Exhibit 10.1
EXHIBIT 10. 1
EXECUTION VERSION
CONSENT AGREEMENT
This CONSENT AGREEMENT (this Consent Agreement), is dated as of May 17, 2011, by and
among Shire Pharmaceuticals Inc., a Delaware corporation (Parent), and certain
stockholders of Advanced BioHealing, Inc., a Delaware corporation (the Company), listed
on the signature page hereto (each, a Stockholder and, collectively, the
Stockholders). For purposes of this Consent Agreement, Parent and the Stockholders are
each a Party and collectively the Parties. Unless otherwise defined herein,
capitalized terms used but not defined herein shall have the respective meanings ascribed to such
terms in the Merger Agreement (defined below).
WHEREAS, Parent, ABH Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of
Parent (Merger Sub), the Company, solely for the purposes of Section 2.7 and Articles
III, IX and X thereof, Canaan VII L.P., a Delaware limited partnership, as the Equityholders
Representative, and solely for the purposes of Section 10.17 thereof, Shire plc, a public limited
company incorporated under the laws of Jersey, Channel Islands, propose to enter into an Agreement
and Plan of Merger dated as of the date hereof (the Merger Agreement) providing for,
among other things, the merger of Merger Sub with and into the Company (the Merger);
WHEREAS, as of the date hereof, the Stockholders are collectively the record and beneficial
holders of the shares of Company Capital Stock set forth next to their names on the signature pages
hereto (the Subject Shares);
WHEREAS, pursuant to Section 251 of the DGCL, a majority of the outstanding shares of the
Company Capital Stock (excluding the Series C-1 Preferred Stock) are required under the DGCL to
vote to approve the adoption of the Merger Agreement (the Required DGCL Approval);
WHEREAS, pursuant to Section 4 of Article IV of the Company Certificate of Incorporation, the
holders of shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred
Stock have the right to one vote for each share of Common Stock into which such shares are
convertible and are entitled to vote, together with the holders of Common Stock, on any matters
with respect to which the holders of Common Stock are entitled to vote;
WHEREAS, holders of a majority of the outstanding Company Capital Stock (excluding the Series
C-1 Preferred Stock) voting or consenting, as the case may be, on an as-converted-to Common Stock
basis are required to obtain the Required DGCL Approval;
WHEREAS, pursuant to Section 5(b) of the Company Certificate of Incorporation, in addition to
the Required DGCL Approval, approval and adoption of the Merger Agreement and the Merger requires
the affirmative vote or consent of holders of at least 60% of the outstanding shares of Series C
Preferred Stock (the Required Series C Approval and, together with the Required DGCL
Approval, the Required Company Stockholder Approval);
WHEREAS, as an inducement to Parent and Merger Sub entering into the Merger Agreement, the
Stockholders, who hold sufficient shares of Company Capital Stock to constitute
both the Required DGCL Approval and the Required Series C Approval, are entering into this
Consent Agreement pursuant to which the Stockholders shall (i) execute a written consent in respect
of all of the Subject Shares substantially in the form attached hereto as Exhibit A in
favor of the proposal to approve and adopt the Merger Agreement and the Merger (the
Consent) and (ii) agree to certain other matters, pursuant and subject to the terms and
conditions hereof;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual benefits to be
gained by the performance thereof, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, Parent and the Stockholders, intending
to be legally bound, hereby agree as follows:
Section 1. Consent. Each Stockholder covenants and agrees to, promptly following the
execution and delivery of this Consent Agreement and the Merger Agreement, consent to the approval
and adoption of the Merger Agreement and the transactions contemplated thereby (including, among
other things, the Merger) and shall deliver to the Company a Consent with respect to the Subject
Shares.
Section 2. Acknowledgement. Each Stockholder confirms and agrees that the Merger
constitutes a Sale Transaction as defined in the Company Certificate of Incorporation, and an
Approved Sale for purposes of that certain Amended and Restated Investor Rights Agreement dated
as of February 23, 2007.
Section 3. Treatment of Warrants. Each Stockholder that is a holder of Warrants agrees (i)
not to exercise such Warrants prior to the Effective Time and (ii) that, at the Effective Time and
in accordance with Section 2.6(e) of the Merger Agreement, all such Warrants shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to exist, and each
Certificate which immediately prior to the Effective Time represented such Warrants shall
thereafter represent the right to receive the Warrant Payment payable therefor and the right to
receive payments from the Escrow Account in accordance with the Escrow Agreement and Section 3.3 of
the Merger Agreement.
Section 4. Representations and Warranties. Each Stockholder represents and warrants to
Parent and Merger Sub as follows:
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Such Stockholder is the record and beneficial owner of, and has good title to, all of
the Subject Shares set forth next to its name on its signature page hereto, and there exist
no Encumbrances affecting any such Subject Shares, except as imposed by applicable Laws or
as set forth in the Company Disclosure Schedule. |
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If such Stockholder is an entity, it is duly organized, validly existing and in good
standing under the Laws of the jurisdiction of its organization. |
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The execution and delivery of this Consent Agreement by such Stockholder does not, and
the performance by such Stockholder of its obligations hereunder will not, constitute a
violation of, conflict with, result in a default (or an event which, with notice or lapse
of time or both, would result in a default) under or result in the creation of any
Encumbrance on any of its Subject Shares under, (i) any Contract or restriction of any kind
to which such Stockholder is a party or by which such Stockholder or its Subject
Shares are bound, (ii) any applicable Law affecting such Stockholder or its Subject Shares
or (iii) if such Stockholder is an entity, such Stockholders applicable organizational
documents, in each case except as would not, individually or in the aggregate, reasonably be
expected to prevent, enjoin, or materially delay or impair the performance by such
Stockholder of the its obligations under this Consent Agreement. |
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Such Stockholder has all requisite power and authority to enter into this Consent
Agreement, to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by such Stockholder of this
Consent Agreement has been duly authorized by all necessary action on the part of such
Stockholder. This Consent Agreement has been duly executed and delivered by such
Stockholder and this Consent Agreement constitutes a legally valid and binding obligation
of such Stockholder, enforceable against such Stockholder in accordance with its terms,
except as such enforceability may be limited by principles of public policy, and subject to
(i) the effect of any applicable Law of general application relating to bankruptcy,
reorganization, insolvency, or moratorium or similar Laws affecting creditors rights and
relief of debtors generally and (ii) the effect of rules of Law and general principles of
equity, including rules of Law and general principles of equity governing specific
performance, injunctive relief and other equitable remedies (regardless of whether such
enforceability is considered in a proceeding in equity or at Law). |
Section 5. Waiver of Dissenters and Appraisal Rights. Each Stockholder waives, and agrees
not to exercise, any right to dissent or appraisal or any similar provision under applicable Law in
connection with the Merger.
Section 6. Equityholders Representative. Each Stockholder confirms and agrees (i) to the
irrevocable appointment of Canaan VII L.P. as agent, attorney-in-fact and Equityholders
Representative for and on behalf of such Stockholder (in his, her or its capacity as an
Equityholder under the Merger Agreement) with all of the powers and authority contemplated by
Section 10.1 of the Merger Agreement, (ii) that the Equityholders Representative shall have full
power of substitution, to act in the name, place and stead of such Stockholder with respect to the
Escrow Agreement and Section 2.7, Article III, Article IX and Article X of the Merger Agreement and
the taking by the Equityholders Representative of any and all actions as it determines in its sole
and absolute discretion to be necessary, advisable or appropriate in order to carry out and perform
its rights and obligations under the Merger Agreement and the making of any decisions required or
permitted to be taken by the Equityholders Representative under the Merger Agreement and the
Escrow Agreement and (iii) that the terms and conditions of Section 10.1 of the Merger Agreement
shall be and are binding on such Stockholder as fully as if such Stockholder were an original
signatory to the Merger Agreement as an Equityholder thereunder. Each Stockholder agrees that
service of process on the Equityholders Representative in accordance with the Merger Agreement
shall constitute service of process on such Stockholder.
Section 7. Release. Effective as of the Closing, each Stockholder hereby releases, remises
and forever discharges the Company from any and all liabilities and obligations to such
Stockholder, whether arising prior to, on or after the Closing Date (so long as the events giving
rise to the obligation or liability occurred prior to the Closing Date) except for (a) subject to
Section 6.5 of the Merger Agreement, rights and claims for indemnification to the extent such
Stockholder is entitled to be indemnified by the Company under applicable law, its organizational
documents or agreement, (b) if such Stockholder is an employee of the Company, rights under any
Company Benefit Plan (other than any such plan that provides for equity-based compensation), rights
to earned but unpaid wages or compensation, unpaid vacation, or unreimbursed business expenses, and
(c) such Stockholders right to full and complete payment for its Subject Shares in accordance with
Articles II and III of the Merger Agreement and the Escrow Agreement or its rights to
indemnification under Article IX of the Merger Agreement. Each Stockholder expressly waives any
rights or benefits under §1542 of the Civil Code of the State of California and any similar
provisions of the Law of any other jurisdiction. §1542 states: A general release does not extend
to claims which the creditor does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have materially affected his or her
settlement with the debtor.
Section 8. Nonsolicitation. Each Stockholder hereby covenants and agrees that from the
date hereof until December 31, 2012, such Stockholder will not, and will not permit its controlled
Affiliates to, directly or indirectly solicit or hire any employee of the Company with a position
or title of Vice President (or its equivalent) or above; provided, that this Section 8
shall not be construed to prohibit such Stockholder or its controlled Affiliates from (a) making
any general solicitation of employment not specifically directed to such person or (b) soliciting
or hiring any such person who, after the Closing, has been terminated by the Company or its
Affiliates without cause or who terminates his or her employment with the Company or its Affiliates
for good reason (which, for purposes hereof, shall have the meaning given such term in any
applicable employment agreement and, if there is no applicable employment agreement, shall mean (i)
a material diminution in such persons employment duties as in effect immediately prior to the
Closing, (ii) a material reduction in annual base salary, (iii) a change in the principal work
location of over 50 miles from such persons principal work location immediately prior to the
Closing, or (iv) any material breach of an employment, severance or change in control agreement).
Section 9. Confidentiality. Each Stockholder acknowledges that the success of the Company
after the Closing depends upon the continued preservation of the confidentiality of certain
information possessed by such Stockholder, that the preservation of the confidentiality of such
information by all of the Stockholders is an essential premise of the transactions contemplated by
the Merger Agreement, and that Parent and Merger Sub would be unwilling to enter into the Merger
Agreement in the absence of this Consent Agreement (including this 9). Accordingly, each
Stockholder agrees with Parent that from and after the date hereof until the second anniversary of
the Closing Date such Stockholder will not, other than for or on behalf of Parent or its Affiliate
(including the Company), and will not permit its controlled Affiliates to, disclose or use any
confidential or proprietary information of the Company; provided, that the information
subject to the foregoing provisions of this sentence (the Confidential Information) will not
include any information that: (a) is or becomes generally available to the public other than as a
result (directly or indirectly) of a violation hereof; (b) was in such Stockholders possession and
obtained on a nonconfidential basis prior to the disclosure thereof by the Company or its
Affiliates; and (c) becomes available to such Stockholder on a nonconfidential basis from a person
other than the Company or its Affiliates who to such Stockholders knowledge is not otherwise bound
by any obligation of confidentiality with respect thereto; provided, further, that
nothing in this Section 9 will restrict any Stockholder from using
Confidential Information to the extent reasonably necessary in connection with enforcing its
rights, or defending any claims against, arising from, pertaining to or relating to the Merger
Agreement, this Consent Agreement, the Letter of Transmittal or any certificate or document
delivered pursuant to any of the foregoing.
Section 10. Indemnification Matters. Each Stockholder hereby acknowledges the
indemnification obligations of the Equityholders pursuant to Article IX of the Merger Agreement and
agrees to be bound by and to perform all obligations applicable to an Equityholder thereunder in
accordance with the terms and conditions of, and subject to all of the limitations set forth in,
Article IX of the Merger Agreement as fully as if such Stockholder were an original signatory to
the Merger Agreement as an Equityholder thereunder. If such Stockholder is entitled to
indemnification following the Effective Time under Section 6.5 of the Merger Agreement, such
Stockholder acknowledges its rights to such indemnification. Notwithstanding those rights, each
Stockholder hereby agrees that the availability of the indemnification of the Parent Indemnified
Parties by the Equityholders will be determined without regard to any right to indemnification or
contribution which such Stockholder may have in his or her capacity as a Company Indemnified Party,
and such Stockholder will not be entitled to any contribution or reimbursement from the Parent, the
Company or any of their respective Affiliates for amounts paid, owed or owing to Parent Indemnified
Parties on behalf of such Stockholder for indemnification of Parent Indemnified Parties under
Article IX of the Merger Agreement by reason of the fact that such Stockholder was a Company
Indemnified Party (whether such claim is for Damages of any kind and whether such claim is pursuant
to any Law, organizational document, Contract or otherwise). With respect to any claim brought by
a Parent Indemnified Party against such Stockholder under the Merger Agreement or this Consent
Agreement, each Stockholder expressly waives any right of subrogation, contribution, advancement,
indemnification or other claim against the Company with respect to any amounts owed or owing by
such Stockholder pursuant to the Merger Agreement or this Consent Agreement.
Section 11. Entire Agreement; No Third-Party Beneficiaries. This Consent Agreement
(together with the Consent) constitutes the entire agreement of the Parties and supersedes all
other prior agreements and understandings among the Parties, with respect to the subject matter
hereof. This Consent Agreement is for the sole benefit of the Parties to this Consent Agreement
and nothing in this Consent Agreement, express or implied, is intended to or shall confer upon any
other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by
reason of this Consent Agreement.
Section 12. Governing Law; Consent to Jurisdiction. This Consent Agreement and the
transactions contemplated hereby, and all disputes between the Parties under or related to the
Consent Agreement or the facts and circumstances leading to its execution, whether in contract,
tort or otherwise, shall be governed by, and construed in accordance with, the Laws of the State of
Delaware applicable to contracts executed in and to be performed entirely within such State,
without regard to conflict of law principles that would result in the application of any Laws other
than the Laws of the State of Delaware. Each of the Parties to this Consent Agreement hereby
irrevocably and unconditionally submits, for itself and its assets and properties, to the exclusive
jurisdiction of any Delaware State court, or Federal court of the United States of America, sitting
within the State of Delaware, and any appellate court from any thereof, in any Action arising out
of or relating to this Consent Agreement, the agreements delivered in connection with this
Consent Agreement, or the transactions contemplated hereby or thereby, or for recognition or
enforcement of any judgment relating thereto, and each of the Parties to this Consent Agreement
hereby irrevocably and unconditionally (i) agrees not to commence any such Action except in such
courts; (ii) agrees that any claim in respect of any such Action may be heard and determined in
such Delaware State court or, to the extent permitted by Law, in such Federal court; (iii) waives,
to the fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any such action or proceeding in any such Delaware State
or Federal court; and (iv) waives, to the fullest extent permitted by Law, the defense of an
inconvenient forum to the maintenance of such Action in any such Delaware State or Federal court.
Each of the Parties to this Consent Agreement hereby agrees that a final judgment in any such
Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by Law.
Section 13. Miscellaneous.
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This Consent Agreement may be amended or modified only by a written instrument executed
by all of the Parties to this Consent Agreement. Any failure of the Parties to this
Consent Agreement to comply with any obligation, covenant, agreement or condition in this
Consent Agreement may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver. No delay on the part of any
party to this Consent Agreement in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party to this Consent
Agreement of any right, power or privilege hereunder operate as a waiver of any other
right, power or privilege hereunder, nor shall any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder. Unless otherwise provided, the rights
and remedies provided for in this Consent Agreement are cumulative and are not exclusive of
any rights or remedies which the Parties to this Consent Agreement may otherwise have at
Law or in equity. |
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EACH PARTY TO THIS CONSENT AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY CLAIM OR
CONTROVERSY WHICH MAY ARISE UNDER THIS CONSENT AGREEMENT IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES, AND THEREFORE, IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS CONSENT AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN
CONNECTION WITH THIS CONSENT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
EACH PARTY TO THIS CONSENT AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS,
(II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES
SUCH WAIVERS VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO
THIS CONSENT AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13(B). |
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In the event that any one or more of the terms or provisions contained in this Consent
Agreement or in any other certificate, instrument or other document referred to in this
Consent Agreement, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other
term or provision of this Consent Agreement or any other such certificate, instrument or
other document referred to in this Consent Agreement. Any term or provision of this
Consent Agreement held invalid or unenforceable only in part, degree or within certain
jurisdictions shall remain in full force and effect to the extent not held invalid or
unenforceable to the extent consistent with the intent of the Parties as reflected by this
Consent Agreement. To the extent permitted by applicable Law, each party waives any term
or provision of Law which renders any term or provision of this Consent Agreement to be
invalid, illegal or unenforceable in any respect. |
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Neither this Consent Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the Parties to this Consent Agreement (whether by
operation of Law or otherwise) without the prior written consent of the other Parties to
this Consent Agreement, and any purported assignment or other transfer without such consent
shall be void and unenforceable, except that Parent may transfer or assign its rights and
obligations under this Consent Agreement, in whole or from time to time in part, to one or
more of its Affiliates at any time; provided, that such transfer or assignment
shall not relieve Parent of its obligations hereunder or enlarge, alter or change any
obligation of any other party hereto or due to Parent. Subject to the preceding sentence,
this Consent Agreement shall be binding upon, inure to the benefit of and be enforceable by
the Parties to this Consent Agreement and their respective successors and assigns. |
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Each of the Parties to this Consent Agreement acknowledges and agrees that the other
Parties to this Consent Agreement may be irreparably damaged in the event that any of the
terms or provisions of this Consent Agreement are not performed in accordance with their
specific terms or otherwise are breached. Therefore, notwithstanding anything to the
contrary set forth in this Consent Agreement, each of the Parties to this Consent Agreement
hereby agrees that the other Parties to this Consent Agreement may be entitled to an
injunction or injunctions to prevent breaches of any of the terms or provisions of this
Consent Agreement, and to enforce specifically the performance by such first party under
this Consent Agreement, and each party to this Consent Agreement hereby agrees to waive the
defense (and not to interpose as a defense or in opposition) in any such suit that the
other parties to this Consent Agreement have an adequate remedy at Law, and hereby agrees
to waive any requirement to post any bond in connection with obtaining such relief. The
equitable remedies described in this 13(e) shall be in addition to, and not in lieu of, any
other remedies at Law or in equity that the Parties to this Consent Agreement may elect to
pursue. |
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This Consent Agreement will automatically terminate if the Merger Agreement is
terminated prior to the Effective Time. |
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This Consent Agreement may be executed in one or more counterparts, each of which when
executed shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement. In the event that any signature is delivered by
facsimile transmission, or by e-mail delivery of a .pdf format data file, such signature
shall create a valid and binding obligation of the Party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or .pdf format
data file signature page were an original thereof. |
(Remainder of Page Intentionally Left Blank)
IN WITNESS WHEREOF, each Party has duly executed this Consent Agreement, all as of the date
first written above.
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SHIRE PHARMACEUTICALS, INC.
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By: |
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Name: |
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Title: |
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CANAAN VII L.P.
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By: |
Canaan Partners VII, LLC
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By: |
/S/
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Name: |
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Title: |
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Series B Preferred Stock: 933,509
Series C Preferred Stock: 2,811,330
WHEATLEY NEW YORK PARTNERS, L.P.
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By: |
Wheatley NY Partners, LLC, its general
partner
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By: |
/S/
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Name: |
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Title: |
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Series B Preferred Stock: 300,036
Series C Preferred Stock: 536,456
WHEATLEY PARTNERS III, L.P.
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By: |
Wheatley Partners III, LLC, its general
partner
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By: |
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Name: |
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Title: |
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Series B Preferred Stock: 139,991
Series C Preferred Stock: 276,005
WHEATLEY ASSOCIATES III, L.P.
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By: |
Wheatley Partners III, LLC, its general
partner
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By: |
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Name: |
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Title: |
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Series B Preferred Stock: 29,208
Series C Preferred Stock: 31,503
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WHEATLEY FOREIGN PARTNERS III, L.P.
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By: |
Wheatley Partners III, LLC, its general
partner
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By: |
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Name: |
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Title: |
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Series B Preferred Stock: 30,823
Series C Preferred Stock: 50,129
SAFEGUARD DELAWARE INC.
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By: |
/S/ Brian J. Sisko
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Name: |
Brian J. Sisko |
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Title: |
Vice President |
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Series C Preferred Stock: 2,212,248
Series C Preferred Stock: 779,170
CHANNEL MEDICAL PARTNERS, L.P.
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By: |
Channel Medical Management, LLC,
its general partner
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By: |
Channel Medical Advisors, Inc.,
its manager
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By: |
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Name: |
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Title: |
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Series C Preferred Stock: 691,327
HUTTON LIVING TRUST dated 12/10/96
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By: |
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Name: |
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Title: |
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Series B Preferred Stock: 4,691
Series C Preferred Stock: 19,939
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EXHIBIT A
Advanced BioHealing, Inc.
Written Consent of Stockholders
May 17, 2011
Reference is made to the Agreement and Plan of Merger, dated as of May 17, 2011 (the
Merger Agreement), by and among Shire Pharmaceuticals Inc., a Delaware corporation
(Parent), ABH Merger Sub Inc., a Delaware corporation and wholly-owned subsidiary of
Parent (Merger Sub), Advanced BioHealing, Inc., a Delaware corporation (the
Corporation), and solely for purposes of Section 2.7 and Articles III, IX and X thereof,
Canaan VII L.P., a Delaware limited partnership (the Equityholders Representative), and
solely for the purposes of Section 10.17 thereof, Shire plc, a public limited company incorporated
under the laws of Jersey, Channel Islands, an executed copy of which is attached hereto as
Exhibit A, and the Consent Agreement by and among Parent and the Stockholders, as defined
below. Unless otherwise defined herein, capitalized terms used but not defined herein shall have
the respective meanings ascribed to such terms in the Merger Agreement.
The undersigned, being stockholders of the Corporation (the Stockholders) holding
the shares of the Company Capital Stock set forth next to their name on the signature page hereto
(the Subject Shares), which constitute both: (i) at least a majority of the outstanding
Company Capital Stock (excluding the Series C-1 Preferred Stock) on an as-converted-to Common Stock
basis and (ii) at least 60% of the shares of Series C Preferred Stock, hereby consent to and adopt,
pursuant to Section 228 of the DGCL, the following resolutions:
WHEREAS, the Stockholders have notified the Board of Directors (the Board) of the
Corporation that the Purchasers and the Junior Holders (each as defined in that certain Amended and
Restated Investor Rights Agreement dated as of February 23, 2007 (the Shareholders
Agreement)) have determined to initiate and consummate an Approved Sale (as defined in the
Shareholders Agreement) in accordance with Section 3.1 of the Shareholders Agreement;
WHEREAS, it is contemplated that, subject to the terms and conditions set forth in the Merger
Agreement, Merger Sub will be merged with and into the Corporation (the Merger) with the
Corporation continuing as the surviving corporation of the Merger; and
WHEREAS, the Board has unanimously (i) approved and declared advisable the Merger Agreement,
(ii) determined that the transactions contemplated by the Merger Agreement are advisable, fair to
and in the best interests of the holders of outstanding shares of Company Capital Stock, (iii)
recommended the approval and adoption of the Merger Agreement and the transactions contemplated
thereby, including without limitation, the Merger, to the Stockholders and (iv) directed that the
Merger Agreement be submitted to the Stockholders for their approval and adoption.
NOW, THEREFORE, BE IT RESOLVED, that each Stockholder signing below hereby votes in favor of,
consents to, and adopts, approves, ratifies and confirms, the Merger Agreement, and each of the
other transactions, agreements, documents and deliveries contemplated by the Merger Agreement,
including without limitation, the Merger, the form, terms and amount of the Merger Consideration
and the nomination and appointment of the Equityholders Representative.
Each Stockholder executing this Consent and acting in accordance with Section 5(a)(viii) of
Article IV(B) of the Company Certificate of Incorporation hereby votes in favor of, consents to,
and adopts, approves, ratifies and confirms, the management incentive plan pursuant to which
eligible participants may receive bonuses upon the closing of the Merger, which management
incentive plan is intended to (a) maximize stockholder value by retaining key employees through the
closing of the Merger, (b) create incentives for management to consummate the Merger thus
maximizing stockholder value, and (c) fairly compensate the Corporations key employees for past
contributions to the Corporation.
Each Stockholder executing this Consent understands and acknowledges that by executing this
Consent such Stockholder is waiving any right to dissent or appraisal or any similar provision
under the DGCL that it may have with respect to the transactions contemplated by the Merger
Agreement.
Each Stockholder executing this Consent represents and warrants to the Corporation, Parent and
Merger Sub that it is familiar with the terms and conditions of the transactions contemplated by
the Merger Agreement by virtue either of its participation in the negotiations regarding the Merger
Agreement or the provision to it of detailed descriptions thereof and has been given the
opportunity to ask questions of, and receive answers from, the Corporation concerning the terms and
conditions of the Merger Agreement.
Each Stockholder executing this Consent that is a director, officer, employee or agent of the
Corporation represents and warrants to the Corporation, Parent and Merger Sub that it is executing
this Consent voluntarily and not as a condition to the continuation of his or her employment with
the Corporation and that such director, officer, employee or agent has not been threatened with any
adverse treatment by the Corporation if he or she did not execute this Consent.
The action taken by this Consent shall have the same force and effect as if taken at a meeting
of stockholders of the Corporation, duly called and constituted pursuant to the DGCL. This Consent
may be signed in any number of counterparts, including without limitation by facsimile, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
This Consent shall be irrevocable, and any vote, consent or other action by each Stockholder
executing this Consent that is not in accordance with this Consent shall be considered null and
void; provided, that notwithstanding anything else to the contrary herein, this Consent shall
terminate and be of no further force and effect upon termination of the Merger Agreement with no
further Liability or obligation of any Stockholder hereunder. Each Stockholder executing this
Consent shall not enter into any agreement or understanding with any person prior to the
termination of the Merger Agreement to consent, vote, give instructions or take any other action in
a manner inconsistent with this Consent.
Parent shall be a third party beneficiary hereunder, with the power of enforcement.
(Remainder of Page Intentionally Left Blank)
IN WITNESS WHEREOF, the Stockholders have signed this Consent as of the 17th day of
May 2011.
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CANAAN VII L.P.
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By: |
Canaan Partners VII, LLC
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By: |
/S/
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Name: |
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Title: |
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Series B Preferred Stock: 933,509
Series C Preferred Stock: 2,811,330
WHEATLEY NEW YORK PARTNERS, L.P.
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By: |
Wheatley NY Partners, LLC, its general
partner
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By: |
/S/
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Name: |
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Title: |
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Series B Preferred Stock: 300,036
Series C Preferred Stock: 536,456
WHEATLEY PARTNERS III, L.P.
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By: |
Wheatley Partners III, LLC, its general
partner
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By: |
/S/
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Name: |
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Title: |
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Series B Preferred Stock: 139,991
Series C Preferred Stock: 276,005
WHEATLEY ASSOCIATES III, L.P.
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By: |
Wheatley Partners III, LLC, its general
partner
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By: |
/S/
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Name: |
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Title: |
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Series B Preferred Stock: 29,208
Series C Preferred Stock: 31,503
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WHEATLEY FOREIGN PARTNERS III, L.P.
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By: |
Wheatley Partners III, LLC, its general partner
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By: |
/S/
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Name: |
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Title: |
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Series B Preferred Stock: 30,823
Series C Preferred Stock: 50,129
SAFEGUARD DELAWARE INC.
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By: |
/S/ Brian J. Sisko
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Name: |
Brian J. Sisko |
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Title: |
Vice President |
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Series C Preferred Stock: 2,212,248
Series C Preferred Stock: 779,170
CHANNEL MEDICAL PARTNERS, L.P.
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By: |
Channel Medical Management, LLC,
its general partner
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By: |
Channel Medical Advisors, Inc.,
its manager
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By: |
/S/
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Name: |
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Title: |
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Series C Preferred Stock: 691,327
HUTTON LIVING TRUST dated 12/10/96
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By: |
/S/
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Name: |
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Title: |
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Series B Preferred Stock: 4,691
Series C Preferred Stock: 19,939 |
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Pursuant to the rules of the U.S. Securities and Exchange Commission, the attachment to
Exhibit A to the Consent Agreement has not been filed herewith. Safeguard agrees to furnish
supplementally a copy of such attachmenxt to the U.S. Securities and Exchange Commission
upon request.