EXHIBIT 10.22
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, made as of October 7, 1996 (the "Agreement")
by and among Bioseq, Inc., a Massachusetts corporation with a principal office
at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), all
of the shareholders of the Company identified on Exhibit A hereto (the "Existing
Stockholders"), Boston Biomedica, Inc., a Massachusetts corporation with a
principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Preferred Holder") and those additional holders of Preferred Stock and Common
Stock of the Company (the "Additional Holders") who may be added as parties
hereto from time to time in accordance with the terms of this Agreement. The
Existing Stockholders, the Preferred Holder and the Additional Holders are
hereinafter collectively referred to as "Holders."
WHEREAS, as of the date hereof the Preferred Holder has purchased an
aggregate of 300 shares of Series A Convertible Preferred Stock, $.01 par value
per share of the Company (the "Series A Preferred"), which is convertible into
common stock, $.01 par value per share of the Company ("Common Stock") in
accordance with the terms of the Company's Articles of Organization (the
"Charter"), pursuant to the terms of a Preferred Stock Purchase Agreement of
even date herewith (the "Purchase Agreement"); and
WHEREAS, the Preferred Holder is obligated and has an option to
purchase additional shares of the Series A Preferred, Series B Convertible
Preferred Stock, $.01 par value per share of the Company (the "Series B
Preferred") and Series C Convertible Preferred Stock, $.01 par value per share
of the Company (the "Series C Preferred," together, the Series A Preferred, the
Series B Preferred and the Series C Preferred are referred to herein as the
"Preferred Stock") pursuant to the terms of the Purchase Agreement and a certain
Warrant Agreement referenced therein; and
WHEREAS, the purchase and sale of the Preferred Stock as aforesaid has
been undertaken by the Company and the Preferred Holder in reliance on the
agreements of the parties hereto as hereinafter set forth; and
WHEREAS, the Company and the Holders wish to confirm their agreements
by entering into this Stockholders' Agreement, and each considers the provisions
contained herein to be in his, her or its best interest and in the best
interests of the Company;
NOW, THEREFORE, In consideration of the foregoing and the agreements
set forth below, the parties hereto agree as follows:
SECTION 1. BOARD OF DIRECTORS.
In all elections of Directors of the Company held during the term of
this Agreement (whether at a meeting or by written consent in lieu of a
meeting), each of the Holders unconditionally agrees to vote all shares of the
Company's Common Stock, Preferred Stock and any other equity securities of the
Company or securities of the Company having equity features,
now owned or hereafter acquired or controlled by the Holder, whether by
purchase, conversion of other securities, exercise of rights, warrants or
options, stock dividends or otherwise (collectively, the "Stock"), and otherwise
to use his or its respective best efforts to cause and maintain the election to
the Board of Directors of one nominee designated by the Preferred Holder.
The obligation of the Holders to vote their stock in favor of the
designee of the Preferred Holder shall terminate at such time as (a) the
Preferred Holder owns less than 25% of the Preferred Stock (calculated on an
as-if-converted basis, and including any shares of Common Stock into which the
Preferred Stock may have been converted) issued to it under the Purchase
Agreement, or (b) the Preferred Holder does not purchase the shares of Series B
Preferred referenced in Section 1.2 (ii) of the Stock Purchase Agreement in
accordance with the terms thereof.
SECTION 2. RIGHT OF FIRST REFUSAL ON DISPOSITIONS BY HOLDERS.
(a) No Holder shall sell, assign or otherwise transfer or agree to
sell, assign or otherwise transfer any shares of Stock held or beneficially
owned by such Holder to any third party (the "Proposed Transferee") other than a
Permitted Transferee as defined below, unless in each such case the Holder (an
"Offering Holder") shall have first offered to sell those shares (the "Offered
Shares"), in accordance with this Section 2, to all other Holders (collectively,
the "Offeree Holders"), on terms and conditions, including price, not less
favorable to the Offeree Holders than those on which the Offering Holder
proposes to sell such Offered Shares to the Proposed Transferee. Any sale,
assignment or other transfer contrary to the provisions of this Agreement shall
be void, and shall not be recorded on the Company's stock transfer records. In
the event of any attempt to make such a transfer, the Company shall continue to
treat the purported transferor as the owner of the Stock purported to be
transferred for all purposes, including without limitation, voting and dividend
rights.
(b) The Offering Holder shall give notice to the Company and to the
Offeree Holders in writing of the Offering Holder's intention to sell the
Offered Shares (the "Notification"), specifying the number of shares of Stock
proposed to be transferred and the price and terms of the proposed transfer (the
"Terms"), and offering to sell the Offered Shares to the Offeree Holders on the
Terms specified.
(c) Each Offeree Holder shall have the absolute right (subject to the
last sentence of this subsection (c)), by delivery of written notice to the
Company, the Offering Holder and each other Offeree Holder (as hereinafter
provided) to purchase that number of Offered Shares as shall be equal to the
number of Offered Shares multiplied by a fraction, the numerator of which shall
be the number of shares of Common Stock (including on an as-if-converted or
as-if-exercised basis any securities of the Company which are convertible into
or exercisable for Common Stock of the Company) then owned by such Offeree
Holder and the denominator of which shall be the aggregate number of shares of
Common Stock outstanding (including as outstanding any shares of Common Stock
issuable upon conversion or exercise of any outstanding securities of the
Company). The amount of Offered Shares that each Offeree Holder is entitled to
purchase under this Section 2(c) shall be referred to as its "Pro Rata
Fraction." Notwithstanding the foregoing,
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no Offeree Holder shall have the right to purchase any of the Offered Shares
unless all of the Offered Shares are subscribed for by the Offeree Holders under
this Section 2.
(d) The Offeree Holders shall have a right to oversubscription such
that if any Offeree Holder declines to purchase its Pro Rata Fraction, the other
Offeree Holders shall, among them, have the right to purchase the balance of the
Offered Shares not so purchased. Such right of oversubscription may be exercised
by an Offeree Holder by accepting the offer of the Offered Shares as to more
than its Pro Rata Fraction. If, as a result thereof, such oversubscriptions
exceed the total number of Offered Shares available in respect of such
oversubscription privilege, the oversubscribing Offeree Holders shall be reduced
with respect to their oversubscriptions on a pro rata basis in accordance with
their respective Pro Rata Fractions or as they may otherwise agree among
themselves.
(e) The notice to be provided by an Offeree Holder under Section 2(c)
hereof shall state the number of Offered Shares the Offeree Holder desires to
purchase. The notice shall be delivered in person or mailed to the Offering
Holder, the Company, and each other Offeree Holder within 10 days of the date of
the Notification. Such notice shall, when taken in conjunction with the
Notification, be deemed to constitute a valid, legally binding and enforceable
agreement for the sale and purchase of such Offered Shares (subject to the
aforesaid limitations as to an Offeree Holder's right to purchase more than its
Pro Rata Fraction and to the condition that all of the Offered Shares be fully
subscribed for by the Offeree Holders). Sales of the Offered Shares to be sold
to purchasing Offeree Holders pursuant to this Section 2 shall be made at the
offices of the Company on the 45th day following the date of the Notification
(or if such 45th day is not a business day, then on the next succeeding business
day). Such sales shall be effected by the Offering Holder's delivery to each
purchasing Offeree Holder of a certificate or certificates evidencing the
Offered Shares to be purchased by it, duly endorsed for transfer to such
purchasing Offeree Holder, against payment to the Offering Holder of the
purchase price therefor by such purchasing Offeree Holder.
(f) If the Offeree Holders do not subscribe to purchase all of the
Offered Shares, the Offering Holder shall not be required to sell any of the
Offered Shares to the Offeree Holders hereunder; and in such event all (but not
less than all) of the Offered Shares may be sold by the Offering Holder to the
Proposed Transferee at any time within 90 days after the date the Notification
was made, subject to the provisions of Section 2 and Section 3 hereof. Any such
sale shall be to the Proposed Transferee, at not less than the price and upon
other terms and conditions, if any, not more favorable to the Proposed
Transferee than the Terms specified in the Notification. If the Offered Shares
are not sold within the 90 day period, they shall again be subject to the
requirements of a prior offer pursuant to this Section 2. Subject to the
provisions of Section 3 hereof, if Offered Shares are sold pursuant to this
Section 2 to any purchaser who is not a party to this Agreement, the Offered
Shares so sold shall be subject to the restrictions imposed by this Section 2
with respect to any subsequent sales.
(g) Notwithstanding any other provisions of this Section 2, each Holder
shall be entitled to transfer, without compliance with this Section 2, shares of
Stock held by it:
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(i) to the trustees of a trust revocable by such Holder alone,
the beneficiaries of which consist solely of the Holder and transferees
enumerated in subsection (iv) below;
(ii) in the case of a Holder who is an individual, to his
guardian or conservator;
(iii) in the case of a deceased Holder, to his executors or
administrators or to trustees under his will;
(iv) in the case of a Holder who is an individual, or his
guardian, conservator or trustee under an inter vivos trust, or his executors,
administrators or trustees under his will, to the Holder's spouse, to any of his
children or their issue (or to custodians for the benefit of minor children or
issue) or to the Holder's parents or siblings;
(v) to its partners or other equity owners or to a liquidating
trust or similar entity established for the purpose of holding its assets prior
to distribution to its partners or other equity owners;
(vi) to any entity which is controlled by or under common
control with such Holder; or
(vii) in the case of any Holder who is or becomes an employee
of the Company, to the Company in accordance with written agreements entered
into in connection with the original issuance of Stock to such Holder (or the
grant of a right to acquire such Stock) giving the Company a right of first
refusal or a right to repurchase such Stock;
Each such transferee is referred to herein as a "Permitted Transferee." All such
Permitted Transferees (other than the Company pursuant to clause (vii) above)
shall remain subject to the terms of this Agreement and shall be deemed to be
"Holders" for purposes hereof.
SECTION 3. RIGHT TO PARTICIPATE IN SALES.
Upon compliance by an Offering Holder with the provisions of Section
2(a) through 2(c) hereby and prior to any transfer under Section 2(e) hereof,
the Offering Holder shall provide each Offeree with written notice (the
"Transfer Notice") of, and the opportunity to participate in, such transfer upon
the same terms as set forth in the original Notification under Section 2(b). Any
Offeree which elects to participate in such transfer shall notify the Offering
Holder not later than fifteen days after receipt of the Transfer Notice,
specifying the number of shares of Stock which such Offeree desires to transfer.
The Offering Holder will not transfer any shares of Stock pursuant to Section
2(e) in such transaction unless the transferee thereof at the same time
purchases from each Offeree Holder who elects to participate in the transfer as
aforesaid at least the lesser of (a) the number of shares of Stock set forth in
such Offeree Holder's notice to the Offering Holder or (b) that number of shares
computed by multiplying the total number of shares of Stock to which the
proposed transfer relates by a fraction, the numerator of which is the aggregate
number of shares of Stock owned by such Offeree Holder and the denominator of
which is the aggregate number of shares of Stock outstanding. Notwithstanding
the foregoing, at
all times during the term of this agreement Boston Biomedica, Inc. shall be
permitted, should it elect to do so in accordance with the notice provisions of
this Section 3, to sell a number of shares of stock pursuant to this Section 3
which is not less than the largest number of shares being sold pursuant hereto
by any of BioMolecular Assays, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, and
the number of shares being sold by all such parties shall be reduced on a pro
rata basis to accommodate the foregoing entitlement.
SECTION 4. MISCELLANEOUS.
Section 4.1. Specific Performance; Other Rights. The Company and the
Holders recognize that the rights of the parties under this Agreement are
unique, and accordingly the Holders shall, in addition to such other remedies as
may be available to any of them at law or in equity, have the right to enforce
their rights hereunder by actions for injunctive relief and specific performance
to the extent permitted by law. Without limiting the generality of the
foregoing, if any transfer of shares of Stock of a Holder is made or attempted
to be made in contravention of the provisions of this Agreement, the other
Holders shall have the right to enforce their rights hereunder by actions for
injunctive relief and specific performance to the extent permitted by law.
Except as provided herein, this Agreement is not intended to limit or abridge
any rights of the parties which may exist apart from this Agreement.
Section 4.2. Stock Legend. Each certificate for shares of Stock subject
to this Agreement shall have endorsed, stamped or written thereon a legend which
shall read substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
TRANSFER RESTRICTIONS AND OTHER PROVISIONS OF A CERTAIN STOCKHOLDERS' AGREEMENT
DATED AS OF OCTOBER 7, 1996 (COPIES OF WHICH ARE AVAILABLE AT THE OFFICES OF THE
COMPANY FOR EXAMINATION)."
Section 4.3. Termination. This Agreement shall terminate on the
earliest to occur of (a) the closing of the sale of shares of Common Stock of
the Company in a Qualified Public Offering, as defined in the Purchase Agreement
(and shall not apply to any Stock being sold as part of such offering) and (b)
such time as none of the Preferred Stock is outstanding.
Section 4.4. Notices, Etc. All notices and other communications
hereunder shall be in writing and shall be deemed to have been given when
delivered or sent by overnight courier or mailed by certified mail, postage
prepaid, addressed (a) if to the Company, to the Chief Executive Officer at the
address first set forth above, with a copy to Warner & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire; (b) if to
any Holder, to the address set below its name on Exhibit A hereto; and (c) if to
any other person who becomes subject to the terms of this Agreement, to his
address as the same may appear in the records of the Company, and to the
Company. Each of the parties may change his, her or its notice address as
referenced above by notice to each of the other parties delivered as aforesaid.
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Section 4.5. Entire Agreement. The parties hereto agree that this
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements and understandings
between them as to such subject matter.
Section 4.6. Waivers and Further Agreements. Any waiver of any terms or
conditions of this Agreement shall not be effective unless given in a writing
signed by the party against whom such waiver is sought to be enforced, nor shall
it operate as a waiver of any other breach of such terms or conditions or any
other term or condition, nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or of any other provision hereof. No such
waiver, unless it by its own terms explicitly provides to the contrary, shall be
construed to effect a continuing waiver of the provision being waived, and no
such waiver in any instance shall constitute a waiver in any other instance or
for any other purpose or impair the right of the party against whom such waiver
is claimed in all other instances or for all other purposes to require full
compliance with such provision.
Section 4.7. Further Assurances. Each of the parties hereto agrees to
execute all such further instruments and documents and to take all such further
action as the other party may reasonably require in order to effectuate the
terms and purposes of this Agreement.
Section 4.8. Amendments. This Agreement may not be amended, nor shall
any waiver be effected except by an instrument in writing executed by the
holders of a majority of the Stock, which vote shall include the holders of a
majority of the Preferred Stock (on an as-if-converted basis, and including
shares of Common Stock into which any Preferred Stock may have been converted)
then owned or controlled by a Holder hereunder.
Section 4.9. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, legal representatives, successors and permitted assigns.
Section 4.10. Severability. If any provision of this Agreement shall be
held or deemed to be invalid, inoperative or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, or in all jurisdictions or
in all cases, because of the conflict of any provision with any constitution or
statute or rule of public policy or for any other reason, such circumstance
shall not have the effect of rendering the provision or provisions in question,
invalid, inoperative or unenforceable in any other jurisdiction or in any other
case or circumstance or of rendering any other provision or provisions herein
contained invalid, inoperative or unenforceable to the extent that such other
provisions are not themselves actually in conflict with such constitution,
statute or rule of public policy, but this Agreement shall be reformed and
construed in any such jurisdiction or case as if such invalid, inoperative or
unenforceable provision had never been contained herein, and such provision
shall be reformed so that it would be valid, operative and enforceable to the
maximum extent permitted in such jurisdiction or in such case.
Section 4.11. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute
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one and the same instrument, and in pleading or proving any provision of this
Agreement, it shall not be necessary to produce more than one of such
counterparts.
Section 4.12. Additional Parties. The Company may issue additional
shares of Preferred Stock to persons or entities not initially parties to this
Agreement (the Additional Holders) under the terms of the Purchase Agreement.
Each Additional Holder shall execute a counterpart of this Agreement, and upon
such execution this agreement, including Exhibit A hereto which shall be
modified accordingly and distributed to each Holder hereunder, shall be deemed
to have been amended to add such additional Holder as a party hereto with all
rights and obligations of the other Holders hereunder.
Section 4.13. Section Headings. The headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
Section 4.14. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the Commonwealth of
Massachusetts.
THIS SPACE LEFT INTENTIONALLY BLANK.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed under seal as of the date first above written.
THE COMPANY: BIOSEQ, INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and CEO
THE PREFERRED HOLDER: BOSTON BIOMEDICA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President and CEO
THE EXISTING HOLDERS: BIOMOLECULAR ASSAYS, INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and CEO
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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G&G Diagnostics Limited Partnership II
EXHIBIT A
Number and Type of Shares
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Names & Addresses Common Stock Series A Preferred Other
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THE EXISTING STOCKHOLDERS:
BioMolecular Assays, Inc.
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G&G Diagnostics Limited Partnership II 100
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