STOCKHOLDER AGREEMENT
Exhibit 2
This Stockholder Agreement (this “Agreement”) is made and entered into as of
January 12, 2009, by and between The Medicines Company, a Delaware corporation (“Parent”),
and the undersigned stockholder (“Stockholder”) of Targanta Therapeutics Corporation, a
Delaware corporation (the “Company”).
RECITALS
A. Concurrently with the execution and delivery hereof, Parent, Boxford Subsidiary
Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (“Purchaser”),
and the Company are entering into an Agreement and Plan of Merger of even date herewith (as it may
be amended or supplemented from time to time pursuant to the terms thereof, the “Merger
Agreement”), providing for, among other things, Purchaser to commence a tender offer (the
“Offer”) to acquire all of the outstanding shares of common stock, par value $0.0001 per
share, of the Company (“Company Common Stock”) followed by the subsequent merger of
Purchaser with and into the Company with the Company surviving the merger as a wholly owned
subsidiary of Parent (the “Merger” and, together with the Offer, the “Proposed
Transactions”), in each case, on the terms and subject to the conditions set forth in the
Merger Agreement.
B. Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
such number of shares of Company Common Stock indicated on the signature page of this Agreement.
C. Stockholder desires to express its support for the Merger Agreement and the transactions
contemplated thereby, including the Offer and the Merger, by executing this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration given to each party hereto, the receipt of which is hereby acknowledged, intending to
be legally bound, the parties hereto agree as follows:
1. Certain Definitions.
(a) Terms used but not otherwise defined herein shall have the meanings ascribed thereto in
the Merger Agreement. For all purposes of and under this Agreement, the following terms shall have
the following respective meanings:
“Constructive Sale” means with respect to any security, a short sale with
respect to such security, entering into or acquiring an offsetting derivative contract with
respect to such security, entering into or acquiring a futures or forward contract to
deliver such security or entering into any other hedging or other derivative transaction
that has the effect of either directly or indirectly materially changing the economic
benefits or risks of ownership.
“Shares” means (i) all shares of Company Common Stock owned, beneficially or of
record, by Stockholder as of the date hereof, and (ii) all additional shares of Company
Common Stock or other capital stock of the Company acquired by Stockholder, beneficially or
of record, during the period commencing with the execution and delivery of this Agreement
and expiring on the Expiration Date (as such term is defined in Section 10 below).
“Transfer” means, with respect to any security, the direct or indirect
assignment, sale, transfer, tender, exchange, pledge, hypothecation, or the grant, creation
or suffrage of a lien, security interest or encumbrance in or upon, or the gift, placement
in trust, or the Constructive Sale or other disposition of such security (including
transfers by testamentary or intestate succession, by merger or otherwise by operation of
law) or any right, title or interest therein (including, but not limited to, any right or
power to vote to which the holder thereof may be entitled, whether such right or power is
granted by proxy or otherwise), or the record or beneficial ownership thereof, the offer to
make such a sale, transfer, Constructive Sale or other disposition, and each agreement,
arrangement or understanding, whether or not in writing, to effect any of the foregoing.
2. Transfer and Voting Restrictions.
(a) At all times during the period commencing with the execution and delivery of this
Agreement and expiring on the Expiration Date, Stockholder shall not, except as contemplated by the
Offer or the Merger Agreement, Transfer any of the Shares, or discuss, negotiate, make an offer or
enter into an agreement, commitment or other arrangement with respect thereto.
(b) The Stockholder hereby irrevocably instructs the Company to implement the voting and
transfer restrictions with respect to the Shares set forth in Section 7.10 of the Merger Agreement
(a true and correct copy of which Section 7.10 is attached hereto as Schedule A). The
Stockholder understands and agrees that the the Company will instruct the Company’s transfer agent
to put stop transfer orders in effect on all of the Shares to implement such restrictions.
(c) Except as otherwise permitted by this Agreement or by order of a court of competent
jurisdiction, Stockholder will not commit any act that could restrict or affect Stockholder’s legal
power, authority and right to tender into the Offer or vote all of the Shares then owned of record
or beneficially by Stockholder or otherwise prevent or disable Stockholder from performing any of
Stockholder’s obligations under this Agreement. Without limiting the generality of the foregoing,
except for this Agreement and as otherwise permitted by this Agreement, Stockholder will not enter
into any voting agreement with any person or entity with respect to any of the Shares, grant any
person or entity any proxy (revocable or irrevocable) or power of attorney with respect to any of
the Shares, deposit any of the Shares in a voting trust or otherwise enter into any agreement or
arrangement with any person or entity limiting or affecting Stockholder’s legal power, authority or
right to vote the Shares in favor of the adoption of the Merger Agreement and the approval of the
Merger.
3. Agreement to Tender Shares.
(a) Stockholder hereby agrees that promptly after the commencement of the Offer, but in any
event no later than 5:00 p.m. New York time on the third business day before the initially
scheduled expiration of the Offer, Stockholder shall tender into the Offer all of the Shares.
Stockholder shall not withdraw any of the Shares previously tendered into the Offer.
(b) If Stockholder is the beneficial owner, but not the record holder, of the Shares,
Stockholder agrees to take all actions necessary to cause the record holder and any nominees to
tender into the Offer all of the Shares in accordance with Section 3(a).
4. Agreement to Vote Shares.
(a) Prior to the Expiration Date, at every meeting of the stockholders of the Company called,
and at every adjournment or postponement thereof, and on every action or approval by
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written consent of the stockholders of the Company, Stockholder (in Stockholder’s capacity as
such) shall appear at the meeting or otherwise cause the Shares to be present thereat for purposes
of establishing a quorum and, to the extent not voted by the persons appointed as proxies pursuant
to this Agreement, vote (i) in favor of the adoption of the Merger Agreement and the approval of
the Merger, (ii) against the approval or adoption of any proposal made in opposition to, or in
competition with, the Proposed Transactions, (iii) against any Acquisition Proposal (other than the
Proposed Transactions) and (iv) against any other action that is intended, or could reasonably be
expected, to result in a breach of any covenant, representation or warranty or any other obligation
or agreement of the Company under the Merger Agreement or of Stockholder under this Agreement or
otherwise impede, interfere with, delay, postpone, discourage or adversely affect the consummation
of the Proposed Transactions.
(b) If Stockholder is the beneficial owner, but not the record holder, of the Shares,
Stockholder agrees to take all actions necessary to cause the record holder and any nominees to
vote all of the Shares in accordance with Section 4(a).
5. Grant of Irrevocable Proxy.
(a) Stockholder hereby irrevocably (to the fullest extent permitted by law) grants to, and
appoints, Parent and each of its executive officers and any of them, in their capacities as
officers of Parent (the “Grantees”), as Stockholder’s proxy and attorney-in-fact (with full
power of substitution and re-substitution), for and in the name, place and stead of Stockholder, to
vote the Shares, to instruct nominees or record holders to vote the Shares, or grant a consent or
approval in respect of such Shares in accordance with Section 4 hereof and, in the discretion of
the Grantees with respect to any proposed adjournments or postponements of any meeting of
Stockholders at which any of the matters described in Section 4 hereof is to be considered.
(b) Stockholder represents that any proxies heretofore given in respect of the Shares that may
still be in effect are not irrevocable, and such proxies are hereby revoked.
(c) Stockholder hereby affirms that the irrevocable proxy set forth in this Section 5 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 Stockholder under this Agreement. Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. 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 of the General
Corporation Law of the State of Delaware.
(d) The Grantees may not exercise this irrevocable proxy on any other matter except as
provided above. Stockholder may vote the Shares on all other matters.
(e) Parent may terminate this proxy with respect to Stockholder at any time at its sole
election by written notice provided to Stockholder.
6. No Solicitation. Stockholder, in its capacity as a Stockholder, shall not directly
or indirectly take any action, or permit any of its Affiliates to take any action, that would be
inconsistent with Section 7.1 of the Merger Agreement as if Stockholder and its Affiliates were
“Representatives” thereunder.
7. Action in Stockholder Capacity Only. Stockholder makes no agreement or
understanding herein as a director or officer of the Company. Stockholder signs solely in
Stockholder’s capacity as a record holder and beneficial owner, as applicable, of the Shares, and
nothing herein shall limit or affect
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any actions taken in Stockholder’s (or any designee of Stockholder’s) capacity as an officer
or director of the Company.
8. Representations and Warranties of Stockholder.
(a) Stockholder hereby represents and warrants to Parent as follows: (i) Stockholder is the
beneficial or record owner of the shares of Company Common Stock indicated on the signature page of
this Agreement free and clear of all security interests, liens, claims, pledges, agreements,
limitations in Stockholder’s voting rights, restrictions, options, commitments, charges or other
encumbrances of any nature; (ii) Stockholder does not beneficially own any securities of the
Company other than the shares of Company Common Stock and rights to purchase shares of Company
Common Stock set forth on the signature page of this Agreement; (iii) Stockholder has all requisite
power and authority to enter into this Agreement and perform its obligations hereunder and to grant
the irrevocable proxy as set forth in Section 5; and (iv) this Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and binding agreement of Stockholder
enforceable against Stockholder in accordance with its terms. Stockholder agrees to notify Parent
promptly of any additional shares of Company Common Stock or other capital stock of the Company of
which Stockholder becomes the beneficial owner after the date of this Agreement.
(b) As of the date hereof and for so long as this Agreement remains in effect (including as of
the date of the Company Meeting, if any, which, for purposes of this Agreement, includes any
adjournment or postponement thereof), except for this Agreement or as otherwise permitted by this
Agreement, Stockholder has full legal power, authority and right to vote all of the Shares then
owned of record or beneficially by Stockholder, in favor of the adoption of the Merger Agreement
and the approval of the Merger without the consent or approval of, or any other action on the part
of, any other person or entity (including, without limitation, any governmental entity). Without
limiting the generality of the foregoing, Stockholder has not entered into any voting agreement
(other than this Agreement) with any person with respect to any of the Shares, granted any person
any proxy (revocable or irrevocable) or power of attorney with respect to any of the Shares,
deposited any of the Shares in a voting trust or entered into any arrangement or agreement with any
person limiting or affecting Stockholder’s legal power, authority or right to vote the Shares on
any matter.
(c) The execution and delivery of this Agreement and the performance by Stockholder of
Stockholder’s agreements and obligations hereunder will not result in any breach or violation of or
be in conflict with or constitute (with or without notice or lapse of time, or both) a default (or
give rise to a right of termination, cancellation or acceleration of any obligation or loss of any
material benefit) under, require a consent or waiver under, constitute a change in control under,
require the payment of a penalty under or result in the imposition of Liens on the Shares or
Stockholder’s other assets under, any of the terms, conditions or provisions of any agreement,
judgment, injunction, order, decree, law, regulation or arrangement to which Stockholder is a party
or by which Stockholder (or any of Stockholder’s assets) is bound, except for any such breach,
violation, conflict or default which, individually or in the aggregate, would not impair or
adversely affect Stockholder’s ability to perform Stockholder’s obligations under this Agreement or
render inaccurate any of the representations made by Stockholder herein.
(d) No consent, approval, license, permit, order or authorization of, or registration,
declaration, notice or filing with, any Governmental Entity is required by or with respect to
Stockholder in connection with the execution and delivery of this Agreement by Stockholder or
performance by Stockholder of its obligations hereunder.
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(e) Except as disclosed pursuant to the Merger Agreement, no agent, broker, investment banker,
financial advisor, finder, or other firm or person is or shall be entitled, as a result of any
action, agreement, arrangement or commitment made by or on behalf of Stockholder, to any broker’s,
finder’s, financial advisor’s or other similar fee or commission in connection with this Agreement.
(f) Stockholder understands and acknowledges that Parent is entering into the Merger Agreement
in reliance upon Stockholder’s execution and delivery of this Agreement and the representations and
warranties of Stockholder contained herein.
9. Confidentiality. Stockholder recognizes that successful consummation of the
transactions contemplated by the Merger Agreement may be dependent upon confidentiality with
respect to the matters referred to herein. In this connection, pending public disclosure thereof,
and so that Parent may rely on the safe harbor provisions of Rule 100(b)(2)(ii) of Regulation FD,
Stockholder hereby agrees not to disclose or discuss such matters with anyone not a party to this
Agreement (other than its counsel and advisors, if any) without the prior written consent of
Parent, except for disclosures Stockholder’s counsel advises are necessary to fulfill any legal
requirement, in which case Stockholder shall give notice of such disclosure to Parent as promptly
as practicable so as to enable Parent to seek a protective order from a court of competent
jurisdiction with respect thereto.
10. Termination. This Agreement shall terminate and be of no further force or effect
whatsoever as of the earlier of (a) such date and time as the Merger Agreement shall have been
validly terminated pursuant to the terms of Article VIII thereof or (b) the Acceptance Time (the
“Expiration Date”); provided, however, that (1) Sections 11(a), (b), (c), (d), (e), (f),
(i), (k), (l), (m) and (n) shall survive any termination of this Agreement and (2) termination of
this Agreement shall not relieve any party from liability for any breach of its obligations
hereunder committed prior to such termination.
11. Miscellaneous Provisions.
(a) Amendments, Modifications and Waivers. No amendment, modification or waiver in
respect of this Agreement shall be effective against any party unless it shall be in writing duly
executed and delivered by Parent and Stockholder.
(b) Entire Agreement. This Agreement constitutes the entire agreement among the
parties hereto and supersedes any prior understandings, agreements or representations by or among
the parties hereto, or any of them, written or oral, with respect to the subject matter hereof.
(c) Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Delaware without giving effect to any choice or conflict of
law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause
the application of laws of any jurisdictions other than those of the State of Delaware.
(d) Consent to Jurisdiction; Venue. Each of the parties hereto (i) consents to submit
itself to the exclusive personal jurisdiction of the Delaware Court of Chancery, New Castle County,
or if that court does not have jurisdiction, a federal court sitting in the State of Delaware in
any action or proceeding arising out of or relating to this Agreement, (ii) agrees that all claims
in respect of such action or proceeding may be heard and determined in any such court, (iii) 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 (iv) agrees not to bring any action or proceeding arising out of
or relating to this Agreement or any of the transaction contemplated by this Agreement in any other
court. Each of the parties hereto waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety or other security that might be
required of any other party with respect thereto. Any party
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hereto may make service on another party by sending or delivering a copy of the process to the
party to be served at the address and in the manner provided for the giving of notices in Section
11(l). Nothing in this Section 11(d), however, shall affect the right of any party to serve legal
process in any other manner permitted by law.
(e) WAIVER OF JURY TRIAL. EACH OF PARENT AND STOCKHOLDER HEREBY IRREVOCABLY WAIVES
ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT OR
STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
(f) Assignment and Successors. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by
operation of law or otherwise by any of the parties hereto without the prior written consent of the
other parties, and any such assignment without such prior written consent shall be null and void,
except that Parent may assign this Agreement to any direct or indirect wholly owned Subsidiary of
Parent without the consent of the other parties hereto, provided that Parent shall remain liable
for all of its obligations under this Agreement. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their
respective successors and permitted assigns.
(g) No Third Party Rights. This Agreement is not intended, and shall not be deemed,
to confer any rights or remedies upon any other person other than the parties hereto and their
respective successors and permitted assigns or to otherwise create any third-party beneficiary
hereto.
(h) Cooperation. For so long as this Agreement is in effect, Stockholder agrees not
to take any action which would make any of Stockholder’s representations or warranties herein
untrue or incorrect in any material respect or knowingly take any action that would have the effect
of preventing or disabling it from performing its obligations under this Agreement. Stockholder
agrees to cooperate fully with Parent and to execute and deliver such further documents,
certificates, agreements and instruments and to take such other actions as may be reasonably
requested by Parent to evidence or reflect the transactions contemplated by this Agreement and to
carry out the intent and purpose of this Agreement. Stockholder hereby agrees that Parent and the
Company may publish and disclose such Stockholder’s identity and ownership of Shares and the nature
of such Stockholder’s commitments, arrangements and understandings under this Agreement and may
further file this Agreement as an Exhibit to any filing made by Parent or the Company with the SEC
relating to the Proposed Transactions.
(i) Severability. 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 hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction. 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 closest to expressing the intention of the invalid or unenforceable term or
provision, and this 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 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.
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(j) Time of Essence. With regard to all dates and time periods set forth or referred
to in this Agreement, time is of the essence.
(k) Remedies. Except as otherwise provided herein, any and all remedies herein
expressly conferred upon a party will be deemed cumulative with and not exclusive of any other
remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any
one remedy will not preclude the exercise of any other remedy. The parties hereto acknowledge that
Parent 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 in this Agreement.
Accordingly, Parent 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, this being in
addition to any other remedy to which they are entitled at law or in equity.
(l) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed duly delivered (i) four business days after being sent by registered or certified
mail, return receipt requested, postage prepaid, or (ii) one business day after being sent for next
business day delivery, fees prepaid, via a reputable nationwide overnight courier service, in each
case to the intended recipient as follows: (i) if to Parent, to the address, e-mail address or
facsimile provided in Section 10.2 of the Merger Agreement, including to the persons designated
therein to receive copies; and (ii) if to Stockholder, to Stockholder’s address, e-mail address or
facsimile shown below Stockholder’s signature on the last page hereof. Any party to this Agreement
may give any notice or other communication hereunder using any other means (including personal
delivery, messenger service, telecopy, telex, ordinary mail or electronic mail), but no such notice
or other communication shall be deemed to have been duly given unless and until it actually is
received by the party for whom it is intended. Any party to this Agreement may change the address
to which notices and other communications hereunder are to be delivered by giving the other parties
to this Agreement notice in the manner herein set forth.
(m) Counterparts and Signature. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which together shall be
considered one and the same agreement and shall become effective when counterparts have been signed
by each of the parties hereto and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. This Agreement may be executed and delivered by
facsimile transmission.
(n) Headings. The headings contained in this Agreement are for are for the
convenience of reference only and shall not affect in any way the meaning or interpretation of this
Agreement.
(o) Legal Representation. This Agreement was negotiated by the parties with the
benefit of legal representation and any rule of construction or interpretation otherwise requiring
this Agreement to be construed or interpreted against any party shall not apply to any construction
or interpretation thereof.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as of the
date first above written.
THE MEDICINES COMPANY:
|
STOCKHOLDER: | |||
By:
|
By: | |||
Its:
|
Its: | |||
| Address: | ||||
| Telephone: (___) ___-___ | ||||
| Facsimile: (___) ___-___ | ||||
| E-Mail Address: | ||||
| Shares Beneficially Owned by Stockholder: | ||||
| shares of Company Common Stock | ||||
| Options to acquire Company Common Stock | ||||
| Warrants to acquire Company Stock |
[Signature Page to Stockholder Agreement]
Schedule A
