VOTING AND TRANSACTION SUPPORT AGREEMENT
FOR PARENT SECURITYHOLDERS
THIS VOTING AND SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of May 4, 2021, by and among
Chiasma, Inc., a Delaware corporation (the “Company”), and the shareholder(s) of Amryt Pharma plc, a public limited company incorporated under the laws of England and Wales (“Parent”),
listed on Schedule A hereto (“Securityholder”). Capitalized terms used but not defined herein are used as they are defined in the Merger Agreement (as defined below).
RECITALS:
A. Securityholder is the registered legal and beneficial owner
of the securities of Parent (including options, warrants and convertible securities) as set forth opposite Securityholder’s name on Schedule A hereto (such securities, together with any other securities of Parent acquired by or issued to
Securityholder after the date hereof and during the term of this Agreement, being collectively referred to herein as the “Subject Securities”).
B. Upon the satisfaction or waiver of the terms and conditions
of the Agreement and Plan of Merger by and among Parent, Acorn Merger Sub, Inc. and the Company, dated as of the date hereof (as amended, restated or supplemented from time to time, the “Merger Agreement”),
Merger Sub will be merged with and into the Company, with the Company to be the surviving corporation of such merger (the “Merger”).
C. In order to induce the Company to enter into the Merger
Agreement and in consideration of the execution thereof by the Company and to enhance the likelihood that the Merger and the other transactions contemplated by the Merger Agreement (collectively, the “Transactions”)
will be consummated, Securityholder, solely in Securityholder’s capacity as holder of the Subject Securities, has entered into this Agreement and agrees to be bound hereby.
NOW THEREFORE, in consideration of the promises and the covenants and agreements set forth below, and for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. [Reserved.]
2. Agreement to Vote Shares. At any meeting of
shareholders of Parent or at any adjournment thereof or in any other circumstances upon which Securityholder’s vote, consent or other approval is sought, Securityholder shall vote (or cause to be voted), as applicable, all of the Subject Securities
that are then entitled to be voted: (i) in favor of: (1) the Parent Shareholder Approval, and (2) any proposal to adjourn or postpone such meeting of shareholders of Parent to a later date if there are not sufficient votes to approve the
resolutions relating to the Parent Shareholder Approval; and (ii) against (1) any Parent Acquisition Proposal, or any of the transactions contemplated thereby, (2) any action, proposal, transaction, or agreement which could reasonably be expected
to result in a breach of any covenant, representation or warranty, or any other obligation or agreement of Parent under the Merger Agreement or of Securityholder under this Agreement, and (3) any action, proposal, transaction, or agreement that
could reasonably be expected to impede, interfere with, delay, discourage, adversely affect, or inhibit the timely consummation of the Transactions or the fulfillment of Parent or Merger Sub’s conditions under the Merger Agreement or change in any
manner the voting rights of any class of shares of Parent (including any amendments to the Parent Organizational Documents, save as contemplated by the Parent Shareholder Approval).
Securityholder agrees that the Subject Securities that are entitled to be voted shall be voted (or caused to be voted) as set forth in the preceding sentence whether or not
such Securityholder’s vote, consent or other approval is sought on only one or on any combination of the matters set forth in this Section 2 and at any time or at multiple times during the term of this Agreement.
3. Opportunity to Review. Securityholder acknowledges receipt of the
Merger Agreement and represents that he, she, or it has had (i) the opportunity to review, and has read, reviewed and understands, the terms and conditions of the Merger Agreement and this Agreement, and (ii) the opportunity to review and discuss
the Merger Agreement, the Transactions and this Agreement with his, her or its own advisors and legal counsel.
4. Confidentiality and Public Disclosure. From the date of this Agreement
until the Closing, the Securityholder shall not make any public announcements regarding this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby; provided, however, that nothing herein shall be deemed
to prohibit such public announcement (i) that the Company and Parent agree upon, (ii) that the Securityholder deems necessary or appropriate under Applicable Laws or (iii) required by obligations pursuant to any listing agreement with, or the
requirements applicable to companies or securities listed or trading on, any securities exchange or market. Securityholder hereby authorizes Parent and the Company to publish and disclose its identity and ownership of the Subject Securities and the
nature of its obligations under this Agreement in any announcement or disclosure required by Applicable Law or the SEC and in the Proxy Statement/Prospectus or the Parent Circular.
5. Representations and Warranties of Securityholder. Securityholder hereby
represents and warrants as follows:
(a) Securityholder (i) is the registered legal and beneficial
owner of the Subject Securities, free and clear of any liens, adverse claims, charges or other encumbrances of any nature whatsoever (other than pursuant to (x) restrictions on transfer under applicable securities laws, or (y) this Agreement), and
(ii) does not legally or beneficially own any securities of Parent (including options, warrants or convertible securities) other than the Subject Securities set forth opposite its name on Schedule A.
(b) Except with respect to obligations under Parent’s
Organizational Documents, as applicable, Securityholder has the sole right to Transfer, as defined below, to vote (or cause to vote) and to direct (or cause to direct) the voting of the Subject Securities, and none of the Subject Securities are
subject to any voting trust or other agreement, arrangement or restriction with respect to the Transfer or the voting of the Subject Securities (other than restrictions on transfer under applicable securities laws), except as set forth in this
Agreement. For purposes hereof, a Person shall be deemed to have effected a “Transfer” of Subject Securities if such Person directly or indirectly: (a) sells, pledges, encumbers, grants an option with
respect to, transfers, assigns, or otherwise disposes of any Subject Securities, or any interest in such Subject Securities; or (b) enters into an agreement or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with
respect to, transfer of or disposition of such Subject Securities or any interest therein.
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(c) Securityholder (i) if not a natural person, is duly
organized, validly existing and (where such concept exists in its jurisdiction of incorporation) in good standing under the laws of its jurisdiction of organization, and (ii) has the requisite corporate, company, partnership or other power and
authority to execute and deliver this Agreement, to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery by Securityholder of this Agreement, the consummation by Securityholder of the
transactions contemplated hereby and the compliance by Securityholder with the provisions hereof have been duly authorized by all necessary corporate, company, partnership or other action on the part of Securityholder, and no other corporate,
company, partnership or other proceedings on the part of Securityholder are necessary to authorize this Agreement, to consummate the transactions contemplated hereby or to comply with the provisions hereof.
(d) This Agreement has been duly executed and delivered by
Securityholder, constitutes a valid and binding obligation of Securityholder and, assuming due authorization, execution and delivery by the other parties thereto, is enforceable against Securityholder in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws affecting or relating to creditors’ rights generally, and (ii) the availability of injunctive relief and other
equitable remedies.
6. No Conflict. The execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby and compliance with the provisions hereof do not and will not conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, any provision of the organizational
documents of Securityholder, if applicable, (ii) any material violation or breach of, or default (with or without notice or lapse of time, or both) under any (A) statute, law, ordinance, rule or regulation or (B) judgment, order or decree, in each
case, applicable to Securityholder or its properties or assets, or (iii) any material violation or breach of, or default (with or without notice or lapse of time, or both) under any material contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which Securityholder is a party or by which Securityholder or Securityholder’s assets are bound.
7. Termination. This Agreement shall terminate automatically upon the
earliest of (a) the Effective Time, (b) such date and time as the Merger Agreement shall be terminated in accordance with Article IX thereof, (c) as to Securityholder, such date and time as (i) any amendment or change to the Merger Agreement is
effected without the Securityholder’s prior written consent that increases the amount, or changes the form, of consideration payable under the Merger Agreement or (ii) any waiver, supplement, amendment or change to the Merger Agreement is effected
without Securityholder’s prior written consent that otherwise materially and adversely affects Securityholder; provided, that any waiver, supplement, amendment or change to the definitions of “End Date” or “Company Material Adverse Effect” set
forth in the Merger Agreement shall be deemed to materially and adversely affect Securityholder, (d) as to Securityholder, the written agreement of the Company and Securityholder and (e) a Parent Adverse Recommendation Change is undertaken by the
Board of Directors of Parent as expressly permitted by Section 6.04(f) or Section 6.04(g) of the Merger Agreement. In the event of the termination of this Agreement, this Agreement shall forthwith become null and void, there shall be no liability
on the part of any of the parties, and all rights and obligations of each party hereto shall cease; provided, however, that no such termination of this Agreement shall relieve any party hereto from any liability for any Willful
Breach of any provision of this Agreement prior to such termination.
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8. No Solicitation. Subject to Section 9, Securityholder shall not,
and shall cause its Subsidiaries not to, and shall use its reasonable best efforts to cause its Affiliates and Representatives not to: (a) directly or indirectly solicit, seek, initiate, knowingly encourage, or knowingly facilitate any inquiries
regarding, or the making of, any submission or announcement of a proposal or offer that constitutes, or is reasonably likely to lead to, any Parent Acquisition Proposal; (b) directly or indirectly engage in, continue, or otherwise participate in
any discussions or negotiations regarding, or furnish or afford access to any other Person any information in connection with or for the purpose of encouraging or facilitating, any proposal or offer that constitutes, or is reasonably likely to lead
to, any Parent Acquisition Proposal; (c) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding, or similar arrangement with respect to a Parent Acquisition Proposal; (d) solicit proxies with respect to a
Parent Acquisition Proposal (other than the Transactions and the Merger Agreement) or otherwise encourage or assist any Person in taking or planning any action that is reasonably likely to compete with, restrain, or otherwise serve to interfere
with or inhibit the timely consummation of the Transactions in accordance with the terms of the Merger Agreement; or (e) initiate a shareholders’ vote of Parent’s shareholders with respect to a Parent Acquisition Proposal. Notwithstanding the
foregoing, Securityholder may (and may permit its Affiliates and its and its Affiliates’ Representatives to) participate in discussions and negotiations with any Person making a Parent Acquisition Proposal (or its Representatives) with respect to
such Parent Acquisition Proposal if: (i) Parent is permitted to engage in discussions or negotiations with such Person in accordance with Section 6.04 of the Merger Agreement; and (ii) Securityholder’s negotiations and discussions are in
conjunction with and ancillary to the Parent’s discussions and negotiations.
9. No Agreement as Director or Officer. Securityholder makes no agreement
or understanding in this Agreement in Securityholder’s capacity as a director or officer of Parent or any of its subsidiaries (if Securityholder holds such office), and nothing in this Agreement: (a) will limit or affect any actions or omissions
taken by Securityholder in Securityholder’s capacity as such a director or officer, including in exercising rights under the Merger Agreement, and no such actions or omissions shall be deemed a breach of this Agreement; or (b) will be construed to
prohibit, limit, or restrict Securityholder from performing or fulfilling Securityholder’s fiduciary duties as an officer or director to Parent or any of its subsidiaries.
10. Successors, Assigns and Transferees Bound. Without limiting Section
1 hereof in any way, each Securityholder agrees that this Agreement and the obligations hereunder shall attach to the Subject Securities from the date hereof through the termination of this Agreement and shall, to the extent permitted by
Applicable Laws, be binding upon any Person to which legal or beneficial ownership of the Subject Securities shall pass, whether by operation of law or otherwise, including Securityholder’s heirs, guardians, administrators or successors, and
Securityholder further agrees to take all reasonable actions necessary to effectuate the foregoing.
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11. Remedies. Securityholder acknowledges that money damages would be both
incalculable and an insufficient remedy for any breach of this Agreement by it, and that any such breach would cause the Company irreparable harm. Accordingly, Securityholder agrees that in the event of any breach or threatened breach of this
Agreement the Company, in addition to any other remedies at law or in equity each may have, shall be entitled to seek immediate equitable relief, including injunctive relief and specific performance, without the necessity of proving the inadequacy
of money damages as a remedy and without the necessity of posting any bond or other security, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having
jurisdiction.
12. Notices. All notices and other communications hereunder shall be in
writing (including electronic mail) and shall be deemed to have been duly given in accordance with the terms of the Merger Agreement and addressed to the respective parties as follows: if to the Company, to its address or electronic mail address
set forth in Section 10.01 of the Merger Agreement and if to Securityholder, to the address or electronic mail address set forth on Schedule A hereto or to such other address or electronic mail address as such party may hereafter specify
for the purpose of providing notice to the other party hereto.
13. Severability. Any provision hereof that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Law, each party hereby waives any provision of Applicable Law that renders any such provision prohibited or unenforceable in any
respect.
14. Entire Agreement/Amendment. This Agreement (including the provisions
of the Merger Agreement referenced herein) represent the entire agreement of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the
subject matter hereof. This Agreement may not be amended, modified, altered or supplemented except by means of a written instrument executed and delivered by the parties hereto.
15. Governing Law. This Agreement, and all claims or causes of action
(whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement, shall be governed by and construed in accordance with the internal laws of the
State of Delaware without reference to its choice of law rules. Each party agrees that any legal action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement shall be brought or otherwise
commenced exclusively in the Court of Chancery of the State of Delaware or any federal court of competent jurisdiction in the State of Delaware. Each of the parties consents to service of process in any such proceeding in any manner permitted by
the laws of the State of Delaware, and agrees that service of process by registered or certified mail, return receipt requested, at its address specified pursuant to Section 13 of this Agreement is reasonably calculated to give actual
notice. Each party waives and agrees not to assert (by way of motion, as a defense or otherwise), in any such legal proceeding commenced in such courts, any claim that such party is not subject personally to the jurisdiction of such courts, that
such legal proceeding has been brought in an inconvenient forum, that the venue of such proceeding is improper or that this Agreement or the subject matter hereof or thereof may not be enforced in or by such courts. EACH PARTY HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.
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16. No Agreement Until Executed. Irrespective of negotiations among the
parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute or be deemed to evidence a Contract, agreement, arrangement or understanding between the parties hereto unless and until (a) the Merger Agreement is executed
by all parties thereto, and (b) this Agreement is executed by all parties hereto.
17. Counterparts. This Agreement may be executed by delivery of electronic
signatures and in two or more counterparts, each of which shall be deemed an original, and it shall not be necessary in making proof of this Agreement or the terms hereof to produce or account for more than one of such counterparts.
[SIGNATURE PAGES FOLLOW]
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In Witness Whereof, the parties have caused this Agreement to be executed as of the date first above
written.
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SECURITYHOLDER
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HIGHBRIDGE TACTICAL CREDIT MASTER FUND, L.P.
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By: Highbridge Capital Management, LLC,
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as Trading Manager
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By:
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/s/ Xxxxxxxx Xxxxx | |
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Name: Xxxxxxxx Xxxxx
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Title: Managing Director, Co-CIO
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HIGHBRIDGE CONVERTIBLE DISLOCATION FUND, L.P.
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By: Highbridge Capital Management, LLC,
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as Trading Manager
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By:
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/s/ Xxxxxxxx Xxxxx | |
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Name: Xxxxxxxx Xxxxx
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Title: Managing Director, Co-CIO
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HIGHBRIDGE SCF SPECIAL SITUATIONS SPV, L.P.
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By: Highbridge Capital Management, LLC,
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as Trading Manager
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By:
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/s/ Xxxxxxxx Xxxxx | |
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Name: Xxxxxxxx Xxxxx
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Title: Managing Director, Co-CIO
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[Signature Page to Voting and Support Agreement]
In Witness Whereof, the parties have caused this Agreement to be executed as of the date first above
written.
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CHIASMA, INC. | |
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By:
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/s/ Xxx Xxxxxx | |
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Name:
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Xxx Xxxxxx | |
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Title:
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Chief Executive Officer | |
[Signature Page to Voting and Support Agreement]
SCHEDULE A
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Name, Address and Electronic Mail Address of Securityholder
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Number and Class of Subject Securities
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Highbridge Tactical Credit Master Fund, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
xx-xx@xxxxxxxxxx.xxx
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9,714,347 London-listed Shares
339,023 ADR Shares
5,498,692 Warrants
$20,867,490 principal amount of
Convertible Bonds
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Highbridge SCF Special Situations SPV, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
xx-xx@xxxxxxxxxx.xxx
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1 London-listed Share
673,401 ADR Shares
3,467,828 Warrants
$4,123,390 principal amount of
Convertible Bonds
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Highbridge Convertible Dislocation Fund, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
xx-xx@xxxxxxxxxx.xxx
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$22,861,728 principal amount of
Convertible Bonds
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