Exhibit 2.3
PARENT VOTING
AGREEMENT
THIS PARENT VOTING
AGREEMENT ( this “
Agreement ”) is entered into as of April
9, 2007, by and between FERMAVIR PHARMACEUTICALS, INC. , a
Florida corporation (the “ Company ”),
and certain Stockholders of INHIBITEX, INC. , a Delaware
corporation (“ Parent ”), 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 Parent.
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 the 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.
WHEREAS, in order to induce the
Company 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)
“ Parent Common
Stock ” shall mean the common stock, par value $0.001
per share, of Parent.
(b)
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.
(c)
“ Person ”
shall mean any (i) individual, (ii) corporation, limited liability
company, partnership or other entity, or (iii) governmental
authority.
(d)
“ Subject
Securities ” shall mean: (i) all securities of
Parent (including all shares of Parent Common Stock and all
options, warrants and other rights to acquire shares of Parent
Common Stock) Owned by each Stockholder as of the date of this
Agreement; and (ii) all additional securities of the Parent
(including all additional shares of Parent Common Stock and all
additional options, warrants and other rights to acquire shares of
Parent Common Stock) of which each Stockholder acquires Ownership
during the period from the date of this Agreement through the
Voting Covenant Expiration Date.
(e)
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 (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; 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.
(f)
“ 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 Parent Common Stock 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 this sentence shall be permitted
only if, as a precondition to such transfer, the transferee agrees
in a writing, reasonably satisfactory in form and substance to the
Company, 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 Parent, however called (and any postponement or
adjournment thereof), and in any written action by consent of
stockholders of Parent, unless otherwise directed in writing by the
Company, each Stockholder shall cause the Subject Securities to be
voted, as applicable:
2
(a)
in favor of the issuance of
Parent’s Common Stock to the stockholders of the Company
pursuant to the terms of the Merger Agreement and the Parent Plan
Increase 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 Parent in the Merger Agreement; and
(c)
against the following actions (other
than the Merger and the Parent Plan Increase, including the matters
described in subsection (a) above): (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business
combination involving Parent or Merger Sub; (B) any reorganization,
recapitalization, dissolution or liquidation of Parent or Merger
Sub; (C) any change in a majority of the board of directors of
Parent; (D) any material change in the capitalization of Parent or
Parent’s corporate structure (except as described in
subsection (a) above); and (E) 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 the Company, 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 the
Company 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 the Company an additional proxy (in the form
attached hereto as Exhibit A ) executed on behalf of the
record owner of any outstanding shares of Parent 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 the Company the power to carry
out and give effect to the provisions of this Agreement.
ARTICLE IV
RESERVED
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Each Stockholder hereby represents
and warrants to the Company as follows:
5.1.
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
3
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.
5.2.
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.
5.3.
Title to Securities
. As of the date of this
Agreement: (a) such Stockholder holds of record (free and clear of
any encumbrances or restrictions) the number of outstanding shares
of Parent 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 Parent 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 Parent, or any option, warrant or other right to acquire (by
purchase, conversion or otherwise) any shares of capital stock or
other securities of Parent, other than the shares and options,
warrants and other rights set forth beneath such
Stockholder’s signature on the signature page
hereof.
5.4.
Accuracy of
Representations .
The representations and warranties contained in this Agreement are
accurate in all material respects as of the date of this Agreement,
will be accurate in all material respects at all times through the
Voting Covenant Expiration Date and will be accurate in all
material respects as of the date of the consummation of the Merger
as if made on that date.
ARTICLE VI
ADDITIONAL COVENANTS OF STOCKHOLDER
6.1.
Further Assurances
. From time to time and
without additional consideration, each Stockholder shall (at such
Stockholder’s sole expense) execute and deliver, or cause to
be executed and delivered, such additional tra
