JOINDER AND AMENDMENT TO AMENDED AND RESTATED VOTING AGREEMENT
JOINDER
AND AMENDMENT TO AMENDED AND RESTATED VOTING AGREEMENT
THIS
JOINDER AND AMENDMENT AGREEMENT (“Joinder
Agreement”)
to the
Amended and Restated Voting Agreement dated as of February 6, 2004 (the
"Agreement")
by and
among Acura Pharmaceuticals, Inc. (f/k/a Xxxxxx Drug Co., Inc.), a New York
corporation (the "Company"),
Care
Capital Investments II, LP, Care Capital Offshore Investments II, LP, Essex
Woodlands Health Ventures V, L.P., Xxxxx Partners III, L.P. and the other
signatories thereto, is made and entered into as of November 9, 2005 by and
among the Company, Care Capital Investments II, LP, Care Capital Offshore
Investments II, LP (collectively “Care Capital”), Essex Woodlands Health
Ventures, L.P. (“Essex”), Xxxxx Partners International III, L.P., Xxxxx Partners
III, L.P., Xxxxx Employee Fund III, L.P. (collectively, “Xxxxx”) and GCE
Holdings LLC (the “Transferee”). Capitalized terms used herein but not otherwise
defined shall have the meanings set forth in the Agreement.
WHEREAS,
Transferee is acquiring Securities from each of Care Capital, Essex and Xxxxx;
and
WHEREAS,
Section
6 of the Agreement requires each transferee to which Securities are transferred,
assigned, conveyed or otherwise disposed to agree to be bound by the terms
of
the Agreement (unless such transfer is made pursuant to an effective
registration statement under the Securities Act or through a broker pursuant
to
Rule 144); and
WHEREAS,
the
Parties desire to amend the Agreement to preserve the rights of Care Capital,
Essex and Xxxxx relating to the nomination and election of Company directors
following the conveyance of Securities from each of Care Capital, Essex and
Xxxxx to Transferee.
NOW,
THEREFORE,
the
parties to this Joinder Agreement hereby agree as follows:
1. Amendments.
A. Section
2
of the Agreement is hereby deleted and the following inserted in its
place:
“2. Election
of Director Nominees.
Commencing upon the Company's next upcoming meeting of shareholders, each
Party
and GCE Holdings LLC (the "Designating
Party")
agree
as follows:
| (a) |
Each
Party holding Common Stock, Series A Preferred, Series B Preferred
and
Series C Preferred (collectively, the "Securities")
shall vote its Securities, and take or cause to be taken such other
actions, as may be required from time to time to (i) ensure that
the Board
of Directors consists of no more than seven directors, and (ii)
elect to
the Board of Directors of the Company (A) four (4) persons designated
by
the Designating Party, (B) one person who shall be the Chief Executive
Officer of the Company, and (C) two persons who shall be independent
directors (as defined in Rule 4200(a)(15) of the National Association
of
Securities' Dealers Listing Standards, as may be modified or
supplemented) nominated
and elected to the Board of Directors by the then current directors.
Without limiting the generality of the foregoing, at each annual
meeting
of the shareholders of the Company, and at each special meeting
of the
shareholders and debentureholders of the Company called for the
purpose of
electing directors of the Company, and at any time at which the
shareholders and debentureholders of the Company have the right
to elect
directors of the Company, in each such event, each Party shall
vote all
Securities owned by them (or shall consent in writing in lieu of
a meeting
of shareholders and debentureholders of the Company, as the case
may be),
or take such other actions as shall be necessary, to elect the
Designating
Party's designees as a director of the Company in accordance with
the
preceding provisions of this Section
2(a);
|
| (b) |
Each
Party shall take all actions necessary to remove forthwith the
director
designated by the Designating Party when such removal is requested
for any
reason, with or without cause, by the Designating Party. In the
case of
the death, resignation or removal as herein provided of a Designating
Party's designee, each Party shall vote all Securities held by
it to elect
another person designated by the Designating Party pursuant to
Section
2(a);
|
| (c) |
Each
Party hereby agrees that it will not vote any of its Securities
in favor
of the removal of any director that shall have been designated
by the
Designating Party, unless the Designating Party shall have consented
to
such removal in writing.
|
In
the
event that any Party shall fail to vote the Securities held by it in accordance
with Section 2(a) and (b), such Party shall, upon such failure to so vote,
be
deemed immediately to have granted to the Designating Party, a proxy to vote
its
Securities solely for the election of the nominee of the Designating Party
or
the removal of director designated by the Designating Party. Such Party
acknowledges that each such proxy granted hereby, including any successive
proxy, if necessary, is being given to secure the performance of an obligation
hereunder, is coupled with an interest, and shall be irrevocable until such
obligation is performed;
| (d) |
No
Party shall grant any proxy or enter into or agree to be bound
by any
voting trust with respect to the Securities held by such Party,
or enter
into any shareholder agreement or arrangement of any kind with
any person
with respect to the Securities held by such person that is, in
either
case, inconsistent with the terms of this Agreement (whether or
not such
agreement and arrangement was or is with other shareholders of
the Company
that are or are not parties to this
Agreement);
|
2
| (e) |
The
Company shall take, or cause to be taken, such actions as may be
required
from time to time to establish and maintain executive, audit and
compensation committees of the Board of Directors, as well as such
other
committees of the boards of directors of the Company as the Board
of
Directors shall determine, having such duties and responsibilities
as are
customary for such committees. The designees of the Designating
Party
shall be, if so requested by the Designating Party, in its sole
discretion, a member of each such committee; and
|
| (f) |
The
rights of the Designating Party shall terminate on the date the
Designating Party ceases to be a holder of the Minimum Threshold.
For
purposes hereof, "Minimum Threshold" shall mean at least 50% of
the shares
of Series A Preferred initially transferred and conveyed to the
Designating Party by Care Capital, Essex and Xxxxx (or at least
50% of the
shares of Common Stock issued upon conversion
thereof).”
|
B. Section
7
of the Agreement is hereby deleted and the following inserted in its
place:
“7. Term.
Except
as provided in Sections 2(f) and 6 hereof, this Agreement and the Parties'
obligations hereunder shall continue in effect for so long as the Designating
Party owns the Minimum Threshold.”
C. Section
8
of the Agreement is hereby deleted and the following inserted in its
place:
“8. Amendment.
Any
term of this Agreement or the powers granted hereunder may be amended and
the
observance of any such term or power may be waived (either generally or in
a
particular instance and either retroactively or prospectively) only with
the
written consent of a majority of the Securities then subject to this Agreement,
which majority must include the Designating Party so long as it owns the
Minimum
Threshold.”
D. Section
9.1(a) of the Agreement is hereby deleted and the following inserted in its
place:
“9.1 Binding
Effect.
(a)
This Agreement and the powers granted hereunder shall be binding upon, and
shall
inure to the benefit of, the Designating Party and the Parties.”
E. Section
12 of the Agreement is hereby deleted and the following inserted in its place:
“12. Board
Observer.
So long
as the Designating Party has the right to designate a director pursuant to
Section 2(a) hereof, the Company will permit one observer selected by the
Designating Party to attend all meetings of the Board of Directors of the
Company, and shall provide such observer with such notice and other information
with respect to such meetings as are delivered to the directors of the Company;
provided,
that
such observer shall not be permitted to attend any meeting or portion thereof
or
have access to such other information if, in the judgment of the Company
under
advice of counsel, such observer’s presence or receipt of such information would
adversely affect attorney-client privilege with respect to such meeting or
information.”
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2. Agreement
to be Bound.
Upon
execution of this Joinder Agreement, Transferee shall become a party to the
Agreement and shall, together with the Company, and other parties thereto
be
fully bound by, subject to, and entitled to the rights and benefits of, all
of
the covenants, terms and conditions of the Agreement.
3. Successors
and Assigns.
Except
as otherwise provided herein, this Joinder Agreement shall inure to the benefit
of, and be binding upon and enforceable against, the parties hereto and their
respective successors, assigns, heirs, executors and
administrators.
4. Counterparts.
This
Joinder Agreement may be executed in separate counterparts, including by
facsimile, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
5. Notices.
For
purposes of Section
10
of the
Agreement, all notices, demands or other communications to the Transferee
shall
be directed to the address set forth on the signature page hereto.
6. Governing
Law.
This
Joinder Agreement and rights of the parties hereunder shall be governed in
all
respects by the laws of the State of New York wherein the terms of this Joinder
Agreement were negotiated, excluding to the greatest extent permitted by
law any
rule of law that would cause the application of the laws of any jurisdiction
other than the State of New York.
[SIGNATURE
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Joinder Agreement as of the date first
above
written.
| ACURA PHARMACEUTICALS, INC. | ||
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| By: | /s/ Xxxxxx X. Xxxxxxx | |
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Name:
Xxxxxx X. Xxxxxxx
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| Title: President and Chief Executive Officer | ||
| GCE HOLDINGS LLC | ||
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| By: | /s/ Xxxxx X. Xxxxxx | |
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Name: Xxxxx X. Xxxxxx |
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| Title: | ||
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Address:
c/o Xxxxx Partners III, L.P
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000
Xxxxx Xxxxxx, 0xx Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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| CARE CAPITAL INVESTMENTS II, LP | ||
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| By: | /s/ Xxxxx X. Xxxxxx | |
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Name:
Xxxxx X. Xxxxxx
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| Title: Authorized Signatory | ||
| CARE CAPITAL OFFSHORE INVESTMENTS II, LP | ||
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| By: | /s/ Xxxxx X. Xxxxxx | |
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Name:
Xxxxx X. Xxxxxx
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| Title: Authorized Signatory | ||
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| ESSEX WOODLANDS HEALTH VENTURES V, L.P. | ||
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| By: | /s/ Xxxxxxxx Xxxxxxxxx | |
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Name: Xxxxxxxx Xxxxxxxxx |
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| Title: Managing Director | ||
| XXXXX PARTNERS III, L.P. | ||
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| By: | /s/ Xxxxx Xxxxxxxxxxx | |
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Name: Xxxxx Xxxxxxxxxxx |
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| Title: Member | ||
| XXXXX EMPLOYEE FUND III, L.P. | ||
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| By: | /s/ Xxxxx X. Xxxxxx | |
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Name: Xxxxx X. Xxxxxx |
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| Title: President | ||
| XXXXX PARTNERS INTERNATIONAL III, L.P | ||
| |
|
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| By: | /s/ Xxxxx Xxxxxxxxxxx | |
|
Name: Xxxxx Xxxxxxxxxxx |
||
| Title: Member | ||
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