EXHIBIT 9.3
SHARE TRANSFER AND VOTING AGREEMENT
THIS SHARE TRANSFER AND VOTING AGREEMENT (this "Agreement") is made as
of January 2, 2001, by and between Warburg, Xxxxxx Equity Partners, L.P.
("WPEP") and Mount Everest Advisors, L.L.C. ("Mount Everest") and acknowledged
by ZymoGenetics, Inc., a Washington Corporation (the "Company"). Capitalized
terms used in this Agreement and not defined herein shall have the same meanings
as set forth in the Series B Preferred Stock Purchase Agreement dated as of
October 20, 2000 (the "Purchase Agreement"), the Shareholders' Agreement dated
as of November 10, 2000 (the "Shareholders' Agreement") and the Series B Co-Sale
Agreement dated as of November 10, 2000 (the "Co-Sale Agreement").
RECITALS
Whereas, WPEP is transferring 6,000 Shares to Mount Everest; and
Whereas, to induce WPEP to transfer 6,000 Shares to Mount Everest,
Mount Everest has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of mutual promises and covenants set
herein;
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Closing
1.1 The transfer of 6,000 Shares shall take place at the offices
of Warburg PincDs Xxxxxx & Co., 000 Xxxxxxxxx Xxxxxx, 10/th/ Floor, New York,
New York, on the date hereof, with WPEP hereby delivering to the Company a Share
certificate that has 6,000 Shares duly endorsed for transfer to Mount Everest in
consideration for services performed by Mount Everest for WPEP. The Company
shall record such transfer on its share register and promptly issue and deliver
in exchange (and cancellation) of such Share certificate two new Share
certificates: the first, representing 6,000 Shares, issued to Mount Everest
having a legend (in addition to any other legends) indicating that such shares
are subject to this Agreement, and the second, issued to WPEP representing 6,000
fewer Shares than the original certificate submitted for exchange.
2. Endorsement of Agreements
2.1 Mount Everest hereby agrees to the terms and conditions of
the Shareholders' Agreement and the Co-Sale Agreement originally entered into by
and among the Company and the other parties listed on the signature pages
thereto and acknowledges receipt of a copy of such Shareholders' Agreement and
Co-Sale Agreement and agrees to be bound thereunder.
2.2 Mount Everest hereby makes all representations and
warranties of the investors contained m Section 3 of the Purchase Agreement.
2.3 Mount Everest hereby represents and warrants that it is not
a company whose primary business, or a substantial portion of whose business,
directly or indirectly,
consists of the research, development, manufacture, marketing, licensing,
distribution and/or sale of pharmaceutical and/or biotechnology products.
3. Voting of Shares
3.1 At all times prior to the consummation of a Qualified
Public Offering, pursuant to the provisions of RCW23B.07.3 10 of the Washington
Business Corporation Act, Mount Everest hereby grants WPEP the right to vote,
through WPEP's designated agent appointed at the sole discretion of WPEP, all
Shares of the Company owned by Mount Everest at all meetings of the shareholders
of the Company, to cause such Shares to be counted as present at any such
meetings for purposes of establishing a quorum and to exercise all consensual or
other voting rights with respect to the Shares, in each case in such manner as
WPEP, in its sole discretion, shall determine. Mount Everest hereby acknowledges
that the foregoing grant of rights is coupled with an interest and is thus
irrevocable.
3.2 In furtherance of the foregoing agreement, Mount Everest
shall, simultaneously with the transfer of the Shares, execute an irrevocable
proxy, substantially in the form attached hereto as Exhibit A, pursuant to the
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provisions of RCW 23B.07.220 of the Washington Business Corporation Act, in
favor of WPEP or its designee, permitting WPEP or its designee to vote all
Shares owned by Mount Everest, and Mount Everest shall deliver such proxy to
WPEP.
3.3 A counterpart hereof shall be deposited with the Company at
its principal office and shall be subject to the same rights of examination by a
shareholder of the Company, in person or by agent or attorney, as are the books
and records of the Company. Mount Everest covenants and agrees, and the Company
acknowledges, that each certificate representing shares owned by it shall
contain a statement that the shares represented by the certificate are subject
to the provisions of a voting agreement, a counterpart of which has been
deposited with the Commas at its principal office.
4. Transfer of Stock
4.1 Mount Everest shall not sell, assign, pledge, hypothecate,
or otherwise dispose or encumber ("Transfer") any Shares other than in
accordance with the provisions of this Section 4, provided, however, that Mount
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Everest may Transfer Shares to an Affiliate thereof. Any Transfer or purported
Transfer made in violation of this Section 4 shall be null and void and of no
effect.
4.2 Except as provided in Section 4.3, Mount Everest shall not
Transfer any of the Shares owned by it for a period of one year from the date
hereof and thereafter only if Mpount Everest shall have first made an offer to
sell to WPEP, and such offer shall not have been accepted within twenty (20)
days after the receipt of such offer.
4.3 (i) If at any time after the date of this Agreement and
prior to the consummation of a Qualified Public Offering, WPEP wishes to
Transfer in a bona Oft fide armsy' length sale all of their Shares to any
individual, partnership, joint-stock company, c a corporation limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof who is not an Affiliate of WPEP (for the purposes
of this Section
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4.3, the "Proposed Transferee"), WPEP shall have the right (for purposes of
this Section 4.3, the "Drag-Along Right") to require Mount Everest to sell to
the Proposed Transferee all of its Shares for the same per share consideration
as proposed to be received by WPEP. Mount Everest agrees to take all steps
necessary to enable it to comply with the provisions of this Section 4.3 to
facilitate WPEP's exercise of a Drag-Along Right.
(ii) To exercise a Drag-Along Right, WPEP shall give Mount
Everest a written notice (for purposes of this Section 4.3, a "Drag-Along
Notice") containing (1 ) the name and address of the Proposed Transferee and
(2) the proposed purchase price, terms of payment and other material terms and
conditions of the Proposed Transferee's offer. Mount Everest shall thereafter be
obligated to sell its Shares, provided that the sale to the Proposed Transferee
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is consummated within ninety (90) days of delivery of the Drag-Along Notice. If
the sale is not consummated within such 90-day period, then Mount Everest shall
no longer be obligated to sell such Mount Everest's Shares pursuant to that
specific Drag-Along Right but shall remain subject to the provisions of this
Section 4.3.
5. Conversion of Series B Stock
5.1 Mount Everest hereby agrees to make an election to convert
its shares of Series B Stock into Voting Common Stock at any time that WPEP
makes an election to so convert WPEP's shares of Series B Stock into Voting
Common Stock pursuant to Section 2.4.4.2 of the Restated Articles.
6. Miscellaneous
6.1 Specific Enforcement
Mount Everest expressly agrees that WPEP will be irreparably
damaged if this Agreement is not specifically enforced. Upon a breach or
threatened breach of the terms, covenants and/or conditions of this Agreement by
Mount Everest, WPEP shall, in addition to all other remedies, be entitled to a
temporary or permanent injunction, without showing any actual damage, and/or a
decree for specific performance, in accordance with, and so as to effectuate,s
the provisions of this Agreement. In the event that a bond is required to be
posted in connection with the specific enforcement of this Agreement, the
parties agree that a reasonable amount of such bond is $1,000.
6.2 Notices
Unless otherwise provided, any notice under this Agreement shall
be given in writing and shall be deemed effective: (a) upon personal delivery to
the party to be notified; (b) upon confirmation of receipt by fax by the party
to be notified; (c) one business day after deposit with a nationally-recognized
overnight courier, prepaid for overnight delivery and addressed as set forth in
(d); or (d) five (5) days after deposit with the U.S. Post Office, postage
prepaid, registered or certified with return receipt requested and addressed to
the party to be notified at the address indicated for such party on the
signature page, or at such other address as such party may designate by 10 days'
advance written notice to the other parties given in the foregoing manner.
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6.3 Termination, Amendments and Waivers
This Agreement may be terminated, and any term of this Agreement
may be amended and the observance of any term may be waived (either generally or
in a particular instance and either retroactively or prospectively), only upon
the written consent of WPEP.
6.4 Governing Law; Jurisdiction; Venue
This Agreement shall be governed by and construed under the laws
of the State of Washington without regard to principles of conflict of laws. The
parties irrevocably consent to the jurisdiction and venue of the state and
federal courts located in King County, Washington in connection with any action
relating to this Agreement.
6.5 Successors and Assigns; Transfers
The terms and conditions of this Agreement shall inure to the
benefit of and be binding on the respective heirs, personal representatives,
successors and assigns of He the parties.
6.6 Severability
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, sum such provision shall be excluded from
this Agreement, and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
6.7 Entire Agreement; Counterparts
This Agreement constitutes the entire agreement between the
parties about its subject and supersedes all prior agreements. This Agreement
may be executed in two or more counterparts, which together shall constitute one
instrument.
6.8 Authorization
Each party represents that this Agreement has been duly
authorized, executed and delivered by such party and constitutes a valid and
binding obligation of such party, enforceable against such party in accordance
with its terms.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Warburg, Xxxxxx Equity Partners, L.P.
By: Warburg, Xxxxxx & Co.,
its General Partner
By: /S/ XXXXXXXX XXXX
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Name: Xxxxxxxx Xxxx
Title: Partner
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Mount Everest Advisors, L.L.C.
By: /S/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
President
000 Xxxxx Xxxxxx
0/xx/ Xxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Acknowledged By:
ZymoGenetics, Inc.
By: /s/ XXXXX X.X. XXXXXX
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Name:
Title:
0000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
EXHIBIT A
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IRREVOCABLE PROXY
TO VOTE STOCK OF COMPANY
The undersigned shareholder of ZymoGenetics, Inc., a Washington corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by the
Washington Business Corporation Act) appoints Xxxxxxxx Xxxx, or any other
designee of Warburg, Xxxxxx Equity Partners, L.P. ("WPEP"), as the sole and
exclusive attorney and proxy of the undersigned, until the consummation of a
Qualified Public Offering (as such term is defined in Section 2.2.2 of the
Company's Amended and Restated Articles of Incorporation) with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the fullest extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof, or in
substitution or exchange thereof, on or after the date hereof (collectively, the
"Shares") in accordance with the terms of this Irrevocable Proxy. The Shares
beneficially owned by the undersigned shareholder of the Company as of the date
of this Irrevocable Proxy are listed on the final page of this Irrevocable
Proxy. Upon the undersigned's execution of this Irrevocable 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.
This Irrevocable Proxy is irrevocable (to the fullest extent provided in
and allowed by the Washington Business Corporation Act), is coupled with an
interest and is granted in consideration of WPEP entering into that certain
Share Transfer and Voting Agreement dated January 2, 2001, between WPEP and the
undersigned and acknowledged by the Company.
The attorney and proxy named or designated above is hereby authorized and
empowered by the undersigned, at any time during the term of this proxy, 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 the Washington Business Corporation Act) on all matters at
every annual, special or adjourned meeting of the shareholders of the Company
and in every written consent in lieu of such meeting.
All authority herein conferred shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: March 6, 2001
Mount Everest Advisors, LLC
By: /S/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
President
Shares beneficially owned:
6,000 shares of Company Common Stock
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