EXHIBIT IX
MDP ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS AGREEMENT, dated June 26, 2000 (this "Agreement"), by and among
Immunex Corporation, a Washington corporation ("Immunex"), American Home
Products Corporation, a Delaware corporation ("AHP"), American Cyanamid Company,
a Maine corporation ("Cyanamid"), and MDP Holdings, Inc, a Delaware corporation
("MDP").
WHEREAS, Immunex entered into the Amended and Restated Agreement and Plan
of Merger, dated as of December 15, 1992 (the "Immunex Merger Agreement"), with
Cyanamid, Lederle Parenterals, Inc. ("LPI") and Lederle Oncology Corporation
("LOC") and an Amended and Restated Governance Agreement, dated as of December
15, 1992 (the "Governance Agreement"), with Cyanamid and LOC;
WHEREAS, upon consummation of the merger contemplated by the Immunex Merger
Agreement (the "Immunex Merger"), Cyanamid and LPI became the owners of
approximately 53.5% of the issued and outstanding common stock of Immunex (the
"Immunex Common Stock");
WHEREAS, the Governance Agreement was entered into by the parties in
connection with the Immunex Merger Agreement in order to establish certain terms
and conditions concerning (a) the corporate governance of Immunex after the
Immunex Merger and (b) the acquisition and disposition of securities of Immunex
by Cyanamid;
WHEREAS, AHP entered into an Agreement and Plan of Merger, dated August 17,
1994 (the "AHP Merger Agreement"), with AC Acquisition Corp. and Cyanamid,
pursuant to which AHP acquired all of the issued and outstanding capital stock
of Cyanamid;
WHEREAS, following the consummation of the tender offer required by the AHP
Merger Agreement, AHP became the beneficial owner of the shares of Immunex
Common Stock owned by Cyanamid;
WHEREAS, AHP and Immunex entered into an Agreement, dated September 23,
1994, pursuant to which (a) Immunex made certain representations regarding its
Board of Directors' approval of the beneficial ownership by AHP of the Immunex
Common Stock and (b) AHP agreed to take certain actions to assure Cyanamid's and
its subsidiary's compliance with the Governance Agreement;
WHEREAS, AHP and Cyanamid each has requested that Immunex cooperate in the
transfer of all of the Immunex common stock currently held by Cyanamid (the
"Cyanamid Holdings") to MDP, a wholly-owned subsidiary of Cyanamid, and Immunex
has, on the terms set forth below, agreed to take such actions necessary to
facilitate such transfer;
WHEREAS, in connection with such transfer of the Cyanamid Holdings,
Cyanamid desires to assign certain of its rights under the Governance Agreement,
including its registration rights with regard to the Cyanamid Holdings, to MDP;
WHEREAS, Section 9.04 of the Governance Agreement provides that Cyanamid
may assign all or any of its rights and obligations thereunder to any of its
wholly-owned subsidiaries; provided that (a) no such assignment will relieve
Cyanamid of its obligations under the Governance Agreement and (b) Cyanamid may
assign its rights as provided in Section 6.13 thereunder.
WHEREAS, Section 6.13 of the Governance Agreement provides that Cyanamid
may transfer its registration rights under the Governance Agreement to a
wholly-owned subsidiary of Cyanamid; provided that (a) Cyanamid complies with
certain notice requirements, (b) such transferee agrees in writing, in a form
reasonably satisfactory to Immunex, to be bound as a Holder (defined in the
Governance Agreement) by the registration rights provisions of the Governance
Agreement, and (c) immediately following such transfer Holder acknowledges that
the future disposition of the transferred securities by the transferee is
restricted under the Securities Act of 1933, and the rules and regulations
promulgated thereunder, as amended.
NOW, THEREFORE, in consideration of the foregoing and other mutual promises
and agreements contained herein, Immunex, AHP, Cyanamid and MDP hereby agree as
follows:
1. Defined Terms. Capitalized terms used herein and not defined have the
meanings given to such terms in the Governance Agreement.
2. Status of MDP. AHP, Cyanamid and MDP each represents and warrants that
(a) MDP is a wholly-owned subsidiary of Cyanamid duly organized, validly
existing and in good standing under the laws of Delaware and (b) MDP has the
corporate power and authority and legal right to enter into this Agreement.
3. Assignment of Subscription Rights. Pursuant to Section 9.04 of the
Governance Agreement, Cyanamid hereby assigns to MDP all of Cyanamid's rights
and obligations under Article II of the Governance Agreement. Immunex hereby
acknowledges such assignment. Cyanamid, Immunex and MDP each agree that such
assignment shall be revocable by Cyanamid upon delivery of written notice to
Immunex.
4. Acceptance of Subscription Rights and Transfer Restrictions. MDP hereby
accepts the rights and obligations under Article II of the Governance Agreement
assigned to it by Cyanamid. In addition, in connection with its ownership of
securities of Immunex, MDP agrees that, to the extent that the transfer
restrictions within Article V of the Governance Agreement would apply to
securities of Immunex held by Cyanamid, MDP shall be bound by all such
restrictions.
5. Assignment of Registration Rights. Pursuant to Section 6.13 of the
Governance Agreement, Cyanamid hereby assigns to MDP all of Cyanamid's
registration rights as a Holder of the Cyanamid Holdings. In accordance with
Section 6.13 of the Governance Agreement, Cyanamid hereby notifies Immunex of
the transfer of the Cyanamid Holdings to MDP, which has its principal place of
business at 1403 Foulk Road, Suite 102, Wilmington, Delaware 19803.
6. Acceptance of Registration Rights and Obligations. MDP hereby accepts
the rights and obligations under Article VI of the Governance Agreement assigned
to it by Cyanamid. In addition, in accordance with Section 6.13 of the
Governance Agreement, MDP hereby agrees to be bound as a Holder by the
provisions of Article VI of the Governance Agreement. Immunex hereby
acknowledges the assignment of registration rights to MDP and its satisfaction
with MDP's assumption of the obligations of Article VI of the Governance
Agreement.
7. Protection of Governance Agreement. During the term of the Governance
Agreement:
7.1 AHP and Cyanamid each agrees that (a) it will not take action to cause
MDP to violate its obligations hereunder or under the Governance Agreement and
(b) it will not fail to permit MDP to take any action as may be required to be
taken by MDP to perform such obligations.
7.2 If either AHP or Cyanamid directly or indirectly causes the separate
existence of MDP to cease (whether by merger, consolidation or other similar
business combination transaction), or causes MDP to transfer all or
substantially all of its assets in one transaction or in a series of related
transaction, AHP and Cyanamid will each, in connection therewith, make
appropriate provision so that any successor to, or transferee of all or
substantially all of the assets of, MDP that is an affiliate of AHP will be
bound by and required to perform the obligations of MDP under this Agreement and
the Governance Agreement.
8. Amendments, Waivers. Any provision of this Agreement may be amended or
waived if, and only if, such amendment or waiver is in writing and signed,
in the case of an amendment, by Immunex, AHP, Cyanamid and MDP, or in the case
of a waiver, by the party against whom the waiver is to be effective.
9. Counterparts. This Agreement may be executed and delivered (including by
way of facsimile transmission) in counterparts, each of which, when executed
and delivered, shall be deemed to be an original and all of which, taken
together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their representative authorized officer as of the day and year
first above written.
IMMUNEX CORPORATION
By:_________________________________
Name:
Title:
AMERICAN HOME PRODUCTS CORPORATION
By:_________________________________
Name:
Title:
AMERICAN CYANAMID COMPANY
By:_________________________________
Name:
Title:
MDP HOLDINGS, INC.
By:_________________________________
Name:
Title:
