Exhibit 2.1
MASTER SEPARATION AND
DISTRIBUTION AGREEMENT
BETWEEN
PHARMACOPEIA,
INC.,
ACCELRYS INC.
AND
PHARMACOPEIA DRUG DISCOVERY,
INC.
TABLE OF CONTENTS
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MASTER SEPARATION AND
DISTRIBUTION AGREEMENT
THIS MASTER SEPARATION AND
DISTRIBUTION AGREEMENT (this “Agreement”) is entered
into as of April 30, 2004, between Pharmacopeia, Inc., a
Delaware corporation (“Pharmacopeia”), Accelrys Inc., a
Delaware corporation (“Accelrys”), and Pharmacopeia
Drug Discovery, Inc., a Delaware corporation
(“PDD”). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in
Article VI hereof.
RECITALS
WHEREAS, the Board of Directors of
Pharmacopeia (the “Pharmacopeia Board”) has determined
that it is appropriate and desirable and in the best interest of
the stockholders of Pharmacopeia for Pharmacopeia to separate the
PDD Group from the Pharmacopeia Group in a manner that would permit
Pharmacopeia to divest its entire ownership interest in PDD through
a pro-rata distribution of all of the outstanding shares of common
stock, par value $0.01 per share, of PDD (the “PDD Common
Stock”) to the holders of common stock, par value $0.0001 per
share, of Pharmacopeia (the “Pharmacopeia Common
Stock”), pursuant to the terms and subject to the conditions
of this Agreement (the “Distribution”);
WHEREAS, the Distribution is
intended to qualify as a tax-free transaction (except as to the
payment of cash in lieu of fractional shares) to Pharmacopeia and
its stockholders pursuant to Sections 355 and 368(a)(1)(D) of the
Internal Revenue Code of 1986, as amended (the “Code”),
and this Agreement is intended to constitute a “plan of
reorganization” within the meaning of Section 368 of the
Code;
WHEREAS, PDD has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form 10 to effect the registration of the
PDD Common Stock pursuant to the Exchange Act in connection with
the Distribution (the “Form 10”); and
WHEREAS, the parties intend in this
Agreement, including the Schedule and Exhibits hereto, to set
forth the principal arrangements between them regarding the
Distribution;
NOW, THEREFORE, in consideration of
the foregoing and the covenants and agreements set forth below, the
parties hereto agree as follows:
ARTICLE I
CERTAIN ACTIONS AT OR PRIOR TO THE DISTRIBUTION DATE
Section 1.1.
Corporate
Restructuring Transactions . Prior to the
Distribution, Pharmacopeia and PDD shall, and shall cause each of
their respective Subsidiaries to, as applicable, take such actions
as are necessary to cause, effect and consummate the
Corporate
Restructuring
Transactions. Pharmacopeia and PDD hereby agree that any one
or more of the Corporate Restructuring Transactions may be
modified, amended, supplemented or eliminated; provided such
modification, amendment, supplement or elimination (a) is necessary
or appropriate to divide the existing business of Pharmacopeia so
that the PDD Business shall be owned, directly or indirectly, by
PDD, and (b) does not, individually or in the aggregate, materially
adversely affect the Accelrys Business.
Section 1.2.
Charter and
Bylaws . Pharmacopeia and PDD
shall each take all actions that may be required to provide for the
adoption by PDD, at or prior to the Distribution Date, of the
Amended and Restated Certificate of Incorporation and the Amended
and Restated Bylaws in substantially the same forms attached hereto
as Exhibits A and B , respectively.
Section 1.3.
Documents to
Be Delivered By Pharmacopeia and PDD . Prior to the
Distribution, Pharmacopeia will execute and deliver (and where
applicable cause a member of the Pharmacopeia Group to execute and
deliver) to PDD (and/or to the appropriate member of the PDD
Group), and PDD will execute and deliver (and where applicable
cause a member of the PDD Group to execute and deliver) to
Pharmacopeia (and/or to the appropriate member of the Pharmacopeia
Group), all of the following items and agreements (collectively,
together with all agreements and documents contemplated by this
Agreement, including the agreements listed in Section 1.4, as
such agreements may be amended from time to time, the
“Ancillary Agreements”):
(a)
an Employee
Matters Agreement substantially in the form attached hereto as
Exhibit C (the “Employee Matters
Agreement”);
(b)
a Tax Sharing and
Indemnification Agreement substantially in the form attached hereto
as Exhibit D (the “Tax Agreement”);
(c)
a Transition
Services Agreement substantially in the form attached hereto as
Exhibit E (the “Transition Services
Agreement”);
(d)
a Patent and
Software License Agreement substantially in the form attached
hereto as Exhibit F (the “IP Agreement”);
and
(e)
such other
agreements, documents or instruments as the parties may agree are
necessary or desirable in order to achieve the purposes
hereof.
Unless otherwise provided herein,
the document deliveries contemplated in this Section 1.3 shall
occur prior to the Distribution.
Section 1.4.
Transfer and
Assignment of Certain Licenses and Permits .
(a)
Licenses and
Permits Relating to the PDD Business . Prior to
Distribution, Pharmacopeia shall (and, if applicable, shall cause
any other Person over which it has legal or effective direct or
indirect control to) duly and validly transfer or cause to be
duly
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and validly transferred to
the appropriate member of the PDD Group (as directed by PDD) all
material transferable licenses, permits and authorizations issued
by any governmental authority that relate exclusively to the PDD
Business but which are held in the name of any member of the
Pharmacopeia Group, or any of their respective employees, officers,
directors, stockholders or agents, including without limitation the
licenses and permits set forth on Schedule 1.4(a)
hereto.
(b)
Licenses and
Permits Relating to the Accelrys Business . Prior to the
Distribution, PDD shall (and, if applicable, shall cause any other
Person over which it has legal or effective direct or indirect
control to) duly and validly transfer or cause to be duly and
validly transferred to Accelrys (or such other member of the
Pharmacopeia Group as may be directed by Pharmacopeia) all material
transferable licenses, permits and authorizations issued by any
governmental authority that relate exclusively to the Accelrys
Business but which are held in the name of any member of the PDD
Group, or any of their respective employees, officers, directors,
stockholders or agents, including without limitation the licenses
and permits set forth on Schedule 1.4(b) hereto.
(c)
Joint Licenses
and Permits . Subject to the
provisions of Section 1.14 below, any license or permit to
which any party hereto (or any other member of such party’s
Group) is a party that inures to the benefit of both the Accelrys
Business and the PDD Business is hereby assigned in part so that
each party (or such other member of such party’s Group) is
entitled to the rights and benefits inuring to its business under
such agreement. Notwithstanding the foregoing, to the extent
that any such license or permit contains a mandatory arbitration
clause, non-solicitation or non-competition covenant or provision
restricting disclosure of confidential information (i) for the
benefit of the Accelrys Business, the full benefit of such clause,
covenant or provision is hereby retained by or assigned to the
applicable member of the Pharmacopeia Group and (ii) exclusively
for the benefit of the PDD Business, the full benefit of such
clause, covenant or provision is hereby retained or assigned to the
applicable member of the PDD Group.
Section 1.5.
Transfer and
Assignment of Certain Agreements .
(a)
Transfer and
Assignment of Accelrys Business Agreements . Subject to the
limitations set forth in this Section 1.5 and in
Section 1.14, PDD hereby, on behalf of itself and any of the
other members of its Group over which it has, or upon completion of
the Distribution will have, legal or effective direct or indirect
control, assigns, transfers and conveys to Accelrys (or such other
member of the Pharmacopeia Group as Pharmacopeia shall direct) all
of its (or such other member of its Group’s) right, title and
interest in and to any and all agreements that relate exclusively
to the Accelrys Business or any member of the Pharmacopeia Group,
including without limitation the licenses and agreements set forth
on Schedule 1.5(a) hereto.
(b)
Transfer and
Assignment of PDD Business Agreements . Subject to the
limitations set forth in this Section 1.5 and in
Section 1.14, Pharmacopeia hereby, on behalf of itself and any
of the other members of its Group over which it has legal or
effective direct or indirect control, assigns, transfers and
conveys to PDD (or such other member of the
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PDD Group as PDD shall
direct) all of its (or such member of its Group’s) right,
title and interest in and to any and all agreements that relate
exclusively to the PDD Business or any member of the PDD Group,
including without limitation the licenses and agreements set forth
on Schedule 1.5(b) hereto.
(c)
Joint
Agreements . Subject to the
provisions of Section 1.14 below, any agreement to which any
party hereto (or any other member of such party’s Group) is a
party that inures to the benefit of both the Accelrys Business and
the PDD Business is hereby assigned in part so that each party (or
such other member of such party’s Group) is entitled to the
rights and benefits inuring to its business under such agreement.
Notwithstanding the foregoing, to the extent that any such
agreement contains a mandatory arbitration clause, non-solicitation
or non-competition covenant or provision restricting disclosure of
confidential information (i) for the benefit of the Accelrys
Business, the full benefit of such clause, covenant or provision is
hereby retained by or assigned to the applicable member of the
Pharmacopeia Group and (ii) exclusively for the benefit of the PDD
Business, the full benefit of such clause, covenant or provision is
hereby retained or assigned to the applicable member of the PDD
Group.
(d)
Obligations of
Assignees . The assignee of any
agreement assigned, in whole or in part, hereunder (an
“Assignee”), hereby assumes and agrees to pay, perform
and fully discharge all obligations of the assignor under such
agreement (whether such obligations arose or were incurred prior
to, on or subsequent to the Distribution Date and irrespective of
whether such obligations have been asserted as of the Distribution
Date) or, in the case of a partial assignment under
Section 1.5(c) above, such Assignee’s related portion of
such obligations as determined in accordance with the terms of the
relevant agreement, where determinable on the face thereof, and
otherwise as determined in accordance with the practice of the
parties prior to the Distribution. Furthermore, the Assignee shall
indemnify and hold harmless such assignor to the extent such
assignor is not released from its obligations under the assigned
agreements.
Section 1.6.
Transfer and
Assignment of Intellectual Property .
(a)
Transfer and
Assignment of Accelrys Intellectual Property
. Subject
to the limitations set forth in this Section 1.6 and in
Section 1.14, PDD hereby, on behalf of itself and any of the
other members of its Group over which it has, or upon completion of
the Distribution will have, legal or effective direct or indirect
control, assigns, transfers and conveys to Accelrys (or such other
member of the Pharmacopeia Group as Pharmacopeia shall direct) all
of its (or such other member of its Group’s) right, title and
interest in and to any and all intellectual property that relates
exclusively to the Accelrys Business or any member of the
Pharmacopeia Group, including without limitation the Intellectual
Property set forth on Schedule 1.6(a) hereto.
(b)
Transfer and
Assignment of PDD Intellectual Property . Subject to the
limitations set forth in this Section 1.6 and in
Section 1.14, Pharmacopeia hereby, on behalf of itself and any
of the other members of its Group over which it has legal or
effective direct or indirect control, assigns, transfers and
conveys to PDD (or such other member of the PDD Group
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as PDD shall direct) all of
its (or such member of its Group’s) right, title and interest
in and to any and all intellectual property that relates
exclusively to the PDD Business or any member of the PDD Group,
including without limitation the Intellectual Property set forth on
Schedule 1.6(b) hereto.
(c)
Joint
Intellectual Property . Subject to the
provisions of Section 1.14 below, any intellectual property to
which any party hereto (or any other member of such party’s
Group) is a party that inures to the benefit of both the Accelrys
Business and the PDD Business is hereby assigned in part so that
each party (or such other member of such party’s Group) is
entitled to the rights and benefits inuring to its business under
such intellectual property.
Section 1.7.
Transfer and
Assignment of Inventory, Machinery and Books
.
(a)
Transfer and
Assignment of Accelrys Inventory, Machinery and Books
. Subject
to the limitations set forth in this Section 1.7 and in
Section 1.14, PDD hereby, on behalf of itself and any of the
other members of its Group over which it has, or upon completion of
the Distribution will have, legal or effective direct or indirect
control, assigns, transfers and conveys to Accelrys (or such other
member of the Pharmacopeia Group as Pharmacopeia shall direct) all
of its (or such other member of its Group’s) right, title and
interest in and to any and all Inventory, Machinery and Books that
relate exclusively to the Accelrys Business or any member of the
Pharmacopeia Group, including without limitation the Inventory,
Machinery and Books set forth on Schedule 1.7(a)
hereto.
(b)
Transfer and
Assignment of PDD Inventory, Machinery and Books
. Subject
to the limitations set forth in this Section 1.7 and in
Section 1.13, Pharmacopeia hereby, on behalf of itself and any
of the other members of its Group over which it has legal or
effective direct or indirect control, assigns, transfers and
conveys to PDD (or such other member of the PDD Group as PDD shall
direct) all of its (or such member of its Group’s) right,
title and interest in and to any and all Inventory, Machinery and
Books that relate exclusively to the PDD Business or any member of
the PDD Group, including without limitation the Inventory,
Machinery and Books set forth on Schedule 1.7(b)
hereto.
(c)
Joint
Inventory, Machinery and Books . Subject to the
provisions of Section 1.14 below, any Inventory, Machinery or
Books to which any party hereto (or any other member of such
party’s Group) is a party that inures to the benefit of both
the Accelrys Business and the PDD Business is hereby assigned in
part so that each party (or such other member of such party’s
Group) is entitled to the rights and benefits inuring to its
business under such Inventory, Machinery and Books.
Section 1.8.
Transfer and
Assignment of Remaining Assets .
(a)
Transfer and
Assignment of Accelrys Remaining Assets . Subject to the
limitations set forth in this Section 1.8 and in
Section 1.14, PDD hereby, on behalf of itself and any of the
other members of its Group over which it has, or upon completion of
the
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Distribution will have,
legal or effective direct or indirect control, assigns, transfers
and conveys to Accelrys (or such other member of the Pharmacopeia
Group as Pharmacopeia shall direct) all of its (or such other
member of its Group’s) right, title and interest in and to
any and all Remaining Assets that relate exclusively to the
Accelrys Business or any member of the Pharmacopeia
Group.
(b)
Transfer and
Assignment of PDD Remaining Assets . Subject to the
limitations set forth in this Section 1.8 and in
Section 1.14, Pharmacopeia hereby, on behalf of itself and any
of the other members of its Group over which it has legal or
effective direct or indirect control, assigns, transfers and
conveys to PDD (or such other member of the PDD Group as PDD shall
direct) all of its (or such member of its Group’s) right,
title and interest in and to any and all Remaining Assets that
relate exclusively to the PDD Business or any member of the PDD
Group.
(c)
Joint
Remaining Assets . Subject to the
provisions of Section 1.14 below, any Remaining Assets to
which any party hereto (or any other member of such party’s
Group) is a party that inures to the benefit of both the Accelrys
Business and the PDD Business is hereby assigned in part so that
each party (or such other member of such party’s Group) is
entitled to the rights and benefits inuring to its business under
such Remaining Assets. Notwithstanding the foregoing, to the extent
that any such agreement contains a mandatory arbitration clause,
non-solicitation or non-competition covenant or provision
restricting disclosure of confidential information (i) for the
benefit of the Accelrys Business, the full benefit of such clause,
covenant or provision is hereby retained by or assigned to the
applicable member of the Pharmacopeia Group and (ii) exclusively
for the benefit of the PDD Business, the full benefit of such
clause, covenant or provision is hereby retained or assigned to the
applicable member of the PDD Group.
Section 1.9.
Consents
. The
parties hereto shall use their commercially reasonable efforts to
obtain any third-party consents or approvals that are required to
consummate the Corporate Restructuring Transactions, the
Distribution and the other transactions contemplated
herein.
Section 1.10.
Other
Transactions . Prior to the
Distribution, Pharmacopeia and PDD shall have consummated those
other transactions in connection with the Corporate Restructuring
Transactions and the Distribution that are contemplated by the
Information Statement and not specifically referred to in Sections
1.1 through 1.9 above; provided , however , that such
other transactions do not, individually or in the aggregate,
materially adversely affect the Accelrys Business.
Section 1.11.
Certain
Financial and Other Arrangements .
(a)
Settlement of
Intercompany Accounts Between the Pharmacopeia Group and the PDD
Group . All intercompany
receivables, payables and loans outstanding as of the Distribution
Date (other than receivables, payables and loans otherwise
specifically provided for in any of this Agreement or the Ancillary
Agreements), including, without limitation, in
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respect of any cash
balances, any cash balances representing deposited checks or drafts
for which only a provisional credit has been allowed or any cash
held in any centralized cash management system, between any member
of the Pharmacopeia Group and any member of the PDD Group shall, as
of the close of business on the Distribution Date, be offset
against each other. To the extent that there is a net
intercompany payable balance from the PDD Group to the Pharmacopeia
Group, the intercompany balance remaining shall be forgiven in its
entirety and treated as a capital contribution from Pharmacopeia to
PDD. To the extent that there is a net intercompany payable
balance from the Pharmacopeia Group to the PDD Group, the
intercompany balance remaining shall be deemed to have been
satisfied in its entirety by a portion of the cash contributed to
PDD pursuant to Section 1.11(b) equal to the amount of the
intercompany balance.
(b)
Contribution
of Cash to PDD Group . Notwithstanding any
provision herein to the contrary, prior to the Distribution, the
Pharmacopeia Group shall contribute an amount of cash and
investment securities to the PDD Group sufficient such that upon
consummation of the Distribution, the PDD Group shall have a
positive cash balance of $46,500,000 (FORTY-SIX MILLION FIVE
HUNDRED THOUSAND DOLLARS). Any investment securities so
contributed shall be deposited in a brokerage account specified by
PDD.
(a)
As of the
Distribution Date, PDD hereby agrees to assume and discharge all of
the PDD Liabilities.
(b)
Each of
Pharmacopeia and Accelrys acknowledges its responsibility to
discharge all of the Pharmacopeia Liabilities.
Section 1.13.
Bulk
Assignment by Pharmacopeia to Accelrys . Prior to the
Distribution, but after giving effect to all transactions described
in Sections 1.1 through 1.11 hereof, all assets held by
Pharmacopeia (other than the stock of PDD) shall be transferred to
Accelrys.
Section 1.14.
Transfer Not
Effected Prior to the Distribution; Transfer Deemed Effective as of
the Distribution Date . To the extent that
any transfer contemplated by Sections 1.1 through 1.12 shall not
have been consummated prior to the Distribution, the parties hereto
shall cooperate (and shall cause each of their respective
Affiliates and each member of their respective Groups over which
they have legal or effective direct or indirect control to
cooperate) to effect such transfers as promptly following the
Distribution Date as shall be practicable. Nothing herein
shall be deemed to transfer or require the transfer of any assets
or the assumption of any Liabilities which by their terms or
operation of law cannot be transferred or assumed (including,
without limitation, the assignment of any agreement if the consent,
waiver or approval of another party is required for such assignment
which consent, waiver, or approval has not been given or if such
assignment otherwise would constitute a breach of, or cause a loss
of benefits (except as specifically provided in
Section 1.5(c)) under, any such agreement); provided ,
however , that the parties hereto shall cooperate (and shall
cause each of their respective Affiliates and each member of their
respective Groups over which they have legal or
effective
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direct or indirect control
to cooperate) to seek to obtain any necessary consents, waivers or
approvals for the transfer of all assets and Liabilities
contemplated to be transferred or assigned pursuant to this
Article I. In the event that any such transfer of assets
or Liabilities has not been consummated or any required consent,
waiver or approval has not been obtained, from and after the
Distribution Date, the party retaining such asset or Liability (or,
as applicable, such other member or members of such party’s
Group) shall hold such asset in trust for the use and benefit of
the party entitled thereto (at the expense of the party entitled
thereto) or retain such Liability for the account of the party by
whom such Liability is to be assumed pursuant hereto, as the case
may be, and take such other action as may be reasonably requested
by the party to whom such asset is to be transferred or by whom
such Liability is to be assumed (including the enforcement, for the
benefit of the intended assignee hereunder, of any provision of any
agreement the assignment of which has not occurred as contemplated
in this Agreement), as the case may be, in order to place such
party, insofar as is reasonably possible, in the same position as
would have existed had such asset or Liability been transferred or
assumed as contemplated hereby. As and when any such asset or
Liability becomes transferable or assumable, such transfer shall be
effected forthwith. As of the Distribution Date, each party
hereto (or, if applicable, such other members of such party’s
Group) shall be deemed to have acquired (or as applicable,
retained) complete and sole beneficial ownership over all of the
assets, together with all rights, powers and privileges incident
thereto, and shall be deemed to have assumed in accordance with the
terms of this Agreement all of the Liabilities, and all duties,
obligations and responsibilities incident thereto, which such party
(or any other member of such party’s Group) is entitled to
acquire or required to assume pursuant to the terms of this
Agreement.
(a)
Cooperation
. PDD shall
cooperate with Pharmacopeia to accomplish the Distribution and
shall, at Pharmacopeia’s direction, promptly take any and all
actions necessary or desirable to effect the Distribution.
Pharmacopeia may select any investment bank or manager in
connection with the Distribution, as well as any financial printer,
solicitation and/or exchange agent and financial, legal, accounting
and other advisors for Pharmacopeia; provided , that,
nothing herein shall prohibit PDD from engaging (at its own
expense) its own financial, legal, accounting and other advisors in
connection with the Distribution. PDD and Pharmacopeia, as
the case may be, will provide to the distribution or exchange agent
to be appointed by Pharmacopeia (the “Distribution
Agent”) all share certificates and any information required
in order to complete the Distribution.
(b)
Distribution
Mechanics .
(i)
Subject to
Sections 2.3, 2.4 and 2.5, on or prior to the Distribution Date,
Pharmacopeia will deliver to the Distribution Agent for the benefit
of holders of Pharmacopeia Common Stock on the Record Date, a
single stock certificate, endorsed by Pharmacopeia in blank,
representing all of the outstanding shares of PDD Common Stock
then
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owned by Pharmacopeia, and
shall cause the transfer agent for the Pharmacopeia Common Stock to
instruct the Distribution Agent to distribute on or as soon as
practicable after the Distribution Date the appropriate number of
such shares of PDD Common Stock to each such holder or designated
transferee or transferees of such holder of Pharmacopeia Common
Stock. The Distribution shall be effective at 11:59 p.m.
Eastern Standard Time on the Distribution Date.
(ii)
Subject to
Sections 2.3, 2.4 and 2.5, each holder of Pharmacopeia Common Stock
on the Record Date (or such holder’s designated transferee or
transferees) will be entitled to receive in the pro-rata
distribution a number of shares of PDD Common Stock equal to the
number of shares of Pharmacopeia Common Stock held by such holder
on the Record Date multiplied by the distribution ratio determined
by the Pharmacopeia Board when it declares the Distribution.
Pharmacopeia and PDD, as the case may be, will provide to the
Distribution Agent all share certificates and any information
required in order to complete the Distribution on the basis
specified above.
Section 2.2.
Actions In
Connection with the Distribution .
(a)
Form
10 . PDD shall file such
amendments and supplements to the Form 10, and such amendments as
may be necessary in order to cause the same to become and remain
effective as required by Law, including filing such amendments and
supplements to the Form 10 as may be required by the Commission or
federal, state or foreign securities Laws. PDD shall mail to
the holders of Pharmacopeia Common Stock, at such time on or prior
to the Distribution Date as Pharmacopeia shall determine, the
Information Statement included in the Form 10, as well as any other
information concerning PDD, its business, operations and
management, the Distribution and such other matters as Pharmacopeia
shall reasonably determine are necessary and as may be required by
Law.
(b)
Other
Documentation . Pharmacopeia and PDD
shall also cooperate in preparing, filing with the Commission and
causing to become effective registration statements or amendments
thereof which are required to reflect the establishment of, or
amendments to, any employee benefit and other plans necessary or
appropriate in connection with the Distribution or other
transactions contemplated by this Agreement and the Ancillary
Agreements, including the Employee Matters Agreement.
Promptly after receiving a request to do so from Pharmacopeia, to
the extent requested by Pharmacopeia, PDD shall prepare and, to the
extent required under applicable Law, file with the Commission any
such documentation that Pharmacopeia determines are necessary or
desirable to effectuate the Distribution, and Pharmacopeia and PDD
shall each use its reasonable commercial efforts to obtain all
necessary approvals from the Commission with respect thereto as
soon as practicable.
(c)
Blue
Sky . Promptly after
receiving a request to do so from Pharmacopeia, PDD shall take all
such actions as may be necessary or appropriate under the
securities or blue sky laws of the United States (and any
comparable Laws under any foreign jurisdiction) in connection with
the Distribution.
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(d)
Nasdaq
Listing . Promptly after
receiving a request to do so from Pharmacopeia, PDD shall prepare
and file, and shall use its reasonable commercial efforts to have
approved and made effective, an application for the original
listing of the PDD Common Stock to be distributed in the
Distribution on the Nasdaq National Market.
(e)
Resignation of
Directors and Officers . Except as set forth
on Schedule 2.2(e) hereto, immediately prior to the final
consummation of the Distribution, (i) each person who is an
officer, director or employee of any member of the Pharmacopeia
Group and an officer, director or employee of any member of the PDD
Group immediately prior to the Distribution Date (each a
“Shared Employee”) and who is to continue as an
officer, director or employee of any member of the Pharmacopeia
Group after the Distribution Date shall resign from each of such
person’s positions with each member of the PDD Group, and
(ii) each such Shared Employee who is to continue as an officer,
director or employee of any member of the PDD Group after the
Distribution Date, shall resign from each of such person’s
positions with each member of the Pharmacopeia Group;
(f)
Conditions
. PDD shall
take all reasonable steps necessary and appropriate to cause the
conditions set forth in Section 2.4 to be satisfied and to
effect the Distribution, or any portion thereof, on the
Distribution Date.
Section 2.3.
Sole
Discretion of Pharmacopeia . Pharmacopeia shall,
in its sole and absolute discretion, determine the date of the
consummation of the Distribution and all terms of the Distribution,
including, without limitation, the form, structure and terms of any
transaction(s) and/or offering(s) to effect the Distribution and
the timing of and conditions to the consummation thereof. In
addition, Pharmacopeia may at any time and from time to time until
the completion of the Distribution decide to abandon the
Distribution or modify or change the terms of the Distribution,
including, without limitation, by accelerating or delaying the
timing of the consummation of all or part of the
Distribution.
Section 2.4.
Conditions To
Distribution . Subject to
Section 2.3, the following are conditions to the consummation
of any part of the Distribution. The conditions are for the sole
benefit of Pharmacopeia and shall not give rise to or create any
duty on the part of Pharmacopeia or the Pharmacopeia Board to waive
or not waive any such condition.
(a)
Effective Form
10 . The Form 10 shall
have been declared effective under the Exchange Act, with no stop
order in effect with respect thereto, and the Information Statement
shall have been mailed to the holders of Pharmacopeia Common
Stock.
(b)
Blue Sky
Laws . The actions and
filings with regard to state securities and blue sky laws of the
United States (and any comparable Laws under any foreign
jurisdictions) described in Section 2.2(c) shall have been
taken and, where applicable, have become effective or been
accepted.
(c)
Nasdaq
Listing . The PDD Common Stock
to be delivered in the Distribution shall have been approved for
listing on the Nasdaq National Market.
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(d)
Charter and
Bylaws . PDD’s Amended
and Restated Certificate of Incorporation and Amended and Restated
Bylaws in substantially the forms attached hereto as Exhibits
A and B , respectively, shall be in effect.
(e)
Ancillary
Agreements . Each of the Ancillary
Agreements shall have been duly executed and delivered by the
parties thereto and shall be in full force and effect.
(f)
Governmental
Approvals . Any material
Governmental Approvals necessary to consummate the Distribution or
any portion thereof shall have been obtained and be in full force
and effect.
(g)
No Legal
Restraints . No order, injunction
or decree issued by any court or agency of competent jurisdiction
or other legal restraint or prohibition preventing the consummation
of all or any portion of the Distribution shall be in effect, and
no other event outside the control of Pharmacopeia shall have
occurred or failed to occur that prevents the consummation of all
or any portion of the Distribution.
(h)
No Inadvisable
Event . The Pharmacopeia
Board shall have approved the Distribution and shall have not
determined that any events or developments shall have occurred that
make it inadvisable to effect the Distribution.
Section 2.5.
Fractional
Shares . No certificates
representing fractional shares of PDD Common Stock will be
distributed in the Distribution. As soon as practicable after the
consummation of any portion of the Distribution, Pharmacopeia shall
direct the Distribution Agent to determine the number of whole
shares and fractional shares of PDD Common Stock allocable to each
holder of record or beneficial owner of Pharmacopeia Common Stock
otherwise entitled to fractional shares of PDD Common Stock, to
aggregate all such fractional shares and sell the whole shares
obtained thereby at the direction of Pharmacopeia, in open market
transactions or otherwise, in each case at then prevailing trading
prices, and to cause to be distributed to each such holder or for
the benefit of each such beneficial owner to which a fractional
share shall be allocable such holder or owner’s ratable share
of the proceeds of such sale, after making appropriate deductions
for any amount required to be withheld for United States federal
income tax purposes and to repay expenses reasonably incurred by
the Distribution Agent, including all brokerage charges,
commissions and transfer taxes, in connection with such sale.
Pharmacopeia and the Distribution Agent shall use their reasonable
commercial efforts to aggregate the shares of Pharmacopeia Common
Stock that may be held by any beneficial owner thereof through more
than one account in determining the fractional share allocable to
such beneficial owner.
ARTICLE III
COVENANTS AND OTHER MATTERS
Section 3.1.
Further
Assurances and Agreements . In addition to the
actions specifically provided for elsewhere in this Agreement and
the specific agreements, documents and instruments annexed to this
Agreement, each of Pharmacopeia and PDD shall use its
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reasonable efforts, prior
to, on and after the Distribution Date, to take, or cause to be
taken, all actions, and do, or cause to be done, all things, and
agree to execute, or cause to be executed, by the appropriate
parties and deliver, as appropriate, such other agreements,
instruments and other documents, as such action, thing, agreement,
instrument or other document may be necessary or desirable in order
to consummate and make effective the transactions contemplated by
this Agreement and the Ancillary Agreements.
(a)
Each of
Pharmacopeia and PDD, in their respective capacities as a
Transferring Party, at the request of the Receivi
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