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Exhibit 2.2
FORM OF STOCKHOLDER VOTING AGREEMENT
This Stockholder Voting Agreement (the "Agreement") dated as of April 23,
2001 is by and among Antigenics Inc. ("Parent"), a Delaware corporation, and
each of the undersigned stockholders (collectively the "Stockholders" and each a
"Stockholder") of Aronex Pharmaceuticals, Inc. ("Company"), a Delaware
corporation, listed on Annex 1 hereto.
RECITALS
A. Concurrently with the execution of this Agreement, Parent, Company and
NASA 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 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 common stock, $0.001 par value per
share, of Company ("Company Common 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 Common 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.
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.
2. Agreement to Vote. At every meeting of the stockholders of 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
Company with respect to any of the following, each Stockholder shall vote 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; 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"). 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.
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4. Representations, Warranties and Covenants of the Stockholders. Each
Stockholder hereby represents, warrants and covenants to Parent as follows:
4.1. Ownership of Shares. Such Stockholder: (i) is and will be at
the time of the action of the stockholders of Company 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 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.
4.2. 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 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 Company 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 Company that takes any action in
support of an Opposing Proposal.
5. 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 Company. These actions include without limitation any actions
permitted to be taken by Company and its directors, officers, employees, agents
and other representatives under Section 4.10 of the Merger Agreement.
6. Additional Documents. Each Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent, to carry out the intent of this Agreement.
7. Consented Waiver. Each 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 such Stockholder is a party or pursuant to any rights
such Stockholder may have.
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.
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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.
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:
Antigenics Inc.
630 Fifth Avenue, Suite 1200
New York, New York 10111
Attn: Garo H. Armen, Ph.D.
Telephone: (212) 332-4772
Facsimile: (212) 332-4778
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with a copy to:
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108-3109
Attn: Paul M. Kinsella
Telephone: (617) 573-0100
Facsimile: (617) 227-4420
if to a Stockholder:
to the address set forth on Annex 1
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.
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[Signature Page to Stockholder Voting Agreement]
IN WITNESS WHEREOF, the parties have caused this Stockholder Voting
Agreement to be duly executed on the date and year first above written.
ANTIGENICS INC.
By:_____________________________________
Name:
Title:
STOCKHOLDERS:
________________________________________
[Signature Page to Stockholder Voting Agreement]
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ANNEX 1
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SHARES OF
COMPANY COMMON STOCK
-----------------------------------------
STOCKHOLDER NAME AND SUBJECT TO
ADDRESS FOR NOTICE OWNED OUTSTANDING OPTIONS*
------------------ ----- --------------------
Essex Woodlands Health Ventures IV, L.L.C. 2,285,715 0
Del Lago Plaza, Suite 101
15001 Walden Road
Montgomery, Texas 77356
Prince Venture Partners III, L.P. 343,539 0
c/o Ford Partners
25 Ford Road
Westport, Connecticut 06880
Geoffrey F. Cox, Ph.D. (1) 96,334 581,669
Martin P. Sutter (in his individual capacity) 92,502 146,667
Use address from Essex Woodlands Health Ventures IV,
L.L.C. above
James R. Butler 26,347 47,500
Group Vice President
ALZA Corporation
ALZA International
1950 Charleston Road
Mountain View, California 94043
Phyllis Gardner, M.D. 8,447 40,000
Senior Associate Dean for Education and
Student Affairs
Stanford University School of Medicine
Office of the Dean, Room M121
300 Pasteur Drive
Stanford, California 94305
Paul W. Hobby 2,975 40,000
Chairman and CEO
Hobby Media Services
2131 San Felipe
Houston, Texas 77019-5620
Gabriel Lopez-Berestein, M.D. 187,107 128,500
M.D. Anderson Cancer Center
6th Floor, Room Y6.5601, Box 60
1515 Holcombe Boulevard
Houston, Texas 77030
David J. McLachlan 25,289 40,000
Genzyme Corporation
One Kendall Square
Cambridge, Massachusetts 02139
Gregory F. Zaic 16,744 62,500
Use address from Prince Venture Partners III,
L.P. above
Paul A. Cossum (1) 7,973 139,045
Anthony Williams, M.D. (1) 4,347 123,230
Terance Murnane (1) 16,445 92,675
Totals 3,113,764 1,441,786
* The shares underlying options listed above are subject to options
exercisable within 60 days from the date of the Merger Agreement.
(1) Address for notice may be delivered to Aronex Pharmaceuticals, Inc., 8707
Technology Forest Place, The Woodlands, Texas 77381-1191.
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ANNEX 2
IRREVOCABLE PROXY
The undersigned stockholder of Aronex Pharmaceuticals, Inc. ("Company"), a
Delaware corporation, hereby irrevocably (to the extent provided in Section 212
of the Delaware General Corporation Law) appoints Garo Armen, as the sole and
exclusive attorney and proxy 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 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 April 23,
2001 among Antigenics Inc. ("Parent"), a Delaware corporation, NASA Merger
Corp., a Delaware corporation, and 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 Stockholder Voting
Agreement (the "Voting Agreement") dated as of April 23, 2001, and is granted in
consideration of Parent entering into the Merger Agreement. The attorney and
proxy 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 Company, 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 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 and against any Alternative Transaction (as defined
in the Merger Agreement).
The attorney and proxy 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.
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This Proxy is coupled with an interest and is irrevocable.
Dated: ____________, 2001 Signature of Stockholder:
___________________________________
Print Name of Stockholder:
___________________________________
Shares owned:
____________ shares of Common Stock
Shares subject to outstanding options:
_____________ shares of Common Stock
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SIGNATORIES TO THE VOTING AGREEMENT
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James R. Butler
Paul Cossum, Ph.D.
Geoffrey Cox, Ph.D.
Essex Woodlands Health Ventures IV, L.L.C.
Phyllis I. Gardner, M.D.
Paul W. Hobby
Gabriel Lopez-Berestein, M.D.
David J. McLachlan
Terance Murnane, CPA
Prince Venture Partners III, L.P.
Martin P. Sutter
Tony Williams, M.D.
Gregory F. Zaic