EXHIBIT 10.1
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is dated March 19, 2004, and is
among HALSEY DRUG CO., INC., a New York corporation (the "Company"), IVAX
PHARMACEUTICALS NEW YORK LLC, a New York limited liability company (the
"Purchaser"), and each signatory listed on Exhibit A attached hereto (each such
signatory a "Holder" and, collectively, the "Holders").
WHEREAS, the Company and the Purchaser are parties to that certain Asset
Purchase Agreement dated as of March 19, 2004 (the "Asset Purchase Agreement"),
substantially in the form attached hereto as Exhibit B and as finally entered
into by the Purchaser pursuant to which the Purchaser is purchasing certain of
the Company's assets used in connection with the Company's operations located in
Congers, New York, on such terms and conditions as determined by the Company's
Board of Directors and the Purchaser (the "Proposed Transaction"); and
WHEREAS, to induce the Purchaser to enter into the Asset Purchase Agreement
which it would not do but for the agreement of the Holders to enter into this
Agreement; and
WHEREAS, the closing of the Proposed Transaction is conditioned upon
security holders of the Company, who, collectively, represent no less than
two-thirds of the Company's issued and outstanding common stock or right to vote
as if they owned such common stock, entering into this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Representations and Warranties. Each Holder hereby represents, warrants
and covenants to the Purchaser as follows:
(a) Title. As of the date hereof, each Holder is the sole beneficial
owner of record of the number of shares of each class of security of the Company
set forth on Exhibit A hereto (the "Shares"). The term "beneficial owner" and
all correlate expressions are used in this Agreement as defined in Rules 13d-3
and 16a-1 under the Securities Exchange Act of 1934, as amended; provided,
however, that for the avoidance of doubt, each Holder will not be deemed the
beneficial owner of any shares of capital stock of the Company that a Holder has
the right to acquire, such as shares issuable to a Holder upon the exercise of
an option or warrant, unless and until such shares are actually acquired by a
Holder at which time such shares shall be treated as Additional Shares pursuant
to Section 5 below; and further provided that notwithstanding the proviso stated
above, certain of the Holders have the right to vote their Shares.
(b) Right to Vote. As of the date hereof, except for this Agreement or
as otherwise permitted by this Agreement, each Holder has full legal power,
authority and right to vote all of the Shares then owned of record or
beneficially by it, in favor of the approval and authorization of the Proposed
Transaction without the consent or approval of, or any other action on the part
of, any other Person. Without limiting the generality of the foregoing, each
Holder has not entered into any voting agreement (other than this Agreement)
with any Person with respect to any of the Shares, granted any Person any proxy
(revocable or irrevocable) or power of attorney with respect to any of the
Shares, deposited any of the Shares in a voting trust or
entered into any arrangement or agreement with any Person limiting or affecting
such Holder's legal power, authority or right to vote the Shares on any matter,
except for the Voting Agreement dated February 6, 2004, concerning the election
of directors and the amendment to the certificate of incorporation to increase
the authorized common stock of the Company and authorize the creation of
preferred stock. From and after the date hereof, except as otherwise permitted
by this Agreement, each Holder will not commit any act that could restrict or
otherwise affect such Holder's legal power, authority and right to vote all of
the Shares then owned of record or beneficially by such Holder. Without limiting
the generality of the foregoing, except for this Agreement and as otherwise
permitted by this Agreement, from and after the date hereof, each Holder shall
not enter into any voting agreement with any Person with respect to any of the
Shares, grant any Person 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 of any kind
with any Person limiting or affecting such Holder's legal power, authority or
right to vote the Shares in favor of the approval of the Proposed Transaction.
(c) Authority. Each Holder has full legal power, authority and right
to execute and deliver and to perform its obligations under this Agreement. This
Agreement has been duly and validly executed and delivered by each Holder and
constitutes a legal, valid and binding agreement of each Holder enforceable
against it in accordance with its terms.
(d) Conflicting Instruments. The execution and delivery of this
Agreement and the performance by each Holder of its obligations hereunder will
not result in any: (i) violation or breach of, or be in conflict with, such
Holder's respective organizational documents or material contracts, as
applicable or (ii) violation of any statutes, laws, rules, regulations, orders
or judgments applicable to such Holder, as applicable, except for any such
breach, violation, conflict or default which, individually or in the aggregate,
would not impair or adversely affect such Holder's ability to perform its
obligations under this Agreement or render inaccurate any of the representations
made by such Holder herein.
2. Covenants. Until the termination of this Agreement in accordance with
Section 4, each Holder hereby agrees as follows:
(a) Restrictions on Transfer. Each Holder shall not, directly or
indirectly, assign, sell, pledge, encumber, transfer (including transfers by
testamentary or intestate succession or otherwise by operation of law) or
otherwise dispose of (collectively, "Transfer"), or agree to or allow the
Transfer, any of the Shares owned of record or beneficially by such Holder or
any right, title or interest in any Additional Shares (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); provided, however, that notwithstanding anything to the
contrary contained in this Agreement, a Holder may Transfer Shares or any right,
title or interest in any Additional Shares to a transferee if such transferee
executes and delivers to the Company and the Purchaser a joinder to this
Agreement satisfactory in form and substance to the Company and the Purchaser,
stating that such transferee agrees to be fully bound by the terms of this
Agreement.
(b) Agreement to Vote. Each Holder hereby agrees to vote or to cause
to be voted all of the Shares and Additional Shares owned of record or
beneficially by such Holder as
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of the record date for such meeting or written consent, at the Company's
upcoming meeting of Shareholders and at any other annual or special meeting of
stockholders of the Company where any such proposal is submitted, and in
connection with any written consent of stockholders: (A) in favor of the
Proposed Transaction; and (B) against any action that may reasonably be expected
to (i) impede, interfere with, delay, postpone or attempt to discourage the
consummation of the transactions contemplated by the Asset Purchase Agreement or
(ii) result in a breach of any of the covenants, representations, warranties or
other obligations or agreements of the Company under the Asset Purchase
Agreement which would materially and adversely affect the Company or the
Purchaser or their respective abilities to consummate the transactions
contemplated by the Asset Purchase Agreement.
(c) Granting of Proxy. In furtherance of the terms and provisions of
this Agreement, and to secure the performance of obligations hereunder, each
Holder hereby grants an irrevocable proxy, coupled with an interest, to the
Purchaser and any authorized representative or agent of the Purchaser to vote
all of the Shares beneficially owned now or during the term of the Asset
Purchase Agreement by the Holder in favor of the Proposed Transaction and in
accordance with the provisions of Section 2(b) and this Section 2(c). Each
Holder hereby ratifies and approves of each and every action taken by the
Purchaser and any authorized representative or agent of the Purchaser pursuant
to the foregoing proxy. Notwithstanding the foregoing, if requested by the
Purchaser, each Holder shall execute and deliver applicable proxy materials in
furtherance of the provisions of Section 2(b) and this Section 2(c).
(d) Appointing New Agent. Each Holder hereby covenants that if for any
reason, Galen Partners III, L.P. is no longer acting as the agent for the
Holders, pursuant to a certain Agency Letter Agreement dated February 6, 2004,
the Holders shall appoint a replacement agent and the Holders shall cause such
replacement agent to sign an Agent's Release of Liens form in the same form
signed by Galen Partners III, L.P. on this date.
(e) Each Holder consents to the Company's granting of a first lien and
security interest in and to the Purchaser in the Acquired Assets to secure the
repayment of the First Closing Payment and no Holder will consent to the
granting of any other lien by it or by any Third-Party on the Acquired Assets.
3. Action in Holder Capacity Only. Each Holder makes no agreement or
understanding herein as director, officer or employee of the Company. Each
Holder signs solely in such Holder's capacity as a record holder and beneficial
owner of the Shares, and nothing herein shall limit or affect any actions taken
in its capacity as an officer, director or employee of the Company.
4. Amendments; Termination; Modification.
(a) Except as otherwise provided herein, this Agreement may not be
amended except by an instrument in writing signed on behalf of all parties.
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(b) This Agreement will terminate upon the earlier to occur of (i) the
date and time at which the Company's stockholder approval approving the Proposed
Transaction is obtained, and (ii) the termination of the Purchase Agreement in
accordance with its terms.
5. Additional Shares. If, after the date hereof, a Holder acquires
beneficial or record ownership of any additional shares of capital stock of the
Company (any such shares, "Additional Shares"), including, without limitation,
upon exercise of any option, warrant or right to acquire shares of capital stock
of the Company or through any stock dividend or stock split, the provisions of
this Agreement applicable to the Shares will thereafter be applicable to such
Additional Shares as if such Additional Shares had been Shares as of the date
hereof. The provisions of the immediately preceding sentence will be effective
with respect to Additional Shares without action by any person or entity
immediately upon the acquisition by such Holder of beneficial ownership of such
Additional Shares.
6. Certain Remedies. Without intending to limit the remedies available to
any of the parties, each party agrees that damages at law will be an
insufficient remedy in the event such party violates the terms hereof or the
powers granted hereunder. Each party agrees that each of the other parties
hereto may apply for and have injunctive or other equitable relief in any court
of competent jurisdiction to restrain the breach or threatened breach of, or
otherwise specifically to enforce, any of such party's rights or powers granted
hereunder.
7. Binding Effect. This Agreement and the powers granted hereunder will be
binding upon, and inure to the benefit of, the parties hereto, their successors
and permitted assigns.
8. Notices. All notices, demands or other communications given hereunder
must be in writing and transmitted by facsimile or delivered either personally
or by a nationally recognized courier service marked for next business day
delivery or sent in a sealed envelope by first class mail, postage prepaid and
either registered or certified, return receipt requested, to the address for
each party as provided on the signature pages hereto, and in the case of the
Purchaser with a copy to the General Counsel or to such other address as any
such party may designate in writing. Any such notice, demand or communication
will be deemed to have been given (a) on the date of delivery, if delivered
personally, (b) on the date of facsimile transmission, receipt confirmed, (c)
one business day after delivery to a nationally recognized overnight courier
service, if marked for next day delivery or (d) five business days after the
date of mailing, if mailed.
9. Miscellaneous. The section headings herein are inserted for convenience
of reference only and do not affect the meaning or interpretation hereof. Any
capitalized term used in this Agreement which is not defined herein shall have
the meaning assigned to it in the Asset Purchase Agreement. This Agreement
constitutes the entire agreement of the parties pertaining to the subject matter
of this Agreement. It supersedes all prior agreements of the parties, whether
oral or written, pertaining to the subject matter of this Agreement. If any
provision of this Agreement is held unenforceable by a court of competent
jurisdiction, all other provisions of this Agreement will remain effective. If
any provision of this Agreement is held to be unenforceable only in part or
degree, it will remain effective to the extent not held unenforceable. This
Agreement may be executed in counterparts, each of which is an original and all
of which
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together constitute one and the same instrument. This Agreement is governed by
the laws of the State of New York without giving effect to principles of
conflict of laws.
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The undersigned are executing this Agreement on the date stated in the
introductory clause.
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HALSEY DRUG CO., INC. IVAX PHARMACEUTICALS NEW YORK LLC
616 N. North Court By: IVAX Corporation
Palatine, Illinois 60067 4400 Biscayne Boulevard
Miami, Florida 33137
Attn: Rafick Henein
/s/ Andrew D. Reddick /s/ Jordan Siegel
---------------------------- ----------------------------
By: Andrew D. Reddick By:
Its: President and CEO Its:
GALEN PARTNERS III, L.P. ORACLE STRATEGIC PARTNERS, L.P.
By: Claudius, L.L.C., General Partner By: Oracle Strategic Capital L.L.C.,
610 Fifth Avenue, 5th Fl. General Partner
New York, New York 10019 200 Greenwich Avenue
3rd Floor
Greenwich, Connecticut 06830
/s/ Srini Conjeevaram /s/ Joel Liffmann
---------------------------- ----------------------------
By: Srini Conjeevaram By: Joel Liffmann
Its: General Partner Its: Authorized Agent
GALEN PARTNERS INTERNATIONAL, III, L.P. CARE CAPITAL INVESTMENTS II, LP
By: Claudius, L.L.C., General Partner By: Care Capital II, LLC, as general partner
610 Fifth Avenue, 5th Floor 47 Hulfish St., Suite 310
New York, New York 10020 Princeton, NJ 08542
/s/ Srini Conjeevaram
----------------------------
By: Srini Conjeevaram By: /s/ David R. Ramsay
----------------------------
Its: General Partner Name: David R. Ramsay
Title: Authorized Signatory
GALEN EMPLOYEE FUND III, L.P. ESSEX WOODLANDS HEALTH
By: Wesson Enterprises, Inc. VENTURES V, L.P.
610 Fifth Avenue, 5th Floor 190 South LaSalle Street, Suite 2800
New York, New York 10020 Chicago, IL 60603
/s/ Bruce F. Wesson /s/ Immanuel Thangaraj
---------------------------- ----------------------------
By: Bruce F. Wesson By: Immanuel Thangaraj
Its: General Partner Its: Managing Director
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ALAN SMITH PATRICK COYNE
21 Bedlow Avenue 800 Merion Square Road
Newport, Rhode Island 02840 Gladwyne, Pennsylvania 19035
/s/ Alan Smith /s/ Patrick Coyne
---------------------------- ----------------------------
MICHAEL WEISBROT SUSAN WEISBROT
1136 Rock Creek Road 1136 Rock Creek Road
Gladwyne, Pennsylvania 19035 Gladwyne, Pennsylvania 19035
/s/ Michael Weisbrot /s/ Susan Weisbrot
---------------------------- ----------------------------
GREG WOOD DENNIS ADAMS
1263 East Calavera Street 120 Kynlyn Road
Altadena, CA 91001 Radnor, Pennsylvania 19312
/s/ Greg Wood /s/ Dennis Adams
---------------------------- ----------------------------
STEFANIE HEITMEYER BERNARD SELZ
17759 Road, Route 66 600 Fifth Avenue, 25th Floor
Fort Jennings, Ohio 45844 New York, New York 10020
/s/ Stefanie Heitmeyer /s/ Bernard Selz
---------------------------- ----------------------------
PETER CLEMENS ROGER GRIGGS
c/o Halsey Drug Co., Inc. c/o Tom Jennings
616 N. North Court 7300 Turfway Road
Palatine, Illinois 60067 Suite 300
Florence, KY 41042
/s/ Peter Clemens /s/ Roger Griggs
---------------------------- ----------------------------
VARSHA H. SHAH HEMANT K. SHAH
29 Chrissy Drive 29 Chrissy Drive
Warren, New Jersey 07059 Warren, New Jersey 07059
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VARSHA H. SHAH AS CUSTODIAN VARSHA H. SHAH AS CUSTODIAN
FOR SACHIN H. SHAH FOR SUMEET H. SHAH
29 Chrissy Drive 29 Chrissy Drive
Warren, New Jersey 07059 Warren, New Jersey 07059
---------------------------- ----------------------------
By: Varshah H. Shah By: Varshah H. Shah
Its: Custodian Its: Custodian
MICHAEL RAINISCH ILENE RAINISCH
c/o Alvin Rainisch c/o Alvin Rainisch
300 Flower Lane 300 Flower Lane
Morganville, New Jersey 07751 Morganville, New Jersey 07751
/s/ Michael Rainisch /s/ Ilene Rainisch
---------------------------- ----------------------------
KENNETH GIMBEL, IRA ACCOUNT KENNETH GIMBEL
FBO KENNETH GIMBEL 2455 Montgomery Avenue
2455 Montgomery Avenue Highland Park, Illinois 60035
Highland Park, Illinois 60035
/s/ Kenneth Gimbel /s/ Kenneth Gimbel
---------------------------- ----------------------------
By:
----------------------------
Its: Trustee
JESSICA K. CLEMENS JAKE P. CLEMENS
c/o Halsey Drug Co., Inc. c/o Halsey Drug Co., Inc.
616 N. North Court 616 N. North Court
Palatine, Illinois 60067 Palatine, Illinois 60067
/s/ Peter Clemens /s/ Peter Clemens
---------------------------- ----------------------------
MICHAEL REICHER TRUST ANDREW D. REDDICK
c/o Halsey Drug Co., Inc. c/o Halsey Drug Co., Inc.
616 N. North Court 616 N. North Court
Palatine, Illinois 60067 Palatine, Illinois 60067
/s/ Andrew D. Reddick
----------------------------
----------------------------
By: Michael K. Reicher
Its: Trustee
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PETER STIEGLITZ GEORGE E. BOUDREAU
RJ Palmer LLC 222 Elbow Lane
156 West 56th Street, 5th Floor Haverford, PA 19041
New York, New York 10019
/s/ Peter Stieglitz /s/ George E. Boudreau
---------------------------- ----------------------------
JOHN E. HEPPE, JR. JAMES F. EMIGH
237 W. Montgomery Avenue c/o Halsey Drug Co., Inc.
Haverford, Pennsylvania 19041 616 N. North Court
Palatine, Illinois 60067
/s/ John E. Heppe, Jr. /s/ James F. Emigh
---------------------------- ----------------------------
WILLIAM G. SKELLY
c/o Central Biomedia, Inc.
9900 Pflumm Road - Suite 63
Lenexa, KS 66215
/s/ William Skelly
----------------------------
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EXHIBIT A