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Exhibit 10.1
VOTING AGREEMENT
VOTING AGREEMENT (this " Agreement "), dated as of
December 11, 2006, by and among Indevus Pharmaceuticals, Inc.,
a Delaware corporation (" Parent "), Hayden Merger Sub,
Inc., a Delaware corporation and a wholly-owned subsidiary of
Parent (" Merger Sub "), and the stockholder party hereto
(the " Stockholder ").
WITNESSETH:
WHEREAS, concurrently with the execution and delivery of this
Agreement, an Agreement and Plan of Merger (as such agreement may
be amended from time to time, the " Merger Agreement ") is
being entered into by and among Parent, Merger Sub and Valera
Pharmaceuticals, Inc., a Delaware corporation (the " Company
"), pursuant to which Merger Sub has agreed to merge with and into
the Company, with the Company continuing as the surviving
corporation (the " Merger "); and
WHEREAS, as a condition to, and in consideration for,
Parent’s and Merger Sub’s willingness to enter into the
Merger Agreement and to consummate the transactions contemplated
thereby, Parent and Merger Sub have required that the Stockholder
enter into this Agreement and certain other stockholders to enter
into similar agreements.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Definitions . For purposes of this Agreement:
" Company Securities " shall mean the Company’s
common stock, par value $0.001 per share.
" Person " shall mean an individual, corporation,
partnership, limited liability company, joint venture, association,
trust, unincorporated organization or other entity.
" Stockholder Shares " shall mean (i) the Existing
Securities (as defined in Section 5(a)(i) hereof) set forth on
Schedule I hereto, (ii) any shares of Company Securities
distributed prior to the termination of this Agreement in respect
of the Stockholder Shares by reason of a stock dividend, split-up,
recapitalization, reclassification, combination, merger, exchange
of
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shares or otherwise and (iii) any other
shares of the Company Securities of which the Stockholder acquires
ownership, either directly or indirectly, after the date of this
Agreement and prior to the Effective Time.
" Voting Agreement Stockholders " shall mean certain
affiliated funds of Sanders Morris Harris, Inc. and Psilos Group
Partners II-S, L.P.
Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to them in the Merger Agreement.
2. Agreement to Vote Shares .
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(a) The Stockholder shall, at any meeting of the holders of any
class or classes of Company Securities, however such meeting is
called and regardless of whether such meeting is a special or
annual meeting of the stockholders of the Company, or in connection
with any written consent of the stockholders of the Company, vote
(or cause to be voted) the Stockholder Shares, (i) in favor of
the Merger, the execution and delivery by the Company of the Merger
Agreement and the approval of the terms thereof and each of the
other actions contemplated by the Merger Agreement and this
Agreement and any actions required in furtherance thereof and
hereof, (ii) against any action, proposal or transaction or
agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or
agreement of the Company contained in the Merger Agreement or of
any stockholder contained in this Agreement and (iii) against
the following actions or proposals (other than the Merger and the
transactions contemplated by the Merger Agreement): (A) any
Takeover Proposal; (B) any extraordinary corporate
transaction, such as a merger, consolidation or other business
combination involving the Company; (C) a sale, lease or
transfer of a material amount of assets of the Company or a
reorganization, recapitalization, dissolution or liquidation of the
Company; (D) (I) any change in the majority of the
Company Board; (II) any material change in the present
capitalization of the Company or any amendment of the Company
Organizational Documents or similar governing document of the
Company; (III) any other material change in the corporate structure
or business of the Company; or (IV) any other action or proposal,
which in the case of matters referred to in clauses (I), (II) or
(III) above, is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, discourage or adversely
affect the contemplated economic benefits to Parent or Merger Sub
of the Merger or the transactions contemplated by the Merger
Agreement or this Agreement or could reasonably be expected to
result in any of the conditions to the Company’s obligations
under the Merger Agreement not being fulfilled. Each Stockholder
agrees not to, and shall cause its Affiliates not to, enter into
any agreement, commitment or arrangement with any Person the effect
of which would be inconsistent with or violative of the provisions
and agreements contained in this Section 2.
(b) The Stockholder agrees that the obligations of the
Stockholder specified in this Section 2 shall not be affected
by (i) any Company Adverse Recommendation
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Change, or (ii) any breach by the Company of
any of its representations, warranties, agreements or covenants set
forth in the Merger Agreement; provided, however, that, in the
event of a Company Adverse Recommendation Change, the obligation of
the Stockholder to vote the Stockholder Shares in the manner set
forth in Section 2(a) shall only apply to one half of the
total number of Stockholder Shares which are entitled to vote in
respect of such matter and the Stockholder shall cause the
remaining Stockholder Shares to be voted in a manner that is
proportionate to the manner in which all holders of Company
Securities (other than the Voting Agreement Stockholders) vote in
respect of such matter.
3. Grant of Irrevocable Proxy; Appointment of Proxy .
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(a) The Stockholder hereby irrevocably grants to, and appoints
Parent and any designee of Parent, the Stockholder’s proxy
and attorney-in-fact (with full power of substitution or
resubstitution), for and in the name, place and stead of the
Stockholder, to vote (or cause to be voted) or act by written
consent the Stockholder Shares held at the time of the relevant
stockholder vote as set forth in Section 2 hereof. The
Stockholder will cause any record holder of Stockholder Shares to
grant substantially similar proxies as requested in accordance with
Section 8(e) hereof.
(b) The Stockholder represents that any proxies heretofore given
in respect of the Stockholder Shares are not irrevocable, and that
any such proxies are hereby revoked.
(c) The Stockholder understands and acknowledges that Parent and
Merger Sub are entering into the Merger Agreement in reliance upon
the Stockholder’s execution and delivery of this Agreement.
The Stockholder hereby affirms that the irrevocable proxy set forth
in this Section 3 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 the Stockholder under this
Agreement. The Stockholder hereby further affirms that the
irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of
Section 212(e) of the Delaware General Corporation Law (the "
DGCL "). The power of attorney granted by each Shareholder
herein is a durable power of attorney and shall survive the
dissolution, bankruptcy, death or incapacity of such Shareholder.
The proxy and power of attorney granted hereunder shall terminate
upon the termination of this Agreement.
4. Covenants of the Stockholders . The Stockholder hereby
agrees and covenants that:
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(a) Restrictions . Except as may otherwise be agreed by
Parent in writing and as contemplated by the terms of this
Agreement, the Stockholder shall not (i) offer for sale, sell
(including short sales), transfer, tender, pledge, encumber, assign
or otherwise
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dispose of (including by gift) (collectively, a "
Transfer "), or enter into any contract, option, derivative,
hedging or other agreement or arrangement or understanding
(including any profit-sharing arrangement) with respect to, or
consent to, a Transfer of, any or all of the Stockholder Shares or
(ii) permit to exist any lien of any nature whatsoever with
respect to any or all of the Subject Shares.
(b) Restrictions on Proxies and Voting Arrangements .
Except as otherwise provided herein, the Stockholder shall not
(i) grant any proxy, power-of-attorney or other authorization
in or with respect to the Stockholder Shares or (ii) deposit
the Stockholder Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Stockholder
Shares.
(c) Stop Transfer . The Stockholder shall not request
that the Company register the transfer (book-entry or otherwise) of
any certificate or uncertificated interest representing any of the
Stockholder’s Existing Securities (as defined in
Section 6(a)(i) hereof), unless such transfer is made in
compliance with this Agreement. In the event of any dividend or
distribution, or any change in the capital structure of the Company
by reason of any non-cash dividend, split-up, recapitalization,
combination, exchange of securities or the like, the term "Existing
Securities" shall refer to and include the Existing Securities as
well as all such dividends and distributions of securities and any
securities into which or for which any or all of the Existing
Securities may be changed, exchanged or converted.
(d) Waiver of Appraisal Rights . The Stockholder agrees
not to seek appraisal or assert any rights of dissent from the
Merger that it may have under Section 262 of the DGCL and, to
the extent permitted by applicable Law, the Stockholder hereby
waives any rights of appraisal or rights to dissent from the Merger
that it may have under Section 262 of the DGCL.
(e) No Inconsistent Arrangements . The Stockholder shall
not take any other action that would in any way restrict, limit or
interfere with the performance of the Stockholder’s
obligations hereunder or the transactions contemplated hereby or by
the Merger Agreement.
5. Representations and Warranties .
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" Existing Securities "), and the Existing
Securities are owned of record by the Stockholder or certain of the
Stockholder’s subsidiaries or nominees (together, the "
Record Holders "). On the date hereof, the Existing
Securities constitute all of the shares of voting capital stock of
the Company owned of record or otherwise by such Stockholder or as
to which such Stockholder has the power to direct the voting of the
shares. Each Record Holder has sole voting power and sole power to
issue instructions with respect to the matters set forth in
Section 2 hereof, sole power of disposition, sole power of
conversion, sole power (if any) to demand appraisal rights and sole
power to agree to all of the matters set forth in this Agreement,
in each case with respect to all of such Record Holder’s
Existing Securities with no limitations, qualifications or
restrictions on such rights, subject to applicable securities laws
and the terms of this Agreement.
(ii) Power; Binding Agreement . The Stockholder has the
power (or, if applicable, corporate power) and authority to enter
into and perform all of the Stockholder’s obligations under
this Agreement. The execution, delivery and performance of this
Agreement by the Stockholder will not violate any other agreement
to which the Stockholder is a party including, without limitation,
any voting agreement, proxy arrangement, pledge agreement,
shareholders agreement, voting trust or trust agreement. This
Agreement has been duly and validly executed and delivered by the
Stockholder and constitutes a valid and binding agreement of the
Stockholder, enforceable against the Stockholder in accordance with
its terms, except as the enforceability thereof may be limited by
(A) applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect that affect the
enforcement of creditors rights generally or (B) general
principles of equity, whether considered in a proceeding at law or
in equity. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which the Stockholder
is a trustee whose consent is required for the execution and
delivery of this Agreement or the compliance by the Stockholder
with the terms hereof.
(iii) No Conflicts . No filing with, and no permit,
authorization, consent or approval of, any Governmental Entity is
required for the execution of this Agreement by the Stockholder and
the consummation by the Stockholder of the transactions
contemplated hereby, except in connection, or in compliance, with
the provisions of (A) Section 16 and Section 13D or
13G of the Exchange Act and (B) the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the " HSR
Act "), none of the execution and delivery of this Agreement by
the Stockholder, the consummation by the Stockholder of the
transactions con
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