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VOTING AND STOCK OPTION AGREEMENT
VOTING AND STOCK OPTION AGREEMENT (this "Agreement"), dated as of
May 10, 2001, by and between Merck & Co., Inc., a New Jersey corporation
("Parent"), Rosetta Inpharmatics, Inc., a Delaware corporation (the
"Company"), and the Stockholder listed on Schedule A hereto (the
"Stockholder").
RECITALS
A. Parent, Coho Acquisition Corp., ("Merger Sub"), a Delaware Corporation
and wholly-owned Subsidiary of Parent, and the Company, are entering into an
Agreement and Plan Merger of even date herewith (the "Merger Agreement")
providing for a business combination between Parent and the Company.
B. As of the date of this Agreement, the Stockholder owns beneficially and
of record the Common Stock of the Company ("Company Common Stock") set forth
opposite its name on Schedule A (the Company Common Stock and Stock Options (as
defined below) owned by the Stockholder are referred to herein as such
Stockholder's "Owned Stock"). Schedule A also sets forth the number of options
and/or warrants (the "Stock Options") to purchase Company Common Stock held by
the Stockholder.
C. Subject to the terms and conditions of the Merger Agreement, the
Stockholder will receive shares ("Parent Shares") of the Parent's common stock,
par value $0.01 per share ("Parent Common Stock") in exchange for the Shares (as
defined in Section 1) held by it at the Effective Time.
D. As an inducement and a condition to Parent's willingness to enter into
the Merger Agreement, Parent, the Company and the Stockholder are entering into
this Agreement.
E. Capitalized terms not defined herein shall have the meanings set forth
in the Merger Agreement.
F. This Agreement and the Merger Agreement are being entered into
simultaneously.
NOW, THEREFORE, in consideration of the execution and delivery by Parent
of the Merger Agreement and the mutual covenants, conditions and agreements
contained herein and therein, and intending to be legally bound hereby, the
parties agree as follows:
1. Voting Agreement. The Stockholder agrees that, during the time
this Agreement is in effect, at any meeting of the stockholders of the Company
(a "Company Stockholders' Meeting"), however called, and at every adjournment or
postponement thereof, he, she or it shall (i) appear at the meeting or otherwise
cause his, her or its Owned Stock, together with any Company Common Stock
acquired by the Stockholder after the date of this Agreement whether upon the
exercise of Stock Options or otherwise (the Stockholder's acquired shares,
together with the Stockholder's Owned Stock, are referred to herein as the
Stockholder's "Shares"), to be counted as present thereat for purposes of
establishing a quorum, (ii) vote, or execute consents in respect of, his, her or
its Shares, or cause his, her or its Shares to be voted, or
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consents to be executed in respect thereof, in favor of the approval and
adoption of the Merger Agreement (including any revised or amended Merger
Agreement which is more favorable to the Stockholder from a financial point of
view), and any action required in furtherance thereof and (iii) vote, or execute
consents in respect of, his, her or its Shares, or cause his, her or its Shares
to be voted, or consents to be executed in respect thereof, against (A) any
agreement or transaction relating to any Takeover Proposal or transaction or
occurrence that if proposed and offered to the Company or its stockholders (or
any of them) would constitute a Takeover Proposal (collectively, "Alternative
Transactions") or (B) any amendment of the Company's Certificate of
Incorporation or By-laws or other proposal, action or transaction involving the
Company or any of its Subsidiaries or any of its stockholders, which amendment
or other proposal, action or transaction could reasonably be expected to prevent
or materially impede or delay the consummation of the Merger or the other
transactions contemplated by the Merger Agreement or the consummation of the
transactions contemplated by this Agreement, or change in any manner the voting
rights of the Company Common Stock (collectively, "Frustrating Transactions")
presented to the Stockholders of the Company (regardless of any recommendation
of the Board of Directors of the Company) or in respect of which vote or consent
of the Stockholder is requested or sought. Notwithstanding any provision in this
Agreement to the contrary, in no event will the Stockholder be required to
exercise any options, warrants or other common equivalents held by the
Stockholder in order to satisfy any obligation under this Agreement.
2. Irrevocable Proxy. As security for the Stockholder's obligations
under Section 1, the Stockholder hereby irrevocably constitutes and appoints
Parent as his, her or its attorney and proxy in accordance with Delaware General
Corporation Law, with full power of substitution and resubstitution, to cause
the Stockholder's shares to be counted as present at any Company Stockholders
Meetings to vote his, her or its Shares at any Company Stockholders' Meeting,
however called, and execute consents in respect of his, her or its shares as and
to the extent provided in Section 1. THIS PROXY AND POWER OF ATTORNEY IS
IRREVOCABLE AND COUPLED WITH AN INTEREST. The Stockholder hereby revokes all
other proxies and powers of attorney with respect to his, her or its Shares that
he, she or it may have heretofore appointed or granted, and no subsequent proxy
or power of attorney shall be granted, in each case to the extent such prior or
subsequent proxies or powers of attorney would prevent the Stockholder from
complying with such Stockholder's obligations under this Agreement.
3. Option.
(a) Subject to the terms and conditions set forth in this Agreement,
the Stockholder hereby grants to Parent an irrevocable option (the "Option") to
purchase (i) the number of Shares set forth next to the Stockholder's name on
Schedule A hereto (as adjusted as set forth herein) and any other Shares owned
by the Stockholder beneficially or acquired after the date of this Agreement, at
a per share purchase price equal to $18.00 (the "Purchase Price").
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(b) The Option may be exercised by Parent, in whole (but not in
part), if after the date hereof the Merger Agreement shall be terminated
pursuant to:
(i) Section 8.1(e) or Section 8.1(g) of the Merger
Agreement; or
(ii) Section 8.1(b) or Section 8.1(f) of the Merger Agreement,
and prior to such termination any Person shall have made a Takeover
Proposal or Superior Proposal to the Company or its stockholders or
publicly announces any Takeover Proposal or Superior Proposal
relating to the Company or any of its Subsidiaries and at the time
of such termination such Takeover Proposal or Superior Proposal had
not been withdrawn and within 60 days after any such termination any
Acquisition Transaction involving the Company or any of its
Subsidiaries shall have been consummated or any Acquisition
Agreement with respect to an Acquisition Transaction involving the
Company or any of its Subsidiaries shall have been entered into. For
purposes of this Agreement, each reference to "25%" in the
definition of the term "Acquisition Transaction" shall be deemed to
be a reference to "51%."
(c) In the event that Parent wishes to exercise the Option, it shall
send to the Stockholder a written notice (the date of each such notice being
herein referred to as a "Notice Date") setting forth its irrevocable election to
that effect, which notice also specifies a date not earlier than three business
days nor later than 30 business days from the Notice Date for the closing of
such purchase (an "Option Closing Date"); provided, however, that (i) if the
closing of a purchase and sale pursuant to the Option (an "Option Closing")
cannot be consummated by reason of any applicable judgment, decree, order, law
or regulation, the period of time that otherwise would run pursuant to this
sentence shall run instead from the date on which the restriction on
consummation has expired or been terminated and (ii) without limiting the
foregoing, if prior notification to or approval of any regulatory authority is
required in connection with the purchase, Parent and the Stockholder shall
promptly file the required notice or application for approval and shall
cooperate in the expeditious filing of such notice or application, and the
period of time that otherwise would run pursuant to this sentence shall run
instead from the date on which, as the case may be, (A) any required
notification period has expired or been terminated or (B) any required approval
has been obtained, and in either event, any requisite waiting period has expired
or been terminated. Each of Parent and the Stockholder agrees to use
commercially reasonable efforts to cooperate with and provide information to the
other, for the purpose of any required notice or application for approval. Any
exercise of the Option shall be deemed to occur on the Notice Date relating
thereto. The place of any Option Closing shall be at the offices of Parent,
which address is set forth in the Merger Agreement, and the time of the Option
Closing shall be 10:00 a.m. (Eastern Time) on the applicable Option Closing
Date.
(d) At any Option Closing, Parent shall pay to the Stockholder in
immediately available funds by wire transfer to a bank account designated in
writing by the Stockholder an amount equal to the Purchase Price multiplied by
the number of Shares being delivered by the
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Stockholder; provided, that failure or refusal of the Stockholder to designate a
bank account shall not preclude Parent from exercising the Option, in whole or
in part.
(e) At any Option Closing, simultaneously with the delivery of
immediately available funds as provided above, the Stockholder shall deliver to
Parent a certificate or certificates representing its Shares to be purchased at
such Option Closing, which Shares shall be free and clear of all liens, claims,
charges and encumbrances of any kind whatsoever.
(f) In the event of any change in the Company Common Stock by reason
of a stock dividend, split-up, merger, recapitalization, combination, exchange
of shares or similar transaction, the type and number of Shares subject to the
Option, and the Purchase Price therefor, shall be adjusted appropriately, so
that Parent shall receive upon exercise of the Option the number and class of
shares or other securities or property that Parent would have received in
respect of the Option Shares if the Option had been exercised immediately prior
to such event or the record date therefor, as applicable.
4. Termination. The Option and the remainder of this Agreement other
than Sections 1 and 2 shall terminate upon the earliest of:
(i) the Effective Time of the Merger;
(ii) the termination of the Merger Agreement for reasons other
than those described in clause (iii) below; and
(iii) (x) thirty (30) days following the termination of the
Merger Agreement pursuant to Section 8.1(e) or Section 8.1(g)
thereof or (y) thirty (30) days following the date on which the
Option shall become exercisable pursuant to Section 3(b)(ii) of this
Agreement.
Sections 1 and 2 of this Agreement shall terminate upon the
earlier of (i) the Effective Time of the Merger and (ii) termination of the
Merger Agreement pursuant to Article VIII thereof. Notwithstanding the
foregoing, if the Option cannot be exercised by reason of any applicable
judgment, decree, order, law or regulation, the Option shall remain exercisable
and shall not terminate until the earlier of (x) the date on which such
impediment shall become final and not subject to appeal, and (y) 5:00 p.m.
Pacific Time, on the tenth (10th) business day after such impediment shall have
been removed. Notwithstanding the termination of the Option or this Agreement,
Parent shall be entitled to purchase the Shares if it has exercised the Option
in accordance with the terms hereof prior to such termination and such
termination shall not affect any rights hereunder which by their terms do not
terminate or expire prior to or as of such termination.
5. Representations and Warranties of Parent. Parent represents and
warrants to the Stockholder as follows:
Organization; Due Authorization; Enforceability. Parent is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New Jersey.
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Parent has full corporate power and authority to execute and deliver this
Agreement. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of Parent, and no other corporate proceedings on the part
of Parent are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Parent and constitutes a valid and binding agreement
of Parent, enforceable against Parent in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights and to general principles of equity.
6. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Parent as follows:
(a) Organization; Due Authorization; Enforceability. If the
Stockholder is a corporation or other entity, the Stockholder is duly organized
and validly existing under the laws of the jurisdiction of its organization. The
Stockholder has full power and authority to execute and deliver this Agreement.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action on the part of the Stockholder, and no other proceedings on the
part of the Stockholder are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by the Stockholder and constitutes a valid
and binding agreement of the Stockholder, enforceable against such Stockholder
in accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights and to general
principles of equity.
(b) Ownership of Shares of Company Common Stock; Voting Rights. The
Stockholder owns, of record and beneficially, the Shares set forth opposite the
Stockholder's name on Schedule A. The Stockholder has sole voting power with
respect to his, her or its Shares. Except pursuant to this Agreement or as set
forth on Schedule A, the Stockholder's Shares are not subject to any voting
trust agreement or other contract, agreement, arrangement, commitment or
understanding to which the Stockholder is a party restricting or otherwise
relating to the voting, dividend rights or disposition of such Shares. The
Company Common Stock are the only equity securities of the Company owned by the
Stockholder. The Stockholder does not have any option or other right to acquire
any equity securities of the Company other than the Stock Options.
(c) No Encumbrances. Upon the exercise of the Option and the
delivery to Parent by Stockholder of a certificate or certificates evidencing
the Shares, Parent will receive good, valid and marketable title to the Shares,
free and clear of all security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on Parent's voting rights,
charges and other encumbrances of any nature whatsoever (except any security
interest created by Parent).
(d) No Conflicts. No authorization, consent or approval of, or
filing with, any court or any public body or authority is necessary for the
consummation by such Stockholder
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of the transactions contemplated by this Agreement. The execution, delivery and
performance of this Agreement by such Stockholder will not constitute a breach,
violation or default (or any event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien or encumbrance upon
any of the properties or assets of such Stockholder under, any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or other
instrument to which such Stockholder is a party or by which his, her or its
properties or assets are bound, other than breaches, violations, defaults,
terminations, accelerations or creation of liens and encumbrances which, in the
aggregate, would not materially impair the ability of such Stockholder to
perform his, her or its obligations hereunder.
(e) Brokers. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Stockholder.
7. Representations and Warranties of the Company. The Company
represents and warrants to Parent as follows:
(a) Organization; Due Authorization; Enforceability. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Company has full corporate power and
authority to execute and deliver this Agreement. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the Board of Directors of the Company, and
no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by the Company
and constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights and to general principles of equity.
(b) No Conflicts. No authorization, consent or approval of, or
filing with, any court or any public body or authority is necessary for the
consummation by the Company of the transactions contemplated by this Agreement.
The execution, delivery and performance of this Agreement by the Company will
not constitute a breach, violation or default (or any event which, with notice
or lapse of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in a right
of termination or acceleration under, or result in the creation of any lien or
encumbrance upon any of the properties or assets of the Company under, any note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or other
instrument to which the Company is a party or by which its properties or assets
are bound, other than breaches, violations, defaults, terminations,
accelerations or creation of liens and encumbrances which, in the aggregate,
would not materially impair the ability of the Company to perform its
obligations hereunder.
(c) State Takeover Statutes. The Board of Directors of the Company
has approved the Merger and this Agreement and such approval is sufficient to
render inapplicable to the Merger, this Agreement and the transactions
contemplated by this Agreement, the provisions
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of the Delaware General Corporation Law Section 203 or Chapter 23 B.19 of the
Washington Business Corporation Act, to the extent, if any, such sections are
applicable to the transactions contemplated by this Agreement. To the Company's
knowledge, no other state takeover statute or similar statute or regulation
applies to the transactions contemplated hereby.
(d) Brokers. Except as set forth in the Merger Agreement, no broker,
finder or investment banker is entitled to any brokerage, finder's or other fee
or commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of the Company.
(e) No Interference. The Company represents, warrants, covenants and
agrees not to (i) take, or omit to take, any action intentionally designed to
(A) interfere with, delay or otherwise impair the implementation or exercise of
Parent's rights under this Agreement, including Parent's exercise of the Option
and Parent's ownership of the Shares upon such exercise, or (B) have the effect
of increasing Parent's costs in exercising its rights under this Agreement or
(ii) adopt a "poison pill," stockholder rights plan or other similar document
unless all purchases of shares of Company Common Stock by Parent are exempted
from the provisions of such "poison pill," stockholder rights plan or other
similar document.
8. Stockholder Covenants. The Stockholder hereby severally covenants
and agrees as follows:
(a) The Stockholder hereby agrees, while this Agreement is in
effect, and except as contemplated hereby, (i) not to sell, transfer, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale, transfer, pledge,
encumbrance, assignment or other disposition of (all of the foregoing, "Sell",
"Sold" or "Sale", as the case may be), any of the Owned Stock or Shares,
provided, however, that such Stockholder may transfer, pledge, encumber, assign
or otherwise dispose the Owned Shares or Shares as a gift, in which case, as a
condition of the gift, the Stockholder must require the person to which any such
Owned Stock or Shares are to be transferred, pledged, encumbered, assigned or
otherwise disposed of to agree in writing, pursuant to an agreement reasonably
satisfactory to Parent to which Parent is an express third-party beneficiary,
that with respect to such Owned Stock or Shares such person shall be subject to
the restrictions and obligations hereunder as if such person was a Stockholder
hereunder, (ii) not to grant any proxies, powers of attorney or other
authorization or consent, deposit any shares of capital stock of the Company
into a voting trust or enter into a voting agreement with respect to any such
Shares and (iii) not to take any action that would make any representation or
warranty of such Stockholder contained in this Agreement untrue or incorrect or
have the effect of preventing or disabling such Stockholder from performing his,
her or its obligations under this Agreement.
(b) The Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of new shares of capital stock
of the Company acquired by such Stockholder, if any, after the date of this
Agreement.
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(c) The Stockholder shall immediately cease any discussions or
negotiations with any parties other than Parent that may be ongoing with respect
to a Takeover Proposal. While this Agreement is in effect, the Stockholder shall
not, directly or indirectly, (i) solicit, initiate or encourage, or take any
other action to facilitate, any inquiries or the making of any Acquisition
Transaction or Frustrating Transaction, (ii) execute or enter into any
Acquisition Agreement with respect to any Alternative Transaction or Frustrating
Transaction, or (iii) enter into, engage in, continue or otherwise participate
in any discussions or negotiations regarding, or provide any information or data
to any person or otherwise cooperate in any way with, any Acquisition
Transaction or Frustrating Transaction, except to the extent such discussions or
negotiations are participated in by the Stockholder in his or her capacity as a
director of the Company in accordance with the terms of the Merger Agreement.
(d) The Stockholder agrees not to engage in any action or omit to
take any action which would have the effect of preventing or disabling
Stockholder from delivering its Shares to Parent or otherwise performing its
obligations under this Agreement.
9. Miscellaneous.
(a) Fees and Expenses. Except as otherwise provided in the Merger
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be borne by the party incurring such
expenses.
(b) Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO ITS CONFLICT OF LAWS RULES OR PRINCIPLES.
(d) Notices. All notices or other communications under this
Agreement shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by cable, telegram, telex
or other standard form of telecommunications, or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
If to a Stockholder:
to the address set
forth beneath the name
of such Stockholder on
Schedule A
If to Parent:
To the address set forth in the Merger Agreement.
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With a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
To the address set forth in the Merger Agreement.
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section.
(e) Assignment; Binding Effect; No Third Party Beneficiaries.
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party. Subject to the
preceding sentence, this Agreement (including, without limitation, the
obligations of the Stockholder under Sections 1 and 2 hereof) shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. Notwithstanding anything contained in this Agreement to
the contrary, nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations or liabilities under or
by reason of this Agreement. Notwithstanding the foregoing, Parent may assign
this agreement to one or more of its affiliates.
(f) ENFORCEMENT. THE PARTIES HERETO AGREE THAT IRREPARABLE DAMAGE
WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT
PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED. IT
IS ACCORDINGLY AGREED THAT, SUBJECT TO THE NEXT SENTENCE, THE PARTIES SHALL BE
ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OF THIS AGREEMENT
AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF SOLELY IN THE COURTS
OF THE STATE OF DELAWARE, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH
THEY ARE ENTITLED AT LAW OR IN EQUITY. EACH OF THE PARTIES HERETO (I) CONSENTS
TO SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF ANY FEDERAL COURT LOCATED IN
THE STATE OF DELAWARE OR ANY DELAWARE STATE COURT IN THE EVENT ANY DISPUTE
ARISES OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, (II) AGREES THAT IT SHALL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL
JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT, AND (III)
AGREES THAT IT SHALL NOT BRING ANY ACTION RELATING TO THIS AGREEMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED BY THIS
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AGREEMENT IN ANY COURT OTHER THAN A FEDERAL COURT SITTING IN THE STATE OF
DELAWARE OR A DELAWARE STATE COURT.
(g) Counterparts. This Agreement may be executed by the parties
hereto 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. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all of the parties
hereto. The Stockholder hereby agrees and acknowledges that it is executing this
Agreement simultaneously with the execution of a similar voting and stock option
agreement by certain of the other Stockholders of the Company.
(h) Further Assurances. Each party hereto shall perform such further
acts and execute such further documents as may reasonably be required to carry
out the provisions of this Agreement, including, without limitation, using
commercially reasonable efforts to obtain all necessary consents, approvals or
waivers under the HSR Act.
(i) Capacity. This Agreement is entered into by the Stockholder
solely in its capacity as a stockholder of the Company, and no provision thereof
shall be deemed to constrain or affect in any way the obligations of the
Stockholder or any of Stockholder's affiliates, employees or representatives in
its or their capacity as an officer or director of the Company.
(j) HSR Fees. Parent and the Company hereby agree and acknowledge
that if the Stockholder is required to make a filing under the HSR Act as a
result of this Agreement or the Merger Agreement, Parent and the Company will
each pay one-half of the Stockholder's filing fee under the HSR Act.
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ANNEX A
COMPANY STOCK
STOCKHOLDER COMMON STOCK OPTIONS
------------------------------------------------------------------------------------------------
Vulcan Ventures, Inc. 3,809,258 --
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Agilent Technologies, Inc. 3,459,791 --
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
OVP Venture Partners
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
In five OVP funds:
Olympic Venture Partners IV, LP 817,039 --
Olympic Venture Partners V, LP 236,236 --
OVP IV Entrepreneurs Fund, LP 30,951 --
OVP V Entrepreneurs Fund, LP 26,248 --
OVMC IV, LLC 88,463 --
▇▇▇▇▇▇▇ ▇. Friend, M.D., Ph.D. 600,014 345,000
c/o Rosetta Inpharmatics, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇ 194,000 240,250
c/o Rosetta Inpharmatics, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12
COMPANY STOCK
STOCKHOLDER COMMON STOCK OPTIONS
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D., Ph.D. 300,000 30,000
c/o Rosetta Inpharmatics, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 10,000 250,000
c/o Rosetta Inpharmatics, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D. 48,501 34,583
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 10,534 50,000
▇/▇ ▇▇▇▇, ▇▇▇▇▇▇▇ Ventures
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ 0 25,000
c/o Vulcan Ventures, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-2-
13
ANNEX B
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
Merck & Co., Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Business
Development and Corporate Licensing
14
IN WITNESS WHEREOF, Parent and the Stockholders have caused this
Agreement to be duly executed as of the day and year first above written.
Rosetta Inpharmatics, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. Friend
-----------------------
Name:
Title:
15
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
Vulcan Ventures, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
16
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
Agilent Technologies, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director, Corporate Development
17
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
Olympic Venture Parners IV, L.P.
By OVMC IV, L.L.C., Its G.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name:
Title:
Olympic Venture Parners V, L.P.
By OVMC V, L.L.C., Its G.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name:
Title:
OVP IV Entrepreneurs Fund, L.P.
By OVMC IV, L.L.C., Its G.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name:
Title:
OVP V Entrepreneurs Fund, L.P.
By OVMC V, L.L.C., Its G.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name:
Title:
OVMC IV, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name:
Title:
18
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
▇▇▇▇▇▇▇ ▇. Friend, M.D., Ph.D.
By: /s/ ▇▇▇▇▇▇▇ ▇. Friend
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. Friend
Title:
19
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title:
20
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D., Ph.D.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP, R&D
21
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name:
Title:
22
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
23
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name:
Title:
24
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Biotechnology Portfolio Manager
