Form of Parent Support Agreement
Exhibit 2.3
Form of Parent Support Agreement
November 23, 2018
Ladies and Gentlemen:
Reference is made in this letter (this “Agreement”) to
the Agreement and Plan of Merger and Reorganization, dated as of the date hereof (as it may be amended, modified or amended and restated from time to time, the “Merger Agreement”),
by and among Edge Therapeutics, Inc., a Delaware corporation (“Parent”), Echos Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Subsidiary”), and PDS Biotechnology Corporation, a Delaware corporation (the “Company”).
Capitalized or other terms used and not defined herein but defined in the Merger Agreement shall have the meanings ascribed to them in the Merger Agreement. In order to induce Parent and the Company to enter into the Merger Agreement, and
understanding that each of Parent and the Company are relying on the agreements set forth herein, [name of stockholder], [an individual][entity type] (the “Stockholder”),
hereby agrees as follows:
1. Stockholder Approval. Stockholder, solely in their capacity as a stockholder of the Parent and not in any other capacity, hereby agrees that, during the Agreement Period (as defined below), Proxyholder (as defined
below) shall exercise all of the voting rights attached to the Parent Common Stock held beneficially or of record by the Stockholder (including any shares of Parent Common Stock that are issued upon the exercise of any options held by the
Stockholder during the Agreement Period), which shares are set forth on Schedule 1 attached hereto (together with any shares issued upon the exercise of any options
held by the Stockholder during the Agreement Period, the “Subject Shares”) (including the execution and delivery on behalf of such Stockholder of all instruments and
documents to be executed by such Stockholder in its capacity as a voting stockholder): (a) in favor of adoption and approval of the Merger Agreement and approval of the Contemplated Transactions and (b) against any of the following actions or
proposals (other than the transactions contemplated by the Merger Agreement and the Contemplated Transactions, including but not limited to the Parent Stockholder Matters): (i) any change in the present capitalization of the Parent or any
amendment of the Organizational Documents of the Parent, including any redemption of any equity securities in the Parent; (ii) any change in the corporate structure or business of the Parent; or (iii) any other action or proposal involving the
Parent or any of its Subsidiaries that is intended, or would reasonably be expected, to prevent, impede, interfere with, delay, postpone or adversely affect in any material respect the transactions contemplated by the Merger Agreement or would
reasonably be expected to result in any of the conditions to the Parent obligations under the Merger Agreement not being fulfilled prior to the termination of the Merger Agreement.
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2. Dissenters’ Rights. The Stockholder hereby irrevocably and unconditionally waives (and shall cause each of its Affiliates, if ever a holder of Subject Shares or other capital stock of the Company, to irrevocably and
unconditionally waive) any dissenters’ rights, appraisal rights or similar rights that the Stockholder may have arising out of the consummation of the Merger and the Contemplated Transactions, whether arising out of applicable Law, contract or
otherwise, and the Stockholder hereby withdraws any and all objections or any other actions with respect to the Merger Agreement and Contemplated Transactions and/or demands for appraisal, if any, with respect to any shares of capital stock of
the Company owned or hereinafter acquired by the Stockholder.
3. Grant of Irrevocable Proxy. In order to secure the Stockholder’s obligation to vote the Subject Shares in accordance with this Agreement, each such Stockholder hereby appoints Parent as the proxyholder (the “Proxyholder”) with full power of substitution and re-substitution, commencing on the date of this Agreement for the duration of the Agreement Period, as such
Stockholder’s true and lawful attorney in fact and irrevocable proxy, for and in such Stockholder’s name, place and stead, to vote the Subject Shares as such Stockholder’s proxy with respect to the matters set forth in Section 1, including
whether at a meeting of stockholders (and at any adjournment or postponement thereof), or through the solicitation of a written consent of stockholders in lieu of meeting (whether of any individual class of shares or of multiple classes of shares
voting together as a single class). The proxy and power granted by such Stockholder pursuant to this Section 3 is coupled with an interest and is given to secure the performance of such Stockholder’s duties under this Agreement. The Stockholder
hereby revokes or agrees to promptly cause to be revoked any proxy that such Stockholder has heretofore granted with respect to the Subject Shares.
4. Restriction on Transfer. From the date of this Agreement until the Effective Time or, if earlier, the valid termination of the Merger Agreement in accordance with its terms (the “Agreement Period”), the Stockholder shall not (a) directly or indirectly, offer for sale, sell, transfer, tender, pledge, assign or otherwise dispose of (including by gift) (each, a “Transfer”), or agree to Transfer, any of the Subject Shares or any interest therein to any Person, (b) grant or agree to grant any proxy, power-of-attorney or other
authorization or consent in or with respect to any of such Subject Shares (except as provided in Sections 1 and 3 hereof), (c) otherwise permit any Encumbrance to be created on any Subject Shares or (d) take any other action that would make the Stockholder’s representations or warranties contained herein untrue or incorrect in any
material respect or restrict, limit or otherwise interfere with the performance of the Stockholder’s obligations in this Agreement. The Stockholder agrees that any Transfer in violation of this Section 4 shall be null and void.
5. No Solicitation. The Stockholder shall not, directly or indirectly, knowingly take any action that the Parent is not permitted to take pursuant to Section 4.4 of the Merger Agreement.
6. Documentation and Information. The Stockholder shall permit and hereby authorizes Parent to publish and disclose in all documents and schedules filed with the SEC, and any press release or other disclosure document
that Parent reasonably determines to be necessary in connection with the transactions contemplated by the Merger Agreement, the Stockholder’s identity and ownership of the Subject Shares and the nature of the Stockholder’s commitments and
obligations under this Agreement.
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7. Representations and Warranties. The Stockholder represents and warrants that:
(a) if the Stockholder is an entity, it is duly
organized, validly existing, and in good standing under the Laws of the jurisdiction of its incorporation or other formation;
(b) the Stockholder has all necessary power, authority
and capacity to execute and deliver this Agreement and to perform his, her or its obligations hereunder;
(c) the execution, delivery and performance of this
Agreement by the Stockholder has been duly and validly authorized by all necessary action on the part of the Stockholder, do not violate any provision of any agreement to which the Stockholder is a party, do not violate or conflict with and shall
not result in a material breach of any Law, and do not and shall not require authorization, approval, consent or further action by any other Person or result in the imposition of an Encumbrance on the Subject Shares;
(d) this Agreement has been duly and validly executed
and delivered by the Stockholder and constitutes a legal, valid and binding obligation of the Stockholder, enforceable against him, her or it in accordance with its terms, subject to the Enforceability Exceptions;
(e) as of the date of this Agreement, the Stockholder
is, and at all times during the Agreement Period shall be, the owner of the Subject Shares. As of the date of this Agreement, the Subject Shares together constitute all of the shares of capital stock of the Company owned by the Stockholder. The
Stockholder has, and at all times during the Agreement Period shall have, with respect to the Subject Shares, the sole power, directly or indirectly, to vote or dispose of the Subject Shares, and as such, has, and at all times during the
Agreement Period shall have, the complete and exclusive power to, directly or indirectly, (a) issue (or cause the issuance of) instructions with respect to the matters set forth in Section 1 of this Agreement, (b) agree to all matters set forth
in this Agreement, and (c) demand and waive dissenters’ rights. To the Stockholder’s knowledge, as of the date of this Agreement, the Subject Shares are issued and outstanding and entitled to be voted. Except as provided in this Agreement,
there are no agreements or arrangements of any kind, contingent or otherwise, to which the Stockholder is a party obligating the Stockholder to Transfer, or cause to be Transferred, any of the Subject Shares. Except pursuant to the Merger
Agreement, no Person has any contractual or other right or obligation to purchase or otherwise acquire any of the Subject Shares;
(f) as of the date of this Agreement, there is no
action pending, or, to the knowledge of the Stockholder, threatened against or affecting, the Stockholder or any of his, her or its properties or assets (including the Subject Shares) that could reasonably be expected to impair the ability of the
Stockholder to perform his, her or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis; and
(g) the Stockholder has had the opportunity to review
this Agreement and the Merger Agreement with counsel of his, her or its own choosing. The Stockholder understands and acknowledges that Parent and the Company are each entering into the Merger Agreement in reliance upon the Stockholder’s
execution, delivery and performance of this Agreement.
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8. Specific Performance. The Stockholder agrees that irreparable damage would occur to Parent and the Company in the event that any of the provisions of this Agreement were not performed by the Stockholder in
accordance with their specific terms or were otherwise breached. It is accordingly agreed that Parent and the Company shall be entitled to seek an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any Governmental Body of competent jurisdiction and that this shall include the right of Parent and the Company to fully perform the terms of this Agreement to the fullest extent permissible
pursuant to this Agreement and applicable Law and to thereafter cause this Agreement and the transactions contemplated hereby to be consummated on the terms and subject to the conditions thereto set forth in this Agreement. Such remedies shall,
however, be cumulative and not exclusive and shall be in addition to any other remedies which Parent and the Company may have under this Agreement or otherwise. The Stockholder agrees that the right of specific performance and other equitable
relief is an integral part of the transactions contemplated by this Agreement and the Merger Agreement and without that right, Parent and the Company would not have entered into this Agreement or the Merger Agreement. The Stockholder hereby
waives (a) any defenses in any action for specific performance, including the defense that a remedy at Law would be adequate, and (b) any requirement under any Law to post a bond or other security as a prerequisite to obtaining equitable relief.
9. Signatures. Delivery of an executed counterpart of a signature page to this Agreement by facsimile, electronically or portable document format shall be effective as delivery of a manually executed counterpart to this
Agreement.
10. Termination. This Agreement shall terminate automatically and be of no further force or effect upon the earlier of (i) the valid termination of the Merger Agreement in accordance with its terms and (ii) the Effective
Time, provided that nothing herein shall relieve any party to this Agreement from Liability for any breach of this Agreement, and Sections 8, 10-15 shall survive any termination of this Agreement.
11. Amendment. Any amendment, modification or revision of this Agreement shall be effective only if in a written instrument executed by the Stockholder, Parent and the Company. Any waiver of compliance or consent with
respect to the rights or obligations of Parent or the Company must be signed by Parent or the Company, as applicable, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
12. Assignment; Third Party Beneficiaries. This Agreement may not, without the prior written consent of Parent and the Company, be assigned, and any attempted assignment shall be null and void. The Company, Parent and
their respective successors and assigns are intended third party beneficiaries of this Agreement.
13. Notice. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly delivered and received hereunder (a) one Business Day after being sent for next Business Day delivery,
fees prepaid, via a reputable international overnight courier service, (b) upon delivery in the case of delivery by hand, or (c) on the date delivered in the place of delivery if sent by email or facsimile (with a written or electronic
confirmation of delivery) prior to 6:00 p.m. New York City time, otherwise on the next succeeding Business Day, in each case to the intended recipient as follows: (a) if to Parent, Merger Subsidiary or the Company, to the notice address listed in
Section 10.8 of the Merger Agreement and (b) if to the Stockholder, to the address listed on the signature page hereto.
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14. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of
conflicts of laws. In any action or proceeding between any of the parties hereto arising out of or relating to this Agreement, each of the parties: (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue
of the Court of Chancery of the State of Delaware or, to the extent such court does not have subject matter jurisdiction, the United States District Court for the District of Delaware or, to the extent that neither of the foregoing courts has
jurisdiction, the Superior Court of the State of Delaware; (b) agrees that all claims in respect of such action or proceeding shall be heard and determined exclusively in accordance with clause (a) of this Section 14; (c) waives any objection to
laying venue in any such action or proceeding in such courts; (d) waives any objection that such courts are an inconvenient forum or do not have jurisdiction over any such party; (e) agrees that service of process upon such party in any such
action or proceeding shall be effective if notice is given in accordance with Section 13; and (f) irrevocably and unconditionally waives the right to trial by jury.
15. Titles and Headings. The titles, captions and table of contents in this Agreement are for reference purposes only, and shall not in any way define, limit, extend or describe the scope of this Agreement or otherwise
affect the meaning or interpretation of this Agreement.
16. Severability. The invalidity of any portion hereof shall not affect the validity, force or effect of the remaining portions hereof. If it is ever held by any Governmental Body of competent jurisdiction that any
restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, such restriction shall be enforced to the maximum extent permitted by Law and, to the extent necessary, the parties hereto shall amend or
otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the original intent of the parties.
17. Further Assurances. The Stockholder will take such action as shall be reasonably requested by the Proxyholder to enable or facilitate the exercise of voting rights, including the execution and delivery of the
appropriate instruments of proxy or powers of attorney in order to give effect to Sections 1 and 3.
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Very truly yours,
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By:
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Name:
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Accepted and acknowledged:
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By:
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Name:
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Title:
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ECHOS MERGER SUB, INC.
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By:
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Name:
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Title:
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PDS BIOTECHNOLOGY CORPORATION
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By:
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Name:
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Title:
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Schedule 1
Subject Shares
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Holder
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Class
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Number of Shares
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