TENDER AND SUPPORT AGREEMENT
EXHIBIT
2
This
Tender and Support Agreement dated as of February 20, 2007 (this “Agreement”)
is
among each of the individuals or entities listed on a signature page hereto
(each, a “Shareholder”)
and
Shire plc, a public limited company incorporated under the laws of England
and
Wales (“Parent”).
Capitalized terms used but not defined herein have the meanings assigned
to them
in the Agreement of Merger dated as of the date of this Agreement (including
the
related Plan of Merger, together with any amendments or supplements thereto,
the
“Merger
Agreement”)
among
Parent, Shuttle Corporation, a Virginia corporation and a wholly owned
subsidiary of Parent (“Merger
Sub”),
and
New River Pharmaceuticals Inc., a Virginia corporation (the “Company”).
Each
Shareholder beneficially owns the shares of common stock of the Company,
par
value $0.001 per share (“Company
Common Stock”),
set
forth opposite his or its name on Schedule
A
(all
such shares set forth on Schedule
A
opposite
such Shareholder’s name, such Shareholder’s “Schedule
A Shares”).
Concurrently
with the execution and delivery of this Agreement, Parent, Merger Sub and
the
Company are entering into the Merger Agreement, which provides for, among
other
things, the making of a tender offer by Merger Sub for all of the outstanding
shares of the Company Common Stock and the merger of Merger Sub with and
into
the Company, upon the terms and subject to the conditions set forth
therein.
As
a
condition to Parent’s willingness to enter into the Merger Agreement, Parent has
required that each Shareholder enter into this Agreement.
In
consideration of the foregoing and the mutual covenants, representations,
warranties and agreements set forth herein, and intending to be legally bound,
the parties agree as follows:
Section
1.
Certain
Definitions.
The
following capitalized terms, as used in this Agreement, shall have the meanings
set forth below:
“beneficial
ownership”
of
any
security by any Person means “beneficial ownership” of such security as
determined pursuant to Rule 13d-3 under the Exchange Act, including all
securities as to which such Person has the right to acquire, without regard
to
the 60-day period set forth in such rule. The terms “beneficially
owned”
and
“beneficial
owner”
shall
have correlative meanings.
“Shares”
means,
with respect to any Shareholder, (i) such Shareholder's Schedule A Shares
and
(ii) all shares of Company Common Stock of which such Shareholder acquires
beneficial ownership during the Agreement Period.
“Principal
Shareholder”
means
Xxxxxx X. Xxxx.
Section
2.
Agreement
to Tender.
Each
Shareholder hereby agrees to validly tender or cause to be tendered in the
Offer
all of such Shareholder’s Shares (excluding for purposes of this Section
2
any
Shares that are the subject of
unexercised Options or SARs) pursuant to and in accordance with the terms
of the
Offer as promptly as practicable (but no later than the close of business
on the
17th
business
day) after commencement of the Offer. In furtherance of the foregoing, each
Shareholder shall (i) deliver to the depositary designated in the Offer (the
“Depositary”)
(A) a
letter of transmittal with respect to its Shares complying with the terms
of the
Offer, (B) a certificate or certificates representing such Shares or an “agent's
message” (or such other evidence, if any, of transfer as the Depositary may
reasonably request) in the case of a book-entry transfer of any uncertificated
Shares and (C) all other documents or instruments, to the extent applicable,
required to be delivered by other shareholders of the Company pursuant to
the
terms of the Offer, and/or (ii) instruct its broker or such other Person
that is
the holder of record of any Shares to tender such Shares pursuant to and
in
accordance with the terms of the Offer. Each Shareholder agrees that once
its
Shares are tendered, such Shareholder will not withdraw or cause to be withdrawn
any of such Shares from the Offer, unless and until this Agreement shall
have
been terminated in accordance with Section
13(d).
Upon the
end of the Agreement Period, Parent shall cause the Depositary to immediately
return to each Shareholder all certificates representing such Shareholder's
Shares which had been previously delivered to the Depositary pursuant to
this
Section 2 or, with regard to uncertificated Shares, to take such other
appropriate action to immediately evidence and effect the return of such
Shares
to each Shareholder in book-entry form or otherwise.
Section
3.
Documentation
and Information.
Each
Shareholder (i) consents to and authorizes the publication and disclosure
by
Parent of such Shareholder’s identity and holding of Shares, the nature of such
Shareholder’s commitments, arrangements and understandings under this Agreement
(including, for the avoidance of doubt, the disclosure of this Agreement)
and
any other information, in each case, that Parent reasonably determines is
required to be disclosed by applicable Law in any press release, the Offer
Documents, the Company Proxy Statement (including all schedules and documents
filed with the SEC), or any other disclosure document in connection with
the
Offer, the Merger and any transactions contemplated by the Merger Agreement
and
(ii) agrees promptly to give to Parent any information it may reasonably
require
for the preparation of any such disclosure documents. Each Shareholder agrees
to
promptly notify Parent of any required corrections with respect to any
information supplied by such Shareholder specifically for use in any such
disclosure document, if and to the extent that any such information shall
have
become false or misleading in any material respect.
Section
4.
Voting
Agreement.
During
the period beginning on the date of this Agreement and ending on the earlier
of
(x) the Effective Time, (y) the agreement of the parties hereto to terminate
this Agreement, and (z) the termination of the Merger Agreement in accordance
with its terms (the “Agreement
Period”),
each
Shareholder hereby irrevocably and unconditionally agrees that at any meeting
(whether annual or special and whether or not an adjourned or postponed meeting)
of the holders of Company Common Stock, however called (each, a “Company
Shareholders Meeting”),
or in
connection with any written consent
of the holders of Company Common Stock, each Shareholder shall:
(a) be
present, in person or represented by proxy, or otherwise cause such
Shareholder’s Shares to be counted for purposes of determining the presence of a
quorum at such meeting (to the fullest extent that such Shares may be counted
for quorum purposes under applicable Law);
(b) vote
(or
cause to be voted) or deliver a written consent (or cause a written consent
to
be delivered) with respect to all such Shareholder’s Shares, in each case, to
the fullest extent that such Shares are entitled to be voted at the time
of any
vote or action by written consent:
2
(i) in
favor
of the Section
1
approval
and adoption of the Merger Agreement, the Merger and each of the other actions
contemplated by the Merger Agreement; and (A)
without
limitation of the preceding clause (A),
approval of any proposal to adjourn or postpone the Company Shareholders
Meeting
to a later date if there are not sufficient votes for approval and adoption
of
the Merger Agreement on the date on which the Company Shareholders Meeting
is
held; and
(ii) against
Section
2
any
action or agreement that would reasonably be expected to frustrate the purposes
of, impede, hinder, interfere with, or prevent or delay or adversely affect
the
consummation of the transactions contemplated by the Merger Agreement,
Section
3
any
Takeover Proposal and any action in furtherance thereof, Section
4
any
reorganization, recapitalization or winding-up of the Company or any other
extraordinary transaction involving the Company, or Section
5
any
action, proposal, transaction or agreement that would reasonably be expected
to
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or of such
Shareholder under this Agreement.
Section
5.
Irrevocable
Proxy.
Each
Shareholder, revoking (or causing to be revoked) any proxies that he or it
has
heretofore granted, hereby irrevocably appoints Parent as attorney-in-fact
and
proxy for and on behalf of such Shareholder, for and in the name, place and
stead of such Shareholder, to: (a) attend any and all Company Shareholder
Meetings; (b) vote, express consent or dissent or issue instructions to the
record holder to vote such Shareholder’s Shares in accordance with the
provisions of Section
4(b)
at any
such meeting; and (c) grant or withhold, or issue instructions to the record
holder to grant or withhold, consistent with the provisions of Section
4,
all
written consents with respect to the Shares. The foregoing proxy shall be
deemed
to be a proxy coupled with an interest, is irrevocable (and as such shall
survive and not be affected by the death, incapacity, mental illness or insanity
of such Shareholder) until the end of the Agreement Period and shall not
be
terminated by operation of Law or upon the occurrence of any other event
other
than the termination of this Agreement pursuant to Section
13(d).
Each
Shareholder authorizes such attorney and proxy to substitute any other Person
to
act hereunder, to revoke any substitution and to file this proxy and any
substitution or revocation with the Secretary of the Company. Each Shareholder
hereby affirms that the irrevocable proxy set forth in this Section
5
is given
in connection with and granted in consideration of and as an inducement to
Parent entering into the Merger Agreement and that such irrevocable proxy
is
given to secure the obligations of the Shareholder under Section
4
hereof.
The irrevocable proxy set forth in this Section
5
is
executed and intended to be irrevocable, subject, however, to automatic
termination upon the termination of this Agreement pursuant to Section
13(d).
Parent
covenants and agrees with each Shareholder that Parent will exercise the
foregoing proxy consistent with the provisions of Section
4
hereof.
Section
6.
Representations
and Warranties of Each Shareholder.
Each
Shareholder (other than Principal Shareholder), severally but not jointly
as to
any other Shareholder (including Principal Shareholder), and Principal
Shareholder, jointly and severally with each other Shareholder, represents
and
warrants to Parent as follows (it being understood that, except where expressly
stated to be given or made as of the date hereof only, the representations
and
warranties contained in this Agreement shall be made as of the date hereof
and
as of the date of each Company Shareholders Meeting and the Acceptance
Date):
(a) Organization.
Such
Shareholder, if it is a corporation, partnership, limited liability company,
trust or other entity, is duly organized and validly existing and in good
standing under the laws of the jurisdiction of its
organization.
3
(b) Authorization.
If such
Shareholder is not an individual, it has full corporate, limited liability
company, partnership or trust power and authority to execute and deliver
this
Agreement and to perform its obligations hereunder. If such Shareholder is
an
individual, he has full legal capacity, right and authority to execute and
deliver this Agreement and to perform his obligations hereunder. The execution
and delivery by each Shareholder of this Agreement and the consummation by
each
Shareholder of the transactions contemplated hereby have been duly authorized
by
all necessary action on the part of such Shareholder. This Agreement has
been
duly executed and delivered by such Shareholder and constitutes a valid and
legally binding obligation of such Shareholder, enforceable against such
Shareholder in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law).
(c) No
Violation.
(i) The
execution and delivery of this Agreement by such Shareholder does not, and
the
performance by such Shareholder of such Shareholder's obligations hereunder
will
not, conflict with, or result in any violation of, or constitute a default
(with
or without notice or lapse of time, or both) under, or give rise to a right
of,
or result by its terms in the, termination, amendment, cancellation or
acceleration of any obligation or the loss of a material benefit under, or
to
increased, additional, accelerated or guaranteed rights or entitlements of
any
Person under, or create any obligation to make a payment to any other Person
under, or result in the creation of a Lien on, or the loss of, any of the
properties or assets of such Shareholder (including such Shareholder’s Shares)
pursuant to: (i) if such Shareholder is not an individual, any provision
of its
articles of incorporation, bylaws or similar organizational documents; or
(ii)
any Contract to which such Shareholder is a party or by which any of his
or its
properties or assets is bound or any order or Law applicable to such Shareholder
or his or its properties or assets.
(ii) No
consent, approval, order, authorization or Permit of, or registration,
declaration or filing with or notification to, any Governmental Authority
or any
other Person is required by or with respect to such Shareholder in connection
with the execution and delivery of this Agreement by such Shareholder or
the
performance by such Shareholder of such Shareholder's obligations hereunder,
except for the filing with the SEC of any Schedules 13D or 13G or amendments
to
Schedules 13D or 13G and filings under Section 16 of the Exchange Act as
may be
required in connection with this Agreement and the transactions contemplated
hereby.
4
(d) Ownership
of Shares.
As of
the date hereof, each Shareholder is, and (except with respect to any Schedule
A
Shares Transferred in accordance with Section
7(b)
hereof)
at all times during the Agreement Period will be, a beneficial owner of such
Shareholder’s Schedule A Shares. As of the date hereof, the Schedule A Shares
together constitute all of the shares of Company Common Stock beneficially
owned
by the Shareholders. Each Shareholder has, and (except with respect to any
Shares Transferred in accordance with Section
7(b)
hereof)
at all times during the Agreement Period will have, with respect to such
Shareholder’s Shares, either (i) the sole power, directly or indirectly, to vote
or dispose of such Shares or (ii) the shared power, directly or indirectly,
to
vote or dispose of such Shares together with (but only with) one or more
other
Shareholders, and as such, has, and (except with respect to any Shares
Transferred in accordance with Section
7(b)
hereof)
at all times during the Agreement Period will have, the complete and exclusive
power, individually or together with one or more other Shareholders, to,
directly or indirectly, (x) issue (or cause the issuance of) instructions
with
respect to the matters set forth in Section
4,
(y)
agree to all matters set forth in this Agreement and (z) demand and waive
appraisal or dissent rights. Principal Shareholder has, and (except with
respect
to any Shares Transferred in accordance with Section
7(b)
hereof)
at all times during the Agreement Period will have, with respect to Principal
Shareholder’s Shares, the exclusive power to control, directly or indirectly,
any Shareholder that has shared voting and dispositive power over such Shares
with Principal Shareholder. As of the date hereof, with respect to each
Shareholder, except as set forth opposite such Shareholder’s name on
Schedule
A,
such
Shareholder’s Schedule A Shares are issued and outstanding and entitled to be
voted at the Company Shareholder Meeting and such Shareholder does not
beneficially own any warrants, options or other rights to acquire any shares
of
Company Common Stock. Each Shareholder’s Schedule A Shares and all other Shares
of Company Common Stock of which such Shareholder acquires beneficial ownership
during the Agreement Period, shall at all times be free and clear of Liens,
proxies, powers of attorney, voting trusts, options, rights of first offer
or
refusal or agreements (other than any Liens or proxy created by this Agreement).
Except as provided in this Agreement, there are no agreements or arrangements
of
any kind, contingent or otherwise, to which such Shareholder is a party
obligating such Shareholder to Transfer, or cause to be Transferred, any
of such
Shareholder’s Shares. Except pursuant to the Merger Agreement, no Person has any
contractual or other right or obligation to purchase or otherwise acquire
any of
such Shareholder’s Shares.
(e) Absence
of Litigation.
With
respect to any Shareholder, as of the date hereof, there is no action, suit,
investigation or proceeding pending against, or, to the knowledge of such
Shareholder, threatened against or affecting, such Shareholder or any of
its or
his properties or assets (including such Shareholder’s Shares) that could
reasonably be expected to impair the ability of such Shareholder to perform
his
or its obligations hereunder or to consummate the transactions contemplated
hereby on a timely basis.
(f) Opportunity
to Review; Reliance.
Each
Shareholder has had the opportunity to review this Agreement and the Merger
Agreement with counsel of his or its own choosing. Each Shareholder understands
and acknowledges that Parent is entering into the Merger Agreement in reliance
upon such Shareholder’s execution, delivery and performance of this
Agreement.
(g) Finders’
Fees.
No
investment banker, broker, finder or other intermediary is entitled to a
fee or
commission from Parent or the Company in respect of this Agreement based
upon
any arrangement or agreement made by or on behalf of such Shareholder in
his
capacity as such.
5
Section
7.
No
Proxies for or Encumbrances on Covered Shares.
(a) Except
pursuant to the terms of this Agreement or as agreed in writing by Parent,
during the Agreement Period, no Shareholder shall (nor permit any Person
under
such Shareholder’s control to), without the prior written consent of Parent,
directly or indirectly, Section
6
grant
any proxies, powers of attorney, rights of first offer or refusal or enter
into
any voting trust, Section
7
sell
(including short sell), assign, transfer, tender, pledge, encumber, grant
a
participation interest in, hypothecate or otherwise dispose of (including
by
gift) (each, a “Transfer”),
Section
8
otherwise permit any Liens to be created on, or Section
9
enter
into any Contract (including any derivative, hedging or other agreement),
option
or other arrangement (including any profits sharing arrangement) or
understanding with respect to the direct or indirect Transfer of, any Shares.
No
Shareholder shall, and shall not permit any Person under such Shareholder’s
control or any of its or their respective Representatives to, seek or solicit
any such Transfer or any such Contract, option or other arrangement or
understanding and agrees to notify Parent promptly, and to provide all details
requested by Parent, if Principal Shareholder shall be approached or solicited,
directly or indirectly, by any Person with respect to any of the foregoing.
Without limiting the foregoing, no Shareholder shall, and shall not permit
any
Person under such Shareholder’s control or any of its or their respective
Representatives to, take any other action that would make any representation
or
warranty of such Shareholder contained herein untrue or incorrect in any
material respect or in any way restrict, limit or interfere in any material
respect with the performance of such Shareholder’s obligations hereunder or the
transactions contemplated by the Merger Agreement. Without limiting the
foregoing, each Shareholder also agrees not to engage in any transaction
with
respect to any of such Shareholder’s Shares with the primary purpose of
depriving Parent of the intended benefits of this Agreement.
(b) Notwithstanding
the foregoing, each Shareholder shall have the right to Transfer its or his
Shares to a Permitted Transferee of such Shareholder if and only if such
Permitted Transferee shall have agreed in writing, in a manner acceptable
in
form and substance to Parent, Section
10
to
accept such Shares subject to the terms and conditions of this Agreement
and
Section
11
to be
bound by this Agreement and to agree and acknowledge that such Person shall
constitute a Shareholder for all purposes of this Agreement; provided,
however,
that
notwithstanding such Transfer, Principal Shareholder shall continue to be
liable
for any breach by the transferee or other recipient of such Transferred Shares
of this Agreement with respect to such Transferred Shares. “Permitted
Transferee”
means,
with respect to any Shareholder, (A)
any
other Shareholder, (B)
a
spouse, lineal descendant or antecedent, brother or sister, adopted child
or
grandchild or the spouse of any child, adopted child, grandchild or adopted
grandchild of such Shareholder, (C)
any
charitable organization described in Section 170(c) of the Code, (D)
any
trust, the trustees of which include only the Persons named in clause
(A)
or
(B)
and the
beneficiaries of which include only the Persons named in clause (A),
(B),
(C)
or
(D),
(E)
any
corporation, limited liability company or partnership, the shareholders,
members
or general or limited partners of which include only the Persons named in
clause
(A)
or
(B),
or
(F)
if such
Shareholder is a trust, the beneficiary or beneficiaries authorized or entitled
to receive distributions from such trust.
(c) No
Shareholder shall request that the Company register the Transfer (book-entry
or
otherwise) of any certificate or uncertificated interest representing any
of
such Shareholder’s Shares, unless such Transfer is made in compliance with this
Agreement. Each Shareholder hereby authorizes Parent to direct the Company
to
impose stop orders to prevent the Transfer of any Shares on the books of
the
Company in violation of this Agreement.
Section
8.
Street
Name Shares.
With
respect to the 523,650 Schedule A Shares beneficially owned by Xxxxxx X.
Xxxx
(2000) Limited Partnership which are held of record by Xxxxxxx Xxxxxx & Co.,
Inc. (the “Broker”),
Xxxxxx X. Xxxx (2000) Limited Partnership shall, by no later than March 1,
2007,
deliver a letter to the Broker that informs the Broker of such Shareholder's
obligations under this Agreement and that informs the Broker that the Broker
may
not act in disregard of such obligations without the prior written consent
of
Parent.
Section
9.
Waiver
of Appraisal Rights.
Each
Shareholder hereby irrevocably waives any and all rights he or it may have
as to
appraisal, dissent or any similar or related matter with respect to any of
such
Shareholder’s Shares that may arise with respect to the Merger or any of the
transactions contemplated by the Merger Agreement, including, without
limitation, under Article 15 of the VSCA.
6
Section
10.
Notices
of Certain Events.
Each
Shareholder shall notify Parent of any development occurring after the date
hereof that causes, or that would reasonably be expected to cause, any breach
of
any of the representations and warranties of such Shareholder set forth in
Section
6.
Section
11.
Further
Assurances.
Parent
and each Shareholder will each execute and deliver, or cause to be executed
and
delivered, all further documents and instruments and use their respective
reasonable best efforts to take, or cause to be taken, all actions and to
do, or
cause to be done, all things necessary, proper or advisable under applicable
Laws and regulations, to perform their respective obligations under this
Agreement.
Section
12.
Certain
Adjustments.
In the
event of a stock split, stock dividend or distribution, or any change in
the
Company Common Stock by reason of a stock split, reverse stock split,
recapitalization, combination, reclassification, readjustment, exchange of
shares or the like, the terms “Schedule A Shares” and “Shares” shall be deemed
to refer to and include such shares as well as all such stock dividends and
distributions and any securities into which or for which any or all of such
shares may be changed or exchanged or which are received in the
transaction.
Section
13.
Miscellaneous.
(a) Notices.
All
notices and other communications hereunder shall be in writing and shall
be
deemed duly given or made as of the date of receipt if delivered personally,
sent by telecopier or facsimile (and sender shall bear the burden of proof
of
delivery), sent by overnight courier (providing proof of delivery) or sent
by
registered or certified mail (return receipt requested, postage prepaid),
in
each case, to the parties at the following addresses or facsimile numbers
(or at
such other address or facsimile number for a party as shall be specified
by like
notice):
If
to
Parent:
Shire
plc
Hampshire
International Business Park
Chineham,
Xxxxxxxxxxx
Xxxxxxxxx,
Xxxxxxx, XX00 0XX
Attention:
Tatjana May, General Counsel
Facsimile:
x00 (0) 00 0000 0000
with
a
copy to:
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx X. XxXxxxxx, Xx.
Facsimile
No.: (000) 000-0000
7
If
to a
Shareholder, to his, her or its address set forth on a signature page hereto,
with copies to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
Facsimile:
(000) 000-0000
and
to:
Xxxxxxxx
Xxxxxxx, LLP
0000
Xxxxxx Xxxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxx X. Xxxxxx, Esq.
Facsimile:
(000) 000-0000
(b) Entire
Agreement; No Third Party Beneficiaries; Amendment.
(i) This
Agreement constitutes the entire agreement, and supersedes all prior
understandings, agreements or representations, by or among the parties hereto
with respect to the subject matter hereof.
(ii) This
Agreement shall not confer any rights or remedies upon any Person or entity
other than the parties hereto and their respective permitted successors and
permitted assigns.
(iii) This
Agreement may only be amended by a written instrument executed and delivered
by
Parent and the Shareholder who or which is to be party to and bound by such
amendment.
(c) Assignment;
Binding Effect.
Subject
to Section
7(b),
neither
any Shareholder, on the one hand, nor Parent, on the other hand, may assign
this
Agreement or any of his or its rights, interests or obligations hereunder
(whether by operation of Law or otherwise) without the prior written approval
of
Parent or such Shareholder, as applicable, and any attempted assignment without
such prior written approval shall be void and without legal effect; provided,
however,
that
Parent may assign its rights hereunder to a direct or indirect wholly owned
Subsidiary of Parent, it being understood and agreed that any such assignment
shall not relieve Parent of its obligations hereunder. Subject to the preceding
sentence, this Agreement shall be binding upon and inure to the benefit of
the
parties hereto and their respective permitted successors and permitted
assigns.
(d) Termination.
This
Agreement shall automatically terminate and become void and of no further
force
or effect at the end of the Agreement Period; provided,
however,
that no
such termination shall relieve or release any Shareholder or Parent from
any
obligations or liabilities arising out of his or its breach of this Agreement
prior to its termination.
(e) Governing
Law; Consent to Jurisdiction; WAIVER OF JURY TRIAL.
(i) This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York, without regard to the conflicts of law rules of such state,
except to the extent that the VSCA is applicable to this
Agreement.
8
(ii) Each
party agrees that any dispute or disagreement between or among any of the
parties as to the interpretation of any provision of, or the performance
of
obligations under, this Agreement shall be commenced and prosecuted in its
entirety solely in the United States District Court for the Eastern District
of
Virginia and any reviewing appellate court thereof. If the United States
District Court for the Eastern District of Virginia, or any reviewing appellate
court thereof, finds that it does not have jurisdiction over the dispute
or
disagreement, then and only then can the parties proceed in state court and
the
parties hereby agree that any such dispute will only be brought in state
court
in Richmond, Virginia. Each party consents to personal and subject matter
jurisdiction and venue in such Virginia federal or state courts (as the case
may
be) and waives and relinquishes all right to attack the suitability or
convenience of such venue or forum by reason of their present or future
domiciles, or for any other reason. The parties acknowledge that all directions
issued by the forum court, including all injunctions and other decrees, will
be
binding and enforceable in all jurisdictions and countries. Process in any
such
suit, action or proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court. Without limiting
the foregoing, each party agrees that service of process on such party as
provided in Section
13(a)
shall be
deemed effective service of process on such party.
(iii) EACH
OF
THE PARTIES HERETO HEREBY 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.
(f) Severability.
If any
term or other provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced by any
rule
of Law or public policy, all other terms, provisions and conditions of this
Agreement shall nevertheless remain in full force and effect.
(g) Specific
Performance.
Parent
and each Shareholder agrees 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 Parent and each Shareholder 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 any court specified in
Section
13(e)(ii),
without
bond or other security being required, this being in addition to any other
remedy to which they are entitled at Law or in equity.
(h) Expenses.
All
costs and expenses incurred in connection with this Agreement shall be paid
by
or on behalf of the party incurring such cost or expense.
(i) Counterparts.
This
Agreement may be executed in counterparts (each of which shall be deemed
to be
an original but all of which taken together shall constitute one and the
same
agreement) and shall become effective when each party hereto shall have received
a counterpart hereof signed by all of the other parties hereto.
(j) Headings.
The
Section headings contained in this Agreement are inserted for convenience
only
and shall not affect in any way the meaning or interpretation of this
Agreement.
(k) Interpretation.
Any
reference to any national, state, local or foreign Law shall be deemed also
to
refer to all rules and regulations promulgated thereunder, unless the context
otherwise requires. When a reference is made in this Agreement to Sections
or
Schedules, such reference shall be to a Section of or Schedule to this Agreement
unless otherwise indicated. Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by
the words “without limitation.” In this Agreement, the Shareholder of any
Company Common Stock held in trust shall be deemed to be the relevant trust
and/or the trustees thereof acting in their capacities as such trustees,
in each
case as the context may require to be most protective of Parent, including
for
purposes of such trustees’ representations and warranties as to the proper
organization of the trust, their power and authority as trustees and the
non-contravention of the trust’s governing instruments.
9
(l) No
Presumption.
This
Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing any
instrument to be drafted.
(m) Obligations.
The
obligations of each Shareholder (other than Principal Shareholder) under
this
Agreement are several and not joint, and no Shareholder (other than Principal
Shareholder) shall have any liability or obligation under this Agreement
for any
breach hereunder by any other Shareholder (including Principal Shareholder).
The
obligations of Principal Shareholder under this Agreement are joint and several
with each other Shareholder, and Principal Shareholder shall be liable under
this Agreement for any breach hereunder by any other Shareholder.
(n) No
Limitation on Actions as Director.
Notwithstanding any other provision of this Agreement, nothing in this Agreement
is intended to, or shall be construed to, prohibit a Shareholder, or any
officer
or Affiliate of a Shareholder who is a director of the Company, from taking
any
action in his or her capacity as a member of the Company’s Board of Directors or
from exercising his or her fiduciary duties as a member of the Company’s Board
of Directors.
Section
14.
Representations
and Warranties of Parent.
Parent
represents and warrants to each Shareholder, as of the date hereof and as
of the
date of each Company Shareholders Meeting and the Acceptance Date, that it
has
full corporate or other power and authority to execute and deliver this
Agreement and, subject to obtaining the Parent Shareholder Approvals, to
perform
its obligations hereunder. The execution and delivery by Parent of this
Agreement and the consummation by Parent of the transactions contemplated
hereby
have been duly authorized by all necessary action on the part of Parent.
This
Agreement has been duly executed and delivered by Parent and constitutes
a valid
and legally binding obligation of Parent, enforceable against Parent in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law).
[The
next
page is the signature page]
10
The
parties hereto have executed this Tender and Support Agreement as of the
date
first written above.
|
SHIRE
PLC
|
|
|
|
|
|
By:
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/s/
Xxxxx Xxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
Director
|
[Shareholder
Signatures Begin on the Next Page]
|
/s/
Xxxxxx X. Xxxx
|
|
|
XXXXXX
X. XXXX
|
|
Address:
|
|
0000
Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
|
|
Facsimile:
(000) 000-0000
|
[Tender
and Support Agreement -- Shareholder Signature Page]
12
|
KIRKFIELD,
L.L.C.
|
|
|
|
|
|
|
|
|
By:
|
/s/
Xxxxxx X. Xxxx
|
|
Name:
|
Xxxxxx
X. Xxxx
|
|
Title:
|
Manager,
Third Security, LLC, which is the Manager of Kirkfield, L.L.C.
|
|
Address:
|
|
0000
Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
|
|
Facsimile:
(000) 000-0000
|
[Tender
and Support Agreement -- Shareholder Signature Page]
|
NEW
RIVER MANAGEMENT II, LP
|
|
|
|
|
By:
|
/s/
Xxxxxx X. Xxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxx
|
|
Title:
|
Manager,
Third Security, LLC, which is the Manager of Third Security Capital
Partners, LLC, which is the General Partner of New River Management
II,
LP
|
|
Address:
|
|
0000
Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
|
|
Facsimile:
(000) 000-0000
|
[Tender
and Support Agreement -- Shareholder Signature Page]
|
NEW
RIVER MANAGEMENT III, LP
|
|
|
|
|
|
|
|
By:
|
/s/
Xxxxxx X. Xxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxx
|
|
Title:
|
Manager,
Third Security, LLC, which is the Manager of Third Security Capital
Partners III, LLC, which is the General Partner of New River
Management
III, LP
|
|
Address:
|
|
0000
Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
|
|
Facsimile:
(000) 000-0000
|
[Tender
and Support Agreement -- Shareholder Signature Page]
|
RJK,
L.L.C.
|
|
|
|
|
|
|
|
By:
|
/s/
Xxxxxx X. Xxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxx
|
|
Title:
|
Manager,
Third Security, LLC, which is the Manager of RJK, L.L.C.
|
|
Address:
|
|
0000
Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
|
|
Facsimile:
(000) 000-0000
|
[Tender
and Support Agreement -- Shareholder Signature Page]
|
THIRD
SECURITY STAFF 2001 LLC
|
|
|
|
|
|
|
|
By:
|
/s/
Xxxxxx X. Xxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxx
|
|
Title:
|
Manager
|
|
Address:
|
|
0000
Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
|
|
Facsimile:
(000) 000-0000
|
[Tender
and Support Agreement -- Shareholder Signature Page]
|
XXXXXX
X. XXXX (2000) LIMITED PARTNERSHIP
|
|
|
|
|
|
|
|
By:
|
/s/
Xxxxxx X. Xxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxx
|
|
Title:
|
President,
Lotus Capital (2000) Company Inc., the Corporate General Partner
of Xxxxxx
X. Xxxx (2000) Limited Partnership
|
|
Address:
|
|
Dept.391
0000
Xxxxxxx Xxx., Xxx. 000
Xxxxxx,
XX 00000
|
|
Facsimile:
(000) 000-0000
|
[Tender
and Support Agreement -- Shareholder Signature Page]
TRUST
UNDER X.X. XXXX DECLARATION OF TRUST, DATED MARCH 29, 2000, BETWEEN
XXXXXX
X. XXXX, AS SETTLOR, AND XXXXXX X. XXXX, AS
TRUSTEE
|
|||
|
|
||
|
|||
By:
|
/s/
Xxxxxx X. Xxxx
|
, as trustee | |
Name:
|
Xxxxxx
X. Xxxx
|
|
Address:
|
|
0000
Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
|
|
Facsimile:
(000) 000-0000
|
[Tender
and Support Agreement -- Shareholder Signature Page]
|
LOTUS
CAPITAL (2000) COMPANY INC.
|
|
|
|
|
|
|
|
By:
|
/s/
Xxxxxx X. Xxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxx
|
|
Title:
|
President
|
|
Address:
|
|
Dept.391
0000
Xxxxxxx Xxx., Xxx. 000
Xxxxxx,
XX 00000
|
|
Facsimile:
(000) 000-0000
|
[Tender
and Support Agreement -- Shareholder Signature Page]
SCHEDULE
A
Name
|
Number
of Shares
|
XXXXXX
X. XXXX
|
2,278,668
|
KIRKFIELD,
L.L.C.
|
1,182,665
|
RJK,
L.L.C.
|
5,764,637
|
XXXXXX
X. XXXX
(2000) LIMITED PARTNERSHIP
|
523,650
|
TRUST
UNDER X.X. XXXX DECLARATION OF TRUST, DATED MARCH 29, 2000, BETWEEN
XXXXXX
X. XXXX, AS SETTLOR, AND XXXXXX X. XXXX, AS TRUSTEE
|
1,498,144
|
NEW
RIVER MANAGEMENT II, LP
|
4,415,278
|
NEW
RIVER MANAGEMENT III, LP
|
1,466,218
|
THIRD
SECURITY STAFF 2001 LLC
|
1,471,806
|
LOTUS
CAPITAL (2000) COMPANY, INC.
|
9,350
|
TOTAL
|
18,610,416
|
A-1