EXHIBIT 2
EXECUTION COPY
STOCKHOLDER AGREEMENT dated as of November
12, 2002, (this "Agreement"), among ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, a New Jersey corporation ("Parent"),
and the individuals and other parties listed on
Schedule A attached hereto (each, a
"Stockholder" and, collectively, the
"Stockholders").
WHEREAS Parent, Pivot Merger Sub, Inc., a Delaware corporation and a
wholly owned Subsidiary of Parent ("Sub"), and OraPharma, Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") providing for the merger of Sub with and
into the Company (the "Merger"), upon the terms and subject to the conditions
set forth in the Merger Agreement;
WHEREAS each Stockholder owns the number of shares of common stock,
par value $.001 per share, of the Company, (the "Company Common Stock"), set
forth opposite his, her or its name on Schedule A attached hereto (such shares
of Company Common Stock, together with any other shares of capital stock of
the Company acquired by such Stockholder after the date hereof and during the
term of this Agreement (including through the exercise of any stock options,
warrants or similar instruments), being collectively referred to herein as the
"Subject Shares" of such Stockholder);
WHEREAS the Board of Directors of the Company has unanimously
approved the terms of this Agreement; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that each Stockholder enter into this
Agreement.
NOW, THEREFORE, to induce Parent to enter into, and in consideration
of its entering into, the Merger Agreement, and in consideration of the mutual
promises and the representations, warranties, covenants and agreements
contained herein, the parties hereto, intending to be legally bound, agree as
follows:
1. Representations and Warranties of Each Stockholder. Each
Stockholder hereby, severally and not jointly, represents and warrants to
Parent as of the date hereof in respect of himself, herself or itself as
follows:
(a) Authority, Execution and Delivery; Enforceability. The
Stockholder has all requisite power and
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authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes the legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in
accordance with its terms. Except for the expiration or termination of the
waiting periods under the HSR Act and informational filings with the SEC, the
execution and delivery by the Stockholder of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under, or give rise
to a right of termination, cancelation or acceleration of any obligation or to
loss of a material benefit under, or result in the creation of any Lien upon
any of the Subject Shares of the Stockholder under, (i) any trust agreement,
loan or credit agreement, bond, note, mortgage, indenture, lease or other
contract, agreement, obligation, commitment, arrangement, understanding or
instrument, (collectively, "Contracts") to which the Stockholder is a party or
by which any of the Subject Shares of the Stockholder is bound or (ii) subject
to the filings and other matters referred to in the next sentence, any
provision of any judgment, order or decree (collectively, "Judgment") or any
statute, law, ordinance, rule or regulation (collectively, "Applicable Law")
applicable to the Subject Shares of the Stockholder. No consent, approval,
order or authorization (collectively, "Consent") of, action by or in respect
of, or registration, declaration or filing with, any Governmental Entity is
required to be obtained or made by or with respect to the Stockholder in
connection with the execution, delivery and performance of this Agreement or
the consummation of the transactions contemplated hereby, other than (i)
compliance with and filings under the HSR Act, if applicable to the
Stockholder's receipt in the Merger of the Merger Consideration, (ii) such
reports under Sections 13(d) and 16 of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated hereby and
(iii) where the failure to obtain such Consent or action, or to make such
registration, declaration or filing, could not reasonably be expected to
prevent, materially impede or delay the performance by the Stockholder of its
obligations under this Agreement. If the Stockholder is a natural person and
is married, and the Stockholder's Subject Shares constitute community property
or otherwise need spousal or other approval for this Agreement to be legal,
valid and binding, this Agreement has been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, the
Stockholder's spouse, enforceable against such spouse in accordance with its
terms. No trust of which
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such Stockholder is a trustee requires the consent of any beneficiary to the
execution and delivery of this Agreement or to the consummation of the
transactions contemplated hereby.
(b) The Subject Shares. The Stockholder is the record and beneficial
owner of, or is trustee of a trust that is the record holder of, and whose
beneficiaries are the beneficial owners of, and has good and marketable title
to, the Subject Shares set forth opposite his, her or its name on Schedule A
attached hereto, free and clear of any Liens. The Stockholder does not own, of
record or beneficially, any shares of capital stock of the Company other than
the Subject Shares set forth opposite his, her or its name on Schedule A
attached hereto. The Stockholder has the sole right to vote such Subject
Shares (except to the extent that such Subject Shares are issuable upon the
exercise of options or Warrants that have not been exercised by such
Stockholder), and, except as contemplated by this Agreement, none of such
Subject Shares is subject to any voting trust or other agreement, arrangement
or restriction with respect to the voting of such Subject Shares.
2. Representations and Warranties of Parent. Parent hereby
represents and warrants to each Stockholder that Parent (i) is duly
incorporated, validly existing and in good standing under the laws of the
State of New Jersey, and (ii) has all requisite corporate power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly authorized. The execution and delivery by
Parent of this Agreement and consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Parent. Parent has duly executed and delivered this Agreement, and,
assuming this Agreement constitutes the legal, valid and binding obligation of
each of the other parties hereto, this Agreement constitutes a valid and
binding obligation of Parent enforceable against Parent in accordance with its
terms. The execution and delivery by Parent of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under, or give rise
to a right of termination, cancelation or acceleration of any obligation or to
loss of a material benefit under, (i) the Certificate of Incorporation or
By-laws of Parent, (ii) any Contract to which Parent is a party or by which
any properties or assets of Parent are bound in any way that would prevent the
consummation by Parent of the transactions contemplated by this Agreement or
(iii) subject to the
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filings and other matters referred to in the next sentence, any provision of
any Judgment or Applicable Law applicable to Parent or the properties or
assets of Parent, in any way that would prevent the consummation by Parent of
the transactions contemplated by this Agreement. No Consent of, action by or
in respect of, or registration, declaration or filing with, any Governmental
Entity is required to be obtained or made by or with respect to Parent in
connection with the execution, delivery and performance of this Agreement or
the consummation of the transactions contemplated hereby, other than such
reports under Sections 13(d) and 16 of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated hereby.
3. Covenants of each Stockholder. Each Stockholder, acting as a
stockholder of the Company (or warrantholder of the Company with respect to
Section 3(i)) and not as an officer or director of the Company, severally and
not jointly, agrees as follows:
(a) Without in any way limiting each Stockholder's right to vote its
Subject Shares in its sole discretion with respect to any other matters, at
any meeting of stockholders of the Company called to vote upon the Merger and
the Merger Agreement or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is
sought, the Stockholder shall, including by executing a written consent if
requested by Parent, vote (or cause to be voted) the Subject Shares in favor
of the Merger, the adoption by the Company of the Merger Agreement and the
approval of the terms thereof and each of the other transactions contemplated
by the Merger Agreement.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the Stockholder's
vote, consent or other approval is sought, the Stockholder shall vote (or
cause to be voted) the Subject Shares against (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company or any other
Takeover Proposal or (ii) any amendment of the Company's Fourth Amended and
Restated Certificate of Incorporation or By-laws or other proposal or
transaction involving the Company, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent or nullify, or
result in a breach of any covenant, representation or warranty or
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any other obligation of the Company under or with respect to, the Merger, the
Merger Agreement or any of the other transactions contemplated by the Merger
Agreement or change in any manner the voting rights of the Company Common
Stock. The Stockholder shall not commit or agree to take any action
inconsistent with the foregoing.
(c) The Stockholder shall not (i) sell, transfer, pledge, assign or
otherwise dispose of (including by gift) (collectively, "Transfer"), consent
to any Transfer of, or enter into any Contract, option or other arrangement
(including any profit sharing arrangement) with respect to the Transfer of,
any Subject Shares (or any interest therein) to any person other than pursuant
to the terms of the Merger or (ii) enter into any voting arrangement, whether
by proxy, voting agreement or otherwise, with respect to any Subject Shares
other than pursuant to this Agreement and shall not commit or agree to take
any of the foregoing actions. The Stockholder shall not, nor shall such
Stockholder permit any entity under such Stockholder's control to, deposit any
Subject Shares in a voting trust.
(d) The Stockholder shall not, nor shall it authorize or permit any
employees or Affiliates of, or any investment banker, financial advisor,
attorney, accountant or other advisor, agent or representative of, the
Stockholder (collectively, the "Stockholder Representatives") to, directly or
indirectly through any person or entity, (i) solicit, initiate or encourage,
or take any other action designed to, or which would reasonably be expected
to, facilitate, any inquiries or the making of any proposal that constitutes
or would reasonably be expected to lead to a Takeover Proposal or (ii) enter
into, continue or otherwise participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to any
Takeover Proposal. Without limiting the foregoing, it is agreed that any
violation of the restrictions set forth in the preceding sentence by any
Stockholder Representative of such Stockholder, whether or not such person is
purporting to act on behalf of such Stockholder, shall be a breach of this
Section 3(d) by such Stockholder. The Stockholder shall promptly advise Parent
orally and in writing of any Takeover Proposal or inquiry made to the
Stockholder with respect to any Takeover Proposal.
(e) Until the earlier of (i) the consummation of the Merger and (ii)
termination of the Merger Agreement pursuant to its terms, the Stockholder
shall use all reasonable efforts to take, or cause to be taken, all actions,
and to do, or cause to be done, and to assist and
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cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by the Merger
Agreement. The Stockholder shall not issue any press release or make any other
public statement with respect to this Agreement, the Merger Agreement, the
Merger or any other transaction contemplated by this Agreement or the Merger
Agreement without the prior written consent of Parent, except as may be
required by Applicable Law.
(f) The Stockholder, and any beneficiary of a revocable trust for
which such Stockholder serves as trustee, shall not take any action to revoke
or terminate such trust or take any other action which would restrict, limit
or frustrate in any way the transactions contemplated by this Agreement. Each
such beneficiary hereby acknowledges and agrees to be bound by the terms of
this Agreement applicable to it.
(g) The Stockholder hereby consents to and approves the actions
taken by the Board of Directors of the Company in approving the Merger
Agreement and this Agreement, the Merger and the other transactions
contemplated by the Merger Agreement. The Stockholder hereby waives, and
agrees not to exercise or assert, any appraisal or similar rights under
Section 262 of the DGCL or other Applicable Law in connection with the Merger.
(h) (i) In the event that the Termination Fee shall become
unconditionally payable pursuant to the terms of the Merger Agreement, each
Stockholder shall pay to Parent an amount equal to fifty percent (50%) of all
profit (determined in accordance with Section 3(h)(ii)) of such Stockholder,
solely in his, her or its capacity as a stockholder of the Company, from the
consummation of any Takeover Proposal (such amount to be payable immediately
following the consummation of such Takeover Proposal).
(ii) For purposes of this Section 3(h), the profit of any
Stockholder, solely in his, her or its capacity as a stockholder of the
Company, from the consummation of any Takeover Proposal shall equal (A) the
aggregate consideration received by such Stockholder, solely in his, her or
its capacity as a stockholder of the Company, as a result of the consummation
of such Takeover Proposal, valuing any non-cash consideration (including any
residual interest in the Company) at its fair market value on the date of such
consummation plus (B) the fair market value, on the date of sale or other
disposition, of all Subject Shares of such Stockholder sold or otherwise
disposed of after the
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termination of the Merger Agreement and prior to the date of such consummation
less (C) the product of $7.41 and the number of Subject Shares owned by such
Stockholder, which amount is payable to such Stockholder pursuant to the
Merger Agreement, as in effect on the date hereof (the "Original Merger
Consideration").
(iii) In the event that (A) prior to the Effective Time, a Takeover
Proposal shall have been made to the Company or shall have been made directly
to the stockholders of the Company generally or shall have otherwise become
publicly known or any person shall have publicly announced an intention
(whether or not conditional) to make a Takeover Proposal and (B) the Effective
Time shall have occurred and Parent for any reason shall have increased the
amount of the Original Merger Consideration, each Stockholder shall pay to
Parent on demand an amount in cash equal to the product of (x) the number of
Subject Shares of such Stockholder and (y) 50% of the excess, if any, of (I)
the per share cash consideration or the per share fair market value of any
non-cash consideration, as the case may be, received by the Stockholder as a
result of the consummation of the Merger, pursuant to the Merger Agreement as
in effect on the date of such consummation, determined as of the Effective
Time of the Merger, over (II) the Original Merger Consideration.
(iv) For purposes of this Section 3(h), the fair market value of any
non-cash consideration consisting of:
(A) securities listed on a national securities exchange or
traded on The Nasdaq Stock Market shall be equal to the
average closing price per share of such security as
reported on such exchange or The Nasdaq Stock Market for
the five trading days immediately preceding the date of
determination; and
(B) consideration which is other than cash or securities of
the form specified in clause (A) of this Section 3(h)(iv)
shall be determined by a nationally recognized independent
investment banking firm mutually agreed upon by Parent and
the Stockholder owning the largest number of Subject
Shares as set forth on Schedule A attached hereto within
10 business days prior to the event requiring the
selection of such
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investment banking firm; provided, however, that if such
parties are unable to agree within two business days prior
to the date of such event as to the investment banking
firm, then such parties shall each select one investment
banking firm, and those firms shall select a third
investment banking firm, which third firm shall make such
determination; provided further, that the fees and
expenses of such investment banking firm shall be borne
equally by Parent, on the one hand, and the Stockholders,
on the other hand. The determination of the investment
banking firm shall be binding upon the parties.
(v) Any payments under this Section 3(h) shall be paid to Parent as
designated by it with the same kind of consideration received by each
Stockholder in the transaction giving rise to such payment obligation.
(i) As set forth on Schedule B attached hereto, each Stockholder who
also holds Warrants exercisable for Company Common Stock (as set forth
opposite his, her or its name on Schedule B attached hereto) hereby consents
to the lump sum cash payment as specified in Section 5.04(b) of the Merger
Agreement and the concurrent cancelation of such Warrants. The Stockholder
does not own, of record or beneficially, any Warrants exercisable for Company
Common Stock other than the Warrants set for opposite his, her or its name on
Schedule B attached hereto.
4. Grant of Irrevocable Proxy; Appointment of Attorney-in-Fact.
(a) Each Stockholder hereby irrevocably grants to, and appoints,
Parent and ▇▇▇▇▇▇ ▇'▇▇▇▇, Vice President, Business Development, Consumer and
Personal Care Group of Parent, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President, Personal Products
Company, Division of ▇▇▇▇▇▇, PPC, Inc. and ▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant General
Counsel of Parent, in their respective capacities as officers of Parent, and
any individual who shall hereafter succeed to any such office of Parent, and
each of them individually, and any individual designated in writing by any of
them, as such Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Stockholder, to
vote such Stockholder's Subject Shares, or grant a consent or approval in
respect of such Subject Shares (i) in favor of adoption of the Merger
Agreement and approval of the Merger
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and any other transactions contemplated by the Merger Agreement, (ii) against
any Takeover Proposal and (iii) against any amendment of the Company's Fourth
Amended and Restated Certificate of Incorporation or By-laws, or other
proposal or transaction (including any consent solicitation to remove or elect
any directors of the Company) involving the Company, which amendment or other
proposal or transaction would in any manner impede, frustrate, prevent or
nullify, or result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under or with respect to, the
Merger, the Merger Agreement or any of the other transactions contemplated by
the Merger Agreement or change in any manner the voting rights of the Company
Common Stock. The Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement.
(b) Such Stockholder represents that any proxies heretofore given in
respect of such Stockholder's Subject Shares are not irrevocable, and that all
such proxies are hereby revoked.
(c) Such Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 4 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 the Stockholder under this Agreement. Such
Stockholder hereby further affirms that the irrevocable proxy is coupled with
an interest and may under no circumstances be revoked. Such 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(e) of the
DGCL. The irrevocable proxy granted hereunder shall automatically terminate
upon the termination of this Agreement in accordance with Section 7.
5. Further Assurances. Each Stockholder will, 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 may reasonably
request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
6. Additional Matters. (a) Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Subject Shares and shall be binding upon any person or entity to which legal
or beneficial ownership of such Subject Shares shall pass,
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whether by operation of law or otherwise, including such Stockholder's heirs,
guardians, administrators or successors, and that each certificate
representing such Subject Shares will be inscribed with a legend to such
effect. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of
the Company affecting the Company Common Stock, or the acquisition of
additional shares of Company Common Stock or other voting securities of the
Company by any Stockholder, the number of Subject Shares listed in Schedule A
beside the name of such Stockholder shall be adjusted appropriately and this
Agreement and the obligations hereunder shall attach to any additional shares
of Company Common Stock or other voting securities of the Company issued to or
acquired by such Stockholder. Notwithstanding any provision in this Agreement
to the contrary, nothing herein shall require or be deemed to require the
exercise of, or give any person other than the Stockholder the power to
exercise, any option to purchase Company Common Stock or any Warrants held at
any time by such Stockholder, it being understood that the foregoing shall in
no way limit the provisions of Section 3(i) herein.
(b) Each Stockholder agrees that such Stockholder will tender to the
Company, within 10 business days after the date hereof (or, in the event
Subject Shares are acquired subsequent to the date hereof within 10 business
days after the date of such acquisition), any and all certificates
representing such Stockholder's Subject Shares in order that the Company may
inscribe upon such certificates the legend in accordance with Section 5.11 of
the Merger Agreement.
(c) No person executing this Agreement who is or becomes during the
term hereof a director or officer of the Company makes (or shall be deemed to
have made) any agreement or understanding herein in his or her capacity as
such a director or officer of the Company. Each Stockholder signs solely in
his, her or its capacity as the record holder and beneficial owner of, or the
trustee of a trust whose beneficiaries are the beneficial owners of, such
Stockholder's Subject Shares and nothing herein shall limit or affect any
actions taken by any Stockholder or any employee or Affiliate of any
Stockholder in his or her capacity as an officer or director of Company to the
extent specifically permitted by the Merger Agreement.
7. Termination. This Agreement shall terminate, and the provisions
hereof shall be of no further force or effect, upon the earliest to occur of
(i) the Effective Time, (ii) the termination of the Merger Agreement or (iii)
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at the option of any Stockholder, the execution or granting of any amendment,
modification, change or waiver with respect to the Merger Agreement subsequent
to the date of this Agreement that results in any decrease in the price to be
paid per share for the shares of Company Common Stock, or any change in the
form of consideration to be used to purchase the shares of Company Common
Stock that results in a reduction of the amount of cash to be paid in respect
thereof. Notwithstanding the foregoing, (a) in the event that the Merger
Agreement shall have been terminated under circumstances where Parent is or
may become entitled to receive the Termination Fee, Section 3(h) shall survive
the termination of the Merger Agreement until the earlier to occur of (I) the
12-month anniversary of the termination of the Merger Agreement in the event
that the Termination Fee does not become unconditionally payable before such
date or (II) with respect to any Stockholder, the date on which any amount
payable by such Stockholder to Parent pursuant to Section 3(h)(i) shall have
been paid in full or (b) with respect to any Stockholder, in the event that
the Merger shall have been consummated under circumstances where Parent is
entitled to receive payment from such Stockholder pursuant to Section
3(h)(iii), Section 3(h) shall survive the consummation of the Merger until the
date on which any amount payable by such Stockholder to Parent shall have been
paid in full. Nothing in this Section 7 shall relieve or otherwise limit the
liability of any party for breach of this Agreement.
8. General Provisions. (a) Amendments. This Agreement may not be
amended except by an instrument in writing signed by each of the parties
hereto.
(b) Notice. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to Parent in accordance with
Section 8.02 of the Merger Agreement and to the Stockholders at their
respective addresses set forth on Schedule A attached hereto (or at such other
address for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
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(d) Counterparts. This Agreement may be executed in one or more
counterparts (including by facsimile), all of which shall be considered one
and the same agreement. This Agreement shall become effective against Parent
when one or more counterparts have been signed by Parent and delivered to each
Stockholder. This Agreement shall become effective against any Stockholder
when one or more counterparts have been executed by such Stockholder and
delivered to Parent. Each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i) constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof and (ii) is not intended to confer upon any person other than the
parties hereto any legal or equitable rights or remedies.
(f) GOVERNING LAW; CAPITALIZED TERMS. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW THEREOF. CAPITALIZED TERMS USED BUT NOT DEFINED
HEREIN SHALL HAVE THE MEANINGS SET FORTH IN THE MERGER AGREEMENT.
(g) Voidability. If prior to the execution hereof, the Board of
Directors of the Company shall not have duly and validly authorized and
approved by all necessary corporate action, this Agreement, the Merger
Agreement and the transactions contemplated hereby and thereby, so that by the
execution and delivery hereof Parent or Sub would become, or could reasonably
be expected to become an "interested stockholder" with whom the Company would
be prevented for any period pursuant to Section 203 of the DGCL from engaging
in any "business combination" (as such terms are defined in Section 203 of the
DGCL), then this Agreement shall be void and unenforceable until such time as
such authorization and approval shall have been duly and validly obtained.
9. Specific Enforcement. The parties agree that irreparable damage
would occur and that the parties would not have any adequate remedy at law in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties 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 in any Federal court
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located in the State of Delaware or in any state court in the State of
Delaware, 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 itself to the personal jurisdiction of any Federal court
located in the State of Delaware or of any state court located in the State of
Delaware in the event any dispute arises out of this Agreement or the
transactions contemplated by this Agreement, (ii) 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 (iii) agrees that it will not bring
any action relating to this Agreement or the transactions contemplated by this
Agreement in any court other than a Federal court located in the State of
Delaware or a state court located in the State of Delaware.
10. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any Stockholder, on
the one hand, without the prior written consent of Parent nor by Parent, on
the other hand, without the prior written consent of the Stockholders, and any
assignment without such consent shall be null and void, except that Parent may
assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to any direct or indirect wholly owned Subsidiary of
Parent. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
11. Severability. If any term or other provision of this Agreement
is 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. 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.
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IN WITNESS WHEREOF, Parent has caused this Agreement to be signed by
its officer thereunto duly authorized and each Stockholder has signed this
Agreement, all as of the date first written above.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Member, Executive
Committee; Worldwide
Chairman, Consumer &
Personal Products Group
[Signature pages of the Stockholders follow]
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IN WITNESS WHEREOF, Parent has caused this Agreement to be signed by
its officer thereunto duly authorized and each Stockholder has signed this
Agreement, all as of the date first written above.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
By:
--------------------------------------
Name:
Title:
Domain Partners IV, L.P.
By: One ▇▇▇▇▇▇ Square Associates IV,
L.L.C., its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Member
▇▇ ▇▇ Associates, L.P.
By: One ▇▇▇▇▇▇ Square Associates IV,
L.L.C., its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Member
Domain Associates, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Member
16
TL Ventures III L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
TL Ventures III Interfund L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
TL Ventures III Offshore L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇▇ Healthcare II, L.P.
By FHM II. LLC, its general partner
By ▇▇▇▇▇▇▇ Management LLC, its
managing member
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇, Member
18
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
19
SCHEDULE A
Name and Number of Shares
Address of of Common Stock
Stockholder Owned of Record
Domain Partners (1)
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 1,062,579
▇▇▇▇▇▇▇ Healthcare II, L.P.
Two Union Square
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 1,110,909
TL Ventures (2)
700 Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 849,854
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 345,874
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 44,056
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇ 105,875
▇▇▇ ▇. ▇▇▇▇▇▇ 18,350
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 3,200
Total: 3,540,697
(1) Includes shares held by Domain Partners IV L.P. and ▇▇ ▇▇ Associates, L.P.
and Domain Associates, L.L.C.
(2) Includes shares held by TL Ventures III L.P., TL Ventures III Interfund L.P.
and TL Ventures III Offshore L.P.
SCHEDULE B
Number of Shares
of Common Stock
Number of Underlying the
Name of Stockholder Warrants Warrants
Domain Partners IV L.P. 3,457 3,457
▇▇ ▇▇ Associates, L.P. 83 83
▇▇▇▇▇▇▇ Healthcare II, L.P. 4,425 4,425
TL Ventures III L.P. 8,907 8,907
TL Ventures III Interfund L.P. 290 290
TL Ventures III Offshore L.P. 1,864
L.P. 1,864