FORM OF AMENDED AND RESTATED LOCK-UP AGREEMENT
Exhibit 10.4
FORM OF AMENDED AND RESTATED LOCK-UP AGREEMENT
April 12, 2013
BioSante Pharmaceuticals, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
This agreement amends and restates in its entirety the lock-up agreement, dated October 3, 2012, between the undersigned and BioSante Pharmaceuticals, Inc., a Delaware corporation (“BioSante”), entered into in connection with the Agreement and Plan of Merger, dated the date thereof, by and between BioSante and ANIP Acquisition Company (d/b/a ANI Pharmaceuticals, Inc.), a Delaware corporation (“ANI”). Reference is made to the Amended and Restated Agreement and Plan of Merger (the “Merger Agreement”), by and among BioSante, ANI Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of BioSante (“Merger Sub”), and ANI, dated as of the date hereof. Pursuant to the Merger Agreement, BioSante and ANI plan to effect a merger (the “Merger”) in which Merger Sub will be merging with and into ANI, with ANI being the surviving corporation. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Merger Agreement.
To induce both parties to continue their efforts in connection with the Merger contemplated by the Merger Agreement, the undersigned agrees that, without BioSante’s prior written consent, the undersigned will not, for a period commencing on the closing date of the Merger and ending 180 days after such date (the “Lock-Up Period”), directly or indirectly, or publicly announce an intention to (a) offer, sell, contract to sell, grant any option or contract to purchase, purchase any option or contract to sell, or otherwise dispose of any shares of BioSante’s common stock, par value $0.0001 per share, to be received by the undersigned in the Merger (the “Common Stock”), (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing restriction (i) shall not limit the right of the undersigned during the Lock-Up Period to make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any securities convertible into, exercisable for, or exchangeable for shares of Common Stock so long as there are no sales of such shares of Common Stock during the Lock-Up Period and (ii) shall include, without limitation, any securities issued to the undersigned in the Merger in exchange for securities of ANI.
Any Common Stock acquired by the undersigned in the open market on or after the closing of the Merger will not be subject to this agreement. A transfer of Common Stock to an immediate family member or a trust for the benefit of the undersigned or an immediate family member (including by will or intestacy) or a distribution to partners, members or shareholders of the
undersigned may be made, provided that the transferee agrees in writing prior to such transfer to be bound by the terms of this agreement as if it were a party hereto. For purposes of this agreement, “immediate family” means any relationship by blood, marriage or adoption, not more remote than first cousin (including lineal descendants, stepchildren, father, mother, brother or sister of the undersigned or the undersigned’s spouse).
The foregoing restriction shall not apply: (1) to bona fide gifts by the undersigned, provided that (a) each resulting transferee of Common Stock executes and delivers to BioSante an agreement certifying that such transferee is bound by the terms of this agreement and has been in compliance with the terms hereof since the date first above written as if it had been an original party hereto and (b) to the extent any interest in Common Stock is retained by the undersigned (or such spouse or family member), such Common Stock shall remain subject to the restrictions contained in this agreement, (2) to sale, transfer or other transaction in or relating to shares of Common Stock in connection with any merger of BioSante with or into any other entity or tender offer by BioSante or any other entity for the Common Stock, in each case which transaction has been approved by at least a majority of BioSante’s Board of Directors or (3) sales made pursuant to a Trading Plan Under Rule 10b5-1 of The Securities Exchange Act of 1934, as amended, adopted by the undersigned and delivered to BioSante prior to the Effective Time, designed to permit the undersigned to cover tax withholding obligations attributable to shares of ANI Series D Preferred Stock granted to the undersigned pursuant to that certain Transaction Bonus Agreement between the undersigned and ANI, dated as of September 22, 2012, as amended and converted into Common Stock at the Effective Time, provided that in no event will such Trading Plan permit the sale of more than fifty percent (50%) of such Common Stock.
The undersigned agrees and consents to the entry of stop transfer instructions with BioSante’s transfer agent and registrar relating to the transfer of the undersigned’s shares of Common Stock except in compliance with the restrictions described above and authorizes BioSante, during the Lock-Up Period, to cause BioSante’s transfer agent to place a notation on book-entry notations representing the Common Stock.
The undersigned represents and warrants that the undersigned has full power and authority to enter into this agreement, and that, upon request, the undersigned will execute any additional documents reasonably necessary to carry out the transactions contemplated hereby. Any obligations created by this agreement shall be binding upon the heirs, devisees, personal representatives, successors and assigns of the undersigned.
The undersigned agrees that in the event of any breach or threatened breach by the undersigned of any covenant, obligation or other provision contained in this agreement, then BioSante shall be entitled (in addition to any other remedy that may be available to BioSante) to (a) a decree or order of specific performance to enforce the observance and performance of such covenant, obligation or other provision and (b) an injunction restraining such breach or threatened breach.
Any term or provision of this agreement that is invalid or unenforceable under applicable law, such provision shall be excluded from this agreement and the balance of this agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
The provisions of this agreement may not be amended or waived by the undersigned party without the prior written consent of BioSante.
This agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to such State’s principles of conflict of laws. Delivery of a signed copy of this letter by facsimile transmission shall be effective as delivery of the original hereof.
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Very truly yours, |
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