This Voting Agreement (this Agreement), dated as of January 3, 2019, is entered into by and between the undersigned member (Unit Holder) of Salarius Pharmaceuticals, LLC, a Delaware limited liability company (the Company), Flex Pharma, Inc., a Delaware corporation (Parent), and solely with respect to Section 3(b)(ii) and Section 3(c), Company. Parent and the Unit Holder are each sometimes referred to herein individually as a Party and collectively as the Parties.
WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent, and Falcon Acquisition Sub, LLC, a Delaware limited liability company and wholly owned subsidiary of Parent (Merger Sub), have entered, or will enter, into an Agreement and Plan of Merger and Reorganization (as the same may be amended from time to time, the Merger Agreement), providing for, among other things, the merger (the Merger) of Merger Sub and the Company pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, concurrently with or following the execution of this Agreement, Unit Holder has entered into or will enter into a Lock-Up Agreement in connection with the Merger (the Lock-Up Agreement);
WHEREAS, in order to induce Parent to enter into the Merger Agreement, Unit Holder is willing to make certain representations, warranties, covenants, and agreements as set forth in this Agreement with respect to the limited liability company interests of the Company (Company Interests) Beneficially Owned by Unit Holder and set forth below Unit Holders signature on the signature page hereto (the Original Interests and, together with any additional Company Interests pursuant to Section 6 hereof, the Interests); and
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has required that Unit Holder, and Unit Holder has agreed to, execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants, and agreements set forth below and for other good and valuable consideration, the receipt, sufficiency, and adequacy of which are hereby acknowledged, the Parties hereto, intending to be legally bound, do hereby agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. When used in this Agreement, the following terms in all of their tenses, cases, and correlative forms shall have the meanings assigned to them in this Section 1.
(a) Beneficially Own or Beneficial Ownership has the meaning assigned to such term in Rule 13d-3 under the Exchange Act, and a Persons beneficial ownership of securities shall be calculated in accordance with the provisions of such rule (in each case, irrespective of whether or not such rule is actually applicable in such circumstance). For the avoidance of doubt, Beneficially Own and Beneficial Ownership shall also include record ownership of securities.
(b) Beneficial Owner shall mean the Person who Beneficially Owns the referenced securities.
2. Representations of Unit Holder. Unit Holder represents and warrants to Parent that:
(a) Ownership of Interests. Unit Holder: (i) is the Beneficial Owner of all of the Original Interests free and clear of all Encumbrances, other than those created by this Agreement, those created by the Lock-Up Agreement, those provided in the limited liability company operating agreement of the Company, or those pursuant to federal or state securities law; and (ii) has the sole voting power over all of the Original Interests. Except pursuant to this Agreement, the Lock-Up Agreement and the Companys limited liability company operating agreement, there are no options, warrants, or other rights, agreements, arrangements, or commitments of any character to which Unit Holder is a party relating to the pledge, disposition, or voting of any of the Original Interests and there are no voting trusts or voting agreements with respect to the Original Interests.