Exhibit 99.2
VOTING AGREEMENT
VOTING AGREEMENT (this “
Agreement ”), dated as of December 11, 2006, by
and among Indevus Pharmaceuticals, Inc., a Delaware corporation
(“ Parent ”), Hayden Merger Sub, Inc., a
Delaware corporation and a wholly-owned subsidiary of Parent
(“ Merger Sub ”), and the stockholder party
hereto (the “ Stockholder ”).
WITNESSETH:
WHEREAS, concurrently with the
execution and delivery of this Agreement, an Agreement and Plan of
Merger (as such agreement may be amended from time to time, the
“ Merger Agreement ”) is being entered into by
and among Parent, Merger Sub and Valera Pharmaceuticals, Inc., a
Delaware corporation (the “ Company ”), pursuant
to which Merger Sub has agreed to merge with and into the Company,
with the Company continuing as the surviving corporation (the
“ Merger ”); and
WHEREAS, as a condition to, and in
consideration for, Parent’s and Merger Sub’s
willingness to enter into the Merger Agreement and to consummate
the transactions contemplated thereby, Parent and Merger Sub have
required that the Stockholder enter into this Agreement and certain
other stockholders to enter into similar agreements.
NOW, THEREFORE, in consideration of
the foregoing and the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Definitions . For purposes
of this Agreement:
“ Company Securities
” shall mean the Company’s common stock, par value
$0.001 per share.
“ Person ” shall
mean an individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated
organization or other entity.
“ Stockholder Shares
” shall mean (i) the Existing Securities (as defined in
Section 5(a)(i) hereof) set forth on Schedule I hereto,
(ii) any shares of Company Securities distributed prior to the
termination of this Agreement in respect of the Stockholder Shares
by reason of a stock dividend, split-up, recapitalization,
reclassification, combination, merger, exchange of
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shares or otherwise and (iii) any other
shares of the Company Securities of which the Stockholder acquires
ownership, either directly or indirectly, after the date of this
Agreement and prior to the Effective Time.
“ Voting Agreement
Stockholders ” shall mean certain affiliated funds of
Sanders Morris Harris, Inc. and Psilos Group Partners II-S,
L.P.
Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to them
in the Merger Agreement.
2. Agreement to Vote Shares
.
(a) The Stockholder shall, at any
meeting of the holders of any class or classes of Company
Securities, however such meeting is called and regardless of
whether such meeting is a special or annual meeting of the
stockholders of the Company, or in connection with any written
consent of the stockholders of the Company, vote (or cause to be
voted) the Stockholder Shares, (i) in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and
the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any
actions required in furtherance thereof and hereof,
(ii) against any action, proposal or transaction or agreement
that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of
the Company contained in the Merger Agreement or of any stockholder
contained in this Agreement and (iii) against the following
actions or proposals (other than the Merger and the transactions
contemplated by the Merger Agreement): (A) any Takeover
Proposal; (B) any extraordinary corporate transaction, such as
a merger, consolidation or other business combination involving the
Company; (C) a sale, lease or transfer of a material amount of
assets of the Company or a reorganization, recapitalization,
dissolution or liquidation of the Company; (D) (I) any
change in the majority of the Company Board; (II) any material
change in the present capitalization of the Company or any
amendment of the Company Organizational Documents or similar
governing document of the Company; (III) any other material change
in the corporate structure or business of the Company; or (IV) any
other action or proposal, which in the case of matters referred to
in clauses (I), (II) or (III) above, is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone,
discourage or adversely affect the contemplated economic benefits
to Parent or Merger Sub of the Merger or the transactions
contemplated by the Merger Agreement or this Agreement or could
reasonably be expected to result in any of the conditions to the
Company’s obligations under the Merger Agreement not being
fulfilled. Each Stockholder agrees not to, and shall cause its
Affiliates not to, enter into any agreement, commitment or
arrangement with any Person the effect of which would be
inconsistent with or violative of the provisions and agreements
contained in this Section 2.
(b) The Stockholder agrees that the
obligations of the Stockholder specified in this Section 2
shall not be affected by (i) any Company Adverse
Recommendation
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Change, or (ii) any breach by
the Company of any of its representations, warranties, agreements
or covenants set forth in the Merger Agreement; provided, however,
that, in the event of a Company Adverse Recommendation Change, the
obligation of the Stockholder to vote the Stockholder Shares in the
manner set forth in Section 2(a) shall only apply to one half
of the total number of Stockholder Shares which are entitled to
vote in respect of such matter and the Stockholder shall cause the
remaining Stockholder Shares to be voted in a manner that is
proportionate to the manner in which all holders of Company
Securities (other than the Voting Agreement Stockholders) vote in
respect of such matter.
3. Grant of Irrevocable Proxy;
Appointment of Proxy .
(a) The Stockholder hereby
irrevocably grants to, and appoints Parent and any designee of
Parent, the Stockholder’s proxy and attorney-in-fact (with
full power of substitution or resubstitution), for and in the name,
place and stead of the Stockholder, to vote (or cause to be voted)
or act by written consent the Stockholder Shares held at the time
of the relevant stockholder vote as set forth in Section 2
hereof. The Stockholder will cause any record holder of Stockholder
Shares to grant substantially similar proxies as requested in
accordance with Section 8(e) hereof.
(b) The Stockholder represents that
any proxies heretofore given in respect of the Stockholder Shares
are not irrevocable, and that any such proxies are hereby
revoked.
(c) The Stockholder understands and
acknowledges that Parent and Merger Sub are entering into the
Merger Agreement in reliance upon the Stockholder’s execution
and delivery of this Agreement. The Stockholder hereby affirms that
the irrevocable proxy set forth in this Section 3 is given in
connection with the execution of the Merger Agreement, and that
such irrevocable proxy is given to secure the performance of the
duties of the Stockholder under this Agreement. The Stockholder
hereby further affirms that the irrevocable proxy is coupled with
an interest and may under no circumstances be revoked. Such
irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law (the “ DGCL ”).
The power of attorney granted by each Shareholder herein is a
durable power of attorney and shall survive the dissolution,
bankruptcy, death or incapacity of such Shareholder. The proxy and
power of attorney granted hereunder shall terminate upon the
termination of this Agreement.
4. Covenants of the
Stockholders . The Stockholder hereby agrees and covenants
that:
(a) Restrictions . Except as
may otherwise be agreed by Parent in writing and as contemplated by
the terms of this Agreement, the Stockholder shall not
(i) offer for sale, sell (including short sales), transfer,
tender, pledge, encumber, assign or otherwise
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dispose of (including by gift)
(collectively, a “ Transfer ”), or enter into
any contract, option, derivative, hedging or other agreement or
arrangement or understanding (including any profit-sharing
arrangement) with respect to, or consent to, a Transfer of, any or
all of the Stockholder Shares or (ii) permit to exist any lien
of any nature whatsoever with respect to any or all of the Subject
Shares.
(b) Restrictions on Proxies and
Voting Arrangements . Except as otherwise provided herein, the
Stockholder shall not (i) grant any proxy, power-of-attorney
or other authorization in or with respect to the Stockholder Shares
or (ii) deposit the Stockholder Shares into a voting trust or
enter into a voting agreement or arrangement with respect to the
Stockholder Shares.
(c) Stop Transfer . The
Stockholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Stockholder’s
Existing Securities (as defined in Section 6(a)(i) hereof),
unless such transfer is made in compliance with this Agreement. In
the event of any dividend or distribution, or any change in the
capital structure of the Company by reason of any non-cash
dividend, split-up, recapitalization, combination, exchange of
securities or the like, the term “Existing Securities”
shall refer to and include the Existing Securities as well as all
such dividends and distributions of securities and any securities
into which or for which any or all of the Existing Securities may
be changed, exchanged or converted.
(d) Waiver of Appraisal
Rights . The Stockholder agrees not to seek appraisal or assert
any rights of dissent from the Merger that it may have under
Section 262 of the DGCL and, to the extent permitted by
applicable Law, the Stockholder hereby waives any rights of
appraisal or rights to dissent from the Merger that it may have
under Section 262 of the DGCL.
(e) No Inconsistent
Arrangements . The Stockholder shall not take any other action
that would in any way restrict, limit or interfere with the
performance of the Stockholder’s obligations hereunder or the
transactions contemplated hereby or by the Merger
Agreement.
5. Representations and
Warranties .
(a) The Stockholder hereby
represents and warrants to Parent and Merger Sub as
follows:
(i) Ownership of Securities .
On the date hereof, the Stockholder owns, directly or indirectly,
or has the power to direct the voting of, the Company Securities
set forth next to the Stockholder’s name on Schedule I hereto
(the
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“ Existing Securities
”), and the Existing Securities are owned of record by the
Stockholder or certain of the Stockholder’s subsidiaries or
nominees (together, the “ Record Holders ”). On
the date hereof, the Existing Securities constitute all of the
shares of voting capital stock of the Company owned of record or
otherwise by such Stockholder or as to which such Stockholder has
the power to direct the voting of the shares. Each Record Holder
has sole voting power and sole power to issue instructions with
respect to the matters set forth in Section 2 hereof, sole
power of disposition, sole power of conversion, sole power (if any)
to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to
all of such Record Holder’s Existing Securities with no
limitations, qualifications or restrictions on such rights, subject
to applicable securities laws and the terms of this
Agreement.
(ii) Power; Binding Agreement
. The Stockholder has the power (or, if applicable, corporate
power) and authority to enter into and perform all of the
Stockholder’s obligations under this Agreement. The
execution, delivery and performance of this Agreement by the
Stockholder will not violate any other agreement to which the
Stockholder is a party including, without limitation, any voting
agreement, proxy arrangement, pledge agreement, shareholders
agreement, voting trust or trust agreement. This Agreement has been
duly and validly executed and delivered by the Stockholder and
constitutes a valid and binding agreement of the Stockholder,
enforceable against the Stockholder in accordance with its terms,
except as the enforceability thereof may be limited by
(A) applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect that affect the
enforcement of creditors rights generally or (B) general
principles of equity, whether considered in a proceeding at law or
in equity. There is no beneficiary or holder of a voting trust
certificate or other interest
