Exhibit 10.1
VOTING
AGREEMENT
VOTING AGREEMENT,
dated as of April 18, 2005 (this “ Agreement
”), among Orphan Medical, Inc., a Delaware corporation (the
“ Company ”), Jazz Pharmaceuticals, Inc., a
Delaware corporation (“ Buyer ”), Twist Merger
Sub, Inc., a Delaware corporation (“ Sub ”), and
certain stockholders of the Company whose names appear on
Schedule I hereto (each a “ Stockholder
” and collectively, the “ Stockholders
”).
W
I T N E S S E T H:
WHEREAS,
contemporaneously with the execution and delivery of this
Agreement, the Company, Buyer and Sub are entering into a Merger
Agreement (as such agreement may hereafter be amended from time to
time, the “ Merger Agreement ”), which provides
for, upon the terms and subject to the conditions set forth
therein, the merger of a Sub with and into the Company (as set
forth in the Merger Agreement) in exchange for a cash payment for
all of the issued and outstanding shares of capital stock of the
Company (the “ Merger ”);
WHEREAS, as of the
date hereof, each Stockholder beneficially owns (as such term is
defined pursuant to Rule 13d-3(a) promulgated under the Exchange
Act) the number of shares and/or warrants to purchase the number of
shares of Senior Convertible Preferred Stock, $0.01 par value per
share (the “ Senior Preferred Stock ”), Series B
Convertible Preferred Stock, $0.01 par value per share (the “
Series B Preferred Stock ”), Series C Convertible
Preferred Stock, $0.01 par value per share (the “ Series C
Preferred Stock ”) and Series D Non-Voting Convertible
Preferred Stock, $0.01 par value per share (the “ Series D
Preferred Stock ,” together with the Senior Preferred
Stock, the Series B Preferred Stock and the Series C Preferred
Stock, the “ Company Preferred Stock ”), and
Common Stock, $0.01 par value per share (“ Company Common
Stock ” and, together with Company Preferred Stock, the
“ Company Capital Shares ”), of the Company set
forth opposite such Stockholder’s name on
Schedule I hereto (all such shares so owned and for
which beneficial ownership may hereafter be acquired by such
Stockholder prior to the termination of this Agreement, whether
upon the exercise of options, conversion of convertible securities,
exercise of warrants or by means of purchase, dividend,
distribution or otherwise, being referred to herein as such
Stockholder’s Subject Shares);
WHEREAS, approval
of the Merger Agreement by (i) the holders of a majority of the
issued and outstanding shares of Company Common Stock voting
together with the holders of the Senior Preferred Stock voting on
an as converted basis and (ii) the holders of a majority of the
issued and outstanding shares of Senior Preferred Stock, voting as
a separate class, is required in order to consummate the
transactions contemplated by the Merger Agreement;
WHEREAS, as a
condition to the willingness of Buyer to enter into the Merger
Agreement, Buyer has requested that each Stockholder enter into
this Agreement; and
WHEREAS, in order
to induce Buyer to enter into the Merger Agreement, each of the
Stockholders is willing to enter into this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound
hereby, Buyer, Sub, the Company and the Stockholders hereby agree
as follows:
ARTICLE I.
DEFINITIONS
Certain
capitalized terms used and not otherwise defined herein have the
meanings ascribed to them in the Merger Agreement. Unless the
context otherwise requires, such terms shall include the singular
and plural and the conjunctive and disjunctive forms of the terms
defined.
ARTICLE II.
VOTING OF SHARES
SECTION 2.1.
Agreement to Vote . From the date hereof until the
termination of this Agreement pursuant to Section 4.1 hereof
(the “ Term ”), at every time as the Company
convenes a meeting of or otherwise seeks a vote of, the
Company’s stockholders for the purpose of approving the
Merger, each of the Stockholders hereby agrees to vote, or cause to
be voted, to the extent not voted by Buyer as appointed by the
Proxy, all of Stockholder’s Subject Shares:
(a) in favor of the approval and
adoption of the Merger Agreement and the approval of the Merger and
the transactions contemplated by the Merger Agreement;
(b) against approval of any proposal
made in opposition to, or in competition with, the Merger and the
transactions contemplated by the Merger Agreement; and
(c) against any actions (other than
those actions that relate to the Merger and the transactions
contemplated by the Merger Agreement) that are intended to, or
could be reasonably expected to, impair the ability of the Company
to consummate the Merger or otherwise impede, interfere with,
delay, postpone, discourage or adversely affect the consummation of
the Merger in accordance with the terms of the Merger
Agreement.
Each Stockholder
further agrees not to enter into any agreement or understanding
with any person to vote or give instructions in any manner
inconsistent with or violative of the terms of this
Section 2.1.
SECTION 2.2.
Proxy; Reliance . Each Stockholder hereby constitutes
and appoints Buyer, acting through each of Matt Fust and Carol
Gamble, each with the power to act alone and with full power of
substitution and resubstitution, at any time during the Term, as
its true and lawful attorneys-in-fact and proxies (its “
Proxy ”), for and in its name, place and stead, to
vote such Stockholder’s Subject Shares as its Proxy, at every
annual, special, adjourned or postponed meeting of the stockholders
of the Company called for purposes of considering whether to
approve the Merger Agreement or any of the other transactions or
matters contemplated by, or directly or indirectly affecting, the
Merger Agreement or to execute a
2
written consent of
stockholders in lieu of any such meeting. Each Stockholder
understands and acknowledges that Buyer and Sub have entered into
the Purchase Agreement in reliance upon each Stockholder’s
execution and delivery of this Agreement. The parties agree
that by reason of the Merger Agreement, the Proxy is a proxy
coupled with an interest. At Buyer’s request, each
Stockholder will perform such further acts and execute such further
documents as may be required to vest in Buyer or its
Representatives the sole power to vote Stockholder’s Subject
Shares with respect to the matters set forth in Section 2.1
during the Term in accordance with the terms of this
Agreement.
THE FOREGOING PROXY AND POWER
OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST THROUGHOUT
THE TERM.
SECTION 2.3.
Limitation . Each Stockholder shall retain at all
times the right to vote such Stockholder’s Subject Shares in
such Stockholder’s sole discretion and without any other
limitation on those matters other than those set forth in
Section 2.1 that are at any time or from time to time
presented for consideration by the Company’s stockholders
generally.
SECTION 2.4.
Capacity . The parties hereby agree that the
Stockholders are executing this Agreement solely in their capacity
as stockholders of the Company. Nothing contained in this
Agreement shall limit or otherwise affect, in any manner, the
conduct or exercise of the Stockholders’ fiduciary duties as
officers or directors of the Company, where applicable.
SECTION 2.5.
Transfer of Subject Shares . Except as otherwise
contemplated by the Merger Agreement, from and after the date of
this Agreement until the termination of this Agreement, each
Stockholder agrees that it will be the beneficial owner of all of
such Stockholder’s Subject Shares and will hold such Subject
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