This
STOCKHOLDERS’ AGREEMENT (this “Agreement”), is
dated as of May 18, 2009, among Takeda America Holdings, Inc.,
a New York corporation (the “Parent”) and the
stockholders listed on the signature pages hereto (each a
“Stockholder” and collectively, the
“Stockholders”).
WHEREAS, Parent,
Jade Subsidiary Corporation, a Delaware corporation and a wholly
owned Subsidiary of the Parent (the “Purchaser”), and
IDM Pharma, Inc., a Delaware corporation (the
“Company”), are entering into an Agreement and Plan of
Merger, dated as of the date hereof (as it may be amended from time
to time in accordance with its terms, the “Merger
Agreement”), providing for, among other things, Purchaser to
commence a cash tender offer (the “Offer”) to acquire
all of the outstanding shares of common stock, $0.01 par value per
share, of the Company (the “Company Common Stock”)
followed by the subsequent merger of Purchaser with and into the
Company with the Company surviving the merger as a wholly owned
Subsidiary of the Parent, in each case, on the terms and subject to
the conditions set forth in therein (capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to such
terms in the Merger Agreement); and
WHEREAS, as of the
date hereof, each Stockholder is the beneficial owner of the number
of shares of Company Common Stock set forth, and in the manner
reflected, on Attachment A hereto (the “Owned
Shares”); and
WHEREAS, as a
condition to Parent and Purchaser’s willingness to enter into
and perform its obligations under the Merger Agreement, Parent and
Purchaser have required that each Stockholder agree, and each
Stockholder has agreed, (i) on the terms and conditions
described herein, to tender in the Offer (and not withdraw) all of
such Stockholders’ Owned Shares as well as any shares of
Company Common Stock acquired by such Stockholder after the
execution of this Agreement (all of which, after so acquired, shall
constitute “Owned Shares”), whether upon the exercise
of options, warrants, conversion of convertible securities or
otherwise, and (ii) to take the other actions described
herein; and
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable
consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows:
1.1
Agreement to Tender . During the Support Period (as defined
below), each Stockholder hereby agrees that, no later than the
expiration date of the Offer, such Stockholder shall
(i) deliver to the depositary designated in the Offer
(A) a letter of transmittal with respect to such
Stockholder’s Owned Shares complying with the terms of the
Offer, (B) certificates representing such Stockholder’s
Owned Shares or an “agent’s message” in the case
of a book-entry transfer of any uncertificated Owned Shares and
(C) all other documents or instruments required to be
delivered pursuant to the terms of the Offer, and/or
(ii) instruct such Stockholder’s broker or such other
person who is the holder of record of any of such
Stockholder’s Owned Shares to so tender such Owned Shares in
the Offer pursuant to the terms and conditions of the
Offer. During
the Support Period, each Stockholder hereby agrees not to withdraw
any of such Stockholder’s Owned Shares after such Owned
Shares have been tendered in the Offer. The term “Support
Period” means (x) in the case of any Stockholder who is
a director or officer of the Company as of the date hereof, the
period commencing on the date hereof and continuing until the
termination of this Agreement pursuant to Section 6.1,
(y) in the case of the Stockholders identified on
Attachment A with an “*”,the period commencing
on the date hereof and continuing until the first to occur of
(a) the Specified Time, (b) the Outside Date, (c) a
Company Adverse Recommendation Change, (d) the receipt by the
Company or the Company Board, or the public announcement of, a
Superior Offer (as defined below) or (e) the termination of
this Agreement pursuant to Section 6.1 and (z) in the
case of any other Stockholder not described in clauses (x) and (y),
the period commencing on the date hereof and continuing until the
first to occur of (a) the Specified Time, (b) the Outside
Date, (c) a Company Adverse Recommendation Change or
(d) the termination of this Agreement pursuant to
Section 6.1. The term “Superior Offer” means any
unsolicited, bona fide written proposal made by a third party to
acquire all or substantially all the equity securities or all or
substantially all of the assets of the Company, pursuant to a
tender or exchange offer, a merger, consolidation or a sale of its
assets, (i) at a per share price that is higher than the per
share price of the Offer Consideration and (ii) that is
reasonably capable of being completed on the terms proposed, taking
into account all financial, regulatory, legal and other aspects of
such proposal; provided , however , that no
Acquisition Proposal shall be deemed to be a Superior Offer if any
financing required to consummate the transaction is not
committed.
2.
Representations and Warranties of Stockholders . Each
Stockholder hereby represents and warrants, severally and not
jointly, to Parent as follows:
2.1
Due Organization . Such Stockholder, if a corporation or
other entity, has been duly organized, is validly existing and is
in good standing under the laws of the state of its formation or
organization, except where the failure to be so organized, in valid
existence or in good standing, individually or in the aggregate,
would not be reasonably expected to have a material adverse effect
on such Stockholder’s ability to perform its obligations
under this Agreement in a timely manner.
2.2
Power; Due Authorization; Binding Agreement . Such
Stockholder has full legal capacity, power and authority to execute
and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance
with its terms, except to the extent that such enforceability
(i) may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors’
rights generally, and (ii) is subject to general principles of
equity.
2.3
Ownership of Shares . On the date hereof, the Owned Shares
set forth opposite such Stockholder’s name on Attachment
A hereto are owned of record or beneficially by such
Stockholder in the manner reflected thereon, free and clear of any
claims, liens, encumbrances and security interests except for those
arising under the federal securities laws and as contemplated by
this Agreement. On the date hereof, such Stockholder does not own
of record or beneficially any voting securities of the Company
(“Voting Shares”) other than the
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Owned Shares.
As of the date hereof such Stockholder has, and as of the
expiration of the Offer, such Stockholder will have, sole voting
power and sole dispositive power with respect to all of the Owned
Shares owned by such Stockholder; provided that in the case
of the Stockholders identified on Attachment A with an
“*”, such Stockholders may transfer among themselves
voting power and dispositive power with respect to the Owned Shares
owned by any of them.
2.4
No Conflicts . The execution and delivery of this Agreement
by such Stockholder does not, and the performance of the terms of
this Agreement by such Stockholder will not, and the consummation
by such Stockholder of the transactions contemplated hereby will
not, (a) require such Stockholder to obtain the consent or
approval of, or make any filing with or notification to, any
governmental or regulatory authority, domestic or foreign,
(b) require the consent or approval of any other person
pursuant to any agreement, obligation or instrument binding on such
Stockholder or its properties and assets, (c) conflict with or
violate any organizational document or law, rule, regulation,
order, judgment or decree applicable to such Stockholder or
pursuant to which any of its or its affiliates’ respective
properties or assets are bound or (d) violate any other
agreement to which such Stockholder or any of its affiliates is a
party including any voting agreement, stockholders agreement,
irrevocable proxy or voting trust, except for, in the case of each
of clauses (a) through (d), (i) filings, authorizations,
notifications, consents or approvals as may be required under the
Exchange Act, and (ii) where the occurrence of any of the
foregoing, individually or in the aggregate, would not reasonably
be expected to have a material adverse effect on such
Stockholder’s ability to perform its obligations under this
Agreement in a timely manner. Such Stockholder’s Voting
Shares are not, with respect to the voting or transfer thereof,
subject to any other agreement, including any voting agreement,
stockholders agreement, irrevocable proxy or voting
trust.
2.5
Acknowledgment . Such Stockholder understands and
acknowledges that each of Parent and Purchaser is entering into the
Merger Agreement in reliance upon such Stockholder’s
execution, delivery and performance of this Agreement.
3.
Representations and Warranties of Parent . Parent hereby
represents and warrants to the Stockholders as follows:
3.1
Power; Due Authorization; Binding Agreement . Parent is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation. Parent has
full corporate 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 and the consummation by Parent of the transactions
contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of Parent, and no other
proceedings on the part of Parent are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by
Parent and constitutes a valid and binding agreement of Parent,
except to the extent that such enforceability (i) may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to creditors’ rights generally,
and (ii) is subject to general principles of
equity.
3.2
No Conflicts . The execution and delivery of this Agreement
by Parent does not, the performance of the terms of this Agreement
by Parent will not, and the
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consummation by
Parent of the transactions contemplated hereby will not,
(a) require Parent to obtain the consent or approval of, or
make any filing with or notification to, any governmental or
regulatory authority, domestic or foreign or (b) conflict with
or violate any organizational document or law, rule, regulation,
order, judgment or decree applicable to Parent or pursuant to which
any of its or its Subsidiaries’ respective assets are
bound.
3.3
Acknowledgement; Funds . Parent understands and acknowledges
that the Stockholders are entering into this Agreement in reliance
upon Parent’s execution, delivery and performance of the
Merger Agreement. Parent has available cash resources in an amount
sufficient to consummate the Offer and the Merger.
4.
Certain Covenants of the Stockholders . Each Stockholder
hereby covenants and agrees, severally and not jointly, with Parent
as follows:
4.1
Restriction on Transfer, Proxies and Non-Interference . Each
Stockholder hereby agrees, during the Support Period, at any time
prior to the Specified Time, not to (a) other than as may be
required by law or court order, sell, transfer, pledge, encumber
(other than the encumbrances set forth in this Agreement), assign
or otherwise dispose of, or enter into any agreement (other than
this Agreement) or option with respect to the sale, transfer,
pledge, encumbrance, assignment or other disposition of, or
limitation on the voting rights of, any of the Owned Shares (any
such action, a “Transfer”), provided that nothing in
this Agreement shall prohibit such Stockholder from tendering any
Owned Shares in the Offer, voting in favor of adoption of the
Merger Agreement, or from exercising any options or warrants to
purchase Owned Shares; and provided , further , that
each Stockholder who is not a director or executive officer of the
Company as of the date hereof shall be permitted to distribute
Owned Shares to its general partners, limited partners or
Affiliates if and only if such Stockholder and its general
partners, limited partners or Affiliates enter into an agreement
with Parent in a form reasonably acceptable to Parent providing
(x) a po
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