EXHIBIT 7.1
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STOCK AND WARRANT PURCHASE AGREEMENT
BY AND BETWEEN
GUILFORD PHARMACEUTICALS INC.
AND
AMGEN INC.
Dated as of October 1, 1997
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TABLE OF CONTENTS
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PAGE
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SECTION 1. Definitions..................................... 1
SECTION 2. Issuance and Sale of Securities................. 3
SECTION 3. Closing......................................... 3
(a) Closing........................................ 3
(b) Documents to be Delivered...................... 3
SECTION 4. Representations and Warranties of the Company... 3
(a) Organization and Standing...................... 3
(b) Capitalization................................. 3
(c) Issuance of Shares............................. 4
(d) Authority for Agreement........................ 4
(e) Governmental Consents.......................... 5
(f) Litigation..................................... 5
(g) SEC Filings; Financial Statements.............. 5
(h) No Undisclosed Liabilities..................... 6
(i) Absence of Changes............................. 6
(j) Intellectual Property.......................... 6
(k) No Defaults.................................... 6
(l) Offerings...................................... 6
(m) Brokers........................................ 7
SECTION 5. Representations and Warranties of Buyer......... 7
(a) Investment..................................... 7
(b) Authority...................................... 7
(c) Accredited Investor............................ 7
(d) Brokers........................................ 7
SECTION 6. Closing Conditions.............................. 7
(a) Conditions to Buyer's Obligation to Close...... 7
(b) Conditions to Company's Obligation to Close.... 8
SECTION 7. Standstill...................................... 8
SECTION 8. Survival and Indemnification.................... 8
(a) Survival of Representations, Etc............... 8
(b) Indemnification................................ 9
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SECTION 9. Miscellaneous................................... 9
(a) Legend......................................... 9
(b) Successors and Assigns......................... 9
(c) Notices........................................ 9
(d) Choice of Law.................................. 10
(e) Entire Agreement; Amendments and Waivers....... 10
(f) Counterparts................................... 11
(g) Invalidity..................................... 11
(h) Headings....................................... 11
(i) Expenses....................................... 11
(j) Specific Enforcement........................... 11
(k) Further Assurances............................. 11
TABLE OF SCHEDULES
Schedule 4(b) - Capitalization
Schedule 4(j) - Intellectual Property
ii
STOCK AND WARRANT PURCHASE AGREEMENT
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THIS STOCK AND WARRANT PURCHASE AGREEMENT (the "Agreement") is dated as of
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October 1, 1997 and entered into by and between GUILFORD PHARMACEUTICALS INC., a
Delaware corporation (the "Company") and AMGEN INC., a Delaware corporation
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("Buyer").
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RECITALS
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WHEREAS, the Company, GPI NIL Holdings, Inc., a Delaware corporation and
wholly-owned subsidiary of the Company, and Buyer have entered into a
collaboration with respect to the research, development and commercialization of
certain small molecule neuroimmunophilin compounds, and have executed a Binding
Term Sheet dated as of August 20, 1997 relating thereto (the "Binding Term
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Sheet").
WHEREAS, in connection with the foregoing, Buyer has agreed to purchase
from the Company, and the Company has agreed to sell to Buyer, (i) 640,095
shares of the Company's Common Stock (the "Shares"), and (ii) a Warrant for the
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purchase of 700,000 Shares of Common Stock of the Company (the "Warrant," and
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together with the Shares, the "Securities"). The Warrant is attached hereto as
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Exhibit A. Subject to adjustment as set forth in the Warrant, the Warrant shall
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be exercisable for 700,000 shares of Common Stock (individually, a "Warrant
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Share" and collectively, the "Warrant Shares"); and
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WHEREAS, Buyer and the Company desire to provide for the foregoing
purchases and sales and to establish various rights and obligations in
connection therewith;
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions.
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(a) As used in this Agreement, the terms below shall have the following
meanings:
"Charter Documents" shall mean the Amended and Restated Certificate of
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Incorporation and the Amended and Restated Bylaws of the Company, each as
amended to date and presently in effect.
"Closing Date" shall mean October 1, 1997.
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"Collateral Agreements" shall mean the Binding Term Sheet, the Warrant and
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the Registration Rights Agreement.
"Commission" shall mean the Securities and Exchange Commission.
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"Common Stock" shall mean the shares of the Common Stock, $.01 par value
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per share, of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the Commission thereunder.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
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1976, as amended.
"Person" shall mean any individual, firm, corporation, partnership, limited
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liability company, trust, unincorporated organization or other entity or a
government or agency or political subdivision thereof, and shall include any
successor (by merger or otherwise) of such Person.
"Preferred Stock" shall mean the shares of undesignated Preferred Stock,
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par value $.01 per share, of the Company.
"Registration Rights Agreement" shall mean the Registration Rights
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Agreement to be entered into as of the date hereof by and between the Company
and Buyer.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
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rules and regulations of the Commission thereunder.
"Series A Preferred Stock" shall mean the shares of the Series A Junior
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Participating Preferred Stock, par value $.01 per share, of the Company.
(b) Other Defined Terms. The following terms shall have the meanings
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defined for such terms in the Sections set forth below:
Term Section
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Binding Term Sheet Preamble
Buyer Preamble
Closing 3(a)
Company Preamble
Company SEC Reports 4(g)
Securities Recitals
Securities Purchase Price 2
Shares Recitals
Warrant Recitals
Warrant Agreement Recitals
Warrant Share Recitals
Warrant Shares Recitals
SECTION 2. Issuance and Sale of Securities.
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Upon the terms set forth herein, the Company hereby agrees to issue
and sell to Buyer, and Buyer hereby agrees to purchase the Securities for an
aggregate purchase price of $20 Million (the "Securities Purchase Price").
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Buyer hereby subscribes for and agrees to purchase from the Company, in
immediately available funds, (i) 640,095 Shares of the Company's Common Stock
for a cash purchase price of $15 million (calculated by reference to the closing
prices of the Company's Common Stock for the 20 consecutive trading days ending
on and including August 19, 1997 amounting to $23.434 per share), and (ii) a
Warrant to purchase 700,000 shares of the Company's Common Stock for a cash
purchase price of $5 million.
SECTION 3. Closing.
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(a) Closing. The closing of the transactions contemplated hereby (the
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"Closing") will take place on the Closing Date at 9:00 a.m. local time at the
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offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ or at such other time or place as the parties hereto shall mutually agree.
(b) Documents to be Delivered. At the Closing, the Company shall
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deliver to Buyer, against payment in full of the Securities Purchase Price by
wire transfer in same day funds to the account(s) the Company shall have
designated in writing at least one business day prior to the Closing Date, the
agreements, certificates and documents as set forth in Section 6.
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SECTION 4. Representations and Warranties of the Company.
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The Company hereby represents and warrants to Buyer as of the date
hereof as follows:
(a) Organization and Standing. The Company is a corporation duly
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organized and validly existing under the laws of the State of Delaware and has
requisite corporate power and authority to own and lease its property, to
conduct its business as presently conducted and as proposed to be conducted by
it and to execute and deliver this Agreement and each of the Collateral
Agreements. The Company has requisite corporate power and authority to perform
and to carry out the transactions contemplated by this Agreement and each of the
Collateral Agreements. The Company is qualified to do business and in good
standing in Delaware and in each jurisdiction where it does business or owns
property except those jurisdictions where the failure to be so qualified and in
good standing would not have a material adverse effect on its business or
property. The Company has furnished to Buyer true and complete copies of the
Charter Documents.
(b) Capitalization. As of the date hereof, the authorized capital
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stock of the Company consists of the following: (i) 40,000,000 shares of Common
Stock, of which 18,700,335 shares are issued and outstanding as of September 26,
1997, (ii) 4,700,000 shares of Preferred Stock, of which no shares are issued
and outstanding, and (iii) 300,000 shares of Series A Preferred Stock, of which
no shares are issued and outstanding. All of the issued and outstanding shares
of Common Stock, have been duly authorized, and are validly issued and are fully
paid and non-assessable. Except as set forth in the Company SEC Reports or on
Schedule 4(b) hereto or as provided in this Agreement, there is not, nor upon
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the consummation of the
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transactions contemplated herein, will there be, (i) any subscription, warrant,
option, convertible security or other right (contingent or otherwise) to
purchase or acquire any shares of capital stock of the Company, (ii) any
commitment of the Company to issue any subscription, warrant, option,
convertible security or other such right or to issue or distribute to holders of
any shares of its capital stock any evidences of indebtedness or assets of the
Company, or (iii) any obligation of the Company (contingent or otherwise) to
purchase, redeem or otherwise acquire any shares of its capital stock or any
interest therein or to pay any dividend or make any other distribution in
respect thereof. Except as set forth in the Company SEC Reports or on Schedule
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4(b) or as provided in this Agreement, no Person is entitled to, nor upon the
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consummation of the transactions contemplated herein will any Person be entitled
to, (i) any preemptive or similar right with respect to the issuance of any
capital stock of the Company, or (ii) any rights with respect to the
registration of any capital stock of the Company under the Securities Act. In
addition, as of September 26, 1997, a total of 2,892,546 shares of Common Stock
were reserved for issuance under outstanding options, warrants and exchange
rights.
(c) Issuance of Shares. The issuance, sale and delivery of the
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Securities in accordance with this Agreement, and the issuance and delivery of
the Warrant Shares issuable upon exercise of the Warrant, have been duly
authorized and reserved for issuance, as the case may be, by all necessary
corporate action on the part of the Company (no consent or approval of the
stockholders of the Company being required by law, by the Charter Documents, or
the qualification criteria of the Nasdaq National Market), and the Securities
when so issued, sold and delivered against payment therefor in accordance with
the provisions of this Agreement, and the Warrant Shares issuable upon exercise
of the Warrant, when issued upon such exercise, will be (i) duly and validly
issued, fully paid and non-assessable and not subject to preemptive or any other
similar rights of the shareholders of the Company or others and free, at time of
issuance, of all restrictions on transfer subject to restrictions on transfer
resulting from applicable federal and state securities laws and (ii) free and
clear of all liens, charges, restrictions, claims and encumbrances.
(d) Authority for Agreement. The execution, delivery and performance
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by the Company of this Agreement and each of the Collateral Agreements have been
duly authorized by all necessary corporate action, and this Agreement and each
of the Collateral Agreements have been duly executed and delivered and
constitute valid and binding obligations of the Company enforceable in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws in effect relating to or affecting the rights of creditors generally and
subject, as to enforceability, to general principles of equity. Except as
disclosed in the Binding Term Sheet, the execution and delivery by the Company
of this Agreement and each of the Collateral Agreements, and the consummation by
the Company of the transactions contemplated hereby and thereby (including,
without limitation, the issuance and sale of the Securities and the Warrant
Shares), will not violate any provision of law to which the Company is subject
and will not in any material respect conflict with or result in any breach of
any of the terms, conditions or provisions of, or constitute a default under, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties, assets or outstanding capital stock of the Company,
the Charter Documents, or any indenture, lease, agreement or other instrument to
which the Company is a party or by which it or any of its properties is bound,
or any decree, judgment, order, statute, rule
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or regulation applicable to the Company; provided, however, that no such
conflict, without respect to materiality, will cause any provision of this
Agreement or each of the Collateral Agreements to become invalid or
unenforceable.
(e) Governmental Consents. No consent, approval, order or
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authorization of, or registration, qualification, designation, declaration or
filing with, any governmental or regulatory authority is required on the part of
the Company in connection with the execution and delivery of this Agreement and
each of the Collateral Agreements, and the consummation of the transactions
contemplated hereby and thereby (including, without limitation, the offer,
issue, sale and delivery of the Securities and the Warrant Shares issuable upon
exercise of the Warrant), except such filings as shall have been made or
consents or approvals obtained prior to and which shall be effective on and as
of the Closing. Based in part on the representations made by Buyer in Section 5
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of this Agreement, the offer and sale of the Securities to Buyer will be in
compliance with applicable federal and state securities laws.
(f) Litigation. Except as set forth in the Company SEC Reports and
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the Binding Term Sheet, there are no material actions, suits, proceedings or
investigations, either at law or in equity, or before any commission or other
administrative authority in any United States or foreign jurisdiction, of any
kind now pending or, to the best of the Company's knowledge, threatened or
proposed involving the Company or any of its properties or assets or which
question the validity or legality of the transactions contemplated hereby, or to
the best of the Company's knowledge, against its employees or consultants with
respect to the Company's business.
(g) SEC Filings; Financial Statements.
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(i) The Company has filed all forms, reports and documents required
to be filed with the Commission under the Exchange Act since January 1, 1995
(collectively, the "Company SEC Reports"). The Company SEC Reports (i) were
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prepared in all material respects in accordance with the requirements of the
Exchange Act, and (ii) did not at the time they were filed (or if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing) contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(ii) Each of the financial statements (including, in each case, any
related notes thereto) contained in the Company SEC Reports was prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as may be indicated in the notes
thereto), and each was complete and correct in all material respects and
presented fairly in all material respects presented the financial position of
the Company as at the respective dates thereof and the results of its operations
and cash flows for the periods indicated, except that the unaudited interim
financial statements were or are subject to normal and recurring year-end
adjustments which were not or are not expected to be material in amount.
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(h) No Undisclosed Liabilities. The Company does not have any
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material liabilities (absolute, accrued, contingent or otherwise) except
liabilities (i) in the aggregate adequately provided for or otherwise disclosed
in the Company's balance sheet (including any related notes thereto) for the
fiscal quarter ended June 30, 1997 included in the Company's Quarterly Report
on Form 10-Q for the fiscal quarter ended June 30, 1997 or in the Company SEC
Reports, or (ii) incurred since June 30, 1997 in the ordinary course of
business.
(i) Absence of Changes. Since June 30, 1997, there has been no
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material adverse change in the financial condition, business, or assets of the
Company.
(j) Intellectual Property.
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(i) To the best of the Company's knowledge, it has done nothing to
compromise in any material respect the secrecy, confidentiality or value of any
of its trade secrets, know-how, inventions, prototypes, designs, processes or
technical data required to conduct its business as now conducted or as proposed
to be conducted. The Company will continue to take reasonable security measures
in the future, as it presently is doing, to protect the secrecy,
confidentiality, and value of all of its trade secrets, know-how, inventions,
prototypes, designs, processes, and technical data important to the conduct of
its business.
(ii) Except as set forth in the Company SEC Reports and Schedule 4(j)
hereto, the Company has not granted rights to manufacture, produce, license,
market or sell its products to any other Person and is not bound by any
agreement that affects the Company's exclusive right to develop, manufacture,
distribute, market or sell its products.
(k) No Defaults. The Company is not in default (i) under its Charter
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Documents, or any indenture, mortgage, lease agreement, contract, purchase order
or other instrument to which it is a party or by which it or any of its property
is bound or affected, or (ii) with respect to any order, writ, injunction or
decree of any court of any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, which defaults, either singly or in the aggregate, would have a
material adverse effect on the Company. At the time of the Closing, to the best
knowledge of the Company, there will exist no condition, event or act which
constitutes, or which after notice, lapse of time or both would constitute, a
material default under any of the foregoing which, either singly or in the
aggregate, would have a material adverse effect on the Company.
(l) Offerings. Except as contemplated by this Agreement or as
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otherwise disclosed by the Company to Buyer, the Company has no current plans or
intentions, within six months from the date hereof, to issue any shares of its
capital stock or any other securities or any securities convertible or
exchangeable into shares of its capital stock or any other securities, except
for securities issuable under approved employee benefit plans.
(m) Brokers. No broker, finder or investment banker is entitled to
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any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Company.
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SECTION 5. Representations and Warranties of Buyer.
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Buyer hereby represents and warrants to the Company as of the date
hereof as follows:
(a) Investment. Buyer is acquiring the Securities, and the Warrant
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Shares into which the Warrants may be exercised, for its own account (and not
for the account of others) for investment and not with a view to any
distribution thereof within the meaning of the Securities Act.
(b) Authority. Buyer has requisite power and authority to execute,
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deliver and perform this Agreement and each of the Collateral Agreements in
accordance with their respective terms. The execution, delivery and performance
by Buyer of this Agreement and each of the Collateral Agreements have been duly
authorized by all necessary corporate action, and this Agreement and each of the
Collateral Agreements have been duly executed and delivered and constitute valid
and binding obligations of Buyer enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws in effect relating to or
affecting the rights of creditors generally and subject, as to enforceability,
to general principles of equity. The execution and delivery by Buyer of this
Agreement and each of the Collateral Agreements, and the consummation by Buyer
of the transactions contemplated hereby and thereby, will not violate any
provision of law to which Buyer is subject and will not conflict with or result
in any breach of any of the terms, conditions or provisions of, or constitute a
default under, or result in the creation of any lien, security interest, charge
or encumbrance upon any of the properties, assets or outstanding capital stock
of Buyer, the Charter Documents, or any indenture, lease, agreement or other
instrument to which Buyer is a party or by which it or any of its properties is
bound, or any decree, judgment, order, statute, rule or regulation applicable to
Buyer. Buyer represents that it has not been organized, reorganized or
recapitalized specifically for the purpose of investing in the Company.
(c) Accredited Investor. Buyer is an Accredited Investor within the
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definition set forth in Rule 501(a) under the Securities Act.
(d) Brokers. No broker, finder or investment banker is entitled to
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any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Buyer.
SECTION 6. Closing Conditions.
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(a) Conditions to Buyer's Obligation to Close. The obligation of
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Buyer to consummate the transactions contemplated hereby are subject to the
satisfaction, on or prior to the Closing Date, of the delivery by the Company of
the following: (i) certificates for the Shares in such denominations as Buyer
has requested, dated the Closing Date and registered in the name of Buyer or its
nominees as specified by Buyer, (ii) the Warrant, dated the Closing Date and
registered in the name of Buyer or its nominees as specified by Buyer, (iii)
each of the Collateral Agreements, which shall have been duly authorized,
executed and delivered by the Company and
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shall be in full force and effect, (iv) an officers' certificate certifying as
to the incumbency of the officers of the Company executing this Agreement and
the Collateral Agreements and the resolutions of the Board of Directors
authorizing the execution, delivery and performance of the Agreement and the
Collateral Agreements, (v) a Certificate of Good Standing (long-form if
available), and (vi) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., counsel to the
Company, in form and substance reasonably satisfactory to Buyer, and attached
hereto as Exhibit A, with such exceptions and qualifications as are customary
and reasonable under the law of the applicable jurisdiction. In rendering such
opinion, such counsel may rely upon certificates of public officers and, as
matters of fact, upon certificates of duly authorized representatives of the
Company; provided, that copies of such certificates shall be contemporaneously
delivered to Buyer.
(b) Conditions to Company's Obligation to Close. The obligation of
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the Company to consummate the transactions contemplated hereby is subject to the
satisfaction, on or prior to the Closing Date, of the payment by Buyer of the
Securities Purchase Price as provided for in Section 2 hereof.
SECTION 7. Standstill.
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During the ten-year period commencing on the date hereof, without the
written consent of the Company, Buyer shall not directly or indirectly acquire
more than 10% of the Company's then outstanding capital stock. Notwithstanding
the foregoing, if any person or group (for the purposes of this Section 7,
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"person" and "group" shall have the respective meanings ascribed to such terms
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pursuant to Regulation 13D adopted by the Commission under the Exchange Act, as
in effect on the date hereof), directly or indirectly acquires more than 10% of
the Company's then outstanding capital stock, Buyer may acquire up to the same
percentage acquired by such person or group; provided, however, Buyer is not and
does not become a member of such group. If any person or group, directly or
indirectly, makes an offer to tender or exchange for the Company's capital
stock, Buyer shall be relieved of its obligations hereunder; provided, however,
that Buyer shall not be so relieved if Buyer solicits, encourages or
participates in any such offer to tender or exchange. Nothing herein shall
prohibit Buyer from making any proposal to the Company's Board of Directors.
SECTION 8. Survival and Indemnification.
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(a) Survival of Representations, Etc. All representations and
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warranties contained herein shall survive the execution and delivery of this
Agreement and the Collateral Agreements and the closing of the transactions
contemplated hereby and thereby until the first anniversary of the date of this
Agreement (or until final resolution of any claim or action arising from the
untruth, inaccuracy or breach of any such representation and warranty, if notice
of such untruth, inaccuracy or breach was given prior to such first anniversary)
without regard to any investigation made by any of the parties hereto. All
statements contained in any certificate or other instrument delivered by the
Company pursuant to this Agreement and denominated as representations and
warranties shall constitute representations and warranties by the Company under
this Agreement. All agreements and covenants contained herein shall survive
indefinitely until, by their respective terms, they are no longer operative.
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(b) Indemnification. The parties shall, with respect to the
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representations, warranties, covenants and agreements made herein or in
certificates or other instruments delivered in connection therewith, indemnify,
defend and hold the non-breaching party harmless against all liability, together
with all reasonable costs and expenses related thereto (including legal and
accounting fees and expenses), arising from the untruth, inaccuracy or breach of
any such representations, warranties, covenants or agreements of the breaching
party.
SECTION 9. Miscellaneous.
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(a) Legend. (i) Each certificate representing Shares sold pursuant
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to the provisions hereof, if deemed advisable by the Company, shall bear the
following legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL SUCH
SHARES ARE REGISTERED UNDER SUCH ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED."
(ii) Buyer hereby agrees not to offer, sell or otherwise transfer
the Shares in violation of the foregoing legend or applicable state and federal
securities laws.
(iii) The Company shall have no obligation to register a transfer
of the Shares on its books, unless the conditions specified in the legend in
subclause (i) above are satisfied, and the Company may instruct its transfer
agent not to register the transfer of any of the Shares unless the conditions
specified in the foregoing legend are satisfied.
(b) Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors and
assigns, and no other Person shall have any right, benefit or obligation
hereunder.
(c) Notices. Unless otherwise provided herein, any notice, request,
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instruction or other document to be given hereunder by any party to the others
shall be in writing and delivered in person or by courier, or by facsimile
transmission (with receipt confirmed) or mailed by certified mail, postage
prepaid, return receipt requested (such mailed notice to be effective on the
date of such receipt is acknowledged), as follows:
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If to the Company:
Guilford Pharmaceuticals Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Secretary
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer:
Amgen Inc.
Amgen Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Secretary
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
(d) Choice of Law. This Agreement shall be construed, interpreted and
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the rights of the parties determined in accordance with the laws of the State of
Delaware (excluding choice of law provisions).
(e) Entire Agreement; Amendments and Waivers. This Agreement,
----------------------------------------
together with the Collateral Agreements, constitutes the entire agreement among
the parties pertaining to the subject matter hereof and thereof and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral
or written, of the parties. No supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. No waiver of any of the provisions of this Agreement shall be deemed
or shall
10
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
(f) Counterparts. This Agreement may be executed in one or more
------------
counter parts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) Invalidity. In the event that any one or more of the provisions
----------
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other such instrument.
(h) Headings. The headings of the Articles and Sections herein are
--------
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
(i) Expenses. Each of the Company and Buyer will each be liable for
--------
its own costs and expenses incurred in connection with the negotiation,
preparation, execution and performance of this Agreement.
(j) Specific Enforcement. The Company and Buyer acknowledge and agree
--------------------
that if any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached, irreparable damage would
occur and it would be extremely impracticable and difficult to measure damages.
Accordingly, in addition to any other rights and remedies to which the parties
may be entitled by law or equity, the parties shall be entitled to an injunction
or injunctions to prevent or cure breaches of the provisions of this Agreement
and to enforce specifically the terms and provisions hereof, and the parties
expressly waive (i) the defense that a remedy in damages will be adequate and
(ii) any requirement, in an action for specific performance, for the posting of
a bond.
(k) Further Assurances. On and after the date hereof, the Company and
------------------
Buyer will take all appropriate action and execute all documents, instruments or
conveyances of any kind which may be reasonably necessary to carry out any of
the provisions hereof.
[Signature Page to follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or have
caused this Agreement to be duly executed on their respective behalf by their
respective officers thereunto duly authorized, as of the day and year first
above written.
GUILFORD PHARMACEUTICALS INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
--------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
Title: President and Chief Executive Officer
AMGEN INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President, General Counsel and
Secretary
S-1
