Filed by Inhibitex, Inc. Pursuant to
Rule 425
Under the Securities Act of 1933
and Deemed Filed Pursuant to Rule 14a-12
Under the Securities Exchange Act of 1934
Subject Company: Fermavir Pharmaceuticals Inc.
Exchange Act File No. 333-116480
COMPANY VOTING AGREEMENT
COMPANY VOTING AGREEMENT (this “
Agreement ”) dated as of April
, 2007, by and between
INHIBITEX, INC., a Delaware corporation (“ Parent
”), and the Stockholders of FERMAVIR PHARMACEUTICALS, INC., a
Florida corporation (the “ Company ”), whose
signatures appear on the signature pages to this Agreement (each a
“ Stockholder ”). Capitalized terms used and not
otherwise defined herein shall have the meanings given to such
terms in the Merger Agreement (as defined herein).
W I T N E S S E T H:
WHEREAS, each Stockholder is a holder of record
and the “beneficial owner” (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the “ Exchange Act ”)) of certain
shares of common stock of the Company;
WHEREAS, Parent, the Company and Frost
Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Parent (“ Merger Sub ”), have
entered into an Agreement and Plan of Merger and Reorganization
dated as of April , 2007, as
may be amended in accordance with its terms (the “ Merger
Agreement ”), providing for the merger of the Company
with and into Merger Sub, with Merger Sub being the surviving
corporation and continuing as a wholly owned subsidiary of Parent
(the “ Merger ”);
WHEREAS, in the Merger, the outstanding shares
of common stock of the Company are to be converted into the right
to receive shares of common stock of Parent as specified in the
Merger Agreement; and
WHEREAS, in order to induce Parent to enter into
the Merger Agreement, each Stockholder is entering into this
Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth
herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1
Certain Definitions . For purposes of this
Agreement:
(a) The terms “ Acquisition
Inquiry ,” and “ Acquisition Proposal
” shall have the respective meanings assigned to those terms
in the Merger Agreement.
(b) “ Company Common Stock
” shall mean the common stock, par value $0.0001 per share,
of the Company.
(c) Stockholder shall be deemed to “
Own ” or to have acquired “ Ownership
” of a security if Stockholder: (i) is the record owner
of such security; or (ii) is the “beneficial
owner” (within the meaning of Rule 13d-3 under the
Exchange Act) of such security.
(d) “ Person ” shall
mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or
(iii) governmental authority.
(e) “ Subject Securities
” shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options,
warrants and other rights to acquire shares of Company Common
Stock) Owned by each Stockholder as of the date of this Agreement;
and (ii) all additional securities of the Company (including
all additional shares of Company Common Stock and all additional
options, warrants and other rights to acquire shares of Company
Common Stock) of which each Stockholder acquires Ownership during
the period from the date of this Agreement through the Voting
Covenant Expiration Date.
(f) A Person shall be deemed to have a
effected a “ Transfer ” of a security if such
Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers, hypothecates or
disposes of such security or any interest in or option on such
security to any Person other than Parent; (ii) enters into an
agreement or commitment contemplating the possible sale of, pledge
of, encumbrance of, grant of an option with respect to, transfer of
or disposition of such security or any interest therein to any
Person other than Parent; or (iii) reduces such Person’s
beneficial ownership of, interest in, control over or risk relating
to or economic consequences of ownership of such
security.
(g) “ Voting Covenant Expiration
Date ” shall mean the earlier of the date upon which the
Merger Agreement is terminated, or the date upon which the Merger
is consummated.
ARTICLE II
TRANSFER OF SUBJECT SECURITIES AND VOTING
RIGHTS
2.1
Restriction on Transfer of Subject Securities . Subject to
Section 2.3, during the period from the date of this Agreement
through the Voting Covenant Expiration Date, each Stockholder shall
not, directly or indirectly, cause or permit any Transfer of any of
the Subject Securities to be effected.
2.2
Restriction on Transfer of Voting Rights . Subject to
Section 2.3, during the period from the date of this Agreement
through the Voting Covenant Expiration Date, each Stockholder shall
ensure that: (a) none of the Subject Securities is deposited
into a voting trust; and (b) no proxy is granted, and no
voting agreement or similar agreement is entered into, with respect
to any of the Subject Securities.
2.3
Permitted Transfers . Section 2.1 shall not prohibit a
transfer of Subject Securities by any Stockholder (i) to any
member of his or her immediate family, or to a trust for the
benefit of Stockholder or any member of his or her immediate
family, (ii) upon the death of Stockholder, or (iii) if
Stockholder is a partnership or limited liability company, to one
or more partners or members of Stockholder or to an affiliated
corporation under common control with Stockholder; provided,
however, that a transfer referred to in clauses (i), (ii) or
(iii) shall be permitted only if, as a precondition to such
transfer, the transferee agrees in a writing, reasonably
satisfactory in form and substance to Parent, to be bound by the
terms of this Agreement.
ARTICLE III
VOTING OF SHARES
3.1
Voting Covenant Prior to the Voting Covenant Expiration Date
. Each Stockholder hereby agrees that, prior to the Voting Covenant
Expiration Date, at any meeting of the stockholders of the Company,
however called (and any postponement or adjournment thereof), and
in any written action by consent of stockholders of the Company,
unless otherwise directed in writing by Parent, each Stockholder
shall cause the Subject Securities to be voted, as
applicable:
(a) in favor of the Merger, the execution
and delivery by the Company of the Merger Agreement and the
adoption of the Merger Agreement and the terms thereof, in favor of
each of the other actions contemplated by the Merger Agreement and
in favor of any action in furtherance of any of the
foregoing;
(b) against any action or agreement that
would result in a breach of any representation, warranty, covenant
or obligation of the Company in the Merger Agreement;
and
(c) against the following actions (other
than the Merger, including the matters described in subsection
(a) above): (A) any extraordinary corporate transaction,
such as a merger, consolidation or other business combination
involving the Company or any subsidiary of the Company;
(B) any sale, lease or transfer of a material amount of assets
of the Company or any subsidiary of the Company; (C) any
reorganization, recapitalization, dissolution or liquidation of the
Company or any subsidiary of the Company; (D) any change in a
majority of the board of directors of the Company; (E) any
amendment to the Company’s articles of incorporation or
bylaws; (F) any material change in the capitalization of the
Company or the Company’s corporate structure; and
(G) any other action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, discourage or
adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement or this Agreement.
Prior to the Voting Covenant
Expiration Date, no Stockholder shall enter into any agreement or
understanding with any Person, other than Parent, to vote or give
instructions in any manner inconsistent with clause (a), (b), or
(c) of the preceding sentence.
3.2
Proxy; Further Assurances .
(a) Contemporaneously with the execution of
this Agreement: (i) each Stockholder shall deliver to Parent a
proxy in the form attached to this Agreement as
Exhibit A , which shall be irrevocable to the fullest
extent permitted by law (at all times prior to the Voting Covenant
Expiration Date) with respect to the shares referred to therein
(the “ Proxy ”); and (ii) each Stockholder
shall cause to be delivered to Parent an additional proxy (in the
form attached hereto as Exhibit A ) executed on behalf
of the record owner of any outstanding shares of Company Common
Stock that are owned beneficially (within the meaning of
Rule 13d-3 under the Exchange Act), but not of record, by such
Stockholder.
(b) Each Stockholder shall, at his, her or
its own expense, perform such further acts and execute such further
proxies and other documents and instruments as may reasonably be
required to vest in Parent the power to carry out and give effect
to the provisions of this Agreement.
ARTICLE IV
WAIVER OF APPRAISAL RIGHTS
Each
Stockholder hereby irrevocably and unconditionally waives, and
agrees to cause to be waived and to prevent the exercise of, any
rights of appraisal, any dissenters’ rights and any similar
rights relating to the Merger or any related transaction that such
Stockholder or any other Person may have by virtue of any
outstanding shares of Company Common Stock Owned by such
Stockholder.
ARTICLE V
NO SOLICITATION
Each
Stockholder agrees that, during the period from the date of this
Agreement through the Voting Covenant Expiration Date, no
Stockholder shall, directly or indirectly, and each Stockholder
shall ensure that none of his, her or its Representatives (as
defined in the Merger Agreement) will, directly or indirectly:
(i) initiate, solicit or knowingly encourage the making,
submission or announcement of an Acquisition Proposal or
Acquisition Inquiry or take any action that could reasonably be
expected to lead to an Acquisition Proposal or Acquisition Inquiry,
(ii) furnish to any person any nonpublic information in
connection with or in response to any Acquisition Proposal or
Acquisition Inquiry, (iii) engage in discussions or
negotiations with any person with respect to any Acquisition
Proposal or Acquisition Inquiry, (iv) approve, endorse or
recommend any Acquisition Proposal or Acquisition Inquiry, or
(v) enter into any letter of intent or similar document or any
Contract contemplating or otherwise relating to any Acquisition
Proposal or Acquisition Inquiry. Each Stockholder shall immediately
cease and discontinue, and each Stockholder shall ensure that his,
her or its Representatives immediately cease and discontinue, any
existing discussions with any Person that relate to any Acquisition
Proposal or Acquisition Inquiry.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF
STOCKHOLDER
Each
Stockholder hereby represents and warrants to Parent as
follows:
6.1
Authorization, Etc . Such Stockholder has the power and
authority to execute and deliver this Agreement and the Proxy and
to perform his, her or its obligations hereunder and thereunder.
This Agreement and the Proxy have been duly executed and delivered
by such Stockholder and constitute legal, valid and binding
obligations of such Stockholder, enforceable against such
Stockholder in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles. Such
Stockholder, if not an individual, is duly organized, validly
existing and in good standing under the laws of the jurisdiction in
which it was organized or formed.
6.2
No Conflicts or Consents .
(a) The execution and delivery of this
Agreement and the Proxy by such Stockholder does not, and the
performance of this Agreement and the Proxy by such Stockholder
will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to such
Stockholder or by which he, she or it or any of his, her or its
properties is or may be bound or affected; or (ii) result in
or constitute (with or without notice or lapse of time) any breach
of or default under, or give to any other Person (with or without
notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result (with or without notice
or lapse of time) in the creation of any encumbrance or restriction
on any of the Subject Securities pursuant to, any contract to which
such Stockholder is a party or by which such Stockholder or any of
his, her or its affiliates or properties is or may be bound or
affected.
(b) The execution and delivery of this
Agreement and the Proxy by such Stockholder does not, and the
performance of this Agreement and the Proxy by such Stockholder
will not, require any consent or approval of any Person.
6.3
Title to Securities . As of the date of this Agreement:
(a) such Stockholder Owns (free and clear of any encumbrances
or restrictions) the number of outstanding shares of Company Common
Stock set forth beneath such Stockholder’s signature on the
signature page hereof; (b) such Stockholder holds (free and
clear of any encumbrances or restrictions) the options, warrants
and other rights to acquire shares of Company Common Stock set
forth beneath such Stockholder’s signature on the signature
page hereof; and (c) such
