EXHIBIT 10.5
SHAREHOLDER AGREEMENT
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SHAREHOLDER AGREEMENT (this "Agreement"), dated as of July 26, 1999 by
and between HealthCare Ventures IV, L.P. ("Shareholder"), and Xxxxxxx
Pharmaceutical Corporation, a New Jersey corporation ("Xxxxxxx").
WHEREAS, concurrently herewith, Ruby Acquisition Sub Inc., Xxxxxxx and
Shire Pharmaceuticals Group plc, a public limited company organized under the
laws of England and Wales ("Shire"), are entering into an Agreement and Plan of
Merger of even date herewith (such Agreement in the form attached hereto as
Exhibit A as it may be subsequently amended or modified (other than a reduction
in the Merger Consideration (as defined therein)) being the "Merger Agreement"),
pursuant to which a newly formed, wholly owned subsidiary of Sapphire will merge
with and into Xxxxxxx (the "Merger"); and
WHEREAS, Shareholder owns, as of the date hereof, 1,617,528 ordinary
shares, nominal value five xxxxx per share (the "Ordinary Shares"), of Shire
(the "Existing Shares", together with any Ordinary Shares acquired after the
date hereof and prior to the termination hereof, hereinafter collectively
referred to as the "Shares"); and
WHEREAS, Xxxxxxx has entered into the Merger Agreement in reliance on
Shareholder's representations, warranties, covenants and agreements set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, and
intending to be legally bound hereby, it is agreed as follows:
1. Voting Agreement. Shareholder agrees to vote (or cause to be voted) and
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otherwise act (including pursuant to written consent) with respect to all of the
Shares, for the approval and the adoption of the Merger Agreement, all
agreements related to the Merger and any actions required to be approved by
shareholders related thereto, and against any proposal or transaction which
could prevent or delay the consummation of the transactions contemplated by this
Agreement or the Merger Agreement, at any meeting or meetings of the
shareholders of Shire, and at any adjournment, postponement or continuation
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thereof, at which the Merger Agreement and other related agreements (or any
amended version or versions thereof), or such other actions are submitted for
the consideration and vote of the Shareholders of Shire. The foregoing shall
remain in effect with respect to the Shares, until the termination of this
Agreement. Shareholder agrees to cause the Shares to be represented, in person
or by proxy, at any meeting or meetings of the shareholders to which this
Section 1 applies, and to vote the Shares in accordance with the terms hereof.
2. Representations and Warranties of Shareholder. Shareholder represents and
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warrants to Xxxxxxx as follows:
2.1 Ownership of Shares. On the date hereof the Existing Shares are
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all of the Ordinary Shares currently beneficially owned by Shareholder. On the
Closing Date, the Shares will constitute all of the Ordinary shares of owned
beneficially by Shareholder. Shareholder has no rights to acquire any
additional Ordinary Shares.
2.2 Authority; Binding Agreement. Shareholder has the full legal
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right, power and authority to enter into and perform all of its obligations
under this Agreement. The execution and delivery of this Agreement by
Shareholder will not violate any other agreement to which Shareholder is a party
including, without limitation, any voting agreement, shareholders agreement or
voting trust. This Agreement has been duly executed and delivered by
Shareholder and constitutes a legal, valid and binding agreement of Shareholder,
enforceable in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium and similar
laws, now or hereafter in effect affecting creditors' rights and remedies
generally or general principles of equity. Neither the execution and delivery
of this Agreement nor the consummation by Shareholder of the transactions
contemplated hereby will (i) violate, or require any consent, approval or notice
under, any provision of any judgment, order, decree, statute, law, rule or
regulation applicable to Shareholder or the Shares, (ii) constitute a violation
of, conflict with or constitute a default under, any material contract,
commitment, agreement, understanding, arrangement or other restriction of any
kind to which Shareholder is a party or by which Shareholder is bound.
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2.3 Reliance on Agreement. Shareholder understands and acknowledges
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that Xxxxxxx is entering into the Merger Agreement in reliance upon
Shareholder's execution and delivery of this Agreement.
3. Certain Covenants of Shareholder. Except in accordance with the provisions
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of this Agreement, Shareholder agrees with, and covenants to, Xxxxxxx as
follows:
3.1 Actions Inconsistent with this Agreement. Shareholder shall not
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(i) transfer (which term shall include, without limitation, for the purposes of
this Agreement, any sale, gift, pledge, assignment, encumbrance or other
disposition) or consent to any transfer of, any or all of the Shares or any
interest therein, except pursuant to the Merger, (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of any
or all such Shares or any interest therein, (iii) grant any proxy, power-of-
attorney or other authorizations in or with respect to such Shares or (iv)
deposit such Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the Shares.
3.2 Solicitation. Until consummation of the Merger, Shareholder
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shall not, and shall direct their investment bankers, attorneys or other
advisers or representatives not to, directly or indirectly, (i) solicit or
initiate (including by way of furnishing or disclosing non-public information)
any inquires or the making of any proposal with respect to a Shire Acquisition
Transaction (as defined in the Merger Agreement) or (ii) negotiate, explore or
otherwise engage in discussions with any person (other than Xxxxxxx and its
representatives) with respect to any Shire Acquisition Transaction, or which may
reasonably be expected to lead to a proposal for a Shire Acquisition Transaction
or enter into any agreement, arrangement or understanding with respect to any
such Shire Acquisition Transaction or which would require it to abandon,
terminate or fail to consummate the Merger or any other transaction contemplated
by this Agreement; provided, however, that Shareholder may, in response to an
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unsolicited written proposal from a third party regarding a Shire Superior
Proposal (as defined in the Merger Agreement), furnish information to, negotiate
or otherwise engage in discussions with such third party, if the Board of
Directors of Shire determines in good faith, after consultation with its
financial advisors and based upon advice of outside
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counsel that such action is required for the Board of Directors to comply with
its fiduciary duties under applicable law.
4. Termination. This Agreement shall terminate on the earlier of (i) the
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termination of the Merger Agreement in accordance with its terms, (ii) if the
Merger Agreement is amended to increase the Merger Consideration (as defined in
the Merger Agreement) per share, (iii) the Effective Time or (iv) December 31,
1999.
5. Miscellaneous.
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5.1 Survival of Representations and Warranties. All representations,
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warranties, covenants and agreements made by Shareholder in this Agreement shall
survive the date hereof and any investigation at any time made by or on behalf
of any party.
5.2 Notices. All notices, requests, claims, demands and other
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communications under this Agreement shall be in writing and shall be delivered
personally or by next-day courier or telecopied with confirmation of receipt, to
the parties at the addresses specified below (or at such other address for a
party as shall be specified by like notice; provided that notices of a change of
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address shall be effective only upon receipt thereof). Any such notice shall be
effective upon receipt, if personally delivered or telecopied or one day after
delivery to a courier for next-day delivery.
If to Xxxxxxx:
Meridian Center II
0 Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: General Counsel
with copies to:
Xxxxxxxx Xxxxxxxx, Esq.
Milbank, Tweed Hadley & XxXxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
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Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Shareholder:
HealthCare Ventures IV, L.P.
Twin Towers at Metro Park
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
5.3 Entire Agreement. This Agreement, together with the documents
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expressly referred to herein, constitute the entire agreement and supersede all
other prior agreements and understandings, both written and oral, between the
parties, with respect to the subject matter contained herein.
5.4 Amendments. This Agreement may not be modified, amended, altered
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or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
5.5 Assignment. This Agreement shall be binding upon and inure to
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the benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties.
5.6 Public Announcements. Each of Shire and Shareholder agrees that
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it will not issue any press release or otherwise make any public statement with
respect to this Agreement, the Merger Agreement or the transactions contemplated
hereby or thereby without the prior consent of the other party, which consent
shall not be unreasonably withheld or delayed.
5.7 Governing Law. This Agreement, and all matters relating hereto,
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shall be governed by, and construed in accordance with the laws of the State of
New York without giving effect to the principles of conflicts of laws thereof.
5.8 Injunctive Relief; Jurisdiction. Shareholder agrees that
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irreparable damage would occur and that Xxxxxxx would not have any adequate
remedy at law in the event that any of the provisions of this Agreement were not
performed in
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accordance with their specific terms or were otherwise breached. It is
accordingly agreed that Xxxxxxx shall be entitled to an injunction or
injunctions to prevent breaches by Shareholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of New York, Borough of Manhattan, or in New
York state court located in the Borough of Manhattan, 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 such party to the personal
jurisdiction of any Federal court located in the State of New York, Borough of
Manhattan or in New York State Court located in the Borough of Manhattan in the
event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (ii) agrees that such party will not attempt to deny or
defeat such party to the personal jurisdiction by motion or other request for
leave from any such court and (iii) agrees that such party will not bring any
action relating to this Agreement or any of the transactions contemplated hereby
in any court other than a Federal or state court sitting in the State of New
York, located in the Borough of Manhattan.
5.9 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same document.
5.10 Descriptive Headings. The descriptive headings used herein are
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inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
5.11 Severability. Any term or provision of this Agreement which is
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invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
5.12 Further Assurances. Each party hereto shall execute and deliver
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such additional documents as may be
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necessary or desirable to consummate the transactions contemplated by this
Agreement.
5.13 Third-Party Beneficiaries. Nothing in this Agreement, expressed
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or implied, shall be construed to give any person other than the parties hereto
any legal or equitable right, remedy or claim under or by reason of this
Agreement or any provision contained herein.
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IN WITNESS WHEREOF, Xxxxxxx and Shareholder have caused this Agreement
to be executed by their duly authorized officers, as of the date and year first
above written.
XXXXXXX PHARMACEUTICAL CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: President and Chief
Executive Officer
HEALTHCARE VENTURES IV, L.P.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: General Partner
