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Title: |
Agreement and Plan of Merger |
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Entities: |
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Date: |
2006 |
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Preview shows 48KB of 189KB total |
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Price: |
$47 |
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ID: |
#2554682 |
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Start of Preview |
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AGREEMENT AND PLAN OF MERGER
by and among
ELI LILLY AND COMPANY,
TOUR MERGER SUB, INC.
and
ICOS CORPORATION
Dated as of October 16, 2006
Table of Contents
| Page | ||||
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ARTICLE I |
DEFINITIONS | 1 | ||
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ARTICLE II |
THE MERGER | 9 | ||
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Section 2.1 |
The Merger | 9 | ||
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Section 2.2 |
Closing | 9 | ||
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Section 2.3 |
Effective Time | 10 | ||
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Section 2.4 |
Articles of Incorporation and Bylaws. | 10 | ||
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Section 2.5 |
Directors and Officers. | 10 | ||
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ARTICLE III |
MERGER CONSIDERATION; CONVERSION OR CANCELLATION OF COMPANY SHARES IN THE MERGER | 11 | ||
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Section 3.1 |
Effect on Capital Stock | 11 | ||
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Section 3.2 |
Paying Agent; Exchange of Company Certificates. | 12 | ||
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Section 3.3 |
Equity Awards. | 14 | ||
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ARTICLE IV |
REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 15 | ||
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Section 4.1 |
Organization | 15 | ||
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Section 4.2 |
Capitalization. | 15 | ||
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Section 4.3 |
Subsidiaries. | 16 | ||
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Section 4.4 |
Authority | 17 | ||
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Section 4.5 |
Consents and Approvals; No Violations. | 18 | ||
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Section 4.6 |
SEC Reports and Financial Statements. | 18 | ||
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Section 4.7 |
Absence of Certain Changes or Events | 19 | ||
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Section 4.8 |
No Undisclosed Liabilities | 20 | ||
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Section 4.9 |
Benefit Plans; Employees and Employment Practices. | 21 | ||
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Section 4.10 |
Material Contracts. | 24 | ||
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Section 4.11 |
Insurance | 25 | ||
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Section 4.12 |
Litigation | 25 | ||
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Section 4.13 |
Compliance with Applicable Law. | 25 | ||
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Section 4.14 |
Taxes and Tax Returns. | 26 | ||
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Section 4.15 |
Hazardous Substances | 28 | ||
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Section 4.16 |
State Takeover Statutes | 28 | ||
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Section 4.17 |
Rights Agreement | 29 | ||
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Section 4.18 |
Intellectual Property. | 29 | ||
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Section 4.19 |
Information Technology | 32 | ||
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Section 4.20 |
Regulatory Compliance. | 32 | ||
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Section 4.21 |
Properties. | 33 | ||
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Section 4.22 |
Absence of Indemnifiable Claims, etc | 34 | ||
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Section 4.23 |
Opinion of Financial Advisor | 34 | ||
i
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Section 4.24 |
Board Approval | 34 | ||
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Section 4.25 |
Voting Requirements | 35 | ||
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Section 4.26 |
Brokers and Finders | 35 | ||
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Section 4.27 |
Information Supplied | 35 | ||
| ARTICLE V | REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB | 35 | ||
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Section 5.1 |
Organization | 35 | ||
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Section 5.2 |
Authority | 36 | ||
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Section 5.3 |
Consents and Approvals; No Violations. | 36 | ||
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Section 5.4 |
Information Supplied | 36 | ||
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Section 5.5 |
Financing | 37 | ||
| ARTICLE VI | COVENANTS | 37 | ||
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Section 6.1 |
Covenants of the Company | 37 | ||
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Section 6.2 |
Covenants of Parent and Merger Sub | 40 | ||
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Section 6.3 |
No Solicitation. | 41 | ||
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Section 6.4 |
Company Shareholder Meeting; Preparation of the Proxy Statement. | 43 | ||
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Section 6.5 |
Access to Information. | 44 | ||
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Section 6.6 |
Reasonable Best Efforts. | 44 | ||
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Section 6.7 |
State Anti-Takeover Statutes | 45 | ||
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Section 6.8 |
Indemnification; Insurance. | 46 | ||
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Section 6.9 |
Certain Litigation | 47 | ||
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Section 6.10 |
Notification of Certain Matters | 48 | ||
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Section 6.11 |
Tax Covenants. | 48 | ||
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Section 6.12 |
Benefits and Other Employee Matters. | 49 | ||
| ARTICLE VII | CONDITIONS | 51 | ||
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Section 7.1 |
Conditions to Each Partys Obligation to Effect the Merger | 51 | ||
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Section 7.2 |
Conditions to Parent and Merger Subs Obligation to Effect the Merger | 51 | ||
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Section 7.3 |
Conditions to the Companys Obligation to Effect the Merger | 52 | ||
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Section 7.4 |
Frustration of Closing Conditions | 52 | ||
| ARTICLE VIII | TERMINATION AND AMENDMENT | 53 | ||
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Section 8.1 |
Termination | 53 | ||
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Section 8.2 |
Effect of Termination | 54 | ||
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Section 8.3 |
Fees and Expenses | 54 | ||
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Section 8.4 |
Termination Fee. | 55 | ||
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Section 8.5 |
Extension; Waiver | 55 | ||
| ARTICLE IX | MISCELLANEOUS | 56 | ||
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Section 9.1 |
Nonsurvival of Representations and Warranties | 56 | ||
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Section 9.2 |
Notices | 56 | ||
ii
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Section 9.3 |
Interpretation. | 57 | ||
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Section 9.4 |
Counterparts | 57 | ||
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Section 9.5 |
Entire Agreement; No Third Party Beneficiaries. | 58 | ||
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Section 9.6 |
Governing Law | 58 | ||
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Section 9.7 |
Publicity | 58 | ||
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Section 9.8 |
Assignment | 58 | ||
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Section 9.9 |
Enforcement | 58 | ||
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Section 9.10 |
Severability | 59 | ||
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Section 9.11 |
Modification | 59 |
iii
AGREEMENT AND PLAN OF MERGER (this Agreement) dated as of October 16, 2006, by and among ELI LILLY AND COMPANY, an Indiana corporation (Parent), TOUR MERGER SUB, INC., a Delaware corporation and a wholly owned subsidiary of Parent (Merger Sub), and ICOS CORPORATION, a Washington corporation (the Company).
WHEREAS, the Boards of Directors of Parent and the Company each have determined that a business combination between Parent and the Company is in the best interests of their respective companies and shareholders and accordingly have agreed to effect the Merger provided for herein upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Agreement shall have the meaning set forth in the Preamble hereto.
Articles of Merger shall have the meaning set forth in Section 2.3.
Bankruptcy and Equity Exception shall have the meaning set forth in Section 4.4.
Benefit Plan shall have the meaning set forth in Section 4.9(a).
Business Day shall mean any day, other than a Saturday, Sunday or one on which banks are authorized by Law to close in New York, New York.
Closing shall have the meaning set forth in Section 2.2.
Closing Date shall have the meaning set forth in Section 2.2.
Code shall mean the Internal Revenue Code of 1986, as amended. All citations to provisions of the Code, or to the Treasury Regulations promulgated thereunder, shall include any amendments thereto and any substitute or successor provisions thereto.
Commonly Controlled Entity shall have the meaning set forth in Section 4.9(d).
Company shall have the meaning set forth in the Preamble hereto.
Company Adverse Recommendation Change shall have the meaning set forth in Section 6.3(b).
Company Certificate shall have the meaning set forth in Section 3.1(c).
Company Charter Documents shall mean (i) the Restated Articles of Incorporation of the Company filed with the Secretary of State of Washington on September 27, 2005 and (ii) the Amended and Restated Bylaws of the Company adopted on April 29, 2005, each as amended through the date of this Agreement.
Company Disclosure Schedule shall have the meaning set forth in Article IV.
Company Employees shall have the meaning set forth in Section 6.12(c).
Company Equity Plans means the ICOS Corporation 1999 Long-Term Incentive Plan, as amended from time to time, the ICOS Corporation 1991 Stock Option Plan for Non-employee Directors, as amended from time to time, and the ICOS Corporation 1989 Stock Option Plan, as amended from time to time, and any other plan or arrangement under which the Company or its Subsidiaries grant equity-based awards.
Company Filed SEC Documents shall have the meaning set forth in Section 4.7.
Company Financial Advisor shall have the meaning set forth in Section 4.23.
Company Intellectual Property shall have the meaning set forth in Section 4.18(c).
Company Material Adverse Effect shall mean a fact, event or circumstance which has had, or is reasonably likely to have, together with all similar or related facts, events and circumstances, a material adverse effect on the condition (financial or otherwise), business, properties, assets or results of operations of the Company and its Subsidiaries taken as a whole (provided that in determining whether a fact, event or circumstance existing at Lilly ICOS LLC is a Company Material Adverse Effect for purposes of this definition, both the magnitude of such effect and its relative impact on the Company and its Subsidiaries shall be considered after taking into account the Companys proportionate equity interest in Lilly ICOS LLC) or which would prevent the performance by the Company of its material obligations hereunder or prevent or delay beyond the Termination Date the ability of the Company to consummate the Merger; provided, however, that any such effect resulting from or arising out of any of the following items shall not be considered in determining whether a Company Material Adverse Effect has occurred: (i) any change in Law or GAAP, (ii) general economic or financial market conditions, (iii) general changes or developments in the biotechnology or pharmaceutical industries that do not have a materially disproportionate effect (relative to other industry participants) on the Company and its Subsidiaries taken as a whole, (iv) an act of war or terrorism, which act of terrorism does not have a disproportionate effect (relative to other industry participants) on the Company and its Subsidiaries taken as a whole, (v) the execution, announcement and performance of this Agreement, or any
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