Exhibit 99.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 24, 1998, between Mylan
Laboratories Inc., a Pennsylvania corporation ("Parent"), and the persons listed
on Schedule A hereto (individually, a "Stockholder" and collectively, the
"Stockholders").
WHEREAS, Parent and Penederm Incorporated, a Delaware corporation (the
"Company"), propose to enter into an Agreement and Plan of Merger, dated the
date hereof (as the same may be amended or supplemented, the "Merger Agreement")
providing for the merger of MLI Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of Parent ("Subsidiary"), with the Company (the
"Merger");
WHEREAS, each Stockholder is the record and beneficial owner of the
number of shares of common stock, par value $.01 per share, of the Company (the
"Company Common Stock") set forth opposite such Stockholder's name on Schedule A
hereto; such securities, as they may be adjusted by stock dividend, stock split,
recapitalization, combination or exchange of shares, merger, consolidation,
reorganization or other change or transaction of or by the Company, together
with securities that may be acquired after the date hereof by such Stockholder,
including Company Common Stock issuable upon the exercise of options to purchase
Company Common Stock (as the same may be adjusted as aforesaid), being
collectively referred to herein as the "Securities"; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Subsidiary have requested that the Stockholders enter into
this Agreement (capitalized terms not otherwise defined herein shall have the
meanings set forth in the Merger Agreement);
NOW, THEREFORE, to induce Parent and Subsidiary to enter into, and in
consideration of them entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein and intending to be legally bound hereby, the parties hereby agree as
follows:
1. COVENANTS OF THE STOCKHOLDERS. Each Stockholder, severally and not jointly,
agrees as follows:
(a) Each Stockholder shall not, except as contemplated by the terms of this
Agreement, (i) sell, transfer, pledge, assign or otherwise dispose of, or
enter into any agreement, option or other arrangement (including any profit
sharing arrangement) or understanding with respect to the sale, transfer,
pledge, assignment or other disposition of, the Securities to any person
other than Parent or Parent's designee, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power-of-
attorney or otherwise, with respect to the Securities or (iii) take any
other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby; provided, however, that any Stockholder that is an individual may
transfer all or any part of his or her Securities to any sibling or any
other member of his or her immediate family, any of his or her lineal
descendants or any trust for the benefit of any of them, if the recipient
of the Securities agrees in advance in writing delivered to Parent to be
bound by this Agreement.
(b) Until the Merger is consummated or the Merger Agreement is terminated, the
Stockholder shall not, nor shall the Stockholder permit any investment
banker, financial adviser, attorney, accountant or other representative or
agent acting on behalf of or at the direction of the Stockholder (a
"Stockholder Representative") to, directly or indirectly (i) solicit,
initiate or encourage (including by way of furnishing information), or take
any other action designed or reasonably likely to facilitate, any inquiries
or the making of any proposal which constitutes, or may reasonably be
expected to lead to, any Takeover Proposal (as defined in the Merger
Agreement) or (ii) participate in any discussions or negotiations regarding
any Takeover Proposal. Without limiting the foregoing, it is understood
that any violation of the restrictions set forth in the preceding sentence
by a Stockholder Representative shall be deemed to be a violation of this
Section 1(b) by the Stockholder.
(c) At any meeting of stockholders of the Company called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including
by written consent) with respect to the Merger and the Merger Agreement is
sought from the stockholders of the Company, each Stockholder shall,
including by initiating a written consent solicitation if requested by
Parent, vote (or cause to be voted) such Stockholder's Securities in favor
of approving the Merger, the adoption of the Merger Agreement and the
approval of the other transactions contemplated by the Merger Agreement and
the calling of a special meeting of the stockholders of the Company to
consider any of the foregoing. At any meeting of stockholders of the
Company or at any adjournment thereof or in any other circumstances upon
which the Stockholder's vote, consent or other approval is sought, such
Stockholder shall vote (or cause to be voted) such Stockholder's Securities
against (i) any merger agreement or merger (other than the Merger Agreement
and the Merger), consolidation, combination, sale or license of substantial
assets, reorganization, recapitalization, dissolution, liquidation or
winding up of or by the Company or any other Takeover Proposal (as defined
in the Merger Agreement) (collectively, "Alternative Transactions"), or
(ii) any amendment of the Company's Certificate of Incorporation or by-laws
or other proposal or transaction involving the Company or any of its
subsidiaries or any motion at a meeting of stockholders of the Company,
which amendment or other proposal or transaction or motion would in any
manner impede, frustrate, prevent or nullify, the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement including any consent to the treatment of any Securities in or in
connection with such transaction (collectively, "Frustrating
Transactions").
2. GRANT OF IRREVOCABLE PROXY COUPLED WITH AN INTEREST; APPOINTMENT OF PROXY.
(a) Each Stockholder hereby irrevocably grants to, and appoints, any individual
who shall be designated by Parent, and each of them, such Stockholder's
proxy and
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attorney-in-fact (with full power of substitution), for and in the name,
place and stead of such Stockholder, to vote such Stockholder's Securities,
or grant a consent or approval in respect of such Securities, at any
meeting of stockholders of the Company or at any adjournment thereof or in
any other circumstances upon which their vote, consent or other approval is
sought, (i) in favor of the Merger, the adoption by the Company of the
Merger Agreement and the approval of the other transactions contemplated by
the Merger Agreement and the calling of a special meeting of the
stockholders of the Company to consider any of the foregoing, and (ii)
against any Alternative Transaction or Frustrating Transaction.
(b) Each Stockholder represents that any proxies heretofore given in respect of
such Stockholder's Securities are not irrevocable, and that any such
proxies are hereby revoked.
(c) EACH STOCKHOLDER HEREBY AFFIRMS THAT THE PROXY SET FORTH IN THIS SECTION 2
IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE UNTIL SUCH TIME AS THIS
AGREEMENT TERMINATES IN ACCORDANCE WITH ITS TERMS. Such Stockholder hereby
further affirms that such irrevocable proxy is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given
to secure the performance of the duties of such Stockholder under this
Agreement. Such Stockholder hereby ratifies and confirms all that the
individual voting such irrevocable proxy may lawfully do or cause to be
done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212 of the
DGCL. Such irrevocable proxy shall be valid until the later to occur of
(i) one year from the date hereof or (ii) the termination of this Agreement
in accordance with its terms.
3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each Stockholder
hereby, severally and not jointly, represents and warrants to Parent as follows:
(a) AUTHORIZATION. The Stockholder has the legal capacity to execute, deliver
and perform this Agreement. This Agreement constitutes a valid and binding
obligation of the Stockholder enforceable against the Stockholder in
accordance with its terms. If the Stockholder is married and the
Securities constitute community property under applicable law, this
Agreement has been duly authorized, executed and delivered by, and
constitutes the valid and binding agreement of, the Stockholder's spouse
enforceable against such spouse in accordance with its terms.
(b) NO CONFLICT. The execution, delivery and performance by the Stockholder of
this Agreement and the consummation of the transactions contemplated hereby
do not and will not (i) result in any breach or violation of or be in
conflict with or constitute a default under any law or agreement or
arrangement to which the Stockholder is a party or by which the Stockholder
is bound, (ii) require any filing with or authorization by any governmental
entity or (iii) require any consent or other action by any person under,
constitute a default under, or give rise to any right of termination,
cancellation or acceleration of a loss of any benefit to
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which the Stockholder is entitled under any provision of any agreement or
other instrument binding on the Stockholder.
(c) OWNERSHIP OF SECURITIES. Each Stockholder's Securities and the
certificates representing such Securities are now, and at all times during
the term hereof will be, held by each Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, and the Stockholder has good
and marketable title to such Securities, free and clear of any (i) liens,
proxies, voting trusts or agreements, understandings or arrangements and
(ii) pledges, restrictions, charges or other adverse claims of any kind or
nature. Each Stockholder owns of record or beneficially no securities of
the Company, or any options, warrants or rights exercisable for securities
of the Company, other than the Securities set forth opposite the
Stockholder's name on Schedule A hereto.
(d) MERGER AGREEMENT. Each Stockholder understands and acknowledges that
Parent and Subsidiary are entering into the Merger Agreement in reliance
upon the Stockholder's execution and delivery of this Agreement.
4. FURTHER ASSURANCES. Each Stockholder will, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, consents and other instruments as Parent
may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement and to vest the power to vote such
Stockholder's Securities as contemplated by Section 2.
5. ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by, the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective heirs, successors, executors, administrators and
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
6. TERMINATION. This Agreement, and all rights and obligations of the parties
hereunder, shall terminate upon the earliest to occur of the Effective Time or
the termination of the Merger Agreement in accordance with its terms. Nothing
in this Section 6 shall relieve any party from liability for willful breach of
this Agreement.
7. STOP TRANSFER. The Company agrees with, and covenants to, Parent that the
Company shall not register the transfer of any certificate representing any
Stockholder's Securities unless such transfer is made in accordance with the
terms of this Agreement.
8. GENERAL PROVISIONS.
(a) EXPENSES. All costs and expenses incurred by Parent in connection with
this Agreement and the transactions contemplated hereby shall be paid by
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Parent. All costs and expenses incurred by the Stockholders in connection
with this Agreement and the transactions contemplated hereby shall be paid
by the Company.
(b) AMENDMENTS. This Agreement may not be amended except by an instrument in
writing signed by each of the parties hereto.
(c) NOTICE. All notices and other communications hereunder shall be in writing
and shall be deemed given upon receipt to the parties at the following
addresses (or at such other address for a party as shall be specified by
like notice):
(i) if to Parent, to:
Mylan Laboratories Inc.
000 Xxxxxxxx Xxxxx Xxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, XX 00000
Telecopy Number (000) 000-0000
with a copy to:
Xxxx X. Xxxxxx, Esquire
Xxxxxxxx Ingersoll Professional Corporation
One Oxford Centre
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Telecopy Number (000) 000-0000
and
(ii) if to a Stockholder, to the address set forth under
the name of such Stockholder on Schedule A hereto:
with a copy to:
Xxxxx Xxxxxx, Esquire
Xxxxxx Xxxxxx White & XxXxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Telecopy Number (000) 000-0000
(d) INTERPRETATION. When a reference is made in this Agreement to a Section,
such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. Wherever the words "include", "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by the
words "without limitation".
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(e) COUNTERPARTS. This Agreement may be executed in two or more counterparts,
all of which shall be considered one and the same agreement and shall
become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
(f) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement (including
the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof and (ii) is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
(g) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without regard to any
applicable conflicts of law.
9. STOCKHOLDER CAPACITY. As of the date of this Agreement, each of the
Stockholders is a director of the Company. None of the Stockholders makes any
agreement or understanding herein in his or her capacity as a director or
officer of the Company. Each Stockholder signs solely in his or her capacity as
the record holder and beneficial owner of, or the trustee of a trust whose
beneficiaries are the beneficial owners of, such Stockholder's Securities and
nothing herein shall limit or affect any actions taken by a Stockholder in his
or her capacity as an officer or director of the Company to the extent
specifically permitted by the Merger Agreement.
10. ENFORCEMENT. The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in a court of the United States.
This being in addition to any other remedy to which they are entitled at law or
in equity. In addition, each of the parties hereto waives any right to trial by
jury with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
EACH STOCKHOLDER AGREES THAT, IN CONNECTION WITH ANY LEGAL SUIT OR PROCEEDING
ARISING WITH RESPECT TO THIS AGREEMENT, IT SHALL SUBMIT TO THE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AND AGREES TO
VENUE IN SUCH COURTS. EACH STOCKHOLDER HEREBY APPOINTS THE SECRETARY OF THE
COMPANY AS HIS OR HER AGENT FOR SERVICE OF PROCESS FOR PURPOSES OF THE
FOREGOING SENTENCE ONLY. EACH PARTY HERETO WAIVES ANY RIGHT TO JURY TRIAL IN
CONNECTION WITH ANY SUCH SUIT OR PROCEEDING.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MYLAN LABORATORIES INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
STOCKHOLDERS
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxx
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Xx. Xxxxxx X. Xxxxx, Ph.D.
/s/Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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SCHEDULE A
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STOCKHOLDER SECURITIES HELD
--------------------------------------------------------- ------------------------------------
Xxxxxx and Xxxxxx Xxxxxxxxx 27,725
c/o Penederm Incorporated
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Xxxxx Xxxxxxx 15,000
c/o Penederm Incorporated
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Xx. Xxxxxx X. Xxxxx, Ph.D. 10,000
c/o Penederm Incorporated
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Xxxxx Xxxxxxx 7,840
c/o Penederm Incorporated
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxx 1,000
c/o Penederm Incorporated
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxx 0
c/o Penederm Incorporated
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Xxxxxx X. Xxxxx 0
c/o Penederm Incorporated
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
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