EXHIBIT 2
to Schedule 13D
TENDER AND VOTING AGREEMENT
THIS TENDER AND VOTING AGREEMENT (this "Agreement") dated May 29, 2007, is
entered into between Genzyme Corporation, a Massachusetts corporation
("Parent"), Wichita Bio Corporation, a Delaware corporation and direct or
indirect wholly owned subsidiary of Parent ("Sub"), and Perseus-▇▇▇▇▇
BioPharmaceutical Fund, LP ("Shareholder"), with respect to (i) the shares of
common stock, par value $0.001 per share (the "Company Common Stock"), of
Bioenvision, Inc. a Delaware corporation (the "Company"), (ii) the shares of
the Company's Series A Convertible Participating Preferred Stock, $0.001 par
value per share (the "Company Convertible Preferred Stock"), (iii) all
securities exchangeable, exercisable or convertible into Company Common Stock
or Company Convertible Preferred Stock, and (iv) any securities issued or
exchanged with respect to such shares of Company Common Stock or Company
Convertible Preferred Stock, and upon any recapitalization, reclassification,
merger, consolidation, spin-off, partial or complete liquidation, stock
dividend, split-up or combination of the securities of the Company or upon any
other change in the Company's capital structure, in each case whether now owned
or hereafter acquired by the Shareholder (collectively, the "Securities").
W I T N E S S E T H:
WHEREAS, Parent, Sub and the Company have entered into an Agreement and
Plan of Merger dated as of the date hereof (as the same may be amended or
supplemented, other than to lower the price to be paid in the Offer or Merger,
the "Merger Agreement") pursuant to which Sub has agreed to make a cash tender
offer described therein and thereafter merge with and into the Company (the
"Merger") with the result that the Company becomes a wholly owned subsidiary of
Parent;
WHEREAS, as of the date hereof, Shareholder beneficially owns and has the
power to dispose of the Securities set forth on Schedule I hereto and has the
power to vote the shares of Company Common Stock or Company Convertible
Preferred Stock set forth thereon;
WHEREAS, Parent and Sub desire to enter into this Agreement in connection
with their efforts to consummate the acquisition of the Company; and
WHEREAS, capitalized terms used in this Agreement and not defined have the
meaning given to such terms in the Merger Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
III-1
1. CERTAIN COVENANTS.
1.1 LOCK-UP. Subject to Section 1.5, except as contemplated by
the Merger Agreement, Shareholder hereby covenants and agrees that between the
date hereof and the Termination Date, Shareholder will not (a) directly or
indirectly, sell, transfer, assign, pledge, hypothecate, tender, encumber or
otherwise dispose of or limit its right to vote in any manner any of the
Securities, or agree to do any of the foregoing, or (b) take any action which
would have the effect of preventing or disabling Shareholder from performing
its obligations under this Agreement. Notwithstanding the foregoing, in
connection with any transfer not involving or relating to any Acquisition
Proposal (as defined in the Merger Agreement), Shareholder may transfer any or
all of the Securities as follows: (i) in the case of a Shareholder that is an
entity, to any subsidiary, partner or member of Shareholder, and (ii) in the
case of an individual Shareholder, to Shareholder's spouse, ancestors,
descendants or any trust for any of their benefits or to a charitable trust;
PROVIDED, HOWEVER, that in any such case, prior to and as a condition to the
effectiveness of such transfer, (x) each person to which any of such Securities
or any interest in any of such Securities is or may be transferred (a) shall
have executed and delivered to Parent and Sub a counterpart to this Agreement
pursuant to which such person shall be bound by all of the terms and provisions
of this Agreement, and (b) shall have agreed in writing with Parent and Sub to
hold such Securities or interest in such Securities subject to all of the terms
and provisions of this Agreement, and (y) this Agreement shall be the legal,
valid and binding agreement of such person, enforceable against such person in
accordance with its terms.
1.2 NO SOLICITATION. Between the date hereof and the Termination
Date, except as otherwise permitted by Section 5.2 of the Merger Agreement,
neither the Shareholder nor any director, officer, agent, representative,
employee, affiliate or associate (collectively, "Representatives") of
Shareholder shall, directly or indirectly, (a) solicit, initiate or encourage
the submission of any Acquisition Proposal or of any other sale, transfer,
pledge or other disposition or conversion of any of the Securities or of any of
the other debt or equity securities of the Company, or (b) participate in or
knowingly encourage any discussions or negotiations regarding, or furnish to
any person any non-public information with respect to, enter into any agreement
with respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Acquisition Proposal or any other sale, transfer, pledge or other
disposition or conversion of any of the Securities or of any of the other debt
or equity securities of the Company, in any case, from, to or with any person
other than Parent or Sub. Shareholder will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any such
other parties conducted heretofore with respect to any of the foregoing.
Shareholder will notify Parent immediately if any party contacts the
Shareholder following the date hereof (other than Parent and Sub) concerning
any Acquisition Proposal or any other sale, transfer, pledge or other
disposition or conversion of any of the Securities or of any of the other debt
or equity securities of the Company.
1.3 CERTAIN EVENTS. This Agreement and the obligations hereunder
will attach to the Securities and will be binding upon any person to which
legal or beneficial ownership of any or all of the Securities passes, whether
by operation of Law or otherwise, including without limitation, the
Stockholder's successors or assigns. This Agreement and the obligations
hereunder will also attach to any additional shares of Company Common Stock or
III-2
other Securities of the Company issued to or acquired by the Stockholder.
1.4 GRANT OF PROXY; VOTING AGREEMENT.
(a) The Shareholder has revoked or terminated any proxies,
voting agreements or similar arrangements previously given or entered into
with respect to the Securities and hereby irrevocably appoints Parent as
proxy for Shareholder to vote the Securities for Shareholder and in
Shareholder's name, place and stead, at any annual, special or other
meeting or action of the shareholders of the Company, as applicable, or at
any adjournment thereof or pursuant to any consent of the shareholders of
the Company, in lieu of a meeting or otherwise, whether before or after
the closing of the Offer (as defined in the Merger Agreement), for the
adoption and approval of the Merger Agreement and the Merger. The parties
acknowledge and agree that neither Parent, nor Parent's successors,
assigns, subsidiaries, divisions, employees, officers, directors,
shareholders, agents and affiliates shall owe any duty to, whether in law
or otherwise, or incur any liability of any kind whatsoever, including
without limitation, with respect to any and all claims, losses, demands,
causes of action, costs, expenses (including reasonable attorney's fees)
and compensation of any kind or nature whatsoever to the Shareholder in
connection with or as a result of any voting by Parent of the Securities
subject to the irrevocable proxy hereby granted to Parent at any annual,
special or other meeting or action or the execution of any consent of the
shareholders of the Company. The parties acknowledge that, pursuant to the
authority hereby granted under the irrevocable proxy, Parent may vote the
Securities in furtherance of its own interests, and Parent is not acting
as a fiduciary for the Shareholder.
(b) Notwithstanding the foregoing grant to Parent of the
irrevocable proxy, if Parent elects not to exercise its rights to vote the
Securities pursuant to the irrevocable proxy, Shareholder agrees to vote
the Securities during the term of this Agreement in favor of or give its
consent to, as applicable, a proposal to adopt and approve the Merger
Agreement and the Merger as described in Section 1.4(a) at any annual,
special or other meeting or action of the shareholders of the Company, in
lieu of a meeting or otherwise.
(c) This irrevocable proxy shall not be terminated by any
act of the Shareholder or by operation of law, whether by the death or
incapacity of the Shareholder or by the occurrence of any other event or
events (including, without limiting the foregoing, the termination of any
trust or estate for which Shareholder is acting as a fiduciary or
fiduciaries or the dissolution or liquidation of any corporation or
partnership). If between the execution hereof and the Termination Date,
Shareholder should die or become incapacitated, or if any trust or estate
holding the Securities should be terminated, or if any corporation or
partnership holding the Securities should be dissolved or liquidated, or
if any other such similar event or events shall occur before the
Termination Date, certificates representing the Securities shall be
delivered by or on behalf of Shareholder in accordance with the terms and
conditions of the Merger Agreement and this Agreement, and actions taken
by the Parent hereunder shall be as valid as if such death, incapacity,
termination, dissolution, liquidation or other similar event or events had
III-3
not occurred, regardless of whether or not the Parent has received notice
of such death, incapacity, termination, dissolution, liquidation or other
event.
1.5 TENDER OF SECURITIES. Shareholder agrees, in exchange for the
consideration described in the Merger Agreement, to tender the Securities to
Sub in the Offer as soon as practicable following the commencement of the
Offer, and in any event not later than five (5) business days following the
commencement of the Offer, and Shareholder shall not withdraw any Securities so
tendered unless the Offer is terminated.
1.6 PUBLIC ANNOUNCEMENT. Shareholder shall consult with Parent
before issuing any press releases or otherwise making any public statements
with respect to the transactions contemplated herein and shall not issue any
such press release or make any such public statement without the approval of
Parent, except as may be required by Law, including any filings with the
Securities and Exchange Commission (the "SEC") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). This Section 1.6 shall
terminate and be null and void upon the earlier of (i) the Termination Date and
(ii) consummation of the Merger.
1.7 DISCLOSURE. Shareholder hereby authorizes Parent and Sub to
publish and disclose in any announcement or disclosure required by the SEC,
Nasdaq or the American Stock Exchange or any other national securities exchange
and in the Offer Documents and, if necessary, the Proxy Statement (each as
defined in the Merger Agreement), (including all documents and schedules filed
with the SEC in connection with either of the foregoing), its identity and
ownership of the Securities and the nature of its commitments, arrangements and
understandings under this Agreement. Parent and Sub hereby authorize
Shareholder to make such disclosure or filings as may be required by the SEC or
the NASDAQ or any other national securities exchange. Notwithstanding the
foregoing, Parent and Sub will not publish or disclose in any press release the
identity of Shareholder without the prior consent of Shareholder, such consent
not to be unreasonably withheld.
1.8 MATTERS PERTAINING TO COMPANY CONVERTIBLE PREFERRED STOCK.
Reference is hereby made to that certain Certificate of Designations,
Preferences and Rights of the Series A Convertible Preferred Stock to the
Company's certificate of incorporation filed with the Secretary of State of the
State of Delaware on or about May 7, 2002 (as originally adopted and as the
same may have been or may be amended, modified, supplemented or restated from
time to time in accordance with its terms, the "Certificate of Designations").
With respect to any shares of Company Convertible Preferred Stock held
(beneficially or of record) by the Shareholder, the Shareholder hereby
irrevocably acknowledges and agrees with the following solely in connection
with the Offer, the Merger and the other transactions contemplated by the
Merger Agreement: (i) the Offering constitutes a Deemed Liquidation (as defined
in Section 5(c) of the Certificate of Designations) and such Shareholder
irrevocably waives the right to receive any amounts under Section 5(a) of the
Certificate of Designations; (ii) such Shareholder waives such Shareholder's
"opt out" right set forth in the second sentence of Section 5(c) of the
Certificate of Designations; (iii) such Shareholder elects to receive the
amounts payable with respect to such Shareholder's shares of Company
Convertible Preferred Stock under the Merger Agreement (and not the amounts
described in clause (i) of the third sentence of Section 5(c) of the
Certificate of Designations); (iv) such Shareholder waives the right to any
notice under Section 5(d) of the Certificate of Designations; (v) such
III-4
Shareholder waives the rights provided to such Shareholder under Section 6 of
the Certificate of Designations; and (vi) such Shareholder consents to the
Offer, the Merger and the other transactions contemplated by the Merger
Agreement for all purposes under Section 9 of the Certificate of Designations.
The foregoing consents and waivers shall be irrevocable at all times prior to
the Termination Date.
2. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Shareholder hereby
represents and warrants to Parent and Sub, as of the date hereof and as of the
date Sub purchases shares of Company Capital Stock pursuant to the Offer, that:
2.1 OWNERSHIP. Shareholder has good and marketable title to, and
is the sole legal and beneficial owner of the Securities, in each case free and
clear of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character whatsoever, other than
those arising under the securities laws or under the Company's governance
documents or under any Registration Rights Agreement between the Company and
Shareholder (collectively, "Liens"). At the time Sub purchases shares of
Company Capital Stock pursuant to the Offer, Shareholder will transfer and
convey to Parent or its designee good and marketable title to the shares of
Company Capital Stock included in the Securities, free and clear of all Liens
created by or arising through Shareholder.
2.2 AUTHORIZATION. Shareholder has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and has sole voting power and sole power of
disposition, with respect to the Securities with no restrictions on its voting
rights or rights of disposition pertaining thereto. Shareholder has duly
executed and delivered this Agreement and this Agreement is a legal, valid and
binding agreement of Shareholder, enforceable against Shareholder in accordance
with its terms. If the Shareholder is married and the Securities constitute
community property, this Agreement has been duly authorized, executed and
delivered by the Shareholder's spouse, and this Agreement is a legal, valid and
binding agreement of the Shareholder's spouse, enforceable against the
Shareholder's spouse in accordance with its terms.
2.3 NO VIOLATION. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (a)
require the Shareholder to file or register with, or obtain any permit,
authorization, consent or approval of, any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or
domestic, or any other entity other than filings with the SEC pursuant to the
Exchange Act, or (b) violate, or cause a breach of or default under, or
conflict with any contract, agreement or understanding, any Law binding upon
the Shareholder, except for such violations, breaches, defaults or conflicts
which are not, individually or in the aggregate, reasonably likely to have an
adverse effect on the Shareholder's ability to satisfy its obligations under
this Agreement. No proceedings are pending which, if adversely determined, will
have an adverse effect on any ability to vote or dispose of any of the
Securities. The Shareholder has not previously assigned or sold any of the
Securities to any third party.
2.4 SHAREHOLDER HAS ADEQUATE INFORMATION. Shareholder is a
sophisticated seller with respect to the Securities and has adequate
information concerning the business and financial condition of the Company to
make an informed decision regarding the sale of the Securities and has
III-5
independently and without reliance upon either Sub or Parent and based on such
information as Shareholder has deemed appropriate, made its own analysis and
decision to enter into this Agreement. Shareholder acknowledges that neither
Sub nor Parent has made and neither makes any representation or warranty,
whether express or implied, of any kind or character except as expressly set
forth in this Agreement. Shareholder acknowledges that the agreements contained
herein with respect to the Securities by Shareholder are irrevocable (prior to
the Termination Date), and that Shareholder shall have no recourse to the
Securities, Parent or Sub, except with respect to breaches of representations,
warranties, covenants and agreements expressly set forth in this Agreement.
2.5 NO SETOFF. The Shareholder has no liability or obligation
related to or in connection with the Securities other than the obligations to
Parent and Sub as set forth in this Agreement. There are no legal or equitable
defenses or counterclaims that have been or may be asserted by or on behalf of
the Company or the Shareholder to reduce the amount of the Securities or affect
the validity or enforceability of the Securities.
2.6 NO AMOUNTS PAYABLE TO SHAREHOLDER. Except as disclosed in the
Merger Agreement, there are no amounts due or payable by the Company or any
Company Subsidiary to the Shareholder or any of its affiliates or associates in
connection with the transactions contemplated by the Merger Agreement or this
Agreement or otherwise (other than any payments required under the Merger
Agreement solely in exchange for equity securities of the Company).
3. REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB. Parent and Sub
hereby represent and warrant to Shareholder, as of the date hereof that:
3.1 AUTHORIZATION. Parent and Sub have all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. Parent and Sub have duly executed and
delivered this Agreement and this Agreement is a legal, valid and binding
agreement of each of Parent and Sub, enforceable against each of Parent and Sub
in accordance with its terms.
3.2 NO VIOLATION. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
violate, or cause a breach of or default under, any contract or agreement, any
statute or law, or any judgment, decree, order, regulation or rule of any
governmental agency, authority, administrative or regulatory body, court or
other tribunal, foreign or domestic, or any other entity or any arbitration
award binding upon Parent or Sub, except for such violations, breaches or
defaults which are not reasonably likely to have a material adverse effect on
either Parent's or Sub's ability to satisfy its obligations under this
Agreement.
4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
representations and warranties of Shareholder, Parent and Sub contained herein
shall not be deemed waived or otherwise affected by any investigation made by
the other party hereto. The representations and warranties contained herein
shall survive the closing of the transactions contemplated hereby until the
expiration of the applicable statute of limitations, including extensions
thereof.
III-6
5. SPECIFIC PERFORMANCE. Shareholder acknowledges that Sub and 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 Shareholder which are
contained in this Agreement. It is accordingly agreed that, in addition to any
other remedies which may be available to Sub and Parent upon the breach by
Shareholder of such covenants and agreements, Sub and Parent shall have the
right to obtain injunctive relief to restrain any breach or threatened breach
of such covenants or agreements or otherwise to obtain specific performance of
any of such covenants or agreements.
6. MISCELLANEOUS.
6.1 TERM. This Agreement and all obligations hereunder shall
terminate upon the earlier of (i) the day after the Merger is consummated, (ii)
December 31, 2007, (iii) the date of any modification, waiver or amendment to
the Merger Agreement in a manner that reduces the amount and form of
consideration payable thereunder to the Shareholder, and (iv) the termination
of the Merger Agreement pursuant to Section 8.1 thereof (the earliest of (i),
(ii), (iii) and (iv), the "Termination Date").
6.2 FIDUCIARY DUTIES. Notwithstanding anything in this Agreement
to the contrary: (a) the Shareholder makes no agreement or understanding herein
in any capacity other than in the Shareholder's capacity as a record holder and
beneficial owner of Securities, and (b) nothing herein will be construed to
limit or affect any action or inaction by the Shareholder or any Representative
of the Shareholder, as applicable, serving on the Company Board of Directors or
on the board of directors of any Company Subsidiary or as an officer or
fiduciary of the Company or any of Company Subsidiary, acting in such person's
capacity as a director, officer or fiduciary of the Company or any Company
Subsidiary.
6.3 EXPENSES. Each of the parties hereto shall pay its own
expenses incurred in connection with this Agreement. Each of the parties hereto
warrants and covenants to the others that it will bear all claims for brokerage
fees attributable to action taken by it.
6.4 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective representatives and permitted successors and assigns.
6.5 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
6.6 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.7 ASSIGNMENT. Without limitation to Section 1.1, this Agreement
shall be binding upon and inure to the benefit of the parties named herein and
their respective successors and permitted assigns. No party may assign either
this Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other parties; PROVIDED, HOWEVER,
that each of Parent and Sub may freely assign its rights to another direct or
III-7
indirect wholly owned subsidiary of Parent or Sub without such prior written
approval but no such assignment shall relieve Parent or Sub of any of its
obligations hereunder. Any purported assignment requiring consent without such
consent shall be void.
6.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
6.9 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be deemed given when
delivered in person, by overnight courier, by facsimile transmission (with
receipt confirmed by telephone or by automatic transmission report) or by
electronic mail, or two business days after being sent by registered or
certified mail (postage prepaid, return receipt requested), as follows:
(a) If to Parent Genzyme Corporation
or Sub: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Facsimile: (▇▇▇)-▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
with a copy to: Ropes & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
(b) If to Shareholder, to the addresses indicated on Schedule I hereto.
Any party may by notice given in accordance with this Section 6.9 to the other
parties to designate updated information for notices hereunder.
6.10 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 its principles of conflicts of laws.
6.11 ENFORCEABILITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect. Upon a determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible and, absent agreement among the parties, a court is authorized to so
modify this Agreement.
III-8
6.12 FURTHER ASSURANCES. From time to time, at Parent's request
and without further consideration, Shareholder shall execute and deliver to
Parent such documents and take such action as Parent may reasonably request in
order to consummate more effectively the transactions contemplated hereby and
to vest in Parent good, valid and marketable title to the Securities,
including, but not limited to, using its best efforts to cause the appropriate
transfer agent or registrar to transfer of record the Securities.
6.13 REMEDIES NOT EXCLUSIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law
or in equity will be cumulative and not alternative, and the exercise of any
thereof by either party will not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
6.14 DIVIDEND RIGHTS. For the avoidance of doubt, until the
Acceptance Date, the Shareholder shall retain all rights to any dividends
payable on the Company Convertible Preferred Stock.
6.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[THE REST OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK]
III-9
IN WITNESS WHEREOF, Parent, Sub and Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
GENZYME CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President,
Chief Legal Officer & Secretary
WICHITA BIO CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President & Secretary
SHAREHOLDER:
PERSEUS-▇▇▇▇▇ BIOPHARMACEUTICAL FUND, LP
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
III-10
SCHEDULE I TO
THE TENDER AND VOTING AGREEMENT
1. Securities held by Shareholder:
WARRANTS TO SHARES OF SERIES A
OPTIONS TO PURCHASE CONVERTIBLE
PURCHASE COMMON PARTICIPATING
SHAREHOLDER SHARES OF COMMON STOCK STOCK STOCK PREFERRED STOCK
Perseus-▇▇▇▇▇
BioPharmaceutical
Fund, L.P. 3,375,044 0 75,009 2,250,000
2. Address to which notices or other communications are to be sent in
accordance with Section 6.9 of this Agreement:
Shareholder: Perseus-▇▇▇▇▇ BioPharmaceutical Fund, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. Finger, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
and with a copy to: ▇▇▇▇▇▇▇ Procter LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
III-11