EXHIBIT NO. 99.2
VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of December
5, 2001, between COR Therapeutics, Inc., a Delaware corporation ("COR"), and the
undersigned stockholder ("STOCKHOLDER") of Millennium Pharmaceuticals, Inc., a
Delaware corporation ("MILLENNIUM").
RECITALS
A. Concurrently with the execution of this Agreement, COR, Millennium and
PGM Corporation, a Delaware corporation and a wholly owned subsidiary of
Millennium ("ACQUISITION SUB"), have entered into an Agreement and Plan of
Merger (the "MERGER AGREEMENT") which provides for the merger (the "MERGER") of
Acquisition Sub with and into COR. Pursuant to the Merger, shares of capital
stock of COR will be converted into the right to receive shares of common stock,
par value $.001 per share, of Millennium ("Millennium Common Stock") on the
basis described in the Merger Agreement.
B. Stockholder is the record holder and beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT") of such number of shares of the outstanding Millennium Common Stock as is
indicated on the final page of this Agreement (the "SHARES").
C. COR desires Stockholder to agree, and Stockholder is willing to agree,
not to transfer or otherwise dispose of any of the Shares, or any other shares
of capital stock of Millennium acquired by Stockholder hereafter and prior to
the Expiration Date (as defined in Section 1.1 below, except as otherwise
permitted hereby), and to vote the Shares and any other such shares of capital
stock of Millennium acquired by Stockholder so as to facilitate consummation of
the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. AGREEMENT TO RETAIN SHARES.
1.1 TRANSFER AND ENCUMBRANCE. Stockholder agrees not to transfer
(except as may be specifically required by court order), sell, exchange, pledge
or otherwise dispose of or encumber any of the Shares or any New Shares (as
defined in Section 1.2, below), or to make any offer or agreement relating
thereto, at any time prior to the Expiration Date; provided, however, that
nothing in this Agreement shall restrict Stockholder from (a) exercising any
options to acquire shares of common stock of Millennium, or (b) effecting any
transfer of Shares or New Shares (i) by will or applicable laws of descent and
distribution or (ii) to any member of the immediate family of Stockholder, or to
any trust the beneficial ownership of which is held by Stockholder or any such
family member (each a "Permitted Transferee"), so long as such Permitted
Transferee agrees in writing, in form and substance reasonably satisfactory to
COR, to be bound by the terms of this Agreement to the same extent as
Stockholder is bound. As used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) such date and time as the Merger shall become effective
in accordance with the terms and provisions of the Merger Agreement and (ii)
such date and time as the Merger Agreement shall be terminated pursuant to
Article VIII thereof.
1.2 ADDITIONAL PURCHASES. Stockholder agrees that any shares of
capital stock of Millennium that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the execution of this
Agreement and prior to the Expiration Date ("NEW SHARES") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. AGREEMENT TO VOTE SHARES. At every meeting of stockholders of Millennium
called with respect to the Merger Agreement and/or the Merger, and at every
adjournment thereof, Stockholder shall vote the Shares and any New Shares
outstanding as of the relevant record date in favor of the issuance of the
shares of Millennium Common Stock to be issued in the Merger (the "MILLENNIUM
VOTING PROPOSAL") and against any proposal made in opposition to the Millennium
Voting Proposal or consummation of the Merger (an "OPPOSING PROPOSAL").
3. IRREVOCABLE PROXY. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to COR a proxy in the form attached hereto as
EXHIBIT A (the "PROXY"), which shall be irrevocable to the extent provided
therein, with the total number of shares of outstanding capital stock of
Millennium beneficially owned by Stockholder and subject to the Proxy set forth
therein.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER. Stockholder
hereby represents, warrants and covenants to COR as follows:
4.1 OWNERSHIP OF SHARES. Stockholder (i) is the beneficial owner of
the Shares, which at the date hereof and at all times up until the Expiration
Date will be free and clear of any liens, claims, options, charges or other
encumbrances; (ii) does not beneficially own any shares of capital stock of
Millennium other than the Shares, and shares of capital stock of Millennium (A)
underlying options which are currently exercisable or will become exercisable at
any time within 60 days from the date hereof, as indicated on the final page of
this Agreement or (B) constituting matching contributions under Millennium's
401(k) Plan; and (iii) has full power and authority to make, enter into and
carry out the terms of this Agreement and the Proxy.
4.2 NO PROXY SOLICITATIONS. Stockholder, in his or her capacity as a
stockholder of Millennium, will not, and will not permit any entity under
Stockholder's control to: (i) solicit proxies with respect to an approval of any
Opposing Proposal; (ii) initiate a stockholders' vote or action by consent of
Millennium stockholders with respect to an Opposing Proposal; or (iii) become a
member of a "group" (as such term is used in Section 13(d) of the Exchange Act)
with respect to any voting securities of Millennium with respect to an Opposing
Proposal.
5. ADDITIONAL DOCUMENTS. Stockholder hereby covenants and agrees to execute
and deliver any additional documents reasonably required by COR to carry out the
intent of this Agreement.
6. NO OWNERSHIP INTEREST. Nothing contained in this Agreement shall be
deemed to vest in COR any direct or indirect ownership or incidents of ownership
of or with respect to any of the Shares or New Shares, except as otherwise
expressly provided herein. All rights, ownership and economic benefits of and
relating to the Shares and New Shares shall remain with, and belong to,
Stockholder, and this Agreement shall not be deemed to authorize COR to manage,
direct, superintend, restrict, regulate, govern or administer any of the
policies or operations of Millennium
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or to direct Stockholder in the voting of any of the Shares or New Shares,
except as otherwise expressly provided herein.
7. TERMINATION. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
8. MISCELLANEOUS.
8.1 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
8.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor
any of the rights, interests or obligations of the parties hereto may be
assigned by either of the parties without prior written consent of the other.
8.3 AMENDMENTS AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
8.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that COR will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreement
of Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to COR upon any such violation, COR
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to COR at law
or in equity.
8.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telecopy, or sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or overnight
courier (prepaid) to the respective parties as follows:
If to COR: COR Therapeutics, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
With a copy to: Xxxxxx Godward LLP
0 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
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If to Stockholder: To the address for notice set forth on the last page hereof.
with a copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith. Notices shall only be effective upon receipt.
8.6 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware without
giving effect to the conflict of laws provision thereof.
8.7 ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter.
8.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
8.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction of interpretation of this
Agreement.
8.10 FIDUCIARY DUTY AS DIRECTOR OR OFFICER. The parties hereto
acknowledge and agree that Stockholder's obligations hereunder are solely in his
or her capacity as a stockholder of Millennium, and that none of the provisions
herein set forth shall be deemed to restrict or limit any fiduciary duty the
undersigned or any of his or her respective affiliates may have as a member of
the Board of Directors of Millennium or as an executive officer of Millennium;
provided that no such duty shall excuse Stockholder from his or her obligations
as a stockholder of Millennium to vote Shares or New Shares as herein provided
and to otherwise comply with the terms and conditions of this Agreement.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
COR THERAPEUTICS, INC.
By:
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Name:
Title:
STOCKHOLDER:
By:
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Print
Name:
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Stockholder's Address for Notice:
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Shares beneficially owned:
_____________ shares of outstanding Common Stock
_____________ shares of Common Stock underlying
options which are currently exercisable or will
become exercisable at any time within 60 days
from the date hereof
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Millennium Pharmaceuticals, Inc., a Delaware
corporation ("Millennium"), hereby irrevocably appoints Xxxxxx X. Xxxxxxx, Xxxxx
X. Xxxxx and Xxxxxxx X. Xxxxxxxxx of COR Therapeutics, Inc., a Delaware
corporation ("COR"), and each of them, as the sole and exclusive attorneys and
proxies of the undersigned, with full power of substitution and resubstitution,
to the full extent of the undersigned's rights with respect to the shares of
outstanding capital stock of Millennium beneficially owned by the undersigned,
which shares are listed on the final page of this Proxy (the "SHARES"), and any
and all other shares or securities issued or issuable in respect thereof on or
after the date hereof, until such time as that certain Agreement and Plan of
Merger dated as of December 5, 2001 (the "MERGER AGREEMENT"), among COR,
Millennium and PGM Corporation, a Delaware corporation and a wholly owned
subsidiary of Millennium ("ACQUISITION SUB"), shall be terminated in accordance
with its terms or the Merger (as defined in the Merger Agreement) is effective,
whichever first occurs. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given.
This proxy is coupled with an interest and is irrevocable, is granted in
order to secure the obligations under the Voting Agreement dated as of December
5, 2001 between COR and the undersigned stockholder (the "VOTING AGREEMENT"),
and is granted in consideration of COR entering into the Merger Agreement. The
attorneys and proxies named above will be empowered at any time prior to
termination of the Merger Agreement to exercise all voting and other rights of
the undersigned at every annual, special or adjourned meeting of Millennium
stockholders in favor of the issuance of the shares of Millennium Common Stock
(as defined in the Voting Agreement) to be issued in the Merger (the "MILLENNIUM
VOTING PROPOSAL") and against any proposal made in opposition to the Millennium
Voting Proposal or consummation of the Merger (an "OPPOSING PROPOSAL").
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto at any time prior to termination of the Merger
Agreement at every annual, special or adjourned meeting of Stockholders of
Millennium in favor of the Millennium Voting Proposal and against any Opposing
Proposal. The undersigned stockholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: December 5, 2001
Signature of Stockholder:
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Print Name of Stockholder:
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Shares beneficially owned:
shares of outstanding Common Stock
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