VOTING AGREEMENT
This VOTING AGREEMENT (this "Voting Agreement") is made and entered into as
of June 30, 2001, by and among Introgen Therapeutics, Inc., a Delaware
corporation ("Introgen"), Xxxxx-Xxxxxxx Xxxxx International (Holdings), Inc., a
Delaware corporation ("RPRIH"), and Aventis Pharmaceuticals Products Inc., a
Pennsylvania corporation ("APPI", and together with RPRIH, the "Aventis
Holders"), each of whom is sometimes referred to herein as a "Party" and
collectively as the "Parties."
RECITALS
WHEREAS, Introgen and APPI are each a party to that certain Restated p53
and K-ras Agreement of even date herewith, whereby each has agreed, among other
things, to enter into this Voting Agreement; and
WHEREAS, as of the date hereof, the RPRIH is the holder of record of
3,968,893 shares of Introgen's Common Stock, par value $0.001 per share (the
"Existing Introgen Shares"); and
WHEREAS, pursuant to that certain Series A Non-Voting Convertible Preferred
Stock Purchase Agreement of even date herewith by and among Introgen, APPI and
RPRIH (the "Stock Purchase Agreement"), Introgen has agreed to sell, and APPI
has agreed to purchase, at the Closing (as defined in the Stock Purchase
Agreement) 100,000 shares of Introgen's Series A Non-Voting Convertible
Preferred Stock, par value $0.001 per share (the "Series A Shares"), which
Series A Shares are convertible into shares of Introgen common stock. The
Existing Introgen Shares and the shares of common stock of Introgen actually
issued upon the conversion of the Series A Shares (the "Conversion Shares") are
collectively referred to herein as the "Introgen Shares;" and
WHEREAS, APPI contemplates the formation of an affiliated or otherwise
related company ("Gencell") and may wish to transfer some or all of the Series A
Shares or Conversion Shares to Gencell; and
WHEREAS, the Stock Purchase Agreement contemplates, among other things,
that the Company, APPI and RPRIH enter into this Voting Agreement and that this
Voting Agreement become effective upon the Closing of the purchase and sale of
the Series A Shares under the Stock Purchase Agreement (the "Effective Date");
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
1. Voting on Corporate Action.
(a) Voting Agreement.
(i) In the event that, following the Effective Date, a Corporate
Action (i) is approved by Introgen's Board of Directors or other
governing body and (ii) receives approval of the holders of not less
than a majority of Introgen's outstanding Voting Securities without
taking into account any such securities held by any of the Aventis
Holders, each of the Aventis Holders shall consent to and vote all of
the Introgen Shares held by it in favor of such Corporate Action at
any meeting of stockholders (or by any action by written consent)
called to consider the approval of such Corporate Action.
(ii) In the event that, following the Effective Date, a Corporate
Action (i) is approved by Introgen's Board of Directors or other
governing body and (ii) is rejected by the holders of not less than a
majority of Introgen's outstanding Voting Securities without taking
into account any such securities held by any of the Aventis Holders,
each of the Aventis Holders shall consent to and vote all of the
Introgen Shares held by it against such Corporate Action at any
meeting of stockholders (or by any action by written consent) called
to consider the approval of such Corporate Action.
(iii) A "Corporate Action" shall mean any matter put to a vote of
the stockholders of Introgen. "Voting Securities" shall mean, with
respect to any specified person, any class or classes of Capital Stock
of the specified person pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect at least a
majority of the board of directors, supervisory board, managers or
trustees of the specified person (irrespective of whether or not, at
the time, stock of any other class or classes have, or might have,
voting power by reason of the happening of any contingency). "Capital
Stock" shall mean, with respect to any person, any and all shares,
interests, participation, rights or other equivalents in the equity
interests (however designated) in that person.
(b) Power of Attorney. If any of the Aventis Holders fails or refuses
to vote the Introgen Shares held by it as required by, or votes the
Introgen Shares held by it in contravention of this Section 1, then
Introgen's Chairman of the Board or Chief Executive Officer shall have an
irrevocable proxy, coupled with an interest, to vote such Introgen Shares
in accordance with this Section 1. Each of the Aventis Holders hereby
grants to Introgen's Chairman of the Board and Chief Executive Officer such
an irrevocable proxy and hereby appoints Introgen's Chairman of the Board
and Chief Executive Officer, and each of them acting singly, its
attorney-in-fact to vote the Introgen Shares held by it in accordance with
the terms of this Section 1. In the event that any of the Aventis Holders
fails or refuses to comply for any reason with the provisions of this
Section 1, Introgen, at its option, may elect to proceed with the Corporate
Action notwithstanding such failure or refusal. The voting of shares
pursuant to this Voting Agreement may be effected in person, by proxy, by
written consent or in any other manner permitted by applicable law.
(c) The proxies granted pursuant to this Section 1 shall be deemed
coupled with an interest and are irrevocable for the term of this Voting
Agreement. It is agreed and understood that (i) monetary damages would not
adequately compensate an injured Party for the
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breach of this Section 1 by any Party, (ii) this Section 1 shall be
specifically enforceable, and (iii) any breach or threatened breach of this
Section 1 shall be the proper subject of a temporary or permanent
injunction or restraining order. Further, each Party waives any claim or
defense that there is an adequate remedy at law for such any breach or
threatened breach.
(d) After receiving proper notice, one or more representatives of each
Aventis Holder, as a holder of Introgen Shares, shall be present, in person
or by proxy, at all meetings of stockholders of Introgen, as appropriate,
to vote upon a proposed Corporate Action so that all of the Introgen Shares
beneficially owned by the Aventis Holders and/or their respective
affiliated entities may be counted for the purposes of determining the
presence of a quorum at such meetings.
(e) The Aventis Holders shall not deposit any of the Introgen Shares
beneficially owned by either of them in a voting trust or subject any such
securities to any arrangement or agreement with respect to the voting of
such securities provided that this provision will not restrict the right of
APPI to transfer any Series A Shares or Conversion Shares to Gencell as
contemplated by Section 2.
(f) This Voting Agreement shall extend to any national or state
statutory approval rights for any Corporate Action that either Aventis
Holder may have by virtue of beneficially holding Introgen Shares.
2. Gencell as a Party.
(a) APPI shall have the right to transfer some or all of its Series A
Shares or Conversion Shares to Gencell in accordance with the terms of the
Stock Purchase Agreement. In connection with any such transfer, APPI shall
cause Gencell to agree to be bound by the obligations of this Voting
Agreement as a Party with respect to such transferred shares and to execute
and deliver to Introgen a counterpart signature page to this Voting
Agreement.
3. Termination.
(a) This Voting Agreement, except for the obligation of Introgen set
forth in the last sentence of Section 4, shall terminate as to any Introgen
Shares on the earliest to occur of: (i) the date upon which such shares are
sold into an established trading market for such shares in accordance with
applicable securities laws, including sales made under Rule 144 under the
Securities Act of 1933, as amended; (ii) the date upon which such shares
are sold under an effective registration statement covering such shares
filed with the United States Securities and Exchange Commission under the
Securities Act of 1933, as amended; (iii) the date upon which such shares
are sold by either of the Aventis Holders in a private sale to a
non-affiliate (as such term "affiliate" is defined in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended) of such Aventis Holder that is not either (x) a direct competitor
of Introgen whose main line of activity (based on publicly-available
information or, in the case of a privately-held company, otherwise commonly
known information regarding such competitor) is the development of gene
therapy products or (y) a pharmaceutical company; or (iv) the date
indicated in paragraph (b) below.
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(b) In any event, this Voting Agreement shall terminate on the date
corresponding to the tenth anniversary of the Effective Date of this Voting
Agreement.
4. Legend. Concurrently with (i) the execution of this Voting Agreement,
with respect to the Existing Introgen Shares outstanding on the date of this
Voting Agreement; and (ii) the issuance of the Conversion Shares, with respect
to such shares, there shall be imprinted or otherwise placed, on certificates
representing such shares a restrictive legend substantially to the following
effect (the "Legend"):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF A CERTAIN VOTING AGREEMENT DATED AS OF JUNE
30, 2001 AMONG THE CORPORATION, THE ORIGINAL HOLDER OF THESE
SECURITIES AND CERTAIN OTHER PARTIES. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.
If such shares are not certificated, then a substantially similar notification
shall be placed in an appropriate fashion with the person charged with
maintaining registration of the ownership of such shares so as to put on notice
of the terms and conditions of this Voting Agreement any transferee of such
shares. Following the termination of this Voting Agreement with respect to any
Introgen Shares, upon the request of the Aventis Holder that holds or held such
shares, Introgen shall issue to or as directed by such Aventis Holder a new
certificate or certificates representing such Introgen Shares that does not or
do not contain the Legend.
5. Miscellaneous
(a) Governing Law. This Voting Agreement shall be governed in all
respects by and in accordance with the laws of the State of Delaware,
without regard to the principles of conflicts of law thereof.
(b) Equitable Relief. The Parties hereby agree that it would be
impossible to measure in money the damages that may accrue to a Party by
reason of a failure of another Party to perform any of the obligations
under this Voting Agreement, and further agree that the terms of this
Voting Agreement shall be specifically enforceable. If any Party institutes
any action or proceeding to specifically enforce the provisions hereof, any
other Party against whom such action or proceeding is brought hereby waives
the claim or defense therein that the instituting Party has an adequate
remedy at law, and such other Party shall not offer in any such action or
proceeding the claim or defense that such remedy at law exists.
(c) Successors and Assigns; Assignment. The provisions of this Voting
Agreement shall be binding on and inure to the benefit of the Parties and
their respective successors and permitted assigns. APPI shall have the
right to have Gencell assume those obligations of APPI under this Voting
Agreement that relate to any Introgen Shares transferred by APPI to Gencell
in accordance with Section 2. APPI shall cause Gencell to assume the those
obligations of APPI under this Voting Agreement that relate to any Introgen
Shares transferred by APPI to Gencell in accordance with Section 2.
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(d) Entire Agreement. This Voting Agreement constitutes the entire
agreement among the Parties with respect to the subject matter hereof, and
supersedes all prior or contemporaneous agreements and understandings,
whether written or oral, among the Parties with respect to such subject
matter.
(e) Amendment. Except for the addition of Gencell as a Party hereto in
accordance with Section 2, no amendment or modification of any provision of
this Voting Agreement shall be effective unless in writing signed by all of
the Parties. No provision of this Voting Agreement shall be varied,
contradicted or explained by any oral agreement, course of dealing or
performance, or any other matter not set forth in an agreement in writing
and signed by all of the Parties.
(f) Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered (by courier service or otherwise) or
sent by registered or certified mail (return receipt requested and postage
prepaid), in each case to the respective address specified below, or such
other addresses as may be specified in writing by such party to the other
party hereto, or sent by confirmed telecopier, as follows:
Aventis Holders:
Aventis Pharmaceuticals Products Inc.
Xxxxx 000-000
Xxxxxxxxxxx, Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
Attn: Senior Vice President - Corporate Development
and
Xxxxx-Xxxxxxx Xxxxx International (Holdings), Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx Xxxxxxx, President
with copies to (which shall not constitute notice):
Xxxxxxx X. Xxxxxx
Vice President, Legal - Corporate Development
Xxxxx 000-000
Xxxxxxxxxxx, Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
and
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Xxx X. Xxxx
Xxxxx Xxxxx L.L.P.
Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Introgen:
Introgen Therapeutics, Inc.
000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxx
with a copies to (which shall not constitute notice):
Xxxxxx Xxxxxx, Esq.
Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (512) 338- 5499
Attn: Xxxxxxxxxxx X. Xxxxxx, Esq.
(g) Delays or Omissions; Waiver. Except as expressly provided in this
Voting Agreement, no delay or omission to exercise any right, power or
remedy accruing to any Party, upon any breach or default of this Voting
Agreement by another Party, shall impair any such right, power or remedy of
the non-breaching Party, nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any Party of any breach or
default under this Voting Agreement or any waiver on the part of any Party
of any provisions or conditions of this Voting Agreement must be in writing
and shall be effective only to the extent specifically set forth in such
writing.
(h) Counterparts. This Voting Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
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(i) Titles and Subtitles. The titles and subtitles used in this Voting
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Voting Agreement.
(j) Telecopy Execution and Delivery. A facsimile, telecopy or other
reproduction of this Voting Agreement may be executed by one or more
Parties, and an executed copy of this Voting Agreement may be delivered by
one or more Parties by facsimile or similar electronic transmission device
pursuant to which the signature of or on behalf of such Party can be seen,
and such execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any Party hereto, all Parties
shall execute an original of this Voting Agreement as well as any
facsimile, telecopy or other reproduction hereof.
(k) Severability. If any provision of this Voting Agreement should be
held invalid, illegal or unenforceable in any jurisdiction, all other
provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the Parties as nearly as may be possible. Such invalidity,
illegality or unenforceability shall not affect the validity, legality or
enforceability of such provision in any other jurisdiction.
(l) Further Assurances. Each of the Parties shall execute such
documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Voting
Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Voting Agreement as of
the date first written above.
Introgen Therapeutics, Inc.
By:
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Xxxxx X. Xxxxx
President and Chief Executive Officer
Aventis Pharmaceuticals Products Inc.
By:
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Name:
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Title:
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Xxxxx-Xxxxxxx Xxxxx International (Holdings), Inc.
By:
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Name:
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Title:
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