UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No.  7)*

 

(Name of Company)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

	with a copy to:
Chiesi Farmaceutici SpA Via Palermo 26/A 43122 Parma, Italy Attention: Marco Vecchia Phone: +39 0521 2791 Facsimile: +39 0521 774468	Morgan, Lewis & Bockius LLP 101 Park Avenue New York, New York 10178-0060 Attention: Steven A. Navarro Emilio Ragosa Phone: (212) 309-6000 Facsimile: (212) 309-6001

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

(1)	Represents 4,226,542 shares of Common Stock issuable upon conversion of the $30 million Term Loan B under the 2012 Credit Agreement (as defined below). Principal amounts outstanding under Term Loan B may be converted into Common Stock at $7.098 per share at Chiesi’s option at any time during the 24 months following the closing of the Facility, up to an aggregate of 4,226,542 shares of Common Stock.
(2)	Includes (i) 11,902,741 shares of common stock, par value $0.001 per share (“Common Stock”) of Cornerstone Therapeutics Inc. (the “Company”) acquired by Chiesi Farmaceutici SpA (“Chiesi”) on July 28, 2009; (ii) 1,600,000 shares of outstanding Common Stock acquired by Chiesi from two stockholders that are entities controlled by Craig A. Collard, the Chief Executive Officer of the Company, and Steven M. Lutz, the former Executive Vice President, Manufacturing and Trade of the Company; (iii) 269,684 shares of Common Stock that the Company was required to issue under the Stock Purchase Agreement (as defined below) which was requested by Chiesi within 90 days of the closing of the Company Stock Sale (as defined below); (iv) 450,000 shares of outstanding Common Stock acquired by Chiesi at a purchase price of $6.02 per share from entities controlled by Mr. Collard and Mr. Lutz on December 16, 2010, pursuant to the December 16, 2010 Stock Purchase Agreement (as defined below); (v) 21,200 shares of outstanding Common Stock acquired by Chiesi in open market transactions between November 29, 2011 and March 15, 2012; (vi) 1,443,913 shares of outstanding Common Stock acquired by Chiesi at a purchase price of $6.25 per share from Carolina (as defined below) on April 3, 2012, pursuant to the March 2012 Stock Purchase Agreement (as defined below); and (vii) options to purchase 110,000 shares of Common Stock that are exercisable within 60 days of the date of this filing held by certain directors of the Company, who are designees of Chiesi, and also serve as officers or directors of Chiesi.
(3)	Calculated based on 26,840,834 shares of Common Stock outstanding as of August 1, 2013 (as reported in the Company’s 10-Q filed August 6, 2013).

 

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(1)

Includes (i) 11,902,741 shares of common stock, par value $0.001 per share (“Common Stock”) of Cornerstone Therapeutics Inc. (the “Company”) acquired by Chiesi Farmaceutici SpA (“Chiesi”) on July 28, 2009; (ii) 1,600,000 shares of outstanding Common Stock acquired by Chiesi from two stockholders that are entities controlled by Craig A. Collard, the Chief Executive Officer of the Company, and Steven M. Lutz, the former Executive Vice President, Manufacturing and Trade of the Company; (iii) 269,684 shares of Common Stock that the Company was required to issue under the Stock Purchase Agreement (as defined below) which was requested by Chiesi within 90 days of the closing of the Company Stock Sale (as defined below); (iv) 450,000 shares of outstanding Common Stock acquired by Chiesi at a purchase price of $6.02 per share from entities controlled by Mr. Collard and Mr. Lutz on December 16, 2010, pursuant to the December 16, 2010 Stock Purchase Agreement (as defined below); (v) 21,200 shares of outstanding Common Stock acquired by Chiesi in open market transactions between November 29, 2011 and March 15, 2012; and (vi) 1,443,913 shares of outstanding Common Stock acquired by Chiesi at a purchase price of $6.25 per share from Carolina (as defined below) on April 3, 2012, pursuant to the March 2012 Stock Purchase Agreement (as defined below).

(2)

Calculated based on 26,840,834 shares of Common Stock outstanding as of August 1, 2013 (as reported in the Company’s 10-Q filed August 6, 2013).

 

 

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Item 1.

Security and Company

 

Item 1 is hereby amended and restated in its entirety as follows:

 

This Amendment No. 7 (this “Schedule 13D/A”) amends the Schedule 13D originally dated May 6, 2009, as amended on July 28, 2009, November 25, 2009, December 20, 2010 and April 17, 2012, and as amended and restated in its entirety on July 9, 2012 and subsequently amended on February 19, 2013 and relates to the common stock, par value $0.001 per share (“Common Stock”), of Cornerstone Therapeutics Inc., a corporation organized under the laws of the State of Delaware (the “Company”).  The principal executive office of the Company is located at 1255 Crescent Green Drive, Suite 250, Cary, North Carolina 27518. Information given in response to each item below shall be deemed incorporated by reference in all other items below.

 

Item 4.

Purpose of Transaction

 

Item 4 is hereby amended and supplemented by the addition of the following:

 

On September 15, 2013, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Chiesi and Chiesi US.  The Merger Agreement provides that, upon the terms and subject to the conditions set forth in the Merger Agreement, Chiesi US will merge with and into the Company, with the Company surviving the merger as a direct wholly-owned subsidiary of Chiesi (the “Merger”).

 

In the Merger, each share of the Company’s common stock that is issued and outstanding as of the Effective Time (as defined in the Merger Agreement), except for treasury stock, dissenting shares and shares held by Chiesi or its subsidiaries, will be converted into the right to receive $9.50 in cash (the “Merger Consideration”), without interest and subject to deduction for any required withholding taxes.  Subject to the terms and conditions of the Merger Agreement, vesting restrictions on restricted shares previously issued by the Company will be fully accelerated and, as a result, in the Merger such restricted shares will be treated in the same manner as other shares of common stock, subject to deduction for any required withholding taxes.  Subject to the terms and conditions of the Merger Agreement, each stock option will be accelerated to the extent not already fully exercisable and will be converted into the right to receive an amount equal to the Merger Consideration minus the exercise price of the option, without interest and subject to deduction for any required withholding taxes.

 

The Merger Consideration was determined as a result of negotiations between Chiesi and a special committee of independent directors of the Board of Directors of the Company (the “Special Committee”), with the assistance of separate financial advisors selected and retained by the Special Committee.

 

The Merger Agreement contains customary representations, warranties and covenants of the parties, including, among others, covenants by the Company (i) to conduct its business in the ordinary course during the period between the execution of the Merger Agreement and consummation of the Merger, (ii) not to engage in certain kinds of transactions during such period and (iii) to convene and hold a meeting of its stockholders for the purpose of obtaining the Stockholder Approvals (as defined below).  The Merger Agreement contains covenants by Chiesi to vote its shares in favor of the Merger and to leave the Special Committee in place through the completion of the Merger.

 

The Special Committee unanimously determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to and in the best interests of the stockholders of the Company other than Chiesi and its affiliates, and that it is advisable for the Company to enter into the

 

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Merger Agreement.  The Special Committee also unanimously recommended that the Company’s Board of Directors approve and declare advisable the Merger Agreement and the transactions contemplated thereby and determine to recommend that the stockholders of the Company vote to adopt the Merger Agreement.  Based on the Special Committee’s recommendation, the Board (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to, and in the best interests of, the Company’s stockholders, (ii) approved and declared advisable the Merger Agreement and the transactions contemplated thereby, including the Merger, and (iii) resolved to recommend that the Company’s stockholders vote to adopt the Merger Agreement.

 

Stockholders of the Company will be asked to vote on the adoption of the Merger Agreement at a special stockholders meeting that will be held on a date to be announced.  The consummation of the Merger is subject to the condition that the Merger Agreement be adopted by the affirmative vote (in person or by proxy) in favor of the adoption of the Merger Agreement of (i) the holders of at least a majority of the outstanding shares of common stock and (ii) the holders of at least a majority of all outstanding shares of common stock not owned, directly or indirectly, by Chiesi or Chiesi US or any of their affiliates, any other officers and directors of the Company, any other person having any equity interest in, or any right to acquire any equity interest in, Chiesi US, or any person of which Chiesi US is a direct or indirect subsidiary (together, the “Stockholder Approvals”).  Consummation of the Merger is also subject to other customary conditions regarding the absence of any law, injunction or judgment that prohibits or makes illegal the consummation of the Merger and obtaining all required regulatory consents.  Each party’s obligation to consummate the Merger is also subject to additional conditions regarding the accuracy of the other party’s representations and warranties contained in the Merger Agreement (subject to certain materiality qualifiers) and the other party’s compliance with its covenants in the Merger Agreement (subject to certain materiality qualifiers).  The Merger Agreement does not contain a financing condition.

 

Craig A. Collard (who is the Chairman and Chief Executive Officer of the Company) and an entity controlled by him have entered into a Voting Agreement with the Company, Chiesi and Chiesi US (the “Voting Agreement”) under which they have agreed to vote their shares of the Company’s common stock in favor of the Merger.

 

The foregoing descriptions of the Merger Agreement and Voting Agreement and the transactions contemplated thereby are not complete and are subject to and qualified in their entirety by reference to the Merger Agreement and the Voting Agreement, copies of which are attached hereto as Exhibits 14 and 15, respectively, and are incorporated herein by reference.

 

Item 5.

Interest in Securities of the Company

 

Item 5(a) — (b) is hereby amended and restated in its entirety as follows:

 

(a) — (b) As of the date of this Schedule 13D/A, Chiesi beneficially owns 20,024,080 shares of Common Stock, representing approximately 64.2% of the Company’s issued and outstanding shares of Common Stock.  The 20,024,080 shares of Common Stock include: (a) 4,226,542 shares of Common Stock that are exercisable within 60 days, of which Chiesi will have sole power to vote and dispose, (b) 15,687,538 shares held by Chiesi US of which Chiesi may be deemed to share voting and dispositive power by virtue of its status as the sole stockholder of Chiesi US and (c) options to purchase 110,000 shares of Common Stock that are exercisable within 60 days of the date of this filing, held by certain directors of the Company, who are designees of Chiesi, and also serve as officers or directors of Chiesi, of which Chiesi may be deemed to possess shared power to vote and dispose.  As of the date of this Schedule 13D/A, Chiesi US beneficially owns 15,687,538 shares of Common Stock, representing approximately 58.4% of the Company’s issued and outstanding shares of Common Stock.  Chiesi US may be deemed to share voting and dispositive power in connection with the 15,687,538 shares of Common Stock with Chiesi by

 

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virtue of Chiesi US’s status as a wholly-owned subsidiary of Chiesi.  All calculations made in this paragraph were made in accordance with Rule 13d-3(d) of the Securities Exchange Act of 1934, as amended, and were calculated based on 26,840,834 shares of Common Stock outstanding as of August 1, 2013 (as reported in the Company’s 10-Q filed August 6, 2013).

 

To the knowledge of the Filing Persons and other than as set forth above, no other shares of Common Stock are beneficially owned by any of the individuals or entities named in Schedule A to this Schedule 13D.

 

Item 6.

Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer

 

The information set forth under Item 4 above is incorporated into this Item 6 by reference.

 

Item 7.

Material to Be Filed as Exhibits

 

Exhibit No.		Description of Document
Exhibit 14		Agreement and Plan of Merger, dated as of September 15, 2013, by and among Chiesi Farmaceutici S.p.A., Chiesi U.S. Corporation and Cornerstone Therapeutics Inc. (incorporated by reference to Exhibit 2.1 of Cornerstone Therapeutics Inc.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on September 16, 2013).
Exhibit 15		Voting Agreement, dated as of September 15, 2013, by and among Chiesi Farmaceutici S.p.A., Chiesi U.S. Corporation, Cornerstone Therapeutics Inc., Craig A. Collard and Cornerstone Biopharma Holdings, Ltd.

 

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SIGNATURE

 

After reasonable inquiry and to the best of the knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Dated: September 16, 2013

 

	Chiesi Farmaceutici SpA
	By:	/s/ Ugo Di Francesco
		Name:	Ugo Di Francesco
		Title:	CEO
	Chiesi U.S. Corporation
	By:	/s/ Ugo Di Francesco
		Name:	Ugo Di Francesco
		Title:	President

 

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Exhibit 99.15

 

VOTING AGREEMENT

 

This VOTING AGREEMENT (“Agreement”) is made as of September 15, 2013, among Chiesi Farmaceutici S.p.A., an Italian company (“Parent”), Chiesi U.S. Corporation, a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), Cornerstone Therapeutics Inc, a Delaware corporation (the “Company”) and each of the undersigned stockholders of the Company (each a “Stockholder” and together, the “Stockholders”).

 

RECITALS:

 

WHEREAS, concurrently with the execution and delivery of this Agreement, Parent, Merger Sub and the Company are entering into an Agreement of Plan of Merger of even date herewith (as the same may be amended from time to time, the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company, and the Company will become a wholly owned subsidiary of Parent (the “Merger”);

 

WHEREAS, as of the date hereof, each Stockholder is the Beneficial Owner (as defined below) of Subject Shares (as defined below); and

 

WHEREAS, in order to induce Parent and Merger Sub to enter into the Merger Agreement, each Stockholder has agreed to enter into this Agreement.

 

NOW, THEREFORE, in consideration of the foregoing premises and of the covenants and agreements set forth herein and in the Merger Agreement, and intending to be legally bound hereby, the parties agree as follows:

 

1.                                      Definitions.

 

(a)                                 “Beneficially Own” or “Beneficial Owner” with respect to any securities means having “beneficial ownership” as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

(b)                                 “Company Capital Stock” means shares of common stock, par value $0.001 per share, of the Company and preferred stock, par value $0.001 per share, of the Company.

 

(c)                                  “Company Options and Other Rights” means options, warrants and other rights to acquire, directly or indirectly, shares of Company Capital Stock.

 

(d)                                 “Expiration Date” means the earlier to occur of (i) the Effective Time (as defined in the Merger Agreement) or (ii) the date on which the Merger Agreement is terminated pursuant to its terms.

 

(e)                                  “Subject Shares” means, with respect to each Stockholder, (i) all shares of Company Capital Stock Beneficially Owned by such Stockholder as of the date of this Agreement; and (ii) all additional shares of Company Capital Stock of which such Stockholder

 

 

acquires Beneficial Ownership during the period from the date of this Agreement through the Expiration Date.

 

2.                                      Voting.

 

(a)                                 Each Stockholder hereby agrees that, prior to the Expiration Date, at any meeting of the stockholders of the Company, however called and at every adjournment and postponement thereof, and in any written action by consent of stockholders of the Company, unless otherwise directed in writing by Parent, such Stockholder shall cause to be counted as present thereat for purposes of establishing a quorum and shall vote, or cause to be voted, any and all Subject Shares as of the record date of such meeting or written consent:

 

(i)                                     in favor of the Merger, the execution and delivery by the Company of the Merger Agreement and the adoption and approval of the Merger Agreement and the terms thereof, in favor of each of the other actions contemplated by the Merger Agreement and in favor of any action in furtherance of any of the foregoing;

 

(ii)                                  against any action or agreement that would result or could reasonably be expected to result in a breach of any representation, warranty, covenant or obligation of the Company in the Merger Agreement; and

 

(iii)                               against the following actions (other than the Merger and the transactions contemplated by the Merger Agreement): (A) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (B) any sale, lease, sublease, license, sublicense or transfer of a material portion of the rights or other assets of the Company or any subsidiary of the Company; (C) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (D) any change in the individuals who serve as members of the board of directors of the Company; (E) any amendment to the Company’s certificate of incorporation or bylaws; (F) any material change in the capitalization of the Company or the Company’s corporate structure; and (G) any other action which is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement or this Agreement.

 

(b)                                 Prior to the Expiration Date, no Stockholder shall enter into any agreement or understanding with any Person to vote or give instructions in any manner inconsistent with clause “(i),” clause “(ii)” or clause “(iii)” of this Section 2(a).

 

(c)                                  Each Stockholder hereby waives and agrees not to exercise any applicable “appraisal rights” under the Delaware General Corporation Law with respect to the Subject Shares in connection with the Merger and the Merger Agreement.

 

3.                                      Grant of Proxy; Appointment of Proxy.

 

(a)                                 In furtherance of the transactions contemplated hereby and by the Merger Agreement, and in order to secure the performance by each Stockholder of such Stockholder’s duties under this Agreement, such Stockholder, concurrently with the execution of this

 

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Agreement, shall execute, in accordance with the provisions of applicable Delaware law, and deliver to Parent an irrevocable proxy, substantially in the form of Annex A hereto, and irrevocably appoint Parent or its designees, and each of them individually, with full power of substitution and resubstitution, such Stockholder’s attorney-in-fact and proxy to vote, or, if applicable, to give consent with respect to, all of the Subject Shares as of the record date of such vote or consent in respect of any of the matters set forth in, and in accordance with the provisions of, Section 2(a) (the “Proxy”).

 

(b)                                 Each Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Proxy.  Each Stockholder hereby affirms that the Proxy set forth in this Section 3 is given to secure the performance of the duties of such Stockholder under this Agreement.  Each Stockholder hereby affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked prior to the Expiration Date.  Each Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof.

 

(c)                                  With respect to the Stockholders, the Stockholders and the Company hereby waive, solely with respect to this Agreement, Section 4.1 of the Company’s 2009 Stockholders Agreement (the “Stockholders’ Agreement”), which Stockholders Agreement shall be terminated in connection with the consummation of the Merger and each Stockholder hereby revokes any and all prior proxies or powers of attorney given by such Stockholder prior to the date of this Agreement with respect to the voting of the Subject Shares and agrees not to grant any subsequent proxies or powers of attorney on or following the date of this Agreement with respect to the voting of the Subject Shares until the Expiration Date.

 

(d)                                 Each Stockholder shall, at such Stockholder’s own expense, perform such further acts and execute such further proxies and other documents and instruments as may reasonably be required to vest in Parent the power to carry out and give effect to the provisions of this Agreement.

 

4.                                      Covenants of Stockholders.  Each Stockholder covenants and agrees for the benefit of Parent that, until the Expiration Date, such Stockholder will not:

 

(a)                                 sell, transfer, pledge, hypothecate, encumber, assign, tender or otherwise dispose of, or enter into any contract, option or other arrangement or understanding (whether written or oral) with respect to the sale, transfer, pledge, hypothecation, encumbrance, assignment, tender or other disposition of, (i) any Subject Shares or any interest therein, or (ii) any Company Options and Other Rights or any interest therein; provided, however, that such Stockholder may convert, exercise or exchange Company Options and Other Rights into or for shares of Company Capital Stock in which event such shares of Capital Stock shall become and be deemed Subject Shares subject to all the terms and conditions of this Agreement;

 

(b)                                 other than the Proxy, grant any powers of attorney or proxies or consents in respect of any of the Subject Shares, deposit any of such Subject Shares into a voting trust, or enter into a voting agreement with respect to any of such Subject Shares; and

 

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(c)                                  take any other action with respect to the Subject Shares that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or the transactions contemplated hereby and the Merger Agreement.

 

5.                                      Representations and Warranties of Stockholders.  Each Stockholder represents and warrants to Parent as follows:

 

(a)                                 As of the date of this Agreement and at all times through the Expiration Date:

 

(i)                                     Such Stockholder is and will be the Beneficial Owner (free and clear of any encumbrances or restrictions) of the outstanding shares of Company Capital Stock set forth across from the heading “Shares of Company Capital Stock Beneficially Owned” below such Stockholders’ name on the signature page hereof.

 

(ii)                                  Such Stockholder is and will be the Beneficial Owner (free and clear of any encumbrances or restrictions) of the outstanding Company Options and Other Rights set forth across from the heading “Company Options and Other Rights Beneficially Owned” below such Stockholders’ name on the signature page hereof (except to the extent that such Company Options and Other Rights are converted into, exercised or exchanged for shares of Company Capital Stock); and

 

(iii)                               Such Stockholder does not directly or indirectly Beneficially Own any shares of Company Capital Stock or Company Options or Other Rights or other securities of the Company, other than the shares of Company Capital Stock and Company Options and Other Rights set forth below such Stockholders’ name on the signature page hereof.

 

(b)                                 Such Stockholder has and will have the legal capacity, power and authority to enter into and perform all of such Stockholder’s obligations under this Agreement and the Proxy.  This Agreement has been duly executed and delivered by such Stockholder and, if such Stockholder is a corporation or partnership, has been duly authorized by all requisite corporate or partnership action of such Stockholder, as the case may be, and upon its execution and delivery by Parent, will constitute a legal, valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to creditors rights generally, and the availability of injunctive relief and other equitable remedies.

 

(c)                                  The execution, delivery and performance by such Stockholder of this Agreement will not (i) conflict with, require a consent, waiver or approval under, or result in a breach of or default under, any of the terms of any contract, commitment or other obligation (written or oral) to which such Stockholder is a party or by which any of such Stockholder’s assets may be bound, and, if such Stockholder is a corporation or partnership, the organizational documents of such Stockholder, or (ii) violate any order, writ injunction, decree, judgment, order, statute, rule or regulation applicable to such Stockholder or any of its assets.

 

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(d)                                 No filing with, and no permit, authorization, consent or approval of, any state or federal public body or authority is necessary for the execution of this Agreement by such Stockholder and the consummation by such Stockholder of the transactions contemplated hereby.

 

6.                                      Adjustments; Additional Shares.  In the event (a) of any stock dividend, stock split, merger, recapitalization, reclassification, combination, exchange of shares or the like of the capital stock of the Company on, of or affecting the Subject Shares or (b) that a Stockholder shall become the Beneficial Owner of any additional shares of Company Capital Stock or other securities entitling the holder thereof to vote or give consent with respect to the matters set forth in Section 2(a), then the terms of this Agreement shall apply to the shares of Company Capital Stock or other instruments or documents held by such Stockholder immediately following the effectiveness of the events described in clause (a) or such Stockholder becoming the Beneficial Owner thereof as described in clause (b), as though, in either case, they were Subject Shares hereunder.

 

7.                                      Amendments and Waivers.  Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement, or in the case of a waiver, by the party against whom the waiver is to be effective.  No failure or delay by any party in exercising any right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  To the maximum extent permitted by applicable law, (a) no waiver that may be given by a party shall be applicable except in the specific instance for which it was given and (b) no notice to or demand on one party shall be deemed to be a waiver of any obligation of such party or the right of the party giving such notice or demand to take further action without notice or demand.

 

8.                                      Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either party hereto (whether by operation of law or otherwise) without the prior written consent of the other party.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.  Any purported assignment not permitted under this Section 8 shall be null and void.

 

9.                                      Entire Agreement.  This Agreement and the documents, instruments and other agreements specifically referred to herein or delivered pursuant hereto, set forth the entire understanding of the parties with respect to the subject matter hereof.  Any and all previous agreements and understandings between or among the parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement.

 

10.                               Notices.  Any notice, request, demand, waiver, consent, approval or other communication which is required or permitted hereunder shall be in writing and shall be deemed given (a) on the date established by the sender as having been delivered personally; (b) on the date delivered by a private courier as established by the sender by evidence obtained from the courier; (c) on the date sent by facsimile or electronic mail, with confirmation of transmission, if sent during normal business hours of the recipient, if not, then on the next business day; or (d) on the fifth day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.  Such communications, to be valid, must be addressed as follows:

 

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If to Parent or Merger Sub, to:

 

Chiesi Farmaceutici S.p.A.

Via Palermo 26/A

43122 Parma, Italy

Attn: Marco Vecchia

Facsimile: +39 0521 774468

 

With a required copy to:

 

Morgan, Lewis & Bockius LLP

101 Park Avenue

New York, NY 10178

Attn:              Steven A. Navarro

Emilio Ragosa

Facsimile: (212) 309-6001

 

If to Company, to:

 

Cornerstone Therapeutics Inc.

1255 Crescent Green Drive, Suite 250

Cary, NC 27518

Attn: Craig A. Collard

Facsimile: (919) 678-6599

 

With a required copy to:

 

Clifford Chance LLP

51 West 52nd Street

New York, NY 10019

Attn: John Healy

Facsimile: (212) 878-8375

 

If to a Stockholder, to the address set forth below such Stockholder’s name on the signature page hereto.

 

or to such other address or to the attention of such person or persons as the recipient party has specified by prior written notice to the sending party (or in the case of counsel, to such other readily ascertainable business address as such counsel may hereafter maintain).  If more than one method for sending notice as set forth above is used, the earliest notice date established as set forth above shall control.

 

11.                               Captions.  All captions contained in this Agreement are for convenience of reference only, do not form a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement.

 

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12.                               Counterparts.  This Agreement may be executed in two or more consecutive counterparts (including by facsimile, or “.pdf” transmission), each of which shall be deemed to 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 (electronically or otherwise) to the other parties.

 

13.                               Severability; Enforcement.  Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction.  If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.

 

14.                               Specific Performance.  Stockholder acknowledges that the agreements contained in this Agreement are an integral part of the transactions contemplated by the Merger Agreement, and that, without these agreements, Parent would not enter into the Merger Agreement, and acknowledges that damages would be an inadequate remedy for any breach by Stockholder of the provisions of this Agreement.  Accordingly, Stockholder agrees that Stockholder’s obligations hereunder shall be specifically enforceable and Stockholder shall not take any action to impede the other from seeking to enforce such right of specific performance.

 

15.                               Consent to Jurisdiction.  Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery, or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware, or, if both the Delaware Court of Chancery and the federal courts within the State of Delaware decline to accept jurisdiction over a particular matter, any other state court within the State of Delaware, and, in each case, any appellate court therefrom.  Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and 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 the aforesaid courts.  Each of the parties hereto hereby irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with this Section 15, (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by the applicable law, any claim that (x) the suit, action or proceeding in such court is brought in an inconvenient forum, (y) the venue of such suit, action or proceeding is improper or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.  Each of the parties hereto agrees that service of process upon such party in any such action or proceeding shall be effective if such process is given as a notice in accordance with Section 10.  EACH OF THE PARTIES TO THIS AGREEMENT HEREBY

 

7

 

IRREVOCABLY WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY DIRECT OR INDIRECT ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREIN.  EACH PARTY (A) CERTIFIES THAT 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, (B) MAKES THIS WAIVER VOLUNTARILY, AND (C) ACKNOWLEDGES THAT EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.

 

16.                               Governing Law.  This Agreement and all claims or causes of action (whether in tort, contract or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement) shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

8

 

IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto all as of the day and year first above written.

 

	CHIESI FARMACEUTICI S.P.A.
	By:	/s/ Giacomo Chiesi
	Name: Giacomo Chiesi
	Title: Director and Business Development Manager
	CHIESI U.S. CORPORATION
	By:	/s/ Danilo Piroli
	Name: Danilo Piroli
	Title: Vice President
	CORNERSTONE THERAPEUTICS INC.
	By:	/s/ Craig A. Collard
	Name: Craig A. Collard
	Title: Chief Executive Officer

 

[Signature Page to Voting Agreement]

 

 

	STOCKHOLDER
	/s/ Craig A. Collard
	Craig A. Collard
Address
Shares of Company Capital Stock Beneficially Owned:	1,612,225
Company Options and Other Rights Beneficially Owned:	725,699
	STOCKHOLDER
	CORNERSTONE BIOPHARMA HOLDINGS, LTD.
	By:	/s/ Craig A. Collard
	Name: Craig A. Collard
	Title: President and Chief Executive Officer
Address
Shares of Company Capital Stock Beneficially Owned:	1,567,225
Company Options and Other Rights Beneficially Owned:	0

 

[Signature Page to Voting Agreement]

 

 

ANNEX A

 

IRREVOCABLE PROXY

 

Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Voting Agreement, dated as of September 15, 2013, among Chiesi Farmaceutici S.p.A., an Italian company (“Parent”), Chiesi U.S. Corporation, a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), Cornerstone Therapeutics Inc, a Delaware corporation (the “Company”) and each of the stockholders of the Company signatory thereto (each a “Stockholder” and together, the “Stockholders”) (the “Voting Agreement”).  A copy of the Voting Agreement is attached hereto and is incorporated by reference herein.

 

This Proxy is given to secure the performance of the duties of the undersigned Stockholder pursuant to the Voting Agreement and is granted in consideration of Parent entering into the Merger Agreement.

 

The undersigned Stockholder hereby irrevocably appoints Parent and Merger Sub, and each of them individually, the sole and exclusive attorneys-in-fact, agents and proxies, with full power of substitution and resubstitution in each of them, for the undersigned Stockholder and in the name, place and stead of the undersigned Stockholder, to vote or, if applicable, to give written consent, with respect to, all Subject Shares and which the undersigned Stockholder is or may be entitled to vote at any meeting of the Company held after the date hereof, whether annual or special and whether or not an adjourned meeting, or, if applicable, to give written consent with respect thereto, in accordance with the provisions of Section 2(a) of the Voting Agreement as follows:

 

(i)                                     in favor of the Merger, the execution and delivery by the Company of the Merger Agreement and the adoption and approval of the Merger Agreement and the terms thereof, in favor of each of the other actions contemplated by the Merger Agreement and in favor of any action in furtherance of any of the foregoing;

 

(ii)                                  against any action or agreement that would result in a breach of any representation, warranty, covenant or obligation of the Company in the Merger Agreement; and

 

(iii)                               against the following actions (other than the Merger and the transactions contemplated by the Merger Agreement): (A) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (B) any sale, lease, sublease, license, sublicense or transfer of a material portion of the rights or other assets of the Company or any subsidiary of the Company; (C) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (D) any change in the individuals who serve as members of the board of directors of the Company; (E) any amendment to the Company’s certificate of incorporation or bylaws; (F) any material change in the capitalization of the Company or the Company’s corporate structure; and (G) any other action which is intended, or could reasonably be expected, to impede,

 

 

interfere with, delay, postpone, discourage or adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement or this Agreement.

 

This Proxy is coupled with an interest, shall be irrevocable to the fullest extent permitted by law and shall be binding on any successor in interest of the undersigned Stockholder. This Proxy shall not be terminated by operation of law upon the occurrence of any event, including, without limitation, the death or incapacity of the undersigned Stockholder.

 

This Proxy shall operate to revoke any prior proxy as to the Subject Shares heretofore granted by the undersigned Stockholder with respect to the subject matter of the Voting Agreement and the Merger Agreement.

 

This Proxy shall terminate on the Expiration Date.

 

 

SIGNATURE TO IRREVOCABLE PROXY

 

 

	STOCKHOLDER
	/s/ Craig A. Collard
	Craig A. Collard
	Date:	9/15/13

 

 

ANNEX A

 

IRREVOCABLE PROXY

 

Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Voting Agreement, dated as of September 15, 2013, among Chiesi Farmaceutici S.p.A., an Italian company (“Parent”), Chiesi U.S. Corporation, a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), Cornerstone Therapeutics Inc, a Delaware corporation (the “Company”) and each of the stockholders of the Company signatory thereto (each a “Stockholder” and together, the “Stockholders”) (the “Voting Agreement”).  A copy of the Voting Agreement is attached hereto and is incorporated by reference herein.

 

This Proxy is given to secure the performance of the duties of the undersigned Stockholder pursuant to the Voting Agreement and is granted in consideration of Parent entering into the Merger Agreement.

 

The undersigned Stockholder hereby irrevocably appoints Parent and Merger Sub, and each of them individually, the sole and exclusive attorneys-in-fact, agents and proxies, with full power of substitution and resubstitution in each of them, for the undersigned Stockholder and in the name, place and stead of the undersigned Stockholder, to vote or, if applicable, to give written consent, with respect to, all Subject Shares and which the undersigned Stockholder is or may be entitled to vote at any meeting of the Company held after the date hereof, whether annual or special and whether or not an adjourned meeting, or, if applicable, to give written consent with respect thereto, in accordance with the provisions of Section 2(a) of the Voting Agreement as follows:

 

(i)                                     in favor of the Merger, the execution and delivery by the Company of the Merger Agreement and the adoption and approval of the Merger Agreement and the terms thereof, in favor of each of the other actions contemplated by the Merger Agreement and in favor of any action in furtherance of any of the foregoing;

 

(ii)                                  against any action or agreement that would result in a breach of any representation, warranty, covenant or obligation of the Company in the Merger Agreement; and

 

(iii)                               against the following actions (other than the Merger and the transactions contemplated by the Merger Agreement): (A) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (B) any sale, lease, sublease, license, sublicense or transfer of a material portion of the rights or other assets of the Company or any subsidiary of the Company; (C) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (D) any change in the individuals who serve as members of the board of directors of the Company; (E) any amendment to the Company’s certificate of incorporation or bylaws; (F) any material change in the capitalization of the Company or the Company’s corporate structure; and (G) any other action which is intended, or could reasonably be expected, to impede,

 

 

interfere with, delay, postpone, discourage or adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement or this Agreement.

 

This Proxy is coupled with an interest, shall be irrevocable to the fullest extent permitted by law and shall be binding on any successor in interest of the undersigned Stockholder. This Proxy shall not be terminated by operation of law upon the occurrence of any event, including, without limitation, the death or incapacity of the undersigned Stockholder.

 

This Proxy shall operate to revoke any prior proxy as to the Subject Shares heretofore granted by the undersigned Stockholder with respect to the subject matter of the Voting Agreement and the Merger Agreement.

 

This Proxy shall terminate on the Expiration Date.

 

 

SIGNATURE TO IRREVOCABLE PROXY

 

 

	STOCKHOLDER
	CORNERSTONE BIOPHARMA HOLDINGS, LTD.
	By:	/s/ Craig A. Collard
	Name:		Craig A. Collard
	Title:		President and Chief Executive Officer
	Date:		9/15/13