JOINDER AND AMENDMENT TO
AMENDED AND RESTATED VOTING AGREEMENT
THIS
JOINDER AND AMENDMENT AGREEMENT (“ Joinder Agreement ”) to
the Amended and Restated Voting Agreement dated as of February 6,
2004 (the " Agreement ") by and among Acura Pharmaceuticals,
Inc. (f/k/a Halsey Drug Co., Inc.), a New York corporation (the "
Company "), Care Capital Investments II, LP, Care Capital
Offshore Investments II, LP, Essex Woodlands Health Ventures V,
L.P., Galen Partners III, L.P. and the other signatories thereto,
is made and entered into as of November 9, 2005 by and among the
Company, Care Capital Investments II, LP, Care Capital Offshore
Investments II, LP (collectively “Care Capital”), Essex
Woodlands Health Ventures, L.P. (“Essex”), Galen
Partners International III, L.P., Galen Partners III, L.P., Galen
Employee Fund III, L.P. (collectively, “Galen”) and GCE
Holdings LLC (the “Transferee”). Capitalized terms used
herein but not otherwise defined shall have the meanings set forth
in the Agreement.
WHEREAS , Transferee is acquiring Securities from each
of Care Capital, Essex and Galen; and
WHEREAS , Section 6 of the Agreement requires each
transferee to which Securities are transferred, assigned, conveyed
or otherwise disposed to agree to be bound by the terms of the
Agreement (unless such transfer is made pursuant to an effective
registration statement under the Securities Act or through a broker
pursuant to Rule 144); and
WHEREAS , the Parties desire to amend the Agreement to
preserve the rights of Care Capital, Essex and Galen relating to
the nomination and election of Company directors following the
conveyance of Securities from each of Care Capital, Essex and Galen
to Transferee.
NOW,
THEREFORE , the
parties to this Joinder Agreement hereby agree as
follows:
A. Section 2 of the Agreement is hereby deleted and
the following inserted in its place:
“2. Election of Director Nominees
. Commencing upon the Company's next
upcoming meeting of shareholders, each Party and GCE Holdings LLC
(the " Designating Party ") agree as follows:
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(a)
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Each Party
holding Common Stock, Series A Preferred, Series B Preferred and
Series C Preferred (collectively, the " Securities ") shall
vote its Securities, and take or cause to be taken such other
actions, as may be required from time to time to (i) ensure that
the Board of Directors consists of no more than seven directors,
and (ii) elect to the Board of Directors of the Company (A) four
(4) persons designated by the Designating Party, (B) one person who
shall be the Chief Executive Officer of the Company, and (C) two
persons who shall be independent directors (as defined in Rule
4200(a)(15) of the National Association of Securities' Dealers
Listing Standards, as may be modified or supplemented)
nominated and elected to the Board of
Directors by the then current directors. Without limiting the
generality of the foregoing, at each annual meeting of the
shareholders of the Company, and at each special meeting of the
shareholders and debentureholders of the Company called for the
purpose of electing directors of the Company, and at any time at
which the shareholders and debentureholders of the Company have the
right to elect directors of the Company, in each such event, each
Party shall vote all Securities owned by them (or shall consent in
writing in lieu of a meeting of shareholders and debentureholders
of the Company, as the case may be), or take such other actions as
shall be necessary, to elect the Designating Party's designees as a
director of the Company in accordance with the preceding provisions
of this Section 2(a);
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(b)
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Each Party
shall take all actions necessary to remove forthwith the director
designated by the Designating Party when such removal is requested
for any reason, with or without cause, by the Designating Party. In
the case of the death, resignation or removal as herein provided of
a Designating Party's designee, each Party shall vote all
Securities held by it to elect another person designated by the
Designating Party pursuant to Section 2(a);
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(c)
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Each Party
hereby agrees that it will not vote any of its Securities in favor
of the removal of any director that shall have been designated by
the Designating Party, unless the Designating Party shall have
consented to such removal in writing.
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In the event
that any Party shall fail to vote the Securities held by it in
accordance with Section 2(a) and (b), such Party shall, upon such
failure to so vote, be deemed immediately to have granted to the
Designating Party, a
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