Exhibit 10.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of
April 18, 2005 (this “ Agreement ”), among
Orphan Medical, Inc., a Delaware corporation (the “
Company ”), Jazz Pharmaceuticals, Inc., a Delaware
corporation (“ Buyer ”), Twist Merger Sub, Inc.,
a Delaware corporation (“ Sub ”), and certain
stockholders of the Company whose names appear on
Schedule I hereto (each a “ Stockholder
” and collectively, the “ Stockholders
”).
W I T N E S S E T
H:
WHEREAS, contemporaneously with the
execution and delivery of this Agreement, the Company, Buyer and
Sub are entering into a Merger Agreement (as such agreement may
hereafter be amended from time to time, the “ Merger
Agreement ”), which provides for, upon the terms and
subject to the conditions set forth therein, the merger of a Sub
with and into the Company (as set forth in the Merger Agreement) in
exchange for a cash payment for all of the issued and outstanding
shares of capital stock of the Company (the “ Merger
”);
WHEREAS, as of the date hereof, each
Stockholder beneficially owns (as such term is defined pursuant to
Rule 13d-3(a) promulgated under the Exchange Act) the number of
shares and/or warrants to purchase the number of shares of Senior
Convertible Preferred Stock, $0.01 par value per share (the “
Senior Preferred Stock ”), Series B Convertible
Preferred Stock, $0.01 par value per share (the “ Series B
Preferred Stock ”), Series C Convertible Preferred Stock,
$0.01 par value per share (the “ Series C Preferred
Stock ”) and Series D Non-Voting Convertible Preferred
Stock, $0.01 par value per share (the “ Series D Preferred
Stock ,” together with the Senior Preferred Stock, the
Series B Preferred Stock and the Series C Preferred Stock, the
“ Company Preferred Stock ”), and Common Stock,
$0.01 par value per share (“ Company Common Stock
” and, together with Company Preferred Stock, the “
Company Capital Shares ”), of the Company set forth
opposite such Stockholder’s name on Schedule I
hereto (all such shares so owned and for which beneficial ownership
may hereafter be acquired by such Stockholder prior to the
termination of this Agreement, whether upon the exercise of
options, conversion of convertible securities, exercise of warrants
or by means of purchase, dividend, distribution or otherwise, being
referred to herein as such Stockholder’s Subject
Shares);
WHEREAS, approval of the Merger
Agreement by (i) the holders of a majority of the issued and
outstanding shares of Company Common Stock voting together with the
holders of the Senior Preferred Stock voting on an as converted
basis and (ii) the holders of a majority of the issued and
outstanding shares of Senior Preferred Stock, voting as a separate
class, is required in order to consummate the transactions
contemplated by the Merger Agreement;
WHEREAS, as a condition to the
willingness of Buyer to enter into the Merger Agreement, Buyer has
requested that each Stockholder enter into this Agreement;
and
WHEREAS, in order to induce Buyer to
enter into the Merger Agreement, each of the Stockholders is
willing to enter into this Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, Buyer, Sub,
the Company and the Stockholders hereby agree as
follows:
ARTICLE I.
DEFINITIONS
Certain capitalized terms used and
not otherwise defined herein have the meanings ascribed to them in
the Merger Agreement. Unless the context otherwise requires,
such terms shall include the singular and plural and the
conjunctive and disjunctive forms of the terms defined.
ARTICLE II.
VOTING OF SHARES
SECTION 2.1.
Agreement to
Vote . From the date hereof
until the termination of this Agreement pursuant to
Section 4.1 hereof (the “ Term ”), at every
time as the Company convenes a meeting of or otherwise seeks a vote
of, the Company’s stockholders for the purpose of approving
the Merger, each of the Stockholders hereby agrees to vote, or
cause to be voted, to the extent not voted by Buyer as appointed by
the Proxy, all of Stockholder’s Subject Shares:
(a) in
favor of the approval and adoption of the Merger Agreement and the
approval of the Merger and the transactions contemplated by the
Merger Agreement;
(b) against
approval of any proposal made in opposition to, or in competition
with, the Merger and the transactions contemplated by the Merger
Agreement; and
(c) against any
actions (other than those actions that relate to the Merger and the
transactions contemplated by the Merger Agreement) that are
intended to, or could be reasonably expected to, impair the ability
of the Company to consummate the Merger or otherwise impede,
interfere with, delay, postpone, discourage or adversely affect the
consummation of the Merger in accordance with the terms of the
Merger Agreement.
Each Stockholder further agrees not to enter
into any agreement or understanding with any person to vote or give
instructions in any manner inconsistent with or violative of the
terms of this Section 2.1.
SECTION 2.2.
Proxy;
Reliance . Each Stockholder
hereby constitutes and appoints Buyer, acting through each of Matt
Fust and Carol Gamble, each with the power to act alone and with
full power of substitution and resubstitution, at any time during
the Term, as its true and lawful attorneys-in-fact and proxies (its
“ Proxy ”), for and in its name, place and
stead, to vote such Stockholder’s Subject Shares as its
Proxy, at every annual, special, adjourned or postponed meeting of
the stockholders of the Company called for purposes of considering
whether to approve the Merger Agreement or any of the other
transactions or matters contemplated by, or directly or indirectly
affecting, the Merger Agreement or to execute a
2
written consent of stockholders in lieu of any
such meeting. Each Stockholder understands and acknowledges
that Buyer and Sub have entered into the Purchase Agreement in
reliance upon each Stockholder’s execution and delivery of
this Agreement. The parties agree that by reason of the
Merger Agreement, the Proxy is a proxy coupled with an
interest. At Buyer’s request, each Stockholder will
perform such further acts and execute such further documents as may
be required to vest in Buyer or its Representatives the sole power
to vote Stockholder’s Subject Shares with respect to the
matters set forth in Section 2.1 during the Term in accordance
with the terms of this Agreement.
THE FOREGOING PROXY AND POWER OF
ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST THROUGHOUT
THE TERM.
SECTION 2.3.
Limitation
. Each
Stockholder shall retain at all times the right to vote such
Stockholder’s Subject Shares in such Stockholder’s sole
discretion and without any other limitation on those matters other
than those set forth in Section 2.1 that are at any time or
from time to time presented for consideration by the
Company’s stockholders generally.
SECTION 2.4.
Capacity
. The
parties hereby agree that the Stockholders are executing this
Agreement solely in their capacity as stockholders of the
Company. Nothing contained in this Agreement shall limit or
otherwise affect, in any manner, the conduct or exercise of the
Stockholders’ fiduciary duties as officers or directors of
the Company, where applicable.
SECTION 2.5.
Transfer of
Subject Shares . Except as otherwise
contemplated by the Merger Agreement, from and after the date of
this Agreement until the termination of this Agreement, each
Stockholder agrees that it will be the beneficial owner
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