<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
___________________
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
___________
Date of Report (Date of Earliest Event Reported): February 3, 1997
U.S. BIOSCIENCE, INC.
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware
- --------------------------------------------------------------------------------
(State or Other Jurisdiction of Incorporation)
1-10392 23-2460100
- --------------------------------- ------------------------------------
(Commission File Number) (I.R.S. Employer Identification No.)
One Tower Bridge
100 Front Street
West Conshohocken, Pennsylvania 19428
- --------------------------------------------------------- -----------
(Address of Principal Executive Offices) (Zip Code)
(610) 832-0570
- --------------------------------------------------------------------------------
(Registrant's Telephone Number, Including Area Code)
N/A
-------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
================================================================================
<PAGE>
Item 5. Other Events
------------
On February 4, 1997, U.S. Bioscience, Inc. (the "Company") announced
that it had entered into a Stock Purchase Agreement dated as of February 3, 1997
(the "Stock Purchase Agreement") with ALZA Corporation ("ALZA"), whereby the
Company will issue 1,178,882 shares of its Common Stock to ALZA at an aggregate
purchase price of approximately $21.5 million. The Stock Purchase Agreement is
attached hereto as Exhibit 10.25.1 and incorporated herein by reference.
On February 3, 1997, the Company and ALZA also entered into an
amendment ("Amendment No. 2") to their Ethyol(R) (Amifostine) Distribution and
Marketing Collaboration Agreement dated December 12, 1995 (the "Collaboration
Agreement"), whereby the Company agreed to pay, during 1997 and 1998, an
aggregate amount of up to $3.6 million for certain marketing and clinical
expenses in support of Ethyol, its cytoprotective product, which is marketed in
the United States exclusively by ALZA and copromoted by the Company under the
Collaboration Agreement. The Collaboration Agreement is filed as Exhibit 10.25
to the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1995 (the "Form 10-K") and incorporated herein by reference. Amendment No.
2 is attached hereto as Exhibit 10.25.2 and incorporated herein by reference.
The foregoing description is qualified by reference to Exhibit 10.25 to the Form
10-K and Exhibits 10.25.1 and 10.25.2 filed herewith.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
------------------------------------------------------------------
(c) Exhibits.
10.25.1 Stock Purchase Agreement between U.S. Bioscience, Inc. and
ALZA Corporation dated as of February 3, 1997
10.25.2 Amendment No. 2 to Distribution and Marketing Collaboration
Agreement between U.S. Bioscience, Inc. and ALZA Corporation
dated as of February 3, 1997
2
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SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
U.S. BIOSCIENCE, INC.
By: /s/ Robert I. Kriebel
---------------------------------
Name: Robert I. Kriebel
Title: Executive Vice President and Chief
Financial Officer
February 5, 1997
3
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
10.25.1 Stock Purchase Agreement between U.S. Bioscience,
Inc. and ALZA Corporation dated as of February 3,
1997
10.25.2 Amendment No. 2 to Distribution and Marketing
Collaboration Agreement between U.S. Bioscience,
Inc. and ALZA Corporation dated as of February 3,
1997
</TABLE>
4
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EXHIBIT 10.25.1
STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT is made as of the 3rd day of February,
1997, by and between U.S. Bioscience, Inc., a Delaware corporation ("USB"), and
ALZA Corporation, a Delaware corporation ("ALZA").
WHEREAS, ALZA desires to purchase from USB, and USB desires to sell to
ALZA, certain shares of USB's Common Stock, on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants and obligations
expressed herein, and intending to be legally bound, the parties agree as
follows:
1. Purchase and Sale of Stock.
--------------------------
1.1 Sale and Issuance of Common Stock. Subject to the terms and
---------------------------------
conditions of this Agreement, ALZA agrees to purchase and USB agrees to sell and
issue to ALZA One Million, One Hundred Seventy-eight Thousand, Eight Hundred and
eighty-two (1,178,882) shares (the "Shares") of USB's Common Stock, $.01 par
value (the "Common Stock"), for a price per Share equal to One Hundred Twenty
(120) percent of the Average Purchase Price (as defined in Section 1.2)
multiplied by the number of Shares purchased and sold pursuant to this Section
1.1 (the "Purchase Price").
1.2 Average Purchase Price. The "Average Purchase Price" shall be
----------------------
equal to the average of the closing price of one share of Common Stock on the
American Stock Exchange on each of the ten business days next preceding, and not
including, the date of this Agreement.
1.3 Closing. The closing for the purchase and sale of the Shares
-------
(the "Closing") shall take place at the offices of USB, One Tower Bridge, 100
Front Street, West Conshohocken, Pennsylvania 19428, at 2:00 p.m., Philadelphia
time, on the third business day after the date on which the conditions set forth
in Articles 4 and 5 shall be satisfied or duly waived, or if USB and ALZA
mutually agree on a different date, the date upon which they have mutually
agreed (the "Closing Date"). At the Closing USB shall deliver a certificate in
the name of ALZA representing the Shares, against delivery to USB by ALZA of the
Purchase Price by wire transfer in immediately available funds to USB's account
at Corestates Bank, N.A., pursuant to the written wire transfer instructions
previously supplied to ALZA.
2. Representations, Warranties and Covenants of USB. USB hereby
------------------------------------------------
represents and warrants to ALZA that:
<PAGE>
2.1 Organization and Good Standing. USB is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority under its
Certificate of Incorporation and Bylaws to own and operate its properties and
assets and to carry on its business as now conducted.
2.2 Authorization. USB has the corporate power and authority to
-------------
execute, deliver and perform this Agreement and to issue and sell the Shares.
The execution, delivery and performance of this Agreement by USB and the
issuance and delivery of the Shares have been duly authorized by all necessary
corporate action on the part of USB. USB is duly qualified to transact business
and is in good standing in each jurisdiction in which the failure so to qualify
would have a material adverse effect on its business, properties or financial
condition. This Agreement constitutes a valid and legally binding obligation of
USB, enforceable against USB in accordance with its terms, except as such may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of equity.
2.3 Valid Issuance of Shares. The Shares, when issued, sold and
------------------------
delivered in accordance with the terms hereof, will be duly and validly issued,
fully paid and nonassessable, free and clear of any liens, charges, claims or
encumbrances and, except as provided in this Agreement, will not be subject to
restrictions on transfer arising through USB.
2.4 Government Consents.
-------------------
(a) Except for the applicable requirements of the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and any
applicable state securities laws, no consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority, is required on the part of USB,
nor is any waiver, consent or approval of any third party (other than the
American Stock Exchange) required to be obtained by USB, in connection with
USB's valid execution, delivery or performance of this Agreement or the issuance
and sale of the Shares by USB hereunder.
(b) USB will promptly file or cause to be filed with the
Antitrust Division of the United States Department of Justice and the Federal
Trade Commission pursuant to the HSR Act all requisite documents and
notifications required of USB in connection with the transactions contemplated
by this Agreement.
(c) USB shall have made any filings required to be made under
applicable state securities laws in connection with
2
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the transactions contemplated by this Agreement, within the applicable
stipulated statutory period before or after the sale of the Shares hereunder,
and shall have obtained such consents or approvals to issue the Shares as may be
required pursuant to such laws.
2.5 Litigation. There is no action, suit, proceeding or
----------
investigation pending or currently threatened against USB which questions the
validity of this Agreement or the right of USB to enter into it or to consummate
the transactions contemplated hereby. Except as disclosed to ALZA in writing
within the five business days prior to the date of this Agreement or in the SEC
Filings (as defined in Section 2.7), there is no action, suit, proceeding or
investigation pending or currently threatened which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would materially
adversely affect the business, properties, operations, financial condition,
income or business prospects of USB and the Subsidiaries, taken as a whole, as
presently being conducted.
2.6 Compliance with Other Instruments. The execution, delivery and
---------------------------------
performance of this Agreement by USB and the consummation by USB of the
transactions contemplated hereby will not conflict with, or result in any
violation of, or constitute, with or without the passage of time and giving of
notice, either a default under any provision of its Certificate of Incorporation
or Bylaws or of any instrument, judgment, order, writ, decree or contract or an
event which results in the creation of any lien, charge or encumbrance upon any
assets of USB. USB is not in violation of its Certificate of Incorporation or
Bylaws, or in default in the performance or observance of any material provision
of any material instrument or contract to which it is a party or by which it is
bound. No third party has any pre-emptive rights, or rights of first refusal or
first opportunity or similar rights to purchase, or to offer to purchase, all or
any part of the Shares.
2.7 Disclosure. USB has furnished to ALZA (i) USB's Annual Report on
----------
Form 10-K for the fiscal year ended December 31, 1995, amended by Form 10-K/A1
(the "1995 Annual Report"), as filed with the SEC pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); (ii) USB's proxy
statement for its 1996 Annual Meeting of Stockholders; (iii) USB's Form 10/A,
Amendment No. 2, as filed with the SEC pursuant to the Exchange Act; (iv) USB's
reports on Form 10-Q for the fiscal quarters ended March 31, 1996, June 30, 1996
and September 30, 1996 (collectively, the "Quarterly Reports"), as filed with
the SEC pursuant to the Exchange Act, and (v) all other reports and registration
statements, if any, as filed by USB with the SEC since December 31, 1995 (the
documents referred to in clauses (i)-(v) above being referred to hereinafter,
collectively, as the "SEC Filings"). As of their respective dates, the SEC
Filings
3
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(including all documents incorporated by reference therein) did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except, in the case of
any SEC Filing, any statement or omission therein which has been corrected or
otherwise disclosed or updated in a subsequent SEC Filing. Since December 31,
1995, USB has timely filed with the SEC all reports, documents, registration
statements, definitive proxy statements and all other filings required to be
filed with the SEC under the rules and regulations of the SEC, and all such
reports, documents, registration statements, definitive proxy statements and
other filings complied in all material respects with all applicable requirements
of the Securities Act of 1933, as amended (the "1933 Act"), and the Exchange
Act, as applicable. The audited consolidated financial statements of USB
included or incorporated by reference in the 1995 Annual Report and the
unaudited consolidated financial statements contained in the Quarterly Reports
have been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated and with each other, except as may be indicated therein or in the
notes thereto and except that the unaudited financial statements may not contain
all footnotes and adjustments required by United States generally accepted
accounting principles, and fairly present the financial position of USB and its
consolidated subsidiaries as at the dates thereof and the results of its
operations and statements of cash flows for the periods then ended, subject, in
the case of the unaudited interim consolidated financial statements, to normal
year-end adjustments, and recognizing that the results of operations for interim
periods are not necessarily indicative of USB's operations for any other interim
period or full fiscal year.
2.8 Changes. Since December 31, 1995, except as disclosed in the SEC
-------
Filings, there has not been:
(a) any change in the assets, liabilities, financial condition,
operating results or, to the best of USB's knowledge, prospects of USB from that
reflected in the 1995 Annual Report, except changes in the ordinary course of
business that have not been, in the aggregate, materially adverse (and except
that USB expects to continue to incur substantial operating losses, which may be
material);
(b) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the business, properties or
financial condition of USB (and except that USB expects to continue to incur
substantial operating losses, which may be material);
4
<PAGE>
(c) any waiver or compromise by USB of a material right or of a
material debt owed to it;
(d) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by USB, except in the ordinary course
of business and which is not material to the business, properties or financial
condition of USB (as such business is presently conducted);
(e) any material change to a material contract or arrangement
by which USB or any of its assets is bound or subject, or any breach by USB or
waiver by USB of any breach of or under any such contract or amendment (or the
occurrence of any event which would, as result of the passage of time, become or
result in such a breach or waiver);
(f) any sale, assignment or transfer to a third party that is
not an Affiliate (as hereafter defined) of any material patents, trademarks,
copyrights, trade secrets or other intangible assets for compensation which is
less than fair value;
(g) any mortgage, pledge, transfer of a security interest in,
or lien, created by USB, with respect to any of its material properties or
assets, except liens for taxes not yet due or payable;
(h) any declaration, setting aside or payment or other
distribution in respect of any of USB's capital stock;
(i) the occurrence of any event or condition of any type that
has materially and adversely affected the business, properties or financial
condition of USB, or the occurrence of any such event or condition known to USB
that will, solely upon the passage of time, materially and adversely affect the
business, properties or financial condition of USB.
For purposes of this Agreement (except as otherwise defined in Section 6.1(b)
hereof) the term "Affiliate" means any individual or entity directly or
indirectly controlling, controlled by or under common control with, a party to
this Agreement. Without limiting the foregoing, the direct or indirect
ownership of 50% or more of the outstanding voting securities of an entity, or
the right to receive 50% or more of the profits or earnings of an entity, shall
be deemed to constitute control.
2.9 American Stock Exchange Listing. The Common Stock is currently
-------------------------------
listed and traded on the American Stock Exchange and USB knows of no reason or
set of facts which is likely to result in the termination of such listing.
Nothing in this Section 2.9 shall be interpreted to preclude USB from listing
its Common Stock on any other national securities exchange (including without
limitation the Nasdaq National Market of The Nasdaq Stock
5
<PAGE>
Market) in lieu of the American Stock Exchange. USB shall take all actions
reasonably required in order to have the Shares listed on the American Stock
Exchange prior to the Closing.
2.10 Capitalization; Options and Warrants. The authorized capital
------------------------------------
stock of USB consists of 5,000,000 shares of Preferred Stock, par value $.005
per share, none of which are outstanding as of the date hereof and 50,000,000
shares of Common Stock, par value $.01 per share, of which 22,879,934 shares
were issued and outstanding as of December 31, 1996. Except as disclosed in the
SEC Filings, and except for the transactions contemplated by this Agreement,
since December 31, 1995, USB has not granted any options (except for stock
options granted under USB's employee benefit plans, as defined in Rule 405 of
Regulation C under the 1933 Act ("Employee Benefit Plans")) warrants, rights
(including conversion or preemptive rights), or similar right, to any person or
entity to purchase or acquire any rights with respect to any shares of capital
stock of USB, including the Shares. The total number of shares of Common Stock
of USB issued from December 31, 1996 through the date of this Agreement is
26,724. There are no outstanding rights to cause USB to register the securities
held by any person or entity under the Securities Act of 1933 except for any
such rights with respect to securities issuable upon the exercise of options
granted under any USB Employee Benefit Plans.
2.11 Subsidiaries. The only subsidiaries of USB are USB Pharma B.V.,
------------
incorporated in The Netherlands ("USB BV"), USB Pharma Limited, incorporated in
the United Kingdom ("USB UK"), USB Resources, Inc., a Delaware corporation, and
USB Technology, Inc., a Delaware corporation. Each of USB's subsidiaries has
been duly incorporated under the laws of its respective jurisdiction of
incorporation. USB BV and USB UK are the only operating subsidiaries of USB,
and each of such subsidiaries has full corporate power and authority to own or
lease its properties and conduct its business as presently conducted, and is
duly qualified or licensed to transact business in all jurisdictions in which
the character of the property owned or leased or the nature of the business
transacted by it requires such qualification (except where the failure to be so
qualified would not have a material adverse effect on the business, properties,
operations, financial condition, income or business prospects of USB and its
subsidiaries, taken as a whole, as presently being conducted). USB owns 100% of
the shares of each of its subsidiaries, free any clear of any charges or
encumbrances, and there are no outstanding options, warrants, or rights to
purchase any securities of any subsidiaries.
2.12 Principal Products. Except as disclosed to ALZA in writing
------------------
within the five business days prior to the date of this Agreement, there has
been no material adverse change in the status of Hexalen(R), NeuTrexin(R) or
Ethyol(R) as set forth under the
6
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heading "Principal Products" on pages 3-12 of the 1995 Annual Report.
3. Representations, Warranties and Covenants of ALZA. ALZA hereby
-------------------------------------------------
represents and warrants to USB that:
3.1 Authorization. This Agreement constitutes ALZA's valid and
-------------
legally binding obligation, enforceable against ALZA in accordance with its
terms, except as such may be limited by bankruptcy, insolvency or other similar
laws effecting the enforcement of creditors' rights in general or by general
principles of equity. ALZA represents that it has the corporate power and
authority to execute and deliver this Agreement and perform its obligations
hereunder.
3.2 Government Consents.
-------------------
(a) Except for the applicable requirements of the HSR Act, no
consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local
governmental authority is required on the part of ALZA in connection with ALZA's
valid execution, delivery or performance of its obligations under this Agreement
or the purchase of the Shares by ALZA hereunder.
(b) ALZA will promptly file or cause to be filed with the
Antitrust Division of the United States Department of Justice and the Federal
Trade Commission pursuant to the HSR Act all requisite documents and
notifications required of it in connection with the transactions contemplated by
this Agreement.
3.3 Purchase Entirely for Own Account. The Shares will be acquired
---------------------------------
for ALZA's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and ALZA has no present intention of
selling, granting any participation in, or otherwise distributing the same
except in compliance with the registration requirements of the 1933 Act (unless
an exception is available). ALZA does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Shares.
3.4 Disclosure of Information. ALZA has no reason to believe it has
-------------------------
not received all the information that it has requested in connection with its
purchase of the Shares. ALZA has had an opportunity to ask questions and
receive answers from USB regarding the terms and conditions of the offering and
sale of the Shares. The foregoing, however, does not limit or modify the
representations and warranties of USB in Section 2 hereof or the right of ALZA
to rely thereon.
7
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3.5 Investment Experience. ALZA acknowledges that it can bear the
---------------------
economic risk of its investment and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Shares. ALZA also represents it has not been
organized for the purpose of acquiring the Shares.
3.6 Accredited Investor. ALZA is an "accredited investor" within the
-------------------
meaning of SEC Rule 501 of Regulation D, as presently in effect.
3.7 Restricted Securities. ALZA understands that the Shares are
---------------------
"restricted securities" under the federal securities laws and that under such
laws, and applicable regulations such Shares may be resold without registration
under the 1933 Act only in certain limited circumstances. In this connection,
ALZA represents that it is familiar with SEC Rule 144 promulgated under the 1933
Act ("Rule 144"), as presently in effect, and understands the resale limitations
imposed thereby and by the Act.
3.8 Restriction on Offers and Sales of Shares; First Offer Right of
---------------------------------------------------------------
USB.
- ---
(a) ALZA shall not make any disposition of the Shares prior to
the first anniversary of the Closing Date.
(b) During the three-year period commencing on the first
anniversary of the Closing Date (the "First Offer Period"), ALZA shall not make
any disposition of any Shares, whether through broker-dealers who may act as
agent or acquire the Shares as principal, or otherwise, without first giving USB
the right to accept an offer to sell such Shares to USB as provided in this
Section 3.8. If at any time during the First Offer Period ALZA wishes to make a
disposition of any Shares, it shall submit an offer to sell such Shares to USB
(the "Offer"), by telephonic communication with USB's Chairman and Chief
Executive Officer or President and Chief Operating Officer (such telephonic
communication to be confirmed in writing by notice pursuant to Section 7.6),
disclosing the number of Shares proposed to be sold or transferred and the price
at which such Shares are offered to USB. As soon as practicable after receipt of
the Offer, but in no event later than three business days after ALZA makes the
Offer, USB shall have the option to accept the Offer, in whole but not in part,
on the terms offered. In the event that USB does not accept the Offer, such
Shares may be sold by ALZA at any time within 90 days after the expiration of
the Offer for the price (or a higher price) at which such Shares were offered to
USB.
(c) During the First Offer Period, any Shares not sold in
accordance with the applicable terms and within the
8
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applicable time periods provided in Section 3.8(b) shall continue to be subject
to the requirements of a first offer pursuant to Section 3.8(b).
(d) If USB accepts an Offer under Section 3.8(b), the closing of
such purchase shall occur within ten business days after acceptance of the Offer
by USB. Upon such acceptance, USB and ALZA shall be legally obligated to
consummate the purchase contemplated thereby.
(e) The provisions of Sections 3.8(b) and (c) shall lapse and cease
to have any effect at such time as ALZA owns less than 100,000 shares of Common
Stock.
(f) The provisions of this Section 3.8 shall
not apply to:
(i) any transfer by ALZA of Shares to an Affiliate of ALZA,
provided that the transferee is bound by all of the obligations of ALZA under
this Agreement with respect to the Shares;
(ii) any pledge of the Shares by ALZA as part of a pledge of
assets by ALZA solely in connection with a financing by ALZA and/or any
Affiliates of ALZA, or any asset-backed financing or similar financing vehicle;
(iii) any transfer to the successor to the business of ALZA in
a merger, acquisition or change of control of ALZA in which ALZA is not the
surviving entity, provided that the successor is not an Affiliate of ALZA prior
to such merger, acquisition or change of control; or
(iv) any offer or sale of Registrable
Securities pursuant to Section 6.2(a) or (c).
3.9 Further Limitations on Disposition. Without in any way limiting
----------------------------------
the provisions set forth in Section 3.8, ALZA further shall not make any
disposition of all or any portion of the Shares unless and until:
(a) There is then in effect a registration statement under the 1933
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) ALZA shall have satisfied the following conditions: (i) ALZA
shall have notified USB of the proposed disposition and (ii) if reasonably
requested by USB, ALZA shall have furnished USB with an opinion of counsel,
reasonably satisfactory to USB, that such disposition will not require
registration of such Shares under the 1933 Act.
9
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3.10 Legends. It is understood that the certificates evidencing the
-------
Shares may bear the following legends:
(a) "These securities have not been registered under the 1933 Act.
They may not be sold or offered for sale in the absence of a registration
statement in effect with respect to the securities under such Act or an opinion
of counsel reasonably satisfactory to USB that such registration is not
required."
(b) "These securities may not be sold, assigned, transferred, or
in any manner disposed of, except in compliance with the terms of a Stock
Purchase Agreement between USB and ALZA, dated as of February 3, 1997. Such
agreement imposes certain restrictions on transfer of the securities represented
by this certificate. The Secretary of USB will upon written request furnish a
copy of such agreement to the holder hereof without charge."
(c) Any legend required by any applicable state securities laws.
USB shall use its best efforts to cause its transfer agent to take all necessary
actions in order to permit ALZA to make good delivery of all Shares sold in
accordance with the terms of this Agreement, including, without limitation, the
timely removal of the legends from any Shares validly transferred in accordance
with the terms of this Agreement.
4. Conditions of ALZA's Obligations.
--------------------------------
4.1 Conditions of ALZA's Obligations at the Closing. The obligations
-----------------------------------------------
of ALZA to USB at the Closing are subject to the fulfillment on or before the
Closing of each of the following conditions:
(a) Representations and Warranties. The representations and
------------------------------
warranties of USB contained in Section 2 hereof shall be true and correct on and
as of the Closing Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date except for
representations and warranties that speak as of a specific date or time other
than the Closing Date (which need only be true and correct in all material
respects as of such date and time).
(b) Performance. USB shall have performed and complied with all
-----------
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
(c) Compliance Certificate. The Chairman and Chief Executive
----------------------
Officer or President and Chief Operating Officer of USB shall deliver to ALZA at
the Closing a certificate, in the
10
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form attached as Exhibit A hereto, certifying that the conditions specified in
---------
Sections 4.1(a) and (b) hereof have been fulfilled.
(d) Governmental Approvals. Any required governmental approvals
----------------------
described in Section 2.4(c) shall have been obtained by USB.
(e) Waiting Periods. All waiting periods applicable under the HSR
---------------
Act shall have expired or been terminated.
(f) Listing of Shares. The Shares shall have been approved,
-----------------
subject to official notice of issuance, for listing by the American Stock
Exchange.
(g) Tender of Shares. USB shall have issued and tendered for
----------------
delivery to ALZA a certificate representing the Shares, subject only to delivery
of the Purchase Price by ALZA in accordance with Section 1.3.
5. Conditions of USB's Obligations.
-------------------------------
5.1 Conditions of USB's Obligations at the Closing. The obligations of
----------------------------------------------
USB to ALZA at the Closing are subject to the fulfillment on or before the
Closing of each of the following conditions:
(a) Representations and Warranties. The representations and
------------------------------
warranties of ALZA contained in Section 3 hereof shall be true and correct on
and as of the Closing Date with the same effect as though such representations
and warranties had been made on and as of the Closing Date.
(b) Performance. ALZA shall have performed and complied with all
-----------
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
(c) Compliance Certificate. The President or a Vice President of
----------------------
ALZA shall deliver to USB at the Closing a certificate, in the form attached as
Exhibit B hereto, certifying that the conditions specified in Sections 5.1(a)
- ---------
and (b) hereof have been fulfilled.
(d) Waiting Periods. All waiting periods applicable under the HSR
---------------
Act shall have expired or been terminated.
(e) Listing of Shares. The Shares shall have been approved,
-----------------
subject to official notice of issuance, for listing by the American Stock
Exchange.
11
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(f) Payment of Purchase Price. ALZA shall have delivered to USB the
-------------------------
Purchase Price in accordance with Section 1.3, subject only to delivery by USB
of the certificate representing the Shares.
6. Registration Rights.
-------------------
6.1 Definitions. For purposes of this Section 6:
-----------
(a) The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the 1933 Act, and the declaration or
ordering of effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means (1) the Shares, and
(2) any shares of Common Stock of USB issued as (or issuable upon the conversion
or exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in
replacement of, such Shares, excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which its rights under this
Section 6 are not assigned. As to any particular Registrable Securities, once
issued such securities shall cease to be Registrable Securities when (i) a
registration statement with respect to the sale of such securities shall have
become effective under the 1933 Act and such securities shall have been disposed
of in accordance with such registration statement, (ii) such securities shall
have been distributed pursuant to Rule 144, (iii) such securities are
transferred to or become beneficially owned by USB or any "affiliate" (as
defined in Rule 144) thereof (other than any bank or insurance company acting in
the ordinary course of its business), or (iv) such securities shall have ceased
to be outstanding;
(c) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding and the
number of shares of Common Stock issuable pursuant to then exercisable or
convertible securities, which are, in each case, Registrable Securities;
(d) The term "Form S-3" means such form under the 1933 Act as in
effect on the date hereof or any registration form under the 1933 Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by USB with the
SEC;
(e) The term "Managing Underwriter" means one or more nationally
recognized firms of investment bankers selected in accordance with Section
6.2(b).
12
<PAGE>
6.2 Registration.
------------
(a) Shelf Registration. Upon the request of ALZA made not earlier
------------------
than three months prior to the first anniversary of the Closing Date, USB will
prepare and file a shelf registration statement under Rule 415 of the 1933 Act
with the SEC covering the disposition of the Registrable Securities, beginning
at any time after the first anniversary of the Closing Date, in accordance with
the intended methods thereof as specified in writing by ALZA (the "Shelf
Registration"). USB will use its best efforts to have the Shelf Registration
declared effective by the SEC as soon as practicable after the first anniversary
of the Closing Date or at such later time as may be specified by ALZA in a
notice to USB. Notwithstanding the foregoing, the obligations of USB under this
Section 6.2(a) shall terminate on June 30, 2001.
(b) Registration Statement Form. USB may, if permitted by law,
---------------------------
effect the Shelf Registration by filing of a registration statement on Form S-3.
(c) Piggy-back Registration. If (but without any obligation to do
-----------------------
so) USB proposes to register (including for this purpose a registration effected
by USB for any stockholders other than ALZA) any of its Common Stock under the
1933 Act in connection with the public offering of such securities solely for
cash (other than a registration relating solely to the sale of securities to
participants in a USB Employee Benefit Plan or a registration on Form S-4
relating to a business combination involving USB, or any similar successor
form), USB shall, at such time, promptly give ALZA written notice of such
registration. Upon the written request of ALZA given within 20 days after such
notice by USB in accordance with Section 7.6 hereof, USB shall, subject to the
provisions of Section 6.9 hereof cause to be included in such registration and
any underwriting involved therein all of the Registrable Securities that ALZA
has requested to be registered. Notwithstanding the foregoing, the rights of
ALZA under this Section 6.2(c): (i) shall not be applicable in respect of any
registration by USB which shall become effective prior to the first anniversary
of the Closing Date and covers only securities offered by USB; (ii) shall be
applicable upon consummation of the Closing in respect of any registration
proposed by USB which covers any shares of Common Stock being sold by selling
stockholders; and (iii) shall terminate on the third anniversary of the Closing
Date.
6.3 Obligations of USB. With respect to any registration of any
------------------
Registrable Securities pursuant to Section 6.2, USB shall, as expeditiously as
reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its
13
<PAGE>
best efforts to cause such registration statement to become effective. As far
in advance as practical before filing such registration statement or any
supplement or amendment thereto (including any document incorporated therein by
reference) USB will furnish to ALZA and its counsel copies of reasonably
complete drafts of all such documents proposed to be filed (including exhibits),
and ALZA and its counsel shall have the opportunity to comment on any
information that is contained therein or omitted therefrom and USB will make the
changes reasonably requested by ALZA and its counsel with respect to such
information prior to filing any such registration statement.
(b) Prepare and file with the SEC such amendments and supplements to
the registration and the prospectus used in connection with the registration as
may be necessary to comply with the provisions of the 1933 Act with respect to
the disposition of all securities covered by the registration, including at
ALZA's request, any amendments or supplements necessary to reflect any
information regarding ALZA or its plan of distribution, until the earlier of
such time as (i) all of the Shares cease to be Registrable Securities and (ii)
with respect to the Shelf Registration, June 30, 2001 or with respect any USB
registration under Section 6.2(c), the third anniversary of the Closing Date.
(c) Furnish to ALZA such numbers of copies of a prospectus, including
a preliminary prospectus, as then amended or supplemented, in conformity with
the requirements of the 1933 Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by ALZA.
(d) Use its best efforts to register and qualify the securities
covered by the Shelf Registration under such other securities or Blue Sky laws
of such jurisdictions as shall be reasonably requested by ALZA, provided that
USB shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such states or jurisdictions.
(e) Notify ALZA at any time when a prospectus relating thereto is
required to be delivered under the 1933 Act of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and, at
the request of ALZA, as promptly as practicable prepare and furnish ALZA a
reasonable number of copies of a prospectus included in an effective post-
effective amendment or the supplemented prospectus correcting such misstatement
or omission.
14
<PAGE>
(f) Furnish, at the request of ALZA, (i) an opinion of the counsel
representing USB for the purposes of registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to ALZA and (ii) a comfort letter and
subsequent bring-down letter, from the independent certified public accountants
of USB, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any. If the Registrable Securities are being sold in an
underwritten offering pursuant to Section 6.2(c) hereof, such opinion shall be
furnished and dated as of the closing of the sale to the underwriters, such
comfort letter shall be furnished and dated as of the date of the underwriting
agreement and the bring-down letter shall be furnished and dated as of the
closing of the sale to the underwriters. If the Registrable Securities are not
being sold in an underwritten offering, such opinion shall be furnished and
dated as of the date that the registration statement with respect to such
securities becomes effective.
(g) In the event of any underwritten public offering of any
Registrable Securities pursuant to Section 6.2(c), enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter of such offering, provided, however, that ALZA shall
also enter into and perform its obligations under any such agreement.
6.4 Furnish Information. It shall be a condition precedent to the
-------------------
obligations of USB to take any action pursuant to this Section 6 that ALZA meet
the following conditions:
(a) ALZA shall furnish such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required by applicable federal or state securities
laws to effect the registration of the Registrable Securities.
(b) All information specifically with respect to ALZA furnished to
USB by or on behalf of ALZA for use in connection with the preparation of any
registration statement relating to such Registrable Securities shall be true and
correct in all material respects and shall not omit any material fact necessary
to make such information, in light of the circumstances under which it was made,
not misleading.
(c) ALZA will review carefully any registration statement relating to
such Registrable Securities and each amendment or supplement thereto upon
receipt thereof from USB and will promptly advise USB in writing if: (i) the
name and address of ALZA (if required to be disclosed) is not properly set
forth;
15
<PAGE>
(ii) ALZA knows of any arrangements made or to be made by any person, or of any
transaction already effected, to limit or restrict the sale of the Registrable
Securities during the period of the public distribution or to stabilize the
market for the Registrable Securities, other than as disclosed therein; or
(iii) ALZA has entered into any material arrangement with a broker-dealer for
the sale of Registrable Securities through a cross or block trade, special
offering, exchange distribution or secondary distribution or a purchase by a
broker-dealer required to be disclosed in the registration statement that is not
disclosed therein.
(d) ALZA shall distribute in connection with the offering and sale of
the Registrable Securities the prospectus or other offering material permitted
by the 1933 Act and prepared by USB, and only such materials.
(e) ALZA will comply with the provisions of the Exchange Act and the
regulations thereunder, including, without limitation, Rule 10b-7.
(f) To assist USB in qualifying the Registrable Securities for sale
under applicable state securities laws, ALZA will advise USB of each
jurisdiction in which it intends to offer or sell any or all Registrable
Securities, and agrees not to offer or sell any Registrable Securities in any
jurisdiction where the Registrable Securities are not registered or exempt from
registration.
(g) ALZA will inform USB in writing of any and all sales, or other
transfers or dispositions of any Registrable Securities or of any interest
therein within 15 calendar days following each such disposition, such
notification to include the date of the disposition and the number of
Registrable Securities which were disposed of.
(h) In the event of any underwritten public offering of any
Registrable Securities pursuant to Section 6.2(c), ALZA shall enter into and
perform its obligations under an underwriting agreement, in the form agreed upon
by USB and the underwriters selected by it.
6.5 Expenses of Registration. Except as otherwise provided in this
------------------------
Section 6.5, USB shall bear the expenses incurred in connection with the Shelf
Registration and any amendment or supplement thereof, including: all
registration, filing, qualification, printers' and accounting fees and the fees
and disbursements of counsel for USB. The expenses borne by USB pursuant to
this Section 6.5 shall exclude (i) broker fees and commissions and transfer
taxes, if any, in respect of Registrable Securities, which shall be payable by
ALZA; (ii) all out-of-pocket expenses of ALZA's brokers or dealers; and
(iii) all fees
16
<PAGE>
and disbursements of counsel for ALZA or any such brokers or dealers.
6.6 Company Suspension.
------------------
(a) ALZA shall, upon receipt of any written notice from USB of the
happening of any event of the kind described in Section 6.3(e), forthwith
discontinue its disposition of Registrable Securities pursuant to such
registration statement (it being understood that ALZA's right to dispose of
Registrable Securities by other means in accordance with applicable laws shall
not be restricted hereby) until ALZA receives the copies of the supplemented or
amended prospectus and, if so directed by USB, will deliver to USB (at USB's
expense) all copies, other than permanent file copies, then in ALZA's possession
of the prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
(b) ALZA shall upon receipt of any notice from USB that in the good
faith judgment of USB the filing or making of offers and sales pursuant to the
registration statement would require the public disclosure of material
information, the disclosure of which would not otherwise be required at that
time and either compiling such information would require unreasonable effort in
the circumstances or disclosure thereof would have a material adverse effect on
USB, USB shall have the right to suspend such sales or postpone such filing for
a period which shall not exceed 60 days (provided that no such notice may be
given beginning when ALZA notifies USB that marketing efforts have begun by an
underwriter on behalf of ALZA in connection with an offering thereof and ending
when such offering is completed or abandoned); provided, however, that USB may
-------- -------
not use the right provided by this paragraph until 120 days have elapsed from
the end of the most recent suspension or postponement period initiated by USB
and provided, further, however, that immediately following disclosure of such
-------- ------- -------
information or withdrawal or abandonment of the transaction requiring suspension
or postponement USB will make such filing or take such steps as are necessary to
permit such offers and sales, as the case may be. Any suspension under this
Section 6.6(b) will extend, for an amount of time equal to such suspension, the
termination date of any registration rights, or obligations to keep a
registration effective, otherwise provided in this Agreement.
6.7 Indemnification. In the event any Registrable Securities are
---------------
included in a registration statement under this Section 6:
(a) To the extent permitted by law, USB will indemnify and hold
harmless ALZA, and each of its officers and directors, any underwriter (as
defined in the 1933 Act) for ALZA and each person, if any, who controls ALZA or
any such
17
<PAGE>
underwriter within the meaning of the 1933 Act or the Exchange Act
(collectively, the "Indemnified ALZA Parties"), against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the 1933 Act, the Exchange Act or other federal or state law or otherwise,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon a claim by a third party, that is not an
Indemnified ALZA Party, or an Affiliate of any Indemnified ALZA Party, alleging
any of the following statements, omissions or violations (collectively,
"Indemnified Violations"): (i) any untrue statement or alleged untrue statement
of a material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein, or any amendments
or supplements thereto, or any document incident to such registration (such as a
Blue Sky qualification or compliance); (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading; or (iii) any Indemnified Violation
or alleged Indemnified Violation under the 1933 Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the 1933 Act, the
Exchange Act or any state securities law, and USB will reimburse each of the USB
Indemnified Parties for any legal and other expenses reasonably incurred in
connection with defending any such Indemnified Violations; provided, however,
that the indemnity agreement contained in this Section 6.7(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or action
if such settlement is effected without the consent of USB (which consent shall
not be unreasonably withheld), nor shall USB be liable in any such case for any
such loss, claim, damage, liability or action to the extent that it arises out
of or is based upon an Indemnified Violation which occurs in reliance upon and
in conformity with written information furnished expressly for use in connection
with such registration by any of the Indemnified ALZA Parties.
(b) To the extent permitted by law, ALZA will indemnify and hold
harmless USB, each of its officers and directors, each person, if any, who
controls USB within the meaning of the 1933 Act, any underwriter, any other
person selling securities in such registration statement and any controlling
person of any such underwriter or other person (collectively, the "Indemnified
USB Parties"), against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject, under the 1933 Act, the Exchange Act
or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon a
claim by a third party, that is not an Indemnified USB Party, or an Affiliate of
any Indemnified USB Party, arising out of or based upon written information
furnished by any of the Indemnified ALZA Parties expressly for use in connection
with such registration, and ALZA will reimburse
18
<PAGE>
each of the Indemnified USB Parties for any legal and other expenses reasonably
incurred in connection with defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
Section 6.7(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of ALZA (which consent will not be unreasonably withheld); provided,
that in no event shall any indemnity under this Section 6.7(b) exceed ALZA's
proceeds from the offering.
(c) Promptly after receipt by an indemnified party under this Section
6.7 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 6.7, deliver to the
indemnifying party a written notice of the commencement thereof, generally
summarizing the claims, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel, with
the fees and expenses to be paid by the indemnifying party, if representation of
such indemnified party by the counsel retained by the indemnifying party would
be inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 6.7, but the omission
so to deliver written notice to the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than under
this Section 6.7.
(d) The obligations of USB and ALZA under this Section 6.7 shall
survive the completion of any offering of Registrable Securities in a
registration statement under this Section 6, and otherwise.
6.8 Reports Under the Exchange Act. With a view to making available to
------------------------------
ALZA the benefits of Rule 144 and any other rule or regulation of the SEC that
may at any time permit ALZA to sell securities of USB to the public without
registration, USB agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
19
<PAGE>
(b) file with the SEC in a timely manner all reports and other
documents required of USB under the 1933 Act and the Exchange Act; and
(c) furnish to ALZA, so long as ALZA owns any Registrable Securities,
promptly upon request (i) a written statement by USB that it has complied with
the reporting requirements of Rule 144, the 1933 Act and the Exchange Act, (ii)
a copy of the most recent annual or quarterly report of USB and such other
reports and documents so filed by USB, and (iii) such other information as may
be reasonably requested in availing ALZA of any rule or regulation of the SEC
which permits the selling of any such securities without registration.
6.9 Underwriting Requirements. In connection with any proposed
-------------------------
registration as to which ALZA has a right to notice under Section 6.2(c):
(a) USB shall not be required to include in such registration any of
the Registrable Securities unless ALZA accepts the terms of the underwriting
that are agreed upon between USB and the underwriters selected by it; and
(b) if the underwriter for the offering advises USB in writing that
the number of Registrable Securities requested to be included will adversely
affect the success of the offering, USB shall include in such offering only the
quantity of Registrable Securities, if any, as shall be determined as set forth
below:
(i) first, USB shall include in such underwriting all of the
securities USB proposes to sell; and
(ii) then, USB shall include the number of Registrable
Securities and USB securities of other holders that the underwriter advises
will not adversely affect the success of the offering, allocated, pro rata,
among ALZA and the other holders requesting registration, based upon the
number of shares of Common Stock each such person shall have requested USB
to include in the offering.
6.10 Transfer or Assignment of Registration Rights The rights to cause
---------------------------------------------
USB to register Registrable Securities and the obligations of USB pursuant to
this Section 6 may be transferred or assigned by ALZA to any Affiliate of ALZA.
In addition, ALZA shall have the right to transfer or assign its rights under
Section 6.2 (a) and (c) (relating to the Shelf Registration and piggy-back
registration) in connection with a transfer of all of the Shares, or otherwise
upon the reasonable consent of USB, provided that: (i) such transfer is
permitted under this Agreement; and (ii) the transferee enters into a written
agreement whereby the transferee agrees to be bound by
20
<PAGE>
the remaining rights and obligations of ALZA set forth in Sections 6 and 7
hereof (the "AlZA Obligations"). If, in accordance with the preceding
provisions of this Section 6.10, ALZA shall transfer or assign its registration
rights to a single holder (the "New Holder") that is a partnership, trust or
similar pass-through entity, such registration rights may be further transferred
to any partner, beneficiary or related person of the New Holder in connection
with a distribution of Registrable Securities by the New Holder to such partner,
beneficiary or related person; provided that, within a reasonable time after
such transfer, USB is furnished with a written notice of the name and address of
such partner, beneficiary or related person and the Registrable Securities with
respect to which such registration rights are being transferred; and provided,
further, that such transfer shall be effective only if it is registered under
all applicable securities laws or is exempt from registration thereunder and the
transferee agrees in writing to be bound by the ALZA Obligations.
6.11 Amendment of Registration Rights. Any provision of this Section 6
--------------------------------
may be amended or the observance thereof may be waived either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of USB and the holders of a majority of the Registrable
Securities then outstanding. Any amendment or waiver effected in accordance
with this Section 6.11 shall be binding upon each holder of any Registrable
Securities, each future holder of Registrable Securities, ALZA and USB. Nothing
herein shall prevent a holder of Registrable Securities from waiving its
individual rights.
7. Miscellaneous.
-------------
7.1 Survival of Warranties. The warranties and representations of USB
----------------------
and ALZA contained in or made pursuant to this Agreement shall survive until the
third anniversary of the Closing Date and shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of ALZA or USB.
7.2 Successors and Assigns. The terms and conditions of this Agreement
----------------------
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
7.3 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of Delaware as applied to agreements among Delaware
residents entered into and to be performed entirely within Delaware.
21
<PAGE>
7.4 Counterparts. This Agreement shall become binding when any one or
------------
more counterparts hereof, individually or taken together, shall bear the
signatures of USB and ALZA. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, but all of which together shall constitute one
and the same instrument. A facsimile transmission of the signed Agreement shall
be legal and binding on both parties.
7.5 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.6 Notices. Unless otherwise provided, any notice required or
-------
permitted under this Agreement shall be sent by certified mail or courier
service, charges pre-paid, or by facsimile transmission, to the address or
facsimile number specified below:
If to USB:
One Tower Bridge
100 Front Street
West Conshohocken, PA 19428
Fax No.: 610-832-4595
Attention: Chief Executive Officer
With a copy to:
General Counsel
Fax No.: 610-832-4595
If to ALZA:
950 Page Mill Road
P.O. Box 10950
Palo Alto, CA 94303
Fax No.: 415-496-8048
Attention: Senior Vice President and General Counsel
or to such other address or facsimile number as the person may specify in a
notice duly given to the sender as provided herein. A notice will be deemed to
have been given as of the date that is five days after it is deposited in the
United States mail or the date it is delivered by a courier service or, in the
case of facsimile transmission or personal communication, when received.
7.7 Finders' Fee. Each party agrees to indemnify and to hold harmless
------------
the other party from any liability for any commission or compensation in the
nature of a finders' fee (and
22
<PAGE>
the costs and expenses of defending against such liability or asserted
liability) for which the indemnifying party or any of its officers, partners,
employees, or representatives is responsible.
7.8 Market Holdback. ALZA shall not sell, transfer or otherwise dispose
---------------
of (other than to a transferee who agrees to be similarly bound) any Registrable
Securities during any specified holdback period of up to 90 days following, and
14 days preceding, the filing date of a registration statement filed by USB
under the 1933 Act for an offering by USB of Common Stock or other securities
if, (i) the holdback is requested in writing by the managing underwriter of the
offering; (ii) the same restrictions are agreed to by all of the executive
officers and directors of USB; and (iii) ALZA receives written notice of the
holdback in advance of the restricted period, specifying the dates during which
the restrictions will apply. Notwithstanding the foregoing, the holdback
restrictions described in this Section 7.8 shall not apply to sales made by any
person pursuant to and in accordance with the underwritten offering described in
such registration statement filed by USB. If any specified holdback period
hereunder occurs during any period in which ALZA is permitted to sell Shares
pursuant to Section 3.8, the time period within which ALZA must sell its Shares
under Section 3.8 will be tolled until the completion of the holdback period,
and the period of ALZA's registration rights pursuant to this Agreement shall be
extended by the number of days of the holdback period.
7.9 Expenses. The parties shall share equally the filing fee for any
--------
HSR filing required to be made prior to the Closing hereunder and the listing
fee payable to the American Stock Exchange in respect of the Shares. Except as
otherwise provided in the preceding sentence, each party shall pay all costs and
expenses that it incurs with respect to the negotiation, execution, delivery and
performance of this Agreement. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
7.10 Publicity. Neither party, nor any of their respective Affiliates,
---------
shall issue or cause the publication of any press release or other public
announcement with respect to this Agreement or any of the other transactions
contemplated hereby without the prior consultation of the other party, except as
may be required law or by any listing agreement with a national securities
exchange. The parties shall cooperate in determining the format, date and time
of day of the announcement of the execution and terms of this Agreement, giving
consideration to the requirements of all applicable laws and
23
<PAGE>
regulations, and each party will obtain the prior approval by the other party of
any press release to be issued relating to the announcement of the execution of
this Agreement or the Closing hereunder, which prior approval shall not be
unreasonably withheld or delayed. This Section 7.10 shall not apply to the
extent that any disclosure is of information in the public domain other than
through the fault of the disclosing party in violation hereof.
7.11 Amendments and Waivers. This Agreement may not be amended,
----------------------
supplemented or otherwise modified except by an instrument in writing signed by
both parties that specifically refers to this Agreement. Either party hereto
may, only by an instrument in writing, waive compliance by the other party
hereto with any term or provision of this Agreement on the part of such other
party to be performed or complied with. The waiver by a party hereto of a
breach of any term or provision of this Agreement shall not be construed as a
waiver of any subsequent breach. Any amendment or waiver effected in accordance
with this Section 7.11 shall be binding upon each party and its permitted
assigns.
7.12 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
IN WITNESS WHEREOF, the parties, through their duly authorized
officers, have duly executed this Agreement as of the date first above written.
U.S. BIOSCIENCE, INC. ALZA CORPORATION
By: /s/ Philip S. Schein By: /s/ Ernest Mario
------------------------- -------------------------
Title: Chairman & CEO Title: Chief Executive Officer
24
<PAGE>
EXHIBIT A
---------
U.S. BIOSCIENCE, INC.
Officer's Certificate
---------------------
The undersigned being the _____________ of U.S. Bioscience, Inc., a
Delaware corporation ("USB"), pursuant to Section 4.1(c) of that certain Stock
Purchase Agreement, dated as of February 3, 1997, by and between USB and ALZA
Corporation (the "Purchase Agreement") does hereby certify that the conditions
specified in Sections 4.1(a) and (b) of the Agreement have been fulfilled.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
______ day of ______, 1997.
------------------------------------
[Title]
1
<PAGE>
EXHIBIT B
---------
ALZA CORPORATION
Officer's Certificate
---------------------
The undersigned being the _____________ of ALZA Corporation, a
Delaware corporation ("ALZA"), pursuant to Section 5.1(c) of that certain Stock
Purchase Agreement, dated as of February 3, 1997, by and between U.S.
Bioscience, Inc. and ALZA (the "Purchase Agreement") does hereby certify that
the conditions specified in Sections 5.1(a) and (b) of the Agreement have been
fulfilled.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this ______ day of ______, 1997.
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[Title]
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Exhibit 10.25.2
AMENDMENT NO. 2 TO
DISTRIBUTION AND MARKETING COLLABORATION AGREEMENT
This Amendment No. 2 to Ethyol(R) (amifostine) Distribution and Marketing
Collaboration Agreement (the "Amendment") is entered into as of the 3rd day of
February, 1997 between U.S. Bioscience, Inc. ("USB") and ALZA Corporation
("ALZA").
RECITALS
A. USB and ALZA entered into a Distribution and Marketing Collaboration
Agreement (as amended prior to the date hereof, the "Agreement") on the 12th day
of December, 1995.
B. The parties wish to further amend the Agreement as set forth herein.
NOW THEREFORE, the parties agree as follows:
1. Terms. Capitalized terms used in this Amendment shall have the same
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meanings as in the Agreement, unless otherwise defined herein.
2. 1997 and 1998 Marketing and Certain Clinical Expenses. The following
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is added as a new Section 4.4A of the Agreement:
"From time to time during the calendar years 1997 and 1998, at the request
of ALZA, USB will provide financial support for marketing, and clinical
studies, for the PRODUCT, in an aggregate cost of $3.6 million. Such
spending shall be in the form of (i) direct payments by USB to third
parties in connection with such activities; or (ii) reimbursement to ALZA
for out-of-pocket expenditures for such activities, as requested by ALZA.
All expenditures pursuant to this Section 4.4A shall be approved by the
COLLABORATION COMMITTEE in accordance with Article II of this AGREEMENT,
and ALZA shall have the tie-breaking vote. Expenditures pursuant to this
Section 4.4A shall be designated as such, in writing, by ALZA. The parties
expressly acknowledge that financial support that USB is obligated to
provide pursuant to the first sentence of this Section 4.4A is in addition
to, and is not intended to relieve or reduce, the obligations of ALZA to
make certain minimum expenditures with respect to (a) advertising and
promotion expenses pursuant to Section 4.4 of this AGREEMENT and (b)
DEVELOPMENT COSTS for ALZA's RESEARCH DEVELOPMENT program under Section
5.2(b) of this AGREEMENT."
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3. Public Announcements. A new paragraph (d) is added to Section 10.6 of
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the Agreement as follows:
"Subject to Section 10.6(b) of this AGREEMENT, each party shall provide the
other party with drafts of its proposed public statements in the form of
press releases, presentation slides and portions of shareholder mailings,
in each case referring to the PRODUCT, the other party or this AGREEMENT,
at least two business days in advance (unless extenuating circumstances, in
the reasonable discretion of the disclosing party, require less) of their
distribution. Each party shall advise the other, in advance, of any
securities, financial analyst and similar public conferences or meetings at
which such party intends to include information concerning the PRODUCT as a
primary focus of the conference or meeting, and shall provide the other
party, at least two business days in advance (unless extenuating
circumstances, in the reasonable discretion of the disclosing party,
requires less) with the proposed presentation material for review and
comment. Each party shall duly consider comments made by the other party
with respect to any of the public statements, slides, documents and
materials described above. The parties shall use reasonable efforts to
ensure that their respective public statements concerning this AGREEMENT
and/or the PRODUCT are consistent with those of the other party."
4. Except as specifically set forth above, the Agreement remains in full
force and effect as originally executed.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 as of this
3rd day of February, 1997.
ALZA CORPORATION U.S. BIOSCIENCE, INC.
By: /s/ Ernest Mario By: /s/ C. Boyd Clarke
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Title: Chief Executive Officer Title: President and COO
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