Form of Metuchen Voting Agreement, by and between Neurotrope and certain unitholders of Metuchen
This VOTING AGREEMENT (this “Agreement”) is entered into as of May 17, 2020, by and between Neurotrope, Inc., a Nevada corporation (“Neurotrope”), and the undersigned (the “Member”).
WHEREAS, as of the date hereof, the Member is the sole record and beneficial owner of and has the sole power to vote (or to direct the voting of) the number of preferred units (the “Preferred Units”) of Metuchen Pharmaceuticals LLC, a Delaware limited liability company (“Company”), set forth opposite the Member’s name on Schedule I hereto (such Preferred Units together with any other equity interests of Company (“Units”) the voting power of which is acquired by such Member during the period from the date hereof through the date on which this Agreement is terminated in accordance with its terms, are collectively referred to herein as the “Subject Units”);
WHEREAS, Petros Pharmaceuticals, Inc., a Delaware corporation (“Parent”), PM Merger Sub 1, LLC, a Delaware limited liability company and direct wholly owned subsidiary of Parent (“Merger Sub 1”), PN Merger Sub 2, Inc., a Nevada corporation and direct wholly owned subsidiary of Parent (“Merger Sub 2”), Company and Neurotrope, are concurrently entering into an agreement and plan of merger, dated as of the date hereof (as amended from time to time, the “Merger Agreement”), pursuant to which (i) Merger Sub 1 will be merged with and into the Company (the “Metuchen Merger”) with the Company continuing as the surviving limited liability company and as a wholly owned subsidiary of Parent, and (ii) Merger Sub 2 will be merged with and into Neurotrope (the “Neurotrope Merger” and together with the Metuchen Merger, the “Mergers”) with Neurotrope continuing as the surviving corporation and as a wholly owned subsidiary of Parent;
WHEREAS, the adoption of the Merger Agreement requires the affirmative vote of the holders of a majority in voting power of the outstanding preferred units of Company outstanding on the applicable record date; and
WHEREAS, as an inducement to Neurotrope’s willingness to enter into the Merger Agreement and consummate the transactions contemplated thereby, transactions from which the Member believes it will derive substantial benefits through its ownership interest in Company, the Member is entering into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, the parties agree as follows:
Section 1.1 Capitalized Terms. For purposes of this Agreement, capitalized terms used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
VOTING AGREEMENT AND IRREVOCABLE PROXY
Section 2.1 Agreement to Vote. The Member hereby agrees that, during the Voting Period (as defined below), and at any duly called meeting of the members of Company (or any adjournment or postponement thereof), or in any other circumstances (including action by written consent of members in lieu of a meeting) upon which a vote, adoption or other approval or consent with respect to the adoption of the Merger Agreement or the approval of the Metuchen Merger and any of the transactions contemplated thereby is sought, the Member shall, if a meeting is held, appear at the meeting, in person or by proxy, and shall provide a written consent or vote (or cause to be voted), in person or by proxy, all its Subject Units, in each case (a) in favor of (i) any proposal to adopt and approve or reapprove the Merger Agreement and the other transactions contemplated thereby and (ii) waiving any notice that may have been or may be required relating to the Metuchen Merger or any of the other transactions contemplated by the Merger Agreement, and (b) against any Acquisition Proposal and any action in furtherance of any such Acquisition Proposal. As used herein, (x) the term “Expiration Time” shall mean the earliest to occur of (A) the Effective Time and (B) the date and time of the valid termination of the Merger Agreement in accordance with its terms, and (y) the term “Voting Period” shall mean such period of time between the date hereof and the Expiration Time.
Section 2.2 Grant of Irrevocable Proxy. The Member hereby appoints Neurotrope and any designee of Neurotrope, and each of them individually, as the Member’s proxy, with full power of substitution and resubstitution, to vote, in the event the Member shall fail to take any action in accordance with the requirements of Section 2.1 hereof, including by executing written consents, during the Voting Period with respect to any and all of the Subject Units on the matters and in the manner specified in Section 2.1; provided, however, that such vote shall be restricted to the matters set forth in Section 2.1 and such vote shall be (a) in favor of (i) any proposal to adopt and approve or reapprove the Merger Agreement and the other transactions contemplated thereby and (ii) waiving any notice that may have been or may be required relating to the Metuchen Merger or any of the other transactions contemplated by the Merger Agreement, and (b) against any Acquisition Proposal and any action in furtherance of any such Acquisition Proposal. The Member shall take all further action or execute such other instruments as may be necessary to effectuate the intent of any such proxy. The Member affirms that the irrevocable proxy given by it hereby with respect to the Merger Agreement and the transactions contemplated thereby is given to Neurotrope by the Member to secure the performance of the obligations of the Member under this Agreement. It is agreed that Neurotrope (and its officers on behalf of Neurotrope) will use the irrevocable proxy that is granted by the Member hereby solely to the extent specified in this Section 2.2 and only in accordance with applicable Legal Requirements and that, to the extent Neurotrope (and its officers on behalf of Neurotrope) uses such irrevocable proxy, it will only vote (or sign written consents in respect of) the Subject Units subject to such irrevocable proxy with respect to the matters specified in, and in accordance with the provisions of, Section 2.1.
Section 2.3 Nature of Irrevocable Proxy. The proxy granted pursuant to Section 2.2 to Neurotrope by the Member shall be irrevocable during the Voting Period, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies or powers of attorney granted by the Member and no subsequent proxy or power of attorney shall be given or written consent executed (and if given or executed, shall not be effective) by the Member with respect thereto. The proxy that may be granted hereunder shall terminate upon the termination of this Agreement, but shall survive the death or incapacity of the Member and any obligation of the Member under this Agreement shall be binding upon the heirs, personal representatives and successors of the Member.
Section 3.1 Subject Units.
(a) The Member agrees that (i) from the date hereof until the Expiration Time, it shall not, and shall not commit or agree to, without Neurotrope’s prior written consent, directly or indirectly, whether by merger, consolidation or otherwise, offer for sale, sell (including short sales), transfer, tender, pledge, encumber, assign or otherwise dispose of (including by gift or by operation of law) (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 or permit, a Transfer of, any or all of the Subject Units or any interest therein; and (ii) during the Voting Period, it shall not, and shall not commit or agree to, without Neurotrope’s prior written consent, (A) grant any proxies or powers of attorney with respect to any or all of the Subject Units or agree to vote (or sign written consents in respect of) the Subject Units on any matter or divest itself of any voting rights in the Subject Units, or (B) take any action that would have the effect of preventing or disabling the Member from performing its obligations under this Agreement. Notwithstanding the foregoing, the Member may (1) make transfers or dispositions of the Subject Units to any member of the immediate family of the Member or to any trust for the direct or indirect benefit of the Member or the immediate family of the Member, (2) make transfers or dispositions of the Subject Units by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the Member, (3) make transfers of the Subject Units to unitholders, direct or indirect affiliates (within the meaning set forth in Rule 405 under the Securities Act of 1933, as amended), current or former partners (general or limited), members or managers of the Member, as applicable, or to the estates of any such unitholders, affiliates, partners, members or managers, or to another corporation, partnership, limited liability company or other business entity that controls, is controlled by or is under common control with the Member, (4) make transfers that occur by operation of law pursuant to a qualified domestic relations order or in connection with a divorce settlement, (5) make transfers or dispositions not involving a change in beneficial ownership and (6) if the Member is a trust, make transfers or dispositions to any beneficiary of the Member or the estate of any such beneficiary. The Member agrees that any Transfer of Subject Units not permitted hereby shall be null and void and that any such prohibited Transfer shall be enjoined. If any voluntary or involuntary transfer of any Subject Units covered hereby shall occur (including, but not limited to, a sale by the Member’s trustee in bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Subject Units subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect.
(b) In the event of a dividend or distribution, or any change in the Subject Units by reason of any dividend or distribution, split-up, recapitalization, combination, conversion, exchange of Units or the like, the term “Subject Units” shall be deemed to refer to and include the Subject Units as well as all such dividends and distributions and any securities into which or for which any or all of the Subject Units may be changed or exchanged or which are received in such transaction. The Member further agrees that, in the event Member purchases or otherwise acquires beneficial or record ownership of or an interest in, or acquires the right to vote or share in the voting of, any additional Units, in each case after the execution of this Agreement, the Member shall deliver promptly to Neurotrope written notice of such event, which notice shall state the number of additional Units so acquired. The Member agrees that any such additional Units shall be subject to the terms of this Agreement, including all covenants, agreements, obligations, representations and warranties set forth herein as if those additional Units were owned by the Member on the date of this Agreement.
Section 3.2 Member’s Capacity. All agreements and understandings made herein shall be made solely in the Member’s capacity as a holder of the Subject Units and not in any other capacity.
Section 3.3 Other Offers. Except to the extent Company is permitted to take such action pursuant to the Merger Agreement, neither the Member (in the Member’s capacity as such), shall, nor shall the Member authorize or permit any of its Representatives to, take any of the following actions: (a) solicit, initiate, knowingly encourage or knowingly facilitate an Acquisition Proposal, (b) furnish any non-public information regarding Neurotrope to any Person in connection with or in response to an Acquisition Proposal, (c) engage in, enter into, continue or otherwise participate in any discussions or negotiations with any Person with respect to, or otherwise knowingly cooperate in any way with any person (or any representative thereof) with respect to, any Acquisition Proposal, (d) approve, endorse or recommend or propose to approve, endorse or recommend, any Acquisition Proposal or (e) enter into any letter of intent or similar document or any Contract contemplating, approving, endorsing or recommending or proposing to approve, endorse or recommend, any Acquisition Transaction or accepting any Acquisition Proposal; provided, however, that none of the foregoing restrictions shall apply to the Member’s and its Representatives’ interactions with Parent, Neurotrope, Company and its and their respective subsidiaries and representatives. Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by any Representatives of the Member shall be deemed to be a breach of this Section 3.3 by the Member. The Member shall, and shall use reasonable best efforts to cause its Representatives to, immediately cease any and all existing discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal.
Section 3.4 Communications. The Member hereby (a) consents to and authorizes the publication and disclosure by Parent, Neurotrope, and Company (including in any publicly filed documents relating to the Merger or any transaction contemplated by the Merger Agreement) of: (i) the Member’s identity; (ii) the Member’s beneficial ownership of the Subject Units; and (iii) the nature of the Member’s commitments, arrangements and understandings under this Agreement, and any other information that Parent, Neurotrope, or Company determines to be necessary in any SEC disclosure document in connection with the Merger or any transactions contemplated by the Merger Agreement and (b) agrees as promptly as practicable to notify Parent, Neurotrope, and Company of any required corrections with respect to any written information supplied by the Member specifically for use in any such disclosure document.
Section 3.5 Voting Trusts. The Member agrees that it will not, nor will it permit any entity under its control to, deposit any of its Subject Units in a voting trust or subject any of its Subject Units to any arrangement with respect to the voting of such Subject Units other than as provided herein.
Section 3.6 Waiver of Appraisal Rights. The Member hereby irrevocably and unconditionally waives, and agrees not to assert, exercise or perfect (or attempt to exercise, assert or perfect) any rights of appraisal or rights to dissent from the Merger or quasi-appraisal rights that it may at any time have under applicable Legal Requirements. The Member agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub 1, Merger Sub 2, Neurotrope, Company or any of their respective successors, directors or officers, (a) challenging the validity, binding nature or enforceability of, or seeking to enjoin the operation of, this Agreement or the Merger Agreement, or (b) alleging a breach of any fiduciary duty of any Person in connection with the evaluation, negotiation, entry into or consummation of the Merger Agreement.
REPRESENTATIONS AND WARRANTIES OF MEMBER
The Member hereby represents and warrants to Neurotrope as follows:
Section 4.1 Due Authorization, etc. The Member is a natural person, corporation, limited partnership or limited liability company. If Member is a corporation, limited partnership or limited liability company, Member is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, organized or constituted. The Member has all necessary power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by the Member have been duly authorized by all necessary action on the part of the Member and no other proceedings on the part of the Member are necessary to authorize this Agreement, or to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Member and (assuming the due authorization, execution and delivery by Neurotrope) constitutes a valid and binding obligation of the Member, enforceable against the Member in accordance with its terms, except to the extent enforcement is limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Legal Requirements of general applicability relating to or affecting creditors’ rights and by general equitable principles.
Section 4.2 Ownership of Units. Schedule I hereto sets forth opposite the Member’s name the Units over which the Member has sole record and beneficial ownership as of the date hereof. As of the date hereof, the Member is the lawful owner of the Units denoted as being owned by the Member on Schedule I hereto, has the sole power to vote or cause to be voted such Units and has the sole power to dispose of or cause to be disposed such Units (other than, if Member is a partnership or a limited liability company, the rights and interest of persons and entities that own partnership interests or units in Member under the partnership agreement or operating agreement governing Member and applicable partnership or limited liability company law, or if Member is a married individual and resides in a state with community property laws, the community property interest of his or her spouse to the extent applicable under such community property laws, which spouse hereby consents to this Agreement by executing the spousal consent attached hereto). The Member has, and will at all times up until the Expiration Time have, good and valid title to the Units denoted as being owned by the Member on Schedule I hereto, free and clear of any and all pledges, mortgages, liens, charges, proxies, voting agreements, encumbrances, adverse claims, options, security interests and demands of any nature or kind whatsoever, other than (i) those created by this Agreement, or (ii) those existing under applicable securities laws.
Section 4.3 No Conflicts. (a) No filing with any Governmental Body, and no authorization, consent or approval of any other person is necessary for the execution of this Agreement by the Member and (b) none of the execution and delivery of this Agreement by the Member, the consummation by the Member of the transactions contemplated hereby or compliance by the Member with any of the provisions hereof shall (i) conflict with or result in any breach of the organizational documents of the Member, (ii) result in, or give rise to, a violation or breach of or a default under any of the terms of any material contract, understanding, agreement or other instrument or obligation to which the Member is a party or by which the Member or any of the Subject Units or its assets may be bound or (iii) violate any applicable order, writ, injunction, decree, judgment, statute, rule or regulation, except for any of the foregoing as would not reasonably be expected to impair the Member’s ability to perform its obligations under this Agreement.
Section 4.4 Finder’s Fees. No investment banker, broker, finder or other intermediary is entitled to a fee or commission from Parent, Merger Sub 1, Merger Sub 2, Neurotrope, or Company in respect of this Agreement based upon any Contract made by or on behalf of the Member, solely in the Member’s capacity as a member of Company.
Section 4.5 No Litigation. As of the date of this Agreement, there is no Legal Proceeding pending or, to the knowledge of the Member, threatened against the Member that would reasonably be expected to impair the ability of the Member to perform its obligations hereunder or consummate the transactions contemplated hereby.
Section 5.1 Termination. This Agreement shall automatically terminate, and neither Neurotrope nor the Member shall have any rights or obligations hereunder and this Agreement shall become null and void and have no effect upon the earliest to occur of: (a) the Effective Time; or (b) the valid termination of the Merger Agreement in accordance with its terms. The parties acknowledge that, upon termination of this Agreement as permitted under and in accordance with the terms of this Article V, no party to this Agreement shall have the right to recover any claim with respect to any losses suffered by such party in connection with such termination, except that the termination of this Agreement shall not relieve either party to this Agreement from liability for such party’s intentional and material breach of any terms of this Agreement. Notwithstanding anything to the contrary herein, the provisions of this Article V and Article VI shall survive the termination of this Agreement.
Section 6.1 Further Actions. Subject to the terms and conditions set forth in this Agreement, the Member agrees to take any and all actions and to do all things reasonably necessary to effectuate this Agreement.
Section 6.2 Fees and Expenses. Except as otherwise specifically provided herein, each party shall bear its own expenses in connection with this Agreement and the transactions contemplated hereby.
Section 6.3 Amendments, Waivers, etc. This Agreement may not be amended except by an instrument in writing signed by the parties hereto and specifically referencing this Agreement. The failure of any party to assert any rights or remedies shall not constitute a waiver of such rights or remedies.
Section 6.4 Notices. Any notice, request, instruction or other document required to be given hereunder shall be sufficient if in writing, and sent by confirmed electronic mail transmission of a “portable document format” (“.pdf”) attachment (provided that any notice received by electronic mail transmission or otherwise at the addressee’s location on any business day after 5:00 p.m. (addressee’s local time) shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next business day), by reliable overnight delivery service (with proof of service), or hand delivery, addressed as follows:
If to Neurotrope, to
1185 Avenue of the Americas, 3rd Floor
New York, New York 10036
Attention: Charles S. Ryan
with a copy to (which shall not constitute notice):
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
666 Third Avenue
New York, NY 10017
Attn: Kenneth R. Koch
Daniel A. Bagliebter
If to the Member to the address or electronic mail address set forth on the signature pages hereto, or to such other person or address as any party shall specify by written notice so given.
Section 6.5 Headings. Headings of the Articles and Sections of this Agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
Section 6.6 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application of such provision to any person or any circumstance, is invalid or unenforceable (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application of such provision, in any other jurisdiction.
Section 6.7 Entire Agreement; Assignment. This Agreement constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, between the parties, or any of them, with respect to the subject matter hereof. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties, except that without consent, Neurotrope may assign all or any of its rights and obligations hereunder to any of its Affiliates that assume the rights and obligations of Neurotrope under the Merger Agreement. Subject to the preceding two sentences, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns. Notwithstanding anything to the contrary set forth herein, the Member agrees that this Agreement and the obligations hereunder shall be binding upon any Person to which record or beneficial ownership of the Member’s Subject Units shall pass, whether by operation or law or otherwise, including the Member’s heirs, guardians, administrators or successors and assigns, and the Member agrees to take all actions necessary to effect the foregoing.
Section 6.8 Governing Law. THIS AGREEMENT AND ALL QUESTIONS RELATING TO THE INTERPRETATION OR ENFORCEMENT OF THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF TO THE EXTENT THAT SUCH PRINCIPLES WOULD DIRECT A MATTER TO ANOTHER JURISDICTION.
Section 6.9 Specific Performance. The Member acknowledges that any breach of this Agreement would give rise to irreparable harm for which monetary damages would not be an adequate remedy and each of Company and Neurotrope shall be entitled to a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of this Agreement, without the necessity of proving the inadequacy of monetary damages as a remedy, which shall be the sole and exclusive remedy for any such breach.
Section 6.10 Submission to Jurisdiction. The parties hereby irrevocably submit to the exclusive personal jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement may not be enforced in or by such courts, and the parties hereto irrevocably agree that all claims relating to such action, suit or proceeding shall be heard and determined in such courts. The parties hereby consent to and grant any such court jurisdiction over the person of such parties and, to the extent permitted by law, over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 6.4 or in such other manner as may be permitted by Legal Requirements shall be valid and sufficient service thereof.
Section 6.11 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.11.
Section 6.12 Counterparts. This Agreement may be executed in two or more counterparts (including by facsimile transmission or other means of electronic transmission, such as by electronic mail in “.pdf” form), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by facsimile or otherwise) to the other parties.
[Remainder of page left intentionally blank. Signature pages follow.]
IN WITNESS WHEREOF, Neurotrope and the Member have caused this Agreement to be duly executed as of the day and year first above written.
|Name:||Charles S. Ryan|
|Title:||Chief Executive Officer|
[Signature Page to Voting Agreement]
|JCP SM AIV, L.P.,|
|By:||Juggernaut Partners III GP, L.P.,|
|its general partner|
|By:||Juggernaut Partners III GP, Ltd.,|
|its general partner|
|Address:||5301 Wisconsin Avenue, NW|
|Washington, DC 20015|
[Signature Page to Voting Agreement]
Ownership of Units
|Name and Address of Member||Number of Preferred Units|
JCP SM AIV, L.P.
5301 Wisconsin Avenue, NW
Washington, DC 20015