FORM OF VOTING AGREEMENT
EXHIBIT
10.39
EXECUTION
COPY
FORM
OF VOTING AGREEMENT
THIS
VOTING AGREEMENT (this
“Agreement”) is made and entered into as of November 9,
2006, by and between Genentech, Inc., a Delaware corporation
(“Parent”) and the undersigned stockholder
(“Stockholder”) of Tanox, Inc. (the
“Company”).
RECITALS
A.
Concurrently with the execution
of this Agreement, Parent and the Company have entered into an Agreement and
Plan of Merger (the “Merger Agreement”), which provides for the
merger (the “Merger”) of a wholly-owned subsidiary of Parent
with and into the Company.
B.
Pursuant to the Merger, all of
the issued and outstanding shares of capital stock and options of the Company
will be canceled and converted into the right to receive the consideration
set
forth in the Merger Agreement, all upon the terms and subject to the conditions
set forth in the Merger Agreement.
C.
As of the date hereof,
Stockholder is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) of the number of shares of outstanding capital stock of the
Company (the “Shares”) and other securities convertible into,
or exercisable or exchangeable for, shares of capital stock of the Company
(the
“Options”), all as set forth on the signature page of this
Agreement; provided that for purposes of determining beneficial ownership
pursuant to this Agreement, Stockholder shall in all cases be deemed to be
the
beneficial owner of any securities which may be acquired by such Stockholder
pursuant to any agreement, arrangement or understanding or upon the exercise
of
conversion rights, exchange rights, warrants or options, or otherwise
(irrespective of whether the right to acquire such securities is exercisable
immediately or only after the passage of time, including the passage of time
in
excess of 60 days, the satisfaction of any conditions, the occurrence of any
event or any combination of the foregoing).
D.
As a material inducement to
Parent to enter into and to consummate the transactions contemplated by the
Merger Agreement, Parent has required that Stockholder agree, and Stockholder
is
willing to agree, to restrict the transfer or disposition of any Shares, Options
and any New Shares (as defined in Section 1(b) hereof), and to vote
the Shares and any New Shares as set forth in this Agreement.
NOW,
THEREFORE, the parties hereto
hereby agree as follows:
1.
Agreement
to Retain Shares and
Options.
(a)
Transfer.
Stockholder
agrees that, at all times during the period beginning on the date hereof and
ending at the Expiration Time, Stockholder shall not Transfer (as defined below)
any of the Shares, Options and any New Shares, or make any agreement or
understanding regarding
any Transfer, in each case without the prior written consent of Parent.
Stockholder agrees that any Transfer in violation of this Agreement shall be
void and of no force or effect.
As
used herein, the term
“Expiration Time” 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, or (ii) the
termination of the Merger Agreement in accordance with the terms thereof. As
used herein, the term “Transfer” shall mean, with respect to
any security, the direct or indirect assignment, sale, transfer, tender, pledge,
hypothecation, or the gift, placement in trust, or the Constructive Sale (as
defined below) or other disposition of such security (excluding
[exercises of Options and]1
transfers by testamentary or intestate succession or
otherwise by operation of law) or any right, title or interest therein
(including, but not limited to, any right or power to vote to which the holder
thereof may be entitled, whether such right or power is granted by proxy or
otherwise), or the record or beneficial ownership thereof, the offer to make
such a sale, transfer, tender, pledge, hypothecation or Constructive Sale or
other disposition, and each agreement, arrangement or understanding, whether
or
not in writing, to effect any of the foregoing, excluding any Transfer
(A) pursuant to a court order, (B) pursuant to the Merger, (C) to
any affiliate or family member of Stockholder if such transferee, prior to
the
Transfer, executes a binding agreement with Parent and the Company substantially
in the form of this Agreement [or (D) that is a sale (other than a
Constructive Sale) in the open market through a brokers’ transaction (as defined
in Rule 144(g) under the Securities Act of 1933, as
amended)]2.
As used herein, the
term “Constructive Sale” shall mean, with respect to any
security, a short sale with respect to such security, entering into or acquiring
an offsetting derivative contract with respect to such security, entering into
or acquiring a futures or forward contract to deliver such security or entering
into any other hedging or other derivative transaction that has the effect
of
materially changing the economic benefits and risks of ownership.
(b)
New
Shares. Stockholder
agrees that any shares of capital stock of the Company that Stockholder
purchases or with respect to which Stockholder otherwise acquires beneficial
ownership after the date of this Agreement and prior to the Expiration Time,
including, without limitation, shares issued or issuable upon the conversion,
exercise or exchange, as the case may be, of any Options held by Stockholder
(“New Shares”), shall be subject to the terms and conditions of
this Agreement to the same extent as if they constituted Shares as of the date
hereof.
2.
Agreement
to Vote Shares.
Until the Expiration Time, at every meeting of stockholders of the Company
called with respect to any of the following, and at every adjournment or
postponement thereof, and on every action or approval by written consent of
stockholders of the Company with respect to any of the following, Stockholder
shall vote, to the extent not voted by the person(s) appointed under the Proxy
(as defined in Section 3), the outstanding Shares and any
outstanding New Shares (to the extent any such New Shares may be voted):
1This
language was included in voting agreements executed by
Xxxxx Xxxxx, Xxxxx Xxxx, Danong Chen, Xxxx Xxxxxxxx, Xxxxx Xxxxxxx and Xxxxx
Xxxxxx, but was excluded from the voting agreements executed by Xxxxx Xxxxx
and
Tse-Xxx Xxxxx.
2This
language was included in voting agreements executed by
Xxxxx Xxxxx, Xxxxx Xxxx, Danong Chen, Xxxx Xxxxxxxx, Xxxxx Xxxxxxx and Xxxxx
Xxxxxx, but was excluded from the voting agreements executed by Xxxxx Xxxxx
and
Tse-Xxx Xxxxx.
(i) in
favor of adoption of the
Merger Agreement and in favor of any other action contemplated by the Merger
Agreement or required in furtherance of the Merger and the transactions
contemplated by the Merger Agreement (including one or more adjournments
necessary to solicit additional proxies if there are insufficient votes to
adopt
the Merger Agreement and any such related proposals at the time of any meeting
held for such purposes);
(ii) against
approval of any
proposal made in opposition to, or in competition with, consummation of the
Merger and the transactions contemplated by the Merger Agreement;
(iii)
against any of the following
actions (other than those actions contemplated by the Merger Agreement):
(A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company or any subsidiary of the
Company with any party, (B) any sale, lease, license or transfer of any
significant part of the assets of the Company or any subsidiary of the Company,
(C) any reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any subsidiary of the Company, (D) any
amendment to the certificate of incorporation or bylaws of the Company or any
subsidiary of the Company or any material change in the capitalization of the
Company or any subsidiary of the Company, or the corporate structure of the
Company or any subsidiary of the Company, or (E) any other action that is
intended, or could reasonably be expected to, impede, frustrate, prevent,
interfere with, delay, postpone, discourage, nullify or adversely affect the
Merger, the Merger Agreement or any of the other transactions contemplated
by
the Merger Agreement; and
(iv)
in favor of waiving any notice
that may have been or may be required relating to any such meeting of
stockholders or written consent, the Merger, the Merger Agreement or the
transactions contemplated thereby.
Prior
to the Expiration Time,
Stockholder shall not enter into any agreement or understanding with any person
to vote or give instructions in any manner inconsistent with this
Section 2. Prior to the Expiration Time, to the extent not
represented thereat by the person(s) appointed under the Proxy, Stockholder
shall [cause the Shares and any New Shares to be counted as present
thereat for purposes of establishing quorum.]3
3.
Irrevocable
Proxy.
Concurrently with the execution of this Agreement, Stockholder agrees to deliver
to Parent an irrevocable proxy in the form attached hereto as
Appendix A (the “Proxy”), which shall be
irrevocable to the fullest extent permitted by applicable law, covering the
total number of Shares and New Shares.
4.
Representations,
Warranties
and Covenants of Stockholder. Stockholder represents, warrants and covenants
to Parent as follows:
(i)
Stockholder is the beneficial
owner of the Shares, with full power to vote or direct the voting of the Shares
and to dispose of the Shares for and on behalf of any and all beneficial owners
of the Shares, with no limitations, qualifications or restrictions on such
rights.
3This
language was included in voting agreements executed by
Xxxxx Xxxxx, Xxxxx Xxxx, Danong Chen, Xxxx Xxxxxxxx, Xxxxx Xxxxxxx and Xxxxx
Xxxxxx. In the voting agreements executed by Xxxxx Xxxxx and Tse-Xxx Xxxxx,
the
following language was substituted for the highlighted language: “appear at any
meeting of stockholders of the Company and cause the Shares and any New Shares
to be counted as present thereat for purposes of establishing quorum.”
(ii)
As of the date hereof, the
Shares are, and at all times up until the Expiration Time the Shares will be,
free and clear of any rights of first refusal, co-sale rights, security
interests, liens, pledges, claims, options, charges or other encumbrances of
any
kind or nature, in each case that could impair Stockholder’s ability to fulfill
its obligations under Section 2. The execution and delivery of this
Agreement by Stockholder do not, and Stockholder’s performance of its
obligations under this Agreement will not, conflict with or violate any order,
decree, judgment or Contract applicable to Stockholder or by which Stockholder
or any of Stockholder’s properties or Shares is bound.
(iii)
Stockholder does not
beneficially own any shares of capital stock of the Company, or any securities
convertible into, or exchangeable or exercisable for, shares of capital stock
of
the Company, other than as set forth on the signature page hereto.
(iv)
Stockholder has full power and
authority to make, enter into and carry out the terms of this Agreement, the
Proxy and any other related agreements to which Stockholder is a party.
(v)
Stockholder shall not take any
action that the Company is prohibited from authorizing or permitting any
Representative (as defined in the Merger Agreement) from taking under
Section 5.4(a) of the Merger Agreement, whether or not Stockholder is or
remains a Representative.
(vi)
Stockholder agrees that it will
not bring, commence, institute, maintain, prosecute, participate in or
voluntarily aid any Action before any Governmental Entity, which alleges that
the execution and delivery of this Agreement by Stockholder, either alone or
together with the other Company voting agreements and proxies to be delivered
in
connection with the execution of the Merger Agreement, or the approval of the
Merger Agreement by the board of directors of the Company, breaches any
fiduciary duty of the board of directors of the Company or any member thereof;
provided, that Stockholder may defend against, contest or settle any such
action, claim, suit or cause of action brought against Stockholder that relates
solely to Stockholder’s capacity as a director or officer of the Company.
(vii)
Stockholder shall not exercise
any rights (including under Section 262 of the Delaware Law) to demand
appraisal or dissenters’ rights with respect to any Shares or New Shares that
may be available with respect to the Merger.
5.
Further
Assurances.
Stockholder hereby covenants and agrees to take, or cause to be taken, all
actions, and to do, or cause to be done, all things reasonably necessary to
fulfill such Stockholder’s obligations under this Agreement, and to execute and
deliver any additional documents reasonably necessary or desirable to carry
out
the purpose and intent of this Agreement.
6.
Consents
and Waivers.
Stockholder hereby gives any consents or waivers that are reasonably required
for the consummation of the Merger under the terms of any Contract or other
instrument to which Stockholder is a party or subject or in respect of any
rights Stockholder may have. Stockholder further consents to the Company placing
a stop transfer order on the Shares and any New Shares with its transfer
agent(s) in accordance with Section 8.
7.
Termination.
This
Agreement and the Proxy delivered in connection herewith shall terminate
automatically and shall have no further force or effect as of the Expiration
Time.
8.
Company
Covenants. The
Company agrees to make a notation on its records and give instructions to its
transfer agent(s) to not permit, prior to the Expiration Time, the transfer
of
any Shares or New Shares, except as permitted pursuant to
Section 1(a).
9.
Miscellaneous.
(a)
Directors
and Officers.
Notwithstanding any provision of this Agreement to the contrary, Stockholder
has
entered into this Agreement in his or her capacity as a Stockholder of the
Company, and nothing in this Agreement shall limit or restrict Stockholder
from
acting in the Stockholder’s capacity as a director or officer of the Company, as
applicable (it being understood that this Agreement shall apply to Stockholder
solely in Stockholder’s capacity as a stockholder of the Company).
(b)
Waiver.
No waiver by any
party hereto of any condition or any breach of any term or provision set forth
in this Agreement shall be effective unless in writing and signed by the other
party hereto. The waiver of any breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any other
previous or subsequent breach of any term or provision of this Agreement. No
delay or omission by Parent in exercising any right under this Agreement shall
operate as a waiver of that right or any other right under this Agreement.
(c)
Notices.
All notices and
other communications hereunder shall be in writing and shall be deemed given
if
delivered personally or by commercial delivery service, or sent via telecopy
(receipt confirmed) to the parties at the following addresses or telecopy
numbers (or at such other address or telecopy numbers for a party as shall
be
specified by like notice):
(i)if
to Parent, to:
Genentech,
Inc.
0
XXX Xxx
Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx
00000
Attention:
Corporate Secretary
Telephone
No.: (000) 000-0000
Telecopy
No.: (000) 000-0000
with
a copy to:
Xxxxxx
Xxxxxxx Xxxxxxxx &
Xxxxxx
Professional
Corporation
000
Xxxx Xxxx Xxxx
Xxxx
Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx
X.
Xxxxxx, Esq.
Xxxxxxx
X Xxxxxxxxxxx, Esq.
Telephone
No.: (000) 000-0000
Telecopy
No.: (000) 000-0000
(ii)if
to Stockholder: To the
address for notice set forth on the signature page hereof.
(d)
Headings.
All captions
and section headings used in this Agreement are for are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
(e)
Counterparts.
This
Agreement may be executed in one or more counterparts, all of which shall be
considered 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
party, it being understood that all parties need not sign the same counterpart.
(f)
Entire
Agreement;
Amendment. This Agreement constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to
the
subject matter hereof. This Agreement may not be changed or modified, except
by
an agreement in writing specifically referencing this Agreement and executed
by
each of the parties hereto.
(g)
Severability.
In the
event that any provision of this Agreement, or the application thereof, becomes
or is declared by a court of competent jurisdiction to be illegal, void or
unenforceable, the remainder of this Agreement will continue in full force
and
effect and the application of such provision to other persons or circumstances
will be interpreted so as reasonably to effect the intent of the parties hereto.
The parties further agree to replace such void or unenforceable provision of
this Agreement with a valid and enforceable provision that will achieve, to
the
extent possible, the economic, business and other purposes of such void or
unenforceable provision.
(h)
Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law thereof. The parties hereto hereby
irrevocably submit to the exclusive jurisdiction of the Court of Chancery in
Newcastle County in the state of Delaware (and any appellate courts therefrom),
or if such jurisdiction shall be unavailable, any court in the State of Delaware
and the Federal courts of the United States of America, each located
within
Newcastle County in the State of Delaware., solely in respect of the
interpretation and enforcement of the provisions of this Agreement, 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 thereof, 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 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 the Court of Chancery in the State
of Delaware or, if jurisdiction is not available in the Court of Chancery,
any
other Delaware state court or Federal court, each located in Newcastle, County
Delaware. 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 9(c) or in such
other manner as may be permitted by applicable law, shall be valid and
sufficient service thereof. With respect to any particular action, suit or
proceeding, venue shall lie solely in Newcastle County, Delaware.
(i)
Rules
of
Construction. The parties hereto agree that they have been represented
by counsel during the negotiation and execution of this Agreement and,
therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in this Agreement will be construed
against the party drafting such agreement or document. The words “include,”
“includes” and “including” when used herein shall be deemed in each case to be
followed by the words “without limitation.” All capitalized terms that are used
but not defined herein shall have the meanings ascribed to them in the Merger
Agreement.
(j)
Remedies.
The parties
acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements
of
Stockholder set forth herein. Therefore, it is agreed that, in addition to
any
other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at
law
or in equity.
(k)
No
Assignment. Unless
otherwise provided for herein, Stockholder may not assign this Agreement. This
Agreement shall inure to the benefit of Parent, Company and their respective
successors and assigns.
(l)
Waiver
of Jury Trial.
EACH OF PARENT AND STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF
PARENT OR STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.
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IN
WITNESS WHEREOF, the undersigned
have executed this Agreement on the date first above written.
| GENENTECH, INC. | |
| By: |
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| Name: |
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| Title: |
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| STOCKHOLDER: | |
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| Signature | |
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| Print Name | |
| Shares: | |
| Company Common Stock: ___________________________________ | |
| Company Options: _________________________________________ | |
| Stockholder’s address for notice: | |
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****
Signature Page to Company Voting
Agreement***
APPENDIX
A
IRREVOCABLE
PROXY
The
undersigned stockholder
(“Stockholder”) of Tanox, Inc., a Delaware corporation (the
“Company”), hereby irrevocably (to the fullest extent
permitted
by law) appoints Xxxxxxx Julesgaard and Xxxxx Xxxxxxxx of Genentech, Inc.,
a
Delaware corporation (“Parent”), and each of them, as the sole
and exclusive attorneys-in-fact and proxies of the undersigned, with full power
of substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all Shares and New Shares (each as defined in the that certain Voting
Agreement, dated of even date herewith, by and among Parent, the Company and
Stockholder (the “Voting Agreement”)), in accordance with the
terms of this Proxy until the Expiration Time (as defined in the Voting
Agreement). The Shares beneficially owned by the undersigned stockholder of
the
Company as of the date of this Proxy are listed on the final page of this Proxy.
Upon the undersigned’s execution of this Proxy, any and all prior proxies given
by the undersigned with respect to any Shares are hereby revoked and the
undersigned hereby agrees not to grant any subsequent proxies with respect
to
the Shares or any New Shares until after the Expiration Time (as defined in
the
Voting Agreement).
This
Proxy is irrevocable (to the
fullest extent permitted by law), is coupled with an interest, is granted
pursuant to the Voting Agreement, and is granted in consideration of Parent
entering into that certain Agreement and Plan of Merger, dated as of
November 9, 2006, by and among Parent, the Company and certain other
parties (the “Merger Agreement”). The Merger Agreement provides
for the merger of a wholly-owned subsidiary of Parent with and into the Company
in accordance with its terms (the “Merger”), and Stockholder is
receiving a portion of the proceeds of the Merger.
The
attorneys-in-fact and proxies
named above are hereby authorized and empowered by the undersigned, at any
time
prior to the Expiration Time, to act as the undersigned’s attorney-in-fact and
proxy to vote the Shares and any New Shares, and to exercise all voting, consent
and similar rights of the undersigned with respect to the Shares and new Shares
(including, without limitation, the power to execute and deliver written
consents), at every annual, special, adjourned or postponed meeting of
stockholders of the Company and in every written consent in lieu of such
meeting:
(i) in
favor of adoption of the
Merger Agreement and in favor of any other action contemplated by the Merger
Agreement or required in furtherance of the Merger and the transactions
contemplated by the Merger Agreement (including one or more adjournments
necessary to solicit additional proxies if there are insufficient votes to
adopt
the Merger Agreement and any such related proposals at the time of any meeting
held for such purposes);
(ii) against
approval of
any proposal made in opposition to, or in competition with, consummation of
the
Merger and the transactions contemplated by the Merger Agreement;
(iii)
against any of the following
actions (other than those actions contemplated by the Merger Agreement):
(A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company or any subsidiary of the
Company with any party, (B) any sale, lease, license or transfer of any
significant part of the assets of the Company or any subsidiary of the Company,
(C) any reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any subsidiary of the Company, (D) any
amendment to the certificate of incorporation or bylaws of the Company or any
subsidiary of the Company or any material change in the capitalization of the
Company or any subsidiary of the Company, or the corporate structure of the
Company or any subsidiary of the Company, or (E) any other action that is
intended, or could reasonably be expected to, impede, frustrate, prevent,
interfere with, delay, postpone, discourage, nullify or adversely affect the
Merger, the Merger Agreement or any of the other transactions contemplated
by
the Merger Agreement; and
(iv)
in favor of waiving any notice
that may have been or may be required relating to any such meeting of
stockholders or written consent, the Merger, the Merger Agreement or the
transactions contemplated thereby.
Any
obligation of the undersigned
hereunder shall be binding upon the successors and assigns of the undersigned.
This
Proxy shall terminate, and be
of no further force and effect, automatically as of the Expiration Time.
[Remainder
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*****
This
Proxy shall terminate, and be
of no further force and effect, automatically upon the Expiration Time (as
defined in the Voting Agreement).
Dated:
November 9, 2006
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| Signature |
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| Print Name |
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| Address |
| Shares: |
| Company Common Stock: ___________________________________ |
| Company Options: _________________________________________ |
****Signature
Page to
Proxy****
