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Exhibit 4.1
PARENT STOCKHOLDER VOTING AGREEMENT
This PARENT STOCKHOLDER VOTING AGREEMENT (the "AGREEMENT"), dated as of
this 29th day of June, 2001, is entered into by and among DURAMED
PHARMACEUTICALS, INC., a Delaware corporation (the "COMPANY"), and ▇▇▇▇▇▇▇
DELAWARE, INC., a Delaware corporation, a shareholder of ▇▇▇▇ LABORATORIES,
INC., a New York corporation ("STOCKHOLDER" and "PARENT" respectively).
W I T N E S S E T H:
WHEREAS, Parent, Beta Merger Sub I, Inc., a Delaware corporation ("MERGER
SUB"), and the Company have entered into an Agreement and Plan of Merger of even
date herewith (as the same may be amended from time to time, the "MERGER
AGREEMENT"), pursuant to which the parties thereto have agreed, upon the terms
and subject to the conditions set forth therein, to merge the Merger Sub with
and into the Company (the "MERGER");
WHEREAS, as of the date hereof, the Stockholder is the record or
Beneficial Owner (as defined below) of the number of shares (the "SHARES") of
common stock, par value $0.01 per share, of Parent (the "PARENT COMMON Stock"),
set forth next to the Stockholder's name on Part A of Schedule I hereto; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, the Company has required that the Stockholder agree, and the
Stockholder is willing to agree, to the matters set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements set
forth below, the parties hereto agree as follows:
1. Definitions. Capitalized terms not expressly defined in this
Agreement shall have the meanings ascribed to them in the Merger Agreement.
For purposes of this Agreement:
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having voting power with respect to such securities
(as determined pursuant to Rule 13d-3(a)(1) under the Exchange Act),
including pursuant to any agreement, arrangement or understanding, whether
or not in writing.
(b) "TERMINATION DATE" shall mean the date of the termination of the
Merger Agreement pursuant to the terms thereof.
2. Voting Agreement. From the date of this Agreement and ending on
the first to occur of the Effective Time or the Termination Date, the
Stockholder hereby agrees to vote (or cause to be voted) all of the
Stockholder's Shares (and any and all securities issued or issuable in
respect thereof) which the Stockholder is entitled to vote (or to provide
its written consent thereto), at any annual, special or other meeting of
the
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stockholders of Parent, and at any adjournment or adjournments thereof, or
pursuant to any consent in lieu of a meeting or otherwise in favor of the
issuance of the additional shares of Parent Common Stock as contemplated
by the Merger Agreement and any actions required in furtherance thereof.
3. Covenants, Representations and Warranties of the Stockholder and
The Company.
(a) The Stockholder hereby represents, warrants and covenants
to the Company as follows:
(i) Ownership. As of the date of this Agreement, the
Stockholder is the record and Beneficial Owner of, or (B) the
Beneficial Owner but not the record holder of, the number of issued
and outstanding Shares set forth next to the Stockholder's name on
Part A of Schedule I hereto. As of the date of this Agreement, the
Shares set forth next to the Stockholder's name on Part A of
Schedule I hereto constitute all of the issued and outstanding
Shares owned of record or Beneficially Owned by the Stockholder.
Except as otherwise set forth in Part A to Schedule I hereto, the
Stockholder has the sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the
Shares set forth next to the Stockholder's name on Part A of
Schedule I hereto, with no material limitations, qualifications or
restrictions on such rights, subject to applicable securities Laws
and the terms of this Agreement.
(ii) Organization; Standing and Corporate Power; Binding
Agreement. The Stockholder is a corporation duly organized, validly
existing and in good standing under the Laws of its jurisdiction of
organization, with full corporate power and authority to own its
properties and carry on its business as presently conducted. The
Stockholder has the power and authority to enter into and perform
all of the Stockholder's obligations under this 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 such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and by general equitable
principles (regardless of whether enforceability is considered in a
proceeding in equity or at law)).
(iii) No Encumbrances. Except as required by Section 2 hereof
or as provided for in that certain Pledge Agreement dated April 30,
1996 by and between the Stockholder and Bank of Montreal, as Agent,
at all times during the term hereof, all of the Shares will be held
by the Stockholder, or by a nominee or custodian for the benefit of
the Stockholder, or by a family member or Affiliate of the
Stockholder (subject to the conditions set forth in clause (v)
below) free and clear of all Liens.
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(iv) Restriction on Transfer, Proxies and Non-Interference.
Except as otherwise contemplated by the Merger Agreement or this
Agreement, from and after the date of this Agreement and ending on
the first to occur of the Effective Time or the Termination Date,
the Stockholder shall: (A) offer for sale, sell, transfer, tender,
pledge, encumber, assign 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,
encumbrance, assignment or other disposition of (each, a "TRANSFER")
any or all of the Shares, or any interest therein, (B) grant any
proxies or powers of attorney, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any Shares,
(C) enter into any agreement or arrangement providing for any of the
actions described in clause (A) or (B) above, or (D) take any action
that would reasonably be expected to have the effect of preventing
or disabling the Stockholder from performing the Stockholder's
obligations under this Agreement, only if transferees agree to be
bound by the terms of this Agreement.
(v) Litigation. There is no action pending, or to the
Knowledge of the Stockholder, threatened against or affecting the
Stockholder, nor is there any judgment, decree, injunction or order
of any applicable Governmental Entity or arbitrator outstanding
against the Stockholder which would prevent the carrying out of this
Agreement or the Merger Agreement or any of the transactions
contemplated hereby or thereby, declare unlawful the transactions
contemplated hereby or thereby or cause such transactions to be
rescinded.
(vi) Documents Received. The Stockholder acknowledges
receipt of a copy of the Merger Agreement, including all
schedules and exhibits thereto.
(vii) Further Assurances. From time to time, at the Company's
request and without further consideration, the Stockholder shall
execute and deliver such additional documents as may be necessary or
desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement
or the Merger Agreement.
(viii) Filings. As of the date of this Agreement, except as
may be required by the Exchange Act, no filing with, and no permit,
authorization, consent or approval of, any Governmental Authority is
necessary for the execution of this Agreement by the Stockholder and
the consummation by the Stockholder of the transactions contemplated
hereby, except where the failure to obtain such consent, permit,
authorization, approval or filing would not materially interfere
with the Stockholder's ability to perform the Stockholder's
obligations hereunder, and none of the execution and delivery of
this Agreement by the Stockholder, the consummation by the
Stockholder of the transactions contemplated hereby or compliance by
the Stockholder with any of the provisions hereof shall (A) result
in a violation or breach of, or constitute (with or without notice
or lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or
acceleration) under any of the
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terms, conditions or provisions of any material note, bond,
mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any
kind to which the Stockholder is a party or by which the Stockholder
or any of his properties or assets may be bound, or (B) violate any
Legal Provision applicable to the Stockholder or any of the Shares,
in each such case except to the extent that any conflict, breach,
default or violation would not interfere with the ability of the
Stockholder to perform his obligations hereunder.
(b) The Company hereby represents, warrants and covenants to
the Stockholder as follows:
(i) Organization, Standing and Corporate Power. The Company is
a corporation duly organized, validly existing and in good standing
under the Laws of its jurisdiction of organization, with full
corporate power and authority to own its properties and carry on its
business as presently conducted. The Company has the corporate power
and authority to enter into and perform all of its obligations under
this Agreement and to consummate the transactions contemplated
hereby.
(ii) No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any Governmental Entity is
necessary for the execution of this Agreement by either the Company
and the consummation by the Company of the transactions contemplated
hereby, except where the failure to obtain such consent, permit,
authorization, approval or filing would not interfere with its
ability to perform its obligations hereunder, and none of the
execution and delivery of this Agreement by the Company, the
consummation by the Company of the transactions contemplated hereby
or compliance by the Company with any of the provisions hereof shall
(A) conflict with or result in any breach of any applicable
organizational documents applicable to the Company, (B) result in a
violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or
obligation of any kind to which the Company is a party or by which
the Company or any of the Company's properties or assets may be
bound, (C) require any consent, approval, authorization or permit
of, registration, declaration or filing with, or notification to,
any Governmental Entity, (D) require any material consent,
authorization or approval of any Person, or (E) violate any Legal
Provision applicable to the Company or any of the Company's
properties or assets, in each such case except to the extent that
any conflict, breach, default or violation would not interfere with
the ability of the Company to perform its obligations hereunder.
(iii) Execution, Delivery and Performance by the Company. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by
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the Board of Directors of the Company, and the Company has taken all
other actions required by Law and its organizational documents to
consummate the transactions contemplated by this Agreement. This
Agreement constitutes the valid and binding obligations of the
Company and is enforceable in accordance with its terms, except as
enforceability may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar Laws relating to or
affecting creditors' rights generally (regardless of whether
enforceability is considered in a proceeding in equity or at Law).
4. Recapitalization. In the event of a stock dividend or distribution, or
any change in the Shares (or any class thereof) by reason of any split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall include, without limitation, all such stock dividends and distributions
and any shares into which or for which any or all of the Shares (or any class
thereof) may be changed or exchanged as may be appropriate to reflect such
event. The term "Shares" shall also include any shares of Parent Common Stock
acquired by any Stockholder after the date of this Agreement and before the
first to occur of the Effective Time or the Termination Date.
5. Stockholder Capacity. The Stockholder makes no agreement or
understanding herein in the capacity of a director or officer of Parent. The
Stockholder executes this Agreement solely in the Stockholder's capacity as a
record owner and/or Beneficial Owner of the Shares and nothing herein shall
limit or affect any actions taken by the Stockholder or any designee of the
Stockholder in the Stockholder's capacity, if any, as a director or officer of
Parent or any of its Subsidiaries; provided, however, that no such duty as a
director or officer of Parent shall excuse the Stockholder from his obligations
as the Stockholder to vote the Shares, to the extent that they may be so voted,
or otherwise perform any obligation as herein provided and to otherwise comply
with the terms and conditions of this Agreement.
6. Indemnification. The Company shall, to the fullest extent permitted
under applicable Law, indemnify and hold harmless the Stockholder against any
costs or expenses (including attorneys' fees as provided below), judgments,
fines, losses, claims, damages, liabilities and amounts paid in settlement in
connection with any claim, action, suit, proceeding or investigation by or on
behalf of Parent, the Surviving Corporation or any stockholder of Parent
asserting any breach by the Stockholder of any fiduciary duty on the
Stockholder's part to Parent, the Surviving Corporation or the other
stockholders of Parent by reason of the Stockholder entering into this
Agreement, for a period of two years after the date hereof. If the Stockholder
seeks indemnification from the Company for any such claim, action, suit,
proceeding or investigation (whether arising before or after the termination of
this Agreement), (a) the Company shall pay the fees and expenses of one counsel
selected by the Stockholder and reasonably acceptable to the Company to
represent the Stockholder in connection therewith promptly after statements
therefor are received, and (b) the Company will cooperate in the defense of any
such matter; provided, however, that the Company shall not be liable for any
settlement effected without its written consent (which consent shall not be
unreasonably withheld); provided, further, that in the event that any claim or
claims for indemnification under this Section 6 are asserted or made within such
two-year period, all rights to indemnification in respect of any such claim or
claims shall continue until the final disposition of any and all such
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claims. This Section 6 shall survive until the latest of the following: (i) two
years from the date hereof, (ii) the termination of this Agreement, and (iii)
the final disposition of all claims for indemnification asserted or made within
the two-year period following the date hereof.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof.
(b) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or
terminated, except upon the execution and delivery of a written
agreement executed by the parties hereto.
(c) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any courier service, such
as Federal Express, providing proof of delivery. Except for the Company
whose address is set forth below, all communications hereunder shall be
delivered to the respective parties at the addresses set forth on Part A
of Schedule I hereof.
If to the Company: Duramed Pharmaceuticals, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇, Stettinius & Hollister LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(d) Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to
be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal
or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and
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this Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein.
(e) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by any Stockholder of any covenants or
agreements contained in this Agreement will cause the Company to sustain
damages for which they would not have an adequate remedy at law for money
damages, and therefore each of the parties hereto agrees that in the event
of any such breach the Company shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which they may be
entitled, at law or in equity.
(f) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
(g) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise
available in respect hereof at Law or in equity, or to insist upon
compliance by any other party hereto with his or its obligations
hereunder, and any custom or practice of the parties at variance with the
terms hereof, shall not constitute a waiver by such party of his or its
right to exercise any such or other right, power or remedy or to demand
such compliance.
(h) No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or
entity who or which is not a party hereto; provided that, in the event of
the Stockholder's death, the benefits and obligations of the Stockholder
hereunder shall inure to his successors and heirs.
(i) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the Laws of the State of Delaware,
without regard to any applicable conflicts of law.
(j) Jurisdiction. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any
court of the United States located in the State of Delaware or in any
Delaware state court, this being in addition to any other remedy to which
they are entitled at Law or in equity. In addition, each of the parties
hereto (a) consents to submit itself to the personal jurisdiction of any
federal court located in the State of Delaware state court in the event
any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to
deny or defeat such personal jurisdiction
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by motion or other request for leave from any such court and (c) agrees
that it will not bring any action relating to this Agreement or any of the
transactions contemplated by this Agreement in any court other than a
federal or state court sitting in the State of Delaware.
(k) Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
(l) Counterparts. This Agreement may be executed in counterparts
(including by facsimile), each of which shall be deemed to be an original,
but all of which, taken together, shall constitute one and the same
Agreement. This Agreement shall not be effective as to any party hereto
until such time as this Agreement or a counterpart thereof has been
executed and delivered by each party hereto.
8. Termination. This Agreement shall terminate without any further
action on the part of any party hereto on the first to occur of the Effective
Time or the Termination Date.
[Signature Page Follows]
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PARENT STOCKHOLDER VOTING AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the Stockholder and a duly authorized officer of the Company on the day and year
first written above.
DURAMED PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President & COO
▇▇▇▇▇▇▇ DELAWARE, INC.
By: /s/ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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SCHEDULE I
Part A
Name and Address of Stockholder Shares of Common Stock
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▇▇▇▇▇▇▇ Delaware, Inc. 11,382,038
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇