VOTING AGREEMENT
Exhibit 10.5
THIS
VOTING AGREEMENT (this “Agreement”) is made and entered
into as of November 1,
2019, by and among Cerecor, Inc., a Delaware corporation
(“Cerecor”),
Aytu Bioscience Inc., a Delaware corporation (the
“Company”) and
the stockholder of the Company listed on Schedule A hereto
(“Securityholder”). Capitalized
terms used but not defined herein are used as they are defined in
the Purchase Agreement (as defined below).
RECITALS:
A. Securityholder
is an officer of the Company and owns beneficially and of record
the shares of capital stock set forth opposite
Securityholder’s name on Schedule A hereto (such shares
of capital stock, together with any other shares of capital stock
of the Company acquired by Securityholder after the date hereof and
during the term of this Agreement, being collectively referred to
herein as the “Subject
Securities”).
B. Upon
the date hereof, Cerecor and the Company have consummated that
certain Asset Purchase Agreement, dated as of October 31, 2019 (the
“Purchase
Agreement”) between Cerecor and the Company, pursuant
to which the Company has issued 9,805,845 shares of its Series G
Preferred Stock to Cerecor (the “Preferred Stock”).
C. Pursuant
to the Purchase Agreement the Company has also agreed to seek
approval by its stockholders of the conversion into common stock of
the Company of all the outstanding shares of Preferred Stock (the
“Preferred
Conversion”).
D. In
order to facilitate the Preferred Conversion and the consummation
of the Merger Agreement (as defined below), Securityholder, solely
in Securityholder’s capacity as holder of the Subject
Securities and as an officer of the Company, 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. Agreement to Vote Shares. At
any meeting of stockholders of the Company or at any adjournment
thereof that may take place between now and the date that is twelve
(12) months from the date hereof (the “Agreement Period”), in any action
by written consent or in any other circumstances upon which
Securityholder’s vote, consent or other approval is sought
during such period relating to the Preferred Conversion,
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 the Preferred Conversion and (ii) against any
proposal, amendment, matter or agreement that would in any manner
impede, frustrate, prevent or nullify the Preferred Conversion.
Additionally, during the Agreement Period, Securityholder agrees to
vote all of the Subject Securities in favor of the proposed
transactions set forth in that certain Agreement and Plan of
Merger, dated as of September 12, 2019, by and among the Company,
Innovus Pharmaceuticals, Inc., a Nevada corporation, and the other
parties thereto (the “Merger
Agreement”). 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 sentences whether or not
Securityholder’s vote, consent or other approval is sought on
only one or on any combination of the matters set forth in this
Section 1 and at any time or at multiple times during the term of
this Agreement.
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2. Opportunity to Review.
Securityholder acknowledges receipt of the Purchase Agreement and
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 Purchase Agreement, the Merger
Agreement and this Agreement, and (ii) the opportunity to review
and discuss the Purchase Agreement, the Merger Agreement and this
Agreement with his, her or its own advisors and legal
counsel.
3. Public Disclosure;
Confidentiality.
(a) The Securityholder
understands that it may be the recipient of confidential
information of the Company (“Confidential Information”) during
the term of this Agreement and that such information may contain or
constitute material non-public information concerning the Company.
The Securityholder acknowledges that trading in the securities of
any party to this Agreement while in possession of material
nonpublic information or communicating that information to any
other Person who trades in such securities could subject the
applicable party to liability under the U.S. federal and state
securities laws, and the rules and regulations promulgated
thereunder, including Section 10(b) of the Securities Exchange Act
of 1934, as amended, and Rule 10b-5 promulgated thereunder. The
Securityholder agrees that it and its Affiliates will not disclose
Confidential Information in its possession, nor will it trade in
the securities of the Company while in possession of material
nonpublic information or at all until the Securityholder and its
Affiliates can do so in compliance with all applicable laws and
without breach of this Agreement.
(b) If the
Securityholder is required to disclose any Confidential Information
by legal process, the Securityholder shall: (a) take reasonable
steps to preserve the privileged nature and confidentiality of the
Confidential Information, including requesting that the
Confidential Information not be disclosed to non-parties or the
public; (b) give the Company prompt prior written notice of such
request or requirement so that the Company may seek an appropriate
protective order or other remedy; and (c) cooperate with the
Company (at the Company’s expense) to obtain such protective
order. In the event that such protective order or other remedy is
not obtained, the Securityholder (or such other Persons to whom
such request is directed) will furnish only that portion of the
Confidential Information which, on the advice of the
Securityholder’s counsel, is legally required to be disclosed
and, upon the Company’s request, use its commercially
reasonable efforts to obtain assurances that confidential treatment
will be accorded to such information.
4. Representations and Warranties of
Securityholder. Securityholder hereby represents and
warrants as follows:
(a) Securityholder (i)
is the record 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 beneficially own any securities
of the Company (including options, warrants or convertible
securities) other than the Subject Securities.
(b) Except with respect
to obligations under the Company’s Bylaws, Securityholder has
the sole right to transfer, 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.
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(c) Securityholder, if
not a natural person: (i) is duly organized, validly existing and
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.
(e) 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.
5. Termination. This Agreement
shall terminate automatically upon the later to occur of the
approval of the Preferred Conversion by the Company’s
stockholders or the approval of the Merger Agreement by such
stockholders; provided, however, that this Agreement
will also terminate if the approval of the Preferred Conversion has
occurred and the Company has elected to terminate the Merger
Agreement in accordance with its terms prior to approval of the
Merger Agreement by the Company’s stockholders. 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 breach of any provision of this Agreement
prior to such termination.
6. Further Covenants and
Assurances. During the term of this Agreement,
Securityholder hereby, to the extent permitted by Laws, waives and
agrees not to exercise any dissenters’ or appraisal rights,
or other similar rights, with respect to any Subject Securities
which may arise in connection with the transactions contemplated by
the Merger Agreement.
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7. Deposit. Securityholder shall
cause a counterpart of this Agreement to be deposited, in
electronic or physical form, with the Company at its principal
place of business or registered office where it shall be subject to
the same right of examination by any stockholder, in person or by
agent or attorney, as are the books and records of the
Company.
8. 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 and Cerecor
irreparable harm. Accordingly, Securityholder agrees that in the
event of any breach or threatened breach of this Agreement, the
Company and Cerecor, 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.
9. Notices. All notices and other
communications hereunder shall be in writing and shall be deemed to
have been duly given when personally delivered, or if sent by
United States certified mail, return receipt requested, postage
prepaid, shall be deemed duly given on delivery by United States
Postal Service, or if sent by e-mail or receipted overnight courier
services shall be deemed duly given on the Business Day received if
received prior to 5:00 p.m. local time or on the following Business
Day if received after 5:00 p.m. local time or on a non-Business
Day, addressed to the respective parties as follows:
(i)
if to the Company,
to:
000
Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxxx
with a
required copy (which shall not constitute notice) to:
Xxxxxx & Whitney LLP
000
X. Xxxx Xxxxxx, Xxxxx 0000
Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
(ii)
if to Cerecor,
to:
Cerecor,
Inc.
000
Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxx
with a
required copy (which shall not constitute notice) to:
Xxxxxx
Xxxxxxx Xxxxx & Xxxxxx LLP
0000
Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX
00000
Attention: Xxx
Xxxxxxxx
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(iii)
if to
Securityholder, to the address set forth on Schedule A hereto.
10. 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 Law, each party hereby waives any provision of
Law that renders any such provision prohibited or unenforceable in
any respect.
11. Entire Agreement/Amendment.
This Agreement (including the provisions of the Purchase 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.
12. 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 11 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.
13. 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
By:
Name:
Title:
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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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AYTU
BIOSCIENCE INC.
By:
Name:
Title:
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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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CERECOR,
INC.
By:
Name:
Title:
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[Signature Page to
Voting Agreement]
