-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Gg6CsXsquLX3bKZ5mZ/yiPkA1WzfaSX8AZ0NLzrlSn2LRd1Bpr6Y1zN+cbaVWTSe M4ALDMte3IshtztmfWdmXg== /in/edgar/work/20000809/0000005187-00-000011/0000005187-00-000011.txt : 20000921 0000005187-00-000011.hdr.sgml : 20000921 ACCESSION NUMBER: 0000005187-00-000011 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000809 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: IMMUNEX CORP /DE/ CENTRAL INDEX KEY: 0000719529 STANDARD INDUSTRIAL CLASSIFICATION: [2836 ] IRS NUMBER: 510346580 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-35229 FILM NUMBER: 689826 BUSINESS ADDRESS: STREET 1: 51 UNIVERSITY ST CITY: SEATTLE STATE: WA ZIP: 98101 BUSINESS PHONE: 2065870430 MAIL ADDRESS: STREET 1: 51 UNIVERSITY STREET CITY: SEATLE STATE: WA ZIP: 98101 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN HOME PRODUCTS CORP CENTRAL INDEX KEY: 0000005187 STANDARD INDUSTRIAL CLASSIFICATION: [2834 ] IRS NUMBER: 132526821 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 5 GIRALDA FARMS CITY: MADISON STATE: NJ ZIP: 07940 BUSINESS PHONE: 9736605000 MAIL ADDRESS: STREET 1: 5 GIRALDA FARMS CITY: MADISON STATE: NJ ZIP: 07940 SC 13D/A 1 0001.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D/A Under the Securities Exchange Act of 1934 (Amendment No. 8)* Immunex Corporation (Name of Issuer) Common Stock, $.01 par value (Title of Class of Securities) 45252810 2 (CUSIP Number) LOUIS L. HOYNES, JR., ESQ. Executive Vice President and General Counsel American Home Products Corporation 5 Giralda Farms, Madison, N.J. 07940 (973) 660-5000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) August 9, 2000 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7(b) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 45252810 2 1. NAME OF REPORTING PERSON S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON American Home Products Corporation ("Parent") Tax I.D. 13-2526821 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) N/A (b) 3. SEC USE ONLY 4. SOURCE OF FUNDS* WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7. SOLE VOTING POWER -0- 8. SHARED VOTING POWER 283,878,088 9. SOLE DISPOSITIVE POWER -0- 10. SHARED DISPOSITIVE POWER 283,878,088 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 283,878,088 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 55.0% 14. TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP No. 45252810 2 1. NAME OF REPORTING PERSON S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MDP Holdings, Inc.("MDP") Tax I.D. 22-3187914 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) N/A (b) 3. SEC USE ONLY 4. SOURCE OF FUNDS* WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7. SOLE VOTING POWER -0- 8. SHARED VOTING POWER 225,108,991 9. SOLE DISPOSITIVE POWER -0- 10. SHARED DISPOSITIVE POWER 225,108,991 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 225,108,991 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 45.0% 14. TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP No. 45252810 2 1. NAME OF REPORTING PERSON S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Lederle Parenterals, Inc. ("LPI") Tax I.D. 22-2132271 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) N/A (b) 3. SEC USE ONLY 4. SOURCE OF FUNDS* WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION New Jersey NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7. SOLE VOTING POWER -0- 8. SHARED VOTING POWER 43,225,056 9. SOLE DISPOSITIVE POWER -0- 10. SHARED DISPOSITIVE POWER 43,225,056 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 43,225,056 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.6% 14. TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! The Statement on Schedule 13D, dated December 1, 1994 (the "Original Statement"), filed by American Home Products Corporation, a Delaware corporation ("Parent" or "Reporting Person"), and on behalf of AC Acquisition Corp., a Delaware corporation, as amended by Amendment No. 1, dated November 2, 1995 ("Amendment No. 1"), Amendment No. 2, dated November 3, 1995 ("Amendment No. 2"), Amendment No. 3, dated November 15, 1995 ("Amendment No. 3"), Amendment No. 4, dated April 23, 1999 ("Amendment No. 4"), Amendment No. 5, dated May 20, 1999 ("Amendment No. 5"), Amendment No. 6, dated August 6, 1999 ("Amendment No. 6") and Amendment No. 7, dated June 23, 2000 ("Amendment No. 7") is hereby further amended by this Amendment No. 8, dated August 9, 2000 ("Amendment No. 8") to reflect certain changes in the information previously filed relating to the outstanding Common Stock, $.01 par value (the "Common Stock"), of Immunex Corporation, a Washington corporation ("Immunex" or "Issuer"), which has its principal executive offices at 51 University Street, Seattle, WA 98101. Any Items which include descriptions of Exhibits attached to this Schedule 13D which incorporate by reference such Exhibits are qualified in their entirety by such Exhibits. Item 4 is hereby amended by adding the following language: Parent, MDP and LPI intend to continuously review their investment in Immunex. In reaching any decision with respect to such investment, Parent, MDP and LPI will take into consideration various factors, such as Immunex's business and prospects, the obligations of Parent and ACY under the agreements between Parent and/or ACY and Immunex, other developments concerning Immunex, other investment opportunities available to Parent, MDP and LPI, and general economic and market conditions. Depending on the result of their review of such factors, Parent, MDP and LPI may decide to dispose of all or a portion of such securities (whether now or hereafter held) or Parent, MDP and LPI may decide to purchase additional equity securities of Immunex, in each case, subject to the terms and conditions of agreements between Immunex and ACY and/or Parent. On August 9, 2000, Immunex filed a shelf registration statement on Form S-3 with the Securities and Exchange Commission covering the registration of the proposed sale of up to 20 million shares of newly issued Common Stock in a primary offering (the "Primary Offering") and 50 million shares of Common Stock in a secondary offering by Parent (the "Secondary Offering") which shares are planned to be sold in one or more underwritten public offerings (the Primary Offering and the Secondary Offering are referred to herein as the "Offering"). Under the terms of the Letter Agreement relating to the proposed offering which is attached hereto as Exhibit XI and is incorporated herein by reference, in the event that Parent sells any shares of Common Stock in the Secondary Offering, Parent has agreed not to sell any additional shares of Common Stock from the date of execution of each underwriting agreement for the Second Offering until the later of (i) September 30, 2001 or (ii) nine months after the date of such underwriting agreement (the "lock-up period"). Parent also agreed to convert the entire principal amount of the $450,000,000 3% Convertible Subordinated Note Due 2006 (the "Note") into Immunex Common Stock at the Conversion Price (as defined in the Note Agreement) on the date of conversion in the event that Immunex obtains third-party financing for a significant facilities development project by Immunex in Seattle. On August 9, 2000, Parent, Cyanamid and Immunex entered into Amendment No. 2 (the "Amendment") to the Amended and Restated Governance Agreement which is attached hereto as Exhibit XII and is incorporated herein by reference. The Amendment provides for the following to be effective in the event Parent's ownership interest falls below 45% of the total outstanding Immunex Common Stock: (i) at all times that Parent has the right to designate no more than two Investor Directors (as defined in the Governance Agreement), Immunex shall have the right to designate three Management Directors and there shall be at least four Independent Directors, (ii) for the duration of any lock-up period, all shares issued pursuant to employee stock options during each lock-up period shall be disregarded in determining whether Parent's ownership interest falls below 35% for purposes of the Governance Agreement and (iii) certain governance restrictions shall be revised to grant greater flexibility to Immunex in certain respects as set forth more fully in Exhibit XII. Item 4(d) is amended to add the following: Upon the completion of the Secondary Offering, Parent's holdings in Immunex Common Stock would be expected to fall below 45% but remain above 35% of the outstanding Common Stock and therefore pursuant to the terms of the Governance Agreement, Parent would retain the right to designate two Investor Directors on the Immunex Board. Except as set forth above or in any other item hereof, Parent, MDP and LPI do not have any present plans or proposals that would relate to or result in any of the actions required to be described in Item 4 of Schedule 13D. Item 6 is hereby amended to add the following language at the end of this item: On August 9, 2000, Parent and Immunex entered into a Letter Agreement attached hereto as Exhibit XI which is incorporated herein by reference related to the filing of the shelf registration statement filed by Immunex covering the proposed sale of 50 million shares of Immunex Common Stock to be sold in a Secondary Offering, along with the proposed sale of 20 million newly issued shares of Common Stock to be sold in the Primary Offering as described in greater detail above in Item 4 hereof which such description is incorporated herein by reference. On August 9, 2000, Parent, Cyanamid and Immunex entered into the Amendment which is attached hereto as Exhibit XII and is incorporated herein by reference. The Amendment includes certain changes which are described in detail in Item 4 which such description is incorporated herein by reference. Item 7 is hereby amended by adding the following language at the end of this item: Exhibit X - Press Release, dated August 9, 2000, announcing the filing of a Shelf Registration Statement by Immunex Corporation, to include both primary shares and shares held by Parent and/or its Affiliates. Exhibit XI - Letter Agreement between Parent and Immunex, dated August 9, 2000, relating to the Shelf Registration Statement and related matters. Exhibit XII - Amendment No. 2 to the Amended and Restated Governance Agreement, dated August 9, 2000. After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: August 9, 2000 AMERICAN HOME PRODUCTS CORPORATION By: /s/ Kenneth J. Martin Kenneth J. Martin Senior Vice President and Chief Financial Officer Attachment A to the Schedule 13D with regard to the executive officers and directors of American Home Products Corporation is hereby amended and restated as follows: Attachment A Executive Officers and Directors of American Home Products Corporation The names and titles of the executive officers and the names of the directors of American Home Products Corporation ("Parent") and their business addresses and principal occupations are set forth below. If no address is given, the director's or executive officer's business address is that of Parent. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to employment with Parent and each individual is a United States citizen. EXECUTIVE OFFICERS Position; Present Principal Occupation - ------------------- -------------------------------------- John R. Stafford Chairman and Chief Executive Officer Robert Essner President and Chief Operating Officer Louis L. Hoynes, Jr. Executive Vice President and General Counsel Kenneth J. Martin Senior Vice President and Chief Financial Officer Robert I. Levy Senior Vice President-Science and Technology William J. Murray Senior Vice President David M. Olivier Senior Vice President Paul J. Jones Vice President and Comptroller Rene R. Lewin Vice President-Human Resources Thomas M. Nee Vice President-Taxes DIRECTORS Position; Present Principal Occupation - ------------ -------------------------------------- Clifford L. Alexander, Jr President of Alexander & Associates, 400 C Street, NE Inc. (consulting firm specializing in Washington, D.C. 20002 Workforce Inclusiveness) Frank A. Bennack, Jr. President and Chief Executive Officer The Hearst Corporation of The Hearst Corporation 959 Eighth Avenue (owns and operates communications New York, New York 10019 media) Richard L. Carrion Chairman, President and Chief 209 Munoz Rivera Avenue Executive Officer, Banco Popular Hato Rey, PR 00918 de Puerto Rico Robert Essner Listed above John D. Feerick Dean, Fordham University Fordham University School of Law since 1982 School of Law 140 West 62nd Street New York, New York 10023 John P. Mascotte President and Chief Executive 2301 Main Street Officer, Blue Cross Blue Shield Eighth Floor of Kansas City, Inc. Kansas City Missouri 64108 Mary Lake Polan, Chairman and Professor, M.D., Ph.D. Department of Gynecology & Stanford University Obstetrics, Stanford University School of Medicine School of Medicine 300 Pasteur Drive Stanford, CA 94305 Ivan G. Seidenberg President and Co-Chief Verizon Communications, Inc. Executive Officer, 1095 Avenue of the Verizon Communications Americas (telecommunications company) New York, New York 10036 John R. Stafford Listed above John R. Torell III Senior Managing Partner, Conifer Conifer Capital Group Capital Group 9 West 57th Street (financial advisory company) New York, New York 10019 Exhibit Index Exhibit X - Press Release, dated August 9, 2000, announcing the filing of a Shelf Registration Statement by Immunex Corporation, to include both primary shares and shares held by Parent and/or its Affiliates. Exhibit XI - Letter Agreement between Parent and Immunex, dated August 9, 2000, relating to the Shelf Registration Statement and related matters. Exhibit XII - Amendment No. 2 to the Amended and Restated Governance Agreement, dated August 9, 2000. EX-10 2 0002.txt [AHP Logo] [Immunex Logo] FOR IMMEDIATE RELEASE American Home Products Corporation Immunex Corporation Media Contact: Media Contact: Lowell Weiner Tim Warner (973) 660-5013 (206) 470-4193 Investor Contact: Investor Contact: Thomas Cavanagh Mark Leahy (973) 660-5706 (206) 389-4363 AHP AND IMMUNEX TAKE ACTIONS TO SUPPORT CONTINUED GROWTH OF IMMUNEX Madison, N.J. and Seattle, WA, August 9, 2000 - American Home Products Corporation (NYSE:AHP) and Immunex Corporation (NASDAQ:IMNX) today announced a number of actions that have been taken by the two companies. These actions will support Immunex in executing its long-term growth strategy and are intended to enable AHP to monetize a portion of its highly successful investment in the biotech company while continuing to be a major participant in the future development and growth of Immunex. - more - - 2 - Immunex today has filed a shelf registration statement that would allow Immunex to sell up to 20 million shares of newly-issued Immunex common stock in a primary offering and AHP to sell up to 50 million shares of Immunex common stock in a secondary offering, market conditions permitting. The combined effect of the equity offering, if and when executed, is expected to reduce AHP's ownership stake in Immunex from approximately 55% to approximately 43%. If AHP's ownership falls below 45%, AHP will retain two of its three seats on the Immunex board and AHP and Immunex have agreed in such event to increase the number of independent directors from three to four. Key elements of the new business arrangements between AHP and Immunex include the future sale by AHP to Immunex of AHP's recently acquired biotech manufacturing facility in Rhode Island, which as previously disclosed is being retrofitted to increase manufacturing capacity of ENBREL(R) (etanercept). In addition, AHP has agreed to provide Immunex with financing guarantees to third party lenders of up to $550 million toward the cost of Immunex's proposed new research and technology center in Seattle. Finally, AHP agreed to convert its existing $450 million convertible subordinated Immunex note into Immunex - more - - 3 - common stock concurrently with the financing guarantees. All existing licensing and marketing rights to ENBREL between the two companies remain unchanged. "We are pleased to have reached such a mutually beneficial arrangement with Immunex," said John R. Stafford, AHP's Chairman and Chief Executive Officer. "Immunex will be able to continue its growth strategy and increase its research and manufacturing capabilities, while AHP is able to realize a portion of our investment. We will continue to have a very important business relationship with Immunex and will remain its largest shareholder," added Mr. Stafford. "Our new arrangement with AHP increases our operational flexibility and positions Immunex very well financially for continued growth," said Ed Fritzky, Immunex chairman and CEO. "This marks an evolution in our relationship with AHP from one of a majority-owned entity to business partner." American Home Products Corporation is one of the world's largest research-based pharmaceutical and health care products companies. It is a leader in the discovery, development, manufacturing and marketing of prescription drugs and over-the-counter medications. It is also a leader in vaccines, biotechnology and animal health care. - more - - 4 - Immunex Corporation is a biopharmaceutical company dedicated to improving lives through immune system science innovations. The statements in this press release that are not historical facts are forward-looking statements that involve risks and uncertainties including, without limitation, risks associated with the inherent uncertainty of pharmaceutical research, product development, product regulatory approval and compliance, product commercialization, reliance on third party manufacturers, the impact of competitive products, patent issues and other risks or uncertainties, including those detailed from time to time in AHP's and Immunex's periodic reports, including quarterly reports on Form 10-Q and the annual report on Form 10-K, filed with the Securities and Exchange Commission. Actual results may differ from forward-looking statements. ###### EX-11 3 0003.txt [AHP Letterhead] August 9, 2000 Mr. Edward V. Fritzky Immunex Corporation 51 University Street Seattle, Washington 98101 Dear Ed: Reference is made to the registration statement on Form S-3 (the "Shelf Registration Statement") to be filed by Immunex Corporation ("Immunex") today with the Securities and Exchange Commission (the "Commission") pursuant to Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"), to register an aggregate of 70,000,000 shares of common stock, par value $.01 per share ("Common Stock"), (i) 20,000,000 shares of which shall comprise primary shares of Common Stock to be sold by Immunex (the "Primary Offering") and (ii) 50,000,000 shares of which shall comprise secondary shares of Common Stock (the "Secondary Offering" and together with the Primary Offering, the "Offering") to be sold by American Home Products Corporation ("AHP"). Reference is also made to the Amended and Restated Governance Agreement, (the "Governance Agreement") dated as of December 15, 1992, among American Cyanamid Company ("Cyanamid"), Immunex and Lederle Oncology Corporation, as amended by Amendment No. 1, dated May 20, 1999, and Amendment No. 2, dated August 8, 2000, each by and between Cyanamid, Immunex and AHP. This letter shall serve to further clarify our understanding in connection with AHP's exercise of its registration rights pursuant to the Governance Agreement. Terms used herein, but not otherwise defined, shall have the meanings ascribed to them in the Governance Agreement. We hereby agree that (i) the filing by Immunex of the Shelf Registration Statement, (ii) the filing of an amendment or supplement thereto relating to the Secondary Offering and (iii) its efforts to facilitate the subsequent sale pursuant to the Secondary Offering, shall be deemed to be in accordance with Immunex's obligations in connection with AHP's registration rights pursuant to Section 6.05 of the Governance Agreement. The parties further agree that AHP shall determine, after good faith consultation with Immunex (subject to the provisions of Section 6.03(f) of the Governance Agreement), the appropriate timing of any sale of shares pursuant to the Offering; provided, however, notwithstanding anything herein to the contrary, if the Immunex board of directors determines in its good faith judgment that it is appropriate to conduct all or a portion of the Primary Offering, Immunex may proceed with such Primary Offering, subject to the following conditions: (a) if AHP has not sold shares pursuant to the Secondary Offering, (i) that such Primary Offering shall be conducted between March 31, 2001 and October 31, 2001 and (ii) that, subject to the provisions of Section 6.03(e) of the Governance Agreement (as if such provision applied to Immunex), the gross proceeds to Immunex from such Primary Offering shall not exceed $1 billion; and (b) if AHP has sold shares pursuant to the Secondary Offering, (i) that such Primary Offering shall be made on or before March 31, 2001, or within four (4) months after the date of such Secondary Offering, whichever is later, (ii) that the gross proceeds to Immunex from such Primary Offering shall not exceed $1 billion and (iii) that the number of shares sold by Immunex pursuant to such Primary Offering shall not exceed one half of the number of shares sold by AHP in such Secondary Offering; provided further that, if AHP is not restricted from selling shares of Common Stock at that time, Immunex shall provide AHP the opportunity to simultaneously conduct all or a portion of the Secondary Offering and the terms of the following paragraph shall apply. Immunex shall have the right, but not the obligation, to sell such number of shares which equals no more than one-third of the aggregate size of the Offering (as may be adjusted as set forth below) but in no event shall the gross proceeds to Immunex from the Primary Offering exceed $1 billion (inclusive of any proceeds derived from Immunex's grant to the underwriters of an over-allotment option). The size of the Offering shall be determined by AHP, after good faith consultation with Immunex (subject to the provisions of Section 6.03(e) of the Governance Agreement); provided, however, that if the Offering is expected to generate gross proceeds to Immunex of less than $1 billion, Immunex shall have the right, subject to the provisions of Section 6.03(e) of the Governance Agreement (as if such provision applied to Immunex), to increase the size of the Primary Offering so as to generate expected gross proceeds to it of no more than $1 billion. Pursuant to Section 9.02(a) of the Governance Agreement and to the extent necessary to permit the Primary Offering on the terms discussed in this letter, AHP hereby waives, for the periods described in clauses (a)(i) and (b)(i) of the third paragraph of this letter, its right to have an Investor Director approve and authorize an issuance of equity securities pursuant to Section 4.04(c) of the Governance Agreement. In addition, pursuant to Section 9.02(a) of the Governance Agreement, in the event AHP conducts a Secondary Offering, AHP hereby waives all of its subscription rights related to the Primary Offering, including both its right to notification and its right to purchase Immunex Common Stock pursuant to Section 2.01 of the Governance Agreement. AHP agrees that, from the date of the execution of each underwriting agreement for any Secondary Offering until September 30, 2001, or nine (9) months after the date of such underwriting agreement, whichever is later, AHP will not, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exchangeable for shares of Common Stock or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock; whether any transaction described in clause (i) or (ii) of this sentence is to be settled by delivery of Common Stock or other securities, in cash or otherwise. Immunex hereby agrees to use its best efforts (i) prior to effectiveness to amend or supplement the Shelf Registration Statement as required to comply in all material respects with the requirements of the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the respective rules and regulations thereunder, (ii) to obtain effectiveness of the Shelf Registration Statement as promptly as practicable, (iii) to maintain the Shelf Registration Statement continuously effective for a period of two (2) years and (iv) during the periods in which AHP is permitted by this letter to sell shares pursuant to the Secondary Offering, to promptly amend or supplement the Shelf Registration Statement and any prospectus (the "Shelf Registration Prospectus") relating thereto as necessary to comply in all material respects with the Securities Act, the Exchange Act and the respective rules and regulations thereunder. During the periods in which AHP is permitted by this letter to sell shares pursuant to the Secondary Offering, Immunex shall advise AHP in writing (a) when the Shelf Registration Statement or any post-effective amendment thereto shall have become effective; (b) of any request by the Commission for any amendment or supplement to the Shelf Registration Statement or the related Shelf Registration Prospectus or for any additional information; (c) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of any proceedings for that purpose; (d) of the receipt by Immunex of any notification with respect to the suspension of the qualification of the Common Stock for sale in any jurisdiction as shall be reasonably appropriate for the distribution of the Common Stock under the Offering in accordance with Section 6.06(e) of the Governance Agreement or the initiation or threatening of any proceeding for such purpose; and (e) of the happening of any event that requires the making of any changes in the Shelf Registration Statement or related Shelf Registration Prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Shelf Registration Prospectus, in the light of the circumstances under which they were made) not misleading, which notice shall be accompanied by an instruction to suspend the use of such Shelf Registration Prospectus until the requisite changes shall have been made. Immunex hereby agrees pursuant to Section 6.03(b) of the Governance Agreement not to withhold approval if AHP selects Morgan Stanley Dean Witter as co-lead manager and sole book runner of the Offering provided that AHP selects Merrill Lynch & Co. as co-lead manager for the Offering, and each of Immunex and AHP hereby agree that such an underwriting arrangement shall be used for all sales of shares in any Primary Offering or Secondary Offering. It is hereby agreed that, for purposes of Section 6.03(e) of the Governance Agreement, Morgan Stanley Dean Witter shall be deemed the managing underwriter for the Offering. AHP hereby agrees that, on or before the consummation of the Financing (as defined in the Memorandum of Understanding for Helix Project Financing Guaranty, dated the date hereof), AHP shall convert the $450 million convertible subordinated note dated May 20, 1999 issued to AHP by Immunex. We hereby agree that irreparable damage would occur in the event any provision of this letter was not performed in accordance with the terms hereof and that each of us shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity. This letter shall be governed by, and construed in accordance with, the laws of the State of Delaware without giving effect to principles of conflict of laws. This letter may be executed and delivered (including by facsimile transmission) in one or more counterparts, and by AHP and Immunex in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Except as otherwise stated herein, all terms and conditions of the Governance Agreement shall remain in full force and effect. AMERICAN HOME PRODUCTS CORPORATION By: /s/ Kenneth J. Martin Name: Kenneth J. Martin Title: Senior Vice President and Chief Financial Officer Accepted and Agreed: IMMUNEX CORPORATION Date August 9, 2000 By: /s/ Edward V. Fritzky Name: Edward V. Fritzky Title: Chairman of the Board, Chief Executive Officer and President EX-12 4 0004.txt AMENDMENT NO. 2 to AMENDED AND RESTATED GOVERNANCE AGREEMENT This Amendment No. 2 ("Amendment No. 2") is made this 9th day of August, 2000 (the "Amendment Effective Date") by and between AMERICAN CYANAMID COMPANY, a corporation organized and existing under the laws of the State of Maine ("CYANAMID") and a wholly-owned subsidiary of AMERICAN HOME PRODUCTS CORPORATION, a corporation organized and existing under the laws of the State of Delaware and having its principal office at Five Giralda Farms, Madison, New Jersey 07940 ("AHPC") and IMMUNEX CORPORATION, a corporation organized and existing under the laws of the State of Washington and having its principal office at 51 University Street, Seattle, Washington 98101 ("IMMUNEX"), further amends the Amended and Restated Governance Agreement dated as of December 15, 1992, among American Cyanamid Company, Immunex Corporation and Lederle Oncology Corporation as amended by Amendment No. 1 to the Governance Agreement, dated May 20, 1999 (as amended, the "Governance Agreement"). WHEREAS, AHPC and IMMUNEX have entered into a Letter Agreement, dated August 9, 2000, under which AHPC requested and IMMUNEX agreed to file and filed a shelf registration statement on Form S-3 with the Securities and Exchange Commission on August 9, 2000 covering the proposed sale of up to 20 million shares of newly issued Common Stock in a primary offering (the "Primary Offering") and up to 50 million shares of Common Stock in a secondary offering (the "Secondary Offering" and together with the Primary Offering, the "Offering"); WHEREAS, AHPC and IMMUNEX have agreed to make certain amendments to the Governance Agreement effective upon the closing of a Secondary Offering upon the completion of which Cyanamid's Interest is below 45%; NOW THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound, hereby agree as follows: 1. All initially capitalized terms used herein and not defined shall have the meanings set forth in the Governance Agreement. 2. Effective upon the closing of a Secondary Offering upon the completion of which Cyanamid's Interest is below 45%: (a) Notwithstanding anything in Section 4.01 (b) and (c) of the Governance Agreement to the contrary, at all times during which AHPC has the right to designate no more than two Investor Directors, IMMUNEX shall have the right to designate three Management Directors and there shall be at least four Independent Directors. (b) For the duration of any lock up period under the letter agreement between AHP and IMMUNEX dated August 9, 2000, notwithstanding anything to the contrary in the Governance Agreement, for purposes of determining whether Cyanamid's Interest is below 35% no consideration shall be given to any shares of IMMUNEX Common Stock issued during each lock up period as a result of the exercise of any employee or director stock options. (c) Section 4.04 of the Governance Agreement will be amended as follows: (i) Section 4.04(g) shall be deleted in its entirety; (ii) Each of Sections 4.04(h), (i) and (j) shall be amended to delete the amount "$350,000" and substitute in its place the amount "$15 million"; (iii) Section 4.04(l) shall be amended to delete the subsection in its entirety and substitute the following: "(l) the acquisition by the Company or any of its Subsidiaries of technology or products under any license or similar arrangements unless the purchase price or the fair market value of such technology or products (determined in accordance with Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended and the rules and regulations promulgated thereunder) is less than $15 million; 3. Except as otherwise set forth in this Amendment No. 2 or Amendment No. 1, all other terms and provisions of the Governance Agreement shall remain in full force and effect. 4. This Amendment No. 2 may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute together one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 as of the day and year first above written. IMMUNEX CORPORATION By:/s/ Edward V. Fritzky Edward V. Fritzky Chairman and Chief Executive Officer AMERICAN CYANAMID COMPANY By:/s/ Jeffrey S. Sherman Name: Jeffrey S. Sherman Title: Vice President AMERICAN HOME PRODUCTS CORPORATION By:/s/ Kenneth J. Martin Name: Kenneth J. Martin Title: Senior Vice President and Chief Financial Officer -----END PRIVACY-ENHANCED MESSAGE-----