TENDER AGREEMENT
Exhibit (e)(2)(B)
EXECUTION COPY
TENDER AGREEMENT, dated as of November 30, 2010 (this “Agreement”), by and between
Axcan Pharma Holding B.V., a private limited liability company organized under the laws of the
Netherlands (“Acquiror”), on the one hand, and Xxxxxxx X. Xxxxxxx (the
“Shareholder”), on the other hand. Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Purchase Agreement.
W I T N E S S E T H:
WHEREAS, Acquiror and Eurand N.V., a Netherlands company (the “Company”), are,
concurrently with the execution and delivery of this Agreement, entering into a Share Purchase
Agreement, dated the date hereof (the “Purchase Agreement”); and
WHEREAS, as of the date hereof, the Shareholder is the beneficial owner (as defined under Rule
13d-3 of the Exchange Act) of the Company Shares set forth under the Shareholder’s name on the
signature page to this Agreement (the “Existing Shares” and, together with any Company
Shares, voting securities and other capital stock of the Company acquired by the Shareholder after
the date hereof, the “Shares”) and the options to purchase Company Shares set forth under
the Shareholder’s name on the signature page to this Agreement (the “Existing Options” and,
together with the Shares and options or warrants to purchase Company Shares, voting securities or
other capital stock of the Company acquired by the Shareholder after the date hereof, the
“Securities”); and
WHEREAS, as a condition to its willingness to enter into the Purchase Agreement, Acquiror has
requested that the Shareholder enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties,
covenants and agreements contained herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
AGREEMENTS
1.1. Agreement to Tender. Unless this Agreement shall have previously been terminated in
accordance with its terms, the Shareholder agrees to accept the Offer with respect to all the
Shares he has the ability to tender in the Offer and to tender all such Shares pursuant to the
Offer. Such tender shall be made within ten (10) Business Days of the commencement of the Offer,
and with respect to any Shares obtained after such date, promptly after such Shares are obtained.
The Shareholder shall not withdraw any Shares tendered pursuant to the Offer unless either (i) this
Agreement terminates pursuant to Section 4.1 or (ii) the Offer shall have been terminated pursuant
to the terms of the Purchase Agreement. Acquiror shall pay the Shareholder
for any Shares validly
tendered and not withdrawn in accordance with the Purchase Agreement
and this Section 1.1 on, but subject to the occurrence of, the Closing. If the Offer or this
Agreement is terminated in accordance with its terms, in either case prior to the Closing, Acquiror
shall cause the depository acting on behalf of Acquiror to return all tendered Shares to the
Shareholder promptly. The Shareholder agrees to permit Acquiror to publish and disclose in the
Offer Documents (including all related documents and schedules filed with the Securities and
Exchange Commission (“SEC”)) and in any announcement, filing or disclosure required by the
SEC, NASDAQ or applicable Law, his identity and ownership of Shares, the nature of his commitments,
arrangements and understandings under this Agreement and any other information concerning him that
is required by applicable Law and that he has had the opportunity to review and reasonably revise
prior to any such publication or disclosure.
1.2. Agreement to Vote. From and after the date hereof and until this Agreement terminates
pursuant to Section 4.1, at every meeting of the shareholders of the Company, however called, and
at every adjournment or postponement thereof, or in connection with any written consent of the
shareholders of the Company, relating to any proposed action by the shareholders of the Company
with respect to the matters set forth in Section 1.2(b) below, the Shareholder irrevocably agrees
to:
(a) appear at each such meeting or otherwise cause the Shares owned beneficially or of record
by the Shareholder to be counted as present thereat for purposes of calculating a quorum; and
(b) vote (or cause to be voted), in person or by proxy, all the Shares and any other voting
securities of the Company (whenever acquired) that are owned beneficially or of record by the
Shareholder as to which the Shareholder has, directly or indirectly, the right to vote or direct
the voting, (i) in favor of approval of the Purchase Agreement and each of the other transactions
contemplated thereby, (ii) in favor of each of the actions set forth in Section 2.04 of the
Purchase Agreement, in each case effective as of, and conditional upon, the occurrence of the
Closing, (iii) against any action or agreement submitted for approval of the shareholders of the
Company 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 contained in the Purchase Agreement or
of the Shareholder contained in this Agreement, (iv) against any action, agreement or transaction
submitted for approval to the shareholders of the Company that would reasonably be expected to
materially impede, interfere or be inconsistent with, delay, postpone, discourage or materially and
adversely affect the timely consummation of the Offer; and (v) against any other action, agreement
or transaction submitted for approval to the shareholders of the Company that would constitute an
Acquisition Proposal.
1.3. Obligations as Director and Officer. Notwithstanding anything in this Agreement or the
Purchase Agreement to the contrary, in no event shall the Shareholder be obliged to take or refrain
from taking any action in contravention of any obligation the Shareholder may then owe as a
director and officer of the Company.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of the Shareholder. The Shareholder hereby represents and
warrants to Acquiror as follows:
(a) Authorization; Validity of Agreement; Necessary Action. This Agreement has been
duly executed and delivered by the Shareholder and constitutes a valid and binding obligation of
the Shareholder, enforceable in accordance with its terms (except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and by general equity principles).
(b) Ownership. As of the date hereof, the number of Company Shares beneficially owned
(as defined under Rule 13d-3 of the Exchange Act) by the Shareholder is set forth under the
Shareholder’s name on the signature page to this Agreement. The Existing Shares and Existing
Options are, and (except as otherwise expressly permitted by this Agreement) any additional Company
Shares and any options and warrants to purchase Company Shares acquired by the Shareholder after
the date hereof and prior to the Closing will be, owned beneficially by the Shareholder. As of the
date hereof, the Existing Shares and Existing Options constitute all of the Company Shares held of
record, beneficially owned or for which voting power or disposition power is held or shared by the
Shareholder. The Shareholder has and (except as otherwise expressly permitted by this Agreement)
will have at all times through the Closing sole voting power, sole power of disposition, sole power
to issue instructions with respect to the matters set forth in Article I or Section 3.1 hereof, and
sole right, power and authority to agree to all of the matters set forth in this Agreement, in each
case with respect to all of the Existing Shares and Existing Options and with respect to all of the
Securities at the Closing, with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws and the terms of this Agreement. The Shareholder has good
and valid title to the Existing Shares and Existing Options, free and clear of any Liens and the
Shareholder will have good and valid title to such Existing Shares and Existing Options and any
additional Company Shares and options and warrants to purchase Company Shares acquired by the
Shareholder after the date hereof and prior to the Closing, free and clear of any Liens. Other
than this Agreement and any applicable stock option agreement entered into in connection with the
grant of any of the Existing Options or the grant of any options or warrants to purchase Company
Shares, voting securities or other capital stock after the date hereof, the Shareholder is not
party to any agreement with respect to the voting, acquisition or disposition of Company Shares,
any other voting securities or capital stock of the Company, or any options or warrants to acquire
any of the foregoing. The Shareholder has revoked or terminated any proxies, voting agreements or
similar arrangements previously given or entered into with respect to the Shares.
(c) No Violation. The execution and delivery of this Agreement by the Shareholder
does not, and the performance by the Shareholder of his obligations under this Agreement will not,
(i) assuming the filing of such reports as may be required under Sections 13(d) and 16 of the
Exchange Act, which the Shareholder will file, conflict with or violate any Law applicable to the
Shareholder or (ii) conflict with, result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or cancellation of, or
require payment under, or result in the creation of any Lien on the properties or assets of the
Shareholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Shareholder is a party or by which
the Shareholder, except for any of the foregoing as would not reasonably be expected, either
individually or in the aggregate, to materially impair the ability of the Shareholder to perform
his obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
The execution and delivery of this Agreement by the Shareholder does not, and the performance of
this Agreement by the Shareholder will not, require any consent, approval, authorization or permit
of, or filing with or notification to any (i) Governmental Authority or stock exchange, except for
filings that may be required under the Exchange Act, the HSR Act and other Antitrust Laws or (ii)
other third party.
(d) Information. None of the information relating to the Shareholder provided by or
on behalf of the Shareholder in writing for inclusion in the Offer Documents or the Schedule 14D-9
will, at the respective times such documents are filed with the SEC or are first published, sent or
given to shareholders of the Company, contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(e) Reliance. The Shareholder understands and acknowledges that Acquiror is entering
into the Purchase Agreement in reliance upon the Shareholder’s execution and delivery of this
Agreement.
(f) Absence of Litigation. As of the date hereof, there is no suit, action,
investigation or proceeding pending or, to the knowledge of the Shareholder, threatened against the
Shareholder before or by any Governmental Authority that would impair the ability of the
Shareholder to perform his obligations hereunder or to consummate the transactions contemplated
hereby on a timely basis.
(g) Shareholder has Adequate Information. The Shareholder is a sophisticated seller
with respect to the Shares and other Securities and has adequate information concerning the
business and financial condition of the Company to make an informed decision regarding the sale of
the Shares and other Securities and has independently and without reliance upon Acquiror and based
on such information as the Shareholder has deemed appropriate, made his own analysis and decision
to enter into this Agreement. The Shareholder acknowledges that Acquiror has not made and makes no
representation or warranty, whether express or implied, of any kind or character except as
expressly set forth in this Agreement. The Shareholder acknowledges that the agreements contained
herein with respect to the Shares by the Shareholder is irrevocable.
2.2. Representations and Warranties of Acquiror. Acquiror hereby represents and warrants to
the Shareholder as follows:
(a) Authorization; Validity of Agreement; Necessary Action. Acquiror is duly
organized, validly existing and in good standing under the laws of The Netherlands. Acquiror has
all requisite power and authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this Agreement and the
consummation by Acquiror of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of Acquiror. This Agreement has been duly executed and delivered by
Acquiror and constitutes a valid and binding obligation of it, enforceable in accordance with its
terms (except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and by general
equity principles).
(b) No Conflicts. The execution and delivery of this Agreement by Acquiror does not,
and the performance by it of its obligations under this Agreement will not, (i) conflict with or
violate any Law applicable to Acquiror or by which any of its assets or properties is bound or (ii)
conflict with, result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or require payment under, or result in the creation of
any Lien on the properties or assets of Acquiror pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or obligation to which
Acquiror is a party or by which Acquiror or any of its assets or properties is bound, except for
any of the foregoing in (i) or (ii) above as could not reasonably be expected, either individually
or in the aggregate, to materially impair the ability of Acquiror to perform its obligations
hereunder or to consummate the transactions contemplated hereby on a timely basis. The execution
and delivery of this Agreement by Acquiror does not, and the performance of this Agreement by
Acquiror will not, require any consent, approval, authorization or permit of, or filing with or
notification to any (i) Governmental Authority, except for filings that may be required under the
Exchange Act, the HSR Act and other Antitrust Laws or (ii) third party, except in the case of (i)
or (ii) above, as could not reasonably be expected, either individually or in the aggregate, to
materially impair the ability of Acquiror to perform its obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
ARTICLE III
OTHER COVENANTS
3.1. Further Agreements of Shareholder. (a) Except as provided herein, the Shareholder
hereby agrees, while this Agreement is in effect, and except as expressly contemplated hereby, not
to, directly or indirectly (i) grant any proxies or powers of attorney or enter into any voting
trust or other agreement or arrangement with respect to the voting of any Shares or other
Securities or (ii) sell, transfer, pledge, encumber, assign, distribute, gift or otherwise dispose
of (including by operation of law) (collectively, a “Transfer”) or enter into any contract,
option or other arrangement or understanding with respect to any Transfer (whether by actual
disposition or effective economic disposition due to hedging, cash settlement or otherwise) of, any
of the Existing Shares, any of the Existing Options, or any additional Company Shares or options or
warrants to purchase Company Shares acquired beneficially or of record by the Shareholder after the
date hereof, or any interest therein. Any action attempted to be taken in violation of the
preceding sentence will be null and void. Notwithstanding the foregoing, nothing in this Section
3.1 shall prohibit a Transfer of Securities by the Shareholder by will or intestate succession upon
the death of the Shareholder, provided that the transferee shall agree to be, and shall be, bound
by the terms and conditions of this Agreement and this
Agreement shall be the legal, valid and binding agreement of such transferee, enforceable
against such transferee in accordance with its terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and by general equity principles).
(b) In case of a stock dividend or stock distribution, or any change in the Company Shares by
reason of any stock dividend or stock distribution, split-up, recapitalization, combination,
exchange of shares or the like, (i) the term “Shares” shall be deemed to refer to and include the
Shares as well as all such stock dividends and stock distributions and any securities into which or
for which any or all of the Shares may be changed or exchanged or which are received in such
transaction and (ii) the term “Securities” shall be deemed to refer to and include the Securities
as well as all such stock dividends and stock distributions and any securities into which or for
which any or all of the Securities may be changed or exchanged or which are received in such
transaction.
(c) The Shareholder agrees, while this Agreement is in effect, to notify Acquiror promptly in
writing of the number of any additional Company Shares, any options or warrants to purchase Company
Shares or other securities of the Company acquired by the Shareholder, if any, after the date
hereof.
(d) The Shareholder agrees, while this Agreement is in effect, (i) to reasonably refrain from
taking, agreeing or committing to take any action that would reasonably be expected to make any
representation and warranty of the Shareholder, as applicable, contained in this Agreement
inaccurate in any respect as of any time during the term of this Agreement or (ii) to take all
reasonable action necessary to prevent any such representation or warranty from being inaccurate in
any respect at any such time. The Shareholder further agrees that he shall use commercially
reasonable efforts to cooperate with Acquiror, as and to the extent reasonably requested by
Acquiror, to effect the transactions contemplated hereby including the Offer.
(e) The Shareholder shall not, and (i) will use his reasonable best efforts to cause members
of his immediate family and each of his controlled affiliates not to, and (ii) will use his
reasonable best efforts to cause his attorneys and other representatives and agents not to,
directly or indirectly, take any action that the Company is prohibited from taking pursuant to
Section 7.03 of the Purchase Agreement. For the purposes of this Agreement, “immediate family”
shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.
(f) No public release or announcement concerning the Offer or this Agreement shall be issued
by the Shareholder without the prior consent of the Acquiror (which consent shall not be
unreasonably conditioned, withheld or delayed), except as such release or announcement may be
required by applicable Laws, stock exchange or self-regulatory organization.
ARTICLE IV
MISCELLANEOUS
4.1. Termination. This Agreement may be terminated at any time by the Acquiror upon written
notice to the Shareholder, and shall terminate automatically, without any further action on the
part of any party hereto, and be of no further force or effect, upon the earliest to occur of (i)
completion of the Closing, (ii) the termination of the Purchase Agreement pursuant to its terms,
(iii) any amendment, modification, change or waiver to the Purchase Agreement executed after the
date hereof that (a) results in a decrease in the Per Share Amount or a change in the form of
consideration to be paid in the Offer or (b) extends the Termination Date beyond August 31, 2011,
and (iv) any amendment to the Purchase Agreement executed after the date hereof that otherwise
requires shareholder approval under applicable laws or the rules of any stock exchange.
4.2. Effect of Termination. Upon such termination, no party shall have any further
obligations or liabilities hereunder except that (i) the obligations of the Shareholder under this
Article IV shall survive termination and (ii) such termination shall not relieve any party from
liability for any breach of this Agreement prior to such termination.
4.3. Shareholder Capacity. No Person executing this Agreement, or any agent or representative
of such Person, who is or becomes during the term of this Agreement a director or officer of the
Company shall be deemed to make any agreement or understanding in this Agreement in such Person’s
capacity as a director or officer of the Company. The Shareholder is entering into this Agreement
solely in his capacity as the record holder or beneficial owner of, or the trustee of a trust whose
beneficiaries are the beneficial owners of, the Shareholder’s Securities and nothing herein shall
limit or affect any actions taken by the Shareholder in his capacity as a director or officer of
the Company.
4.4. Notices. All notices, requests, claims, demands and other communications hereunder shall
be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by
delivery in person, by facsimile or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
if to Acquiror to:
Axcan Pharma Holding B.V.
c/o Axcan Intermediate Holdings Inc.
000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Facsimile No: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxx; President & CEO
c/o Axcan Intermediate Holdings Inc.
000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Facsimile No: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxx; President & CEO
with a facsimile copy to:
Xxxxxxx Xxxxx
General Counsel
Facsimile No: (000) 000-0000
General Counsel
Facsimile No: (000) 000-0000
with additional copies (which shall not constitute notice) to:
Ropes & Xxxx LLP
Prudential Tower
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile: x0 (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx and Xxxxxxx X’Xxxxx
Prudential Tower
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile: x0 (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx and Xxxxxxx X’Xxxxx
if to the Company:
with additional copies (which shall not constitute notice) to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile: x0 (000) 000-0000
Attention: Xxxxxxx Xxxxxxx, Esq.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile: x0 (000) 000-0000
Attention: Xxxxxxx Xxxxxxx, Esq.
if to the Shareholder:
Xxxxxxx Xxxxxxx
Xxx Xx Xxxxxxx 00
Xxxxxxx
Xxxxx, Xxxxx 00000
Xxx Xx Xxxxxxx 00
Xxxxxxx
Xxxxx, Xxxxx 00000
with additional copies (which shall not constitute notice) to:
Xxxxxxxx Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: x0 (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: x0 (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
4.5. Counterparts. This Agreement may be executed in several counterparts, each of
which, when so executed, shall be deemed to be an original, and such counterparts shall, together,
constitute and be one and the same instrument.
4.6. Entire Agreement. This Agreement (together with the Purchase Agreement, to the extent
applicable) constitutes the entire agreement among the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and oral, among the
parties or any of them with respect to the subject matter hereof.
4.7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS RULES OF
THE STATE OF NEW YORK OR ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS,
FOR ITSELF AND ITS LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, TO THE NONEXCLUSIVE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEW YORK FOR ALL PURPOSES IN CONNECTION WITH ANY ACTION OR PROCEEDING WHICH ARISES FROM OR RELATES
TO THIS AGREEMENT, AND HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO PERSONAL SERVICE OF SUMMONS,
COMPLAINT, OR OTHER PROCESS IN CONNECTION THEREWITH, AND AGREES THAT SERVICE MAY BE MADE ON SUCH
PARTY AND SENT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4.4 HEREOF.
4.8. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY OR DISPUTE
THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS
OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS OF THIS SECTION 4.8.
4.9. Amendment. This Agreement may not be amended except by an instrument in writing signed
on behalf of each of the parties hereto.
4.10. Enforcement of the Agreement. The Shareholder agrees that irreparable damage would
occur in the event that any of the provisions of this Agreement were not performed by the
Shareholder in accordance with their specific terms or were otherwise breached by the
Shareholder. It is accordingly agreed that Acquiror (and any permitted assign of Acquiror) shall
be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof, this being in addition to any other remedy to which
they are entitled at law or in equity. Other than as set forth in the proviso to this sentence,
under no circumstances shall the Shareholder be entitled to an injunction or injunctions to prevent
breaches of this Agreement nor shall the Shareholder be entitled to enforce specifically the terms
and provisions of this Agreement; provided, however, that, notwithstanding anything
to the contrary in this sentence, if the Offer or this Agreement is terminated in accordance with
its terms, in either case prior to the Closing, the Shareholder shall be entitled to enforce
specifically any obligation of the Acquiror to cause the depository acting on behalf of the
Acquiror to return all tendered Shares to the Shareholder promptly. In addition, under no
circumstances will the Shareholder in the aggregate be entitled to, nor will the Acquiror be liable
under or in connection with this Agreement, the Purchase Agreement or the Offer for, aggregate
monetary damages in excess of the aggregate amount of a Buyer Fee; provided, for the avoidance of
doubt, that to the extent that Acquiror has paid the Company a Buyer Fee in accordance with the
terms of the Purchase Agreement, Acquiror shall not be liable to the Shareholder for any damages
under or in connection with this Agreement, the Purchase Agreement or the Offer.
4.11. Severability. Any term or provision of this Agreement that is determined by a court of
competent jurisdiction to be invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering
invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction, and if any provision of this Agreement is determined to be so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is enforceable, in all
cases so long as neither the economic nor legal substance of the transactions contemplated hereby
is affected in any manner materially adverse to any party or its shareholders or limited partners.
4.12. Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights,
interests or obligations of any party hereunder shall be assigned by any of the parties hereto
(whether by operation of law or otherwise) without the prior written consent of the other parties.
Any purported assignment without such consent shall be void. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and permitted assigns. The Shareholder agrees that this Agreement and
the obligations hereunder shall attach to the Shareholder’s Securities and shall be binding upon
any Person to whom legal or beneficial ownership of such Securities shall pass, whether by
operation of law or otherwise, including the Shareholder’s heirs, guardians, administrators or
successors. This Agreement is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
4.13. No Waiver. The terms and provisions hereof may not be waived except by an instrument
signed on behalf of the party waiving compliance. The failure of any party to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect of this Agreement
at law or in equity, or to insist upon compliance by any other party with its obligations under
this Agreement, and any custom or practice of the parties at variance
with the terms of this Agreement, shall not constitute a waiver by such party of such party’s
right to exercise any such or other right, power or remedy or demand such compliance.
4.14. Further Assurances. Subject to the terms and conditions of this Agreement, the
Shareholder shall use his reasonable best efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary to fulfill the Shareholder’s obligations under
this Agreement.
4.15. Option Exercises. Nothing in this Agreement shall require the Shareholder to exercise
any option or warrant to purchase Company Shares in connection with the Offer.
4.16. Stop Transfer Instruction; Legends.
(a) Promptly following the date hereof, the Shareholder shall request that the Company deliver
written instructions to the Company’s transfer agent stating that the Securities may not be sold,
transferred, pledged, encumbered, assigned, distributed, given as a gift or otherwise disposed of
during the term of this Agreement without the prior written consent of Acquiror, except as
otherwise provided in Section 1.1.
(b) Promptly following the date hereof, the Shareholder shall request that the Company
instruct its transfer agent to place a legend on the certificates (to the extent the shares are
certificated) representing the Existing Shares as follows: “The Securities represented by this
certificate are subject to restrictions on transfer and may not be sold, transferred, pledged,
encumbered, assigned, distributed, given as a gift or otherwise disposed of except in accordance
with and subject to the terms and conditions of the Tender Agreement, dated November 30, 2010,
between the registered holder hereof and Acquiror.”
(c) The parties hereto agree that the legend set forth above shall be removed and the
restrictions set forth in the legend above shall be of no further force and effect, in each case,
upon termination of this Agreement in accordance with Section 4.1 hereof.
[Remainder of Page Left Blank Intentionally]
IN WITNESS WHEREOF, Acquiror and Shareholder have caused this Agreement to be executed as of
the date first written above by their respective officers thereunto duly authorized.
| AXCAN PHARMA HOLDING B.V. |
||||
| By: | /s/ Xx. Xxxxx Xxxxxxx | |||
| Name: | Xx. Xxxxx Xxxxxxx | |||
| Title: | Authorized Person | |||
| /s/ Xxxxxxx X. Xxxxxxx | |||||
| Xxxxxxx X. Xxxxxxx | |||||
| Existing Shares: 1,761,023 Existing Options: 890,000 Total Number of Company Shares Beneficially Owned: 2,651,023 |
|||||
