Exhibit 2
FORM OF CTI STOCKHOLDER VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as
of June 16, 2003, by and between Novuspharma S.p.A., an Italian joint stock
company ("Novuspharma"), and the undersigned stockholder (the "CTI
Stockholder") of Cell Therapeutics, Inc., a Delaware corporation ("CTI").
THE PARTIES TO THIS AGREEMENT enter into this Agreement on the basis
of the following facts, intentions and understandings:
A. As of the date hereof, the CTI Stockholder has full title to and
is entitled to dispose of (or to direct the disposition of) and/or vote (or to
direct the voting of) the number of shares of common stock, no par value, of
CTI ("CTI Common Stock"), set forth opposite such CTI Stockholder's name on
Schedule I attached hereto (such shares of CTI Common Stock are collectively
referred to herein as the "Subject Shares").
B. The parties hereto acknowledge that on June 16, 2003 (i) CTI's
board of directors approved the Plan of Merger (Progetto di Fusione) (the
"Merger Plan") in relation to the Merger (as defined below) and (ii) CTI and
Novuspharma entered into that certain Agreement and Plan of Merger dated as of
June 16, 2003 (together with the Merger Plan, as the same may be amended from
time to time, the "Merger Agreement"; capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Merger Agreement),
pursuant to which, upon the terms and subject to the conditions thereof,
Novuspharma will merge with and into CTI and CTI shall be the surviving
corporation (the "Merger").
C. The CTI Stockholder is aware that CTI and Novuspharma have entered
into the Merger Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein, the parties agree as follows:
ARTICLE I
TRANSFER AND VOTING OF SUBJECT SHARES
1.1 Transfer of Subject Shares. Except as may otherwise be agreed
upon by Novuspharma in writing and as contemplated by the terms of this
Agreement, from the date hereof through and including the date of the CTI
Stockholder Approval, the CTI Stockholder shall not, directly or indirectly,
(a) transfer (which term shall include, without limitation, any sale, gift,
pledge, encumbrance or other disposition), or consent to any transfer of, any
or all of the Subject Shares or any interest therein or any voting power in
relation thereto, (b) deposit the Subject Shares or any interest therein into
a voting trust or enter into a voting agreement or arrangement with respect to
the Subject Shares or grant any proxy, power of attorney or other
authorization in or with respect thereto, or (c) enter into any contract,
option or other agreement or understanding with respect to any such transfer
of any or all of the Subject Shares or any interest therein or any voting
power in relation thereto. Notwithstanding the foregoing or anything in the
contrary set forth in this
Agreement, (x) the CTI Stockholder may Transfer all or any of the Subject
Shares pursuant to, and in accordance with, the terms of the CTI Stockholder's
10b-5 plan or arrangement with CTI, if any, as in effect as of the date
hereof, and (y) the CTI Stockholder may sell Subject Shares (i) for cash to
the extent necessary to pay taxes incurred as a direct result of the exercise
of options to purchase CTI Common Stock after the date hereof, and (ii) to any
person who, prior to such sale, (A) executes a counterpart of this Agreement
and an irrevocable Proxy (as defined below) (with such modifications as
Novuspharma may reasonably request solely to reflect such transfer) and (B)
agrees in writing to hold such shares subject to all of the terms and
provisions of this Agreement.
1.2 Agreement to Vote the Subject Shares. The CTI Stockholder shall,
at each and every meeting of the stockholders of CTI called with respect to
any of the following, and at any adjournment or postponement thereof, and on
every action or approval by written consent of the stockholders of CTI with
respect to any of the following, and in any other circumstances upon which a
vote, consent or other approval with respect to any of the following is
sought, solely in its capacity as a stockholder of CTI, take each and every
action and accomplish each and every formality as is necessary to participate
in the meetings (if applicable) and vote (or cause to be voted) all of the
Subject Shares and each interest therein:
(a) in favor of the Merger and, upon the request of Novuspharma,
any actions required in furtherance thereof and hereof, including, without
limitation, any proposal to permit CTI to adjourn such meeting (an
"Adjournment Proposal"); and
(b) in favor of each other matter requiring the consent of the
CTI Stockholder and directly relating to the consummation of the transactions
contemplated by the Merger Agreement.
1.3 Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Concurrently with the execution of this Agreement, and from
time to time thereafter (including as soon as a CTI Shareholders' Meeting is
called concerning any of the matters set forth in Section 1.2 hereof), the CTI
Stockholder hereby agrees to deliver to Novuspharma an irrevocable proxy in
the form attached hereto as Exhibit A (the "Proxy") with respect to the
Subject Shares, which shall be coupled with an interest and irrevocable to the
fullest extent permissible by law.
(b) The CTI Stockholder represents that any proxies heretofore
given in respect of the Subject Shares are revocable, and that any such
proxies are hereby revoked or will be revoked by appropriate notice (or other
instrument) prior to or concurrently with the execution and delivery of this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE CTI STOCKHOLDER
The CTI Stockholder hereby represents and warrants to Novuspharma as
follows:
2
2.1 Ownership of Subject Shares. On the date hereof, the CTI
Stockholder owns, directly or indirectly, and has the power to direct the
voting of, the Subject Shares set forth next to the CTI Stockholder's name set
forth on Schedule I attached hereto. On the date hereof, the Subject Shares
constitute all of the shares of voting capital stock of Novuspharma owned of
record or otherwise by the CTI Stockholder or as to which such CTI Stockholder
has the power to direct the voting of such shares. The CTI Stockholder has
sole voting power and sole power to issue instructions with respect to the
matters set forth in Article 1 hereof, sole power of disposition, sole power
of conversion, sole power (if any) to demand, appraisal or rescission rights,
and sole power to agree to all of the matters set forth in this Agreement, in
each case with respect to all of the CTI Stockholder's Subject Shares, with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
2.2 Power; Binding Agreement. The CTI Stockholder has all requisite
powers and authority to enter into and perform all of its obligations under
this Agreement. The execution, delivery and performance of this Agreement by
the CTI Stockholder shall not violate any agreement to which the CTI
Stockholder is a party, including, without limitation, any voting agreement,
proxy arrangement, pledge agreement, stockholders agreement, voting trust or
trust agreement. This Agreement has been duly and validly executed and
delivered by the CTI Stockholder, and constitutes a legally valid and binding
obligation of the CTI Stockholder, enforceable against the CTI Stockholder in
accordance with its terms, except as may be limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally, or (b) general principles of equity
relating to enforceability, whether considered in a proceeding at law or in
equity. There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which the CTI Stockholder is a trustee whose
consent is required for the execution and delivery of this Agreement or the
compliance by the CTI Stockholder with the terms hereof.
2.3 No Conflicts. None of the execution and delivery of this
Agreement by the CTI Stockholder, the consummation by the CTI Stockholder of
the transactions contemplated hereby or compliance by the CTI Stockholder with
any of the provisions hereof shall (a) conflict with or violate any agreement,
law, rule, regulation, order, judgment or decision or other instrument binding
upon the CTI Stockholder or any of the CTI Stockholder's properties or assets,
nor require any consent, notification, regulatory filing or approval which has
not been obtained, (b) result in any violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give to
any third party a right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any material
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the CTI Stockholder is a
party or by which the CTI Stockholder or any of its properties or assets may
be bound or affected, or (c) if the CTI Stockholder is other than a natural
person, conflict with, or result in any breach of, any organizational
documents applicable to the CTI Stockholder.
2.4 No Liens. Except as established hereby, the Subject Shares (with
the exception of the Subject Shares which are not owned by the CTI
Stockholder, but for which the CTI Stockholder exercises the relevant voting
power) are now and, at all times during the term hereof will be (subject to
Section 1.1), held by the CTI
3
Stockholder, or by a nominee or custodian for the benefit of the CTI
Stockholder, free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever.
2.5 The CTI Stockholder hereby agrees, in the CTI Stockholder's
capacity as a stockholder of CTI, that the CTI Stockholder shall not, directly
or indirectly, take any action to solicit, initiate, encourage, facilitate,
participate in or initiate discussions or negotiations with, or provide any
information to, any person (other than CTI or any of its affiliates or
representatives) concerning a CTI Alternative Transaction; provided, however,
that nothing contained in this Section 2.5 shall restrict the CTI Stockholder
or any officer, director or employee of the CTI Stockholder or the CTI
Stockholder's subsidiaries, if applicable, from taking any action in his or
her capacity as a director, officer or employee of CTI which is permitted to
be taken pursuant to Section 4.3 of the Merger Agreement.
2.6 Accuracy of Representations. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of
this Agreement, will be accurate in all respects at all times until
termination of this Agreement.
ARTICLE III
COVENANTS
3.1 Reasonable Efforts. Subject to the terms and conditions of this
Agreement, Novuspharma agrees to use its reasonable efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
3.2 Permitted Actions. Nothing contained in this Agreement shall restrict the
CTI Stockholder or any officer, director or employee of the CTI Stockholder or
the CTI Stockholder's subsidiaries (if applicable) from taking any action in
his or her capacity as a director, officer or employee of CTI.
ARTICLE IV
TERMINATION
Other than Article V hereof (which shall survive in any event), this
Agreement and the covenants, representations and warranties, agreements and
irrevocable proxy or proxies contained herein or granted pursuant hereto shall
automatically terminate upon the earlier to occur of (i) the termination of
the Merger Agreement in accordance with Article VII thereof, and (ii) the
consummation of the Merger. Upon any termination of this Agreement, this
Agreement shall thereupon become void and of no further force and effect, and
there shall be no liability in respect of this Agreement or of any
transactions contemplated hereby or by the Merger Agreement on the part of any
party hereto or any of its directors, officers, partners, stockholders,
employees, agents, advisors, representatives or affiliates; provided, however,
that nothing herein shall relieve any party from any liability for such
party's willful breach of this Agreement; and provided further, that nothing
herein shall limit, restrict, impair, amend or otherwise modify the rights,
remedies,
4
obligations or liabilities of any person under any other contract or
agreement, including without limitation, the Merger Agreement.
ARTICLE V
MISCELLANEOUS
5.1 Specific Performance. Each party hereto recognizes and agrees
that, if for any reason any of the provisions of this Agreement are not
performed by the other parties in accordance with their specific terms or are
otherwise breached, immediate and irreparable harm or injury would be caused
to the non-breaching parties for which money damages would not be an adequate
remedy. Accordingly, the parties agree that, in addition to any other
available remedies, the non-breaching parties shall be entitled to an
injunction restraining any violation or threatened violation of the provisions
of this Agreement without the necessity of the non-breaching parties posting a
bond or other form of security. In the event that any action should be brought
in equity to enforce the provisions of this Agreement, the breaching party
will not allege, and the breaching party hereby waives the defense, that there
is an adequate remedy at law.
5.2 Severability. Any term or provision of this Agreement which is
invalid, illegal or unenforceable in any jurisdiction by any rule or law or
public policy shall, as to that jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without rendering invalid,
illegal or unenforceable the remaining terms and provisions of this Agreement
or affecting the validity, legality or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. Without limiting the
foregoing, upon such determination that any term or other provision is
invalid, illegal or unenforceable, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable
law in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the fullest extent possible.
5.3 Entire Agreement; Amendments. This Agreement constitutes the
entire agreement of the parties and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. This Agreement may not be amended except by an
instrument in writing signed by each of the parties against whom such
amendment is sought to be enforced.
5.4 Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or
in part, by operation of law or otherwise by either of the parties without the
prior written consent of the other party. Subject to the preceding sentence,
this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
5.5 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
5.6 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
duly given (a) on the date of delivery if delivered
5
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 an internationally recognized
overnight courier service, at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) if to the CTI Stockholder, to the addresses set forth next to
the CTI Stockholder's name on Schedule II attached hereto,
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation
Xxx Xxxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx X. Xxxxxxxx, Esq.
and
Gianni, Origoni, Xxxxxx & Partners Studio Legale
Xxx xxxxx Xxxxxxx Xxxxxxx, 00
Xxxx, Xxxxx
Facsimile: 00 00 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
(b) if to Novuspharma, to:
Novuspharma S.p.A. Xxx
Xxxxxx 00 00000 Xxxxxx (XX), Xxxxx
Facsimile: 00 (00) 000-00000
Attention: Xx. Xxxxxxx Xxxxxxxx
with a copy to:
Studio Legale Chiomenti
Xxx X. Xxxxx x.0
Xxxxx, Xxxxx 00000
Facsimile: 00 (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxx, XX 00000
6
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
5.7 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS THEREOF, EXCEPT TO THE EXTENT THAT
ANY MANDATORY PROVISIONS OF WASHINGTON STATE LAW SHALL APPLY. EACH OF THE
PARTIES HERETO (A) CONSENTS TO SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF
ANY UNITED STATES FEDERAL COURT LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK,
NEW YORK, IN THE EVENT ANY DISPUTE ARISES OUT OF THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (B) AGREES THAT IT WILL NOT
ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER
REQUEST FOR LEAVE FROM ANY SUCH COURT, AND (C) AGREES THAT IT WILL NOT BRING
ANY ACTION RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT IN ANY COURT OTHER THAN A UNITED STATES FEDERAL COURT
LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK, NEW YORK. SERVICE OF ANY
PROCESS, SUMMONS, NOTICE OR DOCUMENT BY MAIL TO SUCH PARTY'S ADDRESS SET FORTH
ABOVE SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER
PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY NOT LOCATED IN THE UNITED
STATES IRREVOCABLY APPOINTS CT CORPORATION SYSTEM, WHICH CURRENTLY MAINTAINS A
NEW YORK OFFICE AT 000 XXXXXX XXXXXX, XXX XXXX, XXX XXXX 00000, XXXXXX XXXXXX
OF AMERICA, AS ITS AGENT TO RECEIVE SERVICE OF PROCESS OR OTHER LEGAL SUMMONS
FOR PURPOSES OF ANY SUCH SUIT, ACTION OR PROCEEDING THAT MAY BE INSTITUTED IN
ANY UNITED STATES FEDERAL COURT LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK,
NEW YORK.
5.8 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE
AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. EACH PARTY ACKNOWLEDGES AND AGREES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD, IN THE EVENT OF
LITIGATION, SEEK TO PREVENT OR DELAY THE ENFORCEMENT OF EITHER OF SUCH
WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH
WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 5.8.
7
5.9 Counterparts; Effectiveness. This Agreement may be executed in
one or more 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 parties.
[Signature page follows.]
8
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date first written above.
"NOVUSPHARMA"
NOVUSPHARMA S.p.A.,
an Italian joint stock company
By: ________________________________
Name:
Title:
"CTI STOCKHOLDER"
____________________________________
[Name]
[SIGNATURE PAGE TO CELL THERAPEUTICS, INC. STOCKHOLDER VOTING AGREEMENT]
S-1
SCHEDULE I
Number of Shares Subject
CTI Stockholder to This Agreement
------------------------------------------------- ------------------------
Schedule I
SCHEDULE II
NOTICES
CTI Stockholder Notice To:
------------------------------------------------- ------------------------
Schedule II
EXHIBIT A TO
CTI STOCKHOLDER VOTING AGREEMENT
FORM OF IRREVOCABLE PROXY
The undersigned Stockholder of Cell Therapeutics, Inc., a Delaware
corporation ("CTI") hereby irrevocably (to the fullest extent permitted by
law) appoints Xx. Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxxx, and each of them
individually, in their capacities as officers of Novuspharma S.p.A., an
Italian joint stock company ("Novuspharma"), and any successor in any office
of Novuspharma currently held by either or both, as the undersigned's
attorney-in-fact (with full power of substitution and resubstitution), for and
in the name, place and stead of the undersigned, to represent the undersigned
at the CTI Shareholders' Meeting, and to vote and exercise all other rights
belonging to the undersigned in his/her/its capacity as a stockholder of CTI
with respect to all of the shares of common stock, no par value, of CTI ("CTI
Common Stock"), that now are or hereafter may be beneficially owned by the
undersigned, or the voting power or title over which may be acquired by the
undersigned on or after the date hereof (the "Subject Shares"):
(a) in favor of the Merger, and any actions required in
furtherance thereof and hereof, including, without limitation, any proposal to
permit CTI to adjourn such meeting (an "Adjournment Proposal"); and
(b) in favor of each other matter requiring the consent of
the Stockholder and directly relating to the consummation of the transactions
contemplated by the Merger Agreement
The Subject Shares beneficially owned by the undersigned as of the
date of this Proxy are listed on Schedule I to that certain CTI Stockholder
Voting Agreement dated June 16, 2003, by and between Novuspharma and the
undersigned (as the same may be amended from time to time, the "Voting
Agreement").
This Proxy is irrevocable (to the fullest extent permitted by law),
is coupled with an interest and is granted pursuant to the Voting Agreement in
consideration of Novuspharma entering into the Agreement and Plan of Merger
dated as of June 16, 2003 (as the same may be amended from time to time, the
"Merger Agreement"), by and between CTI and Novuspharma (capitalized terms
used herein and not otherwise defined shall have the meanings set forth in the
Merger Agreement).
A-1
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned. The undersigned hereby ratifies and
confirms in advance all that such attorneys-in-fact may lawfully do or cause
to be done by virtue of this Proxy.
Dated: June __, 2003
[CTI Stockholder]
_________________________________
A-2
