STOCKHOLDER VOTING AGREEMENT
This Stockholder Voting Agreement (the "Agreement") dated as of March 6,
2000 is by and between Genzyme Corporation ("Genzyme"), a Massachusetts
corporation, and the undersigned stockholder (the "Stockholder") of Biomatrix,
Inc. ("Biomatrix"), a Delaware corporation.
RECITALS
A. Concurrently with the execution of this Agreement, Genzyme,
Biomatrix and Seagull Merger Corporation ("Merger Sub"), a Massachusetts
corporation, have entered into an Agreement and Plan of Merger (the "Merger
Agreement"), which provides for a merger of Biomatrix with and into Merger Sub
(the "Merger").
B. The 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 Biomatrix Common Stock,
$0.0001 par value per share ("Biomatrix Common Stock") as is indicated on the
signature page of this Agreement (the "Shares").
C. Genzyme desires the Stockholder to agree, and the Stockholder is
willing to agree, (i) not to transfer or otherwise dispose of any of the
Shares, or any other shares of Biomatrix Common Stock acquired hereafter and
prior to the Expiration Date (as defined in Section 9 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.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. AGREEMENT TO RETAIN. The 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, except that the Stockholder may make bona
fide gifts to research foundations or other charitable organizations so long
as the donee agrees to be subject to and abide by the terms of this Agreement
("Permitted Transfers").
2. AGREEMENT TO VOTE. At every meeting of the stockholders of
Biomatrix 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 Biomatrix with respect to any of the following, the
Stockholder shall vote the Subject Shares (excluding any Subject Shares sold
pursuant to Permitted Sales): (i) in favor of adoption of the Merger Agreement
and approval of any matter that could reasonably be expected to facilitate the
Merger; and (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) (each of the foregoing is
hereinafter referred to as an "Opposing Proposal"). The Stockholder agrees not
to take any actions contrary to the Stockholder's obligations under this
Agreement.
3. IRREVOCABLE PROXY. At the request of Genzyme, the Stockholder
agrees to deliver to Genzyme a proxy in the form attached hereto as Annex 1
(the "Proxy") designating such persons as proxies as Genzyme shall specify.
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4. ELECTION. The Stockholder agrees that, without Genzyme's prior
consent, he or she will not receive Merger Consideration in the form of cash
with respect to more than 28.38% of the Shares.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE STOCKHOLDER. The
Stockholder hereby represents, warrants and covenants to Genzyme as follows:
5.1. OWNERSHIP OF SHARES. The Stockholder: (i) except for Subject
Shares transferred in Permitted Transfers, is and will be at the time of the
action of the stockholders of Biomatrix on the Merger, the record holder and
beneficial owner of the Shares and the Subject 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 Biomatrix other than the
Shares (excluding shares as to which the 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.
5.2. NO PROXY SOLICITATIONS. The Stockholder will not, and will not
permit any entity under the 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 Opposing Proposal 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; (ii) initiate a stockholders' vote or action by consent of
stockholders of Biomatrix 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 Biomatrix that takes
any action in support of an Opposing Proposal.
6. NO LIMITATION ON DISCRETION AS DIRECTOR OR OFFICER. This Agreement
is intended solely to apply to the exercise by the 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 the Stockholder with respect to, any action which may be taken
or omitted by him or her acting in his or her fiduciary capacity as a director
or officer of Biomatrix. These actions include without limitation any actions
permitted to be taken by Biomatrix and its directors, officers, employees,
agent and other representatives under Section 6.11 of the Merger Agreement.
7. ADDITIONAL DOCUMENTS. The Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Genzyme, to carry out the intent of this Agreement.
8. CONSENTED WAIVER. The Stockholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreements to which the Stockholder is a party or pursuant to
any rights the Stockholder may have.
9. 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) five days after the termination of the Merger
Agreement in accordance with its terms.
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10. MISCELLANEOUS.
10.1. 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 riot 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 possible, the purposes of such invalid provision.
10.2. 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 party without prior written consent of the other. Without
the consent of the Stockholder, Genzyme may assign this Agreement to a
permitted assignee under the Merger Agreement.
10.3. 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.
10.4. ENFORCEMENT. The parties hereto acknowledge that Genzyme may
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 Stockholder set forth
herein. Accordingly, it is agreed that, in addition to any other remedies that
may be available to Genzyme upon any such violation, Genzyme shall have the
right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Genzyme at law or in
equity.
10.5. NOTICES. All notices, requests, claims, demands arid 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 Genzyme, to:
Genzyme Corporation
One Kendall Square
Cambridge, MA 02139-1562
Attn: Earl M. Collier, Jr., Executive Vice President
Telephone: (617) 252-7500
Facsimile: (617) 252-7802
with a copy to:
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
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Attn: Paul M. Kinsella
Telephone: (617) 573-0100
Facsimile: (617) 227-4420
if to the Stockholder:
To the address for notice set forth on the last page hereof.
with a copy to:
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
Attn: Justin P. Morreale
Telephone: (617) 951-8000
Facsimile: (617) 951-8736
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.
10.6. 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.
10.7. 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 panics with
respect to such subject matter.
10.8. COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be an original, and both of which together
shall constitute one and the same agreement.
10.9. SECTION HEADINGS. The section headings herein
are for convenience only and shall not affect the construction of
interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Stockholder Voting
Agreement to be duly executed on the date and year first above written.
GENZYME CORPORATION
By:
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Name:
Title:
STOCKHOLDER:
By:
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Name (print)
Stockholder's Address for Notice:
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Shares owned:
shares of Common Stock
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Shares subject to outstanding options:
shares of Common Stock
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[Signature Page to Stockholder Voting Agreement]
The following Biomatrix, Inc. shareholders signed the form of
Stockholder Voting Agreement.
Number of Shares of
Number of Shares of Common Stock Subject
Individual Common Stock Owned to Outstanding Options
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Endre A. Balazs 3,951,892 0
Janet L. Denlinger 2,080,032 30,000
Rory B. Riggs 1,746,000 0
Maxine Seifert 60,000 109,000
IRREVOCABLE PROXY
The undersigned stockholder of Biomatrix, Inc. ("Biomatrix"), a Delaware
corporation, hereby irrevocably (to the extent provided in Section 212 of the
Delaware General Corporation Law) appoints _____ and _____, 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 Biomatrix beneficially owned by the
undersigned, which shares are listed on the final page of this Proxy (the
"Shares"), and any and all other shares are issued or issuable in respect
thereof on or after the date hereof, until the day the Agreement and Plan of
Merger (the "Merger Agreement") dated as of March 6, 2000 among Genzyme
Corporation ("Genzyme"), a Massachusetts corporation, Seagull Merger
corporation, a Massachusetts corporation, and Biomatrix, 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 Stockholder
Voting Agreement (the "Voting Agreement") dated as of March 6, 2000 between
Genzyme and the undersigned stockholder, and is granted in consideration of
Genzyme 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 Biomatrix, and in every written consent
in lieu of such a meeting, or otherwise, in favor of adoption of the Merger
Agreement and the Merger and any matter could reasonably be expected to
facilitate the Merger, and against any proposal made opposition to or
competition with the consummation of the Merger and against Alternative
Transaction (as defined in the Merger Agreement).
The attorneys and proxies named above may only exercise this proxy to
vote the Shares subject hereto at any time prior to the Expiration Data at
every annual, special or adjourned meeting of the stockholders of Biomatrix
and in every written consent in lieu of such meeting, 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 merger, consolidation, sale
of assets, reorganization or recapitalization of Biomatrix with any party
other than Genzyme and its affiliates, and against any liquidation or winding
up of Biomatrix, 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.
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This Proxy is irrevocable.
Dated:________________, 2000 Signature of Stockholder:
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Print Name of Stockholder:
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Shares owned:
shares of Common Stock
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Shares subject to outstanding options:
shares of Common Stock
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