EXHIBIT 1
FORM OF
VOTING AGREEMENT AND IRREVOCABLE PROXY
([NAME OF STOCKHOLDER])
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY (this "Agreement") is
entered into as of March 21, 2000 by Celltech Group plc, a company incorporated
under the laws of England ("Parent"), CGP Acquisition Corp., a Delaware
corporation ("Merger Subsidiary"), and ________________ (the "Stockholder").
WHEREAS, Parent, Merger Subsidiary and Cistron Biotechnology,
Inc., a Delaware corporation (the "Company"), will enter into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), pursuant
to which Merger Subsidiary will be merged with and into the Company, with the
Company as the surviving corporation of such merger (the "Merger") (all
capitalized terms used but not defined herein shall have the meanings given such
terms in the Merger Agreement);
WHEREAS, the Stockholder is an officer and/or director of the
Company and the beneficial owner of ___________ outstanding Shares; and
WHEREAS, the Stockholder desires to execute and deliver this
Agreement solely in his capacity as a holder of Shares.
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. DISPOSITION OF SHARES
During the period from the date hereof through the earlier of (i)
the date on which the Merger is consummated or (ii) 30 days after the date on
which the Merger Agreement is terminated according to its terms (such period
hereinafter referred to as the "Term"), the Stockholder shall not, directly or
indirectly, and shall cause each record holder not to, directly or indirectly,
(a) sell, transfer, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other agreement or understanding with respect to
the sale, transfer, pledge, encumbrance, assignment or other disposition of, any
Shares over which he has or hereafter (until the date that this Agreement is
terminated) shall have voting control ("Controlled Shares"), (b) transfer or
voluntarily relinquish the voting rights with respect to any Shares, or grant
any proxies for any Shares with respect to any matters described in Section 2(a)
hereof (other than a proxy directing the holder thereof to vote the Controlled
Shares in a manner required by Section 2(a) hereof), (c) deposit any Shares into
a voting trust or enter into a voting agreement with respect to any Shares with
respect to any of the matters described in Section 2(a) hereof, or tender any
Shares in a transaction other than a transaction contemplated by the Merger
Agreement, or (d) take any action which is intended to have the effect of
preventing or disabling the Stockholder from performing its obligations under
this Agreement; provided, however, that nothing herein shall prevent the sale,
transfer, pledge, encumbrance, assignment or other disposition of any of such
Shares, provided that the purchaser, transferee, pledgee or assignee thereof
agrees in writing to be bound by the terms of this Agreement.
Section 2. VOTING AND IRREVOCABLE PROXY
(a) During the Term, the Stockholder shall cast or cause to be
cast all votes attributable to the Controlled Shares, at any annual or special
meeting of Stockholders of the Company, including any adjournments or
postponements thereof, or in connection with any written consent or other vote
of Stockholders, (i) in favor of adoption of the Merger Agreement and approval
of the Merger and the other transactions contemplated by the Merger Agreement
(including any amendments or modifications of the terms of the Merger Agreement
approved by the board of directors of the Company that would not materially
adversely affect the Stockholder in his capacity as beneficial owner of Shares)
and (ii) against approval or adoption of any action or agreement (other than the
Merger Agreement or the transactions contemplated thereby) made or taken in
opposition to or in competition with the Merger.
(b) The Stockholder hereby constitutes and appoints Merger
Subsidiary, which shall act by and through Xxxxx Xxxxx, Xxxx Xxxxxx or Xxx
Xxxxxxxxx (each, a "Proxy Holder"), and each of them, with full power of
substitution, his true and lawful proxy and attorney-in-fact to vote at any
meeting or other form of action of Stockholders of the Company referred to in
Section 2(a) hereof, all of his Controlled Shares as of the date of such meeting
or action (i) in favor of those matters set forth in Section 2(a)(i) hereof, and
(ii) against those matters set forth in Section 2(a)(ii) hereof. Such proxy
shall be limited to the power to vote such Controlled Shares in the manner set
forth in the preceding sentence and shall not extend to other matters. The
Stockholder acknowledges that the proxy granted hereby is coupled with an
interest and is irrevocable to the full extent permitted by the DGCL.
(c) The Stockholder will retain the right to vote his Controlled
Shares, in his sole discretion, on all matters other than those described in
Section 2(a) hereof, and the Stockholder may grant proxies and enter into voting
agreements or voting trusts for his Shares in respect of such other matters.
Section 3. NON SOLICITATION
During the Term, the Stockholder (a) shall not, and shall not
permit any of his Affiliates, agents, investment bankers, financial advisors,
attorneys, accountants, brokers, finders or other representatives retained by it
to (i) invite, initiate, solicit, respond to or encourage, directly or
indirectly, any inquiries, proposals, discussions or negotiations or the making
or implementation of any Acquisition Proposal, or (ii) engage in any discussions
or negotiations with or provide any confidential or non-public information or
data to, any person relating to an Acquisition Proposal, or otherwise facilitate
any effort or attempt to make or implement an Acquisition Proposal; and (b)
shall notify Parent immediately if the Stockholder receives any such inquiries
or proposals, or any requests for such information, or if any such negotiations
or discussion are sought to be initiated or continued with the Stockholder.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder represents and warrants to Parent and Merger
Subsidiary as follows:
(a) The Stockholder has the legal capacity, power, authority and
right (contractual or otherwise) to execute and deliver this Agreement and to
perform his obligations hereunder.
(b) This Agreement has been duly executed and delivered by the
Stockholder and constitutes a valid and binding obligation of the Stockholder
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights and
general principles of equity.
(c) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated will not conflict with or
violate any court order, judgment or decree applicable to the Stockholder, or
conflict with or result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under any
contract or agreement to which the Stockholder is a party or by which the
Stockholder is bound or affected, which conflict, violation, breach or default
would materially and adversely affect the Stockholder's ability to perform any
of his obligations under this Agreement.
(d) Subject to required filings (if any) under applicable
securities laws, the Stockholder is not required to give any notice or make any
report or other filing with any governmental authority in connection with the
execution or delivery of this Agreement or the performance of the Stockholder's
obligation hereunder and no waiver, consent, approval or authorization of any
governmental or regulatory authority or any other person or entity is required
to be obtained by the Stockholder for the performance of the Stockholder's
obligations hereunder, other than where the failure to make such filings, give
such notices or obtain notices or obtain such waivers, consents, approvals or
authorizations would not materially and adversely affect the Stockholder's
ability to perform this Agreement.
(e) The number of Shares set forth opposite the name of the
Stockholder on SCHEDULE 1 hereto are the only Shares owned beneficially or of
record by the Stockholder or over which he exercises voting control.
Section 5. FURTHER ASSURANCES
During the Term, the Stockholder shall make such filings as may be
required under applicable securities laws and, upon the request of Parent,
execute and deliver such documents and take such actions as Parent may
reasonably deem necessary to effectuate the purposes of this Agreement.
Section 6. DESCRIPTIVE HEADINGS
The descriptive headings herein are inserted for convenience only
and are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
Section 7. COUNTERPARTS
This Agreement may be executed in counterparts, each of which when
so executed and delivered shall be an original, but all of such counterparts
shall together constitute one and the same instrument.
ENTIRE AGREEMENT; ASSIGNMENT
This Agreement (i) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties hereto with respect to the subject matter hereof and (ii) shall not be
assigned by operation of law or otherwise.
Section 8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(b) The Stockholder hereby submits and consents to non-exclusive
personal jurisdiction in any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby in a federal court located in
the Southern District of New York or in a New York state court located in the
County of New York. Any process, summons, notice or document delivered by mail
to the address set forth on SCHEDULE 1 hereto shall be effective service of
process for any action, suit or proceeding in any such court with respect to any
matters to which the Stockholder has submitted to jurisdiction in this Section
9. The Stockholder irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in any New York state court located in
the County of New York or any federal court located in the Southern District of
New York, and hereby irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. THE
STOCKHOLDER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT.
Section 9. SPECIFIC PERFORMANCE
The parties hereto agree that if any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached, irreparable damage would occur, no adequate remedy at law
would exist and damages would be difficult to determine, and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or equity.
Section 10. PARTIES IN INTEREST
This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person or persons any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
Section 11. AMENDMENT; WAIVERS
This Agreement shall not be amended, altered or modified except by
an instrument in writing duly executed by each of the parties hereto. No delay
or failure on the part of any party hereto in exercising any right, power or
privilege under this Agreement shall impair any such right, power or privilege
or be construed as a waiver of any default or any acquiescence thereto. No
single or partial exercise of any such right, power or privilege shall preclude
the further exercise of such right, power or privilege, or the exercise of any
other right, power or privilege. No waiver shall be valid against any party
hereto, unless made in writing and signed by the party against whom enforcement
of such waiver is sought, and then only to the extent expressly specified
therein.
Section 12. CAPACITY OF STOCKHOLDER
The Stockholder has executed this Agreement solely in his capacity
as a Stockholder of the Company and not in his capacity as an officer, director
or employee of the Company. Without limiting the foregoing, nothing in this
Agreement shall limit or affect any actions taken by the Stockholder in
fulfillment of his responsibilities as an officer, director or employee of the
Company in connection with the exercise of the Company's rights under the Merger
Agreement.
Section 13. TERMINATION
This Agreement shall terminate immediately upon the earlier of (i)
the date on which the Merger Agreement is terminated in accordance with its
terms or (ii) the consummation of the Merger. None of the representations,
warranties, covenants or agreements in this Agreement shall survive the
termination of this Agreement; PROVIDED, HOWEVER, that nothing contained herein
shall release the Stockholder from any liability arising from any breach of any
of its representations, warranties, covenants or agreements in this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, or have caused this Agreement to be duly executed and
delivered in their names and on their behalf, as of the date first written
above.
CELLTECH GROUP PLC
By:
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Name:
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Title:
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CGP ACQUISITION CORP.
By:
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Name:
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Title:
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[Name]
SCHEDULE 1
Name of Record Number of Shares
And Beneficial Owner Number of Shares Under Voting Control
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Any process, summons, notice or document delivered by mail pursuant to Section 9
hereof to the beneficial or record holder set forth on this SCHEDULE 1, should
be delivered to:
[address]
