Exhibit 10.6
VOTING AGREEMENT
T HIS V OTING A GREEMENT (this “ Agreement ”),
is made and entered into on and as of October 26, 2009, by and
between L IGAND P HARMACEUTICALS I NCORPORATED , a Delaware corporation (“
Parent ”), and the undersigned stockholder
(“ Stockholder ”) of M
ETABASIS
T HERAPEUTICS , I NC . , a
Delaware corporation (the “ Company
”).
RECITALS
A. Concurrently with the execution of this
Agreement, Parent, Moonstone Acquisition, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent (“
Merger Sub ”), the Company and David F. Hale,
as Stockholders’ Representative are entering into an
Agreement and Plan of Merger (the “ Merger
Agreement ”), pursuant to which Merger Sub will be
merged with and into the Company (the “ Merger
”). Capitalized terms used but not defined herein shall have
the meanings given to them in the Merger Agreement.
B. As of the date hereof, Stockholder is the
direct, indirect and/or beneficial owner of certain shares of
Company common stock as is indicated on the signature page to this
Agreement.
C. As a material inducement to enter into the
Merger Agreement, Parent desires Stockholder to agree, and
Stockholder is willing to agree, to vote the Shares (as defined in
Section 1.1 below), and such other shares of common
stock of the Company over which Stockholder has voting power, on
the terms and subject to the conditions set forth in this
Agreement.
In consideration of the foregoing
and the representations, warranties, covenants and agreements set
forth in this Agreement, the parties agree as follows:
1. V OTING OF S HARES .
1.1 Shares.
The term “
Shares ” shall mean all issued and outstanding
shares of Company Common Stock owned of record and/or beneficially
owned (all references herein to beneficial ownership are to
beneficial ownership as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) by Stockholder or over
which Stockholder exercises sole voting power, in each case, as of
the date of this Agreement; provided, however , Shares does
not include any Company-issued options or warrants to purchase or
rights to subscribe for or otherwise acquire any securities of the
Company (the “ Options and Warrants ”)
owned of record and/or beneficially owned by Stockholder or over
which Stockholder exercises voting power. Stockholder agrees that
any shares of common stock of the Company that Stockholder
purchases or with respect to which Stockholder otherwise acquires
beneficial ownership after the date of this Agreement and before
the termination of this Agreement pursuant to Section 5
below shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Shares as of
the date hereof.
1.2 Agreement to Vote
Shares. Stockholder
hereby covenants and agrees that during the period commencing on
the date hereof and continuing until this Agreement terminates
pursuant to Section 5 hereof, at any meeting (whether
annual or special and whether or not an adjourned or postponed
meeting) of the stockholders of the Company, however called, and in
any action by written consent of the stockholders of the Company,
Stockholder shall appear at the meeting or otherwise cause any and
all Shares to be counted as present thereat for purposes of
establishing a quorum and vote (or cause to be voted) any and all
Shares: (i) in favor of the approval of the Merger and
adoption of the Merger Agreement; (ii) against any Acquisition
Proposal or Superior Proposal; and (iii) except as otherwise
agreed to in writing in advance by Parent, against any proposal or
transaction which would reasonably be expected to
prevent or delay the consummation of the Merger
or the Merger Agreement. Stockholder further agrees not to enter
into any agreement or understanding with any person or entity the
effect of which would be materially inconsistent with or violative
of any provision contained in this Section 1.2 .
Notwithstanding anything to the contrary contained herein, nothing
in this Agreement shall be construed to limit or restrict the
Stockholder or any designee, employee, representative or affiliate
of the Stockholder who is a director or officer of the Company or
any subsidiary of the Company from acting in such person’s
capacity as a director or officer of the Company or any subsidiary
of the Company (it being understood that this Agreement shall apply
to Stockholder solely in Stockholder’s capacity as a
stockholder of the Company) or voting in Stockholder’s sole
discretion on any matter other than those matters referred to in
the first sentence of this Section 1.2 . Stockholder
hereby waives, and agrees not to assert or perfect, any
dissenters’ rights or any similar rights that it may have by
virtue of ownership of the Shares.
1.3 Irrevocable Proxy.
Concurrently with the execution of
this Agreement, Stockholder agrees to deliver to Parent a proxy in
the form attached hereto as E XHIBIT A (the “ Proxy ”), which
shall be irrevocable to the fullest extent permissible by law, with
respect to the Shares, subject to the other terms of this
Agreement.
1.4 Adjustments Upon Changes in
Capitalization. In the
event of any change in the number of issued and outstanding Shares
by reason of any stock split, reverse split, stock dividend
(including any dividend or distribution of securities convertible
into Shares), combination, reorganization, recapitalization or
other like change, conversion or exchange of shares, or any other
change in the corporate or capital structure of the Company, the
term “ Shares ” shall be deemed to refer
to and include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
2. T RANSFER AND O THER R ESTRICTIONS . Stockholder represents, covenants and agrees
that, except for the proxy granted in Section 1.3
hereof and as contemplated by this Agreement: (i) Stockholder
shall not, directly or indirectly, during the period commencing on
the date hereof and continuing until this Agreement terminates
pursuant to Section 5 hereof, offer for sale or agree
to sell, transfer, tender, assign, pledge, hypothecate or otherwise
dispose of or enter into any contract, option or other arrangement
or understanding with respect to, or consent to, the offer for
sale, sale, transfer, tender, pledge, hypothecation, encumbrance,
assignment or other disposition of, or create any Encumbrance of
any nature whatsoever with respect to, any or all of the Shares or
any interest therein; (ii) Stockholder shall not grant any
proxy or power of attorney, or deposit any Shares into a voting
trust or enter into a voting agreement or other arrangement, with
respect to the voting of Shares (each a “ Voting
Proxy ”) except as provided by this Agreement; and
(iii) Stockholder has not granted, entered into or otherwise
created any Voting Proxy which is currently (or which will
hereafter become) effective, and if any Voting Proxy has been
created, such Voting Proxy is hereby revoked. Notwithstanding the
foregoing, Stockholder may transfer or otherwise dispose of any
Shares (A) in open market resale transactions (e.g. in a
transaction in which there have been no discussions, agreements or
understandings between the seller and the buyer or their respective
agents or representatives and in connection with which no
solicitation of buyers or offers to buy has occurred) with respect
to resales of any Shares, (B) as a bona fide gift or gifts,
provided that it shall be a condition to such transfer that each
donee thereof executes and delivers to Parent (1) an agreement
with Parent in the form of this Agreement and (2) an
irrevocable proxy in the form attached hereto as E
XHIBIT A , in each case with respect to any and all
Shares so transferred and (C) to Permitted Transferees,
provided that it shall be a condition to the allowability of such
transfer that at or before the time of the transfer each Permitted
Transferee thereof executes and delivers to Parent (1) an
agreement with Parent in the form of this Agreement and (2) an
irrevocable proxy in the form attached hereto as E
XHIBIT A , in each case with respect to any and all
Shares so transferred. For purposes of this Section 2 ,
“ Permitted Transferee ” means (a) a
spouse, lineal descendant or antecedent, brother or sister, adopted
child or grandchild or the spouse of any child, adopted
child, grandchild or adopted grandchild of the
Stockholder, (b) any trust, the beneficiaries of which include
only the persons named in clause (a), or (c) any corporation,
limited liability company or partnership, the stockholders, members
and general or limited partners of which include only the persons
named in clause (a).
3. R EPRESENTATIONS AND W ARRANTIES OF S TOCKHOLDER . Stockholder represents and warrants to Parent
that:
3.1 Authority;
Validity. Stockholder has
all requisite capacity, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Stockholder and the
consummation by Stockholder of the transactions contemplated hereby
have been duly and validly authorized by all necessary action on
the part of Stockholder. This Agreement has been duly executed and
delivered by Stockholder. If this Agreement is being executed in a
representative or fiduciary capacity with respect to Stockholder,
the person signing this Agreement has full power and authority to
enter into and perform this Agreement.
3.2 Non-Contravention.
The execution, delivery and
performance of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the provisions
hereof will not, contravene, conflict with, or result in any
violation of, breach of or default by (with or without notice or
lapse of time, or both) Stockholder under, or give rise to a right
of termination, cancellation or acceleration of any obligation
under, or result in the creation of any Encumbrance upon any of the
properties or assets of Stockholder under, any provision of
(i) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to Stockholder or to
which Stockholder is a party or (ii) any judgment, order,
decree, statute, law, ordinance, injunction, rule or regulation
applicable to Stockholder or any of Stockholder’s properties
or assets, other than any such conflicts, violations, defaults,
rights, or Encumbrances that, individually or in the aggregate,
would not impair the ability of Stockholder to perform
Stockholder’s obligations hereunder or prevent, limit or
restrict in any respect the consummation of any of the transactions
contemplated hereby. There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which
Stockholder is settlor or trustee or any other person or entity,
including any Governmental Entity, whose consent, approval, order
or authorization is required by or with respect to Stockholder for
the execution, delivery and performance of this Agreement by
Stockholder or the consummation by Stockholder of the transactions
contemplated hereby.
3.3 Litigation.
As of the date hereof, there is no
action pending, or to the knowledge of Stockholder, threatened with
respect to Stockholder’s ownership of the Shares, nor is
there any judgment, decree, injunction or order of any applicable
Governmental Entity or arbitrator outstanding which would prevent
the carrying out by Stockholder of his obligations under this
Agreement or any of the transactions contemplated hereby, declare
unlawful the transactions contemplated hereby or cause such
transactions to be rescinded.
3.4 Title.
As of the date hereof, Stockholder
is the beneficial owner of the Shares indicated on the signature
page hereto, which, on and as of the date hereof, are free and
clear of any Encumbrances that, individually or in the aggregate,
would impair the ability of Stockholder to perform
Stockholder’s obligations hereunder or prevent, limit or
restrict in any respect the consummation of any of the transactions
contemplated hereby. As of the date hereof, the number of Shares,
Options and Warrants set forth on the signature page hereto are the
only Shares or options or warrants to purchase or rights to
subscribe for or otherwise acquire any securities of the Company
owned of record or beneficially owned by Stockholder or over which
Stockholder exercises voting power and, except as set forth on such
signature page, Stockholder holds no options or warrants to
purchase or rights to subscribe for or oth
