VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 15, 1999 (this
"Agreement"), among Pharmacia & Upjohn, Inc., a Delaware corporation ("Parent"),
and the individuals and entities whose names and addresses are set forth on the
signature pages hereto (collectively, the "Stockholders", and each,
individually, a "Stockholder").
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, Parent and its wholly owned subsidiary, University Acquisition
Corp., a Delaware corporation ("Merger Sub"), have executed and delivered an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), a copy of which is annexed hereto as Annex A, with SUGEN, Inc., a
Delaware corporation (the "Company"), which provides, among other things, that
Merger Sub will merge with and into the Company pursuant to the merger
contemplated by the Merger Agreement (the "Merger"); and
WHEREAS, as of the date hereof, each Stockholder holds of
record and beneficially owns the number of shares of common stock, par value
$0.01 per share, of the Company (the "Company Common Stock") set forth opposite
his or its name on the signature pages hereto; and
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, each Stockholder has executed and delivered to Parent a letter
agreement in substantially the form of Exhibit AZ-1 or A-1 to the Merger
Agreement; and
WHEREAS, Parent wishes each Stockholder to enter into this
Agreement governing the voting of all of the shares of Company Common Stock that
are now held of record or beneficially owned by such Stockholder (collectively,
the "Shares"); and all of the New Shares (as defined in Section 6) held or owned
by such Stockholder.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, and covenants and agreements contained herein, the
parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein but not defined
herein have the respective meanings ascribed to such terms in the Merger
Agreement.
2. Agreement to Vote Shares. During the term of this
Agreement, each Stockholder agrees that it consents to, approves, authorizes and
directs the voting of all Shares and any New Shares held or owned by such
Stockholder, and agrees to cause all Shares and any New Shares held or owned by
such Stockholder to be voted, at every meeting of the stockholders of the
Company at which such matters are con sidered and at every adjournment thereof
or in connection with any written consent of the stockholders of the Company
related to such matters, in favor of the adoption of the Merger Agreement and
the consummation of the Merger and the other transactions contemplated by the
Merger Agreement (collectively, the "Merger Transactions"). Each Stockholder
agrees to deliver to Parent promptly upon the request therefor a proxy in the
form attached hereto as Exhibit A, which proxy is coupled with an interest and
shall be irrevocable during the term of this Agreement to the fullest extent
permitted under Delaware law. The proxy granted by each Stockholder shall be
revoked upon the termination of this Agreement in accordance with its terms.
3. No Voting Trusts or Agreements. Each Stockholder agrees
that it will not, and will not permit any entity under its control to, deposit
any of the Shares or New Shares held or owned by such Stockholder in any voting
trust, grant any proxies or powers of attorney with respect to such Shares or
New Shares or, except as contemplated by this Agreement, subject any such Shares
or New Shares to any agreement, instrument or arrangement with respect to the
voting of such Shares or New Shares other than this Agreement.
4. No Proxy Solicitations. Each Stockholder agrees that it
will not, and will not permit any entity under its control to, (a) solicit
proxies in opposition to the consummation of the Merger Transactions or
otherwise knowingly encourage or assist any party in taking or planning any
action which would impede, interfere with or attempt to discourage the Merger
Transactions or inhibit the timely consummation of the Merger Transactions, (b)
directly or indirectly knowingly encourage, initiate or cooperate in a
stockholders' vote or action by consent of the Company's stockholders in
opposition to the consummation of the Merger Transactions, or (c) 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 the Company for the
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purpose of opposing the consummation of the Merger Transactions.
5. No Additional Purchases or Acquisitions. Each Stockholder
agrees that any shares of Common Stock or other capital stock of the Company of
which such Stockholder becomes the record holder or acquires beneficial
ownership following the execution and delivery of this Agreement ("New Shares")
acquired or purchased by it shall be subject to the terms of this Agreement to
the same extent as if they constituted Shares held or owned by such Stockholder
on the date of this Agreement.
6. Additional Shares. Each Stockholder agrees, while this
Agreement is in effect, to promptly notify Parent of the number of any New
Shares acquired by such Stockholder, if any, after the date hereof. In the event
that, between the date of this Agreement and the Closing, the Shares held or
owned by any Stockholder shall have been affected or changed into a different
number of shares or a different class of shares as a result of a share split,
reverse share split, share distribution, spin-off, recapitalization,
reclassification (other than a change in par value), or other similar
transaction, the term "Shares" shall be deemed to refer to and include the
Shares as well as any securities into which or for which any or all of the
Shares may be converted or exchanged and all such share distributions or, if
applicable, to such smaller number of securities replacing the Shares.
7. Non-Interference. Each Stockholder agrees not to knowingly
take any action that would make any representation or warranty of such
Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling any Stockholder from performing its obligations under
this Agreement.
8. Acquisition Proposals. Each Stockholder shall, and shall
use its commercially reasonable efforts to cause its affiliates and its and
their respective officers, directors, employees and representatives to,
immediately cease and terminate any existing activities, discussions or
negotiations, if any, with any parties conducted heretofore with respect to any
acquisition or exchange of all or any material portion of such Stockholder's
Shares (an "Acquisition Transaction"), other than the Merger. In its capacity as
a stockholder of the Company, each Stockholder
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shall not, and shall use its commercially reasonable efforts to cause its
affiliates and its and their respective officers, directors, employees and
representatives not to, directly or indirectly, knowingly encourage, solicit,
participate in or initiate discussions or negotiations with, or provide any
information or data (other than the Company's standard public information
package) to, or have any discussions with, any corporation, partnership, person
or other entity or group (other than Parent and Merger Sub, any affiliate or
associate of Parent and Merger Sub or any designees of Parent and Merger Sub)
with respect to any inquiries or the making of any offer or proposal (including,
without limitation, any offer or proposal to the stockholders of the Company)
concerning an Acquisition Transaction (an "Acquisition Proposal") or otherwise
facilitate any effort or attempt to make or implement an Acquisition Proposal.
9. Representations and Warranties of the Stockholders. Each
Stockholder hereby severally represents and warrants to Parent as follows:
(a) Authority Relative to this Agreement. Such Stockholder has
all necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by such
Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action on the part of the Stockholder. This Agreement has been duly and validly
executed and delivered by such Stockholder and constitutes a legal, valid and
binding obligation of such Stockholder, enforceable in accordance with its
terms.
(b) No Conflict. The execution and delivery of this Agreement
by such Stockholder does not, and the performance of this Agreement by such
Stockholder will not, (i) require any consent, approval, authorization or permit
of, or filing with or notification to (other than pursuant to the Exchange Act
and the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended), any
governmental or regulatory authority, domestic or foreign by or with respect to
such Stockholder, (ii) if applicable, conflict with or violate the memorandum of
association and articles of association or other organizational documents of
such Stockholder, (iii) conflict with or violate any law, rule,
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regulation, order, judgment or decree applicable to such Stockholder or by which
such Stockholder's Shares or New Shares are bound, or (iv) result in any breach
of or constitute a default (or any event which with notice or lapse of time or
both would become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or other encumbrance of any nature whatsoever on such Stockholder's Shares or
New Shares pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Stockholder is a party or by which such Stockholder or such
Stockholder's Shares or New Shares may be bound, except, in the case of clauses
(iii) and (iv), for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or materially delay the performance by such
Stockholder of its obligations hereunder.
(c) Title to the Shares. As of the date of this Agreement,
such Stockholder does not beneficially own any shares of capital stock of the
Company other than the number of Shares set forth opposite such Stockholder's
name on one of the signature pages hereto and does not have any options,
warrants or other rights to acquire any additional shares of capital stock of
the Company or any security exercisable for or convertible into shares of
capital stock of the Company, other than as set forth in a written schedule
referring to this Section 12(c) delivered by such Stockholder to Parent prior to
the date of this Agreement. Except as disclosed in any Schedule 13D filed by the
Stockholder with respect to its Shares prior to the date of this Agreement and
except pursuant to margin agreements between the Stockholder and any
broker-dealer, such Stockholder owns all such Shares free and clear of all
security interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on such Stockholder's voting rights, charges, security
interests and other encumbrances of any nature whatsoever, and, except as
provided in this Agreement, such Stockholder has not appointed or granted any
proxy, which appointment or grant is still effective, with respect to the
Shares. Except as disclosed in any Schedule 13D filed by the Stockholder with
respect to its Shares prior to the date of this Agreement and except for
agreements providing registration rights with respect to the Shares and except
pursuant to margin agreements between the Stockholder and any broker-dealer,
there are no agreements, arrangements or
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commitments of any character to which such Stockholder is a party relating to
the pledge or disposition of any Shares or any other shares of capital stock of
the Company and, except for this Agreement, there are no voting trusts or voting
agreements to which such Stockholder is a party with respect to any shares of
capital stock of the Company.
10. Representations, Warranties and Covenants of Parent.
Parent hereby represents and warrants to the Stockholders that Parent has all
necessary power and authority to execute and deliver this Agreement and the
Merger Agreement and to perform its obligations hereunder and thereunder, and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement and the Merger Agreement by Parent
have been duly authorized by all necessary corporate action on the part of
Parent. This Agreement and the Merger Agreement have each been duly and validly
executed and delivered by Parent and each constitutes a legal, valid and binding
obligation of Parent enforceable in accordance with its terms. The Merger
Agreement annexed hereto as Exhibit A is in the form executed by Parent and the
other parties thereto. Parent agrees to use commercially reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
publicly release a report covering at least 30 days of combined operations of
Parent and the Company after the consummation of the Merger, at the earliest
date reasonably practicable. Parent agrees to use its commercially reasonable
efforts to take or cause to be taken all actions, and do or cause to be done all
things, necessary, proper or advisable under the Merger Agreement and applicable
laws to consummate and make effective the Merger and the other transactions
contemplated by the Merger Agreement as soon as practicable, including preparing
and filing as promptly as practicable all documentation to effect all necessary
applications, notices, petitions, filings and other documents and to obtain as
promptly as practicable all permits, consents, approvals and authorizations
necessary or advisable to be obtained from any third party and/or any
governmental entity in order to consummate the Merger or any of the other
transactions contemplated by the Merger Agreement.
11. Further Assurances. From time to time, at the other
party's request and without further consideration,
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each party hereto shall execute and deliver, or cause to be executed and
delivered, such additional consents, documents and other instruments and take
all such further action as may be necessary or desirable to consummate and make
effective, in the most expeditious manner practicable, the Merger Transactions
and the other transactions contemplated by this Agreement.
12. Termination. This Agreement shall terminate upon the
earliest to occur of (i) the termination of the Merger Agreement, (ii) the
Effective Time (as defined in the Merger Agreement) and (iii) the first
anniversary of the date of this Agreement.
13. Assignment; Third Party Beneficiaries. This Agreement and
all of the provisions hereof shall be binding and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but
neither this Agreement nor any of the rights, interests and obligations
hereunder shall be assigned by any of the parties hereto without the prior
written consent of the other parties. Any purported assignment made in violation
of this Agreement shall be null and void. This Agreement is not intended to
confer any rights or remedies hereunder upon any other Person except the parties
hereto.
14. Modification or Amendment. Subject to the provisions of
the applicable law, the parties hereto may modify or amend this Agreement, by
written agreement executed and delivered by duly authorized officers of the
respective parties.
15. Waiver of Conditions. The conditions to each of the
parties' obligations to consummate the Merger are for the sole benefit of such
party and may be waived by such party in whole or in part to the extent
permitted by applicable law.
16. Counterparts. This Agreement may be executed in any number
of counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts shall together constitute the same
agreement.
17. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL. (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
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NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF. The parties
hereby irrevocably submit to the jurisdiction of the courts of the State of New
York and the Federal courts of the United States of America located in the
Borough of Manhattan, The City of New York solely in respect of the
interpretation and enforcement of the provisions of this Agreement and of the
proxies referred to in Section 2 and in respect of the transactions contemplated
hereby and thereby, 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 or any such
proxy 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 New York 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 18 or in such other manner as may
be permitted by law, shall be valid and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT OR THE PROXIES REFERRED TO IN SECTION 2 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 ARISING DIRECTLY OR
INDIRECTLY OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF 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 SUCH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH SUCH PARTY MAKES THIS
WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 17.
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18. Notices. Any notice, request, instruction or other
document to be given hereunder by any party to the others shall be in writing
and delivered personally or sent by registered or certified mail, postage
prepaid, or by facsimile:
if to Parent, to:
Xxxxxxx X. Xxxxxxx
Pharmacia & Upjohn, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
fax: (000) 000-0000
with copies to:
Xxxx X. Xxxxxxxx
Xxxxxxx X. Xxxx
and Xxxxxx X. Xxxxxxx
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
fax: (000) 000-0000.
if to any Stockholder, to:
the individual and to the address set forth
opposite such Stockholder's name on one of the
signature pages of this Agreement.
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
19. Entire Agreement. This Agreement (including the proxies
granted pursuant hereto) constitutes the entire agreement, and supersedes all
other prior agreements, understandings, representations and warranties both
written and oral, among the parties, with respect to the subject matter hereof.
20. Severability. The provisions of this Agree ment shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability or the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may
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be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
21. Specific Performance. The parties hereto each acknowledge
that, in view of the uniqueness of the subject matter hereof, the parties hereto
would not have an adequate remedy at law for money damages if this Agreement
were not performed in accordance with its terms, and therefore agree that the
parties hereto shall be entitled to specific enforcement of the terms hereof in
addition to any other remedy to which the parties hereto may be entitled at law
or in equity.
22. No Reference to Stockholders. Parent shall not make any
reference, directly or indirectly, to AstraZeneca plc or its affiliates or the
Company's relationship with AstraZeneca plc or its affiliates without the prior
consent of AstraZeneca plc.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by duly authorized officers of the parties hereto as of the date
hereof.
PHARMACIA & UPJOHN, INC.
By:
-----------------------------------
Name:
Title:
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(Signature Page to Voting Agreement)
Stockholder: NUMBER OF SHARES OWNED
864,469
----------------------------
Name: Xxxxxxx Xxxxx-Freke
Address: c/o SUGEN, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx Xxxxxxxxx, XX 00000
ZENECA LIMITED
3,036,016
By:
------------------------------
Name:
Title:
Address: Attention: Company Secretary of
Zeneca Limited
00 Xxxxxxxx Xxxx
Xxxxxx X0X 0XX
Xxxxxx Xxxxxxx
fax: 00(000)000-0000
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(EXHIBIT A)
FORM OF PROXY
The undersigned, for consideration received, hereby appoints o
and o and each of them [my][its] proxies, with power of substitution and
resubstitution, to vote all shares of Common Stock of SUGEN, Inc., a Delaware
corporation (the "Company"), [and [insert any New Shares (as defined in the
Voting Agreement) or other shares of capital stock of the Company owned by the
Stockholder (as defined in the Voting Agreement)]] owned by the undersigned at
the Special Meeting of Stockholders of the Company to be held [insert date, time
and place] and at any adjournment thereof IN FAVOR OF adoption of the Agreement
and Plan of Merger, dated as of June 15, 1999 (the "Merger Agreement"), among
the Company, Pharmacia & Upjohn, Inc. ("Parent") and University Acquisition
Corp. and IN FAVOR OF consummation of the Merger Transactions. This proxy is
coupled with an interest, revokes all prior proxies granted by the undersigned
and is irrevocable until such time as the Voting Agreement, dated as of June 15,
1999 among the undersigned, the Company and Parent terminates in accordance with
its terms. This proxy shall be revoked upon termination of such Voting
Agreement.
Dated o, 1999
------------------------------------
[STOCKHOLDER]
