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EXHIBIT 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of October 15, 2000, by and
between Coulter Pharmaceutical, Inc., a Delaware corporation ("Coulter"), and
_____________________ ("Stockholder").
RECITALS
A. Corixa Corporation, a Delaware corporation ("Corixa"), Clearwater
Acquisitions Corporation, a Delaware corporation and a wholly owned subsidiary
of Corixa ("Merger Sub"), and Coulter, are entering into an Agreement and Plan
of Merger of even date herewith (the "Merger Agreement") which provides (subject
to the conditions set forth therein) for the merger of Merger Sub into Coulter
(the "Merger").
B. In order to induce Coulter to enter into the Merger Agreement, Stockholder 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) All capitalized terms used but not otherwise defined in this
Voting Agreement have the meanings given to them in the Merger Agreement.
(b) "CORIXA COMMON STOCK" shall mean the common stock, $0.001 par
value per share, of Corixa.
(c) "EXPIRATION DATE" shall mean the earlier of (i) the date upon
which the Merger Agreement is validly terminated, or (ii) the date upon which
the Merger becomes effective.
(d) Stockholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934) of such security.
(e) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(f) "SUBJECT SECURITIES" shall mean: (i) all securities of Corixa
(including all shares of Corixa Common Stock and all options, warrants and other
rights to acquire shares of Corixa Common Stock) Owned by Stockholder as of the
date of this Voting Agreement; and (ii) all additional securities of Corixa
(including all additional shares of Corixa Common Stock and all additional
options, warrants and other rights to acquire shares of Corixa Common Stock) of
which Stockholder acquires Ownership during the period from the date of this
Voting Agreement through the Expiration Date.
(g) 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; or (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer
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of or disposition of such security or any interest therein.
SECTION 2. RESTRICTIONS ON TRANSFER OF SUBJECT SECURITIES
2.1 NO TRANSFER OF SUBJECT SECURITIES. Stockholder agrees that, during
the period from the date of this Voting Agreement through the Expiration Date,
Stockholder shall not cause or permit any Transfer of any of the Subject
Securities or any interest therein to be effected, and any such attempted
Transfer shall be null and void; provided, however, that nothing in this Voting
Agreement shall restrict Stockholder's ability to exercise any options to
acquire shares of Corixa Common Stock.
2.2 NO 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
(other than pursuant to this Voting Agreement).
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:
(a) at any meeting of stockholders of Corixa, however called,
Stockholder shall cause all outstanding shares of Corixa Common Stock that are
Owned by Stockholder as of the record date fixed for such meeting to be voted:
(i) in favor of the issuance of the shares of Corixa Common Stock in
the Merger and in favor of each of the other actions contemplated by the Merger
Agreement; and
(ii) against the following actions (other than the Merger and the
other transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving Corixa; (B) any sale, lease or transfer of a material
amount of assets of Corixa (other than in the ordinary course of business); (C)
any reorganization, recapitalization, dissolution or liquidation of any of
Corixa; (D) any removal of or change in a majority of the board of directors of
Corixa; (E) any amendment to Corixa's certificate of incorporation; (F) any
material change in the capitalization of Corixa or Corixa's corporate structure;
and (G) any other action that is inconsistent with the Merger or that is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement or this Voting Agreement;
(b) in the event written consents are solicited or otherwise sought
from stockholders of Corixa with respect to the issuance of the shares of Corixa
Common Stock in the Merger or with respect to any of the other actions
contemplated by the Merger Agreement, Stockholder shall cause to be executed,
with respect to all outstanding shares of Corixa Common Stock that are Owned by
Stockholder as of the record date fixed for the consent to the proposed action,
a written consent or written consents to such proposed action; and
(c) in the event written consents are solicited or otherwise sought
from stockholders of Corixa with respect to any of the matters referred to in
clauses "(A)" through "(G)" of clause "(ii)" of paragraph "(a)" of this Section
3.1, Stockholder shall cause to be executed, with respect to all outstanding
shares of
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Corixa Common Stock that are Owned by Stockholder as of the record date fixed
for the consent to the proposed action, a written consent or written consents
against such proposed action.
3.2 PROXY. Contemporaneously with the execution of this Voting
Agreement: (i) Stockholder shall deliver to Coulter 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 Coulter an
additional proxy (in the form attached hereto as Exhibit A) executed on behalf
of the record owner of any outstanding shares of Corixa Common Stock that are
owned beneficially (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934), but not of record, by Stockholder.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Stockholder hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters' rights and any similar rights relating to the Merger or any related
transaction that Stockholder or any other Person may have by virtue of the
ownership of any outstanding shares of Corixa Common Stock Owned by Stockholder.
SECTION 5. LOCKUP AGREEMENT
For a period of ninety (90) calendar days following the Effective Time,
Stockholder shall not Transfer or in any other way reduce Stockholder's risk of
ownership of or investment in any shares of Corixa Common Stock which
Stockholder currently owns or purchases or otherwise acquires after the
execution of this Voting Agreement, whether pursuant to the Merger or otherwise
(including any securities which may be paid as a dividend or otherwise
distributed thereon or with respect thereto or issued or delivered in exchange
or substitution therefor) (all such securities being referred to herein
collectively as "Restricted Corixa Securities"), or any option, right or other
interest with respect to any Restricted Corixa Securities; provided, however,
that nothing in this Agreement shall restrict Stockholder's ability to exercise
options to acquire shares of Corixa Common Stock (it being understood, however,
that any shares of Corixa Common Stock issued to Stockholder upon exercise of
such options shall become "Restricted Corixa Securities" that are subject to the
prohibitions described in this Section 5). Stockholder also understands and
agrees that stop transfer instructions may be given to Corixa's transfer agent
with respect to certificates evidencing the Restricted Corixa Securities to
enforce Stockholder's compliance with this Section 5. Notwithstanding anything
to the contrary contained in this Voting Agreement, this Section 5 shall have no
force or effect if the Merger Agreement is terminated.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Coulter as follows:
6.1 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 his 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.
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6.2 NO CONFLICTS OR CONSENTS. 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: (i) conflict with or
violate any law, rule, regulation, order, decree or judgment applicable to
Stockholder or by which he or any of his 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. 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.
6.3 TITLE TO SECURITIES. As of the date of this Voting Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Corixa 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) the options, warrants
and other rights to acquire shares of Corixa Common Stock set forth under the
heading "Options and Other Rights" on the signature page hereof; (c) Stockholder
Owns the additional securities of Corixa 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 capital stock or other
securities of Corixa, or any option, warrant or other right to acquire (by
purchase, conversion or otherwise) any shares of capital stock or other
securities of Corixa, other than the shares and options, warrants and other
rights set forth on the signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement, will be accurate in all respects at all times through
the Expiration Date and will be accurate in all respects as of the date of the
consummation of the Merger as if made on that date.
SECTION 7. MISCELLANEOUS
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall execute and deliver, or cause to be executed
and delivered, such additional transfers, assignments, endorsements, proxies,
consents and other instruments, and shall take such further actions, as Coulter
may request for the purpose of carrying out and furthering the intent of this
Voting Agreement.
7.2 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 (a) when delivered by
hand, or (b) two business days after sent by courier or express delivery service
or by facsimile, 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):
if to Stockholder:
at the address set forth below Stockholder's
signature on the signature page hereof
if to Coulter:
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Coulter Pharmaceutical, Inc.
600 Gateway Blvd.
South San Francisco, CA 94080-7014
Attention: President
Facsimile No.: (650) 553-2728
Telephone No.: (650) 553-2000
in each case with a copy to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Attention: James Kitch and Keith Flaum
Facsimile No.: (650) 849-7400
Telephone No.: (650) 843-5000
7.3 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.
7.4 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith 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.
7.5 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 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 Stockholder
and his heirs, estate, executors, personal representatives, successors and
assigns, and shall inure to the benefit of Coulter 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 Coulter and its
successors and assigns) any rights or remedies of any nature.
7.6 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Voting Agreement or
the Proxy was not performed in accordance with its specific terms or was
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, Coulter shall be entitled (in addition to any
other remedy that may be available to it, including
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monetary damages) to seek and obtain (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 Coulter 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 7.6,
and Stockholder irrevocably waives any right he may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
7.7 GOVERNING LAW; WAIVER OF JURY TRIAL. This Voting Agreement and the
Proxy shall be construed in accordance with, and governed in all respects by,
the laws of the State of Delaware (without giving effect to principles of
conflicts of laws). 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.
7.8 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.
7.9 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.
7.10 WAIVER. No failure on the part of Coulter to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Coulter 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. Coulter shall not be deemed to have waived any claim
available to Coulter arising out of this Voting Agreement, or any power, right,
privilege or remedy of Coulter 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 Coulter; and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
7.11 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.
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IN WITNESS WHEREOF, Coulter and Stockholder have caused this Voting Agreement to
be executed as of the date first written above.
COULTER PHARMACEUTICAL, INC.
By:
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Name:
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Title:
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STOCKHOLDER
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(Signature)
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(Print Name)
Address:
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Facsimile:
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<TABLE>
<CAPTION>
Shares Held of Record Options and Other Rights Additional Securities Beneficially Owned
--------------------- ------------------------ ----------------------------------------
<S> <C> <C>
</TABLE>
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder of CORIXA CORPORATION, a Delaware
corporation ("Corixa"), hereby irrevocably (to the fullest extent permitted by
law) appoints and constitutes Michael Bigham, William Harris and Coulter
Pharmaceutical, Inc., a Delaware corporation ("Coulter"), 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
the outstanding shares of capital stock of Corixa owned of record by the
undersigned as of the date of this proxy, which shares are specified on the
final page of this proxy. (The shares of the capital stock of Corixa referred to
in the immediately preceding sentence are collectively referred to 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
Coulter and the undersigned (the "Voting Agreement"), and is granted in
consideration of Coulter entering into the Agreement and Plan of Merger, dated
as of the date hereof, among Coulter, Clearwater Acquisitions Corporation, a
Delaware corporation and a wholly owned subsidiary of Corixa ("Merger Sub"), and
Corixa (the "Merger Agreement").
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement or the effective time of the
merger contemplated thereby (the "Merger") at any meeting of the stockholders of
Corixa, however called, or in connection with any solicitation of written
consents from stockholders of Corixa:
(i) in favor of the issuance of the shares of Corixa Common Stock in
the Merger, and in favor of each of the other actions contemplated by the Merger
Agreement; and
(ii) against the following actions (other than the Merger and the
other transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving Corixa; (B) any sale, lease or transfer of a material
amount of assets of Corixa (other than in the ordinary course of business); (C)
any reorganization, recapitalization, dissolution or liquidation of any of
Corixa; (D) any removal of or change in a majority of the board of directors of
Corixa; (E) any amendment to Corixa's certificate of incorporation; (F) any
material change in the capitalization of Corixa or Corixa's corporate structure;
and (G) any other action that is inconsistent with the Merger or that is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement or the Voting Agreement.
The undersigned may vote the Shares on all other matters.
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 invalidity or
unenforceability of such
<PAGE> 9
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: October 15, 2000.
STOCKHOLDER
-----------------------------------
(Signature)
-----------------------------------
(Print Name)
Shares Held of Record
Common Stock
