EXHIBIT 2.1
================================================================================
AGREEMENT AND PLAN OF MERGER
among
PFIZER INC.,
WAGNER ACQUISITION CORP.
and
WYETH
Dated as of January 25, 2009
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER
Section 1.1 The
Merger.....................................................1
Section 1.2
Closing........................................................1
Section 1.3
Effective
Time.................................................2
Section 1.4
Effects of the
Merger..........................................2
Section 1.5
Bylaws.........................................................2
Section 1.6
Certificate of
Incorporation...................................2
Section 1.7
Officers and
Directors.........................................2
Section 1.8
Effect on Capital
Stock........................................2
Section 1.9
Company Stock Options and Other Equity-Based
Awards............4
Section 1.10 Certain
Adjustments............................................7
Section 1.11 Appraisal
Rights...............................................7
ARTICLE II
EXCHANGE OF SHARES
Section 2.1
Exchange
Agent.................................................8
Section 2.2
Exchange
Procedures............................................8
Section 2.3
Distributions with Respect to Unexchanged
Shares..............10
Section 2.4
No Further Ownership
Rights...................................10
Section 2.5 No
Fractional Shares of Parent Common Stock...................10
Section 2.6
Termination of Exchange
Fund..................................11
Section 2.7 No
Liability..................................................11
Section 2.8
Investment of the Exchange
Fund...............................11
Section 2.9 Lost
Certificates.............................................12
Section 2.10
Withholding
Rights............................................12
Section 2.11 Further
Assurances............................................12
Section 2.12 Stock
Transfer Books..........................................12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.1
Organization, Good Standing and
Qualification.................13
Section 3.2
Capital
Structure.............................................13
Section 3.3
Corporate
Authority...........................................15
Section 3.4
Governmental Filings; No Violations,
Etc......................16
Section 3.5
Company Reports; Financial
Statements.........................17
Section 3.6
Absence of Certain
Changes....................................19
Section 3.7
Litigation....................................................19
Section 3.8
Compliance with
Laws..........................................19
Section 3.9
Properties....................................................20
Section 3.10
Contracts.....................................................20
Section 3.11 Employee
Benefit Plans........................................21
Section 3.12 Labor
Matters.................................................24
Section 3.13
Tax...........................................................24
Section 3.14
Intellectual
Property.........................................25
Section 3.15
Environmental
Matters.........................................26
Section 3.16
Insurance.....................................................27
Section 3.17
Regulatory
Compliance.........................................27
Section 3.18
Interested Party
Transactions.................................28
Section 3.19 Brokers
and Finders...........................................28
Section 3.20 No
Additional Representations.................................28
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Section 4.1
Organization, Good Standing and
Qualification.................30
Section 4.2
Capital
Structure.............................................30
Section 4.3
Corporate
Authority...........................................31
Section 4.4
Governmental Filings; No Violations;
Etc......................32
Section 4.5
Parent Reports; Financial
Statements..........................32
Section 4.6
Litigation....................................................34
Section 4.7
Brokers and
Finders...........................................34
Section 4.8 No
Business Activities........................................35
Section 4.9
Board
Approval................................................35
Section 4.10 Vote
Required.................................................35
Section 4.11
Financing.....................................................35
Section 4.12 Absence
of Certain Changes....................................36
Section 4.13
Compliance with
Laws..........................................36
Section 4.14 Certain
Agreements............................................36
Section 4.15
Tax...........................................................36
Section 4.16
Intellectual
Property.........................................37
Section 4.17
Regulatory
Compliance.........................................37
Section 4.18 No
Additional Representations.................................38
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 5.1
Ordinary
Course...............................................39
Section 5.2
Governmental
Filings..........................................45
Section 5.3
Restrictions on
Parent........................................45
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1
Preparation of Proxy Statement; Stockholders
Meeting..........47
Section 6.2
Access to
Information/Employees...............................49
Section 6.3
Reasonable Best
Efforts.......................................49
Section 6.4
Acquisition
Proposals.........................................52
Section 6.5
Employee Benefits
Matters.....................................55
Section 6.6 Fees
and Expenses.............................................57
Section 6.7
Directors' and Officers' Indemnification and
Insurance........57
Section 6.8
Public
Announcements..........................................59
Section 6.9
Listing of Shares of Parent Common Stock and Parent
Convertible Preferred Stock..................................60
Section 6.10
Dividends.....................................................60
Section 6.11 Section
16 Matters............................................60
Section 6.12 Company
Cooperation on Certain Matters........................60
Section 6.13 Financing
Cooperation.........................................60
Section 6.14
Convertible Debentures and Company Convertible Preferred
Stock.63
Section 6.15 Board
Representation..........................................64
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1
Conditions to Each Party's Obligation to Effect the
Merger....64
Section 7.2
Additional Conditions to Obligations of Parent and Merger
Sub.65
Section 7.3
Additional Conditions to Obligations of the
Company...........66
ARTICLE VIII
TERMINATION AND AMENDMENT
Section 8.1
General.......................................................67
Section 8.2
Obligations in Event of
Termination...........................69
Section 8.3
Amendment.....................................................71
Section 8.4
Extension;
Waiver.............................................71
ARTICLE IX
GENERAL PROVISIONS
Section 9.1
Non-Survival of Representations, Warranties and
Agreements....72
Section 9.2
Notices.......................................................72
Section 9.3
Headings......................................................73
Section 9.4
Counterparts..................................................74
Section 9.5
Entire Agreement; No Third-Party
Beneficiaries................74
Section 9.6
Governing
Law.................................................74
Section 9.7
Severability..................................................74
Section 9.8
Assignment....................................................74
Section 9.9
Submission to Jurisdiction;
Waivers...........................74
Section 9.10 Specific
Performance..........................................75
Section 9.11 Waiver of
Jury Trial..........................................75
Section 9.12
Interpretation................................................75
Section 9.13
Definitions...................................................76
<PAGE>
LIST OF EXHIBITS
Exhibit Title
A
Bylaws of the Surviving Corporation
B
Certificate of Incorporation of the Surviving Corporation
<PAGE>
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger, dated as of January 25, 2009
(this
"Agreement"), among PFIZER INC., a Delaware corporation ("Parent"),
WAGNER
ACQUISITION CORP., a Delaware corporation and a direct wholly-owned
subsidiary
of Parent ("Merger Sub"), and WYETH, a Delaware corporation (the
"Company" and
collectively with Parent and Merger Sub, the "parties").
W I T N E S S E T H:
WHEREAS, the Board of Directors of each of the Company and
Parent
deem it advisable and in the best interests of their respective
corporation and
stockholders that the Company and Parent engage in a business
combination; and
WHEREAS, the combination of the Company and Parent shall be
effected
by, and subject to, the terms of this Agreement through a merger as
set forth
below;
NOW, THEREFORE, in consideration of the foregoing and the
respective
representations, warranties, covenants and agreements set forth in
this
Agreement, and intending to be legally bound hereby, the parties
agree as
follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the
conditions
set forth in this Agreement, and in accordance with the General
Corporation Law
of the State of Delaware (the "DGCL"), Merger Sub shall be merged
with and into
the Company at the Effective Time (the "Merger"). Following the
Merger, the
separate corporate existence of Merger Sub shall cease and the
Company shall
continue as the surviving corporation (the "Surviving
Corporation").
Section 1.2 Closing. Upon the terms and subject to the
conditions
set forth in this Agreement, the closing of the Merger (the
"Closing") will take
place at 10:00 a.m. New York City time on the date that is the
fifth (5th)
Business Day following the satisfaction or (subject to applicable
Law) waiver of
the conditions set forth in Article VII (excluding conditions that,
by their
nature, cannot be satisfied until the Closing Date, but subject to
the
fulfillment or waiver of those conditions); provided, however, that
(i) in the
event that the proceeds from the Financing (or any alternative
financing) are
unavailable on such fifth (5th) Business Day, the Closing will take
place on the
earlier of (A) the date that is the tenth (10th) Business Day
following the date
on which Parent receives the Election Notice from the Company and
(B) December
31, 2009, and (ii) in no event shall Parent be obligated to
consummate the
Closing prior to July 31, 2009, unless this Agreement has been
previously
terminated pursuant to its terms or unless another time or date is
agreed to in
writing by the parties (the actual time and date of the Closing
being referred
to herein as the "Closing Date"). The Closing shall be held at the
offices of
Cadwalader, Wickersham & Taft LLP, One World Financial Center,
New York, New
York, 10281, or at such other place as the parties may agree.
Section 1.3 Effective Time. At the Closing, the Company shall
(i)
file a certificate of merger (the "Certificate of Merger") in such
form as is
required by, and executed and acknowledged in accordance with, the
relevant
provisions of the DGCL and (ii) make all other filings or
recordings required
under the DGCL in connection with the Merger. The Merger shall
become effective
at such time as the Certificate of Merger is duly filed with the
Delaware
Secretary of State or at such subsequent time as Parent and the
Company shall
agree and as shall be specified in the Certificate of Merger (the
date and time
the Merger becomes effective being the "Effective Time").
Section 1.4 Effects of the Merger. At and after the Effective
Time,
the Merger will have the effects set forth herein and in the DGCL.
Without
limiting the generality of the foregoing, and subject thereto, at
the Effective
Time all the property, rights, privileges, immunities, powers and
franchises of
the Company and Merger Sub shall be vested in the Surviving
Corporation, and all
debts, liabilities and duties of the Company and Merger Sub shall
become the
debts, liabilities and duties of the Surviving Corporation.
Section 1.5 Bylaws. The bylaws of Merger Sub, as in effect
immediately prior to the Effective Time, shall be the bylaws of the
Surviving
Corporation and shall read in their entirety as set forth in
Exhibit A hereto
until thereafter changed or amended as provided therein or by
applicable Law
(subject to Section 6.7).
Section 1.6 Certificate of Incorporation. At the Effective Time,
the
certificate of incorporation of the Company shall be amended so as
to read in
its entirety as set forth in Exhibit B hereto and, as so amended,
shall be the
certificate of incorporation of the Surviving Corporation until
thereafter
amended in accordance with its terms and as provided by applicable
Law (subject
to Section 6.7).
Section 1.7 Officers and Directors. From and after the
Effective
Time, until their successors are duly elected or appointed and
qualified in
accordance with applicable Law, (i) the directors of Merger Sub
immediately
prior to the Effective Time shall be the directors of the Surviving
Corporation
and (ii) the officers of the Company immediately prior to the
Effective Time
shall be the officers of the Surviving Corporation.
Section 1.8 Effect on Capital Stock.
(a) At the Effective Time, by virtue of the Merger and without
any
action on the part of the holder thereof, each share of common
stock, par value
$0.01 per share, of Merger Sub issued and outstanding immediately
prior to the
Effective Time, shall be converted into one validly issued, fully
paid and
non-assessable share of common stock, par value $0.01 per share, of
the
Surviving Corporation.
(b) At the Effective Time, by virtue of the Merger and without
any
action on the part of the holder thereof, each share of common
stock, par value
$0.33 1/3 per share, of the Company ("Company Common Stock") issued
and
outstanding immediately prior to the Effective Time (other than
Restricted
Stock, which shall be treated in accordance with Section 1.9(d),
and shares of
Company Common Stock and Company Convertible Preferred Stock owned
directly or
indirectly by Parent or held directly or indirectly by the Company,
all of which
shall be canceled as provided in Section 1.8(e)), shall, except as
provided in
Section 1.11 with respect to the shares of Company Common Stock as
to which
appraisal rights have been exercised, be converted into the right
to receive (i)
0.985 (as may be adjusted pursuant to this Section 1.8, the
"Exchange Ratio")
validly issued, fully paid and non-assessable shares of common
stock ("Parent
Common Stock"), par value $0.05 per share, of Parent (unless the
aggregate
number of shares of Parent Common Stock to be issued in the Merger
pursuant to
this Section 1.8 and Section 1.9, together with the shares, if any,
of Parent
Common Stock issuable upon conversion of the Parent Convertible
Preferred Stock
and the Floating Rate Convertible Senior Debentures Due 2024 (the
"Convertible
Debentures"), in each case to the extent shares of Parent
Convertible Preferred
Stock and/or the Convertible Debentures are issued and outstanding
as of the
Effective Time, would exceed 19.9% of Parent's issued and
outstanding shares of
Parent Common Stock immediately prior to the Effective Time (19.9%
of such
issued and outstanding shares rounded down to the nearest whole
share, the
"Maximum Share Number") in which case the Exchange Ratio shall be
reduced (the
amount of such reduction, the "Exchange Ratio Reduction Number") to
the minimum
extent necessary such that the number of shares of Parent Common
Stock issuable
in the Merger pursuant to this Section 1.8 and Section 1.9,
together with the
shares, if any, of Parent Common Stock issuable upon conversion of
the Parent
Convertible Preferred Stock and the Convertible Debentures, equals
the Maximum
Share Number) (the "Stock Consideration") and (ii) $33.00 in cash
without
interest plus, if the Exchange Ratio is adjusted pursuant to the
preceding
clause (i), the amount in cash equal to the Exchange Ratio
Reduction Number
multiplied by the Parent Share Cash Value (the "Cash
Consideration"). Together
with any cash in lieu of fractional shares of Parent Common Stock
to be paid
pursuant to Section 2.5, the Stock Consideration and Cash
Consideration are
collectively referred to herein as the "Common Stock Merger
Consideration."
(c) At the Effective Time, by virtue of the Merger and without
any
action on the part of the holder thereof, each share of the $2
Convertible
Preferred Stock, par value $2.50 per share, of the Company
("Company Convertible
Preferred Stock"), issued and outstanding immediately prior to the
Effective
Time, if any, shall be converted into the right to receive one
share of a new
series of convertible preferred stock ("Parent Convertible
Preferred Stock") to
be issued by Parent at the Effective Time and to be designated as
Parent
Convertible Preferred Stock (the "Preferred Stock Merger
Consideration", and
collectively with the Common Stock Merger Consideration, the
"Merger
Consideration") having the same powers, designations, preferences
and rights (to
the fullest extent practicable) as the shares of Company
Convertible Preferred
Stock (it being understood that the number of shares of Parent
Common Stock into
which each share of Parent Convertible Preferred Stock shall be
convertible will
equal the product of (i) the number of shares of Common Stock into
which a share
of Company Convertible Preferred Stock is convertible immediately
prior to the
Effective Time and (ii) the sum of the (A) the Exchange Ratio and
(B) the
quotient of the Cash Consideration and the Parent Share Cash
Value). Prior to
the Closing, Parent shall take all corporate action necessary to
reserve for
issuance a sufficient number of shares of Parent Common Stock for
delivery upon
conversion of the Parent Convertible Preferred Stock.
(d) Except as set forth in Section 1.8(e), Section 1.9(d) and
Section 1.11, as a result of the Merger and without any action on
the part of
the holders thereof, at the Effective Time, all shares of
outstanding Company
Common Stock and Company Convertible Preferred Stock, if any, shall
cease to be
outstanding and shall be canceled and retired and shall cease to
exist, and each
holder of a certificate or certificates which immediately prior to
the Effective
Time represented any such shares of Company Common Stock ("Common
Certificates")
or of Company Convertible Preferred Stock ("Preferred Certificates"
and together
with the Common Certificates, the "Certificates") or book-entry
shares which
immediately prior to the Effective Time represented shares of
Company Common
Stock ("Common Book-Entry Shares") or shares of Company Convertible
Preferred
Stock ("Preferred Book-Entry Shares" and together with the Common
Book-Entry
Shares, the "Book-Entry Shares") shall thereafter cease to have any
rights with
respect to such shares of Company Common Stock or Company
Convertible Preferred
Stock, respectively, except as provided herein or by Law.
(e) Each share of Company Common Stock and Company Convertible
Preferred Stock owned by Parent or held by the Company at the
Effective Time
including any Reacquired Shares shall, by virtue of the Merger,
cease to be
outstanding and shall be canceled and retired and no stock of
Parent or other
consideration shall be delivered in exchange therefor.
Section 1.9 Company Stock Options and Other Equity-Based
Awards.
(a) By virtue of the Merger, each option to purchase shares of
Company Common Stock under the applicable Company Stock Plans that
is
outstanding immediately prior to the Effective Time, whether or not
then vested
and exercisable (collectively, the "Options" or "Company Stock
Options") shall
become fully vested and exercisable immediately prior to, and then
shall be
canceled at, the Effective Time, and the holder thereof shall,
subject to
Section 1.9(f), be entitled to receive an amount in cash equal to
the product of
(i) the excess, if any, of (1) the Per Share Amount over (2) the
exercise price
per share of Company Common Stock subject to such Option, with the
aggregate
amount of such payment rounded up to the nearest cent, and (ii) the
total number
of shares of Company Common Stock subject to such fully vested and
exercisable
Option as in effect immediately prior to the Effective Time (the
"Option
Consideration"). The Option Consideration shall be paid in a lump
sum as soon as
practicable after the Effective Time but in no event later than ten
(10)
Business Days following the Effective Time.
(b) By virtue of the Merger, each restricted stock unit,
representing a right to receive one share of Company Common Stock
(an "RSU")
granted by the Company under any Company Stock Plan, including each
"performance
share award" denominated in RSUs (but excluding any DSU (as defined
in Section
1.9(c)), which is outstanding immediately prior to the Effective
Time shall
become fully vested (except that with respect to any RSU, which by
the terms of
the award agreement pursuant to which it was granted provides for a
lesser
percentage of such RSUs to become vested upon the consummation of
the Merger,
shall only become vested as to such lesser percentage), and then
shall be
canceled at the Effective Time, and the holder of such vested RSU
shall, subject
to Section 1.9(f), be entitled to receive an amount in cash equal
to the Per
Share Amount in respect of each share of Company Common Stock into
which the
vested portion of the RSU would otherwise be convertible (the
"RSU
Consideration"), which shall be paid in a lump sum as soon as
practicable after
the Effective Time but in no event later than ten (10) Business
Days following
the Effective Time. Notwithstanding the foregoing, any RSU that
constitutes,
either in whole or in part, a deferral of compensation subject to
Section 409A
of the Code (the "409A Deferred RSUs"), shall be treated in the
appropriate
manner provided in (i) or (ii) below, as applicable:
(i) Each 409A Deferred RSU that first becomes vested as a result
of
the
transactions contemplated under this Agreement (the "409A
RSUs")
shall, as
of the Effective Time, become a vested right to receive, in
respect of
each share of Company Common Stock into which the 409A RSUs
would
otherwise be convertible, the Common Stock Merger Consideration
(the
"409A RSU
Consideration"); provided, however, that all such 409A RSU
Consideration shall be deposited in a grantor trust that satisfies
the
requirements of Revenue Procedure 92-64 (the "Grantor Trust") and
that
will serve
as the funding source for the Surviving Corporation to satisfy
its
obligations to pay each former holder of a 409A Deferred RSU
the
amount of
409A RSU Consideration due to such holder at such time(s) and
in
such
manner as may be provided under the terms of the applicable
Company
Stock
Plan, award agreement, deferral election form and/or any other
payment
election form, applicable to such holder's respective 409A RSU
(collectively, the "Deferred Payment Terms"). Additionally, during
the
period
that any such 409A RSU Consideration remains in such Grantor
Trust,
(x) the
portion of the 409A RSU Consideration that is comprised of the
Cash
Consideration shall accrue interest at the "Market Rate" (as
such
term is
defined under the Wyeth 2005 (409A) Deferred Compensation Plan
(effective
January 1, 2005) (the "Wyeth 2005 (409A) DCP") and (y) the
portion of
the 409A RSU Consideration that is comprised of the Stock
Consideration shall accrue, in additional shares of Parent Common
Stock
(with any
cash dividends being reinvested into shares of Parent Common
Stock).
(ii) In respect of (x) each 409A Deferred RSU that has first
become
vested in
accordance with its terms, other than as a result of the
transactions contemplated under this Agreement and (y) any RSU that
would
have
constituted, either in whole or in part, a deferral of
compensation
subject to
Section 409A of the Code, but for such RSU having been earned
and vested
prior to December 31, 2004 (and any dividend equivalents that
have been
credited with respect to such RSU) (any of the foregoing, a
"Vested
Deferred RSU") for which there is outstanding a corresponding
share of
Company Common Stock held in the Wyeth Restricted Stock Trust
(the
"Stock Trust") for the purpose of satisfying the Company's
obligations to deliver shares of Company Common Stock in respect of
such
Vested
Deferred RSU (the "Deferred RSU Shares") in accordance with the
applicable
Deferred Payment Terms, immediately upon the Effective Time,
each such
Deferred RSU Share shall be converted into Common Stock Merger
Consideration pursuant to Section 1.8(b) above (the "Vested
Deferred RSU
Consideration"); provided, however, that all such Vested Deferred
RSU
Consideration shall be held in the Stock Trust and any payments due
in
respect of
such Deferred RSU Shares shall be as set forth under the
applicable
Deferred Payment Terms; and provided, further, that, during the
period
that any such Vested Deferred RSU Consideration is held in the
Stock
Trust (x) the portion of the Vested Deferred RSU Consideration
representing the Cash Consideration shall accrue interest at the
Market
Rate and
(y) the portion of the Vested Deferred RSU Consideration
representing the Stock Consideration shall accrue, in additional
shares of
Parent
Common Stock, dividends in the same amount(s) and at the same
time(s) as
dividends are paid on Parent Common Stock.
(c) By virtue of the Merger and pursuant to the terms of the
Company's 2008 Non-Employee Director Stock Incentive Plan or 2006
Non-Employee
Director Stock Incentive Plan (together, the "Director DSU Plans"),
each
deferred stock unit, representing a right to receive one share of
Company Common
Stock granted by the Company under the Director DSU Plans (a "DSU")
which is
outstanding immediately prior to the Effective Time shall become
vested and then
canceled at the Effective Time, and the holder thereof shall,
subject to Section
1.9(f), be entitled to receive (i) an amount in cash equal to the
Per Share
Amount in respect of each share of Company Common Stock subject to
the DSU
(including shares attributable to dividend equivalents accrued on
such DSU and
converted into additional shares of Company Common Stock subject to
such DSU),
and (ii) the amount in cash equal to any dividend equivalents then
credited to
the holder's DSU account which have not yet been converted into
shares of
Company Common Stock, all in accordance with the Director DSU Plans
(the "DSU
Consideration"), which shall be paid in a lump sum as soon as
practicable after
the Effective Time but in no event later than ten (10) Business
Days following
the Effective Time. In addition, and pursuant to the terms of the
Company's
Directors' Deferral Plan (the "Director Deferral Plan"), effective
as of the
Effective Time, each phantom share of Common Stock credited to a
participant's
account thereunder (including phantom shares attributable to
dividend
equivalents) shall be converted into the right to receive an amount
in cash
equal to the Per Share Amount (such amount, the "Director Deferral
Amount").
Such Director Deferral Amounts shall, to the extent provided under
the Director
Deferral Plan, be paid out in a lump sum immediately following the
Effective
Time (but in no event later than ten (10) Business Days following
the Effective
Time); provided, however, that any such other Director Deferral
Amounts (the
"Grandfathered Amounts") that do not, under the terms of the
Director Deferral
Plan, become payable immediately upon the Effective Time shall
instead be paid
out in accordance with the applicable payment schedules provided
under the
Director Deferral Plan; provided, further, that for so long as any
Grandfathered
Amounts remain in the accounts maintained under the Director
Deferral Plan, such
amounts shall accrue an amount of deemed interest at the "Company
Credit" rate
(as such term is defined in such plan).
(d) By virtue of the Merger and pursuant to the terms of the
1994
Restricted Stock Plan for Non-Employee Directors (the "1994 Plan"),
each
restricted share of Company Common Stock granted by the Company
under the 1994
Plan that is either unvested, or vested but held in the Stock
Trust
(collectively, the "Restricted Stock") that is outstanding
immediately prior to
the Effective Time shall, to the extent not vested, vest as of the
Effective
Time, and at the Effective Time, the holder of all of the foregoing
Restricted
Stock shall, subject to Section 1.9(f), be entitled to receive an
amount in cash
equal to the Per Share Amount in cancellation of each share of
Restricted Stock
previously held under such Company Stock Plan (the "Restricted
Stock
Consideration"). The Restricted Stock Consideration shall be paid
to such
holders as soon as practicable after the Effective Time but in no
event later
than ten (10) Business Days following the Effective Time.
(e) As of the Effective Time, each phantom share of Company
Common
Stock credited to a participant account under any of the Wyeth
Supplemental
Employee Savings Plan (amended and restated effective as of January
1, 2005),
the Wyeth 2005 (409A) DCP and the Wyeth Deferred Compensation Plan,
amended and
restated as of November 20, 2003 (and further amended January 1,
2005)
(collectively, the "Company Deferred Equity Unit Plans") shall be
converted into
the right to receive an amount equal to the Common Stock Merger
Consideration
(the "Deferred Equity Unit Amount" ); provided, further, however,
that the Cash
Consideration component of such Deferred Equity Unit Amount shall
accrue
interest at the Market Rate, unless and until all or any portion of
such
notional Cash Consideration component of the Deferred Equity Unit
Amount is
notionally invested in another investment option, to the extent
provided for
under any Deferred Equity Unit Plan, and the Stock Consideration
component of
such Deferred Equity Unit Amount shall earn dividend equivalents in
the same
manner as would otherwise be earned under the applicable Company
Deferred Equity
Unit Plan. All amounts payable under the Deferred Equity Unit Plans
(including
the Deferred Equity Unit Amount) shall be paid to participants in
accordance
with the terms of the applicable Deferred Payment Terms. Solely
with respect to
the Wyeth Management Incentive Plan, as amended through December 5,
2007 (the
"MIP"), each right to receive a share of Company Common Stock
outstanding
thereunder as of the Effective Time shall be converted into the
right to receive
the Common Stock Merger Consideration, to be paid to participants
therein in
accordance with and subject to the terms of the MIP.
(f) All amounts payable pursuant to this Section 1.9 shall be
reduced by any required withholding of taxes in accordance with
Section 2.10 and
shall, except as otherwise provided in this Section 1.9, be paid
without
interest.
(g) Any such amounts representing Option Consideration, RSU
Consideration, 409A RSU Consideration, Vested Deferred RSU
Consideration, DSU
Consideration, Restricted Stock Consideration or the Director
Deferred Amounts
(and amounts due under the MIP) shall be paid by Parent or the
Surviving
Corporation, and any such amounts paid by the Surviving Corporation
shall be
reimbursed promptly by Parent to the Surviving Corporation
following the
Effective Time.
(h) Prior to the Effective Time, the Board of Directors of the
Company (or the appropriate committee thereof) shall, and such
Board of
Directors (or the appropriate committee thereof) shall cause the
Company to, use
its commercially reasonable efforts to take all actions reasonably
required to
effectuate the provisions of this Section 1.9.
Section 1.10 Certain Adjustments. If, between the date of this
Agreement and the Effective Time, the outstanding Parent Common
Stock or Company
Common Stock shall have been changed into a different number of
shares or
different class by reason of any reclassification,
recapitalization, stock
split, split-up, combination or exchange of shares or a stock
dividend or
dividend payable in any other securities shall be declared with a
record date
within such period, or any similar event shall have occurred, the
Common Stock
Merger Consideration shall be appropriately adjusted to provide to
the holders
of Company Common Stock the same economic effect as contemplated by
this
Agreement prior to such event.
Section 1.11 Appraisal Rights.
(a) Notwithstanding anything in this Agreement to the contrary,
shares of Company Common Stock outstanding immediately prior to the
Effective
Time and held by a holder who has not voted in favor of the
adoption of this
Agreement and who has demanded appraisal for such shares of Company
Common Stock
in accordance with the DGCL shall not be converted into the right
to receive the
Common Stock Merger Consideration unless such holder fails to
perfect or
withdraws or otherwise loses such holder's right to appraisal in
accordance with
the DGCL. If, after the Effective Time, such holder fails to
perfect or
withdraws or loses such holder's right to appraisal, such shares of
Company
Common Stock shall be treated as if they had been converted into,
and exchanged
for, as of the Effective Time, the right to receive the Common
Stock Merger
Consideration.
(b) The Company shall give Parent (i) prompt notice of any
demands
for appraisal received by the Company, withdrawals of such demands,
and any
other instruments served pursuant to Section 262 of the DGCL and
received by the
Company and (ii) the opportunity to direct all negotiations and
proceedings with
respect to demands for appraisal under the DGCL. The Company shall
not, except
with the prior written consent of Parent, make any payment with
respect to any
demands for appraisal or offer to settle or settle any such
demands.
ARTICLE II
EXCHANGE OF SHARES
Section 2.1 Exchange Agent. Prior to the Effective Time, Parent
shall appoint a commercial bank or trust company to act as exchange
agent
hereunder (which entity shall be reasonably acceptable to the
Company) for the
purpose of exchanging Certificates and Book-Entry Shares for the
Merger
Consideration (the "Exchange Agent"). At or prior to the Effective
Time, Parent
shall deposit with the Exchange Agent, (a) in trust for the benefit
of holders
of shares of Company Common Stock, Common Book-Entry Shares (or
certificates if
requested) representing the Parent Common Stock issuable, and cash
in U.S.
dollars in an amount sufficient to pay the Cash Consideration
payable, pursuant
to Section 1.8 in exchange for outstanding shares of Company Common
Stock, and
(b) in trust for the benefit of holders of shares of Company
Convertible
Preferred Stock, Preferred Book-Entry Shares (or certificates if
requested)
representing the Parent Convertible Preferred Stock issuable
pursuant to Section
1.8 in exchange for outstanding shares of Company Convertible
Preferred Stock.
Parent agrees to make available directly or indirectly to the
Exchange Agent
from time to time as needed, any cash in lieu of fractional shares
of Parent
Common Stock to be issued or paid in consideration therefor
pursuant to Section
2.5 of this Agreement and any dividends or distributions to which
such holder is
entitled pursuant to Section 2.3 of this Agreement. Any cash,
shares of Parent
Common Stock and Parent Convertible Preferred Stock deposited with
the Exchange
Agent shall hereinafter be referred to as the "Exchange Fund."
Notwithstanding
anything herein to the contrary, the exchange procedures described
in this
Article II shall not apply to Restricted Stock and the Restricted
Stock
Consideration and the Exchange Agent shall not act as exchange
agent for the
Restricted Stock.
Section 2.2 Exchange Procedures.
(a) Promptly after the Effective Time, and in any event not
later
than the fifth (5th) Business Day following the Effective Time, the
Surviving
Corporation shall cause the Exchange Agent to mail to each holder
of record of a
Certificate (i) a letter of transmittal which shall specify that
delivery shall
be effected, and risk of loss and title to the Certificates shall
pass, only
upon proper delivery of the Certificates to the Exchange Agent, and
which letter
shall be in customary form and have such other provisions as Parent
may
reasonably specify (such letter to be reasonably acceptable to the
Company prior
to the Effective Time) and (ii) instructions for effecting the
surrender of such
Certificates (or effective affidavits of loss in lieu thereof) in
exchange for
the applicable Merger Consideration, any cash in lieu of fractional
shares of
Parent Common Stock to be issued or paid in consideration therefor
pursuant to
Section 2.5 of this Agreement and any dividends or distributions to
which such
holder is entitled pursuant to Section 2.3 of this Agreement. Upon
surrender of
a Certificate to the Exchange Agent together with such letter of
transmittal,
duly executed and completed in accordance with the instructions
thereto, and
such other documents as may reasonably be required by the Exchange
Agent, the
holder of such Certificate shall be entitled to receive in exchange
therefor:
(i) in the case of holders of Common Certificates (A) one or
more
shares of
Parent Common Stock (which shall be in uncertificated
book-entry
form
unless a physical certificate is requested) representing, in
the
aggregate,
the whole number of shares that such holder has the right to
receive
pursuant to Section 1.8 (after taking into account all shares
of
Company
Common Stock then held by such holder) and (B) cash in the
amount
equal to
the Cash Consideration that such holder has the right to
receive
pursuant
to Section 1.8, plus cash that such holder has the right to
receive in
lieu of any fractional shares of Parent Common Stock pursuant
to Section
2.5 and dividends and other distributions pursuant to Section
2.3 (in
each case, after taking into account all shares of Company
Common
Stock then
held by such holder); and
(ii) in the case of holders of Preferred Certificates (A) one
or
more
shares of Parent Convertible Preferred Stock (which shall be in
uncertificated book-entry form unless a physical certificate is
requested)
representing, in the aggregate, the number of shares that such
holder has
the right
to receive pursuant to Section 1.8 and (B) cash that such
holder
has the
right to receive in lieu of any dividends and other
distributions
pursuant
to Section 2.3 (in each case, after taking into account all
shares of
Company Convertible Preferred Stock then held by such holder).
Notwithstanding anything to the contrary contained in this
Agreement, any
holder of Book-Entry Shares shall not be required to deliver a
Certificate or an
executed letter of transmittal to the Exchange Agent to receive the
Merger
Consideration that such holder is entitled to receive pursuant to
this
Agreement.
(b) No interest will be paid or will accrue on any cash payable
pursuant to Section 2.3 or Section 2.5.
(c) In the event of a transfer of ownership of a Certificate
representing Company Common Stock or Company Convertible Preferred
Stock that is
not registered in the stock transfer records of the Company, the
Common Stock
Merger Consideration or the Preferred Stock Merger Consideration,
as applicable,
shall be issued or paid in exchange therefor to a person other than
the person
in whose name the Certificate so surrendered is registered if the
Certificate
formerly representing such Company Common Stock or Company
Convertible Preferred
Stock shall be properly endorsed or otherwise be in proper form for
transfer and
the person requesting such payment or issuance shall pay any
transfer or other
similar Taxes required by reason of the payment or issuance to a
person other
than the registered holder of the Certificate or establish to the
satisfaction
of Parent that the Tax has been paid or is not applicable.
Section 2.3 Distributions with Respect to Unexchanged Shares.
All
shares of Parent Common Stock and Parent Convertible Preferred
Stock to be
issued pursuant to this Agreement shall be deemed issued and
outstanding as of
the Effective Time and whenever a dividend or other distribution is
declared by
Parent in respect of the Parent Common Stock or Parent Convertible
Preferred
Stock, as the case may be, the record date for which is at or after
the
Effective Time, that declaration shall include dividends or other
distributions
in respect of all shares issuable pursuant to this Agreement;
provided that no
dividends or other distributions declared or made in respect of the
Parent
Common Stock or Parent Convertible Preferred Stock, as the case may
be, shall be
paid to the holder of any unsurrendered Certificate until the
holder of such
Certificate shall surrender such Certificate in accordance with
this Article II.
Subject to the effect of applicable Laws, following surrender of
any such
Certificate, there shall be paid to such holder of shares of Parent
Common Stock
or Parent Convertible Preferred Stock issuable in exchange
therefor, without
interest, (a) promptly after the time of such surrender, the amount
of any cash
payable in lieu of fractional shares of Parent Common Stock to
which such holder
is entitled pursuant to Section 2.5 and the amount of dividends or
other
distributions with a record date after the Effective Time
theretofore paid with
respect to such whole shares of Parent Common Stock or shares of
Parent
Convertible Preferred Stock, and (b) at the appropriate payment
date, the amount
of dividends or other distributions with a record date at or after
the Effective
Time but prior to such surrender and a payment date subsequent to
such surrender
payable with respect to such shares of Parent Common Stock or
Parent Convertible
Preferred Stock.
Section 2.4 No Further Ownership Rights. All shares of Parent
Common
Stock and Parent Convertible Preferred Stock issued and cash paid
upon
conversion of shares of Company Common Stock or Company Convertible
Preferred
Stock in accordance with the terms of Article I and this Article II
(including
any cash paid pursuant to Section 1.8, Section 2.3 or Section 2.5)
shall be
deemed to have been issued or paid in full satisfaction of all
rights pertaining
to the shares of Company Common Stock and Company Convertible
Preferred Stock,
as the case may be (other than any rights with respect to any
unpaid dividends
with respect to Company Common Stock or Company Convertible
Preferred Stock that
were declared prior to the Effective Time with a record date prior
to the
Effective Time and a payment date after the Effective Time).
Section 2.5 No Fractional Shares of Parent Common Stock.
(a) No certificates or scrip or shares of Parent Common Stock
representing fractional shares of Parent Common Stock or book-entry
credit of
the same shall be issued upon the surrender for exchange of
Certificates and
such fractional share interests will not entitle the owner thereof
to vote or to
have any rights of a stockholder of Parent or a holder of shares of
Parent
Common Stock.
(b) Notwithstanding any other provision of this Agreement, each
holder of shares of Company Common Stock exchanged pursuant to the
Merger who
would otherwise have been entitled to receive a fraction of a share
of Parent
Common Stock (after taking into account all Certificates delivered
by such
holder) shall receive, in lieu thereof, cash (without interest) in
an amount
equal to the product of (i) such fractional part of a share of
Parent Common
Stock multiplied by (ii) the Parent Share Cash Value.
(c) As promptly as practicable after the determination of the
amount
of cash, if any, to be paid to holders of fractional interests, the
Exchange
Agent shall so notify Parent, and Parent shall promptly deposit or
cause the
Surviving Corporation to deposit such amount with the Exchange
Agent and shall
cause the Exchange Agent to forward payments to such holders of
fractional
interests subject to and in accordance with the terms hereof.
Section 2.6 Termination of Exchange Fund. Any portion of the
Exchange Fund which remains undistributed to the holders of shares
of Company
Common Stock or Company Convertible Preferred Stock for twelve (12)
months after
the Effective Time shall be delivered to Parent or otherwise on the
instruction
of Parent, and any holders of shares of Company Common Stock or
Company
Convertible Preferred Stock who have not theretofore complied with
this Article
II shall thereafter look only to Parent for, and Parent shall
remain liable for,
the Common Stock Merger Consideration or Preferred Stock Merger
Consideration,
as the case may be, to which such holders are entitled pursuant to
Section 1.8
and Section 2.2, and any cash in lieu of fractional shares of
Parent Common
Stock to which such holders are entitled pursuant to Section 2.5
and any
dividends or distributions with respect to shares of Parent Common
Stock or
Parent Convertible Preferred Stock to which such holders are
entitled pursuant
to Section 2.3. Any such portion of the Exchange Fund remaining
unclaimed by
holders of shares of Company Common Stock or Company Convertible
Preferred Stock
five (5) years after the Effective Time (or such earlier date
immediately prior
to such time as such amounts would otherwise escheat to or become
property of
any Governmental Entity shall, to the extent permitted by Law,
become the
property of the Surviving Corporation free and clear of any claims
or interest
of any Person previously entitled thereto.
Section 2.7 No Liability. None of Parent, Merger Sub, the
Company,
the Surviving Corporation or the Exchange Agent shall be liable to
any Person in
respect of any Merger Consideration from the Exchange Fund
delivered to a public
official pursuant to any applicable abandoned property, escheat or
similar Law.
Section 2.8 Investment of the Exchange Fund. The Exchange Agent
shall invest any cash included in the Exchange Fund as directed by
Parent on a
daily basis in (i) short term direct obligations of the United
States of America
with maturities of no more than 30 days, (ii) short term
obligations for which
the full faith and credit of the United States of America is
pledged to provide
for payment of all principal and interest or (iii) commercial paper
obligations
receiving the highest rating from either Moody's Investor Services,
Inc. or
Standard & Poor's; provided, that no gain or loss thereon shall
affect the
amounts payable to the Company stockholders pursuant to Article I
and the other
provisions of this Article II. If for any reason (including losses)
the cash in
the Exchange Fund shall be insufficient to fully satisfy all of the
payment
obligations to be made in cash by the Exchange Agent hereunder,
Parent shall
promptly deposit cash into the Exchange Fund in an amount which is
equal to the
deficiency in the amount of cash required to fully satisfy such
cash payment
obligations. Any interest and other income resulting from such
investments shall
promptly be paid to Parent.
Section 2.9 Lost Certificates. If any Certificate shall have
been
lost, stolen or destroyed, upon the making of an affidavit of that
fact by the
Person claiming such Certificate to be lost, stolen or destroyed
and, if
required by the Surviving Corporation, the posting by such Person
of a bond in
such reasonable amount as the Surviving Corporation may direct as
indemnity
against any claim that may be made against it with respect to such
Certificate,
the Exchange Agent will deliver in exchange for such lost, stolen
or destroyed
Certificate the applicable Merger Consideration with respect to the
shares of
Company Common Stock or Company Convertible Preferred Stock, as the
case may be,
formerly represented thereby, any cash in lieu of fractional shares
of Parent
Common Stock to which such holders are entitled pursuant to Section
2.5, and
unpaid dividends and distributions on shares of Parent Common Stock
or Parent
Convertible Preferred Stock to which such holders are entitled
pursuant to
Section 2.3, as the case may be, deliverable in respect thereof,
pursuant to
this Agreement.
Section 2.10 Withholding Rights. Each of the Surviving
Corporation,
Parent and the Exchange Agent shall be entitled to deduct and
withhold from the
consideration otherwise payable pursuant to this Agreement to any
holder of
shares of Company Common Stock, Company Convertible Preferred
Stock, Company
Stock Options, RSUs, DSUs, Restricted Stock or any other Equity
Interests in the
Company such amounts as it is required to deduct and withhold with
respect to
the making of such payment under the Code and the rules and
regulations
promulgated thereunder, or any provision of state, local or foreign
Tax Law. To
the extent that amounts are so withheld by the Surviving
Corporation, Parent or
the Exchange Agent, as the case may be, such withheld amounts shall
be treated
for all purposes of this Agreement as having been paid to the
holder of shares
of Company Common Stock, Company Convertible Preferred Stock,
Company Stock
Options, RSUs, DSUs, Restricted Stock or other Equity Interests in
the Company,
as the case may be, in respect of which such deduction and
withholding was made
by the Surviving Corporation or Parent.
Section 2.11 Further Assurances. After the Effective Time, the
officers and directors of the Surviving Corporation will be
authorized to
execute and deliver, in the name and on behalf of the Company or
Merger Sub, any
deeds, bills of sale, assignments or assurances and to take and do,
in the name
and on behalf of the Company or Merger Sub, any other actions and
things to
vest, perfect or confirm of record or otherwise in the Surviving
Corporation any
and all right, title and interest in, to and under any of the
rights, properties
or assets acquired or to be acquired by the Surviving Corporation
as a result
of, or in connection with, the Merger.
Section 2.12 Stock Transfer Books. The stock transfer books of
the
Company shall be closed at the close of business on the day on
which the
Effective Time occurs and there shall be no further registration of
transfers of
shares of Company Common Stock or Company Convertible Preferred
Stock thereafter
on the records of the Company. On or after the Effective Time, any
Certificates
presented to the Exchange Agent or Parent for any reason shall be
converted into
the Merger Consideration with respect to the shares of Company
Common Stock or
Company Convertible Preferred Stock, as the case may be, formerly
represented
thereby (including any cash in lieu of fractional shares of Parent
Common Stock
to which the holders thereof are entitled pursuant to Section 2.5)
and any
dividends or other distributions to which the holders thereof are
entitled
pursuant to Section 2.3.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (i)
as disclosed in the Company SEC Documents filed since January
1, 2008 but prior to the date hereof (but excluding any risk factor
disclosures
contained under the heading "Risk Factors," any disclosure of risks
included in
any "forward-looking statements" disclaimer or any other statements
that are
similarly non-specific or predictive or forward-looking in nature,
in each case,
other than any specific factual information contained therein) or
(ii) as set
forth in the Company Disclosure Letter delivered by the Company to
Parent prior
to the execution of this Agreement (the "Company Disclosure
Letter"), which
identifies items of disclosure by reference to a particular section
or
subsection of this Agreement (provided, however, that any
information set forth
in one section of such Company Disclosure Letter also shall be
deemed to apply
to each other section and subsection of this Agreement to which its
relevance is
reasonably apparent), the Company hereby represents and warrants to
Parent and
Merger Sub as follows:
Section 3.1 Organization, Good Standing and Qualification.
(a) Each of the Company and its Significant Subsidiaries is a
corporation duly organized, validly existing and in good standing
(with respect
to jurisdictions that recognize the concept of good standing) under
the Laws of
its respective jurisdiction of organization and has all requisite
corporate or
similar power and authority to own, lease and operate its
properties and assets
and to carry on its business as presently conducted, except with
respect to
Significant Subsidiaries, where the failure to be so organized,
qualified or in
good standing, or to have such power or authority when taken
together with all
other such failures, has not, and would not reasonably be expected
to have,
individually or in the aggregate, a Company Material Adverse
Effect. Each of the
Company and its Significant Subsidiaries is duly qualified or
licensed to do
business and is in good standing (with respect to jurisdictions
that recognize
the concept of good standing) as a foreign corporation in each
jurisdiction
where the ownership, leasing or operation of its assets or
properties or conduct
of its business requires such qualification, except where the
failure to be so
organized, qualified or in good standing, or to have such power or
authority
when taken together with all other such failures, has not, and
would not
reasonably be expected to have, individually or in the aggregate, a
Company
Material Adverse Effect.
(b) The Company has delivered or made available to Parent and
Merger
Sub a true and complete copy of the Company's currently effective
certificate of
incorporation and bylaws, as amended and restated to the date
hereof. The
Company's certificate of incorporation and bylaws so delivered are
in full force
and effect and the Company is not in violation of its certificate
of
incorporation or bylaws.
(c) Section 3.1(c) of the Company Disclosure Letter lists, as of
the
date of this Agreement, each Significant Subsidiary of the
Company.
Section 3.2 Capital Structure.
(a) As of the close of business on January 23, 2009 (the
"Capitalization Date"), the authorized capital stock of the Company
consists of
(i) 2,400,000,000 shares of Company Common Stock, of which
1,331,176,822 shares
were outstanding (inclusive of 37,823.2483 shares of Restricted
Stock granted
pursuant to the Company Stock Plans) and 91,492,222 shares were
held in the
treasury of the Company and (ii) 5,000,000 shares of Preferred
Stock, par value
$2.50 per share, of which 2,830,000 have been designated as $2
Convertible
Preferred Stock, of which 8,959 shares were outstanding. There are
no other
classes of capital stock of the Company authorized or outstanding.
All issued
and outstanding shares of the capital stock of the Company are duly
authorized,
validly issued, fully paid and non-assessable, and no class of
capital stock is
entitled to preemptive rights.
(b) From the close of business on the Capitalization Date
through
the date of this Agreement, there have been no issuances of shares
of the
capital stock or equity securities of the Company or any other
securities of the
Company other than issuances of shares of Company Common Stock
pursuant to the
exercise of Company Stock Options or the settlement of RSU or DSU
rights
outstanding as of the Capitalization Date under the Company Stock
Plans. There
were outstanding as of the Capitalization Date, no options,
warrants, calls,
commitments, agreements, arrangements, undertakings or any other
rights to
acquire capital stock from the Company other than Company Stock
Options, RSUs
and DSUs as set forth in Section 3.2(b) of the Company Disclosure
Letter and
other than the Company Convertible Preferred Stock. Section 3.2(b)
of the
Company Disclosure Letter sets forth a complete and correct list,
as of the
Capitalization Date, of the number of shares of Company Common
Stock subject to
Company Stock Options, RSUs, DSUs, Restricted Stock or any other
rights to
purchase or receive Company Common Stock granted under the Company
Stock Plans
or otherwise. Immediately prior to the Closing, the Company will
provide to
Parent a complete and correct list, as of the Closing, of the
number of shares
of Company Common Stock subject to Company Stock Options, RSUs,
DSUs, Restricted
Stock or any other rights to purchase or receive Company Common
Stock granted
under the Company Stock Plans or otherwise, the dates of grant, the
extent to
which such options are vested and, where applicable, the exercise
prices
thereof. No options, warrants, RSUs, DSUs, calls, commitments,
agreements,
arrangements, undertakings or other rights to acquire capital stock
from the
Company, or other equity-based awards, have been issued or granted
on or after
the Capitalization Date through the date of this Agreement.
(c) Other than Convertible Debentures, no bonds, debentures,
notes
or other indebtedness of the Company having the right to vote (or
convertible
into or exercisable for securities having the right to vote) on any
matters on
which holders of capital stock of the Company may vote ("Company
Voting Debt")
are issued or outstanding.
(d) Except as
otherwise set forth in this Section 3.2, Section
6.5(j) or contained in Section 3.2(b) of the Company Disclosure
Letter, as of
the date of this Agreement, (i) there are no outstanding
obligations of the
Company or any of its Subsidiaries to repurchase, redeem or
otherwise acquire
any shares of capital stock of the Company or any of its
Subsidiaries except for
purchases, redemptions or other acquisitions of capital stock or
other
securities (1) required by the terms of the Company Benefit Plans,
(2) in order
to pay Taxes or satisfy withholding obligations in respect of such
Taxes in
connection with the exercise of Company Stock Options, or (3) as
required by the
terms of, or necessary for the administration of, any plans,
arrangements or
agreements existing on the date hereof between the Company or any
of its
Subsidiaries and any director or employee of the Company or any of
its
Subsidiaries and (ii) there are no outstanding stock-appreciation
rights,
security-based performance units, "phantom" stock or other security
rights or
other agreements, arrangements or commitments of any character
(contingent or
otherwise) pursuant to which any Person is or may be entitled to
receive any
payment or other value based on the stock price performance of the
Company or
any of its Subsidiaries (other than under the Company Stock Plans)
or to cause
the Company or any of its Subsidiaries to file a registration
statement under
the Securities Act of 1933, as amended (the "Securities Act").
(e) Except as set forth in this Section 3.2, as of the date of
this
Agreement, there are no outstanding obligations of the Company or
any of its
Significant Subsidiaries (i) restricting the transfer of, (ii)
affecting the
voting rights of, (iii) requiring the sales, issuance, repurchase,
redemption or
disposition of, or containing any right of first refusal with
respect to, (iv)
requiring the registration for sale of or (v) granting any
preemptive or
antidilutive rights with respect to any shares of Company Common
Stock, Company
Convertible Preferred Stock or other Equity Interests in the
Company or any of
its Subsidiaries.
(f) Section 3.2(f) of the Company Disclosure Letter sets forth,
as
of the date hereof, for each of the Company's Significant
Subsidiaries: (i) its
authorized capital stock or other Equity Interests, (ii) the number
of its
outstanding shares of capital stock or other Equity Interests and
type(s) of
such outstanding shares of capital stock or other Equity Interests
and (iii) the
record owner(s) thereof. The Company owns directly or indirectly,
beneficially
and of record, all of the issued and outstanding shares of capital
stock or
other Equity Interests of each of the Company's Significant
Subsidiaries, free
and clear of any Liens other than Permitted Liens, and all of such
shares of
capital stock or other Equity Interests have been duly authorized
and validly
issued and are fully paid, nonassessable and free of preemptive
rights. Except
for the ownership of Equity Interests in the Company's Subsidiaries
and
investments in marketable securities and cash equivalents, none of
the Company
or any of its Subsidiaries owns directly or indirectly any Equity
Interest in
any Person, or has any obligation or has made any commitment to
acquire any such
Equity Interest, to provide funds to, or to make any investment (in
the form of
a loan, capital contribution or otherwise) in, any of its
Subsidiaries or any
other Person that is or would reasonably be expected to be material
to the
Company and its Subsidiaries, taken as a whole.
Section 3.3 Corporate Authority.
(a) The Company has all requisite corporate power and authority
and
has taken all corporate action necessary in order to execute,
deliver and
perform its obligations under this Agreement and to consummate the
transactions
contemplated hereby, subject, assuming the accuracy of the
representations and
warranties of Parent and Merger Sub set forth in Section 4.14, only
to the
adoption of this Agreement by the affirmative vote of the holders
of a majority
in voting power of the outstanding shares of Company Common Stock
and Company
Convertible Preferred Stock, voting together as a single class (the
"Company
Requisite Vote"), and to the filing and recording of the
Certificate of Merger
under the provisions of the DGCL. The Company Requisite Vote is the
only vote of
the holders of any class or series of capital stock of the Company
necessary to
adopt, approve or authorize this Agreement, the Merger and the
other
transactions contemplated by this Agreement. This Agreement has
been duly
authorized and validly executed and delivered by the Company and,
assuming due
authorization, execution and delivery by Parent and Merger Sub,
constitutes a
legal, valid and binding obligation of the Company enforceable
against the
Company in accordance with its terms, subject to bankruptcy,
insolvency,
fraudulent transfer, reorganization, moratorium and similar Laws of
general
applicability relating to or affecting creditors' rights and to
general equity
principles (the "Bankruptcy and Equity Exception").
(b) As of the date of this Agreement, the Board of Directors of
the
Company (i) has, by resolution duly adopted at a meeting duly
called and held,
approved and declared advisable this Agreement and the Merger and
the other
transactions contemplated by this Agreement; (ii) has received the
separate
opinions of each of the Company Financial Advisors (as defined in
Section 3.19
below), dated the date of this Agreement, to the effect that, as of
such date
and subject to assumptions, qualifications and limitations set
forth therein,
the Common Stock Merger Consideration to be received by the holders
of the
Company Common Stock pursuant to the Merger is fair from a
financial point of
view to such holders; (iii) has resolved to recommend adoption of
this Agreement
to the stockholders of the Company; and (iv) has directed that this
Agreement be
submitted to the holders of Company Common Stock and Company
Convertible
Preferred Stock for adoption.
(c) Assuming the accuracy of the representations and warranties
of
Parent and Merger Sub set forth in Section 4.14, no "fair price,"
"moratorium,"
"control share acquisition" or other similar anti-takeover statute
or regulation
(each, a "Takeover Statute") or any anti-takeover provision in the
Company's
certificate of incorporation and bylaws is, or at the Effective
Time will be,
applicable to the Company Common Stock, the Merger or the other
transactions
contemplated by this Agreement. Assuming the accuracy of the
representations and
warranties of Parent and Merger Sub set forth in Section 4.14, the
Board of
Directors of the Company has taken all action so that Parent will
not be
prohibited from entering into a "business combination" with the
Company (as such
term is used in Section 203 of the DGCL) as a result of the
execution of this
Agreement, or the consummation of the Merger or the other
transactions
contemplated hereby, without any further action on the part of the
Company
stockholders or the Board of Directors of the Company.
Section 3.4 Governmental Filings; No Violations, Etc.
(a) Except for the reports, registrations, consents, approvals,
permits, authorizations, notices and/or filings (i) pursuant to
Section 1.3 of
this Agreement, (ii) under the Hart-Scott-Rodino Antitrust
Improvement Act of
1976 (the "HSR Act"), the Securities Act, the Securities Exchange
Act of 1934,
as amended (the "Exchange Act"), the EC Merger Regulation and the
China
Anti-Monopoly Law, (iii) required to be made with the New York
Stock Exchange
(the "NYSE"), (iv) for or pursuant to other applicable foreign
securities Law
approvals, state securities, takeover and "blue sky" laws, (v)
required to be
made with or to those foreign Governmental Entities (as defined
below)
regulating competition and antitrust Laws, (vi) required to be made
under any
Environmental Law and (vii) pursuant to the rules and regulations
of the FDA and
similar foreign Governmental Entities, no notices, reports or other
filings are
required to be made by the Company with, nor are any registrations,
consents,
approvals, permits or authorizations required to be obtained by the
Company
from, any governmental or regulatory authority, agency, commission,
body or
other governmental entity ("Governmental Entity"), in connection
with the
execution and delivery of this Agreement by the Company and the
consummation by
the Company of the Merger and the other transactions contemplated
by this
Agreement, except those that the failure to make or obtain would
not reasonably
be expected to have, individually or in the aggregate, a Company
Material
Adverse Effect.
(b) None of the execution, delivery or performance of this
Agreement
by the Company, the consummation by the Company of the Merger or
any other
transaction contemplated by this Agreement, or the Company's
compliance with any
of the provisions of this Agreement will (with or without notice or
lapse of
time, or both): (i) subject to obtaining the Company Requisite
Vote, conflict
with or violate any provision of the Company's certificate of
incorporation or
bylaws or any equivalent organizational or governing documents of
any of the
Company's Significant Subsidiaries; (ii) assuming that all
consents, approvals,
authorizations and permits described in this Section 3.4 have been
obtained and
all filings and notifications described in this Section 3.4 have
been made and
any waiting periods thereunder have terminated or expired, conflict
with or
violate any Law or Order applicable to the Company or any of its
Subsidiaries or
any of their respective properties or assets; or (iii) require any
consent or
approval under, violate, conflict with, result in any breach of or
any loss of
any benefit under, or constitute a default under, or result in
termination or
give to others any right of termination, vesting, amendment,
acceleration or
cancellation of, or result in the creation of a Lien, other than
Permitted
Liens, upon any of the respective properties or assets of the
Company or any of
its Subsidiaries pursuant to, any Contract, permit or other
instrument or
obligation to which the Company or any of its Subsidiaries is a
party or by
which they or any of their respective properties or assets may be
bound or
affected, except, with respect to clauses (ii) and (iii), for any
such
conflicts, violations, consents, approvals, authorizations,
permits, breaches,
losses, defaults, other occurrences or Liens which would not
reasonably be
expected to have, individually or in the aggregate, a Company
Material Adverse
Effect.
Section 3.5 Company Reports; Financial Statements.
(a) Since January 1, 2006, the Company has timely filed or
otherwise
furnished (as applicable) all registration statements,
prospectuses, forms,
reports, definitive proxy statements, schedules, statements and
documents
required to be filed by it under the Securities Act or the Exchange
Act, as the
case may be, together with all certifications required pursuant to
the
Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley Act") (such
documents and any
other documents filed by the Company or any of its Subsidiaries
with the SEC,
including exhibits and other information incorporated therein as
they have been
supplemented, modified or amended since the time of filing,
collectively, the
"Company SEC Documents"). As of their respective filing dates (or,
if amended or
superseded by a filing prior to the date of this Agreement, then on
the date of
such filing), the Company SEC Documents (i) did not contain any
untrue statement
of a material fact or omit to state a material fact required to be
stated
therein or necessary in order to make the statements made therein,
in light of
the circumstances under which they were made, not misleading and
(ii) complied
in all material respects with the applicable requirements of the
Exchange Act or
the Securities Act, as the case may be, the Sarbanes-Oxley Act and
the
applicable rules and regulations of the SEC thereunder. None of the
Company's
Subsidiaries is required to make any filings with the SEC. All of
the audited
consolidated financial statements and unaudited consolidated
interim financial
statements of the Company included in the Company SEC Documents
(together with
the related notes and schedules thereto, collectively, the "Company
Financial
Statements") (A) have been prepared from, and are in accordance
with, the books
and records of the Company and the Company's Subsidiaries in all
material
respects, (B) have been prepared in accordance with GAAP applied on
a consistent
basis during the periods involved (except as may be indicated in
the notes
thereto or, in the case of interim financial statements, for normal
and
recurring year-end adjustments) and (C) fairly present in all
material respects
the consolidated financial position and the consolidated results of
operations,
cash flows and changes in stockholders' equity of the Company and
its
Subsidiaries as of the dates and for the periods referred to
therein.
(b) The Company is in compliance in all material respects with
(i)
the applicable provisions of the Sarbanes-Oxley Act and (ii) the
applicable
listing and corporate governance rules and regulations of the NYSE.
Except as
permitted by the Exchange Act, including Sections 13(k)(2) and (3),
since the
enactment of the Sarbanes-Oxley Act, neither the Company nor any of
its
Affiliates has made, arranged, modified (in any material way), or
forgiven
personal loans to any executive officer or director of the
Company.
(c) The Company's disclosure controls and procedures (as defined
in
Rules 13a-15(e) and 15d-15(e) of the Exchange Act), as required by
Rules
13a-15(a) and 15d-15(a) of the Exchange Act, are designed to ensure
that all
information required to be disclosed by the Company in the reports
it files or
submits under the Exchange Act is made known to the chief executive
officer and
the chief financial officer of the Company by others within the
Company to allow
timely decisions regarding required disclosure as required under
the Exchange
Act and is recorded, processed, summarized and reported within the
time periods
specified by the SEC's rules and forms. The Company has evaluated
the
effectiveness of the Company's disclosure controls and procedures
and, to the
extent required by applicable Law, presented in any applicable
Company SEC
Document that is a report on Form 10-K or Form 10-Q, or any
amendment thereto,
its conclusions about the effectiveness of the disclosure controls
and
procedures as of the end of the period covered by such report or
amendment based
on such evaluation. Based on its most recently completed evaluation
of its
system of internal control over financial reporting prior to the
date of this
Agreement, (i) to the Knowledge of the Company, the Company had no
significant
deficiencies or material weaknesses in the design or operation of
its internal
control over financial reporting that would reasonably be expected
to adversely
affect the Company's ability to record, process, summarize and
report financial
information and (ii) the Company does not have Knowledge of any
fraud, whether
or not material, that involves management or other employees who
have a
significant role in the Company's internal control over financial
reporting.
(d) No attorney representing the Company or any of its
Subsidiaries,
whether or not employed by the Company or any Subsidiary of the
Company, has
reported to the Company's chief legal counsel or chief executive
officer
evidence of a material violation of securities Laws, breach of
fiduciary duty or
similar violation by the Company or any of its officers, directors,
employees or
agents pursuant to Section 307 of the Sarbanes-Oxley Act.
(e) Since January 1, 2006, to the Knowledge of the Company, no
employee of the Company or any of its Subsidiaries has provided or
is providing
information to any law enforcement agency or Governmental Entity
regarding the
commission or possible commission of any crime or the violation or
possible
violation of any applicable legal requirements of the type
described in Section
806 of the Sarbanes-Oxley Act by the Company or any of its
Subsidiaries.
(f) To the Knowledge of the Company, none of the Company SEC
Documents (other than confidential treatment requests) is the
subject of ongoing
SEC review. The Company has made available to Parent true and
complete copies of
all written comment letters from the staff of the SEC received
since January 1,
2006 through the date of this Agreement relating to the Company SEC
Documents
and all written responses of the Company thereto through the date
of this
Agreement other than with respect to requests for confidential
treatment. As of
the date of this Agreement, there are no outstanding or unresolved
comments in
comment letters received from the SEC staff with respect to any
Company SEC
Documents other than confidential treatment requests. To the
Knowledge of the
Company, as of the date of this Agreement, there are no SEC
inquiries or
investigations, other governmental inquiries or investigations or
internal
investigations pending or threatened, in each case regarding any
accounting
practices of the Company.
Section 3.6 Absence of Certain Changes. (a) Since September 30,
2008, the business of the Company and its Subsidiaries has been
conducted in the
ordinary course in all material respects and (b) since December 31,
2007, there
has not been any event, occurrence, development or state of
circumstances or
facts or condition that has had or would reasonably be expected to
have,
individually or in the aggregate, a Company Material Adverse
Effect.
Section 3.7 Litigation.
(a) There are no civil, criminal or administrative actions,
suits,
claims, hearings, investigations or proceedings (collectively,
"Actions")
pending or, to the Knowledge of the Company, threatened against the
Company or
any of its Subsidiaries or any of their respective assets or
properties that if
determined adversely to the Company would reasonably be expected to
have,
individually or in the aggregate, a Company Material Adverse
Effect.
(b) Neither the Company nor any of its Subsidiaries or, to the
Knowledge of the Company, any of their respective assets or
properties, is
subject to any outstanding Order, writ, injunction, decree or
arbitration
ruling, award or other finding that would reasonably be expected to
have,
individually or in the aggregate, a Company Material Adverse
Effect.
Section 3.8 Compliance with Laws. The Company and each of its
Subsidiaries are in compliance with all Laws or Orders, except
where any such
failure to be in compliance has not had, or would not reasonably be
expected to
have, individually or in the aggregate, a Company Material Adverse
Effect. No
investigation or review by any Governmental Entity with respect to
the Company
or any of its Subsidiaries is pending or, to the Knowledge of the
Company,
threatened, nor has any Governmental Entity indicated an intention
to conduct
the same which, in each case, would reasonably be expected to have
a material
and adverse impact on the Company. To the Knowledge of the Company,
the Company
is in material compliance with the Foreign Corrupt Practices Act of
1977, as
amended, and any rules and regulations thereunder.
Section 3.9 Properties. Except as would not have, or would not
reasonably be expected to have, individually or in the aggregate, a
Company
Material Adverse Effect, the Company or one of its Subsidiaries, as
the case may
be, (i) holds good, marketable and valid fee simple title to all of
the
properties and assets reflected in the September 30, 2008 balance
sheet included
in the Company SEC Documents as being owned by the Company or one
of its
Subsidiaries (collectively, with respect to real property, the
"Owned Real
Property") or acquired after the date thereof that are material to
the Company's
business on a consolidated basis (except for properties and assets
sold or
otherwise disposed of since the date thereof in the ordinary course
of
business), free and clear of all Liens, except for Permitted Liens
and other
matters described in Section 3.9 of the Company Disclosure Letter,
(ii) holds
the Owned Real Property, or any portion thereof or interest
therein, free of any
outstanding options or rights of first refusal or offer to purchase
or lease,
(iii) is the lessee of all leasehold estates reflected in the
September 30, 2008
financial statements included in the Company SEC Documents or
acquired after the
date thereof that are material to the Company's business on a
consolidated basis
(except for leases that have expired by their terms since the date
thereof or
been assigned, terminated or otherwise disposed of in the ordinary
course of
business) (collectively, with respect to real property, the "Leased
Real
Property") and (x) is in possession of the properties purported to
be leased
thereunder, and each such lease is valid and in full force and
effect,
constitutes a valid and binding obligation of the Company or the
applicable
Subsidiary of the Company, subject to the Bankruptcy and Equity
Exception and
(y) the Company has not received any written notice of termination
or
cancellation of or of a breach or default under any such lease.
Section 3.10 Contracts.
(a) As of the date hereof, except as set forth as an exhibit to
the
Company SEC Documents and on Section 3.10(a) of the Company
Disclosure Letter,
neither the Company nor any of its Subsidiaries is a party to or
bound by any:
(i) Contract relating to third-party indebtedness for borrowed
money
or any
third-party financial guaranty in excess of $500,000,000;
(ii) non-competition agreements or any other agreements or
arrangements that materially limit or otherwise materially restrict
the
Company or
any of its Subsidiaries or any of their respective Affiliates
or any
successor thereto or that, to the Knowledge of the Company,
would,
after the
Effective Time, limit or restrict Parent or any of its
Subsidiaries (including the Surviving Corporation) or any
successor
thereto,
in each case from engaging or competing in any line of business
or in any
geographic area or, in the case of the pharmaceutical business,
any
therapeutic area, class of drugs or mechanism of action, which
agreement
or arrangements would reasonably be expected to materially
limit,
materially restrict or materially conflict with the business of
Parent and
its Subsidiaries, taken as a whole (including for purposes of
such
determination, the Surviving Corporation and its Subsidiaries),
after
giving
effect to the Merger; or
(iii) Contract required to be filed as an exhibit to the
Company's
Annual
Report on Form 10-K pursuant to Item 601(b)(10) of Regulation
S-K
under the
Securities Act.
(b) All Contracts of the type described in clauses (a)(i), (ii)
and
(iii) above to which the Company or any of its Subsidiaries is a
party to or
bound by as of the date of this Agreement, together with the
Contracts set forth
on Section 3.10(b) of the Company Disclosure Letter, are referred
to herein as
the "Company Material Contracts" (provided that for purposes of
Section 5.1,
Contracts of the type referred to in clause (i) above shall not be
deemed to be
Company Material Contracts). Except, in each case, as has not, and
would not
reasonably be expected to have, individually or in the aggregate, a
Company
Material Adverse Effect: (i) all Company Material Contracts are
valid and
binding on the Company and/or the relevant Subsidiary of the
Company that is a
party thereto and, to the Knowledge of the Company, each other
party thereto,
subject to the Bankruptcy and Equity Exception, (ii) all Company
Material
Contracts are in full force and effect, (iii) the Company and each
of its
Subsidiaries has performed all material obligations required to be
performed by
them under the Company Material Contracts to which they are
parties, (iv) to the
Knowledge of the Company, each other party to a Company Material
Contract has
performed all material obligations required to be performed by it
under such
Company Material Contract and (v) no party to any Company Material
Contract has
given the Company or any of its Subsidiaries written notice of its
intention to
cancel, terminate, change the scope of rights under or fail to
renew any Company
Material Contract and neither the Company nor any of its
Subsidiaries, nor, to
the Knowledge of the Company, any other party to any Company
Material Contract,
has repudiated in writing any material provision thereof. Neither
the Company
nor any of its Subsidiaries has Knowledge of, or has received
written notice of,
any violation or default under (or any condition which with the
passage of time
or the giving of notice would cause such a violation of or default
under or
permit termination, modification or acceleration under) any Company
Material
Contract or any other Contract to which it is a party or by which
it or any of
its material properties or assets is bound, except for violations
or defaults
that are not, individually or in the aggregate, reasonably likely
to result in a
Company Material Adverse Effect.
Section 3.11 Employee Benefit Plans.
(a) Section 3.11(a) of the Company Disclosure Letter, sets forth
a
true, complete and correct list of each material "employee benefit
plan" as
defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974,
as amended ("ERISA") (whether or not subject to ERISA), and any
other material
plan, policy, program practice, agreement, understanding or
arrangement (whether
written or oral) providing compensation or other benefits to any
current or
former director, officer, employee or consultant (or to any
dependent or
beneficiary thereof) of the Company or any ERISA Affiliate, which
are now
maintained, sponsored or contributed to by the Company or any ERISA
Affiliate,
or under which the Company or any ERISA Affiliate has any material
obligation or
liability, whether actual or contingent, including all incentive,
bonus,
deferred compensation, vacation, holiday, cafeteria, medical,
disability, stock
purchase, stock option, stock appreciation, phantom stock,
restricted stock,
restricted stock unit, stock-based compensation, change-in-control,
retention,
employment, consulting, personnel or severance policies, programs,
practices,
Contracts or arrangements (each, a "Company Benefit Plan"),
excluding Foreign
Benefit Plans. For purposes of this Agreement, the term "Foreign
Benefit Plans"
shall mean those Company Benefit Plans maintained, sponsored or
contributed to
primarily for the benefit of current or former employees of the
Company or any
ERISA Affiliate who are or were regularly employed outside the
United States
(but which shall exclude any such Company Benefit Plans to the
extent required
by applicable foreign law to be so maintained, sponsored or
contributed to). Not
more than twenty (20) Business Days after the date hereof, the
Company shall
deliver a true, complete and correct list of each material Foreign
Benefit Plan
to Parent. For purposes of this Section 3.11, "ERISA Affiliate"
shall mean any
entity (whether or not incorporated) that, together with any other
entity, is
considered under common control and treated as one employer under
Sections
414(b) or (c) of the Code. The Company has no express or implied
commitment to
terminate or modify or change any Company Benefit Plan in the
United States,
other than with respect to a termination, modification or change
required by
ERISA or the Code or which would not, individually or in the
aggregate,
reasonably be expected to have a Company Material Adverse
Effect.
(b) With respect to each Company Benefit Plan (other than any
Foreign Benefit Plan), the Company has made available to Parent
(or, with
respect to items (iv), (v), (vi) and (vii), will provide to Parent
not more than
twenty (20) Business Days after the date hereof) true, complete and
correct
copies of the following (as applicable): (i) the written document
evidencing
such Company Benefit Plan or, with respect to any such plan that is
not in
writing, a written description of the material terms thereof; (ii)
the summary
plan description; (iii) the most recent annual report, financial
statement
and/or actuarial report; (iv) the most recent determination letter
from the
Internal Revenue Service (the "IRS" ); (v) the most recent Form
5500 required to
have been filed with the IRS, including all schedules thereto; (vi)
any related
trust agreements, insurance contracts or other funding
arrangements; (vii) any
notices to or from the IRS or any office or representative of the
Department of
Labor or Pension Benefit Guaranty Corporation ("PBGC") relating to
any
unresolved compliance issues in respect of any such Company Benefit
Plan; and
(viii) all material amendments, modifications or supplements to any
Company
Benefit Plan. With respect to each Foreign Benefit Plan, the
Company will
provide to Parent not more than twenty (20) Business Days after the
date hereof
the items identified in each of clauses (i), (vi) and (viii)
above.
(c) Except as would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect,
each Company
Benefit Plan has been administered in accordance with its terms,
applicable Law
(including Section 409A of the Code) and any applicable collective
bargaining
agreement including timely filing of all Tax, annual reporting and
other
governmental filings required by ERISA and the Code and timely
contribution (or,
if not yet due, proper financial reporting) of any amounts required
to be made
under the terms of any of the Company Benefit Plans as of the date
of this
Agreement. With respect to each of the Company Benefit Plans, no
event has
occurred and there exists no condition or set of circumstances in
connection
with which the Company or any of its Subsidiaries would be subject
to any
liability that, individually or in the aggregate, would reasonably
be expected
to have a Company Material Adverse Effect. Each Company Benefit
Plan that is
intended to be "qualified" under Section 401 of the Code has
received a
favorable determination letter from the IRS to such effect and, to
the Knowledge
of the Company, no fact, circumstance or event has occurred or
exists since the
date of such determination letter that would reasonably be expected
to adversely
affect the qualified status of any such Company Benefit Plan.
Except as would
not, individually or in the aggregate, reasonably be expected to
have a Company
Material Adverse Effect, none of the Company or any of its
Subsidiaries has
received notice of and, to the Knowledge of the Company, there are
no audits or
investigations by any Governmental Entity with respect to, or other
actions,
claims, suits or other proceedings against or involving any Company
Benefit Plan
or asserting rights or claims to benefits under any Company Benefit
Plan (other
than routine claims for benefits payable in the normal course).
Other than as
set forth on Section 3.11(c) of the Company Disclosure Letter, each
Company
Benefit Plan subject to ERISA that provides retiree healthcare or
life insurance
benefits in the United States provides by its terms that it may be
amended or
terminated without material liability to the Company or any of its
Subsidiaries
at any time after the Effective Time (other than as required by
applicable Law).
(d) No Company Benefit Plan is a "multiemployer plan" (as defined
in
Sections 3(37) and 4001(a)(3) of ERISA) or a "multiple employer
plan" within the
meaning of Sections 4063/4064 of ERISA or Section 413(c) of the
Code and neither
the Company nor any ERISA Affiliate has sponsored or contributed to
or been
required to contribute to a "multiemployer plan" or "multiple
employer plan."
(e) Except as set forth on Section 3.11(e) of the Company
Disclosure
Letter, neither the Company nor any ERISA Affiliate maintains or
contributes to,
or during the six-year period prior to the date hereof has
maintained or
contributed to, any "employee benefit plan" within the meaning of
Section 3(3)
of ERISA that is subject to Section 412 of the Code or Section 302
or Title IV
of ERISA. Except as would not have, individually or in the
aggregate, a Company
Material Adverse Effect, with respect to each plan set forth on
Schedule 3.11(e)
of the Company Disclosure Letter that is subject to Section 412 of
the Code or
Section 302 of Title IV of ERISA: (i) there does not exist any
accumulated
funding deficiency within the meaning of Section 412 of the Code or
Section 302
of ERISA, whether or not waived; (ii) there has been no "reportable
event"
within the meaning of Section 4043 of ERISA and the regulations
thereunder which
required a notice to the PBGC which has not been fully and
accurately reported
in a timely fashion, as required, or which, whether or not
reported, would
constitute grounds for the PBGC to institute involuntary
termination proceedings
with respect to any Company Benefit Plan that is subject to Title
IV of ERISA;
(iii) all premiums to the PBGC have been timely paid in full; (iv)
there has not
been a partial termination; and (v) none of the following events
has occurred:
(A) the filing of a notice of intent to terminate, (B) the
treatment of an
amendment to such a Company Benefit Plan as a termination under
Section 4041 of
ERISA or (C) the commencement of proceedings by the PBGC to
terminate such a
Company Benefit Plan and, to the Knowledge of the Company, no
condition exists
that presents a substantial risk that such proceedings will be
instituted or
which would constitute grounds under Section 4042 of ERISA for the
termination
of, or the appointment of a trustee to administer, any such
plan.
(f) Except as set forth on Section 3.11(f) of the Company
Disclosure
Letter, the execution of this Agreement or the consummation of the
Merger will
not constitute an event that, either alone or in conjunction with
any other
event, will or may result in (i) any payment, acceleration,
termination,
forgiveness of indebtedness, vesting, distribution, increase in
compensation or
benefits or obligation to fund benefits with respect to any current
or former
employee or other personnel of the Company or any of its
Subsidiaries, (ii) any
amount failing to be deductible by reason of Section 280G of the
Code or (iii)
the provision of any reimbursement of excise Taxes under Section
4999 of the
Code or any income Taxes under the Code.
(g) Except as would not have, individually or in the aggregate,
a
Company Material Adverse Effect, (i) each Foreign Benefit Plan has
been
established, maintained and administered in compliance with its
terms and all
applicable Laws and Orders of any controlling Governmental Entity;
(ii) each
Foreign Benefit Plan required to be registered has been registered
and has been
maintained in good standing with applicable regulatory authorities;
and (iii)
each Foreign Benefit Plan required to be funded and/or book
reserved is funded
and/or book reserved, as appropriate, in accordance with applicable
Law.
Section 3.12 Labor Matters. Each of the Company and its
Subsidiaries
is in compliance with all applicable Laws of the United States, or
of any state
or local government or any subdivision thereof or of any foreign
government
respecting employment and employment practices, terms and
conditions of
employment, wages and hours and occupational safety and health,
including the
Immigration Reform and Control Act, the Worker Adjustment
Retraining and
Notification Act, any Laws respecting employment discrimination,
sexual
harassment, disability rights or benefits, equal opportunity, plant
closure
issues, affirmative action, workers' compensation, employee
benefits, severance
payments, COBRA, labor relations, employee leave issues, wage and
hour
standards, occupational safety and health requirements and
unemployment
insurance and related matters, except where any such failure to be
in compliance
has not had, or would not reasonably be expected to have,
individually or in the
aggregate, a Company Material Adverse Effect. Except as
specifically identified
on Section 3.12 of the Company Disclosure Letter, neither the
Company nor any of
its Subsidiaries is a party to or bound by any labor or collective
bargaining
agreement (other than any industry-wide or statutorily mandated
agreement or
non-material agreement in a non-U.S. jurisdiction). There is no
unfair labor
practice charge pending or, to the Knowledge of the Company,
threatened which if
determined adversely to the Company or its Subsidiaries would
reasonably be
expected to have a Company Material Adverse Effect. Except as would
not,
individually or in the aggregate, reasonably be expected to have a
Company
Material Adverse Effect, (i) to the Knowledge of the Company, there
are no
organizational campaigns, petitions or other activities or
proceedings of any
labor union, workers' council or labor organization seeking
recognition of a
collective bargaining unit with respect to, or otherwise attempting
to
represent, any of the employees of the Company or any of its
Subsidiaries or
compel the Company or any of its Subsidiaries to bargain with any
such labor
union, works council or labor organization, (ii) there are no
strikes,
slowdowns, walkouts, work stoppages or other labor-related
controversies pending
or, to the Knowledge of the Company, threatened and (iii) neither
the Company
nor any of its Subsidiaries has experienced any such strike,
slowdown, walkout,
work stoppage or other labor-related controversy within the past
three (3)
years.
Section 3.13 Tax.
(a) Except to the extent reserved for in the most recent
Company
Financial Statements, the Company and each of its Subsidiaries have
timely
filed, or have caused to be timely filed, all material Tax Returns
required to
be filed, all such Tax Returns are true, complete and accurate in
all material
respects, and all material amounts of Taxes shown to be due on such
Tax Returns,
or otherwise owed, have been or will be timely paid.
(b) Except as would not have and would not reasonably be expected
to
have, individually or in the aggregate, a Company Material Adverse
Effect, (i)
no Tax authority has asserted, or threatened in writing to assert,
a Tax
liability (exclusive of interest) in excess of $25 million in
connection with an
audit or other administrative or court proceeding involving Taxes
of the Company
or any of its Subsidiaries, (ii) neither the Company nor any of its
Subsidiaries
has distributed stock of another corporation or has had its stock
distributed in
a transaction that was purported or intended to be governed, in
whole or in
part, by Section 355 or Section 361 of the Code within the
preceding five (5)
years, (iii) neither the Company nor any of its Subsidiaries has
participated,
or is currently participating, in a "listed transaction" as defined
in Treasury
Regulations Section 1.6011-4(b), and (iv) neither the Company nor
any of its
Subsidiaries is a party to any agreement or arrangement relating to
the
apportionment, sharing, assignment or allocation of Taxes (other
than an
agreement or arrangement solely among the members of a group the
common parent
of which is the Company or any of its Subsidiaries), or has any
liability for
Taxes of any Person (other than the Company or any of its
Subsidiaries) under
Treasury Regulations Section 1.1502-6 or any similar provision of
state, local
or foreign Law, as a transferee or successor, by contract or
otherwise.
Section 3.14 Intellectual Property.
(a) Except as, in the aggregate, would not reasonably be expected
to
have a Company Material Adverse Effect, (i) to the Company's
Knowledge, the
Company and each of its Subsidiaries owns, or is licensed to use
(in each case,
free and clear of any Liens), all Intellectual Property used in or
necessary for
the conduct of its business as currently conducted; (ii) to the
Company's
Knowledge, the use of any Intellectual Property by the Company and
its
Subsidiaries does not infringe on or otherwise violate the rights
of any Person
and is in accordance with any applicable license pursuant to which
the Company
or any Subsidiary acquired the right to use any Intellectual
Property; (iii) to
the Company's Knowledge, no Person is challenging, infringing on or
otherwise
violating any right of the Company or any of its Subsidiaries with
respect to
any Intellectual Property owned by and/or licensed to the Company
or its
Subsidiaries; and (iv) to the Company's Knowledge, neither the
Company nor any
of its Subsidiaries has received any written notice or otherwise
has Knowledge
of any pending claim, order or proceeding with respect to any
Intellectual
Property used by the Company and its Subsidiaries and to its
Knowledge no
Intellectual Property owned and/or licensed by the Company or its
Subsidiaries
is being used or enforced in a manner that would reasonably be
expected to
result in the abandonment, cancellation or unenforceability of such
Intellectual
Property. For purposes of this Agreement, "Intellectual Property"
shall mean
trademarks, service marks, brand names, certification marks, trade
dress and
other indications of origin, the goodwill associated with the
foregoing and
registrations in any domestic or foreign jurisdiction of, and
applications in
any such jurisdiction to register, the foregoing, including any
extension,
modification or renewal of any such registration or application;
inventions,
discoveries and ideas, whether patentable or not, in any domestic
or foreign
jurisdiction; patents, applications for patents (including, without
limitation,
divisions, continuations, continuations in part and renewal
applications), and
any renewals, extensions or reissues thereof, in any such
jurisdiction;
nonpublic information, trade secrets and confidential information
and rights in
any domestic or foreign jurisdiction to limit the use or disclosure
thereof by
any person; writings and other works, whether copyrightable or not,
in any such
jurisdiction; and registrations or applications for registration of
copyrights
in any domestic or foreign jurisdiction, and any renewals or
extensions thereof;
and any similar intellectual property or proprietary rights.
(b) The Company and its Subsidiaries have taken reasonable steps
to
protect the confidentiality and value of all trade secrets and any
other
confidential information that are owned, used or held by the
Company and its
Subsidiaries in confidence, including entering into licenses and
Contracts that
require employees, licensees, contractors, and other Persons with
access to
trade secrets or other confidential information to safeguard and
maintain the
secrecy and confidentiality of such trade secrets. To the Company's
Knowledge,
such trade secrets have not been used, disclosed to or discovered
by any Person
except pursuant to valid and appropriate non-disclosure, license or
any other
appropriate Contract which has not been breached.
Section 3.15 Environmental Matters.__
(a) The Company and its Subsidiaries are in compliance with all
applicable Environmental Laws, and to the Company's Knowledge any
past
non-compliance by the Company and its Subsidiaries with applicable
Environmental
Laws has been resolved, except for any failure to comply or to
resolve past
non-compliance that would not reasonably be expected to have,
individually or in
the aggregate, a Company Material Adverse Effect.
(b) Except as would not reasonably be expected to have,
individually
or in the aggregate, a Company Material Adverse Effect: (i) each of
the Company
and its Subsidiaries has obtained, maintained and complied with
all
Environmental Permits necessary for the conduct and operation of
its business as
currently operated, and the Company or any applicable Subsidiary of
the Company
has not received any notice that any such Environmental Permit is
not in full
force and effect; and (ii) no such Environmental Permit is or will
be subject to
review, revision, major modification or prior consent by any
Governmental
Authority as a result of the consummation of the transactions
contemplated by
this Agreement.
(c) None of the Company or any of its Subsidiaries has received
any
notice of any violation of or liability under Environmental Laws,
which would
reasonably be expected to have, individually or in the aggregate, a
Company
Material Adverse Effect.
(d) There are no pending or, to the Company's Knowledge,
threatened
civil, criminal or administrative claims, actions, proceedings,
hearings,
notices of violation, investigations, arbitrations or demand
letters pursuant to
Environmental Laws or with respect to Hazardous Materials against
the Company or
any of its Subsidiaries or, to the Company's Knowledge, related to
the Owned
Real Property, the Leased Real Property or any other facility
previously owned
or operated by the Company or any of its Subsidiaries which would
reasonably be
expected to have, individually or in the aggregate, a Company
Material Adverse
Effect.
(e) To the Company's Knowledge, there has been no presence of
storage tanks at or presence or release of any Hazardous Materials
on, at, or
from the Owned Real Property or the Leased Real Property or any
other facility
operated by the Company or any of its Subsidiaries, except (i) in
compliance
with applicable Environmental Laws and (ii) in a manner or in
quantities or
locations that would not require any investigation, cleanup or
remediation of
soil or groundwater under applicable Environmental Laws, other than
any presence
or release which would not reasonably be expected to have,
individually or in
the aggregate, a Company Material Adverse Effect; and neither the
Company nor
any of its Subsidiaries has received notice with respect to such
presence or
release.
(f)
Neither (i) the Company nor any Subsidiary, (ii) any
predecessors of the Company or any Subsidiary nor (iii) any entity
previously
owned by the Company or any Subsidiary, has transported or arranged
for the
treatment, storage, handling, disposal or transportation of any
Hazardous
Material at or to any off-site location which, to the Company's
Knowledge, has
resulted in, or would be reasonably expected to result in, a
liability to the
Company that has had, or would reasonably be expected to have,
individually or
in the aggregate, a Company Material Adverse Effect.
(g) There are no Liens or institutional or engineering controls
applicable to any Owned Real Property or, to the Company's
Knowledge, Leased
Real Property arising out of or pursuant to Environmental Laws that
have had, or
would reasonably be expected to have, individually or in the
aggregate, a
Company Material Adverse Effect.
(h) To the Company's Knowledge, there are no other facts,
activities, circumstances or conditions that have resulted in or
would be
reasonably expected to result in, the Company incurring a liability
or
obligation, pursuant to any applicable Environmental Laws that has
had, or would
reasonably be expected to have, individually or in the aggregate, a
Company
Material Adverse Effect.
Section 3.16 Insurance. Except as has not had, and would not
reasonably be expected to have, individually or in the aggregate, a
Company
Material Adverse Effect, (i) each insurance policy under which the
Company or
any of its Subsidiaries is an insured or otherwise the principal
beneficiary of
coverage (collectively, the "Insurance Policies") is in full force
and effect,
all premiums due thereon have been paid in full and the Company and
its
Subsidiaries are in compliance with the terms and conditions of
such Insurance
Policy, except as has not had, and would not reasonably be expected
to have,
individually or in the aggregate, a Company Material Adverse
Effect, (ii)
neither the Company nor any of its Subsidiaries is in breach or
default under
any Insurance Policy, and (iii) no event has occurred which, with
notice or
lapse of time, would constitute such breach or default, or permit
termination or
modification, under the policy.
Section 3.17 Regulatory Compliance.
(a) Except as has not had, and would not reasonably be expected
to
have, individually or in the aggregate, a Company Material Adverse
Effect, each
of the Company and its Significant Subsidiaries holds all licenses,
permits,
franchises, variances, registrations, exemptions, Orders and other
governmental
authorizations, consents, approvals and clearances, and has
submitted notices
to, all Governmental Entities, including all authorizations under
the Federal
Food, Drug and Cosmetic Act of 1938, as amended (the "FDCA"), the
Public Health
Service Act of 1944, as amended (the "PHSA"), and the regulations
of the United
States Food and Drug Administration (the "FDA") promulgated
thereunder, and any
other Governmental Entity that is concerned with the quality,
identity,
strength, purity, safety, efficacy or manufacturing of the Company
Products (any
such Governmental Entity, a "Company Regulatory Agency") necessary
for the
lawful operating of the businesses of the Company or any of its
Subsidiaries
(the "Company Permits"), and all such Company Permits are valid,
and in full
force and effect. Since January 1, 2006, there has not occurred any
violation
of, default (with or without notice or lapse of time or both)
under, or event
giving to others any right of termination, amendment or
cancellation of, with or
without notice or lapse of time or both, any Company Permit except
as has not
had, and would not reasonably be expected to have, individually or
in the
aggregate, a Company Material Adverse Effect. The Company and each
of its
Subsidiaries are in compliance in all material respects with the
terms of all
Company Permits, and no event has occurred that, to the Knowledge
of the
Company, would reasonably be expected to result in the revocation,
cancellation,
non-renewal or adverse modification of any Company Permit, except
as has not
had, and would not reasonably be expected to have, individually or
in the
aggregate, a Company Material Adverse Effect.
(b) Except as would not reasonably be expected to have,
individually
or in the aggregate, a Company Material Adverse Effect, since
January 1, 2006,
all applications, submissions, information and data utilized by the
Company or
the Company's Subsidiaries as the basis for, or submitted by or, to
the
Knowledge of the Company, on behalf of the Company or the Company's
Subsidiaries
in connection with, any and all requests for a Company Permit
relating to the
Company or any of its Subsidiaries, and its respective business and
Company
Products, when submitted to the FDA or other Company Regulatory
Agency, were
true and correct in all material respects as of the date of
submission, and any
updates, changes, corrections or modification to such applications,
submissions,
information and data required under applicable Laws have been
submitted to the
FDA or other Company Regulatory Agency.
(c) Since January 1, 2006, neither the Company, nor any of its
Subsidiaries, has committed any act, made any statement or failed
to make any
statement that would reasonably be expected to provide a basis for
the FDA or
any other Company Regulatory Agency to invoke its policy with
respect to "Fraud,
Untrue Statements of Material Facts, Bribery, and Illegal
Gratuities", or
similar policies, set forth in any applicable Laws, except as has
not had, and
would not reasonably be expected to have, individually or in the
aggregate, a
Company Material Adverse Effect.
(d) For the avoidance of doubt, the provisions of this Section
3.17
do not apply to Environmental Laws or Environmental Permits.
Section 3.18 Interested Party Transactions. Since January 1,
2006,
there have been no transactions, agreements, arrangements or
understandings
between the Company or any of its Subsidiaries on the one hand, and
the
Affiliates of the Company on the other hand (other than the
Company's
Subsidiaries), that would be required to be disclosed under Item
404 under
Regulation S-K under the Exchange Act and that has not been so
disclosed.
Section 3.19 Brokers and Finders. Neither the Company nor any of
its Subsidiaries has employed any broker or finder or incurred any
liability for
any brokerage fees, commissions or finders fees in connection with
the Merger or
the other transactions contemplated by this Agreement, except that
the Company
has employed Morgan Stanley & Co. Incorporated and Evercore
Group L.L.C. as its
financial advisors (the "Company Financial Advisors"), and the
Company has
heretofore made available to Parent a true and complete copy of all
agreements
between the Company and the Company Financial Advisors pursuant to
which such
firm would be entitled to any payment relating to the Merger and
the other
transactions contemplated by this Agreement.
Section 3.20 No Additional Representations.
(a) Except for the representations and warranties made by the
Company in this Article III, neither the Company nor any other
Person makes any
express or implied representation or warranty with respect to the
Company or its
Subsidiaries or their respective businesses, operations, assets,
liabilities,
conditions (financial or otherwise) or prospects, and the Company
hereby
disclaims any such other representations or warranties. In
particular, without
limiting the foregoing disclaimer, neither the Company nor any
other Person
makes or has made any representation or warranty to Parent, Merger
Sub, or any
of their Affiliates or Representatives with respect to (i) any
financial
projection, forecast, estimate, budget or prospect information
relating to the
Company, any of its Subsidiaries or their respective businesses, or
(ii) except
for the representations and warranties made by the Company in this
Article III,
any oral or written information presented to Parent, Merger Sub or
any of their
Affiliates or Representatives in the course of their due diligence
investigation
of the Company, the negotiation of this Agreement or in the course
of the
transactions contemplated hereby.
(b) The Company acknowledges and agrees that it (i) has had the
opportunity to meet with the management of Parent and to discuss
the business,
assets and liabilities of Parent and its Subsidiaries, (ii) has
been afforded
the opportunity to ask questions of and receive answers from
officers of Parent
and (iii) has conducted its own independent investigation of Parent
and its
Subsidiaries, their respective businesses, assets, liabilities and
the
transactions contemplated by this Agreement.
(c) Notwithstanding anything contained in this Agreement to the
contrary, the Company acknowledges and agrees that none of Parent,
Merger Sub or
any other Person has made or is making any representations or
warranties
relating to Parent or Merger Sub whatsoever, express or implied,
beyond those
expressly given by Parent and Merger Sub in Article IV hereof,
including any
implied representation or warranty as to the accuracy or
completeness of any
information regarding Parent furnished or made available the
Company, or any of
its Representatives. Without limiting the generality of the
foregoing, the
Company acknowledges that no representations or warranties are made
with respect
to any projections, forecasts, estimates, budgets or prospect
information that
may have been made available to the Company or any of its
Representatives.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except (i)
as disclosed in the Parent SEC Documents filed since January 1,
2008 but prior to the date hereof (but excluding any risk factor
disclosures
contained under the heading "Risk Factors," any disclosure of risks
included in
any "forward-looking statements" disclaimer or any other statements
that are
similarly non-specific or predictive or forward-looking in nature,
in each case,
other than any specific factual information contained therein) or
(ii) as set
forth in the Parent Disclosure Letter delivered by Parent to the
Company prior
to the execution of this Agreement (the "Parent Disclosure
Letter"), which
identifies items of disclosure by reference to a particular section
or
subsection of this Agreement (provided, however, that any
information set forth
in one section of such Parent Disclosure Letter also shall be
deemed to apply to
each other section and subsection of this Agreement to which its
relevance is
reasonably apparent), each of Parent and Merger Sub hereby
represents and
warrants to the Company as follows:
Section 4.1 Organization, Good Standing and Qualification. Each
of
Parent and Merger Sub and Parent's Significant Subsidiaries is a
corporation
duly organized, validly existing and in good standing (with respect
to
jurisdictions that recognize the concept of good standing) under
the Laws of its
respective jurisdiction of organization and has all requisite
corporate or
similar power and authority to own, lease and operate its
properties and assets
and to carry on its business as presently conducted, except with
respect to
Parent's Subsidiaries, where the failure to be so organized,
qualified or in
good standing or to have such power or authority when taken
together with all
other such failures, has not, and would not reasonably be expected
to have,
individually or in the aggregate, a Parent Material Adverse Effect.
Each of
Parent and its Significant Subsidiaries is duly qualified or
licensed to do
business and is in good standing (with respect to jurisdictions
that recognize
the concept of good standing) as a foreign corporation in each
jurisdiction
where the ownership, leasing or operation of its assets or
properties or conduct
of its business requires such qualification, except where the
failure to be so
organized, qualified or in good standing or to have such power or
authority when
taken together with all other such failures, has not, and would not
reasonably
be expected to have, individually or in the aggregate, a Parent
Material Adverse
Effect.
Section 4.2 Capital Structure.
(a) As of January 23, 2009, the authorized capital stock of
Parent
consisted of (i) 12,000,000,000 shares of Parent Common Stock of
which
7,357,577,519 shares were outstanding and 1,504,695,838 shares were
held in the
treasury of Parent and (ii) 27,000,000 shares of Preferred Stock,
no par value,
of which 1,805 shares were outstanding and no shares were held in
the treasury
of Parent. There are no other classes of capital stock of Parent
authorized or
outstanding. All issued and outstanding shares of the capital stock
of Parent
are, and when shares of Parent Common Stock and Parent Convertible
Preferred
Stock are issued in connection with the Merger or pursuant to
Section 1.8 and
Section 1.9, such shares will be, duly authorized, validly issued,
fully paid
and non-assessable and free of any preemptive rights.
(b) Since January 23, 2009 to the date of this Agreement, there
have
been no issuances of shares of the capital stock or equity
securities of Parent
or any other securities of Parent other than issuances of shares of
Parent
Common Stock pursuant to employee benefit, director or equity
compensation
plans, programs or arrangements sponsored or maintained by Parent
or any of its
Subsidiaries (the "Parent Benefit Plans"). There were outstanding
as of December
31, 2008 no options, warrants, calls, commitments, agreements,
arrangements,
undertakings or any other rights to acquire capital stock from
Parent other than
options, restricted stock and other rights to acquire capital stock
from Parent
representing in the aggregate the right to purchase approximately
476,000,000
shares of Parent Common Stock under the Parent Benefit Plans. No
options,
warrants, calls, commitments, agreements, arrangements,
undertakings or other
rights to acquire capital stock from Parent have been issued or
granted since
December 31, 2008 to the date of this Agreement other than pursuant
to the
Parent Benefit Plans or the ordinary course of business in
connection with
employment offer letters.
(c) No bonds, debentures, notes or other indebtedness of Parent
having the right to vote (or convertible into or exercisable for
securities
having the right to vote) on any matters on which holders of
capital stock of
Parent may vote are issued or outstanding.
(d) Except as otherwise set forth in this Section 4.2, as of
the
date of this Agreement, (i) there are no outstanding obligations of
Parent or
any of its Subsidiaries to repurchase, redeem or otherwise acquire
any shares of
capital stock of Parent or any of its Subsidiaries except for
purchases,
redemptions or other acquisitions of capital stock or other
securities (1)
required by the terms of the Parent Benefit Plans, (2) in order to
pay Taxes or
satisfy withholding obligations in respect of such Taxes in
connection with the
exercise of Parent stock options, the lapse of restrictions or
settlement of
awards granted pursuant to the Parent Benefit Plans, or (3)
required by the
terms of any plans, arrangements or agreements existing on the date
hereof
between the Parent or any of its Subsidiaries and any director or
employee of
the Parent or any of its Subsidiaries and (ii) there are no
outstanding
stock-appreciation rights, security-based performance units,
"phantom" stock or
other security rights or other agreements, arrangements or
commitments of any
character (contingent or otherwise) pursuant to which any Person is
or may be
entitled to receive any payment or other value based on the stock
price
performance of Parent or any of its Subsidiaries (other than
ordinary course
payments or commissions to sales representatives of Parent based
upon revenues
generated by them without augmentation as a result of the
transactions
contemplated hereby and with respect to awards granted under the
Parent Benefit
Plans).
(e) Except as set forth in Section 4.2(e) of the Parent
Disclosure
Letter and with respect to awards granted under the Parent Benefit
Plans, as of
the date of this Agreement, there are no outstanding obligations of
Parent or
any of its Subsidiaries (i) restricting the transfer of, (ii)
affecting the
voting rights of, (iii) requiring the sales, issuance, repurchase,
redemption or
disposition of, or containing any right of first refusal with
respect to, (iv)
requiring the registration for sale of or (v) granting any
preemptive or
antidilutive rights with respect to, any shares of Parent Common
Stock or other
Equity Interests in Parent or any of its Subsidiaries.
(f) The authorized capital stock of Merger Sub consists of
1,000
shares of common stock, par value $0.01 per share, all of which are
validly
issued and outstanding. All of the issued and outstanding capital
stock of
Merger Sub is, and at the Effective Time will be, owned by Parent,
and there are
(i) no other shares of capital stock or voting securities of Merger
Sub, (ii) no
securities of Merger Sub convertible into or exchangeable for
shares of capital
stock or voting securities of Merger Sub and (iii) no options or
other rights to
acquire from Merger Sub, and no obligations of Merger Sub to issue,
any capital
stock, voting securities or securities convertible into or
exchangeable for
capital stock or voting securities of Merger Sub.
Section 4.3 Corporate Authority. Each of Parent and Merger Sub
has
all requisite corporate power and authority and, except for the
adoption of this
Agreement by Parent as the sole stockholder of Merger Sub (which
adoption Parent
shall effect on the date hereof immediately following the execution
hereof), has
taken all corporate action necessary in order to execute, deliver
and perform
its obligations under this Agreement and to consummate the
transactions
contemplated hereby. This Agreement has been duly authorized and
validly
executed and delivered by Parent and Merger Sub, except for the
adoption of this
Agreement by Parent as the sole stockholder of Merger Sub, and,
assuming due
authorization, execution and delivery by the Company, constitutes a
legal, valid
and binding obligation of Parent enforceable against the Company in
accordance
with its terms, subject to the Bankruptcy and Equity Exception.
Section 4.4 Governmental Filings; No Violations; Etc.
(a) Except for the reports, registrations, consents, approvals,
permits, authorizations, notices and/or filings (i) pursuant to
Section 1.3 of
this Agreement, (ii) under the HSR Act, the Securities Act, the
Exchange Act,
the EC Merger Regulation and the China Anti-Monopoly Law, (iii)
required to be
made with the NYSE, (iv) for or pursuant to other applicable
foreign securities
Law approvals, state securities, takeover and "blue sky" laws, (v)
required to
be made with or to those foreign Governmental Entities regulating
competition
and antitrust Laws, (vi) required to be made under any
Environmental Law and
(vii) pursuant to the rules and regulations of the FDA and similar
foreign
Governmental Entities, no notices, reports or other filings are
required to be
made by Parent or Merger Sub with, nor are any registrations,
consents,
approvals, permits or authorizations required to be obtained by
Parent or Merger
Sub from, any Governmental Entity, in connection with the execution
and delivery
of this Agreement by Parent or Merger Sub and the consummation by
Parent and
Merger Sub of the Merger and the other transactions contemplated by
this
Agreement, except those that the failure to make or obtain would
not reasonably
be expected to have, individually or in the aggregate, a Parent
Material Adverse
Effect.
(b) None of the execution, delivery or performance of this
Agreement
by Parent or Merger Sub, the consummation by the Company and Merger
Sub of the
Merger or any other transaction contemplated by this Agreement, or
Parent's or
Merger Sub's compliance with any of the provisions of this
Agreement will (with
or without notice or lapse of time, or both): (i) conflict with or
violate any
provision of Parent's or Merger Sub's certificate of incorporation
or bylaws or
any equivalent organizational or governing documents of any of
Parent's or
Merger Sub's Subsidiaries; (ii) assuming that all consents,
approvals,
authorizations and permits described in this Section 4.4 have been
obtained and
all filings and notifications described in this Section 4.4 have
been made and
any waiting periods thereunder have terminated or expired, conflict
with or
violate any Law or Order applicable to Parent, Merger Sub, or
their
Subsidiaries, or any of their respective properties or assets; or
(iii) require
any consent or approval under, violate, conflict with, result in
any breach of
or any loss of benefit under, or constitute a default under, or
result in
termination or give to others any right of termination, vesting,
amendment,
acceleration or cancellation of, or result in the creation of a
Lien, other than
Permitted Liens, upon any of the respective properties or assets of
Parent or
any of its Significant Subsidiaries pursuant to, any Contract,
permit or other
instrument or obligation to which Parent, Merger Sub or any of
their
Subsidiaries is a party or by which they or any of their respective
properties
or assets may be bound or affected, except, with respect to clauses
(ii) and
(iii), for any such conflicts, violations, consents, approvals,
authorizations,
permits, breaches, defaults, losses, other occurrences or Liens
which would not
reasonably be expected to have, individually or in the aggregate, a
Parent
Material Adverse Effect.
Section 4.5 Parent Reports; Financial Statements.
(a) Since January 1, 2006, each of Parent and Merger Sub has
timely
filed or otherwise furnished (as applicable) all registration
statements,
prospectuses, forms, reports, definitive proxy statements,
schedules, statements
and documents required to be filed by it under the Securities Act
or the
Exchange Act, as the case may be, together with all certifications
required
pursuant to the Sarbanes-Oxley Act (such documents and any other
documents filed
by Parent or any of its Subsidiaries with the SEC, including
exhibits and other
information incorporated therein, as they have been supplemented,
modified or
amended since the time of filing, collectively, the "Parent SEC
Documents"). As
of their respective filing dates (or, if amended or superseded by a
filing prior
to the date of this Agreement, then on the date of such filing),
the Parent SEC
Documents (i) did not contain any untrue statement of a material
fact or omit to
state a material fact required to be stated therein or necessary in
order to
make the statements made therein, in light of the circumstances
under which they
were made, not misleading and (ii) complied in all material
respects with the
applicable requirements of the Exchange Act or the Securities Act,
as the case
may be, the Sarbanes-Oxley
