Exhibit 10.2
FORM OF STOCKHOLDER TENDER AGREEMENT
STOCKHOLDER TENDER
AGREEMENT (this " Agreement "), dated as of January 5, 2009,
is by and among Endo Pharmaceuticals, a Delaware corporation ("
Parent "), [ ], a Delaware corporation and
a direct, wholly-owned Subsidiary of Parent (" Merger Sub ")
and
[ ]
("Stockholder")
WHEREAS,
Stockholder is, as of the date hereof, the record and beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), which meaning
will apply for all purposes of this Agreement) of the number of
shares of Common Stock, par value $0.001 (the " Company Common
Stock ") of Indevus Pharmaceuticals, Inc., a Delaware
corporation (the " Company "), set forth opposite the name
of Stockholder on Schedule I hereto;
WHEREAS, Parent,
Merger Sub, and the Company have entered into an Agreement and Plan
of Merger, dated as of the date hereof, in the form attached hereto
as Exhibit A and as may be amended from time to time (the "
Merger Agreement "), which provides, among other things, for
Merger Sub to commence a tender offer for all of the issued and
outstanding shares of Company Common Stock (the " Offer ")
and, following the completion of the Offer, the merger of Merger
Sub with and into the Company (the " Merger
") upon the terms and subject to the conditions set
forth in the Merger Agreement (capitalized terms used herein
without definition shall have the respective meanings specified in
the Merger Agreement); and
WHEREAS, as a
condition to the willingness of Parent and Merger Sub to enter into
the Merger Agreement and as an inducement and in consideration
therefor, Stockholder has agreed to enter into this
Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements set forth herein and in the Merger Agreement, and
intending to be legally bound hereby, the parties hereto agree as
follows:
SECTION 1.
Representations and Warranties of Stockholder
. Stockholder hereby represents and warrants to Parent
and Merger Sub as follows:
(a)
Stockholder (i) is the record and beneficial owner of
the shares of Company Common Stock (together with any
shares of Company Common Stock which such Stockholder may acquire
at any time in the future during the term of this Agreement, the "
Shares ") set forth opposite Stockholder's name on Schedule
I to this Agreement and (ii) except as set forth in Schedule I to
this Agreement, neither holds nor has any beneficial ownership
interest in any other shares of Company Common Stock or any
performance based stock units, restricted stock, deferred stock
units, option (including any granted pursuant to a Company Option
Plan), or warrant to acquire shares of Company Common Stock or
other right or security convertible into or exercisable or
exchangeable for shares of Company Common Stock.
(b)
Stockholder has the legal capacity to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby.
(c)
This Agreement has been validly executed and
delivered by Stockholder and, assuming this Agreement constitutes a
valid and binding obligation of Parent and Merger
Sub, constitutes the valid and binding obligation of
Stockholder, enforceable against such Stockholder in accordance
with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors'
rights generally, and (ii) that the availability of the remedy of
specific performance or injunctive or other forms of equitable
relief may be subject to equitable defenses and would be subject to
the discretion of the court before which any proceeding therefor
may be brought.
(d)
Neither the execution and delivery of this Agreement
nor the consummation by Stockholder of the transactions
contemplated hereby will result in a violation of, or a default
under, or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to
which Stockholder is a party or by which Stockholder or
Stockholder's assets are bound. The consummation
by Stockholder of the transactions contemplated hereby will not (i)
violate any provision of any judgment, order or decree applicable
to Stockholder or (ii) to the knowledge of the
Stockholder, require any consent, approval, or notice under
any statute, law, rule or regulation applicable to Stockholder
other than (x) as required under the Exchange Act and the
rules and regulations promulgated thereunder and (y) where the
failure to obtain such consents or approvals or to make such
notifications, would not, individually or in the aggregate, prevent
or materially delay the performance by Stockholder of any of its
obligations under this Agreement.
(e)
The Shares and the certificates, if any, representing
the Shares owned by Stockholder are now, and at all times during
the term hereof will be, held by Stockholder, by a nominee or
custodian for the benefit of Stockholder or by the depository under
the Offer, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, options, rights (other than
community property interests), understandings or arrangements or
any other encumbrances or restrictions whatsoever on title,
transfer, or exercise of any rights of a shareholder in respect of
such Shares (collectively, " Encumbrances "), except for (i)
any such Encumbrances arising hereunder (in connection therewith
any restrictions on transfer or any other Encumbrances have been
waived by appropriate consent), (ii) any rights, agreements,
understandings or arrangements which represent a financial interest
in cash received upon sale of the Shares and (iii) Encumbrances
imposed by federal or state securities laws (collectively, "
Permitted Encumbrances ").
SECTION 2.
Representations and Warranties of Parent and Merger Sub
. Each of Parent and Merger Sub hereby, jointly and
severally, represents and warrants to Stockholder as follows:
(a)
Each of Parent and Merger Sub is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware, and each of Parent and the Merger Sub has
all requisite corporate power and authority to execute and deliver
this Agreement and the Merger Agreement and to consummate the
transactions contemplated hereby and thereby, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the Merger Agreement.
(b)
This Agreement and the Merger Agreement have been
duly authorized, executed and delivered by each of Parent and
Merger Sub, and constitute the valid and binding obligations of
each of Parent and Merger Sub, enforceable against each of them in
accordance with their terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors' rights
generally and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be
subject to equitable defenses and would be subject to the
discretion of the court before which any proceeding therefor may be
brought.
(c)
Neither the execution and delivery of this Agreement
or the Merger Agreement by each of Parent and Merger Sub nor the
consummation by Parent and Merger Sub of the transactions
contemplated hereby or thereby will result in a violation of, or a
default under, any contract, trust, commitment, agreement,
understanding, arrangement or restriction of any kind to which
either Parent or Merger Sub is a party or by which either Parent or
Merger Sub or their respective assets are bound. The
consummation by Parent and Merger Sub of the transactions
contemplated by this Agreement or the Merger Agreement will not
(i) violate any provision of any judgment, order or decree
applicable to Parent or Merger Sub or (ii) require any
consent, approval or notice under any statute, law, rule or
regulation applicable to either Parent or Merger Sub, other
than (x) filings under the Exchange Act and the rules and
regulations promulgated thereunder and (y) where the failure
to obtain such consents or approvals or to make such notifications,
would not, individually or in the aggregate, prevent or materially
delay the performance by either Parent or Merger Sub of any of
their obligations under this Agreement and the Merger
Agreement.
SECTION 3.
Tender of the Shares .
(a)
Stockholder hereby agrees that it shall irrevocably
tender (and deliver any certificates evidencing) its Shares, or
cause its Shares to be irrevocably tendered, into the Offer
promptly following, and in any event no later than the fifth
(5 th ) business day following the commencement of the
Offer pursuant to Section 1.1 of the Merger Agreement in accordance
with the procedures set forth in the Offer Documents, free and
clear of all Encumbrances (other than Permitted Encumbrances);
provided that Parent and Merger Sub agree that
Stockholder may withdraw its Shares from the Offer at any time
following the termination of this Agreement or as otherwise
provided pursuant to Section 9 hereof; and further provided that
Stockholder shall not be required, for purposes of this Agreement,
to exercise any unexercised Company Options held by
Stockholder.
(b)
If the Offer is terminated or withdrawn by Merger
Sub, or the Merger Agreement is terminated prior to the purchase of
Shares in the Offer, Parent and Merger Sub shall promptly return,
and shall cause any depository or paying agent, including the
Paying Agent, acting on behalf of Parent and Merger Sub, to return
all tendered Shares to the Stockholder.
SECTION 4.
Transfer of the Shares; Other Actions .
(a)
Prior to the termination of this Agreement, except as
otherwise provided herein (including pursuant to Section 3 or
Section 5) or in the Merger Agreement, Stockholder shall not, and
shall cause each of its subsidiaries not to: (i) transfer, assign,
sell, gift-over, hedge, pledge or otherwise dispose (whether by
sale, liquidation, dissolution, dividend or distribution) of, enter
into any derivative arrangement with respect to, create or suffer
to exist any Encumbrances (other than Permitted Encumbrances) on or
consent to any of the foregoing (" Transfer "), any or all
of the Shares or any right or interest therein; (ii) enter into any
contract, option or other agreement, arrangement or understanding
with respect to any Transfer; (iii) grant any proxy,
power-of-attorney or other authorization or consent with respect to
any of the Shares with respect to any matter that is, or that is
reasonably likely to be exercised in a manner, inconsistent with
the transactions contemplated by the Merger Agreement or the
provisions thereof; (iv) deposit any of the Shares into a voting
trust, or enter into a voting agreement or arrangement with respect
to any of the Shares; or (v) knowingly, directly or indirectly,
take or cause the taking of any other action that would restrict,
limit or interfere with the performance of such Stockholder's
obligations hereunder or the transactions contemplated hereby,
excluding any bankruptcy filing.
(b)
Notwithstanding the foregoing, Stockholder may make
(a) Transfers of Shares by will or by operation of law or other
transfers for estate planning purposes, in which case any such
transferee shall agree in writing to be bound by this Agreement
prior to the consummation of any such Transfer, (b) with respect to
such Stockholder’s Company Options which expire on or prior
to the Termination Date, to the extent permitted by the Company
Stock Plans, Transfers of Shares to the Company as payment for
the (I) exercise price of such Stockholder’s Company Options
and (II) taxes applicable to the exercise of such
Stockholder’s Company Options, and (c) as Parent may
otherwise agree in writing in its sole discretion.
(c)
Upon receipt of payment in full for all of its Shares
pursuant to the Me
