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EXHIBIT 99.2
FORM OF VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of November ___, 2000, by and
between AURORA BIOSCIENCES CORPORATION, a Delaware corporation ("Parent"), and
__________ ("Stockholder").
RECITALS
A. Parent, AURORA ACQUISITION CORP., a Wisconsin corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), and PanVERA CORPORATION, a
Wisconsin corporation (the "Company"), certain stockholders of the Company and a
representative of such stockholders are entering into an Agreement and Plan of
Merger and Reorganization of even date herewith (the "Merger Agreement") which
provides (subject to the conditions set forth therein) for the merger of Merger
Sub with and into the Company (the "Merger"). Capitalized terms not otherwise
defined herein shall have the meanings given to them in the Merger Agreement.
B. In order to induce Parent and Merger Sub to enter into the Merger
Agreement, Stockholder, in its or his capacity as a Stockholder of the Company,
is entering into this Voting Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Voting Agreement:
(a) "COMPANY COMMON STOCK" shall mean the common stock, $0.025
par value per share, of the Company.
(b) "EXPIRATION DATE" shall mean the earlier of (i) the date upon
which the Merger Agreement is validly terminated, or (ii) the Effective Time (as
defined in the Merger Agreement).
(c) Stockholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if Stockholder is the: (i) record owner of such
security; or (ii) "beneficial owner" (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934) of such security; provided, however, that
Stockholder shall not be deemed to Own a security solely because of
Stockholder's status as an executive officer, director, partner or member of a
Person that owns such security.
(d) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental or
self-regulatory authority.
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(e) "SUBJECT SECURITIES" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock and all options, warrants
and other rights to acquire shares of Company Common Stock) Owned by Stockholder
as of the date of this Agreement; and (ii) all additional securities of the
Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares of Company
Common Stock) of which Stockholder acquires Ownership during the period from the
date of this Agreement through the Expiration Date.
(f) A Person shall be deemed to have a effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein; or (iii) reduces such Person's beneficial ownership or
interest in or risk relating to any such security.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not (i) cause or permit
any Transfer of any of the Subject Securities to be effected other than pursuant
to the Merger (as defined in the Merger Agreement); or (ii) create or permit to
exist any Encumbrance with respect to any Subject Securities unless each Person,
in either (i) or (ii) above, to which any of such Subject Securities, or any
interest in any of such Subject Securities, is or may be transferred shall have:
(a) executed a counterpart of this Voting Agreement and a proxy in the form
attached hereto as EXHIBIT A (with such modifications as Parent may request);
and (b) agreed to hold such Subject Securities (or interest in such Subject
Securities) subject to all of the terms and provisions of this Voting Agreement.
2.2 TRANSFER OF VOTING RIGHTS. Stockholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date,
Stockholder shall ensure that: (a) none of the Subject Securities is deposited
into a voting trust; and (b) no proxy is granted, and no voting agreement or
similar agreement is entered into, with respect to any of the Subject
Securities.
SECTION 3. VOTING OF SHARES
3.1 VOTING AGREEMENT. Stockholder agrees that, during the period from
the date of this Voting Agreement through the Expiration Date, Stockholder
shall, unless otherwise directed in writing by Parent, vote, or give a consent
with respect to, the Subject Securities or cause the Subject Securities to be so
voted or consented to (to the extent such securities are entitled to be voted)
in favor of the approval and adoption of the Merger Agreement and the approval
of the Merger and in favor of any other matter proposed to be approved by the
holders of the Subject Securities pursuant to the terms of the Merger Agreement.
3.2 PROXY; FURTHER ASSURANCES.
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Contemporaneously with the execution of this Voting Agreement: (i)
Stockholder shall execute and deliver to Parent a proxy in the form attached to
this Voting Agreement as EXHIBIT A, which shall be irrevocable to the fullest
extent permitted by law, with respect to the shares referred to therein (the
"Proxy"); and (ii) Stockholder shall cause to be delivered to Parent an
additional proxy (in the form attached hereto as EXHIBIT A) executed on behalf
of the record owner of any outstanding shares of Company Common Stock that are
Owned.
SECTION 4. NO SOLICITATION
Until the earlier of the Effective Time or the date of termination of
the Merger Agreement, the Stockholder will not directly or indirectly, take any
of the following actions with any party other than Parent and its designees: (a)
solicit, encourage, initiate or participate in any negotiations or discussions
with respect to, any offer or proposal to acquire all, substantially all or a
significant portion of the Company's business, properties or technologies or any
portion of the Company's capital stock (whether or not outstanding) whether by
merger, purchase of assets, tender offer or otherwise, or effect any such
transaction, (b) disclose any information (other than information which would
otherwise be required to be disclosed by the Company in a report filed pursuant
to the Exchange Act, if the Company were subject to the reporting requirements
of the Exchange Act) not customarily disclosed to any person concerning the
Company's business, technologies or properties or afford to any person or entity
access to its properties, technologies, books or records, (c) assist or
cooperate with any person to make any proposal to purchase all or any part of
the Company's capital stock or assets, or (d) enter into any agreement with any
person providing for the acquisition of all or any significant portion of the
Company (whether by way of merger, purchase of assets, tender offer or
otherwise). In addition to the foregoing, if the Stockholder receives, prior to
the Effective Time or the termination of the Merger Agreement, any offer,
proposal, or request relating to any of the above, the Stockholder shall
immediately notify Parent thereof, including information as to the identity of
the offer or the party making any such offer or proposal and the specific terms
of such offer or proposal, as the case may be, and such other information
related thereto as Parent may reasonably request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
5.1 AUTHORIZATION, ETC. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform its obligations hereunder and thereunder.
This Voting Agreement and the Proxy have been duly executed and delivered by
Stockholder and constitute legal, valid and binding obligations of Stockholder,
enforceable against Stockholder in accordance with their terms, subject to (i)
laws of general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
5.2 NO CONFLICTS OR CONSENTS
(a) The execution and delivery of this Voting Agreement and the
Proxy by Stockholder do not, and the performance of this Voting Agreement and
the Proxy by Stockholder
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will not: (i) conflict with or violate any law, rule, regulation, order, decree
or judgment applicable to Stockholder or by which it or any of its properties is
or may be bound or affected; or (ii) result in or constitute (with or without
notice or lapse of time) any breach of or default under, or give to any other
Person (with or without notice or lapse of time) any right of termination,
amendment, acceleration or cancellation of, or result (with or without notice or
lapse of time) in the creation of any Encumbrance or restriction on any of the
Subject Securities pursuant to, any contract to which Stockholder is a party or
by which Stockholder or any of his affiliates or properties is or may be bound
or affected.
(b) The execution and delivery of this Voting Agreement and the
Proxy by Stockholder do not, and the performance of this Voting Agreement and
the Proxy by Stockholder will not, require any consent or approval of any
Person.
5.3 TITLE TO SECURITIES. As of the date of this Voting Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions
except as specifically disclosed on the signature page hereof) the number of
outstanding shares of Company Common Stock set forth under the heading "Shares
Held of Record" on the signature page hereof; (b) Stockholder holds (free and
clear of any Encumbrances or restrictions except as specifically disclosed on
the signature page hereof) the options, warrants and other rights to acquire
shares of Company Common Stock set forth under the heading "Options, Warrants
and Other Rights" on the signature page hereof; (c) Stockholder Owns the
additional securities of the Company set forth under the heading "Additional
Securities Beneficially Owned" on the signature page hereof; and (d) Stockholder
does not directly or indirectly Own any shares of Company Common Stock or other
securities of the Company, or any option, warrant or other right to acquire (by
purchase, conversion or otherwise) any shares of Company Common Stock or other
securities of the Company, other than the shares and options, warrants and other
rights set forth on the signature page hereof.
SECTION 6. MISCELLANEOUS
6.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Stockholder in
this Voting Agreement shall survive until and terminate on the Expiration Date.
6.2 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid solely by the
party incurring such costs and expenses.
6.3 NOTICES. Any notice or other communication required or permitted to
be delivered to either party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received when delivered (by hand,
by registered mail, by courier or express delivery service or by facsimile, in
each case with confirmation of delivery) to the address or facsimile telephone
number set forth beneath the name of such party below (or to such other address
or facsimile telephone number as such party shall have specified in a written
notice given to the other party):
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IF TO PARENT:
AURORA BIOSCIENCES CORPORATION
11010 Torreyana Road
San Diego, CA 92121
Attn: Chris Krueger, esq.
Facsimile No. (858) 404-5499
WITH A COPY TO (WHICH COPY SHALL NOT CONSTITUTE NOTICE):
Thomas A. Coll, Esq.
Cooley Godward LLP
4365 Executive Drive
Suite 1100
San Diego, CA 92121-2128
Facsimile No. (858) 453-3555
IF TO THE STOCKHOLDER:
at the address set forth below Stockholder's signature on the
signature page hereof
WITH A COPY TO (WHICH COPY SHALL NOT CONSTITUTE NOTICE):
John A. Dickens, Esq.
Godfrey & Kahn, S.C.
780 North Water Street
Milwaukee, WI 53202
Facsimile No. (414) 273-5198
6.4 SEVERABILITY. If any provision of this Voting Agreement or any part
of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement. Each
provision of this Voting Agreement is separable from every other provision of
this Voting Agreement, and each part of each provision of this Voting Agreement
is separable from every other part of such provision.
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6.5 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith or in connection with
the Merger Agreement constitute the entire agreement between the parties with
respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings between the parties with respect thereto. No
addition to or modification of any provision of this Voting Agreement shall be
binding upon either party unless made in writing and signed by both parties.
6.6 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by Stockholder or Parent without the prior written consent
of the non-assigning party, which consent shall not be unreasonably withheld,
and any attempted or purported assignment or delegation of any of such interests
or obligations shall be void. Subject to the preceding sentence, this Voting
Agreement shall be binding upon, and inure to the benefit of, Stockholder and
its heirs, estate, executors, personal representatives, successors and assigns
(as the case may be), and shall be binding upon, and inure to the benefit of,
Parent and its successors and assigns. Without limiting any of the restrictions
set forth in Section 2 or elsewhere in this Voting Agreement, this Voting
Agreement shall be binding upon any Person to whom any Subject Securities are
transferred. Nothing in this Voting Agreement is intended to confer on any
Person (other than Parent and its successors and assigns) any rights or remedies
of any nature.
6.7 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any provision of this Voting Agreement or the
Proxy was, or is, not performed in accordance with its specific terms or was, or
is, otherwise breached. Stockholder agrees that, in the event of any breach or
threatened breach by Stockholder of any covenant or obligation contained in this
Voting Agreement or in the Proxy, Parent shall be entitled (in addition to any
other remedy that may be available to it, including monetary damages) to (a) a
decree or order of specific performance to enforce the observance and
performance of such covenant or obligation, and (b) an injunction restraining
such breach or threatened breach. Stockholder further agrees that neither Parent
nor any other Person shall be required to obtain, furnish or post any bond or
similar instrument in connection with or as a condition to obtaining any remedy
referred to in this Section 6.7, and Stockholder irrevocably waives any right he
may have to require the obtaining, furnishing or posting of any such bond or
similar instrument.
6.8 NON-EXCLUSIVITY. The rights and remedies of Parent under this Voting
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Parent under this Voting Agreement,
and the obligations and liabilities of Stockholder under this Voting Agreement,
are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations. Nothing in this Voting Agreement shall limit any of
Stockholder's obligations, or the rights or remedies of Parent, under any
agreement between Parent and Stockholder; and nothing in any such agreement
shall limit any of Stockholder's obligations, or any of the rights or remedies
of Parent, under this Voting Agreement.
6.9 GOVERNING LAW; VENUE.
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(a) Except as required by mandatory provisions of the Wisconsin
Business Corporation Law, this Voting Agreement and the Proxy shall be construed
in accordance with, and governed in all respects by, the laws of the State of
California (without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this
Voting Agreement or the Proxy or the enforcement of any provision of this Voting
Agreement or the Proxy shall be brought or otherwise commenced in any state or
federal court located in the County of San Diego, State of California.
Stockholder and Parent each:
(i) expressly and irrevocably consents and submits to the
exclusive jurisdiction of each state and federal court located in the County of
San Diego, State of California (and each appellate court located in the State of
California), in connection with any such legal proceeding;
(ii) agrees that service of any process, summons, notice
or document by U.S. mail addressed to him at the address set forth in Section
6.3 shall constitute effective service of such process, summons, notice or
document for purposes of any such legal proceeding;
(iii) agrees that each state and federal court located in
the County of San Diego, State of California, shall be deemed to be a convenient
forum; and
(iv) agrees not to assert (by way of motion, as a defense
or otherwise), in any such legal proceeding commenced in any state or federal
court located in the County of San Diego, State of California, any claim by
either Stockholder or Parent that it is not subject personally to the
jurisdiction of such court, that such legal proceeding has been brought in an
inconvenient forum, that the venue of such proceeding is improper or that this
Voting Agreement or the subject matter of this Voting Agreement may not be
enforced in or by such court.
(c) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE PROXY.
6.10 COUNTERPARTS. This Voting Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
6.11 CAPTIONS. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
6.12 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought against Stockholder, the prevailing party shall be
entitled to recover reasonable attorneys' fees,
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costs and disbursements (in addition to any other relief to which the prevailing
party may be entitled).
6.13 WAIVER. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Parent in exercising any power, right, privilege or remedy under this Voting
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Parent shall not be deemed to have waived any claim
available to Parent arising out of this Voting Agreement, or any power, right,
privilege or remedy of Parent under this Voting Agreement, unless the waiver of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of Parent; and any such
waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
6.14 CONSTRUCTION.
(a) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Voting Agreement and Exhibits to this Voting Agreement.
6.15 STOCKHOLDER CAPACITY. No person executing this Voting Agreement who
is a director or officer of the Company makes any agreement or understanding
herein in his capacity as such director or officer. Without limiting the
generality of the foregoing, Stockholder executes this Voting Agreement solely
in its capacity as Owner of Subject Securities and nothing herein shall limit or
affect any actions taken by Stockholder in its capacity as an officer or
director of the Company in exercising the Company's rights under the Merger
Agreement, provided, that no obligation of Stockholder to the Company as an
officer or director of the Company shall affect, impair or impede Stockholder's
obligations under this Voting Agreement including the obligation to vote the
Subject Securities in accordance with Section 3 hereof.
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IN WITNESS WHEREOF, Parent and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
AURORA BIOSCIENCES CORPORATION
By:
--------------------------------
Name:
------------------------------
STOCKHOLDER
-----------------------------------
Name:
Address:
------------------------
Facsimile:
------------------------
<TABLE>
<S> <C> <C>
Shares Held of Record Options Warrants and Other Rights Additional Securities Beneficially Owned
</TABLE>
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
Subject to the provisions hereof, the undersigned stockholder of PanVERA
CORPORATION, a Wisconsin corporation (the "Company"), hereby irrevocably (to the
fullest extent permitted by law) appoints and constitutes each of Stuart J. M.
Collinson, Christopher Krueger and AURORA BIOSCIENCES CORPORATION, a Delaware
corporation ("Parent"), and each of them, the attorneys and proxies of the
undersigned with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to (i) the outstanding shares of
Company Common Stock or other securities owned of record by the undersigned as
of the date of this proxy, which shares are specified on the final page of this
proxy, and (ii) any and all other shares of Company Common Stock or other
securities which the undersigned may acquire on or after the date hereof. (The
shares of the Company Common Stock or other securities referred to in clauses
"(i)" and "(ii)" of the immediately preceding sentence are collectively referred
to in this proxy as the "Shares.") Upon the execution hereof, all prior proxies
given by the undersigned with respect to any of the Shares are hereby revoked,
and the undersigned agrees that no subsequent proxies will be given with respect
to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, AURORA ACQUISITION
CORP., a Wisconsin Corporation and a wholly owned subsidiary of Parent, the
Company and certain stockholders of the Company (the "Merger Agreement").
Capitalized terms used herein and not otherwise defined shall have the meanings
given to such terms in the Merger Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares or execute a written consent with
respect to the Shares at any time until the earlier to occur of the valid
termination of the Merger Agreement or the Effective Time in favor of the
adoption of the Merger Agreement in substantially the form as it exists on the
date of the execution hereof and in favor of any other matter proposed to be
approved by the holders of the Subject Securities pursuant to the terms of the
Merger Agreement.
The undersigned may vote the Shares on all other matters including the
election of directors.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the
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invalidity or unenforceability of such provision or part thereof under such
circumstances and in such jurisdiction shall not affect the validity or
enforceability of such provision or part thereof under any other circumstances
or in any other jurisdiction, and (c) the invalidity or unenforceability of such
provision or part thereof shall not affect the validity or enforceability of the
remainder of such provision or the validity or enforceability of any other
provision of this proxy. Each provision of this proxy is separable from every
other provision of this proxy, and each part of each provision of this proxy is
separable from every other part of such provision.
This proxy shall terminate upon the earlier of the valid termination of
the Merger Agreement or the Effective Time of the Merger.
Dated: November ___, 2000.
-----------------------------------
Name
Number of shares of common stock of
the Company owned of record or
beneficially as of the date of this
proxy:
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