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Exhibit
10.2
STOCKHOLDER VOTING
AGREEMENT
T HIS S
TOCKHOLDER V OTING A
GREEMENT (this “ Agreement ”)
is made and entered into as of July 15, 2008, by and among
V IRO P HARMA I
NCORPORATED , a Delaware corporation (“
Buyer ”), L EV P
HARMACEUTICALS , I NC . , a
Delaware corporation (“ Target ”), and the
undersigned stockholders (each, a “ Stockholder
” and, collectively, the “ Stockholders ”)
of Target.
Preamble
Concurrently with the
execution and delivery hereof, Buyer, HAE A
CQUISITION C ORP ., a Delaware
corporation (“ Sub ”), and Target are entering
into an Agreement and Plan of Merger of even date herewith (as it
may be amended or supplemented from time to time pursuant to the
terms thereof, the “ Merger Agreement ”), which
provides for the merger (the “ Merger ”) of Sub
with and into Target in accordance with its terms.
Each stockholder is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act)
of such number of shares of each class of capital stock of Target
as is indicated on the signature page of this Agreement.
In consideration of the
execution and delivery of the Merger Agreement by Buyer and Sub,
Stockholders desire to agree to vote the Shares (as defined herein)
over which Stockholder has voting power so as to facilitate the
consummation of the Merger, as further provided herein.
NOW, THEREFORE, intending to
be legally bound, the parties hereto hereby agree as
follows:
1. Certain Definitions
.
(a) Capitalized terms used
but not otherwise defined herein shall have the meanings ascribed
thereto in the Merger Agreement. For all purposes of and under this
Agreement, the following terms shall have the following respective
meanings:
“ Constructive
Sale ” means with respect to any security a short sale
with respect to such security, entering into or acquiring an
offsetting derivative contract with respect to such security,
entering into or acquiring a futures or forward contract to deliver
such security or entering into any other hedging or other
derivative transaction that has the effect of either directly or
indirectly materially changing the economic benefits and risks of
ownership.
“ Shares ”
means, with respect to any Stockholder, (i) all shares of
capital stock of Target owned, beneficially or of record, by each
Stockholder as of the date hereof, and (ii) all additional
shares of capital stock of Target acquired by Stockholder,
beneficially or of record, during the period commencing with the
execution and delivery of this Agreement and expiring on the
Expiration Date (as such term is defined in Section 12
below).
“ Transfer
” means, with respect to any security, the direct or indirect
assignment, sale, transfer, tender, exchange, pledge,
hypothecation, or the grant, creation or suffrage of a lien,
security interest or encumbrance in or upon, or the gift, placement
in trust, or the Constructive Sale or other disposition of such
security (including transfers by testamentary or intestate
succession or otherwise by operation of law) or any right, title or
interest therein (including, but not limited to, any right or power
to vote to which the holder thereof may be entitled, whether such
right or power is granted by proxy or otherwise), or the record or
beneficial ownership
thereof, the offer to make
such a sale, transfer, Constructive Sale or other disposition, and
each agreement, arrangement or understanding, whether or not in
writing, to effect any of the foregoing.
2. Transfer and Voting
Restrictions .
(a) At all times during the
period commencing with the execution and delivery of this Agreement
and expiring on the Expiration Date, each Stockholder shall not,
except in connection with the Merger or as the result of the death
of such Stockholder, Transfer any of the Shares owned by such
Stockholder, or discuss, negotiate, make an offer or enter into an
agreement, commitment or other arrangement with respect
thereto.
(b) Each Stockholder
understands and agrees that if such Stockholder attempts to
Transfer, vote or provide any other person with the authority to
vote any of the Shares owned by such Stockholder other than in
compliance with this Agreement, Target shall not, and each
Stockholder hereby unconditionally and irrevocably instructs Target
not to, (i) permit any such Transfer on its books and records,
(ii) issue a new certificate representing any of the Shares
owned by such Stockholder or (iii) record such vote unless and
until such Stockholder shall have complied with the terms of this
Agreement.
(c) From and after the date
hereof, except as otherwise permitted by this Agreement or by order
of a court of competent jurisdiction, each Stockholder will not
commit any act that would restrict his legal power, authority and
right to vote all of the Shares then owned of record or
beneficially by him or otherwise prevent or disable such
Stockholder from performing any of his obligations under this
Agreement. Without limiting the generality of the foregoing, except
for this Agreement and as otherwise permitted by this Agreement,
from and after the date hereof, each Stockholder will not enter
into any voting agreement with any person or entity with respect to
any of the Shares owned by such Stockholder, grant any person or
entity any proxy (revocable or irrevocable) or power of attorney
with respect to any of such Shares, deposit any of such Shares in a
voting trust or otherwise enter into any agreement or arrangement
with any person or entity limiting or affecting such
Stockholder’s legal power, authority or right to vote such
Shares in favor of the approval of the Proposed
Transaction.
(d) Notwithstanding anything
in this Agreement to the contrary, any Stockholder may Transfer any
Shares owned by such Stockholder to any member of such
Stockholder’s immediate family, to a charity or charitable
foundation or to a trust for the benefit of such Stockholder or any
member of such Stockholder; provided , however , that
such a Transfer 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 terms of this Agreement as though such
transferee were a Stockholder hereunder; provided, further ,
that (i) Judson Cooper and his Affiliates who are a party to
this Agreement may Transfer up to an aggregate of 2 million
Shares and (ii) Joshua Schein and his Affiliates who are a
party to this Agreement may Transfer up to an aggregate of
2 million Shares, in each case, to a charity or charitable
foundation without compliance with the preceding proviso;
provided , finally , that such Transfer to a charity
or charitable foundation pursuant to the preceding proviso shall be
permitted only if, as a condition precedent to such Transfer,
another stockholder of Target who is not a party hereto (an “
Additional Stockholder ”) agrees in a writing that is
reasonably satisfactory in form and substance to Buyer to be bound
by all terms of this Agreement (with respect to at least as many
shares of capital stock of Target as are Transferred pursuant to
the preceding proviso) as though such Additional Stockholder were a
Stockholder hereunder.
3. Agreement to Vote
Shares .
(a) Prior to the Expiration
Date, at every meeting of the stockholders of Target called, and at
every adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of Target, each
Stockholder (solely in Stockholder’s capacity as such)
shall
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appear at the meeting or otherwise cause
the Shares owned by such Stockholder to be present thereat for
purposes of establishing a quorum and, to the extent not voted by
the persons appointed as proxies pursuant to this Agreement, vote
(i) in favor of approval of the Merger, the Merger Agreement
and the other transactions contemplated thereby (collectively, the
“ Proposed Transaction ”), (ii) against the
approval or adoption of any proposal made in opposition to, or in
competition with, the Proposed Transaction, and (iii) against
any of the following (to the extent unrelated to the Proposed
Transaction): (A) any merger, consolidation or business
combination involving Target or any of its subsidiaries other than
the Proposed Transaction; (B) any sale, lease or transfer of
all or substantially all of the assets of Target or any of its
subsidiaries; (C) any reorganization, recapitalization,
dissolution, liquidation or winding up of Target or any of its
subsidiaries; or (D) any other action that is intended, or
would reasonably be expected to materially impede, interfere with,
delay, postpone, discourage or adversely affect the consummation of
the Proposed Transaction (each of (ii) and (iii), a “
Competing Transaction ”).
(b) If Stockholder is the
beneficial owner, but not the record holder, of the Shares, such
Stockholder agrees to take all actions necessary to cause the
record holder and any nominees to vote all of the Shares in
accordance with this Section 3.
4. Grant of Irrevocable
Proxy .
(a) Each Stockholder hereby
irrevocably (to the fullest extent permitted by law) grants to, and
appoints, Buyer and each of its executive officers and any of them,
in their capacities as officers of Buyer (the “
Grantees ”), each Stockholder’s proxy and
attorney-in-fact (with full power of substitution and
re-substitution), for and in the name, place and stead of such
Stockholder, to vote the Shares, to instruct nominees or record
holders to vote such Shares owned by such Stockholder, or grant a
consent or approval in respect of such Shares in accordance with
Section 3 hereof and, in the discretion of the Grantees with
respect to any proposed adjournments or postponements of any
meeting of stockholders at which any of the matters described in
Section 3 hereof is to be considered.
(b) Each Stockholder
represents that any proxies heretofore given in respect of
Stockholder’s shares that may still be in effect are not
irrevocable, and such proxies are hereby revoked.
(c) Each Stockholder hereby
affirms that the irrevocable proxy set forth in this Section 4
is given in connection with the execution of the Merger Agreement,
and that such irrevocable proxy is given to secure the performance
of the duties of such Stockholder under this Agreement. Each
Stockholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked,
except as otherwise provided in this Agreement. Such irrevocable
proxy is executed and intended to be irrevocable in accordance with
the provisions of Section 212 of the Delaware General
Corporation Law until termination of this Agreement.
(d) The Grantees may not
exercise this irrevocable proxy on any other matter except as
provided above. Each Stockholder may vote the Shares on all other
matters.
(e) Buyer may terminate this
proxy with respect to any Stockholder at any time at its sole
election by written notice provided to Stockholder.
5. No Solicitation .
Prior to the termination of this Agreement, each Stockholder,
solely in his capacity as a stockholder, shall not directly or
indirectly, (i) solicit, initiate or knowingly encourage,
induce or facilitate the making, submission or announcement of any
Acquisition Proposal or take any action that would reasonably be
expected to lead to an Acquisition Proposal, (ii) except as
Target may be permitted pursuant to the Merger Agreement, conduct
or engage in discussions or negotiations with any Person with
respect to any Acquisition Proposal, or disclose any non-public
information relating to Target
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or any of its Subsidiaries to any Person
in connection with or in response to an Acquisition Proposal or an
inquiry or indic
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