Table of Contents
`
`UNITED STATES
`
`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
`Date of Report (Date of earliest event reported): June 20, 2003
`
`BIOGEN, INC.
`
`(Exact name of registrant as specified in its charter)
`
`Massachusetts
`
`0-12042
`
`(Commission File Number)
`(State or other jurisdiction of incorporation)
`14 Cambridge Center, Cambridge, Massachusetts 02142
`
`04-3002117
`
`(IRS Employer Identification No.)
`
`(Address of principal executive offices) (zip code)
`Registrant’s telephone number. including area code: (617) 679-2000
`
`Not Applicable
`
`(Former name or former address, if changed since last report)
`
`Page 1 0‘ 91
`
`Biogen Exhibit 2049
`Coalition v. Biogen
`IPR2015-01993
`
`

`

`TABLE OF CONTENTS
`
`Item 5. Other Events.
`Item 7. Fmancial Statements and Exhibits
`SIGNATURES
`
`Ex-2.1 Aggment and Plan of Merger
`Ex-4.1 Second Agreement and Amendment to Rights
`Ex-99.1 Joint Press Release dated June 23 2003
`
`Page 2 of 91
`
`

`

`Table of Contents
`
`Item 5. Other Events.
`
`M er
`
`nt
`
`On June 20, 2003, Biogen, Inc., a Massachusetts corporation (“Biogen”), entered into an Agreement and Plan of Merger, dated as of June 20,
`2003. by and among II)EC Pharmaceuticals Corporation, a Delaware corporation (“IDEC”), Bridges Merger Corporation, a Massachusetts
`corporation and wholly-owned subsidiary of IDEC (“Merger Sub”) and Biogen (the “Merger Agreement”). Pursuant to the Merger Agreement,
`Merger Sub will be merged with and into Biogen, with Biogen surviving as a wholly-owned subsidiary of IDEC.
`
`Upon completion of the merger, each issued and outstanding share of Biogen common stock, par value $.01 per share (“Biogen Common
`Stock”), will be automatically converted into the right to receive 1.150 (the “Exchange Ratio”) fully paid and nonassessable shares of IDEC
`common stock, par value $0005 per share (“IDEC Common Stock”). In addition, upon completion of the merger, IDEC will assume all options
`then outstanding under Biogen’s existing stock plans, each of which will be exercisable for a number of shares of IDEC Common Stock, at an
`exercise price, adjusted to reflect the Exchange Ratio.
`
`Completion of the merger is subject to several conditions, including approval by Biogen’s stockholders, approval by IDEC’s stockholders of the
`issuance of IDEC shares in the merger and an amendment to IDEC’s certificate of incorporation, effectiveness of IDEC’s Form S-4 registration
`statement to be filed with the Securities and Exchange Commission, expiration or termination of applicable waiting periods under the IIart-Scott-
`Rodino Antitrust Improvements Act of 1976 and clearance under any applicable foreign antitrust laws, and other customary closing conditions.
`
`The merger is intended to qualify as a tax-free reorganization under Section 368(3) of the Internal Revenue Code of 1986, as amended.
`
`Amendment of Rights Agreement to Exempt Merger
`and Reduce Aggy‘'|_rg Person Ownership Threshold to 10%
`
`In addition, on June 20, 2003, pursuant to the terms of Biogen’s Rights Agreement, dated May 8, 1999, as amended, Biogen and EquiServe
`Trust Company, N.A. (“EquiServe”), as Rights Agent, entered into the Second Agreement and Amendment to the Rights Agreement, dated
`June 20, 2003, between Biogen and EquiServe (the “Rights Agreement Amendment”). The Rights Agreement Amendment, among other things
`(i) provides that neither the execution and delivery of the Merger Agreement, nor the consurmnation of the merger or the transactions contemplated
`by the Merger Agreement, will result in the rights becoming exercisable or in IDEC or its existing and future affiliates and associates being
`deemed an “Acquiring Person” under the Rights Agreement (generally, a person (other than certain excluded persons) who acquires beyond a
`certain percentage of beneficial ownership of the Company’s then outstanding common stock, which could result in the rights becoming
`exercisable), (ii) reduces the beneficial ownership threshold for determining who may be an “Acquiring Person” from 20% of Biogen’s then
`outstanding common stock to 10%, subject to certain exceptions, and (iii) provides that, in
`
`2
`
`Page 3 of 91
`
`

`

`Table of Contents
`
`general, the outstanding rights may be redeemed by Biogen’s Board of Directors during a 10-business day period following the day it becomes
`publicly known that a person (other than certain excluded persons) has acquired beneficial ownership of 10% or more the Company's then
`outstanding common stock.
`
`The foregoing summary of the merger and the Merger Agreement is subject to, and qualified in its entirety by, the Merger Agreement and the
`joint press release, dated June 23, 2003, issued by Biogen and IDEC, attached as exhibits 2.1 and 99.1 respectively, and incorporated herein by
`reference. The foregoing summary of the Rights Agreement Amendment is subject to, and qualified in its entirety by, the Rights Agreement
`Amendment attached as Exhibit 4.1 and incorporated by reference herein.
`
`Item 7. Financial Statements and Exhibits
`
`(a)
`(b)
`(c)
`
`Not Applicable.
`Not Applicable.
`Exhibits.
`
`Exllfl
`No.
`
`B1
`
`2.1
`
`4.1
`
`99.1
`
`Agreement and Plan of Merger, dated June 20, 2003, by and among
`[DEC Phannaceuticals Corporation, Bridges Merger Corporation and
`Biogen, Inc.
`Second Agreement and Amendment to Rights Agreement, dated
`June 20, 2003, by and between Biogen, Inc. and EquiServe Trust
`Company, N.A., as rights agent
`Joint Press Release, dated June 23, 2003
`3
`
`Page 4 of 91
`
`

`

`Table of Contents
`
`SIGNATURES
`
`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.
`
`Date: June 23, 2003
`
`BIOGEN, INC.
`(Registrant)
`
`Isl Anne Marie Cook
`
`By: Anne Marie Cook
`Vice President, Chief Corporate Counsel
`
`4
`
`Page 5 of 91
`
`

`

`Table of Contents
`
`EXHIBIT INDEX
`
`Exhibit
`No.
`
`Exhibit
`
`2.1
`
`4.1
`
`99.1
`
`Agreement and Plan of Merger, dated June 20, 2003, by and among
`IDEC Pharmaceuticals Corporation, Bridges Merger Corporation and
`Biogen, Inc.
`Second Agreement and Amendment to Rights Agreement, dated
`June 20, 2003, by and between Biogen, Inc. and EquiServe Trust
`Company, N.A., as rights agent
`Joint Press Release, dated June 23, 2003
`5
`
`Page 6 of 91
`
`

`

`
`
`Page 7 of 91
`
`

`

`AGREEMENT AND PLAN OF MERGER
`
`BY AND AMONG
`
`IDEC PHARMACEUTICALS CORPORATION,
`BRIDGES MERGER CORPORATION
`AND
`
`BIOGEN, INC.
`DATED AS OF JUNE 20, 2003
`
`EXHIBIT 2.1
`
`Page 8 of 91
`
`

`

`AGREEMENT AND PLAN OF MERGER
`
`TABLE OF CONTENTS
`
`ARTICLE I THE MERGER
`
`SECTION 1.1
`SECTION 1.2
`SECI'ION 1.3
`
`SECTION 1.4
`SECI'ION 1.5
`SECTION 1.6
`SECTION 1.7
`SECTION 1.8
`SECTION 1.9
`
`The Merger
`Closing
`Effective Time
`
`Effects of The Merger
`Purposes of the Surviving Corporation
`Organizational Documents of the Surviving Corporation
`Directors and Officers of the Surviving Corporation
`IDEC Chatter Amendment
`Alternative Structure
`
`ARTICLE II EFFECTS OF THE MERGER; EXCHANGE OF CERTIFICATES
`SECTION 2.1
`Effect on Capital Stock
`SECTION 2.2
`Exchange of Shares and Certificates
`ARTICLE III REPRESENTATIONS AND WARRANTIES
`
`Representations and Wananties of Biogen
`SECTION 3.1
`Representations and Warranties of IDEC and Merger Sub
`SECTION 3.2
`ARTICLE IV COVENANTS RELATING TO CONDUCT OF BUSINESS
`SECTION 4.1
`Conduct of Business
`SECTION 4.2
`No Solicitation
`ARTICLE V ADDITIONAL AGREEMENTS
`
`SECTION 5.1
`SECTION 5.2
`
`SECTION 5.3
`SECTION 5.4
`SECTION 5.5
`
`SECTION 5.6
`SECTION 5.7
`
`SECTION 5.8
`SECTION 5.9
`SECTION 5.10
`SECTION 5.1 1
`SECTION 5.12
`SECTION 5.13
`SECTION 5.14
`
`SECTION 5.15
`SECTION 5.16
`SECTION 5.17
`SECTION 5.18
`
`Preparation of SEC Documents; Stockholders’ Meetings
`Accountant’s Letters
`
`Access to Information; Confidentiality
`Reasonable Efforts
`Indemnification and Insurance
`
`Fees and Expenses
`Public Announcements
`
`Listing
`Tax-Free Reorganization Treatment
`Post-Agreement Operations
`Conveyance Taxes
`Equity Awards and Employee Benefits
`Consents of Accountants
`IDEC Board
`
`Affiliate Legends
`Notification of Certain Matters
`Section 16 Matters
`
`Rights Plans; State Takeover Laws
`i
`
`Sg5o'3338a~°‘.t>w"‘~toN~Nto~—-"‘
`
`Page 9 of 91
`
`

`

`49
`49
`49
`50
`50
`51
`
`53
`53
`55
`55
`55
`55
`55
`56
`59
`62
`62
`62
`63
`63
`63
`63
`63
`63
`63
`
`A-l
`
`SECI'ION 5.19
`SECTION 5.20
`
`Reservation of IDEC Common Stock
`
`Nonsurvival of Representations and Wananties
`Notices
`Definitions
`Terms Defined Elsewhere
`
`Actions with Respect to the New IDEC Stock Plan and the New IDEC Annual
`Bonus Plan
`ARTICLE VI CONDITIONS PRECEDENT
`SECTION 6.1
`Conditions to Each Party’s Obligation to Effect ‘The Merger
`SECI'ION 6.2
`Conditions to Obligations of Biogen
`SECTION 6.3
`Conditions to Obligations of IDEC and Merger Sub
`ARTICLE VII TERMINATION, AMENDMENT AND WAIVER
`SECTION 7.1
`Termination
`Effect of Termination
`SECI'ION 7.2
`SECTION 7.3
`Payments
`Amendment
`SECTION 7.4
`SECTION 7.5
`Extension; Waiver
`ARTICLE VIII GENERAL PROVISIONS
`SECTION 8.1
`SECTION 8.2
`SECTION 8.3
`SECTION 8.4
`SECTION 8.5
`SECTION 8.6
`SECTION 8.7
`SECTION 8.8
`SECTION 8.9
`SECTION 8.10
`SECTION 8.11
`SECTION 8.12
`SECTION 8.13
`SECTION 8.14
`SECTION 8.15
`EXI-IIBTT A
`
`Interpretation
`Counterparts
`Entire Agreement; No Third-Party Beneficiaries
`Governing Law
`Assignment
`Consent to Jurisdiction
`
`Headings, etc.
`Severability
`Failure or Indulgence Not Waiver; Remedies Cumulative
`Waiver of Jmy Trial
`Specific Performance
`FORM OF IDEC CERTIFICATE OF AMENDMENT
`ii
`
`Page 10 of 91
`
`

`

`AGREEMENT AND PLAN OF MERGER
`
`THIS AGREEMENT AND PLAN OF MERGER (this "Agreement”) is made and entered into as of June 20, 2003, by and among IDEC
`PHARMACEUTICALS CORPORATION, a Delaware corporation ( “lDEC ”), BRIDGES MERGER CORPORATION, a Massachusetts
`corporation and a direct wholly owned subsidiary of IDEC (‘Merger Sub ”), and BIOGEN, INC., a Massachusetts corporation ( “Biogen ”).
`
`WITNESSETH:
`
`WHEREAS, the respective Boards of Directors of IDEC, Merger Sub and Biogen have deemed it advisable and in the best interests of their
`respective corporations and stockholders that IDEC and Biogen engage in a business combination in a merger of equals in order to advance their
`respective long—term strategic business interests; and
`
`WHEREAS, in furtherance thereof, the Boards of Directors of each of IDEC, Merger Sub and Biogen have approved this Agreement and the
`merger of Merger Sub with and into Biogen with Biogen continuing as the surviving corporation (the ‘Merger ”), upon the terms and subject to the
`conditions set forth in this Agreement and in accordance with the provisions of the Massachusetts Business Corporation Law (the “MBCL "); and
`
`WHEREAS, the Board of Directors of Biogen has determined to recommend to its stockholders the approval and adoption of this Agreement
`and the Merger; and
`
`WHEREAS, the Board of Directors of IDEC has determined to recommend to its stockholders approval of the IDEC Charter Amendment (as
`defined in Section 1.8) and the issuance of shares of IDEC Common Stock (as defined in Section 2.1(a)) in connection with the Merger (the
`“Share Issuance ”); and
`
`WHEREAS, IDEC, as the sole stockholder of Merger Sub, has approved this Agreement and the Merger; and
`
`WHEREAS, for United States federal income tax purposes, it is intended that the Merger shall qualify as a reorganization within the meaning
`of Section 368(a) of the Intemal Revenue Code of 1986, as amended (the “Code ’), and this Agreement is intended to be, and is hereby, adopted as
`a plan of reorganization within the meaning of Section 368 of the Code.
`
`NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements set forth herein, and for
`other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
`
`ARTICLE I
`
`THE MERGER
`
`The Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the MBCL, at
`SECTION 1.1
`the Effective Time (as defined in Section 1.3), Merger Sub shall be merged with and into Biogen, the separate corporate existence of Merger Sub
`shall cease and Biogen shall continue as the surviving corporation in the Merger (the "Surviving Corporation ”) and shall succeed to and assume all
`the property, rights, privileges, powers and franchises of Merger Sub in accordance with the MBCL.
`
`Closing. The closing of the Merger (the “Closing ") shall take place at 10:00 a.m., Boston time, on a date to be specified by
`SECTION 1.2
`the parties, which shall be no later than the second business day after satisfaction or waiver of all of the conditions set forth in Article VI (other
`than delivery of items to be delivered at the Closing and other than those conditions that by their nature are to be satisfied at the Closing, it being
`understood that the occurrence of the Closing shall remain subject to the delivery of such
`
`I
`
`Page 11 of 91
`
`

`

`items and the satisfaction or waiver of such conditions at the Closing) at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, One Beacon
`Street, Boston, Massachusetts, unless another time, date or place is agreed to in writing by the parties hereto. The date on which the Closing occurs
`is referred to herein as the "Closing Date. ”
`SECTION 1.3
`Effective Time. Subject to the terms and conditions of this Agreement, as soon as practicable on the Closing Date, the parties
`shall cause the Merger to be consummated by filing articles of merger executed in accordance with the relevant provisions of the MBCL (the
`“Articles ofMerger ’) with the Secretary of State of the Commonwealth of Massachusetts (the “Secretary ofState ") and shall make all other filings
`or recordings required under the MBCL. The Merger shall become effective at such time as the Articles of Merger are duly filed with the Secretary
`of State, or at such subsequent date or time as IDEC and Biogen shall agree and specify in the Articles of Merger. The time at which the Merger
`becomes effective is referred to herein as the “Eflective Time. ”
`
`Effects ofThe Merger. At the Effective Time, the Merger shall have the effects set forth in this Agreement and in the
`SECTION 1.4
`applicable provisions of the MBCL.
`
`Purposes ofthe Surviving Corporation. The purposes of the Surviving Corporation shall be as set forth in Article 2 of the
`SECTION 1.5
`articles of organization of the Surviving Corporation.
`
`SECTION 1.6 Organizational Documents ofthe Surviving Corporation At the Effective Time, the Biogen Charter (as defined in
`Section 3. I(a)(ii)) shall be amended and restated in its entirety to be identical to the articles of organization of Merger Sub, as in efi'ect immediately
`prior to the Effective Time, until thereafter amended in accordance with the MBCL and as provided in such articles of organization; provided,
`however, that at the Effective Time, Article I of the articles of organization of the Surviving Corporation shall be amended and restated in its
`entirety to read as follows: “The name of the corporation is Biogen, Inc.” After the Effective Time, the authorized capital stock of the Surviving
`Corporation shall consist of 1,000 shares of common stock, par value $.01 per share. At the Effective Time, the Biogen By-Laws (as defined in
`Section 3.1(a)(ii)) shall be amended and restated in their entirety to be identical to the by-laws of Merger Sub, as in effect immediately prior to the
`Effective Time, until thereafter amended in accordance with the MBCL and as provided in such by-laws.
`
`SECTION 1.7 Directors and Oflicers ofthe Surviving Corporation. The initial directors of the Surviving Corporation shall be the IDEC
`Designated Directors (as defined in Section 5.14) and the Biogen Designated Directors (as defined in Section 5.10, until their respective
`successors are duly elected or appointed and qualified. The initial officers of the Surviving Corporation shall be the officers of Biogen immediately
`prior to the Effective Time, until their respective successors are duly appointed.
`
`IDEC Charter Amendment. Immediately prior to the Effective Time, and subject to the terms and conditions of this
`SECTION 1.8
`Agreement and receipt of IDEC Stockholder Approval (as defined in Section 3.2(c)(iii)), pursuant to the applicable provisions of Delaware General
`Corporation Law, IDEC shall cause the IDEC Charter (as defined in Section 3.2(a)(ii)) to be amended (the “IDEC Charter Amendment ") to
`(i) change the name of IDEC to ‘BIOGEN IDEC, INC.” and (ii) increase the number of authorized shares of Il)EC Common Stock to one billion
`(l,0()0,000,000) shares, by filing a Certificate of Amendment substantially in the form of Exhibit A hereto (the “IDEC Certificate ofAmendment ’)
`with the Secretary of State of the State of Delaware in accordance with applicable provisions of the Delaware General Corporation Law.
`
`SECTION 1.9 Alternative Structure. Biogen and IDEC may mutually agree to revise the structure of the Merger provided for herein at any
`time prior to receipt of either Biogen Stockholder Approval (as defined in Section 3. I(c)(iii)) or IDEC Stockholder Approval, or at any time
`thereafter if, with appropriate disclosure, any required further approval of the revised structure is obtained from the stockholders of Biogen and
`IDEC, as applicable; provided, however, that under any such revised structure the Merger would qualify as a reorganization within the meaning of
`Section 368(a) of the Code. Biogen and lDEC agree to consider in good faith the request of the other party to revise the structure of the Merger
`from that set forth herein.
`
`Page 12 of 91
`
`

`

`ARTICLE II
`
`EFFECTS OF THE MERGER; EXCHANGE OF CERTIFICATES
`
`Efiect on Capital Stock. Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger
`SECTION 2.1
`and without any action on the part of IDEC, Merger Sub, Biogen or the holders of any shares of common stock, par value $0.01 per share, of
`Biogen (together with any associated Biogen Rights (as defined in Section 3.1(b)(i)), “Biogen Common Stock’):
`
`(a) Conversion ofBiogen Common Stock. Each share of Biogen Common Stock issued and outstanding immediately prior to the Effective
`‘lime, other than any shares of Biogen Common Stock to be canceled pursuant to Section 2. I(c) or, subject to Section 2. I(g), held by a
`Dissenting Holder (as defined in Section 2.1(g)(i)), shall be automatically converted into the right to receive 1.150 (the “Exchange Ratio ’)
`fully paid and nonassessable shares of common stock, par value $0.0005 per share ( “IDEC Common Stock ”), of IDEC (together with any
`associated IDEC Rights (as defined in Section 3.2(b)(i)), the "Merger Consideration ’)) upon surrender of the Certificate (as defined in
`Section 2.2(b)) which immediately prior to the Effective Time represented such share of Biogen Common Stock in the manner provided in
`Section 2.2(b) (or, in the case of a lost, stolen or destroyed certificate, Section 2.2(i)). As a result of the Merger, at the Effective Time, each
`holder of a Certificate shall cease to have any rights with respect thereto, except (i) the right to receive the Merger Consideration payable in
`respect of the shares of Biogen Common Stock represented by such Certificate immediately prior to the Effective Time, any cash in lieu of
`fractional shares payable pursuant to Section 2. I(e) and any dividends or other distributions payable pursuant to Section 2.2(c), all to be issued
`or paid, without interest, in consideration therefor upon the surrender of such Certificate in accordance with Section 2.2(b) or (ii) in the case of
`a Dissenting Holder, the rights set forth in Section 2.1(g).
`(b) Capital Stock ofMerger Sub. Each issued and outstanding share of common stock, par value $0.01 per share, of Merger Sub shall be
`converted into one fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation.
`(c) Cancellation of Treasury Shares. Each share of Biogen Common Stock held in the treasury of Biogen, if any, shall automatically be
`extinguished without any conversion, and no consideration shall be delivered in respect thereof.
`((1) Biogen Options and Employee Stock Purchase Plans. At the Effective Time, (i) all options to purchase Biogen Common Stock (each, a
`"Biogen Option ") issued and outstanding under each Biogen Stock Plan (as defined in Section 3.1(b)(i)) shall be assumed by IDEC in
`accordance with Section 5.I2(a) and (ii) all rights outstanding under Biogen’s 1983 Employee Stock Purchase Plan, as amended and restated,
`and the 1994 International Employee Stock Purchase Plan, as amended and restated (collectively, the “Biogen Purchase Plans '), shall be
`treated as set forth in Section 5.12(b).
`(e) Fractional Shares. No fraction of a share of IDEC Common Stock will be issued by virtue of the Merger, but in lieu thereof each holder
`of shares of Biogen Common Stock who would otherwise be entitled to a fraction of a share of IDEC Common Stock (after aggregating all
`fractional shares of IDEC Common Stock that otherwise would be received by such holder) shall, upon surrender of such holder's
`Certificate(s), receive from IDEC an amount of cash (rounded to the nearest whole cent), without interest, equal to the product of: (i) such
`fraction, multiplied by (ii) the average closing price of one share of IDEC Common Stock for the ten (10) most recent trading days that IDEC
`Common Stock has traded ending on the trading day one day prior to the Effective Time, as reported on the Nasdaq National Market.
`(0 Adjustments to Exchange Ratio. The Exchange Ratio shall be adjusted to reflect fully the appropriate effect of any stock split, reverse
`stock split, stock dividend (including any dividend or distribution of securities converfible into IDEC Common Stock or Biogen Common
`Stock), reorganization, recapitalization, reclassification or other like change with respect to IDEC Common
`
`3
`
`Page 13 of 91
`
`

`

`Stock or Biogen Common Stock having a record date on or after the date hereof and prior to the Effective Time.
`(g) Dissenter's Rights.
`
`(i) No conversion under Section 2.1(a) hereof shall occur with respect to the shares of Biogen Common Stock held by a Dissenting
`Holder; provided, however, that each share of Biogen Common Stock outstanding immediately prior to the Effective Time and held by a
`Dissenting Holder who shall, after the Effective Time, withdraw his demand for appraisal or lose his right of appraisal, in either case
`pursuant to the applicable provisions of the MBCL, shall be deemed to be convened, as of the Effective Time, into the Merger
`Consideration as set forth in Section 2. I(a) hereof. The tenn “Dissenting Holder" shall mean a holder of Biogen Common Stock who has
`demanded appraisal rights in compliance with the applicable provisions of the MBCL concerning the right of such holder to dissent from
`the Merger and demand appraisal of such holder's shares of Biogen Common Stock.
`(ii) Any Dissenting Holder (A) who (1) files with Biogen a written objection to the Merger before the Biogen Stockholders’ Meeting
`(as defined in Section 5.1(b)) and (2) states in such objection that he intends to demand payment for his shares if the Merger is
`consummated and (B) whose shares are not voted in favor of the Merger shall be entitled to demand payment from Biogen for his shares
`of Biogen Common Stock and an appraisal of the value thereof, in accordance with the provisions of Sections 86 through 98 of the
`MBCL.
`
`SECTION 2.2
`
`Exchange ofShares and Certificates.
`
`(a) Exchange Agent. At or prior to the Effective Time, IDEC shall engage an institution reasonably satisfactory to Biogen to act as
`exchange agent in connection with the Merger (the “Exchange Agent "), pursuant to an agreement reasonably satisfactory to Biogen. At the
`Effective Time, IDEC shall deposit with the Exchange Agent, in trust for the benefit of the holders of shares of Biogen Common Stock
`immediately prior to the Effective Time, certificates representing the shares of IDEC Common Stock issuable pursuant to Section 2.1(a). In
`addition, IDEC shall make available by depositing with the Exchange Agent, as necessary from time to time after the Effective Time as
`needed, cash in an amount sufiicient to make the payments in lieu of fractional shares pursuant to Section 2.1(e) and any dividends or
`distributions to which holders of shares of Biogen Common Stock may be entitled pursuant to Section 2.2(c). All cash and IDEC Common
`Stock deposited with the Exchange Agent shall hereinafter be referred to as the “Exchange Fund. ”
`(b) Exchange Procedures. Promptly after the Effective Time, IDEC shall cause the Exchange Agent to mail to each holder of record of a
`certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Biogen Common Stock (the
`“Cemficates ’), which at the Effective Time were converted into the right to receive the Merger Consideration pursuant to Section 2.1 hereof,
`(i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass only upon
`delivery of the Certificates to the Exchange Agent and shall be in such form and have such other provisions as IDEC may reasonably specify)
`and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing whole shares of IDEC
`Common Stock, cash in lieu of any fractional shares pursuant to Section 2.1(e) and any dividends or other distributions payable pursuant to
`Section 2.2(c). Upon surrender of Certificates for cancellation to the Exchange Agent or to such other agent or agents as may be appointed by
`IDEC, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other
`documents as may reasonably be required by the Exchange Agent, the holder of such Certificates shall be entitled to receive in exchange
`therefor a certificate representing that number of whole shares of IDEC Common Stock (after taking into account all Certificates surrendered
`by such holder) to which such holder is entitled pursuant to Section 2.1 (which shall be uncertificated book entry form unless a physical
`certificate is requested), payment in lieu of fractional shares which such holder is entitled to receive pursuant to Section 2.1(e) and any
`dividends or distributions payable pursuant to Section 2.2(c), and
`
`Page 14 of 91
`
`

`

`the Certificates so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Biogen Common Stock which is not
`registered in the transfer records of Biogen, a certificate representing the proper number of shares of IDEC Common Stock may be issued to a
`Person (as defined in Section 8.3(0)) other than the Person in whose name the Certificate so surrendered is registered, if such Certificate shall
`be properly endorsed or otherwise be in proper form for transfer and the Person requesting such issuance shall pay any transfer or other taxes
`required by reason of the issuance of shares of IDEC Common Stock to a Person other than the registered holder of such Certificate or
`establish to the satisfaction of IDEC that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.2(b),
`each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration (and any
`amounts to be paid pursuant to Section 2.](e) or Section 2.2(c)) upon such surrender. No interest shall be paid or shall accrue on any amount
`payable pursuant to Section 2. I(e) or Section 2.2(c).
`(c) Distributions with Respect to Unexchanged Shares. No dividends or other distributions with respect to IDEC Common Stock with a
`record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of IDEC Common
`Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2. I(e) hereof,
`until such Certificate has been surrendered in accordance with this Article 11. Subject to Applicable Law (as defined in Section 3.I(g)(i)),
`following surrender of any such Certificate, there shall be paid to the recordholder thereof, without interest, (i) promptly after such surrender,
`the number of whole shares of IDEC Common Stock issuable in exchange therefor prnsuant to this Article II, together with any cash payable
`in lieu of a fractional share of IDEC Common Stock to which such holder is entitled pursuant to Section 2.1(e) and the amount of dividends or
`other distributions with a record date after the Effective ‘lime theretofore paid with respect to such whole shares of IDEC Common Stock, and
`(ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment
`date subsequent to such surrender payable with respect to such whole shares of IDEC Common Stock.
`(d) No Further Ownership Rights in Biogen Common Stock. All shares of IDEC Common Stock issued upon the surrender for exchange of
`Certificates in accordance with the terms of this Article II and any cash paid pursuant to Section 2.1(e) or Section 2.2(c) shall be deemed to
`have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Biogen Common Stock previously represented by such
`Certificates. At the Effective Time, the stock transfer books of Biogen shall be closed and there shall be no further registration of transfers on
`the stock transfer books of the Surviving Corporation of the shares of Biogen Common Stock which were outstanding immediately prior to the
`Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason,
`they shall be canceled and exchanged as provided in this Article 11.
`(e) Termination ofExchange Fund. Any portion of the Exchange Fund which remains undistributed to the holders of Certificates one year
`after the Effective Time shall be delivered to IDEC, upon demand, and any holders of Certificates who have not theretofore complied with this
`Article II shall thereafter look only to IDEC for payment of their claim for the Merger Consideration, any cash in lieu of fractional shares of
`IDEC Common Stock pursuant to Section 2. I(e) and any dividends or distributions pursuant to Section 2.2(c).
`(f) No Liability. None of IDEC, Merger Sub, Biogen or the Exchange Agent shall be liable to any Person in respect of any shares of IDEC
`Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to
`any applicable abandoned property, escheat or similar law. If any Certificate shall not have been surrendered prior to seven years after the
`Effective Time, or immediately prior to such earlier date on which any shares of IDEC Common Stock, any cash in lieu of fractional shares of
`IDEC Common Stock or any dividends or distributions with respect to IDEC Common Stock issuable in respect of
`
`S
`
`Page 15 of 91
`
`

`

`such Certificate would otherwise escheat to or become the property of any Govemmental Entity (as defined in Section 3.1(c)(v)), any such
`shares, cash, dividends or distributions in respect of such Certificate shall, to the extent permitted by Applicable Law, become the property of
`the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
`(g) Investment ofExchange Fund. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by IDEC on a
`daily basis provided that no such investment or loss thereon shall affect the amormts payable to former stockholders of Biogen after the
`Effective Time pursuant to this Article II. Any interest and other income resulting from such investment shall become a part of the Exchange
`Fund, and any amounts in excess of the amormts payable pursuant to this Article I! shall promptly be paid to IDEC.
`(h) Withholding Rights. IDEC or the Exchange Agent shall be entitled to deduct and withhold from any consideration payable pursuant to
`this Agreement to any Person who was a holder of Biogen Common Stock immediately prior to the Effective Time such amounts as IDEC or
`the Exchange Agent may be required to deduct and withhold with respect to the making of such payment under the Code, or any provision of
`federal, state, local or foreign tax law. To the extent that amounts are so withheld by IDEC or the Exchange Agent, such withheld amounts
`shall be treated for all purposes of this Agreement as having been paid to the Person to whom such consideration would otherwise have been
`paid.
`(i) lost, Stolen or Destroyed Certificates. In the event any Certificates shall hav