Exhibit 99.2
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AGREEMENT
This AGREEMENT (the "Agreement") is made and entered into as of November
10, 2006, by and between Nabi Biopharmaceuticals, a Delaware corporation
("Nabi"), Xxxxx Xxxxx ("Xxxxx") and JALAA Equities, LP (together with Xxxxx,
"JALAA").
RECITALS
WHEREAS, Third Point LLC, a Delaware limited liability company ("Third
Point") intends to solicit written consents from Nabi's stockholders (the
"Solicitation") to (i) remove a majority of the members of Nabi's board of
directors (the "Board") and (ii) request that the Board fill the resulting
vacancies on the Board with nominees selected by Third Point, including Xxxxx;
and
WHEREAS, concurrently with the execution of this Agreement, Nabi and Third
Point are entering into a Settlement Agreement (the "Settlement Agreement"),
providing, among other things, that Xxxxx will be appointed to the Board;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
AGREEMENTS
Section 1.1. Termination of Solicitation; Voting Agreement. (a) From the
date hereof through the completion of the annual meeting of stockholders of Nabi
to be held in 2007 (the "2007 Annual Meeting"), neither JALAA nor any of its
Affiliates will, directly or indirectly, solicit proxies or consents for the
voting of any voting or other securities of Nabi or otherwise become a
"participant," directly or indirectly, in any "solicitation" of "proxies" or
consents to vote, or become a "participant" in any "election contest" involving
Nabi or Nabi's securities (all terms used herein and defined in Regulation 14A
under the Exchange Act of 1934, as amended (the "Exchange Act") having the
meanings assigned to them therein), (ii) seek to advise or influence any person
with respect to the voting of any securities of Nabi, (iii) initiate, propose or
otherwise "solicit" Nabi stockholders for the approval of shareholder proposals,
(iv) otherwise communicate with Nabi's stockholders or others pursuant to Rule
14a-1(l)(2)(iv) under the Exchange Act, (v) otherwise engage in any course of
conduct with the purpose of causing stockholders of Nabi to vote contrary to the
recommendation of the Board on any matter presented to Nabi's stockholders for
their vote or challenging the policies of Nabi or (vi) otherwise act, directly
or indirectly, alone or in concert with others, to seek to control or influence
the management, the Board, policies or affairs of Nabi, other than through the
Third Point nominees to the Board (the "Third Point Nominees"). For purposes of
this Agreement, "Affiliate" means, with respect to any person, any other person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person and any
employees, officers and partners of JALAA.
(b) Until the completion of the 2007 Annual Meeting,
(i) at each meeting of stockholders of Nabi held for the purpose of
electing any member of the Board, JALAA shall, and shall cause its Affiliates
to, cause all voting securities of Nabi beneficially owned by each of them to be
present at such meeting for purposes of establishing a quorum and to be voted
(x) for the nominees recommended by the Board (provided such nominees include
the Third Point Nominees), (y) on all other proposals of the Board and any
proposals by other stockholders of Nabi not covered by clause (z) below, as
JALAA determines is appropriate, and (z) in accordance with the recommendation
of the Board on any proposals of any other stockholder of Nabi who is also
proposing one or more nominees for election as director in opposition to the
nominees of the Board at any such meeting. No later than five business days
prior to each such meeting of stockholders, JALAA shall, and shall cause each of
its Affiliates to, vote in accordance with this Section 1.1(b). JALAA shall not,
and shall cause each of its Affiliates not to, revoke or change any vote in
connection with any such meeting of stockholders unless such revocation or
change is required or permitted in accordance with the first sentence of this
Section 1.1(b); and
(ii) JALAA shall not, and shall cause its Affiliates not to, execute
any written consent to approve any proposal by any other stockholder of Nabi
(including a proposal for the removal and/or election of new members of the
Board) that has not been recommended by the Board.
ARTICLE II.
MISCELLANEOUS PROVISIONS
Section 2.1. Representations and Warranties.
(a) Each of the parties hereto represents and warrants to the other party
that:
(i) such party has all requisite authority and power to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby,
(ii) the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly
authorized by all required action on the part of such party and no other
proceedings on the part of such party are necessary to authorize the
execution and delivery of this Agreement or to consummate the transactions
contemplated hereby,
(iii) the Agreement has been duly and validly executed and delivered
by such party and constitutes the valid and binding obligation of such
party enforceable against such party in accordance with their respective
terms, and
(iv) this Agreement will not result in a violation of any terms or
provisions of any agreements to which such person is a party or by which
such party may otherwise be bound or of any law, rule, license, regulation,
judgment, order or decree governing or affecting such party.
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(b) The parties hereto acknowledge, warrant and represent that they have
carefully read this Agreement, understand it, have consulted with and received
the advice of counsel regarding this Agreement, agree with its terms, are duly
authorized to execute it and freely, voluntarily and knowingly execute it.
Section 2.2. General.
(a) This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and the respective successors, personal
representatives and assigns of the parties hereto.
(b) This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and thereof and supersedes all prior and
contemplated arrangements and understandings with respect thereto.
(c) This Agreement may be signed in counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same Agreement.
(d) All notices and other communications required or permitted hereunder
shall be effective upon receipt and shall be in writing and may be delivered in
person, by telecopy, electronic mail, express delivery service or U.S. mail, in
which event it may be mailed by first-class, certified or registered, postage
prepaid, addressed to the party to be notified at the respective addresses set
forth below, or at such other addresses which may hereinafter be designated in
writing:
If to Nabi:
Nabi Biopharmaceuticals
0000 Xxxx xx Xxxxxxxx Xxxxxxxxx, X.X.
Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. XxXxxx
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxx
Fax No.: (000) 000-0000
and
Xxxxxx, XxXxxxxxx & Fish LLP
World Trade Center West
000 Xxxxxxx Xxxxxxxxx
0
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax No.: (000) 000-0000
If to JALAA:
JALAA Equities, LP
00 Xxxxxx Xxxx
Xxxxxxxxx XX 00000
Attention: Xxxxx Xxxxx
Fax No.: 000-000-0000
(e) This Agreement and the legal relations hereunder between the parties
hereto shall be governed by and construed in accordance with the laws of the
State of Delaware applicable to contracts made and performed therein, without
giving effect to the principles of conflicts of law thereof.
(f) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid, but if any provision of
this Agreement is held to be invalid or unenforceable in any respect, such
invalidity or unenforceability shall not render invalid or unenforceable any
other provision of this Agreement.
(g) It is hereby agreed and acknowledged that it will be impossible to
measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved person will be irreparably damaged and will
not have an adequate remedy at law. Any such person, therefore, shall be
entitled to injunctive relief, including specific performance, to enforce such
obligations, without the posting of any bond, and, if any action should be
brought in equity to enforce any of the provisions of this Agreement, none of
the parties hereto shall raise the defense that there is an adequate remedy at
law.
(h) Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments and documents as any other
party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(i) Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the courts of the State of
Delaware and of the United States of America, in each case located in the County
of New Castle, for any action, proceeding or investigation in any court or
before any governmental authority arising out of or relating to this Agreement
and the transactions contemplated hereby (and agrees not to commence any action,
proceeding or investigation relating thereto except in such courts), and further
agrees that service of any process, summons, notice or document by registered
mail to its respective address set forth in this Agreement shall be effective
service of process for any action, proceeding or investigation brought against
it in any such court. Each of the parties hereto hereby irrevocably
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and unconditionally waives any objection to the laying of venue of any action,
proceeding or investigation arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of Delaware or the United States
of America, in each case located in the County of New Castle, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, proceeding or investigation brought in any such
court has been brought in an inconvenient forum.
(j) Xxxxx and JALAA Equities, LP shall be jointly and severally liable with
respect to all their respective covenants under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first written above.
NABI BIOPHARMACEUTICALS
By: /s/ Xxxxxx X. XxXxxx
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Name: Xxxxxx X. XxXxxx
Title: Chairman, Chief Executive Officer
and President
JALAA EQUITIES, LP
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: General Partner
/s/ Xxxxx Xxxxx
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XXXXX XXXXX
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