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VOTING AGREEMENT
THIS VOTING AGREEMENT (this
“
Voting Agreement ”)
is made and entered into as of February 12, 2008, by and between
the undersigned stockholder (the “
Stockholder ”)
of Cellegy Pharmaceuticals, Inc., a Delaware corporation
(“
Cellegy ”),
and Adamis Pharmaceuticals Corporation, a Delaware corporation
(“
Adamis ”).
RECITALS
A.
Adamis
and Cellegy have entered an Agreement and Plan of
Reorganization of even date herewith (the “
Merger Agreement ”),
which provides for the merger of a newly-created and wholly-owned
subsidiary of Cellegy with and into Adamis, with Adamis as the
surviving corporation (the “
Merger ”).
Capitalized terms used herein but not otherwise defined shall have
the meaning ascribed to them in the Merger Agreement.
B.
Stockholder
is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the
“
Exchange Act ”))
of such number of shares of the outstanding capital stock of
Cellegy, and shares subject to outstanding options and warrants, as
are indicated on
Exhibit A to
this Voting Agreement.
C.
In
consideration of the execution of the Merger Agreement by
Adamis and to induce Adamis to enter into the Merger
Agreement, Stockholder (in his or her capacity as such) agrees
to vote the Shares (as defined below) and other such shares of
capital stock of Cellegy over which Stockholder has voting
power so as to facilitate consummation of the
Merger.
AGREEMENT
NOW, THEREFORE, intending
to be legally bound, the parties hereto agree as
follows:
1.
Certain Definitions .
Capitalized terms not defined herein shall have the meanings
ascribed to them in the Merger Agreement. For purposes of this
Voting Agreement:
(a)
“
Expiration Date ”
shall mean the earlier to occur of (i) such date and time as the
Merger Agreement shall have been terminated pursuant to the terms
thereof, or (ii) such date and time as the Merger has been
consummated in accordance with the terms of the Merger
Agreement.
(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)
“
Shares ”
shall mean: (i) all securities of Cellegy (including all shares of
Cellegy Common Stock, and all options, warrants and other rights to
acquire shares of Cellegy Common Stock) Owned by Stockholder as of
the date of this Voting Agreement; and (ii) all additional
securities of Cellegy (including all additional shares of Cellegy
Common Stock and all additional options, warrants and other rights
to acquire shares of Cellegy Common Stock) of which Stockholder
acquires Ownership during the period from the date of this Voting
Agreement through the Expiration Date (including by way of stock
dividend or distribution, split-up, recapitalization, combination,
exchange of shares and the like).
(e)
“
Transfer ”.
A Person shall be deemed to have effected a “
Transfer ”
of a security if such person directly or indirectly: (i) sells,
pledges, encumbers, assigns, grants an option with respect to,
transfers or disposes of such security or any interest in such
security; (ii) enters into an agreement or commitment providing for
the sale of, pledge of, encumbrance of, assignment of, grant of an
option with respect to, transfer of or disposition of such security
or any interest therein; or (iii) reduces such Person’s
beneficial ownership of, interest in or risk relating to such
security.
2.
Transfer of Shares .
(a)
Transfer Restrictions .
Stockholder agrees that, during the period from the date of this
Voting Agreement through the Expiration Date, Stockholder shall not
cause or permit any Transfer of any of the Shares to be effected;
provided that, notwithstanding the foregoing, Stockholder shall not
be restricted from effecting a Transfer of any Shares to any member
of Stockholder’s immediate family or to a trust for the
benefit of Stockholder and/or any member of Stockholder’s
immediate family provided that (A) each such transferee shall have
(i) executed a counterpart of this Agreement and a proxy in the
form attached hereto as
Exhibit A (with
such modifications as Adamis may reasonably request) and (ii)
agreed in writing to hold such Shares, or such interest therein,
subject to all of the terms and conditions set forth in this
Agreement, and (B) the aggregate number of shares (whether
outstanding or underlying outstanding options and warrants) that
may be so Transferred by Stockholder may not exceed one percent
(1%) of Cellegy’s outstanding Common Stock as of the date
hereof. For purposes of this Agreement, “immediate
family” means Stockholder’s spouse, parents, siblings,
children or grandchildren.
(b)
Transfer of Voting Rights .
Stockholder agrees that, during the period from the date of this
Voting Agreement through the Expiration Date, Stockholder shall not
deposit (or permit the deposit of) any Shares in a voting trust or
grant any proxy or enter into any voting agreement or similar
agreement in contravention of the obligations of Stockholder under
this Voting Agreement with respect to any of the
Shares.
3.
Agreement to Vote Shares .
At
every meeting of the stockholders of Cellegy called, and at every
adjournment thereof, and on every action or approval by written
consent of the stockholders of Cellegy, Stockholder (in his or her
capacity as such) shall, or shall cause the holder of record on any
applicable record date to, vote the Shares:
(a)
in
favor of approval of the Merger and the adoption and approval
of the Merger Agreement, and in favor of each of the other
actions contemplated by the Merger Agreement (including,
without limitation, the Cellegy Charter Amendment, the Cellegy
Name Change Amendment and the Plan Amendment) and the Proxy
and any action required in furtherance thereof;
(b)
in
favor of any matter that could reasonably be expected to
facilitate the Merger;
(c)
against
approval of any proposal made in opposition to, or in
competition or inconsistent with, consummation of the Merger
or the transactions contemplated by the Merger Agreement
(including, without limitation, any action or agreement that
would result in a breach of any representation, warranty,
covenant or obligation of Cellegy in the Merger Agreement);
and
(d)
in
favor of waiving any notice that may have been or may be
required relating to any reorganization of Cellegy or any
subsidiary of Cellegy, any reclassification or
recapitalization of the capital stock of Cellegy or any
subsidiary of Cellegy, or any sale of assets, change of
control, or acquisition of Cellegy or any subsidiary of
Cellegy by any other person, or any consolidation or Merger of
Cellegy or any subsidiary of Cellegy with or into any other
person.
Stockholder
further agrees that if a meeting is held Stockholder shall, or
shall cause the holder of record on any applicable record date
to, appear at such meeting or otherwise cause the Shares to be
counted as present thereat for purposes of establishing a
quorum. Before the Expiration Date, the Stockholder shall not
enter into any agreement or understanding with any person to
vote or give instructions in any manner inconsistent with the
terms of this Section 3.
4.
Agreement Not to Exercise Appraisal Rights .
Stockholder hereby irrevocably and unconditionally waives, and
agrees not to exercise any rights to demand appraisal of any Shares
which may arise with respect to the Merger or any related
transaction.
5.
Directors and Officers .
Notwithstanding any provision of this Voting Agreement to the
contrary, nothing in this Voting Agreement shall limit or restrict
Stockholder from acting in Stockholder’s capacity as a
director or officer of Cellegy (it being understood that this
Voting Agreement shall apply to Stockholder solely in
Stockholder’s capacity as a stockholder of Cellegy) or voting
in Stockholder’s sole discretion on any matter other than
those matters referred to in Section 3.
6.
Irrevocable Proxy .
Concurrently with the execution of this Voting Agreement, (a)
Stockholder agrees to deliver to Adamis a proxy in the form
attached hereto as
Exhibit A (the
“
Proxy ”),
which shall be irrevocable to the fullest extent permissible by
law, with respect to the Shares, and (b) Stockholder shall cause to
be delivered to Adamis an additional proxy (in the form attached
hereto as
Exhibit A )
executed on behalf of the record owner of any Shares that are owned
beneficially (within the meaning of Rule 13d-3 under the Exchange
Act), but not of record, by Stockholder. Stockholder shall, at his,
her or its own expense, perform such further acts and execute such
further promises and other documents and instruments as may
reasonably be required to vest in Adamis the power to carry out and
give effect to the provisions of this Voting
Agreement.
7.
No Ownership Interest .
Nothing contained in this Voting Agreement shall be deemed to vest
in Adamis any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership
and economic benefits of and relating to the Shares shall remain
vested in and belong to Stockholder, and Adamis shall have no
authority to manage, direct, superintend, restrict, regulate,
govern, or administer any of the policies or operations of Cellegy
by virtue of this Voting Agreement or exercise any power or
authority to direct Stockholder in the voting of any of the Shares,
except as otherwise provided herein.
8.
No Solicitation .
Stockholder agrees that, during the period from the date of this
Agreement through the Expiration Date, Stockholder shall comply
with the provisions of Section 4.5 of the Merger
Agreement.
9.
Representations and Warranties of the Stockholder
.
(a)
Power; Binding Agreement .
Stockholder has full power, authority and capacity to execute and
deliver this Voting Agreement and the Proxy, to perform
Stockholder's obligations hereunder and to consummate the
transactions contemplated hereby and thereby. If Stockholder is a
corporation or other entity, the execution, delivery and
performance by Stockholder of this Voting Agreement and the
consummation by it of the transactions contemplated hereby have
been duly and validly authorized by Stockholder and no other
actions or proceedings on the part of Stockholder are necessary to
authorize the execution and delivery by it of this Voting Agreement
and the consummation by it of the transactions contemplated hereby.
This Voting Agreement and the Proxy have been duly executed and
delivered by Stockholder, and constitute valid and binding
obligations of Stockholder, enforceable against Stockholder in
accordance with their terms.
(b)
No Conflicts .
Except for filings under the Exchange Act, no filing with, and no
permit, authorization, consent, or approval of, any state or
federal public body or authority (“
Governmental Entity ”)
is necessary for the execution of this Voting Agreement and Proxy
by Stockholder and the consummation by Stockholder of the
transactions contemplated by this Voting Agreement and Proxy. None
of the execution and delivery of this Voting Agreement or Proxy by
Stockholder, the consummation by Stockholder of the transactions
contemplated by this Voting Agreement and Proxy or compliance by
Stockholder with any of the provisions of this Voting Agreement and
Proxy shall (i) if Stockholder is a corporation or other entity,
conflict with or result in any breach of any organizational
documents applicable to Stockholder, (ii) result in a violation or
breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement, or other
instrument or obligation of any kind to which Stockholder is a
party or by which Stockholder or any of its properties or assets
may be bound, or (iii)
violate
any order, writ, injunction, decree, judgment, order, statute,
rule, or regulation applicable to Stockholder or any of
Stockholder's properties or assets.
(c)
Ownership of Shares .
Stockholder (i) is the beneficial owner of the shares of Cellegy
Common Stock and the options and warrants to purchase shares of
Cellegy Common Stock indicated on
Exhibit A hereto,
which are free and clear of any liens, adverse claims, charges,
security interests, pledges or options, proxies, voting trusts or
agreements, understandings or agreements, or any other rights or
encumbrances whatsoever (“
Encumbrances ”)
(except any Encumbrances arising under securities laws or arising
hereunder); and (ii) does not beneficially own any securities
of Cellegy other than the shares of Cellegy Common Stock and
options and warrants to purchase shares of Cellegy Common Stock
indicated on
Exhibit A hereto.
(d)
Voting Power .
Stockholder has or will have sole voting power, sole power of
dispos
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