Filed by Inhibitex, Inc. Pursuant to
Rule 425
Under the Securities Act of 1933
and Deemed Filed Pursuant to Rule 14a-12
Under the Securities Exchange Act of 1934
Subject Company: Fermavir Pharmaceuticals Inc.
Exchange Act File No. 333-116480
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:
(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 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 .
