CORPORATE GOVERNANCE AND
STANDSTILL AGREEMENT
by and among
▇▇▇▇▇▇ PHARMACEUTICAL, INC.,
HOECHST CELANESE CORPORATION
and
HCCP ACQUISITION CORPORATION
Dated as of October 8, 1993
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TABLE OF CONTENTS
Section Page
1. Effectiveness of Agreement.............................................
2. Defined Terms..........................................................
3. Covenants..............................................................
4. Board of Directors.....................................................
5. Authority of Board of Directors........................................
6. Chief Executive Officer of the Company.................................
7. Restrictions on Transfer...............................................
8. Registration Rights....................................................
9. Legends................................................................
10. Termination............................................................
11. Representations........................................................
12. Entire Agreement; Assignment...........................................
13. Validity...............................................................
14. Notices................................................................
15. Governing Law..........................................................
16. Descriptive Headings...................................................
17. Specific Performance...................................................
18. Parties in Interest....................................................
19. Confidentiality Agreement..............................................
20. Counterparts...........................................................
21. Best Efforts...........................................................
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CORPORATE GOVERNANCE AND STANDSTILL AGREEMENT
CORPORATE GOVERNANCE AND STANDSTILL AGREEMENT, dated as of October 8,
1993, by and among Hoechst Celanese Corporation, a Delaware corporation ("HC"),
HCCP Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of HC ("Sub"), and ▇▇▇▇▇▇ Pharmaceutical, Inc., a Delaware
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, HC, Sub and the Company, simultaneously with the execution
hereof, are entering into an Acquisition Agreement (the "Acquisition Agreement")
pursuant to which Sub will commence a cash tender offer (the "Offer") for shares
of common stock, par value $.01 per share, of the Company (the "Shares"); and
WHEREAS, simultaneously herewith HC and Sub are entering into a Stock
Purchase Agreement (the "Stock Purchase Agreement") with the stockholders listed
therein pursuant to which the parties thereto are agreeing to certain matters
with respect to certain of such stockholders' Shares; and
WHEREAS, the parties desire to confirm their understandings with
respect to the matters set forth herein. NOW, THEREFORE, the parties
hereto, in consideration of the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, covenant and agree as
follows:
1........Effectiveness of Agreement. This Agreement shall be effective
upon acquisition by HC or Sub of at least a majority of the outstanding Shares
(the "Effective Time"). In the event that the Acquisition Agreement and the
Stock Purchase Agreement are terminated without HC or Sub acquiring Shares in
connection therewith, this Agreement shall thereupon become null and void and be
of no further force and effect.
2........Defined Terms. As used in this Agreement, the following terms
shall have the meanings ascribedthereto:
.................."Acquisition Agreement" has the meaning set forth in the
"Whereas" clauses.
.................."1933 Act" means the Securities Act of 1933, as amended
including the Rules and Regulationspromulgated thereunder).
.................."1934 Act" means the Securities Exchange Act of 1934,
as amended (including the Rules andRegulations promulgated thereunder).
.................."Affiliate" of any entity or Person shall mean any other
Person controlling, controlled by, or under common control with, such Person.
"Control," when used with respect to any Person, means the power to direct the
management policies of such Person, directly, indirectly, individually or
jointly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" having meanings
correlative to the foregoing.
.................."Agreement" has the meaning set forth in the introduction.
.................."Beneficially Own" and "Beneficial Ownership" with respect to
any securities means having beneficial ownership as determined pursuant to Rule
13d-3 under the 1934 Act.
.................."Board" or "Board of Directors" shall mean the Board of
Directors of the Company.
.................."By-laws" means the Amended and Restated By-laws of the
Company adopted April 9, 1992, as such may be amended from time to time.
.................."Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of equity
interests in such Person.
.................."Certificate of Incorporation" means the Amended and Restated
Certificate of Incorporation of the Company, as such may be amended from time to
time.
.................."Company" has the meaning set forth in the Introduction.
.................."Company Directors" shall initially be ▇▇▇▇ ▇▇▇▇▇ and two
current directors of the Company who are not employees of the Company.
Thereafter, the Company Directors shall be the persons designated by the Company
Directors then in office.
.................."Demand Registration" has the meaning set forth in Section
8(a).
.................."Demand Registration Statement" has the meaning set forth in
Section 8(a).
.................."Effective Time" has the meaning set forth in Section 1.
.................."Extraordinary Matters" has the meaning set forth in Section
4(b).
.................."Fully Diluted Basis" shall mean, with respect to the Capital
Stock of any Person, all shares of such Capital Stock which would be outstanding
if all shares of such Capital Stock issuable or deliverable upon the exercise of
all then outstanding rights, options and warrants (vested or unvested) issued or
granted by such Person to subscribe for or purchase shares of such Capital Stock
of such Person, and upon the conversion or exchange of all then outstanding
securities issued by such Person or any of its Subsidiaries convertible into or
exchangeable for shares of such Capital Stock of such Person, were issued and
outstanding at the time ofdetermination.
.................."HC" has the meaning set forth in the Introduction.
.................."HC Directors" shall be such persons as are so designated by
HC, as such designation may change from time to time.
.................."HC Parties" means collectively HC and Sub and any Affiliates
thereof.
.................."Independent Directors" shall be jointly selected by the
Company Directors and the HC Directors, as such selection may change from time
to time. Following five years from the date hereof, the Independent Directors
shall mean a person who (x) is in fact independent, (y) does not have any direct
financial interest or any material indirect financial interest in HC or the
Company or any of their respective Affiliates (other than by reason of ownership
of not more than 1% of any class of securities thereof), and (z) is not
connected with HC or the Company or any of their respective Affiliates as an
officer, employee, consultant, agent, advisor, representative, trustee, partner,
director (other than of the Company) or person performing similar functions.
.................."Offer" has the meaning set forth in the "Whereas" clauses.
.................."Person" shall mean any individual, firm, corporation,
partnership or other entity.
.................."SEC" means the Securities and Exchange Commission of the
United States or any substantially similar " successor governmental entity.
.................."Shares" has the meaning set forth in the "Whereas" clauses.
.................."Stock Purchase Agreement" has the meaning set forth in the
"Whereas" clauses.
.................."Sub" has the meaning set forth in the Introduction.
.................."Subsidiary" of any Person (that Person, the "Parent") means
any other Person of which Capital Stock representing at least a majority of the
voting power under normal circumstances to elect a majority of the board of
directors or other governing body of such Person shall be owned directly or
indirectly by the Parent and/or one or more of the Parent's Subsidiaries.
.................."Total Voting Power" means the aggregate Voting Power of all
of the Voting Stock, if all Voting Stock were present and voted at a meeting of
the Company's stockholders.
.................."Voting Power" of any Voting Stock means the number of votes
such Voting Stock would be entitled to cast in the election of directors of the
Company at any meeting of stockholders of the Company.
.................."Voting Stock" means the outstanding Shares and any other
outstanding securities issued by the Company having the ordinary power to vote
in the election of directors of the Company, excluding securities issued by the
Company having such power only upon the happening of a contingency.
3........Covenants.
..................(a) From and after the Effective Time, without the
Company's prior written consent(including the consent of at least one Company
Director) the HC Parties will not, directly or indirectly:
(i) acquire, or agree to acquire, Beneficial
Ownership of any Voting Stock except pursuant to Section 3(d) hereof;
(ii) solicit proxies with respect to any Voting Stock
or be a "participant" in a "solicitation" or "election contest" (as
such terms are used in Regulation 14A promulgated under Section 14 of
the ▇▇▇▇ ▇▇▇) or seek to influence any Person with respect to the
voting of any Voting Stock, in any case in opposition to a
recommendation of the Board, except as contemplated by the Stock
Purchase Agreement;
(iii) vote its Voting Stock with respect to any
matter in opposition to the recommendation of the Board of Directors or
fail to vote its Voting Stock in favor of any matter recommended by the
Board of Directors; or
(iv) have any Voting Stock on deposit in a voting
trust or subject any Voting Stock to any arrangement or agreement with
respect to the voting of such Voting Stock or other agreement having
similar effect.
..................(b) With respect to determining the number of shares of
Voting Stock or other Capital Stock of the Company outstanding at any time,
unless the Company shall have provided the HC Parties with more recent
information in writing, the HC Parties and their Affiliates shall be entitled to
rely upon the information filed by the Company with the SEC setting forth the
number of shares of Voting Stock of the Company outstanding.
..................(c) The HC Parties hereby agree that at any meeting of
the stockholders of the Company or in connection with any action by written
consent by the stockholders of the Company, they shall vote their Voting Stock
Beneficially Owned by them against any action or agreement, and the HC Parties
will not take any other action, that would (x) result in a breach of any
covenant, representation or warranty or any other obligation of the HC Parties
under this Agreement or (y) impede, interfere with or discourage the
transactions contemplated by this Agreement. The Company shall not take any
action that would result in a breach of any covenant, representation or warranty
or any other obligation of the Company under this Agreement or impede, interfere
with or discourage the transactions contemplated by this Agreement.
..................(d) If the Company shall issue any shares of Voting Stock,
including upon the exercise or conversion of options, warrants, rights or other
securities, the Company shall thereupon offer to sell to HC (or any Subsidiary
designated by HC) a number of shares of Voting Stock of the class issued such
that immediately following such issuance, HC would Beneficially Own the lesser
of:(i) 54.3% of the then outstanding Total Voting Power and (ii) the percentage
of the Total Voting Power which HC Beneficially Owned immediately prior to such
issuance. The Company shall offer to sell such shares to HC at a price equal to
the issue price for such shares; provided that, in the case of issuances
pursuant to the exercise of options issued pursuant to a Company employee or
director stock option plan, the Company shall offer to sell shares to HC at a
price equal to the fair market value of such shares on the date of the option
exercise. In the case of cashless option exercises, the Company and HC shall use
their best efforts to enter into arrangements providing that HC shall have the
right to acquire a portion of the shares being issued in connection with such
cashless exercise.
..................The Company shall notify HC promptly, and in any event within
two days of issuance, of the issuance of any shares. Such notice shall also
include the number and class of shares to be offered to HC, the purchase price
thereof and, based on the most recent information available to the Company after
due inquiry, the number of outstanding shares and the number and terms of any
outstanding options, warrants and rights. HC shall have 60 days from the receipt
of such notice to notify the Company as to whether it shall purchase all or any
part of such shares. The closing of such purchase and sale shall take place at
the date and time specified in the HC notice, provided such closing is not less
than two nor more than ten days from the date the Company receives such notice.
..................HC and the Company shall reasonably cooperate to effect the
foregoing, including by entering into such further agreements, providing such
information or execute such instruments, as either party may reasonably request.
..................(e) Except as provided in Section 3(d), any purchases of
Shares by HC or its Affiliates prior to the fifth anniversary hereof shall
require the approval of a majority of the members of the Board of Directors who
are Company Directors. Following the fifth anniversary of the date hereof,
notwithstanding any provisions hereof to the contrary, (i) HC may acquire
Company securities in privately negotiated, unsolicited transactions, so long as
at least 17% of the outstanding Shares remain freely tradeable Shares and (ii)
without the approval of a majority of the Independent Directors, HC will not
otherwise acquire any Shares.
..................(f) So long as there are Company Directors or Independent
Directors on the Board, (i) HC will not take any actions to amend provisions of
the Certificate of Incorporation or By-Laws relating to the indemnification of
directors of the Company or cause the Company to breach any existing indemnity
agreement with officers or directors and (ii) will not cause the Company to
terminate its directors and officers' insurance policy and, following the time
the HC Directors constitute a majority of the Board, will cause the Company to
continue such policy, or other policy of similar scope, as long as the Company
is not required to spend in any year more than 150% of its current annual
expenditures for such purpose.
..................(g) Each transaction or series of related transactions between
the Company and HC or an Affiliate of HC and each other corporate action of the
Company in which there is a potential conflict between the interests of HC or
any Affiliate and the interests of the Company and its other stockholders shall
be subject to the prior approval of a majority of the Independent Directors of
the Company.
4........Board of Directors.
..................(a) At the Effective Time, the Company shall cause the
Board of Directors to consist of 9 persons, 3 of whom are Company Directors, 3
of whom are HC Directors and 3 of whom are Independent Directors. Each of the
Company Directors, HC Directors and Independent Directors shall be divided as
equally as possible among the 3 classes of directors on the Board.
..................(b) After the Effective Time, the Company will use its
best efforts to continue the arrangements set forth in paragraph (a), above,
provided, that (i) if the HC Parties shall Beneficially Own less than 35% of the
Total Voting Power, HC shall cause the resignation of one HC Director, so that
there are two HC Directors on the Board and the Board shall then include four
Independent Directors, (y) if the HC Parties shall Beneficially Own less than
25% of the Total Voting Power, HC shall cause the resignation of HC Directors so
that there is one HC Director on the Board and the Board shall then include five
Independent Directors and (z) if the HC Parties shall Beneficially Own less than
10% of the Total Voting Power, HC shall cause the resignation of all HC
Directors on the Board of Directors.
..................(c) The composition of each committee of the Board of
Directors shall reflect proportionately as closely as possible the composition
of the Board of Directors.
5........Authority of Board of Directors.
..................(a) Except as set forth in paragraph (b) below or
otherwise required by law, the Certificate of Incorporation or the Bylaws, all
actions and decisions of the Board of Directors shall require a majority vote of
the directors then in office.
..................(b) In addition to any stockholder vote or vote by the
Board of Directors which may be required by law, the affirmative vote of at
least one HC Director shall be required in order to authorize the following
actions or matters (collectively, the "Extraordinary Matters"):
(i) in one transaction or a series of related
transactions, the transfer, lease, license, sale, mortgage,
encumbrance, pledge or other disposition of any assets of the Company
or its Subsidiaries involving more than $10 million of assets;
(ii) in one transaction or a series of related
transactions, the purchase or other acquisition of the assets or stock
of, or the investment in or capital contribution to, any other Person,
where the consideration represents more than $10 million;
(iii) in one transaction or a series of related
transactions, the merger, consolidation or other business combination
involving the Company or any of its Subsidiaries where the
consideration represents more than $10 million;
(iv) in one transaction or a series of related
transactions, the issuance, sale or repurchase of Voting Capital Stock
or rights to acquire (including convertible securities) Voting Capital
Stock involving more than $10 million;
(v) amendments to the Certificate of Incorporation or
the By-laws; (vi) the termination of employment or
the hiring of a Chief Executive Officer; (vii) the
approval of an annual budget for the Company and its
Subsidiaries
(including, but not limited to, capital expenditures, debt incurrence
and operating expenses), any amendments thereto and any significant
expenditures or borrowings not contemplated thereby;
(viii) any increase in the annual compensation (other
than pursuant to the annual bonus pool or stock options) for the
officers of the Company subject to Section 16(a) under the 1934 Act
aggregating more than 15% in any one year, any change in the method of
calculating the Company's annual bonus pool (including the formula for
such bonus over 10% of the Company's annual pretax profits) and any
awards of options representing more than an aggregate of 250,000 Shares
for all directors, officers and employees of the Company in any year;
(ix) the declaration, setting aside or payment of any
dividend or distribution on its Capital Stock payable in cash, stock or
property;
(x) the amendment to or waiver of this Agreement; and
(xi) the initiation of bankruptcy, insolvency or
reorganization proceedings involving the Company or any of its
Subsidiaries.
..................In addition, the affirmative vote of at least one Company
Director is required in order to authorize the actions set forth in paragraphs
(b)(v) and (x) above.
..................(c) The provisions set forth in paragraph (b) above
relating to the vote of the Board of Directors required to approve Extraordinary
Matters shall terminate five years from the date hereof; provided, however, that
(i) the provisions set forth in paragraphs (b)(i), (ii), (iii), (iv), (vii) and
(viii) shall terminate if the HC Parties Beneficially Own less than 50% of the
Total Voting Power and (ii) the provisions set forth in paragraph (b) above
shall terminate if the HC Parties Beneficially Own less than 35% of the Total
Voting Power or if a third party shall Beneficially Own at least a majority of
the Total Voting Power; and further provided, however, that such provisions
shall not terminate if the HC Parties' percentage Beneficial Ownership decreased
following an issuance of Voting Stock unless the HC Parties do not acquire a
sufficient number of shares of Voting Stock to be in compliance with this
provision within 70 days of notice to HC of such issuance of Voting Stock.
6........Chief Executive Officer of the Company.
..................(a) Following the Effective Time, the Chairperson of the
Board and Chief Executive Officer of the Company shall be ▇▇▇▇ ▇.▇. ▇▇▇▇▇, who
shall serve in accordance with the terms of the Employment Agreementdated the
date hereof, between ▇▇. ▇▇▇▇▇ and the Company.
7........Restrictions on Transfer. The HC Parties may sell, transfer or
dispose of all or a portion of any Voting Stock Beneficially Owned. If any
Person acquiring Voting Stock from the HC Parties, other than in a transaction
pursuant to Rule 144 under the 1933 Act or in a bona fide public offering, in
which the underwriters are instructed to achieve as wide a distribution as
practicable, would, to the best knowledge of the HC Parties after reasonable
inquiry, Beneficially Own 5% or more of the Total Voting Power determined on a
Fully Diluted Basis, such person as a condition to transfer shall agree to be
bound by the provisions hereof, and shall be entitled to all benefits hereof
(including registration rights to the extent transferred), other than Sections 4
and 5.
8........Registration Rights.
..................(a) If a HC Party requests the Company in writing to
register under the 1933 Act any Shares (references to Shares in this Section 8
shall include references to any security of the Company) held by such HC Party
(a "Demand Registration"), the Company shall use its best efforts to cause the
Shares specified in such request to be registered as promptly as practicable
under the 1933 Act so as to permit the sale thereof and in connection therewith
promptly prepare and file, on such appropriate MP form as HC shall reasonably
request, a registration statement (a "Demand Registration Statement") under the
1933 Act to effect such registration and use its best efforts to have such
registration statement become effective as promptly as practicable and otherwise
use its best efforts to make such filings and take such actions as may be
necessary or desirable to allow HC lawfully to distribute Shares; provided,
however, that (i) each such Demand Registration is for the registration of
Shares leaving a market value on the date of such demand of at least $25
million, (ii) the Company shall not be obligated to file a registration
statement pursuant to this Section 8 during the 180-day period following the
effectiveness of any other registration statement filed by the Company pursuant
to this paragraph (a) and (iii) Company's obligations shall cease once three
Demand Registration Statements have become effective and have remained effective
(including not being subject to any stop order or injunction) for the period
contemplated by paragraph (b) below.
..................(b) Upon any registration becoming effective pursuant to
this Section 8, the Company shall use its best efforts to keep such registration
statement current for a period of 90 days or such shorter period which will
terminate when all Shares covered by such Demand Registration Statement have
been sold.
..................(c) Notwithstanding the foregoing, (i) the Company shall
not be obligated to cause any special audit to be undertaken in connection with
any such registration and (ii) with respect to each Demand Registration, the
Company shall be entitled to postpone for up to 90 days the filing of any
registration statement otherwise required to be prepared and filed by it (A) to
the extent necessary to prepare the financial statements of the Company for the
fiscal period most recently ended prior to such written request, (B) if the
Company would be required to disclose in such registration statement the
existence of any fact not otherwise required to be disclosed and the Company
reasonably determines that such disclosure would be materially injurious to it
or (C) if the nationally recognized investment banking firm serving as managing
underwriter notifies the HC Parties that a registration at the time and on the
terms requested would Adversely affect any financing by the Company that had
been contemplated by the Company prior to receipt of notice requesting
registration pursuant to paragraph (a).
..................(d) The Company shall pay all of the expenses incurred in
connection with each Demand Registration, except that the HC Parties shall pay
all fees of .any independent counsel retained by them and any underwriting
Discounts in connection therewith.
..................(e) If requested by the HC Parties, the Company shall
enter into an underwriting agreementwith a nationally recognized investment
banking firm selected by the HC Parties, in connection with a Demand
Registration Statement, containing representations, warranties, indemnities and
agreements then customarily included by an issuer in underwriting agreements
with respect to secondary distributions by such underwriter.
..................(f) If requested by the HC Parties, the Company shall enter
into an indemnification
agreement with the HC Parties providing for indemnification on customary terms.
9........Legends. The certificates evidencing all Voting Stock at any
time Beneficially Owned by an HC Party or any of their respective transferees,
shall bear the following legends unless and until such time as HC or any such
transferee delivers an opinion of counsel reasonably acceptable to the Company
and its counsel to the effect that such legend is not required under this
Agreement or that this Agreement has been terminated in accordance with its
terms, and, in the case of a transferee, that such transfer is not in violation
of this Agreement and that the transferee is not subject to or bound by the
provisions of this Agreement, and stating the basis therefor:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF A CORPORATE GOVERNANCE AND STANDSTILL
AGREEMENT DATED AS OF OCTOBER 8, 1993 BY AND AMONG HOECHST
CELANESE CORPORATION, HCCP ACQUISITION CORPORATION AND ▇▇▇▇▇▇
PHARMACEUTICAL, INC., COPIES OF WHICH ARE ON FILE WITH THE
SECRETARY OF ▇▇▇▇▇▇, AND ARE HELD AND MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED, ENCUMBERED,
OTHERWISE GRANTED AS SECURITY, OR OTHERWISE DISPOSED OF EXCEPT
IN ACCORDANCE THEREWITH.
NO REGISTRATION OF TRANSFER OF THE SECURITIES WILL BE MADE ON
THE BOOKS OF ▇▇▇▇▇▇ UNLESS SUCH TRANSFER IS MADE IN CONNECTION
WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933 OR PURSUANT TO AN EXEMPTION FROM APPLICABLE
FEDERAL AND STATE REGISTRATION REQUIREMENTS."
10.......Termination. This Agreement shall terminate five years
following the date hereof, provided that, so long as the Company has equity
securities registered under the 1934 Act, there shall be at least three
Independent Directors on the Board and that Sections 3(e) and 21 shall survive.
Upon a material breach of this Agreement by the Company, on the one hand, or HC
or Sub, on the other hand, the obligations of HC (and Sub) or the Company, as
the case may be, shall terminate. Prior to such termination, the person wishing
to terminate shall give the other parties written notice of the breach and 20
days to cure such breach.
11.......Representations. (a) HC and Sub severally represent and
warrant to the Company that (i) such party has duly authorized, executed and
delivered this Agreement and this Agreement is a valid and binding agreement of
HC and Sub, enforceable against HC and Sub in accordance with its terms and (ii)
the execution of this Agreement by HC and Sub and the consummation by HC and Sub
of the transactions contemplated hereby will not constitute a violation of, or
conflict with, or default under, any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which HC or Sub is a
party or by which it may be bound, and (b) the Company represents and warrants
to each of the HC Parties that (i) the Company has duly authorized, executed and
delivered this Agreement and this Agreement is a valid and binding agreement of
Company, enforceable against the Company in accordance with its terms and (ii)
the execution of this Agreement by Company and the consummation by the Company
of the transactions contemplated hereby will not constitute a violation of, or
conflict with, or default under, any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which the Company is a
party or by which the Company is bound.
12.......Entire Agreement; Assignment. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties or any of them with respect to the subject matter hereof,
and except as provided herein, shall not be assigned by operation of law or
otherwise.
13.......Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
14.......Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telegram, telex or telefax, or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties as follows:
if to the HC Parties:
Hoechst Celanese Corporation
▇▇▇▇▇ ▇▇▇-▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
if to the Company:
▇▇▇▇▇▇ Pharmaceutical, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇. ▇▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
Exchange Place
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
15.......Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
16.......Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
17.......Specific Performance. The parties hereto acknowledge that
damages would be an inadequate remedy for a breach of this agreement and that
the obligations of the parties hereto shall be specifically enforceable, in
addition to any other remedy which may be available at law or in equity.
18.......Parties in Interest. Except as set forth herein, 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 or persons any rights, benefits or remedies
of any nature whatsoever under or by reason of this Agreement.
19.......Confidentiality Agreement. The Confidentiality Agreement,
dated September 9, 1993, between HC and the Company shall terminate at the
Effective Time.
20.......Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
21.......Best Efforts. Each party hereto shall use its reasonable best
efforts to cause the transactions contemplated hereby to be consummated and
effected.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their respective officers thereunto duly authorized, all as of the
day and year first above written.
▇▇▇▇▇▇ PHARMACEUTICAL, INC.
By: /s/ ▇▇▇▇ C.I. Hirsh___________________
Name: ▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Chairperson of the Board,
Chief Executive Officer and President
HOECHST CELANESE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. Benz___________________
Name: ▇▇▇▇▇ ▇. Benz
Title: Senior, Vice President-Finance,
Chief Financial Officer and Director
HCCP ACQUISITION CORPORATION
By: /s/ Don Whitcomb___________________
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
