THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR"); (2) AGREES THAT IT
WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF
THE NOTE EVIDENCED HEREBY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY
OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE EXCEPT (A) TO
IMMUNEX CORPORATION OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A DENOMINATION OF NO LESS THAN
$250,000 THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO IMMUNEX CORPORATION (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS ATTACHED AS ANNEX A),
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (3) AGREES THAT
PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(E)
ABOVE), IT WILL FURNISH TO IMMUNEX CORPORATION SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. IN CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY
PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE NOTE
EVIDENCED HEREBY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO IMMUNEX CORPORATION. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR OR IS A PURCHASER WHO IS NOT A U.S. PERSON,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO IMMUNEX CORPORATION, SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE
TRANSFER OF THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE (2)(E) ABOVE OR UPON
ANY TRANSFER OF THE NOTE EVIDENCED HEREBY UNDER RULE 144 UNDER THE SECURITIES
ACT (OR ANY SUCCESSOR PROVISION). AS USED HEREIN, THE TERMS "UNITED STATES"
AND "UNITED STATES PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
-2-
IMMUNEX CORPORATION
3% CONVERTIBLE SUBORDINATED NOTE DUE 2006
No.: A-1 $450,000,000
Immunex Corporation, a corporation duly organized and validly
existing under the laws of the State of Washington (herein called the
"Company", which term includes any successor corporation), for value received
hereby promises to pay to American Home Products Corporation or registered
assigns, the principal sum of Four Hundred Fifty Million Dollars
($450,000,000) on May 20, 2006, at the office or agency of the Company, in
such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts,
and to pay interest, semi-annually on April 30 and October 31 of each year,
commencing October 31, 1999, on said principal sum at said office or agency,
in like coin or currency, at the rate per annum of 3%, until payment of said
principal sum has been made. Interest on the Note will accrue from the most
recent date to which interest has been paid, or if no interest has been paid,
from May 20, 1999. The interest payable on the Note on any April 30 or
October 31 will be paid to the Person entitled thereto as it appears in the
Note register at the close of business on the record date, which shall be the
April 15 or October 15 (whether or not a Business Day) next preceding such
April 30 or October 31. Interest may, at the option of the Company, be paid
either (i) by check mailed to the registered address of such Person or (ii)
by transfer to an account maintained by such Person located in the United
States. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
Reference is made to the further provisions of this Note set forth
on the reverse hereof, including, without limitation, provisions
subordinating the payment of principal of and premium, if any, and interest
on the Note to the prior payment in full of all Senior Indebtedness, as
defined herein, and provisions giving the holder of this Note the right to
convert this Note into Common Stock of the Company on the terms and subject
to the limitations referred to on the reverse hereof. Such further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Note shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be construed in accordance
with and governed by the laws of said State.
-3-
IN WITNESS WHEREOF, Immunex Corporation has caused this Note to be
duly executed under its corporate seal to be affixed or imported hereon.
IMMUNEX CORPORATION
By:
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Name:
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Title:
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Attest:
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Name:
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Title:
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Dated:
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-4-
[FORM OF REVERSE SIDE OF NOTE]
IMMUNEX CORPORATION
3% CONVERTIBLE SUBORDINATED NOTE DUE 2006
This Note is duly authorized and designated as its 3% Convertible
Subordinated Note due 2006 (herein called the "Note"), limited to the
aggregate principal amount of $450,000,000 pursuant to the Note Purchase
Agreement dated as of May 20, 1999 (herein called the "Note Purchase
Agreement"), between the Company and the Purchaser.
In case an Event of Default, as defined in the Note Purchase
Agreement, shall have occurred and be continuing, the principal of, premium,
if any, and accrued interest on the Note may be declared, and upon said
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Note Purchase Agreement.
The Purchaser may waive any past default or Event of Default and its
consequences. Any such consent or waiver by the Purchaser shall be conclusive
and binding upon such holder and upon all future holders and owners of this
Note and any Notes which may be issued in exchange or substitute hereof,
irrespective of whether or not any notation thereof is made upon this Note or
such other Notes.
The indebtedness evidenced by the Note is, to the extent and in the
manner provided in the Note Purchase Agreement, expressly subordinate and
subject in right of payment to the prior payment in full of all Senior
Indebtedness of the Company, as defined in the Note Purchase Agreement,
whether outstanding at the date of the Note Purchase Agreement or thereafter
incurred, and this Note is issued subject to the provisions of the Note
Purchase Agreement with respect to such subordination. Each holder of this
Note, by accepting the same, agrees to and shall be bound by such provisions
and authorizes the Company on its behalf to take such action as may be
necessary or appropriate to effectuate the subordination so provided and
appoints the Company his attorney-in-fact for such purpose.
No reference herein to the Note Purchase Agreement and no provision
of this Note or of the Note Purchase Agreement shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Note at the place, at the
respective times, at the rate and in the coin or currency herein prescribed.
-5-
Interest on the Note shall be computed on the basis of a three
hundred sixty (360) day year.
At the office or agency of the Company referred to on the face
hereof, and in the manner and subject to the limitations provided in the Note
Purchase Agreement, without payment of any service charge but with payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or exchange of the Note, the Note
may be exchanged for a like aggregate principal amount of Notes of other
authorized denominations, which may in turn be exchanged for a like aggregate
principal amount of Notes of other authorized denominations.
The Note is not subject to redemption through the operation of any
sinking fund.
Subject to the provisions of the Note Purchase Agreement, the holder
hereof has the right, at its option, at any time through the close of
business on the final maturity date of the Note to convert the principal
hereof or any portion of such principal in an amount of at least $50,000,000,
and in increments of $1,000,000 in excess thereof, into that number of shares
of the Company's Common Stock, as said shares shall be constituted at the
date of conversion, obtained by dividing the principal amount of this Note or
portion thereof to be converted, by $173.68 (the "Conversion Price") or such
Conversion Price as adjusted from time to time as provided in the Note
Purchase Agreement, upon surrender of this Note, together with a conversion
notice as provided in the Note Purchase Agreement, to the Company at the
office or agency of the Company maintained for that purpose in accordance
with the terms of the Note Purchase Agreement, and, unless the shares
issuable on conversion are to be issued in the same name as this Note, duly
endorsed by, or accompanied by instruments of transfer in form satisfactory
to the Company duly executed by, the holder or by his duly authorized
attorney. No adjustment in respect of interest or dividends will be made upon
any conversion. No fractional shares will be issued upon any conversion, but
an adjustment in cash will be made, as provided in the Note Purchase
Agreement, in respect of any fraction of a share which would otherwise be
issuable upon the surrender of any Note or Notes for conversion. If the Note
(or any portion thereof) shall be surrendered for conversion pursuant to the
Note Purchase Agreement, the Company shall make an additional payment in a
check or cash to the Purchaser or holder thereof for accrued and unpaid
interest, if any, to, but excluding, the date of such conversion.
Upon due presentment for registration of transfer of this Note at
the office or agency of the Company maintained for that purpose in accordance
with the terms of the Note Purchase Agreement, a new Note or Notes of
authorized denominations for
-6-
an equal aggregate principal amount will be issued to the transferee in
exchange thereof; subject to the limitations provided in the Note Purchase
Agreement, without charge.
The Company, any paying agent, any conversion agent and any Note
registrar may deem and treat the registered holder hereof as the absolute
owner of this Note (whether or not this note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by
anyone other than the Company or any Note registrar), for the purpose of
receiving payment hereof, or on account hereof, for the conversion hereof and
for all other purposes, and neither the Company nor any Trustee nor any other
authenticating agent nor any paying agent nor other conversion agent nor any
Note registrar shall be affected by any notice to the contrary. All payments
made to or upon the order of such registered holder shall, to the extent of
the sum or sums paid, satisfy and discharge liability for monies payable on
this Note.
No recourse for the payment of the principal of or any premium or
interest on this Note, or for any claim based hereon or otherwise in respect
hereof; and no recourse under or upon any obligation, covenant or agreement
of the Company in the Note Purchase Agreement or in any Note, or because of
the creation of any indebtedness represented thereby, shall be had against
any incorporator, shareholder, employee, agent, officer or director or
subsidiary, as such, past, present or future, of the Company or of any
successor Person, either directly or through the Company or any successor
Person, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
This Note shall be deemed to be a contract made under the laws of
New York, and for all purposes shall be construed in accordance with the laws
of New York.
Terms used in this Note and defined in the Note Purchase Agreement
are used herein as therein defined.
-7-
CONVERSION NOTICE
TO: IMMUNEX CORPORATION
The undersigned registered owner of this Note hereby irrevocably
exercises the option to convert this Note into shares of Common Stock of
Immunex Corporation in accordance with the terms of the Note Purchase
Agreement referred to in this Note, and directs that the shares issuable and
deliverable upon such conversion, together with any check in payment for
fractional shares and any Notes representing any unconverted principal amount
hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares or any portion of this
Note not converted are to be issued in the name of a person other than the
undersigned, the undersigned will provide the appropriate information below.
Any amount required to be paid to the undersigned on account of interest
accompanies this Note.
Dated:
Signature(s)
Fill in the registration of shares of Common Stock to be issued, and
Notes to be delivered, other than to and in the name of the registered holder:
(Name)
(Street Address)
-8-
(City, State and Zip Code)
Please print name and address
Principal amount to be converted
(if less than all): $
Social Security or Other Taxpayer
Identification Number:
-9-
ASSIGNMENT
For value received _________________________ hereby sell(s),
assign(s) and transfer(s) unto _________________________ (Please insert
social security or other Taxpayer Identification Number of assignee) the
within Note, and hereby irrevocably constitutes and appoints
_________________________ attorney to transfer the said Note on the books of
the Company, with full power of substitution in the premises.
In connection with any transfer of the Note within the United States
or to, or for the account of, U.S. persons (in each case as defined in
Regulation S under the Securities Act) and within the period prior to the
expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision) (other than any
transfer pursuant to a registration statement that has been declared
effective under the Securities Act), the undersigned confirms that such Note
is being transferred:
To Immunex Corporation or a subsidiary thereof; or
Pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended, in a
minimum denomination of $100,000; or
Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended;
and unless the box below is checked, the undersigned confirms that such Note
is not being transferred to an "affiliate" of the Company as defined in Rule
144 under the Securities Act of 1933, as amended (an "Affiliate").
The transferee is an Affiliate of the Company.
Dated:
-10-
Signature(s)
NOTICE: The signature of the conversion notice or the assignment
must correspond with the name as written upon the face of the Note in every
particular without alteration or enlargement or any change whatever.
-11-