Exhibit 2.3
VOTING AGREEMENT
This VOTING AGREEMENT (this “
Agreement ”) is made and entered into as of
October 5, 2006, by and among Valentis, Inc., a Delaware
corporation (“ Valentis ”), Urigen
N.A., Inc., a Delaware corporation formerly known as Urigen
Holdings, Inc. (“ Urigen ”), and
(“ Stockholder ”), an individual whose business
address is c/o Urigen N.A., Inc., 875 Mahler Road,
Suite 235, Burlingame, California 94010 and who is or may
become the holder or Beneficial Owner (as defined in
Section 1(b)) of Shares (as defined in Section 1(d)) of
Urigen.
RECITALS
A.
As of the date of this Agreement, Valentis and Urigen have entered
into an Agreement and Plan of Merger (as such agreement may
hereafter be amended from time to time in conformity with the
provisions thereof (the “ Merger Agreement ”)),
which provides for the merger of a wholly-owned subsidiary of
Valentis into Urigen such that Urigen survives as a wholly-owned
subsidiary of Valentis and the stockholders of Urigen immediately
prior to the merger become the majority stockholders of Valentis
after the merger (the “ Merger ”).
B.
As an inducement and a condition to enter into the Merger
Agreement, Urigen has requested that Stockholder agree, and
Stockholder has agreed (in the Stockholder’s capacity as
such), to enter into this Agreement in order to facilitate the
consummation of the Merger and any accompanying
transactions.
AGREEMENT
NOW, THEREFORE, intending to be
legally bound, the parties hereto hereby agree as
follows:
1.
Definitions.
(a)
For the purposes of this Agreement, capitalized terms that are used
but not defined herein shall have the respective meanings ascribed
thereto in the Merger Agreement.
(b)
“ Beneficial Owner ” shall mean any Person (as
defined in Section 1(d)) who is deemed to be a beneficial
owner pursuant to Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended, except for the inclusion of
Shares that may be acquired more than sixty (60) days from the date
hereof.
(c)
“ Expiration Date ” shall mean the earlier to
occur of (i) such date and time as the Merger Agreement shall
have been validly terminated pursuant to its terms, or
(ii) such date and time as the Merger shall become consummated
in accordance with the terms and conditions set forth in the Merger
Agreement.
(d)
“ Person ” shall mean any individual, any
corporation, limited liability company, general or limited
partnership, business trust, unincorporated association or other
business organization or entity, or any governmental
authority.
(e)
“ Shares ” shall mean: (i) all securities
of Urigen (including all shares of common stock, $0.00001 par value
per share (“ Common Stock ”), all shares of
preferred stock, $0.00001 par value per share (“ Preferred
Stock ”), and all options, warrants and other rights to
acquire shares of Common Stock) beneficially owned by Stockholder
as of the date of this Agreement, and (ii) all additional
securities of Urigen (including all additional options, warrants
and other rights to acquire shares of Common Stock) of which
Stockholder acquires beneficial ownership during the period
commencing with the execution and delivery of this Agreement until
the Expiration Date.
(f)
A Person shall be deemed to have effected a “ Transfer
” of a security if such Person directly or indirectly
(i) offers for sale, sells, assigns, pledges, encumbers,
grants an option with respect to, transfers or otherwise disposes
of such security or any interest therein, or (ii) enters into
an agreement, commitment or other arrangement providing for the
sale of, assignment of, pledge of, encumbrance of, granting of an
option with respect to, transfer of or disposition of such security
or any interest therein; provided , that any exercise or
conversion of a derivative security and Preferred Stock into Common
Stock shall not constitute a Transfer for purposes of this
Agreement.
2.
Restriction on Transfer, Proxies and Non-Interference; Stop
Transfer . Except as expressly contemplated by this
Agreement, at all times during the period commencing with the
execution and delivery of this Agreement and continuing until the
Expiration Date, Stockholder shall not (except as may be
specifically required by court order), directly or indirectly,
(i) cause or permit the Transfer of any of the Shares to be
effected, or discuss, negotiate or make any offer regarding any
Transfer of any of the Shares, (ii) grant any proxies or
powers of attorney with respect to any of the Shares, deposit any
of the Shares into a voting trust or enter into a voting agreement
or other similar commitment or arrangement with respect to any of
the Shares in contravention of the obligations of Stockholder under
this Agreement, (iii) request that Urigen register the
Transfer of any certificate or uncertificated interest representing
any of the Shares, or (iv) take any action that would make any
representation or warranty of Stockholder contained herein untrue
or incorrect, or have the effect of preventing or disabling
Stockholder from performing any of Stockholder’s respective
obligations under this Agreement, other than to a signatory under
this Agreement in the case of (i), (ii) or (iii). Stockholder
hereby agrees that, in order to ensure compliance with the
restrictions referred to herein, Urigen may issue appropriate
“stop transfer” instructions to its transfer agent in
respect of the Shares.
3.
Voting Agreement . At any meeting of
Urigen’s stockholders called with respect to the following,
however called, and at every adjournment or postponement thereof,
Stockholder shall appear at such meeting, in person or by proxy, or
otherwise cause all of the Shares to be counted as present thereat
for purposes of establishing a quorum thereat, and Stockholder
shall vote, or cause to be voted (and on every action or approval
by written consent of Stockholder with respect to the following,
act, or cause to be acted, by written consent) with respect to all
of the Shares that Stockholder is entitled to vote or as to which
Stockholder has the right to direct the voting, as of the relevant
record date:
(a) in
favor of the approval of the Merger, including the issuance of
Common Stock of Urigen in connection with the conversion of Urigen
Preferred Stock into Common Stock prior thereto;
(b)
against the approval of any proposal that would result in a breach
by Urigen of the Merger Agreement; and
(c)
against any proposal made in opposition to, or in competition with,
the consummation of the Merger and the other transactions
contemplated by the Merger Agreement.
Stockholder hereby waives any
appraisal or other rights to dissent from the Merger that
Stockholder may have.
4.
Irrevocable Proxy . Concurrently with the
execution of this Agreement, Stockholder shall deliver to Urigen an
irrevocable proxy in the form attached hereto as
Exhibit B and incorporated herein by reference (the
“ Proxy ”), which shall be irrevocable to the
fullest extent permitted by applicable law, with respect to the
Shares.
5.
Representations and Warranties . Stockholder
hereby represents and warrants to Valentis and Urigen as
follows:
(a)
Ownership of Shares . All of the Shares owned by
Stockholder are listed on Exhibit A attached hereto.
Stockholder is the Beneficial Owner of all of the Shares.
Stockholder has sole
2
and/or shared voting power and the
sole and/or shared power of disposition with respect to the
Shares.
(b)
Power; Binding Agreement . Stockholder has the
legal capacity, power and authority to enter into and perform all
of Stockholder’s obligations under this Agreement. The
execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or court order to which
Stockholder is a party or is subject, including, without
limitation, any voting agreement or voting trust. This Agreement
has been duly and validly executed and delivered by Stockholder and
constitutes a valid and binding agreement of Stockholder,
enforceable against Stockholder in accordance with its
terms.
(c)
No Consents . To his, her or its knowledge, the
execution and delivery of this Agreement by Stockholder does not,
and the performance by Stockholder of his, her or its obligations
hereunder will not, require Stockholder to obtain any consent,
approval, authorization or permit of, or to make any filing with or
notification to, any Governmental Body.
6.
No Ownership Interest . Nothing contained in
this Agreement shall be deemed to vest in Valentis or Urigen any
direct or indirect ownership or incidence of ownership of or with
respect to any Shares. Except as provided in this Agreement, all
rights, ownership and economic benefits relating to the Shares
shall remain vested in and belong to Stockholder and the other
stockholders.
7.
Stockholder Notification of Acquisition of Additional Shares
. In the event (i) of any stock dividend, stock
split, recapitalization, reclassification, combination or exchange
of shares of capital stock of Urigen on, of, or affecting the
Shares, or (ii) Stockholder shall become the Beneficial Owner
of any additional shares of Common Stock or other securities
entitling the holder thereof to vote or give consent with respect
to any matter, then the terms of this Agreement shall apply to any
such additional shares of Common Stock or other securities of which
Stockholder acquires beneficial ownership immediately following the
effectiveness of the events described in clauses (i) and
(ii) of this Section 7, as though they were existing
Shares hereunder. At all times during the period commencing with
the execution and delivery of this Agreement and continuing until
the Expiration Date, Stockholder shall promptly notify Valentis and
Urigen of the number of any additional shares of Common Stock and
the number and type of any other voting securities of Urigen
acquired by Stockholder, if any, after the date hereof.
8.
Urigen Stop Transfer Instructions . At all times
commencing with the execution and delivery of this Agreement and
continuing until the Expiration Date, Urigen shall not register the
Transfer (by book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares unless such
Transfer is made pursuant to and in compliance with the terms and
conditions of this Agreement. Urigen shall instruct its transfer
agent (the “ Transfer Agent ”) not to Transfer,
at any time commencing with the execution and delivery of this
Agreement and continuing until the Expiration Date, any certificate
or uncertificated interest representing any of the Shares unless
and until the Transfer Agent has received Urigen’s consent to
effect any such Transfer.
9.
Termination .&nb
