Exhibit 4.1
CORPORATE
GOVERNANCE
AND
VOTING AGREEMENT
THIS CORPORATE GOVERNANCE AND VOTING
AGREEMENT (this “ Agreement ”) is entered as of
, 2006 by and among
Dr. Patrick Soon-Shiong (“ PSS ”), and the
other persons executing signature pages hereto (PSS and such other
persons, together with any third party related to any PSS Party who
hereafter becomes a signatory hereto as contemplated by
Section 2.05, the “ PSS Parties ”), and
American Pharmaceutical Partners, Inc., a Delaware corporation (the
“ Company ”).
WHEREAS, the Company, American
BioScience, Inc., a California Corporation (“ ABI
”), PSS, and certain other ABI shareholders have entered into
an Agreement and Plan of Merger, dated as of November 27, 2005
(the “ Merger Agreement ”) pursuant to which,
among other things, ABI shall be merged with and into the Company
(the “ Merger ”), and all outstanding
shares of capital stock of ABI shall be converted into the right to
receive shares of Company Common Stock, all upon the terms and
subject to the conditions set forth in the Merger
Agreement;
WHEREAS, concurrently with the
execution of this Agreement, the PSS Parties are entering into a
Registration Rights Agreement dated as of the date hereof (the
“ RRA ”) which, among other things, sets forth
certain registration rights granted by the Company to the PSS
Parties and certain other recipients of Company Common Stock
pursuant to the Merger;
WHEREAS, immediately prior to the
Merger, the PSS Parties own approximately 99% of the outstanding
shares of ABI capital stock and desire that the Merger be completed
pursuant to the Merger Agreement;
WHEREAS, as an inducement for the
Company to enter into the Merger Agreement, ABI has agreed that it
is a condition to the Company’s obligation to consummate the
Merger that the PSS Parties execute and deliver this Agreement and
thereby establish (a) certain terms and conditions concerning
the voting of and future acquisitions of Company Common Stock by
the PSS Parties and their respective Affiliates, and
(b) certain other matters concerning the corporate governance
of the Company; and
WHEREAS, certain terms used herein
are defined in Article IV hereof.
NOW, THEREFORE, in consideration of
the foregoing and the mutual promises and agreements contained
herein, the parties hereto hereby agree as follows:
ARTICLE I
STOCK OWNERSHIP
SECTION 1.01. Acquisitions
of Company Common Stock . Each PSS Party shall not, and shall
not permit any of his or its Affiliates to, acquire Beneficial
Ownership of any
shares of Company Common Stock, in each case
whether by tender offer, market purchase, privately-negotiated
purchase, merger or other transaction, through the use of a
derivative instrument or voting agreement, by joining a Group, or
otherwise, except for:
(a) acquisitions of Beneficial
Ownership of Company Common Stock pursuant to the
Merger;
(b) acquisitions of Beneficial
Ownership of Company Common Stock approved in advance by a majority
of the Outside Independent Directors then in office;
(c) acquisitions of Beneficial
Ownership of Company Common Stock (i) upon the exercise of
options to acquire Company Common Stock held by PSS or any of his
Affiliates as of the date hereof or (ii) as a result of the
grant of options to acquire Company Common Stock hereafter approved
by the Company Board and the Outside Independent Directors or the
exercise of any such options;
(d) acquisitions of Company Common
Stock that would not cause the PSS Parties and their respective
Affiliates collectively to Beneficially Own more than 83.5% of the
then-outstanding shares of Company Common Stock; and
(e) acquisitions of Company Common
Stock pursuant to, or after the consummation of, a Qualifying
Tender Offer.
ARTICLE II
CORPORATE
GOVERNANCE
SECTION 2.01. Outside
Independent Directors .
(a) At each meeting of the
stockholders of the Company, or in connection with any action by
written consent, occurring prior to (but not including) the 2007
Annual Meeting at which at least three Outside Independent Director
candidates have been nominated for election by the Company, each
PSS Party shall vote or cause to be voted all of such PSS
Party’s Voting Control Shares in favor of the election of
three Outside Independent Director candidates.
(b) Prior to (but not including) the
2007 Annual Meeting, no PSS Party shall permit any of such PSS
Party’s Voting Control Shares to be voted (or permit any
written consent to be executed in respect of any of such PSS
Party’s Voting Control Shares) in favor of the removal of any
Outside Independent Directors, unless after giving effect to the
removal of such Outside Independent Directors and any simultaneous
or nearly simultaneous election or appointment of any directors,
the Board will include at least three Outside Independent
Directors.
SECTION 2.02. Proxy
Solicitation . No PSS Party shall, and each shall not permit
its Affiliates to, directly or indirectly solicit, or be a
participant in the solicitation of, proxies from stockholders of
the Company for the purpose of opposing a solicitation conducted by
or on behalf of the Company or the Company Board; provided ,
that the foregoing shall not (a) prevent
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any PSS Party or any of its Affiliates, in his,
her or its capacity as a stockholder of the Company, from
nominating candidates for election as directors of the Company or
presenting proposals for a vote or consent of the stockholders of
the Company or (b) restrict the ability of any PSS Party or
any of its Affiliates from voting or executing consents in respect
of shares of Company Common Stock Beneficially Owned by a PSS Party
or any of its Affiliates (or causing such shares to be voted or
consents executed in respect thereof) in their discretion on all
matters submitted for a vote or consent of the stockholders of the
Company.
SECTION 2.03 Board Action .
The Company, subject to the Company Board’s fiduciary duties,
shall take all necessary and desirable actions within its control
(including calling special meetings of the Company Board and the
stockholders of the Company) to effectuate the provisions and
intent of this Agreement.
SECTION 2.04. Restrictions
on Business Combinations . No PSS Party shall, or permit any of
its Affiliates to, (a) merge or consolidate with or into the
Company or any of its majority-owned subsidiaries, or
(b) acquire from the Company and/or any of its majority owned
subsidiaries, by purchase, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or in a series of
related transactions), except proportionately as a stockholder of
the Company, assets of the Company or any of its majority-owned
subsidiaries having an aggregate market value equal to 10% or more
of either the aggregate market value of all of the assets of the
Company determined on a consolidated basis or the aggregate market
value of all of the outstanding shares of Company Common Stock,
unless such transaction is approved in advance by a majority of the
Outside Independent Directors (and the other directors of the
Company Board, to the extent required by applicable law);
provided , that the foregoing shall not apply to prevent any
PSS Party or any of its Affiliates from merging (or require the
approval of a majority of the Outside Independent Directors in
order for any PSS Party or any of its Affiliates to merge) with the
Company after the consummation of a Qualifying Tender
Offer.
SECTION 2.05 No Circumvention
. No PSS Party shall, or permit its Affiliates to, take any action,
or refrain from taking any action, that would cause any Voting
Control Shares to cease to constitute Voting Control Shares prior
to the termination of this Agreement; provided ,
however , that sales or transfers of Voting Control Shares
to unrelated third parties on arm’s-length terms, or
transfers to related third parties who as a condition to such
transfer execute and deliver a counterpart signature page hereto
and thereby become a PSS Party, shall not be deemed to be a
violation of this Section 2.05.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES
SECTION 3.01 Representations
and Warranties of PSS and the PSS Parties . PSS and each other
PSS Party hereby jointly and severally represents and warrants to
the Company, as follows:
(a) Each PSS Party (if it is an
entity) is duly incorporated or otherwise organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization is duly qualified or licensed to do
business, and is in good
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standing, in each jurisdiction where
the character of the properties owned, leased or operated by it or
the nature of its business makes such qualification, licensing or
good standing necessary, except for such failures to be so duly
incorporated or organized, validly existing or in good standing,
qualified or licensed that, individually or in the aggregate, would
not reasonably be expected to have a material adverse effect on
such PSS Party’s ability to perform its obligations
hereunder.
(b) Each PSS Party (if it is an
entity) has all necessary corporate or other power and authority to
execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by each PSS Party (if
it is an entity), the performance by such PSS Party (if it is an
entity) of its obligations hereunder and the consummation by such
PSS Party (if it is an entity) of the transactions contemplated
hereby (i) have been duly and validly authorized by all
necessary corporate or other organizational action required on the
part of such PSS Party (if it is an entity) under applicable law or
the organizational, constituent or governing documents of such PSS
Party (if it is an entity), and (ii) (assuming compliance with
all requirements of applicable securities laws and the rules and
regulations of the NASDAQ National Market or any exchange upon
which the Company’ securities are listed or traded and that
the consents, approvals, authorizations and permits described in
Section 4.5(b) of the Company’s disclosure schedule to
the Merger Agreement have been obtained and all filings and
notifications described in such section of the Company’s
disclosure schedule have been made and any waiting periods
thereunder have terminated or expired) no other consents,
approvals, actions, proceedings or authorizations are necessary to
authorize the execution and delivery of this Agreement by the PSS
Parties or the performance of their respective obligations
hereunder, except as would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on such
PSS Party’s ability to perform its obligations hereunder.
This Agreement has been duly and validly executed and delivered by
each PSS Party and constitutes a legal, valid and binding
obligation of each PSS Party, enforceable against such PSS Party 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 principles of equity. The trustee(s) listed
on the signature page hereof with respect to the respective PSS
Parties who are trusts have the full right, power and authority to
cause such trusts to comply with the terms hereof without any
instructions, directions, authorizations, or approvals of any
beneficiary thereof or any other person, or have obtained all
necessary instructions, directions, authorizations, or
approvals.
(c) The execution and delivery of
this Agreement by each PSS Party does not, and the performance of
this Agreement by the PSS Parties will not, (i) conflict with
or violate any provision of the organizational, constituent or
governing documents of such PSS Party (if that PSS Party is an
entity), (ii) conflict with or violate any organizational
documents of any Affiliate of such PSS Party, or
(iii) (assuming compliance with all requirements of applicable
securities laws and the rules and regulations of the NASDAQ
National Market or any exchange upon which the Company’
securities are listed or traded and that the consents, approvals,
authorizations and permits described in Section 4.5(b) of the
Company’s disclosure schedule to the Merger Agreement have
been obtained and all filings and notifications described in such
section of the Company’s disclosure schedule have been made
and any waiting periods thereunder have terminated or expired)
conflict with or violate any contract binding on or any
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statute, law or order applicable to
such PSS Party or by which any property or asset of such PSS Party
is bound, except as would not, individually or in the aggregate,
reasonably be expected to materially limit or delay such PSS
Party’s ability to perform its obligations hereunder. There
are no contractual, legal or other restrictions or impediments to
the right, authority and ability of the PSS Parties to agree to and
perform, and to cause such respective PSS Parties’ Affiliates
to perform, the obligations contemplated hereby, except as would
not, individually or in the aggregate, reasonably be expected to
materially limit or delay such PSS Party’s ability to perform
its obligations hereunder.
(d) All shares of Company Common
Stock issued to the PSS Parties pursuant to the Merger are Voting
Control Shares for purposes of this Agreement.
SECTION 3.02 Representations and
Warranties of the Company . The Company hereby represents and
warrants to the PSS Parties, as follows:
(a) The Company is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Company is duly
qualified
