Full Doc
 | 2004 |
ICOS Corporation Reports Results for Second Quarter of 2004
ICOS Corporation Reports Results for Second Quarter of 2004 (21K)
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{DOCUMENT}
{TYPE}EX-99
{SEQUENCE}2
{FILENAME}a4695520ex99.txt
{DESCRIPTION}ICOS CORPORATION EXHIBIT 99
{TEXT}
Exhibit 99
ICOS Corporation Reports Results for Second Quarter of 2004
BOTHELL, Wash.--(BUSINESS WIRE)--Aug. 4, 2004--
Worldwide sales of Cialis(R) (tadalafil) exceed $135 million
ICOS Corporation (Nasdaq:ICOS) today released its financial
results for the three and six months ended June 30, 2004, and
summarized recent events.
Cialis (tadalafil) Global Launch Update
During the 2004 second quarter, worldwide sales of Cialis, a
treatment for erectile dysfunction (ED), totaled $137.2 million.
Cialis sales reported by Lilly ICOS LLC (Lilly ICOS) were $50.8
million in the United States, $45.3 million in Europe and $8.9 million
in Canada and Mexico. Sales in territories outside of North America
and Europe are reported by Eli Lilly and Company and totaled $32.2
million during the period. Lilly ICOS financial results, for the
second quarter of 2004, were reported on July 22, 2004.
"Worldwide sales of Cialis were strong in the 2004 second quarter
and continue on track to achieve our full year worldwide sales
expectation of $500 million to $600 million," observed Paul N. Clark,
ICOS Chairman and CEO. "The PDE5 inhibitor market is solidly expanding
around the world. In the U.S., first-half 2004 PDE5 inhibitor market
prescription growth was 13.2%, compared to the same period in 2003.(1)
Also, in the U.S., Cialis' share of total PDE5 inhibitor prescriptions
grew to 14.0% for the month of June 2004, up 3.8 percentage points
from its March 2004 level.(1) Patients and physicians continue to
embrace Cialis' unique 36-hour window of opportunity."
"We are so confident that men with ED will appreciate the benefits
of Cialis, that we are offering a bold, innovative consumer guarantee
called The Cialis Promise," Clark said. "For a limited time, Lilly
ICOS is offering to pay for a trial of a competitor's product if men
with ED are not satisfied with Cialis. We expect that this program
will encourage new patients to try Cialis, and we believe they will be
satisfied with their Cialis experience. In the Cialis Challenge, a
similar program previously conducted in selected doctors' offices, men
with ED who tried Cialis were then offered a voucher for additional
free Cialis tablets or free tablets of the competing products. The
vast majority of men who redeemed the vouchers chose to receive more
Cialis."
Other Second Quarter Highlights
Patient enrollment continued in a Phase 2 clinical study with
IC485, an orally administered, small molecule PDE4 inhibitor. The
Phase 2 clinical study is designed to evaluate whether IC485 can block
certain inflammatory processes in the lungs of patients with chronic
obstructive pulmonary disease. The study is on track to conclude and
provide clinical data in the first half of 2005.
In June 2004, ICOS and Raven biotechnologies, inc. entered into an
agreement providing ICOS with an exclusive option to license three of
Raven's monoclonal antibodies for potential applications, including
cancer therapies. ICOS has begun to evaluate these early-stage
preclinical candidates.
Later this year, we expect to begin a clinical study of tadalafil
to treat patients with benign prostatic hyperplasia (BPH), a condition
characterized by benign enlargement of the prostate gland which can
cause a number of troublesome urinary tract symptoms as a man ages. It
is estimated that over 6 million men in the U.S. and Europe are
receiving drug treatment for BPH.(2)
In addition, we continue to evaluate possible new product
candidates in our discovery and preclinical research programs and
expect to advance one or two new molecules into Phase 1 clinical
studies over the next year or so. Our most advanced discovery and
preclinical research compounds include additional phosphodiesterase
inhibitors for inflammatory and other diseases, an oral leukocyte
function-associated antigen one (LFA-1) antagonist for psoriasis, a
cell cycle checkpoint inhibitor for cancer and an oral kinase
antagonist used as a modulator of B lymphocyte function for
inflammatory diseases, such as autoimmune disorders, and for cancer.
Financial Results
For the three months ended June 30, 2004, ICOS reported a net loss
of $51.9 million ($0.82 per share), compared to a net loss of $11.5
million ($0.19 per share) for the three months ended June 30, 2003.
Equity in losses of Lilly ICOS was $35.1 million in the second
quarter of 2004, compared to $20.0 million in the second quarter of
2003. The increase was primarily due to 2004 sales and marketing costs
associated with the launches of Cialis in the United States, Canada
and Mexico.
Total revenue was $17.9 million in the second quarter of 2004,
compared to $26.7 million in the second quarter of 2003.
Collaboration revenue from affiliates (cost reimbursement revenue)
totaled $14.7 million in the second quarter of 2004, compared to $2.6
million in the second quarter of 2003. The increase reflects higher
revenue from Lilly ICOS, primarily reimbursement of costs associated
with our sales force promoting Cialis in the United States.
Revenue from licenses of technology in the second quarter of 2003
included $21.3 million recognized in conjunction with our
reacquisition, from Biogen IDEC, Inc., of sole development rights to
the LFA-1 antagonist program.
Contract manufacturing revenue increased from $2.7 million in the
second quarter of 2003, to $3.2 million in the second quarter of 2004.
Contract manufacturing expenses increased from $2.2 million in the
second quarter of 2003, to $3.0 million in the second quarter of 2004.
The increases are due to greater utilization of our manufacturing
capacity for third-party contracts and additional development services
provided under the associated agreements.
Total operating expenses were $34.7 million in the second quarter
of 2004, compared to $30.6 million in the second quarter of 2003.
Research and development expenses decreased $5.6 million from the
second quarter of 2003, to $17.5 million in the second quarter of
2004. The decrease was primarily due to discontinuation of certain
clinical programs in 2003 and early 2004, partially offset by
incremental Lilly ICOS research and development activities being
performed by ICOS personnel in the current year.
Marketing and selling expenses increased $8.9 million from the
second quarter of 2003, to $10.1 million in the second quarter of
2004. The increase reflects costs associated with our U.S. sales force
promoting Cialis.
In the second quarter of 2003, we recognized a $10.0 million gain
upon the sale of our partnership interests in ICOS-Texas Biotechnology
L.P. to Encysive Pharmaceuticals, Inc.
In the second quarter of 2004, we incurred $1.7 million of
interest expense on $278.7 million of 2% convertible subordinated
debt, issued in mid-2003.
Interest and other income totaled $1.7 million in the second
quarter of 2004, compared to $2.3 million in the second quarter of
2003. The decrease primarily reflects lower average interest rates
earned in 2004, partially offset by the impact of higher average
invested balances during the 2004 period, due to investment of the
proceeds from our mid-2003 convertible debt offering.
For the six months ended June 30, 2004, ICOS reported a net loss
of $138.2 million ($2.18 per share), compared to a net loss of $52.0
million ($0.84 per share) for the six months ended June 30, 2003. The
2004 increase is primarily due to our 50% share of higher Lilly ICOS
losses, reflecting sales and marketing costs associated with the
launches of Cialis in the United States, Canada and Mexico.
At June 30, 2004, we had cash, cash equivalents, investment
securities and associated interest receivable of $354.0 million.
ICOS Corporation, a biotechnology company, is dedicated to
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Encysive Pharma
As referenced in this ICOS Corporation Reports Results for Second Quarter of 2004:
Encysive Pharmaceuticals, – of 2003, we recognized a $10.0 million gain
upon the sale of our partnership interests in ICOS-Texas Biotechnology
L.P. to Encysive Pharmaceuticals, Inc.
In the second quarter of 2004, we incurred $1.7 million of
interest expense on $278.7 million of 2% convertible
_____________
dt 271667
;
Biogen Idec
As referenced in this ICOS Corporation Reports Results for Second Quarter of 2004:
Biogen IDEC, – States.
Revenue from licenses of technology in the second quarter of 2003
included $21.3 million recognized in conjunction with our
reacquisition, from Biogen IDEC, Inc., of sole development rights to
the LFA-1 antagonist program.
Contract manufacturing revenue increased from $2.7 million in the
second
_____________
Biogen IDEC, – 14,697 $ 28,764
Suncos Corporation - - -
ICOS-Texas
Biotechnology L.P. - - -
------- ------- --------
$14,067 $14,697 $ 28,764
======= ======= ========
Licenses of technology:
Lilly ICOS LLC $ - $ - $ -
Biogen IDEC, Inc. - - -
------- ------- --------
$ - $ - $ -
======= ======= ========
Equity in losses of
affiliates:
Lilly ICOS LLC $69,237 $35,090 $104,327
Suncos Corporation - - -
------- ------- --------
$69,237 $35,090 $104,
_____________
Biogen IDEC, – 1,400
------- ------- ------- ------- -------
$ 5,348 $ 2,642 $ 5,339 $12,614 $25,943
======= ======= ======= ======= =======
Licenses of technology:
Lilly ICOS LLC $ 31 $ - $ - $15,000 $15,031
Biogen IDEC, Inc. 602 21,343 - - 21,945
------- ------- ------- ------- -------
$ 633 $21,343 $ - $15,000 $36,976
======= ======= ======= ======= =======
Equity in losses of
affiliates:
Lilly ICOS LLC $21,
_____________
dt 274558
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| Full Doc
| 2004 |
ICOS Corporation Reports Results for 2003
ICOS Corporation Reports Results for 2003 (25K)
Doc #304483: This document is immediately available for purchase, but does not have a preview available for viewing.
{DOCUMENT}
{TYPE}EX-99
{SEQUENCE}3
{FILENAME}a4564304_ex99.txt
{DESCRIPTION}ICOS EXHIBIT 99
{TEXT}
Exhibit 99
ICOS Corporation Reports Results for 2003
BOTHELL, Wash.--(BUSINESS WIRE)--Feb. 3, 2004--ICOS Corporation
(Nasdaq:ICOS) today summarized 2003 highlights, released its financial
results for the year and fourth quarter ended December 31, 2003, and
provided guidance regarding financial performance expectations for
2004.
Cialis(R) (tadalafil) 2003 highlights
During 2003, Cialis was launched in 55 countries around the world,
including nine of the ten largest erectile dysfunction (ED) markets.
Commercial launches began in Europe, New Zealand and Australia in
February, and culminated in the United States and Canada in November.
Cialis is being marketed for the treatment of ED by Lilly ICOS LLC
(Lilly ICOS), a 50/50 joint venture between ICOS and Eli Lilly and
Company (Lilly), in North America and Europe. Elsewhere, Lilly has
rights to market Cialis, and pays a royalty, to Lilly ICOS, equal to
20% of net product sales in those territories.
The first stage of the U.S. launch of Cialis involved the rapid
deployment of sales representatives, assuring product availability in
pharmacies across the country and medical symposia broadcast to
thousands of health care professionals. The second stage of the U.S.
launch began recently with the debut of brand-awareness and
full-message advertising to consumers. The first Cialis full-message
television advertising aired during the NFL(R) Super Bowl on February
1, 2004.
With less than twelve months on the market, Cialis surpassed $200
million in worldwide sales in 2003. In Lilly ICOS territories, sales
totaled $129.8 million for the year, including $27.9 million in the
U.S., $95.1 million in Europe and $6.8 million in Canada and Mexico
combined. In countries where Lilly markets Cialis, 2003 sales were
$73.5 million.
By the end of 2003, in major markets in Europe, Cialis had
successfully captured a significant share of unit (tablet) sales among
the three PDE5 inhibitors -- Cialis, Viagra(R) (sildenafil) and
Levitra(R) (vardenafil). For December 2003, based on pharmacy
purchases from wholesalers(1), Cialis had a 33% share of unit sales in
France, 30% in Germany, 27% in Italy and 18% in both Spain and the
United Kingdom. Also, through December 2003, PDE5 inhibitor markets
across the major European countries grew at healthy rates(1) -- more
than 25% to nearly 50%.
(1) IMS Health. IMS MIDAS, Copyright 2004. Growth rates are based
on three-month moving total tablet inflow to pharmacies.
Other 2003 Highlights
Throughout 2003, we continued our investments in early stage
research and preclinical candidates, in order to ready one or two
candidates for advancement into Phase 1 clinical development in 2004.
Our most advanced preclinical candidates include a potent oral LFA-1
(leukocyte function-associated antigen one) antagonist for psoriasis,
a phosphodiesterase inhibitor for an inflammatory disease, a cell
cycle checkpoint modulator for cancer, and an oral modulator of B
lymphocyte function for an autoimmune disease.
By 2003 year-end, we completed patient follow-up in a Phase 2
clinical study evaluating RTX(TM) (resiniferatoxin) for the treatment
of interstitial cystitis. In late January 2004, it was determined that
RTX was not effective in relieving patients' symptoms. We will not
pursue additional studies of interstitial cystitis.
Also, in December 2003, a Phase 2 clinical study was initiated
with IC485 in patients with chronic obstructive pulmonary disease. We
expect to complete this study in 2005.
2003 Full-Year Financial Results
For the year ended December 31, 2003, we reported a net loss of
$125.5 million ($2.01 per share), compared to a net loss of $161.6
million ($2.64 per share) for the year ended December 31, 2002.
Total revenue was $75.1 million in 2003, compared to $92.9 million
in 2002.
Collaboration revenue from affiliates (cost reimbursement revenue)
totaled $25.9 million in 2003, compared to $77.7 million in 2002. The
decrease reflects the December 2002 termination of Pafase(R) (rPAF-AH)
development activities and our decision, in early 2003, to conclude
the endothelin receptor antagonist collaboration with Encysive
Pharmaceuticals Inc. (formerly Texas Biotechnology Corporation). The
decrease was partially offset by higher cost reimbursement revenue
from Lilly ICOS, primarily due to reimbursement of the cost of the
ICOS sales force to promote Cialis in the United States.
Revenue from licenses of technology was $37.0 million in 2003,
compared to $6.6 million in the same period of the prior year. 2003
technology license fee revenue includes $21.3 million of previously
deferred upfront fees and forgiven loans, received from Biogen IDEC,
Inc. (formerly Biogen, Inc.), which we recognized as revenue in
conjunction with our reacquisition of sole development rights to the
LFA-1 antagonist program in June 2003. Revenue from licenses of
technology for 2003 also included $15.0 million earned upon the first
commercial sale of Cialis in the United States.
Contract manufacturing revenue increased $3.7 million, to $12.2
million in 2003, primarily due to greater utilization of our
manufacturing capacity for third-party contracts and additional
development services provided under the associated agreements.
Total operating expenses were $130.5 million in 2003, compared to
$162.6 million in 2002.
Research and development expenses decreased $43.6 million, to
$85.8 million in 2003. The decrease was primarily due to
discontinuation of activities associated with the Pafase and
endothelin receptor antagonist programs, partially offset by increased
costs related to development activities associated with Cialis and
RTX.
Marketing and selling expenses increased $10.5 million, to $19.8
million in 2003. The increase reflects incremental costs associated
with recruiting, hiring, training and deploying our U.S. sales force
to promote Cialis, primarily to urologists.
Contract manufacturing expenses increased $2.1 million, to $9.7
million in 2003. This increase reflects costs associated with greater
utilization of our manufacturing capacity for third-party contracts
and additional development services provided under the associated
agreements.
General and administrative expenses decreased $1.1 million, to
$15.3 million in 2003. The decrease primarily reflects timing of
patent filings and patent prosecution expenses.
Our equity in losses of affiliates was $87.2 million in 2003,
compared to $104.2 million in the prior year.
Our 50% share of Lilly ICOS' losses increased $21.7 million
compared to 2002, to $87.3 million in 2003. The increase was primarily
due to higher Lilly ICOS sales and marketing costs associated with the
2003 launches of Cialis in North America and Europe.
During 2002, we recognized $29.9 million in losses related to our
equity interest in Suncos Corporation, our 50%-owned affiliate that
was developing Pafase. Upon discontinuation of the Pafase program, in
December 2002, Suncos accrued estimated close-out costs, primarily
associated with the program's clinical and manufacturing activities.
During 2002, we recognized $8.6 million in losses related to our
50% interest in ICOS-Texas Biotechnology L.P. (ICOS-TBC). Encysive
agreed to be responsible for all costs and expenses incurred by
ICOS-TBC subsequent to December 31, 2002. Our other income for 2003
included a $10.0 million gain upon the sale, to Encysive, of our
partnership interests in ICOS-TBC.
We incurred $3.6 million of interest expense on $278.7 million of
2% convertible subordinated debt, which we placed in June and July of
2003.
At December 31, 2003, we had cash, cash equivalents, investment
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|
Encysive Pharma
As referenced in this ICOS Corporation Reports Results for 2003:
Encysive
Pharmaceuticals – 2002 termination of Pafase(R) (rPAF-AH)
development activities and our decision, in early 2003, to conclude
the endothelin receptor antagonist collaboration with Encysive
Pharmaceuticals Inc. (formerly Texas Biotechnology Corporation). The
decrease was partially offset by higher cost reimbursement revenue
from Lilly ICOS, primarily due to reimbursement of
_____________
dt 271668
;
Biogen Idec
As referenced in this ICOS Corporation Reports Results for 2003:
Biogen IDEC, – of the prior year. 2003
technology license fee revenue includes $21.3 million of previously
deferred upfront fees and forgiven loans, received from Biogen IDEC,
Inc. (formerly Biogen, Inc.), which we recognized as revenue in
conjunction with our reacquisition of sole development rights to the
LFA-1
_____________
Biogen IDEC, – 642 $ 5,339 $12,614 $25,943
======= ======= ======= ======= =======
Licenses of technology:
Lilly ICOS LLC $ 31 $ - $ - $15,000 $15,031
ICOS Clinical
Partners, L.P. - - - - -
Biogen IDEC, Inc. 602 21,343 - - 21,945
------- ------- ------- ------- -------
$ 633 $21,343 $ - $15,000 $36,976
======= ======= ======= ======= =======
Equity in losses of
affiliates:
Lilly ICOS LLC $21,
_____________
Biogen IDEC, – of technology:
Lilly ICOS LLC $ 623 $ 83 $ 243 $ 608 $ 1,557
ICOS Clinical
Partners, L.P. 427 315 323 2,095 3,160
Biogen IDEC, Inc. 330 236 911 423 1,900
------- ------- ------- ------- --------
$ 1,380 $ 634 $ 1,477 $ 3,126 $ 6,617
======= ======= ======= ======= ========
Equity in losses of
affiliates:
Lilly
_____________
dt 274560
;
|
Biogen
As referenced in this ICOS Corporation Reports Results for 2003:
Biogen, Inc – 2003
technology license fee revenue includes $21.3 million of previously
deferred upfront fees and forgiven loans, received from Biogen IDEC,
Inc. (formerly Biogen, Inc .), which we recognized as revenue in
conjunction with our reacquisition of sole development rights to the
LFA-1 antagonist program in June
_____________
dt 276474
;
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Agreement
Agreement (35K)
Doc #302160: Click preview link for longer preview.
AGREEMENT
This Agreement, made and entered into this day of ("Agreement"), is by
and between Texas Biotechnology Corporation, a Delaware corporation ("Company"),
and __________________ ("Indemnitee"):
WHEREAS, highly competent persons are becoming more reluctant to serve
publicly-held corporations as directors or in other capacities unless they are
provided with adequate protection through insurance or adequate indemnification
against inordinate risks of claims and actions against them arising out of their
service to, and activities on behalf of, the corporation; and
WHEREAS, the current impracticability of obtaining adequate insurance
and the uncertainties relating to indemnification have increased the difficulty
of attracting and retaining such persons;
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that the inability to attract and retain such persons is detrimental
to the best interests of the Company's stockholders and that the Company should
act to assure such persons that there will be increased certainty of such
protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified;
WHEREAS, Indemnitee is willing to serve, continue to serve and to take
on additional service for or on behalf of the Company on the condition that he
be so indemnified; and
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
SECTION 1. Services by Indemnitee. Indemnitee agrees to serve as
_______________ of the Company. Indemnitee may at any time and for any reason
resign from such position (subject to any other contractual obligation or any
obligation imposed by operation of law), in which event the Company shall have
no obligation under this Agreement to continue Indemnitee in any such position.
SECTION 2. Indemnification - General. The Company shall indemnify, and
advance Expenses (as hereinafter defined), to Indemnitee as provided in this
Agreement and to the fullest extent permitted by applicable law in effect on the
date hereof and to such greater extent as applicable law may thereafter from
time to time permit. The rights of Indemnitee provided under the preceding
sentence shall include, but shall not be limited to, the rights set forth in the
other Sections of this Agreement.
{PAGE}
SECTION 3. Proceedings Other Than Proceedings by or in the Right of the
Company. Indemnitee shall be entitled to the rights of indemnification provided
in this Section 3 if, by reason of his Corporate Status (as hereinafter defined)
or by reason of anything done or not done by Indemnitee in any such capacity, he
is, or is threatened to be made, a party to any threatened, pending, or
completed Proceeding (as hereinafter defined), other than a Proceeding by or in
the right of the Company. Pursuant to this Section 3, Indemnitee shall be
indemnified to the full extent of the law against Expenses, judgments,
penalties, fines and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect
of such expenses, judgments, fines, penalties or amounts paid in settlement)
actually and reasonably incurred by him or on his behalf in connection with such
Proceeding or any claim, issue or matter therein, if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal Proceeding, had no reasonable
cause to believe his conduct was unlawful.
SECTION 4. Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 4
if, by reason of his Corporate Status, he is, or is threatened to be made, a
party to any threatened, pending or completed Proceeding brought by or in the
right of the Company to procure a judgment in its favor. Pursuant to this
Section, Indemnitee shall be indemnified to the full extent of the law against
Expenses actually and reasonably incurred by him or on his behalf in connection
with such Proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company.
Notwithstanding the foregoing, no indemnification against such Expenses shall be
made in respect of any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company if applicable
law prohibits such indemnification; provided, however, that, if applicable law
so permits, indemnification against Expenses shall nevertheless be made by the
Company in such event if and only to the extent that the Court of Chancery of
the State of Delaware, or the court in which such Proceeding shall have been
brought or is pending, shall determine.
SECTION 5. Indemnification for Expenses of a Party Who is Wholly or
Partly Successful. Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or more
but less than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Section and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
SECTION 6. Indemnification for Expenses of a Witness. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his Corporate Status, a
2
{PAGE}
witness in any Proceeding, he shall be indemnified against all Expenses actually
and reasonably incurred by him or on his behalf in connection therewith.
SECTION 7. Advancement of Expenses. The Company shall advance all
reasonable Expenses incurred by or on behalf of Indemnitee in connection with
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| 2007 |
Agreement and Plan of Reorganization
Agreement and Plan of Reorganization (54K)
Doc #3030867: Click preview link for longer preview.
THE ENTERPRISE GROUP OF FUNDS, INC.
THE 787 FUND, INC.
AGREEMENT AND PLAN OF
REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (�Agreement�) is made as of this 20th day of September, 2007, by and among (1) The 787 Fund, Inc., a Maryland corporation (�787 Fund�), with its principal place of business at 1290 Avenue of the Americas, New York, New York 10104, on its own behalf and on behalf of AXA Enterprise Mergers and Acquisitions Fund, its sole segregated portfolio of assets (�series�) (�Acquiring Fund�), (2) The Enterprise Group of Funds, Inc., a Maryland corporation ( . . .
3030867
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| 2008 |
Encysive Pharmaceuticals Inc.
Encysive Pharmaceuticals Inc. (238K)
Doc #3286199: Click preview link for longer preview.
Agreement and Plan of Merger
dated as of February 20, 2008
among
Pfizer Inc.,
Explorer Acquisition Corp.
and
Encysive Pharmaceuticals Inc.
Table of Contents
Page
ARTICLE 1 THE OFFER AND THE MERGER
1
SECTION 1.1
The Offer
1
. . .
3286199
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Encysive Pharmaceuticals Inc.
Encysive Pharmaceuticals Inc. (238K)
Doc #3286200: Click preview link for longer preview.
Agreement and Plan of Merger
dated as of February 20, 2008
among
Pfizer Inc.,
Explorer Acquisition Corp.
and
Encysive Pharmaceuticals Inc.
Table of Contents
Page
ARTICLE 1 THE OFFER AND THE MERGER
1
SECTION 1.1 The Offer
1
SECTION 1.2 Company Actions
3
SECTION 1.3 The Merger
4
SECTION 1.4 Effects of the . . .
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| 2000 |
Agreement of Limited Partnership
Agreement of Limited Partnership (139K)
Doc #302182: Click preview link for longer preview.
AGREEMENT OF LIMITED PARTNERSHIP
of
ICOS-TEXAS BIOTECHNOLOGY L.P.
among
ICOS-ET-LP LLC and
TEXAS BIOTECHNOLOGY CORPORATION,
as Limited Partners,
and
ICOS-ET-GP LLC and
TBC-ET, Inc.,
as General Partners.
Effective as of
June 6, 2000
[*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION.
-1-
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{S} {C}
ARTICLE 1 DEFINITIONS; INTERPRETATION....................................................................2
1.1 Definitions............................................................................2
1.2 Interpretation.........................................................................8
ARTICLE 2 GENERAL PROVISIONS.............................................................................8
2.1 Name...................................................................................8
2.2 Principal Place of Business; Registered Office and Agent...............................8
2.3 Certificate of Limited Partnership.....................................................8
2.4 Term...................................................................................9
2.5 Purpose................................................................................9
2.5.1 Principal Purposes............................................................9
2.5.2 Commitment to [ * ]...........................................................9
2.6 Title to Partnership Property.........................................................10
2.7 Confidentiality.......................................................................10
2.8 Press Releases........................................................................11
ARTICLE 3 CAPITAL.......................................................................................11
3.1 Initial Capital Contributions.........................................................11
3.2 [ * ] Contribution of Background Technology...........................................11
3.2.1 [ * ]........................................................................11
3.2.2 TBC's Initial [ * ] Capital Contribution of Background Technology............11
(a) Transfer Pursuant to Endothelin License Agreement...................11
(b) [ * ]...............................................................12
(c) [ * ]...............................................................12
(d) Basis Allocation....................................................12
3.2.3 Additional Capital Contributions [ * ].......................................12
3.3 Management Committee Declared Capital Calls...........................................12
3.3.1 Capital Calls................................................................12
3.3.2 Defaulting Partner...........................................................12
3.4 [ * ] Research Payments and Royalties.................................................13
3.5 No Withdrawal of Capital; No Interest on Capital......................................13
ARTICLE 4 TAX PROVISIONS................................................................................13
4.1 Maintenance of Capital Accounts.......................................................13
4.2 Allocation of Profits.................................................................14
4.3 Allocation of Losses..................................................................14
4.4 Special Allocations...................................................................14
4.4.1 Minimum Gain Chargeback......................................................14
4.4.2 Partner Minimum Gain Chargeback..............................................15
4.4.3 Qualified Income Offset......................................................15
4.4.4 Gross Income Allocation......................................................15
4.4.5 Nonrecourse Deductions.......................................................16
{/TABLE}
[*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION.
-i-
{PAGE} 3
{TABLE}
{S} {C}
4.4.6 Partner Nonrecourse Deductions...............................................16
4.4.7 Code Section 754 Adjustments.................................................16
4.4.8 Allocations Relating to Taxable Issuance of Interests........................16
4.5 [ * ].................................................................................16
4.6 Code Section 704(c) Allocations.......................................................16
4.7 Other Allocations Rules...............................................................17
4.8 Tax Matters Partner...................................................................17
ARTICLE 5 DISTRIBUTIONS OF CASH.........................................................................18
5.1 Distributions.........................................................................18
5.1.1 Limitations..................................................................18
5.1.2 Amount of Distributions......................................................18
5.1.3 Timing of Distributions......................................................19
5.2 Additional Limitations on Distributions...............................................19
5.3 [ * ].................................................................................19
5.4 Distribution to Pay Taxes.............................................................19
ARTICLE 6 MANAGEMENT AND OPERATION......................................................................19
6.1 Management of the Partnership.........................................................19
6.1.1 General Partners.............................................................19
6.1.2 Limited Partners.............................................................20
6.2 Appointment of Committee Members......................................................20
6.3 Performance of Duties.................................................................20
6.4 Devotion of Time......................................................................21
6.5 Meetings of the Management Committee..................................................21
6.6 Action by Committee Members Without a Meeting.........................................21
6.7 Quorum and Voting at Meetings of Committee Members....................................21
6.8 Officers; Teams/Committees............................................................22
6.9 Internal Controls.....................................................................22
6.10 Financial and Business Information and Tax Returns....................................23
6.11 Bank Accounts.........................................................................23
6.12 Independent Enterprise................................................................23
6.13 Compensation..........................................................................23
6.14 Fiduciary Duty........................................................................24
6.15 Other Activities......................................................................24
6.16 Noncompetition........................................................................24
6.17 Conflicts of Interest.................................................................24
6.18 Patents...............................................................................25
6.19 Operations Outside the United States..................................................25
6.20 Trademarks............................................................................25
6.21 Responsible Party for Regulatory Purposes.............................................25
6.22 Marketing, Co-Promotion and Sales.....................................................25
6.23 Manufacturing.........................................................................25
6.24 Regulatory Matters....................................................................26
ARTICLE 7 RIGHTS, OBLIGATIONS AND POWERS OF THE MEMBERS.................................................26
{/TABLE}
[*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION.
-ii-
{PAGE} 4
{TABLE}
{S} {C}
7.1 Compensation of Partners..............................................................26
7.2 Services..............................................................................26
7.2.1 Types of Services............................................................26
7.2.2 Charges for Services.........................................................26
7.3 Admission of Additional Partners......................................................27
ARTICLE 8 LIMITATION UPON LIABILITY; INDEMNIFICATION....................................................27
8.1 Limitation Upon Liability of Limited Partners.........................................27
8.2 Indemnification by Partnership........................................................27
ARTICLE 9 REPRESENTATIONS AND WARRANTIES................................................................28
9.1 Representations and Warranties........................................................28
9.1.1 Organization and Existence...................................................28
9.1.2 Power and Authority..........................................................28
9.1.3 Authorization and Enforceability.............................................28
9.1.4 No Governmental Consents.....................................................28
9.1.5 No Conflict or Breach........................................................28
9.1.6 No Proceedings...............................................................29
9.1.7 No Endothelin Agents.........................................................29
9.2 Additional Representations and Warranties of TBC......................................29
9.3 Warranty of Statements................................................................29
9.4 Survival of Representations and Warranties............................................30
ARTICLE 10 INDEMNIFICATION..............................................................................30
10.1 Indemnification.......................................................................30
10.2 Mechanism for Indemnification.........................................................30
ARTICLE 11 DISPUTE RESOLUTION...........................................................................31
11.1 Dispute...............................................................................31
11.2 Mediation.............................................................................31
ARTICLE 12 TRANSFERS OF MEMBERSHIP INTERESTS............................................................31
12.1 Overall Restrictions..................................................................31
12.2 Additional Restrictions on the Limited Partners.......................................32
12.2.1 Event Involving ICOS-LP......................................................32
12.2.2 Event Involving TBC..........................................................32
12.3 Purchase Price and Payment Date.......................................................32
12.4 Change in Control.....................................................................33
12.4.1 ICOS-LP......................................................................33
12.4.2 TBC..........................................................................33
12.4.3 Definition...................................................................33
12.5 Admission of Substituted Partners.....................................................33
12.6 Specific Performance..................................................................34
ARTICLE 13 SALE, DISSOLUTION AND LIQUIDATION............................................................34
13.1 Events of Dissolution.................................................................34
13.2 Final Accounting and Tax Returns......................................................35
13.3 Liquidation...........................................................................35
13.4 Distributions in Liquidation..........................................................35
{/TABLE}
[*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION.
-iii-
{PAGE} 5
{TABLE}
{S} {C}
13.5 Deficit Capital Accounts..............................................................36
13.6 Termination of Partnership and Agreement..............................................37
ARTICLE 14 ACCOUNTING AND REPORTS.......................................................................37
14.1 Books and Records.....................................................................37
14.2 Accounting Method.....................................................................38
14.3 Fiscal Year...........................................................................38
14.4 Reports; Tax Returns..................................................................38
14.5 Required Governmental Filings.........................................................39
ARTICLE 15 GENERAL PROVISIONS...........................................................................39
15.1 Notices...............................................................................39
15.2 Waiver................................................................................40
15.3 Severability..........................................................................41
15.4 Waiver of Partition...................................................................41
15.5 Further Assurances....................................................................41
15.6 Governing Law.........................................................................41
15.7 Counterparts..........................................................................41
15.8 Limitation on Rights of Others........................................................41
15.9 Successors and Assigns................................................................42
15.10 Entire Agreement; Amendment...........................................................42
15.11 Expenses..............................................................................42
15.12 Construction..........................................................................42
15.13 Disclaimer of Agency..................................................................42
15.14 Rights and Remedies...................................................................42
15.15 Attorneys' Fees.......................................................................43
EXHIBIT A ENDOTHELIN LICENSE AGREEMENT...................................................................1
EXHIBIT B RESEARCH AND DEVELOPMENT SERVICE AGREEMENT.....................................................1
EXHIBIT C PRESS RELEASE..................................................................................1
EXHIBIT D SCHEDULE OF [ * ] PAYMENTS.....................................................................1
{/TABLE}
[*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION.
-iv-
{PAGE} 6
AGREEMENT OF LIMITED PARTNERSHIP
OF
ICOS-TEXAS BIOTECHNOLOGY L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP (this "Agreement") of ICOS-TEXAS
BIOTECHNOLOGY L.P. (the "Partnership") is entered into effective as of this 6th
day of June 2000 (the "Effective Date") by and between ICOS-ET-LP LLC, a
Washington limited liability company ("ICOS-LP"), and TEXAS BIOTECHNOLOGY
CORPORATION, a Delaware corporation ("TBC"), as the Limited Partners; and
ICOS-ET-GP LLC, a Washington limited liability company ("ICOS-GP"), and TBC-ET,
Inc., a Delaware corporation ("TBC-GP"), as the General Partners. The Limited
Partners and General Partners are referred to hereafter collectively as the
"Partners."
RECITALS
A. TBC has conducted research, has developed and possesses
certain existing proprietary patent rights, technical information, technology
and know-how relating to Endothelin Agents and their ligands.
B. The Partners believe that the aforementioned patent rights,
information, technology and know-how will have important application to the
development of products.
C. The Partners formed the Partnership for the principal purpose
of developing, manufacturing, producing and selling throughout the Territory on
a commercial basis Endothelin Products.
D. TBC intends to license to the Partnership its technology
related to Endothelin Agents for use in the Field in partial consideration for a
Partnership Interest in the Partnership as more fully set forth herein.
E. ICOS-LP, ICOS-GP and TBC-GP each intend to contribute cash to
the Partnership in consideration for Partnership Interests in the Partnership as
more fully set forth herein.
F. The Partners believe that it is in their best interest to set
forth their mutual understanding with respect to, among other things, management
and operation of the Partnership and the ownership and Transfer of the
Partnership Interests.
NOW, THEREFORE, in consideration of the mutual covenants of the
parties, each to the other, and of good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
[*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION.
{PAGE} 7
ARTICLE 1
DEFINITIONS; INTERPRETATION
1.1 DEFINITIONS
Capitalized terms used herein shall have the following meanings:
"Act" means the Delaware Revised Uniform Limited Partnership Act, as
provided in Title 6, Chapter 17 of the Delaware Code, Section 101 et. seq., as
amended from time to time.
"Adjusted Capital Account Deficit" means, with respect to any Partner,
the deficit balance, if any, in such Partner's Capital Account as of the end of
the relevant Fiscal Year, after giving effect to the following adjustments:
(a) Credit to such Capital Account any amounts that such
Partner is obligated to restore pursuant to any provision of this Agreement or
is deemed to be obligated to restore pursuant to the penultimate sentences of
Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(b) Debit to such Capital Account the items described in
Regulations Sections 1.704-l(b)(2)(ii)(d)(4), 1.704-l(b)(2)(ii)(d)(5) and
1.704-l(b)(2)(ii)(d)(6).
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the provisions of Regulations Section
1.704-l(b)(2)(ii)(d) and shall be interpreted consistently therewith.
"Affiliate" means, with respect to any Person, another Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. The direct or indirect ownership of [ * ] or, if smaller,
the maximum allowed by applicable law, of the voting securities of a business
entity or of an interest in the assets, profits or earnings of an Entity shall
be deemed to constitute "control" of the Entity.
"Agreement" means this Agreement of Limited Partnership, including all
exhibits attached hereto, as originally executed and as amended from time to
time.
"Background Technology" shall have the meaning set forth in the
Endothelin License Agreement. The Background Technology consists of proprietary
technical information, technology and know-how, including patents, patent
applications and copyrights, owned or controlled by TBC as of the Effective Date
that relate to Endothelin Agents and that are required in the development,
manufacture, production, use or sale of Endothelin Products. The
[*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION.
-2-
{PAGE} 8
Background Technology is being licensed to the Partnership effective as of the
Effective Date pursuant to the Endothelin License Agreement.
"Capital Account" means the capital account to be determined and
maintained for each Partner pursuant to Section 4.1 throughout the existence of
the Partnership, which shall be interpreted and applied in a manner consistent
with Regulations Section 1.704-1(b).
"Capital Contribution" means, with respect to any Partner, the amount
of money and the initial Gross Asset Value of any property (other than money)
contributed to the Partnership with respect to the Partnership Interest held by
such Partner reduced by the amount of any liabilities of such Partner assumed by
the Partnership in connection with such Capital Contribution or that is secured
by any property contributed by such Partner as a part of such Capital
Contribution.
"Certificate of Limited Partnership" has the meaning set forth in
Section 2.3.
"Chair" means the chairperson of the Management Committee as appointed
in Section 6.2.
"Change in Control" has the meaning set forth in Section 12.4.3.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee Member" means a person appointed to the Management Committee
pursuant to Article 6.
"Depreciation" means, for each Fiscal Year, an amount equal to the
depreciation, amortization or other cost recovery deduction allowable with
respect to an asset for such Fiscal Year, except that if the Gross Asset Value
of an asset differs from its adjusted basis for federal income tax purposes as
of the beginning of such Fiscal Year, Depreciation shall be an amount that bears
the same ratio to such beginning Gross Asset Value as the federal income tax
depreciation, amortization or other cost recovery deduction for such Fiscal Year
bears to such beginning adjusted tax basis; provided, however, that if the
adjusted basis for federal income tax purposes of an asset at the beginning of
such Fiscal Year is zero, Depreciation shall be determined with reference to
such beginning Gross Asset Value using any reasonable method selected by the
Management Committee.
"Effective Date" means the effective date of this Agreement as
indicated in the first paragraph hereof.
"Endothelin Agent" [ * ].
[*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION.
-3-
{PAGE} 9
"Endothelin License Agreement" means the license agreement to be
entered into between the Partnership and TBC as of the Effective Date, a copy of
which is attached hereto as Exhibit A.
"Endothelin Products" means [ * ].
"Endothelin Receptor" means [ * ].
"Endothelin Technology" shall have the same meaning as "Partnership
Technology" as set forth in the Research and Development Service Agreement.
"Entity" means any general partnership, limited partnership, limited
liability partnership, limited liability company, corporation, joint venture,
trust, estate, business trust, cooperative or association or any other
organization that is not a natural Person.
302182
|
ICOS
As referenced in this Agreement of Limited Partnership:
ICOS Corp – to time (including corresponding
provisions of succeeding regulations).
"Research and Development Service Agreement" means the agreement to be
entered into among the Partnership, ICOS Corp oration and TBC as of the Effective
Date, a copy of which is attached hereto as Exhibit B.
[ * ]
"TBC Partners" means TBC and
_____________
ICOS Corp – a Disclosing Partner, including, but not limited to, proprietary or
confidential information provided under the two Confidential Disclosure
Agreements (CDAs) dated [ * ] and [ * ] between ICOS Corp oration and TBC
regarding confidential information, other than information that (A) was
previously known to the Recipient (other than from a Disclosing Partner),
_____________
ICOS
Corp – disclosed will be treated
confidentially.
(c) This Section 2.7 shall supersede and cancel the two
Confidential Disclosure Agreements (CDAs) dated [ * ] and [ * ] between ICOS
Corp oration and TBC regarding confidential information.
(d) This Section 2.7 shall survive this Agreement and shall
continue in full force and effect
_____________
ICOS Corp – is no material and unauthorized use,
infringement or misappropriation of any of its rights in the Background
Technology, (e) it has provided to ICOS Corp oration a complete and accurate copy
of all third party agreements associated with the Background Technology, (f) set
forth in Attachment A to
_____________
ICOS Corp – facsimile number as the party changing its address specifies in a
notice to the other parties):
If to ICOS-LP or ICOS-GP:
ICOS Corp oration
22021 - 20th Avenue S.E.
Bothell, WA 98021
Attention: President
Phone: (425) 485-1900
Facsimile: (425) 485-1911
with a copy to:
_____________
dt 267453
;
|
 Perkins Coie
As referenced in this Agreement of Limited Partnership:
Perkins Coie – Corporation
22021 - 20th Avenue S.E.
Bothell, WA 98021
Attention: President
Phone: (425) 485-1900
Facsimile: (425) 485-1911
with a copy to:
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099
Attention: James R. Lisbakken, Esq.
Phone: (206) 583-8888
Facsimile: (206) 583-
_____________
dt 269857
;
Porter & Hedges
As referenced in this Agreement of Limited Partnership:
Porter & Hedges, L – Biotechnology Corporation
7000 Fannin, 20th Floor
Houston, TX 77030
Attention: President
Phone: (713) 796-8822
Facsimile: (713) 796-8232
with a copy to:
Porter & Hedges, L .L.P.
700 Louisiana, 35th Floor
Houston, TX 77002-2764
Attention: Robert G. Reedy, Esq.
Phone: (713) 226-0674
Facsimile: (713) 226-
_____________
dt 707661
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Business Ethics Policy
Business Ethics Policy (29K)
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1200103
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Consulting Agreement [Amendment No. 6]
Consulting Agreement [Amendment No. 6] (4K)
Doc #302148: Click preview link for longer preview.
SIXTH AMENDMENT TO CONSULTING AGREEMENT
This SIXTH AMENDMENT TO CONSULTING AGREEMENT (the "Amendment") is made as
of the 1st day of January 2003 (the "Effective Date"), by and between JOHN M.
PIETRUSKI, an individual residing at 27 Paddock Lane, Colts Neck, New Jersey
07722 ("Consultant"), and TEXAS BIOTECHNOLOGY CORPORATION, a Delaware
corporation located at 7000 Fannin Street, 20th Floor, Houston, Texas 77030 (the
"Corporation").
WHEREAS, the Corporation and Consultant have entered into that certain
Consulting Agreement, dated January 1, 1992 (the "Agreement"), as set forth in
Exhibit "A" attached hereto and incorporated herein by reference; and
WHEREAS, pursuant to the Agreement, the Corporation has retained
Consultant to provide consulting services to the Corporation with respect to
corporate governance, business development and other such matters; and
WHEREAS, the Corporation and Consultant desire to amend the Agreement as
herein set forth.
NOW, THEREFORE, for and in consideration of the foregoing and of the
302148
| John M. Pietruski;
| Texas Biotechnology Corporation
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Consulting Agreement [Amendment No. 5]
Consulting Agreement [Amendment No. 5] (4K)
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FIFTH AMENDMENT TO CONSULTING AGREEMENT
This FIFTH AMENDMENT TO CONSULTING AGREEMENT (the "Amendment") is made
as of the 1st day of January 2001 (the "Effective Date"), by and between JOHN M.
PIETRUSKI, an individual residing at 27 Paddock Lane, Colts Neck, New Jersey
07722 ("Consultant"), and TEXAS BIOTECHNOLOGY CORPORATION, a Delaware
corporation located at 7000 Fannin Street, Suite 1920, Houston, Texas 77030 (the
"Corporation").
WHEREAS, the Corporation and Consultant have entered into that certain
Consulting Agreement, dated January 1, 1992 (the "Agreement"), as set forth in
Exhibit "A" attached hereto and incorporated herein by reference; and
WHEREAS, pursuant to the Agreement, the Corporation has retained
Consultant to provide consulting services to the Corporation with respect to
corporate governance, business development and other such matters; and
WHEREAS, the Corporation and Consultant desire to amend the Agreement
as herein set forth.
NOW, THEREFORE, for and in consideration of the foregoing and of the
302172
| John M. Pietruski;
| Texas Biotechnology Corporation
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Termination Agreement
Termination Agreement (88K)
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TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is made and entered into
this 10th day of September, 2003, by and between Encysive Pharmaceuticals Inc.,
a Delaware corporation having its principal executive office at 6700 West Loop
South, Suite 400, Bellaire, Texas 77401 (hereinafter referred to as the
"Company"), and Terrance C. Coyne, M.D. (hereinafter referred to as the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive in an executive
capacity and the Executive desires to enter the Company's employ.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Executive hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms have the meanings
prescribed below:
AAA shall have the meaning assigned thereto in Section 13.13 hereof
Affiliate is used in this Agreement to define a relationship to a
person or entity and means a person or entity who, directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, such person or entity.
Agreement shall have the meaning assigned thereto in the preamble.
Annual Bonus shall have the meaning assigned thereto in Section 4.2
hereof.
Base Salary shall have the meaning assigned thereto in Section 4.1
hereof.
Board means the Board of Directors of the Company.
Bonus Payment shall have the meaning assigned thereto in Section 11.2
hereof.
Cause shall have the meaning assigned thereto in Section 5.3 hereof.
Change in Control of the Company shall be deemed to have occurred if
any of the events set forth in any one of the following paragraphs shall occur:
(a) any "person" (as defined in section 3(a)(9) of the Exchange
Act, and as such term is modified in sections 13(d) and 14(d) of the Exchange
Act), excluding the Company or any of its subsidiaries, a trustee or any
fiduciary holding securities under an employee benefit plan of the Company or
any of its subsidiaries, an underwriter temporarily holding securities pursuant
to an offering of such securities or a corporation owned, directly or
indirectly, by stockholders of
{PAGE}
the Company in substantially the same proportions as their ownership of the
Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 30% or more of the combined voting power of the Company's then
outstanding securities; or
(b) during any period of not more than two consecutive years,
individuals who at the beginning of such period constitute the Board and any new
director (other than a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in clause (a), (c)
or (d) of this definition) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof;
or
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (i) a merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity), in combination with the ownership of any trustee or other
fiduciary holder of securities under an employee benefit plan of the Company, at
least 50% of the combined voting power of the voting securities of the Company
or such surviving entity outstanding immediately after such merger or
consolidation, or (ii) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no person
acquires more than 50% of the combined voting power of the Company's then
outstanding securities; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets.
Notwithstanding the foregoing, no Change in Control shall be deemed to
have occurred if there is consummated any transaction or series of integrated
transactions immediately following which, in the judgment of the Compensation
Committee of the Board, the holders of the Common Stock, immediately prior to
such transaction or series of transactions continue to have the same
proportionate ownership in an entity which owns all or substantially all of the
assets of the Company immediately prior to such transaction or series of
transactions. Except during a Potential Change in Control of the Company, the
Board may (i) deem any other corporate event affecting the Company (other than
those described in clauses (a)-(d) of this definition) to be a "Change in
Control," and (ii) may amend this definition of "Change in Control" in
connection with an identical amendment being made to termination agreements
entered into by the Company and all of its senior executive officers.
Code means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated by the Internal Revenue Service thereunder, all as
in effect from time to time during the Employment Period.
Common Stock means the Company's common stock, par value $.05 per
share.
2
{PAGE}
Company means Encysive Pharmaceuticals Inc., a Delaware corporation,
the principal executive office of which is located at 6700 West Loop South,
Suite 400, Bellaire, Texas 77401.
Competing Business means any individual, business, firm, company,
partnership, joint venture, organization, or other entity that markets or has
entered clinical development of any product addressing the same disease target
as a product discovered by, or licensed to, the Company which is either (i) in
Phase III of clinical development, (ii) pending approval at U.S. Food & Drug
Administration or (iii) marketed by the Company or its licensee.
Confidential Information shall have the meaning assigned thereto in
Section 8.2 hereof.
Date of Termination means the earliest to occur of (i) the date of the
Executive's death or (ii) the date of receipt of the Notice of Termination, or
302130
|
Encysive Pharma
As referenced in this Termination Agreement:
Encysive Pharmaceuticals – 99.2
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is made and entered into
this 10th day of September, 2003, by and between Encysive Pharmaceuticals Inc.,
a Delaware corporation having its principal executive office at 6700 West Loop
South, Suite 400, Bellaire, Texas 77401 (hereinafter referred to as
_____________
Encysive Pharmaceuticals – to time during the Employment Period.
Common Stock means the Company's common stock, par value $.05 per
share.
2
{PAGE}
Company means Encysive Pharmaceuticals Inc., a Delaware corporation,
the principal executive office of which is located at 6700 West Loop South,
Suite 400, Bellaire, Texas 77401.
Competing
_____________
Encysive Pharmaceuticals – as follows (provided that notice of change of address shall be
deemed given only when received):
20
{PAGE}
If to the Company to:
Encysive Pharmaceuticals Inc.
6700 West Loop South, Suite 400
Bellaire, Texas 77401
Attention: Chief Executive Officer
Facsimile No.: (713) 782-8232
If to the Executive
_____________
Encysive Pharmaceuticals – Suite 400
Bellaire, Texas 77401
Attention: Chief Executive Officer
Facsimile No.: (713) 782-8232
If to the Executive to:
Dr. Terence C. Coyne
Encysive Pharmaceuticals Inc.
6700 West Loop South, Suite 400
Bellaire, Texas 77401
Facsimile No.: (713) 782-8232
or to such other names or addresses as
_____________
Encysive Pharmaceuticals – 24
{PAGE}
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first written above.
Encysive Pharmaceuticals Inc.
By: /s/ Bruce D. Given, M.D.
--------------------------------------
Bruce D. Given, M.D.,
President and Chief Executive Officer
Executive:
By: /s/ Terrance C.
_____________
dt 271654
| |
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Termination Agreement
Termination Agreement (89K)
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TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is made and entered into
this 2nd day of June, 2003, by and between Texas Biotechnology Corporation, a
Delaware corporation having its principal executive office at 6700 West Loop
South, Suite 400, Bellaire, Texas 77401 (hereinafter referred to as the
"Company"), and Derek J. Maetzold (hereinafter referred to as the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive in an executive
capacity and the Executive desires to enter the Company's employ.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Executive hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms have the meanings
prescribed below:
AAA shall have the meaning assigned thereto in Section 13.13 hereof
Affiliate is used in this Agreement to define a relationship to a
person or entity and means a person or entity who, directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, such person or entity.
Agreement shall have the meaning assigned thereto in the preamble.
Annual Bonus shall have the meaning assigned thereto in Section 4.2
hereof.
Base Salary shall have the meaning assigned thereto in Section 4.1
hereof.
Board means the Board of Directors of the Company.
Bonus Payment shall have the meaning assigned thereto in Section 11.2
hereof.
Cause shall have the meaning assigned thereto in Section 5.3 hereof.
Change in Control of the Company shall be deemed to have occurred if
any of the events set forth in any one of the following paragraphs shall occur:
(a) any "person" (as defined in section 3(a)(9) of the Exchange
Act, and as such term is modified in sections 13(d) and 14(d) of the Exchange
Act), excluding the Company or any of its subsidiaries, a trustee or any
fiduciary holding securities under an employee benefit plan of the Company or
any of its subsidiaries, an underwriter temporarily holding securities pursuant
to an offering of such securities or a corporation owned, directly or
indirectly, by stockholders of
{PAGE}
the Company in substantially the same proportions as their ownership of the
Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 30% or more of the combined voting power of the Company's then
outstanding securities; or
(b) during any period of not more than two consecutive years,
individuals who at the beginning of such period constitute the Board and any new
director (other than a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in clause (a), (c)
or (d) of this definition) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof;
or
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (i) a merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity), in combination with the ownership of any trustee or other
fiduciary holder of securities under an employee benefit plan of the Company, at
least 50% of the combined voting power of the voting securities of the Company
or such surviving entity outstanding immediately after such merger or
consolidation, or (ii) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no person
acquires more than 50% of the combined voting power of the Company's then
outstanding securities; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets.
Notwithstanding the foregoing, no Change in Control shall be deemed to
have occurred if there is consummated any transaction or series of integrated
transactions immediately following which, in the judgment of the Compensation
Committee of the Board, the holders of the Common Stock, immediately prior to
such transaction or series of transactions continue to have the same
proportionate ownership in an entity which owns all or substantially all of the
assets of the Company immediately prior to such transaction or series of
transactions. Except during a Potential Change in Control of the Company, the
Board may (i) deem any other corporate event affecting the Company (other than
those described in clauses (a)-(d) of this definition) to be a "Change in
Control," and (ii) may amend this definition of "Change in Control" in
connection with an identical amendment being made to termination agreements
entered into by the Company and all of its senior executive officers.
Code means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated by the Internal Revenue Service thereunder, all as
in effect from time to time during the Employment Period.
Common Stock means the Company's common stock, par value $.05 per
share.
2
{PAGE}
Company means Texas Biotechnology Corporation, a Delaware corporation,
the principal executive office of which is located at 6700 West Loop South,
Suite 400, Bellaire, Texas 77401.
Competing Business means any individual, business, firm, company,
partnership, joint venture, organization, or other entity that markets or has
entered clinical development of any product addressing the same disease target
as a product discovered by, or licensed to, the Company which is either (i) in
Phase III of clinical development, (ii) pending approval at U.S. Food & Drug
Administration or (iii) marketed by the Company or its licensee.
Confidential Information shall have the meaning assigned thereto in
Section 8.2 hereof.
Date of Termination means the earliest to occur of (i) the date of the
Executive's death or (ii) the date of receipt of the Notice of Termination, or
302131
|
Encysive Pharma
As referenced in this Termination Agreement:
Encysive Pharmaceuticals – as follows (provided that notice of change of address shall be
deemed given only when received):
20
{PAGE}
If to the Company to:
Encysive Pharmaceuticals Inc.
6700 West Loop South, Suite 400
Bellaire, Texas 77401
Attention: Chief Executive Officer
Facsimile No.: (713) 782-8232
If to the Executive
_____________
Encysive Pharmaceuticals – South, Suite 400
Bellaire, Texas 77401
Attention: Chief Executive Officer
Facsimile No.: (713) 782-8232
If to the Executive to:
Derek J. Maetzold
Encysive Pharmaceuticals Inc.
6700 West Loop South, Suite 400
Bellaire, Texas 77401
Facsimile No.: (713) 782-8232
or to such other names or addresses as
_____________
Encysive Pharmaceuticals – 24
{PAGE}
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first written above.
Encysive Pharmaceuticals Inc.
By: /s/ Bruce D. Given, M.D.
-------------------------------------
Bruce D. Given, M.D.,
President and Chief Executive Officer
Executive:
By: Derek J. Maetzold
-------------------------------------
_____________
dt 271655
;
Texas Biotechnology Corporation;
| Derek J. Maetzold
|
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Termination Agreement
Termination Agreement (91K)
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TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is made and entered into
this 21st day of March, 2003, by and between Texas Biotechnology Corporation, a
Delaware corporation having its principal executive office at 7000 Fannin,
Houston, Texas 77030 (hereinafter referred to as the "Company"), and Bruce D.
Given, M.D. (hereinafter referred to as the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive in an executive
capacity and the Executive desires to enter the Company's employ; and
WHEREAS, the Company and the Executive entered into an Executive
Employment Agreement dated March 21, 2002, which the parties desire to replace
with this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and obligations contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Executive hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms have the meanings
prescribed below:
1999 Plan shall have the meaning assigned thereto in Section 4.8(c)
hereof.
AAA shall have the meaning assigned thereto in Section 13.13 hereof.
Affiliate is used in this Agreement to define a relationship to a person
or entity and means a person or entity who, directly or indirectly through one
or more intermediaries, controls, is controlled by, or is under common control
with, such person or entity.
Agreement shall have the meaning assigned thereto in the preamble.
Annual Bonus shall have the meaning assigned thereto in Section 4.2
hereof.
Base Salary shall have the meaning assigned thereto in Section 4.1 hereof.
Beneficial Owner shall have the meaning assigned thereto in Rule 13(d)-3
under the Exchange Act; provided, however, and without limitation, that any
individual, corporation, partnership, group, association or other person or
entity that has the right to acquire any Voting Stock at any time in the future,
whether such right is (a) contingent or absolute or (b) exercisable presently or
at any time in the future, pursuant to any agreement or understanding
{PAGE}
or upon the exercise or conversion of rights, options or warrants, or otherwise,
shall be the Beneficial Owner of such Voting Stock.
Board means the Board of Directors of the Company.
Bonus Payment shall have the meaning assigned thereto in Section 11.2
hereof.
Cause shall have the meaning assigned thereto in Section 5.3 hereof.
Change in Control of the Company shall be deemed to have occurred if any
of the events set forth in any one of the following paragraphs shall occur:
(a) any "person" (as defined in section 3(a)(9) of the Exchange Act, and
as such term is modified in sections 13(d) and 14(d) of the Exchange Act),
excluding the Company or any of its subsidiaries, a trustee or any fiduciary
holding securities under an employee benefit plan of the Company or any of its
subsidiaries, an underwriter temporarily holding securities pursuant to an
offering of such securities or a corporation owned, directly or indirectly, by
stockholders of the Company in substantially the same proportions as their
ownership of the Company, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 30% or more of the combined voting power of the Company's
then outstanding securities; or
(b) during any period of not more than two consecutive years, individuals
who at the beginning of such period constitute the Board and any new director
(other than a director designated by a person who has entered into an agreement
with the Company to effect a transaction described in clause (a), (c) or (d) of
this definition) whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof; or
(c) the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than (i) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity), in combination with the ownership of any trustee or other fiduciary
holder of securities under an employee benefit plan of the Company, at least 50%
of the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
(ii) a merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no person acquires more than 50% of
the combined voting power of the Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the Company of all
or substantially all of the Company's assets.
Notwithstanding the foregoing, no Change in Control shall be deemed to
have occurred if there is consummated any transaction or series of integrated
transactions immediately following
2
{PAGE}
which, in the judgment of the Compensation Committee of the Board, the holders
of the Common Stock, immediately prior to such transaction or series of
transactions continue to have the same proportionate ownership in an entity
which owns all or substantially all of the assets of the Company immediately
prior to such transaction or series of transactions. Except during a Potential
Change in Control of the Company, the Board may (i) deem any other corporate
event affecting the Company (other than those described in clauses (a)-(d) of
this definition) to be a "Change in Control," and (ii) may amend this definition
of "Change in Control" in connection with an identical amendment being made to
termination agreements entered into by the Company and all of its senior
executive officers.
Code means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated by the Internal Revenue Service thereunder, all as
in effect from time to time during the Employment Period.
Common Stock means the Company's common stock, par value $.05 per share.
Company means Texas Biotechnology Corporation, a Delaware corporation, the
principal executive office of which is located at 7000 Fannin, Houston, Texas
77030.
Competing Business means any individual, business, firm, company,
302149
| | |
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| 2003 |
Termination Agreement
Termination Agreement (82K)
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TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is made and entered into
this 17th day of March, 2003, by and between Texas Biotechnology Corporation, a
Delaware corporation having its principal executive office at 7000 Fannin,
Houston, Texas 77030 (hereinafter referred to as the "Company"), and Richard A.
F. Dixon, Ph.D. (hereinafter referred to as the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive in an executive
capacity and the Executive desires to enter the Company's employ; and
WHEREAS, the Company and the Executive entered into an Amended and
Restated Employment Agreement dated July 15, 1990, which the parties desire to
replace with this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and obligations contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Executive hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms have the meanings
prescribed below:
AAA shall have the meaning assigned thereto in Section 13.13 hereof
Affiliate is used in this Agreement to define a relationship to a person
or entity and means a person or entity who, directly or indirectly through one
or more intermediaries, controls, is controlled by, or is under common control
with, such person or entity.
Agreement shall have the meaning assigned thereto in the preamble.
Annual Bonus shall have the meaning assigned thereto in Section 4.2
hereof.
Base Salary shall have the meaning assigned thereto in Section 4.1 hereof.
Beneficial Owner shall have the meaning assigned thereto in Rule 13(d)-3
under the Exchange Act; provided, however, and without limitation, that any
individual, corporation, partnership, group, association or other person or
entity that has the right to acquire any Voting Stock at any time in the future,
whether such right is (a) contingent or absolute or (b) exercisable presently or
at any time in the future, pursuant to any agreement or understanding or upon
the exercise or conversion of rights, options or warrants, or otherwise, shall
be the Beneficial Owner of such Voting Stock.
{PAGE}
Board means the Board of Directors of the Company.
Bonus Payment shall have the meaning assigned thereto in Section 11.2
hereof.
Cause shall have the meaning assigned thereto in Section 5.3 hereof.
Change in Control of the Company shall be deemed to have occurred if any
of the events set forth in any one of the following paragraphs shall occur:
(a) any "person" (as defined in section 3(a)(9) of the Exchange Act, and
as such term is modified in sections 13(d) and 14(d) of the Exchange Act),
excluding the Company or any of its subsidiaries, a trustee or any fiduciary
holding securities under an employee benefit plan of the Company or any of its
subsidiaries, an underwriter temporarily holding securities pursuant to an
offering of such securities or a corporation owned, directly or indirectly, by
stockholders of the Company in substantially the same proportions as their
ownership of the Company, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 30% or more of the combined voting power of the Company's
then outstanding securities; or
(b) during any period of not more than two consecutive years, individuals
who at the beginning of such period constitute the Board and any new director
(other than a director designated by a person who has entered into an agreement
with the Company to effect a transaction described in clause (a), (c) or (d) of
this definition) whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof; or
(c) the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than (i) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity), in combination with the ownership of any trustee or other fiduciary
holder of securities under an employee benefit plan of the Company, at least 50%
of the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
(ii) a merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no person acquires more than 50% of
the combined voting power of the Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the Company of all
or substantially all of the Company's assets.
Notwithstanding the foregoing, no Change in Control shall be deemed to
have occurred if there is consummated any transaction or series of integrated
transactions immediately following which, in the judgment of the Compensation
Committee of the Board, the holders of the Common Stock, immediately prior to
such transaction or series of transactions continue to have the same
proportionate ownership in an entity which owns all or substantially all of the
assets of
2
{PAGE}
the Company immediately prior to such transaction or series of transactions.
Except during a Potential Change in Control of the Company, the Board may (i)
deem any other corporate event affecting the Company (other than those described
in clauses (a)-(d) of this definition) to be a "Change in Control," and (ii) may
amend this definition of "Change in Control" in connection with an identical
amendment being made to termination agreements entered into by the Company and
all of its senior executive officers.
Code means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated by the Internal Revenue Service thereunder, all as
in effect from time to time during the Employment Period.
Common Stock means the Company's common stock, par value $.05 per share.
Company means Texas Biotechnology Corporation, a Delaware corporation, the
principal executive office of which is located at 7000 Fannin, Houston, Texas
77030.
Competing Business means any individual, business, firm, company,
partnership, joint venture, organization, or other entity that markets or has
302150
| Texas Biotechnology Corporation;
| Richard A. F. Dixon
|
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Full Doc
| 2003 |
Termination Agreement
Termination Agreement (72K)
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TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is made and entered into
this 20th day of March, 2003, by and between Texas Biotechnology Corporation, a
Delaware corporation having its principal executive office at 7000 Fannin,
Houston, Texas 77030 (hereinafter referred to as the "Company"), and Stephen L.
Mueller (hereinafter referred to as the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive in an executive
capacity and the Executive desires to enter the Company's employ.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and obligations contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Executive hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms have the meanings
prescribed below:
AAA shall have the meaning assigned thereto in Section 12.13 hereof
Affiliate is used in this Agreement to define a relationship to a person
or entity and means a person or entity who, directly or indirectly through one
or more intermediaries, controls, is controlled by, or is under common control
with, such person or entity.
Agreement shall have the meaning assigned thereto in the preamble.
Annual Bonus shall have the meaning assigned thereto in Section 4.2
hereof.
Base Salary shall have the meaning assigned thereto in Section 4.1 hereof.
Board means the Board of Directors of the Company.
Bonus Payment shall have the meaning assigned thereto in Section 11.2
hereof.
Cause shall have the meaning assigned thereto in Section 5.3 hereof.
Change in Control of the Company shall be deemed to have occurred if any
of the events set forth in any one of the following paragraphs shall occur:
(a) any "person" (as defined in section 3(a)(9) of the Exchange Act, and
as such term is modified in sections 13(d) and 14(d) of the Exchange Act),
excluding the Company or any of
{PAGE}
its subsidiaries, a trustee or any fiduciary holding securities under an
employee benefit plan of the Company or any of its subsidiaries, an underwriter
temporarily holding securities pursuant to an offering of such securities or a
corporation owned, directly or indirectly, by stockholders of the Company in
substantially the same proportions as their ownership of the Company, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 30% or
more of the combined voting power of the Company's then outstanding securities;
or
(b) during any period of not more than two consecutive years, individuals
who at the beginning of such period constitute the Board and any new director
(other than a director designated by a person who has entered into an agreement
with the Company to effect a transaction described in clause (a), (c) or (d) of
this definition) whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof; or
(c) the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than (i) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity), in combination with the ownership of any trustee or other fiduciary
holder of securities under an employee benefit plan of the Company, at least 50%
of the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
(ii) a merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no person acquires more than 50% of
the combined voting power of the Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the Company of all
or substantially all of the Company's assets.
Notwithstanding the foregoing, no Change in Control shall be deemed to
have occurred if there is consummated any transaction or series of integrated
transactions immediately following which, in the judgment of the Compensation
Committee of the Board, the holders of the Common Stock, immediately prior to
such transaction or series of transactions continue to have the same
proportionate ownership in an entity which owns all or substantially all of the
assets of the Company immediately prior to such transaction or series of
transactions. Except during a Potential Change in Control of the Company, the
Board may (i) deem any other corporate event affecting the Company (other than
those described in clauses (a)-(d) of this definition) to be a "Change in
Control," and (ii) may amend this definition of "Change in Control" in
connection with an identical amendment being made to termination agreements
entered into by the Company and all of its senior executive officers.
Code means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated by the Internal Revenue Service thereunder, all as
in effect from time to time during the Employment Period.
2
{PAGE}
Common Stock means the Company's common stock, par value $.05 per share.
Company means Texas Biotechnology Corporation, a Delaware corporation, the
principal executive office of which is located at 7000 Fannin, Houston, Texas
77030.
Competing Business means any individual, business, firm, company,
partnership, joint venture, organization, or other entity that markets or has
entered clinical development of any product addressing the same disease target
as a product discovered by, or licensed to, the Company which is either (i) in
Phase III of clinical development, (ii) pending approval at U.S. Food & Drug
Administration or (iii) marketed by the Company or its licensee.
Confidential Information shall have the meaning assigned thereto in
Section 8.2 hereof.
Date of Termination means the earliest to occur of (i) the date of the
Executive's death or (ii) the date of receipt of the Notice of Termination, or
302151
| Texas Biotechnology Corporation;
| Stephen L. Mueller
|
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| 2003 |
Termination Agreement
Termination Agreement (35K)
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TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is made and entered into
this ___ day of _____ by and between Texas Biotechnology Corporation, a Delaware
corporation with its principal office at 7000 Fannin, Houston, Texas 77030 (the
"Company"), and ______________ (the "Executive").
R E C I T A L S
A. The Company desires to enter into an agreement with the Executive
whereby severance benefits will be paid to the Executive on a change in control
of the Company and consequent actual or constructive termination of the
Executive's employment.
B. This Agreement sets forth the severance benefits that the Company
agrees that it will pay to the Executive if the Executive's employment with the
Company terminates under one of the circumstances described herein following a
change in control of the Company.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, the parties hereto agree as follows:
1. Term of Agreement. This Agreement shall be effective immediately on the
date hereof and shall continue in effect through _____; provided, however, that
commencing on _____ and each _____ thereafter, the term of this Agreement shall
automatically be extended for one additional year unless not later than _____ of
the preceding year, the Company shall have given notice that it does not wish to
extend this Agreement; provided, further, that notwithstanding any such notice
by the Company not to extend, this Agreement shall automatically be extended for
24 months beyond the term provided herein if a Change in Control (as defined in
Section 3 hereof) has occurred during the term of this Agreement.
2. Effect on Employment Rights. This Agreement is not part of any
employment agreement that the Company and the Executive may have entered.
Nothing in this Agreement shall confer upon the Executive any right to continue
in the employ of the Company or interfere with or restrict in any way the rights
of the Company, which are hereby expressly reserved, to terminate the Executive
for any reason, with or without cause.
The Executive agrees that, subject to the terms and conditions of this
Agreement, in the event of a potential Change in Control of the Company (as
defined below), the Executive will remain in the employ of the Company during
the pendency of any such potential Change in Control and for a period of one
year after the occurrence of an actual Change in Control. For this purpose, a
"potential Change in Control of the Company" shall be deemed to have occurred if
(a) the Company enters into an agreement the consummation of which would result
in the occurrence of a Change in Control, (b) any person (including the Company)
publicly announces an intention to take or consider taking action which if
consummated would constitute a Change
{PAGE}
in Control or (c) the Board of Directors of the Company (the "Board") adopts a
resolution to the effect that a potential Change in Control of the Company has
occurred.
3. Change in Control. For purposes of this Agreement, a "Change in
Control" of the Company shall be deemed to have occurred if any of the events
set forth in any one of the following paragraphs shall occur:
(a) any "person" (as defined in section 3(a)(9) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and as such term is
modified in sections 13(d) and 14(d) of the Exchange Act), excluding the
Company or any of its subsidiaries, a trustee or any fiduciary holding
securities under an employee benefit plan of the Company of any of its
subsidiaries, an underwriter temporarily holding securities pursuant to an
offering of such securities or a corporation owned, directly or
indirectly, by stockholders of the Company in substantially the same
proportions as their ownership of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 30% or
more of the combined voting power of the Company's then outstanding
securities; or
(b) during any period of not more than two consecutive years,
individuals who at the beginning of such period constitute the Board and
any new director (other than a director designated by a Person who has
entered into an agreement with the Company to effect a transaction
described in clause (a), (c) or (d) of this Section 3) whose election by
the Board or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning of the period
or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (i) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity), in combination with the ownership of
any trustee or other fiduciary holder of securities under an employee
benefit plan of the Company, at least 50% of the combined voting power of
the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (ii) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no person acquires more than 50% of the
combined voting power of the Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets.
Notwithstanding the foregoing, no Change in Control shall be deemed to
have occurred if there is consummated any transaction or series of
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Termination Agreement
Termination Agreement (38K)
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TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT, dated as of __________, ______ is made and
entered into by and between Texas Biotechnology Corporation, a Delaware
corporation with its principal office at 7000 Fannin, Houston, Texas 77030 (the
"Company"), and __________________ ("Executive").
RECITALS
A. The Company and the Executive have entered into an Employment
Agreement dated ___________ concerning the employment of the Executive as the
___________ and _______________________ of the Company.
B. Company desires to enter into an agreement with Executive whereby
severance benefits will be paid to Executive on a change in control of the
Company and consequent actual or constructive termination of Executive's
employment.
C. This Agreement sets forth the severance benefits which the Company
agrees that it will pay to the Executive if Executive's employment with the
Company terminates under one of the circumstances described herein following a
Change in Control of the Company.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, the parties hereto agree as follows:
1. Term of Agreement. This Agreement shall be effective immediately on
the date hereof and shall continue in effect through December 31, _____;
provided, however, that commencing on January 1, _____ and each January 1
thereafter, the term of this Agreement shall automatically be extended for one
additional year unless not later than September 30 of the preceding year, the
Company shall have given notice that it does not wish to extend this Agreement;
provided, further, that notwithstanding any such notice by the Company not to
extend this Agreement shall automatically be extended for 24 months beyond the
term provided herein if a Change in Control, as defined in Section 3 of this
Agreement has occurred during the term of this Agreement.
2. Effect on Employment Rights. This Agreement is not part of the
Employment Agreement or any other employment agreement that the Company and
Executive may have entered. Nothing in this Agreement shall confer upon
Executive any right to continue in the employ of the Company or interfere with
or restrict in any way the rights of the Company, which are hereby expressly
reserved, to terminate for any reason, with or without cause.
Executive agrees that, subject to the terms and conditions of this
Agreement, in the event of a potential change in control of the Company (as
defined below), Executive will remain in the employ of the Company during the
pendency of any such potential change in control and for a period of one year
after the occurrence of an actual Change in Control. For this purpose, a
"potential change in control of the Company" shall be deemed to have occurred if
(a) the Company enters into an agreement the consummation of which would result
in the occurrence of a Change in Control, (b) any person (including the Company)
publicly announces an intention to take or consider taking action which if
consummated would constitute a Change in Control or (c) the Board of Directors
of the Company (the "Board") adopts a resolution to the effect that a potential
change in control of the Company has occurred.
3. Change in Control. For purposes of this Agreement, a "Change in
Control" of the Company shall be deemed to have occurred if any of the events
set forth in any one of the following paragraphs shall occur:
{PAGE}
(a) any "person" (as defined in section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and as
such term is modified in sections 13(d) and 14(d) of the Exchange Act),
excluding the Company or any of its subsidiaries, a trustee or any
fiduciary holding securities under an employee benefit plan of the
Company of any of its subsidiaries, an underwriter temporarily holding
securities pursuant to an offering of such securities or a corporation
owned, directly or indirectly, by stockholders of the Company in
substantially the same proportions as their ownership of the Company,
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 30% or more of the combined voting power of the Company's
then outstanding securities; or
(b) during any period of not more than two consecutive years,
individuals who at the beginning of much period constitute the Board
and any new director (other than a director designated by a Person who
has entered into an agreement with the Company to effect a transaction
described in clause (a), (c) or (d) of this paragraph) whose election
by the Board or nomination for election by the Company's stockholders
was approved by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof; or
(c) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (i)
a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity), in combination with the
ownership of any trustee or other fiduciary holder of securities under
an employee benefit plan of the Company, at least 50% of the combined
voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or
(ii) a merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no person acquires
more than 50% of the combined voting power of the Company's then
outstanding securities; or
(d) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
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