TENDER AND SUPPORT AGREEMENT
Exhibit
2
This
TENDER AND SUPPORT AGREEMENT, dated as of May 21, 2009 (this “Agreement”), is by
and among Horizon BioMedical Ventures, LLC, a Delaware limited liability company
(“Stockholder”),
Xxxxxxx & Xxxxxxx, a New Jersey corporation (“Parent”), and Kite
Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent
(“Purchaser”). Capitalized
terms used but not defined herein have the meanings assigned to them in the
Agreement and Plan of Merger, dated as of the date of this Agreement (together
with any amendments or supplements thereto, the “Merger Agreement”),
by and among Parent, Purchaser and Cougar Biotechnology, Inc., a Delaware
corporation (the “Company”).
RECITALS
WHEREAS,
Stockholder beneficially owns (i) the shares of common stock of the
Company, par value $0.0001 per share (“Common Stock”), set
forth on Schedule
A (the “Schedule A Shares”)
and/or (ii) the warrants to purchase shares of Common Stock, set forth on Schedule A (the
“Schedule A
Warrants”);
WHEREAS,
concurrently with the execution and delivery of this Agreement, Parent,
Purchaser and the Company are entering into the Merger Agreement, which provides
for, among other things, the making of a tender offer (such offer, as it may be
amended from time to time as permitted by the Merger Agreement, the “Offer”) by Purchaser
to purchase all of the issued and outstanding shares of Common Stock at a price
of $43.00 per Share (such amount or any higher amount per Share that may be paid
pursuant to the Offer being hereafter referred to as the “Offer
Price”);
WHEREAS,
following the Acceptance Time and upon the terms and subject to the conditions
set forth in the Merger Agreement, Purchaser will be merged with and into the
Company with the Company as the surviving corporation (the “Merger”), in
accordance with the General Corporation Law of the State of Delaware, whereby
each issued and outstanding share of Common Stock not owned directly or
indirectly by Parent, Purchaser or the Company (other than Dissenting Shares)
will be converted into the right to receive the Merger Consideration in cash,
without interest and subject to any applicable withholding taxes;
and
WHEREAS,
as an inducement to and condition to Parent’s and Purchaser’s willingness to
enter into the Merger Agreement, Parent and Purchaser have required that
Stockholder enter into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants,
representations, warranties and agreements set forth herein, and intending to be
legally bound, the parties agree as follows:
Section
1. Certain
Definitions. The following capitalized terms, as used in this
Agreement, shall have the meanings set forth below:
“Agreement Period”
means the period beginning on the date of this Agreement and ending on the
Termination Time.
“beneficial ownership”
of any security by any Person means “beneficial ownership”
of such security as determined pursuant to Rule 13d-3 under the Exchange Act,
including all securities as to which such Person has the right to acquire,
without regard to the 60-day period set forth in such rule. The terms
“beneficially
owned” and “beneficial owner”
shall have correlative meanings.
“Permitted Transferee”
means, with respect to any Stockholder, (i) 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 Stockholder,
(ii) any charitable organization described in Section 170(c) of the
Code, (iii) any trust, the beneficiaries of which include only the Persons
named in clause (i) or (ii), (iv) any corporation, limited liability
company or partnership, the stockholders, members and general or limited
partners of which include only the Persons named in clause (i) or (ii), or
(v) if Stockholder is a partnership or limited liability company, one or more
partners or members of Stockholder or an affiliated corporation under common
control with Stockholder.
“Shares” means
(i) Stockholder’s Schedule A Shares and (ii) all shares of Common
Stock of which Stockholder acquires beneficial ownership during the Agreement
Period, including any shares of Common Stock acquired by means of purchase,
dividend or distribution, or issued upon the exercise of any warrants or
options, or the conversion of any convertible securities or
otherwise.
“Warrants” means
(i) Stockholder’s Schedule A Warrants and (ii) all warrants of which
Stockholder acquires beneficial ownership during the Agreement Period, which
warrants are convertible into, or exchangeable or exercisable for, shares of
Common Stock from the Company.
(a) Agreement to
Tender.
(i) Unless
this Agreement shall have been terminated in accordance with Section 13(d),
Stockholder shall (i) validly tender or cause to be tendered in the Offer
all of Stockholder’s Shares (excluding for purposes of this Section 2(a) any
of Stockholder’s Shares that are the subject of unexercised options to purchase
Common Stock granted or awarded under any of the Company’s stock plans or
unexercised Warrants) pursuant to and in accordance with the terms of the Offer
(including the tender of all certificates, documents or instruments required to
be delivered pursuant to the terms of the Offer), as promptly as practicable
(but no later than the close of business on the tenth (10th)
business day) following the commencement of the Offer, or if Stockholder has not
received the requisite offer documents by such time, within two (2) business
days following receipt of such documents but in any event prior to the date of
expiration of the Offer, free and clear of any Liens whatsoever on title,
transfer, or exercise of any rights of a stockholder in respect of such Shares,
(ii) not withdraw its Shares, or cause its Shares to be withdrawn, from the
Offer at any time, unless and until this Agreement shall have been terminated in
accordance with Section 13(d) and
(iii) duly tender to Purchaser during any “subsequent offering period” (as
defined by Rule 14d-11 under the Exchange Act) provided by Purchaser in
accordance with the terms of the Offer all of the Stockholder’s Shares, if any,
which shall have been issued after the expiration of the Offer.
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(ii) If the Offer is
terminated or withdrawn by Purchaser, or the Merger Agreement is terminated
prior to the purchase of the Shares in the Offer, Parent and Purchaser shall
promptly return, and shall cause any depository acting on behalf of Parent and
Purchaser to return, all tendered Shares to the registered holders of the Shares
tendered in the Offer (and in connection with the foregoing, the Purchaser will
direct the depository to so return such tendered Shares within three business
days of any such termination or withdrawal).
(b) [Intentionally
Omitted.]
Section
3. Documentation and
Information. Stockholder (a) consents to and authorizes
the publication and disclosure by Parent and Purchaser of Stockholder’s identity
and holding of Shares and Warrants, the nature of Stockholder’s commitments,
arrangements and understandings under this Agreement (including, for the
avoidance of doubt, the disclosure of this Agreement) and any other information,
in each case, that Parent or Purchaser determines based on advice of counsel is
required to be disclosed by applicable Law in any press release, the Offer
Documents, the Proxy Statement (including all schedules and documents filed with
the SEC), or any other disclosure document in connection with the Offer, the
Merger and any transactions contemplated by the Merger Agreement and
(b) agrees to promptly give to Parent and Purchaser any information it may
reasonably require for the preparation of any such disclosure
documents. Stockholder agrees to promptly notify Parent and Purchaser
of any required corrections with respect to any information supplied by
Stockholder specifically for use in any such disclosure document, if and to the
extent that any such information shall have become false or misleading in any
material respect.
Section
4. Voting
Agreement. During the Agreement Period, Stockholder hereby
irrevocably and unconditionally agrees that at any meeting (whether annual or
special and whether or not an adjourned or postponed meeting) of the holders of
Common Stock, however called (each, a “Company Stockholders
Meeting”), or in connection with any written consent of the holders of
Common Stock, Stockholder shall:
(b) vote
(or cause to be voted) all of Stockholder’s Shares that are entitled to be voted
(the “Vote
Shares”), or deliver a written consent (or cause a written consent to be
delivered) with respect to all of Stockholder’s Vote Shares, in each case, to
the fullest extent that Stockholder’s Vote Shares shall be entitled to be voted
at the time of any vote or action by written consent:
(i) in
favor of the (A) approval and adoption of the Merger Agreement, the Merger
and each of the other actions contemplated by the Merger Agreement, and,
(B) without limitation of the preceding clause (A), approval of any
proposal to adjourn or postpone the Company Stockholders Meeting to a later date
if there are not sufficient votes for approval and adoption of the Merger
Agreement on the date on which the Company Stockholders Meeting is held;
and
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(ii) against
(A) any action (including any amendment to the Company Certificate or
Company By-Laws, as in effect on the date hereof), agreement or transaction that
would reasonably be expected to frustrate the purposes of, impede, hinder,
interfere with, nullify, prevent, delay or adversely affect the consummation of
the transactions contemplated by the Merger Agreement, including the Offer, (B)
any Competing Proposal and any action in furtherance of any Competing Proposal,
(C) any merger, acquisition, sale, consolidation, reorganization,
recapitalization, extraordinary dividend, dissolution, liquidation or winding up
of or by the Company, or any other extraordinary transaction involving the
Company (other than the Merger) and (D) any action, proposal, transaction
or agreement that would reasonably be expected to result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
Stockholder under this Agreement or, to the Stockholder’s knowledge, of the
Company under the Merger Agreement.
Section
5. Irrevocable
Proxy. Stockholder hereby revokes (or agrees to cause to be
revoked) any proxies that it has heretofore granted. Stockholder
hereby irrevocably appoints Parent as attorney-in-fact and proxy for and on
behalf of Stockholder, for and in the name, place and stead of Stockholder, to:
(a) attend any and all Company Stockholder Meetings, (b) vote, express
consent or dissent or issue instructions to the record holder to vote
Stockholder’s Shares in accordance with the provisions of Section 4(b) at
any and all Company Stockholder Meetings or in connection with any action sought
to be taken by written consent of the Company’s stockholders without a meeting
and (c) grant or withhold, or issue instructions to the record holder to
grant or withhold, consistent with the provisions of Section 4, all
written consents with respect to the Shares at any and all Company Stockholder
Meetings or in connection with any action sought to be taken by written consent
without a meeting. Parent agrees not to exercise the proxy granted
herein for any purpose other than the purposes described in this
Agreement. The foregoing proxy shall be deemed to be a proxy coupled
with an interest, is irrevocable (and as such shall survive and not be affected
by the death, incapacity, mental illness or insanity of Stockholder, as
applicable) until the end of the Agreement Period and shall not be terminated by
operation of Law or upon the occurrence of any other event other than the
termination of this Agreement pursuant to Section
13(d). Stockholder authorizes such attorney and proxy to
substitute any other Person to act hereunder, to revoke any substitution and to
file this proxy and any substitution or revocation with the Secretary of the
Company. Stockholder hereby affirms that the proxy set forth in this
Section 5 is
given in connection with and granted in consideration of and as an inducement to
Parent and Purchaser to enter into the Merger Agreement and that such proxy is
given to secure the obligations of the Stockholder under Section
4. The proxy set forth in this Section 5 is executed
and intended to be irrevocable, subject, however, to its automatic termination
upon the termination of this Agreement pursuant to Section
13(d). Parent covenants and agrees with Stockholder that
Parent will exercise the foregoing proxy consistent with the provisions of Section
4.
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Section
6. Representations and
Warranties of Stockholder. Stockholder represents and warrants
to each of Parent and Purchaser as follows (it being understood that, except
where expressly stated to be given or made as of the date hereof only, the
representations and warranties contained in this Agreement shall be made as of
the date hereof, as of the date of each Company Stockholders Meeting, as of the
date of any applicable action taken by written consent of the Company’s
stockholders and as of the Acceptance Time):
(a) Organization. Stockholder,
if it is a corporation, partnership, limited liability company, trust or other
entity, is duly organized, validly existing and in good standing under the Laws
of the jurisdiction in which it is incorporated or constituted.
(b) Authorization. If
Stockholder is not an individual, it has full corporate, limited liability
company, partnership or trust power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. If Stockholder is an individual, he
or she has full legal capacity, right and authority to execute and deliver this
Agreement and to perform his or her obligations hereunder and to consummate the
transactions contemplated hereby. To the extent applicable, the
execution, delivery and performance by Stockholder of this Agreement 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
(and its board of directors or similar governing body, as applicable), and no
other actions or proceedings on the part of Stockholder (or its board of
directors or similar governing body, as applicable) are necessary to authorize
the execution and delivery by Stockholder of this Agreement and the consummation
by Stockholder of the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Stockholder and
constitutes a valid and legally binding obligation of Stockholder, enforceable
against Stockholder in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar Laws relating to or affecting creditors’ rights generally and
general equitable principles (whether considered in a proceeding in equity or at
law).
(c) No
Violation.
(i) The
execution and delivery of this Agreement by Stockholder does not, and the
performance by Stockholder of Stockholder’s obligations hereunder and the
consummation by Stockholder of the transactions contemplated hereby will not,
(i) conflict with, or result in any violation or breach of, or constitute a
default (with or without notice or lapse of time, or both) under, or give rise
to a right of, or result by its terms in the, termination, amendment,
cancellation or acceleration of any obligation or the loss of a material benefit
under, or to increased, additional, accelerated or guaranteed rights or
entitlements of any Person under, or create any obligation to make a payment to
any other Person under, or result in the creation of a Lien on, or the loss of,
any of the properties or assets of Stockholder (including Stockholder’s Shares
or Warrants) pursuant to (A) if Stockholder is not an individual, any provision
of its articles of incorporation, bylaws or similar organizational documents or
(B) any contract, trust, commitment, agreement, understanding, arrangement,
obligation or restriction of any kind (each, a “Contract”) to which
Stockholder is a party or by which any of Stockholder’s Shares or Warrants is
bound, or (ii) violate any Law applicable to Stockholder, in each case,
except as would not, individually or in the aggregate, reasonably be expected to
prevent, delay, impair or otherwise adversely affect the ability of Stockholder
to perform its obligations hereunder or consummate the transactions contemplated
hereby.
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(ii) No
consent, approval, order, authorization or permit of, or registration,
declaration or filing with or notification to, any Governmental Entity or any
other Person is required by or with respect to Stockholder in connection with
the execution and delivery of this Agreement by Stockholder or the performance
by Stockholder of Stockholder’s obligations hereunder, except for the filing
with the SEC of any Schedules 13D or 13G or amendments to Schedules 13D or 13G
and filings under Section 16 of the Exchange Act and filings under the HSR Act,
as may be required in connection with this Agreement and the transactions
contemplated hereby.
(d) Ownership of
Shares. Stockholder is, and (except with respect to any
Schedule A Shares Transferred (as hereinafter defined) in accordance with Section 8(b)) at all
times during the Agreement Period will be, the beneficial owner of, and have
good and marketable title to, Stockholder’s Schedule A Shares and Schedule A
Warrants, other than as such beneficial ownership or title may be effected by
the terms of this Agreement. As of the date hereof, Stockholder’s
Schedule A Shares and Schedule A Warrants constitute all of the Shares and
Warrants beneficially owned by Stockholder (other than shares beneficially owned
in the form of Company Options or restricted stock but only to the extent such
shares remain unvested, restricted or unexercised, as the case may
be). Other than as provided in this Agreement, Stockholder has, and
(except with respect to any Shares Transferred in accordance with Section 8(b)) at
all times during the Agreement Period will have, with respect to Stockholder’s
Shares and Warrants, the sole power, directly or indirectly, to vote, dispose
of, exercise and convert, as applicable, such Shares and Warrants, and to demand
or waive any appraisal rights or issue instructions pertaining to such Shares
with respect to the matters set forth in this Agreement, in each case with no
limitations, qualifications or restrictions on such rights, and, as such, has,
and (except with respect to any Shares Transferred in accordance with Section 8(b)) at
all times during the Agreement Period will have, the complete and exclusive
power to, directly or indirectly, (A) issue (or cause the issuance of)
instructions with respect to the matters set forth in Section 4,
(B) agree to all matters set forth in this Agreement and (C) demand
and waive appraisal or dissent rights. As of the date hereof,
Stockholder’s Schedule A Shares are issued and outstanding and entitled to be
voted at the Company Stockholder Meeting and, other than Stockholder’s Schedule
A Warrants, Stockholder does not beneficially own any warrants, options or other
rights to acquire any shares of Common Stock. Stockholder’s Schedule A Shares
and Schedule A Warrants and all other Shares and Warrants of which Stockholder
acquires beneficial ownership during the Agreement Period, shall at all times be
free and clear of any Liens, proxies, powers of attorney, voting trusts or
agreements (other than Liens or proxies created by this
Agreement). Except as provided in this Agreement, there are no
agreements or arrangements of any kind, contingent or otherwise, to which
Stockholder is a party obligating Stockholder to Transfer or cause to be
Transferred, any of Stockholder’s Shares. Except pursuant to this
Agreement, no Person has any contractual or other right or obligation to
purchase or otherwise acquire any of Stockholder’s Shares.
(e) Absence of
Litigation. With respect to Stockholder, as of the date
hereof, there is no action, suit, investigation or proceeding pending against,
or, to the knowledge of Stockholder, threatened against or affecting,
Stockholder or any of its properties or assets (including Stockholder’s Shares
or Warrants) that could reasonably be expected to impair the ability of
Stockholder to perform its obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
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(f)
Opportunity to Review;
Reliance. Stockholder has had the opportunity to review the
Merger Agreement and this Agreement with counsel of its own
choosing. Stockholder understands and acknowledges that Parent and
Purchaser are entering into the Merger Agreement in reliance upon Stockholder’s
execution, delivery and performance of this Agreement.
(g) Finders’
Fees. No investment banker, broker, finder or other
intermediary is entitled to a fee or commission from Parent, Purchaser or the
Company in respect of this Agreement based upon any arrangement or agreement
made by or on behalf of Stockholder in its capacity as such.
Section
7. Representations and
Warranties of Parent and Purchaser. Each of Parent and
Purchaser hereby, severally and not jointly, represents and warrants to
Stockholder as follows:
(a) Organization. Such
party is an entity duly organized, validly existing and in good standing under
the Laws of the jurisdiction in which it is incorporated, and it has all
requisite corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder and consummate the transactions
contemplated hereby, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement.
(b) Authorization. This
Agreement has been duly authorized, executed and delivered by each such party,
and constitutes a valid and binding obligation of such party enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar Laws
relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law).
Section
8. No Proxies for or Liens on
Shares; Transfers.
(a) Except
pursuant to the terms of this Agreement, during the Agreement Period,
Stockholder shall not without the prior written consent of Parent, directly or
indirectly, (i) grant any proxies, powers of attorney, rights of first
offer or refusal, or enter into any voting trust or voting agreement or
arrangement with respect to any of the Shares, (ii) sell (including short
sell), assign, transfer, tender, pledge, encumber, grant a participation
interest in, hypothecate or otherwise dispose of (including by gift) (each, a
“Transfer”) any
of Stockholder’s Shares or Warrants, (iii) otherwise permit any Liens to be
created on any of Stockholder’s Shares or Warrants, or (iv) enter into any
Contract (including any derivative, hedging or other agreement), option or other
arrangement (including any profits sharing arrangement) or understanding with
respect to the direct or indirect Transfer of any of Stockholder’s Shares or
Warrants. Without limiting the foregoing, Stockholder shall not take
any other action that would in any way restrict, limit or interfere in any
material respect with the performance of Stockholder’s obligations hereunder or
the transactions contemplated by the Merger Agreement.
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(b) Notwithstanding
the foregoing, Stockholder shall have the right to Transfer its Shares to a
Permitted Transferee of Stockholder if and only if such Permitted Transferee
shall have first agreed in writing, in a manner acceptable in form and substance
to Parent, to be bound by this Agreement as a Stockholder.
(c) Stockholder
shall not request that the Company register the Transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of
Stockholder’s Shares, unless such Transfer is made in compliance with this
Agreement. Stockholder hereby authorizes each of Parent and Purchaser
to direct the Company to impose stop orders to prevent the Transfer of any
Shares on the books of the Company in violation of this Agreement.
Section
9. Waiver of Appraisal
Rights. Stockholder hereby irrevocably waives any and all
rights it may have as to appraisal, dissent or any similar or related matter
with respect to any of Stockholder’s Shares that may arise with respect to the
Merger or any of the transactions contemplated by the Merger
Agreement. Notwithstanding Section 13(d), in the
event the Acceptance Time occurs, this Section 9 shall
survive the Acceptance Time indefinitely.
Section
10. Notices of Certain
Events. Stockholder shall promptly notify Parent of any
development occurring after the date hereof that causes, or that would
reasonably be expected to cause, any breach of any of the representations and
warranties of Stockholder set forth in this Agreement.
Section
11. Further
Assurances. Parent and Stockholder will each execute and
deliver, or cause to be executed and delivered, all further documents and
instruments and use their respective reasonable best efforts to take, or cause
to be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable under applicable Laws to perform their respective
obligations under and consummate the transactions contemplated by this
Agreement.
Section
12. Certain
Adjustments. In the event of a stock split, stock dividend or
distribution, or any change in the Common Stock by reason of a stock split,
reverse stock split, recapitalization, combination, merger, consolidation,
reorganization, reclassification, readjustment, exchange of shares or the like,
the terms “Schedule A
Shares” and “Shares” shall be
deemed to refer to and include such shares as well as all such stock dividends
and distributions and any securities into which or for which any or all of such
shares may be changed or exchanged or which are received in the
transaction.
Section
13. Miscellaneous.
(a) Notices. All
notices and other communications to any party hereunder shall be in writing and
shall be deemed duly given if delivered personally (notice deemed given upon
receipt), sent by telecopier or facsimile (notice deemed given upon confirmation
of receipt), sent by nationally recognized overnight courier (notice deemed
given upon receipt of proof of delivery) or sent by registered or certified
mail, return receipt requested, postage prepaid (notice deemed given upon
receipt of proof of delivery), in each case, to the parties at the following
addresses or facsimile numbers (or at such other address or facsimile number for
a party as shall be specified by like notice):
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If to
Parent or Purchaser:
Xxxxxxx
& Xxxxxxx
Xxx
Xxxxxxx & Xxxxxxx Xxxxx
Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Office
of the General Counsel
Facsimile: (000)
000-0000
with a
copy (which shall not constitute notice) to:
Cravath,
Swaine & Xxxxx LLP
000
Xxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention: Xxxxxx X.
Xxxxxxxx III, Esq.
Xxxxxx X. Xxxxxx, Esq.
If to the
Stockholder, to its address set forth on a signature page hereto.
All such notices and other
communications shall be deemed received on the date of receipt by the recipient
thereof if received prior to 5:00 p.m. on a business day in the place of
receipt. Otherwise, any such notice, request or communication shall
be deemed to have been received on the next succeeding business day in the place
of receipt. Nothing in this Section 13(a) shall
be deemed to constitute consent to the manner or address for service of process
in connection with any legal proceeding, including litigation arising out of or
in connection with this Agreement.
(b) Entire Agreement; No Third
Party Beneficiaries; Amendment; Waiver.
(i) This
Agreement constitutes the entire agreement, and supersedes all prior (written or
oral) understandings, agreements or representations, by or among the parties
hereto with respect to the subject matter hereof.
(ii) This
Agreement shall not confer any rights, benefits or remedies of any nature
whatsoever upon any Person other than the parties hereto and their respective
permitted successors and permitted assigns.
(iii) This
Agreement may only be amended, modified or supplemented by a written instrument
executed and delivered by Parent and Stockholder.
(iv) Any
party or parties hereto may, to the extent legally allowed, (A) extend the
time for the performance of any of the obligations or other acts of the other
party or parties hereto, as applicable, or (B) waive compliance with any of
the agreements for the benefit of such party or parties hereto contained
herein. Any agreement on the part of a party or parties hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party or parties, as applicable. Any
failure or delay in exercising any right under this Agreement shall not
constitute a waiver of such right nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right hereunder.
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(c) Assignment; Binding
Effect. Subject to Section 8(b), neither
Stockholder, on the one hand, nor Parent or Purchaser, on the other hand, may
assign this Agreement or any of its rights, interests or obligations hereunder
(whether by operation of Law or otherwise) without the prior written approval of
Parent or Stockholder, as applicable, and any attempted assignment without such
prior written approval shall be void and without legal effect; provided, however, that Parent
and Purchaser may each assign their respective rights and obligations hereunder
to a direct or indirect wholly-owned Subsidiary of such Person, it being
understood and agreed that any such assignment shall not relieve such Person of
its obligations hereunder. Subject to the preceding sentence, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and permitted assigns.
(d) Termination. This
Agreement shall automatically terminate and become void and of no further force
or effect on the earlier to occur of any of the following events (i) the
Effective Time, (ii) the Offer shall have terminated or the Expiration Time
shall have occurred, in each case without acceptance for payment of Shares
pursuant to the Offer, and (iii) the termination of the Merger Agreement in
accordance with its terms (the time of such occurrence, the “Termination Time”);
provided, however, that
(A) Section 13 shall
survive any termination hereof, (B) Section 9 shall
survive any termination hereof in the event the Acceptance Time has occurred and
(C) no such termination shall relieve or release Stockholder, Parent or
Purchaser from any obligations or liabilities arising out of its breach of this
Agreement prior to its termination.
(e) Governing Law; Consent to
Jurisdiction; Waiver of Jury Trial.
(i) This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware, without giving effect to conflicts of laws principles
that would result in the application of the Law of any other state.
(ii) Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the exclusive jurisdiction of the Delaware Court of
Chancery, or, if such state court does not have proper jurisdiction, the federal
court of the United States of America, sitting in Delaware, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or the agreements delivered in connection herewith or the
transactions contemplated hereby or thereby or for recognition or enforcement of
any judgment relating thereto, and each of the parties hereby irrevocably and
unconditionally (A) agrees not to commence any such action or proceeding
except in such courts, (B) agrees that any claim in respect of any such
action or proceeding may be heard and determined in such Delaware Court of
Chancery or, if no such state court has proper jurisdiction, in such federal
court, (C) waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any such action or proceeding in any such Delaware Court of Chancery or federal
court and (D) waives, to the fullest extent permitted by Law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such Delaware Court of Chancery or federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by Law. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section
13(a). Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by
Law.
10
(iii) EACH
PARTY 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 AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES
THAT (A) 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, (B) IT UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
13(e)(iii).
(f) Severability. If
any term or other provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced by
any rule of Law or public policy, all other terms, provisions and conditions of
this Agreement shall nevertheless remain in full force and
effect. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable Law in an acceptable manner to the end that the original intent of
the parties are fulfilled to the extent possible.
(g) Specific
Performance. Each of the parties hereto agrees that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties hereto
shall be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in any court specified in Section
13(e)(ii), without bond or other security being required, this being in
addition to any other remedy to which they are entitled at Law or in
equity. Except as otherwise provided herein, any and all rights and
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other right or remedy conferred hereby, or by Law or
equity upon such party, and the exercise by a party of any one right or remedy
will not preclude the exercise of any other right or remedy.
(h) Expenses. All
costs and expenses incurred in connection with this Agreement shall be paid by
or on behalf of the party incurring such cost or expense, whether or not the
transactions contemplated by this Agreement or the Merger Agreement are
consummated.
11
(i) Counterparts. This
Agreement may be executed manually or by facsimile by the parties hereto, in any
number of counterparts (each of which shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement) and shall
become effective when each party hereto shall have received a counterpart hereof
signed by all of the other parties hereto.
(j) Headings. The
Section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement.
(k) Interpretation. Any
reference to any national, state, local or foreign Law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
otherwise requires. When a reference is made in this Agreement to
Sections or Schedules, such reference shall be to a Section of or Schedule to
this Agreement unless otherwise indicated. Whenever the words
“include,” “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation.” In this
Agreement, the Stockholder of any Common Stock held in trust shall be deemed to
be the relevant trust and/or the trustees thereof acting in their capacities as
such trustees, in each case as the context may require to be most protective of
Parent, including for purposes of such trustees’ representations and warranties
as to the proper organization of the trust, their power and authority as
trustees and the non-contravention of the trust’s governing
instruments.
(l) No
Presumption. This Agreement shall be construed without regard
to any presumption or rule requiring construction or interpretation against the
party drafting or causing any instrument to be drafted.
(m) No Limitation on Actions as
Director. Notwithstanding any other provision of this
Agreement, nothing in this Agreement is intended to, or shall be construed to,
prohibit a Stockholder, or any officer or Affiliate of a Stockholder who is a
director of the Company, from taking any action in his or her capacity as a
member of the Company Board of Directors or from exercising his or her fiduciary
duties as a member of the Company Board of Directors.
[signature
pages follow]
12
The parties hereto have executed this Tender and Support Agreement as of the
date first written above.
|
XXXXXXX
& XXXXXXX
|
||
| By: | /s/ Xxxxxxxx X. XxXxx | |
| Name: | ||
| Title: |
Worldwide Chairman,
Pharmaceuticals
Group
|
|
|
KITE
MERGER SUB, INC.
|
||
| By: | /s/ Xxxxxxx Xxxx | |
| Name: |
Xxxxxxx
Xxxx
|
|
| Title: |
President
|
|
|
HORIZON
BIOMEDICAL SCIENCES, LLC
|
||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx, M.D. |
|
| Name: |
Xxxxxxx
X. Xxxxxxxxx, M.D.
|
|
| Title: | Managing Member | |
|
Address:
|
||
| 000 Xxxxxxx Xxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, XX 00000 |
|
|
| Facsimile: (000) 000-0000 |
|
|
|
with
copies (which shall not constitute notice) to:
|
|||
| J. Xxx Xxxxxx, Esq., Paramount Bio Sciences | |||
| 000 Xxxxxxx Xxxxxx | |||
| Xxx Xxxx, XX 00000 | |||
| Attention: | J. Xxx Xxxxxx |
|
|
| Facsimile: | (000) 000-0000 |
|
|
SCHEDULE
A
|
NAME
|
NUMBER OF
SHARES
|
NUMBER OF
WARRANTS
|
|
Horizon
BioMedical Ventures, LLC
|
3,184,903
|
0
|
A-1
