EXHIBIT 1
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of April 21, 2005, is
among Shire Pharmaceuticals Group plc, a public limited company incorporated
under the laws of England and Wales ("Parent"), Warburg, Xxxxxx Equity Partners,
L.P., a Delaware limited partnership ("WPEP"), Warburg, Xxxxxx Netherlands
Equity Partners I, C.V., a Netherlands Commanditaire Vennootschap ("WPNEP I"),
Warburg, Xxxxxx Netherlands Equity Partners III, C.V., a Netherlands
Commanditaire Vennootschap ("WPNEP III" and together with WPNEP I, collectively
the "Netherlands Entities"), and Warburg Pincus & Co., a New York general
partnership ("WP&Co.", WPEP and each of the Netherlands Entities are each
referred to herein as a "Stockholder" and collectively as the "Stockholders").
WHEREAS, in order to induce Parent to enter into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), with Transkaryotic
Therapies, Inc., a Delaware corporation (the "Company"), and Sparta Acquisition
Corporation, a Delaware corporation, Parent has requested the Stockholders, and
the Stockholders have agreed, to enter into this Agreement with respect to all
shares of common stock, par value $0.01 per share, of the Company that the
Stockholders beneficially own (the "Shares").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
GRANT OF PROXY; VOTING AGREEMENT
Section 1.01. Voting Agreement. Each Stockholder hereby agrees to vote all
Shares that Stockholder is entitled to vote at the time of any vote or action by
written consent to adopt the Merger Agreement and any actions related thereto at
any meeting of the stockholders of the Company, and at any adjournment thereof,
at which such Merger Agreement (or any amended version thereof), or such other
actions, are submitted for the consideration and vote of the stockholders of the
Company. Each Stockholder hereby agrees that it will not vote any Shares in
favor of, or consent to, and will vote against and not consent to, the approval
of any (i) Acquisition Proposal, (ii) reorganization, recapitalization,
liquidation or winding-up of the Company or any other extraordinary transaction
involving the Company, (iii) corporate action the consummation of which would
prevent or delay the consummation of the transactions contemplated by the Merger
Agreement or (iv) other matter relating to, or in connection with, any of the
foregoing matters.
Section 1.02. Irrevocable Proxy. Each Stockholder hereby revokes any and
all previous proxies granted with respect to the Shares. By entering into this
Agreement, each Stockholder hereby grants a proxy appointing Parent as such
Stockholder's attorney-in-fact and proxy, with full power of substitution, for
and in such Stockholder's name, to vote, express, consent or dissent, or
otherwise to utilize such voting power in the manner contemplated by Section
1.01. The proxy granted by each Stockholder pursuant to this ARTICLE 1 is
irrevocable and is granted in consideration of Parent entering into this
Agreement and the Merger Agreement and incurring certain related fees and
expenses. The proxy granted by each Stockholder shall be automatically revoked
upon termination of this Agreement in accordance with its terms.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder represents and warrants to Parent that:
Section 2.01. Authorization. The execution, delivery and performance by
Stockholder of this Agreement and the consummation by Stockholder of the
transactions contemplated hereby are within the powers of Stockholder and have
been duly authorized by all necessary action. This Agreement constitutes a valid
and binding agreement of Stockholder.
Section 2.02. Non-Contravention. The execution, delivery and performance by
Stockholder of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) violate the partnership or limited
partnership agreement of Stockholder, as applicable, (ii) assuming the filing of
such reports as may be required under Sections 13(d) and 16 of the Securities
Exchange Act of 1934, as amended (which reports each Stockholder agrees and
covenants will be filed within the periods required by, and otherwise in
compliance with, applicable law), violate any applicable law, rule, regulation,
judgment, injunction, order or decree, (iii) require any consent or other action
by any Person under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration or to a loss of any benefit to which
Stockholder is entitled under any provision of any agreement or other instrument
binding on Stockholder or (iv) result in the imposition of any Lien on any asset
of Stockholder.
Section 2.03. Ownership of Shares. Stockholder is the record and beneficial
owner of the Shares set forth under its name on the signature page hereto, free
and clear of any Lien and any other limitation or restriction (including any
restriction on the right to vote or otherwise dispose of the Shares). None of
the Shares is subject to any voting trust or other agreement or arrangement with
respect to the voting of such Shares.
Section 2.04. Total Shares. Except for the Shares set forth on the
signature page hereto, Stockholder does not beneficially own any (i) shares of
capital stock or voting securities of the Company, (ii) securities of the
Company convertible into or exchangeable for shares of capital stock or voting
securities of the Company or (iii) options or other rights to acquire from the
Company any capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of the Company.
Section 2.05. Finder's Fees. No investment banker, broker, finder or other
intermediary is entitled to a fee or commission from Parent or the Company in
respect of this Agreement based upon any arrangement or agreement made by or on
behalf of Stockholder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Stockholders that:
Section 3.01. Authorization. The execution, delivery and performance by
Parent of this Agreement and the consummation by Parent of the transactions
contemplated hereby are within the corporate powers of Parent and have been duly
authorized by all necessary corporate action. This Agreement constitutes a valid
and binding agreement of Parent.
-2-
ARTICLE 4
COVENANTS OF THE STOCKHOLDERS
Each Stockholder hereby covenants and agrees that:
Section 4.01. No Proxies for or Encumbrances on Shares. Except pursuant to
the terms of this Agreement, Stockholder shall not, without the prior written
consent of Parent, directly or indirectly, (i) grant any proxies or enter into
any voting trust or other agreement or arrangement with respect to the voting of
any Shares or (ii) sell, assign, transfer, encumber or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to the direct or indirect sale, assignment, transfer, encumbrance or
other disposition of, any Shares during the term of this Agreement. Stockholder
shall not seek or solicit any such sale, assignment, transfer, encumbrance or
other disposition or any such contract, option or other arrangement or
understanding and agrees to notify Parent promptly, and to provide all details
requested by Parent, if Stockholder shall be approached or solicited, directly
or indirectly, by any Person with respect to any of the foregoing.
Section 4.02. Other Offers. Subject to Section 5.12 herein, each
Stockholder and its affiliates shall not, and shall use their reasonable best
efforts to cause their officers, directors, employees or other agents not to,
directly or indirectly, (i) take any action to solicit or initiate any
Acquisition Proposal or (ii) engage in negotiations with, or disclose any
nonpublic information relating to the Company or any of its Subsidiaries or
afford access to the properties, books or records of the Company or any of its
Subsidiaries to, any Person that may be considering making, or has made, an
Acquisition Proposal or has agreed to endorse an Acquisition Proposal. Subject
to Section 5.12 herein, Stockholder will promptly notify Parent after receipt of
an Acquisition Proposal or any request for nonpublic information relating to the
Company or any of its Subsidiaries or for access to the properties, books or
records of the Company or any of its Subsidiaries by any Person that has made,
or to Stockholder's knowledge is intending to make, an Acquisition Proposal and
will keep Parent informed, on a current basis, of the status and details of any
such Acquisition Proposal or request.
Section 4.03. Appraisal Rights. Stockholder agrees not to exercise any
rights (including, without limitation, under Section 262 of the General
Corporation Law of the State of Delaware) to demand appraisal of any Shares
which may arise with respect to the Merger.
ARTICLE 5
MISCELLANEOUS
Section 5.01. Definitional and Interpretative Provisions. The words
"hereof", "herein" and "hereunder" and words of like import used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof. Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation", whether or not they are in fact
followed by those words or words of like import. "Writing", "written" and
comparable terms refer to printing, typing and other means of reproducing words
-3-
(including electronic media) in a visible form. References to any agreement or
contract are to that agreement or contract as amended, modified or supplemented
from time to time in accordance with the terms hereof and thereof. References to
any Person include the successors and permitted assigns of that Person.
Section 5.02. Further Assurances. Parent and the Stockholders will each
execute and deliver, or cause to be executed and delivered, all further
documents and instruments reasonably requested by Parent or the Stockholders, as
applicable, and use their reasonable best 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.
Section 5.03. Amendments; Termination. Any provision of this Agreement may
be amended or waived if, but only if, such amendment or waiver is in writing and
is signed, in the case of an amendment, by each party to this Agreement or in
the case of a waiver, by the party against whom the waiver is to be effective.
This Agreement shall automatically terminate on the earlier to occur of (i) the
Effective Time and (ii) the termination of the Merger Agreement.
Section 5.04. Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
Section 5.05. Successors and Assigns; Obligations of Stockholders. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided that no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other parties
hereto, except that Parent may transfer or assign its rights and obligations to
any Affiliate of Parent.
Section 5.06. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware.
Section 5.07. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by the other party. Until and unless each party has
received a counterpart hereof signed by the other party hereto, this Agreement
shall have no effect and no party shall have any right or obligation hereunder
(whether by virtue of any other oral or written agreement or other
communication).
Section 5.08. Severability. If any term, provision or covenant of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions and
covenants of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
Section 5.09. Specific Performance. The parties hereto agree that Parent
would suffer irreparable damage in the event any provision of this Agreement is
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof in addition to any other
remedy to which they are entitled at law or in equity.
-4-
Section 5.10. Capitalized Terms. Capitalized terms used but not defined
herein shall have the respective meanings set forth in the Merger Agreement.
Section 5.11. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given, if to Parent, as set forth in the Merger Agreement, and if to
the Stockholders, to:
Warburg, Xxxxxx Equity Partners, X.X.
Xxxxxxx, Xxxxxx Netherlands Equity Partners I, X.X.
Xxxxxxx, Xxxxxx Netherlands Equity Partners III, X.X.
Xxxxxxx Xxxxxx & Co.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxx
Facsimile No.: (000) 000-0000
With a copy to (which shall not constitute notice):
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or to such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. on a Business
Day in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed to have been received on the next succeeding
Business Day in the place of receipt
Section 5.12. Stockholder Capacity. Each Stockholder signs this Agreement
solely in its capacity as the beneficial owner of the Shares set forth under its
name on the signature page hereto, and nothing in this Agreement, including,
without limitation, Section 4.02, shall prevent or in any way limit any
officers, directors, employees or other agents of each Stockholder from taking
any action in his or her capacity as a director or officer of the Company,
including, without limitation, those actions permitted by Section 6.03 of the
Merger Agreement.
-5-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SHIRE PHARMACEUTICALS GROUP PLC
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
WARBURG, XXXXXX EQUITY PARTNERS, L.P.
By: Warburg Pincus Partners LLC,
its General Partner
By: Warburg Pincus & Co.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Partner
Number and Class of Shares Owned:
4,999,729 shares of common stock
WARBURG PINCUS & CO.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Partner
Number and Class of Shares Owned:
38,667 shares of common stock
WARBURG, XXXXXX NETHERLANDS EQUITY
PARTNERS I, C.V.
By: Warburg Pincus Partners LLC,
its General Partner
By: Warburg Pincus & Co.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Partner
Number and Class of Shares Owned:
Shares of common stock included in
4,999,729 shares indicated above as
owned by Warburg, Xxxxxx Equity
Partners, X.X.
XXXXXXX, XXXXXX NETHERLANDS EQUITY
PARTNERS III, C.V.
By: Warburg Pincus Partners LLC,
its General Partner
By: Warburg Pincus & Co.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Partner
Number and Class of Shares Owned:
Shares of common stock included in
4,999,729 shares indicated above as
owned by Warburg, Xxxxxx Equity
Partners, L.P.
