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EXHIBIT 99.3
VOTING AGREEMENT
VOTING AGREEMENT (this "AGREEMENT") dated as of October 1, 2001, by and
among Medicis Pharmaceutical Corporation, a Delaware corporation ("PARENT"), MPC
Merger Corp., a Delaware corporation and wholly owned subsidiary of Parent
("MERGER SUB"), FS Private Investments LLC, a Delaware limited liability company
("FS PRIVATE"), Xxxxxx Xxxx Investors II L.P., a Delaware limited partnership
("FS II"), FS Employee Investors LLC, a Delaware limited liability company ("FS
EMPLOYEE"), FS Ascent Investments LLC, a Delaware limited liability company ("FS
ASCENT"), and FS Parallel Fund L.P., a Delaware limited partnership ("FS
PARALLEL," together with FS Private, FS II, FS Employee and FS Ascent, each a
"STOCKHOLDER" and collectively the "STOCKHOLDERS").
WHEREAS, each Stockholder desires that Parent, Merger Sub and Ascent
Pediatrics, Inc., a Delaware corporation (the "COMPANY"), enter into an
Agreement and Plan of Merger dated the date hereof (the "MERGER AGREEMENT";
capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement) providing for the merger of Merger Sub with and into
the Company (the "MERGER") upon the terms and subject to the conditions set
forth in the Merger Agreement; and
WHEREAS, each Stockholder and the Company are executing this Agreement
as an inducement to Parent and Merger Sub to enter into and execute the Merger
Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Parent and Merger Sub of the Merger Agreement and the mutual covenants,
conditions and agreements contained herein and therein, the parties agree as
follows:
1. Representations and Warranties.
(a) Each Stockholder severally represents and warrants to Parent
and Merger Sub as follows:
(i) Such Stockholder is the record and beneficial owner of (A)
the number of depositary shares ("DEPOSITARY SHARES") issued pursuant
to that certain depositary agreement (the "DEPOSITARY AGREEMENT") dated
February 16, 1999 by and among the Company, State Street Bank and Trust
Company and Alpharma USPD, Inc., each such Depositary Share evidencing
one share of Company common stock, par value $0.00004 per share, of the
Company (the "COMPANY COMMON STOCK") and (B) the number of shares of
Series H Preferred Stock, par value $0.01 (the "SERIES H PREFERRED
STOCK"), set forth opposite such Stockholder's name on SCHEDULE A
hereto (such Depositary Shares and Series H Preferred Stock, together
with any other Depositary Shares, Series H Preferred Stock or other
capital stock of the Company acquired after the date hereof (including
through the distribution of depositary property pursuant to the
Depositary Agreement, the conversion of convertible securities or the
exercise of any stock options, warrants or similar instruments) being
collectively referred to herein as the "SUBJECT
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SHARES"). The Subject Shares constitute the only shares, with respect
to which such Stockholder is the record or beneficial owner, of
Depositary Shares, Series H Preferred Stock or other capital stock of
the Company or options, warrants or other rights (whether or not
contingent) to acquire such shares of capital stock of the Company that
are or may be entitled to vote on the Merger or the Merger Agreement at
any meeting of stockholders of the Company called to vote upon the
Merger or the Merger Agreement. Such Stockholder has the sole right to
vote and Transfer (as defined below in SECTION 4(a) below) the Subject
Shares set forth opposite its name on SCHEDULE A hereto, and none of
such Subject Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting or the Transfer
of the Subject Shares, except as provided by this Agreement (it being
understood that any pledge of the Pledged Shares (as defined below)
shall not be a breach of this representation). Such Stockholder has all
requisite power and authority to enter into this Agreement and to
perform its obligations hereunder. Such Stockholder is duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization. The execution and delivery of this
Agreement by such Stockholder and the performance by such Stockholder
of its obligations hereunder have been duly authorized by all necessary
action on the part of such Stockholder. This Agreement has been duly
executed and delivered by, and constitutes a valid and binding
agreement of, such Stockholder, enforceable against such Stockholder in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws and except
that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding for such remedy may be brought (collectively, the
"ENFORCEABILITY EXCEPTIONS").
(ii) Neither the execution and delivery of this Agreement nor
the performance by such Stockholder of its obligations hereunder will
result in a violation of, or a default under, or conflict with, (A) any
provision of its certificate of incorporation, bylaws, partnership
agreement, limited liability company agreement or similar
organizational documents, (B) any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind (other
than as may relate to the Pledged Shares but subject to the proviso set
forth in (iii) below) to which such Stockholder is a party or bound or
to which the Subject Shares are subject, except, in the case of clause
(B) above, as would not prevent, delay or otherwise materially impair
such Stockholder's ability to perform its obligations hereunder.
Execution, delivery and performance of this Agreement by such
Stockholder will not reasonably be expected to violate, or require any
consent, approval or notice under, any provision of any judgment,
order, decree, statute, law, rule or regulation applicable to such
Stockholder or the Subject Shares, except (x) for any reports under
Sections 13(d) and 16 of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated hereby
or (y) as would not reasonably be expected to prevent, delay or
otherwise materially impair such Stockholder's ability to perform its
obligations hereunder.
(iii) The Subject Shares and the certificates representing
such Subject Shares are held by such Stockholder free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
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whatsoever, except for any such encumbrances arising hereunder or
pursuant to the pledge of any Subject Shares by such Stockholder prior
to the date hereof to a financial institution or a brokerage firm (the
"PLEDGED SHARES"); provided, however, that such Stockholder represents
that any such arrangement regarding such Pledged Shares shall not
prevent, delay or otherwise materially impair such Stockholder's
ability to execute and deliver this Agreement or perform its
obligations hereunder and such Stockholder shall use its reasonable
efforts to obtain an acknowledgment by the pledgee of the terms of this
Agreement and such pledgee's agreement to vote the Pledged Shares (if
and to the extent the voting power of the Pledged Shares is being or to
be exercised by pledgee) in accordance with SECTION 2 hereof.
(iv) No broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission based upon arrangements made by or on
behalf of such Stockholder in connection with its entering into this
Agreement. Xxxxx, Xxxxxxxx & Xxxx, Inc. is the Company's Investment
banker with respect to the Merger.
(v) Such Stockholder understands and acknowledges that Parent
and Merger Sub are entering into the Merger Agreement in reliance upon
such Stockholder's execution and delivery of this Agreement.
(b) Parent and Merger Sub represent and warrant to each
Stockholder that the execution and delivery of this Agreement by Parent and
Merger Sub and the consummation by Parent and Merger Sub of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of Parent and Merger Sub.
2. Voting Agreements. Each Stockholder severally agrees with, and
covenants to, Parent and Merger Sub that, during the Term (as defined in SECTION
8 below) of this Agreement, at any meeting of stockholders of the Company or at
any adjournment thereof or in any other circumstances upon which a vote, consent
or other approval (including by written consent) is sought, such Stockholder
shall, including by executing a written consent solicitation if requested by
Parent or Merger Sub, vote (or cause to be voted) the Subject Shares in favor of
the adoption by the Company of the Merger Agreement and the approval of the
terms thereof and each of the other transactions expressly contemplated by the
Merger Agreement. Notwithstanding the foregoing, if at the time of the Company
Stockholders' Meeting the Company has accepted a Superior Proposal or the board
of directors of the Company has withdrawn, modified or changed its
recommendation of the Merger Agreement or the Merger in a manner adverse to
Parent, each Stockholder's obligation under this Agreement to vote Subject
Shares in favor of or consent to the adoption by the Company of the Merger
Agreement and approval of the terms thereof shall be automatically modified so
that the number of Subject Shares (other than the Series H Preferred Stock which
shall not be affected by this sentence) which such Stockholder shall be so
obligated to vote in favor of or consent to such matters shall equal the product
of (x) 25% of the number of Depositary Shares issued and outstanding on the
record date (the "RECORD DATE") for the Company Stockholders' Meeting and (y) a
fraction, the numerator of which is the number of Depositary Shares issued and
beneficially owned by such Stockholder on the Record Date and
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the denominator of which is all Depositary Shares issued and beneficially owned
(without duplication) by the Stockholders on the Record Date.
3. Payment for Subject Shares in Excess of the Offer Price. Each
Stockholder severally (and not jointly) hereby agrees that, if the Company is
obligated to pay the Termination Fee, then such Stockholder shall pay Parent on
demand an amount (such "STOCKHOLDER'S AMOUNT") equal to the product of $3.0
million multiplied by a fraction (such "STOCKHOLDER'S PERCENTAGE"), the
numerator of which is the number of Depositary Shares issued and beneficially
owned by such Stockholder on the date hereof and the denominator of which is all
Depositary Shares issued and beneficially owned (without duplication) by the
Stockholders on the date hereof. Each Stockholder severally (and not jointly)
hereby agrees to reimburse Parent and Merger Sub for any fees and expenses
(including reasonable attorneys fees) incurred by Parent and Merger Sub in
connection with any successful litigation, dispute or other attempt to recover
such Stockholder's Amount in the event that such Stockholder fails to pay such
amount to Parent upon written demand.
4. Other Covenants. Each Stockholder severally agrees with, and
covenants to, Parent and Merger Sub during the Term of this Agreement as
follows:
(a) Such Stockholder shall not after the date hereof (i) sell,
transfer, pledge, assign or otherwise dispose of (including by gift)
(collectively, "TRANSFER"), or consent to any Transfer of, any Subject Shares or
any interest therein, except pursuant to the Merger, (ii) enter into any
contract, option or other agreement with respect to any Transfer of any or all
of the Subject Shares or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to the Subject
Shares, except for this Agreement or (iv) deposit the Subject Shares into a
voting trust or enter into a voting agreement or voting arrangement with respect
to the Subject Shares; provided, that any such Stockholder may Transfer any of
the Subject Shares to any other Stockholder who is on the date hereof a party to
this Agreement; provided, further, that the restrictions in this SECTION 4 shall
not be deemed violated by any Transfer of Subject Shares pursuant to a cashless
exercise of stock options.
(b) Such Stockholder hereby waives any rights of appraisal, or
rights to dissent from the Merger, that such Stockholder may have.
5. Certain Events. Each Stockholder agrees that this Agreement
and the obligations hereunder shall attach to such Stockholder's Subject Shares
and shall be binding upon any person or entity to which legal or beneficial
ownership of such subject Shares shall pass, whether by operation of law or
otherwise, including without limitation such Stockholder's administrators or
successors. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of the
Company affecting the Common Stock, or the acquisition of additional Depositary
Shares or shares of Common Stock or other voting securities of the Company by
any Stockholder, the number of subject shares listed on SCHEDULE A beside the
name of such Stockholder shall be adjusted appropriately and this Agreement and
the obligations hereunder shall attach to any additional Depositary Shares or
shares of Common Stock or other voting securities of the Company issued to or
acquired by such Stockholder.
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6. Stockholder Capacity. No person executing this Agreement who
is or becomes during the term hereof a director of the Company makes any
agreement or understanding herein in his or her capacity as such director. Each
Stockholder signs solely in his or her capacity as the record and beneficial
owner of such Stockholder's Subject Shares.
7. Further Assurances. Each Stockholder shall, upon request of
Parent or Merger Sub, execute and deliver any additional documents and take such
further actions as may reasonably be deemed by Parent or Merger Sub to be
necessary or desirable to carry out the provisions hereof.
8. Termination. This Agreement, and all rights and obligations of
the parties hereunder, shall terminate upon (and shall only be effective from
the date hereof until) the first to occur of (the "TERM") (i) the Effective Time
of the Merger or (ii) the date upon which the Merger Agreement is terminated in
accordance with its terms as in effect as of the date hereof; provided, however,
that (x) SECTIONS 3 and 9 shall survive any termination of this Agreement and
(y) termination of this Agreement pursuant to Clause (ii) above shall not
relieve any party hereto from liability for any willful and knowing breach
hereof prior to such termination.
9. Miscellaneous.
(a) All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) 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 the Company, Parent
or Merger Sub, to the appropriate address set forth in Section 10.01 of the
Merger Agreement; and (ii) if to a Stockholder, to the appropriate address set
forth on SCHEDULE A hereto.
(b) The descriptive headings contained in this Agreement are
included for convenience of reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
(c) This Agreement may be executed and delivered (including by
facsimile) in two or more counterparts, and by the different parties hereto in
separate counterparts, each 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 and shall become effective as to any Stockholder when one or more
counterparts have been signed by each of the Company, Parent and Merger Sub and
such Stockholder and delivered to the Company, Parent and Merger Sub and such
Stockholder.
(d) This Agreement (including the documents and instruments
referred to herein) 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 this Agreement is not intended to
confer upon any other person (other than Parent and Merger Sub) any rights or
remedies hereunder.
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(e) 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 laws thereof.
(f) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly provided by SECTION 4(a). Any
assignment in violation of the foregoing shall be void.
(g) As between any Stockholder, Parent and Merger Sub, each of
such parties agrees that irreparable damage to the other, non-breaching party
would occur and that such non-breaching party would not have any adequate remedy
at law 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 non-breaching party shall be entitled to an
injunction or injunctions to prevent breaches by the other party of this
Agreement and to enforce specifically the terms and provisions of this
Agreement, this being in addition to any other remedy to which it may be
entitled at law or in equity.
(h) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(i) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in writing and
signed by such party.
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IN WITNESS WHEREOF, the Company, Parent, Merger Sub and the
Stockholders party hereto have caused this Agreement to be duly executed and
delivered as of the date first written above.
Medicis Pharmaceutical Corporation,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Name: Xxxx X. Xxxxxxxx, Xx.
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Title: Executive Vice-President &
Chief Financial Officer
MPC Merger Corp., a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Name: Xxxx X. Xxxxxxxx, Xx.
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Title: Secretary & Treasurer
STOCKHOLDERS:
XXXXXX XXXX INVESTORS II L.P., a Delaware limited
Partnership, FS EMPLOYEE INVESTORS LLC, a
Delaware limited liability company, and
FS PARALLEL FUND L.P., a Delaware limited partnership
BY: FS PRIVATE INVESTMENTS LLC, Manager
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Managing Member
FS ASCENT INVESTMENTS LLC, a Delaware limited
liability company
BY: FS PRIVATE INVESTMENTS LLC, Manager
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Managing Member
VOTING AGREEMENT SIGNATURE PAGE
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FS PRIVATE INVESTMENTS LLC, a Delaware limited
liability company
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Managing Member
VOTING AGREEMENT SIGNATURE PAGE
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SCHEDULE A TO VOTING AGREEMENT
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STOCKHOLDER DEPOSITARY SHARES HELD
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FS Private Investments LLC 150,000
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Xxxxxx Xxxx Investors II L.P. 6,343,387
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FS Employee Investors LLC 543,670
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FS Ascent Investments LLC 1,862,585
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FS Parallel Fund L.P. 308,604
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STOCKHOLDER SERIES H PREFERRED STOCK HELD
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FS Ascent Investments LLC* 2,001
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*Notwithstanding the fact that FS Ascent Investments LLC is the record holder of
all of the shares of Series H Preferred Stock, the shares of Series H Preferred
Stock are beneficially owned by the following funds in the stated amounts and
the representations and warranties in the agreement to which this is Schedule A
are accordingly modified: Xxxxxx Xxxx Investors II L.P., 1,762 shares; FS
Employee Investors LLC, 152 shares; FS Parallel Fund L.P., 86 shares; and FS
Ascent Investments LLC, 1 share.
