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Exhibit 2 to Amendment No. 1 to Schedule 13D
XXXXX VOTING AGREEMENT
THIS XXXXX VOTING AGREEMENT (this "Agreement") is entered into
this 13th day of July, 2000, by and among KING PHARMACEUTICALS, INC., a
Tennessee corporation ("King"), SPIRIT ACQUISITION CORP., a Delaware corporation
and a wholly-owned subsidiary of King ("Merger Sub"), and each of the
undersigned stockholders (each a "Stockholder" and collectively, the
"Stockholders") of XXXXX PHARMA INCORPORATED, a Delaware corporation ("Xxxxx").
WHEREAS, the Stockholders own of record and beneficially the
shares of common stock, par value $.04 per share, of Xxxxx ("Xxxxx Common
Stock") set forth opposite their respective names on Schedule A hereto and
desire to enter into this Agreement with respect to such shares of Xxxxx Common
Stock;
WHEREAS, King, Merger Sub and Xxxxx have contemporaneously
with the execution of this Agreement entered into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of the date hereof, which provides,
among other things, for the merger (the "Merger") of Merger Sub with and into
Xxxxx pursuant to the terms and conditions thereof; and
WHEREAS, as an essential condition and inducement to King and
Merger Sub entering into the Merger Agreement, King has required that the
Stockholders agree, and the Stockholders have agreed, to enter into this
Agreement.
NOW, THEREFORE, the parties hereto, in consideration of the
foregoing, the mutual covenants and agreements contained herein and in the
Merger Agreement and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, and intending to be legally bound
hereby, agree as follows:
SECTION 1. DEFINITIONS
Capitalized terms used herein and not otherwise defined shall
have the meanings given to such terms as in the Merger Agreement.
SECTION 2. VOTING
(a) Each Stockholder hereby agrees to appear, or cause the
holder of record on any applicable record date (the "Record Holder") to appear,
in person or by proxy, for the purpose of obtaining a quorum at any annual or
special meeting of stockholders of Xxxxx and at any adjournment thereof at which
matters relating to the Merger, Merger Agreement or any transaction contemplated
thereby are considered.
(b) Each Stockholder further agrees that such Stockholder
shall vote, or cause the Record Holder to vote, in person or by proxy all of the
shares of Xxxxx Common Stock or any other capital stock of Xxxxx (together, the
"Capital Stock") or any other voting interests in Xxxxx now owned or hereafter
acquired beneficially or of record by such Stockholder in favor of the Merger
and the adoption of the Merger Agreement and the transactions contemplated
thereby (including any amendments or modifications of the terms thereof approved
by the board of directors of Xxxxx and by King) in connection with any meeting
of, or solicitation of consents from, the stockholders of Xxxxx at which or in
connection with which the Merger and the Merger Agreement are submitted for the
consideration and vote of the stockholders of Xxxxx.
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To the extent inconsistent with the foregoing provisions of
this Section 2, each Stockholder revokes any and all previous proxies with
respect to shares of Capital Stock owned beneficially or of record by such
Stockholder.
SECTION 3. AGREEMENT BINDING ON TRANSFEREES
In the event that, at any time or from time to time, a
Stockholder transfers any shares of Capital Stock to any party, which transfer
shall be in compliance with the terms of this Agreement and any Affiliate
Agreement entered into among such Stockholder, Xxxxx and Xxxx, the transferee
shall, unless otherwise consented to in writing by King, take such shares of
Capital Stock subject to all provisions, conditions, and covenants of this
Agreement, and, as a condition precedent to the transfer of such shares of
Capital Stock, the transferee shall agree in writing to be bound by all
provisions of this Agreement by executing and delivering a counterpart of this
Agreement whereupon such transferee shall become a party hereto. In the event
that there shall be any transfer to any person or entity pursuant to any
provision of this Agreement and in compliance with the terms of this Agreement
and any related Affiliate Agreement all references herein to the Stockholders or
to a Stockholder shall be deemed to include such transferee, and the provisions
of this Agreement shall thereafter be binding upon such transferee.
SECTION 4. FURTHER ASSURANCES
Each Stockholder shall, at King's own expense, perform such
further acts and execute such further documents and instruments as may
reasonably be required to vest in King the power to carry out and give effect to
the provisions of this Agreement. Without limiting the generality of the
foregoing, none of the parties hereto shall enter into any agreement or
arrangement (or alter, amend or terminate any existing agreement or arrangement)
or transaction if such action would materially impair or materially interfere
with the ability of any party to effectuate, carry out and comply with all of
the terms of this Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents
and warrants to King as follows:
(a) Such Stockholder has the legal capacity and all other
power and authority necessary to enter into this Agreement, to perform the
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by such Stockholder and,
assuming due authorization, execution and delivery by King, Merger Sub and the
other parties hereto, constitutes a legal, valid and binding obligation of such
Stockholder, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general applicability relating to or
affecting creditor's rights generally and by the application of general
principles of equity.
(b) The execution and delivery of this Agreement by such
Stockholder and the consummation of the transactions herein contemplated by such
Stockholder will not (i) to the knowledge of such Stockholder, conflict with or
violate any law, regulation, court order, judgment or decree applicable to such
Stockholder or by which the property of such Stockholder is bound or affected,
or (ii) conflict with or result in any breach of or constitute a default under
any contract or agreement to which such Stockholder is a party or by which such
Stockholder or such Stockholder's property is bound or affected, which conflict,
violation, breach or default would adversely affect such Stockholder's ability
to perform the obligations of this Agreement.
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(c) The execution and delivery of this Agreement by such
Stockholder and the consummation of the transactions contemplated hereby by such
Stockholder do not and will not require any consent or other action by any
Person under, any provision of any agreement, contract or other instrument
binding on such Stockholder.
(d) The shares of Xxxxx Common Stock reflected on Schedule A
as being owned by such Stockholder are the only shares of voting Capital Stock
of Xxxxx or any other voting interests in Xxxxx owned beneficially or of record
by such Stockholder, and except as set forth in Schedule A, such Stockholder
does not own any other options, warrants or rights to acquire shares of any
class of capital stock of Xxxxx or any other voting interests in Xxxxx. Such
Stockholder has the sole power respecting voting and transfer of such
Stockholder's shares of Capital Stock. The shares and certificates representing
such shares held by such Stockholder are now, and at all times during the term
hereof will be, owned as indicated on Schedule A by such Stockholder, free and
clear of all liens, claims, security interests, proxies, options, warrants or
other rights, voting trusts or agreements, understandings or arrangements or any
other Encumbrances whatsoever, except for any such Encumbrances or proxies
arising under this Agreement.
(e) No investment banker, broker, finder or other intermediary
is entitled to a fee or commission in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of such Stockholder.
SECTION 6. COVENANTS OF EACH STOCKHOLDER
Except pursuant to the terms of this Agreement, no Stockholder
shall without the prior written consent of King or Merger Sub, directly or
indirectly, grant any proxies or enter into any voting trust or other agreement
or arrangement with respect to the voting of any Capital Stock or any options,
warrants or other rights to acquire stock of Xxxxx which would prevent such
Capital Stock or options, warrants or rights from being voted in accordance with
Section 2 hereof.
SECTION 7. SPECIFIC PERFORMANCE
Each Stockholder acknowledges and agrees that there would be
no adequate remedy at law for King or Merger Sub if such Stockholder fails to
perform any of such Stockholder's obligations hereunder, and accordingly agrees
that King and Merger Sub, in addition to any other remedy to which they may be
entitled at law or in equity, shall be entitled to compel specific performance
of the obligations of such Stockholder under this Agreement in accordance with
the terms and conditions of this Agreement in any court of the United States or
any State thereof having jurisdiction. Each Stockholder hereby waives any
objection to the imposition of such relief or to the posting of a bond in
connection therewith.
SECTION 8. GOVERNING LAW
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law.
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SECTION 9. PARTIES IN INTEREST
This Agreement shall inure to the benefit of and shall be
binding upon the parties hereto and their respective heirs, legal
representatives and permitted assigns. If any Stockholder shall at any time
hereafter acquire ownership of, or voting power with respect to, any additional
shares of Capital Stock or any other voting interests in Xxxxx in any manner,
whether by the exercise of any options or any securities or rights convertible
into or exchangeable for shares of Capital Stock or any other voting interests
in Xxxxx, by operation of law or otherwise, such shares or other interests shall
be held subject to all of the terms and provisions of this Agreement. Without
limiting the foregoing, each Stockholder specifically agrees that the
obligations of such Stockholder hereunder shall not be terminated by operation
of law, whether by death or incapacity of such Stockholder or otherwise.
SECTION 10. AMENDMENT
This Agreement shall not be amended, altered or modified
except by an instrument in writing duly executed and delivered on behalf of each
of the parties hereto.
SECTION 11. SEVERABILITY
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest extent possible.
SECTION 12. WAIVER
Except as provided in this Agreement, no action taken pursuant
to this Agreement, including without limitation any investigation by or on
behalf of any party, shall be deemed to constitute a waiver by the party taking
such action of compliance with any representations, warranties, covenants or
agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a wavier
of any prior or subsequent breach of the same or any other provision hereunder.
SECTION 13. NOTICES
All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
as of the date delivered, mailed or transmitted, and shall be effective upon
receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the telecopier number
specified below:
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If to a Stockholder:
To such Stockholder's address
or telecopier number as set forth
on Schedule A attached hereto
----------
If to King or Merger Sub:
King Pharmaceuticals, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Executive Officer
With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
Suite 1100
0000 Xxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Xx., Esq.
Xxxxxx X. Xxxxx, Esq.
SECTION 14. ENTIRE AGREEMENT; ASSIGNMENT
This Agreement, together with the affiliate agreements (if and
to the extent entered into by any Stockholder and King), (a) constitute the
entire agreement among the parties hereto pertaining to the subject matter
hereof and supersede all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties and (b) shall not be
assigned by operation of law or otherwise, except that this Agreement shall be
binding upon each Stockholder and each Stockholder's successors and assigns.
SECTION 15. HEADINGS
Section headings are included solely for convenience and are
not considered to be part of this Agreement and are not intended to be an
accurate description of the contents thereof.
SECTION 16. COUNTERPARTS
This Agreement may be executed and delivered in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement.
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SECTION 17. TERMINATION
This Agreement and all of the parties' rights and obligations
hereunder shall terminate on the earlier to occur of (a) the date on which the
Merger Agreement is validly terminated pursuant to Section 9.1 thereof, or (b)
the Effective Time (the "Termination Date"); provided, however, that in the
event Xxxxx becomes obligated to pay a Termination Fee to King pursuant to
Section 9.5 of the Merger Agreement, the Termination Date shall mean the date on
which such Termination Fee is received by King.
SECTION 18. OFFICERS AND DIRECTORS; AFFILIATE AGREEMENTS
(a) Notwithstanding anything else herein to the contrary but
subject to the proviso set forth in this Section 18(a), (i) nothing set forth
herein shall be deemed to restrict or otherwise prohibit a Stockholder who is an
officer or director of Xxxxx from exercising, in such individual's capacity as
an officer or director of Xxxxx, what such Stockholder believes in good faith to
be his or her fiduciary duties as an officer or director of Xxxxx to the
stockholders of Xxxxx, and any such exercise of such Stockholder's fiduciary
duties shall not constitute a breach of this Agreement and (ii) no action or
inaction required hereby shall require a Stockholder who is an officer or
director of Xxxxx to take any action or refrain from taking any action, in such
individual's capacity as an officer or director of Xxxxx, that such Stockholder
believes in good faith is required by or would be a breach of his or her
fiduciary duties as an officer or director of Xxxxx to the stockholders of
Xxxxx; provided, however, that, notwithstanding the foregoing, with respect to
any matter set forth in Section 7.9 of the Merger Agreement, each Stockholder
who is an officer or director of Xxxxx shall exercise his or her fiduciary
duties to the stockholders of Xxxxx pursuant to and in accordance with the
provisions of Section 7.9 of the Merger Agreement.
(b) Each Stockholder who also executes and enters into an
Affiliate Agreement hereby agrees and acknowledges that, notwithstanding any
other provisions of this Agreement and in addition to any obligations of such
Stockholder hereunder, such Stockholder is and will be subject to all of the
terms and provisions of such Affiliate Agreement and the obligations of such
Stockholder contained in such Affiliate Agreement are and will be independent,
separate and apart from the obligations of such Stockholder hereunder.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Xxxxx Voting Agreement, or have caused this Xxxxx Voting Agreement to be
executed and delivered on their behalf, as of the date first above written.
KING PHARMACEUTICALS, INC.
By:
-----------------------------------
Xxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
SPIRIT ACQUISITION CORP.
By:
-----------------------------------
Xxxx X. Xxxxxxx
President
STOCKHOLDERS:
XXXXXX X. XXXXX
--------------------------------------
XXXXXX X. XXXXX REVOCABLE TRUST
By:
-----------------------------------
Xxxxxx X. Xxxxx, Trustee
XXXXXX X. XXXXX
--------------------------------------
XXXXXX X. XXXXX REVOCABLE TRUST
By:
-----------------------------------
Xxxxxx X. Xxxxx, Trustee
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XXXXXXX X. XXXXXXXXX
--------------------------------------
G. XXXXXX XXXXX REVOCABLE TRUST
By:
-----------------------------------
G. Xxxxxx Xxxxx, Trustee
G. XXXXXX XXXXX
--------------------------------------
J. XXXXXX XXXXX REVOCABLE TRUST
By:
-----------------------------------
J. Xxxxxx Xxxxx, Trustee
G. XXXXXX XXXXX AND J. XXXXXX XXXXX, joint
tenants with right of survivorship
By:
-----------------------------------
G. Xxxxxx Xxxxx
By:
-----------------------------------
J. Xxxxxx Xxxxx
XXXXXXX XXXXX
By:
-----------------------------------
J. Xxxxxx Xxxxx,
as custodian for the benefit of
Xxxxxxx Xxxxx under UTMA
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XXXXXXXX XXXXX
By:
-----------------------------------
J. Xxxxxx Xxxxx,
as custodian for the benefit of
Xxxxxxxx Xxxxx under UTMA
XXXXXX X. CHOD
--------------------------------------
XXXXXX X. XXXXXX, Ph.D.
--------------------------------------
X. XXXX XXXXXXXXX, III
--------------------------------------
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SCHEDULE A
-------- ---------------------------------------------- -------------------------------- --------------------------------
STOCKHOLDER NAME, ADDRESS AND TELEPHONE XXXXX COMMON STOCK XXXXX COMMON STOCK
NUMBER OWNED OF RECORD OWNED BENEFICIALLY 1/
-------- ---------------------------------------------- -------------------------------- --------------------------------
1. Xxxxxx X. Xxxxx Revocable Trust 4,064,242 4,064,242
c/x Xxxxx Pharma Incorporated
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
2. Xxxxxx X. Xxxxx - 1,215,000
c/x Xxxxx Pharma Incorporated
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
3. Xxxxxx X. Xxxxx Revocable Trust 2,297,107 2,297,107
c/x Xxxxx Pharma Incorporated
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
4. Xxxxxx X. Xxxxx - 303,750
c/x Xxxxx Pharma Incorporated
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
5. Xxxxxxx X. Xxxxxxxxx 129,627 149,877
c/x Xxxxx Pharma Incorporated
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
6. G. Xxxxxx Xxxxx Revocable 105,395 105,395
Trust
c/x Xxxxx Pharma Incorporated
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
7. G. Xxxxxx Xxxxx - 16,087
c/x Xxxxx Pharma Incorporated
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
8. J. Xxxxxx Xxxxx Revocable 219,052 219,052
Trust
c/x Xxxxx Pharma Incorporated
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
9. G. Xxxxxx Xxxxx and J. Xxxxxx 33,490 33,490
Xxxxx
c/x Xxxxx Pharma Incorporated
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
--------
1/ Includes shares of Xxxxx Common Stock issuable upon the exercise of stock
options as of the date of this Agreement.
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-------- ---------------------------------------------- -------------------------------- --------------------------------
STOCKHOLDER NAME, ADDRESS AND TELEPHONE XXXXX COMMON STOCK XXXXX COMMON STOCK
NUMBER OWNED OF RECORD OWNED BENEFICIALLY 1/
-------- ---------------------------------------------- -------------------------------- --------------------------------
10. Xxxxxxx Xxxxx 36,471 36,471
c/x Xxxxx Pharma Incorporated
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
11. Xxxxxxxx Xxxxx 33,906 33,906
c/x Xxxxx Pharma Incorporated
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
12. Xxxxxx X. Chod 20,044 26,794
00 Xxxxx Xxxxxxxx
Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
13. Xxxxxx X. Xxxxxx, Ph.D. 7,362 14,724
0000 Xxxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
14. X. Xxxx Xxxxxxxxx, III 2,250 9,000
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
-------- ---------------------------------------------- -------------------------------- --------------------------------
