This VOTING AGREEMENT (this Agreement), dated as of December 21, 2020, is by and between NantKwest, Inc., a Delaware corporation (Parent), ImmunityBio, Inc., a Delaware corporation (the Company), and the Persons set forth on Schedule A (the Company Significant Stockholders).
WHEREAS, concurrently with the execution and delivery hereof, the Company, Parent and Nectarine Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent, have entered into an Agreement and Plan of Merger (as such agreement may be amended or supplemented from time to time pursuant to the terms thereof, the Merger Agreement), which provides for, among other things, the merger of Merger Sub with and into the Company, with the Company being the surviving corporation (the Merger), as a result of which Merger the Company will become a wholly owned Subsidiary of Parent, subject to the conditions set forth in the Merger Agreement (capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement);
WHEREAS, the affirmative vote of holders of a majority of the outstanding Company Shares is the only vote of the holders of the Companys capital stock necessary to adopt the Merger Agreement and approve the Merger;
WHEREAS, as of the date hereof, each Company Significant Stockholder, is the record or beneficial owner of the number of Company Shares set forth opposite such Company Significant Stockholders name on Schedule A (such Company Shares, together with any other Company Shares acquired by such Company Significant Stockholder after the date hereof and during the term of this Agreement, being collectively referred to as the Subject Shares of such Company Significant Stockholder); and
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, the Company and Parent have required that the Company Significant Stockholders, and as an inducement and in consideration therefor, the Company Significant Stockholders (in each Company Significant Stockholders capacity as a holder of Company Shares) has agreed to, enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
VOTING AGREEMENT; TRANSFER RESTRICTION
1.1. Voting of Company Shares. Not later than two (2) Business Days after the Form S-4 is declared effective by the SEC, each Company Significant Stockholder shall deliver to the Company a written consent in respect of all Company Shares over which such Company Significant Stockholder then has the right to vote or direct the voting in favor of the adoption of the Merger Agreement and the approval of the transactions contemplated by the Merger Agreement (including the Merger) and any other actions presented to the holders of Company Shares (the Company Stockholders) that are necessary or desirable to consummate the transactions contemplated by the Merger Agreement (the Company Stockholder Approval). In addition, each Company Significant Stockholder agrees that from and after the date hereof, at every meeting of the Company Stockholders, however called, and at every adjournment or postponement thereof (or pursuant to a written consent if the Company Stockholders act by written consent in lieu of a meeting), such Company Significant Stockholders shall, or shall cause the holder of record on any applicable record date to, be present (in person or by proxy) and to vote (or cause to be voted) the Subject Shares over which such Company Significant Stockholder then has the right to vote or direct the voting against (a) any action, proposal, agreement, transaction or proposed transaction that would reasonably be expected to result in a breach in any material respect of any obligation of