VOTING AGREEMENT
VOTING AGREEMENT, dated as of April 29, 1998 (this "Agreement"), among Elan
Corporation, plc, a public limited company organized under the laws of Ireland
("Purchaser"), and the individuals whose names and addresses are set forth on
the signature pages hereto (collectively, the "Stockholders", and each,
individually, a "Stockholder").
WHEREAS, Purchaser and its wholly-owned subsidiary, Ganesh Acquisition
Corp., a Delaware corporation (the "Subsidiary"), have entered into an Agreement
and Plan of Merger, dated as of the date hereof (the "Merger Agreement"), with
Neurex Corporation, a Delaware corporation (the "Company"), which Merger
Agreement provides, among other things, that the Subsidiary will merge with and
into the Company pursuant to the merger contemplated by the Merger Agreement
(the "Merger"); and
WHEREAS, as of the date hereof, the Stockholders own (both beneficially and
of record) the number of shares of Common Stock, par value $.01 per share, of
the Company ("Company Common Stock") set forth opposite their respective names
on the signature pages hereto; and
WHEREAS, each of the Stockholders has agreed to enter into this Agreement
governing the voting and disposition of the shares of Company Common Stock now
or hereafter beneficially owned by such Stockholder (the "Shares").
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. Voting of Shares. Each Stockholder shall, until the Termination Date (as
hereinafter defined), cause the Shares owned by such Stockholder to be voted, at
the Special Meeting (as defined in the Merger Agreement) or any other meeting of
the stockholders of the Company, however called, and in any action by written
consent of the stockholders of the Company, in favor of the Merger Agreement and
the transactions contemplated thereby, subject to such Stockholder's obligation
to faithfully discharge his duty as a director of the Company; provided that the
Merger Agreement shall not have been amended to adversely affect the
Stockholders in any material respect, without the consent of the Stockholders.
For the purposes of this Agreement, "Termination Date" shall mean the earliest
of (i) the
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termination of the Merger Agreement in accordance with its terms, (ii) the
Effective Time (as defined in the Merger Agreement), (iii) the termination of
this Agreement by the written agreement of the parties hereto or pursuant to the
terms of Section 7 of this Agreement.
2. Irrevocable Proxy. Each Stockholder hereby irrevocably appoints
Purchaser, subject to his obligation to faithfully discharge his duty as a
director of the Company, until the Termination Date, as such Stockholder's
attorney and proxy, with full power of substitution, to vote in such manner as
Purchaser or its substitute shall, in its sole discretion, deem proper and
otherwise act (by written consent or otherwise) with respect to the Shares (and
all other securities issued to the Stockholder in respect of the Shares) which
each Stockholder is entitled to vote at the Special Meeting or any other meeting
of stockholders of the Company, however called, and in any action by written
consent of the stockholders of the Company, in accordance with the provisions of
Section 1 of this Agreement. This proxy and power of attorney is irrevocable and
coupled with an interest in favor of Purchaser. Each Stockholder hereby revokes
all other proxies and powers of attorney with respect to the Shares (and all
other securities issued to the Stockholder in respect of the Shares) which it
may have heretofore appointed or granted, and no subsequent proxy or power of
attorney shall be given or written consent executed (and if given or executed,
shall not be effective) by the Stockholder with respect thereto.
3. No Disposition or Encumbrance of Shares. Each Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement, the
Stockholder shall not, and shall not offer or agree to, sell, transfer, tender,
assign, hypothecate or otherwise dispose of, or create or permit to exist any
security interest, lien, claim, pledge, option, right of first refusal,
agreement, limitation on the Stockholder's voting rights, charge or other
encumbrance of any nature whatsoever with respect to the Shares.
4. No Solicitation of Transactions. Except with respect to activities as a
director of the Company, each Stockholder shall not, directly or indirectly,
through any agent or representative or otherwise, (i) solicit, initiate,
facilitate or encourage (including by way of furnishing or disclosing non-public
information) any inquiries or the making of any proposal with respect to any
merger, consolidation or other business combination involving the Company or the
acquisition of any kind of a material portion of the assets or capital stock of
the Company (an "Acquisition Transaction") or negotiate, ex-
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plore or otherwise communicate in any way with any third party with respect to
any Acquisition Transaction or enter into any agreement, arrangement or
understanding requiring it to abandon, terminate or fail to perform as
contemplated by this Agreement. Each Stockholder immediately shall cease and
cause to be terminated all existing discussions or negotiations of the
Stockholder and its agents or other representatives with any Person conducted
heretofore with respect to any of the foregoing. Each Stockholder shall
immediately notify Purchaser if any proposal or offer, or any inquiry or contact
with any Person with respect to an Acquisition Transaction, is made and shall,
in any such notice to Purchaser, indicate in reasonable detail the identity of
the Person making such proposal, offer, inquiry or contact and the terms and
conditions of such proposal, offer, inquiry or contact. The provisions of this
Section 4 shall not apply to or restrict any action that may be taken by any
Stockholder in his capacity as a director of the Company.
5. Representations and Warranties of the Stockholders. Each Stockholder
hereby severally represents and warrants with respect to itself and its
ownership of the Shares to Purchaser as follows:
a. Authority Relative to this Agreement. The Stockholder has all necessary
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby have
been duly and validly authorized by all necessary action on the part of the
Stockholder. This Agreement has been duly and validly executed and delivered by
the Stockholder and, assuming the due authorization, execution and delivery by
Purchaser, constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms, except that
such enforceability may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally.
b. No Conflict. The execution and delivery of this Agreement by the
Stockholder does not, and the performance of this Agreement by the Stockholder
will not, (i) require any consent, approval, authorization or permit of, or
filing with or notification to (other than pursuant to the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and the Securities Exchange Act
of 1934, as amended), any governmental or regulatory authority, domestic or
foreign, (ii) if applicable, conflict with or violate the Certificate of
Incorporation
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or By-laws of the Stockholder, (iii) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to the Stockholder or by which
any property or asset of the Stockholder is bound or (iv) result in the creation
of a lien or other encumbrance of any nature whatsoever on any of the Shares
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which the
Stockholder is a party or by which the Stockholder is or the Shares are bound.
c. Title to the Shares. The Shares owned by the Stockholder are all the
securities of the Company owned, either of record or beneficially, by the
Stockholder. The Stockholder owns all such Shares free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal, agreements,
limitations on the Stockholder's voting rights, charges and other encumbrances
of any nature whatsoever which would prohibit the granting of the proxy
contained herein, and, except as provided in this Agreement, the Stockholder has
not appointed or granted any proxy, which appointment or grant is still
effective, with respect to the Shares.
d. Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Stockholder.
6. Representations and Warranties of Purchaser. Purchaser hereby represents
and warrants to the Stockholders that Purchaser has all necessary power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by
Purchaser have been duly authorized by all necessary action on the part of
Purchaser. This Agreement has been duly and validly executed and delivered by
Purchaser and, assuming the due authorization, execution and delivery by the
Stockholders, constitutes a legal, valid and binding obligation of Purchaser
enforceable in accordance with its terms, except that such enforceability may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally.
7. Termination of Agreement.Purchaser reserves the right in its sole
discretion at any time hereafter to terminate this Agreement and all irrevocable
proxies granted to it hereunder.
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8. Miscellaneous.
a. Expenses. Except as otherwise provided herein or in the Merger
Agreement, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses.
b. Further Assurances. From time to time at the other party's reasonable
request, Purchaser and the Stockholders will execute and deliver all such
further documents and instruments and take all such further action as may be
necessary in order to consummate the transactions contemplated hereby.
c. Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any of the provisions of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy to which they may be entitled at law or in equity.
d. Entire Agreement. This Agreement constitutes the entire agreement
between Purchaser and the Stockholders with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral,
between Purchaser and the Stockholders with respect to the subject matter
hereof.
e. Assignment. This Agreement shall not be assigned by operation of law or
otherwise, without the prior written consent of the parties.
f. Obligations of Successors; Parties in Interest. This Agreement shall be
binding upon, inure solely to the benefit of, and be enforceable by, the
successors and permitted assigns of the parties hereto. Nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
g. Amendment; Waiver. This Agreement may not be amended or changed except
by an instrument in writing signed by the parties hereto. Any party hereto may
(i) extend the time for the performance of any obligation or other act of the
other party hereto, (ii) waive any inaccuracy in the representations and
warranties contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement or condition contained herein. Any
such extension or waiver
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shall be valid if set forth in an instrument in writing signed by the party or
parties to be bound thereby.
h. Severability. The validity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
i. Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by cable, telecopy,
telegram or telex or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 8(i):
if to Purchaser:
ELAN CORPORATION, PLC
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxx 0, Xxxxxxx
Attention: Xxxxxx X. Xxxxx
Telecopy: 011-353-1-662-4963
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
if to any Stockholder:
at the respective addresses of such Stockholder set
forth on the signature pages to this Agreement.
j. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STAE OF DELAWARE (REGARDLESS OF THE LAWS THAT
MIGHT OTHERWISE GOVERN UNDER APPLICABLE DELAWARE PRINCIPLES OF CONFLICTS OF LAW)
AS TO ALL MATTERS, INCLUDING, BUT NOT LIMITED TO, MATTERS OF VALIDITY,
CONSTRUCTION, EFFECT, PERFORMANCE AND REMEDIES.
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k. Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
l. Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
rights, benefits or remedies or any nature whatsoever under or by reason of this
Agreement.
m. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
n. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ANY RIGHT IT MIGHT HAVE
TO A JURY TRIAL OF ANY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT.
IN WITNESS WHEREOF, Purchaser and the Stockholders have duly executed this
Agreement, as of the date first written above.
PURCHASER:
ELAN CORPORATION, PLC
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
STOCKHOLDERS: NUMBER OF SHARES OWNED:
/s/ Xxxxx X. Xxxxxxxx 264,392
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Address:
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/s/ Xxxxxx X. Xxxxxx 135,999
--------------------------------
Name: Xxxxxx X. Xxxxxx
Address:
/s/ Xxxxxx X. Xxxxxx 16,832
--------------------------------
Name: Xxxxxx X. Xxxxxx, M.D.
Address:
/s/ Xxxx X. Xxxxxxxx 113,680
--------------------------------
Name: Xxxx X. Xxxxxxxx
Address:
/s/ Xxxxxx X. Xxxxxx None
--------------------------------
Name: Xxxxxx X. Xxxxxx
Address:
/s/ Xxxxxxx X. Xxxx 19,207
--------------------------------
Name: Xxxxxxx X. Xxxx
Address:
/s/ Xxxx X. Xxxxx, Xx. 47,603
--------------------------------
Name: Xxxx X. Xxxxx, Xx.
Address:
/s/ Xxxx Xxxxxxx 538,971
--------------------------------
Name: Xxxx Xxxxxxx, Ph.D
Address:
/s/ Xxxxxx X. Xxxxxx, Xx. 51,020
--------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Address:
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/s/ Xxxxxx X. Xxxxxx 215,690
--------------------------------
Name: Xxxxxx X. Xxxxxx, M.D.
Address:
/s/ Xxxx X. Xxxxxx 24,999
--------------------------------
Name: Xxxx X. Xxxxxx
Address:
/s/ Xxxx X. Xxxx None
--------------------------------
Name: Xxxx X. Xxxx, Ph.D
Address:
/s/ Xxxxxx X. Xxxxx 52,081
--------------------------------
Name: Xxxxxx X. Xxxxx
Address:
