TENDER AND SHAREHOLDER SUPPORT AGREEMENT
Exhibit (d)(2)
This TENDER AND SHAREHOLDER SUPPORT AGREEMENT (this “Agreement”), dated October ___,
2008, is by and among SmithKline ▇▇▇▇▇▇▇ Corporation, a Pennsylvania corporation
(“Parent”), Gemstone Acquisition Corporation, a California corporation and wholly-owned
Subsidiary of Parent (“Purchaser”), and certain shareholders of Genelabs Technologies,
Inc., a California corporation (the “Company”), set forth on Schedule A hereto (each a
“Shareholder” and, collectively the “Shareholders”).
WHEREAS, Parent, Purchaser and the Company propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (the “Merger Agreement”), which provides, among other
things, for Purchaser to commence a tender offer for all of the issued and outstanding shares of
Common Stock (as defined below) of the Company (the “Offer”) and the merger of Purchaser
with and into the Company, with the Company continuing as the surviving corporation (the
“Merger”), upon the terms and subject to the conditions set forth in the Merger Agreement
(capitalized terms used herein without definition shall have the respective meanings specified in
the Merger Agreement);
WHEREAS, each Shareholder beneficially owns the number of shares of common stock, no par
value, of the Company (the “Common Stock”) set forth opposite the name of such Shareholder
on Schedule A hereto (such shares of Common Stock, together with any other shares of capital stock
of the Company as to which such Shareholder acquires beneficial ownership after the date hereof and
prior to the earlier of the Effective Time and the termination of all of the Shareholder’s
obligations under this Agreement, including any shares of Common Stock acquired by means of
purchase, dividend or distribution, or issued upon the exercise of any warrants or options, or the
conversion of any convertible securities or otherwise, being collectively referred to herein as the
“Covered Shares”); and
WHEREAS, as a condition to the willingness of Parent and Purchaser to enter into the Merger
Agreement and as an inducement and in consideration therefor, the Shareholders have agreed to enter
into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set
forth herein and in the Merger Agreement, and intending to be legally bound hereby, the parties
hereto agree as follows:
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SECTION 1. Representations and Warranties of the Shareholders. Each Shareholder
hereby represents and warrants to Parent and Purchaser, severally and not jointly, and solely as to
itself and its Covered Shares, as follows:
(a) The Shareholder (i) is the beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of, and has good and marketable title to, the Covered Shares set
forth opposite such Shareholder’s name on Schedule A hereto, free and clear of any and all liens,
claims, security interests, proxies, voting trusts or agreements, options, rights, understandings
or arrangements or any other encumbrances whatsoever on title, transfer, or exercise of any rights
of a Shareholder in respect of such Covered Shares (collectively, “Encumbrances”) except
for restrictions on transfer under the Securities Act of 1933, as amended, or Encumbrances arising
hereunder; (ii) does not own, of record or beneficially, any shares of capital stock of the Company
(or rights to acquire any such shares) other than the Covered Shares set forth on Schedule A
hereto; and (iii) has the right to vote and dispose of and holds power to issue instructions with
respect to the matters set forth in Sections 3, 4, 5 and 6 hereof, power to demand appraisal
rights and power to agree to all of the matters set forth in this Agreement with respect to all of
such Shareholder’s Covered Shares, with no material limitations, qualifications or restrictions on
such rights, subject to applicable federal securities law and the terms of this Agreement.
(b) In the case of any Shareholder that is a corporation, limited partnership or limited
liability company, such Shareholder is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is incorporated or constituted.
(c) The Shareholder has the legal capacity and all requisite power and authority to execute
and deliver this Agreement and to perform the Shareholder’s obligations hereunder and consummate
the transactions contemplated hereby. To the extent applicable, the execution, delivery and
performance by the Shareholder of this Agreement and the consummation by the Shareholder of the
transactions contemplated hereby have been duly and validly authorized by the Shareholder (or its
board of directors or similar governing body, as applicable), and no other actions or proceedings
on the part of the Shareholder are necessary to authorize the execution and delivery by the
Shareholder of this Agreement and the consummation by the Shareholder of the transactions
contemplated hereby. This Agreement has been duly and validly executed and delivered by the
Shareholder and constitutes a valid and binding obligation of the Shareholder enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other
similar laws relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at law).
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(d) Neither the execution and delivery of this Agreement by the Shareholder, the performance
by the Shareholder of such Shareholder’s obligations hereunder nor the consummation by the
Shareholder of the transactions contemplated hereby will (i) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default under, or conflict with (A)
to the extent applicable, any provisions of the organizational documents of the Shareholder or (B)
any note, bond, mortgage, indenture, contract, agreement, lease, license, permit or other
instrument or obligation of any kind to which such Shareholder is a party or by which such
Shareholder’s Covered Shares are bound, except with respect to clause (B) for any such violations,
breaches, defaults or conflicts as could not reasonably be expected, either individually or in the
aggregate, to materially impair the ability of such Shareholder to perform his or its obligations
hereunder or to consummate the transactions contemplated hereby on a timely basis, or (ii) violate,
or require any consent, approval, or notice under, any provision of any judgment, order or decree
or any federal, state, local or foreign statute, law, ordinance, rule, regulation, order, judgment,
decree or legal requirement applicable to such Shareholder or any of such Shareholder’s Covered
Shares (other than filings required pursuant to the Securities Exchange Act of 1934, as amended,
and the rules promulgated thereunder).
SECTION 2. Representations and Warranties of Parent and Purchaser. Each of Parent and
Purchaser hereby, jointly and severally, represents and warrants to the Shareholders as follows:
(a) Each of Parent and Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is incorporated, and each of Parent and
Purchaser has all requisite corporate power and corporate authority to execute and deliver this
Agreement and to perform its obligations hereunder and consummate the transactions contemplated
hereby, and has taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by each of Parent and
Purchaser and constitutes a valid and binding obligation of Parent and Purchaser enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors’ rights
generally and general equitable principles (whether considered in a proceeding in equity or at
law).
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(c) Neither the execution and delivery of this Agreement by Parent and Purchaser, the
performance by Parent and Purchaser of their obligations hereunder nor the consummation by Parent
and Purchaser of the transactions contemplated hereby will (i) result in a violation or breach of,
or constitute (with or without notice or lapse of time or both) a default under, or conflict with
(A) any provisions of the organizational documents of Parent or Purchaser or (B) any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit or other instrument or obligation
of any kind to which such Parent or Purchaser is a party or by which Parent or Purchaser or their
assets are bound, except with respect to clause (B) for any such violations, breaches, defaults or
conflicts as could not reasonably be expected, either individually or in the aggregate, to
materially impair the ability of Parent or Purchaser to perform its obligations hereunder or to
consummate the transactions contemplated hereby on a timely basis, or (ii) violate, or require any
consent, approval, or notice under, any provision of any judgment, order or decree or any federal,
state, local or foreign statute, law, ordinance, rule, regulation, order, judgment, decree or legal
requirement applicable to Parent or Purchaser or their assets (other than filings required pursuant
to Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder).
SECTION 3. Tender of the Covered Shares. Unless this Agreement shall have been
terminated in accordance with its terms, and subject to Section 5, each Shareholder hereby agrees
that it shall (i) tender its Covered Shares or cause to be tendered (and deliver any certificates
evidencing such Covered Shares or an appropriate affidavit of lost certificate with respect thereto
to the extent any of such certificates have been lost, misplaced or destroyed), into the Offer
promptly following the date the Offer is commenced, and in any event no later than five (5)
Business Days prior to the Initial Expiration Date of the Offer, free and clear of all Encumbrances
and (ii) not withdraw or cause to be withdrawn, its Covered Shares from the Offer at any time. If
a Shareholder acquires Covered Shares after the date hereof, unless this Agreement shall have been
terminated in accordance with its terms, such Shareholder shall (A) tender, or cause to be
tendered, such Covered Shares into the Offer on or before the fifth (5th) Business Day
prior to the Initial Expiration Date or, if later, on or before the second (2nd)
Business Day after such acquisition but in any event prior to the Expiration Date, and (B) not
withdraw, or cause to be withdrawn, such Covered Shares from the Offer at any time.
SECTION 4. Option.
(a) On the terms and subject to the conditions set forth herein, each Shareholder hereby
grants to Parent an irrevocable option (the “Option”) to purchase all of the right, title
and interest of such Shareholder in and to such Shareholder’s Covered Shares at a
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price equal to the Offer Price. Parent may exercise an Option in whole, but not in part, if,
but only if, (i) Purchaser has acquired shares of Common Stock pursuant to the Offer and (ii) such
Shareholder shall have failed to tender into the Offer any Covered Shares or shall have withdrawn
the tender of any Covered Shares into the Offer. Parent may exercise an Option at any time within
the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that Parent is entitled to and wishes to exercise an Option, Parent shall
send a written notice to the relevant Shareholder(s) specifying the place and the date for the
closing of such purchase, which date shall be not more than sixty (60) days after the date of such
notice; provided that in the event that prior notification to, or approval of, any
Governmental Entity is required in connection with the exercise of an Option or there shall be in
effect any preliminary or final injunction or other order issued by any Governmental Entity
prohibiting the exercise of an Option, the period of time during which the date of the closing may
be fixed shall be extended until the tenth (10th) day following the last date on which
all required approvals shall have been obtained, all required waiting periods shall have expired or
been terminated and any such prohibition shall have been vacated, terminated or waived.
(c) At the closing of the purchase of a Shareholder’s Covered Shares pursuant to exercise of
an Option, simultaneously with the payment by the Parent of the purchase price for a Shareholder’s
Covered Shares, such Shareholder shall deliver, or cause to be delivered, to the Purchaser
certificates representing such Covered Shares duly endorsed to the Parent or accompanied by stock
powers or other transfer documents duly executed by the Company in blank, together with any
necessary stock transfer stamps properly affixed, free and clear of all Encumbrances.
(d) Parent, Purchaser or the Company, as applicable, shall be entitled to deduct and withhold
from the consideration otherwise payable pursuant to this Section 4 to a holder of Covered Shares
such amounts as are required to be withheld under the Code, or any applicable provision of state,
local or foreign tax law. To the extent that amounts are so withheld, such withheld amounts shall
be treated for all purposes of this Agreement as having been paid to the holder of the Covered
Shares in respect of which such deduction and withholding was made.
SECTION 5. Transfer of the Covered Shares; Other Actions. Prior to the termination of
this Agreement, except as otherwise provided herein (including pursuant to Sections 3, 4 or 7
hereof), each Shareholder shall not: (i) transfer, assign, sell, gift-over, pledge or otherwise
dispose (whether by sale, merger, consolidation, liquidation, dissolution, dividend,
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distribution or otherwise) of, or consent to any of the foregoing (“Transfer”), any
Covered Shares or any right or interest therein; (ii) enter into any contract, option or other
agreement, arrangement or understanding with respect to any Transfer of Covered Shares; (iii) grant
any proxy or power-of-attorney with respect to any of the Covered Shares; (iv) deposit any of the
Covered Shares into a voting trust, or enter into a voting agreement or arrangement with respect to
any of the Covered Shares; or (v) take any other action that would restrict, limit or interfere in
any material respect with the performance of such Shareholder’s obligations hereunder or the
transactions contemplated hereby. Notwithstanding the foregoing, the preceding sentence shall not
prohibit a Transfer of Covered Shares by Shareholder: (A) if Shareholder is an individual, to any
member of Shareholder’s immediate family, or to a trust established for the benefit of Shareholder
and/or for the benefit of one or more members of Shareholder’s immediate family or established for
charitable purposes, or upon the death of Shareholder, or (B) if Shareholder is a partnership,
limited liability company or trust, to one or more partners or members of Shareholder or to an
affiliated corporation under common control with Shareholder or to any trustee or beneficiary of
the trust, provided that any Transfer permitted pursuant to (A) or (B) above shall be
permitted only if, as a precondition to such transfer, the transferee of such Covered Shares agrees
in writing with Parent and Purchaser to be bound by the terms and conditions of this Agreement.
SECTION 6. Covenant to Vote; Irrevocable Proxy.
(a) Prior to termination of this Agreement in accordance with its terms, each Shareholder
hereby agrees to vote all Covered Shares as to which the Shareholder has sole or shared voting
power (the “Vote Shares”), or to provide a written consent in respect of the Vote Shares,
in connection with any meeting of the Shareholders of the Company or any action by written consent
in lieu of a meeting of Shareholders of the Company (i) in favor of the Merger (including adoption
of the Merger Agreement) and/or (ii) against any action or agreement that would reasonably be
expected to impede, delay or interfere with, or prevent, the Merger, including, but not limited to,
any other extraordinary corporate transaction, including, a merger, acquisition, sale,
consolidation, reorganization or liquidation involving the Company and a third party, or any other
Acquisition Proposal proposed by a third party.
(b) In furtherance of the agreements herein and until the termination of this Agreement in
accordance with its terms, each Shareholder hereby irrevocably grants to, and appoints, Parent and
any person or persons designated in writing by Parent, and each of them individually, such
Shareholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name,
place and stead of such Shareholder, to vote all Vote Shares, or grant a consent
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or approval in respect of such Vote Shares, or execute and deliver a proxy to vote such Vote
Shares, (i) in favor of adopting the Merger Agreement and approving the transactions contemplated
thereby, including the Merger and (ii) against any Acquisition Proposal proposed by a third party
or any other matter referred to in clause (a) of Section 6 hereof.
(c) Each Shareholder represents and warrants to Parent that any proxies heretofore given by it
in respect of Covered Shares are not irrevocable, and that any such proxies are hereby revoked, and
agrees to communicate in writing notice of revocation of such proxies to the relevant proxy
holders.
(d) Each Shareholder hereby affirms that the irrevocable proxy set forth in Section 6(b) is
given in connection with, and in consideration of, the execution of the Merger Agreement by Parent,
and that such irrevocable proxy is given to secure the performance of the duties of such
Shareholder under this Agreement. Each Shareholder hereby further affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be revoked. Such Shareholder
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 705(e) of the CGCL until the termination of this Agreement in
accordance with its terms.
SECTION 7. Non-Solicitation. Each Shareholder shall not and shall not authorize or
permit its representatives to directly or indirectly (i) initiate, solicit or knowingly encourage
(including by way of providing non-public information) the submission of any Acquisition Proposal
or engage in any discussions or negotiations with respect thereto or otherwise cooperate with or
assist or participate in, or knowingly facilitate any such Acquisition Proposal, or (ii) approve or
recommend, or publicly propose to approve or recommend, an Acquisition Proposal or enter into any
merger agreement, letter of intent, agreement in principle, share purchase agreement, asset
purchase agreement or share exchange agreement, option agreement or other similar agreement
relating to an Acquisition Proposal or enter into any letter of intent, agreement or agreement in
principle requiring the Shareholder (whether or not subject to conditions) to abandon, terminate or
fail to consummate the transactions contemplated hereby or breach its obligations hereunder.
SECTION 8. Further Assurances. Each Shareholder shall, upon request of Parent or
Purchaser, execute and deliver any additional documents and take such further actions as may
reasonably be deemed by Parent or Purchaser to be necessary or desirable to carry out the
provisions of this Agreement. Nothing in this Agreement shall require a Shareholder to exercise
any option to purchase shares of Common Stock.
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SECTION 9. Termination. This Agreement, and all rights and obligations of the parties
hereunder shall terminate on the earliest of: (a) the date and time the Merger Agreement is
validly terminated in accordance with its terms, (b) the Effective Time and (c) with respect to any
Shareholder, such date and time as any amendment or change to the Merger Agreement or the Offer
that decreases the Offer Price or changes the form of consideration in the Offer is effected
without the consent of such Shareholder. Termination of this Agreement shall not relieve any party
from liability for any breach hereof prior to such termination. Section 11 and Section 13 shall
survive any termination of this Agreement.
SECTION 10. Waiver of Dissenter’s Rights. Each Shareholder waives and agrees not to
exercise any rights to dissent or similar rights with respect to the Merger or other transactions
contemplated by the Merger Agreement that the Shareholder may have with respect to the
Shareholder’s Covered Shares pursuant to applicable law.
SECTION 11. Expenses. All fees, costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees,
costs and expenses.
SECTION 12. Stop Transfer Order; Legend. In furtherance of this Agreement,
concurrently herewith, each Shareholder shall, and hereby does authorize the Company or its counsel
to, notify the Company’s transfer agent that there is a stop transfer order with respect to all of
the Covered Shares of such Shareholder (and that this Agreement places limits on the voting and
transfer of such Covered Shares). The parties hereto agree that such stop transfer order shall be
removed and shall be of no further force and effect upon termination of this Agreement.
SECTION 13. Shareholder Capacity. It is understood that the Shareholder enters into
this Agreement solely in such Shareholder’s capacity as a Shareholder of the Company. Nothing
herein shall be construed as preventing a Shareholder, or a director, officer or employee of a
Shareholder or Affiliate of a Shareholder, who is an officer or director of the Company, from
fulfilling the obligations of such office (including the performance of obligations required by the
fiduciary obligations of such Shareholder, or director, officer or employee of a Shareholder or
Affiliate of a Shareholder, acting solely in his or her capacity as an officer or director of the
Company), but nothing in this Section 13 is intended to modify any of the rights or obligations
under the Merger Agreement.
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SECTION 14. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally, telecopied (which is confirmed) or sent by a
nationally recognized overnight courier service, such as FedEx (providing proof of delivery), to
the parties at the following addresses (or at such other address for a party as shall be specified
by like notice):
If to any of the Shareholders, at the address set forth opposite the name of
such Shareholder on the signature page hereto:
with a copy to:
Genelabs Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
and a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: 617-542-2241
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: 617-542-2241
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
and
If to Parent or Purchaser, to:
SmithKline ▇▇▇▇▇▇▇ Corporation
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ (FP2355)
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ (FP2355)
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Benet ▇. ▇’▇▇▇▇▇▇, Esq.
Facsimile: 212-225-3999
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Benet ▇. ▇’▇▇▇▇▇▇, Esq.
Facsimile: 212-225-3999
(b) Headings. 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.
(c) Counterparts. This Agreement may be executed and delivered (including by
facsimile transmission) in two 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. This Agreement shall become
effective with respect to a Shareholder when a counterpart hereof shall have been signed by each of
Parent, Purchaser and such Shareholder and delivered to the other such parties.
(d) Entire Agreement. This Agreement (together with the Merger Agreement and any
other documents and instruments referred to herein and therein) constitutes the entire agreement
among the parties with respect to the subject matter hereof and thereof and supersedes all other
prior agreements and understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof and thereof.. This Agreement is not intended and does not
confer upon any Person other than the parties hereto any rights hereunder.
(e) Governing Law.
(i) This Agreement 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 law thereof that would result in the application of law of any other state.
(ii) The parties agree that irreparable damage would occur 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
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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 New York State or federal court
located in the Borough of Manhattan, The City of New York, New York, this being in
addition to any other remedy to which such party is entitled at law or in equity.
In addition, each of the parties hereto (i) consents to submit itself to the
personal jurisdiction in any New York State or federal court located in the Borough
of Manhattan, The City of New York, New York in the event any dispute arises out of
this Agreement or any of 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 or proceeding relating to this Agreement or any of the
transactions contemplated by this Agreement in any court other than a New York State
or federal court located in the Borough of Manhattan, The City of New York, New
York.
(iii) EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS, INCLUDING THE OFFER AND MERGER,
CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 14(e)(iii).
(f) Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law
or otherwise) without the prior written consent of the other parties except that Parent and
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Purchaser may assign, in their sole discretion and without the consent of any other party, any
or all of their rights, interests and obligations hereunder to each other or to one or more direct
or indirect wholly-owned subsidiaries of Parent (each, an “Assignee”). 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, and the provisions of this Agreement
are not intended to confer upon any person other than the parties hereto any rights or remedies
hereunder.
(g) Severability of Provisions. If any term or provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public policy, the remaining
provisions of this Agreement shall be enforced so as to effect the original intent of the parties
as closely as possible in an acceptable manner to the end that the transactions contemplated hereby
are fulfilled to the fullest extent possible.
(h) Amendment. No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by such party.
(i) Binding Nature. This Agreement is binding upon and is solely for the benefit of
the parties hereto and their respective successors, legal representatives and assigns.
(j) Option Exercises. Nothing in this Agreement shall require a Shareholder to
exercise any option or warrant to purchase shares of Common Stock of the Company.
(k) Shareholder Obligations Several and Not Joint. The obligations of each
Shareholder hereunder shall be several and not joint and no Shareholder shall be liable for any
breach of the terms of this Agreement by any other Shareholder.
[Signature page follows]
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IN WITNESS WHEREOF, Parent, Purchaser and the Shareholders have caused this Agreement to be
duly executed and delivered as of the date first written above.
| SMITHKLINE ▇▇▇▇▇▇▇ CORPORATION | ||||||
| By | ||||||
| Title: | ||||||
| GEMSTONE ACQUISITION CORPORATION | ||||||
| By | ||||||
| Name: | ||||||
| Title: | ||||||
SIGNATURE PAGE TO TENDER AND SHAREHOLDER SUPPORT AGREEMENT
SCHEDULE A
| Name and Address | Covered Shares | |||
A-1