Exhibit 2
VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of
October __, 1999, between Millennium Pharmaceuticals, Inc., a Delaware
corporation ("PARENT"), and the undersigned stockholder ("STOCKHOLDER") of
LeukoSite, Inc., a Delaware corporation ("COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, Company
and Acquisition Sub., a Delaware corporation and a wholly owned subsidiary of
Parent ("ACQUISITION SUB"), have entered into an Agreement and Plan of Merger
(the "MERGER AGREEMENT") which provides for the merger (the "MERGER") of
Acquisition Sub with and into the Company. Pursuant to the Merger, shares of
capital stock of the Company will be converted into the right to receive Common
Stock of Parent on the basis described in the Merger Agreement.
B. The Stockholder is the record holder and beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT")) of such number of shares of the outstanding Common
Stock of the Company as is indicated on the final page of this Agreement (the
"SHARES").
C. Parent desires the Stockholder to agree, and the Stockholder is
willing to agree, not to transfer or otherwise dispose of any of the Shares, or
any other shares of capital stock of the Company acquired hereafter and prior to
the Expiration Date (as defined in Section 1.1 below, except as otherwise
permitted hereby), and to vote the Shares and any other such shares of capital
stock of the Company so as to facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. AGREEMENT TO RETAIN SHARES.
1.1 TRANSFER AND ENCUMBRANCE. Stockholder agrees not to transfer
(except as may be specifically required by court order), sell, exchange, pledge
or otherwise dispose of or encumber any of the Shares or any New Shares (as
defined in Section 1.2, below), or to make any offer or agreement relating
thereto, at any time prior to the Expiration Date. As used herein, the term
"Expiration Date" shall mean the earlier to occur of (i) such date and time as
the Merger shall become effective in accordance with the terms and provisions of
the Merger Agreement (provided that if Stockholder is a signatory to the
Company's Affiliate Agreement, nothing contained herein shall release such
Stockholder from any of its obligations set forth under such Affiliate
Agreement) and (ii) such date and time as the Merger Agreement shall be
terminated pursuant to Article VIII thereof.
1.2 ADDITIONAL PURCHASES. Stockholder agrees that any shares of
capital stock of the Company that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the execution of this
Agreement and prior to the Expiration Date ("New Shares") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. AGREEMENT TO VOTE SHARES. At every meeting of the stockholders of
the Company called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of the Company with respect to any of the following, Stockholder
shall vote the Shares and any New Shares in favor of approval of Merger
Agreement and the Merger and any matter that could reasonably be expected to
facilitate the Merger. Stockholder agrees not to take any actions contrary to
Stockholder's obligations under this Agreement.
3. IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, Stockholder agrees to deliver to Parent a proxy in the form attached
hereto as EXHIBIT A (the "Proxy"), which shall be irrevocable, with the total
number of shares of capital stock of the Company beneficially owned (as such
term is defined in Rule 13d-3 under the Exchange Act) by Stockholder and subject
to the Proxy set forth therein.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE STOCKHOLDER.
Stockholder hereby represents, warrants and covenants to Parent as follows:
4.1 OWNERSHIP OF SHARES. Stockholder (i) is the beneficial owner of
the Shares, which at the date hereof and at all times up until the Expiration
Date will be free and clear of any liens, claims, options, charges or other
encumbrances; (ii) does not beneficially own any shares of capital stock of the
Company other than the Shares; and (iii) has full power and authority to make,
enter into and carry out the terms of this Agreement and the Proxy.
4.2 NO PROXY SOLICITATIONS. Stockholder, in his or her capacity as a
Stockholder of the Company, will not, and will not permit any entity under
Stockholder's control to: (i) solicit proxies with respect to an approval of any
proposal made in opposition to or competition with consummation of the Merger or
any merger, consolidation, sale of assets, reorganization or recapitalization,
with any party other than with Parent and its affiliates or any other
liquidation or winding up of the Company (each of the foregoing is hereinafter
referred to as an "Opposing Proposal") or otherwise encourage or assist any
party in taking or planning any action that would compete with, restrain or
otherwise serve to interfere with or inhibit the timely consummation of the
Merger in accordance with the terms of the Merger Agreement; (ii) initiate a
stockholders' vote or action by consent of the Company stockholders with respect
to an Opposing Proposal; or (iii) become a member of a "group" (as such term is
used in Section 13(d) of the Exchange Act) with respect to any voting securities
of the Company with respect to an Opposing Proposal.
5. ADDITIONAL DOCUMENTS. Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent or Stockholder, as the case may be, to carry out
the intent of this Agreement.
6. CONSENT AND WAIVER. Stockholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreements to which Stockholder is a party as a stockholder or pursuant
to any rights Stockholder may have as a stockholder.
7. TERMINATION. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
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8. MISCELLANEOUS.
8.1 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
8.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other.
8.3 AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
8.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreement of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity.
8.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent by mail (registered or certified
mail, postage prepaid, return receipt requested) or overnight courier (prepaid)
to the respective parties as follows:
If to Parent: Millennium Pharmaceuticals, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
With a copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Stockholder: To the address for notice set forth on the
last page hereof.
with a copy to: Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
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or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
8.6 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware
without giving effect to the conflict of laws provision thereof.
8.7 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
8.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
8.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
8.10 FIDUCIARY DUTY AS DIRECTOR. The parties hereto acknowledge and
agree that the Stockholder's obligations hereunder are solely in his capacity as
a stockholder of the Company, and that none of the provisions herein set forth
shall be deemed to restrict or limit any fiduciary duty any of the undersigned
or any of his respective affiliates may have as a member of the Board of
Directors of the Company, as an executive officer of the Company, or otherwise
as a fiduciary to any person (other than any of the stockholders of the Company)
resulting from any circumstances other than as a stockholder of the Company;
provided that no such duty shall excuse the Stockholder from his obligations as
a stockholder of the Company to vote Shares or New Shares as herein provided and
to otherwise comply with the terms and conditions of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
MILLENNIUM PHARMACEUTICALS, INC.
By: __________________________________________
Name:
Title:
STOCKHOLDER:
By: __________________________________________
Print
Name: ________________________________________
Stockholder's Address for Notice:
______________________________________________
______________________________________________
______________________________________________
Shares beneficially owned:
_____________ shares of Common Stock
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of LeukoSite, Inc., a Delaware corporation
(the "COMPANY"), hereby irrevocably appoints Xxxxx Xxxxx and Xxxx Xxxxxxxxxx of
Millennium Pharmaceuticals, Inc., a Delaware corporation ("PARENT"), and each of
them, as the sole and exclusive attorneys and proxies of the undersigned, with
full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the shares of capital stock of the Company
beneficially owned by the undersigned, which shares are listed on the final page
of this Proxy (the "Shares"), and any and all other shares or securities issued
or issuable in respect thereof on or after the date hereof, until such time as
that certain Agreement of Merger and Plan of Merger dated as of October __, 1999
(the "MERGER AGREEMENT"), among Parent, Acquisition Sub., a Delaware corporation
and a wholly owned subsidiary of Parent ("ACQUISITION SUB"), and Company, shall
be terminated in accordance with its terms or the Merger (as defined in the
Merger Agreement) is effective, whichever first occurs. Upon the execution
hereof, all prior proxies given by the undersigned with respect to the Shares
and any and all other shares or securities issued or issuable in respect thereof
on or after the date hereof are hereby revoked and no subsequent proxies will be
given.
This proxy is irrevocable, is granted pursuant to the Voting Agreement
dated as of October __, 1999 between Parent and the undersigned stockholder (the
"VOTING AGREEMENT"), and is granted in consideration of Parent entering into the
Merger Agreement. The attorneys and proxies named above will be empowered at any
time prior to termination of the Merger Agreement to exercise all voting and
other rights (including, without limitation, the power to execute and deliver
written consents with respect to the Shares) of the undersigned at every annual,
special or adjourned meeting of Company stockholders, and in every written
consent in lieu of such a meeting, or otherwise, in favor of approval of the
Merger and the Merger Agreement and any matter that could reasonably be expected
to facilitate the Merger.
The attorneys and proxies named above may only exercise this proxy to
vote the Shares subject hereto at any time prior to termination of the Merger
Agreement at every annual, special or adjourned meeting of the stockholders of
Company and in every written consent in lieu of such meeting, in favor of
approval of the Merger and the Merger Agreement and any matter that could
reasonably be expected to facilitate the Merger, and may not exercise this proxy
on any other matter. The undersigned stockholder may vote the Shares on all
other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable.
Dated: October __, 1999
Signature of Stockholder: ________________________________________________
Print Name of Stockholder: _______________________________________________
Shares beneficially owned:
__________ shares of Common Stock
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