This VOTING
AGREEMENT , dated as of May 6, 2009 (this “
Agreement ”), is by and among CORNERSTONE THERAPEUTICS
INC., a Delaware corporation (the “ Company ”),
and CHIESI FARMACEUTICI SPA, a corporation organized under the laws
of Italy (“ Purchaser ”). Capitalized terms used
and not otherwise defined herein shall have the respective meanings
assigned to them in the Company Stock Purchase Agreement referred
to below.
WHEREAS ,
concurrently with the execution and delivery of this Agreement,
(i) Purchaser and two stockholders of the Company are entering
into a stock purchase agreement (the “ Initial Stock
Purchase Agreement ”), dated the same date as this
Agreement; and (ii) the Company and Purchaser are entering
into a stock purchase agreement (the “ Company Stock
Purchase Agreement ”), also dated the same date as this
Agreement; and
WHEREAS ,
following consummation of the transactions contemplated by of the
Initial Stock Purchase Agreement and the Company Stock Purchase
Agreement, Purchaser will own 13,502,741 shares of the
Company’s common stock, par value $0.001 per share (the
“ Common Stock ”) (the shares of Common Stock
owned from time to time, directly or indirectly, by Purchaser and
its affiliates are sometimes referred to in this Agreement as the
“ Purchaser Shares ”).
NOW,
THEREFORE , in consideration of the foregoing, intending to be
legally bound, the parties hereto hereby agree as
follows:
Section 1.
Certain Definitions . For purposes of this Agreement, the
following terms shall have the following 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 or risks of
ownership.
“
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.
Section 2.
Transfer and Voting Restrictions With Respect to the Purchaser
Shares .
(a) At
all times during the period commencing with the execution and
delivery of this Agreement and expiring on the Expiration Date (as
defined below), Purchaser shall not Transfer any of the Purchaser
Shares.
(b) Purchaser
understands and agrees that if, while this Agreement is in effect,
Purchaser attempts to Transfer, vote or provide any other person
with the authority to vote any of the Purchaser Shares other than
in compliance with this Agreement, the Company shall not, and
Purchaser hereby unconditionally and irrevocably instructs the
Company to not, (i) permit any such Transfer on its books and
records, (ii) issue a new certificate representing any of the
Purchaser Shares or (iii) record such vote, in each case,
unless and until Purchaser shall have complied with the terms of
this Agreement.
(c) Except
as otherwise permitted by this Agreement or by order of a court of
competent jurisdiction, while this Agreement is in effect,
Purchaser will not commit any act that could restrict or affect
Purchaser’s legal power, authority and right to vote all of
the Purchaser Shares then owned of record or beneficially by
Purchaser or otherwise prevent or disable Purchaser from performing
any of its obligations under this Agreement. Without limiting the
generality of the foregoing, except for this Agreement and as
otherwise permitted by this Agreement, Purchaser will not enter
into any voting agreement with any person or entity with respect to
any of the Purchaser Shares, grant any person or entity any proxy
(revocable or irrevocable) or power of attorney with respect to any
of the Purchaser Shares, deposit any of the Purchaser Shares in a
voting trust or otherwise enter into any agreement or arrangement
with any person or entity limiting or affecting Purchaser’s
legal power, authority or right to vote the Purchaser Shares in
favor of the approval of the Charter Amendment.
Section 3.
Voting of Purchaser Shares .
(a) Purchaser
covenants and agrees that at every meeting of the stockholders of
the Company, however called, and at any adjournment or postponement
thereof, Purchaser shall cause the Purchaser Shares to be counted
as present thereat for purposes of establishing a quorum and, to
the extent not voted by the persons appointed as proxies pursuant
to this Agreement, shall cause all of the Purchaser Shares to vote
in favor of the approval and adoption of the Charter Amendment and
all actions in furtherance thereof and contemplated thereby.
Purchaser agrees not to commit or agree to take, or permit, any
action inconsistent with the foregoing.
(b) If
Purchaser is the beneficial owner, but not the record holder, of
the Purchaser Shares, Purchaser agrees to take all actions
necessary to cause the record holder and any nominees to vote all
of the Purchaser Shares in accordance with Section 3(a)
.
Section 4.
Grant of Irrevocable Proxy .
(a) Except
as set forth in Section 4(f) hereof, Purchaser hereby
irrevocably (to the fullest extent permitted by law) grants to, and
appoints, the Company and each of its executive officers and any of
them, in their capacities as officers of the Company (the “
Grantees ”), as Purchaser’s proxy and
attorney-in-fact (with full power of substitution and
re-substitution), for and in the name, place and stead of
Purchaser, to vote the Purchaser Shares, to instruct nominees or
record holders to vote the Purchaser Shares, or grant a consent or
approval in respect of the Purchaser 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) Purchaser
represents that any proxies heretofore given in respect of the
Purchaser Shares that may still be in effect are not irrevocable,
and such proxies are hereby revoked.
2
(c) Purchaser
hereby affirms that the irrevocable proxy set forth in this
Section 4 is given in connection with the execution of
the Company Stock Purchase Agreement, and that such irrevocable
proxy is given to secure the performance of the duties of Purchaser
under this Agreement. Purchaser hereby further affirms that the
irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Purchaser hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done
by virtue hereof. Such irrevocable proxy is executed and intended
to be irrevocable in accordance with the provisions of
Section 212 of the General Corporation Law of the State of
Delaware.
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