Exhibit 99.2
VOTING AGREEMENT
This Voting Agreement (this “
Agreement ”) is made and entered into as of
July 27, 2009, by and among T ORREY P INES T HERAPEUTICS , I NC . , a
Delaware corporation (“ TPT ”),
R APTOR
P HARMACEUTICALS C ORP . , 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:
1. Agreement to Vote
Shares .
(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).
2. Irrevocable Proxy .
(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).
3. Agreement to Retain
Shares .
(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 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.
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(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 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).
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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 . 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 he or it or any of his or its properties is
or may be bound or affected; or (ii) result in or constitute
any breach of or default under, or give to any other Person any
right of termination, amendment, acceleration or cancellation of,
or result in the creation of any encumbrance or restriction on any
of the Subject Securities pursuant to, any contract to which
Stockholder is a party or by which Stockholder or any of his or its
Affiliates or properties is or may be bound or affected.
(c) Title to Securities . As
of the date of this Agreement: (a) Stockholder holds
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