COOPERATION AGREEMENT
Exhibit 10.1
Execution Version
This Cooperation Agreement (this “Agreement”) is made and entered into as of July 14, 2024 (the “Effective Date”), by and between Milestone Pharmaceuticals Inc. (the “Company”) and Alta Fundamental Advisers LLC (“Alta”). The Company and Alta are each herein referred to as a “party” and collectively, the “parties.” Capitalized terms used herein and not otherwise defined have the meanings ascribed to them in Section 14 below.
WHEREAS, on November 9, 2023, Xxxx filed a Schedule 13D with the SEC disclosing its intent to engage in discussions with the Board of Directors (the “Board”) and management of the Company;
WHEREAS, on April 5, 2024, Alta Fundamental Advisers Master L.P. (“Alta Master”), a private investment fund for which Xxxx serves as investment adviser, submitted a notice (the “14a-19 Notice”), pursuant to Rule 14a-19 of the Exchange Act, of its intention to nominate and solicit proxies for the election of five nominees to be elected to the Board at the Company’s 2024 annual meeting of shareholders (the “2024 Annual Meeting”); and
WHEREAS, the Company and Alta have determined to come to an agreement with respect to the composition of the Board and certain other matters, as provided in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows:
1. Board Composition and Related Matters.
(a) Effective as of the Effective Date, the Company shall take all necessary actions to (i) increase the size of the Board to nine (9) directors and (ii) appoint each of Xxxxxx X. Duty and Xxxxxx X. Xxxx (together, the “Initial New Directors”) to the Board as directors, each with a term expiring at the 2024 Annual Meeting or until their earlier death, disability, resignation, disqualification, or removal. As soon as reasonably practicable after the date hereof (and in any event prior to September 6, 2024), the Company shall take all necessary actions to appoint an individual that is mutually agreeable to the Company and Alta (the “Company Identified New Director”, and together with the Initial New Directors, the “New Directors”) to the Board as a director, with a term expiring at the next annual meeting of shareholders or until his or her earlier death, disability, resignation, disqualification, or removal, it being understood that such Company Identified New Director shall be the individual previously identified by the Company to Alta in writing, unless such individual informs the Company in writing that he or she is not able to join the Board at such time, in which case the Company and Alta shall cooperate in good faith to select, and the Board shall appoint, as promptly as practicable, an alternative independent director mutually agreeable to the Company and Alta; provided, however, that any such alternative director shall not be a principal, officer, manager, employee, Affiliate or Associate of Alta. The Company shall take all necessary actions (1) to nominate the Initial New Directors for election to the Board at the 2024 Annual Meeting and the Company’s 2025 annual meeting of shareholders (the “2025 Annual Meeting”), (2) to include the Initial New Directors in the Company’s proxy statement and proxy card for the 2024 Annual Meeting and the 2025 Annual Meeting, and (3) to solicit proxies for the election of the Initial New Directors in respect of the 2024 Annual Meeting and the 2025 Annual Meeting in the same manner as it solicits proxies for the election of the Company’s other director nominees, and support and recommend for the election of the Initial New Directors in respect of the 2024 Annual Meeting and the 2025 Annual Meeting in the same manner as it supports and recommends for the election of the Company’s other director nominees.
(b) If any of the Initial New Directors is unable or unwilling to serve as a director, resigns as a director, is removed as a director, or ceases to be a director for any other reason prior to the Termination Date, and at such time Alta holds a Net Long Position (as defined below) at or above 4.0% of the Common Shares (as defined below) then-outstanding, the Company and Alta shall cooperate in good faith to select, and the Board shall appoint, as promptly as practicable, a director mutually agreeable to the Company and Alta (any such replacement director, once appointed to the Board, a “Replacement Director”) who qualifies as “independent” pursuant to Nasdaq’s listing standards, and who satisfies the Company Policies applicable to all directors, to serve as a director of the Company for the remainder of the applicable Initial New Director’s term; provided, however, that any Replacement Director shall not be a principal, officer, manager, employee, Affiliate or Associate of Alta. Upon appointment to the Board, a Replacement Director shall be considered an Initial New Director for purposes of this Agreement.
(c) Xxxxx X. Xxxxxxx and Xx. Xxxxxxx X. Xxxxxxxxx have informed the Company of their decision not to stand for reelection to the Board at the 2024 Annual Meeting. Following the 2024 Annual Meeting and the appointment of the Company Identified New Director to the Board, the Board shall take all necessary actions to decrease the size of the Board to eight (8) directors.
(d) Xxxx confirms that, effective as of the Effective Date, Alta Master has irrevocably withdrawn the 14a-19 Notice.
(e) The Company agrees to use its reasonable best efforts to hold the 2024 Annual Meeting no later than September 6, 2024, and to hold the 2025 Annual Meeting no later than June 30, 2025; provided, however, that the foregoing shall not apply with respect to the 2025 Annual Meeting if such meeting is contested (with the number of nominees to be voted on at the meeting exceeding the number of directors to be elected) or the Company has entered into a definitive agreement with respect to an Extraordinary Transaction that is subject to a vote of the Company’s shareholders.
(f) Upon the Initial New Directors’ appointment to the Board, the Board shall take all necessary actions to appoint Mr. Duty to the Nominating and Corporate Governance Committee of the Board and Xx. Xxxx to the Audit Committee of the Board. Any additional committee appointments for the Initial New Directors shall be determined by the Board in good faith, in accordance with the Board’s customary governance processes, and the Board shall give each of the Initial New Directors the same due consideration for committee membership as any other independent director with similar expertise and qualifications.
(g) Alta acknowledges that the Initial New Directors are required to comply with the Company’s organizational documents, committee charters, corporate governance, ethics, conflict of interest, confidentiality, stock ownership and trading policies and guidelines and other governance documents, policies and procedures and applicable law, in each case as generally applicable to the Company’s directors (the “Company Policies”). Alta acknowledges that the Initial New Directors are required to preserve the confidentiality of Company business and information, including discussions or matters considered in meetings of the Board or Board committees. Alta shall not, and shall cause its Affiliates and Associates not to, intentionally seek confidential Company information from any Initial New Director.
(h) Xxxx agrees that there shall be no contracts, plans or arrangements, written or otherwise, in effect prior to the Termination Date, between Alta and any Initial New Director providing for any compensation, reimbursement of expenses or indemnification of any Initial New Director in connection with or related to such Initial New Director’s service on the Board.
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(i) The Company shall provide the New Directors with (i) the same benefits of director and officer insurance as all other non-management directors of the Board, (ii) the same compensation for their service as a director as the compensation received by other non-management directors on the Board, and (iii) such other benefits on the same basis as all other non-management directors on the Board.
2. Voting Commitment. Until the Termination Date, Alta shall, or shall cause a Representative to, (a) appear in person or by proxy at each Shareholder Meeting and (b) vote, or deliver consents or consent revocations with respect to, all Common Shares that Alta or its Affiliates has the right to vote (or direct the vote) as of the record date established for such Shareholder Meeting in accordance with the Board’s recommendations with respect to all proposals submitted to shareholders at such Shareholder Meeting, in each case as the Board’s recommendation is set forth in the definitive proxy statement, consent solicitation statement, or revocation solicitation statement filed by the Company in respect of such Shareholder Meeting. Notwithstanding the foregoing, (i) in the event that Institutional Shareholder Services Inc. (“ISS”) or Glass Lewis & Co., LLC (“Glass Lewis”) issues a voting recommendation that differs from the Board’s recommendation with respect to any proposals (other than a proposal with respect to director elections or removal), Alta shall be permitted to vote, or deliver consents or consent revocations, in accordance with such ISS or Glass Lewis recommendation for such proposal (and not any other proposal), and (ii) Alta shall be permitted to vote in its sole discretion on any proposal(s) with respect to any Extraordinary Transaction that is subject to a vote of the Company’s shareholders. Alta and its Affiliates shall use reasonable best efforts (including by calling back loaned out shares) to ensure that they have voting power for each share beneficially owned by it or its Affiliates on the record date for each Shareholder Meeting.
3. Standstill. Prior to the Termination Date, except as otherwise provided in this Agreement, without the prior written consent of the Company or the Board, Alta shall not, and shall cause its Affiliates not to, directly or indirectly:
(a) acquire, offer or seek to acquire, agree to acquire, or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis or pursuant to an Extraordinary Transaction approved by the Board), whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any voting securities of the Company (other than through any index fund, exchange traded fund, benchmark fund or broad-based basket of securities) or any voting rights decoupled from the underlying voting securities that would result in Alta and its Affiliates owning, controlling or otherwise having any beneficial or other ownership interest of, in the aggregate, more than nine and nine tenths (9.9%) of the Common Shares outstanding at such time (the “Maximum Ownership Cap”);
(b) sell, assign, or otherwise transfer or dispose of Common Shares, or any rights decoupled from such shares, beneficially owned by them, other than in open market sale transactions where the identity of the purchaser is not known and in underwritten widely-dispersed public offerings, to any Third Party that, to Xxxx’s knowledge (after reasonable due inquiry in connection with a private, non-open market transaction), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest of, in the aggregate, more than four and nine tenths percent (4.9%) of the Common Shares outstanding at such time or would increase the beneficial ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest of, in the aggregate, more than four and nine tenths percent (4.9%) of the Common Shares outstanding at such time; provided that the restrictions in this clause (b) shall not apply to any Third Party that is a Schedule 13G filer or eligible to be a Schedule 13G filer and that has not been identified on the most recent “SharkWatch 50” list, as published by FactSet and any successor (or, if “SharkWatch 50” is no longer available, the then-prevailing comparable list, as reasonably determined by the Company in good faith) (the “SharkWatch List”) and are not publicly disclosed Affiliate funds of such a filer on the SharkWatch List with respect to the Common Shares;
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(c) (i) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Shareholder Meeting at which the Company’s directors are to be elected; (ii) initiate, knowingly encourage or participate in any solicitation of proxies, consents or consent revocations in respect of any election contest or removal contest with respect to the Company’s directors; (iii) submit, initiate, make or be a proponent of any shareholder proposal for consideration at, or bring any other business before, any Shareholder Meeting; (iv) initiate, knowingly encourage or participate in any solicitation of proxies, consents or consent revocations in respect of any shareholder proposal for consideration at, or other business brought before, any Shareholder Meeting; (v) initiate, knowingly encourage or participate in any “withhold” or similar campaign with respect to any proposal for consideration at, or other business brought before, any Shareholder Meeting; or (vi) call or seek to call, or request the call of, or initiate a consent solicitation or consent revocation solicitation with respect to, alone or in concert with others, any Shareholder Meeting, whether or not such a Shareholder Meeting is permitted by the Charter or the Bylaws, including any “town hall” meeting;
(d) form, join or in any way participate in or with any group or agreement of any kind with respect to any voting securities of the Company, other than any such group or agreement that is with an Affiliate of Alta and such Affiliate agrees to be bound by the terms and conditions of this Agreement as if it were a party hereto and such group or agreement would not result in Alta and its Affiliates exceeding the Maximum Ownership Cap;
(e) deposit any voting securities of the Company in any voting trust or subject any Company voting securities to any arrangement or agreement with respect to the voting thereof, other than any such voting trust, arrangement, or agreement that is with an Affiliate of Alta and such Affiliate agrees to be bound by the terms and conditions of this Agreement as if it were a party hereto and such voting trust, arrangement, or agreement would not result in Alta and its Affiliates exceeding the Maximum Ownership Cap;
(f) seek publicly, alone or in concert with others, to amend any provision of the Charter, the Bylaws, the committee charters, the corporate governance principles, or any similar governance documents applicable to directors;
(g) demand an inspection of the Company’s books and records;
(h) (i) make any public proposal with respect to or (ii) make any public statement or otherwise seek to encourage or advise, or knowingly assist any person in so encouraging or advising with respect to: (A) any change in the composition, number or term of directors serving on the Board or the filling of any vacancies on the Board, (B) any change in the capitalization, dividend policy, or share repurchase programs or practices of the Company, (C) any other change in the Company’s management, governance, business, operations, strategy, corporate structure or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(i) initiate, make, or in any way participate, in any Extraordinary Transaction or make any proposal, either alone or in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement or disclosure regarding any such matter;
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(j) offer, effect, seek to effect or propose to effect, cause or participate in, or in any way knowingly assist any other person to effect, or offer or propose to effect, any (i) material acquisition of any assets or businesses of the Company or any of its subsidiaries; (ii) tender offer or exchange offer, merger, acquisition, share exchange or other business combination or Extraordinary Transaction involving any of the Company’s voting securities or any of the material assets or businesses of the Company or any of its subsidiaries; or (iii) recapitalization, restructuring, liquidation, dissolution or other material transaction with respect to the Company or any of its subsidiaries or any material portion of its or their businesses;
(k) enter into any negotiations, agreements, or understandings with any Third Party, or advise, knowingly assist or seek to persuade any Third Party, to take any action that Alta would be prohibited from taking pursuant to this Section 3;
(l) publicly make or in any way advance publicly any request or proposal that the Company or the Board amend, modify, or waive any provision of this Agreement;
(m) publicly disclose any vote, delivery of consents or consent revocations, or failure to deliver consents or consent revocations, as applicable, by Alta against the voting recommendations of the Board in connection with a Shareholder Meeting; provided that the restrictions contained in this clause (m) shall not apply to any matter for which Alta has voting discretion pursuant to and in accordance with Section 2 of this Agreement or disclosure required by applicable law, rules or regulations; or
(n) take any action challenging the validity or enforceability of this Section 3 or this Agreement unless the Company is challenging the validity or enforceability of this Agreement;
provided, however, that the restrictions in this Section 3 shall not prevent Alta from (i) making any factual statement to the extent required by applicable legal process, subpoena or legal requirement from any governmental authority with competent jurisdiction over Alta so long as such request did not arise as a result of any action by Alta; (ii) communicating privately with the Chief Executive Officer, the Chair of the Board or any other director of the Company pursuant to and in accordance with the Company Policies (or any other individuals identified by the Company to Alta) so long as such communications would not reasonably be expected to trigger public disclosure obligations for either party; (iii) tendering shares, receiving payment for shares or otherwise participating in any transaction (including any Extraordinary Transaction) approved by the Board on the same basis as the other shareholders of the Company; or (iv) making or sending private communications to investors in Alta, provided that such statements or communications (1) are solely based on publicly available information; (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; and (3) do not intentionally or knowingly violate any of the restrictions in Section 3 and Section 4 hereof.
4. Mutual Non-Disparagement. Until the Termination Date, without the prior written consent of the other party, neither party shall, nor shall it permit any of its Representatives to, make any public or private statement, file or furnish any document to the SEC, or speak to any analyst, investor or member of the press in a manner that criticizes, disparages, defames, slanders or impugns the other party, its subsidiaries, its business, or its current or former directors (in their capacity as such), officers, or employees. A statement or announcement shall only be deemed to be made by the Company if made by a member of the Board or senior management team or other designated representative of the Company, in each case authorized to make such statement or announcement on behalf of the Company. A statement or announcement shall only be deemed to be made by Alta if made by a manager, director, general partner, member of the senior management team or, in the case of a Representative of Alta, if authorized to make such statement or announcement on behalf of Alta. The restrictions in this Section 4 shall not (a) apply to (i) any compelled testimony or production of information, whether by legal process, subpoena, or as part of a response to a request for information from any governmental or regulatory authority with jurisdiction over the party from whom information is sought, in each case to the extent required, (ii) any disclosure that such party reasonably believes, after consultation with outside counsel, to be legally required by applicable law, rules or regulations, or (iii) any private communications between or among the parties and their respective Representatives; (b) prohibit either party from reporting what it reasonably believes, after consultation with outside counsel, to be violations of federal law or regulation to any governmental authority pursuant to Section 21F of the Exchange Act or Rule 21F promulgated thereunder; or (c) prohibit any private communications among the principals, officers, managers, and employees of Alta.
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5. No Litigation. Prior to the Termination Date, each party hereby covenants and agrees that it shall not, and shall not permit any of its Representatives to, directly or indirectly, alone or in concert with others, pursue or knowingly encourage or assist any other person to threaten or initiate, any lawsuit, claim, or proceeding before any court (each, a “Legal Proceeding”) against the other party or any of its Representatives based on information known or unknown as of the Effective Date, except for (a) any Legal Proceeding initiated primarily to remedy a breach of or to enforce this Agreement, (b) counterclaims with respect to any proceeding initiated by or on behalf of one party or its Affiliates against the other party or its Affiliates or (c) any Legal Proceeding with respect to claims of fraud in connection with, arising out of or related to this Agreement; provided, however, that the foregoing shall not prevent any party or any of its Representatives from responding to oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or similar processes (each, a “Legal Requirement”) in connection with any Legal Proceeding if such Legal Proceeding has not been initiated by, on behalf of, or at the suggestion of such party or any of its Representatives; provided, further, that in the event any party or any of its Representatives receives such Legal Requirement, such party shall give prompt written notice of such Legal Requirement to the other party (except where such notice would be legally prohibited or not practicable). Each party represents and warrants that neither it nor any assignee has filed any Legal Proceeding against the other party.
6. Public Statements; SEC Filings.
(a) Within one (1) Business Day immediately following the Effective Date, the Company shall issue a mutually agreeable press release (the “Press Release”) announcing this Agreement substantially in the form attached hereto as Exhibit A.
(b) Within one (1) Business Day following the Effective Date, the Company shall file with the SEC a Current Report on Form 8-K setting forth a brief description of the terms of this Agreement and appending this Agreement as an exhibit thereto (the “Form 8-K”). The Company shall provide Alta and its Representatives with a reasonable opportunity to review and comment on the Form 8-K prior to it being filed with the SEC and consider in good faith any comments of Alta and its Representatives.
(c) Within two (2) Business Days following the Effective Date, Alta shall file with the SEC an amendment to its Schedule 13D setting forth a brief description of the terms of this Agreement and appending this Agreement as an exhibit thereto (the “Schedule 13D Amendment”). The Schedule 13D Amendment shall be consistent with the terms of this Agreement and the Press Release. Alta shall provide the Company and its Representatives with a reasonable opportunity to review and comment on the Schedule 13D Amendment prior to it being filed with the SEC and consider in good faith any comments of the Company and its Representatives.
(d) Prior to the Termination Date, neither party shall issue any press release or other public statement (including in any filing required under the Exchange Act) about the subject matter of this Agreement that is inconsistent with the Press Release, Form 8-K and Schedule 13D Amendment, except as required by law, Legal Requirement or applicable stock exchange listing rules or with the prior written consent of the other party and otherwise in accordance with this Agreement.
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7. Affiliates and Associates. Each party shall instruct its controlled Affiliates and Associates to comply with the terms of this Agreement applicable to such persons, and shall be responsible for any breach of this Agreement by any such controlled Affiliate or Associate. A breach of this Agreement by a controlled Affiliate or Associate of a party, if such controlled Affiliate or Associate is not a party to this Agreement, shall be deemed to occur if such controlled Affiliate or Associate engages in conduct that would constitute a breach of this Agreement if such controlled Affiliate or Associate was a party to this Agreement.
8. Representations and Warranties.
(a) Alta represents and warrants that it has full power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby, and that this Agreement has been duly and validly executed and delivered by it, constitutes a valid and binding obligation and agreement of it and is enforceable against it in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity principles. Alta represents that (i) the execution of this Agreement, the consummation of any of the transactions contemplated hereby, and the fulfillment of the terms hereof, in each case in accordance with the terms hereof, will not conflict with, or result in a breach or violation of the organizational documents of it as currently in effect and (ii) the execution, delivery and performance of this Agreement by it does not and will not (A) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to it or (B) result in any breach or violation of or constitute a default under or pursuant to (or an event which with notice or lapse of time or both could constitute such a breach, violation or default), or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract, commitment, understanding or arrangement to which it is a party or by which it is bound. Alta represents and warrants that, as of the Effective Date, (i) Alta and its Affiliates beneficially own an aggregate of 2,658,589 Common Shares and have voting authority over such shares and (ii) other than the Common Shares described in the foregoing clause (i), Alta and its Affiliates do not directly or indirectly have any voting rights in, or economic exposure to (including by swaps or other derivative arrangements), any Common Shares.
(b) The Company hereby represents and warrants that it has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby, and that this Agreement has been duly and validly authorized, executed and delivered by the Company, constitutes a valid and binding obligation and agreement of the Company and is enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity principles. The Company represents and warrants that (i) the execution of this Agreement, the consummation of any of the transactions contemplated hereby, and the fulfillment of the terms hereof, in each case in accordance with the terms hereof, will not conflict with, or result in a breach or violation of the organizational documents of the Company as currently in effect and (ii) the execution, delivery and performance of this Agreement by the Company does not and will not (A) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to the Company or (B) result in any breach or violation of or constitute a default under or pursuant to (or an event which with notice or lapse of time or both could constitute such a breach, violation or default), or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract, commitment, understanding or arrangement to which the Company is a party or by which it is bound.
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9. Termination.
(a) Unless otherwise mutually agreed to in writing by each party, this Agreement shall remain in effect until the conclusion of the 2025 Annual Meeting (the “Termination Date”). Notwithstanding anything to the contrary in this Agreement:
(i) the obligations of Alta to the Company (A) pursuant to Sections 1, 2, 3, 4, and 6(d) shall terminate in the event that the Company materially breaches its obligations to Alta pursuant to Sections 1, 4, or 6(d), or the representations and warranties in Section 8(b) of this Agreement and such breach (if capable of being cured) has not been cured within ten (10) days following written notice of such breach from Alta to the Company, and (B) pursuant to Section 5 shall terminate immediately in the event that the Company materially breaches its obligations to Alta under Section 5; and
(ii) the obligations of the Company to Alta (A) pursuant to Sections 1, 4, and 6(d) shall terminate in the event that Alta materially breaches its obligations in Sections 1, 2, 3, 4, and 6(d), or the representations and warranties in Section 8(a) of this Agreement, and such breach (if capable of being cured) has not been cured within ten (10) days following written notice of such breach from the Company to Alta, and (B) pursuant to Section 5 shall terminate immediately in the event that Alta materially breaches its obligations to the Company under Section 5.
(b) If this Agreement is terminated in accordance with this Section 9, this Agreement shall forthwith become null and void, but no termination shall relieve either party from liability for any breach of this Agreement prior to such termination. Notwithstanding the foregoing, Sections 11, 12, 13 and 15 shall survive the termination of this Agreement.
10. Expenses. Each party shall be responsible for its own fees and expenses incurred, except that the Company shall reimburse Alta and its Affiliates for documented out-of-pocket costs, fees and expenses (including attorneys’ fees and other legal expenses) incurred by Alta and its Affiliates in connection with their engagement with the Company, the negotiation and execution of this Agreement and related matters; provided, however, that such reimbursement shall not exceed $130,000 in the aggregate.
11. Notices. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand, with written confirmation of receipt; (b) upon sending, if sent by electronic mail to the electronic mail addresses below, with confirmation of receipt from the receiving party by electronic mail; (c) one (1) Business Day after being sent by a nationally recognized overnight carrier to the addresses set forth below; or (d) when actually delivered if sent by any other method that results in delivery, with written confirmation of receipt:
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If to the Company:
Milestone Pharmaceuticals Inc. 0000 Xx. Xxxxxxxx-Xxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxxxxxxx, XX X0X 0X0 Xxxxxx Attn: Xxxxxx Xxxxxxx Email: xxxxxxxx@xxxxxxxxxxxxxxx.xxx |
with mandatory copies (which shall not constitute notice) to:
Xxxxxx Xxxxxx LLP 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Attn: Xxx X. Liekefett / Xxxxxx Xxxxxxxx Email: xxxxxxxxxx@xxxxxx.xxx / xxxxxxxxx@xxxxxx.xxx |
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Xxxxxx LLP 00 Xxxxxx Xxxxx Xxx Xxxx, XX 00000 Attn: Xxxx Xxxxxx / Xxxx Xxxxxx Email: xxxxxxx@xxxxxx.xxx / xxxxxxx@xxxxxx.xxx | |
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If to Alta:
Alta Fundamental Advisers Master L.P. c/o Alta Fundamental Advisers LLC 0000 Xxxxxxxx, Xxxxx 000 Xxx Xxxx, XX 00000 Attn: Xxxxxxx Xx Email: xxx@xxxxxxxxxxxxxxx.xxx |
with mandatory copies (which shall not constitute notice) to:
Xxxxxx Frome Xxxxxxx LLP 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 Attn: Xxxxxxx X. Xxxxxx / Xxxxxxx X. Xxx Xxxxxxxx Email:
xxxxxxx@xxxxxxxxx.xxx/ |
12. Governing Law; Jurisdiction; Jury Waiver. This Agreement, and any disputes arising out of or related to this Agreement (whether for breach of contract, tortious conduct or otherwise), shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to its conflict of laws principles. The parties agree that exclusive jurisdiction and venue for any Legal Proceeding arising out of or related to this Agreement shall exclusively lie in the Court of Chancery of the State of Delaware or, if such Court does not have subject matter jurisdiction, the Superior Court of the State of Delaware or, if jurisdiction is vested exclusively in the Federal courts of the United States, the Federal courts of the United States sitting in the State of Delaware, and any appellate court from any such state or Federal court. Each party waives any objection it may now or hereafter have to the laying of venue of any such Legal Proceeding, and irrevocably submits to personal jurisdiction in any such court in any such Legal Proceeding and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any court that any such Legal Proceeding brought in any such court has been brought in any inconvenient forum. Each party consents to accept service of process in any such Legal Proceeding by service of a copy thereof upon either its registered agent in the State of Delaware or the Secretary of State of the State of Delaware, with a copy delivered to it by certified or registered mail, postage prepaid, return receipt requested, addressed to it at the address set forth in Section 11. Nothing contained herein shall be deemed to affect the right of any party to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
13. Specific Performance. Each party to this Agreement acknowledges and agrees that the other party would be irreparably injured by an actual breach of this Agreement by the first-mentioned party or its Representatives and that monetary remedies would be inadequate to protect either party against any actual or threatened breach or continuation of any breach of this Agreement. Without prejudice to any other rights and remedies otherwise available to the parties under this Agreement, each party shall be entitled to equitable relief by way of injunction or otherwise and specific performance of the provisions hereof upon satisfying the requirements to obtain such relief, without the necessity of posting a bond or other security, if the other party or any of its Representatives breaches or threatens to breach any provision of this Agreement. Such remedy shall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or equity to the non-breaching party.
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14. Certain Definitions and Interpretations. As used in this Agreement: (a) the terms “Affiliate” and “Associate” (and any plurals thereof) have the meanings ascribed to such terms under Rule 12b-2 promulgated by the SEC under the Exchange Act and shall include all persons or entities that become Affiliates or Associates of any applicable person or entity referred to in this Agreement after the Effective Date; provided, however, that the term “Associate” shall refer only to Associates controlled by the Company or Alta, as applicable; provided, further, that, for purposes of this Agreement, Alta shall not be an Affiliate or Associate of the Company, and the Company shall not be an Affiliate or Associate of Alta; (b) the terms “beneficial ownership,” “group,” “person,” “proxy” and “solicitation” (and any plurals thereof) have the meanings ascribed to such terms under the Exchange Act and the rules and regulations promulgated thereunder; provided, however, that the meaning of “solicitation” shall be without regard to the exclusions set forth in Rules 14a-1(l)(2)(iv) and 14a-2(b)(2) under the Exchange Act; (c) the term “Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in the State of Delaware are authorized or obligated to be closed by applicable law; (d) the term “Common Shares” means the common shares of the Company, no par value per share; (e) the term “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder; (f) the term “Extraordinary Transaction” means any tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale, recapitalization, restructuring, or other similar transaction involving the Company and a third party, in each case, that results in a change in control of the Company or the sale of all or substantially all of its assets; (g) “Net Long Position” means that such person beneficially owns Common Shares, directly or indirectly, that constitute a net long position as defined in Rule 14e-4 under the Exchange Act mutatis mutandis; provided, however, that “Net Long Position” shall not include any shares as to which such person does not have the right to vote or direct the vote other than as a result of being in a margin account, or as to which such person has entered into a derivative or other agreement, arrangement or understanding that xxxxxx or transfers, in whole or in part, directly or indirectly, any of the economic consequences of ownership of such shares; and the terms “person” or “persons,” for purposes of the meaning of the term “Net Long Position,” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, associate, organization or other entity of any kind or nature; (h) the term “Representatives” means (i) a person’s Affiliates and Associates and (ii) its and their respective directors, officers, employees, partners, members, managers, consultants, legal or other advisors, agents and other representatives, in each case, only to the extent such persons are acting in a capacity on behalf of, in concert with or at the direction of such person or its Affiliates or Associates; (i) the term “SEC” means the U.S. Securities and Exchange Commission; (j) the term “Shareholder Meeting” means each annual or special meeting of shareholders of the Company, or any action by written consent of the Company’s shareholders in lieu thereof, and any adjournment, postponement, rescheduling or continuation thereof; and (k) the term “Third Party” refers to any person that is not a party, a member of the Board, a director or officer of the Company, or legal counsel to either party. In this Agreement, unless a clear contrary intention appears, (i) the word “including” (in its various forms) means “including, without limitation;” (ii) the words “hereunder,” “hereof,” “hereto” and words of similar import are references in this Agreement as a whole and not to any particular provision of this Agreement; (iii) the word “or” is not exclusive; (iv) references to “Sections” in this Agreement are references to Sections of this Agreement unless otherwise indicated; and (v) whenever the context requires, the masculine gender shall include the feminine and neuter genders.
15. Miscellaneous.
(a) This Agreement, including all exhibits hereto, contains the entire agreement between the parties and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.
(b) This Agreement is solely for the benefit of the parties and is not enforceable by any other persons.
(c) This Agreement shall not be assignable by operation of law or otherwise by a party without the consent of the other party. Any purported assignment without such consent is void ab initio. Subject to the foregoing sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by and against the permitted successors and assigns of each party.
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(d) Neither the failure nor any delay by a party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder.
(e) If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. It is hereby stipulated and declared to be the intention of the parties that the parties would have executed the remaining terms, provisions, covenants, and restrictions without including any of such which may be hereafter declared invalid, void, or unenforceable. In addition, the parties agree to use their reasonable best efforts to agree upon and substitute a valid and enforceable term, provision, covenant, or restriction for any of such that is held invalid, void, or unenforceable by a court of competent jurisdiction.
(f) Any amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be agreed to in a writing signed by each party.
(g) This Agreement may be executed in one or more textually identical counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, shall have the same effect as physical delivery of the paper document bearing the original signature.
(h) Each party acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it has executed this Agreement with the advice of such counsel.
(i) The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, or caused the same to be executed by its duly authorized representative, as of the date first above written.
| COMPANY: | ||
| MILESTONE PHARMACEUTICALS INC. | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: | Xxxxxx Xxxxxxx | |
| Title: | President and Chief Executive Officer | |
| ALTA: | ||
| ALTA FUNDAMENTAL ADVISERS LLC | ||
| By: | /s/ Xxxxxxx Xx | |
| Name: | Xxxxxxx Xx | |
| Title: | Managing Member | |
Signature Page to Cooperation Agreement
Exhibit A
Form of Press Release
