EXHIBIT 10.1
STOCKHOLDER VOTING
AGREEMENT
BY AND BETWEEN
AMGEN INC.
AND
The Stockholders Identified on Schedule A
attached hereto
Dated as of March 28, 2004
STOCKHOLDER VOTING
AGREEMENT
This STOCKHOLDER VOTING AGREEMENT
(this “ Agreement ”) is entered into as of March
28, 2004, by and among Amgen Inc., a Delaware corporation (“
Parent ”), and the Stockholders of Tularik Inc., a
Delaware corporation (the “ Company ”)
identified on Schedule A attached hereto (each a “
Stockholder ” and collectively, the “
Stockholders ”).
W I T N E S S E T H:
WHEREAS, as of the date hereof, each
Stockholder “beneficially owns” (as such term is
defined in Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended) and is entitled to dispose of (or to direct
the disposition of) and to vote (or to direct the voting of) that
total number of shares of common stock, par value $0.001 per share
(the “ Common Stock ”) of the Company as are set
forth adjacent to such Stockholder’s name on Schedule
A attached hereto (the “ Owned Shares ”), as
such shares may be adjusted after the date hereof by stock
dividend, stock split, recapitalization, combination, merger,
consolidation, reorganization or other change in the capital
structure of the Company affecting the Common Stock (such shares of
Common Stock, together with any other shares of Common Stock the
voting power over which is acquired by a Stockholder during the
period from and including the date hereof through and including the
date on which this Agreement is terminated in accordance with its
terms, are collectively referred to herein as the “
Subject Shares ”);
WHEREAS, Parent, Arrow Acquisition,
LLC, a Delaware limited liability company wholly-owned by Parent
(“ Merger Sub ”), and the Company propose to
enter into an Agreement and Plan of Merger, dated as of the date
hereof (the “ Merger Agreement ”), pursuant to
which the Company will merge with and into Merger Sub, with Merger
Sub surviving as a limited liability company wholly-owned by Parent
(the “ Merger ”); and
WHEREAS, as a condition to the
willingness of Parent to enter into the Merger Agreement, and as an
inducement and in consideration therefor, Parent has required that
the Stockholders agree, and the Stockholders have agreed, to enter
into this Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual premises, representations, warranties,
covenants and agreements contained herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized
Terms . For purposes of
this Agreement, capitalized terms used and not defined herein shall
have the respective meanings ascribed to them in the Merger
Agreement.
ARTICLE II
VOTING AGREEMENT AND IRREVOCABLE
PROXY
Section 2.1 Agreement to Vote the
Subject Shares . Each
Stockholder, in its capacity as such, hereby agrees that, during
the period commencing on the date hereof and
continuing until the termination of this
Agreement (such period, the “ Voting Period ”),
at any meeting (or any adjournment or postponement thereof) of the
holders of any class or classes of the capital stock of the
Company, however called, or in connection with any written consent
of the holders of any class or classes of the capital stock of the
Company, such Stockholder shall vote or cause to be voted the
Subject Shares (x) in favor of the approval of the terms of the
Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement (and any actions required in
furtherance thereof), (y) against any action, proposal, transaction
or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or of such
Stockholder contained in this Agreement, and (z) except as
otherwise agreed to in writing in advance by Parent, against the
following actions or proposals: (i) any Acquisition Proposal; and
(ii) (A) any change in the persons who constitute the board of
directors of the Company that has not been previously approved by
at least a majority of the persons who were directors of the
Company as of the date of this Agreement (or their successors who
were so approved); (B) any change in the present capitalization of
the Company or any amendment of the Company’s articles of
incorporation or bylaws; (C) any other material change in the
Company’s corporate structure or business; or (D) any other
action or proposal involving the Company or any of its subsidiaries
that is intended, or could reasonably be expected, to prevent,
impede, interfere with, delay, postpone or adversely affect the
transactions contemplated by the Merger Agreement; provided,
however, nothing in this Agreement shall be interpreted as
obligating the Stockholders to exercise any options to acquire
shares of Common Stock. Any such vote shall be cast or consent
shall be given in accordance with such procedures relating thereto
so as to ensure that it is duly counted for purposes of determining
that a quorum is present and for purposes of recording the results
of such vote or consent. During the Voting Period, each Stockholder
agrees not to enter into any agreement, commitment, letter of
intent, agreement in principle, or understanding with any Person
that violates or conflicts with or could reasonably be expected to
violate or conflict with the provisions and agreements contained in
this Agreement.
Section 2.2 Grant of Irrevocable
Proxy . Each Stockholder
hereby appoints Parent and any designee of Parent, and each of them
individually, as such Stockholder’s proxy and
attorney-in-fact, with full power of substitution and
resubstitution, to cause such Stockholder’s shares to be
counted as present at any meeting of the Company’s
stockholders during the Voting Period and to vote or act by written
consent during the Voting Period with respect to the Subject Shares
in accordance with Section 2.1. This proxy is given to secure the
performance of the duties of such Stockholder under this Agreement.
Each Stockholder shall promptly cause a copy of this Agreement to
be deposited with the Company at its principal place of business.
Each Stockholder shall take such further action or execute such
other instruments as may be necessary to effectuate the intent of
this proxy. Each Stockholder hereby revokes all other proxies and
powers of attorney with respect to its Subject Shares that it may
have previously granted, in each case to the extent such prior or
subsequent proxies or powers of attorney would prevent such
Stockholder from complying with such Stockholder’s
obligations under this Agreement.
Section 2.3 Nature of Irrevocable
Proxy . The proxy and
power of attorney granted pursuant to Section 2.2 by Stockholder
shall be irrevocable during the Voting Period, shall be deemed to
be coupled with an interest sufficient in law to support an
irrevocable proxy and shall revoke any and all prior proxies
granted by such Stockholder. The power of attorney granted
by
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each Stockholder herein is a durable power of
attorney and shall survive the dissolution, bankruptcy, death or
incapacity of such Stockholder. The proxy and power of attorney
granted hereunder shall terminate upon the termination of this
Agreement pursuant to Section 6.1.
Section 2.4 Legend
. To the extent a
Stockholder’s Subject Shares are in certificated form, such
Stockholder shall promptly cause such certificate representing its
Subject Shares to be surrendered and shall instruct the transfer
agent for the Subject Shares to cause the following legend to be
conspicuously noted thereon:
“THE SHARES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDER VOTING AGREEMENT
DATED AS OF MARCH 28, 2004. THE STOCKHOLDER VOTING AGREEMENT
RESTRICTS THE TRANSFERABILITY OF THE SHARES REPRESENTED BY THIS
CERTIFICATE AND INCLUDES A VOTING AGREEMENT AND AN IRREVOCABLE
PROXY TO VOTE THE SHARES REPRESENTED BY THIS
CERTIFICATE.”
To the extent a Stockholder’s
Subject Shares are not in certificated form, such Stockholder
shall, upon the request of Parent, use its best efforts to promptly
obtain certificates representing Subject Shares that are currently
uncertificated and shall promptly thereafter cause such
certificates to be surrendered and shall instruct the transfer
agent for the Subject Shares to cause the foregoing legend to be
conspicuously noted thereon.
ARTICLE III
COVENANTS
Section 3.1 Generally
. Each Stockholder agrees that
during the Voting Period, except as contemplated by the terms of
this Agreement, it shall not (i) sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of (collectively, a “
Transfer ”), or enter into any contract, option or
other agreement with respect to, or consent to, a Transfer of, any
or all of the Subject Shares, (ii) grant any proxy, power of
attorney, or other authorization in or with respect to the Subject
Shares, or (iii) take any action that would have the effect of
preventing, impeding, interfering with or adversely affecting its
ability to perform its obligations under this Agreement;
provided, however , the parties agree and acknowledge that
certain of the Subject Shares, as identified on Schedule B
hereto, have been previously been pledged to the Company pursuant
to certain stock pledge agreements and as security for certain loan
agreements between the Company and the Stockholders; provided
further, David V. Goeddel shall be permitted to transfer those
Subject Shares beneficially owned by him to any trust, beneficiary,
administrator, custodian or otherwise for estate planning purposes,
provided that such transferee enters into a written agreement in
favor Parent agreeing to be bound by the terms and conditions of
this Agreement.
Section 3.2 Standstill
Obligations of Stockholders. Each Stockholder covenants and agrees with
Parent that, during the Voting Period:
(a) Such Stockholder shall not, nor
shall such Stockholder permit any of its controlled Affiliates to,
nor shall such Stockholder act in concert with or permit any of its
controlled Affiliates to act in concert with any Person to make, or
in any manner participate in,
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directly or indirectly, a
“solicitation” of “proxies” (as defined in
the rules and regulations of the Securities and Exchange
Commission) or powers of attorney or similar rights to vote, or
seek to advise or influence any Person with respect to the voting
of, any shares of Common Stock in connection with any vote or other
action on any matter, other than to recommend that stockholders of
the Company vote in favor of the Merger and the Merger Agreement
and otherwise as expressly provided by Article II of this
Agreement.
(b) Such Stockholder shall not, nor
shall such Stockholder permit any of its controlled Affiliates to,
nor shall such Stockholder act in concert with or permit any of its
controlled Affiliates to act in concert with any Person to, deposit
any shares of Common Stock in a voting trust or subject any shares
of Common Stock to any arrangement or agreement with any Person
with respect to the voting of such shares of Common Stock, except
as provided by Article II of this Agreement.
(c) Such Stockholder shall not, and
shall cause its Representatives not to, directly or indirectly: (i)
solicit, initiate or induce or knowingly or intentionally
facilitate or encourage any inquiry with respect to, or the making,
submission or announcement of, any Acquisition Proposal or any
proposal that would reasonably be expected to lead to any
Acquisition Proposal, (ii) furnish to any Person other than Parent,
Merger Sub or their Affiliates any information with respect to any
proposal that constitutes or would reasonable be expected to lead
to any Acquisition Proposal, (iii) participate or engage in
discussions or negotiations with any Person with respect to any
Acquisition Proposal, except to notify such Person as to the
existence of these provisions, or (iv) enter into any letter of
intent or similar document or any agreement, commitment or
understanding contemplating or otherwise relating to any
Acquisition Proposal or a transaction contemplated thereby;
provided, however, that in connection with Acquisition Proposals as
to which Parent has received a Superior Proposal Notice, such
Stockholder may provide information and engage in discussions to
the same extent as the Company is so permitted pursuant to Section
6.4(c) of the Merger Agreement. Each Stockholder hereby represents
that it is not now engaged in discussions or negotiations with any
party other than Parent with respect to any Acquisition Proposal.
Each Stockholder shall (i) promptly notify Parent (orally and in
writing) if any offer is made to such Stockholder, any discussions
or negotiations are sought to be initiated with such Stockholder,
any inquiry, proposal or contact is made or any information is
requested from such Stockholder with respect to any Acquisition
Proposal, (ii) promptly notify Parent of the terms of any proposal
that such Stockholder may receive in respect of any Acquisition
Proposal, and the identity of the prospective purchaser, (iii)
promptly provide Parent with a copy of any such offer, if written,
or a written summary of such offer, if not in writing, and (iv)
promptly keep Parent informed in all material respects of the
status and details (including material amendments or proposed
material amendments) of any such Acquisition Proposal of which such
Stockholder is aware.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
STOCKHOLDER
Each Stockholder hereby represents
and warrants to Parent as follows:
Section 4.1 Authority
. Such Stockholder has all legal
capacity and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
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This Agreement has been duly executed and
delivered by such Stockholder and constitutes a valid and binding
obligation of such Stockholder, enforceable in accordance with its
terms.
Section 4.2 Ownership of
Shares . As of the date
hereof, such Stockholder is the lawful owner of the Owned Shares
and has the sole power to vote (or cause to be voted) and dispose
of such shares of Common Stock. Such Stockholder holds that number
of certificated Owned Shares and uncertificated Owned Shares, in
each case, as identified on Schedule A hereto. Other than
the Subject Shares and options to purchase Common Stock, as
identified on Schedule A (which Schedule identifies any such
exception by Stockholder), such Stockholder does not own or hold
any right to acquire any additional shares of any class of capital
stock of the Company or other securities of the Company or any
interest therein or any voting rights with respect to any
securities of the Company. The Subject Shares are not subject to
any voting trust agreement or other contracts, agreement,
arrangement, commitment or understanding to which such Stockholder
is party restricting or otherwise relating to the voting, dividend
rights or disposition of the Subject Shares. Except as set forth on
Schedule B hereto (which Schedule identifies any such
exception by Stockholder), such Stockholder has good and valid
title to the Owned Shares, free and clear of any and all pledges,
mortgages, liens, charges, proxies, voting agreements,
encumbrances, adverse claims, options, security interests and
demands of any nature or kind whatsoever, other than those created
by this Agreement.
Section 4.3 No
Conflicts . (i) No filing
with any Governmental Entity, and no authorization, consent or
approval of any other Person is necessary for the execution of this
Agreement by such Stockholder and the consummation by such
Stockholder of the transactions contemplated hereby and (ii) none
of the execution and delivery of this Agreement by such
Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby or compliance by such Stockholder
with any of the provisions hereof shall (A) result in, or give rise
to, a violation or breach of or a default under any of the terms of
any material contract, understanding, agreement or other instrument
or obligation to which such Stockholder is a party or by which such
Stockholder or any of its Subject Shares or assets may be bound, or
(B) violate any applicable Law which could reasonably be expected
to adversely affect such Stockholder’s ability to perform its
obligations under this Agreement.
Section 4.4 Reliance by
Parent . Such Stockholder
understands and acknowledges that Parent is entering into the
Merger Agreement in reliance upon the execution and delivery of
this Agreement by such Stockholder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
PARENT
Parent hereby represents and
warrants to each Stockholder as follows:
Section 5.1 Due Organization,
etc . Parent is a company
duly organized and validly existing under the laws of the
jurisdiction of its incorporation. Parent has all necessary
corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby by Parent have been duly
authorized by all necessary corporate action on the part of
Parent.
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Section 5.2 Conflicts
. (i) No filing with any
Governmental Entity, and no authorization, consent or approval of
any other Person is necessary for the execution of this Agreement
by Parent and the consummation by Parent of the transactions
contemplated hereby and (ii) none of the execution and delivery of
this Agreement by Pare
