AMENDMENT NO. 2
to AMENDED AND RESTATED
GOVERNANCE AGREEMENT
This Amendment No. 2 ("Amendment No. 2") is made this 9th day of August,
2000 (the "Amendment Effective Date") by and between AMERICAN CYANAMID COMPANY,
a corporation organized and existing under the laws of the State of Maine
("CYANAMID") and a wholly-owned subsidiary of AMERICAN HOME PRODUCTS
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware and having its principal office at Five Giralda Farms, Madison, New
Jersey 07940 ("AHPC") and IMMUNEX CORPORATION, a corporation organized and
existing under the laws of the State of Washington and having its principal
office at 51 University Street, Seattle, Washington 98101 ("IMMUNEX"), further
amends the Amended and Restated Governance Agreement dated as of December 15,
1992, among American Cyanamid Company, Immunex Corporation and Lederle Oncology
Corporation as amended by Amendment No. 1 to the Governance Agreement, dated May
20, 1999 (as amended, the "Governance Agreement").
WHEREAS, AHPC and IMMUNEX have entered into a Letter Agreement, dated
August 9, 2000, under which AHPC requested and IMMUNEX agreed to file and filed
a shelf registration statement on Form S-3 with the Securities and Exchange
Commission on August 9, 2000 covering the proposed sale of up to 20 million
shares of newly issued Common Stock in a primary offering (the "Primary
Offering") and up to 50 million shares of Common Stock in a secondary offering
(the "Secondary Offering" and together with the Primary Offering, the
"Offering");
WHEREAS, AHPC and IMMUNEX have agreed to make certain amendments to the
Governance Agreement effective upon the closing of a Secondary Offering upon the
completion of which Cyanamid's Interest is below 45%;
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, each intending to be legally
bound, hereby agree as follows:
1. All initially capitalized terms used herein and not defined shall have
the meanings set forth in the Governance Agreement.
2. Effective upon the closing of a Secondary Offering upon the completion
of which Cyanamid's Interest is below 45%:
(a) Notwithstanding anything in Section 4.01 (b) and (c) of the
Governance Agreement to the contrary, at all times during which
AHPC has the right to designate no more than two Investor
Directors, IMMUNEX shall have the right to designate three
Management Directors and there shall be at least four
Independent Directors.
(b) For the duration of any lock up period under the letter
agreement between AHP and IMMUNEX dated August 9, 2000,
notwithstanding anything to the contrary in the Governance
Agreement, for purposes of determining whether Cyanamid's
Interest is below 35% no consideration shall be given to any
shares of IMMUNEX Common Stock issued during each lock up
period as a result of the exercise of any employee or director
stock options.
(c) Section 4.04 of the Governance Agreement will be amended as
follows:
(i) Section 4.04(g) shall be deleted in its entirety;
(ii) Each of Sections 4.04(h), (i) and (j) shall be amended
to delete the amount "$350,000" and substitute in its
place the amount "$15 million";
(iii) Section 4.04(l) shall be amended to delete the
subsection in its entirety and substitute the following:
"(l) the acquisition by the Company or any of its
Subsidiaries of technology or products under any
license or similar arrangements unless the purchase
price or the fair market value of such technology or
products (determined in accordance with Title II of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended and the rules and regulations promulgated
thereunder) is less than $15 million;
3. Except as otherwise set forth in this Amendment No. 2 or Amendment No.
1, all other terms and provisions of the Governance Agreement shall remain in
full force and effect.
4. This Amendment No. 2 may be executed in counterparts, each of which
shall be deemed an original and all of which shall constitute together one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2
as of the day and year first above written.
IMMUNEX CORPORATION
By:/s/ Edward V. Fritzky
Edward V. Fritzky
Chairman and Chief
Executive Officer
AMERICAN CYANAMID COMPANY
By:/s/ Jeffrey S. Sherman
Name: Jeffrey S. Sherman
Title: Vice President
AMERICAN HOME PRODUCTS CORPORATION
By:/s/ Kenneth J. Martin
Name: Kenneth J. Martin
Title: Senior Vice President and
Chief Financial Officer
