FORM OF VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is made and entered into as of
October 22, 2006, by and among Xxxxxxx Laboratories, Inc., a Delaware
corporation ("Parent") and the undersigned Stockholder ("Stockholder") of
Connetics Corporation, a Delaware corporation (the "Company"). Terms not
otherwise defined herein shall have the respective meanings ascribed to them in
the Merger Agreement (as defined below). If the terms of this Agreement conflict
in any way with the provisions of the Merger Agreement, then the provisions of
the Merger Agreement shall control.
RECITALS
A. Stockholder has executed and delivered this Agreement in connection with
that certain Agreement and Plan of Merger, dated as of October 22, 2006, by and
among Parent, Merger Sub, and the Company (the "Merger Agreement"), pursuant to
which Merger Sub will merge with and into the Company (the "Merger") with the
Company to survive the Merger and become a wholly-owned subsidiary of Parent.
B. Stockholder acknowledges that Stockholder's entry into this Agreement is
an inducement and a condition to Parent and Merger Sub entering into the Merger
Agreement.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. RESTRICTION ON SHARES
1.1 Stockholder shall not, and shall not agree to, directly or indirectly,
transfer (except as may be specifically required by court order or by operation
of law), sell, exchange, tender, pledge, assign, or otherwise dispose of or take
any action to encumber any Shares (as such term is defined in Section 4.1), or
enter into any agreement or other arrangement relating thereto, at any time
prior to the Expiration Time (as defined below); provided, however, that
Stockholder may (a) transfer the Shares to any member of Stockholder's immediate
family, or to a trust for the benefit of Stockholder or any member of
Stockholder's immediate family for estate planning purposes, (b) transfer Shares
upon the death of Stockholder, and (c) transfer Shares in accordance with the
terms of any 10b5-1 plan of Stockholder in effect as of the date hereof,
provided, further, that any such transfer shall be permitted only if, as a
precondition to such transfer, the transferee agrees in writing to be bound by
all of the terms of this Agreement, other than transfers permitted pursuant to
clause (c) which shall not require satisfaction of such precondition. As used
herein, the term "Expiration Time" shall mean the earlier of (i) such date and
time as the Merger shall become effective in accordance with the terms and
provisions of the Merger Agreement, and (ii) the termination of the Merger
Agreement in accordance with its terms.
1.2 Except pursuant to the terms of this Agreement Stockholder shall not,
and shall not agree to, prior to the Expiration Time, directly or indirectly,
grant any proxies or powers of attorney with respect to any of the Shares,
deposit any of the Shares into a voting trust, or enter into a voting agreement
with respect to any of the Shares.
1.3 Stockholder shall not, prior to the Expiration Time, knowingly take any
action that would (a) make any representation or warranty contained herein
untrue or incorrect or (b) reasonably be expected to have the effect of
impairing the ability of Stockholder to perform his or her obligations under
this Agreement; provided, however, that nothing contained in this Agreement
shall be construed to prohibit Stockholder as a director or officer of the
Company from exercising his or her fiduciary duties to stockholders under
applicable Legal Requirements or taking on behalf of the Company any of the
actions permitted to be taken by the Company under the Merger Agreement.
1.4 Any shares of Company Common Stock that Stockholder purchases or with
respect to which Stockholder otherwise acquires beneficial ownership (for
avoidance of doubt, as used herein, the term "beneficial ownership" and similar
terms do not include Company Options, but include any shares of Company Common
Stock issued upon the exercise of Company Options) after the date of this
Agreement and prior to the Expiration Time, including by reason of any stock
split, stock dividend, reverse stock split, reclassification, recapitalization
or other similar transaction (collectively, the "New Shares") shall be subject
to the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
SECTION 2. VOTING AGREEMENT
Prior to the Expiration Time, at every meeting of the stockholders of the
Company called with respect to either of the following, and at every adjournment
thereof, and on every action or approval by written resolution or consent of the
stockholders of the Company with respect to any of the following, Stockholder
shall vote the Shares in respect of which Stockholder is entitled to vote at any
such meeting or in connection with any such written consent (a) in favor of
adoption of the Merger Agreement and approval of the terms thereof, the Merger,
and the Contemplated Transactions, and (b) against any Acquisition Proposal.
SECTION 3. PROXY
Concurrently with the execution and delivery of this Agreement, Stockholder
shall deliver to Parent a duly executed proxy in the form attached hereto as
Exhibit A (the "Proxy") with respect to each and every meeting of stockholders
of the Company or action or approval by written resolution or consent of
stockholders of the Company prior to the Expiration Time covering the total
number of Shares in respect of which Stockholder is entitled to vote at any such
meeting or in connection with any such written consent related to the subject
matter of Section 2. Upon the execution of this Agreement by Stockholder, (i)
Stockholder hereby revokes any and all prior proxies (other than the Proxy)
given by Stockholder with respect to the subject matter contemplated by the
Proxy and Parent hereby consents to the revocation of any and all such prior
proxies given by Stockholder to Parent with respect to such subject matter and
(ii) Stockholder shall not grant any subsequent proxies with respect to such
subject matter until after the Expiration Time.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows, which
representations and warranties are accurate in all respects as of the date of
this Agreement, will be accurate in all
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respects at all times through the Expiration Time and will be accurate in all
respects as of the Effective Time as if made at that time:
4.1 As of the date hereof, Stockholder is the beneficial owner of, and has
good and marketable title to, that number of shares of the Company Common Stock
set forth on the signature page hereto (all such shares beneficially owned by
Stockholder on the date hereof, collectively, the "Shares"). The Shares
constitute Stockholder's entire interest in all the outstanding shares of
Company Common Stock. No person not a signatory to this Agreement (or such
signatory's spouse for purposes of applicable community property laws) has a
beneficial interest in or a right to acquire or vote any of the Shares. The
Stockholder has all requisite power to vote the Shares on all matters submitted
to the holders of shares of Company Common Stock. The Stockholder owns the
shares free and clear of any limitations on voting rights that would conflict
with this Agreement.
4.2 Stockholder has all requisite power and authority to enter into this
Agreement and to perform its obligations under this Agreement. This Agreement
has been duly executed and delivered by Stockholder and constitutes a valid and
binding obligation of Stockholder, enforceable against Stockholder in accordance
with its terms, subject only to the effect, if any, of (a) applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium and similar laws
affecting creditors' rights and remedies generally and (b) general principles of
equity.
4.3 The execution and delivery of this Agreement by Stockholder do not, and
Stockholder's performance of its obligations under this Agreement will not: (a)
conflict with or violate any law, statute, rule, regulation, order, decree or
judgment applicable to Stockholder or by which Stockholder or any of the Shares
is bound; (b) result in any breach of or constitute a default (with notice or
lapse of time, or both) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of any
Encumbrance on, any of the Shares pursuant to any Contract to which Stockholder
is a party or by which Stockholder or any of the Shares is bound or affected; or
(c) require the consent, approval, authorization, or permit of, or filing with
or notification to, any Governmental Authority or any other Person.
SECTION 5. DISSENTER'S RIGHTS
Stockholder hereby irrevocably waives any rights of appraisal or rights to
dissent from the Merger and agrees not to exercise or participate in any rights
of appraisal or any dissenters' rights that Stockholder may have (whether under
applicable law or otherwise) or could potentially have or acquire in connection
with the Merger.
SECTION 6. MISCELLANEOUS PROVISIONS
6.1 This Agreement shall automatically terminate and be of no further force
and effect as of the Expiration Time.
6.2 This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto.
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6.3 No failure on the part of any party to exercise any power, right,
privilege or remedy under this Agreement, and no delay on the part of any party
in exercising any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of such power, right, privilege or remedy; and no single or
partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or
remedy.
6.4 No failure on the part of any party to exercise any power, right,
privilege or remedy under this Agreement, and no delay on the part of any party
in exercising any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of such power, right, privilege or remedy; and no single or
partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or
remedy.
6.5 None of the representations and warranties contained in this Agreement
shall survive the Merger.
6.6 This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, among or between any
of the parties with respect to the subject matter hereof. This Agreement may be
executed in several counterparts, each of which shall be deemed an original and
all of which shall constitute one and the same instrument. The exchange of a
fully executed Agreement (in counterparts or otherwise) by facsimile or by
electronic delivery in .pdf format shall be sufficient to bind the parties to
the terms and conditions of this Agreement.
6.7 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 laws thereof. In any action
between any of the parties arising out of or relating to this Agreement: (a)
each of the parties irrevocably and unconditionally consents and submits to the
exclusive jurisdiction and venue of the Chancery Court of the State of Delaware;
and (b) each of the parties irrevocably waives the right to trial by jury.
6.8 The parties hereto agree that, in the event any provision of this
Agreement is not performed in accordance with the terms hereof, the parties
shall be entitled to seek specific performance of the terms hereof, in addition
to any other remedy at law or in equity.
6.9 In any action at law or suit in equity to enforce this Agreement or the
rights of any of the parties hereunder, the prevailing party in such action or
suit shall be entitled to receive a reasonable sum for its attorneys' fees and
all other reasonable costs and expenses incurred in such action or suit.
6.10 This Agreement shall be binding upon, and shall be enforceable by and
inure solely to the benefit of, the parties hereto and their respective
successors and assigns; provided, however, that neither this Agreement nor any
party's rights or obligations hereunder may be assigned or delegated by such
party without the prior written consent of the other parties, and any attempted
assignment or delegation of this Agreement or any of such rights or
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obligations by any party without the prior written consent of the other parties
shall be void and of no effect. Nothing in this Agreement, express or implied,
is intended to or shall confer upon any Person (other than the parties hereto)
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
6.11 All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given or
made as follows: (a) if sent by registered or certified mail in the United
States return receipt requested, upon receipt; (b) if sent designated for
overnight delivery by nationally recognized overnight air courier (such as UPS
or Federal Express), two business days after mailing; (c) if sent by facsimile
transmission before 5:00 p.m., when transmitted and receipt is confirmed; (d) if
sent by facsimile transmission after 5:00 p.m. and receipt is confirmed, on the
following business day; and (e) if otherwise actually personally delivered, when
delivered, provided that such notices, requests, demands and other
communications are delivered to the address set forth below, or to such other
address as any party shall provide by like notice to the other parties to this
Agreement:
if to Parent:
Xxxxxxx Laboratories, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Chief Executive Officer
General Counsel
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
if to the Stockholder:
c/o Connetics Corporation
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attn: Chief Executive Officer
General Counsel
Fax: (000) 000-0000
with copies (which shall not constitute notice) to:
Fenwick & West LLP
000 Xxxxxxxxxx Xx.
0
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000
6.12 Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions of this Agreement or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If a final judgment of a court of
competent jurisdiction declares that any term or provision of this Agreement is
invalid or unenforceable, the parties hereto agree that the court making such
determination shall have the power to limit such term or provision, to delete
specific words or phrases or to replace such term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be valid and enforceable as so modified. In the event such court does not
exercise the power granted to it in the prior sentence, the parties hereto agree
to replace such invalid or unenforceable term or provision with a valid and
enforceable term or provision that will achieve, to the extent possible, the
economic, business and other purposes of such invalid or unenforceable term or
provision.
6.13 For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine gender
shall include the feminine and neuter genders; the feminine gender shall include
the masculine and neuter genders; and the neuter gender shall include masculine
and feminine genders. The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Agreement. As used
in this Agreement, the words "include" and "including," and variations thereof,
shall not be deemed to be terms of limitation, but rather shall be deemed to be
followed by the words "without limitation." Except as otherwise indicated, all
references in this Agreement to "Sections" are intended to refer to Sections of
this Agreement. The bold-faced headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
XXXXXXX LABORATORIES, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
[STOCKHOLDER]
__________________________________
Shares: ____________________
EXHIBIT A
IRREVOCABLE PROXY
TO VOTE STOCK OF
CONNETICS CORPORATION
The undersigned Stockholder ("Stockholder") of Connetics Corporation, a
Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent
permitted by the Delaware General Corporation Law) appoints the members of the
Board of Directors of Xxxxxxx Laboratories, Inc., a Delaware corporation
("Parent"), and each of them, or any other designee of Parent, 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 fullest extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now are or
hereafter may be beneficially owned (for avoidance of doubt, as used herein, the
term "beneficial ownership" and similar terms do not include options to purchase
shares of Company Common Stock, but includes any shares of Company Common Stock
issued upon the exercise of Company Options) by the undersigned, and any and all
other shares or securities of the Company issued or issuable in respect thereof
on or after the date hereof (collectively, the "Shares") in accordance with the
terms of this Irrevocable Proxy. The Shares beneficially owned by the
undersigned Stockholder of the Company as of the date of this Irrevocable Proxy
are listed on the final page of this Irrevocable Proxy. Upon the undersigned's
execution of this Irrevocable Proxy, any and all prior proxies (other than this
Irrevocable Proxy) given by the undersigned with respect to the subject matter
contemplated by Section 2 of the Voting Agreement (as defined below) or with
respect to the proposed Merger (as defined below) are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to such
subject matter until after the Expiration Time (as defined below).
This Irrevocable Proxy is irrevocable (to the fullest extent provided in
the Delaware General Corporation Law), is coupled with an interest, including,
but not limited to, that certain Voting Agreement dated as of even date herewith
by and between Parent and the undersigned (the "Voting Agreement"), and is
granted in consideration of Parent entering into that certain Agreement and Plan
of Merger, dated as of October 22, 2006, by and among Parent, Merger Sub (as
such term is defined in the Merger Agreement), and the Company (the "Merger
Agreement"), pursuant to which Merger Sub will merge with and into the Company
(the "Merger") with the Company to survive the Merger and become a wholly-owned
subsidiary of Parent. This proxy shall automatically terminate and be of no
further force or effect upon the "Expiration Time," which term shall have the
meaning given to such term in the Voting Agreement.
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
Time, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents pursuant to the Delaware General Corporation Law), at every
annual, special or adjourned meeting of the stockholders of the Company and in
every written consent in lieu of such meeting as follows: (a) in favor of
adoption of the Merger Agreement and approval of the terms thereof, the Merger,
and the Contemplated Transactions, and (b) against any Acquisition Proposal.
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided above. The undersigned Stockholder
may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
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This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable. This Irrevocable Proxy may not be amended or otherwise modified
without the prior written consent of Parent. This Irrevocable Proxy shall
terminate, and be of no further force and effect, automatically upon the
Expiration Time.
[STOCKHOLDER]
__________________________________
Shares: ____________________
