FORM OF
AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT ("Affiliate Agreement") is being executed and
delivered as of February 28, 1999 by _____________ ("Stockholder") in favor of
and for the benefit of GILEAD SCIENCES, INC. a Delaware corporation ("Parent").
RECITALS
A. Stockholder is a stockholder of ,is an officer of, NEXSTAR
PHARMACEUTICALS, INC., a Delaware corporation (the "Company").
B. Parent, the Company and Gazelle Acquisition Sub, Inc., a wholly
owned subsidiary of Parent ("Merger Sub"), have entered into an Agreement and
Plan of Merger dated as of February 28, 1999 (the "Merger Agreement"),
providing for the merger of Merger Sub into the Company (the "Merger"). The
Merger Agreement contemplates that, upon consummation of the Merger, (i)
holders of shares of common stock of the Company will receive shares of
common stock of Parent ("Parent Common Stock") in exchange for their shares
of common stock of the Company and (ii) the Company will become a wholly
owned subsidiary of Parent. It is accordingly contemplated that Stockholder
will receive shares of Parent Common Stock in the Merger.
C. Stockholder understands that the Parent Common Stock being issued
in the Merger will be issued pursuant to a registration statement on Form
S-4, and that Stockholder may be deemed an "affiliate" of the Company (i) as
such term is defined for purposes of paragraphs (c) and (d) of Rule 145 under
the Securities Act of 1933, as amended (the "Securities Act"), and (ii) for
purposes of determining Parent's eligibility to account for the Merger as a
"pooling of interests" under Accounting Series Releases 130 and 135, as
amended, of the Securities and Exchange Commission (the "SEC"), and under
other applicable "pooling of interests" accounting requirements.
AGREEMENT
Stockholder, intending to be legally bound, agrees as follows:
1. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder represents
and warrants to Parent as follows:
(a) Stockholder is the holder and "beneficial owner" (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of the
number of outstanding shares of common stock of the Company set forth beneath
Stockholder's signature on the signature page hereof (the "Company Shares"),
and Stockholder has good and valid title to the Company Shares, free and
clear of any liens, pledges, security interests, adverse claims, equities,
options, proxies, charges, encumbrances or restrictions of any nature.
Stockholder has the sole right to vote and to dispose of the Company Shares.
(b) Stockholder is the holder of options to purchase the number of
shares of common stock of the Company set forth beneath Stockholder's
signature on the signature page hereof (the "Company Options"), and
Stockholder has good and valid title to the Company Options, free and clear
of any liens, pledges, security interests, adverse claims, equities, options,
proxies, charges, encumbrances or restrictions of any nature.
(c) Stockholder does not own, of record or beneficially, directly
or indirectly, any securities of the Company other than the Company Shares
and the Company Options.
(d) Stockholder has carefully read this Affiliate Agreement and,
to the extent Stockholder felt necessary, has discussed with counsel the
limitations imposed on Stockholder's ability to sell, transfer or otherwise
dispose of the Company Shares, the Company Options, the shares of Parent
Common Stock that Stockholder is to receive in the Merger (the "Parent
Shares") and the options to purchase shares of Parent Common Stock that
Stockholder is to receive in respect of the Company Options in connection
with the Merger. Stockholder fully understands the limitations that this
Affiliate Agreement places upon Stockholder's ability to sell, transfer or
otherwise dispose of securities of the Company and securities of Parent.
(e) Stockholder understands that the representations, warranties
and covenants set forth in this Affiliate Agreement will be relied upon by
Parent and its counsel and accountants for purposes of determining Parent's
eligibility to account for the Merger as a "pooling of interests" and for
purposes of determining whether Parent should proceed with the Merger.
2. PROHIBITIONS AGAINST TRANSFER.
(a) Stockholder agrees that, during the period from the date
hereof through the date on which financial results covering at least 30 days
of post-Merger combined operations of Parent and the Company have been
published by Parent (within the meaning of the applicable "pooling of
interests" accounting requirements):
(i) Stockholder shall not sell, transfer or otherwise dispose
of, or reduce Stockholder's interest in or risk relating to, (A) any
capital stock of the Company (including the Company Shares and any
additional shares of capital stock of the Company acquired by Stockholder,
whether upon exercise of a stock option or otherwise), except pursuant to
and upon consummation of the Merger, or (B) any option or other right to
purchase any shares of capital stock of the Company, except pursuant to and
upon consummation of the Merger; and
(ii) Stockholder shall not sell, transfer or otherwise dispose
of, or reduce Stockholder's interest in or risk relating to, (A) any shares
of capital stock of Parent (including the Parent Shares and any additional
shares of capital stock of Parent acquired by Stockholder, whether upon
exercise of a stock option or otherwise), or (B) any option or other right
to purchase any shares of capital stock of Parent;
it being understood, in each case, that Stockholder may exercise any options
to acquire capital stock of the Company in accordance with the plan and
agreement pursuant to which it was issued
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and in a manner that will not jeopardize the "pooling of interest" accounting
treatment. Parent agrees to notify Stockholder upon the publication of such
results.
(b) Without limiting the generality or the effect of the restrictions
set forth in Section 2(a), Stockholder agrees that Stockholder shall not effect
any sale, transfer or other disposition of any Parent Shares unless:
(i) such sale, transfer or other disposition is effected
pursuant to an effective registration statement under the Securities Act;
(ii) such sale, transfer or other disposition is made in
conformity with the requirements of Rule 145 under the Securities Act, as
evidenced by a broker's letter and a representation letter executed by
Stockholder (satisfactory in form and content to Parent) stating that such
requirements have been met;
(iii) counsel reasonably satisfactory to Parent shall have
advised Parent in a written opinion letter (satisfactory in form and
content to Parent), upon which Parent may rely, that such sale, transfer or
other disposition will be exempt from the registration requirements of the
Securities Act; or
(iv) an authorized representative of the SEC shall have
rendered written advice to Stockholder to the effect that the SEC would
take no action, or that the staff of the SEC would not recommend that the
SEC take action, with respect to such sale, transfer or other disposition,
and a copy of such written advice and all other related communications with
the SEC shall have been delivered to Parent.
3. STOP TRANSFER INSTRUCTIONS; LEGEND.
Stockholder acknowledges and agrees that (a) stop transfer
instructions will be given to Parent's transfer agent with respect to the
Parent Shares, and (b) each certificate representing any of such shares that
are held in certificated form shall bear a legend identical or similar in
effect to the following legend (together with any other legend or legends
required by applicable state securities laws or otherwise):
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145(d) OF THE SECURITIES ACT OF 1933
APPLIES AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SUCH RULE AND IN ACCORDANCE WITH THE TERMS OF AN
AFFILIATE AGREEMENT DATED AS OF FEBRUARY 28, 1999, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL OFFICES OF THE GILEAD SCIENCES,
INC."
4. INDEPENDENCE OF OBLIGATIONS. The covenants and obligations of
Stockholder set forth in this Affiliate Agreement shall be construed as
independent of any other agreement or
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arrangement between Stockholder, on the one hand, and the Company or Parent,
on the other. The existence of any claim or cause of action by Stockholder
against the Company or Parent shall not constitute a defense to the
enforcement of any of such covenants or obligations against Stockholder.
5. SPECIFIC PERFORMANCE. Stockholder agrees that in the event of any
breach or threatened breach by Stockholder of any covenant, obligation or
other provision contained in this Affiliate Agreement, Parent shall be
entitled (in addition to any other remedy that may be available to Parent)
to: (a) a decree or order of specific performance or mandamus to enforce the
observance and performance of such covenant, obligation or other provision;
and (b) an injunction restraining such breach or threatened breach.
Stockholder further agrees that neither Parent nor any other person or entity
shall be required to obtain, furnish or post any bond or similar instrument
in connection with or as a condition to obtaining any remedy referred to in
this Section 5, and Stockholder irrevocably waives any right Stockholder may
have to require the obtaining, furnishing or posting of any such bond or
similar instrument.
6. OTHER AGREEMENTS. Nothing in this Affiliate Agreement shall limit
any of the rights or remedies of Parent under the Merger Agreement, or any of
the rights or remedies of Parent or any of the obligations of Stockholder
under any agreement between Stockholder and Parent or any certificate or
instrument executed by Stockholder in favor of Parent; and nothing in the
Merger Agreement or in any other agreement, certificate or instrument shall
limit any of the rights or remedies of Parent or any of the obligations of
Stockholder under this Affiliate Agreement.
7. NOTICES. Any notice or other communication required or permitted
to be delivered to Stockholder or Parent under this Affiliate Agreement shall
be in writing and shall be deemed properly delivered, given and received when
delivered to the address or facsimile telephone number set forth beneath the
name of such party below (or to such other address or facsimile telephone
number as such party shall have specified in a written notice given to the
other party):
IF TO PARENT:
Gilead Sciences, Inc
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
IF TO STOCKHOLDER:
--------------------------
--------------------------
Attn: --------------------
Fax: (___)----------------
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8. SEVERABILITY. If any provision of this Affiliate Agreement or any
part of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to
the fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c)
the invalidity or unenforceability of such provision or part thereof shall
not affect the validity or enforceability of the remainder of such provision
or the validity or enforceability of any other provision of this Affiliate
Agreement. Each provision of this Affiliate Agreement is separable from every
other provision of this Affiliate Agreement, and each part of each provision
of this Affiliate Agreement is separable from every other part of such
provision.
9. APPLICABLE LAW; JURISDICTION. THIS AFFILIATE AGREEMENT IS MADE
UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. In any action
between the parties hereto, whether arising out of this Affiliate Agreement
or otherwise, (a) each of the parties irrevocably and unconditionally
consents and submits to the jurisdiction and venue of the state and federal
courts located in Delaware; (b) if any such action is commenced in a state
court, then, subject to applicable law, no party shall object to the removal
of such action to any federal court located in Delaware; (c) each of the
parties irrevocably waives the right to trial by jury; and (d) each of the
parties irrevocably consents to service of process by first class certified
mail, return receipt requested, postage prepaid, to the address at which such
party is to receive notice in accordance with Section 7.
10. WAIVER; TERMINATION. No failure on the part of Parent to exercise
any power, right, privilege or remedy under this Affiliate Agreement, and no
delay on the part of Parent in exercising any power, right, privilege or
remedy under this Affiliate Agreement, shall operate as a waiver of such
power, right, privilege or remedy; and no single or partial exercise of any
such power, right, privilege or remedy shall preclude any other or further
exercise thereof or of any other power, right, privilege or remedy. Parent
shall not be deemed to have waived any claim arising out of this Affiliate
Agreement, or any power, right, privilege or remedy under this Affiliate
Agreement, unless the waiver of such claim, power, right, privilege or remedy
is expressly set forth in a written instrument duly executed and delivered on
behalf of Parent; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given. If the Merger
Agreement is terminated, this Affiliate Agreement shall thereupon terminate.
11. ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Affiliate Agreement or the enforcement of any provision of
this Affiliate Agreement is brought against Stockholder, the prevailing party
shall be entitled to recover reasonable attorneys' fees, costs and
disbursements (in addition to any other relief to which the prevailing party
may be entitled).
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12. CAPTIONS. The captions contained in this Affiliate Agreement are
for convenience of reference only, shall not be deemed to be a part of this
Affiliate Agreement and shall not be referred to in connection with the
construction or interpretation of this Affiliate Agreement.
13. FURTHER ASSURANCES. Stockholder shall execute and/or cause to be
delivered to Parent such instruments and other documents and shall take such
other actions as Parent may reasonably request to effectuate the intent and
purposes of this Affiliate Agreement.
14. ENTIRE AGREEMENT. This Affiliate Agreement and any Voting
Agreement or Registration Rights Agreement between Stockholder and Parent
collectively set forth the entire understanding of Parent and Stockholder
relating to the subject matter hereof and thereof and supersede all other
prior agreements and understandings between Parent and Stockholder relating
to the subject matter hereof and thereof.
15. NON-EXCLUSIVITY. The rights and remedies of Parent under this
Affiliate Agreement are not exclusive of or limited by any other rights or
remedies which it may have, whether at law, in equity, by contract or
otherwise, all of which shall be cumulative (and not alternative). Without
limiting the generality of the foregoing, the rights and remedies of Parent
under this Affiliate Agreement, and the obligations and liabilities of
Stockholder under this Affiliate Agreement, are in addition to their
respective rights, remedies, obligations and liabilities under common law
requirements and under all applicable statutes, rules and regulations.
Nothing in this Affiliate Agreement shall limit any of Stockholder's
obligations, or the rights or remedies of Parent, under any Voting Agreement
between Parent and Stockholder; and nothing in any such Voting Agreement
shall limit any of Stockholder's obligations, or any of the rights or
remedies of Parent, under this Affiliate Agreement.
16. AMENDMENTS. This Affiliate Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of Parent and Stockholder.
17. ASSIGNMENT. This Affiliate Agreement and all obligations of
Stockholder hereunder are personal to Stockholder and may not be transferred
or delegated by Stockholder at any time. Parent may freely assign any or all
of its rights under this Affiliate Agreement, in whole or in part, to any
other person or entity without obtaining the consent or approval of
Stockholder.
18. BINDING NATURE. Subject to Section 16, this Affiliate Agreement
will inure to the benefit of Parent and its successors and assigns and will
be binding upon Stockholder and Stockholder's representatives, executors,
administrators, estate, heirs, successors and assigns.
19. EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Affiliate Agreement shall be paid by the
party incurring such costs and expenses.
20. SURVIVAL. Each of the representations, warranties, covenants and
obligations contained in this Affiliate Agreement shall survive the
consummation of the Merger.
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21. CONSTRUCTION.
(a) For purposes of this Affiliate Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Affiliate Agreement.
(c) As used in this Affiliate Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this
Affiliate Agreement to "Sections" and "Exhibits" are intended to refer to
Sections of this Affiliate Agreement and Exhibits to this Affiliate Agreement.
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Stockholder has executed this Affiliate Agreement on _____________, 1999.
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(SIGNATURE)
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(Print Name)
NUMBER OF OUTSTANDING SHARES OF
COMMON STOCK OF THE COMPANY
HELD BY STOCKHOLDER:
--------------------------------
NUMBER SHARES OF COMMON STOCK OF THE COMPANY
SUBJECT TO OPTIONS HELD BY STOCKHOLDER:
--------------------------------
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