Exhibit 2
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of January 7, 2002 (this
"AGREEMENT"), is by and between DECODE GENETICS, INC., a Delaware corporation
("BUYER"), SAGA ACQUISITION CORP., a Delaware corporation and a wholly owned
subsidiary of Buyer ("MERGER SUB"), on the one hand, and XXXXXXX X. XXXXXX,
PH.D. (the "PRINCIPAL STOCKHOLDER"), an individual and a stockholder of
MediChem Life Sciences, Inc., a Delaware corporation (the "COMPANY"), on the
other hand.
WHEREAS, Buyer, Merger Sub and the Company, are, concurrently with
the execution hereof, entering into an Agreement and Plan of Merger, dated as of
January 7, 2002 (the "MERGER AGREEMENT"), pursuant to which, upon the terms and
subject to the conditions set forth in the Merger Agreement, Merger Sub will
merge with and into the Company, with the Company being the surviving
corporation (the "MERGER");
WHEREAS, the Principal Stockholder is the record and/or beneficial
owner, as of the date of this Agreement, of such number of shares of common
stock of the Company, par value $0.01 per share (the "COMPANY COMMON STOCK"), as
is set forth opposite his name on Schedule I attached hereto (collectively, the
"OWNED SHARES"). All such Owned Shares, together with any shares of capital
stock or other voting securities of the Company, beneficial ownership of which
is directly or indirectly acquired by the Principal Stockholder after the date
hereof, including, without limitation, shares received pursuant to any stock
splits, stock dividends or distributions, shares acquired by purchase or upon
the exercise, conversion or exchange of any option, warrant or convertible
security or otherwise, and shares or any voting securities of the Company
received pursuant to any change in the capital stock of the Company by reason of
any recapitalization, merger, reorganization, consolidation, combination,
exchange of shares or the like, are referred to herein as the "SHARES." For
purposes of this Agreement, "beneficial ownership" shall have the meaning set
forth in Rule 13d-3 under the Exchange Act;
WHEREAS, each of the parties hereto desires to enter into this
Agreement to provide for, among other things, (1) the obligation of the
Principal Stockholder to vote, or cause the record holder of the Shares to vote,
all of the Shares beneficially owned by the Principal Stockholder (other than
Shares subject to unexercised options) (the "VOTING SHARES") in the manner
specified herein and (2) certain restrictions on the sale or the transfer of the
record and beneficial ownership of Shares by the Principal Stockholder; and
WHEREAS, the Principal Stockholder acknowledges that Buyer, Merger
Sub and the Company are entering into the Merger Agreement in reliance on the
representations, warranties, covenants and other agreements of the Principal
Stockholder set forth in this Agreement and would not enter into the Merger
Agreement if the Principal Stockholder did not enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which
are hereby acknowledged, intending to be legally bound hereby, Buyer, Merger Sub
and the Principal Stockholder agree as follows:
1. Defined Terms. All capitalized terms used but not specifically
defined herein shall have the meanings ascribed to such term in the Merger
Agreement.
2. Agreement to Vote. The Principal Stockholder hereby agrees that,
from and after the date hereof and until the Termination Date (as defined in
Section 18), at any meeting of the stockholders of the Company, however called,
or in connection with any written consent of the stockholders of the Company,
the Principal Stockholder shall appear at each such meeting, in person or by
proxy, or otherwise cause the Voting Shares to be counted as present thereat for
purposes of establishing a quorum, and the Principal Stockholder shall vote (or
cause to be voted) or act by written consent with respect to all of the Voting
Shares that are beneficially owned by the Principal Stockholder or as to which
the Principal Stockholder has, directly or indirectly, the right to vote or
direct the voting, (a) in favor of adoption of the Merger Agreement and the
Merger and the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement; (b) against any action that is intended
to, or could reasonably be expected to, impede, delay or prevent the
consummation of the transactions contemplated by the Merger Agreement; and (c)
against any Acquisition Proposal made by any person other than Buyer or any of
its Affiliates. The Principal Stockholder hereby agrees that it will not enter
into any voting or other similar agreement or understanding with any person or
entity or grant a proxy or power of attorney with respect to the Shares prior to
the Termination Date (other than a proxy or power of attorney to an officer of
the Company that may be exercised solely in accordance with this Section 2 and
except as provided in Section 3 below) or vote or give instructions in any
manner inconsistent with clause (a), (b) or (c) of the preceding sentence. The
Principal Stockholder hereby agrees, during the period commencing on the date
hereof and ending on the Termination Date, not to, and, if applicable, not to
permit any of the Principal Stockholder's Affiliates to, vote or execute any
written consent in lieu of a stockholders meeting or vote, if such consent or
vote by the stockholders of the Company would be inconsistent with or frustrate
the purposes of the other covenants of the Principal Stockholder pursuant to
this paragraph. As used in this Agreement, "person" shall have the meaning
specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
3. PROXY. SUBJECT TO SECTION 18 HEREOF, THE PRINCIPAL STOCKHOLDER
HEREBY GRANTS TO, AND APPOINTS EACH OF XXXX XXXXXXXXXX, XXXXXX XXXXXXXX AND
XXXXX XXXXXX, ACTING INDIVIDUALLY OR COLLECTIVELY IN THEIR RESPECTIVE CAPACITIES
AS OFFICERS OF BUYER, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED ANY SUCH
OFFICER OF BUYER, AND ANY OTHER PERSON DESIGNATED IN WRITING BY BUYER, EACH OF
THEM INDIVIDUALLY, THE PRINCIPAL STOCKHOLDER'S PROXY AND ATTORNEY-IN-FACT (WITH
FULL POWER OF SUBSTITUTION) TO VOTE OR ACT BY WRITTEN CONSENT, TO THE FULLEST
EXTENT PERMITTED BY AND SUBJECT TO APPLICABLE LAW, WITH RESPECT TO THE SHARES IN
ACCORDANCE WITH SECTION 2 HEREOF IN RESPECT OF ANY MATTER SPECIFIED IN CLAUSE
(a), (b) or (c) OF SUCH SECTION 2. THIS PROXY IS COUPLED WITH AN INTEREST AND
SHALL BE IRREVOCABLE. EACH STOCKHOLDER WILL TAKE SUCH FURTHER ACTION OR EXECUTE
SUCH OTHER
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INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND
HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY SUCH STOCKHOLDER WITH RESPECT TO
THE SHARES. NOTWITHSTANDING THE FOREGOING, NEITHER BUYER NOR ANY OF THE
AFORE-NAMED PROXIES SHALL EXERCISE THE POWERS SET FORTH IN THIS SECTION 3 UNLESS
AND UNTIL BUYER SHALL HAVE RECEIVED ALL APPLICABLE REGULATORY APPROVALS REQUIRED
UNDER APPLICABLE LAW FOR SUCH EXERCISE.
4. Representations and Warranties of Buyer and Merger Sub.
Buyer and Merger Sub represent and warrant to the Principal Stockholder as
follows:
a. Each of Buyer and Merger Sub is a corporation duly
organized, validly existing and in good standing under the laws of the
state of Delaware.
b. Each of Buyer and Merger Sub has the requisite corporate
power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement by
Buyer and Merger Sub and the consummation by Buyer and Merger Sub of the
transactions contemplated hereby have been duly authorized by the
respective Boards of Directors of Buyer and Merger Sub and no other
corporate proceedings on the part of Buyer or Merger Sub are necessary to
authorize the execution and delivery of this Agreement by Buyer and Merger
Sub and the consummation by them of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Buyer and Merger
Sub and (assuming the valid authorization, execution and delivery of this
Agreement by the Principal Stockholder) is a valid and binding obligation
of each of Buyer and Merger Sub, enforceable against each of Buyer and
Merger Sub in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and general equitable principles (whether considered in a
proceeding in equity or at law).
c. The execution and delivery of this Agreement by Buyer and
Merger Sub do not, and the performance of this Agreement by Buyer and
Merger Sub will not, (i) conflict with or violate the certificate of
incorporation or bylaws of Buyer or Merger Sub, (ii) conflict with or
violate any law, rule, regulation or order applicable to Buyer or Merger
Sub or by which any of their respective properties is bound, or (iii)
conflict with, result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or require payment under, or result in
the creation of any Lien on the properties or assets of Buyer or Merger
Sub pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to
which Buyer or Merger Sub is a party or by which Buyer or Merger Sub or
any of their respective properties is bound, except for any thereof that
would not materially impair the ability of Buyer or Merger Sub to perform
its obligations hereunder or to consummate the transactions contemplated
hereby on a timely basis.
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d. The execution and delivery of this Agreement by Buyer and
Merger Sub do not, and the performance by Buyer and Merger Sub of their
obligations hereunder will not, require Buyer or Merger Sub to obtain any
consent, approval, authorization or permit of, or to make any filing with
or notification to, any Governmental Entity, other than as set forth in
Section 4.2(d) of the Merger Agreement.
e. There is no suit, action, investigation or proceeding
pending or, to the knowledge of Buyer or Merger Sub, threatened against
Buyer or Merger Sub at law or in equity before or by any Governmental
Entity that could reasonably be expected to materially impair the ability
of Buyer or Merger Sub to perform their obligations hereunder on a timely
basis, and there is no agreement, commitment or law to which Buyer or
Merger Sub is subject that could reasonably be expected to materially
impair the ability of Buyer or Merger Sub to perform their obligations
hereunder on a timely basis.
5. Representations and Warranties of the Principal Stockholder. The
Principal Stockholder represents and warrants to Buyer and Merger Sub as
follows:
a. This Agreement has been duly executed and delivered by the
Principal Stockholder and (assuming the valid authorization, execution and
delivery of this Agreement by Buyer and Merger Sub) is a valid and binding
obligation of the Principal Stockholder, enforceable against the Principal
Stockholder in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and general equitable principles (whether considered in a
proceeding in equity or at law).
b. The execution and delivery of this Agreement by the
Principal Stockholder do not, and the performance of this Agreement by the
Principal Stockholder will not, (i) conflict with or violate any law,
rule, regulation or order applicable to the Principal Stockholder or by
which any of the Principal Stockholder's properties is bound, or (ii)
conflict with, result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or require payment under, or result in
the creation of any Lien on the properties or assets of the Principal
Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or
obligation to which the Principal Stockholder is a party or by which the
Principal Stockholder or any of its properties is bound, except for any
thereof that would not result in the imposition of a Lien on the Principal
Stockholder's Shares or materially impair the ability of the Principal
Stockholder to perform its obligations hereunder or to consummate the
transactions contemplated hereby on a timely basis.
c. The execution and delivery of this Agreement by the
Principal Stockholder does not, and the performance by the Principal
Stockholder of the Principal Stockholder's obligations hereunder will not,
require the Principal Stockholder to obtain any consent, approval,
authorization or permit of, or to make any filing with or
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notification to, any Governmental Entity, except for an amendment to the
Statement on Schedule 13D filed by the Principal Stockholder with respect
to the Company.
d. There is no suit, action, investigation or proceeding
pending or, to the knowledge of the Principal Stockholder, threatened
against the Principal Stockholder at law or in equity before or by any
Governmental Entity that could reasonably be expected to materially impair
the ability of the Principal Stockholder to perform its obligations
hereunder on a timely basis, and there is no agreement, commitment or law
to which the Principal Stockholder is subject that could reasonably be
expected to materially impair the ability of the Principal Stockholder to
perform its obligations hereunder on a timely basis.
e. Except as set forth on Schedule I hereto, (i) the Principal
Stockholder's Owned Shares are owned beneficially and of record by the
Principal Stockholder and, except that, certain of the Principal
Stockholder's Owned Shares have been pledged to secure a personal loan,
none of such Owned Shares are pledged or otherwise encumbered in any
manner; (ii) the Principal Stockholder has not appointed or granted any
proxy which is still effective with respect to any Shares other than as
provided in this Agreement; and (iii) the Principal Stockholder has sole
voting power and sole power of disposition with respect to all of the
Principal Stockholder's Owned Shares, with no restrictions on the
Principal Stockholder's rights of disposition pertaining thereto. To the
extent any Owned Shares are pledged or otherwise encumbered by the
Principal Stockholder to secure any obligation, the Principal Stockholder
hereby represents and warrants that he is not currently in default of such
obligation and covenants that he will not take any action, or fail to take
any action, that would result in or cause a default under such obligation.
The Owned Shares constitute all of the shares of Company Common Stock
owned of record or beneficially by the Principal Stockholder. Except as
set forth on Schedule I hereto, all of the Owned Shares are issued and
outstanding and the Principal Stockholder does not own, of record or
beneficially, any warrants, options, convertible securities or other
rights to acquire any shares of Company Common Stock.
6. Agreements of the Principal Stockholder.
a. The Principal Stockholder hereby agrees, until the earlier
of (i) the Effective Time or (ii) the Termination Date, and except as
expressly contemplated hereby, not to (i) sell, transfer, pledge,
encumber, grant, assign or otherwise dispose of, enforce any redemption
agreement with the Company or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, pledge, encumbrance, grant, assignment or other
disposition of, record or beneficial ownership of any of the Shares
(whether acquired heretofore or hereafter) or any interest in any of the
foregoing, except to Buyer or Merger Sub, (ii) grant any proxies or powers
of attorney, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares, or any interest in any of the
Shares, except pursuant to Section 3 herein or (iii) take any action that
would make any representation or warranty of Principal Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling the Principal Stockholder from performing its obligations under
this Agreement.
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b. The Principal Stockholder hereby agrees, until the earlier
of (i) the Effective Time or (ii) the Termination Date, except (i) with
respect to Buyer and its Affiliates, and (ii) for actions taken by persons
in their capacity as officers or directors of the Company in accordance
with Section 6.4(b) of the Merger Agreement, that the Principal
Stockholder shall not, and shall not permit any of its Affiliates or, if
applicable, any director, officer, employee consultant, agent, advisor or
representative of the Principal Stockholder or any of the Principal
Stockholder's Affiliates (collectively, the "REPRESENTATIVES") to (i)
initiate, solicit or encourage, directly or indirectly, any inquiries or
the making of any proposal with respect to any matter described in Section
6(a) hereof or any Acquisition Proposal or (ii) participate in any
negotiations concerning, or provide to any other person any information or
data relating to the Company or any of its Subsidiaries for the purpose
of, or have any discussions with any person relating to, or cooperate with
or assist or participate in, or facilitate, any inquiries or the making of
any proposal which constitutes, or would reasonably be expected to lead
to, any effort or attempt by any other person to seek to effect any matter
described in Section 6(a) hereof or any Acquisition Proposal, or agree to
or endorse any Acquisition Proposal, or otherwise facilitate any effort or
attempt to make or implement such an Acquisition Proposal. The Principal
Stockholder agrees immediately to cease and cause to be terminated any
existing activities, discussions or negotiations with any persons
conducted heretofore by Principal Stockholder with respect to any possible
Acquisition Proposal, or any matter described in Section 6(a) hereof, and
will take the necessary steps to inform Principal Stockholder's
Representatives of the obligations undertaken by Principal Stockholder
with respect to Principal Stockholder's Representatives in this Section 6.
7. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement. Without
limiting the generality of the foregoing, none of the parties hereto shall enter
into an agreement or arrangement (or alter, amend or terminate any existing
agreement or arrangement) if such action would materially impair the ability of
such party to effectuate, carry out or comply with all the terms of this
Agreement.
8. License Agreement. The Principal Stockholder shall cause
the Company and Advanced Life Sciences, Inc. to execute, prior to the
Effective Date, a license agreement as described in Section 7.2(e) of the
Merger Agreement.
9. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed duly given if given in the manner set forth in
Section 9.2 of the Merger Agreement. All notices hereunder shall be given to a
party at his address stated on Schedule I to this Agreement or at its address
set forth in Section 9.2 of the Merger Agreement or at any other address as the
party may specify for this purpose by notice to the other parties pursuant to
this Section 9.
10. No Waivers. No failure or delay by Buyer or Merger Sub in
exercising any right, power or privilege under this Agreement shall operate as a
waiver of that right, power or privilege. A single or partial exercise of any
right, power or privilege shall not preclude any
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other or further exercise of that right, power or privilege or the exercise of
any other right, power or privilege. The rights and remedies provided in this
Agreement shall be cumulative and not exclusive of any rights or remedies
provided by law.
11. Amendments, Etc. No amendment, modification, termination or
waiver of any provision of this Agreement, and no consent to any departure by
any Principal Stockholder or Buyer or Merger Sub from any provision of this
Agreement, shall be effective unless it shall be in writing and signed and
delivered by each party hereto, and then it shall be effective only in the
specific instance and for the specific purpose for which it is given.
12. Successors and Assigns; Third Party Beneficiaries.
a. No party shall assign any of such party's rights or
remedies or delegate any of such party's obligations or liabilities, in
whole or in part, under this Agreement, except that Buyer or Merger Sub
may assign all or any of its rights hereunder to any Affiliate of Buyer or
Merger Sub. Any assignment or delegation in contravention of this Section
12 shall be void ab initio and shall not relieve the assigning or
delegating party of any obligation under this Agreement.
b. The provisions of this Agreement shall be binding upon and
inure solely to the benefit of the parties hereto and their respective
permitted heirs, executors, legal representatives, successors and assigns,
and no other person.
13. Governing Law; Submission to Jurisdiction. This Agreement and
all rights, remedies, liabilities, powers and duties of the parties hereto and
thereto, shall be governed by and construed in accordance with the laws of the
State of Delaware applicable to contracts executed in and to be performed
entirely within that State. Buyer, Merger Sub and the Principal Stockholder
irrevocably agree that any legal action or proceeding with respect to this
Agreement or for recognition or enforcement of any judgment in respect hereof by
brought by the other party hereto or its successors and assigns may be brought
and determined in the Chancery or other courts in the State of Delaware, and
Buyer, Merger Sub and the Principal Stockholder hereby irrevocably submit with
regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the exclusive jurisdiction of the
aforesaid courts and to accept service of process in any manner permitted by
such courts. Buyer, Merger Sub and the Company hereby irrevocably waive, and
agree not to assert, by way of motion, as a defense, counterclaim or otherwise,
in any action or proceeding with respect to this Agreement, (a) any claim that
it is not personally subject to the jurisdiction of the aforesaid courts for any
reason other than the failure to lawfully serve process; (b) that it or its
property is exempt or immune from 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); (c) to the fullest extent permitted by
applicable law, that (i) the suit, action or proceeding in any such court is
brought in an inconvenient forum, (ii) the venue of such suit, action or
proceeding is improper or (iii) this Agreement, or the subject matter hereof,
may not be enforced in or by such courts; or (d) any right to a trial by jury.
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14. Severability of Provisions. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
15. Headings and References. Section headings in this Agreement are
included for convenience of reference only and do not constitute a part of this
Agreement for any other purpose. References to Sections in this Agreement are
references to the Sections of this Agreement unless the context shall require
otherwise. Any of the terms defined in this Agreement may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. The use in this Agreement of the word "include" or "including," when
following any general statement, term or matter, shall not be construed to limit
such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not
nonlimiting language (such as "without limitation" or "but not limited to" or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter.
16. Entire Agreement. This Agreement and the Merger Agreement
embody the entire agreement and understanding of each of the parties hereto,
and supersede all other written or oral prior agreements or understandings,
with respect to the subject matter of this Agreement.
17. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement was not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to specific performance
of the terms hereof, this being in addition to any other remedy to which they
are entitled at law or in equity.
18. Termination. This Agreement and the proxy set forth in Section 3
shall terminate upon the earliest of the following dates (such date is referred
to herein as the "TERMINATION DATE"): (i) the date on which the Merger Agreement
is terminated; (ii) the date on which Buyer terminates this Agreement upon
written notice to the Principal Stockholder (Buyer may so terminate this
Agreement and the proxy set forth herein at any time); or (iii) the Effective
Time.
19. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as
if all signatures were on the same instrument.
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IN WITNESS WHEREOF, Buyer, Merger Sub and the Principal Stockholder
have caused this Agreement to be duly executed as of the day and year first
above written.
DECODE GENETICS, INC.
By:/s/ Xxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: CEO and President
SAGA ACQUISITION CORP.
By:/s/ Xxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Director
XXXXXXX X. XXXXXX, PH.D.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
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