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NABI BIOPHARMACEUTICALS | JALAA Equities, LP | Third Point LLC,. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10.2
AGREEMENT
This AGREEMENT (the “Agreement”) is made and entered into as of November 10, 2006, by and between Nabi Biopharmaceuticals, a Delaware corporation (“Nabi”), Jason Aryeh (“Aryeh”) and JALAA Equities, LP (together with Aryeh, “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 Aryeh; 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 Aryeh 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 contemplat






