Exhibit 10.1
VOTING AND SUPPORT AGREEMENT
VOTING AND SUPPORT AGREEMENT, dated as of November 21, 2003 (this
"Agreement"), by and between Xxx Xxxxx and Company, a Delaware corporation
("Parent"), and [__________] ("Stockholder").
W I T N E S S E T H:
WHEREAS, Parent, Genesis Merger Sub, Inc., a Delaware corporation
("Merger Sub") and Applied Molecular Evolution, Inc., a Delaware corporation
(the "Company"), have entered into an Agreement and Plan of Merger, dated as of
the date hereof (as the same may be amended or supplemented, the "Merger
Agreement"), providing for, among other things, the merger of Merger Sub with
and into the Company (the "Merger"), upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, Stockholder beneficially owns
[_____] shares of common stock, par value $0.001 per share ("Company Shares"),
of the Company (such Company Shares, together with any other shares of capital
stock of the Company acquired by Stockholder after the date hereof and during
the term of this Agreement (including through the exercise of any stock options,
warrants or similar instruments), being collectively referred to herein as the
"Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that Stockholder enter into this Agreement
pursuant to which Stockholder shall, among other things, vote all of the Subject
Shares in favor of the proposal to adopt the Merger Agreement;
NOW, THEREFORE, to induce Parent to enter into, and in consideration
of its entering into, the Merger Agreement, and in consideration of the
representations, warranties, covenants and agreements set forth in this
Agreement, and intending to be legally bound hereby, the parties hereto agree as
follows:
Section 1. Irrevocable Proxy.
(a) Stockholder hereby irrevocably grants to, and appoints, Parent
and any individual who shall be designated by Parent, Stockholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of Stockholder, to vote the Subject Shares, or grant a consent or
approval in respect of the Subject Shares, at any meeting of stockholders of the
Company or at any adjournment thereof or in any other circumstances upon which
their vote, consent or other approval is sought, in the manner contemplated by
Sections 4(a)(i) and 4(a)(ii) hereof.
(b) Stockholder represents and warrants that any proxies heretofore
given in respect of the Subject Shares are not irrevocable and that any such
proxies are hereby revoked.
(c) Stockholder understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon Stockholder's execution and delivery
of this Agreement. STOCKHOLDER HEREBY AFFIRMS THAT THE PROXY SET FORTH IN THIS
SECTION 1 IS COUPLED WITH AN
INTEREST AND IS IRREVOCABLE UNTIL SUCH TIME AS THIS AGREEMENT TERMINATES IN
ACCORDANCE WITH ITS TERMS AND THAT NO SUBSEQUENT PROXIES WITH RESPECT TO THE
SUBJECT SHARES SHALL BE GIVEN (AND IF GIVEN SHALL NOT BE EFFECTIVE). Stockholder
hereby further affirms that the irrevocable proxy is given in connection with
the execution of the Merger Agreement and that such irrevocable proxy is given
to secure the performance of the duties of Stockholder under this Agreement.
Stockholder 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 212 of the DGCL. The power of attorney granted by Stockholder is a
durable power of attorney and shall survive the dissolution, bankruptcy, death
or incapacity of Stockholder.
Section 2. Representations and Warranties of Stockholder.
Stockholder hereby represents and warrants to Parent as follows:
(a) Ownership. Stockholder is the record and beneficial owner of,
and has good, valid and marketable title to [______] Company Shares, free and
clear of any Liens whatsoever, except as created by this Agreement. Stockholder
does not own, of record or beneficially, any shares of capital stock of the
Company other than such Company Shares. Stockholder has the sole right to vote
such Company Shares, and none of such Company Shares is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of such Company Shares, except as contemplated by this Agreement.
(b) Authority; No Conflict. Stockholder has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Stockholder and constitutes a valid and binding obligation of Stockholder
enforceable against Stockholder in accordance with its terms except as may be
limited by bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability affecting creditors' rights and by general equity
principles. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, result in any violation of, or constitute
(with or without notice or lapse of time or both) default under, any provision
of any trust agreement, loan or credit agreement, bond, note, mortgage,
indenture, lease, partnership agreement or other contract, agreement,
obligation, commitment, arrangement, understanding, instrument, permit,
concession, franchise or license or any statute, law, ordinance, rule,
regulation, judgment, order, notice or decree applicable to Stockholder or to
any of Stockholder's property or assets.
(c) No Filings; Consents. No consents or approvals of or filings or
registrations by or with respect to Stockholder with any Governmental Entity are
necessary in connection with (i) the execution and delivery by Stockholder of
this Agreement and (ii) the performance by Stockholder of its obligations under
this Agreement, including the grant of the irrevocable proxy pursuant to Section
1(a) hereof.
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Section 3. Representations and Warranties of Parent. Parent hereby
represents and warrants to Stockholder that Parent has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by Parent and constitutes a valid and binding obligation
of Parent enforceable against Parent in accordance with its terms except as may
be limited by bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability affecting creditors' rights and by general equity
principles. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, result in any violation of, or constitute
(with or without notice or lapse of time or both) default under, any provisions
of the certificate of incorporation or by-laws of Parent or any trust agreement,
loan or credit agreement, bond, note, mortgage, indenture, lease or other
contract, agreement, obligation, commitment, arrangement, understanding,
instrument, permit, concession, franchise or license or any statute, law,
ordinance, rule, regulation, judgment, order, notice or decree applicable to
Parent or any of Parent's property or assets.
Section 4. Covenants of Stockholder. Stockholder agrees with Parent
as follows:
(a) Without in any way limiting Stockholder's right to vote the
Subject Shares in its sole discretion with respect to any other matters that may
be submitted to a stockholder vote, consent or other approval (including by
written consent), at any meeting of the stockholders of the Company called upon
to adopt the Merger Agreement and approve the Merger or at any adjournment
thereof or in any other circumstances upon which a vote, consent or other
approval (including written consent) with respect to the Merger Agreement and
the Merger is sought, Stockholder shall vote (or cause to be voted) the Subject
Shares:
(i) in favor of the Merger, the adoption by the stockholders
of the Company of the Merger Agreement and approval of the other
transactions contemplated by the Merger Agreement; and
(ii) against (x) any Takeover Proposal or any merger agreement
or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantially all of the
Company's assets, sale or issuance of securities of the Company or
any of its Subsidiaries, reorganization, joint venture,
recapitalization, dissolution, liquidation or winding up of or by
the Company or any of its Subsidiaries and (y) any amendment of the
Company's certificate of incorporation or by-laws or equivalent
organizational documents or other proposal or transaction involving
the Company or any of its Subsidiaries which amendment or other
proposal or transaction would or could reasonably be expected to
impede, frustrate, prevent, nullify or result in a breach of any
representation, warranty or covenant or any other obligation or
agreement of the Company under or with respect to the Merger, the
Merger Agreement or any of the transactions contemplated by the
Merger Agreement or by this Agreement.
(b) Stockholder agrees not to transfer, sell, assign, exchange,
pledge or otherwise dispose of (including by gift) or encumber any of the
Subject Shares, or to make any
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offer or agreement relating thereto, at any time prior to the termination of
this Agreement. Furthermore, Stockholder shall not, except as contemplated by
this Agreement, directly or indirectly, grant any proxies or powers of attorney
with respect to the Subject Shares, deposit the Subject Shares into a voting
trust or enter into a voting agreement or any other arrangement with respect to
the Subject Shares and shall not commit or agree to take any of the foregoing
actions.
(c) Stockholder shall be deemed to be a Representative at all times
for purposes of Section 6.2 of the Merger Agreement (regardless of whether
Stockholder is in fact a Representative at the relevant time) and shall comply
with the terms of Section 6.2(a) of the Merger Agreement.
(d) Stockholder hereby waives, and agrees not to exercise or assert,
any appraisal or similar rights under Section 262 of the DGCL or other
applicable law in connection with the Merger.
Section 5. Further Assurances. Stockholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as Parent may reasonably
request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
Section 6. Certain Events. Stockholder agrees that this Agreement
and the obligations hereunder shall attach to the Subject Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Subject Shares shall pass, whether by operation of law or otherwise, including
the respective successors of Stockholder. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Company Shares or the acquisition
of additional shares of Company Shares or other voting securities of the Company
by Stockholder (whether by purchase, conversion or otherwise), the number of
Subject Shares shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional or decreased shares of
Company Shares or other voting securities of the Company issued to or acquired
or disposed of by Stockholder.
Section 7. Stockholder Capacity. Stockholder enters into this
Agreement solely in Stockholder's capacity as the record and beneficial owner of
the Subject Shares. If any Stockholder is or becomes during the term hereof a
director or officer of the Company, such Stockholder makes no agreement or
understanding in this Agreement in Stockholder's capacity as such director or
officer. Nothing in this Agreement shall limit or affect any actions taken by
Stockholder in Stockholder's capacity as an officer or director of the Company.
Section 8. No Ownership Interest. Except as expressly set forth in
this Agreement, nothing contained in this Agreement shall be deemed to vest in
Parent any direct or indirect ownership or incidence of ownership of or with
respect to any Subject Shares. All rights, ownership and economic benefits of
and relating to any Subject Shares shall remain and belong to Stockholder, and
Parent shall not have any authority to exercise any power or authority to
manage, direct, superintend, restrict, regulate, govern or administer any of the
policies or operations of the Company or exercise any power or authority to
direct Stockholder in the voting of any of the Subject Shares, except as
otherwise expressly provided in this Agreement.
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Section 9. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned, in whole or in part
(whether by operation of law or otherwise), by Stockholder, on the one hand,
without the prior written consent of Parent nor by Parent, on the other hand,
without the prior written consent of Stockholder, and any attempt to make any
such assignment without such consent shall be null and void; provided that
Parent may assign, in its sole discretion, any or all of its rights, interests
and obligations hereunder to any direct or indirect wholly owned subsidiary of
Parent. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
Section 10. Termination. This Agreement shall terminate, and the
provisions hereof shall be of no further force or effect, upon the earlier of
the Effective Time or the termination of the Merger Agreement in accordance with
Article VIII thereof; provided, however, that notwithstanding anything to the
contrary contained in this Agreement, no party hereto shall be relieved of or
released from any liabilities or damages arising out of a willful breach of its
covenants or a willful breach of its representations or warranties contained in
this Agreement prior to the termination of this Agreement.
Section 11. General Provisions.
(a) Modification. No supplement, modification or amendment of this
Agreement will be binding unless made in a written instrument that is signed by
all of the parties hereto and that specifically refers to this Agreement.
(b) Costs and Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expenses.
(c) Notice. All notices and other communications hereunder shall be
in writing and shall be deemed given upon receipt by the parties. All notices
hereunder shall be delivered to Parent in accordance with Section 9.2 of the
Merger Agreement and to Stockholder at its address set forth on the Company's
stock ledger (or at such other address for a party as shall be specified by like
notice).
(d) Interpretation. When a reference is made in this Agreement or to
a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. 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. This Agreement is the result of the joint efforts of Parent and
Stockholder, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of the parties and there shall be no
construction against any party based on any presumption of that party's
involvement in the drafting thereof. The words "include", "includes" or
"including" shall be deemed to be followed by the words "without limitation."
The term "ordinary course of business" (or similar terms) shall be deemed to be
followed by the words "consistent with past practice." Terms not defined herein
shall have such meaning as set forth in the Merger Agreement.
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(e) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(f) Entire Agreement; No Third Party Beneficiaries. This Agreement
(including the documents and the instruments referred to herein) (i) 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 and (ii) is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(h) Enforcement. The parties agree that irreparable damage would
occur 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 the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, in addition to any other remedy to
which they are entitled at law or in equity. The parties hereby (i) submit to
the jurisdiction of any federal or state court sitting in the State of Delaware,
(ii) agree not to object to venue in such courts or to claim that such forum is
inconvenient and (iii) agree that notice or the service of process in any
proceeding shall be properly served or delivered if delivered in the manner
contemplated by Section 11(c) hereof. IN ADDITION, EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR PROCEEDING
RELATED TO OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY. Without limiting the generality of the foregoing, the
parties hereto expressly agree that the obligations of Stockholder set forth in
Section 4 hereof shall be subject to the foregoing provisions of this Section
11(h).
(i) Severability. This Agreement shall be deemed severable; the
invalidity or unenforceability of any term or provision of this Agreement shall
not affect the validity or enforceability of the balance of this Agreement or of
any other term hereof, which shall remain in full force and effect. If of any of
the provisions hereof are determined to be invalid or unenforceable, the parties
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed as of the date first written above.
XXX XXXXX AND COMPANY
By:
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[Stockholder]
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Voting and Support Agreement
Counterpart Signature Page
