EXHIBIT 9.2
AGREEMENT AND WAIVER OF CO-SALE RIGHTS
This AGREEMENT AND WAIVER ("Waiver") is entered into as of the 16th day
of July 2001, by and among ZymoGenetics, Inc., a Washington corporation (the
"Company"), the holders of Series B Preferred Stock of the Company whose
signatures appear below (collectively, the "Holders", and individually, a
"Holder") and Serono B.V., a Dutch corporation whose principal place of business
is Xxxxxxxxxxxxxxx 0-0, 0000 XX, Xxx Xxxx, Xxx Xxxxxxxxxxx ("Serono").
W I T N E S S E T H
WHEREAS, the Holders and the Company are parties to the Series B
Co-Sale Agreement dated as of November 10, 2000 (the "Co-Sale Agreement");
WHEREAS, Silver Tide Holding S.A. ("Silver Tide") is a Holder and
desires to transfer 398,502 shares of Series B Stock (which constitutes all of
the shares of Series B Stock owned by it) to Serono, at a price per share (in
cash) of $ 37.39 (United states dollars thirty-seven and thirty-nine cents),
subject only to the execution and delivery of this Waiver by the Company and the
requisite Holders (the "Proposed Transfer");
WHEREAS, Serono is within the definition of "Strategic Investor" under
the Co-Sale Agreement; and
WHEREAS, pursuant to Section 7 of the Co-Sale Agreement, the observance
of any term of the Co-Sale Agreement may be waived only with the written consent
of the Company and the Holders of more than 50% of the then outstanding shares
of Series B Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
promises set forth in this Agreement, the parties agree as follows:
1. Definitions
Capitalized terms used in this Waiver and not defined herein shall have
the same meanings as set forth in the Series B Preferred Stock Purchase
Agreement dated as of October 20, 2000 (the "Purchase Agreement") and the
Co-Sale Agreement.
2. Waiver of Co- Sale Rights
2.1 Each Holder hereby waives its co-sale rights under Section 2 of
the Co-Sale Agreement in respect of the Proposed Transfer, with such waiver to
become effective only upon the execution and delivery of this Waiver by (i) the
Holders of more than 50% of the then outstanding shares of Series B Stock, (ii)
the Company, (iii) Silver Tide and (iv) Serono.
2.2 The Company hereby acknowledges and confirms that such waiver
shall become effective upon the execution and delivery of this Waiver by (i) the
Holders of more than 50% of the then outstanding shares of Series B Stock, (ii)
Silver Tide and (iii) Serono.
2.3 The Company shall notify Silver Tide promptly upon effectiveness
of the foregoing waiver, and Silver Tide will consummate the Proposed Transfer
within 10 days thereafter.
3. Confirmation of Certain Agreements
3.1 Upon consummation of the Proposed Transfer, Serono, as Silver
Tide's Assignee thereunder, shall be bound by the terms and subject to the
conditions of the Shareholders' Agreement, the Investors' Rights Agreement and
the Co-Sale Agreement and shall be entitled to any and all rights of Holders
thereunder. Serono agrees to execute and return to Company the Shareholders'
Agreement Endorsement attached hereto as Exhibit A.
3.2 Upon consummation of the Proposed Transfer, Serono shall, as
Silver Tide's assignee thereunder, be bound by the terms and subject to the
conditions of the Voting Agreement, dated as of October 20, 2000, between
Warburg, Xxxxxx Equity Partners, L.P. and Silver Tide (the "Voting Agreement").
3.3 Serono hereby makes all representations and warranties of the
Investors contained in Section 3 of the Purchase Agreement.
3.4 Serono hereby acknowledges receipt of a copy of the Purchase
Agreement, the Shareholders' Agreement, the Investors' Rights Agreement, the Co-
Sale Agreement and the Voting Agreement.
-2-
3.5 Serono hereby acknowledges that it has received all of the
information it considers necessary or appropriate for deciding whether to
purchase shares of Series B Stock. Serono further represents that its decision
to purchase shares of Series B Stock is based on independent due diligence
performed by Serono or on its behalf.
4. Further Instruments and Actions
The parties agree to execute such further instruments and to take such
further action as may reasonably be necessary to carry out the intent of this
Waiver.
5. Confidentiality
Each Holder party to this Agreement and Company agree to keep
confidential (a) the terms and the existence of this Agreement and (b)
any information concerning the Proposed Transfer (the "Transfer
Information"). Notwithstanding the foregoing, each Holder party to this
Agreement and Company may disclose Transfer Information: (a) to a
court, administrative agency or other governmental body if disclosure
is requested or required by law, (b) to its directors, officers,
employees, consultants, attorneys or accountants, or (c) with the
written consent of Serono B.V.. This Section 5 shall not apply if
Transfer Information is in the public domain at the time of disclosure.
6. Governing Law; Jurisdiction; Venue
This Waiver shall be governed by and construed under the laws of the
State of Washington without regard to principles of conflict of laws. The
parties irrevocably consent to the jurisdiction and venue of the state and
federal courts located in King County, Washington in connection with any action
relating to this Agreement.
7. Counterparts
This Waiver may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
-3-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SERONO B.V.
By: /s/ Xxxx-Xxxxxx Verhassel
----------------------------
Name: Xxxx-Xxxxxx Verhassel
-------------------------
Title:_________________________
By: /s/ Xxxx Xxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxx
--------------------------
Title: Auth'd Signatory
------------------------
ZYMOGENETICS, INC.
By: /s/ Xxxxx X.X. Xxxxxx
----------------------------
Xxxxx X.X. Xxxxxx
Its President and CEO
HOLDERS:
-------
MOUNT EVEREST ADVISORS, LLC
By:____________________________________
Xxxxxxx X. Xxxxxx, President
-4-
APAX EXCELSIOR VI, L.P.
By: Apax Excelsior VI Partners, L.P.
Its General Partner
By: Patricof & Co. Managers, Inc.
Its General Partner
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx, PhD
Title: General Partner
APAX EXCELSIOR VI-A, C.V.
By: Apax Excelsior VI Partners, L.P.
Its General Partner
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx, PhD
Title: General Partner
APAX EXCELSIOR VI-B, C.V.
By: Apax Excelsior VI Partners, L.P.
Its General Partner
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx, PhD
Title: General Partner
APAX FUNDS LIMITED E4 ACCOUNT
By: Apax Excelsior VI Partners, L.P.
Its General Partner
By:_________________________________
Name:_______________________________
Title:______________________________
-5-
XXXXXXX AFFILIATES III, L.P.
By: FHM III, L.L.C.
Its General Partner
By:___________________________________
Name: Xxxxx Xxxxx
Title: Managing Member
PATRICOF PRIVATE INVESTMENT CLUB III, L.P.
By: Apax Excelsior VI Partners, L.P.
Its General Partner
By: Patricof & Co. Managers, Inc.
Its General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx, PhD
Title: Vice President
VERTICAL FUND ASSOCIATES, L.P.
By: Vertical Group, L.P.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: General Partner
-6-
NOVO A/S
By: /s/ Xxxx X. Xxxxxxx, 2001-08-06
------------------------------
Name: Xxxx Xxxxx Xxxxxxx
Title: Co-CEO
SILVER TIDE HOLDING S.A.
By: /s/ C. Xxxxxxx Xxxxx
------------------------------
Name: C. Xxxxxxx Xxxxx Xxxxxxx
----------------------------
Title: Attorney
---------------------------
/s/ Xxxxxx Xxxxxxxx
--------------------------------------
Xx. Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxx
--------------------------------------
Xx. Xxxxx Xxxxx
/s/ Xxxxxx Xxxxxx
--------------------------------------
Xx. Xxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Xx. Xxxxxx Xxxxxxx
-7-
WARBURG, XXXXXX EQUITY PARTNERS, L.P.
By: Warburg, Xxxxxx & Co.
Its General Partner and Nominee
By: /s/ Xxxxxxxx Xxxx
--------------------------------
Xxxxxxxx Xxxx, Partner
WARBURG, XXXXXX NETHERLANDS EQUITY
PARTNERS I, C.V.
By: Warburg, Xxxxxx & Co.
Its General Partner and Nominee
By: /s/ Xxxxxxxx Xxxx
--------------------------------
Xxxxxxxx Xxxx, Partner
-8-
WARBURG, XXXXXX NETHERLANDS EQUITY
PARTNERS II, C.V.
By: Warburg, Xxxxxx & Co.
Its General Partner and Nominee
By: /s/ Xxxxxxxx Xxxx
--------------------------------
Xxxxxxxx Xxxx, Partner
WARBURG, XXXXXX NETHERLANDS EQUITY
PARTNERS III, C.V.
By: Warburg, Xxxxxx & Co.
Its General Partner and Nominee
By: /s/ Xxxxxxxx Xxxx
--------------------------------
Xxxxxxxx Xxxx, Partner
-9-
Exhibit A
---------
ZYMOGENETICS, INC.
SHAREHOLDERS' AGREEMENT
ENDORSEMENT
The undersigned, a Shareholder of ZymoGenetics, Inc. (the "Company"),
hereby agrees to the terms and conditions of the Shareholders' Agreement dated
as of November 10, 2000 originally entered into by and among the Company and the
other parties listed on the signature pages thereto and acknowledge receipt of a
copy of such Shareholders' Agreement and agrees to be bound thereunder.
SERONO B.V.
By: /s/ Xxxx-Xxxxxx Verhassel
-------------------------------
Name: Xxxx-Xxxxxx Verhassel
----------------------------
By: /s/ Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
Address: Xxxxxxxxxxxxxxx 0-0
0000 XX, Xxx Xxxx
The Neterlands
Fax:______________________________
Telephone:________________________
By: /s/ Xxxx Xxxxxxx
-------------------------------
[Name]
Address: 0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Fax: 000-000-0000
-------------
Telephone: 000-000-0000
------------
-10-
By: Novo A/S /s/ Xxxx X. Xxxxxxx
----------------------------------
[Name]
Address: Novo A/S
Krogshojvej
D-K 2880 Bagsvaerd
Fax: x00 0000 0000
--------------
Telephone: x00 0000 0000
--------------
By: /s/ Xxxxxx Xxxxxx
-------------------------
[Name]
Address: NYU Medical Center, Dept Cell
Biology
000 Xxxxx Xxxxxx
XX, XX 00000, XXX
Fax: 000-000-0000
-------------
Telephone: 000-000-0000
-------------
-11-
