defined benefit pension
plan. ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ board of directors will not declare an "other
circumstance" to have occurred within the meaning of Section 4.2(y) of
▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ Enhanced Severance Plan. During the period from the date
of this Agreement and continuing until the Effective Time, ▇▇▇▇▇▇-▇▇▇▇▇▇▇
agrees as to itself and its Subsidiaries that neither ▇▇▇▇▇▇-▇▇▇▇▇▇▇ nor
any of its Subsidiaries shall take or cause to be taken any action that
would constitute an "Activation Event" (as defined in Section 4.2 of
▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ Enhanced Severance Plan), other than in the ordinary
course of business.
(b) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees (Non-US). From and after the
Effective Time until the first anniversary of the Effective Time, Pfizer
shall provide compensation and employee benefits to the employees and
former employees of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries who are employed
outside the United States (other than any such employee who is a ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Employee (US)) ("▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees (Non-US)") that are
substantially comparable in the aggregate to those provided to such persons
immediately prior to the date hereof, subject to: such modifications as are
necessary to comply with applicable laws of the foreign countries and their
political subdivisions; and applicable labor agreements. Nothing herein
shall serve to extend any benefits under any plans maintained for the
benefit of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees (US) to any person who is not a ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Employee (US). The term ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees (Non-US) shall
not include ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees (US) or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees
(Collective Bargaining Units).
(c) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees (Collective Bargaining Units). The
terms and conditions of employment of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ employees and former
employees who are covered by the Agreement between ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Company and the International Union of Operating Engineers, ▇▇▇▇▇
▇▇▇-▇, ▇, ▇, ▇, ▇ ▇▇▇▇-▇▇▇, dated April 1, 1998 or the Agreement between
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Company and the Paper, Allied-Industrial, Chemical and
Energy Workers International Union, AFL- CIO and its Local Union No. 2-670,
dated May 1, 1999 or any other collective bargaining agreements between
▇▇▇▇▇▇-▇▇▇▇▇▇▇ or its Subsidiaries and any other collective bargaining unit
("▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees (Collective Bargaining Units)"), are contained,
and shall be as explicitly set forth, in such agreements. The term ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Employees (Collective Bargaining Units) shall not include ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Employees (US) or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employees (Non-US).
5.7 FEES AND EXPENSES. Subject to Section 5.15 and Section
7.2, 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 (a) 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 ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or its Subsidiaries and (b) Expenses incurred in
connection with the filing, printing and mailing of the Joint Proxy
Statement/Prospectus, which shall be paid by Pfizer. As used in this
Agreement, "Expenses" includes all out-of-pocket expenses (including,
without limitation, all fees and expenses of counsel, accountants,
investment bankers, experts and consultants to a party hereto and its
affiliates) incurred by a party or on its behalf in connection with or
related to the authorization, preparation, negotiation, execution and
performance of this Agreement and the transactions contemplated hereby,
including the preparation, printing, filing and mailing of the Joint Proxy
Statement/Prospectus and the solicitation of stockholder approvals and all
other matters related to the transactions contemplated hereby.
5.8 DIRECTORS' AND OFFICERS' INDEMNIFICATION AND INSURANCE. The
Surviving Corporation shall, and Pfizer shall cause the Surviving
Corporation to, (i) indemnify and hold harmless, and provide advancement of
expenses to, all past and present directors, officers and employees of
▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries (in all of their capacities) (a) to the
same extent such persons are indemnified or have the right to advancement
of expenses as of the date of this Agreement by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ pursuant to
▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ certificate of incorporation, bylaws and indemnification
agreements, if any, in existence on the date hereof with any directors,
officers and employees of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries and
(b) without limitation to clause (a), to the fullest extent permitted by
law, in each case for acts or omissions occurring at or prior to the
Effective Time (including for acts or omissions occurring in connection
with the approval of this Agreement and the consummation of the
transactions contemplated hereby), (ii) 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 years after the Effective
Time, the current provisions regarding elimination of liability of
directors, indemnification of officers, directors and employees and
advancement of expenses contained in the certificate of incorporation and
bylaws of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and (iii) cause to be maintained for a period of
six years after the Effective Time the current policies of directors' and
officers' liability insurance and fiduciary liability insurance maintained
by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ (provided that the Surviving Corporation (or any
successor) may substitute therefor policies of at least the same coverage
and amounts containing terms and conditions which are, in the aggregate, no
less advantageous to the insured) with respect to claims arising from facts
or events that occurred on or before the Effective Time. The obligations
of the Surviving Corporation under this Section 5.8 shall not be terminated
or modified in such a manner as to adversely affect any indemnitee to whom
this Section 5.8 applies without the consent of such affected indemnitee
(it being expressly agreed that the indemnitees to whom this Section 5.8
applies shall be third party beneficiaries of this Section 5.8).
5.9 PUBLIC ANNOUNCEMENTS. Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall use
reasonable best efforts to develop a joint communications plan and each
party shall use reasonable best efforts (i) to ensure that all press
releases and other public statements with respect to the transactions
contemplated hereby shall be consistent with such joint communications
plan, and (ii) unless otherwise required by applicable law or by
obligations pursuant to any listing agreement with or rules of any
securities exchange, to consult with each other before issuing any press
release or, to the extent practical, otherwise making any public statement
with respect to this Agreement or the transactions contemplated hereby. In
addition to the foregoing, except to the extent disclosed in or consistent
with the Joint Proxy Statement/Prospectus in accordance with the provisions
of Section 5.1, neither Pfizer nor ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall issue any press
release or otherwise make any public statement or disclosure concerning the
other party or the other party's business, financial condition or results
of operations without the consent of the other party, which consent shall
not be unreasonably withheld or delayed.
5.10 ACCOUNTANT'S LETTERS. (a) Pfizer shall use reasonable best
efforts to cause to be delivered to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ two letters from
Pfizer's independent public accountants, one dated approximately the date
on which the Form S-4 shall become effective and one dated the Closing
Date, each addressed to Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇, in form reasonably
satisfactory to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and customary in scope for comfort letters
delivered by independent public accountants in connection with registration
statements similar to the Form S-4. Pfizer shall use reasonable best
efforts to cause to be delivered to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ a copy of a letter from
Pfizer's independent accountants, dated approximately the date the Form S-4
is declared effective and as of the Closing Date, stating that accounting
for the Merger as a pooling-of-interests under Opinion 16 of the Accounting
Principles Board and applicable SEC rules and regulations is appropriate if
the Merger is closed and consummated as contemplated by this Agreement.
(b) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall use reasonable best efforts to cause to
be delivered to Pfizer two letters from ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ independent public
accountants, one dated approximately the date on which the Form S-4 shall
become effective and one dated the Closing Date, each addressed to ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ and Pfizer, in form reasonably satisfactory to Pfizer and customary
in scope for comfort letters delivered by independent public accountants in
connection with registration statements similar to the Form S-4. ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ shall use reasonable best efforts to cause to be delivered to
Pfizer a copy of a letter from ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ independent public
accountants, addressed to ▇▇▇▇▇▇-▇▇▇▇▇▇▇, dated approximately the date the
Form S-4 is declared effective and as of the Closing Date, stating that
they concur with ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ conclusion that, as of the date of their
report, no conditions exist that would preclude ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ ability to
be a party in a business combination to be accounted for as a pooling-of-
interests.
(c) Following execution of this Agreement, each of Pfizer and
▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall use reasonable best efforts to cause the transactions
contemplated by this Agreement, including the Merger, to be accounted for
as a pooling-of-interests under Opinion 16 of the Accounting Principles
Board and applicable SEC rules and regulations, and such accounting
treatment to be accepted by the SEC.
5.11 LISTING OF SHARES OF PFIZER COMMON STOCK. Pfizer shall use
its reasonable best efforts to cause the shares of Pfizer Common Stock to
be issued in the Merger and the shares of Pfizer Common Stock to be
reserved for issuance upon exercise of the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Stock Options to
be approved for listing on the NYSE, subject to official notice of
issuance, prior to the Closing Date.
5.12 DIVIDENDS. After the date of this Agreement, each of Pfizer
and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall coordinate with the other the payment of dividends
with respect to the Pfizer Common Stock and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock and
the record dates and payment dates relating thereto, it being the intention
of the parties hereto that holders of Pfizer Common Stock and ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Common Stock shall not receive two dividends, or fail to receive
one dividend, for any single calendar quarter with respect to their shares
of Pfizer Common Stock and/or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock or any shares of
Pfizer Common Stock that any such holder receives in exchange for such
shares of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock in the Merger.
5.13 AFFILIATES. (a) Not less than 45 days prior to the
Effective Time, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall deliver to Pfizer a letter identifying
all persons who, in the judgment of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, may be deemed at the
time this Agreement is submitted for adoption by the stockholders of
▇▇▇▇▇▇-▇▇▇▇▇▇▇, "affiliates" of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ for purposes of Rule 145
under the Securities Act or for purposes of qualifying the Merger for
pooling-of-interests accounting treatment under Opinion 16 of the
Accounting Principles Board and applicable SEC rules and regulations, and
such list shall be updated as necessary to reflect changes from the date
thereof. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall use reasonable best efforts to cause each
person identified on such list to deliver to Pfizer not less than 30 days
prior to the Effective Time, a written agreement substantially in the form
attached as Exhibit 5.13 hereto (an "Affiliate Agreement"). Not less than
45 days prior to the Effective Time, Pfizer shall deliver to ▇▇▇▇▇▇-▇▇▇▇▇▇▇
a letter identifying all persons who, in the judgment of Pfizer, may be
deemed "affiliates" of Pfizer for purposes of qualifying the Merger for
pooling-of-interests accounting treatment under Opinion 16 of the
Accounting Principles Board and applicable SEC rules and regulations, and
such list shall be updated as necessary to reflect changes from the date
hereof. Pfizer shall use reasonable best efforts to cause each person
identified on such list to deliver to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ not less than 30 days
prior to the Effective Time, a written agreement including the substance of
paragraphs 1(B) and 2 of Exhibit 5.13 hereto.
(b) Pfizer shall use its reasonable best efforts to publish no
later than 90 days after the end of the first month after the Effective
Time in which there are at least 30 days of post-Merger combined operations
(which month may be the month in which the Effective Time occurs), combined
sales and net income figures as contemplated by and in accordance with the
terms of SEC Accounting Series Release No. 135.
5.14 SECTION 16 MATTERS. Prior to the Effective Time, Pfizer and
▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall take all such steps as may be required to cause any
dispositions of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock (including derivative
securities with respect to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock) or acquisitions of
Pfizer Common Stock (including derivative securities with respect to Pfizer
Common Stock) resulting from the transactions contemplated by Article I or
Article II of this Agreement by each individual who is subject to the
reporting requirements of Section 16(a) of the Exchange Act with respect to
▇▇▇▇▇▇-▇▇▇▇▇▇▇, to be exempt under Rule 16b-3 promulgated under the
Exchange Act, such steps to be taken in accordance with the No-Action
Letter dated January 12, 1999, issued by the SEC to Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP.
5.15 LIPITOR(REGISTERED TRADEMARK) ARRANGEMENTS. (a) In the event that this
Agreement is terminated under circumstances which constitute a ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Termination Event (as defined in this Section 5.15), then, upon termination of
this Agreement, Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall, and shall cause their
respective affiliates to, promptly enter into (i) the Third Amendment to the
Collaboration Agreement in the form of Exhibit 5.15(a) hereto, (ii) the Third
Amendment to the International Co- Promotion Agreement in the form of Exhibit
5.15(b) hereto, and (iii) the Letter Agreement relating to the
Norvasc(registered trademark)/Lipitor(registered trademark) combination product
in the form of Exhibit 5.15(c) hereto (collectively, the "Lipitor(registered
trademark) Agreements").
(b) In the event that (i) this Agreement is terminated under
circumstances which constitute a Pfizer Termination Event (as defined in
this Section 5.15), or (ii) the Merger is consummated, then in each case,
Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ (and their respective affiliates) shall not enter
into the Lipitorregistered trademark Agreements.
(c) In the event that this Agreement is terminated under
circumstances which constitute a Neutral Termination Event (as defined in
this Section 5.15), then Pfizer shall have the right for ten Business Days
following the date of termination of this Agreement (the "Election Period")
to notify ▇▇▇▇▇▇-▇▇▇▇▇▇▇ in writing (an "Election Notice") that Pfizer will
enter into the Lipitor(registered trademark) Agreements in accordance with
the following provisions. Promptly following receipt of such Election
Notice by ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall, and shall cause
their respective affiliates to, enter into the Lipitor(registered trademark)
Agreements and, concurrently with the execution and delivery of such
Lipitor Agreements by the parties thereto, Pfizer shall pay ▇▇▇▇▇▇-▇▇▇▇▇▇▇
a cash amount equal to $1.333 billion, such payment to be made by wire
transfer of immediately available funds. If ▇▇▇▇▇▇-▇▇▇▇▇▇▇ does not
receive an Election Notice from Pfizer during the Election Period, then
Pfizer's right to enter into the Lipitor(registered trademark) Agreements
pursuant to this Section 5.15 shall terminate and be of no further force
and effect.
(d) From the date hereof until the earlier of (i) the Effective
Time, (ii) termination of this Agreement in circumstances which constitute
a Pfizer Termination Event or (iii) expiration of the Election Period
without ▇▇▇▇▇▇-▇▇▇▇▇▇▇ receiving an Election Notice from Pfizer following
termination of this Agreement in circumstances which constitute a Neutral
Termination Event, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ agrees not to, and agrees that its
affiliates will not (i) exercise any rights under Section 14.02(a) and
Section 14.02(b) of the Collaboration Agreement to terminate such agreement
or (ii) exercise any rights under Section 14.02(a) and Section 14.02(b) of
the International Co-Promotion Agreement to terminate such agreement.
(e) A "▇▇▇▇▇▇-▇▇▇▇▇▇▇ Termination Event" shall mean (i) a
termination of this Agreement pursuant to Section 7.1(b) herein if, at the
time of termination, the closing conditions set forth in any of Section
6.2(a), Section 6.2(b) or Section 6.2(e) herein are not satisfied but all
other conditions set forth in Article VI shall be satisfied at such time,
(ii) a termination of this Agreement pursuant to Section 7.1(d) herein
(provided that the basis for termination is the failure of ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇
stockholders to adopt this Agreement and approve the Merger at a vote duly
taken) or, following a Change in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Recommendation by
reason of a Superior Proposal with respect to ▇▇▇▇▇▇-▇▇▇▇▇▇▇, a termination
of this Agreement pursuant to Section 7.1(e), unless, in either case, (A)
at the time of the event giving rise to the right of termination, a
Material Adverse Effect with respect to Pfizer or a Change in the Pfizer
Recommendation following the making of a proposal for a Business
Combination with respect to Pfizer has occurred, or (B) Pfizer's
stockholders have failed to approve the Share Issuance at a vote duly
taken, (iii) a termination by Pfizer of this Agreement pursuant to Section
7.1(g) herein, and (iv) a termination by ▇▇▇▇▇▇-▇▇▇▇▇▇▇ pursuant to Section
7.1(i) herein; provided that no ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Termination Event shall be
deemed to have occurred pursuant to any of the preceding clauses if, at the
time of termination, Pfizer shall be in breach of any of its
representations, warranties, covenants, obligations or agreements contained
in this Agreement which breach would entitle ▇▇▇▇▇▇-▇▇▇▇▇▇▇ to terminate
this Agreement pursuant to Section 7.1(g).
(f) A "Pfizer Termination Event" shall mean (i) a termination of
this Agreement pursuant to Section 7.1(b) herein if, at the time of
termination, the closing conditions set forth in any of Section 6.3(a) or
Section 6.3(b) herein are not satisfied but all other conditions set forth
in Article VI shall be satisfied at such time, (ii) a termination of this
Agreement pursuant to Section 7.1(d) herein (provided that the basis for
termination is the failure of Pfizer's stockholders to approve the Share
Issuance at a vote duly taken) or, following a Change in the Pfizer
Recommendation by reason of a Superior Proposal with respect to Pfizer, a
termination of this Agreement pursuant to Section 7.1(f), unless, in either
case, (A) at the time of the event giving rise to the right of termination,
a Material Adverse Effect with respect to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or a Change in the
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Recommendation following the making of a proposal for a
Business Combination with respect to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ has occurred, or (B)
▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ stockholders have failed to adopt this Agreement and
approve the Merger at a vote duly taken, (iii) a termination by ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ of this Agreement pursuant to Section 7.1(g) herein, and (iv) a
termination by Pfizer pursuant to Section 7.1(j) herein; provided that no
Pfizer Termination Event shall be deemed to have occurred pursuant to any
of the preceding clauses if, at the time of termination, ▇▇▇▇▇▇-▇▇▇▇▇▇▇
shall be in breach of any of its representations, warranties, covenants,
obligations or agreements contained in this Agreement which breach would
entitle Pfizer to terminate this Agreement pursuant to Section 7.1(g).
(g) A "Neutral Termination Event" shall mean termination of this
Agreement pursuant to Section 7.1 herein which is neither a ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Termination Event nor a Pfizer Termination Event. Notwithstanding anything
herein to the contrary, a termination of this Agreement shall be a Neutral
Termination Event if the Merger cannot be accounted for as a pooling-of-
interests and there shall not have been any breach of either Section 4.1(h)
or Section 4.2(h) herein.
(h) "Collaboration Agreement" shall mean the Collaboration
Agreement, effective as of June 28, 1996, between ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and
Pfizer, as amended from time to time.
(i) "International Co-Promotion Agreement" shall mean the
International Co-Promotion Agreement, effective as of June 28, 1996,
between ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and Pfizer, as amended from time to time.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The respective obligations of ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Pfizer and Merger Sub to
effect the Merger are subject to the satisfaction or waiver on or prior to
the Closing Date of the following conditions:
(a) Stockholder Approval. (i) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall have
obtained the Required ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Vote in connection with the adoption
of this Agreement by the stockholders of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and (ii) Pfizer
shall have obtained the stockholder approval of the Share Issuance by the
stockholders of Pfizer.
(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 issued by a court or
other Governmental Entity of competent jurisdiction shall be in effect,
(i) having the effect of making the Merger illegal or otherwise prohibiting
consummation of the Merger or (ii) which otherwise, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect
on Pfizer and its Subsidiaries (including the Surviving Corporation and its
Subsidiaries), taken together after giving effect to the Merger.
(c) HSR Act; EC Merger Regulation. The waiting period (and any
extension thereof) applicable to the Merger under the HSR Act shall have
been terminated or shall have expired and approval of the Merger of the
European Commission shall have been obtained pursuant to the EC Merger
Regulation.
(d) Governmental and Regulatory Approvals. Other than the
filing provided for under Section 1.3 and filings pursuant to the HSR Act
and EC Merger Regulation (which are addressed in Section 6.1(c)), all
consents, approvals and actions of, filings with and notices to any
Governmental Entity required of Pfizer, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or any of their
Subsidiaries to consummate the Merger, the Share Issuance and the other
transactions contemplated hereby, the failure of which to be obtained or
taken, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect on Pfizer and its Subsidiaries (including
the Surviving Corporation and its Subsidiaries), taken together after
giving effect to the Merger, shall have been obtained; provided, however,
that the provisions of this Section 6.1(d) shall not be available to any
party whose failure to fulfill its obligations pursuant to Section 5.4
shall have been the cause of, or shall have resulted in, the failure to
obtain such consent or approval. No consents, approvals, actions, filings
or notices related to any antitrust requirements of any jurisdiction,
except as set forth in Section 6.1(c) hereof, shall be a condition of
closing under this Section 6.1(d).
(e) NYSE Listing. The shares of Pfizer Common Stock 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.
(f) 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 have been issued by the
SEC and no proceedings for that purpose shall have been initiated or
threatened by the SEC.
(g) Pooling. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall have received and delivered
to Pfizer and Pfizer's independent public accountants, two letters from its
independent public accountants, dated approximately the date the Form S-4
is declared effective and as of the Closing Date, stating that they concur
with ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ conclusions that, as of the date of such letters, no
conditions exist that would preclude ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ ability to be a party
in a business combination to be accounted for as a pooling-of-interests.
Pfizer shall have received and delivered to ▇▇▇▇▇▇-▇▇▇▇▇▇▇, two letters
from its independent public accountants, dated approximately the date the
Form S-4 is declared effective and as of the Closing Date, stating that
accounting for the Merger as a pooling-of-interests under Opinion 16 of the
Accounting Principles Board and applicable SEC rules and regulations is
appropriate if the Merger is closed and consummated as contemplated by this
Agreement.
6.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF PFIZER AND MERGER
SUB. The obligations of Pfizer and Merger Sub to effect the Merger are
subject to the satisfaction of, or waiver by Pfizer, on or prior to the
Closing Date of the following conditions:
(a) Representations and Warranties. Each of the representations
and warranties of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ set forth in this Agreement that is
qualified as to Material Adverse Effect shall be true and correct, and each
of the representations and warranties of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ set forth in this
Agreement that is not so qualified shall be true and correct in all
material respects, in each case as of the date of this Agreement and as of
the Closing Date as though made on and as of the Closing Date (except to
the extent in either case that such representations and warranties speak as
of another date), and Pfizer shall have received a certificate of the chief
executive officer and the chief financial officer of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ to such
effect.
(b) Performance of Obligations of ▇▇▇▇▇▇-▇▇▇▇▇▇▇. ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ shall have performed or complied with all agreements and covenants
required to be performed by it under this Agreement at or prior to the
Closing Date that are qualified as to Material Adverse Effect and shall
have performed or complied in all material respects with all other
agreements and covenants required to be performed by it under this
Agreement at or prior to the Closing Date that are not so qualified, and
Pfizer shall have received a certificate of the chief executive officer and
the chief financial officer of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ to such effect.
(c) Tax Opinion. Pfizer shall have received from Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to Pfizer, on or before the date the Form S-4
shall become effective and, subsequently, on the Closing Date, a written
opinion dated as of such dates substantially in the form of
Exhibit 6.2(c)(1). In rendering such opinion, counsel to Pfizer shall be
entitled to rely upon information, representations and assumptions provided
by Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ substantially in the form of
Exhibits 6.2(c)(2) and 6.2(c)(3) (allowing for such amendments to the
representations as counsel to Pfizer deems reasonably necessary).
(d) ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights Agreement. No Stock Acquisition Date
or Distribution Date (as such terms are defined in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Rights Agreement) shall have occurred pursuant to the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Rights
Agreement.
(e) Governmental Inquiry. No event or circumstance shall have
occurred relating to any governmental review or inquiry concerning any
product or business practice which is likely to result in a Material
Adverse Effect on ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or its prospects.
6.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF ▇▇▇▇▇▇-▇▇▇▇▇▇▇. The
obligations of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ to effect the Merger are subject to the
satisfaction of, or waiver by ▇▇▇▇▇▇-▇▇▇▇▇▇▇, on or prior to the Closing
Date of the following additional conditions:
(a) Representations and Warranties. Each of the representations
and warranties of Pfizer set forth in this Agreement that is qualified as
to Material Adverse Effect shall be true and correct, and each of the
representations and warranties of Pfizer set forth in this Agreement that
is not so qualified shall be true and correct in all material respects, in
each case as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date (except to the extent in either
case that such representations and warranties speak as of another date),
and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall have received a certificate of the chief executive
officer and the chief financial officer of Pfizer to such effect.
(b) Performance of Obligations of Pfizer. Pfizer shall have
performed or complied with all agreements and covenants required to be
performed by it under this Agreement at or prior to the Closing Date that
are qualified as to Material Adverse Effect and shall have performed or
complied in all material respects with all other agreements and covenants
required to be performed by it under this Agreement at or prior to the
Closing Date that are not so qualified, and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall have
received a certificate of the chief executive officer and the chief
financial officer of Pfizer to such effect.
(c) Tax Opinion. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall have received from
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to ▇▇▇▇▇▇-▇▇▇▇▇▇▇, on or
before the date the Form S-4 shall become effective and, subsequently, on
the Closing Date, a written opinion dated as of such dates substantially in
the form of Exhibit 6.3(c)(1). In rendering such opinion, counsel to
▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall be entitled to rely upon information, representations
and assumptions provided by Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ substantially in the
form of Exhibits 6.2(c)(2) and 6.2(c)(3) (allowing for such amendments to
the representations as counsel to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ deems reasonably
necessary).
(d) Pfizer Rights Agreement. No Stock Acquisition Date or
Distribution Date (as such terms are defined in the Pfizer Rights
Agreement) shall have occurred pursuant to the Pfizer Rights Agreement.
ARTICLE VII
TERMINATION AND AMENDMENT
7.1 TERMINATION. This Agreement may be terminated at any time
prior to the Effective Time, by action taken or authorized by the Board of
Directors of the terminating party or parties, and except as provided
below, whether before or after approval of the matters presented in
connection with the Merger by the stockholders of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or Pfizer:
(a) By mutual written consent of Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇;
(b) By either ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or Pfizer, if the Effective Time
shall not have occurred on or before December 31, 2000 (the "Termination
Date"); provided, however, that the right to terminate this Agreement under
this Section 7.1(b) shall not be available to any party whose failure to
fulfill any obligation under this Agreement (including without limitation
such party's obligations set forth in Section 5.4) has been the cause of,
or resulted in, the failure of the Effective Time to occur on or before the
Termination Date and provided further that if on the Termination Date the
conditions to Closing set forth in Sections 6.1(c) or 6.1(d) shall not have
been fulfilled but all other conditions to Closing shall be fulfilled or
shall be capable of being fulfilled then the Termination Date shall be
automatically extended to March 31, 2001;
(c) By either ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or Pfizer, if any Governmental
Entity (i) shall have issued an order, decree or ruling or taken any other
action (which the parties shall have used their reasonable best efforts to
resist, resolve or lift, as applicable, in accordance with Section 5.4)
permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement, and such order, decree, ruling
or other action shall have become final and nonappealable or (ii) shall
have failed to issue an order, decree or ruling or to take any other action
(which order, decree, ruling or other action the parties shall have used
their reasonable best efforts to obtain, in accordance with Section 5.4),
in the case of each of (i) and (ii) which is necessary to fulfill the
conditions set forth in Sections 6.1(c) and (d), as applicable, and such
denial of a request to issue such order, decree, ruling or take such other
action shall have become final and nonappealable; provided, however, that
the right to terminate this Agreement under this Section 7.1(c) shall not
be available to any party whose failure to comply with Section 5.4 has been
the cause of such action or inaction;
(d) By either ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or Pfizer, if the approvals of the
stockholders of either Pfizer or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ contemplated by this
Agreement (other than the Board Amendment) shall not have been obtained by
reason of the failure to obtain the required vote at a duly held meeting of
stockholders or of any adjournment thereof at which the vote was taken;
(e) By Pfizer, if ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall have failed to make the
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Recommendation or effected a Change in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Recommendation (or resolved to take any such action), whether or not
permitted by the terms hereof, or shall have materially breached its
obligations under this Agreement by reason of a failure to call the ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Stockholders Meeting in accordance with Section 5.1(b);
(f) By ▇▇▇▇▇▇-▇▇▇▇▇▇▇, if Pfizer shall have failed to make the
Pfizer Recommendation or effected a Change in the Pfizer Recommendation (or
resolved to take any such action), whether or not permitted by the terms
hereof, or shall have materially breached its obligations under this
Agreement by reason of a failure to call the Pfizer Stockholders Meeting in
accordance with Section 5.1(c);
(g) By either Pfizer or ▇▇▇▇▇▇-▇▇▇▇▇▇▇, if there shall have been
a breach by the other of any of its representations, warranties, covenants
or obligations contained in this Agreement, which breach would result in
the failure to satisfy the conditions set forth in Section 6.2(a) or
Section 6.2(b) (in the case of a breach by ▇▇▇▇▇▇-▇▇▇▇▇▇▇) or Section
6.3(a) or Section 6.3(b) (in the case of a breach by Pfizer), and in any
such case such breach shall be incapable of being cured or, if capable of
being cured, shall not have been cured within 30 days after written notice
thereof shall have been received by the party alleged to be in breach;
(h) [Intentionally omitted]
(i) By ▇▇▇▇▇▇-▇▇▇▇▇▇▇, if the Board of Directors of ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ authorizes ▇▇▇▇▇▇-▇▇▇▇▇▇▇ to enter into a written agreement
concerning a transaction that the Board of Directors of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ has
determined is a Superior Proposal; provided, that ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall not
terminate this Agreement pursuant to this Section 7.1(i) and enter into a
definitive agreement for a Business Combination until the expiration of
five (5) Business Days following Pfizer's receipt of written notice
advising Pfizer that ▇▇▇▇▇▇-▇▇▇▇▇▇▇ has received a Superior Proposal
specifying the material terms and conditions of such Superior Proposal (and
including a copy thereof with all accompanying documentation, if in
writing), identifying the person making such Superior Proposal and stating
whether ▇▇▇▇▇▇-▇▇▇▇▇▇▇ intends to enter into a definitive agreement for a
Business Combination. After providing such notice, ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall
provide a reasonable opportunity to Pfizer during such period to make such
adjustments in the terms and conditions of this Agreement as would enable
▇▇▇▇▇▇-▇▇▇▇▇▇▇ to proceed with the Merger on such adjusted terms;
(j) By Pfizer, if the Board of Directors of Pfizer authorizes
Pfizer to enter into a written agreement concerning a transaction that the
Board of Directors of Pfizer has determined is a Superior Proposal;
provided, that Pfizer shall not terminate this Agreement pursuant to this
Section 7.1(j) and enter into a definitive agreement for a Business
Combination until the expiration of five (5) Business Days following
▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ receipt of written notice advising ▇▇▇▇▇▇-▇▇▇▇▇▇▇ that
Pfizer has received a Superior Proposal specifying the material terms and
conditions of such Superior Proposal (and including a copy thereof with all
accompanying documentation, if in writing), identifying the person making
such Superior Proposal and stating whether Pfizer intends to enter into a
definitive agreement for a Business Combination. After providing such
notice, Pfizer shall provide a reasonable opportunity to ▇▇▇▇▇▇-▇▇▇▇▇▇▇
during such period to make such adjustments in the terms and conditions of
this Agreement as would enable Pfizer to proceed with the Merger on such
adjusted terms; or
(k) By either Pfizer or ▇▇▇▇▇▇-▇▇▇▇▇▇▇, if the Joint Proxy
Statement/Prospectus (reflecting pooling of interests accounting treatment)
had not been mailed to stockholders of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and Pfizer on or
prior to September 30, 2000, provided that this right of termination is not
available to any party which has not used its reasonable best efforts to
cause such Joint Proxy Statement/Prospectus to be so mailed.
7.2 EFFECT OF TERMINATION. (a) In the event of termination of
this Agreement by either ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or Pfizer as provided in
Section 7.1, this Agreement shall forthwith become void and there shall be
no liability or obligation on the part of Pfizer or ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or their
respective officers or directors except with respect to Section 3.1(l),
Section 3.2(l), Section 5.3, Section 5.7, Section 5.15, this Section 7.2
and Article VIII, which provisions shall survive such termination, and
except that, notwithstanding anything to the contrary contained in this
Agreement, neither Pfizer nor ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall be relieved or released
from any liabilities or damages arising out of its willful material breach
of this Agreement.
(b) In the event that this Agreement is terminated pursuant to
Section 7.1 herein under circumstances which constitute either a Pfizer
Termination Event or a Neutral Termination Event, then Pfizer shall pay to
▇▇▇▇▇▇-▇▇▇▇▇▇▇ not later than three Business Days after the date of such
termination an amount in cash equal to $1.8 billion (the "Pfizer
Termination Fee"). In the event this Agreement is terminated pursuant to
Section 7.1 herein (a) under circumstances which constitute a ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Termination Event under clauses (ii) or (iv) of the definition
thereof (including the proviso to Section 5.15(e)) and (b) at the time of
the event giving rise to the right of termination there shall be pending a
Superior Proposal with respect to ▇▇▇▇▇▇-▇▇▇▇▇▇▇, then ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall
pay to Pfizer not later than three Business Days after the date of such
termination an amount in cash equal to $500 million (the "▇▇▇▇▇▇-▇▇▇▇▇▇▇
Termination Fee").
(c) If ▇▇▇▇▇▇-▇▇▇▇▇▇▇ receives the Pfizer Termination Fee
pursuant to Section 7.2(b) and within twelve months following termination
of this Agreement ▇▇▇▇▇▇-▇▇▇▇▇▇▇ enters into a definitive agreement with a
third party with respect to a Business Combination, then ▇▇▇▇▇▇-▇▇▇▇▇▇▇
shall repay to Pfizer, without any interest thereon, not later than three
Business Days after the date of entering into such definitive agreement,
the Pfizer Termination Fee, provided that ▇▇▇▇▇▇-▇▇▇▇▇▇▇ shall not be
obligated to repay to Pfizer the Pfizer Termination Fee if (A) Pfizer
terminates this Agreement pursuant to Section 7.1(j) herein, (B) (I)
▇▇▇▇▇▇-▇▇▇▇▇▇▇ terminates this Agreement pursuant to Section 7.1(f) herein
and (II) Pfizer's Board of Directors shall have, prior to termination,
effected a Change in the Pfizer Recommendation following the making of a
proposal for a Business Combination with respect to Pfizer that continued
to be pending at the time of the event giving rise to the right of
termination, (C) (I) either ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or Pfizer terminates this
Agreement pursuant to Section 7.1(d) herein (provided the basis for such
termination is the failure of Pfizer's stockholders to approve the Share
Issuance) and (II) a proposal for a Business Combination with respect to
Pfizer had been made prior to such vote and continued to be outstanding at
the time of the event giving rise to the right of termination, or (D) at
the time of termination of this Agreement, Pfizer had breached its
representations, warranties, covenants or obligations under this Agreement
which breach entitles ▇▇▇▇▇▇-▇▇▇▇▇▇▇ to terminate this Agreement pursuant
to Section 7.1(g). If Pfizer receives the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Termination Fee
pursuant to Section 7.2(b) and within twelve months following termination
of this Agreement Pfizer enters into a definitive agreement with a third
party with respect to a Business Combination, then Pfizer shall repay to
▇▇▇▇▇▇-▇▇▇▇▇▇▇, without any interest thereon, not later than three Business
Days after the date of entering into such definitive agreement, the ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Termination Fee, provided that Pfizer shall not be obligated to
repay to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Termination Fee if (A) ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ terminates this Agreement pursuant to Section 7.1(i) herein, (B)
(I) Pfizer terminates this Agreement pursuant to Section 7.1(e) herein and
(II) ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ Board of Directors shall have, prior to termination,
effected a Change in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Recommendation following the making
of a proposal for a Business Combination with respect to ▇▇▇▇▇▇-▇▇▇▇▇▇▇
that continued to be pending at the time of the event giving rise to the
right of termination, (C) (I) either ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or Pfizer terminates
this Agreement pursuant to Section 7.1(d) herein (provided the basis for
such termination is the failure of ▇▇▇▇▇▇-▇▇▇▇▇▇▇'▇ stockholders adopt this
Agreement and approve the Merger) and (II) a proposal for a Business
Combination with respect to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ had been made prior to such vote
and continued to be outstanding at the time of the event giving rise to the
right of termination, or (D) at the time of termination of this Agreement,
▇▇▇▇▇▇-▇▇▇▇▇▇▇ had breached its representations, warranties, covenants or
obligations under this Agreement which breach entitles Pfizer to terminate
this Agreement pursuant to Section 7.1(g).
(d) For the purposes of this Section 7.2, "Business
Combination" means with respect to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ or Pfizer, as the case
may be, (i) a merger, reorganization, consolidation, share exchange,
business combination, recapitalization, liquidation, dissolution or similar
transaction involving such party as a result of which either (A) such
party's stockholders prior to such transaction (by virtue of their
ownership of such party's shares) in the aggregate cease to own at least
60% of the voting securities of the entity surviving or resulting from such
transaction (or the ultimate parent entity thereof) or, regardless of the
percentage of voting securities held by such stockholders, if any Person
shall beneficially own, directly or indirectly, at least 40% of the voting
securities of such ultimate parent entity, or (B) the individuals
comprising the board of directors of such party prior to such transaction
do not constitute a majority of the board of directors of such ultimate
parent entity, (ii) a sale, lease, exchange, transfer or other disposition
of at least 40% of the assets of such party and its Subsidiaries, taken as
a whole, in a single transaction or a series of related transactions, or
(iii) the acquisition, directly or indirectly, by a Person of beneficial
ownership of 40% or more of the common stock of such party whether by
merger, consolidation, share exchange, business combination, tender or
exchange offer or otherwise (other than a merger, reorganization,
consolidation, share exchange, business combination, recapitalization,
liquidation, dissolution or similar transaction upon the consummation of
which such party's stockholders would in the aggregate beneficially own
greater than 60% of the voting securities of such Person).
(e) All payments under this Section 7.2 and Section 5.15 shall
be made by wire transfer of immediately available funds to an account
designated by the party entitled to receive such payment.
7.3 AMENDMENT. This Agreement may be amended by the parties
hereto, 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 ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and
Pfizer, but, after any such approval, 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 such further approval. This
Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
7.4 EXTENSION; WAIVER. At any time prior to the Effective Time,
the parties hereto, 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 hereto, (ii) waive any inaccuracies in the representations
and warranties contained herein or in any document delivered pursuant
hereto and (iii) waive compliance with any of the agreements or conditions
contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in a written
instrument 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 shall not constitute a waiver of those rights.
ARTICLE VIII
GENERAL PROVISIONS
8.1 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 5.8) that by their terms apply or are to be
performed in whole or in part after the Effective Time and this
Article VIII.
8.2 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed duly given (a) on the date of delivery if
delivered personally, or by telecopy or telefacsimile, upon confirmation of
receipt, (b) on the first Business Day following the date of dispatch if
delivered by a recognized next-day courier service, or (c) on the tenth Business
Day following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be
delivered as set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:
(a) if to Pfizer or Merger Sub, to:
Pfizer Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (212)
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
with a copy to:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Block, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
(b) if to ▇▇▇▇▇▇-▇▇▇▇▇▇▇ to:
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
8.3 INTERPRETATION. When a reference is made in this Agreement
to Sections, Exhibits or Schedules, such reference shall be to a Section of
or Exhibit or Schedule to this Agreement unless otherwise indicated. 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. Whenever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
8.4 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 both parties need not sign the same counterpart.
8.5 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. (a) This
Agreement, the Confidentiality Agreement, the letter referenced in Section
1.7, the letters between the General Counsels of the parties dated the date
hereof and the other agreements of the parties referred to herein
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.
(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 5.8 (which is intended to be for the benefit
of the Persons covered thereby and may be enforced by such Persons). For
purposes of clarity, nothing in Section 5.6 is intended to confer upon any
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employee (US), ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Employee (Non-US) or ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Employee (Collective Bargaining Units), any benefits under any
benefits plan, programs, policies or other arrangements, including, but not
limited to, the right to employment or continued employment with Pfizer for
any period by reason of this Agreement.
8.6 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).
8.7 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. 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 in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the
greatest extent possible.
8.8 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, 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 Pfizer without the consent of ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
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.
8.9 SUBMISSION TO JURISDICTION; WAIVERS. Each of Pfizer and
▇▇▇▇▇▇-▇▇▇▇▇▇▇ 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 the other party hereto or its
successors or assigns may be brought and determined in the Chancery or
other Courts of the State of Delaware, and each of Pfizer and ▇▇▇▇▇▇-
▇▇▇▇▇▇▇ hereby irrevocably submits with regard to any such action or
proceeding for itself and in respect to its property, generally and
unconditionally, to the nonexclusive jurisdiction of the aforesaid courts.
Each of Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 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, (a) 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 (b) 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 (c) to the fullest
extent permitted by applicable law, that (i) the suit, action or proceeding
in any such court is brought in an inconvenient forum, (ii) the venue of
such suit, action or proceeding is improper and (iii) this Agreement, or
the subject matter hereof, may not be enforced in or by such courts.
8.10 ENFORCEMENT. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms. It is accordingly
agreed that the parties shall be entitled to specific performance of the
terms hereof, this being in addition to any other remedy to which they are
entitled at law or in equity.
8.11 DEFINITIONS. As used in this Agreement:
(a) "beneficial ownership" or "beneficially own" shall have the
meaning under Section 13(d) of the Exchange Act and the rules and
regulations thereunder.
(b) "Benefit Plans" means, with respect to any Person, each
employee benefit plan, program, arrangement and contract (including,
without limitation, any "employee benefit plan," as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") and any bonus, deferred compensation, stock bonus, stock
purchase, restricted stock, stock option, employment, termination, stay
agreement or bonus, change in control and severance plan, program,
arrangement and contract) in effect on the date of this Agreement or
disclosed on the ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Disclosure Schedule or the Pfizer
Disclosure Schedule, as the case may be, to which such Person or its
Subsidiary is a party, which is maintained or contributed to by such
Person, or with respect to which such Person could incur material liability
under Section 4069, 4201 or 4212(c) of ERISA.
(c) "Board of Directors" means the Board of Directors of any
specified Person and any committees thereof.
(d) "Business Day" means any day on which banks are not required
or authorized to close in the City of New York.
(e) "Confidentiality Agreement" means the Mutual Confidentiality
Agreement, dated January 26, 2000, between Pfizer and ▇▇▇▇▇▇-▇▇▇▇▇▇▇.
(f) "known" or "knowledge" means, with respect to any party, the
knowledge of such party's executive officers after reasonable inquiry.
(g) "Material Adverse Effect" means, with respect to any entity
any event, change, circumstance or effect that is or is reasonably likely
to be materially adverse to (i) the business, financial condition or
results of operations of such entity and its Subsidiaries taken as a whole,
other than any event, change, circumstance or effect relating (x) to the
economy or financial markets in general or (y) in general to the industries
in which such entity operates and not specifically relating to (or having
the effect of specifically relating to or having a materially
disproportionate effect (relative to most other industry participants) on)
such entity or (ii) the ability of such entity to consummate the
transactions contemplated by this Agreement. All references to Material
Adverse Effect on Pfizer or its Subsidiaries contained in this Agreement
shall be deemed to refer solely to Pfizer and its Subsidiaries without
including its ownership of ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and its Subsidiaries after the
Merger.
(h) "the other party" means, with respect to ▇▇▇▇▇▇-▇▇▇▇▇▇▇,
Pfizer and means, with respect to Pfizer, ▇▇▇▇▇▇-▇▇▇▇▇▇▇.
(i) "Person" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization,
other entity or group (as defined in the Exchange Act).
(j) "Subsidiary" when used with respect to any party means any
corporation or other organization, whether incorporated or unincorporated,
(i) of which such party or any other Subsidiary of such party is a general
partner (excluding partnerships, the general partnership interests of which
held by such party or any Subsidiary of such party do not have a majority
of the voting interests in such partnership) or (ii) at least a majority of
the securities or other interests of which having by their terms ordinary
voting power to elect a majority of the Board of Directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such party or
by any one or more of its Subsidiaries, or by such party and one or more of
its Subsidiaries.
(k) "Superior Proposal" means with respect to Pfizer or ▇▇▇▇▇▇-
▇▇▇▇▇▇▇, as the case may be, a written proposal made by a Person other than
either such party which is for (I) (i) a merger, reorganization,
consolidation, share exchange, business combination, recapitalization,
liquidation, dissolution or similar transaction involving such party as a
result of which either (A) such party's stockholders prior to such
transaction (by virtue of their ownership of such party's shares) in the
aggregate cease to own at least 60% of the voting securities of the entity
surviving or resulting from such transaction (or the ultimate parent entity
thereof) or (B) the individuals comprising the board of directors of such
party prior to such transaction do not constitute a majority of the board
of directors of such ultimate parent entity, (ii) a sale, lease, exchange,
transfer or other disposition of at least 40% of the assets of such party
and its Subsidiaries, taken as a whole, in a single transaction or a series
of related transactions, or (iii) the acquisition, directly or indirectly,
by a Person of beneficial ownership of 40% or more of the common stock of
such party whether by merger, consolidation, share exchange, business
combination, tender or exchange offer or otherwise (other than a merger,
consolidation, share exchange, business combination, tender or exchange
offer or other transaction upon the consummation of which such party's
stockholders would in the aggregate beneficially own greater than 60% of
the voting securities of such Person), and which is (II) otherwise on terms
which the Board of Directors of such party in good faith concludes (after
consultation with its financial advisors and outside counsel), taking into
account, among other things, all legal, financial, regulatory and other
aspects of the proposal and the Person making the proposal, (i) would, if
consummated, result in a transaction that is more favorable to its
stockholders (in their capacities as stockholders), from a financial point
of view, than the transactions contemplated by this Agreement and (ii) is
reasonably capable of being completed; provided that clause (II)(i) of this
definition shall not apply with respect to a proposal for Pfizer.
IN WITNESS WHEREOF, Pfizer, Merger Sub and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Chairman and
Chief Executive Officer
SEMINOLE ACQUISITION SUB CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇-▇▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇
Title: Chairman, President and
Chief Executive Officer