<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): NOVEMBER 11, 1999
MOLECULAR BIOSYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 1-10546 36-3078632
(STATE OF INCORPORATION) (COMMISSION FILE NUMBER) (I.R.S. IDENTIFICATION NO.)
10030 BARNES CANYON ROAD, SAN DIEGO, CALIFORNIA 92121
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (858) 812-7001
<PAGE>
Item 5. Other Events
DEFINITIVE AGREEMENT TO MERGE WITH PALATIN TECHNOLOGIES, INC.
On November 12, 1999, the Molecular Biosystems, Inc. (the "Company")
and Palatin Technologies of Princeton, New Jersey jointly announced that they
had signed a definitive agreement to merge. Under the agreement, stockholders of
the Company will receive shares of common stock of Palatin in exchange for their
MBI common stock. The exchange ratio under the merger agreement will result in
shareholders of each company owning approximately 50% of the merged entity, on a
fully diluted basis, which will operate under the name Palatin Technologies and
will be headquartered in Princeton. The merger is subject to shareholder
approval. The stock exchange will be accounted for using purchase accounting.
Item 7. Financial Statements and Exhibits
<TABLE>
<S> <C>
10.1 Press release dated November 12, 1999.
10.2 Agreement and Plan of Merger dated November 11, 1999
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MOLECULAR BIOSYSTEMS, INC.
/s/ ELIZABETH HOUGEN
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Elizabeth Hougen
Executive Director, Finance and Chief Financial Officer
(Principal Financial and Accounting Officer)
11/23/99
- -------------------------------
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
<S> <C>
10.1 Press release dated November 12, 1999.
10.2 Agreement and Plan of Merger dated November 11, 1999.
</TABLE>
<PAGE>
FOR RELEASE NOVEMBER 12, 1999 AT 7:30 AM EST
- --------------------------------------------
Contact: PALATIN TECHNOLOGIES INC: MOLECULAR BIOSYSTEMS, INC:
------------------------- --------------------------
Stephen T. Wills Elizabeth Hougen
Chief Financial Officer Chief Financial Officer
609/520-1911 858/812-7179
Joe Allen (investors) Patricia Sullivan
[email protected] Manager Investor Relations
Lawrence Watts (media) 858/812-7146
773-338-1863 [email protected]
-----------
Kari Rinkeviczie (media) or Sherrie Good (media)
[email protected] [email protected]
------------------- ----------------------
Allen & Caron Inc Allen & Caron Inc
212/698-1360 714/957-8440
FDA-APPROVED PRODUCT ON THE MARKET,
- -----------------------------------
ROBUST PRODUCT PIPELINE
- -----------------------
PALATIN TECHNOLOGIES & MOLECULAR BIOSYSTEMS
AGREE TO MERGE
PRINCETON, NJ AND SAN DIEGO, CA NOVEMBER 12, 1999 -- Palatin Technologies Inc.
(Nasdaq: PLTN) (Palatin) and Molecular Biosystems, Inc. (NYSE: MB) (MBI)
announced today that the Boards of Directors of both companies have approved a
definitive agreement to merge the two companies to create a stronger company
with a broader product offering and a robust product pipeline. The combined
company will keep the Palatin name and be headquartered in Princeton.
Upon completion of the merger, Palatin will have a Board of Directors comprised
of six members - four selected from Palatin's existing Board and two selected
from MBI's existing Board. Edward J. Quilty, Palatin's Chairman, President and
CEO will continue in his current capacity after the merger and Bobba Venkatadri,
MBI's President and CEO, will serve as a consultant and remain on the board. The
definitive agreement signed yesterday specifies that the merger is subject to
the approval of the stockholders of both companies. Under the agreement,
stockholders of MBI will receive 0.5250 shares of Palatin common stock for each
share of MBI common stock. The stock swap will be accounted for using purchase
accounting. Upon completion of the transaction, stockholders of Palatin and
stockholders of MBI will each own approximately 50% of the new company.
The combined Palatin will have one FDA-approved product on the market
(OPTISON-Registered Trademark-); one product which will be filed for FDA
clearance later this month (LeuTech-TM-), and a variety of promising
therapeutic and diagnostic agents in the development pipeline. OPTISON is
approved for ultrasound imaging of the heart wall and cavity, and LeuTech is
an infection imaging agent. Products in development include MB-840, a
liver-selective CT imaging agent with therapeutic potential, and PT-14,
Palatin's drug for sexual dysfunction. Both Palatin and MBI have strategic
alliances with Mallinckrodt (NYSE: MKG), and Mallinckrodt has an equity stake
in both companies. In addition, MBI has partnering relationships with Chugai
Pharmaceutical, Co. Ltd. of Japan for the commercialization of OPTISON in
Japan, South Korea and Taiwan.
Quilty commented "The merger makes strategic and business sense for both
companies. We expect the merger will allow us to consolidate functions and, as a
result, reduce operating expenses and
MORE - MORE - MORE
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PALATIN TECHNOLOGIES AND MOLECULAR BIOSYSTEMS TO MERGE
Page 2-2-2
leverage our product development and marketing resources. After this merger, we
expect Palatin to have adequate financial resources to meet its objectives of
integrating the two companies and continuing commercialization of its products.
We also intend to investigate additional acquisitions consistent with this
strategy as we move forward."
"We believe combining the Palatin and MBI product pipelines will improve our
chances to bring multiple approved products to market, generate sustainable
growth in revenue and earnings, and increase liquidity for our investors,"
Quilty said. He added. "MBI's OPTISON ultrasound contrast imaging agent is
already on the market for its first indication -- enhancement of endocardial
border delineation and left ventricular opacification -- and sales are growing
nicely. Palatin expects to file a BLA with the FDA for the first indication of
its lead product, LeuTech, this month. With Mallinckrodt as our strategic
partner for both products, we are extremely optimistic about their market
potential."
Venkatadri commented "The synergies between the companies are too strong to be
ignored. The combined company will have an excellent product pipeline led by
Palatin's PT-14 therapeutic for treatment of sexual dysfunction and MBI's MB-840
for diagnosing liver tumors. Importantly, OPTISON is expected to enter phase III
clinical trials early next year designed to expand its approved indications to
include the detection of myocardial perfusion. Additionally, phase III studies
for OPTISON are expected to begin next year in Japan with our Japanese partner,
Chugai."
Bradley J. Fercho, Mallinckrodt's Imaging Group President, commented, "We wish
Palatin and MBI well as they pursue this new venture. Our investments in both
OPTISON and LeuTech are strategic to Mallinckrodt's focus in diagnostic imaging.
We believe Mallinckrodt's marketing and distribution resources and expertise can
help establish these products as the standard of care in their respective
markets. We look forward to working closely with the combined Palatin
Technologies in continuing to develop the markets."
The companies expect to file proxy materials with the Securities and Exchange
Commission within sixty days, and to notice and hold Special Stockholder
Meetings as soon as proxy materials can be cleared and mailed. They anticipate
that the meetings and the consequent combination will be consummated in the
first quarter of calendar 2000. Palatin and MBI were represented in the
transaction by Hambrecht & Quist and Prudential Vector Healthcare Group, a unit
of Prudential Securities, respectively.
MBI is a world leader in developing contrast agents for diagnostic imaging. Its
innovative product, OPTISON, improves diagnosis of heart disease through clearer
ultrasound images. For more information on Molecular Biosystems by fax, dial
888-329-4007, or visit its web site: www.mobi.com
Palatin Technologies, Inc is a development-stage medical technology company
involved in developing and commercializing products and technologies for
diagnostic imaging, cancer therapy and ethical drug development based on its
proprietary monoclonal antibody radiolabeling and enabling peptide platform
technologies. For further information visit the Palatin web site at
MORE-MORE-MORE
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PALATIN TECHNOLOGIES AND MOLECULAR BIOSYSTEMS TO MERGE
Page 3-3-3
www.palatin.com For Palatin investor information, visit the Allen & Caron Inc
web site at www.allencaron.com
Based in St. Louis, MO, Mallinckrodt Inc. is a global manufacturer and marketer
of specialty medical products designed to sustain breathing, diagnose disease
and relieve pain. The company does business in more than 100 countries; operates
Respiratory, Imaging and Pharmaceuticals products groups; and had fiscal 1999
net sales of $2.6 billion. The Mallinckrodt web site address is
www.mallinckrodt.com
STATEMENTS ABOUT THE RESPECTIVE COMPANIES' AND/OR THE COMBINED COMPANIES' FUTURE
EXPECTATIONS, INCLUDING CLOSING OF THE ACQUISITION, PRODUCT DEVELOPMENT, THE
QUALITY OF PRODUCT PORTFOLIOS, SYNERGIES, REGULATORY PLANS, TIMING OF FDA
REVIEWS, FDA CLEARANCES, SALES VOLUMES, MARKET ACCEPTANCE OF PRODUCTS AND ALL
OTHER STATEMENTS IN THIS DOCUMENT OTHER THAN HISTORICAL FACTS, ARE
"FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES
ACT OF 1933, SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934 AND AS THAT TERM
IS DEFINED IN THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995. THE
COMPANIES INTEND THAT SUCH FORWARD-LOOKING STATEMENTS BE SUBJECT TO THE SAFE
HARBORS CREATED THEREBY. SINCE THESE STATEMENTS INVOLVE RISKS AND UNCERTAINTIES
AND ARE SUBJECT TO CHANGE AT ANY TIME, THE COMPANIES' ACTUAL RESULTS COULD
DIFFER MATERIALLY FROM EXPECTED RESULTS.
# # # #
<PAGE>
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), is entered into
as of November 11, 1999, by and among PALATIN TECHNOLOGIES, INC., a Delaware
corporation ("Palatin"), EVERGREEN MERGER CORPORATION, a newly-formed Delaware
corporation and a wholly-owned subsidiary of Palatin ("Merger Subsidiary"), and
MOLECULAR BIOSYSTEMS, INC., a Delaware corporation ("MBI").
BACKGROUND
A. The respective Boards of Directors of Palatin, Merger Subsidiary and
MBI have approved this Agreement, and deem it advisable and in the best
interests of their respective stockholders to consummate the merger of Merger
Subsidiary with and into MBI on the terms and conditions set forth herein (the
"Merger").
B. For United States federal income tax purposes, it is intended that
the Merger shall qualify as a "reorganization" within the meaning of Section 368
of the Internal Revenue Code of 1986, as amended (the "Code"), and the rules and
regulations promulgated thereunder.
C. For accounting purposes, it is intended that the Merger shall be
accounted for as a "purchase" under United States generally accepted accounting
principles ("GAAP").
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements contained herein, the
parties agree as follows:
ARTICLE 1
THE MERGER
1.1 THE MERGER. Upon the terms and subject to the conditions of this
Agreement, on the Effective Date (as defined in Section 1.2), Merger Subsidiary
shall be merged with and into MBI and the separate existence of Merger
Subsidiary shall thereupon cease, and MBI, as the surviving corporation in the
Merger (the "Surviving Corporation"), shall by virtue of the Merger continue its
corporate existence under the laws of the State of Delaware.
1.2 EFFECTIVE DATE OF THE MERGER. The Merger shall become effective at
the date and time when a properly executed Certificate of Merger substantially
in the form attached hereto as EXHIBIT A is duly filed with the Secretary of
State of the State of Delaware (the "Effective Date"). This filing shall be made
as soon as practicable following fulfillment of the conditions set forth in
Article 8, or at such time thereafter as is provided in such Certificate. The
Surviving Corporation may at any time after the Effective Date take any action
(including executing and delivering any document ) in the name and on behalf of
MBI or Merger Subsidiary in order to carry out and effectuate the transactions
contemplated by this Agreement.
<PAGE>
ARTICLE 2
THE SURVIVING CORPORATION
2.1 CERTIFICATES OF INCORPORATION. The Certificate of Incorporation of
the Surviving Corporation shall be amended and restated at and as of the
Effective Date to read as did the Certificate of Incorporation of Merger
Subsidiary immediately prior to the Effective Date.
2.2 BYLAWS OF THE SURVIVING CORPORATION. The Bylaws of the Surviving
Corporation shall be amended and restated at and as of the Effective Date to
read as did the Bylaws of Merger Subsidiary immediately prior to the Effective
Date.
2.3 BOARD OF DIRECTORS OF THE SURVIVING CORPORATION. From the Effective
Date and for three (3) fiscal years beginning after the Effective Date, Palatin
shall cause the Board of Directors of the Surviving Corporation to be composed
of two Palatin Directors (as defined below) and one (1) MBI Director (as defined
below).
2.4 BOARD OF DIRECTORS OF PALATIN. At the Effective Date, the Board of
Directors of Palatin shall consist of the following: (i) four (4) individuals
whom the President and Chief Executive Officer of Palatin or his designee shall
select (which initial selection shall be from the members of the Board of
Directors of Palatin on the date hereof) (the "Palatin Directors") and (ii) two
(2) individuals whom the President and Chief Executive Officer of MBI or his
designee shall select (which initial selection shall be from the members of the
Board of Directors of MBI on the date hereof ) (the "MBI Directors"). Subject to
the fiduciary duties of Palatin's Board of Directors, for three (3) fiscal years
beginning after the Effective Date, further selection of (y) potential MBI
Directors shall be made by the incumbent MBI Directors and (z) potential Palatin
Directors shall be made by the incumbent Palatin Directors. Subject to the
fiduciary duties of its Board of Directors, Palatin shall cause four (4) Palatin
Directors and two (2) MBI Directors (and no other persons except as permitted in
this Section) to be nominated for election to Palatin's Board of Directors for
each of the three (3) fiscal years beginning after the Effective Date. Except
with respect to vacancies occurring as a result of removal by the stockholders
of Palatin, vacancies occurring from the Effective Date and for the three (3)
fiscal years beginning after the Effective Date among either the Palatin
Directors or the MBI Directors, shall be filled by a person selected by the
respective Palatin Directors or MBI Directors.
2.5 AMENDMENT TO CERTIFICATE OF INCORPORATION OF THE SURVIVING
CORPORATION. At the Effective Date, Palatin shall cause the Surviving
Corporation to file a Certificate of Merger with the Delaware Secretary of
State.
2.6 EFFECTS OF MERGER. The Merger shall have the effects set forth in
Section 259 of the Delaware General Corporation Law (the "DGCL"). The corporate
existence of MBI, with all its purposes, powers and objects, shall continue
unaffected and unimpaired by the Merger and, as the Surviving Corporation, it
shall be governed by the laws of the State of Delaware and succeed to all
rights, assets, liabilities and obligations of Merger Subsidiary in accordance
with Section 259(a) of the DGCL.
2
<PAGE>
ARTICLE 3
CONVERSION OF SHARES
3.1 EXCHANGE RATIO. On the Effective Date, by virtue of the Merger and
without any action on the part of any holder of any common stock, par value
$0.01 per share, of MBI ("MBI Common Stock"):
(a) All shares of MBI Common Stock which are held by MBI or
any wholly owned subsidiary of MBI shall be canceled and retired and shall cease
to exist and no capital stock of Palatin or other consideration shall be
delivered in exchange therefor;
(b) Each share of common stock of Merger Subsidiary
outstanding immediately prior to the Effective Date shall be converted into and
become one share of common stock of the Surviving Corporation with the same
rights, powers and privileges as the shares so converted and shall constitute
the only outstanding shares of capital stock of the Surviving Corporation;
(c) Subject to Sections 3.1(d) and 3.4, each remaining
outstanding share of MBI Common Stock shall be converted into the right to
receive 0.5250 (the "Exchange Ratio"), fully paid and nonassessable shares of
the common stock, par value $0.01 per share, of Palatin ("Palatin Common Stock")
(the "Merger Consideration");
(d) In the event of any stock dividend, stock split,
reclassification, recapitalization, combination or exchange of shares with
respect to, or rights issued in respect of, Palatin Common Stock or MBI Common
Stock after the date hereof and prior to the Effective Date, the Exchange Ratio
shall be adjusted accordingly; and
(e) Notwithstanding anything in this Agreement to the
contrary, shares (the "Dissenting Shares") of MBI Common Stock that are
outstanding immediately prior to the Effective Date and that are held by persons
who are entitled to demand and properly demand appraisal of such Dissenting
Shares pursuant to, and who comply in all respects with, Section 262 of the DGCL
("Section 262") shall not be converted into the Merger Consideration as provided
in Section 3.1(c), but rather the holders of Dissenting Shares shall be entitled
to payment of the fair market value of such shares in accordance with Section
262; PROVIDED, HOWEVER, that if any holder of Dissenting Shares shall fail to
perfect or otherwise shall waive, withdraw or lose the right to appraisal under
Section 262, then the right of such holder to be paid the fair value of such
holder's Dissenting Shares shall cease and such Dissenting Shares shall be
treated as if they had been converted as of the Effective Date into the Merger
Consideration as provided in Section 3.1(c). MBI shall serve prompt notice to
Palatin and Merger Subsidiary of any demands received by MBI for appraisal of
any shares of MBI Common Stock, and Palatin shall have the right to participate
in and direct all negotiations and proceedings with respect to such demands. MBI
shall not, except with the prior written consent of Palatin and Merger
Subsidiary, make any payment with respect to, or settle or offer to settle, any
such demands, or agree to do any of the foregoing.
3
<PAGE>
3.2 PALATIN TO MAKE CERTIFICATES AVAILABLE.
(a) Prior to the Closing (as defined in Section 3.10), Palatin
shall appoint American Stock Transfer and Trust Company or such other person or
persons reasonably satisfactory to Palatin and MBI to act as Exchange Agent for
the Merger (the "Exchange Agent"). As soon as practicable after the Effective
Date, Palatin shall make available, and each holder of MBI Common Stock shall be
entitled to receive, upon surrender to the Exchange Agent of one or more
certificates ("Certificates") representing such stock for cancellation and such
other documents reasonably requested by the Exchange Agent, certificates
representing the number of shares of Palatin Common Stock into which such shares
of MBI Common Stock are converted in the Merger and cash in consideration of
fractional shares as provided in Section 3.4. Palatin Common Stock into which
MBI Common Stock shall be converted in the Merger shall be deemed to have been
issued on the Effective Date (the "Share Consideration").
(b) Any holder of shares of MBI Common Stock who has not
exchanged his or her shares for Palatin Common Stock in accordance with Section
3.2(a) within twelve (12) months after the Effective Date shall have no further
claim upon the Exchange Agent and shall thereafter look only to Palatin for
payment in respect of his or her shares of MBI Common Stock. Until so
surrendered, Certificates representing MBI Common Stock shall represent solely
the right to receive the Share Consideration. If any Certificates representing
shares of MBI Common Stock entitled to payment pursuant to Section 3.1 shall not
have been surrendered for such payment prior to such date on which any payment
in respect thereof would otherwise escheat to or become the property of any
governmental agency or other governmental entity, such shares of MBI Common
Stock shall, to the extent permitted by applicable law, be deemed to be canceled
and no money or other property will be due to the holder thereof.
3.3 DIVIDENDS; TRANSFER TAXES. No dividends or other distributions that
are declared or made on Palatin Common Stock will be paid to persons entitled to
receive certificates representing Palatin Common Stock pursuant to this
Agreement until such persons surrender their Certificates representing MBI
Common Stock. Upon such surrender, there shall be paid to the person in whose
name the certificates representing such Palatin Common Stock shall be issued any
dividends or other distributions which shall have become payable with respect to
such Palatin Common Stock in respect of a record date after the Effective Date.
In no event shall the person entitled to receive such dividends be entitled to
receive interest on such dividends. In the event that any certificates for any
shares of Palatin Common Stock are to be issued in a name other than that in
which the Certificates representing shares of MBI Common Stock surrendered in
exchange therefor are registered, it shall be a condition of such exchange that
the Certificate or Certificates so surrendered shall be properly endorsed or be
otherwise in proper form for transfer and that the person requesting such
exchange shall pay to the Exchange Agent any transfer or other taxes required by
reason of the issuance of certificates for such shares of Palatin Common Stock
in a name other than that of the registered holder of the Certificate
surrendered, or shall establish to the satisfaction of the Exchange Agent that
such tax has been paid or is not applicable. Notwithstanding the foregoing,
neither the Exchange Agent nor any party hereto shall be liable to a holder of
shares of MBI Common Stock for any shares of Palatin Common Stock or dividends
thereon delivered to a public official pursuant to any applicable escheat laws.
4
<PAGE>
3.4 NO FRACTIONAL SHARES. No certificates or scrip representing less
than one (1) share of Palatin Common Stock shall be issued upon the surrender
for exchange of Certificates representing MBI Common Stock pursuant to Section
3.1(b). In lieu of any such fractional share, each holder of MBI Common Stock
who would otherwise have been entitled to a fraction of a share of Palatin
Common Stock upon surrender of a Certificate for exchange pursuant to Section
3.1 (b) shall be paid upon such surrender cash (without interest) in an amount
equal to such holder's proportionate interest in the net proceeds from the sale
or sales in the open market by the Exchange Agent, on behalf of all such
holders, of the aggregate fractional Palatin Common Stock issued pursuant to
this Section 3.4. As soon as practicable following the Effective Date, the
Exchange Agent shall determine the excess of (i) the number of full shares of
Palatin Common Stock delivered to the Exchange Agent by Palatin over (ii) the
aggregate number of full shares of Palatin Common Stock to be distributed to
holders of MBI Common Stock (such excess being herein called the "Excess
Shares"), and the Exchange Agent, as agent for the former holders of MBI Common
Stock, shall sell the Excess Shares at the prevailing prices on the Nasdaq
National Market (the "NMS") or such other exchange or automated quotation
system, as the case may be. The sale of the Excess Shares by the Exchange Agent
shall be executed on the NMS through one or more member firms of the NMS or such
other exchange or automated quotation system and shall be executed in round lots
to the extent practicable. The Exchange Agent shall deduct from the proceeds of
the sale of the Excess Shares all commissions, transfer taxes and other
out-of-pocket transaction costs, including, but not limited to, the expenses and
compensation of the Exchange Agent, incurred in connection with such sale of
Excess Shares. Until the net proceeds of such sale have been distributed to the
former stockholders of MBI, the Exchange Agent will hold such proceeds in trust
for such former stockholders (the "Fractional Securities Fund"). As soon as
practicable after the determination of the amount of cash to be paid to former
stockholders of MBI in lieu of any fractional interests, the Exchange Agent
shall make available in accordance with this Agreement such amounts to such
former stockholders. Any amounts remaining unclaimed by holders of shares of MBI
Common Stock three (3) years after the Effective Date (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
applicable law, become the property of Palatin free and clear of any claims or
interest of any person previously entitled thereto.
3.5 STOCK OPTIONS. At or prior to the Effective Date, Palatin and MBI
shall take all action necessary to cause the assumption by Palatin as of the
Effective Date of all outstanding options as of the Effective Date (the
"Outstanding Options") to purchase MBI Common Stock, whether vested or unvested,
issued under MBI's Pre-1984 Stock Option Plan, 1984 Stock Option Plan, 1993
Stock Option Plan, , 1993 Outside Director's Stock Option Plan, 1997 Outside
Directors Stock Option Plan and 1998 Stock Option Plan (the "MBI Stock Option
Plans") or pursuant to separate option agreements, all of which are listed in
Section 3.5 of the MBI Disclosure Schedule (as defined below). Each of the
Outstanding Options shall be converted without any action on the part of the
holder thereof into an option to purchase shares of Palatin Common Stock as of
the Effective Date. The number of shares of Palatin Common Stock that the holder
of an assumed Outstanding Option shall be entitled to receive upon the exercise
of such option shall be a number of whole and fractional shares determined by
multiplying the number of shares of MBI Common Stock subject to such option,
determined immediately before the Effective Date, by the Exchange Ratio. The
exercise price of each share of Palatin Common Stock subject to an assumed
Outstanding Option shall be the amount (rounded up to the nearest
5
<PAGE>
whole cent) obtained by dividing the exercise price per share of MBI Common
Stock at which such option is exercisable immediately before the Effective Date
by the Exchange Ratio. Except as specified in Section 3.5 of the MBI Disclosure
Schedule, the assumption and substitution of options as provided in this Section
shall not give the holders of such options additional benefits or additional
vesting rights which they did not have immediately prior to the Effective Date
or relieve the holders of any obligations or restrictions applicable to their
options or the shares obtainable upon exercise of the options. Only whole shares
of Palatin Common Stock shall be issued upon exercise of any Outstanding Option,
and in lieu of receiving any fractional share of Palatin Common Stock, the
holder of such option shall receive in cash the Prior Day Market Price (as
defined below) of the fractional share, net of the applicable exercise price of
the fractional share and applicable withholding taxes. After the Effective Date,
the MBI Stock Option Plans and any Outstanding Options issued outside the scope
of the MBI Stock Option Plans shall be continued in effect by the Surviving
Corporation subject to amendment, modification, suspension, abandonment or
termination as provided therein, and the Stock Option Plans as so continued (i)
shall relate solely to Outstanding Options, (ii) thereafter shall relate only to
the issuance of Palatin Common Stock as provided in this Section and (iii) shall
continue to provide for equitable adjustment in the terms of Outstanding Options
in the event of certain corporate events which alter the capital structure of
the Surviving Corporation. For purposes of this Agreement, the term "Prior Day
Market Price" with respect to shares of either Palatin Common Stock or MBI
Common Stock, as applicable, shall mean the last reported sale price or, if not
so reported, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the applicable exchange or automated
quotation system on which such stock trades for the day immediately preceding
the day for which the Prior Day Market Price is being determined.
3.6 LOST CERTIFICATES. If any Certificate shall have been lost, stolen
or destroyed, upon the making of any 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 issue in exchange for such lost, stolen or destroyed
Certificate the Share Consideration to be paid in respect of the MBI Common
Stock represented by such Certificates as contemplated by this Article.
3.7 STOCKHOLDERS' MEETINGS.
(a) MBI shall take all action necessary, in accordance with
applicable law and its Certificate of Incorporation and Bylaws, to convene a
special meeting of the stockholders of MBI (the "MBI Meeting") as promptly as
practicable for the purpose of considering and taking action to authorize this
Agreement and the transactions contemplated hereby (the "MBI Share Proposal").
Subject to its fiduciary duties and as advised by outside counsel in connection
with the receipt by MBI of a Business Combination Proposal (as defined in
Section 7.10) that the Board of Directors of MBI reasonably believes will result
in a Superior Proposal (as defined in Section 7.10), the Board of Directors of
MBI will recommend that holders of MBI Common Stock vote in favor of and approve
the Merger and the adoption of this Agreement at the MBI Meeting.
6
<PAGE>
(b) Palatin shall take all action necessary, in accordance
with applicable law and its Certificate of Incorporation and Bylaws, to convene
a meeting of the stockholders of Palatin (the "Palatin Meeting") as promptly as
practicable for the purpose of considering and taking action to authorize, among
other items, this Agreement and the transactions contemplated hereby (the
"Palatin Share Proposal"). Subject to its fiduciary duties and as advised by
outside counsel in connection with the receipt by Palatin of a Business
Combination Proposal (as defined in Section 7.10) that the Board of Directors of
Palatin reasonably believes will result in a Superior Proposal (as defined in
Section 7.10), the Board of Directors of Palatin will recommend that holders of
Palatin Common Stock vote in favor of and approve the Palatin Share Proposal at
the Palatin Meeting.
3.8 CLOSING OF MBI'S TRANSFER BOOKS. At the Effective Date, the stock
transfer books of MBI shall be closed and no transfer of shares of MBI Common
Stock shall be made thereafter. In the event that, after the Effective Date,
Certificates are presented to the Surviving Corporation, they shall be canceled
and exchanged for Palatin Common Stock and/or cash as provided in Sections
3.1(b) and 3.4.
3.9 ASSISTANCE IN CONSUMMATION OF THE MERGER. Palatin and MBI shall
provide all reasonable assistance to, and shall cooperate with, one another to
bring about the consummation of the Merger as soon as possible in accordance
with the terms and conditions of this Agreement.
3.10 CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place (i) at the offices of Palatin, 214
Carnegie Center, Suite 100, Princeton, New Jersey 08540, at 9:00 A.M. local time
on the day which is at least one business day and no more than three business
days after the day on which the last of the conditions set forth in Article 8 is
fulfilled or waived or (ii) at such other time and place as Palatin and MBI
shall agree in writing.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF MBI
MBI represents and warrants to Palatin and the Merger Subsidiary that
the statements contained in this Article 4 are true and correct, except as set
forth in the Disclosure Schedule delivered by MBI to Palatin and the Merger
Subsidiary concurrently herewith and identified as the "MBI Disclosure
Schedule."
4.1 ORGANIZATION AND QUALIFICATION. MBI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority to carry on its business as
it is now being conducted and currently proposed to be conducted, and to own and
use its properties currently owned and used by it. MBI is duly qualified as a
foreign corporation to do business, and is in good standing, in each
jurisdiction where the character of its properties owned or held under lease or
the nature of its activities make such qualification necessary, except where the
failure to be so qualified will not, individually or in the aggregate, have an
MBI Material Adverse Effect (as defined below). Complete and correct copies as
of the date hereof of the Certificate of Incorporation, Bylaws and Certificates
of Qualification to do Business (for each applicable jurisdiction) of MBI and
each of its subsidiaries
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have been delivered to Palatin as part of the MBI Disclosure Schedule. For
purposes of this Agreement, an "MBI Material Adverse Effect" shall mean a
material adverse effect on the business (as now conducted or as proposed to be
conducted until the Effective Date), properties, assets, condition (financial or
otherwise), liabilities, operations or results of operations of MBI and its
subsidiaries taken as a whole.
4.2 CAPITALIZATION. The authorized capital stock of MBI consists of
40,000,000 shares of MBI Common Stock. As of September 30, 1999, 18,727,017
shares of MBI Common Stock were validly issued and outstanding, fully paid, and
nonassessable, and there has been no material change in this number through the
date hereof. As of the date hereof, there are no bonds, debentures, notes or
other evidences of indebtedness having the right to vote on any matters on which
MBI's stockholders may vote ("MBI Voting Debt") issued or outstanding. As of
September 30, 1999, options to acquire 3,979,716 shares of MBI Common Stock were
outstanding, and there has been no material change in this number through the
date hereof. Except for these options, and except as set forth in Section 4.2 of
the MBI Disclosure Schedule, there are no options, warrants, calls or other
rights, agreements or commitments outstanding obligating MBI to issue, deliver
or sell shares of its capital stock or debt securities, or obligating MBI to
grant, extend or enter into any such option, warrant, call or other such right,
agreement or commitment. Assuming the conversion of all securities of MBI that
are convertible on the date hereof into MBI Common Stock and the exercise of all
options and warrants to acquire MBI Common Stock, MBI would have 18,749,292
shares of MBI Common Stock issued and outstanding.
4.3 SUBSIDIARIES. Except as set forth in Section 4.3 of the MBI
Disclosure Schedule, MBI has no Significant Subsidiaries (as such term is
defined in Rule 1-02 of Regulation S-X of the Securities and Exchange Commission
(the "Commission")) ("Significant Subsidiaries"). MBI does not directly or
indirectly own any interest in any other corporation, partnership, joint venture
or other business association or entity.
4.4 AUTHORITY RELATIVE TO THIS AGREEMENT. MBI has the corporate power
to enter into this Agreement and, subject to approval of the MBI Share Proposal
by the holders of MBI Common Stock to consummate the Merger, to perform its
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by MBI's Board of Directors. This Agreement constitutes a valid and legally
binding obligation of MBI enforceable in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding therefor may be
brought. Except for the approval of the holders of MBI Common Stock described in
Section 3.7(a), no other corporate proceedings on the part of MBI are necessary
to authorize this Agreement and the transactions contemplated hereby. Except as
disclosed in the MBI SEC Reports (as defined below) or in Section 4.4 of the MBI
Disclosure Schedule, MBI is not subject to or obligated under (i) any charter,
bylaw, indenture or other loan document provision or (ii) any other contract,
license, franchise, permit, order, decree, concession, lease, instrument,
judgment, statute, law, ordinance, rule or regulation applicable to MBI or any
of its subsidiaries or their respective properties or assets, which would be
breached or violated, or under which there would be a default (with or without
notice or lapse of time, or
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both), or under which there would arise a right of termination, cancellation or
acceleration of any obligation or the loss of a material benefit, by its
executing and carrying out this Agreement other than, in the case of clause (ii)
only, (A) any breaches, violations, defaults, terminations, cancellations,
accelerations or losses which, either singly or in the aggregate, will not have
an MBI Material Adverse Effect or prevent the consummation of the transactions
contemplated hereby and (B) the laws and regulations referred to in the next
sentence. Except in connection, or in compliance, with the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the corporation,
securities or blue sky laws or regulations of the various states, no filing or
registration with, or authorization, consent or approval of, any public body or
authority is necessary for the consummation by MBI of the Merger or the other
transactions contemplated by this Agreement, other than filings, registrations,
authorizations, consents or approvals the failure of which to make or obtain
would not have an MBI Material Adverse Effect or prevent the consummation of the
transactions contemplated hereby.
4.5 REPORTS AND FINANCIAL STATEMENTS. MBI has previously furnished
Palatin with true and complete copies of all documents required to be filed with
the Commission for the period beginning on April 1, 1996 and ending on the date
hereof (together with all exhibits thereto, the "MBI SEC Reports"). MBI has
filed with the Commission all documents it is required by the Commission to file
as of the date hereof. As of their respective dates, the MBI SEC Reports
complied in all material respects with the requirements of the Securities Act or
the Exchange Act, as the case may be, and the rules and regulations of the
Commission thereunder applicable to such MBI SEC Reports. Without limiting the
generality of the foregoing sentence, the MBI SEC Reports include as exhibits
all documents required to be filed as exhibits to the MBI SEC Reports pursuant
to the rules and regulations of the Commission. As of their respective dates,
the MBI SEC Reports did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The audited consolidated financial statements and
unaudited interim financial statements of MBI included in the MBI SEC Reports
comply as to form in all material respects with applicable accounting
requirements of the Securities Act and with the published rules and regulations
of the Commission with respect thereto. The financial statements included in the
MBI SEC Reports (i) have been prepared in accordance with GAAP applied on a
consistent basis (except as may be indicated therein or in the notes thereto),
(ii) present fairly, in all material respects, the financial position of MBI and
its subsidiaries as at the dates thereof and the results of their operations and
cash flows for the periods then ended subject, in the case of the unaudited
interim financial statements, to normal year-end audit adjustments, any other
adjustments described therein and the fact that certain information and notes
have been condensed or omitted in accordance with the Exchange Act and the rules
promulgated thereunder, and (iii) are in all material respects, in accordance
with the books of account and records of MBI and its subsidiaries.
4.6 ABSENCE OF CERTAIN CHANGES. Except as disclosed in the MBI SEC
Reports or set forth in Section 4.6 of the MBI Disclosure Schedule, since March
31, 1999, MBI and its subsidiaries have conducted their business in the ordinary
course in good faith and consistent with past practice or as permitted by this
Agreement and there has not been:
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(a) any event, occurrence or development or a state of
circumstances or facts which has had or reasonably would be expected to have,
individually or in the aggregate, an MBI Material Adverse Effect;
(b) any declaration, setting aside or payment of any dividend
or other distribution with respect to any shares of capital stock of MBI;
(c) any amendment of any term of any outstanding security of
MBI or any of its subsidiaries;
(d) any transaction or commitment made, or any contract,
agreement or settlement entered into, by (or judgment, order or decree
affecting) MBI or any of its subsidiaries relating to its assets or business
(including the acquisition or disposition of any assets) or any relinquishment
by MBI or any of its subsidiaries of any contract or other right, in either
case, material to MBI and its subsidiaries taken as a whole;
(e) any change in any method of accounting or accounting
practice (other than any change for tax purposes) by MBI or any of its
subsidiaries, except for any such change which is not significant or which is
required by reason of a concurrent change in GAAP; or
(f) any (i) grant of any severance or termination pay to (or
amendment to any such existing arrangement with) any director, officer or
employee of MBI or any of its subsidiaries, (ii) entering into of any
employment, deferred compensation or other similar agreement (or any amendment
to any such existing agreement) with any director, officer or employee of MBI or
any of its subsidiaries, (iii) increase in benefits payable under any existing
severance or termination pay policies or employment agreements, or (iv) increase
in (or amendments to the terms of) compensation, bonus or other benefits payable
to directors, officers or employees of MBI or any of its subsidiaries.
4.7 LITIGATION. Except as disclosed in the MBI SEC Reports or as
disclosed in Section 4.7 of the MBI Disclosure Schedule, there is no suit,
action or proceeding pending or, to the knowledge of MBI, threatened against MBI
or any of its subsidiaries which, either individually or in the aggregate, could
reasonably be expected to have an MBI Material Adverse Effect, nor is there any
judgment, decree, injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or arbitrator outstanding
against MBI or any of its subsidiaries having, or which in the future could
reasonably be expected to have, either individually or in the aggregate, an MBI
Material Adverse Effect.
4.8 INFORMATION IN DISCLOSURE DOCUMENTS, REGISTRATION STATEMENTS, ETC.
None of the information supplied by MBI to be included or incorporated by
reference in (i) the Registration Statement to be filed with the Commission by
Palatin on Form S-4 under the Securities Act for the purpose of registering the
shares of Palatin Common Stock to be issued in the Merger (the "Registration
Statement") and (ii) the joint prospectus/proxy statement of Palatin and MBI
(the "Proxy Statement") required to be mailed to the stockholders of Palatin and
MBI in connection with the Merger will, in the case of the Proxy Statement or
any amendments or supplements thereto, at the time of the mailing of the Proxy
Statement and any amendments or
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supplements thereto, and at the time of the MBI Meeting to be held in connection
with the Merger, or, in the case of the Registration Statement, at the time it
becomes effective and at the Effective Date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading; PROVIDED, HOWEVER, that
this provision shall not apply to statements or omissions in the Registration
Statement or Proxy Statement based upon information furnished by or on behalf of
Palatin for use therein. No representation or warranty made by MBI in this
Agreement and no statement contained in any schedule, certificate, list, exhibit
or other instrument specified in this Agreement, including without limitation
the MBI Disclosure Schedule, contains any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
4.9 EMPLOYEE BENEFIT PLANS. Except as disclosed in the MBI SEC Reports
or as disclosed in Section 4.9 of the MBI Disclosure Schedule, there are no
material employee benefit or compensation plans, agreements or arrangements,
including "employee benefit plans," as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and including, but
not limited to, plans, agreements or arrangements relating to former employees,
including retiree medical plans, maintained by MBI or any of its subsidiaries or
any entity which is under "common control" with MBI within the meaning of
Section 4001 of ERISA ("Controlled Entity") or material collective bargaining
agreements to which MBI or any of its subsidiaries is a party (together, the
"Benefit Plans"). To MBI's best knowledge, no default exists with respect to the
obligations of MBI or any of its subsidiaries under any such Benefit Plan, which
default, either alone or in the aggregate, would have an MBI Material Adverse
Effect. Since January 1, 1999, there have been no disputes or grievances subject
to any grievance procedure, unfair labor practice proceedings, arbitration or
litigation under such MBI Benefit Plans, which have not been finally resolved,
settled or otherwise disposed of, nor is there any default, or any condition
which, with notice or lapse of time or both, would constitute such a default,
under any such MBI Benefit Plans, by MBI or its subsidiaries or, to MBI's best
knowledge, any other party thereto, which failure to resolve, settle or
otherwise dispose of or default, either alone or in the aggregate, would have an
MBI Material Adverse Effect. Since January 1, 1999, there have been no strikes,
lockouts or work stoppages or slowdowns, or to the best knowledge of MBI,
jurisdictional disputes or organizing activity occurring or threatened with
respect to the business or operations of MBI or its subsidiaries which have had
or would have an MBI Material Adverse Effect. MBI has made available to Palatin
true, complete and correct copies of (i) the most recent annual report on Form
5500 filed with the Internal Revenue Service with respect to each Benefit Plan,
(ii) the most recent summary plan description for each Benefit Plan for which
such summary plan description is required and (iii) each plan document, trust
agreement and group annuity or insurance contract related to any Benefit Plan.
4.10 ERISA. All MBI Benefit Plans have been administered in accordance
with, and are in compliance with, its terms and the applicable provisions of
ERISA and any other applicable law, except where such failures to administer or
comply would not have an MBI Material Adverse Effect. Each of the Benefit Plans
which is intended to meet the requirements of Section 401(a) of the Code has
been determined by the Internal Revenue Service to be "qualified," within the
meaning of such section of the Code, and MBI knows of no fact which is likely to
have an adverse effect on the qualified status of such plans. None of the
Benefit Plans is
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a defined benefit pension plan. To MBI's knowledge, there are not now nor have
there been any nonexempt "prohibited transactions," as such term is defined in
Section 4975 of the Code or Section 406 of ERISA, involving MBI's Benefit Plans
which could subject MBI or any of its subsidiaries to the penalty or tax imposed
under Section 502(i) of ERISA or Section 4975 of the Code. Neither MBI nor any
of its subsidiaries has incurred any liability for any tax, excise tax, penalty
or fee with respect to any Benefit Plan, including, but not limited to, taxes
arising under Sections 4971 through 4980B of the Code, and no event has occurred
and no circumstance has existed that could give rise to any such liability. No
Benefit Plan which is subject to Title IV of ERISA has been completely or
partially terminated; no proceedings to completely or partially terminate any
Benefit Plan have been instituted within the meaning of Subtitle C of said Title
IV of ERISA; no accumulated funding deficiency within the meaning of Section 412
of the Code or Section 302 of ERISA, whether or not waived, has occurred with
respect to any Benefit Plan; and no reportable event within the meaning of
Section 4043(b) of Subtitle C of ERISA has occurred with respect to any Benefit
Plan. Neither the MBI nor any of its subsidiaries nor any Controlled Entity has
made a complete or partial withdrawal, within the meaning of Section 4201 of
ERISA, from any multiemployer plan which has resulted in, or is reasonably
expected to result in, any withdrawal liability to MBI or any of its
subsidiaries except for any such liability which would not have an MBI Material
Adverse Effect. Neither MBI nor any of its subsidiaries nor any Controlled
Entity has engaged in any transaction described in Section 4069 of ERISA or
ceased operations at any facility or withdrawn from any Benefit Plan in a manner
which could subject it to liability under Section 4062, 5063 or 4064 of ERISA
except for any such transaction which would not have an MBI Material Adverse
Effect. No Benefit Plan maintained by MBI or any of its subsidiaries or any
related trust or other funding medium thereunder or any fiduciary thereof is, to
the knowledge of MBI, the direct or indirect subject of a material audit,
investigation or examination by a governmental or quasi-governmental agency.
Except as set forth in Section 4.10 of the MBI Disclosure Schedule, the
execution of, and performance of the transactions contemplated by, this
Agreement will not (either along or upon the occurrence of any additional or
subsequent events) constitute an event under any Benefit Plan or agreement that
will or may reasonably be expected to result in any payment (whether severance
pay or otherwise), accelerated vesting or increase in benefits with respect to
any employee, former employee or director of MBI, or its subsidiaries, whether
or not any such payment would be an "excess parachute payment" within the
meaning of Section 280G of the Code.
4.11 TAKEOVER PROVISIONS INAPPLICABLE. The Board of Directors of MBI
have taken the necessary action to make inapplicable to the Merger, and any
other transactions contemplated hereby, the restrictions set forth in Section
203 of the DGCL, and any other applicable antitakeover or similar statute or
regulations.
4.12 MBI ACTION. The Board of Directors of MBI (at a meeting duly
called and held) has by the requisite vote of all directors present (i)
determined that the MBI Share Proposal is advisable and in the best interests of
MBI and its stockholders, (ii) approved the Merger in accordance with the
provisions of Section 251 of the DGCL, (iii) recommended the approval of the MBI
Share Proposal by the holders of MBI Common Stock and directed that the MBI
Share Proposal be submitted for consideration by MBI's stockholders at the MBI
Meeting, (iv) taken any necessary steps to render the restrictions set forth in
Section 203 of the DGCL inapplicable to the Merger and the transactions
contemplated by this Agreement, and (v) adopted a resolution having the effect
of causing MBI not to be subject, to the extent permitted by applicable law, to
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any state takeover law that may purport to be applicable to the Merger and the
transactions contemplated by this Agreement. MBI does not own, beneficially or
otherwise, and, to the knowledge of MBI, no stockholder of MBI owns,
beneficially or otherwise, any outstanding Palatin Common Stock as of the date
hereof.
4.13 FAIRNESS OPINION. MBI has received the written opinion of
Prudential Securities Incorporated ("Prudential Securities"), financial advisors
to MBI, dated the date hereof and a copy of which has been delivered to Palatin,
to the effect that the Exchange Ratio is fair to the stockholders of MBI from a
financial point of view and, as of the date hereof, such opinion has not been
withdrawn.
4.14 FINANCIAL ADVISOR. MBI represents and warrants that (i) except for
Prudential Vector Healthcare Group, a unit of Prudential Securities ("Prudential
Vector"), no broker, finder or investment banker or other intermediary is
entitled to any brokerage, finder's or other fee or commission in connection
with the Merger or the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of MBI, and (ii) the fees and commissions
payable to Prudential Vector as contemplated by this Section 4.14 will not
exceed the aggregate amount set forth in that certain letter, dated August 19,
1999 from Prudential Vector to MBI.
4.15 COMPLIANCE WITH APPLICABLE LAWS. MBI and its subsidiaries hold all
permits, licenses, variances, exemptions, orders and approvals of all courts,
administrative agencies or commissions or other governmental authorities or
instrumentalities, domestic or foreign (each, a "Governmental Entity") to carry
on their respective businesses as currently conducted, including, without
limitation, applicable state insurance and health commissions, except for such
permits, licenses, variances, exemptions, orders and approvals the failure of
which to hold would not have an MBI Material Adverse Effect (the "MBI Permits").
MBI and its subsidiaries are in compliance with the terms of the MBI Permits,
except for such failure to comply, which individually or in the aggregate, would
not have an MBI Material Adverse Effect. Except as disclosed in the MBI SEC
Reports filed prior to the date of this Agreement, the businesses of MBI and its
subsidiaries are not being conducted in violation of any law, ordinance or
regulation of any Governmental Entity, except for possible violations which
individually or in the aggregate do not and would not have a MBI Material
Adverse Effect. Except as disclosed in Section 4.15 of the MBI Disclosure
Schedule, no investigation or review by any Governmental Entity with respect to
MBI or any of its subsidiaries is pending, or, to MBI's knowledge, threatened,
nor has any Governmental Entity indicated an intention to conduct the same,
other than those the outcome of which would not have an MBI Material Adverse
Effect.
4.16 LIABILITIES. Except as set forth in Section 4.16 of the MBI
Disclosure Schedule, as of June 30, 1999, neither MBI nor any of its
subsidiaries has any liabilities or obligations (absolute, accrued, contingent
or otherwise) which are material, individually or in the aggregate, to MBI and
its subsidiaries and which are not disclosed or provided for in the most recent
MBI SEC Reports. To the knowledge of MBI, there is no basis for any claim or
liability of any nature against MBI or its subsidiaries, whether absolute,
accrued, contingent or otherwise, which is or would have an MBI Material Adverse
Effect and which was not reflected in the MBI SEC Reports or disclosed in
Section 4.16 of the MBI Disclosure Schedule.
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4.17 TAXES. Each of MBI and its subsidiaries has timely filed
(including extensions of time as allowed by law) all Tax Returns required to be
filed by any of them and has paid (or MBI has paid on its behalf), or has set up
an adequate reserve for the payment of, all Taxes required to be paid in respect
of the periods covered by such returns (except where the failure to pay would
not have an MBI Material Adverse Effect). The information contained in such Tax
Returns is true, complete and accurate in all material respects except where the
failure to be so would not have an MBI Material Adverse Effect. Neither MBI nor
any subsidiary of MBI is delinquent in the payment of any Tax, assessment or
governmental charge except where the delinquency would not have an MBI Material
Adverse Effect. The charges, accruals and reserves for Taxes with respect to MBI
and its subsidiaries reflected on the unaudited balance sheet of MBI dated June
30, 1999 are adequate under GAAP to cover the Tax liabilities accruing through
the date thereof. There is no action, suit, proceeding, audit or claim now
proposed or pending against or with respect to MBI or any of its subsidiaries in
respect of any Tax where there is a reasonable possibility of an adverse
determination. No deficiencies for any Taxes have been proposed, asserted or
assessed against MBI or any of its subsidiaries that have not been finally
settled or paid in full which would have an MBI Material Adverse Effect, and no
requests for waivers of the time to assess any such Tax are pending. For
purposes of this Agreement, "Taxes" shall mean any and all taxes, charges, fees,
levies or other assessments, including, without limitation, all net income,
gross income, gross receipts, excise, stamp, real or personal property, ad
valorem, withholding, social security (or similar), unemployment, occupation,
use, service, service use, license, net worth, payroll, franchise, severance,
transfer, recording, employment, premium, windfall profits, environmental
(including taxes under Section 59A of the Code), customs duties, capital stock,
profits, disability, sales, registration, value added, alternative or add-on
minimum, estimated or other taxes, assessments or charges imposed by any
federal, state, local or foreign governmental entity and any interest,
penalties, or additions to tax attributable thereto. For purposes of this
Agreement, "Tax Returns" shall mean any return, report, form or similar
statement required to be filed with respect to any Tax (including any attached
schedules), including, without limitation, any information return, claim for
refund, amended return or declaration of estimated Tax. For purposes of this
Agreement, the term "subsidiary" of a specified person means an entity more than
50% of whose outstanding voting securities are directly or indirectly owned by
such person.
4.18 CERTAIN AGREEMENTS. Neither MBI nor any of its subsidiaries is in
default (or would be in default with or without notice or lapse of time, or
both) under any agreement or instrument filed as an exhibit to or incorporated
by reference in any of the MBI SEC Reports, whether or not such default has been
waived, which default, either individually or in the aggregate with other such
defaults, would have an MBI Material Adverse Effect.
4.19 INTELLECTUAL PROPERTY. (a) Section 4.19 of the MBI Disclosure
Schedule lists all Patents, Patent applications, registered and applied for
Trademarks and material unregistered Trademarks, service marks and trade names
owned by (or registered in the name of) MBI or any of its subsidiaries that are
considered by MBI to be material to its business as currently conducted. Section
4.19 of the MBI Disclosure Schedule includes as to each Patent or Trademark or
Patent and Trademark applications listed thereon: a Patent number or Patent
application number, a Trademark registration number or Trademark application
number, as applicable for each listed Trademark and non-U.S. Patent, and a
docket or Patent number or Patent application number for each listed U.S.
Patent; the country or countries in which each
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Patent or Trademark is issued, registered or applied for, as applicable; the
application date or registration date for each listed Trademark and the docket
number or issue date for each listed Patent, as applicable; and the owner of
such Patent or Trademark. Except as disclosed therein, all Patents and
Trademarks listed on Section 4.19 of the MBI Disclosure Schedule exist and have
been maintained in good standing, including without limitation, the timely
payment of any maintenance fees and annuities thereon. Except as disclosed in
Section 4.19 of the MBI Disclosure Schedule or as would not have an MBI Material
Adverse Effect, MBI has taken all actions which it considers commercially
reasonable and made all applications and filings which it considers commercially
reasonable pursuant to applicable laws to secure, perfect and protect its rights
in the Intellectual Property, for the conduct of its business as presently
conducted; and, to MBI's knowledge, neither MBI, its subsidiaries nor any of
their respective agents have practiced inequitable conduct under the Patent laws
or other applicable laws with respect to any of the foregoing. Except as would
not have an MBI Material Adverse Effect, MBI and each of its subsidiaries has
taken all steps which it considers commercially reasonable (including without
limitation entering into appropriate confidentiality, non-disclosure and
non-competition agreements with all officers, directors and employees of MBI and
its subsidiaries with access to or knowledge of the Intellectual Property of MBI
or its subsidiaries (and the products and technology of MBI and its
subsidiaries)) to safeguard and maintain the secrecy and confidentiality of, and
to assign to MBI or its subsidiaries, as applicable, all of such employee's
rights in all such Intellectual Property invented or developed by such employee
within the scope of such employee's employment and relating to MBI's business.
All key full-time employees of MBI and substantially all other full-time
employees of MBI and its subsidiaries have signed a confidentiality and
invention assignment agreement for the benefit of MBI or one of its subsidiaries
to assign such employee's rights in Intellectual Property to MBI or one of its
subsidiaries.
(b) Except as set forth in the MBI SEC Reports or in Section
4.19 of the MBI Disclosure Schedule or as would not have an MBI Material Adverse
Effect, MBI and its subsidiaries own, are duly licensed or otherwise have the
right to use all of the Intellectual Property used or believed by MBI to be
required for use in connection with the business of MBI and its subsidiaries as
presently conducted and, to MBI's knowledge, as proposed to be conducted through
the Effective Date; and, MBI has no reason to believe that such Intellectual
Property is not valid and enforceable against third parties. Except as set forth
in the MBI SEC Reports or in Section 4.19 of the MBI Disclosure Schedule or as
would not have an MBI Material Adverse Effect, to MBI's knowledge, MBI and its
subsidiaries own, on an exclusive basis, free and clear of any Liens, and have
the unrestricted right to use, license, sell or dispose of, and the right to
bring infringement actions with respect to all the Intellectual Property owned
by MBI and its subsidiaries. Except as set forth in the MBI SEC Reports or in
Section 4.19 of the MBI Disclosure Schedule or as would not have an MBI Material
Adverse Effect, to MBI's knowledge, MBI and its subsidiaries do not pay, and
have no obligation (whether absolute or contingent) to pay, royalties,
honoraria, fees or other payments to any person by reason of the ownership, use,
license, sale or disposition of any Intellectual Property by MBI or its
subsidiaries. Except as set forth in the MBI SEC Reports or in Section 4.19 of
the MBI Disclosure Schedule, to MBI's knowledge, neither MBI nor any of its
subsidiaries has received notice (written or oral) of any claim of any person
asserting rights in, or a conflict with, the Intellectual Property used or
required for use in connection with the business of MBI and its subsidiaries as
presently conducted and as proposed to be conducted (including without
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limitation the Patents and Trademarks listed in Section 4.19 of the MBI
Disclosure Schedule) and MBI has not been informed of any reasonable basis for
such a claim. Except for Intellectual Property not related to MBI's business as
currently conducted or as proposed to be conducted through the Effective Date,
and without limiting the foregoing, to MBI's knowledge, no other person has
claimed the right to use in connection with substantially similar or closely
related goods and in the same geographic area any Trademark which is identical
or confusingly similar to any Trademark used by MBI or its subsidiaries, except
pursuant to written agreements with MBI or its subsidiaries which are listed in
the MBI SEC Reports or Section 4.19 of the MBI Disclosure Schedule. Except for
Intellectual Property not related to MBI's business as currently conducted, to
MBI's knowledge, neither MBI nor any of its subsidiaries has provided notice
(written or oral) to any person of infringement of any Intellectual Property
right held by MBI or its subsidiaries; and MBI has not been informed of any
reasonable basis for such a claim. There is no agreement, arrangement or
understanding (written or oral) between MBI or any of its subsidiaries and
another person which would prevent or restrict MBI and its subsidiaries after
the Merger from using, selling, licensing or disposing of any material
Intellectual Property of MBI and its subsidiaries on substantially the same
terms and conditions applicable to MBI and its subsidiaries immediately prior to
the Merger.
(c) Except as would not have an MBI Material Adverse Effect,
MBI represents that the entry by MBI into this Agreement will not require the
consent of any third party (other than consents that have been obtained by MBI
and provided to Palatin) who is a party to an agreement, arrangement or
understanding described in Section 4.19(b) of the MBI Disclosure Schedule and
that entry by MBI into this Agreement will not otherwise adversely affect the
validity of any such agreement, arrangement or understanding, nor adversely
affect the benefit that inures to MBI from such agreement, arrangement or
understanding. Except as disclosed in the MBI SEC Reports or as would not have
an MBI Material Adverse Effect, Section 4.19 of the MBI Disclosure Schedule
lists all material agreements, arrangements or understandings (whether written
or oral, and if oral, Section 4.19 of the MBI Disclosure Schedule contains a
brief description of the principal terms thereof) pursuant to which MBI or its
subsidiaries has either purchased, sold, licensed, secured or disposed of rights
in Intellectual Property (except for Intellectual Property not related to MBI's
business as currently conducted or proposed to be conducted through the
Effective Date) from or to another person or agreed to do any of the foregoing
(other than licenses to commercially available off-the-shelf computer software
acquired or entered into by MBI or its subsidiaries in the ordinary course of
business) ("Intellectual Property Agreements"). Except as disclosed in the MBI
SEC Reports or as would not have an MBI Material Adverse Effect, to MBI's
belief, each of the parties thereto have performed, in all material respects,
all obligations under each Intellectual Property Agreement which are required to
be performed by such party, and there is no default (or event which with notice
or lapse of time would constitute a default) thereunder. To MBI's belief, each
Intellectual Property Agreement is enforceable against each of the parties
thereto pursuant to its terms.
(d) Except as disclosed in the MBI SEC Reports, to MBI's
belief, the operation of the business of MBI and its subsidiaries as presently
conducted and, as proposed to be conducted through the Effective Date (including
without limitation the manufacture, sale, use, trade dress, packaging, license,
or other exploitation of products and technology currently marketed or in
development) does not and will not infringe, trespass or otherwise violate the
valid Intellectual Property rights of any person, the result of which would be
an MBI Material
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Adverse Effect. Without limiting the foregoing, to MBI's knowledge and except as
disclosed in the MBI SEC Reports, neither MBI nor any of its subsidiaries has
received any notice (written or oral) of any material infringement of any
Intellectual Property right held by another person; and, to MBI's knowledge,
there is no reasonable basis for such a claim. Except as set forth in the
Intellectual Property Agreements, neither MBI nor any of its subsidiaries is
obligated to indemnify any person for any material liability, cost or expense
arising from such person's use, sale, licensing or disposition of any
Intellectual Property or such person's manufacture, use, sale, license or other
exploitation of any product or technology.
(e) As used herein, the following capitalized terms shall have
the meanings ascribed to them as set forth below: "Intellectual Property" shall
mean any and all intellectual or proprietary property, including without
limitation Patents, Trademarks, Copyrights, Trade Secrets and Know-How.
"Patents" shall mean patents, including U.S. and foreign patents, pending patent
applications and counterparts (whether original, reissue, reexamine, division,
continuation, continuation-in-part, or extension thereof), patent disclosures
and invention disclosures. "Trademarks" shall mean trademarks, trade names,
trade dress, domain names, service marks, or copyrights (in each case, whether
registered or not) as well as any application therefor or registration thereof
and all goodwill associated therewith. "Know-How" shall mean any research and
development records and results, stability data, clinical data, cell lines, DNA
sequences, raw data and lab journals, technology, processes and methods,
technical information, trade secrets, manufacturing and other know-how
(including without limitation proprietary know-how and use and application
know-how), formulas, formulations, production records and specifications, raw
material specifications, manufacturing processes, procedures and records, test
procedures, quality control records and data, product specifications,
algorithms, adverse drug experience information and complaints, marketing and
competition analysis, customer and supplier lists or proprietary information.
4.20 ACCOUNTING MATTERS. Neither MBI nor, to its knowledge, any of its
affiliates, has through the date hereof, taken or agreed to take any action that
would prevent MBI or Palatin from accounting for the business combination to be
effected by the Merger as (i) a purchase, or (ii) as a "reorganization" within
Section 368 of the Code.
4.21 NO MBI MATERIAL ADVERSE EFFECT. Except as disclosed in the MBI SEC
Reports or in the MBI Disclosure Schedule, there does not exist any fact or
circumstance which, either individually or together with another fact or
circumstance, could reasonably be expected to result in an MBI Material Adverse
Effect.
4.22 INVESTMENT COMPANY ACT. MBI is not an "investment company" within
the meaning of the Investment Company Act of 1940.
4.23 FDA. Except as disclosed in the MBI SEC Reports or in Section 4.23
of the MBI Disclosure Schedule:
(a) To MBI's knowledge, as to each drug of MBI or any of its
subsidiaries for which a new drug application ("NDA") or abbreviated new drug
application ("ANDA") has been approved by the U.S. Food and Drug Administration
("FDA"), which drugs are described in the MBI SEC Reports or the MBI Disclosure
Schedule, and such NDAs and
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ANDAs are exclusively owned by MBI or one of its subsidiaries, and the applicant
and all persons performing operations covered by the application are not in
violation of, in any material respect, and are in material compliance with, 21
U.S.C. (S)(S) 355, 21 C.F.R. Parts 314 et seq., respectively, and all terms and
conditions of the application.
(b) To MBI's knowledge, all manufacturing operations conducted
by or for the benefit of MBI and its subsidiaries are not in violation of, in
any material respect, and have been and are being conducted in material
compliance with, the good manufacturing practice regulations "GMP" set forth in
21 C.F.R. Parts 210 and 211.
(c) To MBI's knowledge, neither MBI and its subsidiaries nor
their respective officers, employees, or agents have made an untrue statement of
material fact or fraudulent statement to the FDA, failed to disclose a material
fact required to be disclosed to the FDA, or committed an act, made a statement,
or failed to make a statement that could reasonably be expected to provide a
basis for the FDA to invoke its policy respecting "Fraud, Untrue Statements of
Material Facts, Bribery, and Illegal Gratuities," set forth in 56 Fed. Reg 46191
(September 10, 1991) and any amendments thereto.
(d) No reports of inspection observations, establishment
inspection reports or warning letters have been received from or issued by the
FDA in connection with any approved product within the last three years that
allege material lack of compliance with the FDA regulatory requirements by MBI,
its subsidiaries or, to MBI's knowledge, persons covered by product applications
or otherwise performing services for the benefit of MBI or its subsidiaries.
(e) Neither MBI nor its subsidiaries have received any written
notice or has knowledge that the FDA has commenced or threatened to initiate,
any action to withdraw its approval or request the recall of any product of MBI
or its subsidiaries or commenced or threatened to initiate, any action to enjoin
production of any facility owned or used by MBI or its subsidiaries or any
facility at which any of MBI's or its subsidiaries' products are manufactured,
processed, packaged, labeled, stored, distributed, tested or otherwise handled
(the "Manufacturing Locations").
(f) To MBI's knowledge, as to each article of drug or consumer
product currently manufactured and/or distributed by MBI or its subsidiaries,
which products are described in Section 4.23 of the MBI Disclosure Schedule,
such article is not adulterated or misbranded within the meaning of the FDCA, 21
U.S.C. (S)(S) 342 and 343, respectively.
(g) Neither MBI, its subsidiaries, nor, to the knowledge of
MBI, their respective officers, employees, agents or affiliates, has been
convicted of any crime or engaged in any conduct for which debarment is mandated
by 21 U.S.C. (S) 335a(a) or authorized by 21 U.S.C. (S) 335a(b).
(h) As to each NDA or ANDA submitted to, but not approved by,
the FDA, and not withdrawn by MBI or its subsidiaries, or applicants acting on
its behalf as of the date of this Agreement, MBI and its subsidiaries have
complied, in all material respects, and are in material compliance with, the
requirements of 21 U.S.C. (S) 355 and 21 C.F.R. Parts 312 and
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314 et. seq. and has provided all additional information and taken all
additional action reasonably requested by the FDA in connection with the
application.
(i) In MBI's Good Faith Opinion, there are no facts or
circumstances that would reasonably be expected to delay, in any material
respect, outside the ordinary course of business, or prevent approval of any
pending NDAs or ANDAs, or any amendments and/or supplements thereto.
(j) To MBI's knowledge, there are no lawsuits, actions,
arbitrations or legal or administrative or regulatory proceedings, charges,
complaints, or investigations by the FDA or any other Governmental Entity
pending against MBI or any of its subsidiaries. To MBI's knowledge, there are no
proceedings pending with respect to violation by MBI or any subsidiary of the
Food, Drug and Cosmetic Act, FDA regulations adopted thereunder, or any other
legislation or regulation promulgated by any other Governmental Entity which
might result in the revocation, cancellation, suspension, limitation or adverse
modification of any permit, application or approval.
(k) Neither MBI nor any of its subsidiaries have been served
with any complaint or received any other notices of lawsuits, arbitrations,
legal or administrative or regulatory proceedings, charges, complaints or
investigations by any federal, state or foreign regulatory agency threatened or
pending against or relating to MBI or any of its subsidiaries or any permit,
application or approval of MBI or any of its subsidiaries. There have been no
product recalls by MBI or any of its subsidiaries since January 1, 1994.
(l) To MBI's knowledge, MBI and each of its subsidiaries are
not in violation of, in any material respect, and are in material compliance
with, all application laws and regulations regarding the conduct of pre-clinical
and clinical investigations, including, but not limited to, good laboratory
practices, investigational new drug requirements, and requirements regarding
informed consent and Institutional Review Boards designed to ensure the
protection of the rights and welfare of human subjects, including, but not
limited to, the requirements provided in 21 C.F.R. Parts 50, 56, 58 and 312.
(m) To MBI's knowledge, the MBI Disclosure Schedule identifies
all the countries in which MBI's or its subsidiaries' products have been or are
being registered and/or approved for manufacturing, marketing or sale and the
products approved in each respective country. To MBI's knowledge, MBI or its
subsidiaries are authorized to sell products in each of the countries in which
such products are currently being sold and all Permits necessary for such sale
are held by MBI or one of its subsidiaries or licensees. The Disclosure Schedule
describes the owners of the approvals or registrations for the manufacture,
marketing or sale of MBI's or its subsidiaries' products.
4.24 INVENTORY. To MBI's knowledge, all inventory of MBI, or any of its
subsidiaries, which is held for sale or resale, including raw materials, work in
process and finished goods (collectively, "Inventory"), consists of items usable
and/or commercially saleable in the normal course of business.
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4.25 BANK ACCOUNTS. Section 4.25 of the MBI Disclosure Schedule
contains a list showing: (a) the name of each bank, safe deposit company or
other financial institution in which MBI or any of its subsidiaries has an
account, lock box or safe deposit box; and (b) the names of all persons
authorized to draw thereon or to have access thereto and the names of all
persons, if any, holding powers of attorney from MBI or any of its subsidiaries.
4.26 ENVIRONMENTAL MATTERS.
(a) For purposes of this Agreement, the term "Environmental
Laws" means any federal, state, local and foreign statutes, laws (including,
without limitation, common law), judicial decisions, regulations, ordinances,
rules, judgments, orders, codes, injunctions, permits, governmental agreements
or governmental restrictions relating to human health and safety, the
environment or to pollutants, contaminants, radioactive materials, wastes, or
chemicals.
(b) Except as set forth in the MBI SEC Reports filed prior to
the date hereof and with such exceptions as, individually or in the aggregate,
have not had, and would not reasonably be expected to have, an MBI Material
Adverse Effect, (i) no notice, notification, demand, request for information,
citation, summons, complaint or order has been received by, and no
investigation, action, claim, suit, proceeding or review is pending or, to the
knowledge of MBI or any of its subsidiaries, threatened by any person against,
MBI or any of its subsidiaries, and no penalty has been assessed against MBI or
any of its subsidiaries, in each case, with respect to any matters relating to
or arising out of any Environmental Law; (ii) MBI and its subsidiaries are and
have been in compliance with all Environmental Laws; (iii) there are no
liabilities of or relating to MBI or any of its subsidiaries relating to or
arising out of any Environmental Law of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, and there is no
existing condition, situation or set of circumstances which could reasonably be
expected to result in such a liability; and (iv) there has been no environmental
investigation, study, audit, test, review or other analysis conducted of which
MBI has knowledge in relation to the current or prior business of MBI or any of
its subsidiaries or any property or facility now or previously owned, leased or
operated by MBI or any of its subsidiaries which has not been delivered to
Palatin at least five days prior to the date hereof.
4.27 INSURANCE. There are no insurance policies maintained by or on
behalf of MBI or any of its subsidiaries in effect on the Effective Date except
as set forth on Section 4.27 of the MBI Disclosure Schedule.
4.28 TANGIBLE ASSETS. MBI and its subsidiaries own or lease all
buildings, machinery, equipment, and other tangible assets that are required for
or used in the operation or conduct of its business as presently operated or
conducted (the "Tangible Assets"). The Tangible Assets, taken as a whole, are
free from material defects (patent or latent), have been maintained in
accordance with normal industry practice, are in good operating condition and
repair (subject to normal wear and tear), and are suitable for the purposes for
which each of them is presently used. Except as set forth on Section 4.28 of the
MBI Disclosure Schedule, the Tangible Assets are free and clear of liens, claims
of third parties, security interests, and any other encumbrances whatsoever.
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4.29 YEAR 2000 COMPLIANCE. MBI and each of its subsidiaries have
conducted a commercially reasonable inventory of the hardware and software (the
"Computer Systems") used by MBI and its subsidiaries in its business, in order
to determine which parts of the Computer Systems are not Year 2000 compliant (as
defined below) and to estimate the cost of rendering such Computer Systems Year
2000 compliant prior to January 1, 2000 or such earlier date on which the
Computer Systems may shut down (a "hard crash") or produce incorrect
calculations or otherwise malfunction without becoming totally inoperable (a
"soft crash"). Each project that has or will be implemented by MBI with respect
to Year 2000 compliance, and the status of each such project, is listed on
Section 4.29 of the MBI Disclosure Schedule. For purposes of this Agreement,
"Year 2000 compliant" means that all of the hardware and software comprising the
Computer Systems will correctly differentiate between years, in different
centuries that end in the same two digits, and will accurately process date/time
data (including, but not limited to, calculating, comparing, and sequencing)
from, into and between the twentieth and twenty-first centuries, including leap
year calculations, including all equipment or devices incorporating imbedded
software or microcode.
4.30 SIGNIFICANT CUSTOMERS, SUPPLIERS, JOINT VENTURE PARTNERS AND
EMPLOYEES. The MBI SEC Reports or Section 4.30 of the MBI Disclosure Schedule
sets forth an accurate list of MBI Significant Customers, MBI Significant
Suppliers, MBI Joint Venture Partners and MBI Significant Employees. MBI or any
of its subsidiaries have no knowledge nor have they received any notice of any
intention by an (a) MBI Significant Customer to terminate its business
relationship with MBI or its subsidiaries or to limit or alter its business
relationship with MBI or its subsidiaries in any material respect; (b) MBI
Significant Supplier to terminate its business relationship with MBI or its
subsidiaries or to limit or alter its business relationship with MBI or its
subsidiaries in any material respect; (c) MBI Joint Venture Partner to terminate
its business relationship with MBI or its subsidiaries or to limit or alter its
business relationship with MBI or its subsidiaries in any material respect; or
(d) MBI Significant Employee intending to terminate his employment with MBI or
its subsidiaries. As used in this Article, (w) "MBI Significant Customer" means
the 10 largest customers of MBI and its subsidiaries, taken as a whole,
including distributors of MBI's products, measured in terms of sales volume in
dollars for the years ended March 31, 1998 and 1999 and for the nine month
period ending September 30, 1999, (x) "MBI Significant Supplier" means any
supplier of MBI and its subsidiaries from whom MBI or its subsidiaries has
purchased $50,000 or more of goods during the years ended March 31, 1998 and
1999 or $50,000 or more goods during the six (6) month period ending September
30, 1999, for use in MBI's or its subsidiaries' respective businesses; (y) "MBI
Joint Venture Partner" means any person that has entered into an agreement with
MBI or its subsidiaries relating to the purchase, development, distribution,
manufacture and/or sale of any of MBI's or its subsidiaries' products or
technologies; and (z) "MBI Significant Employee" means the Chief Executive
Officer, the President, the Senior Director of Research and Development or any
Vice President of MBI or its subsidiaries or any Executive Officer as defined in
the Exchange Act.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PALATIN AND MERGER SUBSIDIARY
Palatin and Merger Subsidiary represent and warrant to MBI that the
statements contained in this Article 5 are true and correct, except as set forth
in the disclosure schedule delivered by Palatin and Merger Subsidiary to MBI
concurrently herewith and identified as the "Palatin Disclosure Schedule."
5.1 ORGANIZATION AND QUALIFICATION.
(a) Palatin is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the
corporate power and authority to carry on its business as it is now being
conducted and currently proposed to be conducted, and to own and use its
properties currently owned and used by it. Palatin is duly qualified as a
foreign corporation to do business, and is in good standing, in each
jurisdiction where the character of its properties owned or held under lease or
the nature of its activities makes such qualification necessary, except where
the failure to be so qualified will not have a Palatin Material Adverse Effect
(as defined below). Complete and correct copies as of the date hereof of the
Certificate of Incorporation and Bylaws of Palatin and Certificates of
Qualification to do Business (for each applicable jurisdiction) and each of its
subsidiaries have been delivered to MBI as part of the Palatin Disclosure
Schedule. For the purposes of this Agreement a "Palatin Material Adverse Effect"
shall mean a material adverse effect on the business (as now conducted or as
proposed to be conducted until the Effective Date), properties, assets,
condition (financial or otherwise), liabilities, operations or results of
operations of Palatin and its subsidiaries taken as a whole.
(b) Merger Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the corporate power and authority to carry on its business as it is now being
conducted and currently proposed to be conducted, and to own and use its
properties currently owned and used by it. Complete and correct copies as of the
date hereof of the Certificate of Incorporation and Bylaws of Merger Subsidiary
have been delivered to MBI as part of the Palatin Disclosure Schedule.
5.2 CAPITALIZATION.
(a) The authorized capital stock of Palatin consists of
75,000,000 shares of common stock, par value $0.01 per share, and 10,000,000
shares of preferred stock, of which 264,000 shares have been designated Series A
Convertible Preferred Stock, par value $0.01 per share, 18,875 shares have been
designated Series B Convertible Preferred Stock, par value $0.01 per share, and
1,400,000 shares have been designated Series C Convertible Preferred Stock, par
value $0.01 per share. As of October 7, 1999, 7,240,329 (includes shares of
stock issuable upon surrender of RhoMed (defined below) Common Stock and
Preferred Stock and upon surrender of outstanding Common Stock of Interfilm,
Inc. and surrender of certificates representing shares of Palatin Common Stock
outstanding prior to September 5, 1997) shares of Palatin Common Stock, 38,936
shares of Series A Convertible Preferred Stock, 12,875 shares of Series B
Convertible Preferred Stock and 700,000 shares of Series C Convertible Preferred
Stock
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were validly issued and outstanding, fully paid and nonassessable; and there
have been no material changes in these numbers through the date hereof. As of
the date hereof, there are no bonds, debentures, notes or other evidences of
indebtedness having the right to vote on any matters on which Palatin's
stockholders may vote ("Palatin Voting Debt") issued or outstanding. As of
October 7, 1999, options and warrants to acquire 2,849,158 shares and 2,572,679
shares, respectively, of Palatin Common Stock were outstanding, and there has
been no material change in these numbers through the date hereof. Except for
those options and warrants and shares of Palatin Common Stock issuable upon
conversion of the Series A, B and C Convertible Preferred Stock, there are no
options, warrants, calls or other rights, agreements or commitments outstanding
obligating Palatin to issue, deliver or sell shares of its capital stock or debt
securities, or obligating Palatin to grant, extend or enter into any such
option, warrant, call or other such right, agreement or commitment. All of the
shares of Palatin Common Stock issuable in accordance with this Agreement in
exchange for MBI Common Stock at the Effective Date will be, when so issued,
duly authorized, validly issued, fully paid and nonassessable, and shall be
delivered free and clear of all liens, claims, charges and encumbrances of any
kind or nature whatsoever.
(b) Assuming the conversion of all securities of Palatin that
are convertible as of the date hereof (including the pro forma effect of the
issuance of the Merger Consideration) into Palatin Common Stock and the exercise
of all options and warrants to acquire Palatin Common Stock, Palatin would have
9,943,992 shares of Palatin Common Stock issued and outstanding (the "Diluted
Share Total") calculated as set forth in Section 5.2 of the Disclosure Schedule.
(c) The authorized capital stock of Merger Subsidiary consists
of 1000 shares of common stock, par value $.01 per share, of which 100 shares
are issued and outstanding and owned by Palatin.
5.3 OTHER SUBSIDIARIES. Other than Merger Subsidiary, RhoMed
Incorporated ("RhoMed") and Interfilm Technologies, Inc. ("Interfilm") are
Palatin's only Significant Subsidiaries.
(a) RhoMed is a corporation duly organized, validly existing
and in good standing under the laws of New Mexico and has the corporate power to
carry on its business as it is now being conducted and currently proposed to be
conducted. RhoMed is duly qualified as a foreign corporation to do business, and
is in good standing, in each jurisdiction where the character of its properties
owned or held under lease or the nature of its activities makes such
qualification necessary except where the failure to be so qualified will not
have a Palatin Material Adverse Effect. All the outstanding shares of capital
stock of RhoMed are validly issued, fully paid and nonassessable and are owned
by Palatin or by another subsidiary of Palatin free and clear of any liens,
claims or encumbrances.
(b) Interfilm is a corporation duly organized, validly
existing and in good standing under the laws of New York and has the corporate
power to carry on its business as it is now being conducted and currently
proposed to be conducted. Interfilm is duly qualified as a foreign corporation
to do business, and is in good standing, in each jurisdiction where the
character of its properties owned or held under lease or the nature of its
activities makes such
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qualification necessary except where the failure to be so qualified will not
have a Palatin Material Adverse Effect. All the outstanding shares of capital
stock of Interfilm are validly issued, fully paid and nonassessable and are
owned by Palatin or by another subsidiary of the Palatin free and clear of any
liens, claims or encumbrances.
(c) Except as disclosed in the Palatin SEC Reports or as
disclosed in Section 5.3 of the Palatin Disclosure Schedule, (i) there are no
existing options, warrants, calls or other rights, agreements or commitments of
any character relating to the issued or unissued capital stock or other
securities of RhoMed, and (ii) Palatin does not directly or indirectly own any
interest in any other corporation, partnership, joint venture or other business
association or entity.
5.4 AUTHORITY RELATIVE TO THIS AGREEMENT. Palatin and Merger Subsidiary
have the corporate power to enter into this Agreement and, subject to approval
of this Agreement by the holders of Palatin Common Stock and Series A
Convertible Preferred Stock and by the holder of all of Merger Subsidiary's
issued and outstanding common stock (the "Sole Shareholder"), to consummate the
Merger and to perform its obligations hereunder. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by Palatin's and Merger Subsidiary's Board of Directors.
This Agreement constitutes a valid and legally binding obligation of Palatin and
Merger Subsidiary enforceable in accordance with its terms except as enforcement
may be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and except that the availability of
equitable remedies, including specific performance, is subject to the discretion
of the court before which any proceeding therefor may be brought. Except for the
approval of the holders of Palatin Common Stock and the holders of the Palatin
Series A Convertible Preferred Stock, each described in Section 3.7(b), and the
approval of the Sole Shareholder, no other corporate proceedings on the part of
Palatin and Merger Subsidiary are necessary to authorize this Agreement and the
transactions contemplated hereby. Except as set forth in Section 5.4 of the
Palatin Disclosure Schedule or the Palatin SEC Reports, Palatin and Merger
Subsidiary are not subject to or obligated under (i) any charter, bylaw,
indenture or other loan document provision or (ii) any other contract, license,
franchise, permit, order, decree, concession, lease, instrument, judgment,
statute, law, ordinance, rule or regulation applicable to Palatin or any of its
subsidiaries or their respective properties or assets which would be breached or
violated, or under which there would be a default (with or without notice or
lapse of time, or both), or under which there would arise a right of
termination, cancellation or acceleration of any obligation or the loss of a
material benefit, by its executing and carrying out this Agreement, other than,
in the case of clause (ii) only, (A) any breaches, violations, defaults,
terminations, cancellations, accelerations or losses which, either singly or in
the aggregate, will not have a Palatin Material Adverse Effect or prevent the
consummation of the transactions contemplated hereby and (B) the laws and
regulations referred to in the next sentence. Except as disclosed in Section 5.4
of Palatin Disclosure Schedule or, in connection, or in compliance, with the
provisions of the Securities Act, the Exchange Act, and the corporation,
securities or blue sky laws or regulations of the various states, no filing or
registration with, or authorization, consent or approval of, any public body or
authority is necessary for the consummation by Palatin and Merger Subsidiary of
the Merger or the other transactions contemplated hereby, other than filings,
registrations, authorizations, consents or approvals the failure of which to
make or obtain would not have a
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Palatin Material Adverse Effect or prevent the consummation of the transactions
contemplated hereby.
5.5 REPORTS AND FINANCIAL STATEMENTS. Palatin has previously furnished
MBI with true and complete copies of all documents required to be filed with the
Commission for the period beginning July 1, 1996 and ending on the date hereof.
Palatin has filed with the Commission all documents it is required by the
Commission to file as of the date hereof (together with all exhibits thereto,
the "Palatin SEC Reports"). As of their respective dates, the Palatin SEC
Reports complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the Commission thereunder applicable to such Palatin SEC Reports.
As of their respective dates, the Palatin SEC Reports did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The audited
consolidated financial statements and unaudited interim financial statements of
Palatin included in the Palatin SEC Reports comply as to form in all material
respects with applicable accounting requirements of the Securities Act and with
the published rules and regulations of the Commission with respect thereto. The
financial statements included in the Palatin SEC Reports (i) have been prepared
in accordance with GAAP applied on a consistent basis (except as may be
indicated therein or in the notes thereto), (ii) present fairly, in all material
respects, the financial position of Palatin and its subsidiaries as at the dates
thereof and the results of their operations and cash flow for the periods then
ended subject, in the case of the unaudited interim financial statements, to
normal year-end audit adjustments and any other adjustments described therein
and the fact that certain information and notes have been condensed or omitted
in accordance with the Exchange Act and the rules promulgated thereunder, and
(iii) are in all material respects in accordance with the books of account and
records of Palatin and its subsidiaries.
5.6 ABSENCE OF CERTAIN CHANGES. Except as disclosed in the Palatin SEC
Reports or as set forth in Section 5.6 of the Palatin Disclosure Schedule, since
June 30, 1999, Palatin and its subsidiaries have conducted their business in the
ordinary course in good faith consistent with past practice and there has not
been:
(a) any event, occurrence or development of a state of
circumstances or facts which has had or reasonably would be expected to have,
individually or in the aggregate, a Palatin Material Adverse Effect.
(b) any declaration, setting aside or payment of any dividend
or other distribution with respect to any shares of capital stock of Palatin;
(c) any amendment of any term of any outstanding security of
Palatin or any of its subsidiaries;
(d) any transaction or commitment made, or any contract,
agreement or settlement entered into, by (or judgment, order or decree
affecting) Palatin or any of its subsidiaries relating to its assets or business
(including the acquisition or disposition of any assets) or any relinquishment
by Palatin or any of its subsidiaries of any contract or other right, in either
case, material to Palatin and its subsidiaries taken as a whole;
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(e) any change in any method of accounting or accounting
practice (other than any change for tax purposes) by Palatin or any of its
subsidiaries, except for any such change which is not significant or which is
required by reason of a concurrent change in GAAP; or
(f) any (i) grant of any severance or termination pay to (or
amendment to any such existing arrangement with) any director, officer or
employee of Palatin or any of its subsidiaries, (ii) entering into of any
employment, deferred compensation or other similar agreement (or any amendment
to any such existing agreement) with any director, officer or employee of
Palatin or any of its subsidiaries, (iii) increase in benefits payable under any
existing severance or termination pay policies or employment agreements, or (iv)
increase in (or amendments to the terms of) compensation, bonus or other
benefits payable to directors, officers or employees of Palatin or any of its
subsidiaries.
5.7 LITIGATION. Except as disclosed in the Palatin SEC Reports or as
disclosed in Section 5.7 of the Palatin Disclosure Schedule, there is no suit,
action or proceeding pending or, to the knowledge of Palatin, threatened against
Palatin or any of its subsidiaries which, either individually or in the
aggregate, could reasonably be expected to have a Palatin Material Adverse
Effect, nor is there any judgment, decree, injunction, rule or order of any
court, governmental department, commission, agency, instrumentality or
arbitrator outstanding against Palatin or any of its subsidiaries having, or
which in the future could reasonably be expected to have, either individually or
in the aggregate, a Palatin Material Adverse Effect.
5.8 INFORMATION IN DISCLOSURE DOCUMENTS, REGISTRATION STATEMENTS, ETC.
None of the information with respect to Palatin or its subsidiaries to be
included or incorporated by reference in the Proxy Statement or the Registration
Statement will, in the case of the Proxy Statement or any amendments or
supplements thereto, at the time of the mailing of the Proxy Statement and any
amendments or supplements thereto, at the time of the Palatin Meeting to be held
in connection with the Merger, or, in the case of the Registration Statement, at
the time it becomes effective and at the Effective Date, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading; PROVIDED, HOWEVER,
that this provision shall not apply to statements or omissions in the
Registration Statement or Proxy Statement based upon information furnished by or
on behalf of MBI for use therein. No representation or warranty made by Palatin
contained in this Agreement and no statement contained in any certificate, list,
exhibit or other instrument specified in this Agreement, including without
limitation the Palatin Disclosure Schedule, contains any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statements contained therein, in light of the circumstances under which they
were made, not misleading.
5.9 EMPLOYEE BENEFIT PLANS. Except as disclosed in the Palatin SEC
Reports or as disclosed in Section 5.9 of the Palatin Disclosure Schedule, there
are no material employee benefit or compensation plans, agreements or
arrangements, including "employee benefit plans," as defined in Section 3(3) of
ERISA, and including, but not limited to, plans, agreements or arrangements
relating to former employees, including, but not limited to, retiree medical
plans, maintained by Palatin or any of its subsidiaries or any entity which is
under "common control"
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with Palatin within the meaning of Section 4001 of ERISA ("Controlled Entity")
or material collective bargaining agreements to which Palatin or any of its
subsidiaries is a party (together, the "Palatin Benefit Plans"). To Palatin's
knowledge, no default exists with respect to the obligations of Palatin or any
of its subsidiaries under any such Palatin Benefit Plan, which default, either
alone or in the aggregate, would have a Palatin Material Adverse Effect. Since
January 1, 1998, there have been no disputes or grievances subject to any
grievance procedure, unfair labor practice proceedings, arbitration or
litigation under such Palatin Benefit Plans, which have not been finally
resolved, settled or otherwise disposed of, nor is there any default, or any
condition which, with notice or lapse of time or both, would constitute such a
default, under any such Palatin Benefit Plans, by Palatin or its subsidiaries
or, to the knowledge of Palatin and its subsidiaries, any other party thereto,
which failure to resolve, settle or otherwise dispose of or default, either
alone or in the aggregate, would have a Palatin Material Adverse Effect. Since
January 1, 1998 there have been no strikes, lockouts or work stoppages or
slowdowns, or to the best knowledge of Palatin and its subsidiaries,
jurisdictional disputes or organizing activity occurring or threatened with
respect to the business or operations of Palatin or its subsidiaries which have
had or would have a Palatin Material Adverse Effect. Palatin has made available
to MBI true, complete and correct copies of (i) the most recent annual report on
Form 5500 filed with the Internal Revenue Service with respect to each Benefit
Plan, (ii) the most recent summary plan description for each Benefit Plan for
which such summary plan description is required and (iii) each plan document,
trust agreement and group annuity or insurance contract related to any Benefit
Plan.
5.10 ERISA. All Palatin Benefit Plans have been administered in
accordance with, and are in compliance with, its terms and the applicable
provisions of ERISA and any other applicable law, except where such failures to
administer or comply would not have a Palatin Material Adverse Effect. Except as
disclosed in Section 5.10 of the Palatin Disclosure Schedule, each Palatin
Benefit Plan which is intended to meet the requirements of Section 401(a) of the
Code has been determined by the Internal Revenue Service to be "qualified,"
within the meaning of such section of the Code, and Palatin knows of no fact
which is likely to have an adverse effect on the qualified status of such plans.
None of the Palatin Benefit Plans is a defined benefit pension plan. To
Palatin's knowledge, there are not now nor have there been any nonexempt
"prohibited transactions," as such term is defined in Section 4975 of the Code
or Section 406 of ERISA, involving Palatin's Benefit Plans which could subject
Palatin or its subsidiaries to the penalty or tax imposed under Section 502(i)
of ERISA or Section 4975 of the Code. Neither Palatin nor any of its
subsidiaries has incurred any liability for any tax, excise tax, penalty or fee
with respect to any Benefit Plan, including, but not limited to, taxes arising
under Sections 4971 through 4980B of the Code, and no event has occurred and no
circumstance has existed that could give rise to any such liability. No Palatin
Benefit Plan which is subject to Title IV of ERISA has been completely or
partially terminated; no proceedings to completely or partially terminate any
Palatin Benefit Plan have been instituted within the meaning of Subtitle C of
said Title IV of ERISA; no accumulated funding deficiency within the meaning of
Section 412 of the Code or Section 302 of ERISA, whether or not waived, has
occurred with respect to any Benefit Plan; and no reportable event within the
meaning of Section 4043(b) of Subtitle C of ERISA has occurred with respect to
any Palatin Benefit Plan. Neither Palatin nor any of its subsidiaries nor any
Controlled Entity has made a complete or partial withdrawal, within the meaning
of Section 4201 of ERISA. from any multiemployer plan which has resulted in, or
is reasonably expected to result in, any withdrawal liability to Palatin or any
of its subsidiaries except for any such liability
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which would not have a Palatin Material Adverse Effect. Neither Palatin nor any
of its subsidiaries nor any Controlled Entity has engaged in any transaction
described in Section 4069 of ERISA or ceased operations at any facility or
withdrawn from any Benefit Plan in a manner which could subject it to liability
under Section 4062, 4063 or 4064 of ERISA except for any such transaction which
would not have a Palatin Material Adverse Effect. No Benefit Plan maintained by
Palatin or any of its subsidiaries or any related trust or other funding medium
thereunder or any fiduciary thereof is, to the knowledge of Palatin, the direct
or indirect subject of a material audit, investigation or examination by a
governmental or quasi-governmental agency. Except as set forth in Section 5.10
of the Palatin Disclosure Schedule, the execution of, and performance of the
transactions contemplated by, this Agreement will not (either along or upon the
occurrence of any additional or subsequent events) constitute an event under any
Benefit Plan or agreement that will or may reasonably be expected to result in
any payment (whether severance pay or otherwise), accelerated vesting or
increase in benefits with respect to any employee, former employee or director
of Palatin, or its subsidiaries, whether or not any such payment would be an
"excess parachute payment" within the meaning of Section 280G of the Code.
5.11 TAKEOVER PROVISIONS INAPPLICABLE. The Board of Directors of
Palatin have taken the necessary action to make inapplicable to the Merger, and
any other transactions contemplated hereby, the restrictions set forth in
Section 203 of the DGCL, and any other applicable antitakeover or similar
statute or regulations.
5.12 PALATIN ACTION. The Board of Directors of Palatin (at a meeting
duly called and held) has by the requisite vote of all directors present (i)
determined that the Merger is advisable and in the best interests of Palatin and
its stockholders, (ii) approved the Merger in accordance with the provisions of
Section 251 of the DGCL, (iii) recommended the approval of the Palatin Share
Proposal by the holders of Palatin Common Stock and directed that the Merger be
submitted for consideration by Palatin's stockholders at the Palatin Meeting,
(iv) taken all necessary steps to render the restrictions set forth in Section
203 of the DGCL inapplicable to the Merger and the transactions contemplated by
this Agreement, and (v) adopted a resolution having the effect of causing
Palatin not to be subject, to the extent permitted by applicable law, to any
state takeover law that may purport to be applicable to the Merger and the
transactions contemplated by this Agreement. Palatin does not own, beneficially
or otherwise, and to the knowledge of Palatin, no stockholder of Palatin owns,
beneficially or otherwise, any outstanding MBI Common Stock on the date hereof.
5.13 FAIRNESS OPINION. Palatin has received the written opinion of
Hambrecht & Quist, financial advisors to Palatin, dated the date hereof and a
copy of which has been delivered to MBI, to the effect that the Exchange Ratio
is fair to the stockholders of Palatin from a financial point of view and, as of
the date hereof, such opinion has not been withdrawn.
5.14 FINANCIAL ADVISOR. Palatin represents and warrants that (i) except
for Hambrecht & Quist, no broker, finder or investment banker or other
intermediary is entitled to any brokerage, finder's or other fee or commission
in connection with the Merger or the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Palatin, and (ii) the fees and
commissions payable to Hambrecht & Quist as contemplated by this Section
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5.14 will not exceed the aggregate amount set forth in that certain letter,
dated [DATE] from Hambrecht & Quist to Palatin.
5.15 COMPLIANCE WITH APPLICABLE LAWS. Palatin and its subsidiaries hold
all permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities to carry on their respective businesses as currently
conducted, including, without limitation, applicable state insurance and health
commissions, except for such permits, licenses, variances, exemptions, orders
and approvals the failure of which to hold would not have a Palatin Material
Adverse Effect (the "Palatin Permits"). Palatin and its subsidiaries are in
compliance with the terms of Palatin Permits, except for such failures to
comply, which singly or in the aggregate, would not have a Palatin Material
Adverse Effect. Except as disclosed in the Palatin SEC Reports filed prior to
the date of this Agreement or in Section 5.15 of the Palatin Disclosure
Schedule, the businesses of Palatin and its subsidiaries are not being conducted
in violation of any law, ordinance or regulation of any Governmental Entity,
except for possible violations which individually or in the aggregate do not and
would not have a Palatin Material Adverse Effect. Except as disclosed in Section
5.15 of the Palatin Disclosure Schedule, no investigation or review by any
Governmental Entity with respect to Palatin or any of its subsidiaries is
pending, or, to Palatin's knowledge, threatened, nor has any Governmental Entity
indicated an intention to conduct the same, other than those the outcome of
which would not have a Palatin Material Adverse Effect.
5.16 LIABILITIES. Except as disclosed in Section 5.16 of Palatin
Disclosure Schedule, as of June 30, 1999, neither Palatin nor any of its
subsidiaries has any liabilities or obligations (absolute, accrued, contingent
or otherwise) which are material, individually or in the aggregate, to Palatin
and its subsidiaries and which are not disclosed or provided for in the most
recent Palatin SEC Reports. To the knowledge of Palatin, there was no basis, as
of June 30, 1999, for any claim or liability of any nature against Palatin or
its subsidiaries, whether absolute, accrued, contingent or otherwise, which is
or would have a Palatin Material Adverse Effect, not reflected in Palatin SEC
Reports or in Section 5.16 of the Palatin Disclosure Schedule.
5.17 TAXES. Each of Palatin and its subsidiaries has timely filed
(including extensions of time allowed by law) all Tax Returns required to be
filed by any of them and has paid (or Palatin has paid on its behalf), or has
set up an adequate reserve for the payment of, all Taxes required to be paid in
respect of the periods covered by such returns (except where the failure to pay
would not have a Palatin Material Adverse Effect). The information contained in
such Tax Returns is true, complete and accurate in all material respects, except
where a failure to be so would not have a Palatin Material Adverse Effect.
Except as disclosed in Section 5.17 of the Palatin Disclosure Schedule, neither
Palatin nor any subsidiary of Palatin is delinquent in the payment of any Tax,
assessment or governmental charge, except where such delinquency would not have
a Palatin Material Adverse Effect. The charges, accruals and reserves for Taxes
with respect to Palatin and its subsidiaries reflected on the audited financials
of Palatin dated June 30, 1999 are adequate under GAAP to cover the Tax
liabilities accruing through the date thereof. There is no action, suit,
proceeding, audit or claim now proposed or pending against or with respect to
Palatin or any of its subsidiaries in respect of any Tax where there is a
reasonable possibility of an adverse determination. No deficiencies for any
Taxes have been proposed, asserted or assessed against Palatin or any of its
subsidiaries that have not been finally settled or
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paid in full, which would have a Palatin Material Adverse Effect, and no
requests for waivers of the time to assess any such tax are pending.
5.18 CERTAIN AGREEMENTS. Neither Palatin nor any of its subsidiaries is
in default (or would be in default with notice or lapse of time, or both) under
any agreement or instrument filed as an exhibit to or incorporated by reference
in any of the Palatin SEC Reports, whether or not such default has been waived,
which default, individually or in the aggregate with other such defaults, would
have a Palatin Material Adverse Effect.
5.19 INTELLECTUAL PROPERTY. (a) Section 5.19 of the Palatin Disclosure
Schedule lists all Patents, Patent applications, registered and applied for
Trademarks and material unregistered trademarks, service marks and trade names
owned by (or registered in the name of) Palatin or any of its subsidiaries that
are considered by Palatin to be material to its business as currently conducted
or as proposed to be conducted. Section 5.19 of the Palatin Disclosure Schedule
includes as to each Patent or Trademark or Patent and Trademark applications
listed thereon: a Patent number or Patent application number a Trademark
registration number or Trademark application number, as applicable for each
listed Trademark and non-U.S. Patent, and a docket or Patent number or Patent
application number for each listed U.S. Patent; the country or countries in
which each Patent or Trademark is issued, registered or applied for, as
applicable; the application date or registration date for each listed Trademark
and the docket number or issue date for each listed Patent, as applicable; and
the owner of such Patent or Trademark. Except as disclosed therein, all Patents
and Trademarks listed on Section 5.19 of the Palatin Disclosure Schedule exist
and have been maintained in good standing, including without limitation, the
timely payment of any maintenance fees and annuities thereon. Except as
disclosed in Section 5.19 of the Palatin Disclosure Schedule or as would not
have a Palatin Material Adverse Effect, Palatin has taken all actions which it
considers commercially reasonable and made all applications and filings which it
considers commercially reasonable pursuant to applicable laws to secure, perfect
and protect its rights in the Intellectual Property, for the conduct of its
business as presently conducted and, to Palatin's knowledge, as proposed to be
conducted, and, to Palatin's knowledge, neither Palatin, its subsidiaries nor
any of their respective agents have practiced inequitable conduct under the
Patent laws or other applicable laws with respect to any of the foregoing.
Except as would not have a Palatin Material Adverse Effect, Palatin and each of
its subsidiaries has taken all steps which it considers commercially reasonable
(including without limitation entering into appropriate confidentiality,
non-disclosure and non-competition agreements with all officers, directors and
employees of Palatin and its subsidiaries with access to or knowledge of the
Intellectual Property of Palatin or its subsidiaries (and the products and
technology of Palatin and its subsidiaries)) to safeguard and maintain the
secrecy and confidentiality of, and to assign to Palatin or its subsidiaries, as
applicable, all of such employee's rights in all such Intellectual Property
invented or developed by such employee within the scope of such employee's
employment and relating to Palatin's business. All key full-time employees of
Palatin and substantially all other full-time employees of Palatin and its
subsidiaries have signed a confidentiality and invention assignment agreement
for the benefit of Palatin or one of its subsidiaries to assign such employee's
rights in Intellectual Property to Palatin or one of its subsidiaries.
(b) Except as set forth in the Palatin SEC Reports or in
Section 5.19 of the Palatin Disclosure Schedule Schedule or as would not have a
Palatin Material Adverse
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Effect, Palatin and its subsidiaries own, are duly licensed or otherwise have
the right to use all of the Intellectual Property used or believed by Palatin to
be required for use in connection with the business of Palatin and its
subsidiaries as presently conducted and, to Palatin's knowledge, as proposed to
be conducted through the Effective Date; and, Palatin has no reason to believe
that such Intellectual Property is not valid and enforceable against third
parties. Except as set forth in the Palatin SEC Reports or in Section 5.19 of
the Palatin Disclosure Schedule, to Palatin's knowledge, Palatin and its
subsidiaries own, on an exclusive basis, free and clear of any Liens, and have
the unrestricted right to use, license, sell or dispose of, and the right to
bring infringement actions with respect to all the Intellectual Property owned
by Palatin and its subsidiaries. Except as set forth in the Palatin SEC Reports
or in Section 5.19 of the Palatin Disclosure Schedule or as would not have a
Palatin Material Adverse Effect, to Palatin's knowledge, Palatin and its
subsidiaries do not pay, and have no obligation (whether absolute or contingent)
to pay, royalties, honoraria, fees or other payments to any person by reason of
the ownership, use, license, sale or disposition of any Intellectual Property by
Palatin or its subsidiaries. Except as set forth in the Palatin SEC Reports or
in Section 5.19 of the Palatin Disclosure Schedule, to Palatin's knowledge,
neither Palatin nor any of its subsidiaries has received notice (written or
oral) of any claim of any person asserting rights in, or a conflict with, the
Intellectual Property used or required for use in connection with the business
of Palatin and its subsidiaries as presently conducted and as proposed to be
conducted through the Effective Date (including without limitation the Patents
and Trademarks listed in Section 5.19 of the Palatin Disclosure Schedule); and
Palatin has not been informed of any reasonable basis for such a claim. Except
for Intellectual Property not related to Palatin's business as currently
conducted or as proposed to be conducted through the Effective Date, and without
limiting the foregoing, to Palatin's knowledge, no other person has claimed the
right to use in connection with substantially similar or closely related goods
and in the same geographic area any Trademark which is identical or confusingly
similar to any Trademark used by Palatin or its subsidiaries, except pursuant to
written agreements with Palatin or its subsidiaries which are listed in the
Palatin SEC Reports or Section 5.19 of the Palatin Disclosure Schedule. Except
for Intellectual Property not related to Palatin's business as currently
conducted, to Palatin's knowledge, neither Palatin nor any of its subsidiaries
has provided notice (written or oral) to any Person of infringement of any
Intellectual Property right held by Palatin or its subsidiaries; and Palatin has
not been informed of any reasonable basis for such a claim. There is no
agreement, arrangement or understanding (written or oral) between Palatin or any
of its subsidiaries and another person which would prevent or restrict Palatin
and its subsidiaries after the Merger from using, selling, licensing or
disposing of any material Intellectual Property of Palatin and its subsidiaries
on substantially the same terms and conditions applicable to Palatin and its
subsidiaries immediately prior to the Merger.
(c) Execept as would not have a Palatin Material Adverse
Effect, Palatin represents that the entry by Palatin into this Agreement will
not require the consent of any third party (other than consents that have been
obtained by Palatin and provided to MBI) who is a party to an agreement,
arrangement or understanding described in Section 5.19(b) of the Palatin
Disclosure Schedule and that entry by Palatin into this Agreement will not
otherwise adversely affect the validity of any such agreement, arrangement or
understanding, nor adversely affect the benefit that inures to Palatin from such
agreement, arrangement or understanding. Except as disclosed in the Palatin SEC
Reports or as would not have a Palatin Material Adverse Effect, Section 5.19 of
the Palatin Disclosure Schedule lists all material agreements,
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arrangements or understandings (whether written or oral, and if oral, Section
5.19 of the Palatin Disclosure Schedule contains a brief description of the
principal terms thereof) pursuant to which Palatin or its subsidiaries has
either purchased, sold, licensed, secured or disposed of rights in Intellectual
Property (except for Intellectual Property not related to Palatin's business as
currently conducted or proposed to be conducted through the Effective Date) from
or to another person or agreed to do any of the foregoing (other than licenses
to commercially available off-the-shelf computer software acquired or entered
into by Palatin or its subsidiaries in the ordinary course of business )
("Intellectual Property Agreements"). Except as disclosed in the Palatin SEC
Reports or as would not have a Palatin Material Adverse Effect, to Palatin's
belief, each of the parties thereto have performed, in all material respects,
all obligations under each Intellectual Property Agreement which are required to
be performed by such party, and there is no default (or event which with notice
or lapse of time would constitute a default) thereunder. To Palatin's belief,
each Intellectual Property Agreement is enforceable against each of the parties
thereto pursuant to its terms.
(d) Except as disclosed in the Palatin SEC Reports, to
Palatin's belief, the operation of the business of Palatin and its subsidiaries
as presently conducted and as proposed to be conducted through the Effective
Date (including without limitation the manufacture, sale, use, trade dress,
packaging, license, or other exploitation of products and technology currently
marketed or in development) does not and will not infringe, trespass or
otherwise violate the valid Intellectual Property rights of any person, the
result of which would be a Palatin Material Adverse Effect. Without limiting the
foregoing, to Palatin's knowledge and except as disclosed in the Palatin SEC
Reports, neither Palatin nor any of its subsidiaries has received any notice
(written or oral) of any material infringement of any Intellectual Property
right held by another person; and, to Palatin's knowledge, there is no
reasonable basis for such a claim. Except as set forth in the Intellectual
Property Agreements, neither Palatin nor any of its subsidiaries is obligated to
indemnify any person for any material liability, cost or expense arising from
such person's use, sale, licensing or disposition of any Intellectual Property
or such person's manufacture, use, sale, license or other exploitation of any
product or technology.
5.20 ACCOUNTING MATTERS. Neither Palatin nor, to its knowledge, any of
its affiliates, has through the date hereof, taken or agreed to take any action
that would prevent Palatin from accounting for the business combination to be
effected by the Merger as (i) a purchase and (ii) as a "reorganization" within
Section 368 of the Code.
5.21 NO PALATIN MATERIAL ADVERSE EFFECT. Except as disclosed in the
Palatin SEC Reports filed prior to the date hereof or in the Palatin Disclosure
Schedule, there does not exist any fact or circumstance which, individually or
together with another fact or circumstance, could reasonably be expected to
result in a Palatin Material Adverse Effect.
5.22 INVESTMENT COMPANY ACT. Palatin is not an "investment company"
within the meaning of the Investment Company Act of 1940.
5.23 FDA. Except as disclosed in the Palatin SEC Reports or in Section
5.23 of the Palatin Disclosure Schedule:
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(a) To Palatin's knowledge, as to each drug of Palatin or any
of its subsidiaries for which a Biologic License Application ("BLA") and ANDA
has been approved by the FDA, which drugs are described in the Palatin SEC
Reports or in the Palatin Disclosure Schedule and such BLAs and ANDAs are
exclusively owned by Palatin or one of its subsidiaries and the applicant and
all persons performing operations covered by the application are not in
violation of, in any material respect, and are in material compliance with, 21
U.S.C. (S)(S) 355, 21 C.F.R. Parts 314 et seq., respectively, and all terms and
conditions of the application.
(b) To Palatin's knowledge, all manufacturing operations
conducted by or for the benefit of Palatin and its subsidiaries are not in
violation of, in any material respect, and have been and are being conducted in
material compliance with, the good manufacturing practice regulations set forth
in 21 C.F.R. Parts 210 and 211.
(c) To Palatin's knowledge, neither Palatin and its
subsidiaries nor their respective officers, employees, or agents have made an
untrue statement of material fact or fraudulent statement to the FDA, failed to
disclose a material fact required to be disclosed to the FDA, or committed an
act, made a statement, or failed to make a statement that could reasonably be
expected to provide a basis for the FDA to invoke its policy respecting "Fraud,
Untrue Statements of Material Facts, Bribery, and Illegal Gratuities," set forth
in 56 Fed. Reg 46191 (September 10, 1991) and any amendments thereto.
(d) No reports of inspection observations, establishment
inspection reports or warning letters have been received from or issued by the
FDA in connection with any approved product within the last three years that
allege material lack of compliance with the FDA regulatory requirements by
Palatin, its subsidiaries or, to Palatin's knowledge, persons covered by product
applications or otherwise performing services for the benefit of Palatin or its
subsidiaries.
(e) Neither Palatin nor its subsidiaries have received any
written notice or has knowledge that the FDA has commenced or threatened to
initiate, any action to withdraw its approval or request the recall of any
product of Palatin or its subsidiaries or commenced or threatened to initiate,
any action to enjoin production of any facility owned or used by Palatin or its
subsidiaries or any facility at which any of Palatin's or its subsidiaries'
Manufacturing Locations.
(f) Neither Palatin and its subsidiaries, nor, to the
knowledge of Palatin, their respective officers, employees, agents or
affiliates, has been convicted of any crime or engaged in any conduct for which
debarment is mandated by 21 U.S.C. (S) 335a(a) or authorized by 21 U.S.C. (S)
335a(b).
(g) To Palatin's knowledge, there are no lawsuits, actions,
arbitrations or legal or administrative or regulatory proceedings, charges,
complaints, or investigations by the FDA or any other Governmental Entity
pending against Palatin or any of its subsidiaries. To Palatin's knowledge,
there are no proceedings pending with respect to violation by Palatin or any
subsidiary of the Food, Drug and Cosmetic Act, FDA regulations adopted
thereunder, or any other legislation or regulation promulgated by any other
Governmental Entity which might result
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in the revocation, cancellation, suspension, limitation or adverse modification
of any permit, application or approval.
(h) Neither Palatin nor any of its subsidiaries have been
served with any complaint or received any other notices of lawsuits,
arbitrations, legal or administrative or regulatory proceedings, charges,
complaints or investigations by any federal, state or foreign regulatory agency
threatened or pending against or relating to Palatin or any of its subsidiaries
or any permit, application or approval of Palatin or any of its subsidiaries.
There have been no product recalls by Palatin or any of its subsidiaries since
January 1, 1994.
(i) To Palatin's knowledge, Palatin and each of its
subsidiaries are not in violation of, in any material respect, and are in
material compliance with, all application laws and regulations regarding the
conduct of pre-clinical and clinical investigations, including, but not limited
to, good laboratory practices, investigational new drug requirements, and
requirements regarding informed consent and Institutional Review Boards designed
to ensure the protection of the rights and welfare of human subjects, including,
but not limited to, the requirements provided in 21 C.F.R. Parts 50, 56, 58 and
312.
(j) To Palatin's knowledge, the Disclosure Schedule identifies
all the countries in which Palatin's or its subsidiaries' products have been or
are being registered and/or approved for manufacturing, marketing or sale and
the products approved in each respective country. To Palatin's knowledge,
Palatin or its subsidiaries are authorized to sell products in each of the
countries in which such products are currently being sold and all Permits
necessary for such sale are held by Palatin or one of its subsidiaries. The
Disclosure Schedule describes the owners of the approvals or registrations for
the manufacture, marketing or sale of Palatin's or its subsidiaries' products.
5.24 BANK ACCOUNTS. Section 5.24 of the Palatin Disclosure Schedule
contains a list showing: (a) the name of each bank, safe deposit company or
other financial institution in which Palatin or any of its subsidiaries has an
account, lock box or safe deposit box; and (b) the names of all persons
authorized to draw thereon or to have access thereto and the names of all
persons, if any, holding powers of attorney from Palatin or any of its
subsidiaries.
5.25 ENVIRONMENTAL MATTERS. Except as set forth in the Palatin SEC
Reports and with such exceptions as, individually or in the aggregate, have not
had, and would not reasonably be expected to have, a Palatin Material Adverse
Effect, (i) no notice, notification, demand, request for information, citation,
summons, complaint or order has been received by, and no investigation, action,
claim, suit, proceeding or review is pending or, to the knowledge of Palatin or
any of its subsidiaries, threatened by any person against, Palatin or any of its
subsidiaries, and no penalty has been assessed against Palatin or any of its
subsidiaries, in each case, with respect to any matters relating to or arising
out of any Environmental Law; (ii) Palatin and its subsidiaries are and have
been in compliance with all Environmental Laws; (iii) there are no liabilities
of or relating to Palatin or any of its subsidiaries relating to or arising out
of any Environmental Law of any kind whatsoever, whether accrued, contingent,
absolute, determined, determinable or otherwise, and there is no existing
condition, situation or set of circumstances which could reasonably be expected
to result in such a liability; and (iv) there has been no environmental
investigation, study, audit, test, review or other analysis conducted of which
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Palatin has knowledge in relation to the current or prior business of Palatin or
any of its subsidiaries or any property or facility now or previously owned,
leased or operated by Palatin or any of its subsidiaries which has not been
delivered to Palatin at least five days prior to the date hereof.
5.26 INSURANCE. There are no insurance policies maintained by or on
behalf of Palatin or any of its subsidiaries in effect on the Effective Date
except as set forth on Section 5.26 of the Palatin Disclosure Schedule.
5.27 TANGIBLE ASSETS. Palatin and its subsidiaries own or lease
Tangible Assets. The Tangible Assets, taken as a whole, are free from material
defects (patent or latent), have been maintained in accordance with normal
industry practice, are in good operating condition and repair (subject to normal
wear and tear), and are suitable for the purposes for which each of them is
presently used. Except as set forth in Section 5.27 of the Palatin Disclosure
Schedule, the Tangible Assets are free and clear of liens, claims of third
parties, security interests, and any other encumbrances whatsoever.
5.28 YEAR 2000 COMPLIANCE. Palatin and each of its subsidiaries have
conducted a commercially reasonable inventory of the Computer Systems used by
Palatin and its subsidiaries in its business, in order to determine which parts
of the Computer Systems are not Year 2000 compliant (as defined in Section 4.29)
and to estimate the cost of rendering such Computer Systems Year 2000 compliant
prior to January 1, 2000 or such earlier date on which the Computer Systems may
hard crash or soft crash. Each project that has or will be implemented by
Palatin with respect to Year 2000 compliance, and the status of each such
project, is listed on Section 5.28 of the Palatin Disclosure Schedule.
5.29 SIGNIFICANT CUSTOMERS, SUPPLIERS, JOINT VENTURE PARTNERS AND
EMPLOYEES. The Palatin SEC Reports or Section 5.29 of the Palatin Disclosure
Schedule sets forth an accurate list of Palatin Significant Customers (as
defined herein), Palatin Significant Suppliers (as defined herein), Palatin
Joint Venture Partners (as defined herein) and Palatin Significant Employees (as
defined herein). Palatin or any of its subsidiaries have no knowledge nor have
they received any notice of any intention by a (a) Palatin Significant Customer
to terminate its business relationship with Palatin or its subsidiaries or to
limit or alter its business relationship with Palatin or its subsidiaries in any
material respect; (b) Palatin Significant Supplier to terminate its business
relationship with Palatin or its subsidiaries or to limit or alter its business
relationship with Palatin or its subsidiaries in any material respect; (c)
Palatin Joint Venture Partner to terminate its business relationship with
Palatin or its subsidiaries or to limit or alter its business relationship with
Palatin or its subsidiaries in any material respect; or (d) Palatin Significant
Employee intending to terminate his employment with Palatin or its subsidiaries.
As used in this Article, (w) "Palatin Significant Customer" means the 10 largest
customers of Palatin and its subsidiaries, taken as a whole, including
distributors of Palatin's products, measured in terms of sales volume in dollars
for the years ended June 30, 1998 and 1999 and for the three month period ending
September 30, 1999, (x) "Palatin Significant Supplier" means any supplier of
Palatin and its subsidiaries from whom Palatin or its subsidiaries has purchased
$50,000 or more of goods during the years ended June 30, 1998 and 1999 or
$50,000 or more goods during the three (3) month period ending September 30,
1999, for use in Palatin's or its subsidiaries' respective businesses; (y)
"Palatin Joint Venture Partner" means any person that has
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entered into an agreement with Palatin or its subsidiaries relating to the
purchase, development, distribution, manufacture and/or sale of any of Palatin's
or its subsidiaries' products or technologies; and (z) "Palatin Significant
Employee" means the Chief Executive Officer, the President, the Senior Director
of Research and Development or any Vice President of Palatin or its subsidiaries
or any Executive Officer as defined in The Exchange Act.
ARTICLE 6
CONDUCT OF BUSINESS PENDING THE MERGER
6.1 CONDUCT OF BUSINESS BY MBI, PALATIN AND MERGER SUBSIDIARY. Prior to
the Effective Date, each party shall, and shall cause its subsidiaries to,
conduct its business in the ordinary course consistent with past practice and
shall use its commercially reasonable efforts to preserve intact its business
organizations and relationships with third parties. Without limiting the
generality of the foregoing, and except with the prior written consent of the
other party, from the date hereof until the Effective Date:
(a) each party shall, and shall cause any of its subsidiaries
to, use their respective commercially reasonable efforts to keep available the
services of their present officers and employees and preserve their
relationships with customers, suppliers and others having business dealings with
them to the end that their goodwill and ongoing businesses shall be unimpaired
at the Effective Date, except such impairment as would not have either an MBI
Material Adverse Effect or Palatin Material Adverse Effect, as the case may be.
Each party shall, and shall cause its subsidiaries to, (A) maintain insurance
coverages and its books, accounts and records in a manner consistent with prior
practices, (B) comply in all material respects with all laws, ordinances and
regulations of Governmental Entities applicable to such party and its
subsidiaries, (C) maintain and keep its properties and equipment in good repair,
working order and condition, ordinary wear and tear excepted, and (D) perform in
all material respects its obligations under all contracts and commitments to
which it is a party or by which it is bound;
(b) neither party shall, nor shall it propose to, nor shall it
permit any of its subsidiaries to, except as required by this Agreement, (A)
sell or pledge or agree to sell or pledge any capital stock owned by it in any
of its subsidiaries, (B) amend its Certificate of Incorporation or Bylaws, (C)
split, combine or reclassify its outstanding capital stock or issue or authorize
or propose the issuance of any other securities in respect of, in lieu of or in
substitution for shares of the capital stock, or declare, set aside or pay any
dividend or other distribution payable in cash, stock or property, or (D)
directly or indirectly redeem, purchase or otherwise acquire or agree to redeem,
purchase or otherwise acquire any shares of its capital stock, except pursuant
to (A) the exercise of rights granted to such party to repurchase shares of its
capital stock from employees upon termination of employment or (B) contractual
obligations arising under agreements existing on the date hereof and disclosed
in the MBI Disclosure Schedule, in the case of MBI, or in the Palatin Disclosure
Schedule, in the case of Palatin;
(c) neither party shall, nor shall it permit any of its
subsidiaries to, (A) except as required by this Agreement, issue, deliver or
sell or agree to issue, deliver or sell any additional shares of, or rights of
any kind to acquire any shares of, its capital stock of any class, any Palatin
Voting Debt or MBI Voting Debt, as the case may be, or any option, rights or
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warrants to acquire, or securities convertible into, shares of capital stock
other than (x) issuances of MBI Common Stock or Palatin Common Stock, as the
case may be, pursuant to the exercise of warrants or stock options outstanding
on the date hereof, or (y) the grant of employee stock options and the issuance
of MBI Common Stock or Palatin Common Stock upon exercise thereof, at fair
market value at the time of grant of the options, to new employees in connection
with the commencement of their employment, in each case in the ordinary course
of business and consistent with past practice, (B) acquire, lease or dispose or
agree to acquire, lease or dispose of any capital assets or any other assets
other than in the ordinary course of business, (C) incur additional indebtedness
or encumber or grant a security interest in any asset or enter into any other
material transaction other than in each case in the ordinary course of business,
(D) acquire or agree to acquire by merging or consolidating with, or by
purchasing a substantial equity interest in, or by any other manner, any
business or any corporation, partnership, association or other business
organization or division thereof, in each case in this clause (D) which are
material, individually or in the aggregate to such party and its subsidiaries
taken as a whole, except that such party may create new wholly owned
subsidiaries in the ordinary course of business, or (E) adopt, enter into, amend
or terminate any contract, agreement, commitment or arrangement with respect to
any of the foregoing other than in each case in the ordinary course of business;
(d) neither party shall, nor shall it permit, any of its
subsidiaries to, except as required to comply with applicable law and except as
provided in Section 7.5, (A) adopt, enter into, terminate or amend any bonus,
profit sharing, compensation, severance, termination, stock option, pension,
retirement, deferred compensation, employment or other MBI Benefit Plan or
Palatin Benefit Plan, as the case may be, agreement, trust, fund or other
arrangement for the benefit or welfare of any director, officer or current or
former employee, (B) increase in any manner the compensation or fringe benefits
of any director, officer or employee (except for normal increases in the
ordinary course of business that are consistent with past practice and that, in
the aggregate, do not result in a material increase in benefits or compensation
expense to such party and its subsidiaries relative to the level in effect prior
to such increase), (C) pay any benefit not provided under any existing plan or
arrangement, (D) grant any awards under any bonus, incentive, performance or
other compensation plan or arrangement or MBI Benefit Plan or Palatin Benefit
Plan (including, without limitation, the grant of stock options, stock
appreciation rights, stock based or stock related awards, performance units or
restricted stock, or the removal of existing restrictions in any benefit plans
or agreements or awards made thereunder) except for (x) payment of year-end
bonuses to employees, (y) making of matching contributions to 401(k) plans and
(z) the grant of employee stock options and the issuance of MBI Common Stock or
Palatin Common Stock, as the case may be, upon exercise thereof, at fair market
value at the time of grant of the options, to new employees in connection with
the commencement of their employment, in each case in the ordinary course of
business and consistent with past practice, (E) take any action to fund or in
any other way secure the payment of compensation or benefits under any employee
plan, agreement, contract or arrangement or MBI Benefit Plan or Palatin Benefit
Plan, as the case may be, other than in the ordinary course of business
consistent with past practice, or (F) adopt, enter into, amend or terminate any
contract, agreement, commitment or arrangement to do any of the foregoing;
(e) neither party shall, nor shall it permit any of its
subsidiaries to, make any investments in non-investment grade securities;
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(f) each party shall use its commercially reasonable efforts
to ensure that neither it nor any of its subsidiaries takes or causes to be
taken any action which would disqualify the Merger as a "reorganization" under
Section 368 of the Code;
(g) each party shall use its commercially reasonable efforts
to refrain from taking, nor shall it permit any of its subsidiaries to take, any
action that would, or reasonably might be expected to, result in any of its
representations and warranties set forth in this Agreement being or becoming
untrue in any material respect, or in any of the conditions to the Merger set
forth in Article 8 not being satisfied, or (unless such action is required by
applicable law) which would adversely affect the ability of any of them to
obtain any of the regulatory approvals required to consummate the Merger; and
(h) MBI shall not, nor shall it permit any of its subsidiaries
to, settle any claim of any other party against MBI, or any of its subsidiaries,
related to any material litigation without the express written consent of
Palatin to such settlement, which consent shall not be unreasonably withheld.
6.2 OBLIGATIONS OF MERGER SUBSIDIARY. Palatin shall take all action
necessary to cause Merger Subsidiary to perform its obligations under this
Agreement and to consummate the Merger on the terms and conditions set forth in
this Agreement.
6.3 NOTICE OF BREACH. Each party shall promptly give written notice to
the other party upon becoming aware of the occurrence or, to its knowledge,
impending or threatened occurrence, of any event which would cause any of its
representations or warranties to be untrue on the Effective Date or cause a
breach of any covenant contained or referenced in this Agreement and will use
its commercially reasonable efforts to prevent or promptly remedy the same. Any
such notification shall not be deemed an amendment of the MBI Disclosure
Schedule or the Palatin Disclosure Schedule.
ARTICLE 7
ADDITIONAL AGREEMENTS
7.1 ACCESS AND INFORMATION. Palatin and MBI and their respective
subsidiaries shall afford to the other and to the other's accountants, counsel
and other representatives full access during normal business hours (and at such
other times as the parties may mutually agree) throughout the period prior to
the Effective Date to all of its properties, books, contracts, commitments,
records and personnel and, during such period, each shall furnish promptly to
the other (i) a copy of each report, schedule and other document filed or
received by it pursuant to the requirements of federal or state securities laws,
and (ii) all other information concerning its business, properties and personnel
as the other may reasonably request. Palatin and MBI shall hold, and shall cause
their respective employees and agents to hold, in confidence all such
information in accordance with the terms of the Confidentiality Agreement, dated
as of July 16, 1999, between Palatin and MBI (the "Confidentiality Agreement").
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7.2 REGISTRATION STATEMENT/PROXY STATEMENT.
(a) As promptly as practicable after the execution of this
Agreement, Palatin and MBI shall prepare and file with the Commission
preliminary proxy materials which shall constitute the preliminary Proxy
Statement and a preliminary prospectus with respect to the Palatin Common Stock
to be issued in connection with the Merger on a confidential basis. As promptly
as practicable after comments are received from the Commission with respect to
such preliminary proxy materials and after the furnishing by MBI and Palatin of
all information required to be contained therein, Palatin and MBI shall file
with the Commission the definitive Proxy Statement and the Registration
Statement and MBI and Palatin shall use their commercially reasonable efforts to
cause the Registration Statement to become effective as soon thereafter as
practicable. On the approval of the other party, which shall not be unreasonably
withheld, either party hereto shall, prior to the mailing of the definitive
Proxy Statement, make such changes to the Proxy Statement as such party in its
discretion deems necessary or advisable to ensure that such party's
representations in Section 4.8 or Section 5.8, as the case may be, are true in
all material respects as of the mailing of the definitive Proxy Statement, and
each of the parties hereto shall, following the mailing of the definitive Proxy
Statement and prior to the date of the MBI Meeting or the Palatin Meeting, as
the case may be, provide such amended or additional proxy solicitation material
to its stockholders as such party in its discretion deems necessary or advisable
to ensure that such party's representations in Section 4.8 or Section 5.8, as
the case may be, are true in all material respects as of the date of the MBI
Meeting or the Palatin Meeting, as the case may be. Palatin will advise MBI,
promptly after it receives notice thereof, of the time when the Registration
Statement has become effective or any supplement or amendment has been filed,
the issuance of any stop order, the suspension of the qualification of the
Palatin Common Stock issuable in connection with the Merger for offering or sale
in any jurisdiction, or any request by the SEC for amendment of the Proxy
Statement or the Registration Statement or comments thereon and responses
thereto or requests by the SEC for additional information and Palatin and MBI
shall use commercially reasonable efforts to promptly resolve any such stop
order, suspension or qualification.
(b) Palatin shall make all necessary filings applicable to it
with respect to the Merger and the Palatin Share Proposal under the Securities
Act and the Exchange Act and the rules and regulations thereunder and under
applicable blue sky or similar securities laws and shall use its commercially
reasonable efforts to obtain required approvals and clearances with respect
thereto. MBI shall have the opportunity to review and approve all such filings,
which approval shall not be unreasonably withheld.
7.3 AFFILIATES.
(a) Prior to the Effective Date, MBI shall cause to be
delivered to Palatin a certificate of an officer of MBI on its behalf
identifying all persons who were, in MBI's view at the time of the MBI Meeting
convened in accordance with Section 3.6(a), "affiliates" of MBI as that term is
used in paragraphs (c) and (d) of Rule 145 under the Securities Act (the "MBI
Affiliates "). Prior to the Effective Date, Palatin shall cause to be delivered
to MBI a certificate of an officer of Palatin on its behalf identifying all
persons who were, in Palatin's view, at the time of the Palatin Meeting convened
in accordance with Section 3.6(b), "affiliates"
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of Palatin as that term is used in paragraphs (c) and (d) of Rule 145 under the
Securities Act (the "Palatin Affiliates," and, together with the MBI Affiliates,
the "Affiliates").
(b) MBI shall use its commercially reasonable efforts to
obtain a written agreement from each person who is identified as an MBI
Affiliate in the certificate referred to in Section 7.3(a), in the form
previously approved by the parties, that he or she will not sell, offer to sell,
or otherwise dispose of any of the Palatin Common Stock issued to him or her
pursuant to the Merger, except in compliance with Rule 145 or other exemption
from the registration requirements of the Securities Act. MBI shall deliver such
written agreements to Palatin on or prior to the Effective Date.
7.4 LISTING FOR QUOTATION. Palatin shall use its commercially
reasonable efforts to list on the American Stock Exchange (the "AMEX"), upon
official notice of issuance, the Palatin Common Stock to be issued to holders of
MBI Common Stock in connection with the Merger, as well as all other Palatin
Common Stock and shares of Palatin Common Stock issued upon exercise of
Outstanding Options.
7.5 EMPLOYEE MATTERS. Palatin shall take all actions necessary or
appropriate to permit the employees of MBI and its subsidiaries on the Effective
Date ("Affected Employees") to participate after the Effective Date in Palatin's
employee benefit programs. Palatin shall give each Affected Employee full credit
for service with MBI for purposes of eligibility to participate in, vesting and
payment of benefits under, amounts of and eligibility for any subsidized benefit
provided under, any Palatin employee benefit plan.
7.6 CERTAIN OFFERS OF EMPLOYMENT. Before the Effective Date, Palatin
shall require as a condition of continued employment of Edward J. Quilty, Carl
Spana, Stephen T. Wills and Charles Putnam that their employment agreements be
amended to include those terms contemplated by Section 8.3(i) hereof, the
failure to require such condition shall be a material breach of this Agreement;
PROVIDED, HOWEVER, in the event that Palatin terminates any such employment
agreement (which termination shall satisfy is obligation under this Section
7.6), Palatin may, in its sole discretion, retain any person terminated pursuant
to this Section 7.6 to perform consulting or other services to Palatin for a
period of up to six (6) months after the Effective Date. Agreements relating to
such consulting or other services may grant, in the aggregate, up to 25,000
shares of Palatin Common Stock as compensation, such shares not to be included
as part of the Diluted Share Total for the purposes of Section 10.1 hereof. All
shares granted hereunder in excess of 25,000 shall be included as part of the
Diluted Share Total for the purposes of Section 10.1 hereof.
7.7 REGISTRATION OF EMPLOYEE SECURITIES. Palatin promptly and in no
event later than twenty (20) days following the Effective Date shall prepare and
file with the Commission such registration statement under the Securities Act as
shall be required to register the shares of Palatin Common Stock issuable to
officers, employees, or consultants of MBI upon exercise of the Outstanding
Options pursuant to the provisions of Section 3.5 (the "Employee Shares
Registration Statement"). Subsequent to the Effective Date, Palatin shall use
its commercially reasonable efforts to (i) cause the Employee Shares
Registration Statement to become effective and (ii) to the extent required by
law, keep the Employee Shares Registration Statement current and effective under
the Securities Act.
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7.8 INDEMNIFICATION.
(a) Palatin agrees that all rights to indemnification existing
in favor of the directors, officers or employees of MBI as provided in MBI's
Certificate of Incorporation, Bylaws or existing indemnification agreements as
in effect as of the date hereof, with respect to matters occurring through the
Effective Date, shall survive the Merger and shall continue in full force and
effect for a period of six (6) years from the Effective Date, and Palatin shall
guaranty the obligations of MBI in respect thereof. MBI represents and warrants
that it has disclosed to Palatin all such indemnification agreements prior to
the date hereof. Palatin agrees to maintain in effect for six (6) years after
the Effective Date the current policies of directors' and officers' liability
insurance maintained by MBI with respect to matters occurring prior to the
Effective Date; PROVIDED, HOWEVER, that (i) Palatin may substitute therefor
policies of at least the same coverage (with carriers comparable to MBI's
existing carriers) containing terms and conditions which are no less
advantageous to the Indemnified Parties and (ii) notwithstanding the foregoing,
Palatin shall not be required to pay an annual premium for such insurance in
excess of one and one-half times the last annual premium paid prior to the date
hereof, but in such case Palatin shall purchase as much coverage as possible for
such amount. Copies of the indemnification insurance policies, policy numbers
486-56-75 (National Union) and YXB001537 (Genesis), which constitute all the
insurance policies currently maintained by MBI in connection with the
indemnification of its directors, officers and employees (the "Indemnification
Policies"), have been provided to Palatin. MBI represents that the current
aggregate annual premium for the Indemnification Policies is $240,000.
(b) In the event that any action, suit, proceeding or
investigation relating hereto or to the transactions contemplated by this
Agreement is commenced, whether before or after the Effective Date, the parties
hereto agree to cooperate and use their respective commercially reasonable
efforts to vigorously defend against and respond thereto.
7.9 ADDITIONAL AGREEMENTS.
(a) Subject to the terms and conditions herein provided and
subject to each party's fiduciary duties as advised by outside counsel in
connection with the receipt by such party of a Business Combination Proposal
that the Board of Directors of such party has reasonably determined will result
in a Superior Proposal, each of the parties hereto agrees to use its
commercially reasonable efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including using its commercially
reasonable efforts to obtain all necessary waivers, consents and approvals, to
effect all necessary registrations and filings (including, but not limited to,
filings with all applicable Governmental Entities) and to lift any injunction or
other legal bar to the Merger (and, in such case, to proceed with the Merger as
expeditiously as possible), subject, however, in the case of the Merger, to the
appropriate vote of the stockholders of Palatin and MBI. Notwithstanding the
foregoing, a party's obligation to use its commercially reasonable efforts
pursuant to this Agreement shall not obligate such party to take any action to
consummate and make effective the transactions contemplated by this Agreement if
such action, either individually or together with another action, would result
in a Palatin Material Adverse Effect or an MBI Material Adverse Effect, as the
case may be.
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(b) In case at any time after the Effective Date any further
action is necessary or desirable to carry out the purposes of this Agreement,
the Surviving Corporation shall take all such necessary action.
7.10 NO SOLICITATION.
(a) Except as contemplated by this Agreement (including as
contemplated in Section 8.3(f)), neither party nor any of its subsidiaries
shall, directly or indirectly, take (nor shall such party authorize or permit
its subsidiaries, officers, directors, employees, representatives, investment
bankers, attorneys, accountants or other agents or affiliates, to take) any
action to (i) encourage, solicit or initiate the submission of any Business
Combination Proposal (as defined below), (ii) enter into any agreement with
respect to any Business Combination Proposal or (iii) participate in any way in
discussions or negotiations with, or furnish any information to, any person in
connection with, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Business Combination Proposal; PROVIDED, HOWEVER, that (i) each party
may participate in discussions or negotiations with or furnish information to
any third party which makes a proposal, which was neither encouraged nor
solicited by such party, of a transaction which the Board of Directors of such
party reasonably believes will result in a Superior Proposal (as defined below)
and (ii) such party may recommend to its stockholders a Business Combination
Proposal which it has reasonably determined will result in a Superior Proposal.
Any actions permitted under, and taken in compliance with this Section 7.10,
shall not be deemed a breach of any other covenant or agreement of such party
contained in this Agreement. For purposes of this Agreement, "Business
Combination Proposal" shall mean, with respect to each party, any tender or
exchange offer, proposal for a merger, consolidation or other business
combination involving such party or any Significant Subsidiary of such party or
any other proposal or offer to enter into an MBI Third Party Business
Combination (as defined in Section 10.3(d)) or a Palatin Third Party Business
Combination (as defined in Section 10.3(d)), as the case may be, and "Superior
Proposal" shall mean, with respect to each party, any bona fide Business
Combination Proposal which the Board of Directors of such party reasonably
determines, based on all relevant considerations applicable in strategic
business combinations, will be more favorable to such party and its stockholders
than the Merger.
(b) In addition to the obligations of each party set forth in
Section 7.10(a), each party shall promptly advise the other of any request for
information or of any Business Combination Proposal, or any inquiry with respect
to or which appears to be intended to or could reasonably be expected to lead to
any Business Combination Proposal, the material terms and conditions of such
request, Business Combination Proposal or inquiry, and the identity of the
person making any such request, Business Combination Proposal or inquiry. Such
party shall keep the other fully informed of the status and details of any such
request, Business Combination Proposal or inquiry, except to the extent that
compliance with this sentence would be contrary to law.
7.11 CERTAIN POST CLOSING EMPLOYMENT MATTERS. Each Relocating Manager
or Relocating Employee shall be offered relocation benefits consistent with
MBI's past policy and practice. Each offer of employment to a potential
Relocating Manager or Relocating Employee shall be made in Palatin's sole
discretion and shall be subject to the approval of the Chief
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Executive Officer of Palatin. In the event that a Relocating Manager is
terminated within two years of the Effective Date, such Relocating Manager shall
be entitled to receive change of control benefits to the extent that such
benefits are provided for in the relevant Relocating Manager's employment
agreement. Any Relocating Employee that is terminated within two years of the
Effective Date, shall be entitled to receive benefits commensurate with those
currently offered terminated employees of MBI. For the purposes of this
Agreement, "Relocating Manager" shall mean a person who is an MBI employee
before the Effective Date, in the position of director or executive director,
vice president, or executive vice president, other than each Executive or
Consulting Employee as defined below, who accepts an offer of employment from
the Surviving Company or Palatin, such employment to begin on or after the
Effective Date, and "Relocating Employee" shall mean a person who is an MBI
employee before the Effective Date, in any position below the level of director,
who accepts an offer of employment from the Surviving Company or Palatin, such
employment to begin on or after the Effective Date.
7.12 AT THE EFFECTIVE DATE. Palatin shall either (i) assume the rights
and obligations of or (ii) guaranty the obligations of the Surviving Corporation
under the Second Amended and Restated License and Distribution Agreement ("ARDA
II") dated as of September 30, 1999 by and between MBI and Mallinckrodt, Inc.
("Mallinckrodt").
ARTICLE 8
CONDITIONS PRECEDENT
8.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment at or prior to the Effective Date of the following conditions,
any one or more of which may be waived in a writing executed by Palatin or MBI,
as the case may be, subject to and in accordance with Section 9.4:
(a) This Agreement and the transactions contemplated hereby
shall have been approved and adopted by the requisite vote of the holders of MBI
Common Stock in accordance with DGCL and The New York Stock Exchange.
(b) This Agreement and the transactions contemplated hereby
shall have been approved by the requisite vote of the holders of Palatin Common
Stock in accordance with DGCL and the Nasdaq SmallCap Market-SM-.
(c) The Registration Statement shall have become effective in
accordance with the provisions of the Securities Act, and no stop order
suspending the effectiveness of the Registration Statement shall be in effect
and no proceedings for such purpose shall be pending or threatened by the
Commissioner.
(d) No preliminary or permanent injunction or other order by
any federal or state court in the United States which prevents the consummation
of the Merger shall have been issued and remain in effect (each party agreeing
to use its commercially reasonable efforts to have any such injunction lifted).
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8.2 CONDITIONS TO OBLIGATION OF PALATIN TO EFFECT THE MERGER. The
obligation of Palatin to effect the Merger shall be subject to the fulfillment
at or prior to the Effective Date of the additional following conditions, unless
waived in writing by Palatin in accordance with Section 9.4:
(a) The number of Dissenting Shares shall not exceed 5% of
outstanding MBI Common Stock.
(b) MBI shall have performed in all material respects its
agreements in this Agreement required to be performed on or prior to the
Effective Date, and MBI's representations and warranties in this Agreement shall
be true in all material respects when made and on and as of the Effective Date
as if made on and as of such date (except to the extent they relate to the date
of this Agreement or any other particular date), and Palatin shall have received
a certificate of the President and Chief Executive Officer or a Vice President
of MBI to that effect.
(c) The Palatin Common Stock issuable in the Merger shall have
been authorized for quotation on an interdealer quotation system or listed on an
exchange upon official notice of issuance.
(d) Palatin shall have received a letter from Arthur Andersen
LLP, Palatin's independent auditors, dated a date within two business days
before the date on which the Registration Statement shall become effective and
addressed to Palatin, in form and substance reasonably satisfactory to MBI and
customary in scope and substance for letters delivered by independent public
accountants in connection with registration statements similar to the
Registration Statement.
(e) Palatin shall have received a written opinion from Graham
& James LLP substantially similar to the opinion provided by Johnson and Colmar
pursuant to Section 8.3(d), to the effect that the Merger will constitute a
"reorganization" within the meaning of Section 368 of the Code.
(f) All permits, consents, authorizations, approvals,
registrations, qualifications, designations and declarations described in
Section 5.4 of Palatin Disclosure Schedule shall have been obtained, and, to the
extent required to be submitted prior to the Effective Date, all filings and
notices described in Section 5.4 of the Palatin Disclosure Schedule shall have
been submitted by Palatin.
(g) Neither MBI's Board of Directors nor any committee thereof
shall have amended, modified, rescinded or repealed the recommendation of the
Board of Directors to the stockholders of MBI to approve the MBI Share Proposal.
(h) Palatin shall have received a written opinion from Johnson
and Colmar, dated the Closing Date, in form and substance reasonably
satisfactory to Palatin.
(i) With respect to the employment agreements (each, an
"Employment Agreement") attached as EXHIBIT B hereto,
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(i) Palatin shall not have received from Howard C.
Dittrich or Joseph Connell (each, an "Executive") or from MBI notice of either
Executive's intent not to honor the terms of their Employment Agreement and
(ii) no event shall have occurred that would render
performance by either Employee of their respective Employment Agreement
impossible.
(j) With respect to the consulting agreement (the "Consulting
Agreement") attached as EXHIBIT C hereto,
(i) Palatin shall not have received from Bobba
Venkatadri (the "Consulting Employee") or from MBI notice of the Consulting
Employee's intent not to honor the terms of the Consulting Agreement and
(ii) no event shall have occurred that would render
performance by the Consulting Employee of the Consulting Agreement impossible.
(k) The terms of the marketing and development agreement
between MBI and Chugai Pharmaceutical Co., Ltd. dated March 31, 1998, shall not
have been terminated, amended, modified or altered in a manner materially
adverse to MBI.
(l) MBI shall have received a written waiver from Mallinckrodt
in form and substance acceptable to Palatin with regard to ARDA II, the
Investment Agreement (the "1988 Agreement") dated as of December 7, 1988, as
amended or supplemented, and the Investment Agreement (the "1995 Agreement")
dated as of September 7, 1995, as amended or supplemented, wherein Mallinckrodt:
(i) acknowledges that the proposed merger does not
violate ARDA II;
(ii) waives its rights, if any with respect to the
following sections of the 1988 and 1995 Investment Agreements, respectively,
solely as they relate to the contemplated merger:
(1) Section 6.01 ("Antidilution Rights") and
(2) Section 6.07 ("Receipt of Offer to
Acquire Control"); and
(iii) addresses other matters mutually agreed upon by
the parties hereto.
(m) MBI shall have taken all necessary actions required of it
in order to ensure the successful transfer of the ownership of its mortgage to
AMRESCO Services, L.P. to Palatin at the Effective Date.
8.3 CONDITIONS TO OBLIGATION OF MBI TO EFFECT THE MERGER. The
obligation of MBI to effect the Merger shall be subject to the fulfillment at or
prior to the Effective Date of the
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additional following conditions, unless waived in writing by MBI in accordance
with Section 9.4:
(a) Palatin shall have performed in all material respects its
agreements in this Agreement required to be performed on or prior to the
Effective Date, and Palatin's representations and warranties in this Agreement
shall be true in all material respects when made and on and as of the Effective
Date as if made on and as of such date (except to the extent they relate to the
date of this Agreement or any other particular date), except as contemplated or
permitted by this Agreement, and MBI shall have received a certificate of the
President and Chief Executive Officer or a Vice President of Palatin to that
effect.
(b) MBI shall have received a letter from Arthur Andersen LLP,
MBI's independent auditors, dated a date within two business days before the
date on which the Registration Statement shall become effective and addressed to
Palatin, in form and substance reasonably satisfactory to Palatin and customary
in scope and substance for letters delivered by independent public accountants
in connection with registration statements similar to the Registration
Statement.
(c) The Palatin Common Stock issuable in the Merger shall have
been authorized for quotation on an interdealer quotation system or listed on an
exchange upon official notice of issuance.
(d) MBI shall have received a written opinion from Johnson and
Colmar, substantially similar to the opinion provided by Graham & James LLP,
pursuant to Section 8.2(c), to the effect that the Merger will constitute a
"reorganization" within the meaning of Section 368 of the Code.
(e) All permits, consents, authorizations, approvals,
registrations, qualifications, designations and declarations described in
Section 4.4 of the MBI Disclosure Schedule shall have been obtained and, to the
extent required to be submitted prior to the Effective Date, all filings and
notices described in Section 4.4 of the MBI Disclosure Schedule shall have been
submitted by MBI.
(f) Neither Palatin's Board of Directors nor any committee
thereof shall have amended, modified, rescinded or repealed the recommendation
of the Board of Directors to the stockholders of Palatin to approve the Palatin
Share Proposal.
(g) MBI shall have received a written opinion from Graham &
James LLP, dated the Closing Date, in form and substance reasonably satisfactory
to MBI.
(h) MBI shall have received a written waiver from Mallinckrodt
with regard to ARDA II, the 1988 Agreement, and the 1995 Agreement, wherein
Mallinckrodt:
(i) acknowledges that the proposed merger does not
violate ARDA II and
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(ii) waives its rights, if any with respect to the
following sections of the 1988 and 1995 Investment Agreements, respectively,
solely as they relate to the contemplated merger:
(1) Section 6.01 ("Antidilution Rights") and
(2) Section 6.07 ("Receipt of Offer to
Acquire Control").
(i) Employment agreements or amendments to existing
employment agreements by and between Palatin and each of the following
individuals shall have been entered into (i) on terms no less favorable than
those in each person's existing employment agreement, except as set forth on
EXHIBIT D hereto and (ii) for employment in a job position substantially similar
as each person's current position; provided, however, this provision is not
intended by the parties to guarantee any individual's appointment as an officer
or director of Palatin:
(i) Edward J. Quilty;
(ii) Carl Spana;
(iii) Stephen T. Wills; and
(iv) Charles Putnam.
ARTICLE 9
TERMINATION, AMENDMENT AND WAIVER
9.1 TERMINATION. This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Date, whether before or after
approval of the matters presented in connection with the Merger by the
stockholders of Palatin or MBI:
(a) by mutual consent of the Board of Directors of Palatin and
the Board of Directors of MBI;
(b) by either Palatin or MBI if the Merger shall not have been
consummated on or before March 31, 2000 (provided the terminating party is not
otherwise in material breach of its representations, warranties, covenants or
agreements under this Agreement);
(c) by Palatin if any of the conditions specified in Sections
8.1 or 8.2 have not been met or waived by Palatin at such time as such condition
is no longer capable of satisfaction, including the failure to obtain any
required approval of its stockholders or the stockholders of MBI at a duly held
meeting of stockholders or at an adjournment thereof (provided that Palatin is
not otherwise in material breach of its representations, warranties, covenants
or agreements under this Agreement);
(d) by MBI if any of the conditions specified in Sections 8.1
or 8.3 have not been met or waived by MBI at such time as such condition is no
longer capable of
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satisfaction, including the failure to obtain any required approval of its
stockholders or the stockholders of Palatin at a duly held meeting of
stockholders or at an adjournment thereof (provided that MBI is not otherwise in
material breach of its representations, warranties covenants or agreements under
this Agreement);
(e) by either Palatin or MBI if there has been a material
breach on the part of the other of any representation, warranty, covenant or
agreement set forth in this Agreement, which breach, has not been cured within
15 business days following receipt by the breaching party of written notice of
such breach;
(f) by either Palatin or MBI upon written notice to the other
party if any Governmental Entity of competent jurisdiction shall have issued a
final permanent order enjoining or otherwise prohibiting the consummation of the
transactions contemplated by this Agreement, and in any such case the time for
appeal or petition for reconsideration of such order shall have expired without
such appeal or petition being granted;
(g) by either Palatin or MBI if the Board of Directors of such
party reasonably determines that a Business Combination Proposal will result in
a Superior Proposal; provided, however, that termination of this Agreement under
this Section 9.1 (g) shall not be effective unless and until (i) simultaneously
with such termination the terminating party enters into a definitive agreement
to effect the Business Combination Proposal and (ii) the terminating party has
made payment in full of the fee required in Section 10.3(d);
(h) notwithstanding anything contained in this Section 9.1, by
Palatin if the Board of Directors of MBI shall have failed to recommend or has
withdrawn or modified or changed in a manner adverse to Palatin its approval of
the Merger or its recommendation to the stockholders of MBI to approve the MBI
Share Proposal; or
(i) notwithstanding anything contained in this Section 9.1, by
MBI if the Board of Directors of Palatin shall have failed to recommend or has
withdrawn or modified or changed in a manner adverse to MBI its approval of the
Merger or its recommendation to the stockholders of Palatin to approve the
Palatin Share Proposal
9.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either Palatin or MBI as provided in Section 9.1, this Agreement
shall forthwith become void and (except for termination of this Agreement
pursuant to Section 9.1(e) or except as otherwise provided in Section 10.3),
there shall be no liability on the part of either Palatin or MBI or their
respective officers or directors; provided that Sections 4.14 and 5.14, the last
sentence of Section 7.1, this Section 9.2, and Sections 10.3, 10.6 and 10.10
shall survive the termination.
9.3 AMENDMENT. This Agreement may be amended by the parties hereto, by
or pursuant to action taken by their respective Boards of Directors, at any time
before or after approval hereof by the stockholders of Palatin and MBI; but
after such approval no amendment shall be made which changes the ratios at which
MBI Common Stock is to be converted into Palatin Common Stock as provided in
Section 3.1, or which in any way materially adversely affects the rights of such
stockholders, without the further approval of such stockholders. This
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Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
9.4 WAIVER. At any time prior to the Effective Date, the parties
hereto, by or pursuant to action taken by their respective Boards of Directors,
may (i) extend the time for the performance of any of the obligations or other
acts of the other parties hereto, (ii) waive any inaccuracies in the
representations and warranties of any other party contained herein or in any
documents delivered pursuant hereto by any other party, and (iii) waive
compliance with any of the agreements or conditions contained herein; provided,
however, that no such waiver shall materially adversely affect the rights of the
stockholders of Palatin or MBI, as the case may be. Any agreement on the part of
a party hereto to any such extension or waiver shall be valid if set forth in an
instrument in writing signed on behalf of such party.
ARTICLE 10
GENERAL PROVISIONS
10.1 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) Except with respect to Palatin's representation as to the
Diluted Share Total set forth in Section 5.2(b) hereof, which shall survive for
one (1) year after the Effective Date, all representations and warranties set
forth in this Agreement shall terminate at the earlier of (i) the Effective Date
or (ii) termination of this Agreement in accordance with Article 9. All
covenants and agreements set forth in this Agreement shall survive the Effective
Date in accordance with their terms.
(b) In the event of an understatement by Palatin of the
Diluted Share Total by more than 1%, Palatin shall distribute pro-rata to all
MBI stockholders who received Certificates for Palatin Common Stock under
Section 3.2 hereof the number of shares of Palatin Common Stock to which they
would have entitled hereunder had the Diluted Share Total been accurate. The
remedy contained in this subsection shall be the sole and exclusive remedy
available in the event of a material breach by Palatin of its representations
contained in Section 5.2(b) hereof.
10.2 NOTICES. All notices or other communications under this Agreement
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by delivery in person, by telecopy, cable, telegram, telex
or other standard form of telecommunications, or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
If to Palatin:
Palatin Technologies, Inc.
214 Carnegie Center, Suite 100
Princeton, New Jersey 08540
Attention: Mr. Edward J. Quilty
President and Chief Executive Officer
Telecopier: (609) 520-0621
49
<PAGE>
with a copy to:
Graham & James LLP
885 Third Avenue
21st Floor
New York, New York 10022
Attention: Irwin M. Rosenthal, Esq.
Telecopier: (212) 688-2449
If to MBI:
Molecular Biosystems, Inc.
10030 Barnes Canyon Road
San Diego, California 92121
Attention: Mr. Bobba Venkatadri
President and Chief Executive Officer
Telecopier: (858) 812-7591
with a copy to:
Johnson and Colmar
300 South Wacker Drive
Suite 1000
Chicago, Illinois 60606
Attention: Craig P. Colmar, Esq.
Telecopier: (312) 922-9283
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section 10.2.
10.3 EXPENSES; TERMINATION FEES.
(a) If (i) the Merger is consummated or (ii) this Agreement is
terminated in accordance with Section 9.1(a), 9.1(b), 9.1(c), 9.1(d) or 9.1(f),
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expense, except that expenses (other than legal and accounting expenses)
incurred in connection with the preparation, filing, printing and mailing of the
preliminary and definitive Proxy Statement and the Registration Statement (not
including investment banking fees) shall be shared equally by Palatin and MBI.
If this Agreement is terminated in accordance with Section 9.1(e), 9.1(g),
9.1(h), or 9.1(i), all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be promptly paid within
five business days after receipt of a written request therefor, in same day
funds, to the other party hereto by the breaching party (in the case of Section
9.1(e)), by the terminating party (in the case of Section 9.1(g)), and by the
party having altered its recommendation (in the case of Sections 9.1(h) and
9.1(i)).
(b) If this Agreement is terminated as a result of a material
breach of Section 7.10, the party that causes the breach shall pay to the other
party within five business
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days after receipt of a written request therefor, in same day funds, One Million
Dollars ($1,000,000) (the "Termination Fee").
(c) If this Agreement is terminated as provided in Section
9.1(e), the party that causes the breach shall pay to the other party within
five business days after receipt of a written request therefor, in same day
funds, the Termination Fee.
(d) If (i) MBI has had contact before the date hereof with any
person or any agent for such person (such person together with any affiliate of
such person, an "MBI Offeror") or has contact after the date hereof and prior to
the Effective Date with an MBI Offeror concerning a Business Combination
Proposal with the MBI Offeror (regardless of whether such Business Combination
Proposal was encouraged or solicited by MBI in violation of Section 7.10 hereof)
and (ii) within one year after the termination of this Agreement, either (1) MBI
or any MBI subsidiary enters into an agreement with such MBI Offeror which
provides for (a) transfer or issuance of securities representing 40% or more of
the equity or voting interests in MBI, (b) a merger, consolidation,
recapitalization or other transaction resulting in the issuance of cash or
securities of such MBI Offeror (excluding any reincorporation or a holding
company merger that results in the MBI stockholders owning all of the equity
interests in the surviving corporation) to MBI stockholders in exchange for 40%
or more of the equity or voting interests in MBI, or (c) transfer of assets,
securities or ownership interests representing 40% or more of the consolidated
assets or earning power of MBI, or (2) the MBI Offeror commences a tender offer
that results in the acquisition by the person making the tender offer of a
majority of the MBI Common Stock (the transactions described in clauses (1) and
(2) above, an "MBI Third Party Business Combination"), then MBI shall pay to
Palatin the Termination Fee.
(e) If (i) Palatin has had contact before the date hereof with
any person or any agent for such person (such person together with any affiliate
of such person, an "Palatin Offeror") or has contact after the date hereof and
prior to the Effective Date with a Palatin Offeror concerning a Business
Combination Proposal with the Palatin Offeror (regardless of whether such
Business Combination Proposal was encouraged or solicited by Palatin in
violation of Section 7.10 hereof) and (ii) within one year after the termination
of this Agreement, either (1) Palatin or any Palatin subsidiary enters into an
agreement with such Palatin Offeror which provides for (a) transfer or issuance
of securities representing 40% or more of the equity or voting interests in
Palatin, (b) a merger, consolidation, recapitalization or other transaction
resulting in the issuance of cash or securities of such Palatin Offeror
(excluding any reincorporation or a holding company merger that results in the
Palatin stockholders owning all of the equity interests in the surviving
corporation) to Palatin stockholders in exchange for 40% or more of the equity
or voting interests in Palatin, or (c) transfer of assets, securities or
ownership interests representing 40% or more of the consolidated assets or
earning power of Palatin, or (2) the Palatin Offeror commences a tender offer
that results in the acquisition by the person making the tender offer of a
majority of the Palatin Common Stock (the transactions described in clauses (1)
and (2) above, a "Palatin Third Party Business Combination"), then Palatin shall
pay to MBI the Termination Fee.
(f) In no event shall any party hereto be required by the
terms of this Agreement to pay more than one Termination Fee.
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10.4 PUBLICITY. No party shall issue any press release or make any
public announcement relating to the subject matter of this Agreement without the
prior written approval of the other parties; PROVIDED, HOWEVER, that any party
may make any public disclosure it believes in good faith is required by
applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the disclosing party will use its best
efforts to advise the other party prior to making the disclosure). The
commencement of litigation relating to this Agreement or the transactions
contemplated hereby or any proceedings in connection therewith shall not be
deemed a violation of this Section 10.4.
10.5 INTERPRETATION. The headings and captions in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.6 NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any person other than the parties hereto, their
respective successors and permitted assigns; PROVIDED, HOWEVER, that the
provisions of Sections 7.5, 7.8 and 7.11 hereof are intended for the benefit of
those persons specified therein.
10.7 ENTIRE AGREEMENT. This Agreement (including the documents referred
to herein) constitutes the entire agreement among the parties and supersedes any
prior understandings, agreements, or representations by or among the parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
10.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
10.9 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of the other parties hereto.
10.10 GOVERNING LAW; JURISDICTION. This Agreement (including all
documents and instruments referred to herein) shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware (without giving effect to the provisions thereof relating to conflicts
of law). Any suit, action or proceeding seeking to enforce any provision of, or
based on any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby may be brought in any federal or state court
located in the State of Delaware, and each of the parties hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extend permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in Section 10.01
shall be deemed effective service of process on such party.
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10.11 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
10.12 CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context otherwise requires. The
word "INCLUDING" shall mean including without limitation.
10.13 INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and
Schedules (including, among others, the MBI Disclosure Schedule and the Palatin
Disclosure Schedule) identified in this Agreement are incorporated herein by
reference and made a part hereof.
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In Witness Whereof, Palatin and MBI have caused this Agreement to be
signed by their respective duly authorized officers.
PALATIN TECHNOLOGIES, INC.
By:____________________________________________
Name: Edward J. Quilty
Title: President and Chief Executive Officer
EVERGREEN MERGER CORPORATION
By:____________________________________________
Name: Edward J. Quilty
Title: President
MOLECULAR BIOSYSTEMS, INC.
By:____________________________________________
Name: Bobba Venkatadri
Title: President and Chief Executive Officer
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EXHIBIT A
CERTIFICATE OF MERGER
<PAGE>
EXHIBIT B
EMPLOYMENT AGREEMENTS OF DITTRICH AND CONNELL
<PAGE>
EXHIBIT C
VENKATADRI CONSULTING AGREEMENT
<PAGE>
EXHIBIT D
MATERIAL TERMS OF CERTAIN AMENDMENTS TO PALATIN EMPLOYMENT
AGREEMENTS
<PAGE>
EXHIBIT A TO
THE MERGER AGREEMENT
CERTIFICATE OF MERGER
MERGING
EVERGREEN MERGER CORPORATION
WITH AND INTO
MOLECULAR BIOSYSTEMS, INC.
Pursuant to Section 251 of the
Delaware General Corporation Law
The undersigned, being the President of Molecular Biosystems,
Inc., a corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware ("Molecular"), DOES HEREBY CERTIFY AS
FOLLOWS:
FIRST: That the name of and the state of incorporation of each
of the constituent corporations in the merger are as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Evergreen Merger Corporation Delaware
Molecular Biosystems, Inc. Delaware
</TABLE>
SECOND: That an Agreement and Plan of Merger dated as of
November __, 1999 (the "MERGER AGREEMENT") between Evergreen Merger Corporation
("Evergreen") and Molecular has been approved, adopted, certified, executed and
acknowledged by each of the constituent corporations in accordance with Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That Molecular shall be the surviving corporation (the
"SURVIVING CORPORATION").
FOURTH: That an executed copy of the Merger Agreement is on
file at the principal place of business of the Surviving Corporation at the
following address:
214 Carnegie Center - Suite 100
Princeton, New Jersey 08540
<PAGE>
FIFTH:That a copy of the Merger Agreement will be furnished by
the Surviving Corporation, on request, and without cost, to any stockholder of
any constituent corporation.
IN WITNESS WHEREOF, Molecular has caused this Certificate of
Merger to be signed by _____________________, its [Title of Officer], and
attested by _________________, its [Assistant] Secretary, this _______ day of
_______________ , 1999.
MOLECULAR BIOSYSTEMS, INC.
By: ___________________________________
Title:
ATTEST:
________________________________
[Assistant] Secretary
2
<PAGE>
<PAGE>
EMPLOYMENT AGREEMENT
This is an EMPLOYMENT AGREEMENT ("Agreement") between
Joseph Connell, an individual ("Employee"), and PALATIN TECHNOLOGIES, INC., a
Delaware corporation ("the Company").
1. EFFECTIVE DATE. This Agreement is contingent on the closing
of Molecular Biosystems, Inc.'s merger with, or acquisition by, Palatin
Technologies, Inc. on or before March 31, 2000, and is effective on the closing
date of such merger or acquisition (the "Effective Date").
2. EMPLOYMENT.
a. POSITION. The Company agrees to employ Employee as its
Vice President of Marketing (the "Employment").
b. OBLIGATIONS TO COMPANY. Employee shall diligently, and
to the best of his ability, perform all such duties incident to his position and
other duties as may be assigned by the Company's President and Chief Executive
Officer. The Company shall be entitled to all of the benefits and profits
arising from or incident to the work, services and advice rendered by the
Employee relating to the work performed for the Company. The Employee shall make
all information available to the Company that relates to the Company's business
of which he has any knowledge and shall not use any such information or the
benefits of any such information for his personal profit or that of any third
party. The Employee agrees to use his best efforts to promote the interests of
the Company including, where appropriate, the publication of articles in medical
and scientific journals and the participation in medical, scientific, and
marketing seminars and symposiums relating to the business and affairs of the
Company and/or his efforts performed for and on behalf of the Company.
c. TIME TO BE DEVOTED TO EMPLOYMENT. Employee shall devote
his full time and energy to the business of the Company and shall not be engaged
in any competitive business activity without the express written consent of the
Company. Employee hereby represents that he is not a party to any agreement
which would be an impediment to entering into this Employment Agreement and that
he is permitted to enter into this Employment Agreement and perform the
obligations hereunder.
3. COMPENSATION AND BENEFITS.
a. ANNUAL SALARY. In consideration of and as compensation
for the services agreed to be performed by Employee hereunder, the Company
agrees to pay Employee an annualized Base Salary not less than Employee's annual
Base Salary paid by Molecular Biosystems, Inc immediately prior to the Effective
Date of the Agreement. The Company also agrees Employee's annual salary will be
increased immediately following the Effective Date of this Agreement
commensurate with market data regarding similarly situated employees.
Thereafter, Employee's annual salary is subject to being increased as part of
the Company's annual salary review process.
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b. BONUS. The Employee shall be eligible to be considered
for an annual bonus based on objective or subjective criteria approved by the
Company's Board of Directors (the "Board"). Such bonus shall be contingent upon
Employee's continued employment through the end of the bonus period and Employee
shall have no right to any pro rata portion of the bonus. The determinations of
the President and CEO with respect to such bonus shall be final and binding.
c. OPTION GRANT. Employee shall be eligible for stock
option awards at the discretion of the President and Chief Executive Officer.
Vesting and exercise periods would be in accordance with the Company's stock
option plan.
(1) EFFECT OF CHANGE OF CONTROL. In the event of a
Change of Control (whether or not followed by termination of Employee's
employment), all stock options under any Company stock option plan which
Employee holds at the time of such Change of Control shall become fully "vested"
(i.e., immediately exercisable).
d. PARTICIPATION IN BENEFIT PLANS. Employee shall be
entitled to participate in any vacation or other benefit plan, to the extent
eligible, that is generally available to the other employees of the Company at
the same level as Employee. The Company reserves the right to amend, modify or
terminate any employee benefits at any time for any reason.
e. REIMBURSEMENT OF EXPENSES. The Company shall reimburse
Employee for all reasonable business expenses incurred by Employee on behalf of
the Company provided that: (i) such reasonable expenses are ordinary and
necessary business expenses incurred on behalf of the Company, and (ii) Employee
provides the Company with itemized accounts, receipts and other documentation
for such reasonable expenses as are reasonably required by the Company.
4. RELOCATION BENEFITS. The Company will provide the Employee
with full relocation assistance consistent with the past executive relocation
practice of Molecular Biosystems, Inc., if the Company requires Employee to
relocate his regular place of employment more than 35 miles from his current
residence in California. Relocation benefits would include, but are not limited
to, the payment of all closing costs on the sale of Employee's current home and
purchase of a new home in new location. The Company also will pay for the
packing and unpacking of his household goods, relocation of his household goods,
the transport of a maximum of two (2) automobiles (or reimbursement for miles
traveled between old and new location for no more than two (2) automobiles at
prevailing IRS rates), and two (2) house-hunting trips for Employee and his
spouse, if applicable. The Company also will pay the reasonable costs of
Employee's temporary housing and living expenses until such time as the Employee
permanently relocates. The Employee shall present appropriate supporting
documentation of such costs in accordance with the Company's generally
applicable policies.
5. DEFINITIONS. The following definitions shall apply with
respect to this agreement.
a. BASE SALARY means the Employee's annual salary; it shall
not include overtime pay, commissions or any other benefits and special
allowances for which the
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Employee is eligible (e.g., bonuses). If Employee's annual salary is adjusted at
any time following the Effective Date of this Agreement, the adjusted annual
salary would then represent Employee's Base Salary. "Weekly Salary" shall mean
the Base Salary divided by fifty-two. "Monthly Salary" shall mean Base Salary
divided by 12.
b. CHANGE OF CONTROL means the occurrence of any of the
following events:
(1) any "person," as such term is used in Sections 13
(d) and 14 (d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than the company, any trustee or other fiduciary holding securities
under an employee benefit plan of the Company, or any corporation owned directly
or indirectly by the stockholders of the Company in substantially the same
proportion as their ownership of stock of the Company) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 40% or more of the
combined voting power of the company's then outstanding securities; or
(2) individuals who, as of the Commencement Date,
constitute the board (as of the Commencement Date, the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the Commencement Date whose election,
or nomination for election by the Company's stockholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board
(other than an election or nomination of an individual whose initial assumption
of office is in connection with an actual or threatened election contest
relating to the election of the directors of the Company, as such terms are used
in Rule 14a-11 of Regulation 14A under the Exchange Act) shall be, for purposes
of this Agreement, considered as though such person were a member of the
Incumbent Board; or
(3) the stockholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than
(A) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 80% of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation or
(B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 50% of the combined voting
power of the Company's then outstanding securities; or
(4) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the company of all or substantially all of the Company's assets.
c. CONSTRUCTIVE TERMINATION shall occur if Employee resigns
his employment within thirty (30) days of the occurrence of any of the following
events: (i) any
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reduction in the Base Salary of the Employee; (ii) a relocation (or demand for
relocation) of Employee's place of employment to a location more than
thirty-five (35) miles from Employee's current place of employment without
Employee's written consent; or (iii) a significant or material reduction in
Employee's job duties or level of responsibility.
d. TERMINATION FOR CAUSE means a termination of Employee's
employment by the Company due to the Employee's:
(1) Misconduct that has a significant material
adverse effect on the Company's operations, prospects, reputation or business
and as communicated to Employee in writing prior to termination;
(2) Conviction of a felony or any crime involving
moral turpitude; or
(3) Act of fraud against, or theft of property
belonging to, the Company.
e. TERMINATION WITHOUT CAUSE means a termination of
Employee's employment by the Company for any reason other than those specified
in subsections 5(b)(1) through (3) above.
f. DISABILITY means that as a result of any physical or
mental injury or disability, Employee is unable to perform the essential
functions of his job, with or without reasonable accommodation. A notice will be
issued when the Company has reasonably determined that Employee has become
unable to perform substantially his services and duties hereunder with or
without reasonable accommodation because of any physical or mental injury or
disability, and that it is reasonably likely that he will not be able to resume
substantially performing his services and duties on substantially the terms and
conditions as set forth in this Employment Agreement.
6. EMPLOYMENT TERM.
a. EMPLOYMENT TERM. The "Employment Term" means the period
commencing on the Effective Date and terminating on the earlier of three (3)
years from the Effective Date or as set forth in Section 6(c).
b. NOTICE OF RENEWAL. No less than sixty (60) days prior to
the natural expiration of the initial Employment Term of this Employment
Agreement, the Company shall give Employee written notice of whether the Company
will be seeking an extension of Employee's services beyond the initial
Employment Term.
c. TERMINATION OF EMPLOYMENT. The Company may terminate the
Employee's Employment at any time and for any reason (or no reason), and with
"Cause" or "Without Cause," by giving the Employee notice in writing, subject to
the severance payment provisions set forth in Section 7. The Employee may
terminate his Employment by giving the Company 14 days' advance notice in
writing. The Employee's Employment shall terminate
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automatically in the event of his death or on the date the Company provides
notice of its reasonable determination of Employee's Disability.
d. TERMINATION OF AGREEMENT. This Agreement shall terminate
when all obligations of the parties hereunder have been satisfied. The
termination of this Agreement shall not limit or otherwise affect any of the
Employee's obligations under Sections 9 through 17 of this Agreement.
7. TERMINATION BENEFITS.
a. AGREEMENT SUPERSEDES PREVIOUS SEVERANCE PROVISIONS. The
provisions of this Section 7 supersede the severance payment and severance
benefits provisions set forth in paragraphs 14 and 16 of Employee's January 21,
1999 Employment Agreement with Molecular BioSystems, Inc., but this Section 7
does NOT supersede or limit the effect of paragraph 15 of that agreement which
provides as follows:
ACCELERATION OF STOCK OPTIONS IN THE EVENT OF A CHANGE OF
CONTROL. In the event of a Change of Control (whether or not
followed by termination of Employee's employment), all stock
options under any Company [Molecular Biosystems, Inc.] stock
option plan which Employee holds at the time of such Change of
Control shall become fully "vested" (i.e., immediately
exercisable). The Company [Molecular Biosystems, Inc.] shall
also extend the period of exercisability of those stock
options to the maximum of four years, or the natural
expiration of the stock options, whichever is earlier.
b. EFFECT OF TERMINATION FOR "CAUSE," DEATH OR DISABILITY.
During the Employment Term, upon (i) the termination of Employee's Employment
for "Cause;" or (ii) Employee's death or Disability pursuant to subsection 5(d)
of this Agreement, the Company shall pay (i) Employee's Base Salary through the
effective date of the termination of Employee's Employment; (ii) all of
Employee's accrued but unused vacation time; and (iii) Employee's group health
coverage, including e.g., eligible medical, dental and vision insurance, through
the last day of the calendar month during which the termination occurs (group
health coverage after such date being governed by COBRA), but Employee otherwise
shall not be entitled to any severance benefits or severance payments under any
provision of this Agreement or under any other plan.
c. EFFECT OF EMPLOYEE'S RESIGNATION PRIOR TO ONE YEAR
ANNIVERSARY. During the Employment Term, in the event that Employee resigns or
voluntary departs the Company for any reason (except in the event of
Constructive Termination) PRIOR to the one (1) year anniversary of the Effective
Date the Company shall pay: (i) Employee's Base Salary through the effective
date of the termination of Employee's Employment; (ii) all of Employee's accrued
but unused vacation time; and (iii) Employee's group health coverage, including
e.g., eligible medical, dental and vision insurance, through the last day of the
calendar month during which the termination occurs (group health coverage after
such date being governed by
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COBRA), but Employee otherwise shall not be entitled to any severance benefits
or severance payments under any provision of this Agreement or under any other
plan.
d. EFFECT OF TERMINATION WITHOUT CAUSE, CONSTRUCTIVE
TERMINATION, OR EMPLOYEE'S RESIGNATION AFTER ONE YEAR ANNIVERSARY. During the
Employment Term, in the event that (i) the Company terminates Employee's
employment with the Company "Without Cause," (ii) there is a Constructive
Termination, or (iii) Employee resigns or voluntary departs the Company for any
reason on or after the one (1) year anniversary of the Effective Date:
(1) The Company shall make the following payments to
Employee:
(A) ACCRUED SALARY AND BENEFITS. The Company
shall pay Employee's Base Salary through the effective date of termination of
Employee's Employment. In addition to the Severance Payments payable to an
eligible employee as described below, such employee shall receive the following:
(i) payment for accrued but unused vacation time; and (ii) group health
coverage, including e.g., eligible medical, dental and vision insurance, through
the last day of the calendar month during which the termination occurs (group
health coverage after such date being governed by COBRA.)
(B) SEVERANCE PAYMENTS. The Company shall pay
to Employee an amount equal to 1.5 times the sum of the following: (a)
Employee's annualized Base Salary in effect immediately prior to the termination
of employment, plus (b) the higher of (i) Employee's annual target bonus as
determined under the Company's incentive compensation plan or (ii) an average of
the last three actual bonuses accorded to Employee. If the Company has not
adopted an incentive compensation plan as referred to in the foregoing sentence,
then the amount determined under (ii) shall govern.
(C) MANNER OF PAYMENT. Severance Payments may
be paid in accordance with regular payroll periods, in a single lump sum
payment, or any combination thereof, as deemed appropriate by the Company. Taxes
and other appropriate deductions will be withheld; however, 401k contributions
will not be allowed.
(2) The Company shall provide the following benefits
to Employee:
(A) COBRA PREMIUMS. An eligible Employee's
existing coverage under the Company's group health plan (and, if applicable, the
existing group health coverage for eligible dependents) will end on the last day
of the month in which the eligible Employee's employment terminates. The
eligible Employee and his or her eligible dependents may then be eligible to
elect temporary continuation coverage under the Company's group health plan in
accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA"). The eligible Employee (and, if applicable, his or her
eligible dependents) will be provided with a COBRA election form and notice
which describe his or her rights to continuation coverage under COBRA. If an
eligible Employee elects COBRA continuation coverage, then the Company will pay
for COBRA coverage (such payments shall not include COBRA coverage with respect
to the Company's Section 125 health care
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reimbursement plan) for eighteen (18) months. After such period of Company-paid
coverage, the eligible Employee (and, if applicable, his or her eligible
dependents) may continue COBRA coverage at his or her own expense in accordance
with COBRA. No provision of this agreement will affect the continuation coverage
rules under COBRA. Therefore, the period during which the eligible Employee must
elect to continue the Company's group health plan coverage under COBRA, the
length of time during which COBRA coverage will be made available to the
eligible Employee, and all the eligible Employee's other rights and obligations
under COBRA will be applied in the same manner that such rules would apply in
the absence of this Agreement. In the event, however, an Employee becomes
eligible for benefits under another plan prior to the expiration of the period
in which the Company is paying benefit premiums, the Company shall no longer be
obligated to pay such benefit premiums. The Employee is required to notify the
Company of eligibility for benefits under another plan and is expected to enroll
in the new group plan at the first eligible opportunity unless Employee chooses,
at Employee's sole expense, to continue COBRA benefits through the Company. If
Employee fails to notify the Company of Employee's eligibility for alternative
benefits, the Company shall have the right to discontinue payment of COBRA
premiums upon thirty (30) days notice to Employee. In no event shall a cash
payment be made to Employee in lieu of the payment of COBRA premiums. The
payment of COBRA premiums by the Company shall not extend the maximum eligible
COBRA coverage period.
(B) OUTPLACEMENT SERVICES. The Company will
make available to Employee, upon his/her request, outplacement services provided
by a reputable outplacement counselor selected by the Company for a period of
six months following termination. The Company will assume the cost of all such
outplacement services. In no event will a cash payment be made in lieu of
outplacement benefits.
8. SEVERANCE LIMITATIONS. The Severance Payments referred to
herein shall be reduced as necessary so that the present value, as determined in
accordance Section 280G(d)(4) of the Internal Revenue Code, of the sum of (i)
the Severance Payments and (ii) all other payments, if any, that must be taken
into account for purposes of computation under Section 280G(b)(2)(A)(ii) of the
Internal Revenue Code in respect of Employee does not exceed 2.99 times
Employee's base amount, as "base amount" is defined in Section 280G(b)(3) of the
Internal Revenue Code.
9. DISCLOSURES. Employee shall promptly disclose in writing to
the officials designated by the Company to receive such disclosures, complete
information concerning each and every invention, discovery, improvement, device,
design, apparatus, practice, process, method or product (hereinafter referred to
as "Inventions"), whether Employee considers them patentable or not, made,
developed, perfected, devised, conceived or reduced to practice by Employee,
either solely or in collaboration with others, during the period of Employee's
employment by the Company, and up to and including a period of twelve (12)
months after termination of employment, whether or not during regular working
hours, relating either directly or indirectly to the business, products,
practices or techniques of the Company or to the Company's actual or
demonstrably anticipated research or development, or resulting from any work
performed by Employee for the Company or with the equipment, supplies,
facilities or confidential information of the Company.
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10. CONFIDENTIALITY. Employee recognizes that his/her
employment with the Company will involve contact with information of substantial
value to the Company, which is not generally known in the trade and which gives
the Company an advantage over its competitors who do not know or use it,
including but not limited to techniques, designs, drawings, processes,
inventions, developments, equipment, prototypes, sales and customer information,
and business and financial information, relating to the business, products,
practices or techniques of the Company (hereinafter referred to as "Confidential
Information"). Employee shall at all times regard and preserve as confidential
such Confidential Information obtained by Employee from whatever source and
shall not, either during Employee's employment or thereafter, publish or
disclose any part of such Confidential Information in any manner, or use the
same except on behalf of the Company, without the prior written consent of the
Company. Further, Employee shall, during his/her employment and thereafter,
refrain from any acts or omissions that would reduce the value of such
Confidential Information to the Company.
11. ASSIGNMENT OF RIGHTS. Employee hereby agrees that any
Inventions made, developed, perfected, devised, conceived or reduced to practice
by Employee during the period of his/her employment by the Company, and any
other Inventions made, developed, perfected, devised, conceived or reduced to
practice by Employee during said period of twelve (12) months after termination
of his/her employment if based upon the Confidential Information of the Company,
relating either directly or indirectly to the business, products, practices or
techniques of the Company or to the Company's actual or demonstrably anticipated
research or development, or resulting from any work performed by Employee for
the Company or with the equipment, supplies, facilities or Confidential
Information of the Company, are the sole property of the Company, and hereby
assigns and agrees to assign to the Company, its successors and assigns, all of
my right, title and interest in and to said Inventions, and any patent
applications or Letters Patent thereon.
NOTIFICATION
THIS AGREEMENT DOES NOT APPLY TO AN INVENTION FOR WHICH NO
EQUIPMENT, SUPPLIES, FACILITY, OR TRADE SECRET INFORMATION OF THE COMPANY WAS
USED AND WHICH WAS DEVELOPED ENTIRELY ON EMPLOYEE'S OWN TIME, AND (A) WHICH DOES
NOT RELATE (1) TO THE BUSINESS OF THE COMPANY OR (2) TO THE COMPANY'S ACTUAL OR
DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT, OR (B) WHICH DOES NOT RESULT
FROM ANY WORK PERFORMED BY EMPLOYEE FOR THE COMPANY, AS DEFINED AND PROVIDED BY
SECTION 2870 OF THE CALIFORNIA LABOR CODE.
12. COVENANT OF COOPERATION. Employee shall, at any time
during employment or a period of twelve (12) months thereafter, upon request and
without further compensation therefor, but with all reasonable expenses incurred
by Employee to be reimbursed, do all lawful acts, including but not limited to
the execution of papers and oaths, the giving of testimony, and the obtaining of
evidence that in the opinion of the Company, its successors or assigns, may be
necessary or desirable for obtaining, sustaining, reissuing or enforcing Letters
Patent in the United States and throughout the world for said Inventions, and
for perfecting, recording or maintaining the title of the Company, its
successors and assigns, to said Inventions and to any patent applications made
and any Letters Patent granted for said Inventions in the United States and
throughout the world.
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13. PATENT ENFORCEMENT. The Company shall have the sole
discretion whether to obtain, maintain, modify or enforce any domestic or
foreign patent for said Inventions assigned to the Company pursuant to this
Agreement. The Company is free to enter into any licensing or assignment
agreement with any third party or to use whatever means it deems best to
develop, promote or market said Inventions assigned to the Company pursuant to
this Agreement or any domestic or foreign patent thereof.
14. CLAIMS BY THIRD PARTY. As to any Inventions which were
made, developed, perfected, devised, conceived or reduced to practice by
Employee during the period of his/her employment by the Company, and up to and
including a period of twelve (12) months after termination of his/her
employment, but which are claimed for any reason to belong to an entity or
person other than the Company, Employee will promptly disclose the same in
writing to the Company and shall not disclose the same to others if the Company,
within twenty (20) days thereafter, shall claim ownership of such Inventions
under the terms of this Agreement.
15. RECORD KEEPING. Employee shall keep complete, accurate and
authentic accounts, notes, data and records of any and all of said Inventions in
the manner and form requested by the Company. Such accounts, notes, data and
records, including all copies thereof, shall be the property of the Company, and
upon its request, Employee will promptly surrender the same to it, or if not
previously surrendered, Employee will promptly surrender the same to the Company
at the conclusion of his/her employment.
16. RECORDS ARE PROPERTY OF COMPANY. Employee agrees that all
accounts, notes, data sketches, drawings and other documents and records, and
all material and physical items of any kind, including all reproductions and
copies thereof, which relate in any way to the business, products, practices or
techniques of the Company or contain Confidential Information, made by Employee
or that come into Employee's possession by reason of his/her employment are the
property of the Company and shall be promptly surrendered to the Company at the
conclusion of Employee's employment.
17. NON-SOLICITATION. During Employee's employment with the
Company and for one (1) year thereafter, Employee will not solicit any employee
of the Company to leave the Company for any reason or to accept employment with
any other company. However, this obligation shall not affect any responsibility
Employee may have as an employee of the Company with respect to the bona fide
hiring and firing of Company personnel.
18. RETENTION BONUS PROGRAM. Employee shall continue to
participate in, and the Company agrees to assume, the Retention Package bonus
program under the same terms as explained in the memorandum to Employee dated
November 11, 1998 from Molecular Biosystems, Inc.
19. PROHIBITION AGAINST ASSIGNMENT. Employee agrees that this
Agreement and the rights, interests and benefits hereunder shall not be
assigned, transferred, pledged or hypothecated in any way by Employee or any
executor, administrator, heir, legatee, distributee or any other person claiming
under Employee by virtue of this Agreement and shall not be subject to
execution, attachment or similar process. Any attempt to assign, transfer,
pledge or hypothecate or otherwise dispose of this Agreement or of such rights,
interests and benefits
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contrary to the foregoing provisions, or the levy of any attachment or similar
process thereon shall be null and void and without effect and shall relieve the
Company of any and all liability hereunder.
20. NOTICE. Any and all notices, designations, consents,
offers, acceptances or any other communication provided for herein shall be
given in writing by registered or certified mail, return receipt requested,
which shall be addressed, in the case of the Company, to its office in
Princeton, New Jersey, and in Employee's case to his/her last known place of
residence as reflected on the Company's records.
21. ENTIRE AGREEMENT. This Agreement, and any stock option or
stock purchase agreements between by the Employee and the Company or its
predecessors, constitute the entire agreement between Employee and the Company
and contains all of the agreements between the parties with respect to the
subject matter hereof; except as provided herein and except for the obligations
set forth in paragraphs 5 through 13 of Employee's January 21, 1999 Employment
Agreement with Molecular Biosystems, Inc., this Agreement supersedes any and all
other agreements, either oral or in writing, between the parties with respect to
the subject matter hereof.
22. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of Employee and the Company and their respective heirs,
legal representatives, executors, administrators, and successors.
23. NO OTHER AGREEMENTS. Employee affirms that Employee has no
agreement with any other party that would preclude his/her compliance with
his/her obligations under this Agreement as set forth above.
24. GOVERNING LAW. This Agreement shall be subject to and
governed by the laws of the State of California.
25. AMENDMENT OF AGREEMENT. No change or modification of this
Agreement shall be valid unless the same is in writing and signed by Employee
and the Company. No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the person or party to be charged.
26. SEVERABILITY. If any portion or portions of this Agreement
shall be, for any reason, deemed to be invalid or unenforceable, the remaining
portion or portions shall nevertheless be valid, enforceable and carried into
effect, unless to do so would clearly violate the present legal and valid
intention of the parties hereto.
27. BREACH. In the event either party breaches this Agreement
and the other party prevails in an action to enforce the terms of this
Agreement, the losing party agrees to pay to the prevailing party all reasonable
attorneys' fees and costs incurred by the prevailing party in prosecuting such
action, and all damages suffered by the prevailing party.
28. HEADINGS. The headings of this Agreement are inserted for
convenience only and are not to be considered in construction of the provisions
hereof.
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29. WAIVER OR BREACH. The waiver by either of the parties
hereto of any breach of any provision hereof shall not be construed to be a
waiver of any succeeding breach of that provision or a waiver of any other
provision of this Agreement.
30. ARBITRATION OF DISPUTES. Any controversy, dispute and/or
claim in any manner arising out of or relating to this Agreement; any claim,
including but not limited to any claim of race, age, national origin, religion,
sex, pregnancy, family leave, harassment, sexual orientation, or disability
discrimination; defamation; infliction of emotional distress; breach of
contract; violation of public policy or statute; or wrongful termination arising
out of the voluntary or involuntary termination of the Employment, shall be
settled solely by final and binding arbitration in accordance with the
Employment Dispute Resolution Regulations of the American Arbitration
Association. Any arbitration proceeding shall take place in the city of the
Employee's residence. Judgment on any decision rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The Employee and the Company
shall each pay the fees of his or its own attorneys, the expenses of his or its
witnesses and all other expenses connected with presenting his or its case in
arbitration. All other costs of the arbitration shall be determined by the
arbitrator. The arbitrator who hears and decides any controversy between the
Employee and the Company, shall in determining a remedy, have jurisdiction and
authority to issue any order or award available in a court of law.
31. GENERIC DRUG ENFORCEMENT ACT CERTIFICATION. The
undersigned, certifies that he (1) has never been charged with or convicted of a
federal felony for conduct relating to the development, approval, or regulation
of any drug product or device regulated by the United States Food and Drug
Administration, and (2) has never been debarred or subject to a debarment
proceeding under the Generic Drug Enforcement Act of 1992.
WHEREAS, the parties have executed this Agreement as of the
dates set forth below.
Dated: ________________________ PALATIN TECHNOLOGIES, INC.
By:______________________________________
Officer of Palatin Technologies, Inc.
Dated: ________________________ "EMPLOYEE"
By:______________________________________
Joseph Connell
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EMPLOYMENT AGREEMENT
This is an EMPLOYMENT AGREEMENT ("Agreement") between
HOWARD DITTRICH, M.D. an individual ("Employee"), and PALATIN TECHNOLOGIES,
INC., a Delaware corporation ("the Company").
1. EFFECTIVE DATE. This Agreement is contingent on the closing
of Molecular Biosystems, Inc.'s merger with, or acquisition by, Palatin
Technologies, Inc. on or before March 31, 2000, and is effective on the closing
date of such merger or acquisition (the "Effective Date").
2. EMPLOYMENT.
a. POSITION. The Company agrees to employ Employee as its
Executive Vice President and Chief Medical Officer (the "Employment"). A
proposed organizational chart is attached as Exhibit A.
b. OBLIGATIONS TO COMPANY. Employee shall diligently, and
to the best of his ability, perform all such duties incident to his position and
other duties as may be assigned by the Company's President and Chief Executive
Officer. The Company shall be entitled to all of the benefits and profits
arising from or incident to the work, services and advice rendered by the
Employee relating to the work performed for the Company. The Employee shall make
all information available to the Company that relates to the Company's business
of which he has any knowledge and shall not use any such information or the
benefits of any such information for his personal profit or that of any third
party. The Employee agrees to use his best efforts to promote the interests of
the Company including, where appropriate, the publication of articles in medical
and scientific journals and the participation in medical and scientific seminars
and symposiums relating to the business and affairs of the Company and/or his
efforts performed for and on behalf of the Company. A list of Employee's initial
job duties is attached as Exhibit B.
c. TIME TO BE DEVOTED TO EMPLOYMENT. Employee shall devote
his full time and energy to the business of the Company and shall not be engaged
in any competitive business activity without the express written consent of the
Company. However, it is understood and agreed that Employee will perform his
duties from his current residence in California or by travelling as needed.
Employee is also entitled to at least ten paid days off each year to attend any
continuing medical education classes or courses that he chooses. In addition,
Employee will be entitled to at least one half paid day off each week for
purposes of carrying out clinical activities at the University of California,
San Diego hospitals and clinics as part of his status as a clinical professor of
medicine. Employee hereby represents that he is not a party to any agreement
which would be an impediment to entering into this Employment Agreement and that
he is permitted to enter into this Employment Agreement and perform the
obligations hereunder.
3. COMPENSATION AND BENEFITS.
a. ANNUAL SALARY. In consideration of and as compensation
for the services agreed to be performed by Employee hereunder, the Company
agrees to pay Employee
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an annualized base salary not less than Employee's annual Base Salary paid by
Molecular Biosystems, Inc. immediately prior to the Effective Date of the
Agreement. Thereafter, Employee's annual Base Salary is subject to being
increased as part of the Company's annual salary review process. If Employee is
an Officer of the Company, changes to Base Salary must be approved by the Board
of Directors of the Company (the "Board").
b. BONUS. The Employee shall be eligible to be considered
for an annual bonus based on objective or subjective criteria approved by the
Company's Board of Directors (the "Board"). Such bonus shall be contingent upon
Employee's continued employment through the end of the bonus period and Employee
shall have no right to any pro rata portion of the bonus. The determinations of
the President and CEO with respect to such bonus shall be final and binding.
c. OPTION GRANT. Employee shall be eligible for stock
option awards at the discretion of the Board of Directors. Vesting and exercise
periods would be in accordance with the Company's stock option plans.
(1) EFFECT OF CHANGE OF CONTROL. In the event of a
Change of Control (whether or not followed by termination of Employee's
employment), all stock options under any Company stock option plan which
Employee holds at the time of such Change of Control shall become fully "vested"
(i.e., immediately exercisable).
d. PARTICIPATION IN BENEFIT PLANS. Employee shall be
entitled to participate in any vacation or other benefit plan, to the extent
eligible, that is generally available to the other employees of the Company at
the same level as Employee. The Company reserves the right to amend, modify or
terminate any employee benefits at any time for any reason.
e. REIMBURSEMENT OF EXPENSES. The Company shall reimburse
Employee for all reasonable business expenses incurred by Employee on behalf of
the Company provided that: (i) such reasonable expenses are ordinary and
necessary business expenses incurred on behalf of the Company, and (ii) Employee
provides the Company with itemized accounts, receipts and other documentation
for such reasonable expenses as are reasonably required by the Company. In
addition, the Company will pay on Employee's behalf the following professional
license fees and memberships: California Physician and Surgeon, Drug Enforcement
Agency ("DEA"), American College of Cardiology, American Heart Association,
American Society of Echocardiography, American College of Medicine, and the
American Medical Association (local, state and national).
f. EDUCATIONAL ASSISTANCE BENEFIT. The Company agrees to
pay on behalf of the Employee reasonable tuition, fees and similar expenses for
a general management skills development course. The Company must approve all
such expenses in advance. The Employee development/training course should
require no more than a two-week period away from the job.
4. RELOCATION BENEFITS. The Company will provide the Employee
with full relocation assistance, consistent with the past executive relocation
practice of Molecular Biosystems, Inc., if the Company requires Employee to
relocate his regular place of employment more than 35 miles from his current
residence in California. Relocation benefits would include,
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but are not limited to, the payment of all closing costs on the sale of
Employee's current home and purchase of a new home in new location. The Company
also will pay for the packing and unpacking of his household goods, relocation
of his household goods, the transport of a maximum of two (2) automobiles (or
reimbursement for miles traveled between old and new location for no more than
two (2) automobiles at prevailing IRS rates), and two (2) house-hunting trips
for Employee and his spouse, if applicable. The Company also will pay the
reasonable costs of Employee's temporary housing and living expenses until such
time as the Employee permanently relocates. The Employee shall present
appropriate supporting documentation of such costs in accordance with the
Company's generally applicable policies.
5. DEFINITIONS. The following definitions shall apply with
respect to this agreement.
a. BASE SALARY means the Employee's annual salary; it shall
not include overtime pay, commissions or any other benefits and special
allowances for which the Employee is eligible (e.g., bonuses). If Employee's
annual salary is adjusted at any time following the Effective Date of this
Agreement, the adjusted annual salary would then represent Employee's Base
Salary. "Weekly Salary" shall mean the Base Salary divided by fifty-two.
"Monthly Salary" shall mean Base Salary divided by 12.
b. CHANGE OF CONTROL means the occurrence of any of the
following events:
(1) any "person," as such term is used in Sections 13
(d) and 14 (d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than the company, any trustee or other fiduciary holding securities
under an employee benefit plan of the Company, or any corporation owned directly
or indirectly by the stockholders of the Company in substantially the same
proportion as their ownership of stock of the Company) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 40% or more of the
combined voting power of the company's then outstanding securities; or
(2) individuals who, as of the Commencement Date,
constitute the board (as of the Commencement Date, the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the Commencement Date whose election,
or nomination for election by the Company's stockholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board
(other than an election or nomination of an individual whose initial assumption
of office is in connection with an actual or threatened election contest
relating to the election of the directors of the Company, as such terms are used
in Rule 14a-11 of Regulation 14A under the Exchange Act) shall be, for purposes
of this Agreement, considered as though such person were a member of the
Incumbent Board; or
(3) the stockholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than
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(A) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 80% of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation or
(B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 50% of the combined voting
power of the Company's then outstanding securities; or
(4) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the company of all or substantially all of the Company's assets.
c. CONSTRUCTIVE TERMINATION shall occur if Employee resigns
his employment within thirty (30) days of the occurrence of any of the following
events: (i) any reduction in the Base Salary of the Employee; (ii) a demand for
relocation by the Company or an expectation for relocation by the Company to a
location more than thirty-five (35) miles from Employee's current residence in
California, without Employee's written consent; or (iii) a significant or
material reduction in Employee's job duties or level of responsibility.
d. TERMINATION FOR CAUSE means a termination of Employee's
employment by the Company due to the Employee's:
(1) Misconduct that has a material adverse effect on
the Company's operations, prospects, reputation or business;
(2) Conviction of a felony or any crime involving
moral turpitude; or
(3) Act of fraud against, or theft of property
belonging to, the Company.
e. TERMINATION WITHOUT CAUSE means a termination of
Employee's employment by the Company for any reason other than those specified
in subsections 5(b)(1) through (3) above.
f. DISABILITY means that as a result of any physical or
mental injury or disability, Employee is unable to perform the essential
functions of his job, with or without reasonable accommodation. A notice will be
issued when the Company has reasonably determined that Employee has become
unable to perform substantially his services and duties hereunder with or
without reasonable accommodation because of any physical or mental injury or
disability, and that it is reasonably likely that he will not be able to resume
substantially performing his services and duties on substantially the terms and
conditions as set forth in this Employment Agreement.
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6. EMPLOYMENT TERM.
a. EMPLOYMENT TERM. The "Employment Term" means the period
commencing on the Effective Date and terminating on the earlier of three (3)
years from the Effective Date or as set forth in Section 6(c).
b. NOTICE OF RENEWAL. No less than sixty (60) days prior to
the natural expiration of the initial Employment Term of this Employment
Agreement, the Company shall give Employee written notice of whether the Company
will be seeking an extension of Employee's services beyond the initial
Employment Term.
c. TERMINATION OF EMPLOYMENT. The Company may terminate the
Employee's Employment at any time and for any reason (or no reason), and with
"Cause" or "Without Cause," by giving the Employee notice in writing, subject to
the severance payment provisions set forth in Section 7. The Employee may
terminate his Employment by giving the Company 14 days' advance notice in
writing. The Employee's Employment shall terminate automatically in the event of
his death or on the date the Company provides notice of its reasonable
determination of Employee's Disability.
d. TERMINATION OF AGREEMENT. This Agreement shall terminate
when all obligations of the parties hereunder have been satisfied. The
termination of this Agreement shall not limit or otherwise affect any of the
Employee's obligations under Sections 9 through 17 of this Agreement.
7. TERMINATION BENEFITS.
a. AGREEMENT SUPERSEDES PREVIOUS SEVERANCE PROVISIONS. The
provisions of this Section 7 supersede the severance payment and severance
benefits provisions set forth in paragraphs 14 and 16 of Employee's January 21,
1999 Employment Agreement with Molecular Biosystems, Inc., but this Section 7
does NOT supersede or limit the effect of paragraph 15 of that agreement which
provides as follows:
ACCELERATION OF STOCK OPTIONS IN THE EVENT OF A CHANGE OF
CONTROL. In the event of a Change of Control (whether or not
followed by termination of Employee's employment), all stock
options under any Company [Molecular Biosystems, Inc.] stock
option plan which Employee holds at the time of such Change of
Control shall become fully "vested" (i.e., immediately
exercisable). The Company [Molecular Biosystems, Inc.] shall
also extend the period of exercisability of those stock
options to the maximum of four years, or the natural
expiration of the stock options, whichever is earlier.
b. EFFECT OF TERMINATION FOR "CAUSE," DEATH OR DISABILITY.
During the Employment Term, upon (i) the termination of Employee's Employment
for "Cause;" or (ii) Employee's death or Disability pursuant to subsection 5(d)
of this Agreement, the Company shall pay (i) Employee's Base Salary through the
effective date of the termination of Employee's Employment; (ii) all of
Employee's accrued but unused vacation time; and (iii) Employee's
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<PAGE>
group health coverage, including e.g., eligible medical, dental and vision
insurance, through the last day of the calendar month during which the
termination occurs (group health coverage after such date being governed by
COBRA), but Employee otherwise shall not be entitled to any severance benefits
or severance payments under any provision of this Agreement or under any other
plan.
c. EFFECT OF EMPLOYEE'S RESIGNATION PRIOR TO ONE YEAR
ANNIVERSARY. During the Employment Term, in the event that Employee resigns or
voluntary departs the Company for any reason (except in the event of
Constructive Termination) PRIOR to the one (1) year anniversary of the Effective
Date the Company shall pay: (i) Employee's Base Salary through the effective
date of the termination of Employee's Employment; (ii) all of Employee's accrued
but unused vacation time; and (iii) Employee's group health coverage, including
e.g., eligible medical, dental and vision insurance, through the last day of the
calendar month during which the termination occurs (group health coverage after
such date being governed by COBRA), but Employee otherwise shall not be entitled
to any severance benefits or severance payments under any provision of this
Agreement or under any other plan.
d. EFFECT OF TERMINATION WITHOUT CAUSE, CONSTRUCTIVE
TERMINATION, OR EMPLOYEE'S RESIGNATION AFTER ONE YEAR ANNIVERSARY. During the
Employment Term, in the event that (i) the Company terminates Employee's
employment with the Company "Without Cause," (ii) there is a Constructive
Termination, or (iii) Employee resigns or voluntary departs the Company for any
reason on or after the one (1) year anniversary of the Effective Date:
(1) The Company shall make the following payments to
Employee:
(A) ACCRUED SALARY AND BENEFITS. The Company
shall pay Employee's Base Salary through the effective date of termination of
Employee's Employment. In addition to the Severance Payments payable to an
eligible employee as described below, such employee shall receive the following:
(i) payment for accrued but unused vacation time; and (ii) group health
coverage, including e.g., eligible medical, dental and vision insurance, through
the last day of the calendar month during which the termination occurs (group
health coverage after such date being governed by COBRA.)
(B) SEVERANCE PAYMENTS. The Company shall pay
to Employee an amount equal to two (2) times the sum of the following: (a)
Employee's annualized Base Salary in effect immediately prior to the termination
of employment, plus (b) the higher of (i) 100% of Employee's annual target bonus
as determined under the Company's incentive compensation plan or (ii) an average
of the last three actual bonuses accorded to Employee. If the Company has not
adopted an incentive compensation plan as referred to in the foregoing sentence,
then the amount determined under (ii) shall govern.
(C) MANNER OF PAYMENT. Severance Payments may
be paid in accordance with regular payroll periods, in a single lump sum
payment, or any combination thereof, as deemed appropriate by the Company. Taxes
and other appropriate deductions will be withheld; however, 401k contributions
will not be allowed.
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<PAGE>
(2) The Company shall provide the following benefits
to Employee:
(A) COBRA PREMIUMS. An eligible Employee's
existing coverage under the Company's group health plan (and, if applicable, the
existing group health coverage for eligible dependents) will end on the last day
of the month in which the eligible Employee's employment terminates. The
eligible Employee and his eligible dependents may then be eligible to elect
temporary continuation coverage under the Company's group health plan in
accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA"). The eligible Employee (and, if applicable, his eligible
dependents) will be provided with a COBRA election form and notice which
describe his rights to continuation coverage under COBRA. If an eligible
Employee elects COBRA continuation coverage, then the Company will pay for COBRA
coverage (such payments shall not include COBRA coverage with respect to the
Company's Section 125 health care reimbursement plan) for (i) eighteen (18)
months, or (ii) the maximum period permitted under COBRA guidelines, but not to
exceed 24 months. If Employee does exhaust the COBRA period, the Company will
reimburse Employee for the cost of an individual health insurance policy in an
amount not to exceed the amount of the monthly COBRA premium previously paid by
the Company pursuant to this paragraph for the remainder of the two year period
following Employee's termination of employment. After such period of
Company-paid coverage, the eligible employee (and, if applicable, his eligible
dependents) may continue coverage at his own expense in accordance with COBRA or
other applicable laws. No provision of this agreement will affect the
continuation coverage rules under COBRA. Therefore, the period during which the
eligible employee must elect to continue the Company's group health plan
coverage under COBRA, the length of time during which COBRA coverage will be
made available to the eligible employee, and all the eligible employee's other
rights and obligations under COBRA will be applied in the same manner that such
rules would apply in the absence of this Plan. In the event, however, an
Employee becomes eligible for benefits under another plan prior to the
expiration of the period in which the Company is paying benefit premiums, the
Company shall no longer be obligated to pay such benefit premiums. The Employee
is required to notify the Company of eligibility for benefits under another plan
and is expected to enroll in the new group plan at the first eligible
opportunity unless Employee chooses, at Employee's sole expense, to continue
COBRA benefits through the Company. If Employee fails to notify the Company of
Employee's eligibility for alternative benefits, the Company shall have the
right to discontinue payment of COBRA premiums upon thirty (30) days notice to
Employee. In no event shall a cash payment be made to Employee in lieu of the
payment of COBRA premiums. The payment of COBRA premiums by the Company shall
not extend the maximum eligible COBRA coverage period.
(B) OUTPLACEMENT SERVICES. The Company will
make available to Employee, upon his/her request, outplacement services provided
by a reputable outplacement counselor selected by the Company for a period of
nine months following termination. The Company will assume the cost of all such
outplacement services. In no event will a cash payment be made in lieu of
outplacement benefits.
e. RESIGNATION AS AN OFFICER AND DIRECTOR. In the event
Employee's employment with the Company terminates for any reason, Employee
agrees to immediately resign as an officer and/or director of the Company, if
applicable.
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8. SEVERANCE LIMITATIONS. The Severance Payments referred to
herein shall be reduced as necessary so that the present value, as determined in
accordance Section 280G(d)(4) of the Internal Revenue Code, of the sum of (i)
the Severance Payments and (ii) all other payments, if any, that must be taken
into account for purposes of computation under Section 280G(b)(2)(A)(ii) of the
Internal Revenue Code in respect of Employee does not exceed 2.99 times
Employee's base amount, as "base amount" is defined in Section 280G(b)(3) of the
Internal Revenue Code.
9. DISCLOSURES. Employee shall promptly disclose in writing to
the officials designated by the Company to receive such disclosures, complete
information concerning each and every invention, discovery, improvement, device,
design, apparatus, practice, process, method or product (hereinafter referred to
as "Inventions"), whether Employee considers them patentable or not, made,
developed, perfected, devised, conceived or reduced to practice by Employee,
either solely or in collaboration with others, during the period of Employee's
employment by the Company, and up to and including a period of twelve (12)
months after termination of employment, whether or not during regular working
hours, relating either directly or indirectly to the business, products,
practices or techniques of the Company or to the Company's actual or
demonstrably anticipated research or development, or resulting from any work
performed by Employee for the Company or with the equipment, supplies,
facilities or confidential information of the Company.
10. CONFIDENTIALITY. Employee recognizes that his/her
employment with the Company will involve contact with information of substantial
value to the Company, which is not generally known in the trade and which gives
the Company an advantage over its competitors who do not know or use it,
including but not limited to techniques, designs, drawings, processes,
inventions, developments, equipment, prototypes, sales and customer information,
and business and financial information, relating to the business, products,
practices or techniques of the Company (hereinafter referred to as "Confidential
Information"). Employee shall at all times regard and preserve as confidential
such Confidential Information obtained by Employee from whatever source and
shall not, either during Employee's employment or thereafter, publish or
disclose any part of such Confidential Information in any manner, or use the
same except on behalf of the Company, without the prior written consent of the
Company. Further, Employee shall, during his/her employment and thereafter,
refrain from any acts or omissions that would reduce the value of such
Confidential Information to the Company.
11. ASSIGNMENT OF RIGHTS. Employee hereby agrees that any
Inventions made, developed, perfected, devised, conceived or reduced to practice
by Employee during the period of his/her employment by the Company, and any
other Inventions made, developed, perfected, devised, conceived or reduced to
practice by Employee during said period of twelve (12) months after termination
of his/her employment if based upon the Confidential Information of the Company,
relating either directly or indirectly to the business, products, practices or
techniques of the Company or to the Company's actual or demonstrably anticipated
research or development, or resulting from any work performed by Employee for
the Company or with the equipment, supplies, facilities or Confidential
Information of the Company, are the sole property of the Company, and hereby
assigns and agrees to assign to the Company, its successors and assigns, all of
my right, title and interest in and to said Inventions, and any patent
applications or Letters Patent thereon.
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NOTIFICATION
THIS AGREEMENT DOES NOT APPLY TO AN INVENTION FOR WHICH NO
EQUIPMENT, SUPPLIES, FACILITY, OR TRADE SECRET INFORMATION OF THE COMPANY WAS
USED AND WHICH WAS DEVELOPED ENTIRELY ON EMPLOYEE'S OWN TIME, AND (A) WHICH DOES
NOT RELATE (1) TO THE BUSINESS OF THE COMPANY OR (2) TO THE COMPANY'S ACTUAL OR
DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT, OR (B) WHICH DOES NOT RESULT
FROM ANY WORK PERFORMED BY EMPLOYEE FOR THE COMPANY, AS DEFINED AND PROVIDED BY
SECTION 2870 OF THE CALIFORNIA LABOR CODE.
12. COVENANT OF COOPERATION. Employee shall, at any time
during employment or for a period of twelve (12) months thereafter, upon request
and without further compensation therefor, but with all reasonable expenses
incurred by Employee to be reimbursed, do all lawful acts, including but not
limited to the execution of papers and oaths, the giving of testimony, and the
obtaining of evidence that in the opinion of the Company, its successors or
assigns, may be necessary or desirable for obtaining, sustaining, reissuing or
enforcing Letters Patent in the United States and throughout the world for said
Inventions, and for perfecting, recording or maintaining the title of the
Company, its successors and assigns, to said Inventions and to any patent
applications made and any Letters Patent granted for said Inventions in the
United States and throughout the world. This covenant shall not apply if such
cooperation would directly interfere or conflict with Employee's duties or
obligations pursuant to Employee's subsequent employment.
13. PATENT ENFORCEMENT. The Company shall have the sole
discretion whether to obtain, maintain, modify or enforce any domestic or
foreign patent for said Inventions assigned to the Company pursuant to this
Agreement. The Company is free to enter into any licensing or assignment
agreement with any third party or to use whatever means it deems best to
develop, promote or market said Inventions assigned to the Company pursuant to
this Agreement or any domestic or foreign patent thereof.
14. CLAIMS BY THIRD PARTY. As to any Inventions which were
made, developed, perfected, devised, conceived or reduced to practice by
Employee during the period of his/her employment by the Company, and up to and
including a period of twelve (12) months after termination of his/her
employment, but which are claimed for any reason to belong to an entity or
person other than the Company, Employee will promptly disclose the same in
writing to the Company and shall not disclose the same to others if the Company,
within twenty (20) days thereafter, shall claim ownership of such Inventions
under the terms of this Agreement.
15. RECORD KEEPING. Employee shall keep complete, accurate and
authentic accounts, notes, data and records of any and all of said Inventions in
the manner and form requested by the Company. Such accounts, notes, data and
records, including all copies thereof, shall be the property of the Company, and
upon its request, Employee will promptly surrender the same to it, or if not
previously surrendered, Employee will promptly surrender the same to the Company
at the conclusion of his/her employment.
16. RECORDS ARE PROPERTY OF COMPANY. Employee agrees that all
accounts, notes, data sketches, drawings and other documents and records, and
all material and physical items of
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any kind, including all reproductions and copies thereof, which relate in any
way to the business, products, practices or techniques of the Company or contain
Confidential Information, made by Employee or that come into Employee's
possession by reason of his/her employment are the property of the Company and
shall be promptly surrendered to the Company at the conclusion of Employee's
employment.
17. NON-SOLICITATION. During Employee's employment with the
Company and for one (1) year thereafter, Employee will not solicit any employee
of the Company to leave the Company for any reason or to accept employment with
any other company. However, this obligation shall not affect any responsibility
Employee may have as an employee of the Company with respect to the bona fide
hiring and firing of Company personnel.
18. RETENTION BONUS PROGRAM. Employee shall continue to
participate in, and the Company agrees to assume, the Retention Package bonus
program under the same terms as explained in the memorandum to Employee dated
December 3, 1998 from Molecular Biosystems, Inc.
19. RETENTION BONUS. Employee has been paid a retention bonus
by Molecular Biosystems, Inc. in the amount of $62,500. This payment has not yet
been earned by the Employee and will not be earned unless and until Employee
remains employed through December 31, 2000. If Employee resigns his employment
for any reason (other than as a result of a Constructive Termination) or there
is a Termination for Cause, either of which occurs prior to December 31, 2000,
then Employee will repay the full $62,500 within thirty days of the date of
termination of his employment; in all other circumstances, the entire retention
bonus will be forgiven.
20. PROHIBITION AGAINST ASSIGNMENT. Employee agrees that this
Agreement and the rights, interests and benefits hereunder shall not be
assigned, transferred, pledged or hypothecated in any way by Employee or any
executor, administrator, heir, legatee, distributee or any other person claiming
under Employee by virtue of this Agreement and shall not be subject to
execution, attachment or similar process. Any attempt to assign, transfer,
pledge or hypothecate or otherwise dispose of this Agreement or of such rights,
interests and benefits contrary to the foregoing provisions, or the levy of any
attachment or similar process thereon shall be null and void and without effect
and shall relieve the Company of any and all liability hereunder.
21. NOTICE. Any and all notices, designations, consents,
offers, acceptances or any other communication provided for herein shall be
given in writing by registered or certified mail, return receipt requested,
which shall be addressed, in the case of the Company, to its office in
Princeton, New Jersey, and in Employee's case to his/her last known place of
residence as reflected on the Company's records.
22. ENTIRE AGREEMENT. This Agreement, and any stock option or
stock purchase agreements between by the Employee and the Company or its
predecessors, constitute the entire agreement between Employee and the Company
and contains all of the agreements between the parties with respect to the
subject matter hereof; except as provided herein and except for the obligations
set forth in paragraphs 5 through 13 of Employee's January 21, 1999 Employment
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Agreement with Molecular Biosystems, Inc., this Agreement supersedes any and all
other agreements, either oral or in writing, between the parties with respect to
the subject matter hereof.
23. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of Employee and the Company and their respective heirs,
legal representatives, executors, administrators, and successors.
24. NO OTHER AGREEMENTS. Employee affirms that Employee has no
agreement with any other party that would preclude his/her compliance with
his/her obligations under this Agreement as set forth above.
25. GOVERNING LAW. This Agreement shall be subject to and
governed by the laws of the State of California.
26. AMENDMENT OF AGREEMENT. No change or modification of this
Agreement shall be valid unless the same is in writing and signed by Employee
and the Company. No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the person or party to be charged.
27. SEVERABILITY. If any portion or portions of this Agreement
shall be, for any reason, deemed to be invalid or unenforceable, the remaining
portion or portions shall nevertheless be valid, enforceable and carried into
effect, unless to do so would clearly violate the present legal and valid
intention of the parties hereto.
28. BREACH. In the event either party breaches this Agreement
and the other party prevails in an action to enforce the terms of this
Agreement, the losing party agrees to pay to the prevailing party all reasonable
attorneys' fees and costs incurred by the prevailing party in prosecuting such
action, and all damages suffered by the prevailing party.
29. HEADINGS. The headings of this Agreement are inserted for
convenience only and are not to be considered in construction of the provisions
hereof.
30. WAIVER OR BREACH. The waiver by either of the parties
hereto of any breach of any provision hereof shall not be construed to be a
waiver of any succeeding breach of that provision or a waiver of any other
provision of this Agreement.
31. ARBITRATION OF DISPUTES. Any controversy, dispute and/or
claim in any manner arising out of or relating to this Agreement; any claim,
including but not limited to any claim of race, age, national origin, religion,
sex, pregnancy, family leave, harassment, sexual orientation, or disability
discrimination; defamation; infliction of emotional distress; breach of
contract; violation of public policy or statute; or wrongful termination arising
out of the voluntary or involuntary termination of the Employment, shall be
settled solely by final and binding arbitration in accordance with the
Employment Dispute Resolution Regulations of the American Arbitration
Association. Any arbitration proceeding shall take place in the city of the
Employee's residence. Judgment on any decision rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The Employee and the Company
shall each pay the fees of his or its own attorneys, the expenses of his or its
witnesses and all other expenses connected
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with presenting his or its case in arbitration. All other costs of the
arbitration shall be determined by the arbitrator. The arbitrator who hears and
decides any controversy between the Employee and the Company, shall in
determining a remedy, have jurisdiction and authority to issue any order or
award available in a court of law.
32. GENERIC DRUG ENFORCEMENT ACT CERTIFICATION. The
undersigned, certifies that he (1) has never been charged with or convicted of a
federal felony for conduct relating to the development, approval, or regulation
of any drug product or device regulated by the United States Food and Drug
Administration, and (2) has never been debarred or subject to a debarment
proceeding under the Generic Drug Enforcement Act of 1992.
WHEREAS, the parties have executed this Agreement as of the dates set
forth below.
Dated: ________________________ PALATIN TECHNOLOGIES, INC.
By:______________________________________
Officer of Palatin Technologies, Inc.
Dated: ________________________ "EMPLOYEE"
By:______________________________________
Howard Dittrich, M.D.
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CONSULTING AGREEMENT
This is a CONSULTING AGREEMENT ("Agreement") between BOBBA
VENKATADRI, an individual ("Consultant"), and PALATIN TECHNOLOGIES, INC., a
Delaware corporation ("the Company").
WHEREAS, Consultant is currently the Chief Executive Officer
of Molecular Biosystems, Inc. ("MBI") pursuant to the terms of that certain
Employment Agreement (the "Employment Agreement") dated on or before January 21,
1999;
WHEREAS, on the date hereof, MBI has entered into that certain
Merger Agreement by and between MBI, the Company and Evergreen Merger
Corporation (the "Merger Agreement") whereby the parties have agreed that
Evergreen will merge with and into MBI;
WHEREAS, in connection with the merger contemplated by the
Merger Agreement the parties wish to terminate Consultant's existing employment
agreement with MBI, with certain provisions identified herein surviving, and to
enter into a new Consulting Agreement with Consultant pursuant to which
Consultant shall have certain responsibilities identified by the Chief Executive
Officer of Palatin;
NOW THEREFORE, in consideration of the foregoing and of the
material promises and conditions contained in this Agreement the parties agree
as follows:
1. EFFECTIVE DATE. This Agreement is contingent on the closing
of Molecular Biosystems, Inc.'s merger with, or acquisition by, Palatin
Technologies, Inc. on or before March 31, 2000, and is effective on the closing
date of such merger or acquisition (the "Effective Date").
2. EMPLOYMENT.
a. POSITION. Consultant shall, perform assigned
duties as set forth in Exhibit A (the "Employment").
b. OBLIGATIONS TO COMPANY. Consultant shall
diligently, and to the best of his ability, perform all such duties as may be
assigned at the direction, and in the sole discretion, of the Company's Chief
Executive Officer (the "CEO"). The Company shall be entitled to all of the
benefits and profits arising from or incident to the work, services and advice
rendered by the Consultant relating to the work performed for the Company. The
Consultant shall make all information available to the Company that relates to
the Company's business of which he has any knowledge and shall not use any such
information or the benefits of any such information for his personal profit or
that of any third party.
c. TIME TO BE DEVOTED TO EMPLOYMENT. Consultant shall
not be engaged in any competitive business activity without the express written
consent of the Company except Consultant may serve on the Board of Directors of
no more than two (2) other corporations with the prior written approval of the
CEO. Consultant hereby represents that he is not a party to any
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agreement which would be an impediment to entering into this Consulting
Agreement and that he is permitted to enter into this Consulting Agreement and
perform the obligations hereunder. During the term of this Agreement, and
following his employment with the Company,.
3. COMPENSATION AND BENEFITS.
a. ANNUAL SALARY. In consideration of and as
compensation for the services agreed to be performed by Consultant hereunder,
the Company agrees to pay Consultant an annualized base salary not less than
$336,000. Thereafter, Consultant's annual Base Salary is subject to being
increased as part of the Company's annual salary review process. Changes to Base
Salary must be approved by the Board of Directors of the Company (the "Board").
b. BONUS. Consultant will be eligible to receive an
annual bonus to be determined by the Board based on Consultant's performance,
the Company's performance, and any other reasonable factors determined by the
Board of Directors.
c. STOCK OPTIONS. Consultant shall be eligible for
stock option awards at the discretion of the Board of Directors. Vesting and
exercise periods would be in accordance with the Company's stock option plan.
(1) EFFECT OF CHANGE OF CONTROL In the event of a
Change of Control (whether or not followed by termination of Consultant's
employment), all stock options under any Company stock option plan which
Consultant holds at the time of such Change of Control shall become fully
"vested" (i.e., immediately exercisable).
d. PARTICIPATION IN BENEFIT PLANS. Consultant shall
be eligible for family medical, dental, short and long term disability, life
insurance coverage, eligibility in the Corporation's 401(k) plan, vacation and
any other such benefits as are made available to the employees of the
Corporation, all on such terms and conditions (including, where applicable,
cost-sharing with the Consultant) as are applicable to participants generally.
The Company reserves the right to amend, modify or terminate any Consultant
benefits at any time for any reason. In the event Consultant does not qualify,
or becomes ineligible, for Company's medical, dental, vision, short or long term
disability or other health insurance coverage, the Company agrees to provide
equivalent coverage, as would normally be provided to employees, through an
individual policy(s) or the equivalent, as mutually agreed upon by the
Consultant and the Company.
e. REIMBURSEMENT OF EXPENSES. The Company shall
reimburse Consultant for all reasonable business expenses incurred by Consultant
on behalf of the Company provided that: (i) such reasonable expenses are
ordinary and necessary business expenses incurred on behalf of the Company, and
(ii) Consultant provides the Company with itemized accounts, receipts and other
documentation for such reasonable expenses as are reasonably required by the
Company.
4. DEFINITIONS. The following definitions shall apply with
respect to this agreement.
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a. BASE SALARY means the Consultant's annual salary;
it shall not include any other benefits and special allowances for which the
Consultant may be eligible (e.g., bonuses). If Consultant's annual salary is
adjusted at any time following the Effective Date of this Agreement, the
adjusted annual salary would then represent Consultant's Base Salary. "Weekly
Salary" shall mean the Base Salary divided by fifty-two. "Monthly Salary" shall
mean Base Salary divided by 12.
b. CHANGE OF CONTROL means the occurrence of any of
the following events:
(1) any "person," as such term is used in
Sections 13 (d) and 14 (d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (other than the company, any trustee or other fiduciary
holding securities under an Consultant benefit plan of the Company, or any
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportion as their ownership of stock of the Company) is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 40% or
more of the combined voting power of the company's then outstanding securities;
or
(2) individuals who, as of the Commencement
Date, constitute the board (as of the Commencement Date, the "Incumbent Board")
cease for any reason to constitute at least a majority of the Board, provided
that any person becoming a director subsequent to the Commencement Date whose
election, or nomination for election by the Company's stockholders, was approved
by a vote of at least a majority of the directors then comprising the Incumbent
Board (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company, as such terms
are used in Rule 14a-11 of Regulation 14A under the Exchange Act) shall be, for
purposes of this Agreement, considered as though such person were a member of
the Incumbent Board; or
(3) the stockholders of the Company approve a
merger or consolidation of the Company with any other corporation, other than
(A) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 80% of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation or
(B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 50% of the combined voting
power of the Company's then outstanding securities; or
(4) the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale or
disposition by the company of all or substantially all of the Company's assets.
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c. CONSTRUCTIVE TERMINATION shall occur if Consultant
resigns his employment within ninety (90) days of the occurrence of any of the
following events: (i) any reduction in the Base Salary of the Consultant; (ii) a
relocation (or demand for relocation) of Consultant's place of employment to a
location more than thirty-five (35) miles from Consultant's current place of
residence in the State of California without Consultant's written consent; or
(iii) a significant or material reduction in Consultant's job duties or level of
responsibility or the imposition of significant or material limitations on
Consultant's autonomy in his position..
d. TERMINATION FOR CAUSE means a termination of
Consultant's employment by the Company due to the Consultant's:
(1) Willful misconduct that has a material
adverse effect on the Company's operations, prospects, reputation or business;
(2) Conviction of a felony or any crime
involving moral turpitude; or
(3) Act of fraud against, or theft of property
belonging to, the Company.
e. TERMINATION WITHOUT CAUSE means a termination of
Consultant's employment by the Company for any reason other than those specified
in subsections 4(d)(1) through (3) above.
f. DISABILITY means that as a result of any physical
or mental injury or disability, Consultant is, in the sole opinion of the
Company's Board of Directors, unable to perform the essential functions of his
job, with or without reasonable accommodation for a period of more than ninety
(90) days in the aggregate in any twelve (12) month period. A notice will be
issued when the Company has reasonably determined that Consultant has become
unable to perform substantially his services and duties hereunder with or
without reasonable accommodation because of any physical or mental injury or
disability, and that it is reasonably likely that he will not be able to resume
substantially performing his services and duties on substantially the terms and
conditions as set forth in this Employment Agreement.
5. EMPLOYMENT TERM.
a. EMPLOYMENT TERM. The "Employment Term" means the
period commencing on the Effective Date and terminating on the earlier of one
(1) year from the Effective Date or as set forth in Section 5(c).
b. NOTICE OF RENEWAL. No less than sixty (60) days
prior to the natural expiration of the initial Employment Term of this
Consulting Agreement, and no less than sixty (60) days prior to each one year
anniversary thereafter, if applicable, the Company shall give Consultant written
notice of whether the Company will be seeking a one-year extension of
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Consultant's services beyond the initial Employment Term or subsequent one-year
period, if applicable.
c. TERMINATION OF EMPLOYMENT. During the initial
Employment Term, the Company may terminate Consultant's Employment only for
"Cause;" thereafter, the Company may terminate the Consultant's Employment at
any time and for any reason (or no reason), and with "Cause" or "Without Cause,"
by giving the Consultant notice in writing, subject to the severance payment
provisions set forth in Section 6. During the Employment Term, the Consultant
may terminate his Employment by giving the Company 30 days' advance notice in
writing. The Consultant's Employment shall terminate automatically in the event
of his death or on the date the Company provides notice of its reasonable
determination of Consultant's Disability.
6. TERMINATION BENEFITS.
a. AGREEMENT SUPERSEDES PREVIOUS SEVERANCE
PROVISIONS. The provisions of this Section 7 supersede the severance payment and
severance benefits provisions set forth in paragraphs 14 and 16 of Consultant's
January 21, 1999 Employment Agreement with Molecular BioSystems, Inc., but this
Section 6 does not supersede or limit the effect of paragraph 15 of that
agreement which provides as follows:
ACCELERATION OF STOCK OPTIONS IN THE EVENT OF A CHANGE OF
CONTROL. In the event of a Change of Control (whether or not
followed by termination of Consultant's employment), all stock
options under any Company [Molecular Biosystems, Inc.] stock
option plan which Consultant holds at the time of such Change
of Control shall become fully "vested" (i.e., immediately
exercisable). The Company [Molecular Biosystems, Inc.] shall
also extend the period of exercisability of those stock
options to the maximum of four years, or the natural
expiration of the stock options, whichever is earlier.
b. EFFECT OF TERMINATION FOR "CAUSE," DEATH OR
DISABILITY. During the Employment Term, upon (i) the termination of Consultant's
Employment for "Cause;" or (ii) Consultant's death or Disability pursuant to
subsection 4(e) of this Agreement, the Company shall pay (i) Consultant's Base
Salary through the effective date of the termination of Consultant's Employment;
(ii) all of Consultant's accrued but unused vacation time; and (iii)
Consultant's group health coverage, including e.g., eligible medical, dental and
vision insurance, through the last day of the calendar month during which the
termination occurs (group health coverage after such date being governed by
COBRA), but Consultant otherwise shall not be entitled to any severance benefits
or severance payments under any provision of this Agreement or under any other
plan.
c. EFFECT OF NON-RENEWAL OF AGREEMENT FOR SUCCESSIVE
TERM, OR CONSTRUCTIVE TERMINATION. In the event that (i) the Company does not
offer to renew this Agreement for a successive one-year (or greater) term prior
to the expiration of the Employment Term; (ii) Consultant declines the Company's
offer to renew this Agreement for a successive
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term; (iii) the Company terminates Consultant's employment "Without Cause" ;
(iv) the Consultant elects to terminate his employment during the initial
Employment Term; or (v) there is a Constructive Termination:
(1) The Company shall make the following
payments to Consultant (or his estate):
(A) ACCRUED SALARY AND BENEFITS. The Company
shall pay Consultant's Base Salary through the effective date of termination of
Consultant's Employment. In addition to the Severance Payments payable to a
Consultant as described below, he shall receive the following: (i) payment for
accrued but unused vacation time; and (ii) group health coverage, including
e.g., eligible medical, dental and vision insurance, through the last day of the
calendar month during which the termination occurs (group health coverage after
such date being governed by COBRA.)
(B) SEVERANCE PAYMENTS. The Company shall
pay to Consultant an amount equal to three (3) times the sum of the following:
(a) Consultant's annualized Base Salary in effect immediately prior to the
termination of employment, plus (b) the higher of (i) 100% of Consultant's
annual target bonus as determined under the Company's incentive compensation
plan or (ii) an average of the last three actual bonuses accorded to Consultant
by MBI. If the Company has not adopted an incentive compensation plan as
referred to in the foregoing sentence, then the amount determined under (ii)
shall govern.
(C) MANNER OF PAYMENT. Severance Payments
may be paid in accordance with regular payroll periods, in a single lump sum
payment, or any combination thereof, as deemed appropriate by the Company. Taxes
and other appropriate deductions will be withheld; however, 401k contributions
will not be allowed.
(2) The Company shall provide the following
benefits to Consultant:
(A) COBRA PREMIUMS. Assuming that the
Consultant is eligible under the Company's group health plan (and, if
applicable, the existing group health coverage for eligible dependents), such
coverage will end on the last day of the month in which the Consultant's
employment terminates. In the event Consultant does not qualify, or becomes
ineligible, for Company's medical, dental, vision, short or long term disability
or other health insurance coverage, the Company agrees to provide equivalent
continuing medical coverage (for Consultant and any eligible dependents), as
outlined herein this section, through an individual policy(s) or the equivalent,
as mutually agreed upon by the Consultant and the Company. The eligible
Consultant and his eligible dependents may then be eligible to elect temporary
continuation coverage under the Company's group health plan in accordance with
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"). The eligible Consultant (and, if applicable, his eligible dependents)
will be provided with a COBRA election form and notice which describe his rights
to continuation coverage under COBRA. If an eligible Consultant elects COBRA
continuation coverage, then the Company will pay for COBRA coverage (such
payments shall not include COBRA coverage with respect to the Company's Section
125 health care reimbursement plan) for (i) eighteen (18) months, or (ii) the
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maximum period permitted under COBRA. If Consultant does exhaust the applicable
COBRA period, the Company will reimburse Consultant for the cost of an
individual health insurance policy in an amount not to exceed the amount of the
monthly COBRA premium previously paid by the Company pursuant to this paragraph
for the remainder of the three year period following Consultant's termination of
employment. After such period of Company-paid coverage, the eligible Consultant
(and, if applicable, his eligible dependents) may continue coverage at his own
expense in accordance with COBRA or other applicable laws. No provision of this
agreement will affect the continuation coverage rules under COBRA. Therefore,
the period during which the eligible Consultant must elect to continue the
Company's group health plan coverage under COBRA, the length of time during
which COBRA coverage will be made available to the eligible Consultant, and all
the eligible Consultant's other rights and obligations under COBRA will be
applied in the same manner that such rules would apply in the absence of this
Plan. In the event, however, Consultant becomes eligible for benefits under
another plan prior to the expiration of the period in which the Company is
paying benefit premiums, the Company shall no longer be obligated to pay such
benefit premiums. The Consultant is required to notify the Company of
eligibility for benefits under another plan and is expected to enroll in the new
group plan at the first eligible opportunity unless Consultant chooses, at
Consultant's sole expense, to continue COBRA benefits through the Company. If
Consultant fails to notify the Company of Consultant's eligibility for
alternative benefits, the Company shall have the right to discontinue payment of
COBRA premiums upon thirty (30) days notice to Consultant. In no event shall a
cash payment be made to Consultant in lieu of the payment of COBRA premiums. The
payment of COBRA premiums by the Company shall not extend the maximum eligible
COBRA coverage period.
(B) OUTPLACEMENT SERVICES. The Company will
make available to Consultant, upon his/her request, outplacement services
provided by a reputable outplacement counselor selected by the Company for a
period of nine months following termination. The Company will assume the cost of
all such outplacement services. In no event will a cash payment be made in lieu
of outplacement benefits
7. SEVERANCE LIMITATIONS. The Severance Payments referred to
herein shall be reduced as necessary so that the present value, as determined in
accordance Section 280G(d)(4) of the Internal Revenue Code, of the sum of (i)
the Severance Payments and (ii) all other payments, if any, that must be taken
into account for purposes of computation under Section 280G(b)(2)(A)(ii) of the
Internal Revenue Code in respect of Consultant does not exceed 2.99 times
Consultant's base amount, as "base amount" is defined in Section 280G(b)(3) of
the Internal Revenue Code.
8. PROPRIETARY RIGHTS AND CONFIDENTIALITY. As a condition of
performing services under this Agreement, Consult shall execute the "Proprietary
Rights and Confidentiality Agreement," attached hereto as Exhibit B and made a
part hereof by this reference.
9. RETENTION BONUS PROGRAM. Consultant shall continue to
participate in, and the Company agrees to assume, the Retention Package bonus
program under the same terms as explained in the memorandum to Consultant dated
December 3, 1998 from Molecular Biosystems, Inc.
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10. REAL ESTATE. Consultant and MBI jointly own Consultant's
principal residence as tenants in common with respective percentage undivided
interests determined as follows: MBI's interest shall be calculated by dividing
$300,000 by the purchase price of the Property, the result to be expressed as a
percentage; Consultant's interest shall be 100 percent minus MBI's interest.
These respective percentage interests shall remain constant unless otherwise
agreed by the Surviving Corporation (as defined in the Merger Agreement) and
Consultant or unless recalculated as provided below. Notwithstanding the
foregoing, (1) Consultant shall maintain the Property and pay all expenses
associated with the Property, including but not limited to all mortgage
payments; upkeep; taxes; insurance; homeowner association fees, if any; repairs
and improvements (improvements shall be at Consultant's option), and utilities;
and (2) Consultant shall not alienate his interest in the Property without the
Surviving Corporation's consent. If the Consultant fails or refuses for any
reason to perform the obligations and make the payments called for in clause (1)
of the foregoing sentence, the Surviving Corporation may cause the obligations
to be performed and/or make the payments and, at is option, (x) deduct any
expenditures from the payment of any compensation to Consultant called for by
this Agreement on any reasonable basis, or (y) add the full amount of any
expenditures directly to its $300,000 initial equity and, using the sum as the
new numerator, recalculate the respective percentage undivided interests of the
parties using as a denominator the same purchase price of the property.
Consultant shall execute and cooperate in the recording of all documents
necessary to evidence the parties' agreement contained in this paragraph.
Within 30 days of termination of Consultant's employment for
any reason, the parties shall agree on a valuation of the Property. If they
cannot agree within that time, each party shall select a certified appraiser to
perform an appraisal of the property at each selecting party's expense, and the
appraisal shall be the average of the two appraisals. The valuation reached by
either method shall be called the Agreed Valuation. Within (a) three years from
the date of termination of Consultant's employment due to death or Disability or
(b) two years from the date of termination of Consultant's employment in the
event of a Termination With or Without Cause or resignation (including
resignation as a result of a Constructive Termination), Consultant (or his
estate) shall take such actions as are necessary to purchase the Surviving
Corporation's interest in the Property for a purchase price equal to MBI'
percentage interest in the property at the date of appraisal times the Agreed
Valuation. MBI shall cooperate with Consultant to sell the Property under such
circumstances if the Consultant is unwilling or unable to purchase the Surviving
Corporation's interest, and Consultant shall be deemed to have complied with his
purchase obligation under this Subparagraph if a purchasing third party pays MBI
the purchase price.
If the Consultant is deemed to receive taxable income for any
payment or reimbursement under this subparagraph, such payments will be grossed
up to account for all applicable income taxes.
11. PROHIBITION AGAINST ASSIGNMENT. Consultant agrees that
this Agreement and the rights, interests and benefits hereunder shall not be
assigned, transferred, pledged or hypothecated in any way by Consultant or any
executor, administrator, heir, legatee, distributee or any other person claiming
under Consultant by virtue of this Agreement and shall not be subject to
execution, attachment or similar process. Any attempt by Consultant to assign,
transfer, pledge or hypothecate or otherwise dispose of this Agreement or of
such rights, interests
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and benefits contrary to the foregoing provisions, or the levy of any attachment
or similar process thereon shall be null and void and without effect and shall
relieve the Company of any and all liability hereunder.
12. NOTICE. Any and all notices, designations, consents,
offers, acceptances or any other communication provided for herein shall be
given in writing by registered or certified mail, return receipt requested,
which shall be addressed, in the case of the Company, to its office in
Princeton, New Jersey, and in Consultant's case to his/her last known place of
residence as reflected on the Company's records.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between Consultant and the Company and contains all of the agreements
between the parties with respect to the subject matter hereof; except as
provided herein and except for the obligations set forth in paragraphs 5 through
13 of Consultant's January 21, 1999 Employment Agreement with MBI, this
Agreement supersedes any and all other agreements, either oral or in writing,
between the parties with respect to the subject matter hereof.
14. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of Consultant and the Company and their respective heirs,
legal representatives, executors, administrators, and successors.
15. NO OTHER AGREEMENTS. Consultant affirms that Consultant
has no agreement with any other party that would preclude his/her compliance
with his/her obligations under this Agreement as set forth above.
16. GOVERNING LAW. This Agreement shall be subject to and
governed by the laws of the State of California.
17. AMENDMENT OF AGREEMENT. No change or modification of this
Agreement shall be valid unless the same is in writing and signed by Consultant
and the Company. No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the person or party to be charged.
18. SEVERABILITY. If any portion or portions of this Agreement
shall be, for any reason, deemed to be invalid or unenforceable, the remaining
portion or portions shall nevertheless be valid, enforceable and carried into
effect, unless to do so would clearly violate the present legal and valid
intention of the parties hereto.
19. BREACH. In the event either party breaches this Agreement
and the other party prevails in an action to enforce the terms of this
Agreement, the losing party agrees to pay to the prevailing party all reasonable
attorneys' fees and costs incurred by the prevailing party in prosecuting such
action, and all damages suffered by the prevailing party.
20. HEADINGS. The headings of this Agreement are inserted for
convenience only and are not to be considered in construction of the provisions
hereof.
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21. WAIVER OR BREACH. The waiver by either of the parties
hereto of any breach of any provision hereof shall not be construed to be a
waiver of any succeeding breach of that provision or a waiver of any other
provision of this Agreement.
22. ARBITRATION OF DISPUTES. Any controversy, dispute and/or
claim in any manner arising out of or relating to this Agreement; any claim,
including but not limited to any claim of race, age, national origin, religion,
sex, pregnancy, family leave, harassment, sexual orientation, or disability
discrimination; defamation; infliction of emotional distress; breach of
contract; violation of public policy or statute; or wrongful termination arising
out of the voluntary or involuntary termination of the Employment, shall be
settled solely by final and binding arbitration in accordance with the
Employment Dispute Resolution Regulations of the American Arbitration
Association. Any arbitration proceeding shall take place in the city of the
Employee's residence. Judgment on any decision rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The Employee and the Company
shall each pay the fees of his or its own attorneys, the expenses of his or its
witnesses and all other expenses connected with presenting his or its case in
arbitration. All other costs of the arbitration shall be determined by the
arbitrator. The arbitrator who hears and decides any controversy between the
Consultant and the Company, shall in determining a remedy, have jurisdiction and
authority to issue any order or award avaliable in a court of law.
23. GENERIC DRUG ENFORCEMENT ACT CERTIFICATION. The
undersigned, certifies that he (1) has never been charged with or convicted of a
federal felony for conduct relating to the development, approval, or regulation
of any drug product or device regulated by the United States Food and Drug
Administration, and (2) has never been debarred or subject to a debarment
proceeding under the Generic Drug Enforcement Act of 1992.
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WHEREAS, the parties have executed this Agreement as of the
dates set forth below.
Dated: ____________________________ PALATIN TECHNOLOGIES, INC.
By: ________________________________
Name:
Title:
Dated: "CONSULTANT"
By: ________________________________
Bobba Venkatadri
<PAGE>
EXHIBIT A
- - In the event that he is chosen to be an MBI Director (as defined in the
Merger Agreement) participate in Company Board and Annual Meetings.
- - Works on successful integration of MBI (as surviving corporation) as a
wholly owned subsidiary of Palatin.
- - Assist the Company with respect to negotiating settlements and defending
litigations involving MBI.
- - Identify company and product opportunities for MBI (as surviving
corporation) and work closely with the CEO and corporate development to
evaluate and pursue.
- - Utilize international experience to assist company in European and Asian
partnering opportunities (including, among others, the Chugai
relationship).
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EXHIBIT B
PROPRIETARY RIGHTS AND CONFIDENTIALITY AGREEMENT
In return for new or continued employment by Company,
Consultant acknowledges and agrees as follows:
1. For the purposes of this Agreement:
a. "Information" shall mean any and all discoveries,
ideas, facts, or any other information relating to the operation of the
Company's business, of whatever type and in whatever form, which is disclosed or
otherwise made available to Consultant by Company in confidence, including, but
not limited to, all information relating to personnel, sales, customers and
financial and scientific matters of Company, and any other discoveries, ideas,
business plans, or facts relating to any of the foregoing, whether developed by
Consultant or by others. Except that "Information" does not include information
that is generally known by the public or with in the industry of the Company
through no wrongful act of the Consultant;
b. "Trade Secret" shall mean any and all Information
that derives independent economic value, actual or potential, from not being
generally known to persons who can obtain economic value from its disclosure or
use, and that is the subject of reasonable efforts by Company to maintain its
secrecy.
c. "Inventions" shall mean designs, trademarks,
discoveries, formulae, processes, manufacturing techniques, Trade Secrets,
Information, improvements, ideas, inventions or copyrightable works.
2. Consultant understands that any and all Information and
Trade Secrets are received or developed by Consultant and are disclosed to
Consultant in confidence, and are to be used only for the purposes for which
they are provided. During the term of Consultant's employment with Company or
thereafter, Consultant shall not, directly or indirectly, except as required by
the normal business of Company or expressly consented to in writing by the Board
of Directors of Company:
a. disclose, publish or make available any
Information or Trade Secrets, other than to a Consultant, officer or director of
Company who, in the reasonable exercise of Consultant's judgment, needs to know
such Information or Trade Secrets in order to perform his or her duties to
Company;
b. sell, transfer or otherwise use or exploit or
permit the sale, transfer, use or exploitation of the Information or Trade
Secrets for any purposes other than those for which they were provided;
c. remove from Company's premises or retain upon
termination any Information or Trade Secrets, any copies thereof or any tangible
or retrievable materials containing or constituting Information or Trade
Secrets.
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3. Upon termination of Consultant's employment or upon request
by Company, Consultant shall return to Company all tangible forms of Information
and Trade Secrets.
4. Consultant agrees that the Company has invested substantial
time, effort and money in attracting and developing a customer base and
assembling Company's staff of personnel. Accordingly, Consultant agrees that all
customers of Company, which Consultant now or hereafter services during
Consultant's employment by Company and all prospective customers from whom
Consultant has solicited business while in the employ of Company, shall be
solely the customers of Company. Consultant agrees that Consultant shall not,
for a period of one year immediately following the termination of employment
with Company, either directly or indirectly, solicit business, as to products or
services competitive with those of the Company, from any of the Company's
customers and shall not seek to induce any of the Company's customers to cease
using Company's products or services. Consultant also agrees that during
employment and for one year after termination of employment, Consultant shall
not directly or indirectly induce or solicit any of the Company's employees to
leave their employment with Company.
5. Consultant agrees to disclose promptly to the Company any
and all Inventions, whether or not patentable and whether or not reduced to
practice, conceived or learned by Consultant during the period of employee's
employment, either alone or jointly with others, which relate to or result from
the actual or anticipated business, work, research or investigations of the
Company, or which result, to any extent, from use of the Company's premises or
property. Consultant agrees to deliver to Company any drawn, written or
computer-generated materials and any models relating to Inventions, to cooperate
fully during and after employment in the securing of patent or copyright
protection or other similar rights in any countries and in giving evidence and
testimony and in executing related papers as requested by Company. Consultant
understands that Company is the sole owner of any and all property rights in
Inventions, including, but not limited to, the right to use, sell, license or
otherwise transfer or exploit the Inventions, and the right to make such changes
in them and the uses thereof as Company may from time to time determine.
Consultant agrees to disclose and assign to Company, without further
consideration, Consultant's entire right, title, and interest (throughout the
United States and in all foreign countries) free and clear of all liens and
encumbrances, in and to all Inventions, which shall be the sole property of
Company, whether or not patentable. Consultant also agrees to cooperate with
Company both during and after employment in obtaining and enforcing patents,
copyrights, and other protection of Company's rights in Inventions. As provided
in section 2870 of the California Labor Code, this Section 4 does not apply to
any Inventions:
a. for which no equipment, supplies, facility, or
Trade Secrets of Company were used;
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b. which were developed entirely on Consultant's own
time; and
c. which do not relate at the time of conception or
reduction to practice to Company's current business or its actual or
demonstrably anticipated research or development, or which do not result from
any work performed by Consultant for Company.
6. Consultant certifies that Consultant has no continuing
obligations with respect to the assignment of Inventions or rights to
Inventions, nor does Consultant claim any previous, unpublished Inventions
within the scope of this Agreement as Consultant's own, except for the
Inventions, if any, which Consultant has listed in Appendix A to this Agreement.
7. Consultant certifies that there is no other contract or
duty on Consultant's part that would interfere with Consultant's ability to
provide services to Company. Consultant agrees that, in performing work for
Company, Consultant will not knowingly use any patented inventions, trade
secrets, confidential information or proprietary information obtained from third
parties, including any prior employer or any other organization or individual.
Consultant agrees not to use copyrighted materials, nor any portion thereof, of
any other company or person while writing computer programs, manuals or any
other materials for Company, and that Consultant will not bring onto the
premises of Company any unpublished document or other property containing
proprietary information or trade secrets belonging to Consultant's former or
concurrent employers or companies, unless consented to in writing by said
employers or companies.
8. This Agreement does not constitute a contract of employment
and does not in any way restrict Consultant's right or the right of Company to
terminate Consultant's employment.
9. If any provision of this Proprietary Rights and
Confidentiality Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions shall, nevertheless,
continue in full force and effect without being impaired or invalidated in any
way.
10. This Proprietary Rights and Confidentiality Agreement
constitutes the entire agreement between Company and Consultant pertaining to
the protection of Information and Trade Secrets and the assignment of
Inventions, and supersedes all prior or contemporaneous written or verbal
agreements and understandings with Consultant in connection with the subject
matter hereof. Any modification of this Agreement will be effective only if it
is in writing and signed by the parties to be bound thereby.
11. Consultant shall, at any time during employment or
thereafter, upon request and without further compensation therefor, but with all
reasonable expenses incurred by Consultant to be reimbursed, do all lawful acts,
including but not limited to the execution of papers and oaths, the giving of
testimony, and the obtaining of evidence that in the opinion of the Company, its
successors or assigns, may be necessary or desirable for obtaining, sustaining,
reissuing or enforcing Letters Patent in the United States and throughout the
world for said Inventions, and for perfecting, recording or maintaining the
title of the Company, its successors
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and assigns, to said Inventions and to any patent applications made and any
Letters Patent granted for said Inventions in the United States and throughout
the world.
12. The Company shall have the sole discretion whether to
obtain, maintain, modify or enforce any domestic or foreign patent for said
Inventions assigned to the Company pursuant to this Agreement. The Company is
free to enter into any licensing or assignment agreement with any third party or
to use whatever means it deems best to develop, promote or market said
Inventions assigned to the Company pursuant to this Agreement or any domestic or
foreign patent thereof.
13. As to any Inventions which were made, developed,
perfected, devised, conceived or reduced to practice by Consultant during the
period of his/her employment by the Company, and up to and including a period of
twelve (12) months after termination of his/her employment, but which are
claimed for any reason to belong to an entity or person other than the Company,
Consultant will promptly disclose the same in writing to the Company and shall
not disclose the same to others if the Company, within twenty (20) days
thereafter, shall claim ownership of such Inventions under the terms of this
Agreement.
14. Consultant shall keep complete, accurate and authentic
accounts, notes, data and records of any and all of said Inventions in the
manner and form requested by the Company. Such accounts, notes, data and
records, including all copies thereof, shall be the property of the Company, and
upon its request, Consultant will promptly surrender the same to it, or if not
previously surrendered, Consultant will promptly surrender the same to the
Company at the conclusion of his/her employment.
15. Consultant agrees that all accounts, notes, data sketches,
drawings and other documents and records, and all material and physical items of
any kind, including all reproductions and copies thereof, which relate in any
way to the business, products, practices or techniques of the Company or contain
Confidential Information, made by Consultant or that come into Consultant's
possession by reason of his/her employment are the property of the Company and
shall be promptly surrendered to the Company at the conclusion of Consultant's
employment.
Dated:____________________ ______________________________
Consultant
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Appendix A
_________________ I have made or improved the following Inventions and claim
sole right to them. I include below the names of co-inventors or employers to
whom I owe a continuing obligation with respect to these Inventions.
Dated:____________________ ______________________________
Consultant
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EXHIBIT D
MATERIAL TERMS OF AMENDMENTS TO EMPLOYMENT AGREEMENTS
Palatin currently has employment agreements with Messrs. Quilty, Spana,
Wills and Putnam. These agreements will each be amended to reflect the following
changed terms:
QUILTY
Base Salary not less than current salary with appropriate annual merit increases
as determined by Palatin Board of Directors.
Anti-dilution provisions will be permanently waived
Change of control provisions as they relate to the instant transaction will be
waived
Change of control provisions will be amended to reflect that if at the end of
the one year anniversary of the Effective Date, but before the end of the third
(3) year with Palatin, he chooses to terminate his employment, he shall be
entitled to a three-year severance package (Change of Control). If Palatin
terminates his employment at any time between the Effective Date and three years
from the Effective Date, he shall be entitled to his three year severance
package (Change of Control).
If revised change of control provisions become applicable, all options
accelerate and vest and he will have four years to exercise.
Employee will devote as much time as is reasonably necessary to adequately
perform his duties at Palatin. Any employment outside of Palatin (other than
acting as Chairman or director of an entity, so long as doing so does not
involve significant time commitment and does not involve participation in day to
day activities of such entity) will be terminated by December 31, 2000.
All other material terms of existing employment agreement will remain the same
SPANA
Base Salary not less than current salary with appropriate annual merit increases
as determined by Palatin Board of Directors.
Anti-dilution provisions will be permanently waived
Change of control provisions as they relate to the instant transaction will be
waived
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Change of control provisions will be amended to reflect that if at the end of
the one year anniversary of the Effective Date, but before the end of the third
(3) year with Palatin, he chooses to terminate his employment, he shall be
entitled to a two-year severance package (Change of Control). If Palatin
terminates his employment at any time between the Effective Date and three years
from the Effective Date, he shall be entitled to his two-year severance package
(Change of Control).
If revised change of control provisions become applicable, all options
accelerate and vest and he will have four years to exercise.
All other material terms of existing employment agreement will remain the same
WILLS
Base salary will increase to an amount not less than $180,000 with appropriate
annual merit increases as determined by Palatin Board of Directors
Anti-dilution provisions will be permanently waived
Change of control provisions as they relate to the instant transaction will be
waived
Change of control provisions will be amended to reflect that if at the end of
the one year anniversary of the Effective Date, but before the end of the third
(3) year with Palatin, he chooses to terminate his employment, he shall be
entitled to a two-year severance package (Change of Control). If Palatin
terminates his employment at any time between the Effective Date and three years
from the Effective Date, he shall be entitled to his two year severance package
(Change of Control).
If revised change of control provisions become applicable, all options
accelerate and vest and he will have four years to exercise.
Employee will devote as much time as is reasonably necessary to adequately
perform his duties at Palatin. Any employment outside of Palatin (other than
acting as Chairman or director of an entity, so long as doing so does not
involve significant time commitment and does not involve participation in day to
day activities of such entity) will be terminated by December 31, 2000.
All other material terms of existing employment agreement will remain the same
PUTNAM
Base Salary not less than current salary with appropriate annual merit increases
as determined by Palatin Board of Directors.
Anti-dilution provisions will be permanently waived
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Change of control provisions as they relate to the instant transaction will be
waived
Change of control provisions will be amended to reflect that if at the end of
the one year anniversary of the Effective Date, but before the end of the third
(3) year with Palatin, he chooses to terminate his employment, he shall be
entitled to a two-year severance package (Change of Control). If Palatin
terminates his employment at any time between the Effective Date and three years
from the Effective Date, he shall be entitled to his two year severance package
(Change of Control).
If revised change of control provisions become applicable, all options
accelerate and vest and he will have four years to exercise.
All other material terms of existing employment agreement will remain the same
3
