VOTING AGREEMENT
Exhibit 10.1
VOTING AGREEMENT (this “Agreement”), dated as of November
_____
, 2007, between the
undersigned stockholder (“Stockholder”) of Pharmion Corporation, a Delaware corporation
(the “Company”), and Celgene Corporation, a Delaware corporation (“Parent”).
WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent
and Cobalt Acquisition LLC, a wholly-owned subsidiary of Parent (“Merger Sub”), have
entered, or will enter, into an Agreement and Plan of Merger (as the same may be amended from time
to time, the “Merger Agreement”), providing for, among other things, the merger (the
“Merger”) of Merger Sub and the Company pursuant to the terms and conditions of the Merger
Agreement;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has
requested that Stockholder make certain representations, warranties, covenants and agreements with
respect to the shares of common stock, par value $.001 per share, of the Company (“Company
Common Stock”) beneficially owned by Stockholder and set forth below Stockholder’s signature on
the signature page hereto (the “Original Shares” and, together with any additional shares
of Company Common Stock pursuant to Section 6 hereof, the “Stockholder Shares”); and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, Stockholder is willing
to make certain representations, warranties, covenants and agreements with respect to the
Stockholder Shares.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
Section 1. Representations of Stockholder. Stockholder represents and warrants to
Parent that (a) Stockholder owns beneficially (as such term is defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) all of the Original
Shares free and clear of all liens, claims, charges, security interests or other encumbrances of
any kind or nature and, except pursuant hereto, there are no options, warrants or other rights,
agreements, arrangements or commitments of any character to which Stockholder is a party relating
to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts
or voting agreements with respect to the Original Shares, (b) Stockholder does not beneficially own
any shares of Company Common Stock other than (i) the Original Shares and (ii) any options,
warrants or other rights to acquire any additional shares of Company Common Stock or any security
exercisable for or convertible into shares of Company Common Stock (collectively,
“Options”), and (c) Stockholder has full power and authority to enter into, execute and
deliver this Agreement and to perform fully Stockholder’s obligations hereunder. This Agreement
has been duly executed and delivered by Stockholder and constitutes the legal, valid and binding
obligation of Stockholder in accordance with its terms.
Section 2. Agreement to Vote Shares; Irrevocable Proxy.
(a) Stockholder agrees during the term of this Agreement to vote the Stockholder Shares, and
to cause any holder of record of Stockholder Shares to vote, (i) in favor of approval of the
adoption of the Merger Agreement and approval of the Merger at every meeting of the stockholders of
the Company at which such matters are considered and at every adjournment or postponement thereof,
(ii) against any Alternative Transaction, including a Superior Proposal (each such term used in
this Section 2 and elsewhere in this Agreement shall have its meaning as defined in the Merger
Agreement) and (iii) against any action or agreement that would result in a breach in any material
respect of any representation, warranty, covenant, agreement or any other obligation of the Company
under the Merger Agreement.
(b) Stockholder hereby appoints Parent and any designee of Parent, and each of them
individually, its proxies and attorneys-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent during the term of this Agreement with respect to
the Stockholder Shares in accordance with Section 2(a). This proxy and power of attorney is given
to secure the performance of the duties of Stockholder under this Agreement. Stockholder shall
take such further action or execute such other instruments as may be necessary to effectuate the
intent of this proxy. This proxy and power of attorney granted by Stockholder shall be irrevocable
during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law
to support an irrevocable proxy and shall revoke any and all prior proxies granted by Stockholder
with respect to the Stockholder Shares. The power of attorney granted by Stockholder herein is a
durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of
Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the
termination of this Agreement.
Section 3. No Voting Trusts or Other Arrangements. Stockholder agrees that
Stockholder will not, and will not permit any entity under Stockholder’s control to, deposit any of
the Stockholder Shares in a voting trust, grant any proxies with respect to the Stockholder Shares
or subject any of the Stockholder Shares to any arrangement with respect to the voting of the
Stockholder Shares other than agreements entered into with Parent.
Section 4. No Proxy Solicitations. Stockholder, solely in Stockholder’s capacity as a
stockholder of the Company, agrees that, during the term of this Agreement, Stockholder will not,
and will not permit any entity under Stockholder’s control to, (a) solicit proxies or become a
“participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange
Act) in favor or furtherance of, or otherwise to facilitate, an Alternative Transaction, including
a Superior Proposal, or otherwise assist any party in connection with an Alternative Transaction,
including a Superior Proposal, (b) directly or indirectly initiate or cooperate in or knowingly
encourage, a stockholders’ vote or action by consent of the Company’s stockholders in favor or
furtherance of, or otherwise to knowingly facilitate, an Alternative Transaction, including a
Superior Proposal, or (c) become a member of a “group” (as such term is used in Rule 13d-5 under
the Exchange Act) with respect to any voting securities of the Company for the purpose of taking
any action in favor or furtherance of, or otherwise to facilitate, an Acquisition Transaction,
including a Superior Proposal; provided, however, that nothing in this Agreement
shall prevent Stockholder from taking any action or omitting to take any action solely as a member
of the Board of Directors of the Company (or any committee thereof) (if Stockholder
holds such office) or, at the direction of the Board of Directors of the Company (or any
committee thereof), as an officer of the Company or any of its subsidiaries (if Stockholder holds
such office).
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Section 5. Transfer and Encumbrance. Stockholder agrees not to transfer, sell, offer,
exchange, pledge or otherwise dispose of or encumber any of the Stockholder Shares on or after the
date hereof and during the term of this Agreement; provided, however, that if the
Stockholder Shares are in a brokerage or other account where the Stockholder Shares may be loaned
to others, the Stockholder shall, as soon as practicable after the date hereof, transfer the
Stockholder Shares into an account where the Stockholder Shares may not be loaned to others; and
provided, further, that: (a) the foregoing restrictions shall not prohibit any
transfer of Stockholder Shares under Stockholder’s will or pursuant to the laws of descent and
distribution or any such transfer to an immediate family member or a family trust for the benefit
of immediate family member(s), so long as, in each case, as a precondition to such transfer the
transferee: (i) executes a counterpart of this Agreement; and (ii) agrees in writing to hold such
Stockholder Shares (or interest in such Stockholder Shares) subject to all of the terms and
provisions of this Agreement; (b) a Stockholder may, with the consent of Parent (which consent
shall not be unreasonably withheld), pledge or encumber any Stockholder Shares so long as such
pledge or encumbrance would not impair such Stockholder’s ability to perform its obligations under
this Agreement; and (c) if Stockholder is a corporation, limited liability company or partnership,
Stockholder may transfer up to 20% of its Stockholder Shares to its stockholders, members or
partners, as applicable.
Section 6. Additional Shares. Stockholder agrees that all shares of Company Common
Stock that Stockholder purchases, acquires the right to vote or otherwise acquires beneficial
ownership (as defined in Rule 13d-3 under the Exchange Act, but excluding shares of Company Common
Stock underlying unexercised Options) of after the execution of this Agreement shall be subject to
the terms of this Agreement and shall constitute Stockholder Shares for all purposes of this
Agreement.
Section 7. Specific Performance. Each party hereto acknowledges that it will be
impossible to measure in money the damage to the other party if a party hereto fails to comply with
any of the obligations imposed by this Agreement, that every such obligation is material and that,
in the event of any such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party hereto agrees that injunctive relief or other equitable remedy,
in addition to remedies at law or damages, is the appropriate remedy for any such failure and will
not oppose the seeking of such relief on the basis that the other party has an adequate remedy at
law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with the other party’s seeking or obtaining such
equitable relief.
Section 8. No Agreement as Director or Officer. Stockholder makes no agreement or
understanding in this Agreement in Stockholder’s capacity as a director or officer of the Company
or any of its subsidiaries (if Stockholder holds such office), and nothing in this Agreement: (a)
will limit or affect any actions or omissions taken by Stockholder in stockholder’s capacity as
such a director or officer, including in exercising rights under the Merger Agreement, and no such
actions or omissions shall be deemed a breach of this
Agreement or (b) will be construed to prohibit, limit or restrict Stockholder from exercising
Stockholder’s fiduciary duties as an officer or director to the Company or its stockholders.
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Section 9. Entire Agreement. This Agreement supersedes all prior agreements, written
or oral, between the parties hereto with respect to the subject matter hereof and contains the
entire agreement between the parties with respect to the subject matter hereof. This Agreement may
not be amended or supplemented, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by both of the parties hereto. No waiver of any provisions hereof by
either party shall be deemed a waiver of any other provisions hereof by such party, nor shall any
such waiver be deemed a continuing waiver of any provision hereof by such party.
Section 10. Notices. All notices, requests, claims, demands or other communications
hereunder shall be in writing and shall be deemed given when delivered personally, upon receipt of
a transmission confirmation if sent by telecopy or like transmission and on the next business day
when sent by Federal Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as shall be specified by
like notice):
If to Parent:
Celgene Corporation
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Hugin, President and Chief Operating Officer
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Hugin, President and Chief Operating Officer
If to Stockholder, to the address or telecopy number set forth for Stockholder on the signature
page hereof.
Section 11. Miscellaneous.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED,
CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF. The parties hereby irrevocably submit to the
jurisdiction of the courts of the State of Delaware and the Federal courts of the United States of
America located in the State of Delaware solely in respect of the interpretation and enforcement of
the provisions of this Agreement and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable in said courts or
that the venue thereof may not be appropriate or that this Agreement may not be enforced in or by
such courts, and the parties hereto irrevocably agree that all claims with respect to such action
or proceeding shall be heard and determined in such a Delaware State or Federal court. The parties
hereby consent to and grant any such court jurisdiction over the person of such parties and over
the subject matter of such dispute and agree
that mailing of process or other papers in connection with any such action or proceeding in
the manner provided in Section 10 or in such other manner as may be permitted by law shall be valid
and sufficient service thereof.
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EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT
IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii)
EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11(a).
(b) If any provision of this Agreement or the application of such provision to any person or
circumstances shall be held invalid or unenforceable by a court of competent jurisdiction, such
provision or application shall be unenforceable only to the extent of such invalidity or
unenforceability and the remainder of the provision held invalid or unenforceable and the
application of such provision to persons or circumstances, other than the party as to which it is
held invalid, and the remainder of this Agreement shall not be affected.
(c) This Agreement may be executed in one or more counterparts, each of which shall be deemed
to be an original but all of which together shall constitute one and the same instrument.
(d) This Agreement shall terminate upon the earliest to occur of (i) the Effective Time (as
defined in the Merger Agreement), (ii) the date on which the Merger Agreement is terminated in
accordance with its terms and (iii) the date of any material modification, waiver or amendment of
the Merger Agreement that affects adversely the consideration payable to stockholders of the
Company pursuant to the Merger Agreement as in effect on the date hereof
(e) Each party hereto shall execute and deliver such additional documents as may be necessary
or desirable to effect the transactions contemplated by this Agreement.
(f) All Section headings herein are for convenience of reference only and are not part of this
Agreement, and no construction or reference shall be derived therefrom.
(g) The obligations of Stockholder set forth in this Agreement shall not be effective or
binding upon Stockholder until after such time as the Merger Agreement is executed and delivered by
the Company, Parent and Merger Sub, and the parties agree that there is not and
has not been any other agreement, arrangement or understanding between the parties hereto with
respect to the matters set forth herein.
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(h) Neither party to this Agreement may assign any of its rights or obligations under this
Agreement without the prior written consent of the other party hereto. Any assignment contrary to
the provisions of this Section 11(h) shall be null and void.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the
date first written above.
| CELGENE CORPORATION | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| STOCKHOLDER | ||||
| Name: | ||||
| Number of Shares of Company Common Stock | ||||
| Beneficially Owned as of the Date of this | ||||
| Agreement: | ||||
| Street Address | ||||
| City/State/Zip Code | ||||
| Fax: | ||||
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