This VOTING
AGREEMENT , dated as of May 6, 2009 (this “
Agreement ”), is by and among CHIESI FARMACEUTICI SPA,
a corporation organized under the laws of Italy (“
Purchaser ”), each of the holders of shares of common
stock, par value $0.001 per share (the “ Common Stock
”), of Cornerstone Therapeutics Inc., a Delaware corporation
(the “ Company ”), listed on
Schedule A hereto (collectively, the “
Stockholders ”), and the Company (solely with respect
to Section 2(b) ). 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;
WHEREAS ,
each Stockholder is the record and beneficial owner of the number
of shares of the Common Stock (the “ Shares ”)
set forth opposite such Stockholder’s name on Schedule
A hereto; such Shares, as they may be adjusted by stock
dividend, stock split, recapitalization, combination or exchange of
shares, merger, consolidation, reorganization or other change or
transaction of or by the Company, together with all additional
Shares that may be acquired after the date hereof by such
Stockholder (beneficially or of record), including Shares issuable
upon the exercise of options to purchase Shares (as the same may be
adjusted as aforesaid), being also referred to herein as
“Shares”; and
WHEREAS ,
as a condition to the willingness of Purchaser to enter into the
Company Stock Purchase Agreement, Purchaser has required that the
Stockholders enter into this Agreement;
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 Shares
.
(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 as the result of the death of
such Stockholder or as otherwise permitted by this Agreement,
Transfer any of the Shares unless the person to which such Shares
are being Transferred shall have executed and delivered a
counterpart of this Agreement and agreed pursuant thereto, for the
benefit of Purchaser, to hold such Shares subject to all terms and
conditions of this Agreement.
(b) Each
Stockholder understands and agrees that if, while this Agreement is
in effect, such Stockholder attempts to Transfer, vote or provide
any other person with the authority to vote any of the Shares other
than in compliance with this Agreement, the Company shall not, and
the Stockholder 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 Shares or (iii) record such vote, in each case, unless and
until such Stockholder 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, each
Stockholder will not commit any act that could restrict or affect
such Stockholder’s legal power, authority and right to vote
all of the Shares then owned of record or beneficially by such
Stockholder or otherwise prevent or disable such Stockholder from
performing any of his, her or its obligations under this Agreement.
Without limiting the generality of the foregoing, except for this
Agreement and as otherwise permitted by this Agreement, each
Stockholder will not enter into any voting agreement with any
person or entity with respect to any of the Shares, grant any
person or entity any proxy (revocable or irrevocable) or power of
attorney with respect to any of the Shares, deposit any of the
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 the
Shares in favor of the approval of the Company Stock Sale or the
Charter Amendment.
Section 3.
Voting of Shares .
(a) Each
Stockholder covenants and agrees that at every meeting of the
stockholders of the Company, however called, and at any adjournment
or postponement thereof, such Stockholder shall cause its 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 Shares owned by
such Stockholder to vote (i) in favor of the approval of the
Company Stock Sale, the approval and adoption of the Charter
Amendment and all actions in furtherance thereof and contemplated
thereby (the “ Proposed Transactions ”),
(ii) against the approval or adoption of any proposal made in
opposition to, or in competition with, the Proposed Transactions,
and (iii) against any of the following (to the extent unrelated to
the Proposed Transactions): (A) any merger, consolidation or
business combination involving the Company or any of its
subsidiaries other than the Proposed Transactions; (B) any
sale, lease or transfer of all or substantially all of the assets
of the Company or any of its subsidiaries; (C) any
reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any of its subsidiaries that is
prohibited by the Company Stock Purchase Agreement; or (D) any
other action that is a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under
the Company Stock Purchase Agreement or of such Stockholder under
this Agreement (each of (ii) and (iii), a “ Competing
Transaction ”). Each Stockholder agrees not to commit or
agree to take, or permit, any action inconsistent with the
foregoing.
2
(b) If
such 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 Section 3(a)
.
Section 4.
Grant of Irrevocable Proxy .
(a) Except
as set forth in Section 4(f) hereof, each Stockholder
hereby irrevocably (to the fullest extent permitted by law) grants
to, and appoints, Purchaser and each of its executive officers and
any of them, in their capacities as officers of Purchaser (the
“ Grantees ”), as such 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 the Shares, 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 the 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 Company Stock Purchase 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. Each Stockholder 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.
(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.
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