Exhibit B
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 24, 1998, between Xxxxxx
Pharmaceuticals, Inc., a Nevada corporation ("Parent"), and Xxxxxxx X. Xxxxxxx
(the "Stockholder").
WHEREAS, Parent and Theratech, Inc., a Delaware corporation (the
"Company"), propose to enter into an Agreement and Plan of Merger, dated the
date hereof (as the same may be amended or supplemented, the "Merger Agreement")
providing for the merger of Jazz Merger Corp., a Delaware corporation and
wholly-owned subsidiary of Parent ("Subsidiary"), with the Company (the
"Merger");
WHEREAS, Stockholder is the record and beneficial owner of 2,299,034 shares
of common stock, par value $.01 per share, of the Company (the "Company Common
Stock"); such securities, as they may be adjusted by stock dividend, stock
split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by the
Company, together with securities that may be acquired after the date hereof by
Stockholder, including Company Common Stock issuable upon the exercise of
options to purchase Company Common Stock (as the same may be adjusted as
aforesaid), being collectively referred to herein as the "Securities"; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Subsidiary have requested that the Stockholder enter into
this Agreement. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Merger Agreement;
NOW, THEREFORE, to induce Parent and Subsidiary to enter into, and in
consideration of them entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein and intending to be legally bound hereby, the parties hereby agree as
follows:
1. Covenants of the Stockholder. Stockholder agrees as follows:
(a) Stockholder shall not, except as contemplated by the terms of this
Agreement, (i) sell, transfer, pledge, assign or otherwise dispose of,
or enter into any agreement, option or other arrangement (including
any profit sharing arrangement) or understanding with respect to the
sale, transfer, pledge, assignment or other disposition of, the
Securities to any person other than Parent or Parent's designee; (ii)
enter into any voting arrangement, whether by proxy, voting agreement,
voting trust, power-of-attorney or otherwise, with respect to the
Securities or (iii) take any other action that would in any way
restrict, limit or interfere with the performance of its obligations
hereunder or the transactions contemplated hereby;
provided, however, that any Stockholder that is an individual may
transfer all or any part of his or her Securities to any sibling or
any other member of his or her immediate family, any of his or her
lineal descendants or any trust for the benefit of any of them, if the
recipient of the Securities agrees in advance in writing delivered to
Parent to be bound by this Agreement. Notwithstanding subsection (i)
above, Stockholder may sell up to 65,000 shares of Company Common
Stock for the limited purpose of satisfying any cash settlement of, or
the unwinding of, his "zero-cost collar" arrangement which expires on
March 9, 1999, as identified on Stockholder's Form 4 for March, 1998,
filed with the Securities and Exchange Commission on April 10, 1998,
if Stockholder has complied with the following: (x) Stockholder has
complied with all legal obligations in order to sell such shares,
including without limitation, compliance with all applicable
securities laws and regulations, compliance with all xxxxxxx xxxxxxx
legislation and policies and receipt of an opinion of counsel
authorizing such sale, if necessary, and (y) Stockholder has provided
Parent with at least ten (10) days prior written notice of his
intention to sell such shares, with appropriate documentation
evidencing compliance with (x) above, such documentation to be
reasonably acceptable to Parent, and (z) such sale does not in any way
jeopardize or otherwise alter the pooling of interest accounting
treatment of the Merger, as determined in the sole discretion of
Parent.
(b) Except as specifically provided in the Merger Agreement, until the
Merger is consummated or the Merger Agreement is terminated, the
Stockholder shall not, nor shall the Stockholder permit any investment
banker, financial adviser, attorney, accountant or other
representative or agent acting on behalf of or at the direction of the
Stockholder (a "Stockholder Representative") to, directly or
indirectly (i) solicit, initiate or encourage (including by way of
furnishing information), or take any other action designed or
reasonably likely to facilitate, any inquiries or the making of any
proposal which constitutes, or may reasonably be expected to lead to,
any Alternative Proposal (as defined in the Merger Agreement) or (ii)
participate in any discussions or negotiations regarding any
Alternative Proposal. Without limiting the foregoing, it is
understood that any violation of the restrictions set forth in the
preceding sentence by a Stockholder Representative shall be deemed to
be a violation of this Section 1(b) by the Stockholder.
(c) At any meeting of stockholders of the Company called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in
any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger and the
Merger Agreement is sought from the stockholders of the Company, the
Stockholder shall vote (or cause to be voted) Stockholder's Securities
in favor of approving the Merger, the adoption of the
Merger Agreement and the approval of the other transactions
contemplated by the Merger Agreement and the calling of a special
meeting of the stockholders of the Company to consider any of the
foregoing. At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, Stockholder
shall vote (or cause to be voted) Stockholder's Securities against (i)
any Alternative Proposal, or (ii) any amendment of the Company's
Certificate of Incorporation or by-laws or other proposal or
transaction involving the Company or any of its subsidiaries or any
motion at a meeting of stockholders of the Company, which amendment or
other proposal or transaction or motion would in any manner impede,
frustrate, prevent or nullify, the Merger, the Merger Agreement or any
of the other transactions contemplated by the Merger Agreement
(collectively, "Frustrating Transactions").
2. Grant of Irrevocable Proxy Coupled with an Interest; Appointment of Proxy.
(a) Stockholder hereby irrevocably grants to, and appoints, any individual
who shall be designated by Parent, and each of them, Stockholder's
proxy and attorney-in-fact (with full power of substitution), for and
in the name, place and stead of such Stockholder, to vote
Stockholder's Securities, or grant a consent or approval in respect of
such Securities, at any meeting of stockholders of the Company or at
any adjournment thereof or in any other circumstances upon which their
vote, consent or other approval is sought, (i) in favor of the Merger,
the adoption by the Company of the Merger Agreement and the approval
of the other transactions contemplated by the Merger Agreement and the
calling of a special meeting of the stockholders of the Company to
consider any of the foregoing, and (ii) against any Alternative
Proposal or Frustrating Transaction.
(b) Stockholder represents that any proxies heretofore given in respect of
Stockholder's Securities are not irrevocable, and that any such
proxies are hereby revoked.
(c) STOCKHOLDER HEREBY AFFIRMS THAT THE PROXY SET FORTH IN THIS SECTION 2
IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE UNTIL THE TIME SET
FORTH IN THE LAST SENTENCE OF THIS SECTION. Stockholder hereby
further affirms that such irrevocable proxy is given in connection
with the execution of the Merger Agreement, and that such irrevocable
proxy is given to secure the performance of the duties of Stockholder
under this Agreement. Stockholder hereby ratifies and confirms all
that the individual voting such irrevocable proxy may lawfully do or
cause to be done by virtue hereof. Such irrevocable proxy is executed
and intended to be irrevocable in accordance with the provisions of
Section 212 of the Delaware
General Corporate Law ("DGCL"). Such irrevocable proxy shall be valid
until the earlier to occur of (i) one year from the date hereof or
(ii) the termination of this Agreement in accordance with its terms.
3. Representations and Warranties of the Stockholder. Stockholder hereby
represents and warrants to Parent as follows:
(a) Authorization. The Stockholder has the legal capacity to execute,
deliver and perform this Agreement. This Agreement constitutes a
valid and binding obligation of the Stockholder enforceable against
the Stockholder in accordance with its terms. If the Stockholder is
married and the Securities constitute community property under
applicable law, this Agreement has been duly authorized, executed and
delivered by, and constitutes the valid and binding agreement of, the
Stockholder's spouse enforceable against such spouse in accordance
with its terms.
(b) No Conflict. The execution, delivery and performance by the
Stockholder of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) result in any breach or
violation of or be in conflict with or constitute a default under any
law or agreement or arrangement to which the Stockholder is a party or
by which the Stockholder is bound, (ii) require any filing by the
Stockholder with or authorization by any governmental entity (other
than 13 D/G amendments) or (iii) require any consent or other action
by any person under, constitute a default under, or give rise to any
right of termination, cancellation or acceleration of a loss of any
benefit to which the Stockholder is entitled under any provision of
any agreement or other instrument binding on the Stockholder.
(c) Ownership of Securities. Stockholder's Securities and the
certificates representing such Securities are now held by Stockholder,
or by a nominee or custodian for the benefit of Stockholder, and the
Stockholder has good and marketable title to such Securities, free and
clear of any (i) liens, proxies, voting trusts or agreements,
understandings or arrangements and (ii) pledges, restrictions, charges
or other adverse claims of any kind or nature (other than the "zero-
cost collar" arrangement described in Section 1(a) above).
Stockholder owns of record or beneficially no securities of the
Company, or any options, warrants or rights exercisable for securities
of the Company, other than the Securities set forth opposite the
Stockholder's name on Schedule A hereto.
(d) Merger Agreement. Stockholder understands and acknowledges that
Parent and Subsidiary are entering into the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this
Agreement.
4. Further Assurances. Stockholder will, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, consents and other instruments as
Parent may reasonably request for the purpose of effectively carrying out
the transactions contemplated by this Agreement and to vest the power to
vote Stockholder's Securities as contemplated by Section 2.
5. Assignment; Binding Effect. Except as set forth herein, 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 parties. Subject
to the preceding sentence, this Agreement shall be binding upon, inure to
the benefit of, and be enforceable by, 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 heirs, successors, executors, administrators and
assigns any rights, remedies, obligations or liabilities under or by reason
of this Agreement.
6. Termination. This Agreement, and all rights and obligations of the parties
hereunder, shall terminate upon the earliest to occur of the Effective Time
or the termination of the Merger Agreement in accordance with its terms.
Nothing in this Section 6 shall relieve any party from liability for
willful breach of this Agreement.
7. Stop Transfer. The Company agrees with, and covenants to, Parent that the
Company shall not register the transfer of any certificate representing
Stockholder's Securities unless such transfer is made in accordance with
the terms of this Agreement.
8. General Provisions.
(a) Expenses. All costs and expenses incurred by Parent in connection
with this Agreement and the transactions contemplated hereby shall be
paid by Parent. All costs and expenses incurred by the Stockholder in
connection with this Agreement and the transactions contemplated
hereby shall be paid by the Company; provided, however, that Parent
shall reimburse Stockholder, or pay for directly if practicable, any
expenses incurred in connection with actions requested by Parent.
(b) Amendments. This Agreement may not be amended except by an instrument
in writing signed by each of the parties hereto.
(c) Notice. All notices and other communications hereunder shall be in
writing and shall be deemed given upon receipt to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
(i) if to Parent, to:
Xxxxxx Pharmaceuticals, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Chairman & CEO
with a copy to:
Xxxxxx Pharmaceuticals, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Legal Department
; and
(ii)if to Stockholder, to the address set forth under the name of
Stockholder on Schedule A attached hereto;
with a copy to:
[Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxxx P. H. Xxxxxxx]
(d) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. 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. Wherever the words "include",
"includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation".
(e) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts
have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same
counterpart.
(f) Entire Agreement; No Third-party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with
respect to the subject matter hereof and (ii) is not intended to
confer upon any person other than the parties hereto any rights or
remedies hereunder.
(g) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without regard to
any applicable conflicts of law.
9. Stockholder Capacity. Stockholder signs solely in his capacity as the
record holder and beneficial owner of, or the trustee of a trust whose
beneficiaries are the beneficial owners of, Stockholder's Securities and
nothing herein shall limit or affect any actions taken by Stockholder in
his capacity as an officer or director, if applicable, of the Company to
the extent specifically permitted by the Merger Agreement.
10. Enforcement. The parties 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 the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in a court of the
United States. This being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties hereto
waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or any of the transactions
contemplated hereby.
STOCKHOLDER AGREES THAT, IN CONNECTION WITH ANY LEGAL SUIT OR PROCEEDING
ARISING WITH RESPECT TO THIS AGREEMENT, IT SHALL SUBMIT TO THE JURISDICTION
OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AND AGREES
TO VENUE IN SUCH COURTS. STOCKHOLDER HEREBY APPOINTS THE SECRETARY OF THE
COMPANY AS HIS AGENT FOR SERVICE OF PROCESS FOR PURPOSES OF THE FOREGOING
SENTENCE ONLY. EACH PARTY HERETO WAIVES ANY RIGHT TO JURY TRIAL IN
CONNECTION WITH ANY SUCH SUIT OR PROCEEDING.
********
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXX PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President, Legal Affairs
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STOCKHOLDER
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
SCHEDULE A
STOCKHOLDER SECURITIES HELD
Xxxxxxx X. Xxxxxxx 2,299,034
