EXHIBIT 99.2
EXECUTION COPY
NPS PHARMACEUTICALS, INC.
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
February 19, 2003, between Enzon Pharmaceuticals, Inc., a Delaware corporation
("Enzon") and the undersigned Stockholder of NPS ("Stockholder").
RECITALS
A. Momentum Merger Corporation, a Delaware corporation ("Holdco"),
Enzon, NPS Pharmaceuticals, Inc., a Delaware corporation ("NPS"), Xxxxxx
Acquisition Corporation, a Delaware corporation ("Xxxxxx Merger Sub"), and
Einstein Acquisition Corporation, a Delaware corporation ("Einstein Merger
Sub"), have entered into an Agreement and Plan of Reorganization (as such
agreement may hereafter be amended from time to time in conformity with the
provisions thereof, the "Reorganization Agreement") which provides for the
merger of Xxxxxx Merger Sub with and into NPS and the merger of Enzon with and
into Einstein Merger Sub, pursuant to which mergers NPS will become a wholly
owned subsidiary of Holdco and Einstein Merger Sub will continue as a wholly
owned subsidiary of Holdco (together, the "Mergers"). Pursuant to the Mergers,
all outstanding common stock of NPS and all outstanding common stock of Enzon
will be converted into the right to receive shares of Common Stock, par value
$0.001 per share, of Holdco ("Holdco Common Stock").
B. Stockholder is the beneficial owner (as such term is defined under
Rule 13(d)(3) promulgated under the Securities Exchange Act of 1934, as amended)
of such number of shares of Common Stock, par value $0.001 per share, of NPS
("NPS Common Stock") as set forth on the signature page hereof, and options,
warrants or other rights to acquire such number of shares of NPS Common Stock as
set forth on the signature page hereof.
C. As an inducement and a condition to entering into the Reorganization
Agreement, Enzon has requested that Stockholder agree, and Stockholder has
agreed (in Stockholder's capacity as such), to enter into this Agreement in
order to facilitate the consummation of the Mergers.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Definitions.
(a) For the purposes of this Agreement, capitalized terms that
are used but not defined herein shall have the respective meanings ascribed
thereto in the Reorganization Agreement.
(b) "Expiration Date" shall mean the earlier to occur of (i)
such date and time as the Reorganization Agreement shall have been validly
terminated pursuant to its terms, or (ii) such date and time as the Mergers
shall become effective in accordance with the terms and conditions set forth in
the Reorganization Agreement.
(c) "Person" shall mean any individual, any corporation,
limited liability company, general or limited partnership, business trust,
unincorporated association or other business organization or entity, or any
governmental authority.
(d) "Shares" shall mean: (i) all securities of NPS (including
all shares of NPS Common Stock and all options, warrants and other rights to
acquire shares of NPS Common Stock) owned by Stockholder as of the date of this
Agreement, and (ii) all additional securities of NPS (including all additional
shares of NPS Common Stock and all additional options, warrants and other rights
to acquire shares of NPS Common Stock) of which Stockholder acquires beneficial
ownership during the period commencing with the execution and delivery of this
Agreement until the Expiration Date.
(e) A Person shall be deemed to have effected a "Transfer" of
a security if such Person directly or indirectly (i) offers for sale, sells,
assigns, pledges, encumbers, grants an option with respect to, transfers or
otherwise disposes of such security or any interest therein, or (ii) enters into
an agreement, commitment or other arrangement providing for the sale of,
assignment of, pledge of, encumbrance of, granting of an option with respect to,
transfer of or disposition of such security or any interest therein; provided,
however, that the granting by Stockholder of a security interest in Shares to a
brokerage firm to secure a cash loan from such brokerage firm for the purpose of
purchasing shares of NPS Common Stock upon exercise of NPS Options outstanding
on the date of this Agreement shall not be deemed a "Transfer" for purposes of
this Agreement.
2. Restriction on Transfer, Proxies and Non-Interference; Stop
Transfer. Except as expressly contemplated by this Agreement, at all times
during the period commencing with the execution and delivery of this Agreement
and continuing until the Expiration Date, Stockholder shall not, directly or
indirectly, (i) cause or permit the Transfer of any of the Shares to be
effected, or discuss, negotiate or make any offer regarding any Transfer of any
of the Shares, (ii) grant any proxies or powers of attorney with respect to any
of the Shares, deposit any of the Shares into a voting trust or enter into a
voting agreement or other similar commitment or arrangement with respect to any
of the Shares in contravention of the obligations of Stockholder under this
Agreement, (iii) request that NPS register the Transfer of any certificate or
uncertificated interest representing any of the Shares, or (iv) take any action
that would make any representation or warranty of Stockholder contained herein
untrue or incorrect, or have the effect of preventing or disabling Stockholder
from performing any of Stockholder's obligations under this Agreement.
Stockholder hereby agrees that, in order to ensure compliance with the
restrictions referred to herein, NPS may issue appropriate "stop transfer"
instructions to its transfer agent in respect of the Shares. Notwithstanding the
foregoing or anything to the contrary set forth in this Agreement, (A)
Stockholder may Transfer any or all of the Shares pursuant to, and in accordance
with, the terms of Stockholder's 10b-5 plan or arrangement with NPS, if any, as
in effect as of the date hereof or any such plan or arrangement that is
reinstated or adopted following the date hereof, (B) Stockholder may sell Shares
for cash to the extent necessary to pay taxes incurred as a direct result of the
exercise of NPS Options after the date hereof, and (C) Stockholder may sell
Shares for cash to the extent necessary to pay taxes estimated to be incurred as
a direct result of the redemption or earlier conversion of Exchangeable Shares
held by them on the date of this Agreement.
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3. Voting Agreement. At any meeting of NPS's stockholders called with
respect to the following, however called, and at every adjournment or
postponement thereof, Stockholder shall appear at such meeting, in person or by
proxy, or otherwise cause all of the Shares to be counted as present thereat for
purposes of establishing a quorum thereat, and Stockholder shall vote, or cause
to be voted (and on every action or approval by written consent of stockholders
with respect to the following, act, or cause to be acted, by written consent)
with respect to all of the Shares that Stockholder is entitled to vote or as to
which Stockholder has the right to direct the voting, as of the relevant record
date:
(a) in favor of the approval and adoption of the
Reorganization Agreement and approval of the NPS Merger;
(b) against the approval of any proposal that would result in
a breach by NPS of the Reorganization Agreement; and
(c) against any proposal made in opposition to, or in
competition with, consummation of the Mergers (or either of them) and the other
transactions contemplated by the Reorganization Agreement, including any
Acquisition Proposal.
4. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Stockholder shall deliver to Enzon an irrevocable proxy in the form
attached hereto as Exhibit A (the "Proxy"), which shall be irrevocable to the
fullest extent permitted by applicable law, with respect to the Shares.
5. Representations and Warranties. Stockholder hereby represents and
warrants to Enzon and Holdco as follows:
(a) Ownership of Shares. Stockholder is the beneficial owner
(as such term is defined under Rule 13(d)(3) promulgated under the Securities
Exchange Act of 1934, as amended, except that such terms shall include Shares
that may be acquired more than sixty (60) days from the date hereof) of all of
the Shares. Stockholder has sole voting power and the sole power of disposition
with respect to all of the Shares, with no limitations, qualifications or
restrictions on such rights, subject to applicable federal securities laws and
the terms of this Agreement. Stockholder is the sole record holder (as reflected
in the records maintained by NPS's transfer agent for NPS Common Stock) of all
of the Shares.
(b) Power; Binding Agreement. Stockholder has the legal
capacity, power and authority to enter into and perform all of Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by Stockholder will not violate any agreement or court order to
which Stockholder is a party or is subject, including, without limitation, any
voting agreement or voting trust. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and binding
agreement of Stockholder, enforceable against Stockholder in accordance with its
terms.
(d) No Consents. To his, her or its knowledge, the execution
and delivery of this Agreement by Stockholder does not, and the performance by
Stockholder of his, her or its obligations hereunder will not, require
Stockholder to obtain any consent, approval, authorization or permit of, or to
make any filing with or notification to, any Governmental Authority.
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6. No Ownership Interest. Nothing contained in this Agreement shall be
deemed to vest in Enzon any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. Except as provided in this
Agreement, all rights, ownership and economic benefits relating to the Shares
shall remain vested in and belong to Stockholder.
7. Stockholder Notification of Acquisition of Additional Shares. At all
times during the period commencing with the execution and delivery of this
Agreement and continuing until the Expiration Date, Stockholder shall promptly
notify Enzon and Holdco of the number of any additional shares of NPS Common
Stock and the number and type of any other voting securities of NPS acquired by
Stockholder, if any, after the date hereof.
8. NPS Stop Transfer Instructions. At all times commencing with the
execution and delivery of this Agreement and continuing until the Expiration
Date, NPS shall not register the Transfer (by book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Shares unless
such Transfer is made pursuant to and in compliance with the terms and
conditions of this Agreement. NPS shall instruct its transfer agent for NPS
Common Stock (the "Transfer Agent") not to Transfer, at any time commencing with
the execution and delivery of this Agreement and continuing until the Expiration
Date, any certificate or uncertificated interest representing any of the Shares
unless and until the Transfer Agent has received Enzon's consent to effect any
such Transfer.
9. Termination. This Agreement shall terminate immediately and
automatically, without any action on the part of any party hereto, as of the
Expiration Date.
10. Directors and Officers. Notwithstanding anything in this Agreement
to the contrary, if Stockholder is a director or officer of NPS, nothing
contained in this Agreement shall prohibit such director or officer from acting
in his/her capacity as such or from taking such action as a director or officer
of NPS that may be required on the part of such person as a director or officer
of NPS, including acting in compliance with the Reorganization Agreement.
11. Miscellaneous.
(a) Entire Agreement. This Agreement and the documents and
instruments and other agreements among the parties hereto as contemplated by or
referred to herein, including the Reorganization Agreement and any other
agreements referred to in the Reorganization Agreement, constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
(b) Certain Events. This Agreement and the obligations
hereunder shall attach to all of the Shares and shall be binding upon any person
to whom legal or beneficial ownership of any of the Shares shall pass, whether
by operation of law or otherwise. Notwithstanding any Transfer of any of the
Shares, the transferor shall remain liable for the performance of all
obligations of the transferor under this Agreement. Notwithstanding the
foregoing or anything to the contrary set forth in this Agreement, this
Agreement and the obligations hereunder shall not attach to any Shares that are
Transferred, and shall not be binding upon any person to whom legal or
beneficial ownership of any of the Shares shall pass, in any Transfer effected
by Stockholder pursuant to the last sentence of Section 2 of this Agreement.
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(c) Assignment. No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other parties. Any purported assignment in violation of this
Section shall be void.
(d) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed duly given (i) on the date of delivery
if delivered personally, (ii) on the date of confirmation of receipt (or, the
first business day following such receipt if the date is not a business day) of
transmission by telecopy or telefacsimile, or (iii) on the date of confirmation
of receipt (or, the first business day following such receipt if the date is not
a business day) if delivered by a nationally recognized courier service. All
notices hereunder shall be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:
(i) if to Enzon, to: Enzon Pharmaceuticals, Inc.
000 Xxxxx 000/000
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Chief Executive Officer, President
and Chairman of the Board of Directors
Xxxxx Xxxxxx, Assistant General Counsel
Telephone No.: 000.000.0000
Telecopy No.: 908.575.1843
with copies to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Telephone No.: 000.000.0000
Telecopy No.: 212.953.7201
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Telephone No.: 000.000.0000
Telecopy No.: 801.933.7373
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(ii) if to Stockholder, to the address for notice set forth on the
signature page hereof.
with copies to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
0000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxxx X. X'Xxxxxx
Telephone No.: 000.000.0000
Telecopy No.: 801.993.6499
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Telephone No.: 000.000.0000
Telecopy No.: 000.000.0000
(f) Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the greatest extent possible,
the economic, business and other purposes of such void or unenforceable
provision.
(g) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(h) Governing Law; Venue. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles of conflicts
of law thereof. The parties hereby irrevocably submit to the jurisdiction of the
courts of the State of Delaware and the Federal courts of the United States of
America located in the State of Delaware solely in respect of the interpretation
and enforcement of the provisions of this Agreement and of the documents
referred to in this Agreement, and in respect of the transactions contemplated
hereby, and hereby waive, and agree not to assert, as a defense in any action,
suit or proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit or proceeding
may not be brought or is not maintainable in said courts or that the venue
thereof may not be appropriate or that this Agreement or any such document may
not be enforced in or by such courts, and the parties hereto irrevocably agree
that all claims with respect to such action or proceeding shall be heard and
determined in such a Delaware state or federal court. The parties hereby consent
to and grant any such court jurisdiction over the person of such parties and
over the subject matter of such dispute and agree that mailing of process or
other papers in connection with any such action or proceeding in the manner
provided in Section 6(e) hereof or in such other manner as may be permitted by
applicable law, shall be valid and sufficient service thereof.
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(i) Other Remedies; Specific Performance.
(i) Other Remedies. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached.
(ii) Specific Performance. It is accordingly agreed
that the parties shall be entitled to seek an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
(j) Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ACTIONS OF MOMENTUM MERGER CORPORATION, NPS AND ENZON IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
(k) Counterparts. This Agreement may be executed in any
number of counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
(l) Further Assurances. At the request of any party to another
party or parties to this Agreement, such other party or parties shall execute
and deliver such instruments or documents to evidence or further effectuate (but
not to enlarge) the respective rights and obligations of the parties and to
evidence and effectuate any termination of this Agreement.
(m) Public Disclosure. Stockholder shall not issue any
statement or communication to any third party regarding the subject matter of
the Reorganization Agreement or the transactions contemplated thereby,
including, if applicable, the termination of the Reorganization Agreement and
the reasons therefor, without the prior written consent of Enzon.
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(n) Confidentiality. Stockholder hereby agrees that all
Information (as defined below) shall be governed by the terms of the Mutual
Nondisclosure Agreement dated as of December 18, 2002 (the "NDA"), between Enzon
and NPS, and Stockholder agrees to be bound by the terms of the NDA and to keep
all Information confidential in accordance with the terms of the NDA. In this
regard, Stockholder acknowledges that Enzon and NPS Common Stock are publicly
traded and that any Information obtained during the course of its due diligence
could be considered to be material non-public information within the meaning of
federal and state securities laws. Accordingly, Stockholder acknowledges and
agrees not to engage in any transactions in the Common Stock of Enzon and NPS in
violation of applicable xxxxxxx xxxxxxx laws. For purposes of this Agreement,
"Information" shall include: Enzon's and NPS's confidential, business, financial
and technical information; the fact that Information has been made available to
any Person in connection with the transactions contemplated by the
Reorganization Agreement and the any related agreements (irrespective of whether
such transactions are consummated); the fact that Enzon and NPS have had
discussions concerning the transactions contemplated by the Reorganization
Agreement and any related agreements (irrespective of whether such transactions
are consummated); the existence, terms and conditions of the NDA, the
Reorganization Agreement and any related agreements; and any other fact with
respect to the transactions contemplated by the Reorganization Agreement and any
related agreements (irrespective of whether such transactions are consummated).
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed, or caused this
Agreement to be executed by a duly authorized officer, as of the date first
written above.
ENZON PHARMACEUTICALS, INC.
By:
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Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
STOCKHOLDER:
Signature:
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Name:
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Address:
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Facsimile No.
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Shares beneficially owned:
_______________ NPS common shares
_______________ NPS common shares issuable upon
exercise of outstanding options or warrants
ACKNOWLEDGED AND AGREED TO (with respect to Section 8):
NPS PHARMACEUTICALS, INC.
By:
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Name:
Title:
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned Stockholder (the "Stockholder") of NPS Pharmaceuticals,
Inc., a Delaware corporation ("NPS"), hereby irrevocably (to the fullest extent
permitted by law) appoints each of Xxxxxx X. Xxxxxxx, Xxxxxxx Xxxxxxxx and Xxxxx
Xxxxxx of Enzon (as defined below), as the sole and exclusive attorneys and
proxies of the undersigned, with full power of substitution and resubstitution,
to vote and exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock of NPS that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of NPS issued or
issuable in respect thereof on or after the date hereof (collectively, the
"Shares"), in accordance with the terms of this Proxy. The Shares beneficially
owned by Stockholder as of the date of this Proxy are listed on the final page
of this Proxy, along with the number(s) of the stock certificate(s) which
represent such Shares. Upon Stockholder's execution of this Proxy, any and all
prior proxies given by the undersigned with respect to any Shares are hereby
revoked and Stockholder agrees not to grant any subsequent proxies with respect
to the Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith (the "Voting Agreement") by and among Enzon
Pharmaceuticals, Inc., a Delaware corporation ("Enzon") and the undersigned
Stockholder of NPS, and is granted in consideration of Enzon and Momentum Merger
Corporation, a Delaware corporation ("Momentum") entering into that certain
Agreement and Plan of Reorganization of even date herewith (as it may hereafter
be amended from time to time in accordance with the provisions thereof, the
"Reorganization Agreement") by and among NPS, Enzon, Momentum, Xxxxxx
Acquisition Corporation, a Delaware corporation ("Xxxxxx Merger Sub"), and
Einstein Acquisition Corporation, a Delaware corporation ("Einstein Merger
Sub"). The Reorganization Agreement provides for the merger of Xxxxxx Merger Sub
with and into NPS (the "NPS Merger") and the merger of Enzon with and into
Einstein Merger Sub (the "Enzon Merger" and together with the NPS Merger, the
"Mergers"), and Stockholder is receiving a portion of the consideration payable
in connection with the NPS Merger. As used in this Proxy, the term "Expiration
Date" shall mean the earlier to occur of (i) such date and time as the
Reorganization Agreement shall have been validly terminated pursuant to its
terms, or (ii) such date and time as the Mergers shall become effective in
accordance with the terms and conditions set forth in the Reorganization
Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by Stockholder, at any time prior to the Expiration
Date, to act as Stockholder's attorney and proxy to vote all of the Shares, and
to exercise all voting, consent and similar rights of the undersigned with
respect to all of the Shares (including, without limitation, the power to
execute and deliver written consents) at every annual or special meeting of
stockholders of NPS (and at every adjournment or postponement thereof), and in
every written consent in lieu of such meeting:
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(a) in favor of the approval and adoption of the
Reorganization Agreement and approval of the NPS Merger;
(b) against the approval of any proposal that would result in
a breach by NPS of the Reorganization Agreement; and
(c) against any proposal made in opposition to, or in
competition with, consummation of the Mergers (or either of them) and
the other transactions contemplated by the Reorganization Agreement,
including any Acquisition Proposal.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided in clauses (a), (b) and (c) above.
Stockholder may vote the Shares on all other matters. Notwithstanding anything
in this Proxy to the contrary, if Stockholder is a director or officer of NPS,
nothing contained in this Proxy shall prohibit such director or officer from
acting in his/her capacity as such or from taking such action as a director or
officer of NPS that may be required on the part of such person as a director or
officer of NPS, including acting in compliance with the Reorganization
Agreement.
Any obligation of Stockholder hereunder shall be binding upon the
successors and assigns of Stockholder.
This Proxy shall terminate and be of no further force and effect,
automatically upon the Expiration Date.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF Stockholder has caused this Irrevocable Proxy
Agreement to be duly executed as of the day and year first above written.
STOCKHOLDER:
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Name:
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Title:
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Address:
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Facsimile No.
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Shares beneficially owned:
_______________ NPS common shares
_______________ NPS common shares issuable upon
exercise of outstanding options or warrants
