Exhibit 99.1
FORM OF STOCKHOLDERS VOTING AGREEMENT
This Stockholders Voting Agreement (the "Agreement") dated as of August
6, 2001 is by and among Genzyme Corporation ("Parent"), a Massachusetts
corporation, and each of the undersigned stockholders (collectively the
"Stockholders" and each a "Stockholder") of Novazyme Pharmaceuticals, Inc. (the
"Company"), a Delaware corporation, listed on Annex 1 hereto.
RECITALS
A. Concurrently with the execution of this Agreement, Parent, the
Company and Rodeo Merger Corp. ("Merger Sub"), a Delaware corporation, have
entered into an Agreement and Plan of Merger (the "Merger Agreement"), which
provides for a merger of Merger Sub with and into the Company (the "Merger").
B. Each 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 capital stock, of the Company (the
"Company Stock") as is set forth opposite such Stockholder's name on Annex 1
(the "Shares").
C. Parent desires each Stockholder to agree, and each Stockholder is
willing to agree, (i) not to transfer or otherwise dispose of any of the Shares,
or any other shares of Company Stock of which such Stockholder acquires
beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) hereafter
and prior to the Expiration Date (as defined in Section 8 below) (together with
the Shares, the "Subject Shares"), except as contemplated hereunder; and (ii) to
vote the Subject Shares so as to facilitate consummation of the Merger and as
otherwise contemplated hereunder.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. AGREEMENT TO RETAIN. Each Stockholder agrees, except as may be
specifically required by court order, not to transfer, sell, exchange, pledge or
otherwise dispose of or encumber any of the Subject Shares, or to make any offer
or agreement relating thereto. Notwithstanding the foregoing, this Agreement
shall not restrict any Stockholder from transferring Subject Shares to other
entities controlled by such Stockholder, or in connection with tax, estate or
financial planning, or the transfer of Subject Shares upon the death of the
Stockholder by operation of law or otherwise, provided any transferee agrees in
writing with Parent to be bound by all of the terms of this Agreement.
2. AGREEMENT TO VOTE. At every meeting of the stockholders of the
Company called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders
of the Company with respect to any of the following, each Stockholder shall vote
(or cause to be voted) the Subject Shares: (i) in favor of adoption of the
Merger Agreement and approval of any matter that could reasonably be expected to
facilitate the Merger; (ii) against approval of any proposal made in opposition
to, or competition with, consummation of the Merger and against any "Alternative
Transaction" (as
defined in the Merger Agreement); (iii) in favor of an amendment to the
Company's Certificate of Designation of Series A Convertible Preferred Stock and
Series B Convertible Preferred Stock (collectively, the "Company Preferred
Stock"), as amended (the "Certificate of Designation"), such that immediately
prior to the Effective Time (as defined in the Merger Agreement), without any
action on the part of Parent, the Company, Merger Sub or any holder of Company
Preferred Stock, each outstanding share of the Company's Series A Convertible
Preferred Stock, $0.01 par value per share, and Series B Convertible Preferred
Stock, $0.01 par value per share, other than shares held by the Company or any
Company Subsidiary (as defined in the Merger Agreement), shall be converted into
shares of Company Common Stock immediately prior to the Effective Time in
accordance with such amended Certificate of Designation, and such shares shall
thereafter be converted into the right to receive the Merger Consideration as
provided for in the Merger Agreement; and (iv) in favor of approving for
purposes of Internal Revenue Code Section 280G any potential "parachute
payments" that may be received by Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxxx
XxXxxxxx, Xxxxx Xxxxxxx and Xxxxxxx Xxxxxx under or by reason of the
acceleration of the exercisablity of options granted them under the Company's
stock option plans in connection with and immediately prior to consummation of
the Merger, the grant of options under the Company's stock option plans within
the one year period preceding the Merger, and the employment arrangement to be
entered into by and between each such individual and Parent or a subsidiary of
Parent.
Each Stockholder agrees not to take any actions contrary to such
Stockholder's obligations under this Agreement.
3. IRREVOCABLE PROXY. At the request of Parent, each Stockholder agrees
to deliver to Parent a proxy in the form attached hereto as Annex 2 (the
"Proxy") designating such persons as proxies as Parent shall specify. At the
request of the Company, Parent shall cause such proxies to vote the Subject
Shares in accordance with this Agreement and the Proxy.
4. AMENDMENTS TO NOVAZYME AGREEMENTS. Prior to the closing of the
Merger, each Stockholder shall execute and deliver each of the following
amendments (each, an "Amendment") applicable to such Stockholder, such
Amendments to be reasonably satisfactory in form and content to Parent and the
Company and conditioned and effective upon the closing of the Merger:
(a) an amendment to that certain Securities Purchase Agreement
dated as of September 13, 2000 (the "Sept. 13 Purchase Agreement"), among the
Company and the purchasers named therein, pursuant to Article XI thereof,
terminating such agreement, and all rights and obligations of the parties
thereunder, in their entirety;
(b) an amendment to that certain Registration Rights Agreement
dated as of September 13, 2000 (the "Sept. 13 Rights Agreement"), by and among
the Company and certain of its Series A Preferred Stockholders, as amended by
Amendment No. 1 thereto dated as of April 17, 2001, pursuant to Section 9(e)
thereof, terminating such agreement, and all rights and obligations of the
parties thereunder, in their entirety;
(c) an amendment to that certain Amended and Restated Rights
Agreement dated as of February 26, 2001 (the "Neose Rights Agreement"), between
the Company and Neose Technologies, Inc., terminating such agreement, and all
rights and obligations of the parties thereunder, in their entirety;
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(d) an amendment to that certain Securities Purchase Agreement
dated April 17, 2001 (the "April 17 Purchase Agreement"), by and among the
Company and the Company's stockholders who are parties thereto, pursuant to
Article XIII thereof (i) extending to the Additional Purchasers (as defined
therein) the rights and obligations of the Initial Purchasers (as defined
therein) with respect to, and the provisions of the April 17 Purchase Agreement
that provide for, the right to purchase (the "Preferred Stock Purchase Right")
additional shares of the Company's Series B Preferred Stock prior to the IND
Filing Notice and/or the Clinical Trial Clearance Notice (as such terms are
defined therein); (ii) providing to all Purchasers (as defined therein)
thereunder the option to purchase all shares of the Company's Series B preferred
stock required to be purchased thereunder after the closing of the Merger, and
to provide for the cashless exercise and/or net issue exercise of the Preferred
Stock Purchase Rights (as defined in the Merger Agreement); and (iii)
terminating such agreement, and all rights and obligations of the parties
thereunder, in their entirety, except that the rights and obligations of such
parties with respect to, and the provisions of the April 17 Purchase Agreement
that provide for, the Preferred Stock Purchase Rights shall survive such
termination as provided in Section 1.7(e) of the Merger Agreement; and
(e) an amendment to that certain Amended and Restated
Stockholders' Agreement dated April 17, 2001 (the "April 17 Stockholders
Agreement, and together with the Sept. 13 Purchase Agreement, the Sept. 13
Rights Agreement, the Neose Rights Agreement and the April 17 Purchase
Agreement, the "Novazyme Agreements"), by and among the Company and the
Company's stockholders who are parties thereto, pursuant to Section 6.4 thereof,
terminating such agreement, and all rights and obligations of the parties
thereunder, in their entirety.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE STOCKHOLDERS. Each
Stockholder hereby represents, warrants and covenants to Parent as follows:
5.1. OWNERSHIP OF SHARES. Except as set forth on Schedule 5.1
hereto, such Stockholder: (i) is the record holder and beneficial owner of the
Shares and the Subject Shares, which at the date hereof 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 the Company other than the
Shares (excluding shares as to which such Stockholder currently disclaims
beneficial ownership in accordance with applicable law); and (iii) has full
power and authority to make, enter into and carry out the terms of this
Agreement and the Proxy. Except as permitted pursuant to Section 1 hereof, no
Stockholder shall take, or fail to take, any action that would make the
foregoing representation and warranty to become untrue.
5.2. NO PROXY SOLICITATIONS. Such Stockholder will not, and
will not permit any entity under such Stockholder's control to: (i) solicit
proxies or become a "participant" in a "solicitation" (as such terms are defined
in Regulation 14A under the Exchange Act) with respect to an Alternative
Transaction or otherwise encourage or assist any party in taking or planning any
action that would compete with, restrain or otherwise serve to interfere with or
inhibit the timely consummation of the Merger in accordance with the terms of
the Merger Agreement;
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(ii) initiate a stockholders' vote or action by consent of stockholders of the
Company with respect to an Alternative Transaction; 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 the Company that takes any action in support
of an Alternative Transaction.
5.3. ACTION BY OWNERS. If the Stockholder is not a natural person,
such as a corporation or partnership, then either (i) the fair market value of
its Shares is less than one-third of the fair market value of its assets or (ii)
the holders of more than 75% of the voting power of the Stockholder's
outstanding interests, voting in accordance with the Stockholder's usual voting
rules, have approved the Stockholder's entering into this Agreement and the
payments described in Section 2(iv) above.
6. NO LIMITATION ON DISCRETION AS DIRECTOR OR OFFICER. This Agreement
is intended solely to apply to the exercise by each Stockholder, in his or her
individual capacity, of rights attaching to ownership of the Subject Shares, and
nothing herein shall be deemed to apply to, or to limit in any manner the
discretion of a Stockholder with respect to, any action that may be taken or
omitted by him or her acting in his or her fiduciary capacity as a director or
officer of the Company.
7. ADDITIONAL DOCUMENTS; APPOINTMENT OF ATTORNEY-IN-FACT. Each
Stockholder hereby covenants and agrees to execute and deliver (i) each
amendment of the Novazyme Agreements to which such Stockholder is a party and
(ii) any additional documents necessary or desirable, in the reasonable opinion
of Parent, to carry out the intent of this Agreement. Each Stockholder hereby
designates and appoints Novazyme Pharmaceuticals, Inc. such Stockholder's
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of such Stockholder, to approve the terms of, and to execute and
deliver on behalf of such Stockholder, each Amendment to each Novazyme Agreement
to which such Stockholder is a party and any additional documents necessary or
desirable, in the reasonable opinion of Parent, to carry out the intent of this
Agreement.
8. TERMINATION. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date. As used herein, the term
"Expiration Date" shall mean the earlier to occur of such date and time as (i)
the Merger shall become effective in accordance with the provisions of the
Merger Agreement or (ii) the termination of the Merger Agreement in accordance
with its terms.
9. MISCELLANEOUS.
9.1. SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement shall remain in full force and effect. Any
provision of this Agreement held invalid or unenforceable only in part or degree
will remain in full force and effect to the extent not held invalid or
unenforceable. The parties further agree to replace such invalid or
unenforceable provision with a valid and enforceable provision that will
achieve, to the extent practical, the purposes of such invalid provision.
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9.2. 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
a Stockholder, on the one hand, and Parent, on the other hand, without prior
written consent of the other. Without the consent of any of the Stockholders,
Parent may assign this Agreement to a permitted assignee under the Merger
Agreement.
9.3. 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.
9.4. ENFORCEMENT. The parties hereto 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 the Stockholders set forth
herein. Accordingly, 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.
9.5. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or facsimile, or sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or overnight courier
(prepaid) to the respective parties as follows:
(a) if to Parent, to:
Genzyme Corporation
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Executive Vice President, Therapeutics and
Genetics
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to a Stockholder:
to the address set forth on Annex 1
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or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
9.6. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to any choice of law principle that would dictate the application
of the laws of another jurisdiction.
9.7. 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.
9.8. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, and all of which together
shall constitute one and the same agreement.
9.9. SECTION HEADINGS. The section headings herein are for
convenience only and shall not affect the construction of interpretation of this
Agreement.
9.10. THIRD PARTY BENEFICIARY. The parties acknowledge and agree
that the Company and each of Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxxx
XxXxxxxx and Xxxxx Xxxxxxx derive independent and significant value from the
agreements set forth herein; that each of them is intended to be a third party
beneficiary of such agreements; and that each of them shall have the right to
enforce such agreements as if each was a party to this Agreement.
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SIGNATURE PAGE
(Stockholders Voting Agreement)
IN WITNESS WHEREOF, the parties have caused this Stockholders Voting
Agreement to be duly executed on the date and year first above written.
PARENT:
GENZYME CORPORATION
By:
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Name:
Title:
STOCKHOLDER:
By:
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Name:
Title:
ANNEX 1
STOCKHOLDER NAME AND
ADDRESS FOR NOTICE NUMBER OF SHARES OF COMPANY STOCK AND OPTIONS OWNED
------------------------------------------ -------------------------------------------------------------------------------
Common Series A Stock Series B Stock Options
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ANNEX 2
IRREVOCABLE PROXY
The undersigned stockholder of Novazyme Pharmaceuticals, Inc. (the
"Company"), a Delaware corporation, hereby irrevocably (to the extent provided
in Section 212 of the Delaware General Corporation Law) appoints Xxxxx Xxxxx, G.
Jan van Heek and Xxxxxxx X. Xxxxx, and each of them individually, 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 right,
subject to the following paragraphs, with respect to the shares of capital stock
of the Company 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 the date that the Agreement and Plan of Merger (the "Merger Agreement")
dated as of August 6, 2001 among Genzyme Corporation ("Parent"), a Massachusetts
corporation, Rodeo Merger Corp., a Delaware corporation, and the Company, shall
be terminated in accordance with its terms or the day the Merger (as defined in
the Merger Agreement) is effective (the "Expiration Date"). 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 irrevocable (to the extent provided in Section 212 of the
Delaware General Corporation Law), is granted pursuant to the Stockholders
Voting Agreement (the "Voting Agreement") dated as of August 6, 2001, and is
granted in consideration of Parent entering into the Merger Agreement. The
attorneys and proxies named above will be empowered at any time prior to the
Expiration Date to exercise all voting rights (including, without limitation,
the power to execute and deliver written consents with respect to the Shares) of
the undersigned, solely to the extent set forth as follows: at every annual,
special or adjourned meeting of stockholders of the Company, and in every
written consent in lieu of such a meeting, or otherwise, (i) in favor of
adoption of the Merger Agreement and the Merger and any matter that could
reasonably be expected to facilitate the Merger, and against any proposal made
in opposition to or competition with the consummation of the Merger, (ii)
against any Alternative Transaction (as defined in the Merger Agreement), (iii)
in favor of an amendment to the Company's Certificate of Designation of Series A
Convertible Preferred Stock and Series B Convertible Preferred Stock
(collectively, the "Company Preferred Stock"), as amended (the "Certificate of
Designation"), such that immediately prior to the Effective Time (as defined in
the Merger Agreement), without any action on the part of Parent, the Company,
Merger Sub or any holder of Company Preferred Stock, each outstanding share of
the Company's Series A Convertible Preferred Stock, $0.01 par value per share,
and Series B Convertible Preferred Stock, $0.01 par value per share, other than
shares held by the Company or any Company Subsidiary (as defined in the Merger
Agreement), shall be converted into shares of Company Common Stock immediately
prior to the Effective Time in accordance with such amended Certificate of
Designation, and such shares shall thereafter be converted into the right to
receive the Merger Consideration as provided for in the Merger Agreement; and
(iv) in favor of approving for purposes of Internal Revenue Code Section 280G
any potential "parachute payments" that may be received by Xxxx X. Xxxxxxx,
Xxxxxxx X. Xxxxxxxx, Xxxxxxx XxXxxxxx, Xxxxx Xxxxxxx and Xxxxxxx Xxxxxx under or
by reason of the acceleration of the exercisability of options granted them
under the Company's stock
option plans in connection with and immediately prior to the consummation of the
Merger, the grant of options under the Company's stock option plans within the
one year period preceding the Merger, and the employment arrangements to be
entered into by and between each such individual and Parent or a subsidiary of
Parent.
The attorneys and proxies named above may only exercise this proxy to
vote the Shares subject hereto at any time prior to the Expiration Date as
contemplated in the prior paragraph, and may not exercise this proxy on any
other matter. The undersigned stockholder may vote the Shares on all other
matters.
All obligations of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is coupled with an interest and is irrevocable.
Dated: ____________, 2001 Signature of Stockholder:
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Print Name of Stockholder:
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Shares owned:
____________ shares of Common Stock
____________ shares of Series A Stock
____________ shares of Series B Stock
Shares subject to outstanding options and
warrants:
_____________ shares of Common Stock
