Exhibit 2.3
VOTING AGREEMENT
T HIS V OTING A GREEMENT ( this
“ Agreement ”) is entered into as of
August 29, 2008, by and between T
RANSCEPT
P HARMACEUTICALS , I NC . , a
Delaware corporation (“ Merger Partner
”), and
(collectively, the “ 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
common stock of Novacea, Inc., a Delaware corporation (the “
Company ”).
B. The Company, Pivot Acquisition, Inc., a Delaware
corporation (“ Merger Sub ”), and Merger
Partner 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
Merger Partner (the “ Merger
”).
C. In the Merger, each outstanding share of common
stock of Merger Partner is to be converted into the right to
receive that number of shares of common stock of the Company as set
forth in Section 1.5(a)(iii) of the Merger
Agreement.
D. Stockholder is entering into this Agreement in
order to induce Merger Partner 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) 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.
(c) “ Person ” shall mean
any (i) individual, (ii) corporation, limited liability
company, partnership or other entity, or (iii) governmental
authority.
(d) “Proxy Expiration
Date” shall mean the earlier of (i) the date
upon which the Merger Agreement is terminated, or (ii) the
date upon which the Merger becomes effective.
(e) “ Subject Securities ”
shall mean: (i) all securities of the Company (including all
shares of Company Common Stock and all options, warrants and other
rights to acquire shares of Company Common 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 all additional options, warrants
and other rights to acquire shares of Company Common Stock) of
which Stockholder acquires Ownership during the period from the
date of this Agreement through the Proxy Expiration
Date.
(f) 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; (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 or risk relating to such
security.
(g) 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 Merger Partner, 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 Merger
Partner, Stockholder shall cause the Subject Securities to be voted
(to the extent such Subject Securities may be so 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 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 Merger Partner 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
Merger Partner 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 that are owned
beneficially (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934), but not of record, by
Stockholder.
(b) Stockholder shall perform such further acts and
execute such further proxies and other documents and instruments as
may reasonably be required to vest in Merger Partner the power to
carry out and give effect to the provisions of this
Agreement.
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(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. N
O S OLICITATION
Stockholder hereby represents and
warrants that he, she or it has read Section 4.5 of the Merger
Agreement and agrees to be bound by the provisions of such section
to the extent applicable to Stockholder.
SECTION 5. N
O O WNERSHIP I NTEREST
Nothing contained in this Agreement
shall be deemed to vest in Merger Partner 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 Merger Partner 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 6. R
EPRESENTATIONS
AND W ARRANTIES OF S TOCKHOLDER
Stockholder hereby represents and
warrants to Merger Partner as of the date hereof as
follows:
6.1 Authorization, etc
. Stockholder has the requisite
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 and validly existing
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 and validly existing 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 and validly existing under the laws of the
jurisdiction in which it was organized.
6.2 No Conflicts or
Consents.
(a) To the Stockholder’s knowledge (but
without having conducted any independent investigation), the
execution and delivery of this Agreement and the Proxy by
Stockholder do not, and the performance of this Agreement and the
Proxy by
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Stockholder will not: (i) conflict with or
violate any material 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
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 material Contract to which Stockholder is a party
or by which Stockholder or any of Stockholder’s affiliates or
properties is or may be bound or affected.
(b) 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, require any
consent or approval of any Person. The execution and delivery of
any additional proxy pursuant to Section 3.2(a)(ii) with
respect to any shares of Company Common Stock that are owned
beneficially but not of record by Stoc
