EXHIBIT 2
STOCKHOLDERS AGREEMENT dated as of March 19, 2002
(this "Agreement"), among SCHERING AKTIENGESELLSCHAFT, a
stock corporation organized under the laws of the Federal
Republic of Germany ("Parent"), and the individuals and
other parties listed on Schedule A attached hereto (each,
a "Stockholder" and, collectively, the "Stockholders").
WHEREAS Parent, European Acquisition Company, a Delaware corporation
and a wholly owned subsidiary of Parent ("Sub"), and Collateral Therapeutics,
Inc., a Delaware corporation (the "Company"), propose to enter into an
Agreement and Plan of Merger dated as of the date hereof (as the same may be
amended or supplemented, the "Merger Agreement"; terms used but not defined
herein shall have the meanings set forth in the Merger Agreement) providing
for the merger of Sub with and into the Company upon the terms and subject to
the conditions set forth in the Merger Agreement (the "Merger");
WHEREAS each Stockholder is the record and beneficial owner of the
number of shares of capital stock of the Company set forth beside such
Stockholder's name on Schedule A hereto (such shares of capital stock of the
Company, together with any other shares of capital stock of the Company or
other voting securities of the Company acquired by such Stockholder after the
date hereof and during the term of this Agreement (including through the
exercise of any warrants, stock options or similar instruments), being
collectively referred to herein as such Stockholder's "Subject Shares"); and
WHEREAS as a condition to its willingness to enter into the Merger
Agreement, Parent has required that each Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of Each Stockholder. Each
Stockholder hereby, severally and not jointly, represents and warrants to
Parent as follows:
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(a) Authority; Execution and Delivery; Enforceability. Such
Stockholder has the requisite power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated by this Agreement.
The execution and delivery of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated by this
Agreement and compliance by such Stockholder with the provisions of this
Agreement have been duly authorized by all necessary trust or other action on
the part of such Stockholder and no other trust or other proceedings on the
part of such Stockholder are necessary to authorize this Agreement or to
consummate the transactions contemplated by this Agreement. This Agreement has
been duly executed and delivered by such Stockholder and constitutes a legal,
valid and binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms. The execution and delivery of this
Agreement do not, and the consummation of the transactions contemplated by
this Agreement and compliance with the provisions of this Agreement will not,
conflict with, or result in any violation or breach of, or default (with or
without notice or lapse of time, or both) under, or give rise to a right of,
or result in, termination, cancelation or acceleration of any obligation or to
loss of a benefit under, or result in the creation of any Lien in or upon any
of the properties or other assets of such Stockholder under, or give rise to
any increased, additional, accelerated or guaranteed rights or entitlements
under, any provision of (i) the trust documents of such Stockholder, (ii) any
loan or credit agreement, bond, debenture, note, mortgage, indenture, lease or
other contract, agreement, obligation, commitment, arrangement, understanding,
instrument, permit, concession, franchise, license or similar authorization
applicable to such Stockholder or any of its properties or other assets or
(iii) subject to the governmental filings and other matters referred to in the
following sentence, any (A) statute, law, ordinance, rule or regulation or (B)
order, writ, injunction, decree, judgment or stipulation, in each case
applicable to such Stockholder or any of its properties or other assets. No
consent, approval, order or authorization of, or registration, declaration or
filing with, or notice to, any Governmental Entity is required by or with
respect to such Stockholder in connection with the execution and delivery of
this Agreement by such Stockholder or the consummation by such Stockholder of
the transactions contemplated by this Agreement or compliance by such
Stockholder with the provisions of this Agreement, except for filings with the
SEC of such reports under the Exchange Act as may be required in connection
with this Agreement. If such Stockholder is married and such Stockholder's
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Subject Shares constitute community property or otherwise need spousal or
other approval in order for this Agreement to be legal, valid and binding,
this Agreement has been duly approved, executed and delivered by, and
constitutes a legal, valid and binding obligation of, such Stockholder's
spouse, enforceable against such spouse in accordance with its terms. No trust
of which such Stockholder is a trustee requires the consent of any beneficiary
or other person to the execution and delivery of this Agreement or to the
consummation by such trust of the transactions contemplated by this Agreement
or compliance by such trust with the provisions of this Agreement.
(b) The Subject Shares. Such Stockholder is the record and
beneficial owner of, or is the trustee of a trust that is the record holder
of, and whose beneficiaries are the beneficial owners of, and has good and
marketable title to, the Subject Shares set forth beside the name of such
Stockholder on Schedule A hereto, free and clear of any Liens. Such
Stockholder does not own, of record or beneficially, any shares of capital
stock or other voting securities of the Company other than the Subject Shares
set forth beside the name of such Stockholder on Schedule A hereto. Such
Stockholder has the sole right to vote and Transfer (as defined in Section
3(c)) the Subject Shares set forth beside the name of such Stockholder on
Schedule A hereto and such Subject Shares possess the total number of votes
set forth on Schedule A hereto, and none of such Subject Shares is subject to
any voting trust or other agreement, arrangement or restriction with respect
to the voting or the Transfer of such Subject Shares, except as set forth in
Section 3 of this Agreement. Such Stockholder further represents that any
proxies heretofore given in respect of such Stockholder's Subject Shares are
revocable, and represents and declares that all such proxies are hereby
revoked.
(c) Brokers. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions
contemplated by this Agreement or the Merger Agreement based upon arrangements
made by or on behalf of such Stockholder.
SECTION 2. Representations and Warranties of Parent. Parent hereby
represents and warrants to each Stockholder as follows: Parent has the
requisite corporate power and corporate authority to execute and deliver this
Agreement and to consummate the transactions contemplated by this Agreement.
The execution and delivery of this Agreement by Parent and the consummation by
Parent of the
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transactions contemplated by this Agreement and compliance by Parent with the
provisions of this Agreement have been duly authorized by all necessary
corporate action on the part of Parent and no other corporate proceedings on
the part of Parent are necessary to authorize this Agreement or to consummate
the transactions contemplated by this Agreement.
This Agreement has been duly executed and delivered by Parent and
constitutes a legal, valid and binding obligation of Parent, enforceable
against Parent in accordance with its terms. The execution and delivery of
this Agreement do not, and the consummation of the transactions contemplated
by this Agreement and compliance with the provisions of this Agreement will
not, conflict with, or result in any violation or breach of, or default (with
or without notice or lapse of time, or both) under, or give rise to a right
of, or result in, termination, cancelation or acceleration of any obligation
or to loss of a benefit under, or result in the creation of any Lien in or
upon any of the properties or other assets of Parent under, or give rise to
any increased, additional, accelerated or guaranteed rights or entitlements
under, any provision of (i) the Articles of Association of Parent, (ii) any
loan or credit agreement, bond, debenture, note, mortgage, indenture, lease or
other contract, agreement, obligation, commitment, arrangement, understanding,
instrument, permit, concession, franchise, license or similar authorization
applicable to Parent or any of its properties or other assets or (iii) subject
to the governmental filings and other matters referred to in the following
sentence, any (A) statute, law, ordinance, rule or regulation or (B) order,
writ, injunction, decree, judgment or stipulation, in each case applicable to
Parent or any of its properties or other assets, other than, in the case of
clauses (ii) and (iii), any such conflicts, violations, breaches, defaults,
rights, losses, Liens or entitlements that individually or in the aggregate
would not prevent or materially delay the consummation of any of the
transactions contemplated by this Agreement. No consent, approval, order or
authorization of, registration, declaration or filing with, or notice to, any
Governmental Entity is required by or with respect to Parent in connection
with the execution and delivery of this Agreement by Parent or the
consummation by Parent of the transactions contemplated by this Agreement or
compliance by Parent with the provisions of this Agreement, except for (1)
filings with the SEC of such reports under the Exchange Act as may be required
in connection with this Agreement and the transactions contemplated by this
Agreement and (2) such other consents, approvals, orders, authorizations,
registrations,
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declarations, filings and notices the failure of which to be obtained or made
individually or in the aggregate would not prevent or materially delay the
consummation of any of the transactions contemplated by this Agreement.
SECTION 3. Covenants of Each Stockholder. Each Stockholder,
severally and not jointly, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote
upon the Merger Agreement, the Merger or any of the other transactions
contemplated by the Merger Agreement, or at any adjournment or postponement
thereof, or in any other circumstances upon which a vote, consent, adoption or
other approval (including by written consent solicitation) is sought, such
Stockholder shall vote (or cause to be voted) all the Subject Shares of such
Stockholder in favor of, and shall consent to (or cause to be consented to),
the adoption of the Merger Agreement and the approval of the terms thereof and
of the Merger and each of the other transactions contemplated by the Merger
Agreement.
(b) (i) At any meeting of the stockholders of the Company or at any
adjournment or postponement thereof or in any other circumstances upon which a
vote, consent, adoption or other approval (including by written consent
solicitation) is sought, such Stockholder shall vote (or cause to be voted)
all the Subject Shares of such Stockholder against, and shall not consent to
(and shall cause the Subject Shares of such Stockholder not to be consented
to), any of the following (or any agreement to enter into, effect, facilitate
or support any of the following): (A) any merger agreement or merger (other
than the Merger Agreement and the Merger), consolidation, business
combination, sale of substantial assets, joint venture, binding share
exchange, reorganization, recapitalization, dissolution, liquidation or
winding up of or by the Company or any other Takeover Proposal or (B) any
amendment of the Company's Second Restated Certificate of Incorporation or
Restated By-laws or other proposal, action or transaction involving the
Company or any of its stockholders, which amendment or other proposal, action
or transaction would, or could reasonably be expected to, prevent, impede,
interfere with, hinder, frustrate, delay or nullify the Merger Agreement, the
consummation of the Merger or any of the other transactions contemplated by
the Merger Agreement or the consummation of the transactions contemplated by
this Agreement, or change in any manner the voting rights of the Company
Common Stock (collectively, "Frustrating Transactions").
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(ii) Such Stockholder shall, within five Business Days of a request
from Parent, irrevocably grant to, and appoint, Parent and individuals
designated by Parent in such request, or any of them, and any individual
designated in writing by any of them, and each of them individually, as such
Stockholder's proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of such Stockholder, to vote the Subject
Shares of such Stockholder, or grant a consent or approval in respect of the
Subject Shares of such Stockholder, in a manner consistent with this Section
3. Such Stockholder understands and acknowledges that Parent is entering into
the Merger Agreement in reliance upon such Stockholder's execution and
delivery of this Agreement (including this agreement to execute and deliver
such irrevocable proxy). Such Stockholder hereby affirms, and shall affirm in
such irrevocable proxy, that such irrevocable proxy is given in connection
with the execution of the Merger Agreement, and that such irrevocable proxy is
given to secure the performance of the duties of such Stockholder under this
Agreement. Such Stockholder hereby further affirms, and shall affirm in such
irrevocable proxy, that such irrevocable proxy is coupled with an interest and
may under no circumstances be revoked other than by termination of this
Agreement in accordance with it terms. Such irrevocable proxy shall provide
that such Stockholder ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done by virtue thereof, that such irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 212(e) of the DGCL and that such irrevocable proxy shall
automatically terminate upon the termination of this Agreement in accordance
with its terms.
(c) Other than as expressly permitted by this Agreement, such
Stockholder shall not (i) sell, transfer, pledge, assign or otherwise dispose
of (including by gift, bequest, appointment or otherwise) (collectively,
"Transfer"), or consent to or permit any Transfer of, any Subject Shares or
any interest therein, or enter into any contract, option or other arrangement
(including any profit sharing arrangements) with respect to the Transfer of
any Subject Shares or any interest therein, to any person (other than, if the
transactions contemplated by the Merger Agreement are consummated, by
operation of law in the Merger), (ii) enter into any voting arrangement with
respect to any Subject Shares, whether by proxy, voting agreement or otherwise
or (iii) take any action which would, or could reasonably be expected to,
result in a diminution of the voting power represented by any Subject Shares,
and shall not commit or agree to take any of the foregoing actions.
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(d) Such Stockholder shall not, nor shall such Stockholder authorize
or permit any of its affiliates (other than the Company) or any of its or
their directors, officers, employees, partners, investment bankers, attorneys
or other advisors or representatives to, directly or indirectly, (i) solicit,
initiate or encourage, or take any other action to facilitate, any inquiries
with respect to a potential Takeover Proposal or Frustrating Transaction or
the submission of any Takeover Proposal or Frustrating Transaction, (ii) enter
into any agreement with respect to any Takeover Proposal or Frustrating
Transaction or (iii) except as expressly permitted by Section 9, enter into,
continue or otherwise participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in any effort or
attempt by any person with respect to, any Takeover Proposal or Frustrating
Transaction. Such Stockholder promptly shall advise Parent orally and in
writing of any Takeover Proposal or Frustrating Transaction or inquiry made to
such Stockholder with respect to or that could reasonably be expected to lead
to a Takeover Proposal or Frustrating Transaction, the identity of the person
making or initiating any such Takeover Proposal, Frustrating Transaction or
inquiry and the material terms of any such Takeover Proposal, Frustrating
Transaction or inquiry. Such Stockholder shall keep Parent fully informed of
the status and details (including amendments or proposed amendments) of any
such Takeover Proposal, Frustrating Transaction or inquiry.
(e) Such Stockholder shall not, nor shall such Stockholder authorize
or permit any of its affiliates (other than the Company) or any of its or
their directors, officers, employees, partners, investment bankers, attorneys
or other advisors or representatives to, issue any press release or make any
other public statement with respect to this Agreement, the Merger Agreement,
the Merger or any of the other transactions contemplated by this Agreement or
the Merger Agreement without the prior written consent of Parent, except as
may be required by applicable law.
(f) Such Stockholder hereby waives any rights of appraisal, or
rights to dissent from the Merger, that such Stockholder may have, and agrees
not to commence or participate in, and to take all actions necessary to opt
out of any class in any class action with respect to, any claim, derivative or
otherwise, against the Company (or any of its respective successors) relating
to the negotiation, execution and delivery of this Agreement or the Merger
Agreement or the consummation of the Merger or any of the
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other transactions contemplated by this Agreement or the Merger Agreement.
(g) (i) In the event that the Merger Agreement shall have been
terminated under circumstances where Parent is or may become entitled to
receive the Termination Fee, such Stockholder shall pay to Parent on demand an
amount equal to all profit (determined in accordance with Section 3(g)(ii)) of
such Stockholder from the consummation of any Takeover Proposal that is
consummated, or with respect to which an Acquisition Agreement was entered
into, within 15 months after such termination. Any payment of profit under
this Section 3(g)(i) shall be paid in the same form as the consideration
received from the Takeover Proposal (and, if the consideration so received was
in more than one form, in the same proportion as the forms of consideration so
received).
(ii) For purposes of Section 3(g)(i), the profit of any Stockholder
from any Takeover Proposal shall equal (A) the aggregate consideration
received by such Stockholder pursuant to such Takeover Proposal, valuing any
non-cash consideration (including any residual interest in the Company) at its
fair market value as of the date of such consummation plus (B) the fair market
value, as of the date of disposition, of all Subject Shares of such
Stockholder disposed of after the termination of the Merger Agreement and
prior to the date of such consummation less (C) the aggregate consideration
that would have been issuable or payable to such Stockholder if he or she had
received the Merger Consideration pursuant to the Merger Agreement as executed
on the date hereof, valuing each Parent ADS at its fair market value as of the
date of first public announcement by the Company of its intention to terminate
the Merger Agreement as if the Merger had been consummated on the date of such
public announcement.
(iii) In the event that (A) prior to the Effective Time, a Takeover
Proposal shall have been made and (B) the Effective Time of the Merger shall
have occurred and Parent for any reason shall have increased the amount of
Merger Consideration payable over that set forth in the Merger Agreement as
executed on the date hereof (on a per share basis, the "Original Merger
Consideration"), such Stockholder shall pay to Parent on demand an amount
equal to the product of (1) the number of Subject Shares of such Stockholder
and (2) the excess of (x) the per share cash consideration or the per share
fair market value of any non- cash consideration, as the case may be, received
by such Stockholder as a result of the Merger determined as of the Effective
Time of the Merger, over (y) the fair market value
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of the Original Merger Consideration determined as of the date of the first
increase in the amount of the Original Merger Consideration. Any payment under
this Section 3(g)(iii) shall be paid in the same form as the Merger
Consideration received by such Stockholder as a result of the Merger (and, if
the consideration so received was in more than one form, in the same
proportion as the forms of consideration so received).
(iv) For purposes of this Section 3(g), the fair market value of any
non-cash consideration consisting of:
(A) securities listed on a national securities exchange or traded
on the Nasdaq National Market of The Nasdaq Stock Market, Inc.
("Nasdaq National Market") shall be equal to the average
closing price per share of such security as reported on such
exchange or Nasdaq National Market for the five trading days
prior to the date of determination; and
(B) consideration which is other than cash or securities of the type
specified in clause (A) of this Section 3(g)(iv) shall be
determined by a nationally recognized independent investment
banking firm mutually agreed upon by the parties within 10
Business Days of the event requiring selection of such banking
firm; provided, however, that if the parties are unable to
agree within two Business Days after the date of such event as
to the investment banking firm, then Parent, on the one hand,
and the Stockholders, on the other hand, shall each select one
firm, and those firms shall select a third investment banking
firm, which third firm shall make such determination; provided
further, that the fees and expenses of such investment banking
firm shall be borne equally by Parent, on the one hand, and the
Stockholders, on the other hand. The determination of
investment banking firm shall be binding upon the parties.
(v) Any payment of profit under Section 3(g)(i) or of amounts under
Section 3(g)(iii) shall (A) if payable in cash, be paid by wire transfer of
same day funds to an account designated by Parent and (B) if payable through a
transfer of securities, be paid through delivery of such securities, suitably
endorsed for transfer.
SECTION 4. Further Assurances. Each Stockholder shall, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further
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consents, documents and other instruments as Parent may reasonably request for
the purpose of effectuating the matters covered by this Agreement. No
Stockholder shall commit or agree to take any action inconsistent with the
transactions contemplated by this Agreement or the transactions contemplated
by the Merger Agreement.
SECTION 5. Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Subject Shares and shall be binding upon any person or entity to which legal
or beneficial ownership of such Subject Shares shall pass, whether by
operation of law or otherwise, including such Stockholder's heirs, guardians,
administrators or successors, and each Stockholder further agrees to take all
actions necessary to effectuate the foregoing. In the event of any stock
split, stock dividend, reclassification, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the capital stock of the Company, or the acquisition of additional
shares of capital stock of the Company or other voting securities of the
Company by any Stockholder (including through the exercise of any warrants,
stock options or similar instruments), the number of Subject Shares and the
total number of votes possessed thereby, in each case, set forth beside the
name of such Stockholder on Schedule A hereto shall be adjusted appropriately.
This Agreement and the representations, warranties, covenants, agreements and
obligations hereunder shall attach to any additional shares of capital stock
of the Company or other voting securities of the Company issued to or acquired
by any Stockholder (including through the exercise of any warrants, stock
options or similar instruments).
SECTION 6. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or
in part, by operation of law or otherwise by any of the parties hereto without
the prior written consent of the other parties, except that Parent may assign,
in its sole discretion, any of or all its rights, interests and obligations
under this Agreement to any direct or indirect wholly owned subsidiary of
Parent, but no such assignment shall relieve Parent of any of its obligations
under this Agreement. Any purported assignment in violation of this Section 6
shall be void. Subject to the preceding sentences of this Section 6, this
Agreement shall be binding upon, inure to the benefit of and be enforceable
by, the parties hereto and their respective permitted successors and assigns.
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SECTION 7. Termination. This Agreement shall terminate upon the
earlier of (i) the Effective Time and (ii) the termination of the Merger
Agreement in accordance with its terms. Notwithstanding the foregoing, Section
3(g) shall survive the consummation of the Merger or the termination of the
Merger Agreement. No such termination of this Agreement shall relieve any
party hereto from any liability for any breach of any provision of this
Agreement.
SECTION 8. General Provisions. (a) Amendments. This Agreement may
not be amended except by an instrument in writing signed on behalf of Parent
and each of the Stockholders affected thereby.
(b) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally, telecopied (which is confirmed) or sent by overnight
courier (providing proof of delivery) to Parent in accordance with Section
8.02 of the Merger Agreement and to the Stockholders at their respective
addresses set forth on Schedule A hereto (or at such other address for a party
as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to a
Section, Subsection or Schedule, such reference shall be to a Section or
Subsection of, or a Schedule to, this Agreement unless otherwise indicated.
The 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". The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement. The definitions
contained in this Agreement are applicable to the singular as well as the
plural forms of such terms and to the masculine as well as to the feminine and
neuter genders of such term. Any agreement, instrument or statute defined or
referred to herein or in any agreement or instrument that is referred to
herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession
of comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a person are also to its
permitted successors and assigns. Terms used herein that are defined under
GAAP are used herein as so defined.
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(d) Counterparts; Effectiveness. 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 hereto and delivered to the other parties. The
effectiveness of this Agreement shall be conditioned upon the execution and
delivery of the Merger Agreement by each of the parties thereto.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i) constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties hereto with respect to the subject
matter of this Agreement and (ii) is not intended to confer upon any person
other than the parties hereto any rights or remedies.
(f) 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.
(g) Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in an acceptable manner to the end
that the transactions contemplated by this Agreement are fulfilled to the
extent possible.
SECTION 9. Stockholder Capacity. No person executing this Agreement
who is or becomes during the term of this Agreement an officer or director of
the Company makes (or shall be deemed to have made) any agreement or
understanding herein in his or her capacity as such officer or director.
Without limiting the generality of the foregoing, each Stockholder signs
solely in his capacity as the record and beneficial owner of such
Stockholder's Subject Shares and nothing herein, including the provisions of
Section 3(d), shall limit or affect any action taken by a Stockholder in his
capacity as an officer or director of the Company to the extent such action is
specifically permitted by the Merger Agreement.
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SECTION 10. Enforcement. The parties hereto agree that irreparable
damage would occur and the parties would not have adequate remedy at law in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties hereto shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any Delaware state
court or any Federal court located in the State of Delaware, this being in
addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any Delaware state court or any Federal court located
in the State of Delaware in the event any dispute arises out of or under or
relates to this Agreement or any of the transactions contemplated by this
Agreement, (b) agrees that it shall not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such
court, (c) agrees that it shall not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any
court other than a Delaware state court or a Federal court located in the
State of Delaware, (d) waives any right to trial by jury with respect to any
action relating to this Agreement or any of the transactions contemplated by
this Agreement in any Delaware state court or any Federal court located in the
State of Delaware and (e) hereby unconditionally waives and agrees not to
plead or claim in any such court that any such action brought in any such
court has been brought in an inconvenient forum. Parent hereby irrevocably
appoints CT Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its
agent for service of process in connection with any action brought against it
relating to this Agreement and the Merger Agreement.
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IN WITNESS WHEREOF, Parent has caused this Agreement to be signed by
its officer thereunto duly authorized and each Stockholder has signed this
Agreement, all as of the date first written above.
SCHERING AKTIENGESELLSCHAFT,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice Chairman
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-Laebe
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-Laebe
Title: Legal Counsel
▇▇▇▇ ▇. ▇▇▇▇▇,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee of
the Jordan ▇. ▇▇▇▇▇ Trust
Agreement dated 1/31/92,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
by /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
15
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
H. ▇▇▇▇ ▇▇▇▇▇▇▇,
by /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and H. ▇▇▇▇
▇▇▇▇▇▇▇, as trustees of the
▇▇▇▇▇▇▇ 1997 Children's Trust-N
U/T/A dated 8/22/97,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
by /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and H. ▇▇▇▇
▇▇▇▇▇▇▇, as trustees of the
Talisin ▇. ▇▇▇▇▇▇▇ Trust-N
U/T/A dated 8/22/97,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
by /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇
16
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and H. ▇▇▇▇
▇▇▇▇▇▇▇, as trustees of the
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust-N U/T/A
dated 8/22/97,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
by /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇
SCHEDULE A
Number and Class
Name and Address of Subject Total Number
of Stockholder Shares Owned of Votes
▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ 1,177,968 1,177,968
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee of 76,000 76,000
the Jordan ▇. ▇▇▇▇▇ Trust
Agreement dated 1/31/92
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and 519,207 519,207
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
P.O. Box 3181 (including 38,000
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shares held by
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ minor child)
H. ▇▇▇▇ ▇▇▇▇▇▇▇ and 1,432,007 1,432,007
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇. ▇▇▇▇ 72,200 72,200
▇▇▇▇▇▇▇, as Trustees of the
▇▇▇▇▇▇▇ 1997 Children's Trust-N
U/T/A dated 8/22/97
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇. ▇▇▇▇ 142,500 142,500
▇▇▇▇▇▇▇, as Trustees of the
Talisin ▇. ▇▇▇▇▇▇▇ Trust-N
U/T/A dated 8/22/97
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇. ▇▇▇▇ 142,500 142,500
▇▇▇▇▇▇▇, as Trustees of the
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust-N U/T/A
dated 8/22/97
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇