Exhibit 2.2
VOTING AGREEMENT
T HIS V OTING A GREEMENT ( this
“ Agreement ”) is entered into as of
August 29, 2008, by and between N
OVACEA , I NC . , a
Delaware corporation (“ Pivot ”), and
(“ Stockholder ”).
R ECITALS
A. Stockholder is a holder of record and the
“beneficial owner” (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934) of certain shares of
capital stock of Transcept Pharmaceuticals, Inc., a Delaware
corporation (the “ Company ”).
B. Pivot, Pivot Acquisition, Inc., a Delaware
corporation (“ Merger Sub ”), and the
Company are entering into an Agreement and Plan of Merger and
Reorganization of even date herewith (the “ Merger
Agreement ”) which provides (subject to the
conditions set forth therein) for the merger of Merger Sub into the
Company (the “ Merger ”).
C. In the Merger, each outstanding share of common
stock of the Company is to be converted into the right to receive
that number of shares of common stock of Pivot as set forth in
Section 1.5(a)(iii) of the Merger Agreement.
D. Stockholder is entering into this Agreement in
order to induce Pivot to enter into the Merger
Agreement.
A GREEMENT
The parties to this Agreement,
intending to be legally bound, agree as follows:
SECTION 1. C
ERTAIN D EFINITIONS
For purposes of this
Agreement:
(a) “ Company Common Stock
” shall mean the common stock, par value $0.001 per
share, of the Company.
(b) “ Company Preferred Stock
” shall mean the preferred stock, par value $0.001 per share,
of the Company.
(c) 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 Securities Exchange Act of 1934) of such
security.
(d) “ Person ” shall mean
any (i) individual, (ii) corporation, limited liability
company, partnership or other entity, or (iii) governmental
authority.
(e) “Proxy Expiration
Date” shall mean the earlier of (i) the date
upon which the Merger Agreement is validly terminated, or
(ii) the date upon which the Merger becomes
effective.
(f) “ Subject Securities ”
shall mean: (i) all securities of the Company (including all
shares of Company Common Stock and Company Preferred Stock and all
options, warrants and other rights to acquire shares of Company
Common Stock and Company Preferred Stock) Owned by Stockholder as
of the date of this Agreement; and (ii) all additional
securities of the Company (including all additional shares of
Company Common Stock and Company Preferred Stock and all additional
options, warrants and other rights to acquire shares of Company
Common Stock and Company Preferred Stock) of which Stockholder
acquires Ownership during the period from the date of this
Agreement through the Proxy Expiration Date.
(g) 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 or disposes of such security
or any interest in such security to any Person other than Pivot;
(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 other than Pivot; or
(iii) reduces such Person’s beneficial ownership of,
interest in or risk relating to such security.
(h) Capitalized terms used but not otherwise defined
in this Agreement have the meanings assigned to such terms in the
Merger Agreement.
SECTION 2. T
RANSFER OF S UBJECT S ECURITIES AND V OTING R IGHTS
2.1 Restriction on Transfer of
Subject Securities .
Subject to Section 2.3, during the period from the date of
this Agreement through the Proxy Expiration Date, 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 . During
the period from the date of this Agreement through the Proxy
Expiration Date, Stockholder shall ensure that: (a) none of
the Subject Securities is deposited into a voting trust; and
(b) no proxy is granted, and no other 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 Subject
Securities by Stockholder (a) if Stockholder is an individual
(i) to any member of Stockholder’s immediate family, or
to a trust for the benefit of Stockholder or any member of
Stockholder’s immediate family, or (ii) upon the death
of Stockholder, or (b) 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 Pivot, to be bound
by all of the terms of this Agreement.
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SECTION 3. V OTING OF S HARES
3.1 Voting Covenant
. Stockholder hereby agrees that,
prior to the Proxy Expiration Date, at any meeting of the
stockholders of the Company, however called, and in any written
action by consent of stockholders of the Company, unless otherwise
provided in the Merger Agreement or directed in writing by Pivot,
Stockholder shall cause the Subject Securities to be
voted:
(a) in favor of the Merger, the execution and
delivery by the Company of the Merger Agreement and the adoption
and approval of the Merger Agreement and the terms thereof, in
favor of each of the other actions contemplated by the Merger
Agreement, including the conversion of all Preferred Stock of the
Company into Common Stock of the Company, 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 the Company in the Merger Agreement; and
(c) against the following actions (other than the
Merger and the transactions contemplated by the Merger Agreement):
(A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company
or any subsidiary of the Company; (B) any sale, lease,
sublease, license, sublicense or transfer of a material portion of
the rights or other assets of the Company or any subsidiary of the
Company; (C) any change in a majority of the board of
directors of the Company; (D) any amendment to the
Company’s certificate of incorporation or bylaws;
(E) any material change in the capitalization of the Company
or the Company’s corporate structure; and (F) 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 Proxy Expiration Date,
Stockholder shall not enter into any agreement or understanding
with any Person to vote or give instructions in any manner
inconsistent with clause “(a)”, clause
“(b)” or clause “(c)” of the preceding
sentence.
3.2 P ROXY ; F URTHER A SSURANCES
(a) Contemporaneously with the execution of this
Agreement: (i) Stockholder shall deliver to Pivot 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 Proxy Expiration Date) with respect to the shares
referred to therein (the “ Proxy ”); and
(ii) Stockholder shall cause to be delivered to Pivot an
additional proxy (in the form attached hereto as Exhibit A)
executed on behalf of the record owner of any outstanding shares of
Company Common Stock and Company Preferred Stock that are owned
beneficially (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934), but not of record, by
Stockholder.
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(b) Stockholder shall, at Stockholder’s own
expense, perform such further acts and execute such further proxies
and other documents and instruments as may reasonably be required
to vest in Pivot the power to carry out and give effect to the
provisions of this Agreement.
(c) Stockholder shall not enter into any tender,
voting or other such agreement, or grant a proxy or power of
attorney, with respect to the Subject Securities that is
inconsistent with this Agreement or otherwise take any other action
with respect to the Subject Securities that would in any way
restrict, limit or interfere with the performance of
Stockholder’s obligations hereunder or the transactions
contemplated hereby.
SECTION 4. W
AIVER OF A PPRAISAL R IGHTS
Stockholder hereby irrevocably and
unconditionally waives, and agrees to cause to be waived and to
prevent the exercise of, any rights of appraisal, any
dissenters’ rights and any similar rights relating to the
Merger or any related transaction that Stockholder or any other
Person may have by virtue of, or with respect to, any shares of
Company Common Stock Owned by Stockholder at the Effective Time (as
defined in the Merger Agreement).
SECTION 5. N
O S OLICITATION
Stockholder hereby represents and
warrants that he or she has read Section 4.5 of the Merger
Agreement and agrees to be bound by the provisions of such
section.
SECTION 6. N
O O WNERSHIP I NTEREST
Nothing contained in this Agreement
shall be deemed to vest in Pivot any direct or indirect ownership
or incidence of ownership of or with respect to any Subject
Securities. All rights, ownership and economic benefits of and
relating to the Subject Securities shall remain vested in and
belong to Stockholder, and Pivot shall have no authority to
exercise any power or authority to direct Stockholder in the voting
of any of the Subject Securities, except as otherwise specifically
provided herein, or in the performance of Stockholder’s
duties or responsibilities as a stockholder of the
Company.
SECTION 7. R
EPRESENTATIONS
AND W ARRANTIES OF S TOCKHOLDER
Stockholder hereby represents and
warrants to Pivot as follows:
7.1 Authorization, etc . Stockholder has the
absolute and unrestricted right, power, authority and capacity to
execute and deliver this Agreement and the Proxy and to perform
Stockholder’s obligations hereunder and thereunder. This
Agreement and the Proxy have been duly executed and delivered by
Stockholder and constitute legal, valid and binding obligations of
Stockholder, enforceable against Stockholder in accordance with
their terms, subject to (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and
(ii) rules of law governing specific performance, injunctive
relief and other equitable remedies. If Stockholder is a
corporation, then Stockholder is a corporation duly organized,
validly existing and in good standing
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under the laws of the jurisdiction in which it
was organized. If Stockholder is a general or limited partnership,
then Stockholder is a partnership duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it
was organized. If Stockholder is a limited liability company, then
Stockholder is a limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction in
which it was organized.
7.2 No Conflicts or
Consents.
(a) The execution and delivery of this Agreement and
the Proxy by Stockholder do not, and the performance of this
Agreement and the Proxy by Stockholder will not: (i) conflict
with or violate any law, rule, regulation, order, decree or
judgment applicable to Stockholder or by which Stockholder or any
of Stockholder’s properties is or may be bound or affected;
or (ii) result in or constitute (with or without notice or
la
