Contract
Exhibit 10.2
EXECUTION VERSION
VOTING AGREEMENT, dated as of June 20, 2010 (this
“Agreement”), among Biovail Corporation, a Canadian corporation
(“Biovail”), Valeant Pharmaceuticals International, a Delaware
corporation (“Delaware”) and the party listed on Schedule A hereto
(the “Stockholder”).
WHEREAS, Biovail, Valeant, Biovail Americas Corp., a direct, wholly owned subsidiary of
Biovail (“BAC”), and Beach Merger Corp., a direct, wholly owned subsidiary of BAC
(“Merger Sub”), propose to enter into an Agreement and Plan of Merger dated as of the date
hereof (as the same may be amended or supplemented, 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 Valeant; and
WHEREAS, the Stockholder owns the number of shares of Valeant Common Stock set forth opposite
its name on Schedule A hereto (such shares of Valeant Common Stock, together with any other shares
of capital stock of Valeant acquired by the Stockholder after the date hereof and during the term
of this Agreement, being collectively referred to herein as the “Subject Shares”); and
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Biovail and
Valeant have requested that the Stockholder enter into this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Stockholder. The Stockholder hereby
represents and warrants to Biovail and Valeant as of the date hereof in respect of itself as
follows:
(a) Authority; Execution and Delivery; Enforceability. The Stockholder has
all requisite power and authority to execute this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by the Stockholder of this Agreement and
consummation of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Stockholder. The Stockholder has duly executed and delivered this
Agreement, and this Agreement, assuming this Agreement constitutes a legal, valid and binding
obligation of the other parties hereto, constitutes the legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or similar laws affecting
the rights of creditors generally and the availability of equitable remedies (regardless of whether
such enforceability is considered in a proceeding in equity or at law). The execution and delivery
by the Stockholder of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not, conflict with,
or result in any violation of, or default (with or without notice or lapse of time, or both) under,
or give rise to a right of termination, cancelation or acceleration of any obligation or to loss of
a material benefit under, or to increased, additional, accelerated or guaranteed rights or
entitlements of any person under, or result in the creation of any Lien upon any of the properties
or assets of the Stockholder under, any provision of any Contract to which the Stockholder is a
party or by which any properties or assets of the Stockholder are bound or, subject to the filings
and other matters referred to in the next sentence, any provision of any Judgment or Law applicable
to the Stockholder or the properties or assets of the Stockholder. No Consent of, or registration,
declaration or filing with, any Governmental Entity is required to be obtained or made by or with
respect to the Stockholder in connection with the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated hereby, other than (i) compliance
with and filings under the HSR Act and Part IX of the Competition Act, if applicable to the
Stockholder’s receipt in the Merger of Biovail Common Stock, and (ii) such reports under Sections
13(d) and 16 of the Exchange Act or under Canadian Securities Laws as may be required in connection
with this Agreement and the transactions contemplated hereby.
(b) The Subject Shares. The Stockholder is the record and beneficial owner
of, and has good and marketable title to, the Subject Shares set forth opposite its name on
Schedule A attached hereto, free and clear of any Liens. The Stockholder does not own, of record or
beneficially, any shares of capital stock of Valeant other than the Subject Shares set forth
opposite its name on Schedule A attached hereto. The Stockholder has the sole right to vote such
Subject Shares, and none of such Subject Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of such Subject Shares, except as
contemplated by this Agreement.
SECTION 2. Representations and Warranties of Biovail. Biovail hereby
represents and warrants to the Stockholder and Valeant as follows: Biovail has all requisite
corporate power and authority to execute this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by Biovail of this Agreement and consummation of
the transactions contemplated hereby have been duly authorized by all necessary action on the part
of Biovail. Biovail has duly executed and delivered this Agreement, and this Agreement, assuming
this Agreement constitutes a legal, valid and binding obligation of the other parties hereto,
constitutes the legal, valid and binding obligation of Biovail, enforceable against Biovail in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, moratorium,
reorganization or similar laws affecting the rights of creditors generally and the availability of
equitable remedies (regardless of whether such enforceability is considered in a proceeding in
equity or at law). The execution and delivery by Biovail of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of, or default (with or without notice or lapse of time,
or both) under, or give rise to a right of termination, cancelation
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or acceleration of any obligation or to loss of a material benefit under, or to increased,
additional, accelerated or guaranteed rights or entitlements of any person under, or result in the
creation of any Lien upon any of the properties or assets of Biovail under, any provision of any
Contract to which Biovail is a party or by which any properties or assets of Biovail are bound or,
subject to the filings and other matters referred to in the next sentence, any provision of any
Judgment or Law applicable to Biovail or the properties or assets of Biovail. No Consent of, or
registration, declaration or filing with, any Governmental Entity is required to be obtained or
made by or with respect to Biovail in connection with the execution, delivery and performance of
this Agreement or the consummation of the transactions contemplated hereby, other than such reports
under the Securities Act, the Exchange Act or under Canadian Securities Laws as may be required in
connection with this Agreement and the transactions contemplated hereby.
SECTION 3. Representations and Warranties of Valeant. Valeant hereby represents and
warrants to Biovail and the Stockholder as follows: Valeant has all requisite corporate power and
authority to execute this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery by Valeant of this Agreement and consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the part of Valeant.
Valeant has duly executed and delivered this Agreement, and this Agreement, assuming this Agreement
constitutes a legal, valid and binding obligation of the other parties hereto, constitutes the
legal, valid and binding obligation of Valeant, enforceable against Valeant in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or
similar laws affecting the rights of creditors generally and the availability of equitable remedies
(regardless of whether such enforceability is considered in a proceeding in equity or at law). The
execution and delivery by Valeant of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not, conflict with, or
result in any violation of, or default (with or without notice or lapse of time, or both) under, or
give rise to a right of termination, cancelation or acceleration of any obligation or to loss of a
material benefit under, or to increased, additional, accelerated or guaranteed rights or
entitlements of any person under, or result in the creation of any Lien upon any of the properties
or assets of Valeant under, any provision of any Contract to which Valeant is a party or by which
any properties or assets of Valeant are bound or, subject to the filings and other matters referred
to in the next sentence, any provision of any Judgment or Law applicable to Valeant or the
properties or assets of Valeant. No Consent of, or registration, declaration or filing with, any
Governmental Entity is required to be obtained or made by or with respect to Valeant in connection
with the execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, other than such reports under the Securities Act, the Exchange
Act or under Canadian Securities Laws as may be required in connection with this Agreement and the
transactions contemplated hereby.
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SECTION 4. Covenants of the Stockholder. The Stockholder covenants and agrees as
follows:
(a) At the Valeant Stockholder Meeting or any other meeting of the stockholders of Valeant
called to seek the Valeant Stockholders Approval or in any other circumstances upon which a vote,
consent or other approval (including by written consent) with respect to the Merger Agreement or
the Merger is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares of the
Stockholder in favor of granting the Valeant Stockholder Approval.
(b) At any meeting of stockholders of Valeant or at any adjournment thereof or in any other
circumstances upon which the Stockholder’s vote, consent or other approval is sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares of the Stockholder against (i) any
merger agreement or merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by Valeant, (ii) any Valeant Takeover Proposal and (iii) any amendment of the
Valeant Charter or the Valeant By-laws or other proposal or transaction involving Valeant or any of
its Subsidiaries, which amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify any provision of the Merger Agreement or the Merger or change in any
manner the voting rights of any class of Valeant Capital Stock. The Stockholder shall not commit
or agree to take any action inconsistent with the foregoing.
(c) Other than this Agreement, the Stockholder shall not (i) sell, transfer, pledge, assign
or otherwise dispose of (including by gift) (collectively, “Transfer”), or enter into any
Contract, option, derivative, hedging or other agreement or arrangement (including any profit- or
loss-sharing arrangement) with respect to the Transfer of, any Subject Shares to any person other
than pursuant to the Merger, or (ii) enter into any voting arrangement, whether by proxy, voting
agreement or otherwise, with respect to any Subject Shares and shall not commit or agree to take
any of the foregoing actions.
(d) Subject to Section 8 below, the Stockholder shall not, nor shall it authorize or
permit any Representative of the Stockholder to (i) directly or indirectly solicit, initiate,
knowingly encourage, induce or facilitate any Valeant Takeover Proposal or any inquiry or proposal
that may reasonably be expected to lead to a Valeant Takeover Proposal or (ii) directly or
indirectly participate in any discussions or negotiations with any Person regarding, or furnish to
any Person any information with respect to, or cooperate in any way with any Person (whether or not
a Person making a Valeant Takeover Proposal) with respect to any Valeant Takeover Proposal or any
inquiry or proposal that may reasonably be expected to lead to a Valeant Takeover Proposal.
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(e) The Stockholder shall use all reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Merger.
(f) The Stockholder hereby consents to and approves the actions taken by the Valeant Board in
approving the Merger Agreement. The Stockholder hereby waives, and agrees not to exercise or
assent to, any appraisal rights under Section 262 in connection with the Merger.
SECTION 5. Termination. This Agreement shall terminate upon the
earliest of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with
its terms, (iii) the occurrence of a Valeant Adverse Recommendation Change, or (iv) the End Date,
in each case other than with respect to the liability of any party for breach hereof prior to such
termination; provided that, notwithstanding anything herein to the contrary, the
obligations of the Stockholder pursuant to Section 4(c)(i) of this Agreement shall terminate on
December 30, 2010 if this Agreement does not terminate on an earlier date pursuant to the terms of
this Section 5.
SECTION 6. Additional Matters. The Stockholder shall, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further consents, documents and
other instruments as Biovail or Valeant may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement.
SECTION 7. Publication. The Stockholder hereby permits Biovail and Valeant to
publish and disclose in any proxy statement or prospectus (including any document or schedule filed
with the SEC), or any other regulatory filings in connection with the Merger Agreement, the
Stockholder’s identity and ownership of shares of Valeant Common Stock, the other information set
forth on Schedule A attached hereto, and the nature of its commitments, arrangements and
understandings pursuant to this Agreement. Each of Biovail and Valeant hereby permits the
Stockholder to publish and disclose in any regulatory filing or filings which it is required under
Law to make as a result of this Agreement the identity of Valeant and Biovail and the nature of the
commitments, arrangements and understandings of Valeant or Biovail pursuant to this Agreement.
SECTION 8. Fiduciary Responsibilities. Notwithstanding any provision of this
Agreement to the contrary, nothing in this Agreement shall limit or restrict the rights and
obligations of X. Xxxxx Xxxxxx, Xxxxxxx Xxxx or any other designee of the Stockholder serving on
the Board of Directors of Valeant from taking any action in their capacity as directors of Valeant
(it being understood that this Agreement shall apply to the Stockholder solely in its capacity as a
stockholder of Valeant) or voting in their sole discretion on any matter, whether in connection
with the Merger Agreement or otherwise, and such actions shall not be deemed to constitute a breach
of any provision of this Agreement.
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SECTION 9. General Provisions.
(a) Amendments. This Agreement may not be amended except by an instrument in writing
signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or sent by overnight courier (providing proof of
delivery) to Biovail or Valeant in accordance with Section 9.02 of the Merger Agreement and to the
Stockholder at its address set forth on Schedule A hereto (or at such other address for a party as
shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to Sections,
such reference shall be to a Section to 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”.
(d) Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule or law, or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible
in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
(e) Counterparts. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other parties.
(f) Entire Agreement; No Third-Party Beneficiaries. This Agreement (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 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 law thereof.
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(h) Assignment. 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. Any
purported assignment without such consent shall be void. Subject to the preceding sentences, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
(i) 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 any Federal court located in the State of Delaware or in
any Delaware state court, 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 (i) consents to submit itself to the
personal jurisdiction of any Delaware state court or any Federal court located in the State of
Delaware in the event any dispute arises out of this Agreement or the Merger, (ii) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave
from any such court, (iii) agrees that it will not bring any action relating to this Agreement or
the Merger in any court other than a Delaware state court or any Federal court sitting in the State
of Delaware and (iv) waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or any transaction contemplated hereby.
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IN WITNESS WHEREOF, each party has duly executed this Agreement, all as of the date first
written above.
| BIOVAIL CORPORATION, |
||||
| by | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
| VALEANT PHARMACEUTICALS INTERNATIONAL, |
||||
| by | /s/ J. Xxxxxxx Xxxxxxx | |||
| Name: | J. Xxxxxxx Xxxxxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
| VALUEACT CAPITAL MASTER FUND, L.P., by its general partner, VA Partners I, |
||||
| by | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
SCHEDULE A
Name and Address of Stockholder |
Number of Shares of Valeant Common Stock Owned |
|
ValueAct Capital Master Fund, L.P.
|
15,138,358 shares* | |
000 Xxxxxxx Xxx., 0xx Xxxxx |
||
Xxx Xxxxxxxxx, XX 00000 |
||
TEL: (000) 000-0000 |
||
FAX: (000) 000-0000 |
||
Attn: Xxxxxxx Xxxxxxxxxx |
||
xxxxxxxxxxx@xxxxxxxx.xxx |
| * | X. Xxxxx Morfit also owns 24,687 Virginia Restricted Stock Units. |
