VOTING AGREEMENT
THIS
VOTING AGREEMENT
(this
“Voting
Agreement”)
is
made and entered into as of February 12, 2008, by and between the undersigned
stockholder (the “Stockholder”)
of
Cellegy Pharmaceuticals, Inc., a Delaware corporation (“Cellegy”),
and
Adamis Pharmaceuticals Corporation, a Delaware corporation (“Adamis”).
RECITALS
X. Xxxxxx
and Cellegy have entered an Agreement and Plan of Reorganization of even date
herewith (the “Merger
Agreement”),
which
provides for the merger of a newly-created and wholly-owned subsidiary of
Cellegy with and into Adamis, with Adamis as the surviving corporation (the
“Merger”).
Capitalized terms used herein but not otherwise defined shall have the meaning
ascribed to them in the Merger Agreement.
B. Stockholder
is the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the “Exchange
Act”))
of
such number of shares of the outstanding capital stock of Cellegy, and shares
subject to outstanding options and warrants, as are indicated on Exhibit
A
to this
Voting Agreement.
C. In
consideration of the execution of the Merger Agreement by Adamis and to induce
Adamis to enter into the Merger Agreement, Stockholder (in his or her capacity
as such) agrees to vote the Shares (as defined below) and other such shares
of
capital stock of Cellegy over which Stockholder has voting power so as to
facilitate consummation of the Merger.
AGREEMENT
NOW,
THEREFORE,
intending to be legally bound, the parties hereto agree as follows:
1. Certain
Definitions.
Capitalized terms not defined herein shall have the meanings ascribed to them
in
the Merger Agreement. For purposes of this Voting Agreement:
(a) “Expiration
Date”
shall
mean the earlier to occur of (i) such date and time as the Merger Agreement
shall have been terminated pursuant to the terms thereof, or (ii) such date
and
time as the Merger has been consummated in accordance with the terms of the
Merger Agreement.
(b) Stockholder
shall be deemed to “Own”
or to
have acquired “Ownership”
of a
security if Stockholder: (i) is the record owner of such security; or (ii)
is
the “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act)
of such security.
(c) “Person”
shall
mean any (i) individual, (ii) corporation, limited liability company,
partnership or other entity, or (iii) governmental authority.
(d) “Shares”
shall
mean: (i) all securities of Cellegy (including all shares of Cellegy Common
Stock, and all options, warrants and other rights to acquire shares of Cellegy
Common Stock) Owned by Stockholder as of the date of this Voting Agreement;
and
(ii) all additional securities of Cellegy (including all additional shares
of
Cellegy Common Stock and all additional options, warrants and other rights
to
acquire shares of Cellegy Common Stock) of which Stockholder acquires Ownership
during the period from the date of this Voting Agreement through the Expiration
Date (including by way of stock dividend or distribution, split-up,
recapitalization, combination, exchange of shares and the
like).
(e) “Transfer”.
A
Person shall be deemed to have effected a “Transfer”
of
a
security if such person directly or indirectly: (i) sells, pledges, encumbers,
assigns, grants an option with respect to, transfers or disposes of such
security or any interest in such security; (ii) enters into an agreement or
commitment providing for the sale of, pledge of, encumbrance of, assignment
of,
grant of an option with respect to, transfer of or disposition of such security
or any interest therein; or (iii) reduces such Person’s beneficial ownership of,
interest in or risk relating to such security.
2. Transfer
of Shares.
(a) Transfer
Restrictions.
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not cause or permit
any
Transfer of any of the Shares to be effected; provided that, notwithstanding
the
foregoing, Stockholder shall not be restricted from effecting a Transfer of
any
Shares to any member of Stockholder’s immediate family or to a trust for the
benefit of Stockholder and/or any member of Stockholder’s immediate family
provided that (A) each such transferee shall have (i) executed a counterpart
of
this Agreement and a proxy in the form attached hereto as Exhibit
A
(with
such modifications as Adamis may reasonably request) and (ii) agreed in writing
to hold such Shares, or such interest therein, subject to all of the terms
and
conditions set forth in this Agreement, and (B) the aggregate number of shares
(whether outstanding or underlying outstanding options and warrants) that may
be
so Transferred by Stockholder may not exceed one percent (1%) of Cellegy’s
outstanding Common Stock as of the date hereof. For purposes of this Agreement,
“immediate family” means Stockholder’s spouse, parents, siblings, children or
grandchildren.
(b) Transfer
of Voting Rights.
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not deposit (or permit
the deposit of) any Shares in a voting trust or grant any proxy or enter into
any voting agreement or similar agreement in contravention of the obligations
of
Stockholder under this Voting Agreement with respect to any of the
Shares.
3. Agreement
to Vote Shares.
At every
meeting of the stockholders of Cellegy called, and at every adjournment thereof,
and on every action or approval by written consent of the stockholders of
Cellegy, Stockholder (in his or her capacity as such) shall, or shall cause
the
holder of record on any applicable record date to, vote the Shares:
(a) in
favor
of approval of the Merger and the adoption and approval of the Merger Agreement,
and in favor of each of the other actions contemplated by the Merger Agreement
(including, without limitation, the Cellegy Charter Amendment, the Cellegy
Name
Change Amendment and the Plan Amendment) and the Proxy and any action required
in furtherance thereof;
(b) in
favor
of any matter that could reasonably be expected to facilitate the
Merger;
(c) against
approval of any proposal made in opposition to, or in competition or
inconsistent with, consummation of the Merger or the transactions contemplated
by the Merger Agreement (including, without limitation, any action or agreement
that would result in a breach of any representation, warranty, covenant or
obligation of Cellegy in the Merger Agreement); and
(d) in
favor
of waiving any notice that may have been or may be required relating to any
reorganization of Cellegy or any subsidiary of Cellegy, any reclassification
or
recapitalization of the capital stock of Cellegy or any subsidiary of Cellegy,
or any sale of assets, change of control, or acquisition of Cellegy or any
subsidiary of Cellegy by any other person, or any consolidation or Merger of
Cellegy or any subsidiary of Cellegy with or into any other person.
Stockholder
further agrees that if a meeting is held Stockholder shall, or shall cause
the
holder of record on any applicable record date to, appear at such meeting or
otherwise cause the Shares to be counted as present thereat for purposes of
establishing a quorum. Before the Expiration Date, the Stockholder shall not
enter into any agreement or understanding with any person to vote or give
instructions in any manner inconsistent with the terms of this
Section 3.
4. Agreement
Not to Exercise Appraisal Rights.
Stockholder hereby irrevocably and unconditionally waives, and agrees not to
exercise any rights to demand appraisal of any Shares which may arise with
respect to the Merger or any related transaction.
5. Directors
and Officers.
Notwithstanding any provision of this Voting Agreement to the contrary, nothing
in this Voting Agreement shall limit or restrict Stockholder from acting in
Stockholder’s capacity as a director or officer of Cellegy (it being understood
that this Voting Agreement shall apply to Stockholder solely in Stockholder’s
capacity as a stockholder of Cellegy) or voting in Stockholder’s sole discretion
on any matter other than those matters referred to in Section 3.
6. Irrevocable
Proxy.
Concurrently with the execution of this Voting Agreement, (a) Stockholder agrees
to deliver to Adamis a proxy in the form attached hereto as Exhibit A
(the
“Proxy”),
which
shall be irrevocable to the fullest extent permissible by law, with respect
to
the Shares, and (b) Stockholder shall cause to be delivered to Adamis an
additional proxy (in the form attached hereto as Exhibit
A)
executed on behalf of the record owner of any Shares that are owned beneficially
(within the meaning of Rule 13d-3 under the Exchange Act), but not of record,
by
Stockholder. Stockholder shall, at his, her or its own expense, perform such
further acts and execute such further promises and other documents and
instruments as may reasonably be required to vest in Adamis the power to carry
out and give effect to the provisions of this Voting Agreement.
7. No
Ownership Interest.
Nothing
contained in this Voting Agreement shall be deemed to vest in Adamis any direct
or indirect ownership or incidence of ownership of or with respect to any
Shares. All rights, ownership and economic benefits of and relating to the
Shares shall remain vested in and belong to Stockholder, and Adamis shall have
no authority to manage, direct, superintend, restrict, regulate, govern, or
administer any of the policies or operations of Cellegy by virtue of this Voting
Agreement or exercise any power or authority to direct Stockholder in the voting
of any of the Shares, except as otherwise provided herein.
8. No
Solicitation.
Stockholder agrees that, during the period from the date of this Agreement
through the Expiration Date, Stockholder shall comply with the provisions of
Section 4.5 of the Merger Agreement.
9. Representations
and Warranties of the Stockholder.
(a) Power;
Binding Agreement.
Stockholder has full power, authority and capacity to execute and deliver this
Voting Agreement and the Proxy, to perform Stockholder's obligations hereunder
and to consummate the transactions contemplated hereby and thereby. If
Stockholder is a corporation or other entity, the execution, delivery and
performance by Stockholder of this Voting Agreement and the consummation by
it
of the transactions contemplated hereby have been duly and validly authorized
by
Stockholder and no other actions or proceedings on the part of Stockholder
are
necessary to authorize the execution and delivery by it of this Voting Agreement
and the consummation by it of the transactions contemplated hereby. This Voting
Agreement and the Proxy have been duly executed and delivered by Stockholder,
and constitute valid and binding obligations of Stockholder, enforceable against
Stockholder in accordance with their terms.
(b) No
Conflicts.
Except
for filings under the Exchange Act, no filing with, and no permit,
authorization, consent, or approval of, any state or federal public body or
authority (“Governmental
Entity”)
is
necessary for the execution of this Voting Agreement and Proxy by Stockholder
and the consummation by Stockholder of the transactions contemplated by this
Voting Agreement and Proxy. None of the execution and delivery of this Voting
Agreement or Proxy by Stockholder, the consummation by Stockholder of the
transactions contemplated by this Voting Agreement and Proxy or compliance
by
Stockholder with any of the provisions of this Voting Agreement and Proxy shall
(i) if Stockholder is a corporation or other entity, conflict with or result
in
any breach of any organizational documents applicable to Stockholder, (ii)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any
of
the terms, conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement,
or other instrument or obligation of any kind to which Stockholder is a party
or
by which Stockholder or any of its properties or assets may be bound, or
(iii) violate
any order, writ, injunction, decree, judgment, order, statute, rule, or
regulation applicable to Stockholder or any of Stockholder's properties or
assets.
(c) Ownership
of Shares.
Stockholder (i) is the beneficial owner of the shares of Cellegy Common Stock
and the options and warrants to purchase shares of Cellegy Common Stock
indicated on Exhibit
A
hereto,
which are free and clear of any liens, adverse claims, charges, security
interests, pledges or options, proxies, voting trusts or agreements,
understandings or agreements, or any other rights or encumbrances whatsoever
(“Encumbrances”)
(except any Encumbrances arising under securities laws or arising hereunder);
and (ii) does not beneficially own any securities of Cellegy other than the
shares of Cellegy Common Stock and options and warrants to purchase shares
of
Cellegy Common Stock indicated on Exhibit
A
hereto.
(d) Voting
Power.
Stockholder has or will have sole voting power, sole power of disposition,
sole
power to issue instructions with respect to the matters set forth herein, and
sole power to agree to all of the matters set forth in this Voting Agreement
and
Proxy, in each case with respect to all of Stockholder's Shares, with no
limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Voting Agreement and
Proxy.
(e) No
Finder’s Fees.
No
broker, investment banker, financial advisor or other person is entitled to
any
broker’s, finder’s, financial adviser’s or other similar fee or commission in
connection with the transactions contemplated by this Voting Agreement and
Proxy
based upon arrangements made by or on behalf of Stockholder.
(f) Reliance
by Adamis.
Stockholder understands and acknowledges that Adamis is entering into the Merger
Agreement in reliance upon Stockholder’s execution and delivery of this Voting
Agreement and Proxy.
10. Certain
Restrictions.
Prior
to the termination of this Voting Agreement, Stockholder agrees not to, directly
or indirectly, take any other action that would make any representation or
warranty of Stockholder contained herein untrue or incorrect.
11. Disclosure.
Stockholder agrees to permit Adamis and Cellegy to publish and disclose in
all
documents and schedules filed with the Securities and Exchange Commission or
any
applicable state authority or agency, and any press release or other disclosure
document that Adamis or Cellegy, in their sole discretion, determine to be
necessary or desirable in connection with the Merger and any transactions
related to the Merger, Stockholder's identity and ownership of Shares and the
nature of Stockholder's commitments, arrangements and understandings under
this
Voting Agreement and Proxy.
12. Consents
and Waivers.
Stockholder hereby gives any consents or waivers that are reasonably required
for the consummation of the Merger under the terms of any agreements to which
the Stockholder is a party or pursuant to any rights the Stockholder may
have.
13. Legending
of Shares.
If so
requested by Adamis, Stockholder agrees that the Shares shall bear a legend
stating that they are subject to this Voting Agreement and to an irrevocable
proxy.
14. Termination.
This
Voting Agreement and the Proxy delivered in connection herewith shall terminate
and shall have no further force or effect as of the Expiration Date. Nothing
in
this Section 14 shall relieve or otherwise limit any party of liability for
breach of this Voting Agreement.
15. Miscellaneous.
(a) Validity.
The
invalidity or unenforceability of any provision of this Voting Agreement will
not affect the validity or enforceability of the other provisions of this Voting
Agreement, which will remain in full force and effect. In the event any
governmental entity of competent jurisdiction holds any provision of this Voting
Agreement to be null, void or unenforceable, the parties hereto will negotiate
in good faith and will execute and deliver an amendment to this Voting Agreement
in order, as nearly as possible, to effectuate, to the extent permitted by
law,
the intent of the parties hereto with respect to such provision.
(b) Binding
Effect and Assignment.
This
Voting Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and
permitted assigns, but, neither this Voting Agreement nor any of the rights,
interests or obligations of the parties hereto may be assigned by either of
the
parties without prior written consent of the other.
(c) Amendments; Waiver.
This
Voting Agreement may be amended by the parties hereto and the terms and
conditions hereof may be waived only by an instrument in writing signed on
behalf of each of the parties hereto, or, in the case of a waiver, by an
instrument signed on behalf of the party waiving compliance.
(d) Specific
Performance; Injunctive Relief.
The
parties hereto acknowledge that Adamis shall be irreparably harmed and that
there shall be no adequate remedy at law for a violation of any of the covenants
or agreements of Stockholder set forth herein or in the Proxy. Stockholder
agrees that, in the event of any breach or threatened breach by Stockholder
of
any covenant or agreement contained in this Agreement or in the Proxy, Adamis
shall be entitled, in addition to any other remedies that may be available
to
Adamis upon any such breach or threatened breach, Adamis shall have the right
to
enforce such covenants and agreements by specific performance, injunctive relief
or by any other means available to Adamis at law or in equity. Stockholder
further agrees that Adamis shall not be required to obtain, furnish or post
any
bond or similar instrument in connection with or as a condition to obtaining
any
remedy referred to in this Section 15(d), and Stockholder irrevocably waives
any
right he, she or it may have to require the obtaining, furnishing or posting
of
any such bond or similar instrument.
(e) Non-Exclusivity.
The
rights and remedies of Adamis under this Voting Agreement are not exclusive
of
or limited by any other rights or remedies which it may have, whether at law,
in
equity, by contract or otherwise, all of which shall be cumulative (and not
alternative). Without limiting the generality of the foregoing, the rights
and
remedies of Adamis under this Agreement, and the obligations and liabilities
of
Stockholder under this Agreement, are in addition to their respective rights,
remedies, obligations and liabilities under common law requirements and under
all applicable statutes, rules and regulations.
(f) Notices.
All
notices and other communications pursuant to this Voting Agreement shall be
in
writing and deemed to be sufficient if contained in a written instrument and
shall be deemed given if delivered personally, telecopied, sent by
nationally-recognized overnight courier or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the parties at the
following address (or at such other address for a party as shall be specified
by
like notice):
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If
to Adamis:
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Adamis
Pharmaceuticals Corporation
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0000
Xxx Xxx Xxxxxxx Xxxx, #000
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Xxx
Xxx, XX 00000.
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Attention:
President
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Telephone:
(000) 000-0000
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with
a copy to:
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Cooley
Godward Kronish LLP
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0000
Xxxxxxxx Xxxx
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Xxx
Xxxxx, XX 00000
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Attention:
Xxxxxxx Xxxxxxxxxxx, Esq.
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Telephone
No.: (000) 000-0000
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Facsimile
No.: (000) 000-0000
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Email:
xxxx@xxxxxx.xxx
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If
to Stockholder:
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To
the address for notice set forth on the signature page
hereof.
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(g) No
Waiver.
The
failure or delay of any party to exercise any right, power or remedy provided
under this Voting Agreement or otherwise available in respect of this Voting
Agreement at law or in equity, or to insist upon compliance by any other party
with its obligation under this Voting Agreement, and any custom or practice
of
the parties at variance with the terms of this Voting Agreement, will not
constitute a waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance. Adamis shall not be deemed
to have waived any claim available to it arising out of this Voting Agreement,
or any power, right, privilege or remedy of Adamis under this Agreement, unless
the waiver of such claim, power, right, privilege or remedy is expressly set
forth in a written instrument duly executed and delivered on behalf of Adamis;
and any such waiver shall not be applicable or have any effect except in the
specific instance in which it is given.
(h) No
Third Party Beneficiaries.
This
Voting Agreement is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
(i) Governing
Law.
This
Voting Agreement and the Proxy shall be governed by the laws of the State of
Delaware, without reference to rules of conflicts of law.
(j) Submission
to Jurisdiction.
All
actions and proceedings arising out of or relating to this Voting Agreement
or
Proxy shall be heard and determined exclusively in any California state or
federal court sitting in San Diego, California. The parties hereto hereby (a)
submit to the exclusive jurisdiction of any state or federal court located
in
San Diego, California, for the purpose of any action arising out of or relating
to this Voting Agreement or Proxy brought by any party hereto, and (b)
irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such action, any claim that it is not subject personally
to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the action is brought in an
inconvenient forum, that the venue of the action is improper, or that this
Voting Agreement, the Proxy or the transactions contemplated hereby may not
be
enforced in or by any of the above-named courts. STOCKHOLDER IRREVOCABLY WAIVES
THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING
TO
THIS VOTING AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS
VOTING AGREEMENT OR THE PROXY.
(k) Rules
of Construction.
The
parties hereto agree that they have been represented by counsel during the
negotiation and execution of this Voting Agreement and Proxy and, therefore,
waive the application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be construed
against the party drafting such agreement or document.
(l) Entire
Agreement.
This
Voting Agreement and the Proxy contain the entire understanding of the parties
in respect of the subject matter hereof, and supersede all prior negotiations,
agreements and understandings, both written and oral, between the parties hereto
with respect to the subject matter hereof.
(m) Severability.
If any
term or other provision of this Voting Agreement is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Voting Agreement shall nevertheless remain
in
full force and effect. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination
shall have the power to limit the term or provision, to delete specific words
or
phrases, or to replace any invalid or unenforceable term or provision with
a
term or provision that is valid and enforceable and that comes closes to
expressing the intention of the invalid or unenforceable term or provision,
and
this Voting Agreement shall be enforceable as so modified. In the event such
court does not exercise the power granted to it in the prior sentence, the
parties hereto shall negotiate in good faith to modify this Voting Agreement
so
as to effect the original intent of the parties as closely as possible in a
mutually acceptable manner.
(n) Interpretation.
(i) Whenever
the words “include,” “includes” or “including” are used in this Agreement they
shall be deemed to be followed by the words “without limitation.” As used in
this Agreement, the term “affiliate” shall have the meaning set forth in
Rule 12b-2 promulgated under the Exchange Act.
(ii) The
article and section headings contained in this Agreement are solely for the
purpose of reference, are not part of the agreement of the parties hereto and
shall not in any way affect the meaning or interpretation of this
Agreement.
(o) Attorneys’
Fees.
If any
legal action or other legal proceeding relating to this Voting Agreement or
the
enforcement of any provision of this Voting Agreement is brought against
Stockholder, the prevailing party shall be entitled to recover reasonable
attorneys’ fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
(p) Expenses.
All
costs and expenses incurred in connection with this Voting Agreement, the Proxy
and the transactions contemplated hereby and thereby shall be paid by the party
incurring such costs and expenses.
(q) Further
Assurances.
From
time to time, at any other party's request and without further consideration,
Stockholder shall (at Stockholder’s sole expense) execute and deliver any
additional documents and take any further lawful action as may be necessary
or
desirable, in the reasonable opinion of
Adamis, to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Voting Agreement and to
carry
out the intent of this Voting Agreement.
(r) Counterparts.
This
Voting Agreement may be executed in several counterparts, each of which shall
be
an original, but all of which together shall constitute one and the same
agreement.
IN
WITNESS WHEREOF, the parties have caused this Voting Agreement to be duly
executed on the day and year first above written.
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ADAMIS
PHARMACEUTICALS
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CORPORATION
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STOCKHOLDER
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By:
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By:
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Signature
of Authorized Signatory
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Signature
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Name:
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Name:
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Title:
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Title:
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Address:
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Address:
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[Signature
Page to Voting Agreement]
EXHIBIT
A
SHARES
BENEFICIALLY OWNED
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shares
of Cellegy Common Stock
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shares
of Cellegy Common Stock issuable upon exercise of outstanding
options
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shares
of Cellegy Common Stock issuable upon exercise of outstanding
warrants
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IRREVOCABLE
PROXY
The
undersigned stockholder ( “Stockholder”)
of
Cellegy Pharmaceuticals, Inc., a Delaware corporation (“Cellegy”),
hereby irrevocably (to the fullest extent permitted by law) appoints Xxxxxx
X.
Xxxxx and Xxxx Xxxxxxx of Xxxxxx Pharmaceuticals Corporation, a Delaware
corporation (“Adamis”)
and
Adamis, and each of them, as the sole and exclusive attorneys and proxies of
the
undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and related rights (to the full extent that the undersigned
is entitled to do so) with respect to all of the shares of capital stock of
Cellegy that now are or hereafter may be beneficially owned by the undersigned,
and any and all other shares or securities of Cellegy issued or issuable in
respect thereof on or after the date hereof (collectively, the “Shares”),
in
accordance with the terms of this Proxy until the Expiration Date (as defined
below). Upon the undersigned’s execution of this Proxy, any and all prior
proxies given by the undersigned with respect to any Shares are hereby revoked
and the undersigned agrees not to grant any subsequent proxies with respect
to
the Shares that are inconsistent with this Proxy until after the Expiration
Date
(as defined in that certain Voting Agreement of even date herewith by and among
Adamis and the undersigned stockholder (the “Voting
Agreement”)).
This
Proxy is irrevocable (to the fullest extent permitted by law), is coupled with
an interest and is granted pursuant to the Voting Agreement, and is granted
in
consideration of Adamis entering into that certain Agreement and Plan of
Reorganization of even date herewith (the “Merger
Agreement”),
by
and among Adamis, Cellegy and Cellegy Holdings, Inc., a wholly-owned subsidiary
of Cellegy. The Merger Agreement provides for the acquisition by Adamis of
Cellegy by means of the merger of a wholly-owned subsidiary of Cellegy with
and
into Adamis, with Adamis as the surviving corporation (the “Merger”).
The
attorneys and proxies named above, and each of them, are hereby authorized
and
empowered by the undersigned, at any time prior to the Expiration Date, to
act
as the undersigned’s attorney and proxy to vote the Shares, and to exercise all
voting, consent and similar rights of the undersigned with respect to the Shares
(including, without limitation, the power to execute and deliver written
consents) at every annual, special or adjourned meeting of stockholders of
Cellegy and in every written consent in lieu of such meeting (i) in favor of
approval of the Merger and the adoption and approval of the Merger Agreement,
and in favor of each of the other actions contemplated by the Merger Agreement
(including, without limitation, the Cellegy Charter Amendment, the Cellegy
Name
Change Amendment and the Plan Amendment) and the Proxy and any action required
in furtherance thereof; (ii) in favor of any matter that could reasonably be
expected to facilitate the Merger; (iii) against approval of any proposal made
in opposition to, or in competition or inconsistent with, the consummation
of
the Merger or the transactions contemplated by the Merger Agreement (including,
without limitation, any action or agreement that would result in a breach of
any
representation, warranty, covenant or obligation of Cellegy in the Merger
Agreement); and (iv) in favor of waiving any notice that may have been or may
be
required relating to any reorganization of Cellegy or any subsidiary of Cellegy,
any reclassification or recapitalization of the capital stock of Cellegy or
any
subsidiary of Cellegy, or any sale of assets, change of control, or acquisition
of Cellegy or any subsidiary of Cellegy by any other person, or any
consolidation or Merger of Cellegy or any subsidiary of Cellegy with or into
any
other person.
The
attorneys and proxies named above may not exercise this Proxy on any other
matter. The undersigned stockholder may vote the Shares on all other
matters.
Any
obligation of the undersigned hereunder shall be binding upon the heirs, estate,
executors, personal representatives, successors and assigns of the undersigned
(including any transferee of the Shares).
If
any
term or other provision of this Proxy is invalid, illegal or incapable of being
enforced by any rule of law, or public policy, all other conditions and
provisions of this Proxy shall nevertheless remain in full force and effect.
If
the final judgment of a court of competent jurisdiction declares that any term
or provision hereof is invalid or unenforceable, the parties hereto agree that
the court making such determination shall have the power to limit the term
or
provision, to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closes to expressing the intention of the invalid
or
unenforceable term or provision, and this Proxy shall be enforceable as so
modified. In the event such court does not exercise the power granted to it
in
the prior sentence, the parties hereto shall negotiate in good faith to modify
this Proxy so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner.
[Signature
Page to Follow]
This
Proxy is irrevocable (to the fullest extent permitted by law). This Proxy shall
terminate, and be of no further force and effect, automatically upon the
Expiration Date.
Dated:
__________________, 2008
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Name of Stockholder:
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[Signature
Page to Irrevocable Proxy]
