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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Amgen, Inc.; Citibank, NA; Tularik Inc.; Wells Fargo Bank Minnesota, NA; Nasdaq Stock Market Inc.; Cooley Godward LLP

Date:

2004

Size:

Preview shows 62KB of 308KB total

Price:

$58

ID:

#332165

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AGREEMENT AND PLAN OF MERGER

BY AND AMONG

AMGEN INC.,

ARROW ACQUISITION, LLC

AND

TULARIK INC.

DATED AS OF MARCH 28, 2004

TABLE OF CONTENTS


ARTICLE 1 The Merger			1
	1.1	The Merger	1
	1.2	Closing	2
	1.3	Effect of the Merger	2
	1.4	Certificate of Formation; Limited Liability Company Operating Agreement	2
	1.5	Managing Board/Officers	2
ARTICLE 2 Effect of the Merger on the Capital Stock of the Constituent Corporations; Exchange of Certificates			3
	2.1	Conversion of Securities	3
	2.2	Exchange of Certificates.	4
	2.3	Stock Transfer Books	7
	2.4	Stock Options	7
	2.5	Employee Stock Purchase Plan	8
	2.6	Company Warrants	8
ARTICLE 3 Representations and Warranties of the Company			9
	3.1	Organization, Qualification and Corporate Power	9
	3.2	Subsidiaries	9
	3.3	Certificate of Incorporation and Bylaws; Corporate Books and Records	10
	3.4	Capitalization	10
	3.5	Authority; Authentication	11
	3.6	No Conflict; Required Filings and Consents.	12
	3.7	Permits; Compliance With Law	13
	3.8	SEC Filings; Financial Statements.	13
	3.9	Absence of Certain Changes or Events	14
	3.10	Employee Benefit Plans.	15
	3.11	Labor and Other Employment Matters.	18
	3.12	Tax Treatment	20
	3.13	Contracts	20
	3.14	Litigation	23
	3.15	Environmental Matters	23
	3.16	Intellectual Property	24
	3.17	Supply Arrangements	27
	3.18	Taxes.	27
	3.19	Insurance	29
	3.20	Properties.	29
	3.21	Regulatory Compliance	31
	3.22	Product Registration Files	32
	3.23	Opinion of Financial Advisor	32
	3.24	Vote Required	32
	3.25	Brokers	33
	3.26	Sarbanes-Oxley Act.	33
	3.27	Disclosure	34


	3.28	Registration Statement and Proxy Statement Disclosure	34
	3.29	Affiliate Agreements	34
	3.30	Cumbre	34
ARTICLE 4 Representations and Warranties of Parent and Merger Sub			34
	4.1	Organization and Qualification; Subsidiaries	34
	4.2	Certificate of Incorporation and Bylaws	35
	4.3	Authority Relative to This Agreement	35
	4.4	No Conflict; Required Filings and Consents.	35
	4.5	Authorization of Shares	36
	4.6	SEC Filings; Financial Statements.	36
	4.7	Ownership of Merger Sub	37
	4.8	Operation of Merger Sub	37
	4.9	Brokers	37
	4.10	Registration Statement and Proxy Statement Disclosure	37
ARTICLE 5 Covenants			37
	5.1	Conduct of Business by the Company Pending the Closing	37
	5.2	Tax-Free Reorganization Treatment	44
	5.3	Control of Other Partys Business	44
ARTICLE 6 Additional Agreements			44
	6.1	Registration Statement; Proxy Statement	44
	6.2	Stockholders Meeting	46
	6.3	Access to Information; Confidentiality.	46
	6.4	No Solicitation of Transactions.	47
	6.5	Appropriate Action; Consents; Filings.	50
	6.6	Letters of Companys Accountants	52
	6.7	Certain Notices	52
	6.8	Public Announcements	52
	6.9	NASDAQ Listing	52
	6.10	Employee Benefit Matters	53
	6.11	Indemnification, Exculpation and Insurance	55
	6.12	Affiliate Letters	56
	6.13	Stock Award Matters.	56
	6.14	Stockholder Litigation	56
	6.15	Termination of Stock Purchase Agreement	57
	6.16	Insurance Policies	57
	6.17	WARN Act	57
	6.18	Parent to Vote in Support of Merger	58
	6.19	Section 16 Matters	58
ARTICLE 7 Closing Conditions			58
	7.1	Conditions to Obligations of Each Party Under This Agreement	58
	7.2	Additional Conditions to Obligations of Parent and Merger Sub	59
	7.3	Additional Conditions to Obligations of the Company	60


ARTICLE 8 Termination, Amendment and Waiver			61
	8.1	Termination	61
	8.2	Effect of Termination; Limitation on Liability	63
	8.3	Amendment	65
	8.4	Waiver	65
	8.5	Fees and Expenses	65
ARTICLE 9 General Provisions			65
	9.1	Non-Survival of Representations and Warranties	65
	9.2	Notices	66
	9.3	Certain Definitions	67
	9.4	Terms Defined Elsewhere	74
	9.5	Headings	75
	9.6	Severability	75
	9.7	Interpretation	75
	9.8	Entire Agreement	76
	9.9	Assignment	76
	9.10	Parties in Interest	76
	9.11	Mutual Drafting	76
	9.12	Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury	76
	9.13	Specific Performance	77
	9.14	Disclosure	77
	9.15	Counterparts	78



Schedule A	List of Employees Executing Employment Agreements

Schedule B	List of Stockholders Executing Voting Agreement

Schedule C	Stock Options

Exhibit A	Form of Affiliate Agreement	80

Exhibit B	Parent Tax Matters Certificate	85

Exhibit C	Company Tax Matters Certificate	90

iii

AGREEMENT AND PLAN OF MERGER, dated as of March 28, 2004 (this Agreement), by and among AMGEN INC., a Delaware corporation (Parent), ARROW ACQUISITION, LLC, a Delaware limited liability company wholly-owned by Parent (Merger Sub), and TULARIK INC., a Delaware corporation (the Company).

WHEREAS, the respective Boards of Directors of Parent and the Company have approved and declared advisable this Agreement and the merger of the Company with and into the Merger Sub (the Merger) upon the terms and subject to the conditions of this Agreement and in accordance with the Delaware General Corporation Law (the DGCL) and the Delaware Limited Liability Company Act (the LLC Act);

WHEREAS, the Board of Managers of Merger Sub has approved this Agreement and the Merger upon the terms and subject to the conditions of this Agreement and in accordance with the DGCL and the LLC Act;

WHEREAS, the respective Boards of Directors of Parent and the Company have determined that the Merger is in the best interest of their respective stockholders;

WHEREAS, the Companys goodwill and workforce are material inducements for Parent and Merger Sub to enter into this Agreement;

WHEREAS, as a condition to and inducement to Parents and Merger Subs willingness to enter into this Agreement, simultaneously with the execution of this Agreement, (i) Parent or Merger Sub, as applicable, is entering into with those individuals listed on Schedule A (a) employment agreements and/or offer letters, (b) proprietary information and inventions agreements, (c) mutual agreements to arbitrate claims, and (d) non-competition agreements with certain of such individuals who are stockholders of the Company ((a) through (d) collectively, the Employment Agreements) that will become effective at the Effective Time (as defined herein); (ii) the Company stockholders listed on Schedule B are entering into stockholder voting agreements with Parent and Merger Sub (the Voting Agreements); and (iii) each director and officer of the Company is delivering to Parent a written agreement in substantially the form of Exhibit A hereto (an Affiliate Agreement);

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