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EXHIBIT A
ANERGEN, INC.
VOTING AGREEMENT
This Voting Agreement (this "Voting Agreement") is made and entered into as
of December 11, 1998, by and between Corixa Corporation, a Delaware corporation
("Acquiror"), and the undersigned stockholder ("Holder") of Anergen, Inc., a
Delaware corporation ("Target").
RECITALS
Pursuant to an Agreement and Plan of Reorganization dated as of December
11, 1998 (the "Reorganization Agreement") by and among Acquiror, Yakima
Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of
Acquiror ("Sub"), and Target, Sub is merging with and into Target (the
"Acquisition") and Target, as the surviving corporation of the Acquisition, will
thereby become a wholly-owned subsidiary of Acquiror. Pursuant to Section 6.2(f)
of the Reorganization Agreement, Target has agreed to cause certain significant
stockholders of Target to execute and deliver to Acquiror voting agreements in
the form hereof. The Holder 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 and all rights, warrants
and options to acquire shares of capital stock of Target as is indicated on the
final page of this Voting Agreement (the "Shares").
In consideration of the execution of the Reorganization Agreement by
Acquiror, Holder agrees not to transfer or otherwise dispose of any of the
Shares, or any other shares of capital stock of Target acquired by Holder
hereafter and prior to the Expiration Date (as defined in Section 1(a) below),
and agrees to vote the Shares and any other such shares of capital stock of
Target in favor of and so as to facilitate consummation of the Acquisition.
AGREEMENT
The parties agree as follows:
1. Agreement to Retain Shares.
(a) Transfer and Encumbrance. Holder agrees not to transfer (except as may
be specifically required by court order), sell, exchange, pledge (except in
connection with a bona fide loan transaction, provided that any pledgee agrees
not to transfer, sell, exchange, pledge or otherwise dispose of or encumber the
Shares or any New Shares (as defined in Section 1(b)) prior to the Expiration
Date and also agrees to be subject to the Proxy (as defined in Section 3)), or
otherwise dispose of or encumber the Shares or any New Shares, 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 Acquisition shall become effective in accordance
with the terms and provisions of the Reorganization Agreement, and (ii) upon the
termination of the Reorganization Agreement pursuant to its terms.
(b) New Shares. Until the Expiration Date, Holder agrees that any shares of
capital stock of Target that Holder purchases or with respect to which Holder
otherwise acquires beneficial ownership after the date of this Voting Agreement
and prior to the Expiration
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Date ("New Shares") shall be subject to the terms and conditions of this Voting
Agreement to the same extent as if they constituted Shares.
(c) Superior Offer. In the event that (A) Target's board of directors
approves, and recommends that Target's stockholders approve, a Superior Offer
(as defined in the Reorganization Agreement), (B) Target's board of directors
provides written notice of such approval and recommendation to Acquiror and (C)
Target has paid in full Acqurior the Termination Fee (as defined in the
Reorganization Agreement), Holder's obligations under this Voting Agreement
shall immediately terminate.
2. Agreement to Vote Shares. Until the Expiration Date, at every meeting of
the stockholders of Target 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 Target with respect to any of the following, Holder shall
vote the Shares and any New Shares (a) in favor of approval of the
Reorganization Agreement and the Acquisition and any matter that could
reasonably be expected to facilitate the Acquisition, and (b) against any
proposal for any recapitalization, merger, sale of assets or other business
combination (other than the Acquisition) between Target and any person or entity
other than Acquiror or any other action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of Target under the Reorganization Agreement or which could result in
any of the conditions to Target's obligations under the Reorganization Agreement
not being fulfilled. This Voting Agreement is intended to bind Holder as a
stockholder of Target only with respect to the specific matters set forth
herein.
3. Irrevocable Proxy. Until the Expiration Date, concurrently with the
execution of this Voting Agreement, Holder agrees to deliver to Acquiror a proxy
in the form attached hereto as Exhibit A (the "Proxy"), which shall be
irrevocable (until the Expiration Date) to the extent provided in Section 212 of
the Delaware General Corporation Law, covering the total number of Shares and
New Shares beneficially owned or as to which beneficial ownership is acquired
(as such term is defined in Rule 13d-3 under the Exchange Act) by Holder set
forth therein.
4. Representations, Warranties and Covenants of Holder. Holder hereby
represents, warrants and covenants to Acquiror that Holder (a) is the beneficial
owner of the Shares, which at the date of this Voting Agreement and at all times
up until the Expiration Date will be free and clear of any liens, claims,
options, charges or other encumbrances, (b) does not beneficially own any shares
of capital stock of Target other than the Shares (excluding shares as to which
Holder currently disclaims beneficial ownership in accordance with applicable
law) and (c) has full power and authority to make, enter into and carry out the
terms of this Voting Agreement and the Proxy.
5. Additional Documents. Holder hereby covenants and agrees to execute and
deliver any additional documents necessary or desirable, in the reasonable
opinion of Acquiror, to carry out the purpose and intent of this Voting
Agreement.
6. Consent and Waiver. Holder hereby gives any consents or waivers that are
reasonably required for the consummation of the Acquisition under the terms of
any agreement to which Holder is a party or pursuant to any rights Holder may
have.
7. Termination. This Voting 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.
(a) Amendments and Waivers. Any term of this Voting Agreement may be
amended or waived with the written consent of the parties or their respective
successors and assigns. Any amendment or waiver effected in accordance with this
Section 8(a) shall be binding upon the parties and their respective successors
and assigns.
(b) Governing Law. This Voting Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
Delaware, without giving effect to principles of conflicts of law.
(c) 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 instrument.
(d) 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.
(e) Notices. Any notice required or permitted by this Voting Agreement
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such
notice is addressed to the party to be notified at such party's address or
facsimile number as set forth on the final page of this Voting Agreement, or as
subsequently modified by written notice.
(f) Severability. If one or more provisions of this Voting Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith, in order to maintain the economic position enjoyed
by each party as close as possible to that under the provision rendered
unenforceable. In the event that the parties cannot reach a mutually agreeable
and enforceable replacement for such provision, then (i) such provision shall be
excluded from this Voting Agreement, (ii) the balance of this Voting Agreement
shall be interpreted as if such provision were so excluded and (iii) the balance
of this Voting Agreement shall be enforceable in accordance with its terms.
(g) Attorneys' Fees. Should suit be brought to enforce or interpret any
part of this Voting Agreement, the prevailing party will be entitled to recover,
as an element of the costs of suit and not as damages, reasonable attorneys'
fees to be fixed by the court (including without limitation, costs, expenses and
fees on any appeal). The prevailing party will be entitled to recover its costs
of suit proceeds to final judgment.
(h) Specific Performance; Injunctive Relief. The parties hereto acknowledge
and agree that Acquiror will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, the parties acknowledge and agree that,
in addition to any other remedies that may be available to Acquiror upon any
such violation, Acquiror shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to Acquiror at law or in equity.
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The parties have caused this Voting Agreement to be duly executed on the
date first above written.
"ACQUIROR"
CORIXA CORPORATION,
a Delaware corporation
By:
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Name:
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(print)
Title:
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Address:
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Facsimile:
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"HOLDER"
By:
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Name:
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(print)
Title:
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Holder's Address for Notice:
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Facsimile:
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Shares beneficially owned:
shares of Common Stock
of Anergen, Inc.
shares of Common Stock
of Anergen, Inc.
issuable upon exercise
of outstanding options
and warrants
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EXHIBIT A
IRREVOCABLE PROXY
TO VOTE STOCK OF
ANERGEN, INC.
Subject to the terms of that certain Voting Agreement, dated as of December
11, 1998, by and between Acquiror (as defined below) and Stockholder (as defined
below), (the "Voting Agreement") the undersigned stockholder ("Stockholder") of
Anergen, Inc., a Delaware corporation ("Target"), hereby irrevocably (to the
full extent permitted by Section 212 of the Delaware General Corporation Law)
appoints the members of the board of directors of Corixa Corporation, a Delaware
corporation ("Acquiror"), and each of them, as the sole and exclusive attorneys
and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of Target that now are or hereafter may be beneficially
owned by the undersigned, and any and all other shares or securities of Target
issued or issuable in respect thereof on or after the date hereof (collectively,
the "Shares") in accordance with the terms of this Proxy. The Shares
beneficially owned by the undersigned stockholder of Target as of the date of
this Proxy are listed on the final page of this Proxy. Upon the undersigned's
execution of this Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant
any subsequent proxies with respect to the Shares until after the earlier to
occur of (i) the Expiration Date (as defined below) and (ii) Superior Offer
Event (as defined below).
This Proxy is irrevocable (to the extent permitted by Section 212 of the
Delaware General Corporation Law) is granted pursuant to that certain Voting
Agreement of even date herewith, by and among Acquiror and the undersigned
stockholder (the "Voting Agreement"), and is granted in consideration of
Acquiror entering into that certain Agreement and Plan of Reorganization, of
even date herewith, by and among Target, Acquiror and Yakima Acquisition
Corporation, a Delaware corporation ("Sub") and wholly-owned subsidiary of
Acquiror (the "Reorganization Agreement"). The Agreement provides for the merger
of Sub with and into Target (the "Acquisition"). As used herein, the term
"Expiration Date" shall mean the earlier to occur of (i) such date and time as
the Acquisition shall become effective in accordance with the terms and
provisions of the Reorganization Agreement and (ii) upon termination of the
Reorganization Agreement pursuant to its terms. As used herein, the term
"Superior Offer Event" shall mean the determination of Target's board of
directors to accept an unsolicited, bona fide written offer made by a third
party to consummate any of the following transactions: (1) a merger,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving Target's pursuant to which the stockholders of
Target immediately preceding such transaction hold less than fifty percent (50%)
of the equity interest in the surviving or resulting entity of such transaction,
(2) a sale or other disposition by Target of assets (excluding inventory and
used equipment sold in the ordinary course of business) representing in excess
of fifty percent (50%) of the fair market value of Target's business immediately
prior to such sale, (3) the acquisition by any person or group (including by way
of a tender offer or an exchange offer or issuance by Target), directly or
indirectly, of beneficial ownership or a right to acquire beneficial ownership
of shares representing in excess of fifty percent (50%) of the voting power of
the then-outstanding shares of capital stock of the Target or (4) any public
announcement of a proposal, plan or intention to do any of the foregoing or any
agreement to engage in any of the foregoing, on terms that Target's board of
directors determines, in its judgment consistent with applicable corporate
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law, after consultation with its financial advisor, is reasonably likely to be
financially superior to the Target stockholders than the terms of the Merger.
Subject to the terms of the Voting Agreement, the attorneys and proxies
named above, and each of them, are hereby authorized and empowered by the
undersigned, at any time prior to the Expiration Date, to act as the
undersigned's attorney and proxy to vote the Shares, and to exercise all voting
and other rights of the undersigned with respect to the Shares (including,
without limitation, the power to execute and deliver written consents pursuant
to Section 228 of the Delaware General Corporation Law), at every annual,
special or adjourned meeting of the stockholders of Target and in every written
consent in lieu of such meeting (i) in favor of approval of the Acquisition and
the Merger Agreement and in favor of any matter that could reasonably be
expected to facilitate the Acquisition, and (ii) against any proposal for any
recapitalization, merger, sale of assets or other business combination (other
than the Acquisition) between Target and any person or entity other than
Acquiror or any other action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
Target under the Merger Agreement or which could result in any of the conditions
to Target's obligations under the Merger Agreement not being fulfilled. The
attorneys and proxies named above may not exercise this Proxy on any other
matter except as provided above. 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 (to the extent provided in Section 212 of the
Delaware General Corporation Law) subject to the limitations set forth in the
Voting Agreement.
Dated: December 11, 1998
(Signature of Holder)
(Print Name of Holder)
Shares beneficially owned:
Shares of Common Stock of
Anergen Inc. owned by Holder
as of the date of this
Voting Agreement
Shares of Common Stock of
Anergen, Inc. issuable upon
exercise or conversion of
outstanding options,
warrants or other securities
owned by Holder as of the
date of this Voting
Agreement
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