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BENTLEY PHARMACEUTICALS INC
|
SC 13D
Apr 9, 11:16 AM ET
BENTLEY PHARMACEUTICALS INC SC 13D
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Contents
48
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions. Capitalized, undefined terms used in this Agreement shall have the respective meanings ascribed to such terms in the Merger Agreement. For purposes of this Agreement, the terms below shall have the following meanings:
ARTICLE II COVENANTS OF STOCKHOLDERS
Section 2.1 Irrevocable Proxy. Concurrently with the execution of this Agreement, each Stockholder shall execute and deliver to Buyer a proxy in the form attached hereto as Exhibit A (each, a “Proxy”). Each Proxy shall be irrevocable to the fullest extent provided in Section 212 of the Delaware General Corporation Law (the “DGCL”) with respect to the securities referred to therein.
Section 2.2 Agreement to Vote.
(a) At any meeting of the stockholders or holders of other securities of the Company, however called, and at every adjournment or postponement thereof, or in connection with any written consent of, or any other action by, the stockholders or other holders of securities of the Company given or solicited, each Stockholder shall vote, or provide his or her consent with respect to, all of such Stockholder’s Subject Securities entitled to vote or to consent thereon: (i) in favor of adoption, approval and consummation of the Merger Agreement and the transactions contemplated thereby (including, without limitation, the Merger and the Spin-Off) and any actions required in furtherance thereof and (ii) against any Alternative Transaction or any other action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or that is intended, or could reasonably be expected, to materially impede, interfere with, delay, postpone, discourage or adversely affect the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(b) Each Stockholder hereby agrees that he or she shall not directly or indirectly enter into any agreement (whether written or oral) with any other Person (other than Buyer) to vote, grant any proxy or give instructions with respect to the voting of, any Subject Securities that are Beneficially Owned by such Stockholder.
Section 2.3 Revocation of Proxies; Cooperation.
(a) Each Stockholder hereby severally, but not jointly, and with respect only to himself or herself and not any other Stockholder, represents and warrants to Buyer that any proxies heretofore given in respect of the Subject Securities Beneficially Owned by such Stockholder are not irrevocable, and such Stockholder hereby revokes any and all proxies (other than the Proxies) with respect to such Subject Securities. Stockholder shall not grant any proxies or powers of attorney with respect to the matters set forth in Section 2.2 hereof (other than to Buyer), deposit any of the Subject Securities Beneficially Owned by him or her, or enter into a voting agreement (other than this Agreement) with respect to any of such Subject Securities.
(b) Each Stockholder shall use all reasonable efforts to (i) cooperate with the Company, Acquisition Sub and Buyer in connection with, and in furtherance of, the transactions contemplated by the Merger Agreement (including, without limitation, the
Merger and the Spin-Off), (ii) promptly take such actions as are reasonably necessary or appropriate to consummate such transactions, and (iii) provide any information reasonably requested by the Company or Buyer for any regulatory application or filing made or approval sought in respect of such transactions.
Section 2.4 No Limitation. Buyer and each Stockholder hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the provisions of this Agreement apply solely to such Stockholder when acting in his or her capacity as a holder of securities of the Company and not when acting or purporting to act as a director or officer of the Company (it being understood that the Company has separate and independent obligations to Buyer under the Merger Agreement); and (ii) none of the provisions of this Agreement shall be construed to prohibit, limit or restrict any Stockholder from exercising his or her fiduciary duties to the Company by voting or taking any other action whatsoever in the capacity of a director or officer of the Company.
Section 2.5 No Transfer of Subject Securities; Publicity.
(a) During the term of this Agreement, (i) no Stockholder shall take any action to subject any of the Subject Securities that are Beneficially Owned by him or her to any Lien, (ii) no Stockholder shall (w) Transfer or agree to Transfer, (x) solicit or encourage (including by way of providing material nonpublic information) any proposal, (y) participate or engage in discussions or negotiations, or (z) enter into any agreement or arrangement in principal, in each case with respect to the Transfer of any of the Subject Securities that are Beneficially Owned by him or her or grant any proxy or power-of-attorney with respect to any such Subject Securities, (iii) each Stockholder shall vote all of such Stockholder’s Subject Securities against any Alternative Transaction and (iv) each Stockholder shall use all reasonable efforts to prevent creditors in respect of any pledge of the Subject Securities that are Beneficially Owned by him or her from exercising their rights under such pledge. This Section 2.5 shall not prohibit a Transfer of Subject Securities by a Stockholder to any member of such Stockholder’s immediate family, or to a trust for the benefit of such Stockholder or any member of such Stockholder’s immediate family; provided, however, that a Transfer referred to in this sentence shall be permitted only if, as a condition precedent to such Transfer, the transferee in such Transfer agrees in a writing that is reasonably satisfactory in form and substance to Buyer to be bound by all of the terms of this Agreement as though such transferee were a Stockholder hereunder.
(b) Except to the extent required by applicable law, each Stockholder shall not, and each Stockholder shall cause his or her Affiliates and their respective directors (or persons in similar positions), officers, employees, agents or representatives (as applicable) not to, make any press release or public announcement with respect to the business or affairs of the Company or Buyer, including this Agreement and the Merger Agreement and the transactions contemplated hereby and thereby, without the prior written consent of Buyer and the Company in each instance, which consent shall not be unreasonably withheld, delayed or conditioned.
Section 2.6 No Appraisal. Each Stockholder hereby (a) agrees not to make a demand for appraisal in respect of any Subject Securities that are Beneficially Owned by
him or her and (b) hereby irrevocably and unconditionally waives any and all appraisal rights (including, without limitation, under Section 262 of the DGCL), dissenters’ rights and similar rights relating to the Merger Agreement or any of the transactions contemplated thereby (including, without limitation, the Merger).
ARTICLE III REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Section 3.1 Ownership. Such Stockholder is the sole Beneficial Owner and the record and legal owner of the Subject Securities or options, warrants or other rights to acquire Subject Securities, as applicable, set forth opposite such Stockholder’s name on Schedule I attached hereto, which Subject Securities constitute all of the securities of the Company that are Beneficially Owned by such Stockholder as of the date hereof; and such Stockholder has good and valid title to all of such Subject Securities, free and clear of all Liens, options, proxies and voting agreements and has the sole right to such Subject Securities, and there are no restrictions on rights of disposition or other Liens pertaining to such Subject Securities. None of the Subject Securities set forth opposite such Stockholder’s name on Schedule I attached hereto is subject to any voting trust or other contract (whether written or oral) with respect to the voting thereof, and no irrevocable proxy, power of attorney or other authorization has been granted with respect to any of such Subject Securities.
Section 3.2 Authority and Non-Contravention.
(a) Assuming due authorization, execution and delivery of this Agreement by Buyer, this Agreement has been duly and validly executed and delivered by such Stockholder and constitutes the legal, valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms except (i) to the extent limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought; and such Stockholder has all necessary power, authority and legal capacity to execute and deliver this Agreement and to perform his or her obligations under this Agreement, and no other proceedings or actions on the part of such Stockholder are necessary to authorize such Stockholder’s execution, delivery or performance of this Agreement or its consummation of the transactions contemplated hereby.
(b) Except for applicable filings to be made by such Stockholder under Section 13 of the Exchange Act, such Stockholder is not nor will it be required to make any filing with or give any notice to, or to obtain any consent from, any Person or Governmental Entity in connection with the execution, delivery or performance of this Agreement or to
obtain any permit or approval from any Governmental Entity for any of the transactions contemplated hereby.
(c) Neither the execution and delivery of this Agreement by such Stockholder nor the consummation of the transactions contemplated hereby will directly or indirectly (whether with notice or lapse of time or both) (i) conflict with, result in any violation of, require any consent under or constitute a default by such Stockholder under any mortgage, bond, indenture, agreement, instrument or obligation to which such Stockholder is a party or by which he or she or any of his or her assets (including any Subject Securities that are Beneficially Owned by such Stockholder) are bound, or violate any permit of any Governmental Entity, or any law, order or consent decree to which such Stockholder, or any of his or her assets (including any Subject Securities that are Beneficially Owned by such Stockholder), may be subject, or (ii) result in the imposition or creation of any Lien upon or with respect to any of the assets owned or used by such Stockholder (including any Subject Securities that are Beneficially Owned by him or her), except, in each case, for any violations, failures to obtain consents, defaults or other actions that would not, and would not reasonably be expected to, individually or in the aggregate, prevent or delay the performance of such Stockholder under this Agreement.
Section 3.3 Total Shares. Except as set forth on Schedule I attached hereto, such Stockholder is not the Beneficial Owner of, and does not have (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any right to acquire, and has no other interest in or voting rights with respect to, any securities of the Company.
Section 3.4 Reliance. Such Stockholder understands and acknowledges that Buyer is entering into the Merger Agreement in reliance upon such Stockholder’s execution, delivery and performance of this Agreement.
ARTICLE IV GENERAL PROVISIONS
Section 4.1 No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Buyer or any of its Affiliates (including, without limitation, Acquisition Sub) any direct or indirect ownership or incidents of ownership of or with respect to any Subject Securities. All rights, ownership and economic benefits of and relating to the Subject Securities shall remain and belong to the Stockholders, and Buyer and its Affiliates (including, without limitation, Acquisition Sub) shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct any Stockholder in the voting of any of the Subject Securities, except as otherwise provided herein.
Section 4.2 Notices. All notices, consents, waivers and other communications under this Agreement shall be in writing (including facsimile or similar writing) and shall be given:
(a) If to Buyer, to:
(b) If to a Stockholder, to such Stockholder’s address set forth on Schedule I attached hereto.
Section 4.3 Entire Agreement and Modification. This Agreement, each Proxy and any other documents delivered by the parties hereto in connection herewith constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and constitute (along with the documents delivered pursuant to this Agreement) a complete and exclusive statement of the terms of the agreement among the parties hereto with respect to the subject matter hereof. This Agreement shall not be amended, supplemented or otherwise modified except by a written document executed by the party against whose interest the modification will operate.
Section 4.4 Drafting and Representation. The parties hereto hereby agree that the terms and language of this Agreement were the result of negotiations between the parties and, as a result, there shall be no presumption that any ambiguities in this Agreement shall be resolved against any party hereto. Any controversy over construction of this Agreement shall be decided without regard to events of authorship or negotiation.
Section 4.5 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction, as determined by a court of competent jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without affecting the validity or enforceability of the remaining provisions hereof. Any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable.
Section 4.6 Assignment, Binding Effect and No Third-Party Rights. This Agreement shall not be assigned (by operation of law or otherwise) without the prior written consent of Buyer (in the case of assignment by a Stockholder) or the Stockholders (in the case of an assignment by Buyer), and any purported assignment or delegation other than in accordance with this Section 4.6 shall be void ab initio; provided that Buyer may assign its rights and obligations hereunder to Acquisition Sub or any other subsidiary of Buyer. This Agreement will apply to, be binding in all respects upon, and inure to the benefit of each of the parties hereto and their respective successors, personal or legal representatives, heirs, distributes, devisees, legatees, executors, administrators and permitted assigns. Nothing expressed or referred to in this Agreement will be construed to give any Person, other than the parties to this Agreement, any legal or equitable right, remedy or claim under or with respect to this Agreement or any provision of this Agreement except such rights as may inure to the respective successors, personal or legal representatives, heirs, distributes, devisees, legatees, executors, administrators and permitted assigns of the parties hereto as provided in this Section 4.6.
Section 4.7 Enforcement of Agreement. Each Stockholder hereby acknowledges and agrees that Buyer and/or its Affiliates (including, without limitation, Acquisition Sub) could be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms and that any breach of this Agreement by such Stockholder could not be adequately compensated by monetary damages. Accordingly, such Stockholder hereby (a) waives, in any action for specific performance, the defense of adequacy of a remedy at law and (b) agrees that, in addition to any other right or remedy to which Buyer may be entitled, at law or in equity, Buyer shall be entitled to enforce any provision of this Agreement by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of this Agreement, without posting any bond or other undertaking.
Section 4.8 Waiver. The rights and remedies of the parties to this agreement are cumulative and not alternative. Neither any failure nor any delay by a party in exercising any right, power or privilege under this Agreement, any Proxy or any of the documents referred to in this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by law, (a) no claim or right arising out of this Agreement, any Proxy or any of the documents referred to in this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in a written document signed by each other party hereto against whom such waiver or renunciation is charged, (b) no waiver that may be given by a party hereto will be applicable except in the specific instance for which it is given, and (c) no notice to or demand on one party hereto will be deemed to be a waiver of any obligation of that party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement, any applicable Proxy or the documents referred to in this Agreement.
Section 4.9 Governing Law. This Agreement and all acts and transaction pursuant hereto, and the rights of obligations of the parties hereto and any dispute arising out of, relating to or in connection with this Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without regard to any provisions that might require the application of the Law of a different jurisdiction.
Section 4.10 Consent to Jurisdiction.
(a) Each of the parties hereto 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 exclusively in a state or federal court located in Delaware. In addition, each of Buyer, Acquisition Sub and the Stockholders hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the District of Delaware (or, if such court does not have jurisdiction over the subject matter of such proceeding or if such jurisdiction is not available, in the Court of Chancery of the State of Delaware, County of New Castle), not to bring any claim regarding such a dispute in any other court, and to waive unconditionally any objection to the laying of venue in such forum, including any claim of inconvenient forum. Each of the parties further agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth above or on Schedule I hereto, as applicable, shall be effective service of process for any action, suit or proceeding brought against such party in any such court. The parties agree that a final judgment in any such dispute shall be conclusive and may be enforced in other jurisdictions by suits on the judgment or in any other manner provided by law.
(b) Each of Buyer, Acquisition Sub and the Stockholders irrevocably consents to the service of the summons and complaint and any other process in any other action or proceeding relating to the transactions contemplated by this Agreement, on behalf of itself or its property, by personal delivery of copies of such process to such party. Nothing in this Section 4.10 shall affect the right of any party to serve legal process in any other manner permitted by Law.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS 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 ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 4.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same instrument.
Section 4.12 Termination. This Agreement and all obligations hereunder shall terminate at the Termination Time.
Section 4.13 Expenses. Except as otherwise provided in this Agreement, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses.
Section 4.14 Headings; Construction. 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. In this Agreement (a) words denoting the singular include the plural and vice versa, (b) “it” or “its” or words denoting any gender include all genders and (c) the word “including” shall mean “including, without limitation,” whether or not expressed.