Exhibit 99.2
VOTING AGREEMENT
This Voting Agreement (this “
Agreement ”) is made and entered into as of
July 27, 2009, by and among TORREYPINES
THERAPEUTICS,
INC., a Delaware corporation (“
TPT ”), RAPTOR PHARMACEUTICALS CORP. , a Delaware corporation (“
Raptor ”), and the undersigned stockholder of
Raptor (“ Stockholder ”). Certain
capitalized terms used in this Agreement that are not defined
herein or in Section 9 shall have the meaning given to such terms
in the Merger Agreement (as defined below).
RECITALS
WHEREAS , Stockholder is the 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 Raptor, par value $0.001 per share (“
Raptor Common Stock ”);
WHEREAS , concurrently with the execution and delivery
of this Agreement, TPT, ECP Acquisition, Inc., a Delaware
corporation and wholly owned subsidiary of TPT (“
Merger Sub ”), and Raptor are entering into an
Agreement and Plan of Merger and Reorganization (the “
Merger Agreement ”) which provides, upon the
terms and subject to the conditions set forth therein, for the
merger of Merger Sub with and into Raptor (the “
Merger ”); and
WHEREAS , as a condition and inducement to TPT’s
willingness to enter into the Merger Agreement, Stockholder has
agreed to execute and deliver this Agreement.
NOW, THEREFORE
, the parties to this Agreement,
intending to be legally bound, agree as follows:
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1.
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Agreement to Vote Shares.
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(a) Prior
to the Termination Date, at every meeting of the holders of Raptor
Common Stock (each, a “ Stockholder Meeting
” and collectively, the “ Stockholder
Meetings ”) called with respect to any of the
following, and at every adjournment or postponement thereof, and on
every action or approval by written consent of the holders of
Raptor Common Stock with respect to any of the following,
Stockholder shall vote the Subject Securities (to the extent that
such Subject Securities are entitled to vote): (i) in favor of
the Merger, the execution and delivery by Raptor of the Merger
Agreement and the adoption 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, (ii) against any action or agreement that
would result in a breach of any representation, warranty, covenant
or obligation of Raptor under the Merger Agreement, (iii) against
any proposal for any Acquisition Transaction, other than the
Merger, between Raptor and any Person other than TPT or Merger Sub
and (iv) against any change in a majority of the board of directors
of Raptor.
(b) If
Stockholder is the beneficial owner, but not the record holder, of
the Subject Securities, Stockholder agrees to take all actions
necessary to cause the record holder and any nominees to vote all
of the Subject Securities in accordance with Section
1(a).
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(a) Stockholder
hereby irrevocably (to the fullest extent permitted by Section 212
of the Delaware General Corporation Law) appoints TPT, Evelyn
Graham and Craig Johnson, and each of them, acting individually, as
the sole and exclusive attorneys and proxies of Stockholder, with
full power of substitution and resubstitution, to vote and exercise
all voting and related rights expressly provided herein (to the
fullest extent that Stockholder is entitled to do so) in accordance
with Section 1(a), prior to the Termination Date, with respect to
(i) the outstanding shares of Raptor Common Stock owned of record
by Stockholder as of the date of this Agreement and (ii) any and
all other shares of Raptor Common Stock which Stockholder may
acquire on or after the date hereof. Upon Stockholder’s
execution of this Agreement, any and all prior proxies given by
Stockholder with respect to any of its shares of Raptor Common
Stock are hereby revoked and Stockholder agrees not to grant any
subsequent proxies with respect to its shares of Raptor Common
Stock at any time prior to the Termination Date.
(b) The
proxy granted pursuant to this Section 2 (the “
Proxy ”) is irrevocable (to the extent
permitted by Section 212 of the Delaware General Corporation Law),
is coupled with an interest, and is granted in consideration of TPT
entering into the Merger Agreement.
(c) TPT,
Evelyn Graham and Craig Johnson, the attorneys and proxies named
above, and each of them, acting individually, are hereby authorized
and empowered by Stockholder, at any time prior to the Termination
Date, to act as Stockholder’s attorney and proxy to vote
Stockholder’s Raptor Common Stock, and to exercise all voting
and other rights of Stockholder with respect to Stockholder’s
Raptor Common Stock (including, without limitation, the power to
execute and deliver written consents pursuant to Section 228 of the
Delaware General Corporation Law), at every Stockholder Meeting and
in every written consent in lieu of such meeting: (i) in favor
of the Merger, the execution and delivery by Raptor of the Merger
Agreement and the adoption 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, (ii) against any action or agreement that
would result in a breach of any representation, warranty, covenant
or obligation of Raptor under the Merger Agreement, (iii) against
any proposal for any Acquisition Transaction, other than the
Merger, between Raptor and any Person other than TPT or Merger Sub
and (iv) against any change in a majority of the board of directors
of Raptor.
(d) The
Proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of Stockholder (including
any transferee of any of Stockholder’s shares of Raptor
Common Stock).
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3.
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Agreement to Retain Shares.
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(a)
Restriction on Transfer . Except as otherwise provided in
Section 3(c), during the period from the date of this Agreement
through the Termination Date, Stockholder shall not, directly or
indirectly, cause or permit any Transfer of any of the Subject
Securities to be effected.
(b)
Restriction on Transfer of Voting Rights. During the period
from the date of this Agreement through the Termination Date,
Stockholder shall ensure that: (a) none of the
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Subject Securities is deposited into
a voting trust; and (b) no proxy (other than the Proxy granted
herein) is granted, and no voting agreement or similar agreement is
entered into, with respect to any of the Subject
Securities.
(c)
Permitted Transfers . Section 3(a) shall not prohibit a
transfer of Raptor Common Stock by Stockholder upon the death of
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 TPT, to be bound by the terms
of this Agreement.
4. Waiver
of Appraisal Rights. Stockholder hereby irrevocably and
unconditionally waives any rights of appraisal, any
dissenters’ rights and any similar rights relating to the
Merger or any related transaction that Stockholder may have by
virtue of any outstanding shares of Raptor Common Stock Owned by
Stockholder.
5.
No Solicitation. Stockholder agrees that, during the period
from the date of this Agreement through the Termination Date,
Stockholder shall not, directly or indirectly: (i) solicit,
initiate, encourage, induce or knowingly facilitate the making,
submission or announcement of any Acquisition Proposal or take any
action that could reasonably be expected to lead to an Acquisition
Proposal, (ii) furnish any information regarding any Raptor
Corporation to any Person in connection with or in response to an
Acquisition Proposal or an inquiry or indication of interest that
could reasonably be expected to lead to an Acquisition Proposal,
(iii) engage in discussions or negotiations with any Person
with respect to any Acquisition Proposal, (iv) approve,
endorse or recommend any Acquisition Proposal or (v) enter
into any letter of intent or similar document or any Contract
contemplating or otherwise relating to any Acquisition Transaction;
provided , however , that prior to the Raptor
stockholders having voted their shares of Raptor Common Stock in
favor of the proposals set forth in the Required Raptor Stockholder
Vote, this Section 5 shall not prohibit Stockholder from furnishing
nonpublic information regarding any Raptor Corporation to, or
entering into discussions or negotiations with, any Person in
response to a Superior Proposal or a bona fide, unsolicited written
Acquisition Proposal made or received after the date of this
Agreement that is reasonably likely to result in a Superior
Proposal that is submitted to Raptor by such Person (and not
withdrawn) if (A) none of Raptor, Stockholder, any
Representative of Stockholder or Raptor or Raptor’s
Subsidiaries shall have violated any of the restrictions set forth
in this Section 5, (B) the board of directors of Raptor
concludes in good faith, after having taken into account the advice
of its outside legal counsel, that the failure to take such action
is reasonably likely to result in a breach of the fiduciary duties
of the board of directors under applicable law, (C) at least
two Business Days prior to furnishing any such nonpublic
information to, or entering into discussions or negotiations with,
such Person, either Raptor or Stockholder gives TPT written notice
of the identity of such Person and of Raptor’s or
Stockholder’s intention to furnish nonpublic information to,
or enter into discussions or negotiations with, such Person, and
Raptor receives from such Person an executed confidentiality
agreement containing customary limitations on the use and
disclosure of all nonpublic written and oral information furnished
to such Person by or on behalf of Raptor or Stockholder and
containing “standstill” provisions no less favorable to
Raptor than the “standstill” provisions contained in
the Confidentiality Agreement, if applicable, and (D) at least
two Business Days prior to furnishing any such nonpublic
information to such
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Person, either Raptor or Stockholder
furnishes such nonpublic information to TPT (to the extent such
nonpublic information has not been previously furnished by Raptor
or Stockholder to TPT).
6. Representations,
Warranties and Covenants of Stockholder. Stockholder hereby
represents and warrants to TPT as follows:
(a)
Due Authorization, Etc . All consents, approvals,
authorizations and orders necessary for the execution and delivery
by Stockholder of this Agreement and the Proxy have been obtained,
and Stockholder has full right, power and authority to enter into
this Agreement and the Proxy. This Agreement and the Proxy have
been duly executed and delivered by Stockholder and constitute
valid and binding agreements of Stockholder enforceable in
accordance with their terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect relating to creditors’ rights
generally and subject to general principles of equity.
(b)
No Conflict . Th