EX-10.1 3 dex101.htm VOTING AGREEMENT VOTING AGREEMENT
Exhibit 10.1
This VOTING AGREEMENT (this “Agreement”) is entered into as of June 30, 2010, by and among Celgene Corporation, a Delaware corporation (“Parent”), Artistry Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), and the Persons whose names are set forth on the signature pages hereto under the caption “Stockholders” (each individually a “Stockholder” and, collectively, the “Stockholders”).
WHEREAS, as of the date of this Agreement, each Stockholder owns the number of shares of Common Stock, par value $.001 per share (the “Company Stock”), of Abraxis BioScience, Inc., a Delaware corporation (the “Company”), set forth opposite such Stockholder’s name on Schedule A attached hereto;
ARTICLE I
SECTION 1.2 Other Definitions. For purposes of this Agreement:
(a) “Company Options” means options to acquire Company Stock granted to a Stockholder by the Company and held by a Stockholder as of the date of this Agreement as set forth on Schedule A.
(b) “Company RSUs” means restricted stock units with respect to Company Stock granted to a stockholder by the Company and held by a Stockholder as of the date of this Agreement as set forth on Schedule A.
(c) “Immediate Family” means lineal descendants (whether by blood or marriage), ancestral forebears, current and former spouses, and persons related by blood, adoption or marriage to any of the foregoing.
(d) “New Shares” means any shares of Company Stock (other than Owned Shares) acquired by a Stockholder at any time during the Voting Period.
(e) “Option Shares” means any shares of Company Stock issued or issuable upon exercise of Company Options.
(f) “Owned Shares” means all of the shares of Company Stock owned by such Stockholder as of the date of this Agreement as set forth on Schedule A.
(g) “Permitted Transferee” means PSS and any PSS Entity or any charitable foundation or organization, in each case only if such parties agree to be bound by the terms of this Agreement.
(h) “PSS” means Xx. Xxxxxxx Soon-Shiong.
(i) “PSS Entity” means any trust for the benefit of PSS or any members of PSS’ Immediate Family and any other entity in which PSS or any members of PSS’ Immediate Family separately or collectively hold, directly or indirectly, a majority of the outstanding equity interests.
(j) “Representative” means, with respect to any particular Person, the officers, directors, employees, trustees, investment bankers, attorneys and other advisors or representatives of such Person.
(k) “RSU Shares” means any shares of Company Stock issued or issuable upon vesting of Company RSUs.
(l) “Transfer” means sell, transfer, tender, assign, pledge, encumber or otherwise dispose.
(m) “Voting Period” means the period from and including the date of this Agreement through and including the earliest to occur of (i) the Effective Time, and (ii) the termination of the Merger Agreement in accordance with its terms.
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ARTICLE II
VOTING AGREEMENT AND IRREVOCABLE PROXY
SECTION 2.1 Agreement to Vote.
(a) Each Stockholder hereby agrees that, during the Voting Period, such Stockholder shall vote or execute consents, as applicable, with respect to the Owned Shares and any New Shares owned by such Stockholder as of the applicable record date (or cause to be voted or a consent to be executed with respect to the Owned Shares or any New Shares owned by such Stockholder as of the applicable record date) in favor of the approval and adoption of the Merger Agreement and the transactions contemplated by the Merger Agreement, at any meeting (or any adjournment or postponement thereof) of, or in connection with any proposed action by written consent of, the holders of Company Stock at or in connection with which any of the holders vote or execute consents with respect to any of the foregoing matters.
(b) Subject to Section 3.2 hereof, each Stockholder hereby agrees that, during the Voting Period, such Stockholder shall vote or execute consents, as applicable, with respect to the Owned Shares and any New Shares owned by such Stockholder as of the applicable record date (or cause to be voted or a consent to be executed with respect to the Owned Shares and any New Shares owned by such Stockholder as of the applicable record date) against each of the matters set forth in clauses (i), (ii), (iii) and (iv) below at any meeting (or any adjournment or postponement thereof) of, or in connection with any proposed action by written consent of, the holders of Company Stock at or in connection with which any of the holders vote or execute consents with respect to any of the following matters:
(i) any merger agreement or merger (other than the Merger Agreement, the Merger or any business combination or transaction with Parent or any of its affiliates), consolidation, combination, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other business combination or extraordinary corporate transaction involving the Company or any of its Subsidiaries, or any sale, lease or transfer of a material amount of assets of the Company or any of its Subsidiaries;
(ii) any amendment of the Company’s certificate of incorporation, as amended to date, unless such amendment is consented to by Parent;
(iii) any action, proposal, transaction or agreement that would reasonably be expected to result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement or of such Stockholder contained in this Agreement; and
(iv) any action, proposal, transaction or agreement involving the Company or any of its Subsidiaries that would reasonably be expected to prevent,
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impede, frustrate, interfere with, delay, postpone or adversely affect the Merger and the other transactions contemplated by the Merger Agreement.
(c) Any vote required to be cast or consent required to be executed pursuant to this Section 2.1 shall be cast or executed in accordance with the applicable procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present (if applicable) and for purposes of recording the results of that vote or consent. Nothing contained in this Section 2.1 shall require any Stockholder to vote or execute any consent with respect to any Option Shares or RSU Shares not issued to the Stockholder prior to the applicable record date for that vote or consent.
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ARTICLE III
SECTION 3.1 Voting Period Restrictions. Each Stockholder agrees that such Stockholder shall not, during the Voting Period, (i) Transfer any or all of such Stockholder’s Owned Shares or New Shares, or any interest therein, or enter into any agreement with respect to the Transfer of any or all of such Stockholder’s Owned Shares or New Shares, or any interest therein, or (ii) except pursuant to the terms of this Agreement, grant any proxies or powers of attorney, deposit any Owned Shares or New Shares into a voting trust or enter into a voting agreement with respect to any Owned Shares or New Shares; provided that the foregoing shall not prevent (a) the Transfer of Owned Shares or New Shares upon the death of such Stockholder pursuant to the terms of any trust or will of such Stockholder or by the laws of intestate succession, but only if, and any such Transfer shall be void unless, the transferee executes and delivers to Parent an agreement to be bound by the terms of this Agreement to the same extent as such Stockholder, (b) the Transfer of Owned Shares or New Shares to a Permitted Transferee, (c) the Transfer of Owned Shares or New Shares solely in connection with the payment of the exercise price and/or the satisfaction of any tax withholding obligation arising from the exercise of any Company Option or the vesting of any Company RSU, (d) the conversion of any Owned Shares and New Shares into the right to receive the Merger Consideration pursuant to the Merger in accordance with the terms of the Merger Agreement, or (e) the granting of proxies to vote Owned Shares or New Shares with respect to the election of directors and ratification of the appointment of the Company’s auditors at the Company’s annual meeting of Stockholders, in accordance with the recommendation of the Board of Directors of the Company.
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(and in any event within 24 hours) after receipt of any Acquisition Proposal or any request for information or inquiry which could reasonably be expected to lead to an Acquisition Proposal. The written notice shall include the identity of the Person making such Acquisition Proposal, request or inquiry, the material terms of the Acquisition Proposal, request or inquiry (including any material written amendments or modifications, or any proposed material written amendments or modifications, thereto), and the Stockholder shall keep Parent reasonably informed on a current basis of any material changes with respect to such Acquisition Proposal, request or inquiry.
SECTION 3.3 General Covenants. Each Stockholder agrees that such Stockholder shall not:
(a) enter into any agreement, commitment, letter of intent, agreement in principle, or understanding with any Person or take any other action that violates or conflicts with or would reasonably be expected to violate or conflict with, or result in or give rise to a violation of or conflict with, such Stockholder’s covenants and obligations under this Agreement or make any of its representations and warranties contained herein untrue or incorrect; or
(b) take any action that could restrict or otherwise affect such Stockholder’s legal power, authority and right to comply with and perform such Stockholder’s covenants and obligations under this Agreement.
SECTION 3.5 Letter of Transmittal and Delivery of Merger Consideration. Parent agrees to provide the Stockholders a copy of the letter of transmittal referenced in Section 2.2 of the Merger Agreement a reasonable time period prior to the anticipated Closing Date to allow the Stockholders to complete the letter of transmittal and provide such letter of transmittal to the Paying Agent prior to or on the Closing Date. Parent agrees to use reasonable best efforts to cause the Paying Agent to deliver by wire transfer of immediately available funds the Merger Consideration to which the Stockholders are entitled under the terms of the Merger Agreement on the same date as the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to Parent and Sub as follows:
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authorized, executed and delivered by such Stockholder and, assuming it has been duly and validly authorized, executed and delivered by Parent and Sub, constitutes a legal, valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms, except to the extent that enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditor’s rights generally, and (ii) general principles of equity.
SECTION 4.2 Ownership of Shares. As of the date hereof, all Owned Shares, Company Options and Company RSUs owned by such Stockholder are listed on Schedule A attached hereto. Such Stockholder (a) is the sole beneficial owner of all of the Owned Shares, Company Options and Company RSUs listed opposite such Stockholder’s name on Schedule A hereto free and clear of any Liens, voting agreements or commitments of every kind that would reasonably be expected to violate or conflict with, or result in or give rise to a violation of or conflict with, or adversely affect the exercise or fulfillment of, such Stockholder’s covenants and obligations under this Agreement, and (b) has the sole power to vote (or cause to be voted or consents to be executed) and to dispose of (or cause to be disposed of) such Owned Shares without restriction, and no proxies through and including the date hereof given in respect of any or all of such Stockholder’s Owned Shares, Company Options or Company RSUs are irrevocable and any such proxies have been revoked.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Each of Parent and Sub hereby represent and warrant to the Stockholders as follows:
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ARTICLE VI
This Agreement shall terminate upon the earliest to occur of (i) the Effective Time, (ii) any material amendment to the Merger Agreement that is adverse to the Stockholders that has not been approved by the Stockholders (it being understood that any decrease in or change in form of the Merger Consideration shall constitute a material amendment to the Merger Agreement that is adverse to the Stockholders), and (iii) the termination of the Merger Agreement in accordance with its terms. Upon the termination of this Agreement, neither Parent, Sub nor the Stockholders shall have any rights or obligations hereunder and this Agreement shall become null and void and have no effect; provided, that, with respect to termination pursuant to clause (i) above, Sections 7.1, 7.3 and 7.5 through 7.12 shall survive such termination. Notwithstanding the foregoing, termination of this Agreement shall not prevent any party from seeking any remedies (at law or in equity) against any other party for that party’s breach of any of the terms of this Agreement prior to the date of termination.
ARTICLE VII
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(a) If to the Parent or Sub, addressed to it at:
Celgene Corporation
00 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Tel: 000.000.0000
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Fax: 000.000.0000
Attention: Xxxxxx Xxxxxxxxxx, Senior Vice President Business
Development xxxxxxxxxxx@xxxxxxx.xxx
with copies to:
Celgene Corporation
00 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attention: Xxxxxx Xxxxxx, Corporate Counsel
xxxxxxx@xxxxxxx.xxx
and a copy (which shall not constitute notice) to:
Xxxxx Day
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attention: Xxxx X. Xxxxxx, Esq.
xxxxxxx@xxxxxxxx.xxx
Xxxxx Xxxxxxxx, Esq.
xxxxxxxxxx@xxxxxxxx.xxx
(b) If to the Stockholders, addressed to them at:
Abraxis BioScience Inc.
00000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attention: Xx. Xxxxxxx Soon-Shiong, Executive Chairman
xxx@xxxxxxxxxx.xxx
with copies to:
Abraxis BioScience Inc.
00000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attention: Xxxxxxx Xxx, General Counsel
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XXxx@xxxxxxxxxx.xxx
and a copy (which shall not constitute notice) to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000.000.0000
Fax: 000.000.0000
Attention: Xxxxxx Xxxxxxx, Esq.
xxxxxx.xxxxxxx@xxxxxxxxxx.xxx
Xxxxx Xxxxxxx, Esq.
xxxxx.xxxxxxx@xxxxxxxxxx.xxx
or to that other address as any party shall specify by written notice so given, and notice shall be deemed to have been delivered as of the date so telecommunicated or personally delivered.
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to confer on any Person (other than, in the case of Parent and Sub, their respective successors and assigns and, in the case of the Stockholders, the Stockholders’ successors, assigns, heirs, executors and administrators) any rights, remedies, obligations or liabilities under or by reason of this Agreement. The Stockholders shall take any further action and execute any other instruments as may be reasonably requested by Parent to effectuate the intent of this Agreement.
SECTION 7.11 Governing Law and Consent to Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its rules of conflict of laws. The Stockholders hereby irrevocably and unconditionally consent to submit to the jurisdiction of the federal courts located in the State of Delaware or any Delaware state courts (and, if appropriate, appellate courts therefrom) in connection with any action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby (and agree not to commence any suit, action or proceeding relating thereto except in those courts), waive any defense or objection they may have or hereafter have relating to the laying of venue of any suit, action or proceeding in any such courts and agree not to plead or claim that any suit, action or proceeding brought therein has been brought in an inconvenient forum.
(Signature page follows.)
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CELGENE CORPORATION | ||||||
By: | /s/ Xxxxxx X. Hugin | |||||
Name: | Xxxxxx X. Hugin | |||||
Title: | Chief Executive Officer | |||||
ARTISTRY ACQUISITION CORP. | ||||||
By: | /s/ Xxxxxxx Xxxxxxx | |||||
Name: | Xxxxxxx Xxxxxxx | |||||
Title: | Secretary and Treasurer |
STOCKHOLDERS: | ||||
XX. XXXXXXX SOON-SHIONG | ||||
/s/ Xxxxxxx Soon-Shiong | ||||
CALIFORNIA CAPITAL LP | ||||
By: | Themba LLC, its general partner | |||
By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Manager | |||
XXXXXXX SOON-SHIONG 2009 GRAT 1 | ||||
By: | /s/ Xxxxxxx Soon-Shiong | |||
Name: | Xxxxxxx Soon-Shiong | |||
Title: | Trustee |
[Signature Page to Voting Agreement]
XXXXXXX SOON-SHIONG 2009 GRAT 2 | ||||
By: | /s/ Xxxxxxx Soon-Shiong | |||
Name: | Xxxxxxx Soon-Shiong | |||
Title: | Trustee | |||
XXXXXXX X. SOON-SHIONG GRAT 1 | ||||
By: | /s/ Xxxxxxx X. Xxxx Soon-Shiong | |||
Name: | Xxxxxxx X. Xxxx Soon-Shiong | |||
Title: | Trustee | |||
XXXXXXX X. SOON-SHIONG GRAT 2 | ||||
By: | /s/ Xxxxxxx X. Xxxx Soon-Shiong | |||
Name: | Xxxxxxx X. Xxxx Soon-Shiong | |||
Title: | Trustee | |||
SOON-SHIONG COMMUNITY PROPERTY REVOCABLE TRUST | ||||
By: | /s/ Xxxxxxx Soon-Shiong | |||
Name: | Xxxxxxx Soon-Shiong | |||
Title: | Trustee | |||
By: | /s/ Xxxxxxx X. Xxxx Soon-Shiong | |||
Name: | Xxxxxxx X. Xxxx Soon-Shiong | |||
Title: | Trustee |
[Signature Page to Voting Agreement]
THE CHAN SOON-SHIONG FAMILY FOUNDATION | ||||
By: | /s/ Xxxxxxx Xxxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxxx | |||
Title: | Executive Vice President |
[Signature Page to Voting Agreement]
CALIFORNIA CAPITAL TRUST | ||||
By: | /s/ Xxxxxxx Soon-Shiong | |||
Name: | Xxxxxxx Soon-Shiong | |||
Title: | Trustee | |||
By: | /s/ Xxxxxxx X. Xxxx Soon-Shiong | |||
Name: | Xxxxxxx X. Xxxx Soon-Shiong | |||
Title: | Trustee | |||
By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Trustee |
I acknowledge that I have read the Voting Agreement, dated as of June 30, 2010, among by and among Celgene Corporation, a Delaware corporation, Artistry Acquisition Corp., a Delaware corporation, and the other parties thereto, and understand its contents. I am aware that by its provisions all or part of the shares of common stock, par value $.001 per share, of Abraxis BioScience, Inc., a Delaware corporation, held by my spouse, Xx. Xxxxxxx Soon-Shiong, including my community interest in such shares, if any, are subject to the provisions of such agreement.
XXXXXXX X. XXXX SOON-SHIONG |
/s/ Xxxxxxx X. Xxxx Soon-Shiong |
[Signature Page to Voting Agreement]
SCHEDULE A
STOCKHOLDERS
Stockholder | Owned Shares | Company Options | Company RSUs | ||||
Xx. Xxxxxxx Soon-Shiong Dr. Soon-Shiong may be deemed the beneficial owner | 183,635 | 1 | 206,204 | ||||
California Capital LP | 7,987,159 | ||||||
Xxxxxxx Soon-Shiong 2009 GRAT 1 | 5,759,109 | ||||||
Xxxxxxx Soon-Shiong 2009 GRAT 2 | 5,759,109 | ||||||
Xxxxxxx X. Soon-Shiong GRAT 1 | 5,759,109 | ||||||
Xxxxxxx X. Soon-Shiong GRAT 2 | 5,759,110 | ||||||
Soon-Shiong Community Property Revocable Trust | 716,916 | ||||||
California Capital Trust | 144,555 | ||||||
The Chan Soon-Shiong Family Foundation | 1,301,000 | ||||||
Total: | 33,186,067 | 183,635 | 206,204 | ||||
1 | Includes 29,545 vested and 154,090 unvested Company Options as of the date hereof. |