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Exhibit C
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into this 30th day
of November, 1999, by and among KING PHARMACEUTICALS, INC., a Tennessee
corporation ("Acquiror"), MERLIN ACQUISITION I CORP., a Delaware corporation and
a wholly-owned subsidiary of Acquiror ("Merger Sub"), and each of the
undersigned stockholders (each a "Stockholder" and collectively, the
"Stockholders") of MEDCO RESEARCH, INC., a Delaware corporation (the "Company").
WHEREAS, the Stockholders own of record and beneficially the shares of
common stock, par value $.001 per share, of the Company ("Company Common Stock")
set forth opposite their respective names on Schedule A hereto and desire to
enter into this Agreement with respect to such shares of Company Common Stock;
WHEREAS, Acquiror, Merger Sub and the Company have contemporaneously
with the execution of this Agreement entered into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of the date hereof, which provides,
among other things, for the merger (the "Merger") of Merger Sub with and into
the Company pursuant to the terms and conditions thereof; and
WHEREAS, as an essential condition and inducement to Acquiror and
Merger Sub entering into the Merger Agreement, Acquiror has required that the
Stockholders agree, and the Stockholders have agreed, to enter into this
Agreement.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements contained herein and in the Merger Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, and intending to be legally bound hereby, agree
as follows:
SECTION 1. DEFINITIONS
Capitalized terms used herein and not otherwise defined shall have the
meanings given to such terms as in the Merger Agreement.
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SECTION 2. DISPOSITION OF THE SHARES
(a) Each Stockholder covenants and agrees that prior to the
Termination Date (as defined in Section 17 hereof), such Stockholder shall not
sell, assign, transfer, encumber, pledge, mortgage or otherwise encumber or
dispose of or enter into any contract, option or other agreement or
understanding with respect to the direct or indirect sale, assignment, transfer,
encumbrance, pledge, mortgage or other Encumbrance or disposition of, any shares
of Company Common Stock or any other capital stock of the Company (together, the
"Capital Stock") or any other voting interests in the Company now owned or
hereafter acquired beneficially or of record by such Stockholder.
(b) Each Stockholder hereby agrees and consents to the entry of stop
transfer instructions by the Company against the transfer of any shares of
Capital Stock consistent with the terms of Section 1(a) hereof.
SECTION 3. VOTING
(a) Each Stockholder hereby agrees to appear, or cause the holder of
record on any applicable record date (the "Record Holder") to appear, in person
or by proxy, for the purpose of obtaining a quorum at any annual or special
meeting of stockholders of the Company and at any adjournment thereof at which
matters relating to the Merger, Merger Agreement or any transaction contemplated
thereby are considered.
(b) Each Stockholder further agrees that such Stockholder shall vote,
or cause the Record Holder to vote, in person or by proxy all of the shares of
Capital Stock, and any other voting interests of the Company directly or
indirectly owned or hereafter acquired beneficially or of record by such
Stockholder:
(i) in favor of the Merger and the adoption of the Merger
Agreement and the transactions contemplated thereby (including any amendments or
modifications of the terms thereof approved by the Board of Directors of the
Company and by Acquiror) in connection with any meeting of, or solicitation of
consents from, the stockholders of the Company at which or in connection with
which the Merger and the Merger Agreement are submitted for the consideration
and vote of the stockholders of the Company;
(ii) against approval or adoption of any extraordinary corporate
transaction (other than the Merger, the Merger Agreement or the transactions
contemplated thereby) including, without limitation, any transaction involving
(A) the sale or transfer of all or substantially all of the
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Capital Stock, whether by merger, consolidation or other business combination,
(B) a sale or transfer of all or substantially all of the assets of the Company
or its Subsidiaries, (C) a reorganization, recapitalization or liquidation of
the Company or its Subsidiaries, or (D) any amendment to the Company's governing
instruments creating any new class of securities of the Company or otherwise
affecting the rights of any class of security as currently in effect;
(iii) against approval or adoption of resolutions which would have
the effect of preventing, materially delaying or otherwise materially
frustrating consummation of the Merger or otherwise preventing or materially
delaying the Company from performing its obligations under the Merger Agreement;
and
(iv) against any action which would constitute a material breach
of any provision of the Merger Agreement.
To the extent inconsistent with the foregoing provisions of this
Section 2, each Stockholder revokes any and all previous proxies with respect to
shares of Capital Stock owned beneficially or of record by such Stockholder and
agrees not to grant any proxy with respect to and any other voting interests in
the Company owned or hereafter acquired beneficially or of record by such
Stockholder.
SECTION 4. PROXY; FURTHER ASSURANCES
(a) Contemporaneously with the execution of this Agreement: (i) each
Stockholder has delivered to Acquiror a proxy in the form attached to this
Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law, with respect to the shares referred to therein (the "Proxy");
and (ii) each Stockholder has caused to be delivered to Acquiror an additional
proxy (in the form attached hereto as Exhibit A) executed on behalf of the
record owner of any outstanding shares of Company Common Stock that are owned
beneficially (within the meaning of Rule 13d-3 under the Exchange Act), but not
of record, by such Stockholder, which proxy shall be irrevocable to the fullest
extent permitted by law, with respect to the shares referred to therein.
(b) Each Stockholder shall, at such Stockholder's own expense, perform
such further acts and execute such further documents and instruments as may
reasonably be required to vest in Acquiror the power to carry out and give
effect to the provisions of this Agreement. Without limiting the generality of
the foregoing, none of the parties hereto shall enter into any
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agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) or transaction if such action would materially impair or materially
interfere with the ability of any party to effectuate, carry out and comply with
all of the terms of this Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents and
warrants to Acquiror as follows:
(a) Such Stockholder has the legal capacity and all other power and
authority necessary to enter into this Agreement, to perform the obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by such Stockholder and, assuming due
authorization, execution and delivery by Acquiror, Merger Sub and the other
parties hereto, constitutes a legal, valid and binding obligation of such
Stockholder, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general applicability relating to or
affecting creditor's rights generally and by the application of general
principles of equity.
(b) The execution and delivery of this Agreement and the consummation
of the transactions herein contemplated will not conflict with or violate any
law, regulation, court order, judgment or decree applicable to such Stockholder
or by which the property of such Stockholder is bound or affected, or conflict
with or result in any breach of or constitute a default under any contract or
agreement to which such Stockholder is a party or by which such Stockholder or
such Stockholder's property is bound or affected, which conflict, violation,
breach or default would adversely affect such Stockholder's ability to perform
the obligations of this Agreement.
(c) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby do not and will not require any consent
or other action by any Person under, any provision of any agreement, contract or
other instrument binding on such Stockholder.
(d) The shares of Company Common Stock reflected on Schedule A as
being owned by such Stockholder are the only shares of voting Capital Stock of
the Company or any other voting interests in the Company owned beneficially or
of record by such Stockholder, and except as set forth in Schedule A, such
Stockholder does not own any other options, warrants or
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rights to acquire shares of any class of capital stock of the Company or any
other voting interests in the Company. Such Stockholder has the sole power
respecting voting and transfer of such Stockholder's shares of Capital Stock.
The shares and certificates representing such shares held by such Stockholder
are now, and at all times during the term hereof will be, owned as indicated on
Schedule A by such Stockholder, free and clear of all liens, claims, security
interests, proxies, options, warrants or other rights, voting trusts or
agreements, understandings or arrangements or any other Encumbrances whatsoever,
except for any such Encumbrances or proxies arising under this Agreement.
(e) No investment banker, broker, finder or other intermediary is
entitled to a fee or commission in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of such Stockholder.
SECTION 6. COVENANTS OF EACH STOCKHOLDER
(a) From the date of this Agreement until the Termination Date (as
defined in Section 17 hereof), each Stockholder shall not, and shall not permit
any Representatives of the Company to, directly or indirectly, (i) initiate,
solicit, encourage or otherwise facilitate (including by way of furnishing
information), any inquiries or the making of any proposal or offer that
constitutes, or may reasonably be expected to lead to, an Acquisition Proposal,
(ii) enter into or maintain or continue discussions or negotiate with any Person
in furtherance of such inquiries or to obtain an Acquisition Proposal, or (iii)
agree to, approve, recommend, or endorse any Acquisition Proposal, or authorize
or permit any Representatives of the Company to take any such action and, such
Stockholder shall promptly notify Acquiror of any such inquiries and proposals
received by such Stockholder or any of Representatives of the Company, relating
to any of such matters. Each Stockholder severally and not jointly further
agrees to use such Stockholder's best efforts as a stockholder to cause the
Company to comply with the obligations of the Company set forth in Section 7.8
of the Merger Agreement.
(b) Except pursuant to the terms of this Agreement, no Stockholder
shall without the prior written consent of Acquiror or Merger Sub, directly or
indirectly, grant any proxies or enter into any voting trust or other agreement
or arrangement with respect to the voting of any Capital Stock or any options,
warrants or other rights to acquire stock of the Company.
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SECTION 7. SPECIFIC PERFORMANCE
Each Stockholder acknowledges and agrees that there would be no
adequate remedy at law for Acquiror or Merger Sub if such Stockholder fails to
perform any of such Stockholder's obligations hereunder, and accordingly agrees
that Acquiror and Merger Sub, in addition to any other remedy to which they may
be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of such Stockholder under this Agreement in
accordance with the terms and conditions of this Agreement in any court of the
United States or any State thereof having jurisdiction. Each Stockholder hereby
waives any objection to the imposition of such relief or to the posting of a
bond in connection therewith.
SECTION 8. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of law.
SECTION 9. PARTIES IN INTEREST
This Agreement shall inure to the benefit of and shall be binding upon
the parties hereto and their respective heirs, legal representatives and
permitted assigns. If any Stockholder shall at any time hereafter acquire
ownership of, or voting power with respect to, any additional shares of Capital
Stock or any other voting interests in the Company in any manner, whether by the
exercise of any options or any securities or rights convertible into or
exchangeable for shares of Capital Stock or any other voting interests in the
Company, by operation of law or otherwise, such shares or other interests shall
be held subject to all of the terms and provisions of this Agreement. Without
limiting the foregoing, each Stockholder specifically agrees that the
obligations of such Stockholder hereunder shall not be terminated by operation
of law, whether by death or incapacity of such Stockholder or otherwise.
SECTION 10. AMENDMENT
This Agreement shall not be amended, altered or modified except by an
instrument in writing duly executed and delivered on behalf of each of the
parties hereto.
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SECTION 11. SEVERABILITY
If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions 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 a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest extent possible.
SECTION 12. WAIVER
Except as provided in this Agreement, no action taken pursuant to this
Agreement, including without limitation any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained in this Agreement. The waiver by any party hereto of a breach of any
provision hereunder shall not operate or be construed as a wavier of any prior
or subsequent breach of the same or any other provision hereunder.
SECTION 13. NOTICES
All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given or made as of
the date delivered, mailed or transmitted, and shall be effective upon receipt,
if delivered personally, mailed by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following addresses (or
at such other address for a party as shall be specified by like changes of
address) or sent by electronic transmission to the telecopier number specified
below:
If to a Stockholder:
To such Stockholder's address
or telecopier number as set forth
on Schedule A attached hereto
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If to Acquiror or Merger Sub:
King Pharmaceuticals, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Telecopier No.(000) 000-0000
Attention: Chief Executive Officer
and
Telecopier No. (000) 000-0000
Attention: Executive Vice President and General Counsel
With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Xx., Esq.
SECTION 14. ENTIRE AGREEMENT; ASSIGNMENT
This Agreement, together with the affiliate agreements (if and to the
extent entered into by any Stockholder and Acquiror), (a) constitute the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties and (b) shall not be assigned by
operation of law or otherwise, except that this Agreement shall be binding upon
each Stockholder and each Stockholder's successors and assigns.
SECTION 15. HEADINGS
Section headings are included solely for convenience and are not
considered to be part of this Agreement and are not intended to be an accurate
description of the contents thereof.
SECTION 16. COUNTERPARTS
This Agreement may be executed and delivered in one or more
counterparts, and by the different parties hereto in separate counterparts, each
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of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement.
SECTION 17. TERMINATION
This Agreement and all of the parties' rights and obligations
hereunder shall terminate on the earlier to occur of (a) the date on which the
Merger Agreement is validly terminated pursuant to Section 9.1 thereof, or (b)
the Effective Time (the "Termination Date"); provided, however, that in the
event the Company becomes obligated to pay a Termination Fee to Acquiror
pursuant to Section 9.5 of the Merger Agreement, the Termination Date shall mean
the date on which such Termination Fee is received by Acquiror.
SECTION 18. OFFICERS AND DIRECTORS; AFFILIATE AGREEMENTS
(a) Notwithstanding anything else herein to the contrary but subject
to the proviso set forth in this Section 18(a), (i) nothing set forth herein
shall be deemed to restrict or otherwise prohibit a Stockholder who is an
officer or director of the Company from exercising, in such individual's
capacity as an officer or director of the Company, what such Stockholder
believes in good faith to be his or her fiduciary duties as an officer or
director of the Company to the stockholders of the Company, and (ii) no action
or inaction required hereby shall require a Stockholder who is an officer or
director of the Company to take any action or refrain from taking any action, in
such individual's capacity as an officer or director of the Company, that such
Stockholder believes in good faith is required by or would be a breach of his or
her fiduciary duties as an officer or director of the Company to the
stockholders of the Company; provided, however, that, notwithstanding the
foregoing, with respect to any matter set forth in Section 7.8 of the Merger
Agreement, each Stockholder who is an officer or director of the Company shall
exercise his or her fiduciary duties to the stockholders of the Company pursuant
to and in accordance with the provisions of Section 7.8 of the Merger Agreement.
(b) Each Stockholder who also executes and enters into an Affiliate
Agreement hereby agrees and acknowledges that, notwithstanding any other
provisions of this Agreement and in addition to any obligations of such
Stockholder hereunder, such Stockholder is and will be subject to all of the
terms and provisions of such Affiliate Agreement and the obligations of such
Stockholder contained in such Affiliate Agreement are and will be independent,
separate and apart from the obligations of such Stockholder hereunder.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Voting Agreement, or have caused this Voting Agreement to be
executed and delivered on their behalf, as of the date first above written.
KING PHARMACEUTICALS, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Chairman of the Board &
Chief Executive Officer
MERLIN ACQUISITION I CORP.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
STOCKHOLDERS
/s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
/s/ Xxx X. Xxxx, M.D.
----------------------------------
Name: Xxx X. Xxxx, M.D.
/s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
/s/ Xxxxxx X. Step
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Name: Xxxxxx X. Step
/s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
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SCHEDULE A
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STOCKHOLDER NAME,
ADDRESS AND TELEPHONE COMPANY COMMON STOCK COMPANY COMMON STOCK
NUMBER OWNED OF RECORD OWNED BENEFICIALLY(1)/
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Xxxxxxx X. Xxxxxxxx 114,200 17,000
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Xxxxxxx X. Xxxxxxxx 7,120 31,000
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Xxx X. Xxxx, M.D. 0 31,000
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Xxxx X. Xxxxxx 0 31,000
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Xxxxx X. Xxxxxxx 1,000 137,000
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Xxxxxx X. Step 0 37,000
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(1) All are shares of Company Common Stock issuable upon the exercise of
Options as of the date of this Agreement.
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned Stockholder of MEDCO RESEARCH, INC., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes KING PHARMACEUTICALS, INC., a Tennessee
corporation ("Acquiror") and MERLIN ACQUISITION I CORP., a Delaware corporation
and wholly-owned subsidiary of Acquiror ("Merger Sub"), and each of them, the
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to the full extent of the undersigned's voting rights with
respect to (a) the outstanding shares of common stock, par value $.001 per
share, of the Company (the "Company Common Stock") or any other capital stock of
the Company (collectively with the Company Common Stock, the "Capital Stock")
owned of record by the undersigned as of the date of this proxy, which shares
are specified on the final page of this proxy, and (b) any and all other shares
of Capital Stock of the Company which the undersigned may acquire on or after
the date hereof. Upon the execution hereof, all prior proxies given by the
undersigned with respect to any of the Capital Stock are hereby revoked, and the
undersigned agrees that no subsequent proxy will be given with respect to any of
the Capital Stock.
This proxy is irrevocable, is coupled with an interest, is granted in
connection with the execution and delivery of the Voting Agreement dated as of
the date hereof among Acquiror, the undersigned and certain other stockholders
of the Company (the "Voting Agreement"), and is granted in consideration of
Acquiror and Merger Sub entering into the Agreement and Plan of Merger dated as
of the date hereof among Acquiror, Merger Sub and the Company (the "Merger
Agreement").
The proxy named above (and its successors) will, prior to the
Termination Date (as defined in the Voting Agreement), be empowered, and may
exercise this proxy, to vote the Capital Stock at any meeting of the
stockholders of the Company, however called, or in connection with any
solicitation of written consents from stockholders of the Company, in favor of
the approval and adoption of the Merger Agreement and the approval of the merger
contemplated thereby, and in favor of each of the other actions contemplated by
the Merger Agreement. The undersigned may vote the Capital Stock on all other
matters.
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This proxy shall be binding upon the representatives, successors and
assigns of the undersigned (including any transferee of any of the Capital
Stock).
If any provision of this proxy or any part of any such provision is
held under any circumstances to be invalid or unenforceable in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this proxy. Each provision of this
proxy is separable from every other provision of this proxy, and each part of
each provision of this proxy is separable from every other part of such
provision.
This proxy shall terminate upon the valid termination of the Voting
Agreement.
Date: November 30, 1999
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Stockholder's Name
Number of shares of common stock of
the Company owned of record as of
the date of this proxy:
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