VOTING AGREEMENT
VOTING AGREEMENT, dated as of December 14, 1997 (this "Agreement"), among
ELAN CORPORATION, PLC, a public limited company organized under the laws of
Ireland ("Purchaser") and the individuals whose names and addresses are set
forth on the signature pages hereto (collectively, the "Stockholders", and each,
individually, a "Stockholder").
WHEREAS, Purchaser and its wholly owned subsidiary, Everglade Acquisition
Corp., a Delaware corporation (the "Subsidiary"), have entered into an Agreement
and Plan of Merger, dated as of the date hereof (the "Merger Agreement"), with
Sano Corporation, a Florida corporation (the "Company"), which Merger Agreement
provides, among other things, that the Subsidiary will merge with and into the
Company pursuant to the merger contemplated by the Merger Agreement (the
"Merger"); and
WHEREAS, as of the date hereof, the Stockholders own (both beneficially and
of record) the number of shares of Common Stock, par value $.01 per share, of
the Company ("Company Common Stock") set forth opposite their respective names
at the foot of this Agreement; and
WHEREAS, the Stockholders have agreed to enter into this Agreement
governing the voting and disposition of the shares of Company Common Stock now
owned and which may hereafter be acquired by any of the Stockholders (the
"Shares").
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. Voting of Shares. Each Stockholder shall, until the Termination Date (as
hereinafter defined), cause the Shares owned by such Stockholder to be voted at
any meeting of the Stockholders of the Company or in any consent in lieu of such
a meeting in favor of the Merger Agreement and the transactions contemplated
thereby, subject to his obligation to faithfully discharge his duty as a
director of the Company, provided that the Merger Agreement shall not have been
amended to adversely affect the Stockholders in any material respect, without
the consent of the Stockholders. For the purposes of this Agreement,
"Termination Date" shall mean the earliest of (i) the termination of the Merger
Agreement in accordance with its terms, (ii) the Effective Time (as defined in
the Merger Agreement), (iii) the termination of this Agreement by the mutual
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written agreement of the parties hereto or pursuant to the terms of Section 8 of
this Agreement.
2. Irrevocable Proxy. Each Stockholder hereby irrevocably appoints
Purchaser, subject to his obligation to faithfully discharge his duty as a
director of the Company, until the Termination Date, as its attorney and proxy
pursuant to the provisions of Section 607.0722 of the Florida Business
Corporation Act with full power of substitution, to vote in such manner as
Purchaser or its substitute shall, in its sole discretion, deem proper and
otherwise act (by written consent or otherwise) with respect to the Shares (and
all other securities issued to the Stockholder in respect of the Shares) which
each Stockholder is entitled to vote at any meeting of Stockholders of the
Company (whether annual or special and whether or to an adjourned or postponed
meeting) or in respect of any consent in lieu of any such meeting or otherwise
in accordance with the provisions of Section 1 of this Agreement. This proxy and
power of attorney is irrevocable and coupled with an interest in favor of
Purchaser. Each Stockholder hereby revokes all other proxies and powers of
attorney with respect to the Shares (and all other securities issued to the
Stockholder in respect of the Shares) which it may have heretofore appointed or
granted, and no subsequent proxy or power of attorney shall be given or written
consent executed (and if given or executed, shall not be effective) by the
Stockholder with respect thereto.
3. No Disposition or Encumbrance of Shares. Each Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement, the
Stockholder shall not, and shall not offer or agree to, sell, transfer, tender,
assign, hypothecate or otherwise dispose of, or create or permit to exist any
security interest, lien, claim, pledge, option, right of first refusal,
agreement, limitation on the Stockholder's voting rights, charge or other
encumbrance of any nature whatsoever with respect o the shares.
4. No Solicitation of Transactions. Except with respect to activities as a
director of the Company, each Stockholder shall not, directly or indirectly,
through any agent or representative or otherwise, (i) solicit, initiate,
facilitate or encourage (including by way of furnishing or disclosing non-public
information) any inquiries or the making of any proposal with respect to any
merger, consolidation or other business combination involving the Company or
acquisition of any kind of material portion of the assets or capital stock of
the Company (an "Acquisition Transaction") or negotiate, explore or otherwise
communicate in any way with any third party with respect
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to any Acquisition Transaction or enter into any agreement, arrangement or
understanding requiring it to abandon, terminate or fail to perform as
contemplated by this Agreement. Each Stockholder immediately shall cease and
cause to be terminated all existing discussions or negotiations of the
Stockholder and its agents or other representatives with any Person conducted
heretofore with respect to any of the foregoing. Each Stockholder shall notify
immediately Purchaser if any proposal or offer, or any inquiry or contact with
any Person with respect to an Acquisition Transaction, is made and shall, in any
such notice to Purchaser, indicate in reasonable detail the identity of the
Person making such proposal, offer, inquiry or contact and the terms and
conditions of such proposal, offer, inquiry or contact. The provisions of this
Section 4 shall not apply to or restrict any action that may be taken by any
Stockholder in his capacity as a director of the Company.
5. Legend on Certificates. The certificate(s) evidencing the Shares shall
be endorsed with a restrictive legend substantially as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A VOTING
AGREEMENT DATED AS OF DECEMBER 14, 1997 BETWEEN THE REGISTERED HOLDER
HEREOF AND ELAN CORPORATION, PLC, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF THE COMPANY. THE HOLDER OF THIS CERTIFICATE, BY
HIS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY ALL THE TERMS OF SUCH
AGREEMENT, AS THE SAME IS IN EFFECT FROM TIME TO TIME.
6. Representations and Warranties of the Stockholders. Each Stockholder
hereby severally represents and warrants with respect to itself and its
ownership of the Shares to Purchaser as follows:
a. Authority Relative to this Agreement. The Stockholder has all necessary
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby have
been duly and validly authorized by all necessary action on the part of the
Stockholder. This Agreement has been duly and validly executed and delivered by
the Stockholder and, assuming the due authorization, execution and delivery by
Purchaser, constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms, except that
such en-
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forceability may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally.
b. No Conflict. The execution and delivery of this Agreement by the
Stockholder does not, and the performance of this Agreement by the Stockholder
will not, (i) require any consent, approval, authorization or permit of, or
filing with or notification to (other than pursuant to the HSR Act and the
Securities Exchange Act of 1934, as amended), any governmental or regulatory
authority, domestic or foreign, (ii) conflict with or violate the Certificate of
Incorporation or By-laws of the Stockholder, (iii) conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to the Stockholder
or by which any property or asset of the Stockholder is bound, or (iv) result in
any breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give to others any right of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or other encumbrance of any nature whatsoever on any property
or asset of the Stockholder pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
any property or asset of the Stockholder is bound.
c. Title to the Shares. The Shares owned by the Stockholder are all the
securities of the Company owned, either of record or beneficially, by the
Stockholder. The Stockholder owns all such Shares free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal, agreements,
limitations on the Stockholder's voting rights, charges and other encumbrances
of any nature whatsoever, and, except as provided in this Agreement, the
Stockholder has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Shares.
d. Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Stockholder.
7. Representations and Warranties of Purchaser. Purchaser hereby represents
and warrants to the Stockholders that Purchaser has all necessary power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by
Purchaser have been duly authorized by all necessary
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action on the part of Purchaser. This Agreement has been duly and validly
executed and delivered by Purchaser and, assuming the due authorization,
execution and delivery by the Stockholders, constitutes a legal, valid and
binding obligation of Purchaser enforceable in accordance with its terms, except
that such enforceability may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally.
8. Termination of Agreement.Purchaser reserves the right in its sole
discretion at any time hereafter to terminate this Agreement and all irrevocable
proxies granted to it hereunder.
9. Miscellaneous.
a. Expenses. Except as otherwise provided herein or in the Merger
Agreement, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses.
b. Further Assurances. From time to time at the other party's reasonable
request, Purchaser and the Stockholders will execute and deliver all such
further documents and instruments and take all such further action as may be
necessary in order to consummate the transactions contemplated hereby.
c. Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any of the provisions of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy to which they may be entitled at law or in equity.
d. Entire Agreement. This Agreement constitutes the entire agreement
between Purchaser and the Stockholders with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral,
between Purchaser and the Stockholders with respect to the subject matter
hereof.
e. Assignment. This Agreement shall not be assigned by operation of law or
otherwise, without the prior written consent of the parties.
f. Obligations of Successors; Parties in Interest. This Agreement shall be
binding upon, inure solely to the benefit of, and be enforceable by, the
successors and permitted assigns of the parties hereto. Nothing in this
Agreement, ex-
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press or implied, is intended to or shall confer upon any other person any
rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
g. Amendment; Waiver. This Agreement may not be amended or changed except
by an instrument in writing signed by the parties hereto. Any party hereto may
(i) extend the time for the performance of any obligation or other act of the
other party hereto, (ii) waive any inaccuracy in the representations and
warranties contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement or condition contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
h. Severability. The validity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
i. Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by cable, telecopy,
telegram or telex or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 8(i):
if to Purchaser:
Elan Corporation, plc
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxx 0
Xxxxxxx
Attention: Xxxxxx X. Xxxxx
Telecopy: 011-353-1-662-4963
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with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx.
Telecopy: (000) 000-0000
if to any Stockholder:
at the respective addresses of such Stockholder
set forth on the signature pages to this Agreement.
j. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS
EXECUTED IN AND TO BE PERFORMED IN THAT STATE.
k. Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
l. Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
rights, benefits or remedies or any nature whatsoever under or by reason of this
Agreement.
m. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
n. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ANY RIGHT IT MIGHT HAVE
TO A JURY TRIAL OF ANY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT.
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IN WITNESS WHEREOF, Purchaser and the Stockholders have duly executed this
Agreement, as of the date first written above.
PURCHASER:
ELAN CORPORATION, PLC
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
STOCKHOLDERS: NUMBER OF SHARES OWNED:
/s/ Xxxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxxx Xxxxx
Address: 0000 Xxxxx Xxx
Xxxxxx Xxxx, XX 00000
/s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Address: 0000 X.X. 000 Xxxxxx
Xxxxx, XX 00000
