EXHIBIT 2.2
EXECUTION COPY
STOCKHOLDER AGREEMENT dated as of November
12, 2002, (this "Agreement"), among XXXXXXX &
XXXXXXX, a New Jersey corporation ("Parent"), and
the individuals and other parties listed on Schedule
A attached hereto (each, a "Stockholder" and,
collectively, the "Stockholders").
WHEREAS Parent, Pivot Merger Sub, Inc., a Delaware corporation and a
wholly owned Subsidiary of Parent ("Sub"), and OraPharma, Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or supplemented,
the "Merger Agreement") providing for the merger of Sub with and into the
Company (the "Merger"), upon the terms and subject to the conditions set forth
in the Merger Agreement;
WHEREAS each Stockholder owns the number of shares of common stock, par
value $.001 per share, of the Company, (the "Company Common Stock"), set forth
opposite his, her or its name on Schedule A attached hereto (such shares of
Company Common Stock, together with any other shares of capital stock of the
Company acquired by such Stockholder after the date hereof and during the term
of this Agreement (including through the exercise of any stock options, warrants
or similar instruments), being collectively referred to herein as the "Subject
Shares" of such Stockholder);
WHEREAS the Board of Directors of the Company has unanimously approved
the terms of this Agreement; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that each Stockholder enter into this Agreement.
NOW, THEREFORE, to induce Parent to enter into, and in consideration of
its entering into, the Merger Agreement, and in consideration of the mutual
promises and the representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, agree as follows:
1. Representations and Warranties of Each Stockholder. Each Stockholder
hereby, severally and not jointly, represents and warrants to Parent as of the
date hereof in respect of himself, herself or itself as follows:
(a) Authority, Execution and Delivery; Enforceability. The Stockholder
has all requisite power and
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authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes the legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms. Except for the expiration or termination of the waiting periods
under the HSR Act and informational filings with the SEC, the execution and
delivery by the Stockholder of this Agreement do not, and the consummation of
the transactions contemplated hereby and compliance with the terms hereof will
not, conflict with, or result in any violation of, or default (with or without
notice or lapse of time or both) under, or give rise to a right of termination,
cancelation or acceleration of any obligation or to loss of a material benefit
under, or result in the creation of any Lien upon any of the Subject Shares of
the Stockholder under, (i) any trust agreement, loan or credit agreement, bond,
note, mortgage, indenture, lease or other contract, agreement, obligation,
commitment, arrangement, understanding or instrument, (collectively,
"Contracts") to which the Stockholder is a party or by which any of the Subject
Shares of the Stockholder is bound or (ii) subject to the filings and other
matters referred to in the next sentence, any provision of any judgment, order
or decree (collectively, "Judgment") or any statute, law, ordinance, rule or
regulation (collectively, "Applicable Law") applicable to the Subject Shares of
the Stockholder. No consent, approval, order or authorization (collectively,
"Consent") of, action by or in respect of, or registration, declaration or
filing with, any Governmental Entity is required to be obtained or made by or
with respect to the Stockholder in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, other than (i) compliance with and filings under the HSR
Act, if applicable to the Stockholder's receipt in the Merger of the Merger
Consideration, (ii) such reports under Sections 13(d) and 16 of the Exchange Act
as may be required in connection with this Agreement and the transactions
contemplated hereby and (iii) where the failure to obtain such Consent or
action, or to make such registration, declaration or filing, could not
reasonably be expected to prevent, materially impede or delay the performance by
the Stockholder of its obligations under this Agreement. If the Stockholder is a
natural person and is married, and the Stockholder's Subject Shares constitute
community property or otherwise need spousal or other approval for this
Agreement to be legal, valid and binding, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Stockholder's spouse, enforceable against such spouse in
accordance with its terms. No trust of which
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such Stockholder is a trustee requires the consent of any beneficiary to the
execution and delivery of this Agreement or to the consummation of the
transactions contemplated hereby.
(b) The Subject Shares. The Stockholder is the record and beneficial
owner of, or is trustee of a trust that is the record holder of, and whose
beneficiaries are the beneficial owners of, and has good and marketable title
to, the Subject Shares set forth opposite his, her or its name on Schedule A
attached hereto, free and clear of any Liens. The Stockholder does not own, of
record or beneficially, any shares of capital stock of the Company other than
the Subject Shares set forth opposite his, her or its name on Schedule A
attached hereto. The Stockholder has the sole right to vote such Subject Shares
(except to the extent that such Subject Shares are issuable upon the exercise of
options or Warrants that have not been exercised by such Stockholder), and,
except as contemplated by this Agreement, none of such Subject Shares is subject
to any voting trust or other agreement, arrangement or restriction with respect
to the voting of such Subject Shares.
2. Representations and Warranties of Parent. Parent hereby represents and
warrants to each Stockholder that Parent (i) is duly incorporated, validly
existing and in good standing under the laws of the State of New Jersey, and
(ii) has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. This Agreement
has been duly authorized. The execution and delivery by Parent of this Agreement
and consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Parent. Parent has
duly executed and delivered this Agreement, and, assuming this Agreement
constitutes the legal, valid and binding obligation of each of the other parties
hereto, this Agreement constitutes a valid and binding obligation of Parent
enforceable against Parent in accordance with its terms. The execution and
delivery by Parent of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of, or default (with or without notice
or lapse of time or both) under, or give rise to a right of termination,
cancelation or acceleration of any obligation or to loss of a material benefit
under, (i) the Certificate of Incorporation or By-laws of Parent, (ii) any
Contract to which Parent is a party or by which any properties or assets of
Parent are bound in any way that would prevent the consummation by Parent of the
transactions contemplated by this Agreement or (iii) subject to the
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filings and other matters referred to in the next sentence, any provision of any
Judgment or Applicable Law applicable to Parent or the properties or assets of
Parent, in any way that would prevent the consummation by Parent of the
transactions contemplated by this Agreement. No Consent of, action by or in
respect of, or registration, declaration or filing with, any Governmental Entity
is required to be obtained or made by or with respect to Parent in connection
with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, other than such reports
under Sections 13(d) and 16 of the Exchange Act as may be required in connection
with this Agreement and the transactions contemplated hereby.
3. Covenants of each Stockholder. Each Stockholder, acting as a
stockholder of the Company (or warrantholder of the Company with respect to
Section 3(i)) and not as an officer or director of the Company, severally and
not jointly, agrees as follows:
(a) Without in any way limiting each Stockholder's right to vote its
Subject Shares in its sole discretion with respect to any other matters, at any
meeting of stockholders of the Company called to vote upon the Merger and the
Merger Agreement or at any adjournment thereof or in any other circumstances
upon which a vote, consent or other approval (including by written consent) with
respect to the Merger and the Merger Agreement is sought, the Stockholder shall,
including by executing a written consent if requested by Parent, vote (or cause
to be voted) the Subject Shares in favor of the Merger, the adoption by the
Company of the Merger Agreement and the approval of the terms thereof and each
of the other transactions contemplated by the Merger Agreement.
(b) At any meeting of stockholders of the Company or at any adjournment
thereof or in any other circumstances upon which the Stockholder's vote, consent
or other approval is sought, the Stockholder shall vote (or cause to be voted)
the Subject Shares against (i) any merger agreement or merger (other than the
Merger Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by the Company or any other Takeover Proposal or (ii) any
amendment of the Company's Fourth Amended and Restated Certificate of
Incorporation or By-laws or other proposal or transaction involving the Company,
which amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify, or result in a breach of any covenant,
representation or warranty or
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any other obligation of the Company under or with respect to, the Merger, the
Merger Agreement or any of the other transactions contemplated by the Merger
Agreement or change in any manner the voting rights of the Company Common Stock.
The Stockholder shall not commit or agree to take any action inconsistent with
the foregoing.
(c) The Stockholder shall not (i) sell, transfer, pledge, assign or
otherwise dispose of (including by gift) (collectively, "Transfer"), consent to
any Transfer of, or enter into any Contract, option or other arrangement
(including any profit sharing arrangement) with respect to the Transfer of, any
Subject Shares (or any interest therein) to any person other than pursuant to
the terms of the Merger or (ii) enter into any voting arrangement, whether by
proxy, voting agreement or otherwise, with respect to any Subject Shares other
than pursuant to this Agreement and shall not commit or agree to take any of the
foregoing actions. The Stockholder shall not, nor shall such Stockholder permit
any entity under such Stockholder's control to, deposit any Subject Shares in a
voting trust.
(d) The Stockholder shall not, nor shall it authorize or permit any
employees or Affiliates of, or any investment banker, financial advisor,
attorney, accountant or other advisor, agent or representative of, the
Stockholder (collectively, the "Stockholder Representatives") to, directly or
indirectly through any person or entity, (i) solicit, initiate or encourage, or
take any other action designed to, or which would reasonably be expected to,
facilitate, any inquiries or the making of any proposal that constitutes or
would reasonably be expected to lead to a Takeover Proposal or (ii) enter into,
continue or otherwise participate in any discussions or negotiations regarding,
or furnish to any person any information with respect to any Takeover Proposal.
Without limiting the foregoing, it is agreed that any violation of the
restrictions set forth in the preceding sentence by any Stockholder
Representative of such Stockholder, whether or not such person is purporting to
act on behalf of such Stockholder, shall be a breach of this Section 3(d) by
such Stockholder. The Stockholder shall promptly advise Parent orally and in
writing of any Takeover Proposal or inquiry made to the Stockholder with respect
to any Takeover Proposal.
(e) Until the earlier of (i) the consummation of the Merger and (ii)
termination of the Merger Agreement pursuant to its terms, the Stockholder shall
use all reasonable efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, and to assist and
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cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by the Merger
Agreement. The Stockholder shall not issue any press release or make any other
public statement with respect to this Agreement, the Merger Agreement, the
Merger or any other transaction contemplated by this Agreement or the Merger
Agreement without the prior written consent of Parent, except as may be required
by Applicable Law.
(f) The Stockholder, and any beneficiary of a revocable trust for which
such Stockholder serves as trustee, shall not take any action to revoke or
terminate such trust or take any other action which would restrict, limit or
frustrate in any way the transactions contemplated by this Agreement. Each such
beneficiary hereby acknowledges and agrees to be bound by the terms of this
Agreement applicable to it.
(g) The Stockholder hereby consents to and approves the actions taken by
the Board of Directors of the Company in approving the Merger Agreement and this
Agreement, the Merger and the other transactions contemplated by the Merger
Agreement. The Stockholder hereby waives, and agrees not to exercise or assert,
any appraisal or similar rights under Section 262 of the DGCL or other
Applicable Law in connection with the Merger.
(h) (i) In the event that the Termination Fee shall become
unconditionally payable pursuant to the terms of the Merger Agreement, each
Stockholder shall pay to Parent an amount equal to fifty percent (50%) of all
profit (determined in accordance with Section 3(h)(ii)) of such Stockholder,
solely in his, her or its capacity as a stockholder of the Company, from the
consummation of any Takeover Proposal (such amount to be payable immediately
following the consummation of such Takeover Proposal).
(ii) For purposes of this Section 3(h), the profit of any Stockholder,
solely in his, her or its capacity as a stockholder of the Company, from the
consummation of any Takeover Proposal shall equal (A) the aggregate
consideration received by such Stockholder, solely in his, her or its capacity
as a stockholder of the Company, as a result of the consummation of such
Takeover Proposal, valuing any non-cash consideration (including any residual
interest in the Company) at its fair market value on the date of such
consummation plus (B) the fair market value, on the date of sale or other
disposition, of all Subject Shares of such Stockholder sold or otherwise
disposed of after the
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termination of the Merger Agreement and prior to the date of such consummation
less (C) the product of $7.41 and the number of Subject Shares owned by such
Stockholder, which amount is payable to such Stockholder pursuant to the Merger
Agreement, as in effect on the date hereof (the "Original Merger
Consideration").
(iii) In the event that (A) prior to the Effective Time, a Takeover
Proposal shall have been made to the Company or shall have been made directly to
the stockholders of the Company generally or shall have otherwise become
publicly known or any person shall have publicly announced an intention (whether
or not conditional) to make a Takeover Proposal and (B) the Effective Time shall
have occurred and Parent for any reason shall have increased the amount of the
Original Merger Consideration, each Stockholder shall pay to Parent on demand an
amount in cash equal to the product of (x) the number of Subject Shares of such
Stockholder and (y) 50% of the excess, if any, of (I) the per share cash
consideration or the per share fair market value of any non-cash consideration,
as the case may be, received by the Stockholder as a result of the consummation
of the Merger, pursuant to the Merger Agreement as in effect on the date of such
consummation, determined as of the Effective Time of the Merger, over (II) the
Original Merger Consideration.
(iv) For purposes of this Section 3(h), the fair market value of any
non-cash consideration consisting of:
(A) securities listed on a national securities exchange or
traded on The Nasdaq Stock Market shall be equal to the
average closing price per share of such security as
reported on such exchange or The Nasdaq Stock Market for
the five trading days immediately preceding the date of
determination; and
(B) consideration which is other than cash or securities of the
form specified in clause (A) of this Section 3(h)(iv) shall
be determined by a nationally recognized independent
investment banking firm mutually agreed upon by Parent and
the Stockholder owning the largest number of Subject Shares
as set forth on Schedule A attached hereto within 10
business days prior to the event requiring the selection of
such
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investment banking firm; provided, however, that if such
parties are unable to agree within two business days prior
to the date of such event as to the investment banking
firm, then such parties shall each select one investment
banking firm, and those firms shall select a third
investment banking firm, which third firm shall make such
determination; provided further, that the fees and expenses
of such investment banking firm shall be borne equally by
Parent, on the one hand, and the Stockholders, on the other
hand. The determination of the investment banking firm
shall be binding upon the parties.
(v) Any payments under this Section 3(h) shall be paid to Parent as
designated by it with the same kind of consideration received by each
Stockholder in the transaction giving rise to such payment obligation.
(i) As set forth on Schedule B attached hereto, each Stockholder who also
holds Warrants exercisable for Company Common Stock (as set forth opposite his,
her or its name on Schedule B attached hereto) hereby consents to the lump sum
cash payment as specified in Section 5.04(b) of the Merger Agreement and the
concurrent cancelation of such Warrants. The Stockholder does not own, of record
or beneficially, any Warrants exercisable for Company Common Stock other than
the Warrants set for opposite his, her or its name on Schedule B attached
hereto.
4. Grant of Irrevocable Proxy; Appointment of Attorney-in-Fact.
(a) Each Stockholder hereby irrevocably grants to, and appoints, Parent
and Xxxxxx X'Xxxx, Vice President, Business Development, Consumer and Personal
Care Group of Parent, Xxxxxxx X. Xxxxx, President, Personal Products Company,
Division of XxXxxx, PPC, Inc. and Xxxx X. Xxxxxx, Assistant General Counsel of
Parent, in their respective capacities as officers of Parent, and any individual
who shall hereafter succeed to any such office of Parent, and each of them
individually, and any individual designated in writing by any of them, as such
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of such Stockholder, to vote such Stockholder's
Subject Shares, or grant a consent or approval in respect of such Subject Shares
(i) in favor of adoption of the Merger Agreement and approval of the Merger
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and any other transactions contemplated by the Merger Agreement, (ii) against
any Takeover Proposal and (iii) against any amendment of the Company's Fourth
Amended and Restated Certificate of Incorporation or By-laws, or other proposal
or transaction (including any consent solicitation to remove or elect any
directors of the Company) involving the Company, which amendment or other
proposal or transaction would in any manner impede, frustrate, prevent or
nullify, or result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under or with respect to, the
Merger, the Merger Agreement or any of the other transactions contemplated by
the Merger Agreement or change in any manner the voting rights of the Company
Common Stock. The Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the Stockholder's execution
and delivery of this Agreement.
(b) Such Stockholder represents that any proxies heretofore given in
respect of such Stockholder's Subject Shares are not irrevocable, and that all
such proxies are hereby revoked.
(c) Such Stockholder hereby affirms that the irrevocable proxy set forth
in this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of the Stockholder under this Agreement. Such Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. Such Stockholder hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 212(e) of the DGCL. The irrevocable
proxy granted hereunder shall automatically terminate upon the termination of
this Agreement in accordance with Section 7.
5. Further Assurances. Each Stockholder will, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as Parent may reasonably request for
the purpose of effectively carrying out the transactions contemplated by this
Agreement.
6. Additional Matters. (a) Each Stockholder agrees that this Agreement
and the obligations hereunder shall attach to such Stockholder's Subject Shares
and shall be binding upon any person or entity to which legal or beneficial
ownership of such Subject Shares shall pass,
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whether by operation of law or otherwise, including such Stockholder's heirs,
guardians, administrators or successors, and that each certificate representing
such Subject Shares will be inscribed with a legend to such effect. In the event
of any stock split, stock dividend, merger, reorganization, recapitalization or
other change in the capital structure of the Company affecting the Company
Common Stock, or the acquisition of additional shares of Company Common Stock or
other voting securities of the Company by any Stockholder, the number of Subject
Shares listed in Schedule A beside the name of such Stockholder shall be
adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional shares of Company Common Stock or other voting
securities of the Company issued to or acquired by such Stockholder.
Notwithstanding any provision in this Agreement to the contrary, nothing herein
shall require or be deemed to require the exercise of, or give any person other
than the Stockholder the power to exercise, any option to purchase Company
Common Stock or any Warrants held at any time by such Stockholder, it being
understood that the foregoing shall in no way limit the provisions of Section
3(i) herein.
(b) Each Stockholder agrees that such Stockholder will tender to the
Company, within 10 business days after the date hereof (or, in the event Subject
Shares are acquired subsequent to the date hereof within 10 business days after
the date of such acquisition), any and all certificates representing such
Stockholder's Subject Shares in order that the Company may inscribe upon such
certificates the legend in accordance with Section 5.11 of the Merger Agreement.
(c) No person executing this Agreement who is or becomes during the term
hereof a director or officer of the Company makes (or shall be deemed to have
made) any agreement or understanding herein in his or her capacity as such a
director or officer of the Company. Each Stockholder signs solely in his, her or
its capacity as the record holder and beneficial owner of, or the trustee of a
trust whose beneficiaries are the beneficial owners of, such Stockholder's
Subject Shares and nothing herein shall limit or affect any actions taken by any
Stockholder or any employee or Affiliate of any Stockholder in his or her
capacity as an officer or director of Company to the extent specifically
permitted by the Merger Agreement.
7. Termination. This Agreement shall terminate, and the provisions hereof
shall be of no further force or effect, upon the earliest to occur of (i) the
Effective Time, (ii) the termination of the Merger Agreement or (iii)
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at the option of any Stockholder, the execution or granting of any amendment,
modification, change or waiver with respect to the Merger Agreement subsequent
to the date of this Agreement that results in any decrease in the price to be
paid per share for the shares of Company Common Stock, or any change in the form
of consideration to be used to purchase the shares of Company Common Stock that
results in a reduction of the amount of cash to be paid in respect thereof.
Notwithstanding the foregoing, (a) in the event that the Merger Agreement shall
have been terminated under circumstances where Parent is or may become entitled
to receive the Termination Fee, Section 3(h) shall survive the termination of
the Merger Agreement until the earlier to occur of (I) the 12-month anniversary
of the termination of the Merger Agreement in the event that the Termination Fee
does not become unconditionally payable before such date or (II) with respect to
any Stockholder, the date on which any amount payable by such Stockholder to
Parent pursuant to Section 3(h)(i) shall have been paid in full or (b) with
respect to any Stockholder, in the event that the Merger shall have been
consummated under circumstances where Parent is entitled to receive payment from
such Stockholder pursuant to Section 3(h)(iii), Section 3(h) shall survive the
consummation of the Merger until the date on which any amount payable by such
Stockholder to Parent shall have been paid in full. Nothing in this Section 7
shall relieve or otherwise limit the liability of any party for breach of this
Agreement.
8. General Provisions. (a) Amendments. This Agreement may not be amended
except by an instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or sent by overnight
courier (providing proof of delivery) to Parent in accordance with Section 8.02
of the Merger Agreement and to the Stockholders at their respective addresses
set forth on Schedule A attached hereto (or at such other address for a party as
shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Wherever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
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(d) Counterparts. This Agreement may be executed in one or more
counterparts (including by facsimile), all of which shall be considered one and
the same agreement. This Agreement shall become effective against Parent when
one or more counterparts have been signed by Parent and delivered to each
Stockholder. This Agreement shall become effective against any Stockholder when
one or more counterparts have been executed by such Stockholder and delivered to
Parent. Each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
any legal or equitable rights or remedies.
(f) GOVERNING LAW; CAPITALIZED TERMS. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE,
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW THEREOF. CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL
HAVE THE MEANINGS SET FORTH IN THE MERGER AGREEMENT.
(g) Voidability. If prior to the execution hereof, the Board of Directors
of the Company shall not have duly and validly authorized and approved by all
necessary corporate action, this Agreement, the Merger Agreement and the
transactions contemplated hereby and thereby, so that by the execution and
delivery hereof Parent or Sub would become, or could reasonably be expected to
become an "interested stockholder" with whom the Company would be prevented for
any period pursuant to Section 203 of the DGCL from engaging in any "business
combination" (as such terms are defined in Section 203 of the DGCL), then this
Agreement shall be void and unenforceable until such time as such authorization
and approval shall have been duly and validly obtained.
9. Specific Enforcement. The parties agree that irreparable damage would
occur and that the parties would not have any adequate remedy at law in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court
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located in the State of Delaware or in any state court in the State of Delaware,
this being in addition to any other remedy to which they are entitled at law or
in equity. In addition, each of the parties hereto (i) consents to submit itself
to the personal jurisdiction of any Federal court located in the State of
Delaware or of any state court located in the State of Delaware in the event any
dispute arises out of this Agreement or the transactions contemplated by this
Agreement, (ii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (iii)
agrees that it will not bring any action relating to this Agreement or the
transactions contemplated by this Agreement in any court other than a Federal
court located in the State of Delaware or a state court located in the State of
Delaware.
10. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any Stockholder, on the one hand,
without the prior written consent of Parent nor by Parent, on the other hand,
without the prior written consent of the Stockholders, and any assignment
without such consent shall be null and void, except that Parent may assign, in
its sole discretion, any or all of its rights, interests and obligations
hereunder to any direct or indirect wholly owned Subsidiary of Parent. 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
assigns.
11. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by Applicable Law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
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IN WITNESS WHEREOF, Parent has caused this Agreement to be
signed by its officer thereunto duly authorized and each Stockholder has signed
this Agreement, all as of the date first written above.
Xxxxxxx & Xxxxxxx
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Member, Executive Committee;
Worldwide Chairman, Consumer
& Personal Care Group
Domain Partners IV, L.P.
By: One Xxxxxx Square Associates IV,
L.L.C., its General Partner
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Member
XX XX Associates, L.P.
By: One Xxxxxx Square Associates IV,
L.L.C., its General Partner
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Member
Domain Associates, L.L.C.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Member
Xxxxxxx Healthcare II, L.P.
By FHM II, L.L.C., its General Partner
By Xxxxxxx Management L.L.C., its
Managing Member
By: /s/ Xxx Xxxxxxx
-----------------------------------------
Xxx Xxxxxxx, Member
TL Ventures III L.P.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
TL Ventures III Interfund L.P.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
TL Ventures III Offshore L.P.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
J. Xxxxxx Xxxxxx
/s/ J. Xxxxxx Xxxxxx
--------------------------------------------
Xxx X. Xxxxxx
/s/ Xxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
SCHEDULE A
NAME AND NUMBER OF SHARES
ADDRESS OF OF COMMON STOCK
STOCKHOLDER OWNED OF RECORD
----------- ----------------
Domain Partners (1)
One Xxxxxx Square 1,062,579
Xxxxxxxxx, XX 00000
Xxxxxxx Healthcare (2)
Two Union Square
000 Xxxxx Xxxxxx
Xxxxx 0000 1,110,909
Xxxxxxx, XX 00000
TL Ventures (3)
700 Building
000 Xxxxx Xxxx Xxxxx 000,000
Xxxxx, XX 00000-0000
Xxxxxxx X. Xxxxxxxxx 345,874
Xxxxx X. Xxxxxxx 44,056
J. Xxxxxx Xxxxxx 105,875
Xxx X. Xxxxxx 18,350
Xxxxxxx X. Xxxxxx 3,200
Total: 3,540,697
(1) Includes shares held by Domain Partners IV L.P. and XX XX Associates, L.P.
and Domain Associates, L.L.C.
(2) Includes shares held by Xxxxxxx Healthcare II, L.P., FHM II, L.L.C., Xxxxxxx
Management, L.L.C. and Xxxxxxx & Company, Inc.
(3) Includes shares held by TL Ventures III L.P., TL Ventures III Interfund L.P.
and TL Ventures III Offshore L.P.
SCHEDULE B
NUMBER OF SHARES
NUMBER OF OF COMMON STOCK
NAME OF STOCKHOLDER WARRANTS UNDERLYING THE WARRANTS
------------------- -------- -----------------------
Domain Partners IV L.P. 3,457 3,457
XX XX Associates, L.P. 83 83
Xxxxxxx Healthcare II, L.P. 4,425 4,425
TL Ventures III L.P. 8,907 8,907
TL Ventures III Interfund L.P. 290 290
TL Ventures III Offshore L.P. 1,864 1,864
