1
EXHIBIT 8
Shareholder Voting Agreements
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SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered into
as of December 6, 1996, by and between CytRx Corporation, a Delaware corporation
("CytRx"), and the undersigned shareholder (the "Shareholder") of Zynaxis, Inc.
("Zynaxis").
WHEREAS, the Shareholder desires that CytRx, Vaxcel, Inc., a Delaware
corporation, Vaxcel Merger Subsidiary, Inc., a newly formed Georgia corporation,
and Zynaxis enter into an Agreement and Plan of Merger and Contribution dated
the date hereof (as the same may be amended or supplemented, the "Merger and
Contribution Agreement"); and
WHEREAS, the Shareholder is executing this Agreement as an inducement to
CytRx to enter into and execute the Merger and Contribution Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by CytRx of
the Merger and Contribution Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to CytRx as follows:
(a) The Shareholder is the record and beneficial owner of the number
of shares (such "Shareholder's Shares") of Zynaxis Common Stock and Zynaxis
Series A Convertible Preferred Stock (collectively, the "Zynaxis Stock") set
forth below such Shareholder's name on the signature page hereof. Except for
the Shareholder's Shares, the Shareholder is not the record or beneficial owner
of any shares of Zynaxis Stock. This Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement of, the
Shareholder, enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby will
result in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction of any
kind to which the Shareholder is a party or by which it is bound or to which the
Shareholder's Shares are subject. If the Shareholder is married and the
Shareholder's Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Shareholder's spouse, enforceable against such person in
accordance with its terms. Performance by the Shareholder of its obligations
hereunder will not violate, or require any consent, approval, or notice under,
any provision of any judgment, order, decree, statute, law, rule or regulation
applicable to the Shareholder or the Shareholder's Shares.
(c) The Shareholder's Shares and the certificates representing such
Shares are now, and at all times during the term hereof will be, held by the
Shareholder, or by a nominee or custodian for the benefit of such Shareholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
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(d) With the exception of the agreement between QED and Zynaxis
regarding QED's relationship as Zynaxis's agent for the sale of the Cauldron
Division, no broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that CytRx is
entering into the Merger and Contribution Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder
acknowledges that the irrevocable proxy set forth in Section 4 is granted in
consideration for the execution and delivery of the Merger and Contribution
Agreement by CytRx.
2. Voting Agreements. The Shareholder agrees with, and covenants to, CytRx
as follows:
(a) At any meeting of shareholders of Zynaxis called to vote upon any
of the matters contemplated by the Merger and Contribution Agreement (including,
without limitation, the Charter Amendment and the sale of substantially all of
the assets of Zynaxis as contemplated by the Liquidation Agreement) or at any
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval with respect to any of the matters contemplated by the Merger and
Contribution Agreement is sought (each a "Shareholders' Meeting"), the
Shareholder shall vote (or cause to be voted) the Shareholder's Shares in favor
of each of the matters contemplated by the Merger and Contribution Agreement.
(b) At any meeting of shareholders of Zynaxis or at any adjournment
thereof or in any other circumstances upon which their vote, consent or other
approval is sought, the Shareholder shall vote (or cause to be voted) such
Shareholder's Shares against (i) any merger, consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by Zynaxis (other than the transactions contemplated by the
Merger and Contribution Agreement), or (ii) any amendment of Zynaxis's Articles
of Incorporation, as amended, or Bylaws or other proposal or transaction
involving Zynaxis or any of its subsidiaries, which amendment or other proposal
or transaction would in any manner impede, frustrate, prevent or nullify any of
the transactions contemplated by the Merger and Contribution Agreement (each of
the foregoing in clause (i) or (ii) above, a "Competing Transaction").
3. Covenants. The Shareholder agrees with, and covenants to, CytRx as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of any
or all of the Shareholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to the
Shareholder's Shares, except for this Agreement, or (iv) deposit the
Shareholder's Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the Shareholder's Shares; provided, that the
Shareholder may transfer (as defined above) any of the Shareholder's Shares to
any other person who is on the date hereof, or to any family member of a person
or charitable institution which prior to such transfer becomes, a party to this
Agreement bound by all the obligations of the "Shareholder" hereunder.
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(b) The Shareholder hereby waives any rights of appraisal, or rights
to dissent from the transactions contemplated by the Merger and Contribution
Agreement, that such Shareholder may have (including, without limitation, any
rights arising under Subchapter E of Chapter 25 of the Pennsylvania Business
Corporation Law).
(c) The Shareholder shall not, nor shall it permit any investment
banker, attorney or other adviser or representative of the Shareholder to,
directly or indirectly, (i) solicit, initiate or encourage the submission of,
any takeover proposal or (ii) participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or take any
other action to facilitate any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any takeover proposal.
For all purposes hereof, "takeover proposal" means any proposal for a merger or
other business combination involving Zynaxis or any of its subsidiaries or any
proposal or offer to acquire in any manner, directly or indirectly, an equity
interest in any voting securities of, or a substantial portion of the assets of
Zynaxis or any of its subsidiaries, other than the transactions contemplated by
the Merger and Contribution Agreement and other than any transfer expressly
permitted by the proviso to Section 3(a).
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, CytRx
and Xxxx X. Xxxxxxx, President of CytRx, and Xxxx X. Xxxxxxxx, Chief Financial
Officer of CytRx, in their respective capacities as officers of CytRx, and any
individual who shall hereafter succeed to any such office of CytRx, and each of
them individually, the Shareholder's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of the Shareholder, to
vote the Shareholder's Shares, or grant a consent or approval in respect of such
Shares (i) in favor of each of the matters contemplated by the Merger and
Contribution Agreement, and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 4 is given in connection with the execution of the Merger
and Contribution Agreement, and that such irrevocable proxy is given to secure
the performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. The Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 1759 of the
Pennsylvania Business Corporation Act as a proxy coupled with an interest.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of the
Shareholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Shareholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Zynaxis affecting
the Zynaxis Stock, or the acquisition of additional shares of Zynaxis Stock or
other voting securities of Zynaxis by the Shareholder, the number of the
Shareholder's Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Zynaxis Stock or other voting securities of Zynaxis
issued to or acquired by the Shareholder.
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6. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
7. Further Assurances. The Shareholder shall, upon request of CytRx,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by CytRx to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 of this Agreement in CytRx and the other irrevocable
proxies described therein at the expense of CytRx.
8. Termination. This Agreement, and all rights and obligations of the
parties hereunder; shall terminate upon the first to occur of (x) the closing of
the transactions contemplated by the Merger and Contribution Agreement, or (y)
the date upon which the Merger and Contribution Agreement is terminated in
accordance with its terms; provided that if an "Extension Event" shall have
occurred as of or prior to termination of the Merger and Contribution Agreement,
then, for a period of one year following such termination, (i) the rights and
obligations of the parties hereto under Sections 2, 3(c), 4(a) and 5 hereof
shall continue in full force and effect and (ii) the Shareholder shall not
transfer any or all of the Shareholder's Shares in connection with any Competing
Transaction or takeover proposal. For purposes of the foregoing, an "Extension
Event" shall mean any of the following events: (A) the shareholders meeting to
approve the matters contemplated by the Merger and Contribution Agreement shall
not have been held or the requisite approval of such matters at such meeting by
the holders of Zynaxis Stock shall not have been obtained, or (B) any person
(other than CytRx or any subsidiary of CytRx) shall have made, or disclosed an
intention to make, a takeover proposal or proposal for a Competing Transaction.
9. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger and
Contribution Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to CytRx, to the address set forth in
Section 11.8 of the Merger and Contribution Agreement; and (ii) if to the
Shareholder, to its address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Pennsylvania, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
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(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and
that CytRx would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that CytRx
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by
such party.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned parties have executed and delivered this
Shareholder Voting Agreement as of the day and year first above written.
CYTRX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
President
SHAREHOLDER:
/s/ Senmed Medical Ventures,
by Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Address: Senmed Medical Ventures
0000 Xxxx Xxxxxx Xxxxx,
Xxxxx 000
Xxxxxxxxxx XX 00000
Number of Shares of
Zynaxis Common Stock
Subject to Agreement: 994,464
Number of Shares of
Zynaxis Preferred Stock
Subject to Agreement: 135,000
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SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered into
as of December 6, 1996, by and between CytRx Corporation, a Delaware corporation
("CytRx"), and the undersigned shareholder (the "Shareholder") of Zynaxis, Inc.
("Zynaxis").
WHEREAS, the Shareholder desires that CytRx, Vaxcel, Inc., a Delaware
corporation, Vaxcel Merger Subsidiary, Inc., a newly formed Georgia corporation,
and Zynaxis enter into an Agreement and Plan of Merger and Contribution dated
the date hereof (as the same may be amended or supplemented, the "Merger and
Contribution Agreement"); and
WHEREAS, the Shareholder is executing this Agreement as an inducement to
CytRx to enter into and execute the Merger and Contribution Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by CytRx of
the Merger and Contribution Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to CytRx as follows:
(a) The Shareholder is the record and beneficial owner of the number
of shares (such "Shareholder's Shares") of Zynaxis Common Stock and Zynaxis
Series A Convertible Preferred Stock (collectively, the "Zynaxis Stock") set
forth below such Shareholder's name on the signature page hereof. Except for
the Shareholder's Shares, the Shareholder is not the record or beneficial owner
of any shares of Zynaxis Stock. This Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement of, the
Shareholder, enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby will
result in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction of any
kind to which the Shareholder is a party or by which it is bound or to which the
Shareholder's Shares are subject. If the Shareholder is married and the
Shareholder's Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Shareholder's spouse, enforceable against such person in
accordance with its terms. Performance by the Shareholder of its obligations
hereunder will not violate, or require any consent, approval, or notice under,
any provision of any judgment, order, decree, statute, law, rule or regulation
applicable to the Shareholder or the Shareholder's Shares.
(c) The Shareholder's Shares and the certificates representing such
Shares are now, and at all times during the term hereof will be, held by the
Shareholder, or by a nominee or custodian for the benefit of such Shareholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
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(d) With the exception of the agreement between QED and Zynaxis
regarding QED's relationship as Zynaxis's agent for the sale of the Cauldron
Division, no broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that CytRx is
entering into the Merger and Contribution Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder
acknowledges that the irrevocable proxy set forth in Section 4 is granted in
consideration for the execution and delivery of the Merger and Contribution
Agreement by CytRx.
2. Voting Agreements. The Shareholder agrees with, and covenants to, CytRx
as follows:
(a) At any meeting of shareholders of Zynaxis called to vote upon any
of the matters contemplated by the Merger and Contribution Agreement (including,
without limitation, the Charter Amendment and the sale of substantially all of
the assets of Zynaxis as contemplated by the Liquidation Agreement) or at any
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval with respect to any of the matters contemplated by the Merger and
Contribution Agreement is sought (each a "Shareholders' Meeting"), the
Shareholder shall vote (or cause to be voted) the Shareholder's Shares in favor
of each of the matters contemplated by the Merger and Contribution Agreement.
(b) At any meeting of shareholders of Zynaxis or at any adjournment
thereof or in any other circumstances upon which their vote, consent or other
approval is sought, the Shareholder shall vote (or cause to be voted) such
Shareholder's Shares against (i) any merger, consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by Zynaxis (other than the transactions contemplated by the
Merger and Contribution Agreement), or (ii) any amendment of Zynaxis's Articles
of Incorporation, as amended, or Bylaws or other proposal or transaction
involving Zynaxis or any of its subsidiaries, which amendment or other proposal
or transaction would in any manner impede, frustrate, prevent or nullify any of
the transactions contemplated by the Merger and Contribution Agreement (each of
the foregoing in clause (i) or (ii) above, a "Competing Transaction").
3. Covenants. The Shareholder agrees with, and covenants to, CytRx as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of any
or all of the Shareholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to the
Shareholder's Shares, except for this Agreement, or (iv) deposit the
Shareholder's Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the Shareholder's Shares; provided, that the
Shareholder may transfer (as defined above) any of the Shareholder's Shares to
any other person who is on the date hereof, or to any family member of a person
or charitable institution which prior to such transfer becomes, a party to this
Agreement bound by all the obligations of the "Shareholder" hereunder.
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(b) The Shareholder hereby waives any rights of appraisal, or rights
to dissent from the transactions contemplated by the Merger and Contribution
Agreement, that such Shareholder may have (including, without limitation, any
rights arising under Subchapter E of Chapter 25 of the Pennsylvania Business
Corporation Law).
(c) The Shareholder shall not, nor shall it permit any investment
banker, attorney or other adviser or representative of the Shareholder to,
directly or indirectly, (i) solicit, initiate or encourage the submission of,
any takeover proposal or (ii) participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or take any
other action to facilitate any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any takeover proposal.
For all purposes hereof, "takeover proposal" means any proposal for a merger or
other business combination involving Zynaxis or any of its subsidiaries or any
proposal or offer to acquire in any manner, directly or indirectly, an equity
interest in any voting securities of, or a substantial portion of the assets of
Zynaxis or any of its subsidiaries, other than the transactions contemplated by
the Merger and Contribution Agreement and other than any transfer expressly
permitted by the proviso to Section 3(a).
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, CytRx
and Xxxx X. Xxxxxxx, President of CytRx, and Xxxx X. Xxxxxxxx, Chief Financial
Officer of CytRx, in their respective capacities as officers of CytRx, and any
individual who shall hereafter succeed to any such office of CytRx, and each of
them individually, the Shareholder's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of the Shareholder, to
vote the Shareholder's Shares, or grant a consent or approval in respect of such
Shares (i) in favor of each of the matters contemplated by the Merger and
Contribution Agreement, and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 4 is given in connection with the execution of the Merger
and Contribution Agreement, and that such irrevocable proxy is given to secure
the performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. The Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 1759 of the
Pennsylvania Business Corporation Act as a proxy coupled with an interest.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of the
Shareholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Shareholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Zynaxis affecting
the Zynaxis Stock, or the acquisition of additional shares of Zynaxis Stock or
other voting securities of Zynaxis by the Shareholder, the number of the
Shareholder's Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Zynaxis Stock or other voting securities of Zynaxis
issued to or acquired by the Shareholder.
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6. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
7. Further Assurances. The Shareholder shall, upon request of CytRx,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by CytRx to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 of this Agreement in CytRx and the other irrevocable
proxies described therein at the expense of CytRx.
8. Termination. This Agreement, and all rights and obligations of the
parties hereunder; shall terminate upon the first to occur of (x) the closing of
the transactions contemplated by the Merger and Contribution Agreement, or (y)
the date upon which the Merger and Contribution Agreement is terminated in
accordance with its terms; provided that if an "Extension Event" shall have
occurred as of or prior to termination of the Merger and Contribution Agreement,
then, for a period of one year following such termination, (i) the rights and
obligations of the parties hereto under Sections 2, 3(c), 4(a) and 5 hereof
shall continue in full force and effect and (ii) the Shareholder shall not
transfer any or all of the Shareholder's Shares in connection with any Competing
Transaction or takeover proposal. For purposes of the foregoing, an "Extension
Event" shall mean any of the following events: (A) the shareholders meeting to
approve the matters contemplated by the Merger and Contribution Agreement shall
not have been held or the requisite approval of such matters at such meeting by
the holders of Zynaxis Stock shall not have been obtained, or (B) any person
(other than CytRx or any subsidiary of CytRx) shall have made, or disclosed an
intention to make, a takeover proposal or proposal for a Competing Transaction.
9. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger and
Contribution Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to CytRx, to the address set forth in
Section 11.8 of the Merger and Contribution Agreement; and (ii) if to the
Shareholder, to its address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Pennsylvania, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
12
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and
that CytRx would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that CytRx
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by
such party.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned parties have executed and delivered this
Shareholder Voting Agreement as of the day and year first above written.
CYTRX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
President
SHAREHOLDER:
/s/ Commonwealth Venture Partners I, L.P.
by Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Address: General Partner
Commonwealth Venture
Partners I, L.P.
Number of Shares
of Zynaxis Common Stock
Subject to Agreement:
Number of Shares
of Zynaxis Preferred Stock
Subject to Agreement: 10,000
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SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered into
as of December 6, 1996, by and between CytRx Corporation, a Delaware corporation
("CytRx"), and the undersigned shareholder (the "Shareholder") of Zynaxis, Inc.
("Zynaxis").
WHEREAS, the Shareholder desires that CytRx, Vaxcel, Inc., a Delaware
corporation, Vaxcel Merger Subsidiary, Inc., a newly formed Georgia corporation,
and Zynaxis enter into an Agreement and Plan of Merger and Contribution dated
the date hereof (as the same may be amended or supplemented, the "Merger and
Contribution Agreement"); and
WHEREAS, the Shareholder is executing this Agreement as an inducement to
CytRx to enter into and execute the Merger and Contribution Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by CytRx of
the Merger and Contribution Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to CytRx as follows:
(a) The Shareholder is the record and beneficial owner of the number
of shares (such "Shareholder's Shares") of Zynaxis Common Stock and Zynaxis
Series A Convertible Preferred Stock (collectively, the "Zynaxis Stock") set
forth below such Shareholder's name on the signature page hereof. Except for
the Shareholder's Shares, the Shareholder is not the record or beneficial owner
of any shares of Zynaxis Stock. This Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement of, the
Shareholder, enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby will
result in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction of any
kind to which the Shareholder is a party or by which it is bound or to which the
Shareholder's Shares are subject. If the Shareholder is married and the
Shareholder's Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Shareholder's spouse, enforceable against such person in
accordance with its terms. Performance by the Shareholder of its obligations
hereunder will not violate, or require any consent, approval, or notice under,
any provision of any judgment, order, decree, statute, law, rule or regulation
applicable to the Shareholder or the Shareholder's Shares.
(c) The Shareholder's Shares and the certificates representing such
Shares are now, and at all times during the term hereof will be, held by the
Shareholder, or by a nominee or custodian for the benefit of such Shareholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
15
(d) With the exception of the agreement between QED and Zynaxis
regarding QED's relationship as Zynaxis's agent for the sale of the Cauldron
Division, no broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that CytRx is
entering into the Merger and Contribution Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder
acknowledges that the irrevocable proxy set forth in Section 4 is granted in
consideration for the execution and delivery of the Merger and Contribution
Agreement by CytRx.
2. Voting Agreements. The Shareholder agrees with, and covenants to, CytRx
as follows:
(a) At any meeting of shareholders of Zynaxis called to vote upon any
of the matters contemplated by the Merger and Contribution Agreement (including,
without limitation, the Charter Amendment and the sale of substantially all of
the assets of Zynaxis as contemplated by the Liquidation Agreement) or at any
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval with respect to any of the matters contemplated by the Merger and
Contribution Agreement is sought (each a "Shareholders' Meeting"), the
Shareholder shall vote (or cause to be voted) the Shareholder's Shares in favor
of each of the matters contemplated by the Merger and Contribution Agreement.
(b) At any meeting of shareholders of Zynaxis or at any adjournment
thereof or in any other circumstances upon which their vote, consent or other
approval is sought, the Shareholder shall vote (or cause to be voted) such
Shareholder's Shares against (i) any merger, consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by Zynaxis (other than the transactions contemplated by the
Merger and Contribution Agreement), or (ii) any amendment of Zynaxis's Articles
of Incorporation, as amended, or Bylaws or other proposal or transaction
involving Zynaxis or any of its subsidiaries, which amendment or other proposal
or transaction would in any manner impede, frustrate, prevent or nullify any of
the transactions contemplated by the Merger and Contribution Agreement (each of
the foregoing in clause (i) or (ii) above, a "Competing Transaction").
3. Covenants. The Shareholder agrees with, and covenants to, CytRx as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of any
or all of the Shareholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to the
Shareholder's Shares, except for this Agreement, or (iv) deposit the
Shareholder's Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the Shareholder's Shares; provided, that the
Shareholder may transfer (as defined above) any of the Shareholder's Shares to
any other person who is on the date hereof, or to any family member of a person
or charitable institution which prior to such transfer becomes, a party to this
Agreement bound by all the obligations of the "Shareholder" hereunder.
16
(b) The Shareholder hereby waives any rights of appraisal, or rights
to dissent from the transactions contemplated by the Merger and Contribution
Agreement, that such Shareholder may have (including, without limitation, any
rights arising under Subchapter E of Chapter 25 of the Pennsylvania Business
Corporation Law).
(c) The Shareholder shall not, nor shall it permit any investment
banker, attorney or other adviser or representative of the Shareholder to,
directly or indirectly, (i) solicit, initiate or encourage the submission of,
any takeover proposal or (ii) participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or take any
other action to facilitate any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any takeover proposal.
For all purposes hereof, "takeover proposal" means any proposal for a merger or
other business combination involving Zynaxis or any of its subsidiaries or any
proposal or offer to acquire in any manner, directly or indirectly, an equity
interest in any voting securities of, or a substantial portion of the assets of
Zynaxis or any of its subsidiaries, other than the transactions contemplated by
the Merger and Contribution Agreement and other than any transfer expressly
permitted by the proviso to Section 3(a).
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, CytRx
and Xxxx X. Xxxxxxx, President of CytRx, and Xxxx X. Xxxxxxxx, Chief Financial
Officer of CytRx, in their respective capacities as officers of CytRx, and any
individual who shall hereafter succeed to any such office of CytRx, and each of
them individually, the Shareholder's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of the Shareholder, to
vote the Shareholder's Shares, or grant a consent or approval in respect of such
Shares (i) in favor of each of the matters contemplated by the Merger and
Contribution Agreement, and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 4 is given in connection with the execution of the Merger
and Contribution Agreement, and that such irrevocable proxy is given to secure
the performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. The Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 1759 of the
Pennsylvania Business Corporation Act as a proxy coupled with an interest.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of the
Shareholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Shareholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Zynaxis affecting
the Zynaxis Stock, or the acquisition of additional shares of Zynaxis Stock or
other voting securities of Zynaxis by the Shareholder, the number of the
Shareholder's Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Zynaxis Stock or other voting securities of Zynaxis
issued to or acquired by the Shareholder.
17
6. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
7. Further Assurances. The Shareholder shall, upon request of CytRx,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by CytRx to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 of this Agreement in CytRx and the other irrevocable
proxies described therein at the expense of CytRx.
8. Termination. This Agreement, and all rights and obligations of the
parties hereunder; shall terminate upon the first to occur of (x) the closing of
the transactions contemplated by the Merger and Contribution Agreement, or (y)
the date upon which the Merger and Contribution Agreement is terminated in
accordance with its terms; provided that if an "Extension Event" shall have
occurred as of or prior to termination of the Merger and Contribution Agreement,
then, for a period of one year following such termination, (i) the rights and
obligations of the parties hereto under Sections 2, 3(c), 4(a) and 5 hereof
shall continue in full force and effect and (ii) the Shareholder shall not
transfer any or all of the Shareholder's Shares in connection with any Competing
Transaction or takeover proposal. For purposes of the foregoing, an "Extension
Event" shall mean any of the following events: (A) the shareholders meeting to
approve the matters contemplated by the Merger and Contribution Agreement shall
not have been held or the requisite approval of such matters at such meeting by
the holders of Zynaxis Stock shall not have been obtained, or (B) any person
(other than CytRx or any subsidiary of CytRx) shall have made, or disclosed an
intention to make, a takeover proposal or proposal for a Competing Transaction.
9. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger and
Contribution Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to CytRx, to the address set forth in
Section 11.8 of the Merger and Contribution Agreement; and (ii) if to the
Shareholder, to its address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Pennsylvania, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
18
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and
that CytRx would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that CytRx
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by
such party.
[Remainder of page intentionally left blank.]
19
IN WITNESS WHEREOF, the undersigned parties have executed and delivered this
Shareholder Voting Agreement as of the day and year first above written.
CYTRX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
President
SHAREHOLDER:
/s/ Philadelphia Ventures Japan I, L.P.
by Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Address: General Partner
Philadelphia Ventures
Japan I, L.P.
Number of Shares
of Zynaxis Common Stock
Subject to Agreement:
Number of Shares
of Zynaxis Preferred Stock
Subject to Agreement: 2,500
20
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered into
as of December 6, 1996, by and between CytRx Corporation, a Delaware corporation
("CytRx"), and the undersigned shareholder (the "Shareholder") of Zynaxis, Inc.
("Zynaxis").
WHEREAS, the Shareholder desires that CytRx, Vaxcel, Inc., a Delaware
corporation, Vaxcel Merger Subsidiary, Inc., a newly formed Georgia corporation,
and Zynaxis enter into an Agreement and Plan of Merger and Contribution dated
the date hereof (as the same may be amended or supplemented, the "Merger and
Contribution Agreement"); and
WHEREAS, the Shareholder is executing this Agreement as an inducement to
CytRx to enter into and execute the Merger and Contribution Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by CytRx of
the Merger and Contribution Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to CytRx as follows:
(a) The Shareholder is the record and beneficial owner of the number
of shares (such "Shareholder's Shares") of Zynaxis Common Stock and Zynaxis
Series A Convertible Preferred Stock (collectively, the "Zynaxis Stock") set
forth below such Shareholder's name on the signature page hereof. Except for
the Shareholder's Shares, the Shareholder is not the record or beneficial owner
of any shares of Zynaxis Stock. This Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement of, the
Shareholder, enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby will
result in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction of any
kind to which the Shareholder is a party or by which it is bound or to which the
Shareholder's Shares are subject. If the Shareholder is married and the
Shareholder's Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Shareholder's spouse, enforceable against such person in
accordance with its terms. Performance by the Shareholder of its obligations
hereunder will not violate, or require any consent, approval, or notice under,
any provision of any judgment, order, decree, statute, law, rule or regulation
applicable to the Shareholder or the Shareholder's Shares.
(c) The Shareholder's Shares and the certificates representing such
Shares are now, and at all times during the term hereof will be, held by the
Shareholder, or by a nominee or custodian for the benefit of such Shareholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
21
(d) With the exception of the agreement between QED and Zynaxis
regarding QED's relationship as Zynaxis's agent for the sale of the Cauldron
Division, no broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that CytRx is
entering into the Merger and Contribution Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder
acknowledges that the irrevocable proxy set forth in Section 4 is granted in
consideration for the execution and delivery of the Merger and Contribution
Agreement by CytRx.
2. Voting Agreements. The Shareholder agrees with, and covenants to, CytRx
as follows:
(a) At any meeting of shareholders of Zynaxis called to vote upon any
of the matters contemplated by the Merger and Contribution Agreement (including,
without limitation, the Charter Amendment and the sale of substantially all of
the assets of Zynaxis as contemplated by the Liquidation Agreement) or at any
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval with respect to any of the matters contemplated by the Merger and
Contribution Agreement is sought (each a "Shareholders' Meeting"), the
Shareholder shall vote (or cause to be voted) the Shareholder's Shares in favor
of each of the matters contemplated by the Merger and Contribution Agreement.
(b) At any meeting of shareholders of Zynaxis or at any adjournment
thereof or in any other circumstances upon which their vote, consent or other
approval is sought, the Shareholder shall vote (or cause to be voted) such
Shareholder's Shares against (i) any merger, consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by Zynaxis (other than the transactions contemplated by the
Merger and Contribution Agreement), or (ii) any amendment of Zynaxis's Articles
of Incorporation, as amended, or Bylaws or other proposal or transaction
involving Zynaxis or any of its subsidiaries, which amendment or other proposal
or transaction would in any manner impede, frustrate, prevent or nullify any of
the transactions contemplated by the Merger and Contribution Agreement (each of
the foregoing in clause (i) or (ii) above, a "Competing Transaction").
3. Covenants. The Shareholder agrees with, and covenants to, CytRx as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of any
or all of the Shareholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to the
Shareholder's Shares, except for this Agreement, or (iv) deposit the
Shareholder's Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the Shareholder's Shares; provided, that the
Shareholder may transfer (as defined above) any of the Shareholder's Shares to
any other person who is on the date hereof, or to any family member of a person
or charitable institution which prior to such transfer becomes, a party to this
Agreement bound by all the obligations of the "Shareholder" hereunder.
22
(b) The Shareholder hereby waives any rights of appraisal, or rights
to dissent from the transactions contemplated by the Merger and Contribution
Agreement, that such Shareholder may have (including, without limitation, any
rights arising under Subchapter E of Chapter 25 of the Pennsylvania Business
Corporation Law).
(c) The Shareholder shall not, nor shall it permit any investment
banker, attorney or other adviser or representative of the Shareholder to,
directly or indirectly, (i) solicit, initiate or encourage the submission of,
any takeover proposal or (ii) participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or take any
other action to facilitate any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any takeover proposal.
For all purposes hereof, "takeover proposal" means any proposal for a merger or
other business combination involving Zynaxis or any of its subsidiaries or any
proposal or offer to acquire in any manner, directly or indirectly, an equity
interest in any voting securities of, or a substantial portion of the assets of
Zynaxis or any of its subsidiaries, other than the transactions contemplated by
the Merger and Contribution Agreement and other than any transfer expressly
permitted by the proviso to Section 3(a).
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, CytRx
and Xxxx X. Xxxxxxx, President of CytRx, and Xxxx X. Xxxxxxxx, Chief Financial
Officer of CytRx, in their respective capacities as officers of CytRx, and any
individual who shall hereafter succeed to any such office of CytRx, and each of
them individually, the Shareholder's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of the Shareholder, to
vote the Shareholder's Shares, or grant a consent or approval in respect of such
Shares (i) in favor of each of the matters contemplated by the Merger and
Contribution Agreement, and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 4 is given in connection with the execution of the Merger
and Contribution Agreement, and that such irrevocable proxy is given to secure
the performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. The Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 1759 of the
Pennsylvania Business Corporation Act as a proxy coupled with an interest.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of the
Shareholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Shareholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Zynaxis affecting
the Zynaxis Stock, or the acquisition of additional shares of Zynaxis Stock or
other voting securities of Zynaxis by the Shareholder, the number of the
Shareholder's Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Zynaxis Stock or other voting securities of Zynaxis
issued to or acquired by the Shareholder.
23
6. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
7. Further Assurances. The Shareholder shall, upon request of CytRx,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by CytRx to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 of this Agreement in CytRx and the other irrevocable
proxies described therein at the expense of CytRx.
8. Termination. This Agreement, and all rights and obligations of the
parties hereunder; shall terminate upon the first to occur of (x) the closing of
the transactions contemplated by the Merger and Contribution Agreement, or (y)
the date upon which the Merger and Contribution Agreement is terminated in
accordance with its terms; provided that if an "Extension Event" shall have
occurred as of or prior to termination of the Merger and Contribution Agreement,
then, for a period of one year following such termination, (i) the rights and
obligations of the parties hereto under Sections 2, 3(c), 4(a) and 5 hereof
shall continue in full force and effect and (ii) the Shareholder shall not
transfer any or all of the Shareholder's Shares in connection with any Competing
Transaction or takeover proposal. For purposes of the foregoing, an "Extension
Event" shall mean any of the following events: (A) the shareholders meeting to
approve the matters contemplated by the Merger and Contribution Agreement shall
not have been held or the requisite approval of such matters at such meeting by
the holders of Zynaxis Stock shall not have been obtained, or (B) any person
(other than CytRx or any subsidiary of CytRx) shall have made, or disclosed an
intention to make, a takeover proposal or proposal for a Competing Transaction.
9. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger and
Contribution Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to CytRx, to the address set forth in
Section 11.8 of the Merger and Contribution Agreement; and (ii) if to the
Shareholder, to its address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Pennsylvania, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
24
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and
that CytRx would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that CytRx
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by
such party.
[Remainder of page intentionally left blank.]
25
IN WITNESS WHEREOF, the undersigned parties have executed and delivered this
Shareholder Voting Agreement as of the day and year first above written.
CYTRX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
President
SHAREHOLDER:
/s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Address: 000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Number of Shares
of Zynaxis Common Stock
Subject to Agreement: 94,244
Number of Shares
of Zynaxis Preferred Stock
Subject to Agreement: 12,500
26
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered into
as of December 6, 1996, by and between CytRx Corporation, a Delaware corporation
("CytRx"), and the undersigned shareholder (the "Shareholder") of Zynaxis, Inc.
("Zynaxis").
WHEREAS, the Shareholder desires that CytRx, Vaxcel, Inc., a Delaware
corporation, Vaxcel Merger Subsidiary, Inc., a newly formed Georgia corporation,
and Zynaxis enter into an Agreement and Plan of Merger and Contribution dated
the date hereof (as the same may be amended or supplemented, the "Merger and
Contribution Agreement"); and
WHEREAS, the Shareholder is executing this Agreement as an inducement to
CytRx to enter into and execute the Merger and Contribution Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by CytRx of
the Merger and Contribution Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to CytRx as follows:
(a) The Shareholder is the record and beneficial owner of the number
of shares (such "Shareholder's Shares") of Zynaxis Common Stock and Zynaxis
Series A Convertible Preferred Stock (collectively, the "Zynaxis Stock") set
forth below such Shareholder's name on the signature page hereof. Except for
the Shareholder's Shares, the Shareholder is not the record or beneficial owner
of any shares of Zynaxis Stock. This Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement of, the
Shareholder, enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby will
result in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction of any
kind to which the Shareholder is a party or by which it is bound or to which the
Shareholder's Shares are subject. If the Shareholder is married and the
Shareholder's Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Shareholder's spouse, enforceable against such person in
accordance with its terms. Performance by the Shareholder of its obligations
hereunder will not violate, or require any consent, approval, or notice under,
any provision of any judgment, order, decree, statute, law, rule or regulation
applicable to the Shareholder or the Shareholder's Shares.
(c) The Shareholder's Shares and the certificates representing such
Shares are now held by the Shareholder, or by a nominee or custodian for the
benefit of such Shareholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever, except as established by this Agreement.
(d) With the exception of the agreement between QED and Zynaxis
regarding QED's relationship as Zynaxis's agent for the sale of the Cauldron
Division, no broker, investment banker,
27
financial adviser or other person is entitled to any broker's, finder's,
financial adviser's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Shareholder.
(e) The Shareholder understands and acknowledges that CytRx is
entering into the Merger and Contribution Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder
acknowledges that the irrevocable proxy set forth in Section 4 is granted in
consideration for the execution and delivery of the Merger and Contribution
Agreement by CytRx.
2. Voting Agreements. The Shareholder agrees with, and covenants to, CytRx
as follows:
(a) At any meeting of shareholders of Zynaxis called to vote upon any
of the matters contemplated by the Merger and Contribution Agreement (including,
without limitation, the Charter Amendment and the sale of substantially all of
the assets of Zynaxis as contemplated by the Liquidation Agreement) or at any
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval with respect to any of the matters contemplated by the Merger and
Contribution Agreement is sought (each a "Shareholders' Meeting"), the
Shareholder shall vote (or cause to be voted) any of the Shareholder's Shares
held by the Shareholder at the time of such vote in favor of each of the matters
contemplated by the Merger and Contribution Agreement.
(b) At any meeting of shareholders of Zynaxis or at any adjournment
thereof or in any other circumstances upon which their vote, consent or other
approval is sought, the Shareholder shall vote (or cause to be voted) any of the
Shareholder's Shares held by the Shareholder at the time of such vote against
(i) any merger, consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or winding up of or
by Zynaxis (other than the transactions contemplated by the Merger and
Contribution Agreement), or (ii) any amendment of Zynaxis's Articles of
Incorporation, as amended, or Bylaws or other proposal or transaction involving
Zynaxis or any of its subsidiaries, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent or nullify any of the
transactions contemplated by the Merger and Contribution Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
3. Covenants. The Shareholder agrees with, and covenants to, CytRx as
follows:
(a) The Shareholder shall not (i) grant any proxy, power of attorney
or other authorization in or with respect to the Shareholder's Shares, except
for this Agreement, or (ii) deposit the Shareholder's Shares into a voting trust
or enter into a voting agreement or arrangement with respect to the
Shareholder's Shares; provided, however, that the foregoing shall not be deemed
to prohibit the Shareholder from selling any or all of the Shareholder's Shares.
(b) The Shareholder hereby waives any rights of appraisal, or rights
to dissent from the transactions contemplated by the Merger and Contribution
Agreement, that such Shareholder may have with respect to any Shareholder's
Shares held by Shareholder at times at which such rights may be exercised
(including, without limitation, any rights arising under Subchapter E of Chapter
25 of the Pennsylvania Business Corporation Law).
(c) The Shareholder shall not, nor shall it permit any investment
banker, attorney or other adviser or representative of the Shareholder to,
directly or indirectly, (i) solicit, initiate or encourage
28
the submission of, any takeover proposal or (ii) participate in any discussions
or negotiations regarding, or furnish to any person any information with respect
to, or take any other action to facilitate any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
takeover proposal. For all purposes hereof, "takeover proposal" means any
proposal for a merger or other business combination involving Zynaxis or any of
its subsidiaries or any proposal or offer to acquire in any manner, directly or
indirectly, an equity interest in any voting securities of, or a substantial
portion of the assets of Zynaxis or any of its subsidiaries, other than the
transactions contemplated by the Merger and Contribution Agreement and other
than any transfer expressly permitted by the proviso to Section 3(a).
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, CytRx
and Xxxx X. Xxxxxxx, President of CytRx, and Xxxx X. Xxxxxxxx, Chief Financial
Officer of CytRx, in their respective capacities as officers of CytRx, and any
individual who shall hereafter succeed to any such office of CytRx, and each of
them individually, the Shareholder's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of the Shareholder, to
vote any of the Shareholder's Shares held by the Shareholder at the time of such
vote, or to grant a consent or approval in respect of any of such Shares held by
the Shareholder at the time such consent or approval is sought (i) in favor of
each of the matters contemplated by the Merger and Contribution Agreement, and
(ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 4 is given in connection with the execution of the Merger
and Contribution Agreement, and that such irrevocable proxy is given to secure
the performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. The Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 1759 of the
Pennsylvania Business Corporation Act as a proxy coupled with an interest.
5. Certain Events. The Shareholder agrees that in the event of any stock
split, stock dividend, merger, reorganization, recapitalization or other change
in the capital structure of Zynaxis affecting the Zynaxis Stock, or the
acquisition of additional shares of Zynaxis Stock or other voting securities of
Zynaxis by the Shareholder, the number of the Shareholder's Shares subject to
the terms of this Agreement shall be adjusted appropriately and this Agreement
and the obligations hereunder shall attach to any additional shares of Zynaxis
Stock or other voting securities of Zynaxis issued to or acquired by the
Shareholder.
6. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
7. Further Assurances. The Shareholder shall, upon request of CytRx,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by CytRx to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
29
contemplated by Section 4 of this Agreement in CytRx and the other irrevocable
proxies described therein at the expense of CytRx.
8. Termination. This Agreement, and all rights and obligations of the
parties hereunder; shall terminate upon the first to occur of (x) the closing of
the transactions contemplated by the Merger and Contribution Agreement, or (y)
the date upon which the Merger and Contribution Agreement is terminated in
accordance with its terms; provided that if an "Extension Event" shall have
occurred as of or prior to termination of the Merger and Contribution Agreement,
then, for a period of one year following such termination, (i) the rights and
obligations of the parties hereto under Sections 2, 3(c), 4(a) and 5 hereof
shall continue in full force and effect and (ii) the Shareholder shall not
transfer any or all of the Shareholder's Shares in connection with any Competing
Transaction or takeover proposal. For purposes of the foregoing, an "Extension
Event" shall mean any of the following events: (A) the shareholders meeting to
approve the matters contemplated by the Merger and Contribution Agreement shall
not have been held or the requisite approval of such matters at such meeting by
the holders of Zynaxis Stock shall not have been obtained, or (B) any person
(other than CytRx or any subsidiary of CytRx) shall have made, or disclosed an
intention to make, a takeover proposal or proposal for a Competing Transaction.
9. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger and
Contribution Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to CytRx, to the address set forth in
Section 11.8 of the Merger and Contribution Agreement; and (ii) if to the
Shareholder, to its address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Pennsylvania, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
30
(h) The Shareholder agrees that irreparable damage would occur and
that CytRx would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that CytRx
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by
such party.
[Remainder of page intentionally left blank.]
31
IN WITNESS WHEREOF, the undersigned parties have executed and delivered this
Shareholder Voting Agreement as of the day and year first above written.
CYTRX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
President
SHAREHOLDER:
/s/ CIP Capital L.P.
by Xxxxx X. Xxxxxxx, V.P. of
CIP Capital Management Inc.,
General Partner
Name: CIP Capital L.P.
Address: 00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Number of Shares
of Zynaxis Common Stock
Subject to Agreement:
Number of Shares
of Zynaxis Preferred Stock
Subject to Agreement: 45,000
32
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered into
as of December 6, 1996, by and between CytRx Corporation, a Delaware corporation
("CytRx"), and the undersigned shareholder (the "Shareholder") of Zynaxis, Inc.
("Zynaxis").
WHEREAS, the Shareholder desires that CytRx, Vaxcel, Inc., a Delaware
corporation, Vaxcel Merger Subsidiary, Inc., a newly formed Georgia corporation,
and Zynaxis enter into an Agreement and Plan of Merger and Contribution dated
the date hereof (as the same may be amended or supplemented, the "Merger and
Contribution Agreement"); and
WHEREAS, the Shareholder is executing this Agreement as an inducement to
CytRx to enter into and execute the Merger and Contribution Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by CytRx of
the Merger and Contribution Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to CytRx as follows:
(a) The Shareholder is the record and beneficial owner of the number
of shares of Zynaxis Common Stock (such "Shareholder's Common Shares") and
Zynaxis Series A Convertible Preferred Stock (such "Shareholder's Preferred
Shares," and together with Shareholder's Common Shares, such "Shareholder's
Shares") set forth below such Shareholder's name on the signature page hereof.
Except for the Shareholder's Shares, the Shareholder is not the record or
beneficial owner of any shares of Zynaxis Common Stock or Zynaxis Series A
Convertible Preferred Stock ("Zynaxis Stock"). This Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Shareholder, enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby will
result in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction of any
kind to which the Shareholder is a party or by which it is bound or to which the
Shareholder's Shares are subject. If the Shareholder is married and the
Shareholder's Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Shareholder's spouse, enforceable against such person in
accordance with its terms. Performance by the Shareholder of its obligations
hereunder will not violate, or require any consent, approval, or notice under,
any provision of any judgment, order, decree, statute, law, rule or regulation
applicable to the Shareholder or the Shareholder's Shares.
(c) The Shareholder's Preferred Shares and the certificates
representing such Shares are now, and at all times during the term hereof will
be, held by the Shareholder, or by a nominee or custodian for the benefit of
such Shareholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances or proxies
arising hereunder. The Shareholder's Common Shares and the certificates
representing such Shares are now held by the Shareholder, or by
33
a nominee or custodian for the benefit of such Shareholder, free and clear of
all liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except as
established by this Agreement.
(d) With the exception of the agreement between QED and Zynaxis
regarding QED's relationship as Zynaxis's agent for the sale of the Cauldron
Division, no broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that CytRx is
entering into the Merger and Contribution Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder
acknowledges that the irrevocable proxy set forth in Section 4 is granted in
consideration for the execution and delivery of the Merger and Contribution
Agreement by CytRx.
2. Voting Agreements. The Shareholder agrees with, and covenants to, CytRx
as follows:
(a) At any meeting of shareholders of Zynaxis called to vote upon any
of the matters contemplated by the Merger and Contribution Agreement (including,
without limitation, the Charter Amendment and the sale of substantially all of
the assets of Zynaxis as contemplated by the Liquidation Agreement) or at any
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval with respect to any of the matters contemplated by the Merger and
Contribution Agreement is sought (each a "Shareholders' Meeting"), the
Shareholder shall vote (or cause to be voted) any of the Shareholder's Shares
held by the Shareholder at the time of such vote in favor of each of the matters
contemplated by the Merger and Contribution Agreement.
(b) At any meeting of shareholders of Zynaxis or at any adjournment
thereof or in any other circumstances upon which their vote, consent or other
approval is sought, the Shareholder shall vote (or cause to be voted) any of the
Shareholder's Shares held by the Shareholder at the time of such vote against
(i) any merger, consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or winding up of or
by Zynaxis (other than the transactions contemplated by the Merger and
Contribution Agreement), or (ii) any amendment of Zynaxis's Articles of
Incorporation, as amended, or Bylaws or other proposal or transaction involving
Zynaxis or any of its subsidiaries, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent or nullify any of the
transactions contemplated by the Merger and Contribution Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
34
3. Covenants. The Shareholder agrees with, and covenants to, CytRx as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of the
Shareholder's Preferred Shares or any interest therein, (ii) enter into any
contract, option or other agreement or understanding with respect to any
transfer of any or all of the Shareholder's Preferred Shares or any interest
therein, (iii) grant any proxy, power of attorney or other authorization in or
with respect to any of the Shareholder's Shares, except for this Agreement, or
(iv) deposit any of the Shareholder's Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Shareholder's Shares;
provided, however, that the foregoing shall not be deemed to prohibit the
Shareholder from selling any or all of the Shareholder's Common Shares.
(b) The Shareholder hereby waives any rights of appraisal, or rights
to dissent from the transactions contemplated by the Merger and Contribution
Agreement, that such Shareholder may have with respect to any Shareholder's
Shares held by Shareholder at times at which such rights may be exercised
(including, without limitation, any rights arising under Subchapter E of Chapter
25 of the Pennsylvania Business Corporation Law).
(c) The Shareholder shall not, nor shall it permit any investment
banker, attorney or other adviser or representative of the Shareholder to,
directly or indirectly, (i) solicit, initiate or encourage the submission of,
any takeover proposal or (ii) participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or take any
other action to facilitate any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any takeover proposal.
For all purposes hereof, "takeover proposal" means any proposal for a merger or
other business combination involving Zynaxis or any of its subsidiaries or any
proposal or offer to acquire in any manner, directly or indirectly, an equity
interest in any voting securities of, or a substantial portion of the assets of
Zynaxis or any of its subsidiaries, other than the transactions contemplated by
the Merger and Contribution Agreement and other than any transfer expressly
permitted by the proviso to Section 3(a).
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, CytRx
and Xxxx X. Xxxxxxx, President of CytRx, and Xxxx X. Xxxxxxxx, Chief Financial
Officer of CytRx, in their respective capacities as officers of CytRx, and any
individual who shall hereafter succeed to any such office of CytRx, and each of
them individually, the Shareholder's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of the Shareholder, to
vote any of the Shareholder's Shares held by the Shareholder at the time of such
vote, or to grant a consent or approval in respect of any of such Shares held by
the Shareholder at the time such consent or approval is sought (i) in favor of
each of the matters contemplated by the Merger and Contribution Agreement, and
(ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 4 is given in connection with the execution of the Merger
and Contribution Agreement, and that such irrevocable proxy is given to secure
the performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may
35
under no circumstances be revoked. The Shareholder hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 1759 of the Pennsylvania Business
Corporation Act as a proxy coupled with an interest.
5. Certain Events. The Shareholder agrees that this Agreement and
the obligations hereunder shall attach to the Shareholder's Preferred Shares
and shall be binding upon any person or entity to which legal or beneficial
ownership of the Shareholder's Shares shall pass, whether by operation of law
or otherwise, including without limitation the Shareholder's successors or
assigns. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of
Zynaxis affecting the Zynaxis Stock, or the acquisition of additional shares of
Zynaxis Stock or other voting securities of Zynaxis by the Shareholder, the
number of the Shareholder's Shares subject to the terms of this Agreement shall
be adjusted appropriately and this Agreement and the obligations hereunder
shall attach to any additional shares of Zynaxis Stock or other voting
securities of Zynaxis issued to or acquired by the Shareholder.
6. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
7. Further Assurances. The Shareholder shall, upon request of CytRx,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by CytRx to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 of this Agreement in CytRx and the other irrevocable
proxies described therein at the expense of CytRx.
8. Termination. This Agreement, and all rights and obligations of the
parties hereunder; shall terminate upon the first to occur of (x) the closing of
the transactions contemplated by the Merger and Contribution Agreement, or (y)
the date upon which the Merger and Contribution Agreement is terminated in
accordance with its terms; provided that if an "Extension Event" shall have
occurred as of or prior to termination of the Merger and Contribution Agreement,
then, for a period of one year following such termination, (i) the rights and
obligations of the parties hereto under Sections 2, 3(c), 4(a) and 5 hereof
shall continue in full force and effect and (ii) the Shareholder shall not
transfer any or all of the Shareholder's Shares in connection with any Competing
Transaction or takeover proposal. For purposes of the foregoing, an "Extension
Event" shall mean any of the following events: (A) the shareholders meeting to
approve the matters contemplated by the Merger and Contribution Agreement shall
not have been held or the requisite approval of such matters at such meeting by
the holders of Zynaxis Stock shall not have been obtained, or (B) any person
(other than CytRx or any subsidiary of CytRx) shall have made, or disclosed an
intention to make, a takeover proposal or proposal for a Competing Transaction.
9. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger and
Contribution Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to CytRx, to the address set forth in
Section 11.8 of the Merger and
36
Contribution Agreement; and (ii) if to the Shareholder, to its address shown
below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Pennsylvania, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and
that CytRx would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that CytRx
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by
such party.
[Remainder of page intentionally left blank.]
37
IN WITNESS WHEREOF, the undersigned parties have executed and delivered this
Shareholder Voting Agreement as of the day and year first above written.
CYTRX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
President
SHAREHOLDER:
/s/ Alphi Fund L.P.
by Xxxxxx X. Xxxxx,
President of General Partner
Name: Alphi Fund L.P.
Address: 000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Number of Shares
of Zynaxis Common Stock
Subject to Agreement: 293,900
Number of Shares
of Zynaxis Preferred Stock
Subject to Agreement: 150,000
