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EXHIBIT 10.20
VOTING AGREEMENT
This VOTING AGREEMENT, which supplements that certain Second Amended
and Restated Voting and Co-Sale Agreement, dated as of February 9, 1995 (the
"Series D Voting Agreement"), is dated as of June 28, 1996, among ChemGenics
Pharmaceuticals Inc., a Delaware corporation (the "Company"), PerSeptive
BioSystems, Inc., a Delaware corporation ("PerSeptive"), and Technology Leaders
L.P., Technology Leaders Offshore C.V., Bessemer Venture Partners III L.P.,
Xxxxxx Xxxxxxx Fund II, Gilde Investment Fund B.V., Comdisco, Inc., Pfizer,
Inc., and Xxxxx Xxxxxxxxx, Ph.D. (collectively, the "Principal Shareholders").
WHEREAS the Company is issuing up to 9,792,679 shares of its Common
Stock, $.001 par value ("Common Stock") to PerSeptive pursuant to a Master
Agreement between the Company and PerSeptive dated as of May 7, 1996 (the
"Master Agreement") in exchange for the Drug Discovery Program (as such term is
defined in the Master Agreement) of PerSeptive and other consideration;
WHEREAS the Series D Voting Agreement provides for, among other things,
the election of members to the Company's Board of Directors (the "Board of
Directors"); and
WHEREAS one of the conditions to the consummation of the transactions
contemplated by the Master Agreement is the execution and delivery of this
Voting Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and the purchase of the Common Stock by PerSeptive under the
Master Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I
THE BOARD OF DIRECTORS
SECTION 1.1. NOMINATION OF DIRECTORS. Subject to the terms of Company's
Restated Certificate of Incorporation, as long as PerSeptive owns at least 20%
of the issued and outstanding voting capital stock of the Company ("capital
stock"), at any time at which stockholders of the Company have the right to or
vote for or consent in writing to the election of directors of the Company, the
Company shall cause the nomination of two (2) persons designated by PerSeptive
and reasonably acceptable to the Company (the "PerSeptive Nominees") to serve on
the Board of Directors and the Principal Shareholders hereby agree to vote all
shares of capital stock of the Company presently owned or hereafter acquired by
them in favor of the election of such persons. As long as Xxxxx X. Xxxxx, Xx.
remains on the Board of Directors, he shall be one of the PerSeptive Nominees,
and as long as Xxxxxx
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X. Xxxxxx, Ph.D. remains an officer or director of PerSeptive he shall be one of
the PerSeptive Nominees.
As long as PerSeptive owns less than 20% but at least 10% of the
capital stock of the Company, at any time at which stockholders of the Company
have the right to or vote for or consent in writing to the election of directors
of the Company, the Company shall cause the nomination of one (1) person
reasonably acceptable to the Company to serve on the Board of Directors and the
Principal Shareholders hereby agree to vote all shares of capital stock of the
Company presently owned or hereafter acquired by them in favor of the election
of such person.
As long as PerSeptive owns at least 20% of the capital stock of the
Company, if the number of persons comprising the Company's Board of Directors is
increased to eight (8) members or more, the Company shall cause a third
PerSeptive Nominee reasonably acceptable to the Company to be nominated to serve
on the Board of Directors and the Principal Shareholders hereby agree to vote
all shares of capital stock of the Company presently owned or hereafter acquired
by them in favor of the election of such person.
SECTION 1.2. VACANCIES AND REMOVAL. Each of the directors designated in
Section 1.1 shall be elected at any annual or special meeting of stockholders
(or by written consent in lieu of a meeting of stockholders) and shall serve
until his successor is elected and qualified or until his earlier resignation or
removal. As long as such directors are in office, PerSeptive shall have no right
to designate, the Company shall have no obligation to nominate and the Principal
Shareholders shall have no obligation to vote for any additional PerSeptive
Nominees.
SECTION 1.3. EXECUTIVE COMMITTEE. As long as PerSeptive has the right
to designate PerSeptive Nominees to the Board of Directors, the Company will
cause at least one PerSeptive representative to serve on the Executive Committee
of the Board of Directors (if any).
SECTION 1.4. CLASSIFICATION OF THE BOARD OF DIRECTORS. As long as
PerSeptive has the right to designate PerSeptive Nominees, if the Board of
Directors is classified, the Company will cause the PerSeptive Nominees to be
divided among the classes, and upon the initial classification shall designate
the PerSeptive Nominees in the class with the longest term.
SECTION 1.5. INDEMNIFICATION AND INSURANCE. The Company will take no
action to limit indemnification available to members of its Board of Directors.
Following the registration of the Company's securities under the Securities
Exchange Act of 1934, the Company will use reasonable efforts to obtain
Directors and Officers Liability Insurance, if commercially available at
reasonable cost.
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SECTION 1.6. SIZE OF THE BOARD OF DIRECTORS. Each of the parties hereto
agrees to vote all shares of capital stock now owned or hereafter acquired by
him, her or it to fix and maintain the number of directors on the Board of
Directors of the Company at not less than six (6) nor more than nine (9)
members, except as otherwise provided in Article Fourth of the Company's
Restated Certificate of Incorporation, as amended.
ARTICLE II
MISCELLANEOUS
SECTION 2.1. DURATION OF AGREEMENT. The rights and obligations of the
Company, PerSeptive and each Principal Shareholder under this Agreement shall
terminate, on the earlier to occur of the following: (a) immediately prior to
the consummation of the sale of all, or substantially all, of the Company's
assets or capital stock either through a direct sale, merger, reorganization,
consolidation or other form of business combination, (b) June 30, 2006, or (c)
the date on which PerSeptive owns less that 10% of the capital stock of the
Company. This Agreement shall cease to apply to any Principal Shareholder
following the sale of all of such Principal Shareholder's shares of capital
stock.
SECTION 2.2. SEVERABILITY; GOVERNING LAW. If any provisions of this
Agreement shall be determined to be illegal or unenforceable by any court of
law, the remaining provisions shall be severable and enforceable to the maximum
extent possible in accordance with their terms. This Agreement shall be governed
by, and construed in accordance with, the laws of the state of organization of
the Company from time to time, initially the State of Delaware.
SECTION 2.3. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their permitted successors and
assigns, legal representatives and heirs, provided that (a) after the
consummation of the initial public offering of the Company's securities (the
"Public Offering"), this Agreement shall not be binding on any person who
acquires shares of capital stock from any Principal Shareholder or from
PerSeptive in accordance with the terms of the Standstill Agreement and (b)
prior to the Public Offering all covenants and agreements of the Principal
Shareholders and PerSeptive shall bind any and all subsequent holders of the
shares of capital stock of the Company presently owned or hereafter acquired by
PerSeptive or such Principal Shareholders, and the Company agrees that prior to
the Public Offering it shall not transfer on its records any such shares unless
(i) the transferor Principal Shareholder (or PerSeptive, if PerSeptive transfers
shares in accordance with the terms of the Standstill Agreement) shall have
first delivered to the Company the written agreement of the transferee to be
bound by this Agreement to the same extent as if such transferee had originally
been a Principal Shareholder and (ii) an appropriate legend referring to this
Agreement is included on the transferee's Stock Certificate.
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SECTION 2.4. MODIFICATION OR AMENDMENT. Neither this Agreement nor any
provision hereof can be modified, amended, changed, discharged or terminated
except by an instrument in writing, signed by (A) the Principal Shareholders who
hold at least a majority of the shares of capital stock held by the Principal
Shareholders then subject to this Agreement, based upon voting power and
calculated on an "as if converted" basis, together with (B) the consent of
PerSeptive.
SECTION 2.5. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same instrument.
SECTION 2.6. NOTICES. All notices to be given or otherwise made to any
party to this Agreement shall be deemed to be sufficient if contained in a
written instrument, delivered by hand in person, or by express overnight courier
service, or by electronic facsimile transmission addressed to such party at the
address set forth herein or at such other address as may hereafter be designated
in writing by the addressee to the addressor listing all parties, or at such
other addresses to which such party may inform the other parties in writing in
compliance with the terms of this Section :
If to the Principal Shareholders: at the addresses contained in Exhibit A
hereto.
If to PerSeptive: PerSeptive Biosystems, Inc.
000 Xxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: President
with a copy to: Xxxxx X. Xxxx, Esq.
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
If to ChemGenics: ChemGenics Pharmaceuticals Inc.
One Xxxxxxx Xxxxxx
Xxxxxxxx 000, Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: President
with a copy to: Xxxxx X. Xxxxxx, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
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All such notices shall, when delivered or telegraphed, be
effective when received or when attempted delivery is refused.
SECTION 2.9. MERGER PROVISION. This Agreement and the Master Agreement,
along with (i) all schedules to the Master Agreement and (ii) the various
agreements executed in connection with the Master Agreement, constitute the
entire agreement among the parties hereto pertaining to the subject matter
hereof and supersede all prior and contemporaneous agreements and
understandings, whether oral or written, of any of the parties hereto concerning
the subject matter hereof, except the Series D Voting Agreement. Any agreement
between the Company and PerSeptive in effect immediately prior to the execution
hereof and concerning any of the subject matter hereof is hereby terminated,
except for (i) the Master Agreement and all schedules to the Master Agreement
and (ii) the various agreements executed in connection with the Master
Agreement.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Voting
Agreement to be executed as of the date first above written.
CHEMGENICS PHARMACEUTICALS INC.
By: _______________________________
Xxxxx X. Xxxxxxxxx, President
PERSEPTIVE BIOSYSTEMS, INC.
By: _______________________________
Xxxxxx X. Xxxxxx, President
PFIZER, INC.
By:_________________________________
Title:______________________________
TECHNOLOGY LEADERS L.P.
By: Technology Leaders
Management, Inc. (General
Partner)
By:_________________________________
Name:_______________________________
Title:______________________________
TECHNOLOGY LEADERS OFFSHORE C.V.
By: Technology Leaders
Management, Inc., its General
Partner
By:_________________________________
Name:_______________________________
Title:______________________________
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BESSEMER VENTURE PARTNERS III L.P.
By:______________________________________
General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
XXXXXX XXXXXXX FUND II, L.P.
By: its general partner,
Xxxxxx Xxxxxxx Partners II L.P.
By:______________________________________
Name: Xxxxx X. Xxxxx, Xx.
Title: General Partner
GILDE INVESTMENT FUND B.V.
By:______________________________________
Name: Xxxxx X. Xxxxx, Xx.,
general partner of Xxxxxx Xxxxxxx
Partners II L.P.
COMDISCO, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
____________________________________
Xxxxx X. Xxxxxxxxx, Ph.D.
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EXHIBIT A
TO
VOTING AGREEMENT
Pfizer, Inc.
Xxxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Technology Leaders L.P.
000 Xxxxxxxxx Xxxxxxxx
000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000-0000
Technology Leaders Offshore C.V.
800 Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000-0000
Bessemer Venture Partners III L.P.
00 Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Xxxxxx Xxxxxxx Fund II, L.P.
Xxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Gilde Investment Fund B.V.
Xxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Comdisco, Inc.
Xxx Xxxxxx Xxxxxxxxx Xxxx
Xxxxxx Xxxxx Xxxxx, XX 00000
Xxxxx X. Xxxxxxxxx, Ph.D.
Xxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
