VOTING AGREEMENT
Exhibit 10.3
THIS
VOTING AGREEMENT (this “Agreement”) is made and entered
into as of November 1,
2019, by and between Cerecor, Inc., a Delaware corporation
(“Cerecor”) and
Aytu Bioscience Inc., a Delaware corporation (the
“Company”).
Capitalized terms used but not defined herein are used as they are
defined in the Purchase Agreement (as defined below).
RECITALS:
A. Cerecor
owns beneficially and of record the shares of capital stock set
forth opposite its name on Schedule A hereto (such shares
of capital stock, together with any other shares of capital stock
of the Company acquired by Cerecor after the date hereof and during
the term of this Agreement, being collectively referred to herein
as the “Subject
Securities”).
B. Upon
the date hereof, Cerecor and the Company have consummated that
certain Asset Purchase Agreement, dated as of October 10, 2019 (the
“Purchase
Agreement”) between Cerecor and the
Company.
C. Pursuant
to its agreement under the Purchase Agreement and in order to
facilitate the consummation of the Merger Agreement (as defined
below), Cerecor has entered into this Agreement and agrees to be
bound hereby.
NOW
THEREFORE, in consideration of the promises and the covenants and
agreements set forth below, and for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Agreement to Vote Shares. At
any meeting of stockholders of the Company or at any adjournment
thereof that may take place between now and the date that is twelve
(12) months from the date hereof (the “Agreement Period”), in any action
by written consent or in any other circumstances upon which
Cerecor’s vote, consent or other approval is sought during
such period relating to that certain Agreement and Plan of Merger,
dated as of September 12, 2019, by and among the Company, Innovus
Pharmaceuticals, Inc., a Nevada corporation, and the other parties
thereto (the “Merger
Agreement”), Cerecor shall vote (or cause to be
voted), as applicable, all of the Subject Securities that are then
entitled to be voted (i) in favor of the proposed transactions set
forth in the Merger Agreement and (ii) against any proposal,
amendment, matter or agreement that would in any manner impede,
frustrate, prevent or nullify the Merger Agreement. Cerecor agrees
that the Subject Securities that are entitled to be voted shall be
voted (or caused to be voted) as set forth in the preceding
sentences whether or not Cerecor’s vote, consent or other
approval is sought and at any time or at multiple times during the
term of this Agreement.
2. Opportunity to Review. Cerecor
acknowledges receipt of the Merger Agreement and represents that
he, she, or it has had (i) the opportunity to review, and has read,
reviewed and understands, the terms and conditions of the Merger
Agreement and this Agreement, and (ii) the opportunity to review
and discuss the Merger Agreement and this Agreement with his, her
or its own advisors and legal counsel.
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3. Public Disclosure;
Confidentiality.
(a) Cerecor understands
that it may be the recipient of confidential information of the
Company (“Confidential
Information”) during the term of this Agreement and
that such information may contain or constitute material non-public
information concerning the Company. Cerecor acknowledges that
trading in the securities of any party to this Agreement while in
possession of material nonpublic information or communicating that
information to any other Person who trades in such securities could
subject the applicable party to liability under the U.S. federal
and state securities laws, and the rules and regulations
promulgated thereunder, including Section 10(b) of the Securities
Exchange Act of 1934, as amended, and Rule 10b-5 promulgated
thereunder. Cerecor agrees that it and its Affiliates will not
disclose Confidential Information in its possession, nor will it
trade in the securities of the Company while in possession of
material nonpublic information or at all until Cerecor and its
Affiliates can do so in compliance with all applicable laws and
without breach of this Agreement.
(b) If Cerecor is
required to disclose any Confidential Information by legal process,
Cerecor shall: (a) take reasonable steps to preserve the privileged
nature and confidentiality of the Confidential Information,
including requesting that the Confidential Information not be
disclosed to non-parties or the public; (b) give the Company prompt
prior written notice of such request or requirement so that the
Company may seek an appropriate protective order or other remedy;
and (c) cooperate with the Company (at the Company’s expense)
to obtain such protective order. In the event that such protective
order or other remedy is not obtained, Cerecor (or such other
Persons to whom such request is directed) will furnish only that
portion of the Confidential Information which, on the advice of
Cerecor’s counsel, is legally required to be disclosed and,
upon the Company’s request, use its commercially reasonable
efforts to obtain assurances that confidential treatment will be
accorded to such information.
4. Representations and Warranties of
Cerecor. Cerecor hereby represents and warrants as
follows:
(a) Cerecor (i) is the
record and beneficial owner of the Subject Securities, free and
clear of any liens, adverse claims, charges or other encumbrances
of any nature whatsoever (other than pursuant to (x) restrictions
on transfer under applicable securities laws, or (y) this
Agreement), and (ii) does not beneficially own any securities of
the Company (including options, warrants or convertible securities)
other than the Subject Securities.
(b) Except with respect
to obligations under the Company’s Bylaws, Cerecor has the
sole right to transfer, to vote (or cause to vote) and to direct
(or cause to direct) the voting of the Subject Securities, and none
of the Subject Securities are subject to any voting trust or other
agreement, arrangement or restriction with respect to the transfer
or the voting of the Subject Securities (other than restrictions on
transfer under applicable securities laws), except as set forth in
this Agreement.
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(c) Cerecor, if not a
natural person: (i) is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, and
(ii) has the requisite corporate, company, partnership or other
power and authority to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to comply with
the terms hereof. The execution and delivery by Cerecor of this
Agreement, the consummation by Cerecor of the transactions
contemplated hereby and the compliance by Cerecor with the
provisions hereof have been duly authorized by all necessary
corporate, company, partnership or other action on the part of
Cerecor, and no other corporate, company, partnership or other
proceedings on the part of Cerecor are necessary to authorize this
Agreement, to consummate the transactions contemplated hereby or to
comply with the provisions hereof.
(d) This Agreement has
been duly executed and delivered by Cerecor, constitutes a valid
and binding obligation of Cerecor and, assuming due authorization,
execution and delivery by the other parties thereto, is enforceable
against Cerecor in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar
laws affecting or relating to creditors’ rights generally,
and (ii) the availability of injunctive relief and other equitable
remedies.
(e) The execution and
delivery of this Agreement, the consummation of the transactions
contemplated hereby and compliance with the provisions hereof do
not and will not conflict with, or result in (i) any violation or
breach of, or default (with or without notice or lapse of time, or
both) under, any provision of the organizational documents of
Cerecor, if applicable, (ii) any material violation or breach of,
or default (with or without notice or lapse of time, or both) under
any (A) statute, Law, ordinance, rule or regulation or (B)
judgment, order or decree, in each case, applicable to Cerecor or
its properties or assets, or (iii) any material violation or breach
of, or default (with or without notice or lapse of time, or both)
under any material contract, trust, commitment, agreement,
understanding, arrangement or restriction of any kind to which
Cerecor is a party or by which Cerecor or Cerecor’s assets
are bound.
5. Termination. This Agreement
shall terminate automatically upon the approval of the Merger
Agreement by the Company’s stockholders; provided, however, that this Agreement
will also terminate if the Company has elected to terminate the
Merger Agreement in accordance with its terms prior to approval of
the Merger Agreement by the Company’s stockholders. In the
event of the termination of this Agreement, this Agreement shall
forthwith become null and void, there shall be no liability on the
part of any of the parties, and all rights and obligations of each
party hereto shall cease; provided, however, that no such
termination of this Agreement shall relieve any party hereto from
any liability for any breach of any provision of this Agreement
prior to such termination.
6. Further Covenants and
Assurances. During the term of this Agreement, Cerecor
hereby, to the extent permitted by Laws, waives and agrees not to
exercise any dissenters’ or appraisal rights, or other
similar rights, with respect to any Subject Securities which may
arise in connection with the transactions contemplated by the
Merger Agreement.
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7. Successors, Assigns and Transferees
Bound. Without limiting Section 1 hereof in any way, Cerecor
agrees that this Agreement and the obligations hereunder shall
attach to the Subject Securities from the date hereof through the
termination of this Agreement and shall, to the extent permitted by
applicable Laws, be binding upon any Person to which legal or
beneficial ownership of the Subject Securities shall pass, whether
by operation of law or otherwise, including Cerecor’s heirs,
guardians, administrators or successors, and Cerecor further agrees
to take all reasonable actions necessary to effectuate the
foregoing.
8. Deposit. Cerecor shall cause a
counterpart of this Agreement to be deposited, in electronic or
physical form, with the Company at its principal place of business
or registered office where it shall be subject to the same right of
examination by any stockholder, in person or by agent or attorney,
as are the books and records of the Company.
9. Remedies. Cerecor acknowledges
that money damages would be both incalculable and an insufficient
remedy for any breach of this Agreement by it, and that any such
breach would cause the Company and Cerecor irreparable harm.
Accordingly, Cerecor agrees that in the event of any breach or
threatened breach of this Agreement, the Company and Cerecor, in
addition to any other remedies at law or in equity each may have,
shall be entitled to seek immediate equitable relief, including
injunctive relief and specific performance, without the necessity
of proving the inadequacy of money damages as a remedy and without
the necessity of posting any bond or other security, to prevent
breaches of this Agreement and to enforce specifically the terms
and provisions hereof in any court of the United States or any
state having jurisdiction.
10. Notices. All notices and other
communications hereunder shall be in writing and shall be deemed to
have been duly given when personally delivered, or if sent by
United States certified mail, return receipt requested, postage
prepaid, shall be deemed duly given on delivery by United States
Postal Service, or if sent by e-mail or receipted overnight courier
services shall be deemed duly given on the Business Day received if
received prior to 5:00 p.m. local time or on the following Business
Day if received after 5:00 p.m. local time or on a non-Business
Day, addressed to the respective parties as follows:
(i)
if to the Company,
to:
000
Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxxx
with a
required copy (which shall not constitute notice) to:
Xxxxxx & Whitney LLP
000
X. Xxxx Xxxxxx, Xxxxx 0000
Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
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(ii)
if to Cerecor,
to:
Cerecor,
Inc.
000
Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxx
with a
required copy (which shall not constitute notice) to:
Xxxxxx
Xxxxxxx Xxxxx & Xxxxxx LLP
0000
Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX
00000
Attention: Xxx
Xxxxxxxx
(iii)
if to Cerecor, to
the address set forth on Schedule A hereto.
11. Severability. Any provision
hereof that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the
extent permitted by Law, each party hereby waives any provision of
Law that renders any such provision prohibited or unenforceable in
any respect.
12. Entire Agreement/Amendment.
This Agreement (including the provisions of the Purchase Agreement
referenced herein) represent the entire agreement of the parties
with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof. This Agreement
may not be amended, modified, altered or supplemented except by
means of a written instrument executed and delivered by the parties
hereto.
13. Governing Law. This Agreement,
and all claims or causes of action (whether in contract, tort or
otherwise) that may be based upon, arise out of or relate to this
Agreement or the negotiation, execution or performance of this
Agreement, shall be governed by and construed in accordance with
the internal Laws of the State of Delaware without reference to its
choice of law rules. Each party agrees that any legal action or
other legal proceeding relating to this Agreement or the
enforcement of any provision of this Agreement shall be brought or
otherwise commenced exclusively in the Court of Chancery of the
State of Delaware or any federal court of competent jurisdiction in
the State of Delaware. Each of the parties consents to service of
process in any such proceeding in any manner permitted by the Laws
of the State of Delaware, and agrees that service of process by
registered or certified mail, return receipt requested, at its
address specified pursuant to Section 11 of this Agreement is reasonably calculated
to give actual notice. Each party waives and agrees not to assert
(by way of motion, as a defense or otherwise), in any such legal
proceeding commenced in such courts, any claim that such party is
not subject personally to the jurisdiction of such courts, that
such legal proceeding has been brought in an inconvenient forum,
that the venue of such proceeding is improper or that this
Agreement or the subject matter hereof or thereof may not be
enforced in or by such courts. EACH PARTY HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY
IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
HEREOF.
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14. Counterparts. This Agreement
may be executed by delivery of electronic signatures and in two or
more counterparts, each of which shall be deemed an original, and
it shall not be necessary in making proof of this Agreement or the
terms hereof to produce or account for more than one of such
counterparts.
[SIGNATURE
PAGES FOLLOW]
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In Witness Whereof, the parties
have caused this Agreement to be executed as of the date first
above written.
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Cerecor
By: /s/ Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Chief Financial Officer
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In Witness Whereof, the parties
have caused this Agreement to be executed as of the date first
above written.
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AYTU
BIOSCIENCE INC.
By: /s/ Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Chief Executive Officer
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[Signature Page to
Voting Agreement]
