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On
March 31, 2008, the Company entered into the Merger Agreement described in
Item 4 above. Pursuant to the Voting
Agreement entered into in conjunction with the Merger Agreement, Mr. Murphy
has agreed to vote his shares (the “Subject Shares”) in favor of the
Merger. The Subject Shares together
with all options held by Mr. Murphy that vest within 60 days of March 31,
2008 represent 5.0% of the Company’s outstanding capital stock as of March
29, 2008.
As
a result of the Voting Agreement, Mr. Murphy may be deemed to have shared
voting and dispositive powers with respect to the Subject Shares and Teva and
Acquisition Sub may be deemed to be beneficial owners of the Subject Shares.
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Pursuant
to the Voting Agreement, and subject to the terms and conditions contained
therein, Mr. Murphy has agreed that, prior to the termination of the Voting
Agreement, at any meeting of the stockholders of Bentley, however called, or
in connection with any written consent of, or any other action by, the
stockholders of Bentley given or solicited, Mr. Murphy shall vote, or provide
consent with respect to, all of the Subject Shares entitled to vote or to
consent thereon: (i) in favor of consummation of the Merger Agreement and the
transactions contemplated thereby (including, without limitation, the merger
and the spin-off) and (ii) against any Alternative Transaction (as defined in
the Voting Agreement) or any other action or agreement that would result in a
breach in any material respect of any covenant, representation or warranty or
any other obligation or agreement of Bentley under the Merger Agreement or
that is intended, or could reasonably be expected, to materially impede,
interfere with, delay postpone, discourage or adversely affect the
consummation of the Merger or the other transactions contemplated by the
Merger Agreement.
Furthermore,
except as provided for in the Voting Agreement, Mr. Murphy, has irrevocably
granted to and appointed Teva to be his proxy and attorney-in-fact (with full
power of substitution) to vote all the Subject Shares (owned of record) in
accordance with the provisions described above.
Also
pursuant to the Voting Agreement, and subject to the terms and conditions
contained therein, Mr. Murphy has agreed that until termination of the Voting
Agreement, Mr. Murphy shall (i) not take any action to subject any of the
Subject Shares that are beneficially owned by him to any lien, (ii) not (w)
transfer or agree to transfer, (x) solicit or encourage (including by way of
providing material nonpublic information) any proposal, (y) participate or
engage in discussions or negotiations, or (z) enter into any agreement or
arrangement in principal, in each case with respect to the transfer of any of
the Subject Shares that are beneficially owned by him or grant any proxy or
power-of-attorney with respect to any such Subject Shares, (iii) vote all of
the Subject Shares against any Alternative Transaction and (iv) use all
reasonable efforts to prevent any creditor in respect of any pledge of the
Subject Shares that are beneficially owned by Mr. Murphy from exercising his
rights under such pledge.
The
Voting Agreement provides that it will terminate upon the earliest of (i) the
effective time of the Merger, (ii) the termination of the Merger Agreement in
accordance with Section 8.1 thereof, (iii) the time of any modification to
the Merger Agreement that adversely affects Mr. Murphy in any material
respect, or (iv) written notice by Teva to Mr. Murphy of the termination of
the Voting Agreement. The Voting
Agreement is incorporated herein by reference and the foregoing summary is
qualified in its entirety by reference to the filed exhibit.
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Exhibit
1. Voting Agreement, dated as of March 31, 2008, by and among Teva
Pharmaceutical Industries Limited, Beryllium Merger Corporation, Michael
McGovern, James Murphy and Elizabeth McGovern.
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