Exhibit C
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated this ___ day of March,
2008 is entered into by and among Cytogen Corporation, a Delaware corporation
(the "Company"), [__________________________________________________________]
(the "Stockholder") and EUSA Pharma, Inc., a Delaware corporation (the
"Parent"). Capitalized terms used herein and not otherwise defined shall have
the respective meanings assigned to them in the Merger Agreement (as defined
below).
W I T N E S S E T H:
WHEREAS, the Stockholder is the legal and beneficial owners of
_____________ shares of Company Common Stock which represents ____% of the
outstanding shares of Company Common Stock;
WHEREAS, Company is a party to an Agreement and Plan of Merger, which is
being executed contemporaneously herewith, between Company, Merger Sub and
Parent, a true and complete copy of which has been provided to the Stockholder
(the "Merger Agreement");
WHEREAS, the Stockholder has agreed to vote all of the Company Capital
Stock owned by it, whether beneficially or otherwise, or over which it has
voting power (the "Stockholder Shares") in favor of all resolutions to be
considered by holders of Company Capital Stock in connection with the
transactions contemplated by the Merger Agreement;
NOW, THEREFORE in consideration of the foregoing premises and as
inducement to and in consideration of Parent entering into the Merger Agreement
and certain other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
Section 1 Representations and Warranties. The Stockholder hereby
represents and warrants, for and in respect of itself and its Stockholder Shares
only, that:
(a) to the extent the Stockholder is an entity, it is duly
incorporated or organized and validly existing under the laws of its
jurisdiction of incorporation or organization; it has the corporate or other
power and capacity and has taken all necessary corporate or other action to
authorize the execution, delivery and performance of this Agreement and its
obligations hereunder and has received all requisite approvals to enter into
this Agreement and to complete the transactions contemplated hereby and, upon
the due execution and delivery of this Agreement by the Stockholder, this
Agreement shall be a valid and binding agreement enforceable by Parent against
the Stockholder in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws relating to or
affecting creditors' rights generally and to general principles of equity;
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(b) the Stockholder is not a party to, bound or affected by or
subject to, any material charter, by-law or constituting document provision (in
the case of a party that is not an individual), statute, regulation, judgment,
order, decree or law which would be: violated, contravened, breached by, or
under which default would occur as a result of, the execution, delivery and
performance of this Agreement and the Stockholder is not a party to, bound or
affected by or subject to any agreement for voting any Company Capital Stock
which would be violated, contravened, breached by, or under which default would
occur as a result of, the performance of this Agreement; and
(c) the Stockholder understands and agrees that if the Stockholder
attempts to transfer, or provide any other person or entity with the authority
to vote any of the Stockholder Shares other than in compliance with this
Agreement, Company shall not, and such Stockholder hereby unconditionally and
irrevocably instructs Company to not, (i) permit any such transfer on its books
and records, (ii) issue a new certificate representing any of such Stockholder
Shares, or (iii) record such vote unless and until such Stockholder shall have
complied with the terms of this Agreement.
Section 2 Covenants.
(a) Except as otherwise expressly provided herein, the Stockholder
hereby covenants that until this Agreement is terminated, the Stockholder will:
(i) not, directly or indirectly, take or support any action
of any kind that could reasonably be expected to
materially reduce the likelihood of success of or delay
the consummation of the Merger Agreement;
(ii) not, directly or indirectly, initiate, solicit or
encourage proposals, requests, inquiries or contacts, or
participate in negotiations or discussions, including
without limitation, the delivery of non-public
information of Company to any third party, for the
purpose or with the intention of leading to any
proposal, concerning any disposition, directly or
indirectly, of any material assets of Company, without
limitation, extending to any take-over bid, merger,
consolidation or other business combination involving
Company or any acquisition of an equity interest in
Company representing any material amount of the equity
of Company or any similar transaction (a "Competing
Proposal"), except for the transactions contemplated by
the Merger Agreement; and
(iii) not enter into, continue or otherwise participate in any
discussions or negotiations regarding, or furnish to any
person or any other entity any non-public information
with respect to this Agreement, or otherwise cooperate
in any way with any party offering a Competing Proposal.
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(b) Except as otherwise expressly provided herein or as otherwise
agreed to by Parent in writing on or prior to the date hereof, the Stockholder
hereby covenants that until this Agreement is terminated, the Stockholder shall
not directly or indirectly (v) grant any proxy, power of attorney or other
authorization or consent with respect to any of its Stockholder Shares; (w)
deposit any of its Stockholder Shares into a voting trust, or enter into a
voting agreement or arrangement with respect to any of its Stockholder Shares
other than this Agreement; or (x) take any other action that would in any way
restrict, limit or interfere with the performance of the Stockholder's
obligations hereunder or the transactions contemplated hereby (the restrictions
in clauses (v), (w), and (x) hereof together with any restrictions contained in
the Nondisclosure Agreement between Shareholder and the Company dated January
15, 2008, being referred to as the "Restrictions"). Notwithstanding the
forgoing, the Stockholder may transfer or permit the transfer of some or all of
its Stockholder Shares to any person, provided, however, that, as a condition
precedent to such transfer, (a) such transfer does not adversely affect Parent
or Company, including without limitation from a tax perspective or by causing
any delay or by reducing the number of the Stockholder Shares subject to this
Agreement, and (b) the transferee executes and delivers an agreement in the same
form as this Agreement (including the Restrictions) to Parent prior to the
transfer.
(c) The Stockholder agrees that it shall not issue any press release
or make any other statement to the public with respect to the Merger Agreement
or any other transaction contemplated by the Merger Agreement without the prior
consent of Parent, except as may be required by applicable law.
Section 3 Voting.
Subject to the terms of this Agreement, the Stockholder hereby irrevocably
and unconditionally agrees until this Agreement is terminated:
(a) to vote (or cause to be voted) all of its Stockholder Shares
(and any other securities in respect of which such Stockholder has the right to
vote) which are eligible to vote at any meeting of holders of Company Capital
Stock and in any action by written consent in favor of the Merger Agreement and
the transactions contemplated thereby, (the "Merger Transactions");
(b) to vote (or cause to be voted) all of its Stockholder Shares
(and any other securities in respect of which such Stockholder has the right to
vote) which are eligible to vote at any meeting of holders of Company Capital
Stock and in any action by written consent, against any Competing Proposal;
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(c) not, without the prior written consent of Parent, to requisition
or join in any requisition of any meeting of holders of Company Capital Stock,
except with respect to the provisions of this Agreement;
(d) to vote in favor of adoption of any proposal or action that is
reasonably determined by Company to be necessary or appropriate to submit for
stockholder approval in order to facilitate the consummation of the transactions
contemplated by the Merger Agreement, including, without limitation, the Merger
Transactions, and to vote against approval of any proposal made in opposition to
or competition with the consummation of the transactions contemplated by the
Merger Agreement, including, without limitation the Merger Transactions.
Section 4 Voting as to Other Matters. For the avoidance of doubt, this
Agreement shall not require the Stockholder to vote or grant any proxy to vote,
or refrain from voting or granting any proxy to vote, on any matter other than
those specified in this Agreement.
Section 5 Remedies. In case any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by any party
hereto, the party or parties entitled to the benefit of such covenants or
agreements may proceed to protect and enforce its or their rights, either by
suit in equity and/or action at law, including, but not limited to, an action
for damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Agreement. The
rights, powers and remedies of the parties under this Agreement are cumulative
and not exclusive of any other right, power or remedy which such parties may
have under any other agreement or law. No single or partial assertion or
exercise of any right, power or remedy of a party hereunder shall preclude any
other or further assertion or exercise thereof.
Section 6 Successors and Assigns. Except as otherwise expressly provided
herein, this Agreement shall bind and inure to the benefit of Company, Parent
and the Stockholder and the respective successors and permitted assigns.
Section 7 Duration of Agreement. Except as specifically set forth herein,
the rights and obligations of Parent, Company and the Stockholder set forth
herein shall survive until, and this Agreement shall terminate upon, either the
consummation of the Merger or termination of the Merger Agreement.
Section 8 Entire Agreement. This Agreement, together with the other
writings referred to herein or delivered pursuant hereto which form a part
hereof, contains the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous arrangements
or understandings with respect thereto.
Section 9 Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or duly sent by first
class registered, certified or overnight mail, postage prepaid, or telecopied
with a confirmation copy by regular mail, addressed or telecopied, as the case
may be, to such party at the address or telecopier number, as the case may be,
set forth below or such other address or telecopier number, as the case may be,
as may hereafter be designated in writing by the addressee to the addressor
listing all parties:
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(i) if to Company, to:
Cytogen Corporation
000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Senior Vice President, Finance and CFO
with a copy to:
Xxxxxx, Xxxxx & Bockius, LLP
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxx
(ii) if to the Stockholder:
to the address set forth on the signature page hereto
(iii) if to Parent:
EUSA Pharma Inc.
Heritage Gateway Centre
0000 X. Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: General Counsel
with copy to:
XxXxxxxx & English, LLP
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Esq.
All such notices, requests, consents and communications shall be deemed to have
been received (a) in the case of personal delivery, on the date of such
delivery, (b) in the case of mailing, on the third business day following the
date of such mailing, (c) in the case of overnight mail, on the first business
day following the date of such mailing, and (d) in the case of facsimile
transmission, when confirmed by facsimile machine report.
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Section 10 Changes. The terms and provisions of this Agreement may be
modified or amended, or any of the provisions hereof waived, temporarily or
permanently, only pursuant to the written consent of Parent, Company and the
Stockholder.
Section 11 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
Section 12 Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
Section 13 Nouns and Pronouns. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
Severability. Any provision of this Agreement 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.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, excluding choice of law rules
thereof.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement on the
date first above written.
COMPANY
By:
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Name:
Title:
PARENT
By:
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Name:
Title:
STOCKHOLDER
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Name:
Address:
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