Exhibit 2.2
COMPANY VOTING
AGREEMENT
COMPANY VOTING AGREEMENT (this
“ Agreement ”) dated as of April 9, 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 9, 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
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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
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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 Stockholder does not directly
or indirectly Own any shares of capital stock or other securities
of the Company, or any option, warrant or other right to acquire
(by purchase, conversion or otherwise) any shares of capital stock
or other securities of the Company, other than the shares
and
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