Contract
Exhibit 99.2
Voting Agreement,
dated as of July 8, 2008 (this
“Agreement”), among Xxx Xxxxx and Company, an
Indiana corporation (“Parent”), and each of the
stockholders listed on Schedule I to this Agreement (each,
a “Stockholder” and, collectively, the
“Stockholders”).
Introduction
Parent, REM Merger Sub,
Inc., a Delaware corporation and wholly owned subsidiary
of Parent (“Merger Sub”), and SGX
Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), propose to enter into an Agreement
and Plan of Merger, dated as of the date hereof (as it may be
amended or supplemented from time to time, the “Merger
Agreement”), pursuant to which, upon the terms and
subject to the conditions thereof, Merger Sub will be merged
with and into the Company, and the Company will be the surviving
entity (the “Merger”).
As of the date hereof, each Stockholder is the record and
beneficial owner of the number of shares (the
“Shares”) of common stock, par value
$0.001 per share, of the Company (the “Company
Common Stock”), set forth opposite such
Stockholder’s name on Schedule I attached hereto (such
Shares, together with any other shares of capital stock of the
Company acquired by such Stockholder after the date hereof and
during the term of this Agreement (including through the
exercise of any stock options, warrants or any other convertible
or exchangeable securities or similar instruments), being
collectively referred to herein as such Stockholder’s
“Subject Shares”).
As a condition to its willingness to enter into the Merger
Agreement, Parent has required that each Stockholder agree, and
each Stockholder is willing to agree, to the matters set forth
herein.
In consideration of the foregoing and the agreements set forth
below, the parties hereto agree as follows:
Section 1. Defined
Terms. Capitalized terms used but not defined
herein have the meanings set forth in the Merger Agreement.
Section 2. Voting
of Shares.
(a) Voting. For so long as this
Agreement is in effect, each Stockholder hereby agrees to vote
(or cause to be voted) all of such Stockholder’s Subject
Shares, at every annual, special or other meeting of the
stockholders of the Company, and at any adjournment or
adjournments thereof, or pursuant to any consent in lieu of a
meeting or otherwise:
(i) in favor of the Merger and the adoption of the Merger
Agreement and the approval of the Transactions, and any actions
required in furtherance thereof;
(ii) against any action or agreement that would result in a
breach in any material respect of any covenant, representation
or warranty or any other obligation of the Company under the
Merger Agreement; and
(iii) against (A) any extraordinary corporate
transaction, such as a merger, rights offering, reorganization,
recapitalization or liquidation involving the Company or any of
its subsidiaries (other than the Merger), (B) a sale or
transfer of a material amount of assets or capital stock of the
Company or any of its subsidiaries or (C) any action that
is intended, or would reasonably be expected, to impede,
interfere with, prevent, delay, postpone or adversely affect the
Transactions.
(b) Grant of Irrevocable
Proxy. Such Stockholder hereby irrevocably
grants to, and appoints, Parent and any individual who shall
hereafter be designated by Parent, and each of them, such
Stockholder’s proxy and
attorney-in-fact
(with full power of substitution), for and in the name, place
and stead of such Stockholder, to vote, or cause to be voted,
such Stockholder’s Subject Shares, or grant a consent or
approval in respect of such Stockholder’s Subject Shares,
at every annual, special or other meeting of the stockholders of
the Company, and at any adjournment or adjournments thereof, or
pursuant to any consent in lieu of a meeting or otherwise, with
respect to the matters and in the manner specified in
Section 2(a) hereof (and not with respect to any other
matters); provided, however, that the foregoing
proxy shall terminate immediately upon termination of this
Agreement in accordance with its terms. Each Stockholder
understands and acknowledges that Parent is entering into the
Merger Agreement in
reliance upon the
Stockholders’ execution and delivery of this Agreement.
Each Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 2(b) is given in connection with the
execution of the Merger Agreement, and that such irrevocable
proxy is given to secure the performance of the duties of such
Stockholder under this Agreement. Subject to this
Section 2(b), this grant of proxy is coupled with an
interest and may under no circumstances be revoked. Each
Stockholder hereby ratifies and confirms all actions (including
voting or causing to be voted such Stockholder’s Subject
Shares or granting an approval or consent in respect of such
Stockholder’s Subject Shares) that may be lawfully taken by
such irrevocable proxy in accordance herewith. Such irrevocable
proxy is executed and intended to be irrevocable in accordance
with the provisions of Section 212 of the Delaware General
Corporation Law, subject to the terms hereof.
Section 3. Fiduciary
Responsibilities. No Stockholder executing
this Agreement who is or becomes during the term hereof a
director or officer of the Company makes (or shall be deemed to
have made) any agreement or understanding herein in his or her
capacity as such director or officer. Without limiting the
generality of the foregoing, each Stockholder signs solely in
his, her or its capacity as the record and beneficial owner of
such Stockholder’s Subject Shares and nothing herein shall
limit or affect any actions taken by such Stockholder (or a
designee of such Stockholder) in his or her capacity as an
officer or director of the Company in exercising his or her or
the Company’s or the Company’s Board of
Directors’ rights in connection with the Merger Agreement
or otherwise and such actions shall not be deemed to be a breach
of this Agreement.
Section 4. Representations
and Warranties of Stockholder. Each
Stockholder, severally and not jointly, represents and warrants
to Parent as follows as of the date hereof:
(a) Binding Agreement. Such
Stockholder has the capacity to execute and deliver this
Agreement and to perform its obligations hereunder. Such
Stockholder has duly and validly executed and delivered this
Agreement and this Agreement constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting
creditors’ rights generally and by general equitable
principles (regardless of whether enforceability is considered
in a proceeding in equity or at law).
(b) No Conflict. Neither the
execution and delivery of this Agreement by such Stockholder,
nor the performance by such Stockholder of its obligations
hereunder will (i) require any consent, approval,
authorization or permit of, registration, declaration or filing
(except for such filings as may be required under the federal
securities laws, the HSR Act or as would not prevent, delay or
otherwise impair such Stockholder’s ability to perform its
obligations hereunder) with, or notification to, any
Governmental Authority, (ii) if such Stockholder is an
entity, result in a violation of, or default under, or conflict
with any provision of its certificate of incorporation, bylaws,
partnership agreement, limited liability company agreement or
similar organizational documents, (iii) result in a
violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation, or acceleration) under any
contract, trust, agreement, instrument, commitment, arrangement
or understanding applicable to such Stockholder or such
Stockholder’s Subject Shares, or result in the creation of
a security interest, lien, charge, encumbrance, equity or claim
with respect to any of such Stockholder’s Subject Shares,
except, in the case of clause (iii), as would not prevent,
delay or otherwise impair such Stockholder’s ability to
perform its obligations hereunder, (iv) require any
consent, authorization or approval of any Person other than a
Governmental Authority, except, in the case of clause (iv),
as would not prevent, delay or otherwise impair such
Stockholder’s ability to perform its obligations hereunder
or (v) violate or conflict with any order, writ,
injunction, decree, rule, regulation or law applicable to such
Stockholder or such Stockholder’s Subject Shares. If such
Stockholder is a married individual and such Stockholder’s
Subject Shares constitute community property or otherwise need
spousal approval in order for this Agreement to be a legal,
valid and binding obligation of such Stockholder, this Agreement
has been duly authorized, executed and delivered by, and
constitutes a legal, valid and binding obligation of, such
Stockholder’s spouse, enforceable against such spouse in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting creditors’ rights generally
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law).
(c) Ownership of Shares. Such
Stockholder is the record and beneficial owner of the Shares set
forth opposite such Stockholder’s name on Schedule I
attached hereto free and clear of any security interests, liens,
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charges, encumbrances, equities, claims, options or limitations
of whatever nature and free of any other limitation or
restriction (including any restriction on the right to vote,
sell or otherwise dispose of such Shares), except for any such
encumbrances arising hereunder. There are no outstanding
options, shares of Company Common Stock subject to vesting or
other rights to acquire from such Stockholder, or obligations of
such Stockholder to sell or to dispose of, any of the Shares set
forth opposite such Stockholder’s name on Schedule I
attached hereto. Except as provided in Section 2 hereof,
such Stockholder holds exclusive power to vote the Shares set
forth opposite such Stockholder’s name on Schedule I
attached hereto. As of the date of this Agreement, the Shares
set forth opposite such Stockholder’s name on such
Schedule I attached hereto represent all of the shares of
capital stock of the Company beneficially owned by such
Stockholder.
Section 5. Representations
and Warranties of Parent. Parent represents
and warrants to the Stockholders as follows as of the date
hereof:
(a) Binding Agreement. Parent is a
corporation organized, validly existing and in good standing
under the laws of the State of Indiana and has full corporate
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Parent and the consummation of
the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of Parent, and no other
corporate proceedings on the part of Parent are necessary to
authorize the execution, delivery and performance of this
Agreement by Parent and the consummation of the transactions
contemplated hereby (except as described in Section 4.3 of
the Merger Agreement). Parent has duly and validly executed this
Agreement and this Agreement constitutes a legal, valid and
binding obligation of Parent, enforceable against Parent in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting creditors’ rights generally
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law).
(b) No Conflict. Neither the
execution and delivery by Parent of this Agreement, nor the
performance by Parent of its obligations hereunder will
(i) require any consent, approval, authorization or permit
of, registration, declaration or filing (except for such filings
as may be required under the federal securities laws, the HSR
Act or as would not be expected to prevent, delay or otherwise
impair Parent’s ability to perform its obligations
hereunder) with, or notification to, any governmental entity,
(ii) result in a violation of, or default under, or
conflict with any provision of its organizational documents,
(iii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation, or
acceleration) under any contract, trust, agreement, instrument,
commitment, arrangement or understanding applicable to Parent,
except, in the case of clause (iii), as would not prevent,
delay or otherwise impair Parent’s ability to perform its
obligations hereunder, (iv) require any consent,
authorization or approval of any Person other than a
governmental entity, except, in the case of clause (iv), as
would not prevent, delay or otherwise impair such Parent’s
ability to perform its obligations hereunder or (v) violate
or conflict with any order, writ, injunction, decree, rule,
regulation or law applicable to Parent.
Section 6. Transfer
and Other Restrictions. For so long as this
Agreement is in effect:
(a) Certain Prohibited
Transfers. Each Stockholder agrees not to:
(i) sell, transfer, pledge, encumber, assign or otherwise
dispose of (collectively, the “Transfer”), or
enter into any contract, option or other arrangement or
understanding with respect to the Transfer of, such
Stockholder’s Subject Shares or any interest contained
therein;
(ii) grant any proxies or powers of attorney or enter into
a voting agreement or other arrangement with respect to such
Stockholder’s Subject Shares, other than this Agreement;
(iii) enter into, or deposit such Stockholder’s
Subject Shares into, a voting trust or take any other action
which would, or could reasonably be expected to, result in a
diminution of the voting power represented by any of such
Stockholder’s Subject Shares; or
(iv) commit or agree to take any of the foregoing actions.
Notwithstanding the foregoing, nothing in this Agreement shall
prohibit a Transfer of Subject Shares by a Stockholder
(1) if the Stockholder is an individual (x) to any
member of such Stockholder’s immediate family, or to
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a trust for the benefit of such Stockholder or any member of
such Stockholder’s immediate family, or (y) upon the
death of such Stockholder, or (2) if the Stockholder is a
partnership or limited liability company, to one or more
partners or members of such Stockholder or to an affiliated
corporation under common control with such Stockholder;
provided, however, that a Transfer referred to in
this sentence shall be permitted only if, (A) as a
precondition to such Transfer, the transferee agrees in a
writing, reasonably satisfactory in form and substance to
Parent, to be bound by all of the terms of this Agreement as a
Stockholder hereunder and (B) such Transfer shall not
result in the incurrence of any Lien upon any shares of Company
Common Stock.
(b) Efforts. Each Stockholder
agrees not to take any action which would make any
representation or warranty of such Stockholder herein untrue or
incorrect in any material respect as of any time prior to the
termination hereof or take any action that would have the effect
of preventing or disabling it from performing its obligations
under this Agreement. Subject to Section 3 hereof, for so
long as this Agreement is in effect, each Stockholder and Parent
shall use their reasonable best efforts to take, or cause to be
taken, all actions (including executing and delivering
additional documents) and do, or cause to be done, and to assist
and cooperate with the other parties hereto in doing, all
things, in each case, as may reasonably be necessary or
desirable to carry out the provisions of this Agreement.
(c) Additional Shares. In the
event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of
shares of capital stock of the Company on, of or affecting any
Stockholder’s Subject Shares or (ii) any Stockholder
becomes the beneficial owner of any additional shares of Company
Common Stock or other securities entitling the holder thereof to
vote or give consent with respect to the matters set forth in
Section 2(a) hereof, then the terms of this Agreement shall
apply to the shares of capital stock or other securities of the
Company held by such Stockholder immediately following the
effectiveness of the events described in clause (i) or such
Stockholder becoming the beneficial owner thereof, as described
in clause (ii), as though they were such Stockholder’s
Subject Shares hereunder. Each Stockholder hereby agrees, while
this Agreement is in effect, to notify Parent of the number of
any new shares of Company Common Stock acquired by such
Stockholder, if any, after the date hereof.
Section 7. Appraisal
Rights. Each Stockholder hereby agrees not to
exercise any appraisal rights or any dissenters’ rights
that such Stockholder may have (whether under applicable law or
otherwise) or could potentially have or acquire in connection
with the Merger Agreement and the Transactions.
Section 8. No
Solicitation. For so long as this Agreement
is in effect, no Stockholder shall, nor shall such Stockholder
permit any investment banker, attorney or other advisor or
representative of the Stockholder to, directly or indirectly
through another Person, solicit, initiate or encourage, or take
any other action to facilitate, any inquiries or the making of
any proposal that constitutes, or may reasonably be expected to
lead to, any Takeover Proposal; provided, however,
that any action which is permitted by the Merger Agreement to be
taken by a stockholder in his or her capacity as a director or
officer or which is permitted by Section 3 hereof shall not
be prohibited by the foregoing.
Section 9. Specific
Enforcement; Jurisdiction. 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 the terms hereof or were otherwise breached and
that the non-breaching party shall be entitled to specific
performance of the terms hereof in addition to any other remedy
which may be available at law or in equity. It is accordingly
agreed that the non-breaching party will be entitled to an
injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this
Agreement in any state or federal court located in the State of
Delaware or in the Court of Chancery of the State of Delaware,
the foregoing being in addition to any other remedy to which
they are entitled at law or in equity. In addition, each of the
parties hereto (a) consents to submit itself to the
personal jurisdiction of any state or federal court located in
the State of Delaware or in the Court of Chancery of the State
of Delaware 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 state or federal court located in the State of Delaware
or the Court of Chancery of the State of Delaware.
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Section 10. Termination. This
Agreement (including any proxies granted hereunder) shall
terminate and cease to have any force or effect on the earliest
of (a) the termination of the Merger Agreement in
accordance with its terms, (b) with respect to any
Stockholder, the written agreement of such Stockholder and
Parent to terminate this Agreement, (c) the consummation of
the Merger, and (d) the amendment of the Merger Agreement
to alter the Merger Consideration in a manner adverse to the
Stockholders unless such amendment has been consented to by the
Stockholders in writing prior to or simultaneously with such
amendment; provided, however, that
(i) Sections 9 through 19 shall survive any
termination of this Agreement and (ii) termination of this
Agreement shall not relieve any party from liability for any
breach of its obligations hereunder committed prior to such
termination.
Section 11. Notices. All
notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if delivered
personally, mailed by certified mail (return receipt requested)
or sent by overnight carrier or by facsimile (upon confirmation
of receipt) to the parties at the following addresses or at such
other as shall be specified by the parties by like notice:
(a) if to Parent, to the appropriate address set forth in
Section 10.1 of the Merger Agreement; and (b) if to a
Stockholder, to the appropriate address set forth on
Schedule I hereto.
Section 12. Certain
Events. Each Stockholder agrees that, while
in effect, this Agreement and the obligations hereunder shall
attach to such Stockholder’s Subject Shares and shall be
binding upon any person or entity to which legal or beneficial
ownership of such Stockholder’s Subject Shares shall pass,
whether by operation of law or otherwise, including such
Stockholder’s heirs, guardians, administrators or
successors.
Section 13. Entire
Agreement. This Agreement (including the
documents and instruments referred to herein) constitutes the
entire agreement and supersedes all other prior agreements and
understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof.
Section 14. Amendment. 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; provided, however,
that with respect to the obligations of any individual
Stockholder under this Agreement, this Agreement may be amended
with the approval of such Stockholder and Parent notwithstanding
the failure to obtain the approval of other Stockholders.
Section 15. Successors
and Assigns. This Agreement shall not be
assigned by a merger, operation of law or otherwise without the
prior written consent of the other parties hereto, except as
expressly provided by Section 6(a). This Agreement will be
binding upon, inure to the benefit of and be enforceable by each
party and such party’s heirs, beneficiaries, executors,
successors, representatives and permitted assigns.
Section 16. Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, and delivered
by means of facsimile transmission or otherwise, each of which
when so executed and delivered shall be deemed to be an original
and all of which when taken together shall constitute one and
the same agreement.
Section 17. GOVERNING
LAW. 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.
Section 18. Severability. If
any provision of this Agreement shall be held to be illegal,
invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire
Agreement. Such provision shall be deemed to be modified to the
extent necessary to render it legal, valid and enforceable, and
if no such modification shall render it legal, valid and
enforceable, then this Agreement shall be construed as if not
containing the provision held to be invalid, and the rights and
obligations of the parties shall be construed and enforced
accordingly.
Section 19. 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.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed, individually or by its respective
officer thereunto duly authorized, as of the date first written
above.
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Xxx Xxxxx and Company
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By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx Senior Vice President,
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Corporate Strategy and Business Development
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Stockholders:
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/s/ Xxxxxxx Xxxx
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/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx Xxxx
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Xxxxxxx X. Xxxxxx | |
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/s/ W. Xxxx Xxxxx
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/s/ Xxxxxxxxx Xxxxx
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W. Xxxx Xxxxx
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Xxxxxxxxx Xxxxx | |
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/s/ Xxxxx Xxxxxxx
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/s/ Xxxxxxxxxxx X. Xxxxxx
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Xxxxx Xxxxxxx
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Xxxxxxxxxxx X. Xxxxxx | |
| BAVP, L.P. | ||
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By: Scale Venture Management I, LLC
its general partner |
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| By: /s/ Xxx Xxxx | ||
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Name: Xxx Xxxx
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Title: Managing Director
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| ATLAS VENTURE FUND III, L.P. ATLAS VENTURE ENTREPRENEURS’ FUND III, L.P. | ATLAS VENTURE FUND IV, L.P. ATLAS VENTURE ENTREPRENEURS’ FUND IV, L.P. | |
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By: Atlas Venture Associates III, L.P.
their general partner |
By: Atlas Venture Associates IV, L.P.
their general partner |
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By: Atlas Venture Associates III, Inc.
its general partner |
By: Atlas Venture Associates IV, Inc.
its general partner |
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By: /s/ Xxxx Xxxxxxx
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By: /s/ Xxxx Xxxxxxx | |
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Name: Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx | |
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Title: Vice President
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Title: Vice President | |
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SCHEDULE I
TO
VOTING AGREEMENT
VOTING AGREEMENT
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Number of Shares of |
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Name and Address of Stockholder
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Company Common Stock | |||
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Xxxxxxx Xxxx
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100,000 | |||
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00000 Xxxxxxx Xxxxxx
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Xxx Xxxxx, XX 00000
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W. Xxxx
Xxxxx
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23,442 | |||
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00000 Xxxxxxx Xxxxxx
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Xxx Xxxxx, XX 00000
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Xxxxx
Xxxxxxx
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12,500 | |||
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00000 Xxxxxxx Xxxxxx
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Xxx Xxxxx, XX 00000
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Xxxxxxx X.
Xxxxxx
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55,731 | |||
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00000 Xxxxxxx Xxxxxx
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||||
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Xxx Xxxxx, XX 00000
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Xxxxxxxxx
Xxxxx
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22,660 | |||
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00000 Xxxxxxx Xxxxxx
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Xxx Xxxxx, XX 00000
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Xxxxxxxxxxx X.
Xxxxxx
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97,165 | |||
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00000 Xxxxxxx Xxxxxx
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Xxx Xxxxx, XX 00000
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BAVP, L.P.
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2,546,747 | |||
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000 Xxxxx Xxxx, Xxxxx 000
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Xxxxxx Xxxx, XX 00000
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ATLAS VENTURE FUND III, L.P.
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27,734 | |||
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000 Xxxxxx Xxxxxx, Xxxxx 000
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Xxxxxxx, XX 00000
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ATLAS VENTURE
ENTREPRENEURS’ FUND III, L.P.
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602 | |||
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000 Xxxxxx Xxxxxx, Xxxxx 000
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Xxxxxxx, XX 00000
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ATLAS VENTURE
FUND IV, L.P.
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2,426,391 | |||
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000 Xxxxxx Xxxxxx, Xxxxx 000
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Xxxxxxx, XX 00000
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ATLAS VENTURE
ENTREPRENEURS’ FUND IV, L.P.
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30,341 | |||
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000 Xxxxxx Xxxxxx, Xxxxx 000
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Xxxxxxx, XX 00000
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7
