Exhibit 10.6
VOTING AGREEMENT
This VOTING AGREEMENT (this “
Agreement ”), is made and entered into on and as of
August , 2009, by and between Ligand
Pharmaceuticals Incorporated, a Delaware corporation (“
Parent ”), and the undersigned stockholder (“
Stockholder ”) of Neurogen Corporation, a Delaware
corporation (the “ Company ”).
RECITALS
A. Concurrently with the
execution of this Agreement, Parent, Neon Signal, LLC, a Delaware
limited liability company and a wholly owned subsidiary of Parent
(“ Merger Sub ”), and the Company are entering
into an Agreement and Plan of Merger (the “ Merger
Agreement ”), pursuant to which Merger Sub will be merged
with and into the Company (the “ Merger ”).
Capitalized terms used but not defined herein shall have the
meanings given to them in the Merger Agreement.
B. As of the date hereof,
Stockholder is the direct, indirect and/or beneficial owner of
certain shares of Company common stock as is indicated on the
signature pages to this Agreement.
C. As a material inducement to
enter into the Merger Agreement, Parent desires Stockholder to
agree, and Stockholder is willing to agree, to vote the Shares (as
defined in Section 1.1 below), and such other shares of
common stock of the Company over which Stockholder has voting
power, on the terms and subject to the conditions set forth in this
Agreement.
In consideration of the foregoing
and the representations, warranties, covenants and agreements set
forth in this Agreement, the parties agree as follows:
1. Voting of Shares
.
1.1 Shares . The term “
Shares ” shall mean all issued and outstanding Company
Shares owned of record and/or beneficially owned (as defined in
Rule 13d-3 under the Exchange Act of 1934, as amended (
“ Rule 13d-3 ”)) by Stockholder or over
which Stockholder exercises sole voting power, in each case, as of
the date of this Agreement; provided, however, Shares does not
include any Company-issued options or warrants to purchase or
rights to subscribe for or otherwise acquire any securities of the
Company (the “ Options and Warrants ”) owned of
record and/or beneficially owned by Stockholder or over which
Stockholder exercises voting power. Stockholder agrees that any
shares of common stock of the Company that Stockholder purchases or
with respect to which Stockholder otherwise acquires beneficial
ownership after the date of this Agreement and before the
termination of this Agreement pursuant to Section 5
below shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Shares as of
the date hereof.
1.2 Agreement to Vote Shares
. Stockholder hereby covenants and agrees that during the period
commencing on the date hereof and continuing until this Agreement
terminates pursuant to Section 5 hereof, at any meeting
(whether annual or special and whether or not an adjourned or
postponed meeting) of the stockholders of the Company, however
called, and in any action by written consent of the stockholders of
the Company, Stockholder shall appear at the meeting or otherwise
cause any and all Shares to be counted as present thereat for
purposes of establishing a quorum and vote (or cause to be voted)
any and all Shares: (i) in favor of the approval of the Merger
and adoption of the Merger Agreement; (ii) against any
Acquisition Proposal or Superior Proposal; and (iii) against
any proposal or transaction which would reasonably be expected to
prevent or delay the consummation of the Merger or the Merger
Agreement. Stockholder further agrees not to enter into any
agreement or understanding with any person or entity the effect of
which would be materially inconsistent with or violative of any
provision contained in this Section 1.2 .
Notwithstanding anything to the contrary contained herein, nothing
in this Agreement shall be construed to limit or restrict the
Stockholder or any designee, employee, representative or affiliate
of the Stockholder who is a director or officer of the Company or
any subsidiary of the Company from acting in such person’s
capacity as a director or officer of the Company or any subsidiary
of the Company or voting in Stockholder’s sole discretion on
any matter other than those matters referred to in the first
sentence of this Section 1.2 . Stockholder hereby
waives, and agrees not to assert or perfect, any dissenters’
rights or any similar rights that it may have by virtue of
ownership of the Shares.
1.3 Irrevocable Proxy .
Concurrently with the execution of this Agreement, Stockholder
agrees to deliver to Parent a proxy in the form attached hereto as
Exhibit A (the “ Proxy ”), which
shall be irrevocable, with respect to the Shares, subject to the
other terms of this Agreement.
1.4 Adjustments Upon Changes in
Capitalization . In the event of any change in the number of
issued and outstanding Company Shares by reason of any stock split,
reverse split, stock dividend (including any dividend or
distribution of securities convertible into Company Shares),
combination, reorganization, recapitalization or other like change,
conversion or exchange of shares, or any other change in the
corporate or capital structure of the Company, the term “
Shares ” shall be deemed to refer to and include the
Shares as well as all such stock dividends and distributions and
any shares into which or for which any or all of the Shares may be
changed or exchanged.
2. Transfer and Other
Restrictions . Stockholder represents, covenants and agrees
that, except for the proxy granted in Section 1.3
hereof and as contemplated by this Agreement: (i) Stockholder
shall not, directly or indirectly, during the period commencing on
the date hereof and continuing until this Agreement terminates
pursuant to Section 5 hereof, offer for sale or agree
to sell, transfer, tender, assign, pledge, hypothecate or otherwise
dispose of or enter into any contract, option or other arrangement
or understanding with respect to, or consent to, the offer for
sale, sale, transfer, tender, pledge, hypothecation, encumbrance,
assignment or other disposition of, or create any Encumbrance of
any nature whatsoever with respect to, any or all of the Shares or
any interest therein; (ii) Stockholder shall not grant any
proxy or power of attorney, or deposit any Shares into a voting
trust or enter into a voting agreement or other arrangement, with
respect to the voting of Shares (each a “ Voting Proxy
”) except as provided by this Agreement; and
(iii) Stockholder has not granted, entered into or otherwise
created any Voting Proxy which is currently (or which will
hereafter become) effective, and if any Voting Proxy has been
created, such Voting Proxy is hereby revoked. Notwithstanding the
foregoing, Stockholder may transfer or otherwise dispose of any
Shares (A) in open market resale transactions (e.g. in a
transaction in which there have been no discussions, agreements or
understandings between the seller and the buyer or their respective
agents or representatives and in connection with which no
solicitation of buyers or offers to buy has occurred) with respect
to resales of any Company Shares, and (B) as a bona fide gift
or gifts, provided that it shall be a condition to such transfer
that each donee thereof executes and delivers to Parent (1) an
agreement with Parent in the form of this Agreement and (2) an
irrevocable proxy in the form attached hereto as
Exhibit A , in each case with respect to any and all
Shares so transferred.
3. Representations and
Warranties of Stockholder . Stockholder represents and warrants
to Parent that:
3.1 Authority; Validity .
Stockholder has all requisite capacity, power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement
by Stockholder and the consummation by Stockholder of the
transactions contemplated hereby have been duly and validly
authorized by all necessary action on the part of Stockholder. This
Agreement has been duly executed and delivered by Stockholder. If
this Agreement is being executed in a representative or fiduciary
capacity with respect to Stockholder, the person signing this
Agreement has full power and authority to enter into and perform
this Agreement.
3.2 Non-Contravention . The
execution, delivery and performance of this Agreement does not, and
the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, contravene,
conflict with, or result in any violation of, breach of or default
by (with or without notice or lapse of time, or both) Stockholder
under, or give rise to a right of termination, cancellation or
acceleration of any obligation under, or result in the creation of
any Encumbrance upon any of the properties or assets of Stockholder
under, any provision of (i) any loan or credit agreement,
note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to
Stockholder or (ii) any judgment, order, decree, statute, law,
ordinance, injunction, rule or regulation applicable to Stockholder
or any of Stockholder’s properties or assets, other than any
such conflicts, violations, defaults, rights, or Encumbrances that,
individually or in the aggregate, would not impair the ability of
Stockholder to perform Stockholder’s obligations hereunder or
prevent, limit or restrict in any respect the consummation of any
of the transactions contemplated hereby. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust
of which
- 2 -
Stockholder is settlor or trustee or any other
person or entity, including any Governmental Entity, whose consent,
approval, order or authorization is required by or with respect to
Stockholder for the execution, delivery and performance of this
Agreement by Stockholder or the consummation by Stockholder of the
transactions contemplated hereby.
3.3 Litigation . As of the
date hereof, there is no action pending, or to the knowledge of
Stockholder, threatened with respect to his ownership of the
Shares, nor is there any judgment, decree, injunction or order of
any applicable Governmental Entity or arbitrator outstanding which
would prevent the carrying out by Stockholder of his obligations
under this Agreement or any of the transactions contemplated
hereby, declare unlawful the transactions contemplated hereby or
cause such transactions to be rescinded.
3.4 Title . As of the date
hereof, Stockholder is the beneficial owner (as defined in
Rule 13d-3) of the Shares of indicated on the signature pages
hereto, which, on and as of the date hereof, are free and clear of
any Encumbrances that, individually or in the aggregate, would
impair the ability of Stockholder to perform Stockholder’s
obligations hereunder or prevent, limit or restrict in any respect
the consummation of any of the transactions contemplated hereby. As
of the date hereof, the number of Shares, Options and Warrants set
forth on the signature pages hereto are the only Shares or options
or warrants to purchase or rights to subscribe for or otherwise
acquire any securities of the Company owned of record or
beneficially owned (as defined in Rule 13d-3) by Stockholder
or over which Stockholder exercises sole voting power and, except
as set forth on such signature pages, Stockholder holds no options
or warrants to purchase or rights to subscribe for or otherwise
acquire any securities of the Company and has no other interest in
or voting rights with respect to any securities of the
Company.
3.5 Power . Stockholder has
sole voting power and sole power to issue instructions with respect
to the matters set forth in Section 1 and
Section 2 hereof and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to
all of the Shares, with no limitations, qualifications or
restrictions on such rights.
4. Representations and
Warranties of Parent . Parent represents and warrants to
Stockholder that:
4.1 Authority; Validity .
Parent has all requisite capacity, power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Parent and
the consummation by Parent of the transactions contemplated hereby
have been duly and validly authorized by all necessary action on
the part of Parent. This Agreement has been duly executed and
delivered by Parent. If this Agreement is being executed in a
representative or fiduciary capacity with respect to Parent, the
person signing this Agreement has full power and authority to enter
into and perform this Agreement.
4.2 Non-Contravention . The
execution, delivery and performance of this Agreement does not, and
the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, (a) require
Parent to obtain the consent or approval or, or make any filing
with or notification to, any governmental or regulatory authority,
domestic or foreign, (b) require the co
