FORM OF VOTING AGREEMENT
EXHIBIT
10.1
THIS
VOTING AGREEMENT (this “Agreement”)
is
made and entered into as of October 30, 2006 by and between Merck & Co.,
Inc., a New Jersey corporation (“Acquiror”),
and
the undersigned securityholder (“Stockholder”)
of
Sirna
Therapeutics, Inc.,
a
Delaware corporation (“Sirna”).
RECITALS:
A. Acquiror,
Sirna and Merger Sub (as defined below) are concurrently entering into an
Agreement and Plan of Merger (the “Merger
Agreement”),
which
provides for the merger (the “Merger”)
of
Spinnaker Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Acquiror (“Merger
Sub”),
with
and into Sirna, pursuant to which all outstanding capital stock of Sirna will
be
converted into the right to receive the consideration set forth in the Merger
Agreement.
B. Stockholder
is the 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 capital stock of Sirna, and such number
of shares of capital stock of Sirna issuable upon the exercise of outstanding
options and warrants, as set forth on the signature page hereof.
C. As
an
inducement and a condition to entering into the Merger Agreement by Acquiror,
Acquiror has requested that Stockholder agree, and Stockholder has agreed (in
Stockholder’s capacity as such,
and not
in any other capacity, including as a director or officer of Sirna, as
applicable),
to
enter into this Agreement in order to facilitate the consummation of the
Merger.
NOW,
THEREFORE,
intending to be legally bound, the parties hereto agree as follows:
1. Definitions.
For the purposes of this Agreement, capitalized terms that are used but not
defined herein shall have the respective meanings ascribed thereto in the Merger
Agreement.
(a) “Expiration
Date”
shall
mean the earliest to occur of (i) the date and time as the Merger Agreement
shall have been validly terminated according to its terms and (ii) the date
and time as the Merger shall become effective in accordance with the terms
and
conditions set forth in the Merger Agreement.
(b) “Person”
shall
mean any individual, corporation, partnership, limited liability company, joint
venture, association, trust, unincorporated organization or other
entity.
(c) “Shares”
shall
mean: (i) all securities of Sirna (including all shares of capital stock of
Sirna and all options, warrants and other rights to acquire shares of capital
stock of Sirna) owned by Stockholder as of the date of this Agreement, and
(ii) all additional securities of Sirna (including all additional shares of
capital stock of Sirna and all additional options, warrants and other rights
to
acquire shares of capital stock of Sirna) which Stockholder acquires beneficial
ownership
during
the period commencing with the execution and delivery of this Agreement until
the Expiration Date.
(d) “Transfer” shall
mean, with respect to any security, the direct or indirect assignment, sale,
transfer, tender, pledge, hypothecation, or the gift, placement in trust, or
other disposition of such security (excluding transfers by testamentary or
intestate succession or otherwise by operation of law) or any right, title
or
interest therein (including, but not limited to, any right or power to vote
to
which the holder thereof may be entitled, whether such right or power is granted
by proxy or otherwise), or the record or beneficial ownership thereof, the
offer
to make such a sale, transfer, or other disposition, and each agreement,
arrangement or understanding, whether or not in writing, to effect any of the
foregoing; provided,
however,
the
exercise of any Warrant shall not be deemed to constitute the Transfer of such
Warrant or the underlying Shares.
2. Restriction
on Transfer, Proxies and Non-Interference.
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, (A) cause or permit the Transfer of any of the
Shares to be effected or enter into any contract, option or other agreement
with
respect to, or consent to, a Transfer of, any of the Shares or Stockholder’s
voting or economic interest therein, (B) 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, (C) request that Sirna
register the Transfer in contravention of this Agreement of any certificate
or
uncertificated interest representing any of the Shares or (D) permit any such
Shares to be, or become subject to, any pledges, liens, preemptive rights,
security interests, claims, charges or other encumbrances or arrangements (each,
an “Encumbrance”).
3. Agreement
to Vote Shares.
During
the period commencing on the date hereof and continuing until the Expiration
Date, at every meeting of stockholders of Sirna called with respect to any
of
the following, and at every adjournment or postponement thereof, and on every
action or approval by written consent of stockholders of Sirna with respect
to
any of the following, Stockholder shall vote, to the extent not voted by the
Person(s) appointed as proxies under Section 4, or shall cause the record
holder of any Shares on the applicable record date to appear (in Person or
by
proxy) and vote the Shares entitled to vote thereon:
(a) in
favor
of adoption and approval of the Merger Agreement and the Merger contemplated
thereby, including each other action, agreement and transaction contemplated
by
or in furtherance of the Merger Agreement, the Merger and this
Agreement;
(b) against
approval of any proposal made in opposition to, or in competition with,
consummation of the Merger and the transactions contemplated by the Merger
Agreement;
(c) except
as
otherwise agreed to in writing in advance by Acquiror, against any other action,
proposal, transaction or agreement that would compete with or serve to interfere
with, delay, discourage, adversely affect or inhibit the timely consummation
of
the Merger; and
(d) against
any Acquisition Proposal (other than the Acquisition Proposal contemplated
by
the Merger Agreement).
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4. Irrevocable
Proxy.
Stockholder hereby irrevocably and unconditionally revokes any and all previous
proxies granted with respect to the Shares. By entering into this Agreement,
Stockholder hereby irrevocably and unconditionally grants a proxy appointing
Xxxxxxx Xxxxxx and Xxxx Xxxxxxxx of Acquiror as such Stockholder’s
attorneys-in-fact and proxies, with full power of substitution, for and in
such
Stockholder’s name, to vote, express, consent or dissent, or otherwise to
utilize such voting power solely as specifically set forth in Section 3 as
to
the matters specified in Section 3. The proxy granted by Stockholder pursuant
to
this Section 4 is coupled with an interest and is irrevocable and is granted
in
consideration of Acquiror entering into this Agreement and incurring certain
related fees and expenses. Notwithstanding the foregoing, the proxy granted
by
Stockholder shall be revoked upon termination of this Agreement in accordance
with its terms. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with Section 212(e) of the General Corporation Law
of
the State of Delaware (the “DGCL”).
Acquiror covenants and agrees that Xxxxxxx Xxxxxx and Xxxx Xxxxxxxx of Acquiror
shall attend any stockholder meeting called with respect to the matters in
Section 3 either in person or by proxy, and shall vote all the Shares as
contemplated by Section 3 at any such meeting, including any adjournment or
postponement thereof.
5. No
Solicitations.
From
the date hereof until the Expiration Date, Stockholder agrees neither
Stockholder nor any of its Affiliates (it being agreed that the Company and
its
Subsidiaries shall not be considered Affiliates of Stockholder for purposes
of
this Section 5), officers or directors shall, and Stockholder shall not permit
the employees, agents or representatives, including any investment banker,
attorney, consultant or accountant of the Stockholder or any of its Affiliates
on its behalf to, take any action prohibited by Section 7.2 or Section 7.3
of
the Merger Agreement (assuming, for purposes of this Section 5, that Stockholder
is a “Representative” of the Company as defined in the Merger
Agreement).
6. Alternative
Transaction Payment.
(a) If
(i)
the Merger Agreement shall have been terminated (A) by Sirna pursuant to Section
9.3(a) thereof or Acquiror pursuant to Section 9.4(a) or (b) thereof or (B)
by
Sirna or Acquiror pursuant to Section 9.2(a) or 9.2(b) thereof, and, in either
case, a proposal for an Alternative Transaction shall have been made public
and
not been withdrawn prior to the time of the Stockholders’ Meeting (or at any
adjournment thereof) and (ii) Sirna enters into a definitive agreement with
respect to an Alternative Transaction within twelve (12) months after the
termination of the Merger Agreement or an Alternative Transaction is consummated
within twelve (12) months after the date of such termination, then Stockholder
shall pay to Acquiror, within two business days after receipt, an amount equal
to 50% of the Profit (as defined in Section 6(d) below), if any, (x) received
by
Stockholder or (y) that would have received by Stockholder as a result of Shares
held by Stockholder on the date hereof in connection with consummation of such
Alternative Transaction. Any payment to Acquiror hereunder shall be made in
the
same form as the consideration received from such transaction (and, if the
consideration so received was in more than one form, then in the same proportion
as the forms of consideration so received).
(b) If
Acquiror shall have increased the Merger Consideration to an amount per share
greater than $13.00 and the Merger shall have been consummated, then each
Stockholder shall pay to Acquiror, within two business days after receipt,
an
amount equal to 50% of the Profit received by
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such
Stockholder in connection with consummation of the Merger. Any payment to
Acquiror hereunder shall be made in the same form as the consideration received
from the Merger (and, if the consideration so received was in more than one
form, then in the same proportion as the forms of consideration so
received).
(c) Any
payment to be made hereunder on account of Profit (i) received in cash, shall
be
paid by wire transfer of same day funds to an account designated by Acquiror
and
(ii) received in the form of securities or other property, shall be paid through
delivery to Acquiror of the securities or property, suitably endorsed for
transfer free and clear of all liens, charges, encumbrances, voting agreements,
and commitments of every kind (other than those imposed by, through or under
the
Alternative Transaction or as required by law).
(d) (i) For
purposes
of this Section 6, “Profit” of a Stockholder in connection with the consummation
of an Alternative Transaction (or, in the case of Section 6(b) above, the
Merger) shall equal the aggregate consideration that such Stockholder received
or would have received as a result of the Shares held by such Stockholder on
the
date hereof, directly or indirectly, as a result of such consummation, valuing
any non-cash consideration (including any residual interest in Sirna or any
successor whether represented by shares of Sirna Common Stock or other
securities of Sirna or any successor to the extent that Sirna has engaged in
a
spin-off, recapitalization or similar transaction) at its fair market value
as
of the date of consummation less the amount of the aggregate consideration
Stockholder received or would have received as a result of consummation of
the
Merger (assuming Merger Consideration equal to $13.00 in cash). Stockholder
expressly agrees that Stockholder’s obligations to Acquiror under this Section 6
are personal obligations of Stockholder and that Stockholder’s obligation to pay
Profit to Parent under this Section 6 shall not be affected as a result of
any
Transfer of the Shares following the Expiration Date. Stockholder waives any
right to any cross-claim against a future holder of the Shares in response
to a
claim by Parent for Profit pursuant to this Section 6.
(ii) The
fair
market value of any non-cash consideration consisting of (A) securities listed
on a national securities exchange or traded on the Nasdaq National Market of
The
Nasdaq Stock Market, Inc. (“Nasdaq
National Market”)
shall
be equal to the average of the closing price per share of such security as
reported on such exchange or Nasdaq National Market for each of the five (5)
trading days prior to the date of determination, provided that such securities
are not subject by law or agreement with Acquiror to any transfer restrictions
and such securities do not represent in the aggregate 10% or more of the
outstanding securities of the same class of securities of which such securities
are a part; and (B) consideration which is other than cash or securities of
the
type specified in subclause (A) above shall be the amount a reasonable, willing
seller would pay a reasonable, willing buyer, taking into account the nature
and
terms of such property. In the event of a dispute as to the fair market value
of
such property, such disputed amounts shall be determined, which determination
shall be binding on all parties to this Agreement and shall be made by a
nationally recognized independent banking firm mutually agreed upon by the
parties, within ten (10) business days of the event requiring selection of
such
investment banking firm; provided,
however,
that if
Acquiror and the Stockholder are unable to agree within two (2) business days
after the date of such event as to the investment banking firm, then Acquiror,
on the one hand, and the Stockholder, on the other hand, shall each select
one
firm, and those firms shall select a third investment banking firm, which third
firm shall make a determination; provided further,
that
the fees
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and
expenses of such investment banking firm shall be borne by the Stockholder.
The
determination of the investment banking firm shall be binding upon the parties
hereto.
(iii) In
the
event that Sirna shall declare and pay a stock or extraordinary dividend or
other distribution, or effect a stock split, reverse stock split,
reclassification, reorganization, recapitalization, combination or other like
changes with respect to the shares of Sirna Common Stock, the calculations
set
forth in this Section 6 shall be adjusted to reflect fully such dividend,
distribution, stock split, reverse stock split, reclassification,
reorganization, recapitalization or combination (including any residual interest
in Sirna or any successor whether represented by the shares of Sirna Common
Stock or other securities of Sirna or any successor to the extent that Sirna
has
engaged in a spin-off, recapitalization or similar transaction) and shall be
considered in determining the Profit as provided in this Section 6.
7. Representations
and Warranties and Agreements of Stockholder.
Stockholder hereby represents and warrants to Acquiror that, as of the date
hereof and at all times until the Expiration Date:
(a) Stockholder
is the beneficial owner of all of the Shares set forth on the signature page
of
this Agreement. Stockholder has sole voting power and sole power of disposition
with respect to all of the Shares set forth on the signature page hereof, with
no limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement; provided,
however,
Stockholder is affiliated with a number of funds, entities and individuals
that
form part of [fund]1 ,
and one
or more of such other related funds, entities or individuals may also be deemed
to beneficially own, solely from an economic perspective, a portion or all
of
such Shares. Stockholder does not beneficially own any securities of Sirna
other
than the Shares set forth on the signature page of this Agreement, as
supplemented from time to time pursuant to Section 11 hereof.
(b) Stockholder
acknowledges and agrees that all Warrants held by it or its Affiliates will,
immediately after the Merger (to the extent not exercised prior thereto), only
be exercisable for cash as and to the extent provided in such
Warrants.
(c) The
Shares are free and clear of any Encumbrances or other encumbrances of any
kind
or nature.
(d) 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 or breach, and
will not give rise to any violation or breach of, Stockholder’s certificate of
formation or limited liability company agreement or other organizational
documents (if Stockholder is not an individual), or any law, court order,
contract, instrument, arrangement or agreement by which such Stockholder is
a
party or is subject, including, without limitation, any voting agreement or
voting trust. This Agreement has been duly and validly
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name of applicable fund
group.
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executed
and delivered by Stockholder and constitutes a valid and binding agreement
of
Stockholder, enforceable against Stockholder in accordance with its terms,
subject to general principles of equity and as may be limited by bankruptcy,
insolvency, moratorium or similar laws affecting creditors’ rights generally.
(e) The
execution and delivery of this Agreement by Stockholder does not, and, to the
best of Stockholder’s knowledge, 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 Entity, other than required filings under Section 13 of
the
Exchange Act.
(f) Each
Stockholder will, in its capacity as a beneficial owner of the Shares,
(i) use all reasonable efforts to cooperate with Sirna and Acquiror in
connection with the Merger, (ii) provide any information reasonably requested
by
Sirna or Acquiror that Stockholder is legally and contractually permitted to
provide for any regulatory application or filing made or approval sought for
the
Merger and (iii) make all filings required by Stockholder to be made with all
third parties and Governmental Entities necessary for the consummation of the
transactions contemplated by this Agreement and the Merger Agreement and other
documents in connection with the Merger.
8. Representations
and Warranties of Acquiror.
Acquiror hereby represents and warrants to the Stockholder that, as of the
date
hereof, Acquiror has the legal capacity, power and authority to enter into
and
perform all of its obligations under this Agreement. The execution, delivery
and
performance of this Agreement by Acquiror will not violate or breach, and will
not give rise to any violation or breach of, its certificate of incorporation
or
any law, court order, contract, instrument, arrangement or agreement by which
such Acquiror is a party or is subject. This Agreement has been duly and validly
executed and delivered by Acquiror and constitutes a valid and binding agreement
of Acquiror, enforceable against Acquiror in accordance with its terms, subject
to general principles of equity and as may be limited by bankruptcy, insolvency,
moratorium or similar laws affecting creditors’ rights generally.
9. Consent.
Stockholder consents and authorizes Acquiror and Sirna to publish and disclose
in the Proxy Materials (including all documents filed with the SEC in connection
therewith) its identity and ownership of the Shares and the nature of its
commitments, arrangements and understandings under this Agreement.
10. No
Ownership Interest.
Nothing contained in this Agreement shall be deemed to vest in Acquiror 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.
11. 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 Acquiror of the number of any additional Shares and the number
and type of any other voting securities of Sirna acquired by Stockholder, if
any, after the date hereof.
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12. Directors
and Officers.
Notwithstanding anything in this Agreement to the contrary, if Stockholder
or
any affiliate thereof is a director or officer of Sirna, nothing contained
in
this Agreement shall prohibit such director or officer from (i) acting in
his/her capacity as such or from taking such action as a director or officer
of
Sirna that may be required on the part of such Person as a director or officer
of Sirna, including, without limitation, acting in compliance with Sections
7.2
and 7.3 of the Merger Agreement, but only to the extent that Sirna is permitted
to take such actions under the aforementioned Sections or (ii) complying with
such director or officer’s fiduciary duties under applicable law (in the context
of, and in the manner permitted by, Sections 7.2 and 7.3 of the Merger
Agreement).
13. Termination.
Except
as otherwise provided in this Section 13, this Agreement shall terminate and
be
of no further force or effect as of the Expiration Date. Notwithstanding
anything to the contrary contained herein, the provisions of Section 6 and
Section 15 shall survive the expiration or sooner termination of this Agreement.
14. Appraisal
Rights.
Stockholder irrevocably waives and agrees not to exercise any rights (including,
without limitation, under Section 262 of the DGCL) to demand appraisal of any
of
the Shares which may arise with respect to the Merger.
15. Miscellaneous.
(a) Entire
Agreement.
This Agreement constitutes the entire agreement between the parties hereto
with
respect to the subject matter hereof and supersedes all other prior agreements
and understandings, both written and oral, between 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.
(c) Assignment.
Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties.
(d) Amendment.
This Agreement may not be amended except by an instrument in writing signed
on
behalf of each of the parties hereto.
(e) Notices.
Any
notice, request, instruction or other document to be given hereunder by any
party to the others shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid, facsimile or by overnight
courier:
If
to
Aquiror:
Merck
& Co., Inc.
Xxx
Xxxxx
Xxxxx
X.X.
Xxx
000, XX0X-00
Whitehouse
Station, NJ 08889-0100
Attention:
Office
of
the Secretary
Facsimile:
(000)
000-0000
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with
a
copy, which will not constitute notice, to:
Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx
Xxx
Xxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx
X.
Shine/Xxxxx X. Xxxxxxx
Facsimile:
(000)
000-0000
If
to
Stockholder, to the address for notice set forth on the signature
page hereof.
with
a
copy, which will not constitute notice, to:
O’Melveny
& Xxxxx LLP
0000
Xxxx
Xxxx Xxxx
Xxxxx
Xxxx, Xxxxxxxxxx 00000
Attention:
Xxx
Xxxxxx
Facsimile:
(000)
000-0000
or
to
such other persons or addresses as may be designated in writing by the Person
to
receive such notice as provided above. Any
notice, request, instruction or other document given as provided above shall
be
deemed given to the receiving party upon actual receipt, if delivered
personally; three (3) business days after deposit in the mail, if sent by
registered or certified mail; upon confirmation of successful transmission
if
sent by facsimile; or on the next business day after deposit with an
internationally recognized overnight courier, if sent by such a
courier.
(f) Severability.
The provisions of this Agreement shall be deemed severable and the invalidity
or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any Person or any circumstance is
determined by a court of competent jurisdiction to be invalid, void or
unenforceable the remaining provisions hereof, shall, subject to the following
sentence, remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby, so long as the economic or legal substance
of
the transactions contemplated hereby is not affected in any manner adverse
to
either party. Upon such determination, the parties shall negotiate in good
faith
in an effort to agree upon such a suitable and equitable provision to effect
the
original intent of the parties.
(g) No
Waiver.
At any time prior to the Effective Time, the parties hereto may, to the extent
legally allowed, waive compliance with any of the obligations contained herein.
Any agreement on the part of a party hereto to any such waiver shall be valid
only if set forth in a written instrument signed on behalf of such party, but
such waiver or failure to insist on strict compliance with an obligation
contained herein shall not operate as a waiver of, or estoppel with respect
to,
any subsequent or other failure.
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(h) Governing
Law.
This Agreement shall be governed and construed in accordance with the laws
of
the State of Delaware, without regard to any applicable conflicts of law rules.
(i) Enforcement
of Agreement.
The
parties hereto agree that irreparable damage would occur in the event that
the
provisions of this Agreement were not performed in accordance with its specific
terms or were otherwise breached. It is accordingly agreed that the parties
shall be entitled to seek, without the posting of a bond, an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions thereof 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) Counterparts;
Signatures.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall be considered one and the
same agreement and shall become effective when counterparts have been signed
by
each of the parties hereto and delivered to the other parties, it being
understood that all parties need not sign the same counterpart. This Agreement
may be executed and delivered by facsimile transmission.
(k) Expenses.
Whether
or not the Merger is consummated, all costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such expense. The
Acquiror will not object if Sirna reimburses up to $10,000 of Stockholder’s
incurred legal fees and expenses in connection with this Agreement and related
matters.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF,
the
undersigned have executed, or caused this Voting Agreement to be executed by
a
duly authorized officer, as of the date first written above.
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MERCK
& CO., INC.
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STOCKHOLDER:
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By:
______________________________________
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By:
_________________________________
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Signature
of Authorized Signatory
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Signature
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Name:
____________________________________
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Name:
_______________________________
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Title:
_____________________________________
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Title:
________________________________
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Print
Address
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Shares
beneficially owned:
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__________
shares of Sirna Common Stock
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__________
shares of Sirna Common Stock issuable upon the exercise of outstanding
options, warrants or other rights
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