EXHIBIT NO. 99.1
VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of
December 5, 2001, between Millennium Pharmaceuticals, Inc., a Delaware
corporation ("MILLENNIUM"), and the undersigned stockholder ("STOCKHOLDER") of
COR Therapeutics, Inc., a Delaware corporation ("COR").
RECITALS
A. Concurrently with the execution of this Agreement, Millennium, COR and
PGM Corporation, a Delaware corporation and a wholly owned subsidiary of
Millennium ("ACQUISITION SUB"), have entered into an Agreement and Plan of
Merger (the "MERGER AGREEMENT") which provides for the merger (the "MERGER") of
Acquisition Sub with and into COR. Pursuant to the Merger, shares of capital
stock of COR will be converted into the right to receive shares of common stock,
par value $.001 per share, of Millennium on the basis described in the Merger
Agreement.
B. Stockholder is the record holder and beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT") of such number of shares of the outstanding common stock, par value
$.0001 per share, of COR as is indicated on the final page of this Agreement
(the "SHARES").
C. Millennium desires Stockholder to agree, and Stockholder is willing to
agree, not to transfer or otherwise dispose of any of the Shares, or any other
shares of capital stock of COR acquired by Stockholder hereafter and prior to
the Expiration Date (as defined in Section 1.1 below), except as otherwise
permitted hereby), and to vote the Shares and any other such shares of capital
stock of COR acquired by Stockholder so as to facilitate consummation of the
Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. AGREEMENT TO RETAIN SHARES.
1.1 TRANSFER AND ENCUMBRANCE. Stockholder agrees not to transfer
(except as may be specifically required by court order), sell, exchange, pledge
or otherwise dispose of or encumber any of the Shares or any New Shares (as
defined in Section 1.2, below), or to make any offer or agreement relating
thereto, at any time prior to the Expiration Date; provided, however, that
nothing in this Agreement shall restrict Stockholder from (a) exercising any
options to acquire shares of common stock of COR, or (b) effecting any transfer
of Shares or New Shares (i) by will or applicable laws of descent and
distribution or (ii) to any member of the immediate family of Stockholder, or to
any trust the beneficial ownership of which is held by Stockholder or any such
family member (each a "Permitted Transferee"), so long as such Permitted
Transferee agrees in writing, in form and substance reasonably satisfactory to
Millennium, to be bound by the terms of this Agreement to the same extent as
Stockholder is bound. As used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) such date and time as the Merger shall become effective
in accordance with the terms and provisions of the Merger Agreement (provided
that if Stockholder is a signatory to COR's Affiliate Agreement, nothing
contained herein shall release such Stockholder
from any of its obligations set forth under such Affiliate Agreement) and (ii)
such date and time as the Merger Agreement shall be terminated pursuant to
Article VIII thereof.
1.2 ADDITIONAL PURCHASES. Stockholder agrees that any shares of
capital stock of COR that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the execution of this
Agreement and prior to the Expiration Date ("NEW SHARES") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. AGREEMENT TO VOTE SHARES. At every meeting of stockholders of COR called
with respect to the Merger Agreement and/or the Merger, and at every adjournment
thereof, and on every action or approval by written consent of stockholders of
COR with respect to the Merger Agreement and/or the Merger, Stockholder shall
vote the Shares and any New Shares outstanding as of the relevant record date or
the date of the written consent in favor of adoption of the Merger Agreement and
approval of the Merger (the "COR VOTING PROPOSAL").
3. IRREVOCABLE PROXY. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to Millennium a proxy in the form attached hereto
as EXHIBIT A (the "PROXY"), which shall be irrevocable to the extent provided
therein, with the total number of shares of outstanding capital stock of COR
beneficially owned by Stockholder and subject to the Proxy set forth therein.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER. Stockholder
hereby represents, warrants and covenants to Millennium as follows:
4.1 OWNERSHIP OF SHARES. Stockholder (i) is the beneficial owner of
the Shares, which at the date hereof and at all times up until the Expiration
Date will be free and clear of any liens, claims, options, charges or other
encumbrances; (ii) does not beneficially own any shares of capital stock of
COR other than the Shares, and shares of capital stock of COR (A) underlying
options which are currently exercisable or will become exercisable at any
time within 60 days from the date hereof, as indicated on the final page of
this Agreement or (B) constituting matching contributions under COR's 401(k)
Plan; and (iii) has full power and authority to make, enter into and carry
out the terms of this Agreement and the Proxy.
4.2 NO PROXY SOLICITATIONS. Stockholder, in his or her capacity as a
stockholder of COR, will not, and will not permit any entity under stockholder's
control to: (i) solicit proxies with respect to an approval of any proposal made
in opposition to or competition with the COR Voting Proposal or consummation of
the Merger or any merger, consolidation, sale of substantial assets,
reorganization or recapitalization, with any party other than with Millennium
and its affiliates or any other liquidation or winding up of COR (each of the
foregoing is hereinafter referred to as an "OPPOSING PROPOSAL"); (ii) initiate a
stockholders' vote or action by consent of COR stockholders with respect to an
Opposing Proposal; or (iii) become a member of a "group" (as such term is used
in Section 13(d) of the Exchange Act) with respect to any voting securities of
COR with respect to an Opposing Proposal.
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5. ADDITIONAL DOCUMENTS. Stockholder hereby covenants and agrees to execute
and deliver any additional documents reasonably required by Millennium to carry
out the intent of this Agreement.
6. NO OWNERSHIP INTEREST. Nothing contained in this Agreement shall be
deemed to vest in Millennium any direct or indirect ownership or incidents of
ownership of or with respect to any of the Shares or New Shares, except as
otherwise expressly provided herein. All rights, ownership and economic benefits
of and relating to the Shares and New Shares shall remain with, and belong to,
Stockholder, and this Agreement shall not be deemed to authorize Millennium to
manage, direct, superintend, restrict, regulate, govern or administer any of the
policies or operations of COR or to direct Stockholder in the voting of any of
the Shares or New Shares, except as otherwise expressly provided herein.
7. TERMINATION. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
8. MISCELLANEOUS.
8.1 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
8.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other.
8.3 AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
8.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Millennium will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreement of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Millennium upon any such violation,
Millennium shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
Millennium at law or in equity.
8.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telecopy, or sent by mail (registered or certified
mail, postage prepaid, return receipt requested) or overnight courier (prepaid)
to the respective parties as follows:
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If to Millennium: Millennium Pharmaceuticals, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
With a copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to Stockholder: To the address for notice set forth on the last page hereof.
with a copy to: Cooley Godward LLP
0 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith. Notices shall only be effective upon receipt.
8.6 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware without
giving effect to the conflict of laws provision thereof.
8.7 ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter.
8.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
8.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction of interpretation of this
Agreement.
8.10 FIDUCIARY DUTY AS DIRECTOR OR OFFICER. The parties hereto
acknowledge and agree that Stockholder's obligations hereunder are solely in his
or her capacity as a stockholder of COR, and that none of the provisions herein
set forth shall be deemed to restrict or limit any fiduciary duty the
undersigned or any of his or her respective affiliates may have as a member of
the Board of Directors of COR or as an executive officer of COR; provided that
no such duty shall excuse Stockholder from his or her obligations as a
stockholder of COR to vote Shares or New Shares as herein provided and to
otherwise comply with the terms and conditions of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
MILLENNIUM PHARMACEUTICALS, INC.
By:
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Name:
Title:
STOCKHOLDER:
By:
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Print
Name:
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Stockholder's Address for Notice:
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Shares beneficially owned:
________ shares of outstanding Common Stock
________ shares of Common Stock underlying
options which are currently exercisable or
will become exercisable at any time within
60 days from the date hereof
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of COR Therapeutics, Inc., a Delaware
corporation ("COR"), hereby irrevocably appoints Xxxx X. Xxxxx, Xxxxx X. Xxxxx
and Xxxx X. Xxxxxxx III of Millennium Pharmaceuticals, Inc., a Delaware
corporation ("MILLENNIUM"), and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
the shares of outstanding capital stock of COR beneficially owned by the
undersigned, which shares are listed on the final page of this Proxy (the
"SHARES"), and any and all other shares or securities issued or issuable in
respect thereof on or after the date hereof, until such time as that certain
Agreement and Plan of Merger dated as of December 5, 2001 (the "MERGER
AGREEMENT"), among Millennium, PGM Corporation, a Delaware corporation and a
wholly owned subsidiary of Millennium ("ACQUISITION SUB"), and COR, shall be
terminated in accordance with its terms or the Merger (as defined in the Merger
Agreement) is effective, whichever first occurs. Upon the execution hereof, all
prior proxies given by the undersigned with respect to the Shares and any and
all other shares or securities issued or issuable in respect thereof on or after
the date hereof are hereby revoked and no subsequent proxies will be given.
This proxy is coupled with an interest and is irrevocable, is granted in
order to secure the obligations under the Voting Agreement dated as of
December 5, 2001 between Millennium and the undersigned stockholder (the
"VOTING AGREEMENT"), and is granted in consideration of Millennium entering
into the Merger Agreement. The attorneys and proxies named above will be
empowered at any time prior to termination of the Merger Agreement to
exercise all voting and other rights (including, without limitation, the
power to execute and deliver written consents with respect to the Shares) of
the undersigned at every annual, special or adjourned meeting of COR
stockholders, and in every written consent in lieu of such a meeting, in
favor of adoption of the Merger Agreement and approval of the Merger (the
"COR VOTING PROPOSAL") and against any proposal made in opposition to or
competition with the COR Voting Proposal or consummation of the Merger or any
merger, consolidation, sale of substantial assets, reorganization or
recapitalization, with any party other than with Millennium and its
affiliates or any other liquidation or winding up of COR (each of the
foregoing is hereinafter referred to as an "OPPOSING PROPOSAL").
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto at any time prior to termination of the Merger
Agreement at every annual, special or adjourned meeting of stockholders of COR
and in every written consent in lieu of such meeting, in favor of the COR Voting
Proposal and against any Opposing Proposal, and may not exercise this proxy on
any other matter. The undersigned stockholder may vote the Shares on all other
matters.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: December 5, 2001
Signature of Stockholder:
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Print Name of Stockholder:
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Shares beneficially owned:
shares of outstanding Common Stock
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