FORM OF VOTING AGREEMENT FOR HOLDERS OF COMPANY COMMON STOCK
Exhibit 10.1
FORM OF VOTING AGREEMENT
FOR HOLDERS OF COMPANY COMMON STOCK
FOR HOLDERS OF COMPANY COMMON STOCK
THIS VOTING AGREEMENT (“Agreement”), dated as of December 18, 2009, is made by and
among Myriad Pharmaceuticals, Inc., a Delaware corporation (“Parent”), Javelin
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and the undersigned holder
(“Stockholder”) of shares of capital stock of the Company (the “Shares”).
WHEREAS, Parent, MPI Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent (“Merger Sub”), and the Company have entered into an Agreement and Plan of Merger,
dated of even date herewith (as such agreement may be subsequently amended or modified, the
“Merger Agreement”), providing for the merger of Merger Sub with and into the Company (the
“Merger”);
WHEREAS, Stockholder beneficially owns and has sole voting power (or shares such power with
Stockholder’s spouse) with respect to the number of Shares, and holds stock options or other rights
to acquire the number of Shares, indicated opposite Stockholder’s name on Schedule 1
attached hereto;
WHEREAS, as an inducement to, and a condition to the willingness of, Parent and Merger Sub to
enter into the Merger Agreement, and in consideration of the substantial expenses incurred and to
be incurred by them in connection therewith, Stockholder has agreed to enter into and perform this
Agreement; and
WHEREAS, all capitalized terms used in this Agreement without definition herein shall have the
meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of, and as a condition to, Parent and Merger Sub entering
into the Merger Agreement and proceeding with the transactions contemplated thereby, and in
consideration of the expenses incurred and to be incurred by them in connection therewith,
Stockholder, Parent and the Company agree as follows:
1. Agreement to Vote Shares. Stockholder agrees that, prior to the Expiration Date
(as defined in Section 2 below), at any meeting of the stockholders of the Company or any
adjournment or postponement thereof, or in connection with any written consent of the stockholders
of the Company, with respect to the Merger, the Merger Agreement or any Company Acquisition
Proposal, Stockholder shall:
(a) appear at such meeting or otherwise cause the Shares and any New Shares (as defined in
Section 3 below) to be counted as present thereat for purposes of calculating a quorum;
(b) from and after the date hereof until the Expiration Date, vote (or cause to be voted) or
deliver a written consent (or cause a written consent to be delivered) covering all of the Shares
and any New Shares that Stockholder shall be entitled to so vote: (i) in favor of adoption and
approval of the Merger Agreement and all other transactions contemplated by the Merger Agreement
and any matter necessary for consummation of the Merger as to which stockholders of the Company are
called upon to vote in favor of or consent to and (ii) against any
Company Acquisition Proposal. Stockholder shall not take or commit or agree to take any
action inconsistent with the foregoing.
2. Expiration Date. As used in this Agreement, the term “Expiration Date”
shall mean the earlier to occur of (a) the Merger Effective Time, (b) such date and time as the
Merger Agreement shall be terminated pursuant to Article X thereof or otherwise, or (c) upon mutual
written agreement of each of the parties to terminate this Agreement. This Agreement shall
automatically terminate upon the Expiration Date. Upon termination or expiration of this Agreement,
no party shall have any further obligations or liabilities under this Agreement; provided,
however, such termination or expiration shall not relieve any party from liability for any
willful breach of this Agreement or acts of bad faith prior to termination hereof.
3. Additional Purchases. Stockholder agrees that any shares of capital stock or other
equity securities of the Company that Stockholder purchases or with respect to which Stockholder
otherwise acquires sole voting power (or shared voting power with Stockholder’s spouse) after the
execution of this Agreement and prior to the record date for determining the Company stockholders
entitled to vote with respect to the Merger, whether by the exercise of any stock options or
otherwise (“New Shares”), shall be subject to the terms and conditions of this Agreement to
the same extent as if they constituted the Shares.
4. Agreement to Retain Shares. From and after the date hereof until the Expiration
Date, Stockholder shall not, directly or indirectly, knowingly take any action that would make any
representation or warranty of Stockholder contained herein untrue or incorrect in any material
respect or have the effect of preventing or disabling Stockholder from performing Stockholder’s
obligations under this Agreement. Notwithstanding the foregoing, Stockholder may make transfers of
Shares (a) by will or by operation of law or other transfers for estate-planning purposes, in which
case this Agreement shall bind all transferees, and (b) as Parent may otherwise agree in writing in
its sole discretion. Notwithstanding anything contained herein to the contrary, nothing in this
Agreement shall prohibit or prevent the cashless exercise of any Company Stock Options by
Stockholder.
5. Representations and Warranties of Stockholder. Stockholder hereby represents and
warrants to Parent and the Company as follows:
(a) Stockholder has the full power and authority to execute and deliver this Agreement and to
perform Stockholder’s obligations hereunder;
(b) this Agreement has been duly executed and delivered by or on behalf of Stockholder and, to
Stockholder’s knowledge and assuming this Agreement constitutes a valid and binding agreement of
Parent and the Company, constitutes a valid and binding agreement with respect to Stockholder,
enforceable against Stockholder in accordance with its terms, except as enforcement may be limited
by general principles of equity whether applied in a court of law or a court of equity and by
bankruptcy, insolvency and similar laws affecting creditors’ rights and remedies generally;
(c) except as set forth on Schedule 1, Stockholder beneficially owns the number of
Shares indicated opposite Stockholder’s name on Schedule 1, and will own any New
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Shares, free and clear of any liens, claims, security interests, pledges or other encumbrances
or restrictions of any kind or nature whatsoever (“Liens”) except for any restrictions
under applicable securities laws, and has sole, and otherwise unrestricted, voting power with
respect to such Shares or New Shares and none of the Shares or New Shares is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting of the Shares or
the New Shares, except as contemplated by this Agreement;
(d) to the knowledge of Stockholder, the execution and delivery of this Agreement by
Stockholder does not, and the performance by Stockholder of his or her obligations hereunder and
the compliance by Stockholder with any provisions hereof will not, violate or conflict with, result
in a material breach of or constitute a material default (or an event that with notice or lapse of
time or both would become a material default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of any Liens on any Shares or
New Shares pursuant to, any agreement, instrument, note, bond, mortgage, contract, lease, license,
permit or other obligation or any order, arbitration award, judgment or decree to which Stockholder
is a party or by which Stockholder is bound, or any law, statute, rule or regulation to which
Stockholder is subject or, in the event that Stockholder is a corporation, partnership, trust or
other entity, any bylaw or other organizational document of Stockholder; and
(e) to the knowledge of Stockholder, the execution and delivery of this Agreement by
Stockholder does not, and the performance of this Agreement by Stockholder does not and will not,
require any consent, approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority by Stockholder except for applicable requirements, if any, of
the Exchange Act, and except where the failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, would not prevent or delay the performance by
Stockholder of his or her obligations under this Agreement in any material respect.
6. Irrevocable Proxy. Subject to the last sentence of this Section 6, by execution of
this Agreement, Stockholder does hereby appoint Xxxxxx X. Xxxxxx, Ph.D., President and Chief
Executive Officer of Parent, Xxxxxx X. Xxxxxxx, Chief Financial Officer of Parent, and Xxxxxx
Xxxxx, Secretary of Parent, and each of them, with full power of substitution and resubstitution,
as Stockholder’s true and lawful attorney and proxy, to the fullest extent of the undersigned’s
rights with respect to the Shares, to vote, if Stockholder is unable to perform his or her
obligations under this Agreement, each of the Shares and New Shares solely with respect to the
matters set forth in Section 1 hereof. Stockholder intends this proxy to be irrevocable and
coupled with an interest hereunder until the Expiration Date in accordance with the provisions of
Section 212 of the DGCL and hereby revokes any proxy previously granted by Stockholder with respect
to the Shares and represents that none of such previously granted proxies are irrevocable.
Notwithstanding anything contained herein to the contrary, this irrevocable proxy shall
automatically terminate upon the Expiration Date of this Agreement.
7. No Solicitation. From and after the date hereof until the Expiration Date,
Stockholder, insofar as Stockholder is acting in his, her or its capacity as a stockholder of the
Company, shall not (a) initiate, solicit, seek or knowingly encourage or support any inquiries,
proposals or offers that constitute or may reasonably be expected to lead to, a Company
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Acquisition Proposal, (b) engage or participate in, or knowingly facilitate, any discussions
or negotiations regarding, or furnish any nonpublic information to any Person in connection with,
any inquiries, proposals or offers that constitute, or may reasonably be expected to lead to, a
Company Acquisition Proposal, (c) enter into any letter of intent, agreement in principle or other
similar type of agreement relating to a Company Acquisition Proposal, or enter into any agreement
or agreement in principle requiring the Company to abandon, terminate or fail to consummate the
transactions contemplated by the Merger Agreement, (d) initiate a stockholders’ vote or action by
consent of the Company’s stockholders with respect to a Company Acquisition Proposal, (e) except by
reason of this Agreement, become a member of a “group” (within the meaning of Section 13(d) of the
Exchange Act) with respect to any voting securities of the Company that takes any action in support
of a Company Acquisition Proposal or (f) propose or agree to do any of the foregoing. In the event
that Stockholder is a corporation, partnership, trust or other entity, it shall not permit any of
its Subsidiaries or Affiliates to, nor shall it authorize any officer, director or representative
of Stockholder, or any of its Subsidiaries or Affiliates to, undertake any of the actions
contemplated by this Section 7. Nothing in this Section 7 shall restrict any actions permitted
under the Merger Agreement by Stockholder in his or her capacity as an officer or director of the
Company.
8. Fiduciary Responsibilities. Stockholder makes no agreement or understanding herein
in his or her capacity as a director or officer of the Company. Without limiting the generality of
the foregoing, Stockholder (or a designee of Stockholder) signs solely in his or her capacity as
the record and beneficial owner of Stockholder’s Shares and nothing herein shall limit or affect
any actions taken by Stockholder (or a designee of Stockholder) in his or her capacity as an
officer or director of the Company in exercising his or her or the Company’s or the Company’s Board
of Directors’ rights in connection with the Merger Agreement or otherwise and such actions shall
not be deemed to be a breach of this Agreement.
9. Specific Enforcement. The parties hereto agree that irreparable damage would occur
in the event any provision of this Agreement was not performed in accordance with the terms hereof
or was otherwise breached. It is accordingly agreed that the parties shall be entitled to seek
specific relief hereunder, including, without limitation, an injunction or injunctions to prevent
and enjoin breaches of the provisions of this Agreement and to enforce specifically the terms and
provisions hereof, in any state or federal court in any competent jurisdiction, in addition to any
other remedy to which they may be entitled at law or in equity. Any requirements for the securing
or posting of any bond with respect to any such remedy are hereby waived.
10. Further Assurances. Stockholder shall, 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 or the Company may reasonably request for the purpose of effectively carrying
out the transactions contemplated by this Agreement and the Merger Agreement.
11. Disclosure. Stockholder hereby agrees that Parent and the Company may publish and
disclose in the Registration Statement (including all documents and schedules filed with the SEC),
the Joint Proxy Statement, any Current Report on Form 8-K required to be filed in connection with
the Merger, any filing with any regulatory authority in connection with the Merger and any related
documents filed with such regulatory authority and as otherwise required
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by Law, Stockholder’s identity and ownership of Shares and New Shares and the nature of
Stockholder’s commitments, arrangements and understandings under this Agreement and may further
file this Agreement as an exhibit to the Registration Statement or prospectus or in any other
filing made by Parent or the Company as required by Law or the terms of the Merger Agreement,
including with the SEC or other regulatory authority, relating to the Merger, all subject to prior
review and an opportunity to comment by Parent’s and the Company’s counsel.
12. Notice. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or sent by nationally-recognized overnight courier
(providing proof of delivery) or by electronic mail (providing a copy to be delivered by mail) or
by facsimile transmission (providing confirmation of transmission) to Parent or the Company, as the
case may be, in accordance with Section 12.02 of the Merger Agreement and to Stockholder at its
address set forth on Schedule 1 attached hereto (or at such other address for a party as
shall be specified by like notice).
13. Severability. If any term or other provision of this Agreement is determined to
be 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 so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. 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.
14. Binding Effect and Assignment. All of the covenants and agreements contained in
this Agreement shall be binding upon, and inure to the benefit of, the respective parties and their
permitted successors, assigns, heirs, executors, administrators and other legal representatives, as
the case may be. Except as otherwise set forth in this Section 14, this Agreement may not be
assigned by any party hereto without the prior written consent of the other parties hereto.
15. No Third Party Beneficiaries. This Agreement is not intended, and shall not be
deemed, to confer any rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns, to create any agreement of employment with any person
or to otherwise create any third-party beneficiary hereto.
16. No Waivers. No waivers of any breach of this Agreement extended by Parent or the
Company to Stockholder shall be construed as a waiver of any rights or remedies of Parent or the
Company, as applicable, with respect to any other stockholder of the Company who has executed an
agreement substantially in the form of this Agreement, with respect to Shares held or subsequently
held by such stockholder or with respect to any subsequent breach of Stockholder or any other such
stockholder of the Company. No waiver of any provisions hereof by any party shall be deemed a
waiver of any other provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
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17. Governing Law; Jurisdiction and Venue. THIS AGREEMENT IS MADE UNDER, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT
TO PRINCIPLES OF CONFLICTS OF LAW. In any action between or among any of the parties, whether
arising out of this Agreement or otherwise, (a) each of the parties irrevocably and unconditionally
consents and submits to the exclusive jurisdiction and venue of the state and federal courts
located in New Castle County, Delaware; (b) if any such action is commended in a state court, then,
subject to applicable law, no party shall object to the removal of such action to any federal court
located in New Castle County, Delaware; (c) each of the parties irrevocably waives the right to
trial by jury; and (d) each of the parties irrevocably consents to service of process by first
class certified mail, return receipt requested, postage prepared, to the address at which such
party is to receive notice in accordance with Section 12.
18. Waiver of Jury Trial. The parties hereto hereby waive any right to trial by jury
with respect to any action or proceeding related to or arising out of this Agreement, any document
executed in connection herewith and the matters contemplated hereby and thereby.
19. No Agreement Until Executed. Irrespective of negotiations among the parties or
the exchanging of drafts of this Agreement, this Agreement shall not constitute or be deemed to
evidence a contract, agreement, arrangement or understanding between the parties hereto unless and
until (a) the Board of Directors of the Company has approved, for purposes of any applicable
anti-takeover laws and regulations and any applicable provision of the Company’s Certificate of
Incorporation, the transactions contemplated by the Merger Agreement, (b) the Merger Agreement is
executed by all parties thereto, and (c) this Agreement is executed by all parties hereto.
20. Entire Agreement; Amendment. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter hereof and contains
the entire agreement among the parties with respect to the subject matter hereof. This Agreement
may not be amended, supplemented or modified, and no provisions hereof may be modified or waived,
except by an instrument in writing signed by each party hereto.
21. Effect of Headings. The section headings herein are for convenience only and
shall not affect the construction or interpretation of this Agreement.
22. Counterparts. This Agreement may be executed and delivered, including by
facsimile transmission, in one or more counterparts, each of which will be deemed an original but
all of which together shall constitute one and the same instrument.
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EXECUTED as of the date first above written.
| STOCKHOLDER | ||||||
| Name: | ||||||
| MYRIAD PHARMACEUTICALS, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| JAVELIN PHARMACEUTICALS, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Schedule 1
Stockholder/Address:
Shares/Options/Rights to Acquire Shares held by Stockholder:
Schedule of Signatories
| • | Xxxxxx X. Xxxxxxxx |
| • | Xxxxxx X. Xxxxx |
| • | Xxxx X. Xxxxxxxxxx |
| • | Xxxxx X. Xxxxxxx, III |
| • | Xxxx X. Xxxxxxxxxxx |
| • | Xxxxx Xxxxxx |
| • | Xxxxxxx X. Xxxxxx |
| • | Xxxxxxx X. Xxxxxxxx |
| • | Xxxxxx X. Xxxx |
