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Title: |
Agreement and Plan of Merger |
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Entities: |
BNY Capital Markets, Inc.; Citibank, NA; Dendreon Corp.; Genentech, Inc.; Mellon Investor Services LLC; Cooley Godward LLP; Stoel Rives; Seahawk Acquisition, Inc.; Charger Project LLC; Corvas International, Inc. |
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Date: |
2003 |
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Size: |
Preview shows 21KB of 237KB total |
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Price: |
$87 |
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ID: |
#304122 |
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AGREEMENT AND PLAN OF MERGER
______________________
AMONG
DENDREON CORPORATION
AND
SEAHAWK ACQUISITION, INC.
AND
CHARGER PROJECT LLC
AND
CORVAS INTERNATIONAL, INC
______________________
DATED FEBRUARY 24, 2003
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I THE COMBINATION...............................................2
1.01. Effective Time of the Merger......................................2
1.02. Closing...........................................................2
1.03. Effects of the Merger.............................................2
1.04. The LLC Merger....................................................3
1.05. Effects of the Merger.............................................3
ARTICLE II CONVERSION OF SECURITIES......................................4
2.01. Conversion of Capital Stock.......................................4
2.02. Conversion of Securities in LLC Merger............................5
2.03. Exchange of Certificates..........................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF CORVAS......................7
3.01. Organization of Corvas............................................7
3.02. Corvas Capital Structure..........................................7
3.03. Authority, No Conflict, Required Filings and Consents.............8
3.04. SEC Filings; Financial Statements.................................9
3.05. No Undisclosed Liabilities.......................................10
3.06. Absence of Certain Changes or Events.............................10
3.07. Taxes............................................................11
3.08. Tangible Properties..............................................11
3.09. Intellectual Property............................................12
3.10. Agreements, Contracts, and Commitments...........................14
3.11. Litigation.......................................................15
3.12. Environmental Matters............................................15
3.13. Regulatory Compliance............................................16
3.14. Employee Benefit Plans...........................................18
3.15. Compliance with Laws.............................................19
3.16. Interested Party Transactions....................................19
3.17. No Existing Discussions..........................................19
3.18. No Secured Debt..................................................20
3.19. Opinion of Financial Advisor.....................................20
i
{PAGE}
3.20. Corvas' Tax Representation Relating to Reorganization............20
3.21. Insurance........................................................20
3.22. Employment Matters...............................................20
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF DENDREON, SUB AND LLC......21
4.01. Organization of Dendreon, Sub and LLC............................21
4.02. Dendreon Capital Structure.......................................21
4.03. Authority, No Conflict, Required Filings and Consents............22
4.04. SEC Filings; Financial Statements................................23
4.05. No Undisclosed Liabilities.......................................24
4.06. Absence of Certain Changes or Events.............................24
4.07. Taxes............................................................25
4.08. Tangible Properties..............................................25
4.09. Intellectual Property............................................26
4.10. Agreements, Contracts, and Commitments...........................28
4.11. Litigation.......................................................29
4.12. Environmental Matters............................................29
4.13. Regulatory Compliance............................................30
4.14. Employee Benefit Plans...........................................32
4.15. Compliance with Laws.............................................33
4.16. Interested Party Transactions....................................33
4.17. No Existing Discussions..........................................33
4.18. No Secured Debt..................................................33
4.19. Opinion of Financial Advisor.....................................34
4.20. Dendreon's Tax Representation Relating to Reorganization.........34
4.21. Insurance........................................................34
4.22. Employment Matters...............................................34
4.23. Ownership and Interim Operations of Sub and LLC..................34
ARTICLE V CONDUCT OF BUSINESS..........................................35
5.01. Covenants of Dendreon and Corvas.................................35
5.02. Cooperation......................................................37
ARTICLE VI ADDITIONAL AGREEMENTS AND COVENANTS..........................37
6.01. No Solicitation by Corvas........................................37
ii
{PAGE}
6.02. No Solicitation by Dendreon......................................38
6.03. Joint Proxy Statement; Registration Statement....................40
6.04. Access to Information............................................41
6.05. Corvas Stockholders' Meetings...................................41
6.06. Dendreon Stockholders' Meetings.................................43
6.07. Legal Conditions to Merger.......................................44
6.08. Payment of Taxes.................................................44
6.09. Affiliates.......................................................44
6.10. Public Disclosure................................................44
6.11. Tax-Free Reorganization..........................................44
6.12. NASDAQ Quotation.................................................45
6.13. Stock Plans and Other Options....................................45
6.14. Consents.........................................................47
6.15. Brokers or Finders...............................................47
6.16. Employee Benefits; Employee Issues...............................47
6.17. Reports..........................................................48
6.18. Notification of Certain Matters..................................48
6.19. Additional Agreements; Reasonable Efforts........................49
6.20. Continuing Indemnification.......................................49
6.21. Board of Directors of Dendreon...................................49
ARTICLE VII CONDITIONS TO MERGER.........................................50
7.01. Conditions to Each Party's Obligation To Effect the Merger.......50
7.02. Additional Conditions to Obligations of Dendreon and Sub.........50
7.03. Additional Conditions to Obligations of Corvas...................51
ARTICLE VIII TERMINATION AND AMENDMENT....................................52
8.01. Termination......................................................52
8.02. Effect of Termination............................................54
8.03. Fees and Expenses................................................54
8.04. Amendment........................................................56
8.05. Extension; Waiver................................................56
ARTICLE IX MISCELLANEOUS................................................56
9.01. Nonsurvival of Representations, Warranties, and Agreements.......56
iii
{PAGE}
9.02. Notices..........................................................56
9.03. Interpretation...................................................57
9.04. Counterparts.....................................................57
9.05. Entire Agreement, No Third Party Beneficiaries...................57
9.06. Governing Law....................................................58
9.07. Assignment.......................................................58
9.08. Definitions......................................................58
iv
{PAGE}
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated February 24,
2003, is by and among DENDREON CORPORATION, a Delaware corporation,
("Dendreon"), SEAHAWK ACQUISITION, INC., a Delaware corporation and a wholly
owned subsidiary of Dendreon ("Sub"), CHARGER PROJECT LLC, a Delaware limited
liability company of which Dendreon is the sole member ("LLC") and CORVAS
INTERNATIONAL, INC., a Delaware corporation, ("Corvas").
WHEREAS, the Boards of Directors of each of Dendreon, Sub, and Corvas
and the sole member of LLC deem it advisable and in the best interest of each
entity and its respective stockholders or interest holders that Dendreon and
Corvas combine in order to advance the long-term business interests of Dendreon
and Corvas;
WHEREAS, the strategic combination of Dendreon and Corvas shall be
effected in accordance with the Delaware General Corporation Law (the "Delaware
Law") and the terms of this Agreement through a transaction in which (i) Sub
will merge with and into Corvas (the "Merger"), Corvas will be the surviving
corporation in the Merger and will become a wholly owned subsidiary of Dendreon,
and the stockholders of Corvas will become stockholders of Dendreon, and (ii)
Corvas, as the surviving corporation in the Merger, will merge with and into LLC
(the "LLC Merger"), and LLC will be the surviving entity in the LLC Merger (the
Merger and the LLC Merger being herein referred to as the "Combination";
WHEREAS, the Board of Directors of Corvas (i) has unanimously
determined that the Combination is advisable and consistent with and in
furtherance of the long-term business strategy of Corvas and fair to, and in the
best interests of Corvas and its stockholders, (ii) has unanimously determined
that this Agreement is advisable and has approved this Agreement, the
Combination and the other transactions contemplated by this Agreement, and (iii)
has unanimously determined to recommend that the stockholders of Corvas adopt
this Agreement.
WHEREAS, the Board of Directors of Dendreon (i) has unanimously
determined that the Combination is advisable and consistent with and in
furtherance of the long-term business strategy of Dendreon and is fair to, and
in the best interests of, Dendreon and its stockholders, (ii) has unanimously
approved this Agreement, the Combination and the other transactions contemplated
by this Agreement, and (iii) has unanimously determined to recommend that the
stockholders of Dendreon approve the issuance of shares of Dendreon Common Stock
in connection with the Merger (the "Share Issuance").
WHEREAS, for Federal income tax purposes, it is intended that the
Combination shall qualify as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and that
this Agreement shall constitute a plan of reorganization within the meaning of
Sections 1.368-2(g) and 1.368-3(a) of the Treasury Regulations;
WHEREAS, concurrently with the execution of this Agreement, (i) as a
condition and inducement to Dendreon's willingness to enter into this Agreement,
certain stockholders of Corvas are entering into a Lockup and Voting Agreement
whereby such stockholders have agreed to vote their shares of Corvas Common
Stock in favor of the adoption of this Agreement
{PAGE}
and as to certain other matters and (ii) as a condition and inducement to
Corvas' willingness to enter into this Agreement, certain stockholders of
Dendreon are entering into a substantially similar Lockup and Voting Agreement
whereby such stockholders have agreed to vote their shares of capital stock of
Dendreon in favor of the Share Issuance and as to certain other matters;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants, and agreements set forth herein and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, the parties hereby agree
as follows:
ARTICLE I
THE COMBINATION
1.01. Effective Time of the Merger. Subject to the provisions of this
Agreement, a certificate of merger giving effect to the agreement of the parties
described in this Article I (the "Certificate of Merger"), shall be duly
executed and acknowledged by the Continuing Corporation (as defined in Section
1.03), and thereafter delivered to the Secretary of State of the State of
Delaware, for filing, as provided in the Delaware Law, as soon as practicable on
or after the Closing Date (as defined in Section 1.02). The Merger shall become
effective upon the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware or at such time thereafter as is provided in the
Certificate of Merger (the "Effective Time").
1.02. Closing. The closing of the Merger (the "Closing") will take
place at 9:00 a.m., Pacific time, on a date to be specified by Dendreon and
Corvas (the "Closing Date"), which shall be no later than the second business
day after satisfaction, or written waiver by the party or parties having the
benefit of such conditions, of all the conditions set forth in Article VII
(other than those conditions that by their nature are to be satisfied at the
Closing, but subject to the satisfaction or waiver of such conditions), at the
offices of Stoel Rives LLP, Seattle, Washington, unless another date or place is
agreed to in writing by Dendreon and Corvas. All actions taken at the Closing
shall be deemed to have been taken simultaneously at the time the last of any
such actions is taken or completed.
1.03. Effects of the Merger.
(a) At the Effective Time (i) the separate existence of Sub shall cease
and Sub shall be merged with and into Corvas, with Corvas as the surviving
corporation in the Merger (Sub and Corvas are sometimes referred to below as the
"Constituent Corporations" and Corvas is sometimes referred to below as the
"Continuing Corporation"), (ii) the Certificate of Incorporation of Corvas shall
be amended so that Section IV of such Certificate of Incorporation reads in its
entirety as follows: "The total number of shares of all classes of stock which
the Corporation shall have authority to issue is 1,000, all of which shall
consist of Common Stock, par value $0.01 per share," and as so amended, such
Certificate of Incorporation shall be the Certificate of Incorporation of the
Continuing Corporation, and (iii) the Bylaws of Corvas as in effect immediately
prior to the Effective Time shall be the Bylaws of the Continuing Corporation.
2
{PAGE}
(b) At and after the Effective Time, the Continuing Corporation shall
possess all the rights, privileges, powers, and franchises of a public as well
as of a private nature, and be subject to all the restrictions, disabilities,
and duties of each of the Constituent Corporations; and all and singular rights,
privileges, powers, and franchises of each of the Constituent Corporations, and
all property, real, personal, and mixed, and all debts due to either of the
Constituent Corporations on whatever account, as well as for stock subscriptions
and all other things in action or belonging to each of the Constituent
Corporations, shall be vested in the Continuing Corporation, and all property,
rights, privileges, powers, and franchises, and all and every other interest
shall be thereafter as effectually the property of the Continuing Corporation as
they were of the Constituent Corporations, and the title to any real estate
vested by deed or otherwise, in either of the Constituent Corporations, shall
not revert or be in any way impaired; but all rights of creditors and all liens
upon any property of either of the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities, and duties of the Constituent
Corporations shall thereafter attach to the Continuing Corporation, and may be
enforced against it to the same extent as if such debts and liabilities had been
incurred by it.
1.04. The LLC Merger. Immediately following the Effective Time of the
Merger, Dendreon shall cause LLC to file with the Secretary of State of the
State of Delaware a properly executed certificate of merger for the LLC Merger
(the "LLC Certificate of Merger") conforming to the requirements of the Delaware
Law. The LLC Merger shall become effective at the time the LLC Certificate of
Merger is filed with the Secretary of State of the State of Delaware.
1.05. Effects of the LLC Merger.
(a) At the time at which the LLC Merger is filed with the Secretary of
State of Delaware, as described in Section 1.04 (the "LLC Effective Time"), (i)
the separate existence of Corvas shall cease and Corvas shall be merged with and
into LLC, with LLC as the surviving entity in the LLC Merger (LLC and Corvas are
sometimes referred to below as the "LLC Constituent Entities" and LLC is
sometimes referred to below as the "Continuing LLC"), and (ii) the Certificate
of Formation and the Operating Agreement of LLC as in effect immediately prior
to the Effective Time shall be unchanged by the LLC Merger.
(b) At and after the LLC Effective Time, the Continuing LLC shall
possess all the rights, privileges, powers, and franchises of a public as well
as of a private nature, and be subject to all the restrictions, disabilities,
and duties of each of the LLC Constituent Entities; and all and singular rights,
privileges, powers, and franchises of each of the LLC Constituent Entities, and
all property, real, personal, and mixed, and all debts due to either of the LLC
Constituent Entities on whatever account, and all other things in action or
belonging to each of the LLC Constituent Entities, shall be vested in the
Continuing LLC, and all property, rights, privileges, powers, and franchises,
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