COMPANY STOCKHOLDERS VOTING AGREEMENT
This COMPANY STOCKHOLDERS VOTING AGREEMENT (the "AGREEMENT"), dated as
of this 29th day of June 2001, is entered into by and among XXXX LABORATORIES,
INC., a New York corporation ("PARENT"), SOLVAY PHARMACEUTICALS, INC., a Georgia
corporation ("SOLVAY"), Mr. E. Xxxxxx Xxxxxxxx, Chief Executive Officer and
Chairman of the Board of Directors of DURAMED, INC., a Delaware corporation (the
"COMPANY" and Mr. E. Xxxxxx Xxxxxxxx is hereinafter "XXXXXXXX"), and those other
individuals who are directors of the Company listed on Part A of Schedule I
hereto. As used herein, each Solvay, XXXXXXXX and the individuals listed on Part
A of Schedule I hereto shall individually be referred to as a "STOCKHOLDER" and
collectively, the "STOCKHOLDERS."
W I T N E S S E T H:
WHEREAS, Parent, Beta Merger Sub I, Inc., a Delaware corporation
("MERGER SUB"), and the Company have entered into an Agreement and Plan of
Merger of even date herewith (as the same may be amended from time to time, the
"MERGER AGREEMENT"), pursuant to which the parties thereto have agreed, upon the
terms and subject to the conditions set forth therein, to merge the Merger Sub
with and into the Company (the "MERGER");
WHEREAS, as of the date hereof, each Stockholder is the record or
Beneficial Owner (as defined below) of the number of shares (the "SHARES") of
common stock, par value $0.01 per share, of the Company (the "COMPANY COMMON
STOCK"), set forth next to each such Stockholder's name on Part A of Schedule I
hereto; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that each Stockholder agree, and each Stockholder
is willing to agree, to the matters set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereto agree as follows:
1. Definitions. Capitalized terms not expressly defined in this
Agreement shall have the meanings ascribed to them in the Merger Agreement. For
purposes of this Agreement:
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect
to any securities shall mean having voting power with respect to such
securities (as determined pursuant to Rule 13d-3(a)(1) under the
Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
(b) "TERMINATION DATE" shall mean the date of the termination
of the Merger Agreement pursuant to the terms thereof.
2. Voting Agreement. From the date of this Agreement and
ending on the first to occur of the Effective Time or the Termination
Date, each Stockholder hereby agrees to vote (or cause to be voted) all
of such Stockholder's Shares (and any and all securities issued or
issuable in respect thereof) which such Stockholder is entitled to
vote,
at any annual, special or other meeting of the stockholders of the
Company, and at any adjournment or adjournments thereof, in favor of
the Merger and the transactions contemplated by the Merger Agreement.
3. Covenants, Representations and Warranties of the
Stockholders and Parent.
(a) Each Stockholder hereby represents, warrants and
covenants to Parent as follows with respect to itself:
(i) Ownership. As of the date of this Agreement,
the Stockholder is either (A) the record and Beneficial Owner
of, or (B) the Beneficial Owner but not the record holder of,
the number of issued and outstanding Shares set forth next to
such Stockholder's name on Part A of Schedule I hereto and
any Options and SARs set forth next to such Stockholder's
name on Part B of Schedule I hereto. As of the date of this
Agreement, the Shares set forth next to such Stockholder's
name on Part A of Schedule I hereto constitute all of the
issued and outstanding Shares owned of record or Beneficially
Owned by the Stockholder. Except as otherwise set forth in
Part A to Schedule I hereto, the Stockholder has the sole
power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Shares set
forth next to such Stockholder's name on Part A of Schedule I
hereto, with no material limitations, qualifications or
restrictions on such rights, subject to applicable securities
Laws and the terms of this Agreement.
(ii) Power; Binding Agreement. The Stockholder has
the legal capacity, power and authority to enter into and
perform all of the Stockholder's obligations under this
Agreement. This Agreement has been duly and validly executed
and delivered by the Stockholder and (assuming that this
Agreement has been duly and validly executed by the other
signatories hereto) constitutes a valid and binding agreement
of the Stockholder, enforceable against the Stockholder in
accordance with its terms (except as such enforceability may
be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, or similar laws of
general applicability relating to or affecting creditors'
rights generally and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law)). There is no beneficiary or
holder of a voting trust certificate or other interest of any
trust of which the Stockholder is trustee whose consent is
required for the execution and delivery of this Agreement or
the consummation by the Stockholder of the transactions
contemplated hereby. If the Stockholder is an individual and
married and the Stockholder's Shares constitute community
property, this Agreement has been duly authorized, executed
and delivered by, and constitutes a valid and binding
agreement of, the Stockholder's spouse, enforceable against
such person in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar Laws affecting
creditors' rights generally and by general equitable
principles (regardless of whether enforceability is
considered in a proceeding in equity or at Law)).
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(iii) No Encumbrances. Except as required by
Section 2 hereof, at all times during the term hereof, all of
the Shares will be held by the Stockholder, or by a nominee
or custodian for the benefit of the Stockholder, or by a
family member or Affiliate of the Stockholder (subject to the
conditions set forth in clause (v) below) free and clear of
all Liens.
(iv) Restriction on Transfer, Proxies and
Non-Interference. Except as otherwise contemplated by the
Merger Agreement or this Agreement, from and after the date
of this Agreement and ending on the first to occur of the
Effective Time or the Termination Date, the Stockholder shall
not (A) offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition
of (each, a "TRANSFER") any or all of the Shares, or any
interest therein, (B) grant any proxies or powers of
attorney, deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares, (C) enter
into any agreement or arrangement providing for any of the
actions described in clause (A) or (B) above, or (D) take any
action that would reasonably be expected to have the effect
of preventing or disabling the Stockholder from performing
the Stockholder's obligations under this Agreement, unless
transferees agree to be bound by the terms of this Agreement.
(v) Litigation. There is no action pending, or to
the Knowledge of the Stockholder, threatened against or
affecting the Stockholder, nor is there any judgment, decree,
injunction or order of any applicable Governmental Entity or
arbitrator outstanding against the Stockholder which would
prevent the carrying out of this Agreement or the Merger
Agreement or any of the transactions contemplated hereby or
thereby, declare unlawful the transactions contemplated
hereby or thereby or cause such transactions to be rescinded.
(vi) Documents Received. The Stockholder
acknowledges receipt of a copy of the Merger Agreement,
including all schedules and exhibits thereto.
(vii) Further Assurances. From time to time, at
Parent's request and without further consideration, the
Stockholder shall execute and deliver such additional
documents as may be reasonably necessary or desirable to
consummate and make effective, the transactions contemplated
by this Agreement.
(b) Parent hereby represents, warrants and covenants to the
Stockholders as follows:
(i) Organization, Standing and Corporate Power.
Parent is a corporation duly organized, validly existing and
in good standing under the Laws of its jurisdiction of
organization, with full corporate power and authority to own
its properties and carry on its business as presently
conducted. Parent has the
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corporate power and authority to enter into and perform all
of its obligations under this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by Parent and
(assuming this Agreement is duly and validly executed and
delivered by the other signatories hereto) constitutes a
valid and binding agreement of Parent, enforceable against
Parent in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy,
fraudulent transfer, reorganization, moratorium or similar
laws of general applicability relating to or affecting
creditors' rights generally and by general equitable
principles (regardless of whether enforceability is
considered a proceeding in equity or at Law)).
(ii) No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any Person is
necessary for the execution of this Agreement by either
Parent and the consummation by Parent of the transactions
contemplated hereby, except where the failure to obtain such
consent, permit, authorization, approval or filing would not
interfere with its ability to perform its obligations
hereunder, and none of the execution and delivery of this
Agreement by Parent, the consummation by Parent of the
transactions contemplated hereby or compliance by Parent with
any of the provisions hereof shall (A) conflict with or
result in any breach of any applicable organizational
documents applicable to Parent, (B) result in a violation or
breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which Parent
is a party or by which Parent or any of Parent's properties
or assets may be bound, (C) require any consent, approval,
authorization or permit of, registration, declaration or
filing with, or notification to, any Governmental Entity, or
(D) violate any Legal Provision applicable to Parent or any
of Parent's properties or assets, in each such case except to
the extent that any conflict, breach, default or violation
would not interfere with the ability of Parent to perform its
obligations hereunder.
(iii) Execution, Delivery and Performance by
Parent. The execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by
the Board of Directors of Parent, and Parent has taken all
other actions required by Law and its organizational
documents to consummate the transactions contemplated by this
Agreement.
4. Recapitalization; Option Exercise. In the event of a stock dividend
or distribution, or any change in the Shares (or any class thereof) by reason of
any split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall include, all such stock dividends and distributions and any
shares into which or for which any or all of the Shares (or any class thereof)
may be changed or exchanged as may be appropriate to reflect such
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event. The term "Shares" shall also include any shares of Company Common Stock
acquired by any Stockholder after the date of this Agreement and before the
first to occur of the Effective Time or the Termination Date.
5. Irrevocable Proxy. Each Stockholder hereby grants to, and appoints,
Parent, the Secretary of Parent, any Assistant Secretary of Parent and the Chief
Financial Officer of Parent, in their respective capacities as officers of
Parent, and any individual who shall hereafter succeed to any such office of
Parent, and any other designee of Parent, each of them individually, the
Stockholder's irrevocable proxy (with full power of substitution) to vote the
Stockholder's Shares in favor of the Merger and the transactions contemplated by
the Merger Agreement at any meeting of stockholders of the Company or any
adjournment thereof. Each Stockholder agrees that such proxy is irrevocable
until this Agreement is terminated in accordance with Section 10 hereof and
coupled with an interest and will take such further action or execute such other
instruments as may be necessary to effectuate the intent of this proxy and
hereby revokes any proxy previously granted by the Stockholder with respect to
the Shares.
6. Information. Each Stockholder will provide all information
reasonably requested by Parent for inclusion in the Joint Proxy Statement and
the Registration Statement.
7. Stockholder Capacity. No Stockholder makes any agreement or
understanding herein in the capacity of a director or officer of the Company.
Each Stockholder executes this Agreement solely in such Stockholder's capacity
as a record owner and/or Beneficial Owner of the Shares and nothing herein shall
limit or affect any actions taken by such Stockholder or any designee of such
Stockholder in such Stockholder's capacity, if any, as a director or officer of
the Company or any of its Subsidiaries; provided, however, that no such duty as
a director or officer of the Company shall excuse any Stockholder from its
obligations as a Stockholder to vote the Shares, to the extent that they may be
so voted, or otherwise perform any obligation as herein provided and to
otherwise comply with the terms and conditions of this Agreement.
8. Indemnification. Parent shall, to the fullest extent permitted under
applicable Law, indemnify and hold harmless each Stockholder against any costs
or expenses (including attorneys' fees as provided below), judgments, fines,
losses, claims, damages, liabilities and amounts paid in settlement in
connection with any claim, action, suit, proceeding or investigation by or on
behalf of the Company, the Surviving Corporation or any stockholder of the
Company asserting any breach by the Stockholder of any fiduciary duty on such
Stockholder's part to the Company, the Surviving Corporation or the other
stockholders of the Company by reason of the Stockholder entering into this
Agreement, for a period of two years after the later of the date hereof and the
Effective Date. If a Stockholder seeks indemnification from Parent for any such
claim, action, suit, proceeding or investigation (whether arising before or
after the termination of this Agreement), (a) Parent shall pay the fees and
expenses of one counsel selected by such Stockholder and reasonably acceptable
to Parent to represent such Stockholder in connection therewith promptly after
statements therefor are received, and (b) Parent will cooperate in the defense
of any such matter; provided, however, that Parent shall not be liable for any
settlement effected without its written consent (which consent shall not be
unreasonably withheld); provided, further, that in the event that any claim or
claims for indemnification under this Section 9 are asserted or made within such
two-year period, all rights to indemnification in
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respect of any such claim or claims shall continue until the final disposition
of any and all such claims. This Section 9 shall survive until the latest of the
following: (i) two years from the later of the date hereof and the Effective
Date, (ii) the termination of this Agreement, and (iii) the final disposition of
all claims for indemnification asserted or made within such two-year period.
9. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject
matter hereof.
(b) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or
terminated, except upon the execution and delivery of a written
agreement executed by the parties hereto.
(c) 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 received if so given) by hand
delivery, telegram, telex or telecopy, or by mail (registered or
certified mail, postage prepaid, return receipt requested) or by any
courier service, such as Federal Express, providing proof of delivery.
Except for Parent whose address is set forth below, all communications
hereunder shall be delivered to the respective parties at the addresses
set forth on Part A of Schedule I hereof.
If to Parent: Xxxx Laboratories, Inc.
0 Xxxxxx Xxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: General Counsel
Facsimile No.: (000) 000-0000
with a copy to: Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(d) Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law but if any
provision or portion of any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable
law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and
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this Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein.
(e) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by any party of any covenants
or agreements contained in this Agreement will cause the other party to
sustain damages for which they would not have an adequate remedy at law
for money damages, and therefore each of the parties hereto agrees that
in the event of any such breach the other party shall be entitled to
the remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy
to which they may be entitled, at law or in equity.
(f) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative, and the
exercise of any thereof by any party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy
by such party.
(g) No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at Law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder,
and any custom or practice of the parties at variance with the terms
hereof, shall not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to demand such
compliance.
(h) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any
person or entity who or which is not a party hereto; provided that, in
the event of a Stockholder's death, the benefits and obligations of
such Stockholder hereunder shall inure to his successors and heirs.
(i) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the Laws of the State of Delaware,
without regard to any applicable conflicts of law.
(j) Jurisdiction. Each of the parties hereto (a) consents to
submit itself to the personal jurisdiction of any court located in the
State of Delaware in the event any dispute arises out of this Agreement
or any of the transactions contemplated by this Agreement, (b) agrees
that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court and (c) agrees
that it will not bring any action relating to this Agreement or any of
the transactions contemplated by this Agreement in any court other than
a federal or state court sitting in the State of Delaware.
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(k) Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of
this Agreement.
(l) Counterparts. This Agreement may be executed in
counterparts (including by facsimile), each of which shall be deemed to
be an original, but all of which, taken together, shall constitute one
and the same Agreement. This Agreement shall not be effective as to any
party hereto until such time as this Agreement or a counterpart thereof
has been executed and delivered by each party hereto.
10. Termination. This Agreement shall terminate without any further
action on the part of any party hereto on the first to occur of the Effective
Time or the Termination Date.
[Signature Page Follows]
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COMPANY STOCKHOLDERS VOTING AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by Xxxxxxxx and the individuals listed on Part A of Schedule I hereto and duly
authorized officer of Parent and Solvay on the day and year first written above.
XXXX LABORATORIES, INC.
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Title: Senior Vice President
SOLVAY PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Title: President and CEO
E. XXXXXX XXXXXXXX
/s/ E. Xxxxxx Xxxxxxxx
-------------------------------------
X. XXXXXXXXXXXX
/s/ X. Xxxxxxxxxxxx
-------------------------------------
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
-------------------------------------
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
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XXXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
XXXXXXX XXXXXXXXX
/s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
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SCHEDULE I
Part A
Name and Address of Stockholder Shares of Common Stock
------------------------------- ----------------------
Solvay Pharmaceuticals, Inc.
E. Xxxxxx Xxxxxxxx
Part B
Name of Stockholder Other Securities
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