EXHIBIT 9.1
VOTING AGREEMENT
by and between
WARBURG, ▇▇▇▇▇▇ EQUITY PARTNERS, L.P.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
and acknowledged by
ZYMOGENETICS, INC.
OCTOBER 20, 2000
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made as of October 20, 2000, by
and between Warburg, ▇▇▇▇▇▇ Equity Partners, L.P. ("WPEP") and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ("Bertarelli"), and acknowledged by ZymoGenetics, Inc., a Washington
corporation (the "Company").
RECITALS
A. WPEP and Bertarelli are acquiring shares of Series B Convertible
Preferred Stock of the Company (the "Series B Stock") pursuant to the terms of a
Series B Preferred Stock Purchase Agreement dated October 20, 2000, among the
Company, WPEP, Bertarelli and certain other parties (the "Purchase Agreement").
B. To induce WPEP to enter into the Purchase Agreement, Bertarelli has
agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein;
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Voting of Shares
1.1. Pursuant to the provisions of RCW 23B.07.310 of the Washington
Business Corporation Act, Bertarelli hereby grants WPEP the right at any
Restricted Time (as defined below) to vote, through WPEP's designated agent
appointed at the sole discretion of WPEP, all shares of voting preferred stock
and common stock of the Company ("Voting Stock") owned by Bertarelli at all
meetings of the shareholders of the Company, to cause such shares to be counted
as present at any such meetings for purposes of establishing a quorum and to
exercise all consensual or other voting rights with respect to the Voting Stock,
in each case in such manner as WPEP, in its sole discretion, shall determine.
Bertarelli hereby acknowledges that the foregoing grant of rights is coupled
with an interest and is thus irrevocable. "Restricted Time" shall mean any time
following the date hereof when (i) Bertarelli and all of his Affiliates (ii)
Serono S.A. and all of its Affiliates and (iii) Novo Nordisk Pharmaceuticals,
Inc. ("NNPI") and all of its Affiliates, subsidiaries and every other person who
constitutes a "group" with NNPI for purposes of Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") collectively own
beneficially and/or of record more than 50% of the then outstanding shares of
voting capital stock of the Company. The determination of whether any given
time is a Restricted Time shall be made based upon the books and records of the
Company.
As used in this Agreement, "Affiliate" and "Affiliated" refer to any person
who is an "affiliate" as defined in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act. For purposes of this definition, "person"
means any individual, firm, corporation,
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constituent members of a partnership, constituent members of a limited liability
company, trust, incorporated or unincorporated association, joint venture, joint
stock company, governmental authority or other entity of any kind, and includes
any successor (by merger or otherwise) of such entity.
1.2 In furtherance of the foregoing agreement, Bertarelli shall,
simultaneously with the acquisition of the Series B Shares pursuant to the
Purchase Agreement, execute an irrevocable proxy, substantially in the form
attached hereto, pursuant to the provisions of RCW 23B.07.220 of the Washington
Business Corporation Act, in favor of WPEP or its designee, permitting WPEP or
its designee to vote all Voting Stock owned by Bertarelli, and Bertarelli shall
deliver such proxy to WPEP.
1.3 A counterpart hereof shall be deposited with the Company at its
principal office and shall be subject to the same rights of examination by a
shareholder of the Company, in person or by agent or attorney, as are the books
and records of the Company. Bertarelli covenants and agrees, and the Company
acknowledges, that each certificate representing shares owned by it shall
contain a statement that the shares represented by the certificate are subject
to the provisions of a voting agreement, a counterpart of which has been
deposited with the Company at its principal office.
2. Miscellaneous
2.1 Specific Enforcement
Bertarelli expressly agrees that WPEP will be irreparably damaged if this
Agreement is not specifically enforced. Upon a breach or threatened breach of
the terms, covenants and/or conditions of this Agreement by Bertarelli, WPEP
shall, in addition to all other remedies, each be entitled to a temporary or
permanent injunction, without showing any actual damage, and/or a decree for
specific performance, in accordance with, and so as to effectuate, the
provisions of this Agreement. In the event that a bond is required to be posted
in connection with the specific enforcement of this Agreement, the parties agree
that a reasonable amount of such bond is $1,000.
2.2 Notices
Unless otherwise provided, any notice under this Agreement shall be given
in writing and shall be deemed effective: (a) upon personal delivery to the
party to be notified; (b) upon confirmation of receipt by fax by the party to be
notified; (c) one business day after deposit with a nationally-recognized
overnight courier, prepaid for overnight delivery and addressed as set forth in
(d); or (d) five (5) days after deposit with the U.S. Post Office, postage
prepaid, registered or certified with return receipt requested and addressed to
the party to be notified at the address indicated for such party on the
signature page, or at such other address as such party may designate by 10 days'
advance written notice to the other parties given in the foregoing manner.
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2.3 Termination, Amendments and Waivers
This Agreement may be terminated, and any term of this Agreement may be
amended and the observance of any term may be waived (either generally or in a
particular instance and either retroactively or prospectively), only upon the
written consent of WPEP.
2.4 Governing Law; Jurisdiction; Venue
This Agreement shall be governed by and construed under the laws of the
State of Washington without regard to principles of conflict of laws. The
parties irrevocably consent to the jurisdiction and venue of the state and
federal courts located in King County, Washington in connection with any action
relating to this Agreement.
2.5 Successors and Assigns; Transfers
The terms and conditions of this Agreement shall inure to the benefit of
and be binding on the respective heirs, personal representatives, successors and
assigns of the parties.
2.6 Severability
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement, and
the balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
2.7 Entire Agreement; Counterparts
This Agreement constitutes the entire agreement between the parties about
its subject and supersedes all prior agreements. This Agreement may be executed
in two or more counterparts, which together shall constitute one instrument.
2.8 Authorization
Each party represents that this Agreement has been duly authorized,
executed and delivered by such party and constitutes a valid and binding
obligation of such party, enforceable against such party in accordance with its
terms.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Warburg, ▇▇▇▇▇▇ Equity Partners, L.P.
By Warburg, ▇▇▇▇▇▇ & Co.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Partner
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Acknowledged By:
ZymoGenetics, Inc.
By: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
President and CEO
Address: ZymoGenetics
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▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇
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Fax: ▇▇▇ ▇▇▇ ▇▇▇▇
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Telephone: ▇▇▇ ▇▇▇ ▇▇▇▇
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Warburg, ▇▇▇▇▇▇ Equity Partners, L.P.
By Warburg, ▇▇▇▇▇▇ & Co.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇
Silver Tide Holdings S.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
Acknowledged By:
ZymoGenetics, Inc.
By: /s/ SHINKO ▇. ▇▇▇▇▇▇
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Shinko ▇. ▇▇▇▇▇▇
Assistant Secretary and Treasurer
Senior Vice President and Chief Business Operations Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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EXHIBIT A
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IRREVOCABLE PROXY
TO VOTE STOCK OF COMPANY
The undersigned shareholder of ZymoGenetics, Inc., a Washington corporation
("Company"), hereby irrevocably (to the fullest extent permitted by the
Washington Business Corporation Act) appoints ▇▇▇▇▇▇▇▇ ▇▇▇▇ , or any other
designee of Warburg, ▇▇▇▇▇▇ Equity Partners, L.P. ("WPEP"), as the sole and
exclusive attorney and proxy of the undersigned, with full power of substitution
and resubstitution, to vote and exercise all voting and related rights (to the
fullest extent that the undersigned is entitled to do so) with respect to all of
the shares of capital stock of Company that now are or hereafter may be
beneficially owned by the undersigned, and any and all other shares or
securities of Company issued or issuable in respect thereof, or in substitution
or exchange thereof, on or after the date hereof (collectively, the "Shares") in
accordance with the terms of this Irrevocable Proxy. The Shares beneficially
owned by the undersigned shareholder of Company as of the date of this
Irrevocable Proxy are listed on the final page of this Irrevocable Proxy. Upon
the undersigned's execution of this Irrevocable Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares.
This Irrevocable Proxy is irrevocable (to the fullest extent provided in
and allowed by the Washington Business Corporation Act), is coupled with an
interest, including, but not limited to, that certain Voting Agreement dated as
of even date herewith by and between WPEP and the undersigned, and is granted in
consideration of WPEP entering into that certain Series B Preferred Stock
Purchase Agreement dated October 20, 2000, among the Company, WPEP, the
undersigned and certain other parties.
The attorney and proxy named or designated above is hereby authorized and
empowered by the undersigned, at any Restricted Time, to act as the
undersigned's attorney and proxy to vote the Shares, and to exercise all voting
and other rights of the undersigned with respect to the Shares (including,
without limitation, the power to execute and deliver written consents pursuant
to the Washington Business Corporation Act) on all matters at every annual,
special or adjourned meeting of the shareholders of the Company and in every
written consent in lieu of such meeting. "Restricted Time" shall mean any time
following the date hereof when (i) undersigned and all of its Affiliates, (ii)
Serono S.A. and all of its Affiliates and (iii) Novo Nordisk Pharmaceuticals,
Inc. ("NNPI") and all of its Affiliates, subsidiaries and every other person who
constitutes a "group" with NNPI for purposes of Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") collectively own
beneficially and/or of record more than 50% of the then outstanding shares of
voting capital stock of the Company. The determination of whether any given
time is a Restricted Time shall be made based upon the books and records of the
Company.
As used in this Agreement, "Affiliate" and "Affiliated" refer to any person
who is an "affiliate" as defined in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act. For purposes of this definition, "person"
means any individual, firm, corporation,
Act. For purposes of this definition, "person" means any individual, firm,
corporation, constituent members of a partnership, constituent members of a
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, governmental authority or other entity of
any kind, and includes any successor (by merger or otherwise) of such entity.
All authority herein conferred shall survive the death or incapacity
of the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: October 20, 2000
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Silver Tide Holding S.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
(Signature of Company Shareholder)
Shares beneficially owned:
398,502 shares of Company Common Stock
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