-----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, Q3buUBjrR+8y6InSROPpBqf8vH5oD0lrkDy+uNXahjPLmbY/sKdX9TkRrUE5m7Ql Xi1IV9QWwmPideI6tIeMhw== 0001032210-02-000044.txt : 20020413 0001032210-02-000044.hdr.sgml : 20020413 ACCESSION NUMBER: 0001032210-02-000044 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20020101 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020118 FILER: COMPANY DATA: COMPANY CONFORMED NAME: IMMUNEX CORP /DE/ CENTRAL INDEX KEY: 0000719529 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 510346580 STATE OF INCORPORATION: WA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-12406 FILM NUMBER: 2512583 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 8-K 1 d8k.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------- Form 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 January 1, 2002 ----------------------------------------------------- Date of Report (Date of earliest event reported) IMMUNEX CORPORATION - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Charter) Washington 0-12406 51-0346580 - ----------------------------------- ------------------------------- ---------------------------- (State or Other Jurisdiction (Commission File No.) (IRS Employer of Incorporation) Identification No.)
51 University Street, Seattle, Washington 98101 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) (206) 587-0430 - -------------------------------------------------------------------------------- (Registrant's Telephone Number, Including Area Code) None - -------------------------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report) Item 2. Acquisition or Disposition of Assets. On November 6, 2001, Immunex Corporation, a Washington corporation ("Immunex"), entered into a Purchase Agreement with American Home Products Corporation, a Delaware corporation ("AHP") and AHP Subsidiary Holding Corporation, a Delaware corporation and wholly owned subsidiary of AHP ("Holdings"), which provided for Immunex's purchase from Holdings of all of the outstanding shares (the "Shares") of Greenwich Holdings Inc. ("Greenwich"). The Purchase Agreement was described in, and filed as an exhibit to, Immunex's Current Report on Form 8-K filed on November 13, 2001. Greenwich owns the biopharmaceutical manufacturing facility in West Greenwich, Rhode Island, that Immunex and AHP have worked together to retrofit to accommodate the commercial production of ENBREL(R) (etanercept). U.S. Food and Drug Administration ("FDA") approval of the facility is anticipated in the second half of 2002. As part of the definitive Purchase Agreement, Immunex paid $188,965,335 to AHP and Holdings at signing. On December 21, 2001, Immunex, AHP and Holdings entered into Amendment No. 1 to the Purchase Agreement (the "Amendment") to provide for payment of the purchase price for the Shares with a short-term promissory note, the terms of which are described below, instead of in cash. On January 1, 2002, Immunex, AHP and Holdings completed the transactions contemplated by the Purchase Agreement. Immunex became the owner of the Shares and, by extension, all of the assets of Greenwich, including the Rhode Island facility. Immunex plans to continue the operation of the facility as proposed by AHP and Holdings once the facility is approved for production by the FDA. Under the terms of the Purchase Agreement, as amended, Immunex issued a Secured Promissory Note (the "Note") in favor of AHP and Holdings in the amount of $279,417,982 in payment of the balance of the purchase price for the Shares. This amount represents the parties' estimate of the net value of Greenwich's assets as of November 30, 2001, less the amount Immunex paid at signing. The Note becomes due and payable on January 25, 2002 and is secured by the Shares, as provided in a Pledge Agreement, dated January 1, 2002, by and among Immunex, AHP and Holdings. In addition, the Purchase Agreement provides for a post-transaction reconciliation to include an additional payment by Immunex in the amount by which the net value of Greenwich's assets increased between November 30, 2001 and January 1, 2002. This reconciliation amount is expected to be approximately $27 million. AHP and its affiliates and subsidiaries hold an approximate 41% equity interest in Immunex. The above description of Immunex's purchase of the Shares is a summary and as such is not intended to be complete. It is subject to, and qualified by reference to, the Purchase Agreement, which is attached as Exhibit 10.1 to Immunex's Current Report on Form 8-K filed on November 13, 2001, the press release announcing execution of the Purchase Agreement, which is attached as Exhibit 99.1 to Immunex's Current Report on Form 8-K filed on November 2 13, 2001, and the Amendment, the Note and the Pledge Agreement, which are attached as exhibits to this Current Report on Form 8-K. Each of the foregoing documents is incorporated herein by reference. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits. (a) Financial Statements of Business Acquired. If financial statements with respect to Greenwich are required to be filed by Item 7 of Form 8-K, they will be filed by amendment as soon as practicable and no later than 60 days from the date on which this Form 8-K must be filed, as provided in paragraph 4 of Item 7(a) of Form 8-K. (b) Pro Forma Financial Information. If pro forma financial statements with respect to Immunex and Greenwich are required to be filed by Item 7 of Form 8-K, they will be filed by amendment as soon as practicable and no later than 60 days from the date on which this Form 8-K must be filed, as provided in paragraph 4 of Item 7(a) of Form 8-K. (c) Exhibits. 10.1 Purchase Agreement, dated November 6, 2001, by and (A) among American Home Products Corporation, AHP Subsidiary Holding Corporation and Immunex Corporation. 10.2 Amendment No. 1 to Purchase Agreement, dated December 21, 2001, by and among American Home Products Corporation, AHP Subsidiary Holding Corporation and Immunex Corporation. 10.3 Secured Promissory Note, dated January 1, 2002, by Immunex Corporation in favor of American Home Products Corporation and AHP Subsidiary Holding Corporation. 10.4 Pledge Agreement, dated January 1, 2002, by and among American Home Products Corporation, AHP Subsidiary Holding Corporation and Immunex Corporation. 10.5 Limited Waiver and Amendment Letter Agreement, dated January 11, 2002, among Immunex Corporation, American Home Products Corporation and AHP Subsidiary Holding Corporation. 99.1 Immunex press release dated November 7, 2001. (A)
- ------------------- (A) Incorporated by reference to Immunex's Current Report on Form 8-K filed on November 13, 2001. 3 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. IMMUNEX CORPORATION Dated: January 18, 2002 By: /s/ Barry G. Pea ------------------------------------ Name: Barry G. Pea Its: Executive Vice President, General Counsel and Secretary 4 EXHIBIT INDEX
Exhibit Number Description - -------------- ----------- 10.1 Purchase Agreement, dated November 6, 2001, by (A) and among AmericanHome Products Corporation, AHP Subsidiary Holding Corporation and Immunex Corporation. 10.2 Amendment No. 1 to Purchase Agreement, dated December 21, 2001, by and among American Home Products Corporation, AHP Subsidiary Holding Corporation and Immunex Corporation. 10.3 Secured Promissory Note, dated January 1, 2002, by Immunex Corporation in favor of American Home Products Corporation and AHP Subsidiary Holding Corporation. 10.4 Pledge Agreement, dated January 1, 2002, by and among American Home Products Corporation, AHP Subsidiary Holding Corporation and Immunex Corporation. 10.5 Limited Waiver and Amendment Letter Agreement, dated January 11, 2002, among Immunex Corporation, American Home Products Corporation and AHP Subsidiary Holding Corporation. 99.1 Immunex press release dated November 7, 2001. (A)
- -------------------------- (A) Incorporated by reference to Immunex's Current Report on Form 8-K filed on November 13, 2001. 5 EX-10.2 3 dex102.txt AMENDMENT #1 TO PURCHASE AGREEMENT EXHIBIT 10.2 AMENDMENT NO. 1 TO PURCHASE AGREEMENT This AMENDMENT NO. 1 (the "Amendment") to the Purchase Agreement, dated as of November 6, 2001 (the "Purchase Agreement") among American Home Products Corporation, a Delaware corporation ("AHP"), AHP Subsidiary Holding Corporation, a Delaware corporation ("Holdings" and, together with AHP, the "Sellers"), and Immunex Corporation, a Washington corporation ("Buyer"), is entered into as of December 21, 2001. W I T N E S S E T H : - - - - - - - - - - WHEREAS, AHP, Holdings and Buyer each desire to amend the Purchase Agreement as set forth herein; NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Amendments to the Purchase Agreement. (a) The following shall be added as a new Section 2.5 of the Purchase Agreement: "2.5 PAYMENT METHOD. Notwithstanding anything to the contrary herein, all payments required to be made by Buyer to Holdings at Closing pursuant to Sections 2.1 and 2.2 of this Agreement shall be made by tender at Closing of a duly authorized and executed Note (the "Note") in the form attached as Exhibit 2.5(a) hereto. ---- The Note shall be due and payable by wire transfer of immediately available funds on or before January 11, 2002 to an account specified in writing by the Sellers. The Note shall be secured by the Shares, which shall be pledged to Holdings at Closing pursuant to the Pledge Agreement attached hereto as Exhibit 2.5(b). The pledged Shares shall be released to Buyer upon payment of the Note in accordance with the terms of the Pledge Agreement." (b) Section 3.1 of the Purchase Agreement is hereby amended and restated to read in its entirety: "3.1. THE CLOSING. Unless this Agreement shall have been terminated in accordance with the terms hereof, on the terms and subject to the conditions of this Agreement, the closing of the sale and purchase of the Shares and the Assets and the consummation of the other transactions contemplated hereby (the "Closing") shall take place at the offices of ------- American Home Products Corporation, Five Giralda Farms, Madison, New Jersey, 07940 on (a) the later of January 1, 2002; or (ii) the next succeeding business day on which the last to be fulfilled or waived of the conditions set forth in Article 9 shall be fulfilled or waived in accordance with this Agreement or (b) at such other time, date or place as the parties may mutually agree upon in writing (the "Closing Date"). At the Closing, the parties to this Agreement will exchange the Note, certificates and other documents specified in this Agreement, and ownership of the Shares will transfer to Buyer notwithstanding Sellers' continued possession of the Certificate (as defined below) under the Pledge Agreement. For purposes of this Agreement, the Closing will be treated as if it had occurred at 12:01 a.m. on the Closing Date." (c) Section 3.2(a) of the Purchase Agreement is hereby amended and restated to read in its entirety: "3.2(a) the Note and the Pledge Agreement;" (d) Section 3.3(a) of the Purchase Agreement is hereby amended and restated to read in its entirety: "3.3(a) a photocopy of a certificate representing the Shares (the "Certificate"), which has been duly endorsed for transfer to Buyer or is ----------- accompanied by a stock power duly executed in blank, it being understood that Sellers shall retain possession of the original Certificate in accordance with the terms of the Pledge Agreement." (e) The following shall be added as a new Section 4.18 of the Purchase Agreement: "4.18. PAST ACTIVITIES. Greenwich was, prior to July 16, 1999, solely a holding company owning the shares of Promotion Services GmbH and did not engage in any activity or operations before July 16, 1999. Promotion Services GmbH never engaged, directly or indirectly, in the sale or distribution of any pharmaceutical or other products. All actions necessary to effect the dissolution of Promotion Services GmbH in full compliance with applicable law, including any necessary actions of any governmental entity or agency, have been taken and such dissolution is complete, effective November 29, 2001. As of the Closing Date, there are no claims, actions, suits, arbitrations, investigations or proceedings pending against or involving, or to the knowledge of Sellers, threatened against Promotion Services GmbH and, to the knowledge of Sellers, there is no valid basis for any claim, action, suit, arbitration, proceeding or investigation before or by any Person against or involving Promotion Services GmbH. There are no outstanding judgments, orders, decrees, or stipulations to which Promotion Services 2 GmbH is a party. Promotion Services GmbH has not engaged in any operations or business activity since March 31, 1996." (f) The following shall be added as a new Section 4.19 to the Purchase Agreement: "4.19. SUBSIDIARIES. Greenwich does not own or control, and except for Promotion Services GmbH, has never owned or controlled, directly or indirectly, any corporation, partnership, limited liability company or other business entity. Greenwich does not own or control, and except for Promotion Services GmbH has never owned or controlled, directly or indirectly, any ownership, equity or voting interest in, any corporation, partnership, joint venture or other entity, and has no agreement or commitment to purchase any such interest." (g) Section 11.1(c) and (d) are hereby amended and restated to read in their entirety as follows, and the following shall be added as a new Section 11.1(e) and a new Section 11(f) to the Purchase Agreement: "11.1(c) any Excluded Assets and Liabilities; (d) the operation and activities of Greenwich, and the ownership of its assets, prior to September 24, 1999 and all operations and activities of Promotion Services GmbH; (e) that certain complaint of Thomas E. Angelone against Wyeth Pharmaceuticals currently pending before the Equal Employment Opportunity Commission and the Rhode Island Commission for Human Rights; and (f) any and all actions, suits, proceedings, claims, and demands incident to any of the foregoing or such indemnification." (h) Section 11.3(a) is hereby amended and restated to read in its entirety: "11.3. CERTAIN LIMITATIONS. (a) Other than Sellers' obligation to indemnify for Buyer Losses under Section 11.1(a) of this Agreement arising out of a breach of representation or warranty contained in Section 4.2 (capitalization), 4.12 (brokers), 4.15 (taxes), 4.18 (past activities) or 4.19 (subsidiaries), Sellers' obligation to indemnify for Buyer Losses under Section 11.1(a) of this Agreement shall not accrue until the aggregate of all such Buyer Losses exceeds Seven Hundred Fifty Thousand Dollars ($750,000) (the "Loss Threshold") and then Sellers shall be liable for all such Buyer Losses in excess of such initial $750,000 and shall be limited to One Hundred Seventy-Five Million Dollars ($175,000,000) in the aggregate. There shall be no Loss Threshold or limit on liability with respect to Sellers' obligations to indemnify under Sections 11.1(b) through (f)." (i) Section 12.1 is hereby amended and restated to read in its entirety: "The covenants contained in this Agreement shall survive the Closing Date without limitation except as expressly set forth herein. The representations and warranties contained herein shall survive the Closing Date for a period of eighteen (18) months, except for (i) the representations and warranties contained in Section 4.15 (taxes), which shall survive until the expiration of the applicable statute of limitations, and (ii) the representations and warranties contained in Sections 4.2 (capitalization), 3 4.3 (corporate authority), 4.12 (brokers and intermediaries), 4.18 (past activities), 4.19 (subsidiaries), 5.2 (corporate authority) and 5.5 (brokers and intermediaries), which shall survive the Closing Date without limitation. Buyer's and Seller's right to make a claim for indemnification under Section 11.1(a) or Section 11.2(a), respectively for a breach of any representation or warranty expires upon the expiration of the applicable period set forth above, it being understood that claims made on or prior to such expiration date shall survive such expiration date." 2. Reference to and Effect on Purchase Agreement; Miscellaneous. (a) Upon the effectiveness of this Amendment, each reference in the Purchase Agreement to "this Agreement," "hereunder," "hereof, " "herein, " "hereby" or words of like import shall mean and be a reference to the Purchase Agreement as amended hereby, and each reference to the Purchase Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Purchase Agreement shall mean and be a reference to the Purchase Agreement as amended hereby. (b) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of either of the parties under the Purchase Agreement nor constitute a waiver of any provision contained therein, except as specifically set forth herein or contemplated hereby. (c) This Amendment may be executed and delivered (including by facsimile transmission) in any number of counterparts, and by the different parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. (d) Section headings in this Amendment are included herein for reference purposes only and shall not affect in any way the meaning or interpretation of this Amendment. [Signature page follows.] 4 IN WITNESS WHEREOF, the parties have entered into and signed this Amendment as of the date and year first written above. AMERICAN HOME PRODUCTS CORPORATION By: /s/ Thomas M. Nee ------------------------------------ Title:______________________________ AHP SUBSIDIARY HOLDING CORPORATION By: /s/ Timothy Slater ------------------------------------ Title:______________________________ IMMUNEX CORPORATION By: /s/ David A. Mann ------------------------------------ Title:______________________________ 5 EX-10.3 4 dex103.txt SECURED PROMISSORY NOTE EXHIBIT 10.3 Secured Promissory Note ----------------------- $279,417,982 January 1, 2002 1. FOR VALUE RECEIVED, Immunex Corporation, a Washington corporation ("Borrower"), hereby unconditionally promises to pay to American Home -------- Products Corporation, a Delaware corporation ("AHP") and AHP Subsidiary Holding Corporation ("Holdings, and together with AHP, the "Payees"), the ------ principal sum of Two Hundred Seventy Nine Million Four Hundred Seventeen Thousand and Nine Hundred Eighty-two Dollars ($279,417,982), in cash in immediately available funds, on the dates hereinafter specified, and to pay interest on the unpaid principal amount thereof in like money and funds, for the period commencing on the date hereof until the principal amount of this Note shall be paid in full, at the rates per annum and on the dates provided herein. 2. As used herein, the following terms shall have the following meanings: "Bankruptcy Code" shall mean the United States Bankruptcy Code of 1978, as --------------- amended (as now or hereafter in effect). "Business Day" shall mean any day on which commercial banks are not ------------ authorized or required to close in the City of New York. "Default" or "Event of Default" shall have the meanings given such terms in ------- ---------------- Paragraph 6 hereof. "Dollars" or "$" shall mean lawful money of the United States of America. ------- - "Indebtedness" shall mean, as to any Person: (i) indebtedness created, ------------ issued or incurred by such Person for borrowed money (whether by loan or the issuance and sale of debt securities); (ii) non-contingent obligations of such Person to pay the deferred purchase or acquisition price of property or services, other than trade accounts payable arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within 90 days of the date the respective goods are delivered or respective services rendered; (iii) indebtedness of others secured by a security interest, mortgage, lien, encumbrance, collateral assignment or right of any third party in or of the property of such Person, whether or not the respective indebtedness so secured has been assumed by such Person; (iv) obligations of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for the account of such Person; (v) capital lease obligations of such Person; and (vi) indebtedness of others guaranteed by such Person or for which such Person may be, or may become, liable. "Insolvency Event" with respect to any Person shall mean that, and shall ---------------- have occurred if: (a) the Person shall: (1) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property; (2) make a general assignment for the benefit of its creditors; (3) commence a voluntary case under the Bankruptcy Code; (4) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts; (5) fail to controvert in a timely manner and appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the Bankruptcy Code; or (6) take any corporate action for the purpose of effecting any of the foregoing; (b) a proceeding or case shall be commenced, without the application or consent of the Person, in any court of competent jurisdiction, seeking: (1) its liquidation, reorganization, dissolution or winding-up, or the composition or readjustment of its debts; (2) the appointment of a trustee, receiver, custodian, liquidator or the like of the Person of all or any substantial part of its assets; or (3) similar relief in respect of the Person under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts, and such proceeding or case shall continue undismissed, or an order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect, for a period of sixty (60) or more days; or (c) an order for relief against the Person shall be entered in an involuntary case under the Bankruptcy Code. "Interest Payment Date" shall mean January 11, 2002. --------------------- "Interest Rate" shall mean an annual rate of interest equal to the rate ------------- publicly announced by JPMorgan Chase Bank in New York, New York as its 30-day LIBOR rate in effect on the date hereof plus 25 basis points. Interest shall be calculated daily on the basis of a year of 360 days and the actual number of days for which interest is due. "Note" shall mean this Secured Promissory Note. ---- "Obligations" shall mean any and all liabilities, obligations, covenants, ----------- agreements and payments of or required to be made by Borrower under or pursuant to this Note and the Pledge Agreement. "Person" shall mean any individual, corporation, company, voluntary ------ association, partnership, joint venture, trust, unincorporated organization or government (or any agency, instrumentality or political subdivision thereof). -2- "Pledge Agreement" shall mean the Pledge Agreement dated as of the date ---------------- hereof between Borrower and Payees. "Purchase Agreement" shall mean the Purchase Agreement, dated as of ------------------ November 6, 2001, as amended (as amended, the "Purchase Agreement"), by and among the Payees and Borrower with respect to the issued and outstanding shares of capital stock of Greenwich Holdings Inc. "Subsidiary" shall mean, with respect to any Person, any other Person ---------- of which at least a majority of the outstanding shares of stock or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other similar management body of such other Person (irrespective of whether or not at the time stock or other ownership interests of any other class or classes of such other Person shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such first Person or one or more of the Subsidiaries of such first Person. 3. (a) The principal amount of this Note shall mature and be payable in full, on January 11, 2002. (b) The principal amount of this Note may be prepaid by Borrower in whole or in part at any time and from time to time, without premium or penalty, provided that all accrued and unpaid interest on the principal amount of this Note being prepaid shall have been paid in full. 4. (a) Interest shall be payable on the principal amount of this Note outstanding from time to time at a rate equal to the Interest Rate during the period from and including the date hereof and payable, in arrears (calculated on the basis of a 360 day year), on January 11, 2002. (b) Any principal amount hereof which is not paid when due (whether at the stated maturity, by acceleration or otherwise), shall bear interest during the period from and including the date due to the date of payment in full at the rate per annum equal to the Interest Rate, both before and after judgment. 5. Borrower hereby represents and warrants to Payees, as follows: (a) Borrower is a corporation duly organized and validly existing under the laws of the State of Washington and has paid all excise taxes required by the Washington Department of Revenue. (b) Borrower has full corporate power and authority to enter into the Note and the Pledge Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by Borrower of this Note have been duly -3- authorized by all requisite corporate action on the part of Borrower. This Note has been duly executed and delivered by Borrower, and constitutes a valid and binding obligation of Borrower, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles. (c) The execution, delivery and performance by Borrower of this Note do not and will not contravene or conflict with (i) the articles of incorporation or by-laws of Borrower; (ii) in any material respect, any mortgage, deed of trust, lease, note, contract, agreement, bond, indenture, license, permit or trust to which Borrower or any of its Subsidiaries is a party; or (iii) in any material respect, any judgment, order, writ, injunction or decree of any court, governmental body, governmental authority, or arbitrator, to which Borrower or any of its Subsidiaries is a party, that, in any case, would prevent or be violated by, or under which there would be a default as a result of, the execution, delivery and performance by Borrower of this Note and the consummation of the transactions contemplated hereby. No material consent, approval or authorization of or declaration or filing with any Person or governmental authority is required for the valid execution, delivery and performance by Borrower of this Note and the consummation of the transactions contemplated hereby. 6. If one or more of the following events (herein called "Events of Default") ----------------- shall occur: (a) Borrower shall default in the payment when due of any principal of or interest on this Note; or (b) Borrower shall default in the payment when due of any other amount payable by it under this Note or of any other monetary Obligation, and such default in payment shall continue unremedied for a period of three (3) Business Days after notice thereof by Payees to Borrower; or (c) Borrower shall default in the performance of any of its Obligations (other than Obligations to pay money), and such default shall continue unremedied for a period of ten (10) calendar days after notice thereof by Payees to Borrower; or (d) an Insolvency Event with respect to Borrower or any of its Subsidiaries; or (e) the occurrence of any "default" or "event of default" under any agreement, indenture or instrument evidencing or governing Indebtedness of Borrower in a principal amount outstanding of at least $25,000,000 in the aggregate for Borrower; thereupon, -4- (x) in the case of an Event of Default (other than an Insolvency Event), Payees may, by notice to Borrower, declare the principal amount then outstanding of, and the accrued interest on, this Note and all other amounts payable by Borrower under this Note to be forthwith due and payable, whereupon such amounts shall be immediately due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby waived by Borrower; and (y) in the case of the occurrence of any Insolvency Event, the principal amount then outstanding of, and the accrued interest on, this Note and all other amounts payable by Borrower under this Note shall be automatically immediately due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby waived by Borrower. 7. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (OTHER THAN THE CHOICE OF LAW PRINCIPLES THEREOF). 8. Any action, suit or other proceeding initiated by Payees to enforce this Note may be brought in any Federal or state court in the State of New York, as Payees shall elect, having jurisdiction over the subject matter thereof. Borrower hereby submits itself to the jurisdiction of any such court and irrevocably appoints Borrower's Chief Financial Officer at 51 University Street, Seattle, Washington 98101 as agent for service of process, and agrees that service of process on Borrower in any such action, suit or proceeding may be effected by certified mail/return receipt requested addressed to Borrower's Chief Financial Officer at the foregoing address. 9. All notices, demands, requests or other communications that are required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by telecopier, or sent by Federal Express or by registered or certified mail, postage prepaid, to the address or telecopier number, as the case may be, as follows: If to Payees: American Home Products Corporation Five Giralda Farms Madison, New Jersey 07940 Attn: Executive Vice President and General Counsel Telecopier No.: (973) 660-7156 Telephone No.: (973) 660-5000 -5- If to Borrower: Immunex Corporation 51 University Avenue Seattle, Washington 98101 Attn: General Counsel Telecopier No: (206) 292-9271 Telephone No.: (206) 587-0430 All such notices or other communications shall be deemed to have been given on the date transmitted by telecopier or personally delivered, or, in the case of notice or communication sent by Federal Express, one (1) day after the date deposited with Federal Express, or, in the case of notice or communication sent by registered or certified mail, seven (7) days after the date deposited in the mails, in each case given or addressed as aforesaid. Any party may by notice to each of the other parties change the address to which notice or other communications to it are to be delivered or mailed. 10. Any waiver of any term or condition of this Note, or any amendment or supplementation of this Agreement, shall be effective only if in writing. A waiver of any breach or failure to enforce any of the terms or conditions of this Agreement shall not in any way affect, limit or waive a party's rights hereunder at any time to enforce strict compliance thereafter with every term or condition of this Agreement. 11. Borrower shall pay on demand all costs and expenses (including without limitation reasonable legal fees) incurred by Payees in connection with the enforcement of this Note, and, upon such demand by Payees, such costs and expenses shall become Obligations of Borrower under this Note. 12. The Obligations of Borrower hereunder (whether for the payment of principal and interest or otherwise, and whether upon maturity or acceleration) shall be due, payable and performable by Borrower without the necessity of presentment, demand, notice, protest or other formalities of any kind, all of which are hereby waived by Borrower; provided that the foregoing shall in no way be deemed to limit the obligation of Payees to provide notice of default under Paragraph 6(a) hereof. Borrower agrees to pay all amounts owing under this Note without set-off, counterclaim, or defense of any nature whatsoever and, in any litigation arising out of or relating to this Note or to the payment of any portion thereof in which the holder of this Note and Borrower shall be adverse parties, Borrower hereby waives the right to interpose any set-off, counterclaim, or defense whatsoever (other than the defense of actual payout). 13. This Note and the rights and obligations hereunder shall not be assignable or transferable by the Borrower or the Payees, provided, however, that either Payee may assign its rights and obligations hereunder to an Affiliate of such Payee (as the term "Affiliate" is defined -6- in the Purchase Agreement). Any attempted assignment in violation of this Section 13 shall be void. * * * -7- In witness whereof, the undersigned has executed and delivered this Note, in the State of Washington, as of the 1st day of January, 2002. Attest: IMMUNEX CORPORATION /s/ Angela M. Trout By: /s/ David A. Mann - ----------------------------------- ------------------------------------ Angela M. Trout David A. Mann Residency at Seattle, WA Chief Financial Officer and Executive Vice President [Notary Seal] -8- EX-10.4 5 dex104.txt PLEDGE AGREEMENT EXHIBIT 10.4 PLEDGE AGREEMENT PLEDGE AGREEMENT dated as of January 1, 2002 by and among American Home Products Corporation, a Delaware corporation ("AHP"), AHP Subsidiary Holding Corporation ("Holdings" and together with AHP, the "Pledgees") and -------- Immunex Corporation, a Washington corporation ("Pledgor"). ------- Pledgor has, on this date, executed and delivered to Pledgees or their assigns a promissory note dated the date hereof in the principal amount of Two Hundred Seventy Nine Million Four Hundred Seventeen Thousand and Nine Hundred Eighty-two Dollars ($279,417,982) (the "Note"). ---- The Pledgor is the sole beneficial owner of one thousand (1,000) common shares, no par value per share, of the outstanding capital stock of Greenwich Holdings Inc., a Delaware corporation (the "Company"). ------- To induce the Pledgees to extend the credit to the Pledgor represented by the Note and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Pledgor has agreed to mortgage, assign, pledge and grant a security interest in the Collateral (as hereinafter defined) as security for the Secured Obligations (as hereinafter defined). Accordingly, the parties hereto agree as follows: Section 1. Definitions. Terms defined in the Note and not otherwise ----------- defined herein are used herein as defined therein. In addition, as used herein: "Collateral" shall have the meaning ascribed thereto in Section 3 ---------- ------- hereof. "Issuer" shall mean the Company. ------ "Lien" shall mean, with respect to any asset, any mortgage, lien, ---- pledge, charge, security interest or encumbrance of any kind in respect of such asset. "Pledged Shares" shall have the meaning ascribed thereto in Section -------------- ------- 3(a) hereof. "Purchase Agreement" shall mean the Purchase Agreement, dated as of ------------------ November 6. 2001, as amended, by and among the Pledgees and Pledgor. "Secured Obligations" shall mean (a) all obligations from time to time ------------------- owing by the Pledgor to the Pledgees under the Note and any increases, renewals or extensions thereof and (b) all amounts from time to time owing to the Pledgees by the Pledgor hereunder. "Subsidiary" of any Person shall mean (a) any corporation of which at ---------- least a majority of the outstanding shares of stock having by the terms thereof ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether or not at the time stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person and/or one or more of the Subsidiaries of such Person, or (b) any partnership of which at least a majority of the partnership or other ownership interests having by the terms thereof ordinary voting power to direct or cause the direction of management or policies of such partnership is at the time directly or indirectly owned by such Person and/or with respect to which such Person has the power, directly or indirectly, to direct or cause the direction of certain or all of the management and policies thereof. "Uniform Commercial Code" shall mean the Uniform Commercial Code as in ----------------------- effect from time to time in the State of New York. Section 2. Representations and Warranties. The Pledgor represents and ------------------------------ warrants to the Pledgees that, based solely upon the representations and warranties set forth in Section 4.2 of the Purchase Agreement: 2.1. Pledged Shares. -------------- (a) The Pledgor is the sole beneficial owner of the Pledged Shares. No Lien exists or will exist upon the Collateral at any time (and no right or option to acquire the same exists in favor of any other Person), except for the Lien in favor of the Pledgees created hereby. The Lien created hereby on the Collateral constitutes a first priority perfected pledge and security interest; (b) The Pledged Shares evidenced by the certificates identified on Annex 1 hereto are, and all other Pledged Shares will be, duly authorized, ----- validly existing, fully paid and non-assessable and none of such Pledged Shares is or will be subject to any contractual restriction, or any restriction under the charter or by-laws of the Issuer thereof, upon the transfer of such Pledged Shares (except for any such restriction contained herein); and (c) The Pledged Shares evidenced by the certificates identified on Annex 1 hereto constitute all of the issued and outstanding shares of ----- capital stock of any class of the Issuer thereof identified on said Annex 1 ----- beneficially owned by the Pledgor on the date hereof (whether or not registered in the name of the Pledgor), and said Annex 1 correctly ----- identifies, as of the date hereof, the Issuer of such Pledged Shares, the class and par value of such Pledged Shares and the number of shares evidenced by such certificates; and the Pledgor is the registered owner of all such shares. -2- Section 3. The Pledge. As collateral security for the prompt payment ---------- in full when due (whether at stated maturity, by acceleration or otherwise), of the Secured Obligations, the Pledgor hereby mortgages, assigns, pledges and grants to the Pledgees a security interest in, to and under all of the Pledgor's right, title and interest in the following property, whether now owned by the Pledgor or hereafter acquired and whether now existing or hereafter coming into existence (all being collectively referred to herein as "Collateral"): ---------- (a) the shares of capital stock of the Issuer identified on Annex 1 ----- hereto evidenced by the certificates now or hereafter owned by the Pledgor, together with, in each case, the certificates representing the same (collectively, the "Pledged Shares"); -------------- (b) all shares, securities, money or property representing a dividend on any of the Pledged Shares, or representing a distribution or return of capital upon or in respect of the Pledged Shares, or resulting from a split-up, revision, reclassification or other like change of the Pledged Shares or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged Shares; (c) without affecting the obligations of the Pledgor or the Company under any provision prohibiting such action hereunder or under the Note, in the event of any consolidation, merger or amalgamation in which any Issuer of the Pledged Shares is not the surviving corporation, all shares of each class in the capital of the successor corporation, formed by or resulting from such consolidation, merger or amalgamation; and (d) all proceeds of and to any of the property of the Pledgor described in clauses (a) through (c) above in this Section 3 and, to the ------- extent related to any property described in said clauses or such proceeds, all books, correspondence, credit files, records, invoices and other papers. Section 4. Further Assurance; Remedies. In furtherance of the grant of --------------------------- the pledge and security interest pursuant to Section 3 hereof, the Pledgor ------- hereby agrees with the Pledgees as follows: 4.1. Delivery and Other Perfection. The Pledgor shall: ----------------------------- (a) Subject to the rights of the Pledgor under Section 4.3 hereof, if ------- any of the above-described shares, securities, money or property required to be pledged by the Pledgor under clauses (a), (b) and (c) of Section 3 ------- hereof are received by the Pledgor, forthwith either (i) transfer and deliver to the Pledgees such shares, securities, money or property so received by the Pledgor (together with the certificates for any such shares and securities duly endorsed in blank or accompanied by undated powers duly executed in blank) all of which thereafter shall be held by the Pledgees, pursuant to the terms of this Agreement, as part of the Collateral or (ii) take such other action as the Pledgees shall deem reasonably necessary or appropriate to duly record the Lien created hereunder in such shares, securities, money or property referred to in said clauses (a), (b) and (c); -3- (b) give, execute, deliver, file and/or record any financing statement, notice, instrument, document, agreement or other papers that may be reasonably necessary or desirable (in the judgment of the Pledgees), to create, preserve, perfect or validate the security interest granted pursuant hereto or to enable the Pledgees to exercise and enforce its rights hereunder with respect to such pledge and security interest, including, without limitation, upon the occurrence and continuation of a Default, causing any or all of the Collateral to be transferred of record into the name of the Pledgees or their nominees (and the Pledgees agree that if any Collateral is transferred into its name or the name of its nominee, the Pledgees will thereafter promptly give to the Pledgor copies of any notices and communications received by it with respect to the Collateral); and (c) permit representatives of the Pledgees to have access in the same manner as is provided for in Section 7.2 of the Purchase Agreement. 4.2. Preservation of Rights. The Pledgees shall not be required to ---------------------- take steps necessary to preserve any rights against prior parties to any of the Collateral. 4.3. Rights of Ownership. ------------------- (a) So long as no Event of Default shall have occurred and be continuing, the Pledgor shall have the right to exercise all voting, consensual and other powers of ownership pertaining to the Collateral for all purposes not inconsistent with the terms of this Agreement or the Note, provided that the Pledgor agrees that it will not vote the Collateral in any manner that is inconsistent with the terms of this Agreement or the Note; and the Pledgees shall execute and deliver to the Pledgor or cause to be executed and delivered to the Pledgor all such proxies, powers of attorney, dividends and other orders, and all such instruments, without recourse, as the Pledgor may reasonably request for the purpose of enabling the Pledgor to exercise the rights and powers that it is entitled to exercise pursuant to this Section 4.3(a); ------- (b) Unless and until an Event of Default has occurred and is continuing, the Pledgor shall be entitled to receive and retain for its own use any dividends and interest on the Collateral paid in cash; and (c) If any Event of Default shall have occurred, then so long as such Event of Default shall continue, all dividends and other distributions on the Collateral shall be paid directly to the Pledgees and retained by them as part of the Collateral, subject to the terms of this Agreement, and, if the Pledgees shall so request in writing, the Pledgor agrees to execute and deliver to the Pledgees appropriate additional dividend, distribution and other orders and documents to that end, provided that if such Event of Default is cured, any such dividend, interest or distribution theretofore paid to the Pledgees shall, upon request of the Pledgor, be returned by the Pledgees to the Pledgor. 4.4. Events of Default, Etc. During the period during which an Event ---------------------- of Default shall have occurred and be continuing: (a) the Pledgees shall have all of the rights and remedies with respect to the Collateral of a secured party under the Uniform Commercial Code (whether or not said -4- Code is in effect in the jurisdiction where the rights and remedies are asserted), and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including, without limitation, the right, to the maximum extent permitted by law, to exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if the Pledgees were the sole and absolute owner thereof (and the Pledgor agrees to take all such action as may be appropriate to give effect to such right); (b) the Pledgees in their discretion may, in their name or in the name of the Pledgor or otherwise, demand, sue for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral, and may discharge, cancel or grant any acquittance with respect to any of the Collateral (whether or not any amounts thereof shall have been paid or the Pledgees or the Pledgor shall have received any, or adequate, consideration therefor), but shall be under no obligation to do so; (c) the Pledgees may, if an Event of Default is not cured within five (5) days after notice to the Pledgor, upon 10 Business Days' prior written notice to the Pledgor of the time and place, with respect to the Collateral or any part thereof which shall then be or shall thereafter come into the possession, custody or control of the Pledgees or any of their agents, sell, lease, assign or otherwise dispose of all or any part of such Collateral, at such place or places as the Pledgees deem best, and for cash or on credit, or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any such disposition or of time or place thereof (except such notice as is required above or by applicable statute and cannot be waived), and the Pledgees or anyone else may be the purchaser, lessee, assignee or recipient of any or all of the Collateral so disposed of at any public sale (or, to the extent permitted by law, at any private sale), and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any right or equity of redemption (statutory or otherwise), of the Pledgor, any such demand, notice or right and equity being hereby expressly waived and released. The Pledgees may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned; and (d) The proceeds of each collection, sale or other disposition under this Section 4.4 shall be applied in accordance with Section 4.7 hereof. ------- ------- The Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and other applicable securities laws, the Pledgees may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges that any such private sales may be at prices and on terms less favorable to the Pledgees than those obtainable through a public sale with such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Pledgees shall have no obligation to engage in -5- public sales and no obligation to delay the sale of any Collateral for the period of time necessary to permit the issuer thereof to register it for public sale. 4.5. Deficiency. If the proceeds of sale, collection or other ---------- realization of or upon the Collateral pursuant to Section 4.4 hereof are ------- insufficient to cover the costs and expenses of such realization and the payment in full of the Secured Obligations, the Pledgor shall remain liable for any deficiency. 4.6. Private Sale. The Pledgees shall incur no liability as a result ------------ of the sale of the Collateral, or any part thereof, at any private sale pursuant to Section 4.4 hereof conducted in a commercially reasonable manner. The Pledgor ------- hereby waives any claims against the Pledgees arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale or was less than the aggregate amount of the Secured Obligations, even if the Pledgees accept the first offer received and does not offer the Collateral to more than one offeree. 4.7. Application of Proceeds. Except as otherwise herein expressly ----------------------- provided, the proceeds of any collection, sale or other realization of all or any part of the Collateral pursuant hereto, and any other cash at the time held by the Pledgees under this Section 4, shall be applied by the Pledgees: ------- First, to the payment of the costs and expenses of such collection, ----- sale or other realization, including reasonable out-of-pocket costs and expenses of the Pledgees and the reasonable fees and expenses of its agents and counsel, and all expenses, and advances made or incurred by the Pledgees in connection therewith; Next, to the payment in full of the Secured Obligations; and ---- Finally, to the payment to the Pledgor, or its successors or assigns, ------- or as a court of competent jurisdiction may direct, of any surplus then remaining. As used in this Section 4, "proceeds" of Collateral shall mean cash, securities ------- -------- and other property realized in respect of, and distributions in kind of, Collateral, including any thereof received under any reorganization, liquidation or adjustment of debt of the Pledgor or any Issuer. 4.8. Attorney-in-Fact. Without limiting any rights or powers granted ---------------- by this Agreement to the Pledgees while no Event of Default has occurred and is continuing, upon the occurrence and during the continuance of any Event of Default the Pledgees are hereby appointed the attorney-in-fact of the Pledgor for the purpose of carrying out the provisions of this Section 4 and taking any ------- action and executing any instruments which the Pledgees may deem necessary or advisable to accomplish the purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, so long as the Pledgees shall be entitled under this Section 4 to make collections in respect of the Collateral, the Pledgees ------- shall have the right and power to receive, endorse and collect all checks made payable to the order of the Pledgor representing any dividend interest payment or other distribution in respect of the Collateral or any part thereof and to give full discharge for the same. -6- 4.9. Perfection. Prior to or concurrently with the execution and ---------- delivery of this Agreement, the Pledgor shall deliver to the Pledgees all certificates representing the Pledged Shares on the date hereof, accompanied by undated powers duly executed in blank. 4.10. Termination. When all Secured Obligations shall have been paid ----------- in full this Agreement shall terminate, and the Pledgees shall forthwith cause to be assigned, transferred and delivered, against receipt but without any recourse, warranty or representation whatsoever, any remaining Collateral and money received in respect thereof, to or on the order of the Pledgor. 4.11. Expenses. The Pledgor agrees to pay to the Pledgees all -------- reasonable out-of-pocket expenses (including reasonable expenses for legal services of every kind), of, or incident to, the enforcement of any of the provisions of this Section 4, or performance by the Pledgees of any obligations ------- of the Pledgor in respect of the Collateral which the Pledgor has failed or refused to perform, or any actual or attempted sale, or any exchange, enforcement, collection, compromise or settlement in respect of any of the Collateral, and for the care of the Collateral and defending or asserting rights and claims of the Pledgees in respect thereof, by litigation or otherwise and all such expenses shall be Secured Obligations owing to the Pledgees secured under Section 3 hereof. ------- 4.12. Further Assurances. The Pledgor agrees that, from time to time ------------------ upon the written request of the Pledgees, the Pledgor will execute and deliver such further documents and do such other acts and things as the Pledgees may reasonably request in order fully to effect the purposes of this Agreement. Section 5. Miscellaneous. ------------- 5.1. No Waiver. No failure on the part of the Pledgees or any other --------- Secured Party or any of its agents to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Pledgees or any of its nominees or agents of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies herein are cumulative and are not exclusive of any remedies provided by law. 5.2. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND ------------- CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. 5.3. Notices. All notices, requests, consents and demands hereunder ------- shall be in writing and transmitted by telecopier, personally delivered or sent by Federal Express to the intended recipient at its address or telecopy number specified beneath its signature hereto or at such other telecopy number or address as shall be designated by either party in a notice to the other party, and shall be deemed to have been given when transmitted by telecopier, or personally delivered or, in the case of a mailed notice or a notice sent by Federal Express, seven Business Days after the date deposited in the mails, postage prepaid, in each case given or addressed as aforesaid. -7- 5.4. Waivers, etc. The terms of this Agreement may be waived, altered ------------ or amended only by an instrument in writing duly executed by the Pledgor and the Pledgees. Any such amendment or waiver shall be binding upon the Pledgees, each holder of any of the Secured Obligations and the Pledgor. 5.5. Successors and Assigns. This Agreement shall be binding upon and ---------------------- inure to the benefit of the respective successors and assigns of the Pledgor, the Pledgees and each holder of any of the Secured Obligations, provided, however, that the Pledgor shall not assign or transfer its rights hereunder without the prior written consent of the Pledgees. 5.6. Pledgees. The Pledgees may employ agents and attorneys-in-fact in -------- connection herewith and shall not be responsible for the negligence or misconduct of any such agent or attorneys-in-fact selected by it in good faith, provided, however, that this section 5.6 shall not apply to action taken by agents or attorneys-in-fact that creates any Lien on the Collateral or results in a sale of the Collateral. 5.7. Severability. If any provision hereof is invalid and ------------ unenforceable in any jurisdiction, then, to the fullest extent permitted by law (a) the other provisions hereof shall remain in full force and effect in such jurisdiction and (b) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction. [Signature page follows] -8- IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement to be duly executed as of the day and year first above written. IMMUNEX CORPORATION By: /s/ David A. Mann ---------------------------------------- David A. Mann Executive Vice President and Chief Financial Officer Address for Notices: Immunex Corporation 51 University Avenue Seattle Washington 98101 Telecopy No.: (206) 292-9271 Telephone No.: (206) 587-0430 Attention: General Counsel AMERICAN HOME PRODUCTS CORPORATION By: /s/ Thomas M. Nee ---------------------------------------- Thomas M. Nee Vice President AHP SUBSIDIARY HOLDING CORPORATION By: /s/ TIMOTHY T. SLATER ---------------------------------------- Timothy T. Slater Vice President Address for Notices: American Home Products Corporation Five Giralda Farms Madison, New Jersey 07940 Telecopy No.: (973) 660-7156 Telephone No.: (973) 660-5000 Attention: General Counsel -9- Annex 1 ------- Pledged Shares -------------- Certificate Registered Number of Issuer Number Owner Shares ------ ------ ----- ------ Greenwich 3 Immunex Corporation 1,000 shares of Holdings Inc. Common Stock, no par value -10- EX-10.5 6 dex105.txt LIMITED WAIVER & AMENDMENT LETTER EXHIBIT 10.5 [Immunex Letterhead] January 11, 2002 Jeffrey Sherman Associate General Counsel American Home Products Corporation 5 Giralda Farms Madison, New Jersey 07940 Re: Limited Waiver and Amendment Letter ----------------------------------- Secured Promissory Note, dated January 1, 2002, of Immunex Corporation ---------------------------------------------------------------------- Dear Mr. Sherman: Reference is made to the Secured Promissory Note (the "Promissory Note") of Immunex Corporation ("Borrower"), dated January 1, 2002, in favor of American Home Products Corporation and AHP Subsidiary Holding Corporation (together with American Home Products Corporation, the "Payees"). Terms defined in the Promissory Note are used in this letter (the "Limited Waiver and Amendment Letter") as therein defined. By this Limited Waiver and Amendment Letter, Borrower hereby requests that Payees waive compliance by Borrower with Section 3(a) of the Promissory Note for a period of fourteen (14) days. For purposes of this Limited Waiver and Amendment Letter, the period beginning January 12, 2002 and ending on January 25, 2002 shall be referred to as the "Extension Period." In order to induce Payees to grant the foregoing waiver, Borrower agrees that the Interest Rate during the Extension Period shall be an annual rate of interest equal to the rate publicly announced by JPMorgan Chase Bank in New York, New York as its 30-day LIBOR rate in effect on the date hereof plus 100 basis points. To effect the change set forth above, upon effectiveness of this Limited Waiver and Amendment Letter, the following amendments to the Promissory Note shall automatically occur, without further action by either of the parties: 1. The definition of "Interest Payment Date" in Article 2 of the Promissory Note shall be amended and restated in its entirety to read as follows: "Interest Payment Date' shall mean January 25, 2002." --------------------- Jeffrey Sherman January 11, 2002 Page 2 2. Section 3(a) of the Promissory Note shall be amended and restated in its entirety to read as follows: "The principal amount of this Note shall mature and be payable in full on January 25, 2002." 3. Article 4 of the Promissory Note shall be amended and restated in its entirety to read as follows: "(a) Interest shall be payable on the principal amount of this Note outstanding from time to time at a rate equal to (i) the Interest Rate during the period from and including January 1, 2002 through and including January 11, 2002 and (ii) an annual rate of interest equal to the rate publicly announced by JPMorgan Chase Bank in New York, New York as its 30-day LIBOR rate in effect on the date hereof plus 100 basis points (the Extension --------- Interest Rate") during the period from and including ------------- January 12, 2002 through the date on which full payment has been made in accordance with the terms of this Note. Such Interest shall be payable, in arrears (calculated on the basis of a 360 day year), on January 25, 2002. (b) Any principal amount hereof which is not paid when due (whether at the stated maturity, by acceleration or otherwise) shall bear interest during the period from and including the date due to the date of payment in full at the rate Extension Interest Rate, both before and after judgment." Except as expressly modified by this Limited Waiver and Amendment Letter, all of the terms and provisions of the Promissory Note shall remain in full force and effect. This Limited Waiver and Amendment Letter is executed pursuant to the Promissory Note, and shall be construed and administered in accordance with all of the terms and provisions of the Promissory Note. Jeffrey Sherman January 11, 2002 Page 3 This Limited Waiver and Amendment Letter shall become effective upon the execution of counterparts hereof by Borrower and Payees. If you are in agreement with the foregoing terms, kindly execute this Limited Waiver and Amendment Letter in the space provided below and deliver an executed counterpart of this Limited Waiver and Amendment Letter to Borrower. Very truly yours, IMMUNEX CORPORATION By: /s/ Barry G. Pea -------------------------------------------- Barry G. Pea Executive Vice President The Limited Waiver and Amendment set forth above is hereby agreed to and accepted as of the date first above written: AMERICAN HOME PRODUCTS CORPORATION By: /s/ Jeffrey S. Sherman -------------------------------------------- Jeffrey S. Sherman Vice President AHP SUBSIDIARY HOLDING CORPORATION By: /s/ Jack M. O'Connor -------------------------------------------- Jack M. O'Connor VP & Treasurer -----END PRIVACY-ENHANCED MESSAGE-----