UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED DECEMBER 31, 1998
Commission File Number 0-15609
AGOURON PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 33-0061928
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
10350 North Torrey Pines Road, La Jolla, California 92037-1020
(Address of principal executive offices) (Zip Code)
(619) 622-3000
(Registrant's telephone number, including area code)
NONE
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days:
Yes X No ___
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date: As of February 3, 1999, the
registrant had approximately 31,947,000 shares of Common Stock, no par value,
outstanding.
<PAGE>
AGOURON PHARMACEUTICALS, INC.
INDEX
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C> <C>
PART I. Financial Information
ITEM 1. Financial Statements
Consolidated Balance Sheet - 3
December 31, 1998 and June 30, 1998
Consolidated Statement of Income - 4
Three and Six Months Ended
December 31, 1998 and 1997
Consolidated Statement of Cash Flows- 5
Six Months Ended December 31, 1998 and 1997
Notes to Consolidated Financial Statements 6
ITEM 2. Management's Discussion and Analysis of Financial 10
Condition and Results of Operations
PART II. Other Information
ITEM 1. Legal Proceedings 14
ITEM 2. Changes in Securities 14
ITEM 3. Defaults Upon Senior Securities 14
ITEM 4. Submission of Matters to a Vote of Security Holders 15
ITEM 5. Other Information 16
ITEM 6. Exhibits and Reports on Form 8-K 16
Signature 17
</TABLE>
2
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
AGOURON PHARMACEUTICALS, INC.
CONSOLIDATED BALANCE SHEET
(Dollars in thousands)
<TABLE>
<CAPTION>
December 31, June 30,
1998 1998
------------ --------
ASSETS (unaudited)
Current assets:
<S> <C> <C>
Cash and cash equivalents $ 34,547 $ 19,098
Short-term investments 39,187 68,025
Accounts receivable, net 68,560 51,341
Inventories 104,419 103,706
Current deferred tax assets 594 564
Other current assets 2,552 5,247
-------------- -------------
Total current assets 249,859 247,981
Property and equipment, net of accumulated
depreciation and amortization of $30,431and $24,321 46,557 47,212
Deferred tax assets 71,680 64,644
Purchased intangibles 3,200 3,500
-------------- -------------
$ 371,296 $ 363,337
============== =============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 24,858 $ 44,393
Accrued liabilities 43,577 35,356
Deferred revenue and advances 17,017 23,563
Current deferred tax liabilities 2,447 1,139
Loan payable and current portion of long-term debt 7,880 15,802
-------------- -------------
Total current liabilities 95,779 120,253
-------------- -------------
Long-term liabilities:
Long-term debt, less current portion 6,375 5,892
Accrued rent 864 1,023
-------------- -------------
Total long-term liabilities 7,239 6,915
-------------- -------------
Stockholders' equity:
Common stock, no par value, 75,000,000 shares authorized,
31,738,847 and 31,053,380 shares issued and outstanding 366,626 348,482
Accumulated other comprehensive income (expense) (161) 384
Accumulated deficit (98,187) (112,697)
-------------- -------------
Total stockholders' equity 268,278 236,169
-------------- -------------
$ 371,296 $ 363,337
============== =============
</TABLE>
See accompanying notes to consolidated financial statements.
3
<PAGE>
AGOURON PHARMACEUTICALS, INC.
CONSOLIDATED STATEMENT OF INCOME
(Unaudited)
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
-------------------------- --------------------------
December 31, December 31,
-------------------------- --------------------------
1998 1997 1998 1997
----------- ----------- ----------- -----------
Revenues:
<S> <C> <C> <C> <C>
Product sales $ 158,193 $ 91,800 $ 292,063 $ 171,302
Contracts 5,416 12,462 11,433 22,465
Royalties and license fees 7,100 400 12,150 2,752
----------- ----------- ----------- ----------
170,709 104,662 315,646 196,519
----------- ----------- ----------- ----------
Operating expenses:
Cost of product sales 74,241 37,942 131,286 72,015
Research and development 39,345 30,322 76,709 57,254
Selling, general and administrative 20,701 14,045 37,843 26,591
Royalties 28,085 15,432 53,978 28,808
----------- ----------- ----------- ----------
162,372 97,741 299,816 184,668
----------- ----------- ----------- ----------
Operating income 8,337 6,921 15,830 11,851
----------- ----------- ----------- ----------
Other income (expenses):
Interest and other income 851 1,488 1,887 2,769
Interest expense (223) (206) (646) (367)
----------- ----------- ----------- ----------
628 1,282 1,241 2,402
----------- ----------- ----------- ----------
Income before income taxes 8,965 8,203 17,071 14,253
Income tax provision 1,345 3,281 2,561 5,701
----------- ----------- ----------- ----------
Net income $ 7,620 $ 4,922 $ 14,510 $ 8,552
=========== =========== =========== ==========
Earnings per share:
Basic $ .24 $ .16 $ .46 $ .28
=========== ========== =========== ==========
Diluted $ .22 $ .15 $ .43 $ .26
=========== ========== =========== ==========
Shares used in calculation of:
Basic 31,410 30,520 31,269 30,242
Diluted 34,237 33,238 33,661 33,298
</TABLE>
See accompanying notes to consolidated financial statements.
4
<PAGE>
AGOURON PHARMACEUTICALS, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
(Dollars in thousands)
<TABLE>
<CAPTION>
Six Months Ended
--------------------------
December 31,
--------------------------
1998 1997
---------- -----------
<S> <C> <C>
Cash flows from operating activities:
Cash received from product sales, contracts, royalties
and license fees $ 291,881 $ 197,268
Cash paid to suppliers, employees and service providers (302,271) (173,520)
Interest received 1,859 2,819
Interest paid (646) (367)
----------- -----------
Net cash provided (used) by operating activities (9,177) 26,200
----------- -----------
Cash flows from investing activities:
Proceeds from maturities/sales of short-term investments 44,053 56,824
Purchases of short-term investments (15,760) (105,707)
Purchases of property and equipment (6,053) (9,313)
----------- ------------
Net cash provided (used) by investing activities 22,240 (58,196)
----------- -----------
Cash flows from financing activities:
Net proceeds from issuance of common stock 9,825 9,417
Proceeds from credit line 30,000 12,600
Principal payments on credit line, long-term debt
and capital leases (37,439) (12,972)
----------- -----------
Net cash provided (used) by financing activities 2,386 9,045
----------- -----------
Net increase (decrease) in cash and cash equivalents 15,449 (22,951)
Cash and cash equivalents at beginning of period 19,098 52,484
----------- -----------
Cash and cash equivalents at end of period $ 34,547 $ 29,533
=========== ===========
Reconciliation of net income to net cash provided (used) by operating
activities:
Net income $ 14,510 $ 8,552
Depreciation and amortization 7,008 3,968
Provision for deferred income taxes 2,561 5,701
Net (increase) decrease in accounts receivable
and other current assets (14,524) (12,373)
Net (increase) decrease in inventories (713) (20,119)
Net increase (decrease) in accounts payable, accrued liabilities,
deferred revenue and advances, and other liabilities (18,019) 40,471
----------- -----------
Net cash provided (used) by operating activities $ (9,177) $ 26,200
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
5
<PAGE>
AGOURON PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(December 31, 1998)
NOTE 1 - THE COMPANY AND ITS SIGNIFICANT ACCOUNTING POLICIES
THE COMPANY
Agouron Pharmaceuticals, Inc. ("Agouron" or the "Company") was organized and
incorporated in California in June 1984. Agouron is an integrated pharmaceutical
company committed to the discovery, development, manufacturing and marketing of
innovative therapeutic products engineered to inactivate proteins which play key
roles in cancer, AIDS and other serious diseases. The Company, through its own
sales and marketing organization, is currently marketing in the United States
its first drug, VIRACEPT(R) (nelfinavir mesylate) for treatment of HIV
infection. The Company is also conducting pivotal phase II/III clinical trials
for AG3340 for treatment of lung and prostate cancer. In addition, Agouron has
initiated a phase II/III pivotal clinical trial of REMUNE(TM) (AG1661), an
immune-based therapeutic agent for treatment of HIV infection and AIDS being
co-developed by Agouron and The Immune Response Corporation ("IRC"). Further,
the Company has a number of programs in progress for discovery or development of
other new drugs in the fields of cancer, viral disease and other serious
diseases. The Company is also using the proprietary core drug discovery
technology of Alanex Corporation ("Alanex"), a wholly-owned subsidiary of the
Company, to accelerate the steps necessary to discover small-molecule drug
candidates, from the initial identification of compounds that exhibit activity
against selected biological targets to the progression of these compounds to
drug candidates for human clinical trials.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company and
its wholly-owned subsidiaries. All significant intercompany accounts and
transactions have been eliminated.
FINANCIAL STATEMENTS AND ESTIMATES
The consolidated balance sheet as of December 31, 1998 and the consolidated
statements of income and cash flows for the three and six-month periods ended
December 31, 1998 and 1997 have been prepared by the Company and have not been
audited. Such financial statements, in the opinion of management, include all
adjustments necessary for their fair presentation in conformity with generally
accepted accounting principles. These financial statements should be read in
conjunction with the financial statements and notes thereto included in the
Company's June 30, 1998 Annual Report on Form 10-K. Certain information and
footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been condensed or
omitted pursuant to the Securities and Exchange Commission rules and
regulations. Interim results are not necessarily indicative of results for the
full year.
6
<PAGE>
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets, liabilities, revenues and expenses and
related disclosures as of the date of the financial statements. Actual results
could differ from such estimates.
INVENTORIES
The inventories consist of the following components:
<TABLE>
<CAPTION>
December 31, June 30,
1998 1998
------------- -------------
<S> <C> <C>
Raw materials and work in process $ 99,100 $ 95,517
Finished goods 5,319 8,189
------------- -------------
$ 104,419 $ 103,706
============= =============
</TABLE>
PRODUCT SALES
The Company has the exclusive right to market its anti-HIV drug VIRACEPT in the
United States and Canada. Accordingly, the Company ships VIRACEPT to wholesalers
throughout the United States and certain provinces of Canada, and recognizes
sales revenue upon shipment. Sales are reported net of discounts, rebates,
chargebacks and product returns.
Also included in product sales for the three and six-month periods ended
December 31, 1998 are approximately $45,593,000 and $72,276,000 of sales (at
cost plus contractually determined mark-ups) to F. Hoffmann-La Roche Ltd
("Roche") of clinical and commercial drug supplies to be used by Roche in its
licensed territory. For the three and six-month periods ended December 31, 1997,
sales to Roche were approximately $7,292,000 and $11,420,000. The Company
receives a royalty on Roche's subsequent commercial sales of such drug supplies.
ROYALTIES AND LICENSE FEES
Royalty revenues are recognized based on estimated and actual sales of licensed
products in licensed territories.
For the three and six-month periods ended December 31, 1998, the Company has
accrued and/or received royalties of approximately $6,800,000 and $11,725,000
resulting from estimated and actual net sales of VIRACEPT by Roche within its
licensed territory. For the three and six-month periods ended December 31, 1997,
Roche royalties were approximately $400,000 and $752,000.
License fees are recognized as revenue when earned as generally evidenced by
certain factors including: receipt of such fees, satisfaction of any performance
obligations and the non-refundable nature of such fees. In August 1998, the
Company and JT granted Roche certain exclusive rights to VIRACEPT in Mexico. For
such rights, the Company realized as revenue a license fee of $125,000 from
Roche. In December 1998, the Company granted to Zarix
7
<PAGE>
Limited, a biopharmaceutical development company, certain exclusive rights to
THYMITAQ, an anti-cancer drug. For such rights, the Company realized as revenue
a license fee of $300,000.
INCOME TAX PROVISION
The Company records a provision for current and deferred income taxes using the
liability method.
EARNINGS PER SHARE
Basic earnings per share is based upon the weighted average number of common
shares outstanding during a period. Diluted earnings per share is based upon the
weighted average number of common shares outstanding and dilutive common stock
equivalents during a period. Common stock equivalents are options under the
Company's stock option plans which are included in the earnings per share
computation under the treasury stock method and common shares expected to be
issued under the Company's employee stock purchase plan.
Common stock equivalents of approximately 2,827,000 and 2,392,000 shares for the
three and six-month periods ended December 31, 1998 were used to calculate
diluted earnings per share. For the three and six-month periods ended December
31, 1997, common stock equivalents of approximately 2,718,000 and 3,056,000
shares were used to calculate diluted earnings per share. There are no
reconciling items in calculating the numerator for basic and diluted earnings
per share for any of the periods presented.
CERTAIN CONCENTRATIONS
A portion of the Company's research and development expenditures are related to
programs funded in part by corporate partners. The termination of such
collaborative research and development programs could result in the absence of
any prospective funding for such programs and the need to evaluate the level of
future program spending, if any.
NOTE 2 - COMPREHENSIVE INCOME
As of July 1, 1998, the Company adopted Statement of Financial Accounting
Standards No. 130 ("FAS 130"), "Reporting Comprehensive Income," which
establishes new rules for the reporting and display of comprehensive income and
its components. FAS 130 requires unrealized gains and losses on the Company's
available-for-sale securities to be included in other comprehensive income. The
Company presents such information in its statement of stockholders' equity on an
annual basis and in a footnote in its quarterly reports. During the three and
six-month periods ended December 31, 1998, total comprehensive income was
$7,227,000 and $13,965,000, respectively. During the three and six-month periods
ended December 31, 1997, total comprehensive income was $4,922,000 and
$8,552,000.
8
<PAGE>
NOTE 3 - SUBSEQUENT EVENT
On January 26, 1999, the Company announced that it had signed a definitive
agreement to merge with Warner-Lambert Company, a worldwide company devoted to
discovering, developing, manufacturing, and marketing quality pharmaceuticals,
consumer healthcare, and confectionary products. Warner-Lambert employs more
than 40,000 people worldwide. The proposed merger, which is subject to approval
by Agouron's shareholders and federal regulators, will be treated as a "pooling
of interests" for accounting purposes. If approved, each share of Agouron common
stock will be converted into the right to receive that number of shares of
Warner-Lambert common stock equal to $60.00 divided by an average closing sales
price of Warner-Lambert common stock prior to the effective date of the merger,
except that such ratio will not be less than .8108 or more than .9300.
9
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
When used in this discussion, the words "believes," "anticipates" and similar
expressions are intended to identify forward-looking statements. Such statements
are subject to certain risks and uncertainties (including those associated with
continued growth of VIRACEPT sales, the impact of competitive products and
regulatory approvals) which could cause actual results to differ materially from
those projected. See "Important Factors Regarding Forward-Looking Statements"
attached as Exhibit 99 to the Company's Annual Report on Form 10-K for the year
ended June 30, 1998 and incorporated herein by reference. Readers are cautioned
not to place undue reliance on these forward-looking statements which speak only
as of the date hereof. The Company undertakes no obligation to publicly release
the result of any revisions to these forward-looking statements which may be
made to reflect events or circumstances after the date hereof or to reflect the
occurrence of unanticipated events.
OVERVIEW
The Company is committed to the discovery, development, manufacturing and
marketing of human pharmaceuticals targeting cancer, AIDS, and other serious
diseases. Operations to date have been principally funded from the Company's
equity-derived working capital, various collaborative arrangements and, most
recently, from the gross margin contribution of VIRACEPT. The net income
reported in the three and six-month periods ended December 31, 1998 and 1997 is
principally due to the commercialization of VIRACEPT while the Company's prior
net operating losses reflect primarily the result of its independent research
and substantial investment in the clinical and commercial development of
VIRACEPT and certain anti-cancer compounds.
In March 1997, VIRACEPT was approved for marketing in the United States. In
January 1998, March 1998 and August 1998, VIRACEPT was approved for marketing in
Europe, Japan and Canada, respectively. For the three and six-month periods
ended December 31, 1998, due principally to the increasing product contribution
from VIRACEPT sales, license fees and royalties, the Company realized a net
income of $7,620,000 and $14,510,000.
RESULTS OF OPERATIONS
PRODUCT SALES
Product sales for the three and six-month periods ended December 31, 1998 were
approximately $158,193,000 and $292,063,000, which included sales in North
America of $112,600,000 and $219,787,000, respectively. The Company anticipates
that VIRACEPT sales in North America will meet or exceed $440,000,000 in fiscal
1999.
10
<PAGE>
CONTRACT REVENUES
Collaborative research and development agreements with Japan Tobacco Inc.
("JT"), Hoffmann-La Roche Inc. and F. Hoffmann-La Roche Ltd (collectively "HLR")
accounted for substantially all of the Company's contract revenues for the three
and six-month periods ended December 31, 1998 and 1997. Total contract revenues
for the three and six-month periods decreased approximately 57% and 49% due
principally to termination of the HLR collaboration in fiscal 1998.
ROYALTIES AND LICENSE FEES
Royalty revenues of approximately $6,800,000 and $11,725,000 have been
recognized in the three and six-month periods ended December 31, 1998 based on
estimated and actual Roche sales of VIRACEPT in its licensed territory.
Royalties for the three and six-month periods increased from the prior year
periods due to growth in European market share and sales volume.
COST OF PRODUCT SALES
The aggregate cost of product sales as a percentage of product sales was
approximately 47% and 45% for the three and six-month periods ended December 31,
1998. The aggregate cost of product sales as a percentage of product sales was
approximately 41% and 42% for the three and six-month periods ended December 31,
1997. Gross margins on North America commercial sales were approximately 72% and
71% for the three and six-month periods ended December 31, 1998. The Company
anticipates that gross margins on North America sales will approximate 72% for
fiscal 1999.
RESEARCH AND DEVELOPMENT
Research and development spending for the current three and six-month periods
increased 30% and 34% from the prior year periods due generally to costs
associated with increasing average staff levels and staff related spending, and
increasing expenses associated with the clinical development of certain of the
Company's anti-viral and anti-cancer compounds.
In fiscal 1997, the Company acquired Alanex Corporation ("Alanex", a research
company) and recorded a write-off of $57,500,000 (or 92% of the purchase price,
including transaction costs), representing the values determined by management
to be attributable to the in-process technology purchased. Of the amount written
off, approximately 95% was attributed to and supported by a discounted cash flow
analysis of three drug discovery programs which anticipated revenues beginning
in 2003. Approximately 40% of the value was attributed to a compound with
obesity and cardiovascular indications, 30% for compounds with depression and
anxiety indications and 25% for a program to treat endometriosis and sex-hormone
dependent tumors. The Company believes that the allocations and aggregate values
attributable to these programs were reasonable and appropriate based on the
commercial potential, beginning in 2003, of these three drug discovery programs,
which remain the subject of research or development efforts at December 31,
1998.
11
<PAGE>
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative costs for the current three and six-month
periods increased by 47% and 42% from the prior year periods due principally to
increasing sales and marketing activities and the support of VIRACEPT phase IV
marketing studies.
ROYALTIES
The Company's obligation to share VIRACEPT profits with JT is reflected in
royalty expense for the three and six-month periods ended December 31, 1998 and
represents approximately 25% of North America product sales. Royalty expense in
the prior year periods was approximately 20% of North America product sales.
INCOME TAX PROVISION
The income tax provision in the current quarter has been computed using an
effective, combined federal and state rate of 15%. The cash obligation of such
provision has been mostly offset by the utilization of deductions generated by
the exercise of stock options and/or the utilization of deferred tax benefits
(comprised mostly of net operating loss carryforwards and research tax credits).
YEAR 2000
The Year 2000 issue results from computer programs and systems that were created
to accept only two digit dates. Such systems may not be able to distinguish 20th
century dates from 21st century dates. This could result in miscalculations and
system failures that could inhibit a company's ability to engage in normal
business activities.
The Company has established a Year 2000 project team and is utilizing a
multi-phased approach to address this issue. The phases included in the
Company's plan are the awareness, assessment, remediation, testing,
implementation, and contingency planning phases. The Company has completed the
awareness and assessment phases and has begun to correct and replace those
systems that are not Year 2000 compliant. The Company expects to complete
internal remediation efforts by the end of fiscal year 1999, and to complete the
validation and contingency phases by the end of calendar 1999.
The Company has initiated communications with all of its significant external
business partners to determine the extent to which the Company is vulnerable to
their failures and to ascertain Year 2000 compliance and risk. The Company
intends to monitor the progress of these significant business partners and will
develop contingency plans in the event that a significant exposure is
identified. While the Company is not presently aware of any such significant
exposure, there can be no guarantee that the systems of the third-parties on
which the Company relies will be Year 2000 compliant, or, that a failure to
remediate by another company would not have a material adverse effect on the
Company.
12
<PAGE>
The Company estimates that the total cost of its Year 2000 project will not
exceed $1,000,000, including costs already incurred. The anticipated cost of the
project and the dates on which the Company expects to complete major milestones
are based on management's best estimates using information that is currently
available. Based on its current estimates, the Company does not anticipate that
the costs associated with the Year 2000 project will have a material adverse
effect on the Company's business, financial position, or results of operation.
LIQUIDITY AND CAPITAL RESOURCES
Prior to fiscal 1998, the Company has relied principally on equity financings
and corporate collaborations to fund its operations and capital expenditures.
Beginning in fiscal 1998, the gross margin from commercial sales of VIRACEPT
contributed significantly to the Company's overall working capital requirements.
Commercial sales of VIRACEPT for the three and six-month periods ended December
31, 1998 resulted in gross margins of approximately $83,952,000 and
$160,777,000.
At December 31, 1998, the Company had net working capital of approximately
$154,080,000, an increase of $26,352,000 over June 30, 1998 levels due
principally to the Company's pre-tax profit of $17,071,000 and $9,825,000 in
proceeds from the issuance of common stock. Individual working capital
components significantly impacted by the commercialization of VIRACEPT include
trade accounts receivable (an increase of $11,639,000), inventories (an increase
of $713,000), accounts payable (a decrease of $19,535,000) and accrued
liabilities (an increase of $8,221,000, primarily due to accrued royalties
payable to JT). It is anticipated that these working capital components and cash
and short-term investments will continue to be significantly impacted by
VIRACEPT sales. At December 31, 1998, the Company had cash, cash equivalents and
short-term investments of approximately $73,734,000. The Company believes that
its current capital resources, existing contractual commitments and anticipated
VIRACEPT product sales are sufficient to maintain its current operations through
fiscal 1999. This belief is based on current research and clinical development
plans, anticipated working capital requirements associated with the expanding
commercialization of VIRACEPT, the current regulatory environment, historical
industry experience in the development of therapeutic drugs and general economic
conditions.
The Company believes that additional financing may be required to meet the
planned operating needs after fiscal 1999 if significant and increasing positive
cash flows are not generated from commercial activities. Such needs would
include the expenditure of substantial funds to continue and expand research and
development activities, conduct existing and planned preclinical studies and
human clinical trials and to support the increasing working capital requirements
of a growing commercial infrastructure including manufacturing, sales and
marketing capabilities. As a result, the Company anticipates pursuing various
financing alternatives such as collaborative arrangements and additional public
offerings or private placements of securities. If such alternatives are not
available, the Company may be required to defer or restrict certain commercial
activities, delay or eliminate expenditures for certain of its potential
products under development, cancel licenses from third parties or to license
third parties to commercialize products or technologies that the Company would
otherwise seek to develop or commercialize itself.
13
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings:
The Company is involved in certain legal or administrative
proceedings generally incidental to its normal business
activities. While the outcome of any such proceedings cannot
be accurately predicted, the Company does not believe the
ultimate resolution of any such existing matters should have a
material adverse effect on its financial position or results
of operations.
On January 27, 1999, an action entitled Ruben v. Agouron
Pharmaceuticals, Inc., et. al. was filed in San Diego Superior
Court against the Company, members of its board of directors,
and Warner-Lambert Company. The complaint, which purports to
be a class action filed on behalf of the Company's
shareholders, alleges that the board breached fiduciary duties
in connection with the decision to enter into the Agreement
and Plan of Merger among the Company, WLC Acquisition
Corporation and Warner-Lambert Company, dated as of January
26, 1999. The complaint purports to seek various forms of
relief, including a preliminary and permanent injunction
against consummation of the transaction with Warner-Lambert
Company and/or money damages. The Company believes the
allegations are without merit.
ITEM 2. Changes in Securities: None
ITEM 3. Defaults Upon Senior Securities: None.
14
<PAGE>
ITEM 4. Submission of Matters to a Vote of Security Holders:
The Company held its Annual Meeting of Shareholders on
December 16, 1998. The following actions were taken at the
meeting:
1. Shareholders elected nine directors to serve until the
next annual meeting. Of the 31,282,508 shares of Common
Stock of the Company outstanding as of the October 19,
1998 record date for the Annual Meeting (the
"Outstanding Shares"), the number of votes cast for and
the number of votes withheld or voted against each
nominee for director were as follows:
<TABLE>
<CAPTION>
Votes
Votes Against or
For Withheld
<S> <C> <C>
Peter Johnson 27,904,017 127,489
Gary E. Friedman 27,903,517 127,989
John N. Abelson 27,901,277 130,229
Patricia M. Cloherty 27,602,377 429,129
A. E. Cohen 27,602,877 428,629
Michael E. Herman 27,607,127 424,379
Irving S. Johnson 27,605,663 425,843
Antonie T. Knoppers 27,603,209 428,297
Melvin I. Simon 27,904,147 127,359
</TABLE>
2. A proposal (the "Divisional Stock Proposal") was
approved. The proposal approved the amendment and
restatement of the Company's Articles of Incorporation
to (i) increase the number of shares of authorized
Common Stock to 150,000,000 shares, of which 75,000,000
shares would initially be designated as Agouron
Pharmaceuticals Stock and 25,000,000 shares would
initially be designated as Oncology Division
("Oncoceutics") Common Stock, (ii) provide
authorization to the Board to designate and issue any
undesignated shares in one or more additional series of
Common Stock, to determine the number of shares,
rights, preferences, privileges and restrictions of any
such series, and to increase or decrease the number of
shares of any existing series, and (iii) convert each
share of the Company's existing Common Stock into one
share of Agouron Pharmaceuticals Stock and 0.5 shares
of Oncoceutics Stock. 21,535,439 shares were voted in
favor of the proposal, 5,530,848 shares were voted
against the proposal, 138,535 shares abstained and
4,077,686 shares were not voted or were broker
non-votes.
3. A proposal to amend the Company's 1996 Stock Option
Plan to increase the number of shares available for
issuance under such plan by 1,000,000 shares was
approved. 22,165,340 shares were voted in favor of the
proposal, 4,640,301 shares were voted against the
proposal, 399,181 shares abstained and 826,684 shares
were not voted or were broker non-votes.
15
<PAGE>
4. A proposal to amend the Company's Employee Stock
Purchase Plan to increase the number of shares
available for purchase under such plan by 200,000
shares was approved. 25,820,930 shares were voted in
favor of the proposal, 1,020,130 shares were voted
against the proposal, 363,762 shares abstained and
826,684 shares were not voted or were broker non-votes.
5. The selection of PricewaterhouseCoopers LLP as the
Company's independent accountants was ratified.
27,857,821 shares were voted in favor of the proposal,
66,419 shares were voted against the proposal, 107,266
shares abstained and 0 shares were not voted or were
broker non-votes.
ITEM 5. Other Information: None
ITEM 6. Exhibits and Reports on Form 8-K:
a. Exhibits:
4.1(1) Amended and Restated Rights Agreement dated
as of November 10, 1998 between Agouron
Pharmaceuticals, Inc. and ChaseMellon
Shareholder Services, L.L.C.
10.1(2) Amended and Restated 1996 Stock Option Plan.
10.2(2) Amended and Restated Employee Stock Purchase
Plan.
10.3(3) Amended 1998 Employee Stock Option Plan.
10.4 Agreement and Plan of Merger dated as of
January 26, 1999 among Warner-Lambert Company,
WLC Acquisition Corporation and Agouron
Pharmaceuticals, Inc.
10.5 Stock Option Agreement dated as of January 26,
1999, by and between Agouron Pharmaceuticals,
Inc. and Warner-Lambert Company.
10.6 Form of Employment Agreement dated January 26,
1999 executed with Peter Johnson, Marvin R.
Brown, Gary E. Friedman, Barry D. Quart and
R. Kent Snyder (named executive officers in
Proxy Statement dated November 12, 1998).
27. Financial Data Schedule for the quarter ended
December 31, 1998.
b. Reports on Form 8-K: None.
- ------------------
(1) Incorporated by reference to Form 8-K filed January 19, 1999.
(2) Incorporated by reference to Form S-4 filed August 13, 1998.
(3) Incorporated by reference to Form S-8 filed January 19, 1999.
16
<PAGE>
SIGNATURE
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.
AGOURON PHARMACEUTICALS, INC.
Date: February 5, 1999 /s/ Steven S. Cowell
---------------------------------------
Steven S. Cowell
Corporate Vice President, Finance
Chief Financial Officer
Chief Accounting Officer
17
<PAGE>
- -------------------------------------------------------------------------------
EXHIBIT 10.4
AGREEMENT AND PLAN OF MERGER
DATED AS OF JANUARY 26, 1999
AMONG
WARNER-LAMBERT COMPANY,
WLC ACQUISITION CORPORATION
AND
AGOURON PHARMACEUTICALS, INC.
------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER . . . . . . . . . . . . . . 2
1.1 The Merger . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Effective Time . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Effects of the Merger . . . . . . . . . . . . . . . . . . . 3
1.5 Certificate of Incorporation . . . . . . . . . . . . . . . 3
1.6 By-Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.7 Officers and Directors of Surviving Corporation . . . . . . 3
1.8 Effect of Merger on Capital Stock . . . . . . . . . . . . . 3
1.9 Dissenting Agouron Common Shares . . . . . . . . . . . . . 4
1.10 Agouron Stock Options . . . . . . . . . . . . . . . . . . 4
1.11 Certain Adjustments . . . . . . . . . . . . . . . . . . . 6
ARTICLE II
EXCHANGE OF CERTIFICATES . . . . . . . . . . 6
2.1 Exchange Fund . . . . . . . . . . . . . . . . . . . . . . . 6
2.2 Exchange Procedures . . . . . . . . . . . . . . . . . . . . 6
2.3 Distributions with Respect to Unexchanged Shares . . . . . 7
2.4 No Further Ownership Rights in Agouron Common Stock . . . . 8
2.5 No Fractional Shares of Warner-Lambert Common Stock . . . . 8
2.6 Termination of Exchange Fund . . . . . . . . . . . . . . . 9
2.7 No Liability . . . . . . . . . . . . . . . . . . . . . . . 9
2.8 Investment of the Exchange Fund . . . . . . . . . . . . . . 9
2.9 Lost Certificates . . . . . . . . . . . . . . . . . . . . . 9
2.10 Withholding Rights . . . . . . . . . . . . . . . . . . . . 10
2.11 Further Assurances . . . . . . . . . . . . . . . . . . . . 10
2.12 Stock Transfer Books . . . . . . . . . . . . . . . . . . . 10
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . . . . 11
3.1 Representations and Warranties of Warner-Lambert. . . . . . 11
(a) Organization, Standing and Power; Subsidiaries . . . 11
(b) Capital Structure . . . . . . . . . . . . . . . . . 12
(c) Authority; No Conflicts . . . . . . . . . . . . . . 13
(d) Reports and Financial Statements . . . . . . . . . . 15
(e) Information Supplied . . . . . . . . . . . . . . . . 16
(f) Board Approval . . . . . . . . . . . . . . . . . . . 17
(g) Litigation; Compliance with Laws . . . . . . . . . . 17
(h) Absence of Certain Changes or Events . . . . . . . . 18
<PAGE>
(i) Environmental Matters . . . . . . . . . . . . . . . 19
(j) Brokers or Finders . . . . . . . . . . . . . . . . . 19
(k) Opinion of Warner-Lambert Financial Advisor . . . . 19
(l) Accounting Matters . . . . . . . . . . . . . . . . . 19
3.2 Representations and Warranties of Agouron . . . . . . . . . 20
(a) Organization, Standing and Power; Subsidiaries . . . 20
(b) Capital Structure . . . . . . . . . . . . . . . . . 21
(c) Authority; No Conflicts . . . . . . . . . . . . . . 22
(d) Reports and Financial Statements . . . . . . . . . . 23
(e) Information Supplied . . . . . . . . . . . . . . . . 25
(f) Board Approval . . . . . . . . . . . . . . . . . . . 25
(g) Vote Required . . . . . . . . . . . . . . . . . . . 26
(h) Litigation; Compliance with Laws . . . . . . . . . . 26
(i) Absence of Certain Changes or Events . . . . . . . . 26
(j) Environmental Matters . . . . . . . . . . . . . . . 27
(k) Intellectual Property . . . . . . . . . . . . . . . 29
(l) Rights Agreement . . . . . . . . . . . . . . . . . . 29
(m) Brokers or Finders . . . . . . . . . . . . . . . . . 30
(n) Opinion of Agouron Financial Advisor . . . . . . . . 30
(o) Accounting Matters . . . . . . . . . . . . . . . . . 30
(p) Taxes . . . . . . . . . . . . . . . . . . . . . . . 30
(q) Certain Contracts . . . . . . . . . . . . . . . . . 32
(r) Employee Benefit Plans . . . . . . . . . . . . . . . 32
(s) Labor Matters . . . . . . . . . . . . . . . . . . . 34
(t) Affiliate Transactions . . . . . . . . . . . . . . . 35
(u) Material Contract Defaults . . . . . . . . . . . . . 35
(v) Insurance . . . . . . . . . . . . . . . . . . . . . 36
(w) Year 2000 Compliance . . . . . . . . . . . . . . . . 36
(x) Supply . . . . . . . . . . . . . . . . . . . . . . . 36
(y) Investigational Compounds and Viracept . . . . . . . 37
(z) Generic Drug Enforcement Act . . . . . . . . . . . . 37
3.3 Representations and Warranties of Warner-Lambert and
Merger Sub . . . . . . . . . . . . . . . . . . . . . . . 37
(a) Organization . . . . . . . . . . . . . . . . . . . . 37
(b) Corporate Authorization . . . . . . . . . . . . . . 37
(c) Non-Contravention . . . . . . . . . . . . . . . . . 37
(d) No Business Activities . . . . . . . . . . . . . . . 38
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS . . . . . . 38
4.1 Conduct of Business of Agouron Pending the Merger . . . . . 38
4.2 Conduct of Business of Warner-Lambert Pending the
Merger . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.3 Governmental Filings . . . . . . . . . . . . . . . . . . . 43
4.4 Control of Other Party's Business . . . . . . . . . . . . . 43
<PAGE>
ARTICLE V
ADDITIONAL AGREEMENTS . . . . . . . . . . . 44
5.1 Preparation of Form S-4 and the Proxy Statement;
Stockholders Meeting . . . . . . . . . . . . . . . . . . 44
5.2. Accountant's Letters . . . . . . . . . . . . . . . . . . . 45
5.3 Access to Information . . . . . . . . . . . . . . . . . . . 46
5.4 Reasonable Best Efforts . . . . . . . . . . . . . . . . . . 47
5.5 No Solicitation of Transactions . . . . . . . . . . . . . . 49
5.6 Employee Benefits Matters . . . . . . . . . . . . . . . . . 50
5.7 Directors' and Officers' Indemnification and Insurance . . 53
5.8 Notification of Certain Matters. . . . . . . . . . . . . . 53
5.9 Public Announcements . . . . . . . . . . . . . . . . . . . 54
5.10 Listing of Shares of Warner-Lambert Common Stock . . . . . 54
5.11 Affiliates . . . . . . . . . . . . . . . . . . . . . . . . 54
5.12 Amendment to the Rights Agreement . . . . . . . . . . . . 55
5.13 Divisional Stock Proposal . . . . . . . . . . . . . . . . 55
ARTICLE VI
CONDITIONS PRECEDENT . . . . . . . . . . . 55
6.1 Conditions to Each Party's Obligation to Effect the
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(a) Stockholder Approval . . . . . . . . . . . . . . . . 56
(b) No Injunctions or Restraints, Illegality . . . . . . 56
(c) HSR Act . . . . . . . . . . . . . . . . . . . . . . . 56
(d) NYSE Listing . . . . . . . . . . . . . . . . . . . . 56
(e) Effectiveness of the Form S-4 . . . . . . . . . . . 56
(f) Pooling . . . . . . . . . . . . . . . . . . . . . . . 56
6.2 Additional Conditions to Obligations of Warner-Lambert
and Merger Sub . . . . . . . . . . . . . . . . . . . . . . 57
(a) Representations and Warranties . . . . . . . . . . . 57
(b) Performance of Obligations of Agouron . . . . . . . 57
(c) Tax Opinion . . . . . . . . . . . . . . . . . . . . 57
(d) No Material Adverse Change . . . . . . . . . . . . . 58
(e) Rights Agreement . . . . . . . . . . . . . . . . . . 58
(f) Dissenting Agouron Shares . . . . . . . . . . . . . . 58
6.3 Additional Conditions to Obligations of Agouron. . . . . . 58
(a) Representations and Warranties . . . . . . . . . . . 58
(b) Performance of Obligations of Warner-Lambert. . . . . 59
(c) Tax Opinion . . . . . . . . . . . . . . . . . . . . 59
(d) No Material Adverse Change . . . . . . . . . . . . . 59
ARTICLE VII
TERMINATION AND AMENDMENT . . . . . . . . . . 59
7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . 59
<PAGE>
7.2 Effect of Termination . . . . . . . . . . . . . . . . . . . 61
7.3 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . 61
7.4 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.5 Extension; Waiver . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE VIII
GENERAL PROVISIONS . . . . . . . . . . . . 63
8.1 Non-Survival of Representations, Warranties and
Agreements . . . . . . . . . . . . . . . . . . . . . . . 63
8.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.3 Interpretation . . . . . . . . . . . . . . . . . . . . . . 65
8.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 65
8.5 Entire Agreement; No Third Party Beneficiaries . . . . . . 65
8.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 66
8.7 Severability . . . . . . . . . . . . . . . . . . . . . . . 66
8.8 Assignment . . . . . . . . . . . . . . . . . . . . . . . . 66
8.9 Submission to Jurisdiction; Waivers . . . . . . . . . . . . 66
8.10 Enforcement . . . . . . . . . . . . . . . . . . . . . . . 67
8.11 Definitions . . . . . . . . . . . . . . . . . . . . . . . 67
<PAGE>
LIST OF EXHIBITS
Exhibit Title
1.5 Certificate of Incorporation
1.7 Board of Directors of Surviving Corporation
3.2(z) Generic Drug Enforcement Act Barred Individuals
5.6(a) Employees Excluded from Certain Benefit Plans
5.11 Form of Affiliate Letter
<PAGE>
AGREEMENT AND PLAN OF MERGER, dated as of January 26, 1999 (this
"Agreement"), among WARNER-LAMBERT COMPANY, a Delaware corporation ("Warner-
Lambert"), WLC ACQUISITION CORPORATION, a California corporation and a direct
wholly-owned subsidiary of Warner-Lambert ("Merger Sub"), and AGOURON
PHARMACEUTICALS, INC., a California corporation ("Agouron").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of Agouron and Warner-Lambert deem
it advisable and in the best interests of each corporation and its respective
stockholders that Agouron and Warner-Lambert engage in a business combination
in order to advance the long-term strategic business interests of Agouron and
Warner-Lambert;
WHEREAS, the combination of Agouron and Warner-Lambert shall be
effected by the terms of this Agreement through a merger as outlined below
(the "Merger");
WHEREAS, in furtherance thereof, the respective Boards of Directors
of Agouron and Warner-Lambert have approved the Merger, upon the terms and
subject to the conditions set forth in this Agreement, pursuant to which each
share of common stock, without par value, of Agouron ("Agouron Common Stock")
issued and outstanding immediately prior to the Effective Time (as defined in
Section 1.3), other than shares owned or held directly or indirectly by
Agouron, will be converted into the right to receive shares of voting common
stock, par value $1.00 per share, of Warner-Lambert ("Warner-Lambert Common
Stock") as set forth in Section 1.8;
WHEREAS, for Federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations promulgated thereunder;
WHEREAS, for accounting purposes, it is intended that the Merger
shall be accounted for as a pooling of interests transaction under United
States generally accepted accounting principles ("GAAP"); and
WHEREAS, as a condition to its willingness to enter into this
Agreement, Warner-Lambert has required that, simultaneously with the
execution hereof, Agouron enter into the option agreement ("Stock Option
Agreement"), dated as of the date hereof, with Warner-Lambert, pursuant to
which Agouron is granting to Warner-Lambert an option to purchase up to 19.9%
of Agouron Common Stock on the terms and conditions set forth therein.
<PAGE>
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement and the Stock Option Agreement, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the California General
Corporation Law (the "CGCL"), Merger Sub shall be merged with and into
Agouron at the Effective Time. Immediately, following the Merger, the
separate corporate existence of Merger Sub shall cease and Agouron shall
continue as the surviving corporation (the "Surviving Corporation") under the
name Agouron.
1.2 Closing. Subject to the terms and conditions hereof, the
closing of the Merger and the transactions contemplated by this Agreement
(the "Closing") will take place on the second Business Day after the
satisfaction or waiver (subject to applicable law) of the conditions set
forth in Article VI (other than any such conditions which by their terms
cannot be satisfied until the Closing Date, which shall be required to be so
satisfied or waived on the Closing Date), unless another time or date is
agreed to in writing by the parties hereto (the actual time and date of the
Closing being referred to herein as the "Closing Date"). The Closing shall
be held at the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue,
New York, New York, 10017, unless another place is agreed to in writing by
the parties hereto.
1.3 Effective Time. At the Closing the parties shall (i) file a
certificate of merger (the "Certificate of Merger") in such form as is
required by and executed in accordance with the relevant provisions of the
CGCL and (ii) make all other filings or recordings required under the CGCL.
The Merger shall become effective at such time as the Certificate of Merger
is duly filed with the California Secretary of State or at such subsequent
time as Warner-Lambert and Agouron shall agree and as shall be specified in
the Certificate of Merger (the date and time the Merger becomes effective
being the "Effective Time").
1.4 Effects of the Merger. At and after the Effective Time, the
Merger will have the effects set forth in the CGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time all
the property, rights, privileges, powers and franchises of Agouron and Merger
Sub shall be vested in the Surviving Corporation, and all debts, liabilities
<PAGE>
and duties of Agouron and Merger Sub shall be the debts, liabilities and
duties of the Surviving Corporation.
1.5 Certificate of Incorporation. The certificate of incorporation
of Agouron, as in effect immediately prior to the Effective Time, shall be
amended and restated as of the Effective Time so as to read in its entirety
in the form set forth as Exhibit 1.5 and, as so amended and restated, shall
be the certificate of incorporation of the Surviving Corporation, until
thereafter changed or amended as provided therein or by applicable law.
1.6 By-Laws. At the Effective Time and without any further action
on the part of Agouron and Merger Sub, the By-Laws of Merger Sub shall be the
By-Laws of the Surviving Corporation and thereafter may be amended or
repealed in accordance with their terms or the Certificate of Incorporation
of the Surviving Corporation and as provided by law.
1.7 Officers and Directors of Surviving Corporation. The officers
of Agouron as of the Effective Time shall be the officers of the Surviving
Corporation, until the earlier of their resignation or removal or otherwise
ceasing to be an officer or until their respective successors are duly
elected and qualified, as the case may be. The directors of the Surviving
Corporation as of the Effective Time shall be as provided in Exhibit 1.7,
which individuals will serve as directors of the Surviving Corporation until
the earlier of their resignation or removal or otherwise ceasing to be a
director or until their respective successors are duly elected and qualified.
1.8 Effect of Merger on Capital Stock.
(a) At the Effective Time by virtue of the Merger and without any
action on the part of the holder thereof, each share of Agouron Common Stock
issued and outstanding immediately prior to the Effective Time (other than
shares of Agouron Common Stock held by Agouron, all of which shall be
canceled as provided in Section 1.8(c)) shall be converted into the right to
receive from Warner-Lambert a fraction of a share of Warner-Lambert Common
Stock equal to the Exchange Ratio (as defined in Section 8.11), including the
corresponding percentage of a right to purchase shares of Warner-Lambert's
Series A Preferred Stock (as defined in Section 3.1(b)) pursuant to the
Warner-Lambert Rights Agreement (as defined in Section 3.1(b)), of Warner-
Lambert Common Stock (together with any cash in lieu of fractional shares of
Warner-Lambert Common Stock to be paid pursuant to Section 2.5, the "Merger
Consideration").
(b) As a result of the Merger and without any action on the part of
the holders thereof, at the Effective Time, all shares of Agouron Common
Stock shall cease to be outstanding and shall be canceled and retired and
shall cease to exist, and each holder of a certificate which immediately
<PAGE>
prior to the Effective Time represented any such shares of Agouron Common
Stock (a "Certificate") shall thereafter cease to have any rights with
respect to such shares of Agouron Common Stock, except as provided herein or
by law.
(c) Each share of Agouron Common Stock issued and owned or held by
Agouron at the Effective Time shall, by virtue of the Merger, cease to be
outstanding and shall be canceled and retired and no stock of Warner-Lambert
or other consideration shall be delivered in exchange therefor.
(d) Each share of common stock, no par value, of Merger Sub issued
and outstanding immediately prior to the Effective Time, shall be converted
into issued, outstanding and unchanged as validly issued, fully paid and
nonassessable shares of common stock, no par value, of the Surviving
Corporation as of the Effective Time.
1.9 Dissenting Agouron Common Shares. Notwithstanding anything in
this Agreement to the contrary, shares of Agouron Common Stock whose holders
have perfected dissenters' rights under Section 1300 et seq. of the CGCL
("Dissenting Agouron Common Shares") shall not be converted into the right to
receive or be exchangeable for, the Merger Consideration provided for in
Section 1.8 hereof, but, instead, the holders thereof shall be entitled to
payment, by Agouron, of the value of such Dissenting Agouron Common Shares as
agreed upon or determined in accordance with the provisions of Section 1300
et seq. of the CGCL.
1.10 Agouron Stock Options.
(a) On or prior to the Effective Time, Agouron will take all action
necessary such that each Agouron Stock Option (as defined in Section 3.2(b))
that was granted pursuant to the Agouron Stock Option Plans (as defined in
Section 3.2(b)) prior to the Effective Time and which remains outstanding
immediately prior to the Effective Time shall cease to represent a right to
acquire shares of Agouron Common Stock and shall be converted, at the
Effective Time, into an option to acquire, on the same terms and conditions
as were applicable under the Agouron Stock Option, that number of shares of
Warner-Lambert Common Stock determined by multiplying the number of shares of
Agouron Common Stock subject to such Agouron Stock Option by the Exchange
Ratio, rounded, if necessary, to the nearest whole share of Warner-Lambert
Common Stock, at a price per share equal to the per share exercise price
specified in such Agouron Stock Option divided by the Exchange Ratio all
adjusted for any fractional shares eliminated by rounding to ensure the
intrinsic value of the option at consummation is preserved; provided,
however, that in the case of any Agouron Stock Option to which Section 421 of
the Code applies by reason of its qualification under Section 422 of the
<PAGE>
Code, the option price, the number of shares subject to such option and the
terms and conditions of exercise of such option shall be determined in a
manner consistent with the requirements of Section 424(a) of the Code.
(b) As soon as practicable after the Effective Time, Warner-Lambert
shall deliver to the holders of Agouron Stock Options appropriate notices
setting forth such holders' rights pursuant to the Agouron Stock Option Plans
and the agreements evidencing the grants of such Agouron Stock Options shall
continue in effect on the same terms and conditions (subject to the
adjustments required by this Section 1.10 after giving effect to the Merger
and the terms of the Agouron Stock Option Plans). To the extent permitted by
law, Warner-Lambert shall comply with the terms of the Agouron Stock Option
Plans and shall take such reasonable steps as are necessary or required by,
and subject to the provisions of, such Agouron Stock Option Plans, to have
the Agouron Stock Options which qualified as incentive stock options prior to
the Effective Time continue to qualify as incentive stock options of Warner-
Lambert after the Effective Time.
(c) Warner-Lambert shall take all corporate action necessary to
reserve for issuance a sufficient number of shares of Warner-Lambert Common
Stock for delivery upon exercise of Agouron Stock Options in accordance with
this Section 1.10. Promptly after the Effective Time, Warner-Lambert shall
file a registration statement on Form S-3 or Form S-8, as the case may be (or
any successor or other appropriate forms), with respect to the shares of
Warner-Lambert Common Stock subject to such options and shall use
commercially reasonable efforts to maintain the effectiveness of such
registration statement or registration statements (and maintain the current
status of the prospectus or prospectuses contained therein) for so long as
such options remain outstanding. With respect to those individuals who
subsequent to the Merger will be subject to the reporting requirements under
Section 16(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), where applicable, Warner-Lambert shall administer the
Agouron Stock Option Plans in a manner consistent with the exemptions
provided by Rule 16b-3 promulgated under the Exchange Act.
1.11 Certain Adjustments. If, between the date of this Agreement
and the Effective Time, the outstanding Warner-Lambert Common Stock or
Agouron Common Stock shall have been changed into a different number of
shares or different class by reason of any reclassification,
recapitalization, stock split, split-up, combination or exchange of shares or
a stock dividend or dividend payable in any other securities shall be
declared with a record date within such period, or any similar event shall
have occurred, the Exchange Ratio shall be appropriately adjusted to provide
to the holders of Agouron Common Stock the same economic effect as
contemplated by this Agreement prior to such event.
<PAGE>
ARTICLE II
EXCHANGE OF CERTIFICATES
2.1 Exchange Fund. Prior to the Effective Time, Warner-Lambert
shall appoint a commercial bank or trust company having net capital of not
less than $100,000,000, or a subsidiary thereof, to act as exchange agent
hereunder for the purpose of exchanging Certificates for the Merger
Consideration (the "Exchange Agent"). At or prior to the Effective Time,
Warner-Lambert shall deposit with the Exchange Agent, in trust for the
benefit of holders of shares of Agouron Common Stock, certificates
representing the Warner-Lambert Common Stock issuable pursuant to Section 1.8
in exchange for outstanding shares of Agouron Common Stock. Warner-Lambert
agrees to make available to the Exchange Agent from time to time as needed,
cash sufficient to pay cash in lieu of fractional shares pursuant to Section
2.5 and any dividends and other distributions pursuant to Section 2.3. Any
cash and certificates of Warner-Lambert Common Stock deposited with the
Exchange Agent shall hereinafter be referred to as the "Exchange Fund".
2.2 Exchange Procedures. As soon as reasonably practicable after
the Effective Time, the Surviving Corporation shall cause the Exchange Agent
to mail to each holder of a Certificate (i) a letter of transmittal which
shall specify that delivery shall be effected, and risk of loss and title to
the Certificates shall pass, only upon delivery of the Certificates to the
Exchange Agent, and which letter shall be in customary form and have such
other provisions as Warner-Lambert may reasonably specify and (ii)
instructions for effecting the surrender of such Certificates in exchange for
the applicable Merger Consideration. Upon surrender of a Certificate to the
Exchange Agent together with such letter of transmittal, duly executed and
completed in accordance with the instructions thereto, and such other
documents as may reasonably be required by the Exchange Agent, the holder of
such Certificate shall be entitled to receive in exchange therefor (A) one or
more shares of Warner-Lambert Common Stock (which shall be in uncertificated
book-entry form unless a physical certificate is requested) representing, in
the aggregate, the whole number of shares that such holder has the right to
receive pursuant to Section 1.8 (after taking into account all shares of
Agouron Common Stock then held by such holder) and (B) a check in the amount
equal to the cash that such holder has the right to receive pursuant to the
provisions of this Article II, including cash in lieu of any fractional
shares of Warner-Lambert Common Stock pursuant to Section 2.5 and dividends
and other distributions pursuant to Section 2.3. No interest will be paid or
will accrue on any cash payable pursuant to Section 2.3 or Section 2.5. In
the event of a transfer of ownership of Agouron Common Stock which is not
registered in the transfer records of Agouron, one or more shares of Warner-
<PAGE>
Lambert Common Stock evidencing, in the aggregate, the proper number of
shares of Warner-Lambert Common Stock, a check in the proper amount of cash
in lieu of any fractional shares of Warner-Lambert Common Stock pursuant to
Section 2.5 and any dividends or other distributions to which such holder is
entitled pursuant to Section 2.3, may be issued with respect to such Agouron
Common Stock to such a transferee if the Certificate representing such shares
of Agouron Common Stock is presented to the Exchange Agent, accompanied by
all documents required to evidence and effect such transfer and to evidence
that any applicable stock transfer taxes have been paid.
2.3 Distributions with Respect to Unexchanged Shares. No dividends
or other distributions declared or made with respect to shares of Warner-
Lambert Common Stock with a record date after the Effective Time shall be
paid to the holder of any unsurrendered Certificate with respect to the
shares of Warner-Lambert Common Stock that such holder would be entitled to
receive upon surrender of such Certificate and no cash payment in lieu of
fractional shares of Warner-Lambert Common Stock shall be paid to any such
holder pursuant to Section 2.5 until such holder shall surrender such
Certificate in accordance with Section 2.2. Subject to the effect of
applicable laws, following surrender of any such Certificate, there shall be
paid to such holder of shares of Warner-Lambert Common Stock issuable in
exchange therefor, without interest, (a) promptly after the time of such
surrender, the amount of any cash payable in lieu of fractional shares of
Warner-Lambert Common Stock to which such holder is entitled pursuant to
Section 2.5, and (b) at the appropriate payment date, the amount of dividends
or other distributions with a record date after the Effective Time but prior
to such surrender and a payment date subsequent to such surrender payable
with respect to such shares of Warner-Lambert Common Stock.
2.4 No Further Ownership Rights in Agouron Common Stock. All shares
of Warner-Lambert Common Stock issued and cash paid upon conversion of shares
of Agouron Common Stock in accordance with the terms of Article I and this
Article II (including any cash paid pursuant to Section 2.3 or 2.5) shall be
deemed to have been issued or paid in full satisfaction of all rights
pertaining to the shares of Agouron Common Stock. Until surrendered as
contemplated by this Article II, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to receive upon such
surrender the Merger Consideration.
2.5 No Fractional Shares of Warner-Lambert Common Stock.
(a) No certificates or scrip or shares of Warner-Lambert Common
Stock representing fractional shares of Warner-Lambert Common Stock or book-
entry credit of the same shall be issued upon the surrender for exchange of
Certificates and such fractional share interests will not entitle the owner
<PAGE>
thereof to vote or to have any rights of a shareholder of Warner-Lambert or a
holder of shares of Warner-Lambert Common Stock.
(b) Notwithstanding any other provision of this Agreement, each
holder of shares of Agouron Common Stock exchanged pursuant to the Merger who
would otherwise have been entitled to receive a fraction of a share of
Warner-Lambert Common Stock (after taking into account all Certificates
delivered by such holder) shall receive, in lieu thereof, cash (without
interest) in an amount equal to the product of (i) such fractional part of a
share of Warner-Lambert Common Stock multiplied by (ii) the closing price for
a share of Warner-Lambert Common Stock on the New York Stock Exchange, Inc.
("NYSE") Composite Transactions Tape on the date of the Effective Time or, if
such date is not a Business Day, the Business Day immediately following the
date on which the Effective Time occurs. As promptly as practicable after
the determination of the amount of cash, if any, to be paid to holders of
fractional interests, the Exchange Agent shall so notify Warner-Lambert, and
Warner-Lambert shall cause the Surviving Corporation to deposit such amount
with the Exchange Agent and shall cause the Exchange Agent to forward
payments to such holders of fractional interests subject to and in accordance
with the terms hereof.
2.6 Termination of Exchange Fund. Any portion of the Exchange Fund
which remains undistributed to the holders of Certificates for six months
after the Effective Time shall be delivered to Warner-Lambert or otherwise on
the instruction of Warner-Lambert and any holders of the Certificates who
have not theretofore complied with this Article II shall thereafter look only
to the Surviving Corporation and Warner-Lambert for the Merger Consideration
with respect to the shares of Agouron Common Stock formerly represented
thereby to which such holders are entitled pursuant to Section 1.8 and
Section 2.2, any cash in lieu of fractional shares of Warner-Lambert Common
Stock to which such holders are entitled pursuant to Section 2.5 and any
dividends or distributions with respect to shares of Warner-Lambert Common
Stock to which such holders are entitled pursuant to Section 2.3. Any such
portion of the Exchange Fund remaining unclaimed by holders of shares of
Agouron Common Stock five years after the Effective Time (or such earlier
date immediately prior to such time as such amounts would otherwise escheat
to or become property of any Governmental Entity (as defined in Section
3.1(c)(iii)) shall, to the extent permitted by law, become the property of
Warner-Lambert free and clear of any claims or interest of any Person
previously entitled thereto.
2.7 No Liability. None of Warner-Lambert, Merger Sub, Agouron, the
Surviving Corporation or the Exchange Agent shall be liable to any Person in
respect of any Merger Consideration from the Exchange Fund delivered to a
<PAGE>
public official pursuant to any applicable abandoned property, escheat or
similar law.
2.8 Investment of the Exchange Fund. The Exchange Agent shall
invest any cash included in the Exchange Fund as directed by Warner-Lambert
on a daily basis. Any interest and other income resulting from such
investments shall promptly be paid to Warner-Lambert.
2.9 Lost Certificates. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an 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 deliver in exchange for such lost,
stolen or destroyed Certificate the applicable Merger Consideration with
respect to the shares of Agouron Common Stock formerly represented thereby,
any cash in lieu of fractional shares of Warner-Lambert Common Stock, and
unpaid dividends and distributions on shares of Warner-Lambert Common Stock
deliverable in respect thereof, pursuant to this Agreement.
2.10 Withholding Rights. Each of the Surviving Corporation and
Warner-Lambert shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any holder of
shares of Agouron Common Stock such amounts as it is required to deduct and
withhold with respect to the making of such payment under the Code and the
rules and regulations promulgated thereunder, or any provision of state,
local or foreign tax law. To the extent that amounts are so withheld by the
Surviving Corporation or Warner-Lambert, as the case may be, such withheld
amounts shall be treated for all purposes of this Agreement as having been
paid to the holder of the shares of Agouron Common Stock in respect of which
such deduction and withholding was made by the Surviving Corporation or
Warner-Lambert, as the case may be.
2.11 Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of Agouron or Merger Sub, any
deeds, bills of sale, assignments or assurances and to take and do, in the
name and on behalf of Agouron or Merger Sub, any other actions and things to
vest, perfect or confirm of record or otherwise in the Surviving Corporation
any and all right, title and interest in, to and under any of the rights,
properties or assets acquired or to be acquired by the Surviving Corporation
as a result of, or in connection with, the Merger.
<PAGE>
2.12 Stock Transfer Books. The stock transfer books of Agouron
shall be closed immediately upon the Effective Time and there shall be no
further registration of transfers of shares of Agouron Common Stock
thereafter on the records of Agouron. On or after the Effective Time, any
Certificates presented to the Exchange Agent or Warner-Lambert for any reason
shall be converted into the Merger Consideration with respect to the shares
of Agouron Common Stock formerly represented thereby, any cash in lieu of
fractional shares of Warner-Lambert Common Stock to which the holders thereof
are entitled pursuant to Section 2.5 and any dividends or other distributions
to which the holders thereof are entitled pursuant to Section 2.3.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Warner-Lambert. Except as set
forth in the Warner-Lambert Disclosure Schedule delivered by Warner-Lambert
to Agouron prior to the execution of this Agreement (the "Warner-Lambert
Disclosure Schedule") (each section of which qualifies the correspondingly
numbered representation and warranty or covenant to the extent specified
therein) Warner-Lambert represents and warrants to Agouron as follows:
(a) Organization, Standing and Power; Subsidiaries.
(i) Each of Warner-Lambert and each of its Subsidiaries (as
defined in Section 8.11) is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization, has the requisite power and authority
to own, lease and operate its properties and to carry on its business
as now being conducted, except where the failure to be so organized,
existing and in good standing or to have such power and authority
would not reasonably be expected to have a Material Adverse Effect
(as defined in Section 8.11) on Warner-Lambert, and is duly qualified
and in good standing to do business in each jurisdiction in which the
nature of its business or the ownership or leasing of its properties
makes such qualification necessary other than in such jurisdictions
where the failure so to qualify or to be in good standing would not
reasonably be expected to have a Material Adverse Effect on Warner-
Lambert. The copies of the certificate of incorporation and by-laws
of Warner-Lambert which were previously furnished or made available
to Agouron are true, complete and correct copies of such documents as
in effect on the date of this Agreement.
<PAGE>
(ii) Exhibit 21 to Warner-Lambert's Annual Report on Form 10-K
for the year ended December 31, 1997 includes all the Subsidiaries of
Warner-Lambert which as of the date of this Agreement are Significant
Subsidiaries (as defined in Rule 1-02 of Regulation S-X of the SEC).
All the outstanding shares of capital stock of, or other equity
interests in each such Significant Subsidiary have been validly
issued and are fully paid and nonassessable and are owned directly or
indirectly by Warner-Lambert, free and clear of all pledges, claims,
liens, charges, encumbrances and security interests of any kind or
nature whatsoever (collectively "Liens") and free of any other
restriction (including any restriction on the right to vote, sell or
otherwise dispose of such capital stock or other ownership interests)
other than Liens or restrictions that do not have a Material Adverse
Effect on Warner-Lambert. Except as set forth in the Warner-Lambert
SEC Reports (as defined in Section 3.1(d)), as of the date of this
Agreement, neither Warner-Lambert nor any of its Subsidiaries
directly or indirectly owns any equity or similar interest in, or any
interest convertible into or exchangeable or exercisable for, any
corporation, partnership, joint venture or other business association
or entity (other than Subsidiaries), that is or would reasonably be
expected to be material to Warner-Lambert and its Subsidiaries taken
as a whole.
(b) Capital Structure.
(i) As of December 31, 1998, the authorized capital stock of
Warner-Lambert consisted of (A) 1,200,000,000 shares of Warner-
Lambert Common Stock of which 821,552,156 shares were outstanding and
140,429,452 shares were held in the treasury of Warner-Lambert and
(B) 5,000,000 shares of Preferred Stock, par value $1.00 per share,
none of which were outstanding and 400,000 shares of which have been
designated as Series A Junior Participating Preferred Stock (the
"Series A Preferred Stock") and reserved for issuance upon exercise
of certain rights as set forth in the Amended and Restated Rights
Agreement dated as of March 25, 1997 between Warner-Lambert and First
Chicago Trust Company of New York, as rights agent (the "Warner-
Lambert Rights Agreement"). Since December 31, 1998 to the date of
this Agreement, there have been no issuances of shares of the capital
stock of Warner-Lambert or any other securities of Warner-Lambert
other than issuances of shares pursuant to options or rights
outstanding as of December 31, 1998 under the Benefit Plans (as
defined in Section 8.11) of Warner-Lambert. All issued and
outstanding shares of the capital stock of Warner-Lambert are duly
authorized, validly issued, fully paid and nonassessable, and no
class of capital stock is entitled to preemptive rights. There were
<PAGE>
outstanding as of December 31, 1998 no options, warrants or other
rights to acquire capital stock from Warner-Lambert other than
options, restricted stock and share equivalents representing in the
aggregate the right to purchase 182,942,041 shares of Warner-Lambert
Common Stock under the Warner-Lambert Company 1989 Stock Plan, as
amended to January 27, 1998, Warner-Lambert Company 1992 Stock Plan,
as amended to January 27, 1998, Warner-Lambert Company 1996 Stock
Plan, as amended to January 27, 1998 and Restricted Stock Plan for
Directors of Warner-Lambert Company, as amended to January 28, 1992
(collectively, the "Warner-Lambert Stock Plans").
(ii) No bonds, debentures, notes or other indebtedness of
Warner-Lambert having the right to vote on any matters on which
holders of capital stock of Warner-Lambert may vote ("Warner-Lambert
Voting Debt") are issued or outstanding.
(iii) Except as otherwise set forth in this Section 3.1(b) and
as contemplated by Section 1.8 and Section 1.10, as of the date of
this Agreement, there are no securities, options, warrants, calls,
rights, commitments, agreements, arrangements or undertakings of any
kind to which Warner-Lambert or any of its Subsidiaries is a party or
by which any of them is bound obligating Warner-Lambert to issue,
deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock or other voting securities of Warner-Lambert
or obligating Warner-Lambert to issue, grant, extend or enter into
any such security, option, warrant, call, right, commitment,
agreement, arrangement or undertaking. As of the date of this
Agreement, there are no outstanding obligations of Warner-Lambert to
repurchase, redeem or otherwise acquire any shares of capital stock
of Warner-Lambert.
(c) Authority; No Conflicts.
(i) Warner-Lambert has all requisite corporate power and
authority to enter into this Agreement and the Stock Option Agreement
and to consummate the transactions contemplated hereby and thereby,
including, without limitation, the issuance of the shares of Warner-
Lambert Common Stock to be issued in the Merger (the "Share
Issuance"). The execution and delivery of this Agreement and the
Stock Option Agreement and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of Warner-Lambert. Each of
this Agreement and the Stock Option Agreement has been duly executed
and delivered by Warner-Lambert and constitutes a valid and binding
agreement of Warner-Lambert, enforceable against it in accordance
<PAGE>
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws
relating to or affecting creditors generally or by general equity
principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law) or by an implied covenant of
good faith and fair dealing.
(ii) The execution and delivery of this Agreement and the Stock
Option Agreement by Warner-Lambert does not or will not, as the case
may be, and the consummation by Warner-Lambert of the Merger and the
other transactions contemplated hereby and thereby will not, conflict
with, or result in any violation of, or constitute a default (with or
without notice or lapse of time, or both) under, or give rise to a
right of termination, amendment, cancellation or acceleration of any
obligation or the loss of a material benefit under, or the creation
of a Lien on any assets (any such conflict, violation, default, right
of termination, amendment, cancellation or acceleration, loss or
creation, is hereinafter referred to as a "Violation") pursuant to:
(A) any provision of the certificate of incorporation or by-laws of
Warner-Lambert or any material Subsidiary of Warner-Lambert or (B)
except as would not reasonably be expected to have a Material Adverse
Effect on Warner-Lambert, subject to obtaining or making the
consents, approvals, orders, authorizations, registrations,
declarations and filings referred to in paragraph (iii) below, any
loan or credit agreement, note, mortgage, bond, indenture, lease,
benefit plan or other agreement, obligation, instrument, permit,
concession, franchise, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Warner-Lambert or
any Subsidiary of Warner-Lambert, or their respective properties or
assets.
(iii) No consent, approval, order or authorization of, or
registration, declaration or filing with, any supranational,
national, state, municipal, local or foreign government, any
instrumentality, subdivision, court, administrative agency or
commission or other authority thereof, or any quasi-governmental or
private body exercising any regulatory, taxing, importing or other
governmental or quasi-governmental authority (a "Governmental
Entity"), is required by or with respect to Warner-Lambert or any
Subsidiary of Warner-Lambert in connection with the execution and
delivery of this Agreement or the Stock Option Agreement by Warner-
Lambert or the consummation of the Merger and the other transactions
contemplated hereby, except for those required under or in relation
to (A) the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), (B) state securities or "blue sky" laws (the
<PAGE>
"Blue Sky Laws"), (C) the Securities Act, (D) the Exchange Act, (E)
the CGCL with respect to the filing of the Certificate of Merger, (F)
rules and regulations of the NYSE and the Nasdaq National Market, (G)
antitrust or other competition laws of other jurisdictions, (H) the
Consent Decree of Permanent Injunction, dated August 16, 1993 between
Warner-Lambert and the United States, (I) the Investment Canada Act,
and (J) such consents, approvals, orders, authorizations,
registrations, declarations and filings the failure of which to make
or obtain would not reasonably be expected to have a Material Adverse
Effect on Warner-Lambert. Consents, approvals, orders,
authorizations, registrations, declarations and filings required
under or in relation to any of the foregoing clauses (A) through (I)
are hereinafter referred to as "Necessary Consents".
(d) Reports and Financial Statements.
(i) Warner-Lambert has filed all required registration
statements, prospectuses, reports, schedules, forms, statements and
other documents required to be filed by it with the SEC since January
1, 1998 (collectively, including all exhibits thereto, the "Warner-
Lambert SEC Reports"). Since such date, no Subsidiary of Warner-
Lambert is required to file any form, report, registration statement,
prospectus or other document with the SEC. None of the Warner-
Lambert SEC Reports, as of their respective dates (and, if amended or
superseded by a filing prior to the date of this Agreement or the
Closing Date, then on the date of such filing), contained or will
contain any untrue statement of a material fact or omitted or will
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
Warner-Lambert SEC Reports together with any public announcements in
a news release issued by the Dow Jones news service, PR Newswire or
any equivalent service (collectively, a "Dow Jones News Release")
made by Warner-Lambert after the date hereof, taken as a whole, as of
the Effective Time will 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 existing as of the Effective Time, not misleading.
Each of the financial statements (including the related notes)
included in the Warner-Lambert SEC Reports presents fairly, in all
material respects, the consolidated financial position and
consolidated results of operations and cash flows of Warner-Lambert
and its Subsidiaries as of the respective dates or for the respective
periods set forth therein, all in conformity with GAAP applied on a
consistent basis throughout the periods involved except as otherwise
<PAGE>
noted therein, and subject, in the case of the unaudited interim
financial statements, to normal and recurring adjustments that were
not or are not expected to be material in amount. All of such
Warner-Lambert SEC Reports, as of their respective dates (and as of
the date of any amendment to the respective Warner-Lambert SEC
Report), complied as to form in all material respects with the
applicable requirements of the Securities Act and the Exchange Act
and the rules and regulations promulgated thereunder.
(ii) Except as disclosed in the Warner-Lambert SEC Reports filed
prior to the date hereof, since December 31, 1997, Warner-Lambert and
its Subsidiaries have not incurred any liabilities that are of a
nature that would be required to be disclosed on a balance sheet of
Warner-Lambert and its Subsidiaries or the footnotes thereto prepared
in conformity with GAAP, other than (A) liabilities incurred in the
ordinary course of business or (B) liabilities that would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on Warner-Lambert.
(e) Information Supplied.
(i) None of the information supplied or to be supplied by
Warner-Lambert for inclusion or incorporation by reference in (A) the
registration statement on Form S-4 to be filed with the SEC by
Warner-Lambert in connection with the issuance of shares of Warner-
Lambert Common Stock in connection with the Merger, or any of the
amendments or supplements thereto (collectively, the "Form S-4")
will, at the time the Form S-4 is filed with the SEC, at any time it
is amended or supplemented or at the time it becomes effective under
the Securities Act, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (B) the
proxy statement for use relating to the adoption by the stockholders
of Agouron of this Agreement or any of the amendments or supplements
thereto (collectively, the "Proxy Statement") will, on the date it is
first mailed to Agouron stockholders or at the time of the Agouron
Stockholders Meeting ( as defined in Section 5.1), 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
were made, not misleading. The Form S-4 will comply as to form in
all material respects with the requirements of the Exchange Act and
the Securities Act and the rules and regulations of the SEC
thereunder.
<PAGE>
(ii) Notwithstanding the foregoing provisions of this Section
3.1(e), no representation or warranty is made by Warner-Lambert with
respect to statements made or incorporated by reference in the Form
S-4 based on information supplied by Agouron for inclusion or
incorporation by reference therein.
(f) Board Approval. The Board of Directors of Warner-Lambert, by
resolutions duly adopted by unanimous vote at a meeting duly called and held
and not subsequently rescinded or modified in any way (the "Warner-Lambert
Board Approval"), has duly (i) determined that this Agreement and the Stock
Option Agreement, and the Merger are fair to and in the best interests of
Warner-Lambert and its stockholders, and (ii) approved this Agreement and the
Stock Option Agreement, the Merger and the Share Issuance. To the Knowledge
of Warner-Lambert, no state takeover statute is applicable to the Merger or
the Stock Option Agreement or the other transactions contemplated hereby.
(g) Litigation; Compliance with Laws.
(i) Except as disclosed in the Warner-Lambert SEC Reports filed
prior to the date of this Agreement and except for any FDA action
which may arise out of the Advisory Committee meeting related to
Rezulin that is currently scheduled for March 26, 1999, there is no
suit, action, investigation or proceeding pending or, to the
Knowledge of Warner-Lambert, threatened, against or affecting Warner-
Lambert or any Subsidiary of Warner-Lambert having, or which would
reasonably be expected to have a Material Adverse Effect on Warner-
Lambert, nor is there any judgment, decree, injunction, rule or order
of any Governmental Entity or arbitrator outstanding against Warner-
Lambert or any Subsidiary of Warner-Lambert having, or which
reasonably would be expected to have a Material Adverse Effect on
Warner-Lambert.
(ii) Except as disclosed in the Warner-Lambert SEC Reports filed
prior to the date of this Agreement and except as would not
reasonably be expected to have a Material Adverse Effect on Warner-
Lambert, Warner-Lambert and its Subsidiaries hold all permits,
licenses, variances, exemptions, orders and approvals of all
Governmental Entities which are necessary for the operation of the
businesses of Warner-Lambert and its Subsidiaries, taken as a whole
(the "Warner-Lambert Permits"). Warner-Lambert and its Subsidiaries
are in compliance with the terms of the Warner-Lambert Permits,
except where the failure so to comply would not reasonably be
expected to have a Material Adverse Effect on Warner-Lambert. Except
as disclosed in the Warner-Lambert SEC Reports filed prior to the
date of this Agreement, the businesses of Warner-Lambert and its
<PAGE>
Subsidiaries are not being conducted in violation of, and Warner-
Lambert has not received any notices of violations with respect to,
any law, ordinance or regulation of any Governmental Entity, except
for possible violations which would not reasonably be expected to
have a Material Adverse Effect on Warner-Lambert.
(h) Absence of Certain Changes or Events. Except for liabilities
incurred in connection with this Agreement and the Stock Option Agreement, or
the transactions contemplated hereby, except as disclosed in the Warner-
Lambert SEC Reports filed prior to the date of this Agreement, except for any
FDA action which may arise out of the Advisory Committee meeting related to
Rezulin that is currently scheduled for March 26, 1999, and except as
permitted by Section 4.2, since January 1, 1999, Warner-Lambert and its
Subsidiaries have conducted their business only in the ordinary course and
there has not been (i) any change, circumstance or event which has had, or
would reasonably be expected to have, a Material Adverse Effect on Warner-
Lambert or (ii) any action taken by Warner-Lambert or any of its Subsidiaries
during the period from January 1, 1999 through the date of this Agreement
that, if taken during the period from the date of this Agreement through the
Effective Time, would constitute a breach of Section 4.2.
(i) Environmental Matters. Except as would not reasonably be
expected to have a Material Adverse Effect on Warner-Lambert, (i) the
operations of Warner-Lambert and, to the Knowledge of Warner-Lambert, any
entity for which Warner-Lambert may be responsible, has been and is in
compliance with all applicable Environmental Laws (as defined in Section
3.2(j)) and with all Environmental Permits (as defined in Section 3.2(j)),
and (ii) there are no pending or, to the Knowledge of Warner-Lambert,
threatened, actions, suits, claims, investigations or other proceedings
(collectively, "Actions") under or pursuant to Environmental Laws against
Warner-Lambert or, to the Knowledge of Warner-Lambert, any entity for which
Warner-Lambert may be responsible, or involving any real property currently
or, to the Knowledge of Warner-Lambert, formerly owned, operated or leased
by Warner-Lambert.
(j) Brokers or Finders. No agent, broker, investment banker,
financial advisor or other firm or Person is or will be entitled to any
broker's or finder's fee or any other similar commission or fee in connection
with any of the transactions contemplated by this Agreement or the Stock
Option Agreement, based upon arrangements made by or on behalf of Warner-
Lambert, except Goldman, Sachs & Co. (the "Warner-Lambert Financial
Advisor"), whose fees and expenses will be paid by Warner-Lambert in
accordance with Warner-Lambert's agreement with such firm.
<PAGE>
(k) Opinion of Warner-Lambert Financial Advisor. Warner-Lambert has
received the opinion of the Warner-Lambert Financial Advisor, dated the date
of this Agreement, to the effect that, as of such date, the Exchange Ratio is
fair, from a financial point of view, to Warner-Lambert, a copy of which
opinion has been made available to Agouron.
(l) Accounting Matters. To the Knowledge of Warner-Lambert, neither
Warner-Lambert nor any of its affiliates has taken or agreed to take any
action that would prevent Warner-Lambert from accounting for the Merger as a
"pooling of interests". At or prior to the Closing Date, Warner-Lambert has
received a letter from its independent public accountants addressed to
Warner-Lambert, to the effect that, based upon representations provided by
Warner-Lambert, accounting for the Merger as a pooling of interests under
Opinion 16 of the Accounting Principles Board, applicable SEC rules and
regulations and other authoritative literature is appropriate if the Merger
is consummated and closed as contemplated by this Agreement.
3.2 Representations and Warranties of Agouron. Except as set forth
in the Agouron Disclosure Schedule delivered by Agouron to Warner-Lambert
prior to the execution of this Agreement (the "Agouron Disclosure Schedule")
(each section of which qualifies the correspondingly numbered representation
and warranty or covenant to the extent specified therein), Agouron represents
and warrants to Warner-Lambert as follows:
(a) Organization, Standing and Power; Subsidiaries.
(i) Each of Agouron and each of its Subsidiaries is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization,
has the requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted,
except where the failure to be so organized, existing and in good
standing or to have such power and authority would not reasonably be
expected to have a Material Adverse Effect on Agouron and is duly
qualified and in good standing to do business in each jurisdiction in
which the nature of its business or the ownership or leasing of its
properties makes such qualification necessary other than in such
jurisdictions where the failure so to qualify or to be in good
standing would not reasonably be expected to have a Material Adverse
Effect on Agouron. The copies of the certificate of incorporation
and by-laws of Agouron which were previously furnished or made
available to Warner-Lambert are true, complete and correct copies of
such documents as in effect on the date of this Agreement.
<PAGE>
(ii) Exhibit 21 to Agouron's Annual Report on Form 10-K for the
year ended June 30, 1998, as amended ("Agouron 10-K", together with
Agouron's Form 10-Q for the quarterly period ended September 30, 1998
("Agouron September 98 10Q"), the "Agouron Reports") includes all the
Subsidiaries of Agouron which as of the date of this Agreement are
Significant Subsidiaries (as defined in Rule 1-02 of Regulation S-X
of the SEC). All the outstanding shares of capital stock of, or
other equity interests in, each such Significant Subsidiary have been
validly issued and are fully paid and nonassessable and are owned
directly or indirectly by Agouron, free and clear of all Liens and
free of any other restriction (including any restriction on the right
to vote, sell or otherwise dispose of such capital stock or other
ownership interests). Except as set forth in the Agouron Reports,
neither Agouron nor any of its Subsidiaries directly or indirectly
owns any equity or similar interest in, or any interest convertible
into or exchangeable or exercisable for, any corporation,
partnership, joint venture or other business association or entity,
that is or would reasonably be expected to be material to Agouron and
its Subsidiaries taken as a whole.
(b) Capital Structure.
(i) As of December 31, 1998, the authorized capital stock of
Agouron consisted of (A) 75,000,000 shares of Agouron Common Stock,
of which 31,728,847 shares were outstanding and (B) 2,000,000 shares
of Preferred Stock, without par value, none of which were outstanding
and 2,000 shares of which have been designated Series B Participating
Preferred Stock and reserved for issuance upon exercise of the rights
(the "Rights") distributed to the holders of Agouron Common Stock
pursuant to the Amended and Restated Rights Agreement dated as of
November 10, 1998, between Agouron and Chase Mellon Shareholder
Services, L.L.C., as Rights Agent, as amended (the "Rights
Agreement"). Since December 31, 1998 to the date of this Agreement,
there have been no issuances of shares of the capital stock of
Agouron or any other securities of Agouron other than issuances of
shares (and accompanying Rights) pursuant to options or rights
outstanding as of December 31, 1998 under the Benefit Plans of
Agouron. All issued and outstanding shares of the capital stock of
Agouron are duly authorized, validly issued, fully paid and
nonassessable, and no class of capital stock is entitled to
preemptive rights. There were outstanding as of December 31, 1998 no
options, warrants or other rights to acquire capital stock from
Agouron other than (x) the Rights and (y) options representing in the
aggregate the right to purchase no more than 8,747,636 shares of
Agouron Common Stock (collectively, the "Agouron Stock Options")
<PAGE>
under the Agouron Restated 1996 Stock Option Plan, Agouron 1985 Stock
Option Plan, Agouron 1990 Stock Option Plan, Agouron 1998 Stock
Option Plan, Agouron Restated Employee Stock Purchase Plan, the
Alanex Corporation 1993 Stock Plan and the Alanex Corporation 1996
Equity Incentive Plan and other individual Alanex stock option
agreements, as each such plan has been amended (collectively, the
"Agouron Stock Option Plans"). Section 3.2(b) of the Agouron
Disclosure Schedule sets forth a complete and correct list, as of
December 31, 1998, of the number of shares of Agouron Common Stock
subject to Agouron Stock Options or other rights to purchase or
receive Agouron Common Stock granted under the Benefit Plans of
Agouron or otherwise, the dates of grant and the exercise prices
thereof. No options or warrants or other rights to acquire capital
stock from Agouron have been issued or granted since December 31,
1998 to the date of this Agreement, other than pursuant to the Stock
Option Agreement or as permitted under Section 4.1 of this Agreement.
(ii) No bonds, debentures, notes or other indebtedness of
Agouron having the right to vote on any matters on which stockholders
may vote ("Agouron Voting Debt") are issued or outstanding.
(iii) Except as otherwise set forth in this Section 3.2(b), as
of the date of this Agreement, there are no securities, options,
warrants, calls, rights, commitments, agreements, arrangements or
undertakings of any kind to which Agouron or any of its Subsidiaries
is a party or by which any of them is bound obligating Agouron or any
of its Subsidiaries to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock or other voting
securities of Agouron or any of its Subsidiaries or obligating
Agouron or any of its Subsidiaries to issue, grant, extend or enter
into any such security, option, warrant, call, right, commitment,
agreement, arrangement or undertaking. As of the date of this
Agreement, there are no outstanding obligations of Agouron or any of
its Subsidiaries to repurchase, redeem or otherwise acquire any
shares of capital stock of Agouron or any of its Subsidiaries.
(c) Authority; No Conflicts.
(i) Agouron has all requisite corporate power and authority to
enter into this Agreement and the Stock Option Agreement and to
consummate the transactions contemplated hereby and thereby, subject
in the case of the consummation of the Merger to the adoption of this
Agreement by the Required Agouron Vote (as defined in Section
3.2(g)). The execution and delivery of this Agreement and the Stock
Option Agreement and the consummation of the transactions
<PAGE>
contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of Agouron, subject in the
case of the consummation of the Merger to the adoption of this
Agreement by the Required Agouron Vote. Each of this Agreement and
the Stock Option Agreement has been duly executed and delivered by
Agouron and constitutes a valid and binding agreement of Agouron,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or affecting
creditors generally or by general equity principles (regardless of
whether such enforceability is considered in a proceeding in equity
or at law) or by an implied covenant of good faith and fair dealing.
(ii) The execution and delivery of this Agreement and the Stock
Option Agreement by Agouron does not or will not, as the case may be,
and the consummation by Agouron of the Merger and the other
transactions contemplated hereby and thereby will not, conflict with,
or result in a Violation pursuant to: (A) any provision of the
certificate of incorporation or by-laws of Agouron or any Subsidiary
of Agouron or (B) except as would not reasonably be expected to have
a Material Adverse Effect on Agouron, subject to obtaining or making
the consents, approvals, orders, authorizations, registrations,
declarations and filings referred to in paragraph (iii) below, any
loan or credit agreement, note, mortgage, bond, indenture, lease,
benefit plan or other agreement, obligation, instrument, permit,
concession, franchise, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Agouron or any
Subsidiary of Agouron or their respective properties or assets.
(iii) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is
required by or with respect to Agouron or any Subsidiary of Agouron
in connection with the execution and delivery of this Agreement or
the Stock Option Agreement by Agouron or the consummation of the
Merger and the other transactions contemplated hereby, except the
Necessary Consents and such consents, approvals, orders,
authorizations, registrations, declarations and filings the failure
of which to make or obtain would not reasonably be expected to have a
Material Adverse Effect on Agouron.
(d) Reports and Financial Statements.
(i) Agouron has filed all required registration statements,
prospectuses, reports, schedules, forms, statements and other
documents required to be filed by it with the SEC since July 1, 1998
<PAGE>
(collectively, including all exhibits thereto, the "Agouron SEC
Reports"). No Subsidiary of Agouron is required to file any form,
report, registration statement or prospectus or other document with
the SEC. None of the Agouron SEC Reports, as of their respective
dates (and, if amended or superseded by a filing prior to the date of
this Agreement or the Closing Date, then on the date of such filing),
contained or will contain any untrue statement of a material fact or
omitted or will 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
Agouron SEC Reports together with any public announcements in a Dow
Jones News Release made by Agouron after the date hereof, taken as a
whole, as of the Effective Time will 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 existing as of the Effective Time, not
misleading. Each of the financial statements (including the related
notes) included in the Agouron SEC Reports presents fairly, in all
material respects, the consolidated financial position and
consolidated results of operations and cash flows of Agouron and its
Subsidiaries as of the respective dates or for the respective periods
set forth therein, all in conformity with GAAP applied on a
consistent basis throughout the periods involved except as otherwise
noted therein, and subject, in the case of the unaudited interim
financial statements, to normal and recurring adjustments that were
not or are not expected to be material in amount. All of such
Agouron SEC Reports, as of their respective dates (and as of the date
of any amendment to the respective Agouron SEC Report), complied as
to form in all material respects with the applicable requirements of
the Securities Act and the Exchange Act and the rules and regulations
promulgated thereunder.
(ii) Except as disclosed in the Agouron Reports filed prior to
the date hereof, since June 30, 1998, Agouron and its Subsidiaries
have not incurred any liabilities that are of a nature that would be
required to be disclosed on a balance sheet of Agouron and its
Subsidiaries or the footnotes thereto prepared in conformity with
GAAP, other than (A) liabilities incurred in the ordinary course of
business or (B) liabilities that would not, either individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect on Agouron.
<PAGE>
(e) Information Supplied.
(i) None of the information supplied or to be supplied by
Agouron for inclusion or incorporation by reference in (A) the Form
S-4 will, at the time the Form S-4 is filed with the SEC, at any time
it is amended or supplemented or at the time it becomes effective
under the Securities Act, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (B)
the Proxy Statement will, on the date it is first mailed to Agouron
stockholders or at the time of the Agouron Stockholders Meeting,
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 were made, not misleading. The Proxy Statement will
comply as to form in all material respects with the requirements of
the Exchange Act and the Securities Act and the rules and regulations
of the SEC thereunder.
(ii) Notwithstanding the foregoing provisions of this Section
3.2(e), no representation or warranty is made by Agouron with respect
to statements made or incorporated by reference in the Form S-4 or
the Proxy Statement based on information supplied by Warner-Lambert
or Merger Sub for inclusion or incorporation by reference therein.
(f) Board Approval. The Board of Directors of Agouron, by
resolutions duly adopted by unanimous vote of those voting at a meeting duly
called and held and not subsequently rescinded or modified in any way (the
"Agouron Board Approval"), has duly (i) determined that this Agreement and
the Merger are fair to and in the best interests of Agouron and its
stockholders, (ii) approved this Agreement and the Stock Option Agreement,
and the Merger, (iii) recommended that the stockholders of Agouron adopt this
Agreement, and approve the Merger and directed that this Agreement, and the
transactions contemplated hereby be submitted for consideration by Agouron's
stockholders at the Agouron Stockholders Meeting and (iv) confirmed that the
Agouron Stock Options will not accelerate as a result of the Merger unless
the optionee is involuntarily terminated by the Surviving Corporation within
one year of the Effective Time. To the Knowledge of Agouron, no state
takeover statute is applicable to the Merger or the Stock Option Agreement or
the other transactions contemplated hereby and thereby.
(g) Vote Required. The affirmative vote of the holders of a
majority of the outstanding shares of Agouron Common Stock to approve the
Merger (the "Required Agouron Vote") is the only vote of the holders of any
<PAGE>
class or series of Agouron capital stock necessary to adopt this Agreement
and approve the Merger and the other transactions contemplated hereby.
(h) Litigation; Compliance with Laws.
(i) Except as disclosed in the Agouron Reports filed prior to
the date of this Agreement, there is no suit, action, investigation
or proceeding pending or, to the Knowledge of Agouron, threatened,
against or affecting Agouron or any Subsidiary of Agouron having, or
which would reasonably be expected to have a Material Adverse Effect
on Agouron, nor is there any judgment, decree, injunction, rule or
order of any Governmental Entity or arbitrator outstanding against
Agouron or any Subsidiary of Agouron having, or which reasonably
would be expected to have a Material Adverse Effect on Agouron.
(ii) Except as disclosed in the Agouron Reports filed prior to
the date of the Agreement and except as would not reasonably be
expected to have a Material Adverse Effect on Agouron, Agouron and
its Subsidiaries hold all permits, licenses, variances, exemptions,
orders and approvals of all Governmental Entities necessary for the
operation of the businesses of Agouron and its Subsidiaries, taken as
a whole (the "Agouron Permits"). Agouron and its Subsidiaries are in
compliance with the terms of the Agouron Permits, except where the
failure so to comply would not reasonably be expected to have a
Material Adverse Effect on Agouron. Except as disclosed in the
Agouron Reports filed prior to the date of this Agreement, the
businesses of Agouron and its Subsidiaries are not being conducted in
violation of, and Agouron has not received any notices of violations
with respect to, any law, ordinance or regulation of any Governmental
Entity, except for possible violations which would not reasonably be
expected to have a Material Adverse Effect on Agouron.
(i) Absence of Certain Changes or Events. Except for liabilities
incurred in connection with this Agreement and the Stock Option Agreement or
the transactions contemplated hereby and thereby, except as disclosed in the
Agouron Reports filed prior to the date of this Agreement, and except as
permitted by Section 4.1, since June 30, 1998, Agouron and its Subsidiaries
have conducted their business only in the ordinary course and there has not
been (i) any change, circumstance or event which has had, or would reasonably
be expected to have, a Material Adverse Effect on Agouron or (ii) any action
taken by Agouron or any of its Subsidiaries during the period from June 30,
1998 through the date of this Agreement that, if taken during the period from
the date of this Agreement through the Effective Time, would constitute a
breach of Section 4.1.
<PAGE>
(j) Environmental Matters. Except as disclosed in Section 3.2(j) of
the Agouron Disclosure Schedule and except as would not reasonably be
expected to have a Material Adverse Effect on Agouron, (i) the operations of
Agouron and its Subsidiaries and, to the Knowledge of Agouron, any entity
for which any of them may be responsible, have been and are in compliance
with all applicable Environmental Laws and with all Environmental Permits,
(ii) there are no pending or, to the Knowledge of Agouron, threatened,
actions, suits, claims, investigations or other proceedings (collectively,
"Actions") under or pursuant to Environmental Laws against Agouron or its
Subsidiaries or, to the Knowledge of Agouron, any entity for which any of
them may be responsible, or involving any real property currently or, to the
Knowledge of Agouron, formerly owned, operated or leased by Agouron or its
Subsidiaries, (iii) Agouron and its Subsidiaries and, to the Knowledge of
Agouron, any entity for which any of them may be responsible, are not subject
to any Environmental Liabilities and, to the Knowledge of Agouron, no facts,
circumstances or conditions relating to, arising from, associated with or
attributable to any real property currently or, to the Knowledge of Agouron,
formerly owned, operated or leased by Agouron or its Subsidiaries or any
entity for which any of them may be responsible, or operations thereon would
reasonably be expected to result in Environmental Liabilities, (iv) to the
Knowledge of Agouron, all real property owned and all real property operated
or leased by Agouron or its Subsidiaries or any entity for which any of them
may be responsible is free of Hazardous Materials in conditions or
concentrations that would reasonably be expected to have an adverse effect on
human health or the environment and none of Agouron, any of its Subsidiaries
and any entity for which any of them may be responsible has disposed of any
Hazardous Materials on or about such premises, (v) to the Knowledge of
Agouron, no release, discharge, spillage or disposal of any Hazardous
Material and no soil, water or air contamination by any Hazardous Material
has occurred or is occurring in, from or on the premises the result of which
would have a Material Adverse Effect on Agouron, and (vi) Agouron has
provided to Warner-Lambert all Environmental Reports prepared or dated since
January 1, 1990, and any prior material Environmental Reports, in the
possession or control of Agouron or any of its Subsidiaries.
As used in this Agreement, "Environmental Laws" means any and all
laws, rules, orders, regulations, statutes, ordinances, guidelines, codes,
decrees, or other legally enforceable requirements (including, without
limitation, common law) of any international authority, foreign government,
the United States, or any state, local, municipal or other Governmental
Entity, regulating, relating to or imposing liability or standards of conduct
concerning protection of the environment or of human health, or employee
health and safety, including without limitation the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sections 9601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
<PAGE>
Sections 1801 et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6901 et seq., the Clean Water Act, 33 U.S.C. Sections 1251 et seq.,
the Clean Air Act, 42 U.S.C. Sections 7401 et seq., the Toxic Substances
Control Act, 15 U.S.C. Sections 2601 et seq., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C., Sections 136 et seq., Occupational
Safety and Health Act 29 U.S.C. Sections 651 et seq. and the Oil Pollution
Act of 1990, 33 U.S.C. Sections 2701 et seq., as such laws have been amended
or supplemented, and the regulations promulgated pursuant thereto, and all
analogous state or local statutes. As used in this Agreement, "Environmental
Liabilities" with respect to any person means any and all liabilities of or
relating to such person or any of its Subsidiaries (including any entity
which is, in whole or in part, a predecessor of such person or any of such
Subsidiaries), whether vested or unvested, contingent or fixed, actual or
potential, known or unknown, which (i) arise under or relate to matters
covered by Environmental Laws or with respect to Hazardous Materials, and
(ii) relate to actions occurring or conditions existing on or prior to the
Closing Date. As used in this Agreement, "Environmental Permits" means any
and all permits, consents, licenses, approvals, registrations,
notifications, exemptions and any other authorization required under any
applicable Environmental Law. As used in this Agreement, "Environmental
Report" means any report, study, assessment, audit, or other similar document
that addresses any issue of noncompliance with, or liability under, any
Environmental Law that may affect Agouron or any of its Subsidiaries. As
used in this Agreement, "Hazardous Materials" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos,
pollutants, contaminants, radioactivity, and any other substances of any
kind, whether or not any such substance is defined as hazardous or toxic
under any Environmental Law, that is regulated pursuant to or could give rise
to liability under any Environmental Law.
(k) Intellectual Property. Except as would not reasonably be
expected to have a Material Adverse Effect on Agouron, (a) Agouron and each
of its Subsidiaries owns, or is licensed to use (in each case, free and clear
of any Liens), all Intellectual Property used in or necessary for the conduct
of its business as currently conducted; (b) to the Knowledge of Agouron, the
use of any Intellectual Property by Agouron and its Subsidiaries does not
infringe on or otherwise violate the rights of any Person and is in
accordance with any applicable license pursuant to which Agouron or any
Subsidiary acquired the right to use any Intellectual Property; (c) to the
Knowledge of Agouron, no Person is challenging, infringing on or otherwise
violating any right of Agouron or any of its Subsidiaries with respect to any
Intellectual Property owned by or licensed to Agouron or its Subsidiaries;
and (d) neither Agouron nor any of its Subsidiaries has received any written
notice of any pending claim with respect to any Intellectual Property used by
<PAGE>
Agouron and its Subsidiaries and to the Knowledge of Agouron no Intellectual
Property owned or licensed by Agouron or its Subsidiaries is being used or
enforced in a manner that would result in the abandonment, cancellation or
unenforceability of such Intellectual Property.
For purposes of this Agreement, "Intellectual Property" shall mean
trademarks, service marks, brand names, certification marks, trade dress and
other indications of origin, the goodwill associated with the foregoing and
registrations in any jurisdiction of, and applications in any jurisdiction to
register, the foregoing, including any extension, modification or renewal of
any such registration or application; inventions, discoveries and ideas,
whether patentable or not, in any jurisdiction; patents, applications for
patents (including, without limitation, divisions, continuations, continued
prosecution applications, continuations in part and renewal applications),
and any renewals, extensions or reissues thereof, in any jurisdiction; know-
how, trade secrets and confidential information and rights in any
jurisdiction to limit the use or disclosure thereof by any person; writings
and other works, whether copyrightable or not, in any jurisdiction;
registrations or applications for registration of copyrights in any
jurisdiction, and any renewals or extensions thereof; and any similar
intellectual property or proprietary rights.
(l) Rights Agreement. The Board of Directors has approved an
amendment (such amendment is hereinafter referred to as the "Rights
Amendment") to the Rights Agreement so as to provide that: neither Warner-
Lambert nor Merger Sub will become an "Acquiring Person" and that no "Stock
Acquisition Date" or "Distribution Date" (as such terms are defined in the
Rights Agreement) will occur as a result of the approval, execution and
delivery of this Agreement or the Stock Option Agreement and the consummation
of the transactions contemplated hereby or thereby, and the Rights (as
defined in the Rights Agreement) will expire immediately prior to the
Effective Time. Promptly following the execution and delivery of this
Agreement, Agouron shall take all action necessary to make the Rights
Amendment effective.
(m) Brokers or Finders. No agent, broker, investment banker,
financial advisor or other firm or Person is or will be entitled to any
broker's or finder's fee or any other similar commission or fee in connection
with any of the transactions contemplated by this Agreement or the Stock
Option Agreement, based upon arrangements made by or on behalf of Agouron
except PaineWebber Incorporated and Westview Securities Inc. (the "Agouron
Financial Advisors"), whose fees and expenses will be paid by Agouron in
accordance with Agouron's agreements with such firms, copies of which have
been provided to Warner-Lambert.
<PAGE>
(n) Opinion of Agouron Financial Advisor. Agouron has received the
opinion of PaineWebber Incorporated, dated the date of this Agreement, to the
effect that, as of such date, the Merger Consideration is fair, from a
financial point of view, to the holders of Agouron Common Stock, a copy of
which opinion has been made available to Warner-Lambert.
(o) Accounting Matters. To the Knowledge of Agouron, neither
Agouron nor any of its affiliates has taken or agreed to take any action that
would prevent Warner-Lambert from accounting for the Merger as a "pooling of
interests". At or prior to the Closing Date, Agouron has received a letter
from its independent public accountants addressed to Agouron, to the effect
that, based upon representations provided by Agouron, accounting for the
Merger as a pooling of interests under Opinion 16 of the Accounting
Principles Board, applicable SEC rules and regulations and other
authoritative literature is appropriate if the Merger is consummated and
closed as contemplated by this Agreement.
(p) Taxes. Except as previously discussed between the parties,
Agouron and each of its Subsidiaries (which, for the purposes of this Section
3.2(p), shall include any predecessor of any Subsidiary and any incorporated
or unincorporated organization in which Agouron alone or together with its
Subsidiaries holds an interest of 40% or more of profits or losses) (i) have
prepared in good faith and duly and timely filed (taking into account any
extension of time within which to file) all material Tax Returns (as defined
below) required to be filed by any of them and all such filed Tax Returns are
complete and accurate in all material respects; (ii) to the Knowledge of
Agouron, have paid all Material Taxes that are shown as due and payable on
such filed Tax Returns or that Agouron or any of its Subsidiaries are
obligated to pay without the filing of a Tax Return; (iii) to the Knowledge
of Agouron, have paid all other Material charges, claims and assessments
received to date in respect of Taxes other than those being contested in good
faith for which provision has been made in accordance with GAAP on the most
recent balance sheet included in the Agouron 10-K; (iv) have properly accrued
on the balance sheet, in accordance with GAAP, all material contingent or
deferred Taxes that have not become due; (v) to the Knowledge of Agouron,
have withheld from amounts owing to any employee, creditor or other Person
all Material Taxes required by law to be withheld and have paid over to the
proper governmental authority in a timely manner all such withheld amounts to
the extent due and payable; (vi) as of the date hereof, have neither extended
nor waived any applicable statute of limitations with respect to United
States federal or state income or franchise Taxes and have not otherwise
agreed to any extension of time with respect to a United States federal or
state income or franchise Tax assessment or deficiency; (vii) have never been
members of any consolidated group for income tax purposes other than the
consolidated group of which Agouron is the common parent; and (viii) are not
<PAGE>
parties to any tax sharing agreement or arrangement other than with each
other. As of the date hereof, there are not pending or threatened in writing
any audits, examinations, investigations, litigation, or other proceedings in
respect of Taxes of Agouron or any Subsidiary. No liens for Taxes exist with
respect to any of the assets or properties of Agouron or its Subsidiaries,
except for statutory liens for Taxes not yet due or payable or that are being
contested in good faith. Agouron has made available to Warner-Lambert true
and correct copies of the United States federal income Tax Returns filed by
Agouron and its Subsidiaries for each of the fiscal years ended June 30,
1998, 1997 and 1996. There is no contract or agreement, plan or arrangement
by Agouron or its Subsidiaries covering any person that, individually or
collectively, could give rise to the payment of any amount that would not be
deductible by Agouron or its Subsidiaries by reason of Section 280G of the
Code or would constitute compensation in excess of the limitation set forth
in Section 162(m) of the Code. As used in clauses (ii), (iii), and (v) of
this Section 3.2(p), the term "Material" shall mean an amount which, in the
aggregate, exceeds $1,000,000.
As used in this Agreement, (i) the term "Tax" (including, with
correlative meaning, the terms "Taxes" and "Taxable") includes all federal,
state, local and foreign income, profits, premium, franchise, gross receipts,
environmental, customs duty, capital stock, severance, stamp, payroll, sales,
employment, unemployment, disability, use, property, withholding, excise,
production, value added, occupancy and other taxes, duties or governmental
levies of any nature whatsoever, together with all interest, penalties and
additions imposed with respect to such amounts or filing requirements and any
interest in respect of such penalties and additions, and (ii) the term "Tax
Return" includes all returns and reports (including elections, declarations,
disclosures, schedules, estimates, information returns, claim for refund, and
amended returns) required to be supplied to a Tax authority relating to
Taxes.
(q) Certain Contracts. As of the date hereof except as filed as
part of the Agouron Reports, neither Agouron nor any of its Subsidiaries is a
party to or bound by (i) any "material contract" (as such term is defined in
Item 601(b)(10) of Regulation S-K of the SEC) or (ii) any non-competition
agreement or any other agreement or arrangement that limits or otherwise
restricts Agouron or any of its Subsidiaries or any of their respective
affiliates or any successor thereto or that would, after the Effective Time,
to the Knowledge of Agouron, limit or restrict Warner-Lambert or any of its
affiliates (including the Surviving Corporation) or any successor thereto,
from engaging or competing in any line of business or in any geographic area,
which agreement or arrangement would reasonably be expected to have a
Material Adverse Effect on Warner-Lambert and its Subsidiaries (including the
<PAGE>
Surviving Corporation and its Subsidiaries), taken together, after giving
effect to the Merger.
(r) Employee Benefit Plans.
(i) Section 3.2(r)(i) of the Agouron Disclosure Schedule contains a
true and complete list of each "employee benefit plan" (within the
meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), (including without limitation
multiemployer plans within the meaning of ERISA Section 3(37)),
stock purchase, stock option, severance, employment, change-in-
control, fringe benefit, collective bargaining, bonus, incentive,
deferred compensation and all other employee benefit plans,
agreements, programs, policies or other arrangements, whether or not
subject to ERISA, whether formal or informal, oral or written,
legally binding or not under which any employee or former employee of
Agouron or any of its Subsidiaries has any present or future right to
benefits or under which Agouron or any of its Subsidiaries has any
present or future liability. All such plans, agreements, programs,
policies and arrangements shall be collectively referred to as the
"Plans".
(ii) With respect to each Plan, Agouron has delivered or made
available to Warner-Lambert a current, accurate and complete copy (or,
to the extent no such copy exists, an accurate description) thereof
and, to the extent applicable, (A) any related trust agreement,
annuity contract or other funding instrument; (B) the most recent
determination letter; (C) any summary plan description and other
written communications (or a description of any oral communications)
by Agouron or any of its Subsidiaries to its employees concerning the
extent of the benefits provided under a Plan; and (D) for the three
most recent years: (I) the Form 5500 and attached schedules;
(II) audited financial statements; (III) actuarial valuation reports;
and (IV) attorney responses to auditors' requests for information.
(iii) (A) Each Plan has been established and administered in
accordance with its terms, and in compliance with the applicable
provisions of ERISA, the Code and other applicable laws, rules and
regulations and if intended to be qualified within the meaning of
Section 401(a) of the Code is so qualified; (B) with respect to any
Plan, no actions, suits or claims (other than routine claims for
benefits in the ordinary course) are pending or threatened;
(C) neither Agouron nor any other party has engaged in a prohibited
transaction, as such term is defined under Section 4975 of the Code
or Section 406 of ERISA, which would subject Agouron, the Surviving
Corporation, any of their Subsidiaries, Merger Sub or Warner-Lambert
to any taxes, penalties or other liabilities under Section 4975 of
the Code or Sections 409 or 502(i) of ERISA and Agouron has no other
liability under the Code with respect to any Plan, including
liability under any other provision of Chapter 43 of the Code;
<PAGE>
(D) no Plan provides for an increase in benefits on or after the
Closing Date; and (E) each Plan may be amended or terminated
without obligation or liability (other than those obligations and
liabilities for which specific assets have been set aside in a trust
or other funding vehicle or reserved for on Agouron's September 30,
1998 balance sheet included in the Agouron September 98 10Q).
(iv) Neither Agouron nor any member of its Controlled Group has
ever maintained, sponsored, administered or contributed to an
employee benefit plan subject to Title IV of ERISA, a multiemployer
plan (within the meaning of Section 4001(a)(3) of ERISA) or a welfare
benefit plan that provide coverage or benefits to former employees
(other than benefit continuation rights under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended).
(v) No Plan exists which could result in the payment to any
employee of Agouron or any of its Subsidiaries of any money or other
property or rights or accelerate or provide any other rights or
benefits to any such employee as a result of the transactions
contemplated by this Agreement.
(vi) All individuals who are or have been eligible to participate
in the Plans based upon the eligibility provisions set forth therein
or under applicable law have been provided with a timely opportunity
to participate.
(s) Labor Matters. (1) Neither Agouron nor any of its Subsidiaries
is a party to, or bound by, any collective bargaining agreement, contract or
other agreement or understanding with a labor union or labor organization;
(2) to the Knowledge of Agouron, neither Agouron nor any of its Subsidiaries
is the subject of any proceeding asserting that it or any Subsidiary has
committed an unfair labor practice or sex, age, race or other discrimination
or seeking to compel it to bargain with any labor organization as to wages or
conditions of employment; (3) there are no current or threatened
organizational activities or demands for recognition by a labor organization
seeking to represent employees of Agouron or any Subsidiary, or labor strike
and no such activities have occurred during the past 24 months; (4) no
grievance, arbitration, complaint or investigation is pending or, to the
Knowledge of Agouron, threatened against Agouron or any of its Subsidiaries
which, individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect with respect to Agouron; (5) to the Knowledge of
Agouron, Agouron and each Subsidiary is in compliance with all applicable
laws (domestic and foreign), agreements, contracts, and policies relating to
employment, employment practices, wages, hours, and terms and conditions of
employment except for failures so to comply, if any, that individually or in
the aggregate could not reasonably be expected to have a Material Adverse
Effect with respect to Agouron; (6) Agouron has complied in all material
<PAGE>
respects with its payment obligations to all employees of Agouron and its
Subsidiaries in respect of all wages, salaries, commissions, bonuses,
benefits and other compensation due and payable to such employees under any
Agouron policy, practice, agreement, plan, program or any statute or other
law; (7) Agouron is not liable for any severance pay or other payments to any
employee or former employee arising from the termination of employment under
any benefit or severance policy, practice, agreement, plan, or program of
Agouron, nor to the Knowledge of Agouron will Agouron have any liability
which exists or arises, or may be deemed to exist or arise, under any
applicable law or otherwise, as a result of or in connection with the
transactions contemplated hereunder or as a result of the termination by
Agouron of any persons employed by Agouron or any of its Subsidiaries on or
prior to the Effective Time of the Merger except as required by Code Section
4980B; and (8) Agouron is in compliance with its obligations pursuant to the
Worker Adjustment and Retraining Notification Act of 1988 ("WARN") and part 6
and 7 of Title I of ERISA, to the extent applicable, and all other employee
notification and bargaining obligations arising under any collective
bargaining agreement or statute.
(t) Affiliate Transactions. Except as disclosed in Section 3.2(t)
of the Agouron Disclosure Schedule, there are no material contracts,
commitments, agreements, arrangements or other transactions between Agouron
or any of its Subsidiaries, on the one hand, and any (i) officer or director
of Agouron or any of its Subsidiaries, (ii) record or beneficial owner of
five percent or more of the voting securities of Agouron or (iii) affiliate
(as such term is defined in Regulation 12b-2 promulgated under the Exchange
Act) of any such officer, director or beneficial owner, on the other hand.
(u) Material Contract Defaults.
(i) Agouron has provided or made available to Warner-Lambert
copies, and has provided a true and correct list to Warner-Lambert,
of all material contracts, agreements, commitments, arrangements,
leases, policies or other instruments to which it or any of its
Subsidiaries is a party or by which it or any such Subsidiary is
bound ("Material Contracts"). Neither Agouron nor any of its
Subsidiaries is, or has received any notice or has any Knowledge
that any other party is, in default (or would be in default but for
the lapse of time or the giving of notice or both) in any respect
under any such Material Contract, except for those defaults which
could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect on Agouron.
(ii) Agouron has made available to Warner-Lambert (x) true and
correct copies of all loan or credit agreements, notes, bonds,
mortgages, indentures and other agreements and instruments pursuant
to which any indebtedness for borrowed money of Agouron or any of
<PAGE>
its Subsidiaries in an aggregate principal amount in excess of
$200,000 is outstanding or may be incurred and (y) accurate
information regarding the respective principal amounts currently
outstanding thereunder.
(v) Insurance. Agouron has provided or made available to Warner-
Lambert true, correct and complete copies of all policies of insurance to
which Agouron is a party or is a beneficiary or named insured. Agouron
maintains insurance coverage with reputable insurers in such amounts and
covering such risks as are in accordance with normal industry practice for
companies engaged in businesses similar to that of Agouron (taking into
account the cost and availability of such insurance).
(w) Year 2000 Compliance. (i) Except as disclosed on Section 3.2(w)
of the Agouron Disclosure Schedule, all computer hardware, firmware,
software, systems, databases, devices, machinery, equipment and related items
(including embedded microcontrollers in non-computer equipment), embedded
within their products, and/or necessary for Agouron and its Subsidiaries to
carry on their business as presently conducted ("Systems") are Year 2000
Compliant, or will be Year 2000 Compliant in sufficient time so as to avoid
causing a Material Adverse Effect with respect to Agouron. For purposes
hereof, "Year 2000 Compliant" means, when used with respect to the Systems,
that such Systems, whether used alone or in combination, will retain full
functionality and, without interruption, will correctly differentiate between
years, in different centuries, and will accurately process date/time data
from, into and between the twentieth and twenty-first centuries, including
leap year calculations and unusual date situations (e.g., 9/9/99).
(ii) Agouron and its Subsidiaries have (A) undertaken an assessment
of all Systems that could be adversely affected by a failure to be Year 2000
Compliant on a timely basis, (B) developed a plan and time line for becoming,
and for ensuring that their material suppliers become, Year 2000 Compliant on
a timely basis and (C) to date, implemented such plan in accordance with such
timetable in all material respects. Based on such inventory, review and
assessment, Agouron hereby represents and warrants to Warner-Lambert that the
estimated total remaining cost of rendering the Systems Year 2000 Compliant
is not expected to exceed $1,000,000.
(x) Supply. As of the date hereof, to the Knowledge of Agouron,
there are no circumstances or facts concerning third party suppliers of
active ingredient, bulk product and finished product to Agouron (as they
relate to Viracept) that would have a material adverse effect on the
continued supply of such materials.
<PAGE>
(y) Investigational Compounds and Viracept. As of the date hereof,
Agouron has provided to Warner-Lambert all material information relating to
AG3340, Remune, AG1549, AG7088 and AG1776 (the "Investigational Compounds")
and Viracept and to the Knowledge of Agouron, there are no circumstances or
facts relating to the Investigational Compounds or Viracept that would
individually or in the aggregate be reasonably likely to have a material
adverse effect on the development of the Investigational Compounds or the
marketing of Viracept.
(z) Generic Drug Enforcement Act. To the Knowledge of Agouron,
none of the individuals set forth on Exhibit 3.2(z) have ever (i) been
employed or contracted for services by Agouron, or (ii) contributed to the
development of any of the Investigational Compounds.
3.3 Representations and Warranties of Warner-Lambert and Merger Sub.
Warner-Lambert and Merger Sub represent and warrant to Agouron as follows:
(a) Organization. Merger Sub is a corporation duly incorporated,
validly existing and in good standing under the laws of California and Merger
Sub is a direct wholly-owned subsidiary of Warner-Lambert.
(b) Corporate Authorization. Merger Sub has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
Merger Sub of this Agreement and the consummation by Merger Sub of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Merger Sub. This Agreement has been duly
executed and delivered by Merger Sub and constitutes a valid and binding
agreement of Merger Sub, enforceable against it in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors generally or by general equity principles (regardless of whether
such enforceability is considered in a proceeding in equity or at law) or by
an implied covenant of good faith and fair dealing.
(c) Non-Contravention. The execution, delivery and performance by
Merger Sub of this Agreement and the consummation by Merger Sub of the
transactions contemplated hereby do not and will not contravene or conflict
with the certificate of incorporation or by-laws of Merger Sub.
(d) No Business Activities. Merger Sub has not conducted any
activities other than in connection with the organization of Merger Sub, the
negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby. Merger Sub has no Subsidiaries.
<PAGE>
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
4.1 Conduct of Business of Agouron Pending the Merger. Agouron
covenants and agrees that, during the period from the date hereof to the
Effective Time, unless Warner-Lambert shall otherwise agree in writing in
advance, the businesses of Agouron and its Subsidiaries shall be conducted
only in, and Agouron and its Subsidiaries shall not take any action except
in, the ordinary course of business and in a manner consistent with past
practice and in compliance with applicable laws; and Agouron and its
Subsidiaries shall each use its commercially reasonable efforts to preserve
substantially intact the business organization of Agouron and its
Subsidiaries, to keep available the services of the present officers,
significant employees and consultants of Agouron and its Subsidiaries and to
preserve the present relationships of Agouron and its subsidiaries with such
of the customers, suppliers, licensors, licensees, or distributors with which
Agouron or any of its Subsidiaries has significant business relations. By
way of amplification and not limitation, neither Agouron nor any of its
Subsidiaries shall, between the date of this Agreement and the Effective
Time, except as set forth in Section 4.1 of the Agouron Disclosure Schedule,
directly or indirectly do, or propose or commit to do, any of the following
without the prior written consent of Warner-Lambert, which consent shall not
be unreasonably delayed (but may be withheld):
(a) Amend its Certificate of Incorporation or By-Laws or
equivalent organizational documents;
(b) Issue, deliver, sell, pledge, dispose of or encumber, or
authorize or commit to the issuance, sale, pledge, disposition or
encumbrance of, (A) any shares of capital stock of any class, or any
options, warrants, convertible securities or other rights of any kind
to acquire any shares of capital stock, or any other ownership
interest (including but not limited to stock appreciation rights or
phantom stock), of Agouron or any of its Subsidiaries (except for the
issuance of up to 6,108,552 shares of Agouron Common Stock issuable
upon exercise of outstanding options granted under the Agouron Stock
Option Plans) or (B) any assets of Agouron or any of its
Subsidiaries, except for sales of products and payments made pursuant
to existing contracts in the ordinary course of business and in a
manner consistent with past practice;
(c) Declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with
respect to any of its capital stock;
<PAGE>
(d) Reclassify, combine, split, subdivide or redeem, purchase or
otherwise acquire, directly or indirectly, any of its capital stock;
(e) (i) Acquire (by merger, consolidation or acquisition of
stock or assets) any corporation, partnership or other business
organization or division thereof or (except for the purchase of
inventory in the ordinary course of business) any assets; (ii)
transfer, lease, mortgage, or otherwise dispose of or subject to any
lien any of its assets (including capital stock of Subsidiaries),
(iii) incur any indebtedness for borrowed money or issue any debt
securities or assume, guarantee (other than guarantees for purchase
orders made in the ordinary course of business) or endorse, or
otherwise as an accommodation become responsible for, the obligations
of any person, or make any loans, advances or capital contributions
to, or investments in, any other person (other than borrowings
incurred with the prior written consent of Warner-Lambert (which
consent shall not be unreasonably withheld or delayed), in an
aggregate amount not to exceed $5,000,000); (iv) enter into any
material contract or agreement or enter into, or amend or terminate
any joint venture arrangements; (v) enter into any agreement as
licensee or licensor, (vi) enter into any commitments or
transactions material, individually or in the aggregate, to Agouron
and its Subsidiaries taken as a whole; (vii) authorize any single
capital expenditure which is in excess of $300,000 or capital
expenditures which are, in the aggregate, in excess of $750,000 for
Agouron and its Subsidiaries taken as a whole other than capital
expenditures reflected in Agouron's fiscal 1998 budget, a copy of
which has been delivered to Warner-Lambert; or (viii) enter into or
amend (other than a non-material amendment) any contract, agreement,
commitment or arrangement with respect to any of the matters set
forth in this Section 4.1(e);
(f) Except to the extent required under this Agreement or under
any existing employee and director benefit plans, agreements or
arrangements as in effect on the date of this Agreement and
previously delivered to Warner-Lambert, increase the compensation or
fringe benefits of any of its directors, officers or employees,
except for increases in salary or wages of employees of Agouron or
its Subsidiaries in the ordinary course of business in accordance
with past practice and bonuses paid for fiscal year 1998 in
accordance with Section 5.6(a) hereof, or grant any severance or
termination pay not currently required to be paid under existing
severance plans or enter into, or amend, any employment, consulting
or severance agreement or arrangement with any present or former
director, officer or other employee of Agouron or any of its
<PAGE>
Subsidiaries, or establish, adopt, enter into or amend or terminate
any collective bargaining, bonus, profit sharing, thrift,
compensation, stock option, restricted stock, pension, retirement,
deferred compensation, employment, termination, welfare, severance or
other plan, agreement, trust, fund, policy or arrangement for the
benefit of any directors, officers or employees;
(g) Except as may be required as a result of a change in law or
in generally accepted accounting principles, change any of the
accounting practices or principles used by it;
(h) Take, or permit any of its Subsidiaries to take, any
action that (without regard to any action taken or agreed to be taken
by Warner-Lambert or any of its affiliates) would prevent (x) Warner-
Lambert from accounting for the business combination to be effected
by the Merger as a pooling of interests or (y) the Merger from
qualifying as a reorganization within the meaning of Section 368(a)
of the Code;
(i) Make any Tax election or settle or compromise any material
federal, state, local or foreign Tax liability, change any annual tax
accounting period, change any method of Tax accounting, enter into
any closing agreement relating to any Tax, surrender any right to
claim a Tax refund, or consent to any extension or waiver of the
limitations period applicable to any Tax claim or assessment;
(j) Settle or compromise any pending or threatened suit, action
or claim which is material or which relates to the transactions
contemplated hereby;
(k) Adopt a plan of complete or partial liquidation,
dissolution, merger, consolidation, restructuring, recapitalization
or other reorganization of Agouron or any of its Subsidiaries (other
than the Merger);
(l) Pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction, in the
ordinary course of business and consistent with past practice, of
liabilities reflected or reserved against in the financial statements
of Agouron or incurred in the ordinary course of business and
consistent with past practice;
(m) Effectuate a "plant closing" or "mass layoff", as those
terms are defined in WARN, affecting in whole or in part any site of
<PAGE>
employment, facility, operating unit or employee of Agouron or any of
its Subsidiaries;
(n) Fail to maintain in full force and effect the existing
insurance policies covering Agouron and its Subsidiaries and their
respective properties, assets and businesses or comparable
replacement policies to the extent available for a cost not exceeding
the current cost of such policy;
(o) Except as provided in Section 3.2(l), amend, modify or
waive any provision of the Rights Agreement, and shall not take any
action to redeem the Rights or render the Rights inapplicable to any
transaction (other than the Merger);
(p) Take, or offer or propose to take, or agree to take in
writing or otherwise, any of the actions described in Sections 4.1(a)
through 4.1(o) (other than an action described in Section 4.1(k) or
4.1(o), to the extent such action is permitted pursuant to Section
5.5) or any action which would make any of the representations or
warranties of Agouron contained in this Agreement untrue and
incorrect as of the date when made if such action had then been taken
or would result in any of the conditions set forth in Article VI not
being satisfied or materially delay the Closing.
Between the date of this Agreement and the Effective Time, Agouron
and its Subsidiaries shall:
(A) Notify and consult with Warner-Lambert immediately (i)
after receipt of any material communication from the FDA or, before
giving any material submission to the FDA (including any IND Safety
Reports, Fifteen-day Alert Reports or Field Alert Reports, as the
case may be) with respect to Viracept or any of the Investigational
Compounds or (ii) prior to making any material change to a study
protocol, the addition of new trials, or a material change to the
development timeline for any of the Investigational Compounds; and
(B) Notify and consult with Warner-Lambert prior to making any
material public announcement with respect to Viracept or any of the
Investigational Compounds.
4.2 Conduct of Business of Warner-Lambert Pending the Merger. (a)
During the period from the date of this Agreement to the Effective Time of
the Merger (except as otherwise contemplated by the terms of this Agreement),
Warner-Lambert shall use its reasonable best efforts to keep available the
services of their current officers and significant employees and preserve
<PAGE>
their relationships with customers, suppliers, licensors, licensees, or
distributors having business dealings with them to the end that their
goodwill and ongoing businesses shall be unimpaired at the Effective Time of
the Merger.
(b) Without limiting the generality of the foregoing, during the
period from the date of this Agreement to the Effective Time, Warner-Lambert
shall not, without the prior consent of Agouron:
(i) Amend Warner-Lambert's certificate of incorporation or by-
laws in a manner that would be materially adverse to the holders of
Warner-Lambert Common Stock;
(ii) Combine or reclassify or otherwise alter the Warner-Lambert
Common Stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for shares of
its capital stock; or
(iii) Take, or offer or propose to take, or agree to take in
writing or otherwise, any of the actions described in Sections
4.2(b)(i) through 4.2(b)(ii) or any action which would make any of
the representations or warranties of Warner-Lambert contained in this
Agreement untrue and incorrect as of the date when made if such
action had then been taken or (except as otherwise provided herein)
would result in any of the conditions set forth in Article VI not
being satisfied.
(c) Warner-Lambert shall not, and shall not permit any of its
Subsidiaries to, take any action that (without regard to any action taken or
agreed to be taken by Agouron or any of its affiliates) would (x) prevent
Warner-Lambert from accounting for the business combination to be effected by
the Merger as a pooling of interests, (y), it believes, prevent the Merger
from qualifying as a reorganization within the meaning of Section 368(a) of
the Code or (z) make any of the representations or warranties of Warner-
Lambert contained in this Agreement untrue and incorrect such that it would
have a Material Adverse Effect on Warner-Lambert or that would result in any
of the conditions set forth in Article VI not being satisfied or materially
delay the Closing.
4.3 Governmental Filings. Each of Warner-Lambert (to the extent
operational matters directly relate to this Agreement and the Merger) and
Agouron shall (a) confer on a regular and frequent basis with the other and
(b) report (to the extent permitted by law or regulation or any applicable
confidentiality agreement) on operational matters. Agouron and Warner-
Lambert shall file all reports required to be filed by each of them with the
<PAGE>
SEC (and all other Governmental Entities) between the date of this Agreement
and the Effective Time and each of Warner-Lambert (to the extent any report,
announcement and publication relates to this Agreement and the Merger or
materially impacts the Merger) and Agouron shall (to the extent permitted by
law or regulation or any applicable confidentiality agreement) deliver to the
other party copies of all such reports, announcements and publications
promptly after the same are filed.
4.4 Control of Other Party's Business. Nothing contained in this
Agreement shall give Agouron, directly or indirectly, the right to control or
direct Warner-Lambert's operations prior to the Effective Time. Nothing
contained in this Agreement shall give Warner-Lambert, directly or
indirectly, the right to control or direct Agouron's operations prior to the
Effective Time. Prior to the Effective Time, each of Agouron and Warner-
Lambert shall exercise, consistent with the terms and conditions of this
Agreement, complete control and supervision over its respective operations.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Preparation of Form S-4 and the Proxy Statement; Stockholders
Meeting. (a) Promptly following the date of this Agreement, Agouron and
Warner-Lambert shall prepare and Agouron shall file with the SEC the Proxy
Statement, and Warner-Lambert shall prepare and file with the SEC the Form S-
4, in which the Proxy Statement will be included as a prospectus. Each of
Agouron and Warner-Lambert shall use its reasonable best efforts to have the
Form S-4 declared effective under the Securities Act as promptly as
practicable after such filing. Agouron will use its reasonable best efforts
to cause the Proxy Statement to be mailed to its stockholders as promptly as
practicable after the Form S-4 is declared effective under the Securities
Act. Warner-Lambert shall also take any action (other than qualifying to do
business in any jurisdiction in which it is not now so qualified) required to
be taken under any applicable state securities law in connection with the
issuance of Warner-Lambert Common Stock in connection with the Merger, and
Agouron shall furnish all information concerning Agouron and the holders of
Agouron Common Stock and rights to acquire Agouron Common Stock pursuant to
the Agouron Stock Option Plans as may be reasonably required in connection
with any such action. Each of Warner-Lambert and Agouron shall furnish all
information concerning itself to the other as may be reasonably requested in
connection with any such action and the preparation, filing and distribution
of the Form S-4 and the preparation, filing and distribution of the Proxy
Statement. Agouron, Warner-Lambert and Merger Sub each agree to correct any
information provided by it for use in the Form S-4 or the Proxy Statement
which shall have become false or misleading.
<PAGE>
(b) Agouron, acting through its Board of Directors, shall, subject
to and in accordance with its Certificate of Incorporation and By-Laws,
promptly and duly call, give notice of, convene and hold as soon as
practicable following the date upon which the Form S-4 becomes effective a
meeting of the holders of Agouron Common Stock (the "Agouron Stockholders
Meeting") for the purpose of voting to approve and adopt this Agreement and
the transactions contemplated hereby, and (i) recommend approval and adoption
of this Agreement and the transactions contemplated hereby, by the
stockholders of Agouron and include in the Proxy Statement such
recommendation and (ii) take all reasonable and lawful action to solicit and
obtain such approval. The Board of Directors of Agouron shall not withdraw,
amend or modify in a manner adverse to Warner-Lambert its recommendation
referred to in clause (i) of the preceding sentence (or announce publicly its
intention to do so), except that such Board of Directors shall be permitted
to withdraw, amend or modify its recommendation (or publicly announce its
intention to do so) if such Board of Directors determines in good faith,
based upon written advice of outside counsel, that it is obligated by their
fiduciary duties in accordance with California law to do so. Without
limiting the generality of the foregoing, (i) Agouron agrees that its
obligation to duly call, give notice of, convene and hold a meeting of the
holders of Agouron Common Stock, as required by this Section 5.1, shall not
be affected by the withdrawal, amendment or modification of the Board of
Directors' recommendation of approval and adoption of this Agreement and the
transactions contemplated hereby and (ii) subject to Agouron's rights
pursuant to Sections 5.5 and 7.1(h), Agouron agrees that its obligations
under this Section 5.1(b) shall not be affected by the commencement, public
proposal, public disclosure or communication to Agouron of any Acquisition
Proposal (as defined in Section 5.5).
(c) Agouron will cause its transfer agent to make stock transfer
records relating to Agouron available to the extent reasonably necessary to
effectuate the intent of this Agreement.
5.2. Accountant's Letters. (a) Warner-Lambert shall use reasonable
best efforts to cause to be delivered to Agouron a letter from Warner-
Lambert's independent public accountants, dated the date on which the Form S-
4 shall become effective, addressed to Warner-Lambert, in form and substance
reasonably satisfactory to Agouron and customary in scope and substance for
comfort letters delivered by independent public accountants in connection
with registration statements similar to the Form S-4. Warner-Lambert shall
use reasonable best efforts to cause to be delivered to Agouron a letter from
Warner-Lambert's independent accountants dated as of the Closing Date,
stating that accounting for the Merger as a pooling of interests under
Opinion 16 of the Accounting Principles Board, applicable SEC rules and
<PAGE>
regulations and other authoritative literature is appropriate if the Merger
is closed and consummated as contemplated by this Agreement.
(b) Agouron shall use reasonable best efforts to cause to be
delivered to Warner-Lambert a letter from Agouron's independent public
accountants, dated the date on which the Form S-4 shall become effective,
addressed to Agouron and Warner-Lambert, in form and substance reasonably
satisfactory to Warner-Lambert and customary in scope and substance for
comfort letters delivered by independent public accountants in connection
with registration statements similar to the Form S-4. Agouron shall use
reasonable best efforts to cause to be delivered to Warner-Lambert a letter
from Agouron's independent public accountants, addressed to Agouron and
Warner-Lambert, dated as of the Closing Date, stating that accounting for the
Merger as a pooling of interests under Opinion 16 of the Accounting
Principles Board, applicable SEC rules and regulations and other
authoritative literature is appropriate if the Merger is closed and
consummated as contemplated by this Agreement.
(c) Each of Warner-Lambert and Agouron shall use reasonable best
efforts to cause (i) the transactions contemplated by this Agreement,
including the Merger, to be accounted for as a pooling of interests under
Opinion 16 of the Accounting Principles Board, applicable SEC rules and
regulations and other authoritative literature, and (ii) such accounting
treatment to be accepted by the SEC.
5.3 Access to Information. Upon reasonable notice, each party shall
(and shall cause its Subsidiaries to) afford to the officers, employees,
accountants, counsel, financial advisors and other representatives of the
other party reasonable access during normal business hours, during the period
prior to the Effective Time, to such of its properties, books, contracts,
commitments, records, officers and employees as the other party may
reasonably request and, during such period, such party shall (and shall cause
its Subsidiaries to) furnish promptly to the other party (a) a copy of each
report, schedule, registration statement and other document filed, published,
announced or received by it during such period pursuant to the requirements
of Federal or state securities laws, as applicable (other than documents
which such party is not permitted to disclose under applicable law), and (b)
consistent with its legal obligations, all other information concerning it
and its business, properties and personnel as such other party may reasonably
request; provided, however, that either party may restrict the foregoing
access to the extent that any law, treaty, rule or regulation of any
Governmental Entity applicable to such party requires such party or its
Subsidiaries to restrict access to any properties or information. The
parties will hold any such information which is non-public in confidence to
the extent required by, and in accordance with, the provisions of the
<PAGE>
confidential disclosure agreements dated December 15, 1998 and December 23,
1998 between Agouron and Warner-Lambert (the "Confidentiality Agreements").
Any investigation by Warner-Lambert or Agouron shall not affect the
representations and warranties of Agouron or Warner-Lambert, as the case may
be.
5.4 Reasonable Best Efforts.
(a) Subject to the terms and conditions of this Agreement, each
party will use its reasonable best 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 the Merger and
the other transactions contemplated by this Agreement as soon as practicable
after the date hereof, including (i) preparing and filing as promptly as
practicable all documentation to effect all necessary applications, notices,
petitions, filings, tax ruling requests and other documents and to obtain as
promptly as practicable all consents, waivers, licenses, orders,
registrations, approvals, permits, tax rulings and authorizations necessary
or advisable to be obtained from any third party and/or any Governmental
Entity in order to consummate the Merger or any of the other transactions
contemplated by this Agreement and (ii) taking all reasonable steps as may be
necessary to obtain all such material consents, waivers, licenses,
registrations, permits, authorizations, tax rulings, orders and approvals.
In furtherance and not in limitation of the foregoing, each party hereto
agrees to make an appropriate filing of a Notification and Report Form
pursuant to the HSR Act and any other Regulatory Law (as defined below) with
respect to the transactions contemplated hereby as promptly as practicable
after the date hereof and to supply as promptly as practicable any additional
information and documentary material that may be requested pursuant to the
HSR Act and any other Regulatory Law and to take all other actions necessary
to cause the expiration or termination of the applicable waiting periods
under the HSR Act as soon as practicable. Nothing in this Section 5.4(a)
shall require any of Warner-Lambert and its Subsidiaries or Agouron and its
Subsidiaries to sell, hold separate or otherwise dispose of or conduct their
business in a specified manner, or agree to sell, hold separate or otherwise
dispose of or conduct their business in a specified manner, or permit the
sale, holding separate or other disposition of, any assets of Warner-Lambert,
Agouron or their respective Subsidiaries or the conduct of their business in
a specified manner, whether as a condition to obtaining any approval from a
Governmental Entity or any other Person or for any other reason, if such
sale, holding separate or other disposition or the conduct of their business
in a specified manner would reasonably be expected to have a Material
Adverse Effect on Warner-Lambert and its Subsidiaries (including the
Surviving Corporation and its Subsidiaries), taken together, after giving
effect to the Merger.
<PAGE>
(b) Each of Warner-Lambert and Agouron shall, in connection with the
efforts referenced in Section 5.4(a) to obtain all requisite material
approvals and authorizations for the transactions contemplated by this
Agreement under the HSR Act or any other Regulatory Law, use its reasonable
best efforts to (i) cooperate in all respects with each other in connection
with any filing or submission and in connection with any investigation or
other inquiry, including any proceeding initiated by a private party, (ii)
promptly inform the other party of any communication received by such party
from, or given by such party to, the Antitrust Division of the Department of
Justice (the "DOJ") or any other Governmental Entity and of any material
communication received or given in connection with any proceeding by a
private party, in each case regarding any of the transactions contemplated
hereby, and (iii) permit the other party to review any communication given by
it to, and consult with each other in advance of any meeting or conference
with, the DOJ or any such other Governmental Entity or, in connection with
any proceeding by a private party, with any other Person, and to the extent
permitted by the DOJ or such other applicable Governmental Entity or other
Person, give the other party the opportunity to attend and participate in
such meetings and conferences. For purposes of this Agreement, "Regulatory
Law" means the Sherman Act, as amended, the Clayton Act, as amended, the HSR
Act, the Federal Trade Commission Act, as amended, and all other federal,
state and foreign, if any, statutes, rules, regulations, orders, decrees,
administrative and judicial doctrines and other laws that are designed or
intended to prohibit, restrict or regulate actions having the purpose or
effect of monopolization or restraint of trade or lessening of competition.
(c) Subject to the terms and conditions of this Agreement, in
furtherance and not in limitation of the covenants of the parties contained
in Sections 5.4(a) and 5.4(b), if any administrative or judicial action or
proceeding, including any proceeding by a private party, is instituted (or
threatened to be instituted) challenging any transaction contemplated by this
Agreement as violative of any Regulatory Law, each of Warner-Lambert and
Agouron shall cooperate in all respects with each other and use its
respective reasonable best efforts to contest and resist any such action or
proceeding and to have vacated, lifted, reversed or overturned any decree,
judgment, injunction or other order, whether temporary, preliminary or
permanent, that is in effect and that prohibits, prevents or restricts
consummation of the transactions contemplated by this Agreement.
Notwithstanding the foregoing or any other provision of this Agreement,
nothing in this Section 5.4 shall limit a party's right to terminate this
Agreement pursuant to Article VII.
(d) If any objections are asserted with respect to the transactions
contemplated hereby under any Regulatory Law or if any suit is instituted by
any Governmental Entity or any private party challenging any of the
<PAGE>
transactions contemplated hereby as violative of any Regulatory Law, each of
Warner-Lambert and Agouron shall use its reasonable best efforts to resolve
any such objections or challenge as such Governmental Entity or private party
may have to such transactions under such Regulatory Law so as to permit
consummation of the transactions contemplated by this Agreement.
(e) From and after the Effective Time, Warner-Lambert will not take
or cause or permit the Surviving Corporation to take, any action that it
believes would cause the Merger not to qualify as a tax free reorganization
under Section 368(a) of the Code.
5.5 No Solicitation of Transactions. Agouron agrees that neither it
nor any of its Subsidiaries nor any of the officers and directors of it or
its Subsidiaries shall, and that it shall direct and cause its and its
Subsidiaries' employees, agents and representatives (including any investment
banker, attorney or accountant retained by it or any of its Subsidiaries) not
to, directly or indirectly, initiate or solicit or take any action designed
to encourage or facilitate (including by way of furnishing information) any
inquiries or the making of any proposal or offer with respect to (i) a
merger, reorganization, share exchange, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving
it or any of its Subsidiaries, or (ii) any purchase or sale of all or any
significant portion of the assets or 10% or more of the equity securities of
it or any of its Subsidiaries (any such proposal or offer being hereinafter
referred to as an "Acquisition Proposal"). Agouron further agrees that
neither it nor any of its Subsidiaries nor any of the officers and directors
of it or its Subsidiaries shall, and that it shall direct and cause its and
its Subsidiaries' employees, agents and representatives (including any
investment banker, attorney or accountant retained by it or any of its
Subsidiaries) not to, directly or indirectly, have any discussion with or
provide any confidential information or data to any person relating to an
Acquisition Proposal, or engage in any negotiations concerning an Acquisition
Proposal. Notwithstanding the foregoing, Agouron or its Board of Directors
shall be permitted to (A) to the extent applicable, comply with Rule 14e-2(a)
promulgated under the Exchange Act with regard to an Acquisition Proposal, or
(B) engage in any discussions or negotiations with, or provide any
information to, any person in response to an unsolicited bona fide written
Acquisition Proposal by any such person, if and only to the extent that, in
the case of the actions referred to in clause (B), (i) the Board of Directors
of Agouron concludes in good faith, based on the written advice of its
outside legal counsel, that the provision of such information or the engaging
in such negotiations or discussions is obligated by the directors' fiduciary
duties in accordance with California law, (ii) prior to providing any
information or data to any Person in connection with an Acquisition Proposal
by any such Person, the Board of Directors of Agouron receives from such
<PAGE>
person an executed confidentiality agreement containing customary terms and
provisions and (iii) prior to providing any information or data to any Person
or entering into discussions or negotiations with any Person, the Board of
Directors of Agouron notifies Warner-Lambert promptly of such inquiries,
proposals or offers received by, any such information requested from, or any
such discussions or negotiations sought to be initiated or continued with,
any of its representatives indicating, in connection with such notice, the
name of such Person and the material terms and conditions of any proposals or
offers. Agouron agrees that it will keep Warner-Lambert informed, on a
prompt basis, of the status and terms of any such proposals or offers and the
status of any such discussions or negotiations. Agouron agrees that it will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with
respect to any Acquisition Proposal or similar transaction or arrangement and
will not waive any rights under any confidentiality agreements entered into
with such parties. Agouron agrees that it will take the necessary steps to
promptly inform the individuals or entities referred to in the first sentence
of this Section 5.5 of the obligations undertaken in this Section 5.5.
5.6 Employee Benefits Matters.
(a) Continuation and Comparability of Benefits. From the Effective
Time until December 31, 2000, the Surviving Corporation shall provide
compensation and employee benefits under the Plans (as defined in Section
3.2(r)) to the employees of Agouron and its Subsidiaries employed as of the
Effective Time (except the employees entering into employment agreements and
listed on Exhibit 5.6(a)) (the "Agouron Employees") that are in the aggregate
no less favorable than those provided to such persons pursuant to the Plans
in effect on the date hereof; provided, however, that (i) the Agouron Stock
Purchase Plan shall be terminated as soon as practicable after the Effective
Time and shall not be considered in determining aggregate favorability under
this clause (a), (ii) the Surviving Corporation shall cause the Agouron
401(k) plan to be amended, effective as of the Effective Time (unless
prohibited as a tax-qualification matter) to provide for an additional
matching company contribution on behalf of eligible participants determined
as follows:
<PAGE>
ADDITIONAL MATCHING ANNUAL REPORTED EARNINGS PER SHARE
COMPANY CONTRIBUTIONS (made with GROWTH (determined in the same manner
respect to each eligible as provided under the Warner-Lambert
participant's elective salary Savings & Stock Plan)
deferral)
10% 12.0% or greater, but less than 16.0%
25% 16.0% or greater, but less than 20.0%
35% 20.0% or greater
(iii) the Agouron Employees shall be eligible to enroll in the Warner-
Lambert Retirement Plan as of January 1, 2000, and (iv) the vacation
entitlement of the Agouron Employees accrued as of the Effective Time shall
not be reduced and will apply after the Effective Time with respect to these
Agouron Employees. Nothing herein shall prohibit any changes to the Plans
that may be (i) required by law (including, without limitation, any
applicable qualification requirements of Section 401(a) of the Code), (ii)
necessary as a technical matter to reflect the transactions contemplated
hereby or (iii) required for Agouron to provide or permit investment in its
securities. Furthermore, nothing herein shall require Surviving Corporation
to continue any particular Plan or prevent the amendment or termination
thereof (subject to the maintenance, in the aggregate, of the benefits as
provided in the preceding sentence). Notwithstanding the foregoing, not
later than January 1, 2001, Agouron Employees shall be transitioned to the
compensation-related programs (including salary structure, grades, bonus
policies and programs, salary administration practices, stock option and
other stock-related programs) of Warner-Lambert as determined by Warner-
Lambert, provided, however, that the base salary of any such employee will
not be reduced for a period of two years. Warner-Lambert will provide non-
qualified Warner-Lambert stock option grants to the management-level
employees of Agouron on or about June 30, 1999, in accordance with Warner-
Lambert's grant guidelines and effective as of January 1, 2000, such
management employees of Agouron will be eligible for stock options on a pro-
rata basis, in accordance with Warner-Lambert's grant guidelines. For the
fiscal year ending June 30, 1999, the Surviving Corporation will administer
Agouron's bonus program in accordance with the past practice of Agouron,
subject to approval by Warner-Lambert management. For the period beginning
on July 1, 1999 and ending December 31, 1999, management employees of Agouron
shall be eligible for a bonus on a pro-rata basis reflecting the performance
of Warner-Lambert and such employee, subject to the approval of Warner-
Lambert's management.
<PAGE>
(b) Pre-Existing Limitations; Service Credit. With respect to any
Benefit Plans in which any Agouron Employees first become eligible to
participate, on or after the Effective Time, and which are plans that the
Agouron Employees did not participate in prior to the Effective Time (the
"New Agouron Plans"), Warner-Lambert shall: (A) waive all pre-existing
conditions, exclusions and waiting periods with respect to participation and
coverage requirements applicable to the Agouron Employees under any New
Agouron Plans in which such employees may be eligible to participate after
the Effective Time; provided that such Agouron Employee and covered family
members were enrolled in comparable coverage under the Benefit Plans of
Agouron on the Effective Time and continuously thereafter until the effective
time of coverage in the New Agouron Plans, and to the extent such waiver is
permissible under the insurance contracts of Warner-Lambert, and (B)
recognize service of the Agouron Employees with Agouron accrued prior to the
Effective Time for purposes of eligibility to participate and vesting credit
in any New Agouron Plan in which such employees may be eligible to
participate after the Effective Time, to the extent such service is taken
into account under the applicable New Agouron Plan.
(c) Redundancies. Agouron Employees whose jobs are eliminated as a
result of the consummation of the transaction contemplated under this
Agreement shall receive severance payments in an amount due under the
severance policy of Warner-Lambert plus a completion bonus if such employee
performs in good faith in the job during a transition period determined by
the Chief Executive Officer of Agouron and approved by Warner-Lambert. The
amount of the completion bonus shall be based upon base salary and shall be
determined as follows:
Years of service with
Agouron and Warner-Lambert 0-4 years More than 4 years
Below manager 3 months 4 months
Manager 4 months 6 months
Director 9 months 12 months
5.7 Directors' and Officers' Indemnification and Insurance. The
Surviving Corporation shall, and Warner-Lambert shall cause the Surviving
Corporation to, (i) indemnify and hold harmless, and provide advancement of
expenses to, all past and present directors, officers and employees of
Agouron and its Subsidiaries to the same extent such persons are indemnified
or have the right to advancement of expenses as of the date of this Agreement
by Agouron pursuant to Agouron's certificate of incorporation, by-laws and
indemnification agreements, if any, in existence on the date hereof with any
<PAGE>
directors, officers and employees of Agouron and its Subsidiaries for acts or
omissions occurring at or prior to the Effective Time (including for acts or
omissions occurring in connection with the approval of this Agreement and the
consummation of the transactions contemplated hereby), and (ii) cause to be
maintained for a period of six years after the Effective Time the current
policies of directors' and officers' liability insurance and fiduciary
liability insurance maintained by Agouron (provided that the Surviving
Corporation (or any successor) may substitute therefor policies of at least
the same coverage and amounts containing terms and conditions which are, in
the aggregate, no less advantageous to the insured) with respect to claims
arising from facts or events that occurred on or before the Effective Time;
provided, however, that in no event shall the Surviving Corporation be
required to expend in any one year an amount in excess of 200% of the annual
premiums currently paid by Agouron for such insurance; and, provided,
further, that if the annual premiums of such insurance coverage exceed such
amount, the Surviving Corporation shall be obligated to obtain a policy with
the greatest coverage available for a cost not exceeding such amount.
5.8 Notification of Certain Matters. Agouron shall give prompt
notice to Warner-Lambert, and Warner-Lambert shall give prompt notice to
Agouron, of (i) the occurrence or non-occurrence of any event the occurrence
or non-occurrence of which would be likely to cause any representation or
warranty contained in this Agreement to be untrue or inaccurate and (ii) any
failure of Agouron, Warner-Lambert or Merger Sub, as the case may be, to
comply with or satisfy any covenant, condition or agreement to be complied
with or satisfied by it hereunder; provided, however, that the delivery of
any notice pursuant to this Section 5.8 shall not limit or otherwise affect
the remedies available hereunder to the party receiving such notice.
5.9 Public Announcements. Warner-Lambert and Agouron shall develop
a joint communications plan and each party shall (i) ensure that all press
releases and other public statements with respect to this Agreement, the
Stock Option Agreement or the transactions contemplated hereby shall be
consistent with such joint communications plan, and (ii) unless otherwise
required by applicable law or by obligations pursuant to any listing
agreement with or rules of any securities exchange, consult with each other
before issuing any press release or otherwise making any public statement
with respect to this Agreement, the Stock Option Agreement or the
transactions contemplated hereby. In addition to the foregoing, except to
the extent disclosed in or consistent with the Proxy Statement in accordance
with the provisions of Section 5.1, neither Warner-Lambert nor Agouron shall
issue any press release or otherwise make any public statement or disclosure
concerning the other party or the other party's business, financial condition
or results of operations without the consent of the other party, which
consent shall not be unreasonably withheld or delayed.
<PAGE>
5.10 Listing of Shares of Warner-Lambert Common Stock. Warner-
Lambert shall use its reasonable best efforts to cause the shares of Warner-
Lambert Common Stock to be issued in the Merger to be approved for listing on
the NYSE, subject to official notice of issuance, prior to the Closing Date.
5.11 Affiliates. (a) Promptly after execution and delivery of this
Agreement, Agouron shall deliver to Warner-Lambert a letter identifying all
persons who, in the opinion of Agouron, may be deemed at the time this
Agreement is submitted for adoption by the stockholders of Agouron,
"affiliates" of Agouron for purposes of Rule 145 under the Securities Act or
for purposes of qualifying the Merger for pooling of interests accounting
treatment under Opinion 16 of the Accounting Principles Board and applicable
SEC rules and regulations, and such list shall be updated as necessary to
reflect changes from the date thereof. Agouron shall use reasonable best
efforts to cause each person identified on such list to deliver to Warner-
Lambert not less than 30 days prior to the Effective Time, a written
agreement substantially in the form attached as Exhibit 5.11 hereto (an
"Affiliate Agreement"). Promptly after execution and delivery of this
Agreement, Warner-Lambert shall deliver to Agouron a letter identifying all
persons who, in the opinion of Warner-Lambert, may be deemed "affiliates" of
Warner-Lambert for purposes of qualifying the Merger for pooling of interests
accounting treatment under Opinion 16 of the Accounting Principles Board and
applicable SEC rules and regulations, and such list shall be updated as
necessary to reflect changes from the date hereof. Warner-Lambert shall use
reasonable best efforts to cause each person identified on such list to
deliver to Agouron not less than 30 days prior to the Effective Time, a
written agreement including the substance of paragraphs (C), (D) and (E) of
Exhibit 5.11 hereto.
(b) Warner-Lambert shall use its reasonable best efforts to publish
no later than 60 days after the end of the first month after the Effective
Time in which there are at least 30 days of post-Merger combined operations
(which month may be the month in which the Effective Time occurs), combined
sales and net income figures as contemplated by and in accordance with the
terms of SEC Accounting Series Release No. 135.
5.12 Amendment to the Rights Agreement. Except as expressly
contemplated by Section 3.2(1) of this Agreement, Agouron agrees that it will
not amend, modify or waive any provision of the Rights Agreement and shall
not take any action to redeem the Rights or render the Rights inapplicable to
any transaction, other than to permit another transaction that the Board of
Directors of Agouron has determined to accept pursuant to Section 5.5.
5.13 Divisional Stock Proposal. Agouron agrees not to implement the
proposal (the "Divisional Stock Proposal"), which such proposal would (i)
<PAGE>
increase the number of shares of authorized common stock to 150,000,000
shares, (ii) create two series of common stock to reflect separately the
performances of Agouron's Oncology Division and its other businesses and
(iii) authorize the issuance of one or more additional series of common stock
from undesignated shares of common stock.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of Agouron, Warner-Lambert and Merger Sub to effect
the Merger are subject to the satisfaction or waiver on or prior to the
Closing Date of the following conditions:
(a) Stockholder Approval. Agouron shall have obtained the Required
Agouron Vote in connection with the adoption of this Agreement by the
stockholders of Agouron.
(b) No Injunctions or Restraints, Illegality. (i) No Governmental
Entity or federal or state court of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, executive order, decree, judgment, injunction or other order
(whether temporary, preliminary or permanent), in any case which is in effect
and which prevents or prohibits consummation of the Merger or any other
transactions contemplated in this Agreement; and (ii) no Governmental Entity
shall have instituted any action or proceeding (which remains pending at what
would otherwise be the Closing Date) before any United States court or other
governmental body of competent jurisdiction seeking to enjoin, restrain or
otherwise prohibit consummation of the transactions contemplated by this
Agreement.
(c) HSR Act. The waiting period (and any extension thereof)
applicable to the Merger under the HSR Act shall have been terminated or
shall have expired.
(d) NYSE Listing. The shares of Warner-Lambert Common Stock to be
issued in the Merger and such other shares to be reserved for issuance in
connection with the Merger shall have been approved for listing on the NYSE,
subject to official notice of issuance.
(e) Effectiveness of the Form S-4. The Form S-4 shall have been
declared effective by the SEC under the Securities Act. No stop order
suspending the effectiveness of the Form S-4 shall have been issued by the
<PAGE>
SEC and no proceedings for that purpose shall have been initiated or
threatened by the SEC.
(f) Pooling. Agouron shall have received and delivered to Warner-
Lambert and Warner-Lambert's independent public accountants, a letter from
its independent public accountants, dated as of the Closing Date, stating
that Agouron qualifies as a "combining company" in accordance with the
criteria set forth in Opinion 16 of the Accounting Principles Board,
applicable SEC rules and regulations and other authoritative literature and
accordingly is a poolable entity. Warner-Lambert shall have received and
delivered to Agouron, a letter from its independent public accountants, dated
as of the Closing Date, stating that accounting for the Merger as a pooling
of interests under Opinion 16 of the Accounting Principles Board, applicable
SEC rules and regulations and other authoritative literature is appropriate
if the Merger is closed and consummated as contemplated by this Agreement.
Notwithstanding the foregoing, the satisfaction of this Section 6.1(f) shall
not be a condition to the obligations of a party to effect the Merger if the
failure to satisfy this condition results from any action taken or agreed to
be taken by or on behalf of such party.
6.2 Additional Conditions to Obligations of Warner-Lambert and
Merger Sub. The obligations of Warner-Lambert and Merger Sub to effect the
Merger are subject to the satisfaction of, or waiver by Warner-Lambert, on or
prior to the Closing Date of the following conditions:
(a) Representations and Warranties. (i) Each of the
representations and warranties of Agouron set forth in this Agreement (read
without any materiality, Material or Material Adverse Effect qualifications)
shall be true and correct as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date (except to the
extent in either case that such representations and warranties speak as of
another date), except to the extent inaccuracies and breaches therein,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Agouron. Warner-Lambert shall have received a
certificate of the chief executive officer and the chief financial officer of
Agouron to such effect.
(ii) There has been no intentional breach of the representations and
warranties of Agouron.
(b) Performance of Obligations of Agouron. (i) Agouron shall have
performed or complied with all agreements and covenants required to be
performed by it under this Agreement at or prior to the Closing Date, except
where the failure to so perform or comply would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect on Agouron,
<PAGE>
and Warner-Lambert shall have received a certificate of the chief executive
officer and the chief financial officer of Agouron to such effect.
(ii) Agouron shall not have intentionally breached any agreement or
covenant required to be performed by Agouron under this Agreement.
(c) Tax Opinion. Warner-Lambert shall have received from McDermott,
Will & Emery, special tax counsel to Warner-Lambert, on or before the date
the Form S-4 shall become effective and, subsequently, on the Closing Date, a
written opinion dated as of such dates, based on appropriate representations
of Agouron and Warner-Lambert, to the effect that (i) the Merger will be
treated for federal income tax purposes as a reorganization within the
meaning of Section 368(a) of the Code and (ii) Agouron, Warner-Lambert and
Merger Sub will each be a party to the reorganization within the meaning of
Section 368(b) of the Code.
(d) No Material Adverse Change. At any time on or after the date of
this Agreement there shall not have occurred any change, circumstance or
event that, individually or in the aggregate, has had or would reasonably be
expected to have a Material Adverse Effect on Agouron.
(e) Rights Agreement. No Share Acquisition Date or Distribution
Date shall have occurred pursuant to the Rights Agreement.
(f) Dissenting Agouron Shares. The aggregate number of shares of
Agouron Common Stock owned by Persons who have made a demand for purchase
under Section 1301 of the CGCL shall constitute less than 5% of all shares of
Agouron Common Stock outstanding as of the date of the meeting of the Agouron
Shareholders called for the purpose of voting on the Merger.
6.3 Additional Conditions to Obligations of Agouron. The
obligations of Agouron to effect the Merger are subject to the satisfaction
of, or waiver by Agouron, on or prior to the Closing Date of the following
additional conditions:
(a) Representations and Warranties. (i) Each of the
representations and warranties of Warner-Lambert set forth in this Agreement
(read without any materiality or Material Adverse Effect qualifications)
shall be true and correct as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date (except to the
extent in either case that such representations and warranties speak as of
another date), except to the extent inaccuracies and breaches therein,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Warner-Lambert. Agouron shall have received a
<PAGE>
certificate of the chief executive officer and the chief financial officer of
Warner-Lambert to such effect.
(ii) There has been no intentional breach of the representations and
warranties of Warner-Lambert.
(b) Performance of Obligations of Warner-Lambert. (i) Warner-
Lambert shall have performed or complied with all agreements and covenants
required to be performed by it under this Agreement at or prior to the
Closing Date, except where the failure to so perform or comply would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Warner-Lambert. Agouron shall have received a certificate
of the chief executive officer and the chief financial officer of Warner-
Lambert to such effect.
(ii) Warner-Lambert shall not have intentionally breached any
agreement or covenant required to be performed by Warner-Lambert under this
Agreement.
(c) Tax Opinion. Agouron shall have received from Shearman &
Sterling counsel to Agouron, on or before the date the Form S-4 shall become
effective and, subsequently, on the Closing Date, a written opinion dated as
of such dates, based on appropriate representations of Agouron and Warner-
Lambert, to the effect that (i) the Merger will be treated for federal income
tax purposes as a reorganization within the meaning of Section 368(a) of the
Code; and (ii) Agouron, Warner-Lambert and Merger Sub will each be a party to
the reorganization within the meaning of Section 368(b) of the Code.
(d) No Material Adverse Change. At any time on or after the date of
this Agreement, except for any FDA action which may arise out of the Advisory
Committee meeting related to Rezulin that is currently scheduled for March
26, 1999, there shall not have occurred any change, circumstance or event
that, individually or in the aggregate, has had or would reasonably be
expected to have a Material Adverse Effect on Warner-Lambert.
ARTICLE VII
TERMINATION AND AMENDMENT
7.1 Termination. This Agreement may be terminated and the Merger
contemplated hereby may be abandoned at any time prior to the Closing Date,
whether before or after approval of matters presented in connection with the
Merger by the stockholders of Agouron (except as otherwise stated herein):
(a) By mutual written consent of Warner-Lambert and Agouron;
<PAGE>
(b) By either Warner-Lambert or Agouron, if the Merger shall not
have been consummated on or before October 31, 1999 (other than due to the
failure of the party seeking to terminate this Agreement to perform its
obligations under this Agreement required to be performed at or prior to the
Effective Time);
(c) By Warner-Lambert or Agouron, if any required approval of the
stockholders of Agouron for this Agreement or the Merger shall not have been
obtained by reason of the failure to obtain the required vote upon a vote
held at a duly held meeting of stockholders or at any adjournment thereof;
(d) By Warner-Lambert or Agouron if any court or other governmental
body of competent jurisdiction shall have issued a final order, decree or
ruling or taken any other final action restraining, enjoining or otherwise
prohibiting the Merger and such order, decree, ruling or other action is or
shall have become final and nonappealable;
(e) By Agouron if prior to the Closing Date there shall have been a
breach of any representation, warranty, covenant or agreement on the part of
Warner-Lambert contained in this Agreement, which breach would (i) give rise
to the failure of a condition set forth in Section 6.3(a) or (b) and (ii) is
incapable of being cured by Warner-Lambert or is not cured within 30 days of
notice of such breach;
(f) By Warner-Lambert if prior to the Closing Date there shall have
been a breach of any representation, warranty, covenant or agreement on the
part of Agouron contained in this Agreement, which breach would (i) give rise
to the failure of a condition set forth in Section 6.2(a) or (b) and (ii) is
incapable of being cured by Agouron or is not cured within 30 days of notice
of such breach; or the condition set forth in Section 6.2(d) has not or
cannot be satisfied;
(g) By Warner-Lambert (i) if the Board of Directors of Agouron shall
have (a) failed to recommend or withdrawn, modified or amended in any respect
adverse to Warner-Lambert or Merger Sub its approval or recommendation of
this Agreement, the Merger or any of the other transactions contemplated
herein or resolved to do so, or (b) approved or recommended an Acquisition
Proposal from a Person (other than Warner-Lambert) or resolved to do so, or
(ii) Agouron materially breaches any of its agreements set forth in Section
5.5;
(h) By Agouron, if as a result of an Acquisition Proposal the Board
of Directors, shall have determined in good faith, based upon its receipt of
the written advice of outside legal counsel, that the directors are obligated
<PAGE>
by their fiduciary duties in accordance with California law to terminate this
Agreement and to approve the Acquisition Proposal; provided, however, that it
shall be a condition precedent to the termination of this Agreement by
Agouron pursuant to this Section 7.1(h) that Agouron shall have made the
payment of the fee and expenses required by Section 7.3; or
(i) By Warner-Lambert, if any person or group (as defined in Section
13(d)(3)of the Exchange Act) (other than Warner-Lambert, Merger Sub or any of
their affiliates) shall have become (x) the beneficial owner (as defined in
Rule 13d-3 promulgated under the Exchange Act) of at least 20% of the
outstanding shares of Agouron Common Stock or (y) shall have acquired 20% or
more of the assets of Agouron and its Subsidiaries, taken as a whole.
7.2 Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 7.1, this Agreement shall forthwith become void
and there shall be no liability on the part of any party hereto except as set
forth in the confidentiality provisions of Section 5.3 and Sections 5.9, 7.3
and 8.1; provided, however, that nothing herein shall relieve any party from
liability for any willful breach hereof.
7.3 Fees and Expenses.
(a) If:
(i) This Agreement is terminated pursuant to Sections
7.1(g),(h) or (i); or
(ii) (x)(A) Warner-Lambert or Agouron terminate this Agreement
pursuant to Section 7.1(c) if an Alternative Transaction or the
intention to propose an Alternative Transaction shall have been
publicly announced and not withdrawn prior to the Agouron
Stockholders Meeting, or (B) Warner-Lambert terminates this Agreement
pursuant to Section 7.1(f) if the Board of Directors of Agouron were
aware of the existence of an Alternative Transaction or the intention
to propose an Alternative Transaction and such Alternative
Transaction had not been withdrawn prior to such breach and (y) in
the case of (A) or (B), within 12 months thereafter, Agouron enters
into an agreement with respect to an Alternative Transaction or an
Alternative Transaction is consummated;
then Agouron shall pay to Warner-Lambert and Merger Sub, (A) simultaneously
with any termination by Agouron contemplated by Section 7.3(a)(i), (B) within
one business day following any termination by Warner-Lambert contemplated by
Section 7.3(a)(i), and (C) within one business day following the occurrence
of one of the events described in clause (y) of Section 7.3(a)(ii), a fee, in
<PAGE>
cash, of $60 million provided, however, that Agouron shall in no event be
obligated to pay more than one such fee with respect to all such occurrences
and such termination.
(b) Within one business day after the termination of this Agreement
pursuant to (i) Section 7.1(c) if an Alternative Transaction or the intention
to propose an Alternative Transaction shall have been publicly announced and
not withdrawn prior to the Agouron Stockholders Meeting, (ii) Section 7.1(f)
if the Board of Directors of Agouron were aware of the existence of an
Alternative Transaction or the intention to propose an Alternative
Transaction and such Alternative Transaction had not been withdrawn prior to
such breach or (iii) Sections 7.1(g),(h) or (i), Agouron shall pay all of
Warner-Lambert's and Merger Sub's Expenses (as defined below) up to a maximum
of $10 million in the aggregate.
For purposes of this Section 7.3, "Alternative Transaction" means any
of the following events: (i) the acquisition of Agouron by merger,
reorganization, share exchange, consolidation, business combination,
recapitalization, dissolution or otherwise by any person other than Warner-
Lambert, Merger Sub or any affiliate thereof (a "Third Party"); (ii) the
acquisition by a Third Party of 20% or more of the assets of Agouron and its
Subsidiaries, taken as a whole; (iii) the acquisition by a Third Party of 20%
or more of the outstanding shares of Agouron Common Stock; (iv) the adoption
by Agouron of a plan of liquidation or the declaration or payment of an
extraordinary dividend other than the Divisional Stock Proposal; or (v) the
repurchase by Agouron or any of its Subsidiaries of 20% or more of the
outstanding shares of Agouron Common Stock.
(c) Except as otherwise specifically provided herein, each party
shall bear its own Expenses in connection with this Agreement, the Stock
Option Agreement and the transactions contemplated hereby, except that each
of Warner-Lambert and Agouron shall bear and pay one-half of the costs and
expenses incurred in connection with the filing, printing and mailing of the
Form S-4 and the Proxy Statement. As used in this Agreement, "Expenses"
includes all out-of-pocket expenses (including, without limitation, all fees
and expenses of counsel, accountants, investment bankers, experts and
consultants to a party hereto and its affiliates) incurred by a party or on
its behalf in connection with or related to the authorization, preparation,
negotiation, execution and performance of this Agreement and the transactions
contemplated hereby, including the preparation, printing, filing and mailing
of the Proxy Statement and the solicitation of stockholder approvals and all
other matters related to the transactions contemplated hereby.
7.4 Amendment. This Agreement may be amended by the parties hereto,
by action taken or authorized by their respective Boards of Directors, at any
<PAGE>
time before or after approval of the matters presented in connection with the
Merger by the stockholders of Agouron, but, after any such approval, no
amendment shall be made which by law or in accordance with the rules of any
relevant stock exchange requires further approval by such stockholders
without such further approval. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto.
7.5 Extension; Waiver. At any time prior to the Effective Time, the
parties hereto, by action taken or authorized by their respective Boards of
Directors, may, to the extent legally allowed, (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
contained herein or in any document delivered pursuant hereto and (iii) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall
be valid only if set forth in a written instrument signed on behalf of such
party. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of
those rights.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-Survival of Representations, Warranties and Agreements.
None of the representations, warranties, covenants and other agreements in
this Agreement or in any instrument delivered pursuant to this Agreement,
including any rights arising out of any breach of such representations,
warranties, covenants and other agreements, shall survive the Effective Time
or the termination of this Agreement pursuant to Section 7.1, as the case may
be, except for those covenants and agreements contained herein and therein
that by their terms apply or are to be performed in whole or in part after
the Effective Time. Notwithstanding the foregoing, this Article VIII shall
survive the Effective Time and the confidentiality provisions of Section 5.3,
and Sections 5.9 and 7.3 shall survive the termination of this Agreement.
8.2 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed duly given (a) on the date of delivery if
delivered personally, or by telecopy upon confirmation of receipt, (b) on the
first Business Day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the third Business Day
following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be
<PAGE>
delivered as set forth below, or pursuant to such other instructions as may
be designated in writing by the party to receive such notice:
(a) if to Warner-Lambert or Merger Sub, to
Warner-Lambert Company
201 Tabor Road
Morris Plains, New Jersey 07950
Fax: (973) 540-3927
Attention: Vice President and General Counsel
with a copy to
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Fax: (212) 455-2502
Attention: James Cotter
Gary Horowitz
(b) if to Agouron, to
Agouron Pharmaceuticals, Inc.
10350 North Torrey Pines Rd.
La Jolla, California 92037
Fax: (619) 622-3297
Attention: Vice President and General Counsel
with a copy to
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Fax: (212) 848-7180
Attention: Mark Kessel
Creighton Condon
8.3 Interpretation. When a reference is made in this Agreement to
Sections, Exhibits or Schedules, such reference shall be to a Section of or
Exhibit or Schedule to this Agreement unless otherwise indicated. The table
of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. Whenever the words "include", "includes" or "including"
<PAGE>
are used in this Agreement, they shall be deemed to be followed by the words
"without limitation".
8.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other party, it being understood that
both parties need not sign the same counterpart.
8.5 Entire Agreement; No Third Party Beneficiaries.
(a) This Agreement, the Stock Option Agreement and the
Confidentiality Agreements constitute the entire agreement and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
(b) This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement, other than Section 5.7 (which is intended to be for the benefit of
the Persons covered thereby and may be enforced by such Persons).
8.6 Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws.
8.7 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any law or public
policy, all other terms and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
8.8 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by operation of law or otherwise),
without the prior written consent of the other party, and any attempt to make
any such assignment without such consent shall be null and void, except that
Merger Sub may assign, in its sole discretion, any or all of its rights,
<PAGE>
interests and obligations under this Agreement to any direct wholly owned
Subsidiary of Warner-Lambert without the consent of Agouron, but no such
assignment shall relieve Merger Sub of any of its obligations under this
Agreement. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
8.9 Submission to Jurisdiction; Waivers. Each of Warner-Lambert and
Agouron irrevocably agrees that any legal action or proceeding with respect
to this Agreement or for recognition and enforcement of any judgment in
respect hereof brought by the other party hereto or its successors or assigns
may be brought and determined in the Courts of the State of New York and
each of Warner-Lambert and Agouron hereby irrevocably submits with regard to
any such action or proceeding for itself and in respect to its property,
generally and unconditionally, to the nonexclusive jurisdiction of the
aforesaid courts. Each of Warner-Lambert and Agouron hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (a) any claim that it is not personally subject to the
jurisdiction of the above-named courts for any reason other than the failure
to lawfully serve process, (b) that it or its property is exempt or immune
from jurisdiction of any such court or from any legal process commenced in
such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or
otherwise), and (c) to the fullest extent permitted by applicable law, that
(i) the suit, action or proceeding in any such court is brought in an
inconvenient forum, (ii) the venue of such suit, action or proceeding is
improper and (iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
8.10 Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed
that the parties shall be entitled to specific performance of the terms
hereof, this being in addition to any other remedy to which they are entitled
at law or in equity.
8.11 Definitions. As used in this Agreement:
(a) "Beneficial ownership" or "beneficially own" shall have the
meaning under Section 13(d) of the Exchange Act and the rules and regulations
thereunder.
(b) "Benefit Plans" means, with respect to any Person, each employee
benefit plan, program, arrangement and contract (including, without
<PAGE>
limitation, any "employee benefit plan," as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") and any
bonus, deferred compensation, stock bonus, stock purchase, restricted stock,
stock option, employment, termination, stay agreement or bonus, change in
control and severance plan, program, arrangement and contract) in effect on
the date of this Agreement or disclosed on the Agouron Disclosure Schedule or
the Warner-Lambert Disclosure Schedule, as the case may be, to which such
Person or its Subsidiary is a party, which is maintained or contributed to by
such Person, or with respect to which such Person could incur material
liability under Section 4069, 4201 or 4212(c) of ERISA.
(c) "Board of Directors" means the Board of Directors of any
specified Person and any committees thereof.
(d) "Business Day" means any day on which banks are not required or
authorized to close in the City of New York.
(e) "Controlled Group" means any trade or business (whether or not
incorporated) under common control with Agouron within the meaning of
Sections 414(b), (c), (m) or (o) of the Code.
(f) "Exchange Ratio" means $60.00 divided by the Warner-Lambert
Common Stock Price, rounded to the nearest 1/10,000, provided that the
Exchange Ratio shall not be less than .8108 nor more than .9300.
(g) "Known" or "Knowledge" means, (i) with respect to Agouron, the
knowledge of such party's President, Chief Financial Officer, General
Counsel, Senior Vice President-Commercial Affairs, Senior Vice President-
Development or Corporate Vice President - Head of Operations and (ii) with
respect to Warner-Lambert, the knowledge of such party's Chief Executive
Officer, Chief Financial Officer, General Counsel, Vice President-
Pharmaceutical Sector or Vice President, Corporate Development and Licensing.
(h) "Material Adverse Effect" means, with respect to any entity, an
effect, individually or in the aggregate, materially adverse to (i) the
business, financial condition or results of operations of such entity and its
Subsidiaries (including in the case of Warner-Lambert, following the Merger,
the Surviving Corporation and its Subsidiaries) taken as a whole, (ii) the
development of the Investigational Compounds, taken as a whole, or the
marketing of Viracept or (iii) the ability of such party to consummate the
transactions contemplated by this Agreement and the Stock Option Agreement.
(i) "the other party" means, with respect to Agouron, Warner-Lambert
and means, with respect to Warner-Lambert, Agouron.
<PAGE>
(j) "Person" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization, other
entity or group (as defined in the Exchange Act).
(k) "SEC" means the Securities and Exchange Commission.
(l) "Subsidiary" when used with respect to any party means any
corporation or other organization, whether incorporated or unincorporated,
(i) of which such party or any other Subsidiary of such party is a general
partner (excluding partnerships, the general partnership interests of which
held by such party or any Subsidiary of such party do not have a majority of
the voting interests in such partnership) or (ii) at least a majority of the
securities or other interests of which having by their terms ordinary voting
power to elect a majority of the Board of Directors or others performing
similar functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such party or by any one or
more of its Subsidiaries, or by such party and one or more of its
Subsidiaries.
(m) "Warner-Lambert Common Stock Price" means the average of the
closing sales prices of Warner-Lambert Common Stock on the New York Stock
Exchange Composite Transactions Tape on each of the 10 consecutive trading
days up to and including the second immediately preceding trading day prior
to the date of the Agouron Stockholders Meeting.
______________________________
[Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, Warner-Lambert, Merger Sub and Agouron have
caused this Agreement to be signed by their respective officers thereunto
duly authorized, all as of the date first written above.
WARNER-LAMBERT COMPANY
By: /s/ Lodewijk J.R. de Vink
---------------------------------------------
Name: Lodewijk J.R. de Vink
Title: President and Chief Operating Officer
By: /s/ Rae G. Paltiel
---------------------------------------------
Name: Rae G. Paltiel
Title: Secretary
WLC ACQUISITION CORPORATION
By: /s/ Anthony H. Wild
---------------------------------------------
Name: Anthony H. Wild
Title: President
By: /s/ Richard B. Van Duyne
---------------------------------------------
Name: Richard B. Van Duyne
Title: Secretary
AGOURON PHARMACEUTICALS, INC.
By: /s/ Peter Johnson
---------------------------------------------
Name: Peter Johnson
Title: President
By: /s/ Gary Friedman
---------------------------------------------
Name: Gary Friedman
Title: Secretary
EXHIBIT 10.5
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of January 26, 1999 (the
"Agreement"), by and between Agouron Pharmaceuticals, Inc., a California
corporation ("Issuer"), and Warner-Lambert Company, a Delaware corporation
("Grantee").
WHEREAS, Grantee, Issuer and WLC Acquisition Corporation, a
California corporation and a wholly owned subsidiary of Grantee ("Sub") are
concurrently herewith entering into an Agreement and Plan of Merger, dated as
of the date hereof (the "Merger Agreement"; capitalized terms not defined
herein shall have the meanings set forth in the Merger Agreement), providing
for, among other things, the merger of Sub with and into Issuer with Issuer
as the surviving corporation; and
WHEREAS, as a condition and inducement to Grantee's willingness to
enter into the Merger Agreement, Grantee is requiring that Issuer agree, and
Issuer has agreed, to grant Grantee the Option (as defined below).
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein and in the Merger Agreement, Issuer and Grantee agree as follows:
1. Grant of Option. Subject to the terms and conditions set
forth herein, Issuer hereby grants to Grantee an irrevocable option (the
"Option") to purchase up to such number of shares (as adjusted as set forth
herein) (the "Option Shares") of Common Stock, no par value, of Issuer (the
"Issuer Common Stock") as equals 19.9% of the issued and outstanding shares
of Issuer Common Stock at a purchase price of $60.00 per Option Share (the
"Purchase Price").
2. Exercise of Option. (a) If not in material breach of the
Merger Agreement, Grantee may exercise the Option, in whole or in part, at
any time or from time to time following the occurrence of a Purchase Event
(as defined below); provided that, except as otherwise provided herein, the
Option shall terminate and be of no further force and effect upon the
earliest to occur of (i) the Effective Time of the Merger, (ii) 12 months
after the first occurrence of a Purchase Event or (iii) termination of the
Merger Agreement prior to the occurrence of a Purchase Event (unless such
termination itself constitutes a Purchase Event). Notwithstanding the
termination of the Option, Grantee shall be entitled to purchase those Option
Shares with respect to which it has exercised the Option pursuant to this
Section 2(a) in accordance with the terms hereof prior to the termination of
the Option. The termination of the Option shall not affect any rights
hereunder which by their terms extend beyond the date of such termination.
<PAGE>
(b) As used herein, a "Purchase Event" means the termination of
the Merger Agreement under any circumstance which would entitle Grantee to
receive a fee from the Issuer pursuant to Section 7.3(a) of the Merger
Agreement.
(c) In the event Grantee wishes to exercise the Option, it shall
send to Issuer a written notice (the date of which being herein referred to
as the "Notice Date") specifying (i) the total number of Option Shares it
intends to purchase pursuant to such exercise and (ii) a place and date not
earlier than three business days nor later than 20 business days from such
Notice Date for the closing of such purchase (a "Closing"; and the date of
such Closing, a "Closing Date"); provided that such Closing shall be held
only if (A) such purchase would not otherwise violate or cause the violation
of applicable law (including the HSR Act) and (B) no law, rule or regulation
shall have been adopted or promulgated, and no temporary restraining order,
preliminary or permanent injunction or other order, decree or ruling issued
by a court or other Governmental Entity of competent jurisdiction shall be in
effect, which prohibits delivery of such Option Shares (and the parties
hereto shall use their reasonable best efforts to have any such order,
injunction, decree or ruling vacated or reversed). If such Closing cannot be
consummated by reason of a restriction set forth in clause (A) or (B) above,
notwithstanding the provisions of Section 2(a), such Closing Date shall be
within 10 business days following the elimination of such restriction.
3. Payment and Delivery of Certificates. (a) On each Closing
Date, Grantee shall pay to Issuer in immediately available funds by wire
transfer to a bank account designated by Issuer an amount equal to the
Purchase Price multiplied by the Option Shares to be purchased on such
Closing Date.
(b) At each Closing, simultaneously with the delivery of
immediately available funds as provided in Section 3(a), Issuer shall deliver
to Grantee a certificate or certificates representing the Option Shares to be
purchased at such Closing, which Option Shares shall be free and clear of all
Liens, and Grantee shall deliver to Issuer a letter agreeing that Grantee
shall not offer to sell or otherwise dispose of such Option Shares in
violation of applicable law or the provisions of this Agreement. If, at the
time of issuance of any Option Shares pursuant to an exercise of all or part
of the Option hereunder, Issuer shall not have redeemed the Rights, or shall
have issued any similar securities, then each Option Share issued pursuant to
such exercise shall also represent a corresponding Right or new rights with
terms substantially the same as and at least as favorable to Grantee as are
provided under the Rights Agreement or any similar agreement then in effect.
(c) Certificates for the Option Shares delivered at each Closing
shall be endorsed with a restrictive legend which shall read substantially as
follows:
-2-
<PAGE>
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND PURSUANT TO THE TERMS OF A STOCK OPTION AGREEMENT
DATED AS OF JANUARY 26, 1999. A COPY OF SUCH AGREEMENT WILL BE
PROVIDED TO THE HOLDER HEREOF WITHOUT CHARGE UPON RECEIPT BY THE
ISSUER OF A WRITTEN REQUEST THEREFOR.
It is understood and agreed that (i) the reference to restrictions arising
under the Securities Act in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if Grantee shall have
delivered to Issuer a copy of a letter from the staff of the SEC, or an
opinion of counsel in form and substance reasonably satisfactory to Issuer
and its counsel, to the effect that such legend is not required for purposes
of the Securities Act and (ii) the reference to restrictions pursuant to this
Agreement in the above legend shall be removed by delivery of substitute
certificate(s) without such reference if the Option Shares evidenced by
certificate(s) containing such reference have been sold or transferred in
compliance with the provisions of this Agreement under circumstances that do
not require the retention of such reference.
4. Authorized Stock. Issuer hereby represents and warrants to
Grantee that Issuer has taken all necessary corporate and other action to
authorize and reserve and to permit it to issue, and, at all times from the
date hereof until the obligation to deliver Issuer Common Stock upon the
exercise of the Option or any Substitute Option (as hereinafter defined)
terminates, will have reserved for issuance, upon exercise of the Option or
any Substitute Option, shares of Issuer Common Stock necessary for Grantee to
exercise the Option or Substitute Option, and Issuer will take all necessary
corporate action to authorize and reserve for issuance all additional shares
of Issuer Common Stock or other securities which may be issued pursuant to
Section 6 upon exercise of the Option or Substitute Option. The shares of
Issuer Common Stock to be issued upon due exercise of the Option or
Substitute Option, including all additional shares of Issuer Common Stock or
other securities which may be issuable upon exercise of the Option or
Substitute Option pursuant to Section 6, upon issuance pursuant hereto, shall
be duly and validly issued, fully paid and nonassessable, and shall be
delivered free and clear of all Liens, including any preemptive rights of any
stockholder of Issuer.
5. Purchase Not for Distribution. Grantee hereby represents and
warrants to Issuer that any Option Shares or other securities acquired by
Grantee upon exercise of the Option or Substitute Option will not be taken
with a view to the public distribution thereof and will not be transferred or
otherwise disposed of except in a transaction registered or exempt from
registration under the Securities Act.
-3-
<PAGE>
6. Adjustment upon Changes in Capitalization, etc. (a) In the
event of any change in Issuer Common Stock by reason of a reclassification,
recapitalization, stock split, split-up, combination, exchange of shares,
stock dividend, dividend payable in any other securities, or any similar
event, the type and number of shares or securities subject to the Option, and
the Purchase Price therefor, shall be adjusted appropriately, and proper
provision shall be made in the agreements governing such transaction, so that
Grantee shall receive upon exercise of the Option the number and class of
shares or other securities or property that Grantee would have received in
respect of Issuer Common Stock if the Option had been exercised immediately
prior to such event or the record date therefor, as applicable. If any
additional shares of Issuer Common Stock are issued after the date of this
Agreement (other than pursuant to an event described in the immediately
preceding sentence), the number of shares of Issuer Common Stock subject to
the Option shall be adjusted so that, after such issuance, it equals 19.9% of
the number of shares of Issuer Common Stock then issued and outstanding,
without giving effect to any shares subject to or issued pursuant to the
Option.
(b) In the event that Issuer shall enter into an agreement (i) to
consolidate with or merge into any person, other than Grantee or one of its
Subsidiaries, and shall not be the continuing or surviving corporation of
such consolidation or merger, (ii) to permit any person, other than Grantee
or one of its Subsidiaries, to merge into Issuer and Issuer shall be the
continuing or surviving corporation, but, in connection with such merger, the
shares of Issuer Common Stock outstanding immediately prior to the
consummation of such merger shall be changed into or exchanged for stock or
other securities of Issuer or any other person or cash or any other property,
or the shares of Issuer Common Stock outstanding immediately prior to the
consummation of such merger shall after such merger represent less than 50%
of the outstanding voting securities of the merged company, or (iii) to sell
or otherwise transfer all or substantially all of its assets to any person,
other than Grantee or one of its Subsidiaries, then, and in each such case,
the agreement governing such transaction shall make proper provisions so that
the Option shall, upon the consummation of any such transaction and upon the
terms and conditions set forth herein, be converted into, or exchanged for,
an option (the "Substitute Option"), at the election of Grantee, of either
(I) the Acquiring Corporation (as defined below) or (II) any person that
controls the Acquiring Corporation (any such person specified in clause (I)
or (II) being referred to as "Substitute Option Issuer").
(c) The Substitute Option shall have the same terms as the Option;
provided that the exercise price therefor and number of shares subject
thereto shall be as set forth in this Section 6 and the repurchase rights
relating thereto shall be as set forth in Section 8; provided, further, that
the Substitute Option shall be exercisable immediately upon issuance without
the occurrence of a Purchase Event; and provided, further, that if the terms
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of the Substitute Option cannot, for legal reasons, be the same as the Option
(subject to the variations described in the foregoing provisos), such terms
shall be as similar as possible and in no event less advantageous to Grantee.
Substitute Option Issuer shall also enter into an agreement with Grantee in
substantially the same form as this Agreement (subject to the variations
described in the foregoing provisos), which shall be applicable to the
Substitute Option.
(d) The Substitute Option shall be exercisable for such number of
shares of Substitute Common Stock (as defined below) as is equal to the
Assigned Value (as defined below) multiplied by the number of shares of
Issuer Common Stock for which the Option was theretofore exercisable, divided
by the Average Price (as defined below), rounded up to the nearest whole
share. The exercise price per share of Substitute Common Stock of the
Substitute Option (the "Substitute Option Price") shall then be equal to the
Purchase Price multiplied by a fraction in which the numerator is the number
of shares of Issuer Common Stock for which the Option was theretofore
exercisable and the denominator is the number of shares of Substitute Common
Stock for which the Substitute Option is exercisable.
(e) In no event, pursuant to any of the foregoing paragraphs,
shall the Substitute Option be exercisable for more than 19.9% of the
aggregate of the shares of Substitute Common Stock outstanding prior to
exercise of the Substitute Option. In the event that the Substitute Option
would be exercisable for more than 19.9% of the aggregate of the shares of
outstanding Substitute Common Stock but for the limitation in the first
sentence of this Section 6(e), Substitute Option Issuer shall make a cash
payment to Grantee equal to the excess of (i) the value of the Substitute
Option without giving effect to the limitation in the first sentence of this
Section 6(e) over (ii) the value of the Substitute Option after giving effect
to the limitation in the first sentence of this Section 6(e). This
difference in value shall be determined in good faith by a nationally
recognized investment banking firm selected by Grantee.
(f) Issuer shall not enter into any transaction described in
Section 6(b) unless the Acquiring Corporation and, if applicable, any
beneficial owner of 50% or more of the outstanding voting stock of the
Acquiring Corporation (after giving effect to the transaction) assume in
writing all the obligations of Issuer hereunder and take all other actions
that may be necessary so that the provisions of this Agreement are given full
force and effect (including, without limitation, any action that may be
necessary so that the holders of the other shares of common stock issued by
Substitute Option Issuer are not entitled to exercise any rights comparable
to the Rights by reason of the issuance or exercise of the Substitute Option
and the shares of Substitute Common Stock are otherwise in no way
distinguishable from or have lesser economic value than other shares of
common stock issued by Substitute Option Issuer (other than any diminution in
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value resulting from the fact, if applicable, that the shares of Substitute
Common Stock are restricted securities, as defined in Rule 144 under the
Securities Act or any successor provision)).
(g) For purposes of this Agreement, the following terms have the
following meanings:
(1) "Acquiring Corporation" means (i) the continuing or surviving
corporation of a consolidation or merger with Issuer (if other than
Issuer), (ii) Issuer in a merger in which Issuer is the continuing or
surviving corporation and (iii) the transferee of all or substantially
all of Issuer's assets.
(2) "Assigned Value" means the highest of (w) the price per share
of Issuer Common Stock at which a tender offer or exchange offer for
Issuer Common Stock has been made after the date hereof and prior to the
consummation of the consolidation, merger or sale referred to in Section
6(b), (x) the price per share to be paid by any third party or the
consideration per share to be received by holders of Issuer Common Stock,
in each case pursuant to the agreement with Issuer with respect to the
consolidation, merger or sale referred to in Section 6(b), (y) the
highest closing sales price per share for Issuer Common Stock quoted on
the NYSE (or if such Issuer Common Stock is not quoted on the NYSE, the
highest bid price per share as quoted on the National Association of
Securities Dealers Automated Quotation System or, if the shares of
Issuer Common Stock are not quoted thereon, on the principal trading
market on which such shares are traded as reported by a recognized
source) during the period from the date hereof to the date of exercise
of the Option and (z) in the event the transaction referred to in
Section 6(b) is a sale of all or substantially all of Issuer's assets,
an amount equal to (i) the sum of the price paid in such sale for such
assets (including assumed liabilities) and the current market value of
the remaining assets of Issuer, as determined in good faith by a
nationally recognized investment banking firm selected by Grantee,
divided by (ii) the number of shares of Issuer Common Stock outstanding
at such time. In the event that a tender offer or exchange offer is
made for Issuer Common Stock or an agreement is entered into for a
merger or consolidation involving consideration other than cash, the
value of the securities or other property issuable or deliverable in
exchange for Issuer Common Stock shall be determined in good faith by a
nationally recognized investment banking firm selected by Grantee.
(3) "Average Price" means the average closing sales price per
share of a share of Substitute Common Stock quoted on the NYSE (or if
such Substitute Common Stock is not quoted on the NYSE, the highest bid
price per share as quoted on the National Association of Securities
Dealers Automated Quotation System or, if the shares of Substitute
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Common Stock are not quoted thereon, on the principal trading market on
which such shares are traded as reported by a recognized source) for the
twenty trading days immediately preceding the fifth business day prior
to the consolidation, merger or sale in question, but in no event higher
than the closing price of the shares of Substitute Common Stock on the
day preceding such consolidation, merger or sale; provided that if
Substitute Option Issuer is Issuer, the Average Price shall be computed
with respect to a share of common stock issued by Issuer, the person
merging into Issuer or by any company which controls such person, as
Grantee may elect.
(4) "Substitute Common Stock" means the shares of capital stock
(or similar equity interest) with the greatest voting power in respect
of the election of directors (or persons similarly responsible for the
direction of the business and affairs) of the Substitute Option Issuer.
7. Repurchase of Option and Option Shares. (a) Notwithstanding
the provisions of Section 2(a), at any time commencing upon the first
occurrence of a Repurchase Event (as defined below) and ending 90 days
thereafter, Issuer (or any successor entity thereof) shall:
(i) at the request of Grantee, repurchase from Grantee the
Option (if and to the extent not previously exercised or
terminated) at a price equal to the excess, if any, of (x) the
Applicable Price (as defined below) as of the Section 7 Request
Date (as defined below) for a share of Issuer Common Stock over (y)
the Purchase Price (subject to adjustment pursuant to Section
6(a)), multiplied by the number of shares of Issuer Common Stock
with respect to which the Option has not been exercised (the
"Option Repurchase Price"); and
(ii) at the request of an owner of Option Shares from time to
time, repurchase such number of Option Shares as such owner shall
designate at a price equal to the Applicable Price as of the
Section 7 Request Date multiplied by the number of Option Shares
requested to be repurchased by such owner (the "Option Share
Repurchase Price").
(b) If Grantee or an owner of Option Shares exercises its rights
under this Section 7, Issuer shall, within 10 business days after the
Section 7 Request Date, pay the Option Repurchase Price or Option Share
Repurchase Price, as the case may be, in immediately available funds, and
Grantee or such owner, as the case may be, shall surrender to Issuer the
Option or Option Shares, as the case may be.
(c) For purposes of this Agreement, the following terms have the
following meanings:
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(i) "Applicable Price", as of any date, means the highest of (A)
the highest price per share at which a tender offer or exchange offer
has been made for shares of Issuer Common Stock after the date hereof
and on or prior to such date, (B) the highest price per share to be paid
by any third party for shares of Issuer Common Stock or the
consideration per share to be received by holders of Issuer Common
Stock, in each case pursuant to an agreement for an Acquisition Proposal
with Issuer entered into on or prior to such date or (C) closing sales
price per share of Issuer Common Stock quoted on the NYSE (or if Issuer
Common Stock is not quoted on the NYSE, the highest bid price per share
as quoted on the National Association of Securities Dealers Automated
Quotations System or, if the shares of Issuer Common Stock are not
quoted thereon, on the principal trading market on which such shares are
traded as reported by a recognized source) on the day preceding such
date. If the consideration to be offered, paid or received pursuant to
either of the foregoing clauses (A) or (B) shall be other than in cash,
the value of such consideration shall be determined in good faith by an
independent nationally recognized investment banking firm selected by
Grantee.
(ii) "Repurchase Event" means the occurrence of a Purchase Event
followed by the consummation of any transaction the proposal of which
would constitute an Acquisition Proposal.
(iii) "Section 7 Request Date" means the date on which Grantee or an
owner of Option Shares exercises its rights under this Section.
8. Repurchase of Substitute Option. (a) At any time after
issuance of the Substitute Option and prior to the expiration of the
Substitute Option, Substitute Option Issuer (or any successor entity thereof)
shall:
(i) at the request of Grantee, repurchase from Grantee the
Substitute Option (if and to the extent not previously exercised or
terminated) at a price equal to the excess, if any, of (x) the Highest
Closing Price as of the Section 8 Request Date (as defined below) for a
share of Substitute Common Stock over (y) the Purchase Price (subject to
adjustment pursuant to Section 6(a)), multiplied by the number of shares
of Substitute Common Stock with respect to which the Substitute Option
has not been exercised (the "Substitute Option Repurchase Price"); and
(ii) at the request of an owner of shares of Substitute Common
Stock issued upon exercise of the Substitute Option, repurchase such
number of shares of Substitute Common Stock as such owner shall
designate at a price equal to the Highest Closing Price as of the
Section 8 Request Date multiplied by the number of shares of Substitute
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Common Stock requested to be repurchased by such owner (the "Substitute
Share Repurchase Price").
(b) If Grantee or an owner of shares of Substitute Common Stock
issued upon exercise of the Substitute Option exercises its rights under this
Section 8, Substitute Option Issuer shall, within 10 business days after the
Section 8 Request Date, pay the Substitute Option Repurchase Price or
Substitute Share Repurchase Price, as the case may be, in immediately
available funds, and Grantee or such owner, as the case may be, shall
surrender to Issuer the Option or shares of Substitute Common Stock, as the
case may be.
(c) For purposes of this Agreement, the following terms have the
following meanings:
(i) "Highest Closing Price" means the highest closing sales price
for shares of Substitute Common Stock quoted on the NYSE (or if the
Substitute Common Stock is not quoted on the NYSE, the highest bid price
per share as quoted on the National Association of Securities Dealers
Automated Quotations System or, if the shares of Substitute Common Stock
are not quoted thereon, on the principal trading market on which such
shares are traded as reported by a recognized source) during the six-
month period preceding the Section 8 Request Date; and
(ii) "Section 8 Request Date" means the date on which Grantee or an
Owner exercises its rights under this Section.
9. Registration Rights. Issuer shall, if requested by Grantee or
any owner of Option Shares (collectively with Grantee, the "Owners") at any
time and from time to time within three years of the first exercise of the
Option, as expeditiously as possible prepare and file up to two registration
statements under the Securities Act if such registration is necessary in
order to permit the sale or other disposition of any or all shares of
securities that have been acquired by or are issuable to such Owners upon
exercise of the Option in accordance with the intended method of sale or
other disposition stated by such Owners, including a "shelf" registration
statement under Rule 415 under the Securities Act or any successor provision,
and Issuer shall use its best efforts to qualify such shares or other
securities under any applicable state securities laws. Issuer shall use all
reasonable efforts to cause each such registration statement to become
effective, to obtain all consents or waivers of other parties which are
required therefor and to keep such registration statement effective for such
period not in excess of 180 days from the day such registration statement
first becomes effective as may be reasonably necessary to effect such sale or
other disposition. The obligations of Issuer hereunder to file a
registration statement and to maintain its effectiveness may be suspended for
one or more periods of time not exceeding 30 days in the aggregate if the
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Board of Directors of Issuer shall have determined that the filing of such
registration statement or the maintenance of its effectiveness would require
disclosure of nonpublic information that would materially and adversely
affect Issuer. Any registration statement prepared and filed under this
Section 9, and any sale covered thereby, shall be at Issuer's expense except
for underwriting discounts or commissions, brokers' fees and the fees and
disbursements of Owners' counsel related thereto. The Owners shall provide
all information reasonably requested by Issuer for inclusion in any
registration statement to be filed hereunder. If during the time period
referred to in the first sentence of this Section 9 Issuer effects a
registration under the Securities Act of Issuer Common Stock for its own
account or for any other stockholders of Issuer (other than on Form S-4 or
Form S-8, or any successor form), it shall allow the Owners the right to
participate in such registration, and such participation shall not affect the
obligation of Issuer to effect two registration statements for the Owners
under this Section 9; provided that, if the managing underwriters of such
offering advise Issuer in writing that in their opinion the number of shares
of Issuer Common Stock requested to be included in such registration exceeds
the number which can be sold in such offering, Issuer shall include the
shares requested to be included therein by the Owners pro rata with the
shares intended to be included therein by Issuer. In connection with any
registration pursuant to this Section 9, Issuer and the Owners shall provide
each other and any underwriter of the offering with customary
representations, warranties, covenants, indemnification and contribution in
connection with such registration.
10. Listing; Reasonable Best Efforts. (a) If Issuer Common Stock
or any other securities to be acquired upon exercise of the Option are then
listed on the NYSE or any other securities exchange or market, Issuer, upon
the request of any Owner, will promptly file an application to list the
shares of Issuer Common Stock or other securities to be acquired upon
exercise of the Option on the NYSE or such other securities exchange or
market and will use its best efforts to obtain approval of such listing as
soon as practicable.
(b) Issuer will use its reasonable best 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
permit the exercise of the Option or the Substitute Option in accordance with
the terms and conditions hereof, as soon as practicable after the date
hereof, including making any appropriate filing of pursuant to the HSR Act
and any other Regulatory Law, supplying as promptly as practicable any
additional information and documentary material that may be requested
pursuant to the HSR Act and any other Regulatory Law, and taking all other
actions necessary to cause the expiration or termination of the applicable
waiting periods under the HSR Act as soon as practicable.
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11. Limitation of Grantee Profit. (a) Notwithstanding any other
provision herein, in no event shall Grantee's Total Profit (as defined below)
exceed $60 million (the "Maximum Profit") and, if it otherwise would exceed
such amount, Grantee, at its sole discretion, shall either (i) reduce the
number of shares subject to the Option, (ii) deliver to Issuer for
cancellation shares of Issuer Common Stock (or other securities into which
such Option Shares are converted or exchanged), (iii) pay cash to Issuer, or
(iv) any combination of the foregoing, so that Grantee's actually realized
Total Profit shall not exceed the Maximum Profit after taking into account
the foregoing actions.
(b) For purposes of this Agreement, "Total Profit" shall mean:
(i) the aggregate amount of (A) any excess of (x) the net cash amounts
received by Grantee pursuant to a sale of Option Shares (or securities into
which such shares are converted or exchanged) to any unaffiliated third party
within 12 months after the exercise of the Option, over (y) the Grantee's
aggregate purchase price for such Option Shares (or other securities), plus
(B) any amounts received by Grantee on the transfer of the Option (including
amounts payable to Grantee pursuant to Section 7), plus (C) any equivalent
amounts with respect to the Substitute Option (including Section 6(e)
hereof), plus (D) any amounts received by Grantee pursuant to Section 7.3(a)
of the Merger Agreement, minus (ii) the sum of amounts of any cash previously
paid to Issuer pursuant to this Section 11 plus the value of the Option
Shares (or other securities) previously delivered to Issuer for cancellation
pursuant to this Section 11.
(c) Notwithstanding any other provision of this Agreement, nothing
in this Agreement shall affect the ability of Grantee to receive, nor relieve
Issuer's obligation to pay, any payment provided for in Section 7.3 of the
Merger Agreement; provided that if and to the extent the Total Profit
received by Grantee would exceed the Maximum Profit following receipt of such
payment, Grantee shall be obligated to comply with the terms of Section 11(a)
within 15 days of the latest of (i) the date of receipt of such payment, (ii)
the date of receipt of the net cash by Grantee pursuant to the sale of Option
Shares (or securities into which such Option Shares are converted or
exchanged) to any unaffiliated party within 12 months after the exercise of
this Option with respect to such Option Shares, (iii) the date of receipt of
net cash from disposition of the Option and (iv) the date of receipt of
equivalent amounts pursuant to the sale of the Substitute Option or shares of
Substitute Common Stock (or other securities into which such Substitute
Common Stock is converted or exchanged).
(d) For purposes of Section 11(a) and clause (ii) of Section
11(b), the value of any Option Shares delivered to Issuer shall be the
Assigned Value of such Option Shares and the value of any Substitute Common
Stock delivered to Issuer shall be the Highest Closing Price of such
Substitute Common Stock.
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12. Loss, Theft, Etc. of Agreement. This Agreement (and the
Option granted hereby) is exchangeable, without expense, at the option of
Grantee, upon presentation and surrender of this Agreement at the principal
office of Issuer for other Agreements providing for Options of different
denominations entitling the holder thereof to purchase in the aggregate the
same number of shares of Issuer Common Stock purchasable hereunder. The
terms "Agreement" and "Option" as used herein include any other Agreements
and related Options for which this Agreement (and the Option granted hereby)
may be exchanged. Upon receipt by Issuer of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Agreement, and
(in the case of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this Agreement, if
mutilated, Issuer will execute and deliver a new Agreement of like tenor and
date. Any such new Agreement executed and delivered shall constitute an
additional contractual obligation on the part of Issuer, whether or not the
Agreement so lost, stolen, destroyed or mutilated shall at any time be
enforceable by anyone.
13. Miscellaneous. (a) Expenses. Except as otherwise provided
in Section 9 hereof or in the Merger Agreement, each of the parties hereto
shall bear and pay all Expenses incurred by it or on its behalf in connection
with the transactions contemplated hereunder, including fees and expenses of
its own financial consultants, investment bankers, accountants and counsel.
(b) Waiver and Amendment. Any provision of this Agreement may be
waived at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
(c) Entire Agreement; No Third-Party Beneficiary; Severability.
Except as otherwise set forth in the Merger Agreement, this Agreement,
together with the Merger Agreement, (a) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and (b) is not
intended to confer upon any person other than the parties hereto any rights
or remedies hereunder. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or a federal or
state regulatory agency to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated. If for any reason such court or regulatory agency determines
that the Option does not permit Grantee to acquire, or does not require
Issuer (or Substitute Option Issuer) to repurchase, the full number of shares
of Issuer Common Stock (or Substitute Common Stock) as provided in Sections 2
and 7 (or in the case of Substitute Common Stock Sections 2 and 8), as
adjusted pursuant to Section 6, it is the express intention of Issuer to
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allow Grantee to acquire or to require Issuer to repurchase such lesser
number of shares as may be permissible without any amendment or modification
hereof.
(D) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE REGARDLESS OF THE LAWS
THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
(e) Descriptive Headings. The descriptive headings contained
herein are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
(f) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given as set forth in Section 8.2 of the
Merger Agreement.
(g) Counterparts. This Agreement and any amendments
hereto may be executed in two counterparts, each of which shall be considered
one and the same agreement and shall become effective when both counterparts
have been signed by each of the parties and delivered to the other party, it
being understood that both parties need not sign the same counterpart.
(h) Assignment. Grantee may assign this Agreement in
whole to any affiliate of Grantee at any time. Except as provided in the
next sentence and by operation of law, Grantee may not, without the prior
written consent of Issuer (which shall not be unreasonably withheld), assign
this Agreement to any other person. Upon the occurrence of a Purchase Event,
Grantee may sell, transfer, assign or otherwise dispose of, in whole at any
time, its rights and obligations hereunder. In the case of any sale,
transfer, assignment or disposition of this Option, Issuer shall do all
things reasonably necessary to facilitate such transaction. This Agreement
shall not be assignable by Issuer except by operation of law. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors
and assigns.
(i) Representations and Warranties. The representations
and warranties contained in Sections 3.1(a) and 3.2(a) of the Merger
Agreement, and, to the extent they relate to this Stock Option Agreement, in
Sections 3.1(c), (f) and (i) and 3.2(c), (f), (l) and (m) of the Merger
Agreement, are incorporated herein by reference.
(j) Rights Plan. Until the Option has been exercised or
terminated in full and Grantee no longer holds any Option Shares, Issuer
shall not amend, modify or waive any provision of the Rights Agreement (the
"Rights Agreement") or take any other action which would cause Grantee or any
of its "Affiliates" or "Associates" to become an "Acquiring Person", or which
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would cause a "Stock Acquisition Date" or "Distribution Date", any event
specified in Section 11(a)(ii) or 13 of the Rights Agreement or any similar
event with respect to the Rights to occur, by reason of the existence or
exercise (in whole or in part) of the Option, the beneficial ownership by
Grantee or any of its "Affiliates" or "Associates" of any of the Option
Shares, or the consummation of the other transactions contemplated hereby
(all terms in quotes are used as defined in the Rights Agreement). This
covenant shall also apply to any Substitute Option or shares of Substitute
Common Stock issued in respect thereof, and to any securities into which any
Option Shares or Substitute Common Stock are converted or exchanged.
(k) Further Assurances. In the event of any exercise
of the Option by Grantee, Issuer and Grantee shall execute and deliver all
other documents and instruments and take all other action that may be
reasonably necessary in order to consummate the transactions provided for by
such exercise.
(l) Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms. It is
accordingly agreed that the parties shall be entitled to specific performance
of the terms hereof, this being in addition to any other remedy to which they
are entitled at law or in equity. Both parties further agree to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such equitable relief and that this provision is without
prejudice to any other rights that the parties hereto may have for any
failure to perform this Agreement.
(m) Submission to Jurisdiction; Waivers. Each of
Issuer and Grantee irrevocably agrees that any legal action or proceeding
with respect to this Agreement or for recognition and enforcement of any
judgment in respect hereof brought by the other party hereto or its
successors or assigns may be brought and determined in the Courts of the
State of New York, and each of Issuer and Grantee hereby irrevocably submits
with regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the nonexclusive jurisdiction of
the aforesaid courts. Each of Issuer and Grantee hereby irrevocably waives,
and agrees not to assert, by way of motion, as a defense, counterclaim or
otherwise, in any action or proceeding with respect to this Agreement, (a)
any claim that it is not personally subject to the jurisdiction of the above-
named courts for any reason other than the failure to lawfully serve process,
(b) that it or its property is exempt or immune from jurisdiction of any such
court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise), and (c) to the
fullest extent permitted by applicable law, that (i) the suit, action or
proceeding in any such court is brought in an inconvenient forum, (ii) the
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venue of such suit, action or proceeding is improper and (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this
Stock Option Agreement to be signed by their respective officers thereunto
duly authorized as of the day and year first written above.
WARNER-LAMBERT COMPANY
By: /s/ Lodewijk J.R. de Vink
Name: Lodewijk J.R. de Vink
Title: President and Chief
Operating Officer
AGOURON PHARMACEUTICALS, INC.
By: /s/ Peter Johnson
Name: Peter Johnson
Title: President
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EXHIBIT 10.6
Form of Employment Agreement dated January 26, 1999
executed with Peter Johnson, Marvin R. Brown,
Gary E. Friedman, Barry D. Quart and R. Kent Snyder
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated January
26, 1999, is made and entered into by and among Warner-Lambert Company, a
Delaware corporation (the "Parent"), Agouron Pharmaceuticals, Inc., a California
corporation (the "Corporation"), and ___________(the "Executive").
WHEREAS, the Executive is currently employed by the
Corporation as its [position]_______________________________, and the
Corporation desires to secure the continued employment of the Executive; and
WHEREAS, pursuant to the Agreement and Plan of Merger among
the Parent, WL Acquisition Corporation, a California corporation and a direct
wholly-owned subsidiary of the Parent, and the Corporation (the "Merger
Agreement"), dated as of January 26, 1999, the parties thereto have agreed to a
merger with the Corporation pursuant to the terms thereof; and
WHEREAS, the Parent and the Corporation desire to secure the
Executive's participation in the manner hereinafter specified in the business of
the Corporation and the Parent and to make provision for payment of reasonable
compensation to the Executive for such services and the Executive is willing to
be employed by the Parent and the Corporation to perform the duties incident to
such employment upon the terms and conditions hereinafter set forth and thus to
forego opportunities elsewhere; and
WHEREAS, the parties desire to enter into this Agreement, as
of the Effective Date (as hereinafter defined), setting forth the terms and
conditions of the employment relationship of the Executive with the Corporation
and the Parent during the Term (as hereinafter defined).
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
<PAGE>
1. Employment. (a) Employment. The Corporation and Parent
hereby agree to employ the Executive, and the Executive hereby agrees to serve,
as [position]______________________________ of the Corporation, or in such other
executive capacity as may be agreed to by the Executive and the Parent, during
the Term.
(b) Duties. As [position]_____________________________ of the
Corporation, the Executive will have full authority to act on behalf of the
Corporation in a manner that is consistent with his title and position. In such
capacity, the Executive also agrees to perform such duties and exercise such
powers commensurate with his office as may from time to time be reasonably
requested of him by the Board or vested in him by the bylaws of the Corporation.
During the Term, the Executive shall:
(1) devote substantially all of his business time, attention
and abilities to the business of the Corporation (including its
subsidiaries or affiliates, when so required); and
(2) faithfully serve the Corporation and use his best efforts
to promote and develop the interests of the Corporation.
(c) Position Reassignment: Notwithstanding the provisions of
the preceding Clauses 1(a) and 1(b), it is expressly understood and agreed that
at the option of the Parent, and upon written notice, the Executive shall
relinquish the position set forth in said Clauses, or such other executive
capacity in which the Executive may then be serving, and the Executive shall
instead be employed as an employee of the Corporation or the Parent, as
determined by the Parent. In such capacity, the Executive shall perform such
services at such times and in such capacities as may reasonably be required by
the Corporation or the Parent, as appropriate. A reassignment in accordance with
this paragraph shall be referred to herein as a " Reassignment".
2. Term of Employment. The term (the "Term") of the
Executive's employment hereunder shall be for a period of three years,
commencing on the Effective Time as defined in the Merger Agreement (the
"Effective Date"), and (unless earlier terminated in accordance with the terms
of Paragraph 4(a) below or as otherwise extended by the mutual agreement of the
parties) ending on the third anniversary thereof.
3. Compensation. Subject to, and in accordance with, the terms
of this Agreement, the Corporation shall pay compensation and provide benefits
to the Executive as follows:
(a) Base Salary. The Corporation shall pay to the Executive a
base salary of $____[insert current salary]_______ per annum during the Term
(the "Base Salary"). The Executive shall receive his or her salary in equal
monthly installments (or in such other equal installments in accordance with the
Corporation's payroll practices in effect from time to time). The Executive
shall be eligible for annual salary increases in accordance with the
compensation policies of the Corporation, as approved by the Parent, in effect
from time to time.
(b) Past-Service Bonus. On or before June 30, 1999, the
Corporation will pay the Executive a past service bonus for the fiscal year
ending June 30, 1999 in accordance with the Corporation's past practice, subject
to approval of the Parent (the "Past-Service Bonus"). The Past-Service Bonus
shall be no less than the bonus paid for the fiscal year ending June 30, 1998.
<PAGE>
Executive's bonus for the fiscal year ending June 30, 1998, was $__[insert bonus
amount]____________.
(c) Perquisites. The Executive shall be entitled to
participate in all of the Corporation's benefit and welfare plans (including
vacation policy) that the Executive was entitled to immediately prior to the
Effective Date until December 31, 2000 while such programs are available to the
Corporation's employees generally as provided in the Merger Agreement. Effective
as of January 1, 2001, the Executive shall also be provided with the opportunity
to enroll in the Parent's benefit plans at the same time and on the same terms
and conditions as are applicable to the Corporation's employees generally as
provided in the Merger Agreement; provided that the Executive shall be entitled
to participate in the Parent's tax-qualified defined benefit plan as of January
1, 2000. The vacation entitlement under the Corporation's vacation policy shall
not be reduced after transition to the Parent's policy. Without limiting the
generality of the foregoing, the parties hereto hereby expressly agree that the
Executive shall receive the following benefits:
(i) Past-Service Credit. For purposes of eligibility and
vesting (but not benefit accrual) in the Parent's benefit plans, the Executive
shall be given credit for all of his full and partial years of service with the
Corporation as an officer or employee that he had completed as of the Effective
Date. [Add the following if Executive has attained age 50 and completed seven
years (7) years of service with the Corporation as an officer or an employee as
of the Effective Date: In addition, if the Executive has attained age 50 and
completed seven years (7) years of service with the Corporation as an officer or
an employee as of the Effective Date and has remained employed with the
Corporation or Parent until the expiration of the three-year Term of the
Agreement, such Executive shall receive benefit accrual credit in the Parent's
pension plan for the aggregate full and partial years of service with both the
Corporation and the Parent as an officer and employee. Executive commenced his
service with the Corporation on _[insert date of employment with
Corporation_________________]. It is understood that such benefit accrual credit
may be provided in either the tax-qualified or the non-qualified pension plan as
determined by the Parent.
(ii) Incentive Bonus. Beginning July 1, 1999, the Executive
shall participate in an Incentive Bonus Plan in which the Executive will be
entitled to earn an annual bonus (the "Bonus") which will be based on the
achievement by the Executive, the Corporation and the Parent of certain
performance goals as of the end of each calendar year set at a level applicable
to other comparable executives of the Parent and its affiliates in the same
grade or band as the Executive in an amount determined by the Parent upon the
recommendation of the Chief Executive Officer of the Corporation; provided,
however, that the bonus for the period beginning on July 1, 1999 and ending on
December 31, 1999 shall be made on a pro-rata basis to reflect payment of the
Past-Service Bonus.
(iii) Stock Options. The Executive's stock options of the
Corporation that are outstanding as of the Effective Date as defined in the
Merger Agreement shall be assumed by the Parent in accordance with the terms of
the Merger Agreement ("Rollover Options"). In addition the Executive shall be
awarded additional stock options under the Parent's stock option plans on or
about June 30, 1999 under the terms and conditions that are consistent with
options granted in 1999 to comparable Executives of the Parent in the same grade
or band in accordance with the Parent's grant guidelines. Commencing January 1,
2000, the Executive shall be eligible to participate on an annual basis in the
Parent's stock option plans on the same date as grants made to other comparable
executives in the same grade or band as the Executive. Such option grants to the
Executive shall be
<PAGE>
made under the same terms and conditions offered to other comparable executives
in the same grade or band as the Executive in an amount determined by the Parent
upon recommendation of the Chief Executive Officer of the Corporation; provided,
however, that the option grant for the period beginning on July 1, 1999 and
ending on December 31, 1999 shall be made on a pro-rata basis to reflect the
grant made on or about June 30, 1999.
(iv) Reimbursement of Expenses. The Corporation shall
reimburse the Executive for all reasonable expenses incurred personally by him
on behalf of the Corporation in accordance with the policies and procedures
applicable to comparable executives of the Parent within the same grade or band
as the Executive.
4. Termination, Reassignment or Resignation.
(a) Earlier Termination of Employment, Reassignment or
Resignation. Notwithstanding the provisions of Paragraph 2, the Executive's
employment with the Corporation may be terminated, the Executive may undergo
Reassignment or the Executive may resign such employment prior to the expiration
of the Term as follows:
(1) The Corporation, with the prior approval of the Parent,
may terminate the Executive's employment hereunder for Cause, provided
that the Corporation complies with the provisions of Paragraph 4(e)(1);
(2) The Corporation or the Parent may undertake a Reassignment
of the Executive in accordance with Paragraph 1(c) hereof at any time
if it deems it to be in its best interest of the Corporation or the
Parent, provided that the Corporation complies with the provisions of
Paragraph 4(e)(2);
(3) During the period that the Executive experiences a
Disability, the Corporation may designate the Executive's employment as
inactive hereunder, provided that the Corporation complies with the
provisions of Paragraph 4(e)(3);
(4) The Executive's employment hereunder shall terminate
automatically upon his death; or
(5) The Executive may resign from his employment with the
Corporation with or without Good Reason.
(b) Definition of "Cause". As used herein, "Cause" shall mean,
during the Term of this Agreement, the occurrence of any of the following:
(1) acts of common law fraud against the Parent, the
Corporation or their affiliates on the part of the Executive; provided,
however, that prior to the determination that "Cause" under this
Paragraph 4(b)(1) has occurred, the Corporation or the Parent shall (A)
provide to the Executive in writing, in reasonable detail, the reasons
for the determination that such "Cause" exists, (B) afford the
Executive a reasonable opportunity to remedy any such breach, (C)
provide the Executive an opportunity to be heard prior to the final
decision to terminate the Executive's employment hereunder for such
"Cause" and (D) make any decision that such "Cause" exists in good
faith;
<PAGE>
(2) the conviction after the exhaustion of all appeals by the
Executive of a felony or the entry of a plea of nolo contendere for
such a felony;
(3) a material violation of the Executive's material
responsibilities as set forth herein which is willful and deliberate;
provided, however, that prior to the determination that "Cause" under
this Paragraph 4(b)(3) has occurred, the Corporation or the Parent
shall (A) provide to the Executive in writing, in reasonable detail,
the reasons for the determination that such "Cause" exists, (B) afford
the Executive a reasonable opportunity to remedy any such breach, (C)
provide the Executive an opportunity to be heard prior to the final
decision to terminate the Executive's employment hereunder for such
"Cause" and (D) make any decision that such "Cause" exists in good
faith; or
(4) a material violation of the Corporation's or the Parent's
significant policies as in effect from time to time, including, by way
of illustration, any violation of the Guidelines for the Conduct of
Research at the Parke-Davis Pharmaceutical Research Division, the
Policies and Procedures for the Receipt and Investigation of
Allegations of Scientific Misconduct, the Business Ethics and
Compliance Manual, the Management Integrity Policy, the Colleague
Agreement or the sexual harassment policy (copies of which shall be
made available to the Executive as soon as practicable after the
Effective Date); provided, however, that prior to the determination
that "Cause" under this Paragraph 4(b)(4) has occurred, the Corporation
or the Parent shall (A) provide to the Executive in writing, in
reasonable detail, the reasons for the determination that such "Cause"
exists, (B) afford the Executive a reasonable opportunity to remedy any
such breach, (C) provide the Executive an opportunity to be heard prior
to the final decision to terminate the Executive's employment hereunder
for such "Cause" and (D) make any decision that such "Cause" exists in
good faith.
(c) Definition of "Disability". The Executive shall be
considered to have a "Disability" if he satisfies the definition set forth in
the disability benefits plan in which he is enrolled at the time of the
determination or if there is no such plan, for a continuous period of six
months, he is unable to perform his duties under this Agreement for reasons of
health, and, in the opinion of a physician appointed by the Corporation, such
disability will continue for a prolonged period of time; provided, however, if
the Executive is able to and returns to his employment within one year of the
Disability, he shall not be deemed "Disabled" under this Agreement.
(d) Definition of "Good Reason". As used herein, "Good Reason"
shall mean the occurrence of any of the following:
(1) a Reassignment, as defined in Paragraph 1(c) hereof, that
constitutes a significant adverse reduction in the Executive's status,
authority, responsibilities or duties, provided, however, that Good
Reason shall not include any change that is a natural consequence of
the Corporation ceasing to be a public company or becoming a wholly
owned subsidiary of Parent, and provided, further, that the Executive
shall have a period of six (6) months after a Reassignment to invoke
the provisions of this clause by providing written notice to the
Corporation and Parent;
<PAGE>
(2) any failure by the Corporation or Parent to pay to the
Executive the Base Salary or other compensation and benefits provided
for herein after failure to cure such nonperformance within thirty (30)
days after written demand by the Executive to the Corporation and the
Parent;
(3) except where expressly approved by the Executive, the
relocation of the Executive's principal place of business from La
Jolla, California that increases the Executive's commute by more than
50 miles; or
(4) any other material breach of this Agreement by the
Corporation or the Parent that continues to exist for thirty (30) days
after written notice thereof has been provided to the Corporation and
the Parent.
Additionally, the Corporation agrees to use its reasonable best efforts not to
cause Good Reason to occur within one (1) year after the Effective Date.
(e) Payments to the Executive upon Termination, Reassignment
of Employment or Good Reason. In the event that the Executive's employment with
the Corporation is terminated, undergoes Reassignment or Good Reason occurs
prior to the expiration of the three-year Term for the reasons provided in
Paragraph 4(a), then the Corporation shall pay to the Executive the following
amounts and shall provide to the Executive the following benefits, as
applicable:
(1) In the event that the Executive's employment hereunder
terminates for Cause, death or Disability, the Corporation shall pay to
the Executive an amount equal to the sum of (i) his accrued but unpaid
Base Salary, plus (ii) his accrued but unpaid vacation pay, plus (iii)
any other compensation payments or benefits (including post-retirement
benefits) which have accrued and are payable in connection with such
termination, plus (iv) his Past-Service Bonus to the extent it had not
been previously paid in accordance with Paragraph 3(b) and to the
extent it is attributable to the period prior to the event of Cause.
(2) In the event that the Executive undergoes a Reassignment,
the provisions hereof regarding compensation, benefits, perquisites
(including, without limitation, stock options and bonuses) and all
other terms and conditions of employment shall continue as though the
Reassignment had not occurred.
(3) In the event that the Executive's employment is designated
as inactive by reason of Disability, the Executive shall receive the
disability benefits under the disability benefit plan in which the
Executive is enrolled at the time of such determination.
(4) In the event that Good Reason exists as defined in
Paragraph 4(d), the Executive shall receive the following:
(i) If such Good Reason occurs and the Executive
resigns from employment under Paragraph 4(a)(5) within one (1) year
from the Effective Date, the Good Reason resignation shall constitute
an involuntary termination of employment. The Executive shall receive a
lump sum payment equal to his Base Salary and most recent bonus
multiplied by the remaining Term of the Agreement. The parties
recognize that under the stock option
<PAGE>
plans of the Corporation, the stock options granted to the Executive
prior to the Effective Date shall become immediately exercisable as of
the date of termination of employment.
(ii) If such Good Reason occurs after a one (1) year
period from the Effective Date, the Executive, after invoking the
provisions of this Paragraph (4)(e)(4)(ii) by providing written notice
to the Corporation, shall remain an employee of the Corporation for the
balance of the three-year Term of the Agreement with such duties
(notwithstanding Paragraphs 1(b) and (c) hereof) to be determined by
mutual agreement between the Corporation and the Executive. The
Executive shall continue to receive salary, compensation and benefits
coverage as though the Good Reason had not occurred; provided, however,
that the annual bonus shall not be less than the prior year's bonus and
there shall not be further stock option grants or salary increases to
the Executive.
5. Protection of the Corporation's and Parent's Interests.
(a) Secrecy. The Executive acknowledges that certain
information not generally known, and proprietary to the Corporation or the
Parent, about the Corporation's or the Parent's, or some third party's (if the
Corporation or the Parent is under a confidentiality obligation to such third
party) products, processes, machines and services, including but not limited to,
information relating to research, development, manufacturing, purchasing,
accounting and finance, data processing, engineering and marketing
("Confidential Information") has been made available to the Executive during his
employment with the Corporation and will continue to be made available to
Executive during the term of employment with the Corporation and the Parent. The
Executive will treat as trade secrets all Confidential Information acquired by
him during the course of employment with the Corporation (either prior to
Effective Date or thereafter) and the Parent, and will not use any such trade
secret for his own benefit nor disclose it to any other third party during the
period of employment with the Corporation or the Parent or thereafter, except as
authorized in writing by the Parent. The Executive will not submit, during the
term of employment with the Corporation or the Parent and thereafter, any
information with respect to the Confidential Information for publication, except
as authorized by the Parent in writing. The Executive will not reveal to the
Corporation or the Parent any confidential information of a third party which
the Executive is prohibited from disclosing to the Corporation or the Parent.
Further, the Executive represents that he has informed the Corporation or the
Parent of all instances in which he has been advised by a former employer that
he is in possession of such confidential information and that he shall
immediately inform the Corporation of all instances in which he is so advised
during his employment with the Corporation or the Parent.
In addition, the Executive will not, during the term of employment with the
Corporation or the Parent, carry on any outside employment, business or other
activity which relates to Confidential Information or his duties at the
Corporation or the Parent, except as may be authorized by the Parent in writing.
The Executive acknowledges that the Confidential Information is of extremely
high value to the Corporation and the Parent and any action or omission on
Executive's part which may lead to the disclosure or misuse of any such
Confidential Information could be of extreme detriment to the Corporation or the
Parent and would cause irreparable harm to the Corporation or the Parent, for
which there would not be an adequate remedy at law. In the event of any breach
of the Executive's obligations set forth in this Paragraph 5, the Corporation
and the Parent shall, in addition to such
<PAGE>
ther remedies as may be available to them at law or in equity, be entitled to
enforce their rights by obtaining injunctive relief against the Executive. The
Executive hereby waives any defense that he might have to the obtaining of such
injunctive relief.
(b) Exclusive Property. The Executive confirms that all
confidential information is and shall remain the exclusive property of the
Corporation or the Parent, as appropriate. All business records, papers and
documents kept or made by the Executive relating to the business of the
Corporation shall be and remain the property of the Corporation. Upon the
termination of his employment with the Corporation or upon the request of the
Corporation at any time, the Executive shall promptly deliver to the
Corporation, and shall not without the consent of the Parent retain copies of,
any written materials not previously made available to the public, or records
and documents made by the Executive or coming into his possession concerning the
business or affairs of the Corporation; provided, however, that subsequent to
any such termination, the Corporation shall provide the Executive with copies
(the cost of which shall be borne by the Executive) of any documents which are
requested by the Executive and which the Executive has determined in good faith
are (i) required to establish a defense to a claim that the Executive has not
complied with his duties hereunder or (ii) necessary to the Executive in order
to comply with applicable law.
(c) Assignment of Developments. During the term of employment
with the Corporation or the Parent, there are certain restrictions on the
Executive's ownership of "Inventions," as herein defined. The term "Inventions"
means any and all ideas, processes, trademarks, service marks, inventions,
technology, computer programs, original works of authorship, designs, formulas,
discoveries, patents, copyrights, and all improvements, rights and claims
related to the foregoing that are conceived, developed or reduced to practice by
the Executive, individually or jointly with others, during employment with the
Corporation or the Parent, except to the extent that California Labor Code
Section 2870 lawfully prohibits the assignment of rights in such Inventions. For
the Executive's information, Section 2870(a) provides:
Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights
in an invention to his or her employer shall not apply to an
invention that the employee developed entirely on his or her own time
without using the employer's equipment, supplies, facilities or trade
secret information, except for those inventions that either: (1)
Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer. (2) Result from
any work performed by the employee for the employer.
The Executive will upon request assign any such Invention to the Corporation
(without charge to the Corporation but at the Corporation's expense). The
Executive will not assert any right under any ideas, processes, trademarks,
service marks, inventions, technology, computer programs, original works of
authorship, designs, formulas, discoveries, patents, copyrights, and all
improvements, rights and claims related to the foregoing as having been made or
acquired by the Executive prior to commencement of his employment with the
Corporation, except as set forth on Exhibit A attached hereto (if any) and any
such item which is not listed on Exhibit A (if any) shall be presumed to have
been developed during the period of employment with the Corporation and shall be
subject to the provisions of Paragraph 5(c) of this Agreement.
<PAGE>
Ideas, processes, trademarks, service marks, inventions, technology, computer
programs, original works of authorship, designs, formulas, discoveries, patents,
copyrights, and all improvements, rights and claims related to the foregoing
shall be presumed to be an Invention if it is conceived, developed, used, sold,
exploited or reduced to practice by the Executive or with the Executive's aid
within one (1) year after termination of employment with the Corporation or the
Parent. The Executive can rebut this presumption if he can prove that the item
is not an Invention. Nothing in this Agreement is intended to expand the scope
of protection provided by Sections 2870 through 2872 of the California Labor
Code.
Except with the prior written approval of the Corporation and Parent, the
Executive will refrain (during the term of employment with the Corporation and
the Parent and thereafter) from submitting for publication or publishing any
information with respect to any Invention.
The Executive will assist the Corporation and the Parent, during the term of
employment with the Corporation and the Parent and thereafter, in the
procurement, maintenance, protection, assignment, and enforcement of the
Corporation's and the Parent's rights with respect to such Inventions,
including, without limitation, patents, certificates of invention, copyrights,
and trademarks. In addition, the Executive will promptly deliver to the
Corporation (without charge to the Corporation but at the Corporation's expense)
executed instruments and do such other acts as may be deemed necessary or
desirable by the Corporation or the Parent with respect to any such Inventions.
It is understood that Executive will take such action whenever the Corporation
or the Parent shall make such request whether during the term of employment with
the Corporation or the Parent or thereafter.
In the event that the Corporation or the Parent is unable to secure the
Executive's signature to any document required for such procurement,
maintenance, protection, assignment or enforcement, the Executive hereby
irrevocably appoints the Corporation as agent and attorney-in-fact to act in his
behalf, to execute and file any such document and to do all other acts to
further such procurement, maintenance, protection, assignment or enforcement
with the same legal force and effect as if executed by the Executive.
(d) Injunctive Relief. Without intending to limit the remedies
available to the Corporation and the Parent, the Executive acknowledges that a
breach of any of the covenants contained in this Paragraph 5 may result in
material irreparable injury to the Corporation and the Parent for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of such a breach or threat
thereof, the Corporation and the Parent shall be entitled to obtain a temporary
restraining order and/or a preliminary or permanent injunction restraining the
Executive from engaging in activities prohibited by this Paragraph 5 or such
other relief as may be required to specifically enforce any of the covenants in
this Paragraph 5. Without intending to limit the remedies available to the
Executive, the Executive shall be entitled to seek specific performance of the
Corporation's obligations under this Agreement.
(e) The Executive shall during the continuance of his
employment comply (and shall use his reasonable efforts to have his spouse or
partner and his minor children comply) with all applicable rules of law, stock
exchange regulations and codes of conduct applicable to employees, officers and
directors of the Corporation and the Parent then currently applicable in
relation to dealings in the shares, debentures and other securities of the
Parent, the Corporation or any of their
<PAGE>
ffiliates or any unpublished share price sensitive information affecting the
securities of any other company with which the Corporation or the Parent has
dealings.
6. Change In Control Of Parent. The Executive shall be covered
by the Parent's Enhanced Severance Plan which provides certain protections in
the event of a "change in control" (as therein defined) of Parent. For purposes
of the Enhanced Severance Plan, the Executive shall be considered to hold a
position in Band 2 throughout the Term of this Agreement without regard to any
Reassignment.
7. Noncompetition. The Executive, the Corporation and the
Parent agree that the Executive's services as an employee are, by reason of his
extensive knowledge of the trade secrets and other confidential information of
the Corporation and access to the trade secrets and other confidential
information of the Corporation and the Parent which shall be made available to
the Executive during his employment with the Corporation and the Parent,
together with the technical skills and experience in the fields of discovery,
development, manufacturing and marketing of human pharmaceuticals targeting
cancer, AIDS and other serious diseases derived through his relationship with
Corporation and the Parent, of a special, unique, extraordinary and intellectual
character, the loss of which by the Corporation and the Parent would not be
capable of adequate compensation in damages. As a result, the Executive agrees
that for a period of two (2) years after the expiration of the Term of this
Agreement (determined without regard to any early termination of such term in
accordance with Paragraph 4 hereof or otherwise), the Executive shall not
engage, either directly or indirectly, in any manner or capacity (excluding
general administrative support), as employee, consultant, director or otherwise,
in any activity that is the same as an activity carried on by Corporation or the
Parent during the last year of the Executive's employment with the Corporation
in support of research, development or commercialization of any pharmaceutical
product that works by the same mechanism as that by which a product of the
Corporation works or is the subject of any research, development or commercial
activities of the Corporation, including, but not limited to, HIV immunogens and
agonists or antagonists of the following: HIV protease, HIV integrase, HIV
reverse transcriptase, HIV RNase H, herpes virus proteases, picornoviral
proteases, matrix metalloproteases, tyrosine kinases, GAR formyl transferase,
cyclin dependent kinases, FK binding proteins and gonadotropin release factors
(a "Restricted Activity"). The Executive agrees that during such two (2) year
period, he shall notify the General Counsel of the Parent at least ten (10) days
prior to the commencement of any business relationship so that the Parent may
determine whether a Restricted Activity is involved if a reasonably informed
person would conclude that there is a potential issue under this Paragraph (7).
8. Indemnification. The Parent and the Corporation agree to
indemnify, defend and hold harmless the Executive from and against any and all
liabilities to which he may be subject as a result of his employment hereunder
(as a result of his service as an officer or director of the Parent or the
Corporation or as an officer or director of any of their respective subsidiaries
or affiliates), as well as the costs, including attorney's and other
professional fees and disbursements, of any legal action brought or threatened
against him as a result of such employment in accordance with the
indemnification policies of the Parent.
9. Successors; Binding Agreement.
(a) Assumption by Successor. The Parent or the Corporation
will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or
<PAGE>
substantially all of the business or assets of the Parent or the Corporation
expressly to assume and to agree to perform this Agreement in the same manner
and to the same extent that the Parent or the Corporation would be required to
perform it if no such succession had taken place; provided, however, that no
such assumption shall relieve the Parent and the Corporation of its obligations
hereunder. As used in this Agreement, the "Parent" and the "Corporation" shall
mean the Parent and the Corporation as hereinbefore defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise.
(b) Enforceability; Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of the Executive (and his personal
representatives and heirs) and the Parent and the Corporation and any
organization which succeeds to substantially all of the business or assets of
the Parent and the Corporation, whether by means of merger, consolidation,
acquisition of all or substantially all of the assets of the Corporation or
otherwise. This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees or other beneficiary.
10. Reimbursement of Legal and Related Expenses. The Parent
agrees to reimburse the Executive for all reasonable legal fees and expenses
incurred by him in connection with the negotiation and preparation of this
Agreement. Furthermore, in the event that any good faith dispute shall arise
between the Executive and the Parent or the Corporation relating to his rights
under this Agreement, the Parent shall pay to the Executive all reasonable legal
fees and expenses incurred in connection with such dispute, unless it is finally
determined that the Executive's position in such dispute was frivolous or
undertaken in bad faith.
11. Nonsolicitation. The Executive recognizes that the
Corporation and the Parent have a substantial investment in their employees and,
therefore, the Executive agrees that he shall not, during the term of employment
with the Corporation or the Parent and for a period of three (3) years
thereafter, directly or indirectly, for the benefit of himself or others,
employ, solicit for employment or in any other way, assist in employing, as an
employee, consultant or otherwise, any employee of the Corporation or the Parent
about whom the Executive acquired knowledge through his employment.
12. Additional Payment.
(a) Gross-Up Payment. Notwithstanding anything herein to the
contrary, if it is determined that any payment made to the Executive, whether
pursuant to the terms of this Agreement or otherwise, would be subject to the
excise tax imposed by Section 4999 of the Code, or any interest or penalties
with respect to such excise tax (such excise tax, together with any interest or
penalties thereon, is herein referred to as an "Excise Tax"), then the Executive
shall be entitled to an additional payment (a "Gross-Up Payment") in an amount
that will place him in the same after-tax economic position that he would have
enjoyed if the Excise Tax had not applied, provided, however, that the
provisions of this Paragraph 12 shall not apply to any Excise Tax attributable
to a resignation without Good Reason from the employment of the Corporation that
occurs within one (1) year after the Effective Date. The amount of the Gross-Up
Payment shall be determined by the Accounting Firm (as hereinafter defined) in
accordance with such formula as the Accounting Firm deems appropriate. The
"Accounting Firm" shall mean a national accounting firm that is designated by
the Parent.
<PAGE>
(b) Determination of Gross-Up Payment. All determinations
required under this Paragraph 12, including whether a Gross-Up Payment is
required, the amount of the payments constituting excess parachute payments, and
the amount of the Gross-Up Payment, shall be made by the Accounting Firm, which
shall provide detailed supporting calculations both to the Executive and the
Parent within fifteen days of the change in control, the date of termination
after the change in control or any other date reasonably requested by the
Executive or the Parent on which a determination under this Paragraph 12 is
necessary or advisable. The Parent shall pay to the Executive the initial
Gross-Up Payment within 5 days of the receipt by the Executive and the Parent of
the Accounting Firm's determination. If the Accounting Firm determines that no
Excise Tax is payable by the Executive, such determination by the Accounting
Firm shall be binding upon the Executive and the Parent. If the initial Gross-Up
Payment is insufficient to cover the amount of the Excise Tax that is ultimately
determined to be owing by the Executive with respect to any payment (hereinafter
an "Underpayment"), the Parent, after exhausting its remedies under Paragraph
12(c) below, shall promptly pay to the Executive an additional Gross-Up Payment
in respect of the Underpayment.
(c) Procedures. The Executive shall notify the Parent in
writing of any claim by the Internal Revenue Service that, if successful, would
require the payment by the Parent of a Gross-Up Payment. Such notice shall be
given as soon as practicable after the Executive knows of such claim and shall
apprise the Parent of the nature of the claim and the date on which the claim is
requested to be paid. The Executive agrees not to pay the claim until the
expiration of the thirty-day period following the date on which the Executive
notifies the Parent, or such shorter period ending on the date the taxes with
respect to such claim are due (the "Notice Period"). If the Parent notifies the
Executive in writing prior to the expiration of the Notice Period that it
desires to contest the claim, the Executive shall: (i) give the Parent any
information reasonably requested by the Parent relating to the claim; (ii) take
such action in connection with the claim as the Parent may reasonably request,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Parent and reasonably
acceptable to the Executive; (iii) cooperate with the Parent in good faith in
contesting the claim; and (iv) permit the Parent to participate in any
proceedings relating to the claim. The Executive shall permit the Parent to
control all proceedings related to the claim and, at its option, permit the
Parent to pursue or forgo any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim. If
requested by the Parent, the Executive agrees either to pay the tax claimed and
sue for a refund or contest the claim in any permissible manner and to prosecute
such contest to a determination before any administrative tribunal, in a court
of initial jurisdiction and in one or more appellate courts as the Parent shall
determine; provided, however, that, if the Parent directs the Executive to pay
such claim and pursue a refund, the Parent shall advance the amount of such
payment to the Executive on an after-tax and interest-free basis (the
"Advance"). The Parent's control of the contest related to the claim shall be
limited to the issues related to the Gross-Up Payment and Executive shall be
entitled to settle or contest, as the case may be, any other issues raised by
the Internal Revenue Service or other taxing authority. If the Parent does not
notify the Executive in writing prior to the end of the Notice Period of its
desire to contest the claim, the Parent shall pay to the Executive an additional
Gross-Up Payment in respect of the excess parachute payments that are the
subject of the claim, provided that the Executive agrees to pay the amount of
the Excise Tax that is the subject of the claim to the applicable taxing
authority in accordance with applicable law.
<PAGE>
(d) Repayments. If, after receipt of the Executive of an
Advance, the Executive becomes entitled to a refund with respect to the claim to
which such Advance relates, the Executive shall pay the Parent the amount of the
refund (together with any interest paid or credited thereon after Taxes
applicable thereto). If, after receipt by the Executive of an Advance, a
determination is made that the Executive shall not be entitled to any refund
with respect to the claim and the Parent does not promptly notify the Executive
of its intent to contest the denial of refund, then the amount of the Advance
shall not be required to be repaid by the Executive and the amount thereof shall
offset the amount of the additional Gross-Up Payment then owing to the
Executive.
(e) Further Assurances. The Parent shall indemnify the
Executive and hold him harmless, on an after-tax basis, from any costs,
expenses, penalties, fines, interest or other liabilities ("Losses") incurred by
him with respect to the exercise by the Parent of any of its rights under this
Paragraph 12, including, without limitation, any Losses related to the Parent's
decision to contest a claim or any imputed income to the Executive resulting
from any Advance or action taken on his behalf by the Parent hereunder. The
Parent shall pay all legal fees and expenses incurred under this Paragraph 12,
and shall promptly reimburse the Executive for the reasonable expenses incurred
by him in good faith in connection with any actions taken by the Parent or
required to be taken by the Executive hereunder. The Parent shall also pay all
of the fees and expenses of the Accounting Firm.
13. Consultancy to the Corporation after Termination of
Employment. If the Executive and the Corporation mutually agree, the Executive
and the Corporation may enter into a consultancy agreement in accordance with
such terms and conditions, and for such remuneration, as shall be mutually
agreed upon at the time. The parties recognize that if a stock option grant to
the Executive so provides then such consultancy shall not be deemed to
constitute a termination of employment for purposes of such stock option grant
(and, accordingly, the option shall continue to vest and be exercisable) until
the Executive ceases to be a consultant to the Corporation.
14. Assignment. Neither party may assign this Agreement or any
of his or its rights, benefits, obligations or duties hereunder to any other
person, firm, corporation or other entity.
<PAGE>
15. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given when personally delivered or on the fourth business day after being placed
in the mail, postage prepaid, addressed to the parties hereto as follows
(provided that notice of change of address shall be deemed given only when
actually received):
As to the Parent: Warner-Lambert Company.
201 Tabor Road
Morris Plains, NJ 07950
Attention: General Counsel
As to the Corporation: Agouron Pharmaceuticals, Inc.
10350 North Torrey Pines Road
LaJolla, CA 92037
Attention: General Counsel
As to the Executive: ________________
c/o Agouron Pharmaceuticals, Inc.
10350 North Torrey Pines Road
LaJolla, CA 92037
With a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attn: Mark Kessel.
The address of any of the parties may be changed from time to time by such party
serving notice upon the other parties.
16. Law Applicable. This Agreement shall be governed by the
laws of Delaware (other than Delaware principles of conflicts of laws). Any
dispute between the parties relating to this Agreement may be heard only in the
federal or state courts of Delaware and both parties hereby submit to the
exclusive jurisdiction of such courts.
17. Entire Agreement; Modification. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes and cancels all prior or contemporaneous oral or written
agreements and understandings between them with respect to the subject matter
hereof. This Agreement may not be changed or modified orally but only by an
instrument in writing signed by the parties hereto, which instrument states that
it is an amendment to this Agreement.
18. Severability. Should any provision of this Agreement or
any part thereof be held invalid or unenforceable, the same shall not affect or
impair any other provision of this Agreement or any part thereof and the
invalidity or unenforceability of any provision of this Agreement shall not have
any effect on or impair the obligations of the Parent, the Corporation or the
Executive.
<PAGE>
19. Rules of Construction. The captions in this Agreement are
for convenience of reference only and in no way define, limit or describe the
scope or intent of any provisions or Paragraphs of this Agreement. All
references in this Agreement to particular Paragraphs are references to the
Paragraphs of this Agreement, unless some other reference is clearly indicated.
References to male gender shall include the female gender, where appropriate.
20. Execution. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, the Parent, the Corporation and the
Executive have executed this Agreement, all as of the day and year first above
written.
WARNER-LAMBERT COMPANY
By:
Name:
Title:
AGOURON PHARMACEUTICALS, INC.
By:
Name:
Title:
EXECUTIVE
By:
Name:
Title:
---------------------
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
balance sheet and the statement of income and is qualified in its entirety by
reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-mos
<FISCAL-YEAR-END> Jun-30-1999
<PERIOD-END> Dec-31-1998
<CASH> 34,547
<SECURITIES> 39,187
<RECEIVABLES> 69,253
<ALLOWANCES> 693
<INVENTORY> 104,419
<CURRENT-ASSETS> 249,859
<PP&E> 76,988
<DEPRECIATION> 30,431
<TOTAL-ASSETS> 371,296
<CURRENT-LIABILITIES> 95,779
<BONDS> 0
0
0
<COMMON> 366,626
<OTHER-SE> (98,348)
<TOTAL-LIABILITY-AND-EQUITY> 371,296
<SALES> 292,063
<TOTAL-REVENUES> 315,646
<CGS> 131,286
<TOTAL-COSTS> 153,783
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 646
<INCOME-PRETAX> 17,071
<INCOME-TAX> 2,561
<INCOME-CONTINUING> 14,510
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 14,510
<EPS-PRIMARY> 0.46
<EPS-DILUTED> 0.43
</TABLE>
