SECOND AMENDMENT TO RIGHTS AGREEMENT
Execution
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SECOND
AMENDMENT TO
SECOND
AMENDMENT TO RIGHTS AGREEMENT, dated as of October 31, 2008 (this “Amendment”),
between ImClone Systems Incorporated, a Delaware corporation (the “Company”)
and
Computershare Trust Company, N.A. (formerly known as EquiServe Trust Company,
N.A.) as Rights Agent (the “Rights
Agent”).
WHEREAS,
on February 15, 2002, the Company and the Rights Agent entered into the Rights
Agreement, and on May 4, 2006, the Company and the Rights Agent entered into
the
first amendment to the Rights Agreement (as so amended, the “Rights
Agreement”);
WHEREAS,
pursuant to Section 23 of the Rights Agreement, at any time prior to the
occurrence of a Section 8(a)(ii) Event (as defined in the Rights Agreement),
the
Company may, and the Rights Agent shall if the Company so directs, supplement
or
amend any provision of the Rights Agreement in any respect without the approval
of any holders of Rights (as defined in the Rights Agreement);
WHEREAS,
the board of directors (the “Board”)
of the
Company has approved an Agreement and Plan of Merger (the “Merger
Agreement”)
by and
among the Company, Xxx Xxxxx and Company, an Indiana corporation (“Lilly”),
and
Alaska Acquisition Corporation, a Delaware corporation wholly owned by Lilly
(“Merger
Sub”),
pursuant to which, among other things, Merger Sub shall commence a cash tender
offer (the “Offer”)
to
purchase all of the outstanding shares of the common stock, par value $0.001
per
share (the “Common Stock”) of the Company and the associated Rights (as defined
in the Rights Agreement); and following the consummation of the Offer, Merger
Sub will merge with and into the Company (the “Merger”)
and
the Common Stock shall be converted into the right to receive $70.00 per share
in cash; and
WHEREAS,
the Board has determined that it is in the best interest of the Company and
its
stockholders to amend the Rights Agreement so that in connection with the Merger
Agreement and the transactions contemplated thereby (i) each of Lilly, Merger
Sub or any of their Affiliates and Associates shall not become an Acquiring
Person under the Rights Agreement, (ii) neither a Distribution Date nor a Stock
Acquisition Date shall occur or be deemed to occur, (iii) a Section 8(a)(ii)
Event shall not have occurred, (iv) a Section 10 Event shall not have occurred,
and (v) the Expiration Date shall be immediately prior to the Effective Time
(as
defined in the Merger Agreement).
NOW,
THEREFORE, the parties hereto agree as follows:
Section
1.01. Definitions.
Capitalized terms used but not defined herein that are defined in the Rights
Agreement shall have the meanings ascribed to them in the Rights
Agreement.
Section
1.02. Amendments
to Original Agreement.
(a) The
definition of “Acquiring
Person”
is
hereby amended by: (i) deleting the word “and” from the end of clause (v)
thereof; (ii) adding the word “and” at the end of clause (vi) thereof; and (iii)
adding the following text as clause (vii) thereof:
“(vii) Xxx
Xxxxx
and Company, Alaska Acquisition Corporation, or any of their Affiliates or
Associates, individually or collectively, in connection with: (1) the
approval, adoption, execution or delivery of the Agreement and Plan of Merger
(as it may be amended and supplemented, the “Merger
Agreement”)
among
the Company, Xxx Lilly and Company, an Indiana corporation (“Parent”),
and
Alaska Acquisition Corporation, a Delaware corporation and a wholly-owned
subsidiary of Parent (“Merger
Sub”),
(2) the commencement or consummation of a tender offer by Merger Sub or any
of its Affiliates to purchase all of the shares of Common Stock and the Rights
pursuant to the Merger Agreement (the “Offer”),
(3) the exercise of the option to purchase shares of Common Stock granted
pursuant to Section 1.8 of the Merger Agreement (the “Top-Up
Option”),
(4) the consummation of the merger of Merger Sub or any of its Affiliates
and the Company (the “Merger”),
(5) the approval, execution or delivery of the Support Agreements or any
amendments thereof or (6) the consummation of any of the other transactions
contemplated by the Merger Agreement or the Support Agreements; provided,
however,
that if
the Merger Agreement is terminated prior to the Acceptance Time (as defined
in
the Merger Agreement), this sub-clause (vii) shall be of no further force and
effect; provided,
further,
that
unless approved by the Board, this sub-clause (vii) shall not apply to any
purchases prior to the Acceptance Time by Parent, Merger Sub or any Affiliate
or
Associate of Parent other than pursuant to the Merger Agreement.”
(b) The
definition of “Final
Expiration Date”
is
hereby deleted and replaced in its entirety with the following
text:
““Final
Expiration Date” shall mean the earlier of (i) the close of business on
February 15, 2012 and (ii) the Effective Time, as such term is defined in
the Merger Agreement. In the event that the Final Expiration Date means the
Effective Time, the Company shall promptly notify the Rights Agent after the
occurrence of such Effective Time.”
(c) The
definition of “Distribution
Date”
is
hereby amended to add the following new sentence at the end
thereof:
“Notwithstanding
anything in this Agreement to the contrary, no Distribution Date shall be deemed
to occur or have occurred in connection with (u) the approval, adoption,
execution or delivery of the Merger Agreement, (v) the commencement or
consummation of the Offer, (w) the exercise of the Top-Up Option,
(x) the consummation of the Merger, (y) the approval, execution or
delivery of the Support Agreements or any amendments thereof or (z) the
consummation of any of the other transactions contemplated by the Merger
Agreement or the Support Agreements.”
(d) The
definition of “Stock
Acquisition Date”
is
hereby amended to add the following new sentence at the end
thereof:
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“Notwithstanding
anything in this Agreement to the contrary, no Stock Acquisition Date shall
be
deemed to occur or have occurred in connection with (u) the approval,
adoption, execution or delivery of the Merger Agreement, (v) the
commencement or consummation of the Offer, (w) the exercise of the Top-Up
Option, (x) the consummation of the Merger, (y) the approval,
execution or delivery of the Support Agreements or any amendments thereof or
(z) the consummation of any of the other transactions contemplated by the
Merger Agreement or the Support Agreements.”
(e) Section
1
is hereby amended to add the following definition between the definitions of
“Subsidiary”
and
“Trading
Day”:
““Support
Agreements” means the Tender and Support Agreements, dated on or about
October 6, 2008, between Parent and each of the respective stockholders of
the Company party thereto.”
(f) Section
8(a)(ii) is hereby amended to add the following sentence at the end
thereof:
“notwithstanding
anything in this Agreement to the contrary, a Section 8(a)(ii) Event shall
be deemed not to occur or have occurred, and the provisions of such section
shall not be made or given effect, in connection with (u) the approval,
adoption, execution or delivery of the Merger Agreement, (v) the
commencement or consummation of the Offer, (w) the exercise of the Top-Up
Option, (x) the consummation of the Merger, (y) the approval,
execution or delivery of the Support Agreements or any amendments thereof or
(z) the consummation of any of the other transactions contemplated by the
Merger Agreement or the Support Agreements.”
(g) Section
10(c) is hereby amended by adding the following sentence at the end
thereof:
“Notwithstanding
anything in this Agreement to the contrary, a Section 10 Event shall be
deemed not to occur or have occurred, and the provisions of such section shall
not be made or given effect, in connection with (u) the approval, adoption,
execution or delivery of the Merger Agreement, (v) the commencement or
consummation of the Offer, (w) the exercise of the Top-Up Option,
(x) the consummation of the Merger, (y) the approval, execution or
delivery of the Support Agreements or any amendments thereof or (z) the
consummation of any of the other transactions contemplated by the Merger
Agreement or the Support Agreements.”
(h) The
description of “Acquiring Person” contained in Exhibit B is hereby amended by:
(i) deleting the word “and” from the end of clause (vi) thereof; and (ii) adding
the following text at the end thereof:
3
“,
and
(vii) Xxx Xxxxx and Company, Alaska Acquisition Corporation or any Affiliate
or
Associate of Xxx Lilly and Company, in connection with (u) the approval,
adoption, execution or delivery of the Merger Agreement, (v) the commencement
or
consummation of the Offer, (w) the exercise of the Top-Up Option, (x) the
consummation of the Merger, (y) the approval, execution or delivery of the
Support Agreements or any amendments thereof or (z) the consummation of any
of
the other transactions contemplated by the Merger Agreement or the Support
Agreements; provided,
however,
that if
the Merger Agreement is terminated prior to the Acceptance Time (as defined
in
the Merger Agreement), this sub-clause (vii) shall be of no further force and
effect; provided,
further,
that
unless approved by the Board of Directors of the Company, this sub-clause (vii)
shall not apply to any purchases prior to the Acceptance Time by Xxx Xxxxx
and
Company, Alaska Acquisition Corporation or any Affiliate or Associate of Xxx
Lilly and Company other than pursuant to the Merger Agreement.”
Section
1.03. No
Implied Amendments.
Except
as herein amended, all of the terms of the Rights Agreement shall remain in
full
force and effect and are ratified in all respects. On and after the
effectiveness of this Amendment, each reference in the Rights Agreement to
“this
Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and each
reference to the Rights Agreement in any other agreements, documents or
instruments executed and delivered pursuant to the Rights Agreement, shall
mean
and be a reference to the Rights Agreement, as amended by this
Amendment.
Section
1.04. Governing
Law.
This
Amendment shall be governed by and interpreted and enforced in accordance with
the terms of the Rights Agreement.
Section
1.05. Counterparts.
This
Amendment may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute one and the same instrument.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
above written.
IMCLONE SYSTEMS INCORPORATED | ||
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By: | /s/ Xxxxxxx X. Xxxxx | |
Name: Xxxxxxx
X. Xxxxx
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Title: Vice
President, Deputy General Counsel
000
Xxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
General Counsel
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COMPUTERSHARE TRUST COMPANY, N.A. | ||
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By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx
X. Xxxxxx
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Title: Managing
Director
000
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention:
Relationship Management
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